PROPERTY OUTLINEPROFESSOR HELMHOLZ

I. PERSONAL PROPERTY

A. Finders’ Rights

1. Requirements for Possession

a. Actual power over the thingb. A manifested intention to control the particular item

2. General Rules on Acquiring Possession by Finding Articles

a. RULE: An owner of property does not lose title by losing the property. Owner’s rights persist even thought the article has been lost or mislaid. However, a finder has rights superior to everyone but the true owner.

1. Armory v. Delamire (prior possessor wins): P. finds a jewel and takes it to D. jewler for appraisal. The jeweler refuses to give the jewel back to P. saying P. does not own it. Court held: P. is entitled to recover either the jewel or the full money value of the jewel and that the prior possessor has the superior right. NOTE: the P. was a chimney sweeper boy who found the jewel while working – does his employer have the right to the jewel? Read on.

b. Relativity of Title: The owner prevails over the finder, but the finder prevails over a subsequent possessor.

1. Clark v. Maloney: P. recovers logs, floating in a river and moored them with ropes. D. later found logs, seemingly abandoned. Court held that P.’s rights are not lost by losing the log.

c. Finder v. Owner of Premises: Knowledge of chattel is not required for possession. If the finder is a trespasser, the owner of the premises where the object is found prevails over the finder, even if the owner’s did not know of such chattel

1. Barker v. Bates: Logs wash up on P.’s property. D. steals them from P.’s land. Court held that P. had preferable right to possession over a trespasser.

2. Ratione Soli: “By reason of the soil.” The claim of the landowner extends to anything on the land.

3. South Staffordshire Water v. Sharman: P. operates a pool. D. is an employee of P. and in charge of cleaning out the pool. D. found 2 gold rings at bottom of pool. Court ruled that, where an owner of house or land invites an employee on the land for limited, specific purpose, the possession of that thing found is in the owner of the property. (Note, the employee in Armory was able to keep property – why – perhaps because the rings in Sharman were embedded and embedded property is the property of the owner)

4. Hannah v. Peel: P. finds brooch hidden on a window ledge inside D’s house. D. never lived in the house. D. took possession of brooch and sold it. Court ruled that P. finder could prevail. Lesson: If the owner of the house has not moved into the house (has not made it his “personal space”), the owner is not in constructive possession of the articles therein of which he is unware. Note also:

The brooch was found on a window ledge (i.e. lose on the property). The brooch was not part of the property (i.e. embedded).

a. Law of Bona Fide Purchases: The owner of property does not lose the right to property because the property is inadvertently sold.

5. Sharman and Hannah v. Peel distinguished: In Sharman, the finder loses. But in Hannah v. Peel, the finder wins. WHY? In Sharman, the owner had control over the loqus in quo, but not in Hannah v. Peel. Thus, the D./owner in Hannah v. Peel did not satisfy the #2 condition for the establishment of possession (a manifested intention to control a particular item).

d. The Lost – Mislaid Distinction

1. Lost Property: Property the owner accidentally and casually lost (e.g. a ring slips through a hole in a pocket). Lost property goes to the finder, rather than the owner of the premises.

a. Bridges v. Hawkesworth: P. is in a shop and finds a lost bag of money on the floor. P. gives to D. to give to rightful owner. Owner never shows up. Court rules that property is lost. Lesson: the finder of a lost article is entitled to it as against all persons except the real owner.

2. Mislaid Property: Property that is intentionally placed somewhere and then forgotten. Mislaid property goes to the owner of the premises.

a. McAvoy v. Medina: P. finds purse on the counter in a barber shop. The purse is mislaid property, because it was assumed that it was intentionally placed on the counter and forgotten. The court ruled that the purse goes to the owner of the property; the finder has no rights. Lesson: the finder of mislaid property has no rights; the property goes to the owner of the land.

3. Favorite v. Miller: D./treasure hunter thought that part of a 200 year old statue of King George was on P.’s property. W/o telling P., D., w/ use of a metal detector, found statue fragment. Court ruled that D. was in error and the fragment was P’s property because 1) the D. trespassed and 2) the property was embedded.

B. Bailments

1. Definition: A bailment is the transfer of the rightful possession of personal property to a person who is not its owner and for a limited purpose. The true owner is the bailor and the person in possession is the bailee. E.g. delivery of clothes to dry cleaner; delivery of film to the film processor.

2. Requirement for the Creation of a Bailment

a. possession of personal property by the bailorb. delivery to the baileec. acceptance of the bailee

1. actual physical control2. intent to possess

3. More on 2c(1) – Actual Physical Control

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a. Allen v. Hyatt Regency – Nashville Hotel – P drove car into an attended garage that automatically dispensed with a ticket (ticket had exculpatory clause written on it), and had only one way in and out. Car was stolen. Was bailment created, even though P. never handed over his keys? The court ruled that the facts of this case were not at variance with the legal requirements of “bailment for hire” as there was an expectation of protection on the operator of the garage. LESSON: A Bailment may be found to exist in attended lot situations, even though attendant has no physical control of the car.

b. McGlynn v. Parking Authority of City of Newark: Facts similar to Allen, but NJ Supreme Court applies new test (which Helmholz says is departure from bailment test) in which the court looks to decide who is better situated to safeguard cars/chattel, e.g. who is better able to protect. Helmholz wary of such tests – because with this approach, open garages would also be considered bailments; and then you don’t have traditional test anymore

4. More on 2c(2) – Intent to Possess

a. Peet v. Roth Hotel: P gives hotel cashier a ring so that cashier can give it to a jewler who is going to replace a stone. The cashier/D agrees to do so, not knowing that the ring is very valuable. Court rules that a bailment had been created. LESSON: if the value of chattel is not known to the bailee, the bailee is still liable for the full cost of the item.

5. Rights and Duties of Bailee:

a. Duties of Bailee to Exercise Care (Helmholz says: Traditional Law of Bailment, Influenced by Roman Law)

1. Bailment for the sole benefit of the bailee: If the bailment is for the sole benefit of the bailee (as when a person borrows a lawnmower), the bailee is required to use extraordinary care. The bailee is liable for even slight neglect that results in the goods being damaged or destroyed or lost.

2. Bailment for the mutual benefit of bailor and bailee: If the bailment benefits both the bailor and bailee (e.g. dry cleaning), the bailee must exercise ordinary care and is liable for ordinary negligence.

3. Bailment for the sole benefit of the bailor: A gratuitous bailee must use only slight care and is liable only for gross negligence.

b. Modern Trend re: Duty of Bailee: The above noted traditional rules re: duty of the bailee were rejected in Peet. The Peet court (and modern courts) hold that in all cases, the bailee will be held to an ordinary leel of care (e.g. simple negligence). Why? It is simply too hard to determine who benefits and to what degree A benefits over B.

5. Burden of Proof: Because the bailor may not know the facts concerning the loss of the bailed goods, modern courts placed the burden on the bailee to prove due care.

6. Duty to Redeliver: Regardless of the standard of care required of a bailee while the goods are in his custody, a bailee is held to strict liability when it comes to redelivery. If the bailee misdelivers the goods to the wrong person, his is stuck with liability even though he used reasonable care.

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a. Exception to this Harsh Rule: An involuntary bailee is liable only if the bailee was negligent in delivering the goods to the wrong person. The courts impose strict liability on the ordinary bailee because he is in breach of contract when he misdelivers. But an involuntary bailee has no contract and has a lesser liability.

b. Cowen v. Presspich: P/investment bank, sent a 17 y.o. to D’s office to

drop off a bond; P drops it through a letter slot in a door; D. picks it up, sees it is the wrong bond, opens the door and calls for P’s agent. Another person picks up the bond, and D, not knowing, hands the imposter the bond. The bond is never seen again. Lesson: As an involuntary bailiee (D. took no possession), D. is liable only if negligence is shown.

7. Contractual Modification of Liability: A contractual limitation on liability requires the consent of the bailor. Posting is not enough unless the bailee can show the bailor saw and accepted the sign. Putting a limited liability provision on a claim check will not work either unless the bailee can show that the bailor was, or should have been aware of it.

a. Carr v. Hoosier Photo Supplies: P, a lawyer, purchased film from a retailer and used this film on European vacation. Upon return, P. took 18 roles to Hoosier supply to be developed; only 14 were returned. The film from Kodak and the receipts from Hoosier were posted with a limited liability waiver – “ The film will be replaced if … damaged or lost by us or any subsidiary company even though by negligence or other fault. Except for such replacement, the sale, processing, or other handling of this film for any purpose is without other warranty.” The court ruled that this limitation was valid; P. was a lawyer and assented to the terms by his non acquiesance. NOTE: Helmholz says the court might uphold this exculpatory clause but overrule Allens (see above) because, in Allen, the bailee excluded liability. In Carr, bailee limited liability and agreed to pay for the value of the lost property (e.g. the lost roles of film).

C. GIFTS

1. Gifts Inter-Vivos: An inter-vivos gift is a gift made during the donor’s life when the donor is not under any threat of impending death. An inter vivos gift, once made is irrevocable. The donor cannot get the object back. To make an inter-vivos gift, there has to be (1) intent to transfer title (2) delivery (either actual or constructive) and (3) acceptance of that delivery (things of value will automatically be assumed to be accepted).

a. Irons v. Smallpiece: P’s father made alleged gift of 2 colts to P. 12 months prior to death. But the colts remained in the possession of the father, and P. never provided hay for the colts, until 3 days prior to the father’s death. The court ruled that in order to transfer property, there must either be a) a deed or instrument of gift of b) an actual delivery of the thing to the donee. INTENTION W/O DELIVERY DOES NOT EQUAL A GIFT.

b. Gruen v. Gruen: P. sought a declaration from the court that he is the rightful owner of a painting given to him by his now deceased father. P. conceded that he never had possession of the painting but asserted that his father made a valid gift of title, reserving a life estate for himself. Court ruled that if the donor gave

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donee only the title to the gift w/ no right to possession until his death, the delivery requirement is satisfied.

c. Helmholz Nuggets on Inter-Vivos Gifts

1. What is necessary for valid delivery is for the donor to part with control (to no longer retain control) – Control has to be surrendered. It could be surrendered to a trustee. RE: Gruen. Guren gave to his son remainder interest, but retained a life estate. At this time, the son owned the painting and the father was simply a life tenant.

2. In order to a gift to be valid, transfer of possession has to happen now – enjoyment of that gift can be later (e.g. Gruen)

3. Where delivery is possible, courts are likely to require actual physical delivery. What may be delivery of a Steinway piano is different then the delivery of a hershey bar.

2. Gifts Causa Mortis

a. Definition: A Gift Causa Mortis is an exception to the statute of wills which requires a witness if you wan’t to leave a testamentary gift. Why have gifts causa mortis? Helmholz says that the things that cover a gift causa mortis is limited – a gift has to be personal property. It is not likely that gifts causa mortis will be made of stock certificates. We have gifts causa mortis because Roman law had them. Note, gifts causa mortis are always subject to revocation if the donor recovers.

b. Conditions:

1. There Must Be Intent To Make A Gift2. A Gift Must Be Personal Property3. A Gift Must Be Made While The Donor Is Under The Apprehension of

Imminent Death4. Possession of the Property Given Must Be Delivered at The Time of

The Gift to the Donee

c. Woo v. Smart: Two days before his death, decedent handed to P. 3 personal checks worth 100+K. The administrator of decedent’s estate filed a bill of complaint for declaratory judgment against donee, alleging the 3 checks were not effective gifts because they were not presented for payment and paid prior to decedent’s death. LESSON: The court ruled that because a check does not operate as an assignment of funds, mere delivery of a check does not place the gift beyond the donor’s power of revocation and the check simply becomes an unenforceable promise to make a gift.

d. Difference Between Gruen (gifts) & Woo (gifts causa mortis): A gift casua mortis requires more – it requires actual possession. The donee in Gruen had title, but not possession.

D. Unauthorized Possession and Bona Fide Purchasers:

1. Possession by a Trespasser

a. Anderson v. Gouldberg: A trespassed on the land of a stranger and cut 93 pine logs without the consent of the owner. A hauled these logs, marked w/ his initials to a mill, where B converted them to his own use. A sued for their

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market value. Lesson: A possessor, even a wrongful possessor or thief, has the right to possession as against all but the true owner and is entitled to recover either the thing in specie or its value from a converter. (Note, this is an extension of Armory).

2. Right of Possession Against a Third Party

a. Jefferies v. the Great Western Railway (note case): P. had possession of 2 trucks, which were not his property and seized by D. P sought to recover, but D. claimed that P. had no title. The court ruled that the evidence that the property was in a 3rd person can not be raised as a defense by one who himself has not title. Lesson: In actions to recover POSSESSION, the jus tertii defense, a defense that neither the plaintiff nor the defendant, but a third party is the true owner, and only the true owner can bring the lawsuit, is not allowed.

b. Russell v. Hill: P. who purchased timber from a person who did not have title to the land, did not have an action in trover against a defendant who later who converted the timber without right. WHY? It would be wrong to allow the P. to recover the value of the property for the real owner may forthwith bring trover against the defendant, and force him to pay the value a second time, and the fact that he paid it in a former suit would be no defense.

3. Right of Possession Against Bona Fide Purchasers

a. Zendman v. Harry Winston: O woned a diamond ring which needed cleaning. O left the ring with B, a retail jeweler, to be cleaned. B. cleaned the ring, put it in a case in the fronto fo the store and subsequently sold it to P, an unsuspecting customer who paid B the full value of the ring. B refused to pay O the value of the ring. O the sued P to recover the ring.

1. Lesson of Zendman: While as a general rule, a person cannot convey a better title than he or she has to a third person, under certain circumstances it would be inequitable to hold an innocent purchaser for value liable to another for goods purchased from a wrongdoer when the purchaser had not reason to suspect any wrongdoing and paid full value for the goods. This is particularly true in the case of commercial transactions where the purchaser is dealing with a wrongdoer who deals regularly in the goods that are purchased. If an owner entrusts goods to a person who from all outward appearances would appear to be authorized to sell the goods to others, it is inequitable to permit the owner to recover the goods from the bona fide purchaser. It is inequitable because it is the act of entrusting (an act initiated by the bailor and which the bailor could have avoided) that created the situation which permits the wrong to occur. This position is bolstered by the fact that there is little or nothing the purchaser can generally do to protect him or her self since commercial transactions in goods rely on the fact of possession as the best evidence of title. This rule is expressed as a rule of estoppel.

2. Rule of Estoppel: An owner is estopped from claiming a superior title as against the bona fide purchaser for value because the owner’s acts were largely responsible for the loss and the innocent purchaser was not in a position to protect him or her self.

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3. UCC 2-403: The theme underlying the common law rule of estoppel is also reflected in Section 2-403 of the UCC providing that “any entrusting of possession of goods to a MERCHANT who deals in goods of that kind gives him power to transfer all rights of the entruster to a buyer in the ORDINARY COURSE OF BUSINESS.” This buyer is defined as a “person who in GOOD FAITH and without knowledge that the sale to him is in violation of the ownership rights…of a third party in the goods buys in ordinary course from a person in the business of selling goods of that kind.”

b. Porter v. Wertz: P. [Porter] entrusts painting to Von Maker [who went by the name Wertz] for examination. Von Maker is an art dealer. Von Maker gives the painting to Peter Wertz [the real Wertz], a deli owner. Wertz represents that he is the owner, when selling painting to Feigen, a buyer and seller of art. P sought to get painting or value thereof from defendant Feigen. P. won. Court held that, neither statutory nor equitable estoppel applied to defendants. Under UCC, Feigen/buyer acted in bad faith for not checking the status of the painting. And furthermore, under the UCC, Wertz was not a merchant. And also, equitable estoppel did not bar recovery in this case either. First, Porter, the owner, gave the painting to Von Maker – but it was not consigned for business purposes, but rather for display in Von Maker’s home. Also, Feigen was not a purchaser in good faith – He made no inquiry. (Note, an equitable estoppel defense might apply if Porter had clothed Wertz with ownership of or authority to sell the painting and Feigen had relied on Wertz’s apparent ownership – this indicia of ownership was there in Zendman, but not in this case).

E. Adverse and Other Possessors of Personal Property

1. Definition: Every jurisdiction has a statute limiting the amount of time after which a cause of action for the recovery of possession of property is barred. Such statutes are read like a Statute of Limitations. TO these statutes, courts have often added a judicial gloss, requireing that the possessor of the property have been in actual, open, continuous, exclusive, and hostile possession for the required amount of time.

2. Chapin v. Freeland: P buys counters from a vendor who took them from the defendant. Although the P did not possess the counter for 6 years (required time for s.o.l.), the statutory period ran before the P acquired the counters. Lesson: If the purchaser bought the chattel from one protected by the statute of limitations, he stands in as good a position as his vendor.

3. Solomon Guggenheim Foundation v. Lubell: D bought a painting from a gallery in 1967. In 1987, the Guggenheim museum demanded its return. The painting had been stolen in the late 1960’s The D’s had no reason to believe the painting was stolen. Among other defenses, (good faith, laches, and the museum’s culpable conduct), the D. raised an adverse possession defense, claiming that the s.o.l. had run on the P’s right to possession. The court dismissed the s.o.l. defense because the rule that it adopts states the the s.o.l. begins when the original owner demands the painting back, and the purchaser refueses. This rule is called the demand and refusal rule.

a. The Laches Issue: Laches, one of the defenses asserted by Ds in this case, is an excessive delay coupled with prejudice. What is an example of prejudice: since the painting was 17k in ’67 and 200k in ’87 – the lost opportunity to invest

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17k is an example of prejudice. What is an ordinary Laches situation: if the gallery where the Ds had purchased the painting had gone out of business, or if the s.o.l. had barred the Ds from suing the gallery, the Ds would have no recourse if they were forced to return the painting to the museum.

b. Other Stolen Art Options Besides the Demand and Refusal/NY Rule (when s.o.l. starts to run at the date when the true owner demands its return and is refused):

(1) The Discovery Rule: When the Whereabouts were or should have been discovered, then s.o.l. begins to run.

(2) The Discovery/O’Keefe/NJ Rule: The cause of action accrues at the time of theft, unless the owner can show that she used due dilligence and failed to locate the painting. If the owner can show due dilligence, so.l. runs when the owner locates the painting.

(3) Date-Of-Theft Rule/Traditional Rule: No jurisdiction applies this rule mechanically – because there is always a delay because of fraudulent concealment.

(4) Which is the Best Solution?: Helmholz says it is better to have a clear rule so long as we know what is and can stick to it.

F. Accession

1. Accession: when the goods of two different owners are incorporated together, the title of the resulting product goes to the owner of the principal goods (e.g. the owner of a parchmant acquired title to the writings on the parchment and the owner of a garmant acquired title to embroidery of the garment). Accession is a doctrine that is meant to vest in a single person the ownership of products that are not, as a practical matter, severable into their component parts or shares

2. Specification: application of labor to a thing or substance to create a new product

3. Confusion: the combination of similar substances or things into a uniform mass such that the identities of the original substances are lost (e.g. mixing grain of 2 separate owners) because the mass is practically infinitely divisible, there is no need to place title to the mass in a single person – the owners of the original substance will own the mass in common in proportion to their respective shares.

4. Severability: accession does not apply when the attached articles can be separated and removed from the principal thing w/o damage to the later.

5. Practical Severability: severability that does not result in substantial economic loss, as with the unraveling of embroidery from a garment – the focus is still on the aggregate value of the parts rather than the functional value of the whole.

6. Bank of American v. J&S Auto Repairs: P./Bank had a lien on X’s van. In 8/78, X towed the van to D for repairs to the engine, transmission and to other parts. X disappeared (he had asked for an estimate and not asked that D make repairs). D. tried unsuccessfully to locate X and in 2/79, after seeking help from title service, D applied for title, and replaced parts – but the later found out that P. had title. P commenced action for replevin and D. delivered van to P. Held: Since the parts can be removed, they are not accessions. Thus, the doctrine of title by accession does not apply to the equipment of a car which the buyer and seller do not intend to be merged into its structure.

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a. Questions:

(1) What if X was the Defendant: He would not be allowed to recover because every time a borrower were to make an improvement in a car, it would reduce the security interest in the car. Note, banks usually make you agree that if you add tires, etc, it accrues to the banks benefit – but a 3rd party is not bound to the agreement.

(2) What if D. had not looked for real owner: If you do nothing at all, it is hard to say that you have an honest belief that you have title.

(3) Suppose bank, after reclaiming car from P, had sold to a bona fide purchaser: No one can give anything they don’t have. The bank had no title to the parts, so P. can recover parts (or restitution) from bona fide purchaser.

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II. THE LAW OF NEIGHBORS

A. Adverse Possession

1. The Statutory Basis: The doctrine of adverse possession is based on statutes of limitation for recovery of real property. Statutes of limitation operate to bar one’s right to recover real property held adversely by another for a specified period of time. These statutes also vest the adverse possessor with as perfect title as if there had been a conveyance by deed. However, this title is not a matter of public record until a court determines that title has been acquired by adverse possession and the court’s judgment is entered on the public records. Common statutes of limitation to recover the possession of real property are 5,10,15 or20 years. Note the RELATION BACK DOCTRINE: once the statute of limitations has run, the adverse possessor’s title is treated as though it had existed from the moment his possession began. Note also, if you pay takes, it helps establish a claim of adverse possession – but does not absolutely establish title by adverse possession.

a. When The Statue of Limitation s Begins to Run: The statutory period on adverse possession begins to run when a cause of action accrues against the adverse possessor. In a simple situation, the cause accrues and the statute begins to run when a possessor without right enters into clearly visible possession of another’s land claiming adversely.

b. Tacking: The period of adverse possession can be tacked to the period of adverse possession of another possessor if the possessors are in privity with each other.

c. Effect of Disabilities: An adverse possessor cannot claim the benefit of the running of the statute of limitation until the statute of limitation has run against the owner of the property who had a cause of action of possession. All state statutes toll the running of the statute if the person entitled to bring the cause of action at the time it accrues is under a disability.

(1) Example: O, age 5, owned B’acre in 1980, when A took possession adversely. The statute of limitation was 20 years with an added provision that, if the person entitled to bring the cause of action for possession was under a disability at the time the cause of action for possession accrued, such person would have 10 years after the removal of the disability in which to bring the action. How long must A continue in adverse possession against O to acquire a title by adverse possession. ANSWER: A acquires title in the year 2003 if the age of majority is 18. Why? O was under a disability at the time of the accrual of the cause of action. O’s disability ceases when O reaches 18. Assuming O reaches 18 in 1993, O must bring the action for possession within the next ten years. If O fails to bring the action before 2003, A will acquire a title by adverse possession. If O had not been under a disability in 1980 when O’s cause of action accrued, A could have acquired a title by adverse possession in the year 2000.

2. The Elements of Adverse Possession

a. Actual: you have to be there, to establish physical possession – you have to be there in a way to demonstrate that you own it – e.g. if you go to picnic somewhere where the public goes to picnic, then no.

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(1) Anderson v. Cold Spring Tungsten: Actual occupancy means the ordinary use to which the land is capable and such as an owner would make of it. If it’s a summer cabin that you are adversely possessing, you don’t have to possess continuously throughout the year.

b. Open: visible and notorious (meaning, not secret or clandestine, but occupying as an owner would occupy for all the world to see if she cared to look.

c. Exclusive: meaning sole physical occupancy or occupancy by another with the permission of the person claiming a title by adverse possession.

d. Continuous: meaning without abatement, abandonment or suspension in the occupancy by the claimant, and also without interruption by either physical eviction or action in court. E.G. an unbroken continuity of possession for the statutory period.

e. Hostile: meaning that the possession is held against the whole world including the true owner; that the possessor claims to be the owner whether or not there is any justification for her claim, or whether or not there is “color of title” – which is a paper or instrument that does not qualify as an effective legal conveyance but that the claimant may believe is effective.

(1) Anderson v. Cold Spring Tungsten: D. purchased cabin on P’s land and has used cabin as a summer home. D had also paid takes on the property. D. seeks to adversely possess. Trial court claims entry was not hostile, because there was no showing of force. Lesson: A showing of force or actual dispute is not necessary to constitute hostile entry. Hostility arises from the intention of the adverse possessor to claim exclusive ownership of the property occupied. No specific intent directed toward the property owner is required.

(2) Dillaha v. Temple: P. brought claim to quiet title to parcel of land which he claimed to have held in adverse possession and which was controlled exclusively by his family. BUT, P had acknowledged to his family and to the D, the D’s interest in the land in dispute. HELD FOR D – the testimony evidenced a lack of hostile intent. Lesson: Possession will not ordinarily be presumed to be adverse – but rather subservient to the true owner. Thus, there is every presumption that such possession is in subordination to the legal title.

3. The Policy and Future of Adverse Possession

a. Meyer v. Law: P. owned land contiguous to the property of D. Relying on an incorrect survey, D’s built and maintained a fence for 25 years, enclosing a portion of P’s land. D’s believed this property was part of their own, although they had a deed of record reflecting only their true property and they paid taxes only on their property.

(1) Relevant Statutes in Meyer: In Florida, there was only 2 ways to acquire land by adverse possession.

(a) Without Color of Title: a claimant must show a) seven years of open, continuous, actual and hostile possession b) pay taxes and c)enclose or cultivate.

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(b) With Color of Title: claimant must a) show written instrument of conveyance and b) continued occupation and possession

(2) Court Held: D. failed to meet the statute. Note, the dissent states that the majority is trying to abolish adverse possession by making more demands of adverse possessors, specifically, that they pay taxes (which goes to show hostility) and have a written instrument. But Helmholz says in the vast majority of adverse possession cases, taxation does not come up at all, because most a-p disputes are border disputes. So most people pay taxes on what the government sends them w/out regard to what they are paying.

b. Constructive Adverse Possession: when one has deed of the whole, possession of part of it will constitute the whole. It applies only when the adverse possessor enters under color of title. For constructive adverse possession, there must be an actual possession by the claimant of at least a part of the land.

B. Rights of Lateral and Subjacent Support

1. Lateral Rights: Lateral support is the support that the land receives from the adjacent strata. A landowner is strictly liable if she changes her land use so as to withdraw lateral support from her neighbor and cause her neighbor’s land to slip or fall in. It is no defense that the excavator acted with the utmost care and not negligently. One who by excavation or otherwise withdraws lateral support from his neighbor’s land is liable for the injury done to such land in its natural condition, regardless of negligence. The measure of duty is simply that the lateral landowner has a duty to support the land in its natural state (i.e. land w/ nothing on it).

2. Subjacent Rights: is support that the land receives from underlying strata. Same measure of duty. The right to subjacent support means support from underneath the surface of the land as distinguished from the sides, and the rights involved are substantially the same as those involved in lateral support.

3. How do you decide what “natural state” is?: If added weight of building is what caused collapse, then no liability because land was not in its natural state. BUT you need experts to prove this, so these sorts of cases usually result in swearing matches. NOTE also, there are few cases on the subject – because of the complexities, parties are willing to settle disputes. SO the law/results on this subject is unpredictable.

4. Traditional Rule: is that the removal of either lateral or subjacent support results in absolute or strict liability in the excavator, miner or other defendant. But note, that liability will only apply if neighboring landowner did not support land in its natural state. But Helmholz says that, while we still have this rule, the rule is mitigated by consequential damages.

a. Also note if one excavates on his land causing neighbor’s land to collapse, generally no liability. But there will be liability – even when there is no interference – if work of excavation is done negligently e.g. if the excavation was done unnecessarily or if you gave insufficient notice or if there was a change in the procedures of the excavation or if you used unsuitable tools

5. Special Circumstances in Traditional Law:

a. Issues Can Be Resolved by Express Agreement: The law protects Helmholz from digging on Blackacre, after he conveyed the Helmholz tower to Burns. It

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doesn’t make sense that we should allow a deal for Helmholz to sell his tower, knowing the next day that he will dig on adjacent land and potentially cause the tower to fall. (Note this is contrary to the traditional rule, where adjacent owner would only be obligated to support land in its natural state).

Helmholz BlackacreTower_______________________________________

Tower Conveyed from Helmhoz owns thisHelmholz to Burns

b. Prescription: When someone owns Helmholz Tower for a long enough time that it becomes customary so that adjacent landowner can’t dig.

6. Illustrative Cases

a. Noone v. Price: P. bought house in 1960 and 4 years later noticed their porch was sinking. D lived below P. On D’s property, a retaining wall had been build before the house was built on P’s property. The wall had fallen into disrepair.

(1) Rule: AN ADJACANT LANDOWNER HAS AN OBLIGATION ONLY TO SUPPORT HIS NEIGHBOR’S PROPERTY IN ITS RAW OR NATURAL CONDITION. IF THE SUPPORT FOR THE LAND IN ITS RAW, NATURAL CONDITION IS INSUFFICIENT AND THE LAND SLIPS, THE ADJACENT LANDOWNER IS LIABLE FOR BOTH THE DAMAGE TO THE LAND AND THE DAMAGE TO ANY BUILDINGS THAT MIGHT BE ON THE LAND.

(2) Held: If P. can recover, they must do so by proving that the disrepair of the retaining wall would have led to the subsistence of their land in its natural condition.

b. Island Creek Coal v. Rodgers: P. sued to recover damages to their home from subsidence. P’s home is located above D’s mine, which has been abandoned since 1971 The mine began operations in 1905. The P. retained employment relating to the mining industry and was aware, when he built his house in 1966, that the house was situated over underground mines. Is the mine operator liable for damages to structures on the surface built after the underground operations had been abandoned? Held: an underground mine operator is liable for damages to support the surface and leave land in “its natural state” Natural state is the condition of the surface, including reasonable and forseeable imporvements theron, at the time the miners last extracted.

C. Air and Light

1. Airspace: Normally, the owner of the land’s surface also owns the space above and beneath it. In fact, a deed that describes only the surface is deemed to convey the subsurface and airspace as well even though the deed does not mention them. However, title to the subsurface and to the airspace can be severed from the title to the surface and can be conveyed to different owners. For example, a coal mining company might buy jus the subsurface estate under a parcel of land and an owner can convey airspace for a billboard, skyway or even an entire building.

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a. Murphy v. Bolger: D’s roof projects 16 feet over P’s land. Was this an ouster of P’s possession of the land? YES. LESSON: land includes not only the face of the earth, but everything under it or over it – so it is not essential that the intruding object should actually rest upon the P’s soil to entitle him to the action of ejectment.

(1) Hypos: What about a hot air balloon flying above the land? What about high-tension wires? RULE: Anything that might disturb the ordinary use of the land can enable an action for trespass. Thus, an overhang that prevents you from building yourself entitles you as P. to action of ejectment. So the hot air balloon is not a trespass, but the high-tension wire is.

b. United States v. Causby: P’s own land 2200 feet from U.S. airport runway and claim that noise is problem. HELD: While airspace is a public highway, the landowner must have exlusive control of the immediate reaches of the enveloping atmospherNote, the government has defined navigable airspace. Murphy is not bad law – but that doctrine does not apply to this case. Lesson: Damage caused by low flying aircraft could constitute a taking.

(1) Query: What is the difference between a highway and Causby: A house next to a highway is still inhabitable

c. Wing Ming Properties v. Mott Operating Corp.:

(1) Definitions: Airspace: is the area physically located over the land’s surface. It can be transferred to someone other than the surface owner but it cannot be moved; Air Rights: a statutorily created transferable development right arising from common ownership of adjoining parcels of land.

(2) Facts: P. owns a plot of land contiguous to the land of the D. P. requested a declaration that its airspace had been vertically invaded by air conditioning units constructed by the Bank of Central Asia, a subleasee to the land of D.

(3) Background Facts: P’s predecessor wanted to build a bldg. w/ the height exceeding the maximum height permitted under the city zoning regulations. In order to do this, P’s predecessor needed to have the adjoining property convey its air development rights. P’s predecessor obtained assignment of D’s leassees lease which included rights in both the land and the air. The contract was titled the conveyance of air rights. Upon completion of the construction of the 12 story building, P’s predecessor reassigned to D’s leasee her lease. The D then leased to BCA, which constructed the ac units. P alleges BCA’s construction is a trespass. P. claims that a conveyance of air rights encompasses a transfer of both development rights encapsulated in the exchanged volume of airspace and the right to its exclusive physical occupation and control.

(4) ISSUE: What are the rights encompassed in the term “air rights” – used in the conveyance of Air Rights Document?

(5) Held: The custom is that “air rights” clearly manifest the acquisition of air development rights, and not rights to exclusively occupy and control airspace. Thus, the rights conveyed to P. were air development rights and that as a matter of law, no trespass on these rights exist. NOTE, had Wing Ming really owned air rights, they could have blocked the building of the a/c units.

2. Rights in Air and Light

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a. ONE MAY NOT ERECT A STRUCTURE FOR THE SOLE PURPOSE OF ANNOYING HIS NEIGHBOR: In Sundowner, Inc. v. King, D. built a fence 85 feet in length right next to P’s hotel. P. sought action seeking damages and injunctive relief. Held: No property owner has the right to erect and maintain an otherwise useless structure for the sole purpose of injuring his neighbor. Note also, what does the law mean by no purpose? If it has a purpose it still mgiht be illegal if the primary purpose is malice.

b. SOME AMERICAN COURTS REJECT ANCIENT LIGHTS: Ancient lights means that if you had access to the light before, you still have it. American courts reject this doctrine.

(1) Fountainbleau v. 4525: P (4525) sought to enjoing D. brom

proceeding with the addition of 10 stories on its hotel alleging that 1) the addition would interfere w/ sun and light and would render its beach area unfit and 2) that the D. built because of malice and that 3) P’s inherited an easement of light and air enjoyed by P’s predecessors for more than 20 years. HELD: Where a structure serves a useful and beneficial purpose, it does not give rise to a cause of action, either for damages or for an injunction under the theory/maxim that no one has the right to use his property for injury to another. Why? Even if the injury to another is caused by cutting off the light and air, the maxim should not be applied so as to confer upon an adjaccent property owner rights incidental to his ownership of land which the law does not sanction.

b. BUT NUSIANCE LAW MIGHT OVERCOME THE NO RECOGNITION OF ANCIENT LIGHTS RULE:

(1) Prah v. Maretti: P./owner of a residence constructed a solar heating system which uses roof panels to supply energy for heat and hot water. P. alleges that D’s house, under construction, would effect P’s solar heat system and cause damage. P. alleges that he is entitle to “unrestricted use of the sun and its solar power.” Does P. have a right to unobstructed path for sunlight? Under the old common law rule, a landowner’s obstruction of another’s access to sunlight was not actionable. But court held that in this case, P. has cause of action for nuisance. Court ruled that the law of private nuisance is better suited to resolve landowners’ dispute about property development in the 1980’s than is a rigid rule which does not recognize a landowner’s interest in access to sunlight.

D. Nuisance

1. Definition: protects the property owner’s right to use and enjoyment of the property – which can be infringed even w/o a physical intrusion. A private nuisance consists of 1) the unreasonable use of D’s land and 2) substantial harm to plaintiff. Note, what does unreasonable use of D’s land mean? It means that if the conduct of the action does not fit the nature of the land, then the land was unreasonably used. NOTE ALSO, the difference between nuisance and trespass is that trespass is a physical invasion with gives P. an absolute right and nuisance is not an absolute right – P has to show damages and nuisance cases require a sort of balancing of interests. This balancing test stands in line with a great deal of law that we see today.

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a. What does unreasonable use of D’s land mean?

(1) Does the conduct fit the nature of the land – if not, then nuisance(2) If the use is illegal – if illegal, the nuisance(3) Utility of Use: Is there a good purpose for the D to be doing what he’s doing—

or an idiosyncratic use – if idiosyncratic, then nuisance(4) Is there an alternative – if yes, then nuisance(5) Can it be cone in a less harmful way – if yes, then nuisance

b. What does substantial harm to the plaintiff mean?

(1) Mere depreciation in the value of the property will not be enough to prove substantial harm

(2) The standard for substantial harm is conditional upon the type of use which the land in question is commonly used

(3) If the P. “came to the nuisance” – this can be used to deny the substantial prong test.

2. Illustrative Cases

a. Bove v. Donner-Hanna Coke Corp.: P. brings a private nuisance claim against D/factory across the street. While P. moved in before the factory was operating, 8 other factories were w/in a one mile radius of P’s house. P. alleged that dirt and soot are accumulating in her house. HELD FOR D. Since P. chose to live in an area with factories, and D’s conduct was lawful, then no nuisance. Note, the mill in question was up-to-date. If not, there is an easier case for liability. Note also, the legislature must have approved the factory to be located where it was. This is strong evidence for D. – but it alone is not enough to immunize defendant. Theme in this case: 1) it is difficult ot pin injury on any one 2 2) P. came to the nuisance 3) the legislature approved zoning for the factories.

b. Boomer v. Atlantic Cement Co.: P. brought action for injunction and damages against neighboring landowners alleging injury to property from dirt, smoke and vibration coming from D’s cement plant. The trial court found a nuisance, an injunction was denied, but temporary damages were allowed, NY Sup. Court reversed proposing instead to grant the injunction unless the D. paid permanent damages to the P. which would compensate them for the total economic loss (present and future) caused by D’s operation. HELD: to grant the injunction unless defendant pays plaintiffs permanent damages as may be fixed by the court seems to do justice between contending parties – because the total damage to Ps properties is relatively small in comparison with the value of D’s operation and with the consequencesof the injunction which P. seeks. Lesson: in this case, the court constructed a flexible remedy to fix facts of the particular case.

E. Water Rights

1. Diffuse Surface Water

a. Westland Skating v. Gus Machado Buick: P. operated skating rink above D’s auto dealership. Although water flowed naturally from P’s land to D’s land, the slope on P’s roof caused excessive amounts of water to flood into D’s dealership during a heavy storm. D. built a wall to act like a dam and during the next heavy storm, water flowed to the wall, but was trapped on P’s land flooding P’s rink. Can P. recover?

(1) The Rules: Originally the common enemy rule applied: landowners had an unlimited privilege to deal with the surface water on their land

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as they pleased w/o regard to harm caused to others. But Court applies the REASONABLE USE RULE: A POSSESSOR OF LAND IS NOT UNQUALIFIEDLY ENTITLED TO DEAL WITH SURFACE WATERS AS HE PLEASES, NOR IS HE ABSOLUTELY PROHIBITED FROM INCREASING OR INTERFERIN GIWHT THE NATURAL FLOW OF SURFACE WATERS TO THE DETRIMENT OF OTHERS. EACH POSSESSOR IS LEGALLY PRIVILEGED TO MAKE REASONABLE USE OF HIS LAND EVEN THOUGH THE FLOW OF SURFACE WATER IS ALTERED AND THEREBY CAUSES HARM TO OTHERS. HE INCURS LIABILITY ONLY WHEN INTERFERENCE WITH THE FLOW OF SURFACE WATER IS UNRASONABLE.

(2) The Court Held: The principle that an upper landowner enjoys an easement across the lower tract for all naturally occurring surface water continues to apply to land in its natural state. However, when any party improves his land, thereby causing surface waters to damage his neighbors property, the reasonable use rule shall be applied in order to settle the controversy.

2. Groundwater: Groundwater is not defined by boundaries

a. Macartor v. The Graylyn Crest III Swim Club: P. have for their water supply, a 4 ft. deep well – 200 feet away, D. swimming club has a well of approx 200 feet deep, which, when for purposes of filling the pool, results in the plaintiffs inability to use the well for at least 3 weeks. Experts agree that the wells draw from a common pool of water. P seeks to enjoin D. the swimming club from use of the pool.

(1) The Rule= Reasonable User Rule: permits the court to consider and evaluate the various factors on both sides and arrive at an “accomodation” of the conflicting rights. It also permits the court to consider the intentions of the offending party and his actions subsequent to the discovery of the consequences of his use of the water.

(2) Held: D’s initial use of its well was made w/o awareness of its consequences on P’s well. However, after it became aware of such effect, D’s use at least during the period when it pumped to fill the pool was not unqualifiedly reasonable.

3. Riparian and Littoral Rights: Riparian is the banks of a river; littoral is the lake or the ocean.

a. Harris v. Brooks: In March, P. leased land along a lake for the purpose of renting boats. In May, the D’s, leasees of an adjacent piece of land, began pumping water from the lake to irrigate a rice crop. P alleged that appellees reduced the water level of the lake to make the lake unsuitable for recreation. P seeks to enjoin appellees from pumping. Court adopts reasonable use theory: which recognizes that there is no sound reason for maintaining our lakes and streams at a normal level when the water can be beneficially used w/o causing unreasonable damage to other riparian owners. HELD: court enjoins D. from pumping water out of the lake when the water reaches its normal level – because below this, P’s would be unreasonable interfered with.

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(1) If riparian rights depend on beneficial use, what is beneficial use: the range of uses that have been held useful is wide: fishing, mining, power generation. Although there are limits, the limits, in terms of beneficial use, is wide.

(2) Natural Flow Doctrine: The natural flow doctrine has been largely replace by the reasonable use theory. Under natural flow, an adjacent landowner has the right to use water for domestic purposes only -- this confines party to use it for washing, drinking, toilets, etc. The rise of reasonable use doctrine however has expanded the ability of riparian owners to use water as they please and thereby interrupts the “natural flow.” The natural flow doctrine still has some “kick” because the right to the domestic use of water, under reasonable use, is superior to other rights

4. What Water Law Do We Have in the U.S.

a. Prior Appropriation System & The West: Used in the West, this system gives a preference to the person who stakes a claim FIRST (Note, in riparian systems, i.e. in the East it does not matter who came first and started to use the water first as newcomers are entitled to equal access). Also, any beneficial use in the West is o.k.

b. Riparian System & The East: Used in the east. When there is a shortage, in the east people share (in the west, under a prior appropriation system, the most recent appropriator loses). The range of “beneficial” uses is smaller in the east. Also, in the East, the federal government only has a navigation easement, whereas in the West, there are federal reserve rights which can trump state regimes.

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III. SERVITUDES AND EASEMENTS

A. EASEMENTS

1. Creation of Easements

a. Definition: An easement is a non-possessory interest in the land of another. The holder on an easement may make appropriate use of the land that is subject to the easement (the servient tenament) but not occupy or possess it except insofar as is appropriate to the right of use. The Restatement defines easements (1) interest in land possessed by another (2) interest which permits limited use of that land (3) interest which is protectable against interference by 3rd party (4) not terminable at will, although an easement can have a time limit (5) not a normal incident of possession and (6) ordinarily created by conveyance.

(1) affirmative easement: permits the use of land of another in a specified way(2) negative easement: restricts the other person’s use of land (e.g. an easement of

light and air). Easements may benefit the owners of the adjacent land (the dominant tenement) in which case they are called appurtenant easements, or they may benefit persons who are not necessarily owners of adjoining property (gross easements).

(3) Appurtenant easemant: one which benefits the dominant tenament; it can’t be transferred from estate of the dominant tenament. It is inseparable from the property of the dominant tenament and can’t be transferred from the estate of .the dominant tenament. Why can’t it be separated? If it could an appurtenant easement would be treated as an easement in gross. Note also, each of the next owners of property (if the land is subdivided) maintains the easement (but note there is a separate doctrine which says an easement can’t be overused) – but as an original matter

(4) Easement in gross: if an easement does not benefit its owner in the use and enjoyment of his land, but merely gives him the right to use the servient land, the easement is in gross. In gross is the term used to signify that the benefit of the easement is not appurtenant to other land. An easement in gross usually can be assigned if the parties so intent.

(5) Profit a Prendre: is one person’s right to enter land possessed by another and take from it either some part of the land itself or some product of the land – e.g., A has a legal right to go onto B’acre, which B possesses, and remove sand, oil, gravel, fish, etc.

b. Estate of Thompson v. Wade: P. owns a parcel of land with a river on one side and D’s property on the other. D’s property borders the public road. Both parcels were previously owned by N. N. separately conveyed the 2 parcels to two different parties. When transferring the parcel next to the river, he did not convey an express easement appurtenant over D’s parcel. N then conveyed the parcel bordering the road to D, reserving to himself and to Ps predecessor (the third party) a right of way across D’s parcel. Held: N, having already conveyed the parcel by the river, could not “reserve” in the deed to D an easement appurtenant to the river parcel for the benefit of P. Lesson: A deed with a reservation or exception by the grantor in favor of the third party does not create a valid interest in favor of a third party. REMEMBER: YOU CAN”T GRANT AN EASEMENT TO A STRANGER BY A DEED.

(1) What should N have done: He should have granted in the deed to P. an easement across the remainder of his land, and then, when he conveyed the road parcel to D, it would have had the easement on it.

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c. Baseball Publishing v. Burton (Helmholz calls this an instructive case): P. obtained from D a writing entitled “lease” signed by D. whereby the D in consideration of $25 agrees to give the P. the exclusive right and privilege to maintain an advertising sign on D’s building. The P. sent the D. the $25 check for 3 years. In each of those 3 years, D. returned the check. The P. however erected and maintained the sign. # years later D. caused the sign to be removed and P. seeks specific performance. HELD FOR P.

(1) The Contract was Not a LEASE: a lease conveys an interest in LAND – this writing gives the P. the exclusive right and privilege to maintain the sign, but leaves the wall in the possession of the owner. NOTE, w/ a lease, possession passes. When possession does not pass, you don’t have a lease. Note also, in this case, the parties wrote “lease” but the court treats title as a misrepresentation.

(2) The Contract was Not a LICENSE: A license merely excuses acts done by one on land in possession of another that, without the license would be trespass, conveys no interest in land and may be contracted for orally. The language “the exclusive right and privilege to maintain” indicates that the K is not a license. “To MAINTAIN” is inconsistent w/ a license, which gives one the right to go on to land and to do something. Also, a license is revocable at will and the writing gave specific duration. Also, one would not pay money for a license – you wouldn’t pay money for something that could be snatched away from you at any moment by the grantor licensor.

(3) The Contract Is an EASEMENT IN GROSS: An easement always lay in grant. Apart from prescription or necessity, an easement requires writing/deed in order to create a legal interest.

d. Bunn v. Offutt: In 1962, D. conveyed property to P’s predecessor in interest. The

contract of purchase stated “use of apartment swimming pool to be available to purchaser and his family.” This pool is located in a neighboring apartment building. The P’s predecessor was assured by the agent that use of the pool went w/ ownership of the home being purchased and the predecessor’s in interest gave the same assurances to the Ps when they purchased the property in 1969. After purchasing the house , D refused P’s request to use the pool. Did the original grant amount to a grant of a mere license or did the original owners acquire a private easement, transferable to B’s. HELD: Although the language/contract seems like an easement ( 1. The K is in writing and 2. The word “use”, like maintain, sounds like an easement), the interest was not one running with the land , so no easement and no interest that could be subsequently be transferred.

2. Implied Easements

a. Easements Implied By Necessity: usually involve a way of access and involves strict necessity, not merely convenience. An easement by necessity is implied only when a tract is divided; no prior existing use is required. It terminates when the necessity ends, unless the easement was granted by a deed.

(1) Requirements Necessary to Establish Easement by Necessity

(a) prior common ownership of the dominant and servient estates(b) transfer of one of the estates by the common grantor, creating lack of access; &(c) necessity of the easement for making use of the transferred property.

(2) Kingsley v. Gouldsborough Improvement Co.: D’s land is surrounded on 3 sides by water and it claims a right of way on P’s adjoining land so as to get to the mainland more easily. P. sues for trespass. HELD for P. Since D’s land has navigable waters where it can travel to go to and from the mainland, no legal

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necessity. Lesson: easements implied by necessity are not favored except in cases of strict necessity.

(3) Chandler Flyers Inc. v. Stellar Development Corp.: P. is the owner of a parcel of land located in D’s land. P. wishes to operate a flight school and seeks an easement of necessity over D’s adjacent taxiway leading tot he main runway. Held, since the property can’t be used for the particular purpose desired by P w/o such access – this is not a sufficient enough showing to justify imposition of an easement of necessity.

b. Easements Implied by Past Use: come into existence when property owners make use of one part of their property for the benefit of another part.

(1) Requirements for Easements Implied by Past Use

(a) prior common ownership of the dominant estate(b) transfer of one of the estates w/ the intent to create an easement(c) continuous and apparent use of the quasi easement (d) reasonable necessity for enjoyment of the dominant estate

(2) Flax v. Smith: P’s property sits behind D’s property, which borders a public street. P’s property is serviced by water and sewer lines, which run under D’s land, and have been in continuous use since 1950. Before 1966, all property in question was under common ownership – but in ’66 the city took what is now P’s land for non-payment of taxes and sold it to P’s predecessor by public auction. D. claims that P. failed to prove intent of the grantor to create an easement of necessity because the property was involuntarily taken from the grantor. Held: to satisfy intent an actual subjective intent on the part of the grantor is not needed – but a presumed objective intent of the grantor and grantee based on the circumstances of the conveyance are needed. LESSON: the recognition that an implied easement may arise out of a taking of property for nonpayment of taxes is not a departure from established law.

(3) The Steps the Court used in Flax

(a) prior common ownership: this was obvious; a definite(b) transfer w/ intent: this is hard, but the court says “ it doesn’t matter what your

subjective intent is – but what the objective intent is.(c) Apparentness: to have a quasi-easement the previous use must be apparent. It

is apparent if a grantee could, by a reasonable inspection of the premises, discover the existence of the use (e.g. a beaten path). “Apparent” does not mean the same thing as visible; a non-visible use may be apparent. Thus, for example, underground pipes may be apparent even though not visible, if the surface connections would put a reasonable person on notice of their presence.

(d) Necessity: Not the same type of strict necessity as w/ easements implied by necessity

3. Prescriptive Easements: In order to establish a right by prescription, a party must demonstrate open, notorious, continuous, uninterrupted and adverse possession.

a. Requirements of Prescriptive Easements:

(1) Actual(2) Continuous for the Statutory Period: Unlike for adverse possession, w/ an

easement, “continuous” should mean in a way consistent with the easement. Obviously you can’t bet there all the time. This is not the nature of prescriptive easements.

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(3) Exclusive: exclusivity does not mean the same thing as in adverse possession. Obviously the owner of the servient tenament shares the easement with the dominant tenament.

(4) Hostile: Under adverse possession, hostile = a claim of right commonly held by someone who believes he owns the property. Here, w/ prescriptive easements, hostile means hostile.

(5) Open and Notorious: Same requirements as for adverse possession; that is if you only sneak on property in the middle of the night, your possession is not open and notorious.

b. What do you do if you own a driveway and you want to prevent the use of the driveway from turning into a prescriptive easement: You have to grant some kind of conditional permission. You need acknowledgment on part of the easement uses – so send them a letter granting their permission, but requiring them to return the letter.

c. Illustrative Cases:

(1) Reed v. Piedimonte(2) State ex. re. Haman v. Foss

5. Scope of the Easement: After an easement is created, questions may arise about what use the easement owner can make of the easement or about what interference by the servient owner is permissible. The scope of an easement depends upon the intention of the parties. In ascertaining this intent, a court may examine whether the easement was created expressly or by prescription, what changes in use might reasonably be foreseeable by the parties, and what changes in use are required to achieve the purpose of the easement under modern conditions and preserve the usefulness of the easement to the dominant tenement. The court will also look at whether the increase in the burden in unreasonable

a. Brown v. Voss: In 1952, predecessors in title of parcel A granted tot he predecessor owners of parcel B a private road easement across parcel A. D. acquired A in 1973 and B in 1977 and C also in 1977 but from different owners. P wanted to build a single family house on both B and D and spent 11K before D. blocked the private road. P. seeks injunction against D’s interference with road and D counterclaims for damages and injunction for using easement other than for parcel B. HELD: While the traditional rule is that an easement appurtenant to one parcel of land may not be extended by the owner of the dominant estate to other parcels of land, the court overrules this and holds that since the new easement would not interfere with D, and would help P, then it should be allowed. Lesson: court rejects theory that unauthorized enlargement of the dominant estate extinguished the easement. Here, the court developed a rule under which if the injury to the servient estate resulting from the enlargement was minimal and the enlargement was socially valuable then the owner of the servient estate might be entitled to damages only, rather than equitable relief.

b. Hayes v. Acquia Marina: P broung suit against D for D’s proposed expansion of a marina, located on D’s land, which P. claims would overburden the easement across P’s land, the servient estate. P seeks enjoinment over the proposed expanded use of the dominant estate. HELD for D. Lesson: an easement created by a general grant or reservation W/O LIMITS to any particular use of the dominant estate is not affected by any reasonable change in the use of the dominant estate (although no use may be made of

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the easement which is different from that established at the time of its creation).

(a) Paving the Easement: Court holds this is in the scope of an easement. This court says that paving the road does not change the nature of the easement

(b) Would the Result Have Been Different if the Easement Was Acquired by Prescription: It is more difficult to increase the burden of an easement by prescription than any other kind of easement. The uses that give rise to the easement can continue, but there is no basis for assuming the parties intended the easement to accommodate future needs. After all, the owner of the servient land (O) might not have objected to A crossing O’s land to pick apples on A’s land, which use gave rise to the prescriptive easement, but the owner would have objected to a whole stream of traffic generated by a subdivision on A’s land. Thus, if a prescriptive easement is acquired by use to reach a house, and the use of the dominant tenement is changed from residential to commercial, the added burden of traffic probably will not be permitted on the prescriptive easement. In Hayes the language of the deed “an easement of a right of way” says nothing about restrictions, The language is of a general nature; you don’t have similar language when you have an easement by prescription – there you need to interpret what the parties have done.

6. Transferability

a. Appurtenant Easements: When the dominant tenement is transferred, any easements appurtenant are transferred with it. Similarly, the burden of an easement appurtenant passes with the servient land when transferred. An easement appurtenant is thought of as “attached” to the dominant land, and it benefits the possessor of that land, including an adverse possessor. Of course, the owners of the servient and dominant tenements may make a contrary agreement if they wish. By mutual consent, they can “detach” the easement and either “attach” it to other dominant land or convert it into an easement in gross, but neither party acting alone can do this.

(1) Martin v. Music: D./dominant estate agreed to let P. run his sewer lines across/under his property in return for an intake connection privilege. P. thought D. wanted the connection for a house which he was going to build. D. then sold his land to 2 others who each claimed a right to connect. Held for D. LESSON: the dominant estate may be divided or partitioned and the owner of each party may claim the right to enjoy the easement if no additional burden is placed on the servient estate.

b. Easements in Gross: Easements in gross may present special problems regarding transferability. If the benefit of an easement in gross is inherited by or assigned to a large number of person, it may be difficult to locate these persons (or the heirs upon their deaths), making it difficult to secure a release of the easement or to clear up title. (Note, w/ an easement appurtenant, the dominant owner is always known and available to bargain with).

(1) Miller v. Lutheran Conference & Camp Ass’n: O grants A and his heirs the exclusive right to boat and bathe in O’s lake. A assigns the right to B and C. B and C must use the easement as “one stock” both agreeing on the amount of use. NOTE ALSO, the court says that the law does not prohibit divisibility of easements in gross, so long as the parties act as one stock. Helmholz says this

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has been overturned. Now, the law says that divisibility is o.k. so long as it does not burden the easement..

7. Termination of Easements:

a. How Easements may come to an end:

(1) Expiration: when the time comes, the easement expires(2) Merger: when the dominant and servient tenements come together – the

easement ceases to exist. If the property splits again an easement is not automatically created

(3) Release: The holder of the easement can release the right to it, but only by a written instrument.

(4) Abandonment: Although neither oral release nor nonuse alone is sufficient to terminate an easement, if the owner of an easement acts in such a way as to indicate an unequivocal intent to abandon the easement, the easement is abandoned. Such acts can include oral release or nonuse coupled with failure to maintain the easement or permitting the easement to be blocked by others or establishing a substitute easement elsewhere.

(5) Forfeiture for Misuse: Where misuse can’t be corrected. E.g. an easement for r.o.w. to go to antique shop and then converts to pizza shop.

(6) Changed Conditions: If necessity ceases to exist; e.g. take the facts of Prah v. Mareti and suppose the owner of the dominant tenement stopped using solar panels – this would equal a changed condition; or if solar energy were determined to cause cancer.

(7) Laches: a version of estoppel(8) Adverse Possession: If the servient owner interferes with an easement in an

adverse manner (e.g. by erecting a fence across a roadway), the servient owner can extinguish the easement by prescription. The requisite elements of adversity are the same as for the creation of an easement by prescription. However, where an easement has been created but no occasion has arisen for its use and the servient owner fences his land, the servient owner is not deemed to act adversely until the dominant owner demands that the easement be opened and the servient owner refuses to do so.

b. Lindsey v. Clark (terminating by abandonment): Mere non-use of an easement created by deed, for a period however long, will not amount to abandonment. In addition to the non-use, there must be acts or circumstances clearly manifesting an intention to abandon.

B. Real Covenants

1. What are covenants about: A covenant is a promise to do or not to do a certain thing, relating to the use of land. Typically they are promises to do something on land (e.g. a promise to maintain a fence) or a promise not to do something on land (e.g. a promise not to erect a commercial building). The promise to do something is an affirmative promise. The promise not to do something is a negative promise. NOTE, a covenant is a promise respecting the use of land; while an easement is a grant of an interest in land.

2. For the covenant to run with the land, the following characteristics must obtain:

a. The Covenant is in Writing: At common law a real covenant had to be in writing and under seal. The requirement of a seal has been abrogated, but a writing is still required. Note that a real covenant will not be implied, nor can it arise by prescription. Most deeds are signed only by the grantor. By accepting the deed, the grantee is bound by any

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covenants in the deed to be performed by the grantee. So, the grantee is bound without signing.

b. The Parties Intend for the Covenant to Run With the Land: If the word “assigns” or the word “successors” is used in the instrument the intention is usually clear that the covenant is intended to run. But it is sufficient if the intention can be gleaned from the terms, the purpose and the circumstances surrounding the making of the writing.

c. The Covenant Must “Touch” and “Concern” the Land: This means that the effect of the covenant is to increase the use or utility of the land or to make it more valuable in the hands of the covenantee or to curtail the use or utility of the land or make it less valuable in the hands of the covenantor. Frequently if the benefit of the covenant touches and converns the land of the covenantee, the burder also touches and converns the land of the covenantor, and vice-versa. However, it is possible for the beneefit to touch and concern the land withougt the burden doing so, and vice-versa. One must treat separately the running of the benefit and the running of the burden. The covenant must affect the legal relations of the parties as landowners and not as members of the community at large.

(1) Professor Bigelow’s test for “touch” and “concern”: There has to be a nexus between the land in the covenant. SO, if a developer wants to have a health club on premises, and wants the landowners to pay dues – it is hard to see touch and concern here. This test says that the covenant must have some connection with the land.

d. There Must be Privity of Estate: A majority of courts are said to require privity of estate between the original promisor and promisee, as well as privity of estate between the promisor and is assigns.

(1) Horizontal Privity: a specified relationship existing between the original promisor and promisee

(2) Vertical Privity: a specified relationship between an original party to the contract and an assignee.

(3) Example: 4 parcels owned by O. O grants A #1 w/ no restrictions; O grants B #2 w/ covenant. Can A sue to enforce the covenant? No – because there is no privity between A and B. Note, while A could not enforce the covenant, the daughters of O could because they did stand in (vertical) privity with B.

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3. Illustrative Cases and Rules:

a. Neponsit Property Owners v. Emigrant Industrial Savings Bank: In 1911, the Neponsit REALTY company, of which P. is its assignee, conveyed the land to D’s predecessor which contained a covenant providing that the land owner and their heirs or assigns, shall be subject to an annual charge which will be used for the maintenance of the roads, and parks, etc. and such other public purposes as shall be determined by the part of the first part or its assigns. Does this covenant apply, since the D. is being forced to do something rather than to refrain from doing something? COURT HELD YES COVENANT APPLIES. Court ruled that “in order that the burden of maintaining public improvement should rest upon the land benefited by the improvements, the grantor extracted from the grantee of the land a covenant that the burden of paying the cost should be inseparably

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attached to the land which enjoys the benefit. Any distinction that would exclude such a covenant from the classification of covenants which “touch and concern” the land would be based on form and not on substance.” ALSO, What about the privity requirement, as the Ps were not the property owners but merely agents of the property owners? The court held “only blind adherence to an ancient formula devised to meet entirely different conditions could constrain the court to hold that a corporation formed as a medium for the enjoyment of common rights of property owners owns no property which would benefit by enforcement of common rights and has no cause of action in equity to enforce the covenant upon which such common rights depend.”

(1) Affirmative Nature of Action Made by the Covenant: The court in Neponsit does not deem it fatal to the touch and concern requirement to require the grantee to do something. So, back to the health club hypo. While the dues for a health club consists of an affirmative act, like Neponsit, the health club is a harder case.

(2) The Privity Issue: In a traditional sense, the property owner association was not in privity with the grantor. In Neponsit , the court stretches the privity requirement – so that the requirement is slightly attenuated without being overturned.

b. Rhue v. Cheyenne Homes: D. seeks an injunction because P. sought to move a 30 year old Spanish style house into a residential development where the owner of the development had placed a covenant on the property which stated that an architectural control committee must approve plans before a home can be place on a lot. The purpose of this covenant was to preserve the “present and future” values of the property. Held for D. So long as the intention of the covenant is clear (and it was clear in this case) such covenants can be enforced. Lesson: While covenants requiring approval of a committee before the erection of a house is valid, a refusal to approve plans must be REASONABLE and in GOOOD FAITH. Here the committee acted in good faith.

c. Feider v. Feider: Two brothers, F and A were adjoining landowners. In 1951, F & A executed an agreement where F, party of the 1st part, & his heirs and assigns, granted to A, party of the 2nd part, an option to purchase F’s land if F were to sell (e.g. a right of first refusal). In 1980, F sold the property to another party and did not offer to sell to A’s children. A’s children seek damages. HELD FOR P (F’s heirs) because the agreement was not a covenant running with the land, but rather a personal contract.

(1) Right of First Refusal: is not an interest in land ; it is only a personal right. (2) Horizontal Privity: (e.g. privity between original parties) did not exist here

because the right of first refusal did not pass w/ an estate in land(3) Touch and Concern: does not exist here. If it did it would have needed to

render less valuable F’s land and more valuable A’s land

C. Equitable Servitudes: must meet the same “touch and concern” and “intent” requirement that is applied to running covenants. The real basis for the enforcement of equitable servitudes is that privity of estate is replaced by the doctrine of notice as recognized in the equity courts. A person who takes land with notice of a restriction cannot in equity be permitted to violate that restriction. The usual equitable remedy granted is an injunction against violation of the covenant.

1. Distinguished from Real Covenants: An equitable servitude is a covenant enforceable in equity by or against successors to the land of the original parties to the contract. Hence, if the plaintiff wants equitable relief (injunction, or specific performance), the plaintiff must show that the covenant qualifies as an equitable servitude.

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2. Tulk v. Moxhay: Tulk sold Leicester Square in London to Elms, who promised for himself, his heirs and assigns not to build on the Square. Elms conveyed the Square to Mozhay, who had notice of the covenant. Moxhay proposed to build on the Square, and Tulk sued for an injunction. HELD: The court deemed it inequitable that a covenant should be unenforceable against a subsequent purchaser where the purchaser acquired the land with knowledge of the restriction. The purchaser, Moxhay, probably supposed himself bound by the covenant and probably paid less for the land than he would have had to pay for unburdened land. To hold the covenant unenforceable would give Moxhay an advantage he did not bargain for and would unjustly enrich him.

3. Equitable servitude compared with real covenant: The principal differences between and equitable servitude (enforceable in equity) and a real covenant (enforceable in law) are:

(a) Remedies: If a promisee seeks damages from an assignee, the promisee must go into law and attempt to enforce the promise as a real covenant. If the promisee seeks an injunction, the promisee must go into equity and ask for enforcement of an equitable servitude.

(b) Privity of Estate: Neither horizontal nor vertical privity of estate is required in equity. The court, in enforcing an equitable servitude, is enforcing an interest in land analogous to an easement, which is enforceable against any person who interferes with it. When a third-party beneficiary is suing to enforce an equitable servitude, however, in some states the 3rd beneficiary must own land that was granted to the beneficiary or his predecessor by the promisee (e.g. a subdivision lot earlier conveyed by the developer, who secures a promise from a later buyer for the benefit of earlier buyers).

(c) Creation: A real covenant must be in writing. In many states and equitable servitude will be implied.

4. Common Scheme Does Not Have to Be in a Deed: If plots 1-10 are developed for residential purposes and 1-5 were granted w/ no restrictive covenants and 6-10 were granted with restrictive covenants, restricting plots to residential use, plots 1-5 can’t then develop gas stations. It is not necessary for common scheme to be in deeds – notice is what counts and 1-5 had sufficient notice as to the character of the neighborhood. This is called inquiry notice = when a purchaser buying into a built-up residential area where the houses appear to have been built in accordance with a plan should look at the other deeds out from the developer to see if any basis for an implied covenant exists. Regardless of whether such prior deeds are in the purchaser’s chain of title, the lay of the land puts him in INQUIRY NOTICE to look at the deeds of the neighboring lots from the developer. Note also, that it would be an easier case if 1-5 were sold w/ covenant and 6-10 without. Then 6-10 would definitely have notice of the scheme.

1 2 3 4 56 7 8 9 10

5. Comment on Equitable Servitudes: Tulk coupled with common scheme and rule of inquiry notice is a real forcible restriction on the use of the property within the subdivision.

D. Termination of Covenants: Covenants may be terminated in many ways – according to their terms, by unilateral actions (e.g. acquiesence, abandonment, or laches) or by bilateral action (e.g. merger of the interests of the covenantor and covenantee, etc). But the most litigated doctrine re: their termination involves changed circumstances.

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5. Grange v. Kroft (changed circumstances): P. is 21 owners of lots in a 31 lot residential development seek to enjoin D. from constructing an auto trailer park on its lot within the development. The D’s purchased their lot in 1950. This lot is the largest in the development. The lot, which was conveyed to M in 1921, by the original owners contained a deed which restricted the use of the lot for private residential purposes. The covenant stated that future owners may maintain suits in equity for specific performance of any or all of the said covenants. The D. claims that other lots that were conveyed by the original owner of the plot did not contain the building restriction. Also, D claims drastic changes have occurred in the area which makes it unreasonable and inequitable to enforce these building restrictions against them (e.g. a garbage dump near D’s premises and the passing of sewage near D’s lot have created a bad odor and rendered the lot and surrounding ground less desirable for residential purposes. Held for P. The change in the character is not sufficient to constitute a defense to the suit. Lesson: Before a defense to a changed circumstance may prevail, there must be a change in the character of the neighborhood sufficient to make it impossible to secure the benefits sought to be realized by the restriction.

(a) Did the D’s agree to the provision? No, they did not specifically. But the covenant ran with the land and they did have notice. But what if there was no original restriction? The covenant would still be there IF D. could SEE 9e.g. notice) that the community was a residential community.

3. 4 Defense to the Covenants (e.g. How to Terminate)

a. Conduct of the parties: there are 8 different types of conduct that can keep a covenant from being enforced

(1) Agreeement: parties agree to rescind(2) Merger(3) Laches: delay coupled with prejudice; e.g. if a court says that it is o.k.

to build a trailer park and then other neighbors try to halt construction(4) Acquisence: parties have allowed other parties to violate the covenant

for the stated period (5) Abandonment: (6) Unclean Hands: A person who seeks equity can’t come into a court of

equity with unclean hands. (e.g. if the only P. was the dog kennel on xxxx)

(7) Release(8) Estoppel: P. engages in conduct and D relies on P’s promise.

b. Change in circumstances:

c. Relative Hardship: The value of enforcing restriction is slight but harm to D. from enforcing covenant is large.

d. Government Action: If the government takes land for e.g. non-payment of taxes, they are not bound by the covenant.

E. Restatement 3 of Property on Servitudes: brings all servitudes (easements, covenants, and real securities) together under “servitudes.” There are only 3 requirements for servitudes a) it must be valid in itself (e.g. it has to be legal and not violate public policy); b) it must be the intention of the parties to have the covenant bind inheriters; and c) there must be notice – either actual, constructive or implied.

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1. What’s Gone in Restatement 3?

(a) privity no longer required: vertical privity taken care of by notice(b) touch and concern requirement is gone: what takes its place? The intent that

successors be bound

2. Will Court accept Restatement 3?: This remains to be seen; the Restatement 3 is new.

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LAND CONVEYANCING

REAL ESTATE AGENTSBroker’s Commission: See Tristam’s Landing,Inc. v. WaitTraditional Rule: Broker gets commission when he produces a customer ready, willing, and able to buy on the terms and price seller sets. Once buyer is accepted by seller, broker is entitled to commission.Modern Rule: Broker is entitled to commission only after the transaction has been completed. If deal falls through because of seller, then revert to traditional rule. Tristam’s Landing, Inc. v. Wait (MA 1975): Establishes duty of broker under the modern rule regarding broker’s commission. Broker is entitled to commission when “(a) he produces a purchaser ready, willing and able to buy on the terms fixed by the owner, (b) the purchaser enters into a binding K with the owner to do so, and (c) the purchase completes the transaction by closing the title in accordance with the provisions of the K.”

CONTRACTS OF SALEStatute of frauds: The contract for the sale of land must be in writing, and both buyer and seller must sign it in order to be valid. Requires the basic elements of the K: identification of parties, description of property, price, and terms and conditions of sale. - Price, if agreed upon, must be included in the K, but if no price is agreed upon, ct may imply a reasonable price.Cash v. Maddox (SC 1975): A check does not fulfill the requirements of the Statute of Frauds. The essential terms of the K must be expressed clearly and definitely so that there is no need to resort to parol evidence.

Doctrine of equitable conversion: States that during the period between the contract of sale and the closing, the buyer is the owner in equity (legal title with real interest) and the seller merely

holds a security interest in the property (may hold legal title in trust for buyer). - N.B., US cts have no set pattern or rule of when to apply D. of EC. - In the event of death of either buyer or seller: buyer passes down real interest, seller passes down personal interest secured by a lien on the property.- Buyer may not have possession of the property until closing.Risk of Loss: When property is destroyed during the period between the contract of sale and the closing, the majority of cts hold that the buyer has risk of loss because the buyer holds the real interest (based on seller’s right to specific performance)- If seller cannot show marketable title (entitled to specific performance), then the loss stays with the seller.- The minority of cts have the Substantial/Insubstantial Loss Rule (MA Rule). Imply a condition in K that if the loss of the substantial and the K shows that the bldg was a material part of the K, then the K is void. Seller does not have access to buyer’s insurance proceeds. - Some cts find that the individual who has possession of the property bears the risk of loss. Doesn’t this have to be the seller though, since buyer cannot have possession until after closing?Options Contracts: The D. of EC. does not apply in options Ks until the option has been exercised.Bryant v. Williston Real Estate Co. (WV 1986): The property was damaged before the deed was delivered to the purchaser. Ct applies the Substantial/Insubstantial Loss rule (Uniform Vendor and Purchaser Act). Vendor must bear risk of loss here because there was substantial damage to the property.

Disclosures About The Property: Vendor and her real estate agent have a common law duty to disclose material defects to purchaser if it is not known by the purchaser and latent. If don’t

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fulfill this duty – fraudulent concealment or fraud by omission. Failure to do so holds vendor liable for damages.- Not clear if vendors have a duty to inspect property prior to for material defects.- Agents held to higher standard of care than vendor.- Vendor subject to state and local statutes and ordinances requiring inspection and disclosure of certain defects – e.g., lead paint and radon - Regime of caveat emptor is not entirely dead.- Not clear if seller has duty to disclose off-site defects (e.g., hazardous waste) - Examples: Seller would have duty to disclose termites, if previous owners were criminals. Would not have duty to disclose haunted (not material) or that the cellar floods (patent).

Time for Performance of the Contract: If K is silent as to time, then ct infers a “reasonable” time. If delay is unreasonable, both parties are entitled to specific performance. Even if K sets a specific date for closing, K is specifically enforceable within a reasonable time after that date. Time is of the essence: Makes time a condition rather than a covenant.

Express “Subject to Financing” Contract Terms: Clause in which purchaser conditions his obligation to purchase on his ability to obtain a loan. Usually considered a condition precedent. Thus, contract is only binding if financing is found.- Purchaser has duty to make a reasonable, good faith effort to procure financing. Reasonableness is measured by customary terms and practices of the mortgage market (objective standard).- Some Ks stipulate maximum term and interest rate, and minimum loan amount buyer is required to accept. Bruyere v. Jade Realty Corp. (NH 1977): Case where s enter purchase and sale agreement and are approved for a mortgage in satisfaction of “subject to financing” clause of K. s get divorced. Wife cannot obtain financing, seek return of deposit. Ct holds s not entitled to recover deposit because s altered their circumstances, thereby compromising their borrowing potential, through a voluntary act. I.e., it was ’s fault that they couldn’t get financing, they should not get deposit back.- Helmholz says that in theory, the could have sued for the entire K price because language of K is “subject to financing at 7 3/4 % for 30 years.” This condition precedent is fulfilled, s have obligation to pay.

IMPLIED CONTRACT TERMS: Typically there are 2 implied K terms with every contract of sale. 1. Implied warranty of habitability (new housing) – mainly deals with the structural components and infrastructure of housing. 2. Implied covenant of marketable title (or merchantable title). Marketable Title: A title that is reasonably free of encumbrances and other title defects, and free of the risk of litigation. This covenant is based on the principle that the vendor cannot convey land unless he has title to it.How a title becomes unmarketable: 1.If vendor had title but lost it in an action or proceeding. 2. If vendor never acquired title because of a flaw in the chain of title. 3. If the title has an encumbrance (lien or other nonpossessory interest or a nonfreehold possessory interest) on it.- Examples of encumbrances: mortgage, mechanic’s lien, easement, restrictive covenant, irrevocable license, lease, party wall agreement, rights of cotenants, etc.- Sometimes a zoning can cause a title to be unmarketable if it results in a judgment or lien affecting the property.- Vendor need not have marketable title until closing. - Quitclaim deeds do not waive implied covenant of marketable title. - Title is unmarketable if the next sale will be materially affected.

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- Parties can expressly waive the covenant of marketable title.

Breaks In The Chain Of Title: Marketable title standard does not require that the title be provable based solely on the public property records.Adverse Possession: Weight of authority says that when title shows that elements of adverse possession have been fulfilled, then title is marketable (even if there has been no quiet title action). However, cts can also decide that the gap in the chain of title should deem the title unmarketable. Trimboli v. Kinkel (NY 1919): Deals with negligence of lawyer in failing to inform his clients that the title was marketable through adverse possession. Flaw in the title because executor of estate exchanged the parcel of land for another parcel, and the law does not allow for the power of exchange in the power to sell and distribute the proceeds. However, s possessed the land for over 50 years, and fulfilled all of the elements of adverse possession. Thus, the title is no longer flawed and now is marketable. However, the lawyer is found negligent.

Express Title Standards In Contracts: To avoid problem of Trimboli, purchaser should require vendor to present a marketable title “of record.” Only satisfied by a title for which each successive owner recorded the deed or other document by which it acquired its interest in the property. - Compare to express requirement for “insurable” title. Although usually equivalent to marketable title, can still be dangerous if the title has an encumbrance that insurance covers.

Quantity Or Acreage DisputesTurner v. Ferrin (MT 1988): s contracted to buy 96.73 acres from s. Later found out that the property only contained 90.73 acres. The ct holds that this is a sale in gross (a sale of a tract of land made with no guarantee about the exact amount or size of the land being sold), and thus the s got what they bargained for – the 6 acres is negligible. Usual rule is that if discrepancy is material (usu. > 50%), then entitled to rescission of K. Moreover, the price of K was an aggregate price and was not based per acre and Turners observed the land before they bought it.- Rescission may occur when: 1. if the consent of the party rescinding was obtained through bad faith (e.g., fraud) of the other party, 2. if, through the fault of the party as to whom he rescinds, the consideration of his obligation fails in whole or in part.Doctrine of Merger by Deed: Seller’s contractual obligations are discharged once the closing has occurred and seller’s obligations are measured strictly by the deed. Remedy is in deed and not in the contract. - ----- Be careful, because once you accept the deed at closing, implies that you accept the title even if it has defects (by merger by deed). - Could have helped Turners.

Contract Remedies: Buyer Seller

Rescission On breach by seller, buyer can rescind K and recover down payment.Cannot rescind prior to closing because seller does not have title. Then buyer is in breach.Must happen by mutual agreement or by court decree.Reasons include: mutual mistake of fact, failure of consideration, fraud, intentional misrepresentation, undue influence, and

On breach of buyer, seller can rescind K.Must happen by mutual agreement or by court decree.Reasons include: mutual mistake of fact, failure of consideration, fraud, intentional misrepresentation, undue influence, and duress.Person seeking rescission must restore all that he received under K.

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duress.Person seeking rescission must restore all that he received under K.

Specific Performance

Land is unique, so a remedy is not adequate. Thus, a buyer is entitled to specific performance if the seller breaches the K. However, if the would suffer undue hardship or if circumstances have changed so that specific performance would not be equitable, then it will not be granted.

Land is unique, so a remedy is not adequateIf there is a defect in the land, the seller can demand specific performance with a suitable adjustment in the price of land. (May be new trend to deny specific performance to the seller when he can avoid and mitigate damages) – much less sympathetic to vendors.

Damages Buyer seeking damages is entitled to difference between K price and market value of land on date of breach (Benefit of the Bargain)Other half of states award restitution damages measured on day of breach: Out of pocket costs incurred from day of transaction to day of breach.

Seller seeking damages is entitled to difference between K price and market value of land on date performance is due (Benefit of the Bargain)Other half of states award restitution damages measured on the day of breach: amount above minus amount able to be recouped from resale.Can also be determined from date of purchaser’s breach, date of contract, and date vendor resells the property.May be a clause in the K that stipulates that seller can keep deposit – will be upheld by ct if not against public policy.

Other Remedies

Every purchaser has an equitable lien on property for any portion of the purchase price paid before the vendor defaults or otherwise refuses to close transaction.

Every vendor has an equitable lien on the property for any portion of the purchase price not paid at closing.

LAND TRANSFERSCovenants:1. Seisin: Warrants that the grantor owns the title that the deed purports to convey. Some jurisdictions do not require title, merely possession.2. Right to Convey: Warrants that the grantor has the right to convey the property interest described in the deed. Virtually coextensive with seisin.3. Against Encumbrances: Warrants that the title is not subject to those lesser property interests that do not breach the covenant of seisin. E.g., easements and real covenants and monetary charges against the land.4&5. Warranty and Quiet Enjoyment: Protect against same kinds of defects as seisin and against encumbrances. Any outstanding interest in the land can violate the covenants of warranty and quiet enjoyment if the adverse interest holder asserts his rights in the land. 6. Further Assurances: Similar to other covenants except enforced by an action for specific performance based on grantor’s failure to convey title properly.General Warranty Deed: Contains covenants of seisin, right to convey, against encumbrances, warranty and quiet enjoyment, and further assurances. Provides the most protection. Includes title covenants for any defect in the title, whether created before or during the grantor’s period of ownership. Conveys fee simple. - “Warrants”Special Warranty Deed (Limited Warranty): Contains any limitation on the covenants of seisin, right to convey, against encumbrances, warranty and quiet enjoyment, and further assurances. Usually merely limited in time to the grantor’s period of ownership. - Usually contains covenants of seisin, against encumbrances, and quiet enjoyment.

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Quitclaim Deed: Transfers whatever interest, if any, the grantor has in the property. Usually used to release mortgages, transfer property intrafamily, or settling a boundary line dispute.- “Quitclaims” Required Elements of a Deed: Parties names, legal description of land, words reflecting the grantor’s intent to convey the property, and the grantor’s signature.1. Parties’ Names: Grantor’s name must appear in body of deed. Must be able to identify grantor with sufficient certainty. Similar requirements for grantee’s names.2. Legal Description of Land: Must be sufficiently detailed so that it can be distinguished from every other parcel (metes and bounds, government survey system, or subdivision plat).3. Words reflecting the grantor’s intent to convey the property: No specific words needed. E.g., grant, convey, give, sell.4. Grantor’s signature: Need it because grantor is the person to be charged. 5. Consideration is not required because this is a conveyance and not a contract.N.B., Deed is presumed to convey fee simple if ambiguous.Deed vs. Will:Deed Will- Takes effect in praesenti- Normally has consideration and usually mentioned in deed itself- No consideration required.- Effective between the parties even if not recorded- Common law courts- Under common law, livery of seisin is required- Statutory formalities- Only statutory requirement comes from statute of frauds

- Takes effect after you die- Always a grant, no consideration

- No consideration required- Must be probated to be effective- Probate courts- Livery of seisin not required

- Must be done in conformance with statutory formalities.

Anderson v. Anderson (TX App.1981): Jewell Anderson intended to convey her property to the peoplee who would come and take care of her for the rest of her life. Altha Miller, her granddaughter, had planned to do this, but was unable to do so. Jewell deeded her property to Altha who received it but did not pay for it or fulfill any of the support obligation. She deeded the property to brother of the appellee upon his statement that he intended to fulfill the support obligation. The ct finds that the contract was procured by fraud.- This is a covenant and not a condition subsequent because to there must be clear and unequivocal intent for something to be found as a condition subsequent. Prefer condition because of cts reluctance to enforce forfeiture clauses. - Merger by deed: Once the contract is closed and the deed has been conveyed, then neither the buyer nor the seller can bring any action under the contract. Actions are limited to the four corners of the deed. (Similar to Parol Evidence Rule). So even if there had been a K, wouldn’t matter because of merger by deed.

Statutory Short Form Deeds: Statutes that specify the words that must be used when drafting a warranty deed or a quitclaim deed. “warrants” – Warranty deed“quitclaims” – Quitclaim deed.“bargain and sell” – Limited warranty deed.Granting Clause: Initial clause of the deed, setting forth parties, consideration, words of grant, and description of the land and its appurtenances.Habendum Clause: “to have and to hold” – Includes the words of inheritance necessary to convey fee simple absolute or to limit estate. Also specifies which title covenants the deed includes.

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Deed Covenants: Distinguish between future and present covenants. - Present covenants (seisin, right to convey, and against encumbrances): Statute of limitations begins to run at moment deed becomes effective.- Future covenants (warranty, quiet enjoyment, and further assurances): Not breached until eviction occurs.Brown v. Lober (IL 1979): Browns purchased property in 1957. Original owners granted the 2/3rds mineral rights as a coal option to someone else in 1974. In 1976 Browns discovered they only had 1/3rd mineral rights. Reaffirms covenant of seisin as covenant in praesenti and is broken at time of delivery of deed, and thus Browns are barred from action because of statute of limitations. Cannot recover for breach of quiet enjoyment because there has been no eviction, and the cause of action for breach of quiet enjoyment does not begin to accrue until then. Ultimately the problem is that the Browns did not do an adequate title search.Proffit v. Isley (Ark.Ct.App.1985): 2 months after Isleys bought the land, discovered that Proffitts (previous, but not the immediate grantor) had mortgaged the land and the mortgage was still outstanding. Ct finds that Isleys do not have a cause of action against the Proffitts, only have a cause of action under breach of the covenant against encumbrances against their immediate grantor.St. Paul Title Insurance Corporation v. Owen (Ala.1984): Owen deeded the property to his brother and sister-in-law by warranty deed. The Owens (brother and sister-in-law) conveyed the property to Carlisle. The mortgage company obtained title insurance from . Carlisle defaulted on his payments and mortgage company tried to foreclose. Ct found that Carlisle had no right, title, or interest in the property and thus mortgage company could not foreclose. Mortgage company sued , sued each of the Owens for breach of covenants of title. - Establishes that covenants of quiet enjoyment and warranty are the only two covenants within this warranty deed to be in futuro and to run with the property. Thus, all grantors are liable to the present grantee for a breach of these covenants. There is no breach until there is an eviction under paramount title. Here, this occurred when the ct held that Carlisle had no interest in the property. Thus, the title insurance company, as subroger, is entitled to assert a claim for breach of covenants of title. - Ct finds that the Owens (brother and sister-in-law), by conveying a limited warranty deed, were merely warranting that they had not conveyed the property to anyone else, that they had not caused anyone to do anything to interfere with quiet enjoyment. Owens cannot be held liable for the breach of the covenant of quiet enjoyment and warranty because they are Owen’s fault and not theirs.- only entitled to nominal damages because not clear that Owen (remote grantor) received any consideration for conveyance to Owens. If Owens’ had been liable, then would have recovered purchase price (immediate grantor) – if more, then vendor would be liable for potentially large and unforeseeable damages.- Warranty deed is in some sense morphed into a quitclaim deed here because there was no consideration in the grant and because the Owens never attempted to impeach the deed.Estoppel by Deed: Where a grantor purports to convey an estate in property that he does not own, if the grantor subsequently acquires title, the title passes by operation of law to the grantee under the earlier deed. By executing a deed without title, the grantor is deemed impliedly to have covenanted that, when he obtains title, he will immediately convey it to the grantee. Grantee awarded land, not damages.- The doctrine is based on the notion that a grantor who gives a deed warranting the title is estopped from later denying that title passed to the grantee. - Normally does not apply to quitclaim deeds.

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Legal Descriptions: Must be detailed enough to distinguish the parcel from every other parcel of land. Errors can make title unmarketable. The description need not be complete in the deed, but must be ascertainable from other documents (i.e., public records). 1. Government Survey System: Uses Townships and Ranges to describe lands (each township, or intersection of township and range, is 36 square miles). Townships are then divided into 36 sections. These are then described as halves and quarters. Used primarily in Western and Southwestern states. Works well for farms.2. Metes and Bounds: Describes each boundary of the property. Begins with a point of beginning, and then gives a call for each successive boundary until the last call closes the legal description back at the point of beginning.3. Recorded Subdivision Plat: Landowner submits a plat map of property and subdivisions can be described in reference to the map.Ten Canons of Construction1. Language of the deed is construed against the grantor (similar to Law of Ks).2. If the deed contains 2 descriptions, one ambiguous and the other unambiguous, the latter prevails in order to sustain the deed.- Specific language controls general language.- Law seeks to sustain deed rather than upset it. Clear that parties intended to convey something.3. Extrinsic evidence will be allowed to explain a latent ambiguity but a patent ambiguity must be resolved within the four corners of the deed. Old rule, is not as effective anymore.4. Monuments control distances and courses, courses control distances, and quantity is the least reliable guide of all.5. Useless or contradictory words may be disregarded as mere surplusage. E.g., O A & A’s heirs themselves. Disregard “themselves.”6. Particular descriptions control over general descriptions, although a false particular may be disregarded to give effect to a true general description. E.g., A conveys to B Blackacre by Swanee river. Not by Swanee, but by Ocoee river. Swanee river is disregarded.7. A description, insufficient of itself, may be made certain through incorporation by reference. I.e., may reference other documents to complete description.8. If an exception in a deed is erroneously described, the conveyance is good for the whole tract and title to all of the land passes. E.g., if grantor conveys Blackacre except for some area, and the exception is faulty, then the ct will sustain the larger grant at expense of grantor.9. When a tract of land is bound by a monument which has width, such as a highway or stream, the boundary lines extends to the center, provided the grantor owns that far, unless the deed manifests an intention to the contrary. 10. A description in a deed includes the appurtenances to the tract even though they are not specifically mentioned in the deed.

RECORDING ACTSHistory of Recording Acts: Preceded by the Statute of Enrollments in 1536, which required all conveyances to be enrolled in London. However, conveyancers avoided the system.Purposes of Modern Recording Acts: To establish a real property recording system and to establish priorities among conflicting claims to land and promote certainty of titles. Although not required, law does provide people with incentives to record. Common Law: First in time, first in right.Types of Recording Acts: Assume O A and then O B.Type of Act What must B do to

prevail against A?Prevalence of this type of Act

Example

“Notice” type B must be a purchaser of value and without notice

About half the states No instrument affecting real estate is of any validity against subsequent purchasers for a

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valuable consideration, without notice, unless filed in the office of the recorder.

“Race” type B must record his own conveyance before A records

DL, LA, NC A deed concerning lands or tenements shall have priority from the time that it is recorded in the proper office without respect to the time that it was signed, sealed, and delivered.

“Notice-race” or “Race-notice” type

B must both be a purchaser for value and without notice, and also record before A.

About half the states.

Every…conveyance not…recorded is void as against any subsequent purchaser or mortgagee in good faith and for valuable consideration from the same vendor…whose conveyance is first duly recorded.

Indexes: 1. Grantor-Grantee Index: Consists of two indexes – one arranged alphabetically by name of grantee and one arranged alphabetically by name of grantor. Shows all property interests conveyed by each owner (e.g., mortgages, leases, and restrictive covenants). Always look at both and always look backwards. Also have to look at records in tax assessor’s office, and probate court. Usual index.2. Tract Index: Each parcel of land is assigned an index page that lists every recorded document affecting title to that parcel.

Bona Fide Purchasers: Two components determine a bona fide purchaser:1. Must not have had notice of the conflicting claim when it acquired its interest in the property.2. Must have given consideration for the conveyance.Notice: - Constructive: When buyer is charged with notice by a statute or rule of law, irrespective of any information which he might have had (independent of any mental operation).- Actual: When buyer has information in regard to a fact, or information as to circumstances an investigation of which would lead him to information of such fact (involving mental operation). - Inquiry: When the purchaser has actual or constructive knowledge of facts which would lead him, a prudent person, to suspect that another person might have an interest in the property, to conduct a further investigation into the facts.- Possession is a form of notice and is the reason why there aren’t more claims under the Recording Acts.1. Lack of Notice In re Barnacle (RI 1993): A mortgage that is defective does afford constructive notice to subsequent bona fide purchasers. Ct goes against the majority in other jurisdictions to reach this result. The ct does not want to allow bfps who are too irresponsible to look up the title history of a deed to receive a windfall as a result. The defective mortgage at least affords subsequent purchasers inquiry notice. JC Penney v. Giant Eagle, Inc. (3d.Cir.1996): A record of a memorandum of a lease articulating an exclusive right to operate a drugstore affords constructive notice to subsequent lessees. Methonen v. Stone (Alaska 1997): Methonen bought land without knowledge that he had to provide water to the other subdivision lots. Trial court found on SJ that Methonen’s deed created an easement in favor of the other owners. However, this court finds that Methonen might not

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have had either actual, constructive, or inquiry notice, and thus the easement cannot be established. Lower court needs to determine whether or not Methonen had inquiry notice.2. Payment of ConsiderationGeo. M. McDonald & Co. v. Johns (WA 1911): Establishes rule that mortgage is not made with consideration and thus the Recording Acts do not apply to them. Johns executes a mortgage to Bechtol, then executes a mortgage to McDonald. McDonald recorded the mortgage before Bechtol did, and had no notice of Bechtol’s mortgage. Bechtol wins because McDonald’s recording is notice only to subsequent mortgagors and not previous mortgagors. Bechtol’s mortgage was bona fide at the time of its execution and delivery. - Not clear whether the court is right in saying that a mortgage is not supported by consideration. Other courts have held that mortgages are supported by consideration. - Donees of land cannot qualify for BFP status because they are not purchasers for value.- Partial purchasers (purchaser pro tauto) are only entitled to the proportion of the land that has been paid off (hold a lien to that portion).- If B makes an executory promise to provide services to O, B is not entitled to become a BFP.3. Bona Fide Purchaser Filter: Affords BFP full right to transfer good title. Exception: prevents grantor or former owner to establish rights though this process. Prevents owners to use BFP filter to clean up their title.Chergosky v. Crosstown Bell, Inc. (MN 1990): A person who assumed the obligations of an unrecorded K for deed at the time he acquired an interest in a piece of real property may not assert priority over the written K for deed after purchasing a mortgage on the property from a BFP who recorded the mortgage before the K for deed was recorded. Exception to BFP Filter rule comes from estoppel by deed.

Recording and Indexing: Whether or not a deed has been properly recorded and indexed to gain protection under the Recording Act.Zimmer v. Sundell (WI 1941): Establishes rule that under the WI race-notice statute the deed must be recorded back to the common grantor. This affords prior and subsequent purchasers constructive notice of your interest in the land. A stranger to the title is one whose interest is not recorded and cannot be traced if a subsequent purchaser were to look in the index. The deed to the stranger to the title is a fugitive deed. Ct had to decide the case this way due to policy concerns. If the ct decided for the , it would be unfair to subsequent purchasers who receive the deed from mesne conveyances from the common grantor because they do not have notice of other rights to the land.Frank v. Storer (MD 1986): A real interest that is recorded but not indexed is still within the recording requirements of the statute. Although this places a danger of losses to subsequent purchasers in that they are not afforded constructive notice of other claims on the deed, the ct feels that it is up to the legislature to change the requirements of the Recording acts. - Doctrine of idem sonans (if the name as written sounds the same as the pronunciation of the correct name, it refers to the correct person): Recorded names pronounced substantially the same as the correct ones gave constructive notice to subsequent purchases. Happens pretty often.- Diminutives: Some states hold that instruments identifying a party by a diminutive name (Bob instead of Robert) or middle name gives constructive notice.- Maiden names – no examples, but comes up pretty often. Skelton v. Martin (FL Dist.Ct.App.1996): Lack of adequate notice from the computerized record system does not deprive a subsequent purchaser of notice if the computerized system is not an official recording system subject to statutory regulation that requires it to be updated and accurate.

Exclusions from the Recording Act

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Recording does not protect a subsequent purchaser against prior interests that have arisen by operation of law (dower rights, prescriptive and implied easements, title by adverse possession). Mugaas v. Smith (WA 1949): Establishes rule that an unrecorded title by adverse possession are not within the recording acts and supercede the title conveyed to s. If unrecorded titles were to supercede titles matured under the statute of limitations, then adverse possessors would have no right at all to the land which cannot be right. Thus, there are certain types of titles (those that arise by operation of the law) that do not fall under the auspices of the recording acts.- Encourages purchasers to inspect the property before purchasing it.Mountain States Telephone and Telegraph Co. v. Kelton (AZ 1955): had easement for right of awy of installing and maintaining underground conduit for telephone and telegraph cables. , contractor for landowner, came in to clear the land and harmed the cables. Ct finds that was not bound by constructive notice of recording to respect ’s easement because had no vested interest to search the records for the ’s easement and had no interest of title, and thus the recording was not constructive notice to him.

TORRENS REGISTRATION – Alternative to regular recording system. 10 states authorize it and 40-45% of the land in those states is registered under Torrens system.- Property recorded under the Torrens system is government certified and is considered “registered property.” If the recorded title isn’t valid, the government is liable for damages to the injured interest owner. However, property stays with the person registered. To bring a parcel of land under the Torrens system, owner files quiet-title like action before a court. Owner is required to identify and notify all possible claimants to the property of the proceeding. Some states allow nonjudicial registration if the title is uncontested.- Torrens certificate shows: owner, land, owner’s estate, liens and other interests affecting property title, and all subsequent transactions affecting the title- State of title can simply be determined by looking at the registrar’s certificate of title.- Initial registration is expensive. Costs $2000-3000.- Difficult system to administer- Although individuals are entitled to recover from the Torrens system, the claims are slow to be paid and sometimes states have insufficient funds.- If there is no ambiguity in the certificate’s legal boundaries, the land cannot be lost through adverse possession.

TITLE INSURANCE: Insures against the risk that the title to the property is different than the title described in the insurance policy. Sometime also insures against additional risks. E.g., lack of access to property or unmarketability of title.Two types:- Owner’s policy: Indemnifies owner against defects. Indemnifies against loss caused by a title defect or encumbrance not listed as an exception or exclusion to the policy. Not transferable- Loan policy: Insures a lender that holds a mortgage, deed of trust, or similar security interest. Does not provide any protection for owner. Indemnifies against loss caused by a title defect or encumbrance not listed as an exception or exclusion to the policy. Insures validity and priority of security interest. Transferable to a purchaser of the security interest.Title is usually examined by private attorney or a company employee- Private attorney: Prepares abstract of record to title insurance company. Gives owner an opinion about the title. Lawyer stays in the picture as title examiner.- Company employee: Company maintains duplicate records of those in the county recording office. Carry out independent search. Eliminates lawyer from the process.Insurance company issues a title commitment, or a title binder, which describes the current state of the title and the exceptions to coverage which will be included in the insurance policy.- Might be unique to the property, e.g., mortgages, easements, title encumbrances

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- Might be common exceptions, e.g., mechanic’s lienBuyer may notify seller of any defects in the title, and seller may be obligated to correct any defect in the title.Premium based on:- Cost of examining title to the property- Risk associated with insuring the titleSwanson v. Safeco Title Insurance Co. (AZ Ct.App.1995): bought land and purchased title insurance from . The title search did not show the Jenkinson lien. When went to refinance his property, the title report showed the Jenkinson lien. A title insurance company can be liable for the loss in the value of the property due to the undiscovered lien, and the insured’s loss, if any, is the difference between the fair market value of the property if no impairment existed and the fair market value of the property with the impairment. Damages are measured when the defect is discovered.Greenberg v. Stewart Title Guaranty Co. (WI 1992): A title insurance company is not liable in tort for failure to discover a title defect. Such liability only exists in contract.

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IV. ESTATES IN LAND

A. The Fee Simple

1. Definition: An estate in fee simple is the largest estate known to the law; it denotes the maximum of legal ownership, the greatest possible aggregate of rights, powers, privileges and immunities which a person may have in land. “To B and his heirs” indicates that B was given an estate in fee simple. B’s heirs took no interest by virtue of the gift. “and his heirs” were words of limitation, not words of purchase. Words of limitation are those marking or defining the quantum of interest given to the grantee. Words of purchase indicate him who takes. A purchaser is any person acquiring an estate in any way other than by descent. NOTE, “to B forever”, or “to B and his assigns” or “to B in fee simple” gave B a life estate and not a fee simple.

2. Note: Has potential to endure forever. No limitations on inheritability. Cannot be divested. Will not end at some event. Still subject to mortgages, easements, etc.

3. The Creation and Characteristics of a Fee Simple

a. Rights of Owner: Use, abuse, exclusive possession, take the fruits of the land, dispose of land by will or deed.

b. The Rule Against Repugnancy: If a fee simple in land or an absolute interest in personal property is given to one person together with a general power of disposal by deed or will, a gift over to another person of what remains undisposed of on the death of the first taker is void on the alleged ground that the gift over is REPUGNANT to and inconsistent with the interest first given.

(1) Example: O to A and A’s heirs, then to B in fee. What does B get? NOTHING, because if contradicts O to A and A’s heirs which gives a fee simple absolute to A.

c. Transferor Cannot Create A New Kind of Inheritance: A fee simple is an estate of general inheritance and a transferor can’t create a new kind of inheritance. Thus, if A devises land “to B and her heirs on her fathers side,” B takes an estate in fee simple absolute and the attempt to restrict the descent to the paternal side is ineffective. See Johnson v. Whiton.

d. Restraints on Alienability are void.

(1) Bank of Powhattan v. Rooney: D. was in debt since before 1922. D didn’t have any money. In 1936, P inherited an estate, in which the testator restricted the ability of his beneficiaries to sell their interest in the land until 3 years after his death – although they could sell it to each other. Held: Although the restraint on alienation was only partial (for 3 years), the court ruled a partial restraint is just as bad as a regular restraint.

(2) Estate of Elizabeth Beck: Elizabeth Beck gave, in her will a ¼ interest in her estate to her step-daughter, upon the condition that they money, while in the hand of Elizabeth’s executor, should not go to the creditors of her step-daughter, but should be paid directly to the daughter. Was this a restraint on alienation? NO, the testator had a right to do what she willed in this case.

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(a) Example: O to T in trust for A and A’s heirs. A may not alienate. This is o.k./enforceable under the Beck case because of the insertion of the trust.

(3) Difference Between Elizabeth Beck and Powhattan: In Powhattan, the restraint was void, in Elizabeth Beck, it was not. Why? If you have a trustee, you can restrict alienation where you couldn’t by simply saying a restriction in the will. Note a spendthrift trust: permits the creation of interests in real and personal property that are not alienable or reachable by the creditors of the person holding the beneficial interests. By setting up a spendthrift trust, you immunize the spendthrift by claims of the spendthrift’s creditors.

4. The Defeasible Fee Simple

a. The Fee Simple Determinable: is limited to expire automatically upon the happening or non-happening of an event stated in the conveyance or will creating the estate. Thus, A owning land is fee simple absolute conveys to B “to have and to hold to B and his heirs so long as the land is used for residential purposes and when the land is no longer so sues, it shall revert to A and his heirs.” Note, the estate granted is a fee because it is generally inheritable and it may last forever. It is determinable because it will expire on the non-occurrence of the stated contingency, namely the use of the land for residential purposes. Note also, the traditional language used to create this estate includes “to A so long as…” or “to A until…”, or language providing that upon the happening of a stated event, the land is to revert to the grantor.

(1) Peters v. East Penn Township: Ps ancestors in 1893, conveyed the property in question to the D school district. The habendum clause of the deed stated that the school district could use the land “so long” as it used it for public school purposes. The property is no longer used for school purposes and the school district hopes to sell the property. The P. contends that since the property is no longer used for the stated purpose, the land was reverted. Held for P. Even thought the deed noes not contain a reverted clause, the words “as long as” have a greater significance than the introduction of a statement of purpose. “As long as” imposes a limitation, which is directly connected with the declared purpose of the grant. Judgment for P. Lesson: words which merely express the purpose for which the conveyance is made are not considered words of limitation on the title.

b. The Fee Simple Subject to Condition Subsequent: This fee exists when the fee simple is subject to a power in the grantor to terminate the estate granted on the happening of a specified event. Thus, A conveys to B “to have and to hold to B and his heirs on the express condition that if the land shall not be used for residential purposes A or his heirs shall have a right to re-enter and possess the land of his former estate.” Note, the breach of the condition does not cause an automatic termination of the granted estate.

c. Difference Between Fee Simple Subject to Condition Subsequent and Fee Simple Determinable: The fee simple determinable automatically expires by force of the special limitation, contained in the instrument creating the estate, when the state contingency occurs. The fee simple on condition subsequent continues despite the breach of the specified condition until it is divested or cut short by the exercise by the grantor of his power to terminate. Note, Hemholz says there is a preference in the law for a fee on condition subsequent rather than fee simple

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determinable. Why? Because you are giving more if you give a fee upon condition subsequent – because you have to go and get it.

(1) Mountain Brow Lodge v. Toscano: D’s (now dead) conveyed to P. property and allowed for the land to revert back to the grantor if a) the land is not used by the grantee or b) in the even of sale or transfer by the grantee. The court rejects provision (a) which prohibits P. for selling or transferring the land under penalty of forfeiture – for this is an absolute restraint against alienation and is void. BUT, on the issue of if the land is not used by the grantee, the court concluded that the portion of the habendum clause relating to the land use, when construed as a whole and in light of the surrounding circumstances, created a fee subject to condition subsequent. Note, the court is probably trying to read from the totality of the circumstances what it is the Ds wanted. They wanted to have the option to get the property back.

B. The Fee Tail

1. Definition: The language “To B and the heirs of his body” created a fee tail. The estate would last so long as there were any lineal descendants of B and upon the failure of such issue the land would revert to the donor or his heirs. B, the tenant in tail, could convey the land to a third person but the transferee acquired only an estate for B’s life. A grant to a man and the heirs male of his body created a fee tail male. A grant to a man and the heirs female of his body created a fee tail female. A grant to a donee and the heirs of his body by a particular spouse was designated a fee tail special.

2. The Fee Tail in the United States: Most states have enacted legislation that abrogates a fee tail, and creates a statutory substitute.

a. Conversion to fee simple: The most common form of statute converts what would have been a fee tail at common law into a fee simple in the grantee or devisee. Thus, a limitation to “B and the heirs of his body” will give B a fee simple.

b. Convert to Life Estate: To B and the heirs of his body will give B a life estate and on B’s death his issue will take in fee simple.

c. Preserves the fee tail in the hands of the first taker; but converts it into a fee simple absolute in the hands of the lineal descendants: “to B and the heirs of his body” gives B an estate in fee tail for his life and on his death his children take in fee simple.

d. Preserves the fee tail but allows any taker to convert it into a fee simple by making an inter vivos conveyance of the property: Under this statutory scheme, a tenant in tail has the power to convey in fee simply by an ordinary deed and thereby bar the entail and all reversions, remainders or executory interests. A creditor of a tenant in tail in possession can, except in DE, subject the estate to his claim as though it were owned by the debtor in fee simple.

3. The Meaning of “Death Without Issue”/ Problems of Construction: When a will devises land “to B and his heirs but if B die without issue then to C and his heirs,” the words “die without issue” are ambiguous. They may mean that C is to take only when the whole line of B’s descendants (children, grandchildren, etc.) runs out, whenever that occurs (this is indefinite failure of issue). Or, they may mean that C is to take, if and only if, at the time of B’s death he leaves no issue surviving him (this is definite failure of issue.

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a. Indefinite Failure of Issue Construction: The language “to B and his heirs but if B die without issue then to C and his heirs,” means that B has a fee tail and C has a remainder in fee simple. Although in form the limitation to B and his heirs appears to give B a fee simple, the additional phrase “if he die without issue” cust down B’s interest to one which will last only as long as he has lineal descendants – a period which marks the duration of a fee tail. Thus, the indefinite failure of issue construction of the words “die without issue” gives the limitation the same legal effect as if it read “to B and the heirs of his body, then to C and his heirs. So, if the will is constructed under a indefinite failure of issue, we have a fee tail.

b. Definite Failure of Issue: The language “to B and his heirs but if B die without issue then to C and his heirs,”, with a definite failure of issue construction, are taken to mean failure of issue at the time of B’s death only. Then B has a fee simple subject to an executory interest in C. C will take only in the even that B dies leaving no lineal descendant surviving him. If B dies leaving a child, C will not take even if the child should die a month later leaving no issue.

C. The Life Estate

1. Definition: A tenant for life of a possesory estate has a right to the undisturbed possession of the land, and to the income and profits thereof. His use and enjoyment of the premises is limited by the law of waste, that is, he is under a duty to refrain from any act which will diminish the value of the reversion or the remainder. A life estate has the quality of alienability and the life tenant can convey his estate to a third person – but he cannot convey a greater estate than his own. Note also, the life tenant has a duty to the remainderman. E.g. A grants B’Acre to “B for life, with remainder to C’s heirs” B can’t buy the land – e.g. B can’t convert the life estate into a fee, because of the duty to the remainderman. See Tillman v. Richton Tie and Timber Co.

2. If not a life estate, what else could the language indicate

a. Thompson v. Baxter: P’s previous owner rented premises at issue to defendant. The lease contained a condition whereas the tenant, his heirs, executors and assignes could “have and hold” the premises during the time he wished to live in Albert Lea . P. wanted to eject defendant and contends that the lease created wither a tenancy at will, at sufferance, or from month to month

(1) Tenancy at Will: can be created by the express language of the K or by implication of law. Its chief characteristics are 1) uncertainty respecting the term and 2) the right of either party to terminate it by proper notice. The court rules such a lease is not a tenancy at will –its language does not expressly definite it as a tenancy at will and no such relation is implicit for the term is a specific duration (e.g. as long as D. wants to live in Albert Lea).

(2) Tenancy at Sufferance: arises where the tenant wrongfully holds over after the expiration of his term – where he has naked possession without right. The court rejects this because there has been no wrongful or unlawful holding over after the expiration of term.

(3) Tenancy from Month to Month: where no definite time is agreed upon and the rent is fixed at so much per month and is terminable at the expiration of any period for which rent has been paid. The Court rejects this as there was a time period.

(4) The Court Held: The lease under consideration embodies all the essential for a life tenancy. It contains the usual words of inheritance,

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necessary at common law. Lesson: where a grant is made subject to be defeated by a particular event and there is no limitation in point of time, it will be a grant of an estate for life, as much as if no such event had been contemplated.

3. The Issue of Waste:

a. Permissive Waste: permitting waste to occur – such as letting a roof rot. Under this type of waste, a life tenant is liable to the owner of the future interest. Note, in Smith v. Smith, the P., a remeainderman, after alleging that his sister, a life tenant, committed permissive waste (for failing to make necessary repairs on a house), seeks forfeiture. The court ruled that the p. is entitled to various remedies for relief but not forfeiture, for forfeiture of the life tenancy for the commission of waste is only enforced by statute. Other options open to the P. were receivership or partition.

b. Voluntary Waste: an affirmative action. If the life tenant voluntarily makes improvements he cannot call on the owner of the future interest to contribute to the cost.

c. Equitable Waste: A malicious action taken in order to harm the future interest.d. Innocent Waste: e.g. where a 3rd party invades the property and damages it. A

life tenant is under no duty to rebuild structures damaged or destroyed without his fault, or to make improvements. Similarly, if what damages/lays waste to property is an act of mother nature, the life tenant is under no duty to repair.

4. Exceptions to the Law of Waste

a. When the grantor gives the right to a life tenant without impeachment of waste.b. The Open Mine Doctrine: If B gives to A for like and A stumbles upon a mine, A

cannot explore further. But if the mine is open, then life tenant can continue to extract oil/mineral, etc.

c. Long-Term Lease: e.g. O to A for 999 years. A has equivilant of a fee. A probably can do waste because of the long length of the lease. This is a malleable doctrine

5. What else does the Law of Waste Apply To:

a. life estates: see aboveb. tenancy for term of years: e.g. O to A for 10 years. A has a duty to return

property unwastedc. co-tenancy: A and B own property as joint tenants. B is under an obligation to

A to avoid waste.d. Contracts to convey land: After K is signed, grantor has duty to purchaser.e. Fee Tails (sometimes): If deed states: “from A to B and heirs of B’s body

begotten by C” – this is a fee tail special. If C dies w/o issue, then B can be liable for waste because land will revert to A upon B’s death.

6. Illustrative Cases on Waste:

a. Brokaw v. Fairchild: P’s predecessor built mansion on 5th Ave. P. wants to convert property to apartment building – P claims this in the only way to get return on investment because of changed conditions. D. contends this demolition is waste. HELD: Since the life estate shall pass to the remainder as unimpaired as possible, the demolish of the building, even if it is considered an improvement would be an exercise of an act of ownership.

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b. Melms v. Pabst Brewing: In this case, unlike the house in Browkaw, the house was “isolated and alone” and there was a “complete change of conditions” in the surrounding conditions (residential to factory). The complete change in circumstances allowed the court to allow the amelorating waste.

c. New York & W.R. Co. v. Livingston: Defendants great uncle devised a life estate to the defendant’s father, with remainder in fee to him. Following death of testator, life tenant conveyed the land in question to a Morss and Morrs’ heirs and assigns, covenanting that life tenant’s discussion shall be estopped from claiming any title to this land. Morss then conveyed to D./RR, which then imporved land 45K by laying tracks. P. then seeks to recover cost of land (rr. Could seize via eminent domain). Does the rr have to pay the cost with the improvements. HELD: when a wrongful ocupant has entered innocently and lawfully, just compensation does not exact the addition of the value of the improvements to the value of the land. Nugget: The Livingston case is a limitation on the rule found in Brokaw, as this case is representative of a small window of cases where an improvement of the land (e.g. waste) will not be a liability. If the life tenant improves the premises believing in good faith that the fee belongs to him. Note however, if the remainderman had sought an injunction before the tracks were laid, he probably would have gotten it.

d. Query: If life tenant greatly approves land, can the life tenant seek money from the remainderman? NO. If B chooses to build apartment building w/out C’s consent, C will not be forced to pay. You can’t pay for a benefit thrust upon you.

D. Marital Estates

1. Iure Uxoris (the right of a wife): Historically, during a wife’s lifetime, her husband had right to control of property to which she held legal title under the right of iure uxoris. This right allowed him to alienate the property during the marriage, even without her consent.

2. At Common Law

a. Early common law gave the surviving spouse a life estate in the other’s property.

b. Curtesy: At common law, a widower was entitled to a life estate in any lands the wife held in fee simple or fee tail during the marriage, provided a child had been born alive to them during their marriage.

c. Dower: At common law, a widow was entitled to a 1/3 share of the lands of which the husband had been seised of an estate of inheritance (e.g., not a life estate) at any time during their marriage. Note, dower attaches to the land the moment the husband is seised during the marriage. Until the husband dies, dower is inchoate – a word indicating that the wife has an interest been realized. Dower effects only land. Note also, no conveyance by the husband, even to a bona fide purchaser for value, would be effective to defeat the wife’s right to dower, nor could creditors of the husband impair her right. E.G. A conveys G’Acre to B and B’s heirs; B conveys G’Acre to C and C’s heirs. Does B’s widow have dower while C has fee simple. YES! A widow was entitled to a 1/3 estate in any lands which the husband had been seised of an estate of inheritance at any time during the marriage.

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d. Curtsey and Dower Compared: E.G. A conveys B’Acre to “B and heirs of B’s body” during marriage. B/husband dies w/out issue; so land will go back to A and A’s heirs, but common law says dower will attach here. BUT NOTE, if B was a woman/wife, leaving widower, curtesy will not attach to land because no child has been born.

e. These rights can be released if the husband or wife signs the deed to release them.

f. Divorce ends these rights.

g. Melenky v. Melen: Reuben Melenky conveyed the land in question to his son, Asher Melen. The deed was conveyed sot the son would manage the property and the conveyance was coupled with an oral promise to re-convey upon demand. Four years later, Melanky’s wife (and P. in this case) asked D. for re-conveyance. The son conveyed an estate for life, but refused to convey the fee. The P. claims the D/son is depriving P. of her inchoate right of dower. HELD: Dower attaches not to a chose in action (i.e. an obligation or right to reclaim) but to estates. Thus, since the grantor has not enforced his chose in action, has no fee and the wife cannot enforce it.

(1) Seizen in Deed v. Seizen in Law: In Melanky, Cardozo declares “seizen there is non either ‘in deed’ or ‘in law.’ Normally if a person enters into a K to purchase, he has “seizen in law.” The buyer has seizein in law, even though he doesn’t have seizin in deed. The common law says seizin in law is enough for dower to attach. NOTE, Melanky would have come out differently if the promise to re-convey had been in writing, rather than an oral promise. If the promise been in writing, the statute of uses would have come into play. Under the statute of uses, where one person is seized to the benefit of another, that other has seizin in the law. E.G. If Father conveys to son and heirs subject to re-conveyance (in writing), the son would have a fee simple and legal title, but the father would have seizin in the law. SO, in this case, father would be seized of an estate in inheritance and have seizin and law and thus dower could attach.

3. Statutory Modifications: Dower and curtesy continue to exist to the extent the common law relating to them has not been changed. However, they have both been amended, or indeed replaced, in many American jurisdictions. Among the most common changes in the common law’s regime are the following

a. making the surviving spouse an heir upon intestacyb. widening coverage to include both personal and real propertyc. equalizing the rights of husband and wife (usually to allow a 1/3 share)d. restricting the property subject to them to that held at deathe. changing the estate taken from a life estate to a fee simple interest in a

percentage (usually 1/3) of the decedent’s estate andf. giving the surviving spouse an election to take under the will fo the first to die,

or to take a statutory share as the decedent’s heir.

4. Community Property: goes beyond the system of spousal protection found in the common law. It rests on notion that husband and wife are a marital partnership – that both contribute to the material success of the marriage, and that both should share equally in material acquisitions. Community property consists of earnings of either spouse during marriage and property acquired prior to the marriage and property acquired by

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inheritance, devise or gift during the marriage remains the separate property of each spouse. Community property regimes prevail in 8 states. According to the accepted rule, property acquired under a community property regime retains that character, even if the couple moves to a common law state (and vice versa).

a. Kesslers Estate: Decedent and his wife lived in CA where decedent acquired the stock in question. The stock remained in his possession and control until he died, in Ohio – where he and his wife had lived prior to the decedents death. The widow contends that ½ of the amount of stock acquired in CA is community property, of which she had acquired a vested ownership interest in ½ of the community property while in CA. The Ohio Tax Commissioner contends that even in CA, the wife more than a mere expectancy in the community property but less than outright ownership until the dissolution of the marriage. The state contends therefore that her interest is taxable. HELD FOR THE STATE. By virtue of the death of the husband, the wife acquired the full and complete enjoyment of ½ of the shares of the stock acquired as community property in CA totally divested of the many restrictions and contingencies which had therefore diluted here vested interest in that property. So widow’s acquisition of ½ of the amount of shares is a taxable succession.

E. Concurrent Estates

1. Joint Tenancy

a. Definition: is a form of concurrent ownership, wherein each co-tenant owns an undivided share of property (as in tenancy in common), and the surviving co-tenant has the right to the whole estate. A joint tenancy can be severed w/o the consent of the other party [but in today’s world the property is usually sold]

(1) The right of survivorship is the distinctive feature of the joint tenancy. On the death of one of the joint tenants his interest does not descend to his heirs or pass under his will; the entire ownership remains in the surviving joint tenants. The interest of the deceased joint tenant disappears and the whole estate continues in the surviving tenants or tenant. There is no limit on the number of persons who can hold together as joint tenants.

(2) The Four Unities Requirement: Joint tenancies require the Four Unities: Title (all joint tenants must acquire title by the same instrument or by joint adverse possession); Time (the interest of all joint tenants must be acquired at the same time); Interest (the shares of all joint tenants must be equal, undivided and identical in duration).

(3) Severing a Joint Tenancy: A joint tenant may freely alienate his interest in the jointly held property and such a transfer creates a severance of the joint tenancy. E.G. If A and B are joint tenants and A conveys his interest to a third person the joint tenancy comes to an end and the transferee/3rd party and B hold as tenants in common. Why? Because the transfer destroys the unities of title and of time, since the transferee acquires his interest by a different title and at a different time than did B. Note, if A,B, and C are joint tenants and A conveys his interest to a 3rd person, B and C remain joint tenants w/ respect to an undivided 2/3 interest. Note also, joint tenants can’t agree that they each wont sever. This is invalid; its like a restraint on alienation.

2. Tenancy in Common

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a. Definition: Is a form of concurrent ownership wherein each co-tenant is the owner of a separate and distinct share of the property which has not been divided among the co-tenants. Each owner has a separate, undivided interest in the whole.

(1) No Survivorship Right: When a tenant in common dies, her interest passes on to her devises or heirs. It does not go to the surviving tenant in common.

(2) Right of Possession and Enjoyment: Each co-tenant has the right to possession and enjoyment of the property. The only unity essential to a tenancy in common is the unity of possession.

(3) Duty of Co-Tenant to Co-Tenant: Where one co-tenant received rent for the land from a 3rd person, that co-tenant must accounty to the others for their share (the Statute of Anne). Also, an action for waste has been available to co-tenants out of possession.

3. Coparcency: governed where two or more female descendants inherited land, normally where no male descendants survived. It became obsolete with the end of the sustem of primogeniture.

4. Tenancy by the Entirety: Can only exist between man and wife. They hold as one person and (unlike the estates in dower and curtesy), the surviving spouse takes the whole upon the death of the other. Although husband and wife, acting together, can sever the tenancy by the entirety, neither acting alone can do so.

5. The Creation of Concurrent Tenancies:

a. Camp v. Camp: D. and her son were granted a deed to land “as tenants in common with the right of survivorship as at common law.” The son married the P. and later died. P. sees judgment that the property was conveyed to the son and to the mother as tenants in common and that she and her children were therefore entitled to a ½ interest in the property. D. maintains that she was a joint tenant under the deed and the she has a right of survivorship and therefore a fee simple in the property. HELD FOR P. Since “tenant in common” comes before “w/ right of survivorship,” the first portion controls and the mother and son were conveyed the property as tenants in common. LESSON: Where 2 clauses are irreconcilably repugnant in a deed, the first prevails.

6. The Termination of Concurrent Tenancies:

a. Riddle v. Harmon: Mr. and Mrs. Riddle owned land as joint tenants. Several months before her death, Mrs. Riddle, in hopes of terminating the joint tenancy, granted to herself, and undivided ½ interest in the subject property. 20 days later she died. Issue: Can one be both grantor and grantee when conveying to oneself a ½ interest in property so as to terminate a joint tenancy? Was a strawman necessary to terminate a joint tenancy? The court rejects the common law rule that one could not create a joint tenancy in himself and another by a direct conveyance and ruled that one joint tenant may unilaterally sever the joint tenancy w/o the use of an intermediary device, such as a strawman, and thus convey to himself as a tenant in common.

(1) Hemholz on Riddle v. Harmon: There was no need for the attorney to not use a strawman. All Mrs. Riddle would have to do was to grant to a strawman (someone in attorney’s office) who would then grant back to Mrs. Riddle as a co-tenant.

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(2) Security of Title Issues in Riddle v. Harmon: Suppose after Mrs. Riddle’s death, Mr. Harmon, who thought he had the whole property as a right of survivorship to a joint tenancy, conveyed the whole property. This is why Hemholz thinks the case was wrongly decided. But an objection to Helmholz’s objection is that 1) a lawyer’s grant can be recorded and 2) a strawman conveyance can be equally secretive.

b. Allison v. Powell: P. decedent and D husband and wife owned property in question as joint tenants with right of survivorship. In July ’81, P. filed a complaint seeking to obtain partition of the real estate. The complaint was not served until March’82 and P had died in January ’82. P’s executor alleges that property was severed. HELD: w/o an enforceable agreement, and with only evidence of continuing negotiations, the parties had not placed themselves in a position from which they could not retreat. Thus, if a joint tenant dies during the pendency of the action to partition title to the jointly owned real estate, the estate passes by right of survivorhsip to the surviving joint tenant. Lesson: the commencement of a partition action is alone insufficient to sever a joint tenancy. A sufficient manifestation that the actor is unable to retreat from the position of creating aseverance of the joint tenancy is needed.

F. Reversions, Reverters and Powers of Termination

1. Definition of Reversion: A reversion is the “residue of an estate left in the grantor, to commence in possession after the determination of some particular estate granted out by him.” Note, a person having a lesser estate than a fee simple will upon the transfer of an estate smaller than his own have a reversion.

a. Examples:

(1) If A, owner in fee simple, transfers to B in fee simple: No reversion since B’s fee simple represents totality of ownership.

(2) If A transfers to B for life or in fee tail: A has a reversion in fee simple(3) If A devises land to B for life, and no further disposition of the land is

contained in the will: A has a reversion in fee.(4) If A devises to B for life remainder to C in fee: B has a VESTED

REMAINDER (see section G). C will get it whether he is alive or not (if not, to his heirs; if intestate, the property escheats to the government): NO REVERSION INTEREST IN A here.

2. Definition of Reverter: A possibility of reverter is the interest left in a transferor who cerates a fee simple determinable. (Remember: a fee simple determinable is a fee simple limited to expire on the occurrence or non-occurrence of an event specified in the creating instrument). Example: A owner of B’acre in fee simple absolute conveys it “to B and his heirs so long as Brookline remains a town, and if Brookline becomes a city then the said remises shall revert to A and his heirs.” B. has a fee simple determinable; A has the possibility of reverter. If the town becomes a city, B’s estate expires automatically and A becomes the owner in fee simple.

3. Right of Entry for Condition Broken: is a future interest created in a transferor who conveys an estate on condition subsequent. It can be created only in the transferor or his successors in interest, never in a third person (see Village of Peoria Heights below). This right of reentry is a power to terminate the granted estate on breach of the specified condition. On breach of the condition, the transferor can elect to terminate the granted estate or not as he pleases.

4. Illustrative Cases and Rules

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a. Village of Peoria Heights v. Keithley: A Mr. Gilbert conveyed a his property in fee simple upon condition subsequent to P/town, on condition that the property be used for a public nature. Gilbert then conveyed his present and future interest to D./Keithley. Can Keithley exercise power to terminate for failure to meet condition? NO. The Court HELD that Keithley had no title because at the time Gilbert executed his deed to Keithley Gilbert had no interest in the premise capable of being assigned or conveyed. LESSON: a breach of the condition can be taken advantage of only by the grantor or his heirs. The grantee (Keithley in this case) acquires no right to enforce a forfeiture. Why does the law do this? to protect grantors from themselves.

b. Trustees of Calvary Presbyterian Church v. Putnam: 66 years before this case,

D’s conveyed to P land on condition that it be used for religious purposes, and providing that P and their heirs could re-enter and take possession upon breach (thus conveying a fee simple on condition subsequent with right of re-entry for condition broken). 35 years ago, all of P’s heirs gave a quit claim deed covenenting that, upon breach, P’s heirs would not seek to enforce the condition of the original deed. P. now seeks a declaratory judgment re: its title and the rights of P’s heirs. Court ruled for P. LESSON #1: The policy of the law encourages the release of remote contingent rights in an estate to parties already possessed of some substantial estate(in this case substantial estate = fee simple upon condition subsequent). LESSON #2: No rule of law is invoked which would tend to prevent the living heirs, prior to a breach, from waiving a right or a possible right of which they could thereafter divest themselves.

c. Why the difference in outcome between Keithly and Putnam: The law is clear: a release (Putnam) is treated differently than a conveyance (Keithley). Note, in Putnam, the court rules “in respect to remote contingent rights in an estate, the policy of the law encourages their release to parties already possessed of some substantial estate.” EXAMPLE: O to A on a fee on condition subsequent. O dies leaving X,Y,Z. Under the Putnam case, X,Y,Z can release to A.

d. Long v. Long

G. Remainders

H. The Statute of Uses and Executory Interests

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