PROPERTY OUTLINE

I. POSSESSION, OWNERSHIP, TRANSFERS

a. Capture

b. Discovery

c. Creation

d. Find

e. Bailment

f. Adverse Possession

g. Bona Fide Purchaser

h. Public Trust

i. Gifts

j. Trusts

k. Wills

II. ESTATES IN LAND

a. Landowner’s Right to Exclude

B. Fee Simple Absolute

c. Fee Simple

d. Tenants in Common

e. Joint Tenants

f. Tenants by the Entirety

g. Rights and Duties of Co-owners

h. Severance and Partition

i. Defeasable Fees

j. Marriage and Estate Rights

k. Life Estate

III. LANDLORD-TENANT

IV. MODERN LAND TRANSACTIONS

V. MODERN LAND USE, PRIVATE AND PUBLIC

Private

Covenants, Easements, Conditions, etc; Subdivision Regulations

Public

Zoning, Police Power Eminent Domain, Regulatory Balancing of Private and

Public

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I. POSSESSION, OWNERSHIP, TRANSFERS

General Rule of Possession: First in Time, First in Right

1) Capture

a) Ferae Naturae (wild animals = fugative): rule of manucaption (Pierson v. Post p. 17)

i) Rationale for manucaption: keeps Butchy from shooting the Philly hunter, and vice versa.

Back in the day fostered competition in killing foxes as well.

ii) Once ferae naturae, always ferae naturae. Only possessed as long as contained.

iii) Cut-offs to manucaption of ferae naturae: Escape, abandonment, treason.

iv) Law of increase: once you own an animal/producer, you own all its’ offspring too.

Exceptions to manucapture rule for ferae naturae:

v) Custom and usage exception (i.e. 1st in iron rule of Ghen v. Rich p. 23)

vi) Indicia of Prior Ownership exception (sparkly collar on wolf)

vii)Animus Rivertendi: animal that returns to captor, domestication. (B&B Elephant)

viii) Constructive knowledge (Canada Ermine fox, shot by fox hunter in GA)

ix) Ratione Soli: Landowner has constructive possession of animals on his land, until they escape.

Discourages trespass. (Ducks in Keeble v. Hickeringill p. 27 ruled on malicious interference with

trade) VS. Res Publis: everyone owns what is on gov’t land

b) Rights below and above the surface: Caves, Gas & Oil

i) From heaven to hell: landowners own beneath and above their land (except FAA zone)

ii) Lone Star Gas : court did not like ferae naturae/ “fugacious” description of oil & gas. Did not

need ferae naturae b/c gas in Lone Star “extraneous” re-injected/pre-owned gas. Plater note:

gas company injected smell could argue indicia of prior ownership.

iii) Old Rule : if you find oil/gas reserve and can capture it, the whole thing is yours. This has

public trust implications due to the “wild orgy of pumping.” Cannot waste on the reversion

(Capt. Drake – cannot light on fire the oil well.)

iv) Current Rule: there is regulatory law overlaid over oil/gas pumping everywhere today.

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2) Discovery bright, shiny, new (!)

a) Must take unambiguous possession of discovered land or goods. Kayaker had it get it’s hands on

the ambergris.

b) Discovery vs. Conquest: two ways to aquire territory in int’l law. Discovery is discovering

hitherto unknown land (the new volcanic island) whereas conquest is taking by force. Both

require subsequent by settlement of the property to retain ownership.

c) Johnson v. M’Intosh : Indians had title of occupancy, not full title.

3) Creation (Intellectual Property)

a) Purpose: to balance rights of creator against rights of public. Creator should reap financial

benefit to reward & encourage R&D. However, we believe in a free market, free exchange of

ideas (Jefferson’s candle lighting). US rewards fair opportunists.

b) Patent: protection of application idea (novel, useful, non-obvious)

c) Copyright: expression of an idea (Cheney silks could be copywritten today)

d) Trademark: words & symbols indicating the source of a product/service

e) INS v. Associate Press p. 50: News as quasi-property, information is public but transmittal can

be considered property. INS trying to reap what it didn’t sow – 1st print.

f) Cheney Brothers v. Doris Silk Corp . p. 55: if you can’t file a copyright, you won’t be protected.

Cheney wins b/c the market demands cheap knockoffs. (swashbuckling)

g) Diamond v. Chakrabarty p. 60: moving definition of property. Patent for microorganism.

h) Moore v. Regents : human body parts NOT property. Therefore Moore lost conversion claim and

scientists allowed patent on cell line.

4) Finder’s Law

Finder's rights are good against all the world, except the true owner. (Armory v. Delamirie

jewel p. 96). Remember Relativity of title. 1st Finder has rights over sub finders.

a) Finder must have intent of dominion and physical control over object.

b) Conversion: common law cause of action for basically stealing. Interfering with possession

use/enjoyment of personal property. Remedies for conversion:

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i) Trover: legal remedy of $ damages from ∆’s conversion

ii) Replevin: equitable relief, force ∆ to return goods to rightful owner π

c) Constructive Possession

d) Finder on Private Property v. Owner of Locus in Quo

i) General Rule: Item found goes to the finder.

Exceptions to finder’s rule:

Goal of all of these is to return item to rightful owner! Or silly feudal rules (treasure trove)

ii) Ratione Soli: item embedded in house or soil goes to the OLQ. Remember owner must be

in possession if not, then no constructive possession (Hannah v. Peel p. 99)

iii) Treasure Trove: Exception to ratione soil: gold, silver, coin, jewels, bullion go to the finder

with the expectation he will alert the police/officials to find true owner.

iv) Trespass: generally to the OLQ, however if trivial trespass then to trespasser/finder

v) Employee/Employer: if item is generally found in the course of duty, then it goes to

employer (i.e. a wallet in a hotel room found by maid hotel owner).

e) Finder in Public Place

i) Lost property: the owner accidentally lost (dropped goods). Goes to finder.

ii) Mislaid property: intentionally placed somewhere (wallet in a barber shop) and then

forgotten. Goes to OLQ with the hopes that owner will return when he realizes.

iii) Abandoment: Intent coupled with actions. TO renounces any claim goes to finder

iv) Shipwreck: p. 109 U.S. has constructive possession of shipwrecks imbedded in territorial water.

Goes against general rule that owner always owns wreck, and finder gets fee.

5) Bailments

a) Temporary transfer of possession TO Bailee. Bailee has rights of possession, but less than

full title. Bailee must assume actual physical control with intent to possess.

b) Generally Bailor cannot rescind bailment before end of the agreement. “reasonable”

c) General Rule: Bailee has a general duty of care to Bailor/TO for the property borrowed. Cannot

d) Bailor can recover from Bailee for breach of duty:

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i) Intentional Harm

ii) Negligence of Intentional Harm: if something is lost or broken, presumption of damage

by Bailee. However Bailee can rebut presumption and evade liability.

iii) Misdelivery: Bailee is absolutely liable if they misdeliver, even w/o fault.

iv) Violation of terms of the agreement.

e) Bailee can also recover in the shoes of the Bailor, BUT only one party can bring recover from ∆.

Bailor however can collect from Bailee. (Rusty Red-Runner)

f) Bailee is NOT a finder. A finder is only liable for gross intentional harm.

6) Adverse Possession

a) Definition: When a “saucy intruder” gains title to another’s property by open, lengthy

possession. Intent not an issue. Does NOT apply to government lands.

b) Ejectment: If the property owner does not bring an action to eject adverse possessor w/in statute

of limitations (longest is 21 years) adverse possessor’s right ripens into full tile. Until then AP

just has vulnerable rights of possession, not ownership.

i) Exception: Disabilities. TO’s Insanity, Imprisonment, or Minority of Age at start of adverse

possession (snapshot) will gain TO up to 10 years past the running of the statute of

limitations to eject. Cannot tack disabilities. Only TO’s disability at the start – does not help

if you’re insane 2 days after start of adverse possession. Disabilities do run to successors

because a successor stands in the shoes of the TO.

ii) Actual or Constructive Knowledge of AP. Did property owner know, or should have

known about possession? If so, and TO didn’t act to eject the he loses. Encourages property

owners to walk their lands or send an agent to do so.

c) Mesne: tort recovery for past damage to real estate. Blocked if statue has run on AP.

d) Purposes: Quiets title, bars stale claims, encourages stewardship, perfects expectations.

e) Elements: POCEAN

i) Possession: Starts the statute of limitations running. Possession must imply full right of

claim.

ii) Open/Notorious: AP’s use must give TO actual or constructive knowledge of possession.

TO should be able to find AP if he walks the land.

iii) Continuous: Must be continuously possessed in accordance with normal owner’s use. Ex:

Summer home only need to continuously possess during summer months (Howard v. Kunto

p. 136). Can be established by Tacking.

iv) Exclusive: Is the AP using the land in a way that excludes other possessors? AP must show

he is either admitting or excluding others on the land.

v) Adverse: Adverse in fact, not intent. AP doesn’t have to intend to AP. Plater doesn’t care

about hostility.

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Note: If TO gives AP permission to occupy, wipes out adverse poss. (Seltzer & Shiftliz)

f) Tacking: AP can pass rights of AP as long as there is privity. (Ex: Prospector, Rancho Grande

dies passes AP to daughter.) Continuity of AP continues in transfer. Remember statute of frauds

for in vivos transfer. Prospector ok b/c of intestate succession. Agent’s possession count

towards tacking in place of AP.

g) Constructive Adverse Possession: Actual possession under a false deed (color of title) once

perfected grants adverse possessor the whole parcel of land, not just the portion adversely

possessed. AP gets both the land bought and the land part possessed – sweet! (Howard v. Kunto

p. 136). However, if there is overlap of parcels w/ another owner and you’re not openly

possessing the overlap, then you do not get that section.

h) Adverse Possession of Easement = Prescriptive Easement. Title right to use another’s land

for a certain purpose (mining, driving). UOCA: use, open, continuous, adverse. Does not require

exclusivity. Ripens faster than AP, generally about 8 years. (Prospector ex.) Adverse in

prescriptive easement: must just be contrary.

i) Adverse Possession of Chattles: same requirements POCEAN, but openness can be hard to

prove. Ripens in a shorter amount of time like PE, again around 8 years.

i) TO should exercise due diligence in finding AP articles (O’Keffee case p. 144).

ii) Discovery rule is the majority rule: adverse possession starts running when the TO knew or

should have known about adverse possession.

iii) MA: Statute of limitations runs from date of POCEAN and if owner does not exercise due

diligence, impossible to show that there is openness. Owner should have constructive

knowledge. You should be looking for your shiznit.

iv) NJ: Statute of limitations runs from the date owner asks for the item back. No such thing as

constructive knowledge.

7) Bona Fide Purchaser

a) BFP is a purchases with:

i) good faith belief seller owns property

ii) pays valuable consideration. (Plater watch example: can’t be purchase way below market

value). Pre-existing debt constitutes value/consideration under Plater’s rules.

b) NO SUCH THING AS A BONA FIDE DONEE. Donee is always vulnerable.

c) General Rule: a purchaser can only buy what the seller had to sell. Example: stolen goods. Even

if BFP (nothing shady to put purchaser on inquiry notice, reasonable price) the purchaser of

stolen goods loses to the True Owner.

d) What about transfer with papers?

e) Exceptions that cut off/restart title so BFP has claim above True Owner:

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Sloppy True Owner (truck owner allowing bailee to advertise on truck, or delivering title papers

along with truck or watch). Strict Gross Foreseeable Negligence (only in Plater land– ex: Plater,

stereo, door open) gives BFP good argument that you’re ridic.

Accession: wood table. The accessor owes the owner for value of wood, but is able to seel the

table. BFP owns table no need to pay owner of wood. Accessor owes for wood and could face

criminal charges.

UCC 2-403(2): See p. 148. Bailment left in a merchant who deals in that goods. Entruster gives

merchant right to sell to a buyer in the ordinary course of business.

Destruction of the Property

Confiscation by the Government. Plater hearts Treason (eminent domain does not typically

restart title). Remember confiscation auction for BFP.

Abandonment (intent coupled with action)

Outrun statute of limitations (adverse possession by BFP that has run statute)

Fraud (This is a dud in many cases. Have to show that the true owner conspired in a fraud to trick

public/BFP to lose their money).

Confusion (mixing of grain between true owner and BFP- seriously)

e) Partial Bona Fide Purchaser: Partial BFP with a cutoff against true owner. Example: watch

partially paid for by BFP for stolen goods. If true owner discovers, then BFP has partial rights.

Remedy is divide the goods by the amount BFP has paid, if not able to divide the goods (like a

watch) then BFP generally gets amount he invested, NOT the % he owns (because of discrepancy

between purchase price and fair market value). So if the watch is worth $10,000, but BFP paid

$40/$100, he gets $40.

8) Public Trust Doctrine : government can restrict private owner of water, gas, etc.

a) Split Title! Government has equitable title while present owner has legal title. Therefore

government has a right to prevent waste on the reversion of its future interest.

b) Pg. 708: Extends to all land covered by the ebb and flow of the tide and all inland lakes and

rivers that are navigable.

c) Reasonable access for fishing, fowling and navigation to foreshore (high water mark or debris

line in Nantucket, etc.) Matthews v. Bay Head Improvement p. 701

d) Riparian Easement: water easement. Right to reasonable use of the water and water free of

pollutants.

e) Public Trust for beaches: Massachusetts and Maine restricted to low water mark. New Jersey

you have broader rights – an easement across dry sand to get to wet sand.

9) Gifts/Gratuitous Transfers

Definition: voluntary transfer of full title property rights to another without consideration.

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a) Inter Vivos Gifts

i) Irrevocable. Once it is made, that’s it otherwise not a valid inter vivos gift.

Requirements

ii) Intent: Donor must have present donative intent to pass title, not just possession. May be

shown by oral evidence. Be careful with the words used by Donor. No such thing as a

future or conditional IV gift in the absence of a trust!

iii) Delivery: Requires actual, constructive or symbolic act giving up dominion and passing

control to Donee. A mere oral statement will not suffice.

(1) Actual Delivery: Duh. Handing over the object. This is easiest to prove. However, not

available if donor needs to retain a life estate, too big to move, etc.

(2) Constructive Delivery: handing over the means of obtaining possession. Example: key

to a house, title papers to a car, “GERANIUMS” for a chest of gold. Also, family

members in the same house have constructive possession. (Gruen v. Gruen: letters

construed as constructive delivery of painting where donor held LE.)

(3) Symbolic Delivery: handing over a part of an item. This is a holdover from livery of

seisin (clod of dirt symbolizing gift of land). Akin to constructive delivery.

iv) Acceptance: Donee’s acceptance is presumed if the gift is of value to Donee, unless there is

clear evidence he did not accept the gift.

b) Delivery by 3rd parties

i) Agent: a Donor can assign an agent. Revocable at any time. Agent cannot deliver after

death of the Donor.

ii) Dual Agent: dies with the death of the 2nd agent. Not revocable by one party.

iii) Escrow: super agency that outlives grantor but only for purposes of delivering a deed.

iv) Trustee: must declare a trust and assign a trustee to deliver a gift. A trust is more flexible

because it survives death of the donor.

v) Innes v. Potter: found constructive trust to get around agency/gift.

c) Causa Mortis Gifts

i) CM gift is made in the face of imminent death. The “poor man’s will.” Any gift in

reasonable anticipation of death is presumed to be causa mortis.

ii) Important Difference: CM gifts are revocable at any time prior to actual death. Any

statement to the contrary rescinds gifts.

iii) CM gift is “perfected” by Donor’s death. Does not have to die of what he thought he would,

so long as Donor dies within the same episode. Until then, a donee of a causa mortis gift is

in a perilous position, because Donor can rescind at any time.

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iv) Recovery from illness results in automatic revocation. In the interim grantee becomes a

bailee to the grantor/bailor but has greater liability than a regular bailee (total liability.)

v) Reasoning: CM are a grudging concession to human nature. Thus courts are more wary of

CM gifts than inter vivos gifts.

vi) Donee must still show: Intent, Delivery and Acceptance. Lawyers for Donor’s estate are

often looking for implied recovation.

d) Plater rule: be imaginative yet precise, especially with delivery. Don’t just hope for a soft

nose court to “find” a trust as in Innes v. Potter. Expect the hard-nosed court in Pulitzer that did

not find a trust, and therefore did not find gifts.

e) Contract trumps a causa mortis gift or an early will. Ex.: Vascilio Changeable.

10) Trusts

Definition: A fiduciary relationship in which the Trustee (can be Creator) holds legal title to property

(res/corpus) for the benefit of beneficiaries who hold equitable rights.

a) A trust survives the Creator. This is a way around present delivery.

b) Trusts once declared are NOT revocable.

c) Creation: by Declaration of Trust. Can be oral according to Plater (over the phone with a

witness) and Creator must state that it is a trust, name a trustee, trustee’s rights/duties, name the

goods in trust and the beneficiaries. NO dry trusts (with no terms, no res).

d) Trustee Responsibilities and Rights

i) Fiduciary Duty: to abide by the terms of the trust and do the procure the best possible

outcome for benes. Fiduciary means the Trustee is held personally liable for any errors, so

correction of those errors comes out of Trustee’s pocket.

ii) Trustee has broad discretion in exercising duties so long as they are in the best interest of the

Trust/Beneficiaries.

iii) Beneficiaries can sue Trustee for mismanagement.

e) Court has the right by C’ypres to amend a trust if there is an aspect that is invalid.

f) Inter Vivos Trust: presumed to be irrevocable, unless it specifically states that it is revocable.

g) Beneficiary can be non-human (Constructive Trust). Helmsely dog. Encourages you to make

money because you can do what you want with it.

11) Wills

a) Testate: decedent dies with a will. (Executor)

b) Intestate: decedent dies without a will, and property and debts are settled by law. Generally

goes to spouse/children then to other family, finally to the government (Deval Patrick is last in

line). (Administrator court appointed in absence of will.)

c) You can die partially testate and partially intestate, if will doesn’t accurately reflect estate.

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d) A will must have witnesses to be binding.

e) Holographic Will

i) Holographic = entirely written in the decedent’s own handwriting. Can be valid without

witnesses if you can prove it was decedent’s handwriting. Not valid in Massachusetts.

f) The last version while the decedent is still competent is binding.

g) Competency: A Competent Creator must:

i) Know who he is,

ii) What his assets are,

iii) Who he wishes to favor, and

iv) Have a logical design to distribute assets amongst those he favors.

v) No elements of delusion or psychosis can affect those elements. Also long as those 4

elements are present, the will cannot be broken. If one of those elements has a psychotic

element, then the will is invalid. Loose definition of crazy (Pendarvis case)

h) Snapshot Inventory at Death: all property owned and all debts owed.

i) First all debts are settled

ii) Then any valid gifts out of the estate are made via Testamentary Trust, In Vivos Trust or

Testimentary gifts. Gifts made with the intent to defraud the spouse/heir can be repealed.

Fraud on the widow’s share!

iii) Anything given after the writing of the will and before death via inter vivos or causa mortis

gift is struck from the will b/c of “snapshot.”

iv) A will has no effect until death.

i) Devisees/Legatees: devisee is one who receives real estate in a will, legatee is one who receives

personal property in a will.

j) Equitable conversion: if you are under contract of sale but haven’t transferred the property it is

considered personal property for purposes of the estate and family cannot void sale. Exception

for option contracts – those can be voided.

k) Doctrine of C’ypres: as close as possible to the Decedent’s intent. Example: Helmsley leaves

millions to her Chihuahua. Can redirect to animal shelters, other charities.

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II. ESTATES IN LAND

Remember: the basis of U.S. landownership is feudal law. Reflects old feudal power relationships,

and power relationships trump commercial relationships.

1) Landowner’s Right to Exclude : Basic right of a property to include or exclude others as he sees

fit. (Jacque v. Steenberg Homes, Inc. – prop owner does not have to grant a right of way across his

land.) Violation of such right to include/exclude confers remedies on the owner to do away with

“self-help.”

a. Restricitions

i. Cannot use your land to exclude State Agencies

ii. Use of your land cannot interfere with another’s rights. Example: civil rights

lawyers/doctors (State v. Shack p. 86). Tort restriction on use, wrapped up in

property law.

2) Fee Simple Absolute

a. Definition: full title ownership (legal/equitable) with no remainder interest or conditions.

Potentially infinite duration. Fullest form of title ownership.

b. Rights

i. Divisible: can sub-divide property.

ii. Descendible: Free to pass to heirs or in wills. (Statute of Wills established)

iii. Assignable: can transfer any and all rights as you see fit.

iv. Right to Exclude: as above.

v. Right to Abandon: except in Pennsylvania.

c. Creation

i. Common law the phrase “and his heirs” was required to create FSA.

ii. Modern law now the assumption is grantor is passing the greatest estate he owns.

No longer need magic “and his heirs” rather there is an assumption that if grantor

has fee simple absolute that is what he is passing

3) Fee Simple : anytime there is non-absolute full title ownership. If there is a condition (something

that may or may not happen) leading to a defeasable fee fee simple.

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4) Tenancy in Common

a. Definition: concurrent ownership, where each tenant has an undivided interest in the

property, including the right to 100% possession. No survivorship rights between tenants

in common.

b. Creation

i. Express

ii. Will OR Intestate Succession

iii. Adverse Possession (theoretically)

c. Tenancy in Common is presumed if co-ownership is ambiguous. Exception for

married couples in some of the states with tenancy by the entirety. P. 277

d. Alienability: each owner can transfer all or part of her share independently.

e. If one common tenant is a debtor, the creditor can force a partition of the debtor’s share

of the property. Not sure if partition by sale or partition in kind.

f. If you die intestate the presumption is your heirs will get tenancy in common.

5) Joint Tenancy

a. Definition: co-tenants own an undivided share of the property w/ survivorship rights.

b. Four Unities Required of Joint Tenants:

i. Time: Must take tenancy at the same time

ii. Title: By the same instrument

iii. Interest: With identical interests

iv. Possession: Equal right to possess the whole property (every tenant has a right to

raise Gladiolas on 100% of the property)

c. Alienation: severs one of the unities. Unilateral action to sever one of the unities in a

joint tenancy and turns it into a tenancy in common. Generally should satisfy Statute of

Frauds/written memorandum.

i. Conveyance: severs joint tenancy.

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ii. Lease: some states view leases as severing joint tenancy others do not.

iii. Agreement: Joint tenants can agree that one tenant has right to exclusive

possession w/o severing joint tenancy.

iv. Divorce: does NOT terminate joint tenancy unless specifically stated.

v. Example: S wartzbaugh v. Sampson : alienation created a tenancy in common.

Was not able to successfully oust or eject, but could have requested half of lease

fee.

d. Not Divisible or Descendible

e. Creditor of one party: is allowed to file a lien on the debtor’s portion of property.

6) Tenancy by the Entirety

a. Definition: joint tenancy ONLY between husband and wife. Not severable by one party.

Cannot destroy the right of survivorship.

b. NO alientation or right of partition in tenancy by the entirety.

c. Five unities: all those of joint tenancy plus marriage.

d. Creditior on one party: majority of states a creditor cannot attach a lien on the property

owned as tenants by the entirety. After divorce is different.

e. Divorce: ends the marriage and thus severs the tenancy by entirety. Goes to either

tenancy in common or joint tenancy.

f. Note: only recognized in about half the states. Like joint tenancy on crack.

7) Rights and Duties of Concurrent owners :

I. Duty to Account

a. Rents

i. One party does not owe rent to other co-owners (Spiller v. Macker)

ii. Rents of 3rd parties must be shared between co-owners

iii. Example: 5 children own property as concurrent owners. Duty to redistribute 3rd

party rents. Each has 100% right to raise Gladiolas on all the land. You are able

to keep the profits you make. Exception: in South Carolina, Gladiolas raised by 1

party must be shared with all co-owners.

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b. Repairs

i. No automatic right to collect expenditures for repairs from other owners

ii. Can deduct repairs from rents if you’re collecting from 3rd party renters

c. Taxes

i. No rule on who has to pay – basically who blinks in a staring contest

ii. No automatic right to collect share of taxes from other owners.

iii. If 1 party paid more than his fair share that is assessed at partition. However, if

the 1 party also had sole use, then likely value of use outweighs cost of taxes.

d. Improvements

i. Improver does not get value of improvements put in

ii. However, does get increase in value at partition.

e. Partition is the only way to recoup expenditures b/c it is the only way into equity.

II. Ouster: illegal booting. One co-tenant ousts another co-tenant by denying right to

possession. Ousted co-tenant is entitled to reasonable rental value from the ouster.

III. Adverse Possession: exclusive possession is not sufficient. Co-tenant can become an

adverse possessor only upon clear notice of repudiation of the common title (ouster followed by

a ripened AP under the statute in that state.)

8) Severance and Partition:

a. Severance: severing is the 1st step to partitioning joint tenancy. A destruction of one of

the unities severs the joint tenancy and creates a tenancy in common among the co-

owners.

b. Partition: divides the previously undivided interests. Cotenants have an absolute right to

partition at any time. Hope to have cotenants themselves find a remedy. NOT available to

tenants by the entirety, only tenants in common and joint tenants.

c. Partition in Kind: Judicial action for physical division to individual interests.

Presumption is in favor of partition in kind.

d. Partition by Sale: Judicial action forcing the sale of the land where proceeds are divided

up proportionally. Burden is on the parties to demonstrate that partition in kind would

not do the trick. Used if the land is not easily physically dividable.

e. Matter of Equity: Preference is for the parties to sort out partition by sale or in kind on

their own. In the absence of an agreement, courts will decide what is in the best interest

of all and divide in kind or by sale. Sometimes they don’t get it right (examples: Delfino

v. Vealencis p. 292; White citizen’s council systematically forcing the sale of black

owned tenancies in common.)

9) Defeasible Estates : not descendible estates. Some other future interest/fee simple is reserved.

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a. Waste

i. Affirmitive waste: intentional waste that substantially reduces the value of land.

ii. Permissive waste: negligence – failure to maintain property adequately. Failure

to pay taxes is considered a waste on the reversion.

Difference between affirmative and permissive waste: sledgehammer to the

bathroom vs. rancid bathroom.

iii. Ameliorative waste: valid defense to waste if your waste improves the value of

the property without changing the substance of the property. Example: the B-

school students who turned Tennessee house into a bar. However that changed

the property so ameliorative waste argument failed.

b. Fee simple determinable: fee simple with a condition that if broken, the property

automatically reverts back to the grantor (or remainder to 3rd party.)

c. Fee simple subject to a condition subsequent: fee simple with a condition that if

broken, affords the holder of the reversionary or remainder interest to exercise their

option to take back the land. NOT automatic – requires an act to claim interest.

d. Reversion vs. Remainder: future interest. Reversion goes to original grantor, remainder

goes to a 3rd party.

e. Life Estates can have a reversionary/remainder interest. Example: condition of a life

estate is not to smoke a cigar.

f. Equity abhors forfeiture; therefore if evidence regarding breaking of the condition is

debated, there is a presumption for the current fee simple owner. Courts tend to be more

lenient towards the present possessor.

10) Life Estate :

a. Definition: Estate that ends with a person’s death (either LE owner or another). Present

possessory estate, less than full fee simple estate.

b. Waste: LE owner has full rights of use and possession EXCEPT cannot waste on the

reversionary owner’s reversion interest. Failure to pay taxes is considered a waste on the

reversion.

c. Fixtures are a part of the land. Fixtures are not personal property so they stay on the

land at the end of the LE.

d. Plater Tip: If you lease a life estate get Life Insurance on the life that measures the life

estate. That is a way to insure you recoup your investment.

e. LE is under no requirement to insure property. However, if they do insure and the

property is destroyed the proceeds are entirely his, not the future int. holder.

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11) Estate/Marriage Rights

a. 1st: check for a will. Figure out executor. No will – court appoints administrator.

b. 2nd: inventory of assets. As an executor of an estate, if you don’t look for assets then

breach of fiduciary duty. Example: Dan as executor of estate with special license plate.

He had to look for asset and could have listed it – except he wanted a future in politics.

c. 3rd: calculated debts

d. 4th Homestead Exemption: a statutory exemption for land that takes it out of the estate.

Does not include calculation of fixtures. So take the parcel of land below the house.

e. Dower: 1/3 life estate in all heritable real estate owned in fee simple (not life estate or

joint tenancy, leasehold) during “coventry” = the marriage even if property was sold

before the death of the spouse without the widow’s signature. If both spouses signed the

sale, then widow cannot collect. *Plater tip: if you’re buying from a married couple,

GET BOTH SIGNTURES! Gross life estate free and clear of debt. This is the best

option for debts that far exceed the value of the assets of the estate. With or without a

will. Irritation value: widow can get a settlement from title owners for 1/3 life estate.

f. Elected/Statutory Forced Share: if a spouse has been disinherited then she can force a

share of net property, both real and personal property. If there are no children then

spouse gets 1/2 interest, if children then spouse gets 1/3 interest.

g. Fraud on the Widow’s share: when donee knows of intent to defraud spouse of her

valid future share of estate.

i. Remedy: Implied Trust. Anyone who received a benefit is a Trustee. Correllary

constructive trustees: other owners, golfing buddies. Spouse is Beneficiary.

ii. Court assess the equitable division.

h. Decedent living in two states – two states can collect. Campbell example: NYC and PA

both states collected estate taxes. Lesson: switch to single state residence before death.

i. Community Property States: gifts during marriage go to one party. Any property or

income during marriage are pooled and split 50-50 upon divorce. Upon death property

also considered split 50-50 so a decedent can write a will for his 50%. Accounting of

spouse’s career or celebrity can be considered “marital property” for the purposes of

equity. (Elkis v. Elkis: wife putting husband through school.)

j. Alimony/palimony: fairness principle not based on earnings. Do no have to be married

to collect. Will not get property just an equitable payment.

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III. LANDLORD-TENANT

1) Introduction :

a. A tenant has a right to possession.

b. A lease is both a conveyance of a non-freehold estate in land and an overlaid contract.

2) Tenancy for a Term of Years

a. Definition: a tenancy with a beginning and end fixed time from the outset, usually for a

calendar period (i.e. a month or a year).

b. Can also be until the occurrence of an event, such as the end of a war.

c. Expires without notice at the end of its specified time.

3) Periodic Tenancy

a. Definition: a tenancy for a fixed period of time that continues for succeeding periods,

such as month to month or year to year, until either the landlord or the tenant gives notice

of termination.

b. Creation:

i. By rent agreement: implied when a rent agreement has no termination date instead

rent is due monthly or yearly.

ii. By operation of law: created where the tenant holds over after the lease expires or

where he takes an invalid lease AND in both cases the landlord accepts rent or

otherwise shows acceptance/novation.

4) Tenancy at Will

a. Definition: a non-freehold estate terminable at the will of either landlord or tenant.

b. Creation: generally arises by operation of law (via death, agreement to let family member

live in home, etc.)

c. Courts don’t like tenancy at wills.

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d. Oscar in VV: apparently you don’t have to pay to be a tenant at will

e. If only one party has the right to terminate: NOT a tenancy at will . Garner v. Garrish:

only the tenant had the right to terminate, so the court found that he had a life estate

instead of a tenancy at will.

f. NOT assignable : will automatically terminate if assigned.

g. Notice to Terminate : modern statutes generally require 30 days notice or time equal to

interval of payment in order to terminate a tenancy at will.

h. Exceptions: terminates automatically

i. At the death of the landlord or tenant,

ii. By sale or transfer by landlord, or

iii. If tenant attempts to assign.

5) Tenancy at Sufferance (Holdover)

a. Definition: Created when a tenant has wrongfully held over after a rightful

occupation. Short-lived. Arise after the expiration of a lease or sale of a property.

b. Remember Oscar in VV: could be construed as a tenant at sufferance, depending on his

right to be on the premises.

c. Landlord has an election at the expiration of the lease, either:

i. Evict, or

ii. Give consent to a periodic lease based on the previous interval of payment

(generally a month). Maximum extension of lease is 1 year (Kretchel v. Poel.)

d. If landlord accepts payment for the previous time period, i.e. a month, then the landlord is

found to have given consent and created a new periodic tenancy Novation.

e. If landlord does nothing the tenancy turns into a periodic tenancy based on the interval

that rent was paid.

f. No immediate trespass – but if landlord attempts to evict, then becomes a trespasser.

6) Right to Quiet Enjoyment Implied Warranty of Habitability

a. NO implied warranty of habitability under common law (Franklin v. Brown: horse

stable in the backyard.) Only a right to quiet enjoyment. Relief only if breached by

landlord.

b. Duties and Rights at Old Common Law Pre-Javins

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Landlord Tenant

Duties - Can’t breach tenant right to quiet

enjoyment

- Convey right to possess

- Disclose latent defects before harm (but can

be after signing lease)

- Repairs must be done with reasonable care

- Pay feudal incidents (rent)

- No waste on the reversion

- Ordinary Repairs (failure can lead to tort

liability)

-Allow ordinary inspection

Rights - Collect feudal incidents (rent)

- Acquire reversion free of waste

- Can inspect premises for waste at

reasonable times with notice

- Receive notice of detriment/waste

- Right to refuse assignment or subleasing

- Right to possession and use

- Right to quiet enjoyment

- Right to exclude and defend (except for

landlord inspecting for waste w/ notice)

- Right to sublease/assign unless restricted

- Tenant can leave if landlord fails duties

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c. Exceptions under common law for no implied warranty that the premises are habitable or

fit for purposes intended:

i. Furnished house for a short term (watering spot spa in Saratoga). More like a

commodity/hotel than lease. Also, usually far away so it didn’t give tenant the

opportunity to inspect the premises before leasing.

ii. Latent defects known to landlord must be disclosed before occupancy.

iii. Landlord must inspect and repair all defects in common areas.

iv. If landlord is making voluntary repairs, must be with reasonable care.

d. Tenant’s only recourse was though the right to quiet enjoyment, breach of which if

serious enough, could be construed as constructive eviction. However, result was the

tenant didn’t have to pay, did have to move out.

e. Reforms through Saunders

i. Tort reform: timing of notice of latent defects. Statutory reform: Field Code.

ii. Major issue until Saunders: only argument was constructive eviction. CE was a

help because if the court found constructive eviction at least the tenant did not

have to pay for derelict property BUT the tenant also had to move out b/c you

were arguing eviction. Based on the common law right to quiet enjoyment. Also,

if the tenant lost in court he was forced to pay 2 rents. He had to pay evicted

premises rent though he was still evicted PLUS new rent.

iii. Brown v. Southhall: Prior to this case courts held that if there were violations of

the housing code when the lease was made that the lease was void due to

constructive eviction.

f. Saunders: DC landlord case

i. Goal of Saunders: to create the implied warranty of habitability and a contractual

overlay to landlord tenant law.

ii. Failed: the landlord won, because the court saw this as legislating from the bench.

The court thought the legislature was the proper body to enact the kind of

sweeping change/regulation the Saunders case sought.

iii. Court did recognize the issue of retaliatory evicitions, but because the tenants did

not win, that concept was not cemented.

g. Javins

i. Same case as Saunders on appeal – DC Circuit Court of Appeal. Skelley Wright.

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ii. Court found for the tenants: the times have changes and so should the law.

1. Lease should be more like a contract b/c it is a bundle of services and has

the nature of a commodity more than an estate.

2. We are no longer in feudal England. Tenants and landlords are in cities,

not the countryside giving feudal services when the king needs them.

iii. Found implied warranty of habitability under the housing code. Up to the

tenant to enforce b/c the regulatory bodies were not doing their job of

enforcement.

iv. Remedies: breach of implied warranty of habitability entitles tenants to:

1. Damages, restitution and rescission.

2. Rent abatement: reducing rent to reflect value of property in its actual

condition.

3. Withholding rent: including repair and deduct.

v. Retaliatory Eviction: because it is up to the tenant to enforce, landlord cannot

evict tenant just due to filing a claim.

vi. Landlord’s responsibilities and liability greatly increased post-Javins, without

increase in rights. Still just allowed to collect rent, check for waste and receive

property without waste on the reversion.

7) Landlord’s Tort Liability and Duty to Repair

a. Landlord generally did not owe a duty of reasonable care to tenants or 3rd parties.:

Exceptions for tort liability to tenant or 3rd parties as follows:

i. Latent Defects

1. If a landlord knows or should know of a dangerous condition and has

reason to believe that the tenant will not discover it, they are liable for

injuries caused by the condition if they did not disclose to the tenant

(wallpaper over back staircase.)

2. No liability after disclosure to tenant.

3. Defect must be present at the beginning of the lease for the landlord to be

liable for injuries caused by the defect

ii. Common Areas: Landlord was still in possession of common areas, so

responsibility to keep them in reasonable repair. Tort liability.

iii. Public Use: there is a liability for injuries caused to members of the public if the

landlord knew or should have known of the defect and knew the property would

be open to the public.

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iv. Voluntary repairs: if the landlord voluntarily undertakes repairs, then he had a

duty of reasonable care in making repairs. Tort liability Perverse disincentive

to repair.

b. Post-Javins

i. Implied warranty of habitability created contractual duties to repair premises.

ii. Damages: comes from a contractual overlay so only recovery for cost of repairs.

iii. Any violation of the implied warranty of habitability results in the landlord having

to repair, regardless of fault. Now you’ve flipped from perverse disincentive to

repair to almost strict liability.

iv. However there is evolution of warranty as BOTH tort and contract.

8) Landlord’s Rights when Tenant Breaches

a. If Tenant fails to pay rent: Landlord can move to evict but CANNOT resort to “self-

help” remedies, i.e. taking chattle, changing locks, etc.

b. If Tenant wrongfully abandons property: landlord can:

i. Surrender: choose to accept surrender and lease is amicably terminated.

ii. Ignore: and hold tenant liable for rent remaining.

iii. Relief: landlord can choose to lease the premises to another tenant. Previous

tenant is just responsible up to the point new tenant assumes risk.

iv. Mitigation: growing trend but not the rule to require landlord to make reasonable

efforts to re-lease premises on tenant’s behalf.

9) Assignment and Subletting

a. Unless the lease prohibits, tenant can assign her interest in the leasehold.

b. Original landlord and tenant always have privity of contract.

c. Remember: a landlord can collect full originally agreed rental price from either original

tenant (privity of contract) or the current holder of the estate (privity of estate.)

d. Assignment: a tenant’s transfer of full remaining interest in the lease. Privity of estate

moves from L – T1 to L – T2.

e. Sublease: a tenant’s assignment of less than full remaining interest.

f. Right of Reversion: if tenant retains a reversion, or an easement of use, sublease not

assignment is assumed.

g. Right of Entry: at common law considered an assignment because no reversion is held.

However today a court would likely look at the parties’ intent to determine sublease vs.

assignment.

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h. Dumpor’s Rule: once the landlord waives any right under a lease, such as approving

assignments, he gives it up forever. Landlord cannot re-instate that right, such as

blocking future assignments. Exception: if the landlord specifically states “this is a one

time only approval.”

i. Novation: a new contract that subsumes prior contract. Can occur via action rather than

just explicit agreement by landlord.

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IV. MODERN LAND TRANSACTIONS

1) Prior to Closing

a. Offer

i. An offer is a binding contract for sale. Generally superseded by P&S.

b. Purchase and Sale Agreement

i. Novation: the P&S is a novation to the Offer Contract.

ii. If you rep the Buyer make transfer conditional on obtaining mortgage

financing and inspection of the premises not just the land for physical defects.

c. Statute of Frauds: any conveyance of an interest in land, except for leases < 1 year must

be in writing. Remember Placemat rule for the creation of Reston, VA. You can record

the contract evidencing a sale so long as it has the basics:

1. Parties to the sale

2. Description of the Property

3. Date of sale – if none stated, court will imply a “reasonable time”

4. Price – must be in writing; maybe not definite but gives a starting point to

determine remedy.

5. Signature of the signed by the party conveying/to be enforced against.

d. Part Performance: when actions undertaken under an oral contract for land are

extensive enough that justice requires awards specific performance.

e. Estoppel: stops one party from denying an oral contract for sale when one party has been

induced by the other party to substantially change his position in reliance on the contract.

Action of equity. Hickey v. Green.

f. Title Search – see below

2) Split Title/Doctrine of Equitable Conversion

a. As soon as the P&S agreement is executed, then Seller has legal title and Buyer has

equitable title. If the property is damaged between P&S and closing, Buyer still has to

take whatever is left and pay full agreed purchase price.

b. At closing equitable and legal title merge into the Buyer

c. Advice: if you represent Buyer, make him take out insurance

d. Uniform Purchase & Sale Risk of Sale Statute: the party in possession has duty to insure.

3) Seller’s Duty to Disclose Defects

a. Must disclose latent physical defects, not noticeable under reasonable inspection

b. Old rule: Seller didn’t have any duty to disclose he just couldn’t lie about a condition.

c. Stigma: the ghost case (you have a duty to disclose).

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d. NJ/MA: duty to disclose regarding neighboring lands and toxic waste.

4) Marketable Title :

a. Duly recorded

b. Implied warranty of marketable title. Seller makes an implied promise that on the day

of conveyance (not day contract executed) he will convey marketable title, free from

encumbrances and clear of defects. Defects include mortgages, liens, easements,

covenants and privately negotiated use restrictions. Buyer can always take subject to an

encumbrance but he has the right to title free of encumbrances.

c. Express Waiver: if the Buyer waives right to contest an encumbrance in the contract.

d. Violations of marketable title

i. Defect: Anything that opens up the hazard of litigation (Lohmeyer v. Bower.)

ii. Cloud: something that substantially calls into question the Seller’s title and has

the power to void the whole deal.

iii. Flyspeck: something that won’t affect the title. Example: man who sold the

property in 1890 and didn’t transfer dower rights. A mortgage to the property in

1910 for $23.

e. Violations of Public law as encumbrances. Violations of zoning = encumbrance,

violations of building code = NOT an encumbrance. Zoning ordinance is not generally

an encumbrance unless it is passed after the buyer signed the contract or it would

frustrate his proposed use (Lohmeyer v. Bower p. 479) but Lohmeyer was a judge doing

his buddy a favor. Generally zoning ordinances apply uniformly so they cannot be

considered an encumbrance.

f. Private law restrictions (covenants, easements) are always encumbrances.

g. Buyer cannot create a cloud on title to get out of a contract (unfair.)

h. Title Insurance: just insures Buyer or Mortgage company against purchase price.

i. Release/Declaratory Judgment that a restriction is void. This is the way to remove a

cloud on title.

j. As-is clause is generally upheld if included in contract. Acts like an agreement to take a

quitclaim deed.

k. Implied warranty of quality: applies only to purchase of a new house from a builder of

houses who actually built the house.

l. Implied warranty of suitability: prevents against making property unsuitable for its

intended purpose.

m. Seller has the reasonable right to cure encumbrances/clouds.

5) Title System/Title Search

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a. Deed in/Deed out: Buyer’s responsibility to look up and down the chain of title. Real

world requires about 50 years, Plater says go back to deeding from the Crown.

b. Common law: first in time rules. First grantee in time prevailed over subsequent

grantees.

c. Race and Notice statutes: came in to quiet disputes. Encourage people to record.

Remember statutes are an overlay to common law for subsequent Bona Fide

Purchasers! A donee always loses against a BFP.

d. Race statute: First claimant to record wins.

i. NO requirement of Bona Fide. Actual notice of prior claims is irrelevant. Who

knew what is irrelevant.

ii. North Carolina and Louisiana

iii. Record first and you win.

iv. Policy background: efficiency. However encourages shadiness.

e. Notice statute: A subsequent BFP is protected even if not recorded, as long he didn’t

have notice.

i. Bona Fide: a recorder may not win if he has actual, inquiry or constructive notice.

ii. Inquiry Notice: what the purchaser would have found out walking the land.

iii. Constructive Notice is what the purchaser would have found out has she done a

careful title search in the registry of deed.

iv. Policy: less efficient, but protects “rightful” future purchasers. Kind of

contradicts the common law.

v. Shelter Rule: a purchaser from a protected BFP stands in the shoes of the BFP

even if he has notice of competing claims.

f. Race Notice statute: A subsequent BFP is protected against prior unrecorded instrument

only if he records before the prior instrument is recorded.

i. Bona Fide: a recorder may not win if he has actual, inquiry or constructive notice.

ii. Disqualified if you are second and if you have notice.

g. Lis pendens: Notice of pending action on title recorded in registry of deeds. “Reserves”

a plaintiff’s right in property and puts others on notice.

h. Chose in action: equitable title owner cannot take possession, can only take by equitable

action.

6) Deeds and Warranties

a. Statute of Frauds: to transfer an interest in land, Statute of Frauds requires a writing

signed by the grantor. Remember, a Seller’s spouse that did not sign the deed still has

possible dower rights.

b. Consideration: not necessary, but a donee is not protected against subsequent BFP.

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c. Habendum clause: signifies the estate that the grantor is granting to the purchaser. Can

include a condition of racism, etc. Macon, Georgia example.

d. Recording: not necessary, but encouraged. Recording is for the rest of the world, not the

2 parties transferring. Recordation can give buyer additional protections.

e. Delivery: delivery = words or conduct by grantor to show intent to make present transfer.

Can include recordation by grantor without delivery to grantee.

f. Deceased Grantor: deed is effective if the decedent intended the deed to be legally

effective before death. If not effective until death, deed is invalid b/c lack of delivery.

g. 6 General Warranties of Title (p. 515):

i. Grantor is lawfully seized of the premises in fee simple,

ii. Grantor has good right to convey the fee simple,

iii. Premises are free from encumbrances,

iv. Grantor (and heirs) will protect grantee (& heirs) from subsequent claims to title,

v. Grantor (and heirs) guarantees quiet enjoyment (against title), and

vi. Grantor (and heirs) will sign any instrument necessary for further assurance of

title to the grantee (and heirs.)

h. General Warranty Deed: Warrants against all title defects (6 warranties above.)

i. Special Warranty Deed: warrants only against the grantor’s own acts that cloud title.

j. Quitclaim Deed: only warranty of marketable title. No warranties after transfer.

k. Estoppel by Deed: when a grantor purports to convey land he does not currently own,

and subsequently acquires title, title passes to grantee under the earlier deed. Grantor is

estopped from claiming the earlier deed null and void.

7) Mortgages

a. Bank has a lien on your equity title.

b. Sounds in equity

c. Equity in house = money you have put in + principle paid + increase in property value.

d. Front loaded interest: when you pay interest up front, principal comes in later. This

results in much smaller up front payments & appearance you can afford more house than

you really can. Often coupled with…

e. Adjustable Rate Mortgage: mortgagor pays a lower rate up front, higher rate kicks in

later. Again gives the sense that one can afford more house than they really can. Makes

sense however if you will only stay in your house for a short time.

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f. Installment Sales Contract: “poor man’s mortgage.” Payment plan where the Buyer

pays Seller - Installment sales contract. Don’t ever let your client get one, but if he does

record it so it acts like a regular mortgage and sounds in equity. If it goes unrecorded

then the Buyer has no rights and it screwed if they miss even one payment – they lose

money paid and the land. Don’t do this!

g. Judicial Supervision: if the court oversees foreclosure.

h. Equity of Redemption: foreclosure isn’t certain. Property owner foreclosed upon can,

within a reasonable time, pay off all the costs and come back into ownership.

i. Banks dislike b/c it creates non-marketable title for bank.

ii. Some statues have enacted a mortgagor’s power of redemption so a judge must

give the mortgagor opportunity to pay back.

iii. Some judges have begum to protect the bank by setting a date for strict

foreclosure after which the judge cuts off all equities of redemption.

i. Foreclosure:

i. Foreclosure by sale. Banks would always prefer foreclosure by sale because they

want their money back.

ii. Foreclosure by deed. Rare - bank takes the land and forgives the debt.

iii. Foreclosure by equity of redemption: additional step that cuts off the borrower’s

right to equity of redemption. This would only happen after foreclosure by sale or

deed.

iv. Banks prefer to work with owners and keep them in the house

v. Breach of good faith: fair market value v. price at foreclosure.

vi. Breach of due diligence: fair price for the property v. price at foreclosure. There

must be sufficient legal notice, essentially covering your ass.

vii. If price at foreclosure “shocks the conscious” the court can intervene.

viii. Overage goes to the Borrower.

ix. Deficiency judgment: goes to the Bank. If borrower still owes an excessive and

the court will allow attachments to other property to make up the difference

(though there are limits.)

x. If multiple mortgages, who is paid first? No clear answer, so there is an equitable

partition of the foreclosure amount between parties. (Marshalling: idea that if one

mortgagee has interest in another property, then the single mortgagee gets to

recover first from multiple mortgaged property.)

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V. PRIVATE LAND USE CONTROLS

1) Easements

a. Definition: An easement is a grant of interest in land, less than fee simple, which entitles a

person to use of the land owned by another.

b. Affirmative/Negative

i. Affirmative: most common easements. They grant a right to go onto another

person’s land (servient land) for a use.

ii. Negative: owner of a negative easement can prevent a servient landowner from

doing some act on the servient land. (4 classic easement recognized in England

listed on p. 736 – blocking light, air, removing support, water in an artificial

stream.) Note: negative easements can only be created expressly in a writing signed

by the grantor. No such thing as a prescriptive negative easement.

c. Appurtenant or In Gross

i. Does it run with the land or does it run with the person?

ii. Easement Appurtenant: runs with the land. Attached to the dominant tenement

and generally passes to any subsequent purchaser.

iii. Easement in Gross: personal easement. Presumed not to be transferable, though

the law is in flux.

1. Profits: implied easement over a servient land for the express purpose of

removing natural resources (wood, hunting). Usually an express grant.

Generally not assignable.

2. Commercial easement: ex – to use a billboard. Exception on transfer –

generally assumed to be freely transferable.

iv. Conservation easement: an easement to preserve open space. Recent development,

see pg. 738.

v. Riparian Easement: water easement. Right to reasonable use of the water and

water free of pollutants.

d. Creation of Easements

i. Express Easement: grant in writing signed by grantor to satisfy Statute of Frauds.

If there is oral permission – license, not easement granted.

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ii. Estoppel: where a license through estoppel becomes an easement b/c cannot be

revoked. Generally a result of licensee’s reliance on non-revocation, which puts

licensee in a worse position (ex: Holbrook v. Taylor: used license to access road to

build house, landowners allowed building of house then revoked license to access

house. Landowner’s estopped from blocking access to new house.)

iii. Implied: Implied by prior existing use (subdivision), implied without prior use:

based on obvious necessity. By reservation or implication – depending on

whether the landowner is reserving an easement for himself or implying one for a

new parcel.

iv. Easement by Necessity: strict landlocked necessity.

1. Generally results from a natural disaster.

2. Courts will limit easement by necessity as much as possible.

3. Terminates when the necessity ends.

4. Grantee must compensate the servient tenement.

5. Self-created hardship: rarely granted, except as to prevent injustice.

Example: buyer purchases under impression of having an easement.

v. Prescriptive: Adverse possession of an easement.

1. UOCA: use, open, continuous, adverse. Does not require exclusivity.

Ripens faster than AP, generally about 8 years. (Prospector ex.)

2. Tacking is allowed

vi. Dedication to the Public:

1. Express easement for the public to have a use on your property. Formally

accepted by a representative of the public (conservation easement?)

2. Implied easement: example, use of a private road for a period of time.

e. Extension/Scope: General rule that an easement can evolve reasonably over time (ex.

easement for a horse and buggy can now apply to cars.) Also true for a reasonable increase

in population. Keep in mind balance of rights.

f. Transfer/Divisibility

i. Generally do not have the right to subdivide an easement beyond its original terms,

except for natural evolution as above. May be able to subdivide an easement

appurtenant if you stop short of overburdening.

ii. Easements appurtenant generally run with the land.

iii. Easements in gross are generally not transferable, except for commercial easement.

g. Termination of Easements

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i. Express Termination: by a written release of dominant owner.

ii. Oral release: not valid unless estoppel applies OR abandonment (act + intent.)

iii. Abandonment by dominant owner.

iv. Destruction of servient tenement extinguished an easement – ex if a meteor falls.

v. Taking of servient estate or easement by the government.

vi. By the terms of the Easement itself.

vii. Unity of Title: an easement extinguished between two parcels if they come under

common ownership. It is NOT automatically revived by a subsequent division.

viii. Misuse: Brown v. Ross p. 720: a dominant owner cannot extend easement for B to

another parcel C that he also owns. Misuse of easement = trespass.

ix. Overburden: specific kind of misuse. Example: Funnel Development (Golden

Pond) subdivision of land with an easement leading to overburdening of the original

easement. Now there’s 35 users, not 1 user.

x. Statute: some states require regular re-recording. If easement is not re-recorded in

interval stated under statute it automatically extinguishes.

xi. Necessity is Gone: example: flood waters recede, or need for easement by estoppel

ends (no longer need to enforce license for equitable reasons.)

xii. Adverse Possession: cuts off title of previous dominant tenement by UOCA.

Remember title to easement is separate from title to servient land.

h. Liability: The individual who maintains use of the easement is liable (shoveling the snow,

injuries on the easement.)

i. Taxes?

2) License : permission to go onto another’s land, fully revocable at any time. License is a contract

masquerading as an easement. What’s an irrevocable easement? An easement.

3) Covenants :

a. Definition: a binding contract between two parties. A promise for a promise, enforceable

by you or the other party.

b. Creation of Covenant

i. A writing is required to satisfy the statute of frauds for a real covenant.

ii. Generally cannot be implied, cannot arise from prescription.

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iii. Exception: negative reciprocal easement.

1. Created from subdivider’s implied promise to burden all lots in a subdivision

with a common uniform requirement. If covenant accidentally left out of

some deeds, later implied. Example: residential only restriction.

c. Types of Covenants

i. Express: covenant runs with the title if it achieves the 5 requirements.

ii. Implied Negative Reciprocal Covenant: burdens all lots in a subdivision with the

same requirement. Gives uniformity. Example: residential covenants are uniformly

applied even if it doesn’t make it on some of the deeds. Inquiry notice: knowledge

of covenant if you look around the neighborhood. Sanborn v. McClaine: actual

notice does not matter. Should look at neighboring deeds. Only enforceable by

equitable remedies/injunction not money damages.

iii. Covenant by Estoppel: you can’t have it both ways. If you enforce a covenant

against the other party, they can enforce it against you. If AP brings claim to

enforce covenant, their land is now bound by covenant as well.

iv. Flex covenant: has to exist at time of subdivision, or can be passed later by 100%

vote to pass flex covenant. Generally requires approx. 66% or greater approval.

Flex covenants are generally a good idea. Without it, you need 100% approval for

any changes or additions to covenants. Rick v. West: hospital – holdout prevented

establishing hospital. There is always “that guy.” Cannot have an unreasonable

effect on tenants (i.e. seeing-eye dog.)

d. Covenant Runs with Title if:

i. Need intent to run: “heirs, successors or assigns”

ii. Consideration

iii. Notice: Actual, Constructive (registry records) or Inquiry (from walking the land)

iv. Enforcer (someone similarly bound)

v. Touch and concern the land. Has to have “oomph.” Example: restriction on

Spanish-style houses touches and concerns, mere aesthetics do not. Interpreted

broadly after Neponsit – homeowner’s fees touch and concern the land.

e. Remedies:

i. Between contracting parties: money damages and/or equity.

ii. Subsequent purchaser benefit: can enforce against burdened contractor or

subsequent burdened for equity. Can only sue for money damages if there was

privity of estate/horizontal privity between contracting parties.

iii. Horizontal privity money damages.

iv. Vertical privity (with running covenant) equitable remedies.

f. Modification of Covenants

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i. By 100% approval

ii. By a Flex Covenants

iii. Courts on the basis of changes conditions – has to be extreme because courts are

fairly unwilling to overturn covenants.

iv. Compensation for resulting harm may be awarded as a result of modifying or

terminating a servitude. Equity can come into play.

v. Subdivision of parcel with covenant – covenant applies to both parcels b/c new

parcel is just a new baby title of an existing title.

g. Covenants can do what the government cannot – be racist, etc. Limited by Shelley v.

Kramer: cannot have a restrictive housing covenant based on race, creed, color or

national origin. Shelley’s “nuclear bomb” of anything private is public b/c it is enforced

by the government not such a good argument. Legislation is a better route: a statute can

takes away your right to restrictive covenant you’re out of luck racist.

i. NOTE: you can be racist in a conditional deed b/c of automatic reverter.

Court doesn’t have to get involved in enforcing a condition in a habendum

clause. Example: park in Macon, Georgia.

h. Most frequently used private land control, though it can also be used by gov’t/public.

i. Covenant is more flexible but less strong than an easement.

j. Role of due process: incorporated from public law. Courts will analyze enforcement of

covenants.

k. Make covenants clear: if unclear or ambiguous, court will find for free enjoyment. Court

will not read restrictions into a covenant by implication. Damian of Molokai case: if there

is an disproportionate effect/unreasonable burden then there is a public law burden on

private law for reasonable accommodation. In this case expanding the definition of family.

l. Termination of Covenants

i. Adverse Possession: covenants do not run into alien title. However, there is the

issue of notice to neighbors. If AP did not put neighbors on notice, a court may not

find it equitable to destroy the covenant.

ii. Abandonment: abandonment does not abolish the covenant. Intent + action +

written notice of abandonment recorded in the registry signifies abandonment.

iii. Unreasonableness:

iv. Functional Obsolesence: radical change in neighborhood so as to nullify covenant.

Incredibly hard to prove.

v. Unconstitutionality: Shelley v. Kramer

vi. Illegality: Molokai

vii. Zoning Ordinance:

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viii. Prescriptive Easement: requires greater action/notice.

ix. Mutual rescission and must be recorded.

x. Novation: subsumed by a new contract. Duly record.

xi. Flex covenant and super majority vote.

xii. Statutes: re-recordation requirements.

xiii. Eminent domain condemnation: must compensate land owners for taking the

value of the covenant.

VI. PUBLIC LAND USE CONTROLS

1) Nuisance – PUBLIC OR PRIVATE

a. Definition: an unprivileged interference with a person’s use and enjoyment of their land.

This is torts for property law.

i. Policy: internalize costs of industry into industry. Could be enforced by

government but that would interfere with free market.

ii. Plaintiff bringing an action must have a property interest affected by nuisance.

b. Remedies

i. Injunctions are most common, but must show that money damages won’t cut it.

This is generally the case with nuisances

ii. Money Damages: reduction in property value. No punitive unless “willful, wanton,

malicious.” Other damages available are: pain and suffering, mental anguish, loss

of quality of life.

iii. Permanent Injunction: Can include reduction of what you’re doing, or not doing the

harm at certain times, in certain conditions. Can sell injuction back to tortfeasor.

iv. Can get some mix of damages and injunction: look at remedies as a timeline.

v. Think about what can give you the greatest remedy given your circumstances.

c. Unintentional Private Nuisance

i. Ask if the defendant’s actions are unreasonable

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ii. Private interference

iii. Requires substantial interference with the use and enjoyment of your land. Would

bother someone of reasonable sensitivity.

iv. Must show actor’s fault. Unintentional result of negligent, reckless or abnormally

dangerous action:

1. Harm or risk or harm

2. Causation

3. Breach of Duty of Reasonable Care

4. Proximate Cause – breach caused harm

v. Defenses

1. State of the Art: all alternatives used. If you’re using the best technology

available.

2. State of the Industry: custom and usage was followed.

3. Balance of Utilities: Compares the gravity of the harm (includes: extent and

character of harm, social value of plaintiff’s use, suitability of plaintiff’s use)

vs. utility of the actor’s harm and impracticality of not doing harm. Not a

calculation of damages – used in assessing a finding of fault.

4. Coming to the Nuisance: your own damn fault.

d. Intentional Private Nuisance p. 642

i. Ask if the plaintiff’s harm is unreasonable

ii. Private interference

iii. Requires substantial interference with the use and enjoyment of your land. Would

bother someone of reasonable sensitivity.

iv. Must show unreasonable harm and intent (not actual malice.) Substantial

certainty of harm is enough.

v. Harder to prove intent – burden on plaintiff. Straight to assessing liability.

vi. Balance of Utilities is only factored in after liability, used in assessing

remedies/whether or not to grant injunction.

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e. Public Nuisance: is not estopped by coming to the nuisance. (If the nuisance existed

before, then

i. Special Injury: must show some special harm, different from other members of the

public. Balance of private/public needs.

ii. Boomer: cement dust vs. something caving in your roof. Cement dust is a uniform

injury, roof caving in from cement dust is a unique injury.

iii. Spur v. Webb: special harm b/c of flies??

f. Ripening into Easements: whole thing with inverse condemnation.

g. Coming to the nuisance: public or private?

h. Lateral and subjacent support: p. 646. Neighbors have the duty to maintain lateral

support to neighboring lots to the extent of natural support. Means no duty to protect

structures on the land from subsidence.

2) Public Law 5 questions for Government Action (a.k.a. is it constitutional?)

a. Authority: what is the statute?

b. Proper Public Purpose:

i. Health, Safety, Welfare: must show specificity.

ii. Not a poison purpose (ex: drive down values for eminent domain taking)

c. Rationally Realted: general or specific application to one client’s situtation.

d. Private Burden: no oppressive burden on private purpose.

first 4 are substantive due process

e. Procedural Due Process: whatever is built into the statute regarding notice and

opportunity for a hearing, plus Mathews v. Eldridge (Plater is not sure if the Mathews

balancing test is enough for ensuring due process.)

3) Eminent Domain

a. Police Power: government’s ability to take private land for a public purpose (public

purpose can be interpreted broadly, i.e. Poletown.)

b. Lawsuit of government against land.

c. Physical invasion of the land.

d. Authority: state authority has authority and must delegate authority to local agency.

e. Proper Public Purpose: remember again there is debate about what constituties a public

purpose (Kelo, Poletown.)

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f. Rationally Related: General/Specific again. Rational basis test: would a rational official

approve this action? Does this specific application make sense (winds blowing the wrong

way for building of Heathrow Airport.)

g. Private Burden: in eminent domain this generally comes down to fights about

compensation. This is a loser lawyer’s argument b/c it comes down to “this is

communism!” instead of attaching PPP or rationally related.

h. Procedural Due Process: notice/opportunity to participate in a hearing, right to review

how decision was made,

i. Presumption for the Government, though that is starting to erode.

j. Basically the court just has to find: Gov’t body has to have the authority, cannot be

arbitrary and capricious, has to be for the purpose stated (p. 1116). Boils down to the 1-3.

Common defenses: ultra vires (authority), irrationality and no PPP.

k. Damages: government will only compensate you for the market value (what a willing

buyer would pay a willing seller) of the property. No guarantee of relocation or

replacement costs.

l. Consequential damages: if the government takes part of your parcel, it has to pay damages

for the remaining part of the parcel. Therefore it makes economic sense for the government

to either take full parcels or not at all. Hence squiggly taking lines.

m. Private-public-private taking: not per se wrong, but subject to heightened scrutiny for

good reason. Ex: Kelo and Pfizer. In response states drafted legislation for higher scrutiny

of private-private eminent domain.

n. Government actions violating 1, 2, 3 are void on their face, whereas 4 or 5 are void as

applied to the particular case.

4) Inverse Condemnation

a. Defintion: private body suing the government claiming uncompensated taking of an

easement.

b. Consider 5 point test b/c it’s as though government is showing constitutionality of taking.

c. This is a suit of the land against the government. Thornberg vs. the agency vs. the land.

d. Physical invasion: loosely defined including loss of light and air, bridge or overpass built

alongside the house, noise and vibration. Ex: Thornberg v. Portland: government created a

nuisance that is the equivalent of an easement. Soft nosed court found physical invasion,

even though there was no entry into their crystal cube (500 foot cube above.)

e. Generally brought to prevent adverse possession that would ripen into a prescriptive

movement.

f. This is a way around nuisance: private individuals can’t sue the government sovereign

immunity. So lawyers developed inverse condemnation to get compensation.

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g. Airport Noise Control Act: you can now sue the government for a noise tort.

h. By definition only damages not injunction. Damages are measured by what the taking has

taken and whatever the fee simple has lost (essentially consequential damages.)

5) Regulatory Taking

a. Definition: such a great regulatory action that although it lacks actual physical taking, it

restricts the use of the land so much that it amounts to a taking. Boils down to whether or

not the government’s action was constitutional under due process (5th and 14th).

b. Often regulatory takings are zoning takings.

c. Does the plaintiff have standing to sue? Initiated by the landowner. Dooley case: the

plaintiff had an option to purchase a parcel so he had standing to sue.

d. 5 Questions:

i. Authority: against State delegates to local government. Remember the one case of

rent control under an organic statute for the federal Office of Price Administration

(Bowles v. Willingham).

ii. PPP: health/safety/welfare. Look for poison purpose, especially in Plater land.

iii. Rationally Related: Dooley case – high ground within 100-year flood plain is not

rationally related to preventing death by drowning (which is a PPP.) Specific

application of PPP.

iv. Private Burden: this is the nexus. Look to the reasonable remaining use. Never

granted highest and best use of land.

1. Time baseline : investment-backed expectations (O’Connor invented this

term). When did you know of the regulation? Before or after purchase?

And what have you already gotten out of the land? Self-made hardships are

not well received (except by Scalia and Rehnquist.)

2. Property baseline : regulated portion of the parcel vs. the entire parcel. What

is the diminution in value of the regulated portion vs. what is the value of the

whole parcel. Brandeis argument vs. Holmes/Scalia. Brandeis was the

dissent in Penn Coal, now the majority opinion.

3. Majority view : look to the long term view and parcel as the whole. But not

required.

4. Lucas Test : super isolated. Lucas isolated to only cases (incredibly rare)

where there is NO reasonable remaining use.

v. Due Process: notice, opportunity for a hearing, Mathews v. Eldridge balance.

vi. Remedies

1. Generally either a regulatory action is constitutional or it is not. So it is

rescinded or it is not, either as applied to the parcel or generally.

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2. BUT in Plater land…the government can either rescind the regulation as

applied to your parcel OR pay you eminent domain value (market value for

the land taken.) Plater argument: Penn Central ad hoc balancing test by

Sandra: In assessing remedies for takings, there must be an assessment of the

balance of public and private interests. 3 points: individual diminution,

investment-backed expectation (1st 2 are essentially the same) and character

of government action which gets at the heart of public/private balance.

(This is interpreting O’Connor’s concurring decision in Palitzollo.)

3. Lucas bombshell: if a law was eventually found to be invalid, not only could

it be rescinded, but the gov’t had to pay huge interim “rental” charges for

restricting use of the property in the past.

4. Lucas has been very narrowly interpreted – only granted damages if there is

complete total wipeout.

6) Exactions

a. Definition: conditions a developer must meet before he will be granted a building permit

by the government. Exaction or extortion?

b. Valid exaction requires 5 point test:

i. Authority: does the city have the right to

ii. PPP: could you deny this permit without the 5 point test?

iii. Rationally related: rough proportionally. Big deal from Dolan: switch burden to

government to show rough proportionality. Rational nexus between regulation and

the exaction. Ensures it is not arbitrary. Schools, roads, sewer cool, planetarium

not so much. Presumption is for the government.

iv. Private Burden: exaction or extortion. Very close to rationally related? Is this just

covering the additional burden coming from the subdivision, or does it go beyond to

bestowing a benefit

v. Due Process: notice, hearing, Mathews v. Eldridge.

c. Nolan : beachfront property California Coastal Commission. Nolan fails on Rationally

related b/c without walking the land gov’t could not prove that extension of the house

would block public’s knowledge of their easement. Discusses nexus.

d. Dolan : Rough proportionality. Remember – switches the burden to the government to

show rough proportionality. Rough proportionality limited to exactions.

e. Ask if severability applies for exaction: whether or not exaction can be severed from

permit. Yes if = severable, can cut exaction. No unless = not severable, whole permit dies.

7) Zoning

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a. Defintion: public law that controls the use and development of private land.

b. To have zoning you need both an ordinance and a plan

i. SSCPA: gives the state the ability to create a plan.

ii. SSEZA: gives the state the ability to create a zoning board.

iii. Plan then gets approved by the zoning board it creates the ordinances that are

authority/law regulating the zoning restrictions. Zoning board is an administrative

body with adjudicated

c. 5 Questions for Zoning:

i. Authority: SSCPA and SSEZA delegate power. Must ensure that the person doing

the zoning ordinance has the power to create the zoning ordinance.

ii. Proper Public Purpose: by Euclid, zoning has a PPP. However be on the lookout

for poison purposes within zoning (i.e. Newton historic zone).

iii. Rational Related: zoning ordinances are rationally related because there is a plan..

iv. Undue Burden: you could possibly make an argument if there is evidence and the

court wants to hear it. Notes from class: Euclid: the court finds that they don’t have

enough evidence to weigh the diminution in value to Ambler Realty. Plater: do you

smell the fudge?

v. Due Process: Mathews v. Eldridge

d. Euclidean Zoning

i. Applies to the whole community.

ii. Zone ordinance is keyed to a zone map created by the City government (in Euclid,

the city legislature.)

iii. Don’t attack the ordinance, attack its relationship to the plan. Spot zoning: an

ordinance that goes against the map.

iv. City got its authority from the Standard State Zoning Enabling Act and the Standard

State Comprehensive Planning Act.

v. Euclid zoning was divided by height (H-1, H-2, H-3) and area (A-1 to A-4) and use

(U-1 to U-6). Zoning is cumulative.

vi. Exceptions:

1. Variance: Remedy is amendment: change the ordinance, change the map.

Must show special hardship – unique to 1 lot, that it is not a self-created

hardship, and the variance would not go against the overall purpose of the

zoning ordinance. Can be manipulated – does not require notice to neighbors

or public hearing. Higher risk of corruption.

2. Special Exception: Possibility of special exception is pre-built in to the

zoning ordinince (you can get an exception, if…). This is a use on review.

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Must ask from the zoning board, give your neighbors notice, go to a hearing.

Less risk of corruption.

3. PENCU: hope is that PENCU will die on its own. PENCU is political, not

constitutional.

4. Amoritization: allows use to continue for a certain amount of time before

enforcing the change. Planned death of the PENCU. Constitutionality is

case-by-case, qualitative not quantitative. Must be a reasonable timeframe.

e. Non-Euclidean Zoning

i. PUD: an overlay or a section within Euclidean zoning that allows mixed-use

development. Basic analogy: like a flex covenant for zoning.

ii. Can a PUD override a covenant? If police power contradicts a covenant, then the

police power overrides covenant.

f. Mt. Laurel Decision

i. Regional assessment. A city can’t zone out undesirables via no low-income

housing if there is a regional need for low income housing. Basically a town can’t

say it’s your problem neighbors.

OVERARCHING PLATER TIP: Death, divorce, partition, trusts, mortgages, public law,

and covenants (possibly) and easements by estoppel, alimony/palimony, estoppel by deed,

sound in equity (so there is a fairness argument). Plater Tip: Always ask for damages to get

before a jury and tell your story. Sympathetic client before a jury will get you far.

Typos on the exam: 237 205 on the exam.

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