Personal Property Possession rs “This is due tothe lack cof ies in chattels, and ‘Constructive ) actual Possession Possession potential abuse of Physical possession ‘Actual conta, no ‘right makes righ. ‘physical poss Y Eads Brazelton - Wreck of @ a the §.S. America, He who has the present ably and intent © possess, vill be considered to have done so Possessor intends to exclude al the word in his enjoyment First in Time, First in Right, ‘Athough multiple people may claim possession ofan abject, the person who had it fst wil succeed (unless he Uransfered is interest) Tandowners who Rave ved on @ property quality for past possession of ‘ings found in the house; but absentee Tandlords do not Hannah v Peel Bona Fide Purchaser (Equi Estoppe) Entrastments (Stat Estoppe) Breakin Shaner ce 2-403(1) Uc 2-403(2) Possession (2) Purchased for FMV: Goods entrusted to merchant of (@) Honest belie in ttl goods ofthat kind gives him aemean a (@) No circumstances tothe contrary. FULL POWER to transfer ttle 10 Striaght up stolen shit does not quality. “Trae oviner may sue for TROVER have no reason to think a jewel sore is doing illegal shit, “Raverze Possession \When sight of repievn expites. Replevin does not run until rue ovmer has KNOWLEDGE of the current wherabouts of chatel cAHONES -Conunuous ‘Actual Hoste ‘Open & Notorious General Rule of Finders: " The finder of LOST articles, even when they are found on the property, in the building, or wth the effects of third persons, is the owner thereof against all the world exept the true owner Exceptions: Not all mislocated property i lost, and net al lost property may be found by any person on the lan. — ‘The law of finders is rooted in assumptons of the ouners intent, based| con where it was located Lost Misti Abandoned TO unintentionally dispossessed! never meant to separate, Invent to repossess. thems dropped in puble places. 4. Tue Owner 2. Finder TO intentionally Tet tem, but UNINTENTIONALLY forgot to pick it back up Iment to Repossess “Things on tables, waling rooms 1. True Ovmer 2. Onmer, Locus in Quo 3. Finder (LiQ not osmership interest) TO intentonally abandoned TO has no intent to repossess Some shipurecks. 1. Finder Because True Owner does nol know Hl ‘where he lost and there is preference to use property, no | ‘subsequent finder has better chance ‘finding TO. Finder gets. Because Tive Owner nientonally placed down, she knows where is, and can therefore reluin o abla > ACCIDENTAL BAILMENT. Locus in Quo hold it as ailment True Over dees not want to keep oF sell propery. Preference for use. “Therefore finder wine wants AND can constructively claim gets to keep Finder mast NOT 2} Wrongfuly be on premises Trespassers get no finders right Pre-Requisites of pen | | | Finders | b) Be under contract af emplayment of I servitude! be on lan for Emited purpose. Finder has no rights (umer of Locus in Quo treated as a baile for True Owner (bao) Cannot be wespassing Mere pasage of tie insuifcient to demonstrate intent to abandon. > Requires some evidential circumstance that there fs no intent 0 it owner has no abil to obtain, not Nether lost, misiaid, nor abandoned? > TREASURE TROVE ‘At common la, goes tothe crown = Modern rule, follows the law of nders. yet considered abandoned, ‘Things embedded in the land are considered fixtures, particulary it they got there by an act of nature, Goddard v, Winchell‘Tree Elements of Inter Vivos Gite Gifts Donative Intent Deliver PLus ” ‘Acceptance Mere delivery i not intent. Requires clear evidence ot intent donate Actual - Physical delvery a tangible personal provers, Presumed, because people like to ‘get tree things. [Symbolic when physica delivery is impossible arge and heavy) oF impracticable (curenty with a bailce), cours val allow a "substitute" ike a writen promise o otherwise to suffice for delivery Laws suspicious of claims that people have given avay property fo ree Rebuttable presumption: property ceannot be foreed onthe unvling [constructive - Property not itself wansterre, but something contoling access to itis. For example, giving away the keys toa car or sate deposit box. [Construcvely gran access. v Conditional Gifts Beyond acceptance, require an ‘dallonal condtion to aequlte ‘ownership, © ~~ Gis Gausatioris ~~ 7) ins cuasa mois p---4---5 | 2breiminary Condos | | (2) In view of immediate death Donors giving away as a 2. Donor is competent | | death; I | | | I I | | 2:Made in view of imminent | Gits Causa Mortis, Split in Authorty on Wedding Rings. ‘Some call them condlional gts, thers consider them regular gis in want o affection (hich are complete aL acceplance). | inview of immediately impending death | 4. Acceptance, acceptance to complete the 5, Death of Donor deal | @competency ot Donor | | = Donor must be legally compententin | not complete unt donor ‘order to manifest an intent to donate. _y dies: if donor survvesno J GS A interest has transferredFuture Interests & Freehold Estates Grantor Interests Possibility of Reverier- FS Determinable ‘Automatically revers to grantor "upon occurrence of condition Grantee Interests "No inorests good unless it must vest. it (could be subject to condition subsequ ‘o conaiton precedent, Kinds of Vested Remainders (1) Indeteasibly Vested Remainder: Holder of remainder cevtan to acquire in future. "To A for if, then to B. INO RAP (2) VR sub to Complete Deteasance: Remainderman exists, no prerequisites, but rght to possession could be cut short due to condion subsequent. “To for Fe, remainder to 8, but 8 dies underage 25, ta C. INO RAP (2) VR subject to OPEN: Remainder is vested in a group. Group i ether open or closed. Need ta nate if the class is closed or open. Once the class is closed, the relative inerests of each is determined, "Ta Afor Ife, then to B's children Cass can close al either Aor B's death RAP Remainders vested & Contingent VESTED: (2) Created in ascertained person andl (2) not subject to condition prevedent| (CONTINGENT: Created in unknown person (unborn or surviving’ children) or subject Reversion Lie Esate ‘Any other interest granior carved ut of tile trough words of limsation Right of Re-Enty: ‘Sub fa Condit Subsequent Grantor may asser right in court, ‘upon occurence of condition ll, no later than 21 years aftr some life in being atthe creation of the intered precedent, romainders subject to OPEN, and ‘execuioryinerests en) I Executory interests: ‘future interest created in ‘grantee by cuting shor a Previous holder Contingent Remainder subject to Condition Precedent: Conciions precedents are pre-requisites to taking the remainder ie To Atari, then, if graduates trom callege, 10 For our purposes, An attempt to gve Grantors Possibility ‘of Reverer o Right of Re-enty toa third pany Ex) To A and hers, so long 8 Auses i as parking ot condition precedent unmet when preceeding esate ends, ‘the contingent remainder 's destroyed, and interest reverts 0, RAP then iB. RAP Rule in Shelley's Case: Ita grantor gives faite estate ith the consingert remainder inhis heirs, the interests MERGE and Arecieves a FEE Deteasible Estate Life Estate Fee simple Determinable Upon the happening of a stated event, the land isto reverto ihe grantor automaticaly Fee Simple Subject to Condition Subsequent Grantor caves aut a ron-automalie ight of re-enty Fee Simple Subject to Executory Limitation Grantor essentially conveys ‘AES determinable or FS 'SICS ta ated party ¥ —— eteasibie Estates Magic Words "To Ator ite, “To Ator B's ite ur autre vie "To Ao long as “To Aunt. "To Awhile.” “To A, butitx happens, grantor reserves the right to re-enter and re-take To A, butt happens, then to 8 oR “To A, but X happens, then B has rigntto| re-omer and re-take! ‘SIMPLE ABSOLUTE Transterabiliy Alienabe, devisabe, and escendable SUBJECT TO THE MEASURED LIFE. Alienabe, devisabe, and descendable SUBJECT TO THE CONDITION Alienable, devisabe, and descondable, SUBJECT TO THE CONDITION Alienable, devisabe, ane descendable, SUBJECT TO ‘THE CONDITION unre interests 11> Grantor: Reversion > Grantee: Remainder Possibilty of Reverter (Retained by the Grantor) Right of Re-Enty! Power of (Retained by the Grantor) Executor interest Possibity of Reverter or Right of Re-Enty Accordant Rights Duty Against Waste +a) affrmatve waste +b) permissive waste (neglect) + ©) ameliorave waste (eonnovations) ‘Sol Runs IMMEDIATELY ‘upon triggering condition SoL Does NOT run until the party holding the right of reentry decides to ‘exercise it ie triggering condition can have occurred 20 years ‘90, and stil not run. Doc of Destuctilty of contingent remainders. ta contingent remainder has not vested by the expiration ofthe receeding estat, the remainder is destroyed.‘Vested’ by ihe expiration or me re-enter and re-take" cee st receeting estat, the remainder is destroyed, ‘Accordingly, there is an IMPLIED REVERSION IN Does the preceding estate expire on is own? port T TT > | GRANTOR IF AN ESTATE fe) Does i end without influence fram the future interest Ni © Invores DOES NOT END INA being examined” 1m Executory interests |] _yeSTED REMAINDER OR LLL J | execurory INTEREST ves ‘Are the grantees ascertainable? ‘Ace there under children? = NO. Is the word “surviving” used? = NO. ‘Something must happen before this can vest. (stated event, unascertained person, unborn Bom children = YES, persons) + Living people = VES. If surviving > a person's death viggers It untom > bith wiggers Subject to Condition Is the grantee AUTOMATICALLY (already) Precedent lentitled tothe remainder? f-— ta chillis ‘born ‘an occurrence which must happen betore the yes ‘Vested Remainder; Subject to Open Do we know ALL members? No | elass Open! base on chien -> closes 9 months ater death Can new people jon the class? ‘of male, immediately afer female death Yes. Can it be lost? Is tere another condition subsequent tothe remainder which could potentially end the possessory interest inthe remainder? T Rule Against Rule Against Perpetuities Does Perpetuities NOT Apply ‘Applies | | | ! ! 1 1 ! | | | | 1 1 ' ! | | | | | 1 y ves. No. Executory Interests Vested Remainder; Subject to ‘Complete Deteasance Ineteasibly Vested Remainder “CUT SHORT PREVIOUS ESTATE INTEREST TO AGRANTTEE.creation Unites Concurrent Estates Rights ‘Termination Unilateral Transfers? Joint Tenancy To A and 8 as joint tenamis"| "To A and B as joint tenants vt right of survivorship Most states DEMAND the inclusion of with right ot survivorship" ort defaults to TTenancy in Comon + Time (partes get ‘te atidentical me) + Tie (on the same deed) + Interest ith equal shares) + Possession (and right to posses the whole) Gay Beach House: Some states requie a “tran.man” purchase to convey a JT biw owner ‘and another, because ror ownership aisrupts unity oF time ana ile ght of Sunivorship ‘When ane cies, interest goes to others. Last remaining gets tee simple. Possession: Joint Tenants have complete right to credtors: Can only access al pint tenants ae indebted blo te interests are shared ‘Severance! 1) Conveyance: 2) Mortgage? 23) Agreement 4) Simultaneous Death (« 120 hours apart) 5) Slaying Partition Voluntary agreement - Pariton in Kind (where ‘equitable physical dvsion is possible) Forced Sale court orders i] sale. profs divided propitoinaly) > Transferable Inver Vivos But camotbe devsed or ‘descended It grantes is NOT already jaint tenant, her portion becomes a tenancy in ccomman with joint tenants, ‘ile remaining js have jt bin themseives Tenancy by the Entirety When grantis created between spouses. + Time (partes get se at identical ome) + Tive (on the same deed) + lnterest ith equal shares) + Possession (and right te posses the whole): PLUS + Legal Marriage Right of Survivorship ‘When one cies, interest goes to spouse, UNLESS MURDER -> Slayer statute, [Constucive Trust for victim's hers. rectors: Gan only access ‘bath spauses are indeed be te interests are shared Divorce (becomes join tenancy) Death (tee simple in ‘survver) ‘conveyance to Spouse (merger of estate ito tee simple absolute) - CANNOT transfer interest, ‘except to other spouse (which destroys the THE) ‘To transter interest to 3a party, both husband and wite rust sign Tenancy in Common Detauit when given to wo or ‘more people without right of sunvorship Possession. Al imerests ToC are undivided in] No ight of survivorship. CCreltors may take a single Tenantin CCommar's interest and seit The new person is also a tenant in common, Right of Connon ita ne mates eps, Y he otners must conrbute fnaniayt se gues thommaice ono for rena, NoDUTY TO conte Diapers Alfimative duty nat to waste Parton + Voluntary agreement Parton in Kind (were equitable physical division is possible) Forced Sale (cour orders sale, profts divided propritsinaly) Y > Each individuals interest is desvenelble, devise, ‘and vansterable inet Grantee becomes tenant inLeasehold Estates Landlord-Tenant Relationships Tenants interest Landlore’s interest Aessorhas fee sinple —g._ Nat is fee sve ‘Species of Agreement Alienable by Alessee has exclusive possession of real propery «ther party subject tothe lease, a faure subsequent: therefore ae unless K possessory interest. witha lease unless evieion proceedings are not aes, tight ta camer ‘sutomatic> require action Lacks seen possession, but has seisen Creation Ending Lease "The Holdover Tenant Tenancy for Years Lease with detintive end date. Can be less than a year ar ane hundred, Periodic Tenaney Lease which automatically renews at ine end of each peti, ‘Tenancy at Will her tenant o landlord may end at any time [Tenancy at Sutferance wrongful holdover of ended lease, NO RIGHT 0 POSSESSION. Only given legal status to ‘guarantee rent for Tanclore Tenancy at Sutferance ® Landlord breaches lease: tenant may remain for 30, days without owing rent, Altempt - What f parties forget date? Creation: Contract for lease with a ‘specific end date, eee ee ‘Automatically terminates. No notice requirement Note: Notice provision is important i ‘the lease s faulty’ created Notice provision > Periodic Tenancy Na natice > Tenancy at Wil Express Creation For > one year, wring required For monthly, no wring required it proper notice is not given by andlor or tenant, lease aulomaicaly renews year-to-year, SIX month's notice required It month-t-manth, ONE month's notice is required Implied Creation A: Two Regs. (@) Tenant keeps paying regular rent despite lack of agreement, AND (@) Lancs continJes to accept pay Implied Creation 8 ‘oral K tor TAY >1 year becomes petiole tenancy wi neice provision Implied Creation © Hoidover tenant + (a) + () ‘Common Law > No notice requred ther may end whenever Death of ether party ‘Statutes > $5 have reformed, rea reasonable notice Express Creation Contract for atl tenancy Implied Creation: Invalid lease for years without notice Provsion Reg. pay may imply Periodic tenancy Very similar to Tenancy at Wi Ends when landlord evits the tenant OR, (Created by holding over past term and Landlord elects to renew the lease, ‘without requirements af Perc Tenancy met ‘Allows lirited right to possession, so that atenantis not automaticaly in ‘wrongful possession when landlord breaches covenants, Protective measure Tenant Stuff Duty Against Waste Text Removal of Fixtures ‘The leave deiermies the Halus of fiures > tna provision, ‘Common Law Rule apples that landlord ouns fixtures besioes “vade heures Tad ndures are removable by a tenant so long as he remains in possession of the leasehold, proved they are capable of removal ‘without material injury tothe rea. nctthstanding his fale © resowe such right ina renewal lease Handler v Horns Common Lave if tenant remains as holdover, landlord ray assume an intent to rene Tor the same erm However > this may be: rebutted by obvious evidence contary to an iment to renew Commonweath Building Corp Ve Hrschfels| # Lessor No Lessor Acceptance Acceptance Duty to Pay Rent “Tenant is always responsibe for rent. fen he assigns or subleases, the privity of contract wil remain with him > thereby ‘opening him to lability of subenant or ‘assignee missing the rent paymentsLandlord Duties Implied by Lease (Actual Delivery of Premises. Lessor has duy to putlessee in JACTUAL POSSESSION against holdover tenants (but not strangers, ue to wrongtul ety) unless the lease ——— Even if landlord does not launch action against holdover or stranger. the "TENANT wight of ermressiy says ommerise possession may launch the american Rule action personally /alease only conveys legal ight to possession; landlord has na outy to Temove unlawful trespassers implied Warranty of Habrabilty Non Waivable by Parties. Without his, lease i illegal and unenforceable, Landlord MUST provide (per statute regs.) ahabitable premises for residertial leases. This isto protect agains structural defects, rater than criminal attack. (uriess related to structural defect) Ie) Notinstaling a lock. LIABLE AS FUCK. Obviously dangeraus detects require no knowledge. implied Covenant of Quiet Enjoyment Historically NOT an implied covenant, but now included| in ease, [Core ofthe lease, Gives tenant ably to possess and use the premises without interference from landlord Tort Liability (2 views) No labity for landlord to tenants ot quest for injuries resuting from detecive condition Exceptions i) Hulues danger about wich (Duy Landlords who have created, & 78) ancora knows oF should know about EXCEPT Patent Detects. ta defects open and abvious (i short raling), no babity (2) Premises lease for pubic use (2) Negligent repais by lancora Modern Rul: Landlord mast act as reasonable landlords under the circumstances [essentially basic negigence standard) responsible for, a known detective condition on a premises that foreseeably fenhanced the risk of ctminal attack or provides securty (gratuitously or by contrac) willbe eld lable fr Ijries ‘Simply andlor provides no secury ‘and has not created a defective cconelilan, NO LIABILITY Note: Always try to address if there is also an implied covenant for arrangements below. Read agains drater. Inconsistent provisions wil find agains. Express Covenants Base Fo Rent ‘Common in commercial leases; becomes a joint Enforcement> Recapture Clause Ittent als below certain %, either lancord or enant may revoke the lease (Duty of Continuous Operations Residential Leases - To minmize tsk of waste |Commercal Leases - Usual found in Base + 6 Jarangements and high-end mall Is implied? 4 Factors Kroger (2) Inconsistent express torm or substantial base rent? (2) Free assignabilty of ease? (3) Actively negotated by all parties? (4) Comtains noncompetitive provision? Thompson Development v. tyes to some ofthese, NO IMPLICATION.Eviction and Termination Proper conctusion| | Proper Evicton oflease Proceedings: Means of Wrongful Eviction (alation of Cav to Quiet Enjoy) “Actual Eviction ‘Constructive Evielion Actions by landlord which materaly breach the covenants of lease (quete enjoy, habitty). Physical removal om the premises, interupting the Tight {© possession. ie) Insaling high-pitched sound maker 24/7 violates the warranty ‘ot habitat, le) Changing locks and puting ‘al furniture on te fort porch Tenant Response ‘Tenant Response “Aion in Ejector Injunction to Remedy > Tenants superor right Removal of nuisance to possession can regain relurn construcive possession, possession. Suit for Damages > For ‘Suit for Damages > For material breach ofthe lease | | material breach ofthe lease Retalatory Eviction (Refusal to Renew) Landlord may not refuse evict because a tenant has aitempied t0 ‘enforce rights, parteulaly related to the Cov of Habiabilty Intent Difficult to Prove > Presumption that any eviction within (ONE YEAR of housing complaint or action is retaliatory Abandonment & Surrender ‘Abandonment - (Unilateral Atempt to Terminate) Lessee leaves; acs as an implied offer of surender. Landlord can choose not | __No taaccept and may continue to charge | “Accept rent Lessee gives up privity of estate even before acceptance (uniaterally conveys landlord interest back) “Dutt Mgate Landlord must make reasonable efforts 9 entertain potential Damages are on CONTRACT theory Sill Vacant ——--¥____ (ay charge ful value offease via) ' contact ! ci es L J New Tenant Aatves Landiord Accepts 7 Sigil TeSsee stil ay owe dus to 7 Giga! Lessee atiTmay owe dase [ "benefit of bargain” - Landlore can rent || | forlower rate and sueferifeence 1 Damages: original value of lease I MINUS “aie market value (value of 2nd | lease) ‘Surender - (Mutual Termination) A.conveyance of lessees interest in possession back ta the landlord betare end af lease by mutual ‘agreement, oth the remainder and the reversion merge ito ‘the landlor's fee simple‘Transfer: Sublease & Assignment Covenants Against Transfer Unless K othervise, leasehold freely alenable Covenants against transfer may be blanket or Tor cause" Does refusal need tobe reasonable? "Majoty: NO reason must be given; however, if one is given ‘the courts may scruinze itor reasonableness. Minority: Al retusals must be reasonable. {Alltransfets are PARASITIC {othe inal lease; a provision in the in al lease terminates if, the sublease or assignment is also VOID. ‘The Rule in Dumpor's Case ‘Note: br Chil v. Warmer ‘Brothers, > Landlord may recognize an atemptod Sublease asthe current {tenant granting a license to the new occupant WITHOUT recognizing or approving privity of K. ‘Common Law if (when a covenant against tanster ‘xt the landlord gives permission to transfer, the subsequent tansleree does not need permission > landird waives future vansterabity. MOST STATES HAVE REJECTED THIS NOW, “Sublease or Assignment? ‘Modem Rule, Look to the intent ofthe pares. Did they intend to ‘sublease oF assign? ‘Comman Law Rule Intent relevant it everything is wansterred > assignment Hf everyting NOT tanstented -> sublease Sublease: A tanster of less than all of remaining term. Paries Creates privity of contact. No piuly of este, ‘Sub-Landlord (Original Tenant) ‘Sub-tenant (New Tenant) Lessor (Landiord) Pesta Liana be Privity of Note. Lanalord may only sue the sublandlord, because ‘he lacks any privity with the ‘subtenant " Subanon (original tenant) maintains a reversion | in the property. I | Automatically determinable interest when the last_| day of sublease occurs | Consideration of Rent? Jaber Tunderijing K terminates, subtenariassignee aves no rent However, sae owes extra consideration for the agreement which ‘goes beyond the regular rent TA'ST gets benefit of his bargain’ Rent-> Only single contrac. with single payment, to single pary (andiord or TAIST):evidencies ront Consideration > Two contacts, separate payments, payments to Separate partes andlord and TA'ST), evidences consideration, Assignments: A tanster of ‘allthe remaining term, Paries “Assumption of Terms” (Creates both pry of ‘contact & estate ‘Tenant Assignor (Original Tenant) Tenant Assignee (New Tenant) Lessor (Lanciord) Wihtout Ass of terms, only Privy of Estate Landlord Privy of CONTRACT (contract?) Pr, . TenantAssignor <4-----~ CONTRACT Tenant Assignee Note, while landlord has ‘choice of paint, he may NOT double recover for rent luring same period C ~~ “Privity of Estate Consequences. — | Privy of Estate regards the transfer of duties which | ran with the and” These are only conveyed alongside a complete transfer of possessor right. | “Tenant Assignor has no further interest in and + Duty to pay rent + Duy oinsure + Duyyt0 repair, eteLivense - Freely revocable right to use another's propery for spectc purpose. Easems Incorporeal Hetectaments Easement - Non-tevecable right to use another's property fr spected purpose. Ensments CANNOT force a landowner to conduct ents. Duty of Dom “Type of Holder Repair - Holi in Grose "Apparienant Belongs toa person, independent of his Easement rns with and and belongs tothe necessary imerestiniand. | or | owner ofthe dominant ‘estate le) Dave can aways. walk across my yar. le) The occupants of Utity easements. 222 may park here. AND ‘Type of interest Negative ‘Afematve Grants dominant landowner a postive Fight to use the servient| ‘estate for aparicular purpose Prevents the burdened Tandowner fom exercising rights he otherwise would have fon his own land MUST BE EXPRESS ie) Light easement ie) Dave may ave across this gravel road. ‘rato of Frauds Consors "Any interest in land greater than one year shall be writen and subscribed by tl [Easements therefore need tobe in wtting to be express. Necessiy Ita severance of an estate makes the grantee's porton landlocked, an IMPLIED easement of nght af way als ‘conveyed from the grantor (now) servent estate, Easments by Panis are presumed not to create landlocked areas, UNLESS conttary intent is manifest. Grant ‘with knowledge of access issues and then ty to assert | implication ‘Cours reject such ‘arial enhancement necessity” > Note date of necessity is date of conveyance; IT DOES NOT | MATTER if better road has opened up. Easements by Estoppel improve and mainiain ther easement ited {0 improvements that are reasonably (Oral easements CONVERT to mere licenses, unless implication, prescription, or estoppe! apples. may be GRANTS or RESERVATIONS Reservation called ‘Derrogaton ofthe Couns are reluctant so. | | VERYHIGH standard. | | | "Stet ot imperious i ther way onto property inant Estatel Easement Holder Duly of Servient Estate Owner ‘Nom intererence Jers have an affrmative uy No affirmative actions may be require, Instead, these resict (bath airmative and regaive) the enforcement of rights the landowner would othenvise have, or the easements intended purpose. Express Easements Express Grant Beoress Reservaion Creates a limited right by means of "Deed of Easement" Right retained by Grantor when conveying afee simple (subject to easement) to Grantee Most common kind of easement. Grantor land becomes dominant estate (Genet the GRANTEE) (Genefts the GRANTOR) No Strangers Rule I I Mary states REJECT this rule, the parties there Easements by Implication ‘Quasi Easement (Prior Use) (4) Prior separation of tie (and once united) nesetS” | (2) must appear tat betore separation, the use gvng Hse 1 ‘easement was long continued and permanent (continuous and ‘apparenit; AND (2) Easement shall be necessary tothe proper enjoyment “reasonably necessary" tats enjoyment or convenient Note. Here, "veasonably necessary" really means “reasonably ‘convienit to benefited land, ! Inverse relationship between continuous and apparent & [feasonable necessity. The more necessay the easement hess cominous and apparent the use needed have been.) ‘ely on Easements by Prescription (Adverse Use) Tandlord wil be prevented ‘rom enforcing revocation of license ithe induced reliance that arrangement was easement. Two Elements (2) Representaion, express or implied (statement of fac) (@) (Resonable) Detimental reliance. ie) Landlord sees people spending tons of money ater verbally teling tem they coud build a ditch, ithe later means 1o ake the ich for his avin use, he wil be estopped trom asserting his claim ‘Very Simlar to Adverse Possession, Minor Diferences (2) Actual use-> person claiming easment must have used the property (2) Continuous > Reters to mindset of hostle user, requires that hey use the land consistent withthe vn needs, rather than 24/7 use, (@) Hostile > Must not be using the land under a icense or permission (PRESUMPTION in many staies thal use has been hostile: landowner has burden of proof that he permitted i); AND (4) Open & Notorious -> A person coming tothe property would recognize that this could be used as an easementasserting his claim that this could be used as an easement. Relocation of Easements TMajoriy Rule: easements spectied path, tnen relocaton by servient landovmer requires the consent ofthe ‘dominant landowner Minotiy: Burdened aver should be able to relocate right f way, so ong as itis done at his expense and provides ‘equivalent access. ‘Termination - Eight Means Express Terms Merger Abandonment Cessavon of Purpose Express release Estoppel Adverse Use (Goad Faith Purchaser Express Terms: Ifthe terms ofthe easement specity a date of ‘eonaion on whic ends In Gross: If lacking "hers and assigns" then terminates with the death of holder, Institutional Easements: End when Institution, seh as church, eases to exit ‘Cessation of Purpose ‘When the purpose of the easement ceases, the easement terminates, te) Gas station used back lot for drive access; puts up concrete wall, people can na] longer deve > easements terminated, Transfer of Easements Easements In Grose People cannatintetivos convey an easement ngross, However, ican be inheriable includes "and to hes" Corporations are typically able to convey easements in gross (or things lke tity services) ‘once terminated, an easement MAY NOT be revived by a future landowner. Merger Ifthe owner of the dominant estate purchases the servien estate the fees merge into a fee simole absolute No easements against one's set Express Release ‘Voluntary termination, If dominant landowner transters the ‘easement dack to serient landowner Via his ‘consent, twill operate as a merger and terminate the ‘Appurtenant Easements ‘Transfer withthe sale ofthe land, Owner atthe dominant estate wil alvay's hold the appurtenant easement unlit is terminated exoressly. “Abandonment Mere non use never enough. Non-use + intent (1) Non-use of easement; AND (2a) Evidence of intent to abandon “clear and convincing evidence’ ‘Good Faith Bona Fide Purchaser (8S ONLY Express Easments) Generally. purchase of land vthout actual or consttustve notice of an easement wil Some states require all easements 0 be recorded, even if originating trom equitable sui Some states hald recording acis applicable to all express easements, and purchasers of ‘Servient estates are charged with ate ‘search, lan express easement is unrecorded when ‘good faith purchaser without notice ‘Acqutes the land, the easements, terminated Estoppel Induced Reliance Ht dominant landowner’ conduct would evidence an intent o abandon, and the servient landowner detrimnetaly relied an this misrepresentation, the easement wil be terminated by estoppel (mote accurately the dominant landowner ‘may no longer assert his easement) ‘Adverse Use Ifthe servientlandovmer interferes with, obstructs, oF otherwise burdens the dominant landowners easement for the requisite petiod of tme, he wil reacquire the interest Some states recquire 20 years lake AP: States tke NC only require SIX YEARS. ' : sd Easements Spiit Rule (00 NOT TERMINATE) p61 Implied, precription, quas-easment, af estoppel ‘ae UNWRITTEN EASEMENTS: and therety NOT subect to recording statutes. ‘A good faith purchaser does NOT extinguish an Uncecorded easement other than express, Expilt termination necessary.Covenants and Servitudes To require atfimative conduc bya landowner, corivactual methods need tobe ubized. Covenant or Equitable Servitude? Each can be characterized asthe other; reef sought dictates what should be argued ‘Test: Look to privy o relief sought by plant: ‘Seeking Damages? > Covenant (legal device) ‘Seeking Injunction? -> Equitable Servitude. (equitable device) Enforcement Whom against? > Covenants may only be asserted against the Tandowner. Cannot be asserted against his famiy or tends, even it ‘they are breaking the rules. wnat? > Damages, legal concept. (Servtudes -> junction, equity) Wh by2: Coventants > Parties in Privy. (Servs -> partes with noice) ‘see Neponsit Property Ouners Assi v Emigrant Savings Bank “Covenants, Generally contractual arrangements which tun with the land andl an require certain affirmative ‘acts by the landowner Like an easement, they may also be used to restct actions Restrctve Covenant > You cannot paint house colors other than back, red, blue or green. Afemaive Covenant > You must ep your lan mowed below tree inches during Equitable Servitudes, General ‘Contractual fareaton in equity. Courts of England didnot recognize the concept of vertical pry Instead, in equity, a servitude was enfrcable via injunction so Tong as a grantee had notice ofa restictve covenant Real Covenant Elements (2) intent (2) Intent for covenant to run with the land (2) Touch & Concern the land: AND (2) Pry of esate ‘the agreement to run vith ‘Should be easily sats (@) Touch and concern Highly dependent on the cont ‘community. Going ater 38 ‘can show Privy | @) Privity of Estate Requires both HORIZONTAL and VERTICAL privity Horizomal-> Inia partes creating covenant must have been in rantorgraniee relationship or otherwise have "simaaneous interests" when the covenant was created ie) Development company -> First vmer. (Ai > Bi) \Vertcal > Proves that enforcers suliciently connected to land. Must show a line of succession ttm inal pares to present partes Passessory Vertical rity: Al-> Al, A> Ail, A & Allin piv Ver tiv BY ASSIGNMENT. A developer may assign is contractual interest inthe enforcement of @ covenant inia& successor, such 138 a Homeaviner's Association, vie acts as an agent ofthe common goad forthe community Both intial parties must have intended Test: Does the covenaniiservitude benefit the ‘community as a whole AND (sa that i) improves ‘the value ofthe land? Ex) Coastal community may be able to get a dack fee a8 covenant, bul a retrement communiy ‘cannot force finace of football stadium, Equitable Servitude Elements (2) Intent for covenant to run with the he land, fan ed (2) Touch & Concern the land: AND @Natice Tana? ext of the Going ite Injunction Cannot prove Privy (@) Notice Ether actual or consiructve. Most real estate companies use the recorcing system to guarantee notice. Actual Notice > Directly told during the tansaction about the nature ot the covenants, [Constructive Notice -> File a copy ofthe covenants in the record of deeds and then “incorporate [it] by reference” in any deed given nom a certain subcvison‘Must a Developer Include Covenants in ‘a Different Phase or Sale? (@) Look te Contract Does the text gve carer landowners a right o enforce covenant against later phases or the developer? Statue of Frauds No (@) Pait Performance (exception 2) Did both partes pay, accept, and keep the covenant? Actve debate. Some scholars say NO PP exception. ‘As a practical mate, twil be nigh impossible to show a developer performed tneir part of covenant (as they have no duty ino writing) (@)Estoppel (exception 2) Did the developer induce the reliance of the partes by promising ether covenants? BIG NOTE: Amisconcepson by the plaints that covenants wil epply everywhere is INSUFFICIENT There must actually have been an ilusory promise by he grantor. No Developer NOT bound to include otrer easements es ‘es ve [Termination of Covenant or Servitude (2) Express Terms - Coniractual language limits the covlsery ta certain period. 0) “Easement unl 2027 unless renewed by property owners" £2) Two-thirds of propery owners may discharge. (2) Merger - Single owner acquires every lt subject to the covenant. ll inetests merge and terminate covenant of servitude Possibe in theory; very rare in practice (2) Release ~All owners in privity of covenant agree to terminate. Does not require an express provision for Unanimous release. (a) Prescription - Adverse or continuing violation ofthe covenants vill wave the rights of the existing landowmers for that specie covenars HOWEVER; tivil breaches are insufficient to void Soe Cowing v. Coligan. (6) Estoppel - Simiar to prescription except person doing the violation gave notice to other landowners first, did not recieve objections (which INDUCED ris RELIANCE) £) Covenant only for single family dvelings. New ‘guy sends out newsletter saying he wants to bull a ‘duplex. Nobody responds. Bulls duplex. People sue, Bulder wine > estoppel (6) Transfer to Bona Fide Purchaser Incredibly rare to do "incorporation by reference” into deeds > ceates duty of constructive noticeConveyancing Sale of Land The vansier of derved tes. Contact Financing Tile Searched ‘Signed Closing \ 4} : Taulabe Conversion immediate upon signa the games bens the ra ot 2 ess ues the coma cihewise suas) (caveat emptor) Technical not recuired but grantee is chargea vith consiracive noice cof any defects inthe record Legal Transfer of Tile Mastachussets (min) ‘Vendor nas risk of loss, Damage destoys consideration; ends K Closing ofthe deed conveys the possessory interest Merger of Contract Tmaplied Covenants ‘of Contract Covenant of Marketable Tile Every land sale contract impliedly marketabe tie, ree from detects; can be expicily removed kinds of Deeds Quitelaim Deed - Contains no uarantees as to marketability ‘To convey quitcaim, seller must note no Covenant against Mistatements Warranty Deed - Contains express "No misrepresentaions about ‘quarantee of (quarantee that the tle conveyed ‘quality of and marketable tte in| as tree ofall encumbrances. ‘the contact These allow escape itbad news intitle search, Deeds Signed, sealed, delivered (Primary Components of a Deed (Necessary Formaliies of Conveyance 4) Premises clause > deserbe prop (2) Habendum clause > describe kind and quality of deed (s) Execution clause 4) Warranies - Not Quite (2 Signed ‘Marks intended to make document operative. Requires notarization. (2) seates ‘Mader contracts use parenthetical, wt intials. Note, stature of limitations is longer for sealed instruments. (Covenants of Warranty Deed (2) Delivery & Acceptance Delivery "pus it bevond all power of the vender to revoke" ie) merely ‘Signing, puting in draver, and eling other person is insufficient; Giving to an agent aso insutfiient These convey right to monetary DAMAGES: note specitc Performance. (2) cov ot Seisin “Grantor promises he owns all that he fs conveying (2) cov of Right o Convey “Grantor promises he has the right to convey the tle (2) cav Against Encumberances “Grantor promises there are no serviudes or lens onthe property (4) Cav of Warranny “Grantor promises to defend the ate against any aval claims of tile asserted by others Even fa deed is recorded. it ‘wil NOT be a valid conveyance iit was never delivered Innocent party shit out ot ck fr lad Buti they were ‘sophisticated enough fora waranty deed, they can sue for damages — Is the K enforceable? 1) Necessary Terms =Panies Property Price 2) is twriten? Written Contract ves. Satisies SoF. (Part Performance for Land wt usually turn up when grantor decides not to sel and tres to convert alease-to-ovn into a mere ease. Three Elements (2) Grantee mainiains possession (2) Grantee makes payments which ‘are accepted by the Grantor AND (2) Grantee has acded futures oF ‘otherwise improved the land Estoppel Induced Reliance ‘Should probably go above Part Performance Escrow Deeds Deed placed inthe trust of ati party if conlton of escrow is unmet, there is no delivery and theretare no conveyance of tile Device ta interrupt delivery ofa deed, contingent onthe performance of a concttion Deeds held escrow may be recorded (to satisfy race statutes), but this daes not convey seisin tothe purchaser Bona Fide Purchaser? Regardless of recording, a deed never released trom escrow NEVER transfers tile to good faith bona fede [purchaser > even if his purchaser records ot ‘encumbers with mortgage or easements ‘All encumberances or conveyances beyond the eserow fe VOID,Basics Who holds te prior to completion of payment? Financing Types Mongage v instalment Installment Contracts T Mortgages: i ‘Several Types of These | Purchase Money Mortgage | Pure installment Contract | Equitable Mortgage i ‘An nstaliment contract is treated like a morgage (ontions to reschedule payments) ater liquidated damages become Buyer conveys bath some cash] PLUS a mortgage inthe vendor's name onthe propery Buyer pays fll purchase price to vendor and acquires independent financing ‘thvough mortgage lender, ‘Stretches payments between the ‘omirac signing and closing for many years; sometimes as long ‘who securtize Ioan with’ | Like a mortgage but without | as 20. No closing undl complete a damages Interest inthe property, | independent margagor Buyer Buyer Vendor vendor (Conder Tile Theory State) | (Unless in Tile Theory State) defaulted o (2) Foreciosure (a) Pubic sale ‘Statutory and Judicial Protections (2) Equitable Right to Redemption Right of mortgagor to purchase the land even i he had Cannot immediately seize propery alter a detauted payment ‘Statutory & Judicial Protections Due to harsh nature of forfeture, special rules (2) Notice of Detaut and Acceleration Notice of default or acceleration must be specied, along with the requirements to cure, and time limit todo so. Cannot declare a foreftre, but must specty way to prevent forfeiture (2) Waiver of Vendor's Rights ‘Acceptance of any late payments constitutes a waver of the right o enforce frfekure praceedings nthe payment. Proceetings Protect ‘Alter foreclosure, mortgagee does not ovm the property, but can merely force ts sale othe public with a prionity on debts. (4) statuory Right of Redemption ‘Common out west. Gives right to pay fll value of public sale Price to morigagee and recover land within one year of sale. Tille Theory States - Conlinue la evogrize amorigage as @ complete conveyance ofthe interest in property Lien Theory States - Though uses deed, conveyance is only a Ten to secure a deb (8) Purchasers Right to Redeem Paying fll price ends the contact. (Previously, vendor could maximize interest by not allowing premature completion) (4) Right to Reinstace May re-instale contract by paying only the past due installment (invalidates clauses requlrng full payment or dela)Tile insurance (1) Covenants for Warranty (3) Recording Acts (@) Tite insurance (@) Adverse Possession Single-premitm insurance policy which ‘quarantees the mits ofthe policy Means of Tile Assurance PROBLEMS: Can only grant damages ~ Limited coverage «Solvency af Company “American Recording System (Grantor-Grantee Index) General: To ensure that a person can discover problems with his tile before closing the deed, ‘3 bona fide purchaser of land with an un-ecorded encumberance isnot subject to the unrecorded defects However, the converse is that a purchaser is charged with constuctve matic ofall thats recorded, Torrens Tile Exists to protect grantees and morigagees trom double-conveyances. Indefeasibe tile created through a quit te Acton. Extinguishes all interests 0! any past Recording Acts ONLY Apply to Derived Titles - An Original Tile will defeat a party; essentaly creates a brand new, perfect Tecorded Derived title ‘deed in whomever had the best ile atthe ‘acton, Firat Was the senior conveyee's deed recorded prior to tne closing ofthe second deed? Nothing can encumber a Torrens tile unless was properly put on tie itself through a judicial proceeding = NO ADVERSE POSSESSION No good faith purchasers Note: The majoriy ot states requite good faith purchaser for Eonsideraion Perfect Tite Assurance. “Second) Was i recorded ih both the Index AND grantor record? Colorado allows good ‘atrrccbtoerer. | Spin auhoriy: Some states require the recording in both. Purchaser has duty to return to clerk and make sure Most states wil not cut off recorais proper Paid interest with ree Interest due to ecuity First Owner Protected by the Recording Act ves. Ne. | Pare Notice ace Nice ure Race Wastate (2) No notice at closing (1) No notice at closing; AND] Pure Race changed its dy Fist torecard ete IF junior conveyee had no ° (1) Fist 0 record recording aca "Ris clans superorto re “Sor nonatce a tne ot Only hee states have this oe elo Senin conveyee EVEN IF Closing, AND be te 10 one be regs vis, caneyance ‘senior conveyee subsequently record. Hardest on junior “9 applice records st conveee, ‘id junior conveyee have notice? ‘Actual Notice: Iunior conveyee was explicitly aware ofan adverse claim, > actual nace, ves Di junior Inquiry Note: Form of corstuctive nace, which charges the conveyee| “(RN) —™} Eonveyee record ins me] frst? to inspect the premises and determine f another is exercising claim -Record Notice: Constructive notice trom record, (Already accounted for) ‘Can senior conveyee assert original ttle? ‘Should senior conveyee be estopped? (or lacks rah) itorignal conveyee has been on property for twenty years, ne may asser origina tle va adverse possession (Original tes are superior to derived tiles even ‘unrecorded, Junior Conveyee Protected by Ht adverse possessor induced Recording Act reliance that junvorconveyee actualy had land, then ESTOP?“averse Possession of Land (Generally) Remember: I takes CAHONES to steal somebody's property ‘Adverse possession must be (¢ cominuous ‘A- actual He hostle ON -- open & notorious ES - for enumerated span, Adverse Possession of Land Color of Title > 7 years Mere Possession > 20 years Limitations on Adverse Possession Future interests» Sol does not run agains future interests because only people with present ossessoryinlerests may assert a claim. ‘Co-Tenancies -A co-enants possession isnot adverse to non-passessory co-enants unless ‘ihe attempts an ouster Mineral Interests If subsurface rights have been severed from surface rights, SoL will not run against subsurface oumer (no wsblly), UNLESS the subsurface ovner begins interfere Legal Disabilities - Extra time given to people who lacked legal capacity while the statute was ‘alg, Usually a technique for depriving rightful owners of thelr intrest, ‘Adverse Possession is also the last, line of defense for people whose ties have detects, ‘The law provides aternate colar ot ‘We AP Tacking of Adverse Possession Possessor Tacking > A person who succeeds a brior adverse possessor (continuous, with consent of other hostile possessor the years of the fst possessor TACK onto the second le, Ahas shop that uses adjacent land of C for 12 years, 8 buys ‘tom A.B needs to adversely possess fr ony 8 years fori. (wer Tacking > Ifa ror landowner filed to assert a caim, his negient lack of action vansters| ta new landowner by TACKING, fe) B buys land from A, C has been on A's land for 15 years 8 has five years to assert te