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Property Law Flashcards

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1
Q

Rivalrous

A

Your use does interfere with another use of information

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2
Q

Non-Rivalrous

A

Your Use of Information does NOT interfere with others’ use of information

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3
Q

Excludable

A

You can exclude others from your property - i.e. Physical property

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4
Q

Non-Excludable

A

It is difficult to exclude others from your property - .e. information

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5
Q

Defenses to Property Rights

A
  1. Eminent Domain
  2. Easements
  3. No racial covenants
  4. Adverse possession
  5. Zoning laws
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6
Q

Tragedy of the Anticommons

A
  • Multiple owners hold rights to a scarce resource
  • Private land and others can’t get to resource (too many rights to exclude)
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7
Q

Tragedy of the Commons

A

Land in common is overused

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8
Q

Three Rights of Property

A

(1) right to exclude:
(2) right to transfer
(3) right to use

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9
Q

Locke Labor Theory

A

Property is the way to reward your labor: put work into something, should be able to reap the reward

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10
Q

Personhood Theory

A
  • How you express yourself in relation to the environment
  • Person’s will having an effect on the world
  • Personal property vs fungible property
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11
Q

Utilitarianism

A

:greatest interest of society: encourages land development and overuse: prevents tragedy of the commons

  • give just enough protection for people to create works that otherwise wouldn’t but also don’t want to give too much protection to those who would create things anyway
  • utilitarianism justification of property:
    (1) incentives for development (private property fixes it because the right to exclude helps so others don’t take your idea or work you’ve done to your land)
    (2) prevention of depletion of finite resources (scarcity: tragedy of the commons)
  • scarcity: privatization has worked for certain industries (lobsters & oysters) to prevent the tragedy of the commons)
  • in other industries, it’s not necessary
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12
Q
  • First occupancy or possession
A
  • First to possess an item owns it
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13
Q

Liberty or civic republicanism

A
  • Designed to implicate democratic self government
  • If I have my own property maybe that allows me to play a greater role in the government
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14
Q
  • Distributive justice or fairness
A
  • Property can be used to give justice
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15
Q

Pierson v Post

A

Trespass on the case (less direct than trespass): Post was fox hunting with dogs on common land when Pierson stepped in with knowledge that Post had been hunting the fox and killed it himself.
Holding: pursuit alone is not enough: actually have to capture it or deprive it of its natural liberty through something like a net or a trap (Dissent: “reasonable test”: not clear, vague, & subjective)
-Policy reasoning: want foxes killed (Dissent: focuses on pursuit)

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16
Q

Popov v. Hayashi

A

Barry Bonds’ record-setting home-run baseball; MLB didn’t have a claim to the ball once in play the first person in possession is the new owner; ball hits Popov’s glove because of crowd that jumped on him: Hayashi, a bystander, picked it up. Court sold the ball at auction & split the $

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17
Q

Ghen v. Rich, U.S. Dst. Ct. – MA (1881)

A

Admiralty suit to recover the value of a fin-back whale: whale was found stranded on the beach and instead of sending word to the town, as custom, he took it to an auction and sold it to respondent (they didn’t know who killed it but did know someone in the business killed it)

  • custom: whaler wins: when a whale is harpooned, it pops to the surface, whaler is sought and told about it (may not look at the future of the resource as much; sometimes looking to the industry is best)
  • if apply Pierson v. Post, whaler still wins: mortal wounding is enough, dead: deprived of its natural liberty
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18
Q

Keeble v. Hickeringill (1707)

A

P had a decoy pond to trap ducks, D had his own pond but shot his gun to scare the ducks away from P’s pond

  • D tries to hinder someone’s trade and livelihood (could have built a better duck pond and that would have been competition on the merits)
  • P wins: interference with business interest: laws against unfair competition/malicious interference
  • policy: consistent with Pierson v. Post: help kill as many ducks as possible
  • constructive possession: not actual possession- continuation of possession as long as you have the intent and maintain ability to control (when duckies are on your land)
  • policy purpose: to discourage trespass
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19
Q

Relativity of title

A

look at relation of title of parties and it’s not always with the rightful owner

-title isn’t an absolute thing: can occur between different parties

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20
Q

Domesticated animals

A

owner has rights to it: want to encourage domestication of animals and reward the owner but need to be sure to warn others that it is domesticated

  • if it’s not typical of the area: obviously domesticated
  • if it is typical of the area: need to do more to warn others
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21
Q

Eminent domain

A

government can take your land for public interest but must show significant interference

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22
Q

Fugitive resources

A

resources not owned by anyone

  • oil and gas are collected in underground reservoirs
  • today, probably have an injunction v. excessive drilling: policy matter: don’t want to use up all the resource: want the resource to be used in the future (limit on the rule of capture)
  • not allowed to drill at an angle to cross someone else’s property
  • surface water: (now, can’t take as much as you want, because it’s not in the best interest of the resource)
  • prior appropriation: 1st to capture and put to beneficial use is the owner
  • riparian: landowner along the source owns it
  • groundwater:
  • English rule: draw whatever want (similar to capture rule)
  • American rule: can’t waste it (must be reasonable: encourage development)
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23
Q

Externalities

A

When a person does not consider the full impact of their action

  • Not thinking about 3rd parties
  • Resources can be misused
  • i.e pollution, overuse
    1. Can be positive
      • Music, flower boxes
      • Things that benefit the community as well
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24
Q

Cyber Property

A
  • The right to exclude others from right to access to a network connected resource
    • Libertarian’s – same rights as real property – transferred
    • Trespass to chattel
      1. Use of, interference with, a persons tangible property – you must show harm.
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25
Q

Abuse of right

A

In exercising their rights there is an intent to harm others

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26
Q

Coase Theorum

A
  • In the absence of transaction costs (costs of entering into negotiation) it doesn’t matter if the defendant is liable because the parties would negotiate for the efficient use.
  • Regardless of the law, the parties may still find it in their best interest to negotiate
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27
Q

Adverse Possession Justifications

A

(1) statute of limitations: imp. to give the initial owner the opportunity to reestablish ownership (policy: adverse possessor is likely to develop more once receiving title from owner who was sleeping on it)
(2) protect expectations: protecting the interest of neighbors, who think the adverse possessor is the owner (and protecting the expectations of the adverse possessor)
(3) quieting title: find out who the owner is which provides proof of title and corrects errors

*(4) personhood: property is the extension of personhood and the property owner should be bound to find out who is on his land and get them off

-look at gain & loss: if 20+ years go by and the owner tries to take back: no real gain to owner but big loss to the adverse possessor- it becomes a part of their personhood

*(5) diminishing marginal utility of income: look at the wealth reduction in adverse possessor compared to owner

-owner leaves for 20+ years and comes back, significant wealth reduction to the adverse possessor but not a big gain to the owner

*(6) prospect theory: loss of an asset is felt directly (adverse possessor has land taken back) while gaining land that has been developed by an adverse possessor (not as much as a gain as the loss of the adverse possessor)

(7) promote development: of wilderness areas
(8) penalty (sleeping) theory: penalize owner for sleeping on their rights; focus is on the owner: don’t like what he’s doing & punish

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28
Q

Adverse Possession Requirements

A

(1) actual entry: gives exclusive possession/right- want to be sure statute of limitations has begun to run (not shared with landowner)
- allows owner to commence action for trespass (reflects earning principle)

(2) open and notorious possession: penalize owner by providing notice that someone is on the land: attentive landowners would have notice (reflects sleeping principle)

  • threshold is lower if it’s wilderness: ex: hunting, timber, fishing, post signs
  • below land? Don’t know who is under it so notoriety is an issue
    (3) continuity: act as the owner would: depends on the nature of the property (some require more efforts than others)
    (4) adverse/under claim of right:
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29
Q

Three States of Mind of Adverse Claim of Right

A

(1) objective view: (MAJORITY)

  1. State of mind is irrelevant
  2. The majority approach
  3. Look at other qualifications and ignore intent

(2) good faith standard: Adverse possessor thinks they own property
(3) aggressive trespass standard (bad faith): Adverse Possessor knows they do not own he property

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30
Q

Claim of Title

A

one way of expressing the requirement of hostility or claim of right on the part of any adverse possessor

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31
Q

color of title

A

refers to a claim founded on a written instrument (deed/will) or judgment or decree that is for some reason defective and invalid (England & most juris don’t require this) can get all of the land described in the deed if you adversely possess part of it

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32
Q

Van Valkenburgh v. Lutz, Ct Apps: NY (1952)

A
  • Lutzes build house and walkway over other nearby lots to have easier access to their house but then planted veggies, fruit trees, chicken coops, and junk. Van Valkenburghs later bought the lots that they have cultivated and put up a fence to keep them out. Lutzes still wanted to use the easement to get to their land.*
  • Q: what needed for adverse possession? “actual occupation by claim of title” shown by: (1) protected by substantial enclosure (2) usually cultivated or improved
    (1) no enclosure here: no fence or anything
    (2) usually cultivated? Ct doesn’t see as sufficient: said have to cultivate the entire area
  • Dissent: Lutzes cultivated from one side to the other and don’t have to cultivate whole premises anyway
  • CT: Lutz admitted knew shed not on his land and was not in good faith & also said mental state was missing for hostile takeover: Ct had it out for Lutzes: here, he was going to lose either way: either it had to be in good faith or else in bad faith
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33
Q

Adverse Possession Doctrines

A

Maine Doctrine: The occupant must intend to take the property and be hostile, cannot be a mistake rewards intentional wrongdoing

Connecticut Doctrine: criticized Maine doctrine and said it’s not an inquiry into the adverse possessor’s mind: instead, objective standard where state of mind isn’t determined (Mannillo v. Gorski (1969) (Supr. Ct NJ)

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34
Q

Boundary Dispute Doctrines

A

Normally boundary disputes are NOT adverse possession due to lacking open and hostile.

(1) agreed boundaries: oral agreement is enforceable if accepted for a long period
(2) acquiescence: long acquiescence is evident of agreement between parties fixing boundary line because owner knows but doesn’t do anything to stop it (similar to having permission)
(3) estoppel: one neighbor makes representations about the location of common boundary line & other neighbor relies on it

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35
Q

Innocent Improver & Relative Hardship Test

A

Innocent Improver: modern view:

  • forced sale to mistaken builder; or
  • option of owner to buy the improvement from mistaken builder

Relative hardship test: weigh the hardship to P if it’s not removed (the structure mistakenly built) to the hardship of D if you do remove it:

  • if so minor, relief may be denied all together
  • if so substantial despite good faith, removal may be forced
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36
Q

Howard v. Kunto (1970)

A

Takeaway: the use of the land as normal is enough, the land was used as a summer house, but this was enough for continuous for Adverse possession

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37
Q

Tacking

A
  • *Time:** time- add together two possessors’ time in possession to establish continuity of possession
  • for adverse possession, it makes it more likely that Statute of Limitations will be satisfied
  • *Space/location:** – one can own land and then add a piece on to the connected land
  • Privity – THIS IS THE KEY – need Privity
    1. In a specific relationship between possessors – i.e a contract, deed, voluntary transfer, will,
    2. Kicking someone out or abandoning the land does not constitute privity
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38
Q

Disabilities

A
  • helps the owner and gives them more time than they typical adverse possession
  • You get to choose your disability if you have multiple
  • Examples:
    • Minor
      1. under 18
      2. 13 is the optimal age for the minor (varies in jurisdiction)
        • Add the 5 year differential to the standard 10 years
        • Below 13 is better
          1. Unsound mind
      3. Imprisoned
    • May have longer to retain property to extend the statute of limitations
    • Rules:
      1. You cannot tack together disabilities, only the first one counts
      2. The disability has to exist at the time the cause of action accrues – the time of entry
        • You only care about the owner – don’t care about the heir
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39
Q

Adverse Possession of Chattels

O’Keefe v. Snyder (NJ)

A
  1. Stolen paintings case
  2. Statute of limitations
  3. Serve beneficial purposes
  4. Give certainty and allow us to go about business to know who owns an item
  5. Discovery Rule
  6. Determines when the statute of limitations begins of run, and does not start until the injured party becomes aware they lost that property
  7. “Cause of action does not accrue until the party discovers or should have discovered the facts that form the basis of the cause of action”
  8. More detail on the facts the better
    o Identity of taker
    o What was taken
  9. With land it is not moveable, we know where it is, with chattels they can be moved, it may not be obvious where it is
  10. Tacking is allowed
    • Privity is necessary
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40
Q

Guggenheim v. Lubell (NY 1991)

A

New York Demand & Refusal Rule: Statute of Limitations doesn’t begin until owner makes a demand and it’s refused: gives even more protection (gives a lot more time)

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41
Q

Purchasing from a Thief?

A
  • Good faith parties – policy questions
  • Purchaser – may have a good faith argument – may be an innocent party
  • Owner – Protections
    1. It is their property
    2. Don’t want to encourage theft
    3. Want to encourage creation – locke labor
    4. Is there anything else they could have done?
  • Policy Reading
  • Stolen – Owner to thief to purchaser
    1. Should favor the owner because purchaser dealt with thief
  • Purchase – Entrust
    1. Owner – Entrustee – Purchaser
    • Owner voluntarily doing something – entrusting to someone
    • Purchaser should be protected
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42
Q

Intestate/ Intestacy

A

Someone Dies without a will, who gets their possessions?

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43
Q

Heir

A
  1. Issue (children, grandchildren) – split evenly between them today
  2. Ancestor (Parents)
  3. Collateral (Siblings, niece/nephew, aunt/uncle, cousin)
  4. Escheat – if there are no heirs then it goes to the state
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44
Q

Primogeniture

A
  • Old way of doing things
  • Went to the eldest son, then the eldest son’s descendants
45
Q

Fee Simple Absolute

A
  • O gives the property to A no matter what
    • Most powerful interest in property
    • If A dies, A’s heirs take it (nothing left for the future)
  • No future interest (A gets for life, if dies -> A’s heirs)
46
Q

Life Estate

A
  • If O gives prop to “A for life”, then A -> B, B only has until A dies, then it goes back to O
  • (A’s life is the only one that matters when give to “A for life”
  • Reversion: interest goes somewhere when A dies: back to O
47
Q

Restraints on Alienation

A

(1) disabling restraint: very strong limitation: grantee may not transfer interest at all

(2) forfeiture restraint: try to transfer and it’s forfeited and lost to another person

(3) promissory restraint: grantee promises that his interest won’t be transferred (less strong: K-like so damages are the result)

48
Q

Waste for Present & Future Owners

A
  • Don’t want A (current) to interfere with interests of B (future) and hurt the value of land
  • (1) affirmative waste: actually do something and it substantially reduces the value of the property (tiny changes: reduces value a little isn’t enough) (increase value is okay)
  • (2) permissive waste: not taking care of your property
  • (3) Ameliorative Waste: increase the market for the land
  • (4) Bilateral monopoly: You are stuck dealing with a particular party in regards to this property
49
Q

Present & Future Interests

A
50
Q

Fee Simple Determinable

A

automatic end: lose if don’t use it the way supposed to (automatically ends when the condition isn’t met)
-in terms of time/duration
“to A, so long as…”
…while used for…
…during…
-future interest: possibility of reverter: future interest in O: may be expressly retained or through operation of law

51
Q

Fee Simple Subject to a Condition Subsequent (FSSCS):

A

doesn’t end automatically: when A stops using for specific purpose, O can come in but if O doesn’t, A still has it (burden is on O to take some extra action to take back when condition isn’t met)

-in terms of event/condition
“to A, but if _____, O = right to reenter”
…on condition that______
…provided, however______

-future interest: right of entry: future interest in O: may be expressly retained or implied in the instrument

52
Q

Fee Simple Subject to Executory Limitation (FSSEL):

A

goes to a 3rd party if A doesn’t do what supposed to do
-future interest: executory interest: future interest of 3rd party

53
Q

Future Interest

A
  • Right to receive possession of property at a future time
  • You are not possessing the property not but you have rights to it in the future
    1. You can sue the present holder for things like waste
54
Q

Reversion

A
  • The interest remaining in the grantor when they transfer an estate of lesser amount than they had

  1. Normal format – to A for life then a condition that needs to be satisfied
    - Example – to A for life, then B if B passes the bar
    - If the last party has no heirs then it goes to the state if condition is satisfied, rather than back to original party
55
Q

Remainder

A

A Future interest created in a transferee that is capable of becoming possessory immediately upon the end of a prior estate – this definition comes after the table definitions

56
Q

Contingent Remainder

A
  • If there is a contingent remainder then there is also a reversion created
  • Unascertainable
  • i.e. to the heirs of B and B is still alive – heirs are not determined until the death of B
  • To B’s children when B has no children
  • An unsatisfied condition precedent
  • To B is B is 21, but B is only 15
  • If B passes the bar, but B fails the bar
57
Q

Vested Remainders

A
  1. Indefeasibly: strongest: certain of becoming possessory and cannot be divested
  2. Vested Remainder Subject to Total Divestment: subject to a condition: if it takes place, it deprives holder of the remainder
    “to A for life, then to B, BUT if B becomes a lawyer -> C” - not quite as strong: will lose if does something not supposed to
  3. Vested Remainder Subject to Partial Divestment (Open): gift: class of individuals whose interest are subject to partial divestment, if the class size increases
58
Q

Executory Interest

A
  • A future interest created in a transferee that must cut short or divest another interest to become possessory
  • Shifting - Cuts short interest in transferee
  • Springing - Cuts short interest in transferor
59
Q

Condition precedent

A
  • An event that must occur before the remainder can become possessory
  • i.e. if B reaches 21, then to B and his heirs
60
Q

Condition Subsequent

A
  • A completed gift to B and then you add on a later condition in a subsequent clause.
  • i.e. To B, but if B does not reach 21 then to C
    • Vested remainder subject to divestment – B gets the gift and then may lose it if they do not do the thing
61
Q

Future Interest Rules

A
  • If the first future interest after the life estate is a contingent remainder in fee simple then the second future interest is a contingent remainder in fee simple
    ex: Remainder to B if 21, to C if B is not 21
  • If the first future interest after the life estate is a vested remainder in fee simple then the second future interest is a divesting executory interest.
    ex: Remainder to b, but if B does not turn 21 then to C
62
Q

Trust & Trustees

A
  • The trustee is the legal owner
  • Trustee is held to fiduciary duties and must act in the best interest of the beneficiaries
  • Beneficiary is the equitable owner
63
Q

Rule Against Perpetuity

A

No interest is good unless
The purpose is to prevent landowners from controlling land for too long of a period of time
Step 1:

RAP only applies to Contingent remainders, executory interests, WRSTO
RAP does not Apply to; Vested remainders, present estates – life estate, FSD, FSSTEL, future interests in transferor
Step 2 – What happens for the interest to vest?
- What need to do for contingent interest to vest?
Step 3 – Are there any relevant lives?
- Must be alive when the instrument becomes effective
- Will be effective when testator dies; deed effective when takes effect (when it’s transferred)
Step 4 – Does any relevant life validate the interest?
Plug in relevant lives to see if interest must vest or forever fail to vest more than 21 years after end of his life

64
Q

Class Gifts

A

A gift to a group of people that is identified by a group label, like children, issue, descendants. If they are identified by name, then it is not a class gift.

  • “To my children” – class gift
  • “To my children; Molly and Tim” – Not a class gift
  • Natural closing of the class – when no more births are possible because the testator dies
  • Artificial closing of class – rule of convenience – when the property must be distributed
65
Q

Unborn Widow Rule

A

To A for life, then to A’s widow, then to A’s issue then living
Not good enough, the issue (children) may not be around at the time of the conveyance
Widow not allowed as a descriptor in common law

66
Q

The Symphony Space, Inc. v. Pergola Properties, Inc. (NY) (1996)

A

Purchase option: holder of option has choice to buy the land (subject of many perpetuities problems today)

RAP -How do options apply to RAP?

Contingent, equitable interest in land -> option holder

the option holder may or may not exercise it = contingency

***it only matters that you know 21 years from the time of conveyance: with corps, no relevant life

67
Q

States’ Reform Options for RAP

A

Cy pres (“cy prey”): if interest is invalidated by the rule, Ct changes the language to carry out the intent of the transferor: (transferor has an intent & can satisfy by changing the language)
Ex: “-> kids as they turn 25”
-intent of grantor is to give to those after maturity

“Wait and See”: wait and see what actually happens (also see Symphony notes above): wait and see if the contingency actually vests within the perpetuities period (instead of wiping the clause out)
Ex: if kid = 15y.o when O dies, just wait and see if the kid reaches 25 (if that’s the contingency) within the period and it vests

Uniform Statutory Rule Against Perpetuities (USRAP): 90 year period (don’t figure out relevant lives or 21 years) to figure out if the contingency vests (wait and see)

What to do after 90 years if it doesn’t vest?
Cy pres kicks in: ct reforms so that it carries out the transferor’s intent so either it vests or fails to vest at that point

  • *NJ: Dynasty Trust Approach**: a trust is beneficial to everyone’s interest because it’s more flexible
  • allows the property to be passed on, avoid RAP, avoid the tax issues to have property invested in the jurisdiction
68
Q

Concurrent Interests

A

More than one person has a right of possession at the same time

69
Q

Joint Tenancy

A

Requires 4 unities:

(1) time: acquire title at the same time
(2) title: acquire title by same deed/will
(3) interest: 50/50 interest for 2 tenants (more flexible now, 50/50 was regulated)
(4) possession: each has a right to possession of the whole

How to terminate?
Break 1 of the 4 unities

Right of survivorship (is key here): it automatically goes to the other joint tenant (in comparison to probate: having a will, etc.)

70
Q

Tenancy by the Entirety

A
  • 5 Unities are required
    1. Time – Two parties acquire the title at the same time
    2. Title – Acquire it in the same document
    3. Interest – they have an identical interest – i.e. 50% (this has been weakened today)
    4. Possession
    5. Marriage –
  • If one person transfers interest it does not break tenancy, need divorce, death of a spouse or an agreement of both spouses.
71
Q

Tenancy in Common

A

default position when tenancy is unclear

You do not need the unities
can transfer interest by:
-deed
-will (no survivorship rights: can transfer at death)
-intestacy (no will) (no survivorship rights: can transfer at death)

72
Q

Riddle v. Harmon (CA) (1980)

A

Unilaterally terminate your joint tenancy by conveying your property
You cannot hand over property to yourself, but then there was ways around this, transfer to a strawman etc.
CA said you can create a joint tenant by direct transfer
What sort of notice do you need to give?
The courts do not want to think about notice
Put in a desk drawer is not enough

73
Q

Mortgage

A

A conveyance of interest in real property as security for the performance of an obligation and is designed to protect the lender

  • Mortgagor – party that grants security interest to the bank – the borrower
    • Mortgagee – receive security interest in the property – lender
74
Q

Harms v. Sprague (IL)

A

Issues:

(1) Does a mortgage sever the joint tenancy? (title v. lien theories)
(2) Is the joint tenancy subject to the mortgage? (Does the mortgage survive the death of the borrower?)

  • *Title theory**: legal estate vests title to property in mortgagee
  • so under this theory, the bank (mortgagee) winds up with title and the joint tenancy is severed (severs the 4 unities required for JT)
  • *Lien theory:** just a second interest and the borrower is still the owner
  • joint tenancy isn’t severed because there’s no conveyance of title
  • redemption period is expired without a redemption

Court follows the lien theory

75
Q

Effect of Mortgage on Joint Tenancy

A

If you follow Title Theory – Joint tenancy is severed – the unities are no more

If you follow Lien Theory then it is not severed – the unities do not change

  • If you have the lien theory, does the mortgage survive?
  • Majority – say it still applies at death and the joint tenants left are on the hook
  • Minority – it does not survive death
76
Q

Partition

A

Ends the co-tenancy: distributes the property and provides a final accounting
-typical when 2 parties can’t figure out how to use the land together -> partition

77
Q

Delfino v. Vealencis (CT)

A

Partition by sale: sell (auction) and divide the proceeds accordingly (to shares of parties) - seen as an extreme exercise in power

Partition in kind: physical division of the property into separate pieces

2 factors to determine whether to do a Partition in kind vs Partition by sale

(1) the physical attributes of the land are such that a partition in kind is impracticable or inequitable;
(2) the interests of the owners would better be promoted by a partition by sale.

Here they divide it because they were rectangles

78
Q

Ark Land Co. v. Harper (WV) (2004)

A

Court decided not to do a partition by sale: emotional attachment sentimental losses (personhood)

79
Q

Johnson v. Hendrickson (SD) (1946)

A

Court decided that the partition by sale made sense because there were so many owners and if physically divided, would have to divide in so many pieces it would diminish the value and selling was the easier choice

80
Q

Spiller v. Mackereth (AL) (1976)

A

General rule: c_otenant in possession doesn’t need to pay rent to other cotenants_ (this is consistent with rights to be in possession)

2 exceptions:

  • K to pay rent
  • Ouster: When one cotenant requests possession and is denied by the other cotenant

Cannot use traditional adverse possession because you cannot eject the other

2 contexts for ouster:

  • liable for rent to other cotenant
  • adverse possession: claim of absolute ownership and denial of cotenancy
  • not “open and notorious” if just living on the land (have that right as cotenant: policy reason is to better utilize the land- utilitarianism) but must act as only owner (then it’s an ouster)
81
Q

Swartzbaugh v. Sampson (1936)

A

A joint tenant can sell interest in the property even if the other tenant disapproves or doesn’t know (just can’t if it’s tenancy by entirety)

What about leasing?

-yes, allowed to lease interest to 3rd party: nonexclusive is okay because you can lease rights to another and that person has the same rights as the cotenant (as long as you don’t deny entry to the other- ouster)

-but a lease that leads to exclusive possession isn’t okay
(doesn’t matter what amount is exclusive because each cotenant has a right to possess the whole)

Remedies when cotenants can’t agree:

  • *Partition**: divide for the duration of lease or in general
  • *Ouster**: she could actually enter or try to and once denied, she would have a case
  • *Accounting**: if 3rd party is paying rent to one cotenant: the other cotenant is entitled to their share (not rent if the other cotenant is actually possessing: only entitled to share of rent from 3rd parties)

*takeaway: if you don’t go in and try to stop it, it’s assumed that you support it.

82
Q

Easement

A

non-possessory right to use land in possession of another

83
Q

Affirmative Easement

A

gives the holder the right to do an act on the servient land (cross land, do something)

84
Q

Negative Easement

A

Prevents the servient owner from doing something on their own land

-Courts are careful to limit negative easements (it can potentially reach very broadly: so defined categories: exs: solar, protect someone’s view)

  • usually, have to be in writing: subject to the Statute of Frauds
  • there are exceptions when it can be implied
85
Q

Easement appurtenant

A

benefits the owner of the easement as the owner of the dominant land (runs with the land)
***if unsure, this is the default
Ex: right to cross neighbor’s land benefits you because you live there

86
Q

Easement in gross

A

personal to the holder and benefits the owner whether or not he/she owns other parcels
Ex: utility co. can cross land to get to neighbors

87
Q

Quasi easement

A

using one part for the benefit of another part

-start off with 1 tract of land but when divide it up to different tracts, one part is used to benefit the others

(quasi means made up: not really easements- legal fiction)

88
Q

Reservation of Easement

A

convey land to party but reserve an easement for self

Court looks to:

(1) intent for it to be used in the future
(2) apparent upon further investigation

English common law: higher threshold for reservation- it has to be more explicit because if you’re conveying land, it needs to be known you’re keeping it for yourself

U.S.: no distinction between reservation & grant

89
Q

Easement by necessity

A

titled severed
-at the time, Q: is this easement necessary?

Majority: strict necessity is required
-absolutely need to have access to the easement- no other way to reach

Minority: reasonable necessity is enough
-don’t need absolute necessity for access but access is much harder in other ways

Q: Why have easement by necessity?
-efficiency: look at both sides:
Servient tenant: (burdened…) a little
Dominant tenant: (benefitted…) a lot

90
Q

Easement by prescription

A

Similar to adverse possession (adverse possessor gets title to the land) but different in that here the possessor doesn’t get ownership but gets to use the land

Requirements (similar adverse possession)
(1) open and notorious use: use must be visible and apparent so that the diligent owner who is present on the land at the time would be able to discover it

(2) use is adverse and under claim of right:

  • objective test (some courts): don’t look at the state of mind
  • subjective test (other courts): one of 2 ways;
  • good faith belief: believe entitlement to land
  • hostility: know it’s not theirs

(3) use is continuous and uninterrupted for the statutory period: use as a typical party would and if stop use, even for a short time, then it’s not uninterrupted so the period starts over
(4) exclusive use: use that’s independent of uses by others (not sharing it with the general public but the owner still has the right to the land)

  • differs from adverse possession:
  • only user
  • completely exclusive
91
Q

Public prescriptive easements

A

not an easement by individuals but by the public at large

92
Q

Raleigh Ave. Beach Assn. v. Atlantis Beach Club (NJ) (2005)

A

Public trust doctrine: State owns the land for the people (origin in Roman law; and then English common law)

Neptune City: (quasi-public v. private (here) the municipality owned it so they had higher obligations in Neptune) expands public trust rights to recreational use

Matthews: est. framework for the application of the public trust doctrine to privately owned land: (factors to look at)

  • location of the dry sand area in relation to the foreshore
  • extent & availability of publicly-owned upland sand area
  • nature & extent of public demand
  • usage of upland sand by the owner

Right to exclude issue?
-Exclusivity is limited by the public trust doctrine

Holding highlights?

  • longstanding public access to/use of beach
  • public demand
  • lack of publicly-owned beaches
  • type of use by current owner as business enterprise

NJ: towns decide, not the state (2010: overturned 2008 Rules)

93
Q

Public Trust Doctrine

A

serves as a limitation on the right to exclude which is well recognized (esp. NJ)
-most attention is to beaches, but also to lakes, rivers, freshwater wetlands, historical areas, cemeteries, archeological sites

94
Q

Easements appurtenant

A

transferred when the property is transferred – either property dominant or servient property

  • Parties can agree otherwise
  • There must be notice of the easement
  • treated as being attached to the land
95
Q

Easements in gross

A

Are generally transferable but much harder to transfer: if there’s an unreasonable burden on the servient estate, then no

96
Q

Miller v. Lutheran Conference & Camp Assoc. (PA) (1938)

A

Takeaways:
1 - can get (bathing) rights by prescriptions
2- easement in gross: have ability to take advantage of the right even though you don’t live on the land adjacent
3- with easements in gross, need to ask about assignability and divisibility (in comparison to easements appurtenant: automatically assigned)

97
Q

One stock rule

A

You cannot divide an easement without all the parties deciding together to divide it.

  • Not the majority Approach
  • Majority Rule: Instead you can divide an easement in gross unless the parties intent is different
98
Q

Negative easement

A

right of a dominant owner to stop a servient owner from doing something on the servient land

From England: (4 types):

  • locking windows
  • interfering air flow -> land
  • removing building support
  • interfering with the flow of water in stream
U.S.: very few negative easements
 solar easements (some states)- can’t block natural flow of sunlight
conservation easements (NJ Conservation Foundation)- allow landowners to limit the use of land/prevent development (promising: allows owners to protect it after you die + tax benefits)
99
Q

Preseault v. U.S. (1996)

A

Rails-to-Trails Act Case

What interest does RR have?
-Fee Simple (if RR has, they have the right forever)
-v. Easement (if easement, and no longer needed, then now = taking & P is entitled to compensation)
Language was for fee simple but VT law said RRs only get as little as they need (easement)

Q: Is the easement broad enough in scope to allow for the trail?
Court: -looked at the purpose: trail is very different from a trail
- looked at the fact that the easement was abandoned (lose rights to easement when abandoned & = taking)

2 different ways P could win:

  • beyond scope of the easement
  • abandonment

How to prove abandonment?

(1) nonuse
(2) acts by owner of dominant tenement to show clear and unequivocal present intent to relinquish the easement or used for a purpose inconsistent with its future existence (makes it seem like not using it in the future)

100
Q

Termination of Easements

A

(1) release by dominant owner: one who has the ability to cross says they don’t need it anymore
(2) by expiration: “can cross for 5 years”
(3) necessity: if need for the easement is gone, terminates
(4) merger: when servient estate and dominant estate come to be owned by the same party, easement ends
(5) estoppel: statement by dominant owner that easement will end
(6) abandonment: non-use or clear intent shown to abandon
(7) condemnation/eminent domain
(8) prescription: similar to adverse possession

101
Q

Purpose of covenants and equitable servitudes:

A

to extend the burdens and benefits of land use agreements to the successors of the original parties

(historically) difference: in remedy
-breach a covenant? Damages (but also, the requirements are more strict)
-breach an equitable servitude? Injunction
TODAY, they’re merging

102
Q

Requirements for Burden to Run

A

(*****toughest to satisfy)

  • *(1) writing**
  • *(2) intent:** parties must intend for their successors to be bound by the covenant: look for the language
  • *(3) horizontal privity of the estate:** look at the relationship of the 2 parties

3 approaches in the U.S.:

(1) mutual interest approach: the 2 parties have a mutual interest in the same land
- exs: cotenants, holders in remainder of life estate, servient/dominant easements

  • *(2) (**majority) successive interest approach:** ask if the covenant is created in the transaction by which the covenanting party conveys an interest in the land
  • includes mutual interest so it’s broader than the 1st category
  • when there is a conveyance, the promise is in that conveyance: (A gives land to B, the promise is in that conveyance)
  • *(3) no horizontal privity requirement**
  • *(4) vertical privity:** relationship between the transferees and transferors

Q: Does the successor succeed to the entire estate in the land held by the original covenanting party?

-ex: if the successor gets a life estate when the original owner had fee simple: vertical privity isn’t satisfied

TODAY, most jurisdictions don’t require vertical privity for covenants

  • *(5) touch and concern**: asks whether the burden relates to the use of the land
  • *(6) notice to successors:** there must be notice to the successors of the covenant (record notice counts)
103
Q

Vertical Privity

A

relationship between the transferees and transferors

Q: Does the successor succeed to the entire estate in the land held by the original covenanting party?

-ex: if the successor gets a life estate when the original owner had fee simple: vertical privity isn’t satisfied

TODAY, most jurisdictions don’t require vertical privity for covenants

104
Q

Covenants & Servitudes

A
105
Q

Requirements for Covenant’s BENEFIT to Run

A

(1) writing
(2) intent

(3) touch and concern
(4) vertical privity

-no horizontal privity requirement: because it’s harder to satisfy and makes it more likely that the benefit will run without that requirement

106
Q

Tulk v. Moxhay (Eng.) (1848)

A

3 things were in their agreement:

  • maintain garden in proper repair (covenant: have to do something)
  • tenants living there have to pay rent
  • can’t cover the garden with any buildings (negative covenant: can’t do something)

P sues D for injunction because he was trying to build on the gardens

Court grants relief: D knew intention: fairness:
-price was lower because of restrictions but if could just let him remove them, that buyer could turn around and take the burdens off and sell for higher (inequitable)

107
Q

Requirements for Equitable Servitudes BURDEN to Run

A

(1) writing or implied from common plan: easier to satisfy than covenants because don’t have to have a writing (just uniform restrictions)
(2) intent
(3) touch & concern
(4) notice:
- actual notice
- record notice
- inquiry notice (have to inquire)

108
Q

Requirements for Equitable Servitudes Benefit to Run

A

(1) writing or implied from common plan
(2) intent
(3) touch & concern

Property Law (2 decks)

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