Concept of Property Harry

I. Concept of Propertyo Theories:

a. Occupation- if occupation have legal claim to that thingb. Labor- person has moral right to possession through their laborc. Contract- result of contract between person and communityd. Natural Rights- natural law dictates the recognition of private propertye. Social Utility- legal protection of private property promotes humans maximum

fulfillmento Arguments of Property:

a. Justice- system motivated by the most just outcomeb. Efficiency- system motivated by wealth, happiness, and utilityc. Posner- The Economic Theory of Property Rights: Static and Dynamic Aspects

1. Property rights need to be exclusive and transferable to avoid all the wealthy people acquiring all the property

2. Dynamic Analysis: the assumption of instantaneous adjustment to change is relaxed, more complex than static analysis.

3. Static Analysis: suppresses the time dimension of economic activity. All adjustments to change are assumed to occur instantaneously. (UNREALISTIC)

o Concept of Property- consists of a bundle of rights or expectations in a tangible or intangible thing that are enforceable against third parties, including the governmenta. Real Property b. Personal Property (chattels- physical things such as automobilies or clothing and

intangibles)o Ownership Options:

a. Privateb. Communalc. Government

o Market Inalienable:a. Not to be sold, not to be traded in the market

o Property Rights:a. Possessb. Usec. Transfer (alienation) – right to sell or give awayd. Exclusione. Discent- right to give property away when you dief. Right to divide the rightsg. Destroy

o Definitions:a. In specie- recovering the actual propertyb. ii. Ejectment- a suit to get real property back, you want to go to your property and

eject the people on it

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c. Replevin- an action for the repossession of personal property wrongfully taken or detained by the Defendant, whereby the plaintiff give security for and holds the property until the court decides who owns it

d. Injunction- equitable orders to act or refrain from acting can get and injunction to make your neighbors build a fence as to not disturb you

e. Trover/Conversion- an action for the recovery of damages for the conversion of personal property

f. Tresspass- not getting you out of possession but invading your propertyg. Nuisance- others interfereing with your enjoyment of your property from outside of

it (on their property so not trespassing)o Popov v. Hayashi

a. Cause of action – Conversion: wrong exercise of dominion over property that belongs to someone else

b. RULE: Where an actor undertakes significant but incomplete steps to achieve possession of a piece of abandoned personal property and the failure to continue the effort is interrupted by the unlawful acts of others, the actor has a pre-possessory interest in the property. That pre-possessory interest constitutes a qualified right to possession, which can support a cause of action for conversion.

c. Grays Rule: the actor must retain control of the ball after incidental contact with people and things. This cannot resolve the case because plaintiff did not encounter incidental contact but was attacked.

d. Court Rules: Equitable Division- both get 50/50 of the ball

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II. Found Property/Possession and Ownershipo 4 Kinds of Found Property

a. Mislaid Property- Property that is voluntarily put in a certain place by the owner who then overlook or forgets where the property is. If the property is mislaid, then the owner of the premises where the property is found is entitled to possession, not the finder.

b. Abandoned Property: Property is abandoned when the owner no longer wants to possess it. Shown by proof that the owner intends to abandon the property and has voluntarily relinquished all rights to it. Once property has been abandoned, the first finder who acquires dominion over the property becomes its owner if an agent goes to who they are working for

c. Lost Property: Property is lost when the owner unintentionally and involuntarily parts with its possession and does not know where it is. If property is lost, possession of the property is entrusted to the finder of the lost property not the owner of the premises where the property is found, finder second to the actual owner, some states have time period for owner to claim if don’t then to finder and get reward1. Rule of Successive Finders- second finder against whole world except the owner

and first finderd. Treasure Trove: Coins or currency concealed by the owner with an element of

antiquity. The property must have been hidden or concealed for a length or time so that the owner is probably dead or undiscoverable. (largely eliminated from most cases), belongs to the finder

o Ganter v. Kapiloffa. Cause of Action- Replevin, designed to obtain possession of personal property that

is wrongfully detained from the defendantb. Rule- The finder of the lost item has the right to exercise ownership over it against

the whole world except the true owners. Once the true owners are determined, the finders possessory interest ceases.

c. G held stamps against all the world except K. When K made claim the stamps were his again.

o Benjamin v. Linder Aviationa. Plaintiff discovered two packets of money inside the wing of a plane he was

servicing. Plaintiff, a bank and the employer all claim the money.b. ISSUE: who gets the money and to determine must decide what kind of found

propertyc. HOLDING: Supreme Court said it was mislaid property because it was voluntarily put

somewhere by the owner who then forgot about it. Because found on plane, it belongs to bank – no finders fee.

d. DISSENT: Not mislaid, it was abandoned. Likely person knew where it was but didn’t come forward (bc its drug money)

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o In Re Seizure of $82,000 More or Lessa. Drug money in car recovered by government subsequently sold to innocent people

at auction b. HOLDING: money is abandoned because true owners knew about it and chose not

to claim it because it was drug moneyc. RULE: Innocent Owners Defense- finders weren’t involved in drug transaction,

therefore allowed to claim. P is owner because of possession by the principal (first to claim it, gets it). Mechanic who found $ was acting as agent for couple therefore couple gets to keep $ because they are the principal.

o Payne v. TK Auto- Plaintiff used fake identity to put $1300 down in an attempt to buy a car. Plaintiff was jailed for fraudulent purchase and sues to get his money back even though the P stole the money.d. ISSUE: Whether a thief has claim to possessory interest in stolen property over

current holders of $?e. RULE: A person in possession of stolen property has a claim of possessory interest

superior to the world at large, save one with a better claim to the property. (the one whose actual money it is)(not all jurisdictions)

f. HOLDING: Plaintiff has better rights to the money over D (TK Auto)

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III. Bailmentso Bailment- the rightful possession of personal property by one who is not the true owner

for a specific purpose recognizing that the property will be returned when the purpose is accomplished. a. Bailor = true ownerb. Bailee = current possessorc. Action for conversion if item not returned by bailee

o 2 Views of Bailmentsa. Traditional Rule- 3 levels of bailments and duties

1. Bargain for exchange= ordinary duty of care ie: leave car at shop to get fixed2. Bailements entirely for benefit of bailor = gross negligence ie: bailee does favor

for bailor, keeps care of her car, gratuitous3. Bailments entirely for benefit of bailee = extra ordinary care. (liability without

negligence aka strict liability) ie: bailor does favor for bailee, so bailee needs a car and bailor allows his to be borrowed, non-gratuitous

b. Modern Rule- Reasonableness standard regardless of who is getting the benefit. What would a reasonable person expect in similar situations. (See Peet v. Roth), ordinary negligence

o Elements of Bailments:a. Possession of property- no bailment unless bailee obtains physical custody of the

property with intent to exercise controlb. Bailee’s Consent- delivery must be accepted by baileec. Knowledge of Presence- must have knowledge of the article in possession(ring in

the coat)d. Bailee Must Account For What Happened to Chattel- because they are the only one

who knows what happened to ito Peet v. Roth

a. D (bailee) voluntarily and knowingly accepted a ring from the P (bailor) to hold for Mr. Holtz. The ring was lost or stolen and P sued for damages. D argued that the value for ring was not divulged therefore they shouldn’t have to pay full value or ring.

b. RULE: A bailee is responsible for property given to them if the identity and outward character of the property is made obvious even if the value is not divulged, bailee has burden to show were not negligent so presumed they were

c. BAILMENT: An express or implied agreement between a bailor and a bailee in which the bailee is entrusted to accomplish a specific purpose with the bailor’s personal property; when the purpose is accomplished and property not returned to 3rd party then there is conversion because bailee has strict liability.

d. HOLDING: Hotel (D) liable due to negligence. Bailee D has burden of proof that they were not negiligent and court found bailee unable to prove they weren’t negligent

o Allen v. Hyatt Regency

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a. Allen drove his car into a commercial parking garage, parked the car and left with the keys. Upon his return the car was gone. The parking garage was enclosed, had a ticketed entrance next to an attended exit and security guards patrolling at unspecified intervals.

b. HOLDING: There was a bailment sufficient to impose liability on the hotel garage.c. RULE: Bailment for hire exists when there is a sufficient expectation of protection

upon the owner of the establishment.1. If the property in question is accepted into an enclosed, indoor and attended

space by the alleged bailee then there is sufficient expectation of protection or other obligation upon the owner of the establishment even though the owner doesn’t have the keys and therefore less than full control over the vehicle. Presumption of negligence is therefore in play and it is up to the defendant to prove no negligence.

d. DISSENT: bailment for hire requires a full delivery that will entitle the bailee to exclude the possession of all other persons and will put him/her in sole custody and control of the property. Allen took the keys to the vehicle thus preventing full control of the vehicle from being transferred.

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IV. Adverse Possessiono the nonpermissive occupation of another’s land, which possession, if continued for the

period of the statute of limitations on actions to recover land, will give the occupier the estate owned by the person then legally entitled to possession.

o Elements:a. Actual

1. Must physically use the land as a property owner would, in accordance with the type of property, location, and uses.

b. Open and Notorious1. Use of the property is so visible and apparent that it gives notice to the legal

owner that someone may assert claim. It must be of such character that would give notice to a reasonable person. If legal owner has knowledge, this element is met; it can be also met by fencing, opening or closing gates or an entry to the property, posted signs, crops, buildings, or animals that a diligent owner could be expected to know about.

2. Must be aggressive with personal property, it moves around. Not stationary like land. (Put up signs etc..)

3. Can be separate if encroachment is so slight that one cannot notice with the naked eye

c. Hostile1. Adverse possessor occupies land owned by another without permission from

the owner and behaves towards the land as the true owner would regardless of intent.

d. Exclusive1. Only has people on property as owner would (visitors, guests)

e. Continuous 1. Possession is as continuous as a normal owner would make of such land,

considering the nature of the land.2. On important element to adverse possession. Is tacking3. Tacking: Adding together years of adverse possession of multiple possessors but

must have a relationship either selling or kidso Statute of Limitations: - tresspassory acts cause statute to run. Adverse Possession for

the period of limitations gains the adverse possessor title to an estate.o Monroe v. Rawlings

a. Defendant has been using land the plaintiff claims title to for 15 years and is claiming the land should be theirs. The land is wild and suitable mainly for only hunting and fishing and defendants use it that way.

b. ISSUE: Whether owners actions were enough to constitute open and notoriousc. HOLDING: Successful adverse possession because land being used in only way

possible

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d. RULE: It is sufficient if the acts of ownership are of such a character as to openly and publicly indicate an assumed control or use such as are consistent with the character of the premises in question. Thefore open and notorious is met

o Nome 2000 v. Fagerstroma. Nome 2000 is seeking to eject the Fagerstroms from a part of land that Nome 2000

holds the title to. Nome 2000 states that the Fagerstroms can only claim adverse possession of the northerly section of the land and no more. The Fagerstroms are claiming they own all of the land due to adverse possession. (One year in particular is under contention because the F’s only had reindeer shelter and no home there that year.)

b. RULE: Adverse possession relates only to the areas affected directly and not to areas untouched by the evidence. To acquire AP, the claimant must prove in clear and convincing evidence that for the statutory period his use of the land was continuous, open, notorious, exclusive and hostile to the owner.

c. NOME ARGUED: seasonal use didn’t satisfy element of continuous use.d. Assumed hostile unless evidence to suggest otherwisee. HOLDING: adverse possession of one section of land does not entitle a person to

claim the entire parcel of land. F’s claim northern section only, not entire parcel.o Chaplin v. Sanders

a. The Sanders’ are claiming adverse possession of land even though they were aware that part of the land belonged to the Chaplins.

b. ISSUE: Does an adverse possessors actual notice to the true owners interest in the land negate the hostility element?

c. RULE: determining hostility requires only that the claimant treat the land as his own against the world throughout statutory period. The element of open and notorious is satisfied when the owner is aware of the use and the owner is then considered to have received constructive notice Subjective belief regarding his true interest in the land and his intent to adversely posses is irrelevant.

d. HOLDING: The Sanders’ get the property. If the person claiming adverse possession knows of the true owner’s interest in the land that knowledge does not negate the element of hostility. Quieted title to Sanders

o Manillo v. Gorskia. Plaintiffs sought an injunction against an alleged trespass on their land by the

defendant. The defendant extended her steps on her house and they now encroach on the plaintiff’s property by 15 inches. Defendant claims adverse possession.

b. ISSUE: 2 issues: 1. Whether it was hostile because D’s didn’t know they were encroaching on P’s land. 2. Whether it was open and notorious because it was such a small encroachment onto the property

c. RULE: 2 Doctrines of Hostility:1. Maine Doctraine- intent of possessor must be to claim someone elses land.

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2. Connecticut Doctraine: intent doesn’t matter. Shouldn’t reward a possessor who premeditated the taking of someones land over someone who did on accident (court uses this)

d. The rule for open and notorious: when the encroachment is of an adjoining owner and is very small and not noticed to the naked eye but requires a survey for disclosure then the intrusion is not disclosed and it is not notorious.

e. HOLDING: The property was open but not notorious because the encroachment was so small the G’s couldn’t have been given notice.

o Wright v. Wrighta. Plaintiffs seek quiet title of land from deceased’s siblings after they lived and used

the land and siblings didn’t. They were granted a joint tenancy initially.b. HOLDING: one party of a joint tenancy can make a successful motion for adverse

possession and gain sole ownership of the land in question.c. In asserting adverse possession of a jointly held tenancy the party asserting the

claim must prove: 1. That they have exclusively and continuously occupied the land for the statutory

period and used it in a way an owner would. 2. They must prove that an ouster has occurred, that they retain exclusive

possession after demand or that they have given the cotenant express notice of adverse possession. Conveying part of the land to a stranger constitutes an ouster. Express notice is satisfied by either “bringing home” notice of the adverse

party to the nonpossessory cotenant or by unequivocal acts that are open and public making the possession so visible and hostile that ownership is presumed.

Adverse possession cannot rise from any permissive possession until there is an ouster.

o Porter v. Poseya. Plaintiffs used a .18 tract of land that was left out of the deed but intended for their

use. They seek adverse possession.b. ISSUE: Whether tacking is allowed to satisfy APc. RULE: Land that is adversely possessed can be transferred to another party thru

intent and reception/possession, or oral agreement and does not need to be in writing or mentioned in a deed selling the land surrounding it.

d. IMPORTANT CONCEPT: tacking is allowed in AP to satisfy statute of limitations.o Henderson v. First National Bank of DeWitt

a. P claims statue of limitation does not apply to the adverse possession of his stocks because the D’s did not legally disclose their right of ownership. P argues legal action necessary for disclosure.

b. HOLDING: once ownership is under dispute, the party in possession of that property can adversely possess that property if there is no other formal declaration of

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ownership by the other and the statutory limits begin upon the awareness of the dispute. That awareness constitutes notice for purposes of adverse possession. In this case, P knew of their possession therefore awareness had been given.

c. RULE: Once a person has been put on notice that another is claiming their property it is up to them to declare ownership of their property within the statute of limitations.

d. ONLY DIFFERENCE BETWEEN AP OF REAL AND PERSONAL PROPERTY IS DISCLOSURE IS NECESSARY FOR OPEN AND NOTORIOUS ELEMENT

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V. Nuisanceo A condition, activity or situation (such as loud noise or foul odor) that interferes with the

use or enjoyment of property.o Private Nuisance- the invasion of the interest of a possessor of land in freedom from any

unreasonable non tresspassory interference with his use and enjoyment of the land or his use of the land of another which is subject to an easement or other servitude in his favor.

o Public Nuisance- the public interest in freedom from activity which endangers the health, safety, or property of a considerable number of persons, offends public morals or interferes with the comfort or convenience of a considerable number of peoplea. Traditionally brought by public prosecutorb. Private Party Bringing Claim- 1) traditional only brought by private party if suffered a

different in kind than the general public that suffered the damage, 2) modern approach don’t need injury different in kind just had an injury in kind

o Elements:a. Locationb. Character of the Neighborhoodc. Nature of the thing complained ofd. Frequencye. Effect Upon Enjoyment of Life, Health and Property

o Remedies:a. Injunction- modified or permanentb. Damages- value of the nuisancec. Balance favors plaintiff then injunction or permanent damages, if defendant no

injunction but damageso Nuisance Scenarios

a. No Nuisance: No injunction, no damagesb. No Nuisance: injunction and damages (ie: Spur- because Webb came to nuisance,

there is no nuisance)c. Nuisance: No injunction, damages (ie: Boomer)d. Nuisance: Injunction, no damages (Penland)

o Penland v. Redwood Sanitary Sewer Service Districta. Sewage plant is causing bad odor since switching method and residents seek

injunction from the smell (Public nuisance)b. RULE: If property is deemed a nuisance it can be forced to move to a new location

and the cost of the move will be charged to the party most able to afford it. The injunction may be refused if the hardship to the defendant greatly outweighs the benefit to the plaintiff. Two possible outcomes (injunction or damages).

c. Court compared 5 elements of a nuisance and weighed benefits/costsd. HOLDING: a group of residents can have a business shut down as a nuisance even

when that business has taken steps to lessen the impact of the complained about

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issues and serves the public so long as the benefit of the nuisance to residents outweights cost to D’s 1. Private nuisance: A condition that interferes with a person’s property esp., a

structure or other condition erected or put on nearby land, creating or continuing an invasion of the actor’s land and amounting to a trespass of it.

2. Public Nuisance: An unreasonable interference with a right common to the general public such as a condition dangerous to health, offensive to community moral standards, or unlawfully obstructing the public in the free use of public property. In situations that go far beyond the use and enjoyment of land.

o Boomer v. Atlantic Cement Co.a. Defendant operates a large cement plant near Albany. The neighboring landowners

allege injury to property from dirt, smoke and vibration emanating from the plant. Plaintiffs file for injunction and damages.

b. HOLDING: the injunctive action will be granted but can be set aside upon payment of permanent damages to plaintiffs which would compensate them for total economic loss to their property present and future caused by defendant’s actions.

c. RULE: When there is marked disparity between the economic costs of injunctive relief against a public nuisance and the economic costs to the private plaintiffs an injunction will still be ordered but may be vacated by payment of permanent damages to the plaintiffs.

d. Problem- companies would know how much the extra pollution/nuisance will cost them, commit the nuisance anyways but already plan for the cost to the P’s to keep operating (buy out neighbors)

e. Dissent- 18 months to figure out solution but continue to operate until thenf. Tresspas v. Nuisance: Trespass is automatic damages, nuisance P’s have to prove

injuryo Spur v. Del E. Webb

a. Spur Industries was in an agricultural land area when the Del Webb Co. moved in and built a residential area. Once Del’s residents moved in, Spur became nuisance. Del sues for nuisance.

b. HOLDING: the developer of a completely new town or urban area in a previously agricultural area is required to indemnify the operator of a feedlot who must move or cease operation because of the presence of the residential area created by the developer.

c. RULE: Where a developer has, with foreseeability, brought into a previously agricultural or industrial area the population which makes necessary the granting of an injunction against a lawful business and for which the business has no adequate relief that developer will indemnify the owner of the feedlot for the costs of injunction.

d. Webb must pay because he brought people to the nuisance

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VI. Rights Above And Below The Surfaceo Mineral Rights

a. Mineral Rights Tests1. Whether substance possesses an exceptional characteristic or peculiar property

giving it specific value a part form the land itself2. Whether there exists local knowledge of the substance as an extractable

mineral at the time the instrument was executed3. Word mineral so ambiguous that extrinsic evidence should be introduced to

determine the parties intent4. Aids to the construction of language such as the doctrine of Ejusdem Generis

b. McCormick v. Union Pacific1. P’s and D’s land was severed in deed. The plaintiffs allege that the defendant’s

have improperly claimed the oil and gas in properties where the deed reservations reserved “all oil, and coal and other minerals within or underlying said lands.” Issue: Whether “other minerals” meant oil and gas.

2. HOLDING: the word, “other minerals” in a deed from grantor to grantee includes underground oil and gas (and all other valuable petro carbons).

3. RULE: In Colorado, the word ”minerals” in a deed from grantor to grantee includes underground oil and gas unless there is a demonstrated intention to the contrary. Owners of land typically own not merely the surface, but also minerals

under the ground. The ownership of minerals can be severed from ownership of the rest of the

land. Subsurface Estates can be separated by deed from surface estates.4. Goal Post: Court determined whether oil and gas were closer to “other

minerals” or dirt, clay, sand and things not conveyed in mineral deed. 5. McCormicks (top soil owners presumably own air rights)6. Severability- ability to severe your land in different ways.

Can sever cone of property under ground or can sell air rights of property or just sell top part and reserve the air rights. And can severe any combination in between

o Air Rightsa. Own everything above property so that can enjoy the land that you needb. U.S. v. Causby

1. Plaintiffs claim that govt. jets are a nuisance. They are flying low enough to kill chickens and disturb use of property.

2. P’s claim takings clause under the 5th Amendment3. HOLDING: disturbances caused by low flying planes that cause depreciation in

value and enjoyment of property constitute a taking of an easement over the property

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4. RULE: Flights over private land are not a taking, unless they are so low and so frequent as to be a direct and immediate interference with the enjoyment and use of the land

5. Court set airline at 500 ft.: plane flying below 500 feet was a trespass and over 500ft was a nuisance

6. So anything above anything you are using is not trespass, but can get enjoinment for nuisance if below that five hundred feet, anything above can get damages not enjoinment

7. DISSENT: The majority’s opinion is unwarranted judicial interference with the power of Congress to develop solutions for new and vital and national problems.

8. NOTE: if someone is blocking your light you MIGHT be able to bring nuisance ( most courts have not allowed this claim)

o Water Rightsa. 3 Types:

1. Flowing- lakes, rivers, and streams2. Surface Water- rain water that floats on ground3. Percolating- underground water

b. Flowing Water1. Source Title Doctrine- riparian is only that which has been held as a single tract

during its chain of title2. Unity of Title- allows one who owns land on water then adds on is allowed as

long as they are connected3. Riparian Rights- all riparian owners get use of relevant water an all non riparian

people get nothing Natural Flow Doctrine:

Shouldn’t be disturbed from its natural course, only take out minimal amount without disturbing the natural flow

Allows full use of water as long as it doesn’t interfere with others use

Reasonable Use Doctrine (most preferred) Full use as long as you don’t unreasonably interfere with others use. Not concerned with impairment of flow or quality. Factors: destination to which water is taken for use, purpose of the

questioned use, the extent of the water used, pollution of the water by use, whether the use involves an alteration of the manner of flow, miscellaneous uses that make it rise to litigation

4. Appropriation: first come, first serve. First person to find water and put it to use have claim

on that water. (if someone moves upstream after you were there, then you still have rights to water over them)

5. Borough of Westville v. Whitney Home

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Plaintiffs seek injunction of sewage plant that leaks into their community pond but causes no real damage to water. (Psychological)

RULE: In determining whether injunction is the correct relief for a claim of pollution or contamination of waters flowing in a fixed watercourse between adjoining riparian owners, the reasonable use doctrine is used to determine whether or not the effect complained of is denying or diminishing one of the riparian owners use and enjoyment of the water. Social uses and harms must be weighed.

HOLDING: a riparian owner cannot enjoin a sewage plant for allowing the effluent of sewage treatment water into it’s pond due to purely psychological reasons when the effluent is shown to meet safety standards and there is no proof that the use of the water has been diminished for psychological reasons

c. Surface Waters1. 3 Rules

Common Enemy Rule- Landowners have unlimited privilege to deal with the surface water on their land as they pleased without regard to the harm which may be caused to others.

Civil Law Rule- Recognizes that higher elevation tracts have an easement or servitude over lower tracts for all surface water that naturally flows downhill. However, anyone who increases or interferes with the natural flow of surface waters so as to cause invasion of another’s interests was subject to liability to the other.

Reasonable Rule- Possessor of land is not absolutely prohibited from interfering or increasing the natural flow of water but privileged to make reasonable use of land even though the flow of surface water is altered and causes some harm to others so long as alterations are reasonable

2. Westland Skating Center v. Gus Machado Plaintiff is suing because defendant built a wall to throw back water onto his

property and it is causing damage. RULE: The higher tract land enjoys an easement across lower tract land

when things are in their natural state but improvements to land require circumstances to be taken into account.

d. Percolating Waters1. 3 Doctrines:

Old English Rule: a person who owns land may dig and apply all that is found to his

own purpose and pleasure, malice does not matter Reasonable Use (American Rule):

Limits the right of a landowner to percolating water in his land to such an amount of water as necessary for some useful or beneficial purpose in connection with the land from which it is taken, not

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restricting his right to use the water for any useful purpose on his own land, and not restricting his right to use it elsewhere in the absence of proof of injury to adjoining landowners.

Correlative Rights: The rights of all landowners over a common basin are coequal and one cannot extract more than his share, even for use on his own land, where others’ rights are injured.

New Restatement Rule: someone who draws water for a beneficial use is not liable unless:

Withdrawal of water causes unreasonable harm through lowered table and pressure

Groundwater is actually a stream Withdrawal of water has a direct and substantial effect upon water

of a water or lake First use will dictate terms of depth wells A new farmer cannot sue if he has to dig deeper Someone using too much should supplant his affected neighbors Cannot withdraw an unprecedented quantity like a city

o Lateral Supporta. Strictly liable to support land in natural stateb. No duty to support modified land except must not be negligent and exercise due

carec. Negligent for modified landd. But strictly liable if plaintiff can prove would collapse without housee. XI Properties, Inc. v. Racetrac Petroleum

1. The plaintiff on this case purchased adjoining land from the defendant, which included an artificially created embankment providing support for the defendant’s parking lot. The plaintiff wants to remove that embankment which is now on their property but would remove lateral support for the lot.

2. RULE: A landowner owes a duty of lateral support only to adjoining land in its natural state and only to the extent the support is necessary.

3. HOLDING: a landowner has a duty to exercise due care when removing lateral support of artificial additions from adjoining property

4. NOTE: A owns house. B is neighbor that wants to remove lateral support. Lateral support is on B’s land and supports A house. IF A can prove that land would collapse regardless of the weight of the house then B is strictly liable. If A cant show that then only claim is that B was negligent.

5. 5 factors in showing negligence: necessity of excavation whether adequate notice given to adjoining land owner reasonable precautions taken competent workers employed proper instruments used

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6. Strict liability- any excavating which causes adjoining unimproved property to subside or collapse of its own weight, natural condition will subject the excavator to strict liability.

7. Negligence- excavator failed to use reasonable care in making excavations

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VII. Methods of Transferring Propertyo 2 Methods of Transferring Property

a. Inter vivos = while aliveb. After Death

o Inter Vivosa. Deed- a writing by which the transferor (called the grantor) describes the land in

question and states that it is being transferred to a recipient (called the grantee). 1. Grantor must sign the deed and it becomes effective only when delivered to the

grantee.2. A deed is not a contract; it is a conveyance, a document whose purpose is to

transfer ownership.3. Most commonly used method of inter vivos transfer of real estate. 4. Statute of frauds applies

b. Lease: Landlord’s transfer of an estate to a tenant for a limited term. (Deed for a fixed term estate)

c. Patent: A writing transferring original title from the U.S. Govt. to a private owner. (Just a specialized form of deed)

d. Other Inter Vivos Transfers:e. Eminent Domain: Court decree placing title in the government and determining the

amount of compensation the owner is entitled.f. Inverse Condemnation: Former owner brings suit against the govt. for compensation

due to govt. occupying their land.g. Adverse Possessionh. Involuntary Condemnation: Quiet title, mortgage default and taxes

o After Deatha. Either by will or intestate (which is a transfer with no will so transfer is under

statutes dictating property)b. US follows Statute of Distribution which guarantees your property stays in the

familyc. Intestate

1. Per stirpes- by representation: property given to first line of living heirs. Descendants, no matter how remote, take to the exclusion of all ancestors and collaterals. Example: goes to wife, then kids, then grandparents, then sbilings, ect.

2. Per capita- by head: count up number of takers and give them all an equal share.

3. Table of Consanguinity page 239d. Will-Testamentary Disposition

1. Revocable during his lifetime2. Applicable to the situation which exists at his death

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3. Need 2 witnesses to a will within reasonable time after signing of will. Witnesses don’t have to sign that they witnessed in front of testator or see testator sign the will.

4. Revocation of wills- Wills are revocable during lifetime and applicable to situation which exists at his death. If there are 2 wills, the second will (more recent) does not cancel the first

will but does supersede it. So second will is used unless something is not mentioned, then first will may be referred to.

Codicil- supplement of addition to a will In a number of states, marriage or divorce will revoke a will Will is for real property In testament for personal property

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VIII. Present Estateso Only gave give what you haveo Freehold Estates

a. Fee Simple Absolute- unlimited duration and no future estate1. Language:

To A and his heirs To A, his heirs and assigns To A

2. Transferability By deed, will, or intestate

3. To A are words of purchase4. His Heirs are words of limitation

b. Fee Simple Defeasible1. Fee Simple Determinable

Estate ends automatically upon the happening of a certain event A future estate with possibility of reverter that ALWAYS goes back to

grantor Language: “so long as”, “until”, “during” Example: “ To A so long as A uses as a church.” So if A starts using as a pub,

immediately back to grantor. can by adversely possessed Mesne Profits- after event granto entitled to rents or profits until leaves the

lands2. Fee Simple On Condition Subsequent

Estate is vulnerable to being terminated at grantors election. After the terminating event, grantor may re-enter and take but does not automatically revert back to grantor.

Cannot be adversely possessed Language: “but if”, “provided that”, “conditioned that” Example: “Black acre to A for nature conservatory but it A ceases to use as a

conservatory then grantor gains the right of entry.”3. Fee Simple Subject to Executory Interest

Estate shifts over to a 3rd party (instead of grantor) upon the happening of the event

Example: “Black acre to A so long as used as a church but if ever used for any other reason then to B.”

Most are automatic Shifting and springing

c. Life Estate1. Possession for life. Fee simple for life always followed by reversion or remainder2. 2 types of life estate

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“To A for the life of B.” (pur autre vie) if A dies before B then Black acre goes to A’s heirs if A dies intestate

until B dies. “To A for life.”

o Greentree v. Williamsa. Granddaughter mortgaged a fee simple absolute to bank when she could only

mortgage fee simple determinable.b. Rule: Mortgage ended when determinable event occurred and property reverted

back to grandmother.c. Holding: Bank doesn’t have a claim against the grandmother, only the

granddaughter.o Wood v. Board of County Commissioners Freemont

a. Plaintiffs gave away land to hospital. Hospital gave land to school. P’s contend that deed language stating “for purposes of” a hospital creates a determinable or condition subsequent estate.

b. HOLDING: No, simply stating the purpose in a warranty deed does not constitute a fee simple determinable or a fee simple subject to condition subsequent. Must expressly state power to re-enter or possibility of reverter.

o In Re .88 Acres of Propertya. Plaintiff conveyed land as fee simple determinable to Town to be used as a

meetinghouse and it was instead used for a school for 15 years. Plaintiff claims quiet title.

b. Holding: Land was adversely possessed through fee simple determinable because owners did not re enter and take at time of terminating condition and therefore twon adversely possessed against P’s ever since.

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IX. Future Estateso The interest is NOW, the possession is in the futureo Whenever an estate is less than fee simple absolute, there is a future interest because it

has to end and go somewhereo Whenever someone has a possessory interest less than fee simple absolute, someone

must have a future interesto Current Interests When Holding A Future Interests

a. Condemnation: Land gets condemned to build a new freeway, future estate holder gets compensated

b. Transfer: Future Estate holder can transfer his future interest now even though he doesn’t have possession yet.

c. Waste: Future Estate holder can recover damages for diminished property value caused by the current owner.

o 5 Types of Future Interestsa. Reversion- Created when a grantor who holds a fee simple absolute conveys to

someone else a lesser estate.1. Freely transferable by deed, will and intestate succession2. All deeds To A for Life. Then after A’s life, reversion to grantor.

b. Possibility of Reverter- The interest created in a grantor who conveys a fee simple determinable1. Determinability has a limit and upon expiration can become indefeasible.2. To A so long as the land is used as a residence

c. Right of Entry- Right or power in a grantor to take certain action that will terminate a possessory estate, which the grantor has previously conveyed.1. Devisable and descendible 2. Most states allow intervivos transfer, some don’t3. Limited to time statutes in several states4. To A but if his land is not used as a residence then grantor may re-enter and

take possession.d. Executory Interest-

1. Any future interest created in a 3rd party that is not a remainder because it fails to comply with one of the 4 rules of remainders. An express condition ( a ceratin event) has to happen (other than the expiration of all the proceeding estates) to give possession to a 3rd party. (Difference between Executory Interest and a Contingent Remainder is that a Contingent Remainder still has a potential reversionary interest in the grantor.) Shifting- To A for life then to B

e. Remainder1. Future interest created in someone other than a transferor, which according to

the terms of its creation will become a present estate (if ever) immediately

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upon and no sooner than the expiration of all prior estates created simultaneously with it. To A for life then to B. B has a remainder.

2. 4 Rules of Remainders Must be created at the same time as and by the same instrument that

creates the prior estate or estates. May never follow a fee simple defeasible estate (an estate where grantor

can regain possession); must follow either a life estate or leasehold estate. Must not have the capacity to cut short the prior estate(s). Must only take

possession upon the natural termination of the prior estate. Must not be any built in time gap between the termination of the prior

estate and the remainder taking possession.3. Contingent- Relying on something to happen before. Not certain to come to rest

with any of the given parties. Taker of remainder is unascertainable, or Remainder is subject to an unfulfilled condition precedent Must vest on or before termination of the preceding estate or it is

destroyed. To A for life then too B and his heirs if B is married but if B is not married

at the time of A’s death then to C instead. To A for life and if B has reached 21 by A’s death then to B. To A for life, remainder to those children of B who survive A.

4. Vested- something may happen after Taker of the remainder is ascertainable There is no condition that must be met

Indefeasibly vested remainders- Absolute assurance of receiving land upon, no risk of reduction or loss

To A for life then to B. Remainders Vested Subject to Complete defeasance- May come to an end

prematurely due to a condition subsequent To A for life then to B so long as B uses it as a residential area. The condition occurs after B gets possession

Remainders vested subject to open- A remainder in favor of a class of persons that is capable of increasing in membership.

To A for life then to the children of B. If B is alive then it is subject to open because B could have more children.

Only arises when interested vested in an entire class of people. Once growing class gets possession then that class closes and no

more can claim possession.o Restraints of Alienation

a. 3 Types of Direct Retraints1. Disabling Restraints: attempts to make the transfer to land impossible

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almost always held to be void2. Forfeiture Restraints: Either automatically terminate upon an attempts to

transfer property or terminated subject to power of termination in the grantor., type of fee simple determinable Held to be void if it is unlimited. But if limited to time and scope then ok. Example: cant sell for 2 years Held to be valid on Leasehold (lessee cant sell)

3. Promissory Restraint: Seeks to create contractual promise by grantee not to convey an interest in the land which grantee is receiving. If unlimited in time and scope then restraint likely to be void. Covenant not to transfer.

b. Albany v. Banc One1. Plaintiffs conveyed land to their niece at discounted rate w/ condition that it

reverts back to them if it is ever encumbered by a mortgage etc… Mortgage was taken, niece defaulted and plaintiffs sue for property from the Bank.

2. Holding: A reverter in a fee simple determinable estate preventing a mortgage and/or encumbrance on the land for a limited time constitutes a forfeiture restraint on alienation. However, the restraint is a reasonable one because it did not stop the grantee from selling, it just limited the marketability of the land or ability to finance the purchasing of the land.

3. RULE: Restraints on alienation of the land are reasonable restrains if justified by legitimate interests of the party.

4. In determining whether a restraint is reasonable the court must: Balance the utility of the purpose served by the restraint against the

injurious consequences that are likely to flow from its enforcement. Look at the scope and time of the restraint Look at the purpose of the restraint and whether it is supported by

consideration.5. Present value of future interest is equal to the value of the present plus the

amount of interest for future value6. Spend Thrift Trusts- decsendents cannot alienate interest to anybody

o Protection of Future Interestsa. Waste- the unreasonable use of the property by the owner of the possessory estate

which reduces the value of the future estate. 1. Future interest holder can receive money damages or injunction. Money can be

put in escrow for future interest holderb. Doctrine of Waste

1. Future interest holder has a present interest in making sure they get what they want.

2. Present estate holder has a responsibility to keep property in order.c. 3 Types of Waste (life estate pays the taxes and interest then future pays the

mortgage or principle)

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1. Voluntary Waste: Overt destruction of value by present possessor per se; Impermissible overt waste Exceptions

Open Mines DoctrineNon-renewable resources cannot be used unless use had already begun before current possessor took possession.

Doctrine of EstoversPossessor can use renewable and non-renewable goods on the property to make repairs on the property. Otherwise said can use ON site materials for ON site purposes.

Doctrine of EmblementsRenewable resources can be used at a renewable rate because present use doesn’t end future use; use as much as you can without withdrawing from the future interest.Examples: Can cut timber if cycle of timber will grow back within time of next estate.Example: Can produce a harvest on land

2. Permissive Waste Catastrophic accidents

No need to respond to catastrophic events unless it is the current possessors fault.

General upkeep Little fixes that can prevent larger damage in the future requires current

possessor to respond. Normal wear and tear

Normal wear and tear doesn’t need to be repaired by possessord. Remedies and Assessment Of:

1. Courts look how vested future is, if indefeasibly vested damages for injuries possibly prohibitory injunction or mandatory injunction, if future is contingent or vested subject to defeasance then enjoin threated waste unless probability of future interest vesting is remote and damages are only rewarded if it is clear future interest will become possessory

e. Brokaw v. Fairchild1. Plaintiff wants to demolish an original dwelling in Manhattan conveyed in a life

estate in order to construct more profitable apartment complex. 2. Holding: words in conveyance were “my house” meaning grantor intended to

transfer home and not apartment complex. P may not demolish building.3. RULE: A life tenant can enjoy his estate in such a way that the land will pass to

the remainderman as close to its original nature as practical but may not exercise an act of ownership or dominion.

4. Only exception is when there has been complete material change around the surrounding area not produced by tenant.

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f. Beach v. Beach1. Mother sues daughter to partition her life estate interest from her daughter’s

future remainder interest in new apartment attachment to the daughters’ house.

2. Holding: Life Estate cannot be partitioned from a future interest. Co-tenants can partition but future interests holders cannot

3. RULE: Partition only applies to concurrent interests, interests held simultaneously

in time. (Common Law). Simultaneous interests in the property do not constitute concurrent

ownership.

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X. Co-Tenancieso Tenancy In Common (default tenancy)

a. Every tenant has undivided interest with no survivorshipb. Freely alienable inter vivosc. At death passes to heir or devisesd. Can be partitioned by conveyance or court

o Joint Tenancya. Same rules as co-tenancy except there is a right of survivorship meaning tenant that

outlives other tenant has fee simple absolute.b. 4 Unities at Common Law of Joint Tenancy

1. Time2. Title3. Interest4. Possession

c. lack of any of these makes a tenancy in commond. To A and B not as tenants in common but as joint tenants with survivorshipe. A B and C are joint tenants. B grants to X before death. A and C are still joint tenants

and X is a tenant in common.f. More common to go by intent but still use four requirements but more flexible

o Tenancy By The Entiretiesa. Joint Tenancy for married peopleb. ii. Joint tenants w/ right of survivorship that cannot be defeated within the marriage

timeframe.c. iii. Both parties need to be on deed to sell property otherwise the sale is void.d. iv. Minority of states have abolished all togethere. v. Action to recover the amount due on a promissory note and to foreclose a deed

of trust on certain real property. Appellants contend that Anastesia’s signature on the deed of trust was not genuine. Appellees contend that doesn’t matter because both Nick and Anastesia owned the property as joint tenants with right of survivorship and the deed constituted a valid lien against the interest of Nick mercer, the executing joint tenant.

o HYPO: Peter and Marsha are cotenants. Peter pays all proper dues but doesn’t live there. Marsha does. Peter dies and leaves estate to Greg and Bobby.a. Greg and Bobby want to eject Marsha. They have 3 options

1. Partition in kind (split up the property)2. Partition- force sale of property3. Move there hopefully Marsha moves. But they cant charge Marsha rent just

because they don’t live there.b. Same events but Marsha leases the property to Sam for $500.

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4. Greg and Bobby can seek accounting. They can receive half of the rental value because when a cotentant rents out to a 3rd party, the other co tenant has right to half the proceeds.

c. If Marsha has live in boyfriend, it is a gray area as to whether he must pay rent. 1. Greg and Bobby argue boyfriend is third party, Marsha argues hes a guest

d. IF Marsha adds a 3rd story.1. Greg and Bobby don’t have to pay for it. Its not upkeep its improvement.

Cotenant cant be forced to contribute to improvements. 2. And if orinigal sale price of house is $200K then 3rd story is added and the

hosue is worth $400K then Marsha gets the extra $200K from the sale before splitting the rest with Greg and Bobby.

e. If Marsha paint interior and exterior1. Gray area because its unknown if its upkeep (maintainence) or improvements.

o Crowther v. Mowera. The plaintiff and wife had Joint Tenancy instituted a quiet title action against Mower

claiming the recording did not terminate the joint tenancy because Mower didn’t record the deed prior to mothers death and upon her death her share went to him as the right of survivorship.

b. RULE: A valid conveyance itself destroys a joint tenancy, and a joint tenant need not notify the other tenant or record the conveyance.

c. An unrecorded deed is void against a subsequent purchaser who purchases in good faith and for valuable consideration and who first duly records the deed. A joint tenant does not qualify as a good faith purchaser.

d. HOLDING: the deed when executed is an effective conveyance2. Estate of Phillips v. Nyhus

a. Plaintiff died before the closing of the deal with the 3rd party for sale of property. Nyhus brought claim against his estate for the proceeds of the sale to the Wiley’s as pursuant to the joint tenancy agreement and plaintiffs counterclaimed for portioning of proceeds and for payment of one-half of the estate.

b. HOLDING: if both parties of a joint tenancy clearly express their intention to create the joint tenancy and right of survivorship, and do not clearly indicate that the execution of the earnest money agreement is intended to sever the joint tenancy then the joint tenancy is in tact.

c. RULE: Earnest money agreement for sale of real property held in JT with right of survivorship does not sever the JT nor right of survivorship.3. Albro v. Allen

a. Albro and Allen are JT’s. Allen sells his half of the JT to Kinsler. Allen and Albro have dual contingent remainders.

b. HOLDING: a holder of one half of a joint life estate with dual contingent remainders can sell their half of the joint LE without permission of the other life estate holder. But cant convey their half of the contingent remainder.

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c. RULE: You can get out of a joint tenancy by partition, but cannot get out of contingent remainders.4. Porter v. Porter

a. Plaintiff (Mr. Porter’s new wife) files a complaint for the sale of the property for division upon Mr. Porter’s death. The defendant (Mr. Porter’s first wife) divorced Mr. Porter and the divorce court handed their joint tenancy with right of survivorship.

b. HOLDING: the divorce decree did not destroy the joint tenancy with right of survivorship and that the property vested in the former wife upon the decedent's death.

c. Issue: Whether divorce decree severed the 4 unities. Specifically, whether possession is destroyed because first wife given exclusive possession of house.

d. RULE: The mere temporary division of property held by joint tenants, without an intention to partition, will not destroy the unity of possession and amount to a severance of the joint tenancy.

e. Side Note: Divorce does destroy tenancy by the entirety.5. Brant v. Hargrove

a. Husband and Wife are joint tenants. Husband signed a mortgage without wife’s permission. Husband defaults on mortgage and argues that severs the JT into a tenancy in common. Wife dies and therefore bank cant foreclose because ½ of property goes to wifes heirs.

b. Holding: Joint tenancy is not severed until after foreclosure which was after W died so H was exclusive owner and bank could collect on entire house.

c. 3 Rules when title passes to bank:1. Title Theory- Title passes to bank at the time the mortgage is signed.2. Lien Theory- (majority) Title passes to the bank at foreclosure 3. Intermediate Theory- Title passes to bank at default

d. Note: If title holder to mortgage in a JT dies then bank has no right to claim.o Esteves v. Esteves

a. Parties owned a house as tenants in common after both paying 10k each and mortgaging an additional $14,500 for the price of the house. Plaintiffs occupied the house by themselves for 18 years after the defendant lived there for 3-18 months at the start doing maintenance and improvements.

b. Plaintiffs paid the mortgage and taxes which they wanted offset against the sale of the house for the D’s half of the house. D wanted rent for 18 years of not living there.

c. MAJORITY RULE: 1. An owner who has paid less than his share of operating and maintenance

expenses must account to the co-owner who has contributed more than his share regardless of possession or occupancy.

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2. All tenants in common have a right to occupy all of the property and if one chooses not to do so, that does not give him the right to impose an "occupancy" charge on the other.

3. The party seeking the credit for the other’s occupancy has the burden of demonstrating the actual rental value of the property enjoyed by the sole occupant

d. Minority Rule: Typically there is no right to an “occupancy charge”, but where the sole occupant demands compensation for operating and maintenance expenses from the co-tenant who allowed sole occupancy, the unoccupying co-tenant is due a credit from the sole occupant for the value of his sole occupancy of the premises to offset the costs.

o Carr v. Dekinga. Joel Carr and George Carr own land as tenants in common. They rent land to Deking

for farming. Joel wants to new terms to next lease. Deking goes behind his back and gets George to agree to terms of old lease. Joel sues to eject saying new lease is unenforceable because he didn’t know about it.

b. RULE: A cotenant may lawfully lease his own interest in the common property to another without the consent of the other tenant and without his joining in the lease. 1. This lease of the common property to third persons does not bind the non-

joining cotenant. 2. The lessee becomes a tenant in common with the other owners for the duration

of the lease3. A non-joining tenant may not demand exclusive possession as against the

lessee, but may only demand to be let into co-possessiono Massey v. Prothero

a. Land originally owned as joint tenants by many brothers and sisters. One of the brothers defaulted on taxes of the house. Without notifying (and in bad faith) another brother, Prothero, bought the house in he and his wifes name at the tax sale.

b. RULE: If the land is owned by tenants in common or joint tenants, and is sold for the nonpayment of taxes, then a cotenant cannot purchase a title at the tax sale which is greater than that of his fellow cotenants or that dissolves the tenancy. 1. The purchasing cotenant’s payment is regarded as simply discharging the

assessment, and it will inure to the benefit of all2. To establish adverse possession between cotenants the words and acts must be

directly hostile to the cotenancy relationship. c. Holding: Prothero and his wife are joint tenants on their share of the land but not

exclusively away from the other brothers and sisters.o Ark Land Company v. Harper

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a. Plaintiffs run a coal mining business and purchased land interest from some of the Caudill heirs but others wouldn’t sell as they had an emotional attachment to the land etc.. Plaintiffs sought to have the land partitioned and sold. Caudill heirs objected.

b. When Partion in kind is demanded, it cannot be denied for partition by sale unless it affirmatively appears on the record that such partition cannot conveniently be made.

c. Party requesting partion must demonstrate:1. The property cannot be conveniently partitioned in kind2. Interests of 1 or more parties will be promoted by the sale3. The interests of the parties will not be prejudiced by the sale

d. monetary concerns are no the exclusive concern to be evaluated.e. Other terms in Partitioning:

1. Owelty Payment to other parties to make divison of land more fair. Example: If in

the partition in kind, A’s land has a river on it and is more valuable, then A must pay money to B upon receiving equal sum of payment after partition.

2. Partition by Allotment Party pays off the others to have ownership in fee simple absolute

3. Agreements Not to Partition Honored as against successors for reasonable or rule against perpetuities. So long as the time period is reasonable, courts will enforce. (even though it

is a restraint on alienation) Co-tentants must expressly agree

o Coraccio v. Lowell Five Units Savings Banka. Husband of plaintiff had taken out a second mortgage on their home, held in

tenancy by the entirety, without her knowledge or consent and defaulted on the loan. Bank seeks foreclosure and plaintiff sues.

b. HOLDING: a bank can foreclose on and acquire the interest in the estate by the entirety held by the debtor tenant but the bank’s interest will be subject to the surviving spouse’s right to survivorship.

c. RULE: Either spouse can encumber or convey their interest in a tenancy by the entirety subject to the continuing rights of the other spouse. A bank cannot force a sale of the house due to a mortgage default that was taken by only one spouse.

d. CLASS NOTES:1. Husband (in debt) has survivorship interest

H outlives W→ Bank can foreclose W outlives H → Bank doesn’t foreclose

2. Majority of States Without spousal consent a mortgage is invalid from the start.

o Lakatos v. Estate of Billoti

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a. Frank and Carolyn Billotti owned property as joint tenants with rights of survivorship. Frank killed Carolyn and their kids. Frank inherits

b. Rule: Slayer Statute: No person who has been convicted of feloniously killing another shall acquire property or interest in property from the one killed. Property to which the person convicted would otherwise have been entitled shall go to the person or persons who would have taken the property had the convicted felon died at date of the death.

c. Holding: IF Frank had died before Carolyn, then entire property would have gone to Carolyn’s heirs at time of her death.

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XI. Marital Estateso TransMutation- converting community or separate to the other, easier to go from

separate to community, liability each spouse had before marriage is separate and if during then is community

o Common Law theorya. H and W become one, H is managerb. Married women cannot own property independently

o After Death property interesta. Dower: For womenb. Curtsey: For men

o Modern Lawa. Elective Share/Forced Share- allows surviving spouse to claim a percentage of the

community property from the marriage. (usually can claim $50%)1. Surviving Spouse gets either what the will gives them or an intestate share

(usually 33%)b. Augmented Share- prevents writing spouse out of will, ½ to 1/3 stuff not in will that

he separately tried to give elsewhereo Modern Spousal Options at Spouses Death

a. Willb. Intestacyc. Forced / Elective Share

1. If will is insufficient or more than intestate shared. Another new option: Augmented Share

1. Augmented Share- prevents disinheritance by means of will substitutions. Allows surviving spouses to get fair share of all the property passed through marriage union. Example: If H puts everything in trust for his mistress and it didn’t go

through probate then that’s thrown back in to the estate for her to claim of 33%

Example: H has child from previous marriage. W agrees to $3M house and kid get $500K. by agreement she is getting more than 1/3, under augmented share: it wouldn’t reach to allow her to collect the $500K. Under forced share she gets ½ of $3M house and ½ of the $500K

Uniform Probate Code Length of marriage determines how much of the augmented share is to be

claimed. Pre Nuptuals and Post Nuptuals can waive augmented and forced shares.

These shares are only used as default.o Homestead Right

a. Primary residence of family is off limits to creditorso Property

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a. Separate Property1. Owned before the marriage or gifts to one spouse during the marriage

a. Community Property1. acquired during the marriage; grows during the marriage2. at death entitled to half and half at divorce3. both parties have to agree to conveyances of community property

b. Doctrines of Time Acquisition Problems (when separate before marriage becomes communal after)1. Insception of Title- when credit transaction has been ineciated2. Time of Vesting- when title is vested3. Pro Rata- piece meal division of the ownership

o Tracing: Overcomes presumption that property is community.a. Mixing assets makes them Community (presumption)

o Pre-Nuptiala. Defines separate propertyb. Permissible, can alter default rulesc. Marriage itself is consideration for pre-nup contract

o Post Nuptiala. Limiting rules after marriage startedb. Marriage is past consideration now; doesn’t countc. Will be honored with new consideration.

o Liabilitya. Both signatures are required to sell any assetsb. Community and Separate liability same as in property rights

o At Deatha. Separate property → can dispense all of itb. Community Property→ Half to spouse, half to wherever

o Alimony (at common law)a. Only available for no fault spouses

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XII. Landlord And Tenanto Leasehold- tenants estate, possessory and exclusive interest, limited in time, overlays

owner’s fee simpleo Lease- Document granting the leasehold(non freehold possessory estate is in land

because you have a right to possession)(letting is action of giving it) (if crashing on buddies couch court will take presumption you owe lessor reasonable rent)

o Easement- actual interest in property but not possessoryo License- revocable permission, easement to possession to do something on the lando Ejectment- the action of ousting a would be adverse possessor. Usually arises when

Tenant not paying rent and LL wants to eject. Tenant can eject 3rd party.o 3 Types of Leases:

a. Tenanciesb. Licensesc. Servitudes

o Benham v. Morton & Furbusha. While plaintiff was staying at the rented cottage during a vacation she injured

herself on the attic steps. Plaintiff sues defendant claiming that she was a licensee and therefore defendant is liable for injury y negligently permitting the stairs condition to exist.

b. HOLDING: The agreement of the family to stay at the rented cottage was a license.c. Issue: Whether P is a tenant or a licenseed. RULE: Tenant has exclusive possession and occupancy and the LL is not liable for any

injuries on the property (some exceptions). Licensee- Permission to use for a particular act of series of acts

e. 2 types of duty:1. Licensors

Higher duty of care because they have access to property2. Leasors

Lower duty of care because they can’t come in to alter things.o Types of Tenancies:

a. Tenancy For Years (fixed term)1. Created by agreement2. Expires when: concluded, contingency, surrender by tenant, release by landlord,

condemnation by govt., expiration of landlord’s estate.3. By agreement for a set period of time

b. Periodic Tenancy1. Indefinite amount of time, not a series of successively repeating periods.2. Created at will or in holdover situation3. Extends until notice is given4. Expires with notice equal to periodic time set5. Month notice or remainder of month in plus one month

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6. Terminated by the same way except term periodc. Tenancy At Will

1. Arises until periodicity is achieved2. No clear terms of payment schedule3. Exclusive possession like a tenant but details aren’t established4. Expires when details are set or become custom (2 payments at first of the

month, starts a periodic tenancy)d. Tenancy At Sufferance

1. only after a fixed term and turns into periodic2. Arises during holdover period3. Tenant stays after interest is over4. Stops upon payment5. Prevents trespassing / adverse possession

o David v. Selka. Plaintiff sold land to defendant but never left the land. Ignored letters telling him to

move and initiating rent. Plaintiff then forecloses on defendant for not paying final installment.

b. RULE: Where a previous tenant is a holdover, a landlord can either: 1. sue for trespass and receive damages for reasonable rental value OR 2. treat the holdover as a tenant and increase the rent.

When a landlord demands an increased rent for continued possession of property and the tenant receives notice and doesn’t respond it is an implied agreement to pay.

o Covenantsa. A contractual promiseb. 3 Types

1. Covenant of Power: Power of Landlord to lease what the landlord says it is leasing. Can only lease what you own

2. Covenant of quiet enjoyment: keep lessor out of property while lessee is on property. Exclusive possession. Ex: If your neighbor throws a party in your house, LL has no responsibility to

kick him out. But if LL throws a party in your house then he is violating covenant of quiet enjoyment.

3. Covenant of Possession: LL keep out of 3rd party possession while lessee is in possession. 2 Rules: English Rule (Majority Rule): Lessor has a duty to clear out occupants or

holdovers and actually putting lessee in legal possession, not just physical possession. URLT Rule Lasts only until lessee takes possession then right of exclusion shifts to

lessee.

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American Rule (Minority Rule): Lessor need only put lessee in legal possession.

c. Adrain v. Rabinowitz1. Plaintiff leased certain store premises from the defendant, which would start on

June 15th. Another tenant was in the premises and refused to leave after receiving notice to move by June 15th. Defendant executed a judgment of removal on July 7th. Plaintiff sues for time without premises.

2. RULE: Where a lease is to start in the future, the lessor is obligated to deliver legal and actual possession to a lessee at the commencement of the lease. Standard damages for dispossession are the difference between actual

rental value and the rent reserved for the period of deprivation of possession.

More specific damages, as in loss of sales, require statistical data to back up the claim.

3. Damages Consequential Damages: Damages arising from violation of contract. Actual Damages: Harm actually suffered Incidental Damages: Expenses that arise from dealing with the harm.

o Tenant’s Duty To Occupya. Mercury v. Woolworth

1. Woolworth agreed to pay a monthly rent and an additional rent in the form of a percentage of gross profits if profits exceeded $387k. Woolworth never reached those profits and no percentage was paid. Mercury bring termination suit for failure of consideration to operate diligently to fulfill the implied covenant of percentage profits.

2. HOLDING: there was no implied covenant to generate high enough profits to trigger the percentage of profit rent. The guaranteed monthly rent is considered adequate to not imply that the

percentage profit marker needed to be reached. The obligation must arise from the presumed intentions of the parties as

gathered from the language of the contract or it must appear that the that obligation is indispensable in order to fulfill the intention of the parties, and

It must have been so clearly within the intentions of the parties that they deemed it unnecessary to be written.

3. RULE: In the absence of a contractual promise to do so, a tenant has neither the duty to occupy the premises not to use the premises for any particular activity.

4. Best Efforts Contract: Splits the risk, if commercial lessee does well, it will pay more rent, if it does not, if will pay less rent.

o Traditional Rules Of Fitness And Repaira. Service Oils Co. v. White

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1. The defendant actually deeded the front ten feet of the leased property to the city but did not inform the plaintiff of this. Plaintiff only learned about it when they attempted to install a canopy and had the land surveyed.

2. Rule: A lessor may be held liable for latent defects known to the lessor and unknown to the lessee, if the lessor prevents the lessee from discovering the defect or knowingly fails to advise the lessee of the defects which the lessee would not discover by exercise of due care prior to execution of the lease.

3. Caveat Emptor: buyer beware. The lessee has responsibility of inspecting premises before leasing. Only exceptions listed in Rule.

4. Exception: If the parties make an agreement as to special uses, then one party cannot have outside knowledge that makes that specialty useless. Ex: Tenant knew gas station couldn’t be used in a certain way but didn’t tell other party.

5. Warranty for Fitness of Purpose Ex. Shoes sold to climb Mt. Everest, fall apart 2 meters up, not suitable

for purpose sold. Not suitable for purposes of commercial leases.

Latent Defects Not available to easy discovery; hidden Lessor has duty to inform leasee of their existence

Patent Defects Discoverable by reasonable inspection; obvious Service Oil should have done a title search

6. Traditionally LL has no duty to fix premises and Tenant has duty not to commit waste.

o Types of Evictions:a. Barash v. Penn Real Estate

Plaintiff brought this action for partial actual eviction and reformation of agreement to conform to the alleged oral agreement of continuous air.

1. Constructive Eviction- exists when LL’s wrongful acts substantially or materially deprive the tenant of the beneficial use and enjoyment of the premises. T must abandon possession in order to claim constructive eviction

2. Actual Eviction- T has not abandoned property but there is substantial interference with beneficial enjoyment and T may remain without paying rent.

3. Partial constructive eviction- situation where LL renders unsuitable for occupancy either in whole or part so that T is forced to leave.

4. Contract is the whole agreement, any previous oral or implied agreements have no effect.

o Warranty of Habitabilitya. Most states (not all) have adopted themb. Residential premisesc. Must be fit for habitation at delivery and maintained during tenancy

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d. Housing Codes1. Minimum standard for structural elements, necessities, occupancy limits2. Violations are not well enforced, authorities are easily bribed, slow, unsure,

inefficient review processe. Holder v. St. Peter

1. Plaintiffs rented from defendant and complained of multiple defects that were never repaired, some she repaired herself. Plaintiff seeks compensatory damages.

2. HOLDING: Implied warranty exists in oral or written lease for residential premises that landlord will deliver over and maintain premises that are safe, clean, and fit for human habitation

3. RULE: When a landlord breaches the implied warranty of habitability, the tenant may withhold future rent, and may also seek damages in the amount of rent previously paid without abandonment. Warranty of habitability does not require tenant to abandon premises

Implied warranties are waivable Sweeping warranties are not

Landlord has to fix everything, regardless of contractCosts go up for rent to cover repairsHouses can be taken off the market for any defect resulting in an increased price and a decrease in houses available

Before bringing a warranty of habitability actionNotify the landlordGive reasonable time to fix the defectDefect was existent during the time rent was withheld.

Remedies available to tenant in VermontPunitive damages if landlords willful and wantonCompensatory damagesContract remedies

Warranted worth / Defective worthAnnoyance and discomfort damagesRecovery of amount spent in self repairs

Warranty of habitability does not require tenant to abandon premises Courts find landlord in better position to carry the burden of the

warrantyf. Detling v. Edelbrock

1. Tenants claim landlord violations of Kansas City fire code, enormous annoyance, discomfort, frustration, mental anxiety and distress.

2. RULE: A landlord impliedly warrants habitability when leasing residential property, Tenant must allege facts for breach of warranty of habitability satisfying the

following elements:

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They entered into a lease for residential property Subsequent development of dangerous or unsanitary conditions on the

premises that materially affect the life, health and safety of the tenant They provided reasonable notice of the defects to the landlord A failure to restore the premises to habitability.

3. Uniform Residential Landlord and Tenant Act Waivable by agreement Limited repair and deduct opportunities for tenant except in emergencies.

4. Damages of calculating for Warrant of habitability: Difference between agreed rent and fair value of premises in the rundown

condition Difference between what premises would have been worth if they had been

in the condition warranted Percentage reduction in rent, estimated by court

5. Rent Withholding- 2 different techniques True rent withholding: allows T to deny rent to LL by refusing to pay it or by

paying in escrow Offset withholding- T refuses to pay, then when LL attempts to oust, T seeks

offset against the unpaid rent a claim for damages for reach of implied warranties

o Retaliatory Evictiona. Building Monitoring Systems Inc. v. Paxton

1. Plaintiff brought unlawful detainer action against defendants after they complained about the condition of their apartment. Plaintiff did not repair the conditions and defendants complained to the Health Dept. Plaintiff then sent them eviction notice.

2. HOLDING: retaliatory eviction is a defense in Utah.3. Rule There is Retaliatory Eviction if:

There is a protective housing statute insuring proper conditions of housing The landlord is in the business of renting residential property The tenant is not in default on lease obligations The landlord is motivated due to the tenant complaining about a protective

housing statute The tenant’s complaint was made in good faith and with reasonable cause.

4. Landlord: Can still evict / not renew a lease for good grounds and can refuse for no

grounds at all but CAN’T evict or refuse to renew due to housing complaints. Can’t evict after complaint for a new and valid reason until tenant is given

time to find new housing. Grace period while tenant finds new housing.

5. Security Deposit Regulation Unintended consequences of strict regulations

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Require landlords to have expensive counsel Raises rent

Must give itemized list of costs taken from security depositb. Garcia v. Thong

1. Defendant rented an apartment from plaintiff and was not returned his $200 security deposit, or an itemized deduction list after he terminated his tenancy. Plaintiff sued him for $1763.00 for damages to the apartment. Defendant denied responsibility and counter claimed for his security deposit.

2. HOLDING: the withholding of an entire security deposit from a tenant and not sending an itemized deductions list is not consistent with the legislative intent and statutory purpose of NMSA 47-1-18.

3. RULE: If owner fails to provide written statement of reductions within 30 days they shall: Forfeit right to withhold any portion of deposit Forfeit right to any counterclaim in action to recover deposit Be liable for court costs and attorney fees Forfeit right to independent action against resident for damages

o Landlord Tort Liabilitya. Borders v. Roseberry

1. Tenant’s social guest slipped and fell on icy steps of the property caused by a lack of guttering on the roof, which the landlord and tenant were aware of prior to possession and the landlord was intending to repair.

2. Traditional Rule: No LL liability after exclusive possession has passed.3. Rule: R2d §362: A lessor can be held liable for injuries suffered by a lessee or

guests of the lessee when the lessor attempts to make repairs and fails to exercise reasonable care and the tenant neither knows nor should know that the repairs have been negligently made.

4. Exceptions (Majority Rule is if you can find one of these exceptions) ONLY FOR PERSONAL INJURIES If landlord knows of a condition and doesn’t disclose; requires landlord to

reveal info of latent effects; patent defects will “speak for themselves” Conditions dangerous to persons outside of premises; applies to innocent

public and landlord where dangerous condition existed at the time of conveyance; doesn’t apply if tenant put it there.

Premises leased for admission of the public (restaurant, museum etc…); landlord needs to inspect and repair premises prior to conveyance to prevent harm to general public; not social guests, only general public.

Parts of land that are still in lessor’s control which lessee can use (common areas); landlord can use it as opposed to not having exclusive possession

Where lessor contracts to repair; contract defines time of exclusive possession; has to be in contract, not a general obligation.

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Negligent Repairs by Lessor; landlord attempts to repair; if it’s a false repair, landlord is liable for negligent work; becomes a latent defect and landlord is liable.

5. Minority Rule: Ordinary negligence instead of a list of factors Usually has same result as a list of factors Applies to residential leases

6. Commercial Leases Landlord not as liable in court No ordinary negligence for commercial landlords “Hold harmless clauses” in contract

Despite rule of law, landlord not liable Should be in contract to protect landlord Tenant will push back

b. Landlords Liability for Criminal Act1. Traditional Rule: No liability for criminal act in commercial property common

areas2. Modern Rule: Absent any lease provisions, landlord liable for criminal acts on

premises Landlord can put provisions in the contract

o Rent Controla. Pennel v. San Jose

1. City of San Jose enacted a rent control ordinance that allows a hearing officer to consider among other factors, the “hardship to tenant” when determining whether to approve a rent increase by a landlord.

2. HOLDING: the “hardship to tenant” clause is not unconstitutional.3. RULE: Price control is unconstitutional if it is arbitrary, discriminatory, or

demonstrably irrelevant to the policy the legislature is free to adopt. A legitimate and rational goal of price or rate regulation is the protection of consumer welfare. Is the hardship clause a taking?

Takes a public good and making a private landlord provide that public good

Price controls are okay if Used to defeat monopolies Discrepancy between supply and demand in the market for a certain

product Protection of consumer welfare

o Discrimination In Housinga. Fair Housing Act of !968

1. Can’t discriminate on sex, natl. origin, race, color, religion2. Includes mistakes; mistake is not a defense

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3. Amended 1988 Adds age and handicap

o Exception is Retirement communities Most leases excluded children

4. 1988 Ammendment to act added handicapped and age to protected listo Assignments And Subletting

a. Assignment- entire interest, all of the termb. Sublet- partial term, partial interestc. Privity of Estate- liable to perform covenants of leased. Privity of Contract- bound by contractual promise with the landlorde. ACS v. Newman

1. Newman assigned a grocery store without permission of LL (ACS). When ACS found out they told Newman they could not assign without permission, could only sub-let. Newman then changed assignment to sublease but ACS terminated anyway. Newman brings suit.

2. Rules: Assignment: when transfer is for the entire balance of the unexpired term

under original lease on exactly terms with no reversionary interest Sublease- when transfer is for a shorter period of time than original lease

and is on terms materially different that main lease or if there remains a reversionary interest.

3. Holding: Majority view: an assignment without permission (when required) is still

valid but once its created then LL has right to eject Tenant. Minority view: an assignment requiring permission but made without

permission is void from the start because it was never legal.4. Privity of estate

Relevant party has all interests the landlord has relayed Assignee has it because it is a full transfer

5. Privity of Contract Relevant party bound by contractual promises in the lease Tenant keeps it, assignee doesn’t get it unless landlord agrees

6. Examples Sublease

Subleasor keeps both w/ Landlord Sub lessee has neither w/ landlord

Assignment Assignor keeps privity of contract; loses privity of estate Assignee gets privity of estate; does not get privity of contract Assignor is a surety of the assignee

Assignor is responsible for any breaches by assignee

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7. Landlord must have privity of estate or privity of contract in order to sue8. Suretyship can end:

Novation by Landlord Release by the landlord of the tenant-assignors relationship and

passed to new assignee Takes away ability to sue assignor on privity of contract

Decrease obligations of assignee If rent decrease is significant to assignee it will be an implicit release

of assignor from privity of contract Increase of responsibility of assignee

Courts are splitf. Kendall v. Pestana

1. The lease provided that written consent of the lessor was required for assignment. Defendant (lessor) refused to grant permission to assign unless he could increase rent

2. HOLDING: an approval clause in a lease agreement implies an obligation to withhold consent only under reasonable objection.

3. RULE: Both the policy against restraints on alienation and the implied contractual duty of good faith and fair dealing militate in favor of adoption of the rule that where a commercial lease provides for assignment only with the prior consent of the lessor, such consent may be withheld only where the lessor has a commercially reasonable objection to the assignee or the proposed use

4. MINORITY VIEW: where lease provides for assignment only with prior consent of lessor, such consent may be withheld only where the lessor has commercially reasonable objection to the assignment even in the absence of a provision in the lease stating that consent to assignment will not be unreasonably withheld.

5. MAJORITY VIEW: If LL has wrote in the lease that he may withhold right to grant permission of transfer, then he may do so. reasonableness requires good faith and fair dealings. reasonable for owner to want to charge more

6. Notes: Court finds implied reasonableness unless it is restricted by contract Lessors will include right to refuse permission w/o cause Refusal to permit assignment doesn’t affect right to sublease

o Terminationa. Fixed Term

1. Surrender and Acceptance (leasee surrenders)2. Landlord releases property to lessee (eviction)3. Action of law (condemnation)

b. Tenancy Of Sufferance1. Must have hold over after fixed tenancy ends2. Landlord demands removal

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3. Landlord turns into periodic4. Tenant is a hold over

c. Tenancy At Will1. Reasonable Notice

d. Periodic1. Ends at the end of another periodic period, either one month from notice or end

of next period. (p. 582)e. Davidson v. Kenney

1. LL did not properly serve T a notice of lease termination. Tenant remained for 2 months after faulty notice given. LL attempted to recover for unlawful retainer.

2. HOLDING: plaintiffs did not give adequate notice to vacate the premises.3. Rule: Unlawful detainer- when person willfully and without force holds over

lands and other possessions after the termination of the time for which they were demised. Statutory Rule of Notice to Vacate:

Notice to vacate must terminate the occupancy on the day of the next month from when it is served on the day the occupancy began. (Must state the date of vacating the premises in the notice in accordance with the rule)

Restatement Rule on Notice to Vacate: (Majority View) If the date stated in the notice is not the end of a period or is too

short a time before the end of a period, the notice will be effective to terminate the lease at the earliest possible date after the date started. (Will end at the end of the next month even though not explicitly stated in the notice)

4. A notice should contain: Statement terminating tenancy Description of the premises Reference to time of termination (either specific date or end of the next

period) Date of notice Signature of party

5. 2 possible times in which eviction may occur from date of notice: payment period- extend through one payment period

Example: LL gives notice of March 15. Must be out April 30 one full period from date of notice

Example: LL gives notice March 15. Must be out April 15.f. Summary Eviction Statutes

1. Majority View- Mandatory Judicial Proceeding: Either by FED or UD statutes or judicial proceeding require LL to resort to judicial remedy to evict tenet.

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Reason: Because LL can obtain possession very quickly and the LL evicting the T himself is unnecessary. Helps avoid confrontation. Plus some states have statutes protecting the T.

Summary Eviction Procedure: Allow summary proceedings in lieu of direct physical proceedings Only decides whether the tenant should be evicted or not; speedy

to avoid physical ejections Landlord brings case; tenant gets notice Tenant can bring other claims in another forum Summary eviction is quick and limited to avoid self-help and to

prevent landlord losing money due to the process being strung out.2. Minority View- English Rule or Peaceful Self Help- Some states allow self help

but degree of force varies. Usually LL may only use peaceful means. English Rule is idea that LL can use all necessary force to evict.

g. How Landlords Can Sue1. Suing in detainer- after a holdover, LL sues to eject2. Suing in ejectment- person never had right to be on land to begin with. LL sues

to eject.h. Ways In Which Landlord Can Recover Possession From Tenant

1. Leasehold terminated by expiration2. Proper notice when there is no expiration date3. Exercise of right of entry4. (breach of a promise T or LL does not allow other to breach their promise)

i. Iowa Code Annotated1. Action can be brought to re-enter under the following circumstances:

T has by force, intimidation, fraud or stealth entered upon the prior actual possession of another in real property and detains the property

Lessee holds over after termination lease Lessee holds contrary to terms of lease Where lessee continues possession after a sale by foreclosure of a

mortgage, or on execution, unless he claims by a title paramount to the lien by virtue of which the sale was made, or by title derived from purchaser at the sale, in either of which cases such title shall be clearly and concisely set forth in the D’s pleading.

For nonpayment of rent When Defendant or defendants remain in possession after the issuance of

valid tax deed.j. HYPO:

1. month to month tenant paying $600/ month. T does nothing wrong but LL has Tenant willing to pay $800/month. LL serves notice on January 15 to vacate by Feb 15. On Feb. 16, T things Cook County Ordinance that you can kick T out in winter exists.

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ANSWER: Iowa Code in existencek. Lindsay v. Normet

1. Appellants file suit seeking a declaratory judgment that the Oregon Forcible Entry and Detainer Statute (FED) were unconstitutional and an injunction against its continued enforcement.

2. FED process: If LL brings action for possesion3. LL must give proper notice to T

Service of complaint must be more than 2 and less than 4 days before the trial date

Tenant may obtain a 2 day continuance A longer continuance may be granted if T posts potential rent to be due Tried by judge or jury Only award LL can recover is possession T must pay contested amount to court, if LL wins, court give $ to LL. IF LL

fails in his claim, LL cant get paid. If Tenant appeals- he must pay twice the rent from the time of the appeal to

commencement of the action T cant claim LL fails to maintain premises LL cant recover back rent that is due.

o Abandonment And Surrendera. When Tenant quits the premises before the end of the lease, without the intent to

return, this is abandonment. Essential this is an offer by T to LL to terminate the lease. LL has 3 choices:1. Re-Enter and Release: Accept offer to surrender by taking back premises for the

LL’s own account2. Ignore and Enforce: Do nothing and therefore not accept the offered surrender

Most jurisdictions have gotten rid of ignore and enforce.3. Re-enter and Mitigate: re-let the premises on the T’s account. Called Mitigation.

Original T still liable to LL for any shortfall in rent with new Tenant. Most beneficial for society and LL. If LL attempts to mitigate then T is on hook for rent. Problem: if LL can find

new T then court may deem he didn’t try and LL re-entered and released meaning LL cannot collect.

b. Austin v. Palisades1. Palisades building a office and Hill County signed a 5 years lease. Hill County did

not respond to Palisades letter demanding one representative to dictate their preferences. Palisades sues for anticipatory breach of contract.

2. Traditional View: Common Law approach- No duty to mitigate3. Modern Trend: LL has duty to make objectively reasonable efforts to mitigate.

But cant sue before rent is due.4. RULE: When suing for anticipatory repudiation, the landlord has a duty to

mitigate.

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When exercising the option to maintain the lease in effect and sue for rent as it becomes due following the tenant's breach and abandonment, the landlord has a duty to mitigate only if The landlord actually reenters, or The lease allows the landlord to reenter the premises without accepting

surrender, forfeiting the lease, or being construed as evicting the tenant.

A suit for anticipatory repudiation, an actual reentry, or a contractual right of reentry subject to the above conditions will therefore give rise to the landlord's duty to mitigate damages upon the tenant's breach and abandonment.

The landlord's duty to mitigate requires the landlord to use objectively reasonable efforts to fill the premises when the tenant vacates in breach of the lease.

o Fixturesa. Chattels that were at one point movable, personal property that get attached to real

property.1. Cannot be removed if it would hurt the property to remove it2. Cast to be fit to the property

b. Criteria1. Actual annexation to the realty or something apputenant there to2. Appropriation to the use or purpose of that part of the realty with which it is

connected3. The intention of the party making the annexation to make the article a

permanent accession to the freehold- this intention being inferred from the nature of the article affixed, the relation and situation of the party making the annexation, the structure and mode of annexation and the purpose or use of which the annexation has been made.

c. Caveat to Tenant Fixtures- called trade fixtures1. Special rule for commercial fixtures: if lessee creates something that fits for

their specific trade, they can remove the fixture as long as they return property to original condition

d. Condemnation1. Govt. entities compel landowners to transfer them title to, or some interest in

land. Called: Condemnation, Eminent Domain, or Taking.

2. Partial Condemnation Pro-rate rent; some states don’t pro-rate

3. Full Condemnation Lessee absolved of obligation to pay rent Bonus for tenant here tenant was paying less then the full market value; can

collect the difference for rest of market period.

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XIII. Covenants Running With Lando Running At Law

a. When someone who is not the promisee is allowed to enforce a contract with land or one who is not the promisor is bound by the contract

b. Analysis for whether the Covenant Runs At Law:1. What is the covenant’s burdened land and benefitted land2. Is the burden associated with any property interest3. Has there been a relevant transfer of property4. Does the burden run?

Is there intent to create a restrictive covenant that runs Many jurisdictions may use implied intent as well

Does the benefit/burden touch and concern the associated property interest?

Is there privity of estate between the current property owner and the original covenanting party. Vertical privity: WHOLE interest is transferred.

Severed property is not transferring the entire estate Horizontal privity

c. Touch And Concern1. Unrelated/related/inextricably bound

If you have to be on the property it ALWAYS T & C’s Paying rent T&C’s

2. Effect on value of relevant property interest3. Part of overarching land-use plan4. Bigelow test (from Abbott): Are the party’s interests as an estate holder altered

by the covenantd. HYPO:

1. T has leasehold estate and the repairs are condition of leasehold. Can only be done to property or leasehold. LL has a reversionary interest underlying property interest that its connected to the land. T assinges to T2. Does it run with land?

2. Intent? Yes, duties are stated in the leasehold.3. T&C- Yes, burden is making repairs on property. Benefit is relating to an interest

in the property.4. Privity of Estate

Horizontal Privity Initial transfer of a property interest that includes a promise; restrictive

covenant Ex. Landlord → Tenant

Privity of Contract and Horizontal Privity of Estate. Vertical Privity

Additional transfers on either side of the horizontal privity

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Secondary transfer of the whole of the interests of one of the parties to the vertical exchange

Vertical can be on tenant or landlord side Transfer of ALL of one parties interests.

e. Abbott v. Bob’s U-Haul1. No express assignment to one of the companies using the same property and

the owner.2. Rule: Implied Assignment arises from the lease and forms basis of running of

covenants so as to burden or benefit the assignee. T&C- because it was about paying rent. T&C- Bigelow test

3. Class Notes Obligation to pay rent runs with the land If landlord sells is there a continuing obligation?

Some say no Some say yes, under privity of contract Some say yes to things LL could affect.

Assignee can enforce benefits that run; assignor cannot.4. Running of tenants covenant to pay money

Some say unless LL has promised to use money on land, doesn’t run with the land

If money affects property, should run with the land5. Landlord can:

Forbid assignments or Submit to assignment but make express assumption of all covenants

whether they run with the land or not (can always go after tenant/assignee)6. Duty to refund Security Deposits doesn’t run with the land.

f. When LL Sells: Courts Split if keeps liability 3 Opinions1. Original LL off the hook completely2. Original LL is a surety but new LL also liable3. If obligations are physical, original LL remains liable. Otherwise original LL is not.4. Quiet enjoyment and habitability do not stay with LL, unless breach is because

of LL’s conductg. Novation

1. Agreement by LL to release T from agreement of propertyh. Gerber v. Pecht

1. Gerber leased to Pecht. All assignments from there needed Gerber’s permission. Pecht assigned to Moskowitz and Mosko assigned to Christensen. All done with Gerber’s permission. Christensen defaulted. Gerber sues all 3. Assumption clause said that assignee will assume all obligations of the assignor whether convenants run with land or not.

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2. RULE: Principal tenant is a surety as long as leasehold lasts. Nothing can be done to get off the hook; can’t get out of a deal with a principal party via agreement with 3rd party.

3. When T2 reassignes, he would not be liable for matters accruing after reassingnment. T2 in this case is Moskowitz. Only reasons Mosko is liable here is because of assumption clause.

i. Assumption1. Agreement by which an assignee will assume all the obligations of the assignor

whether covenants run with the land or not. (Principal tenant remains a surety) Assumptions end with leasehold

2. If Landlord says an assignment or sublease must have permission: MAJORITY; assignment valid even without consent.

Courts Don’t like to restrict land and alienability. Unless landlord explicitly has right of entry LL has to sue the principal

tenant for damages.3. Landlord could include a subletting/assigning fee if done w/o permission, can be

waived by LL. (Liquidated damages clause)4. If no clause w/ fee LL may still enjoin a subtenant if the subtenant is behaving

illegally or a private or public nuisance. (Clause is much better). Injunction is not damages

5. Running Covenants Without them there wouldn’t be efficient tenancy markets Landlord can’t watch every transaction like a hawk

6. Assumptions are better than running covenants for 2 reasons: Apply to all T’s covenants in the lease not just those that T&C. An assumption agreement survives a reassignment by the assignee, while

running covenants do not.7. Enforcement of implied covenants by subtenants;

If warranty of habitability was undermined a subtenant could get injunction to require repair.

8. As a practical matter this means Subtenant cant get damages for breaches of covenants made by LL in

master lease LL cant recover damages against subtenant for breaches of covenant made

between original T in master lease LL can terminated lease, however If LL breaks an implied covenant, T can get an injunction or damages

j. Tippecanoe v. Kimco1. HOLDING: The restrictive covenant restricting use of the premises, as grocery

store is enforceable.2. RULE: A restrictive covenant that did not originally violate public policy can

begin to violate public policy if the surrounding area changes in ways that are so

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radical in nature that the original purpose of the covenant has been defeated. If the conditions that made the covenant feasible at one time no longer exist, the courts will not enforce the covenant.

3. A determination whether a restrictive covenant is enforceable must be made on a case-by-case basis. There is no hard and fast rule regarding when the changes are sufficient. In determining whether radical changes have occurred, a court may consider changes outside the restricted area, but the weight attributed to these changes should not be as great as that accorded changes that have occurred within the restricted area.

o Covenants At Law Between Fee Simple Ownersa. Best time to create covenants for Fee owners is when community is developing or

before it has begun to develop.b. HYPO: 9 houses in a culdisack, all owned in fee simple. All worth $200K. One owner

realizes he can sell his property for the sale of a Quickie Mart and by doing so, raise his property value to $250K. However, all other owners property value drops to $100K. 1. Originally neighborhood worth $1.8M, now its only worth $1.05M2. So creating restrictive covenants before creation of neighborhood stops

everyone from building a quickie mart.c. Runyon v. Paley

1. Gaskins owned land. Conveyed some to Runyons, Paleys and her daughter. All conveyances included a restrictive covenant that you couldn’t build condo’s. Paley’s wanted to build condo. Gaskins died.

2. RULE: In order to enforce a restrictive covenant as one running with the land at law, the party seeking to enforce the covenant must also show that he is in privity of estate with the party against whom he seeks to enforce the covenant

3. Court said that Runyons don’t have privity with Paleys because covenants all arose from one large piece of land. Because Runyons bought land first then the Runyons land is not included in Paley’s covenant and therefore they have no burdened land. But daughter has horizontal privity with Paleys so she can enforce.

d. 4 Views That Constitute Horizontal Privity1. A relationship of tenure. Like the traditional LL-T relationship2. Simultaneous interest. Ex: If A and B own adjacent lots then A gets a easement

to drive over B’s land and they enter in to a covenant about the maintenance of the lot then both parties have simultaneous interest in B’s lot and covenant concerns the interest.

3. Instantaneous privity- if covenant is pleased in (or executed as part of the same transaction as) a deed conveying one of the effected parcels of land or some interest in one of them

4. Some courts do not require horizontal privitye. Vertical Privity

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1. If benefitted and burdened parties have transferred the land, the vertical privity exists between assignor and assignee

2. 3 situations can prevent enforcement transfer of less that full estate adverse possession 3rd party beneficiaries

Most states allow 3rd party beneficiariesMust be clear who they are so it is known how burdened they will beFor burden to run there must be vertical and horizontal privityMore strict with burdenLess strict with benefitCourts may set aside privity if beneficiary is suing for equitable relief as opposed to money damages.

f. If suing in equity and not at law then you can only seek injunctive relief and not money damages

g. Covenants not to compete do not run with the landh. Midsouth Golf v. Fairfield Condo Association, Inc.

1. Plaintiffs seek to impose recreational amenity fees on the defendant as a real covenant. Defendants’ argue that it does not run with the land

2. HOLDING: No, a covenant to pay amenity fees, which allow a license to use the amenities, does not run with the land.

3. RULE: In order for an affirmative covenant requiring the payment of fees to run with the land it must provide for an easement and be directly connected to the property. A license fee does not touch and concern the land, as opposed to a fee for

an easement. Affirmative covenants are held to a more strict analysis of running with the

land. Negative covenants typically run with the land.

4. Property (parks and common areas) owned by the Homeowners Assn runs because the owners are burdened. Golf course and marine are owned by 3rd party and the owners only had a license to use them so they don’t touch and concern the land. License is only a right to use and can be revoked. An easement is a property interest to use.

5. Affirmative covenant to pay money (other than rent) runs with the land if it is an easement. Because an easement touches and concerns the land they are paying for AND their own land.

6. Affirmative covenants can run at law (paying rent)i. Three Forms of Common Interest Communities

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1. Planned unit development- each owner holds title to his dwelling unit. Common areas owned by owners association with all member granted easements to use. Sometimes common area owned by unit owners are Tenants in common

2. Condominiums- Individual ownership of apartments. Each owner has undivided fractional share of the common areas as Tenant in Common. Owners assoc has maintenances responsibility but doesn’t own.

3. Cooperative Apartment- Owners Association holds title to entire project. Each unit owner has share of stock in project. And right of possession to dwelling unit.

o Equitable Servitudesa. Restrictive Covenants in Equityb. Must Show:

1. Intent2. Touch And Concern

Exec 3rd party Exec in gross

3. Notice Constructive Actual Notice requirement only applies to the burdened property

c. Only Remedy Is An Injunction, No Damages1. Allows backfence agreements between neighbors who never owned each

others land2. 3rd party beneficiaries can gain enforcement as long as burdened party had

notice of should know who 3rd part beneficiaries are3. Some courts have recognized in gross beneficiaries- beneficiaries who have no

connection with the benefitd. Perry v. Davis

1. Perry and Adams are neighbors that have covenant that both agree never to have cats. Adams dies and Davis takes house and has cats. Perry tries to enforce covenant.

2. Covenant runs with land in equity3. Rule: 3 ways to give notice:

Actual knowledge (being told of the covenant when purchasing) Apparent from the appearance of the house (everyone in a neighborhoods

house looks a certain way) Documents of covenant recorded in the public records (deed and title chain) Notes ii and iii are constructive notice while note I is actual notice

o Common Plana. Common Plan consists of:

1. A group of lots or parcels that are

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2. Clustered nearby on another and3. Most or all of them are burdened by similar or identical covenants

b. Everyone in common plan can enforce covenant on all others on the landc. 4 District uses of Common Plan concept:

1. CP defines extent of benefitted land. Land outside CP is not benefitted2. CP allows lots already sold by developer to others to be benefitted land even if

sold before covenant imposed3. CP allows courts to imply a covenant which had no express covenant4. CP (as carried out by actual or visible construction) gives notice of implied

covenants)5. Implied burden and benefit are often labeled Implied reciprocal neg

easements/restrictions.6. In CP if a purchasers deed does not have a covenants bc of error and

subsequent purchaser buys that purchaser needs notice (Act or Con)7. If a developer intends to make a CP it does not start until he actually puts

convenants in a deed. IE if 2 lots are sold and have no covenants and then 90 lots are sold with them and those 90 are a CP. The first 2 cannot enforce or be have an implied covenant

o Interpretation, Amendment, and Termination of Covenantsa. If its not clear in the covenant, then the language will be interpreted narrowly.

Tends to be interpreted against the writer because the writer had the opportunity to write it and if its not clear then its their own fault.

b. Traweek v. Lincoln1. Traweek placed a mobile home on Lot 21 and his neighbors are attempting to

enforce a restrictive covenant that says “no structure shall be erected, altered, placed or permitted to remain on any residential lot other than a single family dwelling not to exceed 2 stories in height and appropriate out buildings.”

2. Only if the intent of the covenant is clear and unambiguous will it be given effect. Where the language in a restrictive covenant is ambiguous, its construction

will not be extended by implication or include anything not plainly prohibited, and all doubt and ambiguities must be resolved against the party seeking enforcement.

3. 2 standards which Rest Covenant are judged: Reasonableness Standard- court independently reviews and personally

decided if reasonable. Should be construed in favor of land owner. If one covenant on the land has ambiguous writing, it does not mean

entire covenant in ambiguous. Business Judgment Rule- as long as there is a plausible reason for the

restrictive covenant and doesn’t violate the constitution then the court will allow the terms of the covenant to stand

4. Most courts distinguish between construction and use:

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If there is only a covenant restricting commercial buildings in the neighborhood, then someone may build a regular house and run a commercial business out of the house. That is a legitimately within the restrictions of the covenant.

c. Pietrowski v. Dufrane1. Plaintiff is suing the defendants to enjoin them from building a second two-car

garage on their lot when the restrictive covenant in place restricts the lots to one family dwelling and one 2 ½ car garage. Plaintiff and other lot owners have additional sheds on their lots.

2. Rule: Ways in Which Covenant Can Go Unenforced or terminated: Unclean Hands- one who is trying to enforce is also in violation.

Depends if it’s a material violation Character of Neighborhood has changed- character of neighborhoos has so

changed as to make it impossible to accomplish the purposes of the covenant

Government Intervention by eminent domaino Must be compensated

Waiver Doctrain- if no one attempts to enforce the covenants in the face of a substantial number of violations then the neighbors have waived their right to enforce the covenant. Express Waiver Reasonable person could conclude it was abandoned

laches- failure for unreasonable time to assert a known equitable right to the prejudice against who right may be asserted against

estoppel- neighbor lies to neighbor and says they wont enforce covenant then later does after builder has erected building.

Adverse Possession: Creates clean title and terminates all encumberances By terms of covenants: if has a certain period it runs Merger: when benefitted and Burden are same person Release: written realease of burden by benefitted party

d. HYPO: if property bordering a neighborhood with a Restrictive Covenant is built up as commercial, the neighborhood asa not change enough to abandon RC’s

e. HYPO: If government builds ahighway through the middle of the neighborhood and no one on the neighborhood abandons the RC’s, they are still unenforceable because the character of the neighborhood has changed

f. Original Developer Power1. Can enforce so long as they still own vacant lots2. Developers without ownership has occasionally successfully enforced covenant

because the neighborhood is the developers model neighborhood and it makes him looks bad when the neighborhood goes to shit.

g. AMENDMENTS1. Covenants, in general, need 100% vote in order to change

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Exceptions when there is a mechanism written into the covenant that allows less than a 100% vote

2. 3 Restrictions to Amendments the instrument creating original restrictions must establish both right to

amend such restrictions and method to amend right to amend such restrictions implies only those changes contemplating a

correction, improvement or reformation; rather than complete destruction amendment may not be illegal or anti public policy

3. Amendments must be: Reasonable and in good faith Must effect all lots uniformly

4. If developer reserves right to amendment he must follow same above guidelines5. Courts usually uphold architectural review boards to build or not build. Courts

look at developer changes more thoroughly than by homeowners.6. If courts decide to tear down a building:

it must be constructed in known violation of the covenant incompatibility with the rest of the neighbors is severe

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XIV. Easements and Profitso Easements- allow some use to be made of the burdened lando Profits- allow some substance to be severed and removedo 2 Kinds of Easements and Profits

a. Appurtenant1. Signifies that an easement is attached to and a part of the right of possession of

its dominant estate.b. In Gross

1. benefits the holder of the easement personally and no in connection with his ownership of a specific parcel of land. Cannot pass with title because no dominant tenant to which they are appurtenant if they pass title. Commercial Personal

c. Courts prefer: Appurtenant Easements In Gross Profits

o Millbrook Hunt, Inc. v. Smitha. The Hunt seeks a declaration that they have an easement and to enjoin Smith from

interfering with their use. Smith moves for summary judgment dismissing the complaint on the grounds that the Hunt, at most, has a revocable license, which he terminated

b. RULE: The mere labeling of an interest as an easement does not necessarily make it an easement; it may be a license.1. A license does not imply an interest in land, but is a mere personal privilege to

commit some act or acts on the land of another without possessing any estate therein.

2. An easement implies an interest in land ordinarily created by a grant, and is permanent in nature.

3. To determine the true character of an interest, a court must examine the nature of the right rather than the name given to it by the parties.

c. Class Notes1. Just because agreement says “easement” doesn’t mean it is.2. Easements can’t be revoked at will3. License: requires permission, revocable

Ex. letting plumber into your house; can ask him to leave Once there is an agreement you start to move away from revocability Buy a seat at a ball game

Revocable if you cause trouble Reserve right for no reason at all

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If kicked out and not your fault you can sue for contract reasons but no property interest, no lease.

4. Most easements affirmative5. Negative easement exists for light air and view

Ex: when you own the house next to the guy who owns the beach front property. You buy an easement for the “beach front guy” not to be able to build high enough to block your view of the beach. That’s a negative easement.

6. Conservation Easements- are between owner and conservation group. Can be passed from owner to purchaser. Organizations are serious about these.

o Granta. when you are the servient property and you are allowing the dominant to come on

to your property and use the easement. Grant is how you create the easement.1. Can be granted for any reason and no prior property interest required2. Doesn’t have to be paid for3. Can be non exclusive or exclusive but courts prefer non exclusive because the

exclusive holder of an easement trends more toward actual ownership of the property.

o Reservationa. Is owner severing his land and the owner reserves right to go on sold property

1. Only arises when land is being granted out of a larger parcelo Driveway Easement Grant On LegalEase

a. Identify the grantor and what the grantor is grantingb. Servient tenement is grantors landc. Is there a dominant tenement?d. Appurtenant or in gross easement?e. Need specific informationf. Paragraph 6 is giving scope of the easement

o What To Include In An Easementa. Identify grantor and granteeb. How long does it extend, how long does it last

1. Assume perpetual easement unless written duration limitc. Grantee will want to make sure there is info on where to recordd. Explain exact location and specifications of easemente. What sort of maintenance to be done on the easement

1. All vehicles allowed so do they need to maintain, pave, etc….2. Whose responsibility is it to maintain the easement3. Does grantee have right to pave

o Ricenbauw v. Krausa. Ricenbaw’s predecessor (Hannah) laid down tile on Kraus’ predecessors’ (Knutson)

land to drain out a pocket of land that was on Hannah’s land. The permission was

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given orally, with the understanding that Knutson’s farming of the land would not be bothered and Hannah would maintain the ground after laying the tile. Kraus plugged the drain, and Ricebaw sues.

b. 2 ways a license can become a irrevocable license (aka equitable easement- wasn’t a easement there but courts found one there based on the circumstances):1. no writing, just an oral agreement

intent to creating but no formalities in writing to create. Reliance and expenditure on the oral agreemtn

2. a license existed reliance on the license expenditures on the reliance knowledge and passive consent on grantor of license.

c. irrevocable licenses lasts for a reasonable time until the expenditures are used upo Easements By Implication

a. Implication- suggest easements may be created with a written conveyance even though there is no express language to that effect

b. 3 Types:1. easement implied from prior use:

3 necessary elements dominant and servient tracts originated from common grantor the use was in existence at the time of the severance the use is apparent, continuous and reasonably necessary for the

enjoyment of the dominant tract once created its permanent

2. easements implied from necessity Requires:

Unity of title Dominant estate has been severed from the servient tract Reasonable necessity existed for such right of way at the time the

dominant parcel was servered from the servient tract 2 Views

Majority: true or absolute necessity Minority: reasonable necessity

3. easements implied from a plat- a plat is a map that designates subdivisions in a neighborhood plat. If parties forget to write down express permission, easements are implied by plats. 3 views

broad or unity rule- owner has easement to all parts of all ways shown in plat

intermediate rule- owner has access easement to all plated ways reasonably beneficial to use of his land

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narrow and necessary rule- owner has private easement over only his abutting street and connecting streets to public roads.

c. Boyd v. Bellsouth1. The property owner built a fence on the boundary line between its parcel and

the storeowner's parcel. The fence cut off access to a driveway. The storeowner argued that she had an easement by necessity, and pre-existing use.

2. Implied from prior used. Otero v. Pacheco

1. The neighbors built two homes on the lots, which were served by one sewer line. The property owners, who purchased the second home, brought the action to recover amounts paid in ad valorem taxes. The trial court found in favor of the neighbors, holding that the neighbors held an easement over the property owners' land for purposes of the sewer line, and that the property owners took title subject to that easement.

2. HOLDING: Yes there is an implied easement. Holding: servient owner must have notice of easement

A bona fide purchaser does not take subject to an easement unless he has actual or constructive knowledge of its existence. However, the law charges a person with notice of facts which inquiry would have disclosed where the circumstances are such that a reasonably prudent person would have inquired.

3. Implied by prior usee. Hurlocker v. Medina

1. The two contiguous parcels of property were at one time part of the same tract of land. They were divided in 1957, but were in common ownership between 1963 and 1984. A conveyance in 1984 left one parcel without access; plaintiff acquired that parcel and filed suit against defendants seeking to impose an easement by necessity on their adjacent lot.

2. HOLDING: Yes, there is an easement of necessity on defendant’s property for access to plaintiff’s landlocked property

3. Necessity only exists so long as there is a necessity.4. If you landlock yourself by selling all the land around you, then you will not be

given a easement by necessityo Prescriptive Easements

a. Prescriptive easements are different thatn adverse possession in one way:1. Must continuously use land in way you want it to be used

EX: if you drive over land twice a day then you obtain a prescriptive easement for the land to drive over twice a day

2. Exclusive rule for adverse possession is not in prescriptive easementsb. Drake v. Smerch

1. Permission is usually presumed for vacant lots. Use is generally presumed to be permissive

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2. Rule: Prescriptive Easement is establish by use of servient land that is: Open and notorious Over a uniform route Continuous and uninterrupted Adverse to owner of land With knowledge of owner at a time when he was able in law to assert and

enforce his rights3. Use does not have to be exclusive but person seeking prescriptive easement

must have independent use than publics general use.4. Adverse Criteria:

Not adverse if given permissionc. Shanks v. Floom

1. One party wants to cut off use of his half of a driveway.2. Holding: Court says they both have prescriptive easements on the others land.3. Sheppard argues: Could also be found to be an implied equitable easement

No writing so can be equitable but for prescriptive: Clear expenditure of money Continuous use When they gave each other permissions to use the strips of drive,

they gave each other easements. Not written down so not legal can be equitable

d. Interior Trails v. Swope1. Swopes tried to stop hikers from entering their land. Interior trails sues for

public prescriptive easement. 2. Public prescriptive easement: an easement that develops in private land and

develops in favor of public Needs to be continuous No permission Visible to owner Acting as a member of the public not an individual

3. Rule: Good enough for public prescription even though not one single person could show individual use for necessary length of time.

o Scope of Easementsa. Easements are property rights to use what is someone else’s propertyb. Leasehold exclusive possessory estate for period of leaseholdc. Easement is not possessory, use is allowed to some extent, with some limits aka

scope.d. Scope raises issue of surcharge

1. If easement is expressly defined as able to drive up and down driveway twice a day. Will allow reasonable changes with technology.

2. Dominant estate starts paving a dirt road and builds extra garage and uses a new truck on easement.

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3. Servient owners could object (surcharge) Trespass Injunction

e. Brown v. Voss1. Dominant estate has easement to reach parcel B to now wants easement to

reach parcel B and C. Servient owner objects. Beyond scope of easement.2. Two ways to view issue:3. Does adding lot c cause a surcharge?

Trial court says no indication of any additional use so no objection, no surcharge, still reasonable use. (Equitable analysis.)

(Common Law) Appellate court says that it is a misuse of an easement because it is using easement for purpose other than original agreement. (Formal analysis.)

4. Careful Grantors would: To owners of Lot B for one family dwelling and travel pertinent to use by

one family to the lot. Cannot rent out property on Lot B. Deal with specifics in the grant and supply conclusion. Otherwise courts are forced to rely on reasonableness analysis. If grant is severely restrictive it will still typically hold.

Unconscionability is rarely used successfully Would defeat purpose of grants otherwise.

5. Court holds that expanding Lot B to include Lot C is a surcharge at law. 6. Damages or Injunction

Damages may be nominal Injunction is an equitable remedy

7. Court uses reasonableness analysis and determines no equitable surcharge because there is only reasonable use. Damages but not injunction.

8. Per Se Surcharge- where surcharge in effect when its not necessary to show any facts. Obvious that surcharge is in effect.

f. Subdivision of Parcels1. If lot B was severed into several plots the easement still exists. But if it is used

beyond ways that might reasonably have been anticipated then easement may not exist.

2. Exclusive Easements- do not allow owner of dominant easement exclusive use over owner of servient easement unless expressly written or if use interferes with dominant owners rights.

g. Cameron v. Barton1. Easement deed was lost, easement used for long period of time by many

different dominant tenants for many different reasons. Issue is the scope of the easement.

2. General Easement is found.

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When no specific scope limitation found then scope is the necessary development of use is allowed and can be implied from prior use.

Unless significant overuse other than the historical use then there is no surcharge.

h. Glenn v. Poole1. Gravel Road was used for wood hauling but now used for large construction

equipment and they want to build turnouts onto the main road. Glenn wants a surcharge because easement was overused.

2. To determine if over burden occurred: If such a change in the use had occurred over the adverse possession period (prescription period) then it would have induced action by servient owners.

3. Courts say use is not unreasonable, has been used for commercial use in the past and this was the natural progression of the use. Necessary improvements are fine.

i. Pascedena v. Michigan-California1. A landowner granted an easement to lay water pipes in a five-foot strip of land

to appellant city, then granted another easement to appellee. Appellant sought an injunction and damages for unreasonable interference of the easement, which was denied.

2. HOLDING: No, an easement specifying the location of the burden does not by implication grant exclusive use of that location.

3. RULE: Easements are non-exclusive. Without express indication or grant of an

exclusive easement, there is no exclusivity. When two grants, one is senior and one is junior. First easement is senior.

And senior holder and can sue if interfered with. The junior grant must be considered subordinate if it should ever

interfere with the reasonable use of the prior easement.4. The senior easement holder can do what needs to be done to fix the property as

long as its reasonable at the expense of the junior easement holder5. If commercial easement then easment holder can transfer to third party but

third party cant change the original nature of the use. 2 rules: 1 stock rule: if you gave the easement to 1 company than only one company

may receive a transfer of the easement modern rule: as long as actual activities being used are not surcharged then

you can transfer to as many company’s as you want.j. MPM Builders Case

1. The dominant owner's right-of-way, which provided access to a public way, had three branches, based on old cartways. Before it subdivided its property for development, the servient owner sought to consolidate the right-of-way and improve it, but the dominant owner rejected the proposal.

2. MPM wants to take the three paths into two distinct paths.

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3. Court says that the easement was explicitly three paths and requires permission.

4. Rule: Unless expressly denied by easement, owner of servient estate is entitled to make reasonable changes in the location or dimensions of the easement, at the servient owners expense, to permit normal use or development of the servient estate but only if changes do not: Significantly lessen utility of easement Increase burdens on owner Frustrate purpose from which easement created

5. Another rule is the Wisconsin Rule, which says that you take grant at its word, doesn’t require any additional explicit statement that dominant owner has to give approval for changes.

o Extinguishment of Easementsa. Natural Termination Due To Its Own Terms

1. Easement by necessity only lasts until necessity ends2. Easement with limited duration extinguishes after duration

b. Merger, Cannot Have Easement In Your Own Property1. Once merger occurs, the easements are gone, do not spring back up unless

mentioned in the deed or sale of the servient estatec. Release or Abandonment

1. Constructive- no intent to abandon but court can create intent basaed on circumstantial evidence

2. Actual- no writing just abandonedd. Prescription (Hickerson Case)

1. Can gain an easement by adverse possession2. Can re-prescribe an easement back

e. Eminent Domain/Takingf. Express written releaseg. Estoppel

1. Non-use and behavior by dominant owner indicating they are not going to use it anymore. Ex: oral statement where dominant owner orally tells servient they don’t

want easement. Servient builds pool but easement still exists because only orally given up. Court will enforce estoppel because servient relied on dominants promise to abandon.

h. Simone v. Heidelberg1. Accardo’s had easement over servient land then bought land easement was on.

Then sold both lands separately with no mention of easement in sale.2. Only servient estate can announce easement is reinstated when property is

severed again.

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3. In this case there wasn’t explicit abandonment promise but since a tree so old there was constructive abandonment. So when D built a porch they could claim estoppel.

i. Glosemeyer v. United States1. Rule: An easement granted for a particular purpose terminates as soon as such

purpose ceases to exist, is abandoned or is rendered impossible of accomplishment.

2. Physical taking of P’s property because it went past scope and government kept using it.

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XV. Eminent Domaino 5th Amendment prevents taking without compensationo Purpose:

a. If can be taken at anytime without compensation, why invest anything in land if it can be taken at anytime. (Efficiency argument)

b. One landowner shouldn’t bear the burden that benefits the whole public. (Justice argument)

o Two Primary Takingsa. Physical

1. Actual taking of physical land2. Placing government stuff on the land3. Pay in proportion of taking (whole value for whole taking, part value for part

taking)b. Regulatory

1. No physical invasion2. Govt. makes rules that limit use of the land (conservation)3. If regulations eliminate all value of property then you get compensation 4. For only limited regulation, possibly no compensation5. If 100% of value is taken then its PER SE regulatory taking. If less than 100%

then its regulatory taking.6. Gvnt uses balancing test to determine if someone is compensated for the

taking.o Public Use

a. Post office is obviously public useb. If use is privately run (railroad) but has to serve whole public then it is considered a

common carrier and treated as public use as well.c. Condemnations (urban renewal projects)

1. If neighborhood is blighted, govt. could condemn the blighted area to private parties to refurbish it and sell it to other private parties. Considered public use.

2. What is blighted? Eventually removed as an element. Supreme Court said anything govt. does

is public use. Kelo case. Lots of States rebelled against it.

d. Kelow case- if State says its for public use then its for public use. Most states don’t like, they have stronger public use requirements and must demonstrate that use is public. This is a result of the public being pissed about the Kedlow case

e. Federal Takings clause and there is a State takings claus

Just compensationo What is just?

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