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Property Outline #2

    1. Requirements 
      1. Actual Possession: AP must take actual possession of the land -claimant must physically use the particular parcel of land in the same manner that a reasonable owner would, given its nature, character, and location.
        1. Color of title: Due to a defective document that purports to transfer title. Claimant w/color of title who has actual possession of part of the land described is deemed to be in constructive possession of the entire parcel.
      2. Exclusive Possession: AP must hold exclusive possession.  His possession must not be shared with either the true owner or the general public, but must be as exclusive as would characterize an owner’s normal use for such land.
      3. Open and Notorious Possession: AP’s acts of possession must be open and notorious—so visible and obvious that a reasonable owner who inspects the land will receive notice of an adverse title claim. (EX: residing on land, building fences, cultivating crops).
      4. Adverse or Hostile Possession Under Claim of Right: GR: the requirement of adverse or hostile possession under a claim of right is met if the claimant merely uses the land as a reasonable owner would—without permission from the true owner.
        1. Objective test: majority view. AP’s subjective belief about who owns the land is irrelevant. Conduct is deemed objectively hostile and adverse regardless of subjective intent. If true owner didn’t authorize possession and all other criteria are satisfied, AP is established.
        2. Good faith test: AP must believe in good faith that he owns title to the land.
        3. Intentional trespass test: AP must know he does not own the land and subjectively intent to take title from true owner.
      5. Continuous Possession: AP’s acts of possession must be as continuous as those of a reasonable owner, given the nature, location, and character of the land. 
        1. Tacking: successive periods of adverse possession by persons in privity can be combined to satisfy the statutory duration requirement.  No privity between successive trespassers.
      6. For the Statutory Period: The period for adverse possession varies from state to state.  Most states use periods of 10, 15 or 20 years.
    2. Standard of proof: clear and convincing evidence
    3. Adverse possession automatically extinguishes the former owner’s title and creates a new title in the adverse possessor by operation of law.
    4. Restrictions:
      1. The imitations period for adverse possession is extended or tolled when the owner is unable to protect his rights due to a disability:
        1. infancy
        2. mental illness
        3. imprisonment
      2. Adverse possession is not available against land owned by the federal government or many state governments. Some states have done away w/this rule.
    5. Statutes in some states require payment of taxes.
    6. Policy for AP: specialized statute of limitations to recover possession of land; method for curing title defects; tool to facilitate economic development; avoiding injury to AP who has become attached to land while owner has virtually abandoned it.
    7. True owner: can adversely possess back; bring lawsuit before end of statutory period
    1. Affirmative Easement: nonpossessory right to use land in the possession of another.
      1. Dominant tenement: land that is benefitted by the easement
      2. servient tenement: land that is burdened by the easement
      3. Every easement is classified as either appurtenant or in gross. Determined by intention of the parties. 
        1. Easement appurtenant benefits the easement holder in his capacity as owner of the dominant tenement. Attached to dominant land, not to any particular owner. Exists only when there is dominant and servient land. Automatically transfers when dominant tenant is transferred.
        2. Easement in gross benefits the holder in a personal sense, whether or not he owns particular land.
    2.  Categories of affirmative easements:
      1. Express Easements: voluntarily created in a deed, will, or other written instrument. The writing must identify the parties, manifest an intent to create an easement, describe the affected land, and be signed by the grantor.
        1. Easement by grant
        2. Easement by reservation
        3. Running with the land – requirements for burden to run with the land: An easement that runs with the land is treated as if it were attached to that parcel.
          1. Writing
          2. Intent
          3. Notice
            1. Actual notice
            2. Inquiry notice
            3. Constructive notice
        4. Running with the land – requirements for benefit to run with the land:
          1. Appurtenant easement: If a benefit runs with the land it is treated as if it were attached to that particular parcel of land and is called an appurtenant easement. Appurtenant easements follow possession of the dominant estate through successive transfers.
          2. Easements in gross
        5. Presumption: Easements are presumed to be appurtenant r
        6. Severability: Courts generally hold that an appurtenant easement cannot be severed from the land.
        7. Transferability: Appurtenant easements are transferable. When the dominant estate is sold or given away, the new owner also owns the appurtenant easement attached to the land.
      2. Easements Implied from Prior Existing Use: requirements
        1. severance of title to land held in common ownership;
        2. an existing, apparent, and continuous use when severance occurs, and
        3. reasonable necessity for the use at time of severance.
        4. May be by grant or reservation
        5. Type of use existing before severance is a quasi-easement
        6. exception to S of F
      3. Easements by Necessity: Requirements
        1. severance of title to land held in common ownership; and
        2. strict necessity at the time of severance.  No prior use.
          1. GR: strict necessity exists when the parcel in question has no legal right of access to a public road. 
          2. MR: reasonable necessity.
        3. Exception to S of F
      4. Prescriptive Easements : claimant’s use must generally be
        1. open and notorious,
        2. adverse and under a claim of right,
          1. objective test v. subjective test
          2. GR: presumption that use was adverse and under claim of right.
          3. Minority: presume all use is permissive.
        3. continuous and uninterrupted for the statutory period.
          1. If owner succeeds in stopping use for a short period of time, continuity ends.
        4. Some: exclusive use
          1. May be exclusive although not the only one using it; must be separate and distinguishable from uses by general public.
        5. Few: Actual use
      5. Easements by Estoppel: Ordinarily, a license is revocable.  A license that becomes irrevocable becomes the functional equivalent of an easement.  Requirements to create an irrevocable license:
        1. a license, express or implied
        2. the licensee’s expenditure of substantial money or labor in good faith reliance; and
        3. the licensor’s knowledge or reasonable expectation that reliance will occur.
        4. endures long enough to allow licensee to recover value of their investment.
    3. Policy:
      1. Express: recognizing express easements respects liberty of landowners to act as they wish; will facilitate efficient use of land.
      2. Implied: If existing use is sufficiently apparent, parties were on notice of use and presumably expected that it would continue. Failure to grant//reserve express easement is an oversight rectified by implied easement; promotes productive use of land.
      3. Necessity: productive use of land; parties intent – grantor intends to convey everything necessary for grantee to make beneficial use of land.
      4. Prescriptive: Facilitates productive use of land
      5. Estoppel: usually explained in terms of equity; facilitates productive use of land.
    4. Scope of easement: An easement cannot be expanded so far that it unreasonably burdens the servient land.
    5. Negative Easements: Entitles holder to prevent owner of servient land from doing a particular act on that land – blocking windows, blocking air that flowed in a defined channel, blocking water that flowed in a defined channel, and removing support from a building.
    6. Other Types of Easements
      1. implied from a subdivision map or plat
      2. created through eminent domain
    7. Transfer of Easements: Any transfer of title of dominant tenement automatically transfers the benefit of an appurtenant easement, absent an agreement to the contrary.  In some states, an easement in gross is transferable only if it is for a commercial purpose (e.g., a railroad easement).  In other states, any easement in gross is freely transferable, unless the original parties had a contrary intent.
    8. Termination of Easements
      1. Abandonment: an easement is deemed abandoned where the holder both
        1. stops using it for a long period AND
        2. takes other actions that clearly manifest intent to relinquish the easement. (objective test) 
      2. Misuse: will extinguish easement where injunctive relief is wholly ineffective.
      3. Prescription: Same prescriptive elements used to establish easement but claimant’s use need not interfere w/servient owner’s use of land. Servient owner’s conduct must substantially interfere w/holder’s use of easement.
      4. Express limitation
      5. Voluntary release
      6. Extinguishment by merger
      7. Eminent domain
      8. Estoppel
      9. If land is conveyed to bona fide purchaser without notice of easement (except implied, necessity, prescriptive)
      10. Frustration of purpose
      11. AP
    1. Real covenant: a promise concerning the use of land that
      1. Benefits and burdens the original parties to the promise and also their successors and
      2. is enforceable in an action for damages. 
      3. A real covenant may be either affirmative (a promise to perform an act) or negative (a promise not to perform an act).
      4. The law distinguishes between the original parties to the covenant and their successors
      5. Each real covenant has two “sides”—the burden (the promissor’s duty to perform the promise) and the benefit (the promissee’s right to enforce the promise).
    2. Requirements for the Burden to Run: Original promisee vs. promisor’s successor.
      1. Writing that satisfies the Statute of Frauds;
      2. Intent to bind successors; (express language of covenant)
      3. Touch and concern: the covenant must relate to the direct use or enjoyment of the land. 
        1. Burden side: relates to the use of the land and the obligation is intended to benefit the current and future owners of the dominant estate.
        1. Benefit side: improves the enjoyment of the land or increases its market value
        2. EX: a covenant that restricts the height of future buildings on a parcel, limits uses to residential purposes, covenants not to compete
        3. Affirmative covenants that require promisor to perform an act are disfavored.
      4. Horizontal privity: exists between the promissor and the promisee who have mutual, simultaneous interests in the same land (landlord/tenant, grantor/grantee).
          1. Mutual privity: Simultaneous interest in the same parcel. (landlord-tenant).
          2. (2) Instantaneous privity: A covenant intended to burden one parcel for the benefit of another can become attached to both parcels if it is created at the moment the owner of one parcel sells the other parcel.
      5. Vertical privity: concerns the relationship between an original party and his successors.  Vertical privity exists only if the successor succeeds to the entire estate in land held by the original party.              Not through AP.
        1. Strict vertical privity: Technical requirement that grantor not hold any future interest in the land.
        2. Relaxed vertical privity: Imposes the burden on any future possessor of burdened land and the benefit on any future possessor of benefited land.
      6. Notice: the successor must have notice of the covenant.
        1. one acquiring by gift is not bona fide purchaser and is bound by prior covenant without notice.
    3. Requirements for the Benefit to Run: Promisee’s successor vs. original promisor
      1. writing that satisfies the Statute of Frauds
      2. Intent to benefit successors;
      3. Touch and concern: benefit of the covenant must touch and concern land
      4. vertical privity
        1. greatly relaxed on the benefit side
    4. Requirements for burden & benefit to run: Promisee’s successor vs. promisor’s successor
      1. All elements for burden and benefit to run must be fulfilled
    5. Termination of Real Covenants
      1. Abandonment: occurs when the conduct of the person entitled to the benefit of the covenant demonstrates the intent to relinquish her rights. 
      2. Changed conditions doctrine: a covenant becomes unenforceable when conditions in the area of the burdened land have so substantially changed that the intended benefits of the covenant cannot be realized.
      3. Fixed period, express release of rights, eminent domain, merger
    6. Remedies for Breach of Real Covenants
      1. Compensatory Damages: difference between the fair market value of the benefitted property before and after the defendant’s breach.
    7. Restatement view: Servitudes: would greatly simplify this area by combining the real covenant and the equitable servitude into one doctrine: the servitude.   Under this approach, a contract or conveyance creates a servitude if:
      1. the parties so intend
      2. it complies with the Statute of Frauds; and
      3. it is not illegal, unconstitutional, or violative of public policy.
    8. Policy: Real covenant can help to ensure that land is used efficiently. Disfavored based upon view that best interests of society are advanced by free and unrestricted use of land.
    1. Equitable Servitude: promise concerning the use of land that
      1. benefits and burdens the original parties to the promise and their successors and
      2. is enforceable by injunction.
    2. Requirements for the Burden to Run: original promisee v. promisor’s successor
      1. writing that satisfies the Statute of Frauds or implied from a common plan;
      2. Intent: the original parties must intend to burden successors;
      3. Touch and concern
      4. Notice: successor must have notice of the promise (unless title acquired by gift)             
        1. actual
        2. record
        3. imputed
        4. inquiry
    3. Requirements for the Benefit to Run: promisee’s successor vs. original promisor
      1. the promise must be in writing or implied from a common plan;
      2. Intent: the original parties must intend to benefit successors
      3. Touch and concern
    4. Do the benefit and the burden both run: Promisee’s successor vs. promisor’s successor.
    5. Common plan or common scheme to impose uniform restrictions on a subdivision: most courts conclude that an equitable servitude will be implied in equity, even though the Statute of Frauds is not satisfied.  The common plan is seen as an implied promise by the developer to impose the same restrictions on all of his retained lots.
      1. All lots must be burdened and benefited by uniform restrictions
    6. Implied reciprocal covenant and common plan: If developer manifests common plan or scheme to uniform restrictions on subdivision, usually an equitable servitude will be implied in equity. Common plan viewed as implied promise by developer to impose same restrictions on all lots. Every lot is burdened/benefited by same restrictions.
    7. Evidence of existence of common plan:
      1. Percentage of deeds containing restriction
      2. Subdivider’s oral representations buyers
      3. Statements in written advertising
      4. Recorded plat maps or declarations
    8. Termination of Equitable Servitudes
      1. Racially- restrictive covenants
      2. Doctrine of changed conditions: where conditions have so changed in the neighborhood that intended benefits cannot be obtained in a substantial degree.
        1. Border lot: Changed conditions outside subdivision that only impact border lots not sufficient to trigger doctrine. Interior lots continue to receive substantial benefit, unless changed conditions adversely affect all the lots.
      3. Acquiescence: P who ignores violation of promise by some owners and seeks to enforce same promise against D
      4. Estoppel: If P manifests intent not to enforce promise
      5. Laches: arises when P’s unreasonable delay in enforcing promise causes substantial prejudice to D.
      6. Release, abandonment, merger, eminent domain; relative hardship, unclean hands
    9. Remedies for Breach of Equitable Servitudes  The standard remedy for breach of an equitable servitude is an injunction. 
    1. Most land in the United States is held in the most basic estate, fee simple absolute.
    2. Creation: Deed, will trust
    3. Classification:
      1. (1) freehold: owning land (fee simple, life estate, fee tail) or nonfreehold: leasing land (term of years tenancy, periodic tenancy, and tenancy at will).    (2) absolute or defeasible? (3) legal or equitable?
    4. Freehold: The distinction between the three freehold estates is based on duration. 
      1. Fee simple: freehold estate whose duration is potentially infinite.  The most common form is fee simple absolute.  At one time, it was necessary to use special language to create a fee simple (e.g., “to A and his heirs”), but today informal language such as “to A” will suffice in most states.
      2. Fee tail: largely-obsolete freehold estate whose duration is measured by the lives of the lineal descendants of a designated person
      3. Life estate: freehold estate whose duration is measured by the lives of one or more specified persons.  For example, a grant “to A for A’s life” creates a life estate in A for as long as he lives.  Alternatively, the duration may be measured by the life of a person other than the grantee (e.g., “to A for B’s life”); this is called a life estate pur autre vie.
    5. Absolute or defeasible
      1. Most estates are absolute – duration is restricted only by the standard limit that defines that category of estate. 
        1. Example: if O conveys Greenacre “to A,” then A owns a fee simple absolute.  This estate may endure forever, consistent with the basic definition, and will end—if at all—only by escheat.
        2. Escheat: If one dies intestate without heirs, his estate passes to the state in which the property is located.
      2. A defeasible estate is subject to a special provision that may end the estate prematurely, if a particular event occurs, e.g., “to A, but if A ever smokes cigars, then to B.”
    6. Legal or equitable: Each estate and future interest can also be created in trust.  If O grants land “to T in trust for L, and then for R,” then T holds legal title to the land, but L has an equitable life estate and R has an equitable vested remainder in fee simple absolute.
    7. Restrictions on Transfer: Rule Against Restraints on Alienation Any total or “absolute” restraint on alienation of a fee simple is null and void. 
    8.               Example: if O conveys land “to A, but if A ever attempts to sell the land, then to B,” a court would find the restraint void; thus, A owns fee simple absolute and B has no interest.  Partial restraints on alienation of a fee simple may be allowed if reasonable in nature, purpose, and duration.
    1. Concurrent ownership: Two or more persons, each holding the right to concurrent possession.
    2. Types of concurrent estates: (1) TIC; (2) JT; (3) TBE
    3. TIC:
      1. Each co-owner holds an undivided fractional share in the entire parcel of land,
      2. Each is entitled to simultaneous possession and enjoyment of the whole parcel. 
      3. Any devise to two or more unmarried persons is presumed to create a tenancy in common (e.g., “to A and B”). 
      4. Freely transferable during the holder’s lifetime and at death.
    4. JT:
      1. A joint tenant has a right of survivorship.  If O conveys land “to A and B as joint tenants, with right of survivorship,” and A dies first, then B holds fee simple absolute. 
      2. four unities to create and continue a joint tenancy. 
        1. Joint tenants have to acquire title at the same time;
        2. title by the same deed or will;
        3. each interest has to be identical in size;
        4. and each tenant has to have an equal right to possession
      3. A joint tenancy interest is inalienable.
    5. TBE:
      1. can only be created in a husband and wife (e.g., “to A and B, as tenants by the entirety”)
      2. It requires the same four unities as the joint tenancy, plus the fifth unity of marriage.
      3. It can be terminated only by divorce, the death of one spouse, or mutual agreement of the spouses
      4. in some states creditors of one spouse cannot levy on property held in tenancy by the entirety
    6. Rights and Duties of cotenants:
      1. each cotenant has an equal right to possession and enjoyment of the whole property, regardless of the share of his fractional interest.
      2. GR: cotenant in exclusive possession of the property is not liable to the other cotenants for rent, absent an ouster.
      3. However, each cotenant is entitled to a pro rata share of
        1. (1) rents paid by third persons and
        2. (2) profits from the land. 
      4. All cotenants are obligated to pay their share of mortgage payments, taxes, and related assessment;, they are not individually liable in most states for the cost of repairs or improvements, absent special circumstances.
    7. Termination of concurrent estates:
      1. Partition: Any tenant in common or joint tenant may end the cotenancy by suing for partition; the court will grant partition automatically, with no need to show cause. 
      2. partition in kind (physical division of the land) or
      3. partition by sale (division of proceeds from the judicial sale of the land). 
      4. A cotenant can always end or sever the joint tenancy by conveying her interest to another person.  Example: if A and B are joint tenants, and B conveys her interest to C, then A and C now have a tenancy in common, because the unities of time and title are missing.
    1. Future interest: nonpossessory interest that will—or may—become a possessory estate in the future. 
      1. Example: if O conveys land “to A for life,” O retains a future interest to retake possession when O dies.
      2. Usually family gifts or created for economic or charitable reasons
      3. Classified by the identity of the holder
      4. A future interest is a presently existing property right
    2. Future interests in the transferor: (1) reversion; (2) possibility of reverter; (3) right of entry
      1. Reverter: Owner conveys a vested estate smaller than the estate he owns.
        1. EX: if O holds fee simple absolute, but conveys merely a life estate to A, O retains a reversion.
      2. Possibility of reverter: When a transferor creates a fee simple determinable, the future interest retained is a possibility of reverter
        1. EX: if O conveys land “to L for so long as used as an orphanage,” O retains a possibility of reverter.
        2. Many states now restrict the possibility of reverter and right of entry by statute.  In some jurisdictions such an interest will lapse within 20 or 30 years of creation unless the holder files a notice of intent to preserve it.
      3. Right of entry: arises when a transferor creates a fee simple subject to a condition subsequent
        1. EX: O conveys “to L, but if L fails to use the property as an orphanage, then O may enter and retake possession.”
    3. Future interests in the transferee: (1) remainder; (2) executory interest
      1. Remainder: Future interest created in a transferee that is capable of becoming possessory upon the natural termination of a prior estate created by the same instrument.
        1. EX: A conveys “to B for life, and then to C,” C’s interest is capable of becoming possessory when the prior estate (B’s life estate) naturally terminates; C holds a remainder.
        2. All three vested remainders are (a) created in a living, ascertainable person and (b) not subject to any condition precedent except the natural termination of the prior estate. 
      2. Vested remainders: (1) indefeasibly vested remainder; (2) the vested remainder subject to divestment; (3) and the vested remainder subject to open.
        1. Indefeasibly vested: Certain to become a possessory estate
          1. EX: A conveys “to B for life, and then to C,” C (or C’s successor) will clearly be entitled to possession upon B’s death. 
        2. Vested subject to divestment: Certain to become possessory unless some specified event occurs
          1. EX: “to B for life, then to C, but if C ever smokes a cigar, then to D. 
        3. Vested subject to open: held by one or more ascertainable members of a class that may be enlarged by the future addition of presently unascertainable persons.
      3. Contingent remainder: The contingent remainder is either (a) created in an unascertainable person or (b) subject to a condition precedent.
        1. EX: A conveys “to B for life, and then to C if C graduates from law school.”  C’s remainder is contingent because she must first satisfy a condition precedent (graduating from law school) before she is eligible to take possession following B’s death.
    4. Executory interests: a future interest created in a transferee that must “cut short” or “divest” another estate or interest in order to become a possessory estate. 
      1. EX: A conveys property “to A, but if B returns from France, then to B,” A has a form of fee simple that may potentially endure forever; in order to become a possessory estate, B’s interest must cut short A’s fee simple, so B has an executory interest.
      2. Types of Executory Interests: (1) shifting executory interest (divests the transferee); (2) springing executory interest (divests the transferor).  However, this distinction has no legal significance.
    5. Creation of interest: The remainder or executory interest in real property can arise only through express language in a valid deed or will, not through implication. 
    6. Transfer of interests: Remainders and executory interests may be freely transferred in most states.  Some states insist that contingent remainders and executory interests cannot be transferred by an inter vivos conveyance. 
    7. Rule against perpetuities: No interest is good unless it must vest, if at all, not later than twenty-one years after some life in being at the creation of the interest. To comply with the Rule, it must be logically provable that within the specified period a covered contingent interest will either vest (that is, change into a vested interest or present estate) or forever fail to vest (that is, never vest after the period ends), based only on facts existing when the future interest becomes effective.
      1. O conveys “to A for life, then to the first child of A to reach age 30.”  A is alive when the conveyance takes effect, but A has never had children.  A potential unborn child (A’s first child to reach age 30) receives a contingent remainder under this language.  It cannot be logically proven that this interest is valid.  A might have a child, B, one year after the conveyance; suppose O and A then die.  Twenty-nine years later, if B survives, her contingent remainder will “vest” by becoming a present estate.  B’s interest is deemed invalid under the Rule—at the time of O’s conveyance—because such vesting would come too late (more than 21 years after O and A, the lives in being, died). 
      2. Modern reforms:
        1. adopting a “wait and see” approach (waiting until the end of the relevant period to see if the interest in fact vested or forever failed to vest)
        2. permitting reformation to validate the interest if consistent with the transferor’s intent.
    8. Policy: Tension between individual autonomy and social welfare.
    1. Leasehold estate: (also called a nonfreehold estate)  is a legal interest that entitles the tenant to immediate possession of designated land, for either a fixed period of time or for so long as the tenant and the landlord desire.
      1. CL: Lease seen as conveyance
    2. Leasehold estate v. non-possessory interest: The holder of a leasehold estate has the right of exclusive possession.  One holding a license or easement merely has a right to use the land.
    3. Leasehold estates: (1) Term of years; (2) Periodic tenancy; (3) Tenancy at will; (4) Tenancy at sufferance
    4. Term of years: endures for a designated period that is either fixed in advance or computed using a formula that is agreed upon in advance. Automatically expires when the agreed period ends, without any notice of termination.
    5. Periodic Tenancy: lasts for an initial fixed period and then automatically continues for additional equal periods until either the landlord or the tenant terminates the tenancy by giving advance notice.  Example: month-to-month residential lease.
    6. Tenancy at will: no fixed duration and endures only so long as both the landlord and the tenant desire.  Today most tenancies at will arise from implication, not from an express agreement.
    7. Tenancy at sufferance: arises when a person in rightful possession of land wrongfully continues in possession after the right to possession ends.
    8. Creation of tenancy:
      1. Is there a written lease if for longer than a year?
      2. Is tenant protected on the basis of race, color, religion, sex, familial status, national origin, or handicap?
      3. Is there a rent control ordinance?
      4. Possession: GR – landlord has duty to deliver actual possession; MR – landlord only has duty to deliver legal right to possession and no to oust a holdover tenant.
      5. Does tenant have a duty to occupy? GR – No duty unless there is an express lease covenant; Implied covenant will be found in commercial lease where majority of rent is a gross percentage of sales.
      6. Any contractulal term purporting to waive or alter a non-waivable implied term is void and unenforceable.
      7. Contract of adhesion: A contract where one party must accept or reject the contract.
      8. Landlord’s remedies when tenant breaches
        1. Accept tenant’s surrender
        2. Sue immediately for damages for breach
        3. re-let on tenant’s account
        4. wait and sue for rent at end of lease terms (widely rejected)
        5. LL has burden of proof that he used reasonable diligence in attempting to re-let the premises.
    9. LL’s duty to deliver possession: American Rule – Legal right to possession. No duty to deliver actual possession. T may bring suit to recover possession from holdover tenant.
      1. Policy: LL/T relationship is one of equality
        1. freedom of contract
        2. T has same ability and greater incentive to bring suit
    10. LL’s duty to deliver physical possession: English Rule – Actual possession of premises is delivered to T. T may terminate lease or recover damages from L if X is still in possession.
      1. Policy: LL/T relationship is unequal
        1. LL has superior ability to ensure property is vacant
        2. Only LL has legal right to evict
        3. LL more sophisticated about eviction process and better able to bear the costs involved.
        4. Better implements the intentions of the parties
    11. Condition of leased premises:
      1. CL: No lease provision on repair – LL had no duty to repair
      2. CL: Duty to repair assigned to T: included duty to repair; Modern rule does not include duty to rebuild.
      3. CL: Duty assigned to LL. Lease covenants independent. T still obligated to pay rent & cold only sue for damages. Modern rule concept is covenants are dependant on each other.
    12. Actual eviction: If LL breaches by physically barring tenant from property, duty to pay rent ceases entirely and tenant may sue LL for damages for trespass and & an injunction ordering LL to reconvey possession to the tenant.
    13. Constructive eviction: occurs when wrongful conduct of the landlord substantially interferes with the tenant’s use and enjoyment of the leased premises.
      1. Tenant may assert defense that she has been evicted only from a portion of the premises.
      2. GR: LL not liable for acts of other tenants, but law slowly changing.
      3. Used mainly in commercial leases. IWH provides broader protection for residential tenant.
      4. Breaches implied warranty of quiet enjoyment and excuses T from further rent payments. 
    14. Remedies: If the landlord fails to fix the problem within a reasonable time after receiving notice, the tenant may
      1. vacate the premises without further rent liability under the lease.
      2. remain in possession and sue for damages, while continuing to pay rent.
    15. Retaliatory eviction: landlord may not retaliate after: tenant has complained to housing authority, tenant has complained to LL of a violation, tenant has become member of tenant’s union. Evidence of complaint within six months prior creates a presumption of retaliation. RE defense must relate to activities of tenant incidental to tenancy.
      1. Factors:
        1. reasonable exercise of business judgment
        2. good faith desire to dispose of property free of tenants
        3. good faith desire to make different use of property
        4. lacks financial ability to repair
        5. LL unaware of tenant’s statutorily protected activities
        6. LL did not act at first opportunity
        7. LL act was not discriminatory
    16. Implied Warranty of Habitability
      1. each residential lease is deemed to contain an implied warranty ithat the landlord will deliver the premises in habitable condition and maintain them in that condition during the lease term.
      2. Objective test: Defects are so serious that a reasonable person would find premises uninhabitable. May be defined with reference to housing code or fitness for human habitation.
      3. Not waiveable in most jurisdictions
      4. Remedies: Tenant must notify the landlord of the defect and allow a reasonable time for repairs to be completed.  If the landlord fails to act, the tenant may remain in possession and also:
        1. (1) withhold rent
        2. (2) remain in possession and sue for damages
        3. Terminate lease and sue for damages
        4. (3) repair the defects and deduct the cost from rent due the landlord.  Alternatively, the tenant may terminate the lease and sue for damages. 
        5. Rescission – right to move out before lease ends
        6. rent abatement
        7. injunctive relief or specific performance
        8. Administrative remedies: enforcement by local inspectors
        9. criminal penalties
      5. Commercial leases have no implied warranties unless they state so explicitly
      6. Statutory warranty can often be waived while the common law warranty cannot.
      7. Policy: Arguments for IWH – Urban tenant has no interest in the land, only in the attached building; poor housing is detrimental to society as a whole; unequal bargaining power in LL/T relationship.
      8. Policy: Arguments against IWH – reduces quantity of affordable housing b/c it imposes extra costs on LL which are passed on to T.
    17. Covenant of quiet enjoyment: Implied in every lease that LL impliedly promises not to disturb tenant’s quiet enjoyment of the property.
    18. Transfer of leasehold interest:
      1. Assignment v. sublease: Most states use an objective test in distinguishing between an assignment and a subleaseAssignment: tenant transfers the right of possession for the entire remaining term of the lease; Sublease: part of the remaining term is transferred.
      2. Assignment relationships: Privity of contract continues between the lessor and the assignor; privity of contract is created between the assignor and the assignee; and privity of estate arises as a matter of law between the lessor and the assignee.
      3. Assignment rights and duties: The assignor remains liable to the original lessor for all covenants in the original lease, because they remain in privity of contract, absent a novation.  The privity of estate between the lessor and assignee requires both of them to perform those covenants in the original lease that “run with the land,” and, as a practical matter, most lease covenants do so run.  EX: A leases to B who assigns to C.  If no one pays rent to A, both B and C are liable.: 
      4. Sublease relationships: A sublease creates a new landlord-tenant relationship.  EX: A leases to B, and B leases to C.  Privity of contract and privity of estate remain between A and B; privity of contract and privity of estate arise between B and C.
      5. Sublease rights and duties: The sublessor remains liable to the original lessor for all covenants in the original lease.  Similarly, the sublessee is liable to the sublessor for the covenants in the sublease.  However, the sublessee has no obligations to the original lessor or to covenants in the original lease. Exceptions:
        1. If lessee’s covenants in original lease bind successors as equitable servitudes.
        2. Third party beneficiary theory (L could be 3rd party bene)
      6. Right to sublease/assign: Some leases allow lessor to approve or deny in their sole discretion. Others require the landlord to act reasonably in deciding whether to grant or deny consent. If the lease is silent on the standard for granting consent traditional rule is sole discretion standard; modern rule is to require landlord to act reasonably. (commercially reasonable). (Factors include financial responsibility, nature of new used proposed, sustainability of proposed use, legality of use, etc…)
      7. Privity of contract: relationship between 2 parties who enter into a contract
      8. Privity of estate: relationship between two parties to the conveyance of an estate in land.
    19. Assignment:
        1. Assignor/assignee: PC
        2. Lessor/lessee: PC; PE is transferred to assignee
        3. Lessor/assignee: PE
      1. Sublease:
        1. A/B: PC, PE
        2. B/C: PC/PE (new LL/T relationship created)
        3. A/C: None. No PE b/c B did not transfer his entire interest to C.
    20. Termination of the tenancy:
      1. Surrender: express surrender arises when the landlord and the tenant mutually agree to terminate the lease. S of F usually applies – if lease had to be in writing, surrender does too.
      2. Abandonment: occurs when the tenant (1) vacates the premises without justification, (2) lacks the present intent to return, and (3) defaults in the payment of rent. Courts consider T’s statements, property left behind, and duration of absence.
      3. Landlord rights when tenant abandons: CL: (1) leave the premises vacant and sue later for accrued rent; (2) mitigate damages by reletting the premises to a new tenant and then sue the original tenant for the unpaid balance; or (3) terminate the lease; Modern Rule: most jurisdictions require that the landlord either mitigate damages or terminate the lease.
        1. Acceleration clause: If T abandons, all rents are immediately due and payable. 
      4. Policy in favor of mitigation: focus on waste of housing resources; LL more familiar w/reletting premises.
      5. Policy against mitigating: If lease is viewed as a conveyance LL need not be concerned with weather T uses premises; “lost sale” rule.
      6. Restrictions on LL right to terminate:
        1. Discriminatory reasons
        2. retaliatory eviction
      7. Summary eviction proceedings: a special, expedited proceeding to recover possession from the breaching tenant, usually called summary eviction or unlawful detainer.  Short deadlines and simplified procedures.
    1. Purchase of title: Technically, a buyer is purchasing title to the land, not the land itself.  If the contract is silent on the issue of quality of title, the law fills the gap with an implied covenant that the seller must deliver marketable title. Title is unmarketable if the seller does not own the estate he purports to be selling or if his title is subject to any lien, easement, or other encumbrance. 
    2. Financing: contract should contain express provision that buye is not obligated to buy if he cannot obtain financing.
    3. Closing transactions: seller’s obligation to deliver the deed and the buyer’s obligation to pay the purchase price are deemed concurrent conditions –  until one party performs the other party is not yet obligated to perform and thus  has not breached the contract. 
    4. Remedies for breach:
      1. Specific performance
      2. Damages
    5. Condition of the property:
      1. CL: No duty to disclose latent defects
      2. MT: Seller must disclose latent defects that substantially impair value or desireability.
      3. Broker must disclose known defects
      4. Implied warranty accompanies sale of a new home
      5. Equitable conversion: buyer is deemed to be the equitable owner of the land during the period between formation of the contract and close of escrow. 
        1. EX:  if A contracts to sell her home to B, and the home burns down before escrow closes, B is still obligated to purchase. 
        2. Emerging view that the risk of loss remains with the seller until either possession or title are transferred to the buyer.
  10. TITLE
    1. Purpose of the recording system
      1. protects existing owners from losing their property to later purchasers by providing constructive notice
      2. protects new buyers by allowing them to qualify for bona fide purchaser protection after careful title searching reveals no prior interests.
    2. A purchaser might receive notice:
      1. Actual notice: knowledge of the prior interest
      2. Record notice: constructive notice; would be revealed by an appropriate search of the public records affecting land title.
      3. Inquiry notice: purchaser’s duty to investigate suspicious circumstances.
      4. Imputed notice: arises from special relationship. If one person has actual notice of a fact, the others are deemed to know the fact.
    3. Constructive notice: A recorded document provides constructive notice if it:
      1. meets the formal requirements for recording
      2. contains no technical defects
      3. is recorded in the chain of title
      4. is properly indexed (minority of states)
  11. ZONING
    1. zoning ordinance upheld against substantive due process and equal protection attack unless arbitrary and unreasonable, having no substantial relation to the public health, safety, welfare, or morals 
    2. Nonconforming use: In general, zoning regulates only future development.  Virtually all zoning ordinances allow prior nonconforming use to continue.  A nonconforming use is a use of land that lawfully existed before the zoning ordinance was enacted, but that does not comply with the ordinance.
    3. Vested Rights: owner who obtains a building permit and makes substantial expenditures in good faith reliance on the permit obtains a vested right to the use, regardless of any later change in the zoning.
    4. zoning ordinance may be modified by a zoning amendment adopted by a city council or other local governmental entity.  Traditionally, such an amendment is viewed as legislative action, just like the adoption of the initial zoning ordinance.  Accordingly, it will withstand due process and equal protection attack unless it is clearly arbitrary and unreasonable, having no substantial relation to the public health, safety, morals, or general welfare.
    5. Because of the danger that the zoning amendment process might be abused to favor particular owners, additional restrictions on rezoning. Most jurisdictions will invalidate such an amendment if it constitutes spot zoning: rezoning that confers a special benefit on a small parcel of land regardless of the public interest or the comprehensive plan. 
    6. Variance: authorized deviation from strict enforcement of the zoning ordinance in a particular case due to special hardship. 
      1. Where, owing to special conditions, a literal enforcement of the provisions of the ordinance will result in unnecessary hardship, and the spirit of the ordinance will be observed and substantial justice done.
      2. Courts generally define “hardship” to mean that the owner cannot receive a reasonable return under the existing zoning due to some special characteristic of the property (e.g., irregular lot size) that is not shared by other parcels in the district.
    7. Special Exceptions: use that is authorized by the zoning ordinance if specified conditions are met. 
    8. Goals of zoning: protecting property values, preserving neighborhood character, preventing environmental degradation, enhancing the property tax base, and encouraging economic development. 
    9. Exclusionary Zoning: land-use controls that tend to exclude low-income and minority groups. 
    1. Eminent Domain: Federal, state, and local governments have the inherent power to take private property for public use over the owner’s objection, through a process known as eminent domain. 
    2. Restrictions on ED power:
      1. May take private property only for public use
      2. Must pay just compensation to owner 
    3. Takings Clause of the Fifth Amendment: “Nor Shall Private Property Be Taken For Public Use, Without Just Compensation” Supreme Court has stressed that one of the main purposes of the clause is to bar government from forcing some people to bear public burdens alone which, in all fairness and justice, should be borne by the public as a whole.
      1. Property: Any type of private property may be acquired through eminent domain.  The vast majority of cases involve the condemnation of a fee simple absolute estate in land.
      2. Taking: In the usual eminent domain case, a government entity takes permanent physical possession of a particular parcel of land. 
      3. Public use: whether a public purpose exists is defined by the purpose underlying the government action.  As long as the property is taken for a legitimate public purpose—one within the scope of the police power—the public use requirement is satisfied.
        1. Berman: focus on purpose for gov’t action not identity of future land users (condemnation of non-blighted store in blighted neighborhood)
        2. Midkiff: gov’t does not have to physically use property (property transferred from owner to tenant by ED); rational basis standard – court may only inquire whether decision is rationally related to conceivable public purpose.
        3. Kelo: City an take private property and convey it to private co. as part of an economic development project.
      4. Just compensation: The fair market value of the property when the taking occurs. Reasonably probable future land use may be considered.
      5. Policy: to bar gov’t from forcing some people to bear public burdens which should be borne by public as a whole.
    1. Nuisance/noxious use: regulation of land use under police power not a taking. Police power authorizes gov’t to regulate use of land to protect public health, morals, safety and welfare.
    2. Reciprocity of advantage: reciprocal benefits or advantages of regulation compensate for burdens.
    3. Penn. Coal decision: A regulation could be a taking if it went too far.
    4. Current takings test: others have been superseded.
      1. Ad hoc: multi factor balancing test: Economic impact of the regulation on the claimant; extent to which the regulation has interfered with distinct, investment-back expectations; and character of the governmental action.
      2. Special Rule for Permanent Physical Occupations: any permanent physical occupation authorized by government is a taking regardless of the public interests that it may serve or the economic impact on the owner.  Any permanent physical occupation effectively destroys all of the owner’s basic property rights. 
      3. Special Rule for Loss of All Economically Beneficial or Productive Use:  A regulation that denies the landowner all economically beneficial or productive use of his land is a taking unless the regulation is justified by background principles of the state’s law of property and nuisance.   
      4. Special Rule for Exactions: The Nollan-Dolan DuoAn exaction is a government requirement that a land developer provide specified land, improvements, payments, or other benefits to the public to help offset the impacts of the project.  An exaction must meet two tests:
      5. there must be an “essential nexus” between the exaction and a legitimate state interest that it serves; and
      6. the exaction must be “roughly proportional” to the nature and extent of the project’s impact.
    5. Remedies for Regulatory Takings:
      1. compensatory damages. 
      2. If the taking is permanent, the owner receives the fair market value of the property on the date of the taking.
      3. if the taking is temporary, the measure of damages is the fair market value of the use of the property during the takings period.
      4. Per se takings:
        1. govt mandated permanent physical invasions of property
        2. regulations that completely deprive an owner of all economically viable use of her property unless background principles of nuisance and property law independently restrict owner’s intended use of property.
    6. Policy:  land use regulation may so restrict an owner’s rights as to become a taking—thus requiring the payment of compensation—even though government does not physically occupy the land. 
  14. Intellectual Property
    1. Copyrights: Federal copyright law protects rights in original books, articles, songs, paintings, and related artistic creations that are original and “fixed” in tangible, physical form.  New works receive copyright protection for the author’s life, plus 70 years after her death.  However, there are a number of exceptions to the scope of copyright protection.
    2. Patents: Exclusive property rights in certain types of inventions may be secured under a federal patent.  A person who invents or discovers any new and useful process, machine, or other invention and meets other statutory requirements can receive a patent which is effective for 20 years from the application date.
    3. Trademarks: A trademark is a word, name, symbol, or device used to identify and distinguish the products of a particular manufacturer or retailer.  Statutory trademark protection is obtained by registering the mark with a federal agency and using the mark in interstate commerce.
    4. Rights of Publicity: In most jurisdictions, a celebrity has a property right to the exclusive use of his name and likeness for financial gain. 



Written by freelawschooloutlines

October 4, 2009 at 10:46 pm

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