Property Outline

INTRO TO PROPERTY1. IN GENERAL

a. Property Law: Relationship b/t people and their property (not the property itself)b. Don’t consider property rights in a vacuum (abstract justice vs. practicality/reality)c. Property law favors development and use of land (disputed by ecological view)d. Property rights are a bundle of sticks

i. Examples1. Use, occupy, develop, exclude, deuse (pass to another w/ death),

sell/transfer, destroy2. Fee Simple Absolute: broadest set of traditional rights

ii. Exceptions1. Property law also includes responsibilities in addition to rights2. Some sticks are more important than others3. Rights don’t always go together, but are sometimes difficult to separate

THEORIES OF PROPERTY

Right of first possession1. First possessor owns land

a. Incentivizes discovery2. Endowment effect3. Custom/tradition

Labor theory (Locke)1. Work the land, it becomes endowed with your labor

a. Combines w/utilitarianism to dominate modern thoughts on propertyb. Incentivizes people to labor/developc. Doesn't expire - labor once and it's yours; incentivizes laziness in future

generations d. Complications - multiple ppl laboring on land; what is labor?e. Doesn't protect natural resources

Utilitarianism1. Most efficient use of property is preferred

a. Increase overall productivity/social utilityb. Having land incentivizes participation in politicsc. Class warfare, segregation

PROPERTY OTHER THAN LAND

Fish and Wildlife

1. Pierson v. Post, Supreme Court of New York, 1805a. Facts – Post was hunting a fox with his dogs, Pierson in sight of Post killed the fox and

took it.b. Holding – Court reversed trial court – Corporeal possession is necessary, mere

pursuit is not enough. However uncourteous or unkind the conduct of Pierson towards Post, in this instance, yet his act was productive of no injury or damage for which a legal remedy can be applied.

c. Dissent – Reasonable prospect of taking is enough; first pursuit rather than first possession.

d. First possession theory of propertye. Rationale is not fairness, but certainty

2. Ghen v. Rich -- US District Court, DMass, 1881a. Facts – Libellant shot a whale that later washed up on the shore. Ellis found it and

instead of notifying Libellant sold it to Respondant. This is a libel to recover the value of the whale.

b. Holding - Property of the whale to the libellant. If the fisherman does all that it is possible to do to make the animal his own, that would seem to be sufficient.

c. Lecture Context - Three reasons to follow custom:i. Custom sustained when the industry will collapse if the rule is not in operation

(covers the entire business)ii. very limited application

iii. unlikely to disturb understanding of mankind (just seems wrong)

Tragedy of the Commons3. Individual rationality leads to collective disaster

a. Individual cost/benefit analysis doesn't maximize overall utilityb. Everyone acting for their own gain will consume the common resources to their end

4. Property-centric theorya. Property needs protection that property rights afford, otherwise it might be destroyed

5. How to mitigate tragedy of the commonsa. Rationing - Can tax over certain threshold amt of useb. Private property rights - Incentives to moderate for long termc. Forces ppl to internalize costs

6. Educate ppl - raise awareness7. Spectrum (wireless licenses) - Regulation plus privatization8. Regulation costly/difficult to administer9. Community norms - Can give property rights and allow communities to regulate10. Lobster gangs - If you go over, there's retaliation11. Sometimes incentives to expose over-users12. Net positive isn't always money

a. Ability to see bison in Yosemite, etc13. Erickson v. Queen Ranch – California Court of Appeals, 1971

a. Facts – Plaintiffs own a ranch taking water from the creek by way of 2 ½ mile diversion pipe. Major part of water 5/6 is lost to evaporation, and absorption in desert sand. California Constitution declares state’s policy to achieve maximum beneficial use of water and prevention of waste.

b. Holding, Procedural Posture – Plaintiffs seek to quiet title to the water of Morris Creek. Trial Court found for Plaintiff. Judgment reversed. Defendants may have wasted water but must not diminish original flow arriving at Plaintiffs land. Plaintiffs are under no legal compulsion to install system to save water. If Defendants want the water they must install pipe.

Intellectual Property1. Art I Sec. 8 clause 8 (patent and copyright)

i. Patents1. Four Requirements

a. Subject matterb. Noveltyc. Usefulnessd. Non-obviousness

2. Guarantees rights 20 years from date of application before released to public domain

ii. Copyrights (literary and artistic works)1. Only protects the actual express (medium), does NOT protect the ideas

themselves2. Easier to get than patents, but have to be registered before you can sue3. Benefits

a. Individuals: Life of author + 70 yearsb. Institutions: 95 years from date of publication

2. International News Service v. Associated Pressa. Brandeis – judiciary is ill-equipped to make these kinds of broad policy decisions b. Advantages of Courts – legislature is prone to politics. Courts are more likely to respect

the constitution. Courts can spend a lot of time to delve into the issues. Courts have a good idea of how things work rather than how it looks on paper. More institutional memory. Legislatures are often run by special interests.

Human Cells1. Moore v. UC

a. Consent and Conversion claimb. Find for defendant – no ownership in cells after removal from bodyc. This is what is best for science – policy issue, utilitarian reasond. Balancing test p. 301e. Concurring – Arabian – concerned about protecting human body, but unwilling to make it

part of tort law.

RIGHTS AND RESPONSIBILITIES OF LAND OWNERS

Trespass and Coase1. The Theorem

a. Assuming zero transaction costs and rational decisionmakers, the parties will always end up doing what is economically efficient

2. Notesa. Look at harm and externalities on both sidesb. Initial distribution doesn't matterc. Law doesn't matterd. Socially efficient thing will always occur

3. Coase and the Real Worlda. Transaction costs/impedimentsb. Cost of negotiating

4. Collective action – Usually not just two parties involveda. difficult to organize and create a group movement to enact/counteract similar goal

5. Imperfect information - you don't know how the other side values their assets6. Jacques v. Steenburg Homes

a. Def asked permission to cross property and was refused - crossed anywaysb. Deter trespassc. Punitive dmgs for intentional trespass – Protect right to excluded. This is not the norm but some courts will award if wantone. Intentional trespass is being increasingly criminalized

7. Maguire v. Yanke

a. Fence out v. fence in for cattleb. Ppl assumed local norms reflected law but this wasn't the casec. Court said ppl could create a herd district if wanted to change law to reflect normsd. Takeawaye. Efficiency v. fairnessf. Local norms v. law

Encroachments8. Peters v. Archambault

a. Def's predecessor built a house encroaching on the Pl's landb. Court ordered to remove encroachmentc. Difficult to figure out state of mind of encroacher - incentive: outlaw all encroachmentsd. Considerations

i. Windfall for Pl - got what they paid for before discovered encroachment9. Remedies Arguments

a. For Injunction (property)i. Protects subjective value

ii. Appraisal (dmgs) is inexact - market fluctuationiii. Right to injunction gives Peters a huge bargaining stick - extortion?

b. For damages (liabilities) Majorityi. Protects objective value (hopefully)

ii. Neither party committed the encroachmentiii. Dmgs give more flexibilityiv. Consider guilt, consider actual offense, avoid windfall, allow negotiationv. Don't want to create private eminent domain

vi. Hard to calculate - costly to calculate10. Somerville v. Jacobs

a. Pl's mistakenly constructed a bldg on Def's landb. After construction, Def's learned the bldg was on their property and claimed ownership

through the theory of annexationc. Both parties were innocent. Finding for the Def's would unjustly enrich them.d. Keep land and pay for bldg - or sell the land and give up bldge. Builder is in best position to avoid encroachmentf. Injunction is tradition common law ruleg. Many states adopt the liability/dmgs rule by statute

Adverse Possession11. If someone trespasses on your land long enough and well enough, then they get title12. Arguments For

a. Punish lazy owners / property owners who sleep on their rightsb. Quiet title - ease of transferc. Use and development of landd. Endowment Effecte. Avoid difficulty of resolving stale claims to landf. May ease buying and sellingg. Statute of Limitations concernsh. Reflect reliance interest

13. Arguments Against14. Ray v. Beacon Hudson Mountain Corporation

a. Came every year during the summer for vacationb. Courts granted property to the Rays under AP

c. "Continuous use" depends on nature of the property15. East 13th Street Homesteader's Coalition – No adverse possession granted

a. No tacking, there must be privity of contractb. Not politically feasible to give land to squattersc. If they would have kept tight records of the inhabitants the whole time, then the coalition

likely would have won 16. Quarles

a. It is in their name, over such a long time. b. Elements of Adverse possession

i. Actual possession - Must physically take ownership of the land in the same way the owner would

ii. Exclusive – what typically would an owner use it for? Let others use it?iii. Open and notorious (putting you on notice) visible and obviousiv. Adverse/hostile/under claim of right (color of title)v. Continuous – like a normal owner would use it

c. By clear and convincing evidence

Nuisance1. McCarty

a. Coal plant getting soot on nearby houseb. Test for reasonablenessc. Gravity of harm v. utility of actor's conduct

i. Gravity of the harm outweigh the utility of the actors conduct?d. This test works better for injunction, not as well for damages – with damages, then the

nuisance causer can continue to be a nuisance, just has to pay the costse. This test is all about efficiencyf. Why should unlucky homeowners have to pay for the nuisance when we can pass it to

consumersg. Might be more appropriate at the damages stageh. Courts might not be the best place for this kind of balancingi. Serious harm must pay damages unless it destroys you

2. Epstein – only if it is a physical invasiona. Bright line rule, have gone towards the trespass doctrine

3. Ellickson – standard of neighborliness, what would your neighbors do?a. What is customary? The law should mimic what the people are already doingb. Most courts do find loud noises to be a nuisance

4. Restatementa. Gravity of harm outweighs the utility of conductb. In determining the gravity of the harm from an intentional invasion of another’s interest

in the use and enjoyment of the land, the following factors are important:i. The extent of the harm involved

ii. The character of the harm involvediii. The social value that the law attaches to the type of use or enjoyment invadediv. The suitability of the particular use or enjoyment invaded to the character of the

locality and v. The burden on the person harmed of avoiding the harm

c. In determining the utility of conduct that causes an intentional invasion of another’s interest in the use and enjoyment of land the following factors are important:

i. The social value that the law attaches to the primary purpose of the conductii. The suitability of the conduct to the character of the locality and

iii. The impracticability of preventing or avoiding the invasion

5. Prah v. Marettia. Facts - neighbor's newly built house would block solar panel system's sunlightb. Blocking a neighbor's access to sunlight for solar panels is a nuisance

6. Legislature v. courtsa. Advantages of legislature

i. Legislature is better at collecting information on societal preferencesii. Legislature is better at societal planning

b. Disadvantages of legislaturei. Some bills are politically un-passable

ii. May fail to act on a problem unless it becomes politically feasibleiii. Political pressures

c. Advantages of courtsi. Sometimes it may be better for courts to do something if it is impossible

ii. for the legislature to get it doneiii. Courts aren't "lobbyable"

Nuisance Remedies1. Boomer v. Atlantic Cement Co., Inc. (private nuisance)

a. Defendant owns and operates large cementb. Neighboring land owner injured by dirt, smoke, vibrationc. Dmg to Pl's properties is relatively small compared to Def $185K compared to $45MM

and 300 jobsd. 3 options for damages

i. Permanent damages – a number of disadvantages. Can’t come back for more. Might not accurately represent real damages. Licensing a continued wrong. Eliminate incentive for company to improve and stop the wrongdoing

ii. Temporary damages – Can keep coming back. Disadvantages – requires more and more actions. Costly administratively

iii. Injunction – incentive to negotiate. Disadvantage – economically inefficient, bad feelings, no bargaining power for injunctee. The highest transaction cost situation. Not normal for private nuisance

2. Spur Industries, Inc. v. Del E. Webb Development Co. (public nuisance – injunction assumed)a. Del Webb expanded development out until it got near stinky feed lotb. Balancing the public health and safety v. public interest. Both parties are innocent and

both parties have legitimate interest. c. Coming to the nuisance only applies in private nuisanced. Doesn't apply in public nuisance (here)e. Wouldn't this allow you to condemn all the land around you?f. Yes - Thus, not a complete defenseg. Special/diff't injury was not being able to sell the land (for Del Webb) Court doesn't have

to worry about flooding courts by allowing him to bring the suith. Is this a windfall for DW? Yes - But would be even more so if public had to compensate

through taxesi. Didn't DW create the nuisance? Coase says yes

LOCAL LAND USE CONTROL

State Power and ZoningVillage of Euclid v. Ambler Realty Co.

1. This is the landmark case in zoning lawa. This type of zoning is now called "Euclidian zoning"

2. Higher use to lower use a. High = single familyb. Low = commercial/industrialc. When something is zoned lower, it can do anything above it

3. State Zoning Enabling Act ("SZEA")a. Act says zoning needs Planning

i. All zoning must happen according to a comprehensive plan ii. Must have time for public comment

iii. Zoning must be uniform for each class or type of building4. Holding

a. Zoning ordinance constitutional under state police poweri. Req's planning, process, and comprehensibility (Udell)

ii. Must be product of aforethoughtiii. Don't want it to be arbitrary

5. Rarely win zoning on its face, much more likely to win as applied

Vested Rights and Flexibility1. Vested rights - rights that cannot be taken away2. Western Land Equities v. City of Logan

a. Holding - An applicant is entitled to building permit if application meets zoning laws in existence at the time of the application (minority rule)

b. No retroactively applied zoning changesc. Reasoning - Two lines of analysis

i. Zoning estoppel – zoning changes midway throughii. Concerned with conduct and interest of property owner

1. Was there substantial reliance?2. Economic hardship3. Amount of investment matters

iii. Test to determine substantial reliance (pg 991) 1. Set Quantum test (Majority)

a. Owner is entitled to relief if he has changed his position beyond a certain point

2. Proportionate testa. Percentage of money spent previous to the permit

3. Balancing testa. Interests in developing property and reasonableness of the

proposed use v. public interest, safety3. Vested rights

a. People are entitled to rely on the law i. Zoning shouldn’t change in the middle of someone's project

b. Minorityi. Date of application fixes applicable zoning laws

ii. Rights vest at time of application c. Majority

i. No rights vestedii. Zoning can change any time after permit phase

iii. But you can still use zoning estoppeld. No vested rights induces developers to rush to get many building permitse. Also tempts builders to rush to build to qualify for estoppel

4. Flexibility in Zoninga. North Shore Steak House

b. Facts i. Asking for special exception permit

ii. Board rejected application for variancec. Holding

i. Special exception should've been granted (but rejection of variance was correct)d. Reasoning

i. Difference between variance and special exceptionii. A special exception is a much lower bar than a variance

iii. Hardship Variance - An authority to a property owner to use property in a manner forbidden by the ordinance

1. Need to show special hardship - almost that you can't use property w/out it

iv. Special Exception (Conditional Use Permit)1. If the property owner meets the condition specified in the ordinance

(zoning guidelines), then the city must grant the exception2. Allows the property owner to put his property to a use expressly

permitted by the ordinanceREGULATORY TAKINGS

Gov’t Expropriation – Public Use1. Eminent Domain

a. Private property not taken for public use w/out just compensationb. 5th amendment - no taking w/out due process, 14th, state constitutions

2. Kelo v. City of New Londona. Issue

i. Whether economic development equals public useii. Public use takings - Historically permissible

iii. Not literal public use – but does it serve a public purpose?b. Rationale

i. Long term plan implemented by city/constituentsii. Traditional function of gov't to foster development

iii. Court refuses to develop bright line rule - not going to second guess legislature c. Takeaway

i. You can take and give to another private party for economic developmentii. This case has made it very difficult to dispute takings

Gov’t Expropriation – Just Compensation3. United States v. 564.54 Acres of Land

a. Issue:i. Does the Just Compensation clause of 5th amend. require payment of

replacement cost rather than fair market value in a taking? ii. Fair market value - "what a willing buyer would pay in cash to a willing seller" at

the time of the takingiii. doesn't include special value of property to owneriv. Policy balance: public's need and the claimant's loss

b. Holdingi. Test for Just Compensation: Fair market rule is the standard that will apply most

of the time.ii. Exceptions

1. Grossly unjust2. Property very infrequently traded

3. Gov't has a duty to replacea. Award costs of redevelopment

Penn Central Balancing Test1. When you have a taking it is Penn Central balancing, except two per se situations (physical

invasion, deprive of economically beneficial use)2. Penn Central

a. What is a taking? Ad hoc factual inquiry1. Economic impact

a. Investment backed expectationsb. Did Penn Central specifically invest in reliance on the air rights?

2. Nature of the takinga. Physical invasion (taking an actual chunk of land)b. Interference from some program for the public good?

3. What is taken is actual property, not an expectation (not investment backed)4. How severe a taking (or the harm)

a. Looking at mostly money (how much is this costing you)5. This is a lot like nuisance

Per Se Takings1. Loretto v. Teleprompter Manhattan CATV Corp.

a. Facts - Apt building owner - cable company wants to install cable line on her roofb. Issue - Does a minor but permanent physical occupation of an owner's property

authorized by government constitute a taking for which just compensation is due?c. Holding - Any permanent occupation is a taking regardless of the public benefitd. Rationale - Right to exclude is very important

i. This invasion chops through bundle of rights (possess, control, value)2. Lucas v. South Carolina Coastal Council

a. Two exceptions to the normal "balancing test" of takingsi. Physical invasion

ii. Any regulation which prohibits all economically feasible use 1. This is a new brightline rule that they are creating2. But they say that it is the same thing the court has been doing anyways

iii. Holding - The court makes a new per-se takings rule1. Any time a state deprives an owner of all economically valuable use, it

constitutes a taking 2. Like nuisance law - state has to find something is a nuisance in order to

do a total taking

Exactions1. Exactions - gov't imposes conditions on development rights – Courts don’t like this

a. You may develop if you do _____2. Nolan

a. Facts - California couple wants to build a house, but gov't conditions the granting of the permit on the couple granting an easement to the city for public beach access

b. Reasoning i. Gov't argument - If they could deny the permit for a legitimate state interest (like

public access to beach), then they could also condition itii. But the condition would have to further the ends advanced as a justification for

the prohibition1. Ex. Height restrictions, width restrictions, fencing, etc. 2. This condition is a power grab ~ extortion

iii. Test - "Reasonably related"3. Dolan v. City of Tigard

a. Roughly Proportional i. Essential nexus between the state permit and the condition (Nolan)

ii. decide the required degree of connectionb. Reasonable relation test

i. Rough proportionality - not precise mathematical calculation but must be fact-based inquiry

LAND SALES

Duty to DiscloseDisclose information that has an effect on the value of the property

1. Strawn v. Canusoa. Holding limited to professional sellers of residential housingb. Caveat emptor no longer applies

i. Due to unequal bargaining power between professional seller and home buyersii. Professional sellers of residential housing and their brokers enjoy markedly

superior access to informationc. Does not apply to transient social conditions

i. Root in the land the duty to disclose off-site conditions that are material to transaction

d. Buyer typically has no duty to discloseWarranty of Fitness

2. Wawak v. Stewarta. Air ducts constructed incorrectlyb. Builders implied warranty of inhabitability, sound workmanship, or proper constructionc. Similar reasoning as above (difference in bargaining power and access to information)

3. Nichols v. R.R Beaufort & Associates, Inc.a. Holds that “the privity requirement should be abandoned in suits by subsequent

purchasers [of homes] against a builder or contractor for breach of an implied warranty of good workmanship for latent defects”

b. Limits the holding:i. to latent defects existing at the time of the home’s original sale that were not

known to or were not reasonably discoverable by the buyer when he or she purchased the house,

ii. Discover within a reasonable period of time, ten years from the time of the building of the home and three years after discovery to bring suit

iii. subsequent-owner plaintiffs have the burden to show that it was faulty workmanship

c. Contractor defenses: i. defects not attributable to him,

ii. they are the result of age or ordinary wear and tear, and iii. previous owners have made substantial changes.

TITLE ASSURANCE

The Record System1. Common law – first in time first in right

2. O A then O B (notice happens at the time of purchase)a. Race – Whoever records first wins (B records first he wins)b. Notice – Protects subsequent purchaser only if you did not have notice, bona-fide

purchaser (protects good faith purchasers). A could have protected themselves by recording.

i. Key words : Will always say “notice”c. Race-Notice – (majority of states) be a bona-fide purchaser and be the first to record

i. Key words : “in good faith” + “first to duly record”3. Types of Notice

a. Actual Notice – proof that B actually knew that A owned the landb. Inquiry Notice (implied actual notice) – some fact that you knew about or should have

known about that if reasonably inquired into would produce actual notice. (go look at the land)

c. Constructive Notice – recording of the prior transfer in the public title records in such a way that the subsequent purchaser, conducting a reasonable title search would obtain actual knowledge of the transfer (lease provisions)

4. Mister Donut of America, Inc. v. Kempa. Constructive notice – if you know that there is a lease, go look at the lease. Must also talk

to the lessee. This is constructive because there is an actual legal document. Need to be aware of lessee’s rights

5. Gagner v. Kittery Water Districta. Plaintiffs put on inquiry notice but failed to inquire enough, therefore the easement is

validb. Two problems with asking the seller about the easement

i. Represented both the buyer and the sellerii. Asking the person who is most incentivized to lie

iii. Actual notice of facts which, to the mind of a prudent man, indicate notice is proof of notice

iv. Inquiry Notice – ask the person holding the interest if it is valid6. Miller v. Green

a. O Miller Nov. 4, then O Hines Nov. 29b. Possession of land is notice to the world of whatever rights the possessor may have in the

premises. c. If someone has a lease you are under obligation to investigate any right the lessee may

have under the lease (including any right to buy.)i. Any indicator that a lessee has more rights you must talk to the lessee

d. Open, visible, exclusive, and unambiguous. Actual residence is not requiredi. Any possession you are under notice that there are other interests as well

DIVIDING OWNERSHIP ACROSS TIME

Present Interest Example Duration Future Interest in Grantor

Future interest in Third Party

Fee Simple Absolute (FSA)

To A and his heirs

Forever

Fee Tail To A and the heirs of his body

Until A and his line die out

Reversion Remainder

Life Estate To A for life (and then to B)

End of A’s life Reversion Remainder

Fee Simple Determinable (FSD)

To A and his heirs so long as/until/while

As long as the condition is met, then automatically to grantor or third party when condition is breached

Possibility of Reverter

Fee Simple Subject to a Condition Subsequent

To A provided/but if/however if/ provided that

As long as the condition is met/until happening of named event, and reentry of grantor

Right of Entry (or Power of Termination)

Fee Simple Subject to an Executory Limitation

To A and his heirs, but if/ however if/ and then to B

Executory Interest

Leasehold: Term of Years Periodic Tenancy Tenancy at Will Tenancy at Sufferance

Reversion Remainder

Present InterestsA. IN GENERAL

i. All present interests are paired with a future interest. If the future interest is not stated, it is usually retained by the grantor.

ii. Look for form language (specific words) to identify each type of interest.B. FEE SIMPLE

i. Indefeasible1. Fee Simple Absolute (FSA)

a. The most unrestricted type of ownership (infinite duration); gives as many rights over the use and transfer of land as the law allowsi. Potential restrictions: zoning laws, nuisance

b. Words of Limitation : “A to B and his heirs”i. At common law, these exact words had to be used

ii. Today (majority): Presume a fee simple (when in doubt)1. Courts will often try to find a fee simple (Williamson:

despite very clear intent to give the farm as a life estate, the court gave a fee simple)

a. Courts don’t want to be controlled by “dead hands”b. Simple to determinec. Promotes efficient ownership: Owner can word the

land or sell it to someone who can use it better (life estates aren’t marketable)

2. May contradict intent of the grantorc. Future Interest : Noned. Inheritance

i. Will: Fee simple is passed according to will and grantor’s intent, except…

1. Look for rules favoring transfer of fee simple2. Subject to rules against perpetuity and alienation

ii. Intestate (no will): Statute of descent1. If a spouse, but no descendants:

a. Entire estate goes to spouse2. If both a spouse and descendants:

a. Half to spouseb. Descendants share in other half per stirpes (divided

up equally)c. If child has died, then that child’s share goes to his

children (per stirpes)3. If no spouse or descendant:

a. ParentsBrothers or sisters (or per stirpes to their descendants)Grandparents/great-grandparentsNearest kindred (cousins far removed)

b. If no kindred: escheats (passes to state)ii. Defeasible

1. In Generala. Ways to restrict the future use of your propertyb. Restrictions may last forever (subject to adv. possession and statute of

limitations)2. Fee Simple Determinable (FSD)

a. Definition : Gives a fee simple which ends when a stated event occurs or fails to occuri. The limitation stays with the property even when it is transferred

ii. To get land back you still have to go to court. Once the terms have been violated, B’s estate automatically ends, and adverse possession clock starts ticking (becomes a FSA).

b. Words of Limitation : “A to B so long as / while / until / during…”i. Look for words indicating duration

c. Future Interest : Possibility of reverter (held by grantor)3. Fee Simple Subject to Condition Subsequent (FSSCS)

a. Definition : When a particular event occurs, the grantor has the right of entry to take back the property, but nothing happens until he exercises that right.i. No clock of adverse possession (however, most courts limit by

statute of limitations, or by some other equitable solution like laches).

b. Words of Limitation : “A to B, but if / provided / however, if…”i. Look for words indicating conditions

ii. Wording might indicate right of entry, but it doesn’t have toc. Future Interest : Right of entry (always held by grantor)

4. Fee Simple Subject to Executory Limitation (FSSEL)a. Definition : When a particular event occurs, the estate passes to the third

person (other than the grantor)i. Similar to the FSD, but it goes to third party and can include

conditional languageii. B can sell or transfer his interest, but that does not change the

condition (condition stays with the property)

iii. As with the other defeasible fees, look for adverse possession or statute of limitation problems

b. Words of Limitation : “A to B and his heirs, but if B…, then to C and his heirs”i. Includes conditional or durational language

c. Future Interest : Executory interest (always held by third party)C. FEE TAIL (FT)

i. Not the law anymoreD. LIFE ESTATE (LE)

i. Definition1. Gives transferee the estate for the life time of a person (usually the transferee)2. May be defeasible (“A to B for life so long as…”)3. Due to their lack of marketability (who wants to buy something that can be

taken away when someone dies), courts will construct wills against life estates and for fee simples

ii. Words of Limitation1. “A to B for life (or during his life)” (reversion interest in fee simple to grantor)2. “A to B for life, then to C” (remainder interest in fee simple to third party)

iii. Future Interest1. Grantor : Reversion2. Third Party : Remainder

iv. Inter vivos transfers: “B to X”1. X must be a willing buyer (can’t be tricked into thinking he’s buying a fee

simple)2. If X dies before B (the measuring person) dies, then a life estate goes to X’s

heirs then goes back to the person with the future interest when B dies.E. LEASEHOLDS

i. Four Types 1. Term of years tenancy: Automatically expires after certain period2. Periodic tenancy: Continual renewal until either provides notice of termination3. Tenancy at will: Either can terminate at will4. Tenancy at sufferance: Wrongful continuation of possession

ii. Always followed by future interest : reversion (original lessor) or remainder (third party)

Future InterestsA. RETAINED BY GRANTORS (Does not need to be stated)

i. Possibility of Reverter1. Retained by grantor when he gives a FSD

ii. Right of Entry1. Retained by grantor when he gives FSSCS2. Gives grantor ability to take back the land when the specified condition is

brokeniii. Reversion Interest

1. Retained by grantor when he gives something less than a fee simple (life estate)2. Different from a possibility of reverter because the reversion will occur

B. RETAINED BY THIRD PARTIES (Remainders)i. Contingent Remainder

1. “A to B for life, then to C’s heirs” (heirs are only determinable after death)ii. Alternative Contingent Remainders

1. Where two parties’ future interests are mutually exclusive (particularly likely

when condition involves survivorship)2. “A to B for life, then to C if she survives B, otherwise to D”

iii. Executory Interest 1. Some uncertain event must occur before the interest is passed (however, if the

event is certain to occur, then it would be a vested indefeasible remainder; if the event will occur naturally, then it is a contingent remainder)

2. “A to B so long as the property is used for farming, then to C”a. C: executory interestb. B: vested interest subject to complete defeasance

iv. Vested Remainder1. all that has to happen is someone has to die (natural termination of the

preceding estate)2. has to be to a specific person right now (immediately ascertainable. heirs are

never ascertainable in the present, only ascertainable upon death)3. Early vs. Late Vesting

a. At common law, courts favored early vesting of estates (promotes marketability, ownership); however, now courts have move away from the view (tax deferral)

b. Browning : Suit over the timing of vesting; intent was to keep away from son-in-lawi. Shows that vesting matters (can determine who gets the interest)

ii. When there is ambiguity in when an interest vests, look to the intent of the grantor

4. Typesa. Indefeasible

i. Certain to become possessory at a future timeii. Although an interest requiring someone’s death seem conditional,

the remainder is sure to become possessoryiii. Could include executory interests (“to B for 10 years, then to C”)

b. Subject to Open (have a vested interest right now, but it is subject to change)i. Subject to Complete Defeasement

1. Interest is vested, but can be taken away entirely by an event

2. Person with interest under a defeasible fee could be stripped of the interest due to the meeting of a condition

3. “A to B for life, then to his heirs so long as used for farming”

a. B: vested remainder subject to complete defeasanceb. A: possibility of reverter

ii. Subject to Partial Divestment 1. The person is certain to have some possessory interest

someday; however, there is a chance that others will share this interest

2. Usually occurs where an interest is given to a class of people that can grow

3. “A to B for life, then to C’s children” (different from “…to C’s heirs” which is a conditional remainder because heirs are only determined at death)

a. If C has a living child, their interest could be shared by the birth of subsequent children (if no children,

then a contingent remainder).

Restraints on Alienation and Avoiding WasteType of restraint Fee Simple Life Estate LeaseholdDisabling Invalid Prohibited OkayForfeiture Invalid Okay OkayPromissory Possibly okay if partial

and reasonableOkay Okay

Alienation1. Concept – CL frowns on attempts by owners to restrain ability of future owners to sell, or

otherwise alienate their propertya. Alsup v. Montoyab. No dead hand controlling after 50 years

2. Scope of the restrainta. Total – prohibits all transfersb. Partial – limits transfers for a specific period of time

3. Methoda. Disabling – withhold the power of alienationb. Forfeiture – the grantee will lose her interest if she attempts to transfer the propertyc. Promissory – expose grantee to contract remedies in the event of an attempted transfer

4. Nature of interest restraineda. Life Estateb. Fee Simplec. Leasehold

5. Only fee simple restraint that's OK is partial and reasonable promissory6. Only life estate restraint that's not OK disabling

Waste1. Waste – Cause of action brought by an owner of a vested future interest against a life tenant or

lessee for damaging the value of that property. i. Executory or contingent interest cannot sue for waste since his future interest is

not vested (however, perhaps an exception for contingent interests with high probability of vesting)

ii. Duty of Current Tenants1. Fiduciary duty to the remainder interest holders to preserve the property

and to return the property at the end of the term unimpaired by negligence (“leave it how you found it”)

2. However, normal wear and tear is acceptable (depreciation, etc.) according to local custom (see affirmative waste below)

iii. Timing of Suit1. Remainder interests do not have to wait until life tenancy is over to sue2. However, they must sue within certain time periods

a. If permissive waste, then statute of limitations starts at end of life tenancy

b. Laches (MOORE : Daughter sued after mother died for not taking care of the property)

i. Cause of action can be lost if the remainder interest waits too long to sue

ii. There must have been some damage to the life tenant due to the delay

iii. Case-by-case determination2. Three types of waste

a. Affirmative – you do something to the land, sin of commission (taking the resources from the land, destroying the buildings) look to custom to determine

b. Permissive – sin of omission. Not doing something you should be to keep the property in good repair (as good repair as they were when the life tenancy began, subject to reasonable wear and tear).

c. Ameliorative – prevent life tenant from acts that would increase the market value of the land. What would a prudent owner do? What the remaindermen would want to be done?

3. Remedies1. Vested remaindermen can get compensation for waste2. Contingent remaindermen can only get an injunction

LANDLORD TENANT LAW

Leaseholds Estates and Tenant’s Rights and Remedies1. Types of leasehold estates

a. Term of years – fixed duration, at the end of the term tenant’s rights automatically terminate.

b. Periodic tenancy – continuous, renews automatically. Notice requirements under common law

i. When parties don’t specify a fixed lease term (month-to-month)ii. New lease term is automatically renewed, even 1 day after the old lease term

expiresiii. Parties must give notice to terminate

c. Tenancy at will – no fixed duration, terminated at any time by landlord or tenantd. Tenancy at sufferance – someone who stays over the lease

i. Treat the tenant as a trespasser and evict or ii. Hold the tenant to another term (sue for rent if not paid)

2. Tenant rightsa. Right to possession –

i. British rule - if former tenant fails to move out it is the landlord’s responsibility to evict former tenant.

ii. American minority rule – new lessee’s responsibility to kick out former tenant. iii. Destruction of the building – in the past tenant took risk of the building having

burnt down. Not anymore. iv. Building burns down before tenant takes possession

1. Old law: tenant still had to pay rent2. Modern: tenant not liable to pay rent if renting portion of land and the

building is necessary for purpose of the lease (reflects change in importance of the building in leasing rather than the land)

3. The right to quiet enjoymenta. Barash v. Pennsylvania Terminal Real Estate Corp.

i. Owner leased office space for law firm and lessor didn't provide fresh air on nights and weekends against oral agreement, but this condition was not in the lease.

ii. Holding – No constructive eviction b/c he didn't abandon 1. Not partial actual b/c had access to entire property (even though it was

accessible only part of the time)iii. Constructive Eviction – landlord’s wrongful acts substantially and materially

deprive the tenant of the beneficial use and enjoyment of the premises. Must be entitled to the condition and tenant must then leave the entire premises.

iv. Actual Eviction – Landlord wrongfully ousts the tenant from physical possession

of the leased premises, physical expulsion, or exclusion. v. Partial Actual Eviction – Landlord deprives tenant from a portion of rented

premises. Has to be something that they are entitled to under the lease, and has to be deprived of physical possession.

b. East Haven Associates, Inc. v. Guriani. Unusable terrace

ii. 17 months too long to constitute actual evictioniii. Not partial actual eviction because they were not physically restrained from

going onto the terraceiv. Partial Constructive Eviction – part of property unusable to tenant based on

landlord’s misdeedsv. Test for substantiality – whether the tenant has been deprived of the full use and

enjoyment of the leased property for a material period of time4. All four kinds of eviction have the same remedy; liability of entire rent is suspended

a. If you are a landlord it is your job to resolve any issuesb. Bright line rule across the board (including commercial properties)

Warranty of Habitability1. 3 reasons to apply warranties into a lease

a. The old rule based on assumptions that no longer existi. No longer buy the land for agrarian purposes

b. Bring leases up to speed with consumer protection, warranties on homesi. Today’s urban housing market also dictates abandonment of old rule

ii. Specialized skill set of urban resident unrelated to maintenance workiii. No longer jack of all trades farmer

c. Specific tenants tenure in an apt is insufficient to justify repairs2. Many cities have adopted housing codes

a. Started w/really egregious conditions being barredb. Structural elements, facilities, occupancy std'sc. But codes are difficult to enforce, not taken seriously by prosecutorsd. Like fitness warranty but for leases

3. Javins v. First National Realty Corp. a. Background – Renting building that violates code b. Issue – Whether tenants have to pay rent c. Holding – When there are housing codes, we will incorporate them into the contractd. Notese. Bargaining power (helps poor ppl)f. Paternalism – housing code = gov’t taking care of people instead of them helping

themselves 4. Three types of self help remedies

a. Rent withholding – remain on the premises and withhold rent until landlord remedies the breach

b. Abatement – tenant may reduce rent by a fraction that corresponds to the premises reduced habitability

c. Repair and deduct5. Retaliatory Evictions – Landlord can’t retaliate in most states (UT is an exception)6. Warranty of habitability usually doesn’t extend to Commercial Leases (TX is an exception)

Landlord’s Rights and RemediesA. WASTE

i. Rule: Tenant must return the premises in “substantially the same condition” as the beginning of the lease. Landlords have a cause of action for damages for waste

ii. Types of Waste1. Affirmative : Substantially impair the value of the property (tearing out walls)2. Ameliorative: Even if the tenant increases the value, they cannot substantially

alter the identity of the property3. Permissive (split): Allow the premises to fall into disrepair

a. Some require tenants to keep the premises in “good repair”b. Others require the landlord to repair

i. Landlords are economically advantaged ii. Leases are increasingly short-term; tenants should not have to

“invest” when they will be leaving soonB. RENT

i. Common law – if you breach your lease you do not forfeit the lease (this remains much of the law in the US today). Almost all leases now have default forfeiture built in and the landlord can evict the tenant.

1. What must a landlord do for it to be forfeiture – they have to stop collecting rent

2. If a landlord accepts rent without informing the tenant of intent to terminate the lease the courts see the landlord as waiving the breach

ii. Rent Control1. Basic components : In order to provide cheaper housing and prevent abuse from

landlords, many cities limit the rent landlords can chargea. Many index to inflation, taxes, or other expensesb. Usually landlords can increase rent once the tenant leaves

2. Proponents a. Landlords have superior bargaining power (not if they only own one unit)b. Housing is viewed as a public utility

i. But housing isn’t like other utilities (not a monopoly situation)3. Opponents

a. If landlords can’t get market price there is less incentive to buildb. Artificially diminishes supply (new tenants end up subsidizing the old

tenants)c. Difficult to sell rent controlled housingd. Suppresses new construction of rental housing

C. REMEDIES (for landlord when tenant breaches lease: fails to pay rent, waste, etc.)i. Forfeiture

1. Common law : Breach by tenant only let the landlord to sue for damages (and possibly an injunction), not to evict and to retake possession.

2. However, common law not used much because:a. (1) People contract out of common law in leases and b. (2) States have passed statutes allowing for eviction

i. Statutes commonly allow eviction for (1) breach, (2) waste, (3) illegal use, (4) subleasing without consent

c. Common law is still used in situations where courts interpret breach narrowly (favoring the tenant) in order to disfavor forfeiture

3. Landlord waives breach by continuing to accept rent after knowledge of the breach

ii. Summary Proceedings1. Allows a quick way for landlords to quickly evict tenants when they breach

a. However, may not be that quick if the tenant drags feet (months or even a year)

2. Goal is to reduce incentive for conflict through self-help by providing an

expeditious way for landlords to get a remedyiii. Self-help (Berg v. Wiley, leased restaurant, changed locks)

1. Two (and a half) Rulesa. Common Law : In order to reclaim possession of leased land through self-

help (other than legal proceedings), the owner must (1) have a legal right to the property and (2) use a peaceable methodi. Peaceable (split rule)

1. Some jurisdictions allow locking of the property (no actual violence)

2. Others have limited the definition of peaceable so much that the right to self-help is practically non-existent (no one can think of what nonviolent self-help would be, if the tenant had been present there might have been violence)

b. Majority : Self-help is usually found to be a breach of the peace and oppressive. Landlord becomes a judge in his own right. Landlord must always resort to the judicial process (except in cases of abandonment or voluntary surrender) - Utah follows this rulei. Policy for discouraging risk of violence (there is a potential for

violence whenever landlord even attempts to take property peaceably)

ii. Many states have provided summary proceedings which are viable methods for quickly obtaining a remedy (use it)

1. May not be sufficient when tenant is seriously injuring the property (and summary proceedings aren’t that fast)

2. Waivers (can tenants waive prohibition on landlords seeking to exercise self-help): split rule; some states allow, some don’t

iv. Statutory Liens/Distress 1. Two additional remedies for landlords to secure payment when it is in doubt

a. Statutory Liens : Landlord attaches specific personal property at the beginning of the lease and the right to execute upon the property occurs when lease is breached

b. Distress : Seize personal property on premises after the breach as security for unpaid rent or damage

c. Must go to police in both instancesv. Damages (in addition to eviction when tenant breaches lease)

1. Three options a. Surrender: Rescind the lease (treat lessee’s breach as surrender) and lease

to someone else at a profit b. Re-let on Tenant’s Account: Recover the balance due on the original lease

minus the amount received by the new renteri. *If the new tenant defaults, the original tenant is still liable for

differencec. Anticipatory Breach: Recover for future breach which equals the

difference between the rent in the lease and the market value (if lower)i. Landlord can get reasonable expenses incurred in finding a new

tenant

SHARED OWNERSHIP

Common Law Concurrent Estates1. Each co-tenant has rights (can occupy) to the entire estate – 3 types of co-tenancy

2. Tenancy in Common (TIC) – a tenant in common enjoys all the rights of a holder of the estate, except that she shares those rights with her co-tenants (if A,B,C own in TIC and B transfers to X, X then has the same rights B had)

a. Words : “A to B and C3. Joint Tenancy (JT) – In a joint tenancy you cannot will your rights to someone else. The other co-

tenants enjoy a right of survivorship. If A and B are JT and B sells to C during his life then it automatically becomes a TIC between A and C. If one person disrupts the JT then the whole thing becomes a TIC. Now a divorce will end a JT

a. Words: All require clear expression of “joint tenancy” in the absence of tenancy in common language. i. “to A and B jointly” is insufficient

ii. Some further require further that “right of survivorship” is statedb. TIC is preferred over JT in courtc. Must have the following for a JT:

i. Unity of Interest – All tenants have equal undivided shares in an identical type of estate

ii. Unity of Title – all tenants must acquire title by the same instrument or by the same joint act of adverse possession.

iii. Unity of Time – all tenants acquire and vest at the same timeiv. Unity of possession – all tenants have to be entitle to possess the entire estate

d. If you fail under one of these it becomes a TICe. A lease does not sever where the lessor does not clearly and unambiguously (express intent)

intend to sever (Tenhet v. Boswell)i. Once you die your interest in the land dies with you. In a JT a lease is only valid while

the lessor is alive. Prudent lessee would conduct a title search prior to leasingf. Riddle v. Harmon eliminated the need for a straw man purchase to destroy a JT, tenant may

transfer to themselvesg. Utah does not require a straw man

4. Tenancy by the Entirety – right of survivorship, only for married couples, cannot sell without the permission of the other person (which means liens on the property cannot be enforced). Can sell together, but cannot unilaterally sell or otherwise change the interest in the property

Disagreements Among Cotenants1. Leases: Lessee steps into the shoes of the leasing co-tenant, and is a tenant in common as long as

the lease lasts (Carr v. Deking)a. Options for non-leasing tenant

i. Take on the leaseii. Ask for partition

iii. Possess the land1. 3rd option would make lessee’s life miserable

b. If forced to consult with co-tenants this would discourage development and use of land.c. The lease survives a death and goes to the estate and the estate is bound by the lease

2. Timber - Common law rule – a life tenant may cut growing timber for estovers, making necessary repairs, for fuel, or to pay taxes, but cannot “lessen the value of the inheritance.”

a. Threatt v. Rushing - Holding – cotenant may not sever timber from the land without consent of the other cotenants (even if it is just a proportional share)i. RI – timber is treated as a crop so not subject to waste

ii. WA – timber is part of the land and is subject to waste3. Accounting to Cotenants – Rent - Majority rule – a cotenant is not liable to pay rent, or to

account to other cotenants respecting the reasonable value of the occupancy, absent an ouster or

agreement to pay. (Martin v. Martin)a. Cotenants are entitled to their pro-rata share of rent received from third parties (others have

to account for the rent they receive)4. Ouster – wrongful dispossession or exclusion by one tenant of his cotenants from the common

property of which they are entitled to possession, must amount to exclusive possession of the entire jointly held property

a. One tenants unambiguous conduct manifesting an intent to exclude another cotenant from gaining or sharing possession of jointly owned property

b. Once an ouster occurs rental obligation accrues, adverse possession clock starts. c. George did oust other tenants by his action for ownership, he attempted to exclude others

(Estate of Hughes)

Partition1. Schnell v. Schnell - Law favors partition where it can be made without great prejudice to all the

owners (courts often ignore it)a. Prejudice – the value of the share of each in case of partition would be materially less than

his share of the money equivalent that could probably be obtained from the wholeb. "Owelty": Makes a partition equitable, party whose parcel is more valuable may have to pay

the other party2. Factors to consider:

a. Serious $ injuryb. Situation of parties and their $ abilitiesc. Location and character of the propertiesd. Size and utility of sharese. Sentimental reasons (subordinate to $ interests)

3. Problems of partition: Leads to over fragmentation of land

EASEMENTS, COVENANTS AND EQUITABLE SERVITUDES

Introduction 1. Affirmative easement – use another’s land in a way that, absent the easement, would constitute a

trespass or huisance and that either is irrevocable or is revocable only on the occurrence of a specific condition

a. Actually a grant in the land2. Negative easement – Prohibits otherwise lawful use of land (ex. Preserve a view)3. License – right to go onto someone’s property that is revocable at will by the property owner (not

in writing) (tickets to a movie, sports event, allow to come onto the land to fish)4. Affirmative covenant – a promise that landowner will do something that he is otherwise not

obligated to do5. Negative covenant – will not do something normally free to do

a. Covenants are legal promises (obligated to do or not do something)b. Negative easements and covenants are pretty much the same in the law todayc. Enforced by damagesd. Historically – for light and air, subjacent and lateral support, and unimpeded flow of an

artificial streame. Now broadened – view, conservation, historic preservation and more

6. Restatement (Third) of Property - proposes getting rid of equitable servitudes, and combining negative easements and negative covenants (since very similar)

7. Run with the land – Attached to the land, affects all subsequent landowners, all covenants run

with the land. 8. Equitable servitude – Negative covenants that are enforced by a court’s equity side rather than by

its law sidea. Enforced by an injunction

9. Appurtenant - benefit the land, property, runs with the land10. In Gross - benefit a person (held in a person) does not usually run11. Benefit and Burden – one estate will benefit and one will be burdened12. Servient estate – burdened land13. Dominant estate – benefitted land14. Runs with the land – binding on successors in interest to the servient estate, specific requirement

must be met (different with each kind of estate)

Easements 1. EXPRESS EASEMENTS

a. Requirements: Must be in writing, manifest intention to be easement, signed by grantorb. Deed is the standard method

2. Chevy Chase Land Co. v. United Statesa. “Rails to Trails” Act, Burden Testb. Express Language

i. Minimal factorii. Is there anything in the deed showing the intent of the parties?

c. Common Law (split rules)i. Precedent: What have courts done in the past? (e.g., have railroad easements been

converted to trails?)ii. Doubts are interpreted in favor of the owner of the easement

d. Burden (focus the most on this prong)i. Subjectively (facts of the case), is the new burden unreasonable?

ii. Promotes the normal and best use of land; practicaliii. Judges could frequently differ on reasonability (railroad vs. bike trail discussion) and

gives the court a lot of power3. Marcus Cable Associates v. Krohn

a. Cable lines, Original purpose testb. If a use does not serve the easement’s express purpose, it becomes an unauthorized presence

on the land whether or not it results in any noticeable burden to the servient estate. c. This is a minority opinion – most courts are more flexibled. This view could delay innovation – have to renegotiate an easement with every tech advancee. Relocating Easements – Cannot usually do this unless the parties agree to a change or the

easement calls for it4. O’Neill v. Williams

a. Appurtenant or in gross?b. Restatement – is the easement more beneficial to the land or to the person? c. Two things to look at

i. Intent1. Language2. Reasonable expectations

ii. Notice1. Current owner of the putative servient estate must have actual, constructive, or

inquiry notice5. Miller v. Lutheran Conference & Camp Association

a. Brothers owned TIC on a lake w/an easement to get to the lake - one'sb. heirs sells his 1/4 interest

c. Purchaser wants to start a camp on the laked. Easement in gross is assignable if the parties to its creation evidence their intention to make

it assignable. e. Assignable – transferablef. Divisibility – giving it to two parties not using it togetherg. Must use the easement in one stock – in order to sell or lease the co-tenants must sell it

together6. Easements by Estoppel

a. Stoner v. Zucker Oral permission was given to construct ditch; spent $8,000; irrevocablei. Reasonable reliance: Owner of the servient estate gives assurances that the property is

subject to an easement1. Requirements

a. Great expense: Expend substantial amount of money or laborb. Reasonable reliance

i. You could argue it is never reasonable to substantially rely on an oral promise

ii. May depend on bargaining power of entities (Nelson AT&T didn’t get irrevocable license; perhaps it wasn’t unfair because the company should have known better)

7. Easement by implication and Necessitya. Williams Island Country Club, Inc. v. San Simeon at the California Club, Ltd.

ii. “When land is owned originally by the same owner, and part of the land is used for the benefit of another part, such use is termed a ‘quasi-easement,’ and it may become an implied easement whe either part is severed from the other”

i. The use of the land for the easement must be apparent or visible, or reasonably discoverable at the time the unity of title was severed

ii. The use must be such that a permanent use was intendediii. The easement must be reasonably necessary for the use and benefit of the dominant

tenement. 8. Dupont v. Whiteside

a. Irrevocable License b. Permission is granted to use property for a particular purpose, or in a certain manner and in

the execution of that use the permittee has expended large sums or incurred heavy obligations for its permanent improvement.i. Must have had permission in the first place

ii. Easement is much more serious and longer term, easements run, irrevocable licenses do not

iii. Easement by prior use – reasonable or some necessity (low bar)iv. Easement by necessity – strict or absolute necessity (high bar)

9. Prescriptive Easementsa. MacDonald Properties, Inc. v. Bel-Air Country Club

i. Like adverse possession; Open, Notorious, Continuous, Adverse (not permissive), Under claim of right, Period of years

ii. For a prescriptive easement the knowledge requirement is much higher (knowledge such that a reasonable property owner would know).

iii. Better and widely held rule – continuous use for a long time without the landowner’s interference

iv. Once a prescriptive easement is established it passes on to subsequent landownersv. Uses evidence of intent as a claim of righti. To show that you’re giving permission put up a sign saying - 'you are passing

w/permission'

b. Lyons v. Baptist School of Christian Trainingi. Public prescriptive easement (woodlands Baptist summer camp)

ii. Open fields and woodlands presumed permissiveiii. Permissive – you’re allowing it, and can stop allowing it.iv. Holding: When we have the public using an easement on your land for recreational

activities it is presumed permissive. c. Contrast with Adverse Possession

i. Possession vs. use : Adverse possession requires occupation of entire parcelii. Open/Notorious : Prescriptive easements require higher burden of open and notorious

useiii. Exclusion : Exclusion is not required for prescriptive easements (many people can be

using it)iv. Continuity : Less regular/continuous use is required for prescriptive easementsv. Scope : Prescriptive easement is more limited

1. Scope (how much can the easement be used): Only the same amount as used before the easement was created

a. Reasonable changes are fine if they don’t impose a greater burden (foreseeable use at the time of creation) on the servient land

Covenants and Servitudes 1. Burden (NI PT)

a. Notice : The burden is not enforceable against subsequent purchasers unless they had notice (not required for the benefit to run)i. Actual, Inquiry

ii. Constructive: Deed only needs to expressly state the existence of the covenant, not the exact terms of the covenant

b. Intent : Presumption against running unless expressly indicated (party seeking to enforce has burden to prove intent to the contrary). Analyze factors:i. Start with the language and look for any implied meaning

ii. Nature of the restriction (would it make sense for it to run with the land?)iii. Situation of the partiesiv. Other circumstances showing “reasonable” intent of running of the burden

c. Privity (sufficient legal relationships)1. Horizontal privity – usually in land sales, privity of estate between the covenantor

and covenantee at the time the covenant was created2. Rule abolished by many courts (including the Restatement) as purposeless and

confusingii. Vertical privity – between promisor and promisee and subsequent owner who obtains

same interest in the land as did the promise. Between the covenanting parties and their successors in interest

1. Runyon – No vertical privity because the land was transferred before the covenant was created (no direct relationship with the original covenanting parties)

d. Touch and Concern : Split Rulei. Traditional Test

1. Rule: The covenant must affect the legal rights of the land at the time the covenant was created

2. Sufficient if the covenant increases (dominant) or decreases (servient) the land value or the enjoyment of the land

ii. Reasonableness Test – Davidson Brothers, Inc. v. D. Katz & Sons, Inc.1. 2 stores, one shut down with non-compete)2. Rule: Is the covenant reasonable now and when it was created?

a. Majority rule3. Reasonableness Factors

a. Intention of parties when the covenant was executedb. Viable purpose?c. Impact on the considerations exchanged when the covenant was originally

executedd. Clear and express restrictions in the covenante. Whether the covenant was in writing, recorded, and if so whether the

subsequent grantee had actual notice of the covenantf. Reasonable - Area, time, durationg. Unreasonable restraint on trade? Monopoly?h. Interferes with public interesti. Changed circumstances?

Terminating Easements, Covenants, and ServitudesA. MERGER

i. Merger doctrine – an easement that benefits the dominant estate and burdens the servient estate is extinguished when fee title to each estate is united under one owner (not necessarily under one title) (not revived when the titles are separated).

1. Mortgage exception –when there is a mortgage on a dominant party and title is merged the bank does not lose the easement. Does not protect future owners

a. Can’t take things away from banksb. We protect banks and only banks

2. If the owner of the dominant estate merely leases the servient estate, most courts will only suspend the nonpossessory interest

B. ABANDONMENT/ADVERSE POSSESSION: Split Rulei. No Abandonment (majority)

1. Rule : Abandonment by the holder of the interest does not alone terminate the rights; adverse possession by the servient estate is also required

a. Looks at the actions of both the dominant and servient estate owners2. Exception : Adverse possession is not required when the owner of the dominate

estate, by his own affirmative actions, obstructs the easement or makes use of it impossible

a. Hatcher : Servient land owner didn’t do much (adverse possession); however, the dominant estate owner allowed a tree to grow, making his use of the easement impossible, and didn’t remove a board across the door

ii. Abandonment (minority)1. Rule : Abandonment or non-use of an easement/non-possessory interest is

sufficient to terminate that interestC. CHANGED CIRCUMSTANCES

i. Rule: If the circumstances around the burdened land have changed, the interest may be terminated; however, there is a strong presumption of enforcing the conditions

1. If any of the benefits from the original restrictions/plan can be realized, the restrictions will still be enforced, despite substantial changes

a. Changes must “so radical as to practically destroy” the purpose of the restrictions

2. Balance : hamper new development and growth vs. maintaining intent/wishes of

grantorsii. Rationale for Strict Enforcement: Prevents block-by-block changes in the

neighborhoodiii. Remedy: Damages would provide a good middle ground

1. Court would be able to find that the circumstances had changed enough to get rid of the covenants; however, the dominant estate owner would not go away empty-handed

D. ACQUIESCENCEi. Rule: Despite being recorded, a restriction may not be enforceable when the

complainant has failed to enforce similar restrictions against third parties ii. Character: Restrictions must be similar/same character (argue both sides)

1. Morris : Chiropractor business and a 5-unit rental were similar enoughiii. Rationale: The dominant estate owner has induced reliance by subsequent buyers by

not enforcing the restrictions upon others (also, it just seems discriminatory)