BUNDLE OF STICKS (1)Right to possess the property; (2) Right to transfer property; (3)
Right to use/occupy property; (4) Right to exclude others property
ANIMALS/CAPTURE:
First in time takes ownership – i.e., capturing land is to who discovers it first.
First to Capture wild animals takes ownership. Rational: (1) creates competition to eliminating
bad animals (foxes) and putting food on table (ducks); (2) creates certainty of who owns.
(Pierson v. Post (fox case) and Hickeringill (duck case)). Wounded or Trapped: must be
mortally wounded or trapped so that capture is virtually certain. If a trade custom prevails, it
will be used to determine who owns animal (Ghen v. Rich (whale hunting case)).
Cannot interfere with business of another. (Hickeringill (duck case)). Can drain oil water under
other property, unless negligent to cause harm to other property or against the law.
Acquisition By Creation: when one person adds to the property of another either labor or labor
and new materials. Intellectual Property includes copyrights, patents, and trademarks and also
property in a persona. COMMON LAW: to avoid monopoly and encourage competition the
CL allows copying and imitation of ideas, as opposed to their expression. (Cheney Brothers v.
Doris Silk Corp.). Unless restricted by statute… OR Courts will protect against unfair
competition – (International News Service v. Associated Press) Body Parts in CA are
surrendered when a surgery is conducted. (Moore v. Regents) – Body parts are market
inalienable—cannot be sold or used on market.
FINDERS:
ABANDONDED PROPERTY: is owned by whoever claimed it next. (Hawkins v. Mahoney—
prison case). ACQUISITION BY FIND: An owner does NOT lose title by losing property,
but a finder has rights superior to everyone but the true owner. In Armory v. Delamire—
lost jewelry, chimney sweeper gets jewel. RATIONAL: it protects owner who entrusts to
another; creates certainty; protects finder and encourages honesty; rewards labor in returning a
useful item. To capture--must be physical control and have intent to assume dominion.
Constructive Possession: landowner has constructive possession of the objects located under
the surface of land even if unknown. (South Stafford v. Sharman pool boy cleaning finds ring).
Trespass Finder: property found is rightful owner’s property.
Finder is Employee is an AGENT for owner and has a duty to turn over found property to
“employer”. FOUND UNDER SOIL: If object is found under or embedded in soil, it is
awarded to the owner of the premises not the finder. (Elwes v. Briggs—boat) INSIDE HOME:
Objects found inside private home go to homeowner, HOWEVER, in Hannah v. Peel if owner
has not vested or moved to home he is not in constructive possession of unknown objects.
LOST: is property that the owner accidentally and casually lost. LOST property goes to finder
because lost property was accidental lost owner unlikely to know where it was lost and unlikely
to re-find property. (Bridges v. Hawkesworth lost package on floor too finder--not store owner).
MISLAID: is property intentionally placed somewhere and then forgotten—MISLAD
property goes to OWNER OF PREMISES. Because true owner is likely to retrace steps and
remember putting item down at location and will return for it. (Mcavoy v. Medina—misplaced
wallet to store owner—promotes return of property to rightful owner.
ADVERSE POSSESION (BROWN v. GOBBLE)
Adverse or Hostile: Was the possession of the disputed property against the right of the true
owner, and inconsistent with the title of the true owner for the entire statutory period. Actual
Possession: The disputed property was used for enjoyment, cultivation, residence or
improvements for the statutory period. (is sufficient when the property is used in a manner that
is ordinary and natural given the nature of the property (HOWARD v. KUNTO—summer home
used as it would be qualifies.)) Open & Notorious: Possession of the disputed property was in
such a manner as to give notice to the true owner that the property was being claimed by another
for the entire statutory period. (minor encroachment not enough (Manillio v. Gorski—15
inches not “open & notorious”)) Exclusive: Aside from the trespasser, the disputed property
was used only by the occupant and others were not permitted to use it or claim ownership
during the entire statutory period.
Continuous: Disputed property was enclosed, maintained or cultivated during the entire
statutory period. TACKING: Chain of privity with each other -- successive relationship. Each
prior possessor in the line (chain of title) must have met elements, except for time requirement.
(Gobble) Exception: Permission in the middle may break chain. Banks in foreclosure---does
foreclosure meet the adverse possession elements. Claim of Title: Disputed property was
claimed without actual title ownership during the entire statutory period. What was the person's
state of mind (subjective)? Color of Title: (easiest) Faulty document that was wrong or
fraudulently sold property. Legal document that is faulty, some states allow you to obtain
adverse possession sooner. [Not necessarily a trespasser involved.] get what’s on Title, if more
than more. RATIONAL: to reward those who use property productively.
1. Mistaken Trespasser (some states)
2. Hostile or Knowing Trespasser (some states) (Maine)
3. For exam: "States differ on the state of mind; most states don't care what the adverse
possessors state of mind is. … satisfies this element."
DISABILITY OF OWNER: if disability (incapacity, insanity, Prison) exists before adverse
possession SOL begins, it is tolled until disability ends, plus statutory period. If disability ends,
SOL starts, or if disability starts after the adverse possession starts, it will NOT toll.
ADVERSE POSSESSION OF CHATTEL: can obtain title to personal property by adverse
possession. DIFFERENCE: real property is open and notorious, CHATTEL IS NOT.
NEW YORK RULE: holds the SOL until owner of stolen goods knows who has the goods
and makes a demand, which is rejected. DUE DILIGENCE RULE: SOL does not run as long
as owner continues to use due diligence in looking for them. (O’keeffe v. Snyder—Painting
case). TROVER: is to recover value of π’ chattel that ∆ had converted. Inter Vivos: during
life when donor is not under threat of impending death—is irrevocable. Relative hardship
doctrine: A balancing test where an equity court considers a number of factors to determine
the potential harms to the parties with and without injunctive relief.
Causa Mortis: gift made contemplating approaching death. Revoked if recovery from
illness.
RIGHTS OF OWNERS: (1) Right to Use as owner sees fit; (2) Right to Transfer, but limits
on restriction on alienability i.e., Davis v. Davis); (3) Right to Exclude others and right to
exclusive use/possession (See, Jacque, owner excluded truck); Limits on exclusion power:
(A) State v. Shack – The right to exclude cannot be asserted to prevent the well-being of
another person on your property. Human well-being more than property).
GIFTS OF PERSONAL PROPERTY: a voluntary transfer of property w/o consideration.
Promise to give in future is not a gift. Must meet three requirements:
INTENT: Must intend to pass title presently; future gifts are subject to Statute of Wills.
DELIVERY: (1) Actual delivery; (2) constructive delivery when impracticable to actually
deliver; or (3) Symbolic Delivery– chattel to large, symbolic delivery is permitted….
Rational: (1) Ritual—legal significance and finality of act; (2) Evidentiary; and (3) protective.
(Newman v. Bost—life insurance policy); (Gruen v. Gruen—painting case (symbolic)).
ACCEPTANCE: Law presumes acceptance, rebuttable presumption.
CURTESY: A surviving husband's interest in deceased wife's (inheritable) land; He received a list-estates
ONLY I kids/issue. Dower and curtesy survive today as Elective or Forced Share. DOWER: A surviving
wife's interest in deceased husband's (inheritable) land. Only a life-estates with 1/3 share of his freehold land
CONCURRENT OWNERSHIP: There are three forms of concurrent ownership.
(1) TENANCY IN COMMON: two or more persons w/ no right of survivorship; when on tenant dies her
interest passes to heirs and devisees. Presumption for TIC when not husband & wife. Can sell, devise or
dispose of undivided share in same way as sole owner. Equal access. (Rent distributed by % of
ownership). (Warehouse case Spiller – can use whole…
(2) JOINT TENANCY: two or more person own the property with a right of survivorship; when one dies
the survivor(s) takes all; can be severed/terminated unilaterally; not devisable/inheritable, to create a
Joint Tenancy: Four utilities must exist: (1) TIME – must vest at same time. (2) TITLE – must acquire
title by same deed or will. (3) INTEREST – Must be equal. (4) POSSESSION – right to possession of
the whole. (Swatzbaugh v. Sampson—boxing possession of the whole)
Deed MUST include With RIGHT OF SURVIVORSHIP” – Magic words
TITLE THEORY STATES: Destroys Joint Tenancy if by one.
LIEN THEORY STATES: Does not destroy Joint Tenancy. But controversy re surviving JT duty to pay off
mortgage. (Harms v. Sprague) (Riddle v. Harmon) wife can unilaterally terminate JT.
Account of Third-Party Rents: One JT may lease the entire property but must provide rent share to other
JTs. A co-tenant must account to other co-tenants for rent received from third parties but can deduct operating
expenses when calculating net proceeds. Third-party rents are divided based on the ownership interest of each
tenant. No consent of co-tenant required–profits per share. Swartzbaugh v. Sampson – boxing ring in
vineyard); and (Spiller v. Mackereth) warehouse case.
JOINT BANK ACCOUNTS: survivor takes whatever sum is remaining.
(3) TENANCY BY ENTIRETY: Husband and Wife, w/ right of survivorship & cannot be severed & debts
of one. Same four utilities PLUS fifth for MARRIAGE (Swando v. Endo)
RIGHTS & DUTIES OF CO-TENANTS: Right to entire property and cannot exclude other co-tenants. If
one CT in possession, no duty to pay rent to other CTs. Encourages productive use of property. OUSTER: If
one CT ousts another CT, must pay the ousted CT share of the reasonable value of the property. – Defined:
depriving another CT the right to possession, like changing locks. REMEMDY: bring suit for reasonable
rental value. (Spiller v. Mackererth – warehouse) REPAIRS: cannot compel contribution; will set off the
amount (over and above her share) spent on repairs at partition or sale of property. Necessity: Reimbursement
of Reasonable costs. IMPROVEMENTS: cannot compel, but improvements for the added value (ONLY)
will be provided to improver.
PARTIION IN KIND: Court order to separate tracts if feasible, each own in fee simple. If not equal in
value, court will order OWELTY, one Tenant pays other difference in value. (favored over sale)
PARTITION SALE: If physical partition not feasible, court will order the sale of property and divided
equally among the co-tenants. (Delfino – garbage case)
ELECTIVE SHARE: The Court will give the surviving spouse the option of taking what decedent provided
for in a will or under intestacy OR electing a share of decedent's estates provided for by statute. ---Statutes
usually provide around 1/4 to 1/2 of decedent's property in FSA. RATIONAL: We don't want people to
disinherit spouses.
COMMUNITY PROPERTY STATES: Property earned during the course of a marriage is owned equally
by both spouses. Death and divorce are two instances of division of property. Doesn't matter if title is only
in one name, if the purchase occurred during marriage, it is both spouses’ property. Community property is
everything that is acquired during marriage, including earnings. (Permissive, Ameroliative, Affirmative)
LAND TRANSACTIONS:
Warranty Deed: Warrants all defects in title, whether they arose before or after the grantor took title.
Special Warranty Deed: warranties only against the grantor's own acts but not the acts of others. Thus, if a
defect is a mortgage on the land executed by the grantor's predecessors in ownership, the grantor is not liable.
Quitclaim Deed: Contains no warranties of any kind. It merely conveys the title the grantor has, if any, and if
the grantee of a quitclaim deed takes nothing by deed, the grantee cannot sue grantor.
PRESENT COVENANTS -- relate to the condition of the property at the time the Deed is transferred, and if
they will be violated, they will be violated in that moment.
Covenant of Seisin: Seller promises that seller legally owns property.
Covenant of Right to Convey: Seller promising seller has ability to sell property.
Covenant Against Encumbrances: Seller promises that the property does not have any unusual restrictions,
no third-party rights to property. (Frimberger—Levy case)
FUTURE COVENANTS -- Will occur at some future point and then triggers SOL.
Quiet Enjoyment: Seller promises no third-party will appear to challenge ownership, and if they do, Seller
has to help defend Buyer.
Covenant of Warranty: Seller promises that he/she will defend and compensate for title issues in the future.
Covenant of Further Assurances: Seller promises to show up in court to provide evidence to the Court.
TRANSFER OF PROPERTY: (1) Present Intent; (2) Delivery (Rosengrant v. Rosengrant); and (3)
Acceptance. Physical delivery is the best evidence of present intent, so you need clear evidence to counter
that. Doctrine of Equitable conversion: You only have equitable title to the property, the buyer is
responsible for the sale and must complete the sale, even if property is damaged or burns down. Retention of
Deed by grantor disproves intent.
SOF: Must be in writing, Property Description, Parties, Words of Conveyance, signed by seller,
terms/conditions (price). Exceptions: Adverse possession, estoppel, partial performance—possession;
substantial improvements; and payment (in-part) (Hickey v. Green) partial payment + act validates over SoF)
MORTGAGE TERMS: Purchase money Mortgage, Deed of Trust, Promissory Note, Amortized Loan,
Deficiency Judgment, Installment land contract (Sebastion v. Floyd), Statutory right of redemption, Subprime
(MA case), Equity of Redemption remedy default, Mortgage, Power of Sale
Duty to Disclose: implied promise not to false statement. Minority: Caveat Emptor: Buyer beware--need to
know what you're agreeing to. (Stambovsky) Majority: seller liable for material false statement and
nondisclosure and latent (hidden) defects after closing, even if buyer conducted inspection. (Johnson v.
Davis—must disclose leaking roof.. if not raining buyer wouldn’t know if not visible).
IMPLIED WARRANTY OF QUALITY: Common Law: Conveyances of real property carry no implied
warranties of quality or fitness--caveat emptor again. (New Construction ONLY).
LANDLORD-TENANT:
Term of Years: There will be a specific end date.
a. Tenant/Landlord do not have to give notice; unless lease contract so specifies.
Periodic Tenancy: Automatically renews (month-to-month). It will renew unless a proper legal notice is
provided. ----- 6-months of more---6-months’ notice is required before end of notice period. Under 6-months,
it just has to match period (3/mo auto renew, you must give 3/mo notice).
Tenancy at Will: If the lease provides that it can be terminated by either party, it is necessarily at the will of
the other as well if a tenancy at will has been created. Modern approach: most states state you must provide
30-day’s notice. (Garner v. Gerrish—Determinable Life Tenancy)
Tenancy at Sufferance (holdover tenant): Tenant remains in possession of property after lease terminated.
Warranty of Habitability: Rule: Premises is fit for basic human habitation, in residential leases ONLY.
Remedies: Move out & terminate Lease; Repair & Deduct from future rents; Reduce/Withold Rent in Escrow
Account; OR, Remain and affirmatively sue LL. (Hilder v. St. Peters—broken window and not-habitable –
implied in ever residential lease) (NOT WAIVABLE—ever.)
FAIR HOUSING ACT: Make, print, or public advertisement that indicates an illegal to rent,
sell or negotiate because of race, color, religion, sex, family status, or national origin. Makes
FHA applicable to individual with disability needing reasonable accommodations.
Exemptions: single-family house sold or rented by owner, as long as … (3 or fewer homes);
Rooms or units in dwellings for no more than 4 families where owner lives in one (owner
occupied).
Review the fact pattern and analyze each option below:
1. Breach of Covenant of Quiet Enjoyment which equals a Constructive Eviction
2. Illegal Lease – violation of housing codes at time lease was made.
3. Implied Warranty of Habitability (RESIDENTIAL PROPERTY ONLY)
COMMON LAW LANDLORD DUTIES:
LL: Duty to disclose latent defects; Duty to undertake repairs carefully; Duty to maintain
common areas; Duty to maintain furnish dwellings; Duty to not fraudulently misrepresent
status of property; and Duty to abate immoral or illegal conduct on property controlled owned
by LL. Sommer v. Kridel –duty to mitigate damages and reasonable efforts to re-let. (Hannah
v. Duesh—LL only duty to deliver the RIGHT of possession.) American Rule: Must only
deliver legal possession, no actual possession required; tenant responsible for eviction of
holdover tenant. England Rule: Must provide actual possession, failure to means tenant can
charge landlord reasonable costs for relocation, and LL must evict holdover Ten. LL duty to
maintain common areas and is responsible for other Tenants in Common Area.
SELF-HELP – Berg v. Wiley – LL cannot use self-help to regain possession.
ACTUAL OR CONSTRUCTIVE EVICTION RULE: SING—Substantial Interference,
Notice to LL (LL fails to Act wi/in Reasonable Time); and Goodbye (Leave Reas. Time)
(Prosecutor case)
Assignment: UNLESS lease prohibits, may freely transfer interest in property.
If tenant transfers entire remaining term: Assignment, and that creates Privity of Estate with
assignee. Privity of Contract does not exist between LL and assignee. Liability carries if
sublet by tenant, still liable until term ends. (Ernst v. Conditt—Assign v. sublease look @
intent of parties) Must transfer all interest. RELEASE BY LL will terminate liability for Ten.
Tenant Duties: Pay Rent, Occupy premises, Repair, and avoid voluntary/affirmative waste.
Rent: tenant duty; dependent on LL performing its duties.
TENANT BREACH: IN: sue 4 Evict or Sue 4 Rent Owed; OUT: Surrender, Ignore, Re-let
CO-OP-can exclude and owned by corporation. Nahrsedt – restricted use on cats-equal
application –ok) EXCEPTIONS: law or policy, unreasonable to the whole (unreasonable
test to lessen litigation).
HOA: Can ask for release from neighbors, abandonment of enforcement, changed conditions,
restriction no longer serves original purpose.
ZONING: Legislative control. Must have comprehensive plan. Zoning appeal boards. (1) Is
it constitutional, comes through state police powers; to be authorized we use rational basis
test – unless against fundamental rights (strict scrutiny). Public health, safety and welfare.
Rational Basis Test: (1) Legitimate State Interest; and (2) rationally related to that interest.
Strict Scrutiny – Compelling state interest and narrowly tailored. (Euclid – Zoning ordinance
valid exercise of police power.)
PA Northwestern Distributors, Inc. v. Zoning Hearing Board: An amortization clause
which affects lawful land use constitutes a “taking” under the Pennsylvania Constitution.
Amortization: over a specified period of time nonconforming use must come into
compliance with zoning restrictions, failure to do so will result in business shutting down and
being prohibited from conducting business. (90 days ok, generally).
Area Variance: allowed to erect a structure in an area not authorized under the zoning
restrictions. (1) Undue hardship that has not been self-imposed; and (2) That the grant of the
variance will not work diminution to neighboring property values.
Use Variance - allowed to deviate from the lands designed use. This is granted only in very
exacting "special [Protect the Kids]
Zoning Categories: U-1=single family, U-6 sewage/jails/cem. (May include U1-5)
ZONING LIMITS: States may prohibit occupants. Village of Bell Terre v. Boraas: Zoning
regulations may be used to enhance and preserve public welfare.
circumstances." Moore v. City of Cleveland-- cannot narrowly define “family.” Protective
class-they defined who is “relationships.”
EMINENT DOMAIN:
Condemnation Proceedings for eminent domain;
Regulatory Taking – Statute passed makes land useless. (South London v. Killo).
A taking when title to land, permanent physically invasion (TV CABLE), or severely restricts
the use of land. Lucas v. SC Coastal Council: When a property owner is denied all
economically beneficial/productive use of land, there is a taking. ---(100% of economic or
productive use of the property is required for payment).
TEST: (1) Land must be taken for public purpose (2) Must be just compensation. Legitimate
state interest stated as the justification for the taking/restriction and any conditions imposed
on the property owner. Valid exercises of police power include regulations that have the
purpose of protecting the public from harm or ensuring a public benefit. A landowner can
recover damages equal to the reduction in value to his property resulting from a partial taking.
CATEGORICAL RULE: Any time there is a "permanent physical invasion, then it is a
taking. (1) Legitimate state interest? (1A) Statute rationally related to state interest? (1B)
Permanent physical invasion? (2) Just compensation? Permanent Easement --- easement of
their 'air-rights' qualifies as a "taking." (Cable TV)
Penn Central (Balancing) Test: (1) Economic impact of regulation; (2) Extent that regulation
interferes with owner’s investment-backed expectations; and (3) Character of the government’s
action involved in the regulation. Public Benefit versus Private owner’s losses tied to current
use or "investment-backed expectations." Examples: Plans; money spent --- before statutory
change. Stop the Beach re-nourishment:
Littoral Property Owner: Own property that touches the water. (1) Right to Access Water
(touch) (2) Rights to Accretions and Relictions (3) Right to a View of the Water
Avulsions: The Littoral owner does not have right to avulsions.
1. Pearson v. Post - fox case
2. Hickeringill--duck case (labor)
3. Whale Case--industry norms and catch/mortal wound.
4. Moore v. Regeants--body parts
5. AP News Case – labor and can’t take work of another in same industry.
6. Armory v. Delamarie--Jewel Case. (First finder)
7. Hannah v. Peel -- lost property goes to finder if owner never occupied real property
8. Bridges v. Hawkesworth -- Customer found a wallet on a table to Store owner.
9. South Staffordshire v. Sharman -- pool boy finds ring - to landowner.
10. Elwes v. Brigg Gas. Co. -- boat in ground to landowner.
11. MCAVOY V. MEDINA--lost pkg on floor to finder because lost.
12. Hawkins v. Mahooney - prisoner case-- abandonment is a rebuttable presumption
EASEMENT: (1) Was an easement created? (2) If so, what is the scope of the easement? (3) Was the
easement terminated? (Affirmative Easement Creation: Prescription, Implication, Necessity, or Grant)
(Negative easement is limited to: (1) Light; (2) Air; (3) Stream (artificial); (4) Support  (5) CA unique
one: Ocean view. Quasi-Easement is determined by the prior use that gave rise to the easement, but can
change over time if the changes are reasonably foreseeable at the time of conveyance. (Van Sandt v. Royster-was reasonably necessary for sewer line). Prescription: There must be continuous, actual, open, and hostile
use for the statutory period—exclusive not required. Necessity: common owner & necessary then & now.
(Othen v. Rosier– convivence of flooded road does not imply necessity. Appurtenant: Easement that
benefits one piece of land but burdens another piece of land. Bird v. Vermont – not required to access by
boat. In Gross: Benefits a land owner personally, but land is still burdened-not transferable unless
commercial purpose. Dominant: Property that is benefited by the easement. One-Stock Rule: Even if you
divide up an easement, you still have to make decision together as one company (party), you have to have
consent of other party. An easement in gross is assignable and divisible, but if divided, all those holding an
interest must act as a single entity. (Miller v. Lutheran—bathing rights). Servient: Property that has the
burden of the easement. Profits: enters another’s land and remove specific resources. Grant: CL can’t
create easement in 3rd person. Exception: reserve easement for another (Willard v. First Church—parking
lot case) Estoppel: Substantial Investment, reasonableness, License to use (Holdbook v. Taylor—building
house behind property put chain across road.) Cannot expand easement (Brown v. Voss—building new
house on lots B & C). Scope: Set to terms & conditions that created easement.
Termination of Easement: 1 Release (Agreement in writing); 2 Expiration (by the terms of the Easement);
3 End of Necessity; 4 Merger; 5 Estoppel; 6 Prescription/Adverse Possession, or Estoppel.
Foreclosure Lenders MUST Act: Good Faith: Follow the law. (Bad faith requires a purposeful disregard
duty or intentional harm.) Due Diligence: Actually, try and sell. (Due diligence requires the mortgagee to act
as a reasonable man would with respect to the sale.) (a)Advertise more than the minimum required by law. (b)
Know the price of the property; or (c) Set a minimum price. (Murphy v. Financial Dev. –$27K then $54k)
Real Covenant: Promise to do or not do something, can be RESTRICTIVE COVENANTS. (Tulk v.
Moxhay – garden case covenant carries to sub purchase—why HOA) (1) Vertical Privity of subsequent
owners (A) Strict = burden = transfer of the same estate; (B) Benefit allows transfer of lesser estate (2)
Horizontal Privity: did they have the right kind of relationship? (I) Landlord-tenant; (II) Easement; (III)
Mortgagee-Mortgagor..
Touch and Concern: (Morsedly – Tile drain case.)
Equitable Servitude: Same thing as real covenants, difference in way it is enforced. (injunction only) (1)
Intent of original parties to bind future owners; (a) Look at writings, or circumstantial evidence; (2) Touch &
Concern; (a) Does it concern the property? (3) Logical use and enjoyment of property. (4) Notice; (A)
Writing? (B) Actual or constructive notice? (Nahrsedt – restricted use on cats-equal application –ok)
(Sanborn v. Mclean–inquiry notice re gas station in residential lot). (Neopost—Affirmative covenant to pay
dues (HOA))
GENERAL SCHEME DOCTRINE [Implied Reciprocal Negative Servitude]
Common Owner
Intent to have general scheme
1. Prove through master plan or promotional materials.
Uniform Restriction on other properties
1. Are there enough homes with the same restriction (not perfect, but clear it was part of scheme?
Benefit to Retained lots
1. How would retained properties benefit? Sell for more because neighbors are restricted to residential only.
Inquiry Notice (look around and ask questions), actual, or constructive)
TERMINATION OF REAL COVENANT/SERVITUDE: Release: Requesting others to waive/release
covenant. 2. Abandonment: When no enforcement, and lots of violations. Similar to laches. 3. Changed
Conditions: Terminate covenant if original purpose cannot be accomplished and no substantial benefit to
property owners. 4. Merger – owner takes possession of whole.
Shelley v. Kraemer: You cannot have race-based restrictive covenants; and court's will not enforce a
discriminatory covenant.
Western Land Co. v. Truskolaski: A restrictive covenant…so long as the covenant’s original purpose can
still be accomplished, and the property owners substantially benefit.
EASEMENT
BURDEN
INTENT
NOTICE
BENEFIT
Appurtenant:
Intent
REAL COVENANT ($)
(Start Evaluation Here)
Intent
Touch or Concern
Notice
Horizontal Privity
1 - Landlord-Tenant
2 - Easement
3 - Sale to other
Strict Vertical Privity
In Gross:
Intent or
Commercial
Intent
Touch or Concern
Relaxed Vertical Privity
Writing
No Notice
No Horizontal privity
EQUITABLE
SERVITUDE
(INJUNCTION)
Intent; Touch and
Concern; notice
(writing)
Intent; Touch &
concern (writing)
1. Pocono Springs -- cannot abandon real property.
2. Davis v. Davis: widow was retrained from renting property.
3. O'Keefe - Due diligence - will not run until you discovery, or should have discovered if using reasonable
diligence. New York Rule: SOL does not begin to run until demand is made and they reject demand.
4. Riddle v. Harmon--unilateral severance of JT; Sprague case - in some jx a mortgage will severe the JT.
JT Ability to Lease: Boxing ring case. Spiller -- Warehouse case--split rent
5. Deflino: Part-in-kind or by sell.
6. Swando Ten. By entirety (Debts & no unilateral severance)
7. Hanna v. Dusch--no duty to deliver actual possession just right of possession.
8. Berg v. Willey NO SELF HELP; Somner v. Kridel - Mitigation of damages,
9. PETERS v. HILDER Warranty of Habitability.
10. Hickey v. Green - wrote check evidenced by estoppel (Partial Performance)
11. Latent Material Defects -- Johnson v. Davis roof case; Stambvosky--Ghost Case. Caveat Emptor
12. Bulk head case (OR LEVY CASE) Not encumbrance - Frimberger
13. Present intent - Rosengrant v. Rosengrant Deed delivery defective case.
14. Murphy case --> foreclosure must use due diligence; Com. Wealth Mass. Unfair trade practices.
15. Mortgage Alternatives: Sabastion v. Floyd - installment contract was invalid
16. Van Sandt -- sewer case
17. Johnson v. McIntosh—Discovery of land case.