User:CheshireKatz/Property

I have my Property Law Chart subpage here.

Based upon:

Property Law: Ownership, Use, & Conservation by Goldstein & Thompson (Foundation Press 2006)

Non-Land

History

Pierson v. Post: Dead fox case, Hunter pursues fox chasing him into a burrow, another hunter slugs the animal over the head and seizes him for himself. Who owns the fox? The pursuer or the killer?

Ghen v. Rich: Dead whale case, Whale washes up on shore 17 mi. from Cape Cod. No way to be sure who killed it. Finback’s sink after being killed and it takes time for them to return to the surface. It is unreasonable to expect the whaler to wait for the whale to return to the surface.

Popov v. Hayashi:Barry Bonds homerun ball, hits Popov’s glove, crowd knocks Popov over and Hayashi recovers it. Court says sell the ball and split the value.

(Personal project: Deference to League)

Tragedy of the Commons - Overconsumption of common grass by cows, leads to economic decline

Rule of Capture

Rule of Capture

Elliff v. Texon Drilling Co.:

Hammonds v. Central Kentucky Natural Gas Co.:

Trespass: depositing "wild" property onto another's land to be stored

usque ad infernos - To the roof of Hell

Armory v. Delamirie:

Ring owner loses ring Chimney Sweep finds ring and brings it for appraisal to jeweler's apprentice Jeweler's apprentice steals ring from Chimney Sweep

Benjamin v. Lindner Aviation, Inc.:Finds money tucked into airplane wing

4 kinds of found goods:

1. Lost - Unintentionally dropped property
2. Abandoned - Intentionally discarded property with no intention to reclaim it (Goods go to the finder)
3. Mislaid - Intentionally laid down property with intention to reclaim it (Goods go to the property owner)
4. Treasure Trove - Money, Gold, or Silver in the ground so long, the owner is certainly dead.

Additional questions of ownership: Land owner v. Finder and Employee/Employer

Finder's rights: 1)Reward; 2) Ownership after time period

Intellectual property rights

Intellectual property rights

Patents

Protects ideas & inventions

Copyrights

Protects expressions & likenesses

Haelan Laboratories v. Topps Chewing Gum

White v. Samsung

Trademarks

Protects manufacturer's identity

Quasi Intellectual Property Rights

International News Service v. Associated Press F: INS is a

Cyberspace

Intel v. Hamidi

Land Rights

History of U.S. Property

Land Acquisitions of Virginia from discovery
1498	Henry Cabot “discovers” & claims North America for the British crown
1500s+	Britain declares it unlawful to purchase land directly from the Natives
1624-1763	France claims overlapping areas, conflict ensues
1763	Treaty of Paris settled, all land east of the Mississippi is Virginian & British
1775	Viviat (along with Johnson, et. al) purchases Virginia land from the Piankeshaw natives
1776	Virginia declares independence from Britain
1779	Virginia statute declares any land purchase from the natives unlawful
1784	Virginia cedes control of the land to the United States
1781-1816	Viviat repeatedly fails to get congressional acknowledgment of land purchase
1818	US conveys an apportionment of that land to M’Intosh
1819	Johnson dies leaving the land to his sons, who then enter litigation with M’Intosh

Johnson v. McIntosh: F: Sons file an action of quiet title seeking to affirm their exclusive claim to the property H: Land purchases made by individuals were illegal. The Treaty of Paris granted ultimate title of those lands to Virginia, not the Piankeshaw. Therefore, Viviat & Johnson’s “purchase” was illusory. The property was acquired & redistributed by the US. The US lays claim to all Native American land, unless a treaty for that land exists.

Yosemite Valley Case F: Individual booted off land, as his presence was distinguished from homesteading, b/c land was reserved for public use.

Illinois Central Railroad Case Navigable Waters – Equal Footing Doctrine

Trespassing

Quare Clausum Fregit (wherefore he broke the close)
Extents of Ownership: Cuius est solum eius est usque ad coelum et ad inferos
Translation: For whomsoever owns the soil, it is theirs up to the sky and down to the depths

Invasion

Jacque v. Steenberg Homes

Modern courts have found that in cases of willful trespass, $30 of nominal damages could be sufficient to give rise to $100,000 of punitive damages. No compensatory damages necessary. Protect personal dignity, autonomy, etc.

Nuisance

One person's property use interferes with another, but they disagree as to who has the entitlement. Determining whether or not an activity is a nuisance, essentially assigns entitlement to one party or the other. The winner has the entitlement.

If the entitlement is protected by damages, the winner is paid cash value for his entitlement. If protected with injunction, the winner can do what they want and the other party has to bargain.

Externalities – Actions by Landowner A that effect Landowner B in ways unconsidered by Landowner A. As neighbours, A & B each share fault.

Maguire v. Yanke

For nuisance, community standards are relevant; some areas may require cattle owners to fence in their cattle, while other areas may require neighbours to fence them out. However, if the cost to fence the "winning" party's land is less than the cost to fence the losing party's, then the "winning" party may be willing to bargain their entitlement away.

Encroachment

Where a builder's improvement is constructed atop her neighbour's land due to an honest mistake...

Somerville v. Jacobs MAJORITY RULE

...the court will demand that either the neighbour buy the improvement or the builder buy the land. A lien is placed on the land until the dispute is resolved. Prevent unjust enrichment.

Peters v. Archambault minority rule

...the court will demand that the improver pay the landowner equitable relief to remove the encroaching structure. Exceptions only in extraordinary cases, where imposing egregious removal costs on an innocent builder would be grossly inequitable. Encourage investigation of one's property lines prior to construction.

Limits on Exclusion

Landords/Employers

State v. Shack Landlord/employer bans attorney & health worker from visiting resident migrant worker privately

Where a resident/employee consents, trespass may be justified by necessity to protect the resident/employee over landlord's objections. Under NJ law, landlords/employers have no right to isolate resident/employee from gov't services and this right cannot be contracted away. However, landlord can require visitors to identify themselves.

Proprietors/Customers

Under common law, proprietors of public accommodations (innkeepers & common carrier) have a duty to the general public and are obliged to serve, without discrimination, all who seek service.

Brooks v. Chicago Downs Track bans bettors for national organization
Uston v. Resorts Hotel Casino bans card-counter

Proprietors of private enterprises (amusements & resorts), on the other hand, have no such duty, enjoying power to serve whom they please (absent conflicts with state & federal civil rights law).

However, N.J. courts stated that the more a proprietor opens their premises, the less right to unreasonable exclusions they retain (opting not to extend such rights to the casino in Uston). Reasonable exclusions include those whose actions disrupt the regular and essential operations of the premises or threaten the security of the premises and its occupants.

Protestors

State v. Schmid University bans political leafletter
NJ Coalition Against War v. J.M.B. Realty Shopping center bans anti-war protestors from demonstrating

Where universities open themselves to the public to encourage discourse, they may not unreasonably restrict persons from engaging in free speech on the campus.

Where shopping malls (or similar mammoth developments open to the public) have replaced downtown business districts as the centers of commercial & social activity, they become essential places for the preservation of free speech, leafletting, & sale of political materials, though subject to the reasonable restrictions by the landowner.

Public Trust Doctrine

Matthews v. Bay Head Improv.

Under the Public Trust Doctrine, the seas & their foreshores belong to the sovereign for the peoples' use and may not be claimed by private landowners.
The public trust extends to adjacent dry sands, but use is limited to those requiring temporary relief from the surf & access to public roads.

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Landowners Duties

Waste

What is waste?

Waste is any alteration to property permitted by a current possessor that may reduce its value for Present & Future Interest holders

• Voluntary Waste (destructive acts, including removal of fixtures* by tenants)
• Permissive Waste (failure to maintain)
• Ameliorative Waste (must not enhance property value, unless all P&FI holders are known & consent)

* Fixtures does not include those annexed items the tenant announced he intends to take or those in the trade/business conducted on the premises by the tenant (dentist's chair). Incidental damages from removal, however, are due to landlord.

Who is protected from waste?

• Present interest holders (Landlords & co-tenants)
• Future interest holders (Reverters, Remainders, etc.)

Co-Tenancy & Shared Ownership

Carr v. Deking, 765 P.2d 40 (Iowa 1988) H: A cotenant may lawfully lease his own interest in the common property to another without the consent of the other tenant and without his joining in the lease. The nonjoining cotenant is not bound by this lease; the lessee becomes a tenant in common with the other owners for the duration of the lease.

Co-Tenancy Table

Modern Constructions of Co-Tenancies
	Tenants in Common (TiC)	Joint Tenants (JT)	Tenants by the Entirety (TbtE)
Necessary Language? "O grants..."	"to A & B"	"to A & B as JT w/RoS" "to A & B as husband & wife"	"to A & B as tenants by the entirety*"
Requirements for Creation		Four Unities Among Joint Tenants 1. Granted at the same Time 2. Granted in the same Title 3. Identical Possessory rights 4. Identical & Equal Interests	Five Unities Among Joint Tenants 1. Granted at the same Time 2. Granted in the same Title 3. Identical Possessory rights 4. Identical & Equal Interests 5. Marriage (or equivalent)
Rights to Sever, Alienate, or Partition	Multilateral Sale or Partition (by ALL similarly situated parties)
		Divorce (50/50 Split by Sale or Partition)**
	Unilateral Sale of Percent of Interest (Not Partition)**
Right to Inherit	Descendable & Divisible rights	Right of Survivorship
* Most jurisdictions require explicit language for a TbtE to be created. ** Partition or severance by divorce or unilateral sale, results in a TiC for the recipients.

Partition _______: Voluntary by parties
Partition in kind: physical division, a judicial act if in the best interest of all.
Forced Sale: a judicial act if in the best interest of all.

In a TbtE jurisdiction, use of the phrase husband & wife, absent contradictory terms, is assumed TbtE, not JT.
One spouse's creditors can't touch TbtE; Neither tenant acting alone can defeat right of survivorship.

No unilateral partition of possessory rights, must be sought through legal action (for TbtE, divorce only).
Absent ouster, a co-tenant in exclusive possession is neither liable to any other for rent nor permitted to claim adverse possession (no hostility without ouster).
Co-tenant may unilaterally lease whole, but must account to co-tenants their share of rent.

Rights of Contribution by Co-tenants

Responsible for share of carrying costs (ie. property taxes).

Responsible for share of reasonable repairs, but notice required.

Not responsible for improvements. At partition, improver is credited for increases & liable for decreases in value.

Co-tenants must not commit waste. Actions for waste can be brought during lifetime of the co-tenancy.

Sue for an accounting → Audit & payments made

Divorce

Traditional

In re Marriage of Graham, 574 P.2d 75 (1978) H: An educational degree has no value, because future earnings are too difficult to calculate.
Marital property does not include:
(a) Property acquired by gift, bequest, devise, or descent
(b) Property acquired in exchange for property acquired prior to the marriage or in exchange for property acquired by gift, bequest, devise, or descent
(c) Property acquired by a spouse after a decree of legal separation; and
(d) Property excluded by valid agreement of the parties.

Dugan v. Dugan, 457 A.2d 1 (1983) H: Goodwill is an accountable property of the entirety

Connell v. Francisco, 898 P.2d 831 (1995) H: In Wa., a mutual property right is presumed between unmarried couples that ostensibly behave as married couples (meretricious relationships).

Same-sex Couples

Braschi v. Stahl, 543 N.E.2d 49 (1989)

The term family, as used in New York City, N.Y., Rules of the City of New York, tit. 9 § 2204.6(d), should not be rigidly restricted to those people who have formalized their relationship by obtaining, for instance, a marriage certificate or an adoption order. The intended protection against sudden eviction should not rest on fictitious legal distinctions or genetic history, but instead should find its foundation in the reality of family life. In the context of eviction, a more realistic, and certainly equally valid, view of a family includes two adult lifetime partners whose relationship is long term and characterized by an emotional and financial commitment and interdependence. This view comports both with our society's traditional concept of "family" and with the expectations of individuals who live in such nuclear units. Hence, it is reasonable to conclude that, in using the term "family," the New York Legislature intended to extend protection to those who reside in households having all of the normal familial characteristics.

In re Cooper, 187 A.D.2d 128 (1993)

Unmarried couples

Meretricious relationship: Stable, marital-like relationship with mutual knowledge that it is not a lawful marriage.

Test: (1) Continuous cohabitation, (2) Relationship duration, (3) Relationship purpose, (4) Resource pooling, & (5) parties intent.

If meretricious, court evaluates each party's interest in the "community" property acquired during the relationship, and makes an equitable distribution of the property.

Municipal Regulation

Eminent Domain

Eminent Domain/Condemnation Cases

Berman v. Parker

Hawaii Housing Authority v. Midkiff

Ruckelshaus v. Monsanto

Wayne County v. Hatchcock - Ryan’s Poletown Dissent

Kelo v. City of New London – Private → Private

Public purpose interpreted as a public use.

Just Compensation

U.S. v. 564.54 Acres: H: Government seizes campgrounds for a public recreational project

L.A. County M.T.A. v. Continental Dev. H: MTA wants to put in light rail. Seizes a portion of Continental’s property, forcing Continental to redesign their structure, removing the portion where the light rail will be. Continental demands “special damages” for loss of view, but this is common to everyone in the vicinity, so not special. Continental is compensated for noise, due to the unusual proximity of the remaining building to the light rail.

Zoning

Zoning typically regulates:

• Use — Intrusive uses restricted to certain parts of town
• Area — Size of lot; Size & placements of buildings

Zoning Process

Sic utere tuo ut alienum non laedas - One should use his own property in such a manner as not to injure that of another.

Euclid v. Ambler Realty: Local landowner contests zoning to prevent commercialization curtails marketability of his land
→ Euclidean zoning: Districting various land uses (single/multiple family homes, light/heavy commercial business, industrial sectors, etc.)

Nuisance may be merely a right thing in the wrong place (pig in the parlor), thus deference to legislature.
Only unconstitutional where clearly arbitrary & unreasonable, having no substantial relation to public health, safety, morals, or welfare.
Under rational-basis scrutiny, exclusion of commercial buildings from residential districts rationally relates to the health & safety of the community.

Udell v. Haas, 235 N.E.2d 897 (N.Y. 1968)</ref>: Rushed rezoning poorly planned.
→ Comprehensive plan: Rezoning all districts of a community in its entirety.

Burdensome zoning requires adherence to clear rules for zoning changes & consideration of alternatives to prevent arbitrary & discriminatory abuse.
A comprehensive plan isn't necessary, but rezoning shouldn't arbitrarily conflict with established land use policies & development plans.

Nonconforming Uses

By default, nonconforming uses or structures existing prior to rezoning are protected.
Furthermore, nonconforming structures may be restored or repaired.
Such uses should be reduced to conform as quickly as is compatible with justice.
Continued use only permissible if substantially the same as permitted at rezoning (eg. bar in res. dist. can't become a strip club, but a cafe might be alright.)

Balancing factors

• Substantial change—extensions/replacements
• Effect on general welfare of municipality

Valatie v. Smith: Nonconforming use of mobile home ejected upon original owner's death (grandfather clause).
→ Amortization: Owner's voluntary dissolution of nonconforming uses, allowing them to recoup investments.
→ Amortization period: Time limit on pre-zoning nonconforming uses, giving landowner the opportunity to conform with minimal loss.

Nonconforming use rights run with the land, unless terminated by an amortization period.

Western Land Eq. v. Logan: Developer's permit applications consistently denied, until area rezoned to bar his proposed subdivision.

→ Vested Right: Entitlement to rely on permit (or application process), assured it will not be revoked or altered.

→ Zoning Estoppel: Contractor's right to evade new zoning changes, where precedent construction reasonably relied on prior zoning.

A permit applicant exercising substantial reliance (eg. clearing land) prior to rezoning has a vested right to nonconforming use.
Such applications are entitled to favorable review for proposals conforming to the prior zoning standards.
Exceptions are permissible where zoning changes were pending at the time of application or a compelling justification for retroactive application exists.

Variances & Special Exceptions

Variances & special exceptions are deviations from the typical zoning conditions, created by necessity or by express grant in the zoning regulation itself.

(Strict) Undue Hardship Test for Use Variances

1. Reasonable return* on land cannot be realized (eg. land now unsellable)
2. Alleged hardship is unique, not affecting most of the district (eg. physical, environmental constraints)
3. Variance will not alter the essential character of the neighborhood
4. Alleged hardship was not self-created (eg. purchased prior to zoning, could not have reasonably known)

* Evidence: Amount paid for Parcel, Present Value, Maintenance Costs, Taxes, Mortgages, Income from land, etc.

Benefit/Detriment (Balancing) Test for Area Variances

1. Consequence of undesirable changes to local character or detriments to nearby land
2. Alternative feasible methods of achieving the same benefit
3. Substantialness
4. Adverse effect or impact on the environmental conditions
5. Alleged difficulty was self-created *

* Does not necessarily preclude the granting of the area variance.

N. Shore Steak House v. Bd of App: Special exception permit application denied for restaurant driveway extension

→ Variance: An authority to a property owner to use property in a manner forbidden by the ordinance.

→ Special Exception: Allows the property owner to put his property to an expressly permitted use.

Inclusion of a permitted use implies that that use harmonizes with the zoning plan & neighborhood.
Burden of proof for a special exception is limited to the law's contemplation of such use subject to "conditions" to minimize impact on neighbourhood.

Spot zoning

Spot zoning occurs when a small area of land or section in an existing neighborhood is singled out and placed in a different zone from that of neighboring property. For example, a park or school might be allowed in a strictly residential area if it serves a useful purpose to the neighborhood residents.

In some areas of the country the courts have found spot zoning illegal on the ground that it is incompatible with the existing land use-zoning plan or in an overall zoning scheme for the community. Whether the exception carved out is reasonable and supported by the facts, often turns on public interest, the effect the spot zoning has on the current uses of neighboring properties, and any ramifications created by the zoning.

Exceptions: Cluster or Planned unit development

Environmental impact

Santa Clarita Org. for Planning the Env. v. L.A. County, 131 Cal. Rptr. 2d 186 (Cal.App. 2003) H: Where a

Growth control

Assoc. Home Builders v. Livermoore, 557 P.2d 473 (Cal. 1976) F: Municipal zoning law restricting residential building permits until local education, sewage disposal, & water supply facilities are expanded to accommodate (prevents new residents from moving in until municipality is ready). H: Builders' claim of "right to travel infringement" does not automatically trigger strict scrutiny. Remanded to trial

Village of Belle Terre v. Boraas, 416 U.S. 1 (1974) F: Zoning law restricting multi-family housing enforced against six college roommates sharing a house H: Deference to legislature

Exclusionary zoning

Racially discriminatory policies or practices are those that actually or predictably result in racial discrimination or have a discriminatory effect are impermissible.
Disparate Impact Test (shown using statistics) is satisfied if:

1. A minority group is disproportionately burdened or segregated as a direct result of a policy or practice AND
2. The DEF fails to (1) present bona fide, legitimate justifications for action OR (2) demonstrate that no less discriminatory alternative is available

Buchanan v. Warley, (1917)

For non-racial discrimination, test is rational-basis.
Affirmative and negative duty:

• Can’t use zoning to exclude low/mod income people to live in ANY municipality in state
• Must use zoning to create opps to make realistically possible an appropriate choice of housing

So. Burlington County N.A.A.C.P. v. Mt. Laurel, 336 A.2d 713 (1975) (Mount Laurel Decision)

Regulatory Takings

A regulatory taking occurs when a zoning law or similar gov't action conflicts with landowners' property rights. Under the 5th/14th Amendment's Due Process & Takings Clauses, the states police power requires that the landowner be justly compensated.

Negative Eminent Domain → Gov't regulations & initiatives have encroached on private land. Landowners demand compensation from gov't (for easement).

Future interest owners are likewise due compensation: more for vested & nominal for contingent.

Questions to ask: 1) Is there a per se taking? 2) Is there a background limitation? 3) Go to "Too far" test

Compensation for Regulatory Takings
Regulatory Taking	Time		Taking?	Examples	Calculation	Compensation?
Denial of all beneficial ($$) uses* (Lucas)	Long-Term		Per Se. Negative eminent domain	Perm. construction moratorium on shore		Significant
	Short-Term		Possible.	2-year construction moratorium on parcel		Nominal, if any
Physical Invasion / Trespass	Long- Term	Permanent	Per Se.** Structured or absolute payments relative to harm less any economic benefit	Cable installation in building (Loretto)	Minimal invasion (rare maintenance) - econ benefit (much)	Nominal ($1)
				30-yr groundwater cleanup on farm	Serious invasion (machinery & workers) - econ benefit (much)	Moderate
		Perpetual recurrent	Possible.	Postal right-of-way thru gated community	Minimal invasion (post carrier trespass) - econ benefit (none)	NO TAKING (Reasonable Exercise of Police Power)
				Military test-firing near hotel	Serious invasion (scares off patrons) - econ benefit (none)	Significant Comp.
	Short-Term (Temporary)		Unlikely. At most, lease value for time & reasonable lost profits	2-day fallen satellite retrieval on farm		NO TAKING (Reasonable Exercise of Police Power)
				2-week crime scene investigation in bar		Moderate
Diminution of value***			Possible.
* Limited to economic loss of those proscribed use interests were permissible at transfer of title. ** No matter how minute the intrusion or weighty the public purpose behind it. *** "Too Far" test: 1) Economic impact on landowner, 2) Interference with reasonable investment-backed reliance, & 3) character of regulation.

Mugler v. Kansas H: Legislation protecting citizens against harm/public nuisance/noxious use (of alcohol) is an appropriate exercise of police power.
Prior non-conforming use? Possible, but not here and never for hazardous activities.

Pumpelly v. Green Bay Co., 80 U.S. 166 (1871) F: Gov't dam causes surrounding private lands to flood H: Physical taking automatically results in obligation to compensate.

Pennsylvania Coal Co. v. Mahon, 123 U.S. 623 (1887) H: Whether a regulatory act constitutes a taking requiring compensation depends on the extent of diminution in the value of the property. Regulatory taking and diminution-of-value doctrine.

Later tests: Permanent physical occupations test (Loretto v. Teleprompter Manhattan CATV Corp.), the Nuisance-control measures test (Hadacheck v. Sebastian), and the Total-takings test (Lucas v. South Carolina Coastal Council).

Penn Central Transportation Co. v. New York City, 438 U.S. 104 (1978) H: Transfer of Development rights, see pic: http://www.emich.edu/public/geo/557book/d244.tdr.jpg

Single out

Average reciprocity of advantage
Diminution of value

Goldblatt v. Hempstead, 1962

Armstrong (1960) - Singling out

Contrast w/reciprocity of advantage

Frank Michelman

• Demoralization Cost
• Settlement Costs

Agins v. Tiburon 447 U.S. 255 (1980) H: A regulation effects a taking if it “does not substantially advance legitimate state interests...or denies an owner economically viable use of his land."

Tahoe v. Sierra 447 U.S. 255 (1980) H:

Coming to the Regulation

Palazzo v. RI 533 U.S. 606 (2001) H:

Exactions

The Nollan-Dolan Two-Pronged Nexus Requirement

1. An “essential nexus” must exist between the asserted legitimate state interest” and the permit condition imposed by government.
2. If the required nexus to a valid public purpose exists, the court must then analyze the “degree of connection” between the exaction and the “projected impact” of the proposed development. There must be “rough proportionality” between the two.

Burden of proof, at least in the second phase of the Dolan analysis, is on the government, not the property owner.

No “precise mathematical calculation” is required, but the regulator must make “some sort of individualized determination” that the exaction “is related both in nature and extent to the impact of the proposed development.”

The “rough proportionality” standard is analogous to the “reasonable relationship” test, and is intended to invoke a higher level of court scrutiny than the minimal level of scrutiny that would occur under the “rational basis” test.

Dolan v. Tigard H:

Local gov'ts must demonstrate:
1. Proposed development exacerbates or creates the need for a public service;
2. Dedication demanded will benefit the proposed development or help address the need; and
3. Dedication demanded is “roughly proportional” to the harm.

Nollan v. CA Coastal Comm'n. H:

Water rights

Landowners adjacent to a body of water have the right to make reasonable use of it.

If water supply is limited, usage rights are proportional to landowner's waterfront.

Water rights can only be converted by waterfront landowners and not outside of the watershed.

Priority of beneficial use (first in time, first in right)

Erickson v. Queen Valley Ranch Co.:

National Audubon Society v. Superior Court: DW&P of L.A. took almost entire flow feeding Mono Lake. Lake levels dropped, surface area reduced by 1/3, & gull rookery isles became peninsulas exposed to coyotes. PLS sued to enjoin DWP, since Mono protected by Public Trust. H: State may make appropriations from the public trust, however possible harms must be considered & mitigated where feasible.

Land Transactions

The Process

Livery of seisin (archaic)

Prior to closing, contract of sale controls. After that, the Deed controls.

Pre-Internet Transactions Process
K of Sale	Executory Period (60-90 days)	Closing
Price	Conditions of Premises	Exchange Deed for $$$
Down Payment (10%)	Title Search	Settlement
Terms control til	Financing	Mortgage

Who is entitled to a commission when the Buyer is found by...
	Mr. A?	Mr. B?	Mr. C?	Seller?
Mr. A (Open K)	X
Mr. B (Exclusive Agency)	X	X	X
Mr. C (Exclusive)	X	X	X	X

Illegal activities by brokers: Giving legal advice, Blockbusting, Steering

Statute of Frauds

Purposes:
1) Prevent fraud
2) Encourage prudent consideration of terms
3) Moment of pause to reduce chance of remorse

K Requiements:
1) Written
2) Signed
3) Describing land in narrow, specific terms *

Partial performance demonstrations to satisfy SoF:
1) Payments
2) Possession
3) Improvements/Construction

* Failure to designate county & state is insufficient, unless description is so definite & exclusive that it doesn't reasonably appear to match other tracts equally (such as proximity to a river's intersection), then parol proof is admissible to locate and designate the tract intended.

Baliles v. Cities Service: K for two lots & help securing loan, after building begun, offer rescinded citing SoF.

K fails SoF (nonspecific → 1. unambiguously describe lots & 2. mention county or state)

Part perf (payment & construction), plus Cities aided in getting bank loan encouraging reliance. Lot goes to Baliles under equitable estoppel.

Hickey v. Green: $500 check (with blank payee line) given as consideration for oral K to buy lot "for new home" at $15K. DEF rescinds offer after PLA's home K'd for sale

K fails SoF, but part perf (payment & sale of home). Lot goes to Hickey under equitable estoppel, upon cash payment in stated period.

Bushmiller v. Schiller: K to buy home with financing condition. $13,000 given as consideration. Buyer approved for balloon loan, but backs out of offer.

K fails SoF, but part perf and no good faith effort to finance. Seller entitled to damages.

Quality of title

Varieties of Titles

Marketable title: Guarantee of no encumbrances (Security, Possessory, & Non-possessory) & free from reasonable objection

Encumbrances

Security interests: Liens & Mortgages

Possessory interests: Long-term Leases & Encroachments

Non-posseory interests: Easements & Restrictive covenants,

Reasonable objections

Significant typographical & factual errors in Deed

Questionable chain of title

Unsettled claims of adverse possession, prior foreclosure, etc.

Insurable title: Insurance company will guarantee property.
Record title: County provides deed detailing chain of title, including recorded security interests.

Conklin v. Davi, 388 A.2d 598 (NJ 1978)

F: Buyers want to back out because it is revealed that the property was acquired by adverse possession and seller's failed to reveal that fact. Buyers claim that this makes the title unmarketable.

To rescind over a delay in closing, a condition must be included in the contract specifying that time is of the essence.

Centex Homes Corp. v. Boag, 320 A.2d 194 (NJ 1974) F: Boag was purchasing an apartment in Centex's development. Boag's employment suddenly moved to Chicago.

Kuhn v. Spatial Design, Inc., 585 A.2d 967 (NJ 1991) F: Kuhn Ks to buy home from Spatial Design (SD) with a mortgage contingency and put down deposit. Kuhns knew that they were not sufficiently financially solvent to obtain the mortgage, yet applied anyway. Prudential issued a mortgage commitment, but later withdrew it. Kuhn then tries to withdraw from K with SD. SD

Skelly Oil Co. v. Ashmore, 365 S.W.2d 582 (1963) F: Skelly seeks to buy a residential property from Ashmore to demolish the home and build a gas station over it. Jones has a lease on the property which prevents the property from being razed. Skelly proceeds with K, planning to clear enough property to begin developing the gas station and they will expand it once Jones's lease is up. During the executory period, a fire consumes the property. Ashmore and the mortgage company are compensated for their interests in the residence and Jones departs. The closing date for the K arrives and Skelly wants the insurance compensation Ashmore received for the house. They claim that they had an equitable conversion interest in the property which superseded Ashmore's. Ashmore refuses to proceed with closing, unless Skelly waives their legal claim to the insurance money. Skelly refuses and the closing is canceled, so the attorneys can research the case. Ashmore informs Skelly that their opportunity to close has terminated and their option contract is void for lack of consideration. The court imposes Skelly's request for specific performance but asserts that

Wiggill v. Cheney, 597 P.2d 1351 (Utah 1979) F:

Deed Description

Methods of describing property boundaries in deed

• Metes & Bounds/Monuments
• Government survey
• Recorded instrument
  • Subdivision Plat

Warranty of Title

Kinds of Deeds

Quitclaim deed

No warranties of title, even assurance of seisin

General Warranty deed

Makes promises on behalf of grantor AND predecessors

Present covenants (breached, if ever, only at time of delivery; statute of limitations runs from delivery)

1) Covenant of seisin (promise of ownership),

2) Covenant of right to convey (promise of right to alienate),

3) Covenant against encumbrances (promise that there are no servitudes or mortgages)

Future covenants (not breached, if ever, until grantee is disturbed in possession; statute of limitations runs from disturbance)

4) Covenant of quiet enjoyment (promise from disturbance by 3rd parties with lawful claims),

5) Covenant of warranty (promise to defend against 3rd parties with lawful claims),

6) Covenant for further assurances (promise to perform whatever future acts are reasonably necessary to perfect grantees title, if later revealed to be imperfect)

Statutory Special Warranty Deed (Bargain & Sale deed) - No promises on behalf of predecessors, but two on his own behalf

1) Grantor promises that she has not conveyed the property previously

2) Grantor promises that she has not created any encumbrances

Duty to Disclose

Caveat Emptor vs. Latent/Patent

Brown v. Lober, 389 N.E.2d 1188 (Ill. 1979) F:

Strawn v. Canuso, 657 A.2d 420 (N.J. ) F: 200 New Jersey homebuyers were allowed to sue the developers of their single-family community in Camden County for fraud and misrepresentation because the homebuyers were not specifically advised by the developer - and were thus unaware - that a closed landfill which contained toxic wastes was located a half-mile away from the homes. They contended the market value of their homes was greatly diminished. The developer's advertising promoted a bucolic environment with "healthy, fresh, country air" and proximity to country clubs and shopping malls.

Under Strawn, developers and brokers have a duty to disclose off-site conditions when three factors are met:

1. the conditions are unknown to the buyers;
2. are known or should have been known to the seller; and
3. "might materially affect the value or desirability of the property."

The ruling was restricted to physical off-site conditions, and does not apply to individuals re-selling their homes - at least, not yet.

Warranty of Fitness

Implied into contracts for land, even if not explicit.

Wawak v. Stewart, 449 S.W.2d 922 (1970) F: Wawak builds a home with ductwork set in concrete beneath the floor. Home sold to Stewarts. Whenever it rains, mud & rainwater flood the ductwork and creep up in the house. H: Court ruled that there was an implied warranty of fitness between builder and buyer.

Nichols v. R.R. Beaufort & Associates, Inc., 727 A.2d 174 (1999) F: R.R. Beaufort builds a home on unstable soil. Home sold to Beaufort's cousin, Cronin. When Cronin found cracks in garage floor, Beaufort replaced it. Years later, home sold to Nichols. After three years, the garage floor caved in. The court abandoned the privity requirement for claims made by subsequent purchasers against a builder or contractor for breach of an implied warrant of good workmanship for latent defects because the implied warranty was to protect innocent buyers, and latent defects would not manifest until after the home was sold to an unsuspecting buyer.

Stambovsky v. Ackley, 169 A.D.2d 254 (1991) F: Haunted house case.

Caveat emptor

Stigmatized property

Transfer of Title

Land registration requirements for subsequent BFP to obtain property
Jurisdiction	Recorded first	No notice of prior conveyance
Race (archaic)	X
Notice		X
Race/Notice	X	X

Mister Donut of America, Inc. v. Kemp, 330 N.E.2d 810 (1975) F: Mr. Donut leased property from Webby with an option to buy. Webby later sold property to Kemp. Mister Donut then sought enforcement of their option to buy from Kemps.

Gagner v. Kittery Water District, 385 A.2d 206 (1978) F:

Miller v. Green, 264 Wis. 159 (1953) F: Miller, the lessee leased farmland from its owner, Heinz, and actively used the land. The lessees entered into a land contract with the owner to purchase the property. The claimants then entered into a purchase agreement with the owner and purportedly bought the site. The claimants recorded their deed. In the lessees' action to establish their superior rights to the property, the trial court found for the claimants. On appeal, the court held that the lessees possessed the property under their rental agreement and that their use of the property was sufficiently open and exclusive to constitute constructive notice of their possessory rights to the land. The court also held that the lessees' possession was constructive notice of their land contract and that their rights to the land were superior to the claimants' rights, even though the claimants had recorded a deed first.

Daniels v. Anderson, 642 N.E.2d 128 (1994) F:

1. A&J enter K for land w/Daniels including RoFR for adjacent land
2. A&J enter installment K w/Zografos for sale of that adjacent land
3. Zografos pays up to two-thirds to A&J
4. Daniels seeks to enforce their RoFR which should have been offered at (2)
5. Zografos finishes paying A&J for land ($60,000 → A&J) with notice of Daniels interest in the land.
6. Court: Daniels pays Zografos for land + property taxes ($60,000+pt), as if they had bought the land at (2), then directs Daniels & Zografos to seek other damages from A&J.

• If Zografos had finished paying for land without receiving notice of Daniels interest, Zografos would have received the land and Daniels right would have been voided.

Title Searches

Assuming the jurisdiction requires BFP to check record index

If recorded, but inadvertently not included in index, title search of index was adequate.
If recorded & indexed, but inadvertently not listed online, title search online is inadequate.

Howard Savings Bank v. Brunson, 582 A.2d 1305 (1990) F: Brunson purchased land in Newark, NJ. Deed was properly recorded & indexed by county. Brunson borrowed $50,000 from Howard Savings Bank (Howard), secured by a mortgage, properly recorded, but not indexed. Brunson delivered deed for the property to Ijalbas, properly recorded and indexed by county. Ijalbas borrowed money from Chrysler First Financial Services Corporation (Chrysler), secured by a mortgage, properly recorded and indexed. After this, Howard's recorded mortgage was discovered by county and finally indexed. Howard foreclosed on the Ijalba's property, claiming its mortgage had priority over Ijalbas' deed and Chrysler's mortgage. Ijalbas & Chrystler argued that Howard's mortgage wasn't indexed, and thus a title search did not reveal it. Court found their was no notice by Howard as their interest was not indexed. Requiring lengthy title searches for unindexed items would create too great a burden on buyers. Placing burden on mortgagee to make certain their interest are indexed is most equitable.

Skelton v. Martin, 673 So.2d 877 (1996) F: In 1991, Martin failed to pay taxes on owned land. County certified Bank Atlantic to seize deed & sell land. In 1994, Bank Atlantic sold deed to Skelton. Meanwhile, Perry entered K to buy land from Martin. Perry hired Equity Title to do the title search. Equity Title did not submit a formal request to the county, but instead conducted an online search, which did not reveal the tax lien. Perry bought the land. However, the court did not recognize the online search as a current standard in Florida, thus Skelton owns the land and Perry may seek damages from Martin.

Sabo v. Horvath, 559 P.2d 1038 (1976) F:

Breen v. Morehead, 136 S.W. 1047 (Tex. 1911) F:

Abstracts, Opinions, & Title Insurance

Williams v. Polgar, 215 N.W.2d 149 (1974) F: H: An abstracter is liable to an individual who reasonably relies on a faulty abstract where that reliance was foreseeable, even where fault was not fraudulent, but negligible.

Title insurance is insurance for events which may have occurred prior to closing. The contract may exclude a number of events, if it so desires.

White v. Western Title Insurance Co., 710 P.2d 309 (1985) F: White purchased land with substantial subsurface water and obtained title insurance from WTI. In their K with White, WTI included exceptions in the fine print for a vast array of concerns not evident in the public record, as well as anything the insured knew about, and a number of other items including water rights. An easement of water rights is discovered, which was clearly on public record, but not revealed to the Whites by WTI, whether or not they found it. WTI refuses to compensate and fierce litigation commences. Court says that they will interpret the contract.

Haw River Land & Timber Co. v. Lawyers Title Insurance Corp., 152 F.3d 275 (1998) F:

Land Finance

Land Security

Land Security exist to ensure performance of the contract. Upon foreclosure, the property is seized. Two kinds of foreclosures.

• Strict Foreclosure: Property is conveyed to creditor. All creditee's interests in it are forfeited.
• Foreclosure by Sale: Property is sold at public auction, the creditor is paid their due, and the rest is returned to the creditee.

There are a number of kinds of security transactions:

• Mortgage
  • Purchase Money Mortgage
  • Installment Land Sale
  • Reverse Annuity Mortgage
  • Shared Appreciation Mortgage
  • Veritable Interest Rate Mortgage
  • Nonrecourse Mortgage
• Sale leaseback
• Assumption Transaction

Sebastion v. Floyd, 585 S.W.2d 381 (1979) F: Lady enters into installment contract, misses 7 installments in 21 months, sellers sue to enforce default provision in contract. Court says protections for mortgagors should be given to buyers who enter into installment land contracts, too. H: When a typical installment land contract is used as the means of financing the purchase of property, legal title to the property remains in the seller until the buyer has paid the entire contract price or some agreed-upon portion thereof, at which time the seller tenders a deed to the buyer. However, equitable title passes to the buyer when the contract is entered. The modern trend is for courts to treat land sale contracts as analogous to conventional mortgages, thus requiring a seller to seek a judicial sale of the property upon the buyer's default.

Koenig v. Van Reken, 279 N.W.2d 590 (1979) F: Lady is in trouble w/ 3 mortgages on her house, signs contracts with Van Reken, who bails her out, but then takes title to her house and leases it back to her & gives her an exclusive option to repurchase. She pays for 1.5 years, then defaults on one monthly payment. Van Reken tries to evict her, she sues to have her deal with him considered an equitable mortgage H: Court says yes, equitable mortgage “Under Michigan law, it is well settled that the adverse financial condition of the grantor, coupled with the inadequacy of the purchase price for the property, is sufficient to establish a deed absolute on its face to be a mortgage.”

First Indiana Federal Savings Bank v. Hartle, 567 N.E.2d 834 (1991) F:

Cornelison v. Kornbluth, 542 P.2d 981 (1975) F: Bad faith waste, active damage to property or bad husbandry (on farms)

Murphy v. Financial Development Corp., 495 A.2d 1245 (1985) F: Murphys end up in arrears with Def. Receives foreclosure notice. Murphy pays off mortgage, but not some legal fees, like 2nd appraisal. Def commenced foreclosure anyway, selling to bank, who resold to Home Traders, Inc. H: A mortgagee must exert every reasonable effort to obtain a fair and reasonable price under the circumstances, even to the extent, if necessary, of adjourning the sale or of establishing an upset price below which he will not accept any offer. Fair price is determined on a case-by-case basis, but a "shock the conscience" test is applied. Bad faith requires an intentional disregard of duty or a purpose to injure.

Dividing land

Present conveyance / future interest

Present Conveyance / Future Interest (FI)
Present Conveyance	Form	FI of Grantor	FI of 3rd Party	Future Conveyance Examples	Language
Fee simple absolute	O grants L to A absolutely				"& his heirs," "absolutely"
Life estate	O grants L to A until A's death (whether A has resold L or not)	Reversion	Remainder	When A dies (even if L has been reconveyed), L reverts back to O, unless promised to a 3rd party through a remainder condition.	"for life," * "pur autre vie" **
Fee simple determinable	O grants L to A with a necessary restriction, then back to O.	Possibility of Reverter			"for so long as," "during," "until" automatically ended;	must use clear, durational language and be subject to a condition
Fee simple subject to a condition subsequent	O grants L to A under a condition, after which O may repossess L	Right of Entry (or Power of Termination)			"but if X, then O may reenter & retake" right to reenter must be explicit;
Fee simple subject to an executory limitation	O grants L to A under a condition, after which B may take possession.***		Executory Interest		"but if X, then B may enter & take" right to reenter must be explicit;
Leasehold Terms of Years Period Tenancy Tenancy at Will	O grants L to A for a set time period	Reversion	Remainder
Fee tail (archaic)	O grants L to A (& only A's heirs)	Reversion	Remainder	If A dies childless, absent a 3rd party remainder, L reverts back to O
* Must be explicitly lifetime terms, never with term of years ("to A for life or 30 years") ** Measured by a life other than the grantees *** Shifting/Springing

Absolute restraints on alienations are void. ("to A so long as she never attempts to sell")
Shifting executory interests go from one grantee to another upon the occurrence of some condition.
Springing executory interests go from the grantor to a grantee upon the occurrence of some condition. Another way to put it is that there is a springing executory interest whenever there is an unavoidable gap in ownership of a present possessory estate in the land. If the gap is avoidable, then you don’t call it a springing executory interest.
Life estate prevented from Voluntary Waste (destructive acts), Permissive Waste (failure to maintain), Ameliorative Waste (must not enhance property value, unless all FI holders are known & consent)

To C for life, then to C's children. 1) C has no children - Contingent 2) C has one child - Vested 3) C has two children - Vested

Shifting interest A > B If B gains +100 acres, > C

Springing interest If X marries D, A > X

Escheat = Distribution of land to state when the intestate deceased has no heirs.

Words of Purchase - Property Description Words of Limitation -

Marhenholz v. Co. Board of School Trustees, 417 N.E.2d 138 (1981) F: Huttons gave land to School district, but "this land to be used for school purposes only." Son of Huttons, Harry, inherited land. (Jaqmains claim to have bought the land from the Huttons, but no purchase is permissible where land is already conveyed under FSD or FSSCS)

Future Interest Problems

Rule Against Perpetuities

"The common-law rule prohibiting a grant of an estate unless the interest must vest, if at all, no later than 21 years (plus a period of gestation to cover a posthumous birth) after the death of some person alive when the interest was created." The RAP kicks in after the expiration of the last of the "lives in being plus twenty-one years."

About half of the states in the United States follow the Uniform Statutory Rule Against Perpetuities, which gives a grantor 90 years for the interest to vest. If the interest does not vest to some life in being within 90 years, the grant will be reformed judicially so that it does vest.

Other states follow a "wait and see approach," whereby if the interest does not vest within 21 years, the court will either reform the grant so it does or strike the clause that violates the rule.

A = Grantor
B = Living, Known 3rd Party
C = Living, Known 3rd Party
D = Living, Unknown 3rd Party
E = Unborn, Unknown 3rd Party

FA = Fee Simple Absolute
FD = Fee Simple Determinable
LE = Life Estate

V. = Vested
C. = Contingent
Rv = Reversion
Rm = Remainder
Ex = Executory Interest

---

LE to B = Rv by A
LE to B → FA to C = V.Rm by C
LE to B → FA to D = C.Rm by D
LE to B → FD to C = V.Rm by C + Rv by A

FD to B = Rv by A
FD to B → LE to C = Rv by A

Statues
Wait & See
USRAP: RAP, 90 years, reform cypres

Life Estate - Grantor: Reversion - Third Party Transforge: Remainder - Vested / Contingent ??

Leasehold
"So long as" - Fee Simple Det. - Pos. of Rev.
"But if" - FS Sub to Con Sub - Right of Reentry
"But if" - FS Sub to Exe Int - Exe Int

Remainder

Landlord-Tenant Relationship

Leaseholds

Known from the start of lease. Because of this, no notice is necessary to terminate. A term of years greater than 1 year must be in writing (SoF).

Periodic Tenancy - A lease for successive or continuous lengths of time, until L or T give proper notice of termination. Notice must be given to terminate at common law, equal to the period (unless year to year, then only 6 months notice is required).

Leaseholds
Kinds	Language	Terms	Notice	Conditions
Tenancy of Years or Fixed-term leasehold		Lease for a fixed period (1 day, 2 months, 10 years), then automatically terminated	No notice is necessary	If longer than a year, must be in writing (SoF)
Periodic Tenancy		Lease for successive periods, terminated only with notice by L or T
Tenancy at Will		Tenancy for no fixed period, terminated only with notice by L or T	Terminated by either party at any time. State statutes require reasonable demand to vacate.
Tenancy at Sufferance		When T has wrongfully held over past period of leasehold (short lived)	None.	Only until L evicts or recontracts

Responsibilities

T has responsibility to keep premises in reasonably good repair & must not commit waste.

Doctrine of waste linked with law of fixtures.
When a tenant removes a fixture, he commits voluntary waste.
Fixture: Once-movable thing that by virtue to its attachment to realty objectively shows the intention to permanently improve the realty. (heating systems, customized storm windows, furnace, lighting fixtures) T must not remove a fixture, no matter that she installed it. Fixtures pass with ownership of the land. But what's a fixture: 1)The parties private agreement on fixtures controls. 2) In the absence of agreement, T may remove her installation, so long as removal does not cause substantial to the premises. 3) If removal will cause substantial harm, then in objective judgment T has shown an intention to install a fixture.

T's duty to pay rent.
When T is in breach & still in possession of premises: Landlord may 1) evict through courts & sue for rent owed or 2) continue relationship & sue for rent owed. Landlord you MUST NOT engage in self-help (change locks, forcibly remove T, remove T's possessions). Self-help is flatly outlawed criminally & civilly.
When T is in breach & is no longer in possession of premises (vacates prior to termination): Landlord may 1) Surrender (implicit offer by T to give up leasehold & L accepts), 2) Ignore abandonment (continue to hold T responsible; only available in minority of states), 3) Relet premises on wrongdoers behalf, hold T liable for any deficiency. L must at least try to Relet (mitigate).
L must put T in actual physical possession of premises. If a previous holdover T still resides there, L is liable.
Fundamental implicit covenant right of quiet enjoyment: T has a right to quiet use & enjoyment of premises without L's interference. 1) A breach of actual, wrongful eviction 2) breach by constructive eviction 1)Substantial Interference attributable to L's failure to act a Chronic problem. 2) Notice must be given, & L must fail to respond meaningfully, 3) T must have vacated after L failed to correct problem. Is L responsible for bothersome conduct of other Ts? No. However, there are two exceptions: 1) L has a duty not to permit a nuisance on the premises, 2) L must control common areas.
Implied warranty of habitability (residential leases) (NON-WAIVABLE, "as is" terms are void)
Premises must be fit for basic human habitation. Bare living requirements must be met. Appropriate standard is local housing code or independent judicial conclusion (failure to provide heat in winter, plumbing, etc.). T is entitled to 1) Move out & terminate, 2) Repair & deduct (permitted by statute), 3) reduce or withhold rent until court determines value, 4) Remain, pay rent, & affirmatively sue. If T lawfully reports L for failure to meet housing code, L is barred from penalizing T (eviction, rent increase, or harassment).

Assignments & Subleases

Privity of Estate & Contract

Assignee is responsible for all promises that run with the land (duty to pay rent, to maintain property, etc.). Assignee only obtains privity of contract where she explicitly assumes the terms of the contract.

If T2 is assigned property by T1, L has privity of Estate with T2 & privity of contract with T1. If T2 is sublet property by T1, L has privity of Estate & Contract with T1. T1 has privity of Estate & Contract with T2.

In general, the assignee has privity of estate with a lessor. With privity of estate comes the duty on the part of the assignee to perform certain obligations under covenant, e.g. pay rent. Similarly, the lessor retains the obligations to perform on covenants to maintain or repair the land.

If the assignor agrees to continue paying rent to the lessor and subsequently defaults, the lessor can sue both the assignor under the original contract signed with the lessor as well as the assignee because by taking possession of the property interest, the assignee has obliged himself to perform duties under covenant such as the payment of rent.

Assignments vs. Subleases
L to T1 for 5 years, then...	Reversionary interest?	Assignment?
T1 to T2 for remainder of the lease	None	YES
T1 to T2 for remainder of the lease, so long as...(condition)	Reversion on occurrence of condition	NO, Sublease
T1 to T2 for 2 years	Reversion at specified time	NO, Sublease

Funk v. Funk, 633 P.2d 586 (Idaho 1981) H: "With my consent" term for subleases is limited to reasonable justifications for dismissal.

Berg v. Wiley, 264 N.W.2d 145 (Minnesota 1978) F: PLA (Tenant) ran restaurant & DEF (Landlord) wanted it closed. After a series of disputes, landlord breaks in at night & changes the locks. H: No Self-help to evict T, must go through courts.

Austin Hill Country Realty, Inc. v. Palisades Plaza, Inc., 948 S.W.2d 293 (Texas 1997) H: A commercial landlord has a duty to mitigate damages when the tenant breaches the lease and abandons the premises.

Aurora Business Park Associates, L.P. v. Michael Albert, Inc., 548 N.W.2d 153 (Iowa 1996) H:

Hypo: L leases to T1, T1 assigns to T2, T2 assigns to T3, T3 begins to destructively harm property.
L has privity of estate with T3, but if T3 has fled state or is bankrupt, L has privity of contract with T1 (secondary privity). L has no privity with T2, absent express assumption.

Easements

Appurtenant vs. In Gross

Appurtenant: Benefits dominant in her enjoyment of her own property (typically, two parcels involved).

Passes automatically with the dominant tenement, regardless of its mention in the conveyance.

A grants B a right-of-way across A's land so that B can more easily reach B's land.

In gross: Benefits dominant in her personal or commercial gain, unrelated to any other land.

Non-transferable, unless for commercial purposes.

eg. right to fish, mine minerals, lay power lines, place a billboard

Negative vs. Affirmative

Negative easement: Compels servient land to refrain from some action that would impact resource of interest to dominants.

Must be granted expressly in a signed writing.

Limited to five resources: 1) Light, 2) Air, 3) Lateral Support, 4) Streamwater (from artificial flow), 5) Scenic view (in some states).

Affirmative easement: Compels servient land to permit some invasion by dominant.

Methods of Construction

Express: Granted or Reserved (If > 1 year, must be in writing through deed of easement).

Implied from Prior/Ongoing Use:

A owns two lots & lot 1 is hooked up to a sewer drain on lot 2. Implied easement if 1) Use had been apparent, 2) Parties expected use would survive division, because it is reasonable necessary to dominant lands use & enjoyment.

Necessity: Rights-of-way where land is partitioned & conveyed leaving no way out, except through servient land.

Prescription: Acquired by satisfying adverse possession

1. Continuous use for statutory period,
2. Open & notorious use,
3. Actual use, &
4. Hostile use (without servient owner's permission)
* Exclusivity not required.

Profit a Prendre: Identical to an affirmative easement in gross from which a profit is drawn (rights to collect minerals, lumber, oil, etc.)

Scope

Set by the terms of the grant or conditions that created it. Unilateral expansion of an easement is impermissible.

Case Law

Chevy Chase Land v. U.S.: Desire to create a trail. Burden of hikers no greater than occasional freight train. Scope of

Marcus Cable v. Krohn:

O'Neill v. Williams: Grants or reservations are interpreted fairly construed in favor of easement's seeker.

Miller v. Lutheran Conf. & Camp H: Frank & Rufus Miller possess a lake with 3/4 & 1/4 interests respectively. Rufus dies & Rufus's heirs give license to a Lutheran camp.

Stoner v. Zucker:

Easement implied from prior use

The properties were once owned simultaneously by the same person and then severed in two.

Quasi-easement

Notice: Verbal or Actual Physical Presence

Necessity (other methods, but economically infeasible to business)

Dupont v. Whiteside, H:

Dominant: Licensed to come on to Servient's property
Servient: Possesses land upon which a dominant is licensed to be on.

Easement by (strict) necessity

There was one owner (necessity must have arisen from property split)

No other practicable method of accessing property

Where land is not landlocked, no strict necessity.

MacDonald Properties v. Bel-Air Country Club, 140 Cal. Rptr. 367 (Cal. App. 1977) H: In CA, easement by prescription only requires 5 years. Permission or adverse use? If they know they're there, why are the true owners not addressing their presence.

How to distinguish between easement by prescription & adverse possession? Look for evidence of permanence.

Lyons v. Baptist School of Christian Training, 804 A.2d 364 (Maine 2002) H: pg. 872 with test on pg. 873

Covenant

Covenant - A contractual promise by landowner to refrain from doing something regarding land.

Negative (restrictive) covenant (dramatically more expansive than negative easement) example

"I promise not to build for commercial purposes on my land."

Affirmative covenant example

"I promise to maintain our common fence, garden, etc."

Distinguished from equitable servitude on the basis of relief sought

Suits for money damages arise from covenants

Suits for injunction arise from equitable servitude

Covenant run with land? Look to reasonable expectation that burden & benefit would run.

A1's land is burdened, B1's land is benefited. A1 sells to A2, B1 sells to B2. A2 violates the covenant.

A1's burden run? Usually not. Requires that:

1) Promise in writing, 2) Intended to run 3) Promise must Touch & Concern land, 4) Horizontal (A & B in succession of estate*, only required for Burden) & vertical (some non-hostile nexus between B1 & B2, such as contract, devise, or dissent**) privity, 5) Notice

Does the benefit of B1's promise run to A2 run? Often not. Requires that

1) Promise in writing, 2) Intended to run 3) Promise must Touch & Concern land, 4) Vertical privity

* grantor/grantee, landlord/tenant, creditor/debtor, or shared some servitude now at issue
** If A2 acquired through adverse possession

Runyon v. Paley, F: Promisor

Ways to break an easement:

• Consent → release
• Merger
• Abandonment → non-use
• Equitable → Laches, Estoppel, or Acquiescence
• Prescription
• Changed Conditions
• Statutes
• Limited Term
• BFP without notice
• Marketable Title → Rerecording
• Easement by Necessity → Necessity Ends
• Easement by Estoppel → Stops Being Unfair
• Legally Unenforceable

Illustration of Horizontal & Vertical Privity
			Horizontal ← → Privity
Promisee				Promisor
	↓ Vertical Privity ↓				↓ Vertical Privity ↓
Current Owner of Servient Estate				Current Owner of Dominant Estate

Licenses

Mere privilege to enter another's land for some delineated purchase, not subject to SoF. Freely revocable, unless estoppel bars revocation. Estoppel kicks in where licensee has invested labour & monies in reasonable reliance on license's continuation. Two classic cases:

1) Tickets create freely revocable licenses.

2) Nothing good comes of neighbors talking by fences, oral easements are freely revocable licenses.

Equitable Servitude

Does an equitable servitude run with the land?

Often not. Requires that 1) Original promise must have been in writing, 2) Intended servitude to run 3) Promise must Touch & concern land, 4) Notice, 5) Equitable servitude does not require privity

Vast majority of states accept implied ES

A is a subdivider, who divides her land into 50 lots. Lots 1-45 have been sold with the reservation for residential purposes. A sells Lot 46 to B a commercial developer. Can B be enjoined from building a convenience store? Common scheme doctrine → 1) When sales began, A had a general scheme of residential development which included the lot in question. 2) B had notice of the promise contained in the prior deeds. Three forms of notice attributable: 1) Actual, 2) Inquiry (neighborhood seems to conform to common restrictions, lay of the land), or 3) Record (notice sometimes imputed to purchasers on the public record*)

* Subsequent buyer does not have record notice of the contents of prior deeds by the common grantor

Adverse Possession

Requirements

Continuous, uninterrupted use for statutory period

Open & notorious use

Actual use

Hostile use (without the servient owners permission)

Subjective intent is irrelevant

Tacking

One adverse possessor may tack on his predecessor's time so long as there was non-hostile privity

Not permitted where there has been an ouster

Disabilities

Will not run against a true owner afflicted by a disability (infancy, insanity, imprisonment, etc.) at the inception of the adverse possession

Color of Title

If A possesses a flawed deed on a plot of land,

X X X X X X X X X X X X	. . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . . . . . . .	. . . . . . . . . . . . . . . . . . . . . .

Conveyances

Every conveyance will consist of

1) The land contract (Contract controls)

Contract must satisfy the SoF by 1) being in writing, 2) being signed by DEF, 3) describing of land, 4) stating some consideration

Absent satisfaction of SoF, equity will intervene if 2 out of 3: B takes possession of land, B remits payments, B makes substantial improvements.

Two implied promises - 1) Marketable title (title free from reasonable doubt, lawsuits, & threat of litigations)*, 2) No false statements of material fact (&, in most states, failing to disclose latent material defects)

2) The closing (Deed controls)

Legal title is passed from seller to buyer

Lawfully Executed

1) in writing, 2) signed by grantor, AND 3) compliance with statutes

& Delivered

1) Physically handed over OR 2) Grantor had present intent to be immediately bound

* A title is unmarketable if 1) acquired by adverse possession, 2) marked by encumbrances (servitudes & mortgages) that the buyer has not waived, 3) in violation of zoning ordinances.

Recording system

Race/Notice systems

In notice jurisdiction, last bona fide purchaser wins, regardless of first to record.

In race-notice jurisdiction, first bona fide purchaser to record wins.

Bona fide purchaser

1) Must be purchasing for value

2) Must not have notice at the time of conveyance - Actual, Inquiry (evidence on the property), or Record (nothing on record)

Proper recording

Problem of the wild deed

O sells to A who does not record

A sells to B who does record the transaction of A to B (O disconnected from A in the chain of title)

Record of A to B is a wild deed.*

O sells to C who does record

C wins in both notice jurisdiction & race-notice jurisdiction

NJ - Last bona fide purchaser

RNJ - First bona fide purchaser to record properly

*If a deed entered on the records has a grantor unconnected to the chain of title, it is a wild deed & incapable of giving notice.

Problem of the deed

In 1950, O owns Blackacre.
In 1950, X sells Blackacre to A who records
In 1960, O sells Blackacre to X who records
In 1970, X sells Blackacre to B who records
One who conveys land in which he has no interest (X) is estopped from denying the validity of that transfer, if he subsequently acquires the land that he has previously transferred.
From 1950 to 1960, O owns Blackacre
From 1960 to 1970, A owns Blackacre
From 1970 forward, B owns Blackacre
A acquired by being a bona fide purchaser who recorded and X is estopped. B acquired by being a bona fide purchaser who recorded and A recorded to early.