My life is a joke, but not as much of a joke as this professor

Question 1

Servitudes

Answer 1

Give someone not in possession of property the right to use the property in the way they would like to use the property

Question 2

Types of servitudes

Answer 2

Easements and covenates run with the land

Minor types are licens and profit

Question 3

Easment

Answer 3

Legally enforceable right other than someone possessing property to use the property

Question 4

Types of easements

Answer 4

Appurtenant

Benefit in gross

Question 5

Easement appurtenat

Answer 5

Benefits specfic other property (for the benfit of other property)

If creation is ambiguous, courts constue this instead of in gross

Question 6

Easement Benefit in gross

Answer 6

Benefits an individual or class of persons whether they own property or noyt

Question 7

Servient tenenment

Answer 7

Property subject to an easement

Question 8

dominant tenement

Answer 8

If Easement Appurtenant – other property benefited is the Dominant Tenement

Question 9

Profit servitude

Answer 9

that person has the right to use property possessed by another by removing some product that is attached to that property e.g. timber, minerals, soil, gas, rocks…

Question 10

License servitude

Answer 10

interest in property owned by another—generally identical to easement EXCEPTIONS (1) can be created orally- generally interests must be in writing for over 1 year BUT license enforceable regardless (2) licenses are revocable at any time. May not be revoked if (1) if license coupled with interest—incidental with ownership of some chattel that is on the licensor’s land. Licensee owns something on the other persons land. (2) if licensor is estopped—beneficiary of the license in reliance on the license has taken certain actions which the licensor knows all about, such that it is inequitable to allow the licensor to take away the license. Think of it conceptually as an Easement At Will – not a real term. (CL DOCTRINE OF LICENSE). CONSENSUAL AND NEVER IMPLIED.

Question 11

○ Kitchen v. Kitchen, SC of MICH CM 13- Licenses:

Answer 11

oral license for irrigation system

License: Revocable at will and is automatically revoked upon transfer of title by either the licensor or licensee

Question 12

Michigan rule of licenses

Answer 12

o In MICHIGAN interest in property for greater than a year must be in writing because of the SOF– this oral license purported to create interest of more than a year and because not in writing is revocable. Michigan doesn’t follow CL rule of licenses!→ SO ALWAYS REVOCABLE!

Question 13

Three ways to create an easement

Answer 13

Express
Implication
Prescription

Question 14

Express easement

Answer 14

○ Express Easement: Created by written instrument where the owner of the servient tenement is granting easement either to the beneficiary or the owner of the dominant tenement. Signs a piece of paper (e.g. deed of easement). Owner does not retain the servient tenement.

Question 15

Reservation

Answer 15

If provision inserted in a deed by which the owner of the servient tenement is transferring the servient tenement to someone else, and the deed reserves the easement, then they can reserve the easement out of what they are transferring to someone else. (I want to cross this land every Thursday)

At CL: it was perfectly OK to do that as long as the reservation was reserving an easement in yourself. E.g. you own next door property but I am reserving an easement across it to get from property to the street. Could not reserve an easement in favor of a third person.

Question 16

Exceptions to easments

Answer 16

if there is a preexisting easement crossing the servient tenement and the owner of the tenement transfers it to someone else, the easement gets transferred. The easement recognizes a pre-existing tenement on the servient tenement. Can’t transfer more than you have –Must transfer prop encumbered by easement.

Question 17

b. Willard v. First Church of Christ, Scientist p. 491- Creation of Express Easement (reservation & Exception):

Answer 17

deed reserved an easement to third party (Church)

REJECT CL and allow reservation of easement in a third party.

grantor in deeding property to one person MAY EFFECTIVELY reserve and vest an interest in the same property in a third party.

Question 18

Implied easementq

Answer 18

Implied by prior use:

trying to effectuate INTENT of the grantor even though not expressly in the deed.

Question 19

Prior use requirements

Answer 19

Severance
In fact prior use
Visiable and apparent
Necessary to dominant tenement

Question 20

Severance

Answer 20

Severance of commonly owned parcels- owner originally has big piece of property and is selling some of the part of property (part of grantor’s property

Question 21

prior use

Answer 21

Before conveys part of property, there was in fact Prior use that would constitute easement if parcels were not commonly owned (Quasi-easement- can’t have easement across your own property)

Question 22

Apparent prior use

Answer 22

Prior Use was apparent – e.g. visible, readily discoverable by reasonable inspection.

Question 23

Majority reasonable necessity implied easement by use

Answer 23

Reasonable Necessity – MICHIGAN- easement has to be beneficial to the benefited tenant (dominant tenant)

Question 24

Minority easement prior use

Answer 24

Strict necessity- dominant parcel really can’t be used unless it gets the benefit of the easement.

Question 25

b. Van Sandt v. Royster p. 501 – Easement by Prior Use:

Answer 25

Whether there is an implied easement on certain property will be inferred from the intentions of the parties, and such inference will be drawn from the circumstances under which the conveyance was made. Parties to a conveyance will be assumed to know and to contemplate the continuance of necessary uses which have so altered the premises as to make them apparent upon reasonably prudent investigation.

Meets all four reqs

4. Necessary → Yes, applied reasonable necessity test—whether lots in the land could be used without disproportionate effort and expense if they didn’t get the easement. MAJORITY RULE. Should have reasonably known that lot 20 was connected to the same sewer line.

Question 26

Easement Implied by Necessity

Answer 26

• • Intended to EFFECTUATE intent to grantor—access is essential to most land. When land is divided created land-locked property, it is presumed that the parties intended that the land-locked party would have access by an easement.
• • Public Policy- makes land more marketable, productive, value of easement is much more than the value of the land to the servient.

Question 27

Implied necessity requiresments

Answer 27

Severance of Commonly owned parcels-
Deed conveys part not all of person’s property. Easement is Necessary to Dominant Tenement.
MAJORITY : Strict Necessity- MICHIGAN
MINORITY: Reasonable Necessity

Necessity Existed:
1- At time of severance
2- At time easement sought- continues to exist NOW ** Only endures so long as it is necessary

Question 28

1- Easement by Prior use v. Easement by Necessity:

Answer 28

1- Easement by Prior use v. Easement by Necessity:
○ BOTH: require severance, showing of necessity although
→ Prior Use: reasonable necessity, need prior use
→ Necessity: strict necessity (land locked), does not require any prior use- no quasi easement. Evaporates when necessity goes away.

Question 29

2- Othen v. Rosier p. 508- Easement by Necessity & Prescription:

Answer 29

: In order to create easement by necessity, necessity must have existed at the time that the estate was created.
○ Unless you can prove that the necessity existed at the time of severance, then you lose your case!

Question 30

Othen claim of right issue

Answer 30

3- Claim of Right—NO, because the owner of the path granted permission by constructive permission—the gate was left open so he could come and go—Δ’s controlled the gate!
○ Permission can be granted (1) orally (2) written and neither of those was alleged BUT Constructive permission! → Gate had been there since 1906 so clearly he controlled the gates from 1906 on but Othen said path was there before the gate (at least 10 years).

Question 31

Prescriptive easement

Easement by prescription

Answer 31

a manner of acquiring an easement in another’s property by continuous and uninterrupted use in satisfaction of the statutory requirements of adverse possession

Question 32

Reqs for prescriptive easement

Answer 32

b. Requirements for Easement by Prescription:
1- Actual Use
2- Exclusive
3- Open and Notorious
4- Under Claim of Right
5- Continuous for Statutory Period – AP period → MICHIGAN for 15 years.

Question 33

c. Concept of Consent in Claim of Right:

Answer 33

○ Acquiescence DOES NOT bar an easement by prescription but permission does

Question 34

prescriptive easement writing

Answer 34

– unilateral grant of permission defeats a claim of prescriptive easement

Question 35

How to distinguish between affirmaive grant of permission

Answer 35

○ How to distinguish between affirmative grant of permission and acquiescence :
1- Orally- but he said she said problem—hard to prove unless in presence of third party.
2- Writing – unilateral grant of permission defeats a claim of prescriptive easement
3- Constructive Permission: whether a claimant of prescriptive easement can establish claim of right will depend on where the court puts the burden of proof with regards to this element! Fiction of the Lost Grant-if somebody was going across someone else’s land for a long period of time, there must have been some grant of permission way back then because people don’t do that otherwise.
- Apply that now, there is presumption that this was a permissive act, and if you want to claim it was hostile, you have to prove that there was no permission given.→ Proving this is very difficult—Often couldn’t prove that no permission was given and people lose because of this.
- If court does not presume consent by fiction of lost grant, then to defeat prescriptive easement claim, the landowner will have to prove consent. Burden of Proof is outcome determinable often. The loser often has the burden of proof.

Question 36

○ 5 is sold by O to A – easement implied by necessity?

Answer 36

severs easement—you can’t have easement over your own property.

Question 37

In michigan you cant…

Answer 37

Michigan cant reserve an easement for a third party

Question 38

Issue 1: Assuming that there is an easement, what is the scope? – 3 issues: Drafter is the Master of scope issues!

Answer 38

• Where is the easement located?•
What or who is benefited by the easement?•
What use may the beneficiary put the easement to?

Question 39

• Where is the easement located? General rule

Answer 39

→ If easement expressly granted, whoever drafts the document can specify exactly where
→ If Easement by implication, prescription, or express where writer didn’t define where easement is, the GENERAL RULE is that easement location is at place reasonably necessary for the enjoyment of the easement for the benefit of the beneficiary.

Question 40

Easment location CL rule

Answer 40

→ CL RULE: location of easement may not be changed w/o the consent of both parties. Burden on the holder of the servient tenement. Good rule for holder of dominant tenement.

Question 41

→ RST SUGGESTED RULE: easement location

Answer 41

Suggests that the holder of the servient tenement should be able to make reasonable changes in the location of the easement at his own expense when a change is necessary to permit normal use; 3 requirements: (1) does not lessen utility of easement (2) does not increase burdens (3) does not frustrate purpose for which easement was created.

Question 42

• What or who is benefited by the easement?
In gross?
Appurtenant?

Answer 42

→ If easement in gross, benefits group of persons or person, those who are specified by the grant of easement are benefited.
→ Easement Appurtenant – CL RULE—easement may be used only for the benefit of the dominant estate which it is appurtenant (not for any other estate or purpose) even if extending benefit to the additional property would burden the property no further. WHY? Litigation all over the place if it unreasonably increases the burden on the easement, so they created a Bright Line Rule. EXCEPTION- to effectuate intent of the parties.

Question 43

• What use may the beneficiary put the easement to?

Answer 43

→ GENERAL RULE: make use of it in the same way that it was used at the time of the grant– Law PERMITS you to use it in a way that involves a future activity after the creation of the easement so long as the reasonable use could have been reasonably anticipated and so long as the change doesn’t unreasonably increase the burden on the servient estate.

E.g. easement for phone lines can be used to permit cable lines.

E.g. easement for horse traffic or foot traffic—auto use?—depends on character of the property at the time of the creation of the easement, whether the easement was express or implication, how this change in the nature of the traffic will effect the servient estate?
• DRAFT CAREFULLY IF YOU’RE CREATING AN EASEMENT B/C ALL OF THESE THINGS CAN BE EASILY ADDRESSED

Question 44

easement type of use

Answer 44

Existing Uses

Future uses reasonably anticipated at time of grant that do not unreasonably increase burden on servient estate

Question 45

a. Brown v. Voss, Wash Sup Ct., p. 519 - Scope- Expansion of Benefit to Other Estates:

Answer 45

: If an easement is appurtenant to a particular parcel of land, any extension thereof to other parcels is a misuse of the easement, unless the servient estate does not overburden it.

Would not be equittable to stop the use of the easement

Court does balance the equities but does extreme damage to the CL rule – this is an outlier case
•Michigan courts would NOT have allowed this result – they strictly stick to the CL

Look to common law rule of scope

Question 46

Wright v. Horse Creek Ranches: → Scope – Change in type of use of easement:

Answer 46

Alteration of easement not allowed: Changes of use of dominant estate, altered physical characteristics and would impose additional burdens on the servient estate

COURT: Horse Creek is seeking to change the kind of use that isn’t within the scope of the easement. CONCLUSION → current use is beyond what was originally granted in the easement!

Question 47

Rule/ Test for scope of easement

Answer 47

look at facts and circumstances → Court said they would follow the RST- easement is fixed by use for which easement is created. Also looks to use for which easement was created, looked at physical character, purpose, and burden on servient tenement – ALL balanced against needs of the dominant estate of normal evolution and use of property.

1. Whether road had been used for access to residences – NO
2. Look at how the test applied to what Horse Creek had done—easement was changed to double the width (10 ft wide dirt path to 21 foot wide paved road) – BAD
3. Original purpose of easement for infrequent use and NOW daily use- automobile use.
4. Servient estate burdened because instead of occasional rancher over 6 month of the year, people and guests will be driving in and out on daily basis.

Question 48

Easement burden end

Answer 48

o BURDEN: logically, once the easement is granted, the servient tenement is not owned in fee simple absolute. It is now a servient tenement with easement across it – (can only transfer what you own which is a servient tenement with an easement across it). Burden of the easement goes with the transfer and thus RUNS WITH THE LAND.

Question 49

o If Servient Tenement is subdivided and not transferred as a whole?

Answer 49

Generally, burden of easement runs with the land and will attach to each and every subpart of the servient tenement unless as a matter of geography doesn’t affect the other parts of property (e.g. if road runs across 2 of the 4 subdivided plots).

Question 50

Benefit for easemnt in gross

Answer 50

• CL: those easements could not be transferred and could not be subdivided. They were personal and belonged to the beneficiary and no one else.
• RST: if easement was of a commercial nature, then the easement in gross would be allowed to be transferred. (MICH RULE)
• MODERN: easements in gross are transferable or divisible unless contrary to intent of grantor or division of easement would unreasonably increase the burden on servient tenement.

Question 51

Benefit appurtenant

Answer 51

→ Easement Appurtenant:

• CL: When dominant tenement is transferred, the benefit transfers to the owner of the new property—it runs with the land because the easement benefits the property and not a particular person.
• If dominant tenement is subdivided → rule then is that the benefit of the easement is given to each and every one of the subdivided property parcels unless unduly burden the servient tenement.
• Unduly Burdensome: fact intensive consideration. Cases finding undue burden are VERY RARE. Parties are assumed to understand that property is subject to development. (Within contemplation of parties)
  (a) RS: Cannot be unreasonable damage nor burden – close to MICH rule
• Economic matter—good result because you want to give access to easement promotes development.

Question 52

Termination of easements

Express agreement

Answer 52

– e.g. if it specifies duration for easement- 20 years, terminates at the end of 20 years. Binding termination.

Question 53

T or E

Merger of estates

Answer 53

when holder of servient tenement and the holder of the dominant tenement become one in the same person. * cannot have easement over your own property.

Question 54

T of E Release

Answer 54

voluntary on the part of the holder of the beneficiary of easement (dominant tenement) – if he relinquishes the easement (1) Expressly by signing release in a form that satisfies the SOF

Question 55

T of E Abandonment

Answer 55

by action –> abandonment- take acts (not oral declaration) of an intention to never use the property again that as an equitable matter, result in relinquishment of the easement (e.g.) road goes up to his property, he builds house where road abuts property.
○ Need an AFFIRMATIVE ACT that is inconsistent w/ acts of use
i. Lack of use of road does not constitute abandonment

Question 56

T of E prescription

Answer 56

5- PRESCRIPTION [adverse USE] – Flip side of prescriptive easement- if holder of servient tenement uses that easement in a way that prevents the holder of dominant tenement from using it (owner puts up fence) then the easement can be taken back
○ (1) Claiming the property back – needs to be open/notorious + you do nothing about it
○ (2) Do it for the statutory period, easement disappears

Question 57

T of E condemnation

Answer 57

– Power of exercise of imminent domain; when the gov’t takes the property that has an easement across it for public use, the easement is taken + have to provide compensation but the easement will terminate. They are taking both interests (of servient and dominant estates).

Question 58

end of necessity

Answer 58

applies only to easements created by implication by reason of necessity—must exist at TIME easement is created + exists only so long as the necessity exists (e.g. road built near property)

Question 59

T of E Death

Answer 59

if easement in gross and was clearly personal to the beneficiary, not intended to be transferable, sub dividable, etc… when the beneficiary dies, the easement disappears (very uncommon).

Question 60

Preseault v. US p. 527- Termination:

Answer 60

○ Held: for Π. CONCISE: Change in the use of an easement from a rail line to recreational path constitutes a taking.
○ RULE: typically, an easement does not contain a specific term date, but usually ends by way of abandonment. Abandonment not effected merely by nonuse, but rather by acts that are inconsistent with the use for which the easement exists.

2- Scope Issue: If easement, Court would have to decide if deed for RR was broad enough to encompass recreational use →
COURT says NO- not foreseeable to see recreational public use (CL reasonably foreseeable & existing uses). ALSO, unreasonably increases burden—burden of RR is occasional train but Recreational trail means lots of people during the day.

Question 61

Covenants

Answer 61

enforceable written promise to do something on the land or a promise not to do something on the land (not that of another person so diff from easement). 2 sides to Covenants (just like easements)→ (1) Burden Side (2) Benefit Side- entitled to enforce the agreement.
(a) Cannot have a prescriptive covenant!

Question 62

Real Covenant

Answer 62

Creation by enforcable agreement
Intent that covenant runs with the land
Touch and concern

Question 63

Creation by enforceable agreemnt

Answer 63

real covenant must be created by enforceable agreement between the parties—If longer than year, must be in writing to avoid violating SOF. CAN’T be created by implication.

Question 64

Intent that runs with the land

Answer 64

intent to bind original parties and subsequent parties with interest in land (1) if lucky, they will express intent in the agreement. (2) say something very clear like this promise is intended to be real covenant that runs with the land at law (3) infer from the promise—is it a promise that doesn’t make sense, then should it be construed to run with the land?

Question 65

• What if 1 side of covenant is intended to run but not the other?

Answer 65

what if benefit side is in gross and burden is intended to run with land e.g. 2—if burden side was for individual but it benefits land. Satisfy requirement for real covenant that runs with the land at law? → Caullet Case.

Question 66

Toch and concern

Answer 66

the effect of the covenant is to make the land itself more useful or valuable to the benefited party. Burden touches and concerns the land if the covenanter’s land becomes less valuable (i.e. impacts value of property, diminishes landowner’s rights, privileges, and powers in connection with enjoyment of the land). Benefit Side—if benefit appurtenant, that benefit touches and concerns the land if the covenantee’s interest in the land is rendered more valuable because of the land. – look to relationship of land to the value of the property.
- Real Covenants are either:

Question 67

Benefit side

Answer 67

if benefit appurtenant, that benefit touches and concerns the land if the covenantee’s interest in the land is rendered more valuable because of the land. – look to relationship of land to the value of the property.

Question 68

Burden side

Answer 68

Burden touches and concerns the land if the covenanter’s land becomes less valuable (i.e. impacts value of property, diminishes landowner’s rights, privileges, and powers in connection with enjoyment of the land).

Question 69

Negative Covenant

Answer 69

Restrictions on use of land generally touch and concern—almost always. E.g. you may not do X, Y, Z with your property. If it affects rights in connection with enjoyment of property, it generally runs (i.e. can’t erect 2 story building versus can’t operate shoe store within mile of prop)

Question 70

Affirmative Covenant

Answer 70

Increases obligations in connection with enjoyment of land. Obligations to pay money generally do not touch and concern unless they substantially alter ownership interest in land- by providing a benefit to the owner of property that increases the value of the property. E.g. says you shall do X, Y, Z (i.e. maintain building- touches and concern because increases A’s obligation)

Question 71

Horizontal privity

Answer 71

o Courts defined privity of estate between landowners to be successive (grantor-grantee) relationship
o Allows enforcement of the covenant against successors when the covenant is created in conjunction with the transfer of some other interest in land, for example, a deed conveying a fee simple
o Horizontal privity of estate is required for the burden of a covenant to run at law, but horizontal privity is not required for the benefit to run
• Puts various obstacles in the way of the burden running at law, but allows for the benefit to run freely

Question 72

Vertical Privity

Answer 72

o Traditional doctrine requires vertical privity for both the burden and the benefit of a real covenant to run
o Under the law of real covenants, the burden and the benefit run with estates in land, not the land itself
• Covenant is enforceable by and against remote parties only if those parties have succeeded to the original parties’ estates in the land in question
o On the burden side, the covenant is enforceable only against someone who has succeeded to the same estate as the original promisor
• If the promisor had a fee simple, the party against whom enforcement is sought must have succeed a fee simple
• The burden of a real covenant does not run, IE is not enforceable at law, against an adverse possessor because an adverse possessor does not succeed to the original owner’s estate but takes a new title by operation of law
o Benefit side
• The promise is enforceable by a person who succeeds to the original promisee’s estate or to a lesser interest carved out of that estate

Question 73

For burden to run vertical privity

Answer 73

• If Burden—vertical privity- current possessor has to have acquired the entire estate of the covenanter (e.g. if fee simple absolute, no vertical privity unless acquired fee simple absolute). Consistent with discussion of assignment and sublease discussion.
- On the burden side – looks at relationship between original covenanter and the current party which is allegedly burdened by that covenant (person who has interest in property).

Question 74

For benefit to run vertical privity

Answer 74

• If Benefit not quite as strict, must have voluntary transfer but doesn’t have to be entire estate (can be lesser estate carved out of entire estate). (e.g. if lessor has fee simple and leases life estate, then still has vertical privity).
- Benefit Side—focus on person who presumably has interest in property and wants to enforce it.

Question 75

Horiztonal privity 2

Answer 75

focuses on completely different relationship than vertical – relationship between original grantor-grantee at the moment that the covenant was made. Has nothing to do with transfers of property. Requires that at the time the grantor entered into the covenant with the grantee, the 2 shared some interest in the land independent of the covenant (e.g. grantor-grantee, landlord-tenant, mortgagor-mortgagee).

Question 76

Strict or mutual horizontal priv

Answer 76

Strict or Mutual- Mass Rule (restrictive test)

Parties have to have interest in exactly same property – e.g. L & T, Holder of Fee and Life Tenant

Question 77

successive privity

Answer 77

Successive
Covenant was created in connection with transfer of property- or an interest in property from one of the original parties A to B or B to A.

Question 78

b. Godvin v. RDD Investment Corp - CM15- Touch & Concern

Answer 78

: Royalty obligation does touch + concern the land because the revenues are to be pulled from the business operating on the land and affect the value of the land b/c subsequent owners must pay the royalty obligation if they choose to operate disposal well facility.

Court uses intent to analze

Question 79

b. Tulk v. Moxhay p. 542: → Leicester Square Case

Answer 79

, a person who acquires real property with notice of a restriction placed upon it will not be allowed, in equity, to violate its terms.

Tulk wins because as a matter of equity, despite the fact that this doesn’t qualify as Real Covenant, he is going to enforce the covenant.  Principles of enforcement? →  Fairness—because Moxhay knew about the covenant at the time of purchase. Also unfair to allow him to pay for a garden and then put up a building;

Question 80

Mchigan rule for covenants

Answer 80

A covenant that runs with the land requires
o 1) The grantor’s and grantee’s intent that the covenant run with the land
o 2) The covenant affect or concern the land with which is runs
o 3) Privity of estate between the party claiming the benefit and the party who has the burden
• Test is whether the covenant concerns the thing granted and the occupation or enjoyment of it
• OR is a collateral and personal covenant not immediately concerning the thing granted
• If the covenant concerns the land and the enjoyment of it, its benefit or obligation passes with the ownership
• Must respect the thing granted or demised
• AND the act to be done or permitted must concern the land or the estate conveyed
• It’s performance or non-performance must affect the nature, quality, or value of the property demised, independent of collateral circumstances, or must affect the mode of enjoyment

Question 81

Wassan

Answer 81

No privity of estate

Question 82

Equittable servitude

Answer 82

○ Covenant that, regardless of whether it runs with the land at law, equity will enforce against the assignees of the burdened land who have notice of the covenant. Usual remedy is an injunction against violation of the covenant.
○ Covenant respecting the use of land enforceable against successor owners OR possessors in equity regardless of its enforceability at law. Requires that the parties (1) intend the promise to run, (2) that a subsequent purchaser have actual or constructive notice of the covenant, and (3) that the covenant touch and concern the land.
○ Horizontal privity is of no importance. Vertical privity is not required to run. Burdens land itself, not the estate. Can be implied under limited circumstances- obtained by prescription

Question 83

Sanborn - restrictive negative easment

Answer 83

: If the owner of two or more lots, which are situated so as to bear a relation to each other (e.g. residential), sells one with restriction which are of benefit to the land retained, during the period of restraint, the owner of the lot or lots retained can do nothing forbidden to the owner of the lot sold.

Question 84

○ Reciprocal Negative Easement:

Answer 84

Common owner of land conveys part of it with a restriction THEN his land is also burdened with that restriction (by implication) even though no promise to restrict land, there arises as a matter of law a reciprocal negative easement—not easement actually servitude. Property retained is similarly restricted—arises out of implication—will be enforced against any purchaser of property who has KNOWLEDGE (CONSTRUCTIVE NOTICE) – only applies to negative covenants & equitable servitudes.

Question 85

Requirements of common plan

Answer 85

○ 2 Requirements: MUST HAVE COMMON PLAN BEFORE RECIPROCAL NEGATIVE SERVITUDE/EASEMENT! → Enforceable only against owner with NOTICE.
○ HERE: had constructive notice to McLean by observing residential houses in all of the surrounding lots – if you look at chain of title, you would find restriction (but that restriction was not in the chain of title here!). - SO, no constructive notice in a classic sense.

Question 86

Inquiry Notice

Michigan considers constructive notice

Answer 86

that if there are restrictions in deeds to other lots which contained a restriction, those gave constructive notice to the purchaser that the lot was restricted– that should be constructive notice that your property would be similarly encumbered.
e. INQUIRY NOTICE required by MICHIGAN NOT CONSTRUCTIVE NOTICE. If he had stood on his lot and looked around, he would have seen that everybody around him was building houses. THEN he should look into whether he could run a gas station—This holding places the burden on any purchaser that the court may imply a reciprocal negative servitude and the only way to avoid that risk is to get each and every neighbor in the plan and get their approval.

Question 87

Margol v Margol

Answer 87

○ Held: AFFIRMED- hold for Δ. The Court equitably estopped the Π’s from stopping the Δ from building his property;
(1) such intent because in order to find it they had to look at original deed and didn’t say anything about successors (COURT Says it but it appears that it has nothing to do with whether it was intended to run)
(2) THE AGREEMENT- said “to establish rights among themselves” and also used first names! Not intended to run–THIS IS THE ONLY GOOD REASON the court has to say that it was not intended to run.
• Agreement was informal (used 1st names) – described as agreement among themselves (focusing on people rather than the land)
(1) The deed wasn’t recorded until later—again, it doesn’t appear to have any bearing on whether the parties intended it to run (even though the court mentions this as a reason).

○ BUT, this probably was intended to run— the COURT said it didn’t run because Michigan courts are very against Covenants—they want people to use property as they choose—property rights type of decision. If you want to restrict rights then you must do it clearly.

Question 88

g. Sun Oil Company v., Trent Auto Wash Inc- SC MICH- Intent:

Answer 88

Δ had knowledge of alleged covenant but wanted to use land for purposes that went against covenant.
○ MICHIGAN court will infer intent that a covenant will run with the land though faced with hostility from Dissenters. Hostility to covenants that run w/ land unless very clear intention to run w/ the land

Question 89

Sun oil test

Michgian test for running of equittable servitude

Answer 89

○ TEST: for running of burden of equitable servitude is intention of the parties to impose servitude upon the land as distinguished from personal promise of present owner.

Question 90

a. Association of Hammond Lake Estates v. Hammond Lake Estates CM 16 – Reciprocal Negative Easements

Answer 90

○ Held: AFFIRMED- hold for Π granting summary disposition to estop owners from using motorboats on lake.

○ HERE: (1) Met = Hammond Lake Realty Co (2) Met = HLE plat shows all 7 HLE lots + deed restrictions for all subs were recorded. Therefore estates were developed pursuant to general plan. (3) Met = deeds contain restrictive covenant running w/ land in accordance w/ plan. All restricts were nearly identical.

Question 91

○ Reciprocal negative easement

Answer 91

if owner of 2+ lots situated to bear relation, sells 1 w/ restriction of benefit to the land retained the servitude becomes mutual and applies to the unsold piece of land.

Must start w/ common owner + arise out of a benefit accorded land retained by restrictions upon neighboring land sold by the common owner.

Test: NEED (1) common grantor; (2) a general plan (3) restrictive covenants running w/ the land in accordance w/ the plan and w/in the plan area in deeds granted by the common grantor.

Question 92

Reciprocal negative easement test

Answer 92

○ Test: NEED (1) common grantor; (2) a general plan (3) restrictive covenants running w/ the land in accordance w/ the plan and w/in the plan area in deeds granted by the common grantor.

Question 93

b. Shelley v. Kraemer CM 17 – Constitutional Limits on Servitudes:

Answer 93

Racially restrictive covenant
○ Held: REVERSED- hold for both Δs. CONCISE: Standing alone, restrictive agreements cannot be regarded as a violation of any rights guaranteed to Δs. Judicial enforcement of racially restrictive covenants constitutes impermissible state action in support of racial discrimination.

○ 14th Amendment EPC violation alleged- No state shall….nor deny to any person within its jurisdiction the equal protection of the laws. Limitation on States- NOT people. It doesn’t guarantee everybody equal protection, it just precludes states from taking actions that deny equal protections.

Question 94

o MCLA §37.2505:

Answer 94

(1) condition, restriction, or provision that directly or indirectly limits origin, age, sex, familial status, or marital status is void. (2) Person shall not insert in a written instrument relating to real property a provision that is void or honor such provision.

Question 95

Termination of covenants; Express Easement

Answer 95

either originally indefinite in length OR original creation of covenant created said it would terminate after period of time. E.g. Shelley v. Kramer- 50 years.

Question 96

Termination of covenants;: Merger

Answer 96

when property burdened comes under same ownership as the benefited property, then the covenant disappears (can’t have a covenant to benefit yourself)

Question 97

Termination of covenants; Release

Answer 97

where the party benefited by restrictive covenant agrees to release the burdened party—give it up. It should be written for SOF. (must get agreement of everybody benefited)

Question 98

Termination of covenants; abandonment

Answer 98

party who is benefited by restrictive covenant can permanently relinquish a right to enforcement. Must be objectively observable acts –whether acts are sufficient is up to the court to determine. Most difficult to determine.

Question 99

Termination of covenants; Prescription

Answer 99

if party who made covenant, who is burdened by the covenant, refuses to observe it, the covenant may not be enforceable;

Question 100

Termination of covenants; Estoppel

Answer 100

if the benefited party has led the burdened party to believe that enforcement is not required and in reliance on this promise, benefited person may be estopped. *you had to have induced person to act in reliance.

Question 101

Termination of covenants; Laches

Answer 101

when you basically wait too long to enforce your rights. Benefited party tolerates violation of the covenant too long. * inaction for too long.

Question 102

Termination of covenants; Unclean hands

Answer 102

equitable doctrine where benefited party has violated same covenant against the one who he is trying to enforce the covenant against.

Question 103

Termination of covenants; Acquiescence

Answer 103

Waiver/ if the benefited party has allowed everyone else to violate the covenant, then can’t enforce covenant on one person. Selective enforcement;

Question 104

Termination of Covenenants Eminent Domain

Answer 104

1- Eminent Domain- taking by the government for public use—takes it free and clear of any restrictive covenants E.g. put up parking lot on single family resident lots.

When extinguished, takes benefit of covenant, they must provide compensation to those who were benefited by the covenant.

Question 105

Termination of cov - Changed Circumstnaces

Answer 105

1- Changed Circumstances- see Western Land
Used sparingly. Used when it is impossible to use it for the use it created.
RST will only invalidate when unconstitutional, illegal or violates public policy

Question 106

a. River Heights Associates L.P. v. Batten p. 550- Change in conditions:

Answer 106

o Πs sought declaration favoring enforceability of restrictive covenant prohibiting commercial use of 4 unimproved lots by Δ.
o

Covenant = property only used for residential purposes, no rooming house, boarding house, tourist home, or any other commercial enterprise, etc

.• Argues that changes in surrounding area (expansion of route 29 + change in commercial economy on that road) are enough to support “changes so radical)

CT: NO – changes did not occur in subdivision + covenant was created to protect the surrounding pieces of land. No changes w/in subdivision + to render covenant unenforceable b/c of changing to surrounding area would be grossly unfair to landowners in subdivisions

Question 107

Change in conditions balancing test

Answer 107

o Test: Balancing – look at change to conditions both w/in the other lots affected by covenant + surrounding area. Cannot just look at changes to surrounding area to determine drastic change.

Question 108

b. Cooper v. Kovan – C17- Change in conditions:

Answer 108

Amusement park restricted land for residential use only
○ Δs argue change in conditions in order to get residential covenant restriction lifted. Say: (1) higher volume of traffic in area (2) increased demand for business property in location (3) good location for mall (4) disputed area has been used for overflow parking before + mall would use it similarly (5) originally had been zoned for commercial use only.
• CT: Factors here do not meet elements for laches or change in conditions in Michigan – need to show that purpose for which restrictions were imposed can no longer be accomplished
○ Held: For Πs – residential restriction is valid and enforceable as to property in dispute

Question 109

○ Why should we ever allow changed circumstances to terminate covenant?

Answer 109

• Effectuate intent of original owners – can’t always foresee what will happen to the property
• Economic = allow for more productive use of property than covenant would contemplate

Question 110

Michigan courts are hostile towards

Answer 110

Change in circumstances doctrine

Question 111

c. Thom v. Palushaj CM 17- Balancing Hardships against restriction violations:

Answer 111

○ The Δ/Palushajs bought land subject to multiple deed restrictions including (1) any home built had to be 100ft away from adjacent homes + 40ft away from sidewalk. Πs/Thoms warned Δs about violations when they learned Δs planned to start building. Δs sought advise from counsel who advised them restrictions were no longer valid + Δs proceeded w/ construction. Home ended up being 80ft from Πs house + 28ft from sidewalk. Πs sought injunction to stop the continued construction.

Question 112

Michigan Change in conditions

Answer 112

need to show that purpose for which restrictions were imposed can no longer be accomplished

Question 113

c. Thom v. Palushaj CM 17- Balancing Hardships against restriction violations:

Answer 113

o Test for proper remedy: (1) balancing of hardships of both parties if the injunction is or is not granted (2) whether injunctive relief will likely require future oversight from court (3) whether deed restrictions provide for recovery of monetary damages + if the circumstances giving rise to such recovery (4) clear/specific list of documented damages claimed by Πs (impact on their property value, etc)

Question 114

ISsue in pulja

They had notice of this covenant nad proceeded anywyas

Answer 114

Michigan courts will strictly enforce unambigous deed restrictions even if it is burdensome
o Court was trying to push for settlement b/c of extreme hardships that Δs would face by tearing it down.
o It doesn’t matter how inconvenient it might be to the parties
o Just because the land would be more valuable without it, you cant just get rid of the covenant
o Court says they don’t care; covenant is there for a reason

Question 115

L. Common Interest Communities

Answer 115

Can be any sort of collective living arrangement where people (eg. Associations) come up with regulations to regulation their actions within the community.

Question 116

b. Nahrstedt v. Lakeside Village Condo Ass, Inc p.555→ (CCR=covenant, condition, & restriction)

Answer 116

Restrictions in CC & Rs regarding pet ownership are reasonable and therefore enforceable when they prohibit conduct which, while otherwise lawful, interferes with the rights of other condo owners to the peaceful and quiet enjoyment of their property.
○ CALI LAW: how do we decide if covenants are enforceable or not? → presumed enforceable UNLESS they are unreasonable. Presumption of validity – Nahrstedt must show the covenant is unreasonable. Appeals court test is wrong;

Question 117

Noirmal restrictive covenant standard

Answer 117

○ NORMAL Standard: Restriction must be enforced in condo as it was intended to apply unless Π can show burden it imposes on affect properties so substantially outweigh the benefits of the restriction hat it should not be enforced against any owner. – not what CT of APP used.

Question 118

A covenant is unreasonable if

Answer 118

○ Unreasonable IF: does not mean unreasonable in particular case, in the statute, it means unreasonable on its fact and across the board instead of individual cases.
(1) wholly arbitrary- if covenant serves no purpose, no rational relationship to land
(2) violates fundamental public policy- e.g. discriminating against minorities, etc..
(3) imposes burden on effective use of land that outweighs the benefit- as a matter of equity, it should not be enforced.
Other test for unreasonable: Look at it from homeowner’s perspective – individual case by case basis

Question 119

RST 3rd of property, Servitudes §3.1 Validity of Servitudes:

Answer 119

General Rule – covenant is enforceable unless illegal, unconstitutional, OR violates public policy. Lists various ways in which servitudes would violate public policy.

1. Servitude that is arbitrary, spiteful, or capricious
2. Servitude that unreasonably burdens a fundamental constitutional right
3. Servitude that imposes an unreasonable restraint on alienability
4. Servitude that imposes an unreasonable restraint on trade or competition;
5. A servitude that is unconscionable

Question 120

○ Nuisance

Answer 120

one should use their property in such a way as to not injure the property of another. Typical agents are noise, dust, smoke, odors, vermin, insects, vibration, air or water contaminants.

Question 121

Private Nuis

Answer 121

involves interference that unreasonably interferes with use and enjoyment of land, only owners of interests in land can bring the suit.

Question 122

PUBLIC nuis

Answer 122

involves interference with public rights; ANY member of affected public can sue, but usually ONLY if the person bringing suit can show special injury or special damage— injury or damage of a kind different from that suffered by other members of the public.

Question 123

Nuisance

Answer 123

No physical Invasion Necessary
Harm Must be shown
Conduct must be unreasonable
Π may hold any interest in property

Question 124

Trespass

Answer 124

Physical Invasion Necessary
No need to show harm- actionable regardless. Strict liability tort,
Liability regardless of fault—even if reasonable actions
Π must have possessory interest in property

Question 125

per se / per accidens

Answer 125

○ per se - at all times and under any circumstances → per accidens - nuisance by reason of their location or manner of construction or operation. The circumstances engaged in causes the harm.

Question 126

Public nuis

Answer 126

Act or condition that unreasonably interferes with general community interests or comfort of public at large as opposed to individual property owners.

• may be defined by statute.
• Do not have to be defined by statute
• Do not have to be unlawful activities
• Involves amount of people affected by particular nuisance.

Question 127

Unreasonableness

Answer 127

1- whether conduct significantly interferes with public health, safety, peace, comfort, or convenience.
2- Whether conduct is proscribed by statute (illegal conduct)
3- Whether conduct is of a continuing nature or has produced a permanent or long-lasting effect

Question 128

Michigan statute of fruads exceptions

Answer 128

1- Statute of Frauds: K for sale of land. Must be in writing to meet the statute of frauds. EXCEPTIONS MICHIGAN: to satisfy SOF (via substitute) only in connection with full or part performance but NOT estoppel. Very hard to establish. Merely possessing the property is not enough. Paying some of the money is not enough. If both, probably enough. If taken possession and made improvements, prob enough. Michigan cases all over on what actions suffice to substitute for a writing under SOF. (1) part performance- allows enforcement of oral agreements when particular acts have been performed by one of the parties to the agreement. Other State’s exceptions may include: (2) Estoppel- applies when unconscionable injury would result from denying enforcement of the oral K after one party has been induced by the other seriously to change his position in reliance on the K.

Question 129

Marketable title

Answer 129

marketable title. → if you do not describe the quality of the title that you are to get, there is implied in every K of sale of real property a covenant that the seller will deliver marketable or merchantable title. Because implied, if marketable title not offered up at closing, the purchaser does not have to buy (unless the K explicitly says so). Marketable Title: a title not subject to such reasonable doubt as would create a just apprehension of its validity in the mind of a reasonable, prudent, and intelligent person, one which such persons, guided by competent legal advice would be willing to take and for which they would be willing to pay fair value. AKA → a title that is free from reasonable doubt and that the reasonable buyer would accept without fear of litigation (free from Encumbrances)

Question 130

a. Bartos v. Czerwinski, CM 18- what is marketable title?:

Answer 130

○ Remedy Requested: Equitable remedy — if title is unmarketable → make it marketable. Specific performance to compel the Bartos’s to deliver to them marketable title. NOT AVAILABLE. Court says they can’t do this because there was no assurance that the Δ could obtain marketable title. Un-marketability of title is completely out of Δ’s control.
○ Remedy Available: remedy at law—get out of sale and give back deposit. Take it as is or walk away.
○ RULE: can’t compel sellers (specific performance) to get marketable title but sellers can seek specific performance to force buyers to purchase the property.

Question 131

b. Lohmeyer v. Bower p. 351- Impact of title restrictions & zoning, restrictive covenants and/or easements:

Answer 131

CONCISE: A party cannot convey good merchantable title if violations of covenants or zoning ordinances exist on the subject property at the time it is to be sold.

Question 132

○ Maj rule on easement or restrictive covenants

Answer 132

mere existence of Easement or Restrictive covenant makes title un-marketable because it is an encumbrance.

Question 133

○ Visible Encumbrances

Answer 133

generally assumed that one is willing to accept visible encumbrances the same way you would accept encumbrances that are mentioned in a K for sale. Even if the K doesn’t state that you are accepting this, the COURT will generally force you to close (e.g. utility poles, sewer lines as long as it is known).

Question 134

○ Violation of Restrictive Covenant

Answer 134

renders title unmarketable. HERE- house was 1 story and should have been 2 stories and that violation was the basis for Lohemeyer’s suit. That rendered titled unmarketable. Thus, BOTH existence of restrictive covenant, violation of restrictive covenant renders title unmarketable.

Question 135

○ Zoning Law Rule:

Answer 135

Existence of zoning ordinance does not render title unmarketable. But violation of the zoning laws renders title unmarketable. COURT—says when we are thinking about unmarketable title, look to the rights someone has to property free from claims to other private parties. Are not thinking about general restrictions on property imposed by public authorities. Marketable Title focuses on Private NOT public relationships. Everyone has an equal opportunity to research zoning laws (no need to put burden on Seller to disclose). BUT IF VIOLATION- that should be within the knowledge of the homeowner and that constitutes an absence of marketable title.

Question 136

Existence of an easement

Answer 136

Existence

Title unmarketable unless visible, like utility easement (wires).

Question 137

Violation of an easement

Answer 137

unmarketbale

Question 138

Existence or violation of restrictive covenant

Answer 138

Existence Violation

Title unmarketable Title Unmarketable

Question 139

Zoning restriction violation or existence

Answer 139

Existence
Title NOT unmarketable

Viol: Title Unmarketable

Question 140

• MICHIGAN ADDITION – DOWER; IF SPOUSE HASN’T BARRED DOWER = TITLE UNMARKETABLE

Answer 140

• MICHIGAN ADDITION – DOWER; IF SPOUSE HASN’T BARRED DOWER = TITLE UNMARKETABLE

Question 141

Caveat emptor ; when effective?

Answer 141

Caveat Emptor / “AS IS CLAUSE” Effective
1- Neither party has knowledge or condition OR
2- Condition is reasonably discoverable upon inspection

Question 142

Silent fraud

Answer 142

Silent Fraud
1- Seller has knowledge or condition, AND
2- Condition is not reasonably discoverable upon inspection

Question 143

a. Lorenzo v. Noel CM 18- Caveat Emptor:

Answer 143

○ As Is clause not effective if silent fraud- seller knows of a condition or defect and that condition or defect is not readily discoverable with inspection, then seller remains responsible notwithstanding the as is clause.
○ DEFECT HERE: court said that there were issues of fact about whether the seller knew, etc…— Consequence is that the case should be remanded that not appropriate for SJ.

Question 144

b. Conahan v. Fisher- caveat emptor:

Answer 144

○ As is clause, inspection, & no termites found. Seller knew about the termite problem – looks like silent fraud unless reasonably discoverable. It wasn’t discovered by termite expert but this still doesn’t establish it being reasonably discoverable.
○ EXPERT killed the case by saying a competent expert would have discovered the termites. THUS, a reasonable inspection would have disclosed it. – silent fraud does not circumvent your own responsibility to hire competent inspectors.
○ Inspectors always add in their contracts – you can only ever recover against them the amount you paid for their services; Contractor screwed them – had he not said competent expert would have discovered them then “reasonably discoverable” element would not have been met.

Question 145

c. Stambovsky v. Ackley p. 356- caveat emptor:

Answer 145

Where a condition which has been created by the seller materially impairs the value of the K and is peculiarly within the knowledge of the seller or unlikely to be discovered by a prudent purchaser exercising due care with respect to the subj transaction, non disclosure constitutes a basis for rescission as a matter of equity. (KNOWLEDGE OR UNLIKELY DISCOVERY = RECISSION)

○ COURT instead rescinds the K and says this was not covered by caveat emptor. The court crafts a new exception to Caveat Emptor–Third exception → “materially impairs value of the K”.

Question 146

NY CAVEAT EMPTOR

Answer 146

○ STRICT caveat emptor—no duty to disclose unless (1) confidential or fiduciary relationship between parties or (2) conduct which constitutes an active concealment of the condition (trying to hide it from the other party). NEITHER IS TRUE. Seller publicized the haunted nature of the house. BUT, Strambovsky should have lost.

Question 147

d. MICH SELLER DISCLOSURE ACT- Condition of premises:

Answer 147

○ MICH: Strambovsky would have had to disclose because not reasonably discoverable by inspection; Law enacted says realtors do not have to disclose things like (1) murder on the property (2) person died of AIDS on the property — unless they are asked by someone;

Question 148

d. MICH SELLER DISCLOSURE ACT- Condition of premises:

Answer 148

○ Applies to any transfer in real estate (1-4 dwelling unit) LAW says seller must cause to be delivered to the purchaser before purchaser executes final purchase agreement– must give written statement in statutory form. Seller disclosure form is not a warranty—can’t sue on the basis of the form but a must establish silent fraud. Provides Purchaser an option to back out—if you don’t like what you see on the form, you do not have to purchase. If disclosed on seller disclosure form you can NEVER establish silent fraud.

Question 149

e. Kobetic v. Corbat (2008) – Michigan Court of Appeals

Answer 149

o Seller Disclosure Act (SDA)
• Sellers have a legal duty to disclose, in “good faith,” certain conditions of their home to prospective buyers. In the event that the disclosures are fraudulently made, a buyer may maintain an action for fraud against the sellers.
o Δs WERE EXPRESSLY REQUIRED TO DISCLOSE WHETHER THE ROOF LEAKED
• SDA places no time limitation on disclosures of leaks
• The sellers’s disclosure statement provided by defendants indicated that water entered the roof “several years ago” when a soffit was blown off.
- BUT the problem arises in the explanatory language : “1x incident-repaired”
- 1x incident repaired was NOT ACCURATE
- multiple obvious leaks in the roof were discovered by Πs upon first significant rainfall

Question 150

o Under the Silent Fraud doctrine → A cause of action “is established when

Answer 150

o Under the Silent Fraud doctrine → A cause of action “is established when there is a suppression of material facts and there is a legal or equitable duty of disclosure

Question 151

Roberts v. Saffell (2009) CM 18– Michigan Supreme Court – Innocent Misrepresentation

Answer 151

o HELD: Ct of APP correctly held that innocent misrep does not constitute viable cause of action under SDA
• Whether defendants did or did not possess personal knowledge of the infestation is a matter not before this Court as a result of plaintiff’s abandonment of their fraudulent misrepresentation claim and their exclusive focus on their innocent misrepresentation claim

termites

Question 152

claim for innocent misrepresentation, which requires

Answer 152

claim for innocent misrepresentation, which requires a showing that defendants

1) Made false statement in a transaction with Π
2) Without knowledge of that statement’s falsity
3) Which statement actually deceived Πs
4) On which Πs detrimentally relied, with the benefit incurring to defendants

Question 153

a. Weeks v. Slavik Builders Inc. CM 18 -Implied Warranty of fitness?:

Answer 153

Advertisements for home contained description of lifetime roof. After 1st rain storm roof leaked + builders unsuccessfully tried to cure problem.
○ Held: AFFIRMED for Π/purchasers. Implied warranty of fitness extends to purchaser of new residential dwelling houses, whether they are purchased prior to construction, during construction, or are purchased after the dwelling has been constructed but is yet unoccupied.

Question 154

Is there an implied warranty with respect to the sale of real property?

Answer 154

NO, that is why we have caveat emptor—generally no representations to the condition of real property and then you sell the property;

Question 155

Limited Implied Warranty: only NEW RESIDENTIAL DWELLINGS

Answer 155

○ Limited Implied Warranty: only NEW RESIDENTIAL DWELLINGS—relatively to other types of housing, or commercial dwellings, then caveat emptor prevails; house must be purchased before, during, or after construction but not yet occupied for this to apply.

Question 156

g. Doctrine of Equitable Conversion- Consequences of K for sale:

Answer 156

○ Equitable Conversion: if there is a specifically enforceable contract for the sale of land, equity regards as done that which ought to be done. Been used by some courts to determine whether the seller or purchaser takes the loss when the premises are destroyed between signing the K of sale and the closing. AS LONG AS EVERYTHING IS READY IN K OF SALE: Can go into court have specific performance to make the purchaser to buy;
○ Real estate is seen as unique so damages not seen as adequate and court will usually order specific performance.
○ Because court provides equitable relief, in the eyes of the law, once you have signed purchase K, you are equitably the owner of the property. Equity will say seller is no longer equitable owner, they only have a right to receive money. Purchaser equitable owner → EQUITABLE CONVERSION.

Question 157

1- if house burns down—if you are equitable owner of the house, then purchaser obligated to close unless the K says otherwise; Equitable owner bears the risk of loss of the property

Answer 157

MAJ RULE: you have to close regardless of damage to property before the closings; MIN rule: waits until the closing. – but usually dealt with on the K

Question 158

2- If one of the parties dies — O has Will leaves personal prop to one person and real property to another.

Answer 158

If he was the purchaser, he has Real Property interest in the property. If he was the seller—generally, he is deemed to have an interest in personal property. Doctrine has no bearing on who has possession of the property— in absence of K, seller has possession of the house. Equitable owner doesn’t always get possession.

Question 159

deed

Answer 159

. Requirements: identify parties, words of grant (evidence that present intent to convey), describe the property (survey or reported map or description by leaps and bounds, address—but must be sufficient to enable someone else reading the deed to locate the property that the deed covers), must be signed by the grantor (SOF requirement);

Question 160

Deeds must be notarized

Answer 160

to make deed recordable

Question 161

michigan deeds

Answer 161

MICHIGAN: address of grantee, name and address of preparer, and marital status of any male grantor (for dowry purposes)

Question 162

General Warranty

Answer 162

seller provides certain covenants or warranties governing certain covenants of title. MICHIGAN- not necessary to set out the elements of deed – if you use the word WARRANTS in the language of warranty deed, as a matter of law, all the warranties are assumed.

Question 163

Special warranty

Answer 163

• grantor provides grantee a SINGLE covenant or warranty—that single warranty is that the grantor himself has not done anything to impair title to the property. It is in the same shape it was in when they received the property (doesn’t say what kind of title the owner received themselves though) —— NOT PERMITTED IN MICHIGAN. MCLA §750.275 – if you use a deed that says warranty, if you try to make it into something other than warranty deed then you are guilty of a misdemeanor. In Michigan, people sometimes use COVENANT DEED – limits covenants but no reported cases about them (these are very limited).
  → warranties only against the grantor’s own acts, not the acts of others.
  e.g. if defect is a mortgage executed by grantor’s predecessors in ownership, grantor NOT liable.

Question 164

Quitclaim deed

Answer 164

grantor grants to grantee whatever interest grantor has without warranties, covenants, etc… Whatever I have, I give to you. Grantor says nothing about title. Grantor not liable if there is a problem—can’t sue the grantor.

Question 165

Doctrine of Merger

Answer 165

○ Once a deed is delivered in any form, these warranties are the only warranties that the grantee is entitled to sue on with respect to title. True, even though, unless otherwise negated, every purchase K contains warranty of marketable title. Once the deed is delivered, any covenant or warranty in the purchase agreement MERGES into the deed and you no longer have the right to sue on any covenant of the purchase agreement.
○ MERGER- doesn’t limit cause of action for fraud or things collateral to the deed that are not covered by the deed. Some covenants intended to survive the closing (title covenants though are just what is in the deed).

Question 166

Seisen

Answer 166

grantor warrants he owns the estate that he purports to convey. – has freehold interest in the property.

Present

Question 167

Right to convey

Answer 167

serves purpose of seisen but possible for person to have seisen but not right to convey. – I have the right to sell the property to you. E.g. if owner were trustee and had ownership but trust precluded sale of property.

Question 168

No encumbrances

Answer 168

promise that there are no encumbrances on the property e.g. mortgages, liens (tax or judgment), lease, easements, restrictive covenants, license, equitable servitude, interest in spouse created by dower rights, etc…

Question 169

General Warranty future covenant

Answer 169

• grantor warrants that he will defend and indemnify the grantee against any lawful claims and will compensate the grantee for any loss that the grantee may sustain by assertion of superior title. – person must actually have a prior right to the property. Grantee has to pay them off to get the property.

Question 170

CQE

Answer 170

grantor warrants that the grantee will not be disturbed in possession and enjoyment of the property by assertion of superior title. — same as general warranty (really a subpart of general warranty but as a matter of CL, this is how it developed)

Question 171

Further Assurances covenant

Answer 171

grantor promises that he will execute any other documents required to perfect the title conveyed. (take any further action to convey good title to the grantee—e.g if grantor doesn’t have possession, will make sure to have possession)
– NOT INCLUDED IN MICHIGAN GENERAL WARRANTY DEED. Concept works anyway in Michigan because of doctrine of acquired title.

Question 172

Present covenants are breached when

Answer 172

Breached, if ever, at time deed is delivered (at the very moment that the deed is made—either they are true at the moment or there is a breach).

Question 173

GW or CQE are breached when

Answer 173

Breached, if ever, if grantee is actually or constructively evicted by one with paramount title

Question 174

Further assurances breached when

Answer 174

Breached, if ever, when grantor refuses to provide good title.

Question 175

future covenants are breached when

Answer 175

made at time deed is delivered but breached when the bad event occurs and some paramount owner comes to the property. When the act happens, grantor is supposed to act. When grantor is supposed to act and doesn’t do it, then the covenant is breached

Question 176

s/l begins to run on a breach of a present covenant

Answer 176

t at the date of delivery of the deed. ItIt begins to run on a future covenant at the time of eviction or when the covenant is broken in the future.

Question 177

Lober

Answer 177

CONCISE: The mere existence of a superior title does not constitute a breach of the covenant of quiet enjoyment.
○ Sue for breach of covenant of quiet enjoyment. Breached when there is some disturbance with possession or enjoyment of the land. HERE- no disturbance.

Question 178

Who may enforce covenants

Maj, minorite, future

Answer 178

Direct Purchaser only
(C can’t sue A) – can be enforced by party to whom covenant was made – MICHIGAN

All Purchasers (by assignment)
(C can sue A) – breach of covenant creates chose in action that runs with the land. – buy property is buying right to sue.
All purchasers (Runs with the land

Question 179

○ Damages for breach of covenant against encumbrances generally follows

Answer 179

rule of K law putting grantee in as good a position as if the covenant or warranty had not been breached—giving benefit of bargain. Breach of Seisen doesn’t follow this rule. Encumbrance easily removable and Seisen means that someone sold something that they didn’t own.

Question 180

○ For a covenant to run with the land to successor claimant

Answer 180

covanantee must convey to the successor either title or possession, some thing to which the covenant can attach and with which it can run.

Question 181

○ Future covenants of quiet enjoyment are intended to

Answer 181

secure compensation to purchaser when quiet possession disturbed. Covenants not breached unless covenantee or his assigns are prevented from taking complete possession or are actually or constrictively evicted by a person having superior title.

Question 182

b. War Eagle v. Belair (CM19)

Answer 182

o Court said if they wanted it to apply, they should have written it into the deed
• This is like a visible easement, like marketability, it is assumed that this is okay because it is assumed that you want that easement there (to get your electricity and such)
- So the argument here is that this was a visible encumbrance, so it should be allowed
- Court says no because it is a difference between an encumbrance that give a public service (get your electricity) or private (like this one)
• Existence of state law that limits use of your property does not render title unmarketable BUT if there is already a violation then the property becomes unmarketable

Question 183

o Public easements – visible burden rule (obvious from being visible on land) DOES NOT apply to ordinances b/c no evidence that violation could be seen through inspection of property.

Answer 183

o Public easements – visible burden rule (obvious from being visible on land) DOES NOT apply to ordinances b/c no evidence that violation could be seen through inspection of property.

Question 184

McCausey v. Oliver (CM 19)

Answer 184

• Said that the grantor promises that if there is a dispute over title, the grantor must defend, indemnify, and compensate IF it is a lawful dispute
• To be lawful, the dispute must have someone who has SUPERIOR title
• Indemnification of LAWFUL claims only!
- Not just a suit by any old person
o McCausey was not successful because the adverse possession claim FAILED
• Therefore they didn’t’ have a lawful claim nor any superior title to this claim
o Lawful claim means from someone WHO ACTUALLY has and is asserting superior title

Question 185

F. Delivery Issues- transfer effective when deed is delivered by grantor:

Answer 185

○ Only significance of deed- document the DELIVERY of which creates an interest in property. Until deed is delivered, it creates no significance nor does it create a title interest. Once delivered, creates interest even if subsequently, the deed gets destroyed…

Question 186

delivery

Answer 186

= physical handing over of the deed. Can be delivery without physical transfer of this piece of paper. Absence of delivery even if piece of paper was physically handed over. EFFECTIVE DELIVERY must have a PRESENT INTENT of grantor to transfer the property.

Question 187

conditional delivery on future event ? effective?

Answer 187

No Delivery until future event occurs, which must be before death of grantor
- e.g. deed yours on 21st birthday—valid if on 21st B-day, grantor alive. If dead before 21st b-day, no present intent to deliver. Not effective. EXCEPTION- when condition is death of grantor. If dead, then can’t manifest present intent to deliver prop

Question 188

delivery with conition s

Answer 188

No impact on delivery

• I give you this deed but don’t record it until I die.
• If transferor is well aware that this creates a presently effective transfer of property but doesn’t want it to be public record, then good grant.
• Not good if intent was for the transfer not to take effect until after death..
• INTENT

Question 189

Deed delivered to third party

Grantee’s agent

Answer 189

Effective Delivery

e.g. grantee’s spouse, lawyer, etc…, then delivery to agent of grantee has same legal effect as delivery to grantee.

Question 190

Deed delivered to third party

Grantor’s agent

Answer 190

No delivery until delivery by agent which must be before death of grantor
- mere act of giving it to grantor’s agent does NOT result in transfer- only when grantor’s agent gives it to the grantee or grantees agent. Relevant when it never makes it to the grantee or grantee’s agent. Then no effective delivery.

Question 191

DELIVERY ISSUES:

○ Escrow delivery relates back—relation back doctrin

Answer 191

title does not pass to the grantee until performance of the named conditions. Where justice requires, however, the title of the grantee will relate back to the time of the deposit of the deed in escrow. Generally applied if grantor dies, becomes incompetent or creditor of grantor attaches grantor’s title. way of making delivery effective as of the earlier time—way of conceptualizing that we are ignoring what happened in between delivery and later. Transfer out will be deemed to be effective as of the date that the deed was placed into escrow.

Question 192

a. Sweeny Administratix v. Sweeny p. 380- physical handing over/delivery conditioned on future event:

Answer 192

CONCISE: where a deed has been formally executed and delivered, the presumption that the grantee assented to delivery can be overcome only by evidence that no delivery was in fact intended. RULE: where a deed has been manually delivered, there is a rebuttable presumption that the grantee assented since the deed was beneficial to him.

Question 193

○ PROBLEM: condition was death—

Answer 193

— if delivery conditioned on death, it doesn’t work because at the moment the condition is satisfied, the grantor is no longer around to form the present intent to transfer an interest in property.

Question 194

b. Goddard v. Goddard (2011) – CM 19

Answer 194

o App Ct: There was constructive delivery of the deed from son to mom (“some competent and credible evidence that the brother delivered deed to mother”, since Carl accepted the money from his mom to record the deed).
• Carl became grantee’s agent and therefore his possession of the deed constituted delivery and therefore his Mom has ownership – this can’t work b/c grantor can NEVER be agent of grantee
• Court wants to protect elderly mom’s rights!! Do not want to let son take advantage of her.
• Therefore look to intent and use that to create constructive delivery.
o Theoretically, you need present intent + an act to have valid delivery. But courts struggle with these req’s, especially where applying requirements frustrates intents of grantor or takes property away from ailing elderly women.
o This is anti-Sweeney. Court looks at intent primarily.