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)
scope of easement: use of kind contemplated: territory of easement
usu can’t expand territory of your easement (that would be an unreasonable buren…c)
scope of e.: use of kind contemplated: location (majority/W)
majority/W: can’t change the location of your easement –defined by grantor’s intent and instrument at the time created
scope of E: use of kind contemplated: location (minority)
servient estate owner can change the location if s. pays for it
Ps suing Ds who had e. to provide phone and elc but now want to add tv cables H: were E. in gross apportionable to other companies in the future? yes bc exclusive of servient owners
Henley v. Continental Cablevision of St Louis County Inc
scope of e: use of kind contemplated: sub-elements in W (3)
1) RoW can be used for any reasonable PURPOSE 2) usu can’t expand TERRITORY of e. 3) and can’t change LOCATION of e.
scope of e: unreasonable burden on servient estate – (and, distinct inquiry…)
grantor’s intent distinct inquiry from use of kind contemplated (ex. Green–motorcycle use is of kind contemplated (it’s a road) but still mgith be unreasonable burden (they’re racing them)
F: Ps have landlocked parcel, now can no longer exit over another’s property so want E.B.N. over D’s land (used to be 1 parcel) H: landlocked parcel can’t waive its right to EBN even if it lay dormand through transfers of title
Finn v. Williams
scope of e: unreasonable burden on servient estate: grantor’s intent – what to consider?
1) in document? 2) circumstances
ean e. be subdivided? depends on:
appurtenant v. in gross
F: P owns resort and old easement to owner who now wants to build subdivision on what used to be his single family parcel, wants to widen road. H: E. must be divisible or it would destroy its appurtenant character. E. not limited to use contemplated in original grant (acces/egress by single family) N: but they can’t widen the road – so opposite result, bc now can’t build subdivision
Cox v. Glenbrook Co.
can e. be subdivided? apurtenant
majority view: YES – e benefits entire dominant estate and can be apportioned among subsequent owners
5 kinds of easements
1) express (the other 4 are implied): 2) prescription 3) implication 4) necessity 5) estoppel
express (formal) easement: elements (3)
1) in writing 2) intent 3) notice
express easement: in writing (4 requirements)
–subject to SoF –usu conveyed in deed but not required to be mentioned in subsequent deeds –must be written AT MOMENT CREATED –must specify: grantor, grantee, what easement is actually granting
express easement: intent
by grantor, to run w the estate (if ambiguous, circumstances…)
express easement: notice (3 kinds)
actual inquiry constructive
easement: actual notice
eg a writing
F: P had easement over D’s strip of land and using fro road, builds mobile home park and they are racing motorcycles H: the E. is appurtenant bc of presumption in favor (and wasn’t clear from writing) N: ex. of e. being divisible also (applying to all the mobile home owners). Court did agree to equitable limitations–dnw undue burden on servient owner’s estate, so ok limit motorcycle racing
Green v. Lupo
easement: inquiry notice
knew or should’ve known, visible signs of use by nonowner on property
easement: constructive notice
chain of title–reasonable search of registry would lead to discovery of the deed (again, knew or should’ve – dn search registry isn’t a defense)
easement by prescription aka
“the adverse possession easement”
easement by prescription (def)
similar to AP but at the end you get use instead of title
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
can e. be subdivided? appurtenant: basic scenario
owner of dominant estate now wants to divide his estate (eg sell part of it to someone else, or create a subdivision…)
can e. be subdivided?: contrast
just bc you bought a new piece of land next to your old land that was also going to need an e. (eg RoW) – NOT expanded. But if you had divided your land, it would be
Cox v. Glenbrook Co.
F: P owns resort and old easement to owner who now wants to build subdivision on what used to be his single family parcel, wants to widen road. H: E. must be divisible or it would destroy its appurtenant character. E. not limited to use contemplated in original grant (acces/egress by single family) N: but they can’t widen the road – so opposite result, bc now can’t build subdivision
Can e. be subdivided? in gross: 2 kinds
1) exclusive – YES approtionable (you can sell e. to someone else 2) nonexclusive - nonapportionable (you can swim in my lake but I’m going to swim in it too…)
Can e. be subdivided?: in gross: typical example
e. sold btwn utility cos
Can e. be subdivided: in gross: “exclusive” def
exculsive of the grantor
Henley v. Continental Cablevision of St Louis County Inc
Ps suing Ds who had e. to provide phone and elc but now want to add tv cables H: were E. in gross apportionable to other companies in the future? yes bc exclusive of servient owners
How to end an e? (6 ways)
1) express release 2) by its own terms 3) merger or unity of title 4) abandonment 5) AP or prescription 6) marketable title acts
ending an e.: why do you need to?
easements are forever, unless ended
ending an e: express release
bargain for a k to end the e.
ending an e: by its own tersm
eg written e. says expires after x yeras
ending an e: merger or unity of title
can’t have an e. on your own land, so if they merge it’s gone (if later land divided again you’d have to start over to try to get an e)
ending an e.: abandonment
owner of e. indicated by conduct intent to abandon the e. –> hard to show
ending an e: abandonment: EXCEPTION
e.b. necessity can lie dormant
ending an e: AP/prescription
if someone else AP’s your e. (ex. e. holder isn’t using it, someone from another parcel starts benefitting from it)
ending an e: marketable title acts
statutes aying that interests in land have to be re-recorded every x years (by true owner), otherwise not binding
appurtenant e.
easement attaches to the land / runs with
dominant estate
benefitted parcel
servient estate
burdened parcel
Green v. Lupo
F: P had easement over D’s strip of land and using fro road, builds mobile home park and they are racing motorcycles H: the E. is appurtenant bc of presumption in favor (and wasn’t clear from writing) N: ex. of e. being divisible also (applying to all the mobile home owners). Court did agree to equitable limitations–dnw undue burden on servient owner’s estate, so ok limit motorcycle racing
dividing e. appurtenant vocab
“divisibility”
e. in gross
attaches to people
e. in gross example
right to run the phone wires attaches to the utility co (NOT to another piece of land)
e in gross – dom / serv estates?
no, dn exist
dividing e. in gross vocab
“apportionability”
e. by necessity: elements (3)
1) dominant and servient estate were formerly 1 parcel 2) at time of severence, dominant estate became landlocked 3) necessary
e. by necessity: dominant and servient estates formerly 1 parcel (qualifier) (2)
dnh to be immediately before in teh chain of title, and dnn prior use (ok easement be dormant for a time)
e.b. necessity: necessary
more than reasonably necessary – higher standard (now usu means to get there w motorized transportation)
Finn v. Williams
F: Ps have landlocked parcel, now can no longer exit over another’s property so want E.B.N. over D’s land (used to be 1 parcel) H: landlocked parcel can’t waive its right to EBN even if it lay dormand through transfers of title
E. by estoppel c/c license
E. by estoppel starts out as license, goes on or so long and in such a way that it ripens into EBE
E. by estoppel: elements (4)
1) license by the owner to use the land 2) licensor’s knowledge or reasonable expectation that reliance will occur 3) reasonable reliance 4) necessary to prevent injustice
E. by estoppel: license by owner to use land
normally for access purposes
E. by estoppel: c/c prescriptive easement or AP
E.b.E: permission by grantor becomes basis for claim of right…vs in AP permission by grantor is a defense to rights of others
E. by estoppel: licensor’s knowledge or reasonable expectation that reliance will occur (2)
grantor’s intent: NOT did he intend for it to turn into an easement, sino did he allow the use? did they induce reliance? do they actually know that the other party is relying? would reasonable person know?
E. by estoppel: reasonable reliance: define reliance
claimant changed position in reliance on right (usu financially – make investment etc)
E. by estoppel: reasonable reliance: Define “reasonable” (6)
consider –conduct of parties, –oral assurances –social context –amount of time –if LL was expressly withholding e. and why –parties actions
E. by estoppel: extra non-W element
fraud/deception on part of grantor
constructive trust
can force a person to do something w land for benefit of another –> alternative to e.
constructive trust: example
Rose v. Castle Mtn Ranch: rancher lets peopel build cabins on his land but written licenses say revocable 30 days notice, they live there 50 years and he sells land. Remedy–they can stay 13 years
implied easements run w the land IF (3) *a whole separate question!!
1) intended to do so (not just about what grantor wanted, more about circumstances etc as above) 2) reasonably necessary for the enjoyment of dominant estate but (3) relatively high standard for courts to find them
servitude
private agreement between owners
easement by prescription: elements (6)
Use must be: 1) actual 2) nonexclusive (contrast AP) 3) open and notorious 4) adverse/hositle under claim of right or color of title 5) continuous 6) for a statutory period
easement by prescription: adverse/hostile element
NO PERMISSION – hard bar, bc ppl often grant neighbors permission tow alk over their land etc
easement by prescription – c/c AP element (2) and result
Element: PE is nonexclusive of true owner, AP exclusive 2) PE is USE, AP possession Result: 2) PE leads to non-fee interest (no-title)
Community Feed Store Inc v. Northeastern Culvert Corp
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
can’t get e. by prescription bc it’s not adverse or hostile? then try
otherwise if license could be e.b.e maybe
Easement by Implication, aka
easement by prior use
easement by prior use aka
easement by implication
E. by implication: elements (3)
1) 2 parcels previously owned by common grantor 2) 1 parcel previously used for benefit of the other parcel in manner that was apparent and continuous 3) use “reasonably necessary” for the enoyment of the dominat esatate
E. by implication: use reasonably necessary (2)
–no absolute necessity standard –necessity burden is higher when grantor is the dominant estate (You’re the one who sold the land, should’ve put it in the deed then) – but not impossible (dominant estate holder had one in Granite Properties0
Granite Properties Limited Partnership v. Manns
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
takings analysis
1) was there a taking? (all the factors)
2) public use (Kelo)
3) just compensation
landowner vs. finder
–landowner always wins if trespassing
–landowner always wins if it’s in the house or ground (unless treasure trove)
–if in common area, landowner wins if mislaid, finder wins if lost
Original owner over finder
lost or mislaid
finder over original owner
abandoned
landowner where property is found vs finder: landowner gets
finder was trespassing OR private home or embedded in soil (exception: 100+ yo treasure trove) OR mislaid (implied that owner entrusted to landowner)
landowner where property is found vs finder: finder gets
permission to be on property AND property open to the public, OR found in common area (exception: treasure trove) AND: it was lost
finders rule: found on someone else’s land
–landowner always wins if finder trespassing –if finder had permission, but private home or embedded in soil, to landowner –if finder had permission, and open to the public, to finder
finder vs. subsequent possessor
finder always over subsequent possessor (owner/finder varies)
def: mislad
owner intentionally left it somewhere but then forgot where
def: abandoned
owner intent to abandon all rights – lost or mislaid can convert to abandoned if owner INTENTDS to give up claims
Charrier v. Bell
F: P discovers, excavates Indian burial site w/o permission H: legal concept of abndonment does not extend to burial goods (intended to remain in the ground, not to be taken possession of)
lost or mislaid property can become…if…
abandoned, if owner intends to give up claims
F: P discovers, excavates Indian burial site w/o permission H: legal concept of abndonment does not extend to burial goods (intended to remain in the ground, not to be taken possession of)
Charrier v. Bell
finders law: treasure trove exemption
normally, if embedded in soil landowner gets. BUT if finder has permission to be there and it’s a 100+yo treasure trove, finder gets
finders rule: lost
original owner wins
finders rule: mislaid
original owner wins
finders rule: abandoned
finder wins
def: lost
owner accidentally misplaced
Native American Graves Protection and Repatriation Act
if federal land, must repatriate to descendents if can prove cultural affiliation
finder statutes (3)
try to eliminate lost/mislaid/abandoned distinction –finder must bring to police, –gets if not claimed, sometimes rewards required
life estate: reverter?
has REVERSION in O, unless otherwise specified
term of years: reverter?
has REVERSION IN O, unless otherwise specified
restraints on alienation (CL vs now)
CL per se void, now: subject to general test of reasonableness. BUT total restraint on alienation generally void.
times when O can convey
at death, OR WHILE ALIVE
trusts: purpose/relationship
–an alternate way to resolve some future interests issues
trusts–def
grantor conveys property to trustee, for benefit of beneficiary – trustee has legal title but bound to use the trust for the beneficiary
trusts: grantor aka
settlor, trustor
future interests: 3 interpretive rules
(1) can’t grant more than you have [if your estate is encumbered by eg F.I. and you pass it to someone, theirs will be encumbered in the same way too] (2) unless grant has limiting language, presumption that you gave away the full interest (3) whatever is not granted remains with the grantor (ex. if you don’t specify what happens after, it goes back to grantor)
future interests: technical process (6 steps)
1) classify the possessory estate 2) ID the limitations if any 3) is there a future interest 4) is the future interest enforceable? 5) if yes, has the trigger event occurred? 6) if yes, what is the legal effect?
term of years (3)
expires naturally by its own terms after certain # of years –O has revision (unless otherwise specified) –possible have conditions
term of years ex.
O to A for 10 years
future interests: 4 kinds of possessory estates
*you can only have 1!* 1) fee simple absolute 2) fee tail 3) life estate 4) term of years
fi: fee simple absolute
the largest estate you can get – every stick in the bundle, do whatever you want with it
O to A
fee simple absolute
fee simple absolute, ex.
O to A O to A and her heirs*
fee tail
mostly obsolete. will pass to actual blood relatives until bloodline runs out
fee tail: what do courts do when someone tries to make one?: majority
give an FSA instead
fee tail: what do courts do when someone tries to make one?: minority
allow FT for 2 generations (where A is generation 1), in 2nd gen converts to FSA
O to A “and the heirs of his body”
fee tail
life estate
–you can (live?) in property for whole life, but then it reverts back to O (or goes to someone else if designated)
life estate ex
O to A for life O to A for as long as A lives
O to A for life
life estate
O to A for as long as A lives
life estate
life estate per autre vie
life estate measured by someone else’s life: O to A for the life of B. B is the measuring life.
O to A for the life of B
life estate per autre vie
selling life estate?
yes, you can if A sells to X, then X has what A had X has life estate per autre vie – A remains the measuring life
total restraints on alienation generally void bc (2)
—> repugnant to the fee —> NW realty, bundle of sticks
life estate: duties of life tenant to remainderman (3)
1) fudiciary/quasi fiduciary rship 2) can’t injure or dispose of property to injury of rights of remaindermen 3) maintain property in repair, prevent decay and waste
life estate: duties of life tenant: can’t injure or dispose of property to injury of rights of remaindermen – def
ok to use for LE’s benefit as has been used before. If open mine, ok for LE to mine and take the minerals. But if no previous mine, not ok start one
life estate: duties of life tenant: can’t injure or desposte of property to injury of rights of remaindermen – exception
OK TO USE PROPERTY for exclusive benefit of LE (w/in confines of the rule…not reall an exception…)
life estate: duty to keep property in repair: exception/limitation
dnh to improve value of property
life estate: duty to keep property in repair: 2 components
1) pay certain costs 2) not commit waste
life estate: duty to keep property in repair: costs must pay
1) interest on mortgage (BUT PRINCIPAL PAID BY FUTURE GRANTEE) 2) taxes and insurance (but could k around)
life estate: who pays mortgage?
LE holder: pays interest remainderman: principal
life estate: duty to keep property in repair: 3 kinds of waste to not commit
1) voluntary 2) permissive 3) ameliorative
life estate: duty: voluntary waste
acts of COmission to damage property (cutting down trees, demolish the house)
life estate: duty: permissive waste
acts of Omission (failure to make repairs on home)…
reasonableness test for restraints on alienation
weigh harm of restraint vs utility of enforcing
life estate: ameliorative waste
improvements that may improve value of property but remainderman dn nec want (destroys house and makes mansion) NOTE: this was actionable at common law but less favored now
O to A for 10 years
term of years
O to A and her heirs, what does “and her heirs” mean?
fee simple absolute NOTE: THIS DOES NOT MEAN THAT THE HEIRS ACQUIRE ANY RIGHTS…A can still sell it to someone else etc
fee tail ex
O to A “and the heirs of his body”
LL dnh duty to mitigate if
commercial!
IWH
exception
defects must be so substantial that a reasonable person would find the premises uninhabitable. De minimis violations will not suffice.
elements of quiet enjoyment:
existence of a condition that substantialyl inferfered w T’s use and enjoyment,
notice given +
LL reasonable time to cure +
ten T move out ((basically, needs to lead to CE))
for CE or QE must move out w/in…
a reasonable period of time
nusiance elements (4)
1) substantial and 2) unreasonable 3) interference with 4) use and enjoyment of land
nuisance: unreasonable (W) – def
–gravity of harm outweighs the utility of actor’s conduct
Page County Appliance Center v. Honneywell
F: P sold TVs and D’s computer emitted radiation which interfered w displays H: unreasonable interference must consider manner, place, circumstance notice; Negligence not required…can be liable for nuisance even if used highest possible degree of care
nuisance: i relationship w intent and negligence
requires intent (but see def) does NOT require negligence in how you’re doing your activities on the property – more about the EFFECT on others than what you’re doing
nuisance: interference: intent
knew or substantially certain (DNM that your purpose was to annoy your neighbors). but you knew that all that dog noise would result or subtantially certain to result in annoyance to neighbor
difference btwn nuisance and trespass
n. is non-t. inferference (use of MY OWN Property is harming property interests of neighbors. right to quiet enjoyment less than near absolute right to not have physical invasions on land
trespass and nuisance at the same time
if it’s quasi-physical, like smoke
F: P had solar panels on top of his house, D wanted to build HIS house next dor but wold’ve put shade on panels H: P MIGHT have nuisance claim, reasonable use doctrine N: compliance w zoning laws dn automatically bar a nuisance claim NOT LAW NOW
Prah v. Maretti
nuisance: strict liability standard for______
ultrahazardous activities
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)…
Fontainebleau Hotel Corp v. 4525 Inc
nuisance: unreasonable (W) – factor test
1) extent of harm 2) character of harm 3) economic and social value of conflicting activities 4) suitability of the particular use or enjoyment invaded to the particular locality 5) ability of either party to avid the conflict and practicability and fairness of making the party to do so
nuisance: defenses (5) (not nec. absolute)
1) P consented or acquiesced 2) SOL, laches 3) P too sensitive 4) coming to the nuisance 5) right to farm
F: 69 dogs in rural area, barking H: nuisance established, but injunction to have just 6 dogs is inappropriate, need more facts to establish less broad injunction
Dobbs v. Wiggins
F: P sold TVs and D’s computer emitted radiation which interfered w displays H: unreasonable interference must consider manner, place, circumstance notice; Negligence not required…can be liable for nuisance even if used highest possible degree of care
Page County Appliance Center v. Honneywell
nuisance: right to farm defense
farms immune from nuisance liability if facts giving rise to claim ahve existed for specified period of time
nuisance: light and air
generally NO right to light and air under nuisance law
nuisance: light and air rule EXCEPTION
spite fences – if malice is FULL MOTIVE then may be nuisance (but malice as partial motive irrelevant)
ancient lights
NO LONGER IN EFFECT nuisance/easement rule: you could get an easement over the light and air through your neighbor’s inaction for eg 20 years
Prah v. Maretti
F: P had solar panels on top of his house, D wanted to build HIS house next dor but wold’ve put shade on panels H: P MIGHT have nuisance claim, reasonable use doctrine N: compliance w zoning laws dn automatically bar a nuisance claim NOT LAW NOW
nuisance: ways to get your light and air protected (2)
statute easement k
Dobbs v. Wiggins
F: 69 dogs in rural area, barking H: nuisance established, but injunction to have just 6 dogs is inappropriate, need more facts to establish less broad injunction
relationship btwn nuisance and zoning
compliance w zoning laws dn automatically bar nuisance claim (tho in practice if often would) (see Prah v. Maretti)
nusance: substantial (2)
more than aesthetic, effect on reasonable person…
nuisance per se
activity is so disfavored that it will be a nuisance regardless of where or what consequences (criminal activity)
who has standing to enforce covenants?
usu not some other neighbor – just the parties and hteir successors (Neponsit important bc gave HOA privity to enforce)
Popov v. Hyashi
F: P began to catch record baseball in upper web of glove but dnh absolute dominion or control, interrupted by attacking mob. D gets from ground H: both have ownership (P prepossessory interest) and H actual
Pierson v. Post dissent
–social customs (decide by the arbiter of sportsmen) –good for society: foxes are bad for society so must incentivize killing them
Eliff v. Texon Drilling Co.
F: P owned oil rights for reservoir, their oil flowed to neighbors side and then was destroyed by D’s negligence H: law of capture doesn’t absolve D of negligence liability…
law of capture
oil drilling: oil migrates and belongs to whoever takes it out. (bc each owner has equal opportunity to develop)
legal requirements for gifts
–present intent to transfer title –delivery (physical or constructive) –acceptance
gifts revocable? (W)
no – not even for engagement rings
constructive delivery of a gift (ex)
eg of key to locked box
Moore v. Regents of UC
F: Ds took blood and made T cell line, P says it’s still his property bc his body H: P dn retain ownership interest in blood after removed from his body (statute)
is sperm property?
wasn’t in recent unpublished case – “all my property” to my kids, but fiancee got sperm
F: ppl who bought land from tribe directly vs. ppl who bought from US gvt (who had gotten from tribe by treaty) H: –US gvt will not recognize title of lands sold by Indians to individuals. –Natives keep occupancy (legal right) bc –US gvt has exclusive right to acquire lands from Indian nations –Soveirgnty justification–courts bound by principles of own nation –Discovery/conquest –Indians dn own property by European standards and can’t be incorporated into our society
Johnson v. M’Intosh (6 pt Holding)
F: Ds took blood and made T cell line, P says it’s still his property bc his body H: P dn retain ownership interest in blood after removed from his body (statute)
Moore v. Regents of UC
F: P began to catch record baseball in upper web of glove but dnh absolute dominion or control, interrupted by attacking mob. D gets from ground H: both have ownership (P prepossessory interest) and H actual
Popov v. Hyashi
H: P did not, by mere pursuit, acquire property interest in fox. Would need seizure, mortal wounding, deprive of liberty
Pierson v. Post
F: quasi-public NJ nonprofit limits access to dry sand H: public has right to enjoy tidal lands, this extends to right to gain access through dry sand owned not just by a municipality, but a quasi-public body (policy). Must open assn membership N: dn reach issue of fully private lands but leaves door open that may be nec in future “to satisfy the public need”
Matthew v. Bay Head Improvement Association
F: P owned oil rights for reservoir, their oil flowed to neighbors side and then was destroyed by D’s negligence H: law of capture doesn’t absolve D of negligence liability…
Eliff v. Texon Drilling Co.
3 types of remedies
damages injunctive declaratory judgment
public trust doctrine: def
the beaches (or at least the waters) are for everyone
Matthew v. Bay Head Improvement Association
F: quasi-public NJ nonprofit limits access to dry sand H: public has right to enjoy tidal lands, this extends to right to gain access through dry sand owned not just by a municipality, but a quasi-public body (policy). Must open assn membership N: dn reach issue of fully private lands but leaves door open that may be nec in future “to satisfy the public need”
3 kinds of remedies
damages injunctive declaratory relief
public trust doctrine: current status
SC has given it to the states some states: swimming/sunbathing/sand all part of it other states: very limited – just fishing sometimes addressed through prescription/easements or custom of access
post M’Intosh native property rights
M’Intosh still law – Indian lands held in trust by secretary of state, need gvt permission to buy or sell
Pierson v. Post
H: P did not, by mere pursuit, acquire property interest in fox. Would need seizure, mortal wounding, deprive of liberty
bundle of sticks (7)
give/sell, divide, exclude, limit, possess, enjoy fruits/profits, destroy
possible justifications for property rights (5)
first possession labor and investment (inc “mixing”) efficiency distributive justice soveirgn authority
Johnson v. M’Intosh (6 pt Holding)
F: ppl who bought land from tribe directly vs. ppl who bought from US gvt (who had gotten from tribe by treaty) H: –US gvt will not recognize title of lands sold by Indians to individuals. –Natives keep occupancy (legal right) bc –US gvt has exclusive right to acquire lands from Indian nations –Soveirgnty justification–courts bound by principles of own nation –Discovery/conquest –Indians dn own property by European standards and can’t be incorporated into our society
current state of human-body-as-property law
usu ok compensate for fully renewable body resource (sperm, hair, eggs…)
trespass – elements (4)
1) unpriviledged 2) intentional 3) intrusion 4) on property possessed by another
trespass: unprivileged – exceptions (2)
necessity public policy
trespass: unpriviledged – ways owner can limit consent (2)
–can revoke any time –License can be LIMITED (come here but not play blackjack)
F: P excluded from casino for card-counting H: owner of a property open to public dnh right to exclude individual at their discretion OJO! MINORITY VIEW!
Uston v. Resorts International Hotel Inc
F: D drove mobile home across P’s property despite P’s adamant refusal H: intentioanl trespass justifies award of punitive damages despite minimal compensatories. Actual harm in every trespass. Policy considerations.
Jacque v. Steenberg Homes
F: D legal aid atty trespassing charges for coming on farmer’s land to visit farmworkers H: owner’s right to exclude dn extend to providers of gvt services attempting to visit farmworkers (policy)
State v. Shack
‘trespass’ – private property open to the public
majority: no right to access even ‘public’ places EXCEPT: illegal (protected class) discrim –common carriers
Uston v. Resorts International Hotel Inc
F: P excluded from casino for card-counting H: owner of a property open to public dnh right to exclude individual at their discretion OJO! MINORITY VIEW!
private property open to the public – current majority rule (inc 2 exceptions)
no right to access (exclude anyone for any reason) except –common carriers –protected class based illegal discrimination
private property open to public: common carrier exception def and reason
transit (plane/trainbus), inkeepers BC: monopolies limit freedom, big consequences for people if they have to sleep outside
interstate commerce act
sets common carriers as an exception to nl rule that dnh to allow anyone in your ‘public place’
private property open to public MINORITY VIEW
reasonable right of access
private proeprty open to public – 2 exceptions
–common carriers –protected class based illegal discrimination
civil rights statutes impacting public access
–1964 –1866
Civil Rights Act 1964
full and equal enjoyment of public accom (hotel/restaurant/amusement) based on protected class
Civil Rights Act 1866
can make/enforce ks – recently interpreted by some courts as granting borader rights since 1964
trespass: unprivileged: necessity exception
ok if to prevent more serious harm (save someone from burning building)
trespass: unrivileged: public policy exception
–ex: antidiscrim statutes, free speech, etc –different rules of access/occupancy when property open to public
State v. Shack
F: D legal aid atty trespassing charges for coming on farmer’s land to visit farmworkers H: owner’s right to exclude dn extend to providers of gvt services attempting to visit farmworkers (policy)
trespass: intentional
voluntary act –strict liability, so mistake still liable (walked vs was carried)
trespass: intrusion (2 exs)
the moment you enter the property –includes object extending over boundary –above or below the surface
trespass: intrusion: limits of property
column from core of earth to top of sky.
Jacque v. Steenberg Homes
F: D drove mobile home across P’s property despite P’s adamant refusal H: intentioanl trespass justifies award of punitive damages despite minimal compensatories. Actual harm in every trespass. Policy considerations.
trespassing: intrusion: when?
the moment you enter the property
trespass: limits of property: EXCEPTIONS (2)
overhanging airplanes deep down fracking
