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Property Outline

Property Outline
Property: “bundle of rights” = right to possess, use (within reason),
exclude, and dispose
By Adverse Possession
- Elements of AP (subject to change per state statute):
- 1. It is actual - there is some physical occupation of the land.
- 2. It is open and notorious - there is some visible evidence of
possession that would be noticeable to the “reasonably attentive”
property owner.
- 3. It is hostile - without the permission of the owner.
- 4. It is exclusive - it is not shared with the owner or the general
public and it is not claimed by multiple parties unless they are
working together.
- 5. It is continuous - the possession exists during the entirety of the
statutory period; it is constant.
- 6. There is a claim of right/title by the possessor
- 7. It is a good faith mistake - the possessor genuinely believes that
they had a right to the property.
- Van Valkenburgh v. Lutz
- Three Categories of Adverse Possession Cases:
- 1. Color of Title: the adverse possessor has a legal claim to the
property, but there is some problem with the deed; they have good
faith that their title is correct and the problem with the deed does not
arise from negligence.
- 2. Mistaken Boundary: the adverse possessor is on land that they
believe is theirs; state of mind of the possessor is looked at.
- 3. Outright Aggressive Possession: A squatter; good faith of the
possessor is looked to.
- Maine Doctrine: a mistake prevents the existence of a required claim of
right for the adverse possessor; an intentional tortious taking is needed.
- Connecticut Doctrine: mistake does not matter in adverse possession;
instead look to the objective acts of the adverse possessor and not their
state of mind.
- Where the encroachment of another’s land is small, not clear, and not
apparent to the naked eye, only the true owner’s actual knowledge of
Property Outline
the encroachment can satisfy the open and notorious requirement of
adverse possession. Mannillo v. Gorski
Tacking: where an adverse possessor of real property adds their period of
possession to that of a previous adverse possessor.
- Allowed if the successive occupants are in privity: the relationship
between parties in successive possession of real property.
- Show some reasonable connection between successive occupants,
as to distinguish a wrongdoer/trespasser from an occupant.
An adverse possession claim is not defeated if the physical use of a
real property is seasonally restricted. Howard v. Kunto
Public Domain
- Public Trust Doctrine: “nature, the air, running water, the sea, and the
seashores are common to everyone to everyone and cannot be private
- The seashore, from the ocean to the mean high-water mark,
cannot be private property.
- The Public Trust Doctrine is molded to fit changing conditions and
current needs of the public.
- The public’s right to tidal lands includes the right over
privately-owned lands when reasonably necessary to gain
access to the seashore.
- Matthews v. Bay Head Improvement Association
Property Outline
Possessory Estates
Fee Simple (Absolute)
- Absolute title to land, free of any other claims against the title, which one
can sell or pass to another by will or inheritance; may endure forever.
- Inheritance:
- Heirs: the people who survive the decedent and are designated as
intestate (without a will) successors under the particular state’s
- Living people are not heirs, they become heirs once the
decedent dies.
- Spouses are now considered intestate successors in all
states, acquiring a portion depending on who else is an heir.
- Order of inheritance: issue/spouse > ancestor > collateral
- Issue: the decedent’s descendants; not necessarily children, but all
future descendants.
- Ancestors: the decedent’s parents; chosen if there are no heirs
- Collaterals: any family that are not issues or ancestors (brothers,
sisters, nephews, nieces, uncles, aunts, and cousins).
- Escheat: If there are no kin to inherit a decedent’s property, it goes
to the state.
Fee Tail -Abolished in most states.
Life Estate
- An interest in land that only lasts for the life of the grantee; it cannot be left
to anyone by the grantee after they die, but may be transferred while they
- Reverts back to the grantor once the grantee dies.
- There is a presumption of a fee simple absolute being passed, unless
it is clearly indicated that there is an intention of a life estate.
- This intention is ascertained from the language of the entire
instrument in light of the surrounding the circumstances, partial
intestacy will not be adopted unless intent clearly appears.
- White v. Brown
- Deterioration and waste of the property is a proper, but the exclusive
and ultimate test to be used in determining whether a sale of land
affected by a future interest is proper, the best interests of all parties
should be included.
Property Outline
Baker v. Weedon
Leasehold Estate
- A lease in which the renter has the right to possess the leased property for
a specific period of time (see: LANDLORD-TENANT LAW)
Defeasible Estate
- Any estate may be made defeasible: it will terminate, prior to its natural
end point, upon the occurrence of some specified future event.
- Three Types of Defeasible Fees Simple:
- 1. Fee Simple Determinable: a fee simple that ends automatically
when a state event happens.
- Associated future interest: possibility of reverter
- 2. Fee Simple Subject to Condition Subsequent: a fee simple that
doesn’t automatically terminate, but may be cut short/divested at the
transferor’s election when a stated condition happens.
- Until grantor acts, the fee simple continues.
- Associated future interest: right of entry
- 3. Fee Simple Subject to Executory Limitation: when a grantor
transfers a defeasible fee simple, either a determinable or subject to
condition subsequent fee, and also creates a future interest in a third
party rather than themselves.
- Associated future interest: executory interest (to a third party)
- A grant for exclusive use followed by an express provision for
reverter is a simple determinable and not a fee simple subject to
condition subsequent.
- Mahrenholz v. County Board of School Trustees
- A limitation that restricts the sale of land and property use is not void
as a restraint against alienation.
- Mountain Brow Lodge No. 82, Independent Order of Odd
Fellows v. Toscano
- A grantor’s future interest in a determinable fee is not extinguished
when the property is taken by eminent domain.
- Ink v. City of Canton
Future Interests
Transferor’s [O] - - PRR!
Property Outline
1. Reversion: a future interest remaining in the grantor, or the successor
in interest of a testator, who transfers a lessor estate and does not specify
who takes the property when the lesser estate expires.
- Attached to life estates, “to X for life”, and reverts back to grantor
when X dies.
- 2. Possibility of Reverter: a future interest remaining in the transferor or
his heirs when a fee simple determinable is created.
- Attached to fees simple determinable, “to X as long as it is used for
these purposes.”
- 3. Right of Entry: the grantor’s power to cut short or terminate the estate
upon a condition happening.
- Attached to fees simple subject to condition subsequent, “to X, but if
it ceases to be used for these purposes, I have the right to re-enter
and retake.”
Transferee’s [you] VR – CR - EI
- 1. Remainders: a future interest that is capable of becoming possessory
at the termination of the prior estate.
- Vested Remainders:
- Given to an ascertained/specific person and not subject to a
condition precedent.
- May be indefeasibly vested - the remainder is certain of
becoming in the future and cannot be divested (“to X for life,
then to Y and Y’s heirs”).
- May be vested but not certain to be possessory.
- May be subject to divestment if an event happens.
- Contingent Remainders:
- Given to an unascertained person; or
- Is made contingent upon some event concurring other than
the natural termination of the preceding estate (subject to
condition precedent).
- 2. Executory Interests: a future interest that, in order to become
possessory, divest/cut short some interest in another transferee (shifting
executory interest), or divest the transferor in the future (springing
executory interest).
Property Outline
- A trustee holds legal title to the trust property and manages it for the
benefit of the beneficiaries.
- The beneficiaries have the right to enjoyment of the property, they hold
equitable title - based on the above estates and future interests.
- The trustee has the power to sell trust assets and reinvest the proceeds in
other assets.
- The trust’s net income is paid to the beneficiaries and when the trust is
terminated, the trust assets are handed to them, free of the trust.
- The trustee must act for the sole benefit of the beneficiary and cannot
benefit personally.
- A trust’s founder can secure the income of a trust property by
providing that it shall not be alienable or subject to be taken by the
beneficiary’s creditors.
- The trustor’s intentions must be carried out unless it would be
against public policy.
- Broadway National Bank v. Adams
Property Outline
Common Law Concurrent Interests
- 1. Tenancy in Common: [default] tenants have separate, but undivided
interests in the property.
- “To X and Y” - both X and Y can pass on their interest to their heirs
or convey it to someone else.
- 2. Joint Tenancy: tenants are regarded as a single owner, with each
owning the undivided whole of the property.
- When one joint tenant dies, the surviving tenant simply continues to
have an undivided share of the property (nothing new passes to
- [4] Unities Needed for Joint Tenancy: TTIP
- 1. Time: the interest of each tenant must be acquired or
vested at the same time.
- 2. Title: all tenants must acquire title by the same instrument
or by the same adverse possession.
- 3. Interest: all tenants must have equal undivided shares and
identical interests measured by duration.
- 4. Possession: each tenant must have a right to possession
of the whole (though one JT may voluntarily give possession
to the other; this is also required in tenancies in common).
- If any 4 unities is missing  NO JT - but a tenancy in common!
- If one of the tenants severs the JT  TIC!
- 3. Tenancy by the Entirety: like a JT, but has the added unity that the
joint tenants are married.
- Neither tenant can act alone; in order to convey both the married
tenants must do so together.
- Divorce terminates the tenancy by the entirety, then it becomes a
tenancy in common.
- It is possible to sever a JT by conveying property to oneself without
an intermediary. -Riddle v. Harmon
- A mortgage on a joint tenant’s interest does not survive the
mortgagor; a joint tenancy is NOT severed when one joint tenant
mortgages the property. -Harms v. Sprague
Property Outline
Multi-Party Bank Accounts
- 1. Joint Accounts: “X and Y; X or Y”
- Most common; used by depositors with different intentions and for
different purposes.
- 2. Savings Account Trusts (Totten Trusts): “X, in trust for Y”
- 3. Payable-on-Death Accounts: “X, payable on death to Y”
Concurrent Owners
- A court must consider the interests of all the tenants in common
before it can order the partition the sale of tenant in common
- Two conditions to be satisfied in order to a partition sale of tenancy
in common property:
- 1. The physical attributes of the land is such that partition in kind
would be impractical or inequitable.
- 2. The interests of all the owners would be promoted by a partition
- Delfino v. Vealencis
Sharing the Benefits and Burdens of Co-ownership
- An occupying co-tenant cannot be liable for rent to the other cotenant, unless the occupying co-tenant is physically barring the other
from entering the land.
- Spiller v. Mackereth
- When one joint tenant leases possession of their property to a third
party, the other joint tenant who did not join the lease cannot cancel
the lease, even when the third party is in exclusive possession of the
property to the exclusion of that joint tenant.
- A joint tenant can compel the other to account for the rent
collected from the third party.
- When one joint tenant leases the property to a third party, that
person may enjoy the full rights of possession that the joint
tenant enjoys.
- Swartzbaugh v. Sampson
Property Outline
Martial Interests
Common Law Marital Property System
During Marriage
- The interest of one spouse in real property held in tenancy in the
entirety is not subject to levy or execution by individual creditors.
- Sawada v. Endo
Property Outline
Leasehold Estates
- 1. Term of Years: an estate that lasts for some fixed period of time or for a
period computable by a formula that results in fixing calendar dates for
beginning and ending
- Can range from days to years.
- Must be for a fixed period, but can be terminable upon the
happening of an event/condition.
- No notice of termination is necessary.
- 2. Periodic Tenancy: a lease for a period of some fixed time that
continues in succeeding periods until either the landlord or tenant gives
notice of termination.
- Can be year to year or month to month.
- Common law rule: a half-year’s notice is needed for a year to year
- Cannot end with the death of a party.
- 3. Tenancy at Will: a lease with no fixed period, but endures as long as
both landlord and tenant desire.
- Can be indicated by allowance of one party being able to terminate
at will.
- Can end with the death of one party.
- A lease which grants the tenant the right to terminate at the
date of their choice, but not to the landlord’s choosing, creates
a determinable life on behalf of the tenant; a tenant cannot be
evicted under such a lease.
- Garner v. Gerrish
- 4. Tenancy at Sufferance: Holdovers: happens when a tenant remains in
possession (holds over) after termination of the tenancy
- 2 CL options for the landlord:
- 1. Eviction (plus damages)
- 2. Consent (express/implied) of a new tenancy (the new
tenancy is usually subject to the same terms and conditions of
the original lease)  Periodic Tenancy?
Property Outline
- A lease is both a conveyance and a contract.
- It is a transfer of a possessory interest in land = conveyance.
- It contains a number of promises/covenants = contract.
- Statute of Frauds: leases for more than one year must be in writing.
- Most states permit oral leases for less than a year.
- Others usually state that such leases are periodic tenancies not
subject to the Statute.
Tenant Selection
- The Fair Housing Act:
- § 3604:
- It is unlawful, because of race, color, religion, sex, familial
status, or national origin, to:
- Refuse to sell/rent after the making a bona fide offer, or
to refuse to negotiate for the sale/rental of, or otherwise
make unavailable or deny, a dwelling;
- Discriminate against any person in the terms,
conditions, or privileges of sale/rental of a dwelling, or in
the provision of services/facilities in connection
- To make, print, or publish, or cause to be made, printed,
or published any notice, statement, or advertisement,
with respect to the sale/rental of a dwelling that
indicates any preference, limitation, or discrimination
based on the above, and an intention to.
- It is unlawful, because of a buyer’s/renter’s handicap, to:
- Discriminate in the sale/rental, or make
unavailable/deny a dwelling;
- Discriminate in the terms, conditions, or privileges of
sale/rental of a dwelling, or in the provision of
services/facilities in connection with it;
- Discrimination includes:
- A refusal to permit
- A refusal to make reasonable accommodations
Property Outline
A failure to design and construct those dwellings
in a manner accessible to such handicapped
§ 3603 (exceptions):
- Any single-family house sold/rented by the owner provided
that such owner does not own more than three such houses at
a time.
- Rooms/units in dwellings containing living quarters occupied
or intended to be occupied by no more than four families living
independently of each other.
Delivery of Possession
- When a landlord rents real property, they are not required under law
to oust a holdover tenant so as to have it open for entry by the new
tenant at the beginning of the term when there is no express
covenant to do so. - Hannan v. Dusch
Tenant Who Defaults
In Possession
- A landlord may not use self-help to retake leased premises from a
tenant who has not abandoned the premises nor voluntarily
surrendered them and who has objected to the retaking on a prior
- When the landlord has the right to take possession, it is not just
actual/threatened violence to the tenant that can give rise to
damages against the landlord, but also damages on any entry
that is not peaceable. -Berg v. Wiley
- A landlord in a residential lease is under duty to mitigate damages
caused by a defaulting tenant.
- There is a liability on the landlord for a failure to do so.
- There is an implied covenant to repair and warranty of fitness.
- Sommer v. Kridel
Property Outline
Duties, Rights, and Remedies
Landlord Duties / Tenant’s Rights and Remedies
- Landlord-tenant disputes over premises conditions arise in two main ways:
- 1. The tenant might wish to vacate, or to pay less/no rent.
- 2. The tenant/invitee might be injured by allegedly defective
premises and claim damages against the landlord in tort.
- Constructive/actual eviction trumps a contractual lease provision that
requires payment of rent and suit to remedy the wrong by the
- Eviction is actual when the tenant is deprived of the occupancy of
some part of the demised premises (a material part).
- Eviction is constructive when the lessor, without intending to oust the
lessee, does an act by which the latter is deprived of the beneficial
enjoyment of some part of the premises (an interference with
possession that deprives the lessee of the beneficial enjoyment of
the premises).
- In this case, tenant has the right of election, to quit, and
avoid the lease and rent, or abide the wrong and seek
- A lessor’s transitory and fleeting interference with the lessee’s
possession is not an eviction, but a trespass.
- Village Commons, LLC v. Marion County Prosecutor’s Office
Implied Warranty of Habitability
- Abandonment is not necessary in order to claim damages under an
implied warranty of habitability in residential leases.
- It cannot be said that a tenant that has knowledge of any defects
assumed the risk.
- In looking for a breach of implied warranty, courts look at:
- Any relevant local/municipal housing code and if there has been a
substantial violation of such code.
- Whether the claimed defect impacts the safety/health of the tenant.
- T must have showed they notified the landlord and gave a
reasonable time to fix the problem.
- Standard contract damages of rescission, reformation, and damages
are available.
Property Outline
Damages  the difference in the value of the premises as warranted and
the value of the dwelling as it is.
- Discomfort/annoyance damages should be allowed.
- Punitive damages apply if the breach is willful, wanton, and/or
The tenant may also withhold future payments of rent if the landlord was
noticed and did not repair and the defect existed during the time for which
the rent was withheld.
Tenant’s Duties / Landlord’s Rights and Remedies
- The duty not to commit waste is breached if a tenant makes “such a
change as to affect a vital and substantial portion of the premises;
- as would change its characteristic appearance;
- the fundamental purpose of the erection; or
- the uses contemplated, or a change of such a nature, as would
affect the very realty itself, extraordinary in scope and effect, or
unusual in expenditure.”
- Tenant Duties:
- 1. Pay rent
- 2. Refrain from committing waste
- 3. Not use premises for illegal purposes
Subleases and Assignments
- An assignment  arises when a lessee transfers his entire interest
under a lease.
- An assignment conveys the whole term, while a sublet the tenant
grants an interest in the leased premises less than their own or
reserves reversionary interest in the term. - Ernst v. Conditt
- If no express provision in a lease K to assign or sublet  consent to
do so must not be unreasonably withheld.
- Second Restatement: the lessor’s interest in the character of his tenant is
protected by the lessor’s right to object to a proposed assignee on
reasonable commercial grounds.
- The lessor’s interests are also protected by the fact that the
original lessee remains liable to the lessor as a surety even if
Property Outline
the lessor consents to the assignment and the assignee
expressly assumes the obligations of the lease.
A lease is a K and in every contract, there is an implied covenant of
good faith and fair dealing;
- The lessor retains the discretionary power to approve or
disapprove an assignee and therefore this power should be
exercised with commercially reasonable standards.
whether a lessor’s refusal to consent was reasonable is a question
of fact; some of the factors - The financial responsibility of the assignee
- The suitability of the property for the particular use,
- Legality of the proposed use,
- The need for the alteration of the premises
- The nature of the occupancy
Denying consent based on personal taste, convenience, or
sensibility is not commercially reasonable;
- nor is it reasonable for the landlord to deny consent
holding out for a higher rent with no commercially
reasonable facts to support such a higher rent. Kendall v.
Ernest Pestana, Inc.
Property Outline
Contract of Sale
a. Marketable Title  title not subject to reasonable doubt that would create a just
apprehension of its validity in the mind of a reasonable, prudent, and intelligent person,
one which such persons, guided by competent legal advice, would be willing to take and
for which they would be willing to pay fair value.
A seller must convey marketable title as an implied condition; if
they cannot, the buyer is entitled to rescind the contract.
- Marketable title cannot be conveyed when there are violations
of restrictive covenants and city zoning ordinances.
- Lohmeyer v. Bower
b. Duty to Disclose Defects
- If a condition is created by the seller and
- they know it is unlikely to discovered by a careful prudent buyer and
- it impairs the value of the K  a nondisclosure of the condition is a basis
for rescission under equity.
- Doctrine of caveat emptor will yield to equity when there is no
practical manner in which the buyer could discover material special
information known only by the seller.
- Caveat emptor requires that the buyer act prudently to assess
the fitness and value of their purchase and bars the buyer who
fails to exercise due care from seeking equitable remedy of
- Caveat emptor is not all-encompassing as to render every act
of nondisclosure immune from redress. Stambovsky v. Ackley
- If SELLER of a house knows of facts materially affecting the value of
the property which are not readily observable and are not known by
the buyer  the seller has a duty to disclose them to the buyer.
- Caveat emptor does not exempt the seller from responsibility for the
statements/representations that induced the purchase, when they
are legally fraud. -Johnson v. Davis
Property Outline
1. Warranties
- Three main kinds:
- 1. General Warranty Deed: warrants title against all defects in title,
whether they arose before or after the grantor took title. [FOREVER]
- 2. Special Warranty Deed: contains warranties only against the
grantor’s own acts, but not the acts of others. [for time O was there]
- 3. Quitclaim Deed: contains no warranties of any kind; it merely
conveys whatever title the grantor has, and if the grantee takes
nothing, they cannot sue the grantor.
- Latent violations of land use regulations that: do not appear on the
land records; are unknown to the seller of property; have not been acted
upon by government officials at the time of execution; and have not
ripened into an interest that can be recorded on land records - does NOT
constitute an encumbrance for deed warranty purposes.
- Frimberger v. Anzellotti
- The covenant of seizen runs with the land and is broken the instant the
conveyance is delivered and then becomes a chose in action held by the
covenantee in the deed; a deed by said first conveyance operates as an
assignment of such chose in action to a remote grantee. -Rockafellor v.
- For a deed to be effective it must be delivered with the intent that it be
presently operative.
- Either the grantor hands the deed to the grantee upon receipt of the
purchase price (immediate), or the grantor puts the deed in the
hands of a third person who hands over the deed upon closing the
transaction (once certain conditions are met).
- Delivery may not be accomplished by simply handing the deed
to the grantee and then taking it back with a right to retrieval
with delivery being affected upon death; there must be an intent
to transfer immediately upon handing the document over; legal
delivery is not symbolic. Rosengrant v. Rosengrant
Property Outline
Recording System
- Recording Act: a law regulating the recording of deeds and other
interests in property; also determines priority between parties claiming
interests in the same property.
- Types of Recording Acts:
- 1. Race Statute: gives priority of title to the party that records a
claim first, even if the party had notice of an earlier unrecorded claim
on the same property.
- 2. Notice Statute: gives priority of title to the party with the most
recently obtained claim, but only if the party also lacked notice of an
earlier claim; an earlier recorded claim gives the whole world
constructive notice.
- 3. Race-Notice Statute: gives priority of title to the party that
records first, but only if the party also lacked notice of prior
unrecorded claims on the same property.
Property Outline
Substantive Law
- Types of Nuisances:
- Private Nuisance: affects the private rights of enjoyment by a single
person or a definite small number of people, not common to the
- Public Nuisance: affects the public rights of enjoyment by a
considerable number of people or an entire community or
- Even if someone is acting within the scope of the law, a private nuisance
may be created/maintained without negligence.
- A private nuisance per accidens or in fact may be created/maintained
without negligence.
- private nuisance  Any substantial, non-trespassory invasion of
another’s interest in the private use and enjoyment of land by any
type of liability forming conduct
- Such invasion may be intentional or unintentional.
- A person is liable for intentional intervention when their conduct is
unreasonable under the particular circumstances.
- A person is liable for unintentional intervention when their conduct
is negligent, reckless, or ultrahazardous.
- Categories of Remedies:
- Property protection for P = grant injunction (Morgan, Estancias)
- Property protection for D = deny injunction
- Liability protection for P = deny injunction, but force D to pay
damages (Boomer)
- Liability protection for D = grant injunction, but force P to pay
damages (no property protection for P) (Spur)
- If the fact finder establishes a nuisance claim, the court must still
balance the relative equities of the parties in order to issue an
- Such a balancing of equities will consider the injury to be
sustained by the defendant and the public by granting the
injunction versus the injury to the complainant if it is denied.
- The necessity of others may compel the injured to seek damages
over an injunction.
Property Outline
- Estancias Dallas Corp. v. Schultz
- Morgan v. High Penn Oil Co.
Where a nuisance is shown to have caused substantial damages to
the complainant, but an injunction would also cause economic harm,
that injunction does not have to be issued if permanent damages are
- Permanent nuisances may be addressed by permanent damage
awards depending on public policy.
- Boomer v. Atlantic Cement Co.
For slight injuries  remedy is for damages rather than an injunction.
A lawful business may be enjoined for a nuisance, but if a injunction
is granted, the prevailing party must indemnify (compensate) the
losing party for abating the nuisance, especially if that party came to
the nuisance.
- In “coming to the nuisance cases”, a residential landowner may
not be granted relief if they knowingly came into an area that is
reserved for industrial or agricultural use that causes the
- Spur Industries, Inc. v. Del E. Webb Development Co.
Property Outline
- Servitudes: interests in land binding and benefiting not only the parties to
the question, but their successors
Types of Traditional Servitudes:
- 1. Easements
- 2. Covenants (two types):
- 1. Real Covenants
- 2. Equitable Servitudes
Types of Functional Servitudes:
- 1. X is given the right to enter upon Y’s land
- 2. X is given the right to enter upon Y’s land and remove something
attached to the land
- 3. X is given the right to enforce a restriction on the use of Y’s land
- 4. X is given the right to require Y to perform some act on Y’s land
- 5. X is given the right to require Y to pay money for the upkeep of
specified facilities
- Easement: a grant of an interest in land that entitles a person to use land
that is possessed by another
- Not a profit (a right to come and remove something from someone’s
land (treated the same though)) nor a license.
- written instrument
- signed by a party to be bound thereby;
- OR created by
- implication or
- prescription.
Dominant and Servient Estate:
- The land whose owner is benefited, the land whose burdened.
Maybe be affirmative or negative.
- Affirmative: gives someone the right to enter or perform on the
servient land (most )
- Appurtenant or in gross: gives the right to whoever a parcel of that
the thae easement benefits.
- Estoppel can establish the right to use a roadway or easement over
the land.
Property Outline
If a landowner approves the use, improvements, and
maintenance of their roadway, they may be estopped from
barring access to that roadway. Holbrook v. Taylor
An easement created by implication  arises from the intentions of the
parties to a conveyance, even if it was not readily visible at the time.
An owner cannot have an easement in their own land.
- BUT Quasi-easements  owner makes uses of one part of their
land for use of another. - Van Sandt v. Royster
Easement by Implication:
- 1. Necessity
- 1. Unity of ownership of alleged
- 2. Roadway is a necessity, not a mere convenience
- 3. Necessity existed at the time of the severance of the two
- necessity MUST exist at the time the estate was
created. - Othen v. Rosier
- 2. Prior Use
- 1. Severance of title of land initially undivided.
- 2. Apparent existing continuing use of one parcel of at time of
- 3. Reasonable necessity for use at time of severance.
- 3. Prescription
- 4. Estoppel
Negative Easements
- Forbids one landowner from doing something that would harm another
land owner
- Four recognized at common law:
- 1. Light
- 2. Air
- 3. Support
- 4. Water stream interference in artificial system
- *5. Scenic View (limited)
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Real Covenants
- Promissory agreements that bind successors to the promisor’s land
- Traditional (American) Approach:
- Not only satisfied in landlord-tenant relationships.
- Real Covenant: Written promises to do or refrain from doing something on land,
with a usual remedy of money damages
Horizontal Privity: privity of estate between the original parties.
Vertical Privity: privity of estate between one of the covenanting
parties and a successor in interest.
- A
- |
- B
A real covenant can be a negative promise (to not act) or an
affirmative promise (to do an act).
A covenant is not enforceable against an assignee who has no
notice of it.
Equitable Servitudes
- A non-possessory interest in land, allowing the holder to make use of a
property or refrain from doing something on a property; it is a promise
concerning the use of land that:
- 1. Benefits and burdens the original parties to the promise and
their successors; and
- 2. Is enforceable by injunction.
- Although an equitable servitude does not meet the formal requirements of
a covenant, it will be enforced against successive owners who have
knowledge of the original agreement.
- It is also referred to as an easement.
- A covenant in an original deed subjecting the land to an annual
charge can touch and concern the land.
- An association formed as a convenient instrument by which the
property owners might advance their common interests as a medium
for the enjoyment of common rights of property owners, but which
owns no property which would benefit by enforcement of common
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rights and has no cause of action in equity to enforce the covenant
upon which such common rights depend has a right to enforce a
covenant that affects all the property common to each owner.
- Neponsit Property Owners’ Association, Inc. v. Emigrant
Industrial Savings Bank
Discriminatory Covenants
- A state cannot enforce private racially restrictive covenants on the sale of
land because they violate the 14th Amendment and Equal Protection
- Judicial enforcement of discriminatory private action is enough state
action to violate the Fourteenth Amendment. - Shelley v. Kraemer
Termination of Covenants
- Ways Covenants May Be Terminated:
- 1. Merger: unity of ownership of the benefits and burden by the
same person.
- 2. Formal Release: normally written and recorded.
- 3. Acquiescence: when the plaintiff has failed to enforce the
servitude against other breaches and then seeks to enforce the
servitude against the defendant.
- 4. Abandonment: makes the servitude unenforceable as to the
entire parcel rather than only as to the plaintiff immediately involved.
- 5. Unclean Hands: the will court will refuse to enjoin a violation of a
servitude that the plaintiff previously violated.
- 6. Laches: an unreasonable delay by the plaintiff to enforce a
servitude against the defendant causing prejudice to the defendant
(does not extinguish servitude, but bars enforcement).
- 7. Estoppel: the defendant has relied upon the plaintiffś conduct
makin it inequitable to allow the plaintiff to enforce the servitude.
- A restrictive covenant is enforceable as long as the provisions can still
be accomplished and substantial benefit will inure to the restricted area by
their enforcement. - Western Land Co. v. Truskolaski
- Restatement (Third) of Property, Servitudes
- § 7.10: Modification and Termination of Servitudes Because of
Changed Conditions
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1. When a change has occurred since the creation of a
servitude that makes it impossible, practically, to accomplish
its purpose, a court may modify the servitude as to make its
purpose possible.
- If modification is not practicable or not effective, the
court may terminate the servitude.
- Compensation for the harm from modification or
termination of a servitude may be awarded.
- 2. If the servitude’s purpose can be accomplished, but
because of changed conditions the servient estate is no longer
suitable for the servitude’s purpose, a court may modify the
servitude to permit other uses under conditions designed to
preserve the benefits of the original servitude.
- 3. Servitudes held by public bodies and conservation
organizations are not included in this.
§ 7.12: Modification and Termination of Certain Affirmative
- 1. A covenant to pay money or provide service terminates
after a reasonable time if the instrument that created the
covenant does not specify the total sum due or a definite
termination point.
- This does not apply to an obligation to pay for services
or facilities concurrently provided to the burdened
- 2. A covenant to pay money or provide service in exchange for
services or facilities provided to the burdened estate may be
modified or terminated if the obligation become excessive in
relation to the cost of providing the services or facilities or to
the the value received by the burdened estates; provided,
however, that modification based on a decrease in value to
the budend estate should take account of any investment
made by the covenantee in reasonable reliance on continued
validity of the covenant obligation.
- This does not apply if the servient owner is obliged to
pay only for services or facilities actually used and the
servient owner amy practicably obtain the services or
facilities from other sources.
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3. Rules 1 and 2 do not apply to obligations to a commoninterest community or to obligations imposed pursuant to a
conservation servitude.
Common Interest Communities
- AKA common-interest developments or CIDs, include condominiums,
coops, retirement communities, vacation timeshares, and other housing
developments comprised of individually owned units, in addition to shared
facilities and common areas.
- CIDs usually are created through a set of legal documents drafted by the
developer, which may change according to the community's needs.
- Typically, these types of communities are governed by an association
made up of the individual unit owners, most often through an elected
- Business Judgment Rule: invoked in lawsuits when a director of a
corporation takes an action that affects the corporation, and a plaintiff
sues, alleging that the director violated the duty of care to the corporation.
- In suits alleging a corporation's director violated his duty of care to
the company, courts will evaluate the case based on the business
judgment rule. Under this standard, a court will uphold the decisions
of a director as long as they are made:
- 1. In good faith;
- 2. With the care that a reasonably prudent person would use;
- 3. With the reasonable belief that the director is acting in the
best interests of the corporation.
- Practically, the business judgment rule is a presumption in favor of
the board; it is sometimes referred to as the "business judgment
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Zoning ordinances that are not arbitrary or unreasonable and serve the
purposes of public health, safety, morals, and welfare are considered
constitutionally valid exercises of government authority.
- Deference will be given to local government authorities as to
proper land use allocations. -Village of Euclid v. Ambler Realty Co.
Enabling Legislation and the Comprehensive Plan
- Zoning is an exercise of police power of the state to protect the health,
safety, welfare, and morals of the public.
- The Standard State Zoning Enabling Act is the model that all states have
adopted at one time or another.
- Usually, a city must create a zoning/planning commission that
recommends a comprehensive plan and zoning ordinance to be enacted
by the city council.
- Comprehensive plans: statements of the local government objectives,
standards, maps, charts, descriptive texts, etc.
Nonconforming Use
- If a government desires to interfere with an owner’s lawful use and it
is not a nuisance nor abandoned, it must compensate the owner for
the resulting loss.
- PA Northwestern Distributors, Inc. v. Zoning Hearing Board
- The Standard State Zoning Enabling Act allows two different ways for
zoning boards to have flexibility with the terms of an ordinance:
- Variances: two conditions must be met:
- 1. The variance must be necessary to avoid imposing undue
hardship on the owner of the land in question.
- Undue hardship: no effective use can be made of the
property in the event the variance is denied.
- 2. The grant of the variance must not substantially impinge
upon the public good and the intent and purpose of the zoning
plan and ordinance.
- Special Exceptions: will be granted if:
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1. The other requirements of the ordinance were met;
2. The use will not adversely affect the health, safety, or
general welfare of the public;
3. The use will not tend to defeat the purpose of this ordinance
or of the comprehensive plan for the development of the
4. The use will not tend to de-valuate or alter the essential
characteristic of the surrounding property.
Expanding Aims
- A zoning ordinance may regulate architectural standards of
appearance and conformity with surrounding structures.
- State ex rel. Stoyanoff v. Berkeley
- A building design provision in a local ordinance must be sufficiently
detailed enough so that men of common intelligence must not have
to guess its meaning and would differ in opinion.
- For land use, a court looks to not only the face of the
ordinance, but also its application to the person who sought to
comply with the ordinance and/or who is alleged to have failed
to comply.
- Anderson v. City of Issaquah
- Religious Establishments: the Religious Land Use and Institutionalized
Persons Act of 2000 prohibits land use regulations that impose substantial
burdens on religious exercise unless the government demonstrates that
the regulation furthers a compelling government interest and is the least
restrictive means of furthering that interest.
- Also prohibits regulations that treat religious institutions unequally
relative to non-religious ones, otherwise discriminate against them,
or totally exclude them from a jurisdiction.
Household Composition
- An ordinance prohibiting more than two unrelated/unmarried parties
from living together in one location is allowed.
- If there is no protected class discrimination, and no
fundamental right infringed by the ordinance, the standard of
review of such an ordinance is rational basis.
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- Village of Belle Terre v. Boraas
Exclusionary Zoning
- All zoning is exclusionary, but the term usually refers to a type whose
measures basically in purpose/effect close an entire community to
unwanted groups - such as low income individuals.
- Municipal land use regulations may not make it
physically/economically impossible to provide low and moderate
income housing.
- When a zoning regulation has a substantial external impact on the
welfare of the state’s citizens beyond the municipality’s borders, it
cannot be disregarded and must be recognized and served.
- General welfare extends beyond the borders of any particular
- Southern Burlington County NAACP v. Township of Mount