property bryant fa 2002.doc

7/23/2019 Property Bryant FA 2002.doc

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Professor Bryant – Spring 2002

PROPERTY OUTLINE

The central problem in property is: If a person can call this his property, how will that affect another?

What it means to own something:1) I can transfer it

a. Give it b. Sell itc. Rent it

2) Destroy it

a. When property takes on a vale that e!cee"s that of property ownership, we lose the ability to "estroy it. b. In the #S, "estroying something is pretty mch okay.

3) Use it

a. Restrictions on se. b. $!: %an&t se cell phone in car nless it&s han"s free' my right has been given away to the pblicc. Pledge it

i. (ypothecating it.

Underlying roerty la! is "elief # eac$ iece of land is in$erently secial %ni&%e irrelacea"le li'ited

reso%rce on lanet

(IRT POEION* +,-UIITION O( PROPERTY Y DI,O/ERY0 ,+PTURE0 +ND

,RE+TION

+. +c&%isition "y Discoery

o$nson . 4Intos$ 51623)0 . 3

Facts: )ohnson *+ boght lan" from the In"ians. -&Intosh * ha" grant of lan" from the #S. /oth 0stly obtaine" lan"an" + wants to e0ect from lan". + claim first in time *both lan" conveyances from In"ians says that the In"iansnever owne" the lan", #S only ha" athority to sell lan" *1athority of grantor2. They ha" legal occpancy rights, btno right to by3sell lan". The #S gov&t e!clsive right to e!tingish In"ian title of occpancy, either by prchase orcon4est, an" also right of sovereignty. + wants the sale of lan" enforce" becase someone is on the lan". If he "oesn&t

"o this *e0ectment, he might lose his right to the lan". 5iet title 6 he is 4ieting any "isptes there may be abotownership of this property. 7lease lan" of In"ians with 1occpancy rights2 v. ownership rights 7as long as governmentfeels like it8

Held : The In"ians ha" no entitlement to the lan"' they ha" occupancy only. If they aren&t sing it pro"ctively, theyhave no entitlement. *It is actally whoever has the power to "efine what pro"ctivity is.

Reasoning : 9c4isition by "iscovery In"ians have 1right of occpancy2, possessory interests' #S gov&t has 1ltimate"ominion2 1ac4isition soil2 1fee title2 have all ownership rights for ftre *biggest ownership yo can have

Note: 9nother rea"ing is that this opinion ma"e it impossible for in"ivi"als e!cept the #S gov&t to take a"vantage of ;ative 9mericans for offering them small amts of money. +rchases by the government wol" be respecte". Note: Doctrine of discoery has principle of first in ti'e: 0stifie" if first in possession, occpancy property law

Note: La! of accession *9+: person a""s property of another b3c a"" labor *mst enhance vale of lan" by labor.Class: )ohnson has possessory interest yet "ifficlty in "efining legal entitlement goes with possessory interest v.ownership of ppt&y' present v. ftre owners' cotenants, possessory v. ownership entitlement' change of title *tracing

train, going back, < in recor"ing title, relativity of title < *strength of title, concept of title not absolte *relative conceptof priorities

Tee78it7Ton . U0 396 U 2:20 ,t0 1;<< 5Prof ryant =%st told %s a"o%t t$is case)

Facts: Sec&y of 9gricltre sol" park to private timber company not withstan"ing any rights to occpancy claims'

In"ian&s claim is that they are e!ercising their occpancy rights by tili=ing the lan" lan", nlike )ohnson v. -&Intosh,therefore can take the lan" as private property.

. +c&%isition "y ,at%re

Pierson . Post 516><), p. > Facts: +ost was chasing a fo! with a grop of hnting "ogs most of the "ay, an" when he was finally abot to captre the

>



fo!, +ierson *knowing that +ost was prsing the fo! kills the fo! an" takes it for himself. 5estion of: whether +ostha" ac4ire" a right to, or property in the fo!. Held : @age. -ight re4ire won"ing, circmventing, or ensnaring animal to "eprive them of their liberty, an" sb0ectthem to the control of the prser for have a right of occpancy *ac4iring right to wil" animals. Dissent : ;ee" incentive to kill fo! *nisance to society, shol" se cstom instea" of arbitrary bright line rles cortscreate. Note: ma0ority hel" for sake of certainty an" preserving peace an" or"er in society, v. *"issent promote "estrction of pernicios beasts A cstomClass: Sorry, can&t solve all problems in the cortroom

,. +c&%isition "y ,reation

>. %opycats

Fondation of proprietary rig!ts is e"penditre of labor and money #past effort$

International Ne!s erice . +ss4ted Press 51;16)

Facts: Int ;ews Serv was copying news gathere" by 9+. Held : %t sai" 9+ ha" 4asiproperty interest in the news it ha" gathere" an" col" prevent competitors from sing itntil its commercial vale as news ha" passe" away. Seen as nfair bsiness practice, fo& sre.

Notice: (ow is this "iff than fabric "esign? Why "i"n&t I;S control %heney /ros? We want to give incentives to createseveral "iff news stories. We "on&t really care if we have several "iff clothing "esigns. The level of protection is base"on how important we think the information is.

,$eney ros. /. Doris il? ,or. 51;3>)

Facts: Babric "esigners create several "esigns. oris Silk comes ot w3 "esign first. Then, %heney /ros. comes ot w3same "esign an" n"ercts +&s price. + wants protection "ring first season of sales. ;o copyrights or law forbi""ing tocopy it. Removes incentive for fabric "esigners to create fabric "esigns.

Held : %t say that man&s ppt&y limite" to chattels which embo"y his invention. Cthers can imitate. Tho it scks, biggerthings in stake. %ongress shol" be only ones to prevent imitation *b3c that gives monopoly to %heney /ros

Note: %t "oesn&t vale fabric "esigns *at that time, bt later vales with copyright rles, yet vales news *so calls it4asiproperty 6 very arbitrary

'it$ . ,$anel 51;@6)

Held : %opiers serve pblic interest 6 by offering comparable for npatente" goo" at lower price' b3c its npatentne" an"even if tra"emark *w3 lots of DD investe", "oesn&t mean they can monopoli=e pblic&s "esire for npatente" goo".

Notice: Greater pblic goo" *comparable goo" at lower price 6 no monopoly, improve" pro"ct v. incentives to creategoo"s *monopoly. Similar to C!eney Bros.

Note: patents *EF yrs, copyrights *e!pression of i"eas, tra"emarks *wor"s, symbols ways to give monopoly for

limite" time or to incentivi=e w3o completely "isa"vantaging pblic' overall for creativity, "iff btw copyright, tra"emark,an" patent

Note: inventor worse off bt competitors an" pblic better off *as long as "oesn&t "estroy incentive for ppl E invent

a. General rle: 1In the absence of some recogni=e" right at common law, or n"er stattes *copyrights, etc a man&s property is limite" to the chattels which embo"y his invention. Cthers may imitate these at their pleasre.2

E. %yberspace

/irt%al Aor?s0 Inc. . /ol?s!agon of +'erica0 Inc. 52>>1)0 ,+0 . @; Facts: @irtal Works * challenge" by @W *+ n"er 9nticybers4atting %onsmer +rotection 9ct *9%+9 6 Internetversion of lan" grab 6 "oesn&t allow "eliberate, ba"faith, absive registration of Internet "omain names in violation ofthe rights of tra"emark owners *register wellknown bran" names as Internet "omains to profit off this.

Held : %t hel" in wrong, b3c ba"faith in obtaining name *intent important. 9%+9 enacte" to prevent e!propriation of protecte" marks in cyberspace, to stop consmer confsion, an" encorage growth of Internet.

%sses: /ran" names are important' cybers4atters: taking "omain name' parasites: cybers4atters who tarnish image oftra"emarks' poachers: register "omain names that se names of other organi=ations to "isseminate nfavorable infoabot them

%sses: har" to govern *file sharing' privacy: concern on Internet even tho H si"e is pblicity.Class: why can we have litigation for poaching *anticybers4atting protection consmer act? What&s "iff btw

E



cybers4atting, parasites, an" poachers an" how can it be applie" "ifferently with the 9%+9?

. +roperty in Cne&s +ersona

%sses: celebrity&s right to pblicity 6 property interest "ring life incl"ing name, likeness, A other aspects of one&s selfroote" in right of privacy' is alienable an" inheritable' similar to patent an" copyright lawseconomic incentive to make investments in activities vale" in pblic

J. +roperty in Cne&s +erson

oore . Regents of t$e U, 51;;>)

Facts: + ha" hairycell lekemia, so spleen an" lotsa bloo" remove". +&s cells ni4e an" of great scientific an"commercial vale. ocs se" +&s cells to "evelop cell line, patente" it an" entere" comm agreements w3o telling + theywere even sing his cells. + se for part of the procee"s of the conversion 6 nlawfl ownership of rights over the personal property of another *e4ivalent is trespassing for real property. Held : %9 S%t think its more breach of fi"ciary "ty an" lack of informe" consent instea" of conversion bc:a. + "i" not e!pect to retain possession of his cells *no ppty interest in cells b3c lack certain necess ppty interests3rights b. &s patente" material 6 the cell line an" its "erivative line 6 isn&t +&s property b3c inventiveness is patente".c. /alancing of rights of patient an" researcher weighs against + *scientific3me"ical a"vances". Resoltion of this kin" of problem is best left to the legislatre *too 1hairy2e. The tort is not nec to protect patients& rights *se breach of fi"ciary "tyf. Gives rise to isses of bo"y as property *organs okay bt prostittion, etc.

Notice: Cne arg is that r&s a""e" vale to cells. We "on&t want to stan" in the way of research. 9nother arg is that cells

are not ni4e. Note: Hec!t *abot gift of man&s sperm to his wi"ow after his "eath says -oore is limite" to e!tracting tisse for me"research.Class: property in one&s person an" other personal property areas of law *sch as chattel, personality, personal property,moveable property may not be the same as real ppt&y rles bt can give yo gi"ance 7ownership interest an" infringingon it, conversion *taking someone&s property an" making it yor own, trespass to chattels *prevents yo from sing yor ppty, misappropriation *like conversion

b. +roperty interest K re4ires right to e!cl"e an" right to incl"e.c. Cwner has obligation to e!cl"e. If yo "on&t, can lose it legally *a"verse possession.

ac&%e . teen"erg 8o'es0 Inc. 51;;:)0 . 1>>

Bac&grond : +reviosly, )ac4e faile" to e!cl"e someone an" lost lan" to 9+.

Facts: 9 mobile home was "elivere" across +&s lan" "espite repeate" ob0ections. Going across lan" w3 permission is permissive se. The +&s were worrie" abot a"verse possession an" refse" to allow them to se lan". Held : The %ir %t set asi"e D>FFL in pnitive "amages an" allowe" only D> in nominal "amages. #S S%t recogni=elan"owner&s right to e!cl"e others from lan" as essential sticks in bn"le of rights that are commonly characteri=e" as ppty, therefore, mst protect this interest with more than D> nominal "amages to "eter people. Society interest to preserve integrity of legal system.Class: right to e!cl"e is key featre of property' shol" we pnish people from not taking ppt&y rights seriosly with pnitive "amages' intition: isn&t it 0st neighborly to let someone go over lan" this one time, yet what is the stopping ptof being 1neighborly2 *bright line rle?

tate . $ac? 51;:1)

Facts: Cwner of lan" wants to stop people from visiting migrant workers on his property base" on right to e!cl"e tokeep the visitors off. Man"owner re4ire" them to meet in his presence or e!cl"e" from ppty. They refse".

Held : %t hel" that se of ppty isn&t in0ring rights of others, necessity 0stifies entering lan" an" no legitimate nee" for aright in the lan"owner to "eny worker the opportnity for ai". Cwnership of real ppty "oes not incl"e right to baraccess to gov&t svc available to migrant workers *therefore, no trespass if they come on ppty. #ni4e characteristic of poplation *mobile, isolate" creates limit to farmer&s ppty interest. Notice: +pty rights serve hman vales *can&t incl"e "ominion over "estiny of ppl on premises an" law "eniesoccpants power to contract away what is "eeme" essential to their health, welfare, or "ignity.The ct says there is a reasonable restraint on a person&s rights. Gov&t officials can enter ppty bt can never 9+ *msthave right of trespass to be able to 9+Class: mst balance right of person *invitees of owner, people provi"ing gov& svcs v. ppt&y interests. Where are limits*eg. merchants, relatives visiting?' farmer nee"s protection for e!tra liability for people on ppty' is sitation like MMT oremployeeemployer? Isse of "ifferentiation of hosing v. office area for migrant workers' corts choose framework tose in cortroom'



". Right to e!cl"e central aspect of property. The right to e!cl"e, reaffirmation of what it means to own ppty, wascompletely vali"ate" in the 'ac(es case. In contrast, in State )* S!ac& , the property owner col" not set limits onaccess to his property. Still have the 4estion of sometimes we can e!cl"e an" other times we cannot. 9 ct willlook at certain factors to determine whether or not an owner can exclude.

i. Cne of the factors is what kind of property "o we have. In State )* S!ac& , it&s where the migrant workersactally live 6 resi"ential property 6 an" Te"esco is saying that it&s commercial property. %t says it&sresi"ential property. %ommercial property owners have more leeway as to what can happen on their property.

e. Mimitations on right to e!cl"e: civil rights legislation forbi""ing "iscrimination' rent controls an" limitations on MMright to evict tenants' law of 9+' bo"ies of "octrine granting pblic rights of access to private beaches' legislation protecting homeowners who have "efalte" on mortgage payments

8a'idi . Intel. 52>>3)0 ,+ ,t

Facts: Intel maintains email system' (ami"i *former employee sen"s email to crrent employees critici=ing Intel, (says he "i"n&t breach any secrity barriers' 1left2 when tol" to leave *by recipient of the email 7took email recipient offlist8' email case" no "amage to system' "i"n&t "eprive Intel of se3ownership of system

%sse: Is this tort of trespress of chattel? oes Intel have a right to e!cl"e an" who is br"en on? Held : S3) in %ir%t' "ivi"e" %t9pp' S%t says that trespass to chattel "oes not encompass electronic commnication that"oesn&t "amage compter system or impairs fnctioning 6 "amage has to occr with trespress to chattel.

Note: Trespass to chattels: mst in0re3"amage ppt&y Note: Who has br"en of filtering system: email sen"er or system maintainer? Is intent important? *#nlike thecybers4atter&s intent, it is not important in this case.

+a,ority: Beels ba" for Intel, bt can&t give relief b3c can&t e!ten" trespass of chattels here. Technological reliefavailable. Re0ects cyberspace as ppt&y, otherwise, infringe on >st amen"ment rights *sht "own free"om of speech'Internet is pblic free e!change of info if email goes into intranet system, will everyone have to rea" intranetre4irements for every email we sen" an" are we liable? Then internet will fall apart w3 trespass of chattel.

+inority: Time an" money spent by Intel. Its like sing their close" private system intranet *like ptting into privatemailroom of Intel yet ma0ority says that ( mst in0re3"amage system to have case of action. Intel invest in this yet (se against company. iscorage people from investing in intranet *an" br"en to stop ( is more efficient with cortsthan private

J



if owner an" give real owner notice of yor hostile claim. Statte "oesn&t re4ire entire lot to be cltivate", 0st most ofit.

Note: %avesyo own property n"er an" above yor property. So yo own property below *cave if its in yor pptyan" har" to 9+ b3c yo have to be open an" notorios.

Note: %laim of title is "iff than color of title. Claim of title is one way of e!pressing the re4&t of hostility or claim ofright on the part of the 9+. Color of title refers to a claim fon"e" on a written instrment *e.g. will or "ee" or a 0"gment or "ecree that is for some reason "efective an" invali" *not re4ire" in $nglan" an" in most 9merican 0ris"ictions. %olor of title: have more lenient 9+ re4irements. ,onstr%ctie aderse ossession: actal possessionn"er color of title of part of the lan" covere" by "efective writing is actal possession of all that the writing "escribes.*gets all ppty in "ee", sb0 to limitations *look at problems on p. >JP

Note: State of min" re4ire" of 9+er:>. Cb0ective stan"ar" state of min" irrelevant *$nglan"

since tre owner has case of action when any entry against tre owner, shol"n&t SoM rn then too?also, prpose of 9+ base" on tre owner, not 9+er

E. Goo"faith stan"ar" 1I thoght I owne" it.2 *sometimes in #Scorts take into accont of state of min" *b3c "on&t want to awar" ba"faith trespasser

. 9ggressive trespass stan"ar" 1I thoght I "i"n&t own it, bt I inten"e" to make it mine.2necess that 9+ starting off, b3c then 9+er won&t be inconsistent in prpose *?possibility: re4ire ba"faith 9+ to pay fairmkt vale of lan" after 9+ing to "eter consciosly wrong activity

Note: Shol" Mt= pay for ta!es for 9+ lan"? Note: Mt= move" things aron"' if se" EQ of lan", gets only EQ of lan" nless inclosre b3c yo have to show treowner *open an" notorios yor occpation

Note: 9+ an" C both have responsibility yet all states have mi!tre of rles %sse: mst have claim of right 6 min"set in which "emonstrate acting as legal owner& *right of e!clsivity

annillo! . ors?i 51;@;)0 ,t of N0 . 19:

Facts: bilt concrete walk that e!ten"e" onto +&s lot by >Q inches. + file" a complaint seeking an in0nction against&s allege" trespass. conterclaime" seeking a "eclatory 0"gment to "eclare he ha" 9+ of the lan".

Held : +ossession mst be e!clsive, continos, ninterrpte", visible, notorios, an" against the right an" interest ofthe tre owner.octrines on mistaken belief re4irement for re4isite hostile possession to sstain 9+:

-aine "octrine: 9+ only if 9+er intente" to claim title *hostile, yet if innocently "o, can&t 9+' rewar"s preme"itate", pre"esigne" hostility.%T "octrine: intention is irrelevant, as long as natre of act *entry an" possession asserts his title to ppty an""enies others' more responsibility to C.

%ts "eci"e on %T "octrine, an" then a""ress isse *E: notice, open an" notorios. Small encroachment that&s notnoticeable to tre owners re4ires tre owner to have actal knowle"ge of 9+ for it to be open an" notorios. Oet if har"for 9+ *who n"ertook with innocent3mistaken belief, then can pay market vale for property.

Note: This case is abot mistaken belief of 9+, an" small encroachments, yet C&s awareness is more < than 9+&s min"set.oes 9+&s action pt C on notice?

Note: -istaken bon"aries:octrine of agree" bon"aries: if ncertainty btw neighbors as to tre bon"ary line, an oral agreement to settle

the matter is enforceable if the neighbors sbse4ently accept the line for a long perio" of timeoctrine of ac4iescence: provi"es that long ac4iescence is evi"ence of an agreement btw parties fi!ing

bon"aries linesoctrine of estoppel: when > neighbor makes representations abot the location of common bon"ary an" other

nerighbor then changes her position in reliance on the representations or con"ct. Note: -istaken improvers: early common law harsh: re4ire tearing "own, irregar"less of goo" faith. -o"ern ten"ency:force conveyance of market vale for innocent 9+ers an" if inconvenience of innocent encroachment minor, then norelief 7economically efficient an" if lan" "oesn&t have lots of vale8. C isn&t responsible for being vigilant. iff if Cknew of 9+.

9ctal knowle"ge: yo "efinitely knowIn4iry notice: someone tol" yo%onstrctive knowle"ge: if reasonably person can see 9+, C shol" have checke" it ot.

%sses: > "i" C know of 9+' E if not, is + oblige" to convey "ispte" tract to ' who shol" pay for this?

. T$e ec$anics of +derse Possession

8o!ard . %nto 51;:>)

P



Facts: $veryone was pretty mch living on the wrong property. There was a srvey "one by the -illers, the Lnto&s pre"ecessors, which sai" that everything is fine. 9nother company later "oes a srvey an" reali=e" that there was a problem, an" (owar" has actal "ee" to Lnto&s property an" want it. Lnto wants to 9+ lan", by tacking on -iller&stime.

Held : The ct starts off by saying that the srveyors aren&t always accrate. %t re0ects the lower ct&s conclsion that therewas no cont&os se, ninterrpte" b3c the natre of the property was smmer home property. %t looks at natre an"con"ition of ppty similar to tre owner. The tacking problem in this case is that we have several transfers "ring the yrs.

They were innocent 9+s. The tacking principle is that you add up AP1 AP! " if you can do that for the entirestatutory period . That counts as if you have one AP for ten yrs. The subsequent transfers do not mean that each

AP starts a new #o$. +ermitte" with privity *color in title b3c legitimate an" innocent *so s4atter won&t profitfrom his trespass Strong pblic policy favoring privity 9+s.e!act "etermination of lan" *srveying "ifficlt so n"erstan"able that "ee"s messe" p *srveying not reasonableor cstomary

Note: prpose of 9+ to tili=e lan" b3c C not sing ppt&y an" slept on her rights. Note: 9+ rles favor economic e!ploitation of wil" lan"s-ac&ing : tack SoM yo get throgh color of title that U nknowingly 9+e" an" U inten"e" to convey to byer.

can tack many "ifferent parties together bt re4ire privity *legal reasonable transaction btw peopleColor of -itle: refers to a claim fon"e" on a written instrment *a "ee", a will or a 0"gment or "ecree that is for somereason "efective an" invali".

Disabilities: if person "isable *age of minority, of nson" min", or imprisone" at the time of the case thereof accres,after the SoM from the time the case of action accres, they may have >F e!tra yrs after sch "isability is remove". 9"isability is immaterial nless it e!ists at time when case of action accre" *when 9+ starte"

Note: arg of actal time of entry an" if open an" notorios Note: C&s legal stats at point of entry is only relevant

Note: if C "ies right before SoM, an" minor inherits lan", then "isabilities works. .P against t!e /o)t : %ommon law: 9+ "oesn&t rn against gov&t b3c stat owns its lan" in trst for all people so can&tlose lan" b3c of negligence of state employees. Sometimes, perio" longer, permit 9+ of gov&t lan" for only proprietarycapacity.

9+9ctal entry 6 implications for SCMCpen, notorios occpation *start SCM if constrctive notice to owner of recor"9"verse to owner&s legal interest *e!clsive A n"er claim of right *Mt= case?%ontinos for the stattory perio" tacking of 9+s? *pre"ecessors an" sccessors nee" to meet all re4irements, 9+E have

br"en of proof 6 har" w3o privity

;ee" privity to contine SCM for tacking.If all elements are met by entire stattory perio", still isse of:

> 9ban"onment by 9+> *SCM en"sE (ostile takeover from 9+> to 9+E *9+> attempts to get bt not sre

isability section:Cnly "isability at point of entry matters.Bor severe cases when SCM en"s, >F yrs longer %ort ses which ever one is longer of the two SCM.Cnly owner at magic moment *time of entry is relevant other "isability "on&t matter

)ris"iction 6 hesitant to allow hostile a"verse possession

*> 9+ volntarily gets transferre" property by previos 9+ with privity*E appears to have been violent takeover, someone force" someone else off lan"* 9+> aban"ons time frame that 9+> has ac4ire"

intrae4ity, impact on scenario on SCM against owner

I-+MI%9TIC; CB -9GI% -C-$;T: what has happene" over timeline at magic moment *who owne" it an" "isability can&t

tack on time, etc, "isability for ownership

PROLE (OR +D/ERE POEION

%onstrctive 9"verse +ossession, p. >JP'

V



> 1 ons and !as been in possession of 3004acre farm since 56* %n 70 . entered t!e bac& 80 acres nder color of a in)aliddeed from 9 #!o !as no claim to t!e land$ for t!e entire 300 acres* Since !er entry . !as occpied;impro)ed bac& 80 acres in

sal manner for period re(ired by So<* . brings sit to e)ict 1 from farm claiming title by constrcti)e .P*

+ns. C only ses front PF acre, so 9 gets JF an" C gets PF acres. Rewar" front PF to C b3c C hasn&t given it p both "i"n&te!cl"e each other with the lan" they se" now, so shol" get title *so no confsion later on ownership doesn%t have to have

quiet title& 'f fulfill AP requirements then quiet title is only court recognition&

E Sitation 3: sells invali" "ee" for lots > an" E to 9. 9 enters lot > as owner, bt "oesn&t se lot E. 9 ses U an" O to get both lot > an" E. 9 shol" only get lot > *if flfill 9+ re4irements for lot > b3c 9 "i"n&t give O notice *open an" notorios.Sitation 2: if U e!ectes transaction to 9 to sell both lot > an" lot E to U even tho U only owns lot >, then 9 still hasn&t given O*owner of lot E notice, so 9 only gets lot >.Sitation =: If U e!ectes transaction to 9 for lot > an" E, an" 9 enters lot E. Then 9 gets both lot > an" E, as long as no one 9+slot > while 9 was on lot E.

-rend : 9+ se" as title cleaning fnction. So a"verse possession se" to make 9 9+ C. SoM getting shorter.

9"verse +ossession Tacking, p. >PF'*> (: %an 9+E kick off 9+E an" then 9+ lan"?

A: Since 9+E "oesn&t have privity with 9+> an" hostilely take, then SoM starts p again with 9+E.)eneral *ule: relative claims to entitlement 9+> has right over 9+E bt C has rights over 9+> an" 9+E before SoM rns ot.

*ule+ Bor most part, nless big rle changes, 9+ has case of action against /, so feel better abot saying that 1if yo care"enogh abot lan" to ac4ire lan", then yo shol" have come to cort.2Time during litigation: Tacking "epen"s on whether / was open an" notorios "ring litigation to give C notice. *Compromise:

9+ tack on time of litigation to SoM from first time of entryA$at is eno%g$ to reent +P* Whatever it takes to keep 9+ off lan".

*E . enters Blac&acre ad)ersely and 1 is oner* 1 dies and lea)es to B for life and remainder to C* .fter So< !o ons land>

+ns* +*

Sbse4ent changes on ownership "oesn&t change anything b3c SCM starts rnning. % has case of action b3c / is wasting property an" their property interest. %t might say that % "oesn&t have claim b3c no possessory interest in ppt&y. So some say that% shol" go after 9 "irectly.

* 1 dies lea)ing Blac&acre to B for life remainder to C* ?it! 30 yo So< . enters in @5 and B dies in 03* ?!o ons land>

+ns* ,.

/ has life possessory interest an" % has a ftre possessory interest when 9 comes onto lan". Therefore, when in &V, 9 gets /&slife possessory interest, bt not %&s ftre possessory interest. 9 mst 9+ in both possessory perio"s to 4iet title in BS9 in lan".

9"verse +ossession isabilities, p. >P>'C owner an" 9 a"versely enters on &VP, age of ma0ority is >X, SCM K E> yrs. 9fter "isability, have >F yrs of break.9 "isability is immaterial nless it e!iste" at the time when the case of action accre".> 1s insane in A5 1 dies insane and intestate in 77 #;o disability pro)ision . .Ps in 75$

*a 1s !eir H is nder no disability in 77Since C was insane at entry an" ntil , C has >F yrs til SoM rns ot. +ns* 8

*b 1s !eir H is yo in 77*

9 SoM rns ot in EFF. ( will not be in age of minority in *>EH K EF>>. +ns* +

E 1 is ;o disability in 5* 1 dies intestate in 78* 1s !eir H is 2 yo in 78*VPHE> K V, ( can get lan" in JH>P K EF>F. +ns. +

RI8T LINE RULE Only disa"ility at 'agic 'o'ent co%nt.

1 is 6 yrs old , trns legal in &X, an" gets >F more years after that, which is &. C&s other "isability is legally irrelevant,

an" (&s "isability irrelevant. +ns. O gets lan" in & b3c C "ies in &F>.J 9 a"versely enters in &VP, an" then in &X C "isappears. VP H E> K &V / wishes to by from 9.+ns. 9 will accept hge "isconte" price from / b3c potential of C coming back before SCM. 9 can selling to / with privity*tacking. Cr ask 9 to 4iet title, *to show / that C isn&t aron" an" 9 in"icates yet "i"n&t complete stattes.+ns. If SoM has passe", then *> get 9 to 4iet title, after accomplishing all 9+. Then 9 can sell property to become newowner an" sell at fll price, or *E can get privity from 9 an" then attempt to 4iet title by 9+ an" get a "isconte" price.

1. +derse and %nder a clai' of rig$t

a. -st have a claim to the lan" a"verse to the owner. If possessor has owner&s permission to be onthe lan", then not there a"versely.

b. -a0ority view: what is 1a"verse2 "epen"s on actions of possessor, not her sb0ective intent.+ossessor&s act mst look like claims of ownership.

X



c. -inority view: the possessor mst have a goo" faith belief that she has title to the property.". ,olor of title: a minority of 0ris"ictions also re4&r possessor claim title via written instrment.

The written instrment can be something like a gorge" "ee", a "ee" from a G&or who "i" not ownlan", etc.

e. /on"ary "isptes: most cts will apply the ob0ective test to "etermine if one of the parties hasac4ire" title to the "ispte" strip of lan" by 9+. Ths, by ptting p a fence an" sing the lan" forthe nec nmber of yrs, the one party can ac4ire title to the lan".

2. ,ontin%o%s for t$e stat%tory eriod

a. This re4&t will be met when possessor maintains possession for SoM. b. Tac?ing: some cts allow 9+ to tack time in possession onto that of his pre"ecessor in interest&s

perio" of 9+. In or"er to tack there mst be privity of estate b3w the two 9+&s.

b. 9"verse possession might re4ire yo to have lan" that yo "on&t want *works the other way as wellc. Cne possibility 6 sb0ective test: good fait$' it&s mine. Some people say that basing it on a written instrment an"

color of title wol" be a goo" faith belief that it&s yors. 9nother goo" faith st" is the aggressive trespassing 6 it&snot mine, bt if no one kicks me off, then it&s mine.

". 9nother st" is the ob0ective st": Oor state of min" "oesn&t matter. Mooks like mine to a reasonable person.d& ,ur primary position of adverse possession was to create incentives for development&

e. The st" is that yo have to e!cl"e trespassers. Oo "on&t have to pt it to its most efficient se.f. What we generally have is people who generally believe they own the lan" investing in an" improving the lan".g. -hat does society get from having an adverse possession rule.

i. Oo go to by lan" from somebo"y. They claim to have owne" the lan" for EF yrs. It en"s p that the "ee"it not athentic. They boght the wrong lot. The owner says he can 4iet title the lan". Then, lan" stays in

commerce. Whatever "efects there are in a title, a"verse possession cleans these p. Three "iff perspectives: *> owner&s perspective' *E a"verse possession st"' * the rest of s who want someassrance that the lan" we are bying is the lan". If yo believe that we shol" only leave a"verse possession in goo" faith, then yo wol" only allow the color of title "efense.

h. +olicy consi"erations:

+P ros and cons*

Efficiency

(airness concerns

+d'inistratie ease

8%'an nat%re

+derse Possession 5against)*

1. Efficiencya. (ow efficient is it for a legal rle to e!ist that re4ires people to rn aron" to monitor their property an"

kick people off their lan"? b. Why shol"n&t 0st owning the lan" an" having a permit for the lan" be enogh *act of bying properly an"

recor"ing it 6 why isn&t that enogh of a level of activity to prevent 9+?c. The inefficiencies of owning property that re4ires sch pkeep.

2. (airness concerns

a. If property was ac4ire" with all fairness *honestly, that shol" be enogh to ac4ire the property.*efficiency an" fairness overlap

b. Shol"n&t owner be able to "eci"e what to "o with his lan" 6 let it lie fallow if he wants. Why shol" wesbstitte reasonable person&s 0"gment for owner&s 0"gment?

c. If the owner is nable to protect his interest *e.g. chil" gets lan" from gran"parents.". +roperty ta!es 6 almost all western states 6 goo" faith min"set' it also goes to fairness min"set. ;ot all

states re4&r that b3c the fact that yo col" have 9+ yo have to pay property ta!es3. +d'inistratie Ease

a. 9re they there becase they want to take it away from actal owner or are they there by mistake? We aretrying to fin" ot what&s going on in someone else&s min" 6 why can&t the recor" 0st be the recor"? .

b. Oo mst go to the property itself to see who else is there. Wol" someone else have thoght someone elselives there?

9. 8%'an Nat%re

a. It&s not a goo" i"ea for a legal system to fight against what a person wol" natrally "o. b. 9+ can case fighting an" violence. Oo mst "o what it takes to keep that person off yor lan". 9ll of

this means that if we have an 9+ rle, we are opening p the "oor the self help *violence



c. It "oesn&t pay to be a nice neighbor n"er this rle. Oo have to imply that they are going to 4iet titlewhat isn&t there. Cr yo have to worry that yo are going to teach them the rle, an" now they are going totry to go to ct an" try to take yor lan". Is it reasonable to have sch a rle that will reslt in conflict?

". (ow abot people who are incapable of monitoring their lan"s sick, ki"s, etc..

9ll of the above says that 9+ cases nnecessary conflict.

+derse Possession 5"enefits)*

1. Efficiency

a. Man" is ot there, an" there is one less factor affecting its vale.". Cleaning title 6 gives s title certainty. 9ssrance that yor title is goo", an" someone cannot swoop "own

from the past an" assert that the lan" is hers. We nee" some SoM on owner. %leaning title raises vale of lan".c. The nee" to have staled claims close out . Wealthy people go for shorter stattory perio"s becase they are

bying lan" with the intention of ptting it back on the mkt for a profit 6 trnover with assrance.d. Want ability to transact with or lan".

2. (airness concerns

a. -in"set was really important if yo are worrie" abot fairness.". 9c4iring property by captre of by good faith. Mess social tility from ac4iring the lan" violently than

ac4iring lan" to tili=e it effectively.

c. Cnce yo set the rles in motion yo are getting a reduced cost . Getting re"ce" cost in prchase of lan" → in

e!change for that yo pay a small amt to monitor the lan".d. Won&t waste a valable asset. Satellite e!ample 6 yo have to show that yo vale yor space enogh that yo

want to se it. Underlying roerty la! is "elief # eac$ iece of land is in$erently secial %ni&%e

irrelacea"le li'ited reso%rce on lanet3. +d'inistratie Ease

a. #n"erlying belief that every single tract of lan" is ni4e an" potentially more valable to one person ratherthan another.

9. 8%'an Nat%re

a. (aving worke" to get the property an" the i"ea that people gain reliance interest in their work pro"ct. Thestatic in society if we "eci"e" that it "oesn&t matter how mch yo pt into the lan".

i. -ost common problem in 9+ is boundary disputes. Someone pts p a lan" withot ptting p a fence or pts pfence wrong way.

0. Property taxes: Sometimes re4&" for 9+ b3c: *> Goes to goo" faith element whether yo actally think yo ownthe lan", an" *E Bairness if yo&ve been paying ta!es then shol" own it.

k. Constructive AP K legal conse4ence of what yo&ve "one is as if yo&" satisfie" the elements of 9+' have privity

i. -a0ority states 6 on&t nee" color of title 6 "oesn&t show yor activities to get that "ee". Oo col" have a good faith belief that own lan" w3ot the "ee".

ii. Reach of color of title for 9+:l. Notice: The rles of 9+ are inconsistent in the prospective they take. It seems that sometimes all yo are caring

abot is the actal owner an" other times it seems that all that yo are caring abot is the 9+&s rights.m. Color of title is limite" by a respect for the owner&s prior in time failing to get in the space. Oo are e4ally

blameworthy, so we are going to leave the property titles where they lay.

Disa"ilities

isability is wrt to age of minority, of unsound mind , or imprisoned . Stattory limitations on how long ntil action can be broght against the "isable" person Y of yrs before action can be broght after the "isability is remove". Notice: A disability is immaterial unless it existed at the time when the cause of action accrued .+T +I, OENT

+P +gainst t$e o4t

Notice: Oo can&t have 9+ against the gov&t, bt the gov&t can gain 9+ over yor lan". oble st" problem.

+P Re'edies for encroac$'ent:

9 K owner of recor"/ K encroacher K 9+

9 /

/&s encroachment

>F



There are three re'edies that cts have chosen:1. / mst tear o%t encroac$'ent

a. /a" faith 6 / took lan" intentionally2. / can ?ee encroac$'ent !Fo any ay'ent */ can 4iet title encroachment

a. Sbstantial br"en to / to tear it ot' goo" faith3innocent b. What are the circmstances that this can be chosen?

i. / has met all the re4&ts of 9+.ii. In casebook n"er bon"ary "isptes

iii. / keeps encroachment if encroachment isn&t de minimis.iv. 9greement, an" they&ve live" with it for 4ite a while. It "oesn&t meet the stattory perio", bt yo have an

agreement backe" by yor actions an" agreement.v. 9 encorage" them to "o it, an" then / accepte" that an" acte" in relying on it. 9 wol" be estoppe" from

e!erting power over that lan".3. / can keep encroachment only if / can pay 9 for that piece of lan".

a. If / refses to pay the ct or"ere" amt of money, his choice is to tear ot the encroachment. b. The encroachment was innocentc. %ost too great to remove encroachment". Society&s intereste. 9 is likely to e!ert monopolistic power f. $vi"ence is f==y' ct is nclear abot what actally happene".g. Bor whole lots of lan", it&s an all or nothing kin" of "eal.h. #n"er what circmstances wol" a ct choose the amt / pays 9?

i. $.g. / pays 9 any price that is less than tearing ot encroachment *sch as bil"ing. 9 "oes not have toagree. 9 can e!ert monopolistic power. We take that monopolistic power away when it is a hospital, etc.The ct forces the transaction an" "eci"es the amt / will pay 9 *ct "oes not leave it p to bargaining powerof parties.

>>



,$ater 3* Possessory Estates

(ee si'le ter's

Heirs: if person "ies intestate *w3o will, then goes to heirs. (eirs are persons who srvive the "ece"ent. Birst isse, then if no isse, parents, an" then to collaterals' no one has heirs while they are living.

%sse: escen"ants *chil"ren share e4ally %ntestate: person who "ies w3o a will-estate: person with will-estator;testatri" person who makes wills

sc!eat : person "ies w3o will an" w3o heirs, property goes to the State Fee tail : "escents to 9&s lineal "escen"ants *1heirs of the bo"y2 generation, an" e!pires when 9 an" all 9&s "escen"ents are "ea".

*has reversion or remain"er after it' abolishe" this state: bn"le of rights with interest in lan" measre" by something *breaks p timeline Fee simple absolte: greatest estate yo can give Fee simple determinable: bn"le of rights w3o a specific right in bn"le, bt heir can 9+ specific right that&s ot of bn"le *bt SoM

only starts when owner knows of con"ition, possibility of reversion Fee simple sb,ect to condition sbse(ent : give all bn"les of rights in BS9 yet sb0ect to "eterminable factor *if she ses restricte"

rights, than property may be taken back by owner with atomatic snap back of lan"' SoM starts when restricte" factor is se",regar"less of owner knowing' option to retake lan" *right of entry

"ectory interest !older : power to have right of entry *not original grantor Fee simple sb,ect to e"ectory limitation #e"ectory interest$: acts like fee simple "eterminable, bt has someone else e!ecte rights

of owner. Cnce grantee "oes this openly an" notorios, grantee can start 9+ to obtain lan"

Re)ersion: grantor gets something back Remander : ftre interest that follows life estate *ftre interest to r" party, becomes present possessory interest in fee simpleabsolte

Con)eyance: giving lan" away, permanent, can&t take it back like lan"lor"tenant rles, previosly calle" 1term of years2 *0st like lifeestate e!cept measre" time by years as oppose" to life, an" now in conveyances by contract lawN

Pr atre )ie: something measre" by someone else&s life *if yo by someone&s life estate Forfeitre restraints: BS, BSS%S, BSS to $I

Contingent remainder : If gap btw life estate an" contingent remain"er, then reverts to C.*eg. if contingent remain"er is that ( gives 9 great fneral.

Possibility of re)erter : ftre interest remaining in the transferor or his heirs when a fee simple "eterminable is create". Rig!t of entry: when owner transfers estate sb0ect to con"ition sbse4ent an" retains the power to ct short or terminate the estate Ftre interest in transferees: veste" remain"er, contingent remain"er an" e!ectory interests

A$ite . ro!n0 *S%t of Tennessee, >VV, p. EE>'If langage is ambigos, shol" we rewrite lang in will sing wor"s in bo!es' see what )essie Mi"e inten"e" *what yo believe an"what other people see%an we keep alienation of lan"? -any possible interpretation of )essie Mi"e&s will:Ct assmption: if "on&t write con"itions categorically clearly, then go to B.S.9 *pll towar"s BS9 6 cts encorage marketability

Policy: %t nee" clear intent. )essie Mi"e&s attempte" restraint on alienation mst be "eclare" voi" as inconsistent with the inci"entsan" natre of the estates "evise" an" contrary to pblic policy. ;otice to other holographic will writers. Trying to effectholographic wills yet writers probably won&t research cts "ecisions abot this.

3 !ays to get roerty*

*> Testate sccession' *E Intestate sccession' * Inter vivos conveyance

9 t$ings yo% do !it$ land*

*> create them' *E se them' * n"o them' *J legal implications

Iss%es*

*> (ow "o yo create terms of conveyance in "rafting an" clean p position of ambigos wor"s? %hoosing bo!es*E Megal implications of present interest *ta!es, etc.' Transferability "ring life *strictly for testimonial transfer* 9re yo still bon" to "ee" *on pain of losing the lan"? %an yo n"o them *esp after >FF yrs? $ffects lan" marketability,

some of rles ct off b3c too long *too mch br"en*J 9+ *4iet title to fee simple absolte after SoM/AP only gets true owner%s property rights 0if owner only has life estate AP only gets life estate of owner if quiet title

Pres%'tion: 1To 92 as BS9 as oppose to life estate. Oet cleanest to convey BS9 is 1To 9 an" his heirs2

>E



Note: %an only convey rights that yo have *taking ot rights that states have taken away 6 eg. no right to "o nothing with lan" 9+, brning tires

Note: every little piece has to be acconte" for *eg. if every piece of the time line hasn&t been acconte" for, then owner still has piece

of right an" has right to reversion Note: loop back 4ality in reversion an" right of entry in ftre interests

Competing pblic policy concerns: when "oes clock start rnning for SoM w3o open an" notorios? -arketability of lan" importantso get ri" of br"ens more 4ickly. Oet grantor has option of sing BSS%S over BS if grantor wants protecte" interest so "oesn&thave br"en of monitoring3spervising.

Note: %9 "oesn&t have BS *H possibility of reverter so BS becomes BSS%S an" reverter becomes power of "etermination.%ommon rle still vali" tho. iff 0ris" narrow categories "ifferently.

23A4P$2#+

(ee si'le deter'ina"le follo!ed "y ossi"ility of reerter

-o . and !er !eirs so long as E if s!e does E* t!e ppty s!all re)ert to me or my !eirs*

Gnfair to grantor ?!ene)er t!e condition occrs .P So< cloc& starts rnning*

(ee si'le s%"=ect to condition s%"se&%ent !it$ rig$t of entry

-o . and !er !eirs bt if . E % or my !eirs s!all !a)e t!e rig!t to #enter;reclaim$ t!e ppty Gnfair to conditional !older #.$* ?!ene)er yo claim somet!ing and rebtted t!en cloc& rns*

(orfeit%re restraint

-o *? !er !eirs bt if anyone attempts to sell t!e ppty my !eirs s!all !a)e t!e rig!t to enter and reclaim .Megal commnity spports this *forfeitre restraint. Grantor concerne" abot spen"ing, someone conning grantee. She knows an"

cares abot not losing ppt&y.

Disa"ling restraints-o *?* !er !eirs bt if anyone attempts to sell t!e ppty sc! sale s!all be )oid*Oet invali" forever *restraints, bt "ifferent if attache" with life estate.Megal commnity "oesn&t spport this. +ossessory interest can mislea" everyone by saying that property is hers an" sale is voi".

%re"itors can&t reach her tho they can make sre it&s yor ppt&y. *possessory rights br"en on cre"itor yet a""e" great amt to

cost to cre"it companies.$thical 4estion: 0ris" "eci"e whether "isability an" forfeitre restraint look at "ifferently.

Restraint on alienation: 7not getting fll ppty rights8 "iscorage improvement on lan" *can&t sell lan" or improve for mortgaging,concentration of wealth, make lan" nmarketable, owner&s cre"itors can&t reach property *something w3 property interest.think abot whos concerne", rltship btw ppl abot things w3 respect to cre"itors

5orfeiture restraint 6isabling restraint 5ee simple absolute ;CT CL9O ;CT CL9O $ife 2state CL9O ;CT CL9O

a?er . Aeedon, *S%t of -ississippi, >VE, p. EF' 'o!n ?eedon left !is ife .nna a life estate and t!en remainder to .nnas c!ildren and if no c!ildren re)ersion to !is grandc!ildren

#Henry Sara! <oise$Icontingent remainders b;c .nna mig!t still !a)e c!ildren*

%sse: o contingent remain"er have present property interest? Dispte: if 9nna sell off lan" b3c she nee"s money even thogh her gran"chil"ren have ftre interest an" "esire to keep lan" for

ftre greater economic DD.1ptions:*> Release: transaction of giving interest to another *can create fee simple absolte

pt ftre an" present possessory hol"ings together *yet 4estion nascertaine" people'*E )ohn col" have given 9nna right to sell property as long as corps *principal given to gchil"ren after she "ies bt ha" to have set

p e!plicitly alrea"y'* look at )ohn&s intent *corts have to "eci"e, looking at interest of all'

*J cts look to see if it&s wastefl if we prevent sale. *%ts try to make best for all parties: partial sale of lan" an" then se interest of procee"s of lan"

%ts look at best interest of all possessory interests' "iff cts se "iff st"s of necessitycort can&t re0ect economic waste *not tili=e fll potential for present possessory interestlegal bon"aries of waste e!amples:ftre possessory interest e!pect lan" was it was given to present possessory interest

-A#T2 2xamples:1) +nna "%ilds a gas station. *argably an improvement

Soln: 9nna remove gas station *cost a lot when ftre interest gets lan". Oet cts take into acct her age. *present3ftre possessory interest' permanent harm*?, *H effect *? 6 increase" ppt&y vale?

>



2) +nna 'ines t$e 'inerals. *re"ce "isptes an" nonrenewable resorces longtermSoln: if grantor ha" mines open, then 9 can mine bt if 9 opens mine then can&t mine 1reasonableness constraint2 *b3cgrantor ha" option to "iscss mines if he knew abot them by closing them off, etc. or else 9 might "iminish ftre possessory interest.re"ces "isptes3concerns on nonrenewable resorces.9nna has incentive to mine har"core for her life estate b3c shortterm

3) +nna allo!s t$e far'land to "e %n?e't.

epen" on whether lower vale of ftre interest an" permanent "amages, *potential ppt&y foreclosre 6 gov&t sforeclose on only present possessory interest, i" of ppty *nisance, 9+, liability

9) +nna fails to 'aintain ins%rance on t$e $o%se.

Mife tenant n"er no "ty to insre bil"ings on lan". Oet can&t in0re ppt&y. *C Ct : violation of waste principle allows ftre possessory interest to get present possession.

-rend : before only lan" was incl"e" an" now changing to incl"e other ppt&y *strctres' waste laws: ma"e before property incl"e" strctre. <egal dties: 9+ *monitor, no in0rios activities

Tr%st "etter !ay to $olding roerty

Trst *trstee: BS9 *power of trstee who gives e4itable "ivision of interest for all parties 6 trstee has fi"ciary responsibility 1To trstee in trst for 9 "ring her life an" then to my gchil"ren from previos marriages.2<len"ers "on&t like3ncomfortable property of trst<< trsts "oesn&t solve all problems bt trstee responsible for working problems in trst

a$ren$olC . ,o%nty oard of c$ool Tr%stee , 9pp%t of Il, >X>, p. EJE'

ee" provi"e" that Jt!is land to be sed for sc!ool prpose only ot!erise to re)ert to /rantors !erein*KIsse: BS or BSS%S *possibility of reverter or right of reentry for con"ition broken by ftre interest

BS: limite" rights, right taken on otset *con"itions, SoM 9+ clock starts rnning right away' once con"ition broken, thencan snap back happen right away *better for tenants 6 encorage 9+BSS%S: after giving yo all rights, con"ition that may remove entire thing from yo, 1right of entry2, SoM *9+ "oesn&t

start rnning ntil right of entry e!ecte" *better for ownersTren": collapse fee simple "eterminable an" fee simple sb0ect to con"ition sbse4ent into BSS%S?

*/right Mine Rle: lan" owners win' easier for corts3lawyers *consistency' clarity9ct: right of reentry con"ition broken an" possibilities of reverter are neither alienable or "evisable 7will8 *yet inheritable via

intestate an" can&t give ftre interest by will or by inter vivos conveyanceis this act only in Illinois?5estion: Was possessor given something that was alrea"y limite" or was there right that will allow someone to take all rights away.%ommon law: What "oes it take to terminate yor involvement with ftre possessory interest? (ow "o yo transfer it?

%t: no specific langage re4&" when no ambigity' se formal langage to eliminate ambigity%reative aspect: can se lang to spell ot con"ition' conse4ences of ftre an" present possessory interest

P*,7$24 : p. EQF*E 1 con)eys Blac&acre Jto . and !er !eirs so long as t!e premises are not sed for sale of beer ine or li(or and if beer ine or

li(or is sold on t!e premises 1 retains a rig!t to re4enter t!e premises*K Sbse(ently . opens a restarant on Blac&acre t!at

ser)es se)eral dis!es coo&ed in ine or flamed in brandy and at Snday brnc! offers a complimentary glass of c!ampagne* .s

restarant is sccessfl and 33 yrs after its opening B ants to by it and add a bar* .d)ise B*

.ns: ncertain if BS or BSS%S*a If (D an" selling wine, beer, then 9 passe" SoM, might have 9+e" it. /y for lower price, by 4iet title by tacking time w39&s time *or ask 9 to 4iet title firstlegal research*b If (, an" violating con"ition, then bigger problem b3c grantors can come back at anytime.

Therefore, / *byer wants BS, an" C *grantor wants BS%S%. -ch ri"es on type of will. Factors to consider : Grantor&s intent, power of langage itself in"icating forfeitre, latit"e of present interest v. protectionof ftre interestSolns: / ask C to release ftre possessory interest *make into BS9

Isses with granting lan":> Megal implications: when 9+ SoM starts rnningE Transferability: of ftre interest *possibility of reversion an" right of entry an" thr what means Waste "octrine:

Mife tenant: ftre interest hol"er can only ob0ect to present interest&s sage on certain gron"s: that present interest is"estroying ftre ppt&y vale. *%t opinions vary

eg. mining *if alrea"y opene", etc.,

>J



eg. p. EQF * Can yo drill oil if only for sc!ool prposes it! ftre interests?%orts view:*> ifferentiate grantor&s "esire to get ppt&y back *with life estate with right of reversion*E +resent tren" to give 1reversion an" right of entry2 increase" ppt&y rights A power

o%ntain ro! Lodge No. 62 . Tosco, %t9pp of %9, >PX, p. EQ>' Pre)iosly: if con"itions make lan" inalienable, then sever. No: look at how con"ition makes lan" alienable.%ts: Invali" restraint on alienation "oesn&t necessarily affect3nllify the con"ition on lan" se. Oet with "onations to organi=ations, cts

allow more se restrictions to encorage "onations.G,ondition of $a"end%' cla%se !$ic$ ro$i"its aellant fro' selling or transferring t$e land %nder enalty of

forfeit%re is an a"sol%te restraint against alienation and is oid.H

Different aroac$es to restraints on alienation and %sage for land*

*> If restraint makes alienates lan" an" too restrictive, then present possessory can 4iet title for BS9.*E If absolte restraint too inefficient then mst try to trn it off, yet can&t "o so if absolte restraint implemente" right after yo get it* If con"itions are spitefl, not okay *illegitimate in conte!t of real ppt&y

generally: corts allow 4irky con"itions on lan", bt shol" have way to sht them off *b3c makes lan" too alienable.

In? . ,ity of ,anon

5ee simple determinable with possibility of reverter 8 fee simple absolute.J-o t!e city so long as sed for a par& and if not property s!all re)ert*K

%sse: how "o yo "ivi"e p money from lan" that highway people pai"?G&ee G&or

ZZZf.s." poss of reverter

If receive" D>FFL, then shol" it be,1D>FFL 6 g&ee *f.s.". K g&or *poss of reverter21D>FFL 6 g&or *poss of reverter K g&ee *f.s.".2 yet poss of reverter vale is very low, also have to figre ot probability

of reverter *to see cost of g&or *if pblic stops sing it as a park.

g&ee *pblic park, hge liability H g&or *poss. of reverter, more potential as BS9, bt less possibility of happening [ D>FFL *BS9?

Cther basis to make "ecision of "ivi"ing lan":Give back D that grantee pai" for lan"What every one inten"e": pt money into trst *se" for park prposes as well.

b3c not enogh money for replacement park +roblem of BS9 6 BS K grantor&s money is that BS K DF for private prposes b3c too many restraintsWhenever con"ition fails, grantor gets lan" *moneyGov&t take pblic lan"s *b3c then no owners, 9+, etc, an" if state vales replacement park vale, wol" solve problem.

(o%r aroac$es t$at co%rt %ses:> (ave rle that says, grantor has it if violation of con"ition an" grantor takes allE Rle that grantee takes all *0stification: if grantee pays for the appreciation of lan" ivision of D *cort chose this, historically, took while for poss of reverter to have rights.J Cther corts: give all to grantee lan", when grantee "i"n&t break con"ition, then give this money later on to grantee, esp har" to

evalate "ivision, yet money still impresse" with con"ition 1pblic park prposes2.

-a0ority: give to grantee b3c grantee ha" no choice bt to break the con"ition. *sell lan" to gov&t

-inority: grantor gets all lan" procee"s *"esire to incentivi=eCther: "ivi"e p lan"

Not resonsi"le for defeasi"le life estate* . 2@<72@@0 only !$at4s on t$e aer.

Pro"le'*

p. EPPJ-o my ife ? for !er se and benefit so long as s!e remains nmarried*K He de)ises t!e reside of !is ppty to !is dag!ter D a

c!ild by an earlier marriage* ? does not remarry bt mo)es into t!e apt of a male friend .* ? dies and de)ises all ppty to

.* ?!o ons Blac&acre>It&s a "efeasible life estate *go to "aghter 7con"itional8, 1for her se an" benefit2

>Q



efeasible fee simple *not life estate, 1benefit2 K heir' se an" benefit *can sell property so fee simple, 1so long as2 BS? /t can

have life estate "eterminablepresmption: hasn&t se" to langage to specify estate, so assmption is BS *largest estate possible. We "on&t even haveto talk abot how living someone is relevant."aghter%an assme its Bee simple sb0ect to con"ition sbse4ent if ambigos btw BS an" BSS%S

life estate 1for her se an" benefit2 v. BS ct shortwhat is it for the wife?

Bee tail: keep property in line of family *bloo" line, fll ses of property *forces yo to have chil"ren an" to contine bloo"line btcan&t sell it.

Cptions: fee tail BS9 *to 9 an" her heirs or with contracts attache" to ppt&y, 0st as *BS, BSS%S BSS%S

>P



,$ater 9* (%t%re Interests

+. Introd%ction

Inter vivo conveyance instea" of will:J-o . and .s !eirsK If no ftre interest asi"e from this, then 9&s heirs *which aren&t "etermine" ntil after 9 "ies has no ppt&y

rights3entitlementJ-o . for life t!en to .s !eirsK 9&s heirs aren&t living people *b3c ntil 9 "ies, no heirs, yet heirs have contingent remain"er in BS9.

sometimes "on&t know who 9&s heirs are at en" of 9&s life estate *life estate can en" before "eath of 9, then grantor hol"s

/lackacre ntil 9 "ies an" has heirs.C: reversion in BS9 sb0 to e!ectory interest *ntil 9 "ies, C hol"s ppt&y interest for 9&s heirs9&s heirs: e!ectory interest in C&s reversion an" contingent reversion *base" on 9&s "eath

eath isn&t consi"ere" a contingent event *reversion

p. EV>*> 1 ons a fee simple and ma&es t!e folloing transfers* %n !ic! cases is t!ere a re)ersion>

*a 1 con)eys Jto . for life t!en to B and !er !eirsKans: C "oesn&t have reversion.*b 1 con)eys Jto . for life t!en to B and t!e !eirs of !er body*K

ans: C has reversion

*c 1 con)eys Jto . for life t!en to B and !er !eirs if B attains t!e age of 23 before . dies*K 9t the time of the conveyance / is>Q yo. *If there is a reversion, what happens to it if / reaches E> "ring 9&s life?ans: C has reversion ntil / reaches E> years of age.*" 1 con)eys Jto . for 20 yrs*Kans: C has reversion

*E 1 con)eys Blac&acre Jto . for life t!en to B for life*K C sbse4ently "ies with a will "evising all of C&s property to %. Then 9"ies an" / "ies. Who owns /lackacre?

ans. %

Contingent remainder : permits transferor to let ftre events "etermine who takes property pon the life tenant&s "eathLested remainder : transferor "eci"es on otset who takes property pon the life tenant&s "eath Remainder: *> ftre interest that waits politely ntil the termination of the prece"ing possessory estate, at which time the remain"ermoves into possession if it is then veste", *E capable of becoming posessory at the termination of the prior estate

"ectory interest : "ivest or ct short the prece"ing interest, ftre interest in a transferee that can take effect only by "ivesting

another interest

Diff bt remainder and e"ectory interest : taking possession as soon as the prior estate en"s an" "ivesting the prior estate' legal

conse4ences: ta! prposes, conveyance.

+roblem p. EV1 con)eys Blac&acre Jto . for life t!en to B if B gi)es . a proper fneral*K oes / have a remain"er or an e!ectory interest? If it isan e!ectory interest, whose interest will be "iveste" if / gives 9 a proper fneral?

.ns: %ontingent remain"er. Reversion in C an" then / gets it after proper fneral.

Lested remainder if : *> it is given to an ascertaine" person, *E it is not sb0 to a con"ition prece"ent *other than the natral

termination of the prece"ing estates.In"efeasibly veste": remain"er is certain of becoming possessory in the ftre an" cannot be "iveste". If veste" remain"er "ies

before remain"er vests, then heirs get it.@este" sb0ect to open3veste" sb0ect to partial "ivestment: if laterborn chil"ren are entitle" to share in the gift. Jto . for life

t!en to .s c!ildren and t!eir !eirs*K If / is 9&s chil", t hen /&s e!act share is nknown b3c 9 might have more chil"ren later on.@este" remain"er in a fee simple sb0ect to "ivestment: 1to . for life t!en to B and !er !eirs bt if B does not sr)i)e . to C and!is !eirs*K epen"s solely on how conveyance is written. If con"itional element incorp into "escription of, remain"erman, thenremain"er is contingent' bt if, after wor"s giving a veste" interest, a clase is a""e" "ivesting it, the remain"er is veste". % Kcon"ition prece"ent' / K con"ition sbse4ent

Contingent remainder if : *> nascertaine" person, *E contingent pon some event other than the natral termination of the prece"ingestates *sb0ect to con"ition prece"ent

>V



• If first ftre interest is contingent remain"er in fee simple, then En" ftre interest in a transferee will is also contingent

remain"er.

• If first ftre interest in transferee is veste" remain"er in fee simple, then En" ftre interest in a transferee will be a "ivesting

e!ectory interest.$!ample: Jto . for life t!en to t!e !eirs of B*K / is alive an" /&s heirs are nknown so /&s heirs is contingent remain"er.

+roblems p. EVQ*> Jto . for life and in t!e e)ent of .s deat! to B and !er !eirs*K Is /&s remain"er veste" or contingent? If / sbse4ently conveys

her interest back to C, w hat "oes C have?9 K life estate/ K contingent remain"er in fee simple absolte sb0ect to e!ectory interest *veste" remain"er?C K right of reversion in fee simple "eterminable

C$S / (9@$ @$ST$ CR %C;TI;G$;T R$-9I;$R? I T(C#G(T IT W9S @$ST$ R$-9I;$R.

*E Jto . for life t!en to B for life t!en to C and !er !eirsK9 K life estate/ K veste" remain"er *ftre interest in life estate% K veste" remain"er in BS9

Jto . for life t!en to B for life t!en to C and !er !eirs if C sr)i)es . M B*K9 K life estate/ K veste" remain"er in life estate% K contingent remain"er in BS9C K reversion in fee simple *if life estates en"s early or if % "ies before 9 H /

* Jto . M B for t!eir ,oint li)es t!en to t!e sr)i)or in fee simple #absolte$*KSrvivor K contingent remain"er *srvivor has contingent remain"er:

con"ition prece"ing to srviving, on srviving the other party.

*J Jto . for life t!en to .s c!ildren !o s!all reac! 23*K 9&s ol"est chil" is >V.Right now, contingent remain"er yet when / trns E>, it&ll be veste" remain"er sb0ect to open3partial "ivestment.

Jto . bt if .s c!ildren dont reac! age of 23 t!en to D*K

/ at >V yo K contingent remain"er K contingent remain"er

Jto .s c!ildren bt if .s c!ildren dont reac! age of 23 t!en to DEK

Pre)iosly, if 9 "ies an" / isn&t E> yet, then n"er "estrctible "octrine */ loses remain"er an" C has reversion in BS9which frthers marketability.

No, if 9&s life estate en"s before / trns E> yo, C mst keep it ntil con"ition met so that / gets ppt&y at age E>. %ontingenremain"ers aren&t "estroye" if they aren&t veste" by the time the life estate en"s. ;o "estrctibility "octrine now.

Jto . for life t!en to .s c!ildren bt if none of .s c!ildren reac! age of 23 t!en to -B .2/ at >V yo K veste" remain"er sb0ect to "ivestment *in BS sb0 to "ivestment in e!ectory interestIf 9 has no chil"ren K contingent remain"er 9&s chil"ren K veste" remain"er sb0 to open *sb0 to e!ectory interest K T/If 9 "ies before / trns E> yo, then it goes to / ntil we reali=e that / won&t be E> yo, b3c / is veste".

-rend : if ambigos, constre in favor of veste" remain"er ifference btw veste" an" contingent remain"er:

*> veste" remain"er accelerates into possession *either at en" of life tenant&s "eath or when life estate en"s before life tenant&s"eath' contingent remain"er can&t be possessory so long as it remains contingent.

*E %ontingent remain"er: is not assignable "ring remain"erman&s life nreachable by cre"itors, Oet to"ay, look as ppt&y

interests *transferable "ring life an" reachable by cre"itors* %ommon law contingent remain"ers are "estroye" if they "on&t vest pon termination of the prece"ing life estate, whereas

veste" remain"ers were not "estrctible in this manner *J %ontingent remain"ers are sb0 to R9+, whereas veste" remain"ers are not.*Q Some states, %R can&t se for waste, partition, trst acconting

$!ectory interest:

>X



Btre interest in a transferee that mst, in or"er to become possessory,*> "ivest or ct short some interest in another transferee *shifting e!ectory interest*E "ivest the transferor in the ftre *known as springing e!ectory interest

fee simple sb0ect to an e!ectory limitation: fee simple that pon the happening of a state" event, is atomatically "iveste" by ane!ectory interest in a transferee *either in possession or in remain"er

sally treate" as contingent interest b3c sb0 to con"ition prece"ent an" "o not vest ntil they become possessory

$!ample >Q. 1to . for life t!en to B and !er !eirs bt if B dies nder t!e age of 23 to C and !er !eirs*K / K >Q yo. / hasveste" remain"er sb0 to $I *or sb0 to "ivestment by %&s e!ectory interest if / "ies n"er age E>.

+roblems p. EXQ*> C wants yo to "raft something where convey /lackacre to his son 9 for life, an" pon 9&s "eath C wants /lackacre to go to 9&s

chil"ren if any are alive or, if none are then alive, to C&s "aghter /. %onsi"er the following conveyance, all carrying ot C&sintent bt each creating "iff ftre interests.

*a 1to . for life t!en to .s c!ildren and t!eir !eirs bt if at .s deat! !e is not sr)i)ed by any c!ildren t!en to B and !er!eirs*K 9t time of conveyance, 9 is alive an" w3o chil"ren.

9 K life estate9&s chil"ren H heirs K *if chil"ren veste" remain"er sb0ect to open in fee simple sb0ect to e!ectory limitation

*"efeasibleK *if 9 is alive A no chil"ren: contingent remain"er in fee simple sb0ect to e!ectory limitation *"efeasible

/ H heirs K contingent remain"er *contingent pon if 9&s chil"ren "ie before 9&s "eath with e!ectory interest

%f C M D #tins$ are born to .9&s chil"ren K veste" remain"er sb0 to open in fee simple sb0ect to e!ectory limitation *"ivesting con"ition: % H

H other chil"ren "ie before 9&s "eath %f C dies and . sr)i)ed by B M D

K BS9/ K "oesn&t get anything.%&s heirs K get BS9 as well *share with b3c since "ivesting con"ition wasn&t met, veste" remain"er stays with %

even tho % "ie" b3c srvive" %f at .s deat! !e is not sr)i)ed by any c!ildren t!en to B M !er !eirs**b Jto . for life t!en to sc! .s c!ildren as sr)i)e !im bt if none of .s c!ildren sr)i)es !im to B and !er !eirs*K

9 K life estate9&s chil"ren K contingent remain"er in BS9 sb0ect to e!ectory limitation *for "ivestment in $I, all have to "ie before 9

/ H heirs K contingent remain"er.C K reversion if have to wait for con"ition to vest *if C is not grantor an" is r" party, then it&s $I

%f contingent remainder its folloed by contingent remainder*

.s soon as one of .s c!ildren sr)i)ed . t!en its )ested bt if none of .s c!ildren sr)i)es !im it goes to B M !eirs*

$!ample: 1to . for life t!en to B if B gradates for GC<. la sc!ool*29 K life estate/ K contingent remain"erC K reversion

$!ample: Jto . for life t!en to B if B gradates for GC<. la sc!ool bt if B doesnt gradate from GC<. la sc!ool t!en

to C*K/ K contingent remain"er C K reversion hol"ing as fee simple sb0ect to e!ectory interest% K contingent remain"er

*c 1to . for life t!en to sc! of .s c!ildren as sr)i)e !im bt if none sr)i)e t!en to B M !er !eirs*K 9 is alive an" with Echil"ren % an" .

9 K life estate9&s chil"ren K contingent remain"er in BS9 *tre even thogh % H are alive *b3c its contingent "epen"ing onwhether 9&s chil"ren srvive 9 if 9&s life estate en"s before 9&s "eath/ K contingent remain"er in a BS9C K reversion in fee simple sb0ect to e!ectory interest

9&s chil"ren K e!ectory interest/ K e!ectory interest

>



$!ample: 1to . for life t!en to B M !er !eirs bt if . is sr)i)ed at !is deat! by any c!ildren t!en to sc! sr)i)ingc!ildren*K

9 K life estate/ K veste" remain"er in fee simple sb0ect to e!ectory interest *"efeasible fee, e!ectory interest hol"er *b3c notgrantor9&s chil"ren srviving at 9&s "eath K e!ectory interest in BS9

*E Serios "rafting flaw if grantor wante" something "ifferent from what actally happene".Jto son . for life t!en to .s c!ildren and if . dies ;o sr)i)ing c!ildren to my dag!ter B and !er !eirs*K 9 has chil" %, % has chil". % "ies. 9 "ies srvive" by gran"chil" an" his sister /. Who takes lan"?

9 K life estate9&s chil"ren srviving at 9&s "eath K contingent remain"er in BS9/ H heirs K contingent remain"er oes gran"chil" cont as 1srviving chil"ren2?< 2xpectation: chil"&s share goes to his3her chil"ren by right of representation 1isse2

* T "evises D>FL 1to my cosin on Mittle, if an" when he srvives his wife2on Mittle K veste" remain"er in fee simple sb0ect to e!ectory interestT K still has present possessory interest *enforceable commitment, hol"ing money sb0ect to someone else&s interest

*not a ftre interest hel" by grantor, fee simple sb0ect to e!ectory interest *b3c yo&re hol"ing something forsomeone else its springing to grantor

Trust : fle!ible form of ppt&y mgmt'

-rstee: legal ownership of personal ppt&y, with legal fee simple in lan"' yet with beneficiaries *1e4itable owners2 of the same ppt&y at the same time' sb0 to or"ers of an e4ity cort, which enforces the trstee&s "ties to the beneficiaries' a"minister trstsolely in interest of beneficiaries

!anson . !anson, S%t of Georgia, >, p. EXX'/ennie&s Swanson&s remain"er interest veste" before his "eath an" con"itions sbse4ent containe" in trst provisions "i" not occr before the life beneficiary of the trsts "ie", /ennie&s veste" remain"er was not "efease" an" instea" passe" accor"ing to the terms ofhis will.if veste" remain"er is not "iveste", then it is inherite".ambigos if meant, chil" being alive when George "ie" or when Gertr"e "ie"./ennie&s veste" remain"er can only be "efeasible if / "ies before Gertr"e an" he has chil"ren. *no con"itions for "efeasance

Ct : Strong preference to look at con"itions of sbse4ent, so look at 1srviving2 as con"ition prece"ent.

EBec%tory interest* if person asi"e from grantor has ftre interest, se" in BS *b3c atomatically reverting, "ivesting a veste"interest. Taking away something that&s alrea"y given to someone.

Life estates have ftre interest in either *> grantor *reversion, or *E remain"er *E classes

EBa'le: 1to . for life t!en to .s c!ildren2 ;ee"e" info: if 9 has any chil"ren *b3c then sht off rles apply "ifferently%an&t assme anything *like yong so will probably have chil"ren.9 K life estate9&s chil"ren K contingent remain"er for BS9C K reversion if life estate en"s before contingent is resolve".

Mogically easier if %R en"s when life estates en"s, yet not goo" for %R

%R remains an" C has reversion in fee simple sb0ect to e!ectory limitations *gives back to 9&s heirs if con"itionmet 6 9 has chil"ren9&s chil"ren *when life estate en"s before 9&s life K e!ectory interest in fee simple absolte *in relation to C&s reversion

Kcontingent remain"er to 9&s life estate. 9 life estate can en" before the life of 9octrine of "estrctibility of contingent remain"er: prev, %R wol" en" if not met by en" of life estate, bt now it&s a"ifferent policy. ;ow C has reversion ntil contingent remain"er con"itions met.9&s chil"ren K when becomes veste", gets lan",

se )ested sb,ect to open when talking abot ftre interest an"se )ested sb,ect to partial di)estment when "ilting3losing property interest.

Note: If / *9&s chil" sells property interest to byer, then byer is sb0ect to "iltion as well b3c byer only bys /&s ppt&yinterest, no more.

EF



EBa'le: 1to . for life and t!en to .s c!ild B .29 K life estate/ K absoltely veste" remain"er in BS9.If want 9&s other chil"ren to share, can spplement conveyance w3 contract with /

EBa'le: 1to . for life and t!en to .s c!ild B bt if B doesnt !a)e c!ildren t!en to D*K

9 K life estate/ K veste" remain"er in BS9 sb0ect to e!ectory interest sb0ect to "efeasance K contingent remain"er in BSS$I in BS9 *e!ectory interest b3c "ivests veste" interestCnce / gets chil"ren K veste" remain"er in BS9 *can no longer be taken away from /.

Then has no interest."oesn&t mattere if chil" srvives as long as / ha" a chil".;ee" srvival langage to make it clear or else assme, 1ha" chil"ren2

EBa'le: 1to . for life t!en to .s c!ild B bt if E* t!en to D*K

Rles in ftre possession:*> $!ectory interest: follow veste" interests*E %ontingent remain"er: will follow contingent remain"er * @este" remain"er: follow e!ectory interest *"ivest

EBa'le: 1to . for life t!en if B doesnt !a)e c!ildren t!en to D*K/ A K both have contingent remain"er.

+roblem p. E* %ol" /ennie have a"opt +eggy *his wife as his chil"? *If it was re4ire" that he have chil"ren to get his share of the trst?+robably not b3c: *> Grantor&s intent' *E Intent of statte *)"ges slap on con"itions with a"lt a"option

*J In trst, 1 for my son . for life t!en to .s c!ildren M !eirs.2 9t time of T&s "eath, 9 has one chil" */, then % is born to 9. / "iesan" leaves hsban" H chil" $, all /&s ppt&y to , then 9 "ies, srvive" by %, , $. Who owns the trst ppt&y?

9 K life estate9&s chil"ren K *conveyance at "eath, / K veste" remain"er sb0ect to open, then when % is born *veste" remain"er sb0ect toopen as well.% K veste" remain"er sb0ect to open */&s hsban" K gets /&s interest b3c it&s a veste" remain"er.

gets over $ b3c:

*> heirs K i"entifies who takes, instea" of what estate it is means its BS9'*E once % gets a veste" remain"er, then only "iltion can effect it *sb0 to open bt veste" remain"er isn&t "iveste" byanything. Therefore, she can chose where her veste" remain"er interest goes to

$ */&s chil" K gets nothing

Doctrine of destr%cti"ility:

Contingent remainder "estroye" if not veste" by en" of life estate *which en" either artificially or natrally. 2xecutory interest may be applicable n"er R9+ as well./etter for C so that C "oesn&t have to hol" BSS$I for someone else.

T!o ste rocess to aoid r%le of eret%ities**> -ove towar"s transferability of possibility of reverter, right of entry *b3c they aren&t sb0ect to rles of perpetities, yet e!ectoryinterest is.

$!ample: Set p for My"ia with possibility of reverter an" then later, in En"

transaction, My"ia conveys possibility of reverterto someone else in or"er to get aron" rles that apply to e!ectory interest. *moving away from that i"ea, so we can avoi"rle of perpetities.$!ception: With charitable "onations, another charitable organi=ation can assess whether one organi=ation is keepingcon"itions. When present possessory an" ftre interest hol"er are charities, then rles of perpetities "oesn&t apply.$!ample: J-o Gmi #ife$ for life and t!en to if learns to spea& 'apanese by t!e age of 26 if not t!en to t!e Bdd!ist

.ssociation of <.*K(ar" if give lan" away "ring life, yet sometimes better to incentive. *(sban" gave inter vivos.

#mi K life estateL *age >E K contingent remain"er base" on learning )ap before EQ in BS9 at en" of #mi&s life estate*if life estate en"s an" veste" remain"er, then it spee"s p into veste" remain"er, rather than being reverte"/""hist Temple K contingent remain"er in BS9

E>



C K reversion sb0ect to e!ectory interest<If L is contingent remain"er an" life estate en"s before L is EQ: *w3o "octrine of "estrctibility

C K reversion in C wol" be reversion sb0ect to e!ectory interest.L A /""hist Tempe K both hol"ing e!ectory interest/""hist 9ssociation of M9 K contingent remain"er if L is contingent remain"er.

K nothing if L is veste" remain"er.<If L learns enogh )apanese at age EF to 4alify.

#mi K life estateL K veste" remain"er in BS9/""hist 9ssociation of M9 K has nothing b3c con"ition met

#mi "ies when L is > an" he "oesn&t know enogh )apanese. *w3 "octrine of "estrctibility#mi K life estate en"s.L K nothing if "octrine of "estrctibility

octrine of estrctibility: Grantor&s intent to have L learn )apanese by EQ yo, yet historically, ha" "octrine of "estrctible,where if #mi&s life estate en"s before L has veste" remain"er, then BS9 wol" revert back to C.

+roblems p. EP*> 1to . for life t!en in fee simple to Bs c!ildren !o sr)i)e BK #it! doctrine of destrctibility$

*a / "ies "ring 9&s lifetime, leaving chil"ren' then 9 "ies.9 K life estate/&s chil"ren K BS9 after 9&s life estate en"s

*b 9 "ies "ring /&s lifetime' / has chil"ren at 9&s "eath.C K BS9 *b3c con"ition not met by en" of 9&s life estate 6 / has to "ie before 9 to have con"ition met

*c 9 "ies "ring /&s lifetime' / has no chil"ren at 9&s "eath.C K BS9

*" While 9 an" / are alive, 9 conveys life estate to /./ K life estate base" on 9&s life *per atra vie/&s chil"ren K contingent remain"er in BS9C K reversion in BS9 *in "octrine of "estrctibility

C K bon" if %R isn&t veste" 6 so might have to hol" ftre interest for long perio" of time with no incentive

+"olition of Destr%cti"ility Doctrine

*> people se" e!ectory interest instea" of contingent remain"ers*E ftre interest create" in trsts

* tren": to"ay ftre interests are more e4itable rather than legal

+roblems p. EX 'risdiction !ic! destrctibility rle !as been abolis!ed by statte*C conveys /lackacre Jto . for life t!en to sc! of .s c!ildren as attain t!e age of 23*K *a 9 "ies w3 E chil"ren: % *age X an" *age J. ;ow that life estate is gone, what is state of title?

C K fee simple sb0ect to e!ectory interest.% H K e!ectory interest *no e!ectory interest sb0ect to interestWhen % reaches E> will he take any interest in /lackacre?% K gets fee simple sb0ect to "iltion *b3c might come in

*b "ring 9&s life, chil" % reaches E>, then "ies. Then 9 "ies, srvive" by chil" , age >V. State of title?9ny con"ition that&s "ivesting: sch as % being alive?% K veste" remain"er sb0ect to open before 9 "ie"C K reversion in BSS$ICnce 9 "ies, % K fee simple sb0ect to "iltion. *BSS$I' C is ot of pictre. K given chance to reach E>. K e!ectory interest

@este": locke" in legal interest, even if not in possession.

R%le against Peret%ities 9o 0future interest is good unless it must vest if at all not later than !1 years after some life in being at the creation of the

interest&

Cnly ftre interests vests.+revents contingent interests that might vest too remotely

EE



-st prove that %R is certain to vest or terminate no later than E> yrs after the "eath of some person alive at the creation ofthe interest, if not, then it&s voi" at otset@ali"ating3measring life: person who will enable yo to prove that %R will vest or fail w3in the life of, or at "eath of, person or w3in E> yrs after "eath of person'

mst be alive at time of conveyance'mst be persons affecting vesting of the interest bt "on&t have to be mentione" in instrment.might not be the same for each ftre interestlook for some life not stiplate" in "ocment that affects vesting... relevant to conveyance.some life in being K it&s when conveyance occrs *sally "eath of person some life that was being at creation ofeach of ftre interests.

9pplies to: *> e!ectory interest, *E "oesn&t apply to veste" remain"er nless they are sb0ect to open, * contingentremain"er' not 1right of entry2 an" 1possibility of reverter2 b3c it was from grantor if not vali", then striken *of ftre interest from conveyance *rea" it w3o the phrase in it'apply the con"ition in se4ence

Reasons for R%le +gainst Peret%itity

*> prevent interests from hanging over too long*E veste" 6 relation to contingent remain"er

n"er rle of perpetities *vests w3in allowable timee!ectory interest *vests legally as in possession

* remain"er: ascertaine" people, con"ition prece"entWe have to know that ftre interest will be veste" w3in certain perio" of time at the time the will is create".

+lication of r%le*> Mook at ftre interest*E Go back within ftre interest bracket to see if there is a life that yo can se to vali"ate it or not to. 7legal "efinition8* @este": ascertaine" person *affect vesting an" no con"ition prece"ent of taken.*J ;o con"ition that has to be met before veste" person gets possession.

@esting in possession is something "ifferentlywill prevent ftre interest to contine forever contingent remain"er.

*Q Think of scenarios for R9+ anticipate certain illogical scenarios

+roblems p. FJ*> 1to . for life t!en to B if B attains t!e age of =0*K / is E yo now.

/ K vali"ating life b3c when / "ies, know whether he&ll be F w3in E> yrs of his "eath.

*E Jto . for life t!en to .s c!ildren for t!eir li)es t!en to B if B is t!en ali)e and if B is not t!en ali)e to Bs !eirs*K9 K life estate *life in being9&s chil"ren K 9 is vali"ating life b3c know by 9&s life if 9 has chil"ren

K ftre interest in life estate *we "on&t know if 9 has chil"ren$ither contingent remain"er in M$ *if no chil"ren or veste" remain"er sb0 to open in M$

/ K *when / is then alive is then alive& refers to conveyance. %on"ition met at en" of prece"ing life estate, 1will

we know E> years after the "eath of the life of the vali"ating interest2 (9S TC /$ %RCSS$ CBBwill there be ascertaine" people in being? We&ll know E> years after 9&s chil"ren&s lives bt right now, 9&schil"ren are no ascertaine" right now b3c class is still open.In or"er to vali"ating life, have to be alive at creation of interest, so 9&s chil"ren can&t be vali"ating interest, so can&tse 9&s chil"ren as a vali"ating class b3c contaminate" by 1afterborns2 *maybe live past overborn chil"ren1afterborn2 6 born after creation of interest, conveyance can&t be vali"ating life, even if they srvive the most

so we can&t stay in clase

have to ascertain who taker is, so go back to 9 if we&ll know E> yrs after 9&s "eath, thatit&s 9&s chil"ren.

Jt!en to Bs !eirs !o are t!en li)ing*K

/&s heirs K / is vali"ating life. In or"er to be heirs, "on&t yo have to be living?

$!ample: J-o . for life t!en to Bs c!ildren for life*K@ali"ating life *effects vesting: /

E con"itions that lea" s to veste"ness:> 9scertaine" takersE ;o con"ition prece"ent to taking, e!cept someone&s "eath in life estate

E



Rles to look at R9+:> stay within clase of ftre interest to see if yo can fin" ascertaine" person an" con"ition "etermine" w3in that person&s life.E (ave to know for sre that con"ition will be met w3in E> yrs of "eath in being. on&t have to know for sre that the

con"ition will happen, 0st that we&ll know E> yrs after vali"ing life if it has happene". %an have finite niverse of people *eg. Jt!ose !o got license before 'anary 200=K to be ascertaine" takers *even if we

"on&t have name on themJ Mook for invali"ating life as oppose to vali"ating life to see if something is okay n"er R9+. *look for "isaster

$!ample: chil" that is born after the fact.$!ample: 1 for . for life t!en to .s first c!ild to reac! 26*2 9 has chil" who is E yo when she "ies or at en" of 9&s life estate#ncertain that E> yrs after her "eath whether chil" will reach EQ yo.

$!ample: 1to B if B gradates from college2/ K ascertaine" an" con"ition "etermine" w3in /&s life

$!ample: 1to my son en,i if !e learns !o to spea& 'apanese before 262L K will know if con"ition met E> yrs after L&s "eath

$!ample: 1to <oise to rebild restarant if ?-C is rebilt 2 ;ee" vali"ating life to see if ascertaine" taker an" con"ition is met.If it&s to Moise H heirs, then can hang over forever, so have to look for vali"ating life *can look otsi"e clase, eg. city boar"member 6 have to fin" someone who effects vesting.

+roblem p. FJ* 1 a teac!er declares trst O3000 Jfor all members of my present property class !o are admitted to t!e bar*K

9ll st"ents in property class are their own vali"ating life *for their interest in the trst. Takers are ascertaine".

1 For t!e first c!ild of . !o is admitted to t!e bar*KC K BS9 *b3c conveyance is voi" b3c of rles of perpetities.#ncertain if 9&s chil" will be a"mitte" to the bar w3in E> yrs of 9&s "eath b3c might take a long time an" 9&s chil" may be anafterborn chil" after the conveyance occrre". It&s invali" b3c it&s too remote.

$!ample: Jto t!e Sc!ool Board so long as sed for a sc!ool t!en to . and !er !eirs*K

cross ot 1then to 9 an" her heirs2, so that C has a possibility of reverter an" 9&s e!ectory interest is remove"

$!ample: Jto t!e Sc!ool Board bt if it ceases to se Blac&acre for sc!ool prposes to . and !er !eirsK

strike ot all 9&s e!ectory interest an" leave BS9 to School /oar"' b3c con"ition is incl"e"

/iggest #nfairness in R9+:stepping otsi"e normal e!pectations an" normal e!pectations not taken into accont nless yo e!plicitly state it. *eg. VF yo legally

having chil"applies to personal ppt&y an" lan" ppt&y

Ways to get aron" it:> 1 possibility of re)erter 2 an" 1rig!t of entry2 are e!empt from R9+ *in BS or BSS%SE Two step process, with BS3BSS%S an" then 1e!ectory interest2 to r" party %ontract with stiplations to give BS9, yet if shit happens, can&t get ppt&y back bt only D "amages%ommon law rle: right of entry an" possibility of reverter, previosly col"n&t be transferre" to r" party, yet now some 0ris"ictions

allow it *make sre 0ris"iction is okay.

ee . +%dley, %ort of %hancery, >VXV, p. FP'Jto -s ife for life ; remainder Jnto my niece +ary Hall M t!e isse of !er body E and in defalt of sc! isse to t!e dag!ters

t!en li)ing of 'M 'ee*KT&s wife K life estate-ary (all K BSS$I *?aghters of )H$ )ee K afterborn "aghter might invali"ate clase' voi"e" ot b3c R9+

9fterborn "aghter might invali" clase:nee" to clarify with, 1 Dag!ters li)ing at time of ill and t!en li)ing at time of ill 2can&t se "aghters as vali"ating lives b3c nclose" classIsse of -ary (all&s bo"y:can&t se -ary (all as vali"ating life b3c interest taker is -ary (all H isse.

EJ



%n)alidating sitation: -ary (all can have afterborn an" then col" live mch longer then "eath in being. Then ifyo ha" afterborn "aghter of )H$ )ee that srvives, then this "oesn&t work invali" b3c no vali"ating life is alive "ringtime of conveyance.

Aait7and7see test K waiting to see if con"itions aren&t met, as oppose to the R9+ where they knock interests right when yowrite will *so yo know what yo have alrea"y' weakness of Waitan"see test is strength of R9+'R9+ K no intereste" in grantor&s intent *eg. )esse Mi"e case wol" be easy to interpret%onstrction test K %an change wor"s in will to protect3in accor"ance of testator&s intent to avoi" R9+&s knocking ot of parts of will

Note: if whole class "oesn&t close then e!isting members of class are close" ot

+roblems p. >E>>. Jto . for life t!en to .s c!ildren !o reac! 26*K 9 has a chil", /, age EP, living at the time of the conveyance. Is the remain"er

vali"?9 K life estate/ K veste" remain"er9ns* The entire remain"er is voi" b3c the class has to be close" by E> yrs after someone&s "eath, even if there are veste"remain"ers sb0ect to open or "iltion.

Note: if whole class "oesn&t close then e!isting members of class are close" ot

$!ample: Jto . for life t!en to .s first c!ildren !o reac! 26.2 9 has a chil", /, age EP, living at the time of the conveyance.9ns: Then it wol" be okay, b3c / alrea"y veste".

$!ample: Jto . for life t!en to .s c!ildren !o reac! 23*K 9 has a chil", /, age EP, living at the time of the conveyance. Is theremain"er vali"?9ns: @ali" b3c then all chil"ren will be known to be E>, E> yrs after 9&s "eath.

E. Jto . for lifeQ t!en .s ido if any for lifeQ t!en to .s isse t!en li)ing*QK Is the gift to 9&s isse vali"?9 K life estate9&s wi"ow K will be known when 9&s life en"s' contingent remain"er' 9 K vali"ating life in this case, *b3c nascertaine" person

b3c yo "on&t know if 9&s crrent wife is his wi"ow9&s isse then living K ncertain if 1then living2 so voi", b3c 9&s wi"ow is nascertaine".

Note: wol" have worke" if 9&s wi"ow was name", so can se her as vali"ating life.

. T "evises property Jto . for life and on .s deat! to .s c!ildren for t!eir li)es and pon t!e deat! of . and .s c!ildren to t!e

person inserted in t!e brac&etsQ*9 K life estate9&s chil"ren K life estate7 8 K BS9

9 an" / both srvive T. *%an have chil"ren b3c they are alive

5a) G if + dies c$ildlessH

vali"' 9 K vali"ating life*b G if + $as no grandc$ildren t$en liingH

voi"' goes to con"ition prece"ing' 9&s chil"ren aren&t vali"ating lives b3c class is open so we wol"n&t know if 9 has anygran"chil"ren. 9""itionally, we "on&t know if they are living at the time b3c we haven&t i"entifie" that person.

5c) G4s c$ildrenH

/ K vali"ating life if / is alive then. Ckay b3c we can close ot class of /&s chil"ren when / "ies.*" G4s c$ildren t$en liingH

/ K vali"ating life bt voi" since we "on&t know who will be living. We won&t know w3in E> yrs of /&s "eath if /&s chil"ren willsrvive 9&s chil"ren.

*e G+4s grandc$ildrenH

invali"' goes to ascertaine" life' we "on&t know who 9&s chil"ren are yet *b3c it&s an open class afterborn *f 7T4s grandc$ildrenH

Cnly vali" if we know T&s chil"ren an" it&s a close" class.

$!ample: -o my grandc!ildren !o reac! t!e age of 23* *in will@ali" b3c se close" class of chil"ren, so then w3in E> yrs of "eath of chil"ren, we will know which gran"chil"ren will havereache" age of E>. ascertainment K C&s gran"chil"ren.

EQ



$!ample: -o my grandc!ildren !en t!ey reac! t!e age of 23* *inter vivosInvali" b3c it "oesn&t chil"ren isn&t close" class so no vali"ating life. Soltion: name chil"ren in whose gran"chil"ren areapplicable.

EP



,$ater <* ,o7o!ners$i and arital Interests

%oowners: concrrent owners of present or ftre possession' st"y rltship btw coowners *H cre"itors, gov&t, A neighbors

(or's of ,o7o!ners$i *Cr"er of most constrictive form least constrictive form

>. Tenancy by $ntiretyE. %ommnity +roperty *"on&t really "iscss. %oparity *"on&t "iscssJ. )oint Tenancy

Q. Tenancy in %ommon

Pro"le's "t! co7o!ners:> 8o! easily can 'y co7o!ner get o%t of dealK *for sitability of marketabilityE Relationship of or co7o!ner to creditors *bankrptcy, 0"gment from e4ity of property, se ppty& as collateral to secre

loan I'roe'ent *"ecisions, payments mgmt responsibilityJ Rent *coowner wants to rent to someone yo "on&t likeQ ,irc%'stances *nwante" gests, changes locks *"oesn&t allow yo to go into hose will person be able to 9+ if yo

"on&t "o anything?P ,o7o!ner dies *what happens thenV Oor own interest at yor "eath *in$eritanceX What if yo get lan" with %ne&%al a'ts of 'oney *a"verse if ne4al shares? *shol" yo "ivi"e e4ally or by amt yo

pt into lan"?

Reasons for co7o!ners$i

/i)e greater access to oners!ip to people from or property

> 9merican "ream when people 0ointly own property,E reenforces or vales, an" willing to pay price.

Note: pll towar"s sole ownership

$nglish common law: "islike "ivi"ing lan" into smaller parcels so favor )T over T in %.#S common law: favor T in % instea" of )T, )T has to be e!plicitly state".

,o7o!ners$i Iss%es to t$in? a"o%t*

1 -hat constitutes an action sufficient to lose a right of survivorship 0of joint tenancy. :severance;! -hether bank accounts held the same way 0rules<personal property side<real property side as joint tenants&

= Counting on continued participating in co>ownership 0partition ending partnership.

>pretty easy?absolute right at court 0burden of other side wanting to keep joint tenancy co>tenancy to prove that restraints on

partition is better@ -hen can tenants get rent from one another 0ouster 0right to get rent maintenance.

#ame partition rent management issues

B *ent+ one possibility+ absent of ouster can%t get rent 0next question+ what do you have to do to prove ouster. -hat is proving

ouster. -hat is your standard for keeping your property 0ouster<AP.>low standard of ouster 0probably entitled to rent

>if standard of ouster high probably not entitled to rent

>or pay rent to out>of>possession tenant

(or's of ,o7o!ners$i

Tenancy "y Entirety %ommnity+roperty

)oint Tenancy Tenancy in %ommon

Characteristics

Cnly "eath or "ivorcegets yo ot of it *intotenancy in commonmost restrictiveJ nities of 0ointtenancy H nity ofmarriagecan&t "efeat this by

Restricts property right of srvivorship0oint tenants seen assingle owner *each haswhole sharewhen one 0oint tenant"ies, passes nothing toother 0t b3c alrea"y haveall

separate bt n"ivi"e"interest"escen"ible interests *noright of srvivorshipeach tenant ownsn"ivi"e" share of whole*nity of possession 6only nity that T% has

EV



conveying to someoneelse *can only conveysomething together

ha" to be seise" togetheras one owner at same timean" keep J nities. *time,title, interest, possession

ability to hol" ne4alshares

$imitations Cnly for marrie" people *e!cept in(awaiiin less than half thestates

Cnly for marrie" people *Span law:vale" maritalrltship so protecte"them, Women previosly notallowe" to have power of commn ppt&y, only sinceVQ

0oint tenancy can break 0t by "estroying nity

7enefits navailable forcre"itors

Ta! benefits Right of srvivorship 9bility to hol" ne4alshares

For Gnities: *essential to 0oint tenancy*> time *interests mst be ac4ire" or veste" at same time*E mst ac4ire title by same instrment or by 0oint 9+ *never can arise by intestate sccession or other act of law* al mst have e4al n"ivi"e" shares an" i"entical interests measre" by "ration.*J $ach mmst has right to possession of whole *after )T is create", however, > )T can volntarily give e!clsive possession to

other )TCommon la: if J nities aren&t met, then )T is actally Tenancy in %ommon. *either at conveyance or later on

?ays of doing t!is: mtal agreement "estroying one nity, >)T by conveying interest to r" party

'dicial partition: cts can either physically partition tract into separately owne" parts or or"er lan" sol" an" procee"s "ivi"e".*available for both )T an" T in %

Different "et!een =oint tenancy and tenancy in co''on :>. right of srvivorshipE. ability to hol" in ne4al shares. creation of interest *)T mst be "one at same timeJ. severance *?

Note: no "iff in possessory interests for )T or T in %

Ct Re(irements for creating certain &ind of concrrent interest :> Some 0ris" re4ire e!plicitly 10oint tenancy2 as oppose to 10oint2 b3c it&s collo4ial term an" want to make sre that it&s

knowing participation. efalt K T in %.9cceptable: 1To 9 H / as 0oint tenants an" not as tenants in common25estionable: to 9 H / 0ointly2

E Some 0ris" re4ire e!press provision for srvivorship to create )T9cceptable: 1To 9 H / as 0oint tenants with the right of srvivorship.2

Some states "one away from )TsJ %ommon law presmption: hsban" H wife want to create tenancy by entirety, absent some clear in"ication to the contrary.

+roblems, p. JE>* 1 con)eys Blac&acre to . B and C as ,oint tenants* Sbse(ently . con)eys !is interest to D*

.ns M !ypos:> has a T in % with */ H % who still have )T. / H % still immne to cre"itors an" right of srvivorship *b3c 9 acte"

nilaterally, so why shol" / H % sfferE )stification that / H % still have )T as oppose to T in %:

fewer tenants in longrn"i"n&t "o act yorself so why shol" interest be taken from yo *9 acte" nilaterally

9rg for notice *that yo can&t severe w3o notice:a -enancy of entirety: can&t severe nilaterally b -enancy in common: can have ne4al shares an" cross wills to have portion to go to srvivor *yet no certainty that it&ll

always be this wayc 'oint tenancy: nee" e4al shares *presmption of e4al shares nless prove" otherwise

EX



%9 H other states K if can prove how mch yo pt in *D *yor br"en to prove, then can proportion property whenyo sell it *presmption of shares

-!en B dies intestate lea)ing H as !is !eir*

.ns* M !ypos:9ns. % H then become T in %.9""itional info: if % H want to be )T, have to se straw person, U. % H both convey to U, who then conveys to % H withall J nities intacte" *so get right of srvivorship

Difficlties: *> creates vlnerability an" *E costly transaction

Probate: )T poplar b3c similar to will *with right of srvivorship. )T avoi"s Probate: 0"icial spervision of a"ministration of"ece"ent&s property that passes to others at "ece"ent&s "eath costly with a"ministrators, lawyer, an" cort costs *b3c no interest passes at "eath of 0oint tenant)T can&t pass interest in will b3c )T&s interest ceases at "eath *important conse4ence to cre"itorsCreditors: mst act w3in )T&s life to get )T&s interest in ppt&y or else it&s gone at )T&s "eath-a"ation: even thogh nothing passes, still get fe"eral estate ta!ation.Gne(al s!ares: )T: have to have e4al shares, 0stifie" by historical gron"s an" makes no sense to"ay. Increasingly ignore" incts.

1ptions: *> if )Ts yet 9 pays >3 an" / pays E3, then when selling it, "ivi"e it >3 an" E3. *cts "ivi"e procee"s accor"ingto their intent, yet also look at close rltship of )Ts to see what intent might have been' *E "on&t pay attention tore4irements of nity *eg. 0oint an" srvivor bank accts owne" by parties "ring life in proportion to the net contribtions byeach.presmption of e4al shares rebttable by evi"ence of contrary intent

2. eerance of oint TenanciesReiss v. Reiss, %9 %t9pp, p. JX'%reative metho" of terminating )T w3o strawman:#3$ -o destroy incident of sr)i)ors!ip transfer legal title to son as trstee of trst for !er se and benefit son promises to recon)ey

t!e ppty to !is mot!er

Ct : phel" b3c "esire of W to terminate )T' little vale of cmbersome fe"al law re4irementsCommon sense and legal efficiency: )T shol" be able to accomplish "irectly what she col" otherwise achieve in"irectly by seof elaborate legal fictions

#2$ 1ne '-s e"ection of a JDeclaration of lection to Se)er Sr)i)ors!ip of 'oint -enancy Note: "o yo have to give notice to the other 0oint tenant?

Note: (ow mch "o yo have to pay lawyers to be strawmen for yo in conveyance?

Isses for )oint Tenancy H Tenancy in %ommon:1) Rig$t of s%riors$i

%f . B C !a)e '- and . con)eys to D ;o telling B M C t!en D ill !a)e - in C it! #B M C !o still !a)e '-$right of srvivorship more easily retaine" an" want to make it har"er to lose right of srvivorship.

*eg. can&t convey 9 9, mst have straw *e!pensive with lawyer straw or trstee *yet risky b3c they only have

fi"ciary "ties to convey back to yobenefit of )T with right of srvivorship instea" of T in % with cross wills: avoi" probate *costly

2) Une&%al s$ares

. M B in!erit ppty as - in C* %f . M B ant to be ,oint tenants can !a)e B con)ey all interest to . and t!en . con)eyedto bot! . M B as '- or ,st as B as !er '- #alloed nder C. la: mo)ed aay from common la rle t!at yo need

stra$*

%sse: can yo have both )T an" T in % for same ppt&y?Cts ans: Ckay, b3c cts want to keep lan" together, yet conceptally, it&s a psh not to have to the "ivi"e lan".

Bor all coownership: everyone has fll access to lan" yet can have "ifferent shares *ne4al shares of lan"' '- : allowe" torebt e4al shares *which is presmption' - in C: "on&t have that presmption of e4al shares

3) ,reationFseerance

eerance of T:*> "ifficlty, *E have to be with r" party, * secrecyCommon la for secrecy: acceptable to sever to r" party w3o notice 6 can se straw1t!er la: some 0ris" has convey to yorself H notice to other )T *%9: re4&" recor"ation 6 constrctive notice b3c thenirrevocable recor"ing

E



Different options:*> no notice *common law*E constrctive notice *%9* actal notice: for nonisses

%sses to t!in& abot : fairness *if secrecy w3o notice, then if other )T "ies first, get entire ppt&y yet if yo "ie first, then it has become Tin%.

'- : both veste" in all lan",-inC : e4al share possessory interest in whole ppt&y *every piece of lan" is owne" in proportionate to contribtion-enancy in ntirety: marrie" cople

Reasons for #T*A-3Reasons against #2$5>C,92DA9C2+> create notice *evi"ence of previos intent, as oppose to srreptitiosly having severanceE ngainly to han" yorself a clo" of "irt *fe"al heritage reliance interest : people wol" have ha" to se the strawJ +rotect other )TQ Recor"

Reasons against #T*A-3Reasons for #2$5>C,92DA9C2+

> remove malpractice trapsE no high costs with se of elaborate legal fictions no reason to contine something that was set in place at time of (enry [email protected] %reates no new power in )T

Q Intent is the same an" we care mostly abot intent, not how they are "oing it

Severance of 0oint tenancy %sse: ;otice, nilaterally severance, irrevocability> *@olntary conveyance to r" party w3o notice *singlarly 6 common lawE Straw 6 convey to r" party an" then have it conveye" back to yo *costly, risky %re"itor&s reach 6 cre"itors nable to get if yo "ie b3c then the other )T has it.

a foreclosre 6 pt lien on property an" then go thr procee"ingsJ +artition action 6 by cort *straw K cortQ %onveyance to self *not common law, *a""e" in %9 law' some 0ris re4ire that if yo convey to yorself, yo give notice to

other )T *recor" 6 constrctive notice to make it irrevocable for yorself a no notice 6 no recor"ing or anything b constrctive notice 6 recor" it so they can fin" ot if they want to

c actal notice 6 tell themsome 0ris re4ire notice *sally legis a""s this re4irement for selfconveyance, re4ires notice with embe""e" penalties*recor" before "eath, notari=e "ays before "eath

P ie before other )TV Involntary/eneral Rle: nilateral severance okay *w3o interme"iary "evice' sometimes re4ire recor"ation' yet common law "oesn&t allow for

it.

-echanism of severance:/rke v. Stevens, p. JX' sed attorney as stra to se)er '- #net!ical yet legally permissible$

Reasons for notice: )T has right to know to prepare Reasons for no notice: *> "esire things to go towar"s Tin%' *E more litigation' * "omestic abse *feminists argeC. la: re4&s recor"ation b3c so can&t wait to see what happens *if )T "ies before yo 6 irrevocabilityReiss v. Reiss, p. JX' son as trstee of trst for her se *ct phel"

Riddle case0 p. JQ' .ttorney made legal doc !ere Riddle con)eyed to !er '- interest to !erself in a -inC and t!en disposed of !er interest in a ill after

s!e died* Ct alloed*

%sse: conveyance to oneself might cont as severance of nity principle "epen"ing on 0ris" *might keep common law rle 6 noseverance, re4& straw, intention <

<ease:Common la: break in nity in common law' yet intention might "iffer *can go in either "irection

OINT TEN+N,Y:

F



+ain concern: harmony of all rights together 1pposing -rend : easier to sever 0oint tenancySimlaneos deat!s of '-s: "ivi"e property e4ally as if both ha" been the srvivors.

if any signs that 9 or / are alive, then that person *9 or / gets right of srvivorship.*eg. if /&s leg ncrosse" "ring "eath, /&s hea" sprting bloo" from "ecapitation

+rder by one '- of anot!er '- : severs )T an" trns it into Tin%

Cptions for right of absolte right of srvivorship #as oppose to '- !ere it mig!t be se)ered$ p* =82:> )oint M$ with contingent remain"er in BS to srvivor E Tin% in fee simple with e!ectory interest in srvivor

1to A and 7 until one dies2 *then all property to srvivor Bee simple with $I of 9 an" / *present possessory interest "oesn&t have to be 9 or /

Jto A if A outlives 7 to 7 if 7 outlives A

See if ftre interest gi)es yo somet!ing t!at '- doesnt gi)e yo

T$;9;%O /O $;TIR$TO:not allowe" in all 0ris"

(9R-S v. S+R9G#$, p. QF' '-3 signs loan it! lien on !is '- interest in ppty yet before mortage is paid and lien is still on '-3 dies* Creditor see&s to get money

from Blac&acre itself*> Title theory state *minority: If get mortgage by )T of his interest in ppt&y, then trn )T into Tin% "epen"ing:

Two conse4ences "epen"ing on 0ris":

a Jall is lost T: severe" when yo pt p yor ppt&y for mortgage b te'orary: when "ebt pai" then still have 0oint tenancy *clean p metho"

E Mien theory *ma0ority: cre"itors only have claim to )T&s interest if "efalt "ring his life time *this is when lan" is reachable*risk for cre"itors

Megislatre: want srviving )T to have entire ppt&y w3 encmberance *nity b3c want to protect cre"itor H keep right ofsrvivorship' 4estion abot cre"itors H risk

%sses: conse4ences3intention of parties> Shol" len"er bearing risk *of possibility that )T "ie before mortgage pai"?

nfair for len"ers to take risk b3c "on&t know abot )T *"oesn&t protect small cre"itors, encorages large cre"itorswho wol" know abot this sitation' %ts want to encorage small len"ers, yet big len"ers also psh to havesrviving )Ts have right of srvivorship w3 encmberance

E )oint tenants:Shol" 0oint tenant take on encmbrances if "on&t know abot loan encmbrance? *sally 0oint tenants are btw

sposes, an" only ma0or assets they have, then sposes are hrt by this Who will get hrt: )Ts or cre"itors?

Hypo: If )T with mortgage gets entire ppt&y with right of srvivorship, can cre"itor go for entire lan"?Men"ers prob go for what loan is worth. Go for beyon" QF if falling lan" vales *n"ersecre"' most 0ri" allow >FFsecring *cre"itors can reach all ppt&y

-o possible se)ering e)ents:

%onvey to yorself *becomes Tin% allowe" in %9 H other 0ris"

-ortgage lien sally "oesn&t reslt in severance

R$;T9M 9GR$$-$;T: p. QP YE: A E 7 own FT A 8 1G>yr lease to C& Then A dies and conveys ppt%y to 6& -hat are 7%s rights.

Common la: lease se)ers. %onveyance of ppt&y "estroys nity of interest b3c )T has only reversion' % gets possessory rights at "iff

time to "iff nity of possession an" time.*similar to title theory of mortgages, yet criticism of nintentional severance +odern )ie 6 lease does not se)er* 5estion of whether srviving )T takes \ sb0 to lease, lease isn&t giving title *0st possessory

rights' )T giving lease prob "oesn&t mean to sever )T w3 lease*similar to if )T takes sb0 to mortgage.*> srviving )T takes sb0 to leasehol"*E srviving )T "oesn&t take sb0 to leasehol"

lessee can protect himself by getting all )Ts to sign lease or have )T sever )T to become Tin% before "eath *not fair to loo&

only at lessee !o didnt get '-s signatre cold also loo& at '- !o !ad t!eir sr)i)ors!ip rig!ts compromised and didnt

sign* .lso lessor didnt intentionally mislead lessee s!old lang of lease !a)e '-s possessory interest #'- it! rig!t of sr)i)ors!ip$>$

RSG<- : 'f FT who created lease dies and lease didn%t have all signatures of FTs then lease expires 0tough luck&

>



#nity mo"el abot rental agreement:> missing one nityE lease isn&t giving title, 0st possessory rights, so still have nities intention: "i" )T inten" to sever right of srvivorship? #nlikely b3c not st" means of severing.-rend : looking more at intention as oppose to nities. ;ow, if nities are "isrpte", look to see if yo inten"e" something else.

p. QP, YE: 'f A E 7 have joint tenancy A E 7 give written agreement giving 7 the rentals from and possession of the land for herlife& 6oes this agreement destroy the unity of possession. 6oes it matter if it%s a =rd party. #hould A have their right of

survivorship removed.

.ns: If se common law rles, then allow )T 9 to give to )T /. (owever, now we can 0st look at intention. Right of srvivorship benefits: no probate.

p. QP, Y: H and - get divorce and signed agreement providing that divide proceeds of 7lackacre& 7efore 7lackacre is sold -

dies& 6oes H have survivorship rights in 7lackacre. 06id this make joint tenancy into tenancy in common.

Gnity rle #common la$: no severance b3c no nity was severe", so ( takes all %ntent model : ( an" W inten"e" to sever nity rle, so severe". *se" to clean things p1t!er possibility: ( or W col" have 0st severe" it alrea"y, or se straw to get it back into tenancy in common so it comes backto yo.

OINT TEN+N,Y +N +,,OUNT

-re ,oint tenancy ban& accont : C inten"s to make a present gift to 9 of \ sm of sm "eposite" in a""ition to srvivorship rights tothe whole sm of "eposit.

Payable4on4deat! accont : C may inten" to give 9 only srvivorship rights, basically 0st a will *9&s name pt on accont solely for prpose of passing ppt&y at "eathsally not permitte" b3c viewe" as testamentary instrment not signe", witnesse" accor"ing to Statte of Wills.if not allowe" in 0ris", people create 0oint tenancy with intention that it be payableon"eath acc&t in "isgise

Con)enience accont : C may inten" that 9 only have power to "raw on the accont to pay C&s bills an" not have srvivorship rights.

'1%N- -N.NC .CC1GN- : allprpose accont, litigation to est tre intention of "epositor' agreement on bank to give to srvivoronly to protect bank yet in reality, this "oesn&t "etermine realities of ownership btw )Ts some ,ris: presme srviving tenant takes nless clear3convincing evi"ence otherwise *br"en of proof on those challengingot!er ,risd : srvivorship rights in )T acc&t is conclsive

Contribtion rle: Rebttal assmption share proportionate to contribtion-racing principle: might be able to trace ot that 9 "oesn&t own less3more than QF

Re(ire e)idence: intent of contribtor (al s!ares rle: *tre )T acc&t, common law rle, assme that )T bank acc&t hol"ers hol" K sharesCon)enience accont : If C an" I pt D into acc&t for 9&s bills, then 9&s cre"itors get something. If 9 only has srvivorship rights,9&s cre"itors can&t get to acc&t.

Isses: cre"itors& reach, hassle to figre ot C, 9 sharesCommon la rle: 0oint tenancy QF in bank accont *with right of srvivorship 6 presmption with common law an" then others

have to prove with "esire convenience accont H contribtion 0oint bank accont Ban&: leave as 0oint tenancy, banks will allow if payable on "eath *"oesn&t pass throgh probate, giving right of srvivorship, not

giving present interest

"ample: H E - and # have open joint savings account and money from H%s salary& H dies and - takes out entire amount&-hat rights do # have.

Common la rle #e(al s!are$: S gets QF *with )T

Con)enience add4on: nee" evi" bt maybe (HW have )T acc&t an" S only convenience *pay bank acc&t, "epen"s on 0ris". Ban&s: lack br"en3hassle.Corts: )Ts "eal with this in ct, banks get waivers signe" *litigation fees 6 bis only for those who can affor" litigation seit, so arg to reglate bank acc&ts bt we aren&t there yet

S9B$ $+CSIT /CU "ample: 'f A E 7 joint tenant for safe deposit box then does A E 7 both have title to items in deeds&

-itled items: ;o, b3c most items in safe "eposit bo! so important that we "on&t allow title of safe "eposit bo! "etermine title to theitems in the safe "eposit bo! *"ee".

title" items aren&t conveye" bt ntitle" items can be taken, yet "on&t note it or yo&ll have to pay gift ta!es on it. *se" forta! evasion for family members

E



p. QX, Y: A E 7 have joint savings account of I@GJ& How much of the account can A%s creditor reach. >crrent possessoryinterest, if 9 sick, then "oesn&t make sense for 9 to have present possessory interest in ppt&y that can reache".hospitals3cre"itors can s4ee=e ot what they think is part of 9&s portion.Concerns: most people hol" as )T in homes *only real assets, yet nonpayment falls on people thr increase" ta!es

Defino . /ealencis, p. QP+RTITION IN +LE:"ivi"e lan" by selling lan" an" "ivi"ing procee"s.

%sse: W an" 9 want to sell ppt&y so they can by it at low price *nfair

P+RTITION IN IND: "ivi"e lan" by proportion. If one lan" is not e4al in vale, have to make cash payment to other tenant*owelty to e4ali=e vale.

Reasons to se:> $!treme resoltion *only for emergenciesE Respect ni4eness lan", therefore, "islo"ging someone is e!treme reme"y, yet real ppt&y "oesn&t hol" same ni4eness as

lan".Reasons to not se:> ;ot practical3infeasible.E +pt&y owners better with partition in sale. Too many people *"ifficlt to split p, lots too small *=oning: only re4ires one person to sell

yet than cotenants won&t own lan" if "ivision by sale.J Man" vale higher with sale. Whole worth more than sm of parts *monetary

Same as life estate H ftre interest [ BS9-rends:

• #s en"s p with sale b3c whole worth more than sm of parts. %ts se interest K econ interest• %ts also look at resi"ential v. commercial ppt&y *(elen consi"er ppt&y her home

• Some 0ris look 0st at lan" *best economically b3c then parties can work it ot amongst themselves *if lan" too

har"3impractical to "vi"e, so hol" ot for large amt of D, yet ct "i"n&t believe that these parties wol" get along.

• %ts se rotating ownership *timeshares with se rights for personal ppt&y bt not for real ppt&y as mch

p. P, YJ: Personal property can be taken away yet real property stays there& Argument over rocking chair 0partition&

1ptions: rotating ownership, potential of hi"ing rocking chair *bt w3 lan", can&t hi"e, sell it, "estrct ppt&y *split in half, giveto one person "epen"ing on: who took care of3pai" bills, not who pet likes best b3c then it&ll be csto"y issePro"le's of agree'ents t$at restrict rig$t to artition 5not to artition %ntil certain ti'e)*

right of alientation, special contract *real ppt&y v. ppt&y isse *ppt&y ni4e, rles of real ppt&y special *means ofwealth: ability to spport yorself H family, might restrict yor ability to srvivemay be invali" if nclear when it&s reasonable to partitionbr"en on person ptting restrain partition w3 contract *have to be nice to each other before partitioning lan"shol" be for legitimate, not spitefl partition.

,o7tenants resonsi"ilities to eac$ ot$er*

• Shol" inpossession cotenant pay rent to otofpossession cotenant:

• Oes: nfair b3c lost rent opportnity costs

• Some cts say allowe" an" no rent is re4ire". Ctofpossession cotenant might se their share *all have >FF

ownership an" try to ost ot *when someone blocks other cotenant&s se of lan", cts might even partition if pisse".

• Differences: inherite" v. boght ppt&y, comm. v resi", inpossession cotenant might pay the carryingcosts.

iller . ac?eret$, p. P'

1t4of4possession oner wrote a letter "eman"ing rent to inpossession owner b3c getting no rentOet not enogh for oster *b3c "i"n&t "eman" e4al se of property%ts: nee" more than right for rent *not in this 0ris". Re4ire evi"ence.

Cther 0ris": *> whatever represents oster *evi", *E re4 hostile behavior Cster <: assme t!res!old of oster pretty !ig! getting rent more difficlt starts So< for .P so !ig! std

> Csting also starts SoM for 9+: so shol" be harsh *high st", yet same time, oster for rental payment "iff, encoragesole ownership *cts also look at family v. commercial "evelopment 6 fi"ciary "ty so shol" be harsher, 9+ st" ofoster v. family member *less harsh oster 6 Bi"ciary responsibility: stems from family members assmption that theytrst one another more than commercial rltship. Therefore, cts want to protect trsting person *vali"ate trst byassming fi"ciary rltship. Bactor: family3commercial property *bearing on st" of oster in or"er to get rental payments

oster in 9+ is claim of absolte ownership an" "enial of cotenancy rltship by occpying cotenantE Miability of occpying coowner for rent to other coowners



have to re4est e4al se an" en0oyment of ppt&y, sometimes re4ire "enial of right to enter *"eman" or an attemptto enter, yet not sfficient to 0st ask cotenant to leave b3c they have >FF right to lan" as well.

T$ree different r%les for in7ossession co7o!ners to o%t7of7ossession co7o!ners*

> inority r%le: inpossession coowner pays fair mkt vale rent to otofpossession coowner'if otofpossession coowner "oesn&t ask for rent, then start SoM for 9+ *b3c CC+ coowner has right to get rent 6ownership right to collect rent

E a=ority r%le* Pay rent M start So< for .P only !en oster occrs, inpossession coowner "oesn&t pay rent nless oster*so high st" of oster for this. *esult : s inpossession coowner "oesn&t pay rent, an" 9+ not triggere" *goo" b3c then yo know if 9+ starts7can&t recover rent nless inposs oste" by otposs, inposs agree" to pay rent to otposs, or inposs stan"s infi"ciary rltship to otposs *ationale+ promote pro"ctive se of ppt&y bt rewar"ing cotenant in possession3se of ppt&y, bt also gives rightsto otposs cotenantCarrying costs+ inposs has to pay e!penses of pkeep *eg. ta!es, mortgage interest, repairs' if that e!cee"s rent,then inposs has right of contribtion,uster+ act by one cotenant to "eprive another cotenant of right to possession *occpying cotenant refses toa"mit another cotenant into possession, "oesn&t respon" to letter, etc. *fle!ible, "epen"ing on 0ris" *emedies+ oste" cotenant can get share of reasonable rental vale, sit to partition ppty

Pay no rent yet o%ster std lo!: inpossession coowner "oesn&t pay rent to otofpossession cotenant, yet low st" ofoster. *eg. can be verbal isse' then have to worry abot low stan"ar" in 9+ing

J +not$er 'inority r%le: inposs re4ire" to accont for otposs&s share of reasonable rental vale of ppt&y *after "e"ctinge!penses of pkeep *ationale+ br"en on inposs cotenant so encorage rental agreement *less litigation

p. VE, YE: ( H W fight, an" W leaves the hose b3c of absive treatment. Is this oster *absive treatment?9ns: Shol" se high st" for osting *to start 9+ A low st" for osting re: rental payment *b3c people in this sitation fearfin physically absive relationship b3c "on&t want to promote fearflness *people too fearfl to protect their rights, so thenwol" have to create rles to a""ress people&s rightsseparate 9+ an" rent payment as separate isses

!artC"a%g$ . a'son, p. V')Ts *( H W, ( gave lease to person who bilt a bo!ing pavilion on ppt&y' W wants to voi" lease%t: hel" that ( can make lease w3o W&s consent yet W can attempt to en" lease.%t: )T can lease w3o consent of other )T, yet if lessee refses to allow other )T se ppt&y, then other )T entitle" to rent, other )T can

also partition, force an oster, get an acconting *partition of lease> Inkin" partition: "ivi"e ppt&y an" en" coownership *yet then sacrifices right of srvivorship

E +artition the lease *get acconting: as cotenant with Sampson, she is tenant in common.Cptions: "ivi"e half bo!ing pavilion for W an" (. Oo can either "ivi"e the property with partition in kin" *"ring lease

perio", "ivi"e time yo&re sing property, sell lease this is only "ring time of lease if yo "on&t get along with lessee an"

yo&re cotenant +artition by sale: ppt&y sb0 to sale, an" might give ( procee"s for improvements of lan"J Cster: W has occpancy rights *same space b3c coowners, so attempt to assert rights to piss off bo!ing gy

Shol" W be bon" by rental price if less than fair mkt vale?9ns: %ts say she can get portion of (&s rental vale or half fair mkt vale for lease term

Risk in oster *b3c lessee might partition b3c he can be largest bi""er, or might a"" con"itions to lease 9lso, "epen"s if lessee thoght ( represente" all ownership *cts can "eci"e if W can&t even try to get lan"

Is bil"ing an oster *against W&s wishes? (as lessee oste" W by bil"ing an" locking her ot?oes W have entry rights to bil"ing? es since s!e !as a rig!t to occpy t!e !ole ? s!old !a)e !ad rig!ts to enter t!e

bilding #b;c s!e !as 300 possessory interest in land$

oral of t$e story: none of these options help -rs. Swart=baghGS general rle: if ob0ectively speaking, it&s an improvement, then allowe"?ea&er position: if yo like something abot the lan" that&s not economically vale", in weaker position. Protection 'eas%res: contract with all coowners *recor" any "ocment that concerns real ppt&y

+,,OUNTIN (OR ENE(IT +ND IPRO/EENT

Sitation 3: %deal co4oners!ip sitation 3

9 H / own lan" with hose on it, an" neither can occpy so rent to % *mortgage, insrance, an" ta!es, bt leftover *pt into repairaccont.

+ossible "isptesWhat kin" of improvements3repairs shol" be ma"e?

J



Who agree" to rent to %?Shol" have gotten more rentN

Sitation 2: .bsolte orse> coowner living there *> person reaping benefits an" another also bearing costsRent *fair mkt rental K DEL3month *9 lives there an" "oesn&t pay rent, 9 H / are coowners

Scenario >: mortgage3ta!es3insrance *-3T3I K DJL3month *carrying costsS!old in4possession cotenant get O2;mont! from ot4of4possession cotenant for e"penses ;o ot4of4possession cotenant

getting any rent> Hardest !en mortgage is !ig! #beginning$

Ctofpossessor: losing opportnity cost *DEL H owe DEL Scenario E: -3T3I K DEL3month, shol" / pay D>L3month??!en t!e fair m&t rental )ale T carrying cost s!old occpying co4tenant be responsible for t!is>Scenario : -3T3I K D>L3month, shol" / pay DQFF3month?S!old eac! co4tenants pay O600 eac!>

Scenario J: -3T3I K DQFF3month' / K col" oster, partition, etc.Bairness of one cotenant having rent while both have carrying cost.-3T3I K share in appreciation *lan" vale, yet "on&t have to connect to rent

(owever, can say that 9 gets appreciation H rentfree sitation

Cptions: 7 %f no agreement t!en based on ,risd 8+aying carrying cost K maintaining ownership interest *investment an" rent is very "ifferent *some 0ris"ictions "on&t "o this

-ight have to pay rent *if carrying costs

-a0ority 9merican law on inpossession cotenant:*Lage brig!t line rle if B-R K[ carrying cost, then inpossession pays carrying cost A no rent7not niformly applie" in 9merican law8yet other corts keep this separate b3c it&s almost like absent oster 6 otofpossessor can&t se ppt&y T(I;L 9/C#TT(IS C; OC#R CW;

+ayment of rent in oster sitation:a=ority: "on&t pay rent nless oster, yet if oster st" low, then most pay rent w3 oster *an" ma0ority opinion irrelevant

-!in& abot rent differently it! carrying cost

REP+IR ON PROPERTY

repairs are volntary so cotenant can&t be compelle" to contribte, yet mst wait ntil partition or acconting *set off the amt spenton repairs *reimbrse" for necessary repairs5estion of 1necessary repair2 an" are yo 1overspen"ing2?

IPRO/EENT TO PROPERTY

no "ty to improve *only get vale a""e" by improvementriskyN "ample: %oown hose K DJFFL *E be", > bath

make improvement so hose K DPFFL *then yo obtain DEFFL increase" vale%ort of e4ity "eci"es "ivision even thogh there are some st" measring ways *"etermine" casebycase

> %hange" valation in property after improvementE epen"ing on improvement, might not vale a""e" *if something like carpet, which might change an" not a"" vale to property

Improvement sitation: take p an" "own si"e risk, an" slit t$e cost 5K) +s? ryant a"o%t t$at again.

+cco%nting* !$at4s co'ing into roerty and o%t of roerty

Don4t $ae if one erson lie in $o%se and no saleFrealiCation0 etc. 5erson can4t as? for M or areciation)

1) Not getting along and artition roerty 5recognition of i'roe'ent)

2) Renting to 3rd erson 5get 'ore rental al%e "Fc of i'roe'ent) as? for acco%nting t$at reflects i'roe'ent $ig$er al%e

3) Not artitioning roerty "%t sell

9) O%ster ot$er erson ay rent.

7A$ateer yo% can s$o! 'e a"o%t increase in al%e yo% get. 5'ig$t lead to 'any i'roe'ents in roerty if yo%

t$in? i'roe'ent is good0 t$en yo%4ll sti'%late t$at ?ind of actiity if allo! genero%s i'roe'ents in roerty

t$en "%rden for legal syste')

get cost of improvement back, an" then split all increases in vale *why wol" yo "o that? give people enogh incentive to

keep property improve" yet still want to make them catios 6 might not be increase in vale an" want people to conslt withother tenants an" know that yo "i"n&t own yor property yorself' so people can L to 0st get all pswing of improvement' an"absorb fll "ownsi"e risk *not allowe" to harm commnity bt can benefit commnit

Q



p. XJ, H as&ed ? to ta&e care of !im and in retrn for t!at ? ill get property after H dies yet H didnt de)ise land to !er bt to Hs dag!ter from anot!er ?*

9ns. %ontract nenforceable for lack of consi"eration *W owes ( marital "ty of personally caring for him when ill' so performance of a pree!isting legal "ty can&t serve as consi"eration.

p. JE, * . and B are planning on getting married and to ee&s before marriage by a !ose and call t!emsel)es tenancy by

entirety* -!en t!ey di)orce and . con)eys !is interest in !ose to C* C brings action to partition ppty* ?as it tenancy by

entirety>9ns. 9ren&t Tby$ b3c con"itions weren&t met so col" be )T *b3c intent or Tin%. Sppose if )T with right of srvivorship *9moves ot an" gives to %, then trns into Tin%Tby$: protection from spose&s cre"itors bt then can&t se ppty to secre loans, etc. can&t partition, stck ntil "eath or"ivorce.

a!ada . Endo *(awaii 0ris"iction, p. XQ' Person gets into accident and getting sed* D1esnt !a)e money bt !as -by property* Con)eys property to son b;c property at

ris& yet b;c property as -by cant get to property so con)eyance doesnt matter*%an only have Tby$ with resi"ential ppt&y, can be reachable by only certain type of cre"itorsstrong societal interests to maintain ppt&y for family *b3c se as loan for e"cation, etc so protect against cre"itors *an" if cre"itors

know abot Tby$, then it&s all goo"' yet problem when cre"itors is gov&t or tortos "amages claim *corts

ifferent ways we can solve "ispte *tenancy by entirety: Debtor ons in - by : 300 of property;possessory interest it! conditional rig!t of sr)i)ors!ip creditor Jsonds li&e t!e

!ole banana to meK

> might feel that way abot "rg3govt3tort cre"itors, yet not for -acy&s chargeE since cotenant has >FF ownership as well with right of S, then no cre"itors can get to it. wait to see who gets right of srvivorship *if ebtor gets, then cre"itors take them, or else other cotenant gets property when

ebtor "ies

Tby$+ossessory rights 6 own whole an" not by half, spose can&t partition w3o permission of spose, cre"itors can&t get to him.Right of srvivorship 6 like )T, yet right of srvivorship can&t be "efeate", har"er to break nities ;ot all states have Tin$ an" not for all types of property, yet all have Tin% an" )T

%re"itor 1reach2: *p. XP> 9ll 6 %re"itors get all b3c hsban" able to convey entire property 6 ;CT C;$ 9;O-CR$E %re"itors have no reach b3c Tby$

+ossessory rights an" right of srvivorship of "ebtor cre"itor takes place of "ebtor in Tin% with right of srvivorship *sbstittion instea" of conveyance

J "ebtor&s take cre"tior&s right of srvivorship an" all other cotenant to hol" as BS9

p. E, *: +reviosly, since ( took W&s real ppt&y alrea"y, can&t have Tby$ in real ppt&y yet now yo can. H M ? !as - by !ome !ose brns don and H dies 6 days later* %insrance claim pays O300*

Who gets money?> give D>FFL to W b3c its T by $' or E give D>FFL to W b3c trns into ).T W get b3c rt. of srvivorship' or

nless T by % 6 then (&s estate gets half *DQFL.

#nite" States v. >QFF Mincoln 9vene, p. E H sed ppty for drgs and no go)t ant to ta&e possession of ppty yet ?>

1ption 3: If Tby$ an" criminal activity of one spose

becomes T in % *gov&t, -rs. /' "oesn&t work b3c -rs. / has >FF possessory interest in itCption E: T by $ gov&t obtains -r. /&s rt of srvivorship, -rs. / has e!clsive possession H rt of srvivorship' "rgs ba" yet

respect -rs. /&s rights, fe"eral law conte!tba" reslts for -rs. /: can&t pt mortgage on ppt&y, can&t alienate ppt&y *only has maybe life estate, can&t rent *b3c nee" both Tby$&s signatres' oesn&t give lots of protection to -rs. /' an" can&t 9+ against gov&t' want to protect innocent

4arital property "istinct from separate ppt&y *ppt&y yo "on&t share even if yo&re marrie" 7all 0ris"ictions recogni=e8 #eparate property 6 inheritance, ppt&y yo have before marriage'tren" to move towar"s e4itable "ivision even if separate paycheck into separate accts 4arital property 6 earnings after marrie", frnitre se"

P



,n>going marriage: isses' 6ivorce: what is property? (ow "o we "ivi"e p isses in "ivorce? 6eath* what rights "o yo have irrespective of type of property yo have *Tin%, etc.?

2quitable division 6 "ivi"ing ppt&y in "ivorcee4itable "ivision of ppt&y so "oesn&t matter if separate accts with spose *title "oesn&t matter' e!cept if prenptialagreement

Alimony 6 compensation for victimi=e" spose 7"ring time when there wasn&t nofalt "ivorce, so to "ivorce nee"e" to fin" falt inother spose.

4aintenance 6 payments from financially more able person to financially less able person to help them get back on their feet *after"ivorcessally con"itione" not on falt, bt con"itione" on economic "issimilarity btw two partiessome 0ris"ictions combine with falt basis H nofalt basis' yet s no falt

*ehabilitative alimony 6 neer term t!an maintenance

person who has lower income potential nee"s time to become a"e4ately, sfficiently competitive in 0ob market, so b3c ofthat "elay, the person who is alrea"y there will pay money for perio" of time "esigne" to give lessor income person theopportnity to get p to spee". *#sally connecte" to "egree program H living e!penses, etc.

Do e bring in to pool t!e degree t!at person !as earned> Do e bring into pool t!e career t!at one person !as de)eloped

and ot!er person !as not>?!at is sb,ect to di)ision in conte"t of di)orce> #/ra!am l&s cases$

In re arriage of ra$a', p. JF>' %s degree earned dring marriage conted in marital property as opposed to separate property>egree earner: can speclate earning potential' yet this is personal to earner, isn&t inheritable, not transferable *ppt&y not inheritable

an" transferable, bt can think abot it as M$ an" parternship, similar to loans yet with loans, finite en" yet with earnings, notntil "eath

;on "egreeearner: investment in monetary3emotional3(( spport' opportnity costs' goo"will *help bi=

Lalation 6 speclative/oodill 6 e!pecte" income stream from client base "evelope" with marriage *"ivisible "ring "ivorce

Contract #prenptial$: har" to pre"ict what yo&ll feel in ftre *eg. srrogate mother contract' also "o we ant legal rle that sets into place legal e!pectations of people 6 might not work ot, everyone ot for themselves?

Cleanp problem: if spose makes more D an" at "ivorce, other spose nee"s welfare, then shol" split money base" on spose&searning *potential. Where line to be "rawn *?

Contribtion: where is line for who can claim for yor sccess? )apan lets teachers contribtion cont

El?%s . El?%s, *>> p. JFX %sse: "oble conting *if yo give e!wife QF an" then get En" e!wife QF of r retirement, yo&re ot of lck (itable di)ision: %ts "on&t respect marital ppt&y v separate ppt&y *see everything as marital ppt&y %9 has QFQF "ivision in commnity property

all p for shifting nless yo have a prenptial agreement *that withstan"s scrtiny .limony: contines if compensate" for wrong even if alimonygetting spose remarries b3c it&s pnitive +aintenance alimony: en"s if spose getting D A "oes okay, or spose paying alimony makes less money *"epen" on payee&s nee"

an" payer&s ability

V



,$ater @* Landlord and Tenant

Lease*

/len" of property *MM only has right to reenter an" repossess the lan" on breach of cov an" contracts law *mtally "ep covenants'Tren": se" to be in"ep covenants rle in leases, bt now leaning more towar"s contract law *if MM breaches cov, can w3hol" rent 'nteresse termini : n"er common law, ntil T enters, T ha" no estate in lan" *only contract right to enter, yet now that&s fa"ing A if T

breaks lease bJ taking possession, MM can se for "amages

Leases diff fro' ot$er rlts$is*

Bor present possessory estates:*> fee simple*E fee tail* life estate*J leasehol"

Ley characteristics of lease:> ;otice *what is re4ire" to en" leaseE %onse4ences of "eath

Does lease sr)i)e deat! of << or ->#determines !o long yo ant lease$

Transaction seen as leasehol" by *more likely a lease, as oppose to easement if:+arties& intention, what they call the transaction *<, bt not conclsive, ses permitte" *ses not limite", "efine" area *more specific

the "escription of the bon"aries, rent reserve" *perio"ic payment of rent, as opp to lmp sm, "ration *limite" in time/illboar" 1lease2: s seen as easement to come on lan" an" erect3maintain signMo"ging arrangements: "etermine" by control of occpant over premises

Micensee: hotel gest, rooming hose'Man"lor"tenant rltship: apartment hotel

Legal differences "t! leases0 licenses0 ease'ents*

*i leases can be oral, bt an easement is sb0 to Statte of Bra"s *SoB A re4 written instrment'*ii only a tenant has a possessory interest in lan" an" can bring a possessory action sch as e0ectment, trespass, or nisance

Tyes of Tenancies:> Tenancy for years:

a. Bi!e" perio" of time: no notice req%d b<c beginning<end dates *can be ]>yr b. %reation: s written, Statte of Bra" *nee" for ]>yr' sometimes limit Y yr for certain leasehol" estate *an" if over,

some cts say entire lease voi", an" if option to renew for perio" beyon" permitte" ma!, then entire lease voi"c. Termination: automatically ends at termination "ate

• /reach of covenant: MM has right to terminate if T breaches any of the leasehol" covenants' sometimes MM&s

right of entry: allows MM right to termination even w3o reserve" right of entry

• Srren"er: if T gives p leasehol" interests an" MM accepts K srren"er, writing is necessary if ne!pire"

term is ]>yr

E Periodic tenancy: period to period *eg. monthtomonth until termin notice given, automatically extended ' beginning "atemst be certain bt termination "ate is always ncertain ntil notice is given

a. %reation:

• /y $!press 9greement: e!plicitly says in lease

• /y Implication: implie" if no termin. ate, bt says rent payments at specific perio"s

• 9nnal rent payable monthly: where lease says, annal rent payable monthly *eg. DPL3yr, payable

DQFF3month, on first of month*i %ommon law *most 0ris": yeartoyear *bt seen for only agricltral lan"*ii -inority view: see as monthtomonth, esp for "wellings, not agricltral lan"*iii -atters: b3c "etermine" notice re4&ment

• /y Cperation of Maw:

• 9 Tenant (ol"s Cver: if tenant for years remains in possession after termination, MM may treat T as

perio"ic tenant on same terms as original lease

• Mease Invali": if lease invali" bt T goes in possession A T pays, then goes from T at will into

perio"ic tenancy *perio" of tenancy K perio" for which rent is pai"

X



b. Termination 6 ;otice Re4&": perio"ic tenancy atomatically renewe", ntil proper notice *in writing an" "elivere" to party fr either party bt gi"elines:

*i -st en" at en" of 1natral2 lease perio"

• %ommon law rles:

o (ow mch notice is given *K to length of perio" *bt not more than P months' parties may shorten or

eliminate re4&ment of notice altogether o ;otice mst specific last "ay of perio": notice mst fi! the last "ay of perio" as termination "ate

*ma0ority: or else termination notice is invali"o ;otice mst be given: so MM3T has a"e4 notice *base" on termination "ate or else invali"

Restatement: say that if invali", then en" on earliest possible "ate after "ate state" *to goalong with parties& intentions

o #tatutory modifications: re"ce Pmonth notice to >month for yrtoyr, an" allow monthtomonth

tenancies to en" on any "ay bt re4 > month notice

'ssue: MM "oesn&t gain anything from longterm perio"ic tenancy *b3c potential increase" lan" vales, increase" rental pricesno legal conse4 if T leaves bJ lease en"s

Tenancy at !ill: no state" "ration, contines ntil MM or T "esires an en"

• rare yet can be create" by lease for in"ef perio" that&s not tenancy by years or when tenant in poss yet "oesn&t satisfy SoB

• T liable for rent H "oble3tremble "amages if other T moving in

• MM can evict A no notice re4&"

• 1as long as MM "esires2 K MM H T both have rights to terminate

• 1as long as T "esires2 K T has "eterminable life estate or fee simple%reation:

• Specific n"erstan"ing btw parties that either party may terminate *nless lease e!pressly agree, then with

reglar rent payments, see as perio"ic tenancyTermination occrs if vali" warnings, or if one of these con"itions is met:

• $ither party "ies

• T commits waste

• T attempts to assign tenancy

• MM transfers interest in ppt&y

• MM e!ectes term lease to r" party

arner . erris$, p. JJV'

• oes lease which grants grantee right to terminate lease at "ate of his choice create *> "eterminable M$, or *E tenancy bywill?

• Cwner *grantor a""e" covenant into lease' yet also re4&" rental payments of D>FF *really cheap an" if "on&t pay, grace

perio" of F "ays

• Cwner "ie" an" e!ector wante" T off lan" *an" col" if T by Will

• $arly %3M: if lessee w3 right to terminate then to lessor as well

• ;ow: cts say no reason why that shol" be case then creates "eterminable M$

• Ctherwise, violates terms of agreement an" e!press intent of contracting parties

%sse: cts look at intent of parties *natre of rltship, bt mostly look at wor"s of lease, 1as long as T "esires2 an" it was written in

UGS-%1N : So "oes intent of parties matter at all in creating a TbyWill?

8oldoer tenancy or tenancy at s%fferance: when T wrongflly remains in possession after en" of lawfl tenancy. T liable for rent,an" lasts as longa s MM takes steps to evict T. ;ot notice re4&" to en" tenancy

• Rationale: to ai" those moving into apt *an" MMs

8old7oer Doctrine*

> $viction: MM may treat hol"over T as trespasser an" evict him n"er nlawfl "etainer stattea. other T can&t move in *lose rent, get "oble3triple rents b. hol"over: goo" e!cse *treble "amages3new leases?' cts look an" lessen "amages

E %reation of perio"ic tenancy: may, in his sole "iscretion, bin" T to new perio" T *with same terms as ol" lease 9ltere" terms: if MM notifies T before termination of tenancy that occpancy after termination will be at an increase" rent,

then T hel" to new terms, even if he ob0ects, as long as rent reasonable.

• A$at4s not $old7oer: few hors, when "elay is not T&s falt, seasonal lease *eg. smmer cottage

• Do%"le rent =eoardy: if T willflly stays an" MM makes written "eman" for possession, then MM may collect E times rent



• (orci"le entry stat%tes: most states prohibit forcible entry *eg. entry against the will of the possessor. MM can&t se force

or selfhelp to remove hol"over tenant *some also bar MM&s from sing sbtle metho"s: changing locks, yet states allowMM to evict tenant.

p. JJP *>' Mease has been for no fi!e" term 1at DEJL3year payable DEL3monthWhat&s perio"? %ts look at who wrote L, freely bargaine" *?, know conse4 of notice, T have opportnity to ask ?s+pt&y: assme K parties, L: look at e4itability of parties

(ederal (air 8o%sing +ct of 1;@6:

•

#nlawfl to refse to sell3rent a dwelling to any person b3c of race color religion or nat%l origin sex against persons withchildren except in senior citiKen housing and against handicapped persons

• can "iscriminate against: people who have to register as se! offen"ers *"iscriminate" against are not covere"' gay' obno!ios

people

• St"i=es MM&s con"ct

'ssue: har" to show "iscrimination: gay *can "iscr v. 9Is *can&t: yet if knock ot gays, then might knock ot most ppl w3 9Is 'ssue: Bin" ot if pro!y going on *permissible "iscrimination, or if "iscriminatory impact nintentional *yet intention irrelevant, onlyimpact has to be' har" if BB(9 has statte re4&ment 'ssue: (ave to show that pro!y connecte" with statte re4&ment *obno!ios K black, which isn&t permissible

9ote: complicate" when mi!e" =oning *bil"ing w3 commercial space H resi"ence

• Mocal stattes are stricter, so BB(9 is merely bare minimm

+dertising: prohibit a"vertising3making any pblic statement in"icating "iscriminatory pref *eg. statement to T3prospective T that

MM won&t rent to people protecte" n"er BB(9 'ssue: if only se white mo"els, violates if MT practice' yet small bi= might not be able to affor" to get "iverse mo"els' T

has to show behavior reslts in "iscrim practices 'ssue: welcoming3not welcoming images' preventing white flight *"iscrim?' cts say okay b3c it&s a""itional a"ver, not

e!clsive mkting strategy to target preferre" class' is BB(9 to create integrate" comm. or prevent race as factor?#S v. Starrett %ity 9ssociates, p. JPJ *' 1white flight2, so ha" 4ota for white applicants *Kly acceptable, same rent' ctssay impermissible b3c get apt base" on race, regar"less of yor motives' 4otas only allowe" for certain limite"3reasonable perio"s of time *if yo&re trying to recaptre what yo lost, yet *as a corrective, 4otas aren&t allowe" n"er BB(9

'ssue+ can&t say, 1female or %hristian female2, yet haven&t enforce" rle

EBe'tions: private clbs, "wellings for religios organi=ations, certain specifie" persons *to protect some types of close personalrltships from what is thoght to be an invasion of privacy> ingle7fa'ily d!elling *person leasing3selling if owns an" she *i "oes not own more than "wellings, *ii "oes not

se a broker, *iii an" "oes not a"vertise in manner that in"icates her intent to "iscriminateE 'all o!ner7occ%ied '%ltile %nit, %r$y eBcetion* person e!empt if offering to lease room or apt in bil"ing

of J3less nits, one of which she occpies A "oesn&t a"vertise in "iscriminatory manner' can&t a"vertise in anyway orse sales agent' has to "o it herself

'ssues* reasons "t! adertising yo%rself and discri'inating* *> hate speech concerns, *E beneficial to "eal w3 people facetoface

o%les . U 8UD, p. JPQ' MM lives in bil"ing an" "i"n&t want + living there. + states it&&s b3c BB(9 "iscrimination*chil"ren' MM aske" if chil"ren noisy b3c ol"er people in apt 6 an" e!empt

Disting%is$ no eBe'tion %nder section 1;62* Oet %ivil Rights 9ct of >XPP "oesn&t e!cl"e thisJ Religio%s organiCations* convents only for %atholics okay

9ote* rltship btw how yo a"vertise an" "iscriminating *hate speech concerns, beneficial to "eal with person facetoface, can&t seall whites for MT *yet arg of affor"ing nonwhite mo"els if small bi=

*eq%d : no intent re4&" yet ob0ective proof: patterns of e!clsion that reslts in "iscriminatory practices 6 overlap

Enforce'ent* aggrieve" person may se MM3seller in fe" ct, an" ct may give in0nction, actal "amages, an" pnitive "amagesProing Discri'ination*

*> + mst est prima facie case by showing: *i +&s member of stattorily protecte" class, *ii applie" for an" 4alifie" to rent the"esignate" "welling, *iii "enie" opportnity to inspect3rent the "welling, an" *iv hosing opportnity remaine" available forothers. *can 0st se reasonable inference 6 give benefit to +

*E / shifts to : show that refsal to rent motivate" by legitimate consi"erations having nothing to "o w3 +&s race, religion,ethnic origin, se!, "isability, or family stats. + 0st have to srvive alternative e!planation. *bor"erline 4ality of financialstats

* + then has to prove that allege" legitimate reasons are prete!tal an" not real reasons 'ssues: bsiness efficiency v. "iscrimination *picking top J lang to make application 6 b3c top J people' 2xample: wheelchair gy, got in0re" other way not @ietnam War, so as checking financial stats, re0ecte"

JF



inds of discri'inations:> Disroortionate effect on one race: not only by racially "iscriminatory prposes, bt also those that "isproportionately

affect racial minorities an" lessen hosing opportnities for them

• U . tarrett ,ity +ssociates, p. JPJ *: 1white flight2, so trie" to get more whites by giving them preference *same

rent, yet more likely to get apt to retain integrate" commnity. %ts: sai" impermissible b3c someone more likely to geapt b3c white *can&t "o regar"less of motives' yet for certain perio" of time, cts might allow city to give 4otas for people who historically were "enie" hosing *try to recaptre what yo ha" before yo lost it 6 cort may allow 4otasystem for limite"3reasonable perio" of time *as a corrective, 4ota system isn&t allowe" n"er BB(9

E eB discri'ination: also incl"es harassing T for se!al favors'-!og!t : can protect T by limiting BB(9 *to con"ct to remain in tenancy an" get essential services so that MM isn&t fearfl

of "iscriminatory impact an" maybe e!pan" other rights? 9lso, other parts of rltship, not 0st one rltship *MM

• Sometimes "oesn&t have to be tie" to repairs3living in rental nit *0st "epen"s on MM rltship' "epen"s on ct'

(a'ilial stat%s: can&t "iscrim base" on 1familial stats2 *e!istence of chil"ren n"er >X in family nit. Whetherrestrictions limiting Y occ3br 6 sb0 of litigation

EBe'tion:

• hosing occpie" solely by people PE yoH,

• hosing at least XF occ by at least > person QQH *an" nits mst have signif facilities3svcs specifically "esigne" to

meet physical3social nee"s of ol"er peopleJ Disa"ilities: 1han"icap2 K broa"ly "ef&e" as 1a physical or mental impairment which sbst limits >H of sch person&s ma0or

life activities2, e!cl"es "rg a""icts bt incl"es recovering "rg a""icts3alcoholics39Is

• Reasonable accommo"ations: MM mst make reasonable accommo"ations for han"icappe" T to get e4al

opportnity to se3en0oy "welling *eg. MM mst allow pet for hearing "og, even if no pets policy

Q tate tat%tes: some go frther to protect from "iscrim b3c of marital stats, se!al orientation, or age• arital stat%s: some cts say 1marital stats2 "oesn&t incl"e nmarrie" cohabiting coples' bt %9 incl"es *can&t

"iscrim even if MM refses b3c religios reasonsP +d'ission to P%"lic 8o%sing: empowere" to a"opt 1"esirability st"s& to "etermine eligibility for a"mission. St" col" be

weighe" only in in"ivi"al&s case, not "iscriminating as class *0st ob0 scoring systems

• $viction: if T in pblic hosing pro0 sells "rg, T forfeits apt' yet apt not forfeite" if one of sev occpants ses "rg,

an" owner of lease "oesn&t know abot "rg activity *only "rg "ealer can be evicte"

2xamples p. JVJ52) Discri'ination "ased on fa'ily stat%s0 and on seB

Which *if any of the following wol" violate the fe"eral Bair (osing 9ct?#a$ << !as @ single4family !oses and limit people to 8 so refse to rent to cople it! = c!ildren*

Discri'ination "Fc "ased on fa'ilial stat%s and not %nder rs. %r$y R%le 5'ore t$an 9 single fa'ily $o'e)

'ssues* market alternatives *for JH family nits, since BB(9 prpose to a"" a"e4 hosing for certain grops of people 'ssue: rational bi= "ecision? What is Jmem family has another chil"? *ationale: 8UD doesn4t li?e fa'ily siCe 5"ased on race and religion) large fa'ily siCes occ%r in certain religio%s

co''%nities and 'inority co''%nities 5s%"terf%ge for racial and religio%s discri'ination)

#ol%n: se s4 footage for occpancy rles' "iscriminates against smaller families *b3c rent for fll occpancy, law protects largefamilies

'ssue: can ask abot legal immigrant stats to people w3 accents after 3>>, yet can be se" to "iscrim base" on nat&l origin' *nat&lorigin v legal immigrant stats

#b$ < reglarly rents 3br apt to 2. 2br to 2. 2C bt no 3br to 3. 3C and 2 br to 3. =C .ns: epen"s on local or"inances abot room sharing, yet not allowe" to ask abot who is living in what room *"iscrim againstsingle parent

#c$ < refses to rent to a !eterose"al cople b;c t!ey are nmarried .ns: yes, b3c imposing M&s belief&s pon cople

#d$ < refses to rent to gay cople b;c !e ob,ects to partners se"al orientation*

.ns: yes, b3c not kosher.

#e$ < rents to single oman and t!en se) ee&s into tenancy begins !arassing !er it! demands for se"al fa)ors

.ns: BB(9 "oesn&t allow

5#$STIC;: can only ol" people "iscrimination against chil"ren? %an yo "iscriminate against people w3o chil"ren b3c then they&llcomplain abot chil"ren?

J>



'ssue: Bamilial stats, marital stats *only living together, not marrie", age' not having chil"ren' MM can frame ? in econ terms, an"say it&s harmfl to bi=

<< can frame (estions in prely economic terms and say it !arms bsiness if t!ey rent to t!ese people #eg*I no c!ildrenIdeal

it! problems of argments abot noise;damage &ids ma&e cost to <<$ #eg* – age – if lea)e sto)e on and bilding brns donlea)e ater on econ problem$ #eg* – non4marital relations!ip – relations!ip more fragile t!an t!ose c!osen to marry t!en ris&

t!at one ill mo)e ot and all rent cant be managed by person !o is left be!ind legal problems to reco)er rent$

'ssues:

• 'ar?et clos%re iss%es 6 important yet not controlling' eg. b3c we "on&t care abot no hosing for se!al offen"ers

• ProBy for discri'ination: reflects what we feel abot certain offenses:

• eB%al offenders: once se! offen"er, always' "angeros' costs to prevent yo from becoming one

• Dr%gFalco$ol a"%se: societal attit"es changing' believe they are controlle" behaviors

o If no proof of "rg abse, can&t "iscr against *yet "on&t have to accept illegal activity

o %an&t "iscrim b3c alcoholic, yet might case problems *an" if MM has liabilities, MM shol" be able to

choose Tso Oet if MM knows of "rg abse, then gov&t can sei=e ppt&y

o %onfsing b3c can&t "iscrim for past se bt can for present se

• cary loo?ing tenant* can&t "iscriminate against b3c can&t rely on fear *yor own or Ts' BB(9 re4s soli" evi"ence

• EB7conict: not protecte" class, might be n"er state law

• ental $ealt$* can totally se as sbterfge: "og as companion *fat person ses "og to e!ercise, scare" of "ark an" nee" cat 6

0st nee" "oc to sign off, b3c BB(9 gi"elines so broa"

• Disting%is$ing secific nationality or religion 5discri')* 9fter yo rente" to someone, if MM says, 1nlike in -e!ico who "rink

in pblic place, we "on&t "o this in or apt comple!.2

• Preent ideology 'tgs in co''on area* white spremacy mtgs *either allow everyone to e!press people&s religios belief so

everyone ses common area, or say, no religios mtgs allowe" *either none or all allowe" 'ssue: if people trne" away from hosing *which is < nee" b3c of charac they have, society shol" be concern on where they aregoing to en" p 'ssue: Shol" there be levelplaying fiel" for everyone&s hosing *an" sprea" cost to MM?

Reasons !$y LL s$o%ld "e a"le to discri'inate freely:> +roperty entitlement *property interest' right to e!cl"eE Reglating in"stry as whole is costly an" more br"en then less likely there&s hosing *b3c MMs provi"e services +roperty "amage *when re4ire" to have chil"renJ +roperty vale "ecrease

Q (igh trnover *many people leaveP Religios rights *MM&s own religion isn&t respecte", have to con"one people *eg. nmarrie" people, con"oning

fornicationV Increase crime A cost of secrity *eg. increase" nmber of racial poplationX /siness "ecisions base" on statistics an" profitability

o b3c pblic interest of segregating people an" e!acerbating ghettoi=ing an" school fn"ing ine4ality' hosing too

valable *want to protect people who might not have hosing optionso all MMs have same restrictions, so not too ta!ing

LL arg:-: Why "o they solve problems in "iscrimination w3 local or"inances H BB(9 an" bear br"en for homogenos hosing rights?+: Ts might be kicke" to streets *creates larger problems. %an&t look at MM in isolation.

Local ordinances: ;O: okay to "iscriminate against celebrity stats, not in %9,areer* can&t b3c then give more points with longterm 0obs like compter programmingAater7"ed: can&t "iscriminate against

,an as? 5rotects LLs): relevant econ interest: can they pay rent, take secrity "eposit, some MMs want income ! rent yet can&t askabot income sorce, mst ask for all income sorces *not 0st hbby

((8+:

• approp that prohibit "iscrimination ncontrollable by person *b3c yo can&t "o anything abot it, yet relates to important nee" 6

hosing

JE



• if something yo can control, why shol" BB(9 protect yo? *yo chose how yo comfy yo make MM feel, yet concerns of why

shol" yo have to make MM feel comfy?

• encorages large MMs who have time to look at "etails of in"iv applicants as oppose to momApop MM companies

• %9 "oesn&t have -rphy&s e!emption

Landlord4s D%ty to Delier Possession

1. Legal Rig$t to Possession* MM has "ty to transfer to T at beginning of tenancy legal right of possession' If another personhas paramont title, then MM in "efalt

a. Para'o%nt title: any interest3title in lease" lan" that&s paramont to MM&s interest". Tenant4s re'edies rior to entry:

if paramont title, at time lease was signe", T naware of it, T prior to entry may terminate lease

if T knows of paramont title at time he signs lease, presme" to waive poss of eviction by paramont

claimant *MM not liablec. +fter tenant enters into ossession:

• after entry, T has no reme"y against MM ntil he&s actally evicte" by paramont title

2. +ct%al Possession* a. JEnglis$ r%le 5'a=ority ie!): MM has "ty to "eliver to T actal possession, as well as right to possession, at

beginning of term. *if MM "oesn&t remove person w3in reasonable perio" of time, then MM "efalts

Rationale: intention of parties incl"e se of ppt&y, not lawsit against prior T' also MM in better position,

knows other T better' MM more familiar w3 eviction proce"res, can evict w3 less cost

Tenant&s reme"ies: for MM&s failre to provi"e actal possession, T can terminate lease A recover

"amages for obtaining other hosing, refse to pay rent for that time A recover "amages *incl"ing costof renting other places in e!cess of rent, cost of osting hol"over T, loss of anticipate" bsiness profits

'ssue: more niform *if MM responsible, MM has opportnity to write in lease 1not responsible to hol"overTs2 an" obtain lower rent

". J+'erican r%le 5'inority ie!): MM has no "ty to "eliver actal possession, so isn&t at "efalt

• Rationale* *> Mease conveys leasehol" to T, p to T to take possession' *E T has right to evict

hol"over by smmary procee"ings an" "oesn&t nee" MM to reme"y' * MM shol"n&t be hel" liable foract of hol"over' *J since MM not re4&" to evict trespasser after T takes possession, MM shol"n&t bere4&" to evict trespasser bJ T takes possession

• Re'edies against $oldoer tenant* se to evict hol"over an" recover "amages' or treat hol"over T as

T for another term *an" get rent paymentIss%e* can MM get lower rent an" go n"er 9merican rle? Is it okay policy to allow people to bargainaway their rights? Ts "on&t know they have to bargain for this *think it&s nnecessary

Iss%e* commercial property *people check ot beforehan" so "iff rle btw commercial an" resi"ential ppt&yIss%e* what abot if yo&re lan"locke" *if yo&re lan"locke" by grantor, then have easement, or elsescrewe"shol" have checke" ot beforehan"

'ssues:

• e4ity?

• Megal options: T col" contract actal possession into lease, get "amages from hol"over T'

• %ts are more protective if M is silent *sometimes assme that MM provi"e actal possession' MM best position to choose T

nlikely to hol"over

• -ost people "on&t know they have to bargain for actal possession *makes sense if look at lease as contract

• iff "epen"ing on commercial3resi"ential T

• Oet T shol" have atonomy, as opp to MM so involve" in life *more responsibility, more MM in yor lifegoing into yor apt,

etc

+ssign'ent and s%"letting

1. +ssign'ent: nless lease prohibits, T or MM can freely transfer his interest in premises. %3M: if T transfers entire remainingterm, then ma"e assignment, an" assignee comes into privity of estate w3 MM' assme that TE knows all terms of originallease

a. Priity of estate: makes MM an" assignee liable to each other on covenants *right to se' have normal MMT rltship0parties in possession

Iss%e* starte" b3c important that MM gets D flow *rent serios obligation b. Priity of contract: +3 signe" original L, obligations bin"ing regar"less if in privity of estate 0parties in J

J



2. %"lease disting%is$ed fro' +ssign'ent: %3M: if transf less than entire remaining term of leasehol", then sblease an" MMof sbleasee *no privity of estate

a. Reersion retained sblease if T retains reversion in property b. Rig$t of entry retained 6 if breach of covenant sblease *if T transfers entire remain"er of term at a higher rent

than he is paying, w3 right of reenter if rent not pai"51) +lication M leases for T for >F yr at DEFF3month, T gives remain"er to TE for DEQF3month with T retaining

right of entry if rent npai" *right reserve" in forfeitre clasePOEORY INTERET RI8T

*a co''on la! ie! *assignment 6 assignment b3c T retains no revision *right of reversion viewe" only asmeans of enforcing TE&s contractal obligations

*b 'odern ie!rig$t of entry 'a?es it a s%"lease 5Restate'ent) reservation of right to reenter fornonpayment of rent K 1contingent reversionary interest2, so transfer is sblease.1) LL4s re'edies M can se T for rent on privity of L, an" then M can evict TE for breach of promise ofMMT. Oet MM can&t hol" TE personally liable.

c. inority ie! intention controls 6 hol" intent of parties "etermines whether assignment or sblease an" thata""itional rent K in"ication of sblease' an" lmp sn, over installments K assignment

3. D%ty to Pay Rent a promise to pay rent is cov rnning w3 lan" *promise can se any person on cov w3 whom she is in privity of estate. MM can se either privity in L or estate for rent payment

a. +ssign'ent est privity of estate w3 MM an" assignee *personally liableLia"ility of original T still liable if privity of L

51) T is s%rety TE is more liable b3c in possession an" T is secon"ary, yet M can se either T or TE, yet if T pays, can se TE for recovery. TE an" M can&t change terms to pre0"ice T *then T release" as srety

52) Release "y LL 77 T escape privity of L with e!press or implie" release *0st b3c MM consents toassignment "oesn&t mean release"

53) Noation if M consents to assignment to TE an" releases T an" then TE n"ertakes promises of lease Knovation *new L btw M an" TE' prev L w3 T an" MM en"e"' TE A MM have privity of estate H L

Aays to get rent fro' T2*

51) MM has separate L with TE52) TE has e!press bin"ing to primary lease53) Sblease ma"e with inten"e" r" party beneficiary *some 0ris "on&t like b3c T beneficiary of T> *so then

T liable, where "oes it stop? Scope too broa"

ol%tions*

> go after original T for rent

E look an" see if MM can be r" party beneficiary then see if it&s an assignment *then privity of estate establishe"

Lia"ility of assignee 77 TE only responsible for rent accring "ring time of his leasehol".+lication* M leases to T for DEFF3month. T becomes > month arrears. T gives to TE, J months arrears, TEassigns to T, reserving a rent of DEQF3month59) L recoers fro' T3* M can recover DEFF3month from T "ring privity of estate *can&t recover DQF

e!tra3month5<) L recoers fro' T2* M can recover DXFF from TE for J months when privity of estate5@) L recoers fro' T* M can recover D>L *Q months in "efalt 6 > for T, J for TE b3c privity of L. Then T

can se TE an" recover DXFF *J months. b. %"lease* not personally liable to MM for rent

Rationale: no privity of L3estate' yet MM can ost sbleasee ot if not rent

c. T$ird7arty "eneficiary s%its* if assignee3sbleasee assmes cov of master lease, then "irectly liable to MM *who isr" party beneficiary of L btw T an" sblease, an" liability of assignee3sbleasee contines after privity of estateoverN *assmes T&s privity of L

9. ,oenants +gainst +ssign'ents or %"lease* leasehol" is freely transferable *nless covenant that says it&s nota. EBress coenants*

• MM may insist on no transfers in lease *bt since restraint on transfer of lan", strictly construed . 1not to assign2

K can still sblet' 1not to sblease2 K can assign' can transfer by will, or involntary transfer *e!ection or bankrptcy

b. +r"itrary denial of consent*

JJ



• if lease contains covenant against transfer w3o MM&s consent, ol"er view that MM may arbitrary refse to accept a

new tenant *no "ty to mitigate "amages, as or"inary Ling party "oes n"er or"inary L principles' propertyconcept prevails over L concepts

inority ie!* MM&s "enial mst be reasonableA$at4s reasona"leK

• ob0ective test that MM acting as reasonably pr"ent person, factors *financial responsibility of new T,

sitability for new bil"ing, bt can&t consi"er econ a"vantage' can&t refse as strategy to get T toterminate lease *Len"all v. $rnest +estana

c. Aaier of coenant* MM may e!pressly3implie"ly waive cov against assignment of sblease. Implie" *MM accepts

rent from assignee w3 knowle"ge of assignmentR%le in D%'or4s ,ase* when MM e!pressly consents to one assignment, then cov becomes nenforceable *oncecov waive", the cov is "estroye"

,riticis'* "oesn&t make sense b3c prpose of cov is to assre MM has responsible TEBcetions*

,oenant "inding leasee and assigns* even if MM allows assignment *tho e!presse" cov inlease, then cov still bin"ing with assigneeLL4s li'ited consent* if MM says, allow only for this assignment, the Rle in mptor&s case"oesn&t apply

+r"itrary ref%sal* MM shol" have e!plicitly wrote arbitrary refsal in leasea=ority r%le* T responsible to re4ire terms of responsibility if commercial *b3c on e4al footing, b3c MM chose T *costly(%nda'ental fairness rincile: *who gets "iff in rent MM shol" take psi"e risk *b3c lease contingent on T staying there, yet alsovale can go "own, an" T still bon" by L *why shol" MM only get psi"e risk an" not "ownsi"e risk? *Len"all v. $arnst

-%estion of !$et$er so'et$ing called s%"lease yet gies re'ainder of lease is a s%"lease or assign'ent*

• Intention of parties, what it is *regar"less of intent, what it is calle" in lease *persasive yet not conclsive

• i" parties have constrctive notice of covenants in main lease?

• %3M: 0st re4s that fll remain"er of lease, presme yo know all terms of lease *not sympathetic

• Cther view: assignment terms have to be same as original L' replicate MMT L' TE agrees to prime lease terms *nee"s to be clear

abot what is in MMT L

• Cther view: re4 constrctive knowle"ge of who people are *to have privity of estate

• Cther view: if TTE has L mirroring L with TMM, then ;39 *bt can "o to reassre MM an" others say, okay an" MM can reach

TE *privity of L

• -ight want +rivity of L for sbleasee so "on&t have string of assignments *esp for T if T still in privity of

L, who will still be responsible• If TE says nothing, then TE can only reach TE for privity of estate an" after ot of possession, no liability from TE to MM

• TE shol" have constrctive notice if 0ris" re4 recor"ing, or else in4iry notice: shol" have aske" T before signe" lease *when

getting assignment

• -o"ern tren": sbleasing people makes themselves vlnerable to prime lease terms' so MM can reach them throgh privity of L

instea" of privity of estate

• %3M an" tra"itional approach: if privity of estate, respons for covenants *assme notice

• TE ha" option of choosing a sblease *b3c then no privity of estate

• If sbleasee signs L that says, 1I will pay rent2, then respon even when ot of privity of estate to T. If covenant in sblet

agreement that TE respon to r" party beneficiaries, then MM can go after TE *privity of L establishe" 6 0st for perio" of possession

•

Some 0ris" want more: new L btw MMTE, bt "obtfl an" rent very < to MM so cts allow

• If MM, after e!presse" cov in lease saying no sblet or assign w3o MM&s permission, allows sblet *receives rent, then accepting

sblet. (owever, T> still respons b3c privity of L *nee" novation from MM to get ot of privity of L

• 9lso allow other assignee, sbleasees b3c allowe" one alrea"y

2xample: p. JF Ec' T ] T> ] TE ] T *all assignments, T> agrees to assme all covenants in lease, an" others "on&t "o anything.M ses T>, TE, T9ns: T wasn&t release" by novation *even if T> assme all covenants in lease' T> can be liable b3c privity of contract *yet no privity

of estate' TE *no privity of estate, then can&t be liable, only responsible for TE&s time perio" for rent' T liable b3c "efalte".noation: release privity of contract

JQ



+rotection v. rights *MMT

Residential . co''ercial lease* reasona"ility of acceting s%"leasee or assignee

• $valate tenants "ifferently

• +rev: no obligation to look for replacement T, sometimes cts look at parties for probable e!pectations if silence *yet s assme

that MM ha" arbitrary refsal so if T wante" that remove", shol" a"" it in lease from getgo

• Commercial lease: easier to get reasonableness as "ty b3c har"er to eval resi"ential tenants *so "on&t re4 most of the time

• *esidential lease: if "on&t accept, increase" cost on MM *an" sprea" cost to other tenants isn&t that tre with commercial property as well tho? Cr 0st b3c commercial property "iff?

• 5actors you consider : financial stability3responsibility *rent, sitability of propose" se for ppt&y *eg. e!tensive remo"eling,

legality of propose" se *legal con"ct, =oning rles, nee" for alteration of premises, natre of occpancy *eg. office, factory,clinic, etc.' possible for $$ to show issue based on economics 0fact characteriKation

• ,ther factors in commercial reasonable stds+ property as whole, MM&s i" as oppose to being other bi= owner, other T at risk if MM

allows sbstittion, new T conflict with image3other Ts *anchor large stores 6 might have restrictions by other T&s Ls' MM wantsto protect other T&s profit *if get rent as age of sales

• Area of litigation+ if bsiness sharing *rent is age of bsiness an" T leaves b3c profiting a lot *big area of litigation

• 5actors you can Lt consider : personal taste, convenience or sensibility, can&t "eny consent to change higher rent than originally

contracte" for, previos ba" history *e!"rga""ict, e!arsonist, all BB(9 re4&ments' can%t discriminate for substitute tenant as

much as original tenant

"ample: MM *meat pro"cer T *vegan restarant rente" to T> *$atopia 6 vegan restarant' if arbitrary refsal allowe", then$atopia can be re0ecte", b3c not protecte" n"er BB(9 why is this? If no arbitrary right of refsal, is it s that reasonable

st" higher than getting original tenant? "ample: MM T *chicken restarant T> as $atopia *vegan restarant

9ns. If no right of arbitrary refsal, then can "iscriminate against original tenant bt not against sbstitte *can be less"iscriminatory' can look at "estrctiveness to commercial aspect to MM.

9ns. St" of reasonability *if high, then totally give T way to leave 6 favor T, MM can&t refse on small reasons *if low, then morelike arbitrary right of refsal, MM can refse for small reasons, re4 goo" faith "ealing for MM

9ns. Cption to pt in lease 6 who yo "i"n&t want to accept *like arbitrary refsal rights9ns. Starting positions:,ontract . reasona"le std t$res$old #created by legis$:> if reasonable st" threshol" low *"ifficlt for MM to refse sbstittion, then msg to MM to create high L st" of reasonableness

*br"en on MM to pt in L to protect them

E if reasonable st" threshol" high *MM can refse base" on many reasons of reasonability, then msg to T to bargain Lally forreasonable st"

"amples: p. J'*b M *%hristian evangelical org, owns bil"ing that ses for h"4trs. T leases an" then sbleases to T> *+lanne" +arenthoo". Mrefses consent on gron"s that it fn"amentally opposes T>&s aims an" activities.

MM has ob0ection to other sbstitte T *what are goo" argments?LL: reasonable to refse abortion center b3c "iff cstomers, liable for riots3violence *econ, lower "onations *econ yet cts

"on&t look at these isses for reasonablenessiddle gro%nd: allow refsal if antithetical to their beliefs *is it never commercially reasonable to "eny consent to a transfer

1solely on the basis of personal taste, convenience or sensibility,2?9ns: if M wol"n&t have lease" to T> to begin with, might have case for reasonable w3hol"ing.

Cts decide what%s best to req of $$s while protecting T%s rights as well consider broader range of factors

In t$e resence of silence !e deal !it$ fo%r ossi"ilities

>. LL need not "e reasona"le *no "ty to accept sb 6 $$ does not have to mitigate 6 if the T cannot pay he is still responsibleeven if the MM "oes not attempt to mitigate. This is the old co''on la! real property rle that no longer e!ists *goo" starting pt, bt no one likes b3c MM br"ene" when T&s falt

E. LL need not "e reasona"le *no "ty to accept sb 6 $$ must mitigate 6 MM may refse arbitrarily, however he mst sbstittefor T if T "efalts. (e mst make reasonable efforts to prevent great "amages *MM in better position to fin" new T that MM willfin" acceptable, MM has respons to be reasonable. MM might prefer arbitrary refsal

. LL '%st "e reasona"le *"ty to accept sb 6 $$ need not mitigate 6 Ts have a right to sbstitte b3c MM "i"n&t create risk soshol" have to pay for mitigating. T oght to bring the reasonable sbstitte if they want to breach the lease. If they "o not thenthe MM will hol" them to the "eal.

JP



J. LL '%st "e reasona"le *"ty to accept sb 6 $$ must mitigate 6 T an" MM both share responsibility to mitigate. Mimitsreasonability *"epen"s on 0ris"' reasonable sbstitte T *might be more br"ensome

Q. Ne! rendition: MM has "ty to accept sb T bt T has no "ty to offer sbs.

• If T has "ty to offer sb, then bJ T can come to ct an" ask that MM mitigate "amages, mst show T&s goo" faith effect to get sb

• -aybe shift in e!ceptions "epen"ing on T&s responsibility *shift presmption nless T n0stifie" in leaving

• T pays for cost of mitigation even tho MM may have responsibility: *remo"eling, making apt. sitable, pay "iff btw what the MM

col" get an" their contracte" rent, T has to pay rent "ring that time as well

'ssue: "eci"ing factor for which to choose: Shorter term leases, less ct procee"ings, flow throgh benefits *less problems with MTleases, MMT similar to prchaserseller sitation in common law, tenant mst be waryN

'ssue: if T leaves an" MM "oesn&t know T ha" aban"one". What&s sffic notice?

• (ave to show intent to see if T aban"one" *EJhr *reasonable notice bJ yo enter nless emergency

• MM "oesn&t have to accept aban"onment

• If MM attempts to mitigate "amages:

o -st treat all available apts Kly

o 9"vertise it obviosly3sing st" means

o MM has br"en to show reasonable effect *"ocment it

o Rental amt: rental vale mst be reasonable

o -st keep trying to mitigate *can&t give p

o ;o e!cses for being too e!pensive *b3c T has to pay for it

• If T "efalts an" rent higher than T&s ol" rent, then MM shol" 0st accept aban"onment, or else T can arge that MM renting on

T&s behalf, an" T get psi"e "iff in rent, an" only with mkt vale "roppe", then hol" T an" T will have to pay rental "iff

• #s MM gets compensation for mitigation thr litigation *if MM "oesn&t litigate, then MM accept aban"onment an" MM leasing

not on T&s behalf. #s MM litigates an" "oesn&t accept aban"onment if rent vale lower

T$e Tenant A$o Defa%lts

Eiction of tenant:

• MM may wish to *i evict T "ring term of lease for nonpayment of rent or for other case or *ii evict the T who hol"s over after

lease e!pires. MM&s reme"ies for evicting "ring an" after lease "iffer *more limite" "ring lease

9. Ter'ination for "reac$ of coenant: at ol" %3M, MM ha" no power to terminate lease if T "i"n&t pay rent' reme"y to se forrent "e' yet now some states give MM power to terminate lease for nonpayment of rent when "e *yet for other covenants,

"oesn&t give MM power to terminate lease an" evict T*> Lease roisions* if in"ep cov rles, then almost all leases contain e!press provisions athori=ing MM to terminate

lease b3c breach of any cov *forfeitre clases*a Notice of defa%lt and ti'e to c%re* where nonpayment of rent is basis of forfeitre, then MM mst notify T an"

give reasonable time to pay. Then MM mst notify T that MM will terminate lease before e!ercising her right toentry.

• 2xam tip: %f << ants to terminate lease t!en loo& at lease terms for co) and t!en if no

forfeitre clases t!en <l can only e)ict for nonpayment of rent and t!en only if proper notice

procedres are gi)en*b Triial defa%lt* regar"less of lang in lease, breach mst be material3sbstantial for forfeitre

*E Aaier* MM may e!pressly3implie"ly waive right to term pon breach *eg. MM accepts rent from T knowing of breach K waiver*a Reliance on ractice of !aier* if MM continally accepts late rent, then might waive right to prompt rental

payments

/. Eiction t$ro%g$ =%dicial rocess* if MM entitle" to evict tenant for breach of covenant or hol"ing over *> %it in e=ect'ent* MM may bring an action in e0ectment to recover possession of premises *rarely broght by MM,

takes a while to get to trial*E %''ary roceedings* where MM can 4ickly recover possession at low cost *action for 1forcible entry an"

"etainer2 or 1nlawfl "etainer2*a Notice to &%it* bJ bringing smmary action, MM mst give T notice to 4it *eg. "ays b3c assme that T

knows he&s being nlawfl*b Iss%es t$at can "e raised* isses in smmary procee"ings are very limite" *MM mst prove that lease has been

terminate", or that she has lawflly e!ercise" right to forfeitre for nonpayment of rent51) Defenses* only to preserve his possession as T or precl"e MM from recovering possession.

JV



52) odern trend* If MM in breach of stattory "ty to repair *or implie" cov of habitability, then cts allowT to se that for no rent. *theory: paying rent is "ep on habitable con"ition of pptyRationale* gives poor tenants better bargaining position to enforce the MM&s repair obligations

53) ,onstit%tionality* state law "enies T right to "efen" on gron" that MM has breache" her "ty to repairokay. (osing isn&t a constittional right.

5c) Not allo!ed for %rose of retaliation

%. elf7$el* if selfhelp isn&t available A MM ses then MM liable for "amages to T an" T&s chattel*> ,o''on la!* permit force to e!pel T *yet no forcible entry*E Reasona"le force er'itted* MM may se reasonable force w3o any ct procee"ing* Peacea"le entry er'itted* ef&n vary *some say changing locks K forcible*J elf7$el not er'itted* some prohibit selfhelp in recovering possession an" re4 Ml to resort to stattory reme"y

an" if not, liable for "amages*Q Lease roision a%t$oriCing self7$el* lease may provi"e that MM is athori=e" to se selfhelp in retaking

possession on T&s "efalt. -ost cts hol" sch a provision vali". 9 minority hol" it voi" b3c pblic policy againstselfhelp

• Bactors for entry not being peacefl: intimi"ating factor *bringing police, previos rltship3con"ct of parties

• Smmary procee"ings: allow e!pe"ite" process, yet other isses have to go thr st" legal means

• Tenant grops: want freely negotiate" lockots for only commercial property' "esire high "amages for inappropriate selfhelp for

MM *yet all costs gets passe" on to Ts

• MM sitate" to have legislative power

LL4s d%ty to not interfere !it$ T4s &%iet en=oy'ent

>. ,oenant of -%iet En=oy'ent* T has right of 4iet en0oyment of premises, w3o interference by MM. *MM&s covenant of 4ieten0oyment, always implie" in every lease

a. Deendant coenant* T&s cov to pay rent was always "ep on MM&s cov of 4iet en0oyment *if MM breachs, then T "oesn&thave to pay rent

". reac$* can be breache" by either actal or constrctive eviction

E. +ct%al Eiction* If T is physically evicte" from entire lease" premiseseither by MM or by someone w3 paramont titlethe T&srental obligations cease, an" T can terminate lease, an" liability for frther rent "ecreases *may college "amages to MM for breachof cov

a. Partial eiction "y LL* if T evicte" from any portion of lease" premises by MM, rent abates entirely ntil possession isrestore". T may stay an" refse to pay rent*> Rationale* rent obligation base" on T&s possession of entire leasehol", an" MM can&t 0st se some part of lan" *so

penali=e MM' other reme"ies are too costly for T *if law only gives T right to terminate lease an" leave, then T may notfin" e4ivalent 4arters 6 "eterrence for M

*E Restate'ent ie!* %3M n0st to MM, so T has to pay partial rent *for part they are possessing". Partial eiction "y ara'o%nt title* T may terminate lease, recover "amages, or receive proportionate rent abatement. If T

remains in possession, remains liable for reasonable rental vale of portion he possesses.51) Disting%is$ artial eiction "y LL* If MM partially evicts T, T may stay in possession an" pay no rent, bt if r" party

evicts, T has to pay in rent if stay in possession. /3c: n"er recor"ing acts: if r" party ha" recor"e", T ha"constrctive3actal notice, an" it&s nfair to penali=e MM for r" party e!ercising paramont rights of which T is aware orwhich MM "oesn&t believe e!ists

. ,onstr%ctie Eiction* when thr falt of MM, sbstantial interference with the T&s se an" en0oyment of lease" premises, so Tcan no longer en0oy the premises as parties contemplate". T can no longer en0oy premises so T may terminate lease, vacate

premises, be e!cse" from frther rent liability. (as to permanent *fre4 of occrrence to see if happens all the time or only attime when prpose of premises is se"a. Deendent ro'ises doctrine eBanded* applies where T is left in possession bt T&s se an" en0oyment is "istrbe".

-ake T&s obligation to pay rent "ep on MM&s performance of her cov of 4iet en0oyment *reme"y of termination of tenancy.W3o reme"y, T col" only se for "amages *costly3inefficient reme"y in many sitations

". Disting%is$ act%al eiction* physical e!plsion3e!clsion from possession *eg. MM change" locks, bar entryc. Ele'ents of constr%ctie eiction

*> s%"stantial interference* with T&s se an" en0oyment *as "istingishe" from possession 6 actal eviction 6 reasonable'cts look at prpose for which premises lease", foreseeability of this type of interference, potential "ration ofinterference, natre an" "egree of harm case", availability of means to abate interference.*a disclos%re rior to lease* if MM shol" tell T of known sbstantial "efects

JX



*b tenant4s ?no!ledge* if T knows of interference bJ taking possession, waive" right*c notice to LL* prior to claiming constrctive eviction, T mst give MM notice to reme"y sitation w3in reasonable

time*E Tenant '%st acate re'ises* T can&t claim constrctive eviction nless3ntil vacates premises *can&t remain in

possession an" either refse to pay rent3receive "amages 6 T takes chance*a declaratory =%dg'ent* T may still be able to stay in possession an" bring e4itable action that MM actions K

constrctive eviction' permits T to know, before vacating premises, whether T&s 0stifie" in vacating*b da'ages after acation* T vacating premises on constrctive eviction terminates lease' "amages: T owes no

frther rent, A owe" "iff btw rent pai" an" reasonable rental vale, cost of getting other resi"ence, loss of profitscase" by MM&s actions, etc.

*c Restate'ent ie!* re0ects that T has to aban"on property before claiming constrctive eviction. Gives T right: *ito terminate, or *ii to stay on an" receive "amages or rent abatement or employ certain selfhelp reme"ies. *ationale+ T shol" receive what T bargaine" for. If T&s only reme"y to vacate, then lack option to get what T bargaine" for, esp for poor tenant *har"

* (a%lt of LL* interference of T&s 4iet en0oyment mst be from act3failre by MM *not by r" party nless party&s actionswith e!press3implie" consent of MM*a acts of LL* MM mst have "ty to act an" have breache" it an" cov of 4iet en0oyment*b acts of ot$er tenants* "epen"s if MM can control behavior of other T an" can be regar"e" at falt in not controlling

it. General rle: MM not responsible for > tenant casing annoyance to another *even if same act "one by MM wol" be constrctive eviction an" MM can legally control other T&s con"ct51) EBcetions* *> MM "ty to not permit nisance *eg. rent to prostittes, *E "ty to control common areas52) odern trend* hol" MM responsible for other T&s acts if MM has legal ability to correct the con"itions an" fails

to "o so. MM in better position than T to prevent

d. ,oenant not to co'ete* cov by MM that he will not compete with3rent to competitor of T is s "eeme" so < Kconstrctive eviction51) Deendant coenant analysis* Why favor noncompetition covenant? oes it create monopoly? /3c, assmption thatall promises of MM reslte" in significant in"cement to making lease . *estatement : all signif promises, e!press an"implie", are "ep.

• T isn&t responsible for non "emise" premises' latent "efects *those the e!istence an" significance of which are not reasonably

apparent to the or"inary prospective tenant not assme" by T

• Illegal lease 6 "efect at time of lease' sbstantial "efect' MM ha" to know or shol" have known abot it. *pt > *a an" *b

together

• I'lied 5eBress) !arranty of $a"ita"ility 6 can stay an" w3hol" rent.

• ey iss%es:

a. Shol" parties be able to contract ot of warranties of habilitability? *MM not liable for nsafe hosing space b. (ow shol" we measre "amages? Thinking: "o yo try to set "amages from perspective of giving incentives to MM not

to be slmlor"s or compensating victim an" can yo have it both ways *less likely that MMs will be slmlor"s an" atsame time, protect in"ivi" T that has been harme"

Problems: p. Q>E'*> T is tenant at will. M cases a nisance that interferes with T&s bsiness on the lease" premises. T vacates, rents e4ivalent space

at a higher rent, an" sbse4ently ses for "amages on a theory of constrctive eviction arising from a breach of the covenant of4iet en0oyment. Ans: overlap of what time of lease it is' MM arge" that constrctive eviction is saying that MM en"s tenancy at will with T. /t cts pisse" at MM an" change" tenancy at will into perio"ic tenancy an" allowe" T&s recovery. Importance of type of tenancy. *notresponsible for what ct will go, bt see that it&ll be an isse is important

*E %n eac! of folloing e"amples - #tenancy of years$ )acates leased premises prior to t!e end of t!e term and stops paying rent* %n sbse( sit by < for npaid rent - asserts defense of constrcti)e e)iction claiming t!at < breac!ed co) of (iet en,oyment**a < fails to control e"cessi)e noise made by neig!bors* %s < responsible>9ns: Oes b3c MM can more rea"ily solve problem. M in better position to reme"y an" the one who chose Ts. 9lso can go frther tosay that T has right to leave if MM "oesn&t "eal with this9ns: ;ot ba" enogh to vacate premises, yet if so, wol" yo allow for lesser breach? Tenancy a"vocacy grops: say, this maycase MM to be overly "ominating an" oppressive even if other T isn&t being noisy, 0st so MM isn&t liable for inaction.5actors: mkts open or close" 6 MM being competitive or not' where yo&re willing to take hit here or another area' if T helplessan" MM can bear responsibility

*b Bilding in !ic! - leases an apt from < !as been t!e site of crim acti)ity* Problem contines e)en t!o < installs deadbolt loc&s onall entrance doors and !ires pri)ate secrity gards*

J



MM: may have more inflence on gov&t parties that will re"ce crime *MM has 0ob of a"vocacy on MM' also "epen"s on inherentrisk *prpose3sitability of premises

*c 1t!er - is gynecologist ; abortions target of ongoing demonstrations* - complained and < does not!ing*

MM: "oes knowing T&s prpose3sitability of premises, then is MM responsible? MM in best position to "eal with it an" shol" haveknown of prpose of premises

I'lied Aarranty of 8a"ita"ility c%rrent la!K

1. Landlord4s D%ty at Incetion of t$e Lease

a. ,o''on La!* no implie" cov by MM that premises are in tenantable con"ition or fit for prposes& inten"e". 1let thelessee beware2. T mst inspect premises bJ he bys.

51) EBcetions*

5a) (%rnis$ed $o%se for s$ort7ter'

5") 8idden 5latent) defects* known by MM an" not easily "iscoverable5c) %ilding %nder constr%ction* lease e!ecte" before bil"ing finishe"

52) Indeendent coenants r%le* even if e!press warranty of sitability or habitability, T mst overcome in"epcovenants rle *where T not e!cse" from performance *paying rent by MM&s breach

". I'lied coenant of $a"ita"ility* yet now cts allow implie" cov of initial habitability an" fitness in leases of rban"wellings, incl"ing apts. Dependant co)enant doctrine: T relieve" of rental obligations when MM breaches. %omparehabitability at inception of lease v. contining cov of habitability

51) /ario%s rationales* *> mo"ern rban resi"ential tenant *"oesn&t have time to inspect an" pt in tenantablecon"ition, *E MM knows more abot "efects than T, * hosing co"es not effectively enforce" *moreeffective hosing co"e enforcement gives T&s right to se %onstrctive eviction not reme"y for hosingshortage, *J b3c hosing shortage, Ts have less bargaining power than MM

5a) ,riticis'* placing "ty on MMs lea"s to increase" rent, or aban"onment by MMs, or less investmentinto new hosing *en" reslt: less hosing for poor, less lowincome hosing reslt in gov&t

provi"ing more hosing for lowincome persons5") ,o''erical leases* applicable to small commercial or office tenant *tren" towar"s sing for comm.

as well52) coe of !arranty* scope hasn&t receive" mch attention

5a) Latent defects only* some cts say MM respon for latent "efects only' "oesn&t mean mch tho if MMresponsible for maintaining premises in tenantable con"ition *reme"ying all "efects: yet if patent"efect, then MM may arge that T waive" it when he "iscovere" it bJ signing lease

5") 8o%sing code* local hosing co"e sets st" of MM&s "ty *sbstantial violation of hosing co"e isviolation of implie" cov of habitability. Restatement: lease" property 1is nsitable for resi"ential prposes if it wol" be nsafe or nhealthy for the tenant to enter on the lease" property an" se it as aresi"ence.2

53) Re'edies for "reac$* s L reme"ies of "amages, restittion, rescission' also se rent for repair3rentw3hol"ing.

59) Aaier "y Tenants* -ay T waive implie" warranty of habitability? -ay be against pblic policy *if nsafeor nsanitary. 9lso it&s to encorage enforcement of the hosing co"e by Ts, T&s may not be able to waiveco"e re4&ments *"on&t permit waiver of a sbstantial breach

5a) +nalogy to contract la!* cts trying to pressre MMs to rehabilitate "wellings *to pgra"e hosingstock

c. tat%tory d%ties* stattes to impose on MM affirmative "ty to pt resi"ential premises in tenantable con"ition prior toleasing them

d. Illegal lease* if MM knows of sbstantial violation of hosing co"e, then if co"e prohibits rental of premises, then MMcan&t enforce cov to pay rent *MM can only se for reasonable rental vale of premises as they e!ist

2. Landlord4s D%ty to Reair +fter Entry "y Tenant*

a. ,o''on la!* no "ty to maintain an" repair premises *when before agricltral ppt&y

51) LL4s coenant to reair* if by agreement, then MM&s cov to repair in"ep to rent payment cov.". I'lied coenant of $a"ita"ility* most cts imply contining cov of habit in rban "wellings. ep cov as well51) Rationale* T bargains for, e!pects to get contining svcs, incl"ing mainten

,o''ercial leases* most likely implie" w3 contining maintenance when office in bil"ing, not entire bil"ing

52) coe of !arranty* breach of implie" warranty5a) 8o%sing code* sbstantial violation of hosing co"e5") (it for $%'an $a"itation*

53) Notice to LL* most cts allow reasonable time to repair *falt st"59) Re'edies for "reac$*

5a) Ter'inate lease* vacate premises, recover "amages *relocation costs, B-@ of lease 6 "iff btw agree"rent an" B-@ rent

QF



5") ,ontin%e lease and recoer da'ages* contine lease A recover "amages *rent re"ction> Pay7for7re'ises7as7is r%le* T only pay for vale he is receiving *as is: agree" rent 6 B-@

of premises as is *yet "oesn&t motivate MM&s to rehabilitateE Loss7of7"argain r%le* give T what he bargaine" for *measring "amages by B-@ if they ha"

been warrante" 6 B-@ as is Da'ages for disco'fort and annoyance* some give emotional "istress if accompanie" by

physical "amages5c) ,ontin%e lease and %se rent to reair* some 0ris" allow T to se some rent to repair *reasonable

amt5d) ,ontin%e lease and !F$old rent* may pt rent into escrow yet wait ntil "efalt eliminate"

1) Disting%is$ retaliatory eiction* if MM evicts T b3c T complains abot violations of hosingco"e

5e) Defense to LL4s rent action* "on&t pay rent *?> Disting%is$ non7rent action* only "efense of eviction is if MM retaliating against T&s acts

5<) Aaier "y tenant* waiver not permitte" b3c primary prpose of implying obligation is to give T power toenforce hosing co"e an" wol" be against pblic policy

5a) URLT+ ie!* sai" can waive if in separate agreement an" spporte" by a"e4 consi"eration *re"ce"rent' bt only for minor repairs, not to cre hosing co"e violations

5") Restate'ent ie!* may "ecrease MM&s obligations nless agreement is 1nconscionable or signifagainst pblic policy2

c. tat%tory d%ties of LL* maintain resi"ential premises in habitable con"ition51) URLT+* fit3habitable con"ition *no "istinction btw patent3latent con"itions

5a) Reair and ded%ct

5") Essential serices52) Ne! Yor? stat%tes

5a) +"ate'ent of rent after @ 'ont$s4 iolation

5") Rent !F$olding

5c) Receiers$i

d. Retaliatory eiction* If T reports MM for violation of hosing co"e, an" MM might try to evict T or refse to renew leaseat en" of term. against eviction, even in smmary eviction procee"ings

51) Interference !it$ stat%tory rig$t* b3c then Ts won&t report MMs *essential for effectiveness of hosingco"es

52) Interference !it$ =%dicially created rig$t* e!ten" to where T complains to MM abot violations of MM&sresponsibility

53) Proof of 'otie* br"en of proof on T5a) Retaliation "y rent increase* even if MM tries to be in"irectly by increasing rent

59) Tenant in defa%lt* can&t claim if in "efalt of rental payments5<) A$en LL can eict* if MM&s primary motive isn&t retaliatory then can evict

5a) LL stos %tilities* still have to pay tility bills5@) tate stat%tes* some states prohibit retaliatory acts an" some e!ten" that "efense to commercial tenancies

oes cov of e!tra amenities warrante" not kept yet still able to live in apt e!ten" to IW(?9ns: yes b3c rent base" on access of e!tra amenities, so can w3hol" rent an" makes IW( applicable9ns: no, not covere" n"er IW( *sitable premises, b3c other reme"ies *L breach 6 yet nlikely to bring lawsit for this' if T wants

certain things covere", then shol" have concerns co"ifie" p. QJE *J *a)anitorial staff goes on strike an" garbage piling p' cts allow for pnitive "amages, "oes MM breach responsibility?4estion over city strikers v. own employees' MM responsiveness v. "egree of problem

re0ecte": if MM "i"n&t "o it, MM&s not responsibleaccepte": shol" be incl"e" yet MM shol"n&t be limitless: however, "epen"s on whether MM has control of sitation*pro!imity' reasonableness st" *MM has other avenes to a""ress this an" best position to a""ress overall problem

9ppropriate measre of "amages?> Bair market vale *B-@ as warrante"

B-@ as "efective "amagesE 9gree" rent

B-@ as "efective "amages B-@ as warrante"

agree" rent: "amagesJ +ercent "imintion of vale

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Isse of atonomy: shol" people be able to choose whether hosing important over having new shoes?

p. QJ *J *b MM wrong in not keeping promise, yet if not with fit for hman habitable hosing for people, an" therefore "oesn&t falln"er IW(. IW( was ra"ical when intro"ce", an" resistance to e!ten" it to commercial ppt&y.

• %oncern with IW that are openen"e" *implie", fights with tren" to state something e!plicitly in contract, give win"fall to T who

gets benefit of implication

• yet other option is cov of 4iet en0oyment: b3c can stay *most likely with commercial ppt&y'

• some 0ris have Implie" Warranty of Sitability *IWS an" w3hol"ing rent for nsitable ppt&y *with commercial property

• cov of 4iet en0oyment *can be se" in circm not with constrctive eviction

• If it&s really ba"then can se constrctive eviction. Bor lesser breaches, can se for breaches in cov of 4iet en0oyment.• Some 0ri"s: implie" cov of 4iet en0oyment, an" then se same reme"y as 1IW(2 or 1IWS2.

• Cptions: %onstrctive eviction, se for "amages, IW(

"imintion of vale: for tenant *gravitating towar"s that "irection

Reasons why 1agree" rent2 as "efective higher then B-@ as warrante":*near bs rote, mltiple occpancy, spply"eman" problem.

trying to solve social problems *"ilapi"ate" hosing, so any one case "oesn&t give enogh backgron" for cts to solve problemargment that MM may maniplate initial rent so of "imintion of vale *kick back "oesn&t hrt MMsif all yo&re concerne" abot is preventing gaging then okay bt if yo want to apply to e!pansively for hosing, then nee" to

accont for fair mkt vale *lots of evi"ence re4ire", so shol" go to legislatre for problem solvingB-@ as "efective an" agree" rent take into accont other factors than 0st "efectiveness 6 yet best bet thogh.

vale of 1agree" rent2 *b3c fewer problematic "ata points 6 how mch most wol" pay for this "mp an" how mch yo pai" forthis "mp as oppose" to B-@ has two "ata points **> as warrante" an" *E for this "mp

QE



Recording +cts

(o%r 'et$ods of title ass%rance are %sed in t$e U*

1& )rantor%s express warranties of title contained in deed M ol"est metho", inherite" from the $nglish!& #ystem of the recording land titles M this involves an actal search of pblic recor"s in the conty&s

recor"er&s office. $ach state has some kin" of recor"ing system.=& Title registration 0Torrens system M this is available in only a few states an" registers title to lan",

rather than evi"ence of title *as w3 recor"ing stattes.@& Title insurance M this metho" is increasing in se an" insres goo" title, eg. insres the accracy of the

recor"s by agreeing to "efen" the recor" title if litigate".

(actors to deter'ine t$e rig$ts of t$e arties in t$is sit%ation0 consider*

>. The language of the recor"ing act *race, notice, racenotice or registration statte.E. Whether any party has bona fi"e prchaser stats *i.e., a purchaser or mortgagee who has no actal,

recor", or in4iry notice at the time he gave consideration.. The effect of any unrecorded or unregistered instrments, any errors in recor"ing or registration, an"

who bears the costs of those errors *grantor, grantee, title insrer.

+. Recording yste'

1. ,o''on La! R%le Prior in Ti'e* now recor"ing act to protect bona fi"e prchasers of lan" fromsecret nrecor"e" claims. +reviosly, it was prior in time prevailing over one sbse4 in time *b3c if Calrea"y conveye" lan" to 9, then nothing left to convey to /. Then prchasing lan" is risky 6 b3c / hasno way of "iscovering C9 conveyance.

a& EBcetion in e&%ity* if prior interest was equitable, an" therefore w3in 0ris" of e4ity cort, e4itywol" not enforce it against a sbse4 prchaser of a legal interest who "i" not know of priore4itable interest an" pai" valable consi"eration. *I think this means that if C conveye" to 9 an"then to /, then 9 wol" get the valable consi"eration that / gave to C, b3c 9&s the legitimateowner.

2. Recording acts In eneral* Oet this encorages fra" by grantor an" impose" losses on innocentsbse4 grantees. So state" recor"ation: to give notice to the worl". *ecording necessary only if morethan one grantee contesting title, not to vali"ate "ee" btw grantor an" grantee.

3. ec$anics of Recording*

a& (iling coy* grantee gives "ee" to recor"er who stamps time an" then makes copy an" recor"s itan" original "ee" given back to grantee.

b& IndeBing* entering notation in 1in"e! book2, showing in which "ee" book the "ee" can be fon"repro"ce" in fll. *like ewey "ecimal system. #s grantorgrantee in"e!es, not tract in"e!es.>. rantor and grantee indeBes* separate in"e! volmes for grantors3grantees, enabling title

searcher to locate instrment by searching n"er either grantor&s name or grantee&s name*chronologically H name of grantors& name alphabetically.

E. Tract indeB* in rban areas where lan" platte" an" broken "own into blocks3lots, entries n"er block3lot nmber. Simplifies title searches b3c entries "eal with specific parcel of lan".

c& Title searc$* If C contracts to sell /lackacre to 9, then prior to closing, title search ma"e to assre9 that C owns /lackacre an" to see if any encmbrances on C&s title.1. Tract indeB searc$* if tract in"e!, 0st look at block3lot "escribing /lackacre *see prior

recor"e" instrments conveying, mortgaging, or otherwise "ealing w3 /lackacre.2. rantor7grantee indeB searc$* first look at grantee in"e! to fin" from whom each prev owner

took title an" then go to grantor in"e! to ascertain what transfers each owner ma"e "ring histenre. C conveys to S.

5a) rantee indeB* S goes to grantee in"e!, n"er C an" then goes backwar"s

Q



5") rantor indeB* having "iscovere" previos owners of /lackacre, S trns to grantorin"e! to "etermine ehther any of these prev owners conveye" any interest in /lackacre bJ conveying the fee simple to the ne!t owner. In grantor in"e!, S looks n"er each ofthe owner&s names from the "ay title came into the owner ntil the "ay of recor"ation ofa "ee" from the owner. *In some 0ris", S will have to search a longer perio" of timen"er each owner

5c) Deat$ of o!ner* title can also pass by will or intestacy. 9ssming / "ie" A left/lackacre to % an" then % "ie" an" left to *recor"e" in testators& or "ece"ents&

in"e!. , who took title from % by intestate sccession has no recor"able "oc signe" by % *to perfect title, %&s heir, , will file affi"avit of heirship, prepare" by saying is sole heir. (owever, if is lying an" EH heirs, then affi"avit can&t a"versely affectanother heir who is not "isclose" thereon. /r"en is on sbse4 prchaser to make srethat he has a "ee" from all persons who are %&s heirs *any heir who "oes not sign the"ee" retains his3her interest.

3. Negligence in searc$* title searcher is liable for neglig in search.9. Tyes of Recording +cts*

a& JRace stat%tes* who records first , notice is irrelevant.1. Rationale* evi" of notice may be nreliable. So title searcher shol" 0st rely on recor"s yet

ine4itable to have person with notice of prior claim to prevail *so few 0ris" have this

b& JNotice stat%tes* cts thoght nfair3fra" to allow race 0ri", so cts say race 0ris" to apply to asbse4 prchaser for valable consi"eration w3o notice. #n"er mo"ern notice 0ris", sbse4 bonafi"e prchaser wins n"er notice statte if he has no actual or constructive notice of prior claim attime of conveyance. 19 conveyance shall not be vali" against any sbse4 prchaser for vale, w3onotice thereof, nless the conveyance is recor"e".2 *QF states have this 0ris" regardless ofwhether subseq purchaser records at all .

c& JRace7notice stat%tes* protects only sbse4 prchasers without notice of prior claim only if herecords before the prior grantee. 19 conveyance shall not be vali" against any sbse4 prchaser forvale w3o notice thereof, whose conveyance is first recor"e". In QF of states.

<. Effect of Recordation

a& A$at recordation does* proper recor"ation gives grantee protection of the recor"ing system.

9fter recor"ation, all persons who thereafter take an interest in the lan" have constrctive notice ofe!istence an" contents of recor"e" instrment, an" no sbse4 prchase w3o notice can arise. 9lso, ina racenotice 0ris", b3c grantee is not protecte" against prior nrecor"e" claims ntil he recor"s,recor"ation protects the grantee from prior nrecor"e" claims as well as eliminates the possibility ofa sbse4 bona fi"e prchaser.

b& A$at recordation does not do*

1. /alidate inalid deed* no necessary for a vali" conveyance. Recor"ation raises a rebttable presmption that the instrment has been vali"ly "elivere" an" that it is athentic, bt if forge"or not "elivere", recor"ation will not vali"ate it.

5a) Deed fra%d%lently roc%red* if "ee" from fra", "ee" is voi" or voi"able btwgrantorgrantee. If grantee conveys to a bona fi"e prchaser, the bfp prevails over the

grantor if the grantor was sffic neglig to create an estoppel.2. Protect against interests arising "y oeration of la!* statte applies only to unrecorded

conveyances. *not for "ower rights, prescriptive3implie" easements, title by 9+c& Effect of fail%re to record

1. Prior7in7ti'e r%le* common rle, 1prior in time, prior in effect2.2. Po!er to defeat left in grantor* can "efeat "ee" by e!ecting a sbse4 "ee" in favor of a bfp

*logical3sbse4 "ee" in favor of a bfp.3. %it against do%"le7dealing grantor* if person loses lan" b3c fails to recor", person can se

grantor who conveye" twice an" recover n"er theory of n0st enrichment the amt that thegrantor receive" from sbse4 prchaser.

QJ



@. Re&%ire'ents of Recordation

a& A$at can "e recorded* "ee", mortgage, L to convey, etc, also lis pen"ens *notice of pen"ingaction can be recor"e" *to give constrctive notice

b& +c?no!ledg'ents* "ee" mst be notari=e". *offers protection against forgery. Some also nee"witnessing.

c& A$at constit%tes Jrecordation* fact that an instrment has been copie" an" entere" in therecor"er&s office "oes not necessarily mean that the instrment has been 1recor"e".2 Instrmentmst be entere" in the recor"er&s books in a manner complying w3 the applicable statte or 0"icial

"ecisions.>. (ail%re to indeB* clerk fails to in"e! instrment properly. Cne view protects grantee, other

protects sbse4 bfp b3c "i"n&t have sffic constrctive notice to a sbse4 prchaser. En" view better b3c practical that if instrment not properly file" an" in"e!e", then no reasonable way tolocate it, an" grantee can check if properly recor"e" *col" prevent the loss.

5") IndeBing %nder 'isselled na'e* prev, names that son" similar gave constrctivenotice, bt now "iff names are seen as not giving constrctive notice

51) Di'in%ties* some lesspoplate" states say that i"ing party by "imintivename *1/ob2 instea" of 1Robert2 gives constrctive notice. -ight also have tolook at erroneos mi""le initial.

5c) ot$er 8%""ard cla%ses* provision in a "ee" that attempts to sweep w3in other

parcels not specifically "escribe". 1an" all other lan"s I own in (enry %ontry.2 s not vali" against sbse4 prchasers of n"escribe" lan" b3c conveyance onlyin"e!e" n"er "escribe" lan" *so n"e br"en re4&" by title searcher to rea" allconveyances of other lots by an owner of sb0 lot to see whether conveyances affectsb0 lot.

2. Recording %nac?no!ledged instr%'ent

*a No ac?no!ledg'ent* no constrctive notice to sbse4 prchasers *nlessactal3in4iry notice, then sbse4 prchaser prevails

*b Defectie ac?no!ledg'ent* if recor"e" instrment "efective bt not apparent on facethen better view that recor"ation gives constrctive notice. Some "on&t allowconstrctive notice. So in racenotice statte, no later instrument in chain can be

"eeme" properly recor"e" so as to "efeat a prior nrecor"e" claim.51) ,riticis'* hi""en "efect in an acknowle"gment shol" not make "ee"

nreliable. Bor recor"ing system to work efficiently, prchasers mst be able torely on what appears to be a perfectly recor"e" "oc.

:. A$o is Protected "y Recording +cts*

a& In general* only /B+ protecte" n"er notice an" racenotice 0ris". To be /B+, person mst: *i bea purchaser *or mortagee, or cre"itor if the statte so allows, *ii who takes w<o notice *incl"ingactal, in4iry, or recor" notice of prior instrment at the time of the conveyance, an" *iii gives avaluable consideration. %3M: first in time prevails' race 0ris": notice irrevelant, bt race state protects only sbse4 prchasers for a valable consi"eration who win the race to recor".

b& P%rc$asers

>. P%rc$asers and 'ortgagees* mortgagees s protecte" b3c have secrity interest in property ine!change for vale.

0a J$elter r%le* person who takes from /B+ will prevail over any interest over which the/B+ wol" have prevaile". This is tre even where sch person has actal knowle"ge of prior nrecor"e" interest.

EB. C 9, then C / */B+, / recor"s, an" then / %. If / prevails over 9, then %

also prevails over 9 *even if % knows abot 9&s interest.*> Rationale* if the rle was otherwise, a /B+ wol" not receive fll protection of

the recor"ing statte. Transferee from /B+ is protecte", whether or not meritos,

QQ



in or"er to give /B+ his e!pectations arising from his reliance on the recor"s *for/B+&s benefit.

E. Donees* s "onees "on&t fall n"er protection of recor"ing system b3c they "on&t give vale*consi"ere" nfair to take property away from 9 an" give it to / if / "oes not give consi"erationfor property. Oet hel" that recor"ing statte is broa"ly wor"e" to incl"e 1any class of personsw3 any kin" of rights,2 "onees are entitle" to the protection of the recor"ing system. #nlessstate" otherwise, recor"ing acts generally "on&t protect "onees. 9n" btw "onees, s se %3Mrle *1prior in time2 to facts, not recor"ing statte.

. ,reditors* recor"ing acts vary consi"erably.0a ,reditors not rotected* if not protecte", then can only claim protection if prchase

"ebtorowner&s interest at a 0"icial sale following an action to enforce the "ebt.0b +ct eBtends to Jcreditors or Jall ersons* to all yet since general cre"itors "on&t rely

on recor" when e!ten"ing cre"it, aren&t protecte". Cnly incl"e 0"gment or liencre"itors *protects only against prior interests arising n"er instrments capable of beingrecor"e". -e didn%t go over this&

0c P%rc$aser at eBec%tion sale* prchaser at a cre"itor&s e!ection sale who "oes not havenotice of prior nrecor"e" instrment takes free of any claim n"er the instrment. 9 0"gment cre"itor has shelter *if no recor" at time of sale.

c& Ait$o%t notice* Bor notice, racenotice 0ris, sbse4 prchaser nee"s to be w3o notice *no actal,

recor", or in4iry notice of prior claim at time he pai" consi"eration an" receive" his interest in thelan".>. +ct%al notice* actally knows of prior instrment *if have, not /B+.E. Record notice* if instrment properly recor"e", then any sbse4 prchaser has recor" notice

*1constrctive notice2. In&%iry notice* sometimes, prchaser re4&" by law to make reasonable in4iries *an" charge"

with notice for whatever the in4iry wol" reveal, even tho never ma"e in4iry. Some states*-9 only have actal an" constrctive3recor" notice.

*a In&%iry for &%itclai' deed* some re4 *b3c it&s a conveyance of everything someonehas, bt "oesn&t claim that they vali"ly have everything, yet ma0ority of states "on&t re4.

*b In&%iry fro' ossession* oes / have to check if crrent possessor has possible claim

for /lackacre when / is prchasing /lackacre?*> a=ority ie!* /, sbse4 prchaser, is charge" with knowle"ge of in4iry notice

by inspecting property*E inority ie!s* *> actal notice, *E / only re4&" to make in4iry notice if /

has actal notice of 9&s possession, * if possessor&s present possession consistentwith recor" title, then no in4iry notice re4ire" *if 9 6 possessor has life estatean" 9 A / fighting abot ftre possessory interest

*c In&%iry fro' neig$"or$ood* "octrine of implie" reciprocal negative easements*negative restriction on se may be impose" by implication on a lot in a sb"ivision, eventho "ee" contains no restrictions an" only way to fin" ot is by looking other "ee"s inneighborhoo". *scheme from which a restriction will be implie" on the prchaser&s lot.

7Sanborn v. -cMean8*" In&%iry into %nrecorded instr%'ents* if recor"e" instrment refers to nrecor"e"

instrment, then prchaser has obligation ot make in4iry into contents of instrments,*yet -9 only re4ires actal notice, so this "oesn&t apply

d& /al%a"le consideration* more than nominal vale yet "oesn&t have to be mkt vale of property, notfrom 1love an" affection2.EBa' ti* prchaser is protecte" by a recor"ing statte only from the time consideration is paid

*first consi"eration.

QP



>. Disting%is$ co''on la!* try to "istingish btw "onee *not protecte" an" prchaser*protecte", an" ths consi"eration mst be sbstantial monetary vale so that it&s e4itable to"eprive another person of lan".

E. +ntecedent de"ts* person who receives "ee"3mortgage as secrity for a pree!isting "ebt has notgiven valable consi"eration at time the "ee"3mortgage is e!ecte". +erson not at that time /B+for vale.

*a ,reditors gie ne! consideration* yet if cre"itor gives new valable consi"eration *sin form of worsening his legal positionlike giving someone more time to pay loan,

then gives valable consi"eration an" so prevails over sbse4 prchasers.. Partial ay'ents* if prchaser only ha" pai" part of the prchase price, then cts only protect

prchaser only to the e!tent of payment ma"e *either give sbse4 prchaser a lien on lan" foramt pai" or give prior grantee lien to the e!tent that balance owe".

6. ,$ain of Title Pro"le's* even if recor"e" an" in"e!e", sometimes instrment not recor"e" so givenotice to sbse4 prchasers *not in chain of title. +roblem only arises with grantor3grantee in"e!es.a& ,$ain of title defined* prchaser charge" with notice of those conveyances of property by grantor

recorded after the grantor acquired the property from his predecessor in title and recorded beforea deed is recorded conveying title from that grantor to another&>. EBtended c$ain* some 0ris"s 1chain of title2 is "efine" to incl"e, in a""ition to the above

conveyances, other conveyances *from grantor to present "ate for any sbse4 conveyances.

E. JAild deeds* recor"e" "ee" to the property which is not recor"e" w3in the chain of title./. rantor not connected to c$ain of title* if "ee" entere" on recor"s has grantor nconnecte" to the

chain of title, sch a "ee" is not recor"e" w3in the chain an" "oes not give constrctive notice.%. Deeds recorded "efore grantor o"tained title estoel "y deed* looking at grantor prior to "ate title

came into grantor to see if the grantor gave an earlier "ee" to property to which the "octrine of estoppel by "ee" applies *can recor" "ee" w3o having title an" then recor" title.

EBa'le* C owns /lackacre. 9 / */ recor"s, C 9 *9 recor"s, 9 % *has no notice of

9/ b3c recor"e" before 9 recor"s. Who prevails?

>. a=ority li'ited searc$ re&%ired* % prevails over / b3c 9 / isn&t in chain of title'

Rationale: wol" pt e!cessive br"en on title searcher to re4 search of in"e! n"er eachgrantor&s name prior tot "ate the grantor ac4ire" title.

E. inority eBtended searc$ re&%ired* / prevails over %. Rationale: n"er "octrine ofestoppel by "ee", if grantor who "oes not have title later ac4 it, it passes by operation of lawimme"iately to grantee. So when 9 ac4s lan", it&s alrea"y with /, so 9 has nothing to transfer to%. So then % mst search title prior to time each grantor ac4&" title to ascertain whether anestoppel applies against the grantor.

a& Deeds recorded late* $!ample: C 9 *"oesn&t recor"' C / *"onee, who recor"s, bt "oesn&t

prevail over 9, 9 recor"s, / % *who has no actal notice of 9&s "ee". % recor"s. Who prevails?

>. Li'ited searc$ re&%ired* In most states, % prevails over 9. Rationale: If 9 prevails, titlesearcher wol" have to look in in"e!es n"er the name of each grantor in the chain of title to present "ate *not 0st the "ate of the first recor"e" "ee" from each grantor to see if there was a"ee" e!ecte" before the first recor"e" "ee" bt recor"e" later. *e!cessive br"en on recor"er.

E. EBtended searc$ re&%ired* minority of states *%9 an" ;O, 9&s "ee" gives notice to sbse4 prchasers, althogh recor"e" after /&s "ee" *title searcher mst search for all grantors to present"ate n"er the name of each person who ever owne" the property to pick p "ee"s recor"e" late.*costly

b& Deeds fro' co''on grantor of ad=acent lots* oes prchaser have to look at other lots fromgrantor who owne" a big section with many lots for constrctive notice for easements3covenants?%ts split: some say br"en of title search wol" be too mch, *"ee"s not in prchaser&s chain of title"on&t cont while other say / shol" rea" all "ee"s from common grantor an" has constrctivenotice.

QV



2. Defects in t$e Recording yste'

a& ,riticis's*

1. P%"lic records contain inco'lete infor'ation* even with goo" recor" title, person can be"efeate" as reslt of a "efect of fact3law not ascertainable from recor"e" "oc *forge" "ee", "ee"with falty acknowle"gment by notary pblic, 9+ claim

2. P%"lic records are inefficiently organiCed* grantorgrantee in"e! ol", tract in"e! better.3. EBense* costly to get title searcher for every time property sol".

b& Re'edies*

>. Title standards* a"opte" by the local3state bar association *provi"e that specific kin"s of"efects shol"n&t be challenge".

E. ,%ratie acts* short SoM to make something properly recor"e" if it&s been recor"e" for >Fyears.

. Tract indeB* solves chain of title bt not in4iry notice, an" whether instrment effectivelyrecor"e" an" in"e!e"

J. ar?eta"le title acts* limit recor" searcher to specifie" nmber of years *s Fyrs. #n"erFyr marketable title act, if a goo" recor" chain of title is fon" base" on a 1root of title2 morethan F yrs ol", any claims arising prior to the root of title *with some e!ceptions are nllifie".9ll interests create" prior to F yrs are voi".

*a Root of title %dated* root title may change as years go by.

*b Pre7root interests* preroot interest is vali" if it is referre" in the root of title or in a postroot instrment *if >PV "ee" refers to >EX easement in easement is vali".*> Rerecording* preroot interests can be preserve" by being rerecor"e" w3in the F

year perio".*E EBcetions* pblic easements, observable easements, tility easements, restrictive

covenants, an" mineral interests *so impair seflness of marketable title act*c Possession* n"er most of the marketable title acts, rights of the possessor are not

barre". *So prchaser shol" make a physical inspection of the lan".*" ,onstit%tionality* b3c social seflness otweighs impairment of ol" private rights *like

SoM, barring enforcement of a right nless the right is rerecor"e" w3in perio" of search*> Rerecording re&%ire'ent* statte provi"ing that a mineral interest that has not been

se" for EF years is e!tingishe" nless the owner rerecor"s the interest w3in E yearshas been hel" vali" by S%t.

RE,ORDIN +,T

8int for test: Write timeline *worth yor time, write in shorthan"

Recordation /al%e* in case someone conveys lan" more than once1&ay if isolated commnity #li&e C!inese commnity$

1) ,onstr%ctie notice* shows chain of title an" present recor" owner as oppose to transactional owner.oesn&t protect against 9+ claim

2) Reository* saves yor recor" in case yo lose yors

3) (orces a !riting* forces yo to clarify key items *"etails: srveying lan", grantor3grantee A re4snotary

9) Irreoca"ility* can&t take back an" toy with people *for grantor mostly

Derric? case 5$and7o%t): !en is somet!ing properly recorded>

RE,ORD+TION

• serio%s conse&%ences: important in n"erlying vali"ity of transaction itself

• 'ain %rose: make transaction irrevocability as oppose to constrctive notice

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E $li=abeth Taylor *owns Whiteacre, gives mortgage to %arol /rnett as 1$li=abeth Taylor Bisher2 an" thenlater conveys to 9"am San"ler n"er 1$li=abeth Taylor2. San"ler ha" no actal notice of /rnett&smortgage. What abot if it were TaylorBisher?

9ns: /rnett shol" have recor"e" it n"er Taylor an" TaylorBisher. /r"en on firstintime grantee *br"enthat goes beyon" paying money an" getting "ee"br"en to monitor property an" recor"ation "ample: C 9 an" then C /. 9 %, an" then % recor"s. % "oesn&t know abot /. % shol" have re

recor"e" if name "ifferent.

%sse: *mortgage interest• When are prchaser: when yo pay off mortgage or when "eal is ma"e? If yo&re not prchaser ntil all

"ebt is pai", then yo can&t avail yorself against En"ary prchaser.

• onees are not prchasers, can&t avail themselves n"er the Recor"ing 9ct

• Donee: If firstintime an" recor", then protecte", yet if alrea"y firstintime prchaser an" "onee gets after

that, then "onee not protecte" n"er Recor"ing 9ct b3c not consi"ere" prchaser.

"ample: C 9, / wants C&s lan" an" will forgive C&s "ebt incrementally on a yearly installment basis?

When is / a prchaser? epen"s on 0ris" *look above in Gilberts notes

"ample: O + 5no record0 doesn4t roide constr%ctie notice)0 O 5need to ?no! if al%a"leconsideration0 good fait$0 notice0 recorded0 !$at =%risd). A$o reailsK

> In race 0ris", valable consi"eration A recor"e".E In notice 0ris", valable consi"eration A notice In racenotice 0ris", valable consi"eration, goo" faith, notice, recor"

+ records0 t$en records.

> In race 0ris" A racenotice 0ris", 9 wins.E In notice 0ris", / wins b3c last goo" faith prchaser.

T$en + records and + , 5aid M and no notice). records. , records.

> In race 0ris", 9 prevails an" then %.E In notice, % is protecte" b3c last GB+.

In racenotice 0ris", % wins over shelter rle• $elter r%le: % shol" be entitle" to "eal with someone who has "one everything correctly.

9lso, even thogh % may have notice of /, 9 shol" be allowe" to captre what she got fromrecor"ing an" giving notice in racenotice 0ris".

"ample: O + 5no record)0 O 5no record)0 + records.

Scenario 3+ , 5al%a"le consideration0 no notice of 0 didn4t record). records. , records.

> In race 0ris", 9 an" then % prevails *chain of titleE In notice 0ris", % prevails b3c last GB+ an" isn&t re4&" to recor" first.

In racenotice 0ris", % prevails b3c 9 recor"e" before 9 so 9 alrea"y knocke" / ot, an" then 9 sol"to %.

Scenario 2+ , 5al%a"le consideration0 notice0 didn4t record). records0 , records.

> In race 0ris", 9 an" then % prevails *chain of titleE In notice 0ris", / prevails since % has notice so can&t se recor"ing act *not GB+ In racenotice 0ris", % prevails b3c % sheltere" by 9&s GB+. Shelter rle "esigne" to allow 9 to

profit from property *b3c 9 "i" everything correct, even if % isn&t a GB+.

T!o tyes of cases in Race7Notice %risd

PF



Case 1neO + 5no record) O 5good fait$ %rc$aser0 defectie ac?no!ledg'ent)0

, 5good fait$ %rc$aser0 Jrecord)

9ns. %ts say that if prior "efective acknowle"gment, then / an" % can&t avail to recor"ing act *so 9 getsCase -oO + 5records0 defectie ac?no!ledg'ent)0 O 5(P)

9ns. Birst in time person has "efective acknowle"gment yet wol" take a lot to get 9 off ownership b3c C haslegit claim to property. Whether / ha" *constrctive notice of 9 "epen"s on 0ris" *if 0ris" re4s that "oc has

to be goo" to give constrctive notice. Isse of: is it actal or constrctive notice as re4&ment *b3c with"efective acknowle"gment, will have actal notice. Oet nfair to hol" people respons for things they wol"n&teven know abot.

p. PP $!ample VC 9 *no recor", 9 / *recor"s with 9/ "ee"

C % *recor"s % isn&t going to see 9/ transaction b3c not attache" to lan" C has.

*ecords K elim possibility of sbse4 goo"faith prchaser b3c yo have to recor" entire chain of title. So for /to recor", have to recor" C 9 an" 9 /, so % has constrctive notice.

p. VFQ, *E*a'+ 5no record)0 O + 5no record)0 , 5recordsdidn4t co'letely c$ain of title)0 + D

5records D is s$o!n t$e deed fro' O to +)0 O E0 !$o records

> race 0ris": $ gets *recor"s from C firstE notice 0ris": C$ *last GB+

racenotice 0ris": $ b3c last GB+ who recor"e"

Estoel fro' deed: commit something yo "on&t have yet *+ coneys !$at O !ill gie to + "efore +

receied + , law s protects people who only see chain of title *"on&t re4 people to look otsi"e chain of

title 6 too br"ensome1ld rle: If O + in 1F>3Q and t$en + in 11F>20 t$en if + ,, % responsible to go back in time to look

for 9 as grantor before C 9. Ne rle* O + in 1F>30 t$en + , t$en , only $as to loo? % to 1F>3. /etter for prchaser.

$elter R%le: for only racenotice 0ris"ictions.$!ample: O + 5no record)0 O 5no notice)0 , 5notice ?no!s of +)Q

% is still consi"ere" last GB+ even tho /B+ in or"er to protect / *GB+$!ample: O + 5no record)0 O 5notice)0 , 5notice)

/ an" % "on&t get anything b3c both /B+s.-ips: keep track of who is tracking with whom. "am: keeping this "epth of transaction *"on&t have to follow throgh .ssmption: 9ssme that yo&re in a 0ris" with a shelter rle

b. O + 5no record)0 O 5notice of O + and does not record)0 O , 5doesn4t record)0 D

5doesn4t record and sees deed of O )

+ records0 records0 D records

> race 0ris": 9E notice 0ris": n"er shelter rle *last GB+ racenotice 0ris": have to lock "own by recor"ation so 9 has lan" *9 K first GBp who locke" it

"own

P>



If after D records0 + E !$o records.

> race 0ris": $E notice 0ris":

• ini'al searc$: $ *b3c last GB+ an" complete chain of title If look at minimal search

*only look to see C9 an" then stop, an" then look for 9 anyone else.

• EBtensie searc$: $ will see that C conveye" to 9 an" /, an" then / so $ has

constrctive notice of C to 9 an" /

(9@$ TC C T(IS STIMMN 9RG( G9RGN%illette . Daly Dry Aall0 Inc., S%t of -ass, >VQ, p. P'

C *plan 3 Z ^

9, restricte" by onefamily resi"ential ^/, plan, no restrictions ^

Z %

Hypo 3: $ven if &s "ee" has no mention of plan, can fin" throgh shot p from / C

Hypo 2: /efore anything else took place, then restriction to 9 is 1all retaine" lan" is restricte"2. Then yor lan"is restraine" by that point *har" if QF "ee"s ot, cts re4ire yo to fin" "ee" QF to fin" restriction in QFth "ee"7big br"en for byer8 Hypo =: Re4ire searcher *>FF lots with willy nilly plans, no reference to lots becoming similarly restricte".(ol" yo to responsibility of looking at all lots "ee" an" it&s restrictions, shol" be able to tell from patterns thatthere was plan an" how piece of property matches p with plan. (#G$ R$S+C;SI/IMITO 6 -I;CRITOopinion, b3c paying money thinking they are getting nrestricte" "ee".

Who is to accont to lost of property to ? *b3c pai" more for nrestricte" lan". wol" have to pay for loss*probably can&t se title searcher as well.

PE



,$ater* Ease'ents and ,oenants

EBa' 8int: when "iagramming, when looking at particlar "ispte, have to make sre yo know who is br"en3benefit party in actal "ispte yo&re "ealing with.

-ip: BIG#R$ C#T W(C IS S#I;G W(C *WIT( -#T#9M /$;$BIT/#R$;, /$%C-$SI-+CRT9;T TC #;$RST9; W($R$ /#R$; IS I; M9W S#IT

> $nter pon /&s lan" *easementsE $nter pon /&s lan" an" remove something attache" to the lan" *profits a pre"re $nforce a restriction on the se of /&s lan" *covenantJ Re4ire / to perform some act on /&s lan"Q Re4ire / to pay money for the pkeep of specifie" facilities *e4itable servit"e

+. Ease'ents

• right to enter someone else&s lan"

• Irrevocable3in"efinite v. revocable licenses

erient tene'ent estate: br"ene" *9Do'inant tene'ent estate: benefite" */

Ease'ent a%rtenant: if easements benefits owner *"ominant tenement in the se of another tract of lan",remain on lan" regar"less of who owns tenements *easy to by ot /&s easement if yo choose 6 sinceconnecte" to lan" of "ominant tenement 6 person who benefits, right as owner, occpier of lan"Ease'ent in gross: limite" b3c not connecte" to lan", bt 0st gives someone right to se servient lan" *eg.lan"owner, resi"ent, fire "epartments, not from virte of owning lan" bt having bsiness allows them to comeon property irrespective of owning lan"

tat%te of (ra%d: if conveying interest *over DQFF, nee" to be in writing, b3c yo&re taking away a right toe!cl"e someone, "on&t want to give this lightly *thr speclative oral "iscssion, eBcetion* e4itableservit"es *b3c 0st not fair, implie" easements, prescriptive easements

aintenance: payment for repairs *who pays for the entire repair H spell ot of conse4 "amages of someoneelse&s "oing something negligently, what e!penses will be base" on.Defa%lt r%le 5do'inant o!ner): If yo "on&t spell ot, "efalt rles: easement owner has to maintaineasement. *starting pointDefa%lt r%le 5serient o!ner): "ty to not interfering with easement owners property./t in writing, can spell more things ot, an" can arg abot ambigity if yo&" like still.+rson: some are gone if strctre they se is brne" "own *some say arson "oesn&t remove easement an"maybe ST has to recreate strctre, or others allow to eliminate easementP%"lic olicy: easement create" by not by writing can be terminate" b3c heavy br"en to T w3o agreeing to it

Rnning with lan": 2xample: 9 H / have problem, an" then 9 %' / . oes % an" still have br"en of 9 an" /?

Iss%es:

• oes this make lan" inalienable, nmarketable? *ans probably no b3c people willing to accept many

con"itions, prev: no one wante" to by encmbere" lan"

• o we want lan" perpetally br"ene"? *eg. "on&t bil" p, yet in M9, all yo "o is bil" p

P



coe of ease'ent:

• allow if reasonably foreseeable to effectate the same prpose of the original easement w3o srcharging it.

• coe s%rc$arge: e!ten"ing scope a""s srcharge

• $!ample: E plots of lan", share" "riveway in btw them. 9n" then one person goes into constrction an"

brings heavy e4ip into it, an" then breaking p "riveway an" makes noise. What can other person "o? Goto cort? Who pays for chewe" p roa"? Scope of easement, scope of restrictive covenant.

• coe: se as hal roa" v. 0st "riving w3 car. amage, e!tra br"en? Oet a""e" signific

change3improvement to ppt&y 7makes something n0st 6 b3c make signif improvement that was visible, sothen if change position now, loss of money now8

• coe: ST can se lan" as long as "oesn&t interfere with T&s easement rights *an" more respons of ST

owner with written easement 6 looke" at more strictly what&s in writing 6 yet conterintitive b3c thenincentive not to pt into writing *b3c nonwriting easements are looke" at more narrowly.

Ter'ination*

what "octrines allow s to terminate 4ickly. If something is terminate" than what "o we "o with getting togarage?Ease'ents:> EBressed ease'ent: in writing

E I'lied ease'ent:a I'lied "y rior %se: s if someone "ivi"ing lan" into two an" se" one property for something*4asieasement, so implie" granting. %ts not as favorable to implie" reservation *b3c owner ha"right to pt things into writing in lease 6 an" knows lan" better. Termination: like e!presse"easement.

b I'lied "y necessity: if yo pt someone in lan"locke" lan" where they can get off with easementon yor lan", creates easement, Termination: en"s when necessity en"s

c Estoel: when someone has license, an" servient tenement sees an" allows investment in licenseso revoking license reslts in lose of hge profit from licensee *can prevent licensor from revokinglicense 6 reasonable reliance

• %ts: allow estoppel nless *> licensee breaks even from investment, *E gives them

easement 6 forever so shol" be high st", or * ntil strctre falls part *"epen"s on 0ris", *J as long as natre of license calls for it

• Some cts re4 licensee who gets easement by estoppel to pay "amages *to encorage

neighborliness Prescritie ease'ent: 9+ing easement when SoM over, with open an" notorios, continos *normal

se, claim of right *w3o permission, ninterrpte" se *owner "i"n&t stop yo. Servient tenement can also prescriptively get back easement.

/an andt, p. VV'Seer across land so brden yet also S- and D-* ?as it prescripti)e easement or easement implied from priorse>

Prescritie ease'ent: sewer systems are open A notorios *in4iry noticeEase'ent i'lied fro' rior %se: *notice: why "i"n&t grantor by easement, in4iry notice: byer shol"have aske" abot sewersEase'ent "y necessity: plmbing necessary or only lan"locking lan" necessary? *fol"s into notice 6 shol"have aske" b3c important part of hose, compare" to apples falling on yor lan"Since one T lot owne" by grantor, shol"n&t grantor have 0st pt it in writing *e!presse" v. implie"easement? Some cts say "oesn&t matter if yo&re grantor3grantee, others cts want grantor to pt easements inwriting *reservations 6 b3c know lan" better

Ease'ents 5olicy &%estion)*

PJ



S!old focs be on establis!ing or terminating easement or bot!>

• Common law: pressre in establishing easement

• Third *estatement : pt pressre in terminating easement

(actors deter'ining i'lication of ease'ents or rofits, p. XFF'*> whether claimant is grantor3grantee,*E terms of conveyance,* consi"eration given for it *reflect easement?,*J whether claim is ma"e against simltaneos grantee,*Q the e!tent of necessity of easement or the profit to claimant,*P whether reciprocal benefits reslt to the grantor an" grantee,*V manner in which the lan" was se" prior to its conveyance,*X e!tent to which the manner of prior se was3might have been known to the parties. fairness gron"s?

Will grantee get win"fall *lower hose price b3c easement yet not enforce"?

EBa'le0 . 619 59)Q

Rig!t to go on someone elses property – golf clb

• If golf clb keeps sen"ing golf balls over yor lan" when "oes it become prescriptive easement? (ow can

yo prevent? epen"s on st" of interrption by 0ris", bt also can pt p fence *prevent balls from comingover or give them permission

EBa'le: prescriptive easement for right to contine "oing something on property *eg. storing trash ongarbage pick p "ays, encroachment over line in carport+rescriptive easement over 9+: ac4 right in how yo got encroachment *stay w3in scope of seage 6 right for particlar prpose as oppose to 9+ *get all ownership rightsTricky sitation: -anilo sitation *9+ v. easement for encroachment of home improvements, so possiblesoltions are:

*> 9+,*E prescriptive easement, or* encroachment with "iff sets of reme"ies H concerns.

Similar concerns in "iff 0ris": *> not in writing an" *E "ealing with what someone who owns lan" saw thenencroacher came on their property *look at fairness

Ot$en . Rosier, p. XFE'Ease'ent of necessity: has to have been necessary *not 0st convenient at time of conveyance of lan", an" both parties knew abot implie" easement.I'lied "y rior %se: br"en to prove * 6id grantor use before subdivided land and then use afterwards>Prescrition: *wasn&t e!clsive so then no easement by necessityis that tre?, might re4ire goo" faitheasement *actally think that easement is his

ol%tions:*> bargain with neighbors,*E legislative a"ministrative hearing *re4 pathway yet who "o yo "eci"e who will be br"ene"? an" benefiting party pays D "amages *isse of state taking private property rights yet stronger pblic policy of lan"locke" lan"* %t or"er transaction: like legis a"min hearing, bt or"ere" by ct.

EBa'le0 . 61> 52), if lan" sb"ivi"e", previosly 4asieasement bt once "ivi"e" tract, one lot is lan"locke" w3in that lan" grant, then cts or"er. Sol&ns: *> e4ity: fair sitation cases in0stice *"ivi"e p e4ally

PQ



with e4al access to roa"s if no constraints to =oning, *E legis a"min hearing: someone br"ene" yet pai" for br"en

EBa'le0 carort: If 9 encroaching on /, an" then / bys 9&s lot an" sells it to %, then % "oesn&t have prescriptive easement

• 8int: look for lan" that has easement an" then T an" ST comes into same ownership so easement

"isappears. Start from beginning again with combine" ownership. on&t imply from prior se past the time

ownership was nite" into one owner.• Non7eBcl%sie 5'inority oinion): re4iring e!clsive se for easement. (ar" if ST ses easement with

T an" then ST wants to change se of property *can&t interfere with easement of T, yet for some, Tcan&t change ses of easement

• erger doctrine: by T an" ST lan" *combine ownership

Ter'ination doctrine:

• Ease'ent "y rescrition: prescriptively take away easement *take back certain prposes, narrow scope

• %y ease'ent "ac?

• P%t % "loc?ades *prevent prpose of easement

• +%to'atic s$%t7off oints *in e!presse" easements: if in L *atomatic reversion• Estoel: "ep on 0ris", stops when licensee gets vale back in investment

• +"andon'ent of ease'ent: person makes it obvios that they "on&t want easement anymore *e!presse"

statement, an" behavior clearly inten"e" *sb0ective, not ob0ective

• I'lied ease'ent "y necessity: en"s when necessity en"s

ro!n . /oss, p. X'eneral r%le: when have easement spelle" ot, to e!ten" scope is misse of easement an" it&s a trespass.%rc$arging ease'ent: increasing br"en of ST too mch *eg. if T "ivi"es into smaller lots with sameeasementsEBtending scoe: can&t e!ten" se *if only for lot /&s se, can&t e!ten" to lot %9gain: scope of prescriptive easement3necessity more narrow than e!presse" easement b3c ha" change to

bargain for scope of easement

Possi"le sol%tions:> forced transaction* preserve easement an" sage bt rewar" money "amagesE loss of ease'ent: pnish the srcharging T by "estroying easement b3c e!cessive srcharge too har"

to monitor an" T taking a"vantage of yo. *yet still ha" chance to have scope in writing 6 yor ba"N Presa%lt . United tates, p. XJ' RR sage to Rails4to4-rails act #ma&ing old RRs pblic pat!ays$* ?as t!at easements intended se and did RRs abandon easement>

• (actors to see intent of arties: price, form they se" *recor"e" "ee"

• If ease'ent0 t$en go4t =%st $as to co'ensate P for da'ages 5increased %sage)

• coe: RR prposes or pblic prposes?

• +"andonedK

• In or"er to aban"onment, mst show T that yo clearly "on&t want to se easement anymore *took off

tracks, cleare" lan", yet they left the strctre there *so might come back even tho nlikely' st" ofaban"onment shol" be high so we vale easements *costs, etc.

• When aban"oning easement, "on&t have to leave in same con"ition, 0st can&t "amage srron"ing

property

PP



I'lied fro' rior %se0 i'lied "y necessity: reslts from sb"ivision itself 6 can&t pll ot from writingre4irements.%rdens: heavy b3c interfering with property rights permanently, while implie" by necessity *for lan"locke"lan" only while necessary *lower st" to est

P%"lic ease'ents

P%"lic rig$ts to riate roerty: if people sing yor property to cross, may get prescriptive easement *espif roa" yet if n"evelope" roa", probably won&t see as pblic esement *se seen as permissible, so property

shol" be close" or have trespassing sign P%"lic rig$ts to "eac$: highly stattory area, have right to se beachan" sometimes can se "ry san"P%"lic tr%st doctrine: can go into "irection of pblic "irecte" prescriptive easement *pblic ac4iring rights, privately owne" pblic resorce 6 pblic trst makes very limite" lan" available *eg. coastal lan" alrea"yincl"e" when yo boght property.(o%r traditional negatie ease'ents *p. XQQ, the right to stop yor neighbor from

>. Might: blocking yor win"owsE. 9ir: interfering with air flowing to yor lan" in a "efine" channel,. Removing the spport of yor bil"ing *s by e!cavating or removing a spporting wallJ. Interfering with the flow of water in an artificial stream.

Ne! negatie ease'ent:

Q. %onservation easement *"on&t "evelop lan": scenic3historic areas A open spaceP. Solar easement *"on&t block sn 6 blocking neighbor&s solar collector, snlightV. #nobstrcte" view easement 6 keeping view of lan", obstrcting T@ aerials

inds of enc%'"erances:Got conveying langage *present poss interest, ftre interest;egative easements%ovenant rnning of lan"

,O/EN+NT,oenants* 5restrictie coenant and e&%ita"le serit%des)

Disting%is$ing "t! coenantsFease'ents*

Restrictie coenant* restrictive covenant *contract, re4 more to enforce,Negatie ease'ent* property interest,lassic ease'ent: someone else&s right to go on lan" on someone&s lan"Negatie ease'ent: restriction of someone&s own se of lan" for someone else&s benefit' rare an" narrow

• Want negative easements *less re4&ments instea" of covenants

• %oncerns abot negative easements: very limite", why not have 6 easements if recor"ing act gives sbse4

prchasers notice *free"om of L really important.

• Restatements hea"ing towar"s no "istinction yet kept in to preserve history

. ,oenants 5real coenants and e&%ita"le serit%des)

• What yo can an" cannot "o while staying on one&s property

>. Real coenant *money "amages, of law 6 more re4irements, personally liable, re4 writing *grantee bon" w3o signing, only grantor has to sign, re4&ment for br"en of covenant to rn at law *intent to bin" to sccessors, privity of estate *hori=ontal an" vertical, toch an" concern, sbse4 prchaser of promisor&s lan" mst have notice.Englis$ la!* only for MMT, bt in 9merica, also for grantorgrantee rltshipDisting%is$ fro' condition* forfeitre *eg. BS, BSS%S(irst Restate'ent* ob0ect to brning rnning at law' 3rd Restate'ent*

PV



E. E&%ita"le serit%des *in0nction or specific performance, in e4ity, liability limite" to lan", not re4&" inwriting

• ,oncern: of being able to terminate perpetal easements an" covenants

• Iss%e: sometimes e4itable servit"es more br"ensome *b3c have to "o specific act an" lan" in0nction

more costly than money "amages, yet e4itable servit"es still have less re4&ments

Real coenants5irst *estatement 0expectation that it%s in writing(.+. re4ire" for br"en, not for benefit@.+. re4ire"Intent for covenant to rn *in writing? ;otice to sccessors in interestToch A %oncern

Real ,oenants E&%ita"le erit%des

,reation 9lways in writing re4&" #s re4&" bt may arise byimplication from commonscheme of "evelopment of aresi"ential sb"ivision

R%nning of %rden (ori= privity *share"interest in lan", apart fromcov by original coving parties' or cov pt in a "ee"from grantorgrantee

;o privity re4&"

@ertical privity: sccessorhol"s entire interest hel" bycoving party

R%nning of enefit @ertical privity re4&" ;o privity re4&" in moststates

Re'edy -oney "amages In0nction

,FL riity of estate re&4'ents for real coenants:

Real ,oenant:8oriContal riity: <egal rlts!ip bt to people it! gronded interest in land #eg* bt << and - grantee4grantor$ if reac!agreement b;c of interest in land assme its stic&ing to land e"tend interest to <<4- /or4/ee #stra$

• tra!: like grantorgrantee rltship *ses lawyer to convey back to yo an" yor neighbor w3 covenant

attache"

• England: only se covenants for MMT rltship, +'erica: se g&eeg&tor as well

o ,o''on la! "ase r%le: (+ both re4ire" for br"en an" benefit to rn.

o (irst Restate'ent: only re4ire" (+ for br"en, "islike br"en rnning at law *b3c br"ensomeo T$ird Restate'entFodern la!: "on&t re4 (+ for br"en3benefit rnning, bt instea" treat

affirmative an" negative covenants "ifferent. *re4s more notice an" no (+

• R%nning of "enefit: ,FL: col" rn w3o covenanting parties being in privity of estate *b3c then lan"

"oesn&t have n"iscoverable br"ens an" "oesn&t a"versely effect marketability, yet to se sbse4 br"ene" party, re4 both @+ an" (+

Reason for 8P for "%rden: cts "on&t like having br"en traveling with lan"

/ertical riity: only if absolte sbstittion #e"actly same estate interest of grantor$

PX



%ovenant traveling with estate, not lan"R%nning of "enefit:

• ,FL: (+ re4&" for br"en3benefit to rn

• 1st Restate'ent: @+ re4&" for br"en bt not for benefit *rns with any benefit bt ;39 to 9+'

• T$ird Restate'ent: "iscar"s re4&ment of @+ for rnning both the br"en3benefit. Trying to mel"

covenants together. Disting%is$s "t! affir'atie and negatie coenants:

• Negatie co 5ro'ise not to do so'et$ing): rn with sccessors *treate" like interest in lan",

things can been as H or 6 so comes "own to: whether we shol" have these things stck to lan" at allan" how they shol" stick to lan"

• +ffir'atie coenants 5ro'ising to do so'et$ing): @+ re4&" for both br"en3benefits H also rns

with 9+ an" lesser estates, "epen"ing if it&s fair, sticks to lan".

• EBcetion: homeowner&s ass&n *can enforce benefit even not apprtenant to lan"

• NeBt Restate'ent: now, focse" on creation, bt later focs on shtoff "octrine to protect

marketability. Tren" towar"s no "istinction btw negative easements an" e4itable servit"es.

• oal: keep br"ens from accmlating, yet calle" into 4estion that people are willing to by heavily

br"ene" lan".

• EBa'le* 5"iff btw affirmative3negative covenants trim my trees so yo "on&t block my view. $ither

affirmative cov *trim trees, negative cov *"on&t obstrct view, negative easement *nobstrcte" view.

• If anyone conveys entire estate, then release" from L *only MMT ni4e an" re4 a novation for a release

Notice:

• Sbse4 prchaser *esp br"en to have notice *in4iry, recor", or actal of (+

• Problem: if negative covenanthow "o yo have in4iry notice from that?

Intent to r%n:

• show (+s want cov to rn with the lan".

• $asy to show w3 %3M b3c se straw *g&org&tee' -o"ern law: look for (+s min"set yet important if sbse4

br"en prchaser has notice *in4iry, recor", or actal of (+

EBa'le: (+ for br"en to rn bt not for benefit to rn *% "oesn&t nee" hori=ontal privity 9% to get benefitfrom /, b3c / is L party. (owever, for sbse4 prchasers of br"en, sbse4 prchaser of benefit re4&s (+

*benefit 9 *hori=ontal interest / *br"en 6 trim trees

Z gron"e" in interest in lan" Z %

To%c$ and concern: re4&ment that sbstance of promise toches an" concerns lan"

• Criginally only satisfie" with affirmative cov, bt not e!ten" to con"os *har" to "efine

• If cts "on&t like cov, then say it "oesn&t TA% *look at overall benefitsbr"ens of lan"s

• +ffir'atie "%rdens are disfaored* br"en greater to 0stify *b3c effects marketability, esp if D is re4&"

• If "enefit is in gross0 "%rden !ill not r%n* or else w3o possibility of getting release *no way to terminationit, yet Restatement claims there are other ways for release

• Oerall is "%rden greater t$an "enefitK If so0 no T,0 overall negatively effecting lan" vale *yet

"ifficlt test to apply an" Restatement avoi"s, serves sefl prpose beyon" in"ivi"al benefits, policyconcerns: marketability, effect fn"amental right *policy isses aren&t a""resse" n"er r" Restatementn"er TA%

Pro"le's0 . 6@3,1. 5single fa'ily) + 5single fa'ily)

P



, 5, "%ilds at co'leB)

+ns: if 9 an" / "i"n&t create (+ w3 straw, then not cov, yet have other options, like L law *even if (+, also re4@+, Intent, ;otice, TA%.

2. + "%ilds at0 not ,.

+ns: % can se 9 for "amages *benefit si"e can rn w3o (+ if br"ene" party is original L&or. /r"en si"ehasn&t rn yet so "on&t nee" (+ to se br"ene" person.

E&%ita"le serit%desinterest in lan", yet "oesn&t have to be in writing *yet nee" goo" e!cse

E&%ita"le serit%de of land 5ele'ents):

• intent for parties the promise rn

• actal, constrctive notice of covenant yet can rn w3o notice as well

• toch an" concern lan"

• (+ or @+ are not re4ire"

Neonsit Proerty O!ners4 +ssociation0 Inc. . E'igrant Ind%strial aings an?0 p. XVQ' Payments didnt toc! and concern land yet cts anted to encorage !omeoners association*

;eponsit Realty conveye" to yer for DDD

*promise to pay DJ3year to maintain roa"sZ/ank *"on&t want to pay DJ3yr for maintenance roa", yet why

Sai" that homeowner&s ass&n represents homeowners, who have property *so it&s TA% lan" 6 follow commoninterest 6 e!ception.Ease'ent in gross: har" to fin"3by ot benefite" person ot if not attache" to lan" *;O: can&t cov w3 benefit

in gross. ,t4s sol%tion: ;eponsit +roperty Cwner&s 9ss&n *represent property owners/oth real cov an" e4itable servit"es K notice, intent to rn, an" toch A concern.

$4itable servit"es: ;o (+, ;o @+ for br"en?, @+ for benefit?Real covenants:@+, (+ To%c$ and concern s%"stit%te* T$ird Restate'ents0 . 66@

Invali" against pblic policy if servit"e is:a. arbitrary, spitefl, or capricios

b. nreasonably br"ens a fn"amental constittional right• free"om of e!pression v. common interest, commnity restrictions *yet if allow commnity

restrictions then take away in"ivi"al free"oms

• if nreasonable restraint on tra"e3competition, then invali" servit"es *similar to present

possessory interestc. imposes an nreasonable restraint on alientation". imposes an nreasonable restraint on tra"e or competitione. nconscionable

Pres%'tion for T,* initially look to see if contract is toching the lan".

VF



/alidity* encorages Ling btw ppl, so they can "eal w3 problems as they come along

,o''on La!

Real Co)enant #O4 s!o more elements b;c O may samp personal assets as ell$ HP for brdenLP for brden;benefit %ntent to rn: #eg* % bind my sccessors interest$ Notice

- C

(itable ser)itdes p* @5 #brden on ppty re(ire feer elements$ No HP No LP for brden #>$

LP for benefit #>$

*estatement 0=rdJCo)enant rnning ; landK #O damages or in,ncti)e relief$ No HP LP #>$ – .P can se e)en ,st claim of rig!t for benefited landoner #reac! anyone on negati)e co)$

.ffirm co) #!ea)ier brden t!an negati)e co) re( LP$LP for benefit reasonable rles for brden Negati)e co) no LP re(d #anyone !o possesses;ons$

%ntent to rn NoticeLalidity #p* @@$ #instead of - C$

Ter'ination:,FL:

• cov invali" from beginning by seeing if TA%ing

• Mook at formal rles of @+ to prevent br"ens on lan"s

Restate'ents alidity:• Bocs on termination v. %3M focs on creation, want goo" covs to rn ntil tility rns ot

• more broa"er than toch an" concern, abot 1freedo' of contract2, opportnity to br"en their lan", get

benefit of L w3o rnning into problems of br"ening lan" with goo" termination "octrine *What&s fair?*parties intent it to rn, what&s most reasonable, pressre of in0nction3money

• Mooking not so mch at @+3(+ bt where the br"en lies *negative cov less br"ensome

• ;egative cov: no @+ rer4&"' affirmative cov: @+ applies for br"en to rn, nee" to look at reasonableness

rles

• Mooke" "irectly at cov instea" of formalistic rles to make sre not nnecessarily br"ensome

T%l? . oB$ay, p. XPJ'In $nglish, only have MMT to create real covenant, yet with this case, e4itable servit"es were create".

rantor rantee

9 / *promise" not to bil" on lan"3gar"en

Z % *wants to bil" on lan"

% pai" price that reflecte" covenant so even if "oesn&t est real covenant, nfair that % gets win"fall of BS9 an"ignores restriction. 9 gets in0nction an" this creates e4itable servit"es.

V>



"ample: ,n this day 11<!<G= 3 and D agree that 3 0owner of Dellow 6og #aloon will maintain historic faNade of all sides of the structure Dellow 6og #aloon located at "&

U O

_ _A -

W starts mo"erni=ing so 5 ses. %an arge for conservation negative easement *"on&t have to be tie" to thelan". on&t have to worry abot (+, bt can se for D "amages b3c easement *where yo can either money orin0nction 6 great

,reation doctrines 5. 6@;F6:>)Q

Real covenants: create" in writing, $4itable servit"es: may be implie" in e4ity n"er certain limite"circmstances, bt not n"er prescription

"ample: *written agreement ,n 11<!<G= 7 and A entered into agreement that in exchange for I!k payment from A to 7 7 won%t build on his land& A 7

have this agreement recor"e" an" both ppt&y sol". ;ot "ealing with @+ *they transferre" with everything

they ha", etc.' 7 6O A C C wants I damages for 6 to build an apt complex& #ue for I damages&

%ommon law: see it in interest in lan". i"n&t est (+. So % has to claim it to be negative easement: can beeither easement of view or conservation easement

an"orn . cLean, p. XVF:E&%ita"le serit%de 6 can be implie" with general plan for resi"ential "evelopment *even if no actal notice b3c not in yor "ee", yet may have in4iry notice' restriction on others "ee"s has be in place before yo getyor lan"

• %9: re4s that general "eveloper have restriction in "ee"

• Sanborn %t: allows for this e!ception, makes bying lan" more e!pensive3risky b3c nothing in writing an"

have to gess, instea" of re4&ing more things in writing, if "eveloper in "irect chain of ownership an" has plan near yor lan" bt yor lan" isn&t incl"e", yo have in4iry notice

• Intent of -cMean&s seller: how seller represents things to -cMean

$4itable servit"e isses: what&s important writing, how easy is it to fin", how mch "oes this increase therisk3cost of bying lan" *cost of title searcher, increase risk of bying lan", more e!tensive yor search, morerisky yor prchase

To%c$ and concern

• To%c$ and concern: wil" car" for cts if they "on&t like cov. %ts "islike if cov not relevant to lan" an" 0st

personal *signif "etract vale of lan", cov shol" benefit the marketability of lan" or common areas *roa"snear yor lan" 6 ;eponsit

• E&%ita"le serit%des: ct 0st look at pblic policy to facilitate H econ rltship *reciprocally beneficial an"

br"ene" 6 b3c payment of D if as if lan"owner is maintaining facilitates 6 "efinitely benefits an" br"ens people in rltship to lan" obligations connecte" to lan".

2xample* 8o'eo!ner4s +ss4n* contract stic?s to land so t$at s%ccessors of interest yet not arties in

contract are still "o%nd "y contract

VE



9 / 1bligations: sports clb *DEFF3mo' compter access *DEFF3mo,

_ _ restarant *D>FF3mo, airplane *D>L3mo%

Which things wol" yo keep as toch an" concerning lan" *if all other elements in place 6 given notice,hori=ontal privity?

Otions for co%rts of alidating o"ligations**> /ol%ntary associations: allow b3c people chose to get into this *an" more efficient than to pay commercialstff in"ivi"ally if poss of bying other lan"%t allow "epen"ing on how someone can respon" to market responses *an" sht off principles' "oes this effecthosing availability *hosing mkt, marketability?

EBa'le0 . 66: 52) ,ts fo%nd t$at coenant didn4t $ae T ,

*spply water +

_ _*benefit: receive D' br"en: provi"e water *benefit: receive water'

br"en: paying for water

_S+

*want to stop rnning of br"en H benefit

If eery ele'ent eBcet T, 5!ater necessary to %se roerty)*

,t: can say that water isn&t necessary to lan" *b3c not tie" to lan", an" S+&s "esire to get ot isn&t going to hrt from provi"ing svcs to other +, therefore, re'i%': better get ot of cov earliest.Deeloer: wol" pt time limit on *to calc ma! profits an" a"0 water prices' ays for deeloer to rotect

$i'self : L w3 original property owner *an" get high pfront costs for initial prchasers so want optionsavailable, yet with this impe"e technological a"vances

asic arg: benefits are greater than br"ens of br"ene" lan"owner

,a%llett . tanley til!ell ons0 Inc.0 p. XXXD *lot P

* gets to bil"_

S+

Sometimes "oesn&t matter if TA% b3c it&s not a property interest, bt 0st a L *benefits as person, not aslan"owner 6 not attache" to any lan" of &s, better case if owne" lan" an" "esire" eclectic architectral"iversity

/enefit K in gross_

/r"en ` rn)eneral background rule *%ommon law: benefit of restricte" covenant is in gross *personal, not tie" to lan",then br"en will not rn. /r"en can be in gross bt benefit can&t be in gross *has to be linke" to lan" so can by ot benefit 4odern rule: look at continity of time, sensitive if going too long *see if they can fin" br"ene" person, selllan"Scope of covenant:

V



8ill . ,o''%nity of Da'ien of olo?ai, p. X'

• 9pplicable covenant *p. XJ: no lot shall ever be se" for any prpose other than single family resi"ence

prposes, etc.

• Mook at "efinition of singlefamily *reasonable reliance e!pectation, yet nclear *look at it more broa"ly,

pls "iscriminates with BB(9 *only incl"e isses that are in contract 6 if concerne" abot traffic, shol" bein L

• %ts fon" that "iscriminatory intent in enforcing covenant against them *e!ception, yet "i"n&t throw ot

entire covenant b3c potential nconscionable ses *so narrow it with scope as oppose to throwing thecovenant ot all together, "on&t knock ot completely bt 0st that se of covenant

• Isse: if talk abot only resi"ential prposes, what abot when people se homes as offices?

• Is it applicable to only oter faa"e? oes it have to "o with traffic, etc?

$elley . rae'er, p. FQ'

• S%t of -issori: property restricte" for QF years restrict the se of sai" property by people of ;egro or

-ongolian Race. Receive" warranty "ee" to Shelley.

• %t: force" "ivesting of title from Shelley an" revesting into imme"iate grantor *en0oine" sale

• S%t -ichigan: %t left title to /lack prchasers an" restricte" /lack prchaser from occpying property' yet

can own any property *%ivil Rights 9cts of >XPP look narrowly at what covenant says.• #S S%t: narrowing of scope too broa" an" entire thing eliminate". /chanan v. Warley *states3mnicipality

creates segregate" sections, yet %onstittion only reglates States +eople yet also State Gov&t

enforcement *corts incl"e" +eople *not to "iscriminate

o so cts aren&t allowe" to enforce this "iscriminationN

• Broad : ct has right to not implement "iscriminatory acts *%onstittional rights

• Narro: cts only enforce for racially restrictive covenants, then ct acting like state actors when enforcing

this.

• Restatement *mi""le gron": fn"amental right is implicate", the cort will not be able to enforce.

%9: >: whenever yo have title with smmary of restrictive covenants are not enforceable *prchasing pblic may be offen"e" by recor"s, writing

• keep historical recor" intacte" yet also show that illegal to enforce restrict covenants *illegal with BB(9

now an" "on&t have to go to Shelley case

• some people thoght that things will be e!pnge" *show racial "iscrimination

property bryant fa 2002.doc

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