Embed Size (px)
Citation preview
Foundations of Property Law
Where Do Property Rights Come From? Rights Theorists
o Natural Rights Theorists There is extra-human source for law
o Labor-Desert Theorists (Locke) Mixing labor with property gives you rights
o Individual Autonomy Theory (Hegel) Rights are necessary for our ability to be
autonomous individuals Legal Realists (Cohen)
o Shaped view of property todayo Property rights come from, and are enforced by, the
state
Tensions in Property Right to exclude v. Right of access Privilege to use v. Security from harm
o Use limited by environmental laws, etc Power to transfer v. Power of ownership
o How far into future can you control property? Immunity from loss v. Power to Acquire
o Not immunized from loss, except for eminent domain
Normative Approaches Realists
o Morals and law separate and distinct Rights theorists
o There is moral component to law Utilitarians
o Only look at social consequences Social Relations theorists
o Relationships among people are what matter
Rights in Personal PropertyConquest and
Distribution by Sovereign
Doctrine of Discovery Colonial power that first discovers land has exclusive title This is a legal realist view All land transfers to sovereign
Property Rights in Wild
Animals/Objects
Capture Rule Property rights in wild animals are obtained only through
physical possession (capture or kill) – “occupancy” Possession/Capture
o Majority – actual capture required. Actually kill/capture and immediately take
possession Mortal wounding and not abandoning
pursuit may be enougho Minority – Reasonable prospect of capture enough.o Custom may help define what capture is
Release or Escape After Captureo Usually ownership rights end when wild animal
escapes or releasedo UNLESS
far from native habitat, OR tamed before release/capture
Rights of Landowners Don’t own wild animals on land EXCEPT
o Immobile animals like clams, trees Can exclude hunters from land
Capture Rule – For Inanimate Object [Hayashi] Pre-possessory interest
o When you undertake significant but incomplete steps to achieve possession, but are interrupted by unlawful acts
Possession requireso Physical control, ando Intent to control or exclude from others
If neither party is wrongdoer, both have equal and undivided interest in object
Finders of Personal Property
Who is a “Finder”? First person to take possession of lost or unclaimed property Possession requires
o intent to control property (or exclude from others), AND
o act of control
Categories (based on presumed intent of original owner) Abandoned property
o Owner intentionally and voluntarily relinquished right, title, interest
Lost propertyo Owner unintentionally and involuntarily parts though
neglect or inadvertence, and doesn’t know where it is.
Mislaid propertyo Owner voluntarily puts in a particular place, intending
to retain ownership, but fails to reclaim it or forgets where it is.
Rights of Finder Against: Original Owner
o Lost/Mislaid Property Owner retains title
o Abandoned Property Finder acquires title
Third Persons Generallyo Lost/Mislaid Property
Finder’s title superioro Abandoned Property
1
Finder acquires title Landowner
o Private Land Within house or embedded
Landowner’s title superior Otherwise
Unclear – Could go either way Status of Finder
Trespassero Finder doesn’t have
right to make claim to found property
o Public Land Object usually considered mislaid Owner/occupant prevails
Intellectual Property
Rights in News Traditional
o Knowledge, truths, conceptions, ideas become free to use after voluntary communication to others
INS v. AP (Labor and Investment)o Those who acquire news through investment of labor,
skill, money have temporary quasi-property right in news (against competitor) so long as news retains commercial value
o Law of Capture/First Possession One who develops the news first
(compiled in a way as to distribute for profit) has quasi-property interest
Subject to: Can’t actually own the news Only property interest against
competitors – “relativity of title”
Trademark Not constitutionally rooted; comes from common law
o And Lanham Trademark Act Looking for fanciful, arbitrary, or
suggestive mark Trying to create a secondary meaning of
the mark Definition
o Name, symbol, or type of packaging that identifies the producer of a good or service
o Color can be trademarked in connection with a particular type of product
Requirementso Distinctivenesso Non-functionalityo First use in trade
Gives holder exclusive rights in that mark for purposes of using that mark in the economy/commerce
o Usually limited locally
Time limito None
When trying to find infringemento Is there consumer confusion about origin of product?o Tarnishmento Blurring
Distinctive marks start to lose association with company
Copyright Constitutionally rooted, governed by federal statutes Requirements
o Covers original works Facts are not copyrightable, but the way
facts are compiled and arranged can beo Of authorship
Must be able to identify authoro That are embodied in a tangible medium of
expression Idea-Expression dichotomy
o Ideas are NOT copyrightableo But expression of those ideas CAN be
Term of protectiono Life of author + 70 yearso UNLESS work for hire
95 years from first publication or 120 years from creation, whichever is less
Limitso Fair use – allows reasonable use without owner’s
consent Purpose and character of use
Commercial weighs against fair use
Transformative weighs for fair use
Nature of copyrighted work Original works afforded more
protection than derivative/compilations
Amount and substantiality of portion used in relation to copyrighted work as whole
Effect of use on the potential market for copyrighted work
Goalso Promotion of learningo Protection of public domaino Exclusive rights of author
Patent Constitutionally rooted Grants monopoly rights over inventions
o Processeso Machines
2
o Compositions of Matter Term of protection
o Up to 20 years Requirements
o Subject matter must be patentableo Novelo Non-obviouso Useful
Publicity Rights Actor, politician, or other famous person has property right to
the exclusive use of his name and likeness for financial gain Comes from common law Survives death of owner Does not have to be commercially exploited by the owner Mere imitation may be actionable if done such that it leads
people to think they are endorsing the producto See Lanham Act
Cultural Property
Definition Tangible resources bearing a distinct relationship to a particular
cultural heritage or identityo (Modern) starting to include intangible properties as
well
Source of Law Hague convention
o Cultural Internationalism UNESCO 1970
o Cultural nationalism UNESCO 2003
o Extension to intangible objects UN Declaration on Rights of Indigenous Peoples US Statutes (Acts)
Tensions Repatriation v. Preservation Most of the time, repatriation is effectuated through politics, not
law Humans as artifacts Land as cultural property
o Tied to religiono Tied to identity
Property Rights in Body Parts
Rights in Body Parts Generally Replenishable parts can be
o transferredo usedo excluded from others’ possession
Non-replenishable or dangerous to remove partso Usually can’t be sold
Person has decision-making control over cells before removalo After removal, no longer person’s property
Rights in Human Eggs, Sperm, Embryos Genetic Material
o Treating as property This is usually the case Men can sell sperm Women can sell eggs NOTE: sometimes courts may not do this
to get an equitable result [Hecht]o Treating as lifeo Middle status of special respect
Estates and Future InterestsPresent Estates List
Fee simple absolute Fee simple determinable Fee simple subject to condition subsequent Fee simple subject to executory limitation Life estate/Determinable/SEL
o Absoluteo Defeasible
Fee tail Tenancy for Years/SEL
Fee Simple Absolute Characteristics
o Duration is potentially infiniteo No future interest
Creationo Common Law
Not default estate “O to A and his heirs”
o Modern Default estate “O to A”
Rights/Dutieso Entitled to use estate forevero Entitled to sole possessiono May transfer rights
O to A; O to A and heirso “and heirs” just words of limitation
Life Estate/Determinable/Sub. to Ex. Lim. Characteristics
o Duration measured by life of one or more specified people
o Can be pur autre vie (for the length of someone other than grantee)
Creationo Common Law
Default estate “O to A”
o Modern Law
3
Not Default estate “O to A for life; O to A for his lifetime”
Future Interesto In grantor
Reversiono In third person
Remainder Rights/Duties
o Cannot commit waste Voluntary acts
Must maintain condition/use of the property as it was when it was conveyed
Permissive acts (act of omission) Cannot allow deterioration and
reduction in value of property Ameliorative acts
Big improvement on property BUT can’t do this if it changes
character of property in such a way that future estate holder challenges it in litigation
o Can’t be willed (unless per autre vie)o Can be sold or given awayo Can only transfer what she haso Must pay certain costs
Mortgage interest To maintain status quo
Taxes and insurance on property
Tenancy for Years/Sub. to Ex. Lim.o O to A for 20 yearso Future interest (grantor)
o Reversion
Fee Simple Determinable (grantor) Future interest in grantor
o Possibility of reverter Automatic transfer to grantor
o Adverse possession time starts right when present estate ends
Language of time/durationo “so long as”o “while”o “during”o “unless”
Ambiguity results in FSSCS – presumption against forfeitures Rights/Duties
o Cannot commit waste O to A so long as property is used as school
Fee Simple Subject to Condition Subsequent (grantor)
Future interest in grantoro Right of entry
Doesn’t automatically transfer to grantoro Must take some actiono Adverse possession time doesn’t start until ejectment
action Language of event/condition
o “on the condition that”o “but if”o “provided however”o “provided that”o “if”
Ambiguity results in FSSCS – presumption against forfeitures Rights/Duties
o Cannot commit waste O to A on the condition that the property is used as a school
Fee Simple Subject to Executory Limitation (third party) Future interest in third party
o Executory interest Automatic transfer to third party
o Adverse possession time starts right when present estate ends
Language of condition/time/etco Doesn’t have to be too specific
Rights/Dutieso Cannot commit waste
O to A and heirs, as long as property is used as park. Should property cease to be used as park, to C
Fee Tail O to A and the (male) heirs of his body Common Law
o Future interest (grantor) Reversion
o If A tries to sell property Dis-entails the Fee Tail Reversion disappears Buyer has FSA
Todayo Doesn’t really existo (Majority) Just taken to be FSAo (Minority) A gets LE, A’s bloodline gets FSA -
compromise
Hostility Towards Defeasible Estates Mere words of intent/purpose of grantor do not limit granted
estateo e.g. “for the purpose of...”o Just precatory language o If creates too much ambiguity to put in FSSCS or FSD,
then interpreted as FSA!
4
Words of covenant or promise do not limito e.g. “...grantee promises to use land only for
hospital...” Ambiguous terms tend towards absolute estates
Presumption against Forfeitureso If can avoid causing a disruption in ownership of property, should
do so
Restrictions on Transfer: Rule Against Restraints on Alienation Fee Simple (absolute OR defeasible)
o Any total restraint on alienation is null, regardless of form
(Majority) Including consent clauses (Minority/Modern) Consent clauses might
be ok, if reasonable (below) “Repugnant to the fee”
o Partial restraint OK if reasonable Reasonable restraints. Look at:
If unlimited duration If capricious, or has purpose Whether it is given to
charitable entityo More leeway given if
soo Modern/restatement: move towards reasonableness
– look at who’s consent we are seeking Developers who are out of picture, NOT
reasonable HOA/condo restraint OK when
Must act reasonably, AND in form of pre-emptive rights
o FMV transfer to HOA, OR
o HOA must match offers made
Life Estateo Greater restrictions allowed on alienation
Trustso Restrictions generally upheldo BUT modification can be made if intent of trust was
general Cy pres
Goalso Promoting efficiencyo Promoting liberty of land ownerso Promoting equalityo Care about what grantor wants to do with their land
Restriction on Use: Waste Affirmative Waste
o Voluntary acts significantly reduce value of property
Permissive Wasteo Stems from inactiono Failure to repair, resulting in substantial losso Failure to pay property taxes, assessments, mortgage,
and related expenses necessary to preserve estate for future interest owner
Concurrent Ownership
Types of Concurrent Estates Tenancy in Common Joint Tenancy Tenancy by the Entirety
Tenancy in Common Characteristics
o Each co-owner holds undivided, fractional share of entire parcel
o Each entitled to simultaneous possession/enjoyment of whole
o No right of survivorship A dies, A’s heirs/devisees get A’s interest
Creationo Default estate to two or more unmarried people o “to A and B”; “O to A and B as tenants in common”;
“O to A ¼ interest, to B ¾ interest”o Also created when
severance ends joint tenancy divorce ends tenancy by entirety
Transferabilityo No consent requiredo Transfer doesn’t end estateo Co-tenant may freely transfer their interest
Terminationo (also below)o Voluntary contracto Judicial partitiono Restraints on ability to destroy
OK if reasonable
Joint Tenancy Characteristics
o Equal fractions, undivided interesto Each tenant has right of survivorship
When JT dies, his interest is immediately transferred to remaining tenants in equal shares
If all tenants die simultaneously, estate is treated like a tenancy in common
o Was default estate at common law Creation
o Common Law Requires 4 unities
Timeo Acquired title at
5
same time Title
o Acquired title by same instrument
Interesto Equal fractional
interestso And must last the
same amount of time
Possessiono Equal rights to
possession of entire parcel
If 4 unities aren’t met Default to Tenancy in Common
o Must be explicit in creation “...as joint tenant...” “...as joint tenants with right of
survivorship...” Transferability
o Essentially inalienable as joint tenancy Can’t be willed b/c interest ends at death
o No consent requiredo Interest ends at deatho Any conveyance will break unities and sever tenancy
Grantee gets tenancy in common interest But remaining JT’s are still joint tenants (if
more than 1 remain)
Tenancy by the Entirety Characteristics
o A form of joint tenancyo Requires 4 unities, plus valid marriageo Right of survivorshipo Can be terminated only by:
divorce death of spouse agreement of both spouses
o Doesn’t exist in very many jurisdictions anymoreo Can be partitioned only by divorce
Creationo Default estate to married couples
[some states] require explicit intent “...as tenants by the entirety...”
o Five unitieso Conveyance to unmarried people
joint tenancy, OR tenancy in common
Transferabilityo Consent of spouse required
Rights of Creditorso [Majority] Neither spouse owns a separate interest in
property that can be conveyed to, or reached by, creditors
Rights and Duties of Cotenants Right to Possession (w/o interfering with rights of cotenants)
o Co-tenants are not liable to eachother for rent EXCEPT:
Ouster – when co-tenant in possession refuses shared possession of another co-tenant with affirmative act, OR
(sometimes) Constructive ouster – property too small to be physically occupied by all owners, etc.
Ousted tenant entitled to share of fair rental value
Right to Rents and Profitso Each entitled to share of rents received from third
party Only if co-tenant affirms the lease –
thereby waiving their right to possess the property
o Each entitled to share of profits from natural resource exploitation
Can encumber/transfer interest without consento Lessee steps into shoes of lessor, and has exactly
what lessor had Liability for Mortgage and Tax Payments
o Each obligated to pay share of mortgage, tax, assessments, etc that could give rise to lien if unpaid
o EXCEPT if cotenant in sole possession sole possessor can’t recover for these
payments unless they exceed property’s reasonable rental value
Liability for Major Repair and Improvement Costso Cotenant who pays for repairs/improvements not
entitled to contribution from other tenants (unless prior agreement)
Basic Maintenance and Repairo More commonly sharedo (some courts) Impose duty to pay on cotenantso (some courts) Don’t impose duty to pay on cotenants
Liability for Wasteo Cotenant liable for waste for using property
unreasonably if it causes permanent injury
Termination of Concurrent Estates Severance of Joint Tenancy
o Conveyance of Joint Tenant’s Entire Interest Results in Tenancy in Common Modern: Can convey to self as tenant in
common
6
If more than 2 joint tenants, non-conveying tenants remain joint. New tenant is tenant in common.
o Lease/Mortgage Executed by One Joint Tenant Lease
Majority: lease doesn’t sever. But lease ends when lessor cotenant dies.
o b/c there’s no more interest for lease to attach to since lessor’s interest dies at death
Minority: lease does sever JT. Mortgage
Traditional (mortgage transfers legal to mortgagee)
o Severs Modern (mortgage creates a
lien)o No severance
o Agreement Between Joint Tenants May be severed by agreement of all
cotenants Partition
o Any cotenant (joint or common) can seek judicial partition which ends cotenancy
o Partition in kind Physical division
o Partition by sale Property sold and proceeds divided by
share
Future Interests Held by Grantor
Three Types Reversion/SEL
o LE, Tenancy for years, fee tail, contingent remainderso Automatic
Possibility of Revertero FSDo Automatic
Right of Entryo FSSCSo Not Automatico No time limit to assert, BUT
Subject to Laches, so can’t wait too long to assert entry rights
Transfer of Interest Reversion
o Freely transferrable POR, ROE
o Common law
Only transferable through intestate succession
o Modern Freely transferable
NOTE: transfer doesn’t change name of interest
Right to Prevent Waste Reversion
o Reversion holder may get damages for past waste by present estate holder, and enjoin future waste
POR, ROEo Can only enjoin actions that prudent owner of FSA
would not have performed
Future Interests Held by Third
Party
Two Types Remainder
o Vested Absolute/LE/TY Subject to Total Divestment Subject to Open (Subject to Partial
Divestment)o Contingent/LE/TY
Executory Interesto Springing/LE/TYo Shifting
Remainder Remainder and prior estate must be created by same instrument Waits patiently for prior estate to naturally terminate Can only follow: LE, FT, Term of Years Cannot have time gap btw end of prior estate and when
remainder becomes possessory Types
o Vested VRA/LE/TY
Identity of remainderman is certain at time of conveyance
Not subject to any condition/limitation for vesting, or has already been met
O to A for life, then to B VRSTD
Identity of remainderman is certain at time of conveyance
Certain to become possessory unless some specified event occurs
Condition for vesting has been met at time of conveyance
O to A for life, then to B. But if B doesn’t graduate law school, to C
VRSPD VR in one or more ascertainable
7
members of a class that may be enlarged by addition of presently unascertainable persons
Identity of holder is certain, and certain to become possessory
Size of interest holder’s share uncertain
O to A for life, then to B’s children
o At this time, B has one child
o Unborn children have executory interest
o Contingent/LE/TY Either:
subject to condition precedent, OR
created in an unascertainable person
O to A for life, then to first child of B (B has no child at time of conveyance)
O to A for life, then to B’s first child to reach 18 (B has no child that’s 18 at time of conveyance)
Executory Interest Future interest that cuts short another estate or interest Also when gap in seisin
o When estate goes back to O before it goes to other third party
Typeso Shifting
Divests another grantee O to A as long as property is used as
school. Otherwise to B. O to A for life, then to B’s children (B has
Connie at time of conveyance)o Springing/LE/TY
Divests the grantor, following a gap in time where no other grantee has right to possession
O to A for life, then 1 year following A’s death, to B
O to A upon A’s marriage
Right to Prevent Waste Vested
o Compensatory damageso Injunction
Contingento Injunction
Executory Interesto Very rare injunction
Class Gifts and Rule of Convenienceo Rule of Convenience
o A class has to close at the conclusion of the prior estate
o O to A for life, then to B’s children (X alive at time of conveyance)
The “children” class closes at A’s deatho Also, gives a person their whole life to meet a
condition
NOTE: Future interest labeling doesn’t take into account parties’ fertility
Rules Affecting Transfer of Property
Doctrine of Worthier Title Traditional
o If grantor conveys to one party, ando by same instrument conveys the following
remainder/executory interest to grantor’s heirs, THEN grantor retains reversion, and heirs receive nothing
Moderno Rule of construction – allows grantor to explain what
they were really trying to doo Tries to effectuate their intent
O to A for life, then to O’s heirs
Rule in Shelley’s Case Traditional
o If conveyance is LE/FT/Tenancy for Years to S, ando Creates contingent remainder in Fee Simple to S’s
heirs, THEN Future interest is extinguished in heirs S has now owns the future interest
o O to A for life, then to A’s heirs
Destructibility of Contingent Remainders Common Law
o CR is destroyed if it fails to vest when preceding estate ends
o O to A for life, then to B when she’s 21 (B is 5 at conveyance, 19 when A dies)
B’s CR is destroyed when A dies because it hadn’t vested yet
Moderno Don’t destroy interesto Let property go back to grantoro Using same example as above, when A dies we have
A = LE B = Springing Ex. Int. O = Reversion SEL
8
Doctrine of Merger If, after conveyance:
o grantee has present interest, ando grantee has future interest, ando no intervening vested interest, THEN
interests are merged into FSA
Presumption Against Creation of New Estateso Must fit an estate into an existing category
Landlord and TenantIntroduction Four Categories of Leasehold Estates
Term of Years Periodic Tenancy Tenancy at will Tenancy at Sufferance
Term of Years Nature
o Last for period of time either fixed in advance, or computed using formula agreed to in
advance Termination
o Automatically expires at end of period No need for any notice
o Can terminate by agreemento LL may terminate if
tenant breaches or other circumstances/triggering events
in leaseo Death of either party DOES NOT terminate
At end of tenancyo LL has reversion, OR future holder has remainder
Periodic Tenancy Nature
o Lasts for initial fixed period of timeo Automatically renews for additional equal period of
time, until termination Termination
o Common Law LL or tenant can terminate with
oral/written notice Notice equal to the period required Notice terminates tenancy on last day of
fixed period, not in the middle So time > period from notice to
termination may happen Death doesn’t end tenancy, but upon
death there usually isn’t renewal
Tenancy at Will Nature
o No fixed durationo Lasts only as long as LL/tenant desireo Can be orally created
Terminationo Common Law
Ends whenever LL/tenant chooses No need for advance notice by either party
Just need to provide notice to terminate immediately
Death of either party ends tenancy o Statutory
Usually requires advance notice
Tenancy at Sufferance (“Holdover Tenant”) Nature
o Arises when person in rightful possession of land wrongfully continues in possession after that right ends
o The tenant does NOT become a trespasser Termination
o No notice or action by LL needed to terminateo LL may evict at any time
Most Common: Holdover Tenanto Tenant who remains in possession of leased land after
lease endso Common law
LL, at his discretion, can evict tenant, or hold tenant to new tenancy
o Length of new tenancy Common law (& modern minority)
Defined by length of original tenancy
New tenancy is renewal of old tenancy
Modern Max term is 1 year Majority
o New tenancy is periodic
o LL’s actions Can expressly notify tenant of choice Can be implied from LL’s conduct and
surrounding circumstances (Majority) LL accepting
payment from tenant for holdover period shows LL’s desire to have new periodic tenancy
o UNLESS maybe LL
9
makes it clear on check that he doesn’t want this
Landlord’s Transfer of Property Does not terminate lease Property is transferred subject to lease
Modern View of Lease: Conveyance, Contract, Both? Trend towards contract Thus, lease imposes continuing duties on both LL and tenant Examples
o LL must maintain habitable conditionso Tenant has no obligation to pay rent if structures
crucial to lease destroyedo Tenant may terminate and stop paying rent if LL
materially breacheso LL obligated to mitigate damages
Courts more tenant-friendly in residential context compared to commercial
Creation of Tenancy
Landlord’s Duty to Deliver Possession Minority
o LL merely needs to deliver right to possession to tenant when lease term begins
Majorityo LL must deliver actual possession to tenant when
term begins (in addition to right to possession)
LL must put any restrictive covenants that exist on the land in the lease
Tenant’s Remedies If property isn’t ready, can
o Say LL has materially breached, and terminate lease Try to get damages
o Affirm the lease, but withhold rent for period can’t get into property
Rights of Landlords
Right to receive rent Premises to be intact and not damaged Reversion
o Right to get property back at end of lease No duty to renew lease Right to evict tenant
o ONLY IF material breach (e.g. non-payment of rent)o Limited by:
anti-discrimination rent control federal housing laws retaliatory eviction
Condition of Leased Premises
Repairs Common law
o If no lease provision on repairs Tenant must make minor repairs
o Lease assigns Repairs to Tenant
o Lease assigns Repairs to Landlord
Constructive Eviction (“Covenant of quiet enjoyment”) Nature
o LL’s wrongful conduct that substantially interferes with tenant’s beneficial use and enjoyment
o Provides tenant with new remedy for LL’s breach of existing duty
o Residential and/or Commercial Elements
o Wrongful Conduct Acts/Omission of LL
Any affirmative act of LL that seriously interferes
Omission wrongful only when there’s a duty to act
Duty can come be implied, express, or statutorily imposed
Conduct of Third Parties Traditional
o LL not responsible for conduct of 3rd parties that interferes with quiet enjoyment, unless LL causes or consents to such conduct
Moderno LL responsible if he
has legal right to control 3rd party conduct (from lease, statute)
o (minority) LL responsible if he’s in a position to control those actions, and if third party is in relationship with LL
o Substantial Interference Definition
Must be so major that reasonable person would conclude dwelling is uninhabitable; or unusable for normal business (commercial)
Factors Seriousness of defect Impact on habitability Length of time of defect LL’s response to tenant’s notice
10
Conduct of tenant Could premises be habitable at
all? Partial Constructive Eviction
Majorityo Tenant who remains
in partial possession can’t claim constructive eviction
Minority (usually commercial)o Tenant need only
vacate the part of the premises that is interfered with
Remedies/Procedureo Terminate lease and sue for damages
Must take three steps first: give LL notice of interference allow reasonable time for LL to
cure vacate premises within
reasonable time This is only way to use this as defense for
non-payment of rento Remain in possession and sue for damages (not sure
about this prong) Affirm lease, remain in possession, sue LL This is for breach of implied covenant of
quiet enjoyment NOT defense to non-payment of rent
Implied Warranty of Habitability Nature
o Assigns burden of repairing residential premises to LL, regardless of provisions in lease
o Usually can’t be waivedo Doesn’t apply to commercial leases at the momento Residential only
Scope/Elementso Elements
Violations existed during entire period rent isn’t paid, AND
Violations made premises uninhabitableo Objective test: defects must be so serious that
reasonable person would find premises uninhabitableo (Minority): use housing codes as yardsticko (Majority): premises must be fit for human habitation,
meet bare living standards, etc Violation of housing code may be taken
into account Procedure
o Tenant must first: Provide LL with notice of defect
Must be specific enough to inform LL of nature of defect
Allow reasonable time for repairs NO NEED TO MOVE OUT
Remedieso Remain in possession and withhold rent
Majority Can withhold all rent Court will later determine
amount of rent to pay backo Remain in possession and use rent abatemento Remain in possession and use “repair and deduct”o Remain in possession and sue for damages/injunction
Measure of damages Difference btw rent and fair
market value Difference btw fair market
value “as warranted” and fair market value “as is”
Percentage diminution in agreed rent
o Terminate lease and sue for damageso Administrative remedieso Criminal penaltieso Compensatory damages
Waivero Majority
Cannot be waivedo Minority
Where warranty comes from statute, may be waived in some circumstances
Transfer of Leasehold
Interest
Tenant’s Transfer Assignment; or Sublease Test to figure out which one
o Majority: All or less than all? If tenant transfers right of possession for
entire remaining term of lease Assignment
If only part of remaining term is transferred
Subleaseo Minority: Intent of parties
If tenant/new tenant wanted to create new LL-tenant relationship
Sublease If they wanted tenant’s existing rights to
transfer to new tenant Assignment
Assignment A = lessor, B = lessee (originally) B = assignor, C = assignee (at time of assignment)
11
At time of lease, A and B are ino Privity of contract, ando Privity of estate
At time of assignmento B and C are in
Privity of contract B or C liable to the other if one
breaches terms of their Ko A and B are in
Privity of contract A or B liable to other if one
breaches lease No Privity of estate
Destroyed b/c B has transferred entire interest
o A and C are in Privity of estate
A and C may sue eachother if original lease is breached
No Privity of Contract Unless C expressly agrees to
assume B’s obligations under lease
Rights and Dutieso Assignee and lessor obligated to perform covenants
of original lease that “run with the land”. Requirements:
Original lease parties intend successors be bound by covenant
Covenant touch and concern land Assignee have notice of covenant before
acquiring interesto A,B,C (as above)
Who is liable if rent not paid to A? Both B and C B liable under privity of K C liable under privity of estate
for breach of rent covenant in original lease
B may sue C to recover for B’s liability to A above
Privity of K C may sue A directly if A breaches
covenants of lease Privity of estate
Successive Assignments Anyone who assumes covenants of lease is liable Original lessor is liable
o Privity of K Final assignee is liable
o Privity of estate
Sublease Two separate landlord/tenant relationships A = lessor, B = lessee (originally) B = sublessor, C = sublessee (at time of sublease) At time of lease, A and B are in
o Privity of contract, ando Privity of estate
At time of subleaseo A and B are in
Privity of K Privity of estate B liable to A if C breaches terms of original
leaseo B and C are in
Defined by terms of sublease (not original lease)
Privity of Ko A and C are in
No privity of K No privity of estate
Rights and Dutieso A,B,C (as above)
Who is liable if rent not paid to A? B B liable under
o privity of K, ando privity of estate
C not obligated to pay rent to Ao Sublessee not obligated to perform any covenant of
original lease, with exceptions: If B’s covenants in original lease bind
successors as equitable servitudes, A can enforce against C
(some courts) allow suit to enforce covenants to pay rent
(some courts) don’t A may sue B under third party beneficiary
theory C may want to avoid B’s breach of lease,
b/c termination of original lease automatically terminates the sublease
Tenant’s Right to Assign or Sublease Tenants free to assign, sublease, or otherwise transfer interests,
absent agreement to contrary. Lease term possibilities
o Lease prohibits transfer Interpreted narrowly, but enforceable Traditional
“No assignment” doesn’t preclude sublease
“No sublease” doesn’t preclude assignment
12
Modern Go off parties’ intent
o Lease allows transfer IF landlord consents Sole Discretion Clause
Gives lessor discretion to approve/deny transfer
Arbitrary consent oko Both commercial
and residential BUT, anti-discrimination laws
limit Reasonableness Clause
Lessor may deny consent only on objective, commercially reasonable basis
Factorso Financial
responsibility of transferee
o Nature of new use proposed
o Suitability of use for premises
o Legality of useo Need for alterations
to premiseso Whether use will
compete with LL’s business or other existing tenants
No Standard Specified: Silent Consent Clause
(Majority) Traditionalo Sole discretion
standard applies (Minority, growing) Modern
ruleo Reasonableness
standard for commercial (commercially reasonable)
o Sole discretion for residential
o Lease Silent No problem of transfer
o Implied Waiver of Consent Requirement
Termination of Tenancy
Surrender Tenant and landlord agree to terminate the lease Tenant surrenders premises L accepts the surrender
Abandonment
Abandonment occurs when tenant:o vacates leased premises without justificationo lacks present intent to return, ando defaults in payment of rent
Rights of Landlord When Tenant Abandons:o Don’t re-rent apartment and hold tenant liable
Common law Tenant liable for entire lease
term Modern
Must try to mitigate damages But LL can still be made whole Universal in residential context
o A little less so in commercial context
o Accept tenant’s surrender LL must mitigate damages Tenant can be sued for
Back rent Compensatory damages from
breacho Re-let on tenant’s account
Tenant still liable for damages through end of original lease
Damages usually difference between rent amount in lease and fair rental value
LL must mitigate Must make clear to tenant you’re not
accepting surrender (some) re-letting is acceptance (some) there’s no presumption (some) must tell tenant that
not accepting surrender
Landlord’s Right to Terminate Lease Periodic Tenancy
o In General Common Law
Can terminate at any time, with notice
Modern Can’t terminate for
discrimination or retaliation Can terminate based on
material breach by tenant Otherwise, free to terminate
with noticeo Retaliatory Eviction
Protects tenants exercise of rights to secure decent housing
Landlord may not retaliate against tenant for protected tenant conduct
Can evict someone for a legitimate
13
business reason NOTE: wanting to remove non-
paying tenant is not legitimate purpose
States have responded with statutes to deal with this problem of never being able to evict
To be brought up as defense Eviction must be related to
activities of tenant incidental to tenancy
Proof Majority: Presumption
o If landlord takes prohibited action within a certain period after tenant engages in protected conduct, presumed to be retaliatory
o Burden shifts to LL to prove action was not retaliatory
Mixed Motivation (3 views) Majority: Retaliation only needs
to be dominant purpose Retaliation must be sole motive Any retaliatory motivation is
enougho (Minority) Good Cause Eviction
LL may evict a periodic tenant only for good cause
Term of Years Tenancyo Landlord want to end lease in middle of term based
on tenant’s breach Common law
Cannot terminate lease due to tenants breach
Only damages available Modern
May terminate if tenant materially breaches
Trivial breaches: only damageso Landlord refuses to renew lease
LL has no obligation to renew a lease
Self-Help Eviction Common Law
o Landlord can evict tenant by forceo But only reasonably necessary force
Modern
o Landlord MUST evict through judicial processo No self-help
Summary Eviction Proceedings Special expedited procedure to recover possession from
breaching tenant
Transfers of Land TitleAdverse
PossessionRequirementsOccupant gets title if possession is:
actualo Majority
Physically use particular parcel as reasonable owner would
Depends on nature, character, location of land, and uses to which it may be devoted
o Exception: Color of title (“constructive possession”) Adverse possessor has claim to land based
on defective document (invalid deed/will) can be invalid b/c of lack of
signature, incorrect description of land boundaries (as long as surveyor can ascertain boundaries with extrinsic evidence on ground), etc
Actual possession of part of land - constructive possession of entire parcel
exclusiveo Possession not shared with true ownero (Majority) Absolute exclusivity not needed: Just as
exclusive as owner’s normal use for such lando (Minority) Absolute exclusivity required
open and notoriouso Acts are so visible that they would put true owner
(objective standard) on notice of your occupation adverse (or hostile) under a claim of right
o Non-permissive useo If true owner silent presumption is not permissiveo (Majority): no state of mind requiremento (Minority 1): only good faith users will get titleo (Minority 2): only bad faith users will get title
and continuouso Only as continuous as reasonable owner
Depends on location, nature, character of land
o Continuity ends when True owner reenters land and takes
possession in open and notorious manner Action of ejectment stops clock
o Tacking Successive periods of adverse possession
14
by different persons can be combined to satisfy statutory duration if:
The successive claimants are in privity with each other
i.e. when one claimant transfers possessory rights to another, usually by purporting to transfer title
for the statutory periodo Common Law
No tollingo Statute
May provide for tolling
Owners and NeighborsNuisance Private Nuisance
o A substantial and unreasonable interference with the use and enjoyment of land
Nontrespassory invasion of another’s interest in private use and enjoyment of land
o Non-physical invasiono NOTE: semi-physical invasions (odor, smoke)
Trend is to allow action under trespass and nuisance
Categorieso Nuisance Per Se
Something always considered a nuisance Usually an activity prohibited by law
o Nuisance Per Accidens Something that’s a nuisance only because
of the surrounding circumstances It is lawful activity otherwise
o Temporary Nuisance Any, non-permanent nuisance.
o Permanent Nuisance Where nuisance is certain or likely to
continue into future due to physical nature of condition, cost of abatement, or other factors
Elements Intentional
o Either acting for purpose of causing harm, oro Knowing that the harm is certain or substantially
certain to result from his conduct, oro (sometimes) reckless conduct, or abnormally
dangerous activities Non-trespassory Unreasonable, and
o Traditional Serious injury to P Multi-factor test
Character of neighborhood Nature of wrongful conduct Proximity to P’s property Frequency, continuity, duration Nature/extent of resulting
injury Utility of D’s conduct
o Restatement Basic test: Balance of utilities
Unreasonable when gravity of harm outweighs utility of actor’s conduct
Gravity of harmo extent of harmo character of harmo social value of P’s
use and enjoymento suitability of use or
enjoyment invaded to character of locality
o burden on P of avoiding harm
Utility of D’s conducto social value of
primary purpose of D’s conduct
o suitability of conduct to character of locality
o Impracticability of preventing/avoiding interference
Substantial interferenceo If normal person living in community would regard
interference as strongly offensive or seriously annoying
With the use and enjoyment of P’s lando Clearly met if D’s conduct causes physical injury to P’s
land tangible personal property located on lando Also if conduct causes substantial harm to persons on
land NOTE: acting in bad faith (spite fences) leads more towards
finding a nuisance
Defenses for Private Nuisance P consented or acquiesced to nuisance Laches D has continued nuisance for sufficient time to acquire
prescriptive easement for conduct Statute of limitations “Coming to the Nuisance”
o P’s coming to the nuisance is not full defense
15
o Usually a factor in determining reasonableness
Remedies Injunction when
o D's conduct is unreasonable (causes more social harm than good) and causes substantial harm to P
Damages, but no injunction, wheno D's conduct is reasonable, but harm to P is substantial
so that it is unfair to burden P with the costs of D's socially useful conduct
No remedy wheno Harm to P is not substantialo D's conduct causes more social good than harm, and
it is not unfair to impose the costs of D's activity on Po The imposition of damages would put D out of
business and avoiding this result (b/c of social value of D's conduct) is more important than preventing harm to P
Purchased injunction ifo D's conduct causes more harm than good; but it is fair
to impose the cost of shutting down D's activity on P e.g. when P comes to the nuisance
Public Nuisanceo Unreasonable interference with a right common to the general
publico Usually, P is gov't entity bringing suit on behalf of publico But private party may bring suit if harmed in kind different from
general public
Light and Airo There’s no general right to free flow of light/air across the land
of a neighbor, as long as the neighbor’s structure is built for a useful and beneficial purpose
o UNLESS there’s some statute or agreement to the contrary
o NOTE: US courts have rejected “Ancient Lights”o Gave right to free flow of light/air (negative
prescriptive easement) if you’ve had it for 20 years
Trespass Right to Excludeo One of most essential sticks in bundle of rights of propertyo Common Law Baseline
o Absolute right of exclusion, UNLESS (Majority) Innkeeper or common carrier
Must have reasonable reason for excluding people
(Minority) Any business open to public Must have reasonable reason
for excluding peopleo NOTE: Limited by anti-discrimination laws
What is Trespass
o Any intentional and unprivileged entry onto land owned or occupied by another
o Mistake is not a defenseo Must merely intend to enter onto land as matter of free choiceo Also liable if causes thing or third person to enter lando Exceptions
o Landowner’s consent Licensee – one who has been invited in Licensor – the one who invites in
o Necessity Requires harm being avoided is greater
than harm caused by trespassingo Emergencyo Public policy
Access to graves
Remedies for Civil Trespasso Damages
o Nominalo Compensatory
To compensate for injuryo Punitive
If D acts maliciously and causes harmo Injunction (equitable relief)o Declaratory judgment
o Court just declares who’s right/wrong
Criminal Trespasso Depends on statuteo Remedies are criminal in nature
Reasonable Accesso Right to exclude is not absolute, but relativeo Law must accommodate between right of property owner and
right of individuals who are parties with him in consensual transactions relating to the use of the property
o Extent to which property has been opened up has to match the access to which property is available
o e.g. if you open land up to migrant workers, you need to allow access for things related to that (medical care, legal aid, services for migrants, etc) [Shack]
Encroachmentso Permanent or continuing trespass caused by construction of
building or other improvement that partially extends onto another’s land
o Traditional View (Minority)o Owner could
obtain injunction forcing trespasser to remove encroachment, or
recover damages from trespassero Modern (Majority) – “Relative Hardship Doctrine”
16
o Good-faith mistake If harm is minimal, interference with true
owner’s property interest is small, costs of removal are substantial, THEN
Usually won’t force removal Just monetary damages
o Intentional encroachment Injunction available, regardless of cost
Good/Bad Faith Improverso Building entire structure/improvements on other’s lando Bad faith action
o Trespasser loses ownership of improvements without compensation
o Good faith mistakeo Some states (Majority)
Landowner on whose property the building is built owns the building
o Other states (Minority) Owner must compensate improver for
enhanced value of land, or Owner must sell land to improver for fair
market value before improvement.
Surface, Subsurface, and Air Space Rights
Subsurface Rights Ownership: How far down?
o Common law Own all soil below land
o Modern Still protect against third party intrusion
Mineral rightso Hard Minerals
Whoever owns the land surface also owns the minerals in place under the surface
NOTE: surface ownership and subsurface mineral rights can be split off
o Fugitive Minerals – Oil, natural gas (two models) Non-ownership theory (Minority)
Surface owner doesn’t own oil under land
Merely has right to “capture” it Actual “capture” provides
ownership Ownership-in-place (Majority)
Surface owner owns all oil in place under surface
o pre-possessory interest and absolute title
Loses ownership if other captures oil first
LIMITATION TO BOTH ABOVE “Correlative Rights Doctrine” -
Surface owner entitled to
reasonable opportunity to extract a just and equitable share of the oil/gas in pool
o legitimateo reasonableo conservation
statuteso can’t be wastefulo (all derive from
negligence)
Rights in Airspace: How High? Common law
o Ownership extends to the heavens Modern
o Owns air space reasonably necessary for use or enjoyment of the property
Land Use Controls – PrivateEasements Definitions
Non-possessory right to use land in the possession of another. Interest in land, not just contract right Burdens land possessed by another Dominant estate
o Land benefited by easement Dominant owner
o Possessor of dominant estate Servient estate
o Land burdened by easement Servient owner
o Possessor of servient estate Types
o Affirmative Authorizes holder to do particular act on
servient land Most are affirmative
o Negative Authorizes dominant owner to prevent
servient owner from doing act on servient land
o Appurtenant (intent of parties determines) Benefits easement holder in using
dominant estate Attached to dominant estate, not
particular owner Requires
Dominant estate, AND Servient estate
Preferred to In Gross o In Gross (intent of parties determines)
Benefits easement holder in personal sense
17
Attached to holder, not land No dominant estate exists, only servient
estate Presumed to be appurtenant
Five Categories1. Express Easements2. Easements Implied from Prior Existing Use3. Easements by Necessity4. Prescriptive Easements5. Easements by Estoppel
Express Easemento Nature
o Voluntarily created in deed, will, or other written instrument
o Creationo Be in writingo Identify the grantor and granteeo Contain words manifesting intention to create
easemento Describe affected land, ando Be signed by grantor
Easements Implied from Prior Existing Useo Nature
o Intent of easement inferred from existing useo Won’t arise if express intent to contraryo If it’s the grantor reserving an easement
Higher burden because of higher knowledge – should have put it in deed
o Creationo Severance of title to land held in common ownership
At least 1 parcel to new owner, at least one retained by original owner
o Existing, apparent, continuous use when severance occurs, and
Must use one parcel for benefit of other parcel
Apparent – visible, or discoverable through reasonable inspection
Sufficiently continuous so parties reasonably expect use will continue after severance – notice
THIS IS A NOTICE REQUIREMENT ESSENTIALLY
Constructive Inquiry, or Actual
o Reasonable necessity for use at time of severance Convenient or beneficial to use and
enjoyment of dominant estate. Doesn’t
need to be absolutely necessary.
Easements by Necessityo Nature
o Requires high degree of necessity, but no prior useo Usually landlocked parcelso Only endures for so long as necessity itselfo NOTE: CAN LIE DORMANTo NOTE: Giving legal effect to parties’ intent
So if there’s evidence that parties intended to buy/sell landlocked parcel, law will not imply an easement by necessity
o Creationo Severance of title to land held in common ownership,
and Ownership of tract, followed by
conveyance of part of tract to new ownero Strict necessity for easement at time of severance
Traditional Absolute necessity – landlocked
Minority Reasonable necessity –
convenient or beneficial to normal use/enjoyment of dominant land
Prescriptive Easementso Nature
o “adverse possession easement”o “taking” and “tolling” apply here as wello No negative prescriptive easementso Usually only for appurtenant easements
o Creationo Actual use
Just need reasonable outlines of easement with reasonable certainty
Consistent with pattern of use throughout prescriptive period
o Open and notorious use Sufficiently visible/apparent that diligent
owner who was present on land at the time would be able to discover it
o Adverse and under a claim of right, and Majority – objective test
Use land as reasonable owner would, without permission from servient owner
Intent irrelevant Minority – subjective test
Must have good faith belief that entitled to use land
Presumption
18
Majorityo Use is adverse
Minorityo Use is permissive
o Continuous and uninterrupted for statutory period Continuous
Only as frequent as is appropriate given nature of easement and character of land
Uninterrupted If owner stops use even for
brief moment, continuity ends Statutory period
Usually same as adverse possession
Can be different (shorter)o Acquiescence
Disregard
Easements by Estoppel (Irrevocable license)o Nature
o An irrevocable licenseo Licensee expending substantial money/labor in
reasonable relianceo Only lasts as long as needed for licensee to recover
value of investmento Owner never intended to give an easement, but
because of circumstances, court grants easemento Creation
o License, typically for access purposes Express or implied
o Licensee’s expenditure of substantial money or labor in good faith reliance, and
Must be reasonable Licensor created impression
license would not be revoked, or
Reasonable licensee would construe situation that way
o Licensor’s knowledge or reasonable expectation that reliance will occur
Scope – Kind, Unreasonable Burden, Subdivisiono Manner, Frequency, Intensity of Use of Easement (Kind,
Unreasonable Burden, Subdivision)o Scope may evolved over time; turns on intent of
original partieso Intent factors
Circumstances surrounding creating of easement
Whether express, implied, or prescriptive Purpose of easement
o Presumption
Express/implied easement (Majority) Easement holder can
do anything reasonably necessary for full enjoyment of easement
o Thus, reasonable changes in manner, freq, intensity to accommodate normal development of dominant land are permitted
(Minority) Limits use to specific purpose contemplated when easement was entered into
BUT, can’t impose unreasonable burden on servient land
Subdivisiono When dominant
land subdivided, every lot owner entitled to use any easement appurtenant to dominant land.
o BUT, no unreasonable burden on servient land
Servient owner may impose reasonable restraints on easement to avoid greater burden on own land than originally contemplated, as long as restraint doesn’t unreasonably interfere with dominant owner’s use
Prescriptive Reluctant to permit expansion Little connection to party intent
o Use of Easement to Benefit Land Other than Dominant Lando Traditional
Not allowed Normally, injunction
Though damages are also available
o Modern Not allowed, but instead of injunction,
award very small damages Essentially gets around rule, if equitable
o Change in Location/Dimension of Easement
19
o Traditional Only if servient, dominant owners agree
o Modern (Restatement) Servient owner may make reasonable
changes if necessary for normal use/development of property
So long as easement holder not prejudiced
Divisibility (appurtenant)/ Apportionability (in gross)o Appurtenant
o Can be dividedo All parties that get part of dominant estate can use
easemento EXCEPT for unreasonable burden
o In Grosso Can be apportioned IF
Exclusive of the land owner/grantor, and (usually needs to be) commercial
o (Restatement) Can be apportioned IF Not contrary to intent of parties who
created easement, and Doesn’t unreasonably burden servient
estate
Transfer of Easements/“Running with land”o Appurtenant
o Benefit (“Running with land” – presumed to be) Writing that conveys intent of parties Intent of parties that benefit will run with
lando Burden (“Running with land” – presumed to be)
Express Writing Intent Notice to new servient estate
ownero Actualo Inquiryo Constructive
Implied Intent Reasonably necessary for
enjoyment of dominant estateo In Gross
o Benefit (“Transfer”) Traditional
Not transferrable Modern
Commercialo Freely transferrable
Non-commercialo Usually not
transferrable Restatement
Freely transferrable UNLESS parties should not
reasonably have expected this result
o Burden (“Running with land”) Express
Writing Intent Notice
Implied Intent Reasonably necessary for
enjoyment of dominant estate
Terminationo Express limitation
o e.g. limited in timeo Easement holder voluntarily releases rights to servient ownero One owner acquires both servient and dominant estates
o Extinguished – Doctrine of Mergero Eminent Domaino Estoppelo Servient land conveyed to purchaser without notice
o Express easements onlyo Abandonment
o Found if holder Stops using easement for long period, and Takes other action clearly manifesting
intent to relinquish easemento Misuse
o Extinguishes easement when injunctive relief is wholly ineffective
o Prescriptiono Servient owner may prescriptively terminate an
easemento Same elements as prescriptive easement, EXCEPT
Servient owners conduct must also substantially interfere with holder’s use of the easement
o Frustration of Purposeo Easement no longer has use it was intended to have
o Marketable title actso Law requiring re-recording of easementso If re-recording doesn’t occur, then easement is
terminatedo (Restatement) Changed Conditions
o Impossible as practical matter to accomplish the easement’s purpose
o Can be modified, or terminated (if modification is not practicable)
20
Real Covenants Definitiono Promise concerning the use of land that
o benefits and burdens the original parties to the promise and also their successors, and
o is enforceable in an action for damageso Can be affirmative or negativeo Burden
o Promisor’s (or successor’s) duty to perform the promise
o Benefito Promisee’s (or successor’s) right to enforce the
promiseo Presumption that it runs with the land
Original Promisee v. Promisor’s Successor: Does Burden Run?o Must be in writing
o Must satisfy SOFo UNLESS standard exception to SOF can be proven
(estoppel or part performance)o Original parties must intent to bind successors
o Express words “assigns” or “successors”
o Inferred from Nature of restriction Situation of parties Other circumstances surrounding
covenanto Presumption
Most courts presume restrictive covenants intended to run with land
o Covenant must touch and concern lando Burden on use of propertyo Including non-competeo There is a move towards reasonableness
Parties’ intent Interferes with public policy Changed circumstances make covenant
unreasonable Unreasonable restraint on trade Whether covenant had impact on
considerations exchanged when covenant was originally executed
o NOTE: burden does NOT run if benefit is In Grosso Horizontal privity
o Look only at original parties to covenanto Need instantaneous privity
When restriction on land happens at same time as conveyance of interest
o Vertical privityo Look at relationship between original party and
successorso Need strict vertical privity
Entire interest in property is conveyed to successor
o (Restatement) Relaxed vertical privity is enougho Successor must have notice of covenant
o Actual noticeo Constructive notice, or
Covenant is in chain of title; restriction was recorded
o Inquiry notice Circumstances such that you should look
into situation further
Promisee’s Successor v. Original Promisor: Does Benefit Run? Covenant must be in writing Original parties must intend to benefit successors Benefit of covenant must touch and concern land
o Increase market value, oro Increase use and enjoyment, oro Just benefit the dominant estate somehowo There is a move towards reasonableness
Vertical privity must be presento Need strict privityo (Restatement) Relaxed vertical privity is enough
Promisee’s Successor v. Promisor’s Successor: Do the Burden and Benefit Both Run?
Just apply separate benefit/burden analysis If both run, then covenant is enforceable NOTE: burden does NOT run if benefit is In Gross
Rule Against Benefits In Grosso When you have no interest in land, you have no interest upon
which to sueo (Restatement) EXCEPT if you can show a legitimate
interest in doing so You were an intended beneficiary of the
covenant, or You leased the property, and thus relaxed
vertical privity is enough
Termination Express limited time covenant Benefit-holder agrees to release rights Eminent domain, or other gov't action One party acquires ownership of all land burdened/benefited by
covenant Anti-discrimination protections (see servitudes below for more
info) Abandonment
o Conduct of benefiter demonstrates intent to relinquish rights
Changed conditions
21
o Conditions in area of burdened land change so much that intended benefits of covenant cannot be realized
o Don’t need to look at entire restricted area, just a portion thereof
o High bar Relative Hardship Doctrine (Undue Hardship)
o Won’t be enforced if harm caused to servient estate by enforcement will be greater by a considerable magnitude than benefit to the owner(s) of the dominant estate(s)
o Typically need severe harm Acquiescence
o Someone who has tolerated previous violations of the covenant by the owner of the servient estate.
Unclean Handso Bars P who has violated a promise from seeking to
enforce it in equity against another party. Estoppel
o Person manifests intention not to enforce covenant, and D reasonably relies on this to his detriment, estoppel prevents person from enforcing covenant.
Lacheso When P’s unreasonable delay in enforcing promise
causes substantial prejudice to D Marketable Title Acts Merger
o Burdened and benefited estates come under common ownership
Prescriptiono Open and notorious violation of covenant without
permission for statutory period
Remedies Traditionally
o Compensatory damages Modern
o Compensatory damages (by enforcing as real covenant)
o Injunction and past damages (by enforcing as equitable servitude)
Equitable Servitudes
Definition Promise concerning use of land that
o benefits and burdens the original parties to the promise and their successors, and
o is enforceable in equity Difference from Real Covenant
o Easier standard to meeto More defenses availableo Traditional remedy is injunction
o Presumption that it runs with the land
Original Promisee v. Promisor’s Successor: Does Burden Run?
Promise must be in writing or implied from a “common plan”o Writing that satisfied SOF
Original parties must intend to bind successors Promise must “touch and concern” land, and
o Traditional Burden doesn’t run unless benefit is
appurtenanto Modern
Split Successor must have notice of the promise
o Actualo Constructive, oro Inquiry
Promisee’s Successor v. Original Promisor: Does Benefit Run? Promise must be in writing or implied from a “common plan” Original parties must intend to benefit successors Promise must “touch and concern” land
Promisee’s Successor v. Promisor’s Successor: Do Burden and Benefit Both Run?
Just do both benefit/burden analyses
Subdivisions Problem: Implied Reciprocal Negative Servitudeso Elements
o Common plan or scheme. Factors: Presence of restrictions in all or most
deeds to property in area Recorded plat/declaration showing
restrictions Presence of restrictions in last deed sold
by developer Observance of owners of similar
development of their land and conformity to written restrictions
Language stating covenants are intended to run with land
Recording of declaration stating covenants are intended to be mutually enforceable
Allows enforcement of restrictions by neighbors against eachother
NOTE: It’s OK to have IRNS in PART of housing development in similarly situated lots
o Notice of buyer Constructive
Recorded declaration or plat prior to purchase, OR
Recorded deed with restrictions prior to purchase, OR
(In most jurisdictions) Common grantor at same time/area
22
conveyed restricted lots with something in their chain of title
Inquiry (Some jurisdictions) Uniform
pattern of development that suggests existence of common plan
Actual If notice is oral, parol evidence
may prevent it from being let into court
o Who Can Sue to Enforce o Other ownerso HOA
Exception to rule against benefits in gross b/c they represent
homeowners CAN sue if authority given in declaration
o Developer If no land
Can’t sue (violated benefits in gross)
o EVEN if put in declaration
(Restatement) Can sue ifo Authority in
declaration, ANDo Homeowners can
take right away, AND
o Shows legitimate business interest
If still has land (Majority) Can sue (Minority) Can sue, BUT also
needs authority in declarationo NOTE: courts more
amenable to this if homeowners are able to vote-away this authority
o Remedieso Monetary and/or injunction
Termination Anti-discrimination protections
o Divesting someone of title Enough “state action” to be
unconstitutionalo Allowing language of trust/covenant do its own work
May not be enough “state action” to be unconstitutional
o Fair Housing Act prohibits discrimination based on
race, color, religion, sex, national origin, familial status, handicap
o “Single family residence” Covenants Many jurisdictions don’t enforce against
group homeso “Cy pres” Doctrine
If the intent of a trust is general, and the purpose of the trust can still be effectuated, then trust can be reformed and modified
If the intent was specific and can’t be effectuated, then cy pres can’t be used to reform trust, and it fails
Changed conditionso Conditions changed so much that intended benefits of
restriction cannot be obtained in a substantial degree.o Don’t need to look at entire restricted area, just a
portion thereofo High bar
Release Abandonment Merger Eminent Domain Acquiescence
o Someone who has tolerated previous violations of the covenant by the owner of the servient estate.
Estoppelo Person manifests intention not to enforce covenant,
and D reasonably relies on this to his detriment, estoppel prevents person from enforcing covenant.
Lacheso When P’s unreasonable delay in enforcing promise
causes substantial prejudice to D Relative Hardship (Undue Hardship)
o Covenant won't be enforced if harm to servient estate caused by enforcement will be greater by a considerable magnitude than benefit to the owner(s) of the dominant estate(s)
o Typically need severe harm to the servient estate Unclean Hands
o Bars P who has violated a promise from seeking to enforce it in equity against another party.
Marketable Title Acts Merger
o Burdened and benefited estates come under common ownership
Prescriptiono Open and notorious violation of covenant without
permission for statutory period
Remedies Injunction No damages
23
Interpretation of Ambiguous
Covenants
o When there’s ambiguity or substantial doubt as to meaning, restrictive covenants will be read narrowly in favor of free use of property
o Still, main way is intent of grantor
Land Use Controls – PublicModern Zoning Controversies
Exclusionary Zoning Land-use controls that tend to exclude low-income and minority
groups Due to zoning, cost of housing becomes so high that low-income
residents are priced out [Minority]
o Almost every local gov't obligated to meet fair share of regional need for low/moderate income housing
o Applies to “growth areas” or “developing municipalities”
Land Use Regulation and Takings Clause
Generally Prevents gov't from:
o Taking private property Including easements, intellectual property
o For public useo Without just compensation
Purpose of takings clause of 5th amendmento To bar gov't from forcing some to bear public burdens
which should be borne by public as whole (fairness and justice)
Core variableso Economic impact of gov't action on ownero Nature of public interest underlying gov't actiono Whether gov't action involves physical intrusion or
just regulation NOTE: regulation NOT taking just b/c of reduced market value
Modern Tests – Taking Eminent Domain
o Clearly takingo e.g. taking property to build a road
Police Powero Clearly not takingo States have authority to pass regulations to protect
health, welfare, safety of citizenso State has power to prevent nuisanceso Choosing to protect a larger industry (apples) at
expense of smaller industry (cedar) is OK [Miller]
Ad hoc test (for anything not per se) [Penn Central]o Each takings case decided by factor balancing
economic impact of regulation on claimant Even significant diminution in
value NOT taking if regulation reasonably related to
promotion of general welfare extent regulation interferes with
claimant’s investment-backed expectations
character of gov't action Physical invasion more likely to
be taking than benefit-conferring regulation
o NOTE: Takings criteria applied to parcel as whole Bright Line Rules (per se takings)
o Taking will be found: If gov't authorizes permanent physical
occupation of land [Loretto] No matter how slight Either gov't occupies land, or
authorizes 3rd partyo But if invasion is
owned by landowner, probably not per se taking
Temporary invasions – apply ad hoc test
o Allowing protestors in shopping center not taking since owners could put restrictions on them [Pruneyard]
If regulation causes loss of all economically beneficial/productive use of land [Lucas]
UNLESS justified by background principle of property or nuisance law
Looks at expectations when buying, and whether they were reasonable
Public Use Sovereign may not take property from A for sole purpose of
giving it to another private party B State MAY transfer property from one private party to another if
future “use by the public” is the purposes of the taking Economic development is a public use, if: [Kelo]
o There’s a comprehensive economic development scheme to create increased economic activity in an area
o No requirement that the goal of the city will be achieved with reasonable certainty
NOTE: state constitutions can provide more protection if they want
Just Compensation Usually FMV
24
“Property”o For aboriginal title (just right to possession) to be
considered property under takings, must be recognized by: [Tee-Hit-Ton]
Treaty, OR Statute
Requires good faith effort to compensate [Sioux Nation]
Remedy Compensatory damages For permanent taking
o Owner entitled to receive FMV of land on date of taking
For temporary takingo FMV of use of property during takings period
25
