Property I -- Through RAP Flashcards
Fariness Based Arguments
- Rights based, morality based
- As humans, what obligations do we have to each other
- Why this course of action/standard etc. treats parties fairly/equally or not
- Why a given solution is morally fair or not
Utility Based Arguments
- “What are the overall consequences for society that comes from this?” What does the law incentivize/disincentivize?
- What types of behaviors will this given rule or dispute incentivize for other people in the future?
- What are the benefits for society answering this question one way or another?
- “Best overall consequences”
- Maximizing general welfare, etc.
Institutional Arguments
- In what situations is it appropriate for these competing claims to be resolved by the legislature/judiciary/juries/municipalities?
Administrability Arguments
Bright line rules vs. Discretionary Standards
Right / Duty
Right to exclude / duty to not enter
Privilege / No-Right
Pilots have privilege of access above a certain altitude / Jaques have no-right to raise a problem with this in court
Immunity / Disability
Immunity from being forced to make easements / The party who would impose easements is disabled
Defenses to Trespass
*Necessity
*Consent (habitability cannot be contracted around, minimum standard)
*Public Policy
CRA 1964
*Protected Categories: Race, color, religion, national origin
*Places: PUBLIC ACCOMMODATIONS: Lodging, restaurants, entertainment; + contained within another place
Public Trust Doctrine
All tidal waters are held in trust for the public
Beach Access Standards
*Robust Exclusionary Rule
*Strong Right To Exclude
*Statutory Unfettered Access
*Reasonable Access Standard
Robust Exclusionary Rule (Severance v. Patterson)
All dry sand beach titled in private hands is closed to the public unless the state can deliberately prove that one of the common law doctrines (implied dedication, prescription [adverse possession], custom) appears.
Strong Right to Exclude (TX)
*1959: TX Open Beaches Act – Set out procedures under which the state gains access to a beach based on other common law doctrine (ex. implied dedication, prescription [adverse possession], custom) all of which take time to develop and ripen into a claim [formalized these procedures]
Statutory Unfettered Access (OR)
Custom of public use creates a perpetual easement
Reasonable Access Standard (NJ) (Matthews v. Bay Head)
- Only within the context of a quasi-public organization that was basically acting like a town, which pushed them to consider the beach as public –> reasonable access to the beach) (later expanded to private beaches as well)
- Public Trust Doctrine
Dedication
Private owner gifts (OFFERS) real property to general public (who ACCEPT).
Prescription
- (Easement by)
- “Public has used property possessed by another for a particular purpose for a long time”
- Basically AP but not EXCLUSIVE. Confers usage rights but not ownership rights.
Adverse Possession (6 Elements)
- Actual entry (Not shared w/ possessor or public at large)
- Exclusive (Exclude others as if owners of land)
- Open and Notorious (Owner: constructive notice)
- Adverse Under a Claim of Right (State of Mind, presumption of non-permittance. Defense: owner permission)
- Continuous (Using the property in the usual way that a reasonable true property owner would use the property)
- For the Entire Statutory Period
Adverse Occupant State of Mind Requirements by Jdx
- Objective (DGAF)
- Good Faith
- Intentional Trespass / “Bad Faith”
Color of Title
Defective and thus invalid deed, but that entitles one to the property. Can affect ACTUAL (though only AP’d a portion, can expand to whole if had CoT) and SoL (lessens period) requirements.
An adverse occupant with CoT must still hit all 6 elements to qualify.
Tacking (Brown v. Gobble)
IF F and G were in PRIVITY (voluntary transfer either of an estate and land [recognized legal interest in land] OR possession of that land) then the time periods of their ownership can be tacked together (considered uninterrupted) [Applies to both applicants and owners alike]
Private Nuisance Elements (3)
- Substantial Interference
- Unreasonable Interference (Dobbs Considerations Here)
- Relating to the use and enjoyment of land
6 “Reasonability” Nuisance Considerations (Dobbs v. Wiggins)
- Utility of D’s conduct (whether D is engaged in a useful enterprise) (valuable conduct?)
- Gravity of harm to P (how bad?)
- Suitability to the area (why here)
- Priority of use (#first)
- Cost to P and D of avoiding the harm; (just move lol? /j) and
- Abatable (can D or P mitigate the effects of their property, practicability of abating nuisance) (try harder? /j)
Affirmative Defenses for Nuisance
- Unusual Sensitivity (Gravity, not gonna win bc based on reasonable person)
- Coming to the nuisance (Prio of Use)
Anticipatory Nuisance
Makes it hard to bring a nuisance suit before the nuisance has resulted in any harm, must be so abundantly clear that harm would happen before anything actually happens
Servitude
A right or obligation that “runs with the land,” non-possessory interest made to either avoid conflict or mutually benefit
Affirmative Servitudes / Easements
Rights to use SOMEONE ELSE’S LAND for a limited purpose
* Right of way
* Profit a prendre
Burden/Benefits of Servitude
Burden: Belongs to Burdened/Servient Estate
Benefit: Dominant Estate
Appurtenant Estate
A dominant estate (or person) is benefitted at the hands of the servient estate
In-Gross Servitude
Benefit of the servitude is held by a particular individual or entity rather than running with a parcel of land (runs with person or entity)
Formal/Express Easement Creation
“Run with the land” if:
1. In Writing (complies SoF)
2. Notice (Actual, Inquiry, Constructive) by Subsequent Owners @ Purchase
3. Intent by OG Grantor to Run (Actual or Inferred)
Statute of Frauds
Requires easements to be in writing (signed by grantor, sufficiently describe the easement and grantee) to be enforceable.
- Prevents someone from having to hand over land with only an oral agreement
- BUT ALSO ALLOWS FRAUD bc someone can renege on an oral agreement
Lease
Possessory right to use a defined space for all uses not explicitly/implicitly prohibited in lease
License
Limited rights to enter or use land. Do not run with the land. Revocable at will by grantor.
Re: Easement by Estoppel
Informal Easement Creation (6)
- Prescription
- Custom
- Public Trust
- Estoppel
- Prior Apparent Use
- Necessity
Easement by Prescription
Affirmative use of property belonging to another that is…
* “open and notorious”
* Adverse (i.e., without permission)
* Continuous/uninterrupted
* Lasting for statutory period
AP but no exclusivity. Use rights, not ownership.
Easement by Custom
OR Beach Access
Easement by Public Trust
Beach Access: everyone has a right to the public waters
Matthews v. Bay Head Improvement Assoc. (NJ)
Easement by Estoppel
License becomes irrevocable and is converted into a property interest by estoppel.
Affirmative use of property belonging to another that is
* Permitted by owner (license)
* Foreseeable reliance on continuation by user
* Actual reliance on continuation by user
* Necessary to prevent injustice
Lobato v. Taylor
Easement by Necessity
- 1 parcel owned by grantor is subdivided, upon subdivision, dominant estate became landlocked
- (Majority) Strictly necessary to de-landlock the property + intent of the parties to make it that way
- (Minority) Just strictly necessary
Finn v. Williams
Easement by Prior Apparent Use
- 2 parcels previously owned by grantor are subdivided
- 1 parcel previously used for the benefit of the other in an apparent and continuous manner
- Use is “reasonably necessary” or “convenient” for enjoyment of the dominant estate
- Grantor must show a higher degree of necessary than a grantee
Granite Properties v. Mann
Modifying and Terminating Easements
- Agreement
- Own Terms
- Merger
- Abandonment
- Adverse Possession or Prescription
- Frustration of Purpose
Negative Servitudes / Covenants
Govern own land. Allows one to compel another to either
* Refrain from doing / Do something on their own land
Real Covenants
Enforceable via $ damages
Equitable Servitudes
Enforceable by injunction
Considerations in IDing Real Covenants and Equitable Servitudes
- Writing
- Intent
- Notice (RC: HP/VP; E: A, C, I Notice)
- Touch & Concern the Land
Notice (Equitable Servitudes)
Actual, Constructive/Record, Inquiry
Horizontal Privity
Promise made between OG covenantors in course of sale/voluntary exhange of property. NOT “over the fence” chat or agreement after/not at same time of sale.
Vertical Privity
Relationship between OG parties and successors. Formal conveyance of land.
STRICT: Grantor doesn’t retain future interests in land (VP at sale, not lease)
RELAXED: Allows covenants to run to all those assigned possession, like lessees.
Touch and Concern the Land
- Has some effect on the use and value of the land
- Obvious in land conveyance but harder for stuff like fee payment (Neponsit)
Implied Reciprocal Negative Servitudes
- Lack of writing + promise to refrain + benefits and burdens reciprocal to all bound by servitude
- Imply that when an owner sells a number of parcels with evidence of intent to create a **common plan or scheme of development **then:
- (1) covenants made to seller benefit all parcels within the plan
- (2) all parcels within the plan are bound by covenants
Considerations Showing a Common Plan (6)
- Presence of restrictions in all or most deeds to property in the area
- Recorded plat (map) showing restrictions
- Presence of restrictions in the last deed (since the grantor retains no land left to be benefitted, the suggestion is that the intended benis of the promise are the other lots in the neighborhood)
- Observance by owners of similar development of their land and conformity to written restrictions
- Language stating that the covenants are intended to run w the land
- Recording of a declaration stating that the covenants are intended to be mutually enforceable
Common Interest Communities
Multiple dwellings joined by servitudes providing shared rights in common elements (roads & recreational facilities, amenities) or shared obligations to HoAs that enforce covenants and enact rules for community.
HOAs and COAs
Created by DECLARATIONS.
CC&Rs: Conditions, Covenants, Restrictions put in Declaration or Deed. Function like local government, owners vote, but need supermajority to amend initial covenants.
Concurrent Tenancies
Each tenant has the right to possess the entire parcel, share profits (rents and royalties), obligation to contribute to basic costs of maintaining property (mortgage and property taxes) unless all co-tenants agree otherwise
TICs and JTs
Tenants in Common
- 2+ people have an undivided fractional share, use rights to the entire property.
- Created by severance of a JT, inter-vivos conveyance, devise, intestate succession, divorce
- Ended by partition
- No Right of Survivorship
- Separate share can be devised/passed via intestacy
Can lease his share of common interest to entire parcel without consent of other tenant, proper remedy partition.
Joint Tenancy
- 2+ people have an undivided EQUAL share, use rights to the entire property.
- Created by conveyance or devise “to A and B as JTs with Right of Survivorship”
- Ended by: Conveyance by a JT; partition; death of 2nd to last JT –> TICs
- YES Right of Survivorship
- Separate share canNOT be devised/passed via intestacy
Can survive a lease, but not death of a lessor.
JT Four Unities
- Time (interest created @ same time)
- Title (same instrument, unless co-adversely possess which is no instrument but still counts)
- Interest (= fractional undivided interests in property lasting for same amount of time)
- Possession (entire parcel)
Renovation
JTs do not generally have to cover the cost of renovation made by another JT. When B invests in an improvement on his own, he is not entitled to contribution by JT A. He does get any enhanced value resulting from that improvement if property is sold.
Division of Benefits and Expenses
Tenant can seek judicial accounting to compel payment or share of profits.
Ouster (Generally)
Affirmative act of exclusion that leads to deprivation of a co-tenant’s right to possess the whole
Types of Ouster
- Traditional (barring door)
- Constructive (divorce, etc.)
- Fault (ousted tenant can recover rent from co-tenant with house IF ousted tenant not at fault –> who destroyed the marriage)
- Need (fault irr., equitable distribution: does tenant in possession have resources to pay rent?)
Partition in Kind
- Divide the property itself among co-tenants
- When property cannot be divided in parcels of exactly proportional value, co-tenant receiving disproportionate value pays other co-tenant OWELTY to compensate for the difference
Partition by Sale
Orders property sold, on the open market/at auction, proceeds divided.
Can be ORDERED if
1. Division of the parcel is not practiable
2. PIK will create “great prejudice” “substantial injury” or be “inequitable” to tenants
Some courts only take material value into consideration, defining “substantial injury” as when fair market value of each cotenant’s share is less than it would be if they sold.
Presumption towards PIK but most courts end up in PBS
Dead Hand Control
Owners who seek to control who owns property long after their deaths. Promotes owner interest, enhances alienability.
* Limits freedom of future owners to control property, undermines authority of future owners and the efficient use and transfer of property
* RAP’s ENEMY
Durational Language
so long as, during, while, still
FS Determinable –> Possibility of Reverter
Conditional Language
on condition that, but if, provided that
FS Subject to Condition Subsequent –> Right of Re-entry
Vested Remainder
- Remainder to persons who are ID’ble at time of initial conveyance, AND
- For whom no conditions must occur before future interest becomes possessory (other than the death of the life estate tenant)
Contingent Remainder
1.Remainder will only take effect if an uncertain event occurs, OR
2. Remainder will only go to a person who is not ascertainable at time of initial conveyance
RAP
- State title as if no RAP: ID vulnerable interests
a. Eligible:
i. EI
ii. CR
iii. VR Subject to Partial Divestment - What is needed for vulnerable interest to vest or fail?
- Circle all “lives in being”
- Will that interest definitely vest or fail within life of all circled + 21 years?
- If YES –> VALID; if NO –> VOID (strike void interest and restate title)
Vulnerable Interests
- EI
- CR
- VR subject to Partial Divestment
