Property (In re Marriage of Graham) p 371 For an item to be classified as property, it must embrace "everything that has an exchangeable

value or which goes to make up wealth or estate." Marital Property (371) means all property acquired by either spouse subsequent to the marriage except: o a. Property acquired by gift, bequest, devise, or descent o b. Property acquired in exchange for property acquired prior to the marriage or in exchange for property acquired by gift, bequest, devise, or descent o c. Property acquired by a spouse after a decree of legal separation o d. Property excluded by a valid agreement of the parties

Partition (356) Ouster Accounting Postscript Rents and Profits ***** ALL IMP Taxes, mortgage payments, and other carrying charges, Repairs and improvements Improvements (359) Forfeiture Chapter 6 Term of Years (421) an estate that lasts for some fixed period of time or for a period computable by a formula that results in fixing calendar dates for beginning and ending, once the term is created or becomes possessory. The period can be one day, 2 months, five years, or 3,000 years. In common law there was no limit on the years permitted, but in some American statutes limit the duration of terms of years A term must be for a fixed period, but it can be terminable earlier upon the happening of some event or condition. Because a term of years states the outset when it will terminate, no notices of termination is necessary to bring the estate to an end

Periodic Tenancy (421) a lease for a period of some fixed duration that continues for succeeding periods until either the landlord or tenant gives notice of termination. Example: to A from month to month; to B from year to year. If notice is not gfiven the period is automatically ended for another period. Under common law, half a years notice is required to terminate a year to year tenancy. The death of the landlord or tenant has no effect on the duration of a term of years or periodic tenancy, but it does on the tenancy at will

Tenancy at Will (422) is a tenancy of no fixed period that endures so long as both landlord and tenant desire. If the lease provides that it can be terminated by one party, it is necessarily at the will of the other as well if a tenancy at will has been created. Ends when one of the parties terminates it

The Tenancy at Sufferance: Holdovers (427) The so-called tenancy at sufferance arises when a tenant remains in possession (holds over) after termination of the tenancy. Common law give the landlord confronted with a holdover 2 options. o 1. Eviction (plus damages), or consent (express or implied) to the creation of a new tenancy.

The Lease (428) is it a Conveyance or Contract? It is both a lease transfers possessory interest in land, so it is a conveyance that creates property rights. But it also the case that leases usually contain a number of promises (or covenants, which originally referred to promises under seal- (such as a promise by the tenant to pay tent or a promise by the landlord to provide utilities so the lease is a contract, too, thus creating contract rights Leases can be long, a lease contemplates a continuing relationship between landlord and tenant. Leases can be wordy, full of clauses to handle various contingencies.

Statute of Frauds (430) every state has them, American statues provide that leases more than one year must be in writing. All but a few jurisdictions permit oral leases for a term less than a year; those that do not usually hold that entry under an oral lease plus payment of rent creates a periodic tenancy that is not subject to the statute

Deed

all of the sellers interest is conveyed to the buyer forever. Deeds are commonly brief

Selection of Tenants (Herein of Unlawful Discrimination) (431) 1. Fair Housing Act (enacted in 1968 and amended several times) a. A discrimatory motive need not be proven in order to make out a prima facie case under the Fair housing Act, proof of discriminatory impact or disparate treatment is sufficient. 2. Discrimination in the Sale or Rental of Housing and Other Prohibited Practices 3. Civil Rights Act of 1866 4. Discrimination on grounds other than race, religion, or notional origin. As originally enacted in 1968 did not prohibit discrimination on the grounds of sex, handicap, or familial status. Sex discrimination was added in 1974 5. Discrimination based on family status, and on sex Handicap (436) A physical or mental impairment which substantially limits one or more of the major life activities, a record of having such an impairment, or being regarded as having life activities, but such term does term does not include current, illegal use of or addition to a controlled substance

Hannah v. Dusch The landlord is not bound t put the tenant into actual possession, but is bound only to put him in legal possession, so that no obstacle in the form of superior right of possession will be interposed to prevent the tenant from obtaining actual possession of the demised premises

Ernst v. Conditt (sublease v. assignment) 442**** - Ernst leased the property to Rogers and Rogers and subleased to Conditt. Rogers and Conditt have a contract. Conditt and Ernst do not have a contract - Plaintiff lessors filed an action against defendant lease assignee for overdue rent. The assignee answered the complaint and asserted that he was a subleases and that, therefore, the original lessee only was directly and primarily liable to the lessors. The trial court (Tennessee) found that the instrument was an assignment and entered judgment in favor of the lessors. The assignee challenged the judgment. Assignment (there is a conveyance of the a property to the assignee) - the agreement between Rogers, the original leasee, and the defendant Conditt, is an assignment of the lease, and therefore the defendant is directly and primarily liable to complainants, then Condit has privity of estate and the landlord can sue Conditt under privity of estate

Sublease- Conditt does not have to pay Ernst Sublease (445)- no direct liability to the landlord (its between T and T1 and L has no relationship) If the transfer is a sublease, no privity of contract exist between complainants and defendant, and therefore the defendant could not be liable to complainant on the covenant to pay rent and the expense of the removal of the improvements I think, T1 is never liable to the landlord unless there was amendment to the lease Has no impact on L because T still has legal possession Private deal between T and T1 and there is no deal or relationship between L and T1 T1 has no direct relationship with L There is privity of contract and privity of estate between L and T when T1 assumes possession T still has legal possession

Assignment of the lease Privity of contract does exist between complainants and defendant, and defendant would be liable directly and primarily for the amount of the judgment

Assignment of a lease v. a sublease (445) 1. An assignment conveys the whole term, leaving no interest nor reversionary interest in the grantor or assignor 2. Where as a sublease, may generally defined as a transaction whereby a tenant grants an interest in the leased premises less than his own, or reserves to himself a reversionary interest in the term 3. Under common law distinction between the two is if the instrument purports to transfer the lessees estate for the entire remainder of his term it is an assignment, regardless of its form or the parties intention. Conversely, if the party to transfer the lessees estate for less than the entire team-even for a day less- it is a sublease, regardless of its form or of the parties intention (446) 4. What happens if the primary lease between the landlord and the original tenant is prematurely terminated (448) 5. Assignment - there is a contract between L and T - L can sue T1 under privity of estate not a contract - There is privity of contract between T and T1

Privity of Estate and Privity of Contract Leases give rise to both privity of contract and privity of estate. Privity denotes a voluntary transactional relationship between two or more people or entities. Whether oral or in writing, the lease between the landlord and the original tenant amounts to a conveyance creates of a right of possession from the former to the latter, and that the conveyance creates between the landlord and the tenant the so called privity of estate. If the lease also contains promise by one party to the other, those promises create what is called privity of contract

Kendall v. Ernest Pestana, Inc. (450) Approval Clauses in Lease (minority rule) o A restraint on alienation without the consent of the landlord of a tenants interest in leased property is valid, but the landlords consent to an alienation by the tenant cannot be withheld unreasonably, unless a freely negotiated provision in the lease gives the landlord an absolute right to without consent

Issue. Whether in the absence of a provision that such consent will not be unreasonably withheld, a lessor may unreasonably and arbitrarily withhold his or her consent to an assignment. Reversed in Favor of the P The lease provided that written consent of the lessor was required before the lessee could assign his interest. Thus, the person subleasing requested consent from respondent, who refused (Ernest). OUTCOME: On appeal, the court reversed the order sustaining the demurrer to the complaint, finding where the commercial lease provided for assignment only with the prior consent of the lessor, the consent could be withheld only where the lessor had a commercially reasonable objection to the assignee or the proposed use. The Court found that whether Pestana was acting reasonably was a question for a jury to decide.

Denying consent solely on the basis of personal taste is not commercially reasonable. Denying consent because you want to squeeze a higher rent out of the new tenant is not commercially reasonable.

*** Look at problems on 442. When you get your ice cream you have to pay for your purchase

Privity of the estate (goes more into the conveyance idea) The lessor is putting the other party in possession of the property. The lessor can sue on either privity of contract or privity if estate

Problem 3 on p 448 1. It is a sublease. L can sue T on privity of contract and privity of estate. L cannot sue T1. Suppose in the instrument of transfer there was a covenant (promise) whereby T1 agreed to pay the rents reserved in the head lease. a. Has T1 taken over the whole lease? B. Can L sure T? Yes C. (P449) T1 assumes all the covenants in the lease. T,T1,T2,T3 - Who is liable? L can go after T3 (this is an assignment)

Questions on 457-459, get up to 476 The Tenant Who Defaults (459) Suppose a tenant in possession has defaulted say by failing to pay rent or observe some other lease obligation and the landlord wishes to recover possession. Or suppose the tenant has abandoned the premises prior to the end of the tenancy

The Tenant in Possession Berg v. Wiley (460) Berg took over the lease through assignment from brother. The present dispute arisen out of Wileys objection to Bergs continued remodeling of the restaurant without procuring written permission and

her consequent operation of the restaurant in a state of disrepair with alleged health code violation. Wileys (landlord) attorney advised him to take possession of the premises and lock out the tenant without Bergs knowledge. The jury found that the tenant did not abandon or surrender the premises and the trial court found defendant's reentry forcible and wrongful as a matter of law. The plaintiff intended to retain possession, closing temporarily to remodel. Defendant should have resorted to the available judicial remedies to resolve the claim of breach of the lease. The defendant's lockout of plaintiff was wrongful as a matter of law.

Rule (465) Under the common law, a landlord entitled to possession could resort to self-help without fear of civil liability- so long as he used no more force than reasonably necessary.

Ejectment

Merger When 2 corporations merge and become one corporation When a parent corp. merges with a subsidiary corporation When P merges into S, is it a no change situation or an assignment? S is still using the same property and S is still in possession. On the other hand you can say it is an assignment

Retaliatory Eviction (bottom of 468) Many jurisdictions prohibit this because the eviction is motivated by a landlords desire to retaliate against a tenant who has for example withheld rent payments because of the condition of the leased premises. Can usually be asserted as a defense in a summary proceeding.

Landlords Remedies in Addition to Eviction Usually a landlord will want to do more than simply terminate the lease and evict the defaulting tenant in possession because for example bank rent may be due, the rent set in the lease may exceed what the landlord can obtain on a reletting, the leased premises may have been damaged in some way, and so on. But the remedies available in these and related instance are essentially the same as the remedies landlords might pursue against tenants who have abandoned possession.

The Tenant Who Has Abandoned Possession

the landlord MUST try to use a good faith effort to MITIGATE DAMAGES o EX: if a baseball goes through your window and it rains well you should have fixed the window

Sommer (landlord) v. Kridel (469) Is a landlord seeking damages from a defaulting tenant under a duty to mitigate damages by making reasonable efforts to re-let an apartment wrongfully vacated by the tenant Decision was reversed and court HOLDS that the landlord does have an obligation to make a reasonable effort to mitigate dames in such a situation The judgment of one case was reversed because the plaintiff landlord did not mitigate his damages and could have re-leased the apartment right away; other case was reversed and remanded to determine whether the landlord could have mitigated the damages. EX: if the tenant gets our of lease in January and landlord wants back rent from January-July and the landlord could have found someone to rent the place from January-March well he should rent that apartment because it is UNREASONABLE not to.

- Mitigation

Holdover Tenant (232 in supp) a tenant who overstays the termination date of the lease gives rise to a unique issue o 1. Landlord may evict the holdover tenant, or o 2. Elect to renew the holdover tenants lease. American Rule Jurisdiction (new tenant evicts old tenant) concerning the tenants right to actual physical possession of the leased property, the landlord may lease property to a new tenant even though a holdover tenant remains in possession of the leased premises. In the American Rule jurisdiction, it is the new tenant who is responsible for evicting a holdover tenant, while still having to pay rent to the landlord English Rule Jurisdiction (Landlord MUST evict tenant) The landlord must evict a holdover tenant. The new tenant is excused from paying the rent UNTIL the landlord successfully evicts the holdover tenant. Even in an English Rule, the landlord ONLY MUST make the leased property physically available for

the tenant to occupy on the first day of the lease term. Thereafter, it is the tenants responsibility to ward off trespassers and defend the tenants legal right to possession and use of the leased premises

Disputes to Evict a Nonpaying Tenant and Collect Rent the primary dispute in landlord and tenant laws center around the tenants obligation to pay rent due under the terms of the lease Common Law o The tenants duty to pay rent due to the landlord was INDEPENDENT of any obligation of the landlord under the terms of the lease o Modernly At east some of the landlords lease covenants are DEPENDANT so that the landlords breach of certain terms in the lease may excuse the tenant from her obligation to pay rent due under the lease. 2 important dependant lease covenants that bind the landlord are: 1. Covenant of Quiet Enjoyment, 2. Implied Warranty of Habitability (and for residential properties only)

Landlords Options Depend on Nonpaying Tenants Possession or Abandonment when a tenants fails to pay rent, the starting point for analyzing the range of options to landlord is to determine whether the tenant REMAINS IN POSSESSION of the property or has ABAONDENED the leased premises

Eviction of a Tenant in Possession if the tenant remains in possession but fails to pay rent, the landlord may attempt to evict the tenant (with the ultimate objective of replacing the tenant with another one who will pay the rent) Eviction terminates the lease, and thereby extinguishes the nonnonpaying tenants obligation to pay rent after the eviction is completed. ***The evicted tenant will still owe rent due for the time the tenant reminaded in possession, but will not owe rent after being evicted.

Types of Evictions the Tenant may claim If the tenant loses and is evicted, the tenant will owe rent until the eviction occurs, but not for the remaining lease term. Eviction terminated the lease, and with it the tenants future obligation to pay rent

1. Self-Help a. The landlord who attempts to lock out the tenant and retake possession without used the judicial process (a self help eviction) may pay damages to the tenant instead if a court later finds that the landlords self help eviction was wrongful i. Wrongful Eviction 1. The landlord lacked authority under the terms of the lease to retake possession 2. The means used by the landlord to self-evict the tenants were not peaceable 3. The jurisdiction prohibits self-help eviction (even a peaceable one) and instead requires the landlord to use the judicial process to evict a tenant 2. Retaliatory Eviction a. If the tenant being evicted has given the landlord repeated notice of needed repairs to the property (without a response from the landlord), a court may find that the landlord has engaged in a prohibited retaliatory eviction. 3. Prohibited Housing Discrimination a. A landlord who selectively exercises the power under the lease to engage in a self help eviction and retake possession of the property in a discriminatory manner has engaged in prophibited housing discrimination under the federal Fair Housing Act 4. Summary Eviction Actions a. The landlord may prefer to bring a summary eviction action in court rather than engage in a self-help eviction. 5. IWH

Landlord Options when Tenant Abandons The landlord has a different set of options: 1. First, the landlord may choose to treat the tenants abandonment as an implied offer of surrender, and accept the tenants surrender. a. If the landlord accepts the tenants offer of surrender, the lease is terminated, and the abandoning tenant is not liable for the remaining rent due under the terms of the lease. 2. Second, the landlord may refuse to accept the tenants surrender, but attempt to relet the premises to mitigate the abandoning tenants damages a. Majority Rule Jurisdiction i. The landlord has an affirmative duty to mitigate the tenants damages (rent due for the rest of the lease term( by making a reasonable effort to relet the leased premises

b. Minority Rule i. The landlord may allow the property sit vacant under the abandoning tenants lease term expires, and the sure the abandoning tenant for all of the rent due under the terms of the lease Anticipatory Repudiation Damages an offer of surrender by an abandoning tenant that is accepted by the landlord normally cuts off the tenants liability for future rent under the remaining term of the lease. If the tenant repudiates the lease then a few courts have applied: o Doctrine of Anticipatory Repudiation Permits the landlord to collect damages for the tenants repudiation of the lease prior to the expiration of the lease term This is an exception to the rule of landlord-tenant law that rent is owed only as it becomes due under the terms of the lease

Analyzing Ambiguous Landlord Conduct (235 Supp) Landlords perspective: the landlords ambiguous conduct is purposefully strategic. The landlord wants to wait and see what happens before deciding to accept an offer of surrender by the tenant

Disputes Other Than The Payment Of Rent Example: landlord may sue tenant for damages incurred by the landlord that reasonably result from the tenants breach of a specific covenant in the lease. For a commercial tenant, deterioration in the physical condition of the leased premises caused by the tenants failure to make repairs necessary to maintain the condition of the leased premise o 1. Involuntary Waste o 2. Permissive Waste o 3. Affirmative Waste if tenant changed the physical condition of the leased premises

Disputes Involving a Subtenant (Assignment and Sublease Arrangements -241 1. A sublessee who does not assume the terms or the original lease cant be sued for money. a. The landlords only option it to evict a sublesee who is in possession without paying rent

2. An Assignee can be sued for rent due, but only for the period beginning when the assignment occurs because an assignee is in privity of estate with the landlord. 3. An assignee of commercial property can be sued for failure to make repairs necessary to maintain the condition of the leased premises (known as the covenant of good repair). The covenant of good repair is implied by law whenever two parties are in privity of estate 4. For an assignee of residential property, the covenant of good repaid is eliminated by the IWH, which requires the landlord to make necessary repairs

L, T, T1, T2, T3 T, T1, T3 have privity of contract with L and they are all liable through assignment. T2 is not liable because he has privity of estate with T1

Abandonment vs. Surrender 1. Abandonment a. Occurs if the tenant has vacated with no intent of returning to occupy the premises and has ceased to pay rent due under the terms of the lease 2. Surrender

Mitigate Majority rule is to mitigate (478 under modern notions)

Security Deposits Must be returned within 30 days usually, unless they find damages

Read 493-515 finish the chapter Reste Realty Corp. v. Cooper Quiet Enjoyment

Waiver of the Constructive Eviction (489) The common law at one time viewed the promises expressed in leases- a promise, say on the part of the landlord to keep the premises in repair- as independent, such that a breach by the landlord gave the tenant a cause of action for damages, but not the right to suspend rent payments or terminate the tenancy Exception: o the obligation to pay rent was dependant upon the tenants having possession undistributed by the landlord ( or someone claiming through the landlord.

Other Tenant Remedies (489)

Scope of the covenant of quiet enjoyment

Hilder v. St. Peter Hilder rented an apartment from St. Peter. There were a number of problems with the apartment, from broken windows to broken locks to broken toilets. St. Peter repeatedly promised to fix the problems but failed to take action. After 14 months, Hilder moved out and sued St. Peter for breach of warranty of habitability. Because the court holds that the lease of residential dwelling creates a contractual relationship between the landlord and tenant, the standard contract remedies of recession, reformation and damages are available to the tenant when suing for breach of the implied warranty of habitually Was not awarded punitive damages and on appeal he did not raise the issue and the court said he would have won the punitive damages

Implied Warranty of Habitability (496) (499) An adequate standard of habitually must be met and a breach occurs when the leased premises are uninhabitable in the eyes of a reasonable person Courts look to any relevant local or municipal housing code, they also make a referred to the minimum housing code standards enunciated. Does not render pointless the doctrines of quiet enjoyment, constructive eviction, and illegal leases

Essentially negates the tenants duty to repair- is based in part of this view, but bear in mind that the warranty does not apply across the board to all residential leases and seldom extends to commercial leases

Essential Facilities (496) Facilities vital to the use of the premises for residential purposes

Damages (501)- depends on jurisdiction 1. The difference between the value of the dwelling as warranted and the value of the dwelling as it exists in its defective condition The agreed rent is evidence of fair rental value as warranted 2. Others say: the difference between the agreed rent and the fair rental value of the premises as they were during the occupancy in the unsafe, unsanitary or unfit condition 3. Other states use a percentage-diminution approach: a. The agreed rent is reduced by a percentage equal to the percentage of lease value lost by the tenant in consequence of the landlords breach. 4. Other Remedies: a. Tenants right to assert breach of the implied warranty of habitability as a DEFENSE justifying rent withoind, retention of possession, and rent abatement, or to stay in possession, pay rent, and bring an AFFIRMATIVE CAUSE OF ACTION for damages. i. The tenant may also terminate the lease and sue for damages 5. Equitable remedy of specific performance Theory of Constructive Eviction (489) If one could characterize a shortcoming in the leased premises as an unlawful disturbance by the landlord- as a breach of the covenant of quiet enjoyment implied in all leases- and if the disturbance was so substantial as to amount to eviction, and if the tenant thereafter abandoned the premises, then it was as though the tenant had been evicted (the eviction was constructive. Once evicted then tenant was relieved of the obligation to pay rent

Dependence of Covenants Doctrine of constructive eviction serves as a substitute for dependency of covenants (look on 429 for dependence of covenants

Covenant of Quiet Enjoyment (490) Breached only when the landlords conduct had the effect of depriving the lessee of the beneficial use of the demised premises, whether by positive acts or interference or by withholding something essential full enjoyment and included within the terms of the lease.

Partial Eviction (490) -Actual and constructive. If there is an actual eviction, even tough from a part of the premises only, the tenant is relieved all liability for rent not withstanding continued occupation of the balance Problems on P 491 1. They did not dismiss the lawsuit a. Formal Conviction 2. A. L fails to control excessive noise made by neighbor. The landlord should go over to the party a. C. when the protestors come into the lobby then the landlord should take care of it 3. Trying to use the court to determine a substantial violation so when they leave they wont be held liable for the rent Chicago Board of Realtors, Inc. v. City of Chicago (508) The Chicago city council enacted a residential landlord and tenant ordinance. The ordinance was not a rent control measure, rather it codified the implied warranty of habitability and beyond that established new landlord responsibilities and tenant rights group of property owners wanted to sue because they believed ordinance was unconstitutional

Chapter 10 Private Land Use: Controls The law of Servitudes- (763) (375 sup) **If you own the benefit estate then you own that easement Easement in Gross 1. 2. 3. 4. - its personal and not connected with land, you have a right to fish, swim Dominant Estate Servement Estate Easement appurtenant Easement Gross

Easements Create by direct grant ( deed, to convey an interest to use someone elses promise), a person (A) gives a right to another (B) to use the property (not ownership), but Can have duration comparable to any of the possessory estates. An easement can be in fee simple (perpetual duration), or for life, or for a term of years.

Irritant- a burden not of my choosing Equitable Servitudes Real Covenants Implied by necessity (Easement) If you buy land that you dont have access to

Permission by itself can be revoked (black letter law) Irrevocable License - Becomes an easement through estoppel, if you cant revoke 5. Easement by Prescription a. Follows same channel as adverse possession b. Adverse Possession only one difference i. Hostility I think Profits a prendre *** he loves the language (766) - in the days of common fields there was little need for defining rights of way, people wandered where they wished (I think) - If you give permission then you can revoke it unless the doctrine of estoppel applies Negative Easement (376 supp) - Restricts the owners use At common law was a promise by the owner of the land not to use his own land in way that interferes with light, air flow, or support of a structure on an adjacent parcel, or the water flow from an artificial stream

Creation of Easement (768) Generally requires a written instrument signed by the party to be bound thereby. However, in addition to the usual exceptions of fraud, part

performance, and estoppel, an easement may, under certain circumstances, be created by implication or by prescription The grantor reserves the right of access Willard v. First Church of Christ, Scientist (768)- church won ***Court reserved that an easement can be reserved in favor of a third party but stated that an easement be reserved in favor of a third party.

1. Was this a conveyance or grant? a. A to B subject to the reservation subject to the church parking - Plaintiffs purchased property that a former owner had conveyed subject to an easement for automobile parking during church hours. Plaintiffs' deed did not mention the easement. In issue was whether a grantor may, in deeding real property to one person, effectively reserve an interest in the property to another. The court reversed the judgment of the lower court and held that such a reservation vested the interest in the third party. - Judgment reversed in favor of defendants. The grantor, in deeding the property to plaintiff's seller had vested an interest in the property to defendant. - ** adhere to the common law rule (770), primary objective in construing a conveyance is to try to give effect to the intent of the grantorIn general, grants are to be interpreted in the same way as other contracts and not according to rigid feudal standards - Common Law RuleReservation (769)***773 Allows a grantors whole interest in the property to pass to the grantee, but revests a newly created interests in the grantor Is a provision in a deed creating some NEW servitude which did not exist before as an independent interest. o Ex: O conveys blackacre to A reserving a 20 foot wide easement of way along the south boundary of blackacre. The easement did not exist as an independent interest prior to the conveyance by O. An EXCEPTION is a provision in a deed that excludes from the grant some PREEXISTING servitude on the land. For EX: after the above conveyance, A conveys Blackacre to B, except for the easement previously reserved by O

Reservation and Exceptions Court reserved that an easement can be reserved in favor of a third party but stated that an easement be reserved in favor of a third party.

Regrant Theory (773) an easement RESERVED by the grantor was not a reservation at all (which would be void), but a regrant of an easement by the grantee to the grantor. Thus a deed O to A and her heirs, reserving an easement in O, was treated as if it were two deeds. The deed grants A a fee simple, then A is treated as granting an easement back to O

Question 4 on 773 is it appurtenant or in gross

License (773)2 as easement must be distinguished from a license. A license is oral or written permission given by the occupant of land allowing the license to do some act that otherwise would be a trespass. Licenses are common: The plumber fixing drain, the guest coming to dinner all have tickets. The privilege to use the land resembles an easement, but a license is revocable whereas an easement is not. o Two Exceptions 1. A license coupled with an interest cant be revoked 2. A license couple with an interest is one that is incidental to ownership of a chattel on the licensors land EX: O grants to A the right to take timber from blackacre, owerd by O. A has interest (a profit a prendre) and an irrevocable license to enter the land and take the timber. *** a license that cannot be revoked is treated as an easement

Holbrook v. Taylor (774)An easement is irrevocable the permission cant be revoked A license may become irrevocable if the license is couple with a (written and irrevocable) profit right, or by estoppel based on reasonable detrimental reliance by the licensee The homeowners built a residence on property adjoining the landowners' property. With the permission of the landowners, the homeowners used and maintained an access road owned by the landowners during the period of home construction. After the construction, the homeowners continued to use the roadway to access the public highway The court held that the evidence justified the finding of the trial court that the right to the use of the roadway had been established by estoppel. The use of the roadway by the homeowners to get to their home from the public highway, the use of the roadway for the construction of the

residence, the general improvement of the premises, and the maintenance of the roadway, all with the actual consent of the landowners or at least with their tacit approval, clearly established that the license to use the subject roadway could not have been revoked. OUTCOME: The judgment is affirmed. Henry v. Dalton (777) Revocable license Normally a license is revocable at will by the owner of the property Suggests:

Van Sandt v. Royster (779) Landowner knew that his house was connected to a sewer when he purchased it but was unaware of the location of a lateral sewer drain that ran through his property or the fact that the drain had been constructed 30 years earlier for the use of neighboring properties as well as his own. There was no mention of an easement in any deed. The problem arose when sewage backed up into his basement. On appeal, the court held that when an owner utilized part of his land for the benefit of another part, a quasi easement existed, and that if the owner conveyed the quasi dominant tenement, an easement corresponding to the quasi easement was ordinarily regarded as vested in the grantee, provided that it was of an apparent continuous and necessary character. The court held that parties were assumed to intend the continuance of uses that were in a considerable degree necessary to the continued usefulness of the land, especially those necessary uses that had so altered the premises as to make them apparent upon reasonably prudent investigation. The court found that the existence of plumbing fixtures and lines in the landowner's house made the easement apparent although it was not visible. - Apparent and visible is not necessarily synonymous OUTCOME: The court affirmed the judgment of the trial court that an easement by implication had been created by the common predecessor of the parties. The court did not reach the issue of an easement by prescription.

Parole License If Grantor (seller) knows about easement then Easement- the owner can have an easement because he owns the land

Vested right to use Shared interest with the person who owns the fee simple absolute 5 Ways to create o 1.

Implied Easements (2 ways)*** 1. QUASI EASEMENT a. The first easement is implied on the basis of an apparent and continuous (or permanent) use of a portion of the tract existing when the tract is divided. The existing use b. An easement implied from a prior existing use was in Van Sandt v. Royster c. Owner may make use of his land for the benefit for another party Quasi Servient Easement

2. Easement by Necessity (recognized by all jurisdicitons) a. Second situation is when the court finds the claimed easement is necessary to the enjoyment of the claimants land and that the necessity arose when the claimed dominant parcel was severed from the claimed servient parcel. b. An easement also can be created without a writing by operation of law when a single parcel under common ownership is severed into 2 or more parcels with separate ownership. c. Arises if the necessity for the easement (generally a right of ingree and egress to a landlocked parcel) was created by the severance, and this necessity for access was created by the original severance. (378 supp)

Appurtenant Easement (383 supp) is an easement where the benefit is attached to a particular parcel of land (not to a person). To determine if the easement is appurtenant, look for the magic words traditionally associated with the creation of an appurtenant easement. If the writing states that the easement is being conveyed to the grantee and his/its heirs, successors and assigns, and that the easement is being conveyed for the benefit a specific parcel, then the easement is appurtenant If the writing lacks these magic words, the easement can be appurtenant only if the parties intent to benefit a parcel of land (and not a person) is clearly indicated by the writing that creates the easement

Othen (P) v. Rosier (786)Othen was landlocked and he used Rosiers land to get off of his The Plaintiff, Othen (Plaintiff), and claims a roadway easement across two tracts of land owned by the Defendant, Rosier (Defendant). The Defendant had constructed a levee which made the lane so muddy that it was impassable and deprived Plaintiff of access to and from his farm. CONCLUSION: there is no easement by necessity, mere convenience is not enough o Must prove there is no way out at the time of severance Court considered severance at August 26, 1896 and had to prove there was land lock at that time. There was a failure of proof on that date o At the time the property was sold there was no way out for the other owner of a property o Hill may easily have gone off the land a few different ways No evidence to support at the time of that sale he had no way out before

Rule In order to find an implied easement, you must look back to the time of the common owner and determine whether the easement was a necessity and not a mere convenience at the time of the severance of the dominant and servient estate.

Rule***** Necessity alone without reference to any relationship between the respective owners of land, is not sufficient to create such a right Generally, the hostile and adverse character of the user of the easement is necessary to establish an easement by prescription is the same as that which is necessary to establish title by adverse possession. If the enjoyment is consistent with the right of the owner of the tenement, it confers no right in opposition to such ownership (790) The rule is well settled that use by express or implied permission or license, no matter how long continued, cant ripen into an easement by prescription, since user as of right, as distinguished from permissive user, is lacking For adverse possession o Since a person cant claim adversely to himself, the courts uniformly maintain that the prescriptive period does not begin to run while the dominant and servient tracts are under the same ownership

Some courts grant an easement by necessity where access to the land exists but it is claim to be inadequate, difficult, or costly

Strict Necessity refusing to recognize an easement by necessity when allegedly landlocked parcel has access to a public road on foot

Water Necessity in a few jurisdictions a surface way of necessity will not be implied if the tract has access to navigable water

**** Questions on page 794

Easement by Necessity- last as long as its necessary always used when you are landlocked supported by a public policy that no land be made inaccessible. (793) o EX on 793: The severance took place when the owner sold lot 4 (it went in order). Does owner of lot 5 have an easement over 4? Yes, 5 has an easement over lot 4

West Rule (794) Statute give an owner of landlocked land the right to condemn an easement across neighboring land upon showing the requisite necessity. The landowner must pay damages to the owner of the land where the easement is sought. Under these statutes, it does not matter how the land locking occurred, prior common ownership of the dominant and servient estate is not required o Why should servient owner of a common law easement by necessity receive no compensation whereas the servient owner of a privately condemned easement by necessity receives compensation from the benefitted owner?

Doctrine of Implied Reservation (793) - easement by grantor not recognized

Prescriptive Easement To establish, the person who claims the right must have engaged in: o 1. An actual, open and notorious use of another land that is o 2. Adverse (hostile) and o 3. Continuous for the statute of limitations period

Implied Easement (783) Easement by Implication evolved from equity

Profit Interest (supp 411) treated as an easement, right to use my land to cut timber The right to remove from anothers land something that is part of the land (timber, minerals, fish

Easement in Gross

Dead People (785) If you bury a dead person you have a right of way to visit

Stop at 819

Lost Grant Theory (795,796)- minority if a use was showing to have existed for 20 years, it was presumed that a grant of easement had been made and that the grant had been lost. Draws a confusing distinction between acquiescence and permission. Under the theory, the owner of the land is presumed to consent or acquiesce in the use, after all, the owner (or his predecessor) is thought to have granted the easement, the use is not adverse. To secure a prescriptive easement under lost grant theory, the claimant must show that the use was not permissive and also that the owner acquiesced (did not object). Language that the owner must acquiesce in the easement sometimes appears, like a pentiment, in opinions in jurisdictions that have erased the lost grant theory. Look at example on 796

A makes a Road across Os land. Public prescriptive easements (798)- consent destroys PE in most states a public prescriptive easement can be obtained by long continuous use by the public under a claim of right. The landowner must

be put on notices, by the kind and extent of use, that an adverse right is being claimed by the general public, not by individuals. Where a public road is being claimed the same requirements generally apply as are applied to private prescriptive easement. However, that public prescriptive easements may be difficult to prove than private o CLAIMANTS MUST PROVE that the nature and extent of the use is sufficient to establish notice to the landowner that the public in general, rather than simply a group of individuals o Some courts dont recognize this o IN a jurisdiction not following the fiction of the lost grant, to prevent a prescriptive easement from being acquired, the owner must effectively interrupt or stop the adverse use.

Beach Access (798) in most states, the state holds in public trust, the beach from the water to the mean high tide line (the foreshore or wet sand area). The dry sand portion of the beach between the mean high tide line and the vegetation line is subject to private ownership The dry sand area is where you tan and set up tans, picnics. The dry sand area is owned by the private owner

Raleigh Avenue Beach Assn. V. Atlantis Beach Club (800) Issue- the right of the public to use a 480 foot wide stretch of beach The public trust doctrine requires the Atlantis Beach club to open to the general public at a reasonable fee for services provided by the owner. It becomes public but they charge to pay for life guards and cleaning

Facts Atlantis Beach club owned beach property that it operated as a private club. Until 1996, the beach on the Atlantis property was open to the public free of charge, however, Atlantis established a private beach club. Limiting the public access to the beach by charging $300 for six seasonal beach tags. On June 2002, Tony Labrosciano a member of the Raleigh Association, was issue a summons for trespassing when he attempted to leave the wet sand area and walk across the Atlantis Property to take the most direct route back to his house. On August 14, 2002 the Association filed a complaint against Atlantis.

Rule Public Trust Doctrine (803)*** Derives from English common law that all of the land covered by tidal waters belongs to the sovereign held in trust for the people to use Extends to all land covered by the ebb and flow of the tide and all inland lakes and rivers that are navigable Its an easement to use a dry sandy area (beach)

Assignability of Easements (812) The benefits and burdens of appurtenant easements pass automatically to assignees of the land to which they are appurtenant, if the parties so intend and the burdened party has notice of the easement. Where the benefit is in gross, however the benefit may not be assignable

Miller v. Lutheran Conference and Camp Association (812) It is devisable under modern law, and it is restricted as a unit Must operate as one unit and people can negotiate and would be a disaster. Must operate in an agreement.

Rule (supp 384) The minority common law rule o Is that if the writing is silent, the benefit of the easement in gross is presumed to be assignable. A limited exception applies for the benefit of an easement in gross that is highly personal in nature. EX: if the easement in gross is for recreational use of another persons land (such as bird watching or hunting or fishing), then the easement in gross is presumed NOT TO be assignable without the consent of the owner of the burdened parcel The Majority Rule (384 supp) o is that if the writing creating the easement in gross is silent concerning transfer of the benefit, the benefit is transferable without consent of the owner of the burdened parcel only if the benefit is commercial in character. The benefit of an easement in gross is considered to be commercial in character if it has primarily an economic purpose

Facts:

The grants did not include baithing but they got that through prescription Legal questions regarding rights of boating, bathing and fishing in an artificial lake Appellee husband acquired title to boating and fishing privileges by grant and he and decedent to bathing rights by prescription; appellee husband made valid assignment of a one-fourth interest in rights to decedent; but rights could not be commercially used and licenses granted without appellees' consent. CONCLUSION- cost to be paid by defendant o 1. That Frank C. Miller acquired title to the boating and fishing privileges by grant and he and Rufus Miller to the bathing right by prescription; o 2. That he made a valid assignment of a one-forth interest in them to Rufus Miller, but o 3. That they cannot be commercially used and licenses there under granted without the common consent and joinder of the present owners, who with regard to them must act as one stock. It follows that Rufus Miller did not have the right, in and by themselves, to grant a license to defendant.

Issue Under PA property law, does the assignee of an easement in real property have the right to further assign rights in another assignee who takes to those same rights? Holding: No. The assignee cannot divide the assignment in an easement in gross; instead he must share them. So, Rufus and the church had to share the land alike. One cannot convey a share in the common right

Prescriptive Easements (389 supp) 1. An actual, open and notorious use of anothers land that is 2. Adverse (hostile) and 3. Continuous for the statute of limitations period Easement in Gross (383 supp) is an easement where the benefit is given to a particular person, and does not attach to a parcel of land (might be used for personal use and was not intended to go beyond the life of the person) Must be transferred from one person to another using a written assignment that satisfies the statute of frauds o Two brothers has easement in gross and one brother died. Could heirs of the brother be devised? o Is an easement in gross assignable? Modern law is yes if used for COMERCIAL use Old law no its not

o An easement in gross is assignable unless it is restricted o Is it devisable? Their assignable but they have to operate as one stock. Easement Appurtenant - the benefit goes to the person who is the owner of the property

Read through termination of an easement read through Railroad case

Brown v. Voss (820)- Scope of Easements Issue Whether the holder of a private road easement can traverse the servient estate to reach not only the original dominant estate, but a subsequently acquired parcel when those two combing parcels are using in such a way there is no increase in the burden on the servient estate.

Facts Predecessors in title of parcel A granted to the predecessor owners of parcel V a private road easement across parcel A for ingress to egress from parcel B D placed logs, a concrete sump and a chain link fence within the easement. P sued for removal of the obstructions, an injunction against defendants interference with their use of the easement and damages. Defense counterclaimed for damages and injunction against plaintiffs using the easement other than for parcel B The supreme court determined that plaintiffs' extension of the use of the easement for the benefit of the non-dominant property did constitute a misuse of the easement even though there was no evidence of an increase in the burden on the servient estate. The court concluded, however, that it did not follow that defendants were entitled to injunctive relief. The court held that the trial court did not abuse its discretion in denying defendants' request for injunctive relief. The P acted Reasonably in the development of their property and that there was no damage to the D from the P use of the easement, and that there was no increase in volume of travel, there was no increase in the burden on the servient estate

**** One way to terminate an easement is by abandonment In order to establish an abandonment there must be in addition to nonuser, acts by the owner of the dominant tenement conclusively and unequivocally manifesting EITHER a present intent to relinquish the easement or a purpose inconsistent with its future existence. (837)

Preseault v United States Termination of Easements***** HE LOVED IT The government cant take your property without compensation Switches were tracks were removed. There was never a move by the state or the Railroad to reinstitute service over the line, or to undertake replacement of the removed tracks and other infrastructure necessary to return the line to service. Under the transportation Act of 1920, in order to abandon a line, a railroad must receive permission of the Interstate Commerce Commission. Railroad had easement to put tracks on persons land. Then they abandoned the land and tried to reuse the land. They were not suppose to because they did not use the proper procedure. Preseaults are the owners in fee simple of land which railroad lines ran along. The United States created the Interstate Commerce Commission and instituted the Rails-to-Trails Act, which resulted in this suit. Facts Online Preseault owned land which railroad tracks were originally on (we assume under the permission of the owners). When the railroad shut down in 1970 and in 1975 removed its railroad tracks, the railroad never applied for an abandonment order as required by the Rails-to-Trails Act set for by the ICC. The railroad then entered into an agreement with the state of VT and city of Burlington that the latter would maintain the former railroad strip as a public trail, which was approved by the ICC in 1986. The ICC at that time also authorized the railroad to discontinue its service. PL's sued, claiming the Rails-to-Trails Act was unconstitutional. Supreme Court ruled against them. Now they bring suit claiming that the federal government, acting through the ICC, took their property when it authorized the conversion of the former railroad right-of-way to public use. PL claims the permanent physical occupation of the land by the government or the public is a taking of the owners' property, DF denies liability under the 5th Amendment.

Holding Easements also ended at the time the railroad was ended in 1975, and further conveyance from the ICC to the state and subsequently the city was unauthorized under the 5th amendment without just compensation.

Rule Typically, the grant under which such rights of way are created does not specify a termination date. The usual way in which an easement ends is by abandonment, which causes the easement to be extinguished as a matter of law. Questions on P. 830- 5 and 6, 7 4. O grants A an easement of way over blackacre to read adjacent land owned by A. The easement location is fixed by mutual agreement. Subsequently O proposes to change the location of the easement, at Os expense, in order to facilitate development of Os land. A objects. 5. 6. Would have to pay fair market value to get out. 856 Easement Termination (841)- how to terminate an easement 1. Release (391 supp) a. Easement Owner may agree to release the easement. Because easements are interests in property subjet to the Statute of Frauds, normally a release requires a writing. Oral is ineffective. 2. Expiration a. If the duration of an easement is limited in some way, it ends through expiration at the end of the stated period. b. Similarly an easement created to end upon the occurrence of some event (sometimes called a defeasible easement) expires automatically if and when the stated event occurs. c. Easement by necessity end when the necessity that gave rise to it ends 3. Merger a. Ends by merger if the easement owner later becomes the owner of the servient estate. b. Terminates automatically by operation of law c. Terminates all four types of easements. Express, implied from prior use, implied from necessity, and prescriptive. (391) 4. Estoppel a. An easement may end through estoppel if the servient owner reasonably relies upon a statement or representation by the easement owner. 5. Abandonment a. Mere non use the easement owner does not constitute abandonment, but an affirmative act b. in several states a prescriptive easement ends by abandonment upon non use for the statutory period of time

c. The person who holds the benefit of the easement or profit MUST 1. CEASE TO USE IT and 2. INTENT TO ABANDON the easement d. State of mind may be shown by an oral statement of the abandoning party. It is not sufficient to release however the oral release coupled with nonuse could be sufficient to prove abandonment 6. Condemnation a. IF the government exercises its eminent domain power to take title to a fee interest in the servient estate for a purpose that is inconsistent with continued existence of the easement. b. They would have to pay compensation to the servient owner and compensation to the person who uses the easement 7. Prescription a. If the servient owner wrongfully and physically prevents the easement from being used for the prescriptive period, the easement is terminated b. ONCE PERECTED, will terminate by operation of law if the owner of the burdened parcel can successfully INTERUPT the easement holders use. 8. Necessity (moran said that one) a. If a landlocked property has a way out Negative Easement (842) is the right of the dominant owner to stop the servient owner from doing something to the servient land. o English courts: The right to stop blocking your windows, interfering with air flowing to your land in a defined channel, removing the support of your building, interfering with the flow of water in an artificial stream The traditional negative easements could arise by prescription o American Courts Dont follow the same as the English Refer negative easements as equitable servitude

New Negative Easements 1. Conservation Easements a. Preserves scenic and historic areas and open space, includes adverse possession b. An owner of land can give a public body or a private charitable organization (such as a land trust) a conversation easement, preventing the servient owner from building on the land except as specified in the grant

c. They are perpetual (forever) in duration, are transferable, and can be in gross i. Can be deductable as a charitable gift on income tax returns. People object to the huge tax breaks ii. The easement has to be in perpetuity (forever) Brownfields (847) parcels previously contaminated by industrial use

Facade Preservation Easement is a device for preventing the faade of a house registered on the national Register of Historic Place from being altered

Primary Residence Easement Is a reaction to the growing popularity of vacation homes whose owners leave the property vacant for most of the year-drive by neighbors

Covenants Running With Land (847) Covenant Running with an interest in an estate English held there was only privity between landlord and tenant

For the BURDEN TO RUN 1. Must be in writing, Statute of frauds, 2. Can be in the deed, the parties must INTEND to find successors (that original deed is just not between the 2 original parties 3. Must touch and concern the land 4. Touch and Concern (look up) 5. Horizontal Privity and Vertical Privity (p850 diagram) 6. The successor must have notice Must there be a sale of land or can 2 existing property owners make a covenant not to do anything? The issue is horizontal privity WILL NOT exists.(which u need) However, they can transfer the property X to make the covenant.

A. Real Covenants (849) a. A promise respecting the use of land that runs with the land at law i. EX: 849 READ***

1. Suppose B, owner of Blackacre, has promised A, owner of Whiteacre, that Black shall not be used for industrial purpose. B sells Black to C, and A sells White to D. C constructs a factory. D sues C for damages. Will the covenant run to C and D? a. If A, before assignment, sues B, A is suing on the contract. There is PRIVITY OF CONTRACT between A and B, and the law of contracts governs. The question whether a covenant runs arises only when a person who is not a party to the covenant is suing or being sued. 2. THERE ARE 2 ENDS OF THE COVENANT (849) 1. Benefit 2. Burden a. The BENEFIT end originally held by A and the BURDEN end originally held by B. The burdened parcel is the servient tenement. If A conveys White to D, and B still owns Black and constructs the factory, and D sues B, D must allege that the benefit runs to D.The burden remains with B, the original promisor. b. If B conveys Black to C, who constructs a factory, and A still owning White sues C, A must allege that the BUDEN runs to C. c. IF black and white were conveyed to D and C as above and D sues C, D must allege that both the BURDEN and the BENEFIT run Privity of Estate (850) 1. Horizontal Privity a. Privity of estate between the original covenanting parties 2. Vertical Privity a. Privity of estate between one of the covenanting parties and a successor in interest

Diagram on 850**** A ------privity between original parties known as Horizontal Privity B A= promisee benefit to White Acre B= promisor, burden on Blackacre

A to D is Vertical ^^^ privity between promisee and assignee VERTICAL PRIVITY VVVVV D

B to D is vertical^^^ Privity between promisor and assignee (Vertical Privity) VVVVVV C

Burden (info on 851-852) good example to*** Horizontal privity of estate is required for Burden of a covenant to run at law Not required for benefit

Tulk v. Moxhay (854)- Equitable Servitudes Equitable Servitudes Need a writing Touch and concern the property o A restriction that directly effects the value of the property Notice (actual, constructive or inquiry)

Sinks its tentacles into the soil, burdening the land itself and not the esate The ownership of the land will give u a cause of action. It is not a contract but the ownership of the property. P filed in junction granted to restrain the D from converting or using the the pice of ground and square garden, and the iron railing round the same, to or for any other purpose then a s square garden and pleasure ground in an open state and uncovered buildings. The Plaintiff sold Leicester Square with the restriction that it be maintained in a certain form as a public pleasure ground. The deed restriction was covenant for heirs and assigns requiring that the land be maintained as a square garden. The Plaintiff continued to own homes and live around the square after its sale. In 1808, the person who originally purchased Leicester Square from the plaintiff had notice of the covenant contained in the deed. Forty years later, the property was sold to the Defendant, Moxhay. Moxhal sought to build upon the land on the square. Plaintiff brought a bill for injunction to stop any construction. Holding

Whether or not the covenant runs with the land, such an agreement could properly be enforced because the one who purchases (Moxhal) the land from Tulk had notice of that covenant. When Moxhal bought land he knew of the covenant and therefore he could not build on it

Problems on 851-853 ***Creation of Covenant 1. 2. 3. 4. In writing with intent to bind successors Horizontal and Vertical privity Touch and concern the property Notice

Covenants run in equity against successors who give no consideration (donors, heirs, will beneficiaries), whether or not they have notice Benefit to run (look on p852 for examples***) Horizontal privity Easier for the benefit to run it is a positive, you dont have to acquire the full interest that the promissory had JUST SOME OF IT Easier for the benefit to run than the burden

Burden to run Horizontal privity is required The successor must acquire ALL OF THE ESTATE (entire) interests of the original party of the contract.

Both the benefits and burdens of affirmative covenants run to legal **Legal (non trust outside of the trust if inside of trust it is equitable). However the life tenants liability for performance of an affirmative covenants is limited to the value of the life estate. Creation of Covenants (859) A real covenant must be created by a WRITTEN instrument signed by the covenantor. It is an interest in land within the meaning of the Statue of Frauds. If the deed creating the real covenant is signed by the grantor only, and it contains a promise by the grantee, the promise is enforceable against the grantee. The grantee is bound by the act of accepting such a deed. A real covenant cannot arise by estoppel, implication, or by prescription, as can an easement. An equitable servitude is an interest in land. But unlike a real covenant, it may be implied in equity under certain limited circumstances. An

equitable servitude, which arises out of a promise, cannot be obtained by prescription. ****Look at questions on 852***** Adverse possession (853) does not begin to run against a real covenant or equitable servitude until the promise is breached. AP who have not yet gained title are liable on the affirmative covenants burdening the property, but the benefits of affirmative covenants burdens run to adverse possessors who have not yet gained titles to the property only under limited circumstances

B takes As parcel by adverse possession. B later open a restaurant on the premises. O brings an action against B for damages for breach of the covenant made by A. O will lose. The burden does not run against B because B, as an adverse possessor, is not in vertical privity with A, the original promisor.

Under the common law the burden doesnt run to the lessee but the benefit would run to the lessee because the it goes to anyone who has SOME interest not all of the interest. Easements (born by created by express, reservation, necessity, irrevocable license, profits, prescription

Covenants (contract) Gives an interest to the person owning the estate

Equitable Servitudes Need a writing Touch and concern the property o A restriction that directly effects the value of the property Notice (actual, constructive or inquiry)

**Difference between covenants and equitable servitudes (The nature of their birth process

Sanborn v. McLean (D) - wanted to build gas station, but the lot is subject to a reciprocal negative easement baring a use so detrimental to the enjoyment and value of its neighbors. Defendants and their predecessors in title were bound by constructive notice under the recording acts. For 30 years, the united interests of all persons interested had carried out the common purpose of making and keeping all lots strictly residential, and defendants were the first to depart there from. OUTCOME: The court affirmed the decree with a modification that work already completed on building need not be torn down if the building could be utilized for purpose within restriction. Constructive notice Legal fiction used to signify that a person or entity is legally presumed to have knowledge of something, even if they have NO actual knowledge of it.

Inquiry Notice I have to take the next step to find out if there is a restriction if you can observe the use of the property in question and see there might be a restriction

Reciprocal Negative Easement Validity and Enforcement of Covenants*** 3 Requirements 1. INTENT that the benefit and/or burden of the covenant run to successors of the original parties 2. NOTICE on the part of purchasers of the original promisors, and 3. That the covenant TOUCH AND CONCERN land a. In addition, vertical privity may be required in some jurisdictions for the benefit (but not the burden) of a covenant to run in equity.

Neponsit Property Owners v. Emigrant Industrial Savings Bank (864) HOMEOWNER ASSOCIATION DO HAVE STANDING TO ENFORCE DEVELOPMENT COVENANTS, BOTH IN LAW AND EQUITY, IF THEY HAVE BEEN GIVEN ENFORCEMENT POWER (only way is if the declaration of covenants denies it

- Affirmative Covenant raises the vertical privity and touch and concern requirements MOST jurisdictions do not require vertical privity for the enforcement of covenants, in law or equity. If the benefit is in gross- that is not benefitting a dominant estate- the BURDEN will not run

Outcome: plaintiff's lien was a valid and enforceable covenant that ran with the land. Additionally, defendant's defenses were properly struck from its answer as redundant because they were merely argumentative denials of allegations plaintiff's complaint. If the fees were not paid for the homeowner association, they would become a lien against the individual homeowners property until paid. Is a covenant to pay homeowners fees to a corporation acting as an agent of the parties in privity of estate binding, when the corporation is acting for the benefit of the homeowners (a homeowners association), even though the association has no legal interest in the property (no privity of estate)? Yes

Touch and Concern: Affirmative Covenants Covenants RESTRICTING the use of land have almost always been held to touch and concern land Must touch and concern the land in a substantial degree Was there vertical privity for the homeowners assoc? In substance if not in form, the covenant is a restrictive covenant which touches and concerns the defendants land, and in substance, if not in form, there is privity of estate between the plaintiff and the defendant. (871) ***NEW Restatement discards touch and concern (874)

Vertical Privity (872) - VP has never been required for the burden of a equitable servitude to fun. Corporation it is a fiction

Defeasible Fees as Land Use Control Devices Defeasible fees (determinable fee, fee simple subject to condition subsequent, and fee simple subject to executory limitation, may be employed to control land use. A defeasible fee differs from a servitude in

that the remedy for its breach is forfeiture, whereas the remedy for breach of a servitude is damages, injunction, or enforcement of a lien Popular before modern use of servitudes, but are INFREQUENTLY used to control land used except in gifts for charitable purposes. A defeasible fee can be used to create a right of enforcement in a third party or in a person who owns no land.

Shelley v. Kraemer (Discriminatory Covenants) 876 The cases involved suits in state courts to enforce restrictive covenants in deeds of residential property whereby the owners agreed that the property should not be used or occupied by any person except a Caucasian. 2 cases amalgamated together with similar facts. One from Missouri, the other Michigan. 30 out of 39 owners of a section of St. Louis, signed an agreement, stating for 50 yrs., no part of the properties would be occupied by any person not of the Caucasian race, which was duly recorded. The district described included 57 parcels of land where the owners held 47. Shelly, petitioners, pursuant to a contract for sale exchanged valuable consideration for a warranty deed from Fitzgerald. Rule No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the U. S.; nor deprive any person life, liberty, or property w/o due process of law; nor deny any person the equal protection of the law.

Restrictive Covenants (Private Agreements) Generally described as restrictive covenants, which have as their purpose the exclusion of persons of designated race or color from the ownership or occupancy of real property.

Termination of Covenants: May be discharged by 1. MERGER on the basis of unity of ownership of the benefit and burden by the same person 2. A formal RELEASE, which is normally written and recorded 3. ACQUIESCENCE, which arises when the P has failed to enforce the servitude against other breaches and then seeks to enforce the servitude against the defendant 4. ABANDONMENT, makes the servitude unenforceable as to the entire parcel rather than only as to the P immediately involved 5. The equitable doctrine of UNCLEAN HANDS, the court will refuse to enjoin a violation of a servitude that P previously violated

6. The equitable doctrine of LACHES, which involves an unreasonable delay by the P to enforce a servitude against the defendant cause prejudice to the D (LACHES does not extinguish the servitude but only bars enforcement), 7. ESTOPPEL, if the D has relied upon the P conduct making it inequitable to allow the P to enforce the servitude a. Servitudes may also be terminated through the exercise of the governments domain power and on the basis of prescription Western Land co. v. Truskolaski (882)

***Substantial Changes
Trial court found substantial changes in traffic patterns and commercial activity had occurred since 1941 in the vicinity of the subdivision. The appellant failed to show that the area in question is now unsuitable for residential purposes. Appellant said appelle abandoned and said purpose of the covenant had been thwarted. Court said covenant still exists. In 1941, the developer subjected the lots in a 40-acre development to covenants restricting them to only single family dwellings and prohibiting business of any kind. The homeowners brought an action to prevent the developer from constructing a shopping center on a parcel of land located within their subdivision. The court found substantial evidence that the restrictive covenants remained of substantial value to the homeowners and that the changes since 1941 in commercial development and traffic in the area outside the subdivision were not so great as to make it inequitable or oppressive to restrict the property to single-family residential use. The developer failed to show that the subdivision was unsuitable for residential purposes because of changed conditions or that the purpose of the restrictions had been thwarted, even if the property was more valuable for commercial purposes. How Does a Covenant Terminate? 1. 2. 3. 4. 5. 6. 7. 8. 9. Merger ***Imp ones are bolded Release Acquiescence Abandonment Counter Prescription Unclean Hands Latches Estoppel Change and Circumstances in the Community

Rick v. West (888) D won Plaintiffs owned a substantial tract of land that had restrictive covenants limiting the land to residential use. Defendant owned a small parcel of land on the tract that was conveyed to her by plaintiffs' predecessor in title. Defendant objected to plaintiffs' proposed sale of some of their land for nonresidential use. Plaintiffs filed suit, seeking a declaratory judgment that the restrictions were no longer enforceable and to declare defendant be limited to pecuniary damages, if any, for violations of the restrictions. The trial court denied plaintiffs' motion for declaratory relief, because it determined plaintiffs failed to meet their burden of proving significant changes had occurred in the subdivision that would merit invalidating the restrictions over defendant's protests. The court further reasoned N.Y. Real. Prop. Law 346 provided no basis for awarding pecuniary damages when the restriction was not outmoded.

Restatement of Property 7.10 Modification and Termination of Servitudes Because of Changed Conditions 1. When a change has taken place since the creation of a servitude that makes it impossible as a practical matter to accomplish the purpose for which the servitude was created, a court may modify the servitude to permit the purpose to be accomplished. If modification is not practicable, or would not be effective, a court may terminate the servitude. Compensation for resulting harm to the beneficiaries may be awarded as a condition of modifying or terminating a servitude. 2. If the purpose of the servitude can be accomplished, but because of changed conditions the servient estate is no longer suitable for uses permitted by the servitude, a court may modify the servitude to permit other uses under conditions designed to preserve the benefits of the original servitude. 3. The rules stated in 7.11 govern modification or termination of conservation servitudes held by public bodies and conservation organizations, which are not subject to this section Settle Doctrine of Equity restrictive covenants in respect of land will be enfored by preventive remedies while the violation is still in prosecpt, unless the attitude of the complaining owner in standing on his covenant is unconscionable or oppressive.

Pocono Springs Civic Association, Inc. v. MacKenzie (892) Nahrstedt v. Lakeside Village Condominium Association, Inc.

Chapter 11 Legislative Land Use Controls: The Law of Zoning (925) Nuisance Laws it does not prevent nuisances from arising, but merely gave damages or an injunction after the fact in an expensive lawsuit by one neighbor against another.

Zoning Designed to prevent harmful neighborhood effects Courts hold zoning in general to be constitutional but specific provisions could prove to be unreasonable

Village of Euclid v. Ambler Realty Co. (930) Facts: - Company owned a 68-acre tract of land in the Village when Village adopted an ordinance establishing a comprehensive zoning plan, based upon 6 classes of use, 3 classes of height and 4 classes of area. Appellee's land came under U-2, U-3 and U-4 (see P.994), and various H and A requirements. Appellee claims this has substantially reduced the market value of the property by limiting its use. - Appellee claims these are unconstitutional and in violation of the Fourteenth Amendment because it deprives Appellee of liberty and property without due process of law and denies it the equal protection of the law and it offends against certain provisions of the Constitution of the state of Ohio. Issue Under federal law, does the ordinance establishing the zoning violate the fourteenth amendment? No. The ordinance must be for the benefit of the public welfare. Euclid Ordinance (938) *** The zoning devsauled their property. That was an ECONOMIC taking which requires COMPENSATION** - Known as Euclidean zoning. Districts are graded from highest (single family residence) to Lowers (worst kind of industry) - Higher use is permitted in areas zoned for lower used by not vice versa. Thus one can put a single-family house in an apartment district, and both uses in a commercial district, but not a commercial use in a residential district nor an apartment house in a single family district. - Noncumulative Zoning o Prohibiting houses and commerce in industrial zones (often called industrial parks)

The Structure of Authority Underlying Zoning (941)- Part of the Comprehensive Plan*** zoning is an exercise of the police power, essentially, the power of government to protect health, safety, welfare, and morals. 1. The Standard State Zoning Act (941) a. Empowers municipalities to regulate and restrict the height, number of stories, and size of building and other structures, the percentage of lot that may be occupied, the size of yards, courts, and other open spaces. b. The regulations must be made in accordance with a comprehensive plan and designed to lessen congestion in the streets, to secure safety from fire, panic and other damages c. To enact a zoning ordinance a city must create a planning (or zoning) commission and a board of adjustment (sometimes called a board of zoning appeals). The commission and board are composed of citizens appointed by the mayor. d. Thus expert planners, citizens commissioners, and politicians are ALL INVOLED in ENACTING a zoning ordinance***** e. If ordinance needs amending later, the commission recommends the amendment to the city council. f. Board of Adjustments -

Zoning Laws have an economic impact on how we live The Comprehensive Plan (942)***only half of states require Nonconforming use as long as you dont change your business Some jurisdictions put an amortization period. And the question is whether it is a fair and reasonable period of time to recover.

The standard Act says that zoning regulations shall be in accordance with a compressive plan. A comprehensive plan is a statement of the local governments objectives and standards for development Trend appears to be flexible in its interpretation, but more than a guide to growth that may be rejected in some circumstances.

Some communities when the effect a zoning change. Amortization

1. Nonconforming Use 2. Amortization a. You are allowed to continue to use your property over some period of time. b. You can continue your business but the time period is negotiable c. A reasonable amortization period WOULD NOT be unconstitutional, but you must find a period of time that is appropriate (reasonable time). You must provide adequate time for elimination of the nonconforming use. 3. Variance (954) (Different than an exception) a. Variance will be granted if the use you intend will otherwise comply with the residential character and the restriction as applied creates an undue hardship. b. It will increase the utility of the property and increase its value. i. 1. Cant make the standard met forth in the zoning restriction and therefore have a hardship ii. ***Dont have to meet ALL OF THE RESTRICTIONS iii. Ex: House can only be 10 inches tall but u need 12 inches. 1. I want to build a house but I cant on this property so there is a hardship a. Personal Hardship (956) 4. Exception (different than a variance) a. Referring to the provision in a zoning law that authorizes a particular use but needs a license or permission to meet the conditions in the exception to qualify for the use) b. Is in a statute saying you can use this as a LANDFILL if you do the FOLLOWING. THE CONDITIONS ARE IN THE STATUTE. If you meet the conditions the court will meet the exception. 5. Spot Zoning (963) a. An AMENDMENT to the restrictions of the zoning i. You have a piece of property and want to use it for a different purpose. There is no hardship so cant get a variance. ii. Destroys integrity of the comprehensive plan iii. Change from Zone 1 to Zone 2 and argues there are changed conditions and we need to have a modification of the zoning AND IF YOU DO THAT you are destroying the COMPREHENSIVE PLAN TAKING Examples on (950) 1. Mere reduction in value is NOT A TAKING 2. Changes in nonconforming use run with the land and it survives change in ownership.

Tax Concept- if I expend an improvement of $350,000 it might take 30 years to get my money back through the investment under the tax code. ****City gave a permit for 33 stories however the city made a mistake and were only aloud 19 they had to destroy the stories above the 19. The Economics of Zoning (944) Zoning is just one of many ways governments control the use of land It is tricky to determine whether the price of any particular property will increase as a result of land use regulation

The Nonconforming Use- Amortization PA Northwestern Distributors, Inc. v. Zoning Hearing Board (945) ****Any amortization and discontinuance of a lawful pre-existing nonconforming use is per se confiscatory and violative **** Majority Rule- a reasonable amortization period WOULD NOT be unconstitutional, but you must find a period of time that is appropriate Appellant opened an adult bookstore in appellee township. Thereafter, appellee township enacted an ordinance making appellant's bookstore a nonconforming land use in its then location; the ordinance contained an amortization provision that would have required appellant to cease its business within 90 days. The state supreme court reversed appellee zoning board's determination that the amortization provision was valid. The court held that the amortization and discontinuance of a lawful pre-existing nonconforming land use was per se confiscatory and violative of the Pennsylvania Constitution. Here, there was no evidence that appellant's bookstore violated obscenity laws or was in any other way unlawful, constituted a nuisance, or was abandoned. Thus, appellee township's ordinance was unconstitutional on its face, as it allowed an unconstitutional "taking" of appellant's property without just compensation. OUTCOME: Order reversed, as amortization provision in appellee township's zoning ordinance was facially unconstitutional where it required the discontinuance of appellant's lawful pre-existing nonconforming land use without providing just compensation

Nonconforming Use Destruction (951) o Destruction of a nonconforming use Usually terminates it, and so too for abandonment Abandonment o Requires intent to abandon the nonconforming use.

Discontinued (951) o If operations cease for the given period, the nonconforming use may be held discontinued

Vested Rights (952) a proposed use might be protected if sufficient commitments have been made- plans drawn, permits obtained, the site prepared, construction begun Vested rights doctrine varies in practice from jurisdiction to jurisdiction, BUT the CRITICAL variables include how far the developed has gone in obtaining governmental approvals, how much money has been invested in good faith, and on what the money has been spent.

Commons v. Westwood Zoning Board of Adjustment ***About square footage PROBLEM: The board simply drew conclusions that were unsupported by the facts Issue- was there hardship? HOLDING: Court found the evidence before the Board was insufficient to decide whether or not hardship had been established. Thus, the issue was remanded to Board for additional factual consideration. Plaintiff land owners owned a vacant lot with a frontage of 30 feet and a total area of 5190 square feet. The property was located in a residential zone that required a minimum frontage of 75 feet and a minimum area of 7500 square feet. Plaintiffs sought a zoning variance. Minimum lot size and floor area requirements were not per se related to public health, safety, or morals. Rule Specific factual findings concerning hardship to applicant and affect on purpose of the ordinance are required to justify decision to deny a variance. Self Imposed Hardship (957) Not looked on with favor EX: bought property and began to build and exceeded zoning height restrictions prior to seeking a variance, ALTHOUGH the buyer knew a variance was required.

Personal Hardship (956) Can you make a change in the property for a handicap child? NO Personal hardships are irrelevant seems to be the prevailing view, but in a couple of rare instances courts have upheld grants of area variances for increased access by persons with disabilities.

o Argument: bring in pictures, doctors to say this is a serious disability Variance Exception a provision in the zoning laws that is already there. Certain property may be used as a landfill but you must meet certain requirements. Landfill must be kept clean and meet the amount of square feet and other conditions. To get a permit you must meet the conditions set forth in the statute already present. within direct conflict with the existing zoning and we are arguing we should be exempted because we have a hardship. So long as we can establish hardship and conformity then it SHOULD be granted

Case on 957- 984

Chapter 12 Eminent Domain and the Problem of Regulatory Takings Eminent Domain** is the power of the government to force transfers of property from owners to itself There are constraints however. The 5th Amendment enjoins: nor shall private property be taken for public use, without just compensation *** Police Power grants the government to take property

5th AmendmentLOretto v. Teleprop Mention of Public use to mean that property may be taken only for such uses, the government may not condemn for private purposes, however willing it might be to pay compensation for the forced transfer

Public Use Test (1073) 1. If the ends are sufficiently PUBLIC in one sense or another, the test is passed 2. Kelo v. City of New London (1065) Eminent Domain ***One guy wanted to bring Feiser for a industrial development and bring jobs in

***What is difference between public purpose (can be anything) and public use 1. Public Purpose 2. Public Use ***The court tried to broaden it The city approved a development plan that had been submitted by the development agent. The plan called for construction of a waterfront hotel, restaurants, retail stores, residences, and office space; also, portions of the development area were to be used for marinas and for support services. The city authorized the agent to purchase property in the development area or to acquire it by eminent domain. The agent purchased most of the required property, but the nine owners refused to sell. The Court found that the development plan served a public purpose and therefore constituted a public use under the Takings Clause of the Fifth Amendment. The plan was not adopted to benefit a particular class of identifiable individuals. Although the owners' properties were not blighted, the city's determination that a program of economic rejuvenation was justified was entitled to deference. There was no basis for exempting economic development from the broad definition of "public purpose." The Court declined to require a reasonable certainty that the expected public benefits would accrue, nor was it proper to second-guess the city's determination of the boundary of the development area. OUTCOME: The judgment of the Connecticut Supreme Court was affirmed.

Berman Case Loretto (appellant) v. Teleprompter Manhattan CATV Corp. (1082) Appellant purchased an apartment building in which the prior owner had allowed appellee cable company to install a cable on the building and to furnish cable television services to the tenants. Appellant filed a class action alleging that the installation was a trespass and a taking without just compensation. Reversing the state court, the Court held that the physical occupation of an owner's property authorized by the government was a "taking" of property. N.Y. Exec. Law 828(1) (Supp. 1981-1982) provided that a landlord must permit a cable television company to install its cable facilities upon the landlord's property. The Court explained that to the extent the government permanently occupied physical property, it effectively destroyed the right of the owner to exclude or control that portion of her property. The Court noted that Constitutional history confirmed that this was a taking and recent cases did not question the rule. In addition, the purposes of the Takings Clause compelled retention. The Court concluded that the amount of compensation was a matter for the state court to determine on remand. OUTCOME: The Court reversed the judgment and remanded the matter so that the

state court could determine the appropriate amount of compensation due the landlady. ***The 5th Amendments taking provision would not then be read to say nor shall private property be taken pursuant to the police power, without just compensation.

Permanent Physical Possession of Occupancy Taking Flights that are not directly flown over your house cannot constitute a taking DIRECT overflights is an invasion and there can be a taking

Federal Government - Federal Gov can take states land

Public Use Where the public will have the benefit to use (park, city hall) Much more restrictive to limit the power of eminent domain

Public Purpose Increase job is good, (area redevelopment, it is unlimited in scope in meaning and it is NOT SPECIFIC opens it up to more broad EX: We need a football stadium because our team is good and will bring money

Police Power To get rid of nuisance and have zoning laws applied

How do you prove Just Compensation(1077) *** just compensation is the payment of market value (fairness or justice) Experts?

Hadacheck v. Sebastian (1096)

Petitioner was convicted of a misdemeanor under an ordinance enacted by the City of Los Angeles, which prohibited the operation of brickyards within the city limits. On petitioner's writ of habeas corpus filed against defendant in error, the police chief for the city, the state supreme court upheld the ordinance as a good faith police measure and declined to find that it discriminated against petitioner. On appeal, the Court affirmed and dismissed the writ. Even though operation of a brickyard was not a nuisance per se, it was within the city's police power to regulate brickyard operation so long as the resulting ordinance was not arbitrary or discriminatory. Petitioner claimed that the ordinance resulted in a taking under the state's power of eminent domain. But the Court noted that petitioner was not deprived of the use of the property's unique soil, ideal for making high-quality bricks. What was prohibited was the firing of the bricks at the current location. That the ordinance might have been crafted differently did not make it an abuse of the state's police power, which was accorded a presumption of good faith absent a contrary showing. OUTCOME: The Court upheld the state Supreme Court's order and dismissed the writ of habeas corpus by petitioner, a brickyard owner, against the defendant in error, the police chief for the City of Los Angeles. The Court found that the City of Los Angeles did not act arbitrarily when it used its police power to enact an ordinance that prohibited the operation of a brick kiln within the city limits.

Pennsylvania Coal Co. v. Mahon (1103) Defendant appealed appellate court's decision for plaintiffs in plaintiffs' suit to enjoin defendant from mining under plaintiffs' house and removing the supports and causing subsidence. A deed granted plaintiffs the surface rights to certain land but reserved to defendant the right to mine all coal under the house. Plaintiffs argued that the Kohler Act, 1921 Pa. Laws 1198, extinguished defendant's right to mine under plaintiffs' surface land. The Court reversed. The Court held that the Kohler Act was unconstitutional as a taking of defendant's rights under a valid contract. In order to protect themselves, plaintiffs should have contracted to acquire more than the surface rights. The Kohler Act could not have been used to terminate the valid contractual rights defendant received, nor could the Act could be used to take defendant's contract rights without adequate compensation. OUTCOME: The Court reversed the lower court's decision, finding that the Kohler Act was not a legitimate exercise of police power, but rather was an unconstitutional taking of defendant's contractual and property rights because it served to take away those valid rights without adequate and just compensation.

We will do portions of Chapter 8 before Chapter 7 (switch in time will save nine): 1. Chapter 8 pages 645-667-mostly lecture by Professor Moran(but you are required to read) 2 Regular class attention and preparation between pages 667 through 685 3. You and I will review in detail the complex problems on page 685; problem 2 in particular 4. Chapter 7, pages 519-540 the matter of realtors and the contract of sale will be covered by Professor Moran (but you are required to read) 5. Regular class review in class of pages 541-615 of Chapter 7 6. Professor Moran will do 617 through to 644; study in detail the Murphy case on page 621 through 629, and the Bean case on page 640.

Chapter 8 Title Assurance

Luthi v. Evans (651) The owner assigned her interest in all her oil and gas leases in a particular county to the assignee. The instrument of conveyance contained a "Mother Hubbard" clause to describe the land in question. Later the same owner sold her interest in one of the wells in the same county to the buyer. The buyer filed suit to quiet title to the land. The district court found in favor of the buyer and the appellate court reversed. The buyer appealed and the court reversed. The statutes indicated that the legislature intended that recorded instruments of conveyance, to impart constructive notice to a subsequent purchaser or mortgagee, should describe the land conveyed with sufficient specificity so that the specific land conveyed could be identified. The recording of the assignment from the owner to the assignee, which did not describe with sufficient specificity the property covered by the conveyance, was not sufficient to impart constructive notice to a subsequent purchaser such as the buyer. Because the buyer had no actual knowledge of the prior assignment from the owner to the assignee, the later assignment to the buyer prevailed over the assignment from the owner to the assignee. OUTCOME: The court reversed the judgment of the appellate court in favor of the assignee and ruled in favor of the buyer in his suit to quiet title to oil and gas leases.

Marketable Title we want to have title insurance that is

Notice Jurisdiction

has to do with the recording system

EX: A makes a gift to B, B doesnt record, and A sells to C and C is not aware of dealing between A and B. C is a bonified purchaser. - C will win against B because 1. C is a bonified Purchaser without notice (you cant be a BNP if you dont pay anything) 2. B did not record and C is not on notice C wins and then A make a conveyance to D but C has not recorded yet. : D will win - C must record ***Lets assume records 1st D, C, B. Who ever records first wins, in this case D Race Notice Requirements 1. Record 1st 2. Must be Bona fide Purchaser (BFP) Actual Notice C sells to D and then C sells to B but B is aware of Ds transaction Entry Notice Shelter Rule Example on 646: Mother Hubbard Conveyance Orr v. Byers (661)
A written judgment obtained by the husband of plaintiff administratrix misspelled the name of defendant judgment debtor. The abstract of judgment that was recorded also misspelled his name. When he later sold his real property to defendant realty purchaser, a title search failed to disclose the abstract of judgment, such that the judgment lien was not identified and the proceeds were not used to satisfy the judgment. The husband then sought a declaratory judgment that defendants judgment debtor, realty purchaser, and lenders had constructive notice of the judgment lien under the doctrine of idem sonans because, when pronounced, the misspellings all sounded like the correct name. When the husband died, plaintiff was substituted in his place. Judgment was entered for defendants and plaintiff appealed. In affirming, the court ruled that idem sonans did not apply to impart constructive notice of the judgment lien because the proper spelling of defendant judgment debtor's name was a material matter to give record notice. Idem sonans applied only to issues of identity and would not relieve a judgment creditor of the obligation to file a proper abstract. OUTCOME: Judgment for defendants was affirmed because the doctrine of idem sonans did not apply to the abstract of judgment to impart constructive notice of the judgment lien on property sold to defendant realty purchaser; idem sonans applied only to issues of identity and not to matters where the proper spelling of a name was a material matter.

Tract Index Ex: (665)

Example on 667: Record first your home free and its your land!!!****

****WORK ON PROBLEMS ON 685 Race Notice you have to record to win Notice- dont have to record to win but if you dont record you may lost to another BFP (In Florida it is notice) Get that Deed recorded now!!! With NO DELAY Read footnote 9 on p 668***************** Shelter Rule Why does C prevail over A in a notice jurisdiction when A records before B Does? As recommendation puts C on notice as to As deed so C cant claim to be a subsequent purchaser without notice. There answer is: C claims protection under the Shelter Rule. A person who takes from a bona fide purchaser protected by the recording act has the same rights as his grantor. This rule is necessary if the recording act is to give B the benefit of his bargain by protecting his market.

Notice Statute (669) Race-Nation Statute(669)

3. You and I will review in detail the complex problems on page 685; problem 2 in particular 4. Chapter 7, pages 519-540 the matter of realtors and the contract of sale will be covered by Professor Moran (but you are required to read) 5. Regular class review in class of pages 541-615 of Chapter 7 6. Professor Moran will do 617 through to 644; study in detail the Murphy case on page 621 through 629, and the Bean case on page 640
Race Notice you have to record to win Notice- dont have to record to win but if you dont record you may lost to another BFP (In Florida it is notice)

Questions on p 668**** Notice and Race notice only on exam 1. O conveys to A, who does not record. O dies, leaving H as her heir. H then conveys to B, who records. B purchases (BFP for value because he paid money) for a valuable consideration and without notice of the deed from O to A. Who gets property? Last thing on the record is O is the grantee because when A got the land he did not record it. 2. A trumps B under shelter rule and C benefits In race notice EVEN if C knew about B then C still wins. 3. O borrows money from A ($10,000), then O borrows $14,000 from B. A does not record but B records. O then borrows C and gives C and C has no notice of A and C records. a.

Race Notice 1. Must record first 2. Must be a bona fide purchaser Messersmith v. Smith Patent (observable) - Notice the problem on the deed (wrong name spelled) Latent Not observable on the deed

Board of Education of Minneapolis v. Hughes (677) Defendant bought a city lot in May 1906. Defendant did not fill in the grantee's name on the deed until shortly before it was recorded on December 16, 1910. In April 1909, real estate dealers paid the same grantor for a quitclaim deed to the same lot. They did not record their deed until December 21, 1910. However, they delivered a warranty deed to plaintiff, who recorded that deed in January 1910. The trial court ruled in plaintiff's favor in its action to determine the adverse claims. On appeal, the court reversed and remanded for a new trial. When he received the deed from the seller, defendant had implied authority to insert his name as grantee, in the absence of evidence showing the want of such authority. Defendant's deed then became operative. When defendant's deed was recorded, there was a record of a deed from the real estate dealers to plaintiff, but no record showing that the real estate dealers had any title to convey. This was not notice to defendant of the prior unrecorded

conveyance by his grantor. He was a subsequent purchaser in good faith for a valuable consideration, and he was thus protected by the recording of his deed before the prior deed was recorded. OUTCOME: The court reversed a judgment in favor of plaintiff in an action against defendant to determine adverse claims to a city lot. The case was remanded for a new trial. Guilette v. Daly Dry Wall (680) Plaintiffs sued defendant to enjoin it from constructing a multifamily apartment building on its lot. The trial court issued the injunction. The issue on appeal was whether defendant was bound by a restriction contained in deeds to its neighbors from a common grantor, when it took without knowledge of the restrictions and under a deed that did not mention them. Defendant argued that it only had the duty to ascertain whether there were any restrictions in former deeds in its chain of title. The appellate court held that the deed conveyed not only the described lot but also an interest in the remaining land. The deed was properly recorded, and as purchaser of part of the restricted land, defendant took subject to the restrictions. In addition, the deed could be found through the use of an index system that listed the names of grantors and grantees. OUTCOME: Affirmed decree enforcing restrictions contained in deeds to defendant's neighbors from a common grantor because defendant, as purchaser of part of restricted land, took subject to the restrictions; properly recorded deed could be found through use of index system.

Problem 8 (680) Problem 9 (683) -

Look at Question 3 on 669********Mortgages Blackacre originally =50,000 and then has biowaste and sold for 20,000. O borrowed from A $10,000 a d received a mortgage form O. A does not record. O then borrows $14,000 from B and new of the loan to A. B records. O then borrows 5,000 from C and gives C a mortgage on Blackacre. C has NO notice of As Mortgages and C records.

C gets 5000, B gets 10,000 and A gets 5,000 Based on the theory of expectation

Circle of Priority***** A trumps B (Because B had actual knowledge of A), B trumps C (because B recorded), BUT C trumps A. -A created the problem by not recording. If A recorded then A would have priority over B and C.

Problems on 685 ******Have to have chain of title in notice to find it 2a. A conveys to B, who does not record (wild deed-dont know the chain of title) O conveys to A, who does not record B conveys to C, who records A conveys to D, who records (D is shown the Deed from O to A) o D should have recorded first to win O conveys to E, who records o B should win under the Doctrine of estoppel but its an old rule o Under Notice BFP without notice of the prior transaction E wins in a notice jurisdiction because there is no chain of title from O to A and A did not record so E did not have notice. B did not record when A conveyed to B so E has no notice of the wild deed How could E have notice if it wasnt recorded?

If between D,A, and O (no E) then D would win. but he didnt record O to A, and either did A. C was conveyed by B, but b is a wild deed so C coldnt record anything prior to his conveyance bc it was a wild deed from A to B so if it says O-A first then A-B and then B-C and C records before D THEN C would win? because A-B wouldnt be a wild deed in this case? yeah bc A conveyed land he didnt own so there is no title to pass bc A didnt own anything

Race-Notice ***

If the wild deed does not give notice then Is E on notice of any prior conveyance? *** C does not win because it is a WILD DEED and JOSH needs to know the proper chain of title NOT C. C only needs to not have actual notice.

Question 2b (685) Notice Jurisdiction who is the last person to purchase the property without prior knowledge of the prior conveyance Recording gives notice so no one else can trump you You dont have to record but you leave the door open D wins here but if D doesnt record and G purchases the property then G should win ******** ********************* O-A (does not record) O-B (B knows of deed from O-A) O-C, who does not record B-D, who does not record (D is shown the deed from O-B) o D wins because there is proper chain of title. D sees the deed from O to B o C didnt record or could have won. YOU MUST LOOK AT THE LAST CONVEYANCE which is B-D. RACE NOTICE JURISDICITON o A wins because he is the first to record Part 2 o If after D records, A conveys to E, who promptly recors, who prevails in notice? D wins in both jurisdiction

Chapter 7 (519)- look at real estate transactions Purchase Money Mort Where the seller is going to finance the purchase and take cash One way to do the financing

Buyers Broke. Who is true Client? Has principle duty to the OWNER of the property Tells list broker so seller knows what they can get out of the person

List Broker Type of Listings*** Open List (538) least protective listing that a broker can secure, because the seller retains the right to sell the property herself otr use a different broker without paying the open listing broker a commission

Exclusive-Agency Listing Permits only ONE BROKER, the exclusive agent, to tsell the property for a specified period of time. The exclusive agent earns a commission for sale of the property if she secured a buyer, or even if a separate broker secures a buyer.

Exclusive Right to Sell Listing MOST PROTECTIVE listnig that a broker can secure. The owner maust pay that broker if ANY buyer purchases the property during the specified duration of the listing, no matter who found the purchaser. Dont have to compete with other brokers during the period of exclusive listing. Also may appeal to owners, because an owner can avoid paying the exclusive agent a commission if the owner directly sells the property herself.

Questions 2 (546)*****

Tearing up a deed does not transfer the property. THE CONVEYANCE IS MADE THROUGH A DEED. NOT the intent or tearing a deed.

Executed Deed*********Language for test Execution of the deed is the delivery and only way of delivery.

Marketable Title*****EXAMMMM!!!! An implied condition of a K of sale of land is that the seller must convey to the buyer a marketable title If the seller cant convey a marketable title, the buyer is entitled to RESCIND the K.

Marketable Title (547)- Everybody wants MT o A title not subject to such reasonable doubt as would create just apprehension of its validity in the mind of a reasonable, prudent, and intelligent person, one which such persons, guided by competent legal advice, would be willing to take and for which they would be willing to pay fair value.

Inheritance (553) Equitable conversion has been applied in situations when one of the parties to a K for sale of land dies and the issue arises whether the decedents interest is real property or personal property. Equitable conversion executes the K o The buyer is now the owner in equity o The owner is ENTITLED to payment for the property EX: O, Owner of blackacre, contracts to sell to A for $10,000. Before closing, O dies intestate. By the applicable intesatacy statute, B succeeds to Os real property and C scueeds to Os personal property. Under equitable conversion, C is entitle to the $10,000 when it is paid.

Doctrine Of Equitable Conversion Doctinre Of misrepresentation The Duty to disclose Defects

The Land Transaction The lender transfers title to X by giving them a deed, they sign a promissory note for the loan, they execute the mortgage or deed of trust in favor of the lender and pay fees for the services provided by their lawyer, the title company, and any other parties involved in the transaction

Real Estate Brokers Often hired by sellers of property to attract prospective buyers and facilitate real estate transactions. Brokers do this in numbers of ways: o 1. Marketing a sellers property o 2. Listing residential properties on multiple listing service (MLS) o 3. Negotiating purchase agreements o 4. Serving as intermediary between buyers and sellers o 5. participating in physical inspections of the property o 6. Assisting in arranging financing Usually receive a commission from 6-8 percent of the actual purchase price as compensation for their services o Traditionally- only sellers hired brokers o Modern- increase in buyers hiring brokers o *** a real estate broker is fiduciary he is required to exercise fidelity and good faith, and cannot put himself in a position antagonistic to his principals interest, by fraudulent conduct, acting adversely to his clients interests, or by failing to communicate information he may possess or acquire which is or may be material to his principals advantage 1. Traditional Approach o the seller empowers the broker to serve as the sellers agent in selling the property 2. Modern Approach o Selling brokers (533)- usually the buyer initiates the relationship have a more indirect relationship with the seller, and receive their compensation by splitting the listings brokers commission Often work with prospective buyers over long periods of time and develop personal relationships with them.

Restatement 8.01 - Brokers actions cannot diverge from their clients interest or expectations Licari (p) v. Blackwelder (broker) (530)

P (Licari) wins in breach of the defendants duty as real estate brokers to find a buyer for plaintiffs property at the best possible price, and for acting improperly in dealing for themselves to the financial loss of the plaintiffs Brokers screwed them and sold the property originally for $115,000 and turned around and sold it for $160,000 Brokers withheld information of other negotiations with potential buyers for a higher purchase price; also the defendants misled the plaintiffs into selling the property to the defendants at a lower price.

Dual Agents (535) When the buyer and seller in a same transaction hire the same person Owes both the buyer and the seller the same duty of loyalty and good faith. Can be risky for bother parties because the broker cannot be exclusively loyal to any one party. Many states allow however, the dual agent must reveal her dual agency to both parties early on and that both parties approve of the arrangement

Disclosure Requirements (535) The law in some states requires brokers to disclose to buyers, in writing that they are the sellers agent and not the buyers agent The purpose of the disclosure requirement is to make sure that buyers understand where their broker represents them, or represents the seller. It may also have the effect of encouraging buyers to use buyers brokers In many states, brokers must also disclose to the buyer any material defects known by the broker and unknown to the buyer

Multiple Listing Services, price fixing, and antitrust issues (MLS)- 536 a facility of cooperation that allows brokers and appraisers to share residential listing information, for a fee, on one main database Only for residential listing (no commercial) Only brokers and appraisers can list on the MLS, which gives rise to antirust concerns

532 Doctrine of Equity The Contract of Sale (541) Warranty Deed Warranties of Title (585)

Know through page 598 ***the last 25 pages wont be a principle focus but could be a question or 2 from Frimberger and lomeyer