Title Assurances



Title Assurances

Warranties of Title

1. Assure That Buying Good Title

1. Caveat emptor of buyer beware so want assurances by express warranties of title in the deed

2. Types

1. Express warranties

2. Title search of pub. record

3. Title registration (irrelev)

4. Title ins. & record search

5. Phys. inspection

Express Warranties

1. Three Kinds of Deeds

1. Gen. Warranty: against all defects

2. Spec. Warranty

1. Only against grantor's own acts

2. CA statutory short form deed is subversion os this

3. Quckclaim

1. Against nothing

2. Use 4 dubious claims of B/A

3. Exec'ors deed often quickclaim deed b/c only middle person

4. CA statutory short form deed, implied prom. by "grant" of limited cov. of seisen & cov. against encumbrances

2. Title Cov's

1. Present Cov's

1. Cov. of Seisin: I own what I purposrt 2 convey

2. Cov. of Good Rt. 2 Convey: I have rt. 2 convey what I'm conveying

3. Cov. Against Encombrances: No encumbrances on B/A

4. Breached @ X of conveyance & W/L runs @ closing

2. Future Cov's

1. Cov. of Gen. Warranty: Prom. 2 defend U'r title & pay 4 any loss which U sustain by the assertion of superior title

2. Cov of Q/E: Won't B evicted actually / constructively

3. Cov. of Further Assurances: Sign any further doc's req'ed 2 close & no duty 2 sign unless have this

4. Breached in future

3. Cov's That Run

1. Future cov's run w/land 2 all successors in int.

2. Present benefit of present cov. in maj. not run unless spec. term in deed

3. Present cov. would run

3. Brown v. Lober (retention of mineral rts)

1. Cov. against encumbrance

1. Classic case 4 it when less than full bundle of rts but S/L ran out

2. Cov of Q/E

1. Weren't evicted yet & wouldn't give constructive eviction

2. Evicted if they mine & somebody interfered so ousted

3. Option of waiting 2 B evicted if stopped from mining but need equip. 1st

4. Frinberger v. Anzellotti (house on marsh)

1. Env. Reg's Not Breach Cov. of Encumbrance

1. Gen'ly govt reg's R not encumbrance

2. Cov. of encumbrance limited 2 title matters found in land

5. Reqt's of Deed in Transfer of Real Estate

1. Signed

2. Sealed

3. Deliv'ed

1. Manual trad. of handing over is clear & cert. but not the min./only way 4 deliv.

2. Evince intent 2 B imm'ly bound & deed has legal effect & B set free

3. Commercial / donative escrow where a gives deed 2 B & tells B 2 deliv. 2 C under cert. circ's

6. Merry v. County Board of Ed. of Jefferson County (commercial escrow then died)

1. Deliv. & Revocable Escrow

1. Revocable escrow is not deliv.

2. No K, intent & deliv. b/c Board not meet her offer before death so revocable escrow

2. Two Ways 2 Transfer B/A

1. Sell / give while alive by deed

2. Give when die by will / intestacy

3. Will can't transfer prop. in life & deed can't B 1st effective @ death

7. St. Louis County Nat'l Bank v. Fielder (reserved L/E & died on B/A)

1. Revocable Deed Valid

1. Split of auth. on whether can retain pwr 2 revoke 4 valid deed

8. Probate

1. Avoid b/c expensive & ineff. way 2 transfer prop. @ death

2. Clear Title in Name of Decedent

1. Most quest's on if homemade attempts 2 avoid probate work & specif'ly if deliv.

9. Sweeney, Administratrix v. Sweeney (tavern 2 bro & retain L/E)

1. Two Deeds: 1 giving 2 John, bro, & other from John back 2 Maurice

2. Both valid so wife wins b/c there was intent in both (2nd deed abs.)

3. Cond'al Deliv. of Deed Abs. on Face 2 Grantee / Escrow in Grantee

1. Sweeney Soln of voiding the cond. (maj.)

2. Chillemi v. Chillemi soln of upholding the cond.

3. Whole trxn void b/c no deliv. by cond. & no intent 2 B bound

4. Deliv. in Escrow 2 3rd party

1. Deliv. 2 3rd party w/instruction 2 deliv. 2 grantee after occurrence of specified event

2. Commercial deed says granting 2 grantee, not the escrow agent & escrow agent gives 2 grantee after grantee fulfills whatever

3. Donative deed abs. on face but deed given from escrow 2 grantee after grantor's death & deliv. occurs on the transfer 2 escrow agent b/c imply L/E in grantor followed by F/E in B

Title Search in Recording Sys

1. Title Search

1. Buyers want 2 know through govt title records that B/A not being granted 2X

2. C/L 1st in X, !st in rt. but exception when in equity, subseq. legal int. transferred 2 bona fide purchaser 4 value (bfpfv) takes precedence over prior equity title

3. Bfpfv is somebody who did not know & purchase 4 value

4. Not do busi. if already in record b/c then not bfpfv & will B implied if in record

2. Recording Acts

1. Broaden C/L exception so subseq. bfpfv protected against prior unrecorded int.

2. C/L is the law unless recording act exists & somebody qualifies 4 it

3. Luthi v. Evans

1. Mother Hubbard Clause

1. Gen. description of estate w/o specif. location

2. Bfpfv won here b/c no constructive notice & protected by recording act

3. Policy of limiting search, econ. eff, fairness & least cost avoider burdened

4. Not used a lot & no reliance on this clause

4. Description of Deeds 2 B Valid

1. Types

1. Metes & bounds: nat. & artificial monuments & dir's & distances from a starting pt.

2. Ref. 2 record: govt survey, records plat (map), & others

3. Ref. 2 the st. & #, / name of prop.

5. Orr v. Byers (misspelling of jgmt of lien against Elliot)

1. No constructive notice 2 bfpfv so protected by recording act & least cost avoider burdened

6. Three Types of Recording Acts

1. Race

1. Person winning the race 2 record prevails & knowledge irrelev.

2. Eff. b/c limits search & encourages recording

2. Notice

1. Protects subseq. bfpfv so must have NO actual / constructive knowledge

2. Fair but ineff.

3. Shelter Rule: person who takes from bfpfv takes that person's good title

3. Notice race / race notice

1. Compromise & req's

2. Subseq. bfpfv

3. Prior unrecorded deed

4. Wins race 2 the record

7. Reqt's of Recording

1. Constructive Notice only 4 Proper Record

1. Phys. copying not make it recorded but if see it, actual notice

2. Auth'ed 2 record

3. Should double check 2 make sure actually recorded as least cost avoider

8. Messersmith v. Smith (notary over phone, oil fever)

1. Notice Race Jxn

2. No Notarization Over Phone so deed unacknowledged

1. Can't ever B recorded / invoke recording act

3. Latent Defect in Record by Subseq. Purchaser

1. Have 2 record the whole chain of title 4 protection

2. Treated as wild deed by imcompl. chain of title

4. Dumb case & rule b/c should B able 2 rely on record

9. Chain of Title

1. Wild deed which doesn't connect back gives no notice & can't record

10. Board of Ed. of Minneapolis v. Hughes

1. Grantee's name blank, then deed effective after fill in name

2. Policy 2 Rely on Record

1. Inspire people 2 record so people can rely otherwise no rsn 2 search

2. Govt has grantor-grantee index not tract index

11. Guilette v. Daly Dry Wall, Inc. (wanted 2 build apt bldg's)

1. Restrictions of plan 4 subdiv.

2. Daly's deed not refer 2 restriction but told 2 see the plan so can't build apt

3. Constructive notice so recording act not protect Daly's

1. Split of auth. but Dobris likes the dec.

2. Policy of protecting family homes, bound by prom's even if not in your paper chain of title, & can't let wiseguys pull down subdiv's

12. Estoppel Grantee

1. O who didn't have B/A conveys 2 A & O subseq'ly acquires, then A is estoppel grantee & O can't say didn't have title before

13. Sabo v. Horvath (patent )

1. Labeling quitclaim deed won't change the nature that it's implicit warranty

2. Estoppel Grantee Should Rerecord

1. Wild deed when somebody else, not grantor, owned so outside chain of title so no notice & allow bfpfv 2 recov.

2. Estoppel grantee should rerecord after grantor becomes T.O. 4 notice

3. Cov. of further assurance in gen. warranty so that grantor would further sign 4 estoppel grantee

14. Woods v. Garnett

1. Not bfpfv when actually saw the deed, even w/tech. flaw so notice

2. Search Until Day of Purchase

1. Expensive search that probably wouldn't hold up in other cases

2. Must treat every grantor as grantor till purchase, search, / death day in som states

15. Curative Acts

1. If deed in record long enough, then flaws cured

2. Modernly, per. very short & let the record work

16. Value

1. Subst'l w/o having 2 B full mkt & mere K consid. not value

2. Reqt 4 protection of recording act 2 protect those relying so econ. can grow

3. If part w/value in pieces, each payment of value must B paid as bfpfv

17. Notice

1. Actual

2. Constructive of either record / inquiry

3. Inquiry notice of what's in deed / those living in premise b/c inquiry would've lead 2 info

18. Harper v. Paradise

1. Heirs' deed contained ref. 2 other lost deed

1. Inquiry notice in their own chain of title

2. Policy of record is not 2 send people off record but here seems tenuous paper title so send them off b/c in best position 2 find out

3. Duty 2 inquire about mystery in the record

4. Reformer would limit inquiry 2 own deed

19. Waldorff Ins. & Bonding, Inc. v. Eglin Nat'l Bank

1. Constructive Notice of Occupation by Inquiry

1. Poss'n = inquiry notice but if can prove would've lied when knock on door, then no constructive notice

Title Ins.

1. Prob's of pub. record & warranties created title ins. (off record int's, bad deeds, no deliv.)

2. Def.

1. Search of priv. title plant that replicate pub. record more eff'ly & ins/guarantee

2. Read record, perf. , search, actually examines gathered info supp'edly

3. Tract record gen'ly & computerization brought new fn's nothing 2 do w/title ins.

3. Risks & Excl's

1. Ins. title described in policy except 4 excl's / exceptions which elim. most risk

2. Excl. gen. risk & accept risk specif. 2 B/A

3. Not ins. against future risk but only present risk

4. Purpose

1. Learn about cond., prelim. title report, & buy search

2. Ins. against parts that look o.k. but R'nt

5. Two Kinds of Policies

1. Owners

1. Buyers pay 4 lenders but no protection from lenders policy & gen'ly get own policy as package

2. Lenders

1. Made title ins. big thing b/c want 2 invest in debt

2. Investment of equity: buying house & debt: loan $

3. Primary lenders & secondary lenders

4. Insist on title ins. b/c want cert. & appearance of sec., esp'ly 4 distant lenders

6. Soc. Gain & Loss by Growth of Title Inx.

1. Diversification of mortgage portfolio, nat'l credit mkt, & free flow of capital good

2. Degrades appearance of bldg b/c nat'l & $ flees from regions

7. Lenders Policy v. Owners Policy

1. Lenders incl. coverage 4 defects discov'able by survey / inspection & also gets survey after buying the place but owners doesn't

2. If 2ndary title ins, then assignable 2 lender but owners policy not assignable except in death

8. Coverage

1. Purchase of price / am of loagn & premiums paid once

2. Split on duty 2 search but better 2 view that there is

3. Torts liab. better on duty 2 search breach b/c no cap

4. No inflation coverage b/c prop. value incr. before but now offer

5. Env. coverage

Role of Land Use: Easement, Profit, License, Cov's, Equit. Servitude, & Zoning

Priv. Land Use Arr in Servitude

1. Def's

1. Non Poss'ry Int's in Land

1. Incorporeal int's / incorporeal hereditaments

2. Priv. int's regarding use / enjoyment of land of another

2. Poss'r Rts

1. Act on the land

2. Excl. others

3. Vol. Diminutions of Privileges 2 Act / Excl

1. Create a prop. int / rt in person benefitting

2. Vol'ly diminish / give up autonomy (restrict land use / give permission)

4. Servitude

1. Umbrella term 4 subjection of prop. 2 another prop/person

2. Priv. law, non-poss'ry int.

2. Servitude

1. Categories

1. Easement

2. Profit

3. License

4. Cov's

5. Equitable Servitude

Easement

1. Non Poss'ry Int. In Land of Another

1. Burden of easement runs w/land

2. Categories

1. Rt of way 2 cross

2. Rt of view 2 prevent bldg (Amer. Rule)

3. Servient tenement serves dominant tenement by allowing 2 B crossed / not build

2. Appurtenant v. In Gross

1. Appurtenant

1. Benefit attached 2 the land (rt 2 cross land)

2. Runs w/the land

2. In Gross

1. Benefit not attached 2 land (scenic wonder)

2. There's no dom. tenement b/c no land 2 attach the rt

3. Assignable gen'ly in commercial setting

3. Aff. v. Negative

1. Aff.: Holder of easement may act on servient tenement

2. Neg.: Holder of easement can prevent axn on serv. tenement

4. Creation by Transfer / Grant

1. Express: By deed in writing & conveys / grants

2. Reservation: Reserve 2 myself rt, etc.

1. Implication

2. Nec.

3. Prescription

5. Willard v. 1st Church of Christ, Scientist

1. Grantor Can Reserve Easement in 3rd Party: Min.

1. Appurtenant FSD easement

2. Effectuate the parties' intent

6. Policy of Preferring Appurtenent Easement

1. EZ 2 Find the Owner

7. Easement & FS

1. FSA w/Easement

1. If abandon FSA, then easement goes back 2 the owner of B/A

2. But s.t's effectuate intent of parties / what's good 4 soc. (RR ex)

8. Holbrook v. Taylor

1. Estoppel 2 Revocable Licenses

1. Pwrful tool that estops serv. tenement from revoking the permission

2. Policy arg's of clogs title, punishes nice people, jud. eff., & encourages unneighborly behav.

9. Van Sandt v. Royster

1. Implied Appurtenant Easement

1. Apparent

2. Cont.

3. Nec.

4. Prior use / quasi easement turned 2 easement by implication b/c forgot 2 express the use & often called utility easement / rt of way

5. Recording acts can't protect int. not created by writing

10. Easement by Necessity

1. Imply When Need

1. Severance, convey of land w/o regard 2 prior use when tract div'ed so no access 2 pub. rd.

2. Implied over the portion of tract w/pub. access

11. Othen v. Rosier (water prob. again)

1. No Crystal Clear Rule

1. Wouldn't have had litig. if bright line rule

2. Implied Easement

1. Although lost, had implied easement by implication b/c of prior use OR

2. Implied easement by nec. b/c landlocked

3. No Prescriptive Easement

1. Permission b/c used gate

4. Irrevocable License

1. Could've solved this prob. by estopping

5. Common Driveway & Adverse Use

12. Four Doc's 2 Protect Those W/O Paper

1. Implication

2. Necessity

3. Prescription

4. Irrevocable License

13. Easement by Prescription

1. Similarity 2 Adv. Poss'n

1. Adverse use but no poss'n so no S/L on ejectment

2. Pseudo Eng. Soln

1. Fxns created in Eng. that eventually led 2 reqt's of lost grant, 20 yrs, & acquiescence where the only real thing is 20 yrs

2. In Amer, disting'ed permission (grande gesture by owner) v. acquiescence (more humbe & gives way 2 grant)

3. Pure Amer.

1. Take local statute of 20 yrs by analosy of adv. poss'n

2. Reqt's

1. Open & notorious

2. Continuous & uninterrupted

3. Adverse & under claim of rt

4. Excl. but understand it's unnec. & excl. as priv. aggressor btwn U & owner, not as member of pub.

3. Tacking: recog'ed but split of auth.

14. Pub. Trust Doc.

1. Paper Missing 4 Seashore Land

1. Div's land by land beneath water, wet sand, dry sand, & veg. line

2. State owns land beneath the water & priv. 4 land beyond veg. but not know 4 wet & dry sand

2. Reservation of Rt 2 Use 4 Pub.

1. Constructive notice 2 easement when sold 2 priv. owners

2. Customary rts is another version of same thing

3. Recording act not applicable b/c held by govt & can't B exting'ed

15. Brown v. Voss

1. Should've Build Faster

2. Can't Attach Non-dom Tenement 2 Dom Tement

3. Rts & Remedies Unbundled

1. Voss, the loser, actually won b/c limited lots B & C only 2 1 family house so can't intensify / improve those lots

16. Scope of Easement

1. Subdiv. of Dom. Tenement

1. Can subdiv. if serv. tenement's burden not incr.

2. Rule of foreseeabiltiy & rsn

2. Easement of Way

1. Can't put up electrical poles but split on sewer pipes

2. Sewer pipes R under

3. Easement by Prescription

1. If 2 drive sheep 2 slaughterhouse, limited 2 the size of the animal

17. Miller v. Lutheran Conf. & Camp Ass'n

1. Recog. of Easement in Gross

1. Default if silent is non-excl but here said excl

2. Recog'ed b/c would have prob. w/utility & gas co. otherwise

3. Assignable if commercial & transferrable if intended

4. Benefit not divisible but must B used as common stock

2. Profit & Common Stock

1. Rt 2 / duty 2 operate profit as common stock / by common agmt

2. Purpose 2 protect serv. tenement & profit not overused by ineff.'cy

3. Profit in gross assignable by history but not divisible

3. Analogy of Profit 2 Easement Rule

4. Common Stock Rule

1. Rule of unanimity & jud eff. b/c no X spent

5. Fewer Prob's w/Appurtenant Profit / Easement

1. Size of the plot gives outer boundary 4 use

Profit

1. Non Poss'ry Int. In Land of Another

1. Rt 2 go on land, sever part / prod. & take into poss'n

2. Always aff.

3. Appurtenant 2 dom. tenement / in gross

4. Excl. v. Non Exc.

1. Excl then only the profit holder may take whatever

2. Nonexcl then profit holder must share whatever w/owner of serv. tenement

License

1. Revocable Non Poss'ry Int. in Land of Another

1. Permission 2 cross land ex.

Cov. & Equit. Servitude

1. Prom's Affecting Land Use

1. Mere prom's, agmts, pers,/ collateral R prom's not run

2. Cov's / real cov's

1. Run w/the land

2. Keep rpom's they didn't make

3. Enforce prom's they didn't receive @ law

3. Equit. Servitude R prom's that run in equity

2. Real Cov's

1. Issues

1. Keep prom's person didn't make / enforce prom. person didn't receive

2. Transferees benefitted / burdened by predecessors' prom's

3. Who is burdened, benefitted, & proper P?

2. Conclusory 4 Policy Rsns

1. Labels of cov. & mere prom. conclusory 4 policy of history, formaility, & just sys of law

3. Spencer's Case

1. Intent 2 Run

1. Express intent of running burden / benefit by assigning but ct can imply if cov. touches & concerns (t & c) the land

2. T & C more 2 do w/prom'or / prom'ee in his status as land owner

4. Reqt's 4 Burden & Benefit 2 Run At Law

1. Burden

1. Form: binding K / prom. & some wants writing

2. Intent

3. T & C: If anything 2 do w/land use

4. Horiz. Privity (H/P): Cnxn btwn prom'or & prom'ee that justifies allowing burden 2 run

1. Req. this b/c thought cov. were bad before so only allow L & T but now think cov. good

2. Eng. Tenurial: only recog. L-T & not btwn neighbors

3. Mass: L-T & easement which is called mutual & simultaneous

4. Amer. Jxn: L-T, easement, & grantor-grantee / successive / instantaneous (4 suburban dev'or & leaking moment when burdened land passed from prom'ee 2 prom'or)

5. Clark: No horiz. privity

5. Vertical Privity (V/P): Succession 2 the assignee of the same piece of X line

2. Benefit

1. Form

2. Intent

3. No H/P

4. Verticality of estate: sucession of some piece of X line, not the same piece of X line

5. Burden Not Run @ Law 2 Adv. Poss'r B/C of V/P Prob.

1. Need same piece of X line but have new orig. title

6. Neg. Easement v. Cov's

1. Cov's R prom'ry but neg. easements R not

7. Historically Dislike Running Burden @ Law

8. Tulk v. Moxhay

1. Invented Equit. Servitude

1. Prom. can potentially B cov. / equit. serv. but some say only aff. prom. in law & neg. prom. in equity

2. Express equit. servitude here

3. Equity, then int. attached & burden the prop.

2. Equity Reqt's 4 Burden & Benefit

1. Burden

1. Form

2. Intent

3. T & C

4. Notice instead of H/P

5. Verticality succession of land (not same as verticality in estate)

2. Benefit

1. Form

2. Intent

3. T & C

4. Vertical succession 2 land / poss'n

9. Prob's of Remedy in Equity

1. Gen'ly give injunction but ct's R reluctant 2 tear down bldg's

2. Could craft creative injunction / give $ but giving $ would blur law & equity

10. Burden of Equit. Servitude Run 2 Adv. Poss'r of Equity

1. Vertical succession 2 land not privity 2 estate so burden runs 2 adv. poss'r who poss's the soil

2. Could B prob. on notice but Dobris doesn't think so

11. Sanborn v. McLean

1. Implied Equit. Servitude

1. Gen'ly suburban subdiv. w/bad atty's / busi. person who didn't hire an atty

2. Implied Reciprocal Servitude (Also Reciprocal Neg. Easement)

1. When dev'or transfers FSA & extracts prom., then if circ's rt, imply that dev'or also gave prom. 2

2. Not recog'ed in conservative states

3. Inquiry Notice

1. Running burden b/c inquiry notice from looking @ neighborhood & ask why all houses same

4. Sanborn's Ability 2 Sue

1. 3rd party beneficiary of the implied reciprocal servitude OR

2. Benefit of implied reciprocal servitude was attached 2 his land

5. Found Common Scheme

6. Injunction 2 utilize bldg as restricted

12. 3rd Party Beneficiary & Common Scheme

1. Some jxn's not recog. 3rd party benefic.

2. If do, want intent that 3rd party benefic. apply & notice

3. Comon scheme / plan meets reqt of intent & notice

4. Should have common plan @ 1st sale & ideally record the whole package before the sale

5. Common plan can B found in lots of places like prom's of sales, brochures, etc.

13. When 2 Imply Reciprocal Servitude

1. Ct of equity can imply when fair, just / any X equitable

2. Most comfortable when there's reciprocal servitude & part of plan b/c want 2 limit pwr

14. Snow v. Van Dam

1. Not Recog. Implied Reciprocal Servitude

2. Find 3rd Party Benefic. & Plan 2 Save Dev.

1. Found on ground b/c entrance 2 track

15. Equit. Servitude's Notice Reqt

1. Notice Only When Seek 2 Burden BFP

1. Donee, devisee, / heir can't escape the burden of equit. servitude by saying didn't have notice b/c 1st in X is 1st in rt

2. Equit. burden is prop. int. so if on land before going 2 bfp, nothing 2 take it off except some rule of law

1. Recording Act

2. C/L exception that prior equity in X lose out 2 later leg. title in a bfp

3. Can only remove equit. burden if no notice + bfp status

16. Proper 3rd Party Benefic.

1. Persons Intended 2 B 3rd Party Benefic.

1. Paper & deed could make it clear & B express (grantee of common grantor & their legit. successors) but ct can imply

2. Creative arg's o.k. but not 2 crazy b/c equit. ct.'s R conservative

17. Neponsit Prop Owners' Ass'n, Inc. v. Emigrant Industrial Savings Bank

1. T & C Case

1. Imp. element mostly 4 running burden

2. Aff. Prom. Runs in Equity

1. Req. burden of aff. $ prom. 2 t & c, benefits the burdened land

2. Then can say land use prom. so can say burden runs in equity

3. But prob. b/c may B lien which may B disting'able from prom's & this prom. is unlike other prom's b/c crisp & clean

3. Ass'n as Proper P

1. If pierce the corp. veil, see prop. owners

2. This ct not recog. 3rd party benefic. but if did, could use that

3. Some jxn would req. ass'n 2 own benefitted land b/c not recog. benefit in gross but Dobris doesn't like that rule

4. Sunset Provision / End in Sight

1. Makes land more alienable

2. Living people can dec. & make best & highest use of land

5. Implied Release Doc.

1. When transfer B/A, duties as prom'or disappeared

2. But if assign TFY, do have 2 keep paying b/c rent is historically kept

18. Hostility 2 Aff. Prom's in Equity

1. More burdensome & harder 2 supervise

19. Types of T & C Prom's

1. Classic Old Burdens

1. Rent, repair, prom. 2 give part. ins, & restrictions like 1 family only

2. Activity on Land

3. Land Use

4. Begelow Test

1. What effect there is on the leg. rel. btwn the parties / prom'or & prom'ee

2. Can see as bundle of rt test where ownership of land is bundle of rts & burdening / t & C is subtraction from the bundle

5. Clark's 2 Tests

1. Lay person see burden / prom. as intimately bound up w/land ownership

2. Fair, wholesome, & make sense

6. Anti-Competitive Clause

1. Thought soc'ly offensive before so no t & c

2. Now, thinks o.k. if in commercial trxn & limited in effect

3. Such clauses make shopping center work

20. Disting'ing Prom's by T & C

1. Can't effect the nat. of prom. that isn't so if prom. not t & c, can't say it does

2. If activity incidental 2 land & misapprop, not t & c

3. If prom. wrapped in rent prom, then can run

4. Money Prom's

1. Gen'ly not classic acts 2 land & suspicious of $ prom's

2. But rent & tax always run

3. Burden of $ prom runs if benefits the burdened land

4. Burden of ins. not run if L can take it & use 4 something else

21. Escaping Burdens We Dislike

1. Rest. proposal says not hide behind t & c but say perpetuity, unrsbl, unconscionable, etc.

2. Frieman says buy the burden but need $ & know who 2 give / names of benefitor

22. Eagle Enterprises, Inc. v. Gross (summer water)

1. Burden & Benefit Quest's Here

2. Burden Not Run

1. No rational land use & no sunset provision

3. Orig. Parties Failure 2 Anticipate

1. Not see intensification of land use even though dev. inevitable

4. Dev'or Can't Keep Busi.

1. Ct not enforce arr. that lead dev'ors controlling lives / where force homeowners 2 keep paying dev'ors

2. Dislike trxnx w/trials

3. Not universal view b/c in FL allow it

23. Caullett v. Stanley Stilwell & Sons, Inc.

1. Form Quest.

2. Burden Not Run

1. Pers'al prom.

2. Benefit in gross not run

3. Both Burden & Benefit Need 2 Run

1. Would lwr burdens

2. Insure that there's package / common dev. & assure ct there's no misapprop. of benefit & burden sys.

3. Dobris thinks dumb b/c req's appurtenant benefit 4 burden 2 run & conservation equit. servitude wouldn't run b/c it's benefit in gross

4. Ways Around This Rule

1. Write a statute / easement but run into prob. if serv. ten. req'ed 2 aff'ly act b/c that's spurious

5. Benefit Not Run B/C

1. Not t & c & in gross b/c dislike burden

2. Not 4 improving neighborhood / imp. 4 commercial int.

3. Too much like feudal & vague

6. Dev'ors Soln

1. Tie 2 some piece of land that dev'or retains w/sunset provision

2. Structure agmt so all agree both benefit & burden run by dev. plan

3. Give up trying 2 hold onto income stream & give 2 homeowner ass'n 2 enforce prom.

4. Don't come up w/own sys

7. Eng: Benefit Attached 2 Busi.

24. Western Land Co v. Truskolaski

1. Restrictive Cov. Still of Value 2 People in Dev.

1. Exterior & interior not change that much

2. Prom. that works & subst'l value

2. Bordered Lot Owners: Most Sensitive

3. Still Value of Res'al Use Left

1. Dev'ors can buy the injunctions / prom'ry rts

4. Alt. Dec.: Forced Sale

1. Could have given damage & let dev'or go ahead

2. Would acknowledge change, dec. 2 let homeowners get something, & govt 2 set price

5. Changed Cond.: Equit. Doc.

1. Refuse injunction if prom's no longer effective

2. If still value 2 benefit holders then would order injunction & enforce prom.

Pub. Ownership & Land Use

1. Types

1. Eminent Domain

1. Formally takes title of prop. & former owner receives just compensation

2. Little imp. today b/c not much $

2. Zoning / Police Pwr Reg.

1. Former landowner not get compensation

3. Taking

1. When reg. goes 2 far by proper / improper govt'al act

Zoning

1. Village of Euclid v. Ambler Realty Co.

1. Howard: Gardening city

2. Jacob: Mixed uses

3. Old fashioned zoning / Euclidean zoning: control use, height, & area

4. Values 2 Zones

1. Most valued use is single family detached homes

2. Most intense use is cemetary

3. Min. # of rms 4 single fam. houses b/c cost $ 2 build new house

5. Cumulative Use: higher use can go2 lwr use, but not vice versa

6. Zoning similar 2 feudalism

7. NY Zoning Act of 1916 began zoning in Amer.

8. Cov's more restrictive than zoning

9. Zoning O.k. & Ambler Should Lose

1. Valid exercise of police pwr o.k. b/c govt has 2 gov & control land

2. Enacted in fair manner b/c nobody singled out & can appeal

3. There's still 25% value left

10. Precedence of Nuisance

1. Not taking b/c zoning is reg'ing nuisance which govt did before

2. Est'ed Const'ty in zoning

11. Zoning enhance prop. values b/c of cert.

12. Apt as Nuisance

1. Filled w/immigrants & poor people

2. Wanted 2 reg. where they live

3. Serve as barrier btwn noise 4 other people in duplex

13. Other Goals

1. Soc. class & aesthetic goals but indir.

14. Protected Land of Zoning & Cov's 4 Nice Place

15. Segregated Use

1. Good b/c can save $

2. Open space is good

3. Pub. health good 4 zoned

16. Mixed Use

1. Positive externality & richness of life

2. Less overcrowding

17. City can't stand in way of prog.

2. Constitutionality of Zoning

1. Nectow v. City of Cambridge: unConst'al in some aspect as applied

2. Union Oil Case: Ct should give notice 2 zoning auth. 4 rsbl X 2 rezone

3. AMG Case: Ct can do rsbl plot but not a large tract of land

3. Amortization Statutes

1. Noncomforming uses which R'nt nuisance & o.k. but not comply w/ so zoned

2. X 2 Get Out

1. Per. of statute rsbl / not

3. Factors

1. Nat. of use

2. Amt of investment

3. Number of improvement

4. Pub. detriment cause by use

5. Charact. of surrounding neighbor

6. Amt of X needed

4. PA Northwestern Distributors, Inc. v. Zoning Hearing Board

1. All amortization statute unConst'al

1. Theoretically, longer per. not matter b/c inherently flawed statute but pract'ly probably would've made a dif.

2. Refusing 2 amortize is 2 protect lousy busi. people

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