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Home , Bailment, Concurrent estate, Estate in land, Possession (law), Right of possession, Treasure trove

Personal I. Terminology A. is all property not classified as . i. Tangible (e.g. car or books) 1. Consumable 2. Non-consumable ii. Intangible (e.g. stocks or bonds) B. exists if a person has (all elements) i. Actual dominion and control over property ii. intent to assume dominion over it iii. With or without a claim of C. exists if person has ownership with right to possession and transfer.

II. Right to Exclude An owner of property has the right to exclude others A. Exceptions i. Denying the rights of individuals who are parties with owner in consensual transactions relating to the use of the owner’s property State v Shack ii. , private or public B. for i. Real Property DO NOT need damages 1. Intentional trespass a. Punitive damages may be supported only by nominal damages Jacque v Steenberg Homes, Inc. ii. Chattels MUST have damages to recover 1. Computer network Must have interference with the normal operation of the computer network, even if the owner says you can’t use it, sender is not liable. Intel Corporation v Hamidi

III. Acquisition of Title by Judgment A. Replevin is an action to recover the chattel itself and exists if PL i. Has title or right to possession ii. Property is unlawfully detained iii. DF wrongfully holds possession

B. Trespass Trespass is an action to recover damages for dispossession

C. Trover is an action to recover the value of the chattel along with damages for dispossession i. Anyone in actual possession can sue ii. Tortfeasor AND purchasers (even bona fide) can be held liable iii. Value determined as of the date of iv. Title vests to converter 1. Relates back to the date of conversion v. Until the judgment is satisfied, the owner may sue in replevin Rule of Capture

IV. Rule of Capture The first person to take possession of a thing owns it A. Wild Animals, Natural Gas i. To acquire title you must acquire (any element) 1. Possession Physically capture / possess Pierson v Post 2. Constructive Possession Trap, with door shut Young v Hitchens a. Un-severed gas beneath the surface of property is in constructive possession Anderson v Beech Aircraft Corp. 3. Pursue and mortally wound Mortally wound animal, without leaving pursuit, such that actual possession is inevitable, a vested property right in the animal accrues that cannot be divested by another’s act in intervening and killing the animal Pierson v Post a. Mere pursuit does NOT constitute dominion and control 4. Custom Followed a. in certain trades (e.g. whaling), customs are adhered to (e.g. first to harpoon)

ii. You can lose title if (any element) 1. Escape Escaping and resuming natural liberty into the a. Exceptions i. Habit of Return If an animal escapes, but periodically returns to the owner’s home ii. Escapes, but pursued to recapture If an animal escapes, but is still pursued by the owner iii. Marked Animals Modernly, courts allow title to be retained if animal is marked and the owner is exercising effort to recapture it. iii. Interference by 1. noncompetitor Animal title goes to competitor; noncompetitor liable a. A man is allowed to sell and dispose of his land for his , and thus, allowed to recover damages based on interference with the intent of his property. Keeble v Hickeringill 2. competitor Rule of capture applies a. Exception – Pre-possessory interest Where an actor undertakes significant but incomplete steps to achieve possession of a piece of abandoned property and the effort is interrupted by the unlawful acts of others, the actor has a legally cognizable pre-possessory interest in the property. That pre-possessory interest constitutes a qualified right to possession which can support a cause of action for conversion. Popov v Hayashi iv. Role of Property 1. Animals or un-severed gas on a person’s property belongs to the landowner a. EXCEPTION Severed gas is treated with the Rule of Capture Anderson v Beech Aircraft Corp.

Acquisition by Find

V. Acquisition by Find A. of Finders A finder has title against everyone but the true owner IF he (all elements) i. Actually discovered ii. Intent to take possession iii. Regardless of 1. Wrongful possession Even a possessor who obtained possession wrongfully retains rights 2. Lost by possessor A possessor who loses property after acquiring it may recover from subsequent possessors Armory v Delamirie

A finder becomes a converter of the thing belonging to the true owner IF (any element) i. Attempts to use or transfer i. Finder cannot transfer rights greater than he/she has

B. Lost, Mislaid, Abandoned, Trove To determine if property is lost, mislaid, abandoned, or , judging from place where found, would a conclude that owner had parted with possession in such a manner. i. Lost Property 1. Defined Property is lost IF owner parted with it (all elements) a. Involuntarily b. Unintentionally c. Without knowing where it may be found 2. Right of possession to the finder against all but owner IF (all elements) a. NOT a i. A trespasser-finder will not be given possessory rights. They will be given to the landowner. b. NOT found in scope of employment i. If the employee found property by virtue of an act specifically directed by the employer, the employer acquires possessory rights. South Water Co. v Sharman c. NOT a guest or licensee d. Land is (any element) i. Publicly owned ii. Privately owned (any element) o Open to the public a. Unless the property of another has been reduced to the custody or protection of the property owner Bridges v Hawkesworth o NOT open to the public, but owner NOT in possession a. A person does not necessarily possess objects lying unattached to property of which he is the owner. Where an object has never been reduced to possession by the owner of the property upon which it is found, the finder of the lost article obtains title superior to all except the true owner. Hannah v Peel e. Item is NOT buried i. Items buried belong to the landowner due to constructive possession

ii. Mislaid Property 1. Defined Property is mislaid IF owner parted with it (all elements) a. Voluntarily b. Intentionally c. Without knowing where it may be found (Forgotten) 2. Right of possession to the landowner against all but owner a. Landowner held as bailee to protect true owner McAvoy v Medina (wallet left in barber shop) Benjamin v Lindner Aviation Inc. ($18,000 found in wing of airplane) Criticism: 1) Penalize finder for disclosing found property; less chance for true owner 2) Presupposes that owners of mislaid property, but not owners of lost property, will go through a mental re-enactment to ascertain where their lost property might be 3) Require the court to suppose lost or mislaid from intentions of owner

iii. Abandoned Property 1. Defined Property is abandoned IF owner parted with it (all elements) a. Voluntarily b. Intentionally c. With intention to relinquish all rights, title, and interest in property 2. Right of possession to the finder against universe

iv. Treasure Trove 1. Defined Property is treasure trove IF property is (all elements) a. Concealed for a length of time - the owner is probably dead/undiscoverable b. Contains element of antiquity 2. Right of possession to a. Traditionally i. the finder against all but owner Regardless if trespasser b. Modernly i. Apply rules of lost property  to landowner since mostly buried ii. Discourage trespass

C. Duties of Possessors A finder who acquires possession of the property has a duty to (all elements) i. Bailee As a quasi-bailee, the finder has a right to all except the owner and can even sue to regain possession. ii. Find owner Reasonable means of discovering the true owner, if at hand, should be taken iii. Keep property with due care

D. Maritime Law i. Salvage Law Original owner of sunken ship and its cargo retains ownership, but must pay hefty salvage fee to finder. 1. Exceptions a. Previous owner abandons property (any element) i. With clear and convincing ii. Ancient and long lost infers abandonment, unless previous owner appears Columbus-America Discovery Group v Atlantic Mutual Insurance Company b. Abandoned shipwreck Act of 1987 The law of salvage and finds does not apply to covered by the act, which lays claims to many abandoned shipwrecks in submerged waters of the US and transfers title to the states in whose waters they are found.

Bailments

VI. A bailment is the relationship created when possession of a chattel is transferred from one person (the bailor) to another (the bailee) for a limited purpose. A. Bailment Creation A bailment is created when (all elements) i. Physical Possession by bailee 1. The bailee must have physical control of the chattel. ii. Intent to possess by bailee 1. The bailee must have intent to exercise physical control iii. Knowledge of possession by bailee 1. The bailee must know he has possession of a chattel belonging to another 2. Property concealed in bailed property A bailment does NOT exist with respect to something concealed within bailed property, if the bailee lacks knowledge of its existence. iv. by the bailee 1. A delivery without acceptance by the bailee will not create a bailment 2. Either express or implied agreement 3. Mere custody of a chattel is not sufficient in law to constitute possession.

B. Bailee’s Duties i. Exercise of due care A bailee must exercise due care of the bailed goods, BUT is not an insurer of their safety 1. For sole benefit of bailor a. Only slight diligence is required and liability upon gross . b. Bailee entitled to no compensation 2. For sole benefit of bailee a. Great diligence is required and liability upon slight negligence. b. Bailee entitled to no compensation 3. Mutual benefit a. Ordinary due care is required. b. Bailee entitled to agreed upon compensation or the reasonable value of such services 4. Exception – Contractual provisions Contractual provisions may prescribe the bailee’s liability. a. Professional bailee Professional bailee may NOT exempt out of liability created by own negligence, BUT may limit liability IF the bailor (all elements) i. Knows or should know of the limitation o posted signs does NOT constitute a a. Unless there exists proof that the bailor read or should have read, considering its size and location, the sign. o Claim check does NOT constitute a contract ii. to it b. Ordinary bailee i. May exempt out of liability created by own negligence

ii. Burden of proof for negligence The bailee has the burden to prove that the loss, etc. was caused despite exercise of due care.

iii. Liability to third parties The bailee has exclusive possession and is exclusively liable to harm due to use of the bailed item.

iv. Duty to redeliver The bailee must redeliver or account for the bailed item in its original or agreed-upon alter form upon termination of the bailment. 1. Improper delivery of bailed chattel to 3rd persons a. Exception – indispensable instrument When the bailee, without notice or knowledge that the 3rd person was not the original bailor, they are not absolutely liable upon delivery to the 3rd person. i. e.g. 3rd person presents lost parking garage ticket 2. Excuses for nondelivery a. During the life of the bailment, the bailor sold the bailed item to the bailee or a 3rd party and gave notice to the bailee b. A 3rd party claims the bailed item and has title paramount to the bailor c. Judicial process takes the bailed item from the bailee

v. Absolute liability The bailee is absolutely liable for loss or damage without regard to due care IF (any element) 1. Departure from terms of bailment By departing from the terms of bailment, a bailee is absolutely liable as a converter.

2. Breach of agreement Any breach of an express or implied agreement to insure the goods against hazards, results in absolute liability for failure to do so.

3. Improper delivery of bailed chattel to 3rd persons a. Exception – indispensable instrument When the bailee, without notice or knowledge that the 3rd person was not the original bailor, they are not absolutely liable upon delivery to the 3rd person. i. e.g. 3rd person presents lost parking garage ticket

C. Bailee’s Rights i. Right of Possession against universe Right of possession and control of the chattel, for the term of the bailment, against all the world, including the bailor 1. Right of action a. Against Bailor If the bailor wrongfully takes the bailed item, the bailee can maintain an action for conversion. b. Against 3rd parties The bailee may maintain a trover, trespass, or replevin action against 3rd parties, and even the bailor, interfering with possession. 2. Bailor’s creditor has no right to attachment 3. Employee cannot be bailee of employer’s goods As an employee is always subject to his employer, he cannot be a bailee of his employer’s goods. ii. No use of Bailed Goods Unless an express or implied agreement specifies, the bailee has no right to use the subject matter of the bailment. 1. Agreed Use a. Intentional, unauthorized use i. If results in loss or damage  absolute liability b. Unintentional, unauthorized use i. If results in loss or damage  negligence liability 2. Incidental Use Bailee is under a duty to not make any use, except as is incidental to the performance of services.

D. Bailor’s Rights i. Actions against bailee Wrongful acts of the bailee which result in the bailed goods being lost or damaged are subject to action by the bailor. 1. Damages for breach of contract 2. Damages for action – damage to property 3. Conversion (trover) action 4. Replevin

ii. Actions against 3rd parties 1. Bailment of definite duration a. No action for conversion or replevin i. Don’t have possession or right to possession b. Action for trespass on the case 2. Terminable Bailment A bailor may treat the bailment as terminated IF (any element) a. gratuitous bailment b. bailment terminable at will c. bailee’s unauthorized act And then can bring action of conversion or replevin against 3rd party 3. Damage to future right of possession A bailor may maintain an action for injury to bailed property for damages to reversionary interest. a. 3rd party must have been negligent b. Bailee’s negligence immaterial

E. Compensation and Reimbursement i. Ordinary expenses  bailee ii. Extraordinary expenses  bailor of Chattels VII. Adverse Possession Title to personal property by adverse possession results from the running of a . A. Requirements The statute of limitations does not run unless the possession relied on is (all elements) i. Actual and exclusive 1. All or part of the land claimed must be taken to the exclusion of others ii. Open and Notorious 1. The owner must be given the opportunity to see someone is claiming land 2. Stolen property is presumed to be held in secrecy. 3. Finding of lost or mislaid property is presumed to be held openly. iii. Hostile and Adverse 1. There must be some act of dominion or use inconsistent with the absolute right of property in the owner. 2. NOT by consent 3. NOT in subordinate rights to the true owner iv. Claim of right Depending on the state… 1. Objective standard a. Possessor must act as owner, as opposed to transient trespasser 2. Good faith standard a. Good faith, but mistaken belief of ownership 3. Aggressive trespasser / Bad faith standard a. Possessor must intentionally act to acquire property v. Continuous 1. Possession must be continuous for the statutory period 2. Seasonal or intermittent use may be sufficient if such use would be made by an ordinary owner of such property 3. Owner’s intrusion a. Requires the possessor to start over 4. 3rd party intrusion a. If the adverse possessor regains possession, does not have to start over. vi. For the statutory period 1. General Rule A cause of action accrues when the owner ascertains, or by due diligence could ascertain, actionable damages 2. Discovery Rule A cause of action accrues when the owner knew or should have discovered that she suffered an injury or impingement and that it was caused by the act of another. Autocephalous Greek-Orthodox Church of Cyprus v Goldberg & Feldman Fine Arts Those who wish to purchase chattel should go through the means to protect themselves, such as background check or authorities a. Exception - Doctrine of fraudulent concealment A adverse possessor who has by deceit or prevented a potential owner from learning of a cause of action cannot take advantage of his wrongdoing by raising the statute of limitations as a bar to the owner’s action 3. Demand and Refusal Rule A cause of action accrues when the owner makes demand for return of the chattel and the person in possession of the chattel refuses to return it. a. Gives the owner greater protection b. Places the burden of investigating chattel on purchaser Solomon R. Guggenheim Foundation v Lubell Right of Publicity, Creative Works and Human Tissue

VIII. Right of Publicity Protects a person’s interest in commercial exploitation of name, likeness, and identity. A. Elements i. Use of identity ii. Appropriation of name, likeness, or identity for advantage iii. Lack of consent iv. Injury B. An actor or actress does not lose the right to control the commercial exploitation of his or her likeness by portraying a fictional character. i. The right of publicity includes anything that brings the celebrity to mind Wendt v Host International (cheers characters) C. Broadcast of film of entire act without consent extend the bounds of right of news reporting given by 1st and 14th amendments Zachini v Scripps-Howard Broadcasting Co. (human cannonball) D. Exceptions i. News reporting ii. Unauthorized biography iii. Entertainment parody or satire IX. Rights in Writings, Recordings, Product Designs A. Copyright Authors and inventors have exclusive rights i. Designed to protect expression, NOT utility ii. Author’s ownership is in copyright, NOT work itself iii. Includes derivative works iv. No publication required 1. Before publication – state common law protection 2. After publication – federal statutory copyright protection v. Exception 1. Fair use doctrine a. Grants non-copyright holders the right to take someone’s expression and repeat it (even without transformation) as long as use it for fair use, such as i. Criticism ii. Comment iii. News / reporting iv. Teaching v. Scholarship vi. Research b. Consider i. Purpose and character of work ii. Nature of copyrighted work iii. Amount and substantiality of portion used iv. Effect on market value of original 2. Functional aspects of design 3. Useful Articles 4. Ideas / facts a. Compilations of facts MAY be copyrightable i. Something other than alphabetical phone book Feist Publications Inc v Rural Telephone Service Co. NOT to reward labor of authors b. To be copyrightable, there must be i. Collection and assembly of pre-existing material, facts, or data ii. Selection, coordination, or arrangement of materials iii. Creation, by virtue of the particular selection, coordination, or arrangement, of an ‘original’ work of authorship c. To be infringement, there must be i. Ownership of a valid copyright ii. Copying of constituent elements of the work that are original vi. Rationale 1. Promotion of learning 2. Protection of public domain 3. Granting of exclusive right to author B. Patent i. Designed to protect utility – functionality is original (useful invention) C. Patent vs. Copyright i. Copyright 1. lifetime of author + 70 years 2. Registration – for Customs service to catch and stop knockoffs 3. Federal

X. Trademark Trademark is a word, phrase, symbol or design, or a combination of words, phrases, symbols or designs, that identifies and distinguishes the source of the goods of one party from those of others. Trademarks prevent people from using names, symbols, devices, etc. that are likely to cause confusion as to the source of goods or deceiving others. A. Rationale Designed to protect i. Consumers 1. lowers time it takes to find and distinguish goods’ quality ii. Producers 1. allows for a product to gain secondary meaning 2. protects from disadvantage 3. encourages producers to keep making quality products 4. protect investments in quality B. Color alone, sometimes, may meet the legal requirements for trademark i. Secondary meaning (symbol) Qualitex Co. v Jacobson Products Co. C. Can last forever as long as using it D. Dilution law – protects famous trademarks i. Requires proof of actual damages of blurring or tarnishing (dilute reputation) E. Can't acquire by adverse possession against a person who has no interest in copyright

F. Trade dress i. Made something that looks so much like ours that it is likely to cause confusion with our product – can’t protect functionality unless have patent ii. Burden is on PL to prove that the trademark was not functional – must show merely decorative iii. Can’t extend patent by trade dress

XI. Rights in Human Tissue A. A physician who is seeking a patient’s consent for a medical procedure must, in order to satisfy his duty and to obtain the patient’s informed consent, disclose personal interests unrelated to the patient’s health, whether research or economic, that may affect his medical judgment. i. Protection of a competent patient’s rights to make autonomous medical decisions B. The use of excised human cells in medical research does not amount to a conversion. i. Don’t threaten liability on innocent parties engaging in socially useful activities. C. Moore v Regents of the University of CA D. Newman v Sathyavaglswaran E. Property rights in kin’s corneas, but none in own spleen Real Property Estates in Land

XII. Terminology A. – The type of right or title that a person has in land or real property. B. Freehold – Legal title or right to hold in possession C. Nonfreehold - Merely right to possession D. Words of Limitation – describe what type of estate is being created E. Words of Purchase – identify grantees of estate F. Heir – any person who survives the decedent and are designated by intestate succession i. Issue – lineal descendents ii. Ascendants – parents, grandparents iii. Collaterals – all persons related by blood to decedent who are neither descendents or ancestors iv. – if person dies intestate with no heirs, goes to state

XIII. Present Possessory Estates A. Absolute i. Defined A fee simple absolute is a freehold that is (all elements) 1. Alienable (Fully transferable) 2. Descendible / Devisable (Fully inheritable) 3. Perpetual 4. NOT subject to a condition ii. Transfer of Interest A transfer from O to A in fee simple absolute: “to A and his heirs”

B. Most states have abolished this estate and conclude it transfers a fee simple i. Defined A fee tail is a freehold estate in land that is (all elements) 1. Alienable (Fully transferable) 2. Limited inheritability to lineal descendents ii. Transfer of Interest A transfer from O to A in fee tail: “to A and his heirs of the body”

C. Estate for Years () i. Defined An estate for years is nonfreehold estate that is (all elements) 1. Limited transferable 2. Not inheritable The right of possession reverts to the owner of the fee simple on termination. ii. Transfer of Interest

D. i. Defined A life estate is a freehold estate in land that is (all elements) 1. Limited transferable – alienable, but ends at death of life tenant 2. Not inheritable – NOT devisable and NOT descendible ii. Transfer of Interest iii. Duty to refrain from The tenant has a duty to maintain the property in a reasonable state of repair when necessary to preserve the property’s value for the holders of future interests following it. 1. Exception – extraordinary repairs

E. Defeasible Fee i. Defined A Defeasible fee is an estate in land that is (all elements) 1. Subject to a condition 2. Potentially infinite duration

ii. Fee Simple Determinable 1. Defined An estate that is automatically terminated and vested back to the grantor when a condition occurs a. Possibility of Reverter in grantor The grantor retains a as a possibility of reverter i. When condition occurs, possessor becomes adverse possessor ii. Must be expressly retained Then intent of the parties must be shown in a language sufficient to qualify the estate conveyed and must provide that in the case of a breach, the estate will be defeated. Mere expression for the purpose for which the property is to be used without provision for forfeiture or reentry is insufficient to create an estate on a condition and an unqualified fee will pass. Station Associates Inc v Dare iii. Transferability Most jurisdictions allow the possibility of reverted to be transferred o inter vivos o devised by will o to the owner’s heirs if dies intestate iv. NOT subject to rule against perpetuities 2. Transfer of Interest “so long as” or “until”

iii. Fee Simple on a Condition Subsequent 1. Defined An estate that is terminated, upon reentry of the grantor, back to the grantor if a condition occurs a. Right of reentry in grantor Grantor retains a right of reentry to reenter the land and take back the estate i. Must be expressly retained Right of reentry must be expressly reserved in the grantor The general rule of interpreting the manifest intent of the parties shall not apply to a condition subsequent due to their disfavor for causing forfeiture of land. Red Hill Outing Club v Hammond ii. Brining evidence for breach of condition subsequent A grantor may not offer evidence of a breach of condition subsequent that occurred after the grantor brought the action to reentry, as the grantor is deemed to have taken legal possession of the property. Red Hill Outing Club v Hammond iii. Transferability o NOT transferable inter vivos o Devisable by will o To owner’s heirs if dies intestate iv. Waiver A grantor may waive right, but inaction by itself is not waiver v. NOT subject to Rule against perpetuities

2. Transfer of Interest “but if”

iv. Fee simple on Executory Limitation 1. Defined An estate that is terminated automatically and vests to a third party if a condition occurs a. Executory Interest The third party retains a future interest as an executory interest 2. Transfer of Interest “so long as” or “but if”  names a third party 3. Subject to the Rules against perpetuities a. Any time a person creates a fee simple on executory limitation involving a condition that can be violated at any time in the future, the executory interest associated with it is void and the condition stated is no longer effective. i. Solve by tying the condition to A for example o “to A and his heirs, but if A [condition] to B” INSTEAD of “to A and his heirs, but if [condition] to B” a. Only A must comply with the condition o A fee simple on executory limitation involving a condition that is tied to the lifetime of a person in existence at the effective date of transfer can never violate the RAP.

XIV. Future Interests A future interest is an estate that does not entitle the owner thereof to possession immediately, but will or may give the owner possession in the future. A future interest is a present, legally protected right in property. A. Created in the Grantor i. Possibility of Reverter Exists in a grantor by creating a fee simple determinable ii. Right of Reentry Exists in a grantor by creating a fee simple on a condition subsequent iii. Reversions A is a future interest left in the grantor, which arises by , as the remnant of the grantor’s estate which was not transferred., e.g. life estates 1. Vested – Even if it is uncertain whether or not it will ever become possessory interest 2. Transferable 3. Devisable by will 4. Descendible by 5. Law of waste – holder of reversion may sue possessor/3rd party for waste

B. Created in the Grantee i. Remainders A is a future interest created in a transferee that is capable of becoming a present interest upon the natural termination of the preceding estate created in the same disposition. 1. Requirements a. Created simultaneously with & in same document as a prior possessory interest b. Prior interest must be immediately prior c. Prior interest must end naturally 2. Vested a. A present right to a future interest b. Indefeasibly Vested A person (or that person’s successor) is certain to have a present interest of property at some time in the future. c. Vested remainders subject to partial divestment Can be subject to a partial divestment / subject to open upon the expansion of the class of remainderman i. Example – “to A for life, remainder to A’s children” where A has a child B. B has a vested remainder subject to sharing it upon the birth of subsequent children d. Vested remainders subject to complete divestment May also be subject to complete divestment by a conditional subsequent e. Heir of the holder of vested remainder could inherit/by will/conveyance f. Fully Transferable g. Devisable by will h. Descendible by inheritance 3. Contingent A person’s future interest is subject to a condition that must be satisfied before vesting can occur. a. Unborn person b. Unascertained persons c. Subject to condition precedent d. Transferable inter vivos e. Subject to rule against perpetuities “remainder in”,”to”,”then to” ii. Executory Interest Any future interest in a transferee that is not capable of taking on the natural termination of the preceding life estate  divests the interest of another. 1. Requirements (any element) a. Follows a gap in time after the natural expiration of a prior estate b. Unnaturally cuts short a prior estate 2. Shifting executory interest Cuts short, on some stated event, the former estate in possession a. “To A for life, then to B and his heirs, but if B marries C, then to D and her heirs” B has vested remainder subject to complete divestment and D has shifting executory interest 3. Springing executory interest Arises at some point after the expiration of a possessory estate 4. Transferable Inter vivos 5. Devisable and descendible a. UNLESS the holder’s survival is a condition to the interest’s taking 6. Subject to rule against perpetuities a. Any time a person creates a fee simple on executory limitation involving a condition that can be violated at any time in the future, the executory interest associated with it is void and the condition stated is no longer effective. i. Solve by tying the condition to A for example o “to A and his heirs, but if A [condition] to B” INSTEAD of “to A and his heirs, but if [condition] to B” a. Only A must comply with the condition b. A fee simple on executory limitation involving a condition that is tied to the lifetime of a person in existence at the effective date of transfer can never violate the RAP.

C. Compensation An owner of a future interest is not entitled to any compensation unless the condition has been breached as of the date of valuation, because the possibility of reversion too remote and speculative to be valued i. Exception – If reversion would have been imminent City of Palm Springs v Living Desert Reserve If the condition imminent, might give holder of future interest 100%

Freehold Estates Future Interest Grantor 3rd Person Fee Simple Absolute “to A” None None “to A and her heirs” Fee Simple Determinable “to A so long as” Possibility of Reverter Executory Interest “while…” “during…” “unless…” “until…” Fee Simple Subject to a “to A provided that..” Right of reentry Executory Interest Condition Subsequent “on condition…” “but if…” Fee Tail “to A and the heirs of his Reversion Remainder body…” Life Estate “to A for life” Reversion Remainder Executory Interest

Non-Freehold Estates Future Interest Term for Years “to A for _____ years” Reversion Remainder

XV. Rule Against Restraints on Alienation A. Types of restraints i. Disabling restraint – any attempted transfer is ineffective ii. Forfeiture restraint – any attempted transfer is a forfeiture of the interest iii. Promissory restraint – any attempted transfer breaches a

B. Rationale Restraints are disfavored because they i. Tend to discourage improvements in the land ii. Prevent the owner from making land available for its most valuable use iii. Keep the property off the market iv. Keep the owner’s creditors from reaching the land in satisfaction of debts

Any restriction on the transferability of a legal interest in property is void IF C. Disabling restraint

D. Absolute restraints on Fee simple i. Exception – Partial restraints MAY be upheld IF 1. restraint has a legitimate purpose 2. impact and duration are reasonably limited

E. Exceptions i. Right of First Refusal 1. The right to have the opportunity to purchase when it becomes available IF a. it is reasonable (by specifying fair market value, etc.) b. limited time for offer ii. Conditions designed to shift property ownership upon remarriage iii. Restrictions on transferability of leaseholds 1. A provision in a lease prohibiting the lessee’s or subletting of leasehold interest without the consent of the iv. Forfeiture and Promissory restraints on life estates 1. Little is lost by giving effect to the transferor’s intention to restrict the estate’s transferability because life estate is practically inalienable anyways (unlikely to pay for estate of uncertain duration) v. Forfeiture restraint on transferability of a future interest 1. During the period in which the interest is a future interests vi. Reasonable Restrictions in commercial transactions 1. IF part of bargained-for agreement, as opposed to donative transaction vii. Limited restraint 1. affordable housing that is for legitimate purpose and reasonable viii. Indirect restraint 1. restrict property for limited use, even if become unmarketable

XVI. Rule Against Perpetuities No Interest in property is valid unless it must vest, if at all, not later than 21 years after one or more lives in being at creation of the interest An interest is void if there is any possibility, however remote, that the interest may vest more than 21 years after some life in being at the creation of interest. Any interest, other than one in the , grantor, or transferor, is invalid when it MIGHT i. Vest or fail to vest as a remainder ii. Become possessory, or not, as an executory interest, at a time more distant than 21 years after a life in being at the effective date of the transferor’s instrument. The rule is concerned with the postponement of either vesting or coming into possession of future interests, and as such contingencies must be resolved within the perpetuity period, observed at the time of the initial creation of the interest. The option is void unless the instrument that created it expressly provides that it can only be exercised for a period that does not exceed 21 years from the date it was created, or that it cannot be exercised later than 21 years after the death of some named people. B. Step 1 - Applies to i. Legal interests 1. Contingent remainders 2. Vested remainders subject to open 3. Executory interests ii. Equitable interests 1. Interests that beneficiaries have in trusts (except charitable trusts) 2. Options to purchase Symphony Space v Pergola a. Unless i. reasonable time limit inferred ii. Tenant option to purchase leased premises during the lease term, no matter how long the term, until the option has been separated from the b. Grants absolute power to purchase at own whim c. Discourages property owner from investing in improvements d. Impedes owner’s ability to sell to 3rd party iii. Exemptions 1. One charity to another 2. Vested remainders 3. Reversions 4. Possibilities of reverter 5. Rights of reentry 6. Rights of first refusal Metropolitan Transp. Auth. V Brunken Realty Corp. iv. If there is no future interest involved, the time to be considered is the 21 years or whatnot C. Step 2 – Determine effective date of transfer At the point it becomes irrevocable i. Will / testamentary trust – effective at the death of the testator ii. – effective at the date of delivery iii. Inter vivos trust – effective when it is stated to be effective D. Step 2 – Pool of candidates of measuring lives The pool of candidates used for measuring of lives consists of those persons who are alive at the effective date of the instrument and (any element) i. Can affect the vesting or taking possession of the challenged interest 1. Those who can control the termination of the preceding estate 2. Those who will either make it happen or receive its benefits ii. Are affected with the transaction iii. Exclusions 1. Unreasonably large groups 2. Persons with the same impact on vesting or taking possession, if all of them cannot be reasonably ascertained within the perpetuities period 3. Persons whose lives have redundant impacts on the vesting or taking possession of the challenged interest E. Step 3 – Find from among all the measuring lives, a validating life If there exists one person for whom there exists no invalidating chain of possible events occurring after the effective date of the document, the interest is valid. i. Speculate on what might occur after the effective date of the transfer 1. What actually happens is irrelevant under common law

F. Rationale i. To limit control of title to real property by the dead hand of landowners reaching to future ii. Socially undesirable for property to be inalienable for unreasonable amount of time iii. Ensure productive use and development of property iv. The purpose of the rule was to limit the time that title to property could be suspended out of commerce because there was no owner who had title to the property and who could sell it or exercise other aspects of ownership.

G. Examples i. Executory Interest following Defeasible fee violates rule With no time within which it must

H. Statutory Reform i. Wait and see An interest is valid if it actually vests during the perpetuities period, regardless of why might have happened. Rejected in Symphony Space v Pergola Properties Adverse Possession of Real Property

XVII. Adverse Possession Title to personal property by adverse possession and by prescription results from the running of a statute of limitations. A. Requirements The statute of limitations does not run unless the possession relied on is (all elements) i. Actual and exclusive 1. All or part of the land claimed must be taken to the exclusion of others 2. Exceptions a. color of title i. Color of title exists IF (all elements) o Written instrument purports to pass title o But is ineffective because of defect or grantor lacks title ii. Can claim land by constructive possession via color of title IF o Can only claim extra land if not occupied by someone else o Only applies to parcel of land not subdivided ( that cover single parcel) b. Renter / Lease i. As long as have someone in possession for you, like a renter or lessee Lawrence v Town of Concord ii. Open and Notorious 1. The owner must be given the opportunity to see someone is claiming land 2. Underground uses a. Indirect evidence of underground uses supports open and notorious Foot v Bauman 3. Minor encroachments Mannillo v Gorski a. Minor encroachments are NOT open and notorious IF i. Intrusion is not clearly and self evidently apparent to the naked eye, but requires an onsite survey b. UNLESS the true owner has actual knowledge of the location of the boundary iii. Hostile and Adverse 1. There must be some act of dominion or use inconsistent with the absolute right of property in the owner. 2. Possession cannot become adverse against one who does not have an immediate and present right to possession 3. Intent of possessor is irrelevant, instead objective test to determine whether the possessor acted toward the land as if they owned it, without permission Nome 2000 v Fagerstrom 4. NOT by consent 5. NOT in subordinate rights to the true owner 6. Owner’s knowledge of ownership or in the adverse use is irrelevant 7. If possession starts permissively, must communicate hostility An adverse possessor has no burden to reveal his intentions to the owner absent a special relationship in which a repudiation of the earlier relationship is necessary to put the owner on notice that “he should take steps to protect his rights” Lawrence v Town of Concord a. Licensor-Licensee b. Landlord-Tenant 8. If grantor stays in possession – permission assumed 9. Co-tenants – Ouster required Sole possession or use by one co-tenant is NOT adverse, unless there is a clear repudiation of the co-tenancy iv. Claim of right Depending on the state… 1. Objective standard a. Possessor must act as owner, as opposed to transient trespasser 2. Good faith standard a. Good faith, but mistaken belief of ownership 3. Aggressive trespasser / Bad faith standard a. Possessor must intentionally act to acquire property v. Continuous and uninterrupted 1. Possession must be continuous for the statutory period 2. Seasonal or intermittent use may be sufficient if such use would be made by an ordinary owner of such property, regardless of substantial improvements or absolute exclusivity Nome 2000 v Fagerstrom 3. Owner’s intrusion a. Requires the possessor to start over 4. 3rd party intrusion a. If the adverse possessor regains possession, does not have to start over, but statute of limitations will be tolled against possessor for the time in which possessor did not have possession (see tolling) 5. Renter / Lease a. As long as have someone in possession for you, like a renter or lessee Lawrence v Town of Concord vi. For the statutory period The filing of suit by the true owner is not sufficient to stop the period from running, but they must pursue the suit until judgment and upon winning will relate back to the filing of suit. 1. Adverse possessor only runs against the title currently held when took possession a. The rights of the adverse user are measured by the title as held on the date of the user’s first entry. 2. Tacking Successive possessors of property may tack their respective periods of possession IF a. Voluntary transfer of property i. Oral transfers are valid (they are just revocable by transferor), but probably will want to comply with statute of ii. Transfers by the owner are irrelevant b. Consecutive periods 3. Tolling States may protect the property rights of an owner who is under a disability, via age of minority, imprisonment, or unsound mind, when the adverse possessor takes possession by either a. statute Statute of limitations is the longer of either the original 21 years or 10 years after the disability is removed b. statute Statute of limitations only begins when the disability is removed Applies to original adverse possessor and their successor’s, BUT two disabilities CANNOT be tacked, even if by the same person 4. Color of title a. Color of title exists IF (all elements) i. Written instrument purports to pass title ii. But is ineffective because of defect or grantor lacks title b. Period required to establish title by adverse possession is often shorter

B. Exceptions i. Government-owned land The statute of limitation does NOT run against government-owned land or anyone who acquires title from the state. Kiowa Creek Land & Co. v Nazarian 1. Government does not have the resources to monitor all of its land for signs of adverse claims ii. The adverse possessor acquires no more than the estate held by the person entitled to possession at the time the adverse possessor took possession or when the user began using the property. The statute of limitations does NOT run against a landlord UNTIL the future estate is vested. 1. If acquire from tenant, get an interest for the rest of the lease 2. If acquire from life estate, get an interest until that person dies 3. If enter before lease made, acquire against fee simple even if lease to someone else 4. If enter after lease made, acquire against the lessee and rights will be lost when lease ends Dieterich International Truck Sales, Inc. v J.s. & J. Services, Inc. Landlords are legally unable to bring an action for trespass because designed to protect possessory, not ownership, interest in of Waste - Landlord has right to sue for injury done to the inheritance

C. Relation Back Once the adverse possessor acquires title, title relates back to the entry and the owner’s actions for trespass, mesne profits, and ejectment are barred.

D. Rationale i. Penalizes owners who sleep on their rights ii. Rewards those who make productive use of the land

XVIII. Acquisition of Rights by Public Use Public beaches begin at the high tide mark and extend to the ocean. Any prescriptive easement by the public constitutes a takings that requires just compensation Public Use of Coastal Beaches

XIX. Acquisition by Conquest – By Force The discover of the Indian-occupied lands of the US vested absolute title in the discoverers, and rendered the Indian inhabitants themselves incapable of transferring absolute title to others. A. Purchasers from Indians are allowed to possess that title only with respect to the Indians Johnson and Graham’s Lessee v M’Intosh Transfer of Land XX. Statute of Frauds To be enforceable, a land contract must be A. In writing i. Description of the property ii. Parties identified iii. Price B. Signed by the party to be charged C. Exceptions i. Part performance ii. Estoppel

XXI. Marketable Title A. A title based in adverse possession can be a marketable title i. Outstanding claimants could not succeed were they in fact to assert the claim ii. No real likelihood that any claim will ever be asserted B. In an action for specific performance by a vendor, where the issue is marketability of title, the vendor is entitled to judgment if at the conclusion of the suit, the court holds the title to be marketable. C. The existence of an renders the title unmarketable when it is not mentioned in the sales contract i. Exception – if an easement is readily visible D. The existence of and public land use regulations generally do NOT render the title unmarketable, even if the regulations severely restrict or prevent development. i. BUT existing violations DO render unmarketable

XXII. Caveat Emptor (buyer beware) A. CA -- requires seller to disclose anything that might be material B. NC – may include everything that may be material, but mostly physical defects C. Exceptions i. Confidential or fiduciary relations between seller and buyer ii. Active concealment / misrepresentation iii. Partial disclosure iv. Hidden defects known to seller

XXIII. Deed A. Types i. General warranty 1. warrants title against defects arising both before and during time grantor was connected with land ii. Special warranty 1. warrants title against defects arising during time grantor was connected with land, NOT against defects arising before iii. Quitclaim 1. grantor warrants NOTHING

B. Delivery Delivery refers to the grantor’s intent i. Present operative effect 1. Title pass immediately 2. Irrevocably ii. Conditional delivery when 3rd party 1. Chandler v Chandler No evidence that had retained right to revoke or recall deed

XXIV. A. Title search process i. Grantor-Grantee Index 1. Indexed by name of grantor and grantee ii. Tract Index 1. Indexed by description of land conveyed 2. Block  lot B. Types of Notice i. Actual notice ii. Record notice iii. Inquiry notice – reasonable inspection of property C. Types of Acts i. Grace Period 1. Gives the prior grantee 15 days to record from time transferred 2. Protects only if prior purchaser doesn’t record within time ii. Notice 1. If have no notice at time of conveyance, win 2. If have notice, no protection – first in time iii. Race-Notice 1. If have no notice at time of conveyance AND record first, win 2. If have notice, no protection – first in time iv. Race 1. Regardless of notice, if record first, win D. Marketable Title Act i. Only have to go search records for past 30 years 1. reduces the cost of searching ii. Exceptions 1. 2. railroad rights of way 3. utility lines 4. conservation servitudes E. i. Protects against 1. things that show up in land records 2. unacknowledged or invalidly acknowledged deeds 3. forged deeds 4. marketable title 5. not landlocked ii. DO NOT protect against 1. zoning 2. building permits iii. A title insurance company may be found liable on a negligence claim if the act complained of was a direct result of duties voluntarily assumed by the insurer. Somerset Savings v Chicago Title Insurance Co. Concurrent Estates XXV. Types of Concurrent Estates Cotenants each own an undivided interest in the land. A. Tenancy in common i. Residual form (Default) ii. Anyone can own iii. Fully alienable independently 1. Can transfer independently inter vivos, descendible, devisable 2. No survivorship rights iv. Subject to claims of tenant’s creditors

B. Joint tenancy with right of survivorship i. Anyone can own ii. Limited alienable independently 1. Can transfer independently inter vivos but destroy joint tenancytenancy in common 2. NOT descendible or devisable  property remains with the survivor iii. Rationale 1. Cheap alternative to creating a will, without hassle of 2. Passes property free of any debts created by the deceased joint tenant. iv. Creation 1. 4 Unities a. Time – interests vested at the same time b. Title – interests acquired by the same instrument c. Interest – interests of the same type and duration d. Possession – interests give identical rights to enjoyment 2. Modern Some jurisdictions - no more strawmen needed, regardless of unity of time and title. 3. Express Language Required As joint tenancies are disfavored, there must be clear expression of interest a. “to A and B as joint tenants with rights of survivorship” b. Use of the words “joint tenants” is sufficient to establish that the property granted is to be held in joint tenancy Downing v Downing v. 1. Inter vivos transfer by one joint tenant Converted into tenancy in common, regardless of voluntary or involuntary a. More than two joint tenants Only grantee holds as tenant in common, other two still joint tenants b. Exceptions in some states i. Judgment – not considered substantial conveyance to destroy the unities of time and title, UNTIL ii. Mortgages iii. – just suspend the joint tenancy o Death of – split of states between temporary severance (such that right of survivorship resumes at end of lease) and right to possession ends at death 2. Contract to convey by one joint tenant 3. A joint estate is valid even though an estate less than a fee is conveyed to the tenant Downing v Downing (Not severed when leased part of land) 4. Testamentary disposition by one joint tenant has no effect

C. Tenancy by the entirety i. May have to be married couple to own ii. NOT alienable independently 1. Attempt to transfer is ineffective 2. Can only be severed by a. Death of either spouse b. c. Mutual agreement d. Execution by a joint creditor of both spouses iii. Right of survivorship iv. Severance A tenancy by the entirety can NOT be destroyed upon 1. voluntary alienation 2. compulsory 3. Sawada v Endo a. levy and execution for contract creditor b. Protects interest of the family – public policy favoring interests of family unit over favoring creditors of one of the spouses 4. Keene v Edie a. Tort creditor subject to levy and execution b. Tort victim more important that protecting family of tortfeasor  hold as tenants in common – either have right to partition

D. i. May have to be married couple to own ii. Limited alienable independently 1. Can NOT transfer inter vivos unless both join in conveyance 2. devisable

XXVI. Common law causes of action A. Accounting i. An equitable action in which one cotenant seeks to have another state the net income, rents, or profits for the property and give the plaintiff his or her share. ii. Only for an action against a cotenant to third parties

B. Contribution i. Cotenant seeks reimbursement from his or her co-tenant for expenses in repairing, maintaining, or operating the property. 1. Real property , mortgage, etc. 2. NOT cost of improvements and new construction C. Partition Seeks to end the cotenancy when the parties cannot agree on its operation or management. i. Partition in kind – physical partition 1. Partition in kind should be ordered when it is (all elements) a. Feasible b. Within the best interest of all the tenants in common Ford v Kirk; Delfino v Vealencis Sale of one’s property without consent is an extreme exercise of power warranted only in clear cases 2. Owelty – equalizing payment for partitions that are not equal, such that partition in kind may be ordered even though the parcels are of unequal value.

ii. Partition by sale – When partition in kind not possible, sale property and divide proceeds between cotenants, allowing improving cotenant to recover such cost 1. Partition in kind should ONLY be ordered when (all elements) a. Physical attributes such that partition in kind impracticable or inequitable i. Parcel so small, can’t subdivide without violating zoning laws of parcel size ii. Single on single lot b. Interests of owners would be better promoted i. Burden to demonstrate on requesting party

iii. Agreements NOT to partition Valid IF not for too long a period ()

XXVII. Issues with co-ownership A. Possession i. No co-tenant has the right to exclusive possession of part or all. ii. Co-tenant out of possession cannot bring a possessory action unless oust tenant in possession

B. Rents and Profits i. Co-tenant rent to other co-tenant 1. A cotenant is NOT liable to pay rent or to account to other cotenants a. Exception – ouster i. Assertion of exclusive claim to the property ii. Notice to the ousted co-tenant Martin v Martin ii. Rent from 3rd parties - shared iii. Profits derived from land – shared

C. Effect of one concurrent owner’s encumbering the property i. Tenancy in common 1. A mortgagee can foreclose ONLY on the mortgaging co-tenant’s interest ii. Joint tenancy 1. A mortgage executed by all joint tenants does NOT sever the joint tenancy Downing v Downing 2. A creditor of either joint tenant can go after the interest as long as the tenant is alive and can collect against that tenant’s part of it 3. IF the mortgage itself doesn’t severe the joint tenancy, only upon foreclosure will the joint tenancy be severed (up until foreclose, can pay off) 4. Foreclosure before death of mortgaging co-tenant a. Can only foreclose on their interest, and own ½ interest as tenant in common 5. Foreclosure after death of mortgaging co-tenant a. Extinguishes their interest, so can’t get to interest, such that surviving joint tenant takes free and clear of . 6. Simultaneous death a. If can’t prove by clear and convincing evidence that one survived the other, then treat each as if he or she had survived – split up iii. Tenancy by the entirety 1. In some states, a creditor of either joint tenant can not even go after the debtor’s part of it – may not be able to get anything 2. Right to convey it to someone else and isn't subject to creditors Sawada v Endo

D. Ouster i. An ousted co-tenant is entitled to receive his share of the fair of the property for the time he was wrongfully deprived of possession.

E. Expenses for Preservation of Property – Contribution i. Repairs – contribution can be compelled for necessary repairs 1. Majority view - have to give other co-tenant notice of need of repairs ii. Improvements – no contribution 1. Only in action for partition iii. Taxes and Mortgages – contribution can be compelled 1. But a co-tenant in sole possession can be reimbursed only for the amount that exceeds the fair rental value of the property Landlord-Tenant XXVIII. Leasehold Estates Tenant has a present possessory interest in the leased premises and landlord has a future interest (Reversion). A. Estate / Term for years Tenancy measured by a fixed duration i. Creation 1. Expressly created 2. Statute of frauds a. if more than 1 year, in writing ii. Termination 1. Terminates automatically at known date without either party giving notice 2. Breach of covenants – may have reserved right of reentry a. Failure to pay rent in most jurisdiction landlord has power to terminate 3. Surrender

B. Periodic Tenancy Tenants hold for initial period and for successive periods of the same duration i. Creation 1. Express creation 2. Implication a. If the lease has no set termination but does provide for the payment of rent at certain periods 3. Operation of law a. Tenant holds over b. Lease invalid ii. Termination 1. Termination date is uncertain until notice given 2. Notice for termination a. at end of a natural lease period b. If 1 year, half year notice c. Less than 1 year, notice equal to length of period d. In writing and delivered

C. Estate at will i. Creation 1. express agreement that either party may terminate OR have possession with permission but haven’t created one of the above 2. If lease gives only the landlord the right, imply right in tenant 3. If lease gives only the tenant the right, do NOT imply right in landlord ii. Termination 1. Termination by either party at will a. Either party dies b. Tenant commits waste c. Tenant attempts to assign tenancy d. Landlord transfers his interest e. Landlord executes a term lease to a 3rd person 2. Common law – without notice 3. Most statutes – notice equal to period

D. Estate at sufferance / Hold over tenant i. A way to describe the wrongful possession of land by a tenant who improperly holds over at the end of a lease ii. Landlord can either treat tenant as 1. trespasser for 2. new valid tenancy to pay rent iii. Common law – if hold over, new tenancy the same as old iv. Statutory – in some states, landlord can only keep for another month

E. General i. Modernly, treat as contract instead of conveyance ii. Residential 1. consumer law 2. provide habitual shelter, regulate 3. assume landlord greater economic power than tenant iii. Commercial 1. commercial law 2. assume free market transaction between equal economic powers iv. Voiding lease terms – unfairness 1. inequality of bargaining power 2. lack of alternatives 3. substandard housing 4. overreaching

F. Landlord’s Obligations and Tenant’s Remedies i. Duty to deliver possession of premises 1. American Rule a. Landlord only obligated to deliver legal possession to tenant b. Tenant has a burden to exercise rights to obtain actual possession Teitelbaum v Direct Realty Co. (tenant holds over) 2. English Rule a. Landlord obligated to deliver actual possession at beginning of term b. Tenant has right to damages ii. Quiet enjoyment Implied in every lease that the landlord nor someone with paramount title will interfere with the tenant’s quiet enjoyment and possession of the premises. 1. Actual Eviction a. Tenant is excluded from the entire premises and terminates the tenant’s obligation to pay rent. 2. Partial Actual Eviction a. A tenant is excluded from only part of premises b. By landlord i. Relieves the tenant from obligation to pay rent for entire premises c. By paramount title i. Apportionment of rent – reasonable rental value of the portion in possession 3. A tenant may terminate the lease and seek damages IF a. Landlord or persons acting for him cause the injury i. Can also flow from the natural and probable consequences of what the landlord permitted to be done, failed to do, or did. o Landlord knows of possibility of conflict (e.g. lease) o Good possibility of conflict (e.g. bar) Blackett v Olanoff (bar with loud music rented by landlord) ii. Must show that the landlord had a duty to do something b. Premises become uninhabitable for the purposes they were used i. Conduct that does not make the premises uninhabitable for the purposes for which they were used will NOT constitute constructive eviction Wesson v Leone Enterprises ii. Commercial – untenantable iii. Residential - uninhabitable c. Tenant vacates within reasonable time

4. Mutually Dependent Covenants Mutually dependent covenants such that failure to perform a material covenant will excuse the other party from performance a. Unless the lease specifies otherwise, if the landlord fails to perform a covenant in the lease within a reasonable period of time after being requested to do so such that the tenant is deprived of significant incentive to the making of the lease, the tenant may terminate the lease. b. Covenant Material i. Important to tenant in entering into lease c. Breach of Covenant d. Gives tenant ability to get out of lease without having to vacate the premises and risking being in two different leases Wesson v Leone Enterprises iii. Implied warranty of habitability Standards are more favorable to tenants than in constructive eviction and remedies broader. 1. Standard – Reasonably suited for human residence a. If no local housing code, whether conditions are reasonably suited for human residence b. Landlord’s duty is to keep the living conditions in decent conditions in addition to meeting the standard at time lease is entered c. Non-waivable by tenant d. NC i. Has to be some beyond rent for tenant to make repairs in an explicit bargaining o If tenant makes covenant to repair, obligates tenant to rebuild as well as repair Chambers v North River Line e. Need damages to have occurred after the lease was signed so have some sort of reduction in market value. f. General covenant to repair requires rebuilding only if the lease is for the entire building (not just part) Atlantic Discout v Mangel i. Encourages best investment g. Not responsible for things tenant causes or ordinary wear and tear 2. Tenant’s Remedies a. Termination of lease b. Make repairs directly and offset the cost against future rent c. Abate rent to fair rental value d. Seek damages against landlord, remain in possession and pay full rent i. Percentage reduction in use ii. Difference in value o Fair market value warranted – unsafe o Rent – unsafe

iv. Retaliatory eviction If a tenant exercises a legal right to report violations of housing codes, etc. the landlord is not permitted to terminate the tenant’s lease, raise rent, or reduce tenant services in retaliation, in some states. (usually within 90 to 180 days presumed) 1. Murphy v Smallridge if landlord has both bad and good motive, ok

G. Tenant’s Obligations and Landlord’s Remedies i. Tenant’s Obligations 1. Duty not to commit waste 2. Duty to preserve the premises 3. Duty to operate a. The existence of a substantial minimum base rent is a strong factor against implying a covenant of continuous operation Piggly Wiggly Southern v Heard (grocery store moved out and left premises vacant when had percentage clause) 4. Duty not to use premises for illegal purposes a. Continuous illegal activities, in which landlord is not a party, landlord can terminate lease or recover damages 5. Duty to pay rent a. Deposits i. Security – landlord can’t retain beyond extent of recoverable damages ii. Bonus / future rent payment – most courts permit landlord to keep after tenant evicted b. Destruction of premises i. General Rule – in the absence of lease provision providing who should bear the loss upon destruction, tenant is not relieved of the duty to pay rent despite the total destruction (interest in soil) ii. Exceptions (modern contract principles) o Only portion leased and whole building destroyed o Impossibility / frustration of performance a. Extreme / unreasonable difficulty, expense, or loss involved Albert M. Greenfield v Kolea

ii. Landlord’s Remedies 1. Recovery of possession a. Common law – landlord had no right to evict, had to use conditions for forfeiture b. Modern law A landlord may evict IF i. Default on rent o Some states allow for material breach ii. Notice in most states iii. Some states give tenant opportunity to cure default within time iv. Most states require legal process, NO SELF HELP o Right of re-entry is NOT a defense to an action for forcible entry (entering without consent) Jordan v Talbot o The removal of another’s property and storing it in the owner’s name without any other exercise of dominion and control over it is not a conversion o Where the conduct complained of does not amount to a substantial interference with the possession or the right thereto, but consists of intermeddling with or use of or damages to the personal property, owner has cause of action for trespass or case, and may recover only the actual damages suffered by reason of the impairment of the property or the loss of its use. c. Commercial Many states permit peaceful measures of self help. 2. Abandonment When a tenant abandons the premises and stops paying rent, the landlord can either a. Do nothing – tenant remains liable i. Acceleration clause b. Repossess – accept surrender i. Resuming possession of premises ii. Duty to mitigate o Landlord must take reasonable steps to try to re-rent premises for tenant’s account o Tenant has burden of proof, even though doesn’t make sense iii. Term merges into fee simple iv. Lease terminates and no more liability to pay rent v. Acts that do not constitute acceptance of surrender o Enter to make repairs o Receives back keys o Attempt to relet premises 3. Damages a. Deposits i. – landlord can’t retain beyond extent of recoverable damages ii. Bonus / future rent payment – most courts permit landlord to keep after tenant evicted b. Forfeiture i. Usual clause in lease permits landlord to re-rent upon termination and recover in amount of the difference between rent reserved in lease and new rent (when old rent greater than new rent) c. Rent agreed on – fair rental value d. Benefit of the bargain lost for this period of time e. Fair rental value measured by expert or

H. Restraints on alienation i. Absolute restrain is allowed as landlord has future interest ii. Tenant’s incentives to make property productive may be lease rather than fee simple because going to reap all benefits 1. substantial interest to protect Marital Property XXIX. Types of Marital Property Marital property is property of a married person that is subject to the claims of his or her spouse on death or divorce AND property that is held as tenants by the entirety or community property. A. Common law states i. Each person’s earnings are his or her own, regardless of marital status ii. Property owned individually unless choose to put it into tenancy in common, joint tenancy, or tenancy by the entirety. iii. When spouse dies, have right to share of deceased property 1. old fashioned was dower B. Community property states i. The earning of married people belong to the community comprised of the married couple. ii. Property owned in community unless convert to individual, etc. iii. When spouse dies, have right to half of the property

XXX. Issues with marital property A. Separate interests, held in tenancy by entirety i. NOT subject to levy of individual CONTRACT creditors 1. Sawada v Endo levy and execution for contract creditor Protects interest of the family – chose public policy favoring interests of family unit over favoring creditors of one of the spouses ii. Subject to levy of individual TORT creditors 1. Keene v Edie Tort creditor subject to levy and execution Tort victim more important that protecting family of tortfeasor  hold as tenants in common – either have right to partition

B. Distribution of Educational Degrees i. NOT within boundaries of definition of property 1. mere expectancy which may never be realized 2. No exchange value 3. Personal to holder 4. Terminates on death ii. Property is 1. present existence of the right 2. Ability to enforce that right iii. Use alimony rather than property settlement (allow for consideration of changes) Simmons v Simmons

C. Distribution of frozen embryos i. Frozen embryos are not property for equitable distribution Conglomeration of cells, entitled to special respect, but neither people nor property ii. Steps to resolution 1. Preferences of the progenitors 2. Prior agreement 3. Balance the interests of each party a. Party wishing to avoid procreation should prevail IF other party has a reasonable alternative for parenthood b. If no alternative, consider c. BUT if for mere donation, party wishing to avoid prevail Davis v Davis Lifetime Gifts NOT in a trust XXXI. Gifts A is a present outright (not in a trust) transfer of an interest in property made without consideration. If real property, need in writing signed by donor, otherwise, orally or inferred from the circumstances. A. Donative intent i. Intent to make a present gift ii. Gratuitous promises to make gift in the future is NOT enforceable B. Delivery i. Functions 1. Ritual – makes the significance of vivid and concrete to the donor a. Until donor does something to effectuate the gift, shouldn’t hold as gift 2. Evidentiary a. Provides unequivocal evidence of the gift to the actual witnesses of the transaction b. Provides donee with prima facie evidence in favor of alleged gift. ii. Types 1. Actual, Physical Delivery There must be a showing that the donee has received dominion and control 2. Constructive Delivery When the subject matter of an oral gift is not readily available or capable of manual tradition by being physically handed over, usually effective upon delivery of the means of gaining access to the subject matter. a. Gift of furnishing to house by deliver of keys to house b. Gift of car by delivery of keys to car c. Gift of money by disclosing the location of buried cash d. Gift of money by disclosing combination of 3. Delivery by written instrument Writings should manifest the donative intent, describe the subject matter of the gift, be signed by the donor, and be delivered 4. Symbolic Delivery Donor hands over some object, other than the item given, that is symbolic of the item a. Instruments of title iii. Donee already in possession The donor need not repossess and return to the donee – useless act, but the donor must do something to make his intent objectively clear. iv. Delivery to 3rd persons With instructions to deliver it to the donee immediately or at some time in the future v. Delivery through agent 1. If agent of donee – effective when donor delivers to agent 2. If agent of donor – effective when donor delivers to donee, unless the agent has assented to hold the property for the donee a. If donor dies before delivery made, no gift, absent assent vi. Gift, but retain life estate 1. Gruen v Gruen Physical delivery of tangible thing is best but if want to retain life interest, may not be practicable. A gift inter vivos of a chattel may be valid if the donor retains a life estate in the chattel and never surrenders possession to the donee before death. a. as long as evidence establishes an intent to make a present and irrevocable transfer of title or the right of ownership, there is a present transfer of some interest and the gift is effective immediately vii. Between family members living in same residence 1. NOT required to remove gift from common residence Robinson v Hoalton viii. Delivery of check for money from bank account Courts are split between 1. Effective gift 2. Effective ONLY upon cashing of check, because donor can stop payment of check ix. Newman v Bost Death bed delivery of keys to house with intent to give everything inside to housekeeper – no delivery x. Hillebrant v Brewer Branding of cattle sufficient delivery – acts of recording sufficient evidence of donative intent to part with dominion and ownership of property xi. Huskins v Huskins 1. Cash in safe not gift because letter to son telling him contents of safe belongs to mother didn’t constitute delivery 2. Check from personal account not gift because wasn’t paid before decedent’s death, which precluded the bank from honoring the check 3. Cash on body was “personal effect” passing through decedent’s will xii. Valid gifts 1. Stock certificates 2. Life insurance policy 3. Bank savings deposits C. Acceptance i. of acceptance if beneficial to donee ii. Acceptance is sufficient if the gift is accepted before 1. Revocation by donor 2. Before revocation by the death of donor D. Donor MUST NOT be able to revoke the gift i. If have an express power to revoke, fails for lack of delivery 1. Exceptions a. Revocable trusts b. Oral trusts of personal property Servitudes XXXII. General Servitudes are used to create rights (benefits) and obligations (burdens) that run with the land, which are non-possessory interest in the land that create a right to use land possessed by another. A. Terminology i. Runs with the land – All successor owners and occupiers of the land are entitled to enjoy the benefit or are bound by the burden. 1. easements, profits, and restrictive covenants run with the land to any subsequent occupier of the land (not to use land for nonresidential use) ii. Run with an interest in the land – Only successors to the interest (estate) owned by one of the original parties are bound or benefited by the servitude 1. affirmative covenants runs with the estate, not the land, and the taker of a lesser estate (assignee for example) than that held by the covenantor is not bound (to pay rent). iii. Appurtenant – benefits and burdens that run with the land iv. In Gross – those that don’t run with the land

B. Easements The holder of an easement (dominant owner) has a right to enter and use land and obligates the owner (servient owner) to refrain from interfering with the authorized use. i. Types 1. Affirmative Easements a. The holder is entitled to enter upon the servient estate and make an affirmative use of it. b. Either permanent or for term of years. c. Abandonment, with intention of such and a confirming action, will terminate an easement. Adverse use will also terminate. Non-use alone will not. 2. Irrevocable a. Distinguished from License i. Right to use land is revocable by the landowner, and so is NOT a servitude because does not bind either the original or any successor owners of the land. ii. Absent an enforceable agreement to the contrary, or circumstances producing an estoppel, landowner is free to revoke the license at any time, BUT until the license is revoked, use by the licensee remains permissive. iii. Something more than a change in ownership is required to convert the licensee’s use from permissive to hostile. b. Does not depend on proof of the agreement of the parties, but arises by operation of law to prevent an injustice Mund v English 3. Profits a. Adds to an easement the right to remove a natural resource or the right to hunt and fish on the land.

ii. Bound to Easements are either appurtenant (relate to the physical use or enjoyment) or in gross. 1. Easement Appurtenants a. Relates to use and enjoyment of land b. Benefit attached to possession c. Transfer of estates i. Transfer of dominant estate – benefit goes with it automatically ii. Transfer of servient estate – burden goes with new owner o Exception if bona fide purchaser who took with no notice of the easement 2. Easement in Gross a. Acquire use independently of ownership or possession of land, such that the owner of the easement can use it without regard to the owner’s connection to a piece of land b. Transfer i. Traditionally, only transferable if for a commercial or economic purpose ii. Restatement – servitude benefit in gross is freely transferable unless it is personal (if the relationship between the parties, consideration paid, nature of the servitude, etc. indicate that shouldn’t have expected it would pass to successor). iii. Creation The owner of any estate in land has the power to create an easement burdening that estate, but the owner cannot create an easement that would burden a greater estate. 1. Written Instruments – Express Grant / Express reservation a. Complies with all the formal requisites of a deed i. Statute of Frauds – must be in writing and signed by grantor ii. Presumption of perpetual duration unless specify otherwise b. Intent i. Easement or Fee? o Ascertain intent of the parties from the entire deed (parts are to be construed together). o If ambiguous, construe deed against constructor of deed o A deed that conveys a right generally conveys only an easement Brown v Penn Central Corp. o Public policy of finding easements as opposed to conveyances in fee simple because small strips operate adversely to the best use of the property (exception of modern use for bike paths). ii. Easement or License? o Suggests easement intended IF a. b. Payment of consideration c. “grant” d. Words of inheritance e. No rights of revocation withheld o Suggest license intended IF a. Close personal relationship between the parties c. Majority Rule – can’t create easement in 3rd party 2. Estoppel Servitudes are created by estoppel if injustice can only be avoided by establishing them. Landowner is estopped to deny the existence of a servitude (has conducted himself in a way that it would be unfair to deny that there ever was a contract or revoke such a contract) when (all elements) a. Either Owner/Occupier (any element) i. granted permission to use land ii. represented that the land was burdened by a servitude b. Reasonable foreseeability of a user’s material change in position i. Such that the user would believe that the permission would not be revoked c. User actually changed position in reliance on that belief i. Part performance doctrine – if someone makes contract to give easement, but don’t put it in writing, and someone has performed to the point of putting themselves in a position that they rely on it. ii. Mund v English (well, relied on it, no other source of water) 3. Implication Implied grant - dominant tenement is the parcel conveyed to the grantee Implied reservation – dominant tenement is the parcel retained by grantor (may require strict necessity) a. Prior Use An easement may be implied if, prior to severance of a single tract of land, a use existed on the servient part that was reasonably necessary for the enjoyment of the dominant part AND the parties intended the use to continue. Before the severance, quasi-easement as owner can’t hold easement on own. i. Unity of ownership is severed ii. Use was in place before severance iii. Use was visible or apparent at time of severance – Notice of its existence and necessity o Apparent means the use could be discovered upon reasonable inspection o A non-visible use may still be apparent if surface connections would put a reasonable person on notice of its existence Van Sandt v Royster (underground sewer line) o Expectation that conveyance would not terminate prior use a. Not temporary or casual b. Reasonably necessary for enjoyment c. Existence of use apparent d. Prior use was for underground utilities i. NOT subject to recording acts iv. Easement is necessary for enjoyment of dominant estate o Majority - Strict necessity – higher standard if would benefit grantor than if benefited grantee (construe against grantor) o Minority /Modern shift - Reasonable necessity v. Indefinite duration as long as used to serve some purpose for creation b. Necessity i. Creation A by absolute necessity is created by implied grant or reservation over the lot with access for the necessity when (any element) o Grantor conveys lot from larger parcel and landlocks one o Grantor conveys two lots simultaneously and landlocks one ii. Scope of easement Scope of the easement is defined with reference to the reasonable enjoyment of the land all lawful uses it may be put o Ingress and egress o Installation of utilities iii. Rationale o No longer for public policy, rather intent of parties iv. Servient owner may choose reasonably convenient location v. Terminates when necessity ceases

4. Prescription Analogous to adverse possession. a. Requirements i. Actual use o Prohibits negative easements by prescription (so can’t compel neighbor to take down fence because implied negative easement to light and air) ii. Open and notorious iii. Adverse and Hostile o An easement by prescription may be created by a use that is made pursuant to the terms of an intended, but imperfectly created servitude Paxson v Glovitz If take possession under an invalid deed, but with permission of other person, or if start using what you think is easement, can still be adverse when think you are using it as owner. iv. Continuous use v. For the statutory period vi. Claim of right b. Scope of easement i. Use may change to take advantage of development of technology or normal development ii. Permissible uses of an easement are any uses which do not cause unreasonable damage to the servient estate or interfere unreasonably with its enjoyment Paxson v Glovitz c. Indefinite duration as long as used to serve some purpose for creation d. Things which cannot arise by prescription i. Negative easements ii. Easements in public lands iii. Easement by necessity, but if necessity ends, adverse from then on. iv. Scope of Easements and Profits – Relocation and Use 1. Location a. Restatement i. Owner of servient estate has right to specify reasonable location ii. Dimensions are those reasonably necessary for enjoyment of servitude 2. Relocation a. By Both parties i. All states allow b. By servient owner i. Few states allow IF o At own expense o Doesn’t inconvenience easement holder’s use ii. Restatement - Owner of servient estate has right to make reasonable changes in the location or dimensions of easement UNLESS o Expressly denied by terms of easement o Significantly lessens the utility of the easement o Increases the burdens on the owner of easement in use and enjoyment o Frustrates the purpose for which easement created iii. Colorado o Have to go to court to get order, protects easement owner Lewis v Young c. By dominant owner i. NOT allowed – misuse of easement 3. Use a. By servient owner i. Right to use however they want, as long as doesn’t affect easement ii. If burdened by express easement of ingress and egress, may narrow it, cover it, gate it, or fence it off, as long as passage not impaired o Increases value of estates, encourages improvements b. By dominant owner i. Take advantage of technological changes, accommodate normal development as long as stay within purpose of easement ii. Can increase use until damages servient estate iii. Can’t use appurtenant easement to serve other property Brown v Voss o Limit use to ‘normal development’ to protect grantor of easement

v. Succession and Divisibility 1. Appurtenant easements a. Binding on all subsequent owners / occupiers of servient property b. Benefit of appurtenant easement passes to all subsequent owners / occupiers of dominant property, including adverse possessors c. Upon division i. Parts of burdened land remain burdened ii. All parts of benefited land entitled to use easements appurtenant to parcel iii. Except when unreasonably increases the burden  apportion rights 2. In Gross easements (Profits) a. Assignable unless parties didn’t intend Fair Brothers v Adams b. Upon division i. can sell, without creating burden on servient estate Orange County v Citgo Pipeline and Restatement o E.x. can sell hunting right to 4 different hunting clubs

vi. Contribution 1. Absent a prior agreement, all users of an easement may be required to contribute to its maintenance vii. Exclusivity 1. If deed does not specify, look to nature of easement, consideration paid, etc. “the” viii. Modification or Termination 1. By terms of grant 2. Purpose for easement ends a. Mostly for easements of necessity 3. Merger a. If gain ownership of servient estate, merges and easement disappears 4. Forfeiture for misuse a. Only in extreme cases where not stopped by injunction 5. Release a. Servient owner can release easement to dominant owner – statute of frauds 6. Abandonment a. Intent to abandon i. with identifiable evidence of unambiguous act inconsistent with continued ownership of easement b. Subsequent nonuse Nonuse alone, no matter how long, does not constitute abandonment 7. Recording Acts a. A subsequent bona fide purchaser who takes without actual, constructive, or inquiry notice of the easement is not bound by the easement. 8. Condemnation 9. Involuntary destruction of servient estate 10. Prescription / Adverse Use 11. Judicial – Change of Conditions Doctrine - Restatement An easement will terminate when a. Change makes it impossible to accomplish purpose, court may modify b. If modification not practicable or effective, may terminate and award compensation c. If purpose can be accomplished, but servient estate no longer suitable, may modify to permit other uses to preserve benefits of original servitude

Covenants C. Covenants A promise by or to a landowner intended to bind or benefit successors to the land. i. Requirements 1. Statute of frauds 2. Exceptions a. Part performance b. Equitable estoppel ii. Types 1. Real Covenants Covenants that could be enforced at law a. Types i. Restrictive / Negative Covenants Obligates the servient owner to use or refrain from using land in a particular way ii. Affirmative Covenants Obligates the servient owner to make payments or provide some other performance to another (e.g. homeowner’s association, etc.) o Affirmative Burden 2. Equitable Servitudes Covenants that could be enforced in equity 3. Conservation easements

iii. Terminology 1. Intent to bind successors a. May be inferred from circumstances surrounding creation of covenant b. Language of covenant i. “this covenant runs with the land” ii. “grantee covenants for herself, her heirs, successors and assigns” 2. Notice a. Common law i. Whether or not had notice, took land burdened by covenant b. Recording Statutes i. If covenant not recorded, bona fide purchaser who has no notice of the covenant and records takes free. 3. Horizontal Privity a. Between original parties b. Horizontal privity exists if covenant is created when one original party transfers an interest in land (other than the covenant itself) to another original party, such as a grant of fee estate, life estate, easement, or leasehold. c. In most jurisdiction, the transfer of property and creation of covenant must arise simultaneously. d. NOT met if acquired interest in land prior to creation of covenant i. Grantor-grantee ii. Landlord-tenant iii. Mortgagor-mortgagee 4. Vertical Privity a. Between an original party to the covenant and successor in interest b. Burden – need same estate i. Lessees are not in vertical privity with Lessors for burden c. Benefit – need some estate i. Lessees are in vertical privity with Lessors for benefit d. Line of privity broken by i. Adverse possession ii. Foreclosure 5. Touch and Concern a. The covenant must in some way affect the legal rights of the covenanting parties as landowners (any element) i. Physical impact ii. Economic impact iii. Bears upon the use and enjoyment of the land iv. Requirements 1. Runyon v Paley - NC a. Real Covenants i. Intent o Benefit and burden ii. Horizontal Privity iii. Vertical Privity iv. Touch and concern o Both benefit and burden b. Equitable Servitudes i. Intent o Covenant to bind the person against whom enforcement is sought and to benefit the person seeking to enforce ii. Touch and concern o Covenantee seeks to enforce restriction against covenantor’s successor, only need to show that the burden touches land of opposing party o Covenantee’s successor seeks to enforce restriction against original covenantor, only show benefit touches and concerns successor’s land. iii. Notice 2. Sonoma Development v Miller – VA a. Real Covenants i. Intent o Benefit and burden ii. Horizontal Privity o Covenant must be a part of a transaction that also includes the transfer of an interest in land that is either benefited or burdened by the covenant. iii. Vertical Privity iv. Touch and concern v. Writing b. Equitable servitudes i. General Plan covenants o VA has limited equitable servitudes to general plan covenants

3. Restatement 3rd To create a servitude (all elements) a. Intent b. Either (any element) i. Writing – Statute of Frauds Exceptions to statute of frauds o Implication o Estoppel o Prescription c. NOT illegal d. NOT against public policy i. Arbitrary, spiteful, capricious ii. Unreasonably burdens a constitutional right iii. Unreasonable restraint on alienation iv. Unreasonable restraint on trade or competition v. Unconscionable e. NOT unconstitutional

v. Conservation and Historic Preservation Servitudes Typically not accompanied by transfer of any interest in the burdened land – problem with horizontal privity at law and appurtenant benefits in equity 1. Uniform Conservation Easement Act of 1981 Statutorily authorized “easements” 2. Restatement Eliminates horizontal privity, recognizes enforceability of benefits in gross, and allows assignment of benefits in gross.

vi. Specific situations 1. Promises to pay money a. If used in a way connected with land, run. 2. Covenants not to compete a. Burden clearly touches and concerns, but benefit not affected in physical use b. Some courts don’t permit benefit to run c. Restatement permits benefit, but not burden d. Most courts permit both, regardless vii. Creation by Written Instrument 1. Includes a. Identify covenantor / covenantee b. Property burdened c. Property benefited if appurtenant d. Parties intended to have enforcement rights if in gross e. Whether burdens or benefits or both intended to run with land

2. Up until developer sells first lot, can change declaration a. May retain power to change (if not unconscionable)

3. After record declaration, deeds don’t have to refer to declaration

4. Zoning vs. Covenants a. If conflict – whichever more restrictive prevails b. If incompatible – zoning prevails because illegal use viii. Creation by Estoppel A servitude may be created by estoppel, as an exception to the Statute of frauds, when 1. Owner represented that the land was burdened by a servitude a. Even if promise is oral only (doesn’t comply with Statute of Frauds) 2. Reasonable foreseeability of a user’s material change in position a. Such that the user would rely on the servitude 3. User actually changed position in reliance on that belief a. Part performance doctrine – if someone makes servitude, but don’t put it in writing, and someone has performed to the point of putting themselves in a position that they rely on it. b. The consequences of failure to comply with the Statute of Frauds do not apply if the beneficiary of the servitude, in justifiable reliance on the existence of the servitude, has so changed position that injustice can be avoided only by giving effect to the parties’ intent to create a servitude. Restatement c. Shalimar Assocation v DOC Enterprises (developer put golf course restriction on land, homeowners relied on when purchasing)

ix. Creation by Implication 1. Implied reciprocal servitude doctrine When a developer conveys a lot with restrictions an implied reciprocal servitude is implied on the remaining property within the same general plan of development. a. Protects hole in deed problem b. Protects homeowners if developer changes his mind midstream 2. When sell lots with rights to use common amenities, imply that everyone has undergone 3. When create common community, implied obligations to maintain amenities

x. Creation by Prescription 1. Negative easements can NOT be acquired by prescription 2. If landowners perform on covenants they think they are bound by for the prescriptive period, any defects in their creation may be cured.

xi. Creation by 1. Government may acquire covenant benefits (cheaper), if can’t be accomplished by zoning or other regulation without violating rules of takings. xii. Validity 1. Open-Ended covenants to pay money a. Originally were denied in i. equity - went on for indefinite time ii. law – paying money doesn’t have anything to do with land b. Restatement i. When buy into community with common property, expect to maintain, such that if developer left out assessment covenants should be implied ii. Can amend to extend the life of a covenant with only a majority, unless declaration expressly provides otherwise iii. Modernly, developers declare that never terminates unless landowners affirmatively act to terminate c. Covenant to pay for services is NOT an interest in land (statute of frauds doesn’t apply) Miles v Carolina Forest Association d. water i. Did NOT run ii. Seasonably supply and doesn’t touch and concern Eagle Enterprises v Gross e. Streets and parks i. RUN ii. Assesssments to pay for amenities in the community where you have an easement right to enjoy them is close enough to the land to allow them to run. iii. Subsequent purchasers are bound by affirmative covenants to pay money (Assessment covenants) for use in connection with, even if not upon, the land which is subject to the burden of the covenant. Neponsit Property Owners Ass’c v Emigrant Industrial Savings Bank f. dues for sports club i. RUN ii. Touched because provided benefit to unit owners even though they personally had no interest in using club and not unfair Streams Sport Club v Richmond g. use of recreational facility i. RUN ii. Purchasers had notice, not unconscionable h. Covenant giving developer percentage of gross receipts i. RUN ii. Set forth in declaration and benefited owners iii. BUT should only be allowed for reasonable time

2. Imposing Fines a. NC Planned Community Act i. Unless the statute expressly forbids it, may impose fines o Overrules Wise ii. If amend and no one challenges with a year, can’t later challenge o Miles not within a year so would have lost 3. Not to sue a. Sovereign Immunity i. Able to negotiate immunity in particular situations Lakeview Boulevard Condo v Sales Corp Court said even touches and concern, but doesn’t really touch and concern (Restatement view)

4. Building arrangement / Indirect Restraint on Alienation a. Covenant obligating landowner to use developer as builder for first building on lot held invalid and even if valid, doesn’t touch and concern – undue restraint on alienation Caulette v Stanley Stillwell & Sons

5. Direct restraint on alienation a. Covenants requiring the owner of a fee simple estate to obtain the consent of another before transferring the fee simple – invalid restraints on alienation (e.g. screening of purchasers by developers) i. Unless protects legitimate interest of person whose consent required o Affordable housing o Cooperative housing (financial interdependence on everyone) o Fixed price options of limited duration o Rights of first refusal to purchase at same price of limited duration to exercise right

6. Covenants against Competition a. Does covenant itself violate public policy? b. Does the remedy violate public policy? Davidson Bros Inc. v D. Katz & Songs

7. Fair Housing Act a. Discriminatory Intent b. Disparate Impact i. If didn’t intend to, but result does, violates c. Reasonable Accommodations i. If want to enforce it, provide reasonable accommodations (e.g. not enforcing covenant against group homes) d. Does NOT apply to commercial real estate, etc. e. With respect to dwellings, outlaws discrimination based on race, color, religion, national origin, sex, familial status, handicap f. Prohibits you from refusing to sell, rent, negotiate someone on grounds g. (c) from making any statements or advertisements with respect to sale or rental that indicate any preference or limitation or intention to make such a preference based on the above i. Violate if say only want to rent to ‘mature female’ or ‘Russian speakers only’ ii. Selection of roommates may be protected under privacy, choice of association h. (d) represent to anyone that not available i. (e) prohibit blockbusting – practice where real estate agents tried to stampede people into selling j. Exemptions i. For sales of single family , as long as accomplish without use of real estate agent or advertisement

8. Discrimination Against Handicapped a. Group home for 4 unrelated AIDS victims held valid Hill v Community of Damien of Molokai b. Characteristics of single family i. Emotional support ii. Financial support iii. Activities together (e.g. eating, sharing kitchen)

9. Discrimination based on familial status a. Denying dwelling to someone because have child under age of 18 b. Exception – senior housing i. Everyone over 62 ii. 80% occupied by over 55 and publish policies and adhere to them

10. Discrimination based on marital status / sexual preference a. Covered by many state statutes / local statutes

11. Covenants restricting household occupants and personal freedoms a. Nahrstedt v Lakeside Village Condo Woman with cat that didn’t hurt anyone i. Restrictions contained in a project’s recorded declaration o Presumption of validity ii. Restrictions promulgated by board o Reasonable test - enforceable unless unreasonable a. Arbitrary b. Against public policy c. Denies fundamental constitutional right d. If harm done is disproportionate to the benefit enjoyed by all iii. Determine reasonableness by reference to community as a whole, not individual b. Restatement i. Rules must be reasonable ii. Unless expressly authorized by the declaration, an association lacks power to adopt rules that o Restrict the use or of, or behavior within, individually owned lots or units a. Unless designed to protect other members of the community from unreasonable interference with their rights to enjoy either the common property or their individual properties

12. Judicial Review of Association Decision Making a. Business judgment rule i. Intervene only in cases of , bad faith, or arbitrary discrimination ii. Burden on property owner challenging board’s actions b. Reasonableness Standard i. Review association decision making using reasonableness ii. Burden on association to justify action c. Restatement i. Board has duties to act o Impartially, reasonably, keep records, let people talk ii. Duties of ordinary care in o Managing property o Financial affairs o Act reasonably in discretionary powers (rulemaking, enforcement, design control powers) iii. Burden of proof on members who challenge the association’s action xiii. Modification 1. Retained power of modification (usually by developer) 2. Changed Conditions Doctrine a. Restatement i. Impossible to accomplish purpose, may modify ii. If can’t modify, may terminate iii. May compensate iv. If purpose possible, but servient estate no longer suitable, modify to permit other uses to preserve benefit of original servitude b. As a general rule of equity, a court of equity may deny an injunction when the hardship to the defendant is great and the benefit to the plaintiff is small. But where the right to the benefit of a servitude is clear, the defense of disproportionate harm and benefit is usually not persuasive to a court in covenant cases. Rick v West c. xiv. Termination 1. Expiration 2. Release 3. Abandonment 4. Merger 5. Estoppel 6. Prescription 7. Condemnation Eminent Domain XXXIII. Eminent Domain A. The government can compel a owner to relinquish their control, ownership, and domain any property it chooses provided that i. Public purpose 1. Economic development – valid public use within constitution, but not in Michigan anymore after County of Wayne overruled 2. Urban Renewal – transformed blighted area into well balanced community. Burham v Parker 3. Problem of residential market skewing Hawaiian housing authorities v Midkeiff ii. Just compensation B. Zoning Exclusionary zoning that operates to limit the housing opportunities for a significant amount of population is improper because not within the police power Mount Morrell

Regulatory Takings XXXIV. Regulatory Takings A claim that a land regulation has, even though the title hasn’t been acquired by the government, sufficiently interfered with the property rights and should be treated as though it was a taking and just compensation given. A. Reduction in value alone is not sufficient to make a taking i. BUT if goes too far, can be a taking Pennsylvanie Coal Co. v Mahon (value of coal was in mining it, and took away that right) 1. public interest inst strong enough (if it was, use eminent domain) B. Look at parcel as a whole to determine what is the property C. Test is whether this particular regulation has concentrated burdens on one or a small group of property owners to bear a burden in which in all justice and fairness should be borne by the larger society D. Balancing Analysis (Unless taking per say  actual, physical invasion) Penn Central Transportation Co v City i. Due Process There must be (all elements) 1. Legitimate purpose a. Within police powers to regulate for the health, safety, morals, and general welfare of the state/city 2. Rational relationship between purpose and means adopted ii. Takings 1. Economic impact of regulation a. Diminution in value (not determinative) b. Interference with distinct investment-back expectations c. Denies economically beneficial or productive use of land – per say taking Lucas i. Exception – if not supposed to engage in activity in first place - 2. Character of governmental action a. Actual physical invasion  per say taking Loretta b. Broadly based regulation? i. If have enough people effected, can rely on political process to have it corrected, whereas if concentrated may not be able to c. Applies without discretion to authorities? E. Exactions Things demand from developers in exchange for permission for them to develop, such as requiring them to develop land for streets to serve lots or park or school i. Must show that there is a substantial nexus between the need or harm development creates and the demand Nollan ii. Rough Proportionality Individualized determination that is related in both the nature and extent to the impact of the proposed development. 1. Can't ask for more than what you can prove you need 2. City of Monterey v Del Monte Dunes Limited Rough proportionality to exactions, not to regulatory takings iii. A land use regulation does not effect a taking IF 1. substantially advances legitimate state interests without denying an owner economically viable use of land

F. Tests i. Lucas 1. If No conveyance of title or easement required 2. Restrictions that deny all economical benefit or productive use of property is a taking unless the prohibited uses could have been prohibited under common law nuisance principles. a. Nuisance principles b. Economical viable use c. Predicted Outcome ii. Nollan / Dolan 1. If conveyance of title or easement required 2. Compensation must be paid unless exaction justified under a. Nollan i. Important governmental interest o Preventing the harm that the development creates greatly advances an important governmental interest ii. Nexus o The developer would cause harm b. Dolan i. Rough Proportionality o Exaction must be roughly proportional to the harm to be caused ii. Harm o Impact of development justifies exaction iii. Benefit of Exaction iv. What property interest is needed? iii. Penn Central 1. If neither of the above – balancing test 2. Does the benefit to the public outweighs the harm caused to the individual property owners? 3. Does a single group or individual have to bear the burden which should be borne by more people? a. Nature of governmental action b. Economic impact c. Diminution in value