He went through his analysis of a case from factual plane ...



He went through his analysis of a case from factual plane, to legal plane to public policy etc.

• Factual dispute( research law (legal plane): we look for a rule of law that allows a cause of action and file complaint( file answer( pre-trial: discovery (production, interrogatories, depositions) also motions (to dismiss, for summary judgment, etc) All these pre trial is factual plane( trial: prima facie case is presented and rebutted( Jury instructions on the law so the rule can be applied to the facts( verdict( appeal (factual findings not appealable, but law and application or technical issue can be appealed). When an issue is of first impression we have to look forwards, not backwards because we’re creating precedent, so we need to look at public policy (public policy plane is third plane).

So, legal analysis is being able to analyze simultaneously up and down the three planes, and back and forth the past and the present line. Important. He placed great importance in being able to do this.

After doing the analysis the issue on a brief or exam should always be a question in the legal plane. No yes or no questions. And because appeal is only a question of law, the answer should be an answer of law: find one sentence that answers the question of law. In this case, what constitutes possession.

So brief as :

facts, issue (no yes or no), rule of law created or used, public policy behind it (why?).

Property is an ex-ante area of law. Torts is a post area of law: low predictability, soft lines, fact dependant, etc. Property relies heavily on predictability, and people change their positions relying on the law: bright line rules, consistency. Lower cost of administration.

I- Principle of Acquisition

• 1-by capture: NOTE: Only applicable to wild animals where property has not been assigned yet. If you kill a dog that belongs to someone, it’s not covered by this rule.

o Pierson v. Post: In this case, what constitutes possession.

o Tresspass: wrongful interference with another’s property. So you need to show property. Rule says you acquire property by occupancy. That’s not disputed. What’s the issue is what constitutes occupancy and that’s the novel issue!

o So the rule is the rule of occupancy. Occupancy gives you possession and to have occupancy you need to entrap, restrain or eliminate the natural freedom, ensnare, etc. by one not abandoning his pursuit. not merely pursue.

o RULE: the three elements are:

▪ Intent to appropriate to individual use

▪ Deprive of natural liberty

▪ Brought beast within his certain control

▪ When ct explores Justinian, Barbeyrac and Puffendorf they are looking for a definition they can choose from to fit their current pubic policy.

• Majority in this case talks about the law because it favors their opinion, dissent argues the facts because the facts tend to favor Post and that’s what his opinion was.

Principle of first in right, first in time: he who saw it first or “captured” it first gets it! Under this principle Pierson gets the fox as well, if we assume that occupancy is what the principle refers to. OR the second it gets on my land if I use Ratione Soli. In that case, occupancy attaches the moment the bird lands on my pool, then I own the bird. BUT, if you shoot it while it’s flying, can you trespass on my land to get it?

• Western states you can trespass to hunt unless you put up signage saying no trespassing. The rule that prevailed, however, is land owners’ rights. No trespassing for hunting.

Constructive Possession: Ratione Soli:

If wild animal is on your property, then you have constructive possession over the animals on his property until the animal leaves his property. It encourages public policy that does not allow trespass. So this public policy of protecting property rights trumps the policy of maximizing fox kills.

Keeble v. Hickeringhill: Malicious interference rule.

Duck pond to catch ducks and guy goes shooting to scare ducks. Difference between this and Pierson is that in this case, the owner of the pond does this for a living, not just for recreation, so in effect Hickeringhill is interfering maliciously with someone’s trade or employment. It’s about first possession in his property. Ratione soli, although this is not mentioned in the case. The whole principle is the principle of malicious interference. As long as you’re benefiting society as a whole, you can compete in the same trade.

Difference between Pierson and Keeble: In Pierson, both are pursuing the socially desirable case, in Keeble , only one of them is pursuing the socially desirable case. Distinguishable case.

Hypo of the surf and sand law school: ok to do because even if your intention was to maliciously interfere with Santa Clara, you are still serving a public good by educating people. Even if you stand out there with sign on SCU grounds recruiting, you’re promoting competition, therefore anything that informs the public and furthers competition is ok. Even if you undersell your product at beginning to get it started. BUT if you continuously undersell, you get into issues of antitrust.

Animus Revertendi: Animals that are not wild. Tamed. Intent to return to the owner. Domesticated animals may not be subject to the rule of occupancy. You should visibly tag or identify the animals. Branding gave notice to the hunter. Constructive notice is ok. Some courts say that tamed animals behave differently and a good hunter would know, so that would qualify as constructive notice. Under law and economics, you would create an incentive for the owner to avoid the problem by tagging the animals. That would minimize the lawsuits by creating a brighter rule.

Property rights are relative: exercise of the captured fox on land of O. O owns fox under Ratione Soli. T owns it under occupancy and T1 steals it back and now owns it under occupancy as well. O, as first in line, owns the fox. So property is relative depending as to who you want to establish your right.

Self help is bad because it led to killing of people for trespassing, so it is no longer allowed. Now you need to take people to court to recuperate your fox.

Exercise on escaped fox from your property taken by hunter: when does occupancy end? When is it wild again? When you lose control of it? When it is no longer under your control AND it has returned to its natural habitat. Is it reasonable to believe that someone else brought it here? If so, you cannot kill it and keep it.

Moore: spleen guy whose cells were harvested without his knowledge as they took his spleen and UCLA develops a line of cells and patent it and sell them, but eventually it lost money, but at the time, they thought it was worth billions and he wants a cut. He was never told and never had informed consent. He sues for conversion: someone takes your property with the intention of permanently depriving you of it. It’s unfair. Unfair to whom? Moore or society? If we don’t recognize his property right, it’s unfair to him but fair to society. Ct decides that for purposes of selling your cells, you don’t have a property right to your body parts. But they do rule in his favor as far as his claim for nondisclosure.

Mentioned but apparently not very important or contemporaneously valued: Bundle of rights: includes: property rights is only a bundle of rights. But recently, there has been a shift towards examining not the bundle, but the people vis a vis each other and their rights over something.

Possession

Use

Exclude others

Transfer or dispose

You can have property rights but not necessarily all the rights in the bundle. You can gift or transfer body parts but you cannot sell them. Feathers of bald eagles, ambergris (to protect whales, you cannot sell the beaks of squid that are found inside whales and are used in the elaboration of perfume). All these give you property rights over your find, but you cannot sell them by public policy to protect these animals

In Ap v. INS we see the new concept of property rights being relative as to what you’re suing for and whom.

AP doesn’t have an absolute right over the news, just as it relates to INS, because we need to recognize their work and from PP perspective we want to encourage the activity of AP. But they cannot sue you for sharing news with your neighbor.

IN Chenney bros. the silk case of the copied fabrics, we get the general rule that copying is ok because the essence of capitalism is competition, and to protect Chenney bros. would give them a monopoly. So in effect, AP is an exception to the rule of chenney even though Chenney was later. It has to do with whether tangible or intangible property is involved. When intangible (ideas, knowledge) etc are at stake, more than one person having it is beneficial to society, a tangible thing on the other hand, can be possessed by only one person at a time. (?) Confusing. Natural lead time protection issue: east v. west coast.

• 2- FINDERS: Soft fact sensitive doctrine.

Trover vs. Replevin: trover suing for damages repleving suing for the actual item back. Armory case: chimney sweep wins because he has superior rights as to the whole world except the rightful owner. Replevin is a better policy because it doesn’t split the interest, and it’s easier to administer.

Hypo of sweeper, jeweler, owner. Owner can sue jeweler, and sweep for damages or ring. If she sues jeweler, he can step into her shoes and sue the sweep for “subrogation”. Jewel was not bonafide purchaser without notice in this case.

Allocation of risk: put the burden on party who is in best position to eliminate the risk. Economic theory.

• Thief: When you BUY from a thief, you bear the risk of loss, because a thief can never pass good title because buyer is best position to discuss title and how he came to possession of the item.

• Bailee: hypo of wendell’s dry clean. Gemma takes her clothes there, Wendell sells them to me, Gemma voluntarily transferred possession so SHE bears the risk. She was in the best position to avoid the risk by selecting her bailee. Subsequent bona fide purchaser without notice possessor of title wins as long as there was good faith. If I suspect he doesn’t have title, I should enquire. But the burden needs to be placed on bailor.

• Finder: where in the spectrum between bailee and thief does a finder fall? And who is the best position to avoid the risk? No clear answer. As the lawyer, you spin or characterize the event. If you lose it, it’s involuntary, so it’s more like the thief. If the other side, you argue that she was careless and we should encourage people taking care of their things better.

In theory, title is superior than possession, but it doesn’t always work: tenant-landlord cases.

Hannah v. Peel: case of the brooch found in house quartering soldiers. He gives it to police, after some years police gives it to owner of house who never lived there. Peel claims on basis of locus in quo (owner of house) Different to ratione soli (applied to wild animals, to protect property rights). Hannah claims it as a finder. Hannah, finder, sues, and after examining three other cases, judge rules for Hannah as a finder because Peel never had any knowledge about it anyway, wouldn’t have known about it, and it was not “attached” to the property. He also seemed to consider that Hannah was honest and returned it to the police in his ruling, going against two precedents and following one. Also, since he never had possession, his expectation was not as high. Finder’s rule: a man owns everything attached or under his land (title) but not necessarily what’s just lying on top of it. Ah! So what does it mean to say that something is attached? The brooch was “loose on a crevice”. If it’s loose, is it attached? If it was on the crevice, was it not attached? Did he “find” it that day or the next day when he actually took control of it and it was lying on the surface?

Ratione soli: concentrates on deterring trespass and trespassers.

Locus in quo: concentrates on protecting landowner’s expectation that anything on your land is yours, and it also sends the message to finders that deters trespass as well. Possession of land carries with it possession over anything attached to it or under it. But, title may trump possession! Court in ring case didn’t have to differentiate between title and possession because they were one and the same. So, when title and possession are vested in the same person, they own it. But when title and possession are split as in the ewes v. gas company case where they find the antique boat and court rules for landowner NOT for land possessor. Maybe because of:

Limited purpose doctrine: allows a licensee to be in a place for a particular purpose only, any other purpose would be considered trespass. Landowner’s intent which goes hand in hand with landowner’s expectations. So Ewes had a reasonable expectation as landowner and he gave the gas company possession but with a certain scope only. So as between a landlord and a tenant, does it make a difference where in the property you found it. If it’s on the ground, the owner’s expectation is bigger, than if it’s just lying on the ground. Courts have always been more protective of things buried in the ground.

Public-public, private-private, private-public: Spectrum. A park, a house, a shop. This can also affect the outcome of a case. How much of their expectation has a landowner given up by opening it to the public if he is the owner of store v. being the owner of the house. Paramount public policy: maximizing probability of return to true owner. So you reward the honorable thing done by the finder because you want to incentivate or promote the public policy, and that means reward the finder.

Old common law of finders.

|What kind of property/where found (landowner’s |public |private |

|expectations) | | |

| Lost; involuntarily relinquished possession. |Finder keeps |Landowner/possessor keeps it |

|Abandoned: no intent to claim rights anymore. |finder keeps it |Landowner keeps it because we want to prevent |

| | |trespass. |

|Mislaid: greater probability you will return |landowner keeps it for the same reason as in |Landwoner/possessor keeps it because true owner |

|because you will realize you accidentally forgot|private. |may return and we want to protect true owners |

|to retake possession. You voluntarily placed | |expectations. keeps it |

|there by true owner. Voluntarily relinquished | | |

|possession. | | |

|Treasure trove: valuable metal hidden in the |Finder keeps | |

|earth. Common law. More American modern trend | | |

|says that anything of value hidden whether or | | |

|not it is under the earth. | | |

On top of this chart you overlap whether a trespass was trivial (fact sensitive, soft rule and court decides), employer-employee (agent for employer), limited purpose doctrine (licensee, invitee, etc)

Modern trend is to give it to the police and then if owner doesn’t come, the finder gets it.

True owner’s state of mind at the moment of relinquishing possession is what determines the characterization of the item. Passage of time may or may not be evidence of that state of mind. Insurance company who had compensated owner of sunken boat and when scavengers found it, they claim title saying that they had not abandoned but were merely seeking

McAvoy v. Medina: barbershop case where patron finds a wallet and alerts the owner. Owner keeps it for true owner who left it After some time, he returns and requests the item since the true owner did not come for it.

Antiquities: when you find it, who should get it? Black market is amazingly big. State should get it, but since there is no incentive for the finder to report it, since they can sell it to a museum, who will buy it. But countries who are antiquities rich, are financially poor, so they cannot afford them. High administrative costs to new rules giving title to owner countries.

• 3- ADVERSE POSESSION: Traditional way to acquire title to real property you satisfy statute of frauds: writing signed by the party to be charged, with material provisions: price, property, party. Transfer of title is voluntary on the true owner. But, there is another way to acquire property: adverse possession. Transfer of title is not voluntary on the part of the true owner. It’s actually a statute of limitations. If occupier meets requirements, he may establish ownership and acquire title.

o Possession vs. title: you can look at it from landowners’ point of view or from squatters point o view. This law exists to reward people for putting the land to productive use.

o First thing you need to do is possess it. So, you start to build up expectations. Law is about protecting reasonable expectations.

o We don’t want to defend property owner’s lack of action in a timely manner.

o Difference between trespassing and adverse possession is that trespassers leave. Adverse possessors stay. Trespassers get sued for money and adverse possesors get sued for ejectment because you want your possession back. Like trover (money) and replevin (item back).

o Your cause of action to eject them, disappears after some time because of a statute of limitations, so you have to defend your property in a timely manner.

o The earning’s approach: the adverse possessor has to earn the land.

o The penalty approach: The landowner has plenty of opportunity to defend and if you don’t do so timely, you snooze, you loose. Burden would be to check it at least once within every statutory period. Statute of limitations approach.

o Elements: 6

▪ Actual entry which gives rise to (this starts the sol, and cause of action, and expectations)

▪ Possession which is

▪ Open and Notorious that is

▪ Adverse or hostile and under a claim of rights (or title)

▪ Continuous for the statutory period

▪ Exclusive.

▪ Some jurisdictions require you pay taxes. (California does this, but it is not the general rule) It allows the true owner to more easily check that no one is adversely possessing your land. DO NOT USE THIS IN THE EXAM

o If you meet all these elements or requirements you get title to the land you actually possess.

▪ Claim of title: requirement of adverse possession that you occupy it under a claim of title. There are three schools of thought.

← Objective: focuses on the owner. As long as you take possession without permission of the owner, or at least in a way that you do not subordinate your rights to the owners rights, then you meet the claim of title. Once there’s an entry, there’s a cause of action and thus, objectively, we have claim of title.

← Subjective: focuses on the state of mind of the possessor! Two kinds:

• Good faith: occupies the land thinking it’s actually his. Cts. Tend to give them title. Other times, it’s with the intention of giving it up one day, in which case there’s no build up of expectations and courts tend not to give it to them, although some bend the truth to say they really intended to hold the land as long as they could otherwise why would they be there!

• Bad faith: occupies the land KNOWING it is not his. Cts are split. Some will give title here because it is precisely the epitome of adverse possession, but others will not because since they are merely trespassers with knowledge they are trespassing the cts will call them squatters.

▪ Color of title: where you have a DEFECTIVE written instrument (my grandma’s land she bought and turned out she only bought squater’s right.) EVEN if just defective in part. So, if you have a defective instrument that gives you 50 acres, I only actually own 10 but title says I own 50, and you occupy 30, you invoke the doctrine of color of title, and you can claim adverse possession of the 50! You get expectations: a written instrument that you believe conveys to you all 50 acres, so even if you didn’t use all 50, since you have built up expectations, you get all 50 under color of title.

▪

| |Punishment doctrine |Rewarding adverse possessor |

|Actual entry |Starts cause of action and statute of limitations |starts to build expectations |

| |running | |

|Exclusive |Did owner have notice?it also facilitates bringing|You have to regulate access like a true owner would to|

| |of the suit because it allows clarity of notice: |build expectations again. you have to assert your |

| |lets you know whom to sue! |bundle of rights to exclude because that’s what true |

| | |owners do. |

|Adverse/hostile |Without permission, not subservient to true |Necessary to build expectations |

| |owner’s rights. | |

|Open and notorious: soft fact sensitive area. |Again, notice to owner before we take title away |if you’re building up an expectation, you need to |

| |from them. does it have to be actual notice? No, |behave like the true owner of a similarly situated |

| |they either knew of should have known |property would behave. Secretive possession does not |

| |(constructive notice). Constructive notice, then, |build up expectation. |

| |is enough. The true owner should check the land | |

| |and if he did, he should see the AP. | |

|Claim right to title |Objective: we’re not focusing on the possesor’s |Subjective: they intend to own it, even knowing it |

| |state of mind, but only on his actions. |wasn’t theirs, not the same as a good faith belief |

| | |that an accidental trespasser would have since they |

| | |would give it up upon finding the truth and that shows|

| | |no expectations would be built up. Most jx. don’t take|

| | |this approach. JX ARE SPLIT: since the pp is to put |

| | |good land to use, you shouldn’t care why people are |

| | |doing it. |

|Continuous for statutory period |To facilitate notice to true owner so that when he|Again you should be there as long as a true owner |

| |visits on a staututory period, he can find the AP |would be so you can claim you have built expectations.|

| |there. you only have to be there as continuous as | |

| |a similiarly situated owner: so if property is a | |

| |skiing property where people only go in winter, | |

| |then the adverse possessor has to go in winter as | |

| |well. AS long as he goes every winter, if the | |

| |owner never goes, the AP gets title if he meets | |

| |all other requirements. | |

Adverse or hostile: from the owners perspective: without permission. From the AP’s point of view: not subservient to the true owner’s rights. I don’t recognize your right to give me permission.

Relativity of property rights prevails again: Wendell adversely possessing my land, gives him the right to seek ejection of Chris who starts to adversely possess my land after him. Even though he doesn’t have title, he has a superior right to chris’ but a lesser right than I do. Policy is that you don’t want the anarchy that would create if you allow a possessor to possess from another possessor! Calling Wendell and giving him permission would stop the adverse possession only if he accepts my permission and my rights as superior to his. If he says no, I don’t recognize your right to give me permission, then I have to file a claim (self help not good!), and the filing of the claim stops the clock on the statutes of limitations.

Van Volkenberg case: couple buys two lots in yonkers and build a house. Then they clear the land below theirs so they can more easily access theirs, they build a house for his brother and farm the land. After some years another couple buy the land and tells them to clear their stuff. The original couple claims a prescriptive right of way for the path they cleared. They should have claimed the whole bundle of rights under adverse possession, not just prescriptive rights. They lose on claim or right. Claim of right depends on what approach we use: depending on Jx they use earning approach(objective) or punishment approach (objective). They were not good faith trespassers for some of it but only for the garage. They lose still! Ct had used a precedent that was objective and in this case they go subjective! They were looking at bad faith vs. good faith trespassing. With respect to the garage was there improvement or encroachment? Encroachment: a part of it crosses the boundary. If the whole property crosses the boundary, then it is an improvement. The garage then, was only an encroachment. The house for Charlie was an improvement. They knew it was not his, so that was a bad faith trespass, so the court doesn’t like this and they rule against that. However, the garage was good faith trespassing so they get that one. They want the Lutzes to lose so they rationalize their opinion to get to that outcome!

Dissent takes approach that NY had always used objective approach and now they changed to subjective approach. But, CT doesn’t like them because they already had a bite at the apple! They sued before and only asked for protective easement. IF they had claimed right to the land under adverse possession at original trial, they would have gotten it! It’s automatic (by operation of law) and you don’t even need to sue for property, you get property as of the day you enter by the doctrine of RELATION BACK!

How much land you get to keep, depends on whether you are claiming under color of title or not. So, then when you sell the property that you own by adverse possession, you don’t have title! So you need to bring a suit to “quiet title” of the actual owner, before you can sell it.

Color of title: requires a defective written instrument of some sort that purports to give you title. You get all the property included in the documents. All property you Constructively possessed pursuant to the terms of the document. If you don’t have this, you only get title to what you’ve actually possessed or occupied by adversely actually possessed. In the case of the Lutz’ they would have gotten only what they actually used.

If you have constructive knowledge of the occupation, you have a cause of action for ejectment if you act within statute of limitations. If you don’t act timely, you lose it under statute of limitations!

Hypo of Tobby’s land of 100 acres. Chris adverses poseses 40. Tobby is in actual possession of 10. Chris’ actual possession trumps the constructive possession of the true owner. BUT, let’s assume that under a defective document color of title, chris actually possesses 40 and constructively possesses 60. BUT Toby gets the 10 he actually possesses because actual possession trumps, and as to the 50% after that, we go back to the fox, and first in time first in right, so the true owner gets the 50% because it attached before to him (Tobby) than Chris. Question is whose actual was first and whose constructive was first!

2nd problem: Color of title assumes that the multiple lots belong to the same owner, because if I adversely possess two lots, but only actually occupy one, even if my defective title says I own the two lots, if the lot not actually occupied is not owned by the same owner, he doesn’t have constructive or actual notice of adverse possession so I can only get title to the one I actually occupied.

Mannillo v. Gorski: concrete sidewalk encroaching on neighbor’s property.

Maine approach versus Connecticut approach. Maine is subjective, Connecticut is objective. DON’T USE THESE ON EXAM. USE THE OBJECTIVE SUBJECTIVE. He discussed objective perspective where the deal is under permission of the owner. The ct ends up saying they need to buy it because 15 inches is not OPEN and notorious. Where the adverse possession is so small, it doesn’t qualify as constructive notice, so you need to show actual notice! It would be too much of a burden on actual owner to continuously do surveys of land everytime someone does an improvement close to your land. If the encroachment is known to the owner, it satisfies the notorious element. If not, then, like in this case, the owner may be forced to sell the piece of land or to pay for whatever improvement if the trespass was innocent. If you don’t meet the requirements for adverse possession you improve at your own risk! So the owner now owns it free and clear!!! In this case, the 15 inch strip belongs to neighbor so the neighbor was forced to sell them the 15 inch strip. Modern day trend, courts will force a sale: either the owner will be forced to buy improvement of trespasser will be forced to buy land, but if you’re bad faith trespasser, owner gets it free and clear if you did not meet requirements for adverse possession. If you’re a good faith improver you may be forced to tear it down. Sometimes the land gets given by trespasser, or forces encroacher to compensate. If you’re bad faith, you will tear it down if the owner doesn’t want it..

So, in this case the main issues were claim of right (objective, subjective) and open and notorious (since there was no actual notice because it was only 15 inches strip).

Boundary disputes: can be solved by other doctrines: agreement, acquiescence and estoppel.

Agreement is when both agree that since they don’t know, they will fix it at a line. An oral agreement is enough if the line is accepted for a long time. Not valid to pass title because of statute of frauds.

Aquiescence is when for a long period of time, (no need for oral agreement, juts conduct and courts will imply agreement) but perhaps shorter than SOL, there is evidence of the agreement between neighbors to fix the line.

Estoppel is when a neighbor acts in a way that makes the other believe the line is in one place and the other person acts in reasonable reliance in changing their position. Applied usually when a neighbor remains silent in view of others expenditures. Same elements as K estoppel.

Subsequent transfer of title has no effect whatsoever on the statute of limitations so adverse possessor still wins.

TWO duties of new buyers: check the sequence of title AND walk the land.

Howard v. Kunto: house was built on the property next to the lot where Kunto actually had title to. Howard has title to that lot. Kunto claims it on Adverse possession. Two issues: summer property. Not continuous presence. But the law says that you need to be continuous as an average owner of such a property would be there. Since the Kuntos had used it as that, the ct says that counts as continuous. Other issue: how long they had been there: one year. But the court “tacked on” the possession of the prior possessor. Doctrine of Tacking: adding the periods of successive adverse possesors together to satisfy the statutory period. This is done because of earnings and statute of limitations approaches. What type of relationship if any should there be to allow tacking? Privity. What’s privity? Jx are not consistent down the tree of issues that could arise: They could be earnings based and then go to objective statute of limitations for this. They could focus on true owner for tacking (owner has to take care of his property) then a tacking would be allowed because regardless of how she came into possession there was an opportunity to discover the possession and could have had a cause of action. SOL approach. As long as there was no significant gap in possession. Under earnings approach, it would be defined differently. You have to prove you had a good faith reasonable relationship between the parties to establish privity (as in you buy the land from someone who doesn’t own it and you did so in good faith, so your expectations are built up and we need to protect it). Relationship: meeting of the lands, voluntary transfer. If bad faith, then you have not “earned” the right to title. A jx. Can use subjective for determining claim of right and objective for analyzing privity! So IN EXAM GO DOWN ALL THE POSSIBLE FORKS IF THE EXAM DOESN’T TELL YOU WHAT DOCTRINE THE JX TAKES.

Ct here says this is a novel issue and goes to PP: why did we require privity? To prevent squatters from having title over a land they trespassed knowingly in bad faith. Since the Kuntos were not there as squatters in bad faith, then they will not be required privity.

English approach= objective approach= true owner SOL approach

American approach= subjective approach= earnings approach

Hypos on page 142: Wendell ap’ssing Dan’s land for ten years. Shea comes and tries to possess. Wendell sues for ejection. He wins with respect to shea because he has superior rights to shea due to first in time first in right. But he loses against Dan if sol hasn’t ran. Also, make the argument that even in English approach where we might p[ermit tacking, if the second person has no privity (forced first possessor so we may not want to reward violence)

If A leaves land and comes back after 6 months, we can argue that he was trying to come back as a true owner would. So if there was no privity between A and B, he can still claim land after sol runs. Also, from the point of view of owner (objective) he still never checked. Although he can say it was not continues, there was a gap. However, since he was still not checking on his land.

Problem two: guy possesses. Owner dies. Statute runs from possession, not from transfer. Transfers of titles do not affect the statute of limitations because you have the duty to walk the land.

If B came back within sol he could eject A. If C is named as remainder heir under o’s will, C cannot eject A until B is dead. Future interest for C.

Problem three: O dies. Leaves to B with remainder to C (he has a title to the right to possession, which is some future interest). After that A possesses. Meets requirements. B dies and leaves to C after A has met requirement. Who get it. Depends on the quality of title A has earned! As an adverse possessor you acquire the type of title the possessor had. So, if B had a life estate (right to possess for the rest of his life) A acquires the same for the rest of B’s life!! So when B dies, the statute of limitations starts running again!!! So C can eject A ! TAKE A SNAPSHOT OF THE TITLE AT THE TIME OF THE ADVERSE POSESSION! SO IF TITLE WAS SPLIT BEFORE THE POSSESSION IT RUNS THE LIFE OF B. If POSSESSION TOOK PLACE BEFORE TRANSFER OF TITLE HE GETS TITLE BECAUSE B SHOULD HAVE WALKED THE LAND. IN the case of after the title but C didn’t have a chance to check land, then there’s no way to protect his interests! B could have checked but C could not.

Only the party with the right to possession can sue a possessor, even if it’s under a lease! So lesees can sue possesors, owners cannot if the land is leased. Because you get the right to possess. Think of right to possession as a physical piece of paper that once you give it you cannot use as long as he has it.

DISSABILITIES DOCTRINE:

Protects the true owner more. You wait for like 10 years after the disability is removed. It’s only material if the disability exists at the time of the possession. The disability needs to be of the true owner OR the party who has the right to possession! You toll the running of the statute until the disability is removed.

Dissability is only infancy, mental incapacity, or imprisonment.

Problems on page 143: 18 years is majority. SOL is 21.

• always calculate SOL without disability.

• Problem 1. AP starts on 1980. AP would grant title on 2001.

But, O dies intestate on 1980, so that’s when the disability gets removed + 10 years=2013.

b- Immaterial that the kid was six on 2003. The day of possession it was not a disability the owner or owner of right to possess had.

2- Immaterial. Minor was a minor after the AP started. Dad should have checked land.

3- in 2003 because the son was five when AP happened in 1980. So we need 13 more years to remove disability. So 1993. So 2003. But he becomes insane in 1995. Immaterial because you cannot tack disabilities. So AP gets it on 2003.

BUT disabilities doctrine CANNOT be used, obviously, to shorten the period because it is an attempt to give added protection to the true owner. So if the ten years run before the 21 would have run, then you use the 21, evidently.

Adverse possession of government property: General rule is no, you cannot. You cannot because we all own the property. Also exclusive would be hard to prove because it’s open to public, also it’s not hostile because we are allowed. Some jx. Do permit it because government should not be held to a different standards. Two ways that it has been permitted: They extend the statutory period and make it longer so the government has opportunity to act. Or they permit it in government land that is held in a proprietary way: when they own it as a private landowner would.

Adverse possession of Chattels or personal property:

O’Keefe case: Painting that is stolen. Main rules: thief cannot transfer good title. But adverse possession may trump the general rule that thief cannot transfer title. Another general rule: a possessor cannot transfer title. The Franks concede that the painting was stolen for purposes of the motion to dismiss, and claim it on adverse possession because they satisfy the requirements. However, the true owner is not necessarily on notice with personal property. O’Keefe says that unless it was displayed on gallery, there is no open and notorious. From the perspective of the doctrine of earnings, the doctrine should not be changed because you have built up the expectation. If you take the alternative view: punishment of true owner for sleeping on their rights, then it doesn’t apply because the owner didn’t know where it was, so doctrine of adverse possession should be changed then.

Trial ct: decided to take the plain statute of limitation period of 6 years and O’keefe loses. Don’t bother with adverse possession.

Appeal ct: finds for O’keefe because the elements of adverse possession were not proven by the Snyders since the Franks were not displaying it openly and notoriously. But typically that’s how you use paintings!

Supreme court of NJ: Discovery rule: we need a new rule. More protection to the true owner of personal property. True owner has to know or should have known all the facts necessary to bring the cause of action and who is in possession so they can sue. Shifts the spotlight to the true owner. Rule of discovery: As long as she’s exercising “due diligence” to find it, the statute of limitations is tolled. BUT the issue will become what is “due diligence” in this case. Unclear whether the Franks had to still prove adverse possession or whether the discover rule has replaced adverse possession. Are they adding more protection to the true owner, by replacing the open and notorious element, or replacing the other rule.

The tacking issue: tacking is permitted as long as there is privity of the parties with each other.

NY says that the discovery rule doesn’t provide enough protection to true owner. It claims that statute of limitations should not begin to run until owner has actual knowledge of who has actual possession, you demand return and they refuse.

GIFTS: Intervivos, or when you’re dead. The law about making gifts when you’re dead is the Wills and estates! Requirements:

Intent: voluntary transfer of title, dominion and control. Present intent to presently relinquish interest of the item.

Delivery: handing over. Common law and still today. Physical delivery of the possession. You do not have to have physical delivery of impractical items, then you (what’s practical?) then you can do a symbolic or constructive delivery: could be a document. Livery of seisin ceremony of handing over a clot of dirt to transfer title. Constructive gives you control of it. A key is symbolic of car but also gives you control to the car. Traditional and still common rule: if physical delivery is possible, then that’s the only way to achieve the gift. Modern Trend: The intent should be the key, so why put formalism over intent. Drop the formalism and focus on the clear intent, so long as it is clear, the gift is ok. Administration costs go up and there’s a potential for fraudulent claims, soft fact sensitive rule.

Acceptance: you need to have this. You can reject gift.

Problems on page 158:

1- Is redelivery required? Pearl ring misplaced and mom says to keep it. Common law rule: no redelivery required if party is already in possession and donative intent is clear. Cannot change her mind the next day. You’ve relinquished interest on the item.

REAL PROPERTY GIFTS: A deed is effective upon delivery and not signing it. Not the recording of the deed either, only delivery! Properly executed and delivered. If donee tears up deed it doesn’t transfer title, you need to properly execute it and deliver it.

Second part: A keeps the ring, because she kept the title to the ring and only gave O the possession temporarily.

Third part: gratuitous promise not enforceable. She needs a will to show intent. No wrench of delivery. IF it were in writing, then the person could argue that the symbolic delivery of the paper is a present intent to transfer a future interest and splits property into temporal possessions and titles.

POSSESSORY ESTATES AND FUTURE INTERESTS:

Three types:

• Fee simple absolute. Doesn’t end. No future interest. To O and her heirs. Is now the default estate.

• Defeasable: May end. Three types depending on who gets the future interest must be there. Always also give the kind of possession being given in the future interest: usually Fee simple absolute. Almost always fee simple

o Grantor holds future interest:

▪ Determinable : future interest is called: possibility of reverter. Automatic loss of possession, which starts the sol going! Doesn’t wait for owner to re-enter. While, as long as, until. Statute of limitations starts to run automatically as well, because at that point the possessor is there adversely and could claim by adverse possession. Condition subsequent needs to be met.

▪ Subject to condition subsequent: future interest: possibility of re-entry or power of termination: waits for owner to re-enter. To Chris and his heirs, but if he misses another day of class, I keep the right to re-enter. Statute of limitations doesn’t start to run until you try to enter. BUT IF can introduce a condition subsequent or precedent! So focus on terminology that introduces it and think conceptually: would it occur after the interest becomes possessory or after. IE: Condition subsequent: To A for life, then to and her heirs, but if B stops farming the land, then to C and her heirs. Condition precedent: To A for life and then to B and her heirs, but if A stops farming the land, then to C and her heirs. SO in this last case, the condition is precedent to B ever holding the possessory estate.

o Third person holds it:

▪ Subject to Excecutory limitation: future interest: executory interest in fee simple absolute. More than likely a shifting. Springing ones are harder.

← Springing: when future interest is being taken from grantor (the original spring!)

← Shifting: when future interest is being taken from a third person (you shifted the interest)

• Finite estate: will end. Future interest has to be there. Duration will depend on words of limitation. For default reversion (when it is not specified in paper: to A for life. Who gets future interest: owner under reversion) to owner it will be fee simple absolute because owner is presumed to have retained what he has: reversion in fee simple. Remainders: are third party.

o Life estate: for life. Used to be default estate in common law. Future interest: reversion to owner, Remainder to third. Magic words: To A for life. Your right to possess ends with your death, not forever like fee simple.

o Fee Tail: magic words: To A and the heirs of her body. reversion to owner, Remainder to third person. Series of life estates. Almost all Jx have abolished them. Fair game for BAR exam! Fee tail male, fee tail female.

o Term of Years: know the last day on the first day. reversion to owner, Remainder to third. No magic words: for six months, until December 5,1987, etc.

o Remainders are two types:

▪ Vested : Three part test (all three must be met)

← Born

← Ascertainable: you can identify the holder by his name.

← No express condition precedent. IF THERE IS ONE: IT Must be satisfied BEFORE the remainderman can take actual possession so it becomes contigent. IF is the classic way of introducing a condition precendent. KEEP IN MIND WHETHER THE CONDITION PRECEDENT IS IN THE SAME CLAUSE creating remainder OR IN THE CLAUSE BEFORE THAT CREATES THE REMAINDER. IF IT’S AFTER IT, IT CREATES A VESTED REMAINDER SUBJECT TO DIVESTMENT!!!

▪ Contigent: all will be contigent unless they meet the test for vested. Once the person is born, or whatever, it becomes vested. Anytime you have this, you have a default reversion because if the person doesn’t meet it, it reverts to the owner in fee simple absolute. Concition must be express, not implicit in the nature of estate. IT must vest prior to the end of the finite estate. Allison needs to get married before Gemma dies! The test is the second Gemma dies. So under the destructibility of contingent remainders doctrine, it is destroyed by operation of law and you can have a holder of a future interest never get the future interest if the precedent clause is not met before the time of possession. Can die:

← naturally, by death of holder,

← or three ways:

• Renunciation: even if you accept it, you can renounce your interest, before you accept it or after you’ve accepted it.

• Forfeiture: If you commit a crime, you forfeit your property. In Fresno, if you drive DUI you can lose your car. They get 80 cars a weekend. Forever! Never get it back.

• Merger: If same party holds two successive interests (by having a previous interest holder, transfer it to you) the shorter one merges onto the longer one. So anyone who had the remainder, if the owner bought back the finite estate from possessory holder, then he now has a fee simple absolute and remainder has nothing.

o To Gemma for life, then Jessica for life, then to Allison and her heirs if she gets married. If O buys gemma’s life estate, remainder continues to exist because Jessica’s life estate is still in between O’s reversion and what he bought. If he buys Gemma and Jessica, then Allison is screwed because she had to get married before the merger of the two: the shorter interest of gemma and Jessica, and your reversion interest. What happens if you only buy Jessica? Beyond the scope of class!

← Alternative contingent remainder: when your future interest is a contigent remainder on another contingent remainder. SO, it becomes possesory only after another contingent remainder does not: to A for life, then to B and her heirs if she graduates from law school, but if B fails to graduate from law school, to C and her heirs. Condition was in precedent clause, and depends on previous condition not being met.

All reversions are transferable, vested remainders are transferable.

Always tell me the name of holder of future interest and its duration.

Assume common law drafting rules unless told otherwise.

To O and her heirs. She gets fee simple absolute.

To O is the Words of purchase. And her heirs. These are the words of limitation.

When you have a finite estate with contingent future interests and alternative contingent future interest, you still need the reversion in fsa to grantor because legally if the finite is terminated not naturally (so either renunciation, forfeiture, merger), and the first contingent is destroyed, then the second contingent interest is also destroyed if the first contingent remainder is not vested. To Jessica for life, then to Darcy and her heirs if she gets married, but if Darcy doesn’t get married (otherwise) to Chris and his heirs. Both are contingent since precedent contingencies are before the clause. Chris is an alternative contingent and we need a reversion to grantor.

Two quirky types:

To jenna and her heirs if she graduates from law school

• Springing interest:

O holds a fee simple subject to executory limitation

Jenna has a springing executory interest in fee simple absolute

• Gap situation:

A for life, the B and her heirs if she attends A’s funeral.

A has life estate. O has reversion in fs subject to executory limitation.

B has a springing executory interest in fsa.

Gifts to a class:

To A for life, then to A’s children and their heirs.

Assume A has no children.

A has a life estate. A’s children have a remainder in fee simple. Contingent. Not born! Reversion to O in fsa. So, contingent remainder in fee simple absolute with a reversion to O in fsa.

Assume A has a child X:

X holds a vested remainder subject to open (A could still have more children) in fsa. Reversion to o in FSA.

When does the class close? When possession is to ok to be taken by one member of class, no more members may enter class. Convenience rule!

Also closes when A dies, but that’s a natural close.

So,

To A for life, then to B’s Children and their heirs.

B has no children: A has life estate, B’s children have a contingent remainder in fee simple absolute, o has reversion in fsa.

B has a child X: A has life estate, B’s children have a vested interest subject to open in FSA.

A dies, 2 years later B has another child Y. So does Y get anything?

Source of class (B) is still open when A dies. She could have more kids. The rule of convenience: once the finite state ends, if one member of the class is entitled to claim right of possession, the class closes so we can know what to give them. So when A dies, X claims property and the class is closed to Y.

Finite estates defeasibles:

Not on the fee tail. We can overlap on term of years but that’s later. So we only apply to life estate.

As long as or but if.

To A for life, as long as she remains unmarried, then to B and her heirs.

A has life estate but can be cut short. Since the words are “as long as” it’s easy: life estate determinable. B has ? Is it only going to B if A marries or is it going to B any way? If you use as long as, cts assume it will go to B either way. If you use But if language, we assume you meant it to go back to grantor.

As long as: third party takes future interest anyway. So life estate determinable with a remainder in fsa. Or with a reversion in FSA. SO as long as only goes with remainder or reversion.

But if: Who takes future interest? Grantor: then subject to condition subsequesnt qeith reversion in fsa to grantor. IF third party gets it, then there’s a fork in future interest, so life estate subject to exectory limitation, B remainder in shifting executory interest with a reversion in fee simple.

So, to a for life, as long as she remains unmarried then to B and her heirs:

1- A has a life estate determinable. B has a vested remainder in fsa.

2- To A for life, but if she marries, then to O and her heirs:

A has a life estate subject to a condition subsequent, O has a reversion in fsa.

3- To A for life, but if she marries, then to B and her heirs:

A has life estate subject to an executory limitation and B has a vested remainder in shifting executory interest, with a reversion in fsa to O.!!!

Shelley’s rule:

To A for life, then to A’s heirs and their heirs. To make sure it only goes to the heirs of A! Cts. Disagreed. So when you have a remainder in the heirs of the life tenant, give the remainder to the life tenant (then check for merger). So in effect A gets FSA.

If you have B in between, you still apply the rule in Shelley’s case, and since you don’t have the possibility of merger then A gets life term and remainder in fsa only after B’s life estate. So no merger.

It’s gotta be in the same conveyance. If you see a clause giving a remainder to the heirs of someone, get the red flags in your head. BUT ONLY IF IT’s THE LIFE TENANT!

Also, To A for life, then to A’s heirs who attend A’s funeral and their heirs.

A has a life estate, O has a reversion subject to an executory limitation, A’s heirs have a springing executory interest. So Shelley’s rule doesn’t apply because there’s An EXECUTORY INTEREST, NOT A REMAINDER.

IF it IS A REMAINDER, SHELLEY’S RULE MAY APPLY, BUT ONLY A REMAINDER, NOT AN EXCUTORY INTEREST, AND ONLY IF IT SAYS ‘HEIRS’ NOT CHILDREN NOT FAMILY, OR ANYTHING ELSE.

DOCTRINE OF WORTHIER TITLE:

Check for remainder in the name of the grantor’s heirs. So, the same as Shelley’s but for Grantors! So give that future interest to O and check for merger.

So, to A for life and then to O’s heirs and their heirs:

A life estate. O’s heirs had a contingent remainder in fsa (we don’t know who are the heirs of O yet because O is alive) so it’s contingent. Then we re-write it as per Worthier title. A has life estate, O has reversion in fsa.

Purefoy’s rule:

To A for life, then to B and her heirs if she graduates law school.

Someone said that it could be construed as an executory limitation, but court says: no, it’s a contingent. If it looks like a contingent remainder, call it a contingent, and it’s subject to destructibility.

Rule against Perpetuities:

Only applies to Contingent remainders, executory interests, and vested subject to open (because they’re partially contingent).

Statute of limitations: any claims brought after the sol period, is void. Most are a fixed number of years. Rule against perpetuities is a formula not a fixed number of years.

21 years after the lives in being at the creation of the interest. If we can come up with one scenario where the interest vests only after the time of 21 years after the lives in being, then the future interest is void. Modern trend turns it into a real SOL and takes 90 years as the statutory period and waits. In common law they tested it conceptually at the creation:

• CREATE, KILL AND COUNT:

o Anyone alive in the world could be the measuring life

o Create someone in whom the interest can vest. Delay the vesting until everyone is dead plus 21 years. an interest for someone

1-To A for life, then to A’s first child who reaches age 25 and his/her heirs.

A has life estate.

Day 1: X new child for A. He’s one day old.

Day 2: kill everyone in the conveyance. A, B, C, O. That’s where the life in being was taken care of. So the 21 years start running.

Day 1 after 21 years: X is still not 25, so by the time he’s 25, it’s 4 years later than the statutory period, so the convenyance was not valid from day 1!

2- To A and her heirs as long as alcohol is not consumed on the land, then to B and her heirs.

Day one: create an heir X for A, and Y for B

Day two: Kill everyone but X and Y

Time: 21 years

X can take possession at 21but there is a possibility that alcohol was drunk on land so it’s void.

Condition tied to life in being, is valid but not tied to another person who is not an original life in being.

3- A for life, the to A’s first grandchild and his/her heirs.

Create: New child for A: X

Kill: everyone else.

After 21 years, a new grandchild could have been born from that 21 year old. BUT there’s also a possibility that it might not have been born, so the title is invalid!!! So the title is A has a life estate, and O has a reversion in fsa. The part that’s invalid, gets crossed out.

To A for life, then to A’s children who reach age 25 and their heirs.

A has a 30 and 26 children.

If it’s void as to one member of the class, it’s void as to everybody in the class even if anyone is not vested yet. So since we can create a member X , kill the two other kids, after 21 years the kid is still not 25 yet, the remainder is not valid, so it’s not valid.

If express condition is tied to life in being, it will never violate the rule in perpetuities. If the express condition is anything higher than 21 years, chances are big that it violates the rule. The farther removed from the life in being, the more chances of voiding. Anything executory has a high chance of being void unless it’s tied to a life in being.

Co-ownerships and marital interests:

In a community property state like California, marriage affects property. It belongs to both. In non-community property states like NY it doesn’t automatically affect the property rights, unless the state determines that one party needs protection as in divorce and death. The elective share, she can elect to take a statory share of a third to a half. Even property you acquired before marriage. In contrast, in community property states, all property acquired before marriage is still yours, except, valuations appreciation. Gifts remain separate property. You get protected since marriage. Community property is devisable and transferable so in that sense it’s much closer to tenancy in common than to joint tenancy.

Common tenancy: Deafult tenancy in modern trend. Focuses on intent at time of conveyance. But the problem is that lay people don’t know how to draft these and you can get into trouble. Does it have to be equal shares if the convenyance says joint tenancy? Or does joint tenancy only mean right of survivoship but not necessarily the four unities . Unilateral right to sever. NO right of survivorship. When they die their heirs inherit. Modern trend presumes people want their heirs to inherit.

Joint Tenancy: Default tenancy in common law, from O to A and B. You accidentally ended up with joint tenancy. as long as he four unities were present: (T-TIP) Time: interest was acquired at same time. Title: acquiered by same paper. Interest: each party has equal interest (both have the same fractional share, and same type of interest: fee, or tail, or whatever). Possession: each have equal legal right to possession, not equal actual possession, just equal right. So, “to Jessica and Darcy” would be as joint tenants because they have the four unities. Modern trend would say common tenants! Unless the conveyance specifically says so. In England they preferred the larger chunks of land so they didn’t want to split it as it would happen in common tenancy, they wanted land intact, modern trend focuses on presumed intent of parties which would allow for partition of land. To convey this you need to say to Darcy and Adam as joint tenants AND NOT as common tenants. Unilateral right to sever. Only works as the parties make it work. Yes, right of survivorship. You own it in whole and in shares.

rights of survivorship is key feature of this. At death the interest of decedent is extinguished, terminates. IT doesn’t pass to other tenant, that would be probate. In this case, there’s no probate, it gets terminated automatically and the joint tenant gets all the interest without going through probate. That is not considered community property. You opt out of CP and decide to hold property concurrently. IF it were community property, you would go through probate! But, you buy house for 500K if you sell house and get 1 million dollars, as joint tenants, when a party dies, you get the stepped up basis: so dead gets his interest basis to 750 (stepped up basis)+ 250 for alive spouse so if she sells she gets to pay taxes on the gain of 1.5 million minus 1 million. But if you take as community property, upon death both get double steeped up basis, so 750+750=1.5. So she would pay zero taxes on that gain.

If a property is owned jointly by three parties and one deeds his interest by will to one of the others, the execution of the will does not operate to sever joint tenancy because it only works when person dies, so since the interest extinguishes, you cannot deed it in common law.

Also, if you hold a third, and unilaterally sever by deeding to a fourth party, the party holds tenancy in common, but the other two parties hold joint tenancy as with respect to each other, but in common with respect to the fourth party. Thereafter, if Derek dies, his third interest gets extinguished and now Mercedes joins two thirds interest as tenant in common with Chris because she held before as joint with Derek and had rights of survivorship.

IN California, deeds that convey an interest that breaks the unities, must be recorded before the conveyor dies, or shortly thereafter (deathbed exception) 3 to 5 days.

To opt out you needed express language to the contrary or to break the unities. Modern trend : focuses on intent and will assume in common, because it will assume you want your heirs to get it since you’re paying that much money.

If you kill the other joint tenant, by operation of law, we turn the joint tenancy into tenancy in common so you cannot benefit from criminal act (public policy) and thus she only keeps her half. In the modern trend which is intent based, does it just apply to the creation of document (language needs to be: to A and B as joint tenants with right of survivorship, not as tenants in common), so if with this language, you don’t have the unities, do you have joint tenancy? If everyone can make up their own joint tenancy, what’s the point? Does it only mean right of survivorship or you have to have the four unities? Jx. Are all over the place.

Two to Transfer rule: Strawmen rule. To create a joint tenancy in a property where the party already owned an interest, a party had to convey the property to a third party who then conveyed it back and that avoided the right of survivorship. In the case of Riddle v Harmon: she conveys her interest to herself so her husband doesn’t have right of survivorship so he sues. Ct decided that strawman rule or two to transfer rule is no longer needed because it is based on the anachronism of the livery of seisin and we don’t do that anymore so ct decides to do away with it. Split Jx’s between two to transfer and Riddle.

So to sever a joint tenancy in Ca the rule is that the deed must be recorded prior to a party dying (or shortly after death is deathbed exception) because otherwise you have the peril of having someone put away a conveyance to herself as common tenant to screw husband if she dies first and telling only her daughter, but hiding the document if he dies first so that they can have right of survivorship.

California has recently enacted a Community property with rights of survivorship: so you get the double stepped up basis BUT they don’t go through probate because it acts as a joint tenancy, so take all property in California as this type. Email Roy to ask if property in trust is a joint tenancy, CP with rights of survisorship or simply a trust, no one owns.

Tenancy in entirety. Only applicable to non-community property states. So, not in California. Joint tenancy with a fifth unity of marriage. Default convenyance if given to spouses. There is a right of survivorship. NEEDS PERMISSION OR CONSENT OF THE OTHER PARTY TO BE ABLE TO TRANSFER THEIR INTEREST. No unilateral right to sever, only when you sever the fifth unity of marriage.

Hypo: Dan owns minnessota acres. He gets married and conveys to Dan and his wife as joint tenants. Under common law, unities trump intent, since Dan owned it before, the unities are not there. Common law you needed a strawman, or two to transfer. Under modern trend, it is about intent and as long as he used the right words, he could do it because two to transfer rule is abolished. Time and title are broken. Most jx. Say you don’t have to have the same share either. Only possession, and that was the only one we had in tenancy in common, so we’re down to a tenancy in common with right of survivorship.

Riddle case: wife who conveys her joint interest to herself as common tenant. Husband therefore is screwed, by having to go through probate. Ct does away with strawmen rule as an anachronism.

Redemption: period in which a person can, after a foreclosure sale, come up with money and get their property back! Sometimes up to a year. So party who buys in foreclosure, does not get fsa, gets a fs defeasible.

Harms v Sprague: joint tenant who mortgages his interest in the property. Does is sever the unities and thereby does it end the joint tenancy? Common law took the theory of title, and so when you pay off the money, title goes back to owner, so in reality that severed the unity. The document transferred title to bank. Modern theory takes the lien theory, where the bank uses the property of the joint tenant as a security, tenant gives the future right to sell and get paid IF the joint tenant doesn’t pay. So title never passes, and because tenant died, and he was still joint tenant, and his rights extinguished and the mortgage is GONE! The lien theory takes the modern trend test for opting in as the test to opt out because it’s all about intent (by using the right words clear intent) and most people don’t think that executing a mortgage affects title, then there’s gotta be a clear intent or title doesn’t pass. So, if we were using common law, when he dies, the debt attached to his interest would go down with the common tenancy he created under the title theory. But since the ct used modern law, the mortgage died with the person. But shouldn’t it depend on his intention that the mortgage be paid? Ct says no, we’re going back to common law here and the right of survivorship takes over and interest, along with mortgage, are extinct.

Spiller v. Mackereth: Should one co-tenant who is possessing 100% have to pay rent to the other tenant? No, you have the right to possess, unless there is an agreement or there’s an ouster: What’s ouster: Common law: when a cotenant has taken your possession and you physically go down and try to enter and possess the property and you are denied the right to enter. Modern trend says a letter saying vacate my half or pay rent.

A cotenant can lease his portion of the estate and then the lessee steps into his shoes as far as all the other rights and duties.

Rule of the case: tenants in common own per my et per tout and has equal right to occupy, and unless the one in possession denies access to the other or there is an agreement to pay rent, he doesn’t have to pay rent.

General rule of adverse possession between co-tenants is that you need to give actual notice to the other co-tenant so that it constitutes open and notorious, otherwise, how would he know you’re ap by claiming title rather than just possession?

Minority approach is that anytime one co-tenant goes into exclusive and sole possession of all the estate, he has to pay rent.

What about a lease: Common law, a lease broke the unities and you became a tenant in common. In modern law, you are still a joint owner. So what happened when you die? Does the lessee get kicked out? Swartzbaugh case v. Sampson: husband leases joint property to boxing promoter, and wife opposes it because of drinking and women it would encourage. Can she prevent it? No, cotenant even joint tenants can transfer his interest. Early common law would say that it severs one of the unities, and become common tenants. Modern trend which the ct takes says that one joint tenant’s execution of lease does not sever the joint tenancy because he did not intend to sever the joint tenancy. IF they were tenants in entirety it would because they both have to approve it.

Wife complains that she’s afraid he will adverse possess her interest. Ct dismisses that because as a tenant his rights are subservient to hers, and the ap rules are more strict because it requires actual notice. So, now she knows, she could sell her share, partition, or we could wait until he died which she did and the lease would extinguish along with his interest. But she did renovate the lease after a change of heart and mind. She also could use ouster to force him to pay rent by trying to enter the area and possess as is her right! Rent would be half of the fair market value. He could use his payments as credit for his ouster payments against their payments under the lease, depending on whether he believed that he was getting the sole and exclusive right to possession. If he was paying less than market value, he should have understood he was only getting husband’s right of possession and had no right to the wife’s. She can also sue the co-tenant for an

Accounting: share of the profits. You only get your share of actual receipts. If he leases at market value he needs to account to her for half. BUT if he doesn’t lease at market value, which means he only rents his right to possession, must he pay half the rent? NO, the general rule is that where a cotenant leases out only his or her share there’s no duty to account. How you generate the profit may affect it (cutting trees for instance may not apply because even if you cut only your share of trees it affects property values there). So she needs to get ousted to be able to get half the market value. So she would get 500 if FMV =1000, and husband gets only 450. If guy is paying 950

Contribution: YES> cotenant is entitled to contribution to anything that protects title (carrying costs: liens, mortgage payments, taxes).

• Improvements: NO>Generally improvements do not entitle you to contributions, unless agreed to by all.

• Repairs: NO>Cts usually don’t want to make judgments as to what constitutes a necessary repair, so even repairs may not be paid, not even necessary repairs.

• If we have accounting of partition action, the tenant who made repairs or improvements will get credit for that. Any improvement gets given to improver and if not physical partition, then the one benefiting by the improvement of the other, they get to pay an owlty. If sale partition, the added value goes entirely to party who improved or repaired. Or in kind, you get land where improvement is, and other party gets oulty.

For two of the three, (common and joint tenancy) anyone tenant can request partition without permission of the others, but not in by the entirety. That needs to be two partners.

Types of partition:

• Physical partition is the preferred kind of partition as opposed to

• in kind (sale)

• UNLESS it is 1- impractical AND 2- it would seriously prejudice the interest of the cotenants. But lately, all partitions have been in kind (sale and assets are divided. So this is the de facto rule, but not the rule. It used to be farms that could be partitioned and someone could stay on it, but nowadays, the default property is a house which is much harder to partition, hence why partition by sale has taken over.

If tenants no getting along they can seek:

• partition

• accounting

• ouster to get rent

But then other tenant is entitled to get contribution for carrying costs. Unless one party has full possession of the land. In that case of exclusive possession one cotenant does not have the duty to pay rent to the others, but he also doesn’t have right to seek contribution for carrying costs. Assuming benefits exceed the carrying costs contribution they are seeking.

Non-free hold estates: leaseholds. Tenants and landlords: automatically a future interest arises in the owner when these are conveyed. YOU DON’T HAVE TO PAY TO BE A TENANT. WHEN FACT PATTERN SAYS SOMEONE IS SOMEONE’S LAND, AND THEY’RE SUBSERVIENT, THERE’S A TENANCY, NOT AN ADVERSE POSESSION.

• Term of years: defined fixed period of time. The last day is calculated on the first day. No notice of termination is needed to bring estate to an end because it is given already. One single fixed term.

• Periodic Tenancy: For a fixed period which will automatically renew absent proper notice. Usually half a year notice for tenancy of one year. For less, you need notice equal to length of period but not to exceed six months notice. Notice must terminate tenancy on last day of period not the middle. Death of landlord doesn’t affect.

• Tenancy at will: No fixed period can end anytime and endure as long as both are ok with it. Easy to terminate by EITHER of them. Death of either can terminate. Common law would automatically terminate it. No notice needed. Expressly or by implication. Modern trend has been to give thirty day notice, and in California, you get 60 days notice, which is more than month to month tenants get! This applies to both sides. Also, if he pays rent after death, he could be construed as a holdover and a bootstrapping into month to month will ensue. But in the Garner v. Gerish the ct shifts to a contract approach which is focused on intent (parties can do whatever they want as long as they clearly express their intent) and in this case they freely contracted to have the right to terminate only on tenant but not on landlord)Therefore, Lou is arguing this was a life estate determinable. IN the past he would have to go through livery of seisin and since we no longer do that, we will go through contract and it says that he has a right to unilaterally terminate. Under common law, he would be bootstrapped as periodic.

o Common law: no notice.

o Modern trend will bootstrap it into periodic month to month.

o Death of landlord affects.

o It is possible as per the Garner v. Gerish case, to have a contract that gives the right of termination to a tenant without reserving the same for the landlord, in which case it becomes a life estate determinable, not a tenancy at will anymore. Very modern trend: look at intent.

How do you create these types? By language (expressly) or impliedly (by actions or behavior). All can be created expressly: written or oral. If statute of frauds applies, you can only create it in writing that complies with statute of frauds: a writing signed by party to be charged. If greater than one year, it must be in writing. If less than one year, it can be oral.

So:

o Term of years:

▪ More than one year: must be in writing

▪ Less than a year: could be oral. Doesn’t have to be a year. Death of either doesn’t affect it. Your estate gets it and pays it.

o Periodic: conduct or parties can give rise to periodic. Conduct plus payment. If no express term but rent is paid and accepted you can bootstrap yourself into a monthly lease.

▪ A year or more: must be in writing

▪ If each period is less than a year: can be oral

o Tenancy at will;

▪ Can be in writing or not. Either party could terminate at any time.

YOU CAN HAVE A TERM OF YEARS DETERMINABLE AND A PERIODIC DETERMINABLE, BUT NOT A TENANCY AT WILL.

Proper notice: for term of years, automatic. You had notice on first day. For periodic you can only terminate at last day of period and notice has to be given at least one fixed period in advance of that day. When years it has to be a six month ahead term. So, if term is month to month, then you cannot give notice on Nov. 16th that you will leave Dec. 31st.

Always analyze the creating language and give the kind, when to give notice acc. to common law and under modern trend, and then to end when.

So, it’s a periodic, month to month, give notice by March 31st to end April 30th.

BEWARE of no proper notice! Even if you give notice and it doesn’t qualify because it’s defective, it could be construed as no proper notice at all and you’re liable for all the rent until landlord re-rents! Under modern trend more kind judges, they may give effect at the soonest opportunity possible. Some will construe as contract and landlord has a duty to mitigate. So, on month to month, you give notice on November 16th you’re leaving nov. 30th. Doesn’t qualify as proper under common or modern. In that case, you may be responsible for rent until dec 31st, under common law, or December 16th under modern trend or you may be responsible until such date as the landlord re-rents!

• Modern trend is thirty day notice to terminate at end of term. So, for a year term, you can notify also 30 days ahead. It reduced amount of notice but still require that notice be on last day of term unless it’s a month to month in which you can terminate any day. So common law, month to month, if you decide on march 24th you’re leaving , you’re still liable for rent until April 30th. Modern trend, you could leave on April 24th. BUT THIS ONLY APPLIES IF MONTH TO MONTH.

What if two parties own it as joint tenants. Then if one party only leases it, at the end of that life estate, since it extinguishes, then the lease also extinguishes. So, death may affect it! So it turns a term of years and periodic tenancy into determinables.

An arrangement that resembles a lease can be a license or a life estate or a loan. So you need to check what it is because a lease creates a relationship of landlord-tenant which carries some duties, liabilities and remedies that do not attach to other relationships. A lease is a conveyance that transfers a possessory estate in the land and it also is a contract that creates rights and duties. So they’re pretty much treated as contracts as far as nonperformance, duty to mitigate, etc. Common law view of dirt as land, modern trend view of building as land.

Statute of frauds: must be in writing especially if over a year. Some allow oral leases for less than a year. Those that do not, hold that plus payment create Oral leases automatically creates a periodic tenancy that is not subject to the statute of frauds.

Form leases and bargaining power: usually contracts of adhesion are used, but that may mean lower costs for all involved since less cost of drafting K’s.

Hypo: L leases to T as long as L desires. Opposite of garner v gerrish, almost all courts have kicked back into common law and said that if this a tenancy at will, BOTH parties should have right to terminate. Unconscionable to have all the power on the landlord. But under garner it seems to be ok to have all the power on the tenant. Modern trend: contract based, intent based. So, you as a tenant get certain rights and you cannot contract out of them, even if you want to.

Tennancy at Sufferance: Holdovers after a term of years. Not a real tenancy. Creates an option for the landlord. It’s a new offer to extend the tenancy. AS landlord, you have two options.

• Eviction (plus damages).

• Having tenant as holdover tenant and landlord can elect to extend for a term of years equal to the previous term, but no more than a year. Modern trend si more pro-tenant and will construe as month to month, more than likely.

If you don’t evict and treat tenant as trespasser, you impliedly accept tenant as holdover. Holdover gives rise to periodic tenancy. But of what length? Two views:

• Whatever way rent was computed on original lease. (so, if bimonthly, it creates a tenancy of a two month period, not on how it’s paid: annual rent of…)

• The length of the original period.

In BOTH cases, the maximum is one year. Subject to same conditions as original. Also, a fairly common approach is that rent is double for holdover tenants. Some say that even lower than original rent if market value is lower!!!

• Crechale case: term of years for 5 years. His new building was not ready, and asks if he can stay longer on a month to month. From here on facts are not clear. Tenant says he agreed, LL says he did not agree. Letters go back and forth. Lease ends and tenant stays. Landlord has two options: eviction of trespasser, or he can keep as a holdover. He accepts payment and so he impliedly consented to tenancy in sufferance and a new lease has started, and it’s a periodic lease. What term? Different Jx. Will imply a term of years, but most will say periodic monthly. In this case, the court decides that the period should be month to month. When LL rejected him he became a trespasser so he was not a holdover. When he sent a check and LL accepted, T was in effect making another offer which the LL accepted by cashing it and because it was the T’s offer, then it was a month to month. He could have evicted but chose not to. LL sent mixed signals, so he rejected the holdover tenancy which could have given him a year of term tenancy. Most courts find the doctrine very harsh, so they find ways around it. If you have a reasonable explanation why you had to stay, they will mostly bootstrap into month to month. Building not ready is not good enough.

Federal Fair Housing Act: 1968

Prohibits discrimination by race, color, sex, handicap, religion, national origin, familial status. You cannot not rent or sell because of this, you cannot advertise anything that says you are discriminating on these basis, you cannot use this basis to deny the availability of a property, or to discriminate against someone who will be living with renter or buyer, or change terms and provisions and services. Handicaps have the right to change property as long as they returned in same condition as received. You can have an action for these and ask for damages including punitive, and maybe even the US AG and criminal penalties. Some properties exempted, like one family houses if owner has less than three, or a room or residency where no more than four families live and the owner does too. But not exempted from the advertising part of the statute. Also, only if you don’t use real estate agents or brokers. Prima facie case: no discriminatory motive needed, just show that the effect was discriminatory. Then burden shifts to defendant, to show that there was no reasonable alternative and there was a rational, and necessary business purpose. Burden then shifts to P to prove that business purpose is pretextual.

and civil rights act of 1866: all citizens of the us shall have the same right in every state and territory as is enjoyed by white citizens thereof to inherit, purchase, lease, sell, hold, and convey real and personal property. Applies to everyone including mom and pop cases, but does not include advertising.

So, CRA only discrimination based on race. Fair Housing Act covers much more than the CRA. Much broader. FHA covers sex, familial state, handicaps, national origin, etc. It covers also, publication of ads, contractual terms, etc. PP is to allow for an equal opportunity that encourages integration since we cannot mandate it. ALWAYS CONSTRUE THESE TWO BROADLY! Statute does not permit discrimination even if to allow for integration: HUD running housing complex and reserving some units for whites in order to prevent white flight. Ct says you cannot do that.

Hannah: Holdover tenant has not left and new tenant sues LL because he says he needs the possibility of entry. Ct says that lease is a conveyance of the right to possess and no one has a superior right to you, doctrine or quiet enjoyment: no one with superior right will come and bother you. But does the LL have the duty to give you ACTUAL possession? Depends on what approach: even split.

• English rule: ll has the duty to give you actual possession. Property needs to be open for possession. Common law. FIRST DAY ONLY!

• American rule: LL cannot control the actions of holdover tenant. AND tenant can contract to protect his rights to entry. And New tenant has standing to sue because new tenant has the legal right to possess! This however doesn’t go to economic efficiency which would be if we put the burden on the LL because they can spread the risk better by charging tenants more to spread the risk of a lawsuit against holdover tenant.

QUIET enjoyment has not been breached by the mere knowledge that there is someone with superior right. There has to be an assertion of the right.

Lease: entitles you to the legal right to possession.

Can you contract out of your duty as LL in an English rule Jx.? Should it depend on bargaining power and sophistication of the parties (as in commercial v. residential)? Should we be paternalistic and not allow a residential tenant to contract out? What about reasonable expectations of tenant who naturally thinks that actual possession is what comes in a normal lease. So, you cannot contract out of a duty to convey legal possession, but you can do it for actual possession.

If Wendel is adverse possessing Dan’s land, he can lease the land to Asa. Is it true and absolute? No, but he can still transfer it to her. Until such time as Dan comes and asserts his superior right to possession, the covenant of quiet enjoyment is not broken. It just has to be a relative right to possess.

Ernst v Conditt: wife and husband lease land to Rogers to build a Go-Cart track. Rogers operates the thing for a month or so and sells it to Conditt who now operates it. They do so with a contract that amends the original K and then rogers says that he subleases the premises to Conditt but he remains liable for the performance of the lease. Conditt also signs and accepts the sublease. Conditt pays rent but then stops. Issue is whether he or Rogers are liable for unpaid rent. Ernst sues conditt on the theory that the agreement is an assignment and he is liable to Ernst. Conditt says the agreement is a sublease and Rogers is liable, not him. Lower ct finds for Ernst. Conditt appeals.

Ct says that despite the language of the K, the thing is not a sublease but an assignment because

• under common law: if the instrument transfers the lesee’s estate for the remainder of his term, then it’s an assignment, but if the instrument only conveys a portion, even for a day less, of the estate remaining, then it’s a sublease because the lessee retains the right to reentry and a reversionary interest. This is regardless of the its form or the parties intention.

• Modern trend: ascertain the parties’ intention. Read the contract in light of the surrounding circumstances.

In this case, under both common law and modern trend we have an assignment because he gave Conditt the rest of his interest (thus under common law that’s an assignment), and also when he sold the business, he did not keep a reversionary right, Conditt paid all the rents, so they must have intended an assignment.

Something interesting the ct says is that neither a sublease nor an assignment liberates the first tenant from his responsibilities. Under an assignment, the privity of estate might be terminated but not the privity of contract. A sublease affects neither privity. WHAT IS PRIVITY OF ESTATE? The party who has the right to possess on the last day of a period and will transfer the legal right of possession to another party, those two parties are in privity of estate. It’s the equivalent of privity of contract but when you look at lease as conveyance. So lease as contract gives rise to privity of contract. Lease as conveyance gives rise to privity of estate.

So judgment below stands.

So there are two types of privity: contract and estate. Ernst sues Condit on the theory that he is in privity of estate with him.

What happens if a lease is ended prematurely and there is a sublease or assignment?

• If it ends because LL did it due to a breach from lessee, then LL is entitled to possession as against the sublessees and assignees.

• If it ends because original lessee surrenders it, then the LL and assignee or sublessee are in privity of estate and the get possession as against the LL.

Landlord’s approval does not break the contract privity, unless there is a novation, but a LL is not likely to enter into a novation.

Also, if you lease to another tenant and reserve the right to re enter if something happens, then you have not relinquished all your rights and therefore, even if it was for the duration of the lease, this could be construed as a sublease. BUT if you look at intent, since you don’t expect that the other person would default, or you would not have entered the agreement, your intent was to assign!

You can create a third party beneficiary by having the subtenant agree in a contract with tenant one that he will be liable to landlord. In that case, the subtenant will be in privity of contract with subtenant, even if he is not in privity of estate.

So, see if they were parties to the same agreement or if second tenant assumed the liability to the third party beneficiary.

In effect, if it’s a normal sublease, there is no privity between landlord and sublessee. But if there is an assumption of liability there is privity of contract only. In an assignment, there is no privity of contract, but there is privity of estate. You can of course, combine and add privity of contract by having an assumption clause on the contract, you can also have the reversion interest in the original tenant and then is it an assignment that gives rise to privity of estate between LL and T2?

Assumption clause automatically creates a third party beneficiary and you can have a privity of contract between the subtenant and landlord, but it doesn’t change privity of contract between LL and tenant. Only novation changes that relation and then you have privity only with a new tenant.

Problems on page 393:

2- L cannot sue T1, he can only sue T. No assumption clause. But T can sue T1 because there is privity of contract and estate. IN second part of question, T1 assumes a covenant to pay the rents. In this case, LL has a right to sue t1 then because now L is a third party beneficiary and is in privity but LL can sue both as long as she doesn’t recover double.

b. Under doctrine of Subrogation, you can say that T can sue anyone that T can sue to recuperate if he pays. He steps in L’s shoes. Also, T1 cannot sue T2 under doctrine of subrogation because neither L nor T1 can sue T2, but he can sue him under privity of contract.

Approval Clause: Construe it narrowly. If it says to get permission for subleases, you don’t need it for assignments. So you need it to prohibit both things because it goes against the general public policy of encouraging productive use of land. Protects LL? Maybe. Rule in Dumpfors case: if it’s a sublease, it goes with the land, but if it’s an assignment it needs to be reinserted so you need to specify that it has to be reinserted. Modern trend, the parties expect it to run with the land.

Kendall case: San Jose airport case. Approval clause. LL denies approval because he wants to make more money on the new lease of the land as well. Can a landlord be arbitrary in withholding consent for new tenant? Common law says yes, you can do whatever if you have the clause. Property based conveyance. Modern trend , contract says you have to act reasonably because you have an implicit duty of good faith so you need to have a commercially reasonable reason to deny approval. Jx. are split. If you’re in Modern trend jx. can you contract out of your duty? Would it matter whether it’s residential or commercial due to bargaining power and sophistication? On a residential lease they are more likely to follow common law rule that ll can contract out assuming an approval clause. California upholds Kendall ruling that on commercial leases you require good faith . On residential leases you can withhold consent arbitrarily.

Essence of the lease: conveyance of Possession. He’s BIG on this! At a minimum legal possession and the doctrine of conveyance of quiet enjoyment.

Landlord’s remedy for breach:

LL has to show material breach and right of reentry. Modern trend the clauses are dependent so it shifts the legal right to possession to LL.

Vacated premises are implied offer to surrender. Common law: no duty to mitigate. Modern trend : yes duty to mitigate. LL bears burden of proving they mitigated. Some courts place a total bar to recover if you cannot make that proof.

There can be implied acceptances of the offer to surrender. Careful that your mitigation is not construed as being for the benefits of the LL because it will be deemed as an implied acceptances. If they accept more money and put it aside for tenant is not acceptance. Also to what extent they remodeled for new tenant. When lease expires and after a reasonable time you may be able to take the money on escrow.

Berg v Wiley: Lease to restaurant. She gets an assignment from her brother. The k had an approval clause for remodel and he kept reentry right if she did any remodel without approval and she has to run restaurant and keep premises in good working order. She remodels without approval and she also gets cited for health violations. He locks her out eventually after some discussions etc. She sues and wins and he appeals. Common law: one party’s material breach did not absolve the other party from their duty to perform under the agreement. So if she doesn’t pay or otherwise breaches, it doesn’t mean that LL can go and take possession. Your only option was to sue for damages and/or ejectment. LL’s duty to perform was independent from tenant’s duty to perform. So, LL would usually stick a clause called right to re-enter. Modern trend: now the provisions are being deemed dependent. So material breach by one party absolves the other party from performing, so LL could stop providing right to possession at that time. Always smart to add the clause anyway, because not every Jx. has this. Before you kick him out you need to show LL has the legal right to possession. But even in the presence of a clause or re-entry you need to show material breach. Even if you do have the legal right to possession should he be able to kick him out? Can you use self help? Common law: yes, as long as it’s reasonable force. What’s reasonable force? Fact sensitive. Don’t like it because of potential for litigation. Modern trend: No self help. Go to court: summary eviction proceedings. Not ejectment. So the issue is who has the legal right to possession. Arguments about what should be the scope. The notice is three days. If ct decided for tenant, he needs to move out in no more than a week. In practice, it takes 114 days on average.

Splits even in common law approach: usually as long as reasonable. Others as long as is peaceable. But again, we get fact sensitive but we eliminate the potential for violence. Wiley argues that only when there is actual or threatened violence there should be damages.

Go back to this case and read it because it has more rules in it that he didn’t talk about.

Sommer v. Kriedel:

Tenant backs out of two year lease because his marriage plans fell through. He sent a letter explaining what’s happening. IT’s an OFFER TO SURRENDER. Written EXPRESS OFFER. As a landlord do you have duty to accept? No, not in common law or in modern trend. Although in modern trend it creates a duty to mitigate. LL could have leased to third party but doesn’t. Issue is does a LL have a duty to mitigate? It depends: Common law views it from property perspective of lease: tenant still has possession and LL has no rights to get someone else to posses! He gave Tenant legal right to possession for block of period and he doesn’t care what he does with it. No duty to do anything. Common trend: views as contract and implies a duty of good faith. So LL has duty to mitigate due to the ongoing relationship established by contract. Constant interaction: care for the other, help the other party, etc. Fair dealing. Much more than a one time conveyance. So LL has to try to help the tenant by reletting the land and mitigating losses.

Letter effectively terminates the lease and tenant may be liable for some remedies under anticipatory repudiation. And it also gives landlord right to possession. If they accept the offer to surrender, is tenant liable for rest of lease? No, the LL accepted surrender you’re only liable for past rent. What if tenant just leaves without saying anything? tenant vacates (leaves jx and never intends to return) so it’s an implied offer of surrender . If LL relets for the landlords benefit, it’s an acceptance of the offer.

5 year term. 6 months have gone through and has vacated. So LL almost always rerented. Now, large institutional LL’s and electronic tracking, you can let the aprtmemt be empty and after two years you can bring suit. So that’s an incentive for LL not to mitigate. So, prices will go up because supply will decrease. So, that’s why modern trend gives LL an incentive to mitigate and it imposses the duty to do so. You can reject offer of surrender but nevertheless mitigate. Does the re-letting have to be for the LL’s benefit or for the tenant’s benefit? If you relet it does it release the original tenant from his obligation? As a general rule it does not constitute a novation. Tenant is still liable because it is a de facto sublease or assignment.

BUT if you accept surrender and mitigate, it constitutes a novation because LL assumes possession again.

If the re-lease is for the benefit of tenant, any less rent is still the responsibility of the original tenant. Any more rent goes to the tenant, so as LL you would be motivated to accept surrender at that point And turn it into a novation.

When the LL doesn’t expressly accept, but impliedly accepts surrender by leasing in his own benefit, you have implied acceptance and cts will construe as such. In that case, it severs the duty of the original tenant. So if you want to keep the tenant on leash, you rent for exactly the same money so that the court construes it as for the benefit of the original tenant and not for yours. Two key variables in whether tenant relet for his or the tenant’s benefit:

• term (you only lease the tenant’s right to possession)

• If there’s a bigger amount you have to set it aside for tenant

• Substantial remodeling for new tenant will be deemed as if you’re doing it in your benefit so you can keep the tenant there.

Why should LL do it? Mitigate? Because he’s a pro at it and is in a better position to do it.

If you have several units empty, do you have to relet it before or after other ones? You have to show it like any others because land is unique. Reasonable efforts to rent that unit. Treat like any other units. In most situations, the burden is on P to prove he did not mitigate. But in this case, the LL has duty to show he properly mitigated because he’s in the best situation to prove it. Early cts, it was total bar to recovery. Modern trend only partial bar to recovery only affects the amount.

Landlords who breach:

Reste Realty v. Cooper: property leased that floods when it rains. There’s an original lease and a year after that, they signed a new lease for five years, even knowing that it floods but they believed agent’s promise to fix problem so they sign lease. Tenant abandons, landlord doesn’t mitigate and sues the Tenant after two years of empty place. Tenant doesn’t pay rent.

Issue was whether there was a constructive eviction under a breach of the covenant of quiet enjoyment: LL gives you the right to enjoy your property without being disturbed by THE LANDLORD OR ANYONE WHO ACTS UNDER AUTHORITY OF LL OR SOMEONE WHO HAS A SUPERIOR RIGHT TO POSSESSION THAN THE LL. Acts or omissions of the LL only, not a third party unless agent of the ll or someone who owns the land if LL doesn’t. The problem has to reach the level where the tenant is evicted (physically or constructively). Essence of the doctrine is that if you’re ousted in any way, you are relieved of your duty to pay rent. At common law, the duties were independent so you had to continue paying rent even if evicted because their breach did not excuse yours. Modern courts now view the clauses as dependent. And cts view that some things amount to the same effect as an eviction, but in order to be eviction it has to be the LANDLORD: so go to he had a duty, he breached it, and it rendered the premises (learn these words) substantially unsuitable or interferes with the enjoyment of the premises for the purposes for which it was leased, you have to let the LL know there’s a problem and give him time to cure the problem (opportunity to cure). Then you can leave and claim constructive eviction. (elements of constructive eviction) Has to be at that level, very serious. If it’s not that serious, you can sue for damages, but you cannot vacate. Even then you have some risks. If you did not leave within reasonable time, you may be deemed as waiving it!

To prove breach you have to prove duty. There are two types of duties: express or implied. Common law assumes you lease the land only so very few duties were implied in the landlord.

Now: Duties of Landlord: implied (memorize these for test)

• disclose latent defects (known or should have known to the LL, tenant cannot see them upon inspecting) he has duty to inform. In our case the LL knew about it. But by second lease, T also knew about it.

• Maintain common areas: driveway was common area.

• Undertake promised repairs: in our case the T had a promise by agent to fix.

• Abstain from fraudulent representation of condition.

• Abate immoral conduct or other nuisances.

And for short term furnished leases: hotels and boarding houses, the duty is to provide

o Implied duty that premises are habitable. (which of course implies heat!)

You can also have contractual explicit duties such as providing heat or water, etc.

***Doctrine of constructive eviction is only used as defense against a LL asking for back rent. **** you cannot sue LL under it.

Historically you as tenant had to prove that condition was permanent. But ct in this case construed permanent as “regular reoccurrence”. AND if you stay in possession and stop paying rent, you cannot invoke doctrine, you have to leave, otherwise you’re not evicted! Most ct say you have to leave bc if you don’t, it’s not that bad.

What’s the scope of the doctrine of quiet enjoyment and can you contract out of it? Residential and Commercial. General rule is that this covenant is IMPLIED! Went with the duty to provide legal possession. You cannot contract out of it. This is the minimum a LL has to do.

Most tenants don’t know about it, and would assume certain things and LL would not put it in lease, so this really is not particularly protective of tenant. Especially in the case of a shortage of housing. So cts stepped in and give the tenants more protection and created the illegal lease doctrine: (don’t use this in exam except briefly) The contract is illegal and tenant doesn’t have to pay rent, because the housing unit fails to comply with housing code and statutory regulations about what a house needs to have. And it’s called a tenant at sufferance. Court will bootstrap into tenancy at will. Rent will be determined at reasonable fair mkt value in light of what’s wrong with it. So, you don’t have to vacate, but it is only a defense when LL sues for non-payment. Exceptions: one day doctrine (1- only applied to conditions that were present before lease, not after lease), 2-substantial violation of housing code or statute, not minor; and 3- LL has to have actual or constructive notice.

Hilder v St. Peter: woman who rented apt. from slumlord, where everything is so bad and she has children and one grandchild, and it’s dangerous for kids, and she fixes some of the things. LL never repaired what he promised to do. She stayed and sues LL and asks ct to explicitly give rise to a doctrine of implied warranty of habitability. Tenant’s duty to pay rent is contingent on Tenant’s duty to provide and maintain habitable premises, (as measured by codes, mostly, health and safety of tenant, third reasonable person) but still LL has to be constructively notified and given time to remedy. Completely flips common law assumption of dependable clauses and makes them dependent. Not a one day doctrine unlike doctrine of illegal lease. Could be good for LL because economically L is in best position to make repairs and to increase value of your land and to spread the cost among all tenants who will enjoy it. If T made repairs, they would probably be bad because even if they know how to make it, which is doubtful given city dwellers, there’s less incentive to make them well because T will not enjoy it.

It doesn’t matter whose fault it is that there is a breach: no fault based. earthquakes can make water not come to the house and lanlord is still liable. Garbage collectors go on strike and for 3 weeks it doesn’t get picked up. It is a breach even if LL is not guilty. So LL has to hire a contractor to remove garbage or reduce rent. Exception: high crime area and ll has taken reasonable steps to reduce the risk. And , if tenant causes problems you cannot hold LL liable.

So, issue becomes: What are habitable premises? Evolved out of illegal lease doctrine, so usually jx. says that the health and safety of the tenant at at least a minimal level. Housing code compliant. Reasonable standard: whatever the reasonable person would deem habitable. So Jx define differently based on those factors.

So, if you notify, LL doesn’t fix it, what are your remedies? Standard contract remedies:

• RECISSION: TERMINATION

• REFORMATION:PAY LESS

• DAMAGES: WHAT WERE YOUR DAMAGES FROM HAVING TO LIVE UNDER CONDITIONS:

o PUNITIVE: WILLFUL AND WANTON DISREGARD FOR TENANT’S SAFETY.

o COMPENSATORY: ACTUAL DAMAGES, DISCOMFORT AND ANNOYANCE, PAIN AND SUFFERING, EMOTIONAL DISTRESS, ETC.

A handful of Jx have adopted this doctrine. Your fall back is covenant of quiet enjoyment. There are some exceptions to inhabitability. NOT APPLIED TO COMMERCIAL LEASES. There’s a parallel doctrine called the doctrine of fitness for a particular use. If you don’t have this, your fallback is covenant of quiet enjoyment.

If as a tenant you fix the problem after giving notice, you can deduct the cost from your rent. Only one time you can use self help as a tenant under modern trend, but only after you gave notice.

DOCTRINE OF RETALIATORY EVICTION: CHILLING EFFECT ON PEOPLE ASSERTING LEGAL RIGHTS IF LL CAN EVICT AND TERMINATE IF YOU assert your legal rights under doctrine of habitability. If LL’s actions fall within first six months to terminate or increase the rent, gives rise to presumption that it was done to retaliate. If he can rebut, he can go ahead. If he cannot, he cannot go ahead and undertake changes. If it’s done after six months, you as tenant have burden of proof.

LAW OF SERVITUDES:

What’s an easement and what’s a license? Easements should be contrasted with licenses and profits.

Five ways to create easement:

• In writing expressly by conveyance. All others arise by operation of law. So they all violate the statute of frauds so not all jx’s recognize these doctrines.

• License plus estoppel

• Implied easement based on prior existing use and at the time of severance it needs to be apparent,( AT TIME OF SEVERANCE) continuous and necessary. Target facts: Single parcel of land with a Quasi easement and severance: part of the property is being used to benefit another part of the property before the severance. Law then assumes you have an easement because the parties intended for you to keep it and you just forgot to put it in as a reservation. She should have realized it was necessary and so it’s based on the presumed intent of both parties: new buyer should have walked the land and known of condition and she should have been more forceful and said something. If the implied easement is for the grantor is an implied reservation. If the implied easement is for the buyer, it’s an implied grant of an easement. As the grantor, you’re in the best position to create reservation, but you also have an incentive not to divulge easement. So common law will say it needs to be “strict” necessity if it’s an implied reservation. How much of a financial burden would it be if it were not granted by ct. If not too much money, then ct will not grant it. If it’s an implied grant, cts looked at reasonable necessity. Modern trend: abolishes differences and says that necessity and financial burden are just some of the things they will look at when deciding to grant. They seem to blatanly just look at financial burden.

• Implied easement implied upon necessity: KEY CONCEPT IS BEING LEGALLY LANDLOCKED. Single parcel of land, severance and now you’re landlocked. The example of the book on page 696. The easement can only be implied upon the parcel the severance of which caused the landlock. So in this case, parcel 4. Not necessarily the easiest or closest. Some jx. say he should pay for it. Some others you get it by operation of law. The board example of greenacres sold half to Gemma is not applicable because the land was not landlocked. He could have walked over boulders! Also, the beach front property example: common law: you’re not landlocked take a boat. Modern trend: they look at practical landlocked. So it begins to look like implied easement by necessity. Any public waterway. YOU CANNOT OPT OUT OF THIS IMPLIED EASEMENT! EVEN BY CONTRACT. Public policy is against landlocked because it renders property unused.

• Easements: “is the right to go on someone else’s land and use it in a way that would otherwise constitute trespass.”(Wendell’s definition) positive when they give you a right to do something on someone else’s land, and negative when they give you the right to restrict some activity in someone else’s land. Classic easement is for egress and ingress. Non-possessory property interest: allows you to use only not to possess. License (doesn’t have to be in writing) is the same thing but it is inherently revocable. Easement is presumed irrevocable. So, an easement is a more substantial property interest so it should be created by a writing that satisfies the statute of frauds and meets MATERIAL PROVISIONS property, parties. But licenses CAN be created in writing. That’s where the mess comes! So it becomes a question of intent: how irrevocable did grantor want it to be? Anything inconsistent with the granting of permission is considered a revocation. Easements are presumed to be fee simple. If you grant permission orally, he’s only a licensee, you’ve given him a license only. Even if it’s in writing, the intention of the parties rule, what would the reasonable parties have intended by writing this. If person has the right to take stuff off the land it’s called a profit: license or easement coupled with right to take something off the land. Typically associated more with easements and person pays for the right. Make sure the easement is clearly determined because once it gets determined or used, that path is possessory and has possessory ramifications and may be harder to move, so make sure you set it. Sometimes it’s free and sometimes it’s paid. Easements have two sides: benefit (dominant estate: runs with the land. Or it’s a person and benefit runs with the person) and burden( servient estate). In our example, Dan has an easement in gross and wherever dan goes, it goes in his back pocket and he can always use it. Darcy, on the other hand, owned her land, so when she moves and sells to Deric, she cannot cross anymore, but Deric can.

• Two components to easement: burden and benefit. Burden on servient estate and benefit on dominant estate.

• Licenses are personal, so death of a party will automatically terminate it.

• Can be created:

o 1-Expressly: writing that fixes the location. If it doesn’t, ct usually gives grantor rights to fix it as long as reasonable. If grantor doesn’t fix it, conduct of parties has fixed it. Once the location is fixed it is set in stone and easement is limited to that location. Common law, you have to get permission to put up a house there and move it. Modern trend as long as relocation is reasonable it’s ok and it cannot unduly burden easement holder. The holder cannot move it at all w/o permission. The holder of the easement has a duty to maintain it!!! And also the tort exposure. If both parties have use, then sometimes they share these. FSA

o 2-Impliedly:

▪ based on prior existing use. Apparent, continuous and necessary (helpful only ) and apparent when severance happened. Presume parties wanted to put in lease but forgot to (oops doctrine) so FSA.

▪ By necessity: landlock. Common law: legally landlock, based on public policy, you cannot contract out of this policy because we don’t want unused land, so you get an easement on the parcel of land the severance of which caused the landlock; modern trend; not legally landlock but practical purposes landlocked. So they begin to look like the other necessary in prior existing use. (only as long as necessary).

o 3- Estoppel: license coupled with estoppel. As long as necessary to recoup expenses.

o 4- Prescriptively: FSA but depends on circumstances giving rise to prescriptive.

▪ 4a. Prescriptive approach: Similar to adverse possession: Actual entry, gives right to a possession, that is open and notorious, hostile or adverse, continuous for the duration of the period, exclusive and under a claim of rights. BUT in this case, for prescriptive easement there’s a difference: claimant must show that:

← Actual entry

← Open and Notorious to give constructive notice. Does it have to be a path or some physical evidence or have to be seen or did in any way the true owner see you.

← Adverse or hostile: The use of land was not permissive, not subservient.

← Claim of right: you use it as a true owner would. Focus on state of mind objective v. subjective, and under subjective good faith v bad faith.

← Exclusive: not here. Owner can still use it so this element is altered because his use doesn’t have to be exclusive. Owner has rights to use that are not inconsistent with the easement given, if there is an easement given. No need to prove exclusive use. As long as owners use is not inconsistent with the adverse possessors’ use.

← Continuously: use cannot be continuous by nature! So you only have to use it as continuosly as someone who would have the right to use it would. Has to be the same path, not a different one. (Othen case)

← Owner has to do something more than just telling him that he needs to stop.

o 4b- Lost Grant Theory approach: in old England. You had to take good care of document giving you the easement. But if Dan has been waling across land for five years, he probably had an easement and lost it. Lower threshold on owner, you have to do something to show that he never had the right to walk on the land in the first place:

Hence a letter written stating that you are forbidden from doing it again interrupts prescription because it rebuts any claim of acquiescence.

o You can prescriptively take away an easement (any easement except by necessity because we don’t want a landlocked piece of land!) by using the land in a manner inconsistent with the easement: plant stuff there, put obstacles in the way, put off fences, etc. CA statute is five years. Also, does lack of use constitute abandonment of easement? Nope! You have to do an affirmative act to take away the easement. You can ask for a release of property interest and it has to be in writing. When is it appropriate to imply a release? You need an act above and beyond mere non-use that shows you’re claiming the right or that the owner of easement did something major to give it up, but even taking away rr tracks did not constitute abandonment.

• Can you create a deed that creates an easement to a third party in the same deed: reserving an interest in the title? Common law: no, modern trend says yes, you can. So if Coque wants to give an easement to a third party like Jason, he can do so in the deed when he sells it to Wendel. Assume Jason had a license before. At common law, you had to create the easement to Jason the day before you conveyed land. You except out a pre-existing easement like that. You reserve an easement when it’s newly created. Difference is except out a pre-existing and reserve newly created. Question in Willard case is can you reserve an easement in the third party? Modern trend says yes, now you can. Common law says no, because Dan doesn’t have a piece of paper and Wendel has it. So that presents a problem. So that’s why many jx still go with common law so that you each have a paper in your name. Reserving in the grantor both common law and modern trend said yes.

• Can you get an easement for your own property? No, you cannot have an easement. But can you reserve an easement in the deed for the grantor, it’s a newly created easement. So when you reserve an interest, you create a new easement because you could not have it before.

• Holbrook case: If you give someone a license and someone relies on it to their detriment, you have a doctrine of license coupled with estoppel: show that there was reasonable reliance and the owner knows or should have known that holder of license was changing position by making substantial expenditures in reliance. So: actual or constructive notice, reasonable reliance, and substantial expenditures in reliance. How long are you estopped? Depends on the expectations based on the substantial expenditure of funds. As long as necessary to recuperate the expenditure. If the house burns down, insurance pays for it, and then owner of servient estate can stop the trucks from coming in and building new house in the same place. Some jx. only accept this estoppel theory, others will say that you cannot have easement you should have had it in writing because otherwise it violates the statute of frauds! The idea of theory is that the owner of servient estate doesn’t significantly enhance his bargaining position at the expense of dominant estate owner who relied on it and had significant expenses so their expectations are higher. So person is estopped until the expenditure has been recouperated. Scenario would have to be clear where the person has recuperated all the money spent as is the case of the house burned down and they collect insurance proceeds. Both parties are back to original positions. If just a sale, then the new owners also have to recoup! Always assume there’s another access point to the property.

• Types of easements: ask about where does the benefit run? With person or with land. Where the language is ambiguous the ct will assume appurtenant.

o Easement appurtenant: runs with the land to remote grantees, subsequent owners. Attaches to the servient estate: coque’s land is the servient estate. The one who gave the easement. right goes to whomever owns the parcel of land that the easement benefits (dominant estate). Transferable, but may be made non transferable by making it personal and not transferable. Require a dominant and a servient tenement (estate). Therefore it’s fee simple absolute.

o Easement in gross: right goes to a person regardless of ownership of land. Only a servient estate. Maybe alienable or inalienable. May be transferable. Therefore it’s a default life estate unless you phrase it as “to Dan and his heirs”.

• Scope of easement: It’s generally in the writing.

o Determined, for non-express easement, by circumstances surrounding the easement when it was impliedly created.

o Location: fixed by owner or by use (see above).

o Purpose: is a different use included within the scope? Easements are presumed to include evolutionary changes but NOT revolutionary changes. Is windsurfing an evolutionary change? Are cars an evolutionary change if you were given easement for carriages? Fact sensitive. Burden on servient estate underlies this policy.

o Scope of an easement appurtenant: Should you only be able to use an easement to use parcel 2 or can you have it to use parcel 3 as well? The benefit of an easement appurtenant goes to every inch of the dominant estate. So, you have to do reasonable development of the dominant estate so ct will look at that. What’s the surrounding are doing? If they’re splitting land into houses and you build four houses which everyone is doing then it’s ok. But if you want to build a condo for 200 people that’s not evolutionary but revolutionary. So it’s too much burden on servient estate. The benefit of an appurtenant easement only runs to the dominant estate to every inch, but if he uses it to access another estate outside those inches, then you’re trespassing because it’s greater than the scope allowed. Owner is entitled to injunctive relief. But the ct in Brown gave only damages relief! The dissent states the general rule that would grant injunctive relief because you don’t want to discourage easements and that’s what the majority would have done. He says misuse can end an easement.

o Divisibility and transferability: Appurtenant can be transferred and divided by selling property because it runs with the estate. BUT what about easements in gross? England doesn’t even have these! Dan should not be able to sell his easement in gross to just about anyone who wants to go surfing. Early American law said you could not. Modern trend focuses on intent: did the parties intend to make it transferable? They look for language that says “heirs (dead) and assigns (inter-vivos) ” Express intent. What about implied intent? If it’s a commercial easement like the one we have with PG and E because obviously you would want them to have the easement! No need to renegotiate. All presumed to be divisible and transferable unless they are personal in nature. Real intent to discourage divisibility of easements in gross. One stock rule: if transferred and more than one person owns the easement in Gross you need permission from everyone. Check on this since I was not really paying attention. Divisibility is ?

o Term and termination of easements:

▪ Release by dominant

▪ Take back prescriptively’

▪ Merger

▪ By term being terminated or ending

▪ Abandonment but mere non-use doesn’t imply release. It needs to be coupled with an affirmative act evidencing intent to release.

▪ Misuse of an easement means trespass and you can ask for injunction. If ct feels circumstances are such they cannot guarantee there will not continue to be misuse, then they will order termination based on misuse.

negative easement.

These are negative interests. As opposed to a positive easement which allows you to use it for something. gives you the right to limit the uses a servient landowner can put his land to. It’s a negative easement. It doesn’t give you the right to go on land but gives you the right to restrict land use of the other estate. Ie: agreements that a house in front of you will not build a second floor blocking your view to the sea. It limits conflicting uses. Negative externalities: one person’s use which has a negative effect on a third party that they don’t have to pay for: pollution. Before zoning laws, cts recognized that these negative easements would be of value. Cts decided they would only allow four types: Blocking windows (light), interfering with airflow in defined channel (air), lateral support (soil): cannot excavate in a way that your house caves in; interefering with flow of water in an artificial stream (water): irrigation. Don’t worry too much about these four types. In America besides those four you get:

• View

• Solar: you cannot block someone’s solar collector with your house!

• Conservation: in California you want to conserve the property. They can dedicate a conservation easement that they will not develop land.

o All these run with the land without qualifying them again. Negative express easements run with the land

These will always run.

Othen case: where a vendor retains a tract of land which is surrounded partly by the tract conveyed and partly by the lands of a stranger, there is an implied reservation of a right of way by necessity over the lands conveyed where the grantor has no other way out. But you must show, to prove implied reservation:

• There was unity of ownership of the lands servient and dominant

• The roadway is a necessity, not merely a convenience

• The necessity existed at the time of severance of the two estates.

Another rule from this case: one cannot be said to have an easement in lands that one owns in fee simple.

To claim an easement by necessity it can only arise by implied reservation. The fact that you’re landlocked does not in and of itself give you a way of necessities over the land where there is no privity of ownership. Necessity alone is not enough!

Also, in order to claim the right to the easement as prescriptive right you need to adverse possess it and it cannot be used by implied or express permission of owner, or even if the owner also uses the road or whatever you’re claiming under prescriptive right because not exclusive. Prescription rests upon the idea that rights can be acquired simply by the passage of time. it is based on use, not possession. It is analogous to statute of limitations and many times the same time is used.

To secure a prescriptive easement under lost grant theory claimant must show that:

• The use of land was not permissive and also

• Owner acquiesced, did not object

Hence a letter written stating that you are forbidden from doing it again interrupts prescription because it rebuts any claim of acquiescence. In some other jx’s, you have to effectively interrupt the adverse use. In Othen’s case, the owner knew he was using it and was permissive.

In public places (example of Rockefeller plaza) prescriptive easement can be obtained if owner put on notice by kind and extent of use that an adverse right is being claimed by general public not individual.

Covenants: You cannot prescriptively get a covenant. Unless it’s one of the seven negative easements, you qualify it as a running covenant. But it is very similar to a negative easement and came from the need for more negative easements. An agreement to limit negative externalities or conflicting land uses. Comes from contracts. When should a contract between two parties bind another party that was not a party to the contract. In this case, the K binds the land, said the courts. So you don’t’ necessarily need privity. If you have a horizontal privity you’re ok. The two parties were the original parties to the agreement. Vertical privity relates to the original parties and their subsequent grantees. So the question becomes can a grantee sue another grantee with whom she doesn’t have horizontal privity. You have to go around the horseshoe! Prove you have vertical privity with Wendel, Leena had vertical privity with Dan and wendel and Dan had horizontal privity. Covenants TRUMP ZONING REGULATIONS. They came before zonng and municipal ordinances. Issue is Should the covenants run to a remote grantee? If you have a horizontal privity, you have an action on contract law. But if you don’t, do you have a running covenant. It depends on whether you want injunctive relief (equitable servitude) or damages (real covenant). If you want both injunctive relief and damages, you need to qualify it as both.

Running covenants:

• Equitable covenants (enforceable at equity: injunction). Three requirements you need to show that:

o Parties must intend it to run with the land. 99% will be created in writing and you have to say that you intend it to run to remote grantees: dan, his heirs and assigns, or “this covenant will run with the land”

o Covenant touches and concerns the land: in its core, it has to do with the land use. No factories, residential only. You cannot have something that says “Dan will babysit Wendel’s kids every Friday” because it doesn’t touch and concern the land. You can put those in because there’s freedom of K, but it will not be considered ok for this.

o Notice of the covenant .For our purposes, when you record, it puts the whole world on notice. When you bought the land you knew this land came with this covenant.

▪ Constructive notice: by properly recording, you will be charged with notice whether you check or not.

▪ Actual notice: you read it.

▪ Inquiry notice: you heard a rumor that there was this covenant. Or a reasonable person would have been suspicious that the covenant existed, and you should have inquired and if you don’t, you’re charged with knowledge.

o

• Real covenants (enforceable at law)(damages)

o Parties must intend it to run with the land. 99% will be created in writing and you have to say that you intend it to run to remote grantees: dan, his heirs and assigns, or “this covenant will run with the land”

o Covenant touches and concerns the land: in its core, it has to do with the land use. No factories, residential only. You cannot have something that says “Dan will babysit Wendel’s kids every Friday” because it doesn’t touch and concern the land. You can put those in because there’s freedom of K, but it will not be considered ok for this.

o Privity of estate (DIFFERENT FROM PRIVITY OF ESTATE AS WE SAW BEFORE in LL –tenants) The horizontal or the vertical, so you have to diagram because there are different degrees : turns on whether the benefit is running or the burden is running, so one or more of the original parties is not the one suing or being sued. When you talk about the running, you are talking about the vertical. 99% of covenants are appurtenant (almost no covenants are in gross: only where the burden is in gross!???) Both the burden and the benefit are appurtenant. There is always a parcel of land. Line up parties as D’s and P and show who’s the benefit side and the burden side (???)

There has to be a shared

There horizontal privity if you have

Privity: to prove this go through this.

• Benefit: can only be retained by grantor for the land he still owns, at time covenant is entered into, cannot be given to a third party (neighbor darcy)

o Horizontal: No. For benefit to run, you don’t have to show any horizontal privity?

o Vertical: Estate any duration: it will probably run to anyone but an adverse possessor or a trespasser.

• Burden: Don’t show this if original party is the one you’re suing.

o Horizontal: from wendel to dan.

▪ Mutual: Shared property interest which will be ongoing.

← Landlord-tenant

← Easement

▪ Successive: grantor/grantee as in where you sell your land to another and you put it in the same deed. Conveyance of a property interest other than the covenant in the same deed as the deed creating and conveying the covenant.

o Vertical:

▪ Estate of the exact same duration. Original parties and all subsequent parties. Possesory estates and future interests. You can only convey what you have in order for there to be vertical privity! So if you have FSA and you give her a life term, there is no privity. But if you lease all your interest, then there is.

A covenant is like a contract but where you don’t need consideration because it’s a like a gift. If you call it a contract you can run into problems if no consideration. But if you call it a property interest, you don’t need consideration to create a covenant. And if one part breaches you can sue for damages. Can sue a person who bought the land aftrewrasds, depends on whether the covenant runs with land. And that depends on what kinds of relief you want: equitable or damages. If both parties are the original parties, it is not a running covenant. When we talk about running covenants, we assume one of the parties is not the original party to the K. Dan sells to Wendell with covenant not to hunt. Wendel sells to Shelley and she hunts. Dan sues Shelley. He needs to show it runs to Shelley. We don’t need to show it runs to Dan because he’s an original party. Dan is suing to enforce the burden on Shelly, so we have to show the burden runs to Shelley, and that depends on what kind of relief your’re seeking:

• Injunctive: Is equitable relief so it has to qualify as equitable servitude.

o Only show notice

o Intent: must intend it to run with the land: “ heirs and assigns” or “run with the land” any language that expresses this.

o Touch and concern: it has to be related to the land. Very fact sensitive. This is dividing line between personal covenants and covenants that should run with land. If personal, and language says to run, cts will still not allow to run. Purpose has to be to limit negative externalities associated with someone’s use of the land.

• Damages: for this you show it’s a real covenant. CL thought this was harsher on Defendant so you have to show:

o Privity: Degree of privity depends on whether it’s the benefit that runs or the burden that runs:

▪ Benefit:

← Horizontal: none. It always run to party invoking benefit unless adverse trespasser

← Vertical: estate of any duration

▪ Burden:

← Horizontal:

• Mutual interest: shared property interest in the same parcel of land: positive easement and landlord tenant relationship, so both have a property interest in the same property, so a sale doesn’t qualify. So if you have this pre-existing deed or agreement, and later you give a covenant to maintain or whatever, that qualifies even though is not successive as below, because it is not done through the same document. But as long as you have a shared ongoing relationship, you’re ok.

• Or Successive: Grantor and grantee relationship with respect to a property interest other than the covenant in the same transaction or deed: When they’re conveying the property interest, the covenant is being created: sales, mortgages, landlord tenant, posessory estate, easement, whatever. So two things are in the same document: the sale and the covenant. Hypo of dan and wendel covenanting to not develop land. Wendel dies, and gerri sets up club. Dan cannot sue gerri because there is no horizontal privity on the burden side since the only thing conveyed on that deed was the covenant and not the interest on the land.

o Intent

o Touches and concerns land

Covenants are usually negative and when they started to become positive (you cannot let any trees grow more than 20 feet) the cts worried about whether they should permit this kind of positive action requirement to run to subsequent parties so they want to control these. If it’s the flip side of a negative they’re ok: Affirmative component: trim the tree. But it’s to comply with the negative: to not let the tree grow more than 20 feet. Cts permit it. Act is being performed on servient estate. Can you have affirmative covenant with an act not to be performed not on the servient estate: covenant is that they have to come onto my land and cut the grass. That’s not allowed. But if there’s an offsetting property interest flowing back to the servient estate, the cts will allow it. So, you can require payment of dues of subdivision houses through a covenant because the club house and pool belong to everyone and there’s an easement, an interest that allows use. But if the pool is like a mile away and owners are required to join club in order to use it, it’s probably going to be stricken down. Limited in nature and relative to touch and concern. If it’s off the servient and interest flowing from common area to servient estate back, what’s the interest and where is it located. If it’s affirmative look at nature of act and where is it to be performed.

Doctrine of Standing: you show that when the benefit was created that it flowed to you. Benefit and burden have to be appurtenant (?). Standing is standing to sue. The benefit goes to the land retained by the party signing the covenant at the time the covenant was entered into. Not the individual, but the land. So, Jenna cannot sue Shelley for hunting even though she had benefited originally from the covenant between Dan and Wendel.

Hypo: Shelley subdivides land into 10 parcels. All of them have an express covenant. That benefit goes to all 9 other parcels. But when you sell lot 9 the benefit goes only to 10. (?) so what’s a ct to do?

Common scheme doctrine: Doctrine used to create covenants or to expand standing. a grantor who has two or more lots and conveys one with and express restriction on it, and the lots are so situated as to bear the relation,(if the’re grouped together and looks like they were all meant to be part of the same scheme) it will be assumed that the express restriction will be implied back to all the lots. (benefit runs to all of them.) This CAN be done expressly by developer, but isn’t always done. This expands who has standing. About half jx use this doctrine to create an equitable servitude where none was there. They will imply a covenant only in equitable servitude not in real covenant and only if there’s a common scheme. How many lots have to have the restriction in order to qualify as common scheme? In a case, there were 56 lots with restriction and the other 40 something don’t have restriction. Ct implies it back on all the rest of them. What about notice? If you read all the deeds by grantor, you should have known there was a restriction or at least have been suspicious. But the scheme starts with the sale of the deed that first uses the express restriction. So if lots 1-6 don’t have this restriction but 7-100 do , then you cannot restrict ever lots 1-6. And standing is not expanded to all! So not all of them would be able to sue lot 7 if he breaches. But, if you imply all of them have express restriction because they are part of the scheme, then they do have standing to sue. So use to expand standing or to create standing. But, just a third party beneficiary cannot get standing. Common scheme only starts with the first lot that got it! So you cannot imply the covenant on any lots before. You can imply it only on subsequent lots. On both the creation and expanding uses you have to keep out any previous lots sold before the first express requirement. They are not burdened and they cannot be benefited either.

Pierson v. Post: In this case, what constitutes occupancy? What acts amount to occupancy as it concerns wild animals?

Tresspass: wrongful interference with another’s property. So you need to show property. Rule says you acquire property by occupancy. That’s not disputed. What’s the issue is what constitutes occupancy and that’s the novel issue!

So the rule is the rule of occupancy. Occupancy gives you possession and to have occupancy you need to entrap, restrain or eliminate the natural freedom, ensnare, etc. by one not abandoning his pursuit. not merely pursue.

So the three elements are:

• Intent to appropriate to individual use

• Deprive of natural liberty

• Brought beast within his certain control

When ct explores Justinian, barbeyrac and pufendorf they are looking for a definition they can choose from to fit their current pubic policy.

Majority in this case talks about the law because it favors their opinion, dissent argues the facts because the facts tend to favor Post and that’s what his opinion was.

In the end the majority rule encourages competition and better technologically developments. Rule of occupancy creates an incentive to kill as many wild animals as possible. When extinction is a possibility, then public policy needs to change and laws get created by legislature to create exceptions to the case law that doesn’t serve us anymore.

Keeble v. Hickeringhill:

Duck pond to catch ducks and guy goes shooting to scare ducks. Difference between this and Pierson is that in this case, the owner of the pond does this for a living, not just for recreation, so in effect Hickeringhill is interfering maliciously with someone’s trade or employment.

Jacques: plowing through snow with trailer house without permission from owner. $1 in damages and $100, 000 in punitive to send the message that there is state protection of property rights, since bundle of rights allows you the right to exclude.

Schack: Aid to migrant workers is allowed and congress had given them the right to access the workers to protect them, so they were not trespassing. So even though the general rule is that your property rights give you the right to exclude, you sometimes have public policy considerations that allow exceptions to the main rule. Also necessity (torts), whether private or public is a clear recognized exception to the general rule. Remember that for private necessity, you still are liable for actual damages.

Armory v. Delamirie:

Chimney sweep finds jewels and jeweler takes jewel away and he sues for trover (damages) not replevin because he has to show it’s his and he just found it. Jus Tercii: superior property rights belong to someone else, so you have none. Court says, no, finder has superior rights to the whole world but the true owner. Or except if there’s someone with a superior right (as a first finder).

Hannah v. Peel: case of the brooch found in house quartering soldiers. He gives it to police, after some years police gives it to owner of house who never lived there. Peel claims on basis os locus in quo (owner of house) Different to ratione soli (applied to wild animals, to protect property rights). Hannah claims it as a finder. Hannah, finder, sues, and after examining three other cases, judge rules for Hannah as a finder because Peel never had any knowledge about it anyway, wouldn’t have known about it, and it was not “attached” to the property. He also seemed to consider that Hannah was honest and returned it to the police in his ruling, going against two precedents and following one.

*Always write assuming Wendel is a skeptical reader who did not take the class. DON’T FORGET RULE STATEMENT FOR EVERYTHING! DEVELOP THOSE WHILE STUDYING WITH GROUP.

Start discussing elements with those which are clearly satisfied first. BUT always cover the other ones to show you do know all the elements and how you would discuss them. Irac in one sentence: “open and notorious possession, which gives constructive notice to the owner, is satisfied because Wendell built a house and farmed it year round which would have been easily seen if the true owner had come by.”

* Start with the first issue that appears. BUT if you have add on doctrines that appear first but need to be seen afterwards (affirmative defenses, color of title, etc) discuss the main issue first because if you cannot prove adverse possession , why even discuss color of title? If you don’t have a doctrine to defend from, why go into affirmative defenses.

*Every element is an issue so he wants to see a full irac on it, even if it’s just in one sentence as above: did you spot the issue, what’s the rule of law, what was your analysis and your conclusion. Use the words of art: ratione soli gives you constructive possession NOT ratione soli gives you the right to anything on your land.

*Don’t say intent is clearly satisfied. Explain how it is satisfied, by what fact. And even with those elements not satisfied, try to make an argument on how it is satisfied, whether or not is wining it’s irrelevant. You get points for arguing the counterargument even if eventually you deem it useless or not worthy. As long as you can make the good faith argument. So depending on how you define terms, you may or not have an argument satisfied. So, delve into the subrules for elements (IRRAC), like we did in LARAW: what constitutes specially manufactured?

Substance over form. Don’t worry about the punctuation grammar, ect. But do concentrate on the substance.

Always argue both sides on good faith, whether you call it competing or exception doctrine or exception, as long as you can argue it in good faith.

For exam: Darcy has a right to deer based on Occupancy. Occupancy means… elements (rule statement)…facts applied to rule (how does Darcy satisfy the elements?) and then public policy statement IF necessary. Counterargument: others have claim. How satisfied? Then, to decide, you use public policy to decide case: who trumps whom and why. The right answer may be “it depends”. Could be jurisdictional, (if given what the Jx follows) could be modern rule or classic rule, could turn on a fact that is ambiguous and left like that so we can see what we would need to know in order to decide.

May want to do competing IRACS, one for peel and one for Hannah, and then decide what’s superior. Case names not tested at exam.

*Adverse possession: Some jurisdictions require you pay taxes. (California does this, but it is not the general rule) It allows the true owner to more easily check that no one is adversely possessing your land. DO NOT USE THIS IN THE EXAM. Lead with Statute of limitations approach, not with the rewarding the AP approach.

WHEN FACT PATTERN SAYS SOMEONE IS SOMEONE’S LAND, AND THEY’RE SUBSERVIENT, THERE’S A TENANCY, NOT AN ADVERSE POSESSION.

*With issues that may be soft fact sensitive, you can point out that it could go either way. He wants to see that. There are questions here he doesn’t know the right answer and just wants to see the argument but it could be a close case and he wants to see that.

*. A jx. Can use subjective for determining claim of right and objective for analyzing privity! So IN EXAM GO DOWN ALL THE POSSIBLE FORKS IF THE EXAM DOESN’T TELL YOU WHAT DOCTRINE THE JX TAKES.

IF YOU see Forfeiture, renunciation or merger of a finite estate, and you have an alternative contingent BOTH contingencies die, hence why you need the reversion to O in FSA. If life estate ends naturally with death, then evidently you’re ok and it never goes back to grantor so why put it in? But if it ends unnaturally in forfeiture or merger or renunciation, then it does go back to grantor because both alternatives of contingencies die.

If there are quotes around language of conveyance, he wants you to examine the issue of the language. If he says as true joint tenants, valid joint tenants then there is no issue. But watch out for procedural issues that are solved for you and then there’s quotes around language: a validly delivered and executed deed that says “to a and b as joint tenants” . The validity is of the procedure, not necessarily of the language. Test the language issue.

When you talk about lost, mislaid, etc. elaborate on what all of those mean as to the state of mind of the true owner. That’s the rule elaboration part. Don’t just say it’s lost or mislaid. So go into whether it’s voluntary or not and define treasure trove, etc.

In tenants and landlords: don’t use illegal lease as a fallback in an essay, use doctrine of quiet enjoyment.

Rules we’ve learned:

• Occupancy (Pierson v Post)

• Malicious interference (Keeble v. Hickeringhill)

• Ratione soli (none yet!)

• Animus revertendi (catching a tamed animal, not covered by capture, because it behaves differently and property attaches when you domesticate the animal).

• Relativity of property rights

• Self help

Principle of first in right, first in time.

Property rights: bundle of rights:

• Right to use

• Right to include

• Right to exclude

• general rule is that your property rights give you the right to exclude, you sometimes have public policy considerations that allow exceptions to the main rule. Also necessity (torts), whether private or public is a clear recognized exception to the general rule. Remember that for private necessity, you still are liable for actual damages.

• finder has superior rights to the whole world but the true owner. Or except if there’s someone with a superior right (as a first finder). Armory case: chimney sweep.

• a thief can never pass good title because buyer is best position to discuss title and how he came to possession of the item.

• Bailee: bailor voluntarily transferred possession so SHE bears the risk. She was in the best position to avoid the risk by selecting her bailee. Subsequent bona fide purchaser without notice possessor of title wins as long as there was good faith. If I suspect he doesn’t have title, I should enquire. But the burden needs to be placed on bailor.

• Ratione soli: concentrates on deterring trespass and trespassers.

• Locus in quo: concentrates on protecting landowner’s expectation that anything on your land is yours, and it also sends the message to finders that deters trespass as well

Finder’s rule: a man owns everything attached or under his land (title) but not necessarily what’s just lying on top of it.

•

Types of acquisition:

• Capture (DIC)

o Deprived of its natural

o Intent to appropriate to individual use

o Certain control

▪ Exception: Animus revertendi: tamed animals are not wild and you only need constructive notice, hence why animals are branded.

• Rationi Soli: PP: discourage trespassers. Constructive possession.

• Creation: AP, Chenney Bros. PP: Want encourage competition. Malicious interference and non constructive competition not ok.

• First in time, first in right.

• Labor

• Finders: keep in three cases:

o Lost in public place

o Abandoned

o Treasure trove

▪ No longer in England

▪ questionable here

▪ Agents responsibility to turn in

o Landowner keeps it if:

▪ Found in private area

▪ Attached to or under land

▪ Or if limited purpose doctrine.

• Thiefs: never pass good title. You’re in the best position to prevent damage

• Bailee: Can pass good title because bailor is in the best position to prevent loss, but only if buyer is subsequent bona fide buyer.

Property Rights: (TUPE)

• Transfer or Dispose

• Use

• Possess

• Exclude others

Adverse Possession: EEPOCcH: Earnings approach: APor. Penalty Approach: True owner and statute of limitations.

• Actual Entry which gives rise to

• Possession which is

• Open and Notorious

• Continuous for statutory period

• Hostile or adverse

• Exclusive

• Claim of right: Build expectations

o Objective view: focuses on actions regardless of state of mind of APossesor

o Subjective View: Focuses on state if mind of possessor. Jx split: Good faith, bad faith.

Color of title: Conveyance that is deficient. You get title to what you constructively possess under deed, as long as owned by same owner. You only get what you actively possess if true owner constructively possesses the rest or the rest is not owned by same person. Constructive notice is needed. Actual notice is needed if it’s an enchroachment.

No Color of title: you only keep what you actively possess.

Doctrine of Tacking: adding the periods of successive adverse possesors together to satisfy the statutory period. Privity.

o English approach= objective approach= true owner SOL approach. Regardless of good or bad faith, privity or not, as long as there are no significant gaps in posesion.

o American approach= subjective approach= earnings approach, there must be a reasonable relationship between the APs - a meeting of the minds or a voluntary transfer. prove that you had a relationship in good faith that allowed you to build expectation.

• DISSABILITIES DOCTRINE: infancy, mental, imprisonment.

o 10 years after disability is removed

o Only lengthens

o Has to be there before entry and

o Only possessor or true owner

AP of chattels:

• Rule of discovery: Only tolls when open and notorious and after due diligence.

Boundary disputes:

• Agreement: express oral agreement

• Acquiescence: long term. Implied

• Estoppel: You told me that’s where boundary was and I materially changed my position in reliance.

Improvements:

• Bad faith: Owner owns them. Or you pay to have it removed.

• Good Faith: Confer on owner the right to sell the property or buy the improvement

Gifts:

• Intertestary

• Intervivos:

o Intent Present intent, not future intent.

o Delivery:

▪ Actual

▪ Constructive: gives them control: key

▪ Symbolic: deed or paper indicating intent.

▪ CL: if physical is possible it ha to be done. Yes, redeliver. Wrench of parting with the item.

▪ MT: delivery requirements are relaxed. No redeliver

o Acceptance.

▪ Presumed if item is valuable.

• Real property deeds: valid upon acceptance not recording or signing it. Only acceptance.

Possesory estates and future interest:

• Fee simple absolute: default for modern trend

• Fee simple defeasables

o Grantor:

▪ Fee simple determinable: as long as. Possibility of reverter

▪ Fee simple subject to condiution subsequent. But if. Right of re entry

o Third party:

▪ Fee simple subject to executory limitation. Executory interest for the third party.

← Shifting or springing

• Finite estates: remainders for third party and reversions for O

o Life estate: default common law.

o Fee tail

o Term of years.

Classes: Close by nature, or by rule of convenience: When first interest holder becomes possessory.

Gap scenario: someone dying and condition for remainder is attending funeral. There is a reversion to O subject to executory limitation.

Springing interest:

• O holds a fee simple subject to executory limitation

• Jenna has a springing executory interest in fee simple absolute

Contingencies:

• Vested

o Born

o Ascertainable

o No condition precedent in the same clause or clause before.

• Contingent.

• Subject to divestment followed by executory interest. Usually for someone’s fault.

• destructibility of contingent remainders doctrine, it is destroyed by operation of law and you can have a holder of a future interest never get the future interest if the precedent clause is not met before the time of possession. Can die:

o naturally, by death of holder,

▪ or three ways: FRM

← Forfeiture

← Renunciation

← Merger: two subsequent vested interests. Destroys contingent. Smaller interest merges into bigger and you now own fsa.

o Alternative contingent remainder. If the first contingent is destroyed, they all get mowed down.

Finite estates defeasibles:

• So we only apply to life estate:

• Determinable: as long as. The same party will hold the future interest whether condition occurs or not. So either

o reversion in fsa, or

o vested remainder in fsa for third party.

• Subject to condition subsequent: BUT IF: here we have

o life estate subject to Condition subsequent and reversion to owner if stated as such, or

o if third party then life estate subject to executory limitation, shifting executory interest for third party, with reversion in fsa for O.

So, owner gets reversion in all three cases, ( all except determinable with third party) and third party gets shifting executory interest in fsa if it’s a life estate subject to executory limitation.

Shelley’s rule:

• To A for life, then to A’s heirs and their heirs. when you have a remainder in the heirs of the life tenant, give the remainder to the life tenant (then check for merger). So in effect A gets FSA.

• If you have B in between with life estate, no merger.

• It’s gotta be in the same conveyance. If you see a clause giving a remainder to the heirs of someone, get the red flags in your head. BUT ONLY IF IT’s THE LIFE TENANT!

• Also, To A for life, then to A’s heirs who attend A’s funeral and their heirs. A has a life estate, O has a reversion subject to an executory limitation, A’s heirs have a springing executory interest. So Shelley’s rule doesn’t apply because there’s An EXECUTORY INTEREST, NOT A REMAINDER.

• IF it IS A REMAINDER, SHELLEY’S RULE MAY APPLY, BUT ONLY A REMAINDER, NOT AN EXCUTORY INTEREST, AND ONLY IF IT SAYS ‘HEIRS’ NOT CHILDREN NOT FAMILY, OR ANYTHING ELSE.

•

• DOCTRINE OF WORTHIER TITLE:

• Check for remainder in the name of the grantor’s heirs. So, the same as Shelley’s but for Grantors! So give that future interest to O and check for merger. So, to A for life and then to O’s heirs and their heirs: A life estate. O’s heirs had a contingent remainder in fsa (we don’t know who are the heirs of O yet because O is alive) so it’s contingent. Then we re-write it as per Worthier title. A has life estate, O has reversion in fsa.

•

• Purefoy’s rule:

o To A for life, then to B and her heirs if she graduates law school.

o Someone said that it could be construed as an executory limitation, but court says: no, it’s a contingent. If it looks like a contingent remainder, call it a contingent, and it’s subject to destructibility.

• Rule against Perpetuities:

o Statute of limitations: 21 years after the lives in being at the creation of the interest. If we can come up with one scenario where the interest vests only after the time of 21 years after the lives in being, then the future interest is void. In common law they tested it conceptually at the creation:

▪ CREATE, KILL AND COUNT:

← Anyone alive in the world could be the measuring life

← Create someone in whom the interest can vest. Delay the vesting until everyone is dead plus 21 years. an interest for someone

o Only applies to Contingent remainders, executory interests, and vested subject to open (because they’re partially contingent).

Co-tenancy:

• Joint tenants: right of survivorship. Default in common law. Four unities (T_TIP: Title, Time, Interest and Possesion had to be the same). Transferable. Not devisable in a will because it extinguishes upon death. But can be severed anytime. No more need for two to transfer.

• Tenants in common: No right of survivorship. Can be devisable and transferable. Default in modern trend.

• Tenancy in its entirety: four unities plus marriage. Cannot transfer w.o permission.

• Rent? No, unless ouster of you as an owner. Physical in Common law, letter in modern trend. Can request accounting to get share of rent being charged. Depending on how much, can get fair share of market value or tenant to pay directly if under market share.

• Improvements and repairs: no right to contribution except at sale or partition.

• Carrying costs: yes, entitled to contribution for those needed to maintain title.

Types of partition:

• Physical partition (in kind) is the preferred kind of partition as opposed to

• Sale:

• UNLESS it is 1- impractical AND 2- it would seriously prejudice the interest of the cotenants. But lately, all partitions have been in kind (sale and assets are divided. So this is the de facto rule, but not the rule. It used to be farms that could be partitioned and someone could stay on it, but nowadays, the default property is a house which is much harder to partition, hence why partition by sale has taken over.

If tenants no getting along they can seek:

• partition: But not in entirety. That one is only broken by divorce.

• ouster to get rent from other co-tenant: You cannot get rent from the other tenant UNLESS Agreement OR OUSTER. Either physical in CL or MT is letter saying get out or pay me rent. If one party has full possession of the land he does not have the duty to pay rent to the others, but he also doesn’t have right to seek contribution for carrying costs. Assuming benefits exceed the carrying costs contribution they are seeking.

• If your co-tenant rents it out to others: All co-tenants have right to share (if it’s a profit that reduces the value of the land: minerals and deforestation you all have right to share in profit). CL said it broke unities if you transfer your interest. But in MT if the party’s intention was not to break the unities, then it’s ok and they are still joint tenants. The co-tenant can get half of the market value if renter knew he was only getting the interest of one co-tenant. Then he owes the other portion to the co-tenant he has not been paying. But if he thought he was paying full value, then the unpaid co-tenant can sue the other co-tenant for an accounting.

• accounting: is for benefits.

Contribution: yes for carrying costs but not for improvements unless agreed to by all.

Improvements: No, unless agreed.

Repairs: no even necessary repairs.

At sale, you get extra value of improvement or decreased value of it.

Non-free hold estates: leaseholds. Tenants and landlords: automatically a future interest arises in the owner when these are conveyed. YOU DON’T HAVE TO PAY TO BE A TENANT. WHEN FACT PATTERN SAYS SOMEONE IS SOMEONE’S LAND, AND THEY’RE SUBSERVIENT, THERE’S A TENANCY, NOT AN ADVERSE POSESSION.

LL reserves right to entry and to terminate lease if breach of convenants.

• Term of years: defined fixed period of time. The last day is calculated on the first day. No notice of termination is needed to bring estate to an end because it is given already. One single fixed term.

• Periodic Tenancy: For a fixed period which will automatically renew absent proper notice. Usually half a year notice for tenancy of one year. For less, you need notice equal to length of period but not to exceed six months notice. Notice must terminate tenancy on last day of period not the middle. Death of landlord doesn’t affect. conduct or parties can give rise to periodic. Conduct plus payment. If no express term but rent is paid and accepted you can bootstrap yourself into a monthly lease.

• Tenancy at will: No fixed period can end anytime and endure as long as both are ok with it. Easy to terminate by EITHER of them. Death of either can terminate. Common law would automatically terminate it. No notice needed. Expressly or by implication. Modern trend has been to give thirty day notice, and in California, you get 60 days notice, which is more than month to month tenants get! This applies to both sides. Also, if he pays rent after death, he could be construed as a holdover and a bootstrapping into month to month will ensue. Unless contract has language that says that one or the other has a right to unilaterally terminate. Under common law, he would be bootstrapped as periodic.

o Common law: no notice.

o Modern trend will bootstrap it into periodic month to month.

o Death of landlord affects.

o It is possible to have a contract that gives the right of termination to a tenant without reserving the same for the landlord, in which case it becomes a life estate determinable, not a tenancy at will anymore. Very modern trend: look at intent.

• Tenancy at sufferance: Holdovers after a term of years. Not a real tenancy. Creates an option for the landlord. It’s a new offer to extend the tenancy. AS landlord, you have two options.

o Eviction (plus damages). If no eviction, you impliedly accept tenant as holdover

o Having tenant as holdover tenant and landlord can elect to extend:

▪ for a term of years equal to the previous term, but no more than a year.

▪ Modern trend month to month, more than likely.

▪ Whatever way rent was computed on original lease or how it was computed.

▪ fairly common approach is that rent is double for holdover tenants. Some say that even lower than original rent if market value is lower!!!

How do you create these types? By language (expressly) or impliedly (by actions or behavior). All can be created expressly: written or oral. If statute of frauds applies, you can only create it in writing that complies with statute of frauds: a writing signed by party to be charged. If greater than one year, it must be in writing. If less than one year, it can be oral.

Proper notice: for term of years, automatic. You had notice on first day. For periodic you can only terminate at last day of period and notice has to be given at least one fixed period in advance of that day. When years it has to be a six month ahead term.

Always analyze the creating language and give the kind, when to give notice acc. to common law and under modern trend, and then to end when.

BEWARE of no proper notice! Even if you give notice and it doesn’t qualify because it’s defective, it could be construed as no proper notice at all and you’re liable for all the rent until landlord re-rents! Under modern trend more kind judges, they may give effect at the soonest opportunity possible. Some will construe as contract and landlord has a duty to mitigate. So, on month to month, you give notice on November 16th you’re leaving nov. 30th. Doesn’t qualify as proper under common or modern. In that case, you may be responsible for rent until dec 31st, under common law, or December 16th under modern trend or you may be responsible until such date as the landlord re-rents!

• Modern trend is thirty day notice to terminate at end of term. So, for a year term, you can notify also 30 days ahead. It reduced amount of notice but still require that notice be on last day of term unless it’s a month to month in which you can terminate any day. So common law, month to month, if you decide on march 24th you’re leaving , you’re still liable for rent until April 30th. Modern trend, you could leave on April 24th. BUT THIS ONLY APPLIES IF MONTH TO MONTH.

What if two parties own it as joint tenants. Then if one party only leases it, at the end of that life estate, since it extinguishes, then the lease also extinguishes. So, death may affect it! So it turns a term of years and periodic tenancy into determinables.

A lease is a conveyance that transfers a possessory estate in the land and it also is a contract that creates rights and duties. So they’re pretty much treated as contracts as far as nonperformance, duty to mitigate, etc.

Statute of frauds. Some allow oral leases for less than a year. Others say oral plus payment.

Federal Fair Housing Act: 1968 :

• Against race, color, sex, handicap, religion, national origin, familial status.

• For sale, rental and advertising.

• Handicaps have the right to change property as long as they returned in same condition as received.

• You can have an action for these and ask for damages including punitive, and maybe even the US AG and criminal penalties.

• properties exempted, one family houses if owner has less than three, or a room or residency where no more than four families live and the owner does too. But not exempted from the advertising and also, only if you don’t use real estate agents or brokers.

• Prima facie case: no discriminatory motive needed, just show that the effect was discriminatory. Then burden shifts to defendant, to show that there was no reasonable alternative and there was a rational, and necessary business purpose. Burden then shifts to P to prove that business purpose is pretextual.

and civil rights act of 1866:

• Only color, no sex or handicaps and allows you to discriminate in favor of non-whites.

• Any real estate transaction

• Applies to everyone including mom and pop cases, but

• does not include advertising.

What rights do you get with a lease: says that lease is a conveyance of the right to possess and no one has a superior right to you, doctrine of quiet enjoyment: no one with superior right will come and bother you. But does the LL have the duty to give you ACTUAL possession? split.

• English rule: ll has the duty to give you actual possession. Property needs to be open for possession. Common law. FIRST DAY ONLY! Majority rule.

• American rule: LL cannot control the actions of holdover tenant. AND tenant can contract to protect his rights to entry. New tenant has standing to sue because new tenant has the legal right to possess!

QUIET enjoyment has not been breached by the mere knowledge that there is someone with superior right. There has to be an assertion of the right.

You cannot contract out of a duty to convey legal possession, but you can do it for actual possession.

SUBLEASES v. ASSIGNMENTS:

• under common law: if the instrument transfers the lesee’s estate for the remainder of his term, then it’s an assignment, but if the instrument only conveys a portion, even for a day less, of the estate remaining, then it’s a sublease because the lessee retains the right to reentry and a reversionary interest. This is regardless of the form or the parties intention.

• Modern trend: ascertain the parties’ intention. Read the contract in light of the surrounding circumstances.

neither a sublease nor an assignment liberates the first tenant from his responsibilities. Under an assignment, the privity of estate might be terminated but not the privity of contract. A sublease affects neither privity. WHAT IS PRIVITY OF ESTATE? The party who has the right to possess on the last day of a period and will transfer the legal right of possession to another party, those two parties are in privity of estate. It’s the equivalent of privity of contract but when you look at lease as conveyance. So lease as contract gives rise to privity of contract. Lease as conveyance gives rise to privity of estate.

So there are two types of privity:

• contract and

• estate.

What happens if a lease is ended prematurely and there is a sublease or assignment?

• If it ends due to a breach from lessee, then LL is entitled to possession as against the sublessees and assignees.

• If it ends because original lessee surrenders it, then the LL and assignee or sublessee are in privity of estate and the get possession as against the LL.

Landlord’s approval does not break the contract privity, unless there is a novation, but a LL is not likely to enter into a novation.

It is construed as a sublease if you retain the right to re enter because you have not relinquished all your rights even if it was for the duration of the lease. BUT if you look at intent, since you don’t expect that the other person would default, or you would not have entered the agreement, your intent was to assign!

You can create a third party beneficiary by having the subtenant agree in a contract with tenant one that he will be liable to landlord. In that case, the subtenant will be in privity of contract with landlord, even if he is not in privity of estate.

So, see if they were parties to the same agreement or if second tenant assumed the liability to the third party beneficiary.

Assumption clause: Assumption clause automatically creates a third party beneficiary and you can have a privity of contract between the subtenant and landlord, but it doesn’t change privity of contract between LL and tenant. Only novation changes that relation and then you have privity only with a new tenant.

b. Under doctrine of Subrogation, a tenant can step on the shoes of the landlord and sue anyone the landlord can sue even if he’s not in any kind of privity.

T1 can sue to recuperate from t3 if he pays. He steps in L’s shoes. Also, T1 cannot sue T2 under doctrine of subrogation because neither L nor T1 can sue T2, but he can sue him under privity of contract.

Approval Clause: Construe it narrowly.

• If it says to get permission for subleases, you don’t need it for assignments.

• So you don’t need it to prohibit both things because it goes against the general public policy of encouraging productive use of land.

• Can a landlord arbitrarily withhold consent?

o Common law yes. Property based conveyance.

o Modern trend , contract: you have to act reasonably, you have an implicit duty of good faith so you need to have a commercially reasonable reason to deny approval. Jx. are split. On a residential lease they are more likely to follow common law rule that ll can contract out assuming an approval clause.

o California: commercial leases you require good faith. On residential leases you can be arbitrary.

• Rule in Dumpfors case: if it’s a sublease, it goes with the land, but if it’s an assignment it needs to be reinserted so you need to specify that it has to be reinserted. Modern trend, the parties expect it to run with the land.

Landlord’s remedy for breach:

• Common law: one party’s material breach did not absolve the other party from their duty to perform under the agreement. So if she doesn’t pay or otherwise breaches, it doesn’t mean that LL can go and take possession. Your only option was to sue for damages and/or ejectment. LL’s duty to perform was independent from tenant’s duty to perform.

o LL has to show material breach and right of reentry. Always smart to add the clause anyway, because not every Jx. has this. Before you kick him out you need to show LL has the legal right to possession.

▪ Re-entry has to be peaceable re-entry.

• Modern trend the clauses are dependent so it shifts the legal right to possession to LL.

OFFER TO SURRENDER.

• Written EXPRESS OFFER. As a landlord do you have duty to accept? No, not in common law or in modern trend.

o Modern trend: views as contract and implies a duty of good faith. So LL has duty to mitigate due to the ongoing relationship established by contract. Constant interaction: care for the other, help the other party, etc. Fair dealing. Much more than a one time conveyance. So LL has to try to help the tenant by reletting the land and mitigating losses. Some courts place a total bar to recover if you cannot make that proof. Modern trend only partial bar to recovery only affects the amount. LL has the burden of proof that he mitigated.

o Common law views it from property perspective of lease: tenant still has possession and LL has no rights to get someone else to posses! He gave Tenant legal right to possession for block of period and he doesn’t care what he does with it. No duty to do anything.

o Letter effectively terminates the lease and tenant may be liable for some remedies under anticipatory breach. And it also gives landlord right to possession.

o If they accept the offer to surrender you’re only liable for past rent.

• implied offer of surrender: tenant just leaves without saying anything, vacates (leaves jx and never intends to return) .

o Careful that your mitigation is not construed as being for the benefits of the LL because it will be deemed as an implied acceptances. If you relet it, and put money in escrow it does not constitute a novation. Tenant is still liable because it is a de facto sublease or assignment. BUT if you accept surrender and mitigate, it constitutes a novation because LL assumes possession again.

o Three key variables in whether LL relet for his or the tenant’s benefit:

▪ term (you only lease the tenant’s right to possession)

▪ If there’s a bigger amount you have to set it aside for tenant.

▪ Substantial remodeling for new tenant will be deemed as if you’re doing it in your benefit so you can keep the tenant there.

o If LL relets for the landlords benefit, it’s an acceptance of the offer.

o When the LL doesn’t expressly accept, but impliedly accepts surrender by leasing in his own benefit, you have implied acceptance and cts will construe as such. In that case, it severs the duty of the original tenant. So if you want to keep the tenant on leash, you rent for exactly the same money so that the court construes it as for the benefit of the original tenant and not for yours.

o If you have several units empty, You have to show it like any others because land is unique. Reasonable efforts to rent that unit. Treat like any other units. In most situations, the burden is on P to prove he did not mitigate. But in this case, the LL has duty to show he properly mitigated because he’s in the best situation to prove it.

Landlords who breach:

• 1- covenant of quiet enjoyment. constructive eviction under a breach of the covenant: LL gives you the right to enjoy your property without being disturbed by THE LANDLORD OR ANYONE WHO ACTS UNDER AUTHORITY OF LL OR SOMEONE WHO HAS A SUPERIOR RIGHT TO POSSESSION THAN THE LL.

• Can be breached in three ways:

o Physical eviction: LL excludes tenant from premises. Terminates lease.

o Partial actual: excluded from part of the premises. If done by LL you don’t have to pay rent. Third party with superior rights, you only pay for the part you’re still in possession of.

o Constructive eviction: LL acts or fails to provide service they have a legal duty to provide. Elements according to Wendel:

▪ LANDLORD had a duty,

▪ he breached it, and

▪ it rendered the premises substantially unsuitable or interferes with the enjoyment of the premises for the purposes for which it was leased,

▪ you have to let the LL know there’s a problem and give him time to cure the problem (opportunity to cure).

▪ Then you can leave and claim constructive eviction.

▪ condition was permanent. Now construed as “regular reoccurrence”.

o common law, the duties were independent so you had to continue paying rent even if evicted because their breach did not excuse yours. Modern courts now view the clauses as dependent.

o If it’s not that serious, you can sue for damages, but you cannot vacate. Even if you have some risks. If you did not leave within reasonable time, you may be deemed as waiving it!

o Use as defense, not sword.

Duties of Landlord: To prove breach you have to prove duty. There are two types of duties: express or implied. Common law assumes you lease the land only so very few duties were implied in the landlord.

implied (memorize these for test) DAM UF (duty to disclose, abate nuisance and immoral conduct, maintain common areas, Undertake repairs, Fraud abstain)

• Disclose latent defects (known or should have known to the LL, tenant cannot see them upon inspecting) he has duty to inform

• Maintain common areas.

• Undertake promised repairs in reasonable amount of time.

• Abstain from fraudulent representation of condition.

• Abate immoral conduct or other nuisances.

And for short term furnished leases: hotels and boarding houses, the duty is to provide

o Implied duty that premises are habitable. (which of course implies heat!)

You can also have contractual explicit duties such as providing heat or water, etc.

• ***Doctrine of constructive eviction is only used as defense against a LL asking for back rent. **** you cannot sue LL under it. You cannot contract out of it either: it goes with the duty to provide legal possession.

illegal lease doctrine: (don’t use this in exam except briefly)

• The contract is illegal and tenant doesn’t have to pay rent, because the housing unit fails to comply with housing code and statutory regulations about what a house needs to have.

• And it’s called a tenant at sufferance. Court will bootstrap into tenancy at will. Rent will be determined at reasonable fair mkt value in light of what’s wrong with it. So, you don’t have to vacate, but it is only a defense when LL sues for non-payment.

• Exceptions:

o one day doctrine (1- only applied to conditions that were present before lease, not after lease),

o 2-substantial violation of housing code or statute, not minor; and

o 3- LL has to have actual or constructive notice.

2- doctrine of implied warranty of habitability. Tenant’s duty to pay rent is contingent on Tenant’s duty to provide and maintain premises that are reasonably suitable for human residency (as measured by codes, mostly, health and safety of tenant, third reasonable person: reasonably suitable for human residency) but still LL has to be constructively notified and given time to remedy.

• Completely flips common law assumption of dependable clauses and makes them dependent.

• Not a one day doctrine unlike doctrine of illegal lease.

• Could be good for LL because economically L is in best position to make repairs and to increase value of your land . If T made repairs, they would probably be bad because even if they know how to make it.

• It doesn’t matter whose fault it is that there is a breach: no fault based. earthquakes can make water not come to the house and lanlord is still liable. It is a breach even if LL is not guilty.

o Exception:

▪ high crime area and ll has taken reasonable steps to reduce the risk. And, if tenant causes problems you cannot hold LL liable.

▪ NOT APPLIED TO COMMERCIAL LEASES. There’s a parallel doctrine called the doctrine of fitness for a particular use.

Remedies: Standard contract remedies:

• Tenant can make repairs, after giving notice, and get credit on rent. Only one time you can use self help as a tenant under modern trend.

• RECISSION: TERMINATION

• REFORMATION:PAY LESS

• DAMAGES: WHAT WERE YOUR DAMAGES FROM HAVING TO LIVE UNDER CONDITIONS:

o PUNITIVE: WILLFUL AND WANTON DISREGARD FOR TENANT’S SAFETY.

o COMPENSATORY: ACTUAL DAMAGES, DISCOMFORT AND ANNOYANCE, PAIN AND SUFFERING, EMOTIONAL DISTRESS, ETC.

If you don’t have these, your fallback is covenant of quiet enjoyment.

3- DOCTRINE OF RETALIATORY EVICTION: just like discrimination you have to show a valid non-retaliatory reason to overcome presumption of that if lease is terminated before six months from complaints. If it’s done after six months, you as tenant have burden of proof.

LAW OF SERVITUDES:

Easements should be contrasted with licenses and profits.

• Easement: “is the right to go on someone else’s land and use it in a way that would otherwise constitute trespass.” positive when they give you a right to do something on someone else’s land, and negative when they give you the right to restrict some activity in someone else’s land. Classic easement is for egress and ingress. Non-possessory property interest: allows you to use only not to possess. Two components to easement: burden and benefit. Burden on servient estate and benefit on dominant estate. Easement is presumed irrevocable. Easements are presumed to be fee simple.

Five ways to create easement:

• Express in writing: by conveyance. The next ones arise by operation of law and may not be recognized in all jx. It fixes the location. If it doesn’t, ct usually gives grantor rights to fix it as long as reasonable. If grantor doesn’t fix it, conduct of parties has fixed it. Once the location is fixed it is set in stone and easement is limited to that location. Common law, you have to get permission to move it. Modern trend as long as relocation is reasonable it’s ok and it cannot unduly burden easement holder. The holder cannot move it at all w/o permission. The holder of the easement has a duty to maintain it and the tort exposure. If both parties have use, then sometimes they share these. FSA

• License plus estoppel: license coupled with estoppel. As long as necessary to recoup expenses.

o If you give someone a license and

o someone reasonably relies on it to their detriment,

o and the owner knows or should have known that holder of license was changing position by making substantial expenditures in reliance. So: actual or constructive notice.

o As long as necessary to recuperate the expenditure. If the house burns down, insurance pays for it, and then owner of servient estate can stop.

o Some jx. only accept this estoppel theory, others will say that you cannot have easement you should have had it in writing because otherwise it violates the statute of frauds!

• Implied by

o Necessity: KEY CONCEPT IS BEING LEGALLY LANDLOCKED. Single parcel of land, severance and now you’re landlocked. can only be implied upon the parcel the severance of which caused the landlock. Not necessarily the easiest or closest.

▪ public waterway: common law: you’re not landlocked take a boat. Modern trend: they look at practical landlocked. So it begins to look like implied easement by necessity.

▪ YOU CANNOT OPT OUT OF THIS IMPLIED EASEMENT! EVEN BY CONTRACT. Public policy is against landlocked because it renders property unused. landlock. you cannot contract out of this policy because we don’t want unused land, so you get an easement .

o Prior existing use and at the time of severance it needs to be: (oops doctrine) FSA.

▪ apparent, (AT TIME OF SEVERANCE): person could have seen it by walking the land.

▪ continuous and

▪ necessary.

▪ Target facts: Single parcel of land with a Quasi easement and severance: part of the property is being used to benefit another part of the property before the severance. Law then assumes you have an easement because the parties intended for you to keep it and you just forgot to put it in as a reservation. She should have realized it was necessary and so it’s based on the presumed intent of both parties: new buyer should have walked the land and known of condition and she should have been more forceful and said something.

▪ If the implied easement is for the grantor is an implied reservation. So common law will say it needs to be “strict” necessity.

▪ If the implied easement is for the buyer, it’s an implied grant of an easement. cts looked at reasonable necessity: cost and difficulty of alternatives and whether price paid reflects expected continued use.

▪ Modern trend: abolishes differences and says that necessity and financial burden are just some of the things they will look at. They seem to blatantly just look at financial burden if it were not granted by ct. If not too much money, then ct will not grant it.

▪ Presume parties wanted to put in lease but forgot to put it in deed (oops doctrine)

Another implied in use is profit apendre: allowed to take profit from land so you get easement to go on land.

• Prescriptively: FSA but depends on circumstances giving rise to prescriptive.

o 4a. Prescriptive approach: Similar to adverse possession: claimant must show that:

▪ Actual entry

▪ Open and Notorious to give constructive notice. It has to be a path or some physical evidence or have to be seen or did in any way the true owner see you. Or underground pipes especially if the owner uses them.

▪ Adverse or hostile: The use of land was not permissive, not subservient. Owner has to do something more than just telling him that he needs to stop.

▪ Claim of right: you use it as a true owner would. Focus on state of mind objective v. subjective, and under subjective good faith v bad faith.

▪ Exclusive: not here. Difference between this and adverse possession. Owner can still use it so this element is altered because his use doesn’t have to be exclusive. No need to prove exclusive use. As long as owners use is not inconsistent with the adverse possessors’ use.

▪ Continuously: use cannot be continuous by nature! So you only have to use it as continuosly as someone who would have the right to use it would. Has to be the same path, not a different one. Just enough to put owner on notice. Tacking permitted.

o 4b- Lost Grant Theory approach: presumption that the person claiming easement probably had an easement and lost it. To secure a prescriptive easement under lost grant theory claimant must show that:

▪ The use of land was not permissive and also

▪ Owner acquiesced, did not object

▪ Lower threshold on owner, you have to do something to show that he never had the right to walk on the land in the first place:

← Hence a letter written stating that you are forbidden from doing it again interrupts prescription because it rebuts any claim of acquiescence.

o You cannot get a prescriptive easement on public lands (everyone owns them) and easements by necessity cannot give rise to prescriptive easements and since they end when the necessity ends, the use after that may become adverse and starts the time.

Reserving an easement:

• Reserve an easement: for the grantor only when you sell because you cannot have it before on your own property. Both under common law and modern trend.

• Except out an easement: Common law, you had to have the easement before the conveyance of the land. So except out was for previously existing interests. Modern trend you can except it out at the moment you convey the land. But that creates the problem that the grantor and the new owner have a copy of the easement but NOT the easement holder so it may be harder to enforce.

Term and termination of easements:

• Release by dominant

• Take back prescriptively(any easement except by necessity because we don’t want a landlocked piece of land!) by using the land in a manner inconsistent with the easement: plant stuff there, put obstacles in the way, put off fences, etc.

o CA statute is five years.

• Merger: easement owner buys the land.

• Stated conditions: when you set forth conditions for terminating the easement. So long as X is the holder, so long as it is used for egress, etc. or Expiration: By term being terminated or ending.

• Abandonment but mere words or non-use doesn’t imply release. It needs to be coupled with an affirmative act evidencing intent to release.

• Misuse of an easement means trespass and you can ask for injunction. If ct feels circumstances are such they cannot guarantee there will not continue to be misuse, then they will order termination based on misuse.

For all of them: You have to do an affirmative act to take away the easement. You can ask for a release of property interest and it has to be in writing.

Types of easements: where does the benefit run? With person or with land. Where the language is ambiguous the ct will assume appurtenant.

• Easement appurtenant: runs with the land to remote grantees, subsequent owners. Attaches to the servient estate: right goes to whomever owns the parcel of land that the easement benefits (dominant estate). Transferable, but may be made non transferable by making it personal and not transferable. Require a dominant and a servient tenement (estate). Therefore it’s fee simple absolute.

• Easement in gross: right goes to a person regardless of ownership of land. Only a servient estate. Maybe alienable or inalienable. May be transferable. Therefore it’s a default life estate unless you phrase it as “to Dan and his heirs”.

Scope of easement: It’s generally in the writing.

• Determined, for non-express easement, by circumstances surrounding the easement when it was impliedly created. Ambiguities resolved in favor of grantee. Subsequent conduct is relevant. Scope is assumed to foresee reasonable changes in the use of the dominant estate. For express, it’s read as is except for ambiguities.

• Location: fixed by owner or by use (see above).

• Purpose: is a different use included within the scope? Easements are presumed to include evolutionary changes but NOT revolutionary changes. Are cars an evolutionary change if you were given easement for carriages? Fact sensitive. Burden on servient estate underlies this policy.

• Scope of an easement appurtenant: The benefit of an easement appurtenant goes to every inch of the dominant estate. So, you have to do reasonable development of the dominant estate. What’s the surrounding area doing? Is it too much burden on servient estate. if he uses it to access another estate outside those inches, then you’re trespassing because it’s greater than the scope allowed. Owner is entitled to injunctive relief. general rule would grant injunctive relief because you don’t want to discourage easements misuse can end an easement.

• Devisibility and transferability: Appurtenant can be transferred and divised by selling property because it runs with the estate. BUT what about easements in gross? Modern trend focuses on intent: did the parties intend to make it transferable? They look for language that says “heirs (dead) and assigns (inter-vivos) ” Express intent. What about implied intent? If it’s a commercial easement like the one we have with PG and E because obviously you would want them to have the easement! No need to renegotiate. All presumed to be divisible and transferable unless they are personal in nature. Real intent to discourage devisilivity of easements in gross. One stock rule: if a profit or easement in gross is exclusive and vested in two or more persons the division is permitted but the easement or profit must be used as a single unit so as not to incentivate over exploitation. All owners of easement have to consent to use.

profit: license or easement coupled with right to take something off the land. Typically associated more with easements and person pays for the right.

License (doesn’t have to be in writing) is the same thing but it is

• inherently revocable.

• CAN be created in writing. a question of intent as to whether is license or easement if in writing

• Non- transferable.

• Anything inconsistent with the granting of permission is considered a revocation.

• If you grant permission orally, he’s only a licensee, you’ve given him a license only. Even if it’s in writing, the intention of the parties rule, what would the reasonable parties have intended by writing this.

• Licenses are personal, so death of a party will automatically terminate it.

Irrevocable license is when you sell something to someone and you have permission to come and get it or when you give permission to come and get their clothes from a property they vacated. Wendel did not go over this. VERY SHORT TERM IRREVOCABLE LICENSE.

negative easement.

• gives you the right to limit the uses a servient landowner can put his land to. It doesn’t give you the right to go on land but gives you the right to restrict their use. It limits conflicting uses: Negative externalities: one person’s use which has a negative effect on a third party that they don’t have to pay for: pollution. Before zoning laws, cts recognized that these negative easements would be of value. Cts decided they would only allow four types: Blocking windows (light), interfering with airflow in defined channel (air), lateral support (soil): cannot excavate in a way that your house caves in; interfering with flow of water in an artificial stream (water): irrigation. Don’t worry too much about these four types. In America besides those four you get:

o View

o Solar: you cannot block someone’s solar collector with your house!

o Conservation: in California you want to conserve the property. They can dedicate a conservation easement that they will not develop land.

o All these run with the land without qualifying them again. Negative express easements run with the land (dominant estate)

Covenants:

• You cannot prescriptively get a covenant.

• Unless it’s one of the seven negative easements, you qualify it as a running covenant. But it is very similar to a negative easement and came from the need for more negative easements.

• An agreement to limit negative externalities or conflicting land uses. Comes from contracts.

• When should a contract between two parties bind another party that was not a party to the contract? As long as you have horizontal or vertical privity.

• Horizontal: between the two original parties to the agreement.

• Vertical privity relates to the original parties and their subsequent grantees.

• You have to go around the horseshoe! Prove you have vertical privity.

• Covenants TRUMP ZONING REGULATIONS. They came before zoning and municipal ordinances.

• It depends on whether you want injunctive relief (equitable servitude) or damages (real covenant). If you want both injunctive relief and damages, you need to qualify it as both.

o Running covenants: If both parties are the original parties, it is not a running covenant.

▪ Equitable servitude (enforceable at equity: injunction). Three requirements you need to show that:

← Intent to run with land: Parties must intend it to run with the land. 99% will be created in writing and you have to say that you intend it to run to remote grantees: dan, his heirs and assigns, or “this covenant will run with the land”

← Covenant touches and concerns the land: in its core, it has to do with the land use. No factories, residential only. You cannot have something that says “Dan will babysit Wendel’s kids every Friday” because it doesn’t touch and concern the land. You can put those in because there’s freedom of K, but it will not be considered ok for this. Purpose has to be to limit negative externalities associated with someone’s use of the land.

← Notice of the covenant. For our purposes, when you record, it puts the whole world on notice. When you bought the land you knew this land came with this covenant.

• Constructive notice: by properly recording, you will be charged with notice whether you check or not.

• Actual notice: you read it.

• Inquiry notice: you heard a rumor that there was this covenant. Or a reasonable person would have been suspicious that the covenant existed, and you should have inquired and if you don’t, you’re charged with knowledge.

▪ Real covenants (enforceable at law)(damages)

← Parties must intend it to run with the land.

← Covenant touches and concerns the land: Purpose has to be to limit negative externalities associated with someone’s use of the land.

← Privity of estate (DIFFERENT FROM PRIVITY OF ESTATE AS WE SAW BEFORE in LL –tenants) The horizontal or the vertical, so you have to diagram because there are different degrees: turns on whether the benefit is running or the burden is running, so one or more of the original parties is not the one suing or being sued. When you talk about the running, you are talking about the vertical. 99% of covenants are appurtenant. Both the burden and the benefit are appurtenant. There is always a parcel of land. Line up parties as D’s and P and show who’s the benefit side and the burden side.

o Privity: to prove this go through this. (see paper sheet)

▪ Benefit: can only be retained by grantor for the land he still owns, at time covenant is entered into, cannot be given to a third party (neighbor darcy)

← Horizontal: No, For benefit to run, you don’t have to show any horizontal privity.

← Vertical: Estate any duration: it will probably run to anyone but an adverse possessor or a trespasser.

▪ Burden: Do they have a burden they have not met so you can sue them? if original party is the one you’re suing then yes, you can sue them.

← Horizontal: is there’s a covenant, and you’re suing the original party on the other side, there is horizontal privity. Or if you have a mutual relationship or a successive relationships between the two parties who are now next to each other: Mutual being: landlord tenant or easements relationships. Successive: there was a conveyance between two parties of a land interest other than the covenant.

• t will also apply to Tenants and easement holders because:

o Mutual privity : Shared property interest which will be ongoing.

▪ Landlord-tenant

▪ Easement

o Successive: grantor/grantee. IF you conveyed the covenant to the other original party in the same deed as you conveyed another property interest (or through starwman) then you have privity and you can sue the grantee of the original party. But if the only thing on that deed was a covenant, and there was no conveyance of a property interest (only the covenant) then the burden is not enforceable against the grantee.

• Vertical:

o Estate of the exact same duration. Original parties and all subsequent parties. Possesory estates and future interests. You can only convey what you have in order for there to be vertical privity! So if you have FSA and you give her a life term, there is no privity. But if you lease all your interest, then there is.

o

• Covenants are usually negative and when they started to become positive (you cannot let any trees grow more than 20 feet) the cts worried about whether they should permit this kind of positive action requirement to run to subsequent parties so they want to control these.

• If it’s the flip side of a negative they’re ok: Affirmative component: trim the tree. But it’s to comply with the negative: to not let the tree grow more than 20 feet. Cts permit it.

• Act is being performed on servient estate.

• Can you have affirmative covenant with an act not to be performed not on the servient estate: covenant is that they have to come onto my land and cut the grass. That’s not allowed.

• But if there’s an offsetting property interest flowing back to the servient estate, the cts will allow it. So, you can require payment of dues of subdivision houses through a covenant because the club house and pool belong to everyone and there’s an easement, an interest that allows use. But if the pool is like a mile away and owners are required to join club in order to use it, it’s probably going to be stricken down.

• Limited in nature and relative to touch and concern. If it’s off the servient and interest flowing from common area to servient estate back, what’s the interest and where is it located. If it’s affirmative look at nature of act and where is it to be performed.

• Doctrine of Standing: you show that when the benefit was created that it flowed to you. Benefit and burden have to be appurtenant . Standing is standing to sue. The benefit goes to the land retained by the party signing the covenant at the time the covenant was entered into. Not the individual, but the land. So, Jenna cannot sue Shelley for hunting even though she had benefited originally from the covenant between Dan and Wendel.

• Common scheme doctrine:

o Doctrine used to create covenants or to expand standing. a grantor who has two or more lots and conveys one with and express restriction on it, and the lots are so situated as to bear the relation,(if they’re grouped together and looks like they were all meant to be part of the same scheme) it will be assumed that the express restriction will be implied back to all the lots. (benefit runs to all of them.)

o This CAN be done expressly by developer, but isn’t always done.

o This expands who has standing.

o About half jx use this doctrine to create an equitable servitude where none was there. They will imply a covenant only in equitable servitude not in real covenant and only if there’s a common scheme.

o How many lots have to have the restriction in order to qualify as common scheme? In a case, there were 56 lots with restriction and the other 40 something don’t have restriction. Ct implies it back on all the rest of them. What about notice? If you read all the deeds by grantor, you should have known there was a restriction or at least have been suspicious.

o But the scheme starts with the sale of the deed that first uses the express restriction. So if lots 1-6 don’t have this restriction but 7-100 do , then you cannot restrict ever lots 1-6. And

o standing is not expanded to all! So not all of them would be able to sue lot 7 if he breaches. But, if you imply all of them have express restriction because they are part of the scheme, then they do have standing to sue. So use to expand standing or to create standing.

o But, just a third party beneficiary cannot get standing. C

o Common scheme only starts with the first lot that got it! So you cannot imply the covenant on any lots before. You can imply it only on subsequent lots. On both the creation and expanding uses you have to keep out any previous lots sold before the first express requirement. They are not burdened and they cannot be benefited either.

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