1 Property Law Outline I. Real Property a. primarily comes from common law, also treatises and statutes i.

example- adverse possession through statutes but elements from cases b. Rule of Capture i. method of acquiring possession/ownership (Pierson v. Post) 1. manifest unequivocal intention of use 2. deprived of natural lib erty 3. brought into control whoever first captures otherwise unowned resources is entitled to resources ii. actual seizure not always needed, but mere chase is not enough 1. understand that hunter suffered a harm, but no legal remedy for that damage (damnum) 2. Ratione soli- owner of land has constructive possession of wild animals on it until wild animals take off 3. encourage competition by rewarding captor of ferae naturae) iii. other methods of acquiring title include: 1. purchase 2. inherit (intestate, no will) 3. testate (there is a will) 4. discovery 5. conquest 6. squatters rights (through adverse possession) 7. adverse possession a. plaintiff has burden of proving b. after statute runs out and elements met; acquire title 8. gifted 9. foreclosure 10. court awards (i.e. through divorce) iv. A man can compete with another (i.e. making another decoy) but can not maliciously prevent one from working and interfering with trade (Keeble) 1. society wants animal captured so preventing capture is not legal 2. if wild animal on land, then has possession- rationale soli- Keeble v. When both sides can make argument from Pierson: 1. whaler- captured whale by killing it, could show test from Pierson 2. finder- had corporal possession 3. court ruled according to custom that finder is supposed to notify whaler when whale washes up for finders fee, whaler never abandoned pursuit, rather captured whale and custom allows for whale to get to his possession (Ghen) 4. Relationship b/w Custom and Formal Law i. claimaint owned whether dead or alive as long as line fastened ii. exclusive right to capturer who had attached harpoon iii. value of carcass split b/w ultimate seizer and harpooner 5. Tragedy of the Commons i. if no regulations on whale population, everyone would take until

2 the population extinguished ii. need formal law to regulate possession/ prevent overconsumption iii. rule of capture used here along with custom to regulate c. Reason by Analogy using the Rule of Capture i. rule of capture extended to oil and gas resources 1. power and tendency to escape without volition of owner so when came under control of new owner, title goes to new owner 2. dont own a molecule until take it from under the land (like animals) ii. water 1. English rule- land owner owned to heavens above and hell below a. Rule of absolute ownership b. You capture it, its yours 2. American rule- surface water use okay if reasonable a. If unreasonable and harmed others than not okay b. Prior appropriation; whoever gets first and puts to appropriate and reasonable use gets to keep it c. Harder for west than east iii. property on one persons last, rule of capture doesnt apply, rationale soli does iv. can take analogy too far into metaphor- i.e. cyber-trespass d. Body Parts not Property i. do not recognize body parts as personal property (Moore) 1. have right to informed consent and fiduciary duty 2. no right to conversion ii. when take cells/blood need to get consent for its purpose and value 1. used it for inventive purpose to patent cell line; science favored here 2. chooses not to extend rule of conversion to this case b/c: a. abandoned property without intent of reclaiming it b. confusion as mixture of things, not sure what belongs to original owner when used cells for product line c. accretion interest by doctors that made it valuable d. could argue that not a conversion, just fast cell production iii. court rejected extension based on public policy implications of making body parts public policy; suggest that legislature address the relevant issues iv. Rule of capture? 1. regents could argue that met 3 element test of capture 2. moore could claim trespass when had corporal possession 3. also use Ghen by arguing for custom e. real property as a bundle of sticks i. property rights are relationships to others with respect to things 1. theoretical 2. right to purchase, destroy, exclude, leave to heirs 3. owners use in court- i.e. regulatory takings to assert ownership right as a stick such that others infringed on rights like govt with eminent domain ii. close relationship b/w rights and externalities 1. created when making decision without taking into account all costs 2. once take them into account and do anyway, not an externality

3 3. II. Adverse Possession -serves social policy of maintaining status quo a. method of acquiring title to property, i.e. rights to land i. elements come from case law so differ b/w jurisdictions 1. COHENS/ACORNES
a. continuous, open, hostile, exclusive, notorious, statutory time b. actual, continuous, open, claim or right, notorious, exclusive, statutory time

2. differences b/w jurisdictions : a. statutory time limits b. how the jurisdiction treats color of title c. color of title- adverse possessor given defective instrument i. advantages: 1. can get whole when title is for part b. statutory period shorter 3. record owner must have notice of adverse possessor a. one check on land during time period could dispossess ii. when statutory time runs out, adverse possessor gets title 1. does not need to do anything, magically gets title 2. today, about 15 years, ways to shorten (i.e. pay taxes on land) 3. England purpose to punish real owner so statute starts running once first adverse possessor meets all other elements for time period 4. U.S. purpose to reward adverse possessor so statute runs once adverse possessor completes total statutory time iii. need to meet ALL elements of adverse possession or else negates others met 1. Van Valkenberg determined that Lutz did not meet elements b/c need: a. substantial enclosure (i.e. fences usually adverse possession) b. to cultivate and improve the land 2. case wrongly decided b/c automatically gets possession after time period a. court claimed missing hostility (not enough cultivation, etc.) b. conceding that other party owned land did not give up his title 3. **land used in a reasonable way given the nature of the land in the manner that a true owner would use the land under the circumstances and that neighbors and others would recognize use as exclusive dominion a. use the land as a true owner would use it iv. state of mind of adverse possessor 1. majority rule- irrelevant- can gain title whether innocent or not a. some case law does not reward those trying to steal land b. betterment statutes- innocent adverse possessor to recover costs or land through fair market value from the owner 2. minority rule- Maine- need to know trying to establish claim of title a. infer hostile possession along with good faith claim of right v. hostility- objective standard asking if making productive use of land 1. use land as meant to be used 2. even if not always used, could meet continuous requirement (Ewing) vi. owner needs to have actual or imputed notice 1. when a responsible owner would know about land

4 2. mistaken boundary/encroachment (Mannilo) a. rejects Maine doctrine that must known and have claim of right b. defendants should have known that plaintiff AP c. encroachment itself usually meets open and notorious d. whether or not the entry is caused by mistake or intent, the same result comes out in the end and the true owner is ousted from possession b. prescription provides rights to use land but no title i. does not need to be exclusive, interested in rights not title (like an easement) c. rule of thumbi. adverse possessor acquires what owner had at the time cause of action accrues 1. severance i. whoever owns surface owns below and above ii. if severed before AP then only get the land owner owns at time of action, if not severed, get all property iii. if someone else had right to subsurface if surface owner allowed to check subsurface then you are allowed to do it iv. possible to encroach on air rights, often handled prescriptively v. depends on nature and quality of land to determine what is enough to adversely acquire surface vi. statute could run separately on subsurface and surface 2. if owner only has life estate, and someone else has remainder, adverse possessor gets title to owners life estate interest and remainder still has interest (Wengel) i. unless statute says otherwise, person with remainder interest can not bring action against an adverse possessor ii. buyers not protected in the same way heirs might be a. buyers should look into property before buying b. heirs might have an extra year or two within statute or bring an action against an adverse possessor d. Color of Title i. invalid instrument, usually a deed that describes land owned by record owner ii. color of title possession has benefits for adverse possessor 1. shortened statute of limitations 2. constructive possession a. can gain more than land actually lived on b. needs to be reasonable in proportion to entire land 3. owner must not be vigilant with regards to land iii. color of title usually gives adverse possessor benefits compared to no title e. AP against the government i. generally, AP does not run against local, federal, or state governments ii. English principle of nullum tempsis iii. against PP to take away public land b/c anomaly to take away community resource, shows government negligence, and citizens should protect; not make claims against the state iv. some change on local level; either ignoring case or new statutes

5 v. NO SYMMETRY b/c government can acquire land by AP 1. distinction b/w property in public use and private 2. can acquire property via foreclosure a. private property usually type subject to AP not public b. contrary to general rule of AP b/c usually need to do something special (i.e. oust true owner) but here government does not need to f. How to determine if statute of limitations passed and title passed to AP: i. Wolfs Anal Retentive Method 1 1. Take year ownership sought 2. Subject year cause of action accrued 3. Compare answer to statutory period 4. If answer greater than statutory period, AP has title -if equal, check months to make sure statutory period met 5. BUT, need to check for disability g. tolling and tacking i. tolling for benefit of owner 1. Disabilities a. 19th Century i. soldiers and sailors ii. legal infancy iii. insanity iv. married woman v. imprisonment st b. 21 century left with: i. infancy ii. insanity iii. imprisonment (not everywhere, like Ohio, check statute) 2. disabilities removed: a. infancy removed by reaching majority or death b. insanity removed by cure/better/death c. imprisonment removed by release or death statute starts running when disability removed 3. disability needs to exist at time cause of actions accrues to help owner a. protects record owner b. only do disability analysis if statute has passed c. dont care about subsequent disability whether true owner or heir has one even if ONE minute after action accrued then considered subsequent ii. tacking for benefit of adverse possessor 1. tacking must be in privity a. contractual or blood relationship from A to B- contract, blood, etc. i. death, ancestor to heir, spouse to succeeded spouse, etc. b. second possessor must meet all elements of AP c. permitted with respect to conveyance and adjacent lands h. AP in Florida i. Fla. Stat. 95.16

6 1. color of title 2. continued possession for 7 years 3. use land in usual way 4. substantial enclosure ii. Fla. Stat. 95.18 1. without color of title 2. open, continuous, actual, hostile possession 3. for 7 years with enclosure or cultivation 4. payment of taxes for first year of occupation i. Adverse Possession and Personal Property i. can not apply principles from real property to personal property against owner 1. not making productive use (besides selling really and then not owner) 2. open and notorious harder 3. exclusive- this one is easier than real property 4. hostile- not using in a way adverse to real owner 5. using property according to nature and quality of property? 6. continuous- what constitutes continuous? 7. though many elements hard to apply, still use notions of AP in personal ii. Actions under personal property recovery: 1. replevin- recover personal property unlawfully taken 2. detenue- wrongful detention of goods, borrow & dont give back 3. trover- action to recover damages from something unlawfully taken a. borrowers who dont have higher obligation than those who pay 4. mutual bailment- pay to borrow, give back after certain time, like rent iii. OKeefe v. Snyder: 1. majority approach uses adverse possession with personal property a. easy to see leap from real - personal when dealing w/slaves/chattel b. rules do not make sense when property not tied to land (OKeefe) c. NY rule encourages buyers to look into title before buying 2. NJ court uses discovery rule: so long as owner duly diligent in looking for lost property, statute of limitations doe not begin to run until owner knows or should know of location of property a. Looks to conduct of owner b. Objective and subjective test c. Definition of due diligence depends on nature & quality of property d. If find due diligence, statute of limitations does not start to run until owner knew or should have known of location e. If owner not due diligent, statute runs and loses property in AP 3. fraudulent concealment- defendant conceals property a. not meeting elements of AP where AP applies b. if P not due diligent and D fraudulently conceals then statute of limitations starts running as soon as property missing so D wins j. Coase Theorum i. assignment of legal right irrelevant if transaction costs are zero b/c productive user of property will use it & make efficient agreement leading to same outcome

7 ii. Railroad and farmer example: RR benefits $100 from use, farmer loses $50 from railroads use. If court assigns right to RR then RR uses and farmer moves, if court assigns right to RR then RR pays farmer to move. Either way RR uses and farmer moves. iii. if values reversed, principle same but outcome reversed iv. If court rules that sparks are a nuisance, then farmer gets injunction and RR has to stop sparks, farmer uses land. If court says not an injunction, farmer pays RR b/w $50-100 to prevent sparks and still makes profit in difference than if nuisance still there. v. Marengo cave- A uses Bs cave for tours. B knows A using land. If court assigns A the right, A keeps using cave. If court assigns B the right, A will pay B to use cave. vi. OKeefe case: If Court finds due diligence than OKeefe keeps. If court finds AP and not due diligence, then right goes to Snyder but OKeefe will buy back. Posner adds idea that efficiency promoted by giving right to optimal user 1. efficiency is not justice or fairness a. Pareto optimal/improvement- make self better off but not make anyone else worse off in the process = perfect world b. Coase theorem works in perfect world i. Real world flawed and has transaction costs, so settlement may not be worth it or may not be most efficient if assign rights to most productive user or may be relevant who you assign the rights to in the first place ii. Just like with torts, contracts and criminal- no such real thing as reasonably prudent person, a totally honest person entering a contract or a criminal who weighs cost of punishment against committing a crime III. Estates 1. Where do property rights come from? a. Feudal times b. Trying to create social equilbrium c. Modern critics who want to leave feudal past come back to same notions 2. Norman Conquest a. Some political connections but mostly a conquest b. Needs i. Military 1. most important 2. provide knight service, later king took money ii. Economic- Subsistence- Socage iii. Religious- Frankelmoign iv. Unfree tenures- Serveantry c. hierarchy developed: king-tenant in chief- mesne lords- demesnes i. owed services to above in hierarchy 1. land tenure based on relationship to land 2. chief held land in agreement to provide services ii. this way had military service and other needs met iii. first set of tenant-in-chief did not get life estate in exchange for services iv. negotiate with lord and servants to get what they both needed

8 v. feudal incidents (think of as taxes) 1. homage and fieldy a. ceremony where servant would vow loyalty to lord above 2. aids a. pay king when needed, later down to 3 instances: i. first daughter marries, first son knighted, ransom from captors 3. forfeiture a. do not provide services, lord gets land back b. can negotiate better deal with new servant 4. wardship and marriage a. wardship- benefits of land until kid reaches majority b. marriage- lord can marry heir to his choice husband 5. escheat a. tenant died without heirs, land returned to lord b. today land returns to state 6. relief- tenant died- heir has to pay tax to keep land a. primogeniture system- male and single owner i. even if someone closer in kinship to deceased, primogeniture system governed inheritance ii. originally did not include collateral/ancestors b. today- heirs include lineal, issue, collaterals, ancestors, spouses; goes every direction that unusual for person to die without heirs i. limited definition of heirs leads to greater possibility of escheat --incidents become more important than feudal services vi. avoided feudal incidents: 1. substitution a. with permission, change property to someone else b. less rungs so if incident property to tenant in chief c. favored method by i. upper lords b/c could get land back ii. lower lords b/c could alienate w/out permission d. formed by Quia Emptores 2. subinfeudation a. later illegal b. adding new tenant to bottom of ladder c. less wealth for baron b/c rung in between so may not get full value of land or incidents b/c went to mesne d. incidents went to rung directly above so if land forfeited or escheat went to mesne and not tenant-in-chief vii. feudalism declined 1. escheat and forfeiture eliminate needed for mesne lords 2. statute quia emptores prohibited subinfeudation 3. allowed alienability to transfer

9 a. substitution more economic than feudal 3. Types of Estates in Land 1700 cut off point for our class: Post De-Donis, Emptores, Statute of Wills a. Johnson v. Whiton- no new estates, conveyance has to fit in with language i. Fee simple 1. to A and his heirs a. at common law, if did not use this language, A got a life estate (think lord giving to tenant for life only) b. Words of Purchase and Words of Limitation i. Purchase: WHO gets land, identify person who estate is created ii. Limitation: duration/type of estate 2. modern approach is to give what you had 3. alienable, descendable and devisable 4. possibility that fee simple is infinite, could endure forever a. if owner conveys something less than a fee simple absolute, then has reversion interest (i.e. O to A for life, then O has reversion interest in fee simple) i. no future interest after fee simple absolute b. when make a grant in fee simple, dont need to say and his heirs, assume that unless says otherwise 5. only refer to fee simple absolute when present and future interests are in the same person at the same time 6. defeasible a. fee simple determinate b. fee simple conditional c. fee simple executive interest ii. Fee tail 1. created by De Donis a. keep land in family i. issue did not include 1. stillborns a. cries to 4 walls then alive 2. adopted 3. illegitimates b. land passes to heirs of first taker i. first taker gets life estate, heirs get fee simple c. land could not be alienated 2. to A and the heirs of her body a. Language indicates entailment in: i. General ii. Male iii. Special (heirs of Marys body) 3. grantor has reversion on expiration of fee tail a. if conveyance creates future interest in a grantee following a fee tail, future interest is a remainder

10 b. at common law, fee has to go somewhere; goes from owner to original conveyor (if even for a second) to heir c. reversion only in grantor him or herself -At common law fee tail conveyed to someone else during life gets a life estate measured by conveyors life estate then reverts back to conveyor i. Three rules for future interests (fee tail and life estates) 1. only expirable estates could be followed by a future interest in a grantee 2. future interest created must be capable of taking effect immediately upon expiration of the preceding estate 3. future interest must not take effect before expiration of preceding estate -can not cut short life estate 4. Delaware, Massachusetts, Maine & Rhode Island have fee tail a. can not alienate fee tail through will b. easy practice to do through recovery/deed during life c. creates fee simple and cuts off any reversion interests 5. Most jurisdictions today have abolished fee tail- creates fee simple 1. Category (1)- fee simple absolute, doesnt matter what follows 2. Category (2)- fee simple absolute but something followscondition that A has surviving issue, then B loses rights; If A does not have surviving issue then B has rights 6. Florida- has its own rules: Fla. Stat. Ann. 689.14
No property, real or personal, shall be entailed in this state. Any instrument purporting to create an estate tail, express or implied, shall be deemed to create an estate for life in the first taker with remainder per stirpes to the lineal descendants of the first taker in being at the time of her or his death. If the remainder fails for want of such remainderman, then it shall vest in any other remaindermen designated in such instrument, or, if there is no such designation, then it shall revert to the original donor or to her or his heirs.

a. first taker gets life estate, grantor has reversion, issue get remainder in fee simple per stirpes b. issues must survive first taker i. if no issue at time of first takers death, grantor gets reversion interest 7. Fee Tail in Ohio a. first life is a fee tail and issue that survive get FSA i. whatever surviving issue share FSA ii. if first taker tries to alienate fee tail, grantee gets Ohio fee tail per autra vie iii. grantors reversion interests can be split among issue, as well as fee simple can be split among issue if more than one surviving at time of death

11 b. In Ohio and Florida- issue MUST survive owner, so needs to be alive at time of death in order to gain interest, child alive at time of grant not enough c. If no condition of survivorship: i. Fee Tail in Illinois a. once child born, grantor loses reversion interest to issue b. issue has vested remainder in fee simple c. reversion interest subject to defeasance d. person who grants to child once born has a life estate e. issue of child gets fee simple absolute whether or not child survives ancestor f. grantor lost interest and childs issue inherits g. Illinois calls first taker life estate like Florida 8. Fee Simple Conditional a. does not exist anymore b/c of De Donis that formed fee tail b. exists in modified form in Iowa and South Carolina- look to statutes to know how it works c. gives right to create fee simple for someone else, not grantor d. O to A and heirs of his body meant that so long as A had heirs, lets say B, O has reversion interest and B gets fee simple. If A does not have issue, back to state? iii. Life estate 1. to A for life a. Per autravie i. Life estate for the life of another ii. Can get one without it being granted as one 1. A to B, B to C for Bs life b. Determinable i. Life estate so long as ii. Grantor retains reversion that comes into play when life estate expires or condition broken c. life estates are always followed by future interest d. not an estate of inheritance- ends at end of measuring life i. usually measured by life of conveyee e. life estate + reversion interest = FSA to grantor (merger) 2. At common law a. life estate presumed unless said otherwise i. comes from feudal period b. if life estate holder dies; whoever claims land is called general occupant for life of conveyee i. can not take title by adverse possession even if statute of limitations shorter than As life because can not adversely possess future interests (Wengel))

12 ii. modern law- conveyor gives whatever has during life to conveyee, and then reverts back to conveyor 3. modern law a. fee simple absolute presumed unless said otherwise i. White v. Brown 1. follow modern rule 2. courts wrestle with life estate with remainder to future interests or fee simple absolute 3. Decision- looked at context in whole and absolute interest favored -intent seemed to be more than life estate -attempt to restrain alienation disfavored i. disabling- withholds grantees power to transfer interests ii. forfeiture- grantee attempt to transfer forfeits rights in land iii. promissory- grantee promises not to transfer interests, enforceable by contract 4. Dissent- she knew how to grant in FSA b/c did FSA with property so she intended a life estate here 4. Valuation of Life Estate a. need to figure out present value and future interests b. use life expectancy and annuity tables, 5. Law of Waste a. equity courts have jurisdiction to order sale of land to prevent future interests and waste (Baker v. Wheedon) i. has to be necessary ii. consider interests of all the parties iii. if seriously impinge on financial rights of future interests then look for alternative to benefit all b. Types of Waste i. affirmative- voluntary acts that injure property value 1. injury by present interest / physical presence ii. permissive-negligence, failure to take reasonable care of the property iii. if AP possessor injures property, future interest holder can sue present owner for damages, not AP c. perspectives in England v. America i. England- land itself viewed as a commodity, dont want to change land character b/w generations ii. Americans- care about the bottom line 1. emblements a. if plant crops, can take them off land b. more so with wheat than apples

13 c. if you work land, can keep growth d. similar exception in open mines; if mine open when come onto property can extract minerals, etc. If not open at time of entrance than can not extract. 2. estover a. take wood off property for essential needs b. shows exception for waste b/c not penalized for changing character of the property 3. amerliorative waste a. changing character of the land b. actually enhances value c. not allowed in England d. Problems -takes temporary view of property -could be premature conversion -environmentalists dont like b/c ruin land, etc. for profit d. eminent domain changes character of property but just b/c get compensation of valued land in monetary value 4. Pabst case a. sold dower to brewery company that demolished home & land for brewery b. Court sympathetic to brewery who thought they were getting FSA but really got life estate measured by wifes life b/c only had dower that was measured as a life estate c. Other Settings for Waste: i. Life estate ii. Landlord tenant 1. tenant responsible to owner for waste iii. Co-owners 1. co-owner in possession damages then other co-owner can bring a suit in waste iv. Leaseholds 1. Freehold estates all had seisin a. In feudal times, all estates had seisin b. Responsible for feudal services i. In feudal times, all land had to be seised ii. Seisin created or transferred in livery of seisin ceremony 2. Common Law

14 a. Nonfreehold estates b. Did not use livery of seisin ceremony i. Estate for years 1. Grant from O to A for x # years 2. personal property, chattel real a. not real property b. separate from real property c. grantor retained FSA b/c granting of real property separate d. grantee has personal property not any freehold estate 3. At 1700 a. Still nonfreehold estate b. Estate in years grant creates i. Present possessory life estate in grantee ii. Grantor retains fee simple absolute iv. Defeasible Estates -need fee simple language, to A and his heirs + qualifying language -make sure to go in order i.e. make sure its a fee simple first, then move on 1. Fee simple determinable a. ownership limited i. to A and his heirs + so long as ii. also known as upon a special limitation b. grantor retains possibility of reverter i. automatic expiration of estate based on a stated occurrence/nonoccurrence 1. if stays on land after considered trespass 2. Fee simple subject to condition subsequent a. give land to someone who may or will lose it based on condition b. grantor retains power to terminate/right of entry i. needs to take affirmative action ii. statute of limitations begins to run once O comes back 1. grantee retains FS subject to condition subsequent c. law abhors forfeiture i. prefers condition subsequent if ambiguous ii. law prefers covenant, then condition, then limitation 1. covenant- broken promise, damages in contracts iii. Mahrenholz case- language intended to create mandatory rather than permissive return, though court has preference for condition subsequent, looked at intent of grantors who intended property used by school (definition of school use not resolved)- son with possibility of reverter can inherit reversion if property not used for school then do with it what he wants iv. absolute constraints on alienability abhorrent 1. Toscano case- habendum clause to define the extent

15 of the issues granted 2. construe land use restraints acceptable but not land Alienation i. courts do consider context so if may hamper alienation, thats okay but not a total limit 3. Fee simple with executory interest a. looks like fee simple determinable but instead of future interest in the grantor, its in someone else 4. Fee simple subject to executory interest a. language similar to condition subsequent, but future interest to 3rd party, subtle distinction but meaningful, not power of entry b. grantor retains nothing because interest in third party most executory interests violate Rule of Perpetuities 5. Other information on defeasible fees: a. c/l favors marriage- will enforce clauses that provide support until marriage but not those that penalize remarriage b. if defeasible fee condemned, present owner takes damages v. Future Interests in Grantor (reversionary interests) 1. reversion (everything else) a. alienable, descendable and devisable b. all reversions are vested i. can be subject to complete defeasance ii. indefeasible a. when grantor gets interest back for sure c. estate automatically returns to the grantor 2. possibility of reverter a. fee simple subject determinable b. common law i. can not alienate or devise possibility of reverter ii. can inherit c. estate automatically reverts to grantor upon the occurrence of the state event 3. power to terminate/right of entry a. fee simple subject to condition subsequent b. common law i. can not alienate or devise possibility of reverter ii. can inherit c. estate not does revert automatically; grantor must exercise his right of entry vi. Future Interests in Grantee 1. remainders a. vested i. alienable, descendable and devisable 1. creditors can reach any alienable interest debtor has 2. if debtor can voluntarily transfer it, then the creditor can reach it

16 ii. how do you know you have a vested remainder? 1. follow a valid particular estate a. life estate b. fee tail c. estate for years 2. interest waits patiently, does not cut off other interest 3. no mandatory gap in grant a. possible for interest to take effect right away b. if mandatory gap in seisin not a remainder iii. ascertainable person and no condition precedent besides the natural ending of the preceding estate iv. types of vested remainders: 1. indefeasibly vested a. certain to acquire the interest and will be entitled to the interest permanently 2. vested subject to open/subject to partial divestment a. grantee are members of a class b. class closes at end of measuring life (or parent of issue) i. rule of convenience ii. window open for possible current pregnancies (9 month until closes) iii. closed when not possible for others to enter the class iv. as each issue is born, the grantees interest adjusts 1. starts at 100% vested remainder subject to partial divestment 2. reduced in equal shares to new addition a. A and B each have a 50% vested remainder subject to open 3. if issue born after class closed, new issue does not have an interest 3. vested subject to complete divestment a. if have remainder and could lose it v. preference for vested remainders 1. if ambiguous, law favors vested over contingent b. contingent i. unascertainable person to subject to condition precedent ii. examples include unborn children and heirs

17 iii. at common law, subject to destructibility doctrine 1. if interest does not vest at or before the termination of the preceding estate freehold, then destroyed 2. does not exist in modern law except in Florida a. doctrine good b/c makes land alienable b. know whats interests are right away c. NO future interests in fee simple determinable, fee simple subject to condition subsequent, fee simple with an executory limitation, fee simple subject to executory limitation d. REMAINDER TRICKS i. Rule of Shelleys Case 1. one grant purports life estate or fee tail in one grantee and then fee simple or fee tail to heirs of first grantee a. life estate or remainder both equitable then becomes fee simple or fee tail b. doctrine of merger can apply c. Rewrite a grant that says: O to A for life, then to B for life, then to As heirs as O to A for life, then to B for life, then to A and As heirs. i. Becomes indefeasibly vested remainder in fee simple in A ii. If contingent remainder in between 2 interests then remainder not destroyed iii. If interest owner sells the interests to someone else, contingent remainder destroyed and merger applies 1. so does not have power to have one but has power to grant this estate iv. if life estate and next vested estate are simultaneously created, then they do not merge at that time to destroy remainders (says same thing as iii. above but easier to understand) v. rule of law that applies regardless of grantors intent d. purposes for rule i. feudal tax evasion ii. alienability iii. not for personal property e. abolished in great majority of jurisdictions

18 ii. Doctrine of Worthier Title 1. inter vivos conveyance that purports to create a future interest in the heirs of the grantor a. future interest is void b. grantor has a reversion 2. purpose of rule a. avoid feudal incidents b. property passed down as a reversion instead of a remainder 3. common law a. real property only b. rule of law 3. modern rule a. personal as well as real b. rule of constructions i. raises presumption that no remainder created ii. rebuttable presumption by grantor iii. Rule in Wilds Case 1. look for grant to someones children a. common law i. no children at time of devise 1. fee tail ii. children at time of devise 1. joint tenancy in life estate iii. both cases testator left with indefeasibly vested remainder in fee simple 1. goes to legatees, but not through this grant b. modern law i. no children at time of devise 1. fee simple absolute ii. children at time of devise 1. tenants in common in fee simple absolute iii. both cases testator left with nothing 2. executory interests a. indestructible i. Purefoy 1. when ambiguous grant and possible to interpret as a contingent remainder or executory interest, Court prefers contingent remainder since destructible while executory interests are indestructible b. springing- follows the necessary/mandatory gap and comes from the grantor

19 c. shifting- if does not fit description of springing then its shifting; comes from grantee, usually but does not always cut off preceding interest d. when analyzing a question, ask first if it springs? vii. Ways to lose interests in land: 1. mergers a. smaller estate merges into larger interest and smaller ceases to exist as separate estate b. if life estate and next vested estate are simultaneously created, then they do not merge at that time to destroy remainders c. present life estate and indefeasibly vested remainder in fee simple merge into FSA d. life estate and contingent remainder not enough to merge into a FSA e. when life estate and vested remainder or reversion in fee come into the hands of the same person, any intermediate contingent remainders are destroyed 2. forfeitures a. repudiates and destroys estate and claims a new fee simple by disseisin that is transferred i. any contingent remainders depending on grantors old estate failed b. at common law, a person forfeited his property by i. tortuous conveyance 1. trying to create more than had 2. this method obsolete today ii. felony iii. first taker refuses to take estate iv. condition in grant not fulfilled iv. Rule Against Perpetuities 1. rose from tension b/w deadhand control and alienability 2. interest must vest or fail to vest within 21 years (+ gestation period) at time of grant a. MUST vest or fail to vest b. If any possibility that will remotely vest than the interest is VOID i. In grant, if want to extend the measuring lives as long as possible, then grant to

20 babies such that the interest must vest or fail within 21 years of babys life c. At common law, tell the story from the beginning and if possible that the interest will not vest then it is void d. If void, cross out the interest i. Look at punctuation as to what to cross out ii. cross out everything after the comma 3. common devises a. testator: to my grandchildren than reach 21 i. does not violate rule b/c will be within measuring lives of testators children 4. Measuring lives a. Start with names in grant b. Some lives in being not mentioned directly by the grantor but implied as lives in being i. Baby in gestation is a life in being c. assume that people can have children at any age i. female octogenarian ii. precocious toddler iii. not yet born widow 5. RAP does not apply to a. Present possessory estates b. Future interests in grantor i. Reversion, possibility of reverter and power of termination c. charity to charity exception i. does not violate RAP if granted from charity to charity ii. if end of grant goes to someone other than charity, then RAP voids iii. usually will void only the last interest if the rest of grant is good 1. as opposed to infectious invalidity 2. courts invalidate grant though looks like grantor did not intend it a. if can stick with grantors intent and only strike out invalid part then will iv. if want to convey the interest to another party after the charity, use 2 conveyances 1. O to A in fee simple absolute 2. A to charity in fee simple determinable, A has possibility of reverter 3. does not violate rule

21 6. RAP applies to a. Executory interests b. Contingent remainders i. Generally destroy a lot of RAP problems b/c generally follow life estate and a contingent remainder must become vested before the time it becomes possessory or the interest is destroyed at CL ii. If interest destroyed at CL, then must vest or fail within 21 years and destroys problem, interest valid and reverts back iii. If contingent remainder indestructible (like in majority of modern jurisdictions), then treated like an executory interest c. Vested remainders subject to open 7. Modern RAP a. Many states have laws that got rid of this b. But unless retroactive, need to do RAP analysis on wills made before RAP done viii. Modern rules for present and future interests 1. only one jurisdiction recognizes contingent remainder destructibility a. creates RAP problems since CR indestructible 2. Rule in Shelleys Case and Doctrine of Worthier Title = abolished 3. RAP mess- look to information on test to see what applies 4. ALL future interests are alienable, descendable and can be devised a. this includes possibility of reverter & power of termination b. except interests limited to life b/c interest ends at death 5. responsible for other jurisdictions as fair game 6. fee tail is a FSA a. jurisdictions split on what happens if something follows interest so look at information on exam IV. Landlord-Tenant Law 1. numerous clausis a. fit the kind of estate into one of the types i. principle bolsters notion of free alienability 1. if dont do it right it becomes a FSA and can alienate b. at common law, leases were chattel-real as personal property i. now leaseholds are the fourth type of freehold estate 2. Types of Estates a. estate for years i. Any fixed or computable time 1. can be as short as one day, as long as 99 years 2. think of as term for years ii. needs to list beginning and more importantly end date iii. lease automatically ends and LL not entitled to notice

22 1. could need notice for extension, not for expiration b. Periodic tenancy i. Lease for a period to period ii. Fixed duration until LL or T gives notice of termination 1. automatically extended for another period unless notice given 2. main difference b/w estate for years iii. Notice 1. required for the length of the tenancy 2. if month to month, one months notice required a. if year to year, need six months notice b. any period of year to year is six months notice 3. for 7 12 months, disagreement for amount of notice a. if there is a statute, follow the state b. if no statute then say either; i. notice = to length of period; or ii. 6 months notice b/c longer than 6 month periods 4. notice is sufficient upon receipt, not at time of sending iv. at common law, need sufficient notice otherwise treated as none 1. notice must include a. full periods notice b. end date of termination 2. at common law, insufficient notice waived the notice 3. modern law says to pretend notice sufficient for end date of the next full period a. example: give notice on May 17th for a month to month i. at common law, insufficient ii. in modern law, treat as notice for June 30th v. notice rule discourages period to period tenancy vi. if language says: to T at an annual rental of $24,000 payable $2,000 per month on the first of each month 1. establishes periodic tenancy 2. either viewed as month to month or year to year with rent at installments of $2,000 c. Tenancy at will i. Need both parties to have power to terminate 1. if only one party then not a tenancy at will and something like a tenancy; or 2. imply reciprocal power in other party and call it a tenancy at will ii. if one party dies than tenancy at will over iii. Garner v. Gerrish 1. court found that a tenancy at will is not created when one party, here the LLs executor had power to terminate and the tenant did not a. read the agreement to be a lease i. as an life tenancy determinable on tenants behalf treated as an estate for years determinable

23 1. not life estate b/c could not alienate ii. determinable b/c he could decide not to rent it iii. sole right to tenant to end when he chooses b. not a tenancy at will, so has to be something else d. Tenancy at sufferance i. Tenant had the right to be there in the first place from estate for years, periodic tenancy or tenancy at will 1. now tenant is holding over after the lease ends a. at common law, no excuses for holding over b. Restatement takes view that if tenant can not move because of near impossibility and is beyond tenants control then relieves tenant of holdover i. Some cases draw de minimis line if does not affect LL; leads to line drawing problem ii. benefit to LL is do not treat holdover tenant as trespasser for AP purposes 1. if LL does not treat as holdover then LL does run risk that could turn into AP iii. when tenant holds over, LL can: 1. evict with damages 2. start express or implied new lease -same terms as original lease a. majority rule usually creates a periodic tenancy i. period determined by rent payment ii. usually month to month for up to a year b. other view is that holdover creates new lease to same period of time as original lease c. last approach is sue for double rent i. if accept regular rent then create month to month d. Crechale case i. LL that accepts rent after refusing to accept rent as periodic tenancy for month to month can not then hold tenants to new lease for new period as original lease after trying to evict ii. AP possibility b/c treating as a trespasser 1. once LL treats as trespasser and refuses to extent month to month but fails to pursue remedy of ejecting, accepts month to month 3. Assignments and Sub-leases a. Leases are property contracts i. Contract creates leasehold estate ii. Tenant in privity of contract and estate with the landlord 1. common breach is when sub-leasor or assignee does not pay rent 2. privity gives the LL the right to sue the assignee of the tenant on the covenants in the lease and to give the assignee the right to sue the LL on her covenants b. Assignment

24 i. Transfers the entirety/remainder of lease agreement ii. LL and T have a contractual relationship 1. LL can sue T if T1 does not pay a. T still liable to LL for rent though assigned i. K relationship is still there ii. Secondary liability 1. can sue T2 for the rent b. Exception is if there was novation i. New contract b/w T and LL that releases T from rental payments upon novation ii. Forms privity of K & estate with T1 iii. LL and T1 have property interests 1. LL and T1 are in privity of estate a. T1 is personally liable to LL/has duty to pay rent 2. LL has indefeasibly vested reversion in fee simple 3. T1 has PP estate for years 4. T has nothing b/c assigned rights to T1 5. B/C LL and T1 have privity property relationship, LL can sue T1 a. T1 has notice of original rental agreement b. State of mind of original parties i. LL and T expect T to collect rent for entire period ii. T knows that if assign then T1 has to pay c. assignee had the right to occupy i. real property relationships b/w LL and T1 ii. though not directly promised by T1 to LL, any other promise that T made to LL were personal in nature and only require rental payments iv. LL can go after T and T1, but only get one recovery 1. T1 only responsible for rent when he had possession a. Not before and not if he reassigns i. Reassignment terminates privity with LL c. Sub-lease i. Transfer all but even one day ii. Right to enter alone (at least in Florida) is still a sub-lease 1. right to enter alone was an assignment under common law 2. under modern law, the right of re-entry makes it a sub-lease iii. LL and T have K relationship 1. T and T1 have K relationship also 2. LL can sue T for rent the same as with assignees iv. LL, T and T1 have property interests 1. LL has indefeasibly vested reversion in fee simple 2. T has vested reversion in estate for years 3. T1 has PP estate for years a. But no privity b/w LL and T1 here i. Sublessee not personally liable to LL b. LL can not sue T1 b/c of privity

25 i. Unless 1. there is a new K b/w LL and T1 a. this does not release T 2. statute provides LL can go after sub-leasor 3. or change in common law based on third party beneficiary theory a. some lower courts found in favor of LL based on this theory b. transferee remains liable to the LL as LL is beneficiary to the K c. assumes the covenants of the master lease so liability continues even though there is a further assignment of the leasehold d. distinguishing b/w sub-lease and assignment i. using language is not conclusive, but persuasive ii. Ernst v. Conditt 1. tenant transferred to another party a. signed new lease with LL b. signed lease with new party, called it a sub-lease c. general rule that assignment transferred the entire interest and left no reversionary interest i. tenant did not retain any interest after transfer 2. using words sublet were not conclusive of type of transfer e. LL must have reasonable reasons for denying transfer to assignee or sub-let i. Kendall v. Pastana 1. commercial settings only, different rules apply to residential a. Wolf- seems less logical to protect commercial tenants who have more negotiating power than residential i. Idea is that residential tenants can go elsewhere and not held to monopoly of LL 2. default position is that land should be freely alienable a. start with this principle when analyzing b. if lease silent about ability to transfer, court reads in ability for tenant to transfer interest c. if term requiring consent in the lease, it is narrowly construed by the courts to favor alienability i. older view that LL may arbitrarily refused to accept a new tenant ii. commercial landowners need to be reasonable 1. making money off deal is not a reason 2. objective test: reasonably prudent person a. considerations: i. financially responsible ii. suitability for building 3. can withhold if there is a reasonable reason

26 4. LL gets guaranteed income from transaction; T bears risk a. If value of rent goes down, still need to pay though could get better deal elsewhere b. If value goes up and there is an interested party to sub-lease or assign, LL can not refuse and then lease without the original T to make money, T can transfer ii. Rule in Dumpors case 1. Constraint in K requiring LL consent before transfer, if make one transfer and LL does not reinstate the provision, LL waives right to consent on future transfers. a. Punishes LL/person trying to restrain alienation b. Once waived, the covenant is destroyed c. Restatement rejects this rule i. Purpose is to assure the LL that a responsible T is in control of land during the lease 2. not majority rule a. Wolf likes b/c in favor of alienation iii. covenants to do or not to do a physical act on the land runs with the leasehold 1. implied covenant (i.e. quiet enjoyment) can be enforced against whoever is the LL at the time the covenant is breached 4. LL-T Revolution/Counter-Revolution a. During the 19th century, tenants had no rights i. LL were treated better that those similarly situation in contracts 1. presumption in favor of LL b/c: a. had FSA interest to protect b. LL had more money at risk c. Owner maintained a present possessory FSA d. Lessee had a personal property interest in the land ii. Independent covenants were used 1. if LL did not fulfill duty, T still had to pay rent a. unless provision in the lease saying otherwise 2. LL could remove the T at anytime, even during a valid leasehold a. Could use force or take personal belongings if needed iii. also protect through tort relationship 1. LL was not liable to tenant b. during the 20th century, 1960s, court made law changed LL-T law i. Justice Wright on the District of Columbia Court 1. does not apologize from the departure from the common law as it existed; does not follow legal precedent 2. in the 18th century, no leases 3. in 19th century, changes made to have leases that favored LL

27 a. LL could bring summary eviction proceeding against T for things such as not paying rent b. T not allowed any excuses b/c of independent covenants 4. changes in 20th century b/c judges felt process unjust ii. first change through constructive eviction 1. if LL wrongfully interfered with the T enjoyment of the demised premises or failed to render a duty to the T as expressly required under the terms of the lease, the T could abandon and cease paying rent 2. in 19th century, LL could evict T for no reason a. T could collect (though unlikely) damages b. Demonstrates K relationship b/w LL-T c. Unless evicted by LL, hard for T to get out of rent 3. some cases of constructive eviction a. no sewage, rats, fire caused by LL fault b. T released from rent (unless clause in lease requiring T to pay anyways) 4. Reste Realty v. Cooper a. Demonstrates leap in doctrine from impossibility to inconvenience b. Cooper accepted new lease when aware of flooding and possible continuous flood damage with caveat that the LL would fix the problem c. Found that implied quiet enjoyment found in a lease i. T has right of enjoyment of premises without interference by the LL d. Court views flooding as recurring and permanent problem e. Tenant needs to vacate within a reasonable time f. Right to constructive eviction i. LL must substantially interfere with T use and enjoyment 1. measured objectively, what a reasonable person regards as incompatible with purposes that premises leased 2. T must vacate to make this claim 3. must be some fault by LL iii. illegal leases is another change 1. at time the LL and T entered into a lease, it was illegal a. Brown v. Southall Realty i. Unsanitary and unsafe that violated housing code 2. does not apply if violations made after the lease was signed 3. minor violations do not render illegal 4. LL has to have actual or constructive notice a. If code prohibits renting of premises in violation of the code then LL can not enforce any covenant to pay iv. change from independent to dependent covenants

28 1. implied warranty of inhabitability a. breach does not even require that tenant abandon the premises (have to leave for constructive eviction) b. Hilder v. St. Peter i. T did not pay rent; LL did not correct defects ii. LL made promises to fix numerous defects that never did and T made at own expense 2. LL will deliver and maintain through period of the tenancy, premises that are safe, clean and fit for human habitation a. Oral and written leases; patent & latent defects b. To determine breach i. First look to relevant housing code ii. See if claimed defect has effect on safety or health of the tenant 3. before action, T must notify LL of breach 4. Remedies now available to Tenant: a. Under common law, no duty from LL to T that premises in tenantable condition i. Unless LL gave express warranty the T took the land as is b. now: ii. Covenants are dependent- Javins iii. counterrevolution that decreased LL rights 1. T can withhold rent 2. put into escrow acct to show good faith 3. can withhold rent for repairs 4. look to statutes on how to handle iv. today, implied doctrine of habitability 1. LL has duty when lease signed and continuing duty 2. T can waive minor defects but against PP to permit T to waive anything making the premises unsanitary or unsafe b. NO retaliatory eviction 1. LL needs reason other than turning in to housing codes to justify eviction a. Can not evict if motive is to retaliate for reporting code violations b. Interference with statutory right provided in housing code b/c undermines legislative policy c. Proof of retaliatory motive is on the tenant i. T can not be in default to assert this defense

29 ii. When LL motive not retaliatory, can evict V. Concurrent Estates 1. Tenancy in Common a. preferred at modern law b. no survivorship rights c. equal rights to possession (unity of possession) i. can have unequal shares in land 1. if grant does not say anything, presume equal shares ii. can have different types of estates d. can be conveyed by deed or by will e. only one unity- each has undivided right to inhabit undivided premises f. if one party does not want to sell then can use partitions i. Partitions 1. by kind (physical) a. physically divide the land into tracts b. preference at common law 2. by sale a. Court orders sale and divides proceeds by interest b. modern practice c. some courts dislike b/c $ does not compensate for emotional attachments to the land 3. Delfine v. Vealencis a. D lives on land & owns garbage business, P wants to develop land b. Trial court ordered partition by sale i. Favored at common law only when: 1. physical partition impractical 2. interests of owners better promoted ii. reversed b/c facts insufficient to overcome preference of kind 1. possible for property to be physically divided 2. would harm D if by sale since home & work ii. alienable interest 1. do not need permission from other tenants to transfer 2. Joint Tenancy a. rights of survivorship i. can not devise interest b/c goes to other joint tenants at death 1. right to survivorship is an expectancy interest, not property right ii. 4 unities + right of survivorship 1. time- rights granted at same time 2. title- rights granted through same instrument 3. interest have equal interests in the land 4. possession (same as tenancy in common) iii. if do not have all unities then its a tenancy in common, not JT

30 iv. creditors can reach estate when alive; pay taxes at death b. preferred estate at common law i. so if interest QCD to grantee, presume that 4 unities present ii. though preferred estate, it was hard to grant a JT at common law: 1. need all 4 unities 2. ensures transferability a. if all unities not present then its a TC b. and prop interest owner can devise/descend interest c. in modern law i. presume that the 4 unities still required ii. if its a jurisdiction that no longer requires, then not a JT iii. needs to expressly say that grantor granting a joint tenancy 1. do not need with rights of survivorship, if needed, information will be provided to us 2. Michigan- grant to A,B, C in JT creates: a. shared joint tenancy in life estate with contingent (indestructible) remainders d. when a JT severs interest: i. other parties interest not effected ii. but JT changes into a TC 1. when sever to self and another; TC created 2. at common law, could not sever into a JT to yourself 3. Riddle v. Harmon a. husband and wife had a JT b. wife unilaterally severed JT to self w/out intermediary device i. this type of action usually done in secret so co-owner does not know that losing interest in survivorship ii. if unknowledgeable party does not know and dies first, then party trying to unilaterally sever destroys and comes into full ownership of the property c. strawmen i. intermediary device used to change an estate from a JT to a TC so party could control interest without the right of survivorship ii. required at common law b/c grantor and grantee could not be the same person b/c of livery of seisin iii. Riddle abandons this rule a. just needs to file the transaction b. other party needs notice i. not actual, filing it is enough iv. so can unilaterally sever JT without strawman 3. Tenancy in Entirety (did we go over this) a. 4 unities plus marriage (divorce terminates the estate) 1. has to be transferred intervivos, not by devise b. at common law;

31 1. husband and wife treated as one person under the husbands control 2. neither has power to partition without consent of other 3. exist today in fewer than half the states) c. Married Womens Property Act 1. gave women some rights to property and to keep own earnings d. Sawada v. Endo 1. D had tenancy in entirety set aside to sons, P claimed that D owed damages and fraudulently conveyed property to sons so did not have to pay 2. found this type of estate not subject to claims by creditors 3. PP in favor of protecting family assets over debt collectors 4. Issues with Co-Ownership a. waste 1. co-owner on the property that is affirmatively or allowing others commit acts that diminish economic value of the property or changing identity i. same analysis as with life estate and future interests b. ousting 1. when one owner trying to claim sole ownership 2. no requirement that a legal owner needs to be in physical possession i. because has actual legal possession 3. in order for SOL to begin running: i. co-owner needs actual notice of ousting 1. Spiller v. Mackereth a. one of the tenants in common used as warehouse b. court said no evidence that P did not allow M to use enter the property c. locks were to protect belongings, not keep him out d. ** in absence of agreement, one co-tenant is not liable to another co-tenant for use and enjoyment of the property ii. need situation where first co-owner notified second co-owner of assertion of co-ownership and starting transition from being there with permission to being there without permission ii. example- certified letter with signed receipt, throw out furniture iii. can try to go for constructive ousting 1. very difficult to prove 2. do not go there unless pretty clear that absent a message ousting occurred 4. likely that in order to get sole possession, will have to pay 5. successful ousting severs the JT c. leases 1. leaseholds do not sever the joint tenancy i. under common law and modern law leaseholds do not sever a. under modern law, calls lease: estate for years 2. co-owner still has reversionary interest in the land 3. in a tenancy in common

32 i. lessee steps into shoes of co-owner for lease period ii. if grantor dies, other co-owner or grantors heirs have to deal with the lease when grantor dies 4. in a joint tenancy i. lessee has lease for as long as grantor alive ii. b/c of rights of survivorship, if grantor dies during lease, the other JT get rights of survivorship and lease ends iii. Swatzbaugh v. Sampson a. valid lease for portion of JT b/c interest not infringed on b. when one co-owner grants lease, others can not cancel the lease or recover exclusive possession of that land 5. if not leases, what severs JT? i. transfers ii. ousting iii. slayer statutes a. Virginia example 1. pretend that shooter died before murdered so estate passes as though the killed survived the shooter iv. simultaneous death a. A and B both died in accident; do not know who died first b. say that A died before B and B died before A d. mortgages 1. title theory borrower gives title to lender and gets back when paid off i. early cases followed this theory ii. JT severed when mortgaged interest 2. lien theory - legal claim of one person upon the property of another person to secure the payment of a debt or the satisfaction of an obligation i. now idea that mortgage does not sever unity of title ii. other party has right to survivorship to the property 3. problem when JT take out mortgage together and one JT takes out loan on the mortgage without the other person i. so if loan out on mortgage, surviving party has the right to the property if party dies without paying off the loan a. banks prevent this by title search & requiring both signatures so can collect on the loan i. Harms v. Sprague 1. mortgage lien on property did not survive death so plaintiff was able to succeed on quiet title action against lenders through right of survivorship e. Responsibilities to Co-Owners i. general rule that when a co-owner is in exclusive possession of concurrently owned property, the co-owner in possession does not need to pay a proportionate share of the rental value a. in TC and JT, all have equal right to possession

33 b. if third party rent- entitled to share of rent actually collected, not at fair market value ii. taxes a. if paying more than share, at least able to recover the amount of share of property i. each one has to pay taxes and mortgage (if joint) ii. so entitled to compensation if paying too much iii. improvements and repairs a. in absence of an agreement, tenant in possession is not entitled to contribution for necessary repairs b. when beyond repairs i. interests of improver taken into account without harming other owners iii. so if sell or partition, could be entitled to improved value b. general rule that need agreement or permission to get money VI. Easements and Servitudes ** on exam: discuss whether easement (or something else, i.e ovenant/servitude/license/estate), how it was created grant, implied, prescription, reserved, what kind it is affirmative/negative, appurtenant/gross, who is dominant/servient tenant, how terminated** 1. easement- rights arising from a grant of a right by one landowner to another ** not an estate in land, but an interest in land a. affirmative i. right to go on land of another and do some act on the land ii. always ask this question first when determining affirmative or negative b. negative i. servient tenant prevented from doing something on own land ii. can not gain by prescription ii. limited in kinds to light, air, support & water iii. came from English rules b/c: 1. no system of recording record titles 2. conceptual difference b/w covenants and easements iii. American law a. recognizes more than these 4 types of negative easements b. gets confusing with covenants- look for clues & analyze c. either appurtenant or gross i. appurtenant- almost always adjoining a. easement benefits its owner in the use of another tract of land b. land benefited is called dominant estate c. land burdened is called servient estate d. when ambiguous, courts prefer this grant i. look to words of limitation e. general rule i. an easement appurtenant to one portion of land may not be extended by the owner of the dominant estate, whether adjoined or distinct

34 ii. MISUSE of EASEMENT a. Brown v. Voss- Voss owned land and Brown had easement, bought more property to build home and wanted to extend access on road to property for purposes of nondominant land- Court here used the general rule but said that because there was not an undue burden from use of the land then it was okay -follows rule but does not grant a remedy ii. in gross a. b. c. d. e. gives the right to use the servient land there is no dominant estate benefits the owner personally, not a tract of land b/c does not benefit owner in use and enjoyment of his land is assignable when it is a business purpose a. Cox cable can assign easement in gross b. Not alienable in England under common law

d. licenses i. gives permission to go on land that would otherwise be a trespass ii. preferred if ambiguous b/c revocable a. only irrevocable when: a. license + interest i. take profit (example: trees, off the land) b. estoppel i. make substantial improvements so estopped from saying that it was revocable b. thus, licenses are purely a contract a. can be revoked b. tickets- reserve the right to take your seat away i. non-assignable, but transferable ii. could be irrevocable for a purpose, such as a particular interest (left binoculars at stadium) e. easements need to satisfy the Statute of Frauds i. so need to be in writing ii. licenses dont need to be in writing f. duration i. not necessarily perpetual, though many in our readings are ii. usually burden the dominant tenement (unless terminated) iii. can limit for years, or life, or until need for it disappears 2. How are easements created? a. by grant i. easiest, IN WRITING, not controversial ii. look at language 1. if says easement appurtenant, then you know its that 2. words of limitation by grant by servient tenement A. WOLF will not use to A and his heirs and ASSIGNS B. the right to use land to Jim and his heirs

35 C. look to see if dominant owner paid MORE b/c of a right so if value of the property increased b/c of a right D. remember and his heirs is not an estate b. prescription **use SOL for adverse possession if no SOL for prescription i. adverse user of the property ii. different than adverse possession b/c that acquires title/ESTATE iii. only can acquired affirmative easements NOT negative easements iv. need to satisfy same elements as AP but acquire right to use c. implied i. not in writing ii. 2 kinds- BOTH require unity of ownership of the dominant and servient estate by a common owner 1. implied by necessity a. idea that grantor must have intended for an easement b. grantor severs a piece of land into 2 estates, either to himself and someone else or 2 new and separate owners i. voluntarily- sale/devise ii. involuntarily- partition/foreclosure c. conveyance/severance causes landlocked parcel and at the time the split was made, the common owner was using the land in such a way as to require the easement i. strictly necessary, not just convenience ii. Othen v. Rosier A. Hill originally owned both properties B. Othen using road across Rosiers property that a levee makes the road not usable by Othen C. Court finds not an easement by necessity i. there was once unity by Hill ii. BUT not strictly necessary b/c there were other ways off the property and could not show that this road was needed and used by Hill at the time the land was severed D. Court finds not an easement by prescription i. not exclusive use 1. if there was a break in permission then could start SOL ii. not hostile to Rosiers use iii. was open and notorious though iv. only need to negate one element 2. implied by prior use a. permanent b. apparent c. reasonably necessary (elastic sense, can have alternative method but

36 d. still need unity of estates by common owner when severed e. it is NOT an easement when owned by original owner b/c can not have an easement in your own land i. called quasi-dominant tenement b/c can not have easement in own land but used the now servient land in such a way when they were combined f. applying Coase theorem i. if TC zero, doesnt matter if allow the easement or not b/c the more productive user will pay for it- here if Rosier awarded then O will pay R to use then R some amount b/w Rs cost and Os benefit, and if O awarded then will use the land d. reservation i. reserve the right to use the property in some way a. already have the property and want to keep it for some use b. example- A owns land, sells to B, but reserves easement of a right of way across Bs land to get to the ocean. c. typically include land sale with grant to my heirs for the right of away across the land d. common law rule could not create reservation in third party i. still the majority rule today ii. Wolf likes b/c encourages alienability since an easement can be a restriction on land decreasing value iii. Willard v. Church- does not follow common law rule a. takes grantors intent into account b. lets the seller create an easement by reservation for the Church to use the parking lot when Church is not a party to the original agreement i. under common law and majority today: A. allow third party to pay for the easement before sale from grantor or pay grantee for the right of way, etc. ii. exception a. ambiguous, best way to make distinction is to think of as a way to keep title: Im going to sell you land except for this one piece. b. so you reserve a RIGHT and except TITLE c. today, predominant rule is that terms are irrelevant i. whether except or reserve before or after doesnt matter ii. CASEBOOK a. reservation- create new right b. exception- preexisting right grantor keeps iii. WOLF- use title v. right distinction a. keep rule b/c harder to burden purchaser e. eminent domain i. government can take private property for public use as an easement ii. must compensate land owner

37 a. owner should be compensated if take land w/ covenant also iii. could be hard to tell if easement or fee a. look at language, circumstances and purpose iv. government does not need to pay if take a license a. a license is revocable b/c a K, govt likely has immunity from K so if only a license then does not need to pay compensation v. last resort to use eminent domain, will try to negotiate first a. many states have codified this b. courts deferential to lawmakers public use definitions f. another kind of easement is a conservation easements i. created by statute a. generally for agricultural land uses, preserve historic areas i. look at statute to see what authorized to do b. perpetual in duration and transferable i. in gross ii. not only for business purposes c. more in the nature of a covenant since negative, but its not imposed by neighbors d. not subject to horizontal privity e. not subject to change of circumstances doctrine 3. How are easements terminated? a. expiration- ends, does not need to go on forever b. release- dominant releases to servient, usually need consideration c. abandonment i. hard to prove ii. usually can just use release or prescription to show same thing iii. need intent AND actions d. merger- dominant and servient estates are united i. no easement b/c cant have an easement in own land e. estoppel i. detrimental reliance of servient on dominant such that the easement is no longer in existence, equitable principle f. prescription i. servient owner can obtain easement back by prescription ii. can block the right of way for example iii. can satisfy all elements of AP and SOL iv. like abandonment b/c if dominant owner had tried to look then can say abandoned v. but remember that the dominant owner would still need notice g. condemnation (like eminent domain above) h. ZONINGgenerally does not terminate an easement i. in symposium, converting golf courses into other uses & need permission ii. interplay b/w zoning and servitudes A. covenants do not supersede ordinances, usually no conflict B. if covenant less restrictive than ordinance, ordinance prevails C. if ordinance is less restrictive than covenant, covenant prevails

38 4. Real Covenants -remember servitudes include: easements, real covenants, equitable servitudes, profits & licenses a. by grant: I promise for myself, heirs and assigns that I will never b. at the time of breach, know which side is benefit and which is burden i. at time of grant, both sides likely making promises c. real covenant law is a combination of property and contract law i. real covenants run with the land A. easement appurtenants also run with the land (even if not mentioned in the grant, whether affirmative or negative they run with the land) B. running with the land means that somebody not a party to the original agreement can bring a suit d. burdens and benefits Coventee/Promise Coventor/Promisor A B D C Benefits Burden i. burden by someone who is not an original party (its not a running case if only have original parties, then it is just a personal covenant) A. example- A and B make promises for self, heirs and assigns not to paint the house orange. A dies and A Jr. paints the house orange. This is a burdens running case: Tee Tor B A A Jr. If B changes mind and decides to paint orange and A Jr. sues: Tee Tor A B A Jr. ii. usually 3 situations where there is a lawsuit on the covenants 1. A wants to sue non-party C. 2. Non-party D wants to sue non-party C. 3. D wants to sue non-party B. e. Three things that need to show for running of a covenant: 1. intent intent that contract will benefit and/or burden future landowners a. England- if covenant was in esse (in existence) at the time of an agreement then did not need to show intent; if not in esse then needed to show intent through language of grant b. TODAY- modern courts will find intent if there is an agreement unless the grant says only for personal use. 2. touch and concern usually in terms of value to the land a. value added to grantees land and decreased value to grantors b. adds value to the LAND, not just to the owner c. deals with property value d. can be burden on land, and only personal benefit to owner

39 e. covenant to pay money usually not enough i. exception: Neponsit case a. finds payment to housing association touches and concerns in form if not in substance b. covenant to pay runs with the land 3. privity ** start w/ this b/c if a burdens case & no horizontal privity, then analysis over; if privity exist keep going & talk about vertical, intent & touch & concern a. horizontal i. relationship b/w the original parties OTHER than the covenant with each other? ii. need property relationship iii. LL-T, conveyance of land with covenant also, or previous existing property relationship iv. no privity in Tulk b/c FSA conveyance didnt count then A. under common law this wasnt horizontal privity 1. landlord-tenant 2. reversionary-life tenant B. Massachusetts (now Nevada) 1. simultaneous interest 2. easement appurtenant- looking for DT-ST C. majority of modern jurisdictions 1. tenurial 2. Massachusetts simultaneous 3. grantor-grantee (fee, life estate) D. so Tulk v. Moxhay 1. though today has horizontal, didnt then 2. created equitable servitude 3. notion that promisors assignee had notice of the agreement, and burden running with the land so enforced in equity E. always need covenant at the same time b. vertical privity c. burdens case- need horizontal and vertical i. need estate of the same duration to successor A. FSA-FSA 1. doesnt matter if not entire fee but needs to be the same kind of estate B. NOT okay if FSA to LE, etc C. estate for years for assignment, not sub-lease d. benefits case- need vertical only i. lax standard ii. can be an estate of a lesser quantum iii. authority that an AP can enforce the benefit

40 a. benefits and burdens case- need horizontal and vertical e. unlike LL-T where the original tenant is still liable to the LL for unpaid rent when there is an assignment or sub-lease, the original promisee is off the hook after transferred land interest e. Six things to ask once you think you have a covenant? 1. Who were the original parties to the agreement that is the subject of the dispute before the court? 2. What was the subject matter of the agreement (that is, what, if anything did each side agree to do or refrain from doing? 3. Who is/are the plaintiff(s) and who is/are the defendant(s)? 4. What is the relationship b/w the original parties to the agreements and the plaintiff(s)/defendant(s), or are they the same people? 5. At the time the original parties entered into the agreement that is the subject of the dispute, IN ADDITION TO the fact that they were a party to the agreement, what OTHER relationship, if any, did the original parties on one side of the agreement have with the original parties on the other side of the agreement? 6. Did the court enforce the agreement? Why or why not? f. covenant- remember intent, touch and concern and privity 1. Neponsit case a. NY court makes an exception for bank to be required to pay property owners association fees i. 2 issues: 1. touch and concern met in substance, not form a. relaxed requirement 2. association as agents for all owners and successors so found vertical privity in fee a. on benefits side, easier to do b. however this is an exception and besides rent usually affirmative covenants as promises to pay in these situations would not be enforced g. equitable servitude- NOTICE, intent, touch and concern 1. originated in Tulk (b/c no horizontal privity at that time) a. today most covenants enforced in equity and not at law A. if suit brought in a law court b/c covenant breached, Court can look at it and say: i. there was intent, T/C and both privity; but ii. SO WHAT and award nominal damages to recognize the breach iii. Also prevents the injunction b/w damages preferred iv. Law courts can award an injunction 1. equity courts can not award damages 2. unless statute allows it a. Massachusetts- no restriction shall be

41 enforced or enforceable unless its determined that restriction is, at the time of the proceeding, of actual or substantial benefit to a person claiming enforcement rights; and if so will only award damages if conditions such as changes in character of properties, conduct of persons from time to time make it inequitable, common scheme no long subject to restriction, etc. 3. DO damages/covenant analysis first and see what the question is asking for (clue that its a covenant and not a servitude- Wolf could ask if its a covenant/equitable servitude or both) b. before Tulk i. only if damages at law were not adequate, then court could order injunctive relief ii. when brought to equity court, court asked to give injunctive iii. relief since could not award damages in equity court iv. courts began to balance the equities 1. under a covenant, court will not look to a change in circumstances b/c viewed as a contract 2. helped the plaintiff w/equitable servitudes 3. hurt plaintiff b/c would ONLY enforce if plaintiff receiving some benefit from the servitude that outweighed the harm to the defendant a. if says condition has changed in such a way as to shift the equities than the court will award it 4. BUT if party benefits and unless there is a substantial changed in circumstances, the Court will reward the injunction a. Rick v. West i. Court will not balance equities when the defendant did nothing but rely on the covenant b. Western Land v. Truskolaski i. Residential restrictive covenant and still benefited owners so though land around had changed it was no so great to make inequitable

42 ii. Even if the council changed the zoning to a commercial area, it is not persuasive to outplace the private-property restrictions v. allow implied reciprocal negative easements 1. common landowner a. Sanborn v. McLean i. 53/91 had covenants ii. Someone wants to put up gas station, own land did not have residential covenant iii. Court enforces by saying inquiry notice and should look to see if neighbors have covenants on their lands 2. WOLF DOES NOT LIKE a. Bad for alienation b. Also common owner should put covenant in each deed; OR c. Record a general plat w/ purpose i. BUT does not do this often b/c of marketing reasons 3. nothing in landowners agreement but it all comes down to notice a. actual i. record or personal b/c someone told you b. record i. constructive/actual notice ii. in the deed but didnt read c. inquiry 4. court will imply a restrictive covenant into your land if others from the common landowner have the agreement 5. notice is everything & floodgates open vi. will not enforce racially restrictive covenants 1. Shelley v. Kraemer a. Court can not enforce b/c would be state action and violate EP if court used to enforce racial agreements b. Did not do covenant/equity analysis though there was not actual, constructive/record or inquiry notice c. Answered constitutional question and civil procedure question instead

43 2. North Carolina golf course case a. owners made grant to use land for a golf course but no colored people could use the land referred to as a restriction b. Court interpreted as a fee simple determinable so land automatically went back to landowners c. HOWEVER, goes against condition subsequent preference i. condition (power to re-enter) ii. Covenant (damages) iii. limitation (auto reverts) d. did this b/c did not have the enforce a restrictive covenant based on race if viewed it as breached if colored people used the course 2. SHOWS NOTICE IS THE MAIN FACTOR a. LOOKS like a covenant but: i. covenant enforced in equity but an element missing for it to run at land; or ii. party seeking enforcement is seeking injunctive relief