I. Trespass Remedies, injunction or damages nominal if no damage, compensatory if damage.

e. An intenational entry upon property possessed by another that is not otherwise privileged. Homeless Person in store HYPO PLAINTIFF ARGUES Current policy prohibits discrimination Common law rule unfair Common Law: Innkeepers & Common carriers must provide access Dept. store provides same services As innkeepers providing shelter II. DEFENDANT ARGUES Reject Uston rule Retail store is not in business Of taking care of homeless NO SPECIAL DUTY Stick to precedent majority rules Binding and persuasive Innkeepers & common carriers are in business also not free stay.

Nuisance Absolute security v. absolute freedom Remedies, injunction or damages. - The CONSEQUENCES of someones actions as in when the actions produced an unforeseeable

consequence A nuisance is an intentional act or omission on one's own property which causes a substantial and unreasonable interference with another's use or enjoyment of their property. Georgia courts have adopted the "reasonable use" test to determine whether one commits a nuisance by expelling surface waters onto a neighbor's property. Under this flexible test, it is for the jury to determine in the particular case whether the expulsion of water was unreasonable, taking into consideration (1) the benefits of defendant's activity to society, (2) the cost of mitigating or avoiding the harm, and (3) the amount of harm to the plaintiff's property. DEFENDANT PLAINTIFF Common Enemy Reasonable Use Social Utility(greater public use) Preventing development Efficiency Argument Judicial Resources Everybody knows but they are still Going to carve out the exceptions and Costs more in the long run. Exceptions - a. hypersensitive use Cause of action for negligence the acts themselves. In order to establish a prima facie case for negligence there must be clear and convincing evidence of a duty, breach of that duty, causation and damage A. Lateral Support 1. strict liability neighbor has absolute duty if he fails to support the land w/o structures (Price v. Noone) or 2. negligence reasonableness or unreasonableness of defendants CONDUCT a. reasonable construction methods b. notification of neighbor c. reckless/wanton with intent to harm Subsidence (crumbling away) NEIGHBORS ARGUMENT DIGGERS ARGUMENT 1st in time rule Right to Use Fairness (anticipate youll have neighbor) Fairness Security (societys good) Efficiency (encourage property investment,etc) B. Subjacent Support- cant be waived by contract Right to Dig v. Right to Support To use at your benefit to the detriment of another does not Make sense (Not greater good) Efficiency Defendant making a profit

New Rule: Negligence: Willfully wasteful malicious conduct is proximate cause of subsidence of others land, he will be liable for the consequences of his conduct. C. Light and Air - No lawful right to land and air (Foutainbleau v. Forty-Five) Light Prah v. Moretti Coase thereom no bad actor, no innocent party, joint costs, the parties would bargain the price, always have transaction costs, whoever values the entitlement more should pay RESTATEMENT SECOND OF TORTS Defines land use unreasonable, extent, character of harm, social value, locality (suited to use), burden on person harmed REMEDIES FOR NUISANCE Injunction, damages, purchased nuisance CURRENT NUISANCE LAW IN THE COURTS A. PL may obtain injunction against DFs conduct when: DF conduct is unreasonable (cuases more social harm than good) DF conduct causes substantial harm to PL B. PL may obtain damages but no injunction if: DF conduct is reasonable (causes more good than harm) BUT the harm to PL is substantial so that it is UNFAIR to burden DF With the costs of DF socially useful conduct. C. PL is entitled to NO REMEDY if: Harm to PL is not substantial OR Same as B above OR The imposition of damages would put DF out of business and Avoiding this is more important than preventing harm to PL. D. PL is entitled to a Purchased Injunction if: DF conduct causes more harm than good; but it is fair to impose the cost of shutting down PL activity III. Adverse Possession Clear and Convincing Evidence (Brown v. Gobble) Adverse/Hostile (Nome v. Fagerstrom) State of Mind Approaches a. Objective actual possession b. Claim of Right appropriate and use as ones own c. Intentional Dispossession must be aware of the occupation and INTEND to oust the title holder.d. Good Faith innocent possessors who mistakenly occupy the property. Actual POSSESSION, Open & Notorious, Exclusive, Continuous, for the statutory Period - Claim or color of title (some jurisdictions) - Property Taxes paid (some jurisdiction) IV. Prescriptive Easement (Community Feed Store) Adverse & Hostile, Actual USE, Open & Notorious, Continuous, Statutory Period - No exclusivity V. Easement by Estoppel (Somerville v. Jacobs) Irrevocable license = Easements by Estoppel It started out as a license, but evolved (ripened) into an Easement 1. Defendant must originally give permission 2. Plaintiff has invested substantially 3. In reasonable reliance on the license 4. Denying continued use would be unjust. VI. Easements Implied From Prior Use there was common ownership over the parcels at some time before conveyance. 1. Apparent & Obvious 2. Permanent 3. Continuous & Uninterrupted 4. Continued Use is Necessary & Beneficial 5. Unity of Title 6. One part for benefit of another VII. Easements by Express Agreement Interpreting Express Agreements 1. Intent of the parties 2. Presumption Public Policy the court will want it to be appurtenant instead of in gross.

VIII.

XI.

1. Must be in Writing signed by the grantor. 2. Intent of the parties a. Expressed b. Implied 3. Notice a. actual b. constructive c. inquiry A. Appurtenant The benefit runs with the land to benefit the dominant estate and burden the servient estate B. In Gross There is no dominant estate The easement is only a burden on the servient estate and the easement is personal (ex. Phone lines are personal to the phone companies) C. Restrictive Covenants D. Misuse of Easements 1. Use is the kind contemplated by grantor 2. heavy use constitutes undue burden 3. can be subdivided Equitable Servitudes agreeing not do something on your property 1. Must be in Writing 2. Intended to bind and run with the land 3. touch and concern 4. Notice a. actual b. constructive c. inquiry Real Covenants agreeing not to do something Express Agreement only occurs at the transfer of property interest Land use restrictions run with the land when: 1. Must be in writing 2. Intended to bind and run with the land 1. that the covenant is made to the grantor or grantee and their assigns and heirs and/or 2. that it is intended to bind future owners of the parcel described in the deed or explicitly states that the covenant is intended to run with the land. 3. If no express language courts may infer intent so long as it is the kind of promise courts believe that dominant estates want to bind servient estates. 3. Touch and Concern (Unpopular with the courts Third Restatement does away with it and courts generally lean toward a reasonableness test) 4. Privity of Estate a. horizontal privity regulates the relationship between the original covenanting parties. b. vertical privity the relationship between the original covenanting parties and subsequent owners of each parcel. Modifying and Terminating Contracts 1. Changed conditions El Di 2. Relative hardship Equitable Defenses to Equitable Servitudes and Covenants pg. 418 1. Acquiesence 2. Party bringing suit has violated the restriction himself (unclean hands) 3. Abandonment 4. Interpretation of language 5. Merger 6. Release 7. Prescription ignoring for the statutory period, then it becomes unenforceable. 8. Estoppel 9. Laches

X.

XI.

XII.

Interpretation of Ambiguous Covenants EXAM in order to answer an exam question. 1. Is the covenant enforceable? - clear and unambiguous, if not then 2. What does the covenant mean? - plain language - intent 3. Discuss Tradition v. Restatement III a. Traditional narrowly construing the covenants so as not to unduly burden property. b. Restatement III security, uphold covenants 4. Defenses a. Changed conditions doctrine a fundamental change has occurred in the intended character of the area that renders the benefit incapable of enjoyment b. Relative Hardship if the benefit to the dominant estate is not as great as the hardship for the servient estate, then the covenant will not be enforced and damages will be given. However, if the hardship for the dominant estate is greater than the hardship of the servient estate then the covenant will be enforced. Implied Reciprocal Negative Servitudes 1. Grantor Covenant Binds both the seller and the buyer 2. Grantee Covenant Binds only the buyer 3. Common Scheme/Plan Intent by grantor to create a common scheme and that it arose. Enough of them attached to the deeds and are restricted to show a common scheme Modifying and Terminating Covenants 1. Agreement 2. Release 3. Both estates came back under the same owner.

ESTATES I. Present Possessory Estates A. Fee Simple Absolute lasts forever- O to A & his heirs B. Term of Years think of a lease - O to A for (specific time period) C. Life Estates not favorites of the law - O to A for life D. Fee Tail NOT COMMON and largely done away with - O to A & the heirs of his body II. Limitations on Fee Interests Can apply to all Present Possesory Estates A. Fee Simple Determinable - O to A for as long as is used as a group home rights of revert B. Fee Simple Subject to Condition Subsequent - O to A, but if the property is used for anything other than a group home then O shall have a right of entry. C. Fee Simple Subject to An Executory Limitation Involves any and ALL transfers which include a third party - O to A for life as long as the property is used as a group home, then to B Executory Interest III. Future Interests to Present Possessory Estates that End Naturally A. Life Estates In Grantor: reversion In third party: remainder - 1. Are the remaindermen ascertainable?2. Any precedent conditions? (a) vested remainders 1. yes 2. no (i) absolutely vested remainder (ii) vested remainder subject to open O to A for life, then to Bs children - the class remains open as long as B is alive (iii) vested remainder subject to divestment O to A for life, then to B, but if B has flunked out of law school, then to C- remainderman Bs interest can be taken away before possession can occur (b) Contingent remainders

(i) condition precedent 1. yes or no 2. yes (ii) unascertained person 1. no 2. yes or no RAP Traditional Rule No interest is good unless it must vest, if at all, no later than 21 years after the death of some life in being at the creation of the interest. Applying the Rule 1. Identify interests subject to the rule - It applies to non vested interests only Executory Interest, Contingent Remainder, Vested Remainder Subject to Open 2. Determine whether the future interest is valid or invalid - The perpetuities period is the time between the creation of the interest and 21 years after the death of the last person alive at the creation of the interest. a. Creation of the interest a future interest is created by at the time of the conveyance. b. Vest The vesting moment is generally the moment when the contingency occurs that renders the interest certain to occur. 3. Remedy for violating the Rule the remedy for violating the rule is simply to strike, or cross out, the offending language. O to A for residential purposes, then to B violates the rule, strike out then to B which leaves you with - O to A for residential purposes (Fee Simple Determinable) Modern Modifications (a) Wait and See (b) Equitable Reformation or Cy Pres (as close as possible)(c)Statutory Cut-Offs for Possibilities of Reverter and Rights of Entry (b) Marketable Title Acts(c) Uniform Statutory Rule Against Perpetuities (d) Abolition of the Rule - At least 15 states have abolished or substantially altered the rule