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Property Outline

4 present possessory freehold interests Fee simple absolute absolute ownership to A, or to A and his heirs Freely divisible can be left in a will Freely descendible passes to ones heirs if one dies intestate (without will) Freely alienable transferable inter-vivos, transferable on ones lifetime Is there a future interest? NO

Fee Tail product of history virtually abolished in the US today depended on this language to A and the heirs of his body passes directly to grantees lineal blood descendants no matter what would be accompanied by a future interest, could be accompanied by a reversion in O, or a remainder in some third party

Defeasible Fees (WILL BE TESTED) Fee simple determinable (grantor must use clear durational language) o to A so long as o to A during o to A until o If the condition is violated, forfeiture is automatic o Every fee simple determinable is accompanied by a possibility of reverted in the grantor (future interest) FSDPOR Fee simple subsequent to condition subsequent o To A but if X happens grantor reserves the right to reenter and retake o Grantor uses clear durational language AND explicitly carves out the right to reenter o Not automatically terminated if the condition occurs, but can by at the grantors option o Accompanied by the future interest right of entry/power of termination Fee simple subject to executor limitation o To A, but if X event occurs, then to B o Auto forfeiture to a third party o Future interest is called shifting executor interest and is owned by B

Life Estate must be measured in explicit lifetime terms: never in terms of years O conveys to A for life A if the life-tenant Os future interest is a reversion: at the end of the life tenants lifetime the estate reverts back to O or Os heirs Life estate per autre v life estate measured by a life other than the grantees: to A for the life of B The life tenant and waste doctrine o Life tenant must not commit waste, must not do anything that would hurt the future interest holders o Three kinds of waste Voluntary waste/affirmative waste overt conduct that causes a drop in value of the estate (willful acts of destruction) Permissive waste/neglect the land is allowed to fall into disrepair, must be a pattern of remiss and no need to improve Ameliorative waste life tenant engages in conduct that will enhance the premises value unless all future interest holders consent Life estate accompanying future interest for O is a reversion remainder arises when the future interest is held by a third party, i.e. to A for life and then to B

Future interests capable of creation in O the grantor possibility of reverter with fee simple determinable right of entry/power of termination with fee simple subject to condition subsequent reversion catchall whenever grantor or his heirs have something leftover after conveying a present estate

capable of creation in a transferee remainders after the preceding estate ends it becomes possessory, remainders never follow defeasible fees! o Vested: Created in a known taker AND Not subject to a condition precedent If vested it could be: Indefeasibily vested when its taker is known and not subject to any conditions: to A for life, then to B Vested remainder subject to complete divestment/complete defeasance: not subject to a condition precedent, but is subject to a condition

subsequent to A for life, remainder to B, but if B dies under 25 to C Vested remainder subject to open: remainder is vested in a group, category, class, at least one of which is eligible to take to A for life, then to Bs children. When A is alive and B has at least one child. When you see a group see if the group is open or closed. Class closes whenever any member can demand possession. o Contingent created in in as yet unknown takers, or subject to conditions precedent To A for life, then to Bs first child (B has no children) To A for life, and then, if B graduates from college to B executory interests cutting short another, or benefiting from anothers forfeiture o Shifting always follows a defeasible fee and cuts short someone other than O to A but if B returns from Canada next year, to B: B has shifting executor interest, not a remainder. Remainders never follow defeasible fees! o Springing cuts short O, the grantor O conveys to A, if and when he marries (if A is not married)

Doctrine of worthier title O, who is alive, tries to create a future interest in his heirs. O conveys to A for life, then to Os heirs. Would seem to be a life estate for A and Os heirs have a contingent remainder. Instead this voids the contingent remainder in Os heirs, instead A has a life estate and O has a reversion. Exists to promote the free transfer (alienability) of land

Dead rules Destructibility - Used to be that it was destroyed if still contingent when preceding estate ended Shelly rule - To A for life, then to As heirs. Used to be if A is alive the interests merge and this is a fee simple absolute. Now it is a life estate with contingent remainder for As heirs

RAP (limiting the dead hand) certain kinds of future interests are void, if theres a chance that the interest might vest more than 21 years after the death of a measuring life. Look for intervening generations! How to apply: classify your future interest o RAP only applies to certain contingent remainders, executory interests, and vested remainders subject to open o RAP never applies to future interests in O o RAP never applies to indefeasibly vested remainders, or vested remainders subject to complete defeasance What has to happen for a future interest holder to take Find a measuring life o Entity alive at the date of the conveyance whose life or death is relevant to the conditions occurring for the conveyance Will we know for sure within 21 years of the death of that measuring life if the future interest holder can take o If yes, the gift is good o If no, the gift is void

To A for life, then to As children (A is alive with no children) Contingent remainder (person is not ascertainable or subject to a condition precedent) indestructible unless he tells us otherwise. In jurisdictions that follow the doctrine of destructibility, a contingent remainder is destroyed if the condition precedent is not met by the time the previous estate ends. Also, with contingent remainders the grantor ALWAYS retains a reversion until the remainder vests. A has to die leaving a child A is the measuring life We will know who takes the estate as soon as A dies

Concurrent estates joint tenancy (can only be 50/50): two or more own with the right of survivorship o when one joint tenant dies his share automatically goes to the surviving joint tenants o alienable, you can sell it o not devisable or descendible because of the right of survivorship o Some judisdictions say leasing severs joint tenancy, others do not. Argue both. If the lease is present when property is meted out in a settlement, the lease stands. If property is leased then lessor dies, lease dies. If it is leased and one party is unhappy, can partition o Mortgages sometimes sever joint tenancy, sometimes do not. If it severs it remains an interest in the property, if it doesnt it dies with the joint tenant. o To create a joint tenancy you must meet the four unities the same time by the same title/instrument with identical interests with the right to possess the whole o In addition grantor must clearly state the right of survivorship o You can sever a joint tenancy by sale or partition Sale: buyer becomes a tenant in common (remaining joint tenants hold their joint tenancy) Partition: means available for co-owners to dissolve their relationship. Parties all agree, or partition in kind is a court action for a physical division in the best interest of all Forced sale by judicial declaration: court can order that estate is sold and proceeds divided if in the best interest of all parties tenancy by the entirety: marriage partnership with two partners, with the right of survivorship o creditors of only one spouse cannot reach this tenancy (Sawada) o neither tenant acting alone can defeat the right of survivorship by trying to sell to a third party tenancy in common (can be divided in misc. proportions): two or more own with no right of survivorship o each owns an individual part and has the right to possess the whole o no survivorship rights between tenants in common o each interest is descendible, devisable, and alienable o presumption always favors the tenancy in common Rights and duties of co-owners o Each co-owner is entitled to enjoy the whole, not matter his or her respective share o Each co-owner is entitled to his or her share of rental income from a third party

o Co-owner enjoys a proportional right to contribution during the life of the co-tenancy for any repairs that she reasonably makes. As long as you notify the co-tenant and give them an opportunity to object o No affirmative right to contribution for improvements at partition the improving co-tenant gets a credit equal to any objectively demonstrable increase in value due to her efforts. If improvements cause a drop in value, improving party will suffer a debit o Co-owners must not commit waste Voluntary waste/affirmative waste overt conduct that causes a drop in value of the estate (willful acts of destruction) Permissive waste/neglect the land is allowed to fall into disrepair, must be a pattern of remiss and no need to improve Ameliorative waste life tenant engages in conduct that will enhance the premises value unless all future interest holders consent

Landlord tenant General Vasquez: remedy must fit the circumsances. Migratn farm workers had contract that allowed them to be fired and not given ticket home. Court found inconscionable to summarily send someone out, with no chanve to find another place, etc. Also he couldnt speak English, and contract was in English. Equitable, unfair bargaining power, contract of adhesion. Opposite argument is freedom to contracy, individual autonomy, market operation. Movement from real property law to the law of contracts. Landlords are held to have a duty to mitigate damages in most states, although not traditionally. Discuss both. Can sublease if lease is silent. Policy of promoting alienability. Assignment: conveys all tenants remaining property interest and creates vertical privity Sublease: tenant retains some rights and does not create vertical privity

4 leasehold interests Tenancy/Term for years lease for a fixed period of time no notice needed to terminate at the end of the lease term of years greater than one year must be in writing per statute of frauds

Periodic tenancy continues for successive intervals until L or T give proper notice to terminate notice must be at least equal to the length of the period itself, unless otherwise agreed: maximum of 6 months notice required

Tenancy at will no fixed duration, lasts as long at both L and T desire still requires reasonable notice still

Tenancy at sufferance T has wrongfully held over past the expiration of the lease Lasts until eviction or creation of a new tenancy, short lived

Tenants Duties Tenants duty to repair: T must maintain the premises and make ordinary repairs T must not commit waste (all types) T must not remove fixtures once movable things that have been attached to the property and objectively show the intent to improve the property. This

includes things like the furnace, storm windows, lighting fixtures. This applies even when the Tenant installs it. Fixtures pass with ownership of the land. T must pay rent: if not landlord can evict properly, or continue the relationship and sue for rent due. Landlord cannot engage in self-help. If they do it is punishable civilly and criminally If T is not paying rent and is wrongfully our of possession. Three options: accept abandonment as surrender and accept it, ignore the abandonment and hold T responsible for the unpaid rent (majority rule requires that L tries to mitigate), re-let the premises on the wrongdoer tenants behalf and hold them liable for any deficiency.

Landlords Duties Duty to deliver possession at the start of the lease, repair damages, evict tenant, etc. Implied covenant of quiet enjoyment: implicit promise for all leases o Wrongful eviction o Constructive eviction (outside housing code or physical condition of premises) Must show substantial interference due to Ls actions or neglect. This must be regularly recurring, not necessarily permanently T must give L notice L must fail to act meaningfully T must vacate within a reasonable time after L fails to correct the problem Modern trend to require landlord to protect against the activity of other tenants, some similarities to 1500 Mass. Ave case Implied warranty of habitability (basics and housing code) o Only applies to residential leases o Non-waivable o Premises must be fit for basic human habitation: such as no heat in the winter, not running water, lack of adequate plumbing o T can move out and end the lease, repair and deduct the costs of these repairs from future rent, reduce or withhold rent until the court determines fair rental value (must usually be held in escrow), or remain in possession while paying rent but sues for money damages Retaliatory eviction o Landlord is barred from penalizing a good-faith whistleblower tenant o Some states place the burden of proving not retaliatory on landlord

Servitudes family of non-possessory interests Easement: grant of a non-possessory interest that entitles its holder to some form of use or enjoyment of anothers land Can be affirmative or negative, usually affirmative Affirmative is the right to do something on servient land such as placing utility lines or right of way Negative easement allows holder to prevent servient owner to do something that would otherwise be permissible. These are not automatic rights, must be expressly created in a signed writing. Only usually allow 4 categories: o Light o Air o Support (structural) o Stream-water from an artificial flow o Minority rule for scenic view Easements are either appurtenant to land or held in gross o Appurtenant (need 2 parties) when they benefit the holder in his physical use or enjoyment of his property. 2 parcels are involved, Dominant gets benefit of the easement, servient is burdened by the easement. Whittinsville Plaza Covenant creates an incentive for Plaza to purchase property and develop it. These types of covenants can run with the land if they are to benefit the orderly development of the land. Easement runs with subdivided land o B has an easement appurtenant to Bs dominant tenement o It only takes one to make an easement engross. Easement is engross when it gives its holder only some personal or commercial advantage, not related to his use or enjoyment of land. In these cases servient land is burdened, but there is no dominant land. Examples include the right to place a billboard on anothers lot, right to fish or swim in anothers pond. o Appurtenant easement is transferred automatically with the dominant tenement. o Easement in gross in not transferrable unless it is for commercial purposes. 4 requirements to create an affirmative easement o prescription an easement may be acquired by meeting the requirements of adverse possession (Granite Properties) Continuous, open and notorious, actual, and hostile o implication easement implied by existing use A owns two lots that use one sewer drain, sells one without granting use of drain. Court may imply an easement if the previous use was apparent, and the parties expected that it would survive division

o Necessity grantor conveys part of his land with no way out except over part of grantors remaining land o grant in order to endure for more than a year, must be in a writing Scope of an easement is set by the terms or conditions that created it. However, per Green v Lupo a servient owner is entitled to impose reasonable restraints on a right of way to avoid a greater burden on a servient owners estate than that originally contemplated in the easement grant, so long as such restraints do not unreasonably interfere with the dominant owners use. No unilateral expansion the easement does not get expanded when circumstances change scope is determined by the kind of grant, if there is an unreasonable burden, and whether the easement can be subdivided. Termination of easements o Created by necessity will expire as soon as the necessity ends o Estoppel doctrine servient holder makes a material change in reasonable reliance on the easement holders assurance that the easement will not be enforced. o Easement holder can give written release by easement holder to servient owner. o Abandonment easement holder must show by physical action the intent to never use the easement again o Merger doctrine easement ends when title to the easement and title to the servient land become vested in the same person o Prescription servient owner may extinguish the easement by interfering with it in accordance with the elements of adverse possession

Riparian land rights 3 rules developed through state common law o common law rule that water is the enemy, no liability o natural flow rule says liability for any disruption of the natural flow of water o Reasonable use rule court will look at factors to determine reasonableness

License Profit mere privilege to enter anothers land for some delineated purpose not subject to the statute of frauds licenses are freely revocable unless estoppel applies to bar revocation tickets are freely revocable licenses seemingly oral easements create instead freely revocable licenses Estoppel bars revocation when the licensee has invested substantial money or labor or both must be reasonable reliance on endurance of the license

entitles its holder to enter servient land and take from it the soil, or some resource thereupon profit shares all the rules of easements

Real covenant to do or not do something related to land, a mere contract restrictive covenants is a promise to refrain from doing something related to land i.e. I promise not to build for commercial purposes affirmative covenant is a promise to do something related to land i.e. I promise to paint our common fence How will you know if it is a covenant or an equitable servitude? When your plaintiff wants money damages construe as a covenant. When your plaintiff wants an injunction construe as an equitable servitude. In covenant parlance one tract is burdened and another is benefitted Covenant runs with the land when it is capable of binding successors A promises B that A wont build for commercial purposes. A and B sell their parcels. A1 starts to build a business, B1 sues for money. Start with burdens: o Writing original promise must be in writing o Intent original parties intended that the covenant would run (easy) o Touch and concern the land must affect the parties as landowner and not simply as members of the community at large o Horizontal and vertical privity A and B had to be in succession of a state. A and B enjoyed a grantor-grantee (one bought one from the other) or landlord-tenant or mortgager-mortgagee relationship when the promise was made OR that A and B also share some other servitude. HARD TO ESTABLISH HORIZONTAL PRIVITY. Vertical privity merely requires some non-hostile connection (contract, devise, or descent) only absent if taken by adverse possession o Notice A1 must have had notice of the promise when she took If the burden runs from A to A1, look to see if the benefit runs from B to B1 o Writing original promise was in writing o Intent Original parties intended that the benefit would run o Touch and concern the land o Vertical privity no need for horizontal privity If all we see is A made a promise to B and B sells to B1, all we need to look at is if the benefit runs with the land Racially restrictive covenants are no longer enforced. Shelly changed this, although Evans allowed private property to be taken out of city trust if it does not transfer property from one party to another

Equitable servitudes injunction is remedy to create an equitable servitude that binds successors you need: o Writing o Intent

o Touch and concern the land o Notice successors of burdened land had notice of promise o NO NEED FOR PRIVITY General or common scheme implied equitable servitudes o When the sales began there was a general scheme to develop the lot in a certain way o Defendant lot holder had notice of the promise contained in prior deeds Actual notice Inquiry, neighborhood conforms to a common restriction Constructive: Record, imputed to buyers due to public records. Some jurisdictions have notice of all restrictions transferred by the grantor of their property o Will grant a restriction on a deed that was never restricted Defense to equitable servitudes is doctrine of changed conditions o Equitable servitude may be terminated when change has so infected the given area as to render the purpose of that servitude moot o For example restriction on building for commercial purposes, but the area is all commercial now

Adverse Possession fact specific, be sure to lay out chronologically Possession for a statutorily prescribed period of time can ripen into title o continuous/uninterrupted for statutory period - must compare land use during the statutory possession period to an average owner of similar property cultural norms matter! o open and notorious activity must put a reasonably diligent owner on notice. Once physical presence is established, community repute is also relevant o actual/entry must be literal o hostile/possessor doesnt have owners permission state of mind, adverse possessor as well as the owner. Permissive cannot be hostile. In adverse possession there is a presumption of hostility, but in prescriptive easements there is a presumption of permission (in most jurisdictions) o exclusive o statutory period look at if land is being used productively, and adverse possessors act like true owners Color of title can go towards actual possession and statutory period elements Claim of right goes towards hostility element (acting like its your own is usually good enough, but some places want you to believe its yours) you may tack onto a predecessors as long as there is vertical privity, non hostile nexus

purchase and sale of land every conveyance involves two steps o land contract must be in writing by party to be bound - statute of frauds doctrine of part performance exception: any two of three; b takes possession, pays all or part of the price, makes substantial improvements must describe the land must state some consideration risk of loss in equity, once contract is signed B owns land subject to the condition that he pays the balance due at closing. If between contract and closing land is destroyed and neither party is at fault B bears risk of loss unless land contract says otherwise Seller impliedly provides marketable title at closing (title free from reasonable doubt, lawsuits and the threat of litigation) Unmarketable if there is adverse possession o Majority rule is that seller must provide good record title, which means no adverse possession

Encumbrances must be unencumbered fee simple, no servitudes or liens unless waived by buyer Violation of a zoning ordinance Seller promises not to make any false statements of material fact also liable for failure to disclose latent material defects o Deed- passes legal title from seller to buyer Lawfully Executed deed was in writing signed by grantor Delivered literal transfer of deed to grantee, delivery can be accomplished as a legal standard (grantor has shown the present intent to be immediately bound) If a deed is transferred with an alleged oral condition the oral condition typically drops out Three types of deeds Quit-claim no covenants, might not be good title General warranty deed warrants against all defects in title, including those attributable to grantors predecessors. 6 covenants o Present covenants: if breached, at the time of delivery. Statute of limitations for breach begins to run from delivery Covenant of season grantors promise he owns state Right to convey grantor has the power to make this transfer, sound mind, requisite age, etc Covenant against encumbrances grantor promises no servitudes or liens o Future covenants: not breached until grantee is disturbed in possession (that is when statute of limitations begins to run) Covenant for quiet enjoyment no disturbance by a third partys lawful claim of title Grantor promises to defend grantee against lawful title claims Covenant for future assurances grantor does whatever is needed to do in the future to perfect the title Statutory special warranty deed o Grantor promises that he 1) hasnt conveyed to another, and 2) free from encumbrances made by grantor o Recording system for deeds All about rooting out the double dealer

Need to check he time between when O sells to A and A records deed, were there any encumbrances put on the property by O? If B is a bona fide purchases in a notice jurisdiction, B wins regardless of whether B records before A If B is a bona fide purchases in a race notice jurisdiction B wins if she records properly before A Have to prove that you are a bona fide purchaser Paid substantial pecuniary value, recording statutes do not protect donees or devisees, or intestatancy Three forms of notice Actual notice Constructive: Inquiry, whatever could be determined by an inspection Constructive: Record notice, if at the time B takes, A had properly recorded their deed Notice jurisdictions - B wins without any notice Race notice system B wins if he has no notice and he wins the race to record his deed Race system It is all about the race to record your deed o Chain of title is arrived at through a search of the grantor-grantee index Wild deed O sells to A, does not record: A sells to B and B records. Missing link in chain of title so incapable of giving record notice of its content Estoppel by deed one who conveys deed without ownership, who later buys a property, must recognize the earlier conveyance Eminent domain 5th amendment power to take private property for public use, in exchange for just compensation takings o Explicit takings overt exercise o Regulatory takings - Government regulations that was not intended to be a taking, but nonetheless has the same effect Per se takings Permanent physical occupation (Loretto) Taking the total value of property Ad hoc test Economic impact of regulation Interference with investment backed expectations Character of the gov action (reasonable?) o Characterizing gov action, does the gov prevent this use of property regularly? Is it obscene for the gov to try and prevent harm this way? o If there has been a taking, was it regulatory or eminent domain? Does public use apply? Be sure to go through statutory and constitutional considerations. Necessary, a public

improvement; advancement of the public corporations purpose; or for a public purpose within the scope of the public corporations powers. Also, the proposed condemnation must be for the use or benefit of the public. Mich consti. Required public use; railroad, utility, removing slum. Must maintain oversight Public use not limited to economic development, however states can and do Was there just compensation? Zoning pursuant to state and local government police powers, government may enact statutes to reasonably control land use o Variance is the principle means available to achieve flexibility in zoning o Area Variance allowable use that presents a problem of ill fit. Proponent must show undue hardship and that the variance wont work detriment to neighboring property values (setback, height) o Use variance permission to depart from the list of allowable uses in a given zone. Proponent must show special circumstances o Zoning board makes decisions, appealable to courts o Non-conforming use is a once lawful use now non-conforming because of a new zoning ordinance. Cannot be eliminated all at once unless just compensation is paid o Exactions amenities the government seeks in exchange for granting permission to build to pass constitutional scrutiny, any exactions must be reasonably related in nature and scope to the impact of the proposed development

Rights discussions/balancing interests Justice, freedom of action, security, value Social utility, clarity of investment, promoting general welfare, competition

ALWAYS TALK ABOUT THE RULES V STANDARDS BALANCE NUISANCE Is there a nuisance? What is the remedy? Does not have to be negligence generally protective and applicable to any area that is not regulated (either by regulation or statute) States are often slow to codify protections against newly regulated harm, i.e. a small but growing town with no zoning rules Other times legislative bodies are not able to codify these protections Interfering with your right to quiet enjoyment is a type of nuisance

In evaluating nuisance factors, courts consider both fairness and welfare. On the fairness side courts will consider:

1. 2.

3.

The character of the harm: Aesthetic harms will be viewed as less serious than health and safety concerns. Distributive properties: Is it fair to make an individual owner bear the costs of defendants socially beneficial activity, or should those costs be spread around to the owner causing the damage and its employees and customers? Fault: Is one of the owners engaged in a disfavored activity? Is the conduct appropriate for the area? Did the plaintiff come to the nuisance?

On the welfare side, courts will consider: 1. 2. Costs and benefits: The costs and benefits of allowing the harmful conduct must be compared with the costs and benefits of prohibiting it. Incentives: What effects will liability or immunity have on incentives to engage in the respective activities? How will the distribution of the burdens and benefits of conflicting land uses affect incentives to invest in safety or to engage in desirable economic activity? Lowest cost avoider: Which party can more cheaply avoid the cost? Should this party also bear the burden of paying the cost?

3.

Nuisance in the courts The definition of a nuisance is that the conduct is both unreasonable (causes more harm than good) and causes substantial harm. This conduct cannot always be enjoined, and is sometimes remedied with money damages. Actions can be reasonable on a social level, but unreasonable between two parties (cement plant right next to a house). Therefore you can keep the social benefit while compensating the one family that is being disproportionately affected. A possessor of land upon which a third party carries on an activity that causes a nuisance is subject to liability for the nuisance if(a) the possessor knows or has reason to know of the activity and (b) he consents to the activity or fails to exercise reasonable care to prevent the nuisance. (tab 381 for nuisance relief, 378 for balancing test: reread 376-383) Intent in nuisance if defendant knew, or should have known the harm could be caused. Use Singer test, focus on substantial interference that was unreasonable. Fountainbleu no right to natural light

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