Outline Ziegler - Property

Spring 2012 University of Denver

Following Property: Cases and Materials 8th Edition Cribbet/Johnson/Findley/Smith

I.

ADVERSE POSSESSION
A. General Rule
1) Adverse Possession requires: continuous; open & notorious; exclusive; and
hostile possession,
2) For the requisite statutory period defined by the state
B. Requisite Statutory Period
1) In Colorado
a) 18 years
b) 7 years, in good faith, while paying taxes
2) Current claimants may tack successive possession of land with their predecessors.
(Bullions)
3) Use is determined on the reasonable landowner
C. Actual
1) When no fence surrounding disputed property, then claimant must have actual
occupancy for statutory period. (Palmer Ranch)
2) Occupancy means to exercise the ordinary use of which the land is capable and
such an owner would make use of it. (Palmer Ranch)
3) Grazing cattle on unfenced land is not in and of itself actual occupancy. (Palmer
Ranch)
4) Grazing cattle with a fence is actual occupancy. (Palmer Ranch)
5) In Palmer Ranch, the claimant did not need to know the exact boundaries of the
land they were adversely claiming, when there was no dispute as to occupancy.
(Palmer Ranch).
D. Continuous
1) Seasonal may not be sufficient Was it
E. Open and Notorious
1) Claimants use must be sufficiently open and obvious to apprise the true owner, in
the exercise of reasonable diligence, of an intention to claim adversely. (Palmer
Ranch)
F. Hostile
1) The vendor vendee relationship exception only applies on land included in
permission / under contract, this exceptions does not apply to any adjoining land.
(Sleeping Indian Ranch)
2) All that is required for hostility is that the claimant occupy the property adversely
to the rights of the record holder. (Palmer Ranch)
3) Permission destroys hostility unless the claimant takes appropriate action to
disclaim such permission. (Pope)
G. Exclusive
1) To destroy an adverse claim, the true owner must assert a claim to the land, or
perform an act that would reinstate the owners possession.
2) Exclusive does not mean absolute exclusivity, rather the claimant need only act
as an average landowner would to assert the exclusive nature of the possession.
(Palmer Ranch)

II.

OTHER ADVERSE POSSESSION CLAIMS

A. Boundary by In-Action (Hargrove)
1) Where neither party acts as a reasonable landowner on the claimed property.
2) There are 4 elements to prove in a boundary-by-inaction claim.
a) Boundary must be between two adjacent landowners
b) Claimant must occupy the boundary up to a visibly marked boundary
c) Parties must acquiesce or otherwise fail to act as to the existence of the new
boundary by inaction
d) This action must last for fifteen years (in KY)
3) Prescriptive Easement (Bockstiegel)
4) Adverse
a) All roads over private lands that have been publicly used without objection or
interruption for 20 years are declared public roads.
b) When public use is over land that is vacant, unenclosed, and unoccupied, such
use is regarded as permissive.
c) Use must be part of a pattern, not merely sporadic in nature.
i. Intermittent use over a long period of time is sufficient.
ii. Public use to fishing, hunting and other recreational activities is sufficient
use.
5) Open and Notorious
a) Reasonably diligent landowner must have actual or implied knowledge of the
adverse use and made no objection.
b) Road on a public road map is sufficient, expending public funds for
maintenance
6) Not abandoned
a) Once a public road, it remains so until abandoned.
b) Abandonment requires proof of intent to abandon by official and public acts,
and proof of nonuse.
i. Mere nonuse of the road is not sufficient for abandonment when the public
has not had use for the road.
ii. Construction of an alternative route suggests intention of abandon by an
official act.
iii. Occasional use of a public road for access, in the absence of an alternative
road, precludes abandonment.

III.

LICENSE

A. Licenses allow one party to use the licensees property in a certain way
described.
B. Licenses are revocable at any time
1) When someone expends money, or its equivalent in labor, in the execution of the
license, then the license become irrevocable, and the licensor may enter the land
to maintain such structures. (Stoner)
a) Also called an easement by estoppel.
2) Tickets are licenses whereby the licensee is only responsible to the contract
(refunding the money). The ticket holder holds no rights in the land and thus
cannot demand specific performance, only the refunding of the ticket price.
(Marrone)

IV.

EASEMENTS

A. Easement Appurtenant
1) Benefits a specific piece of land.
a) Dominant Estate is the property which the easement benefits
i. The dominant estate owns his property AND an interest in the property of
the Servient estate where the easement is located.
ii. The dominant owner owns a right in the servient estate to travel upon the
easement and to reasonably maintain that pathway.
b) Servient Estate is the property upon which the easement is located
c) Easement can be used only in connection with the estate to which it is
appurtenant.
2) Easements are usually created by a deed.
a) Where the route of the easement is not specifically spelled out, then the rule of
reason is used to determine. (Sakansky)
i. Dominant estate owner may use the easement in any way reasonable.
Reasonability has time and space elements to it.
Changing needs of owners may create uses that were once
unreasonable to now be reasonable; or vice versa.
b) A covenant or agreement may operate as a grant of an easement if it is
necessary to give it that effect in order to carry out the manifest intention of
the parties. (Waldrop)
c) Exceptions to creation by a deed:
i. Prescriptive Easement
When one simply uses the land as if an easement existed, and
continues for the requisite time.
Similar to Adverse Possession except ownership of the land is not
obtained, only a right to continue to use the easement.
Prescriptive Easements Require:
Open and Notorious Use of the s land,
Adverse to the rights of the for continuous period as required.
Continuous does not mean constant, rather than reasonable to
the users needs
To Defeat a prescriptive easement, the owner can show:
That the use was permissive
Or, the use did not interfere with the landowners use
Easement Appurtenant may be expanded through prescription if it
meets the requirements. (S.S. Kresge)
Never need to draft a deed for an easement, rather you might have to
acknowledge that one exists when drafting a deed for other purposes.
ii. Implied Easement by Necessity
Implied by law to prevent any piece of land from becoming
landlocked, or inaccessible.
Always arises over the last piece of land sold by a common owner
breaking the common ownership of one parcel into two or several
parcels.
Implied Easement by Necessity may lie dormant for years and pass
through subsequent owners. (Finn)

B.

C.

D.
E.

V.

Never draft an Implied Easement by Necessity, however if in this

situation, draft an express easement.
Easement in Gross
1) Not designed to benefit any specific land.
2) Easements in Gross are not revocable (like a license) and may be enforced by a
decree granting specific performance. (Baseball Publishing)
3) Use of billboard was considered to be an easement s it explicitly gave the
exclusive right and privilege to maintain a certain sign on the s wall. (Baseball
Publishing)
Abandonment
1) To abandon an easement you must show:
a) Intention to Abandon (Lindsey)
i. Mere non-use is not sufficient.
ii. But non-use AND acts clearly showing intention are sufficient.
2) Exception:
a) Adverse use by the servient estate owner.
Easements DO NOT become unenforceable because of changed conditions.
1) This makes them unique to covenants and equitable servitudes.
Drafting Easements
1) Draft in the form of a Deed, with names of grantor, grantee, and the date of the
instrument.
2) If no time restriction, then it will be perpetual.
3) Spell out exact location of the easement on the servient estate, including width
and length.
4) Specify the type of surface permitted dirt path, or paved road.
5) Specify the degree of use for the easement Pedestrians only, Heavy Trucks?
a) Is it to be used only for the personal benefit of the dominant estate or for
commercial purposes?
6) Spell out how much of the dominant estate is benefited by the easement.
a) What happens if the dominant owner later subdivides the parcel, buys more
land adjoining the parcel, or significantly changes the use of the parcel such
as replacing a single-family home with a large apartment building.
7) Are there specific events that will cause the easement to terminate? Consider
spelling out examples of use or misuse.
8) Arbitration clause?
9) Spell out exact provisions of the easement as the document creating the easement
will control despite changed conditions.
10) Mere inclusion of the words right-of-way do not automatically assume an
easement. The court will look at the document as a whole. (Urbaitis)

RESTRICTIONS PLACED ON LAND (COVENANTS AND EQUITABLE

SERVITUDES)
A. Restrictions in General
1) Must be in writing to be enforced and survive the Statute of Frauds (Sprague)
2) Only those who own adjacent property, or property in the common scheme have
standing to sue and enforce a restriction. (Snow)
3) If restriction requires the approval of an Archetectural Control Committee, then
the ACC must act reasonably and not arbitrary or capricious. (Suttle)

a) Standards that the ACC should uphold are not necessary to be enforced.
B. Covenants
1) What is a Covenant?
a) A promise between two or more owners of land.
b) If it is to be binding on subsequent owners of the land, then it must be
designed to be a Real Covenant.
2) Real Covenants
a) Run with the Land
b) Binding on subsequent owners of the land.
i. And Only those who own the land. (Gallagher)
c) Requirements of a Real Covenant
i. Touch and Concern the Land
ii. Be Intended to run against subsequent owners
iii. Be based on the Privity of Estate which must exist between the parties at
the time the covenant is made.
d) Privity of Estate (when both parties have an interest in the land)
i. There are 3 and only 3 situations in which privity of estate exists
Between the buyer and the seller when the deed is conveyed.
The covenant must be included in the deed.
Between landlord and tenant during the term of the lease
They will be binding on successors of the lease (if the tenant subleases)
Between dominant and servient owners of an easement, for the area
covered by the easement, during the term of the easement.
ii. Privity exists between a landowner and a homeowners association, even
though the association owns no land, but represents those who do.
(Neponsit Property Owners Assn)
e) Touch and Concern the Land
i. The covenant must involve the land, and not a promise of one owner to
pay the other.
ii. It must affect the quality, value, or mode of enjoying the estate conveyed
either by enhancing the value or decreasing its value.(Gallagher)
f) Covenant must have been intended to run with the land
i. Many drafters include a clause that the covenant is to run with the land.
ii. This is a subjective examination of the parties when they covenanted
usually determined by a jury.
3) Drafting Real Covenants
a) Specify how privity of estate exists (Grantor-Grantee; Landlord-Tenant;
Dominant-Servient Owners of Easements).
b) Does it run with the land and is it binding on the parties heirs, successors,
and assigns?
c) Spell out how it touches and concerns the land.
d) Spell out exactly what is to be done by the person who is to be burdened by
the covenant.
e) How long is the covenant to last? Is it perpetual, Renewed by consent of
current owners, does it automatically end?
f) Arbitration Clause/?
4) Personal Covenants

a) Covenants which do not meet the standards of a Real Covenant

b) Personal Covenants are those which are only enforceable against the people
who originally made the covenant.
c) In Bockstiege, the town was not a landowner, and thus could not enter into a
Real Covenant. Thus the promise did not run with the land and was only a
personal covenant.
5) Covenants are affected by changed conditions
a) Court may find it inequitable to enforce certain covenants under the
circumstances at the time the enforcement is sought, if they are unjust.
i. Covenants can be enforced upon outlying properties ,even when
conditions change, so that it may protect those of the inner properties
(Cowling).
b) Drafters usually only draft covenant to last for only 20 or 30 years, possibly
with provisions for renewal.
C. Equitable Servitudes
1) What are Equitable Servitudes
a) Equitable Servitudes are restrictions placed unilaterally on the land by the
owner and binding on subsequent owners of the land who are given notice of
the restriction.
b) Initially they are created by the owner and enforced until the court decides
they should no longer be enforced.
2) Requirements of an Equitable Servitude
a) Must be placed on the land by the owner,
b) The person whom it is to be enforced had notice of the restriction.
3) Equitable Servitudes are affected by changed conditions
a) Court may find it inequitable to enforce certain equitable servitudes under the
circumstances at the time the enforcement is sought if they are unjust.
4) Drafting Equitable Servitudes
a) State the name of the owner that is to be subject of the equitable servitude.
b) Give the exact legal description of the land that is to be subject to the
equitable servitude.
c) State the specific restrictions imposed. . . will building restrictions be
sufficient, or do you need to protect sight lines form trees etc.?
d) Indicate that the equitable servitude is binding on successors in interest
e) Give guidance as to termination, - when the benefittor files notice of
termination.
f) Arbitration?
g) RECORD IT

VI.

HOW TO DRAFT:

A. Easement
1) Draft in the form of a Deed, with names of grantor, grantee, and the date of the
instrument.
2) If no time restriction, then it will be perpetual.
3) Spell out exact location of the easement on the servient estate, including width
and length.
4) Specify the type of surface permitted dirt path, or paved road.
5) Specify the degree of use for the easement Pedestrians only, Heavy Trucks?

a) Is it to be used only for the personal benefit of the dominant estate or for
commercial purposes?
6) Spell out how much of the dominant estate is benefited by the easement.
a) What happens if the dominant owner later subdivides the parcel, buys more
land adjoining the parcel, or significantly changes the use of the parcel such
as replacing a single-family home with a large apartment building.
7) Are there specific events that will cause the easement to terminate? Consider
spelling out examples of use or misuse.
8) Arbitration clause?
9) Spell out exact provisions of the easement as the document creating the easement
will control despite changed conditions.
10) Mere inclusion of the words right-of-way do not automatically assume an
easement. The court will look at the document as a whole. (Urbaitis)
B. Covenants
1) Specify how privity of estate exists (Grantor-Grantee; Landlord-Tenant;
Dominant-Servient Owners of Easements).
2) Does it run with the land and is it binding on the parties heirs, successors, and
assigns?
3) Spell out how it touches and concerns the land.
4) Spell out exactly what is to be done by the person who is to be burdened by the
covenant.
5) How long is the covenant to last? Is it perpetual, Renewed by consent of
current owners, does it automatically end?
6) Arbitration Clause?
C. Equitable Servitudes
1) State the name of the owner that is to be subject of the equitable servitude.
2) Give the exact legal description of the land that is to be subject to the equitable
servitude.
3) State the specific restrictions imposed. . . will building restrictions be sufficient,
or do you need to protect sight lines form trees etc.?
4) Indicate that the equitable servitude is binding on successors in interest
5) Give guidance as to termination, - when the benefittor files notice of termination.
6) Arbitration?
7) RECORD IT

VII. ESTATES
A. Fee Simple Determinable
1) So Long As. . . then revert
a) So long as is not enough.
i. The court will not recognize a possibility of reverter unless express and
unambiguous language is included.
Use and Occupy and Term is not sufficient alone.
2) Automatic Termination of the estate upon breach of condition.
3) Special Rules:
a) A public entity holding a Fee Simple Determinable cannot condemn the same
parcel to eliminate the possibility of reverter.
i. This is true in California and Texas
ii. The city owned, and it condemned.
NOTE: The state could possibly condemn with no problem.
iii. Because through the condemnation the condition subsequent was
inevitable, the city owes 100% compensation.
B. Fee Simple Subject to Condition Subsequent
1) Active re-entry must be made to take back the land
C. Life Estates
1) One is allowed to use for the life of the person.
2) It will then revert back, or pass on according to the wishes of the grantor.
3) One can sell the interest in the life estate, however, it reverts or passes on when
the person originally granted with the life estate dies.
D. What is part of the Estate?
1) Factors to determine if Building and Personal Property are part of the Estate.
a) Annexation to the realty
b) Adaptation to the use of that part of the realty with which it is attached.
c) The intention of the party making the annexation.

VIII. FUTURE INTERESTS

A. Future Interests
1) Not Subject to RAP and created in the Grantor
a) Reversion
b) Possibility of Reverter
c) Right of Entry
2) Subject to RAP and created in someone other than the grantor
a) Executory Interests
b) Remainderrs
B. Reversion
1) G A for life
2) To A for life
3) Reversion is an interest created in the grantor (but can later be conveyed)
4) A reversion is the un-disposed portions remaining in a grantor when the grantor
conveys less than his or her whole estate, and therefore retains a portion of the
title.
5) A Reversion is CERTAIN to happen, and not subject to a condition subsequent.
C. Possibility of Reverter

1) G DU so long as used for a law school G

2) So long as used for . . . then to revert to me
3) Possibility of Reverter is an interest created in the grantor (but in most states can
later be conveyed).
4) Interest held by the grantor when he conveys a fee simple determinable
5) This is an AUTOMATIC reversion, the grantor does not need to do anything,
6) The holder of a possibility of reverter does NOT have a present vested interest or
estate in the land.
a) Therefore, a city can sell a parcel of land with a possibility of reverter despite
a statute forbidding a city to lease land.
7) Once the property reverts, it is then possible to adversely possess to obtain a fee
simple absolute.
a) Sufficient notice is probably needed, (one bottle of beer sold in private is
probably not enough)
D. Right of Re-Entry
1) GA but if liquor ever sold G has a right to re-enter and take land back.
2) Give to you, but if you ever . . . then I have a right to re-enter and take back
3) Right of entry interest exists in the grantor when he conveys a fee simple subject
to condition subsequent.
4) G has to act (usually within 2 years) to take the land back.
5) The holder of a right of re-entry CANNOT transfer it as it will be destroyed.
6) The court will not recognize a right of re-entry unless express and unambiguous
language is included.
E. Remainders
1) Intro
a) There are 4 types of Remainders: Contingent Remainders, Vested Remainder,
Remainder Subject to Open, Remainder Subject to Divestment.
b) Remainders are an interest created in a 3rd Party and follows a life estate.
2) Contingent Remainder
a) G A for Life As Children (when As Children are not yet born)
b) To A for life, then to As children (assuming A has no children)
i. The remainder interest in As Children is contingent on As children being
born.
c) G A for life B if B graduates law school
i. B has not yet graduated from law school and must do so before he can get
the gift.
d) There is always a reversion in the grantor, even if all gaps are filled.
i. This allows for G to sell his worthless reversion and A to sell his life
estate to a 3rd party as a fee simple absolute.
e) SUBJECT TO RAP
3) Vested Remainder
a) G A for life B
b) To A for life, then to B
i. B doesnt have to do anything to get the remainder AND we know who B
is.
ii. If B dies before A, then it passes to Bs estate
c) If it vests in time, then it is OK under RAP
4) Remainder Subject to Open
a) G A for life As Children if A has children alive when G grants to A.

b) To A for life, then to As children (assuming A already has one child).

i. Since A can have more children, then A is an open class
ii. Once one of As kids is born, the interest in that kid is vested.
5) Vested Reminder Subject to Divestment
a) G A for life B, but if B should ever go skiing C
b) To A for life, then to B; but if B should ever go skiing, then to C.
i. We know who B is, and he doesnt have to do anything, therefore it is
vested, but if he goes skiing, then it could be taken away.
c) C has a shifting executory interest
d) COMPLIES WITH RAP
F. Executory Interest
1) The only interest that can follow a vested remainder.
2) 2 Kinds of Executory Interests: Shifting and Springing
a) Shifting Executory Interests
i. Follow a Remainder
G A for life B provided B never goes skiing, C
ii. Follow a Fee Simple Determinable
G A but if A ever sells alcohol B
iii. Follow a Fee Simple Subject to Condition Subsequent
G A but if A ever sell alcohol C has the right to enter and take the land
b) Under RAP, a shifting executory interest vests upon possession
i. If a solid line of charities, then not subject to RAP
c) Springing Executory Interests
i. Springs from the grantor over an interval of time to the grantee
3) Early Vesting Rule
a) If in doubt, call it vested.
i. If there are conditions, instead of waiting to see if those are met, call it
vested at the time of the death of the testator
4) Vested interests in land may be sold or inherited.
5) Rule in Shellys Case
a) ONLY APPLIES TO LAND
b) Where an instrument, the remainder was given to his heirs, the first taker had
a fee simple if the remainder was to his heirs generally.
c) GA for life As heirs
i. A has a fee simple absolute
Note: If you were to say to As descendants, then the Rule in Shellys
case would not apply.
d) GA for life B for life As heirs
i. A has a life estate and a vested remainder after Bs life estate
ii. A does not have a fee simple determinable because B has an intervening
life estate.
G. Vested Interest, or Contingent?
1) Living person can have no heirs until death
a) Therefore, any of the heirs interests are contingent until death of the being.
2) If property passes to A for life, then to As Heirs, then As heirs holds only a
contingent remainder because A has no heirs until he passes. Therefore it does not
vest until As death.
H. Rule Against Perpetuity

1) The Rule
a) No interest is good unless it must vest, if at all, not later than 21 years after
some life in being at the creation of the interest.
b) Applies to executory interests
c) If a solid line of charities, then RAP does NOT apply.
d) Fertile octogenarian one can have children until (s)he dies
2) How to Apply RAP
a) Notice when the interest is created
i. Deed Immediately after the Grantor transfers
ii. Wills Interest is created when the testator dies
iii. Trusts Interest is created when the trust becomes irrevocable.
iv. Powers of Appointment when the power is exercised.
b) Determine the Measuring Life
i. Use the life specified by the document
Must be a person, Corporations dont work.
ii. See if the beneficiaries can be their own measuring lives.
Must be alive at the creation of the interest
Must be part of a closed class at the creation of the interest.
iii. If not, use the parent of the beneficiaries
iv. If none, it is simply 21 years.
c) Check to see if the interest will vest or fail within 21 years of the death of the
measuring life.
i. Imagine the day after the interest was created that the measuring life
(lives) suddenly died
3) Rule of the Unborn Widow
a) T Ts Widow for life Son for life Sons Widow for life Sons Kids
i. Valid because Son is the measuring life and when he dies, you know who
the Sons widow is and who the Sons Kids are.
T Ts W for life S for life Ss W for life Ss Kids who survive Ss Widow
b)
NOT Valid because it is uncertain 21 years after S dies as to where the
c)
property will go. (Ss Widow may be very young and might out live Ss kids.)
4) Option Contracts that violate RAP are also void
a) In general, options to buy real property are subject to RAP
i. Exception: Rule has generally not applied when a lessee has been given
an option to purchase the leased property.
RAP still applies when a lessee seeks to acquire additional premises.
b) A K that allowed X to buy into the estate up to interest and was binding on
us and our heirs and assigns was void.
5) Modifications of RAP
a) Wait and See
i. Delays the determination of the validity of an interest by waiting to see if
it actually vests within the period of RAP.
b) Cy Pres
i. Changes the time period that violates RAP to 21 to approximate most
closely to the intention of the creator of the interest.
ii. Other type of Cy Pres (NOT USED OFTEN) switches to a like charity.
c) Colorado Statutory RAP
i. Wait 90 years, then cy pres

ii.
d) Reformation
i. There is a Colo. Case where it was determined that the RAP violating
clause was scrivners error. The court was able to reform the K, thus
removing the error, and RAP was valid.
e) Selective Enforcement

IX.

CONCURRENT ESTATES

A. Tenants in Common
1) As interest goes to As estate when A dies
2) You can partition
3) Each co-tenant owns a separate fractional share of the undivided property.
4) All co-tenants share a single right to possession of the entire interest.
5) A cotenant who pays more than his share of a debt secured by a mortgage is
entitled to reimbursement from his cotenants to the extend of his share.
a) Reimbursement at their option and within a reasonable time.
B. Joint Tenants with right of survivorship
1) Each joint tenant possesses the entire estate, rather than a fractional share.
2) Upon the death of one of the co-tenants in joint tenancy, the entire undivided
interest of the deceased passes to the surviving co-tenant.
a) A dies, then B becomes the owner
b) A cannot give his interest to As estate
3) There is no transfer of interest, rather the interest of the deceased joint tenant is
merely extinguished.
a) Thus, any liens on the joint tenants interest are also extinguished.
i. In the case, the bank did not foreclose and did not seek $ during the
probate, thusi t no longer has any interest in the land through its lien.
4) Intent of the grantor should be met as to the right of survivorship, whether
through the deed or elsewhere. (Some places they will reform the deed.. but dont
count on it.)
5) B can sell his interest to a third party
6) Severence
a) One joint tenant may unilaterally terminate the joint tenancy and create a
tenancy in common usually done by conveying to a third party.
i. If you want to sever and remain the owner, sell to a strawman
In Colorado, a joint tenant can sever a joint tenancy through conveying
the property to himself a strawman is not needed.
b) Where there are 3 joint tenants, and only one sells, then the joint tenancy
remains in the 2 with a concurrent tenancy with the new owner.
i. Creditors can sever joint tenancy as well through foreclosure
ii. In Lien Theory States (as in Colo.) simply mortgaging a property is not
sufficient to terminate a joint tenancy as the legal title is never conveyed,
whereas in Title Theory States, it is sufficient as title is conveyed.
c) Murder
i. 6 Possibilities
Murderer is deprived of the entire interest except for a life interest in
one-half.
Murderer is entitled to keep all the property

Constructive trust.
Murderer is a trustee for the victims estate
By the murder, the joint tenancy is severed, and should go to the
victims heirs thus creating a tenancy in common.
C. Tenancy by Entirety
1) Only available to spouses (and in civil unions as in Vermont)
a) Divorce creates a tenancy in common
2) Cannot be severed unilaterally by either
a) Need the signature of both.
3) When A dies, As interest goes to B

X.

MORTGAGES AND DEEDS OF TRUST

A. Lien v. Title Theory States
1) Lien Theory States
a) Mortgaging a property does NOT transfer legal title to the bank
2) Title Theory States
a) ????Mortgaging property does transfer legal title to the bank??
B. Foreclosure
1) Mechanics Liern
a) A Mechanics Lien can jump up in priority bank as its priority date begins
when the work on the house begun,

XI.

RISK OF LOSS

A. Equitable Conversion
1) Shift of many incidents of ownership to the purchaser once the sales contract is
executed.
a) Purchaser owns an interest in the real property
b) Seller, while still legal and record owner, has a personal interest
B. Who bears the loss during the executory period?
1) If stated by the Contract, the Contract prevails
2) Depends on jurisdiction.
a) Sometimes depends on who is in possession and who has insurance.
b) MA rule, turns the vendee loose and leaves the vendor with the ruins
c) If the K has been so far completed that ht vendee is to be treated as the owner
of the premises, then the loss falls upon him, whether or not in possession.
d) Others depend on whether there is a substantial failure of consideration (i.e.
the seller is unable to convey the house as the house is no longer standing).

XII. BUYING A HOUSE

A. Escrow
1) The agent cannot pass on title unless the conditions are met.
2) If such conditions are not met, yet the title is passed, it is not good title.
a) But if a BFP later buys it, there is a shot that the BFP will win it per the case
we read.

XIII. CONVEYANCING
A. Deed

1) Two types of deeds:

a) Warranty Deed
i. Contains personal covenants of the grantor relating to the nature of the
estate conveyed, and covenanting that the grantor has a indefeasible estate
in fee simple.
b) Quitclaim
i. Transfers only such interest as the grantor has and excludes any
implication that he has good title, or even any title at all.
2) Recording a deed is only constructive notice to those who are bound to search for
it, thus when digging in someone elses yard and destroying telephone cables that
were given a right of way, the diggers were not liable.
B. Escrow
1) Where the possession of a deed placed in escrow is obtained without the
performance of the condition upon which delivery thereof was to be made, no title
passes.
C. BFP Filter Bona fide Purchaser
1) If an unclean title is passed to one who has no reason to believe that it was not
valid, then he is a BFP and can sell the land.
2) Once title has come into the hands of a bona fide purchaser, he can pass that
protection on to the grantees even if they have notice of the adverse possession.
a) The exception is that one cannot clean up his own title merely by running it
through a BFP.
D. Titles
1) Titles are recorded, unless through adverse possession.
2) Three types of Recording Acts used in different jurisdictions.
a) Pure Race
i. He who records first wins.
b) Race-Notice
i. A Subsequent BFP is protected only if she records before the prior grantee
c) Notice
i. A subsequent BFP prevails over prior grantee who failed to record.
3) To be a bona fide purchaser
a) Be a purchaser,
b) Without Notice actual, constructive, inquiry
i. Notice is limited to chain of title, and does not encompass wild deeds.
c) Pay Valuable Consideration
d) The recipient of a quitclaim can be a BFP

XIV. COMMUNITY PROPERTY

A. Whats the big idea?
1) During the marriage, each spouse immediately owns of any paycheck earned by
wither spouse.
2) Cant give community property away as gift unless both parties agree (or under
$1,000.00 in AK).
B. States
1) LA, TX, AZ, NV, NM, CA, WA, WI, ID, and sometimes AK
C. Stepped Up Basis as a Tax Shelter
1) Widows of the property gets the stepped up basis at the time of spouses death
regardless of whether they live in community property or not.
2) In non community property estates, the survivor must pay capital gains on the
stepped up portion of the land she inherited from her husband.
3) In community property states, the deceaseds land also gets the stepped up basis
and therefore doesnt have to pay capital gains.
D. Alaska
1) The Alaska statute allows you to put property from anywhere in the US into
community property if you set up an Alaska trust
a) The trustee has to have a TRUE AK resident.
2) Sometimes Alaska because you can elect NOT to purchase property in the noncommunity property status.
E. Moving from a Community Property state to a Non-Community Property State
1) Couples should be careful to preserve its community nature.
a) If Property is sold and new property is obtained with proceeds, they should
purchase as community property.
i. If face resistance, they should take title in both names and sign an
agreements explicitly stating their intent to maintain community property.
ii. Dont just change to joint tenancy, because you lose tax benefits

XV. TORRENS STATUTE

A. Whats the big idea?
1) Cant adversely possess unless such possession is listed on the title.
B. Colorado
1) Colorado allows you to put your title into the torrens system if you want
C. Problems
1) Its like owning the title to the car. Whoever has possession of the title, owns the
car
2) Forgery
a) If you were to forge a title in the regular system, the forgery would be invalid
and you would still own your property
b) If someone forged your signature, and then sold your land, the buyer would
own the property because the seller is in the better position to protect his
interests in this situation.
c) The felonious seller can be thrown in jail, but the land still belongs to the
buyer.
3) Assurance Fund
a) Created to fund mistakes.

b) Problem is very little money in the fund (if it exists at all in the county).

XVI. NUISANCE
A. Private Nuisance
1) Affects an individual, or a small number of people
2) All or nothing. . . you cannot have a partial nuisance.
3) Case by Case inquiry is required, balancing competing property interests
a) The UNREASONABLE interference with the use and enjoyment of the land.
b) Look to:
i. Are there alternative means of achieving the s objective?
ii. Social Utility
iii. Complying with local governmental regulations (NOT DISPOSITIVE).
4) Noise is an actionable private nuisance if two elements are present:
a) Injury to the health and comfort of ordinary people in the vicinity; and
b) Unreasonableness of that injury under all the circumstances.
c) Ros v. Chaikin tells us that the relevant factors are: character, frequency,
duration, time, and locality.
B. Public Nuisance
1) Affects the rights of enjoying citizens as a part of the public.
a) A considerable number of people, an entire neighborhood, or an entire
community.
C. Zoning
1) Regardless of the compliance with zoning ordinances or regulations, both
business and residential uses may be enjoined if they constitute a nuisance to an
adjoining property owner.
a) Horse property, although zoned as a nuisance can be forced to no longer house
horses.
D. Coming to the Nuisance
1) In general:
a) Principle of Coming to the Nuisance bars relief sought by those who buy
property and move to an existing nuisance.
i. Does not work when a feedlot builds on the outskirts of an expanding city
that is bound to envelope the feed lot.
2) Del Webb Case
a) The developer who brought people to the nuisance to the foreseeable
detriment of a feed lot must indemnify the feed lot for a reasonable amount of
the cost of moving or shutting down.
b) This is an unusual case because this is probably a public nuisance which the
city takes care of.
c) Unique because it made Del Webb pay.
3) Colorado
a) In Colo., moving to the nuisance does NOT bas the from remedy.

XVII. GIFTS
A. Inter Vivos Gifts
1) Basic Rule
a) It has to be delivered and accepted to be completed.
b) Once given, it is irrevocable.

2) Delivery
a) Symbolic delivery is sufficient
i. Letter saying that I give x amount of stocks is sufficient without actually
giving the stock certificates.
3) Acceptance
a) Acceptance of an inter vivos gift is essential, but the law will presume
acceptance when the gift is of value to the donee
4) Life Estates (Think of the Gruen case regarding the painting)
a) When giving a gift with an attached life estate, no delivery is needed because
grantor retained the life estate
B. Causa Morits Gifts
1) Basic Rule
a) The gift giver must be in imminent fear of death
b) One can only give personal property away as a gift causa mortis
c) Gifts Causa Mortis are always revocable.
i. Some jurisdictions say that it is automatic revocation if the giver recovers
ii. Others require the giver to ask for the gift back.
2) Agency
a) Ones power to act as an agent ends at the principals death or incapacity
b) Therefore, in gifts causa mortis, the giver should give to a third person who
will act as the receivers agent.
3) Actual delivery is required because otherwise the safeguards against a will would
be pointless and all writings could constitute the giving away of the probate
estate/
C. Engagement Ring
1) The giving of an engagement ring is a conditional gift, conditioned on the
marriage. Even if the donor breaks of the wedding, in a no-fault state, he is
entitled to the rings return.

XVIII.

AUGMENTED ESTATES

A. Who can elect?

1) Spouse of the Deceased
2) Common Law Spouse
a) If they are competent to enter a marriage, assume such relationship by mutual
consent and relationship, cohabitate and hold themselves out to the
community as being married.
3) Required Mental Capacity needed to elect
a) The competency level is NOT the same that is required when signing a
contract or a will
b) Must have the capacity to understand his right to elect against the will, and to
know he is making such election.
c) The presumption is that all persons are competent to elect against the will and
the burden rests on he who claims incompetence
4) Persons who marry to gain assets
a) Right to elect is statutory based solely on the existence of a valid marriage.
i. For a court to establish a trust against such right is illegal. (see Riddell)
B. Spousal Property

1) Wrongful Death Benefits is property that does not vest until after the death of the
spouse, and therefore cannot be included in the augmented estate as it is not
property owned by the spouse.
a) Think of Asbestos Cases
C. Waiving Rights
1) Pre-Nuptial Agreements
a) Require Fair Disclosure, not Full Disclosure
b) Absent fraud or concealment, a party can waive statutory survivorship rights.
2) If you waive your rights to augmented estate, you can still elect see Magness
Case.

XIX. MINING LAW

A. Title
1) Legal title of the mineral estate does not merge with legal title to the surface
estate.
B. Conflicting Rights of Owners to surface and mineral rights
1) The owner of mineral rights is privileged to access the surface and use that
portion of the surface estate that is reasonable necessary to develop the severed
mineral interest. an implied easement.
a) Does not include the right to unreasonably destroy, interfere, or damage the
surface owners right. Any such conduct beyond reasonability is trespass.
b) Each must have due regard for the rights and the interests of the others.
2) Some minerals required the taking of the whole surface to get the mineral (strip
coal mining)
a) The mineral rights trump the surface owner rights.
C. Adverse Possession of Mineral Rights
1) When surface rights and mineral rights have been severed, mere possession of the
surface does not constitute adverse possession of the mineral rights
a) Must take actual possession of the minerals, or exclude the owner from
entering property to drill or mine.
2) Even when there is a void deed decreeing both surface and mineral rights, the
mineral rights portion is void and must actually possess minerals to adversely
posses.
D. Minerals that are included
1) When transferring an estate with a reservation of the mineral estate, then this
severs the mineral rights from the surface rights.
2) Majority Rule
a) The reservation of other minerals includes oil and gas
b) Colo. Follows the majority rule.
c) Exception: Unless the words surrounding the phrase suggest otherwise.
d) Limitation: Clay, Mud are not included

XX. WATER LAW

A. Riparian Rights
1) Each can use as that is reasonable
2) Natural uses
a) Can use all the water
b) Domestic and Cattel

3) Artificial uses
a) Only that which is reasonable
4) Transferring watersheds or to disconnected estate
a) Only requirement to enjoin is actual damage to lower riparian.
b) MUST be injury, without injury, the transference alone does not warrant.
B. Prior Appropriation
1) Must have beneficial use (locus of land does not matter).
2) CA Public Trust Doctrine
a) The state holds all navigable waterways, and the lands beneath them, in the
public trust for the benefit of the people.
i. Encompasses all navigable lakes and streams.
ii. Doctrine protects navigable waters from harm caused by diversions of
non navigable tributaries.
b) The state is not confined by previous water allocations when exercising its
sovereign power to allocate water resources in interest of the public trust.
c) All waters are subject to the public trust doctrine whether appropriated or not.
d)
C. Natural Underground Storage
1) A landowner has no right to charge for others storing water in a natural
underground storage aquifer.
a) If it were an artificial tank, probably have to charge.
b) Aquifer (as a storage unit) does not belong to the surface property owner.
2) When storing oil and gas, the surface owner can still ask from compensation.
D. Common Enemy Rule
1) Common Enemy Rule
a) Water is a common enemy and you can do anything to get it off your land
regardless of other affected landowners.
2) Civil Law Rule
a) You cant hurt others
3) Armstrong Case
a) Somewhere in the middle, REASONABLE
i. Pipe instead of a brook.

XXI. SUPPORT OF LAND

A. Strict Liability to support land in its natural state of adjacent landowners
1) If support for the natural condition is insufficient and land slips, adjacent
landowner is liable for both damages to natural land and any buildings that are on
that land.
B. This is limited to land in its natural state.
1) Adjacent landowner is NOT liable for any added weight of a building etc.

XXII. CAVES
A. Cujus Rule
1) Landowner is owner of the land below his property to the center of the earth to the
top of the sky.

XXIII.

FINDING

A. Avulsion v. Accretion
1) Avulsion
a) If river moves quickly (say after a flood), then the boundary doesnt change
and boundary remains at old river boundary.
2) Accretion
a) If river changes course slowly, then boundary between the property moves
with it
3) Meteorite Case
a) Whatever is affixed to the soil belongs to the soil, or a permanent annexation
to the soil of a thing in itself personal, makes it a part of the realty.
b) To take from the earth what nature has placed there in its formation, whether
at the creation, or through the natural processes of the acquisition and
depletion of its particular parts, as we witness it in our daily observations
whether it be the soil proper, or some natural deposit, as of mineral or
vegetable matter, is to take a part of the earth, and not moveables.
c) This gain was by Avulsion, and the deposit becomes the property of the owner
of the soil on which it is made.
d) Occupancy is taking possession of those things which before belonged to
nobody, and whatever moveables are found upon the surface of the earth, or in
the sea, and are unclaimed by any owner, are supposed to be abandoned by the
1st proprietor, and as such are returned into the common stock and mass of
things, and therefore the belong, as in a state of nature, to the first occupant or
finder.
B. Finding Property: Abandoned, Lost, Mislaid
1) Abandoned
a) The previous owner must (1) ACT, and (2) INTEND to abandon the
property
b) He who first grabs the abandoned object, owns it
2) Lost
a) Lost Property that which the owner has involuntarily parted with through
neglect, carelessness, or inadvertence
b) Finder has a better right than anyone else except the true owner
3) Mislaid
a) Property which the owner intentionally places where he can again resort to it,
and then forgets.
i. To place a pocket-book upon a table and to forget to take it away is not to
lose it, rather to mislay it.
ii. Property which is found embedded in the soil under circumstances
repelling the idea that it has been lost is held to have mislaid properties.
b) Mislaid property is presumed to be left in the custody of the owner or occupier
of the premises upon which it is found, and it is generally held that the right of
possession to mislaid property as against all except the true owner.
c) It is the duty of the owner of the locus in quo to use reasonable care for the
safekeeping of the same until the owner should call for it.
4) Treasure Trove
a) Definition: A modification of the mislaid rule, treasure troves go to the finder,
not the owner of the locus in quo (when the true owner is unknown).

b) Only precious metal can fall under the treasure trove category gold, coin,
silver.
i. Paper money, Diamonds, Emeralds do not fall under the category, and
would be a typical mislaid item.
c) Texas does not recognize the treasure trove exception to mislaid property
d) Jar full of money found buried in the garage is not a treasure trove, and goes
to the owner of the property.
5) Finder must take actual Possession - Sunken Ship Full of Lead Case
a) The occupation or possession of property lost, abandoned, or without an
owner, must depend upon an actual taking of the property with the intent to
reduce it to possession
b) Marking trees that extended across the wreck and affixing temporary buoys to
it were not acts of possession; they only indicated the s desire or intention to
appropriate the property.
c) Placing his boat over the wreck, with the means to raise its valuables and with
persistent efforts directed to raising the lead, would have been keeping the
only effectual guard over it, would have been the only warning that other
longing occupants would be obliged to regard and would have been such acts
of possession as the law would notice and protect.
6) Finder does not have true ownership, but can keep it from all others except the
true owner. Boy who finds a ring, takes it to a jewelry shop who removes and
keeps the stone case
a) The finder of a jewel, though he does not by such finding acquire an absolute
property or ownership, yet he has such a property as will enable him to keep it
against all but the rightful owner, and consequently may maintain trover.
b) Court ruled the jewelry shop owner must replace the stone with one of the
finest quality.
7) If found in Public Area goes to the finder (determined to be lost)
a) i.e. if you fond money in a bank lobby, it goes to the finder.
8) If found in an area in control of the property owner, goes to the owner of the locus
in quo. (Determined to be mislaid).
a) i.e. if you find money in a safe deposit box viewing room, it goes to the bank
as the owner of locus in quo.
9) Owner of a lake who pays to have it dredged gets the trove.
a) The possession of land carries with it in general, by our law, possession of
everything which is attached to or under that land, and, in the absence of a
better title elsewhere, the right to possess it also. And it makes no difference
that the possessor is not aware of the things existence.
b) Where a person has possession of house or land, with a manifest intention to
exercise control over it and the things that may be upon or in it, then, if
something is found on that land, whether by an employee of the owner or by a
stranger, the presumption is that the possession of that thing is in the owner of
the locus in quo.
10) Case where court gives possession of item found on top of window by a soldier
who was renting a room.
a) This case stretches the rule.
b) The item was probably mislaid and the court just felt sorry for the soldier

XXIV.

BAILMENT

A. General
1) As a bailee, you have a duty to give the property back to the true owner.
B. Traditional Rule
1) If you give the keys to a valet who keeps the keys, the parking lot owner is a
bailee
2) If you park in the lot and keep the keys, then there is NO bailment.
C. Modern Rule
1) CASE-BY-CASE basis where the facts determine if there is a bailment created.
2) If the valet keeps the keys, still a bailment
3) If the parking lot PURPORTS TO BE IN CONTROL - lot has a gate, has security
driving through, cameras, then a bailment is created

XXV. LANDLORD/TENANT
A. Warranty of Habitability
1) In DC, (not Colo. Or Alab.), if you have KNOWN defects VIOLATING the
statute PRIOR TO THE CREATION OF THE LEASE, then the lease is void, and
you cannot evict.
a) If violation is present prior to the lease, then tenant can withhold rent and not
be evicted.
2) There is an implied warranty of habitability in DC TIED TO THE HOUSING
CODE
a) The tenant has a right to expect that the apartment will be fit for habitation for
the time period for which it is rented.
b) Since the lessee continues to pay the same amount of rent, they are entitled to
expect that the landlord maintains the premises in its beginning condition
during the lease term.
c) A tenant cannot waive the implied warranty of habitability
d) The payment of rent is dependent upon the landlords performance of his
obligations
i. The tenant must be given the opportunity to prove that housing code
violations were violated.
e) Tenants Rights do not depend on official inspection or official finding of
violation by the government.
f) The landlord can defend himself by showing that the damage was caused by
the tenant.
g) Jury decides
i. How much
ii. The extent
iii. May decide that one or two violations not crucial to habitability may be de
minimus and not require any payment.
h) During the dispute, the landlord cannot evict because of nonpayment of rent,
but he can evict on any other purpose.
i. Once the default is cured, rent becomes due.
i) Landlord can cure the problem during the litigation
i. Rights are NOT frozen.
3) There is an Implied Warranty of Habitability in HI THAT IS NOT TIED TO A
HOUSING CODE

a) Implied warranty not just for poor people.

b) In determining the materiality of the breach, must look to
i. Seriousness of the claimed defect,
ii. Length of time for which it persists
B. Retaliatory Eviction Prohibited
1) While the landlord may evict for any legal reason, or no reason at all, landlord
CANNOT evict in retaliation for his tenants report of housing code violations
2) Presumption that retaliatory evictions are prohibited even if the statute is silent
3) If the illegal purpose has dissipated, the landlord may increase the rent / evict due
to economic reasons.
a) The true reason for the eviction is a question for the courts and a jury.
C. Colorado
1) Colo. Does NOT have a warranty of habitability
2) Colo. Follows the Common law rule where the landlord is not obligated to repair
unless he covenants to do so in writing in the lease.
3) Ingalls v. Hobbs
a) NOT a replacement for implied warranty of habitability b/c the case was well
before any notion of the warranty.
b) One who leases out a FURNISHED house for a SHORT PERIOD (under 5
years) that is FIT for IMMEDIATE OCCUPANCY will be required that it is
habitable.
4) Constructive Eviction
a) An act ATTRIBUTED TO THE LANDLORD,
i. Omission is not enough, the landlord must act
b) That creates damage that is BAD ENOUGH to make the property
INHABITABLE
c) Tenant MUST MOVE OUT within a SHORT PERIOD (less than 3 days)
d) Conditions based on the area KS is different than NY
e) Allows rescission of the lease, BUT If the tenants are wrong, then they are
still liable for unpaid rent.
D. Fair Housing Act
1) FHA includes dwelling and vacant lands
2) Cannot discriminate on the basis of:
a) Race, color, religion, sex, handicap, familial status, or national origin
3) Discrimination includes:
a) Saying that there is no apartment available to rent, or inspect when such
apartment is available.
4) FHA does not require you to rent to druggies
5) FHA statute allows for you to get attorneys fees as part of the damages
6) Cant charge twice the deposit to certain people this too is discrimination.
7) Senior Housing is okay when the housing provides Senior Services
8) Mrs. Murphys Boarding House Exception
a) If the unit is under 4 units, and the owner lives there, then you can
discriminate.
9) FHA prohibits the making or publishing of any statement or advertisement that
indicates and preference or limitation based on, among other factors, race or
family status.
a) An objective ordinary reader standard should be applied to determine what
is indicated by the advertisement.

E.

F.

G.

H.

b) The ad does not need to jump out at the reader with the offending language,
rather the ad violated FHA if it would discourage an ordinary reader of a
particular PROTECTED GROUP from answering it
i. Protected Factors include: family status, race
c) No proof of subjective intent is needed, but a showing of subjective intent
may be an alternate means of establishing a violation of FHA.
d) You can also show past history to help prove a violation
i. The fact that never rented to an African American in the past.
Tenants Right to Possession
1) American Rule
a) Fight your way in
i. The lessee has a legal right to possession, there is no implied covenant to
protect the lessee against wrongful acts of strangers.
2) English Rule
a) Landlord required to get the prior tenant out.
i. There is an implied undertaking by the lessor that the premises shall be
open to the lessees entry, legally, and actually, when the time for
possession under the lease arrives.
3) Damages that are recoverable are those reasonably within the contemplation of
the parties at the time of contract thus Loss of Profits earned by a new business
are too speculative to recover.
Duration of the Tenancy
1) Tenancy in Years
a) Traditional Type lease that has a term certain
i. Lease that has a definite beginning date and a definite ending date.
b) It automatically ends at its termination date, unless the K allows for
termination before hand upon the desire of the parties.
c) No limit as to the time could be 1 day, or 1,000 years.
2) Periodic Tenancy
a) Form of lease which continues from year to year, or month to month, or other
specified period until proper notice of termination is given.
b) Notice of Termination Restrictions
i. At Common Law, at least 6 months notice is required to end a year to year
periodic lease, and notice at least one full period out is required to
terminate a periodic lease shorter than one year.
ii. Many statutes have altered these requirement
In Colo., need only 3 months notice to end a year-long lease.
Holdover Tenants
1) A tenant who holds over after the expiration of his term may, at the election of the
landlord, be held to be either a trespasser or tenant for another similar term.
a) However, in the case, most of the belongings were vacated, and they only had
a few things to move because of problems using the elevators.
b) Also, the lease provided for the contingency if the tenant held over paying
double for the excess time he occupied the premises.
The Duty of Continuous Operations
1) Clauses that weigh against a construction of the K requiring continuous
operations.
a) Free assignability by the tenant without the consent of the lessor

I.

J.

K.

L.

b) Existence of a substantial based rent in addition to provisions of a percentage

of net sales rental payments
2) ADVICE: You want to make sure your anchor store will stay or allow for another
anchor to come in if previous one vacates so other business will stay alive.
Who owns Physical Alterations to the Premises Lessor or Lessee?
1) NOTE: This is when the lease is silent on the issue.
2) General Rule
a) Whatever is fixed to the realty is therefore made a part of the realty
3) Exceptions
a) Fixtures put in place by the tenant are the tenants if they can be removed
without material injury to the property.
b) Trade fixtures
i. Same as fixtures, if they can be removed without material injury to the
property, then they belong to the tenant.
Higher probability that they will belong to the tenant than regular
fixtures.
ii. Trade Fixture
That which is annexed for the purpose of aiding in the conduct of the
tenant of a trade or business\
The form or size of the fixture is immaterial.
4) Trade fixtures are removable by the tenant so long as the tenant remains in
possession of the leasehold.
Security Deposits in Colo.
1) Security deposit CANNOT be retained for normal wear and tear
2) Landlord has a duty to return the security deposit, or a written letter detailing the
retentions and the balance within 60 days from the end of the lease, or when the
tenant moves out.
a) The lease may give a different amount not to exceed 60 days.
3) Failure to provide a written statement, the landlord forfeits all his rights to
withhold any portion of the deposit
a) AND the landlord is liable for treble damages for the amount wrongfully with
held.
b) AND reasonable attorneys fees and court costs
4) Tenant has the obligation to notify landlord within 7 days of his intention to
proceed with legal action.
a) Landlord CANNOT avoid treble damages by accounting for the retention of
the security deposit during this 7 day period.
HUD v. Rucker
1) Problems
a) It is not mandatory to evict residents, it is the discretion of the manager.
Manager can abuse this discretion and evict those who complain about hot
water
b) No Knowledge requirement
i. Grandparents can get kicked out because of their grandkids smoking pot in
the parking lot.
Assignees
1) In leases, the lessee being a party to the original K, continues always liable,
notwithstanding any assignment; the assignee is only liable in respect of his
possession of the thing.

a) He bears the burden while he enjoys the benefit, and no longer.

b) Unless fraudulent or colorable, a new assignment of the lease terminates the
assignees liability to the lessor for rent subsequently accruing.
2) If such assignee, by a new assignment, fairly relinquishes not only possession but
also ALL benefits there form, it is immaterial that the new assignee may be
financially irresponsible.
3) The case is different if it is colorable (assignee retains some possession or some
benefit), he is then responsible.
4) ADVICE: Landlord wants to have a clause in the lease stating that the landlord
must approve all assignments, that the landlord can withhold approval for any
reason, and that prior approvals hold no weight to future approvals.

XXVI.

MISCELLANEOUS

A. Colorado Interval Ownership Statute

1) Interval Estate
a) There is a Remainder. . . make sure you have it
b) Also insure that if you are buying from a previous owner that you know how
much time is left.
2) Time-Span Estate
a) You own that week forever
3) Other Potential Liabilities with Time Share estates
a) The IRS or the HOA of the timeshare can go after you for all the taxes owed
i. You can then turnaround and sue everyone else for their share.
4) Condos
a) Obsolescence Clause
i. You have appointed the HOA can sell your property without your consent
if a certain percentage of the HOA agrees to sell the whole complex.
b) Right of First Refusal Clause
i. You must give notice to the entire HOA so that others can buy instead
Racial Discrimination
Alternative, ensure the financial obligations are met.
5) Turning Apartments into Condos
a) Notice of the conversion is required.
i. Notice only needed through mail to the tenants last known address
ii. Must buy or move out.
B. Colorado Solar Easements
1) Any solar device passive or active.
2) Must be in writing
3) No Prescriptive Easements
4) Remember to take into account the seasonal variations of the path of the sun
across the sky.
C. Colorado Conservation Easements
1) Applies to Open Space & Buildings
2) Faade Easements
a) Prevent you from changing the outside of your house.
3) Why?
a) Get a break on the taxes that year from donating to a non-profit

b) No longer own the exterior, so the taxable value of the portion of the house
you own is lowered, and thus less taxes.

XXVII.

RECIPROCAL NEGATIVE EASEMENT

A. General
1) If there is a restrictive easement from a common development, all other lots MAY
also have the same restrictions.
2) NEVER RETROACTIVE
3) Must search title for all other plots prior to yours.
4) It is not personal to the owners, rather it operates on the use of the land
5) MUST start with a COMMON OWNER
a) The restriction cannot arise and fasten upon one lot by reason of other lot
owners conforming to a common plan.
6) MUST have NOTICE
a) If the restriction is recorded in the other propertys deed, then notice is met

XXVIII.

ZONING

A. Overview
1) You get Paid for Condemnation, you DONT get paid for changes in zoning
regulations
a) The difference between the two is a flexible, magical line
B. Euclidian Zoning
1) Cumulative zoning
a) What ever is allowed in the most restrictive area, can also be allowed in the
least restrictive.
C. Planned Unit Development
1) Carefully planned determining what goes where
a) So stores are close to houses, etc Think Stapleton
D. Cluster Zoning
1) 6 Houses per acre
2) Clusters houses togther next to a park
E. Determining Zoning Validity
1) Must be justified in the citiys police power to benefit the public welfare
2) When determining if a zoning restriction is valid, the court must not look to the
one building that is restricted in itself, rather the connection of the circumstances
of the locality as a whole.
a) If it is fairly debatable, the judgment of the legislature to enact should prevail.
F. Downzoning
1) You can downzone by making the property more restrictive, thus preventing lowcost housing from coming in.
2) The more advance you downzone prior to the building of the low cost housing,
the more likely it will be upheld.
G. Variances and Special Exceptions
1) Special Exceptions
a) Zoning board may allow for special exceptions in certain zones for specified
purposes they are LISTED IN THE ZONING
i. Examples: Water towers, college fraternities, libraries, fire stations.

H.
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2) Variances
a) Variances may be accepted when not contrary to the public interest, and where
literal enforcement of the ordinance will result in an unnecessary hardship
b) Unlike special exceptions, variances are not limited for specified uses, but
they are available only to avoid UNNECESSARY HARDSHIPS because of
the UNIQUENESS of their property.
i. Example: Cant build on the land because of the plots odd shape and the
ordinance requiring at least 10ft within the property line.
Contract Zoning
1) Illegal cant contract and thus tie the hands of future legislations
Spot Zoning
1) Illegal
2) BUT, if Part of the same COMPREHENSIVE PLAN, then they are legal
How to determine amount of compensation
1) Must use the value of comparable land.
2) Must always compensate based on the highest and best use of the land, but to
determine, you must use comparable land i.e. raw land to raw land, in similar
location at an exist of the highway, v. not at an exit.
3) Planning Blight Tactic City announces well in advance where the route of the
proposed light rail will be, allows the market value to decrease, and then
condemns the property.
Hawaii can condemn land of oligarchs then sell it to create more landowners
1) Court will not substitute its judgment of public use for the legislatures
2) Redistribution of fee simples to correct deficiencies in the market determined by
the state legislature to be attributable to land oligopoly is a rational exercise of the
eminent domain power.
3) The mere fact that property taken outright by eminent domain is transferred in the
first instance to private homeowners does not mean it only has a private purpose.
4) It is not essential that the entire community, nor even any significant portion,
directly enjoy any improvement for it to constitute a public use.
a) The unique way titles were held in Hawaii skewed the land market, exercise
of power of eminent domain was justified.
b) Lesees can initiate the condemnation process without constitutional violations.
Kelo v. New London
1) Two longstanding principles that were not at issue in this case
a) Sovereign cannot simply take land from A to give to B even if A is given
compensation.
b) Sovereign can take land from A and give to B if future use by the public is
the purpose of the taking.
i. Condemning for railways
2) The City would not be able to condemn land under the pretext of a public purpose
when in fact the purpose was to bestow a private benefit.
3) Court long ago rejected any literal requirement that property be put into use for
the general public.
a) The question in this case is whether the taking was done for a public purpose.
4) There is no reason why economic development is any less of a public purpose
than the other acceptable reasons.

5) By focusing on a propertys future use, as opposed to its past use, the cases are in
line with the Takings Clause.
6) Once it has been determined that it was for a public purpose, it is the legislatures,
not the courts job, to determine the extent needed.

XXIX.

REGULATORY TAKINGS

A. Airspace
1) While the cujus doctrine has been removed for thousands of feet above ones
property, it is still valid in the immediate reaches of the airspace over the property
a) The flight of airplanes, which skim the surface but do not touch it, is as much
an appropriation of the use of the land as a more conventional entry upon it..
2) The measurement of a taking is the owners loss, not the takers gain.
3) Market value is the normal measure of recovery. And that value may reflect the
use to which the land could readily be converted, as well as its existing use
B. Physical Invasion
1) Permanent physical occupation authorized by the government is a taking without
regard to the interests to the public interests that it may serve
2) Irregardless of the size of the area permanently occupied, a physical invasion is
always a taking.
C. Penn Station
1) Penn Factors that have particular significance
a) Economic impact of the regulation on the claimant
i. Particularly the extent which the regulation has interfered with
DISTINCT INVESTMENT-BACKED EXPECTATIONS
b) The character of the governmental action
i. Physical invasion of the property, or adjusting the benefits for the public
good.
2) Must look to the PARCEL AS A WHOLE
D. TDRs
1) New York
a) Old Penn Station can use TDRs on another adjacent lot that the Penn Station
landowner owns
b) New Owner can sell on the open market
2) Chicago
a) Landowner gets money for TDR right away,
b) City buys and puts the TDR in a bank (ran by the city)
c) City can then sell the TDRs from the bank at a cost determined by the city.
E. First English Luthern Church v. Los Angeles
1) Where the govt.s actions deny use for a period, still need to compensate.
2) Assuming that LA did deny appellant use of all of its property for a period of
years, LA is required to pay fair value for the use of the property during this
period.
F. Nollan v. California Coastal Commission
1) There was no essential nexus between denying the building permit on the top of
the hill and the public good sought (easement to the beach at the bottom of the
hill).
2) Unless the permit condition serves the same governmental purpose as the
development ban, the building restriction is not a valid regulation of land use by
and out-and-out plan of extortion.

G.

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a) It would be okay if you forced them to build a public lookout pad to the side
of their house
Lucas v. South Carolina Coastal Council
1) If you shouldnt be building there anyway, then no compensation is needed.
a) Building a nuclear power plant on a fault line. A power plant may be the only
economically suited structure that can be built, however, it shouldnt be built
there so no compensation is needed when the city establishes regulations
restricting it.
2) If it is a NUISANCE to use the land, then there is NO TAKING no matter if there
is no use left
Dolan v. City of Tigard
1) Not enough rough proportionality between the requirement of allowing the bike
path and giving her a permit to build a bigger store.
a) If they found would likely be used rather than could, then there would be
rough proportionality.
b) would likely or will are required.
2) First establish if there is an essential nexus between the legitimate state
interest and the permit condition enacted by the city.
a) Building the bike path to alleviate traffic conditions from enlarging the store is
an essential nexus.
3) Second, establish if there is a rough proportionality as the required connection
between the projected impact of the petitioners proposed development.
a) Must be a greenway to help prevent flooding from excess water running off
the parking lot. . . rough proportionality is met
b) Must be a bike path that could alleviate traffic congestion . . . No rough
proportionality.
Palazzolo v. Rhode Island
1) The city restricted the filling in of wetlands for a planned development. As a
result, all except a small portion of the land, was rendered economically
unfeasible.
2) The court said that because you could develop a $20,000 area while not being
able to on the $3 million area, it is not a taking. Economic value must be 100%
taken.
3) Get around this buy selling the usable portion, then seeking a taking.
Tahoe
1) Penn Central is the rule
a) Look to the parcel as a whole and determine if there is any economic value
left.
2) Hard to distinguish from First English
a) Tahoe takes the view of the govt.
b) First English takes to the view of the property owner
3) Normal delays in the permit process, zoning changes that cause the owner to not
use his land for a certain amount of time will not constitute a taking
4) The bigger and more complicated the comprehensive plan, the more time the
government gets before having to compensate.

XXX. CERCLA
A. Wait to cleanup until you get sued.
B. CERCLA is Retroactive

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E.
F.

G.

H.

1) Need to get what surrounding plots were used for

2) Uphill does not matter
Govt. Goes After Who is the Easiest.
1) Between parties they may K through liabilities, warranties, etc, but the govt. will
go after who it wants.
PRPs Potentially Responsible Parties
1) The owner and (or) operator of the facility
2) Anyone who disposed of the chemicals
a) Are responsible for
i. Cost of cleanup
ii. Any damages to the natural resources
iii. Any costs assoicieated with the national contingency plan.
No liability when the release was from
1) An act of God
2) An act of war
Due diligence Required
1) You must use due diligence to search for any CERCLA problems when you buy
the property.
a) If you dont find anything and there were problems, you probably didnt use
due diligence.
b) There is no innocent buyer.
2) If you know, you must disclose.
Hazardous Substance DOES NOT MEAN (unless specifically listed)
1) Oil
2) Natural Gas
3) Synthetic gas
Advice
1) Utilize Cut Outs
a) If buying a large farm, cut out the area where the barn was and have the owner
keep that land. This is where the farmers would rinse out their chemicals, and
have a greater concentration of contamination.

XXXI.

FORFEITURE

A. Forfeiture is okay when:

1) The govt. had given prior notice and a hearing
2) As part of a civil penalty suing the land instead of the person
B. 8th Amendment
1) Total seizure of all the money over the mandatory declarations requirement was
excessive and unconstitutional per the 8th amendment.
2) The forfeiture was part of the criminal punishment (whereas in the earlier case it
was part of a civil action) judicial ju ditsu
a) There were two punishments
i. Fine
ii. Forfeiture of all the money (therefore no set limit) - EXCESSIVE
XXXII.