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ACQUISITION OF PROPERTY Interaction of law and policy: 1) Wild Animals and the Like: Requirements a) Physical Contact/Dominion Control (Post) b) Intent c) Legitimate Expectations A. Physical Contact/Dominion a) Rule of Capture (Post) To have possession over a wild animal you must have the animal in your hands Capture must take away animals liberty and make escape impossible Pursuit not vest property rights. Need pursuit and wounding animal and continuing to pursue after wounding animal o Exception: Capture takes a long time due to the nature of the thing (Whaling) (Popov) Mortally wounding does not vest property rights b) Escape of animals after capture Res Nullus: o When an animal escapes (regains natural liberty) free game for anyone Exception: If an animal is not in its original habitat, gives doubt to whether it is free or owned by someone else (courts reluctant to apply res nullus) Animus Revertendi o A domesticated animal usual habit of return c) Constructive Posession: Possession in theory, not actual physical possession Qualifies as possession o Ratione Stoli Treating something as though it were something else: E.g. possession of land entitles someone to possess of the animals on the land The rationale is that the landowner already had possession of the animal by virtue of possessing the land d) Policy reasons as to why physical contact is required Economics o Encourage placing resources under control in an attempt to increase social welfare, common good. Provides Certainty o Clear rule for administration of Justice Preserve peace and order Prevent over litigation e) Abandonment: The intentional release of possession over property ??? Look into more f) Pre-Possessory Interest (Popov) An actor undertakes significant but incomplete steps to achieve possession of a piece of abandoned property and the effort is interrupted by unlawful acts of others, the actor has a legally cognizable pre-possessory interest in the property g) Equitable Division (Popov) Provides an equitable way to resolve competing claims which are equally strong (gives a portion of the item in dispute to each party)

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B. Intent

Must intent to take possession of the object/animal C. Legitimate Expectation Would a reasonable person believe the object/animal is not in the possession of another 2) Adverse Possession and Prescription : The process by which title to another's real property is acquired without compensation, by holding the property in a manner that conflicts with the true owner's rights for a specified period 6 Elements a) Actual and exclusive possession The adverse possessor must exert control over the property such as an owner would o Court wants to transfer the property to someone who rightfully and effectively controls the land Possessor must have taken actual possession of all or part of land claimed and held it to the exclusion of possession by others b) Adverse or hostile possession Possession in opposition to the owners rights (occupation wrongful to the owner) c) Claim of right: Belief and action requirement of adverse possessor, 3 Standards: Objective Standard: Some states only require possessor must be act in gas an owner of the property rather than a casual trespasser might act. Good faith standard: Other states require either a good faith (but mistaken) belief that the possessor owns the property. Bad faith or Aggressive Trespasser Standard: They require that the possessor intentionally act to acquire property he or she does not own. d) Open and Notorious Actions that would give the average owner notice e) Continuous True owner standard: how would average owner use land (seasonal use may be sufficient so long as use is similar that of ordinary property owner) f) For the statutory period Varies by State Tacking Adverse passion is often justified on the ground that it penalizes the owner who sleeps on his rights and rewards those who make productive use of the land It stimulates the economy Encourages ownership responsibility Income redistribution A. Ejectment (Ewing) a) A property owners attempt to reclaim property from an unlawful possessor of the land or trespasser b) Recording Acts: Buyer registers deed with county office, supporting evidence Action to quiet title: A person interested in determining who or what owns property brings all potential people with interests in the property and they all submit evidence; judge divides up interests on property Prescription: The acquisition of title to a thing Easement: An interest in land owned by another person, consisting in the right to use or control the land, or an area above or below it, for a speicifc limited purpose

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Prescriptive Easement: An easement created from an open, adverse, and continuous use over a statutory period

Color of Title: Nome 2000 v. Fagerstrom Blacks definition: A written instrument or other evidence that appears to establish title, but does not Color of title means a claim that appears valid on its face but is actually not a title to the property o Normal adverse possession requires statutory period If entered through color of title you must show all the adverse possession requirements but can get a shorter statutory period or statute of limitation (because its an innocent mistake made by adverse possessor)

OWNERSHIP INTERESTS IN PROPERTY 1) Defining Present Estates and Future Estates a. See Estates and Futures Primer Attachment 2) Defeasible Fees: When the rights of ownership in real estate are dependent on the occurrence or non-occurrence of a certain event, it is known as a defeasible fee estate A. Station Associates v. Dare County: a) Figuring out what the language meant in the deed (conveyed land w/agreement it would be used as lifeboat station) Methods of interpreting grantors intent o Express language of content from deed. Narrowly (Hammond) o Language and support from other circumstances to help determine what language means. Broad (Nelson) o Extrinsic evidence to clear up ambiguities but parole evidence isnt allowed all the time Extrinsic evidence should not vary the meaning of the document o Reasons for differing interpretation Anti-forfeiture Contract interpretation Courts favor conditions subsequent versus determinable because FCSC gives the court the ability to decide whether or not the condition was breached o Future interest holder must assert right to end fee simple b) Substantial compliance will avoid a breach of a condition subsequent Forfeiture by nature a drastic remedy because in most cases it is widely disproportionate to the breach Also restricted use of land for a potentially indefinite duration diminishes lands marketability and development c) Courts try to rule gainst disproportionate forfeiture Severity of forfeiture v. conditions o Pro conditions: D knew the terms, cost D paid to use land land o Anti Conditions: huge punishment v. small crime, want to promote efficient use of land To constitute a breach of a condition subsequent in a deed relating to maintenance or use of land conveyed, there must be such neglect to comply as to indicate an intention to disregard the condition General rule of interpreting a deed is to determine the parties intent at the time of conveyance in light of surrounding circumstances: Station Associates, Inc. v. Dare County The use of express language of reversion or termination is the usual manner in which parties intending to create a fee simple determinable manifest that inte Any words expressive of the grantors intent that the estate shall terminate on the occurrence of the event will be sufficient to create a fee simple determinable

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3) Life Estates and Remainders: Nelson v. Parker Life estates are usually created to provide someone with income or a place to live, or both, during their lifetie, while assuring that on the life tenants death, the property will go to persons selected by the grantor Modern Day analysis to determine whether a deed subject to a life estate validly creates a life estate is to look to intent of parties 4) Waste and Life Estate Tenants: In re Estate of Jackson A. Residuary Beneficiary: a) After the estate has been divided up to those who received specific and general devises, what is left is distributed to people in the residuary clause B. Waste Rule a) Life tenant is obligated to preserve the land and structures in a reasonable state of repair b) Life tenant is under no duty to make extraordinary repairs, or to rebuild structures damaged or destroyed Life tenant needs to make necessary repairs to keep up the property, if repairs on not made, remaindermen would be able to bring action alleging waster C. Two types of Waste a) Involuntary Waste or Permissive Waste: Failure to make repairs or pay the ordinary carrying charges of a property (taxes, mortgage payments etc.) Policy Reasons: o Protect future interest holder o present holder has no incentive to keep it up so necessary to give incentive to repair o want to protect original grantors intentions & purpose o cheaper to repair now by life T (fixing 1 shingle now is cheaper than fixing whole roof down road) b) Voluntary Waste: Results from intentional acts of the life tenant that cause substantial change to the value of property o Remaindermen or reversioners entitled to receive the property in the same state that it was then the life tenant received it D. Life Estate Per Autre Vie: a) A life estate is full alienable unless it is subject to a valid restraint on alienation. The life tenant, however, cannot convey more than he/she has (an estate that ends when he/she dies) If the person does transfer the estate then the recipient has an estate per autre vie (estate for the life of another) This type of estate is undesirable because life tenant cannot sell property unless the remaindermen or reversioners are willing to join in the conveyance, otherwise not much life tenant can do If the life tenant increases the value of the property by making permanent changes, activity is called ameliorative or meliorating waste Substantial authority that the life tenant is entitled to make changes that are necessary to permit a reasonable use of the property so long as the value of the property is not diminished Future interest holder can enjoin life tenant as a remedy, money damages not available Alienability of life estates: A life estate is fully alienable unless subject to a valid retraint on alienation Life tenant cannot convey more than she has (an estate that ends when she dies) o If estate is transferred, recipient has an estate pour autre view o Can value a life estate by estimating remaining life expectancy of life tenant and estimating market interest rate that will prevail over the rest of tenants lie expectancy

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LANDLORD-TENANT OBLIGATIONS 1) Landlords Obligations and Tenant Remedies: A. Holdover tenant: Tenant continuing in possession of premises after expiration of lease (regarded as a T at sufferance). Remains on after period of tenancy. a) Landlord has two options when a holdover tenant exists: Treat the holdover as trespasser Bring ejectment action to evict b) If the tenant holds for an additional term specified in lease: If lease was for more than a year, new term is for a year Anything less than a year the holdover is held to the same term as the original lease Most states require L to put T in actual possession of premises at beginning of leasehold term o If not, L will be in breach if she has not evicted the holdover tenant by beginning of the new term (most states not all) B. Duty to Deliver Possession Tieielbaum Case: T who was supposed to move in, sues L for not kicking holdover Ts (Fergangs) out o Court followed American view which was dominant at the time Burden to negotiate and draft a provision governing the landlords obligation is placed on the tenant L not obligated to give T2 (new T) actual physical possession on day 1 its T1s responsibility & T2 still must pay rent even if he cant move in to get around this rule, can put clause in lease that L must deliver actual physical possession o Justification for American Rule Property teory based on conveyance of land The tenant had the present interest and right to the land so he had control. Why should the Landlord, who only has a future interest, be responsible to deal with a holdover tenant , who remains unlawfully o English Rule Burden to negotiate and draft a provision governing the landlords obligation is placed on the landlord Landlord has to put the tenant in physical possession o Justification for English Rule Contract based expectation theory People pay rent to be able to take possession and use property (not sleep on a friends couch and pay lawyers fees) C. Duty to Protect the Tenants Quiet Enjoyment: (Blackett v. Olanoff) a) Covenant of quiet enjoyment Implied promise from landlord to tenant that tenant shall have quiet and peaceful possession of the premises for the term of the lease o When L breaches covenant of QE, tenant may vacate the premises and treat breach as constructive eviction; or Dependent covenant theory o Tenant stay in leased unit and sue for damages (difference in money) Independent covenant theory o Constructive eviction relieves T of obligation to pay rent E.g of constructive eviction: failure to supply water or heat if L is required by contract or failing to control insects or rodents in hallways or other apartments. b) New York Rule: Landlord is responsible if one tenant is disturbing another tenant o General View landlord is not responsible

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Pros of New York View: o Expectations: Tenant pays landlord and expects to enjoy what you pay him for, its his duty to make sure tenant enjoys o More efficient because landlord has power of tenants Can threaten not to renew lease Able to police building, familiar with these kinds of situations o Landlord has power to evict noisy tenant by putting an expresws covenant in lease to make tenant be quiet and not disturb neighbors Cons of New York View: o If landlords are responsible it will increase those costs and those costs will be spread to tenants by increased rent o Landlords will discriminate amongst renters Reluctance to lease to college students, young adults o Drive out lower income renters because landlords will appease most influential renters to avoid the headache c) Constructive eviction: Affirmative Defense Look to Leasehold agreement Failure or interference on the landlords party with the tenants intended enjoyment of the premises, in such a way that the tent is deprived of the enjoyment of those premises o Actions of the landlord have compelled the tenant to leave, just as if/when the landlord actually evicts the tenant o The landlords conduct, not his subjective intention is controlling (Blackett) Necessary elements: o Intentional (actual or inferred) acts of the landlord that breach a duty owed to the tenant Acts must be by landlord or person representing him (not neighbors or strangers) o Acts are the cause of substantial interference with the tenants enjoyment of the premises, or render it unfit for the purpose which it was leased Some degree of substance and permanence of character o Tenants vacated premises within a reasonable time after the landlords actions d) Independent Covenant: (Wesson v. Leone) Traditional view (still applicable and used today) o If one-side breaches, the other side has to continue to perform (continue to pay rent) because the conveyance was just for the land (the main thing) everything else was just extra e) Dependent Covenant (Wesson v. Leone) Wesson Court adopted dependent covenant theory for commercial leases If one party makes a material breach there is no obligation to continue to perform (pay rent) o Dominant view of contract law Breach of implied covenant of quiet enjoyment is a dependent covenant and only exception to independent covenants in Landlord/tenant relationship D. Warranty of Habitability (Conditions of the premises) Javins a) Implied warrant of habitability requires: The rental premises be offered and maintained in a physical condition that provides safe, decent, and habitable housing for tenants o Centered around physical condition of premises o Consistent with idea that landlords should comply with the standards found in building and housing codes enacted by local governments o NY rule is fit for human habitation Pre javins no duty to repair. Post javins look to if non compliance is a breach of elements of habitability Both a warranty and a covenant

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Warranty that the residential premises are safe clear and fit for habitation Covenant that the landlord will maintain and repair the premises so that they remain in the same condition throughout the term of the lease (T no longer has duty to repair permissive waste)

Examples of breaches of habitability: heat, hot water, plumbing, safe kitchen appliances, lead paint Examples that are not breaches of warranty: broken window blinds, cracks in plaster, need fresh paint b) Three Elements to a successful warranty of habitability claim: Landlord must have notice of the defective condition The defect must be substantial o Considering its violation of housing code, effect on thenants health and safety, length o time it exists, and seriousness Landlord must have been given reasonable time to repair the defect and not done so c) Waiver of warrant of habitability: If a tenant signs a lease to a place that is inhabitable, and they are aware, signing lease is waiving warrant of habitability d) Tenant Remedies: Withhold rent until necessary repairs are made o When landlord breaches, court must determine what portion of tenants obligation to pay rent was suspended by that breach (Javins) Sue landlord to collect damages o Difference money Fair rental value of premises as warranted (in good condition) less fair value in an unrepaired condition Difference between contract rent and fair value of apt. in an unrepaired condition Repair condition himself and deduct reasonable cost of repair from next rent payment e) Landlord Tort liability (Peterson) Landlord will not be held strictly liable under general tort principles (reasonable person under all the circumstances) o Knew or should have known o Likelihood of occurring o Cost benefit analysis Landlord is not strict liable like the seller of used goods isnt strictly liable Tenant injured by a defect in the premises, may bring a negligence action if the landlord breached its duty to exercise reasonable care o i.e. negligent performance of a repair (landlord liable) Common Law Rule: o Landlord not liable for injuries suffered by tenant or guests on property Exceptions: Areas under landlord control (common areas) Latent defects Negligent performance or repair Public use (doctors office) 2) Tenants Duties and Landlords Remedies A. Duty to Preserve the Premises: Sigsbee (tenant made improvements to apt, landlord sues claiming waste) a) Did the leasee inflict damage which injures the reversion? Did the leasee materially and permanently change the nature and character of the building Would it be impossible to restore the same premises substantially at the end of the term

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Were the damages only the result of the tenants right to the use and enjoyment of the premises for the express purpose of leasing o Tenant may occupy and use the demised premises any lawful way not materially different from the way premises was intended to be used b) De Minimis Waste: The Small stuff o Burden on landlord to put conditions in the lease to make the tenant pay for any damages c) Ameliorating Waste: Improvements to a premise that substantially alter it by enhancing, not decreasing value B. Duty to Operate (Piggly Wiggly) a) Express Covenant of Continuous Operation Negotiated by Parties and placed in the lease to expressly deny or allow ability to continually operate b) Implied Covenant of Continuous Operation When Express clause is ambiguous or non-existent In determining whether an implied covenant of contnous operation exists, courts will consider if: o The lease provides an express right to assign or sublet without consent Free assignability by tenant without consent from landlord weights strongly against continuation requirement o Substantial minimum base rent suggests absence of continuation requirement o Percentage of profit/revenue agreements weight in favor of continuation requirement o The lease contains a use clause i.e the tenant will use the premises o The lease grants the tenant an exclusive right to use in a shopping center o Costs of improvements were made by landlord for this particular tenant o Lease was actively negotiated between parties C. Duty to Pay Rent (Albert Greenfield) a) Common Law Tenant was required to continue to pay rent after a structure was destroyed on property o Common Law notion that interest was in land and not in the structures on the land b) Modern Law Contract based principles dealing with impossibility when property was destroyed on land o When a portion of a building is leased and the whole building is destroyed, tenant is relieved of obligation to pay rent o Impossibility: A party may be released from liability for breach of contract for failing to perform an obligation that is rendered impossible by uncontrollable circumstances Includes impracticability because of extreme and unreasonable difficulty, expense, injury, or los involved o Excuses parties from further performance of obligations under lease agreements D. Recovery of Possession by Landlord (self-help) Talbot v. Jordan a) Issue is whether peaceful self help is okay or is summary eviction proceeding the only option for landlord Was use of key forcible entry b) Lessor right of re-entry is not a defense to Forcible Entry Right of Re-entry o If a condition in the lease is breached, landlord receives a right to possession o Lease is terminated Forcible Entry and Forcible Detainer o Landlord must go to court to exercise right of entry and detainer o Landlord must give tenant notice of breach and eviction Policy: Courts do not want to through tenants out on the street o Detainer: Holding real property by one whose original entry was legal Can be set up through use of a lien

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A lein Is made operative through equitable action in court, not by self help Forcible Detainer By force or threats of violence, one unlawfully holds and keps the possession of any real property, whether the same was acquired peaceable or otherwise Forcible Entry By Statute defined as entry onto property against the consent of the occupant

Policy: o Courts do not want Landlords taking matters into their own hands (possibility of violence) o Do not want the landlord forcibly removing tenants because tenants require some time of shelter Summary eviction statutes: When there was a breach of a lease this gave landlords a quick remedy to get the tenants off the property (expedited process to get property back) No force statute: Tenant protection aspect Give tenant civil remedy if tenant was forcibly ousted o Time and money needed for landlord to go to court is justified because the land lord is best quipped to deal with these situations He is a professional and can factor costs into rents o Encourages resolution of disputes c) Periodic Tenancy For a set period, commonly month to month lease renews automatically at the end of each period for another period and keeps automatically renewing Either the landlord or the tenant can end the lease by giving notice equal to the length of the period o 6 month lease requires 6 month notice of termination of lease Landlord can terminate a tenant for any reason or no reason but cant be an impermissible reason d) Tenancy at will Relationship between landlord and tenant endures only as long as the parties agree it shall o Continuous only by mutual agreement o Either party has right to terminate lease at will Tenant still has right to exclusive possession during tenancy Tenancy not inheritable, not transferable or assignable e) Retaliatory Eviction: Murphy Commonly used as a defense for eviction holding that tenant cannot be evicted for reporting housing and sanitary code violations o Causation: Eviction must be solely connected to retaliatory acts by landlord and not for other reasons Courts have limited what is considered protected activity Murphy ruled retaliatory eviction can be stated as a sufficient cause of action o Tenant may state an affirmative cause of action for retaliatory eviction if the landlords conduct is in retaliation for the tenants exercise of a right incidental to the tenancy (incidental refers to a right related to the tenancy ) o Residential tenant does not have to continue living on the leased premises to preserve a cause of action for retaliatory eviction o Forces burden of proof on tenant to show intent of landlord was retaliatory E. Landlords Duty to Mitigate (Lefrak) a) Lefrak 1: Landlord has a duty to mitigate The landlord has an obligation to act in good faith to mitigate damages and re-rent propertys b) Lefrak 2: Landlord was under no duty to mitigate Restatement Second:

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Except if the parties to the lease agree otherwise If the tenant abandons the leased property, the landlord is under no duty to attempt to relet the leased property for the balance of the term of the lease to mitigate the tenants liability under the lease, including his liability for rent. But the Landlord may: Accept tenants offer of surrender of lease property (inherent in abandonment) and thereby terminate the lease leaving the tenant liable only for rent accrued before the acceptance and damage caused by the abandonment; or Notify the tenant that he will undertake to re-let the leased property for the tenants account, thereby relieving the tenant of future liabilities Includes liability for future rent, to the extent re-letting on terms that are reasonable Second is a remedy to a situation without friction o If tenant presents a creditworthy substitute tenant, landlord must accept substitute under a reasonable test o Landlord only has no duty to attempt to re-let Covers active mitigation (seeking out a new tenant), o says active mitigation is not required and does not address passive mitigation (showing apt before others or taking new party offered by tenants leaving), says its required if reasonable Policy for Restatement: o Costs money for landlord to re-rent apt o Landlord is not receiving money from tenant due to his breach o Courts want to discourage abandonment because vacant properties lead to vandalism, decrease in property values c) Uniform Residential Landlord and Tenant Act: If the tenant abandons the dwelling the L shall make reasonable efforts to rent it at a fair rental. If L rents the dwelling for a term beginning before the expiration of lease, it terminates as of the date of the new tenancy. If L fails to use reasonable efforts or if the L accepts the abandonment as surrender, rental agreement is deemed terminated on the date L has notice of the abandonment Once a tenant abandons the lease, a landlord has four options: 1) The landlord can treat the lease as continuing, do nothing, and sue the tenant on the covenant to pay rent as the rent falls due 2) The landlord can treat the lease as continuing and re-let the premises for the tenants account, reserving the right to sue the tenant for any unpaid balance of the rent 3) The landlord can accept the surrender of the lease, and re-letting on the landlords own account 4) The landlord can treat the abandonment of the lease as an anticipatory repudiation, suing the tenant for either a) Damages: the difference between the reasonable rental value of the unexpired term and the present value of the future rent; or b) Unpaid future rent : The difference between the contract rent and the amount received from a new tenant, both damages and future unpaid rent being recoverable in one judicial proceeding

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3) Assignments and Subleasing A. Assignments: Kelly v. Tri-Cities a) Assignment is a transfer of the entire leasehold estate b) Assumptions of a Lease: A party must expressly agree to assume conditions of a lease. By expressly agreeing to terms of a lease, places initial tenant (T1) in privity on contract with landlord (L) o To get out of privity of contract, T1 would need landlords express consent

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Privity on contract is never broken between T1 and L. Even if T1 assigns the lease to another tenant or assumes the lease o Based on express language, contract based liability c) Assignment of a Lease Transfer of the entire leasehold estate When someone occupies T1s property and agrees, either express or implied, to pay rent o If on the land a duty to pay rent is implied. T2 owes same amount of rent as T1 because covenant to pay rent runs with the land o Surety: one who is in obligation of debt of another Privity of Estate is created between T2 and L o No express promise to pay rent but merely by taking possession as a tenant and recognizing L as a landlord there is a liability to pay rent even though there is no express promise Landlord-tenant relationship gives rise to obligation to pay rent Based on status of parties o Privity of Estate can be terminated at anytime as long as T2 moves off the property (minority rule) L can sue either T1 or T2. T1 and T2 can sue each other as well o L cannot collect from both o Privity of contract is a personal liability while privity of estate is a status based liability B. Subleases: Newman a) When T2 subleases from T1, he is privity of estate and privity of contract with T1 b) Assignment defined: Transfer is for the whole balance of the unexpired term For the same premises On the same terms as the original agreement c) Sublease defined: Transfer is for a period shorter than the unexpired term Relates to a physical part of the original lease On materially different terms than the original lease To form a sublease, reversionary interest must be retained by party who is giving away the lease o Reversion Reversion can be retained by having the sub-lease end a day before the actual lease expires o Possibility of reverter o Right of re-entry/condition subsequent was held sufficient in Newman but most jurisdictions would not allow it. (Courts relied heavily on parties intent) Look to intentions of the parties as to what they were trying to form o Circumstances surrounding agreement o Who does T2 pay o Is sublease for a different amount than original Distinguishing between Assignment and Sublease If the original tenant retains an interest in the premises, the transfer from the tenant to the third party is a sublease o If the original tenant transfers the property for the entire remaining period of the lease, the transfer is an assignment Transferring the lease for even one day less than the remaining time of the lease results in a sublease rather than an assignment o Look at the intentions of the parties to see if they intended to create a new L/T relationship between T1 and T2 or did they intend to have T2 step into T1 shoes creating an assignment

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L is going to argue that the transfer is an assignment because an assignment will allow him to recover money from the most people. (If assignment exists privity of contract if express covenenat in initial lease and privity of estate) T1 wants to argue it is a sublease and he has no liability to L because they are in no liability of estate The right of reentry is a reversionary interest sufficient to qualify a transfer as a sublease rather than an assignment (Second restatement of property) C. Power to Assign or Sublet: Julian v. Christopher Landlords typically put in an express prohibition of some kind of restriction on the tenants right to sublet or assign in the lease so long as the restriction is reasonable Free alienability: Want property to move in marketplace and put to best use a) Express Clause: The parties may expressly agree to a provision that clearly states that the landlord retains the absolute rights to alienate the property at his discretion. o If the parties intent to preclude any transfer by assignment or sublease, they may do so by a freely negotiated provision in the lease o A reasonable standard can be expressly stated in the lease b) Silent Clause: If the lease contains a silent consent clause providing that the tenant must obtain the landlords consent in order to assign or sublease, such consent may not be unreasonably withheld o Silent clause refers to a statement that retains the right to alienate the property with the landlord but does not expressly state that the landlord can do so at his own subjective discretion for whatever reason Example of reasonable withholding financial irresponsibility or instability of transferee, public uproar (religious institution) Example of unreasonable: reasons for withholding consent have nothing to do with the intended transferee or the transferees use of the property c) Public Policy: Public policy against restraints on alienation o Restrains on alienation are permitted in leases, but are looked upon with disfavor and strictly construed If a clause in a lease is susceptible to two interpretations, public policy favors the interpretation lease restrictive of the right to alienate freely o Interpreting a silent consent clause so that it only prohibits subleases or assignments when a landlords refusal to consent is reasonable, would be the interpretation imposing the lease restrain on alienation and most in accord with policy Public policy implies a covenant of good faith and fair dealing o Implied in every contract When a lease gives landlord right to exercise discretion, the discretion should be exercised in good faith and fair dealing If lease doesnt express state standard for withholding consent, implied covenant of good faith and fair dealing should imply reasonable standard 4) Concurrent Estates and Marital Property A. Definitions a) Right of Survivorship: A retained right to receive the entire property upon the death of a person who had an interest in the property as a whole b) Fully Alienable: A person has the ability to transfer his estate at any time, life or after death c) Pass by will: d) Pass by intestate e) Transfer rights independently: Allows a tenant to unilaterally transfer their rights f) 4 Unities:

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Joint Tenancy Right of Survivorship Fully alienable Pass by will Pass by intestate Transfer rights Independently Requires 4 Unities Yes No No No Yes Yes

Tenancy in Common No Yes Yes Yes Yes Only unity of Property

Tenancy by the Entirety Yes No Both must Join No No -> Both Yes + Marriage

B. Characteristics of Concurrent Estates and Marital Property Multiple people owning blackare at the same time: Law of current ownership, Law of Co-tenancies 3 types of concurrent estates: 1) Joint Tenancy (JT) 2) Tenancy in Common (TIC): No survivorship 3) Tenancy by the entirety (TIE) Joint Tenancy O conveys to A and B and their heirs (fee simple absolute) as joint tenants Attributes of joint tenant Each joint tenant owns an undivided share in the whole Survivorship: When a joint tenant dies, the living joint tenant is left as sole owner of property o From the beginning, each own an undivided share in the whole subject to the others undivided share in the whole so that when one dies, the other is left owning the whole solo o Important wealth transfer vehicle , estate vehicle. Unilateral conveyance by one party to a JT destroys JT and creates TIC which does not include a right of survivorship In order to have a valid joint tenancy must meet 4 common law unities: 1) Unity of Time: a. Interests of A and B have to have been created at the same time 2) Unity of Possession a. Each joint tenant owns an undivided right in the entire property, b. each joint tenant has a right to possess the entire property subject to the others right to possess the property c. Only unity required to be present in a tenancy in common 3) Unity of Title a. A and B receive their interest in the same instrument (deed, conveyance, etc) 4) Unity in Interest: a. Both A and B have to have the same amount of interest in the property

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Severance of Joint Tenancy: Either party can unilaterally end the joint tenancy by conveying his interest to a third party If A and B are joint tenants and B conveys his interests to x. A and X are not joint tenants, they are Tenants in common o Voluntary transfer: o Involuntary Transfer: Creditor attaches the property interests of a party and is sold in an auction to pay for a debt Joint tenancy allows the transfer of property upon death without dealing with a will Inter vivos transfer: Transfer of property that takes place while everyone is alive Testamentary: transfer takes effect at death Tenancy in Common: a) Only unity need to have is possession Each has a right to possession of the whole estate and no tenant has the right to exclusive possession of any part b) No survivorship c) Each has an undivided interest in the whole Doesnt mean each owns half o A could own 1/3 and B could own 2/3 but person that owns less doesnt have less rights to use and occupy the property o Normally will divide up rent and sale proceeds according to their respective interests d) A and B are joint tenants when A dies her share will pass by will or by statutory intestate laws to As heirs e) TIC is assignable (transferable), devisable, inheritable. f) Co-tenant can mortgage his interest to secure a loan or can sell his interest, but cannot sell his co-tenants interest Either party can request a partition from the court to divide the property a) Partition by sale Sell land to a third party and divide the proceeds b) Partition by kind Divide the land Tenancy by the entirety Requires the four unities plus marriage There can be no unilateral conveyance o The right of survivorship can ot be destroyed by a unilateral conveyance o Only way property can be conveyed is if A and B join together to convey together o Unlike joint tenancy No unilateral right to partition o Property can only be partitioned by courts after divorce Co-Tenant right to retain profits (Martin v. Martin) a) Rule: A cotenant is not liable to pay rent or to account to other co-tenants respecting the reasonable value of the occupancy, absent an ouster or agreement to pay Ouster is if A kicked B out Accounting is the division of money received by another cotenant b) An ouster must amount to exclusive possession of the entire jointly held property This stems from the requirement that each cotenant owns an interest in the property as a whole For rent to be owed a cotenant must: o Assert an exclusive claim to the entire property; and

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c) d) e)

f)

Give notice to this effect or his actions must be so open an notorious, positive and assertive, as to place it beyond a reasonable doubt that he is claiming the entire interest If a cotenant voluntarily leaves he has no right to compensation for his interest If B outs A, A can bring suit for an ejectment to get back on the land No duty on party to account for reasonable use and occupations of the property or for profits The law encourages people to be productive on their land. Majority encourages people to work out their problems and take care of land Exception: Statute of Anne: o If there are rents (payments from third parties) A must account to B and give B, Bs fair share of these rents, even in the absence of an ouster or an agreement. So that if B voluntarily leaves the property and A rents it out, A has to give B his fair share (less maintenance and carrying costs) Reason for Statute of Ann: Rent is considered easy money. It is distinguished from profits earned by cultivating land. In most jurisdictions a co-tenant in possession has the right to retain profits gained by her use of the property Co tenant in possession does not have to share such profits with co-tenants out of possession nor reimburse them for the rental value of her use of the land unless there has been an outster or an agreement to the contrary o Court says son occurping the lot is not an ouster because regardless of portion of land each tenant owns each has a right to the whole o If you only oust them from a portion its not an ouster, you have to oust the cotenant from the entire property to trigger ouster rights

Partition in Kind vs. Partition in Sale (Delfino) Plaintiffs wanted partition by sale. Defendants wanted partition by kind. Supreme court ruled for Partition by kind a) Courts favor a partition in kind (physical partition) over a partition by sale because: Sale of ones property without his consent is an extreme exercise of power Factors like terrain, large number of co-tenants, and size of tract may convince a judge that partition in sale is better Do not want to kick people off land they have already improved and settled on (sale would force people to leave) Partition in kind offers the lease upset to the original co-tenancy and does not force people to sell who do not want to. If partition in kind would violate zoning, partition by sale would be ordered b) Partition vs. Severance: Parties remain co-owners after a severance; whereas there is no co-ownership after a partition Joint Tenancy: (Downing) a) Creation of a JT: Courts will look to The language of the conveyance and the circumstances at the time of its creation o If language expressly states parties intent was to create a JT, as joint tenants do not need to look at circumstances o If languages doesnt expressly state intent for a joint tenancy, look to 4 unities, presence of a straw man Presence of a straw man is indicative of a JT If land is or is not included in a will o If land is not included in a will because the cotenants thought JT covered it, strong evidence of a JT b) Temporary division of property (a lease) held by JT without an intention to partition will not destroy the unity of possession and amount to severance of the JT Look to circumstances to see if party is present on land, if they are an involved member o Legal Issue in case is whether mortgage on property created a severance of JT

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No, a mortgage by a single JT destroys the JT Compromises title and interest unities Where all the JT join together none of the unities are destroyed c) Common law presumption was in favor of JT Modern presumption is in favor of tenancy in common unless there is clear language creating JT o When in doubt, presume its a TIC not a JT. If intent is clear, JT allowed. Title vs. Lien Theory of a Mortgage a) Title Theory: Mortgagor coneys a Fee Simple Condition Subsequent (FSD can be used as well) to mortgagee Borrower giving title of property to lender in exchange for loan. Courts said even if Lender has title, Borrower has right to possession and can enjoy the property until time of default. o Title theory destroys a JT because when one JT mortgages their interests, it acts as a severance. If both mortgage interest, there is no severance (both have same diluted interest) c) Lien Theory: A lien is not a possessory right so the JT is not severed Everyone recognizes what Borrower is granting to lender is a lien (claim to property) to be executed upon incase of default. Security instrument if borrower doesnt pay d) Important Distinctions: Under a lien theory Mortgage does not sever JT o Creation of the mortgage under lien has nothing to do with transfer of the estate o When JT gets mortgage, whether it is one or both of them, its not the transfer of possession, it has nothing to do at all with whether or not there is a severance e) Hypo: A and B have T and B gives to a mortgagee (lender) If B dies the mortgage is worthless since the deceased ebtor no longer oowns an interest in the property o The creditors rights depend on the debtors interest o Some states by statute have that the property continues to be subject to the mortgage If A dies B owns the entire property o This is good for the mortgagee because he will have a much more valuable security interest if B defaults o If B defaults on his mortgage the mortgagee can foreclose on the entire property (when B took out the mortgage he wasnt doing it for half the land he was doing it for his entire undivided interest) Marital Property: Swada Husband in motorcycle accident, not insured and only real assest was property that he shared with wife that they conveyed to son (after accident) with no consideration but continued to live on property a. Legal Issue: Did Endo have an interest that a creditor could grab onto If the answer was no, he could do whatever he wanted with the property so it wouldnt be a fraudulent conveyance to his son by trying to escape creditors o Plaintiff argues this was a fraudulent conveyance and they are entitled to property to satisfy judgment o Defendant argues that separate creditors by ether spouse can not reach property held by tenants by the entirety c) Court says The property could not be reached by creditors and thus the conveyance was not fraudulent TIE property may not be reached by separate creditors of either spouse. TIE is generally the family residence and public policy consideration of protecting family unit support this decision (group III) d) Group I position Common Law: o The husband had the exclusive right to convey and enjoy the property, but survivorship of wife was still in tact o If he died first it does to wife by survivorship right but he had an exclusive right to convey/transfer during his life

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Wife always has right to survivorship. Wife had no unilateral severance right or right to partition e) Married Womens Property Act: Purpose was to give married women the same rights to their solely owned property that unmarried women had Prior to this act any property a married women had in her own name the husband had rights over o Now this act says husband has no control over individually uowne dproperty f) Group II States Married Womens act statute is a declaration of public policy so men and women should be treated equally with respect to property they have by tenancy by entirety o Both have same interest, both can voluntarily convey and creditors of both husband and wife can take eithers interest (voluntary and involuntary conveyance) and both have right of survivorship Creditor takes spouses position in property (there is no severance of TIE) o Creditor takes over Ws possessory right. Creditor has right to share possession of property during lifetime, just like JT o If H dies, the survivorship right was the Ws, so creditor gets everything o If W dies first, creditor out because husbands survivorship right not compromised and creditor gets zero Problems with Group II: o Creditor gets right to enjoy property subject to the others right to enjoy property g) Group III Neither husband nor wife can convey unilaterally, lowering husband right to convey unilaterally Creditors can not take any interest on either spouses debt Problems with Group III o Give creditors no incentive to give loans or mortgages o Undue burden on creditors to know credit of people they loan to 5) SERVITUDES A. Easements: Non possessory right in land of another By deed of easement, B would grant an easement over their driveway to let A use it for a specified purpose B retains possession of property including the easement area, but possessory right is subject to a limitation (As right to use) a) Affirmative Easement: Gives someone the right to do something on someone elses property b) Negative Easement: Gives easement owner right to veto something on someone elses property c) Appurtenant: created to benefit the dominant parcel of land, the two pieces of land do not need to be adjacent. d) In gross: created in general, not connected to anything in particular. Ex: right to fish on certain land. e) Reservation: When grantor conveys land they reserve a right to do something on the conveyed land f) Grant: When grantor conveys land they grant the right to do something on a piece of land to the owner of the conveyed land. B. Reservations v. Grants a) Old Standard. Reservations required strict necessity o The grantor was reserving a right on the land they were granting to someone else. o Court did not want grantors reserving rights that were not necessary because they would burden the grantees parcel indefinitely Policy: the grantor could have expressly stated the easement in the deed. Grants required reasonable necessity. o Curt was less concerned about grants because the grantor was granting a right for use across his own land.

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Court still required reasonableness because the grantors parcel would be burdened indefinitely and future owners would have to deal with the easement.

b) New standard. Both reservations and grants are required to be reasonably necessary. -> Restatement Court will balance the necessary nature of the access and the burden on the other property. C. Different Ways Easements can be created: a) Express Easements: Reservation Grant b) Implied Easements: By necessity By prior use c) Easements by Prescription D. Policy for existence of easements: a) Court wants an instrument that allows use of others land so that the land is used efficiently b) Do not want the parties to bargain for access bc the owner of the land where the easement would be has a monopoly on access -> bargaining power c) Public Policy: allows the court to cite utilitarian reasons for easement use but brings in the issue of compensation to the burdened owner bc the easement would not have been implied in the contract. d) Contract: the contract approach claims that the easement was implied in the deed and thus no compensation is required but then the intent of the parties must be reconciled instead of just pointing to public policy Implied on the basis of necessity: Morrell A. Creation: Fact based inquiry a) There must have been a common owner and common owner must have conveyed part of the property to another person May be created when a grantor conveys a lot of land from a larger parcel and that conveyed lot is landlocked by the grantors surrounding land and cannot be accessed from a road or highway. May be created when there are simultaneous conveyances by a common grantor, and one of the conveyed lots is landlocked and inaccessible. Both are implied as a matter of law irrespective of the true intent of the common grantor. b) Determination of the existence of an implied easement is done by examining the circumstances existing at the time the landlocked parcel was severed from the parcel with access. The right of way is necessary for the enjoyment of the property. o Landlocked property always meets necessity. Some courts enforce strict necessity (landlocked land) others require necessity for the reasonable enjoyment of the land (modern view is reasonable enjoyment) The necessity must have existed at the time of severance o At the moment of severance when the first piece of land is sold is when you judge if the necessity existed c) Easement ends when no longer necessary. B. Scope a) Scope of an easement is not determined solely in reference to the time of its creation. b) It should be defined with reference to the reasonable enjoyment of the land and all lawful uses to which it may be put. c) Can include not only the right of entry and egress, but also the right to make use of the easement for installation of utilities, essential for most uses to which property may be reasonably put in these times. Necessary to reasonable enjoyment to property. Access includes not only roadways but utilities d) Inquiry to if implied easement exists is made at the time of severance. Scope is determined by reasonableness of its existence

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Use of easement over time will change based on changes in the reasonable needs of the property and thus the scope of the easement will evolve over time Easement cannot place undue burden on servient property

Implied on the basis of prior use: Van Sandt A. Elements of establishment: a) Use must exist on one parcel and then that parcel must be severed. Prior use was there before the severance, so you take the prior use and ripen it into an easement b) The use was in place at a time a parcel was a single parcel of land and before it was divided into two parcels c) The easement must be reasonably necessary without disproportionate effort and expense to the benefited estate. d) The easement must be apparent, continuous and necessary on the date of the severance. Apparent o If it was apparent at the time of purchase we can assume the parties intended for the prior use to continue If it was not apparent, we would not be able to say that when purchasers bought it they knew about it and factored that into the price and assumed use would continue o Courts have interpreted visible or apparent to reach those uses or conditions discoverable by a reasonable inspection (so covers not only roads and driveways but sewer and underground utilities) Continuous o If it wasnt being used all the time, the buyer might not think its so important that there is an expectation and an intention for the use to continue Necessary o Some states have reasonable necessity standard for implied grant and strict necessity standard for implied reservation o Current trend is to subject both the grantor and the grantee to a reasonable necessity standard o Restatement looks at totality of the facts to determine whether the parties would have intended the easement if they had thought of it at the time the property was subdivided B. Restatement: prior use will be implied if at the time of severance the parties had reasonable grounds to expect that the conveyance would not terminate the right to continue the prior use. a) Factors to determine if prior use was implied: The prior use was not merely temporal or casual, and Continuance of the prior use was reasonably necessary to enjoyment of the parcel, estate, or interest previously benefited by the use, and Existence of the prior use was apparent or known to the parties, or The prior use was for underground utilities serving either parcel. C. Notice: According to the restatement an easement by prior use requires both parties to be on notice of its existence. Offers a defense: a) Actual notice: actually knows of prior deed b) Constructive notice: If the owner has recorded the deed with the local gov. the D is said to have been put on notice of the easement. c) Inquiry: Reasonable inspection and reasonable inquiry into the status of the deed is required. Something you dont actually know but could have known if you had taken reasonable steps. Courts usually taken expansive interpretation of inquiry notice (extended as far as buyer to know about plumbing of house) Recording Acts: Someone with newly acquired interest in land needs to record the deed to give notice to the world o If not deed is not recorded then purchaser could have inquiry notice

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Easements by Prescription: Paxson Implied easements that give the easement holder a right to use another person's property for the purpose the easement holder has used the property for a certain number of years o A prescriptive easement is never agreed to or permitted, it just exists. o Gives easement holder the right to use the easement for the purpose it has been used in the past (for over a certain amount of years A. Elements: a) Land must have been actually and visibly used for a certain period of time (10 years) b) The use must have begun and continued under a claim of right Courts are interested in objective acts o Does not require continuous use all the time, only requires use that is consistent with that of a reasonable easement holders use Does not require exclusive possession c) The use must have been hostile to the true owner of the land. A person who receives permission from the landowner to be on the property cannot gain an easement by prescription no matter how long the claimaint uses the property B. Prescription vs. Possession a) Prescription is concerned with use of a property as opposed to title Perception is using the property only for a limited use Possession is a more complete physical domination and occupation b) Possession requires exclusive use, prescription does not Possession, you have to keep all other people out, including the true owner Prescription, other people are using the area too including the true owner C. Restatement: a) An easement by prescription may be created by a use that is made pursuant to the terms of an intended but imperfectly created servitude. Oral agreement that should have been put into writing for statute of frauds purposes. D. Scope: Restatement a) The manner, frequency, and intensity of the use may change over time to take advantage of developments in technology and to accommodate normal development of the dominant estate or enterprise benefitted by the servitude. b) Permissible uses of the easement are uses which do not cause unreasonable damage to the servient estate or interfere unreasonably with its enjoyment Locations, Relocations and Use of Easements: Davis and Lew. Lewis relocation only by an undefined right of way A. Davis Rule (Common law, still majority today) a) Once location of an express easement is established the location may not be changed unless both parties agree B. Lewis Rule (New York) a) The servient owner can relocate an express easement if the original location is not clearly defined in the deed and so long as the moving doesnt interfere with the dominant owners use and enjoyment of the easement and the intent/purpose of the easement. The servient owner must pay C. Restatement: a) Unless it expressly says you cant move it, cyou can as long as it doesnt interfere D. Policy Reasons for each Rule: a) Davis Allowing it to be relocated creates uncertainty Depreciates value of the servient estate Discourages land improvement Incites litigation

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b) Lewis: With the Davies rule, servient estate might harass the dominant estate to consent Want to Balance reasonable land use and development with changes over time with burden placed on servient estate c) Restatement Want to maximize interest of both parties E. Use of Easements: a) Easements are defined by the intent of the parties If the deed/agreement provides clear dimensions and descriptions of where the easement should be located the easement cannot be moved If the easement is general, especially if other easements are described in detail in the same agreement, then the easement is held to be indefinite and able to be moved as long as elements are satisfied o Courts stress original parties unexpressed but presumed intent in determining what qualifies as authorized use of easement Courts assume scope of easement would evolve with time b) Elements Landowner bears the expense of the relocations Change does not frustrate the parties intent or object in creating the right of way Does not increase the burden on the easement holder Does not significantly lessen the utility of the right of way F. Rules for movement of easements apply to implied, express, and prescriptive easements a) Presumed intent in an express easement and an implied intent in an implied easement are different theoretically but accomplish the same thing Express: See what the parties put in about how the easement should evolve over time Implied: We expect the parties would have intended people to have reasonable enjoyment over time so ;ong as there is no undue burden Use of easement for Non-Dominant Land Brown v. Voss A. General Rule a) An easement appurtenant to one parcel of land may not be extended by the owner of the dominant estate to other parcels owned by him, whether adjoining or distinct tracts, to which the easement is not appurtenant For an express easement the court will look to the intent of the parties to establish the rights granted b) If an easement is appurtenant to a particular parcel of land, any extension thereof to other parcels is a misuse of the easement c) Balance between reasonable changes and undue burdens Express easement: Whatever an express easement says look to intent of parties Look to foreseeability of land use/development and adequate utility of land o Subdivision of large tract of land common development Policy: o If dominant owner could keep adding land and trying to extend easement out of other parcels would be like servient estate writing a blank check Sucession, Exclusivity Assignability, and Divisibility: Pasadena A. Easement in gross: Easement owner is benefitted by the easement, not a piece of land. No dominant parcel of land. (in Pasedena case it is a pipeline) a) An easement is binding on all subsequent owners and occupiers of the servient property until it terminates b) The benefit of an appurtenant easement passes to all subsequent owners and occupiers of the dominant property, including adverse possessors c) Benefits and possession remain with persons in possession, not future interest holders d) When the dominant or servient property is subdivided the parts of the land on which the easement is located remain burdened and all parts of a dominant parcel are entitled to use easements appurtenant to the parcel

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e) Easement in gross can be transferred if the parties intend for them to be transferable. Will look to the nature of the easement f) Exclusivity: General Rule: o The holder of the easement is entitled to use the servient estate as reasonable necessary for the convenient enjoyment of the easement and that the holder of the servient estate is entitled to make any use that does not unreasonably interfere with enjoyment of the easement For a complete (exclusive) interest to be conveyed, the language of the easement must clearly state that intention Third party use of easement: o When a third party uses the easement their right to use it is derived from the owner of the servient tenements o Whether it is a permissible use is to be determined by whether the owner of the servient tenements could have used the land in that manner. Easement owner has right to use unused space on land for reasonable improvements Where the instrument is not specific, it is usually inferred that they intended the easement to adapt to meet the needs created by normal development of the dominant estate and changes in use brought about by new technology g) In Pasadena: Court says if there was an unreasonable interference somewhere down the line, then the second easement owner will have to move his pipes Modification and Termination of Easements and Profits: Oregon Profit a ponder: Right or privilege to go on land of another and take away something of value from its soil or from products of its soil o In Oregon, conveyed land but reserved right for family to hunt and fish (buyers claim abandonment of easement) A. Abandonment: An easement can be terminated if the benefited party abandons the property. Mere nonuse not enough Central Oregon a) Party claiming abandonment of easement must show: Nonuse; AND o A verbal expression or unequivocal conduct of an intent to abandon; or o Conduct inconsistent with an intention to make further use Conduct which is equivocal in character will not suffice. The intent to abandon must be clear and it must be accompanied by some specific act of abandonment b) Restatement: When a change occurs that makes it impossible as a practical matter to accomplish the purpose of a servitude, a court can modify the servitude to accommodate o If the modification is not practicable, a court may terminate the easement c) Courts will always look to the entire agreement to find the intention of the parties as to the uses granted Assignability: In Gross o Easements in gross can be transferred if the original parties so intended for the easement to be transferrable Look to document If its a noncommercial easement in gross it is not assignable unless expressly put in deed Look at nature of easement Was it intended for someone special Was it a commercial easement o A commercial easement in gross is generally assignable (doesnt matter what company coal mines on a property, just want profit from mining)

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COVENANT A. Covenant Basics: Promises made by the grantor to the grantee or by the grantee to the grantor o Ex: Promise by grantee to use the land only for residential purposes Are these promises binding on successor of the land (subsequent owners) How does the burden of the promise benefit of performance move down to subsequent generations o Doctrine of covenants running with the land solves this problem Contract theory couldnt solve problem because parties are not in privity with one another 2 Part Analysis: o Does the Burden run with the land o Does the benefit run with the land Covenants Allow O and A to sort out their preferences in the market place, and covenants running guarantees that these preferences will be protected in the future. o HYPO: O didnt want any noise/pollution and traffic next door. If we didnt have covenants running with the land then his only option is to not sell the land o But O doesnt want to invest money in the next door property for no reason, he wants to sell it and make a profit o Covenants running with the land help him so he can sell it to A with covenant restricting the use of the land to residential purposes O will tell A he will sell him land at 90 cents on the dollar. The difference between the discounted value and the value without a restrictive covenant adds to the value of the other property Makes his retained land more valuable because no noise/pollution and traffic o Will courts allow covenants that require someone to wear a hat or if it was to a traditional leave it to beaver family home? YES: thats what O and A wanted NO Can lead to discrimination Can lead into inefficiency and absurdity Issue of threat to personal autonomic Covenants might have made sense when it was created but doesnt make sense in modern day (obsolete) o If everything around the property has become industrial doesnt make sense to keep it residential Issues of deadhand control: How long do we let the vision of the past control the present All can be summed up into an anti restriction policy o Obsolesce, autonomy, and deadhand control B. Real Covenants a) Action for enforcement seeking money damages b) Requirements for existence: Formalities: o Writing that requires statute of frauds Intent o Intent of original owners must have been that covenant bind A and future owners and that it (run with the land) benefit original owners and future owners of the lot. Look at the deed and circumstances Magic Words: successors and assigns Touch and Concern o Applies to both sides of covenant

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2 questions that must be asked Burden Side Test: Does the burden of the covenant touch and concern burden of the parcel o Look to see if performance of covenant decrease use of the burdened parcel to that burdened owner Benefited Side Test: Does performance of covenant increase use and enjoyment of benefited parcel to the benefited owner

Privity o Horizontal: Refers to original estate of the coventing parties Requires there be some conveyance of some estate between them to which the covenant can attach I O and A are neighbors and execute a document limiting their respective properties to single family residential use there is no horizontal privity because the document does not transfer a conveyance of an estate o Vertical: Refers to relationship between the original coventing party and her successor (on both burdened and benefited side) Relationship between coventor and coventor 1, and coventee and coventee 1 Current party must have succeeded to the same estate as coventee or coventor Subsequent property owner must succeed to an original partys entire estate Covenants running with the land solve the problem of how to covenant on subsequent generations (contract law couldnt resolve it because no privity between B and C)

C. Equitable Servitude a) Intent b) Touch and Concern c) No strict vertical privity but need some connection/relationship to the land on both sides a. No Formalities (writing) & No horizontal privity D. Open Ended Covenant to Pay Money: Neponsit a) Common law did consider affirmative covenants to pay money did touch and concern. Affirmative covenants: require the owner of the burdened estate to perform some act or pay money Negative: Covenants: restrict or prohibit the uses that can be made of the burdened property b) However, this court said that we should not exalt technical form over substance Whether a particular covenant is sufficiently connected with the use of land to run with the land, must be in many cases a question of degree o Touch and Concern must depend on the effect of the covenant on the legal rights which otherwise would flow from ownership of land and which are connected with the land Does the covenant in purpose and effect substantially alter these rights o Less formalized and more general test than the original touch and concern test than the original touch and concern test c) Policy reasons for new test: If they didnt common areas wouldnt be able to be maintained past original owners, and area would go to shit Court takes a realistic modern view there is utility in allowing owner to do this so they can maintain the premises d) Privity of Estate: The Defendant in this case was an owners association of the housing development Because the association represents all of the residents it represents the people in privity The court allowed the association to be in privity in order to support these organizations o Court allows vertical privity to exist where there is an agent to enforce it. Otherwise if there wasnt an agent there would be tons of separate suits

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e) Why does privity requirement exist? Basic problem in covenants was taking promise made by one party and sticking it down to people who never promised anything imposing the burden on them To get people to be bound even though they never agreed made requirement of horizontal privity o Court will allows vertical privity to exist where there is an agent to enforce it (in Neoponsit it was the Association) f) What do we lose by having horizontal privity requirement If A and B are neighbors and then agree to make covenant between them there would be no horizontal privity because there is no conveyance or passing of fee simple It would be enforceable in equity because dont need horizontal privity for equitable servitudes so could get an injunction but not money damages E. Personal Covenant use (Eagle Enterprise) v. Public Covenant Use (Neponsit): a) Personal covenant about water use (Eagle) vs. Public Easement (Neponsit) b) There was an express clause in the deed that said that the covenant would run with the land Court said that it not enough, it must still run with the land c) Court holds that covenant does not touch and concern Real Covenants run with the land and thus can last forever o They can get an independent source of water (built) own well and eagle is only offering to supply for 6 months when they live there year round d) Policy Reasons behind applying or not applying touch and concern Marketability of Land o In Neoponsit it was enhancing marketability o In Eagle, it stifled marketability if people living on land were forced to buy water for 6 months when they live there year-round Anti-Competition o People should have the right to buy wherever they want Duration of Covenant o Neoponsit had expiration to end o Eagle was going to last forever (perpetually). If they wanted to industrialize or farm there a covenant that lasts forever wouldnt allow for natural changes in land e) Why does Touch and Concern exist Will help courts get rid of covenants they dont want to last forever Need to be able to strike down covenants that arent helping to increase utilization of the land and are decreasing and restricting utilization F. Restraints on Alienation: Kerley v. Nu-West a) Direct Alienation When an owner of a fee simple estate must get the consent of another before transferring the fee Restatement o A servitude that imposes a direct restraint on alienation of the burdened estate is invalid if the restraint is unreasonable. Reasonableness is determined by weighing the utility of the restraint against the injurious consequences of enforcing the restraint Court dont like direct restraints because we like land in market place to be able to pass freely and these restraints that run with the land have the potential to run forver b) Indirect Alienation: Owner of a fee simple estate must offer some of the consideration to another before transferring the fee Restatement o A restraint is permissible if it is reasonable under the circumstances

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Was the restraint designed to protect some interest in the covantees land Is the restraint of limited duration Does the restraint accomplish a worthwhile purpose or is it capricious Reduces the amont that a person gets transferring the land or makes transfers less desirable but are not prohibition against transfer just makes transfer less valuable should he choose to transfer

G. Covenants Against Competition: Whitinsville Plaza v. Kotseas a) Court overrules old doctrine not allowing covenants against competition to T+C the land b) New Rule: Reasonable covenants against competition may be considered to run with the land when they serve a purpose of facilitating orderly and harmonious development for commercial use o Reasonably Limited in in time; and o Reasonably limitd in space; and o Consonant with public interest c) Privity; Equitable relief The benefited party was required to have privity because we want people litigating cases that care The burdened party can be a trespasser equitable relief should etend to anyone on the burdened land degying a covenant d) T+C test factors: Just increasing value is not the T+C test Court wants to see a direct physical advantage Looks for a benefit unique to the owner Fundamentally tied to the enjoyment and the ownership of the land o Anti competition covenant benefit is only a benefit as owner of the land. It is a unuqie benefit which is fundamentally tied to land ownership so it does meet touch and concern requirements H. Enforcement in gross (no benefited parcel): Davidson Bros Supermarket a) Not usually enforceable b) Worries about tracking down in gross party c) In gross party has no tie to the immediate burdened land no direct physical advantage d) Court in this case cited public policy to void the covenants Korngold doesnt like this sets precedent to just use public policy argument whenever a covenant gets in the way Parties should be required to negotiate or buy out the covenant I. Design Controls: Rhue v. Cheyenne Homes a) Rule: Restrictive Covenants placed on land for the benefit of purchasers within a subdivision are valid and not against public policy, and are enforceable in equity against all purchasers. A refusal to approve plans must be reasonable and made in good faith and must not be arbitrary or capricious b) Why Permit architectural and aesthetic controls? Pros o Protect property values o People should get what they bargain for/exceptation values of the parties o Free choice: People choose to live in specific places for specific reasons Cons o Free of expression o Socially desirable outcomes could be nixed: solar panels, satellite dish o Potential for abuse by some over others c) Judicial Standard: Refusal to approve plans must be reasonable and in good faith

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As long as they are reasonable, design restrictions are enforceable

J. Covenants Restricting Household Occupants and Person Freedoms: Nahrstedt a) Rule: Restrictions on common interest developments are enforceable unless unreasonable o Not the same as saying a covenant will be enforced if reasonable Burden on association to prove reasonable b) Courts will give deference to original rules put in place to restrict behavior and will look at rules decided subsequent to the master deed for reasonableness Equity will not enforce any rule that violates public policy restrictions based on race, sex, religion, etc. Courts will not uphold arbitrary rules ones having no rational relationship to the protection, preservation, operation or purpose of the affected land K. Changed Conditions Doctrine: Downs v. Kroger a) If conditions in the neighborhood have changed so drastically that the intent of the covenant can no longer be achieved, the court will not enforce the covenant b) Consider: Contract Theory intent Efficient use of land Unjust to indefinitely uphold covenant loss in value c) In applying changed conditions doctrine, court must focus on the region as a whole, not just the burdened partys situation D knew about covenants on his property and surrounding it Potential for other surrounding residential owners to lose value Changes need to be affecting the entire region d) Changes that are sufficient to enforce the covenant Internal changes to a subdivision Industrial waste Public Easement (Eminent domain) Commercial properties dominate the surrounding land

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