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Property, Second Semester, Public Benefit, Private Burden, A promisee…

- - - - property the true owner unintentionally and unknowingly dropped or lost
      - belongs to the finder (unless and until the true owner is located)
    - - property the true owner intentionally placed in a given location and then left, or intentionally left intending to return for it later
      - belongs to the owner of the locus in quo (the premises owner or lessee) (unless and until the true owner is located)
    - - Property the true owner intentionally and voluntarily relinquished, with the intent no longer to own the object and without transferring his rights to another person .
      - two elements 1) act of abandonment and 2) intent to abandon
      - abandoned property belongs to finder; passage of time gives no rise to the presumption of abandonment
    - - Gold silver or currency intentionally concealed in the ground with indications that the true owner has died
      - treasure trove goes to finder
- - - - Entry helps determine what is being claimed and statute of limitation date
    - - Does not mean absolute exclusivity; means that claimants possession and use cannot be shared with the true owner or the public
    - - actions would put reasonably attentive property owners on notice that someone is on the property. (constructive notice not actual)
    - - claimants possession cannot be with the owners permission; there must be claims against the property competing against each other
      - Different possessor states of mind
        
        Objective standard
        
        State of mind irrelevant; all that matters is conduct
        
        Good faith standard
        
        "I thought I owned it"
        
        Aggressive trespass standard
        
        "I thought i didnt own it, but i intended to make it mine"
    - - Possession must be continuous for the statutory period, but not literally constant.
- - - - Fixture
        
        personal property that is permanently attached to real property but could be removed.
      - Tangible personal property
        
        Property of physical nature
      - Intangible personal property
        
        Property that is not physical but has value
  - - - Idea that person can have a relatively better title or right to possession than another, while simultaneously having a right interior to another
    - - Priority of rights based on time: all things being equal, the chronologically first possessor has best title
      - all things are not always equal.. see good faith purchases or adverse possession. second in time has better title there
    - - controlling or holding of personal property with or without a claim of ownership. 2 elements:
        
        an intent to possess on the part of the possessor
        
        his or her actual controlling or holding of the property
      - Possessor has superior rights to personal property except all those having higher rights or title
        
        Possessor can also recover possession or damages
  - - - Mortal wound is one that 1) will likely prove fatal and 2) shows a subjective intention to seize the animal
    - - not being in actual possession of an item but being legally deemed as having possession of the item
      - example: If an animal is on your property you have exclusive constructive possession to hunt it
      - When a person completes a significant portion of the steps to achieve possession of an item, but is thwarted due to the unlawful conduct of another, that person is entitled to a pre-possessory interest of the item.
    - - local customs can be used to determine who has possession
    - - owner of land has constructive possession of wild animals on land
  - - - The first to drill and produce oil or natural gas from a pool underlying the lands of several owners has acquired possession of the resource brought to the surface even though it may drain the pool under neighboring lands
    - - Riparian States (eastern)
        
        Each person with land abutting a water course may take water from it for any reasonable use
      - Prior appropriation (western)
        
        first person to make beneficial use gets vested right to continue.
        only way to determine first person is to file an administrative action. first to file has first prio, second has next prio, and so on.
- - - - Estates that prevent land from passing outside of family; prevent current owner from cutting off inheritance rights .
      - Conveyed in the form "to A and the heirs of his body"
      - nearly disappeared; can be converted to fee simple
    - - Estate given for a duration of someone's life
      - "to A for life" gives A a life estate that lasts for the duration of A's life. A can transfer his life estate to B, in which case B has a life estate pur autre vie - that is, an estate measured by A's life span, not B's
      - If B dies during A's lifetime, life estate passes to B's heirs or devises until A dies.
      - life estates have future interest ----- reversion back to transferor (O) or remainder in a transferee (B), or both.
      - Life estates
        
        to A for life
        
        Life estate with contingent remainder
        
        Contingent Remainder occurs when A) No person is ascertainable OR B) there is a condition precedent
        
        to A for life, then to B if B graduates from college, then to A's heirs
        
        Rule against perpetuities applies
        
        future interest ----- reversion back to transferor (O) or remainder in a transferee (B), or both
        
        alternative contingent remainders
        
        O to A for life, then to B if B survives A, but if B does not survive A then to C.”
        
        Life estate with vested remainder
        
        Vested Remainder occurs when A) Person is ascertainable; AND B) no condition precedent
        
        in fee simple absolute
        
        to A for life, then to B and B's heirs
        
        in a life estate
        
        to A for life, then to B for life
        
        in fee simple subject to open
        
        to A for life, then to A's children (B is A's child)
        
        Rule against perpetuities applies
        
        subject to divestment
        
        to A for life, then to B, but if B predeceases A, then to C
    - - most common; largest possible estate as duration is infinite
      - Key characteristics
        
        inheritable -- even if fee simple owner dies, fee simple passes to legal heirs
        
        alienable --able to be transferred to new ownership.
      - Inheritance
        
        O Dies without will? goes to O's Heirs (Intestate Succession)
        
        O Dies with will? goes to beneficiaries (devisees) mentioned in will (Testate Succession)
        
        SPOUSE: surviving spouses are designated as an intestate successor of some share in the decedent's land
        
        ISSUE: after spouses, surviving issue (descendants) take the rest of the estate to the exclusion of all other relatives
        
        ANCESTORS : Parents usually take as heirs if the decedent leaves no issue
        
        COLLATERALS: all persons related by blood to the decedent who are neither descendants nor ancestors are collateral kin. Only take if none of the above exist
        
        ESCHEAT: if no legal heirs, goes to the state
      - fee simple absolute
        
        cannot be divested nor will it end upon future events
        
        to A and A’s heirs
      - fee simple defeasable
        
        can be terminated prior
        
        fee simple determinable
        
        will end automatically if event happens
        
        to A so long as Blackacre is used as a school
        
        Future Interest--- retained by the transferor (O in example ) or his heirs. Called a Possibility of Reverter
        
        fee simple subject to condition subsequent
        
        does not automatically terminate but may be cut short or "divested"
        
        to A, but if Blackacre is not used as a school O shall have the right to enter
        
        Future Interest --- O retains right of entry, but it must be exercised (cannot be transferred inter vivos)
        
        fee simple subject to executory limitation
        
        grantor transfers what appears to be a fee simple subject to condition subsequent and in the same instrument creates a future interest in a third party rather than in himself
        
        to A, but if Blackacre ceases to be used as a school, then to B.
        
        Future Interest -- Executory interest to the third party, in this case B
        
        Rule against purpurites applies
    - - conveys estate for a period of time
  - - - ONLY APPLIES TO
        
        Executory interests
        
        class gifts (subject to open)
        
        Contingent remainders
    - - What is the "life in being" at the creation of the interest?
    - - What events determine how the interest is resolved
    - - who is the person who will prove that the interest will vest or fail within the life or death of that person, or 21 years after that persons death.
    - - O transfers a sum " in trust for A for life, then to A's first child to reach 25". A has no child age 25 or older. There's no validating life; the contingent remainder is void (LOOK FOR WHAT MIGHT HAPPEN.... IF THERES A CHANCE IT MIGHT NOT BE VAILID THEN IT MUST BE VOID UNDER RAP)
    - - a vesting event
      - there must be a validating life
      - rule is void if there is an invalidating life
      - Re - identify estates
- - - - four unities essential to joint tenancy
        
        time ---acquired at same time
        
        title-- acquired via same document
        
        interest --- had equal interest
        
        possession-- all owned the whole
  - - - time ---acquired at same time
      - title-- acquired via same document
      - interest --- had equal interest
      - possession-- both owned the whole
      - marriage
  - - - to A and B --- both are tenants in common. if A conveys his interest to C, B and C are now tenants in common. If B dies intestate, B's heir and C are now tenants in common
- - - - Donor must transfer possession to the donee with the manifested intention to make a gift to the donee
      - If manual delivery is not practicable, constructive or symbolic delivery may be permitted. If an object can be handed over, it must be
        
        Manual
        
        Physically transferring property
        
        Constructive
        
        handing over a key or some other object that will open up access to the subject matter of the gift
        
        Symbolic
        
        handing over something symbolic of the property given (handing over a note saying "i give my grand piano to you")
    - - Acceptance by the donee is also required. Courts presume acceptance upon delivery, unless a donee expressly refuses a gift
    - - Donor must intend to make a present transfer of an existing interest in the property (bound now not in future)
- - - - eviction (plus damages)
      - consent (express or implied) to a new tenancy
  - - - Landlord can:
        
        terminate the lease
        
        Mitigate damages; recover any difference in rent
        
        Leave premises vacant; recover accrued rent
- - - - memorandum of sale signed by party to be bound
      - describing the real estate
      - stating the price
    - - part performance
        
        allows for specific enforcement of oral agreements when particular acts have been performed by one of the parties
      - estoppel
        
        when unconscionable injury would result from denying enforcement after one party has been induced to change position in reliance
  - - - present covenants (broken if ever at time delivered)
        
        covenant of seisin
        
        The grantor warrants that he owns the estate that he proports to convey
        
        covenant of right to convey
        
        grantor warrants that he has the right to convey the property
        
        covenant against encumbrances
        
        warrants that there are no encumbrances (mortgage, lien, easements, covenants) on the property
      - future covenants promise for future act
        
        covenant of quiet enjoyment
        
        warrants that the grantee will not be disturbed in possession and enjoyment of the property by assertion of superior title
        
        The mere existence, without more, of a superior title does not constitute a breach of quiet enjoyment.
        
        covenant of further assurances
        
        the grantor promises that he will execute any other documents required to perfect the title conveyed
        
        covenant of general warranty
        
        warrants that he will defend against lawful claims and will compensate the grantee for any loss that grantee may sustain by assertion of superior title
    - - to be effective, a deed must be delivered with the intent that it be presently effective
    - - Special Warranty Deeds
        
        next greatest protection, warranties only against grantors own acts but not the acts of others
      - Quitclaim Deed
        
        no warranties, only conveys whatever title grantor has
      - General Warranty Deeds
        
        provide greatest protection, warranting against all defects in title whether they arose before or after grantor took title
- - - - A mortgage which secures the lenders note
      - Promissory note indicating purchasers contractual commitment to pay
  - - - the mortgagee(bank) takes legal title to the land; the mortgagor has only the equity of redemption
    - - mortgagor keeps legal title and the mortgagee has only a lien on the property
- - - - Establishes a system of public recordation of land titles
      - Preserves in a secure place important documents
      - Protects purchasers for value and lien creditors against prior unrecorded interests
    - - someone who purchases an interest in land without notice of another interest already held by a third party
      - Under the RECORDING ACTS, a subsequent bona fide purchaser is protected against prior unrecorded interests
        
        types of recording statutes
        
        Race- as between successive purchasers of the same parcel, the person who records first wins (notice is irrelevant)
        
        Notice-A subsequent purchaser for value who takes without notice of third-party interests in the land prevails, regadless of whether he records
        
        Race-Notice A subsequent purchaser for value who takes without notice of third-party interests in the land prevails only if he records before the prior instrument is recorded
      - common law rule of prior in time, prior in effect still applies unless person can qualify for protection under the recording acts
  - - - holds separate indexes for grantor/grantee
      - dsecribes grantor grantee, description of land, kind of instrument, date of recording, and volume and page numbers where instrument can be found
    - - Index that tracks by parcel number
  - - - Prior document recorded too early
        
        most courts hold that the document recorded before the grantor obtained title is not in the chain of title and therefore is not legally recorded
      - Prior document recorded too late
        
        most courts hold that the document recorded after the grantor obtained title is not in the chain of title and therefore is not legally recorded
      - "wild deed"
        
        O to A who does not record. A to B, who records. O to C who has no actual knowledge of the other deeds. C records. C title superior as no notice given in Race notice statute jd.
      - deeds from common grantor
        
        A grantor may restrict the use of his land. As long as that restriction is recorded, future purchasers of the land will purchase the land subject to those restrictions. Where a common grantor sets land use restrictions on all of his land, each grantee may enforce those restrictions against any other grantee.
- - - - QUIET ENJOYMENT-- obligation to pay rent is dependant upon the tenants having possession undisturbed by the landlord
        
        Possession can be disturbed by physical removal or actions that so substantially interfere with the tenants beneficial enjoyment that the tenant has no alternative but to vacate (CONSTRUCTIVE EVICTION)
        
        Constructive eviction discharges a tenants duty to pay
        
        Constructive eviction elements
        
        1.condition of leased premises amounts to a breach of the covenant of quiet enjoyment
        
        inaction is wrongful only where the landlord is under a duty to act. no general duty but few exceptions
        
        4 more items...
        
        Third parties- landlord not generally responsible unless landlord has legal authority to control 3rd party
        
        2 .the breach is so substantial as to justify the tenant absenting the premises
        
        reasonable person would find the property is uninhabitable or unfit for its intended use.
        
        the tenant thereafter leaves within a reasonable time then it was as though the tenant has been evicted
        
        tenant must give reasonable notice to resolve the problem
        
        if tenant waits too long before vacating, constructive eviction claim is waived
    - - Tenant may wish to vacate or stay but pay less rent
      - the tenant might be injured by allegedly defective premises and claim damages against the landlord in tort
  - - - tenant my withhold future rent and seek damages
      - does not apply to all leases but most
      - OBJECTIVE: safe healthy housing
      - Rent Reduction/Damages alternative formulas
        
        Agreeed rent - fair market value of premises in current condition
        
        fair market value in compliant conditions - fair market value in defective conditions
        
        agreed rent - percent of rent corresponding to lease value lost as consequence of breach
- - - - All property owners are subject to the right of the government to impose regulations where necessary, but governmental restrictions must also be balanced against the constitutionally guaranteed right of a property owner to use and enjoy his land. A municipality may not compel a landowner to make changes to his existing use of property. A property owner which makes lawful use of his property has a vested property right which cannot be taken away unless it is a nuisance, abandoned, or extinguished by eminent domain.
      - pre existing operations are protected, plans to engage in some particular use that is now non conforming is insufficient
    - - Variances
        
        variance must be necessary to avoid undue hardship
        
        reasonable efforts to comply with ordinance must be shown initially
        
        hardship must not be self inflicted
        
        variance must not infringe upon public good and intent and purpose of zoning plan
        
        board may make special exceptions to the terms of the ordinance in harmony with its general purpose and intent and may authorize in specific cases such variance from the terms of the ordinance as will not be contrary to the public interest, where, owing to special conditions, a literal enforcement of the provisions of the ordinance will result in unnecessary hardship, and so that the spirit of the ordinance shall be observed and substantial justice done
      - Special Exceptions
        
        differ from variances in that while a variance is an administratively authorized departure from terms, an exception is a use permitted by the ordinance in a district in which it is not necessarily compatible, but might cause harm if not watched
    - - where zoning amendment
        
        2) only for landlord benefit
        
        3) in a way not in accord with zoning plan
        
        1)singles out small parcel of land for special treatment
    - - Aesthetic Regulation
        
        As an exercise of their police powers, states may authorize local governments to make zoning regulations regarding aesthetic matters for the general welfare of the community.
        
        expanded zoning consideration beyond public health safety and general welfare to "public welfare" in the form of aesthetics
      - Controls on Household composition
      - Exclusionary Zoning
        
        A town, through enactment of land use regulations, must provide the opportunity for low and moderate families to live in the town and may not constructively prevent them from doing so.
  - - - EASEMENTS
        
        Easement is a non- possessory right to use or enter onto the land of another for a specified purpose
        
        classified as positive (allows affirmative act on land not owned) or negative (prevents landowner from doing things that would harm a neighbor) in relation to the easement holder
        
        further classified as appurtenant or in gross
        
        appurtenant gives the right to make specific use to whomever owns a parcel of land that the easement benefits
        
        Burdened land : Servient Estate
        
        Benefitted land: Dominant Estate
        
        benefits and burdens pass to assignees of the land which they apply to
        
        in gross gives the right to some person without regard to ownership of the land
        
        Burdened land : Servient Estate only
        
        benefit may not be assignable unless intended to be
        
        law construes in favor of appurtenant
        
        Generally requires a written instrument
        
        Depending on jurisdiction, easements can be created in favor of a third party
        
        Reservations and Exceptions
        
        Reservation is a provision in a deed creating some new servitude which did not exist before
        
        Exception is a provision in a deed that excludes from the grant some preexisting servitude on the land
        
        can be fee simple, life, or term of years
        
        EASEMENT BY ESTOPPEL/ IRREVOCABLE LISCENSE
        
        An easement by estoppel exists where:
        
        (1) a property owner grants another permission to use the property,
        
        (2) the other party has reasonable grounds to believe the permission will not be revoked, and
        
        (3) the other party, relying on this permission, incurs costs or otherwise substantially changes position by acting in a way that is not easily undone. The change in position must be reasonably foreseeable to the property owner granting permission.
        
        The property owner need not have any intent to mislead. The owner need only grant permission that is reasonably foreseeable to induce reliance and a substantial change in position.
        
        IMPLIED EASEMENT BASED ON PRIOR USE (QUASI EASEMENT)
        
        an implied easement exists when
        
        2) an existing, apparent, and continuous use of one parcel for the benefit of the other, existing at the time of severance; and
        
        3) reasonable necessity for that use to continue at the time of severance
        
        1) Initial unity of ownership of the now dominant and servient estates, followed by severance of the title to the dominant and servient estates
        
        IMPLIED EASEMENT FROM NECESSITY
        
        exists when
        
        1) initial unity of ownership of the now dominant and servient estates, followed by severance of the title to the dominant and servient estates
        
        2) strict necessity to continue the prior use at the time of severance
        
        endures only so long as necessary
        
        EASEMENT BY PRESCRIPTION (similar to adverse possession)
        
        elements
        
        Adverse and Hostile use
        
        Open and Notorious use
        
        Continuous use
        
        Use for the statutory period (same as adverse possession)
        
        easement that is granted when all elements below are present
        
        many courts recognize public prescriptive easements on the basis of long continuous use by the public
        
        SCOPE
        
        Easements may not be used in connection with a nondominant estate and any such use is subject to an injunction (external benefitters not allowed)
        
        locations of easements once fixed cannot be changed without permission of dominant owner unless the change does not significantly lessen the utility of the easement, increase the burden on the owner, or frustrate the purpose for which the easement was created
        
        scope of prescriptive easements must be consistent with general kind of use and what would be reasonably expected by servient owner
        
        TERMINATION
        
        An easement is terminated if the easement is used in a way that is inconsistent with the easement's original use and that was not reasonably foreseeable at the time the easement was established.
        
        methods of termination
        
        merger (owner of both estates)
        
        estoppel
        
        end of necessity
        
        abandonment (non use alone not enough)
        
        expiration (end of period)
        
        condemnation (gov takes via eminent domain)
        
        release (writing normally requried
        
        prescription
      - COVENANTS
        
        Traditional Approach
        
        REAL COVENANTS
        
        promise respecting use of the land that runs with the land at LAW
        
        Traditional Requirements for Real covenants
        
        For the Burden to run
        
        Vertical privity(whole interest must be held)
        
        the promise must "touch and concern affected land
        
        1 more item...
        
        Horizonal Privity between estates (shared interest in the land independent of the covenant) ie grantor grantee, landlord tenant;
        
        Intent by original party to be bound
        
        notice (subject under common law whether or not they had notice, but under American recording statutes , actual or constructive notice is necessary)
        
        For the Benefit to run
        
        Vertical privity
        
        the promise must "touch and concern affected land
        
        1 more item...
        
        Intent by original party to be bound
        
        notice is not required for a covenant to be valid, however, the covenant may not be enforceable against one who lacks notice. A covenant is not enforacable against an assignee who has no notice of it
        
        seek damages
        
        CANNOT ARISE FROM ESTOPPEL, IMPLICATION OR PERSCRIPTION
        
        created with written instrument
        
        EQUITABLE SERVITUDES
        
        seeking injunction
        
        a covenant respecting the use of land enforceable against successor owners or possessors in equity regardless of enforceability at law
        
        Requirements for Equitable Servitudes
        
        For Burden to run
        
        original parties must intend to bind successors
        
        promise much touch and concern the land
        
        successor in question must have notice
        
        For Benefit to run
        
        original parties must intend to bind successors
        
        promise much touch and concern the land
        
        vertical privity not required
        
        CAN BE IMPLIED UNDER LIMITED CIRCUMSTANCES
        
        generally need in writing
        
        TERMINATION
        
        acquiescence(allowance of other breaches)
        
        abandonment
        
        formal release
        
        unclean hands (court will refuse to enjoin a violation of a servitude that the plaintiff previously violated)
        
        merger of ownership
        
        estoppel
        
        laches(unreasonable delay of enforcement)
        
        CHANGED CONDITIONS DOCTRINE
        
        Under the doctrine of changed conditions, for a change of condition to nullify a restrictive covenant, the changes must be so radical as to practically destroy the essential objects and purposes of the agreement.
        
        Common Interest Communities
        
        Form of residential ownership in which management of the development is separated from possession
        
        condos cooperatives and planned subdivisions, including gated communities
        
        CIC's require a declaration of rules called covenants conditions and restrictions or CC&Rs
        
        Privity is met between purchasers and original developers
        
        common interest development use restrictions are generally valid based off of a reasonableness standard or if the servitude is "illegal, unconstitutional, or violates public policy".
      - PROFITS
      - LISCENSES
        
        oral or written permission given by the occupant of land allowing the licensee to do some act that otherwise would be a trespass
        
        licenses are revocable; easements are not.
        
        exceptions
        
        a liscense coupled with an interest cannot be revoked
        
        rules of estoppel
        
        license that cannot be revoked is treated as an easement.