1
Q
What is the common law definition of trespass?
A
An unprivileged intentional intrusion on property possessed by another.
2
Q
State v. Shack
A
Ownership of real property does not include the right to bar access to governmental services available to migrant workers.
3
Q
Commonwealth v. Magadini
A
The necessity defense negates trespassing if:
1. There is a clear and imminent danger (i.e. cold weather);
2. There is a reasonable expectation that the D’s actions will be effective as the direct cause of of avoiding the danger;
3. There is no clear legal alternative which will be effective in avoiding the danger; and
4. The legislature has not acted to preclude the necessity defense from being raised
4
Q
What is the majority rule regarding the right to exclude from properties open to the public?
A
Properties open for public use can exclude anyone for any reason or no reason at all.
5
Q
What is the minority rule (NJ/Uston) regarding the right to exclude from properties open to the public?
A
Properties open for public use must have a reasonable reason to exclude someone
6
Q
Glavin v. Eckman Rules
A
Rule: Reasonable restoration costs may be used as a measure of damages to help restore [ ] as close as possible to its original condition if diminution in market value is deemed inadequate or unsatisfactory.
Sub-Rule: An actor (Eckman in this case) may be held liable for the actions of a third-party independent contractor if they define the scope of the work (show what work needs to be done under the contract, like pointing to the trees he wanted cut down)
7
Q
Jacque v. Steenberg Homes
A
Punitive damages resulting from a trespass should exceed the potential profit in order to deter future attempts by commercial entities (i.e. to deter self-helping actors); Nominal damages awarded for an intentional land trespass can support a punitive damage award at the jury’s discretion.
8
Q
Title II of the Civil Rights Act of 1964 prohibits discrimination in public accommodations based on what protected classes?
A
Race, color, religion, or national origin.
9
Q
The Civil Rights Act of 1866 prohibits discrimination based on what?
A
race; not limited to places of public accomodation
10
Q
Pierson v. Post
A
Property in a wild animal is acquired through occupancy, which requires at least mortally wounding the animal.
One must have corporeal possession of an item to have title to the item (being able to claim it as personal property).
11
Q
Popov v. Hayashi
A
If an actor is unlawfully interrupted during the process of achieving full possession of an item, the actor may be entitled to a pre-possessory interest in the item.
12
Q
Law of Capture
A
Whoever captures a migratory resource like oil and gas has the right to it, even if it migrates from under a neighbor’s property UNLESS the actor negligently wastes or destroys it (Ellif)
13
Q
Which legal doctrine supersedes the Law of Capture?
A
The Waste Doctrine
14
Q
An owner accidentally misplaces their property and can’t find it
A
Lost Property
15
Q
An owner intentionally leaves their property somewhere but forgets where.
A
Mislaid Property
16
Q
An owner voluntarily gives up possession with the intent to relinquish all rights to the property.
A
Abandoned Property
17
Q
In a dispute between a finder and the owner of the real property where an item was found, who wins if the item is classified as ‘mislaid’?
A
The owner of the real property
18
Q
What principle, established in Armory v. Delamirie, states that a finder’s ownership interest is superior to all but the true owner?
A
Relativity of Title
19
Q
In Adverse Possession, what does the ‘Open & Notorious’ element require?
A
The possession must be obvious to anyone who bothers to look, putting the true owner on notice.
20
Q
In Adverse Possession, what does the ‘Continuous’ element require?
A
The possession must be uninterrupted for the entire statutory period, though seasonal use may suffice for some properties.
21
Q
In Adverse Possession, what does the ‘Exclusive’ element require?
A
The possessor must exclude others from the property as if they were the true owner.
22
Q
In Adverse Possession, what does the ‘Adverse’ (or hostile) element require?
A
The possession must be without the true owner’s permission and against their rights.
23
Q
In Adverse Possession, what does the ‘Actual’ element require?
A
The possessor must physically occupy the land in some manner, such as for enjoyment, cultivation, residence, or improvement.
24
Q
What is the ‘Tacking Doctrine’ in adverse possession?
A
Succeeding periods of possession by different owners in privity can be added together to meet the statutory time requirement.
25
What is 'color of title' in the context of adverse possession?
It refers to a claim of possession based on a defective written instrument, like a faulty deed.
26
What is the most common state of mind test for adverse possession?
The objective test, where the possessor's state of mind is irrelevant as long as there was no permission.
27
What is the two-part test for a private nuisance?
A nuisance is a (1) substantial and (2) unreasonable interference with the use or enjoyment of land.
28
In nuisance law, what factor is the key battleground and involves balancing the gravity of harm to the plaintiff with the social utility of the defendant's conduct?
Reasonableness.
29
What is the 'coming to the nuisance' defense?
A defense arguing that the plaintiff created the problem for themselves by moving to an area where the nuisance-creating activity was already present.
30
What was the rule established in *Boomer v. Atlantic Cement* regarding remedies for nuisance?
Permanent damages, rather than an injunction, are appropriate if the harm from a nuisance is significantly less than the economic benefit of the activity causing it.
31
What is the traditional common law rule regarding the right to light and air, as stated in *Fontainebleau Hotel Corp.*?
There is no legal right to light, air, or a view over adjoining land. Howeverm, malicious spite fences, or blockages solely meant to block another owner's light and air are treated as a nuisance in most j/d's
32
How did *Prah v. Maretti* depart from the traditional rule on sunlight access?
It held that sunlight may be protected under private nuisance law when it is treated as a usable resource, such as for solar panels.
33
What is 'use zoning'?
Zoning that dictates the permissible uses of property, such as residential, commercial, or industrial.
34
What is 'area zoning'?
Zoning that dictates the physical requirements for buildings, such as lot size, height, and setbacks, regardless of use.
35
What was the landmark ruling in *Euclid v. Ambler Realty Co.*?
What Happened: Ambler’s property was rezoned by the municipality; this effectively de-valued Ambler’s lot by 75%
Rule: Municipalities have the police power to enact zoning ordinances so long as they benefit the public welfare and are not arbitrary or unreasonable.
36
Which zoning exception allows an existing business to continue operating after the area is rezoned in a way that would otherwise prohibit it?
Prior Nonconforming Use.
37
Which zoning exception applies to a property that is in the process of development when a zoning change occurs?
Vested Rights.
38
Which zoning exception is an administrative order waiving a zoning ordinance for a specific lot to prevent denying the owner all reasonable use of their property?
A variance.
39
According to *Town of Belleville v. Parrillo’s, Inc.*, what can cause a business to lose its prior nonconforming use status?
Substantially changing the character or size of the business.
40
To claim vested rights against a zoning change, a developer must have taken _____ in furthering the development.
substantial steps
41
In *Krummenacher v. Minnetonka*, what is the proper standard for granting a variance due to 'undue hardship'?
The property owner must show that the property cannot be put to a reasonable use without the variance.
42
What is the central ruling in *NAACP v. Mount Laurel* regarding exclusionary zoning in New Jersey?
Developing municipalities must make it reasonably possible for all groups to reside there by providing a variety and choice of housing, including low/moderate cost options.
43
In *Moore v. City of East Cleveland*, on what grounds was the zoning ordinance that narrowly defined 'family' struck down?
It was a constitutional violation of the Due Process Clause, which protects the right to family living arrangements beyond the nuclear family.
44
A non-possessory right or obligation that 'runs with the land' is known as a _____.
servitude
45
What is an easement appurtenant?
An easement that benefits a parcel of land (the dominant estate) and automatically passes to subsequent owners of that parcel.
46
What is an easement in gross?
An easement that benefits a particular individual or entity, personally, rather than a parcel of land.
47
When an express easement is ambiguous, what do courts typically presume the grantor intended to create?
An easement appurtenant.
48
What are the three types of notice that can alert a servient estate holder to an express easement?
Actual, inquiry, and constructive notice.
49
An easement created when a landowner grants permission and the claimant reasonably relies on it to their detriment is an easement by _____.
estoppel
50
An easement created through adverse and open use of land for a statutory period is a _____ easement.
prescriptive
51
An easement that arises when a severed parcel of land becomes landlocked is an easement by _____.
necessity
52
What level of necessity is required to create an easement by necessity?
Strict necessity, meaning the parcel is landlocked.
53
easement implied by prior use
1. Two parcels were previously owned by a common grantor
2. One parcel was previously used for the benefit of the other parcel in a manner that was apparent and continuous
3. The use is “reasonably necessary” often interpreted as convenient for the use and enjoyment of the dominant estate (lower level of necessity - reasonable necessity)
54
What is the remedy for a breach of a real covenant?
Damages and usually injunctions.
55
What is the exclusive remedy for a breach of an equitable servitude?
An injunction.
56
Horizontal privity
looks to original parties’ relationship
Instantaneous: cov was included in deed at time of sale
Simultaneous: both parties had interest in the same parcel (ex: LL/tenant)
57
Vertical privity
applies when the original party (aka prior owner) retains no interest in the land; strict standard
58
The requirement that a covenant must affect the use and enjoyment of the land is known as the _____ requirement.
touch and concern
59
In *Shelley v. Kraemer*, why was the enforcement of a racially restrictive covenant deemed unconstitutional?
Because judicial enforcement of the private covenant constituted state action, which violated the 14th Amendment's Equal Protection Clause.
60
What is the 'Changed Conditions Doctrine' for terminating a covenant?
A covenant is unenforceable if the character of the neighborhood has changed so significantly that the covenant's original benefit is eliminated.
61
What type of concurrent estate is the default in most states and does not include a right of survivorship?
Tenancy in Common (TIC).
62
What is the defining feature of a Joint Tenancy?
The right of survivorship, where a deceased tenant's interest automatically passes to the surviving joint tenants.
63
What are the 'four unities' historically required for a joint tenancy?
Time, title, interest, and possession.
64
Which type of concurrent estate is reserved for married couples and features an indestructible right of survivorship?
Tenancy by the Entirety.
65
As held in *Sawada v. Endo*, a tenancy by the entirety protects property from being seized for the _____ debts of one spouse.
unilateral
66
Does a cotenant in possession generally have a duty to pay rent to a cotenant out of possession?
No, unless the cotenant in possession has ousted the other cotenant.
67
What is a 'partition in kind'?
A physical division of the property among the cotenants, which is the presumptive remedy in a partition action.
68
What is a 'partition by sale'?
The sale of the property and division of the proceeds among the cotenants according to their shares.
69
An ownership interest that lasts for an indefinite duration, potentially forever, is a _____ estate.
freehold
70
The most complete form of ownership, lasting forever, is a _____.
Fee Simple Absolute
71
An estate that automatically terminates and reverts to the grantor upon the happening of a stated event is a _____.
Fee Simple Determinable
72
The future interest held by the grantor of a Fee Simple Determinable is a _____.
Possibility of Reverter
73
An estate where the grantor may choose to terminate it upon the happening of a stated event, but termination is not automatic, is a _____.
Fee Simple Subject to Condition Subsequent
74
The future interest held by the grantor of a Fee Simple Subject to Condition Subsequent is a _____.
Right of Entry
75
An estate that automatically terminates upon a stated event and transfers to a third party is a _____.
Fee Simple Subject to Executory Limitation
76
A future interest in a third party that cuts short a prior estate is an _____.
Executory Interest
77
An estate that is measured by the lifetime of a specific person is a _____.
Life Estate
78
If O grants 'Blackacre to A for life,' what future interest does O retain?
A reversion.
79
If O grants 'Blackacre to A for life, then to B,' what future interest does B have?
A vested remainder.
80
A remainder is _____ if it is subject to a condition precedent or held by an unascertained person.
contingent
81
The _____ doctrine protects the interests of future interest holders against damage by the present possessory estate holder.
Waste
82
What type of leasehold tenancy lasts for a specified, fixed period and ends automatically at the agreed-upon time?
Term of Years.
83
What type of leasehold tenancy renews automatically for successive periods unless one party gives proper notice to terminate?
Periodic Tenancy.
84
A tenant who wrongfully stays after their lease has terminated is a tenant at _____.
sufferance
85
What is the difference between an assignment and a sublease of a tenancy?
An assignment transfers the tenant's entire remaining leasehold interest, while a sublease transfers only a portion of it.
86
In an assignment, who can the landlord sue for unpaid rent?
The landlord can sue either the original tenant (T1) or the new tenant (T2).
87
In a sublease, who can the landlord sue for unpaid rent?
The landlord can generally only sue the original tenant (T1).
88
According to the majority rule in *Kendall v. Ernest*, a commercial lessor may not unreasonably withhold consent for an _____ of a lease.
assignment
89
As established in *Sommer v. Kridel*, what duty does a landlord have when a tenant defaults and abandons the premises?
A duty to mitigate damages by making a reasonable effort to re-let the apartment.
90
Which implied term in a lease is breached when the landlord's actions substantially interfere with the tenant's possession and enjoyment of the premises?
The covenant of quiet enjoyment.
91
When a landlord's actions make a property uninhabitable, forcing the tenant to move out, this is known as _____ eviction.
constructive
92
What was the landmark ruling in *Javins v. First Nat'l Realty*?
It established the implied warranty of habitability in residential leases, making the tenant's duty to pay rent dependent on the landlord providing a habitable premises.
93
Under the Statute of Frauds, what is the general requirement for an agreement for the transfer of property?
The agreement must be in writing.
94
*Tenhet v. Boswell*
a joint tenant may lease their interest to a third party without severing the joint tenancy
the death of a joint tenant invalidates lease
95
Which present title covenant is a promise that the seller owns the property they are selling?
Covenant of seisin
96
Which present title covenant is a promise that there are no undisclosed easements or liens on the property?
Covenant against encumbrances
97
Which future title covenant is a promise that the seller will cover expenses if the buyer's title is challenged by a third party?
Covenant of warranty
98
A ____ deed offers no warranties of title and conveys the property as is
quitclaim
99
Equity of Redemption
The borrower's right to pay off mortgage debt and prevent a foreclosure sale
100
Race statute
the first party to record their deed will prevail over the other
101
Notice Statute
subsequent purchaser without notice will prevail over the previous purchaser – actual, constructive, inquiry
Recordation of deed = constructive notice, so a purchaser is incentivized to record ASAP much like in a Race jurisdiction
102
Race-Notice statute
a subsequent purchaser without notice will prevail over the previous purchaser IF they record before the previous purchaser
103
Wild Deed
A deed recorded outside the chain of title, which does not provide constructive notice, is known as a wild deed.
104
Shelter Doctrine
A subsequent purchaser without notice may sell to a third party, even if the third party has notice; The third party may “shelter” in the earlier purchaser’s ignorance
A sells to B, then to C (who had no notice); C sells to D (who had notice of A to B)
105
What is the legal effect of a forged signature on a deed?
It renders the conveyance void, unless the person whose signature was forged ratifies it.
106
What is the legal status of a conveyance induced by fraud?
It is voidable by the defrauded party, but a subsequent bona fide purchaser is protected if they buy before it is voided.
107
What are the protected classes under the federal Fair Housing Act of 1968?
Race, color, religion, sex, familial status, and national origin.
108
In *Fair Housing Council v. Roommate.com*, why was the FHA held not to apply to roommate selection?
The court reasoned the FHA applies to the sale or rental of a 'dwelling' and was not intended to regulate shared living spaces within a single unit, also citing constitutional privacy/association concerns.
109
The Fifth Amendment's Takings Clause states that private property shall not be taken for _____ without just compensation.
public use
110
What was the key holding in *Kelo v. City of New London* regarding 'public use'?
Economic development can qualify as a public use, even if the property is transferred to a private party, as long as it is part of a comprehensive development plan.
Test to show public purpose: As long as there is a conceivable public purpose; (very loose)
Majority Opinion
* “Can’t take from A just to give to B” = not a public purpose
* But on the other hand, a state may transfer prop from private party to another if future use by the public is the purpose of the taking.
* Government often has private interests even though it is ultimately for public use, just not in the literal sense
* Ex: Public space to private hospital
111
What are the two types of per se regulatory takings?
1. Permanent physical invasions of property
2. Regulations that deprive the owner of all economically viable use.
112
In an ad hoc regulatory takings analysis under *Penn Central*, what are the three main factors considered?
1) character of the government action;
2) the economic impact on the claimant;
3) and the interference with reasonable, investment-backed expectations.
113
*Lucas v. South Carolina Coastal Council*
When a regulation deprives property of all economically viable use, a per se taking has occurred, requiring just compensation.
114
What is the exception to the *Lucas* per se takings rule?
The rule does not apply if the prohibited use was already barred by the state's background principles of nuisance and property law.
115
According to *Cedar Point Nursery v. Hassid*, does a physical invasion have to be permanent to constitute a per se taking?
No, a government-authorized physical invasion constitutes a per se taking even if it is temporary but lasting.
116
Willowbrook v. Olech
What Happened: Olech challenged Willowbrook as a class of one in a zoning dispute; Willowbrook enacted an arbitrary easement requirement that Olech said treated him differently than similarly situated residents
* A class of one may allege an equal protection (14th Amendment) violation
* Municipalities may not enact arbitrary zoning ordinances
* Formula: disparate treatment + arbitrariness = equal protection violation
* This case is an example of “rational-basis with teeth,” where the municipality’s ordinance is struck down despite the application of rational-basis scrutiny
117
NAACP v. Mount Laurel
What Happened: Mt. Laurel zoned a majority of their town for single-family home use only; Many of these single-family home lots were inaccessible for lower-income families/individuals
Rule: In NJ, developing municipalities must make it reasonably possible for all groups to reside in a given area by providing a variety and choice of housing (incl low/moderate cost housing; developing municipalities may not adopt policies which preclude this)
118
Village of Belle Terre v. Boraas
What Happened: College students were forced to move out of their rented home due to a local statute; the statute forbids more than two non-related individuals to live together
Rule: Municipalities may enact statutes such as these. Its purpose is to lay out zones where family values, youth values, and the blessings of quiet seclusion and clean air make the area a sanctuary for people
Statute was both overinclusive (ex: 3 librarians can’t live together) and underinclusive (2 noisy students can live together or a couple with 7 annoying kids and that would be allowed)
119
Moore v. City of East Cleveland
Rule: municipalities are not allowed to pass zoning ordinances that conflict with family values
Example of the dangers of giving municipalities too much deference
Deemed a constitutional violation of DPC (DPC encompasses “family” outside a purely nuclear family; family living is fundamental and protected right)
Stronger burden of proof required (but not strict scrutiny to a T)
120
Servient (Burdened) Estate
the estate that carries the burden of the servitude/easement; may be either negative or affirmative
121
Dominant (Benefitted) Estate
receives the benefit of a servitude
122
In Gross
the benefit is held by a particular individual or entity rather than running with a parcel of land (i.e. servitudes to run utility lines on land) (does not run to successor owners)
Qualities:
Benefits a person, whether or not they own any property
Ends when the grantee dies, unless otherwise noted
Must be clear from express grant or surrounding circumstances
If an easement is intended to provide an economic or personal benefit to an individual, it is an easement in gross.
123
Appurtenant
runs with the land to successor parcel owners and is effectively attached to dominant parcel
Qualities:
Passes with the property it benefits
Could continue indefinitely
If an easement is intended to benefit adjoining or neighboring land, it is an easement appurtenant
124
Profit á prende (profit)
not an easement, but also is a non-possessory interest that grants people the right to enter another’s land (w/o liability for trespass) and remove minerals, timber, or other natural resources from the land (Lobato v. Taylor)
125
Express Easements Test
1. The easement must be in writing
The original written document that created the easement
2. The easement’s intent to run with the land must be clear
Usually, there is express written language such as “intended to run with the burdened and benefitted land” or the like
3. There must be 1 of 3 types of notice, which alert the servient estate holder of the easement
126
Equitable Servitudes Element Test
1. In writing
Must be signed by party to be charged
2. Intent to run with the land on both burdened AND benefitted side
Look to language if any; if none, look at circumstances surrounding conveyance
3. Restriction touches and concerns both burdened AND benefitted side
Burdened side - does this affect the use of the land?
Benefitted side - does this improve the use/enjoyment of the land?
4. Party to be bound had notice of the restriction
Actual, inquiry, or constructive
Remedy: injunction ONLY
127
Appel v. Presley Cos. – Relationship between Unit Owners and Developers + Amended Covs
Rule: Subdivision committees may make amendments to their restrictive covenants so long as the 1. language allows such an amendment 2. the amendments are reasonable and 3. fit the development scheme.
128
Nahrstedt v. Lakeside Village Condominium Association, Inc. – Challenges to Covs; Reasonableness & Public Policy
What Happened: Nahrstedt is challenging a covenant restricting their ability to keep a cat in their condo.
Holding: The reasonableness or unreasonableness of a condo use restriction should be determined by reference to the common interest development as a whole, rather than facts specific to an objecting homeowner (P).
Rule: Restrictions contained in a declaration are presumed to be reasonable unless the restriction is arbitrary, imposes burdens on the use of lands it affects that substantially outweigh the restriction’s benefits to the development’s residents, or violates a fundamental public policy
1. Courts will apply scrutiny (i.e. rational-basis, strict) to covenants before enforcing them or striking them down.
2. When looking at the reasonableness of a covenant, the courts must determine its reasonableness as it relates to the community, as opposed to a case-by-case basis.
3. Complainants must establish that a covenant is arbitrary or in violation of public policy
129
Apple Valley Gardens v. MacHutta – Rules and Bylaws
What Happened: MacHutta owned and developed condo units in Apple Valley Gardens; Apple changed their bylaws to prohibit rental units; MacHutta did not comply with this prohibition, and Apple Valley sought to enforce the covenant, even though their condo declaration did not explicitly prohibit rental units; Court not sympathetic to ppl not being able to live in more than one place; reasoned you can always get rid of one of your units
Rule: Condo bylaws, whether through amendment or not, can impose restrictions on tenants by way of covenants. The covenants are enforceable as long as they do not conflict with the condo declaration or state/fed law. The bylaws need not be contained in the declaration to be enforceable.
130
shelley v. kraemer
What Happened: Shelley purchased a home in a common-interest development in Missouri; the development later enacted a restrive covenant banning AAs from owning/occupying property (holding title)
Rule: The courts may NOT enforce racially restrictive or other unconstitutional covs; while the cov itself is a private action, and therefore not subject to constitutional standards, the court’s enforcement of such a covenant constitutes a State action; the State’s conduct is subject to 14th
Reasoning: State courts are bound by the 14th Am and may not make available the full coercive power of gov to allow private individuals to deny the Shelleys’ rights on the basis of race.
While private actors can create and voluntarily abide by racially restrictive covenants, the state courts cannot enforce them without violating the Constitution
This is a classic neighbor agreement NOT a cov (as no horizontal privity)
Voluntary adherence to racially restrictive cov was allowed at that time as long as no state actor involved, but Fair Housing Law now precludes this
131
Northwest Real Estate Co. v. Serio – Restraints on alienation
What Happened: Northwest granted a deed in fee simple (the most complete form of ownership) to the grantees; the grant contained a provision that prohibited the grantees from selling the land without the consent of Northwest (ex of a Grantor Consent Clause); the grantees then attempted to sell the land to Serio, but Northwest refused to provide consent; Serio brought this action to enforce the sale.
Rule: when a party grants a deed in fee simple to a grantee, they cannot require the grantee to obtain the grantor’s consent prior to selling the property; A clause in a fee simple deed requiring grantor consent to transfer the property is generally invalid as they are repugnant (in conflict with) to the estate
132
Two Exceptions to Restraints on Alienation
1. Charities: gift, conservation land
2. Low-income housing: need restraints to ensure people can access this housing – if not restrained, people would just flip low-income housing units to make a profit
133
Restraints on Alientations General Notes
A fee simple interest is by definition alienable so a restraint on alienation cannot attach to it
Reasonableness is determined by weighing the utility of the restraint against the injurious consequences of enforcing the restraint
134
El Di, Inc. v. Town of Bethany Beach – Changed Conditions Doctrine
What Happened: El Di wanted to serve alcohol in a town restricting activity; Town challenged, even though there was a “brown bagging” policy, which allowed patrons to bring their own alcohol.
Rule: Changed conditions may be so significant to the point where they negate the benefit derived from the (restrictive) covenant; the change must be so significant as to “eliminate a substantial part of the benefit sought to be achieved by the restriction”
Test: when the character has changed so much over time (a long period) that there is evidence that the restriction no longer applies
Some courts allow covs to be modified, not simply terminated
135
Relative Hardship Doctrine
focuses on the amount of hardship on the servient estate, whereas Changed Conditions Doctrine focuses on dominant estate
Key Q: How harsh is this thing to the servient (burdened) estate?
Test: A cov will not be enforced if the hardship to servient estate owner will be a considerable magnitude greater than benefit to dom estate
136
Changed Conditions Doctrine
* restrictive covs will be deemed unenforceable if there is a radical change, although such change does not mean the cov is valueless; the change must be so sig as to eliminate a substantial part of the benefit sought to be achieved by the restriction
* Very strict test that only applies in few cases
* May also apply when substantial changes have occurred outside the restricted subdivision (only when the changes have so adversely affected so many lots in the subdivision that enforcement is pointless)
* Key q: Is there still a benefit of this cov to dom estate?
137
Acquiescence, abandonment, or unclean hands
complaining party may be barred from enforcing cov if he has tolerated or failed to object to other cov violations. Toleration may indicate an intent to abandon the cov and the D may reasonably rely on the failure to enforce the cov in investing in her prop
These conditions may occur if the P has…
1. Violated the cov himself (unclean hands) or
2. Has tolerated previous violations of the cov by the owner of the servient estate (acquiescence) or
3. Has tolerated violations of the covs by owners of other restricted parcels in the neighborhood covered by the cov (abandonment)
138
Marketable Title Acts
many states have this kind of statute, which terminates restrictive covs that are not re-recorded after a given period of time
139
Estoppel
when dom estate owner orally represents to the servient estate owner that they will not enforce the cov, then the dom estate owner may be estopped from asserting her interests in enforcing the cov if the servient estate owner has changed their position in reliance on the oral statement
140
Other ways to terminate covs
Language in instrument: many subdivisions or condo associations have covs that terminate in a given # of years unless the cov is renewed by the HOA
Merger: occurs if the burdened and benefitted estates come under ownership by the same person
Release: all parties (burdened and benefitted) may agree in writing to terminate cov or release the prop from it
Prescription: open and notorious violation of the cov w/o permission for stat period may terminate cov under stat of limitations
141
Entity property
individuals share prop rights that divide ownership from governance rights (i.e. common interest developments, corps)
142
Tenancy in Common (TIC)
Each co-T has an undivided interest/right to possess whole property
baseline/default presumption in most states
may still have a fractional ownership interest in the property
Each cotenant’s interest may be freely transferred at her own discretion (by will, grant, etc.) including upon their death
No right of survivorship
143
Carr v. Deking – Conflicts over Transfer, Tenancy in Common
What Happened: parcel owned by father and son as tenants in common; the father leases his interest to Deking after Deking goes behind the son’s back; the son, Carr, objects to this and claims that the lease is invalid due to lack of consent; the court holds that the transfer is valid.
Rule: One owner within a tenancy in common may unilaterally lease their interest without the consent of the other(s)
Joel’s (the son’s) remaining options:
1. Accept the lease as-is and reap the benefits (corn); or
2. Effect a partition (if Joel and George can’t agree as to what to do with land)
As a tenant in common, cannot object to co-tenants interest to lawfully lease/sell their own interest (Joel can’t object to George’s interest)
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Joint Tenancy
an equally-shared tenancy in common plus the right to receive the other joint tenant’s interest at his death (a right of survivorship)
Common for family properties, joint bank accounts
Historically, joint tenancies required four unities - PITT
Possession: each T has unlimited right to possess the whole
Interest: each T has an equal share/interest in the property
Time: T’s receive interest at the same time
Title: T’s receive their interest from the same document/via the same title
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Devise
left real prop in will
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Tenhet v. Boswell – Joint Tenancy Dispute
What Happened: Johnson leased their interest in a joint tenancy to Boswell but died three months later; the court is tasked with determining whether the lease terminated the joint tenancy, and whether the lease is enforceable.
Rule: a joint tenant may lease their interest to a third party without severing the joint tenancy; however, the death of a joint tenant does render the lease invalid.
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Tenancy by the Entirety
joint tenancy for legally married ppl; unilaterally indestructible right of survivorship; greatly limits what one spouse can do with the property on his/her own
Divorce (or death) required to partition the property
In modern form, a type of creditor protection for married people bc TE's cannot be severed unilaterally so banks can’t seize the prop as easily
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Sawada v. Endo – Tenants by Entirety
What Happened: Sawada and his wife owned property as tenants by entirety; Sawada got into a car accident with Endo; Endo sues Sawada and receives a judgment of ~$24k; prior to the judgment, Sawada transferred his interest in the property to his two sons.
Rule: Tenancy by Entirety protects property from being subject to levies for unilateral debts.
If Sawada had 100% interest in the property, the court likely would have considered the transfer to his sons a “fraudulent transfer,” and the property would have been subject to a levy.
Only makes sense as a tenancy by entirety case NOT a tenancy in common case
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Partitition
when co-T’s (namely, joint tenants or tenants in common) just can’t get along
Two ways to seek a partition:
1. Forced/Involuntary: partition against will of one of parties; judicially sought
2. Voluntary partition: both parties agree, just need to court to recognize the partition legally, so show up in court to get this recognition
Two possible results:
1. Partition in Kind: physical division among cotenants; presumptive right to this result
2. Partition by Sale: prop sold and proceeds split according to Co-T shares
Open market or auction - often happen during a one time auction because of a foreclosure sale; get whole prop; no one sets a price - market price is the price
Proceeds split based on interest (⅔ interest = ⅔ proceeds)
Requires meeting the jurisdiction’s standard for overcoming the presumption of in kind division
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Ark Land Co. v. Harper – Partition
What Happened: Ark Land Co. purchased a 2/3 undivided interest in land owned by a family (One family member refused to sell, Ark likely though they would be able to get a partition if they bought 2/3); Ark Land Co. later filed for a partition in hopes that the ⅓ remainder would be sold by family member; the trial court granted this request, but this decision was reversed by the appellate court
Rule: To overcome the presumption of a partition in-kind, the party requesting the partition must show that: 1) property cannot be conveniently partitioned in kind; 2) the interests of one or more of the parties will be promoted by the sale; AND 3) the interests of the other parties will not be prejudiced by the sale.
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Fee Simple Absolute
* ownership for all time (both the present estate and future interest at once) but may of course be sliced, diced and transferred by that owner
* Present and future interest holders are merged (basically no future estate older as its just an owner)
* "To A"; "To A and her heirs"
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Fee Simple Determinable
* words of duration: "as long as"; "during"; "until"; "while"
* FI in grantor as a possibility of revertor
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FS subject to condition subsequent
* grantor may take the property back when that something happens, but reversion is not automatic, must exercise their FI right of entry
* words of condition: "provided that"; "on condition"; "but if"
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Fee simple subject to executory limitation
* same as fee simple determinable but property goes to a third party, who has an executory, future interest (rather than grantor), upon occurrence of a condition
* words of duration: "until" "unless" "then to" "but if" "then to"
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Life estates
less common now, but still exist; “For life” = magic words; terminate upon grantee’s death!; FI in Reversion in grantor OR absolute/contingent remainder in 3rd party
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Remainder
when a future interest in a life estate is set to go to someone other than the grantor upon the life estate owner’s death (3rd party), that person owns a FI called a remainder
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Two Types of Remainders (ONLY FOR LIFE ESTATES)
Contingent Remainders: EITHER the remainder will take effect only upon the happening of an event that is not certain to happen; and/or
The remainder will go to a person unascertained or unborn at the time of the initial conveyance
O grants “Blackacre to A for life, then to A’s children”
Vested Remainders
Absolutely vested: set to happen - no matter what, person will get it when that person dies; O grants “Blackacre to A for life, then to B”
Vested remainder subject to open – set to happen for one or more people so far, but others may be added in the future; O grants “Blackacre to A for life, then to her children”
Vested remainder subject to divestment – set to happen as of the time of the conveyance, but may thereafter be destroyed if something happens; O grants “Blackacre to A for life, then to B unless B goes to jail.”
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Rule of Convenience
The class of persons entitled to receive the remainder/distribution closes so long as at the moment the distribution closes (preceding LE ends), there is at least one class member entitled to take distribution.
O grants Blackacre to A for life, then to the children of B
B’s children at the time of A’s death will receive the entirety of the remainder, even if B later has more children (who are SOL!)
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Rule of Destructibility of Contingent Remainders (minority rule)
Contingent remainder is destroyed if it does not occur by the time the preceding life estate ends
Ex: O grants “Blackacre to A for life, then to B if Hillary Clinton is elected President of the United States”
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Wood v. County Commissioners of Fremont County – Interpreting Ambiguous Easements
What Happened: Wood conveyed land to Fremont County for the purpose of constructing a hospital. When the land was not used for this purpose, Wood alleged that this grant was a Fee Simple Determinable/Subject to Condition Subsequent and tried to exercise his right of entry. The court ultimately allowed Fremont County to retain the land.
Intent of the grantor is key
There is a presumption against forfeitures
In order to create a Fee Simple Determinable/Subject to Condition Subsequent, the language must clearly convey this intent
Better language: “Wood grants this land to Fremont County so long as it is used to construct and maintain a hospital.”
Key language in grant: “Said tract is conveyed to Fremont County for the purpose of constructing and maintaining thereon a County Hospital in memorial to the gallant men of the Armed Forces of the United States of America from Fremont County, Wyoming.”
No magic words of duration
Who prevails here?
The Town because of the precatory language in deed
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McIntyre v. Scarbrough – Waste
What Happened: Scarbrough purchased a parcel of land from McIntyre, but granted McIntyre a Life Estate, allowing McIntyre to occupy the land until their death. After discovering that McIntyre was not actually occupying the land, Scarbrough sought to terminate the life estate.
Rule: the Waste Doctrine requires life estate tenants to maintain the property they were granted; failure to maintain property may result in a forfeiture of the life estate, but instead, courts will typically require the life estate tenant to take action to cure the waste.
Unusual outcome – normally court would grant injunction that Scarborough must fix prop rather than take it away fully despite her hardship (sick in hospital)
Waste Doctrine protects remaindermen
We need it because there are often conflicts of interest between life estate and future interest holders (reversioners and remaindermen), as well as LL and T’s
Common Issues:
Confusion of who owns what
LE owner may, if no concern for future interest holder, not maintain prop, change it significantly for their own purposes only
Inherent tension between LE owner’s interest and future interest in prop (longterm, sustainable) (as LE owner cannot give their estate to an heir by deed)
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Three Types of Waste
1. Voluntary: deliberate destructive acts to prop
Ex: life T decides to cut down and sell all the very old trees on the prop that until this point had been preserved by owners
2. Permissive: failing to take the necessary actions to maintain the property; life estate tenants have the obligation to pay the maintenance expenses of the property, but this is limited to the rental value of the property
McIntyre
Does not include ordinary depreciation due to age or normal use (has to be more than this)
Ex: life tenant makes no effort to do any ordinary maintenance of the house over the fifty years he lives there, resulting in the roof caving in, rat infestations, etc.
3. Ameliorative: a (rare) change that increases property value, but fundamentally changes the character of the property.
Most courts allow the remaindermen to commit ameliorative waste
Essentially an act of voluntary waste
Must be profitable
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Term of Years
lasts for a specified period of time (of any length) determined by the parties
Ex: 1 yr lease, 99 yr lease, 60 day lease
Ends automatically at agree-upon time, but may be terminated before the end of fixed period upon happening of an event or condition stated in lease agreement (no notice req)
Future interest (if LL): reversion
If LL provides that prop will shift to 3rd party at end of leasehold, 3rd party holds a remainder
Death of either party does not terminate tenancy
LL cannot evict tenant before end of term unless there is a breach of a material term in the lease, such as the cov to pay rent
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Periodic Tenancy
renews automatically at specified, successive periods unless either LL/tenant choose to end relationship
A complete period of notice is generally required to terminate (per CL or statute); usually min of 1 mo notice, max 6 mo notice
If less than 1 year, generally ok if oral
Ex: week-to-week, month-to-month, etc.
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Tenancy at Will
like a Periodic Tenancy, but can be ended without notice by either party
Many states say notice is required before tenancy can be terminated, which means there is effectively no TaW’s in those states
Death does terminate TaW’s (traditionally)
TaW LL (as opposed to periodic tenancy) may have statutory requirement of notice to evict but also an absolute right to evict (whereas a periodic tenancy LL may face a tenant defense to eviction, like a violation of implied warranty of habitability)
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Kendall v. Ernest – Commercial lease
What Happened: Perlitch enters a 25 yr commercial lease with Bixler, which contains a provision requiring LL consent prior to lessee assignment; Perlitch assigns their interest to Ernest; Bixler attempts to assign their interest to Kendall via sale, but Ernest withholds consent
Lease is for an airport hangar for airplane maintenance and repair (would only make sense at an airport, thus biz can’t operate elsewhere, maybe explains why this is a long term lease)
Rule: a commercial lessor may not unreasonably withhold its consent to an assignment of a lease, with or without a clause requiring the landlord’s consent to transfer the lease unless the lessor has a commercially reasonable objection to the assignment
Notes: wanting more $ is not a commercially reasonable objection
Majority rule allowing arbitrary refusal produces harsh consequences, while the minority rule and the Restatement (Second) require commercially reasonable objections. The court emphasized the inherent duty of good faith and fair dealing in contracts
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Slavin v. Rent Control Board – Residential Lease
What Happened: Slavin’s T allowed a new co-tenant to move into their apt after their old co-tenant moved out; Slavin refused to provide the required consent, but the cotenant moved in anyways; Slavin seeks to evict co-tenant
Rule: a residential LL may arbitrarily/unreasonably refuse to provide consent for the lessee’s assignment/sublease as long as there is no lease provision that his consent will not be unreasonably withheld (inverse of Kendall bc this is a residential, rent controlled prop, and implied cov of good faith and fairness is upheld)
A rule requiring that withholding consent be reasonable would invite a substantial amount of litigation trying to determine whether the withholding of consent by any number of landlords in any number of cases was reasonable. This is a question of public policy, better suited for the legislature.
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Sommer v. Kridel (heartbroken guy who broke off engagement)
What Happened: Kridel breached a 2 yr lease with Sommer by moving out and refusing to pay rent; Sommer failed to re-let the apt to a new T and sues Kridel for unpaid rent
Rule: A LL has a duty to mitigate damages when seeking to recover rents due from a defaulting tenant.
Principles:
A LL has a duty to mitigate if a T moves out and refuses to pay any rent
The duty is satisfied if the LL makes a reasonable effort to find a new T
The LL may only recover the difference between the rent they would have received had the old T paid rent and what was actually received from new T
TC shld consider (among other factors) whether LL, either personally or thru agency, offered or showed apt to prospective T’s, advertised it in local newspapers. T can rebut the evidence by showing that he proffered suitable T’s who were rejected
Each case shld be judged on its own facts as there is no standard rule of analyzing if LL has utilized satisfactory efforts to mitigate damages
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Prop
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