ESTATES

Question 1

Fixtures:

• Ownership of fixtures:
• Determining if chattel becomes fixture:
  
  • TIP
• ​Trade Fixtures:

Answer 1

Fixtures:

• Chattel that becomes part of real prop:
  
  • E.g. wall to wall carpeting, appliances = not fixtures
• Passes w/ realty whenever:
  
  • conveyed by deed, intestacy, will, adverse possession, mortgage, foreclosure, or eminent domain.
• Person who formerly owned the chattel:
  
  • Loses title to that prop
  • Passes to new owner of realty
• CANT remove = personal property essential to utility of a fixture
  • E.g. hose or attachments to central vacuum system

Determining if chattel becomes fixture: TIP

• T: TYPE of chattel that generally becomes part of the realty
  
  • E.g. water heater, mailbox, storm windows, shutters, awning, etc.
• I: INTENT of person installing the chattel
  
  • If land & chattel had common owner = presumption intended as fixture.
    
    • E.g. Chandelier could be a fixture if installed by owner
  • Leasehold: T’s easily detachable fixtures:
    
    • Presumption = not intended to become part of real prop.
  • NOTE: Preserve the right to retain those things in K!
• P: PARTIES relationship
  
  • E.g. Landlord-tenant, or life tenant remainder-men

Trade Fixtures = presumed removable by Commercial Tenant:

• Any chattel attached by commercial tenant
  
  • E.g. counter, stoves,
• If lease terminates or landlord sells realty, or foreclosed:
  
  • Trade fixtures can be removed by commercial tenant
  • Even though annexed to the realty
• HOWEVER:
  
  • 1) MUST be removed prior to termination of the leasehold
    
    • IF NOT = fixtures revert to landlord
  • 2) Any damage done in removing fixtures = repaired by tenant
  • 3) CANT be removed if it would cause subst damage to leasehold

Creditor w/ interest in commercial fixtures MAY remove them:

• Even if it would cause subst damage
• IF secured party posts bond to insure damage is repaired

Question 2

**Lateral Support: **

• NY:
• MBE:

Answer 2

**Lateral Support: **

• Land is entitled to lateral support from neighboring land:
  
  • when neighbor’s excavation weakens lateral support to neighbors land

NY:

• Requires showing of negligent excavation IF:
• Collapsed land contained artificial structure that increased pressure on land, AND
• Land would NOT have collapsed but-for the extra weight of artificial structure:
  
  • THEN = must prove negligence in the excavation

MBE:

• Absolute strict liability is imposed in IF:
• Adjoining land in its natural state would have collapsed b/c of excavation
  
  • E.g. A’s structure fell into B’s excavation:
    
    • If A’s land would not have collapsed if there was not building on it = B is NOT strictly liable in MBE
    • A must prove B’s negligence in excavation
  • However:
    
    • if A’s land would have fallen if there had been no building on the land = B is strictly liable

NY:

• As soon as excavation exceeds 10 feet = NY imposes strict liability
  
  • Regardless of whether land would have collapsed in its natural state

Question 3

Water Rights:

• Reasonable Use:
  
  • SPUD
• Commercial Use:

Answer 3

WATER RIGHTS:

• Landowner’s use of flowing waterway MUST be reasonable:
  
  • I.e. brook, river, stream
• Upstream owner can reasonably use water supply
  
  • Even if it decreases supply to downstream owners
• Reasonable use = each land on river gets “some benefit” of the water
  
  • CT looks to SPUD:
  • S: SIZE of waterway
  • P: PURPOSE for using the water
    
    • And resulting harm to others from that use
  • U: How much water is being USED by landowner:
  • D: DURATION of that use
    
    • How long has landowner been using water that way

New Commercial use that Deprives surrounding residential lands of water: =

• NOT reasonable:
  
  • I.e. new manufacturing plant drilled for water, cutting off to nearby homes
• HOWEVER:

If Commercial use existed for 8 years:

• AND a drought caused the water shortage:
  
  • THEN = Reasonable use
    
    • E.g. B created dam - damaged A’s upstream prop
      
      • A’s remedy =cause of action for trespass
• HOWEVER:
  
  • B has no duty to abate a condition that is purely natural in origin
    
    • e.g. Beaver dam on his property

Question 4

Riparian Rights:

• Boundaries of title:
  
  • Waterway Having Tides:
  • Internal Stream or Pond:

Answer 4

Riparian Rights:

• Landowners contiguous to a defined waterway having tides:
  
  • (ocean, or great lakes):
• 1) Owner has title down to high-tide water mark: AND
• 2) Easement below the high water mark:
  
  • ​to gain access to waterway & reasonably use the water
    
    • Regardless of who owns the water
    • E.g. launch a boat, dredge or use the water

If land is located on an internal stream or pond:

• Title to land = goes underwater out to middle of that waterway
  
  • E.g. to center of pond

Question 5

Diffuse surface waters:

• 3 theories for diffuse waters:
  
  • NY Liabilty & Restrictions:
• Restat of Torts: Surface waters = Tort of Nuisance:

Answer 5

Diffuse surface waters:

• From Rain melting snow, or underground springs that surface BUT do NOT form part of defined waterway

3 theories for such diffuse waters:

1) Natural Flow Theory: a/k/a: Civil law theory

• Prohibits upstream owner from using water in any way that alters natural flow (quantity, velocity, quality)
  
  • causing damage to neighbors prop
  • Each owner is entitled to an easement of flowing surface waters

2) Common Enemy Doctrine: (15 states) Opposite of Natural Flow

• Landowner may do anything to prevent water from entering land
  
  • Surface waters = enemy

3) Reasonable Use theory: (NY & maj)

• Allows landowner to reasonably alter the flow of surface waters
  
  • in good faith
  • to reasonably use her land for domestic or natural use
• UNLESS: alteration unreasonably interferes with neighbors prop
  
  • Tort of Nuisance
• **NY landowner CANT **Channel waters onto neighboring prop:
  
  • By Artificial means (pipes, ditches)
  • BUT:
    
    • Adding pavement to NY prop = NOT artificial means
• NY = Strict Liability for damage to neighboring land IF:
  
  • Drain, ditch, or pipe was used, OR
  • Water was stored on prop & then discharged all at once.
    
    • CT will look at why, and how you diverted water, AND
    • Alternatives or a good faith reason for use

Restat of Torts: Surface waters = Tort of Nuisance:

• Interfering with flow of surface waters is permissible
• UNLESS:
• unreasonably interferes w/ neighbors use and enjoyment of her land.