property wolf[1] outline 2

8/3/2019 Property Wolf[1] Outline 2

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14.07 Entailment Statutes Convert Fee Tail Estates into More Acceptable

Estates In most states, limitations of the varieties described in 14.03 now create

an estate in fee simple in the first taker.

Property Hit List

Capture rule and rationale soli

Adverse Possession: COHEN; you can only adversely possess what the owner yourepossessing has to give.

Estates:

Present Possessory Interests: FSA, FT, FSSCS, FSD, FSSEL, FSWEL, LE, Estate foryearsFuture Interests: Reversion, Possibility of Reverter, Right of reentry, Indefeasibly VR,VR subject to open, VR subject to complete defeasance, CR, Shifting EI, Springing EITricks: Rule in Shelleys Case (to A then to As heirs); Worthier title (O to A then toOs heirs); Wilds Case (O to A then to As children); Rule Against Perpetuities;

Doctrine of Merger; Destructibility Doctrine

Leaseholds: Landlord, Tenant, sublease, assignment

Estate for years, periodic tenancy, tenancy at sufferance; Notice and termination of aleaseholdSublease and AssignmentConcurrent Estates: JT EQUAL SHARE, joint tenant (4 Unities), joint tenant with rightof survivorship (4 unities + marriage)-unalienable w/o both spouses consent, tenant incommon.Servitudes: Easements-Appurtenant or In Gross, affirmative or negative, ways to obtainan easement (grant, prescription, implied); Covenants-contracts- vertical/horizontal

privity; statute of frauds applies to servitudes. COMMON PLAN, CHANGE IN HOOD


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Case List:

1. Capturea. Pierson v. Post (capture rule)

b. Ghen v. Rich (whale hunting)

c. Keeble v. Hickergill (duck pond decoys)

d. Moore v. Regents of University of CA (body parts as personal property)2. Possession:a. Jaque v. Steenberg Homes (intentional trespass and punitive damages)b. State v. Shack (public workers cant be excluded from property)

3. Adverse Possessiona. Van Valkenburgh v. Lutz: Adverse Possession in Yonkers NY (feud of

neighbors)b. Manillo v. Gorski (AP when house steps encroach on anothers property

(mistaken belief)c. Howard v. Kunto: summer occupancy enough to = AP/color of title

concept

d. Marengo Cave: underground cave usage =/=hostile/notorious for APe. OKeefe v. Snyder: AP of real property (painting)4. Fees and Possessory Estates

a. White v. Brown: Fee estates-interpretation of LE or FSAb. Baker v. Weedon: sale of land affected by life estate/future

interests/economic wastec. Mahrenholz v. County Board of School Trustees: FSD/FSSCS

interpretationd. Mountain Brow Lodge No. 82, Independent Order of Ldd Fellows v.

Toscano (didnt talk about in class): FSD or restraint on alienation(covenant?)

e. City of Palm Springs v. Living desert Reserve: FSSCS-but palm springswants golf course instead of what land was designated for in the grant- PScould condemn, but had to compensate power of termination holder for100% of value of land in FSA.

5. Concurrent Estates:a. Riddle v. Harmon: conveying JT to TiC to oneself~OK.b. Wengel v. Wengel: MI rule dual contingent remainders.c. Harms v. Sprague: granting a mortgage ~sever JT.d. Delfino v. Vealencis: Partition in kind favored over sale for TiCs to

prevent hardshipi. Ark Land Co v. Harper: economic value of property as whole less

than if partitioned is relevant by not dispositive when sentimentalties to land from long-term ownership

ii. Johnson v. Hendrickson: opposite result-by sale if partition cantbe made w/o prejudice to owners.

e. Spiller v. Mackereth: absence of agreement to pay rent an ousted cotenantin possession not liable to cotenants for value of use, and notice to vacatehalf building or pay rent =/= ouster.


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f. Swartzbaugh v. Sampson: signing lease for possession of JT ~sever JT butlessor must account for rents.

g. Sawanda v. Endo: Tenancy by the entirety cant be touched by creditors ofeither party, so state is indivisible (unlike JT)

6. Leasehold estates and L-T relationship

a. Garner v. Gerrish: determinable life tenancy ~ = tenancy at will, so lessorcant terminate.b. Ernst v. Conditt: sublease vs assignment and consequences for privity-

assignment conveys whole term and sublease conveys less than tenantsown interest; in assignment liable to landlord for rent.

c. Kendall v. Ernest pestana, Inc.: lessor may not unreasonably andarbitrarily withhold permission for assignment of commercial lease, andwanting more $ is not reasonable.

d. Reste Realty Corp. v. Cooper:7. Land Contracts

a. Lohmeyer v. Bower: violation of a zoning ordinance with hazard of future

litigation constitutes unmarketable title8. Servitudes:a. Easements:

i. Willard v. First Church of Christ, Scientist: grantors intent to giveeasement to Church outweighs defects of CL rule which doesntallow conveyance of easement to another in grant of freeholdestate.

ii. Othen v. Rosier: mere fact that claimants land is completelysurrounded by the land of another does not of itself give the formera way of necessity over land of the latter where there is no privityof ownership (hadnt once been held by the same person andlandlocked parcel conveyed first. Othens road use was a revocablelicense.

iii. Brown v. Voss: You can only use private road easement to accessthe dominant easement (not adjoining property)- just negotiate asecond easement!

b. Equitable Servitudes:i. Tulk v. Moxhay: If you purchase with notice of what grantor

intended to be a covenant, vertical privity isnt required forequitable servitude b/c you got price break for buying land fromseller who thought their land was burdened. (its not fair!reasoning)

c. Covenants:i. Sanborn v. McLean: reciprocal negative easements- you should

have known that you cant build a gas station on your land thoughits not a covenant in the title b/c you should have noticed that itwas a residential neighborhood (held to inquiry notice). Elementsfor recip neg easements: 1) common owner 2)touch and concernland 3)mutual restrictions benefit land 4) from sale of other lots bysame owner w/ restrictions.


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ii. Neponsit Property Owners Assoc, Inc. v. Emigrant IndustrialSavings Bank: affirmative covenants to pay money dont run withthe land, EXCEPT when owner gets the enjoyment of roads, publicplaces, etc such as in HOA. Legal fiction of vertical privity b/cHOA represents all owners in privity.

iii. Shelley v. Kramer: racial restrictive covenants cant be enforcedb/c discriminatory state action.iv. Western Land Co. v. Truskolaski: covenant limiting to residential

instead of commercial use is in force b/c fails to prove change incharacter of neighborhood/circumstances.

v. Rick v. West: when a covenant affords real benefit to the benefitee,no consideration should be given to any award of pecuniarydamages in lieu of enforcement of the restrictions.

d. Eminent Domain:i. Kelo v. New London: regulatory taking of private land to convey to

private developer for public use ok.


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Property Outline

1.0 Wild Animals and the Rule of Capture: wild animals (but not domesticated ones)and their capture approximate the rules of other things such as oil and gas, that move

about land on their own.1.1 Rule of Capture: the hunter only gains possession and rights to a wild animalon land that does not belong to him when he captures the animal or wounds it,unless he abandons pursuit.

1.1.1 Pierson v. Post: Mere pursuit doesnt equal right of ownership ofwild animals when one cannot claim title to the land it belongsupon, and the same has not yet maimed the animal or beguncapture.

1.1.2 Keeble v. Hickeringill: set up decoys to catch birds on propertyowned by the Queen (not owned by or ) and sets up 6 guns tofire and scare away the birds w/ intent to injure s livelihood. The

court finds that is at fault. Rule: While he can compete with incatching birds, he cant intentionally ruin s livelihood throughvindictive means. Its important here that neither has claim to theland here, so they cant rightfully claim possession of the animalson that land w/o capturing them.

1.2 Rationale Soli: an owner of land is the constructivepossessor of wild animalson that land until the animals leave. Cited in both Pierson and Keeble but not adeciding factor.

1.2.1 Ghen v. Rich: once a fisherman does all he can do to make theanimal his own, he gains ownership of it regardless of who mightlater claim it. The court cites Bartlett and Swift as authority andfollows them to the conclusion that libellant owns whale. This casealso follows the industry custom established regarding propertyrights- in this village, custom was to notify the vessel owner whena whale washed onto shore, and that the whale would belong tothat owner.

1.3 Oil and gas mining: Oil and gas rights are often determined by rules ofcapture similar to those of wild animals, because they can move betweenlandowners, and it would indistinguishable where oil in a well came from(property owner A or B). You dont own the oil or gas until you capture it.Water under the ground and on the surface also followed similar ruleshistorically,

1.4 Economics of Property, Resource usage, and Capture: Demsetz arguesthat internalization of costs leads to very different property usage thanexternalization of costs (you may use your property in a way least costly toyourself that increases others costs). Also, community sharing of resourceschanges the rate at which resources are exploited: when you keep what youcapture, overexploitation is likely to occur.


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1.5 Economic Waste- anything you do as a life tenant, landlord-tenant, orcotenant which reduces the value of the property. Landlord, future interestholder, or cotenants can sue in equity to enjoin the wasteful activity.

1.5.1 Types of waste:1.5.1.1 ameliorative waste- A lessee's unauthorized change to the

physical character of a lessor's property -- technicallyconstituting waste, but in fact resulting in improvement ofthe property. Generally, equity will not enjoin such waste.1.5.1.1.1 Ameliorative waste- LT must not engage in acts

that will enhance the propertys value unless allthe future interest owners are known andconsent.

1.5.1.2 Voluntary or affirmative waste- actual overt conduct thatcauses a decrease in value (overt destructiveness)

1.5.1.3 Permissive waste (neglect)- when land is allowed to fallinto disrepair or the life tenant fails to reasonably protect

the land (maintenance of premises in reasonably goodrepair)1.5.2 Exceptions to waste:

1.5.2.1 Ameliorative waste1.5.2.2 Estover- taking wood for fuel (not allowed in England)1.5.2.3 Emblements- crops planted on the land produced annually,

not spontaneously1.5.3 Penalties for waste

1.5.3.1 at common law: forfeiture of property to the next rung upthe ladder and trevel damages.

1.5.3.2 Today: injunction usually. Why do we tolerate ameliorativewaste and estover in America but not England? b/c hereland is a commodity which explains why were willing tochange/develop it.

2.0 Personal Property and Ownership/Rights to Use:2.1 Moore v. Regents of Univ of CA: an individual has no property interest in

excised cells which would allow a cause of action for the tort of conversion.Concurrene: We morally dont want to incentive/encourage sale of theseitems, so putting a price on them and a property interest could establish adangerous precedent.

2.1.1 Conversion: wrongful exercise of ownership rights over the

personal property of another.

2.2 Jacque v. Steenberg Homes, Inc: when nominal damages are awarded for anintentional trespass to land, punitive damages may, in discretion of the jury,be awarded. the court says that if you can only collect nominal damages here,there is no incentive to enforce property rights of the owner, and the legalsystem is an insufficient means of protecting the owners rights. $1=/=protection.

2.3 State v. Shack: ownership of real property does not include the right to baraccess to governmental services available to migrant workers and hence there


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was no trespass within the meaning of the penal statute. There are limits towhat you can legally do on your property, though in general you can excludeothers from use of your property.

3.0 Adverse Possession: hostile taking of anothers land, which after a period of timegives the taker right to title. Possession is not necessarily equated with ownership:

think leases.3.1 Elements of Adverse Possession: COHEN (Continuous, Open, Hostile,Exclusive, Notorious) possession of land.

3.1.1 Wengel v. Wengel: : Joint tenants w/ rights of survivorship canclaim sole possession of the life interest through adversepossession, but cannot claim adverse possession with regards to thecontingent survivor interest.

3.1.2 What can you adversely possess? You get only what the ownerhad when you enter the property and take possession (at the timethe cause accrued), so that if A then sells subsurface to B, APcould still take adverse possession of the subsurface at year 13

because A still owned the subsurface at the time that adversepossession accrued. This rule also applies to life estate/remaindersituations. You can AP the present possessor of a life estate, butyou wont own property in FSA until they die and you adverselypossess the owner of the remainder.3.1.2.1 In constructive adverse possession, if the owner isnt

present on the property at all, then he can be evicted evenof a parcel larger than the parcel the adverse possessor isoccupying.3.1.2.1.1 If the owner is on the estate, AP can only gain

what he is actually using. (ex: A possessesblackacre estate-100 acres- he can gain wholething if hes the only one using any of it. If Bthe true owner was living on the other side ofblackacre though, A can only gain title to whathe was actually using and cant kick B off ofwhat B was actually possessing).

3.1.2.2 Why do we tolerate AP? English: to punish owner for nottaking care of his property; American: to reward someoneputting property to better use than the owner.

3.1.3 Color of title: belief you own title which is in fact invalid. In somejurisdictions, adverse possession can only apply when you believedin good faith that you had title to the land you possess. In others,color of title does not meet the element of hostile or notoriouspossession to allow for adverse possession.3.1.3.1 Manillo v. Gorsky: Intent of the adverse possessor is

irrelevant, and any time entry and possession of therequired time is exclusive, continuous, uninterrupted,visible, and notorious, even though under mistaken claim of


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title, is sufficient to support a claim of title by adversepossession. This is the minority view.

3.1.3.2 Majority rule: you know, or should you have known

that adverse possession was occurring.

3.1.4 total area of the property youre trying to constructively adversely

possess must be proportional to the amount youre using.3.1.5 Mistaken boundary: most adverse possession cases occur frommistaken boundaries, where one property owner mistakenly buildor uses a portion of anothers land. In most courts, this may qualifyas a valid adverse possession.

3.1.6 Statute of Limitations: generally, each jurisdiction has its ownlimitations, after which the adverse possessor gains ownership ofthe property and may file to quiet title.3.1.6.1 Tacking: when consecutive adverse possessors are in

privity with each other, the time when the adversepossession first occurred may serve to begin running the

statute of limitations. (ex: if one mistaken boundary ownersells their property to a new owner, the statute oflimitations does not start over).

3.1.6.2 Tolling: when the land owner is under some disabilitywhich would make him unable to recognize the adversepossession at the time the adverse possession firstbegins, the statute of limitations does not begin to run untilthe owners disability has ceased.3.1.6.2.1 Disabilities: Subsequently arising disabilities

DONT Matter; only those that exist at the timethe cause of action accrues qualify to stop SoLfrom running. Vary by jurisdiction, but underage of 18 (infant), insane, incarcerated, or in themilitary are commonly disabilities. Historically,married women were considered disabled.

3.1.6.2.1.1 Ohio: 21 years- or disability >11 years +10 years after disability ends. Ohiosnewest statute takes incarceration off thelist of disabilities (but not retroactive)effective 6 mos after statute passed July13, 1991.

3.1.6.2.1.2 FL: No separate disabilities statute forAP, so you use the general disabilitiesstatute- 7 years SoL for all types causesof action (not just property)

3.1.6.3 Tolling (stopping the clock) is for the benefit of owners.Tacking is for the benefit of adverse possessors- tackingonly occurs when youre in privity (if you sell your color oftitle invalid deed to someone else, there is tacking).


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3.2 Adverse Possession of personal property: generally allowed, but subject todifferent rules than AP of real property. Why? Its difficult to meet the openand notorious element in a way that puts the true owner on notice of yourintent to AP the property.

3.2.1 OKeefe v. Snyder: statute of limitations doesnt begin to run until

the owner knew or should have known of his cause of action andthe identity of the possessor of chattel. So what if you have anowner that doesnt exercise due diligence? Does the statute beginto run upon notice, or only upon when she should have known byusing due diligence. You must do what is reasonable for anowner to do when they notice their property is missing untillearning of the adverse possessor in order to keep their cause ofaction and avoid the SoL.3.2.1.1 Discovery rule doesnt necessarily benefit the owners of

personal property- adverse possession rule would be morefavorable if is fraudulently concealing property. Its not a

better rule- just different.3.2.2 Florida allows for AP of personal property by statute, but Wolfthinks the concept is flawed, and points out the concept initiallywas applied to slaves as personal property.

3.3 Coase Theorem: because a dispute between winner and loser involved fewparties, transaction costs would be low and hence the value-maximizing use ofthe cave would be achieved in any event- result in the case should have noimpact on the use of the property because loser would buy out winner. Iftransactions costs are 0, it doesnt make a difference who wins the case. So itdoesnt matter whether the court calls As possession open and notorious.

3.3.1 Critiques of Coase: bilateral monopoly and the real world3.3.1.1bilateral monopoly- when only 2 parties are bargaining,

each is so keen to out bargain the other party, they oftenreach a standstill and abandon negotiations altogetherrather than get out-negotiated. (relate this to eminentdomain and takings after Keloh- this is often onejustification for private takings b/c developer cant getenough property owners and one holdout would destroyentire project).

3.3.1.2 Posner says: because transaction costs are anything butcostless, efficiency is promoted by assigning the legal rightto the party who would buy it were it assigned initially tothe other party. Critique of this: could go too far in eminentdomain- just because Id be willing to buy somethingdoesnt mean I should get it for free to promote economicefficiency.

3.3.1.3 In the real world, transaction costs are not 0, so we cantpredict outcomes based on Coase. Also, people dontbehave rationally as Coase presumes them to behave-theydont weigh transaction costs when determining whether to


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sue, and there may be non-economic reasons for the causeof action.

3.3.2 Applied to OKeefe v. Snyder: OKeefe is probably the party withthe most money and has the upper hand. She could buy thepainting from Snyder if she wanted to Transaction costs for this

case were likely extremely high, so Coase wont apply.4.0 Historical Property Rights and Evolution of the Fee system4.1 History of Feudalism: King owns all the land and gives out portions to tenants

in chief to use. They take their own portion and allow others to live on theland under land tenures- next rung on the ladder gets to work the land andlive there in exchange for services and incidents.

4.1.1 Types of land tenure: socage (agriculture), military, andfrankalmoign (religious), seargantry (service industry to thenobles).4.1.1.1 Socage eventually becomes the dominant form, mainly

because it lacks the aids of wardship and marriage.

4.1.1.2 Each type of land tenure provided a different servicenecessary to the king to keep his power and to keep thegoverning system functioning.

4.1.2 Incidents: the land lord had right to payments from his tenants incertain situations (which sweetened the deal for him) but also hadto pay incidents to the next up the line. The best analogy forincidents is taxes. They kept up with market rate or inflation, andeventually became the dominant payment portion of the feudalsystem.4.1.2.1 Types of Incidents before 1215:

4.1.2.1.1 Wardship- tenant guardian of land when tenantdies w/ minor under 21- lord gets the benefits ofthe land until child turns 21- can sell heir[maleor female] in marriage and they refusearrangement must pay a fine- applies only tomilitary tenures

4.1.2.1.2 Relief- heir pays lord when tenant dies to takeover the land-death tax of primogeniture

4.1.2.1.3 Homage and fealty-vowing loyalty to personabove him on feudal ladder- loyal to you andalso recites loyalty to the crown

4.1.2.1.4 Aids-entitle lord to demand help from tenants incase of financial exigency

4.1.3 1215: Magna Carta limits incidents to 3: knight of kings son,marriage of his daughter, or ransom for his life; king also addsForfeiture (revocability of land if tenant refuses to performservices; if high treason, king entitled to seize the land fromanyone-goes straight to the crown; benefit to the person above you,and the lord can renegotiate for land); Wardship- tenant guardianof land when tenant dies w/ minor under 21- lord gets the benefits


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of the land until child turns 21- can sell heir[male or female] inmarriage and they refuse arrangement must pay a fine- applies onlyto military tenures; Relief- heir pays lord when tenant dies to takeover the land-death tax of primogeniture (only the first-born sonreceives the land. If no sons, then brothers or their sons. If none,

then eldest daughter).4.1.4 1285: Statute De Donis- Abolishes the fee simple conditionalinstead replacing with fee tail.

4.1.5 1290: Quia Emptores: revamp the land tenure system byabolishing subinfeudination (or adding more rungs to the ladder)and instead making tenant substitution focused on capital outlay(buying) rather than routinely performed services.4.1.5.1 After Quia Emptores we know what the estates are: 1)fees

simple- fee: simple; absolute; and defeasible fees (FSC,FSSCS, FSUEL, FSCBEK?); 2) fee tail; 3) life estate(PAV; determinable) Point: there are only 3 types of fees.

King not subject to Quia Emptores, so he occasionallycreates wacky estates.

4.1.5.2 Subinfeudate- create a fee for someone below a person andcreate another rung on the ladder below him.

4.1.5.3 Substitution makes sure landlords receive incidents ofincreasing (market) value and increasing chance of escheatand forfeiture. Why did the lower levels go along with it?They wanted to be able to transfer their estate during theirlifetimes for a market price without permission. This dealstruck in Quia Emptores.

4.1.5.4 Escheat- if you have no heirs, land reverts to the next onthe rung. Modern version: If you have no heirs, yourproperty reverts to the state.

4.1.6 1536: Statute of Uses- creates executory interests which cant bedestroyed.

4.1.7 1660: Law of 1660 reforms land tenures and keeps only 3 of thecharacteristics of the tenure system: escheat, relief, and notion thatland is held rather than owned.

4.1.8 RAP develops from English judicial decisions 1682-1883 (assumeit applies at CL).

4.1.9 1700: English Common Law established and adopted in thecolonies. Law at 1700 is what became American common law.

4.2 Fee estates: (as created by Quia Emptores): Fee simple, fee tail, life estate4.2.1 Present Possessory Estates: FSA, FT, LE, FSD, FSSCS, FSWEL,

FSSEL4.2.2 Fee Simple: Historically, tenants had interest in property for life,

and after death the landlord could dispose of the land as he sawfit However, by 13th century inheritance of fee bcame right-though you had to pay a fee to the lord to inherit.


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4.2.3 convey title to A and his heirs- A is term of purchase, and hisheirs term of limitation (what duration will the grant last?).4.2.3.1 Fee Simple Absolute: present possessory interest as well

as ownership forever (devisable, descendable, alienable).4.2.3.2 Fee Simple- you own title to land forever, but may not

have present possessory interest (ex: if you grant a lifeestate to someone else out of your FSA, you keep feesimple). Land will revert back to you after life estate ends.

4.2.3.3 Fee Simple Determinable: to A and his heirs so long asthe property is used for X purposes. If the property is evernot used for X purposes, it automatically reverts to thegrantor and his heirs. If condition is violated and meetsCOHEN, the clock for adverse possession begins to run atthe point where the possessory interest reverted to O. FSD+ possibility of reverter=FSA.4.2.3.3.1 FS w/ an executory limitation: same as FSD,

except rather than reverting to O upon violationof condition, the property automatically goesdirectly to a transferee other than the grantor(shifting executory interest holder). Note: theseoften violate the Rule Against Perpetuities andare void if no time limit for the condition toapply. FSw/EL+Shifting Executory Interest=FSA.

4.2.3.4 Fee Simple Subject to Condition Subsequent: to A andhis heirs, but if property is used as a restaurant, then O mayenter and retake the property. FSSCS + right ofreentry=FSA4.2.3.4.1 Fee Simple subject to an Executory

Limitation: same as FSSCS, except the right ofentry/power of termination rests in thetransferee/shifting executory interest holderrather than in O the grantor. Like the FSSCS, EIholder must enter and retake the property to gainthe present possessory interest.

4.2.3.5 Fee Tail: O grants an estate to A and the heirs of hisbody. A has a life estate; upon his death, property revertsto O and then life estate is immediately conveyed to anydescendants (issue) of A. Someone of As bloodline willalways own a life estate, and O will hold reversion.4.2.3.5.1 Fee tails were created through Quia Emptores,

and were a method of the barons and elite tomaintain their property through generationswithout being sold or split.

4.2.3.5.2 At common law, if you try to grant more thanyou have, you forfeit your land (ex: if you have


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a life estate and then try to give away FSA).Under modern law, you can only give what youhave- so you can give what you have or lessthan what you have (not more). Exception: instates with fee tails, you can often break the tail

by transferring a fee simple absolute to the nextbuyer.4.2.4 Future Interests: ML: all future interests are alienable, devisable

and descendible4.2.4.1 Interests in the Grantor: reversion, possibility of reverter,

right of reentry- all three future interests are retained by thegrantor when the present possessory estate is conveyed.4.2.4.1.1 Reversion: Remainder of a fee tail, Life estate,

or estate for years which guarantees thatproperty will revert to O and Os heirs when theprevious estate ends. FSA-Fee tail=reversion;

LE+Reversion=FSA4.2.4.1.1.1 Reversion subject to completedefeasance: Os reversion may bedivested if a condition subsequent is metso that an executory interest holder takescontrol of the property. (ex: to A for life,but to B and his heirs if B bears a sonbefore 2025. O retains a reversion whichmay be divested if B has a son before2025. After 2025, if B has not fulfilledthe condition, O would once again havean indefeasibly vested reversion).

4.2.4.1.2 Possibility of Reverter: interest in the grantorfollowing a FSD so that property automaticallyreverts to O if the property is used in a way thatviolates a condition of the conveyance.Descendable, but not alienable or devisable

4.2.4.1.3 Right of reentry: interest in the grantor givinghim the power to reenter and take the propertyat will if the property is used in a way thatviolates a condition of the conveyance. Wordscreating right of entry may be express orimplied.

4.2.4.2 Interests in Transferees (persons other than the Grantor):Remainders and Executory Interests4.2.4.2.1 Remainders: Polite, and no mandatory gap.

When O conveys a present possessory interestto A then the remaining interest to B to takepossession at the conclusion of As interest.


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4.2.4.2.2 Vested Remainders are subject no to conditionsprecedent to gain present possessory interestexcept that the transferees identity has beenascertained and the previous estate has ended.Vested remainders are alienable, devisable, and

descendable (or have the same properties as theestate which they represent-ex: VR in LE is onlyalienable).

4.2.4.2.2.1 Indefeasibly vested remainders:no wayremainder holder will not gainpossession at the end of the precedingestate. (ex: to A for life then to B and hisheirs.)

4.2.4.2.2.2 Vested remainder subject to complete

defeasance: remainder holder has beenascertained and may take possession

unless a stated event occurs which willmake his interest void. (ex: to A for lifethen to B, but if C has a child by the endof As estate, to C and his heirs.)

4.2.4.2.2.3 Vested remainder subject to open:

remainder holder is a member of a class,all of whose members have not yet beenascertained. Though A will receive aportion of the estate, the portion he willreceive may decrease if new members ofthe class are ascertained. (ex: To A forlife, then to Bs children. B has a child,C, at the time of conveyance, and B isstill alive).

4.2.4.2.2.3.1 Rule of convenience: a classcloses at either As death orBs death, whichever is first.Members of the class arenecessarily ascertained byBs death b/c B cannottherefore have more children.Class closes on As death sowe will know more quicklywho the valid estate holdersare and not wait many yearsinto the future.

4.2.4.2.2.4 Contingent Remainder: remainderwhere 1) the recipient of the remainderhas not yet been ascertained (ex: to Bsheirs) or upon which some condition


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precedent which must occur in order forB to claim the estate.

4.2.4.2.2.4.1 Destructibility Doctrine: atCL, must take possession atthe termination of the valid

preceding estate or hisinterest is destroyed. Also, ifB holds a CR to take at endof the previous estate, hisinterest may be destroyed bymerger if the present estateand the future remainder areowned and conveyed to thesame person. (ex: to A forlife, then to Bs first child forlife, then remainder to C. If C

QCD to A and A sells hisinterest to D, Bs childs CRis destroyed.) The point ofthe destructibility doctrine isthe promote alienability ofthe land. Note: destructibilityof CRs has been abolished bymodern law.

4.2.4.2.3 Executory Interests: future interests in otherthan the grantor that can cut the present interestshort. Created by the Statute of Uses. EIs areindestructible at CL (except for the tricks)

4.2.4.2.3.1 Springing executory interests: thosewhere EI holder may take possessionfrom O the grantor.

4.2.4.2.3.2 Shifting executory interests: thosewhere EI holder takes possessiondirectly from the previous estate holder.Often subject to Rule againstPerpetuities.

4.2.4.3 Tricks and Rules of Future Interests:4.2.4.3.1 Rule in Shelleys Case: If O tries to convey

present possessory interest to A and futureinterest to As heirs, the future interest shall beto A and As heirs (conveying the future interestto A). Often the doctrine of merger will mergethese interests so that A has FSA (unless VRremains between the present possessory interestand future interest in A and As heirs). The


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point of this is to promote alienability. Shelleyscase has been abolished in most modern courts.

4.2.4.3.2 Rule in Wilds case: FI in to As childrentranslates to A and As children. If A has nochildren at time to take possession, then A has

FT. If A has children, they each receive equalshares of FSA. At ML, treat how the ML injurisdiction treats a fee tail or as cotenancy.

4.2.4.3.3 Doctrine of Worthier Title: to A for life, thento Os heirs. Os attempt to convey CR to Osheirs is void. Therefore, O has an indefeasiblyvested reversion. This is a rule of constructionand still exists in many jurisdictions.

4.2.4.3.4 Rule Against Perpetuities: All future intereststhat may last longer than lives in being plus 21years are void.

4.2.4.3.4.1 Unborn widow: O to A for life, then toAs children.5.0 Leasehold estates: Estate for Years: wepretended for purposes of test 1 is was a

freehold, but it is actually a chattel real- an interest in personal property5.1 Term of Years: lasts for a fixed period of time w/ fixed calendar dates or

computable formula resulting in fixing calendar dates. Can be for any amountof time, not just for years. ANY PERIOD OF TIME-1 month, 2 days, 2 years,etc. Most common form of leasehold.

5.1.1 No notice required for termination. On the last day of the lease,the tenant simply leaves the premises because the possession iscomplete.

5.2 Periodic Tenancy: lease for a period of fixed duration continues forsucceeding periods until landlord or tenant gives notice of termination. Hint:dont refer to it as periodic tenancy- think of it as a period-to-period tenancy(just a trick to understand it, but dont use this on the final exam). If propernotice isnt given, it is automatically extended for another period. Ex: monthto month tenancy continues until proper notice is given for termination.

5.2.1 CL Notice: Notice must be given one full period in advance ofintent to terminate. You are only liable for the length of the nextperiod in a periodic tenancy. Wolf believes you have to terminateon the final day of the period (not in the middle of the period).Common law says you have to give an end date w/ a written date atthe end of the future period. Ineffective notice at Common Law istreated as no notice at all. Modern law says you only must givenotice equal to the period of lease, if under six months. If yr orlonger, 6 months notice. 6 month term, 6 months notice (equal tothe term length). Wolfs theory: between 6 and 12 months, its stillthe length of the period required as notice (11 month period = 11months notice). If tenant leaves, L has duty to mitigate damages bylooking for another tenant.


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5.3 Tenancy at Will: can be terminated at the will of either party (tenancy atwills). If only one party has power to terminate the tenancy it doesnt fitinside the box, so not sure we should allow it at all. You could say you donthave a tenancy at all, otherwise you could revise to say at will of landlordAND tenant. If one dies, the lease is over.

5.3.1 Garner v. Gerrish: does term to T to terminate when he wishescreate tenancy at will or determinable Life tenancy? Court saysthere is no longer any reason why a lease granting the tenant alonethe right to terminate at will, should be converted into a tenancy atwill by either party.

5.4 Tenancy at sufferance: holdover tenancy. When a term of years expire but thetenants remains in possession of the premises, a holdover tenancy is created.You now are there after your initial tenancy for years ends. CL rules givelandlord two options: 1)eviction or 2)consent to creation of new tenancy.Holdover tenant is not considered hostile or trespasser for purposes ofadversely possessing the landlord.

5.4.1 Crechale & Polles v. Smith: tenancy from year to year is createdby tenants holding over after expiration of a term for years. Butnot in this case, b/c landlord had option at expiration of lease couldhold tenant as trespassor or tenant. He elected not to accept astenants but then accepted a check, and cant elect to then call themtrespassers. It notified the tenants that it had elected to treat themas holdover tenants to extend for another term. This usuallyextends the lease the time the check was accepted. Absentevidence to show contrary intent on part of landlord, he whoaccepts rent from his holding over tenant will be held to haveconsented to a renewal or extension of the leasing. He has in effectagreed to extension of lease on month-to-month basis.

5.4.2 MR: Majority of states holdover tenancy gives rise to periodictenancy at periods of how often the rental payment is due.

5.5 Assignments and Subleases: two techniques whereby the tenant may assignhis personal property interest in a leasehold to another. Generally, the tenantwho assigns or subleases remains liable for failure to perform by the assigneeor sublease

5.5.1 In the absence of language to the contrary, T has right to transferhis/her lease w/o consent of the landlord.5.5.1.1Not unusual to see clauses in leases where L allows T to

transfer but only where L grants consent. Court read intolease a reasonableness requirement if there is a clause so Lcouldnt unreasonably withhold consent.

5.5.2 Contract triangle: L-T1: privity of estate; L-T: privity of contract;T-T1: privity of contract5.5.2.1 Most common time this is most significant is when T1

stops paying rent. L has a choice of who to sue to recoverhis damages. On a property theory, landlord can go after


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assignee. On a contract theory, landlord can go after T. Cango after both of them, but can only get one set of damages.

5.5.2.2 T1 must pay rent as negotiated by L-T and fulfill Ts landobligations to L.

5.5.3 Assignment: If transferor transfer entirety of lease term.

5.5.3.1 If there is an assignment (if T gives T1 everything she hasleft), then L and T1 are in privity of contract, and T1 has aproperty interest- term for years. T1 has stepped into theshoes of the original tenant.

5.5.3.2 In commercial leases, modern courts find that L may notarbitrarily withhold permission for assignment or subleasewithout

5.5.4 Sublease: if transferor transfers ANYTHING other than entirety oflease term.

5.6 Revolutions in L-T law: DC in the 1960s has a court system where federalcourts hear L-T cases and most Ts in DC are poor blacks living in slums. The

DC Court of Appeals hears a lot of L-T cases and revolutionizes law to favortenants who the court feels are being taken advantage of by rich whiteslumlords. Laws had previously been heavily in favor of Ls so that they couldevict in summary proceedings, didnt have to repair damaged buildings, and itdidnt excuse T from paying rent.

5.6.1 At CL, Ls could evict Ts with no notice and could physicallyforce removal of tenant or kill them to get them off the property ifL gave notice to leave. While courts were a venue to deal with this,it was rare b/c no written leases and Ts were generally not in aposition to sue or get damages.

5.6.2 Constructive eviction: conditions of property which deprivetenant from use and quiet enjoyment of the property are consideredconstructive eviction. Reste realty establishes leaking roof andsounds of prostitute next door as constructive eviction. sewagepipes, bugs, fire, rats. But if the fire inst the Ls fault, the tenantstill has to pay rent according to CL principles (youre renting theland, not just the house). :

5.6.3 Illegal lease doctrine: if conditions of the property wereequivalent to constructive eviction conditions when the lease wascreated, the Court has authority to not enforce the lease (reasoningthe lease is unconscionable). Does not apply if code violationsdevelop aftercreation of the lease (Brown v. Southall Realty)

5.6.4 Dependent Covenants and shift to contract law principles: Courtin Hilden v. St. Peter creates shift in modern law so that rather thanmaking Ls making property safe/useable and Ts payment of rentobligations independent, the two are now dependent convenants. IfL breaches, T doesnt have to perform.5.6.4.1 Unconscionability: Court imports doctrine that

unconscionable clauses of leases 1)void the whole lease or2) void the unconscionable clauses of the lease. After the


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DC courts begin to change L-T law against the Ls, the Lsbegin writing favorable clauses into their leases to protectthemselves. However, the court refuses to enforce theseclauses as unconscionable.

5.6.4.2 Implied warranty of habitability: contracts concept that

the product you provide must be of adequate standardwhether or note the contract specifies a specific minimumstandard.

5.6.4.3 Repair and deduct for repairs: if T gives notice, Ldoesnt fix and then sends the bill w/ the lease payment5.6.4.3.1 In some cases, repair and deduct was effective

w/ the CL, but then later through statutorychanges.

5.6.4.4 Retaliatory eviction is barred: started as CL and now isstatutory) If L tries to evict you, he has to have a betterreason than you ratted him out or complained.

6.0 Concurrent estates: when two or more persons share a present possessory interest.6.1 Tenants in Common: ML: presumption towards TiC rather than JT unlessclear language (or in some cases, intent) of grantor to create JT. TiC ariseswhen multiple parties share divided shares of the undivided whole land. TiCsare alienable, devisable, and descendible. TiCs may be created with unequalshares given to parties (99% share to A, 1% share to B is allowed w/ TiC).

6.1.1 Each owner of a share has a right to possess the whole property.6.1.2 Sale of land held in TiC: owners share profits in degree of their

interest.6.2 Joint Tenants: ML: Must be created with four unities of possession or will be

a TiC. CL: presumptions towards JT when four unities are met.6.2.1 Four Unities:

6.2.1.1 Same interest6.2.1.2 Same possession6.2.1.3 Same time6.2.1.4 Same instrument

6.2.2 Severance of JT: by selling your interest the JT, the ownershipstructure changes to TiC.6.2.2.1 If you do not alienate your interest in JT before your death,

your interest is extinguished upon your death and dividedamong the surviving joint tenants.

6.2.2.2 Riddle v. Harmon Strawperson rule- need straw person ifyoure in a JT and A wants to sever the JT and create a TiCmade up of B and the JT of A and C. A must transfer Asinterest to another party and then other party must transferit back. Minority of jurisidcitons allow A to transfer to Aand C in JT, but not what were going by for our rule. If Aattempts to write a deed to herself severing JT and createTiC, majority rule is its ineffective b/c it doesnt give B


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notice if B predeceases A the deed severing JTconveniently disappears.

6.2.2.3 A lien or mortgage is not sufficient to sever a JT.6.2.2.4 You must use a strawman in general to sever a JT- you

cant convey your JT to yourself in TiC (violates to two to

transfer rule). Why? We want to be sure you dont secretlycreate a deed severing JT and only assert it if you die first(other JT must have constructive notice that youresevering the JT by filing deed).

6.2.2.5 Slayer rule: murder of a JT severs the JT. It is presumedthen that you die first and the other JT inherits your portionof the JT (making it descendable or devisable if there areonly two JTs and you kill the other JT). Not sure whathappens if multiple JTs and you kill one.\

6.2.2.6 If JTs die at exactly same time, pretend that each diedbefore the other, so their heirs get their portions of inetersts.

6.2.2.7 A lease is not enough to sever the JT.6.2.3 more difficult to make JT b/c right of survivorship and limits youability to pass it on to your heirs (restraints on transferability).

6.2.4 Constructive ouster:It is extremely difficult to establish adversepossession against joint tenants or tenants in common. You mayoust them (physically force them off the property or useconstructive ouster. certain acts even in the absence of the actualmessage from B to A that would indicate for one to believe thatouster has occurred. For purposes of final, it had better be veryclear that its constructive ouster b/c its extremely difficult toprove. Much higher standard of notice if A and B are co-owners.

6.2.5 Action in waste: if a TiC or JT is doing something to change thevalue or face of the property, you may file an action to make themstop.

6.2.6 Lease of JT: a JT may lease the property without the other JTspermission. However, he must account for rents to the other JTs. Ifthe JT dies, the lease is over and other JTs may oust tenant fromproperty (they dont inherit the JTs lease w/ T).

6.3 Tenancy by the entirety- Endo: Land held by husband and wife in tenancy bythe entirety is not reachable by creditors of one party. Tenancy by the entiretycannot be broken w/o the consent of both parties (different from JT, where ifyou convey your interest it creates a TiC). Both parties must consent to sales.

6.3.1 Fl by statute authorized TbyE from one spouse to self or self andother spouse. Creditors can only reach property which can bealienated by either party, so cant touch TbyE.

If apply rules in most modern jurisdictions, TbyE as existed in CL doesnt apply in mostjurisdictions. In FL and HA are the only states it still exists.

6.4 Partition: requests that a Court divide the interests held concurrently. Thecourt may at the petitioners request partition in kind or partition in sale.


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Presumption towards partition in kind unless it would significantly hurt theinterests of a concurrent interest holder.

6.4.1 Partition in kind: court evaluates the land parcel and divides theparcel into shares reflecting the lands value and improvements.Preferred when possible. Also preferred when the land may have

sentimental value to its occupants that they would not beadequately compensated for if the land were sold and proceedsdivided.

6.4.2 Partition by sale: court sells the disputed land.7.0 Servitudes

7.1 Easements- interest (not an estate) in real land allowing some activity on theproperty owned by another, or restricting what you can do on your ownproperty. You only have authorization to do the activity the easementauthorizes. Easements generally have to be in writing and comply with statuteof frauds (except prescriptive easements and implied easements) b/c theyreinterest in property.

7.1.1 Characteristics of easements:7.1.1.1 Classified by duration7.1.1.2 Affirmative: you do something on the property of another.

when trying to ask if its an affirmative or negative

easement, ask if its affirmative first.

7.1.1.3Negative: you cant do something on your own propertyand restrict alienability, so they were pretty rare torecognize at CL. OR7.1.1.3.1 4 negative easements recognized at CL:

blocking light, air, supporting walls, andflowing streams from artificial sources (naturalsources were covered so that you could onlyreasonably use it).

7.1.1.3.2 ML: conservation, viewshed, American courtsliberally interpret negative easements.

7.1.1.3.2.1 covenants often look to be negativeeasements, so watchout for the confusion

7.1.1.4 Appurtenant: often two adjoining or nearby properties,where the dominant tenement has rights to do some act onthe servient tenement. (ex: road). Often adds value to thedominant tenements property and diminishes the value ofservient tenement. OR7.1.1.4.1 Traditionally, there was a presumption that if

you didnt use words of limitation youd createdan easement in gross. If you say I give Jim theright presume its easement in gross (rebuttablepresumption) so we need to determine if thoughnot using words, that its still appurtenanteasement. Analyze whether Jims bank accountis increased or his property value is increased.


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7.1.1.5 In gross: you have rights unattached to the land you holdallowing you to do something on anothers land. (ex: coxcables utility lines on my property-cox cables office is faraway.7.1.1.5.1 Personal easements cannot be alienated to

another.7.1.1.5.2 Commercial easements can be alienated toothers.

7.1.1.5.3 English CL: you cant sell an easement in gross.7.1.1.5.4 Easement in gross lasts and is attached to the

servient property7.1.2 Easement by agreement (grant)-easiest and most common way to

make an easement.7.1.2.1 Easements by prescription: need to meet all the elements of

adverse possession, but instead of giving you the freeholdtitle to the property, you gain a prescriptive easement. Need

same statute of limitations as AP.7.1.2.1.1 adverse user of the property (not adversepossession). You can only acquire affirmativeeasements by prescriptive easement (you haveto use someone elses property to get theprescriptive easement).

7.1.2.1.2 English rule: can acquire a negative easementby prescription in Engand (doctrine of ancientlights: if I get light through windows of mybuilding unimpeded by other buildings, and aspecific period of time passess, then neighborcant then impede your natural light throughyour windows. Thats a negative easement, soyou will ask for injunction/damages)- courtswill grant it in england but not America.

7.1.2.1.3 American rule: You cant acquire a negativeeasement by prescription or the doctrine ofancient lights. Note: you have to actually use theproperty itself to get prescriptive easement: notjust look at it for a nice view, etc. Note: this canbe changed by statute (CA) or by expresseasement of ocean view, etc.

7.1.3 Implied easements: 1) Neither is in writing and there must havebeen 2) unity of ownership between what was the dominant andservient tenement. Must be an individual owner (the United Statesonce having owned the land before a land lottery doesnt count).Landowner divides their land into multiple parcels and someoneasserts an implied easement exists.7.1.3.1 By necessity: if by necessity, it terminates when the

necessity ends.


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7.1.3.1.1 MUST have been created or reserved (retained)an easement. Most commonly happens for right-of-way for a land-locked property. What islandlocked property? Is there a way to get fromyour property to a public road? In some

instances, the courts have even found navigablewaterways abutting property are adequate toalleviate necessity for easement. You mustprove that oneperson/party once owneddominant/servient tenement, and may have beenvoluntary or involuntary

7.1.3.1.2 If you own a dominant tenement you cansubdivide the dominant tenement, so the ownerswould all have the right to use the easement.Caveat: the use must be reasonable giventodays usage of servient land. Look at land to

see if it could be anticipated that the land mightbe used for that because use has changed overtime and this use adequately accommodatesnormal development of dominant estate.

7.1.3.2 Prior use- if Hill sells his property with the road alreadybuilt so that the landlocked party could get out on theroad or another smaller road. All easements on land thatsold by same person to others at same time, Othen wouldhave dominant tenement and Rosier would have servienttenement.7.1.3.2.1 A cant have easement over one part of land

when he owns the entire property, but now thathe sells both parts, so the easement comes intoexistence.

7.1.3.2.2 Where a quasi-easement existed, the new ownermay claim the dominant tenement over theservient tenement (he can claim against Hill orrosier who bought the land) an impliedeasement

7.1.3.3 Elements of implied easement: must have been apparent,permanent, important for enjoyment of conveyed quasi-dominant parcel.

7.1.4 terminate an easement:7.1.4.1 expiration

release (dominant tenement releases easement to owner ofservient tenement-needs consideration)

7.1.4.2 abandonment (Wolf doesnt like this-people dont abandonreal property- how do you abandon an easement? Intent +acts-


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7.1.4.3 merger (buy dominant and servient tenement destroyseasement

7.1.4.4 Prescription- the servient tenement stops the dominanttenement from using easement and the statutory period runs(there must be non-use for the statutory period).

7.1.4.5 Condemnation- if govt wants to acquire Bs parcel, govtcan do that and terminate the easement across Bs land ifthey pay just compensation (5th amendment).

7.2 License- agreement to allow another to do something on your property whichcan be revoked at any time. Not an interest in real property so it doesnt needto meet statute of frauds (in writing). Best way to determine is to look at thepiece of paper that created it- if the paper says right of way, then its aneasement.

7.2.1 only lasts as long as you own the property7.2.2 Exceptions: Profit (irrevocable): You couple the right with an

agreement to take something off someone elses property

(profit)- All profits are affirmative. License would be irrevocablefor the purpose of going back in to get what you brought to a sportsgame where youre ticket is revoked.

7.2.3 What if govt takes land and in process terminates license? Doesgovt have to pay just compensation? No, unless its irrevocable(profit).

7.3 Covenants: promise/contract to do something to your property or not dosomething to your property to benefit other neighboring landowners. realcovenants- real servitude like easement, profits, and equitable servitudes. Overcenturies, CL cocurts developed various requrieemtns for enforcement of realcovenant against party not party to covenant or to enforce it if werent a partyto the covenant, or both.

7.3.1 real covenant runs with the land.7.3.2 Running means youre talking about someone who wasnt party to

the agreement7.3.3 At time contracts were entered into, both benefited and both

burdend by contract (B benefited from As promise and Abenefited from Bs promise). You cant tell which is burdened orbenefited in real situation b/c promises go both ways. So you waituntil theres a conflict- then you know which is benefited andwhich is burdened. Party that allegedly breaches is burden side,party that sued to enforce is on the benefit side.

7.3.4 3 things you must show for a running covenant: intent, touch andconcern, and privity. You must meet all 3.7.3.4.1 Intent- intent that benefit or burden will run with the land.

Intent in England- if promise related to something in esse(in existence at time of agreement) then you didnt needwords to show intent that it would run with the land. Youdont need the heirs/assigns language if its somethingthats in existence.


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7.3.4.1.1 Ex: A sells property to B and A (benefit side)beneficiary of Bs promise to maintain statuethat is on the property. The statue is inexistence, so it runs with the land. If itssomething thats not in existence, then its a

personal covenant unless the promise saysotherwise (wont run with the land). Today, itsvery difficult to find a covenant situation inwhich the court wont conclude intent is present(presumed it runs with the land unless youindicate its a personal covenant).

7.3.4.2 Touch and concern- does thepromise touch and concernthe land? Analysis: whether it adds value to the benefit sideand decreases the value of the burden side. Rather thanincreasing the wealth of the owner of the property. You canhave a personal promise on one side and not the other

most American courts throw out the touch and concernrequirement unless its clearly personal and enhances thewealth of the individual. Has to do with the property asproperty.

7.3.4.3 Privity- what kind of privity is required? It depends onwhether its a benefits running, burdens running, or benefitsand burdens running case.

Burdens running case Horizontal & verticalprivity required

VP=same estate (for yrs,FSA, etc)

Benefits running case Vertical privity required

(horizontal not required

VP=any estate relationship

Benefits and burdensrunning case

Horizontal and vertical

Horizontal privity: the relationship between the originalcovenanting parties other than the factthey entered into a contractwith each other. It depends on the jurisdiction. At time partiesentered into agreement, what other relationship did parties onopposing sides of agreement have with each other?

7.3.4.3.1 In England, only Landlord-Tenant (tenurialrelationship). Also includes Life tenant and

reversioner situation.7.3.4.3.2 Massachusetts in the 19th century? There had tobe a simultaneous easement in the property. Itscumulative- it can be a tenurial relationship or adominant-servient tenement of an appurtenanteasement relationship, so any of these equalhorizontal privity. Today its changed, butNevada now follows the old Massachusetts rule.


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7.3.4.3.3 Majority rule: tenurial + simultaneous interest(easement) + any grantor-grantee relationship

7.3.4.3.3.1 Mere neighbors have no horizontalprivity

7.3.4.3.3.2 Strawperson wouldnt work

7.3.4.4 Vertical Privity: a land relationship between the previouslandowner that made the covenant and the person seekingto enforce or that the covenant is being enforced upon-Careful! the rules are different depending on whetheryoure on the burden or benefit side.7.3.4.4.1 Burden side: someone who succeeded to the

same estate. Ex: I have 20 acres in FSA and Isell you 5 acres (think of a subdivision- this isok for vertical privity). 20 acres in FSA, I sellyou 20 acres as LTenant. Estate means duration.So vertical privity in Ex 1, but not example two

(two different types of estate by duration). Youcan sell a portion of your land in grantor-grantee

relationship if FSA FSA FSA. So anassignment for estate for years will work (Estate

for years estate for years). Consent, touchand concern. Assignment has obligation tofollow covenants. Sublet doesnt have to followb/c not the same estate tenant had, so no verticalprivity and no requirement to abide bycovenants.

7.3.4.4.2 Benefit side vertical privity (this is a broader

definition of vertical privity): all of the burdenside of same type of estate PLUS anyone with a

lesser estate. Ex: FSA LT (vertical privity).Ex: possibly even adverse possessor- even anadverse possessor could possibly enforce thecovenant (Wolf thinks this is ridiculously lax).

7.3.4.5 Once Tulk decided and you dindt have to have horizontalprivity and it boiled down to notice (intent and touch andconcern requirement basically written out),

7.3.4.6 So equity courts developed all kinds of theories some ofwhich benefited the aprties seeking to enforce equitable

servitudes, but others hurt the s. Hurts s: theory ofchange in circumstances/neighborhood (Truskolaski &Rick v. West): a change in circumstances case), enforcedeven though circumstances changed and argued thatshouldnt be enforced. Wont grant injunction unless it willbenefit the part seeking ot enforce.

7.3.5 Shelley v. Kramer (racial restrictive covenants) Somerestrictions are good- the reason why we have these is b/c all


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parties to restriction are doing something beneficial to the property.Why is shelley a negative covenant? b/c it says you cant rent/sellto someone who wasnt right (you cant do something with yourown property).

7.3.6 Hint: Wolf wont use phrase and his heirs, assigns, etc to refer to

an easement; and his heirs is fair gain and refers to a covenenat7.3.6.1 SECOND test easement and his heirs vs. heirs andassigns (covenant).

7.3.7 Conservation easements- sui generis form of servitude (not reallyeasement or covenant)- easy to make, impossible to break. More innature of covenant b/c its negative and negative (looks like negeasement in gross) or covenant but not between two neighbors. Notsubject ot change in circumstances- perpetual- and though it mightnot be for business use, (ex: farmer can restrict his land from beingdeveloped) its aloowed to be perpetual. Horizontal privity notrequired. Worst of all aspects of servitudes.

7.4 Equitable servitudes: Tulk v. Moxhay-D didnt make any promises to A orC, so there msut be something that binds Moxhay to the promise. OR itshould be harder to enforce promise against covenantors transferee thanagainst the covenator. How to we make it harder? By increasing therequirements. Burdens running (intent, touch and oncern, vertical privity,horizontal privity). Economic reasoning: Moxhay pays less for it, then wantsto avoid the covenant? Thats not fair. We want ot make it dififcutl incovenants to give stranger an interest in title, so we require an additionalpromise.

7.4.1 You must have actual, constructive, or record notice to enforce in

equity

7.4.2 Cant get damages, only injunction.

7.4.3 Wolf dislikes ESs and says that it gives the developer the best ofboth worlds- they can sell with representations of one thing at thebeginning of a project but change their tune half way through- thebest option would be to file a plat map w/ restrictive plans insteadof forcing buyers due diligence to divine whether they shouldfollow covenants not listed in their own title.

8.0Nelson Symposium Golf Course Conversions materials8.1 Wolf- media hysteria after Kelo- why was media attention so much greater

and harsh after Kelo than after the 2 decisions it was precedented on (1954and 1980s)? Kelo created a media firestorm and let to immediate backlash bystate legislatures creating statutes to prevent taking of private lands througheminent domain by local govts for purposes of private-to-private transfers.Most states that passed laws only allow for blight takings, w/ harsher scrutiny,etc Factors leading to the backlash:

8.1.1 News and historical context: first decision during the Brown v.Board of Education court overshadows it.

8.1.2 Reganism in the 1980s8.1.3 Rise of right-wing media


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8.2 Best solutions to Kelo for state and local govts:8.2.1 Procedural rather than substantive safeguards

8.2.1.1 More judicial review, requiring more documented analysisby govts along each step of the process creates moretransparency to voters/citizens

8.2.1.2 More desirable than substantive laws which are oftenpassed hastily and may produce undesirable results8.3 Conservation easements: perpetual conservation easements are donated by a

property holder to a charitable trust to prevent development of property. Threeholders in the trust: public (represented by state atty general), trustadministrators, and the property holder. Notes that perpetual easements areextremely difficult to terminate or modify and require cy pres court hearing toprove change in circumstances which make easement impractical orimpossible (regardless of how the easement was acquired-donated, bought, etcb/c the public is an interested stakeholder through one means or another). Alsoare subject to traditional rules of easements for termination as well as the rules

for charitable donations (the interest cant revert to the property holder/donor).8.3.1 Suggests that we should think more carefully and plan easementsrather than the headlong rush into preserving acres at thepotential expense of future generations b/c of difficulty inremoving the easements.

8.3.2 Easements should fit within a developed conservation plan ratherthan hodge-podge decisions by individual landowners

8.3.3 Perpetual easements may not always be the best strategic choicefor land use but its the only type that gets tax breaks.8.3.3.1 Term conservation easements- prevent development for a

specified period of time and then automatically terminate(ex: 50 yrs) to prevent overly-rapid development.

8.3.3.2 Term-terminable conservation easements- conserve for aspecified period of time and at the end of the period, thetrust holder can reevaluate to continue the easement ormodify b/c of changed circumstances.

8.3.4 Final question of who would get profits if a conservation easementis modified or terminated: the local govt or the trust or theproperty holder?

8.4 Weaver- Golf Course Conversions: zoning and Planning Considerations: mostgolf courses are converted into single family homes and the decision to rezoneby city zoning and commissioners is subject to criticism by both sides(developers and adjoining residents). Local govts in general supportredevelopment b/c it increases tax revenues, but also has many otherconsiderations (increased infrastructure, roads, schools caused bydevelopment). Numerous lawsuits regarding the issue by nearby propertyowners who claim they relied on representations of golf course and want theopen space and view (and appreciated property prices- golf course propertiesare generally more valuable than other homes)


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8.4.1 Zoning: in planning, there is often deference to the citys zoningchoices when part of an overall development plan rationallyrelated to a legitimate govt interests.

8.4.2 Spot zoning: local govts cant arbitrarily require golf courses tostay as open/agricultural spaces when they have allowed others to

develop nearby properties. The burden to keep open/green spacesshould fall on the shoulders of golf course owners to make up forthe citys planning mistakes in fialing to create adequate parks andgreen space itself.

8.4.3 Reverse spot zoning (inverse condemnation): local govts cantaltogether ban golf course conversions (this is a taking) but shouldconsider each development plan/rezoning petition on the merits. Adeveloper neednt try to file for all other types of rezoning beforefiling inverse condemnation when filing would be expensive andfutile.

8.4.4 Courts give significant deference to local govt decisions where

both sides present reasonable arguments which make the govtsdecision discretionary. (Court shouldnt supersede the zoningdecisions of local communities).

8.4.5 Are zoning decisions legislative acts or quasi-judicial? Thisdetermines the degree of due process which interested partiesshould be afforded. Courts are split

8.4.6 Cities should plan for parks and green space in advance andshouldnt rely on golf courses for this.

8.5 Golf courses and wildlife- USGA has made steps to increase wildlife on golfcourses, and numerous courses are preservation friendly. They create infoguides for golf course developers and managers to increase balance withwildlife- including conservation certification.

8.6 Salkin- Ensuring Community Amenities through golf course development:looks at prior court decisions regarding zoning and redevelopment of golfcourses. Genearlly, the court applies a rational basis test to determine if thecitys refusal of rezoning for development isnt arbitrary and fits within arational plan serving the govts legitimate public interests. Existence of anoverall development and community use plan often makes the difference asevidence that citys choice isnt arbitrary, as do studies documenting reasonsfor avoiding development in lieu of green space.

8.6.1 Planned Unit Developments as a more flexible alternative to allowgovts to mix uses and deviate from deisity reqirements whileretaining underlying zoning desginations.

8.6.2 Cluster developments- allowed to go over density requirements inone area in exchange for leaving significant open space on theentire large tract. Dont generally involve mixed use.

8.6.3 Municipal incentive zoning- developers obtain incentives such asincreased density limits or additional uses in exchange forproviding certain amentities such as affordable housing, parks andpublic spaces, etc.


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8.6.4 Transfer of Development Rights- landowner yields somedevelopment rights in exchange for right to develop another parcelmore intensively.

8.6.5 Alternatives: deed restrictions, conservation easements, landdedications,

8.6.6 Development agreements- contract where developer providescertain amenities in exchange for a fixed zoning regulation.Usually govt evaluates which amenities most urgently needed forpublic. Tend to be more flexible than PUDs or incentives.

Wolf anal-retentive method for learning future interests:

1) Id as estate or servitude2) If estate, id as present possessory or future interest3) If present possessory, tell what kind it is (look for magic words).4) If future, in grantor or other person?Is it going back to grantor? Then reversion, possibility of reverter or power of

termination. If not, then 2 possibilities are remainder or executory interest if its a futureinterest in someone other than grantor.First see if its a remainder: If remainder, vested or contingent. If not, then executoryinterest. Then rule against perpetuities analysis. Then look at the tricks: (3 of them).

Covenant: time of the grant???? Affirmative v. Negative.

Equitable servitude???

Effects in 2008 q2.

DUMPORS CASE

property wolf[1] outline 2

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