Question 2



Question 1

Topic: This question deals with the law of property concerning covenants.

Legal source: common law of property, restatements, constitution, federal and state statutes, servitudes, 14th and 15th amendments, law of contracts.

Issues

1. What are covenants

2. How are they created

3. How are they destroyed

4. What are equitable servitudes and how do they relate to covenants

5. How do covenants affect subsequent purchasers

6. What are the dominant and servient tenants

7. Is privity a requirement

8. What are the requirements of equitable servitudes

9. How does notice affect subsequent purchasers

10. How does a common scheme affect covenants

11. How do you determine whether benefits runs with the land

12. What is difference between negative and affirmative covenants

13. Does the covenant have to touch and concern land

14. Who can enforce a covenant

15. How are covenants different from easements

Rules:

Real Covenants:

a. Real covenants are promises to use or not use land in a specific way

b. Real covenants are not an interest in land, but rather a legal promise

c. Affirmative- a promise to act

d. Negative- a promise not to do an act

e. Real covenants are created by express grant and control arise by implication or prescription

f. Real covenants must follow Statute of Fraud with exceptions of estoppel, part performance, and stipulation of parties

g. RC can be destroyed by abandonment, statutory considerations, conditions, Statute of Limitations, violating RAP, merger, and a substantial change in original purpose

Spencer’s case:

a. Grantor/grantee must intend for there to be a Real Covenant

b. Parties must intend that covenant run with the land (express terms “you and your assigns”).

c. Real Covenant must be in writing and signed by grantor and recorded

d. Privity of estate must be present: burden land needs Horizontal Privity (privity between original parties) and vertical privity (between promissor and successors in interest): beneficial land need only VP

e. Must touch and concern land

f. Promise must be enforceable; can’t contradict public policy. English courts typically only enforce in landlord tenant relationship

g. Two additional requirements for covenant to run with burdened land; if assignor of promissor gave consideration, the assignee must have notice of covenant; successor must have same estate of same duration as promissor had.

Equitable Servitudes:

a. ES is an interest in land, but can be implied in equity

b. ES does not require privity

c. ES is a covenant enforceable in equity against successors in interest: does not matter whether covenant runs with the land

d. In England, courts failed to respond to market demands for servitudes enforceable against successor owners. Chancellor in equity began to recognize servitudes that did not meet all requirements of covenant.

e. ES cannot be implied by prescription

f. Breach of Real Covenant= damages

g. Breach of ES= injunction or enforcement of lien

h. Overall, ES are more flexible for those who want to create private land use control arrangements.

Requirements of ES:

a. INTENT that servitude should run with land (cant be implied): for burden to run, it must show that original parties intended subsequent holders to be bound.

b. Constructive, actual, or implied NOTICE.

c. Land which is ES must TOUCH AND CONCERN

d. No requirements of PRIVITY.

Tulk v Moxhany: Generally a covenant that does not run with the land will not be enforced against a subsequent purchaser: EXCEPTION: when property is purchased with notice a covenant restricting use.

1. Actual notice

2. Constructive notice- that which law implies to purchaser by the covenants’ inclusion on an instrument of record

3. Implied or inquiry- that which is charged to a person who should have known of covenant or should have inquired.

Sanborn v. Mclean: a reciprocal negative easement will be implied from a common scheme (majority); a subsequent purchaser will be but on inquiry notice when all lots were uniform in use (must inquire into scheme of community a supplement to title search)

Snow v Van Dam: enforcement of enjoinment due to housing scheme; an existence of a common plan to maintain a uniform development may demonstrate an intention that restrictions imposed upon each lot are appurtenant to other lot in plan (3PBK)

Neponsit Property owners v. Emigrant Industry Savings Bank: subsequent purchasers are bound by an affirmative covenant to pay money for use in connection with but not upon the land which is subject to the burden of covenant: payment of maintenance fee is essential to enjoyment of property therefore it touches and concerns.

Oceanside community assn.: courts may refuse to enforce a covenant for remoteness.

Eagle Enterprises v. Gross: a covenant will not be enforceable if it does not Touch and Concern land because it does not affect the ownership interest of the plaintiff’s other property owners in housing scheme. When it resembles more of a personal contractual promise courts will be reluctant to enforce because it restricts alienation.

Caullet v. Stanley Stillwell and Sons: a covenant will not be enforced if they are too vague; a covenant will not be enforced if it does not touch and concern the land (must exercise direct influence on occupation, use, or enjoyment of premises.

EXCEPTION; arises when the burden is en gross and benefit attaches to property because it does not hinder alienability; covenant will not be enforceable as an ES if benefit is en gross and it nether affects land retained by grantor nor is part of a common scheme

Bennett v Commissioner of Food and Agriculture; enforced running of burden of conservation easement in gross where beneficiary uses public body, obviated by statute.

Hill v Molokai: Fair Housing Act: the meaning of the term ‘single family residence’ does not mean what it traditionally meant. Covenants restricting to ‘single family residence’ should define family to definition unambiguous and will be enforceable on subsequent purchasers.

Shelly v Kramer: 14th amendment Equal protection clause prohibits restrictive covenants based on race or color.

Western Land Co. v Trusholaski: as long as original purpose of real covenant can be accomplished to benefit the restricted area, the covenant will not be enforced, zoning ordinances cannot override privately placed covenants, sporadic and distant violations of a real covenant do not constitute a general consent by property owners for abandon covenant.

Rick v West: Covenant is still enforceable even after there is substantial change in the general neighborhood unless the Real Covenant owner is being unconscionable or oppressive.

Pocono Springs v Mackenzie: as long as there is perfect title there is no abandonment.

Rationale:

The area of law dealing with covenants and equitable servitudes arises because of the historical division between the English courts of law and Equity. Landowners turned to the low of contracts for judicial recognition of a contract right respecting the land use against successors in title because of the law court refused to recognize new types of easements. Landowners wanted to allocate resources efficiently through bargaining by arranging land uses to minimize conflicts. Covenants allowing landowners to strike such bargains allowed promise and successors to be protected against the original promissor and his successors. Equitable servitudes arose because England only recognizes a covenant to run with the land if confirmed to landlord/tenant relationship (due to lack of recording system). The industrial revolution demonstrated the need for enforceable running covenants. Equity stepped in and allowed covenants to be enforceable in equity against subsequent purchasers with notice of the covenant.

Application:

1. Prior to 1848.

According to Spencer’s Rule, Albert could not bring a lawsuit against Bert to enjoin. RC were only recognized by courts of law in landlord/tenant relationship and damages were the only remedy. Albert could bring a suit against Bert for damages if Albert and Bert were in a Landlord/tenant relationship, were in a vertical privity with each other, if the covenant touched and concerned the land, and Bert had same estate of same duration as promissor had. Notice wouldn’t be a factor since Bert admitted he knew of restriction.

2. After 1848.

After 1848, equitable servitude came into existence. In accordance with Tulk, Albert could enjoin Bert regardless of privity of contract and because Bert had actual knowledge of covenant regardless of whether covenant ran with the land.

3. Today.

Albert could sue Bert to enjoin Bert from building a law office according to Snow because restrictions imposed upon each lot are appurtenant to every other lot in the housing scheme.

4. Grant required Bert to pay subdivision maintenance fee

According to Neponsit, Bert would be bound to pay maintenance fees for use in connection with common grounds because maintenance fee is essential of property; therefore it touches and concerns the land.

Answer:

1. Prior to 1848, could not enjoin Bert because of equitable remedies were not available and Albert and Bert were not in landlord/tenant relationship (Spencer’s Case).

2. After 1848, ES developed and Albert could enjoin Bert because equitable remedies developed. Privity of contract and landlord/tenant relationship was not required (Tulk).

3. Albert could enjoin Bert because of common scheme (Snow).

4. Bert would be bound to pay maintenance fees because essential for enjoyment of property, therefore it touches and concerns land. (Neposit).

Comment:

A defeasible fee can be used to create a right of enforcement in a third party or n a person who owns no land. In view of this an argument can be made that denying enforcement of a covenant by a third party beneficiary or a person owning no land makes little sense. Common law ruses that easement may not be created in favor of a third party.

Question 2

Topic: This question deals the law of property concerning easements.

Legal source: The legal sources are the common law of property, state and federal statutes, regulatory law restatements, and constitutions.

Issues:

1. What are easements?

2. How are easements created?

3. What is meant by implication, prescription, by grant, necessity?

4. If created by Grant, what is meant by reservation?

5. What is a dominant and servient tenement?

6. Is an easement revocable?

7. Is an easement coupled with an interest revocable?

8. What is a profit?

9. How are easements enforceable?

10. What is a license?

11. Is a license revocable?

12. What is meant by a right-of-way?

13. What are the types of easement?

14. What is an easement in gross/appurtenant?

15. Do easements run with the land?

16. Must easements run with the land to bind subsequent holders?

17. What is meant by touch and concern the land?

18. May third parties benefit from an easement (are they assignable)?

19. Can an easement in gross be divisible to the jointly held interests?

20. What is the scope of easements?

21. Can a change in scope be used to terminate an easement?

22. How are easements terminated?

23. What is an affirmative easement?

24. What is a negative easement?

25. What are the four historically recognized types of negative easements?

26. What is a public prescriptive easement?

Rules:

1. Easements are non-possessory interests in land which entitle the holder to do something on the land (like a privilege)

2. Easements are created by

a. Necessity

b. Implication

c. Prescription

d. Express grant

3. Easements created by necessity usually occur when you have landlocked land and there is a need for the easement. More than an in convenience. Just because the land is landlocked, however does not necessarily give rise to necessity. This easement is destroyed when the necessity is no longer applicable

4. Easements created by implication arise when there has been a pre-existing use (apparent and continuous), and the necessity of its continuance is both reasonable and evident. Did the conduct of the parties create an easement?

5. For there to be an implied Easement of necessity, the necessity must exist at the time the land was divided. Othen v. Rosier.

6. If land may be used without an easement, but cannot be used without disproportionate effort and expense, an E may still be implied in favor of either the grantor or grantee on basis of necessity alone. Van Sandt. v. Royster.

7. Easement by prescription just like adverse possession can be established through a continuous, open and notorious, hostile, uninterrupted, use for a statutory period. Here a servient tenement has a cause of action against a dominant tenant.

8. Popular easements are the Public Trust Doctrine pursuant to Matthews v. Bayhead. This doctrine has the state reserve certain navigable waterways and tidelands for public use.

9. Easements created by grant can be done so using conveyancing language. “I grant”, as opposed to the promissory language of covenants. Parties expressly stipulate their intentions.

10. An easement by reservation is where a party conveyed an easement and retains the right to use the easement. (Under express grant)

11. In easements there is a dominant and a servient tenement

12. A dominant tenement is the land that will not be burdened. The land with the right to do something

13. A servient tenement is the land that must be burdened. The land with the duty to let something be done or to not do something.

14. Easements are irrevocable

15. A profit is permission to go onto the land and take something off of the land

16. A profit provides one the right to enter another’s land for the purpose of extracting certain minerals that exist naturally with the land. (Minerals, fish)

17. A license as it relates to easements is a privilege to enter on the premises of another, where it would otherwise be trespassing to do so.

18. A license unlike an easement is revocable, non-possessory interest. (Ticket to a movie)

19. Holbrook v. Taylor (ct. finds easement by estoppel) a licensor is estopped from revoking a license if the licensee expended money on the license in reliance.

20. An easement appurtenant is one that does not benefit its holder (the easements holder). They attach to the land for the benefit of the land. Runs with the land

21. An easement in gross is one that benefits the holder of the easement. It is personal

22. The benefits and burdens of appurtenant easements are automatically assignable.

23. An easement in gross is divisible into jointly held interests, but it must be done jointly. Miller v. Lutheran Conf. And camp Ass’n.

24. Easements in gross are not assignable

25. Commercial easements in gross are assignable

26. The scope of easements is usually determined by the intent of the parties at creation. The scope usually can’t be changed except by mutual agreement.

27. An Easement appurtenant to one parcel of land may not be extended by the owner of the dom. Estate, to other parcels owned by him, whether adjoining or distinct tracts to which the easement is not appurtenant. Brown v. Voss.

28. If an E is appurtenant to a particular parcel of land, any extension thereof to other parcels is a misuse of the E. Brown.

29. Exception: the holder of a private road E may traverse the servient estate to reach not only the original dominant estate, but also any land subsequently acquired when those two combined parcels are used in such a way that there is no increased burden on the servient estate.

30. Easements are terminated similar to covenants

a. Release

b. Abandonment

c. Prescription

d. If the easement violates the rule against perpetuities

e. By express grant

f. By forfeiture

g. By merger

31. An easement is terminated when the dominant owner abandons. Preseault.

32. Easement are basically affirmative or negative

33. An affirmative easement entitles its holder to do something on another’s land. For example, a right of way

34. A negative easement restricts the homeowner from doing something on his land. Traditionally recognized negative easements prevented a homeowner from restricting another’s access to what are commonly referred to as NATURAL RIGHTS.

35. Four historically-recognized negative easements are:

a) Blocking light from a window

b) Interference with airflow

c) Interference with water flow

d) Removing of support

Rationale:

The rationale for easements is that it allows a party to enter on the land of another for purposes where it would otherwise be trespassing to do so. Also, the parties have in mind that the easement will benefit a tract of land. Furthermore, an easement appurtenant increases the value of the dominant land presumably by more than it decreases the value of the serviant land.

Application:

When R.R. obtained the right of way from landowners A,B,C, they obtained an affirmative easement. Thereafter, in 1948 when RR contracted w/ landowner D to purchase gravel from D’s land, she obtained a profit a prendre giving him the right to enter to obtain certain minerals that exist naturally with the land.

Tim may have a right of way if he can show that A, B, and C meant for the easement to run with the land. Easements are assignable, but may have to prove if appurtenant b/c it would run with the land.

However, Tim may have problem with the scope of the E. It probably wasn’t contemplated that the property would be used for a 4-lane road. Therefore, since such use of the property would greatly burden the land by allowing for more traveling and noise, even though the easement called for a commercial easement, Tim might not have any legal rights v. A, B, and C.

Answer:

Tim probably does not have any rights against A, B, and C because his contemplated use of your property probably went beyond the scope of the granter’s contemplated use of the property.

Comment:

The Common law rule does not allow a grantor to reserve an E in favor of a third party. The Rest third of property provides that an E can be reserved for a third party, as well as the Willard case which gave the grantor’s intent to reserve an E in favor of a third party, weight over the common law rule. However, recent cases such as Tripp v. Huff and Estates of Thomas v. Wade, re-affirm the common law rule that a grantor cannot reserve an easement in a third person, which is still acknowledged in a number of states.

Question 3

Topic: This question deals with the law of property concerning co-ownership.

Legal Source: Common law of property, restatement of property, federal and state statutes

Issues:

1. What is concurrent ownership?

2. What is tenancy in common?

3. What is a joint tenant?

4. What is tenancy by the entirety?

5. What is the right of survivorship?

6. Can interests be leases?

7. Can the possessing cotenant pay rent to the other cotenant?

8. How can concurrent ownership relations be severed?

9. What is a partition in-kind?

10. What is a partition by sale?

11. What rights or duties to cotenants owe to one another?

12. What are the four unities?

13. What is the effect of the destruction of a unity in a joint tenancy?

14. Is a straw man needed to sever a unity in a joint tenancy?

15. Is a straw man needed to create a joint tenancy?

16. What is ouster?

17. What damages can be received from ouster?

18. What is an accounting?

19. What is community property?

20. What states still use the law of community property?

21. Can one person’s interest be subject to forfeiture by the actions of another?

22. Can one person’s interest be subject to creditors of another?

Rules:

Concurrent Tenancies

1. Tenancy in common

a. Each T has an undivided interest in the whole property

b. Upon death, T’s interest goes to heirs; no right of survivorship

c. T in common can have unequal shares

d. Unless otherwise stated, a TinC is presumed

e. If ambiguity, TinC is presumed (at common law joint tenancy was presumed if ambiguity)

f. Termination: courts can partition and sever

2. Tenancy by entirety

a. Created only in a husband and wife

b. Requires all four unities plus marriage

c. Right of survivorship exists

d. Husband and wife can only convey property if done together

e. Presumption is TbyE if grant is made to H and W

f. Terminated by death or divorce

g. Abolished in most jurisdictions

3. Joint tenancy

a. Each has an undivided interest in the entire property

b. Right of survivorship

c. Each T is seised “per my et per tout”

d. 4 unities are required; if one fails, the JTs become TinC

e. Modern trend: JT may be created by stating explicitly the intent to do so

f. There must be a clear intent on the grantor’s part to create JT

g. Termination: severance - one JT can convert to a TinC unilaterally by conveying his interest to a third party (destroying a unity)

h. Termination: judicial partition

4. Four Unities:

a. Unity of title – all JTs must acquire title by the same conveyance (will or deed)

b. Unity of time – each JT’s interest must vest (be acquired) at the same time

c. Unity of interest – each JT’s interest must be equal and of the same type of estate; split conveyance – a conveyance can be split as to create a JT in combination with some other tenancy

d. Unity of possession – when each JT acquires his interest, he must have the right to possess the whole; the T’s can agree that only one of them is to have actual possession after the JT is created

5. Avoidance of probate

a. JT avoids probate because no interest passes at the JTs death

b. Survivor’s ownership of the whole continues without decedent’s participation

c. JT has no interest than can be passed by will

d. Creditors must seize and sell joint tenant’s interest in property only if creditor acts during joint tenant’s life

6. Unequal shares – the modern trend is that a JT can be sold and divided as to the parties intent

7. Severance of JT

a. Riddle v. Harmon: A JT may terminate a JT by granting undivided interest to self; no straw man needed; one JT may unilaterally sever the JT without using an intermediary

b. Harms v. Sprague:

i. If one JT mortgages his interest in the joint property, the joint tenancy is not severed

ii. Mortgage is a lien and joint tenant does not sever a JT when one joint tenant executes a mortgage on his interest because the unity of tile has not been severed

8. Joint tenancy bank accounts

a. True JT bank account – O may intend to make a present gift to A of ½ the sum deposited in addition to survivorship rights to the whole sum

b. Payable on death – O may intend to make a gift to A only of survivorship rights

c. Convenience account – O may intend that A only have the power to draw on the account to pay O’s bills and no survivorship rights

d. In most JDs the presumption is that the joint account belongs to the parties in proportion to the net contribution of each party, with rights of survivorship

e. Withdraw of jointly owned funds owned by a JT and placement of funds in personal account, terminates the JT

f. Banks favor JTBA

g. JTBA are revocable by the party who created the account

Judicial Partition

9. Judicial Partition

a. The privilege of each co-owner to transform a concurrent estate into estates held in severalty

b. If co-tenants voluntarily agree on division, the termination can be accomplished

c. If no agreement, the result is partitioning

d. Improved portion is generally awarded to improving CoT in partition

e. Owelty – divide the property evenly but order payment from the non-contributing CoTs to the improver in a net amount equal to the non-contributing CoTs share of the enhanced value of the property resulting from the improvements

f. Partition is available to JT and TinC

g. Partition is not available to TbyE

h. The courts perform equitable partitioning based on fairness

i. Partition by sale – modern practice

j. Courts presume partition in kind

10. Delfino v. Vealencis:

a. Burden is on party seeking partition by sale to demonstrate that such a sale would better promote the owners’ interest

b. Partition by sale ordered when: physical attributes of the land are such that a partition in kind is impracticable or inequitable; and the interests of the owners would better be promoted by a partition by sale

c. If too many tenants, a physical partition might depreciate value

d. Modern trend is too decree a partition in sale

11. Kean v. Dench: Court awarded a partition in kind to a third party that received a ½

Interest from a co-tenant on the theory that partition did not injure or prejudice third party.

Ouster

12. Spiller v. Mackereth:

a. A CoT is not liable to the other CoTs for the value of his use of the property in the absence of an agreement to pay rent

b. Since there was no agreement to pay rent, ouster of a CoT must be established before D is required to pay rent

c. Ouster is when the occupying CoT refuses a demand of the other CoT to be allowed in use and enjoyment of the land (secondary definition refers to the running of the statute of limitations)

d. Majority view – occupying CoT is not liable for rent notwithstanding a demand to vacate and pay rent; occupying CoT must have denied the other CoT the right to enter

e. Minority view – occupying CoT is liable for rents on continued occupancy after a demand to vacate or pay rent

13. Note

a. Generally CoTs are not fiduciaries

b. Exceptions: if court compels buyer to hold superior title for benefit of all CoTs when CoT purchased mortgage at a foreclosure sale; when CoT are kindred

Leasing

14. Swartzbaugh v. Sampson:

a. General rule – one JT cannot, without the consent of the CoT, bind or prejudicially affect the rights of the other

b. Exception – one JT may lease all the joint property without consent of the CoT and put the lessee in possession; theory behind exception is that JT is entitled to possession of the entire property and the lease merely gives the lessee a right that the lessor had been enjoying; the non-lessor CoT can recover a pro-rata share of the rent from the lessor CoT if the lessee refuses to allow him the use of his share of the estate

Concurrent Interests in General

15. CoT with long-term exclusive control and possession can assert ouster (claim of absolute ownership and denial of co-tenancy requirements)

16. Each CoT must pay his share of the taxes (if CoT is in exclusive possession can make payments and sue CoTs for contribution)

17. CoT in possession cannot collect from other CoTs for improvements he makes on the property

18. Rent and other profits must be divided equally among the CoTs

Application:

This co-ownership appears to be a tenancy in common because there is no express language of joint tenancy, notwithstanding the modern view that a JT may be created with unequal divisions. However, the unequal shares and lack of express language create an ambiguity, so a tenancy in common will likely be presumed. In addition, no right of survivorship exists in a tenancy in common.

Bessie can lease her portion of the tenancy, but not Albert’s. In accordance with Spiller v. Mackereth, Albert can claim that Bessie is denying him the use and enjoyment of the land. In this instance, Albert might be able to establish ouster and receive a share of the rent payments.

Furthermore, Albert may ask for a judicial partition of the land. If he asks for a partition, he can ask for a partition in kind or a partition by sale according to Delfino v. Vealencis. Under the old view, the courts preferred partition in-kind, but would perform a sale if it were equitable for the parties. However, Albert would likely receive a partition by sale due to the modern trend in the courts.

Answer:

Eve’s Bayou will likely be construed as a tenancy in common with no right of survivorship. Albert can probably establish ouster and receive a share of rent payments. In addition, if Albert asks for a judicial partition of the land Albert will likely receive a partition by sale.

Comment:

Two other forms of concurrent ownership include coparcenary and tenancy in partnership. Coparcenary was an early form of concurrent ownership that operated when female heirs took by descent. Today it is generally nonexistent. Tenancy in partnership is also a form of concurrent ownership recognized by statute in some states; it is closer in relation to a business association than a property interest.

Question 4

Topic: This question deals with the law of property concerning marital estates.

Legal Source: Statutory Marital Women Property Act, federal and state statutes, contract law, constitution, common law of property.

Issues:

1. How is tenancy by entirety created?

2. What are the elements of tenancy by the entirety?

3. What are the marital estates?

4. What is community property?

5. What marital property in a common law states?

6. What is marital property in community property states?

7. What are the feudal estates?

8. Are graduate degrees marital property?

9. Is celebrity status property?

10. May creditors attach?

11. What is jure exoris?

12. What is the Uniform Probate Code?

13. What is dower?

14. What is a curtsey?

15. May women have their own property?

16. Is there a community property?

17. Is La a community property state?

18. What is profit?

19. What is a rehabilitative alimony/permanent?

20. May land be taken away for illegal use of drugs?

21. What is the innocent owners defense?

22. What is les pendant?

23. What result in Hawaii for homosexuals?

24. What results for co-habitating couples?

25. Can a judgment creditor place a lien on property held in a tenancy by entirety?

Rules:

Introduction

1) Marital property is the property held to be owned by both spouses within the marriage. Its definition differs depending on if you’re in a common law or community property state

2) In common law states husbands and wives can maintain separate property but property that they get jointly is marital property except gifts, inheritances, and bequests

3) In community property states the view is that husbands and wives are one and that their property becomes part of the community. Community property includes all property begotten or derived from “fruits of earnings” of either or both spouses. So a domestic spouse can stake a claim in the earnings of the other spouse.

Tenancy by the Entirety

1) A tenancy by the entirety is a concurrent ownership relation that exists between married persons. It has all of the characteristics of the joint tenancy plus the unity of marriage; divorce or death can sever tenancy

2) Common Law Approach:

- Wife was not entitled to exercise rights of ownership

- Wife was to be supported and maintained by the husband

- Wife’s property relationship to her husband was one of dependency

- At marriage the wife became a “femme covert,” ceasing to be a legal person for the duration of the marriage.

- Husband had right of possession to all the wife’s lands during the marriage including land acquired after marriage.

- Jure Uxoris: The husband had the right of possession to all the wife’s lands during marriage, including land acquired after marriage. That right was alienable by the husband and reachable by his creditors.

3) Modern approach

a) The Married Women’s Property Act

- Gave equal footing to managing and disposing of real property

- Statue gave control to a married woman over all her property

- H and W became a complementary team

b) Uniform Probate Code

- Most states allow a surviving spouse to elect 1/3 of the estate when they are not satisfied with the portion provided for them in the will

4) The interest of one spouse in real property held in tenancy by entirety is NOT subject to levy and execution by his individual creditors. Swanda v. Endo.

5) Note: In TbyE there are 4 categories that states are broken into in determining if the state is subject to creditors or alienable.

a. NC, Mass, MI still follow old common law where husband has all rights he is allowed to convey provided that or subject to his wife’s right of survivorship. The land is attachable or may be levied upon by the creditors. Mass allows for total levy upon land. MI and NC states that use and profits not allowed to be levied.

b. NJ, AL, AR, NY, AK, allow for land to be levied upon or attached by creditors contingent upon the survivorship rights. This means that property can only be levied upon only if husband or wife does on survive the other. These states are unclear on alienability.

c. TN, KT allow for alienability to another party, and provides for creditors to attach minus profit and use.

d. Community Property States, WA, ID, CA, NM, NV, AZ, TX, LA, allow for shared interest in property - meaning everything shared or gathered at or during marriage is equal. It is attachable by creditors.

6) An interest in the subject property held as tenancy by entirety is subject to forfeiture irrespective of an innocent owner defense. U.S. v. 1500 Lincoln Ave.

7) Shadow: Husband’s creditors can’t attach to the Tenancy by Entirety.

II Termination of Marriage by Divorce

1) Common Law approach:

- Each spouse would retain the property to which he/she held title

- Property held by the spouses as tenants in common or as joint tenants remained in such co-ownership

- Property held in tenancy by the entirety was converted into a tenancy in common.

- Supported alimony b/c of the principle that the husband owed the wife a duty of support upon marriage and such duty should continue upon divorce.

2) Modern Approach – 1970 Uniform Marriage and Divorce Act

- Equitable distribution: permitting the court to exercise discretion when dividing property

- Some states permit division of all property owned by the spouses regardless of time and manner acquired

- Others restrict it to “marital property” which can include”

a) All prop acquired during marriage by any means

b) Merely the prop earned by either spouse during the marriage (comm. Prop)

- Alimony: Paid only for long enough to allow the dependant spouse to obtain employment.

Some states allow permanent alimony after a long marriage where it is appropriate to

Balance an inequity in the distribution of property.

- Reimbursement alimony: covers all financial contributions toward the former spouse’s

Education, including household expenses.

- In awarding alimony, as opposed to dividing property, education is on factor to be

Considered. Daniels v. Daniels.

- Liabilities are also split with the property, it is presumed to be a community debt.

3) What constitutes marital property?

Property acquired during the marriage regardless of the form in which title is held.

a. Professional goodwill and celebrity good will are marital property. Piscopo

b. Nature and extent of the contribution by the spouse seeking equitable distribution

d. Military retirement pay was not property b/c it possess no elements of value after death. Ellis v. Ellis.

f) A law degree is not a community property asset capable of division, partly b/c it cannot have any monetary value placed on it. Todd v. Todd.

g) Celebrity status can be marital property subject to division. Elkus v. Elkus.

h) An increase in value in the acting and modeling career of a spouse is MP subject

To equitable distribution as a result of the other spouse’s contributions. Golub.

i) A graduate degree is not marital property subject to division upon divorce. In Re Marriage of Graham.

j) A professional degree is not marital property. Mahoney v. Mahoney.

k) A medical license is marital property b/c it was an economic investment. NY is an exception to the Graham and Mahoney rules which say this type of property is marital.

l) O’Brien v. O’Brien – a medical license is property because it was an economic investment

III Termination of marriage by death of a spouse

1) Common law

i. Land stays in the patriarchal family, surviving spouse should be supported for life

ii. Personal property –1/3 to the widow if there were issue, 1/2 if no issue

a. Dower – attaches to the land at marriage

i. Law gave wife all freehold land that husband seised and inheritable during the marriage.

ii. If wife survives husband, wife is entitled to dower in her possession.

iii. After inchoate dower has attached the husband cannot defeat it. Any purchaser or creditor of the h takes subject to is unless the wife releases the dower.

iv. Dower is the right of the wife to 1/3 of the husband’s property after he dies if the heirs she could have borne for him could inherit property.

b. Curtsey- attached to all freehold hand of which the w was seised during the marriage and which was inherited by the issue of marriage (equivalent of dower for husband)

i. Did not attach to land unless issue of the marriage capable of inheriting the estate were born alive.

ii. A widower was entitled to a life estate in each piece of wife's real property if certain conditions were fulfilled

iii. Curtsey is like dower but in order for the widower husband to collect the deceased had to have actually had his children.

iv. Curtesy Initiate: When a child was born of the marriage, the husband’s future interest in the wife’s estate becomes realized.

v. Curtesy Consumate: When wife dies, husband has a right to 1/3 of the wife’s estate.

2) Modern Elective Share-

a. Dower and curtsey were no longer effective

b. If spouse not pleased with the will, she could renounce the will and take an elective share

c. Generally applies to only property of the decedent spouse owned at death.

d. Length of marriage is irrelevant

e. 1990 Uniform Probate Code: amended to achieve results closer to the community property system. It added an “augmented estate” attempting to divide all the property ½ and ½ if the marriage lasted for more than 15 yrs.

3) Uniform Marital Property Act:

- Based on community property principles.

- Property acquired during the marriage from earnings of the spouses is MP

- Individual Property: Property acquired before the marriage by gift, devise or inheritance

- Upon divorce, MP in most states is divided by equitable division

- Upon death, the decedent owns ½ and can dispose of it by will and the surviving spouse owns the other ½.

IV The Community Property System

1) All property acquired during the marriage period belongs equally to the spouses, each having equal right to manage the property.

2) Eight states have a Community Property system:

a) Arizona

b) California

c) Idaho

d) Louisiana

e) Nevada

f) New Mexico

g) Washington

h) Texas

- None recognize dower or curtesy; none recognize tenancy by entirety.

3) In most states, the H and W can freely change the character of their prop by written and oral agreement.

4) Separate Property (as opposed to community property)

- All prop acquired by gift, descent or devise, if before marriage, or after marriage, is that spouse’s Separate Prop.

- Transmuting: can take comm prop and make it SP by agreement of both spouses.

- AT DIVORCE: each spouse gets his/her own separate prop and ½ of CP.

- Moving Couples and Real Property: general rule is that the state where the couple is domiciled at the time they acquire the property governs. If couple moves from a CP state to a CL state, then all property acquired after move is governed by CP, the character of the property acquired before the move does not change.

5) CP compared w/ CL concurrent interests

- H and W cannot simultaneously hold property as CP and TinC or JT.

- CL concurrent interests: TinC and JT can exist b/w 2 or more persons (CP only b/w H/W

6) Management of community property

- Prior to 1960’s the H was deemed to be the manager of the CP. But changed since

- The manager of the CP is a fiduciary: it must be managed to benefit the community

7) Mixing Community property with Separate Property:

- Arises when property is obtained before the marriage but paid for w/ CP funds

- Inception Right Rule: Character of the prop is determined at the time the W signed the K for purchase.

- Time of Vesting Rule: title does not pass to the W until all installments are paid and hence the house is CP

- Pro Rata Sharing Rule: The community payments “buy in” a pro rata share of the title.

8) Migrating Couples:

- How property is characterized depends on domicile of the spouses when the property was acquired.

- CL states generally recognize CP when it is brought into the state from a CP state.

- When a spouse dies, the law of decedent’s domicile at death governs the disposition of the personal prop, and the law where land is located governs the disposition of the land.

V Status and Contract

1) Contracts b/w Spouses

- Antenuptual Agreements: almost always held invalid b/c it limits support and gives incentive for divorce.

- UMPA and the Uniform Pre-Marital Agreement Act: both provide for enforcement of antenuptual prop agreements.

- UMPA: permits a couple to move its marital economics from “status” to “contract” and encourages an interpersonal contractual freedom, not known in CL states

2) Contracts b/w Unmarried Cohabitants

- Trend to divide prop acquired during cohabitation among the cohabitants when split up

- Marvin v. Marvin: Nonmarital partners may K concerning the ownership of property acquired during the relationship. Courts may inquire into the conduct of parties to determine whether that conduct evidences an implied K of partnership or joint venture.

- Monroe v. Monroe (New York): K to share earnings and assets may not be implied b/w unmarried cohabs, but an express K is enforceable.

- Hewitt v.Hewitt (ILL): Refused to recognize K between unmarried cohabs for fear that it would revive CL marriage.

3) Status Rights of Same-Sex couples

- No American State recognizes marriages b/w homosexuals.

- In a # of cities, domestic partnership ordinances have been enacted that permit a cohab couple to register as partners and become entitled to health insurance benefits for partners of municipal employees.

- Similarly, a # of large corporations have extended health benefits to same sex partners.

- Baehr v. Lewin: The denial of marriage to same-sex couples would be valid only if it could be justified by a compelling state interest.

Rationale:

At common law, men and women could own separate property but once they married the men usually had legal rights to almost exclusive management of the property. Married Woman’s Property act help to equal out that premise.

In community property states, women at least have more to say in that the property was held in the community.

Creditors cannot normally attach land held in a tenancy by the entirety when one spouse acts to bring on a debt because it is up to the creditor to be in the superior position to know about what property he can and can’t attach. A spouse does not assume the risk of having property held concurrently taken.

Courts wished to provide women with rights who under normal circumstances were subject to the wishes of her husband and were only allowed to be taken care of.

Application:

Based on Sawada, Mary will more than likely not be able to attach a lien against the marital home if this is a common law property state. Sawada doesn’t allow this.

Because john is in a category 3 which does no allow for interest to be alienable in joint tenancies without severing, and creditors may not attach, that a judgment against marital home is not allowed. In La, however a community property state, judgments may be levied.

Answer:

Mary may be able to execute judgment against other property but not the home. If this were Louisiana there would be a different result because community property is subject to attachment by creditors.

Comment:

The rationale behind Sawanda may be wrong however, because in that case as in this one, involuntary creditors, such as Mary, do not have the time to search John’s property interest to see if he has something that they can attach. They are not voluntary like banks.

In Gastineau v. Gastineau, after playing 6 games for the NY Jets, Gastineau broke his K (b/c they stink), forfeiting a salary of $484,375 for the ten remaining games. The ct. held that the money forfeited by Gastineau was a marital asset. The Ct awarded his wife 1/3 of the marital assets, including 1/3 of the $, when he ran off to Arizona to be w/ his girlfriend, Brigitte Nielsen.

Question 6

Topic: This question deals with the law of property concerning titles, deeds, and

Recordation.

Legal Source: State race, notice, and race-notice statutes, common law of property,

Express covenants, deed law, state and federal statutes, common law,

Constitutional law, and restatements

Issues: 1) What is a deed?

2) What are the different types of deeds?

3) What are elements of a deed?

4) What is proper acknowledgement?

5) What are covenants?

6) What is recordation?

7) What effect on bonafied purchaser?

8) What is title registration?

9) What is the Torrens system?

10) What is the difference between race, notice, and race-notice statute?

11) What is inquiry notice?

12) What is title insurance?

13) What is marketability of title?

14) What are encumbrances?

15) What are Marketable Title Acts?

16) Does seller have duty to present good title?

17) What is estoppel by deed?

18) What is chain of title?

19) What is root of title?

Rules: Deeds:

1) Deed is a transfer of land subject to SoF. Deed is any written

Instrument that is signed, delivered, and conveys some interest in property.

2) Requirements:

a) Grantor must sign instrument

b) Must be properly notarized

c) Grantor and grantee names on deed

d) Must have ascertainable grantee

e) Property must be described

3) Description ambiguities

a) Latent – not an face; can be resolved by extrinsic evidence

b) Patent – on face of the deed; cannot be resolved by extrinsic evidence

4) Deeds warranting title

a) General warranty title – warrants title against all defects and expressly guarantees grantor’s good title; contains usual covenants

b) Special warranty deed – warrants title only from defects arising during time grantor held land; contains usual covenants

c) Quitclaim deed – does not warrant against anything; in majority of jurisdictions purchaser can take BFP statues without notice; only transfers interest grantor has or may have

5) 6 usual covenants

Present Covenants – at time deed is delivered; personal and do not run with the land; SoL begins to run upon delivery

a) Covenant of seisin – grantor warrants that he owns estate he purports to convey

b) Covenant of right to convey – grantor warrants that he has right to convey property

c) Covenant against encumbrances – grantor warrants that there are no encumbrances on property

Future covenants – promise that seller will do some future act; run with the land; no breach until grantee is damaged in future

a) Covenant of general warranty – grantor warrants that he will defend against lawful claims and will compensate grantee for any loss by assertion of superior title

b) Covenant of quiet enjoyment – grantor warrants that grantee will not be disturbed in possession and enjoyment of property by assertion of superior title

c) Covenant of future assistance – rare in US; more common in England; seller promises to perform whatever acts necessary to perfect buyers title to property

6) Brown v. Lober: the warranty of quiet enjoyment does not constitute a warranty that the grantor is the owner of the entire estate conveyed; until such time as one holding the paramount title interferes with P’s right to possession, there can be no constructive eviction and no breach of the covenant of quiet enjoyment

7) Frimberger v. Anzellotti: a latent violation of a restrictive land use statute or ordinance, that exists at the time the fee is conveyed, does not constitute a breach of the warranty deed covenant against encumbrances

8) Rockafeller v. Gray: a covenant of seisin runs with the land to remote grantee even if the original grantor never had actual possession of the land

9) Estoppel by deed: if a grantor conveys land to a grantee that he does not own and warrants title to the land, then subsequently acquires title to the land, the grantor is estopped to deny that he had title at the time of the deed and that title passed to the grantee

Recordation:

10) Recording system

a) Common law – first in time first in right

b) Recordation establishes a public recordation system, preserves important documents, and protects subsequent BFP against prior unrecorded interests

c) Any document affecting an interest in land can be recorded

11) Recordation requirements

a) File deed with county recorder

b) Must be acknowledged by a notary

c) Transfer tax must be paid

12) Grantor/grantee index – conveyance is filed chronologically in separate grantor and grantee indexes

13) Tract index – each plot of land is given a tract # in accordance with governmental surveys; the recorded documents are filed in chronological order under tract #

14) Luthi v. Evans: an instrument that contains a Mother Hubbard Clause describing the property conveyed in a general language is valid and enforceable and makes an effective transfer of the property interest as between parties of the instrument; however, such a transfer is not effective to subsequent purchasers unless they have actual knowledge of transfer

15) Orr v. Byers: a document containing a misspelled name does not impart constructive notice to subsequent purchasers if the written name is material under circumstances

16) BFP rule: protected when:

a) Purchases property, or creditor or mortgager

b) Takes property without notice (actual or constructive)

c) Gives valuable consideration

17) Types of recording acts

a) Race statute – first to record has priority

b) Notice – BFP prevails over a prior grantee who has not recorded unless BFP has actual or constructive notice

c) Race-notice – BFP must record first and have no actual or constructive notice in order to cut off prior grantee

18) Messersmith v. Smith: an improperly notarized deed is incapable of being recorded

19) Shelter rule: a person who takes from a BFP protected under the recording statutes will prevail over any interest over which the BFP would have prevailed; even where person has actual knowledge of prior unrecorded interest

20) Minneapolis v. Hughes: a record of a deed from an apparent stranger to title does not give notice to the grantee of a prior unrecorded interest; recording statute does not give priority to a prior recorded deed that shows no conveyance from a record owner

21) Guillette v. Daly Dry Wall: when a grantor purchases part of restricted land from a common grantor, the grantee takes subject to those restrictions which could have been discerned from the record; duty to inquire into prior deeds

22) Morse v. Curtis: purchaser is not bound to examine record after date of a recorded conveyance to discover whether the grantor made a prior conveyance recorded earlier

23) Woods v. Garnett: deed recorded late – after another deed from same owner – gave constructive notice to subsequent purchaser

24) Daniels v. Anderson: a buyer who, prior to payment of consideration, receives notice of an outstanding interest, pays the consideration at his peril

25) Lewis v. Superior Court: any purchaser who without notice, makes a down-payment, obligates himself to pay the balance, and subsequently obtains constructive notice of litigation, is still protected as a BFP; only obligated to search title before recordation

26) Alexander v. Andrews: subsequent BFP who records first must pay adequate consideration in full before his claim will prevail over previous grantee’s claim

27) Harper v. Paradise: a grantee must make an inquiry as to the provisions of any deeds referred to in his certificate of title; a deed therein gives constructive notice to all other deeds to which it refers

28) Waldorf v. Eglin: actual possession of a condo is constructive notice of the occupants interest in the property; P must inquire into ownership interests

29) Marketable Title Acts: forbids assertion of stale claims (30-50 years); title searches may be limited to # of years in MTA

30) Heifner v. Bradford: independent claims of title cannot be merged

Torrens System:

31) Torrens system:

a) Advocated in Europe for 500 years

b) Government issued certificated of title

c) When owner of land sells, the government cancels the old certificate and issues a new one

d) New certificate of title is conclusive proof who has title, so no adverse possession

e) System attempts to eliminate caveat emptor and protect the BFP

Title Insurance:

32) Title insurance:

a) Developed to insure against defects in the public records

b) Title insurance does not run with the land – must be purchased by each subsequent purchaser

33) Lickmill v. Chicago: one can hold perfect title to land that is valueless, and one can have title to land while the land itself is unmarketable; where title insurance co. is obligated to insure purchaser against unmarketability of title, the purchaser cannot claim coverage for the physical condition of the property

34) Walker v. Chelsea: the issuance of title commitment does not place a duty on the insurance co. to search and disclose to the insured any reasonably discovered information that would affect the insured’s decision to close the contract to purchase

Rationale: The rationale for recordation is to eliminate fraud, diminish negative

Results of caveat emptor, and protect subsequent bonafied purchasers.

Application: - On March 3 Iris received a general warranty deed to Greenacre.

Therefore, Greedy warranted against all defects and guaranteed good title. However, Iris failed to record and consequently, failed to protect herself against subsequent BFP.

- On March 6, Sammy received a quitclaim deed from Greg. Just because

The property was destroyed, does not mean that Greedy could not transfer perfect title (Lickmill). However, Greedy might not have had any interest in Greenacre to convey to Sammy. In addition, depending upon the jurisdiction, Sammy may not be able to claim BFP status until he inquires into the quitclaim deed. Sammy should prevail in a race jurisdiction because he recorded before Iris. However, if he knew of the deed to Iris he will not be able to prevail in a notice or a race-notice jurisdiction.

- If Greedy conveyed good title to Sammy, Sammy’s claim will probably

Prevail because he is a BFP and paid full consideration (Alexander). Sammy presumably did not have actual notice of the conveyance to Iris and Sammy recorded before Iris. Hence, Sammy should prevail in any jurisdiction.

- Because Iris purchased title insurance, she is insured against any defects in title. In addition, Greedy warranted against any defects and guaranteed good title. Therefore, if Greedy conveyed bad title to her, she could probably sue him for breach of the covenant of general warranty. Also, she will likely be able to recover for breach of the title insurance contract from the title insurance co. However, she probably will not be able to recover for the physical condition of the property (Lickmill, Walker).

- Under the Torren system, Iris might prevail because she would have been issued a new certificate of title and the government would have canceled all the prior certificates of title. Therefore, under Torren, Sammy would likely have been eliminated, as a BFP because there would have been conclusive proof that Iris owned the land.

Answer: Sammy would prevail over Iris as a BFP.

Under the Torren system, Iris would have prevailed because Sammy

Would have been eliminated due to Iris’ conclusive proof of title.

Comment: An advantage that title insurance has over general warranty deeds is that

The title insurance co. agrees to defend at any expense all litigation against the insured based upon a defect insured against in the policy. In addition, an eviction is not a prerequisite to a suit on an insurance policy, as it is for breach of covenant of general warranty.

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