property petherbridge (2008)

8/11/2019 PROPERTY Petherbridge (2008)

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Theories of Property

o Property as a bundle of rights

How does one acquire property rights?

Why would society want to recognize property rights?

What kind of things can you have property rights in? chattel, P, intangible, land

!undle of rights use, possession, exclusion, disposition

Theory of "ccupancy# !lackstone descriptive approach to property rights

o !efore, there was no scarcity and so first to occupy had right to possession generally thereis a rivalrous use of property recognition of rights preserves peace and order in society

o $a%e about to resolve transient rights so that efforts could be put towards %ore efficient

use&o $hannels people's econo%ic efforts to %ore productive avenues

(abor Theory of Property ) (ocke nor%ative approach to property rights

o *an has a funda%ental right in his body&

o That which his body produces is his property

o +unda%ental proble%# Who owns the product when the raw %aterials co%e fro% one %an

and the other uses his labor to create so%ething fro% the%?

%ake soup, fro% %y own to%atoes and pour it into the ocean do now own a partof the ocean?

*oore v& egents

-tilitarianis% !entha% the foundation of %odern Property (aw

o Property rights function to %a.i%ize the benefits of property use and productivity in the

%arket for the greater social goodo /e%setz utilitarianis% property rights co%e into e.istence when it beco%es econo%ical

beneficial to do so Property rights function to internalize e.ternalities to %ake the %ost efficient use of

resources 0land1 %ore efficient use of resources lowers transaction costs

2.ternality an effect of an action that is not accounted for can be positive ornegative

own a lot of land with lots of trees on it& *y neighbors benefits fro% the clea

air produced by having so %any trees on %y property own a leather production plant and live ne.t to a river& The che%icals that

use to produce leather run into the river and pollute the water 2.ternalities beco%e internalized when the cost of the e.ternalities outweigh

the cost of internalizing the% Tragedy of the co%%ons when e.ternalities are not internalized

3buse of resources since everyone has an equal right to the property,

everyone can do what they want with the property, even if eventually to thedetri%ent of all

High transactional costs everyone has to put in too %uch to control the

behavior of others with respect to the property Tragedy of the 3nti)$o%%ons co%plete co%part%entalization of the property such

that it is difficult to obtain all the co%ponents necessary to be productive High transaction costs

$an lead to e.ploitation


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What we can have property rights in

Rule of Capture# +irst in ti%e applies to wild ani%als and fugitive resources and to chattel in

general 0first to capture a dollar found in the street1o 3 person has rights to a wild ani%al if they are the first to kill, %ortally wound and not

abandon pursuit, or capture it to per%anently deprive it of its physical liberty or rendering

escape i%possibleo /issent# first to pursue with reasonable likelihood of capture

o Tension# what is better# a certain or uncertain rule? $ertain ule# ) provides clarity, lowers transaction costs and provides for efficient use

of 4udicial resources because less cases to go to court, unifor%ity -ncertain ule# allows for variation, e.ceptions, different circu%stances so that 4ustic

is better served& 5o%eti%es better to be right than certaino 2.ceptions to the ule of $apture# the law tends to pro%ote productive behaviors and use o

resources /octrine of constructive possession# of a wild ani%al is on a person's property, it is

constructively the property of that person& 3 taking of that ani%al on that person's

property constitutes a trespass 61 on the person's land and 71 on the personal

property of the person 0the ani%al1 5uch rights are relative if the ani%al is on ('s land and T trespasses to obtai

the ani%al, then T6 trespasses on T's land to obtain the ani%al, T's right to the

ani%al is superior to T6 and ('s right is superior to T and T6 Animus Revertendi if you do%esticate an ani%al such that the ani%al can no

longer function in its wild state, then you have gained the right to possession of that

ani%al and are provided recourse if such right is endangered pro%otes husbandry Importers Protection#if you i%port a wild, e.otic ani%al, not native to that location

and i%possible to do%esticate, you have a right to possession of that ani%alo +ugitive esources "il 8 9as apply the rule of capture such that first to access is first to

posses& f "il or 9as lie beneath the surface of 7 people's land, both have a right to that which

they can e.tract fro% under their respective lands f the "il or 9as travels such that it longer rests under your land, you no longer have

rights to it& +ugitive resources in the land are part of the real property& "nce it is e.tracted, it

beco%es the personal property of the owner

Acquisition by Creation

o Copyrights copyrights subsist in original works of authorship fi.ed in any tangible %ediu%

of e.pression, now known or later developed fro% which they can be perceived, reproduced

or otherwise co%%unicated, either directly or with the aid of a %achine or device& n no cas

does copyright protection for an original work of authorship e.tend to any idea, procedure,

process, syste%, %ethod of operation, concept, principle, or discovery, regardless of the

for% in which it is described, e.plained, illustrated, or e%bodied in such work& Property rights are relative, not absolute and can shift, depending on the

relationship and context :5 v 3P

Rule of first possession# when property is attained through labor, e.pense

and organization for the purpose of sale, it beco%es property and rights to tha


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Process process, art or %ethod, and includes a new use of a known process,

%achine, %anufacture or co%position of %atter or %aterial %e!, useful, non&obvious

Why is this protected?

Pro%ote the arts, creativity, innovation to pro%ote the creation of that for

which there would otherwise be no incentive to create, enriches the co%%una

co%%ons, encourages copying and i%prove%ent

Pro%otes co%%ercial activity 'ay lead to tragedy of the Anti&Commons brings a slight inefficiency to

the syste% puts li%its on the process, deterrent costs of licensing,

per%ission, increases transaction and negotiation costs (urther highlights the relative nature of property rights

9ives a right of e.clusion not a positive, but negative right $ases

5 P3T2:T3!(2

o /ia%ond v& $hakrabarty 4ustifies the biotechnology industry 9enetically engineers a bacteria that can break down crude oil

5tatute should be interpreted broadly to protect 3:= new anduseful process, %achine, %anufacture or co%position of %atter

$ongress intended a vague definition, understanding that

new technologies would co%e about 2stablishes definitions#

'anufacture# the production of articles for use fro% raw o

prepared %aterials by giving to these %aterials new for%s

qualities, properties, or co%binations

Composition of matter# all co%positions of two or %ore

substances and all co%posite articles whether %i.ed

che%ically or %echanically 0gases, fluids, powders or

solids> $hakrabarty manufactures fro% raw %aterials 0plas%ids and

bacteria1 by giving the% a ne! formand properties through

hand)labor and by %achinery and has created a ne!

)composition of matter because the new bacteria is a

co%position of two or %ore substances& Through %anufacture,

$hakrabarty gives the bacteria qualities and properties it

!ould never have in its natural stateand he does this through

human&made manipulationand which has the potential forsignificant utility&o Parke)/avis v& *ulford pure adrenalin 4ustifies the phar%aceutical

industry $istinction of degree v* $istinction of "ind

The purification process created a substance so pure that

essentially, through %anufacture by %eans of hu%an)%ade

%anipulation, the substance acquired qualities and properties it

would never have in its natural state, having the potential for

significant utility


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o /ia%ond v& /iehr process of curing synthetic rubber While the separate co%ponents of the process are not patentabl

0for%ula law of nature, co%puter, te%perature gauge1 the

co%bination of these co%ponents used in a new, innovative, non

obvious methodis 5 :"T P3T2:T3!(2 ) +unk !ros 5eed $o& v& @alo noculant

o $o%bination of bacteria that is conducive to cultivation of legu%e

vegetableso While the co%bination was discovered, it is a natural occurring

co%bination and nothing has been done, no method or manufacture

or ne! composition of matterhas been used;created that gives the

bacteria qualities and properties it would not have in its natural stateo Trying to patent a law of nature si%ply by aggregating the bacteria

o Property in #nes Person *oore v& egents of -$(3 $ongressional intent re Patent protection is to foster ingenuity and creativity and

productivity in a %arket econo%y for the greater social good and that protection of

individuals with respect to what is taken fro% the% for that progress is protected by

fiduciary duty but that progress is so funda%ental to our society that the doctors' righto the tissue are preserved&

/octor's did not patent the cells but used a %ethod;%anufacture to create a new

co%position of %atter so funda%entally different that it no longer was the original cel 2stablishes property rights as a bundle of rights and that a right to property does no

always include all of the bundle right to use, possess, exclude, alienate

+ubsequent possession/Adverse Possession while it doesn't accrue until statutory period run

co%pletely, adverse possessor is recognized as owner fro% the first day of possession& "nce

statutory period runs, can quiet title in courto enerally does not apply against the govt*o enerally property is acquired through voluntary transfer

2le%ents# give notice to owner viewed fro% the lens of an owner of si%ilarly situated land 0rural

suburban, urban1o Actual and -xclusivePossession

%portant to the definition of what land the person actually possesses, what the

boundaries are :eeds to have enough possession to actually bring an action ensures the quality of

possession is such that it will trigger an action for the owner to kick you offo Continuous and uninterruptedfor the statutory period

5tatutory period doesn't begin to run until a P files action penalizes the owner fornonuse

/ifferent states have different statutory periods longer v& shorter?

(onger periods %ay deter people fro% trying to acquire land this way, prevents

unnecessary litigation, give the owner %ore ti%e to notice an adverse

possessor

5hort period prevents land fro% wasting by letting others co%e in and %ake

useful


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/efined as such possession as ordinarily %arks the conduct of owners in general in

holding, %anaging and caring for property of like nature and conditiono #pen and notorious gives notice ot true owner

o Claim of title/.ostile $onnecticut rule %akes the %ental state of the adverse possesso

irrelevant so long as they are acting like they are the true owner of the property To ensure that the person in actual possession isn't there with the per%ission of the

owner

Privity/tac"ing connection or relation between the 7 parties, each having a legally recognizedinterest in the sa%e sub4ect %atter 0voluntary transfer of interests1

o Privity of possession#privity between parties in successive possession of real property

o n order for adverse possessor to tack on previous adverse possessor, there %ust be a

privity of possession with so%e sort of legal relationship between the partieso Prevents successive trespass fro% constituting adverse possession 0there is no legal

relationship between parties Adverse Possession of Personal Property "'@eeffe v& 5nyder

o The traditional ele%ents of adverse possession, particularly that of being open and notoriou

is al%ost i%possible to fulfill with respect to chattel&

o Which standard to use? 5tatute of (i%itation starts when owner is dispossessed efficient, clear, but doesn't

do 4ustice :ew =ork ule 5"( does not start until owner de%ands return of chattel favors

the owner, provides %ore incentive to adverse possessor to clarify the title to propert

b;c otherwise, can be taken away up to A yrs fro% when the person de%ands it& $I+C#-R0 R12- 3default4# cause of action will not accrue until the in4ured party

discovers or by e.ercise of reasonable diligence and intelligence should have

discovered, facts which for% the basis of a cause of action against adverse possesso

5ince 5"( is intended to punish negligence on the part of the true owner and

pro%otes stability to hu%an affairs 0adverse possessor %ay not know it isproperty of another and unfairly punished after %any years of possession1

5hifts the burden to the owner to 4ustify the defer%ent of the start of 5"(

3chieves sa%e purpose as the ele%ents of adverse possession# to vest

ownership in adverse possessor against true owner who does not act diligently

in recovering possession

Privity rules apply

$isability Rule# statutes provide e.ception for disability ":(= + disability e.isted at ti%e of

accrualo Types of disabilities# %inor, %ental disease, prison

o $annot tack on disabilitieso Will get the longer ti%e period# either statutory period or ter%ination of disability plus B of

years deter%ined by statute $ases#

o


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not under color of title, did not sufficiently de%onstrate actual possession

because did not properly delineate boundaries of land clai%ing to possess and

did not substantially use all the land nor i%prove the property sufficiently 3s per testi%ony in previous law suit, acknowledged that the land wasn't his

when asked for ease%ent for passway /issent because (utz ca%e to adversely possess the land, cannot disclai% right to

land by oral disseisin, land was known as his by the co%%unity& 3lso, did have actua

and e.clusive possession because delineated the land 0trees;logs for border andnatural borders1 and the type of far%ing he did required hi% to rotate plots of land for

far%ing& The fact that he knew the property wasn't his didn't %ini%ize the fact that he

intended to acquire it as his own $olor of Title easier to establish adverse possession

o *anillo v& 9orski #pen 5 %otorious/Claim of 6itle +tate of 'ind of Adverse

Possessor 'aine $octrine adverse possession %ust be established by having intention to

clai% ownership of land adverse possessor knows belongs to another encourages lying, ad%inistratively challenging, sub4ective

%ay serve ot %ake honest people even %ore cautious and take e.tra steps to

ensure they are not encroaching on others' lands, therefore reduce such cases

in courts Connecticut $octrine the act of adverse possession is on its own, sufficient&

/oesn't %atter if the adverse possessor did so intentionally or by %istake& 'a7ority R12-

"b4ective, easier to ad%inister, doesn't reward the liers 8hat constitutes #pen and %otorious9 s the encroach%ent visible enough to give

P notice that such encroach%ent occurred?

When there is a %inor encroach%ent that is not open and notorious enough to

give owner notice of adverse possession#o f too costly to re%ove, either adverse possessors pays fair %arket valu

to owner for that land or owner will co%pensate adverse possessor for

re%oval of encroach%ento Howard v& @unto Continuous/Privity

$ontinuous although only used as a su%%er ho%e, constituted continuous

possession because used in a %anner appropriate for a property of such nature and

condition Privity e.isted because colored title was transferred successively between adverse

possessors therefore could tack on

Possessory -states

When deter%ining what type of property has been conveyed, %ust give effect to the grantors

intent and then fall bac" to rules of construction try to give the biggest estate that you can

that is consonant with the words of the docu%ent 0White v& !rown1o When interpreting grants of possessory estates and future interest, if there's a%biguity, give

the biggest estate you can give consistent with the estate owned by the grantor Conveying a property#

o 6ransferability# inter vivos transfer while alive


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o $evisability# $apable of transfer by will

o Inheritability# $apable of transfer by inheritance

hierarchy of inheritability# heirs deter%ined at ti%e of death, includes spouse

61 ssue direct descendants and spouse& f there are issue, take to the

e.clusion of all others 71 parents

C1 collaterals all related by blood who are neither issue nor parents

D1 25$H23T if no heirs, property escheats to the state 6ypes of -states

o (ee +imple theoretically last forever 0practically to the person and his heirs1 $an be conveyed in all C ways

o (inite -states al!ays follo!ed by a future interesteither as a reversionheld by

grantor or a remainderheld by anyone other than the grantor (ife 2state for the life ter% of a designated person can be the person to who% such

property interest is conveyed or for the life of another 0pur autre vie1 "nly transferable, cannot be devisable or inheritable because the interest dies

with the person

Ter% of =ears for a set, li%ited, defined period of ti%e $an be conveyed in all C ways

o (ee +imple $efeasibles has a future interest

in distinguishing between a +5/ and +55$5, %ust look to the transferor's intent and

the to construction principles 0*ahrenholz v& $ountry !oard of 5chool Trustees1 +ee 5i%ple $eterminable auto%atically ter%inates at the happening or

nonhappening of an event $reated by#

o The language of a fee si%ple

o (i%ited by language that shows intent to ter%inate auto%atically

o (anguage denotes durational aspect# Eso long as, while until duringunless>

+uture interest# possibility of reverter

$onveyable under all C +ee 5i%ple +ub7ect to Condition +ubsequent does not auto%atically ter%inate

but %ay be cut short or divested at the transferor's election when a stated condition

happens When language is a%biguous, the court will favor +55$5 over deter%inable

The language of a fee si%ple

(i%ited by language that creates a li%itation# Ebut if, provided that, provided

however, on the condition that> +uture interest# Right of re&entry/po!er of termination

o While the right e.ists, it is the responsibility of the grantor to e.ecute tha

right

:ot transferable (ee +imple +ub7ect to -xecutory 2imitation treated as either +55$5 or +5/ bu

future interest rests in so%eone other than the grantor

3uto%atically cuts the prior interest regardless of language

+uture interest# 2.ecutory nterest


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o 5pringing cuts off the possession of the grantor

o 5hifting cuts of the interest of so%eone other than the grantor

+uture nterests

$an be created in the transferor or a transferee#o n transferor#

eversion follows a finite estate

*ay be certain to beco%e possessory or contingent ight of re)entry;power of ter%ination ) +55$5

Possibility of reverter +5/

o n transferee#


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6& /eter%ine if 3P appliess it a contingent re%ainder, vested re%ainder sub4ect to partial divest%ent, ore.ecutory interest?

7& f yes, then can the given interest vest at so%e ti%e after the lives in being plus76 years?

C& f yes, then the re%ainder is invalid, it is crossed out and the interests arereclassified without the re%ainder included

o 3P refor%# %any states have %ediated 3P by#

$y Pres# refor%ation change the will to give effect to what the grantor wanted -53P wait and see approach see if it %ight vest anyway within the 76 years of

life in being

"r, so%e states 4ust give a FG year vesting period, void if not vested by then

Co!nership/Concurrent Interests

o Potential for 6ragedy of the Commons neither a 4oint tenant nor a tenant in co%%on ca

do any at all to the pre4udice of the cotenants in their estate Partition serves to sever co)tenancies so as to %ove in the direction of individualized

ownership

6enancy in Common separate, undivided shares of property where each owner has a distinctshare and the right to possess the entire property

o $onveyable through all C %ethods

o *a4ority rule is that when a%biguous court would favor a tenancy in co%%on over a 4oint

tenancyo :o survivorship

:oint 6enants 2ach owner has a distinct share but also owns an undivided whole and has the

right to possess the entire propertyo ight of survivorship avoids probate

"ne's interest is ter%inated upon death i%portant consequences for creditors

Har%s v& 5prague mortgage doesnt destroy the 7oint tenancy &lien disappearswith the death of the 4oint tenant

2ven though there was a default, because brother died, his interest in the

property e.tinguished and so lien did not hold

There %ust be an actual severance of 4oint tenancy, not the potential for such

severance a lien does not transfer title to the lien holder but %erely gives the

potential for such transfer

2ien theory in putting a lien on a property, a future interest is created but tha

future interest will not vest until death& 3t death, however, the interest is

e.tinguished and so there is no lien on the property b;c the future interest does

not holdo When giving a lien, you are not divested of title but only give so%eone

the right to divest you of title upon the happening of so%e future event,

default

Title theory by giving over a %ortgage, you're giving over a legal title

voluntary conveyance&o Therefore, 4oint tenancy is severed, beco%es a tenancy in co%%on and

lien re%ains attached to the share of the tenancy in co%%ono D unities


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Ti%e ) acquired or vest at the sa%e ti%e

Title by the sa%e instru%ent or by a 4oint adverse possession

nterest equal undivided shares

Possession %ust have right of possession of the whole

o oint tenants can be created even if the unity of Einterest> is not %et and property will be

divided according to the allocated share if it requires 4udicial partitiono 5everability of oint tenancy;so%e apply to tenancy in co%%on

3ny of the unities can be broken unilaterally and that, then, creates a tenancy inco%%on with the re%aining 4oint tenants

5traw%an, Trust %ethod, 4oint tenants agree to sever, declaration of election t

sever iddle v& Har%on didn't want husband to get her share as 4oint tenant so she

devised her share as 4oint tenant to herself as tenant in co%%ono $an conveying to yourself sever a 4oint tenancy? yes

o oint tenant can unilaterally convert a 4oint tenancy to a tenancy in

co%%on by conveying to one's self&o e%oves antiquated, sy%bolic procedure of using a straw %an

o "ne can create a 4oint tenancy by conveying to self and other partiessi%ultaneously

udicial Partition in kind or by sale

/efault partition is Ein kind> unless physically doesn't %ake sense and the best

interest of allco)tenants indicate partition by sale /elfino v&


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*inority discourages partition and %aintains split ownership

leading to the tragedy of the co%%ons

5wartzbaugh wife didn't want bo.ing facility lease on her land

o (ease doesn't destroy a 4oint tenancy there's always a way out

action for partitiono The 4oint tenant has the right to lease or %ortgage interest in property

even if the other tenant ob4ects& "ther 4oint tenant are entitled to a

portion of the rent& f other 4oint tenant is ousted, then can get fair%arket value for his share of the rent

2andlord/6enant

7 ways to think about it#

o 6emporal relationshipb;wn landlord and tenant for%ation to conclusion

o eneral increase in tenants rights over time

Types of (easeholds

o 6erms of 0ears a leasehold estate that is for a fi.ed ti%e period While fi.ed in ti%e, can be ter%inable earlier upon the happening of so%e event or

condition

equires no notice to bring the estate to an end b;c the estate is e.plicit in itster%ination date

o Periodic 6enancy for a period of so%e fi.ed duration that continues for renewed

succeeding period until either landlord or tenant gives notice of ter%inationo 6enancy at !ill no fi.ed period& 2ndures so long as both landlord and tenant desire

2nds when a party ter%inates the leasehold or at the death of one of the parties

f lease provides that it can be ter%inated by one party, then can also be ter%inated a

the will of the other party

easonable notice, unless e.plicit right to tenant ":(=

ules fro% cases

o 9arner v 9arrish tenancy shall continue Efor and during the ter% of quiet en4oy%ent fro%the first day of *ay 6FII which ter% will end 9errish has privilege of ter%inating this

agree%ent at the date of his own choice> rent was paid %onthly Rule of interpretation 9ive weight to the intent of the contracting parties if in line wit

%odern co%%on law here determinable life tenancy doctrine of fitting into th

box When a%biguity err in the direction of a periodic tenancy 0easier to get out of than

ter% of years1o Hannah delivery of possession

-nglish rule is the ma7ority rule covenant requiring lessor to put lessee in actual

possession 2specially in residential situations, lessee's e.pect to enter the dwelling on the

date when their right to possession begins

-nfair to place this burden on the lessee, who, had he known that it would be

inhabitable, would not have entered into the agree%ent (andlord is in a better position to deter%ine the availability of the space and

has %ore resources;%ore knowledgeable in such situations to deal with it

accordingly


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(andlord is %ore equipped to deal with such a situation and the loss of a

couple %onths rent is not as heavy a burden as to not have a place to live American rule lessor covenants to give lessee right to possession but should not

be held accountable for the wrongs of a C rdparty

'a"es rent cheaper if landlord is in fear of being responsible for layover

tenants and costs associated with evicting the%, will %ake rents higher to

cover those costs and the e%pty %onths

'ore efficient use of land if landlord has to ensure an e%pty space andloses a couple %onths rent for that, then wastes space and use of space

o 2rnst v& $onditt subleases/assignment 5 liability

nterpret the language of the contract by giving weight to the intent of the parties do

this by looking to what the parties are actually giving over 0here, gave over the entire

period of ti%e of the lease with no reversionary interest, therefore, was an assign%en

rather than a sublease1 Privity of estate v* privity of contract 7 legal relationships for% when entering int

a lease

Privity of estate< someone !ho has all interest for the specified period in

the property

Privity of contract< contractual rights and duties such that these duties

and rights are only binding on the parties to the contract

+ublease privity of contract and estate re%ain between lessor and original

lessee & no legal relationship through which to de%and rent;da%ages fro%

sublesseeo $an indirectly influence sublessee by evicting original lessee, essential

attacking the sublessee's possession through the original tenant

Assignment privity of contract re%ains between lessor and original lessee

0such that original lessee will still be bound by the contractual ter%s1 but privity

of estate transfer to assignee 0lessee can de%and rent;da%ages fro%

assignee through privity of estate and fro% lessee through privity of contract1o if there is a clause in the assign%ent stating Eassu%e all covenants in

the lease> landlord has no privity of contract with the assignee

subrogation when Crdparty co%es in, pays for the co%pensation and then

wants to be paid back 0( sues T, T sues T6 through subrogation1o @endall v& Pestana landlord restriction on right to sublease/assign

f lease is silent on (andlord's consent, tenant is free to do as they will free

alienability is a foundational concept in property

f the lease calls for the (andlord's consent and does not e.plicitly state that (andlordcan withhold consent at his discretion, a implied covenant of good faithto not

withhold consent unless commercially reasonablewill be read into the contract +ree alienability does not apply in residential setting

o !erg v& Wiley eviction of tenant not performing under the lease Abandonment< vacates without 4ustification, no intent to return, or defaults on rent

6raditional vie! self&help measures if

61 landlord is legally entitled to possession

71 landlord's reentry %ust be by peaceable %eans 'odern interpretation of P-AC-A;2- '-A%+


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(aw doesn't want to encourage people taking the law into their own hands,

particularly when the courts have set up a quick legal %eans to do so

f landlord uses self)help %easures, can lead to unlawful eviction, no due

process for tenant, lead to larger da%ages suit 3ny eviction that is not based in the law is not peaceable

Critique if landlord has to take legal %easures to evict tenants, rather than

self)help, will raise tenant rents in general to cover for costs

Critique under co%%on law, if unlawful eviction, tenant could get %uch %orin da%ages, lost profits, loss of chattel& -nder new rule, if tenant found in the

wrong, %ay have to pay da%ages to landlordo 5o%%er v& @ridel, iverview ealty Abandoned Possession landlords obligation to

mitigate damages 'a7ority rule in the event tenant abandons pre%ises, landlord is obligated to

%itigate da%ages through reasonable efforts to re)let the pre%ises

Takes into account efficiency of land use, don't want land to lay idle

*oves away fro% a property law perspective of leases to a contracts law

perspectiveo 3s a %atter of basic fairnesso *odern notions of fairness and equity

(andlord carries burden of proof that he used reasonable diligence in

atte%pting to re)let the pre%ises b;c in a better position to de%onstrate ito :eed not accept less than fair %arket value or substantially alter his

obligations as established in the pre)e.isting lease Common la! rule landlord under no obligation to %itigate da%ages

!ased on principal that lease conveys an interest to tenant in the property

which forcloses any control by the landlord no one has a right to interfere wit

the interest;possession of the property by the tenant so landlord couldn't

%itigate da%ages

(andlord should not be required to %ake up for another's wrongdoing

(andlord shouldn't be forced into a personal relationship with a new tenant he

does not wish to accept 3bandon%ent of property is an invitation to vandalis% and the law shouldn't

encourage such conduct +urrender offer of a settle%ent agree%ent, inviting acceptance on the part of the

landlord and thus ter%inating tenant's liability for future rent

3bandon%ent can constitute an i%plied offer of surrender

(andlord's actions inconsistent with to the continuation of the original lease caconstitute i%plied acceptance re)letting on behalf of tenant doesn't break tenant's obligation but the re)let %itigate

tenant's obligations&

f re)let for less tenant still liable for the difference

f re)let for %ore tenant %ay have a right to the difference

o este v& $ooper =uiet en7oyment and constructive eviction & leased business space

had repeated flooding due to faulty pave%ent Rule any act;o%ission of the landlord which renders the pre%ises substantially

unsuitable for the purpose for which they are leased, or which seriously interferes wit


15/35

the beneficial en4oy%ent of the pre%ises, is a breach of the covenant of quiet

en4oy%ent and constitutes a constructive eviction of the tenant Permanent intereference occurs regularly and frequently enough to prevent use

and en4oy%ent of the pre%ises for the purpose of the lease 2essee must vacate !ithin a reasonable time after being e.posed to a constructiv

eviction, otherwise constitutes a!aiver of the right to vacate "bligation to pay rent is dependent upon tenant's having possession undisturbed by

the landlord if one party breaches, the other party is no longer bound Partial eviction when part of the pre%ises is unusable tenant is not relieved of the

obligation to pay rento Hilder v 5t& Peter Illegal lease/Implied 8arranty of .abitability slumlords

Rule residential rental leases have an i%plied warranty that the landlord will deliver

over and %aintain, throughout the period of tenancy, pre%ises that are safe, clean

and fit for hu%an habitation Previously landlord's obligations to tenant were independent of tenant's rent

obligation to landlord breach of one didn't i%ply the other was not bound& :o longer viable view in %odern day urban society where tenant is not

e.perienced in perfor%ing %aintenance work on urban co%ple. living units anthere is a shortage of safe, decent housing & tenant is in an inferior bargaining

position To deter%ine a breach of warranty of habitability

61 look to violations of local;%unicipal housing codes

71 /oes clai%ed defect have i%pact on the safety;health of tenant

C1 Tenant %ust show that he;she notified landlord of deficiency and reasonable

ti%e for correction *easure of da%ages difference between value of the dwelling as warranted and

value of dwelling as it e.ists in its defective condition

$an withhold pay%ent of future rent switches burden of suit on landlord Punitive da%ages are available if willful and wanton violation

$an fi. proble% then sue for recovery

$an pay rent then sue to recover full rent

2and 6ransaction Inter ivos transfer

Process

o (ocating a buyer brokers listings

Proble%s can arise fro% the very beginning

!rokers paid J off purchase price incentive to push sale through

regardless of detri%ent to partieso :ot fully knowledgeable of the process so%e info gets lost along the

way buyers aren't fully aware or educated by the broker to %ake a

fully infor%ed decisiono $urrent %arket conditions are an indication ofr buyers not really

understanding;being properly e.plained the processo *itigating factor that brokers business relies heavily on reputation

o "ffer


16/35

o :egotiating the contract earnest %oney !'s conditions;counteroffers The $ontract detailed, with %any contingencies

-sually a for% contract b;c co%%on transaction that

sophisticated;unsophisticated parties do

$ontingency process is beneficial b;c allows unsophisticated parties to educat

the%selves and ensure they are properly protectedo n a highly co%petitive %arket, need to %ake decisions quickly, no ti%e

to properly inspect;ensure against encu%branceso 3gree%ent 0equitable title1

5tatute of +rauds real estate transactions %ust use a written instru%ent to

consu%%ate the transaction

*ust be in writing or no action will be brought

+orces parties to use caution

Provides evidence of the transaction

o 2.ceptions# Partial perfor%ance, 2quitable estoppels 3d%ission fro%

opposing party that there was a transaction Hickey v& 9reen oral agree%ent with check deposit induced

buyer to sell their other property, then seller backed down 5eller ad%itted to oral agree%ent but clai%ed didn't %atte

b;c oral 2quitable estoppel unconscionable in4ury will deter%ine

if a written contract will be forced on the parties 0could

buyers reneg on their other sale?1 if no unconscionable

in4ury, don't want to establish precedent for quick,

unreasonable reliance 2quitable $onversion equitable title attaches at ti%e of agree%ent unless

contracted otherwise all risk born by buyer 5ituation 6 enter into contract and then property severely da%aged buyer

owns real estate with all the da%ages and seller has clai% for %oney a%ount

deter%ined at ti%e of purchase

5ituation 7 enter into contract and then seller dies will separates real and

personal property buyer is equitable owner of property, seller only has a K

interest and is therefore personal propertyo 2.ecutor period inspections;disclosures;financing;title evaluation i%plied condition in

every sale of land contract that the seller will convey %arketable title *arketable title not sub4ect to reasonable doubt that would create apprehension in

%ind of buyer -n%arketable title ) if there is a reasonable probability the seller does not own

the full title alleged, the property is sub4ect to an undisclosed encu%brance, or

the purchaser bears an unreasonable risk he or she would be sub4ect to

litigation related to the property in its current condition&o f seller fails to clear title %ake title %arketable by closing date,

buyer has right to rescind contract -nless the seller cures any defect before the schedule closing date, a

purchaser can refuse to close and can rescind the sales contract if the title is

un%arketable&


17/35

o 2ncu%brances -ndisclosed co)owners

*ortgages or liens

2ase%ents

Private restrictions ) eal covenants or equitable servitudes wi

not %ake title un%arketable unless undisclosed or the property i

in violation

(eases "ptions

*ineral rights

+laws in the deed records

"wnership based on adverse possession colored title

o 9overn%ent ordinances or regulations seller does not have to disclos

these and they do not %ake title un%arketable -:(255 there is a violation

o n curing the defect, the buyer does not need to accept anything %ore o

less than what buyer contracted to buy

(oh%eyer v& !ower 7 story private covenant violation 8 C ftaway fro% boundary public ordinance violation

$aveat 2%ptor 8 /uty to /isclose /efects

*a4ority ule $aveat 2%ptor so long as seller does not %isrepresent

defects to the property nor actively %isleads purchaser, seller has no obligatio

to any infor%ation re property buyer bewareo 2.ception where seller creates the pheno%enon that %aterially

i%pairs the value of the property and it is particularly within her

knowledge or unlikely to be discovered by a prudent purchaser

e.ercising due care, nondisclosure constitutes a basis for rescission as

a %atter of equity 5ta%bovsky v& 3ckley ) haunted houseo +raud is not allowed under the doctrine %aterial %isrepresentation,

with the intent to %ake so%eone rely on it, and based on that

reasonable reliance, har% is caused&

*odern trend seller has a duty to disclose %aterial latent defects to the

property, but not i%%aterial or patent defects 0visible1 applies to residential

properties only, not co%%ercial ones b;c co%%ercial buyers are %ore

sophisticatedo *aterial test

"b4ective prong would a reasonable person attach i%portance

when deciding to buy 5ub4ective prong does the defect affect the value or desirability

of the property to the buyero 5o%e states require disclosure of off)site defects like noisy neighbors,

to.ic waste du%p, etco 5o%e states require disclosure of non)physical defects haunted,

so%eone was killed,o 5o%e states have stig%a statutes shielding sellers fro% a failure to

disclose psychological;pre4udicial factors that %ight affect %arket value


18/35

o $losing ! give lender note and %ortgage, lender give ! KK, ! gives 5 KK, 5 delivers

/eed;Trust /eed constitutes a %erger of all pro%ises %ade in the contract buyer can no

longer sue seller on any covenants not stated in the deed

2stoppels by deed if grantor conveys property without title but then

subsequently acquires title, title passes to purchaser by operation of law

auto%atically passes

C types#o 9eneral Warranty deed warrant title against 3(( defects in title, no

%atter when they ca%e into e.istence $ontains A e.press warranties

C present covenants

o *3"T= rule ) can only be breached at ti%e the

deed is delivered 5"( starts running at the date o

deliveryo *inority rule ) "nce there is a breach of a present

covenant, the clai% can be quietly assigned to

subsequent grantees as a conveyance is essentialan assign%ent of one's interest in a property

/a%ages L original purchase price fro%

original grantor to prior grantee plus interest

fro% the ti%e when final grantee received th

property ockafellor v& 9ray

o 61 $ovenant of 5eisin grantor warrants that he

owns the estateo 71 $ovenant of ight to $onvey grantor warrants

that he has the right to convey essentially sa%e

as that of 5eisino C1 $ovenant against 2ncu%brances grantor

warrants there are no encu%brances warrants

that title is %arketable and will re%ain so after

transfer

C future covenants will be breached at so%e ti%e in the

future not considered a breach until grantee;successor i

evicted fro% the property;buys up the para%ount

clai%;otherwise da%ages 5"( begins to run at ti%e of

eviction or when covenant is broken in the futureo 61 $ovenant of 9eneral Warranty grantor warran

that will defend against (3W+-( clai%s0including

his own through adverse possession1 and will

co%pensate grantee for any loss sustained by an

assertion of superior title f buyer knows of an encu%brance that

affects the title, the encu%brance will still be

treated as breach


19/35

"nly encu%brances that affect the land

which are patent are not included in the

warranty but those that are latent, that buye

does not know of, will be includedo 71 $ovenant of Muiet 2n4oy%ent grantor warrants

that grantee will not be disturbed in possession and

en4oy%ent of the property by assertion of superior

title essentially identical to the covenant ofgeneral warranty

!rown v& (ober !rowns receive land with

general warranty deed fro% so%eone who

has only 6;C %ineral rights try to sell but

find out about it& Technically a breach of

present covenant of right to convey;seisin b

5"( ran out tried to sue under $& of Muiet

2n4oy& =et Muiet 2n4oy& Was not 3$T-3((=

disturbed b;c not actually interfered with Holding good b;c gives incentive to clear

title proble%s, can run risk of 3P, can fin

owner and broker a dealo $ovenant of +urther 3ssurances grantor warrants

to e.ecute any other docu%ents to perfect the title

conveyedo 5pecial warranty deed warrants only against the grantor's own acts,

but not that of preceding owners still contains all A covenants, but onl

against conduct of grantoro Muitclai% deed contains :" W33:T25 of any kind conveys

whatever title grantor had, if any

+orged v& +raudulent deeds

o 3 +"92/ /22/ 5


20/35

deed take effect ":(= + ohn predeceases *aurice

evaporates upon property delivery, which there was hereo nstead, could have created a 4oint tenancy with

right of survivorshipo *aurice could have given hi%self a life estate with

springing future interest in +53 to ohn 3:/

ntent by grantor to divest hi%self of the conveyed interest andnot retain the right to recall the deed 0even if the right is never

e.ercised1 ) to achieve this, can deliver deed to a Crdparty with

instruction to pass to grantee upon grantor's death osengrant v& osengrant H 8 * want to give property

to without probate so sign deed and leave with bank in

envelope for 2TH2 or H shows there isn't

necessarily a present intent to convey or at least that H

reserved the right to recall the deedo The grantor delivers a deed to the grantee

o The grantee accepts the deed *ust be Edelivered> during grantor's lifeti%e but /"25 :"T require present

possession but %ust grant i%%ediate interesto 2&g& grantor e.ecutes a deed and places it is a safe deposit bock

f grantor intends to pass title or a future interest to grantee :"W

there has been a delivery even though no present possession f grantor intends that no interest shall pass until death, there has

been no delivery during life and therefore the deed cannot take

legal effect but %ust be governed by the 5tatute of Wills $annot be cancelled once delivered 5"+ requires a writing to %ove title bac

to the grantoro Post $losing record /eed;Title insurance

ecording 5yste% allows for anyone to ascertain owner of land, preserves a secure

place for i%portant docu%ents, protects purchasers for value and lien creditors

against prior unrecorded interests

What can be recorded? 0specified in the recording statutes

o 3ny kind of deed, %ortgage, lease, option or other instru%ent creating

or affect an interest in lando 3 4udg%ent or decree affecting title

o (is Pendens 0notice of pending action1

o Wills, affidavits of heirship nde. syste% 7 types tract inde. and 9rantor;grantee inde. 0%ost co%%on

%ethod of inde.ing1o Title 5earch

61 start with the grantee inde. and go back in ti%e to an

acceptable source or Eroot title> 71 then go to grantor inde. and %ove forward searching if there

have been %ultiple grants of the property interest $"**": (3W -(2 re conflicting interests in land +5T : T*2


21/35

$onflicts that can ariseo $onflict between possessory estates

o $onflict between owner of a possessory estate on owner of a

nonpossessory interest 0lien, %ortgage, ease%ent, covenant1o $onflict between holders of two nonpossessory interests

*ost states have recording statutes that %odify the co%%on law to protect

innocent subsequent parties& Thus the co%%on law holds unless so%eone

can show that they are a !ona +ide Purchaser protected by statuteo !ona +ide Purchaser

5ubsequent purchaser

That purchases in 9ood faith 0without notice1

+or value

o 5H2(T2 -(2 a person who is conveyed an interest fro% a bona

fide purchaser 0protected by recording statute1 has the sa%e rights as

his grantoro Types of recording statutes

61 ace 5tatutes the person first to record their interest wins

!rightline clear rule li%its inquiry into %atters off therecord;difficult to ascertain

9ives very strong incentive to record title 71 notice statutes protects subsequent purchasers against prio

unrecorded interests even though the subsequent purchaser fail

to record so long as there was no notice and no way to have

known of the prior unrecorded interest 3T T*2 "+ P-$H352 C1 ace;notice statutes a subsequent purchaser is protected

against prior unrecorded instru%ents only if the subsequent

purchaser a1 has no notice of the prior instru%ents and 71 record

before the prior instru%ent is recorded Punishes non)recording and & provides incentive to

record

3lso punishes the subsequent purchaser who %ay have

had notice but raced to recording office firsto What constitutes :otice?

Types of :otice

3ctual :otice when one is personally aware of conflictin

interest in real property 0often due to another's possession

of the property1

$onstructive or ecord notice refers to knowledge or

notice gained by searching the deed records purchaser

is dee%ed to know all %atters contained in docu%ents

legally recorded in the deed records, even though the

purchaser did not actually search the deed records

nquiry :otice when prospective purchaser hears or

observes so%ething that would cause and ordinarily

prudent person to inquire further if such further inquiry


22/35

would have uncovered an unrecorded clai%, the purchase

is dee%ed to have notice of ito


23/35

!oard of 2d& 3nd it is recorded& Then Hughes signed and records deed

Then / 8 W record deed fro% Hoergers to / 8 W& 5ince Hughes deed did not beco%e operative until after Hughes

signed it, Hughes is actually the subsequent purchaser and as

such any recording statutes will protect hi%& While the deed fro% /8W was e.ecuted and recorded prior to

Hughes' recording, there was no way for Hughes to have notice

of their ownership b;c the deed fro% Hoergers 0Hughes' grantor1to /8W was not recorded&

n race;notice 4d., then, Hughes was the subsequent !+P,

recorded first and had no notice n race 4d. Hughes was the subsequent !+P and despite

recording 7nd, since no clean chain of title for others, Hughes still

gets it n :otice 4d. Hughes had no notice of the other conveyance

and so is protected by statuteso 3 subsequent purchaser fro% the co%%on grantor acquires title sub4ec

to the restrictions in the deed to the earlier purchaser of the subdivision *3"T= -(2 ) n a subdivision plan, the purchaser %ust

look into prior conveyances fro% the original grantor to other lots

in the subdivision to check for restrictions or ease%ents& $annot

be safe if the title e.a%iner ignores any deed given by a grantor

in the chain of title during the ti%e he owned the pre%ises in

question&

*inority rule since the restriction is not in the chain of

title, there is no constructive notice 9uillette v& /aly /ry Wall ) The /'s deed referred to a recorded

subdivision plan, and the deed to the 9uillettes referred to the

sa%e plan& !ecause both deeds referred to the sa%e plan, it wa

not i%possible for the / to check into the deed to see what the

restrictions of that plan were&o " conveys to 3& " conveys to ! and ! records& 3 records& ! conveys

to $ who records& Who has clai% to title? 3 or $? ) 5P(T 61 purchaser is not bound to e.a%ine record after the date of a

recorded conveyance to his grantor to see if preceeding grantor

conveyed to another grantee who failed to record prior to !+P's

purchase 71 purchaser is bound to e.a%ine record before and after the

date of recorded conveyance since it is recorded, it gives

constructive notice this approach 923T(= increases the cost

of title searching&

(egislative $ontrol of (and -se


24/35

(aw of :uisance part tort 0b;c liability arises fro% negligent;wrongful activity1;part property law

0b;c liability is for interference with the use and en4oy%ent of land1o 92:23( -(2 one should use one's own property in such a way as :"T to in4ure the

property of anothero 3nalysis#

s there a nuisance? is there a behavior on the land that interferes with the use and

en4oy%ent of another of their land?

P %ust have an interest in the land -se and en4oy%ent %ust be of an ordinary kind, not e.traordinary sensitive us

o 2&g& light interfering with %ovie)pro4ection is not nuisance b;c

e.traordinarily sensitive use

ntentional private nuisance if it is intentional, courts are concerned with the

reasonableness of the conduct 0liability e.ists when conduct is unreasonable

under the circu%stances1o ntent purpose or knowledge with substantial certainty0know or should

know1 that the conduct will cause har%o (ook at reasonableness

Traditional approach focuses on the har% to the plaintiff estate%ents balancing of the -tilities

!alance of har% to Plaintiff if not treated as a nuisance

0e.tent and character of har%, social value of P's use,

suitability to the locality in questions, burden on P of

avoiding the har%1 v& balance of har% to public and

/efendant if treated as a nuisance 0social value, suitability

to the locality, i%practicality of /'s preventing the har%1o $haracter of the har% %ust be 5-!5T3:T3( :


25/35

Private v& public nuisance where is line drawn? depends on the theory you

will argue as a plaintiff,o Private interferes with the rights in the use and en4oy%ent of the land

o Public interferes with a 9HT $"**": to the 92:23( P-!($

can be brought by any %e%ber of the affected public but usually only if

can show Especial in4ury> usually set out by statute, will likely be an

in4unction

5pur ndustries v& /el Webb /evelop%ent long ti%e cattleranch and developer starts buying up land closer to ranch

0%oving towards the nuisance1& To balance the operation of a

lawful business fro% a @:"W:9 3:/ W((+-( encroach%ent

with the concern for public safety and so deter%ine it to be a

nuisance but require the developer to co%pensate the ranch for

having to %ove away What should the re%edy be?

/a%ages or in4unctive relief?

!alance of the 2quities balance the har% to the plaintiff of not granting

in4unction against the utility of the /'s conduct;cost to / and public interest of

granting the in4unction versus %erely awarding da%ages are they looking at

the utility of /'s conduct or cost to /?o f utility of /'s conduct;cost to / and public interest outweigh the cost to

P of not granting in4unction, then da%ages will be awarded Te%porary da%ages all da%ages suffered up to ti%e of suit

Per%anent da%ages one ti%e pay%ent for past and future

har% resulting fro% nuisance

Per%anent da%ages are allowed where the loss

recoverable would obviously be s%all as co%pared with

the cost of re%oval of the nuisance and where the

nuisance is of such a per%anent and unabatable characte

that a single recovery can be had, including the whole

da%age past and future resulting thereforeo Procedural issues

o !y deciding who gets the rights;wins;what is;isn't a nuisance, the courts

are practically distributing wealth 2&g& cost of abate%ent is KOG and cost to P is K6GG purely

econo%ic world, P will probably pay KOG)6GG to %ake / stop 2&g& cost of abate%ent is K6GG and cost to P is KOG purely

econo%ic world, the nuisance will not stop

-nder nuisance law,

o f the court states there is no nuisance, then

essentially giving a 9HT to / to continue the

nuisance, thus giving / KOG enriching /o f the court states this is a nuisance and grants an

in4unction, then essentially giving a 9HT to P and

giving P KOG, enriching P

D re%edial resolutions once it is deter%ined to be a nuisance#


26/35

o 61 allow the activity to continue by denying all relief

o 71 abate the activity in question by granting in4unctive relief 0*organ 8

2stancias1o C1 allow the activityto continue if the defendant pays da%ages 0!oo%er

ce%ent co&1o D1 3bate the activity if the plaintiff pays da%ages 05pures1 would not

be a nuisance but for the behavior of the plaintiff

:uisance law only takes effect once a nuisance co%es into being and so the lawtransitioned into other, %ore efficient ways of control land use

$ases

o 2stancias /allas $orp v& 5hultz first deter%ined that the 4et engine

sounding 3;$ unit put in by 2stancias was a nuisance and then, %ust

decide whether to give in4unction or K da%ages& $ost to change would

be K6OG)7GG@& $ourt held to award in4unction b;c no real public interes

is har%ed by it and the unreasonable substantial invasion to P

outweighs the cost to 2stancias :ote if li%ited to da%ages / would only reduce the noise if

the da%ages award was %ore than the cost to fi.& f not %ore,then / would pay da%ages but continue with the noise and P

would perpetually have to sue to recover for te%porary da%ages Why are per%anent da%ages not an option here?

o !oo%er v& 3tlantic $e%ent $o / is large ce%ent plant that e%its dirt,

s%oke and vibrations so strong that crack foundations& $ourt was

concerned about its institutional inco%petence in declaring

environ%ental concerns for the state of := but want to give 4ustice so

declare it a nuisance but on the question of re%edies, given that ce%en

factory provides a social good in providing ce%ent, CGG 4obs and would

cost /, at a %ini%u%, the KDO** it cost to build the plant, this far

outweighs the cost of not providing an in4unction to the Plaintiff 0court

will not look at cost to others in the neighborhood b;c didn't co%e in as

Plaintiffs and it is the role of the courts to resolve individual

controversies1 /issent %a4ority is essentially condoning;licensing a continuing

wrong so long as they pay people off (aw of 5ervitudes purpose is to increase the total value of all parcels involved but the effect is to

burden one parcel of land for the benefit of another0others1o essentially legal theories of enforce%ent how to enforce private pro%ises and to

who%;how far do they e.tend? 3ppurtenant do%inant estate and servient estate

n 9ross servient estate but does not benefit a do%inant estate, but gives the right

to a particular persono 2ase%ents :":)P"55255"= :T225T : (3:/ ) positive pro%ises that can be

conveyed and can be +53, +5/, life estates or other finite estates sub4ect to the 5"+ and

e.ceptions to 5"+, as well as being created by i%plication or by prescription 2ase%ents v& license license is an oral or written per%ission to do so%e act on the

land that otherwise would be a trespass


27/35

9enerally revocable

7 e.ceptions to revocability

o (icense is coupled with an interest in the land

o (icense can beco%e irrevocable if estoppel is shown

Holbrook v& Taylor Taylor gets per%ission to use road, it's been

used before, it's the only access to the property, builds a ho%e,

spends K to i%prove the road and continues to use but when

asked to put per%ission in writing, Holbrook refuses& $ourt heldthat it was not an ease%ent acquired by 3P b;c per%ission, not

under clai% of title but instead that it was a license %ade

irrevocable due to equitable estoppels Taylor relied on the

per%ission to build ho%e Holbrook in better position to state

that road is his, encourages efficient use of land 2.press ease%ents

$reation by 2.press 9rant usually stated in the deed when the grantor

conveys a part of their parcel;lot to the grantee and also grantee a right of way

over the grantor's property $reation by reservation usually stated in the deed as grantor conveying

parcel to grantee but reserving a right of way for grantor over grantee's

propertyo eservation of ease%ent for Crdparty traditionally not accepted b;c

cannot reserve an interest for so%eone who is stranger to the title *odern rule can be reserved for a C rdparty and to invalidate it

would un4ustly enrich the grantee0or subsequent grantees1 at the

e.pense of the grantor who discounts the price based on the

reservation of such ease%ent Williard v& +irst $hurch of $hrist grantor sold 7 lots to grantee

with e.press reservation of ease%ent on 6 lot to the church

across the street for parking& 9rantee then conveyed to Willard

who sued to quiet title against the church& $ourt upheld the

ease%ent for the above %odern reasons& eservation v& e.ception? /o we need to know

%plied 2ase%ents

!y e.isting use based on quasi)ease%ent that an owner of a single

property can use one part of the land for the benefit of another part of the land

so that when the parts are severed, an ease%ent %ay be i%pliedo

2le%ents $o%%on ownership followed by severance

2.isting apparent and continuous use continuous, not sporadic

and should be apparent to the grantee and e.isted prior to easonable necessity of the use if the land %ay be used

without an ease%ent, but cannot be used without

disproportionate effort and e.pense, an ease%ent %ay continue

to be i%plied on the basis of necessity alone


28/35

o


29/35

"nce an ease%ent is created for a do%inant estate, an owner of the do%inant

estate cannot proceed to use the ease%ent for other ad4oining parcels

n deter%ining whether an ease%ent has been %isused or whether to grant a

change in use of the ease%ent, the court looks at#o intent of the parties

language of the deed

how they used the property at ti%e ease%ent was given

use of neighboring properties zoning laws in the area

have there been any in4unctions in the past and for what?

o whether change in use was reasonably foreseeable by the parties

o and whether the increase will unreasonably burden the servienttene%ent

2.ception# !rown v&


30/35

relinquish 8 purpose inconsistent with its future e.istence, therefore

abandon%ent in 6FIO& 3dditionally, since the use as a public trail is no

a reasonably foreseeable change in the scope of the ease%ent,

constitutes a %isuse of the ease%ent& n creating the public trails,

essentially constituted a taking b;c not within scope of original ease%en

and original ease%ent was abandoned&o $ovenants pro%ises to allow others to do things on your land, affir%ative pro%ises as to

one's own responsibilities, negative pro%ises 3ffir%ative v& negative covenants

3ffir%ative covenant requires owner of the burdened estate to perfor% so%e

act or to pay %oney

:egative covenant restrict or prohibits the uses that can be %ade of the

burdened property eal covenants depend on the fact that people succeed to particular estates in land

5uccessive owners of benefitting parcels can enforce the preceding pro%ise

again the burdened land even if they have a s%aller estate than the original

owner

5uccessive owners of servient parcels can only be held to the pro%ises of thepreceding owners if the successive owner has the sa%e estate in land as the

preceding owner

2le%ents#

o ntent to bind successors

o *ust touch and concern the land

o 5uccessors %ust have notice

o Privity of estate hori>ontal and vertical privity

o /a%ages %onetary relief or in4unction

$reation of a real covenant ) sub4ect to 5"+ even if only grantor signs it, if

grantee accepts the writing, then bound by such acceptance 2quitable servitudes do away with all the technical proble%s with real covenants

:ot concerned about privity or type of estate

2le%ents

o The parties intend to bind successors

o 3 subsequent purchaser has actual or constructive notice of the

covenanto That the covenant touch and concern the land either negative or

positive covenant that directly affects the uses to which the land can be

put and substantially affects the value

*ust affect the legal relations of the parties to the covenant as

owners of particular parcels and not %erely as %e%bers of the

co%%unity in general $aullet v& 5tanley 5tilwell 8 5ons / covneys property to P for

KDk and covenant that will have / construct the original dwelling

or building& $ourt holds that this covenant does not touch or

concern the land b;c there is not both a benefitted and burdened

property but the covenant only benefits /, personally


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2.istence of a do%inant estate is essential to the validity

of the servitudeo When the benefit is in gross, will not be held to run

with the land don't want to unnecessarily burden

property ownership if there is no benefit to ad4acen

landso When the burden is in gross, %ay still be

considered to run with the land *ust influence the occupation, use or en4oy%ent of the

pre%iseso ertical privity only Property "wners' 3ssociations have i%plied

vertical privity b;c essentially assigned the responsibility of representing

the interests of those who have benefitted parcels through vertical privit

and therefore can enforce equitable servitudes 3dverse Possessors do not run in privity at all

o /a%ages in4unction

$reation of an equitable servitude ) can be interests in land and while %ay be

in writing, in certain situations can be i%pliedo %plying reciprocal negative covenant if an owner of a subdivision

e.tracts a pro%ise fro% a plot in the subdivision, courts will i%ply a

reciprocal pro%ise on the part of the owner with respect to all other

lands owned such that if sells other parcels in the subdivision, the court

will i%ply that sa%e reciprocal pro%ise on those parcels as well,

whether or not they are stated in the deeds& 3s such, when doing a title search on one's own parcel within a

subdivision, %ust ensure that there are no covenants on other

parcels in the subdivision 3lso, arguably inquiry notice look at how other parcels are

being used 5anborn v& *c(ean *clean wants to put gas station on parcel

and has no restrictive covenant in his deed, although deed states

that it is part of a subdivision in which another parcel previously

was conveyed with a restrictive covenant of single fa%ily

residence only& $ourt held that by requiring the restriction on tha

one parcel, owner of subdivision %ade an i%plied return pro%ise

that other parcels would be used in such a way and therefore,

i%plied a reciprocal negative covenant $o%%on nterest 3ssociations each individual unit is owned separately in fe

si%ple& The rest is owned in fee si%ple as co%%on areas and owned as

tenants in co%%on& 9overnance is established by a declaration of

condo%iniu% that is recorded before the first sale is %ade, providing all dues,

rules, etc& 2ach purchaser, by accepting a deed, beco%es an association

%e%ber and %ust abide by its covenants, conditions and restrictionso 5upre%e court held that restrictions appearing in the originating

docu%ent have a very strong presu%ption of validity trend is to strike


32/35

down original covenants only if they are arbitrary or violate a public

policy or a constitutional righto :eponsit v& 2%igrant privity of H"3 8 touch and concern the land

establishes that H"3's can enforce covenants and equitable

servitudes on behalf of the other owners of benefitting lands who

are in vertical privity 8 that covenant to pay 0affir%ative covenan

does touch and concern the land b;c touches and concerns the

parcel owners undivided interest in the co%%on areas andconstitutes a pro%ise as to how the parcel owner will use those

areas&o P"$":" 5P:95 v& *3$@2:Q2

o :ahrstedt v& (akeside


33/35

landowners violations %ust cause such a 5-!5T3:T3( change in the

neighborhood that the original purpose of the covenants has been subverted

$hanged conditions covenants can ter%inate if the conditions : the

neighborhood have so changed that the covenant no longer serves its intende

purpose conditions on land outside the neighborhood are irrelevant even

when the e.ternal conditions %ake so%e Eborder> lots poorly suited for their

allowed uses

o Western (and v& Truskolaski DG acre subdivision with restriction foronly single fa%ily ho%es& $onditions around the subdivision have

changed dra%atically due to develop%ent, population growth,

co%%ercial develop%ent close to subdivision, e.pansion of %ain roads

/ wants to build a super%arket on one plot& $ourt held that conditions

outside the neighborhood do not sufficiently frustrate the purpose of the

covenant as still provide for safety for children, quiet, tranquil area to

raise fa%ily in, therefore, not sufficiently changed conditions to ter%inat

the covenanto ick v& West ick owns A7 acres, sells one to West with covenant of

single fa%ily ho%es only then, believing that rezoning sold to developer

but West refused to consent& $ourt held that not enough evidence of

changed conditions and since ick elected to pro%ote a residential

develop%ent, %ust honor it& Qoning ca%e into play to handle %assive urbanization and industrialization of cities to prevent

har%ful effects before they aroseo Purposes

To prevent inco%patible uses fro% occurring 0thus reducing nuisance1

To increase property values by %inizing use conflicts, increasing property ta. base

To channel develop%ent into patterns that %ay serve larger social goals

o 2uclidian zoning zoning fro% highest 0single fa%ily residential1 to lowest use 0industrial,

%ay e.clude residences b;c of how nuisance)like the industrial uses are1 but cu%ulative

where higher zoning buildings are allowed in lower zoning uses


34/35

zoning ordinances %ust be in relation to the co%prehensive plan state%ent

of the local govt&'s ob4ectives and standards for develop%ent, based on

surveys and studies to deter%ine the best develop%ent for the general welfare nonconfor%ing uses general rule nonconfor%ing uses can continue until they end

on their own, by their own natural causes unless nuisance? 3llow variances due to previous use

3llow e.ceptions within a zoning sche%e

o $ourt have a deferential policy ) the pro%ulgation of a zoning ordinance by the %unicipalityis presu%ptively valid if it is not unreasonable or arbitrary

courts use rational basis test if there is a rational relationship b;wn police powers

and zoning, the ordinance will stand& 2ven if fairly debatable, but appears to be a

rational basis, it will likely be held valid the ordinance %ust be sufficiently definite, otherwise void for wagueness& f vague, i

would cause arbitrary enforce%ent Qoning laws %ust function to protect the 0health, safety, %orals1 general welfare of th

co%%unity

$annot zone when arbitrary and does not further the general welfare and

public interest When zoning ordinance is applied to particular parcel, it %ay reach a point

where it is arbitrary and unreasonable 3esthetic egulation ) there is a split in the 4d. but %any courts hold that even

though beauty is sub4ective, aesthetic land use regulations are 4ust to prevent

lower property values& 3rchitectural review is one such controlo 5tate e.& el& 5toyanoff v& !erkeley court held that aesthetic provision

of the land use regulations was valid because aesthetic unifor%ity of th

neighorbhood was rationally related to the general welfare in that

affected the property values of the ad4oining property owners, ta. base

of the co%%unity is affected and public suffers econo%ically as a

result & valid e.ercise of the police power 5ign restrictions ) 3 %unicipality %ay not enact a blanket prohibition against

signs on residential property& 5igns are clearly a for% of e.pression protected

by the +irst 3%end%ent&o However, they do i%plicate the rights of local govern%ents police powe

as they take up space and %ay obstruct views&o Therefore, local govern%ent does have so%e regulatory power over

sign place%ent& 3ny regulation of this nature, however, will have to wa

a fine line between legiti%ate health and safety concerns and freedo%of e.pression&

o $ity of (adue v& 9illeo anti)war signs f you regulate too little, it's discri%inatory

f you regulate too %uch, infringe on 6sta%end%ent freedo% of

e.pression

2.clusionary zoning zoning regulations that essentially %ake it i%possible fo

lower inco%e fa%ilies to live in the neighborhood, or so%e other protected

group what other groups?


35/35

o :33$P v& *ount (aurel %ount laurel had zoning laws that %ade it

essentially i%possible for low inco%e fa%ilies to %ove into the entire

%unicipality& While *ount (aurel argued that it was for the general

welfare, the court held that it's definition of general welfare was too

narrow& 3 %unicipality is delegated police power by the state and when

the state uses it's police power, it is for the benefit of all of its citizens&

Therefore, when a %unicipality is e.ercising its police power that has

substantial effect outside the %unicipality, on the general welfare ofother citizens of the state, then %ust take those other citizens' general

welfare into account, proportionatelyo TH22 5 3: 3++*3T

property petherbridge (2008)

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