ATTRIBUTES OF ØSHIP & LIMITS:Ø against whom? Protection of 4 things: Econ productivity; future interests (absolute)..
s (absolute).. To create: © law: “to A and his heirs.” Modern Law: “To A” is equitable action for partition (court will divide property or order it sold and proceeds
2) Certainty; 3) Enforceability; 4) fairness. Øship=sector of time &space. Exclude, Use,
Dispose: Exclude: 4 types: 1) intrusion upon one’s seclusion; 2) Public disclosure of
embarrassing private facts; 3) Publicity placing one in false light; 4) Right of publicity:
using another’s name/likeness for another’s advantage. Dispose: 2 conflicting interests:
free alienation (Tx prpty from A to B) on land v.s.Right to restrict alienation (like single
family hoods) Look @ scope/time/CNS to see if restriction = valid. Silent consent: clause in
lease requiring T to get LL consent to reassign/sublease (although LL could previously
withhold unreasonably, modern trend make LL act reasonably because of implied covenant
of good faith/fair dealing‐ absent language to the contrary). PREEMPTIVE RIGHTbefore
property can be sold to 3rd party it must be offered to conveyor/heirs/designated person (to
be reasonable needs duration‐ 14 days to exercise AND life in being +21 yrs maxand
method to calculate price) Gift no restrictions on gift land/just selling. RIGHTS OF
POSESSORS: Wild Animals: Once a person has gained P’ssn of a wild animal (pursuit of
animal is not enough, must deprive it of its natural liberty), he has rights in that animal
superior to everyone else. Ratione Soli: own soil/ owns whats on it. Abandoned Prprty:
(clear & unequivocal) Ø no longer wants to P. Must show: intent to abandon and voluntary
relinquished all right, ⊥, interest. Belongs to: ƒ of prpty, against all others, including former
Ø. Lost Prpty: owner unintentionally and involuntarily parts w/ P’ssn/does not know where
it is (like stolen prpty found by a non‐thief). ƒ holds article in trust as bailee (so Ø can get it
back). Belongs to Ø, but ƒ can keep if SoL expires. SoL runs from when Ø k/sk ƒs I.D.
Mislaid Prpty: Ø voluntarily puts prpty in certain place and then forgets where prpty is
(not lost bc it was voluntary). Belongs: Ø of premises where found against everyone other
than true Ø (no SoL). Treasure Trove: coins/currency concealed by owner, elements of
antiquity. Prpty must be hidden/concealed for such a length of time that the Ø is probably
dead/undiscoverable. Belongs: ƒ against all but true owner.BONA FIDE PURCHASERS: The
problem with a BFP arises when one who buys for value and without knowledge that the $$
has no title. Rule: A $$ cant convey better title than which he holds, Excpt’ns: Stolen: $$
cant convey good title, so Ø may recover from BFP. Title is Void. Excp’n: Fraud: BFP may
be protected. A BFP of a chattel by fraud has voidable title. [If A=Ø, B=fraud; C=ß, A can
get back from B but not C.] Excp’n: Estoppel: If thief is a merchant of goods the same
type the stolen property is, A cant recover from C if C=BFP, eventhough title would be
“void.” BAILMENTS: rightful P’ssn of goods by one who is not their true Ø. Elements: 1)
Deliveryfrom bailor to bailee, with expectation that it will be returned on demand in the
same condition with which it was delivered (strict liability for misdelivery for contractual
bailments. 2) Sole Custody‐ (burden on Bailee to show lack of negligence) 3) Control.
Duty during custody: While bailee (holder) has the object in his P’ssn, he is liable only
for lack of care, but standard depends on who benefits. Mutual Benefit: bailee must use
ordinary diligence. Only benefit Bailor: bailee only liable for gross N. Only benefit
Bailee: bailee must use extraordinary care. Only liable if some degree of fault.
Contractual limitations: bailee cant relieve himself from liability for gross N.
Acceptance: Bailor must know of terms & accept terms. Involuntary / Constructive;
bailment starts when property is lost, if never found it is when the D should have noticed
lost Prop and acted as a bailee GIFTS: A present Tx of property by 1 person to another
w/out CNS. Generally not revocable. 1) Donative Intent: DOR must intend to make gift.
Intent must be present Tx, not Tx effective in future; Present Gift of Future Enjoymnt: if
present gift of right, even though enjoyment later∴ok. 2) Delivery (evidence of intent,
must be as perfect as nature of property/circumstances will permit. IE, Physical Delivery,
Symbolic Delivery (instrument divests owner of dominion/control—deed), Constructive
Deliverymeans to obtain gift (key); 3) Acceptance (assumed for items of value). Inter
vivos take effect presently and irrevocably. Causa Mortismade in apprehension of death
from an existing peril/illness. Take effect presently, but revocable by 1) DOR’s express
revocation 2)recovery from peril 3)outliving DEE (Stricter delivery— disfavored wills).
Acquiescence in retention of possession‐ may prevent DOR from revoking causa mortis
gift. Replevin/Detinue‐ CL action to recover wrongfully taken pers. prpty. Conditional
Gifts: Fault rule (look who broke engagement, give it to other) No Fault (returns to donor),
Montana‐ is donee’s ADVERSE POSESSION(AP): Like SoL for ƒ, SoL will eventually bar Ø of
property from recovering P’ssn (ejectment). Once SoL passes, wrongful P gets ⊥to land by
AP. Encourages efficient use of land 4 Reqirmnts of AP: 1) Actual or Exclusive (keep
public off, especially real LO) 2) Open and notorious: fly flag, treat land as own against
rest of world. P use of property must be similar to that which a typical Ø of similar propery
would make 3) Hostile (without Ø’s consent) Good faith: some cts must have BF belief
that he has title. Mistake/Bad faith: doesn’t matter b/c policy promote efficient use of land.
4) Continuous‐ must be continuous throughout SoL. [If Ø reenters prpty=interruption of
AP, ∴SoL restarts from scratch / consistent with nature of land (summer home). Tacking:
P’ssn of 2 adverse Ø (one after the other) may be “tacked” if the two are in privity (have
some continuity of interest—sell, gift, inherit, etc.) with each other. Their P’ssn can be
added together to meet SoL. But if no privity, tacking is not allowed.[cant tack if 1st P
abandons and then 2nd P comes onto land]. Excp’n: disabilities/age=extra time needed for
SoL. Tacking on Ø’s side: if Ø owns in 1950. A enters. Ø conveys to X in 1960. A will get
land in 1971 (under 21 yr SoL) even though only 11 yrs against X). Rights of AP: when
AP, P gets ⊥. But cant ® b/c has no deed. But can get Judicial determination of AP which
can be recorded as if it were deed. ß Need to inspect: b/c ⊥of AP cant be ®, ß cant be
sure “Ø” actually still owns the prpty ∴ ß needs to physically inspect prpty. AP gets ⊥ only
to portion of property actually occupied. Excp’n: Constructive AP: if P enters under
color of title that is invalid for some reason, P will gain ⊥to entire area described in the
doc, even if he actually possesses only a portion. If there is a conflict between 2 person’s
whose interests are solely possessory, general rule=1st P has priority. Good Faith
Improver: If AP erects a fixture on prpty: ©L: harsh against AP. Ø has right to force AP to
remove (injunctive relief). Modern: Compromise doctrine (he who seeks equity must do
equity) a good faith improver can get relief. Whoever keeps pays (AP would pay for land, Ø
would pay for building. (chattelimprove greater than P, keep it but compensate for value of
original chattel. Junktruck, identity of property has changed  improver keeps it, but
must pay for junk). Freehold Estates: Heirsthose who take through intestate succession.
Escheatsomeone has no will/heirs, P is returned to state. Conveyors‐ those who take
through inter vivos. Classnamed group of takers (my ‘children’ are the class). Present
(possessory) estate: right of present possession. Future interest: right to possession
at a future time. Seisin: combines notion of ownership of property w/right to possession‐
can never be a GAP in seisin. FEE SIMPLE ABSOLUTE (FSA): Best estate ‐ absolute largest
estate permitted by law. Ø interest in real estate (fee) of infinite duration (simple) w/ no
good enough FS DEFEASIBLE: holder of defeasible my hold or convey property, but he
and those who take from him must use property subject to a restriction. 3 types:FS
Determinable (FSD): automatically comes to an end when stated event occurs. FSD
is used to prevent the property from being put to a certain use which GOR opposes.
Limitation controls even after it is passed. POSSIBILITY OF REVERTER (POR): possibility that
⊥will revert to him if stated event occurs. creator of FSD always keeps a POR. To create:
“so long as…” or “until…” or “during…”. FS SUBJECT TO CONDITIONS SUBSEQUENT (FSSCS):
if stated event occurs, does NOT automatically end. Instead, GOR has right of entry—
but nothing happens until he actually exercises that right. To Create: “upon express
condition that…” or “provided that…” & some states require statement that GOR may
enter property. FS SUBJECT TO EXECUTORY LIMITATION (FSSEL): estate passes to 3rd
person (other than GOR) if an event occurs. To create: “…but if x occurs, then to…”
LIFE ESTATE: an interest which lasts for the lifetime of a person, “measured” by a
person’s lifetime. To create “To A during his lifetime”. Defeasable “to A so long as she
remains a widow, then to B” (this is a life estate determinable, bc when dies, no longer a
widow). LE PUR AUTRE VIE: measured by the life of someone other than GEE “to A for life of
B then to C. If GEE dies before end of measuring life, then estate treated as personal Prpty,
which passes by will or intestacy. Duties of Life Tenant: May not commit Waste (may not
unreasonably impair value of property. Must therefore make reasonable repairs, not
demolish structure, pay all prpty taxes, etc. Powers of Life Tenant: can’t convey a FS or
any other estate > than the life estate he holds, but may convey interest he does hold or a
< one. ”. LEASE non‐freehold estate, ‘chattel real’‐ not considered real property. Leases
given by life tenants generally terminate upon life tenant’s death. Freehold estate:
estate that is or may become possessory. POSSIB. OF REVERTER: GOR of FSD
automatically gets POR. POR can be inherited, willed, but some states don’t let inter vivos.
RIGHT OF ENTRY: GOR of FSSCS gets RoE. Commonly: [FSA conveys a FSSCS and gets
RoE.] A GOR who holds a RoE also holds a reversion (see below) at the end of lease term.
Alienability: if RoE is incident to a reversion, it passes w/ the reversion [so, if LL sells land,
new Ø gets RoE incident to reversion]. REVERSION; holder of a vested estate transfers to
another an estate of shorter duration Ex. A holds FSA in blackacre, he conveys “to B for
life.” A keeps a reversion, which will become possessory in A (or his heirs) upon Bs death.
Distinguished from POR: If GOR has given away a FSD, he retains only a POR. If he has
given away something less than a FS, he retains a Reversion. Reversions are completely
alienable. They may pass by will, intestacy or inter vivos.) REMAINDER: future interest
created in someone other than grantor which can become possessory upon natural
termination prior possessory interest created by same instrument (to A for 10 years, then
to B). 3 Requirements: 1) GOR must convey a present possessory estate to one
Transforee; 2) GOR must create a nonpossessory estate in another transforee by
same instrument; 3) 2nd, non possessory estate remainder) must be capable of
becoming possessory only on the natural expiration of prior estate. no remainder after FS.
Ex. “Ø conveys to A for life, remainder to B and his heirs” (B has remainder). Following a
Term of Years: an estate following term of years=remainder. Ø conveys “to A for 10 yrs,
then to B and his heirs” (B has remainder, even though wouldn’t be at common law).Rule
Against Perpetuities (RAP): Prevents a person from determining the lineage of his
property. Most an Ø can decide is life +21 yrs. Contingent (unascertained persons) subject
to RAP, but vested are not RESTRAINTS ON ALIENATION: A Restraint on the alienation of a FS
is generally void. Life Estate may be subject to RoA. USE RESTRICTIONS are generally
upheld. Defeasible Estates (ex. FSD) are generally upheld. CONCURRENT OWNERSHIP: 3
types: JOINT TENANCY: two or more people own a single, unified interest in real or personal
property. Survivorship: Each JT has RoSp (if A & B own in JT, and A dies, B becomes sole
Ø). Not inheritable, equal shares, Unilateral severance. 4 Unities 1) Time 2) Title (JT’s
must get interest at same time from same instrument) 3) Interest (equal shares‐ increase
proportionally at death). 4) Possession: Each JT is entitled to occupy the entire premises,
subject to same rights as other tenants. To Create: “To A and B as joint tenants w/ RoSP”
At common law, A (Ø of FSA) cant create JT btw himself and another by conveying “To A
and B as JT”‐need a straw man. But in many states, this is permitted by statute or case
law. Severance normally results in TiC. Ways to sever: Conveyance by one JT: A JT may
convey his interest to a third party. This destroys JT. Ex. A & B are JT. A conveys interest to
C, destroying JT. B and C are now TiC. 3+ JTs: if 3 or more JTs, a conveyance by one of
them to stranger will produce a TiC between stranger and original JTs, but the JT will
continue as between original members. Mortgages; title theory state‐ Yes severance, lien
theory state: No. Intermediate: mortgage = conveyance upon default Murder‐ Slayer’s
act‐ A deprived of benefit of B’s murder (murder usually severance of JT, A gets 50%, B’s
heirs =50%). TENANCY IN COMMON modern presumption‐Shares may be unequal, are
inheritable, unilateral partition. Each T has right to possess property subject to every other
T’s right to possession regardless of % ownership. No RoSp between TiC. Upon death, can
pass interest in will /intestate. Most states favor TiC rather than JT unless Husband and
Wife. Intestacy Statutes create TiC if no will available. TENANCY BY THE ENTIRETY:
conveyance to 2 persons who were H&W automatically results in TbtE. Many states
abolished this, but there is a rebuttable presumption that conveyance to H&W=TbtE. No
Unilateral Severance, so as long as both are alive and remain H&W, neither can
unilaterally break the tenancy. Rights of creditors TE indivisible, creditor can’t get at
property (debt created time of accident)‐ creditor wants both spouses to sign onto debt.
Partition must be agreed on bilaterally. Partition in kind‐ physical partition by owners,
universally favored unless prejudice results (each share worth less than %whole).
Partition by sale‐ owners keep % of cash proceeds. Oweltydifference paid to another to
equalize partition. Divorce: If the parties are divorced, the TbtE ends. Parties than treated
as TiC. RELATIONS BETWEEN COTENANTS: Each cotenant, regardless of type of co‐tenancy,
has the right to occupy the entire premises, subject only to a similar right in the other co‐
tenants. (parties may make an agreement to the contrary). If property solely occupied by 1
of the co‐tenants, he normally has no duty to pay rent of any kind to the other non‐
occupying co‐tenant. 2 Excp’ns: 1) Ouster: If occupying tenant refuses to permit the
other tenant equal occupancy, ∴ he ousted other tenant and must account to the ousted
cotenant for the latter’s share of the fair rental value of the premises. Occupying tenant
will have a duty to account if he depletes the land. If one Tenant makes payments on
behalf of the property (mortgage payments, property tax, etc) that tenant does not have
an automatic right to collect the share form other tenant. BUT the paying tenant may
deduct the payments from rents he collects from 3rd parties, or will be reimbursed for the
payments before any proceeds from a sale are distributed. Any JT or TiC may bring
distributed. Repairs‐ may get contribution from others as final accounting of partition/sale
(contribution offsets fair rental charges of improver’s rent‐free possession.
Improvements‐ cotenant can recover for enhanced value of improvements (but not of
changes that decrease value, may have to pay for changes resulting in decreased value).
Statute of Anne TOC owes rents/resources to other T’s if exploited beyond fair share
LANDLORD AND TENANt: SOF: Any lease >1yr must be in writing (or else it creates a estate
at will. To figure out whether lease is >1yr, most cts add together the fixed term and any
period for which the tenant has the option to renew. ESTATE FOR YEARS (E4Y): Most
leases : fixed period of time. Must have a Start date and End Date which must be Fixed.
Termination: no additional notice of termination must be given by either party—on last
day, tenancy simply ends and T must leave the premises (or stay and it will become a
different type of estate). PERIODIC TENANCY: One that continues from one period (yr to yr,
month to month) to the next automatically, unless either party terminates it at the end of
a period by notice. Creation by Implication: A lease with no stated duration (ex. T
agrees to pay L $20/mo but with no end period)=Periodic tenancy. Also, created if T holds
over, and LL accepts rent,. Termination: Auto‐renewed unless 1 party gives a valid notice
of termination. At Common Law, notice for yr to yr lease= 6mo. If <1yr, full period notice
required. Notice had to set the end of a period as the termination date. Modern: Most
states only require 30 days notice for termination. AT WILL TENANCY: has no stated
duration and may be terminated at any time by either party. Created by
implication: If T takes possession with Ls permission, with no term stated and no period
for paying rent defined, =at will. TENANCY AT SUFFERANCE: only happens when T holds over
at the end of a valid lease. LL has right of election between 1) evicting the T; & 2)
holding him to another term as T (which would create a periodic Tenancy, and length of
period is determined by way rent was computed under the lease which terminated.
TENANT’S RIGHT OF POSSESSION AND ENJOYMENT: Cts split whether L impliedly warrants to T
that he will deliver actual possession at the start of lease term—Arises when past T is
holdover. “American”: LL has a duty to deliver only legal possession, not actual possession.
“English” (majority): LL must deliver actual possession. T has right to terminate lease &
recover damages for the breach if the prior tenant holds over and L does not oust him. T
may also continue lease & get damages for the period until prior T is removed. QUIET
ENJOYMENT: violated by 1) claims of Paramount Title; and 2) by acts of L, or persons
claiming under him, which interferes with Ts P’ssn or use of Prpty. Paramount title: L,
by lease, impliedly warrants that he has legal power to give P’ssn to T for term of lease. If
party succeeds in claiming ⊥to the prprty which is superior to Ts claim under the lease (a
claim of paramount ⊥), L has breached the Warranty. If T discovers the paramount title
before he takes P’ssn, he may terminate the lease. Once T takes P’ssn, he may Not
terminated lease merely on grounds that a 3rd person holds a paramount title. But if 3rd
party asserts his paramount title & T is evicted, T may terminate lease and recover
damages. Interference by LL or 3rd person: if LL or someone claiming under LL, interferes
with Ts use of premises, this is a breach of Quiet Enjoyment. Conduct by Other
Tenants: if other Ts make the premises uninhabitable for T, traditional view is that L is not
responsible (unless they use their portion for immoral or lewd purposes, or conduct is in
common areas). Modern view is to impute the acts of other Ts to LL where there acts are
in violation of the other leases and LL could have prevented the conduct by eviction.
Actual evictionLL deprives T of possession of part or all of premises. (Even 1% will not be
de minimis if it is important)‐ Partial eviction‐> All rent suspended/abated until eviction is
fixed. CONSTRUCTIVE EVICTION: It is a Δ. if use or enjoyment is substantially impaired (ex.
Excessive noise, odors) eviction is constructive. 1) Breach of lease covenant. 2) T must
vacate in reasonable time. 3) Breach is of grave and permanent character (health code
violations). If still ‘enjoying’ premises, owe rent.. CONDEMNATION: Gov’t uses its right of
Eminent Domain to condemn all or part of the leased premises, T may have a remedy. If
Govt does total taking, Lease terminates & T does not have to pay rent. If partial taking
(any portion) at common law, lease is not Terminated. T must continue paying full rent
(but gets a condemnat’n award which LL gets from the gov’t). Modern trend is that T can
terminate if the condemnat’n significantly interferes with his use and to give him reduced
rent even for small interference. Illegality: if T wants to use prpty for illegal purposes, and
L knows, ct will probably treat lease as unenforceable. PERMIT: If T must get a permit for
intended use, but cant, lease remains valid. Condition of the Premises. Common
Law: Caveat emptor‐ T takes premises ‘as is’, LL has no duty to repair‐ except short term
leases, building under construction, when LL fraudulently misrepresents condition of
property. Waste: classic view: Voluntary: tenant makes changes in building to suit taste,
even ↑value is waste. LL’s reversion is for same condition (longer lease/cheaper to return
to condition ‐>allowing changes) Permissive allow premises to deteriorate (broken
window)‐ Tenant must make reasonable repairsliable for consequential damages. If T
leaves, can raise Δ of Constructive eviction if terminates lease and shows premises are
uninhabitable, but must leave premises. Modern implied warranty of Habitability: Vast
majority of states: If LL leases residential premises to T, implies that premises are in at
least good enough condition to be lived in. If LL breaches warranty, T may withhold rent &
use withheld rent to make repairs himself. Some cts hold that if T k/sk of defect before
moves in, he waives the defect and the IWH not apply. Standard to determining
Habitability: building code violation is at least evidence of IWH breach, but most courts
need proof of violation + a substantial threat to Ts health or safety. If threat to health or
safety, don’t need violation. Some courts hold that age of building and amt of rent charged
may be considered to determine breach. IWH applies to Residential, but not always
commercial leases. A waiver of IWH is not effective (but can make separate writing, with
separate CNS like lower rent that T will make repairs himself. Remedies for breach of
IWH: 1) T terminates lease & vacates premises; 2) withhold rent, but may have to deposit
in escrow to show good faith; 3) Use rent for repairs. T must notify LL of intent to make
repairs & deduct). Retalitory eviction is Barred. DESTRUCTION OF PREMISES: If premises
damaged bc of fire, flood, etc. at common law T must keep paying rent and may not
terminate lease. Modern View: if premises uninhabitable bc of above, T may terminate
lease & stop paying (bc that’s the only remedy he has). Tort Liability of LL and T: While
T is in P’ssn, he is treated like an Ø in tort liability of those who come on premises. Must
warn of known dangers depending on class of guest. LL is generally not liable for physical
injury to T or Ts guests. Excpt’ns: Concealment: LL liable if he conceals, fails to disclose
a dangerous condition he k/sk. LL has no duty of inspection to find hidden defects. If LL
tells T about danger, LL not liable to Ts social guests. LL has duty of reasonable care to
keep common areas safe & to use reasonable care to prevent unauthorized access to
building. If LL attempts to make a repair, he is liable if repair is done negligently or makes
more unsafe. If LL does no make worse or lull T into sense of safety, cts are split whether L
liable. If clause in lease gives LL duty to repair, he is liable to T or Ts guests. L must keep
building according to building codes. LL liable if breaches to IWH causes injury to T or Ts
guest If T holds prpty open to public, LL has duty to inspect and liable for harm to public.
Some cts just require T to show L didn’t use reasonable care. Most states do not allow
exculpatory clauses (relieving LL of N). T’S DUTIES: pay rent. If L materially breaches
implied/express obligations, T is temporarily relieved of duty. T has duty to make minor
repairs under common law. But under modern, LL has duty b/c IWH. FIXTURES: an item of
Personal prpty which is attached to the land. Right to Affix: T can attach fixtures if this
would not damage value of LL’s reversion. T may Remove a fixture installed by him if
removal will not damage LL’s interest (T must normally restore area to the way it was
before fixture attached). T has implied duty to behave reasonably. LL’s remedies:
Security deposit: LL may be required to pay interest on security deposit. L must return
deposit to T after subtracting damages if lease terminates. If T breaches and LL relets, LL
must return deposit to T (‐) damages. If a ß buys L’s interest, ß must account for deposit at
end of lease. Acceleration clause: found in lease. If T breaches, L may require that all of
the rent for rest of lease be paid @ once. Enforceable, but cant demand possession of
premises if T breaches but wishes to stay. EVICTION: lease gives LL right to terminate lease
if T fails to pay rent or otherwise materially breaches. LL cant change locks—can get
summary proceedings (speedy trial of Ls right to immediate possession and limit the Δs T
may assert). If T holds over, LL entitled to damages as well as eviction. If T ABANDONS, LL
has 3 choices: 1) Accept surrender: has effect of terminating and no other rent is due. 2)
Relet on Ts behalf: LL must notify T. 2 advantages: a) T remains liable for rent due if no
new T is found; b) if new T pays less rent, T is liable for difference. 3) Leave vacant: cts
are split: traditional: LL has no duty to mitigate; modern: LL has duty to mitigate & if
doesn’t, T is off the hook. Distress (distraint)‐ common law = LL may take tenant’s
possessions and sell them to pay back rent if provided in lease, Modern = LL can take
possessions only to hold as security TX AND SALE BY LOR; ASSIGNMENT AND SUBLETTING BY
LEE. ASSIGNMENT V. SUBLEASE. ASSGNMNT: Tx of full interest (L can go after T1 or T2 for
rent, unless L/T2 agree to release T1; T1 can get rent from T2 if L goes after T1): T2 bound
by Promises that run with land (promises run if T&C‐directly relates to land, not collateral
matter of personal nature‐ most things T&C); T2 bound by other promises if agrees (full
assumption) LL can only get rent from AEE while in P’ssn unless agreed otherwise.
SUBLEASE: TX LESS THAN FULL INTEREST; (L cant get T2); T2 not bound by promises unless
agree w/ T1. CONSENT TO ALIENATION: not required unless a clause, if clause majority rule:
L must be reasonable in denying consent; Clause implied if LL gets % of profits or T has
special skill trait. TX BY LL: Notice requir’d by statute to inform of new LL. EASEMENTS AND
PROMISES CONCERNING LAND: EZMNT=a privilege to use the land of another,
nonpossessory right. AFFRIMATIVE EZMNT: entitling the holder to do a physical act on
another’s land (ex. A gives B right of way so B can pass from own property to a street. B
holds affirmative ezmnt). NEGATIVE EZMNT: enables the holder to prevent the Ø of land
from making certain uses of land. These are rare. (ex. A owns X, which is next to ocean; B
owns Y, which is separated from ocean by X. A gives B ezmnt of light & air, which prevents
A from building anything on X to inhibit view of ocean. B holds negative ezmnt).
APPURTENANT VS. IN GROSS: APTNT: one that benefits its holder in the use of a certain
piece of land. BENEFITTED LAND = dominant tenement. BURDENED LAND=servient
tenement. For easement to be APTNT, benefit must be immediately tied to particular piece
of land (dominant estate). IN GROSS: benefit not tied to any particular piece of land. (Ex. Ø
gives B the right to come onto Øs land anytime to use pool. b/c right not given b/c of B’s
ownership of land, the easement is in gross). PROFIT A PRENDRE: right to go onto the land
of another and remove soil or product of it (ex. Mine minerals, drill oil, fish, etc). Treated as
same as Ezmnt. WAYS TO CREATE EZMNTS: 1) EXPRESS CONDITION: if created by deed or will.
SoF: xpress ezment must be in writing. EZMNT BY RESERVATION: when sells land, reserves
easement for himself. If Ø owns 2 parcels, can create easement in sale of 1 to benefit
parcel 2 in deed, even if sale of 1 does not mention easement. Grant; A conveys interest
in easement to B (transferee gets it). CREATION BY IMPLICATION: 2)PRIOR USE: does not
have to be recor’d. 3 Reqrm’nts: a) land must be divided up, so that the Ø of a parcel is
either selling part and retaining part, or selling both parts; b) the use for which the implied
ezmnt is claimed must have existed prior to severance; and c) ezment must at least be
reasonably necessary to enjoyment of dominant tenement. In most states, easement of
light and air cant be created by implication. 3) EZMENT BY NECESSITY: if 2 parcels are so
situated that an ezmnt over one is strictly necessary for the enjoyment of the other.
Require: a) Common grantor: at one time, both dominant and serviant tenement were
owned by same person. b) no prior use: there does not need to have been prior use b4
parcels split up. Most common example is when a percel is landlocked. 4) EZMENT BY
PRESCRIPTION: gained under principles of adverse possession. If A uses Bs land for > than
SoL governing ejectment, he gains ezmnt by prescription. a) adverse: not w/ Øs
permission; b) continuous: infrequent use is no good; c) open & notorious; d) actual;
tacking on dominant side of ezment is good. Scope of use is determined by looking @ use
that took place during SoL period. If broad‡good. 5) EZMENT BY ESTOPPEL: when A allows B
to use A’s land under circumstance where A k/sk that B will substantially change position
believing that permis’n wont be revoked, and B does change position (builds house, relying
on use of A’s land to get to road), ezmnt occurs although no permis’n expressly granted.
SCOPE OF EZMNT. DEVELOP’NT OF DOMINANT ESTATE: ct will allow a use that increases due to
the normal, foreseeable development of the dominant estate, so long as it does not
impose an unreasonable burden on the servient estate (walkway ezmnt that benefits 3
houses instead of 1 will be ok). User of dominant estate is normally not allowed to extend
his use of the ezmnt so that additional prpty owned by him is benefitted. (if ezmnt A is for
parcel X, and Ø of ezmnt buys Y, cant use A to get to Y). SERVIENT Ø’S RIGHT TO RELOCATE
EZMNT: common law: ezmnt is fixed (no relocate no matter what) Modern: servient Ø may
relocate ezmnt if it doesn’t materially inconvenience dominant Ø. TRANSFER AND
SUBDIVISION OF EZMNT: when ⊥to servient estate is Tx, burden ezmnt remains with the
prpty. (Ø of ezmnt is valid against prpty owned by new Ø). Tx of benefit: if benefit runs
w/land depends on whether ezmnt is aptnt or in gross. Tx of ezmnt aptnt (one that benefits
particular land only) will normally pass w/Tx of the dominant estate. Subdivide dom estate
is ok so long as doesn’t increase burden too much. Ezmnt in gross (one that benefits
person): common law: non‐Tx. Modern view: commercial ezmnt in gross (ezmnts used for
economic purpose) =ok (phone company wires across land, ok even if land Tx). Non‐
commercial ezmnt in gross: some allow, but look at intent to allow asgnmnt (look for CNS
to A for the Tx of B’s ezmnt across A’s land to B’s friend C). TERMINATION OF EZMNT. Tx by
abandonment need clear & unequivocal. Ezmnt holder’s words alone are insufficient to =
abandonment. Intent + conduct: if holder intends to abandon and actions manifest that
intent, will be held to have abandoned and ezmnt will be extinguished (such as non‐use
may manifest intent to abandon). LICENSE: right to use another’s land that is revocable at
will of licensor. No SoF, so can be created orally. [Tickets to sports event and parking lot
use are license and can be revoked.] Excpt’ns to revocability: License is irrevocable if
would have been ezmnt except for SoF and licensee makes substantial expenditures on
land in reliance on the licensor’s promise that the license will be permanent or of long
duration. COVENANTS RUNNING WITH THE LAND: a K btw. 2 parties that b/c meets addit’l
requirmnts, is binding against one who later buys the POR’s land, and/or enforceable by
one who later buys PEE’s land. Covenant is subject to legal rather than equitable relief (so
money damages are good). Covenant running w/land must meet SoF. Q? when do they run
w/land? Personal: only enforceable between original covenanting parties. Real
(restrictive) Covenant enforceable upon land; runs with the land (benefits land): some cts.
allow oral covenants, some cts view as interest in land and ∴ need writing (for SoF):
Restrictive Covenant, different from FSD, because no PoR, can only get injunction and/or
damages. ENFORCEMENT V. SUBSEQUENT PURCHASERS: K law governs relationship btw.
original parties to real covenant: in order to enforce against subsequent parties, must: 1)
Covenant was enforceable (Reasonable: part of original plan or scheme—not arbitrarily, ß
had notice, doesn’t violate public policy); 2) Original parties intended covenant to run w/
the land (have covenant actually SAY assigns, heirs, successors, or runs with land), burden
of promise will not run w/ land if held in gross, because covenants on property held in
gross restrict land without benefiting anyone; Excpt’n: developer builds adjacent
developments that are uniform but sells them all (better practice: if you are developer,
make dominant estate like pool club house so it will not be in gross, it would benefit
dominant estate); 3) Touch and Concern: Covenant directly relates to land, not merely
collateral matter of personal nature. Physical effect not necessary, but must affect 1
party’s legal rights as landØs, payment of money sufficient—ie. homeowner’s fees); 4)
Horizontal Privity: (party seeking enforcement must show some “conection of interest”
between original covenanting parties—such as conveyance between ß and $$, ie. land Tx
btw A & B); 5) Vertical Privity: (Burden side only)—D must succeed to entirety B’s estate;
6) Notice: If D=no notice=BFP ∴not held to covenant (that’s why we RECORD deeds/plats
for constructive notice). Affirmative: must pay condo fee; Negative: no commercial
activity. Termination: If original purpose of covenant cant be accomplished, and
substantial benefit will not come to the entire restricted area (parcel ABC) by enforcement,
covenants no longer stand if subject property (A) has greater value when used for other
purposes. Zoning Ordinances: follow stricter of two (zoning ordinances and restrictive
covenants) Uniformity‐ developer may prevent deviations from master plans, but he
must exercise reasonably not to destroy master plan, developer can deviate from plan on
lots it owns if they are rerasonable. Green Belt: separates lots (those subject to from those
not subject to restrictive covenant) so don’t look like they are part of neighborhood.
EQUITABLE SERVITUDES (NO PRIVITY, GENERALLY NEGATIVE, RECIPROCAL NEGATIVE EASEMENT,
CAN ONLY GET INJUNCTION): You cant put a gas station on your property so I cant put one on
my property. (reciprocal negative easement). Don’t need horiz/vert privity. Remedy =
injunction. ZONING & PUBLIC LAND USE CONTROLS: Government may take private property
for public use, but must compensate. Land use control will not normally equal taking. But if
reg. drastically interferes with use of land, it may be an implicit taking. If state regulates in
line with police power, no compensation is needed. (ex. Zoning regs, protection, etc. ‡
taking) But if reg goes too far, it will be a taking. Principles: State reg ‡taking if it
substantially advances legit. state interests. Must be tight fit btw. interest & reg. If reg
deprives owner of all economic viable use = taking. If reg drasticly reduces value of
owner’s prpty (diminuation of value)=taking. If use being prevented is noxious/harmful ‡
taking. INVERSE CONDEMNATION SUIT: if reg so broad, reg will be struck down but can get
damages for temporary taking while red in effect. Zoning: Use Zoning: divided into
districts; Density Zoning: controls density of population /construction (min. lot size, min.
setback, height limits). If zone deprives owner of all viable use of land = taking. Procedural
Due Process: if zoning is administrative (granting a variance or special use permit) entitled
to hearing. Substantive: if reg fails to have rational relation to permissible state objective,
no good. Requirements for Variance: 1) denial would result in unnecessary hardship to
Ø; 2) need for variance is caused by problem unique to Øs lot; 3) not inconsistent with
purpose of ordinance. Exclusionary zoning: use of law to exclude certain types of
persons and uses. May violate equal protection (cant have high min‐acreage requrmnt,).
May be attacked on fair hosing act (need to show discrimin. effect). Mt. Laurel Case: NJ
says town must allow its fair share of region’s demand for lowincome housing. Affirmative
measures must be taken by a town to cause such houses to be built. Subdivision
regulation: regulate process of subdivision (dividing 1 parcel into smaller ones).
Moratoriums upheld if will achieve important local goal. HISTORICAL AND ENVIRONMENTAL
PRESERVATION: prohibit the Ø from altering or demolishing the building w/out special permit.
Generally Upheld, so long as: 1) gives reasonably precise stanards so it is not arbitrarily
enforced; 2) does not violate 5th A. Best chance to challenge preservation scheme is to
show deprivation of economic use. Penn Central case: can prevent altering but allowing Ø
to continue present use is not a taking. TRANSFERABLE DEVELOPMNT RIGHTS (TDR) given to
Ø: may Tx his development rights from preserved building to other nearby parcels. Will
ease an otherwise taking. Environmental Protection: regs that attempt to maintain open
areas by limiting or prohibiting certain types of development. (Urban park land—likely a
taking, but ok if allow TDR). Eminent Domain: power to take private property for public
use. Don’t through condemnation. (Ø can bring inverse condemnation action—saying
taking occurred & he must be paid). Requirements for Eminent Domain power: 1)
Prpty must be put to a public use (rationally related to conceivable publc purpose‐losely
interpreted); 2) just compensation must be paid (highest and best use the property could
be put to under zoning regs). Urban Renewal: city may condemn private land, turn it to
private developer for private use.LAND SALE KS, MORTGAGES AND DEEDS: SoF: the K must
be in writing: 1) names of the parties; 2) discription of land to be conveyed; 3) Purchase
Price; 4) signiture of party being charged. Part performance excpt’n: a party who has taken
action in reliance on the K may be able to gain at least limited enforcement. Acts by $$: $
$ makes conveyence under K, will then be able to sue for the agreed upon price, even if
agreement to pay that price was oral. Acts by ß: Cts are split whether ß’s acts = part
performance = specific perf. Pss’n+payment: if ß takes Pss’n & makes payments, $$ will
have to convey Prpty. Improvements: ß whotakes Pss’n & makes permanent
improvements, or changes position in reliance = $$ to convey. ß must show his part perf.
was clearly in response to oral K. In suit for damages: Time stated in K is of the essence. If
parties $$ refuses to close on date specified in K, ß may sue for damages for delay. In suit
in equity: may obtain specific performance even though he is unable to close on specific
day (so long as he can perform within a reasonable time after the scheduled day).
MARKETABLE ⊥: ⊥free from reasonable doubt about whether the $$ can convey the rights
he purports to convey. Must be free from reasonable doubt that the ß can sell in the
future. Implied in every K. DEFECTS MAKING ⊥UNMARKETABLE: 1) Record chain: anything
in the prior chain of title indicating that the vendor does not have the full interest which he
purports to convey, may be a defect. 2) Encumbrances: Even if the vendor has valid title
to the property, an encumbrance on the property will normally constitute a defect.
Mortgage or lien: outstanding mortgage = encumbrance making ⊥unmarketable (but $$
who is under mortgage has right to pay off mortgage at closing out of sale proceeds). Liens
are defects leaving ⊥unmarketable. An ezmnt = defect if it reduces the full enjoyment of
the premises. Use restrictions (private covenant whose burden runs w/land, to the effect
that only res. structures will be built) may =defect. Most courts treat build’g code
violations ‡ encumbrance on ⊥, but violation of Zoning ordanence = encumbrance.
Agreement: In K of sale (normally) parties may agree that certain defects will not
constitute unmarketable ⊥. Ex. ß and $$ agree that particular ezmnt held by X across the
prpty will not render ⊥ unmarketable. ß on notice of defect: buyer may be held to be on
notice of certain defects, and ∴ held to have implicitly agreed to take subject to them. $$
title is not required to be marketable until the date set for the closing (ß cant disaffirm K
until date of closing based on unmarketability). Remedies for failure to perform a land sale
K: 1) suit for damages (difference between the FMV and K price—benefit of bargain rule);
or 2) Specific Perf: order to convey property/buy property. Deposit: if ß is unable to close
on specific date, cts will not allow him to recover his deposit. Equitable conversion:
courts treat signing the K as vesting in the ß equitable ownership of land ($$ becomes
equitable owner of the purchase price). Risk of Loss: b/c ß gets equitable ownership of
land as soon as K is signed, Risk of Loss immediately shifts to him (true even if the ß never
takes possession prior to casualty; hurricane after sign K but before possession ∴ sucks).
Excpt’ns: 1) $$ bears any loss resulting from own negligence; and 2) $$ bears loss if at the
time it occurred, he could not have coveyed marketable title (so if ß signs K before closing
when mortgage still out ∴ $$ is liable). MORTGAGES AND INSTALLMENT KS: MORTGAGE:
financing arrangement, in which a ß or Ø receives a loan, and prpty is pledged as security
to guarantee repayment of loan. 2 docs associated w/ every mortgage: 1) note: ß/Ø’s
personal promise to make repayments. If default & foreclosure and proceeds ‡ outstanding
debt, note = basis for deficiency judgement against borrower (MOR) for balance; 2)
Mortgage itself is doc which gives Lender (MEE) the right to have prpty sold to repay loan
if borrower defaults. Mortgage gives MEE an interest in land, Mortgage must be ®. Sale of
Mortgaged Property: When mortgaged prpty is sold, usually mortgage is paid off at the
closing. But prpty can be sold w/out paying the mortgage by: 1) having ß take “subject to”
the mortgage, or 2) having ß “assume” the mortgage. Subject to: if ß takes “subject to”
the mortgage, ß is not personally liable for payment of the mortgage debt. MEE can
foreclose on prpty if ß doesn’t make payments, but MEE may not sue ß for any balance still
remaining on loan after foreclosure. (MEE cant get deficiency judgment against ß, but can
go after original MOR ($$). Assumption: If ß assumes payment of mortgage, he is liable
both to the original MOR and the MEE for repayment of the mortgage loan. Thus, MEE can
get a deficiency judgment against the assuming ß. Foreclosure: process by which the
MEE may reach the land to satisfy the Mortgage debt, if MOR defaults. Judicial Foreclosure:
MEE initiate law suit and actual sale is under supervsion of sheriff. Private foreclosure sale:
Some states allow MOR to use a doc called “deed of trust” (DoT) rather than a mortgage.
DoT allows the MEE (or 3rd person) to hold prpty as trustee and to sell it in private sale if
MOR defaults. Private sale must be held in commercially reasonable manner to get the
highest price possible. If commercially reasonablel can get deficiency judgment, but if not,
cant get DJ. Installment K: ß makes down payment, and pays rest of the price in (usually)
monthly installments. ß does not receive deed until after he has paid off all (some cts hold
substantial portion) of the purchase price. Forfeiture in Installment K: If installment ß
defaults, $$ does not need to go through complex foreclosure proceedings—he can just
exercise his K right to declare K forfeited (so $$ can theoretically get whatever has been
aid on account). Most modern cts. hold that if ß has paid substantial portion of purchase
price, and $$ would be unjustly enriched by a complete forfeiture, ordinary foreclosure
proceedings (applicable to mortgages) must be used. DEEDS: Doc. that passes ⊥from GOR
to GEE. Merger: most obligations imposed by the K of sale are discharged unless they are
repeated in deed. (ex. K calls of warranty deed. ß carelessly accepts a quitclaim. ß will not
be able to sue $$ on contractual provision if ⊥turns out to be defective b/c contractual
provisions are extinguished and replaced by whatever provisions are contained in the
deed, under merger). Two types of deeds: 1) QUITCLAIM: GOR makes no covenant that his
⊥is good (he merely passes onto the GEE whatever ⊥he in fact has). 2) WARRANTY: GOR
makes one or more promises about the state of the ⊥. DEED MUST DESCRIBE PROPERTY:
three main ways to describe land in a deed: 1) Metes and Bounds: establishing a starting
point (usually based on a visible landmark) then a series of calls and distances, each
representing a line going in a certain direction for a certain distance; 2) Government
survey: land divided into 6 mi‐townships”36 1‐mi sections” 640 acres, each of which can
be directly referred to; 3) Plat: relies on the recording of a map or “plat” of property by a
developer, in which the plat shows the location of individual lots. Cts tend to interpret the
deed most favorable to GEE (b/c GOR drafted the deed). Deeds must be signed by GOR (&
GEE if ezmnts). Most states required deed to be notarized/witnessed. Must be DELIVERED
(look at intent of GOR to make the deed presently operative to vest ⊥in GEE). Not
revocable: if delivery, ⊥passes immediately to GEE so cant revoke by giving deed back to
GOR (a new conveyence must take place). COVENANTS FOR ⊥IN WARRANTY DEED: GOR
makes various promises about state of his Øship: 1) SEISIN AND CONVEYENCE (present): GOR
has indefesaeble estate in the quality and quantity which he purports to convey (breached
if GOR purports to give FSA but actually only Øed and conveyed FSSCS) 2) AGAINST
ENCUMBRANCES (present): no encumbrances against the prpty (mortgages, leins , ezmnts,
use restrictions). Present covenants are breached, if at all, the moment the conveyence is
made (so breach can occur even if no eviction—just have to show deed was defective on
the date of conveyance). Present covenant does not run with land. 3) QUIET ENJOYMENT &
WARRANTY (future): continuing K by the GOR
that the GEE is entitled to continued possession of land in future. Future covenants runs
with land. Breached only if an actual eviction occurs. SoL: statute runs for present when
covenant is made; for future only when eviction occurs. Measure of Damages: GEE’s
recovery limited to purchase price paid. – Seller Liability for condition of premises:
IWH/quality: rep implicit between $$ & ß, imposes on builder a warranty of quality that
house is built in a good, workman like manner. 1) purchased new house from builder 2)
house contained latent defect 3) defect manifested only after purchase 4)defect caused
by builder’s improper design, material, or workmanship 5) defect created substantial
question of safety or made house unfit for human habitation (No merger, quality not title
related). COOPS AND CONDOS: CO‐OPS: building owned by co‐operative corporation. Ø of
individual apt. is really a shareholder in the corp & can vote accor’d to % of share.
Proprietary lease: in which the corp is lessor and shareholder is lessee. Lessee has to pay
portion of building’s mortgage interest and principal and various carrying charges used
to defray the maintenance and operating costs of building. CONDO: Each individual holds
a FS “within the walls” of parcel, but all residents collectively own certain common areas
as TiC. May own land which house is on, but own portion of surrounding lawns, swimming
pool, etc. These are held by condo ass’n. RECORDING STATUTES: found in every Jx; way to
check whether there has been an earlier Tx in the prpty inconsistent with his own. Even if
there has been an earlier Tx, if not ®, the later ß will generally gain priority, so ® acts
give a ß a way to be sure that he is getting good ⊥. ® acts only givern relations’p btw
GEE and a subsequent ß of the same prpty; not btw the GOR and GEE under particular
conveyence. 3 Different types of acts: 1) PURE RACE STATUTES: race to ®s office.
Subsequent ß must ® before the 1 ß, but is protected regardless of whether he has
st

notice of the 1st conveyance. 2) PURE NOTICE STATUTE: provides that an un® instrument
is invalid against any subsequent ß w/out notice (BFP), regardless whether the 2nd ß ®s
before 1st ß. 3) RACENOTICE STATUTE: protects 2nd ß only if: 1) he ®s b4 the 1st ß; AND 2)
takes w/out notice of the 1st conveyance. Mechanics: Deposit: The GEE brings deed to ®
office. The ®er stamps the date & time of deposit, and places deed in chronological book
containing all ®ed deeds. Indexing: Deeds are then indexed. Both the GOR index (by
particular GOR) and GEE index (to particular GEE). Every interest by
which an interest in land is created or modified must be ® (fee simples, life estates,
mortgages, restrictive covenants, tax leins). Not usually ®: AP, ezmnt by implication or
necessity, short term leases (<1/3 yr), Ks of sale. Protection: 2nd GEE, must either be: 1)
ß for value; or 2) creditor. ß for value: 2ndGEE gets protection of ® act only if he gives
value for his interest. DEE=not protected if 2nd. Value must be >nominal CNS. Creditor:
land Øs creditors receive protection of ® act. Mortgage: if Creditor receives a mortgage
from land Ø, he is treated as a ßer. Creditor judgment attaches debtor’s prpty and gets a
lien (a lien is not a purchase, so a lien may not be protected against the prior un®ed
deed). The deed must be one that is eligible to be ®ed. Must record whole chain. chain
only as good as weakest link. In all Noticebased
Jx, 2nd ß can be on notice in 3 ways: 1) Actual notice: will not be protected. 2) Record
notice: if prior interest was adequately ®. the first doc. must be ®ed in such away that
a reasonable searcher would find it. A doc. that is not entitled to be ®, even if mistaken
accepted and ®ed will not give ® notice. (a mistake may be “cured” if a certain amont
of time passes. Imputed knowledge: if proper ®ing of 1st doc.‐‐> subsequent ß are on ®
notice, even if they never actually see the filed doc (ct. says he k/sk if proprerly ®).
Chain of ⊥: gives notice only if a 2nd ß would have found the doc using generally
accepted means (GEE/GOR index). If ®ed doc would not be found using this, it is outside
the chain of ⊥and prevents ® notice. 3) Inquiry notice: Even if ß has neither ® notice
nor actual notice, he may have inquiry notice: occurs when ß is in P’ssn of facts which
would lead a reasonable person in his position to make an investigation which would
advise him of the existence of the 1st un® right. Still on notice even if doesn’t actually
investigate. P’ssn: if land is Possessed by a person who is not ®Ø, place subsequent ß on
inquiry
notice. The ß must: 1) view prpty (to see if it is in P’ssn of someone else; and 2) if there
is a P, must inquire as to the source of P’s right in the prpty. ß from one w/out notice: If ß
who takes without notice of a prior un® doc resells the prpty, the new ß is treated as one
who may claim the benefit of the ® act, even if he buys with actual notice. (done to
protect the 1st innocent ß’s market of the prpty.C quiets his title) ⊥
Insurance: Covers matters not shown in ⊥search (protects from bad ⊥b/c of forgery in
the ⊥chain, misrep, etc.) Insurance policies may have excep’tns: exclude facts which an
accurate survey of prpty would disclose (ex. encroachments and violations of set‐back
rules are not covered); AP: so buyer must still inspect prpty. RIGHTS INCIDENT TO LAND:
Land Ø may sue another for PRIVATE NUISANCE: interference with land Ø’s use and
enjoyment of his land. Must show: 1) substantial interference: substantial only if a person
of normal sensitivity would be seriously bothered; 2) Δ’s mental state: show Δ’s conduct
was N, intentional (substantial certainty), or abnormally dangerous. 3) Δ’s actions were
unreasonable: (look at the nature of the neighborhood). Remedies: a) compensatory
damages; b) injunction (Π must show harm to him outweighs the social utitlity of Δ’s
conduct). LATERAL AD SUBJACENT SUPPORT: every Land Ø is entitled to necessary physical
support from adjacent (lateral) and underlying (subjacent) soil. Lateral: absolute right;
once withdrawn and injury occurs, responsible person liable even if used utmost care.
Building: lateral support exists only with respect to land in its natural state. If Ø
constructs a building, and soil under building subsides in part due to adjacent Øs acts,
but also weight of bilding, adjacent owner is not liable unless he is N. SUBJACENT
SUPPORT: Arises only where subsurface rights (ex. mineral rights) are severed from
surface rights. When severence, Ø of surface interest has right not to have surface
damaged by carrying out of the mining. Surface owner has absolute right to support to
all land and structures (so buldings existing on date when severence took place are
protected). Right to Sunlight: Ø has no right to sunlight (almost never gets ezmnt of
light & air). but if one Ø uses sunlight for solar energy, he may have claim against tall
building owner (nuisance) for blocking an energy source