Property Flashcards
AP: special rule re gvt
can’t AP vs gvt
if AP doesn’t work out: other ways to get property from someone in a boundary dispute
–oral agreement –acquiesence –estoppel –laches
Romero v. Garcia
F: P bought land 30 yrs ago from parents in law, but only one of them signed deed, both supposed to H: P keeps the land–lack of signature dnm deed insufficient for color of title. . Physical descritption of land suficient.
AP: claim of right
you just establish yourself and dnh color of title
AP: adverse or hostile: nonpermission – exception
exception to the PRESUMED non-permission: permission given at some point in the past, continues until revoked
AP: adverse or hostile: state of mind
Westmoreland has objective test, just need possession. Minority rule – subjective test
AP: adverse or hostile: state of mind: minority rule tests (2)
1) intentional dispossession: only have a claim if AP’er knew land wasn’t theirs and still tried to take vs opposite 2) good faith – AP’er must show acting in good faith
AP: continuous
continuous use as a regular owner would (dnh to be there every day). –distinct from statutory period
AP: statutory period
W: 15 years for COR or 10 years for COT
AP: stattuory period: tolling: factors (5)
1) infancy 2) insanity 3) incompetence 4) imprisonment 5) absence from state
F: 2 feet of P’s property is on D’s side of fence. H: AP is found bc meets 6 elements. Objective perspective re adverse/hositle
Brown v. Gobble
AP: statutory period: tolling: “from when COA first accrues”
from when circumstances that led to the lawsuit began. (so which was first? the AP or the tolling condition?)
AP: statutory period: tacking
–allowed in W –can add up time you (or your predecessor) were AP’ing under various owners –2 parties must be in privity
AP: extra element
paying property taxes (NOT W.)
Brown v. Gobble
F: 2 feet of P’s property is on D’s side of fence. H: AP is found bc meets 6 elements. Objective perspective re adverse/hositle
F: native Alaskans took over recreational land by building small improvements every other summer H: meets elements of AP use – quality/quantity of acts required depends on character of land in question (rural so less) hostile–objective test N: only got land they were actually using (COR) anthropologist testified that couldn’t own it
Nome 2000 v. Fagerstrom
AP: tacking: exception
per Gobble court, if first owner had it for statutory timeframe dnh to tack bc it passes to next owner as already part of parcel)
Nome 2000 v. Fagerstrom
F: native Alaskans took over recreational land by building small improvements every other summer H: meets elements of AP use – quality/quantity of acts required depends on character of land in question (rural so less) hostile–objective test N: only got land they were actually using (COR) anthropologist testified that couldn’t own it
F: P bought land 30 yrs ago from parents in law, but only one of them signed deed, both supposed to H: P keeps the land–lack of signature dnm deed insufficient for color of title. . Physical descritption of land suficient.
Romero v. Garcia
rship btwn AP and trespass
AP turns T.ers into owners. (T can ripen into AP if you dn sue to eject)
ways to raise AP in lawsuit (2)
as D: defense to ejection suit as P: affirmiatve case to quiet title
adverse possession: standard of proof (W)
clear and convincing evidence
adverse possession: elements (6)
1) actual 2) exclusive 3) open and otorious 4) averse or hostile under color of title or claim of right 5) continuous 6) for the statutory period
AP: actual
actually using the land –dnh to be constant, just how a true owner would –ex. fence, sig activities
AP: exclusive
exclusive OF THE OWNER (no permission of owner) –NOT: no one else can ever enter it
AP: open and notorious
–puts reasonable owner on notice that property being occupied –DN require actual notice
AP: adverse or hostile (3)
nonpermissive from owner –presumption of nonpermission if you’re possessing –W: no SoM requirement (so dn require hostile intent/attitude)
AP: color of title: def
you thought you had title but there was a defect in the title
AP: color of title: result
you get the WHOLE AREA of land defined in the title as “constructive possession” (contrast: CoR have to show you were acutally using whole area) –time must AP is shorter
extent of land you get (AP
color of title: full amount in deed claim of right: just what you were actually using
jt, leases and survivorship – cool way to say it
“there is no right to devise one’s interest in a joint tenancy”
unreasonable covenant: majority view (CL/W)
strong presumption of reasonability
Nahrstedt v. Lakeside Village Condo Assn
F: condo owners has 3 cats inside, silent, clean, sues D HOA over no pets restriction H: reasonableness must be considered vis a vis EVEREONE not any one owner, presumed reasonable, would have to show arbitrary/brudensome so much so that it substantially outseighs benefits to EVERYONE or fundamental public policy (majority)
IRNS: what’s different?
–exception to nl requirements bc dn TC land
Daivdson Brothers Inc v. Katz
F: P had 2 grocery stores, sold one w noncompete covenant, food desert H: against public policy so won’t enforce covenant. 8 pronged reasonability test: intention, impact on consideration, clear, written/actual notice, reasonable re time/area/duration, unreasonable restraint on trade, interferes w public interest, change circumstances make it unreasonable now? (minority)
F: subdivision w restricted covenants re lakefront homes, othe rlarge sections dnh specified covenants an dlate rowner tried to build a marina there. H: it’s possible for the IRNE to intentionally onl apply to certain areas of the development
Evans v. Pollock
F: condo owners has 3 cats inside, silent, clean, sues D HOA over no pets restriction H: reasonableness must be considered vis a vis EVEREONE not any one owner, presumed reasonable, would have to show arbitrary/brudensome so much so that it substantially outseighs benefits to EVERYONE or fundamental public policy (majority)
Nahrstedt v. Lakeside Village Condo Assn
F: restrictive cov no alcohol sales, changed conditions: brown bagging, sold other places H: cov has changed so much that justifies eliminating (relig com to tourist area) –> change was significant enough to “render the benefits underlying imposition of the restriction incapable of enjoyment”
El Di Inc v. Town of Bethany Beach
F: HOA covenant banning black people H: racial HOA covenants are covered by 14th am state action requirement, bc state courts enforce them N: pretty much limited to these facts now bc of very broad application of state action doctrine
Shelley v. Kramer
F: HOA suing bank for nonpayment of assn fees which are to maintain common areas H: meets requirements to run w the land. T+C: may not have met old requirements re direct c to land, but this court: it gives them right of use and so appropriate for cost of ammenities to be borne by those who use them, AND privity: HOA can be party to privity even tho not itself owner of nearby land, bc the entity wsa developed by Ps to advance their common interests
Neponsit Property Owners Assn v. Emigrant Industrial Savings Bank
in privity
transferred title to each other
CC&Rs
conditions, covenants, and restrictions
IRNE rship w developer / orig owner (2)
–usu inclues grantor’s own covenant – they will continue to restrict future buyers –if developer dn still own any land usu can’t sue for enforcement (unlike the HOA, not a rep of owners)
IRNE: what to do about unrestricted lots? owned by neighbors
buyer usu on constructive notice
IRNE: unrestricted lots owned by neighbors, contrast 2 cases
Sanborn v. McLean (NR): Ds want to build gas station behind house, covenants on 53/91 lots. Held: uniform nature of properties created inquiry notice, majority restricted, so, common plan, so, IRNE compare: Riley v. Bear Creek Planning Committee: Ps build snow tunnel, orally knew there’d be restrictiosn but weren’t written into plan yet and dn appear in their deed. CA courts: can only enforce if it is written into deed OR declaration recorded w restrictons BEFORE property sold
IRNE: unrestricted lot owned by grantor
determinative: is it on the map/declaraction? (can also depend on if it’s in subdivision…)
Evans v. Pollock
F: subdivision w restricted covenants re lakefront homes, othe rlarge sections dnh specified covenants an dlate rowner tried to build a marina there. H: it’s possible for the IRNE to intentionally onl apply to certain areas of the development
HOAs: how governed
by the declaration itself –sometimes allows modification of rules by board, sometimes requires supermajority of votes
Real covenants vs. equitable servitudes
1) one elements difference: RC needs privity, ES dn. (so harder to prove RC) 2) different remedies: RC also offers possibility of damages
Real Covenants: remedies
damages or injunction
equitable servitudes: remedies
injunctive only
real covenants, need:
ES + PRIVITY
real covenants: elements: writing
1) SoF compliant 2) usu in deed or lease
covenants by implication?
rare (contrast: e.b.i) – can happen if seller fraudulently promises covenant and buyer detrimentally relies, use estoppel theory – extreme cases like forged deeds
RC: elements: notice
1) actual 2) inquiry 3) constructive 4) NOTICE NOT REQUIRED FOR BENEFIT TO RUN W LAND JUST FOR BURDEN
RC/ES – SEPARATE analysis of…
benefit and burden (does each run w the land?)
RC elements: notice: inquiry notice
rarer than E. bc RC is a promise NOT to do something, so likely less visually obvious at the property…but some courts have found that eg all the houses look alike = inquiry notice
RC elements: touch and concern
must connect directly to use of the land – will benefit dominant estate and future owners
no covenants in gross (?)
msut concern THE LAND not something you come to do on my land
remedies: injunctive
declaration from court to eg stop building
remedies: declaratory judgment
the property is yours
Real covenants / equitable servitudes: def
commitments people make in reference to property that bind others and are intended to run w the land
RC: elements: privity
–horizontal –vertical NOTE: HP not required for ben to run w the land, just burden
covenants – 2 elements that DN APPLY TO BENEFITS JUST BURDENS
notice HP
horizontal privity: common law requirement
ongoing interest in same land at same time (eg LLT, mortgager/ee, leaser/ee)
simultaneous horizontal privity
old common law requirement
term/not enforce cov: marketable title acts
c easements, must re-record the cov or it goes away
instantaneous horizontal privity
–current stadard –moment of privity btwn 2 contracting parties REQUIREMENTS: must be established at time of sale (so NOT jusg agreement btwn neighbors, and not a few days later – those would just be ks, not covenants that run w the land) (ppl get around this via straw man transactions)
term/not enforce cov: language i ninstrument
cov title itself sets time limit in cov, possibly w renewal option
Vertical privity (in general)
rshp btwn owner and subsequent owners
term/not enforce cov: merger
burdened and benefitted estates come under common ownership
strict VP
grantor retains NO interest in land (eg not someone w a life estate)
term/not enforce cov: release
all parties affected by cov (burdened and benefitted) agree in writing to term the cov
term/not enforce cov: prescription
open and notorious use, w/o permission, for statutory period
Shelley v. Kramer
F: HOA covenant banning black people H: racial HOA covenants are covered by 14th am state action requirement, bc state courts enforce them N: pretty much limited to these facts now bc of very broad application of state action doctrine
Implied Restricted Negative Servitudes/Easements: why? (3)
–last parcel sold ends up w/o covenant bc orig seller has no remaining land for covenant to benefit –might accidentally leave restrictions off some lots –traditional system problem that later buyers could sue earlier buyers for not following cov (bc they bought on reliance of others) but earlier couldn’t sue later)
F: HOA covenant banning black people H: racial HOA covenants are covered by 14th am state action requirement, bc state courts enforce them N: pretty much limited to these facts now bc of very broad application of state action doctrine
Shelley v. Kraimer
covenants in gross?
No – rule against covs in gross
can HOAs sue?
to enfroce covs, yes – but usually their RTS needs to be stated in deed
IRNS: requirement
evidence of a common plan or scheme
Fontainebleau Hotel Corp v. 4525 Inc
F: D hotel building 14 story addition that will cast shadow over beach area of P hotel H: no right to free flow of light and air across adjoining land of neighbor (unless zoning)…
limits on covs: reasonableness test W
even if somewhat unreasonable, cov will be enforced if: 1) everyone has notice 2) dn violate pbulic policy
14 ways to terminate or not enforce a cov
the big 2: 1) changed conditions 2) undue hardship in common with e. 3) express release 4) by its own terms 5) merger 6) AP/prescription 7) marketable title acts 8) abandonment bad behavior 9) acquiesence 10) unclean hands 11) estoppel 12) laches extra 13) racially restrictive 14) specific state statutes
remedies “property rule”
injunctions
term/not enforce cov: changed conditions (3)
1) conditions have changed so drastically, that enforcement wll be of no substantial benefit to dom estates 2) condition changes INSIDE THE NEIGHBORHOOD 3) focus is on benefitted/dom estate, have they lost the benefit? (NOT burdened)
remedies “liability rule”
damages
term/not enforce cov: changed conditions – who do we focus on?
benefitted estate, have they lost benefit? (NOT the burdened estate or extent to which they’re burdened)
term/not enforce cov: undue hardship: aka
relative hardship
El Di Inc v. Town of Bethany Beach
F: restrictive cov no alcohol sales, changed conditions: brown bagging, sold other places H: cov has changed so much that justifies eliminating (relig com to tourist area) –> change was significant enough to “render the benefits underlying imposition of the restriction incapable of enjoyment”
term/not enforce cov: undue hardship
1) proof of great hardship to servient estate RELATIVE TO SMALL BEN TO DOM ESTATE – greater by a “considerable magnitude.” (if it’s just a burden to servient estate, not impressive–it’s a covenant! after all)
Blakely v. Gorin
F: build high rise hotel w sky bridge vs 16 feet of open space covenant (light, air) H: under state statute, cov should not be enforced–changes in ch/property and neighborhood, impede reasonable use of land for best suited purpose, public interest (taxes) N: MA statute vs CL doctrine – the statute is anti-enforcement
term/not enforce cov: abandonment
benefitted estate has tolerated violations by owners of OTHER restricted parcels in the area for so long that it seems you’ve abandoned your cov
term/not enforce cov: unclean hands
benefitted estate (aka person trying to enforce) has itself violated the cov
term/not enforce cov: laches
unexcused delay – cov has bene ignored or breached for substantial period fo time, and delay in enforcing prompted investment, so now would be unconscionable to enforce
F: P had 2 grocery stores, sold one w noncompete covenant, food desert H: against public policy so won’t enforce covenant. 8 pronged reasonability test: intention, impact on consideration, clear, written/actual notice, reasonable re time/area/duration, unreasonable restraint on trade, interferes w public interest, change circumstances make it unreasonable now? (minority)
Daivdson Brothers Inc v. Katz
unreasonable covenant: minority view (restatement)
broader reasonability test that includes public policy considerations
F: build high rise hotel w sky bridge vs 16 feet of open space covenant (light, air) H: under state statute, cov should not be enforced–changes in ch/property and neighborhood, impede reasonable use of land for best suited purpose, public interest (taxes) N: MA statute vs CL doctrine – the statute is anti-enforcement
Blakely v. Gorin
Factors that show common plan or scheme
1) presence of restrictions in all or most deeds to property in the area,
2) recorded plat showing restrictions, presence of restrictions in last deed,
3) observance by owners of similar development of their land and conformity to written restrictions,
4) language stating the covenatns are intended to run w the land,
5) recording of declaration sting intended to be mutually enforceable
IRNS: notice requirement (3)
relaxed compared to notice requirements in other contexts –inquiry notice when buy in (nature of property) –constructive notice even if it’s just in title of nearby deed
IRNE: who can sue to enforce?
–owners –HOA if says so in declaration –developer, IF retains parcels (restatement more realxed, anyone can)
limits on convenants: examples of possible reasons why (4)
1) public policy/reasonableness, 2) constitutional violations, discrimination under Fair Housing Act 3) restrictions on alienability 4) claims on unreasonable restraint on trade
Real covenants: elements (5)
NOTE: must do separate evaluation for burden and benefit 1) writing 2) notice 3) intent 4) touch and concern 5) privity
equitable servitudes elements
all the same as RC, just dnn privity (iow): 1) writing 2) notice 3) intent 4) touch and concern
real covenants: elements: writing: exception
sometimes exception for IRNS (eg HOAs)
RC elements: notice: inquiry notice–aka
actual implied notice
RC elements: notice: constructive notice
deed research, must also search for other deeds from comon grantor around the same time
factors tending to show NO common plan/scheme
some unrestricted, restrictions not uniform.
RC elements: intent
in deed–clear language indicating runs w the land (ex. “heirs and assigns”). USU courts hold that if it benefits land, it is presumed to run w the land
Neponsit Property Owners Assn v. Emigrant Industrial Savings Bank
F: HOA suing bank for nonpayment of assn fees which are to maintain common areas H: meets requirements to run w the land. T+C: may not have met old requirements re direct c to land, but this court: it gives them right of use and so appropriate for cost of ammenities to be borne by those who use them, AND privity: HOA can be party to privity even tho not itself owner of nearby land, bc the entity wsa developed by Ps to advance their common interests
IRNS followed by all courts?
no, sometimes only if restrictions explicit in deed
to enforce IRNS against homeowner, need (2)
1) evidence of common plan or scheme
2) notice to that homeowner
HOA’s suing is…
exception to rule against benefits in gross
do noncompete covenants T+C the land?
generally yes
W: strict VP or relaxed?
STRICT!
relaxed VP:
ok for grantor to retain some interest in land
term/not enforce cov: statute
sometimes statutes change the standards or specify other ways to get rid of a cov (MA)
when do covenants run w the land? (3)
PRESUMED to run, if –benefits owner of neighboring land –touches and concerns –continues to benefit dominant land (similar to e: presumption for appurtenant)
covenants in gross–exception
allowing HOAs to sue (bc they’re agents of homeowners)
IRNS: purpose
allows for planned communites to exist, covenants that mutually bind and benefit (all parcels intended 3rd party beneficiaries). –mutually enforceable (parties can sue each other)
IRNS: def
WHEN: owner sells parcels w evidence of intent to create common plan or scheme of development, THEN: covenatns made to the seller benefit all parcels w/in the plan AND all parcels w/in the plan are bound by the covenants
IRNS: ways to show common plan or scheme (7)
(not exactly req’d elements tho): –presence of restrictions in all or most deeds to property int eh area –recorded plat showing restrictions –presence of restrictions in last deed –observance by owners of similar development of land and conformity to written restrictions –language stating covenants are intended to run w th eland –recording of declaration showing that covenatns are nitended to be mutually enforceable, providing buyers notice of CCRS (IMPORANT) AND: NOTICE–REQUIRED
term/not enforce cov: acquiesence
benefitted estate has tolerated or failed to object to violations by owner of servient estate
term/not enforce cov: estoppel
reasonable reliance: usu owner of dom estate orally represents to serv estate that she won’t enforce the cov, other party detrimentally relies
servitudes
turns a k btwn 2 ppl about use of land into a k that RUNS WITH THE LAND when it’s sold
affirmative servitude
right to use another’s land for a limited purpose
profit a prendre
easement that lets nonowners collect resources (eg coal) from the land
negative servitude/easement
covenant, restriction on land use
easements vs licenses (and 1 exception)
E: formal, usu permanent, right, interest in land, subject to SoF, transferable – licenses none of these But note: implied easesments are less formal, blurring the line
the only ko transferable license
movie tickets
license examples
come over for dinner (until I revoke at end of nigth), swim in my lake
easements v. leases
lease: possessory rights to use defined space for all uses (unless otherwise specified), Easements are nonposessory
Lobato v. Taylor
F: CO landowners want easement to access Taylor property from back int he time of Mx law H: court finds e. (prescriptive, estoppel, AND prior use) –> previous use permitted, reasonable to foresee change in position (survival/food) and they DID change position (settle land) N: contextual interpretation vs formalist legal analysis
F: CO landowners want easement to access Taylor property from back int he time of Mx law H: court finds e. (prescriptive, estoppel, AND prior use) –> previous use permitted, reasonable to foresee change in position (survival/food) and they DID change position (settle land) N: contextual interpretation vs formalist legal analysis
Lobato v. Taylor
E. by estoppel element #2
licensor KNEW OR SHOULD HAVE KNOWN that reliance would occur
how to interpret ambiguities in e.s?
language, circumstances
courts presumption: appertenant v. in gross?
strong presumption for appertenant
easement: definition
nonpossessory interest to use land of another
F: P claims easement over portion of gravel lot used by trucks to turn around H: prescriptive easement elements…dnh to prove area used w absolute precision, just generally where it was. (C AP: bc claim of right, must look at actual use to define Bs of easement
Community Feed Store Inc v. Northeastern Culvert Corp
equitable limitation –> what is the SCOPE of your easement? (2)
1) is use of the kind contemplated? 2) place an unreasonable burden on the servient estate?
F: P owned full parcel of land w shopping center and apartment building, sold in-between land to D but P wanted driveways to be e. H: Elements work together – apparent and continuous helped fulfill elastic / necessity requirement
Granite Properties Limited Partnership v. Manns
scope of easement: use of kind contemplated: majority/W view (and an ex)
right of way can be used for any reasonable purpose –eg RoW road can be used for utility lines, and ok read broadly to accommodate changes in tech
scope of easement: use of kind contemplated: minority view
limits e. to specific things listed (narrow)
