1) Property Outine

2) Nuisance (Court Imposed Land Use Control)

3) Nuisance (v. Trespass)-Deals with non-physical invasions that cause substancial and
unreasonable interference on land
i) Difference 1-Each person has right to use their land, so problem is reciprocal-so
balancing test allows judge to determine what he thinks is reasonable (Utility Harm
Test/Threshold Test)
ii) Difference 2-Negotiation Problem (Posner)-many people may be involved/holdout
problem/1001 person/Bilateral Monopoly
(a) =requires liability rule
iii) Coase Theorum
(a) Property Rule-Negotiations possible, so issue injunction and allow parties to
come to most efficient result (one with entitlement names price)
(b) Liability Rule- No negotiations possible=force sale at fair market value
iv) Bommer-Liability Rule because negotiations not possible, but court talked about not
being able to deal with larger societal issues, better left to legislature, but in effect
only acknowledges that D serves valuable public interest=scale on side of D
v) Spur-added compensated injunction (on D-liability rule) to go along with Entitlement
(Property Rule) to P/D, or Entitlement Liability rule to (D); here, public
nuisance=automatic injunction, even though lawful business
(a) Note-Coming to the Nuisance only a factor to consider
(b) Import of Foreseeability-If Spur would have foreseen incoming development,
no damages would have been awarded; Webb did foresee, so damages
required
(c) Now-Certain Rule-Can apply Coase
vi) Estancias-Utility/Harm test may not favor relief, if no societal interest on Ds side
(AC case) then no reason to deny injunction (said no shortage of housing)
(a) Negotiations did not work, but property rule given=no societal interest; and
court not keen on allow Carolingian system of liability rule because like
giving ED

4) Private Land Use Controls (Quasi-Contractual)

5) Easements
i) Appurtenant-Necessary for use and enjoyment of land; Gives right to dominant
tenement (benefited) over servient tenement (burdened); runs with the land; favored
by courts
ii) In Gross-Benefits an easement owner personally rather than in connection with use of
land a person may own (no regard to property ownership); no benefit to land, so only
a dominant tenement
iii) Express Grants
(a) Reservations-provision in deed creating new servitude on the land that did not
exist before as independent (Willard-easement can be reserved in favor of
third party)
(b) Exception-Provision in deed that excludes from grant a preexisting servitude
on land (cannot except an easement in favor of a third party)
iv) By Implication (goal: protect intent of parties at time of sale)
(a) Common Law-no implied easement; buyer only assume that details of sale
inside four corners of deed
(b) Modern Restatement View-Focus is not on policy, is on the intentions of the
parties
(c) Circumstances surrounding the initial conveyance/severance/subdivision show
that the easement was contemplated by the parties, because implied easement
must occur at the time of the conveyance because required as such
(d) Easement Implied from a Prior Use
1. Common Law-no easement by implication-here-Restatement carves
out exception for the retention of an easement were necessarily
implied
2. Van Sandt v. Royster-Sewer easement was necessarily implied at time
when servient parcel sold; circumstances of the sale made clear that
she intended and expected to retain this easement when sold the
servient parcel (Pipes and sewage are necessary in modern society)
(e) Easement Implied by Necessity
1. Must arise at time of conveyance/severance of parcels
2. Only endures as long as necessary; exists as a method of getting to the
intentions of parties-no policy question like AP; Estoppel; Prescription
3. Othen v. Rosier-Strict necessity is required here, not mere
convenience, as they found the roadway to be at the time of deed; does
not matter that land is completely surrounded
i. Requirements-unity of ownership of dominant and servient
estates; roadway is necessity and not a mere convenience;
necessity existed at the time of severance
v) Easement by Prescription
(a) Requires: Open and Notorious; Continuous; Under Claim of Right
(b) Can arise after conveyance
(c) Most state-can acquire though easement also used by servient owner, so
exclusivity requirement different than AP (claimant need not be only one
using, but their right to use land cannot depend upon a like right in others)
(d) Policy-Much the same as AP; Statute of Lims imposed in which previous
owner must assert claim to repossess; Use of Land; Reward
Reliance/Expectations
vi) Easement by Estoppel (equitable doctrine; many jxs dont recognize this
doctrine - uncertainty)
(a) Diffs with prescription: No Statute of Limitation no set time period, may be
established at any time; No requirement of Hostility
(b) Requires-Permission, acquiescence; Significant reliance in forming
expectations a reasonable person in position of landowner would have formed
(c) Can arise after conveyance
(d) Basis-protection reliance expectations of dominant tenement where its stakes
are extremely high, and servients extremely low; makes negotiations
impossible
(e) Hollbrook v. Taylor-Roadway easement given by estoppels where, in reliance
on tactic consent of owner in their allowing dominant tenement use of
easement, the person acquired an interest (also took into account the
construction and improvements made with considerable expense)
(f) Policy-Use of Land; no sitting on rights; protect expectations
(g) Why no AP by Estoppel-because would not just be taking one stick out of
bundle like easement, would be taking whole title
vii) Public Trust Doctrine
(a) Matthews v. Bay Head-Fiction-dry sand always belonged to public, was never
part of bundle of owner, always existed at common law (note-DIBE destroyed
overnight, and right to exclude trumped
1. Narrow Reading-Dry sand is public land, so property owners must
allow reasonable access (easement) to such
2. Broad Reading-Only applies to quasi public entities
viii) Scope of Easements
(a) Brown v. Voss-(A,B,C parcels, B dominant, extending home to C, A is
servient, blocked easement, dominant spent much money on improving land-
if injunction granted to servient, C would become unusable; could not use the
property in the way they anticipated at time they bought it)(stakes high to
dominant, low to servient=balancing test)
1. Dominant was in violation of the easement, because only applied to B
(Generally-an appurtenant easement to a particular parcel may not be
extended to other parcels)-but court used it equitable powers (balanced
the equities-particular facts, circumstances, equities, actual and
substantial injury an injunction would eliminate) to deny injunction to
A (no property rule to A, only liability rule-like Boomer, Estancias)
i. Note-use of liability rule-negotiations would not work (Guido,
Economic Logic) so cannot negotiate most efficient outcome of
injunction
2. So A-sat and watched B rely on easement, sink money into property;
A has much leverage over B,C so no negotiations possible; no
unreasonableness by B,C, no harm, no increased burden, intensity, use
of easement for C same as that for B-singloe family home=liability
rule to A ($1 paid by Plaintiff for trespass outside easement)
3. Policy-Use of land, expectations; emphasis not placed on right to
exclude; Sanctity of the home perhaps
4. Note-Court recognized that Dominant entitled to use servient in
reasonable manner necessary for convenient enjoyment of servitude,
manner, frequency, and intensity may channge due to developments in
tech and accommodations, normal development of dominant estate or
enterprise benefited by it
(b) Dissent-Invoked idea of necessity of clean hands to invoke equity-Dominant
should have attempted to negotiate first instead (Stemberg idea); not innocent,
and relative hardship test reserved for innocent defendant with no knowledge
or warning that they are encroaching; should not be able to buy right to
commit a tort, guilty=no invocation of balancing the equities; Browns created
the situation; would be a continuing trespass, damages immeasurable, so
property relief is injunction
ix) Termination of Easement
(a) Presault v US-Railroad easement, must deconstruction, still paying taxes and
fees, wanted to turn it into a public trail; Presault prevailed
1. Who owned the fee simple (Court-though deed said fee simple, when
it is forced, Government [or Railroad, p. 834] only takes enough title
that is necessary to effect purposes, b/c forced sale, not negotiations) -
Court concludes that railroad purchased easements, not fee simple title
2. What was the scope of the easement (only railroad tracks, more intense
use when for public, not a natural development to replace rail with
trail, not foreseeable so would not have been contemplated or reflected
in price paid)
3. Was the Easement Abandoned (Court-yes, even though still paying
taxes and fees, this is only due to lazy or overzealous bureaucrats (p.
838)-important things=tracks removed)
6) Covenants and Servitudes
i) Three requirements: 1) intent that the benefit and/or burden of covenant run to
successors of original parties; 2) notice on the part of purchasers of the original
promisor; 3) covenant touch and concern the land; (4) Some jurisdiction require
vertical privity for the benefit to run with the land)
ii) Person placing voluntary restrictions on their property, along with neighbors, for
reciprocal advantage of all; protects and increases value when all land is restricted
iii) Covenant runs with the land (Contracts do not)
iv) Require assignee have notice (actual or constructive) before can be enforced against
that person
(a) Note-Horizontal and Vertical Privity-Policy behind this requirement for
benefit and burden to run is notice, but Tulk overcame the problem
v) Tulk v. Moxhay-Largely does away with horizontal and vertical privity requirement
for a equitable servitude (now covenant running with the land) to run (without
horizontal privity, or vertical privity for burden to run; benefit runs to all assignees),
as long as the purchaser had notice (actual or constructive) of it when he bought it
(note-equity case, enforced with injunction)
vi) Creation of Covenant
(a) Sanborn v. McLean-D sought to open gas station in neighborhood dominated
by residence, zoned for such, reciprocal negative easements imposed on 53 of
91 lots; D lot had no covenant in chain of title, court found that came from
single common owner, and though D lot had no mention of it in their deeds,
other that were executed did
1. So where common owner sells portion of land with restrictive
covenant attached for benefit of retained, the servitude becomes
mutual, as long as purchase was made with notice (actual or
constructive)
2. So implied that other lots are restricted by negative reciprocal
covenants if neighboring ones are sold with such; common owner
required, not mere conformation with general place
3. Policy-unreasonable restraint on land to have one portion restricted,
and other not, because nobody would want to buy knowing this
(Restrictions on land only make sense if they are
reciprocal)(Fairness-unfair to allow one to destroy character of
entire neighborhood)
4. Notice
i. Constructive (Inquiry) Notice-uniformity of the neighborhood;
gone to county clerk, seen that the neighbors were restricted
and they were benefiting through it, they were also burdened
(Problem-Topographical differences, etc-sometimes will not be
able to have inquiry notice
7) Affirmative Covenants
i) Common Law-Affirmative covenants did not touch and concern land, so did not run
with land (fear of overburdened parcels, overburdened courts)
ii) Neoponsit v. Emigrant Industrial-P sought to foreclose lien on D land that had
affirmative covenant attached to it=fixed sum for upkeep of roads, paths, parks,
sewers;
(a) Touch and Concern-Any covenant imposed on a parcel that affects property
values of that or related parcel touches and concerns land, so runs with the
land(said that upkeep of property, commonly held by all through easement to
beaches, equally benefited owners, comes with a burden that will run with
land-avoid holdout=mandatory fees)
1. Pre-Neoposit-To touch and concern=covenant needed strong, tight
connection with the land
2. Neoponsit-Any covenant that affects value of land=touch and concern
3. Modern (restatement)-All negative and affirmative covenants assumed
valid unless they violation public policy, Constitution, or the Law
(does away with T and C)
(b) Vertical Privity-Usually, only Ps that own property benefited by covenant
may enforce covenant, but here found that the organization was convenient
instrument by which property owners may advance common interests (So neo.
May maintain suit for enforcement of affirmative covenant)
1. Common Law-No privity of estate because association did not own
any land/successor to land (pierced this fiction of corporation
2. Modern View-Vertical Privity is Standing to Sue Issue (person must
be affected by covenant/have a property interest in it to sue (HOA
clearly fall in this group today); Not required for the burden to run, one
only needs V. P. if they seek to sue to enforce covenant (benefit)
8) Scope of Covenants (and Public Policy Issues See Pg 766 for Restatement)
i) Hill v. Community of Damien of Molokai-AIDS home in neighborhood; sought to be
excluded by covenant because limited to single family residence; noticeable
increase in traffic; Court was called upon basically to interpret the term family
(policy kept in mind)
(a) Ambiguous family-included as land use or moral issue
1. Two holdings-either covenant is consistent with Public Policy (ie-free
use of land, removing barriers for the disabled; FHA policy of using
family to include group homes, deinstitutionalizing disabled and
integrating them into mainstream), by saying family can be
unrelated; or if family is ambiguous, and excludes disabled, then
violates Pub. Policy, FHA, and struck down
2. Note-Traffic increase said not to be concern of covenant, only
structural appearance-so this is no go
3. Note-Touch and Concern-violation of public policy, so would not
touch and concern land, not valid, would not run with the land
ii) Shelley v. Kramer-Held that racially restrictive covenant=non-enforceable (Private
individuals may create these, but a court will not enforce them
9) Termination of Covenants (See Restatement Pg. 791, see also 797)
i) Western Land Co v. Truskolaski-Developer subjected lots to covenant restricting to
SFH, no biz; Developer sought to develop, said nature of neighborhood changed
(a) Change of condition unimportant as long as original purpose of cov. can still
be accomplished, substantial benefit still inures to homeowners; zoning
changes and greater value of other uses unimportant, distinct and sporadic
violations will not constitute waiver or abandonment of RC (note-border lots,
though supposed to be reciprocal, is where lin drawn)
(b) Policy-Expectations
ii) Rick v. West-P owned land with Residential Use RC; D owned small parcel that
conveyed by P predecessor, objected to Ps attempt to put in hospital; P sought
declatory that RC no longer enforceable, and that D limited to Pecuniary; Held that
changes in subdivision where substantial enough to have RC deemed outmoded
(a) Where RC not outmoded, affords real benefit, and not released, court will not
balance equities, quate advantages and effects, or award liability rule-will
enforce
(b) Note-P elected to promote rez, impose restrictions, Defendant relied on
them=Policy, protect expectation, intent of parties
(c) Note-Case was 7 yrs before Boomer; note that Boomer, Voss, would balance
the equities here; and Economic logic would say negotiations impossible, so
liability rule
iii) Pocono v. MacKenzie-Sought to abandon premise, so would not have to pay taxes-
still owned in fee simple, recorded deed and perfect title=no abandonment (perhaps
why common law disfavor affirmative covenants)
10) HOAs
i) Owners of Fee Simple, Persuant to Law of Servitudes, Pay Corporation, to Maintain
Fee Simple (Common Law Doctrines-which governs what HOAs can and cannot do,
and Standard of Review)
ii) Note-Recall Neoponsit-HOAs have standing to enforce covenants (Touch and
Concern policy as well)
iii) Nahrestedt v Lakeside Village-RC against cats, dogs, etc in condo complex; court
found that CC&Rs in recorded dec. HOA must be enforced unless unreasonable;
Recorded restriction presumed valid and will be enforced uniformely against all
residents of HOA unless is arbitrary, imposes burdens on the use of land it affects that
substantially outweigh restrictions benefits to development residents, violates public
policy, or has no reational relationship to the purpose or function of the development.
Inquiry done by reference to development as a whole, not facts specific to objective
party (like Reciprocal covenants, no value unless uniformly applied-protects
expectations, and give predictability
(a) Note-cats not having negative impact on anyone, but CC&Rs restrict
(b) Dissent (Arabian)-Fee Simple Absolute outlook-Sanctity of Home takes
precedent over commonality (Delfino, Sawada); no concern with admin
burdens, fairness more important, and should prevail over certainty to take
account of human aspect
iv) Original Declarations v. Later Enacted Rules by Board of Dir.
(a) Original-presumed valid unless unreasonable; have notice, so voluntarily
undertook covenant (Economic-Can walk away), makes many courts oppose
any review of OGs
1. Problems-costly to leave; interference with sanctity of home;
contracting away right to change mind in future; may be impediment
to optimal usage of land in future, courts want to ensure legitimate
purpose (ie-restraints on alienation, Labor Theory; RAP; Ideological
Commune concerns; Shelley rationale-against public policy-ie-
Theosophists of US-Court said that spiritual restrictions to close to
religious restrictions, struck down declaration as violation of PP)
i. But-Exclusionary (Shelly) make society absorb spillover;
Inclusionary-anyone can join if conform to covenants
(b) Subsequently Enacted Rules-Burden placed on proponent to say why
reasonable; higher level of scrutiny

11) Government Regulations/Land Use Controls

12) Generally-Exercise of police power to protect health, safety, welfare, and morals (Police
power reside in state, but all states have Enabling Acts that delegate zoning authority to local
governments)
13) Standard State Zoning Enabling Acts
i) Delegate numerous power to regulate and restrict differentareas
ii) Requires-Planning or Zoning Commission (citizen appointed, recommends comp.
plan and zoning ordinance to City Council, who enacts, Commission can recommend
amendments; Board of Adjustment-Zoning Appeals, make certain regulations do not
operate inequitably on part. parcels, may grant variances, special exceptions
iii) Comprehensive Plan-Statement by local govt objectives and standards for
development
iv) Zoning=advance over common law nuisance (Boomer-court not equipped to deal
with overall public interest, too many people being affected in too many different
ways); and Covenants-hold out problems
v) Euclid v. Ambler-Emphasis on rigid separation of uses; SFH trumps everything;
Point-Zoning Enactments will be presumed valid unless clearly unreasonable or
irrational (Elevation of Legislature, seen as more fit to deal with land use issues)
(a) Note-no unreasonable use of land, bought to profit from natural expansion,
but comprehensive plan constitutional-municipality may govern as it sees fit
(b) Rationale behind case-Comprehensive Plan by Experts, not judges, so
advance over common law; but, use Nuisance Law to give legitimacy, said
have always separated inconsistent uses (gives validity to controversial
subject)
(c) Note-Zoning-Protect property values=everyone restricted; people see this
zoning as a right
14) Non-Conforming Uses
i) Generally-Existing use not in compliance with zoning ordinance
ii) Vested rights/Non-Conforming Uses and Competing Policy Interest involved-Owners
rights and expectations v. Public interest in uniformity of zoning, and ability to
change zoning to reflect changing environment
(a) Vested Rights-Process of building (sufficient commitment may give
protection-factors-how far developer gone in obtaining govt approvals;
money spent in good faith; investment)=honor expectation, gives certainty-
allows building/housing costs to remain low; con-locks zoning in place)
(Estoppel-reliance on issuance of permit, make substantial expenditure after
make reasonable inquireies into permits validity
iii) Problems-Zoning may cause expensive moves, and eliminate important uses; but non-
conforming uses may give monopoly power
iv) PA Northwestern Distributors v. Zoning Hearing Brd.-Adult book store, enacted
zoning ordinance to remove, gave 90 days to conform; held-amortization and
discontinuance of lawful pre-existing non-conforming is per se confiscatory and
violation of Penn. Constitution
(a) Majority-is vested right to continue, so amortization period is of no sign.
(b) Concurrance-balancing test should be used; cannot lock uses into place
because of previous uses-would disallow uniformity
(c) Policy (v. Euclid)-speculator v. party that labored; no reliance interest v.
reliance interest that would be able to continue use
15) Flexibility and Zoning (Variances/Special Exceptions)
i) Everything cannot be anticipated in comprehensive plan; but returns to case by case,
common law analysis, not centered on comp. plan; and not overseen by judges,
instead local boards subject to cronism, political pressure
ii) Variance-Violation of a zoning ordinance that is allowed by zoning board of appeals
because of hardship related to the property that will result without such (ie-property
will become useless)(Board may exercise discretion when granting)
(a) Most litigation arises from granting variance-why-Wait and See zoning-
Initially zone very tight, allows such to become a source of revenue
(unconstitutional to raise property taxes in some areas); extract concessions
from developers
(b) Common v. Westwood Zoning Board-P owned vacant lot, P homebuilder
bought on condition that could construct SFH; minimum frontage requirement
not met, sought variance, denied by Board of Adj.; Appellate court affirmed;
Higher Court reversed
1. Positive Dimension of Granting Variance-Undue Hardship not of
ones own making must exist, and steps to mitigate must be taken
i. Undue Hardship-no effective use if denied (right not to have
land zoned into inutility, but reasonable restrictions may be
imposed, no right to put to most profitable use)
2. Negative Dimension of Granting Variance-Variance must not work to
detriment of public good, or undermine spirit, purpose of
comprehensive plan
3. Note-In case court noted Aesthetics/property values proper zoning
purposes
iii) Special Exceptions-Use permitted by ordinance in a district where it is not
necessarily incompatible, but where it may cause harm; authorized under conditions
that insure their compatibility with surrounding uses
(a) Cope v. Inhabitants of Brunswick-Exception denied to P for apartment
building construction; Constitutional challenge of absolute power ordinance
gave to Board to determine if use would adversely affect health, safety,
general welfare, and where use would alter characteristics of surrounding
props.-Held-improper delegation of legislative authority to board, no
sufficient guidance to ensure const. guided discretion of exception process-
Delegation of authrotiy to a Board must be limited by leg. standard of what
will not ordinarily be detrimental or injurious to neighborhood; because no
inherient authority in Boards, like municipalities to regulate use of private
land (enabling acts-Boards only to apply standards set by Leg.)
16) Zoning Amendments and Spot Zoning (LULU)
i) Wait and See Zoning (Variances to be rare; SEs are part of Leg. Plan; Amendments
are neither-just come to Leg. and ask to rezone, so undermines Comp. Plan)
ii) Spot Zoning-Zoning Amendments invalidated as legislative acts unsupported by
rational basis related to promoting public welfare; applies to zoning changes limited
generally to small plots, that establish an island of non-conforming use within larger
zoned district that reduce value of conforming uses in rezoned or abutting plots (can
lead to pol. Abuse; anti-comp.; monopoly power; does not serve Hold the line
iii) State v. Rodchester-Develop of condos applied for rezone, planning dept
recommended against, but council passed it from SFH, low density, to high density
rez.; Review sought because said to be quasi judicial act-rejected-court held that
Muncipalities adoption or amendment of zoning ordinance act in legislative capacity
under designated policy powers, and as legislative act, will be presumed valid unless
show that no support relating to promotion of public health, safety, morals, or general
welfare. Court also held that zoning ordinance does not have to be consistent with
land use plan, just that land use plan be adopted before orig. ordinance
(a) Classic LULU-more traffic, kids in school, etc; but okayed because said
similar uses nearby
(b) Fasano-view that rezoning of single tract was quasi judicial affecting rights of
few ind. more than public generally, so burden placed on proponents to show
zoning is reasonable-this was counter to belief here that Leg. best suited to
determine what zoning class best serve PW; Fasano=reaction to move away
from comp. and towards discretion and flex., proponents of de novo review by
courts of leg. decision (put Leg. run on platforms)
17) Aesthetic Regulations
i) Initially, Euclidian=protect health and P Safety; Aesthetic alone not enough; but
expanded=Regs. Not as conteversial, can say value of regulation=protect housing
prices
ii) State ex rel. Stoyanoff v. Berkeley-building permit (no variance, SE or rezone needed)
denied by architectural review board; held-Citys enactment of zoning ord. and
procedures for determining if proposal complied, or offended, was to be presumed
valid, only reviewed if oppressive, arbitrary, or unreasonable, or infringed on valid
existing non-conforming use-modernistic residence in traditional area not arbitrarily
or unreasonably exclude on basis of protective general welfare of community
(a) Court here recognizes that aesthetic consideration alone not sufficient to
validate land use reg, because very subjective, but add property values gives
objective-so valid
iii) Anderson v. City of Issaquah-walk around the neighborhood; P went for approval at
devl commission, made numerous changes; subjective criteria used; denied because
did not fit concept of surrounding area-no clarification given=code section gave no
effective or meaningful guidance to applicants, design professionals, or officials
responsible for enforcing the code=void for vaguenss and unconstitutional=common
men had to guess at its meaning, so arbitrary discretion
(a) Note-unlike previous case, this court seems skeptical of subjective nature of
aesthetics alone determining regulations (no objectivity)
18) Controls on Household Composition
i) Belle Terre v. Boraas-Oridinance restricted use to 1 fam. Dwelling-family meaning
one or more related persons; or number of persons not exceeding two that unrelated;
D rented in violation of such; 1983 claim declaring unconstitutional; Held, not
unconstitutional-said that police powers not confined to elimination of filth, stench,
unhealthy places, but may zone where family values, quiet seclusion, clean air make
sanctuary for people
(a) This case=first time SC spoke of zoning since Euclid-; at this time challenging
separation, uniformity, suburb, SFH layout; this was reaction in updating and
justifying Euclidean zoning-saying nothing wrong with completely planned
lifestyle, where can chose neigbors
(b) Note-Case does away with fictions, and necessary link with property
values; Aesthetics by themselves okay (policy powers-could regulate beauty,
safety)
(c) This case differs in that, not that every use has place, but that entire uses can
be excluded from town (excutionary zoning)-family unambiguous in relation,
marriage, birth, adoption (State courts cut back, but still good law-cannot say
socioeconomic/lifestyle promoted outright though
(d) Dissent-said is Moral Regulation, concern being stability to property values
and lifestyle-because if was Land Use Ordinance, could have restricted
numbers, not blood, so seemed to be aimed at excluding different lifestyles
19) Eminent Domain
i) Eminent domain is a taking of property that requires compensation. (Liability Rule-
forced sale at fair market value); Zoning is different in that is the regulation of use of
land, can regulate into worthlessness (generally) without compensation
(a) Cuts off negotiations; Violates right to exclude
ii) Legitimization (2 Views)
(a) Inherent in Sovereignty-Govt use of ED for the public good; Govt is able to
think and develop a comprehensive plan while considering interaction
between present/future uses, public interests, and public policy (Idea that
CP>Common Law) Also, ED is the only way for Urban Areas to complete
with Suburbs, allow the razing of large, already developed areas in order to
further the public good (cannot use Wait and See)
(b) Posner Logic-Prevent holdouts and bilateral monopoly, so ED is appropriate
in cases where this could be an issue (consistent with the application of
liability rule); Not important if dealing with govt or private, because ED is
outgrowth of common law (ie-Boomer=Private eminent domain)
iii) and Public Use (and what limits on ED to regulate/take with Compensation)
iv) Kelo v. City of New London-Development plan to revitalize downtown; Pziler come
in=hopes for new business; holdouts; Holds to Inherent in sovereignty,
comprehensive planning aspect of takings. Public Use=Public purpose in ED cases,
and the legislature will be given deference in determining such requirement=makes
govt ability to take land almost limitless, even in cases where ED quickly followed
by transfer to private party
(a) Note-court says that Legislature can undo what it has done (Cali only allows
ED in blighted areas)
20) Takings (what limits are there on takings/regulations w/out compensation)
i) and Physical Occupation (Liability Rule) (Per Se Rule)
(a) Loretto v. Teleprompter Manhattan-(NY law requires cable line, given $1 for
loss of value)-There is a per se rule that any permanent physical occupation of
property imposed by government, no matter how small, constitutes a taking
and requires just compensation.
1. Policy of Physical Occupation v. Reg=Right to Exclude most
important because need such to plan, form expectations; (but in
Causby, as here, this rationale hard to hold up because not going to use
the airspace, small invasion)
2. Physical v. Non-Physical (Regulation)=Trespass v. Nuisance
(metaphysical) (Causby case)
i. Posner logic-Treat this differently because 1) easier to id
injured party; 2) lower administration costs=Right to exclude
given no moral dimension, used, as is trespass, as a metric to
decide who gets rights
ii) and Nuisances Control Measures (Per Se Rule)
(a) Hadacheck v. Sebastian (Brick making regulated out of existence) A nuisance
control measure will not be a taking, and will not require compensation (Note-
at common law, bundle of sticks did not include prohibited activity=reference
to something uncontroversial to legitimize Regulation in its early stage
21) Regulatory Takings
22) Generally-A land use regulation is not a taking if it substantially advances legitimate state
interests and does not deny an owner of his LIBE or work a total economic wipeout on ones
land
23) At what point does a regulation affect property values to the point when they should be
considered a taking requiring just compensation? (keeping in mind that govt cannot pay
for all regulations)
i) and Goes too Far
(a) Penn Coal v. Mahan-(underground coal estate which govt regulation
prevented from being mined) To determine if a regulation goes too far, and
therefore is a taking requiring compensation, a court will balance several
factors, including:
1. If a nuisance is being abated
2. The relevant property interest, denominator being regulated
3. The impact of the regulation on the private party
4. The reciprocity of advantage involved (sharing of burden by
public/private)
5. Public interest being served
(b) This is a balancing, case by case inquiry which roughly weighs public v.
private interests
ii) ...and the Penn Central Balancing Test
(a) Penn Central v. NY-In determining whether a taking which requires
compensation has occurred as a result of a regulation, the public interest
involved in the regulation will be balanced against the private interest affected
thereby. Where the regulation seeks to further a compelling state interest and
does not overly interfere with a private parties expectations (DIBE), no taking
has occurred.
1. Expectations are whole ball game for private party, but Legislature
will always win unless is total wipeout (Presumption of Validity)
2. This is a case by case, ad hoc inquiry which limits ability of property
owners to determine if they will satisfy the balancing test=uncertainty
3. Compelling State interest=any public purpose (aesthetic reg., etc, so
puts the thumb on the scale for the Legislature because does not
need to be super compelling to be valid)
4. Does away with regulatory need to abate nuisance, now can just confer
benefits
5. No need for reciprocity of advantage-Regulation commonly burdens
some more than others
6. Does away with conceptual severance-instead focuses on character of
the action and the nature and extent of the interference with the parcel
as a whole (expectations)
7. Note-TRDs can sell these or use to develop on other parcels; eases
burden of land restrictions
iii) and Denial of all Economically Beneficially or Productive Use (Per Se)
(a) Lucas v. SC-Where a regulation deprives a landowner of all economically
beneficial use of their land, compensation must be given unless the use of the
land would be prohibited by BPOSL (ie-Nuisance control, public trust,
common law, but not those solely prohibited by legislation)
1. Total Wipeout=functional equivalent to physical appropriation (cannot
use)
2. Average Reciprocity of Advantage reintroduced-
3. Acknowledges unfairness that 95% wipeout cannot recover, but lots of
all or nothing situations
4. Reaffirms indistinction between mitigating harm/conferring benefit
from Penn, but relies on rationale that lack of distinction inurs from
fact that either may constitute a taking (no need for this fiction created
to justify regulation=Nuisance control cannot be used to determine
what is a taking
i. (Penn=even if regulation not mitigating harm can be valid;
Lucas=even if abating a nuisance, can be a taking)
5. Exception brings back Penn balancing test, only gives the court the
power to weigh the public interest v. private interest (because common
law determination)
i. Suggest step back from view in Boomer
(b) Problems-what are background principles of state law; what is the
denominator of determine total wipeout
iv) and Limiting Lucas (BPOSL and the Denominator Problem)
(a) BPOSL
(b) Palazzolo v. Rhode Island-State wetland regulation led council to deny permit
to build bulkhead to use land, but could use uphill portion, but still laid out
test for BPOSL; The fact that legislation or regulation was past prior to the
transfer of title does not automatically make such part of the BPOSL used to
govern the inquiry of takings. Though common law doctrines will always be
BPOSL, a balancing test, employed by the courts, not the legislature, will be
employed to determine if a regulation constitutes a BPOSL.
1. State may not put so potent a Hobbesian Stick into the Lockean
Bundle
2. Return to ad hoc inquiry
3. Note-Though not a total wipeout, still must apply Penn Central test to
determine if a taking has occurred
4. Court-Still believes that court is more trustworthy in considering all
common law principles to determine if regulatory stick is in bundle
(leg. will always favor itself)
(c) The Denominator Problem
(d) Tahoe Sierra Preservation Council v. Tahoe-3 yr moratorium on
development-To determine if a regulation has effected a total wipeout on
property, temporal as well as the metes and bounds of the geographic
dimension must be considered in order to view the property in its entirety. A
fee simple estate cannot be rendered valueless, and therefore there has been no
total wipeout, by a temporary prohibition on its use, because the property will
recover value as soon as prohibition is lifted
1. Conceptual severance into time does not work here
2. Still must be followed by Penn Test if determine no total wipeout
3. First English Church v. LA-compensation must be paid from the time
of imposition of a regulation that works a taking until its recission, or
it changes as to not constitute a taking
v) and the Problem of Extractions
(a) Extractions will be legitimate when they are used to minimize the impact of
new development, but becomes problematic when there is no link between the
development and the exaction
(b) Municipalities-One Big Power=Discretion over Land Use
(overzone=leverage)+One Big Problem=No Money (Property tax
problem)=Use Power to solve Problem
(c) PHASE I-ESSENTIAL NEXUS TEST
(d) Nollan v. CCC-CCC wanted easement to beach in exchange for permit,
because wet sand was extent of PTD; did not want to pay for imminent
domain to dedicate an easement;
1. Essential Nexus Test: An extraction will not be a valid regulation of
land if there is no essential nexus between the permit condition and the
impact of the development
2. Note-IF THE ESSENTIAL NEXUS TEST IS NOT MET, THEN
UNDERMINES THE COMPREHENSIVE PLANNING ASPECT OF
LAND USE
3. Note-CCC could just have denied permit using its discretion and no
taking would have occurred under exactions jurisprudence, though
perhaps under Penn (Dollan too)
4. Reciprocity of Advantage reintroduced-Loss of right to exclude cannot
be born by the Nollans alone, though the public interest may be
served by this easement
5. Policy behind Extractions-prevent agencies from engaging in extortion
6. Note-Penn Central could not be used because the right to exlude is
infrindged upon, so would be a per se taking excepted under Loretto)
7. readings of Nollan
i. Broad-Essential Nexus Test only applies where owner being
required to physically dedicate property
ii. Narrow-Essential Nexus Test applies to all exactions
(including fees)=If Policy is to prevent extortion, then does not
matter what form such takes)
iii. UNDER NARROW reading, reps another exception to
Penn
(e) Dollan v. City of Tigard-case where hardware store wanted to be expanded,
dedication of land for drainage, and also for use as public bike path; In
addition to the Essential Nexus Test, a Rough Proportionality in nature and
extent between the impact and the condition applied must be shown for an
extraction to be valid and is not a taking
1. Note-City must make some kind of individualized determination that
the required dedication is related in nature and extent to proposed
development
i. Acknowledged by court that this reverses traditional
presumption of legitimacy municipalities get when it comes
to regulation, because the burden of proof is on the city
2. Here, was found that public green way not roughly proportional to
condition, could have been a private greenway and been equally
effective (see Nollan Broad v. Narrow reading, because is a physical
occupation, affront to the right to exclude)

24) Transfers of Land

25) The Land Transaction
i) Brokers
(a) Licari v. Balckwelder-Broker/Subagent with express permission of a broker
who lists the property is a fiduciary to the principle and must act in good faith
with regards to him. They are under a legal obligation to make a
full/fair/prompt disclosure of all facts within their knowledge that may be
material to matters in connection to and which may affect his prnicples rights
and interests.
1. Brokers are fiduciary of seller, but in practice work for buyers, some
states require brokers to disclose this to buyer
ii) Contracts of Sale
(a) Executionary-title transfers some time after signing in order to give time for
inspections, financing, title searches. At the time of signing, earnest money
must be put down by buyer and held in a suspence account
(b) Note-Fixtures, and other amenities, now in contract, and only are required to
be in operative condition
(c) Contract-contingent on buyer obtaining financing/not on sale of buyers home
(d) Good and Merchantable Title-Title may include covenants, conditions,
encumbrances as long as they do not interfere with use and enjoyment of land
(e) Title Insurance-Provided by the seller
iii) Statute of Frauds
(a) Evidenciary and admin rule (Policy-avoid courts involvement in sorting out
truth between parties regarding oral agreements)
(b) Provisions of Importance to Real Estate: 1) Except for lease ofr less than three
years, no interest in land can be created or transferred except by an instrument
signed by party to be bound; 2) No action shall be brought for a contract of
sale of lands or interest in or concerning it unless unless there is an agreement
upon which such action shall be brought or some memo or not thereof shall be
in writing and signed by party to be charged
1. Note-at common law, selling of ones home was not unequivocally
refereable to contract
(c) Exceptions
1. Part Performance-Specific enforcement of oral agreements when
particular acts have been performed by one party (ie-possession by
buyer; payment of all or part of price; valuable improvements) that
unequivocally show that an agreement has been made
2. Estoppel-Where unconscionable injury would result from denying the
enforcement of an oral contract after one party has been induced by
other to seriously change their position in reliance on the agreement, or
when unjust enrichment would result if statute was invoked, an oral
agreement will be allowed
3. Hickey v. Green-Where the statute of frauds has not otherwise been
satisfied but an oral agreement is admitted by the party attempting to
invoke the statute of frauds, and where the promisee has acted in
reasonable reliance on the promise before the repudiation, and the
remedy of restitution of restitution is inadequate, an injured party may
be entitled to specific performance though there is no showing of
possession, payment of money, or improvements on a parcel of land.
iv) Marketable Title (is an implied condition of sale, buyer may rescind if seller
cannot convey)
(a) A title not subject to such reasonable doubt as would create just apprehension
of its validity in the mind of reasonable, prudent, and intelligent person, and
one which such person, guided by competent legal council, would be willing
to take and pay fair value
(b) Lohmeyer v. Bower-property subject to zoning and covenants that were made
subject to contract, but housing in violation of both; A zoning restriction
existing at time of contract for sale of real estate are not encumbrances or
burdens rendering title unmerchantable. Covenants restricting land, or other
private restrictions, in the absence of a specific clause to the contrary, are
incumbrances that render the title to land unmerchantable. However, property
in violation of either CC&Rs or zoning render title unmarketable
1. Covenants v. Zoning differences=Zoning is not part of Lockean
Bundle; cannot figure out all zoning regulations, title search uncover
covenants
2. Policy of violation=people dont buy litigation; cannot fix because
would be forcing someone to take what they did not bargain for
(c) v. Absolute Title
1. Will never be an absolutely good title without defects, and policy is to
allow land marketable
(d) v. Solely Title Insurance
1. Title remains unmarketable though Title Insurance covers one at time
of buyer, and provides damages, so a buyer may not want to take title
down the road
2. Note-lack of access to land, which should have been discovered during
period between signing and closing, will not make land title
unmarketable (esp. with notice )
v) Duty to Disclose Defects (Exceptions to Caveat Emptor)
(a) Stambovsky v. Ackley (Poltrygeist case)-An exception to caveat emptor will
apply, and recission may be allowed on the basses of nondisclosure, where a
condition created by the seller materially impair the value of a contract and
such is peculiarly within the knowledge of the seller or it is unlikely a prudent
purchaser exercising due care with respect to the subject transaction would
discover such condition.
(b) Johnnson v. Davis-Where the seller of a home knows of facts materially
affecting the value of the property which are not readily observable and are
not known to the buyer, the seller is under a duty to disclose them to the
buyer, regardless if the property is new or used.
1. Note-What is a material conditions? Stambovsky=created condition
presumed to be material
(c) Note-as is does not affect sellers obligation to disclose material info to
buyer which he may not be aware of-because cannot inspect material latent
defects upon opportunity to inspect)
(d) General Trend-Do away with caveat emptor and set for exactly what needs to
be disclosed because of materiality (Brokers behind these in order to put
burden to disclose on seller)
vi) Implied Warranty of Quality
(a) Only becomes a cause of action after closing take place and plaintiff accepts
deed; usually only implied if merchant in trade-ie-builder, subdivider,
commercial vender; Split in circuits if applies to commercial buildings
(b) Lempke v. Dagenais-(Q is if subsequent purchaser may sue builder for breach
of implied warranty of workmanlike quality, when no privity existed with
them) One need not be in privity of contract with a D in a case of a breach of
the implied warranty of quality in order to recover for economic loss. There
are limitations, however, including that: 1) Defects must be latent, because if
they are not they should have been found on inspection; 2) life of action is
limited to a reasonable time to give certainty to builder; 3) P must prove that
defect was caused by Ds workmanship, and D may show defects were a
result of wear and tear or that previous owner made substantial change
1. Hybrid of Contract and Torts-no privity needed and can recover for
economic loss
i. Policy-Protect innocent buyers not in privity, changed society
where people not jacks of all trades, builder should not be
relieved because of sale, if not latent, not discoverable with due
effort, certain defects take time to manifest themselves; no
reason to separate economic loss from personal injury, one who
is diligent in finding hazard should be no different than those
that do not
(c) Uniform Land Transaction Act (not widely adopted)-two implied warranties
against one in business of selling real estate-1)warranty of suitability for new
and used buildings; 2) warranty of quality (applies only to new construction,
and braoder than first in that defect may not be so serious as to make property
unsuitable for its intended purpose and still be breached
1. No general disclaimer effective with respect to buyer of home where
they intend to live (only specific disclaimers if part of basis of bargain)
2. Warranty of Quality runs with land to subsequent purchasers, with 6 yr
statute of lims which begins to run when first buyer to whom warranty
is first made enters possession (regardless sof knowledge of breach
vii) Remedies for Breach of Sales Contract
(a) Damages
1. Jones v. Lee (Buyer backed out of purchase, signed, tender earnest
money, backed out, rejected offer to void contract for earnest money,
sold for loss of 70K) Where an executory real estate contract is breach
by a buyer, damages are measured is the difference between purchase
price and market value of the property at the time of the breach.
Special damages may be awarded if damages are natural and probable
consequences of the breach and the breaching party had reason to
know they may be incurred at time of formation. Malicious,
fraudulent, oppressive, or recless conduct that shows wanton disregard
of other partys rights may support punitive damages (cavalier attitude
toward breach seen as outrageous)
(b) Retention
1. Kutzin v. Pirnie-(should seller be able to retain deposit when buyer
breaches and no liquidated damages clause, or only actual damages)
Where the vendee makes a deposit on real estate, then backs out, the
vendor may keep the deposit, regardless of actual damages suffered by
the seller or whether there is a forfeiture clause in the contract
(Majority Rule seems to be this, as long as less than 10% or less of
sale price; Generally, if a liquidated damages clause in contract, it
must be reasonable ie-<10%)
i. Policy-may be hard to determine actual damages; down
payments limited to 10% usually, so is a fair risk)
ii. NJ Rule-may only retain actual damages-easy in this case
because jury figured these out already
iii. Why-encourage efficient breach-so unlike Jones, not treating
promise as huge moral obligation
(c) Specific Performance
1. Not disfavored in land contract because of unique nature of land;
Condo/Track home=split in circuits if unique enough
2. Some case-SP denied to seller, because buyers are fungible
viii) The Deed
(a) Turned over to buyer after closing; must be recorded with county recorder and
include encumbrances, property interest, HOA, covenants, easements-so they
can be found; includes that has been consideration, will not specify amount;
description of parcel; Formalistic seal requirement
(b) Types (3)
1. General Warranty Deed-warrants title against all defects in title,
whether they arose before or after grantor took title
2. Special Warranty Deed-contains warranties only against the grantors
own acts but not the acts of others; Warrants against AP most of the
time-violation that seller caused condition by failing to assert title
against APer
3. Quietclaim Deed-no warranties of any kind, only conveys whatever
title grantor has, and if grantee of quitclaim deed takes nothing by
deed the grantee cannot sue grantor
(c) Forgery=void, and grantor prevails over all persons, even subsequent bona
fide purchasers who did not know of forgery
(d) Fraud-most courts say deed procured by fraud is voidable by grantor in action
against grantee, but not subsequent BFP from grantee who is unaware of fraud
(e) and General Warranty Covenants
1. Present Covenants (breached at time of conveyance, and S of L begins
to run at date of delivery)
i. Covenant of Seisen=Grantor warrants he owns estate and
purports to convey
ii. Covenant of Right to Convey=Grantor warrants he has right to
convey property
iii. Covenant against Encumbrances=Grantor warrants no
encumbrances on property (ie-mortgages, liens, easements,
covenants)
2. Future Covenants (Breached if grantee or his successors evicted from
property, buys up paramount claim, or otherwise damages-S of L
begins to run at time of covenant breach)
i. Covenant of General Warranty=Grantor warrants he will
defend against lawful claims and compensate therefore (not
liable for legal fees incurred by grantee in successfully
defending title, only where grantee loses to superior legal
claim)
ii. Covenant of Quiet Enjoyment=Grantor warrants that grantee
will not be disturbed in possession and enjoyment of property
by assertion of superior title
iii. Covenant of Further Assurance=Grantor promises he will
execute any other doc required to perfect title conveyed
3. Brown v. Lober-(bought with General Warranty; neither party knew
previous owner reserved 2/3 mineral rights, neither searched record,
by the time realized this, S of L on covenant of right to convey ran)
The covenant of quiet enjoyment will not be breached until one with
lawful title undertakes acts of disturbance that may amount to a
constructive eviction.
i. No title search=not interested in the coal; No title
insurance=did not exist at the time; Bank did title search but
only interested in financing criteria, and no responsibility to
convey this=shows that with title system, warranties, mistakes
can happen, so shows that title insurance is important=would
have reported the defect or been liable for it
4. Frimberger v. Anzellotti-(Warranty against Encumbrances)-
Encumbrances are either: 1) Pecuniary charges against premises
(morgages, judgment, leins); 2) estate or interest in property less than
the fee (life estate); 3) easements or servitudes on the land (restrictive
covenants); the encumbrance must exist at the time of conveyance for
this warranty to be breached. Deed free of encumbrances=marketable
title that can be sold at fair price to reasonable purchaser or matgager.
Encumbrances that will breach the covenant against encumbrance do
not include latent conditions on property that are in violation of a
statute or government restriction.
i. But Bianchi v. Lorenz-Septic System did not comply with
building code at time of conveyance, on suing for breach of
warranty against encumbrances, court said that any substantial
violation of municipal ordinance is an encumbrance in
violvation of deed if can determine that property was in
violation at time of conveyance
(f) and Delivery
1. Delivery=no more than an act that evinces an intent to be immediately
bound by transfer (handing over, grantors declaration, express or
implied, that he is bound by his deed
2. Legal Delivery is what counts (can be physical delivery, but no legal,
and vice versa)
3. Legal Delivery
i. Grantor hands deed to grantee upon receipt of purchase
price=intention to make immediate transfer of title
ii. Grantor puts deed in harnds of third party who hands over deed
upon closing transaction=intends to transfer when all
conditions are met (cannot be revocable for it to be a valid
delivery) (Note-this relieves the need for a will, by giving it to
agent who dels deed to grantee, title relates back to date grantor
handed deed to agent
4. Is a Physical Delivery a Legal Delivery?
i. Sweeney v. Sweeney-(M deed prop to J, J recorded, then deeded
prop to M, did not record-last step was to protect himself,
continued to use as life estate) Physical possession of properly
executed deed is not conclusive proof that it was legally
delivered, because it must be made with an intent to deliver. A
conditional delivery can only be made by giving deed to a third
person to be kept by him until the happening of some event, at
which time it is to be handed over to the grantee.
ii. Court-only expression nmade at time of tranx was Ms wish to
be protected, and the only way for this to happen is if was a
delivery to him (intent argument rejected)
iii. Condition-oral conditions on delivery are only valid if given to
third party (placing common law over intent)
iv. Policy-discouraging fabrication of evidence; if deliver to third
party for later delivery is implied will be some instructions, so
oral conditions allowed in such a case
v. Policy-Safety of Real Estate Title-want to make sure records
can be searched and property not subject to untraceable oral
conditions (note third party does not record deeds)
5. Delivery without Physical Delivery
i. Rosengrant v. Rosentgrant-Where a deed is delivered and
grantor reserves right of retrieval, attaches condition that will
only become operative at time of death of grantor, and
continues to use the property as if no transfer occurred, no legal
delivery has occurred.
ii. Revocable Deed is not valid
iii. Note-clear that intent was that be transferred to Jay, only way
this could have occurred is if intended that the deed be non-
revocable
(g) Revocable Trust (valid)
1. Much like wills, but no probate; owner signs declaration of trust
providing they hold it in turst, retain right of possession, rents, profits
for joint lives and survivors, and on death title passess to assignee
ix) The Mortgage
(a) Loan secured by piece of property which can be foreclosed on in case of
default
(b) Loan to Value=usually 80% of value of property
(c) Constitutes an encumbrance on property, so must be recorded in same way to
put on notice potential buyers (record notice)-remains alienable-Property
either subject to mortgage (sellers responsibility to pay it off); or buyer will
assume the mortgage (with bank requiring original mortgagor continue to be
responsible)
(d) Foreclosure (Mortgage=security; Note=Legally Binding Contract)
1. Common Law-Bank held deed; in case of default-foreclose for full
value, including equity
2. Modern:
i. But: Equity of Redemption-Value of the property above the
loan, in cases of foreclosure, can be recovered by the
mortgagor
ii. Bank must give time to buyer to make payments before
foreclosure
3. Lien States-Lender gives buyer mortgage, buyer retains title, but
lender has a lien
4. Title States (CA)-Bank gets deed, but buyer still retains equity in case
of foreclosure
5. Deficiency Judgments-First mortgagee gets full amount, then seeks
deficiency judgment to get shortfall (Anti-Deficiency Statutes enacted
by Leg. to combat)
6. Murphy v. Fin. Dev. Corp.-(foreclosure sale, sunny day, only lender,
attorney, at sale, bid by lenders agent, later that day sold for 38K with
profits to the bank)-A lender has a fiduciary duty to act in good faith
and exercise due diligence when conducting a foreclosure sale,
meaning that they must consider both their own and the borrowers
interests.
i. Inadequacy of sale price alone will not show breach of duty,
but must be accompanied by something more (ie-only agent
showing for sale, quick turnaround, windfall, loss of equity, as
well as inadequate price, and inadequacy of legal notice)
ii. Policy-keeps in tack Equity of Redemption to require this
(e) Installment Land Contracts
1. Take loan from seller, who takes on risk of foreclosure, so contract
usually provides buyer foreit land and payments on default
2. Bean v. Walker-A vendee in an installment land contract occupies the
same position as a mortgagor at common law; both have equitable title
only, while another has legal title; There is no reason why the vendee
in such a situation should be treated differently than mortgagor at
common law=no summary dispossession of equitable ownership-
equity of redemption applies
(f) Recording
1. Grantee/Grantor Indexes-not perfect
2. Private system better, because every govt entity records differently
3. Purpose of recording=not for such to be valid (deed valid on delivery), is to
put third party on notice of your interest, title (record notice)
(a) Three types
1. Race Statute (2 States)-first to record wins
2. Notice System-Subsequent purchaser who, without notice of prior,
unrecorded deed, wins against the holder of unrecorded deed even if
he has not himself recorded
(b) Policy=protecte subsequent purchasers with no notice, but not htose with
record or constructive notice
1. Race Notice (Cali)-Same as Notice, but subsequent purchaser also
must record first
(c) If A wins the race it is over, but if B wins the race, A wins unless B had no
notice
1. Policy-protect prior purchaser