Property Outline Long

I. METHODS OF ACQUIRING PROPERTY RIGHTS........................................................1

A. Capture............................................................................................................................... 1

B. Finders, Keepers?............................................................................................................ 5

C. Adverse Possession......................................................................................................... 8

D. Acquisition by Gift........................................................................................................ 13

II. ESTATES IN LAND AND FUTURE INTERESTS.......................................................15

A. Possessory Estates........................................................................................................ 15

B. Future Interests............................................................................................................. 21

C. Co-ownership................................................................................................................. 40

III. LANDLORD-TENANT LAW........................................................................................ 45

IV. NUISANCE....................................................................................................................... 57

V. PRIVATE LAND USE RESTRICTIONS3.....................................................................62

A. Easements....................................................................................................................... 641. Methods of Creation...............................................................................................................642. Transfer, Scope, and Effect.................................................................................................. 773. Termination.............................................................................................................................81

B. Covenants and Servitudes.......................................................................................... 841. Creation and Effect................................................................................................................. 842. Termination........................................................................................................................... 102

VI. PUBLIC LAND USE RESTRICTIONS.......................................................................105

A. Eminent Domain......................................................................................................... 105

B. Police Power Regulation.......................................................................................... 107

C. Physical and Regulatory Takings..........................................................................1071. Inverse Condemnation Remedies...................................................................................1082. Physical Takings by Regulation.......................................................................................1093. Takings Based on Economic Impact..............................................................................1094. Exactions................................................................................................................................. 1165. Summary................................................................................................................................. 118

I. METHODS OF ACQUIRING PROPERTY RIGHTS

A. Capture

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Possible causes of actionTrespass Trespass on the CaseAct by D (misfeasance) Act (misfeasance) or failure to act

(nonfeasance: provided D had a duty to act) by D

Which resulted in a direct forcible injury Which resulted in injury (not necessarily direct or forcible)

To P’s person or to property in P’s possession To property of P (inc. not in possession of P) or to some non-property interest of P

Modern trespass on the case: Negligence, nuisance

Pierson v. Post Facts:

o On neither of their lando Post: in pursuit of fox, injured it, with dogso Pierson: saw Post was in pursuit, snatched and took away foxo Post: filed complaint (trespass on the case): that he had right to fox

Issue: did Post get property right by pursuing fox and injuring it? Rule

o General rule on acquisition 1. Intent to posses 2. Actual control

o Don’t need actual killing to acquire possession Pursuing doesn’t give right

o Requirement: killing the animal, or putting it in situation where fox could no longer escape gives property right.

Actual bodily seizure not indispensible: mortal wounding by one not abandoning his pursuit may give

possession 3 requirements: Tompkins Test

o 1. Unequivocal intention of appropriating the animal to his individual use

o 2. Deprive animal of natural liberty o 3. Brought in your certain control

o rationale: in public policy (prospective view: want dead foxes) Ruling for Pierson rationale

Promote certainty + piece and order in society (first in time first in right: first to actually capture)

o Easy to determineo Deprive of liberty and acquisition of certain control

(basically kill or trap it)o Clear rule=easy for ppl and judges to comply

Otherwise might be fights about it (litigation and in person)

But assumes hunters will know rule

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Want Foxes Deado Adopt rule that ppl kill foxes

Dissent: ppl wont fox hunt bc less guaranteed to get fox after pursuing

But this is assumption: that ppl fox hunt to get foxes

Others will kill no matter what if rule this way And improve hunting techniques

Dissent (retrospective view: want to help activity)o 1. this should be settled by panel of fox hunters: use the tradition/knowledgeo 2. Proposed rule: get property when pursuer in reach and reasonable

prospect of taking (closing in) (retrospective view: reward pre work) hard to determine reasonableness uncertain: therefore not affective public policy: but say nice to be

flexible but: rewards the act of fox hunting

alternative: Post could have made trespass on a case. Maybe this was interference with some non-property interest (actually brought as trespass on the case, but court basically viewed as trespass to reach policy outcome)

Popov v. Hayashi (barry bonds ball case) facts:

o ball hit into stand. Caught by Popov, but then tackledo Hayashi spotted ball, picked it up and walked out

Issue: who’s ball? Apply Pierson v. Post: apply Pierson three parts to Popov catch

o 1. Intention: went to game partially to get ball: tracked ito 2. Deprive natural liberty: caught ball, changed directiono 3. Certain control: had control of it temporarily at least

Tayashi: say not certain control: so up for grabso Didn’t establish possession: but bc of wrongful act of crowd

Traiditon of baseball crowd But public policy: shouldn’t allow this type of action

Rule: significant but incomplete steps to get abandoned property can result in pre-possessory interest when incomplete bc of unlawful acts of others

Appo Popov: has pre-possession interesto Hayashi: wasn’t wrongdoer: did maintain certain control: full possession

(although not of fully abandoned property) Result: conversion claim can only be sustained to value of Popov’s interest:

o Sell the ball and split proceeds: doctrine of equitable division

Most common application: drilling for oil: whoever gets it first: bc moves between ppl’s land But inefficient: bc if pump slower, can get more resources

Keeble v. Hickerbingbill Facts

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o Keeble (P) had commercial duck pond: lured wild ducks onto his propertyo D shot gun over pond to interfere: hindrance

Did it maliciously: interference with trade Issue: damages to landowner when maliciously uses physical means to scare chattels

of landowners land, when person knows it results in decreased livelihoodDistinction between Keeble and PiersonPierson KeebleNeither’s land P’s LandAnimal Dead Either Way No Production (Duck flies away)Recreational Livelihood (maybe law protects livelihood

more) (don’t want to make ppl indigent) App: D interfered with P’s lawful and beneficial practice Rule: where there is a disturbance, lawful action against the disturber

o And land owner gets constructive possession Policy

o Want dead ducks: shouldn’t support the one who making less productiveo Might be different if D had competing duck farm, trying to get ducko But here; kind of consistent with Pierson dissent: reward engaging socially

benefit activity. Post lawyer: should have argued trespass on the case and non-possessory interest was the hunt

Then wouldn’t have been the same possession issue of the fox: better policy arguments

Possession: Occupancy/possession was good for reaching policy goal: create certainty and peace

in societyo Manipulating concept of possession to reach this goal

Protect Exclusive Right to property Policy

o 1. People willing to invest in property they are secure in o 2. The more likely they are to make productive investmentso 3. Provides stability and security that encourages those productive

investments want to encourage people to engage in productive activity

o so provide means of protection for ppl so engagedo not as concerned for recreational activity (compare Pierson with Keeble

interest)

Constructive Possession protects the constructive ownership of the land owner (Keeble)

o trespassing distracts from stability and certainty that people own propertyo trespass likely to lead to altercationso desire to provide peace and stability in society

so recognizing constructive possession: helps avoid these things: if have constructive Possession: that means constant possession: ppl wont come in to

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try to grab it if it’s on your land, prevent trespass

Problem 2 on page 33 facts: P keeps herd of deer, return to P's land at night. D shoots deer on public land. Result?

o For P: domestic animals: deprived of will to run wild: in his control: meets three elements of Pierson at this point

Policy argument: want to reward laboro Effort worthy of society’s protection: P doing something society likes, protect

ito But D also hunting: just unlucky: didn’t know it wasn’t wild deer

Problem 3 on page 35 Facts: P imported silver foxes from Canada, no natural return, so puts them in cage:

but still escape. D kills and skins one 15 miles away App: D would know not local, so taking someone else’s property, on notice;

shouldn’t wino Some effort by hunter should be made to find out who it is

B. Finders, Keepers?

Armory v. Delamarie Facts

o P is chimney sweep: found a jewel. Took it to D’s shop to find out what it was, apprentice took stones out and refused to give it back. P sued for conversion

Issueso 1. Does P have right to bring suito 2. Can P bring suit against this D

yes: agency ruleo 3. If yes to above: what is measure of damages

best quality value: bc D’s fault it’s lost. (rebuttable presumption): up to D to say it’s worth less

Or make D produce jewel Issue 1

o D converted chattel owned/possessed by Po D: used Third party defense: there may be a 3rd party with better rights than

D, but it’s not the P But bad for policy: reject this D

Encourage people to start snatching things that are possessed but not owned by another

Preservation of peace denigrated (increase altercation) Sometimes true owner can’t prove it: get a new true owner

opposed to snatching it aroundo Holding: P has ownership rights above everyone but the true owner

Policy 1. Don’t want ppl to do whatever if P not true owner

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protect peaceable possessor except against true owner reward finder: reintroducing stuff to society: easier for true

owner to findWinkfield

factso letter writers give to postmaster general (PMG)o PMG: hires boat to shipo The Winkfield, smashes into that boat: loses letterso PMG: sues Winkfieldo Winkfiel: Third party defense: not your mail, so not liable to you

Holding: postmaster wins: rule: Bailee can sue for property of bailer o Postmaster is Bailee: allow bailiee’s to sue on owner’s behalf

Makes ppl secure in trusting bailee: might not want to sue on their own (not worth it): so promote societal interest in that relationship

Bailment: rightful possession of someone else’s property temporarily

Hierarchy of property rights: 1.True owner2.Possessor3. Other possessors: less proper?

Trying to protect1.peacable possession2. true ownership: stronger claim to property than possession3.don’t want to penalize twice for wrongful action

hypo facts: P is finder, D took it from finder. P sued D, got value: but then true owner sues D

as well D gets caught twice Subrogation claim: true owner sues D. so D gets suit against the P:

o Explanation: when P found jewel, True Owner (TO) had right to sue P D subrogated true owner of right to sue P: so takes the place of P

when TO sues him D then has to sue P: to get his money back Imposes risk on D: the wrongdoer: risk P disappearing with the

money or the jewel Winkfield Style: true owner has to go find P to sue

o Relies on bailee/bailor relationship: D (wrongdoer) having once paid full damages to bailee, doesn’t have

to pay again to bailor (TO)o Imposes risk on true owner

But protects D from paying twice for single actBailment Relationship: Bailor (owner) hands over possession to bailee (thing holder)

Voluntary bailment relationship: owner selects baileeo Like post-master case: o Makes sense to inflict risk on true owner: they got to choose bailee

Finders case: finder is bailee for true owner, but not pickedo No prior connection: unfair to put risk on bailor

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o This is armory caseo And no issue unless true owner shows up: but less likely in this scenario

Thief v. thiefo Protect first thief from second thief: bc don’t encourage more thievery

Hannah v. Peel Facts: Hannah (soldier) staying in Peel’s house (but Peel didn’t posses the house, had

just bought it). Hannah found broach in the house. Gave the broach to the police. Police gave it to Peel, who sold it. Hannah suing peel for value. Peel D: found on his property: he has better right to it.

Rule: The finder of lost property has superior title against the owner of the land on which it was found

o RE: man possessess everything attached or under his land, not on the surface. o RA: no doubt brooch was lost property, Peel had neither prior possession or

possession of the premise when it was found Finder v. locus owner

finder: Armory: he has better right than everyone but true owner

locus owner: when you buy property: get everything on ito get constructive possessiono intent to exclude ppl from private home: protect that

(different if a public shop): but not here: bc Peel didn’t have house in possession

o don’t want to incentivize trespass Exp: adopt rule that encourages finders to be honest and report finds. Help TO find

their shit Conflict: between honoring expectation of D: owner of Locus, and rewarding honest

findero 3 determining factors

encourage productive land use Bridge Case: owners intent to exclude (public v. private place)

Bc peel never on property, more like shop owner case. So no control of who comes through, not as exclusive of ownership on your shit.

control of the property at the time: de facto control question: better claim for private owner: or if underground, etc

o don’t want to incentivize trespass: if Hannah was a trespasser, change the result. But bc Hannah there legitimately, then reward the honest finder

Bridges v. Hawkeswroth Facts

o Bridges (P finder) found notes on floor in Hawesworth (D, store owner) shop. P left with D, said return to TO if can. D keeps. P suing

Rule: finder is entitled above everyone but true ownero Shop owner doesn’t create exceptiono Might be different if it was embedded in the land

Different if home owner?

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o Maybe, but not for Peel: bc he had never taken possesssion

McAboy v. Medina P in D’s barbershop. Finds pocketbook. Asks D to return it after advertising. D refuses

to return ito Finder v. locus owner

Court: finds for D: although finder prevails against everyone except the true owner for lost property, mislaid property should go to the locus owner (distinguish from bridges)

Bad Explanation: Owner has constructive possession of mislaid property. Although finder gets possession, constructive possessor had possession first, so he has better right

o Flaw: that’s the same as Bridges Real distinction: lost v. mislaid property

o Award lost property to the finder: where found in common areao Award mislaid property to the owner: where forgotteno Not all jurisdictions do this

Exp:o In Bridges: property on the floor: in a common area: that’s lost property.

Normal Armory rule applieso This was on table: deliberately put there: Mislaid property: the TO will

probably know where he left it So awarding it to constructive possessor will help the TO retrace steps

and get it

Stafford Case Hired help finds. Award to boss: on his property. Constructive possession. Finder

already rewarded (in pay) for work, don’t need to protect.

4 goals in these cases (From MacAby v. Medina)1.Protecting the interests of the prior, peacable possessor2.Protecting the interests of the true owner3.Honoring the legitimate expectations of all relevant parties (including finders and locus

owners)4. Rewarding honest, especially in finders

C. Adverse Possession

Holding on to property until SoL runs: SoL doesn’t start until owner knew/should have known about adverse possessor. Mere possession becomes true ownership as a result of the expiration of the SoL

Requirements1. actual possession: actually had control over it

a. exp: earning theory: if not actually possessing, not using land more productively

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b. if not there: SoL hasn’t started2.open and notorious possession: there a lot of the time

a. sleeping theory: more continuous the easier it is for true owner to find outb. unfair to true owner if person is hiding on your land

3. continuous possession: stayed there continuouslya. earning theory: more continuous the more useful you’re making landb. sleeping theory: more continuous the easier for TO to find out

4. exclusive possession: you are the only trespasser: and excluding the ownera. if TO and adverse possessor there at the same time, then TO consented to

adverse possessor: therefore not a trespass—SoL hasn’t started if not trespassing

i. so SoL can’t run to make a claim5.Adverse/hostile possession:

a. Adverse: possession under claim or right/titleb. Hostile: against the owners claim

Policy Earning Theory: economic efficiency/porudcitivty: nobody is using it if can adverse

possess, so using it more productively: reward land productivity use Uncertainty: after a period of time, hard to tell who owner is: put an end to dispute

o Only leave dispute until SoL runso Bad for economy if don’t know TO

Sleeping theory: punish sleeping owner. But not the one that’s looking out for his shit

Discovery Rule: SoL doesn’t start until TO actually or should have known his property possessed and WHO possessed it

Van Valenburgh v. Lutz Facts: Lutz (adverse possessor) had been using road on land for 28 years. Van bought

the land, put up a fence across traveled way so Lutz couldn’t use. Lutz brought suit saying right to use was being interfered with.

Issue: was there adverse possession requirements? NY rule: requirements

o Actual occupation; continued occupation; under claim of title; exclusive Holding: no

o Time was fine: past SoL for time usedo Actual possession : NY rule: for actual possession (requirement): required

land be (1) protected by a substantial enclosure or (2) usually cultivated or improved

Missing this: so no adverse possession Did some gardening, but there was junk yard, no fence, no

actual possession requiremento Dissent: wording is “usually cultivated”: P did truck farming, this is good

enough If reasonable owner wouldn’t devote each inch to crop growth,

adverse possessor doesn’t have to Piece 2: garage poking over

o Fact: Garage built across land line too: do they get this land?

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o No Garage just poling over: not cliam of title because accidental Hostile/Adverse requirement: Must know trespassing on someone

else’s land and intend to take title (claim of title requirement of NY law)

Piece 3: shack: known not on their lando Court: if you occupy land you know you don’t own, don’t have a claim of

title Court has gone both ways: essentially eliminated adverse possession in NY

o If you think you’re on own land: no hostility—so cant be claiming titleo If you know you’re not on own land: no claim of title

This is Minority view

Adverse/Hostile Requirement 3 separate views on how to meet

o Meritorious approach (Georgia) (mistaken belief): one must enter upon land claiming to do in good faith, thinking it’s yours

Supported by earning theory, want to support productive use: doesn’t matter about sleeping

o Aggressive Trespass (literal interpretation): go on someone’s land to divest them of title and steal land for self

Literal interpretation of hostile: not earning/sleeping explanation o Majority Approach: There without true owner’s consent

State of mind is irrelevant. If there was consent=no hostility (SoL doesn’t start bc not

trespassing) Rebuttable: could say there by some other right:

lease/easement/consent

Does SoL start again when new owner? Lutz majority: the owners (van) couldn’t have claim earlier bc they weren’t the owners,

so must start SoL again Dissent: look at evidence of use

Color of title: claim of title based on document that is defective or invalid Some jurisdictions: in order to get adverse possession: need to enter under claim of title

o Explanation: meritorious approach Don’t reward trespassers Reward meritorious people: have paper saying it’s theres: just not

valido NY rule: didn’t require color of title: but helps: “claim of right means a

reasonable basis for the belief that the property belongs to the adverse possessor or property owner, as the can may be: about good faith. So color of title would help

o Some states: relax other requirements with color of titleo Some states: SoL shorter if color of title

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Howard v. Kunto Facts: 3 lots owned: the possessors of the houses were actually one off from their

deeds. Howard had deed occupied by Moyer, Moyer had deed occupied by Kunto (who knows who had howard’s deed). Howard and Moyer switched, giving Moyer correct deed and Howard deed to Kunto’s house. Howard brought suit against Kunto to assert his ownership

o Kunto had only moved in a year ago Issues

o 1. Was tacking of possession by subsequent occupants permitted if the land is occupied under a mistake of fact?

o 2. Can you win in adverse possession if use was limited to summer occupancy? (trial court said no)

Rule o 1. Yes: allowed tacking provided there was Privity between occupants

needed to tack the 1 year they were there with previous owners time to pass SoL (if prev. owners there enough time, they would have gotten it by adverse possession, thus making transfer full)

aggregate: exceeded 10 year SoL: so win Tacking:

o mere succession not enough (one person trespassing, then another person trespassing)

o tacking is allowed when mistake a boundary: grab an extra foot (like if garage pokes over)

boundry mistake allows tacking: bc same useo Here: more like boundary mistake

Rule: if have Privity: tacking is allowed def: reasonable connection between successive

occupants of real property they all believed they had title: color of title:

benefitting adverse possessors also: Kuntos good faith actors,

Howards knew what was up, trying to grab land

o 2. Yes: summer possession was common usage of land in the area: so it counts

test: if possessors there as long as and in the same manner as normal owner similarly situated: counts as continuous

Presumption of Consent: when true owner and adverse possessor both on disputed land only arises when on different parts of same land in dispute

o some jurisdictions: treat the same as if on same tract in one part: so no exclusivity, won’t give rise

o some jurisdictions: treat like perscriptive easement: trespasser may acquire right of use for limited purpose

so exclusivity in adverse possession won’t ariseo on large tract: if on one part: could be considered exclusive possession

could call it presumptive consent usually just give rise to prerscriptive easement

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o could also imagine: court would divide and sever land.

Tacking Problems: assume 10 year SoL1. facts: A enters onto blackakre ownen by O: 9 years later, B kicks A out through threat

a. rule: tacking only allowed with Privityb. so no tacking: O can kick A or B out as long as SoL didn’t runc. English courts: permit tacking in this way: encourages dispossession

i. Only focuses on neglect of true owner. So B could wil over O ii. But discourages peace and order. Whoever gets it gets it

iii. But maybe A could suit against B: prior possessor better than wrongful (armory)

d. American View: tacking issue heree. If A’s time is split between six months of B possessing: A doesn’t get B’s

time but can stick together time split: American law middle viewi. England: A would get it as soon as hits 10 years from his original

possession2.Facts: A enters O’s land in 1994. In 2005, O gives land to B with reversion to C. in

2010, who owns?a. A owns: b. Rule: no subsequent conveyance of property by true owner can affect adverse

possessor’s rights3.Facts: O, dies in 1995 leaving life estate to B and remainder in C. in 1996, A adversely

posses. In 2010: B dies. a. C ownsb. A was trespassing on B’s life estate. In 2005: A successfully took B’s life

estate. But when B dies, that right gone, C owns. So in 2010, A has only adversely possessed C’s estate for 5 years, C still owns

c. Difference from problem 2: adverse possession began after the will. In 2006 A adversely possessed B’s life estate. A took B’s life estate, but doesn’t adversely posses C’s reversion.

Disability: often disability statutes. Extend SoL if disability. Ex. if SoL runs for the 21 years, if person trying to bring trespass case (fighting the

adverse possession), can get extra 10 years after disability is removed. Disability examples: unsound mind, imprisoned, minor

Disability doesn’t matter unless it existed at time when CoA accrued (CoA (trespass) accrues when it begins): think about as if owner is insane/minor/jailed when trespass began

Hypotheticals: Facts: O is owner in 1984, A adversely enters in 1984. Age of majority is 18

o 1. O is insane in 1984. O dies insane and intestate in 2007 A. O’s heir, H, is under no disability in 2007

Then H owns (can bring action) until 2017, after that time A owns

B. O’s heir, H, is six years old in 2007 Same as above. H’s disability doesn’t matter, just the owner H wasn’t one who could bring action. O is. H just standing in

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his shoeso 2. O has no disability in 1984. O dies intestate in 2002. O’s heir, H, is two

years old in 2002. A owns after 21 year SoL. No extension bc O didn’t have disability.

o 3. O is 5 years old in 1984. In 1994, O becomes insane, and dies intestate in 2009. O’d heir, H, is under no disability.

When does adverse possessor acquire title? 2007. Because O turned 18 in 1997. Gets 10 years from there

to bring action, even though SoL would have run in 2005. So A gets title in 2007. Disabilities don’t tack

so in this case: if the disability isn’t cured (or the person dies, curing the disability) for 50 years, you get an extra 10 years

D. Acquisition by Gift

Elements1. intentional

a. oral testimonyb. or delivery with intent to transferc. for irrevocable present interest

2. deliverya. maybe nor manageable bc of size: so symbolic can workb. traditional: if can be handed over, must do itc. modern: less strict: steps taken by donor to effect transfer deemed by donor as

sufficient to pass (thought it would pass)d. cali+others: symbolic in writing always fine

3. acceptancea. presumed unless expressly refused

Problems1.O leaves her ring at A’s place while visiting.

a. A telephones O, says you left your ring. O says keep it as a gifti. Seems gift is good. Only issue is delivery didn’t happen concurrently,

but courts wont worry if delivery before intent. Because stupid process

b. A gives the ring back to O at dinner, O says you keep it, gives it back. Doesn’t fit so O says I’ll keep it till we can size it. O leaves with it and gets hit by a car.

i. Gift is good again. Had all three elements, then O just held on to it (she is bailiee)

c. At dinner above: O says I promise to leave it to you. Probably not good, bc it’s a promise to will. Needs consideration or will requirements

i. Traditional rule: gift promises are unenforceable for lack of consideration

2.O writes A a check. Before A cashes check, O dies. a. Some courts: Not a valid gift: could have cancelled the check well alive. No

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delivery of the money, just delivery of a piece of paper. b. Some courts: attempted transfer of money: process of doing check promotes

the functions of delivery requirement: so enforcei. Unless revocation actually made

c. Majority: death revokes effectiveness of check3.O is wearing watch. Hands A a paper: saying I give you this wrist watch.

a. Traditional: if practicable to hand over object, must do it. b. Majority: when actual delivery not difficult/impossible, symbolic delivery not

goodc. Cali: would be fine

4.O and A share safety deposit box. O handed A four bonds, saying I want to give them to you. A puts them in the box. O adds more stuff to box, and leaves note saying it’s all a gift to A when O dies.

a. A only gets the original bondsb. The rest was not gift, no delivery. And note doesn’t come into affect after O

dies, not valid will i. Plus he could have taken stuff back. No delivery

Newman v. Bost Facts: Bost is dying, gives key to Newman. Told her to take them and keep them and

have everything in the house. One of the keys unlocked drawer with insurance policy. Rule: gift causa mortis: made in contemplation and expectation of immediate death:

requirementso 1. An intention to make a gift

clear donor knew what he was doing and he intended to make gifto 2. Actual delivery of the gift

required when articles are present and capable of manual delivery constructive delivery: only good when things not present or

incapable of manual delivery symbolic delivery: usually written document describing: doesn’t fit

here holding: policies in the drawer were deliverable, so not good gift. The furniture and

other stuff the keys opened were gift, bc not capable of being moved so constructive delivery was good for stuff not movable that key

opened. Insurance policies were movable, so not good gift key was constructive: so gets stuff key unlocks things key didn’t open, she doesn’t get

o she also got other furniture put into her room earlier: there was gift inter vivos

fulfilled all requirements Policy: courts don’t like gift causa mortis: bc undercut wills and policies that surround

them (preventing fraud). And not in best state of mind. So narrow the gift causa mortis

Gruen v. Gruen Facts: father wrote P a letter saying giving painting to his son for his birthday. But

father wanted to retain possession o fit for his lifetime. Two other letters exist declaring intent. Son never took possession, but sought after death.

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Issue: is this valid inter vivos gift? Rule: inter vivos gift requires intent, delivery, and acceptance. The letters count as

constructive delivery. Can also maintain life estate in the gift, and delivery would frustrate that purpose, so allow constructive delivery.

o Transfer If was only transferring ownership at death: then would need will. But

was a clear present transfer Test: whether the giver intended the gift to have no effect until after

the giver’s death, or whether he intended to transfer a present interest Transfer was irrevocable once made: giver turned to life estate

holdero Delivery: physical or constructive or symbolic delivery sufficient to divest

donor of dominion and control of property Avoid mistakes/fraudulent claims. Use what circumstances would reasonably permit. Intended to retain

interest, stupid to give and give back. o Acceptance: presumed

Policy: it’s stupid to require symbolic handing back and forth when such clear intent and constructive delivery

Once a gift is made: it’s irrevocable: if was revocable gift: court may not enforce

II. ESTATES IN LAND AND FUTURE INTERESTS

Intestate succession laws: determine next of kin. When someone dies, who gets it absent will. Who is heirs?

No living person has heirs, only determine once they die Escheat: no heirs: land goes to state

Words of purchase and words of limitation Ex. “ To A and his heirs”

o To A=words of purchase: who has interesto And his heirs=words of limitation. Do not describe ownership, describe

nature of interest in owner Each possessory estate has different words of limitation. “and his

heirs” is fee simple absolute

A. Possessory Estates1. Fee Simple Absolute2. Fee Tail3. Life Estates4. Fee Simple determinable5. Fee Simple Subject to condition Subsequent

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6. Fee Simple subject to executory limitation

1. Fee Simple Absolute: all rights: whole bundle of sticks1. x is entitled to present possession2. x is entitled to future possession until he dies3. x’s heirs entitled to blackacre immediately upon X’s death

Alienable: can sell while aliveo Defeat devisees and heirs right

Right to devise: can give in will to whoever he wants. Transfer occurs at deatho Defeat heirs

Descendable: inheritable to heirs: by intestate succession rules Right to use Right to exclude Continues forever, but not absolute ownership (subject to other rules: government,

zoning, police power, escheats to state, other private owners) Magic words needed: “and his heirs” O sells to blackacre: only sells life estate at common law On exam: words of limitation are necessary to transfer a fee simple absolute How FSA be limited

o Eminent domaino State police powerso Private land use actions (easement)o Other land owners through judicial decisions o State can limit (if A dies with out airs, goes to state)

2. Fee Tail: O owns blackacre in fee tail: unconditioned present possessory interest Right to present possession Right to future possession until death But land can only go to direct lineal descendants (sons, daughters, grandchildren, not

nieces and nephews): so is descendable o Would revert when line runs out

Not a devisable interest Alienable: but can only sell your interest. So O can only sell for O’s lifetime

o “life estate pur outré vie”: life estate measured by someone else magic words of limitation: O owns land in fee simple absolute.

o To make fee tail: “O to A and the heirs of his body” To a=words of purchase And the heirs of his body=words of limitation: nature of ownership

and how it may descend When direct line runs out: it expires: must be a reversion somewhere Split in authority

o Some states: any attempt to create a fee tail is interpreted as fee simple absolute (bc repubnance for aristorcharcy)

o Majority: (MA, VA, DC): statute: if use fee tail language: then A acquires life estate, and children get a remainder

A could convey life estate to someone else Children get remainder in fee simple absolute

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This is fee tail, but only for one generationo Most fee tails eliminated by statute: but statutes don’t apply backward:

common law rule governs if estate created before statute Fight between policy in alienability of land vs intent of parties

Can do special form fee tailo O to A and the heris of his body by W

W is kid, only goes to that heir and her children O to A and the male heirs of his body (fee tail male), female

equivilant

3. Life Estate: O owns blackacre in life estate: unconditioned possessory interest O is entitled to present possession O is entitled to future possession until O’s death O’s heirs entitled to nothing by O’s ownership O may alienate only the right to posses during O’s life: estate per outré ve. Magic words: “To A for Life”

o To A= words of purchaseo For life=words of limitation: the only estate he’s got

Doctrine of waste: limits the life tenants’ use of land: court balance competing interests

Not inheritable (descendable) Not devisable Alienable: becomes Life estate pur autre vie: is inheritable and devisable: but only as

long as the life it’s on is still in tact. After that, will revert o So the pur autre vie: can sell, devise, descend, but only until measuring life

ends

Effectuate intent of party When conveyance ambigious: look to context. When that doesn’t work: look to rules of

interpretation/construction: Rules of construcitono 1. Unless clear contrary intention: presumption is will designated to convey

testator’s entire interest in property (presume conveyance of fee simple absolute)

fee simple absolute is the default: if ambiguous: then it’s FSA at common law: life estate was presumed

o 2. Interpret wills that don’t create partial intestacy basically, don’t want part of estate to go by will, and other part to go

by other rules (intestate succession laws)

White v. Brown facts: woman gave land in weird conveyance: didn’t use magic language issue: pass life estate or FSA?

o Words were ambiguouso Rule: rebuttable presumption that it goes in fsa

2 ways to do it 1. Ascertain the intent of the dessodent based on wholre

reasonable instrument 2. Taking reasonable person approach

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if entire estate not conveyed, must say it explicitly presumption of conveyance in FSA preference to interpret wills that don’t create partial succession

applied above two rules called it fee simple absolute:

o even though will said twice not to be sold court: still can sell: bc public policies disfavor restraints on alienation

o disabling and forfeiture disabling: you can’t do this forfeitrue: if try to do this, you’ll lose it

o these almost always held invalid: prefer free market efficiency. If B willing to buy from A for price: B values more: net social gain

will said to have and live in. FSA presumption. But will says can’t sell: against FSA: but that hurts preventing aristocracy and non-alienation of land in free market

Woodrick v. Wood facts: D has life estate, P has future interest in it. D wants to destroy barn, P wants to

stop ito ownership is split between present possessory interest and future interest

holdero App: destroying barn increases value: no waste

Waste: A should not be able to use land in matter that unreasonably interferes with the expectation of B

o So P can seek injunctiono Issue: Who can bring it?

Traditionally: holders of following future interests Reversion Holders of vested remainder in fee simple absolute Landlords whose tenants holds a term of years

Today Holdse ro fany future interest can sue holder of any present

possessory estate in waste Less likely future interest will vest/become possessory, less

likely that P will prevail And cotenants can sue each other: look ahead

o Issue 2: What counts as waste? Even improvements (ammeliative waste): like building new

house: can bring value Common law: each piece of land unique, can’t be replicated,

any change is injury to future interest holder Under majority rule: need substantial punier damage required

to constitute waste (so life tenant can do whatever as long as doesn’t damage value)

o Here: removal of barn: doesn’t decrease property value: no waste But: D still had to pay the P: defendant wanted to not have barn, find

bc you’re in possession: but still have to pay plaintiff (value of the barn)

o Possible relief?

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Damages: amount present possessors activities reduced value of the P’s interest

Injunction to prevent future waste Any profits present possessor wrongfully obtained form the activities

that amounted to waste In extreme cases: forfeiture of present possessor estate and

acceleration of future interest

Doctrine of Waste Cont. England: any physical alteration to land:

Doctrine of waste: limits life tenants use of land but flexible: 1. permits court to balance competing interest such as (balance

these to see if okay)o 1. nature of property interest, o 2. conduct in question, o 3. and remedy sough

o affirmative v. permissive waste affirmative waste: voluntary injurious acts that substantially decrease

property value exceptions: commercial beneficial activity (mineral extraction,

timber): technically affirmative waste but can help against being wasteful

permissive waste: negligence, failing to take reasonable care

defeasible fees

4. Fee Simple Determinable: X owns fee simple determinable interest in blackacre Everything like fee simple absolute: except: subject to self-executing condition If condition broken: automatically ends X’s rights and reverts them Ex. “O conveys to A and his heirs unless A opens a bar on property”

o As soon as A opens a bar, A’s right to posses endso “so long”

Attributeso Alienableo Devisableo Inheritable (descendable)

But condition remains on it Magic words: “O conveys to A and his heirs, so long as (or “unless” “until” “so

long”) land is not used for gambling) Condition is built into granting clause: makes it Fee simple

determinable, if separate clause, fee subject to condition subsequent o “and his heirs” still required at common law to create the fee simpleo today, not necessary, bc opposite presumption o so long=words of limitation

possibility of reverter: is assumed in the conveyer (O): so possibility of reverter always created with fee simple determinable

o attributes of possibility of reverter

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at common law not alienable not devisable but is descendable

o if no heirs, escheats to the stateo if reverts: goes back to FSA

breakdowno ends automatically upon occurrence of prohibited conditiono always creates possibility of reverter

which can only be created for grantor, not a grantee

5. Fee Simple on Condition Subsequent: “O to A and his heirs, but if the land is used for gambling, O may reenter and reclaim the land”

if condition messed with: creates right of entry, not possibility of revertero don’t get back automaticallyo need affirmative action

difference: between this and determinableo condition is separate clause then granting clause

determinable; “O to A so long as land is claused” condition subsequent: “O to A, but if land is ever not used as farming,

then back to O.” if said: then to C: doesn’t work. Bc can’t create any interest in

third party other than remainder before Statute of uses. So this wouldn’t work. Would end up being executory interest in C.

attributeso alienableo devisableo descendable

but condition stays right to reentry: same attributes as reverter

o attributes not alienable not devisable but is descendable (inheritable)

magic wordso “but if… then”o “provided that if… then”o “on the condition that if… then”

pre 1536: this wouldn’t work: “O to A and his heirs as long as the land is not used for gambling, but if it is, then to B and his heirs”

o common law: can’t create future determinable ot 3rd party: bc that interest was not alienable or devisable. So just cut everything after the but.

difference between Fee simple determinable and Fee simple on Condition Subsequent

determinable: self executing reversion condition subsequent: creates right to reenter or reclaim land SoL effect: SoL begins for determinable as soon as condition broken (because then get

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ejectment right). But not until assert right to reenter for condition subsequent (because only once assert right can eject)

Mahrenholz v. County Board of School Trustees Land given to school on some condition, broken, given in another way, weird shit

happened Rule of construction: if deed can be read as either fee simple determinable or on

condition subsequent, read it as fee simple on condition subsequento Exp: bc want as little restrictions on land as possible

When condition is built into granting clause: looks like fee simple determinable

If grant, (comma) then condition, seems more like fee simple on condition subsequent

Mattered here: bc if reversion not automatic, the grant to the P wouldn’t have meant anything (bc possibility of reverter not alienable at common law or in Ill.). if was condition subsequent, could give that to school, merging the interest: creating fee simple absolute

But bc condition was in fee simple determinable (in the granting clause: “only remanded”): reversion happened automatically, so conveyance to P was good

Laches doctrine: if delay in right of entry to prejudice of holder of fee simple on condition subsequent, might not get the right in equity court

Especially in case where delay right of reentry until holder improves land

6. Fee Simple Subject to Executory Limitation: only makes sense when look at executory limitation

B. Future Interests1. Reverter- Follows a fee tail or a life estate2. possibility of reverter- follows a FSD3. Right to entry—Follows FSCS4. vested remainder5. contingent remainder6. executory interest

Future interest Alienability Devisability DescendabilityReversion(life estate/fee tail)

Yes Yes yes

Possibility of a reverter

No No Yes

Right to entry/ power of termination

No No Yes

Vested remainder Yes Yes Yes

Contingent Remainder No Yes Yes-

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Executory interest No Yes Yes

Future Interest in Grantee

1. . Reversion: “O to A for life” Future interest in the grantor O conveyed away life estate, Law assumes O wanted to retain rest: this is reversion Same if conveyance is fee tail, or term of years Transforms back to FSA when grantor gets it back Definitions

o 1. A future interest implied by the law in a grantor following a fee tail, a life estate, or a term of years, If the grantor says nothing about who gets the land following the expiration of the fee tail, life estate, or term of years

o 2. If O, owning a fee simple absolute, creates a fee tail, a life estate, or a term of years, and does not at the same time convey away a vested remainder in fee simple absolute, O has a reversion

o 3. (over simplified) the interest remaining in the grantor, or in the successor in interest of a testator, who transfers a vested estate of a lesser quantum that that of the vested estate which he has

attributeso alienableo devisableo desendible

2. Possibility of Reverter: created by Fee Simple Determinable, in the grantor

3. Right of entry: created by fee simple on condition subsequent, in the grantor

Future interest in Third Parties

4/5. Remainder: future interest in a grantee definition: future interest in grantee following an expireable estate

o 1. Future interesto 2. Created in a granteeo 3. That has following three characteristics

A. Must follow an expireable estate (life estate, fee tail, term of years) B. Must be capable of taking effect immediately upon expiration of

proceeding expireable estate as soon as life estate ends, must be able to be transformed into

present possessory interest C. Can’t take effect before expiration of proceeding expireable estate

Rule of construction: pre 1536: condition that could be read to be verifiable at A’s death should be read that way

o But won’t go against unambiguous grant Ex. O to A for life, then if B marries C either before or after A’s death, to B and his

heirs

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o Not valid: bc condition may not vest until after expiration of estate Common law courts: “but if” seemed to be impermissible cut off. “if” signals test at

end of possessory estate

4. Vested Remainder: like a reversion but for a grantee Remainder is vested if:

o 1. It’s holder is a person who is both born and ascertainable ; and (alive and can tell who it is at the time of conveyance)

o 2. There is no condition other than the expiration of the proceeding estate (life estate, term of years, fee tail) which must be met before the future interest may become possessory

B just waiting for possessory estate to end Get vested remainder in fee simple absolute

Ex.o “O to A for life, then to B and her heirs”

characteristicso alienableo devisable o discendable

bad ex: “O to A for life, then to B and her heirs if B survives Ao B only gets it if he is alive: so missed 2. There’s a further condition

Don’t have reversion in vested remainder Ex. : “O to A for life, then to A’s children and their heirs”

o A has no child Then conditioned remainder: bc held by unborn person

o A has a child Vested remainder subject to open: the result o f a conveyance of a

remainder to a class of ppl, of which at least one member is in existence and has met any condition precedent imposed on the class

Vested, subject to open Bc one child makes remainder vested But more children could come about

Ex. “O to A for life, then to B’s children and their heirs. B has 2 children, X and Y. then A dies. Then B has a third child

o X and Y split FSAo Z gets nothing: Class closes when A dieso Anyone meeting condition after class closing (possessory estate ending.

Future interest becoming possessory) is not includedo Rule of convenience: class closes as soon as any member of the class is

entitled to demand present possession of his or her share so when A dies, X and Y entitled to claim share, class closes, Z not

part of it ex: “O to A for life, then to B’s children who reach 21 and their heirs. B has 2 children

(X age 25; Y age 10). A dies. Then B has two more children, S and D. Then Y turns 21

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o S and D: get nothing. Class closes upon A’s deatho X: got a vested remainder subject to open. When A died, that became present

possessory in FSA. o Y: split of authority. Issue: does rule of convenience require Y to just be alive

to be in? or must he also meet the second condition (being 21)? Depends on policy Intent: Y was alive when conveyance made, O probably knew Y,

wanted to share benefit: so Y gets half of FSA when he turns 21 Certainty (point of rule of convenience): uncertainty (more ppl

gaining ownership rights) is disincentive to invest. Forcing condition met as well as being alive: makes estate more certain

Glicksman: probably Y would get nothing Vested Remainder Subject to Open: someone’s interest is vested, but more people

could joino no version, bc it’s vestedo O to A for life, then to A’s children.” A has 1 kido Class closes at end of A’s life : when no more people can join

5. Contingent Remainder: remainder (future interest in grantee following expireable estate, capable of taking effect immediately upon expiration of estate and can’t take effect before expiration of proceeding estate) requirements, but not vested.

Possible ways of getting it: (just not vested for whatever reason)o 1. If held by a person who is unborn or o 3. unascertainable; oro 2. It is subject to a condition (other than expiration of the preceding present

possessory estate) which must be satisfied before its holder is entitled to come into possession

o must always be future interest following contingent remainder: reversion ex. “O to A for life, then to B and her heirs if B survives A

o contingent: bc a second conditiono but at A’s death, the future interest vests

happens at same time as present possessory interest ending, but by wording it’s contingent

ex 2: O to A for life, then to B and her heirs if B reaches 21. While A is alive, B reaches 21

o B’s interest vests when he turns 21 Ex 3. O to A for life, then to B and her heirs if B survives A. B dies before A

o When B dies, impossible to meet condition: so his interest is destroyedo So when A dies, goes back to O in reversion (reversion always created with

contingent remainders)o So at conveyance: there was actually present possessory interest (A) and two

future interests B’s contingent remainder O’s reversion

Rule: there is always a future interest following contingent remainder. If grant is silent, implied reversion in grantor (O).

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Once condition is met: turns into a vested remainder Trick: if survivorship condition: then remainder is contingent: therefore not alienable.

Also not devisible or descendable: because those happen once someone is dead. Can’t get the interest if dead when survivorship condition on it

Ex. “O to A for life, then to B and his heirs if B ever reaches age 21, but if B never reaches age 21, then to C and his heirs.

o 4 interests created A: life estate B: contingent remainder: must reach 21, further condition

Vests when B reaches 21 (destroying C’s interest) C: contingent remainder. Condition on B never reaching 21 (he’s

gotta die) So vests when B dies, otherwise still possible for B to reach 21 Called a “alternative contingent remainder”

O: reversion in FSAo Possible neither of these conditions work out: so goes back to O

A dies before B is 18 Goes back to O: neither remainder has vested Common law: this destroys B and C’s interests

Or if A loses life estate for whatever reason: before B is 21 but still alive: goes back to O

Ex 2: “O to A for life, then if B marries C, to B and his heirso A. While A is still alive, B marries C

B marrying C: condition met: remainder vests When contingent remainder vests, implied reversion ends

So A keeps life estate; B gets vested remainder in FSAo B. while A and B are both alive, and B is still unmarried, C dies

B’s contingent remainder is destroyed: bc it became impossible to meet condition

So A retains life estate, O keeps reversion, B’s remainder gone Ex 3: “O to A for life, then to B’s heirs and their heirs”

o Contingent remainder in B’s heirs. Contingent because while B is alive, B has no heirs. (remember: heirs only after someone dies: so while alive, they are unascertainable, so can’t have vested interest)

Remainder held by unascertainable people: so contingento If B dies: intestate succession laws to see who heir is. That person gets vested

remainder (but only when B dies)o If A dies before B: then reversion to O

Destruction of Contingent Remainder (once destroyed, never comes back) (disjunctive) Contingent remainder is destroyed if…

o 1. it becomes impossible for the holder of a remainder to meet an applicable condition precedent

ex. “O to A for life, then to B and his heirs if B marries C. C dies before A”

can’t vest in timeo 2. If its holder fails to meet an applicable condition precedent on time

ex. “O to A for life, then to B and his heirs if B reaches 21.” A dies, B is 19

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reversion to O. B loses remainder. basically failure to vest in time

o 3. By merger ex. “O to A for life, then to B and her heirs”. A conveys her life estate

to B B has life estate and remainder after: merge to FSA

Rule of destructibility: contingent remainders are destroyed if the holder of the supporting estate (the vested estate that comes before the contingent remainder) acquires the next vested estate after the contingent remainder, or vice versa.

o Ex1 . “O to A for life, then to the first child of A who reaches 21 and that

child’s heirs” A has child, B (not 21) A: life estate B: contingent remainder. bc not yet 21, hasn’t met conditions

o It’s also open to other ppl: A could have another kid that reaches 21 first, B could die, etc etc

O: reversion Then: O sells her reversion to A

Rule of destructibility. A has supporting estate (the life estate) and the next vested estate after the contingent remainder (the reversion) merge into FSA

So A gets FSA: destroys B’s contingent remainder OR: A sells life estate to O

Same thing: rule of destructibility Policy: make land alienable: prefer FSA

o Ex 2 “O to A for life, then to B and her heirs if B is married, but if B is

single, then to C and her heirs. The Exception to the Destructibility Rule: there is no merger and destruction of a

contingent remainder if the vested estate that precedes the contingent remainder and the next vested estate that follows the contingent remainder were created in the same person simultaneously with the creation of the contingent remainder

o Ex. O devices (gives at death) Blackacre to A for life, then to A’s first

child and that child’s heirs A. at O’s death, A has no children

A’s first child has contingent remainder in fee simple absoluteo Contingent: bc unborn at the time

Reversion in O B. O’s will is silent concerning the disposition of the rest of O’s

estate, including O’s reversion. A is O’s sole heir. So, conveyance was device (at death): A get’s life estate and

reversion. A’s unborn children: get contingent remainder You would think that A’s interest would merge: creating FSA

and destroying contingent remainder BUT: Exception to rule of distructability

o A’s unborn children’s contingent remainder doesn’t

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get destroyed: bc A’s life estate and reversion created simultaneously with contingent remainder. If A doesn’t have a kid, contingent remainder never vests. If A does have a kid, remainder vests.

o Reversion remains with O: but was passed to A, so remains there

o Explanation: Expireable estate, reversion, and contingent remainder must all happen at the same time for exception to apply

It’s the intent of the conveyer: otherwise why would say this stuff? The Exception to the Exception (really it’s just when the exception doesn’t apply:

following a conveyance that contains a contingent remainder that was not destroyed as a result of the exception to the destructibility rule, if the vested estates that precede and follow the contingent remainder are conveyed to the same person the intervening contingent remainder is destroyed

o Explanation: sale of vested estate that proceeds the contingent remainder (the life estate) and the vested estate that follows (the remainder) to X, so X’s interests not created at same time as holder of contingent remainder. Therefore, exception to the rule doesn’t apply. X’s interests merge: gets FSA

o Ex. “O devices (gives at death) to A for life, then to A’s first child and

that child’s heirs” .(same as above) A has life estate and reversion: (BC A is O’s heir, got the

reversion) A’s unborn child: has contingent remainder

A conveys her life estate and her reversion to X Then X has vested estate that proceeds and follows contingent

remainder: got it at a different time than the contingent remainder (A’s unborn child got it when O died): so exception doesn’t apply

X gets FSA Could use straw man to get rid of contingent remainder

A has a kid before above Then remainder vests, rule of destructibility is gone

Vesting: once remainder is vested: then there is no more reversion: so rule of destructibility is gone

Alternative Contingent Remainders: X has a contingent remainder, X’s remainder is followed immideiently by Y’s future interest (also a remainder) which becomes possessory in exact circumstances when X’s interest doesn’t become possessory

o ex. O to A for life, then if B marries C, to B and his heirs, but if not, to D and his heirs

B and D have alternative contingent remainders. “but if” usually says not remainder. but here: if the “but if” is to

introduce an alternative contingent remainder

1536: statute of uses: allow future interests that don’t meet remainder requirements Pre 1536: no future interest could be created in favor of a transferee if the interest could

operate to cut short a free-hold estate. o Had to meet conditions of remainder or would be tossed out

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6. Executory interest Definitions

o 1. An Executory interest is a future interest in a grantee which is neither a vested nor a contingent remainder

o 2. An excecutory interest is a future interest in a grantee which connot take effect upon the natural expiration of the preceding estate

o 3. an executory interest is a future interest in a grantee that must, in order to become possessory:

a. divest or cut short some interest in another grantee (a shifting executory interest) or

b. divest the grantor in the future (a springing executory interest)o 4. An executory interest is a future interest in grantees that would have been

void at law before the adoption of the Statute of Uses in 1536o basically test if future interest is a remainder. if not, then it’s executory

remainder if follows expireable estate (fee tail, life estate, term if years) Must be capable of taking effect immediately upon expiration

of proceeding expireable estate Can’t take effect before expiration of proceeding expireable

estate If not: then it’s executory interest

exampleso 1. “O to A and her heirs when A gets married.” Five years after the grant, A

gets married Pre 1536: O keeps FSA. A gets nothing: Bc only future interests in

grantee was remainder After 1546:

A has executory interest (springing) (doesn’t follow 1 of the 3 expireable estates allowed: life estate, fee tail, term of years)

O has Fee simple subject to executory limitationo 2. O to A for life, then, one day after A’s death, to B and her heirs

pre 1536: A life estate, B has nothing. O has reversion post 1536

A has life estate O has reversion: reversion is fee simple subject to executory

limitation (will get it for 1 day) B has executory interest: springs out of O’s 1 day reversion

o 3. O to A and her heirs as long as the land is farmed, then to B and her heirs pre 1536: B gets nothing, bc followed a fee simple determinable (or

on condition subsequent), not expireable estate post 1536:

B has executory interest: gets shifting executory interest in fee simple absolute

A: fee simple subject to executory limitation Springing v. Shifting executory Interest

o Springing executory interest: a future interest in a grantee which transfers the right to possession form the grantor to a grantee upon the occurrence of a

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designated evento Shifting executory interest: a future interest in a grantee which shifts the

right to possession from one grantee to another, cutting short the first grantee’s right to possession before the natural termination of that grantee’s estate

o Focus on who’s present possession is cut short: if grantor’s: then springing. If another grantee’s: then shifting

Exampleso 1. O to A for life, but if B climbs mount Everest, tehn to B and his heirs

A has life estate subject to executory interest B has shifting executory interest (bc could happen before natural end

of possessory estate): when/if climbs everst: gets it O has reversion If O or A sells their interest: then executory condition goes with it

o 2. “O to A for life, then to B and his heirs, but if B ever uses the land for a tavern, then to C and his heirs

A: life estate B: vested remainder subject to executory interest

Vested: bc no condition precedent Once A dies: gets a Fee simple subject to executory limitation

C: executory interest. Shifting out of B’s fee simple subject to executory limitation

Rule (for our purposes): executory interest can only result in a fee simple absolute Divesting Remainder: a vested future interest held by one person that is subject to

being cut off by a future interest held by another persono Examples

1. “O to A for life, then to B and his heirs, but if A ever uses the land for a tavern, then to C and his heirs”

A has life estate subject to executory interest B has vested remainder, subject to divestment, in fee simple

absolute (bc if A uses the land for a tavern, his vested remainder will be cut off)

C has shifting executory interest o Vested remainder, subject to divestment, in fee simple absolute: (above)

when B might lose his remainder while it is still a future interesto Vested remainder in fee simple on executory limitation (not above bc “if A

ever uses for a tavern”, once A is gone, can’t use as a tavern): if B might lose the interest only after it has become a present possessory estate

Example: “O to A for life, then to B and his heirs, but if B ever uses the land for a tavern, then to C and his heirs”

A has life estate B has vested remainder in fee simple absolute on executory

limitation C has executory interest in fee simple absolute

o Can combine vested remainder, subject to divestment and vested remainder in fee simple absolute on executory limitation

Example: “O to A for life, then to B and his heirs, but if B dies under 21, then to C and his heirs”

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B: has vested interest: bc doesn’t have to reach 21 before getting it but…

o B could lose before he gets present possession (dies before A): so: vested remainder, subject to divestment

o B could also lose after he gets present possession (A dies, but then B dies before 21)

o So it’s both: but call both a vested remainder, subject to divestment, in fee simple absolute

Distinguishing between vested remainders subject to divestment and contingent remainders A remainder is contingent if the conditional elements is incorporated into the

language of the conveyance that creates the remainder A remainder is vested if the conditional elements appears in a separate divesting

clause that appears after the conveyance of a vested interest Explanation

o Whether a remainder is vested or contingent depends upon the language employed. If the conditional element is incorporated into the description of, or into the gift to, the reamainderman, then the remainder is contingent. BUT if, after the words giving a vested interest, a clause is added divesting it, the remainder is vested (but subject to divestment)

Explanation: if conveyance is without a condition clause, then a clause is added adding a condition, it’s going to be a vested interest subject to divestment

Exampleso 1. “O to A for life, then to B and her heirs if B climbs Mt. Everest”

condition is built into clause: B has contingent remaindero 2. “O to A for life, then to C and her heirs, but if B climbs Mt. Everest, then

to B and her heirs” condition after clause: so B has vested remainder, subject to

divestment, in fee simple absoluteo 3. “O to A for life, then to B and her heirs if B has climbed Mt. Everest, but if

B hasn’t, then to C and her heirs” B and C get alternative contingent remainders: bc built in to giving

clause

Attack Plan for vested/contingent remainders and executory interest1. Check if it qualifies as a remainder

a. future interestb. in a grantee c. that meets following conditions

i. following expireable estateii. becomes take effect immediately at end of expireable estate

iii. won’t cut a present possessory interest short2. if yes: is it vested or contingent remainder?

a. vested: if no condition in same clause as language of the conveyance that creates the remainder

b. contingent: if conditional element incorporated in the language of the conveyance that creates the remainder

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3. if no: then it’s executory interest significance of above

o contingent remainders: disappear if condition is not satisfied by end of expireable estate (life estate, term of years, fee tail)

o executory interest does not disappear when condition not met by end of present possessory estate

but will disappear if the condition becomes impossible examples

o 1. “O to A for life, then to B and his heirs when B becomes 21” A has life estate O gets reversion Seems B could have contingent remainder or executory interest

Contingent remainder: B must turn 21 before A dies for his interest to vest. Get estate when A dies then

Executory interest: B gets it when he turns 21, regardless of if A died when he was 18.

o Rule: when interest can be interpreted as contingent remainder or executory interest, then call it contingent remainder**below

The Rule of Purefoy v. Rogers: If grantee’s future interest can possibly take effect as a remainder, when viewed from the time of the grant, we will treat it as a contingent remainder, and not as an executory interest

o So above: “O to A for life, then to B and his heirs when B becomes 21” Can take effect as a remainder: B turns 21 before A dies. A dies. B

gets fee simple absolute So treat as contingent remainder

o Reasoning Courts like alienability, speculative interests impair marketability Want to get rid of as many conditional interests as possible So treating as contingent remainder is preferable to get rid of it, if

doesn’t vest in time So to protect from this: do the following:

o “O to A for life, then to B and his heirs if B reaches 21, no sooner than one day after A’s death”

A has life estate B has executory interest (bc doesn’t become possessory immediately

after expireable possessory estate) O has reversion So when A dies, one day reversion to O: executory interest doesn’t

end for failure to vest in time: B gets it back 1 day later (if already 21) or when turns 21

The Rule in Shelly’s Case (eliminated in almost all US jurisdictions)o When o 1. One instrumento 2. Creates a life estate in land in A, ando 3. Purports to create a remainder in persons described as A’s heirs (or the

heirs of A’s body) and

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o 4. The life estate and remainder are both legal or both equitable (basically both created by will or both by intestate succession laws)

o THEN: the remainder becomes a remainder in fee simple (or fee tail if heirs of their body used) in A.

o Reasoning Helps tax transactions, helps alienability, eliminates contingent future

interests: but defeats intent of O to give A’s heirs future interest and not give A FSA

o Example “O to A for life, then to A’s heirs and their heirs” (39)

A gets life estate A’s heirs get remainder: it’s contingent bc A’s heirs are

unascertainable But bc of rule in Shelly’s case: A gets the remainder in fee

simple. So A’s interest merge: get fee simple absolute

o To get around “O to A for life, then, one day after A’s death. To A’s heirs and their

heirs” (40) A gets life estate A’s heirs dont get contingent remainder: bc doesn’t meet

conditiono Instead they get executory interest: doesn’t disappear

for failure to vest in time O gets reversion in fee simple subject to executory limitation

Doctrine of Worthier Title (gone in most jurisdictions as well) Elements (find these in nathalie’s book)

o Where o 1. There is an inter vivos conveyance of land by a grantor to a person,o 2. With a limitation over (for) grantor’s own heirso 3. either by way of remainder or executory interesto Then: No future interest in the heirs is created. o Instead: the reversion is retained by the grantor (only ideally: the “then” part

is the key” Essentially: a remainder cannot be created in the grantor’s own heirs Examples

o “O to A for life, then to O’s heirs and their heirs.” Done inter vivos (41) A gets life estate O’s heirs would get contingent remainder (bc heirs don’t exist yet) O gets reversion BUT: doctrine of worthier title: reversion retained by O in FSA, as is

normally impliedo “O to A and his heirs as long as A is single, but if A remarries, then to O’s

heirs and their heirs” assume inter vivos (42) O’s heirs would normally get shifting executory interest But doctrine of worthier title: no future interest in the heirs is created

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So makes language “but if A remarries…” not make sense All that remains: “O to A and his heirs as long as A is single”

A has fee simple determinable (remember to look at language) O has possibility of reverter

Life estates determinable and on executory limitation Examples

o 1. “O to A for life as long as she remains a widow” (43) A has life estate determinable (would lose land if remarried) O gets possibility of reverter in FSA (if A remarries)

Reverter: is when determinable event triggered O also gets implied reversion in FSA: when A dies

Reversion: when timed estate ends (when life estate person dies; when term of years ends; when fee tail runs out)

Courts: will just give O reversion in FSA: bc stronger claim And if have both, can screw things up, bc one is alienable and

one isn’t Rule of construction of Life Estates Determinable: when O creates a future interest

in a grantee (B) which follows a life estate determinable , the courts will assume that O intended to grant a remainder to B, as well as an executory interest (unless a contrary intent is clear)

o Examples 44: “O to A for life as long as she remains a widow, then to B and her

heirs.” Issue: does B get it only if A remarries, or also if A dies? Apply the rule: assume O intended to grant remainder to B and

executory interest A has life estate on executory limitation B has vested remainder in FSA B has shifting executory interest in FSA (if A remarries)

45 “O to A for life, but if B reaches 21 while A is alive, then and only then to B and her heirs”

conveyance is clear: so don’t apply rule of construction A gets life estate subject to executory interest B gets shifting executory interest: on turning 21 O retains reversion in FSA

o Reminder: third party after expirable estate determinable: can have an executory interest and a vested remainder. look for the language in the granting clause, because it can cut it short, then the language after granting clause: can follow: just like normal vested remained

Trick: look for life estate determinable

Rule Against Perpetuities Rule:

o No future interest created in a grantee is valid unless it either Vests ( in the case of remainder) or Becomes possessory (in the case of an executory interest)

o If it ever vests or becomes possessory

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o Not later than 21 years after the death of some life or lives in being at the creation of the future interest

What’s it do?o Prohibits certain types of future interest in grantees (get rid of dead hand

prblm). Limits future interests that impaired marketability Future interests subject to the rule (only in a grantee)

o Contingent remainders o Executory interests o Vested remainders subject to open

Proving validity: to prove validity of a future interest subject to the Rule of Perpetuities, it is necessary to show that the future interest will necessarily vest or become possessory within 21 years after the death of some life in being at the creation of the future interest

Attack Test (do each step in order)o 1. Classify the interests created by a grant or devise to see if any of them is

subject to the rule (if not subject to the rule, you’re done)o 2. If either contingent remainder, executory interest, or vested remainder in

grantee: then: determine the exact point in time (the triggering event) when each future interest subject to the rule will vest or become possessory, if it ever does

if contingent remainder: what’s it take to vest if vested remainder subject to open: what’s it take for class to close:

this counts as vesting for purpose of the rule if executory interest: when does it become possessory?

o 3. Figure out if there is any possibility that the triggering event could be too late (more than 21 years after the end of all lives in being at the creation of that future interest)

if no: then satisfied rule against perpetuities if can figure out one way to violate (more than 21 years after death):

violated the rule: future interest is gone examples

o 46: “O to A and her heirs as long as the land is not used for a tavern, then to B and her heirs”

step 1 A has fee simple subject to executory interest B has executory interest in FSA

Step 2: (B’s executory interest is subject to rule) For it to become possessory: A/heirs has to use as a tavern

Step 3: A’s heirs could not use as tavern for 100 years, then do it So B’s interest wouldn’t vest until apprx. 80 years later: TOO

LATE B’s interest fails the rule against perpetuities, the executory

interest is void, and void from the beginning So strieke the shit that’s no good. Left with: “O to A and her heirs as

long as the land is not used for a tavern” A has fee simple determinable O has possibility of a reverter

o This is not covered by the rule: so could be 100 yrs

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latero 47 “O to A and her heirs, but if the land is used for a tavern, then to B and her

heirs” A has fee simple determinable B has shifting executory interest

Subject to rule: move to step 2 Triggering event: A or heirs uses as a tavern Could happen too late? YES: 100 generations later, A’s heirs use as

tavern—so strike bas stuff Left with: “O to A and her heirs, but if the land is used for a tavern”

“but” clause doesn’t make sense: strike it “O to A and her heirs”

o A gets FSA Check if the clause makes sense after the bas stuff, words of limitation

are treated differently o 48: “O to A for life, then to B and his heirs if B attains the age of 30.” At time

of grant, B is 2 step 1: classify

A has life estate B has contingent remainder: on condition of reaching 30 O has implied reversion in FSA

Step 2: triggering event B turning 30

Step 3: too late? (21 years after everyone alive at time of grant is dead)

NO: B is alive at the time of the grant. If contingent remainder vests, it will be during B’s lifetime. So everything stays

o 49. “O to A for life, then to A’s children for their lives, then to B and her heirs if B is then alive, but if B is not then alive to C and her heirs.” At time of grant, A, B, and C are alive and A has one child, S

step 1: id the interests to see if any are subject: A has life estate A’s children (S) have vested remainder subject to open in life

estate (have 1 child so vested, but open bc A can have more children)

B has contingent remainder: contingent bc he has to be alive at some point in time

C has alternative contingent remainder in fee simple absolute: if B is dead

O has implied reversion Step 2: for A’s children’s vested remainder subject to open: when

does it close? When A dies, bc then A can’t have any kids

Step 3: too late? NO: bc A alive at time of grant, when A dies, closes, can’t be 21 years later

So A’s children vested remainder stays Step 2: for B’s contingent remainder

When does it vest?

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o When B is still alive at death of A’s last child Step 3: too late? NO: bc B is alive at time of grant, can’t vest after he

dies, so can’t be 21 years Step 2 for C’s alternative contingent remainder: when’s it vest?

When B dies and at least one of A’s kids are alive Too late? NO.

B can’t die 21 years after B dies So contingent remainder vests as soon as B dies If none of the kids were alive when B dies: then C’s interest is

gone anyway Step 2 for S’s vested remainder subject to open

Closes when A dies. Step 3: can’t be too late. Bc A can’t die 21 years after A dies Result:

Everything stayso 50. “O to A for life, then to A’s children for their lives, then to A’s

grandchildren living at the death of A’s last surviving child, and their heirs.” At time of grant, A has no children or grandchildren

step 1: ID the interests A has life estate A’s children have contingent remainder in life estate (they

have to be born) A’s grandchildren living at the death of A’s last surviving

child: have contingent remainder in FSA (bc not born yet) O has implied reversion in FSA

For A’s children: Step 2 for A’s children: triggering event?

o They are born.o But then it’s vested remainder subject to open: so A

has to die to close it Step 3: too late? NO

o If it’s going to vest, A will have to have kids then dieo Can’t happen 21 years after A dies

For A’s grandchildren living at the death of A’s last surviving child Step 2: triggering event:

o A has to have a childo A’s child has to have a child: this vests contingent

remainder: but leaves it subject to open.o All of A’s children then have to die: closes class

Step 3: too late? YESo A could have child, Y, then die. A’s child, Y, doesn’t

have a kid for 50 years. Then dies. Everybody is dead. Too late: so strike it

What’s lefto A has life estateo A’s children have contingent remainder in life estateo O has reversion in FSA

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o 51. “T devises blackacre “to my grandchildren who reach 21 and their heirs” T devises (by will) Grandchildren: get executory interest in FSA (executory bc it’s not an

expirable estate) Triggering event: T’s grandchildren reach 21 Too late? NO

T is dead For triggering event (grandchildren take present possession)

there needs to be a grandchild Not possible unless T has a child at time he died: X If X has a kid, X can’t die more than 21 years before kid turns

21 So interest stays

T retains fee simple on executory limitation: goes by devise or by intestate succession after T dies: but rule doesn’t apply

o 52. “O to A for life, then to B for life, then to B’s children for life, then to B’s grandchildren and their heirs.” At the time of the grant, A and B are alive and B has two children, S and D. B has no grandchildren.

ID the interests A has life estate B has contingent remainder in life estate (contingent on being

alive when A dies) B’s children: vested remainder subject to open in life estate (bc

B could have more kids) B’s grandchildren: contingent remainder (bc not born yet)

B’s contingent remainder in life estate Triggering event: B alive when A dies Too late? NO: B alive at time of grant so he is measuring life,

can’t die 21 years before he dies B’s children

Triggering event: B dies Too late? No: B is measuring life. Closes as soon as B dies

B’s Grandchildren Triggering event:

o They are born: turns to vested remainder subject to open

o Then all of B’s kids have to die Too late?

o Yes B has another kid, Q S and D die, B dies Q lives for 40 years more. So vested interest

doesn’t close So eliminate this interest. Left with: A life estate; B’s

contingent remainder; B’s childrens’ vested remainder; O’s reversion

o 53: Get around above: insert validating life that can’t die 21 years after death: “O to A for life, then to B for life, then to B’s children for life, then to B’s

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grandchildren who are born within 21 years after the death of the last survivor of B’s children currently alive and their heirs

all the same except: B’s grandchildren who are born within 21 years after the death of the last survivor of B’s children currently alive and their heirs

triggering event: B’s children alive at time of will die (S and D die)

after 21 years: the vested remainder subject to open closes so not too late

hint: insert name of living person: anchor that to vest contingent/vested remainder subject to open. (within 21 years of person X who was alive at time of grant, then won’t be too late)

o 54: “O to such of A’s children as attain the age of 25 and their heirs” A. at time of grant, A is dead and has two living children, X and Y,

who are not 25 A’s children: executory interest, must reach 25 (not contingent

remainder bc not following expireable estate Triggering event: they turn 25 Too late?: No. A can’t have any more kids. X and Y are alive,

so can’t die 21 years before they turn 25. Left with

o O retains fee simple subject to executory limitation o A’s kids keep their executory interest: springing

B. same as above: but A is still alive A’s children: executory interest Triggering event: A’s children reach 25 Too late? Yes

o A’s already born kids dieo A has another kid, Q, then A immediately dieso Q wont reach 25 before 21 years runs

o Hints Probably not going to be rule of perpetuities problem where…

The event that causes the contingent remainder to vest or the executory interest to become possessory (hereafter referred to as "the triggering event") relates to the activities, reaching of a certain age, or death of a named, living individual. See, e.g, # 33, 48, 49, and 52 above.

The triggering event relates to the activities, reaching of a certain age, or death of a generic class of individuals, all of whose members are necessarily alive at the time of the grant. (like children of a dead person) See, e.g., "O to A for life, then to B's children for life, then to B's grandchildren who are alive at the death of B's last surviving child." At the time of the grant, B is dead. See also # 54a above.

The triggering event relates to the activities, reaching of a certain age, or death of a generic class of individuals who can be implied from the terms of the grant and whose

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members are all necessarily alive at the time of the grant. See, e.g., # 51 above.

There probably Is going to be a perpetuates problem where The triggering event relates to the activities, reaching of a

certain age, or death of a generic class of individuals, whose members might increase after the time of the grant. See, e.g., # 50, 52, and 54b above.

The triggering event does not relate to the activities, reaching of a certain age, or death of any named, living individual or of any class of individuals. See, e.g., # 46 and 47 above.

More exampleso 56. “O to A for life, then to the first child of A who reaches 30 and that

child’s heirs.” Assume A is alive and has no children interests

A has life estate A’s first child has contingent remainder (it could also be

executory interest, but rule of Purefoy v. Rogers) O’s reversion

Step 2: triggering event A has a child and the child reaches 30 before A dies

Too late? YES. A has a kid. Dies. Takes 29 years for kid to get to 30 BUT NO: bc traditional common law rule: contingent remainder

destructible if fail to vest in time. So if A dies with child younger than 9, the contingent

remainder is destroyed So can’t vest too late So triggering event is really. A’s first child to reach 30

provided that happens before A is deado A is alive at time of grant. If the contingent remainder

is going to ever vest, it’s gotta happen within 21 years of A dying (otherwise will just be destroyed): so meets rule

Result: in jurisdictions that follow rule of destructibility of contingent

remainders: will be good. Bc A will have to be alive for contingent remainder to vest, or else destroyed. So if it’s gonna vest at all, it’s within 21 years of A’s life: who is measuring life

in jurisdictions that abolished rule of destructibilityo future interest violates rule against perpetuitieso the contingent remainder is not destroyed for failing to

vest in time. So if A dies with a 1 year old, can take another 29 years. Too late

C. Co-ownership Co-ownership: right to present possession at the same time

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Tenants in Common: separate but undivided interest in the property attributes

o alienableo devisable (no right to survivorship)o descendable (intestate succession)

Joint Tenants: have right of survivorship together regarded as single owner: each tenant owns undivided whole

o so when one dies, nothing passes to surviving joint tenant(s) o just stays with status quo

requirements: four unitieso 1. Time: interest acquired or vest at the same timeo 2. Title: acquire title by same instrument or by adverse possession

Can never arise by intestate succession or other act of lawo 3. Interest: must have equal undivided shares and identical interest (measured

by duration)o 4. Possession: each have right to possession of the whole

One joint tenant can voluntarily give exclusive possession to another Some states don’t require all four requirements

o Like today: unequal shares: okay for joint tenancyo Traditionally: uneqal shares=no unity of interest: not joint tenancy

When 1 of unities ceases: turns to tenancy in common (so can get rid of it unilaterally) Avoids tax

o No probate tax: Bc no interest passes on the joint tenant’s death So also can’t be passed by will

o Subject to federal taxation: except husband wife exeption o State tax law: protion owned is taxo Nothing for creditors to gram after death

Attributeso Alienable (but destroys joint tenancy: turns to tenancy in common)

But other joint tenancts still have joint tenancy, only turns the person who sold into tenancy in common

o Not devisableo Not descendable

Tenancy by the entirety: same as Joint Tenancy: but also requires marriage Husband and wife seised of intirety: so can’t unilaterally turn it into a tenancy in

common: must do it together Divorce:

o Some courts: turns into tenancy in common: absent agreemento Some courts: convert to joint tenancy (other 4 attributes there)

Attributeso Not alienable: (unless consent of both spouses)o Not Devisible: there is right to survivorshipo Not Descendible: there is right to survivorship

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Presumptions Old: presume joint tenancy: don’t want to divide land

o So grant to two or more unmarried ppl created joint tenancy (assuming unitites satisfied)

Today: presume tenancy in common (unless clear intention otherwise For husband and wife: presume tenancy by the entirety

Examples 57: “O to A and B and their heirs.” A and B not married

o traditional: A and B are joint tenants in fee simple absoluteo today: by statute: presume tenancy in common

58 “O to A, B, and C and their heirs as joint tenants, and not as tenants in common.” A conveys her interest to X. B dies, leaving Y as his sole heir.

o Conveyance to X severs joint tenancy between A to B and A to C o But joint tenancy remains between B and Co So Y gets nothingo When B dies, C left with 2/3. X has 1/3 tenant in common

59. “O to A, a one-third interest in Blackacre, and B, a two-thirds interest in Blackacre and their heirs, as joint tenants and not tenants in common

o traditionally: tenants in common in FSA. Bc don’t have unity of interesto today: joint tenants in FSA

60. “O to H (husband) and W (wife) and their heirso common law: conveyance to two married people creates tenancy by the

entirety o A. W conveys her interest to X and her heirs

Void conveyance: seised of intiretyo B. H dies, with a will leaving all his property to S

W owns property in FSA S has nothing: conveyance void

61. “O to A for life, then to B’s children and their heirs”o A. A and B are alive. B has one child, C

A gets life estate C has vested interest subject to open in FSA

o B. B has a second child, D. Then B dies. Then A dies. Then C dies, with a will leaving all of C’s property to X

When D is born C and D have vested interest subject to open

B dies: C and D’s interest closes C dies: leaving to X

Void interest: bc joint tenancy: not devisable What about time requirement? C got interest at day of

conveyance, D didn’t get it until borno This is not violation of unity of time o The interest was created at the same time:

pursuant to the conveyanceRiddle v. Harmon

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Facts: husband and wife had joint tenancyo Wife made conveyance to herself: to convert it into tenancy in commono Then made a will: to devise her interest to her heir

Old rule: can’t have grantor/grantee be same person to execute fief in livery of season: it’s unseamely to infief yourself

o Avoid: by using strawman. Convey to 3rd party, they convey backo Cali: had statute: about creation of joint tenancy. That no longer had to give

whole interest to 3rd party and then they convey back to satisfy unity of time Statute indicates: get rid of obsolete technicality: let ppl do their

intentions So new rule: can convey interest to oneself to destroy joint tenancy (allowed to do

directly what could do indirectlyo But some unfairness here

If he dies first: she rips conveyance up: gees survivorship If she dies first, he assumed would get whole thing, fucks up plans

o So some jurisdictions: allowed to convey to self to eliminate joint tenancy but must notify joint tenants

Or conveyences that eliminate this problemo O to A and B in joint life estate then to the survivor

A and B have life estate (joint tenancy it traditionally, modern would prob be tenancy in common): make clear

Then contingent remainder in survivor: contingent bc unascertainableo Tenancy in common in fee simple with an executory interest in sthe survivoro Fee simple to take effect in possession in the future

Harms v. Sprague Facts

o Brothers owned land as joint tenants o John: borrowed money for Sprague, by mortgaging out his section of the lando Then john died, leaves everything to sprague

Issue: o 1. Is a joint tenancy severed when less than all of the joint tenants mortgage

their interest in the propertyo 2. does such a mortgage survive the death of the mortgager as a lien on the

property? 1. Depends on theory of mortgage

o title theory X (mortgagor), bank (morgagee) : simmons

mortgaging: creates fee simple on condition subsequent (condition=paying off mortgage). Like “as long as mortgage payments made”

this would sever joint tenancy: bc no unity of interest Today: even title theory states: don’t work this way

o But if continued the app. Sprague inherited tenancy in common, so mortgage still exists on his portion of the property

o Lien theory

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X retains Fee simple absolute Bank has a lien: no title transfer If you don’t pay: bank goes to court: auction off house, takes

their money off the top Conclusion: a joint tenancy is not severed when a joint tenant executes a mortgage on

his interest in the property, since the unity of title has been preserved 2.

o So right of survivorship still thereo property right of John is gone on his death

Therefore: mortgage doesn’t survive (this is on lien theory of mortgage)

Bc the lien was on an interest that no longer exists. Disappeared with death. Mortgage disappears with it

Simmons (the mortgager) has no interest which their mortgage attaches

o P is now the sole owner of the property

Spiller v. Mackereth Facts

o P and D co-tenancy of warehouseo When renter moved out: Spiller started using as a warhouseo Mackereth: sent letter: either move out of half of space or pay rent

Issue: is exclusive occupier liable to non-occupier other owners for exclusive occupation?

No: right to present possession shared with other co tenants to entire property Rule: in absence of an agreement to pay rent or an ouster of a cotenant, a cotenant in

possession is not liable to his cotenants for the value of his use and occupation of the property

o 2 ways to show ouster 1. Beginning of the running of the statute of limitation for adverse

possession 2. Liability of an occupying cotenant for rent to other cotenants

Exceptionso 1. When exclusive occupier ousts co-tenants (or have agreement to pay):

occupier owes liability 1. statute of limitations ouster: hold possession and then try to get

exclusivity of it by adverse possession: claim to absolute ownership an attempt by one cotenant to adversely possess the others: requires assertion of complete ownership: clear regarding self as sole owner

o denying existence of cotenant relationshipo show total denial of cotenancy

retains for period of statute of limitations 2. For Rental Value: to prove ouster

rule: occupying cotenant refuses a demand of the other cotenants to be allowed into use and enjoyment of the land, regardless of a claim of absolute ownership

o there can be no denial of right to enter without a

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demand or attempt for it 1. Cotenant (nonpossessor) demands for us of the property 2. Denied use of that place example: O says move shit over, I’m coming in. person already

there says no. easier to show than total denial here: sent letter saying move shit

didn’t serve as demand, also said pay 50% rent if she said: get out or let me in: then entitled to renatl value of

half premises during exclusive occupation so there was no ouster here

minority: her letter would be enough

Remedies when 1 cotenants rights violated by another’s Partition: any cotenant could ask for it

o 1. Physical patrician (patrician in kind): physically divide upo 2. Patrician by judicial sale: judicial auction: proceeds split up in

accordance with interests applied when…

cotenants don’t get along when difficult to make fair division (1 part more valuable than

another) let market determine: then sale value can easily be split up

problem: sentimental value: market wont giveo so try to physical patriciano 1 section owner must reimburse others for more

valuable parto owelty: payment for getting less valuable section of

propertyo tenants by the entirety: not entitled to patrician unless spouces agreeo but tenants in common and joint tenants: individuals can request patrician

statute: determine when patrician is appropriate common law: look for fairest and efficient results: toughest when they

point in different directionso example: 1 tenant wants out, other 2 don’t

2 that don’t want, split: or bid for it. This is frequently used request for accounting: P is a cotenant claiming others owe something of value

o ex. mineral interest cotenancy: 1 person sells oil, and keeps the moneyo other cotenant wants share: share in net value: not gross

the person who digs up gold gets to take costs out action for contribution: 1 cotenant paid: to benefit entire property: want

reimbursemento when is indi entitled?

1. If money on carrying charges: like mortgage, real estate taxes make payments or lose property cotenant who paid: gets reimbursement

2. Improvements: build new room on a house expending cotenant gonna lose bc what one thinks it worth it others may not

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but if one person spent a lot to increase value: can get patrician

o the value added gets made in sale: goes to the one who made/paid for improvements

3. Repairs: fix leeky roof middle ground: easier to prevail than improvements but

harder than carrying costs o depends on how necessary repairs deemedo if looks like carrying cost (necessary or lose value):

then will prevail notice: for repairs might make that shit.

can agree about stuff: these just default rules if no agreement: balance efficiency and fairness

III. LANDLORD-TENANT LAW

Parties can define right/liabilities by lease: property law fills gaps. Also may invalidate lease provision for policy reason

Types of Tenancies 1. Term of Years: estate that leasts for some fixed period of time: or for period

computable by formula that results in fixing calander dates for beginning and endingo computable example: 1 ear from day man reaches moon: computable by

objective eventso attributes

expires at end of period neither party must notify other of intent to terminate lease

2. Periodic Tenancy: lease for a period of some fixed duration that continues for succeeding periods until either landlord or tenant gives notice of termination

o common law: year to year tenancy: 6 month notice required month to month: 1 month notice

o if no notice: tenancy automatically renews self to be governed by original terms (rental obligation continues: LL can sue for rent)

o if no fixed period given… example: “at annual rent of $12,000 paid month to month

most juriscitions: this would count as periodic tenancy (not term of years)

period: the period is how the month is paid (so in example: month to month) (majority)

minority: the period would be the yearo if give notice: but notify that you’ll move out earlier date than allowed (like

notice of 5 months in year to year tenancy) majority: invalid for move out: but works as notice for earliest possible

move out (like after 6 moths) 3. Tenancy at will: lasts as long as they both will tenancy to continue

o ends when 1 dies

Holdovers: tenant doesn’t move out after terms of years end

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LL has a choice: o 1. Treat tenant as trespasser (evict)

summary eviction: expedited process for LL only can recover damages for wrongful possession (fair marketvalue:

probably determined by rental during lease term)o 2. Treat tenant as starting new tenancy: on same terms: in a periodic tenancy

can make pre arrangement term: about rent increasing (but default, satays the same)

if was year long lease: goes year to year now

How to classify1. licenses: later2. easement: for quite limited purpose3. lease

a. broader range of rights: more likely it’s lease4. is it a conveyance in estate in land or contract?

a. Conveyance: landlord conveys present possession, retains future interest (traditional view)

b. Contracts: instead or in addition to conveyance (modern trend)

Universal View: covenant in every lease: LL guarantee the lega l right to present possession at commencement of lease (there will be no legal obstacle to moving in)

Example: tenant tries to move in. LL has already rented space to another person. LL liable.

English rule: implied covenant to make land physically available But do not extend the implied covenant beyond the day when the lessee’s term begins So tenant must protect self after that day

o Hypo: if tenant moves in, then adverse possessor comes in, tenant doesn’t pay bc of that, tenant liable to LL

o LL obligation over the day land conveyed This is more like conveyance theory (give them present possession) then contract (they’re

paying for being allowed to possess) Policy

o Contract doctrine: whole point of making contract is moving in o LL has better access to the facts (going to know what wrongdoer is doing (like a

holdover)o Had better info to stop ito Better legal remedies

New tenant can only do something once gets right to present possession LL can start eviction earlier: once term up, can start suit: and has more

remedies availableo If takes lots of time: lots of costs on tenant

Tenants have choice in these jurisdictions (if there is person there)o 1. Can terminate lease and stop paying rent (LL not carried through with

obligation, tenant hasn’t received present possessory estate: so no obligation to pay rent)

o 2. Keep lease going, move in when trespasser leaves, sue LL for breach of covenant damages (measure by extra expenses tenant incurred bc unavailable leased premises)

o 3. Tenant can keep possession, lease going, sue wrongdoer (act like American

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rule jurisdiction)

American Rule: recognizes lessee’s legal right to possession, but implies no such duty upon the lessor as against wrongdoers

But can protect self by getting explicit term Policy

o If want protection: could insist on privision being includedo Tenant didn’t insist: no reason court should rewriteo English rule would make it impossible for LL to lease out premises with tenant

on it: risk being liable for holdovero LL not covenanted against wrongful act of another

Example: tenant moves in: there is another person there, X, just stays. Tough to new tenant American view; LL not responsible English rule: LL is responsible

Hannon v. Dusch Facts: when tenant supposed to move in, holdover there. No express provision. LL refused

to do anything. Issue: is there implied covenant? Accepts American rule: no duty: unless express covenant

Assignment v. Sublease

Ernst v. Condit Facts: Ernst leased to rogers. Rogers got replacement tenant: Conditt (D)

o Conditt didn’t pay rent. Issue: was Conditt a assignee (in which case rent due to Ernst) or a subleasor (Rogers only

one liable to Ernst) How to differentiate:

o Plain meaning with legal meaning holdso Common law: if the instrument transferring the estate for the entire remainder of

the term: assignment. If less, then it’s a subleaseo Modern view: Cardinal Rule: ascertain the intentions of the parties

Applicationo Condit: this said sublease a bunch of timeso Court: parties have no right to definitively characterize relationship for court

(could have used terms carelessly; relevent but not determinative) o Condit: Rogers still liable, he retained reversion and right to reentry: it’s a

subleaseo Court: Rogers remaining liable: doesn’t matter: that’s bc Privity of contract still

exists D took possession, paid P, remained in possession for term, bought

business (not retained by Rogers), he got assigned. No reserved right to reenter or reversions. It was assignment. D is liable

Effects of assignment and subleases

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Assignment: Privity of estate that used to exist between landlord and original tenant gone Privity of estate goes between LL and new tenant LL and original tenant: still have Privity of contract (as long as it was a lease (contract) to

begin with)o Tenant bound by any promises tenant made in original lease

Privity of contract between old tenant and new tenant: as long as promsies made Effect

o LL can sue new tenant based on Privity of estate (holding right to present possession gives obligation to pay rent)

o LL can sue original tenant: based on Privity of contract (broke contract by money not being paid

Sublease: Privity of estate and contract remains between LL and original tenant Then there is Privity of estate and Privity of contract between original tenant and new

tenant Effect

o LL can only sue original tenanto Original tenant can then sue new tenant

Examples 1. Landlord leases to T for 3 years at $1,000 for three years. After one year, T “subleases,

tranfers, and assigns to T1 for 1 year.” Neither T nor T1 pay rent to Lo T retaines reversion: bc only for 1 yearo Intent test: doesn’t work, refers to botho But bc reversion: this is subleaseo LL rights

LL can sue original tenant: yes: both Privity of estate cand K Can LL sue T1: NO: no Privity of estate or K But: if term “promise whereby T1 agreed to pay the rents reserved in the

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head lease. Then third party beneficiary doctrine

if T1 promises to pay rent that T was contracted to do, then L can

sue T1 under Privity of contract: bc term was to benefit Lo if no explicit agreement of T1 to pick up T’s rent

obligation: unlikely court would imply some places: by statue: L can evict T1

effect on T’s rights: T not off the hook, still Privity between LL and T novation: agreement between T and LL: whereby T is off the

hooko if this is case: LL can sue T1 through explicit agreement

2. L to T: T promised to keep in good repairs and pay rent. T entire interest to T1 in assignment: with explicit agreement to assume lease obligations. T1 to T2 assignment (no explicit promise. T2 to T3 assignment

o L against T: can sue: still have Privity of contract Can get contribution from T3: Privity of estate runs?

o L against T1: Privity of estate still between L and T1 when T transferred to T1. When T1 transfers: Privity of estate gone: bc assignment shifts Privity of

estate to T2 BUT: explicit promise by T1 to assume all responsibility: so can sue on

3rd party beneficiary theoryo L to T2

Had Privity of estate between when T2 got land and when assigned to T3 But then Privity of estate gone

No Privity of contract: bc no explicit contract between L and T2 So no way to sue

o L to T3 Privity of estate: so can sue

Can only have Privity of estate with one T LL: must have good reason to reject proposed assignment or sublease

o Must accept unless good reason not to (market value jump is not sufficient)

Default by Tenant

Berg v. Wiley Facts

o T: opened restaurant. Terms not to violate code. Told to fix in two weeks. Closed down to fix. Locks changed once, changed back. When P not there, D changed locks again

Issues

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o 1. Was there abandonment? Jury: found no. had sufficient evidence. So lockout can’t be excused by

absondonment o 2. Was there error in finding reentry forcible and wrongful as matter of law?

Basically: is self help okay? Common law rule: LL could exercise self help if (1) legally entitled to reposess premises

and (2) landlored exercised peaceable meanso Court: rests on 2nd element: even if LL had right: violated rule bc means not

peacible Court doesn’t like self help: just luck violence didn’t break out (and

tenant good snese that prevents violence): so any slef help is not peacible means and anyway…

Modern doctrine: self help repossession is never appropriate (even if think it’s abaondened): still must go to court: tossed common law rule

o There is expedited process to kick holdovers out: that’s good enougho Even if LL brings cops with him: same resulto Even if provision in contract saying self help okay: can’t contract away the

policy

After Tenant breaches and moves out Traditional rule: LL under no duty to mitigate damages caused by D (can wait around and

get full damges)o Lease conveys a tenant an interest in the property which forecloses any control

by LLo So doesn’t make sense for LL to concern self with abandonment o But worry about implicit acceptance: if LL moves in to abandonment property:

probably wont have right to recovery Policy against modern

Imposes too onerous obligation on LL; LL forced to enter relationship he didn’t want; potential perpetual tenants abandoning

o If LL try to relet: or move in self: worry about implicit acceptance (wouldn’t get anything for breach). Ending tenancy

o Also: LL would lose opportunity to rent other properties Modern Rule: Landlord has duty to mitigate abandoning tenant’s damages

o Contract law: every non-breaching party has duty to mitigate damages from other party’s breach (all jurisdictions have duty to mitigate)

o Only require reasonable efforts: not absolute duty Find and agree to objectively reasonable tenant (like don’t have to accept

poor credit) Treat the place as one of his stock Can recover costs involved: like through advertising

o Policy Contract rules Efficient use of land: reduces waste

Agency theory: LL try to relet: acting on tenants behalf as his agent to assign property for duration of lease

Means Privity of contract between LL and T still exists (so can still go after T if T1 defaults)

If LL gets more from T1 than T: possibly liable to T, but courts won’t

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apply If market drop: and LL can’t get as much from T1: LL can recover

difference from T (bc T1 fulfilled part of contract, but not all of it)o Some jurisdictions: works only if LL first gets tenants prior consent

Can put it in lease termo Some jurisdictions: LL must notify/make reasonable effort to notify he is acting

on tenants behalf (if tenant objects, then it’s tenants responsibility)o Some jurisdictions: don’t need notification or consent: can act as agent as long as

the LL shows evidence that he is not retaing land but is acting as agent Restatement: don’t impose duty to mitigate. Encourages vandalism if LL must mitigate, so

don’t require it.

Hypo: T leaves and leaves note. LL looks for new tenant. LL can’t find based on best efforts. LL suit against T for $1,400. Sues after 2 weeks

LL: argue even if I find someone, they’ll be paying 1,200 less over the year (say 100 less per month)

o Can only recover first month extra $100 dollars. After that, T default only for 1 month rent. LL hasn’t been hamred by failure to pay other 11 months. Anticiitory breach (say left a note and didn’t pay for 1 month) not a thing. At this point, lease considedered done

If LL waits till lease tolledo Some courts: LL fucked: gets zeroo Other courts: if market value has fallen, and LL tried to mitigate, would still lose

the $1200, can recover it

Sommer v. Kridwel Issue: is LL under duty to mitigate damages by making reasonable efforts to relet

apartment wrongfully vactated by tenant Adopt modern rule: LL must take reasonable efforts to seek to recover rents due to a

defaulting tenanto If have other places: treat place like one of stocko Abandoning tenant liable for price of reletting o Burden: on the LL to show: bc better access to info

Test for mitigationo LL: personally or through agency, offered or showed the apt, or advertised ito Tenant: can rebut: showing that he proffered suitable tenants who were rejectedo No standard formula: judged on facts

But LL doesn’t need to accept less than fair market value

Duties of Land Lord Common law: Caveat Emptor: absent clause providing otherwise, tenant took property as

is, o LL under no duty to make property good for T intended useo Hypo: if include clause: that keep plugs good. T tells LL plugs don’t work. LL

says tough. T stops paying rent. LL sues for breach LL wins: LL breached promise, but obligations in leases are independent

of each other So this breach doesn’t excuse failure to pay rent. Both get

damages Breach by LL gives right to T to sue for damages/specific performance

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but not to break lease or end duty to pay: obligations separateExceptions to independent obligations

Physical Eviction: o LL lets T move in, then kicks him out. T stops paying rent. LL sues: not liable:

Tenant was physically evicted. LL took conveyance back Take back conveyance=termination of lease Sessation of Privity of esate=sessation of T’s obligation

o T moves in. LL accidentally levels T’s apt. T mvoes out, stops paying rent. LL sues. T wins, has been physically evicted

Doesn’t matter if physical eviction comes from negligent or purposeful conduct by LL

Constructive eviction: if tenant has been constructively convicted: treat same as physical eviction..

o 1. breach of covenant of quiet enjoyment. Implied in every lease (relying on contract law to imply covenant, and creating exception for covenants being independent)

Results in termination of lease+no liability for T Example: pounding on T’s ceiling every night makes it impossible to

sleep. T’s premisis still available and in same condition. But interefered so much that T is deprived of right to use and enjoy premises

Elements (Landlord’s malfeasance): wrongful act by LL 1. L’s act caused substantial interference with T’s ability to use

and enjoy the leased premises 2. The interference amounts to a breach of the implied covenant

of quiet enjoyment 3. Such a breach amounts to a constructive eviction 4. T may vacate, provided T does so within a reasonable time

after the constructive eviction If don’t leave within reasonable time: don’t get to break lease

But can sue for damages for breaching implied covenant of quiet enjoyment

o 2. Elements of not by LL. Landlords nonfeasons 1. L has a duty to act

won’t flow from implied covenant of quiet enjoyment, bc doesn’t require LL to do anything, just not do something

2. L breached that duty by failing to act must tell the LL

3. the breach caused substantial interference with T’s ability to use and enjoy leased premises

when constructive eviction begins: reasonable time after this 4. the intereference amounts to a breach of the implied covenant of

quiet enjoyment 5. Such breach amounts to a constructive eviction 6. T may vacate, provided T does so within a reasonable time after the

constructive eviction o sources of the duty

1. lease covenants 2. statute or administrative regulation (housing/building code) 3. judge created, common law duties

a. duty to disclose latent defects

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o bc outside caveat emptor: T couldn’t know about it. Duty to disclose, no duty to fix.

b. duty to maintain common areaso no authority for T; T lacks insentive (shared costs, hope

someone else will do it, free rider problem); liability c. duty to conduct repairs undertaken by LL carefully

o normal negligence problem. Reasonable standard of care d. duty to abstain from making fraudulent misrepresentations

about the condition of premiseso contract law: estoppel

e. duty to abate immoral conduct and nuisances that affect leased premises

o only some jurisdictions: if effect the leased premisesReste Reality Corp v. Cooper

facts: Water would flood the office space. LL promised to fix, but didn’t do it well. T trying to claim constructive eviction. T moved out, LL suing for back rent

Rule: Any act of the landlord or of anyone who acts under authority of the landlord, which renders the premises substantially unsuitable for the purposes for which they are leased, or which seriously interferes with the beneficial enjoyment of the premises is a breach of the covenant of quiet enjoyment.

o Teanant cannot consent to defect that makes it unsuitable (by resigning, although under a promise to fix)

App: court didn’t site any of ways LL could have breached duty (3: b, c, d) o Instead: even if tenant is relying on LL nonfeasons: can justify constructive

eviction defense. All the T needs to show is LL nonfeasance resulted in substantial interference, resulting in breach of covenant of quiet enjoyment (eliminated additional requirements of non-feasons)

This eliminated two exra elements of nonfeasance (duty, and breach thereof)

This is minority: so still apply two extra elements

Hypo: Other tenants doing loud shit.

o NJ: (from Reste): just show normal elements of implied covenanto Others: have to show additional duty and breach

Difficult Minority of courts: duty to abate nuisances that affect least premises (but

hard to predict balancing of rights in nuisance even in these cases) Criminal activity.

o LL might have to give deadbolts and hire security guards. o Only could leave if failure to maintain common areas

If searching for declaratory judgment (don’t want to risk being wrong about if it’s a constructive eviction): freezes reasonable time before leaving requirement. But if takes a long time to decide, and you’re paying for other housing, will minimize value of relief

More reasons can pick up and leave Implied Warranty of Habitability: at time lease begins, premise must be habitable

o Habitable: all latent and patent defects in residential unit to essential aspects of residents (also applies to duty to repair by def.)

Essential: vital for use of premises for residential purposeso Hilder v. St. Peter: breach of implied warranty of habitibailty by LL

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T repaired stuff herself, withheld rent to do it Rule from case: when the LL breaches the implied warranty Habitability,

tenants can withhold rent, repair defects and deduct cost from rent payments, seek rent already paid, and seek punitive damages in appropriate cases

This case: says for apply for all residential at least (only for residential, not applied to commercial)

That deliver and maintain premises that are safe, clean, and fit for human habitation)

o Could argue only apply traditional property rules in rural setting: once conveyance: LL done. Imply these rules in urban context: bc tenants not able to make repairs themselves

o Hypo: rent rural farm with house on it, it’s infested. Differentiate (urban v. rural; farm and house v. just home; public health concerns; scarcity of housing

Implied Covenant of Repair: LL has duty to repair for problems that arise during the lease that make premise inhabitable

o Probably won’t work in commercial residents either (maybe get it to, usually not)o But constructive eviction does apply.

Constructive eviction won’t be so relevant in residential anymore: bc habitability rules give T more rights/easier case.

Some courts: regard local housing code as minimum level of habitability. So if break code, per se breach of covenant

o Hilder cont: not rely completely on code: but if show breach, will probably win if can’t show breach, won’t automatically lose though test: in all courts: if alleged defect has an impacy on the safety or health

of the tenant some courts will even apply in amenities: like AC

Remedies: lease creates contractual union: standard contract remedies 1. Rescission: contract gone, detroy lease

o a. T must notify LL of breach and give reasonable time to fix problem

if fail to fix: T can leave and terminate lease (like constructive eviction)

2. Reformation: change terms of contracto T can stay and stop paying rent unitl fixedo Bc implied warrenty of habitability is covenant on LL

part that is llinked to T’s covenant to pay rento Different than constructive eviction: in that T doesn’t

have to leave (or else can only get damages later) as in constructive eviction. In implied warrenty: can stay and stop paying rent and get damages (even punitive ones)

So remedies broader But if only minor breach: then have certain

amount of time to make up fraction of rent withheld

3. Damages: T stays and sues for damages (can get punitive) 4. Repair: reduce cost from rent due. But must give LL notice

(this is really form of reformation)o some courts: reject this: bc gotta go to court for damages

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o LL had a duty. T tells him, LL doesn’t do it, LL should have had to pay for fixing, so tenant just fixes and charges LL

calculation of damages under reformation remedy: optionso 1. Rent due = agreed rent minus: (fair value as warranted minus fair value as is)

ex. agreed to pay 100 a month. Place worth 110 a month at code, at value worth 90.

100—(110—90)=80. Damages would be 20 (if had paid) easiest and most common

o 2. Rent due = agreed rent minus (agreed rent minus fair value as is) ex. agreed to pay 100 a month. Place worth 110 a month at code, at value

worth 90. 100—(100—90)=90

if already renting real cheap: shouldn’t get double benefit. But just slightly less than rent due, so no incentive to LL to fix, especially closer the actual rent is to actual value

o 3. Rent due = agreed rent minus (agreed rent times % of lost use as a result of breach)

ex. agreed to pay 100 a month. Place worth 110 a month at code, at value worth 90.

100—(100 x (18%): 82

o 4. Rent due = rent times (fair rental value after breach divided by the fair rental value without the breach)

ex. agreed to pay 100 a month. Place worth 110 a month at code, at value worth 90.

100 x (90/110): 81 rejected bc too complicated

Retaliatory Eviction Stauteso Scope: What acts by T form the basis of the retaliatory eviction or related

protections: Typically; triggered by LL response to T report of inadequate conditions

to local housing authority or organization of housing uniono Application

To eviction; termination of lease (in response to above, terminates month to month lease); cutting off heat or air conditioning; etc

o Burden LL action within certain amount of time presumptively retaliatory:

burden on LL to prove After time period: burden on T

o Remedies Right to stay Sometimes damages

inLL tort liability: same as tort law, except (modern trend): special duty for injured tenants or their invitees

Traditional: LL has few if any dutieso Latent defect disclosure rule: there is a duty to disclose latent defects that tenants

shouldn’t be expected to discover: only duty to disclose, not fixo If defect is patent: then no duty

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Modern: if new duty breached (above): then liability Pheld Case: duty to maintain common areas only broad enough for physical defects

o No criminal assaults by third partieso This probably majority

But: Jackson case: LL have been forced to put in speedbumps If criminal activity by other tenant

o More connection by LL to 3rd partyo Courts split

Factors Awareness of LL to past criminal conduct Difficulty to stop activity or remove tenant

Tenant duties T only has present possessory estate: duy not to commit waste

o Ex. cut down old trees for firewood: LL said wasting Impaired value of reversion to LL: voluntary/affirmative waste

Common law: duty not to commit waste implied in every leaseo Reasoning: short term conveyance, doesn’t give tenant right to impair long term

valueo How to define duty: duty not to commit waste is breached if tenant makes “such

a change as to affect a vital and substantial portion of the premise: as would change its characteristic appearance; the fundamental purpose of the erection; or the uses contemplated, or a change of such a nature, as would affect the very reality itself, extraordinary scope and effect, or unusual expenditure

Hypo: Rainstorm puts whole in roof. T does nothing. Fucks whole place upo T probably has better case. Bc failure to act instead of affirmative conducto For LL to win: has to show T violated a duty by fialing to act

Duty to act: would be duty to repair Common law: tenants have duty to make ordinary repairs that

arise during lease hold Most courts: say duty includes this repair

Clause in lease: if lease says: tenant responsible to make all necessary repairs

Others: repair and rebuild different, doesn’t go that far (amaco case)

o Hypo: fire destroys house: still have to pay rent? Common law: had conveyance, you’re still the tenant, so must pay Greenfield Case: opposite

1. Tenants rent buildings not land: if building destroyed, tenant not deprived of bargain

2. Lease more like contracts than conveyance in lando doctrine of impossibility of performance applies:

impossible for LL to perform bc building gone, tenant no longer has to fulfill promise

IV. NUISANCE

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Comes from 1. judicial: can’t do this bc restricts use and enjoyment for others2. administrative: zoning laws: restrict way to use3.environmental laws

Trespass Funciton: to protect P’s right to exclusive possession elements

o 1. Defendant’s conduct causedo 2.An infringement on the right to exclusive possessiono 3. Defendant acted intentionally (defandent knew or should have known

conduct result in entry) (common law intent, just to be engaged in conduct) (like just knew placing barrels, not that trespassing)

no need to show harm, damage to current use. Just on your property traditional: strict liability modern day: not strict liability: show D’s knowledge/intent doesn’t matter how much interference: except in damages calculation ex. horrible odors:

o traditionally; couldn’t be trespass if not physical invasion. But some cases; simply bc can’t see it, doesn’t mean it’s not something entering your land

o but nuisance would probably be better claim

Morgan v. High Penn facts: claim that D emitted fumes. Impaired use and enjoyment, company didn’t

stop after being put on notice rule: private nuisance exists in a legal sense when one makes an imporper use of his

won property and in that way injures the land or some incorporeal right of ones’ neighbor

rule oafter case: a person who intentionally creates or maintains a private nuisance is liable for the resulting injury to others regardless of the degree or care or skill exercised by him to avoid such injury (like strict liability, as long as activity was intentional and aware of nuisance)

o Invasion of anothers interest intentional in the law of private nuisance when the person whose conduct is in question as a basis for liability acts for the purpose of causing it, or knows that it is resulting from his conduct, or knows that it is substantially certain to result from his conduct

Intentionally creating/maintain nuisance liable regardless of the degree of care or skill exercised to avoid the injury

o

Nuisance: to protect private use and enjoyment of land Must show substantial interference

o Nuisance per se: an act, occupation, or structure which is a nuisance at all times under any curcumstances

o Nuisance per accidens (in fact): becomes a nuisance by reason of location

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or the manner in which it is constructed, maintained, or operated

Public nuisance: unreasonable interference with a right common to the general public Circumstances of unreasonableness

o 1. Whether the conduct in question significantly interferes with public health, safety, peace, comfort, or convenience

o 2. Whether the conduct is proscribed by statute or ordinanceo 3. Whether the conduct is of a continuing nature or has produced a

permanent or long-lasting effect underlying basis same as priave:

o 1. Substantial harmo 2. Caused by intentional and unreasonable conducto 3. or conduct that is negligent, reckless, or abnormally dangerouso also depends on weight of utility vs gravity

Ex. If someone walking by on sidewalk and stench, can’t sue for private nuisance, bc it’s public interference

If nuisance violates a statute: probably per se nuisance Purpose: action for unreasonable interference with rights common to the general

public, such as interference with health, safety, peace, comfort, or convenience To bring suit: anyone can bring suit: but must show special injury, or special

damage, an injury or damage of a kind different from that suffered by other members

o Modern: liberalized: abatement can be brought by official, specialy injured indi, and person who ahs standing as representative of general public, citizen in citizen’s action, or representative of a class

Can still be private nuisance if interferes with a lot of owners, but in private only owners could bring suit.

Since public nuisance is about the public, anyone can sue, but usually only if the person can show “special injury” (or special damage, or particular damage)

Private Nuisance Function: protect against unreasonable interference with the use and enjoyment of

land Elements

o 1. Substantial harm to a private property interest in land depreciation in value split:

majority/modern: depreciation is exactly what nuisance is to protect against

common law: mere depreciation in value and apprehension about future nuisance doesn’t meet substantial harm test

o 2. That was caused byo 3. D’s unintentional or intentional liability-forming conduct

unintentional private nuisance Liability: D is liable for an unintentional nuisance if his or her act or omission interferes with the land use and enjoyment of the P’s land and the D’s conduct is

o a. negligent*

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o b. Reckless* o c. or constitutes abnormally dangerous activity ( this would be strict

liability case then)*o *unreasonableness is basis of negligence or recklessness, so built into test

Intentional Private Nuisance Liability: o Elements: D liable if…

1. His act or omission causes 2. A substantial interference with the land use and enjoyment of

the P’s land 3. The defendant’s conduct was intentional and

intentional conduct: if outcome is intended or reasonably certain outcome would occur

tied to foreseeability 4. The resulting interference was unreasonable (separate element

here, but built in above)o Unreasonableness and intentional Nuisance: three separate tests

1. The Threshold Test: (majority view): The harm caused by the D crosses a threshold, above which the harm

question: is level of harm above certain threshold (seems same substantial question as in above test)

2. Balancing test (torts 2nd restatement 826(1)-828): the gravity of the harm outweighs the utility of the defendant’s conduct

o factors to determine gravity of harm 1. Extent of harm 2. Character of harm 3. Social value of use invaded 4. Suitability of use to locality 5. Burden of P to avoid the harm

o factors to determine utility 1. Social value of D’s use 2. Suitability of use to property 3. Practicality by D of avoiding harm

trying to achieve efficient result by finding: cheapest cost avoider

o if gravity outweighs utility, then the P is cheapest cost avoider bc it will cost less for it to live with (or avoid) the harm than it will for defendant to prevent it (basically can get damages, easier than stopping the harm)

o if utility outweighs gravity, then the D is cheapest cost avoider because it will cost less for it to compensate for (or prevet) the harm than for P to bear or avoid the harm

THIS EXPLANATION DOESN’T MAKE SENSE 3. Alternative Restatement (826(b)): the harm caused by the

defendant is serious and the financial burden of compensating for

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this and similar harm to others would not make the continuation of the conduct not feasible

factorso ask if compensating this P and others like it would

drive D out of businesso if can afford to pay and operate: invasion not

reasonable purpose: retain efficient result: by allowing the more

expensive cost avoider (the D in this case) to continue activity, but to do so in a fair way by forcing the D to compensate P for the latter’s serious harm

policy: might have high social utility (so wouldn’t be unreasonable under 2): but also damages. Provides jobs, but still ppl who don’t have jobs that are hurt by it. So compensate as long as could still stay in business

only remedy=damages: bc injunction would shut down the important activity

hypo: D is planning to set up disposal site. Construction not yet begun. P wants injunction to prevent it, alleging it will cause sharp decline in market value

o answer: depreciating market value alone probably not enough for private nuisance action: must show another harm (like physical invasion)

site not built yet: so no injury yet Defense: court should not assume P’s predictions are accurate Traditionally: courts wont speculate in anticipatory/preventative

nuisance action Imposing liability on speculation, potential fears, no proof

or amount calculation Modern: no flat prohibition: but a high stnadard

Policyo Not just speculation: can get experts, similar

circumstanceso If wait for landfill, could be irreproable damageo Would cost everybody more to build it then shut it

down Hypo 2: after landfill built and operating. P’s property decline by 30%

o D: we aren’t negligent/reckless and didn’t intend depreciationo Question: is strict liability like trespasso No: but intentional liability forming conduct

If she can show they were reasonably certain that landfill would substantially interfere: then liable

Per Se tests: break zoning lawo Zoned for single family homes

Open industrial thing: Violation of zoning law is per se unreasonable

Opposite: comply with zoning lawo If zoned for industrial purpose: opening industrial plant, zoning would

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probably override other factors Permit given to open industrial plant

o Compliance with regulatory scheme: not determinative but quite persuasive

Problem: regulatory scheme on large scale Might bc context where compliance results in unacceptable levels

of harm Strong evidence of reasonable but not conclusive

Coming to the nuisanceo Common law: absolute defenseo Modern: Weighs heavily in favor of P to avoid the nuisance

Relevent to all three unreasonable tests But other factors might still matter So doesn’t completely bar, but is relevent factor

Boomer v. Atlantic Cements Facts: cement company operating in city. Manufacturer was wroth more than the

amount of damages. Neighborhood got damages, but no injunctive relief Court: gave permanent damages: barred future suit. Injunction until amount paid.

Actually gave option: shut down now or continue and pay damages: each cheaper in some cases

o Dissent: licensing permanent wrong. No incentive to alleviate it This costs much less than permanent or even temporary injunction

Argument against: cheaper for them to just pay than to do research and find cleaner methods

Counter: still risk this: EPA can still sueo Old rule: if damages more than $100, then injunctive relief is given

Doesn’t balance any interests Only way to avoid injunction was finding no damages (or $99)

damages Permanent damages: precludes future suits, but future residents get reduced

market value This seems to be shift from 1. Threshold test to 2. The alternative balancing test

o Modern approach: another factor in balancing equities 1. Ability for court to fashion injunction: practicality of writing out

injunction and monitoring it here: afraid to fuck up science of injunctive relief

2. Toleration of air pollution v. benefit of industry best left for legislatures/admin agencies if want to regulate affect on parks etc, agencies can sue

o if paluted more or differently: P might have future claim

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V. PRIVATE LAND USE RESTRICTIONS3

Affirmative Easement: a right to use someone else’s land for a particular purpose exceeding beyond scope: remedy: injunction to stop going beyond the scope

and/or damages for reduction in value as a result of excessive use

Profit a prendre: (affirmative easement plus) a right to take things off someone else’s land that are considered to be a part of that land

if exceed interest given: sir charging the profit: extending it beyond the scopeo remedy: forfeiture: bc more permanent than exceeding easement

Negative Easement: an agreement that prohibits one person from engaging in what would otherwise be lawful conduct on his or her own land

like I won’t dig whole

Affirmative real covenant: a promise by one person to do something on his or her own land that he or she would not otherwise be required to do

Negative real covenant: a promise not to do something on one’s own land that otherwise would have been permitted

like promising not to open store very close to negative easement

o common law differento 3rd restatement says eliminate difference: treat everything as real covenant

distinguishing between Negative Easement and Negative real covenant o 1. Mannor of creation and language used to create it

negative easement: words like grant, convey,: property based negative real covenant: words like promise, contract: contract

basedo 2. Subject matter of restriction being agreed to

traditionally: negative easement only for narrow range of restrictions (blocking access to light, interfering with flow of artificial stream, interfering with support)—more like property changes: beyond these: couldn’t be negative easement

American courts more flexible: still property based changes Ex. wont devote to commercial: then couldn’t be negative

easement Today: treat them as congruent, call them whatever you want

Equitable Servitude: a real covenant (affirmative or negative) that is specifically enforced by a court in equity

Asking for equitable relief (like injunction) rather than damages, then P will try to enforce. Otherwise same as affirmative or negative covenant

o But in those cases: asking for damages

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Benefits v. Burdens the benefit of a nonpossessory interest in land is the right to use land owned or

possessed by another the burden of a nonpossessory interest in land is the corresponding restriction on

the owner or possessor’s use

Appurtenant v. In Gross Servitudes a benefit is appurtenant if it relates to and is intended to benefit a particular

parcel of lando enhances land value

a benefit is in gross if it is meant to benefit an individual, not in connection with his or her ownership or possession of any particular parcel of land

o enhances personal interest rule: presume easement is appurtenant if the conveyance is silent on it

o running: if create a appurtenant affirmative easement, benefit of affirmative easement runs with the dominant estate (gives right to whoever own the parcel): usually transferable. Passes with dominant estate unless states to the contrary

Dominant v. Servient Estates the dominant estate (or tenement) is the land benefited by an appurtenant

nonpossessory interest (usually an easement) the servient estate (or tenement) is the land burdened by a nonpossessory interest

(usually an easement)

running with the land: if the burden (compliance) or benefit (right to enforce the obligation) runs with the land (if successors can enforce/are bound by it

Considerations in choosing between possessory or nonpossessory interests manner of enforceability transferability durability marketability

o don’t want interests to disappear (bc then bank wont accept loans on it etc)o long fee determanible things aren’t as easy to market (bank worried

interest will disappear on them). Less objectionable for negative real covenant: bank’s interest won’t dissapear

Hypo: A lives next to B, never wants commercial shit next door. How to do this? B affords a negative covenant to A by promising he will never devote land for

commercial purposeso Set it up so burden runs

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B conveys land in fee simple absolute to A. A reconveys to B of fee simple determinable to B with reversion on condition subsequent (opening store)

o But if A wants successors (so needs it to be transferable) to be able to enforce, can’t sell reversion:

o So do it through negative real covenant

A. Easements

Easements are interests in real property Must comply with SoF: in writing and signed by party to be bound thereby If oral agreements to create easement: creates revocable license instead (not

regarded as real property interest)

1. Methods of Creation

Holbrook v. Taylor Facts: P had been allowed to use road, during construction, and then at a certain point

not allowed. Had actual approval before Issue: if road had been used by claim of right or by permission? Rule: since had actual approval, then allowed to keep using it, license turns into

easemento Established easement by estoppel

X has lot C in FSA X has license to road and to build path (licenses are revocable):

Not valid easement bc easemetns are real property interest. SoF problem: if attempting to create affirmative easement, but don’t put it in writing, then it’s a license

Licenses are so precarious, not regarded as real property interest License Revocation Means

o Expressly: in original document creating the license, like if x happens, license gone

o Unilateral: by licensor: can just end it, absent any other consideration

o By operation of law if… 1. Licensor dies 2. Licensor’s conduct is inconsistent with

continuation of the license (like writing a letter or blocking or something)

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3. Conveyance of the servient estate by the licensor (same situation as death)

4. Attempted conveyance of the license by the licensee (tries to sell license alone or as part of FSA of dominant estate)

o Can convert the license into easement by building path Around SoF: through promissory estoppel Once X makes improvements: he’d win

depends on state minority: license revocable at pleasure of licensor: if licensee spends money, he does

so at his own risk: so P prevails (bc when conveyed, license gone) Holbrok: licensor can’t revoke once licesnsee has erected improvements at

considerable expense that were part of licnese agreements: X wins o Once make improvements, license turns to easement. o X wins by estoppel

Court cited: law recognizes one may acquire a license if, with the knowledge of licensor, licensee makes improvements

Original revocable license becomes irrevocable by estoppel: X’s reasonable reliance converts a license into an affirmative easement (becomes an easement)

o P got burden of affirmative easement, bc transferred from O

Depends on courto Could imply by necessity (if only way in and out)o Or like #3: O did nothing, watched him build

But harder argument: bc it’s tough to say reasonable reliance on nothing

Some courts: O watched, it counts Others: no explicit promise, so no reasonable reliance

Irrevocable License by Part performance: A revocable license held by B over A’s land can become irrevocable by part performance if B’s performance provides evidence that…

1. an intent to convey to B an appurtenant easement

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2. that A would not have the right to revoke theory: B’s performance of oral contract substitutes for the written document that

normally provides evidence that the parties reached an agreement to grant easement example: B gets (oral contract) deal from A to build road. B only has a license, but

when starts building, it becomes irrevocable. Serves the function of SoF for evidenceo court has to believe: both parties intended to convey: will only enforce the

deal the parties agreed on. (won’t speculate on what agreement would be)o only plausible explanation for B to build road is specifically for irrevocable

use: enforce the dealIrrevocable Licenses by Estoppel: a revocable license held by B over A’s land can become irrevocable by estoppel if…

1. B believed that A had granted to B an irrevocable easement2. B relied on that belief to her detriment (like spending money to maintain road)3. B’s reliance was reasonable; and4. A should have foreseen B’s reliance Theory: nto fair to B to allow A to revoke under these circumstances

Willard v. First Church of Christ Facts: 2 lots, original owner sold hers to owner of the other (on condition church

could keep using it as a parking lot). Original owner (of the other lot) sold both to P without clause

Common law rule: one can not reserve an interest in property to a stranger to the title Today: look at intent of grantor, conflicts with old rule, get rid of it new rule: restatement 2.6: a grantor may in a deed to real property, reserve an interest

in that property for third parties Willard: tries to argue new rule shouldn’t apply bc he relied on old rule

o But no evidence he did, didn’t read the deed.o Apply balancing test if old rule applies: policy and equity

No reliance, no problem of ancient title Got lower price bc of reservation

So Willard would get more than he paid for if don’t apply Balance in favor of grantor’s intent

Reservation: creates some new servitude which did not exist before as an independent interest

Exception: provision that excludes from the grant some preexisting servitude on the land

Regrant: an easement reserved by the grantor was not a reservation but a regrant of an easement by grantee to grantor

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Original common law: no: there was no easement before the grant, bc O owned lot C, so didn’t have easement to cross, bc easement is right to use someone elses land

o So prior to deal, there could be no easemento Can’t reserve an easement: bc the easement did not exist at time of grant

But courts: want to preserve intent: regrant theory: O conveyed FSA to X, X simultaneously reconvays the easement across back to O

o Easement reserved is not a reservation, but a regrant SoF problem: must be signed by party bound thereby

o Only grantor signed the deed, regranter never did. BUT: when X accepted the deed, allowed O’s signature to count as though it was his

NO: common law did not allow reservation in third partyo But policy basis: with feudal notions of conveyance in land: that’s gone, so

get rid of it And not their intent: how to make it work?

o 1. Estoppel doctrine: X accepted deed, including Y’s interest, must accept whole thing, basically meets all parts of estoppel

o 2. Purported reservation created trust in favor of Y: X is trustee, must allow Y to do so, otherwise abusing fiduciary duty

o 3. Willard Case: just implement the intent as written abolished rule retroactively: but still fair because

1. McGuin (original owner of lot in question) first conveys to church in FSAo church then conveys to Peterson (owner of lot 2), with reservation to self

under regrant theory, allowed for a while now

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2. MGuin conveys to perterson, Peterson conveys to church express grant of easement

3. McGuin to Peterson in Fee Simple Determinabe (so possibility of reverter, if don’t allow use of land of church)

o then Peterson could only convey to Willard the fee simple determinableo but ppl don’t like doing this shit

Creation of Implied Easements Easement by Implication (Easement by prior use): creating an implied easement

by previous useo Requirements

1. Intitial unity of ownership of alleged dominant and servient estates

2. Apparent and continuous quasi-easement in existence at the time of severance of the alleged dominant and servient estates

3. Easement following severance was necessary to full enjoyment of the alleged dominant estate

o function: carry out the intent of the parties to the transaction that resulted in severance of the alleged dominant and servient estates

Van Sandt v. Royster facts: all land was owned as one estate, build sewage drain under P’s land (new

owner), then conveyed various times without conditions trial court: there was appurtenant easement between the properties

o problem: easement can’t exist through own land: bc it’s right to use someone else’s land

but often: use part of one’s land for benefit of another: qausi easement benefitting part=quasi dominant part utilized=quasi servient

o rule: when owner sells quasi dominant tenement, easement corresponding to quasi easement is vested in grantee, provided that quasi easement is of an apparent, continuous, and necessary character

o rule part 2: when owner sells the quasi servient part, implied reservation of an easement in favor of the conveyor

majority of courts: easement by implied reservation in favor of the grantor, the easement must be one of strict necessity

o restatement: has a bunch of factors P’s property was bought with knowledge of the sewer, knew it was for benefit of D’s

estate, was necessary for comfortable use and enjotmento Not strictly necessary, but alternative takes disproportionate effot/expsnce: so

easement can still be found by necessity

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B argues Implied easement based on prior use prior and continuous use Necessary for enjoyment

o Equity concern here: unjust for buyer to pay for inaccessible lando Efficiency concern: waste of land otherwiseo Most important factor: carrying out the intent of parties

Nothing in deed, but wouldn’t buy land without it So must have been intent Necessity shows intent: but can be counteracted or other evidence of

intent Restatement factors

o Whether the claimant is the conveyor or the conveyee

o The termso The considerationo If claim made against simultaneous conveyeeo Extent of necessity of the easement or the profit

to the claimanto Whether reciprocal benefits result to conveyor

and conveyeeo Manner the land used prioro Extent to which the manner of prior use was

know to the parties

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A argues his intent was to preserve the quasi easement: otherwise wouldn’t make conveyance

But this isn’t easement by implied grant, it’s easement by implied reservation (grantee got less than fee simple rather than more (above))

Jurisdictional split: when implied reservation rather than implied granto Traditional English common law: implied grant fine, implied reservation

not allowed Policy: difference is knowledge, A knows the information, therefore

not excuse not to put in grant (B might not know all of the elements) Won’t imply it, bc A was in position to put it in When ambigious deed, construe against the grantor

o US courts: no complete bar for reservation of implied easement based on prior use. But is more difficult

Reserving Implied easement by prior use: requires strict necessityo However: Van Sandt: necessity is just one way to

show intent: if other evidence shows intent to create implied interest sufficiently clear, won’t require strict necessity

Other factors 1. Evidence of quasi easement before

severance: frequency and exclusivity of it: more the stronger intent

2. Evidence of necessity: how necessary was right of way at time of severance (more necessary more intent)

balancing: one can make up for another Where as implied grant of easement by prior use: just

reasonable necessity

Default: purchaser of servient estates takes subject to easement o So if easement by implied reservation based on prior use: then C stuck

But C might not know he was getting less than what appeared on deedo When C looks through deed, won’t find easemento C relies in good faith to written deed, thinks he’s getting unburdened estate

Issue: does C qualify as a Bona Fide Purchaser? Then wont be stuck with it

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o Fairness: if C didn’t know or have a way to know, paying more than what he’s getting. Not fair C is burdened by agreement he never knew about

Bona Fide Purchaser: can’t have notice: any of these 3 possibilitieso 1. Record Notice: if in record: C should know, so not bona fide purchasero 2. Actual Notice: like if B tells him there’s an easemento 3. Constructive or inquiry notice: not bona fide purchaser if should have

inquired even if not clear, some cases you should ask questions or if there’s path well traveled, probably should know

Creation of Implied Easement II Easement by Necessity

o Requirements 1. Initial unity of ownership of the alleged dominant and servient

estates 2. Easement is necessary now to full enjoyment of the alleged

dominant estate 3. Easement following severance was necessary to full enjoyment of

the alleged dominant estateo function: promote public policy that land not be inaccessible, because

inaccessible land is unproductive, inefficient Othen v. Royster:

o Facts: original, owner had large plot. Sold in pieces. First sold 100 acre plot. But fails requirement 3, don’t know if it’s necessary since other ways out.

o Burden falls on person claiming dominant estate o So when sold second lot (perhaps making it necessary), can’t create an

implied easement: bc then no unity of ownership Can’t create implied easement over someone else’s land (reason of

unity of ownership)o Othen lost: bc failed to show he couldn’t have gotten out another way. And

tehn fails on other ways because no unity of ownership Easement by necessity could override party’s intent

o But when overriding intent: need higher necessityo Some courts: in easement by necessity: require strict necessity

In Oethen: seem to apply level of necessity to #3 requirement as well, logically just to #2 necessity

Implied easement by necessity continues only as long as is necessary

Necessity Hierarchy Implied Grant (easiest): prior use implied easement Implied reservation: prior use implied easement Implied grant: easement by necessity Implied reservation (hardest): easement by necessity

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Hard to show necessity again: same requirement. But maybe with balancing (not strict necessity even though his estate was the reserved one): could show it

Also hard to show there was quasi easement before: testimony of previous owner

#3. Fail on requirement #3 of either theory: bc not necessary following severance: bc had a license

#4: same problem: wasn’t necessary. And carry out intent of the parties, specifically said revocable license. That was intent, so can override other requirements

go throught the elements but still check for underlying function: intent or public policy

o #4: inconsistent with intent of parties

yes: otherwise couldn’t get to land. Easement by necessity despite intent

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o maybe C must pay for easement: rewriting the deed so compensate for getting more than bargain

By Implication: by previous useo Hard to say scope includes trucks: bc trucks weren’t used at the time of

easement: couldn’t intend to use it that wayo Counter: don’t take literally: reasonable way in and out: that’s what truck is

Under Oathen: by necessityo Good for productive use: probably an easier case

Depending on theory: implied easement by necessity would end when no longer necessary

By prior use: subsequent events have no effect

Prescriptive Easement: adverse possession of a use right: (not a possessory right) Elements

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o 1. Actual useo 2. Adverse/hostile use

majority: absence of permission/consent by true owner. Even if owner is using the easement, can still be hostile

implicit consent: knowledge of the use by owner without stopping=implicit consent: so not adverse

minority: concurrent use gives rise to presumption of hostility, which the servient estate owner must disprove (owner must have know about the use and failed to take action)

o 3. Open and notorious useo 4. Exclusivity: requires excusive use of the easement, not of the property as a

whole effect: lack of excusive use may affect interpretation of the hostility

requirement (if there is concurrent use, court may find implicit consent, so no hostility)

Page v. Bloom: means different thing than in adverse possession: o 5. Continuous and uninterrupted: statutory length requirement: SoF

requires reasonable use: in way normal person would use easement restatement view: to disrupt continuity, owner of servient estate must

effectivel disrupt the adverse use (adverse use stops or owner gets cour ordered decree): otherwise, use is merely interrupted: which is not effective)

o 6. Scope: defined by manner of use that first gave rise to the prescriptive easement and what servient owner might reasonably expect to lose by failing to interrupt the adverse use (e.g. horses may not include care)

use of prescriptive are not confined to the actual uses made during the prescriptive period, the uses made of a prescriptive easement must be consistent with the general kind of use by which the easement was created and with what the servient owner might reasonably expect to lose by failing to interrupt the adverse use

assume a prescriptive easement: what’s the scope?o Original: walkingo Car: rescriptiono Pick up: maybe slight rescriptiono Heavy machinery: probably beyond scope

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Negative Easements: the right of the dominant owner to stop the servient owner from doing something on the servient owner’s land

Presumption of appurtenance applies England

o Only four subjects that can have negative easement 1. Flow of light 2. Interfering with air flow 3. Removing support for building 4. Interfering with flow of artificial stream

Americano More expansive view: including scenic easement (SF bay)o Sun for solar power

If there’s also a zoning rule on same topic: stricter rule applies Implied negative easement: courts very reluctant to find by necessity or by previous

useo hard to find intent or necessity

Prescriptive Negative Easement: US courts will not recognize negative easement by prescription

o Not doing something can’t be adverse to owner. Not an infringement on their rights. Not open and notorious. Not promoting the policy of more productive use

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A prevails: has valid negative easement Effect of sale: none: because it was appurtenant, ran with the land:

In England: doesn’t meat one of four categories. In America, might allow scenic easement

Must argue easement by necessity or previous use. But bull shit, bc otherwise negative easement on everything you can see.

B: same as above. Otherwise leaving land blank would always create this stuff. US courts wont recognize negative easement by prescription

2. Transfer, Scope, and Effect

Attributes of Appurtenant and In Gross Easement Appurtenant Easement

o The burden of the easement passes automatically to the purchaser of the servient estate (provided he has notice)

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o The benefit of the easement passes automatically to the purchaser of the dominant estate

In Gross (EIG): (no such thing in England, just get revocable license) o The burden of the easement passes automatically to the purchaser of the

dominant estateo By definition, there is no dominant estateo Assignability

Traditional: only commercial EIG were assignable Modern (restatement/majority): all EIG are assignable, assuming the

parties to the creation of the EIG intended it be assignable. So no flat rule, look at particular one

o Divisibility Traditional: yes: but must be exercised as “one stock” (each holder

has a veto power over attempts to use by other holders) Modern view: yes, if creating instrument says so or if the EIG is

exclusive And not gonna be gone if unreasonable new burden on

servient estate: bc that will not be in intent of parites Basically: presume you need universal agreement, but can

contract around it

Miller v. Lutheran Conference and Camp Ass’c Facts: Miller: got boating and fishing rights by grant from corp. Got bathing rights be

prescriptive easement. Gave ¼ share to brother. Brother tried to sell to Lutheran Issue: was assignment of ¼ rights validly assigned to D Rule: rights cannot be assigned without consent of all the parties, act as one

o So assignment to Lutheran not valid Court looked at language: words from company: “his heirs and assigns”

o So allowed assignability of easement in gross So question became: was it divisible? Could ¼ interest be further divided Court: NO: can’t subdivide without Frank’s estate Rule from case: co-owners of easement in gross have veto power over each other in

further division of easement in gross: so attempted assignment failed. (seems to be for assignment too

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Yes: appurtenant: runs with land. Has the burden

Depends: if conveyance in gross: doesn’t run with the land But presume appurtenant: but can be different if could show intent otherwise If purchase dominant estate: get benefit. If purchase servient, get burden

In gross

Does burden of easement in gross attach to the servient estate? Yeso Burden of easement in gross attaches to servient estate

Must have notice: otherwise could qualify as bna fide pruchase

England: NO: no such thing as EIG: when try to create: just get revocable license. When attempt to sell it, disappears

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o Policy: reduces land value of servient estate without increasing value of any other estate

America: can assing: but depends on factors: like intent, commercial or not, etc

1. Commercial nature: boating and fishing could be commercial, can more likely transfer

o some courts: benefits of commercial easement in gross=assignable. Personal enjoyment=not alienable

2. Intent of parties: hard to know intent above: could be personal thing, not meant to be assigned

lake. Why not?

Must have Intent to be alienable: rather than intend just for benefit of F. recreational usually not intended to be assignable

H has profit a prendre in gross. Bc not about dominant land but his ability to do so

Can be made assignable: look at intent, in commercial, etc Profit a prendre in gross can be made assignmable: see intent

scope question: seems lumber company has exceeded the scope of proft in gross that was given to H

o look to written doc. If ambiguous, look to circumstances if intent: only to cut a few trees: then I is sir charging the profit: extending beyond

the scopeo remedy: lose right to it: forfeiture

can’t make owner whole

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not forfeiture: bc not as permenant. Injunction to stop excessive use and/or damages for reduction in value

Brown v. Voss facts: Brown owns lot B and C: Voss owns lot A. Lot B has appurtenant dominant estate

in easement for access over lot A. Lot C doesn’t. want to use road to access single family home on boarder of two plots

rule: easement appurtenant to one parcel of land can’t extend to other parcels owned by him, whether adjoining or distinct tracks, to which easement is not appurtenant

o easement by express grant: construe to give effect to intention of partieso any extension of that is misuse: but just bc there was misuse, doesn’t mean

injunctive reliefo it’s equitable rule: can shape injunction to facts: for injunction: need actual and

substantial injury sustained by the person seeking injunction but they excepted the rule here

o bc granting injunction, hurts Brown a lot. Denying it, doesn’t hurt Voss at all (bc no increased traffic or anything, same use)

dissent this is a misuse: it’s a trespass, and a continuing one. Difficult to shape damages, so

make it an injunction. Doesn’t matter that no moreburden. It’s responsibility on Brown, they should have looked it up, balancing equity help innocent party. And Voss could have gotten more money if allowed C as well

and could get easement by necessity over existing easement if need by

Extento Of who and the purpose. Like for passanger cars, o If want/don’t want utility lines

Duration: probably gotta make it appurtenant, but this is default ruleo Use it as a selling point. Make it determinable: if they fuck up, it’s gone

Specify where: ID everything Could add duty to maintain Scope: especially after Brown Case

If X buys lot D: can he connect to get there too? Brown: Yes Restatement: No

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Traditional: can only use right of way to get to land identified as dominant estateo If it’s physically possible to get from part that’s dominant estate to non

dominant, have to make it impossible: because otherwise nothing will stop you

o Brown case: said if degree of damage minimal: just allow it Can put a clause to get around B: to get to C and no other land

Owner of Dominant changing plot rule: restatement Holder of easement is entitled to use in manner that is reasonable necessary

for the convenient enjoyment of the servitude Manner, frequency, and intensity of use may change over time to take

advantage of developments in tech, and to accommodate normal development of the dominant estate or enterprise benefited by the servitude.

Unless authorized by the terms of the servitude, the holder is not entitled to cause unreasonable damage to the servient estate or interfere unreasonably with its enjoyment

But for Prescriptive easement: not not as broad as if created by grant, implication, or necessity

Not condined to actual use during prescriptive period: but consistant with general kind of use by which easement created and what the servient owner might reasonably expect to lose by failing to interrupt adverse use

Holder of easement of way: can’t install above/undergropunt utilities: not foreseeable

Location of easement: once fixed, can’t change by servient owner without permission of dominant

But restatement: servient owner can change location at his expense if…o Change does not significantly lessen the utility of the easement o Does not increase the burdens on the owner of the easement in its use and

enjoymento Or frustrate the purpose for which the easement was created

3. Termination

Presault v. US Facts: RR turned to hiking rail by rails to trails act. But RR stopped being a RR 10

years earlier Issue: saying conversion amounted to a taking without just compensation. Want value

of property which gov took from them by approving this use 3 points here

o 1. Creation: what interest did RR originally have if fee simple: P loses, can do whatever you want with it language: looks like FSA court: despite normal interpretation: call it an easement: bc Vermont

cases: conveyance to RR vests RR only as large estate as is needed for RR purposes: easement (other courts would say only apply this when deed ambiguous

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o 2. Intent: move ppl and stuff around for commercial purposes. Right of way but not for path

200 ppl an hour walking: different than what bargained for default rule: scope of easement is what could reasonably be foreseen

at time easement was created: couldn’t foresee this: when ICC approved for hiking, it was unauthorized use, so it’s a taking

o 3. Termination even assuming scope wide enough: is it still in existence Abandonment: mere non use of easement is not abandonment. Also

requires act that unequivocally manifests intent to abandon easement Removed rails and switches. Didn’t tear up bride, but why

would they? Would just cost more Fees paid to RR for driveway crossing? That was just cheaper than

going to court before

2 easementso right to not get suedo right to cross

abandonment? Non use + clear intent to abandon: WDI said they wouldn’t use anymore

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no: when land merged, the easement disappears

X: by prescription

Means of Terminating an Easement Explicitly: the original grant document specifies a termination date or by subsequent

relies By abandonment

o Nonuse is not enough (in some jurisdictions, nonuse for entire period of SoL is enough)

o There must be nonuse + acts by the owner of the dominant estate that “unequivocally manifest” an intention to abandon

By estoppel By merger By prescription

B. Covenants and Servitudes

Covenants: Land use contracts came about bc could have very few negative easements in England ex. A and B make deal not to use land for commercial purposes

o do these run with land for owners of dominant and servient? We’ll see

Promises that relate to land use: thus called negative real covenants like negative easement, but broader range of possibilities

And promises that require someone to do something on their land: affirmative real covenants

not an easement: bc easements allow someone else to do something on your land. This is you required to do something on your land

three main questions trying to enforce against successor of promisor ( does burden run?) trying to enforce on behalf of original promisee (does benefit run? Is relief legal or equitable?

Four combinations possible when sale 1. when does burden run at law? (82) 2. When does burden run at equity? (85) When does benefit run at law?

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When does benefit run in equity?

1. Creation and Effect

1. Covenants Running of the burden at Law: Requirements:

o 1. Valid original contract between original promisor (X) and original promisee (O) under normal contract law rules

o 2. Notice by successor (Y) to original promisor a. actual notice

like in deed: convey subject to agreement copy attached to deed

b. constructive (record) notice record notice, ask someone, etc

o 3. X’s promise must touch and concern the lando 4. Intent that the burden run to successors to the original promisor

explicit reference is best way but court will accept other ways to show intent

nature of parites subject matter of covenant look at extrinsic evidence

o 5. Privity of estate a. horizontal Privity b. vertical Privity

common law rule: burden of real covenant didn’t run if benefit was in gross (unrelated to ownership in land by original promisee)

o applied to all real covenants at law and equityo another way to say: burden doesn’t run if benefit doesn’t touch and concern

the lando rationale: burdens land without benefiting another piece: net decrease

minority: allow enforcement of these

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The Horizontal Privity Requirement for Running of the Burden at Law (so between O and X)

1. Traditional English view: landlord tenant relationship (or tenurial relationship: ex. like life estate conveyance with a reversion) between original promisor and original promisee, nothing else

2. Massachusetts Testo a. tenurial relationship oro b. simultaneously existing property interests by original promisor and original

promisee in the same land (apart from the covenant) examples: any conveyance of present possessory estate with reversion

(LL/Tenant; life estate) some other shared interest: like share land/beach: whatever they

shared: easement and fee simple interest, whatevero reasoning: productive use, don’t want to restrict it: lowers productivity

3. First Restatement (majority)o a. Massachusetts test oro b. the covenant accompanied the transfer of a property interest (other than the

covenant) between original promisor and original promisee (i.e. grantor/grantee relationship at time of execution of covenant)

4. Clark/3d Restatement: no horizontal Privity required broad or narrow construing horizontal Privity: depends if court likes real covenants or

noto if benefits society: expansive view: can runo if detrimental to society: try to eliminate: say don’t run with the land, limit

ways they can can fit through strawperson:

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o example: neighboring lots: won’t have grantor/grantee relationship: so won’t be able to do this: so sell both lots to strawperson: create covenant in a grant back

Vertical Privity Requirement for Running of the Burden at Law (So between X and Y) 1. 1st restatement: the successor to the original promisor must hold:

o a. the same estate as the original promisor or like whole property interest given

o b. an estate of the same duration as the estate held by the original promisor 2. 3d restatement

o a. for negative covenants: vertical Privity requirement goneo b. affirmative covenants: the successor to the original promisor must:

i. hold the same estate as original promisor ii. Have acquired the original promisor’s land by adverse possession

or iii. Be a tenant of the original promisor, provided it is more

reasonable for the tenant than the LL to perform the covenant o 3d restatement for horizontal Privity not exam

purpose: don’t want to stick ppl with obligation they never agreed to.

For X to enforce against P: need to meet running of the burden o Horizontal Privityo Vertical Privityo Intento Touch and concerno Noticeo Valid original contract

Tulk v. Moxhay (English case) Covenant: Tulk sold land Moxhay’s predecsor (Elms). Tulk stayed as neighbor.

Included was promise to maintain garden for predecessor. Then Moxhay trying to build there

Can’t be an easement: bc not in negative categories of Englando and can’t be an affirmative easement: bc not P allowed to use land, it was D

required to keep garden/not build there So Tulk has to show running of the burden at law

o Valid original contract: checko Notice: checko Touch and converno Intento Privity

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Horizontal: problem: only LL/Tenant counts as horizontal Privity Moxhay can’t be sued: bc no horizontal Privity between Tulk

and Elms (original buyer) Vertical Privity: not a problem (same estate) So fails at law: bc no horizontal privity

But won: at equity: bc wanted injunctiono Can enforce against Moxhay same as he could against Elmso Bc Moxhey got land for cheaper based on servitude, other result unfair (bc

then Elms could flip land and regrant to self, wouldn’t have burden)

2. Covenant Running of the Burden in Equity Requirements

o 1. Valid original contracto 2. Noticeo 3. Touch and concern (same tests as at law: but looser in equity)o 4. Intent

English courts: limited equitable servitude for negative covenantso Bc affirmative real covenants not enforceable in England: except against

original parties (bc normal contract law)o So must frame as negative real covenant to enforce

American Courts: extended to affirmative as well as negative covenantso 3d Restatement: wants to abolish distinction between at law and equity: no

courts follow yet but easier to enforce covenant servitude in equity than in law

traditional rule: running of the burden of a real covenant does not run if the benefit is in gross

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Touch and concern (same tests as at law: but looser in equity)o Another way: is legal interest in land more or less valuable bc of covenant:

Enhancement of value of dominant estate, and decline in value of servient estate

But circular: o tests

Clark Test: whether the covenant affects the legal relations of the parties to the covenant as owners of particular parcels of land and not merely as members of the community in general (i.e. does the covenant relate to land or is it merely personal obligation)

Bigelow test: whether the promisor’s legal interest in the land is rendered less valuable by the promisor’s performance and the promisee’s legal interest in the land is rendered more valuable by the promisor’s performance (inhancment of dominant estate, decline in value of servient estate)

But this is circulate 1st question: burden of covenant runs with the land if it

touches and concerns the land touches and concerns: if it affects promisor’s legal relations as

owner of land (bigelow test) affects legal relations: only if it runs with the land (1st

question) Reasonable Person Test: whether a reasonable person would regard

the covenant as intimately bound up with the land, hampering the promisor and aiding the promisee as landowners

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Neponsit Test: whether the covenant in purpose and effect substantially alters the legal rights which otherwise would flow from owners of the land involved

o Rationale Limit number of covenants that burden land after sale Efficiency: limit number of covenants that decrease land value: so

covenant will only run if it touches and concerns: only touches and concerns if increases value to promisee’s lot at least as great is decrease value in promisors lot (tests don’t really make sure of this): but at least some benefit

Fairness: increase likelihood successors are aware of obligations that they get if it relates to the land: so ppl know if they buy the land, they’ll be stuck with it. More likely if it’s intimately bound up with land

o Affirmative Covenants that traditionally met the touch and concern test 1. Promises to repair fences on boundary lines 2. Promises to repair driveways or roads 3. Promises to maintain railroad crossings 4. Promises to build or maintain party walls 5. Certain promises to pay money

those which money will be used to benefit the brudend low itself (all jurisdictions allow):

some related property interest held by the owner of the burdened lot: a lien

Yes: broke covenant. Breach of contract

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Running of the burden at law

Neponsit Property Owners v. Emigrant Industrial Savings Banks Facts: deed to D’s predecessor said pay $4 for maintenance of sewers, roads etc. The

covenant expressly states that it shall run with the land. P never owned the land in question

Issue: does this meet touch and concern requirement? Rule: Privity exists in substance if not in form for an association that is comprised of

property owners to advance their common interest Explanation: enjoyed benefit of the maintenance, including land not conveyed in titel

by the payment. Distinction between this benefit and touching or concerning is not distinction of substance, just form. P acting as agent of property owners and advance their interests. Therefore members of property owners association have right to enforce the covenant

Equity can choose substance over form: where requirements not technically met

Yes: before: X could do anything on land. Now, X can’t build store: restricts land use

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This is flipped picture: O promised to build dock to X O sells to P: does P have to build dock? England: NO: no running of burden of affirmative covenants American: depends on Court

o NY: burden of affirmative covenant does not touch and concern land, therefore cannot run

Rational: burden on new ppl, detrimental impact on value of burdened land. If breach, how do you enforce? Like what counts as building a dock.

o Other courts: Limit what’s accepted: for touch and concern to allow running of burden of affirmative covenant

1. Promise to repair fences on boundary lines 2. Promises to repair driveways or roads 3. Promises to maintain railroad crossings 4. Promises to build or maintain party (joint) walls 5. Certain Promises to pay money

like action to foreclose a lean: foreclosing lean is technically an equitable relief

must show these are in one of the 5 affirmative covenants that runso certain agreements to pay money: going to maintain driveway and dockso seems to touch and concern

enhancing value of property C benefirts from the payment too In these cases: Nepansit like: NY would recognize

Rule: Promise to pay money (like annual maintenance fee): will touch and concern (even in NY) if money being used to benefit the burdened lot itself or some related property interest (like an easement on road, dock, etc)

o But amount of money at stake must be reasonableo Benefit can’t be out of proportion compared to cost

Duration will also effect willingness of court to find touch and concern: if self –expiring, more likely to say touch and concern

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Invoking Equity: If unsure as to law or equity, want to get in equity: bc looser touch and concern standard: so make it look like a lien

Example of what to include to make it in equity: lien: “Every lot owner has the responsibility of keeping the front yard mowed. In the event an owner fails to comply with this responsibility, O has the right to enter the lot and mow the lawn. The cost of such action will be added to the annual maintenance fee and will be secured by a lien on the lot owner’s property

o Since a lien, it’s in equity. Since in equity, easier to get touch and concern

Running of the burden: liability of X after transfer: Is X still liable for payments? A bit like LL tenant Privity shit

Courts more willing to enforce affirmative real covenant against original promisor (they can do the thing) than negative real covenant (bc then they have to prevent the thing)

Can original Promisee (benefit side) continue to enforce after selling the benefited land General rule: (1st Restatmenet): No Exception: yes, if the original promisee is under a legal obligation to ensure

performance of the promise by the original promisor Example

o X sells lot 1 and lot 2 to A and Y. In deed to Y, X promises Y that X will guarantee that A performs her promise to restrict lot to single family home

Theories for enforcement by someone other than the original promisee 1. Property law theory # 1: running of the benefit theory

a. Law and equity the same here2. Property law theory # 2: reciprocal negative easement theory (McClain Case)3. Contract Law theory: third party beneficiary theory (Snow v. Bandan)

RUNNING OF THE BENEFIT THEORY

Requirements: same for law and equity

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o 1. Valid original Contracto 2. Touch and Concerno 3. Intent

either explicit or from circumstanceso 4. Horizontal Privity: Noo 5. Vertical Privity: Yes?

Majority: Successor to original promisee: need only have succeeded in some interest once held by original promisee

Ex. like bought property: has the fee simple Minority: don’t require any vertical Privity: person just 3rd party

beneficiary

Requirements Running of Burden at law

Running of the burden in equity

Running of the benefit both at law and in equity

Valid original Contract

Yes Yes Yes

Notice Yes Yes Not an issue: bc if you’re plaintiff you know about it

Touch and concern Yes Yes Yes: but courts more relaxed when question is benefit running

Intent Yes Yes Yes: that benefit should run to successors

Privity (horizontal) Yes (except 3d restatement

No No

Privity (vertical) Yes (except for negative covenants under 3d restatement

no Yes?: but easier or not requirement at all

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2. Termination

intent: explicit that benefit should run: so intent thereo but can find by extraneous circumstanceo like lots of lots have same condition: so everyone understood the whole

community is single family residence homeso alternative explanation?

Only to help O sell, not to benefit everyone But usually: assume this condition will be to benefit all

Touch and concern: yes: won’t be annoyed by industrial shit Privity

o Horizontal: not necessary (1st restatement and accepted Vertical Privity: yes: got that piece from O

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When L-1 enforcing against A: make it easy: bc A made the promise When L-1 enforcing against B: burden and benefit must run, make it run

then Neponsit case.

Weaker: because no explicit reference to benefit On question of vertical Privity?

Stronger: actual covneyence to P, rather than in Neponsit as associationo 1. Either jurisdiction didn’t require vertical Privityo 2. There was vertical Privity between lot owners and neponsit, and

association acting as agent

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relaxed standard: and store could depreciate value of park, add smog or something

yes, unless deed restricted. Have all the elements

THEORY #2: Property law theory # 2: reciprocal negative easement theory (McClain Case): (should really be called reciprocal real covenant theory)

Basis: enforcement of implied promise by the developer to impose similar restriction’s on all lots as they are sold, including lots still owned by the developer at the time of the sale of the allegedly benefited lot

Must start with a common owner Elements:

o 1. Implied promiseo 2. By original unitary ownero 3. And subsequent owner has notice

How do we imply promise?o From: common plan or scheme of restrictions

Majority: imply negative restrictions from general plan Ex. sell 9/10 lots with burden, implies lot owners

benefited/burdened by reciprocal promise Some courts (cali): only way to imply promise is express reference

to plan in deeds themselves Every lot doesn’t need to be restricted: but more restricted the better (sunborn:

only 60/100) Notice: if B doesn’t have notice, then bona fide purchaser: so nto bound

o McClean: were even told they were not bound, but still counted as notice Even if searched deed wouldn’t find notice

o Constructive notice: see other shito Inquiry notice: would notice no commercial use in subdividsion: should

have put them on notice: may be restriction on all lots Massachusetts: don’t have this: bc reciprocal negative easement must match

SoF: implied ones don’t satisfy: so this theory doesn’t apply

Sanborn v. McClean Facts: sold 86 lots without residential restrictions. Other lots did have

restrictions (some sold with restrictions first). Title of unrestricted lot passed to D. P sued to stop D from building gas station

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Rule: A reciprocal negative easement is attached to all lands sold in a common developer scheme, and even though a restriction is outside of the direct chain of title, subsequent buyers will be deemed to have constructive notice because of their duty to check the title neighboring lots

App: lots sold with restricitons in deed show common development plan. So remaining land became subject to a reciprocal negative easement, so owner cannot do anything forbiedden to the owner of the lot sold. Runs with land-enforceable if have actual or constructive notice: bc on notice by nature of neighborhood-under duty to inquire

o Character of surrounding neighborhood can put you on notice. To negative easements. Builder bound by easements in record of neighbors

Another way to look at it…

Now this looks like theory 1: running with the burden analysiso Bc although L-1 made the promise: implied it in other land of Oo So just have to run through that analysis

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B: there’s no covenant on his lot: never been a covenanto So can’t use running of benefit theory

So use reciprocal negative easement theory (should really be called reciprocal real covenant theory)

How is B stuck?o When O sold lots 1 and 2 to L1 and L2: put residence use restricitons

in each of those deeds. O made explicit promise to L1, induced purchase. That creates a covenant over the rest of O’s land

Toward better case: 100% lots sold have scheme But: only 2 lots with restriction: hard to say that’s scheme

Stronger: bc 9/10 lots restricted, instead of 60%

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of Sanborn? No: B not stuck bc no common plan when he bought the land. So O couldn’t

be bound by one to pass it on to B. Don’t allow common plans to arise retroactively. Negative real easements never retroactive

No: B not stuck with common plan, so can’t enforce it against someone else. Common plan is reciprocal. B not a beneficiary, outside of scope, cant enforce

No: in Mass: reciprocal negative easement is real property interest, must satisfy SoF. So must be written in covenant, won’t imply it

3. CONTRACT LAW THEORY: THIRD PARTY BENEFICIARY THEORY Requirements

o All landowners seeking enforcement need to show is that when the original promisor and the original promisee executed the covenant, they intended to benefit not only original promisee, but also the owners of the land now owned by the parties seeking enforcement

Where do you get intent?: o Express or o infer intention by common scheme : imposed the burden on each lot

for benefit of other lots Need intent (through scheme/plan) of O and subsequent

purchaser when the lot is sold Intent at time of earlier sale not relevant to 3rd party

beneficiary So this is focusing on subsequent intent. Reciprocal

negative easement focusing on prior intent. Running of the burden just has its checklist

Minority: third party beneficiary limited to those that can trace title to original promisee at some point in time

o This adds the vertrical Privity requirement: (like L1/L2 would have)o But if a creditor beneficiary: (wasn’t just given right, but gave

consideration for it): can enforce

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Snow v. Van Dam Facts: P: owners of summer homes. D: owner of land which used to be

unsuitable for building on when neighborhood divided. Now icecream stand there. All lots sold with private house restrictions. New conveyance to D with language of all restrictions go with it

Holding: since restriction part of scheme: it was appurtenant o Don’t need restriction on every loto Normally can’t create restricting in favor of land owner by stranger,

however, earlier purchaser scan enforce against latter pursuant to scheme

o Relaxed Privity requirement in order to find common scheme of restrictions

L4-10: on running of benefit theoryo Successors to original promiseeo When got lots: they purchased benefit of real covenant o Intent? From scheme. No express statement: scheme shows intent to

benefit all, so appurtenant to every other lot: reciprocal kind of thing

No: bc equitable easement or restriction cannot be created in land owned by a stranger

o Bc they got their land first: can’t attach it in running theory (they are strangers when O sold lot 3)

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Yes: reciprocal negative easement theory. Same situation as Sanburn v. McClain. But this is Mass, so that doesn’t work.

But: court: Third Party Beneficiary Theory Earlier purchaser can enforce in pursuant to scheme of restrictions. Earlier and later purchasers within area covered by scheme acquire an interest in the restriction that the common vendor cannot release them

o Had intent when sold lot 3 of common scheme : L1 and L2 are 3rd party beneficiaries

Better case after all lots sold: 10 lots with scheme: show intent. All that you have is intent when O sold lot 3 to A, but stronger scheme claim when 10 lots have restriction

Majority: Yes: this is just express intent: so Sally is 3rd Party beneficiary Minority: third party beneficiary limited to those that can trace title to

original promisee at some point in timeo This adds the vertical Privity requirement: (like L1/L2 would have)o Sally doesn’t have vertical Privity, never bought land from original

promisee (O)

Donee and Creditor Beneficiaries A donee beneficiary gives nothing of value to the original promisee in

return for being able to enforce against original promisor A creditor beneficiary gives some consideration to the original promisee in

return for the right to enforce against the original promisor o So in minority that requires vertical Privity: allow sally to enforce if

she ahs given some consideration, not just donee beneficiary

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Breakdown of Theories for Enforcement by Someone other than the Original Promisee

1. Running of the Benefit Theoryo Based on intent of original promisor and promisee to attach benefit to

land still owned by promisee at time of execution of original covenant so that subsequent owners of that land may enforce

o Available only to lot owners whose lots were first sold by the developer after she imposed the covenant on the burdened (the D’s) lot

so enforcement by later sold owners (P’s sold after burden assigned) against later earlier sold owners (D’s are earlier sold)

bc land retained by owner gets benefit: then that passes to the P’s who enforce

2. Reciprocal Negative Easement Theoryo Bases on enforcement of developer’s implied promise (to restrict lots

still owned by the developer at the time he sold lot to P) against subsequent owner of one of those implicitly burdened lots

o Available only to lot owners whose lots were first sold by the developer before she imposed the covenant on the burdened (the D’s) lot

so enforcement by earlier sold owners (P’s are sold first) against later sold owners (D’s are later sold)

bc land retained by owner burdened by scheme (implied promise to enforce scheme on rest) and then burden sold with new owners)

3. Third Party Beneficiary Theoryo Based on intent of original promisor and promisee at time burdened

lot was first sold to allow the owner of the allegedly benefited lot (P’s lot) to enforce against the burdened lot

o Available to lot owners whose lots were first sold by the developer either before or after she imposed the covenant

Either: bc burden meant to help everyone else’s land

2. Termination

Grounds for Terminating Real Covenants and Equitable Servitudes 1. Explicit (document creating covenant specifies a termination date)

a. Doc can make time limit. Or ppl can release covenant by vote2. Changed circumstance

a. rulei. covenants remain enforceable unless character of the

neighborhood have been changedii. and the purpose of restrictions have been thwarted

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b. as long as original purpose of covenants can still be accomplished and they will benefit area: the covenants stand even though the property has greater value if used for other purposes

c. other rulesi. 1. Only end covenant (applying doctrine of changed

circumstance) if all the lots circumstances are changedii. 2. Changes are within the subdivision (not just next door like in

question)3. Abandonment

a. Owners of abandoned estate already abandoned right to enforceb. Requirements

i. Existing violationsii. So wide spread

iii. That continuing enforcement is no long viableiv. Because existing violations have already frustrated the

purpose of the covenant 4. Waiver (or acquiescence)

a. If lot owners acquiesce to other violations and therefore have no basis for enforcing now when someone else tries to do what’s already done

b. But can argue degree: small day care v. huge firm5. Estoppel

a. Reliance: ppl should have foreseen indi reliance on other commercial enterprises to think could build one, so can’t preculude it

6. Prescription/expiration of statute of limitationsa. Breach for so long without complaind: SoL runs for adverse

possession of breach

Western Land Co. v. Truskolaski Facts: covenant for single family dwelling, since 1941 covenant, substantial

changes in neighborhood (significant commercial development in area), and sporadic violation of restriction over years

Issue: had single family character been affected so purpose of it was thwarted, rendering it unenforceable?

Rule: restrictive covenants are still enforceable unless the objects and purposes of the restrictions have been thwarted.

Holding: covenants still had value: not sufficient evidence the purpose of covenant thwarted.

o Despite more valuable property if commercial, still substantial benefits. Ordinance/zoning change could not override the private restrictions.

o Sporadic violations didn’t show consensus to abandon/waive restriction

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Yes: B argue changed circumstance: covenants now obsoleteo But unlikely to win:o Rule:

covenants like this remain enforceable unless residential character of the neighborhood have been changed

and the purpose of restrictions have been thwarted as long as original purpose of covenants can still be

accomplished and they will benefit area: the covenants stand even though the property has greater value if used for other purposes

o other rules 1. Only end covenant (applying doctrine of changed

circumstance) if all the lots circumstances are changed 2. Changes must be within the subdivision (not just next door

like in question)

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No: bc then devalue next lot over. And where do you stop: draw the line at edge of subdivision

Cost/Benefit: make court refuse NY: Rict v. Watt: not a question of balancing equities, nor does it matter that P is

only one refusing to get rid of covenant o Other courts might allow:o Mass Stat: restrict remedies to owners of dominsant estate when changed

circumstance

Argue not fair he can’t while others can

VI. PUBLIC LAND USE RESTRICTIONS

Three QuestionsWhen can gov force sale?Are they taking or regulating? Are there times when say they’re regulating but really taking?

A. Eminent Domain

By reverse implication: 5th amendment: takings clause: “No person… shall be … deprived of life liberty, or

property, without due process of law; nor shall private property be taken for public use, without just compensation

o applies to federal govo implied eminent domain

(states say explicitly) 14th amendment: “No state shall … deprive any person of life, liberty, or property

without due process of law; nor deny to any person within its jurisdiction the equal protection of laws

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o so this incorporates 5th amendment: due process of deprivation of property= need for just compensation

o applicable to states

Limits on Takings Economic and practical limitations Political limits Legal Limits (Kelo)

Kelo v. City of New London facts: development plan for city of new London, to create jobs, increase revenues.

Wants to enforce eminent domain to acquire remaining parcels. Was not gonna open up condemned land to public, and lessees weren’t gonna be common careers

issue: does this count as valid public use under federal and state constitutions?o Test

1. That the takings of the particular properties at issue were “reasonably necessary to achieve the city’s intended public use”

2. That the takings were for “reasonably foreseeable needs”o passed: public use: kind of counts as public purpose

Stevens Majorityo Public use: like police stationo Private use: hotels by private owner: transfer from oen private owner to

anothero This plan is middle ground

It is condemnation for public use, and not a pretext for bestowing benefit on private class

o Depends on broad or narrow interpretation of public use Broad: advantages public (economic benefit): this was adopted view

Bermin v. Parkero Condemn to rehabilitate deteriorating propertyo Public use: includes efforts by gov for physical,

aesthetic, monetary, and spiritual well being of people Midcif Case

o Okay to condemn and redistribute land holdingso Judicial review of public benefit is very deferential to

state legislature o so what wouldn’t be okay? If take from one person to

give to another, but if legislature says redistribution for more equality, that’s fine

Narrow: actual use by public (like a park): not limited to this dissent: O’Connor: impose heightened standard Kennedy: Concurrance: taking should not survive the public use test if there is a clear

showing that its purpose is to favor particular private party, with only incidental or pretextual public benefits

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Reactions to Kelo by Legislators Procedural changes: require public hearings, notify/negotiate owners Political: local vote, supermajority, state approval before local taking Constitutional changes: stated public purpose; limit purposes; etc Congress: hasn’t adopted any of these

Ends v. Means Based Tests Kilo Case: ends based approach

o Highly differential for condemnation: as long as not taking and just giving to a friend

o Foreclosure okay as long as goal is appropriate one Means based test: not accepted by court

o Assuming valid goal: is eminent domain only way to achieveo If no: then preclude gov from eminent domain

B. Police Power Regulation

States can regulate private property under police power To protect public health, safety, morals, and general welfare So in order to regulate: must have appropriate police power objective

o And must use means reasonably related to that goal

Village of Euclid v. Ambler Realty Co. Facts: precluded ppl in Cleveland from using for multi-residential uses Court: this was proper use of policy power: restricting by use designation Trying to preven nuisance: to protect public health and safety Reasonable connection: appropriate means of achieving

Courts are very deferential on this

C. Physical and Regulatory Takings

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1. Inverse Condemnation Remedies

Normal Condemnation Procedure1. Attempt a negotiation2. If fails: condemning authority files petition to court3. Followed by notice to all persons with interested property in question 4. Trial held

a. Gov must establish authority (some jurisdictions, taking must be necessary)b. Court can give authority to enter and inspectc. Court may require gov make a deposit

i. Jury trial sometimes, US doesn’t need onwii. Jury will determine just compensation

iii. Issues of public use and necessity decided by court5. gov pays compensation plus interest

Inverse Condemnation action when statute has regulated your property so much it’s a taking court: could invalidate regulation to not include regulated property compensation? Damage for past restriction or permanent decline in value

o this is inverse condemnation action: damage from gov (as D) for regulatory takings. Now takee is P

o constitutionally required: if gov taken: must compensate

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2. Physical Takings by Regulation

Larreto Case statute: requires leasers to allow access to a cable company if tenants wanted access

to cable: would have to run wiring and put box on roof S.C.: putting box on roof was a taking

o Bc regulation required physicaly occupation of land: so can do reverse condemnation

o Regulation took so much out of FSA that was tantamount to physical expropriation: which is taking: so can do inverse condemnation

Took 3 parts out of FSAo 1. Right to exclude: said cable company had right to go on lando 2. Right to use: can’t put anything on roof where company has boxo 3. Right to dispose: can’t sell property where cable company put stuff

size of property taken doesn’t matter REGULATION THAT REUSLTS IN PERMANENT PHYSICAL OCCUPATION

OF REGULATED PROPERTY OWNER’S LAND IS A TAKING

3. Takings Based on Economic Impact

Hadacheck Case Statute: prohibited activities in certain parts of LA (heavy industry in residential

area). P owned brick yard, when began, nobody around, ppl moved around him. Land so damaged if couldn’t use as brickyard, it was worthless

Issue: is this takings? Holding: no: it’s a nuisance. Since it’s a nuisance, owner didn’t have right to

operate brickyard to begin with. So not taking any right from him. Stick already gone from bundle. Regulation just codified what neighbors already could do

o Coming to nuisance? Don’t allow ppl who get there first to override public interest in safe use

Regulation that doesn’t further limit property owner’s rights, then not a taking REGULATION OF NUISANCE LIKE USE IS NOT A TAKING

Pennsylvania Coal v. Mahon Facts: PA coal owned large plot in FSA. Sold surface rights to Mahon (his

predecessor assumed risk of subsidence and waived claims for damages) but espressly reserved rights to mine coal underneath.

Statute: Kohler Act: prohibited companies in PA from mining in way that cause subsidence of homes and surfaces near properties.

Result: if coal company complied: lose any productive use in land Rule: WHILE PROPERTY MAY BE REGULATED TO CERTAIN EXTENT, IF

REGULATION GOES TOO FAR, IT WILL BE RECOGNIZED AS A TAKINGo Putting line on police power for first time: must compensate for some

regulations Factors to Consider

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o 1. Physical invasion: Larreto: not hereo 2. Economic impact of regulation: diminution in value

dimmunation in value of property limitation on some value that must yield to police power: but implied

limitation has its limits, or else contracts and due process clauses gone.

Consider extent of dimunation in value to consider if reaches limit WHEN DIMINUTION REACHES CERTAIN POINT:

THEN MUST USE EMINENT DOMAIN: AKA EXCESSIVE ECONOMIC IMPACT—THEN MUST BE COMPENSATED (at least for 100% diminution)

How much is too much?o Case by case basis:o Here: too far: bc 100% of value (sold FSA, only

retained mining under land, now that whole thing is gone)

Reasoning: sincei physical appropriation/destruction is taking: making it impossible to mine coal: tantamount to physical taking

BRANDEIS DISSENT This is like Hadacheck: nuisance like use: subsidence of surface could result in

injury: nuisance like use regulation per se not taking o Doesn’t matter about economic impact: not taking away any righto Restriction on use doesn’t become inappropriate as a means because it

deprives the owner of the only use of which the property can be profitably put Response to factors: if going to apply dimmunaiton test: look at reduction in value in

terms of whole property: whole property rule: surface remains valuable, so fineo Holmes response: should focus on individual owners right, not whole

property And equity issue: Mahon paid less bc assumed risk, now getting

more. If Mahon gets more bc dangerous, Coal should get compensated (bc sold for less)

Reciprocity of advantage: if regulated property owner, whose property has decreased in value, als derives benefit from that regulation that mitigates the negative economic impact: then compensation might not be required

But if property the only one detrimented, better argument for taking Ex. zoning ordinance for single family residence: residents harmed: but also

benefited (you cant put up factory, but neither can your neighbor But in PA coal: coal co gets no benefit, but unilaterally harmed. So no reciprocity to

push back on non-takings side. Brandeis: this isn’t relevant bc nuisance analysis

Keystone Coal Facts: virtually the same as PA coal. But upheld statute/no taking Court: statute designed to stop nuisance like use: so per se not a taking: Hadacheck

o Then: even if not nuisance: distinguishable from PA coal. Didn’t deny all economically vilable use of coal company property: basically didn’t go as far as in PA coal

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Distinguishable: bc there were still pockets of coal they could get out without breaking regulation.

P argument wanted to look at each pocket as separate interest, so 100% loss of some pockets.

Court: adopt whole parcel rule: IF YOU CAN STILL USE WHOLE PARCEL AS ECONOMICALLY VIABLE (CAN TAKE OUT SOME POCKETS OF COAL AT PROFIT) THEN NOT A TAKINGS

o Rejects looking at interest in divisible parts: denominator problemo Coal now coulding get to, part of entire coal interest. This essentially adopted

whole parcel rule and nuisance rule from Brandeis Dissent of PA coal

Penn Central Transportation Company v. City of New York Facts: Penn Central: owns Grand Central Station. Put on historic landmark list, so

need approval before they can do anything. Submit idea to build office tower on top, rejected. They have air rights, which they’re allowed to give to another one of their properties

Issue: was rejection of development plans a taking? Established three part test

o 1. ECONOMIC IMPACT OF REGULATION o 2. INTERFERENCE WITH DIRECT INVESTMENT BACKED

EXPECTAITON greater the difference between what you thought you would do to

what you can do now, more toward takingo 3. CHARACTER OF THE ACTION

physical occupation question: if permanent: then per se taking temporary occupation: push toward taking to stop harmful use: push toward not taking (if to extent of nuisance,

per se) Argument of P 1: like PA coal: took their air rights by legislation

o Court: other plans commission might accept, can transfer air rights, can sell air rights,

Also: part of whole parcel: included existing terminal and right to use it: can still make profit from existing terminal

Court wont sever air space: as long as you can still continue to make a profit on existing terminal: incorrect to say no value in property after regulation (application of whole parcel rule)

Court wont divide up parts: focus on character of the action and nature/extent of the interference with parcel as whole. Brandies dissent

o Shifts the focus of analysis of economic impact: from what government has taken away to what owner has left

As long as what you have left allows you to make reasonable return on investment: you’re fine. Doesn’t matter what you lost as long as you have that left

How much you need is unclear: but as long as you make profit, that’s good enough

Argument of P 2: this is very opposite of Hadacheck: nuisance like use v. beneficial use

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o Shouldn’t be able to take away huge value when it helps societyo Court: uses in Hadachek were lawful as well: restrictions reasonably related

to policy for wide-spread public benefit, and regulation applied to similar property: not about noxious use

Same thing here: historic preservation: for public good Seems to wipe out nuisance like use argument: restrictions were

reasonably related to implementation of policy, like historic preservation, with widespread public benefit and applicable to all similar property: says not about the noxious use

But keystone coal: was after this: brings it back in o Court cont.: Penn Coal hurts P anyway: placing building above landmark is

nuisance like use. Meant to prevent damage to socially valuable thingREINQUEST DISSENT

This is not nuisance like use at all Look for reciprocity of advantage if you say it’s part of policy for public benefit

o P: unilaterally harmed (and few other landmarks). Owner can look at other buildings: but not real advantage. So unlike zoning law. Huge burden, very small benefit—discrimination for keeping building nice

Might benefit NY as a whole: but if want that: have to compensate for lost opportunity

o Can transfer air space: so that’s a step in compensating, now compensate what’s left

Andrews v. Allen Facts: selling trinkets made of endangered species. Statute made it illegal Court: denial of property right (to sell thing) not a taking. Value not totally wiped out LOST FUTURE PROFITS: MUCH WEAKER ARGUMENT TO TAKING CLAIM .

Bc speculative

Lucas v. South Carolina Coastal Council Facts: Consortium of relators (Lucas was a part) bought land along coast,

unrestricted. Then beach protection expanded, couldn’t build on lots. Trail court: this was takings: bc deprived of economic use Appeals/SC of SC: essentially a nuisance control: avoid public harm in eroded

beaches Supreme Court: dicta: on physical invasion still per se taking. Doesn’t matter how

important regulatory program is. Tells us Larreto Rule still goodo Holding: 2nd per se taking rule: DENIAL OF ALL ECONOMICALLY

VIABLE USE OF PROPERTY IS PER SE TAKING (really must be 100% (Palazzolo))

o Rationale: this is same thing as physical invasion: bc takes out all use like a physical invasion does

And unlikely there will be offsetting reciprocal advantage that will make up enough

Where permenant physical occupation: no longer how strong government interest: still a taking. So same thing here.

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o Exception: NO COMPENSATION OWED IF THE PROSCRIBED INTEREST WAS NOT PART OF THE OWNER’S TITLE TO BEGIN WITH

If you don’t have the right to begin with: nothing being taken away So new law that takes away: if don’t have that right in title itself, then

it’s not a taking. In restrictions of state law on property and nuisance New law just duplicates existing result achieved by neighbors But can’t be newly created by legislature or decree

o That’s what happened here Dissent: this is bull shit: the state legislature found the

nuisance, so in the exception if you call it that. The determination of the risk to public health is afforded deference from judges, part of policy making role. Scalia taking it.

o Blackman dissent: exception is inconsistent with per se rule: per se: don’t pay attention to nuisance (bc too easy to manipulate): but exception: based on nuisance rule (in courts this time instead of legislative: just as manipulatable)

State courts: created even bigger exception: statutory prescriptions in addition to common law doctrines: even though this is what Scalia seems to say judge made nuisance doctrine to be in exception.

o Timing critical: if law before indi got property interest: then no loss. If before, you didn’t lose any rights

What about Nuisance? Seems economic devaluation wouldn’t applyo 1. Nuisance exonerated payment bc directed regulation at nuisance (not losing

anything): nothing that says you don’t compensate (DISSENT: this is exactly what Hadacheck said)

o 2. Even if it is a nuisance: that test is gone now just a prequel to new rule that: “land use regulation does not effect a

taking if it substantially advances legitimate state interests “ except above: if 100% deprivation it would

o 3. Even if still have nuisance like use test: end it now: bad test formulaic: can just make stuff sound like nuisance: preventing harm

really could be benefit too ex. no highway signs to stop distracting drivers (Hadechek no

takings) or to get better view (public benefit: takings) and exacting benefits to public as a whole by costing the individual:

public should have to pay for benefit

Denominator Problem: robbed of all economic use if consider parcels of the land, not if consider the entire plot

Hypo: Lucas buys 5 lots: statute only covers 3 of them. o Does “property”: count as whole thing, or each track individually?

If property is entire thing: not per se takings under Lucas: Penn central analysis

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If property is two lots: per se taking under Lucas Hypo 2: Lucas buys 25 acre parcel. 10 acres regulated and can’t be developed

o Subdivides 25 acre parcel into 4 tracts: 3 parcels out of zone, 1 parcel in Is regulated 10 acre parcel Lucas per se taking? Depends:

If count “regulated property” as 10 acre parcel: taking If count “regulated property” as 25 acre: then only 40% loss

How to solve: owner’s reasonable expectation based on state law on particular interest in land

o PA Coal: at time: regarded land as having 3 distinct estates: Surface Support (owned by PA) Mineral (owned by PA) Statute: wiped out PA’s entire support estate: and gave it back to the

owner: recognized the interest as legit: took it away: must compensateo Distinguish: from Penn Central: air rights not recognized as different right

So in PA: legit expectation support estate would stay valuable Penn Central: no expectation air rights retain value in absence of

surface rights (and surface rights still valuable as train station, so not 100% wipeout)

So denominator difference between cases makes sense: Penn: separate estate: 100% wipeout. Penn, not separate estate, not complete wipeout

o Probably easier to get lower denominator if buy lots at different times How this plays out: S.C. hasn’t set guidelines

o State Courts: don’t sever rights (dissent in PA coal, keystone coal, penn central opinion): broader denominator

o Federal claims court: opposite: conceptually sever (PA coal):

Palazzolo Statute: wetland protection: claimed Lucas per se taking. Brought inverse

condemnation. State supreme court: can’t get damage: bc already in effect when bought property

o Background state law: within Lucas exception S.C.: REJECT CLAIM OF AUTOMATIC BAR ON TAKINGS CLAIM IF

REGULATED PROPERTY OWNER PURCHASED THE PROPERTY AFTER THE ADOPTION OF THE POTENTIALLY COMPENSATORY REGULATION

Doesn’t automatically count as background under exception of Lucaso Rational: any pre-purchase regulatory scheme would be unchallengable

Puts purchaser in worse position as predecessor, as soon as predecessor sells: no more claim. Predecessor forced to bear loss (diminished value) if don’t want to sue themselves (maybe not worth time/money for them). OR if P unaware: then P bears loss

THE RIGHT TO BRING INVERSE CONDEMANTION ACTION RUNS WITH THE LAND

o And reinforced need for 100% in Lucas rule If not 100%: The could get compensated under Penn Central Analyis

O’Connor concurring: But then: fact that owner purchased after the enactment of the regulation may be relevant to the issue under Penn Central balancing test

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o Bc wont interfere with reasonable investment-backed expectation

o Doesn’t draw bright line though P: trying to say look at wetland part: lost complete value: denominator issue: not

settled here, bc didn’t raise it below. So now shot at Penn Central Test, but O’Connor concurrence: bad chance

Taho-Sierra Statute: temporary moratorium on development until comprehensive regulatory plan

could be enacted P: brought Lucas Claim: Moratorium, couldn’t do anything with property

o So new severance issue: severance of time Court: rejects: TEMPORARY MORATORIUM IS NOT PER SE TAKING: BC

TEMPORARYo 1. Rejected landowners claim that a temporary moratorium on development

was a per se taking bc moratorium amounted to denial of all economically viable use of the property (Lucas approach): during the time it was in effect

o 2. Refused to sever ability to use property during time from remainder of fee simple absolute

“we have consistently rejected the P’s approach to the denominator problem”

didn’t make Penn Central argument; still could make first English claim

First English (this is extra shit): Rule: if a gov. regulation results in a taking, then the government must pay

just compensation from the time the regulation first worked the taking until the time the government rescinds the regulation or changes it in such a way that no taking occurs

o Ignore normal permitting process time and the likeo But undue delay results in liability

Damages: hard to calculate: Wheeler: market rate return computed over period of temporary taking: difference between proper fair market value without regulation and its fair market with regulation

Issue of law: takings wont occur until gov refuses to pay, interference could begin much earlier: compensation measured from that time

o So first: bring in state court: show regulatory takingo Then federal court: to show no just compensation

Whole Parcel Rule After Tahoe-Sierra PA Coal

o Majority: taking occurred bc the Kohler Act took the entire “support estate”o Dissent: no taking occurred bc the value of the coal kept in place must be

compared with the value of all other parts of the land, “the sum of the rights in parts can not be greater than the rights in the whole”

Penn Central

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o Majority: no taking bc “taking jurisprudence does not divide a single parcel into segments.” The courts should focus on the nature and extent of the interference with “rights in the parcel as a whole”

o Dissent: taking of the terminal owner’s property; nonconsensual servitude imposed, with no reciprocity of advantage

Keystoneo Majority: no taking of the specific pillars of coal that need to be left in place

bc they were not a separate segment of propertyo dissent: taking: PA coal is indistinguishable

Palazzoloo Majority: some cases recognize that the extent of the deprivation is measured

agasint the value of the parcel as a wholeo But other cases (citing Lucas) have “expressed discomfort with the logic of

this rule” Tahoe-Sierra:

o No taking: rejects temporal conceptual severeance and relies on Penn Central’s “parcel as a whole” rule

4. Exactions

Nolland Case Facts: wanted to destroy house and build new one. Asked for permit. Commission:

will only give you permit if you allow ppl to use your beach to get between two parks Issue: is result different bc Nolland’s asked for permit, get a restriction in return? Rule: Logan Case (and within Lucas): not a taking if

o 1. Land-use regulation substantially advances legitimate state interest and o 2. Does not deny an owner of economically viable use of land

application: there were three state interests in regulation: 1. See beach and know its there 2. Psychological barrier to using beach by developed shore front 3. Prevent congestion on beach

o permit didn’t do any of them: so essential nexus between purported police power goal and means choses is missing: allowing ppl to walk up and down doesn’t help the goals

rules from caseo 1. THERE IS A REGULATORY TAKING IF THERE IS NO ESSENTIAL

NEXUS BETWEEN THE PURPORTED REGULATORY GOALS AND THE REGULATORY MEANS CHOSEN TO ACHIEVE THEM

regulatory means must substantially advance the purported regulatory goals

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this case: was an exaction (forced sale: like a physical taking): granted a building permit to landowner only if her agreed to allow lateral accesss across its beachfront property by the public

trying to force Nolland to lose right to exclude without payment

found taking for first time on grounds other than: economic impact or physical invasion

DISSENT Sclaia is adding a new test here: substantially advance test: before just used rational

basis of connection between ends and means Even if Scalia gave right test (substantially advance purported regulatory goal): this

does: : goal number 4: meant to facilitate lateral access between the parks. o It’s substantially advancedo Maybe appropriate to give compensation: but through old tests

1. Economic impact 2. Physical invasion 3. Divestment of portion of land

o state interest they’re advancing: just has to be within police power : including general welfare: (from Kilo and others: virtually no limit)

Dolan Case facts: trying to build bigger parking lot. To get permit, had to do crazy stuff: like help

traffic flow way beyond how much she would hurt it, 9 other things. o This was an exaction

Common in development projects: building new area: requires city to do stuff too (sewers, drains, streets, etc): gov says we’ll give you permit but you have to do something to reduce burden.

Ex. a park (condition in kind exaction) Money (monetary exaction)

Rule from case THE DEGREE OF THE BURDEN IMPSOED BY THE EXACTIONS PROGRAM MUST BE “ROUGHLY PROPRTIONA” TO THE PROJECTED ADVERSE IMPACT OF THE REGULATED PROPERTY OWNER’S PROPOSED DEVELOPMENT

o Government must show the required dedication is related both in nature and extent to the impact of the proposed development

Same effort to quantify the burden of the exaction and the impact of the development required

o The rough proportionality test only applies in the context of exactions (land use decisions that condition approval of development on dedication of property (or money) to the public city of Monterey v. Del Monte Dunes)

monetary exaction is subjet to nexus and proportionality test (Kuntz v. St. John River Management)

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5. Summary

Lingle v. Chevron USA Facts: in response to Chevron owning most of oil shit, limited amount of rent oil

company could charge their dealer-lessee’s Overruled Adgens v. Tiberone: means-ends test when gov regulates it’s a takings if it

does not substantially benefit legit state interest: this rule untenableo Substantial benefit test: not a takings test

Summary of other caseso Per se takings

1. Lareto: permentant physical occupation 2. Licas: denial of all economic viable use

o non per se: Penn Central balancing testo purpose of these: to see if physical regulation is functionally equivalent to

government appropriation of private property: if regulation is the same thing as just snagging the property

substantial benefit on the other hand: not about if this is like government appropriation: not tied to the test of takings, or to justification for it

o even if there is no substantial justification for measure: it’s not a takings violation

but doesn’t mean it’s valid: because if there is not an advancement of legitimate police power goals: then there’s a violation of the due process clause: (deprives individual of due process rights)

explanation A REGULATION OF PRIVATE PROPERTY DOES NOT

AMOUNT TO A TAKING IF A COURT FINDS THAT THE REGULATION FAILS TO SUBSTANTIALLY ADVANCE LEGITIMATE STATE INTERESTS

o in such a case, the GOVERNMENT LACKS THE AUTHORITY TO ADOPT THE REGULATION IN THE FIRST PLACE, even if it agrees to pay the regulated property owners

o SUCH A REGULATION IS A DEPRIVATION OF PROPERTY WITHOUT DUE PROCESS, but it is not a taking

o so overrule Agins Nollan and Dolland: still good law: but because it was like a

physical occupation (easement and leese agreeemnts): required P’s to dedicate an access easement to the public as a condition of receiving permission to develop

Such exactions amount to takings because they violate the doctrine of unconstitutional conditions; THE GOV MAY NOT REQUIRE A LANDOWNER TO WAIVE HIS OR HER RIGHT TO JUST COMPENSATION FOR A TAKING AS A PREREQUISITE FOR BEING ALLOWED TO DEEVELOP

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ad coelum/cuius est solum, eius est usque ad caelum et ad inferos = for whoever owns the soil, it is theirs up to Heaven and down to Hell

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