Property Case Notes
Terms
Adverse Possession
- Title by adverse possession – someone with no right to the land may obtain right by use
of the land. Goal: it eses the burden on the title searcher so they don’t have to retrace full history.
Possessory Estates
o Rule of Prior Possessors: True Owners have right to things over current owners
o Divisible: Owner may transfer land by Will
o Descendible/Inheritable: If the estate can pass by a states intestacy statute to heirs.
o Alienable, assignable, transferable: Owner can sell or give away during his lifetime (inter
vivos transfer).
Present Interests
o Fee Simple Absolute (FSA)
 Duration: Will last until the end of time (infinity).
 Owner may enjoy the property, transfer it away by sale or gift during his life, or
devise it (by will) upon his death.
 Intestate will pass to heirs.
o The Defeasible Fee Simples
o Fee Simple Determinable (FSD)
o “To A and his heirs so long as the property is used for X purpose”
o The estate automatically ends, and interest reverts back upon the happening of
an event or nonevent.
o Words of Limitation (WOL): “So long as” “during” “while” unless” “until”
o Duration: Infinitely, unless condition subsequent automatically ends the
estate.
o Fee Simple Subject to Condition Subsequent (FSSCS)
o Condition Subsequent: An event that if it happens or if it doesn’t happen will
trigger the estate to terminate. The interest will revert back or transfer to a
third-party.
o “To A; provided, however, if Britany does X, then Grantor may reenter and
retake the land”
o The difference in FSD and FSSCS is that a right of reentry or reverter must be
utilized by the grantor in a FSSCS, whereas in a FSD the reversion occurs
automatically upon the happening of the event or nonevent.
o A holder of a possibility of reverter or reentry may opt to waive their right in a
FSSCS. A holder of a possibility of reverter may not waive their right in a
FSD, in that case the land automatically reverts upon the event or nonevent.
o Fee Simple Subject to Executory Limitation (FSSEL)
o Fee Tail (FT)
o Otherwise called “fee simple conditional”
o
o
o
o
o Duration: Until original grantee’s lineage dies out
o Fee tail usually passes to A for life, then A’s eldest heir for life, then that heir’s
eldest, and so on.
o When a bloodline ends, and fee tail cannot continue, it is called failure to issue.
 The estate then goes back to grantor and likely grantor’s heirs.
o “To A and heirs of his body”
o SC is the only state that recognized lineage and fee tails
Life Estate (LE)
o If O conveys a life estate, at the end of the life estate the remainder reverts back
to O, unless O states who shall take the remainder.
 O has a REV, future interest.
o Duration: Life of grantee
o NOT: Divisible nor descendible
o IS: Alienable (inter vivos)
Freehold Estates
o Everything above this point is a freehold estate.
o Freehold estates are determined by their seisin (seez-in)
o Seisin is the person the estate ends with, and the different ways the estate ends are
what makes it a freehold estate.
Nonfreehold estates
o Everything below
o Ending is denoted by a date.
Term of Years (TY)
o Duration: Fixed period measured in years, months, days.
o REV or remainder to third party
Summary of Future Interests Retained by Grantor
o Possibility of Reverter (PR)
o Future interest held by a transferor of a fee simple determinable.
o “To local school district, as long as teaching is conducted on Blackacre”
o Right of Entry (RE)
o Future interest held by a transferor of a fee simple subject to condition
subsequent.
o “to local school district, but if teaching ceases, O may reenter and retake
Blackacre”
o Reversion (REV)
o Automatically goes back to the transferor/grantor
o Is a “transfer of less than what the transferor owns”
o Fee simple becomes a life estate, LE FT, FT TY
Summary of Future Interests Created in Third Parties
o Remainders
o Contingent Remainder (CR)
o Vested Remainder (VR)
o Vested Remainder Subject to Open (VRSO)
o Vested Remainder Subject to Total Divestment (VRSTD)
o Executory Interests (EI)
o A future interest held by a third party that takes effect only when the preceeding
interest is divested or cut short by a condition subsequent.
o “To A and his heirs, bit if A does not graduate school by age 30, then to B”
o A has a present interest held in fee simple subject to an executory limitation.
o B has an executory interest held in fee simple absolute.
o Springing Executory Interest
 Where the grantor’s interest is the interest divested
 “To A for life, then one year after A’s death to B and her heirs”
 B has a springing executory interest, because it is from O’s reversion to B
o Shifting Executory Interest
 Where a third party transferee’s interest is divested
 “To A and his heirs, but if A uses Blackacre for commercial purposes,
then to B”
 B owns a shifting executory interest, because it is not from grantor
Concurrent Ownership
Tenants in Common: have separate but undivided interests in the property; each interest is
descendible and may by conveyed by deed or will. There are no survivorship rights.
Joint Tenants: Each has a whole interest in the property, not a fractional interest. Joint tenants
cannot pass their interest down through a will and a joint tenancy cannot be made through a
will. It must be made through adverse possession or by the same instrument, at the same.
Usually joint tenancy is created through will when a parent dies and leaves to 6 children who all
become equal owners.
- Time: Interest of each joint tenant must be acquired or vest at the same time.
- Title: All tenants must acquire title by the same instrument or by joint adverse
possession.
- Interest: All must have equal undivided shares and identical interests measured by
duration.
- Possession: Each must have a right to possession of the whole. After a joint tenancy is
created, however, one joint tenant can give voluntary exclusive possession o the other
tenant.
Probate: judicial action of passing things down via will.
Tenancy in Entirety: Only by marriage.
o Fee Simple Defeasible
 Conveyed to X “so long as land is used for Y”
 May last forever, but terminates upon the happening of a condition.
 Purpose: Land use control.
 Sometimes used to control trustee “A to B so long as B does not drink”
 Violation results in forfeiture
3 Types of Defeasible Fees
o Fee Simple Determinable
 Will have words of duration (To A Until, For so long as) followed by language of
automatic reversion to the grantor.
 Condition remains attached to land forever
 Land is freely alienable, devisable, and descendible so long as the condition isn’t
breached. (Mahrenholz)
 Because condition can be breached, there is possibility of Reverter.
 * Every fee simple determinable also creates a future interest for the transferor, in
case transferee or heirs break the condition. This future interest is called a
“possibility of reverter.”
o Fee Simple Subject to Condition Subsequent (FSSCS)
 Conveyed to X “on the condition that land be used for Y”
o Fee Simple Subject to Executory Limitation (FSSEL)
 Conveyed to x, “but if the land is ever not used for Y, then to Z”
Future Interests
Remainders: either vested or contingent. A remainder is a future interest that waits to be
actualized.
Vested Remainders: a remainder has vested if:
- If it is given to an ascertained person
- If it is given without a contingency, and can become possessory as soon as all preceding
estates expire.
1) Indefeasibly Vested
2) Vested Subject to Condition Subsequent
2) Vested Subject to Open
Contingent Remainders:
- It is given to an unascertained person
- It is given upon some contingency other than natural termination of preceding estates.
- (a remainder subject to a condition precedent)
Executory Interest – can only become possessory where another interest is divested.
Remedies
Partition – If a joint tenant or tenants in common cannot settle their differences, one party may
request a partition where the tract of land separated into individual lots or sold.
Title Assurance
- Purchaser: All parties who have paid consideration for the interest acquired, including
a mortgagee or lessee.
Unknown
Doctrine of Caveat Emptor: Buyer holds burden of properly examining the property before
purchase. “Buyer Beware”
License:
o Oral or written permission given by an occupant of land allowing the licensee to do some
act that otherwise would be a trespass.
o Eg: plumber fixing a drain. Guests coming for dinner.
o You don’t require a license to be in writing.
o Licenses are revocable, unless;
o License coupled with an interest: O grants A the license to take timber from
blackacre. A has an interest (profit à prendre) in the timber. Similar to easement
by necessity.
o Irrevocable license from rule of estoppel.
o These are both treated as easements.
Deed: Document showing transfer has occurred.
Ascertained Persons: Unascertained people include unborn children. Ascertained people are
people who can be named.
Condition Precedent: an event or nonevent (condition) that must occur (or fail to occur) before
an interest becomes vested (for a remainder) or possessory (for an executory interest).
Remainder: an interest in an estate that becomes possessory immediately upon the end of a
preceding estate.
Survivorship: Individual needs to survive preceding party to take.
Class Gift: a conveyance to a person of group based on description rather than name (A’s
children).
Mortgage: Owner pledges the property to secure the payment of a debt owed by the owner of
the property or someone else. The property become collateral.
First Possession
January 17, 2023 – Class 1 – Tuesday
Tues: Johnson v. M’Intosh (casebook, p.4)
January 18, 2023 – Class 2 – Wednesday
Wed: Pierson v. Post (casebook p. 20)
Pierson v. Post
SOC: Sued for rights to fox.
Facts: Post initially sued Pierson for rights to fox. Pierson appealed. The fox was captured on a
public beach, so no dispute to landowner.
Rule: Rule of Capture:
Issue:
Holding: The physical possessor (occupying) the fox carcass should be the possessor. (This may
be easier to prove than simply initial effort).
Reasoning: Goal: make it easier for parties to know if they have a complaint or not.
Dissent: Minority thought that post should have won because he was working to get the fox and
we should reward work and we don’t want to discourage work.
Livingston: makes an argument for post
- We have an objective that roman authors did not consider  foxes are a nuisance (they
kill chickens) and the outcome need to protect chickens and if hunters have rights to foxes upon
beginning the chase, they would be less likely to kill them.
- this dissent is weak/doesn’t hold: bc if the reason hunters go out to hunt is to
protect chickens it wouldn’t matter who killed them  the conclusion is hunters must have been
in it for sport.
Suppose the trial court had found that post had morally wounded the fox, that the fox couldn’t
run when Pierson carried the fox away.
Would the appellate court have entertained an appeal on that issue?
- On appeal, the majority opinion resolves the appeal because…
- The court does not cite any statutes or cases because there were none on point (cases on
point were English citing English cases)
- Puffendorf; bareyrac; court uses scholars to discuss the conclusions they made –
Pierson’s lawyer presented those authorities to court.
January 19, 2023 - Class 3 – Thursday
Thur: Armory v. Delamirie (casebook 56)
Armory v. Delamire
SOC:
Facts: chimney sweep wants the value of the jewel valued at the highest possible value.
Issue:
Holding:
Reasoning:
Dissent:
Hypo: 1 finder loses property & prop is found by second prop.
- Armory only says finder has rights over everyone but “true owner”
Relative title: US courts don’t decide who the true owner is, only who has best claim against all
other persons in claim.
How do you show true ownership?
- protecting prior possessor is protecting true owners, bc true ownership is hard to prove.
- If true owner shows up after goldsmith is forced to pay boy for value of the jewel, the true
owner still has right to the jewel, and goldsmith has paid for nothing.
Rule of Prior Possessors should prevail over current possessors. We want to benefit true owners
for more.
Hypo: Landscaper finds bracelet while working, landowner is owner of bracelet.
- Distinguished from Armory b/c owner of jewel wasn’t landowner where jewel was
found.
STERK: Why should we side with landowner?
- Because it would be against public policy to allow people to “find” things on other’s
land.
Fundamentals of legal arguments
1) Explain why your client should prevail. Provide reasons (recall the opinions in Pierson v.
Post).
2) Explain how authority permits (or requires) your client to prevail.
Finder should prevail  why  goal is to protect property right of true owner  finder should
prevail b/c if no one claims then they get ownership  but if they protect it don’t they get it
also?
Adverse Possession
January 23, 2023 – Class 4 – Monday
Mon Morning: finish our discussion of finders (with the landscaper v. landowner hypothetical),
and Van Valkenburgh v. Lutz
Van Valkenburgh v. Lutz
SOC:
Facts: Lutz’ had occupied neighboring land & lot 19 for years prior to Valkenburgh ownership.
Valkenburghs purchased land & Lutz claimed “right of way” & was awarded this settlement.
On what theory is Lutz entitled to notice?
- the city did not know lutz was on the property…
Issue:
Holding:
Reasoning: True owner may lose right to land b/c another party would not make improvement to
land where they do not believe they own it we do not want to encourage behavior of a true owner
benefiting from allowing another to believe they are owner  this is 1 reason adverse is just …
Dissent: One 15 year SOL requirement, Lutz is true owner & can’t cancede ownership to Van
Valkenburgh
Title by adverse possession – someone with no right to the land may obtain right by use of the
land. Goal: it eses the burden on the title searcher so they don’t have to retrace full history.
Notes: Why does Lutz lose?
1) It was found that Lutz didn’t meet threshold of “improvement”
2) Lutz previously admitted he knew he didn’t own the land
3) Lutz didn’t make a claim of title
a. If he had a deed, it would be better. A claim under a written instrument, you
only need to use part of the land to claim for all fo thee land. (Color of title).
b. If you don’t have a presumption of ownership you can only adversely possess
what you are using
Why allow others to occupy land without claim of title? (Goal of Adverse possession)
- tenant/rental  just occupancy does not equal ownership
- claim of title prevents tenants from becoming owners
- Lutz Concealed ownership previously when he got his right of way
- he thought the garage was being enacted on his own land  so it wasn’t a “hostile”
right to possession
- an adverse possessor has to act in good faith
- what pos. results would this bring ?
- prevents people from being bad actors and lying that they won’t try to take the
land.
-stating you won’t do something impacts the actions of the true owner, including
preventing them from taking action
Appellate Brief for Van Valkenburgh
Structure:
1) State a rule that governs case & that guarantees your client wins.
2) Give reasons that support the role
3) Cite authority that supports the rule
4) Provide an explanation of any authority that seems inconsistent with the Rule; show why
that authority, properly understood, is not inconsistent with the rule.
5) Show how the rule applies to your case & Supports your client’s position
Mon Afternoon: Continue with Van Valkenburgh and then begin drafting briefs for each of the
parties for the fact situation that is now posted on Canvas
Brief for Appellant
I.
Respondent has not established claim of right (essentially hostility requirement for
adverse possession)
Rule: A possessor who occupies land (which he believes is his) has
January 24, 2023 – Class 5 – Tuesday
Tues: Finish drafting the briefs for that fact situation and then turn to City of Tonawanda and
Tubolino v. Drake (both posted on Canvas). We will draft briefs for each of the parties in
Tubolino based on the facts that appear in that opinion
City of Tonawanda v. Ellicott Creek Homeowners Association
SOC:
Facts:
Issue:
Holding:
Reasoning:
Dissent:
Tubolino v. Drake
SOC:
Facts: P’s argue they have a quitclaim deed (deed which seller is giving you all their rights to the
property without telling you if rights are good or bad).
Because there is a quitclaim deed (written instrument) this case is distinguished from Tonawanda
and VV.
Issue:
Holding:
Reasoning:
Dissent:
January 25, 2023 – Class 6 – Wednesday
Wed: Finish the briefs of Tubolino and we will then turn to Walling v. Pryzbylo (which I will post
on Canvas early next week)
SOC:
Facts:
Issue:
Holding:
Reasoning:
Dissent:
January 26, 2023 – Class 7 – Thursday
Thur: Turn to Mannillo v. Gorski (Casebook p. 93)
SOC:
Facts:
Issue:
Holding:
Reasoning:
Dissent:
January 30th, 2023 – Class 8 - Monday AM
Mon AM: Walling v. Pryzyblo (n Canvas) and the 2008 NY statute (also on Canvas).
Walling v. Pryzbylo
SOC: Adverse possession claim in which both parties were unclear on the exact location of the
land boundaries, and Plaintiff built improvements while under the impression that
Facts: 1986: Wallings (Plaintiffs) purchased lot 22. 1987: They made improvements to their
land, including cultivating part of a parcel on lot 23.
1989: Defendants purchase lot 23.
1992: Plaintiffs place a bird house on disputed portion of Lot 23.
Issue:
Holding:
Reasoning:
Dissent:
-
-
What did the court find in this case?
o
Who Appeals, and on what ground?
Does the court of Appeals overrule VV?
o The court found X was just Dicta, and the court actually used other bases to
make their determination.
o Even though COA said many things in VV, court 40 years later says that was just
dicta and decides differently.
o After W v P, the governor instituted a law that requires a good faith
requirement. The problems with this?
 Hard to prove what people know
 People may be mistaken
Open and notorious is a substitute
501(3)  Sterk: The language of this statute does not make sense.
3. Claim of Right  This statute clarifies that it must be reasonable for the adverse possessor to
have assumed a claim of right.
543
1. Putting up a barrier or minor bushes is not enough on its own
2. Nor is mowing or other minor grooming.
NY Stattue Hypo
O conveys to A in 1980 and records the deed
O conveys to B in 1984 and records the deed
B knowns about the deed to A
B builds a house on the parcel, and lives there until 2016
In 2016, B sells to C, who finds the recorded deed from O to B, but not the deed from O to A
In 2023, A shows up and seeks possession
Since O gave a document to B, that affirms color of title, under the NY statute, regardless of
whether B actually believes they have true title.
The statute doesn’t tell us what is a reasonable basis for claim of title, should B have performed
a title search before accepting the title?
C hasn’t been on the land for 10 years, so adverse possession would not succeed.
We do not have a clear basis for when B may have a right to land as adverse possessor 
because B was aware their deed was invalid he never had a reasonable basis to believe that he
had title, ie) SOL of adverse possession never truly started (under NY statute).
Statute doesn’t tell us what a reasonable basis is.
What does it take for a possessor to have a reasonable basis for the belief that she owns the
parcel?
 Is deed enough? The deed describes all the land in an area. But you only occupy part of it.
The Deed would give a reasonable basis for a belief that you own all the land on the deed.
 If A sells land to B, with a. deed description that only covers ¼ of the total land. If the
landowner tells you the limit of the property goes past what it says on the deed, this
doesn’t hold up. It would have to be in writing and you would have to have a survey.

Manilo v G
Howard.
January 30th, 2023 - Class 9 – Monday PM
Mon PM: Mannillo v. Gorski p. 93 (and perhaps a start on Howard v. Kunto, p.99)
Manillo v. Gorski (1969)
Plaintiffs want an injunction to have the Defendants to stop encroaching on their land. There is
a 15-inch encroachment of the concrete stairs. So they want the steps removed, or just the
portion that are encroaching.
Rule: Open and Notorious requirement of adverse possession is in question… Rule is…
Court does not grant injunction. Court also does not side with Gorski’s claim for adverse
possession.
The result: Case is remanded for a trial on whether manillo had actual knowledge of Groski’s
encroachment, and if not, whether manillos should be required to convey the property to
Gorski and what consideration would be appropriate.
Hypo: Suppose the property had been a vacant lot. Gorski covered half of Manillo’s lot when he
built the house. There were only 12 feet left in Manillo’s lot. The case would not have been
decided in the same way.
- The court writes that when it is a visible and clear encroachment (open and notorious)
Manillo’s could have discovered the encroachment in the current case by doing a survey, but it
would not be in interest of public policy to have neighbor’s need a survey everytime there is a
minor dispute.
It leads to the issue of knowing what the true owner actually knew. How would the trial court
determine that the minillo’s did or did not know about the encroachment ?
Suppose the manillo’s had actually known of the encroachment?
- Open and notorious is an requirement to ensure that defendant land owner has actual
knowledge. If they manillos did know, then they would lose because they did nothing
and it doesn’t matter how small the encroachment is, if you know that the
encroachment exists.
Suppose Manillo’s didn’t know of the encroachment
Lets say disputed strip is worth $300 to manillo, and removing the stairs would cost $3K to
gorskis.
Gorksi needs to buy the strip. Gorski should offer something like $1000. Mention that 1K is over
3x the value, highlighting why it is in the other side’s interest to take the deal.
On what theory should Gorski’s accept a counteroff of over $1K. Why should they accept 1K
offer?
Manillo’s counteroffer $2500, Its still less than removing the stairs, and the long term value of
the encroachment is a recoupable value.
Suppose that the court had held that Gorski acquired the strip by adverse possession, would
you expect Manillo to buy it back?
The court wants to make sure that the Gorski’s get to keep the steps at no greater cost than
what the manillos would lose otherwise. If its valued at $300 dollars, gorski’s should only have
to pay what manillo’s would get through sale.
Cos Theorum – Economisst stated: Legal rules are not the primary factor in determining which
of two uses of property are going to prevail, the absent
Howard. Kunto
Hypo: Supose the Millers had occupied from 1946 to 1959. In 1959, the millers die. In 1960, the
Kuntos move into the vacant house. Howard Sues Kunto in ejectment.
Who wins?
January 31, 2023 – Class 10 – Tuesday
Tues: Howard v. Kunto and an introduction to possessory estates (p. 269-277); problems 1 and
3 on p, 274
Howard V. Kunto
What is the argument against tacking in Howard v. Kunto?
- The deed doesn’t describe the parcel that Kunto is occupying?
Why ?
- The surveyor made a mistake in surveying, so the deed was inaccurate, therefore it is
not in public policy interest to uphold this mistake.
- We want to be able to have “early certainty”
o If the mistake had been made a long time ago
- Trial court denied their claim for adverse possession, stating that the Kunto’s hadn’t
established continuity.
o Kunto’s possession was seasonal.
o Posessor may be there only a few months a year and true owner is never there,
what is the court’s argument for continuity?
 Perhaps only being present for part of the year would make it difficult for
the possessor to put true owner on notice or true owner, who only
surveys the land occasionally, or for 9 months of the year, would not be
on notice of the seasonal possessor.
o True owner should know the nature of their own property, if it is seasonal
property, you would know it is your responsibility to check
o The Kunto’s have a house on their property, and if the howard’s show up one
weekend a year, they would discover the house and know that someone else
lives there.
o Notice is an important reason for having a continuity requirement.
 We want to make sure the true owner discovers someone on their land.
- Promoting certainty of title:
o If someone can show up sporadically, there is not as much certainty of title.
If Kunto’s come up one weekend a year, should that satisfy the continuity requirement?
Possessory Estates
Key Info:
Fee Simple Absolute
“To A and his heirs”
- Transfers a Fee Simple Absolute to A. His heirs get nothing.
- “To A” are words of purchase
- “And his heirs” are words of limitation
- words of limitation only signal to lawyers what was transferred, they are not intended
to denote actual property transfer.
Life Estate
“To A for life”
- “to a” words of purchase
- “for life” words of limitation
Life Estate Pur Autre Vie X
“To A for the life of C”
- Life estate measured by the life of a third party.
Estates In Land
Reid Executes a deed to Blackacre
Different use right shared by separate “owners”
- Eg. Easements (right to use land for specific purposes, such as using a pathway)
Same use rights shared by separate owners
- Eg. Concurrent tenancies
Division of ownership rights by time
- Eg. Brown for life, remainder to Smith
- Eg. To Jones for two years (Landlord/Tenant)
Present Possessory Interests
-
-
Fee Interests
o An interest that is Potentially infinite in duration.
o Fee Simple
o Fee Simple Absolute – gives someone right to pass on the property.
Life Estates
o Measured by the life of a particular person
Terms of Years
o Ends at a defined period of time (tenancy).
Terminology
- Heirs (and distributes)
o Persons who take by intestate succession
o If there is no will, the property is passed by family
- Devisees
o Persons who take by will
- Issue
o Direct lineal descendants: children; grandchildren
- Collaterals
o Relatives other than ancestors and issue: siblings, cousins, nieces, etc.
- Spouses
- Landed Person
o Old term for someone with land.
- Present Possessory Interest
o Present Interest
o Someone who can use the property currently, at this moment.
- Future Possessory Interest
o Future Interest
o Must wait to take possession, but is still a party who has “an interest.”
Problem 1 – pg. 274
-
A has claim for life, B has claim forever
o In 1600 – to create a fee interest, you had to say “to B and his heirs” in order to
create a fee interest. Otherwise, B would just have a life estate, because forever
would only be to B as long as he could possess it, and it wouldn’t be
automatically passed down unless that was specified.
o In this circumstance, when A dies, and B dies, the land interest goes back to O,
since this grant was not truly in perpetuity.
o If O were dead, the property would go to O’s heirs.
o In modern law, you no longer need to say “and his heirs.” This becomes a fee
interest.
Problem 3
O conveys to A and her heirs- Fee simple absolute.
Situation 2 - B is A’s only child.
1. Can B’s creditors reach B’s interest in greenacre?
a. No. “A and her heirs” only convey’s what A’s interest is. It convey’s nothing to
A’s heirs.
2. Can A sell Greenacre and take a trip around the world?
a. Yes, it is A’s property, A can do what he wants. B’s creditors cannot reach this.
Would your answers change if its Aa for life, remainder to A’s heirs?
-
A now has a life estate
A can only sell his life estate, nothing further
“Remainder” creates an interest in A’s heirs.
A cannot write a will cutting out B.
February 1, 2023 – Class 11 – Wednesday
Wed: Knopf v. Gray (pp. 279-284)
Knopf v. Gray
Seeking declaratory relief – where court determines that the will only formed a life estate to
bobby and nothing more.
If Anette had waiting until Bobby died, would her position be any weaker?
- He executed a conveyance to P farms while living.
- If Bobby had a fee simply absolute and conveyed to P farms, P farms would get a fee
simple absolute.
- Where Bobby only has a life estate, P farms would get a life estate measured by Bobby.
o You may transfer a life estate but it will still be measured by the transferer, not
transferee.
- Anette didn’t have a right to the land until bobby’s death. She held a future interest in
the estate.
o A defense may say she does not have a right of ejectment until she takes the
land, others say it would prevent adverse possession ?
- Texas Statute – any estate conveyed is a fee simple unless expressly stated otherwise.
o P farms state there is no language to limit bobby’s estate
Why does the supreme court of Texas rule that the land should be a life estate, over the Texas
statute.
- The land passes to Annette (the remainder that would otherwise be passed to the
children).
-
Why would Texas legislature have reversed the common law rule that a deed conveys a life
estate unless the grantor otherwise specifies?
- Giving a fee simple creates incentive to improve the land, where a temporary stake in
land does not?
- Laughing ass statutes: cut off inheritance for relatives too far removed.
Valuation:
Suppose property worth 100K would you rather have A life estate or a remainder in fee
following the life estate?
A 5% life estate generates 5K per year for 50 years: total of 250K (91K discounted to present
value
o The right to own property for 50 years and earn money on that property, at 5K is
likely going to have a larger payout than simply receiving a 100K property in 50
years.
How much would it take to buy property that would be worth 100K 50 years from now?
- 9K.
White v. Brown:
- Testator’s will leave her home to “Evelyn white to live in and not to be sold.” Testator
dies without a will, with 12 surviving nieces and nephews.
- If the court had decided that the will created a life estate, what would have happened
to property at Evelyn white’s death?
Suppose Mrs. White discovers that adding a new furnace will cost 5K increase the value of the
house 10K, and save $500 in heating each year.
- If she has a life estate, what advice would you give her?
o Ask her heirs to help pay for improvements to land
Hypo: If the will had said “I leave the rest to you Bobby. Understand that the land is not to be
sold. But passed down to your children, Annette, Allison, and Stanley.
- The limiting language of who shall receive the land is eliminated.
- This may then create a fee simple absolute.
- “The land is not to be sold” what kind of estate is this?
o Disabling restraint – prevents person from selling or doing specific things on the
land.
o Except no one would have an interest in enforcing the restraint.
o Further, it is inconsistent with a fee simple absolute.
- One question is how long is the fee simple absolute to be enforced?
February 2, 2023 – Class 12 – Thursday
Thurs: Baker v. Weedon (pp. 284-294)
Was 30 minutes late to this class, perhaps rewatch.
Baker v. Weedon
SOC: Two or more persons (A and B) have rights to possess property at the same time.
Rule:
Facts: Anna Weedon suffered personal economic distress and wanted to sell the land (both her
life estate interest and remainderman interest) and put the money in a trust so she could use the
income from the trust to pay for her personal living expenses.
“to my wife anna.. and upon her death to her children if she has any, and in the event she dies
without issue then at the death of my wife anna…I give … all of my property to my
grandchildren.”
Issue:
Holding: Not economic waste.
Reasoning: economic waste does not mean the life tenant personally would be better off
financially, or that a court can act when a life tenant needs to sell (the remainderman’s interest in
addition to her own) for economic reasons. But only if the income from the property is
insufficient to “pay taxes and maintain the property” could a court order a sale.
The property in this case generated just enough to pay taxes and upkeep maintenance.
Dissent:
Baker v. Weedon: Argues waste if land is not sold. Normally, waste doctrine protects the
remainder against acts of the life tenant upon the property. Baker v. Weedon does this in
reverse.
Cam in 30 minutes late.
Children object to the sale bc:
The children thought the valuation of the property would be much higher than it actually was
likely to be. 336K
February 6, 2023 – Class 13 – Monday AM
Mon AM: finish up with Baker v. Weedon and move to a discussion of Paul Smith's College
Baker v. Weedon Cont.
Negotiations: You first think what you would be likely to get if you went to court. Next, you are
thinking about what the other side would do if they DON’T reach a deal.
Court remands: We are not going to demand a sale of property, we remand to court below and
try to have parties reach an agreement via negotiations.
Assuming property sells for 186K
Anna wants the interest on 186K  16K
Court says she is not entitled to that.
Negotiations: Anna wants to improve her livelihood after living on the margins. To get this, look
at other data of how other people in the town of similar age and status live. If we have enough
to reach anna’s reasonable needs. If we think we will get the 10K in court, we tell them that we
want 10K without wasting time and $$ litigating. Average income in the county is 10K, and it
would be reasonable for court to side with us based on this fact.
Grandchildren: There is no guarantee that Anna would get 10K. The median income isn’t the
proper statistic to look at. Income should be of a single individual rather than household. Why
focus on median income at all. If we just need to meet her needs, lets just look at her bills and
what her needs have been and try to meet that.
A has a life estate, B has a remainder.
- If A wants to use the land for growing crops, but B thinks the land is better suited to
raising cattle, can B prevail in an action against A for Waste?
o A should be able to use the land so long as it doesn’t interfere with B’s rights to
the land.
A and B both agree that the land is best suited for lumber production.
- A consults you to ask how many trees A can cut down.
- If A cuts down trees, B probably isn’t going to be able to sell as many trees.
- What should A do? Negotiate with B ahead of time to avoid litigation. But the question
remains, what should A’s position be?
o Because I have a life estate, I can cut down trees if I want to, and if I can’t cut
down trees, the value of my life estate would be 0. We assume o didn’t leave A a
valueless estate.
o How would we determine how many trees to cut down?
o Did o cut down trees? We could follow o’s practice.
o Or: What is efficient production in the industry? We should look at what other
people who have fee simple absolutes do.
o If A cuts down more than the average amount a landholder would, the waste
doctrine may give B authority to litigate against him. Contend waste.
Baker v. Weedon: Argues waste if land is not sold. Normally, waste doctrine protects the
remainder against acts of the life tenant upon the property. Baker v. Weedon does this in
reverse.
John Weedon writes the same will he wrote in Baker v. Weedon, except the property involved
was not a farm, but his family home.
- Anna now wants to tear down the home and build an office building.
- Would the grandchildren have a waste claim to enjoin Anna from tearing down the
family home?
- If the family home was worth more than the office building, that would be basis for a
waste claim.
-
-
If the office building increases the value of the land, the family would still bring a waste
claim to use as leverage, to say we will end our claim if you give us 20%. “Since we can
prevent you from building it.
Even though you, life tenant, are increasing the value of the land, we want to prevent
you from building on the land. Courts don’t like these claims because they see it often as
just a way for remainders to get money from life tenant.
o Sometimes if a will says “leave to life tenant, and the remainder to my X who has
always cherished the family history”
 In this case court would see evidence that the conveyor’s wishes would
be to prevent sale.
Defeasible Estates
Other Kinds of Fee Simples – Defeasible Fees
- When Fee Simples end short of infinity
Fee Simple Determinable – two ways to form
Words of duration
Followed by language which created an automatic interest in the guarantor.
Words of Condition
- “Grand land to church provided they use the land for xyz”
February 6, 2023 – Class 14 – Monday Afternoon Class
Mon PM: Turn to Mountain Brow Lodge, and we will get a start on the defeasible fee aspects of
the Lee Monument litigation in Virginia. Please read the deed and the brief posted on Canvas.
Paul smith’s college Language
1896: hotel company made a conveyance to the bishop.
“For church purposes only… and in case. She said …”
If you were arguing that the language created a fee simple determinable, what language would
you rely on?
-
If you were arguing that the language created a fee simple subject to condition subsequent ,
what language would you rely upon?
- “shall have the right to re-enter and take possession”
- Not:
Why does it matter whether the hotel company conveyed a FS determinable or a FS subject to a
condition subsequent ?
- The major difference is that while a fee simple determinable automatically ends if the
grantee (the person who received the land) does not fulfill the condition, the grantee's
interest in a fee simple subject to condition subsequent does not automatically end if
the event or condition occurs.
- Condition subsequent would have meant that
- Suppose it was a condition subsequent – right of entry was held by the hotel company
o If the son dies, all company assets go to the college, and college gets right to
reentry.
- 1937 – Son directs assets to college –
- If we decide that up until 1937 the hotel company had a right of entry and then makes a
transfer of its right of entry to the college. The right of entry cannot be transferred. The
court holds that
o The right of entry was extinguished.
o If the hotel attempted to transfer the assets to the college then the rights would
be extinguished.
o The church’s position in the case is that when the hotel company made this
transfer the right of entry was extinguished and the church’s rights became a fee
simple absolute.
- Hypo:
- 1896: Paul smith to the bishop (with restriction)
- Apollo paul smith dies intestate
- 1937 phelps smith dies with a. will leaving al lof his property to the college.
- 2015: Church closes.
- Suppose Paul Smith had owned the property as an individual, and the court had
concluded that he created a fee simple STCS (Subject to conditional Subsequent).
- Unassignable, undevisible, uninheritable  cannot pass on the right of re-entry.
o When was the right of reentry destroyed? When paul smith died.
 That is not true, the court is quoting another case which is
distinguishable. RoE were always descendable.
 Descendible v devisable.  Divise: a provision of a will.
  descendible  you received something from a death, but not a will.
- Right of entry – a right to take possession when a condition is broken.
o Under FS STCS
o
- Possibility of reverter – also gives an option to take control of property and can be
devised by will
Why would common law make rights of entry inalienable and non-devisable?
Mountain Brow Lodge v. Toscano
SOC: Conditions restraining alienation are void, but use restrictions are allowed. (Fee Simple
Subject to Condition Subsequent). Restraints on alienation are not allowed.
Facts:
Issue:
Holding:
Reasoning:
Use restrictions are allowed because disallowing gift conditions would result in less donations.
Dissent:
Mountain Brown Lodge Variations
“To the lodge, but in the event of sale or transfer by the lodge, the grantor shall have a right of
entry”
In the actual lodge case the lodge is seeking to quiet the title. Lodge wants to sell the property.
Restraint on alienation was invalid.
“To the lodge, but the event the land is no longer used as a meeting hall, the grantor shall have
a right of entry”
- It could sell the lodge to anyone who wanted to use it as a meeting hall. It is still
alienable interest but it is still a limited restraint on alienation.
Why is there a difference between these two restrictions ?
Ink v. City of Canton (1965)
SOC:
Rule: When an eminent domain prt
Facts:
Issue:
Holding:
Reasoning:
Use restrictions are allowed because disallowing gift conditions would result in less donations.
Dissent:
Lee statute Case Note and VA brief
February 7, 2023 – Tuesday – Class 14
Tues: start an introduction to Future Interests and I hope we will get to Browning v. Sacrison
(which is posted on Canvas).
Mountain Brow Lodge cont.
Suppose 5 years after litigation, the lodge built a rental apartment building on the premises and
maintained it for 15 years
- The toscano heir then bring an action to eject the lodge from the premises.
Does the lodge have any defense to this action
- if they had built upon it and used it for 15 years it would be reasonable that they had
- Tuscono says you used this for lodge purposes and what you did was built an
apartment building.
- Tuscano’s say they have a fee simple absolute, the lodge does not have
leverage. The lodge will have to say you do not have a fee simple absolute.
- Lodge would say they haven’t violated the restrictions if they were using the
money for lodge purposes. It was a fee simple determinable in that instance, not a fee simple
absolute.
- Lodge may also say that they did violate the conditions of your fee simple
absolute, but that the tuscano heirs took no action for 15 years.
- What interest did the tuscano heirs have as soon as the apartment building was
built? A fee simple absolute.
If the lodge had a fee simple determinable and was now using it as an anpt building, what
interest did the toscanos have as soon as it was built? A fee simple absolute.
Does the lodge have any defense?
Would the result be different if the Toscano heirs had a right of entry as opposed to a possibility
of reverter?
IF SOL didn’t start to run when the heirs had the right to enter, when did it start to run? If
would have to start then. Many states adv pos SOL runs with right of entry.
Lee Monument Litigation
If you were a black person contemplating housing in Richmond VA would you have been
comfortable buying a house on or near monument avenue. No.
The governor wanted to relocate the statue.
The Allans heirs made a conveyance to the Lee Monument Society (LMA) and LMA made the
conveyance to the state of VA.
Mr. Gregory was the husband of the wife. So he married into ownership.
There were no restrictions that the Allan’s gave to the LMA. Fee simple absolute. The family
retained nothing.
There is no language suggesting a possibility of reverter or right of entry.
A reverter is not automatic.
Future Interests
February 7, 2023 cont.
Future Interests (Chapter 5)
Those held by the grantor (FI in Grantor)
- Revision
- Possibility of Reverter
- Right of Entry
Those held by someone other than grantor (FI in Third Parties)
- Remainders
o Indefeasibly vested remainder
o Vested Remainder Subject to Partial Divestment
o Vested Remainder Subject to Complete Divestment
o Contingent Remainder
- Executory Interest
Problem pg 326
Remainder vs reversion
“To A for life, then to B if B gives A a proper funeral”
- We won’t know if B fulfils obligation immediately on A’s death.
- Executory Interest – anything that is not a remainder.
o In NY, a contingent remainder
-
A remainder – capable of becoming possessory immediately upon death.
o Because we have to wait, this cannot be a remainder
Example 3:
- To A for Life, then to B and her heirs”
- Are there any circumstances where B’s interest will not become possessory?
- If B dies before A, B’s interest will pass to B’s heirs.
- B still controls where the property goes, so there aren’t really any conditions. What B
has is an indefeasibly vested remainder.
Example 5:
- “to A for life, then to A’s children and their heirs”
- Child is c. C has no interest until A dies.
- Is there anything that would prevent C from taking the property upon A’s death? If A has
another child.
- C’s interest is a vested remainder, subject to partial divestment.
- Vested Remainder subject to open (alternative writing).
Example 6:
- To A for life, then to the heirs of B
- We currently don’t know whose B’s heirs are. Currently it could be his brother, and then
B could have a child and B would have a child and that would become the heir. B does
not have true heirs until the moment A dies.
- Contingent Remainder.
Example 7:
- To A for life, then to B and her heirs if B survives A.
- We do not know if B will take upon A’s death. Condition is attached.
- Condition precedent.
- Contingent remainder because we do not currently know who will take at A’s death.
Example 4
- To A for life, then to B and her heirs, but if B does not survive A to C and his heirs.
- Survivorship contingent attached.
- Vested remainder subject to complete divestment.
Additional example
- To A for life, then to B and her heirs if B survives A, and if B does not survive A, then to C
and his heirs
- Contingent Remainder
What is the difference between 4 and additional?
- Additional – condition included in the same clause as the grant. The same clause that
gives this to B imposes the condition.
- Example 4 – if you stop at the comma, it looks like B has a remainder and then its taken
away.
- Additional Example is a conational precedent
-
Example 4 is a condition subsequent. Grant to be and a condition that would divest B if
something occurs.
Where the condition occurs in the same clause as the grant it is a condition precedent.
Whether courts care about the placement of a comma
Tomorrow start w browning and then move to swonson.
February 8, 2023 – Class 16 – Wednesday
Wed: deal with Swanson v. Swanson (posted on Canvas) and Folsom v. Rowell (in the
casebook).
Rewatch first 15 minutes of class (rewatched on Tue Apr 11)
Rewatch: Questions on future interests
Whats difference between
Browning v. Sacrison
-
Facts: Kate Webb’s will (created a present possessory estate or a life estate) left farmland
in a life estate to her daughter, Ada Sacrison. The will left the remainder to Webb’s
grandsons, Franklin Browning and Robert Sacrison (defendant). Finally, the will
provided that in no event should the property go to the grandchildren’s father, Clyde
Browning. Webb died in 1954. Franklin predeceased Ada in 1972 without having had
any children. Franklin’s widow (plaintiff) filed a petition seeking an order that Franklin
and Robert’s remainder interests under the will were vested upon Webb’s death. The trial
court ruled in favor of Robert, finding Franklin and Robert’s remainder interests to be
contingent upon them surviving the life tenant Ada. Franklin’s widow appealed.
Kate: Deceased
Robert Sacrison: Defendant, grandson of Kate, wants
Franklin Browning: Grandsonon of Kate, died before mother, Ada.
Ada Sacrison: Daughter of Kate Webb, Mother of Robert and Franklin, Life Estate
interest
Franklin’s Widow: Plaintiff, seeks an order determining that Franklin and Robert’s
interest remainder were vested on Webb’s death.
PP: trial court found for Robert, stating that vested interest was contingent on each party
surviving life tenant ada.
Issue: If a devise is made to a life estate with a remainder conditioned upon an ambiguous
form of survivorship, is the remainder interest generally deemed to be contingent upon
the remainderman surviving the life estate?
Rule: If a devise is made to a life estate with a remainder conditioned upon an ambiguous
form of survivorship, the remainder interest is generally deemed to be contingent upon
the remainderman surviving the life estate.
Holding: Yes. If a devise is made to a life estate with a remainder conditioned upon an
ambiguous form of survivorship, the remainder interest is generally deemed to be
contingent upon the remainderman surviving the life estate. Traditionally, early vesting
of estates was preferred so as to promote the free transfer of property. However, in the
modern world, other factors, including tax consequences and the intent of most similarly
situated conveyors to delay the vesting, weigh in favor of delaying the vesting of an
interest until the property can be fully enjoyed by the remaindermen. In this case, the trial
court did not err by finding that Franklin and Robert’s remainder interests were
contingent upon them surviving the life tenant Ada. Webb devised her farmland to a life
estate upon her death, and the remainder to Robert and Franklin upon the life tenant
Ada’s death. This language indicates an intent to condition the vesting Robert and
Franklin’s interests on their survival of Ada. As Franklin did not survive the life tenant,
he, and by extension, his widow, have no interest in the farmland. The judgment is
affirmed.
Early vesting “If either of them be dead, then all to the other”
“I give and devise to my daughter, Ada W. Sacrison, A life estate for the term of her natural life
in and to all real property belonging to me and the time of my death, excepting only the
residence property at Pilot Rock described in paragraph II of this will, with remainder over the
death of the said Ada W Sacrison, share and share alike, to my grandsons, Francis Marion
Browning and Robert Stanley Browning, or, if either of them be dead, then to all other subject
to a like condition as to the use of the same or any portion of the proceeds thereof for Clyde
Browning, as mentioned in paragraph II of my last will.”
In light of this language, how could Franklin’s wife argue that she should share the remainder
with Robert?
What future remainder did the grant create?
If it vested at the death of Ada what would it be before ada’s death?
- it was contingent until ada’s death
- “Or either of them be dead” implies that the interest vests when ada dies, is robert’s
argument.
-
“If either of them be dead, then all to the other” but when does
“If either of them be dead at my death…” would be better\
Tools for construing ambiguous language
- Plain or Ordinary meaning
- Language used elsewhere in the instrument
- Purpose expressed in the instrument or implicit from the language in the instrument
- Constructional preferences
- Extrinsic evidence about the intent of the testator or grantor
Court in browning used at purpose expressed in the instrument – keeping money away from
browning’s father.
Constructional preferences – “A shift from the vesting of the states”
- Why do we have a preference
“The corpus of this trust upon my wife’s death, shall pass to my nine children, hereinabove
named, to be divided among them in equal shares, share and share alike. If any of my children
should not be in life at the time of death of my said wife, the share of such deceased child shall
go to his or her surviving children, per stirpes”
Where Benny dies before his mother, leaving a daughter and leaving a will devising all of his
property to Cardozo law school.
- Court finds this to be a Vested Interest Subject to Complete Divestment (STCD)
Swanson v. Swanson
SOC:
Rule:
Facts:
Issue:
Holding:
Reasoning:
Dissent:
Finish Fulson v Rowell and Intro to Estates.
February 9, 2023
“trying to get a whole loaf rather than a half”
Court states that the remainder is vested.
What does the dissent rely on – precedent of other Georgia cases.
-
In Point 5, page 4, the dissent looked to other provisions in the will.
There is a provision that says the heirs can exclude third parties from the will.
So the will is saying it was not the intent.
Sterk wants us to focus on how a lawyer uses the tools available to make an argument,
in this case, the other provisions/looking to the will itself.
Folsom v. Rowell
SOC:
Facts: Howard Folsom had 6 children, the estate would go to all his children who took care of
his youngest child with mental disabilities, Alma.
The will stated of none of his children took care of Alma, the estate would go to whatever thirdparty did.
From 1960-1973, Alma lived with her sister Lillian Rowell, and Rowell’s children (Rowell
heirs.) Rowell then died.
From 19773 to 1994, Alma lived with Mitchell Folsom, the widow of one of Alma’s brothers.
From 1994-2001 Alma lived with Linda smith, Howard Granddaughter. Smith and Mitchell both
cared for Alma during this time.
Howard’s grandson’s helped with housework but did not directly care for Alma.
Alma died in 2001.
Issue:
Holding:
Reasoning:
Dissent:
The Folsom Heirs say the interest couldn’t vest until Alma died.
- Indefeasibly vested means no one else can share
- Defeasible – an interest can be diluted
Rowell argues that the interest vested as soon as she took in Alma.
Since the agreement only mentions children and outsiders we must mean that grandchildren
must have been included.
- This is an argument from other language in the text
- What does children mean? Because we are trying to exclude outsiders, grandchildren
must be excluded.
Smith also says that the Testator intended that outsiders could take if they cared for Alma
Folsom at any point in her life. So even if smith is an outsider, she should take.
- This is an argument of purpose
- The purpose was to provide an incentive for people to take care of Alma.
There is disagreement about when courts would use extrinsic evidence to
Future interests
W’s will provides “to my husband for life, remainder at my husband’s death to my surviving
children.”
W Dies 2000, H Dies 2017, and Child dies in 2010.
Those held by the grantor (FI in Grantor)
- Revision
- Possibility of Reverter
- Right of Entry
Those held by someone other than grantor (FI in Third Parties)
- Remainders
o Indefeasibly vested remainder
o Vested Remainder Subject to Partial Divestment
o Vested Remainder Subject to Complete Divestment
o Contingent Remainder
- Executory Interest
Co Tenancies
Tenants in Common: have separate but undivided interests in the property; each interest is
descendible and may by conveyed by deed or will. There are no survivorship rights.
- Each tenant shares the same piece of property.
-
Each co-tenant has equal right to possession of the whole property and shares equally in
rent and value.
Assignable, devisable, and inheritable.
A has 50%, B and C each have 25%, A would receive 50% of rents, but all would have
right of possession.
Joint Tenants:
Each has a whole interest in the property, not a fractional interest. Joint tenants cannot pass
their interest down through a will and a joint tenancy cannot be made through a will. It must be
made through adverse possession or by the same instrument, at the same. Usually joint
tenancy is created through will when a parent dies and leaves to 6 children who all become
equal owners.
In some jurisdiction, the four unities must be present to make it a true Joint Tenancy.
- Time: Interest of each joint tenant must be acquired or vest at the same time.
- Title: All tenants must acquire title by the same instrument or by joint adverse
possession.
- Interest: All must have equal undivided shares and identical interests measured by
duration.
- Possession: Each must have a right to possession of the whole. After a joint tenancy is
created, however, one joint tenant can give voluntary exclusive possession o the other
tenant.
o “To A and B as joint tenants with right of survivorship and not as tenants in common”
o Most courts require the document to say “with rights of survivorship” or else it
will be treated as a tenancy in common.
o Last one alive owns the whole property outright. Interest is not transferable.
o Any tenant can turn joint tenancy into a tenancy in common by destroying one of the
four unities.
o Policy:
o Avoids probate. Efficient but courts don’t like it.
o Strawman issue: passing interest to one party and then having that party convey
back to circumvent the ability to not pass something down.
o Remedies: Parties in a joint tenancy that cannot agree on an outcome may bring an
action for partition.
o Leases: A lessor joint tenant dies, the lease is terminated even if it has not reached its
term.
o Probate: judicial action of passing things down via will.
o Mortgages: Because it is credit with the intent to be paid back, most jurisdictions say
title is not transferred until the foreclosure is complete, and therefore joint tenancy is
preserved until that moment.
o Unilateral severance: Where someone uses a strawman to convey land back to
themselves as a tenancy in common, to allow them to pass their interest down.
o Secret Severance: Most jurisdictions require public notice of severance to prevent
people who survive from doing away with the severance one the other members die.
o
Tenancy in Entirety: Only by marriage.
Ouster: When an occupying tenant acts to prevent the other co-tenants from using the
property.
o Using the land in such a way that prevents the other co-tenant’s use is ouster. As is
changing the locks.
o A co-tenant must have demanded to use the property and been denied before making
an ouster claim.
An accounting: A co-tenant collecting rent may offset costs associated with generating and
collecting rent by keeping records of what is spend on taxes, interest, mortgage principles,
management fees, actual amounts spent on repairs, and utilities.
Sale distributions:
o A builds a 100K house on property owned as a tenant in common with B and C. Property
sells for 300K. The land is worth 150K. The house is worth 150K. A gets 1/3 of 150K for
the property, plus 150K for the house.
o Improvements: Tenant who paid for improvements will get a separate payout for the
value added to the property, but will no be reimbursed for amount spent on
improvement. 10K spent, but only 5K added means only a 5K payout, on top of the 3
way split to the property.
Partition: A petition brought by either a tenant in common or a joint tenancy.
o Partition in Kind: Land split into parcels of equal value, each given to tenants.
o Partition by Sale: Court ordered sale of the land, proceeds are distributed to co-tenants.
o Reasons for PBS: appraisal for a partition in kind may be too costly, the land may
not be suitable for partition in kind, the co-tenancy may not be easily separated
to PIK.
o Partition is favored by courts because…
Riddle v. Harmon
SOC:
Rule:
Facts: The trial court determined, via summary judgement quieting title to her widower, that
she did not. Ms. Riddle and Mr. Riddle owned a property jointly. Ms. Riddle wanted to sever
this joint tenancy and cut remove her husband from ownership. She terminated the joint
tenancy and gave herself an “undivided one-half interest in the property.”
Issue: Whether Francis Riddle unilaterally terminated a joint tenancy by conveying her interest
from herself as a joint tenant to herself as a tenant in common.
Holding:
Reasoning: When a joint tenant grants their ownership to a third party, even if that third party
grants it back, the joint tenants become tenants in common because the joint tenancy has been
destroyed.
Importance:
Dissents:
Class
February 13, 2023 -
Rule Against Perpetuities
“To A for life, remainder to A’s children for so long as one of A’s children is alive, remainderto
A’s grandchildren for so long as one of A’s grandchildren is alive, remainder to A’s great-great
grandchildren for so long as a great great grandchild is alive, remainder to A’s great great great
grandchildren.”
- Restraint on alienation because the interest is so far in the future that no one can ever
devest.
- Rule against perpetuities: No interest is valid unless it must vest or fail not later than 21
years some life in being at the time of its creation.
- Allowed people to keep wealth in their family for a long period of time – RAP has been
abolished in many states, New York still has common law.
- People use this to tie up wealth in their family and wealthy people want longer RAP.
- Applies to Contingent remainders, but not vested remainders.
What is the difference between these various kind of tenancies?
Problem 1: Pg 398
- “To A,B,C as joint tenants:
o A Conveyed to D
o B dies intestate, leaving H and an heir.
-
A’s conveyance does not affect B and C.
A severs their interest in property.
When B dies, C becomes sole owner.
C and D become tenants in common.
C has 2/3 and D has 1/3.
#2 pg 398. O makes a grant to A and B as joint tenants for their joint lives, remainder to the
survivor.
- Future Interest: created in the grantee (either remainder or executory interest)
- Remainder: Contingent on A or B dying.
What happens if A conveys her right, title, and interest to C and then dies?
- Suppose we have common law joint tenancy?
- How are the consequences different?
-
Q: Does the grantor want the joint tenants want to give the grantees the option to choose
to end the joint tenancy (either party may do this) but if we have a joint life estate with
contingent remainder.
Hypo:
Oscar Zilch conveys Blackacre “To my sister Susie and my granddaughter Gertrude, as joint
tenants with right of survivorship. (treat as joint life estate with contingent remainders)
- At O’s death, Susie is 80 and Gertrude is 18.
- Susie immediately coveys “all my right, title, and interest in Blackacre to my friend
abner:
- Susie Dies.
Who owns blackacre?
- If Susie dies, the life estate ends. So the remainder goes to Gertrude. Even though the
rights have been transferred to Susie’s life estate. Common law joint tenancy. Tenancy in
common between abner and Gertrude.
- Likely Oscar didn’t think Susie would outlive Gertrude.
- Oscar probably didn’t want Susie to make the joint interest into a common interest.
- Joint tenancy is severable by either tenant.
- What is an argument you can make to say this isnt’ a joint tenancy?
- “It would have been easy for Oscar to say we want joining life estates with contingent
remainders” if that’s what he wanted to do.
- If the language stopped at “joint tenants” it would have created the same thing. The same
is true
- The grantor was being careful to not saying xyz
- The way to prevent this issue would be to say “as joint tenants, and not as tenants in
common”
Afternoon Class - Monday
Riddle v. Harmon
-
Frances riddle conveys to herself a one-half interest in the property.
They previously held a joint tenancy.
The husband is claiming ownership of 100% of the property.
o Since they were joint tenants, at her death the interst should pass to him.
o
A conveyance of an interest in a joint tenancy turns the joint tenancy into a common
tenancy.
She severed the joint tenancy and was then free to convey the tenancy.
If she had only executed a will, the joint tenancy would have taken precedent over the
will and the husband would have been won.
She executes a deed, not a will, to herself. And writes “the purpose of this deed to to
sever the joint tenancy.
The husband argues that you cannot convey a deed to yourself.
You need to convey it to someone else and then back to you “a straw man” – it would
prevent the problem
If you want to prevent the joint tenancy from being severed – don’t set up a joint tenancy.
Set up a life estate with contingent remainders.
Hypo: if she severs the joint tenancy, and now the husband dies, his portion of the property
becomes a tenancy in common between the heir and the wife’s beneficiary.
Riddle v. Harmon seems to let the wife have it both ways.
What can the husband do to protect himself against that?
- Only true way is to sever also.
A severance of a joint tenancy has to be recorded in the recording office, it at least prevents the
situation where the wife waits until it is convenient.
Smith v Bank of America
-
Hassid conveys “all my right, title, and interest” to bank of America
Bank of America conveys “all my right, title, and interest” back to Hassid
Hassid then borrows $300K and executes a mortgage to the bank
Hassid dies
What rights does the bank have?
Hypo: if hassid and smith had joint life estates, bank took back hassid’s interest when hassid lies
Another issue: Joint interest in a bank account
Hypo: hassid and smith open a bank account, smith adds 5K and Hassid adds 1K. If hassid takes
out 3, smith has a right to what he put in, and a claim for hassid taking out his money.
Delfino v. Vealencis
– Hypo
-
Value of entire parcel for residential purposes = $300K
If garbage removal business remains,
o Value of house and business = 30K
o Value of remaining land = 120K
Would Delfino prefer partition by sale or partition in kind?
Which would Vealencis prefer? Why?
February 14, 2023 – Tuesday
Not in class, retwatch
February 15, 2023 - Wednesday
Spiller v. Mackereth (Contd)
There was a letter sent to mackereth from spiller
Hypo:
Suppose Mackereth had written the following to spiller
-
-
“please find enclosed an agreement signed by the ABC corporation expressing its
willingness to rent our warehouse for 4K per year. Please vacate as soon as possible so
that ABC can take possession.”
How is the hypo different than the letter in the actual case?
o In the hypo, Mackereth has proposed a valuable use to make sure the property is
being used in an efficient way, but in the case the letter does not request any
usage and just requests payment.
o Mackereth tried requesting rent, they want money not anything else.
Spiller stays in possession, and mackereth sues for 2K for the first year of Spiller’s
possession
Someone in Spiller’s position occupies the warehouse
o Mackereth walks into your office
o What advice do you give her?
In a minority rule jurisdiction (cohen) what advice would you give spiller if he wante dot
occupy the warehouse?
Hypo:
Suppose sister and borther inherit home as tenants in common.
- Sister lives in the home for five years while the brother is off making money.
- After five years, brother presents sister with a bill for half the rental value over the past
five years.
Does sister have to pay?
Hypo #2
Suppose spiller finds a tenant who will pay $2K per year, and informs mackereth. Mackereth
writes back
- Don’t be a fool. ABC corp will pay 4K per year. Enclosed is a letter indicating that ABC
is willing to move in immediately at 4K. if you rent for less I intend to hold you liable for
2K per year.
- Spiller rents to the original renatn, and sends mackereth a check for $1K
- Rather thancashing the check, Mackereth sues for an additional 1K.
- What result?
Hypo #3
A and B are co-tenants.
1990: A leases land to X for $400 per year
2005: A dies, X continues to pay rent to A’s heirs.
2023: B seeks to enter the land for the purpose of leasing to someone other than X.
A’s heirs object, claiming title by adverse possession.
Who wins?
Would the situation be different if B had tried to enter in 2006 and been rebuffed by A’s heirs or
X?
2/16/2023
Swartzbaugh v. Samspon
SOC: One cotenant cannot exclude the other cotenant by saying “I don’t like what you are doing
with the property,” you can get one of three remedies.
Facts:
Issue:
Holding:
Reasoning:
Dissent:
One joint tenant has the right to lease it without consent from other tenant.
If Mr. Swartzbaugh wanted to open a boxing gym without leasing would he be able to?
- Yes, he has full rights, just like she does.
Mrs. Swarzbaugh wants 100% of the property to be used for walnut tree growing, but her
husband has a different view of how the property should be used.
Each tenant has the right to make use of the land even if it is not the most valuable use ($15 v.
Partition – forced sale.
Accounting: Ouster – a relevant facts within a claim. There is not a claim for ouster.
- She could bring a claim for half the rent, which was $15 a month, not much.
- You need concrete facts to support that she was ousted from opportunity to use the land
in the way she wanted.
- She can say I had walnut trees, they were making money, her husband effectively
excluded her from making money off of them when he chopped them down.
Mesne Profits (pronounced mean profits) – Reasonable rental value
- If she can show that by putting up the pavilion she was excluding her from planting
walnut trees which would be more expensive.
If the boxing pavilion was going to make more money than the trees, she could seek the rent.
Repairs and Improvements
Hypo:
3 cotenants; partition sale yields 60K
- If no repairs or improvements, how should proceeds be divided?
o Divide by 3, 20K each.
- Now suppose Cotenant A built a house at a cost of 30K, and the sale yielded 60K. How
should the proceeds be divided.
o Give cotenant A a credit for the $$ he invested in the house, and then divide the
profits by 3.
-
-
o How much should the credit be for building the house?
o Suppose A built the house with ugly siding, and most people consider it an
eyesore, this costed $15K. The land itself was worth 45K.
o The credit should only be for the increase in value vs a credit for cost.
o The house cost 30K and only increased the value of 15K.
A is taking a risk that his improvement will not increase the value of the house, We want
to avoid imposing that risk onto his cotenants.
o If there is an agreement beforehand between tenants, that would trump he rules
here.
What if this were a repair instead of an improvement?
o Suppose A spends 30K, but the house increased value of premises by only 15K.
 Should A receive credit for cost fo the improvement, or for the value of
improvement?
 Cost = 30K; Value = 15K; Sale price = 60K
o If Cost, A takes 40K; B and C take 10K each
o If Value, A takes $30K, B and C take 15K each
Rewatch the last 10 mins of this class.
February 20th, 2023
Monday, AM
Sawada v. Endo
SOC: Tenancy in entirety protects the party not within the suit from hacing their interests
diminished.
Facts: Swadas are seeking to have the conveyance that mr. Endo and ms. endo set asisde for his
sons to be (severed? Or nullified?). Mr. Endo and Ms. Endo owned the property as tenants by the
entirety. There was a motorcycle accident where the sawadas were injured and sued mr. Sawada.
Endo’s sons are claiming tenants by the entirety to protect their conveyance. The Sawadas are
claiming it was a fraudulent conveyance.
At the time of this case, the Sawada’s had the accident, and then conveyed the property. It
therefore appears he was conveying the property to avoid his debts.
The court concludes it is not a fraudulent conveyance – because the wife’s interest in the
property is not subject to any claims creditors have …
The sawada’s didn’t have any recourse before the conveyance. If the sawada’s didn’t have any
recourse for the property before the conveyance then the Sawada’s weren’t made worse off by
the conveyance.
Issue: Whether the interest of one spouse in real property, held in tenancy by the entireties, is
subject to levy and execution by his or her individual creditors.
Holding:
Reasoning: There is no unfairness to the creditor by holding that the Estate by the entirety may
not, without consent of both spouses, be levied upon for the separate debts of either spouse.
Dissent:
Notes: Hawaii joins group III in this decision
Dean Phillips: 4 Groups of tenancy by entirety. (only 19 states acknowledge tenancy)
Group I: Mass, Mich, NC) the estate is essentially the common law tenancy by the entireties.
(Married Women’s Property Acts do not apply).
Group II: (Alaska, Arkansas, NJ, NY, Oregon) the interest of the debtor spouse in the estate may
be sold or levied upon for his or her separate debts, subject to the other spouse’s contingent right
of survivorship… Alaska also says that by statute the interest of
Group III: (Delaware, DC, FL, Indiana, MD, Missouri, PA, RI, VM, VA, Wyoming) attempted
conveyance by either spouse is wholly void, and the estate may not be subjected to the separate
debts of one spouse only…
Group IV: Kentucky + TN hold that the contingent right of survivorship appertaining to either
spouse is separately alienable by him and attachable by his creditors during the marriage… the
use and profits, however, may neither be alienated nor attached during the coverture.
Married Women’s Property Act: Effect was to abrogate (suppress) husband’s common law
dominance over estates and provide equality of couples to exercise ownership over the whole
estate.
Hypo: The Endo’s are brother and sister who hold the property in joint tenancy.
- If mr. endo had injured the sawadas all the same, would there be relief to the sawadas?
- If the sawadas sought relief before the conveyance occurred, would they have relief? Yes, they
could sever the joint tenancy and the sawadas would get Mr. Sawada’s portion of the property or
force the sale. An auction sale of Mr. Endo’s half interest in the property. The property was a
single family home.
If you got a lean, if the endo’s ever sold then mr. endo would have to pay out the lean holder
before collecting.
Once you have joint tenancy from the auction, you can partition against sister endo. Sicne the
court would find that the partition in kind wouldn’t make sense bc it’s a single family home, to
would partition a sale, and so force a sale, Sister endo would get her interest and sawadas would
get mr. endo’s former interest (now there interest).
Why do we hold that the sawadas can be worse off because the endos held title as tenants by the
entirety?
Suppose Sawada v. Endo had arisen in NY. Would the conveyance by the endos have been
fraudulent? NY is a group II state. In NY,
Tenancy by the entirety is not severable by either spouse, each spouse has a right to survivorship
that doesn’t go away.
Tenancy in entirety is only via marriage (I think)
Afternoon
Hypo: Frump, an owner of a 5M apartment building as a tenant by the entirety with his 4th wife,
has an accident, and injures the Smiths. The Smiths seek to levy on Frump’s interest in the apt
building.
Write a brief for FRUMP:
Rule: A debt seeker (creditor) of one tenant cannot seek credit on a property owned in entirety.
(Swada v. Endo) The justification is XYZ.
Arg:
Brief for the Smiths:
Rule: A debt seeker of one tenant cannot seek credit on a residential property owned in entirety.
- This is good but it is not the strongest way to state the rule, try again to rewrite to make
it appealing to the court.
Rule: A commercial landlord cannot insulate his assets from creditors through status of tenant by
the entirety. (the reason why this is better is because it labels him as a commercial tenant and
also explains what the evil of any other rule is).
Justification: people of substantial wealth should not be able to escape all liability in a tort
setting.
- look for out of state cases where a tortfeasor recovered from a tenant in entirety of a
commercial property.
Arg:
In re Marriage of Graham
SOC:
Facts: MS Graham (petitioner) earned 70% of couple’s earnings and assisted in payment for
husband’s MBA degree which he got while the two were together. District court awarded
petitioner 30K form the estimate future value of the MBA of 80K (unclear if that is over lifetime
earnings).
Under CO common law, each partner would walk away from the marriage with what they each
owned, and the husband would be required to pay alimony. The marriage equality act stated that
any property acquired during the marriage, no matter whose name it was in, said that there would
be equal division of that property.
Issue: Whether in a marriage dissolution proceeding a master’s degree in business administration
constitutes marital property which is subject to division by the court.
Holding: CO Sc. Court affirmed appellate division’s ruling it is not divisible property.
Reasoning: The purpose of division of property is to allocate to each spouse what equitably
belongs to hi or her. The CO sc uses textualist argument to determine “all” to be evidence the
legislature wanted the term “property” to be inclusive.
In Elvis v. Elvis CO Sc. Determined military pay was not property because it did not have any of
the elements of cash surrender value, loan value, redemption value, lump sum value, or value
realizable after death. Other factors include whether it can be assigned, sold, transferred,
conveyed, or pledged or whether it terminates upon the death of the owner.
Sterk: The couple had no joint assets created during the marriage, so the only thing the wife
could have requested was the degree or value of the degree. If there was other property she
would have sought that.
One definition of property used to determine judgment: “anything with exchangeable value used
to make up wealth or estate”
Dissent:
Uniform Dissolution of Marriage Act: requires a court to divide property, without regard to
marital misconduct, in such proportions as the court deems just after considering all relevant
factors. The Act defines marital property as follows:
*Marital property means all property acquired by either spouse subsequent to the marriage
except:
a) Property acquired by gift, bequest, devise, or descent;
b) Property acquired in exchange for property acquired prior to marriage or in exchange for
any of the above forms of property
c) Property acquired by a spouse after a decree of legal separation; and
d) Property excluded by valid agreement of the parties.
Hypo:
Suppose a married couple. At marriage, wife is a dentist. She earns a substantial income during
the marriage, and by the time of the divorce, her dental practice is worth 1M.
- Does the dental practice count as marital property under the CO statute?
- what does it mean the business itself is worth 1M?
- the customers help create a value. If she were to leave, people would continue to
come to the practice, even if there is a different dentist there.
- it is different than the Graham’s degree because it is not alienable. So we cannot
treat the degree as property.
- If you are trying to figure out the earning potential of a degree, you may have to
figure out what your prior earning potential before the degree was?
- perhaps this decision is saying that one should be careful in how much they contribute
to their spouse’s education or personal development.
Problem 1, 462:
On Oct 1, L leases Whiteacre “to T for one year, beginning October 1.”
On the following September 30th, T moves out.
What are L’s rights?
- It was known that the lease would end in one year and there is no recourse because L had
notice.
If it said “from year to year”
L can probably sue T to recover a full year’s worth of rent, because it was assumed that there
would be renewal unless there is 6 month’s notice.
2/21/23
Tuesday
Holdover Tenancies
Landlord leases premises to tenant for a 5-year term at a monthly rent of 3K.
Two weeks before the end of the lease term, tenant tells you that her new premises will not be
ready for another three months. Landlord has told her he will not extend her lease for three
months. Tenant asks you what you should do?
- eviction proceedings are expensive. They are also slow. We don’t have to worry about eviction
if she stays because the proceedings may take up to 3 months.
She may become liable for the rent due during those months.
How would landlord get more than 3K a month? The rental value for the 3-month period.
Suppose the rental value has risen after the lease term is up, from 3K to 5K, landlord would have
a claim for 5K.
Landlord can either treat the tenant as a holdover, at 3K, or treat tenant as a trespasser, and
recover the market value of the lease.
Under common law, landlord may be able to hold the tenant to a 1-year lease. (only a few
jurisdictions still have this). These laws were originally instituted to hold tenants accountable to
leaving when they say they will.
Tenant holds over and sends landlord a check for 3K. If landlord asks you for advice, what
would you say?
- accept the 3K and write a letter saying that this is money paid for the holdover of this
month, but you will still be seeking eviction the next two months.
- If the market value is higher, you may not want to accept.
Hypo: Apartment Rentals
You decide you want to rent an apartment. You see an apartment you like, and the rent is right.
- Do you go to the landlord or the landlord’s agents and ask the landlord to sign a lease
you have drafted?
- The landlord has paid for a lease to be drafted bc they deal with leases all the times and
the terms are going to be favorable to the LL and not the T.
- Public policy could mandate a standard form lease for all residential leases.
Fair Housing Act - Ms. Murphy
§3604(a) – after the making of a bonafide offer she cannot rescind it.
February 22, 2023
Defense: If there is a policy that is discriminatory, you can to make an argument that there is
economic reason for it. If a tenant has lower income, then the landlord is not discriminating in
putting a minimum income, they are protecting themselves against lost income.
Monday February 27 th , 2023
Mon AM: finish our discussion of Ernst, and then we will consider the hypothetical in the email.
We will discuss that hypothetical in conjunction with the Kendall case.
Landlord Tenant Law
Types of Leases
o Term of Years: Lease for a fixed amount of time.
o Periodic Tenancy: Like a month-to-month. Renews at the end of each period. Express
notice required to end periodic tenancy.
o Tenancy at will: Landlord and tenant mutually agree until one party does not. No notice
or 30 days notice needed.
o Tenancy by sufferance: Tenant enters the lease by one of the other three types and holds
over.
o Remedies: Evict, or renew.
Landlord’s duty to deliver possession
o In English rule, landlord had to deliver right of possession and actual possession.
o American rule: Landlord need only deliver right of possession.
o Reasoning: Landlord only contracts for right to possession, parties can contract
for more if they desire. In fact, they should.
o
Ernst v. Conditt Court of Appeals of Tennessee (1964) (pg 500)
SOC:
Facts: Complainants/Owners/Lessors: Walter & Emily Ernst | Defendant: A.K. Conditt:
Purchaser | Lessee: Frank Rogers
The lessee covenants to pay rent at 4.2K yr, at $350/mo or 15% of all gross receipts. Lessee will
be responsible for payments even if a sublet is approved.
Amended Leese read: term will end on July 31, 1962, not June 30, 1961. Also Frank will remain
liable for the performance of the lease while Conditt sublets. The lessee is responsible for
damage to property, aka, Frank.
Conditt operated a go-cart track on property from August-Nov 1960. He paid august, September,
and October rent. Conditt paid June 1961 also. It is not clear if Defendant continued to use
property.
Complainants seeking $2,404.58 + 4.2K + additional amount for removal of improvements.
Claim that the agreement between rogers, original lessee and Defendant is an assignment of the
lease, making D liable.
Defendant claims that it is a sublease and he is not responsible.
Chancellor of lower juris found the agreement to be an assignment.
D appealed, claiming it is a sublease on the grounds: the agreement uses the word sublet and
there should be no other meaning assigned to it.
The signing of the agreement was for the expreess purpose of reassigning the dates and for
initiating approval of a sublet.
Rogers kept a reversionary interest in the property with the clause outlining he would be
responsible for any failed obligations of the lease.
Issue: Whether the transfer of the leasehold interest in the premises from rogers is an assignment
of the lease or a sublease.
Holding: It is an assignment of lease.
Reasoning: “If the instrument purports to transfer the lesee’s estate for the entire remainder of
his term it is an assignment, regardless of its form or the parties’ intention. Conversely, if the
instrument purports to transfer the lessee’s estate for less than the entire term – even for a day
less – it is a sublease, regardless of its form or of the parties’ intention.
The rule for determining function of written instruments is to determine the intention of the
parties – City of Nashville v. Lawrence.
The terms sublet and subletting are not conclusive to the intent…
Landlord wins, defendant is liable for the rent.
Conditt promised to perform all the conditions in the lease.
Landlord  T  T1 (assumes covenants)  T2  T3
How would you use Ernst v. conditt in this hypo?
The court found that the contract between Rogers and Conditt intended to transfer all of the
rights of a tenant from rogers to conditt, making it essentially an assignment.
In Ernst v conditt the court didn’t’ decide this issue because it said that there was assignment and
therefore privity of estate between complaintants and defendant,
The court had to decide whther the agreement was an assignment or sublease. The court went
through that discussion because it didn’t think there was any privity of contract between them.
Ernst
L can’t recover on a privity of estate theory because t3 has the privity.
Ernst v. Conditt says that assumption of covenants does not establish privity.
How does the court decide that there was privity of estate and that it was an assignment?
The agreement called it a sublease… but instead we look at language
Traditional distinction between assignments and subleases: Assignment entire remainder of the
term (gave up all rights), Sublease: subletter retained rights to reenter the property.
There is no language, so the only thing to fall back on is the traditional definition.
Privity of Contract
Privity of Estate
- Horizontal privity of estate – Between original covenant forming parties.
- Vertical privity of estate -- between one original covenant party and successor interest
holders.
- Burden of a successor does not run/is not enforceable at law against someone
taking a new interest in the land. If an original owner has a fee simple absolute, and someone
takes the land by adverse possession, the adverse possessor does not take the burden of the
easement.
Privity of … define
L  T  T1 (assumes covenants)  T2 -> t3 (sublese)
- L has a right to evict
- L is not in privity of contract to T3, which is financial liability, but may evict
L is in privity of contract with T bc they entered an agreement
T1
T2
T3
Dissent:
Notes:
Two ways the courts have distinguished between a sublease and an assignment:
1)
Case Hypo:
Suppose a shopping center developer and Macy's enter into a lease with the following provisions:
1. Rent = $20,000 / yr + 1% gross sales over $1,000,000.
2. Macy's may not sublet or assign the premises
3. Macy's must use premises as a department store
4. 10 year term
Three years into the lease, Macy's wants to assign the lease to Tiffany & Co. Advise Macy's.
“macy’s may not sublet or assign without the consent of the developer”
Macy’s could say the inclusion of “without the consent of the developer” it suggests the
developer has to reasonably consider the offer, because why else would there be a provision
here.
Contrary, it would have been easy to include reasonableness language but the parties didn’t.
Suppose:
“Macy’s may not sublet or assign without the consent of the developer. Developer reserves the
right to withhold consent without offering any reason for the refusal to consent.”
- alienability – Mountain lodge – restraint on alienation of a fee interest – court said we aren’t
going to uphold that restraint.
- we want people to be able to
- public policy concern with restraint on alienation – it prevents the people who may be
able to put the land to the best use from making the most use out of it. If I want to sell I probably
am not maximizing its efficiency, so someone else should be able to.
What reason is there to allow the landlord to be arbitrary?
- just determining if someone is solvent is a burden on the landlord
- if a tenant didn’t want the arbitrary clause included then
“Macy’s has an obligation to be reasonable”
- show why tiffany’s isn’t the same kind of business as macy’s, perhaps that they are less
solvent.
- if they are more or equally solvent
- This rental agreement is dependent on the gross sales of the tenant  Tiffany’s
may meet the minimum amount but may not produce as much gross sales
- Foot traffic from the department store will bring in more money to the other stores in
the shopping center, tiffany’s may not draw as large of a clientele or same demographic.
- Ernst had a percentage of sales clause 
- motivation: over a 10 year lease you can make up for unpredictable factors such
as inflation
- dual incentivization, developer is motivated to support macy’s  keep the
shopping center in good working condition to support business
- Macy’s may not be willing to commit the risk if they don’t know if the location
will work, so landlord can’t set a high base rent
-
Page. 517 problem 1B
- whether the landlord denying the lessee to transfer rights to an abortion clinic
constitutes reasonable withholding
- The tenant would say it is just as financially viable and therefore there is no
reasonable denial
- show that abortion centers affect the foot traffic of other businesses or the principal
business
- would need to show this with evidence
- may reduce the willingness of donors to contribute
- non financial 
We will discuss that hypothetical in conjunction with the Kendall case, and that discussion will
probably spill over into Monday afternoon. We will also start to discuss Berg v. Wiley and landlord
remedies for tenant breach on Monday afternoon.
Kendall v. Ernest Pestana, Inc (1985)
SOC: regarding that a lessee may not assign the lease or sublet without lessor’s prior written
consent.
Facts: City of San Jose (Owner), leesed the property to Irving and Janice Perlitch (Lessees),
who assigned their interest to Ernest Pestana (respondent).
Issue: Whether, in the absence of a provision that such consent will not be reasonably withheld,
a lessor may unreasonably and arbitrarily withhold his or her consent to an assignment.
Prior to assignment, Perlitchs entered a sublease with Robert Bixler on Jan 1, 1970 for a term of
25 years with scaling rent.
Holding:
Reasoning:
Dissent:
Quiz
1) Yeshiva Owns -- X
2) Larry Ron Tim --- X
3) Nancy --- X
4) Daughter has rights, not liable ? Because the son had only a life estate, he was not
entitled to lease the property for a period longer than his own lifetime. As a result, the
pilot's lease expired at the son's death, and the daughter was entitled to possession.
5) Cannot constitute waste – or vested remainder --- X
6) 3 years –
The daughter will be entitled to tack her possession to that of her father, but her father
was only in occupation for 9 years. Eight additional years have passed with the
daughter in possession for a total of 17 years. Since the applicable statutory period is 20
years, the daughter will not acquire title for another three years.
The daughter meets all of the other requirements for adverse possession. Construction
of the cabin makes possession open and notorious, and even though there was initially
permission, construction of the cabin without the truck driver's permission negates any
inference of permission.
7) The friend –
Landowner's will created an indefeasibly vested remainder in the daughter. Her
conveyance to her friend was an effective transfer of that remainder. When the mother
remarried, the mother's present possessory interest ended, and the remainder became
possessory. The friend now had a fee simple absolute.
8) Surviving grandchildren -- X
9) 21 years –
Because the neighbor was not in possession for a full year, that year interrupted his
continuous possession. The applicable statute requires 21 years continuous possession,
and the neighbor has only been in continuous possession for the last 19 years.
The tolling provisions are inapplicable. The period of minority expired when the
daughter reached age 18, and she had 10 years to sue before she became
incompetent. The mental incompetence provision applies only if she was mentally
incompetent at the time the cause of action accrued, and she was competent when the
cause accrued.
1) Diane
2) Larry Ron Tim Harry
As to affirmative waste, liability results from injurious acts that
have more than trivial effects. Generally, injurious has meant acts that
substantially reduce the value of the property in question — but with
some exceptions. Usually, for example, minerals can be extracted,
even though doing so reduces the value of the property for holders of
future interests, if the minerals were being extracted when the future
interests were created.14 Trees can be cut if clearing the land is
regarded as good husbandry.
Permissive waste is essentially a question of negligence — failure
to take reasonable care of the property. Kimbrough v. Reed, 943 P.2d
1232 (Idaho 1997), is illustrative. In this case, the life tenant let the
water pump fall into disrepair with a resulting loss of lawn, shrubs,
and trees. The life tenant was assessed damages for waste. See also
McIntyre v. Scarbrough, 471 S.E.2d 199 (Ga. 1996), holding that a life
tenant’s failure to pay real estate taxes is waste, resulting in forfeiture
of the life estate.
Ameliorative waste consists of uses by the tenant that increase
rather than decrease the market value of the land. The traditional
view was that such actions by the tenant gave rise to liability on the
theory that the fee holder was entitled to take possession of the land
in substantially the same condition as it was when first transferred to
the tenant. Any material alterations were waste. (This notion
underlies the court’s opinion in Baker v. Weedon.) Today a significant
number of courts reject this view. The leading case is Melms v. Pabst
Brewing Co., 79 N.W. 738 (Wis. 1899), holding that life tenants may
make substantial alterations or even demolish structures when
conditions change, provided the market value of the remainder (or
reversion, as the case may be) is not diminished by these actions.
Such an outcome is virtually certain if the life tenant has a long life
expectancy. See Thomas W. Merrill, Melms v. Pabst Brewing Co. and
the Doctrine of Waste in American Property Law, 94 Marq. L. Rev.
1055 (2011).
Tuesday March 28, 2023
Mon PM: start to discuss Berg v. Wiley and landlord remedies for tenant breach
Tues: continue a discussion of landlord remedies, and I hope we get to Sommer v. Kridel.
Remedies to landlords - Landlord remedies for tenant breach
Berg v. Wiley (1978) pg (518)
SOC:
Facts: Berg (Lessee,, restaurant owner), Wiley (Lessor, Property Owner)
Court
Issue:
Holding: Self help is not the preferred method, landlords should not take matters into their own
hands, landlords should seek summary proceedings.
Reasoning:
Court awarded loss profits to give wiley incentive to use the appeals process in order to get the
proper judgment, otherwise, Wiley would have no incentive to use summary proceedings, which
the court wants to incentivize him to do, since that is standard process. Wiley did not use judicial
proceedings to evict, and that’s what the court wants him to do.
Dissent:
Notes: Did berg breach the terms of her lease?
Court never made a decision
If wiley had not locked berg out on July 16, and instead waited until September 16. In the
meantime berg made no repairs and did not return to the premises. Could wiley change the
locks?
- there is a higher chance that berg had abandoned the premises.
berg is breaching the lease, health code violations
- landlord should provide notice to berg
- landlord still needs to bring a summary proceedings
- The average time of bringing the proceeding to eviction is 4 months, in addition to
hiring an attorney.
Abandonment is a question of fact – if Berg had left 50K worth of equipment on the property it
is not as good of an argument that tenant had abandoned 50K worth of property.
Is berg v. wiley good for landlords?
- no, before this case landlords could use self-help if the conditions were met
- Peaceable and justified?
- Post berg v. Wiley
The rule’s impact on non-breaching tenants
- before Berg, landlord was never entitled to use self-help if the tenant was not in breach
- berg doesn’t help non-breaching tenants
- therefore, Berg helps breaching tenants
- it incurs a cost to landlords – it is likely to increase a cost to rents
- Why would a court decide berg v. Wiley given it does not help who it should and
rewards those it shouldn’t?
- peaceable evictions of breaching tenants could still become nonpeacable
quickly.
- landlords are not qualified to determine who is breaching and who is not – it is a
question of law for a judge not for a landlord per se
- Berg v. wiley may create
Landlord rents out restaurant premises for 3 years at a rent of 1K/mo
- Tenant has left and closed the restaurant last week after 8 months. Tenant advises
landlord that tenant will not be back.
- Landlord approaches you for advice. What advice would you give?
- Landlord could wait until the end of the lease term, and then bring an action for the entire lease
term. 3 years minus 8 months.
- the tenant might not be able to pay that all in a lump sum (insolvent),
- and landlord will also lose money in potential earnings (premises is vacant)
- you may not be able to locate the tenant
- vacant premises invites vandalism
- vacant property makes it harder for someone to make money.
Landlord alternatives
- relet to tenants
- adopt surrender
Accepting surrender relieves the tenant from future obligations to pay rent, but doesn’t release
tenant from obligations to pay damages.
- Landlord might be able to accept surrender but bring action for anticipatory breach
- if the rent changes from 1K to $800, the landlord can ask for $200/mo worth of
remaining rent.
Rewatch this class, zoned out after 25 mins
How does landlord refuse surrender?
- you can send a letter
- “I will relet on your account and hold you liable for difference in rent”
March 1, 2023 Class X – Wednesday
Wed: finish landlord remedies and should get a start on tenant remedies and the VIllage
Commons case. Also, please read the Lounsbury and Kernochan cases posted on Canvas, and, in
light of those cases, consider how you would write a brief for the landlord and for the tenant on
the facts in the email.
Wednesday – rewatch, came in 20 mins late
Mitigation / right to assign or sublet
Sommer V. Kridel (1977)
SOC: A landlord is required to mitigate damages in certain jurisdictions.
Facts:
Issue:
Holding:
Reasoning:
Dissent:
Suppose landlord leases an apartment to tenant at 1K/mo, tenant leaves.
Landlord advertises the apartment for $700 per month for six months, and rents the apartment.
Landlord then brings an action against Tenant for breach, seeking $300 per month.
What defenses can landlord raise?
Suppose your jurisdiction has just decided Sommer v. Kridel.
You represent a client who wants to assign a lease to an eager assignee. The lease prohibits
assignment. The jurisdiction has not adopted a rule requiring landlord to be reasonable.
- What advice would you give client?
Suppose you represent a tenant who is contemplating a 20-year lease of commercial premises for
use as a restaurant.
- would tenant prefer that landlord bear the responsibility for maintaining the flooring and
replacing or repairing bathroom fixtures?
- would a tenant contemplating a 2-year lease have a different position?
March 2, 2023 – Class x – Thursday
Thur: turn to warranty of habitability and Hilder v. St. Peter
Village Commons LLC v. Marion County Prosecutor’s Office (2008)
SOC:
PP:
Appellants-Plaintiffs: Village Commons LLC & Rynalco, Inc
Appelees-Defendants: Marion County Prosecutor’s office and Carl Bizzi
Plaintiffs appeal the trial court’s judgment in favor of Defendants. Cour of appeals affirmed.
Facts:
Issue: (1) whether the exclusive-remedy provision of the lease between Landlord and the MCPO
barred the MCPO from asserting that it was evicted by acts or omissions of the Landlord;
(2) Whether the trial court’s findings that the MCPO was both actually evicted and
constructively evicted were clearly erroneous
(3) Whether a provision limiting the MCPO’s time to sue barred the MCPO’s defenses and
counterclaims.
Holding:
Reasoning:
Dissent:
In the burst pipe hypothetical, if tenant leaves, and landlord brings an action to collect rent for
the balance of the lease term, what defenses can tenant assert?
1) Constructive Eviction: Would any breach by landlord constitute a constructive
eviction?
2) Actual Eviction
Suppose in Village commons the tenant had left, and had prevailed on its constructive and actual
eviction defenses. Tenant rents alternative space that costs twice as much.
- Would tenant be made whole by a defense that excuses tenant from paying rent?
- Why not?
The constructive eviction remedy involves a risk
Hypothetical
Landlord owns a four-story building and leases the top two stories to a multiplex movie theater
for a 10-year term at an annual rent of 1M. The leased space totals 15K sqr ft.
Landlord then decides to add a story to the building, which requires bracing of the existing
columns for support. Landlord informs tenant that it plans to enter the premises to make
necessary repairs and installs bracing that uses up 12 sqr feet of the floor space in the leased
premises.
Landlord starts building the extra story. Meanwhile, tenant stops paying rent and seeks
declaration that it is excused from further payment of rent for the remaining 8 years of the lease.
Tenants arg:
Rule & Reason - If the rule were: tenant is excused from rent if you interfere with their
space, the landlord will be encouraged to negotiate with the tenant before taking back space that
rightfully belongs to the tenant. (Fifth avenue)
Distinguishing Lounsbury – Since the tenant could have removed the logs, it wasn’t a
true eviction because it was within tenant’s control. Unlike here or 5th avenue where client could
not do anything.
Landlord’s arg:
Lounsbury v. Snyder (1865) (Canvas)
action by the landlord for rent. The landlord originally rented entire space to tenant. Tenant later
says “I don’t need entire space” and landlord reduces rent and takes part of the space back.
Landlord starts putting logs on the space that is still the tenants, and tenat says “ok I have been
evicted” and stops paying. Landlord wins.
SOC:
Facts: Lease permitted the landlord to come in and make improvements. It allowed the landlord
to temporarily take up space in that instance, but the landlord is supposed to put everything back.
Issue:
Holding: Not an eviction.
Reasoning:
Dissent:
The Fifth Avenue Building Company v. Kernochan (1917)
SOC:
Facts: Tenant was
Issue:
Holding:
Reasoning:
Dissent:
Monday March 6, 2023
M AM: we will finish up with Lounsbury and Kernochan and turn to Hider v. St.Peter
Hilder v. St Peter
SOC: Implied warranty of habitability.
Facts: Language in the lease says that the tenant takes the apartment as is.
Issue:
Holding:
Reasoning:
The court determined that an implied warranty of habitability is best policy. The court said that
you cannot waive this right. It is because rental agreements used to be for farmers and other
handy people who maintained their own grounds, but in the modern era buildings are more
complicated and people do not have as many skills, so the landlord is responsible for maintaining
the habitability.
The implied warranty is nonwaivable.
- this implied warranty cannot be negotiated out. Why?
- Landlords have more bargaining power than they have previously.
- You are depriving tenants the opportunity to waive the implied warranty, and
potentially get a reduced rent. And that is a paternalistic attitude of the courts, to say that it is
more important that tenants have habitable homes than cheaper rents
- Another reason for the unwaiveability is that cleanliness of conditions impact more than
the tenant, public health is a concern as well. It might have impact on the property values of
next-door neighbors etc. Allowing a building in disrepair would bring down the market value of
other tenants.
Dissent:
Warranty of habitability
A state statute requires a landlord in a building with 8 units or more to maintain an intercom
allowing tenants to buzz in guests.
- Landlord in an 8-unit, 4 story walkup installs a system that doesn’t let tenants buzz
guests in, but requires tenants to meet the guests.
- Tenant brings an action for breach of the warranty of habitability.
- she argues that a buzzer is a basic necessity
- Landlord may argue
- In this specific case the
- The housing code is enforceable by inspectors and municipal officials, not necessarily
enforceable by tenants. Not every violation of the housing code was designed to be enforced by
tenants, some are enforced by public official through fines.
- housing code – creates a Prima Facia case for breach of warranty
- The court says 554 – the absence of a housing code … the codes can’t address every
problem… the housing code is not fully determinative in what was a breach and what is
remediable.
- The housing code provides a starting point
Afternoon
M PM: we will discuss damages for breach of the warranty of habitability, discuss rent controls,
and if we are fortunate, start on the Sale Contract Questions posted on Canvas. Read the sale
contract on pages 574-587.
Hypo:
T rents for $600/mo
Toilet leaks and there is no hot water. T asks landlord to repair and landlord refuses. What
options does T have?
- if it is something outside of the T’s control is in need of repair, like boiler for hot water
…
- In hilder, T stayed in apartment, at end of her lease, she brought an action for
damages. Breach of contact, the losses incurred.
- withholding all rent –
- repair and deduct from rent
- constructive eviction
- Sue for damages
Standard breach of quiet enjoyment (previous case) – what remedy was available? Constructive
eviction – the breach by the landlord has created constructive eviction, and T is therefore
excused from the burden.
Rent withholding
- why would courts not like this remedy?
- it doesn’t offer the courts any ability to enforce, because it is hard to follow up with
landlords if they have actually fixed the problems. It is easier for court to award damages.
Breach of warranty: Measure of damages
suppose tenant rents premises at $800/mo
- fair market value for habitable premises = 1K
- as is, value of premises = $600
Court concludes landlord has breached warranty of habitability. How much should tenant
collect in damages?
- tenant does not need to bring damages claim, because they have already fixed the
issue if they pay directly instead to
30 minutes in, rewatch – measure of damages convo
If the landlord has agreed to provide a washer/dryer in the premise and there is not, T is
damaged even if the apartment is still “habitable.”
Suppose T rents for $800/mo. Fair market value for habitable = $2K, As is Value of premises =
1K.
- why would landlord rent under market?
- landlord is going to decide it will cost too much to get property in habitable condition,
so they rent for less than market value.
- It would not make sense to then make landlord to pay for all months where premises
was uninhabitable. This would reward the tenant beyond T’s reasonable expectations. T
expected premises at 1K, so the damages would be $0, bc landlord was already giving it away.
SOC:
Facts:
Issue:
Holding:
Reasoning:
Dissent:
Tuesday March 7, 2023
T: we will finish the Sale Contract Questions and start on Marketable Title and Lohmeyer v.
Bower.
Rent Controls
Came in 7 mins late, retwatch
Supply Demand Chart (took photo, insert it)
- in NYC rents are only controlled in some apartments, why not all?
- it diminishes the incentive to create new housing
- rent controls were never income based
- They are a byproduct of wwII
- there was a huge demand for housing
- they instituted rent controls to prevent landlords from creating huge profits on
jacking up prices
- they never intended to keep the program
- the scheme never applied to new buildings and was never income based
What is the incentive to have rent stabilized houses?
- we keep people in their neighborhoods that they may otherwise leave, creates
investment, security, longevity
- rent controls are designed to benefit tenants but they benefit some classes of tenants
and maybe not others
- It reduces the incentive for landlords to improve the property
Sale Contract – pre-closing
- why not just a direct transfer, why an agreement at all
- financing, this can take time
- need to quality review the property, inspection
- title search
- seller may need time to leave and buyer may need time to sell their house.
Closing
- Buyer gets a deed at the closing
-
Transfers of Land
Sale contract (pg 574)
Purchase price of 400K, earnest money 40K
Paragraph 11 makes contract contingent on buyers ability to get $320K mortgage at rate of 5k
1) Two days after executing the contract, but before paying the full earnest money
deposit, buyer has change of heart and wants out of the contract.
a. What alternatives if any does the buyer have. What remedies does seller
have?
b. Attorney review – within 5 days after the date of acceptance, attorney may
approve / disapprove / propose modifications / or propose suggested
changes  9B) buyer may disapprove the contract, in this event, the seller’s
lawyer may say walk away. Because its only 2 days into the deal.
c. If the seller has a change of mind , and the buyer still wants the house 
buyer could bring an action for specific performance, 2 days after the sale
contract, the contract allows the seller’s lawyer to disapprove
2) Suppose buyer applied for mortgage, and bank makes a commitment conditioned on
buyer’s sale of buyer’s present home. If buyer is unable to sell the home, can buyer
escape liability under the contract.
a. What remedies would be available to seller?
b. Paragraph 11 is designed to protect the buyer
c. If there were no mortgage contingency clause, the seller would be obligate to
pay the money outright.
d. Seller agrees to a contingency clause because it widens the pool of
applicants.
i. But there is a condition in our contract that once buyer has received a
loan, conditioned on buyer selling their house, that if the house is not
sold buyer is still on the hook, because it shows that buyer did not try
hard enough to sell the house.
3) How is the situation different if the bank determines that the house is only worth
350K and will therefore not make a mortgage commitment in excess of $280K
Wednesday March 8, 2023
W: we will finish Lohmeyer and work on the duty to disclose defects. Read pages 603-607 in the
casebook together with Gallagaher v. Ruzzine and the Property Condition Disclosure Statement
posted on Canvas.
Sale Contract Contd.
3. Suppose Buyer Applies for a mortgage, and bank makes a commitment conditioned on
buyer’s present home. If buyer is unable to sell the home, can buyer escape liability
under contract?
- Mortgage contingency clause: Buyer tells the seller that he could not get the mortgage
commitment and provide notice that they will not be able to close
- Seller:
4. What options does the buyer have if the seller delivers a survey showing that a fence is
situated on seller’s parcel, located six inches closer to seller’s house than the rear
boundary line? On the other side of a fence is a row of hedges. The Survey does not
indicate who planted the hedges or who built the fence.
- Buyer: One option would be to bring a specific performance action:
- Seller Response: It is not within seller’s power to provide adequate title if the neighbor
likely has an adverse possession claim to the 6 inches.
- Seller can tell Buyer they will give buyer the contract they have power to give you
- Buyer: can ask for a reduction in purchased price as a result of lack of 6 inches.
- not likely to succeed?
- Seller doesn’t have any need to agree
- If seller thinks they could get
- Buyer: Can bring a claim for damages, but buyer wants the house not damages, so this doesn’t
do him much good.
- Buyer: best option may be to just take the property as is, since 6 inches is de minimis.
- Buyer: Could walk away from the agreement.
5. Suppose the contract specifies that closing is to take place on April 15, 2023. On that
date, seller shows up for closing, but
a. Refuses to deliver a deed:
Buyer: could bring an action for specific performance.
- buyer is likely to prevail, because seller can deliver what the seller promised.
- difference in the 6-inch case is that seller could not deliver 6 inches because the
rights were contested.
b. Seller is willing to perform, but needs 1 month (may 15)
Buyer: could put money in escrow with a broker, not to be released until seller moves out
- Seller might not agree because:
6. Suppose the buyer shows up to at the closing, but hasn’t secured the funds to pay the
contract price. What options are available to the seller?
Seller: can contend to keep the 10% earnest money deposit, or at least part of it.
Would your answer be different if the sale contract did not include a “time is of the essence”
clause?
- party has ability to ask for reasonable period of extension without it.
- with it, performance must commence on the date specified
Suppose the contract specifies that closing is to take place on April 15, 2023. On that date,
seller shows up for closing but
a) Refuses to deliver the deed
a. Buyer may compel for specific performance.
b. This may not be resolved for a few years, and they will want to live somewhere
in the interim.
c.
b) Is willing to deliver the deed, but remains in possession and is unwilling to vacate before
may 15.
a. You could put a portion of the purchase price into escrow, not to be release until
the seller has moved out.
b. Seller may not be open to this. It would require both parties agreeing to having
the money released.
What are buyer’s options?
Portion of the earnest money deposit.
Time is off the essence clause creates a hard date at which breach occurs.
Lohmeyer v. Bower (1951)
SOC: Marketable Title: House was purchased that was not in compliance with local code, is
sale valid?
Facts:
Issue: Whether the encumbrance made the property unmerchantable // do Zoning ordinances
render a property’s title unmerchantable
Holding: yes.
Reasoning: Pleating v. Beard (1950) Kansas court held that marketable title in real estate was
one that was free from reasonable doubt, and little which carried with it the potential for
litigation was doubtful and therefore unmarketable.
Marketable Title
Suppose bower’s predecessor had mortgaged the property, and bower hadn’t paid off the
mortgage.
- After signing the sale contract, Lohmeyer discovered the mortgage and insisted that
bower pwy it off before closing. Bower refuses. What are lohmayer’s options?
- Is it within the seller’s power to deliver marketable title here?
- Yes, Bower can pay off the mortgage and make the house marketable
- Lohmeyer can bring an action for specific performance.
Suppose that lohmayer does a search and discovers that, although the bowers have been on the
property for 20 years with a deed from someone else who occupied the property, there is, in fact,
a deed from Bower’s predecessor to smith before the deed from the predecessor to Bower.
- Risk: it looks like the other party has a claim for adverse possession.
- It will take a while to bring a quiet title action
- Go to smith and try to get title from them.
- Walk away from the deal, since bower has not provided marketable title
- Bower would say he did not know title was not marketable.
- Bower has better title than Smith, because he has acquired it by adverse
possession.
- We then ask again: Is Bower providing marketable title (since he believed he had possession
and held it beyond a statutory period)
- Sterk responds under Lohmeyer: “What you are not buying is litigation.” Where there is
significant risk of litigation, Lohmeyer has right to walk away.
- Lohmeyer could not use specific performance, because bowers can’t provide a clear title in the
time before closing.
- Lohmeyer wants the property: He must weight the risk of Smith bringing a claim for
possession.
- Lohmeyer would ask Bower to provide “generally warranty deed” which would
indemnify him against this risk of Smith.
Johnson v. Davis (1985)
SOC:
Facts: Tenant was
Issue:
Holding:
Reasoning:
Dissent:
Thursday March 9, 2023
Th: we will discuss Remedies and Warranties of Title (Pages 608-619).
Class notes:
Lohmeyer v Bower Contd.
Suppose now that Bower had given his neighbor an easement to park cars in Bower’s backyard
during family picnics and social events.
- Lohmayer discovers the easement and insists that bower remove the easement
What advice would you give to Lohmeyer?
- Bower is agreeing to provide good merchantable title, subject to easements of property
- Advising Lohmeyer: does Lohmeyer have to go ahead with thte deal?
- Yes, because the agreement stipulates that the easements are part of the contract, so
Lohmeyer would be in breach.
- Bower would have a claim for damages if Lohmeyer breaches.
- We would not advise Lohmeyer to sign.
Suppose now that the contract did not include the exception for restrictions and easements of
record.
Would bower have breached if he had given the neighbor an easement?
What remedies would Lohmayer have
If Lohmayer would lose when Bower gave his neighbor an easement to park cars, why doesn’t
Lohmayer lose here?
- Even though the contract was subject to easements and violations of record, that doesn’t mean
that Lohmayer has to close on the deal if the existing building is in violation of restrictions of
record
- The court is distinguishing between restrictions of easements of records and violations
of easements of records.
- What is the violation here: Two story Building and closeness to neighboring lot.
- One is a subdivision restriction requiring all buildings be two stories
- the other is a zoning restriction stating the house being x feet back form the
street.
- Court says the actual violations of the restrictions means Lohmayer can walk away
Suppose contract did not have the exception, and the land had been vacant, who would have
prevailed?
- Lohmayer: can rescind, there is no longer an exception to the easement, and the
easement makes this unmarketable.
- If there had been a privately imposed deed restriction, Lohmeyere would be able to rescind
Suppose there is no restriction on the vacant lot, just a zoning ordinance.
- If lohmayer discovers that there are zoning restrictions, does that give lohmayer the
ability to rescind the contract?
- Every zoning ordinance is going to outline what someone can do with a lot
- the existence of a privately held ordinance is an hinderance to
marketability, but zoning ordinance is not because it effects everyone in some way and everyone
would be able to get out of a contract by citing zoning ordinances.
Suppose Dr. Lohmayer had closed on the house. After closing, he brings an action for damages
against the bowers, alleging that they had breached by failing to provide marketable title
- Lohmeyer says they contracted for marketable title and they did not deliver.
- Lohmayer seeks damages after closing of the deal –
- As a matter of fairness
- Lohmayer had an opportunity after singing and before closing to
discover these zoning restricitons
- Merger Doctrine: a buyer can’t bring an action for the sale of the contract after
the buyer has closed on the sale.
- The breach of contract claim is merged into the deed, the only claims
- Lohmayer shouldn’t be able to close after
Even if Lohmayer didn’t bring an action for damages, and brought an action to rescind, he would
run into the same problem of the merger doctrine.
- He can bring court claims (misrepresentation, etc, tort claims) not breach of contract
claims.
Suppose Lohmayer contracts to buy a house from Bowers
- House burns down before closing
- Lohmayer refuses to close, and seller brings an action for specific performance.
- Bowers is still the legal owner until … closing !
- but Bowers does not have the right to sell the house at this point –
- Lohmayer has an equitable claim to the house after signing: he is the equitable
owner.
- Common Law: equitable owner has authority
- But bowers likely has the insurance, and should retain Bowers has
Lohmayer has a claim on any insurance proceeds at that time
- Equitable conversion doctrine: the risk of loss shifts to Lohmayer at the time of
the sale contract, not at time of closing.
Whether the warranties in the deed would give rise to the claim
603-607:
Property Disclosure Statement: Posted on Canvas
- Purpose
- it does not replace the buyer’s obligation to insect
- it is not a warranty
- Property Condition Disclosure Act requires the seller of a residential real property to
cause this disclosure statement or a copy thereof to be delivered toa buyer or a buyer’s agent
propr to the signing by the buyer of a binding contract of sale.
Disclosure of toxic products known to be spilled
Disclosure Obligations
Gallagher v. Ruzzine NY Court Appeals (2017)
SOC:
Facts: 1999: Timothy Malchow and Lora Malchow purchased a home in Amherst.
2005 Malchows conducted a survey where Siracuse Engineers LLP found no evidence of current
or past vertical movement in the soil.
Malchows sold property to Ruzzine’s .
Malchows provided the Siracuse report and disclosure report, which both P and D signed.
Plaintiff’s purchased property from Ruzzines in 2010.
A few months later, house shifted and foundation became loose. Plaintiff’s suied Malchows and
Ruzzines and realtor companies for fraud.
Issue:
Holding: Malchows did not have knowledge of foundational issues and they did not have a
relationship with current plaintiff as prior sellers, and made no statements nor representations to
the plaintiffs.
Court found Malchows did not aid the Ruzzines in perpetrating fraud. No evidence of Malchows
knowing ruzzines intended to commit fraud nor that they helped them.
Court properly granted Ruzzines motion to dismiss:
Reasoning:
Previous repair work on a house is not evidence that a seller concealed a known defect of a
property.
Where the disclosure did not mention dampness in the basement, the home inspection report did.
So the defendants have no liability because the plaintiffs cannot say they justifiably relied on the
disclosure agreement.
Dissent:
Doctrine of Caveat Emptor – Buyer holds burden of properly examining the property before
purchase. “Buyer Beware”
Caveat Venditor: Seller beware
Hypo:
Buyer asks if house has termites, Seller says no, it is later found that the house does have
termites.
- Does buyer have a remedy?
- Seller made an affirmative
- Can buyer rescind? If seller says its termite free, that’s a lie.
- under johnson v. Davis, court is walking back caveat emptor
- Fruad is a tort, and the merger doctrine doesn’t apply to torts, and therefore can be
brought after closing
- Must prove seller knew
Monday March 13, 2023
M AM: finish with Property disclosures. deal with Warranties of title, and introduce mortgages.
Suppose a hosue seller had a termite infestation five years ago. Seller paid to have the termites
removed, and received ..
Remedies
Remedies for Breach of Sales Contract
1) Specific Performance
- Each piece of property is unique, so damages is not always an equitable or adequate remedy
for breach.
- Some courts are moving away from this view and awarding damages, in particular in
condominiums and commercial real estate property where units are not unique.
2) Damages
- Parties seek the difference between the contract price and the fair market value at the time of
breach…
- Damages, in some cases, can be calculated on the date the property is resold, where the buyer
has backed out. This is to make up for lost profits in a declining market.
- Where the seller is unable to convey marketable title as the agreement outlined,
half the states follow English rule: say if the seller acted in good faith and believed he had good
title then buyer is not entitled to expectation damages, they are only entitled to the deposit.
American Rule: relies on the fact that bookkeeping is betting in US than traditionally was in
England, therefore seller should be able to determine title and buyer should be able to
damages as a result.
3) Recission and retention of deposit
When B places a down payment and breaches, S is allowed to rescind the deal and keep the
down payment. It is justified because calculating actual damages is difficult and the general
understanding of a 10% down payment being sufficient as damages.
- Sellers typically elect to retain a deposit money and are held to no more than 10% of the
contract price
- however, if there is a liquidated damages clause, sellers may increase the amount and
negotiate further
- buyers have a parallel remedy: restitution of their deposit money. Restitution often
falls below the value of the property to the buyer (buyer’s expectation damages) therefore
restitution is rarely sought.
4) Liens
- Where seller breaches the contract, buyer may enforce a lien.
- Breach creates a debt to the buyer in amount of security deposit
- court may order the property sold to repay the deposit amount.
The Deed
Add deeds must:
1) Be in writing
2) Identify the grantor and the grantee
3) Describe the property to be conveyed
4) State the grantor’s intent to convey
5) Contain the grantor’s signature (name as well, not just signature)
#3 Description:
Can be in any of the following forms:
- Reference to natural or artificial monuments and, from the starting point, reference to
directions and distances (“metes and bounds”)
- Reference to a government survey, recorded plat, or some other record
- Reference to the street and number or the name of the property
Hierarchy of rules:
1) Natural monuments prevail over artificial ones
2)
3)
4)
5)
6)
which prevail over adjacent boundaries
which prevail over directions (northwest)
which prevail over distances (30 feet)
which prevail over area (5 acres)
which prevail over place names (Quinn farm)
Consideration
- State in the deed that there was consideration paid. It is not customary nor necessary to state
the exact amount… why
Seal
- most jurisdictions have done away with this
- the ones that still have it can have it in many forms, word “seal”, “L.S” locus sigilli” a ribbon, a
scratch.
Example Deed on Page 611
Class notes
Remedies for Breach of Contract
Buyer agrees to buy 500K and pays 50K
Seller defaults
What remedies are available to buyer?
- Sue for specific performance
- issue is it could take a year or more to get performance and that doesn’t help the
buyer immediately.
- Sue for damages
- initial retention of deposit
- can sue for more: what other damages has buyer incurred?
- If buyer could prove the market value of the house is 600K, and was only
going to pay 500K, buyer may get “benefit of buyer’s bargain” and be entitled to 100K
difference.
Deeds
Suppose Jones owns black acre. Jones conveys a two-foot strip of land along the back of
Blackacre to his neighbor, Smith.
Jones then sells Blackacre to Brown without informing Brown about the conveyance of the strip.
Does Brown have a claim against Jones if
1) Jones gave Brown a general Warranty deed?
2) A special warranty deed?
3) A quitclaim deed?
a. A quitclaim deed is cheaper, that is the only advantage
b. You are giving up a claim against the seller for encumbrances, but eliminates
any potential claims to the seller.
Suppose brown conveys blackacre to Green without informing Green about the conveyance of
the strip
Does Green have a claim against Brown if
1) Brown gave green a general warranty deed?
a. Green has a claim against brown
2) A special warranty deed
a. It wasn’t brown’s actions that cast a doubt on the title.
b. The action will be Jones trying to assert their claim
c. Special warranty deed just says “I the seller did not do anything to get
in the way of your title” but does not warrant against older claims to
title.
3) A quitclaim deed?
a.
Rockafellor v. Gray SC Iowa (1922)
SOC: Rockafeller owns a property subject to a mortgage held by gray
Gray foreclosese;sheriff’s deed issued to Connelly
Conelly conveys to Dixon (general warranty deed)
Dixon conveys to H&G (special warranty Deed)
Rockafeller successfully challenges foreclosure sale
H&G v. Connelly
Facts:
Issue:
Holding:
Reasoning:
Dissent:
Why do H&G seek to recover against conelly not Dixon?
- Dixon gave a special warranty deed, all Dixon was doing was warranting that he was
not inhibiting title
- The basis for suing Conelly
- Conelly gave Dixon a general warranty deed
- Dixon could have recovered from conelly
- When Dixon sold to H&G, he transferred all his rights to the property to H&G,
and therefore transferred the right to recover from Conelly to H&G
- Dixon can only recover the purchase price that he paid to Connelly
- Warranty only covers the purchase price
- H&G can only recover what Dixon paid to Conelly, not what they paid to Dixon
Mortgages (page 635)
Suppose you are a lender
- How much would you lend on a security of a house worth 500K (assuming the borrower
has a good credit and reasonable income, but no significant assets other than whatever down
payment the borrower will put into the house).
- If lendee can’t pay it back, there is no recourse to the lender.
- Lender is in a better position if they open a mortgage
Bank can foreclose on the house, in the event the lendee can’t get money, and recoup their
money from sale of the home.
- Bank may not give 500K loan on a 500K house
Risks to Lender:
- Foreclosure sales generally do not sell as much as the market value
- Market can also be moving down and there may be diminishing returns. (market
volatility)
- Cost of collecting
Assume a borrower defaults on a mortgage
- What should lender do?
- Renegotiate
Suppose a foreclosure sale is scheduled.
- There will either be a judicially supervised foreclosure sale, or a non judicially
supervised.
Afternoon March 13, 2023
M PM: we will continue with mortgages (Fremont and Murphy).
should the bank send representative to the foreclosure sale?
- To bid up the price.
Suppose no one shows up
Suppose now a bidder shows up at the sale. If you were a bidder, how much would you bid and
why?
- If property is worth 200K, and mortgage is worth 400K, Bank is better off taking the
200K is worth it
- If bid is more than 400K, bank should take it.
- IF bidder bids 420K, and bank mortgage is 400K, then borrower gets 20K remainder.
Bank’s interest is a security interest.
- Why would borrower not refinance the mortgage where the property is worth more than
the mortgage?
- because the borrower has bad credit.
Suppose there is a 400K bid, does borrower have any recourse against the bank where the bank
did not bid?
Whats the difference between this and the murphy’s?
- New Hampshire didn’t have notice requirements
- Bank in NH could not hold a foreclosure sale without notice
- Reserve price: Lowest price an auction will accept
Murphy: court is asking why the murphy’s shouldn’t get their money if the foreclosure sale
had(n’t ?) gotten a better price?
Suppose Murphy says bank has a fiduciary duty to the borrower to get best price
- bank should postposne the sale if they are not getting the highest possible offer.
- Its not good for borrowers if we make the process for lending money more expensive to
lenders and make the period
Commonwealth v. Fremont investment & loan (2008)
SOC:
Facts: Fremont was lending 100% of the value of the property. The usually should be 80%. They
were also doing much lower rates for first two years, and to unapproved borrowers.
There was an assumption that they could refinance in 2 years, and pay off their current
loan and get a new one.
If they could not get refinancing,
they also assumed they could always sell the property. There was an assumption that
house prices always go up, so they could always sell and pay off the mortgage.
Why would a bank like Fremont make these loans?
- Bank didn’t expect to hold these loans. If they had, this would not make sense because
they would never get above market rates.
- Banks planned to sell them (package them and sell them)
- Buyers of the mortgage backed security were only buying a small portion, and didn’t
have incentive to investigate too deeply
- Fremont assumed prices were always going to go up, that is why they were ok with
giving mortgages at 100% of value of homes.
Local bank: low income property may decline in value, but low likelihood that property across
the country (some in Long island, some in FL, some in AZ) were all going to go down at the
same time. It was better than buying a single mortgage because it was unlikely all the property
was going to go down at once.
- Often the bank was going to make money on the servicing the
-
Issue:
Holding:
Reasoning:
Dissent:
Murphy v. Fin. Dev. Corp. (1985)
SOC: Fair Market Value
Facts:
Issue:
Holding:
Reasoning:
Dissent:
Start tomorrow on the reporting act and luthi v. Evans
Tuesday March 24, 2023
Title Assurance
Terms:
o Chain of Title: the documents that are required to be reviewed for a title search, and the
period of time that that search extends to, in a given jurisdiction.
Purpose of recording Act:
1) Assures title/determines priority of rights to a parcel of land.
2) Allows prospective purchasers to obtain notice and information about the property,
including other claims, covenants, mortgages, marketability.
- Prospective purchasers are expected to check the index. And gain constructive notice
Equitable Titles: O contracts to sell to A. O conveys to B. B has priority of title in common law,
because the conveyance was legal title. Legal title trumps equitable title in common law.
Title Search:
Begin in Grantee-Grantor Index. Find the most recent grantee (the person selling land now).
Trace this back, the grantor of that person’s interst, who granted to them? Until you reach root of
title.
Then open grantor-Grantee index.
Begin at root of title. The original grantor, who did they grant to? Follow this to today.
- This is where you will find encumbrances, such as easements, mortgages, leases, etc.
Class
Reporting statute and title searches as a form of
Reporting statutes creates an incentive to report because subsequent purchasers are not
bound by the deed that she got.
Two index’s for each side to record in.
Grantor – Grantee Index (
Grantee – Grantor Index (Index of grantee who received from grantor)
Grantee (was granted) Grantor (person granted from)
Owens
Smith (1965)
Smith
Brown (1958)
Brown
Green (1950)
You would look for some unbroken chain of title.
You cannot tell in the Grantee index if smith conveyed twice.
You would have to look in the Grantor-Grantee Index.
Grantor
Owens
Smith
Brown
Brown
Green
Grantee
?
Owens
Smith
White (problem conveyance)
Brown
Double conveyance: either a intentionally deceptive conveyance or a genuine mistake
Luthi v. Evans (1978)
SOC: Mother Hubbard Clause // Grantor/Grantee Index
Facts: Grace Owens owned oil and gas leases. Owen assigned these to Tours, Inc.
The controversy is over what had previously been Owens’ interest in the kufahl lease.
Owens conveyed all interest in oil and gas leases within the county and conveyed to tours 7
leases. “Conveying to tours 7 leases, plus everything else in the county” and Burris then asks
about one particular lease and Owens forgets that property fell under his “everything else in the
county”
Burris first looked in the Grantee Grantor Index to confirm that Owens had good title.
Now Burris will see if Owens conveyed to anyone else
Burris will look in the Grantor Grantee Index to see if Owens or anyone else had made a
conveyance.
Burris didn’t find a previous conveyance. Page 685 Coffey County Kansas index: outlines only 7
The mother Hubbard clause says that all the property in Coffey country was previously
conveyed.
Reporting act – Intended to provide constructive notice
Actual notice – if burris actually sees the deed.
Constructive notice – Burris should have found the deed.
The deed that is listed in the index is found at a particular deed in a particular page of a particular
volume  Burris needed to go look up the deed in a separate record.

Issue:
Holding:
Reasoning: Title search, where you are foling all of your properties into one conveyance, isn’t
enough to put future purchasers on notice.
- There was a recorded deed. Why did burris win? The index didn’t adequately describe
the property. Burris was only under a burden to do a title search to the titles in the index.
Dissent:
Could Burris have found the deed if he had done a more extensive title search?
- Yes, he simply needed to go to the page specified in the index.
Why did Burris win?
- Court used legislative intent to say that all recorded instruments need to actually
describe the property. The recording index didn’t sufficiently describe the property.
- You would have to look at all the deeds of Owens’ conveyances, even the ones that
don’t match the property, to make sure Owens didn’t double convey.
- The court felt this would be overly burdensome on buyers.
What kind of Burden does this put on Tours/conveyors?
- What did Tours’ lawyer do wrong that could have avoided this dispute?
- Record in the Grantor Grantee Index
O to A
O to B with notice of the conveyance from O to A
A records
A v. B
Persons protected by the Recording System (pg 701)
Many states avoid a strict Race statute because problems arise where purchaser knows of a
prior interest an does nothing.
Notice Statue:
- Subsequent Bona Fide Purchaser prevails over prior claims as long as they closed
without notice of the claims. They do not have to be the first to record.
Florida Statute – Notice Statute
No Conveyance, transfer or mortgage of real property, or of any interest therein, nor any lease
for a term of 1 year or longer, shall be good and effectual in law or equity against creditors or
subsequent purchasers for valuable consideration and without notice, unless the same be
recorded according to the law…
- Protects, against unrecorded conveyances or mortgages, “creditors or subsequent purchasers
for a valuable consideration”
California Statute – Race-Notice Statute
Every conveyance of real property or an estate for years therein, other than a lease for a term
not exceeding one year, is void against any subsequent purchaser or mortgagee of the same
property, or any part thereof, in good faith and for a valuable consideration, whose conveyance
is first duly recorded, and as against any judgement affecting the title, unless the conveyance
shall have been duly recorded prior to the record of notice of action.
- Protects “any subsequent purchaser or mortgagee” and “any judgment affecting the title”
Purchaser: All parties who have paid consideration for the interest acquired, including a
mortgagee or lessee.
Recording statutes protect purchasers, not donees.
A recorded before B recorded
Tomorrow: how a notice statute is different than a race notice statute and Alan Case.
Wednesday March 15, 2023
Race notice Statute: First person to record the deed is the person who has priority to
ownership.
- reduces litigation over notice.
- It encourages B to record
When doing problems, ask yourself:
Ask yourself: who, between these two parties, would win at common law
O to A
O to B w/o notice
B records
A v. B
Who prevails?
B took without notice.
In common Law
- First in title. A wins.
In a race notice jurisdiction
O to A
O to B w/o notice
A records
B to C
A v. C
(^Zoned out 9:20 AM)
What incentive does B have to record?
If O makes a conveyance to C, B will want to protect against your transferor making another
conveyance.
Pg 700 P1
Jenny to Lisa (who Does not record)
Jenny Dies
Jisoo (Jenny’s Heir) to Rose w/o notice
Rose Records
Lisa v. Rose
At time of Jenny’s death, Lisa has better title than Jenny
Rose takes without notice
Rose is acting in good faith, she did not know that Jisoo didn’t have good title
Rose prevails against Lisa, but why?
Jisoo did not inheret property from Jenny, so how?
Because lisa didn’t record.
It would be bad policy to allow lisa, who did not record, to come in and say “jisoo’s
mother conveyed to me” because then any heir would have questionable title without
following rules of recording.
P2
Jon to Matt
Jon to Anthony w/o notice
Matt records
Matt to Lili with notice
Anthony Records
Lilli Records
Anthony v. Lilli
Notice Jurisdiction (once lili takes without notice, lili is going to take)
If Lili did a title search.
When Jon conveyed to Anthony without notice, Matt
You are protected if you
In a notice jurisdiction, Lili Wins against Anthony
In a race notice Jurisdiction
Matt recorded first, matt has good title.
Anthony never gets protection of the recording act, his stake was wiped out when matt
recorded.
Lilli Wins, because lili would win at common law without protection of recording act
Lilii also wins because Anthony does not have protection of the recording act
If Anthony was able to get protection of recording act, he would prevail.
Allen v. Allen (Rewatch, final 5 minutes of class)
SOC: A deed that does not name a grantee is a nullity, and wholly inoperative as a conveyance,
until the name of the grantee is legally inserted.
Facts: Ethel, is owner, makes a conveyance to herself and Harold as joint tenants.
Harold records (defective acknowledgment). Ethel to Ethel and Deborah as trustees.
Why isn’t the conveyance to the trustees invalid? Could Ethel and Deborah have found the deed?
Issue:
Holding:
Reasoning:
Dissent:
Thursday, March 16, 2023
Brief problem that sterk will post.
Oscar to Abner
Abner records (acknowledged over the phone)
Abner to claire
Claire records
Oscar to Barbara w/o notice (no title search)
Barbara records
Claire v. Barbara
Under Common Law: Who is first in time? (in absence in of a recording statute, first to receive
the conveyance) Clair would win.
With Rocording Act: Barbara needs the protection of the recording act.
BRIEF
- Oscar is offering to sell this property to Barbara
- You would need to look up whether Oscar has good title in the grantee index
(in order to figure out when Oscar received title as a grantee)
- You then look in the grantor-grantee index to make sure Oscar has not
conveyed to anyone else.
- you would see the deed from Oscar to Abner
- You would not be able to see that the notary acknowledged this over the phone
and therefore invalid
- Rule: A defectively acknowledged deed does not create constructive notice
- Barbara therefore has neither actual nor constructive notice
- What would you say to support that rule?: You can look to reasons or to
authority to support a rule.
-Support: In Alen v. Alen, there person did not… xyz (this is the authority to
support the rule) (Rewatch 9:25-9:30)
Brief for Claire:
- Barbara had notice for her purchase
- Rule: a purchaser who could have protected herself through an ordinary title search
should not be able to assert a defective acknowledgment (the defect shouldn’t matter if you
would have found the deed anyway)
- Reason: (Start with a reason not authority bc Alen v. Alen does not support your
position) The burden on purchasers to discover acknowledgers is incredibly high
- To find the defective deed, claire would have had to go through every previous
deed. It would require every purchaser to check every deed
- If you
- (Rewatch 9:30-9:40)
Board of Education v. Hughes 1912
SOC:
Facts:
Hoerger gives Hughes a deed (no names nor date in the deed) in 5/17/06
Hoerger to D & W 4/27/09 (quitclaim deed)
D & W to Board 11/19/09 (Warranty deed)
Board records 1/27/10
Hughes inserts name indeed
Hughes records 12/16/10
D & W 12/21/10
Issue: (1) Did the deed from Hoeger to Hughes ever become operative? If yes, is he a subsequent
purchaser whose deed was first duly recorded, within the language of the recording act?
Holding: Hughes claims there was an implied authority from Hoeger (Grantor) for Hughes
(Grantee) to place his name in the deed, thus making it operative. The court finds this valid.
The deed became operative when hughes inserted his name.
(2) He is a subsequent purchaser, and is protected by the recording of his deed before the prior
deed was recorded. Hughes is proper owner.
Reasoning: Common sense and equity.
Dissent:
When did hughes’ deed become effective? When Hughes recorded his name 12/16/10.
- Common Law: Board Wins
- Hughes therefore needs the protection of the recording act
In order for a subsequent purchaser in a race notice statute needs to prove he 1) took without
notice and 2) he recorded first.
- Hughes does his title search
- He looks up grantor – Grantee index
- He would not find the deed to the Board bc it wasn’t recorded yet.
- D&W TO BOARD is a “Wild Deed” – a deed that is not able to be found.
Monday: Keep talking about this case. Monday afternoon we will do take home problem.
Monday 3/20/23
Cont.
Board of ed needs protection of the recording Act.
Race notice jurisdiction: They would have to show they took without notice and were first to
record.
If you were trying to purchase from Hoerger 2/01/10, you would look in the Grantee Grantor
index
- Board put their record in 1/27/10
- But a purchaser of Hoerger is never going to find it
- Hoerger hasn’t recorded before hughes in this case
Grantor Grantee index – did Hoerger convey to anyone else?
- You won’t find D&W’s index.
If a notice Jurisdiction:
- Would it have mattered if the deed Hoerger to Hughes had been dated 1910, who
would be the subsequent purchaser?
- First conveyance to D&W to board
- Board Records
- Then Hughes records, hughes is subsequent purchaser.
- Hughes has no actual notice (if he does a title search in December, he won’t find it)
- the deed is indexed as D&W to board
- You are looking up Hoerger’s name in Grantee – Grantee index to see who gave
title to Hoerger
- Presumably he has good title
- the grantor (to) grantee index, and you are looking to make sure Hoerger has
not conveyed to anyone else.
- You won’t find any previous conveyances, so there will be no notice.
Notice Jurisdiction
O to A (A wins at common Law)
O to B w/o notice. (B would get protection of recording act, for taking w/o notice).
A to C w/o notice (Now C wins, in common law, bc A has better title)
C records (At this point, C’s reporting doesn’t matter bc C wins at common law)
B to D w/o notice (deed from A to C is a wild deed (Board v Hughes) D is a purchaser w/onotice)
D records (D’s deed is still wild, because B’s title wasn’t’ recorded)
A records (Once A records, C has recorded before D, and D can’t get protection of recording
act.)
B records
C v. D
Harper v. Paradise (1974)
SOC:
Facts:
Issue:
Holding: The 1928 deed mentioned the 1922 deed, which provided sufficient notice of the prior
deed. Even if you don’t have record notice of the 1922 deed imposes upon the purchaser to
inquire about the earlier deed.
Reasoning: The paradises didn’t look, it was there duty to inquire, therefore they lose.
Dissent:
Who should purchaser have inquired to?
Why doesn’t paradise win by adverse possession?
- the 1922 deed conveys to Maude for life, remainder to maudes’ children
- Maude died 1972
- Paradise can’t claim adverse possession bc the children didn’t have a claim until the life
tenant died.
Suppose:
1922: Susan conveys to maude for life, remainder to maude’s named children
1928: Susan conveys to maude, her heirs, and assigns
1933: Maude conveys to Ella Thornton
1955: Thronton’s successors to paradise.
Paradise recorded their deed, they would be a bonafide purchaser without notice.
Afternoon
Discussion of take home
Waldorff Insurance v. Eglin Nat’l Bank
SOC:
Facts:
April 1973: Chainsaw enters into a contract with Waldorff for purchase of the unit 111
October 1973: Choctaw executes mortgage to the bank (secured by all of the units Choctaw has
not sold, including unit 111)
October 1973: The Bank records its mortgage
March 1975: Waldorf records quitclaim deed to unit 111
- The bank seeks to foreclose on unit 111. From a recording act perspective, who should
prevail, Waldorf or the bank?
The bank needs the protection of the recording act
The bank is a subsequent incumbrancer
Choctaw says “we can insure you get an interest in 111”
Bank wants to know if they can count the value of 111 if they insure the mortgage.
If the apartment complex was empty, bank would need to valuate what its worth,
If Choctaw sells 111, bank can’t insure that as part of what they would acquire, because 111 does
not belong to Choctaw.
Issue:
Holding:
Reasoning:
Dissent:
Inquiry Notice
Your client wants to buy a 20 unit apartment building. There are tenants in all 20 units. Seller
shows your client 2-year leases for each of the apartments at rents acceptable to your client.
- Is your client protected against a tenant if the landlord has given one of the tenants one
of the tenants a ten-year lease extension at a below market rent?
- What would the tenant’s argument be if you tried to evict the tenant at the expiration of
the two year lease?
How do you protect your client?
- Your client knows there are 20 tenants in possession of the 20 units. The leases aren’t
recorded anywhere.
- Can’t ask the landlord, they aren’t obligated to tell you anything, same with tenants.
Inquiry notice increases costs of land, with burden on land purchaser. Obligation posed on
anyone interested in property.
Hypo:
Olive owns Blackacre, conveys BA to her daughter, Anna, who does not record.
Olive and anna continue to live on Blackacre
Olive now conveys to Bill for 100K
Anna refuses to leave, contenting that her title is better than bills
Who prevails?
Under recording act, Bill, who took without notice.
* (problem that would arise if you take the waldorf case too far)
Tuesday March 21, 2023
Title Insurance
Walker Rogge, Inc v. Chelsea Title & Guaranty Co. (1989)
SOC: Title Insurance Exclusion
Facts:
Kosa to Rogge (for 19 acres more or less, Price Walker Survey said about 18.3)
Chelsea hired to do the title search
Aiello to Kosa (property described as 12.5 acres, of which Chelsea had notice)
Rogge hired Duffy to do a title search (Duffy found the true acreage closer to 12.5)
Rogge sues Chelsea after learning the true acrege.
Chelsea Contract has specific terms for what is covered, Rogge alleges acre shortage is covered.
Lower court found the shortage made the deed unmarketable, therefore covered.
Issue: (2) whether the issuance of the title commitment and policy places a duty on a title
insurance company to search for and disclose to the insured any reasonably discoverable
information that would affect the insured/s decision to close the contract to purchase.
Holding: (2) Court found that the policy was a contractual obligation and does not warrant
Reasoning: The court determined the purpose of the insurance exception was to exclude
coverage when the insured fails to provide the insurer with a survey. An insurer cannot
determine the exact land dimensions from public records, which is what a title search does.
Dissent:
Suppose the property described in the survey did include 19 acres, but 7 of them are owned by
someone else.
- Yes Chelsea would be liable because that ownership is findable.
What would the source of the duty of Chelsea to alert the purchaser to the unmarketability in
this case?
- plaintiff: Walter Rogge was billed for title search, and Chelsea performed that title
search negligently. The notation of “title search” was just as it was meant within chelsea’s
company, and not a formal title search. Title search is based on policy, not law.
- Chelsea had actual knowledge in its records the plot was only 12 acres, but the court
doesn’t tell us what the nature of that duty would be.
- Court says that Chelsea would be obligated to do a thorough title search.
- (SC said go figure this out below) Lawyer of Chelsea would seek settlement of Rogge as
to avoid cost of litigation in lower courts.
How to resolve disputes between neighboring landowners
- Common Law (Nuisance)
- Law of Servitude, easements, covenants
- Public Law mechanisms (Zoning, .. )
Amphitheaters, Inc. v. Portland Meadows (1948)
Loss to Drive-In from lights = 40K
Cost of redirecting lights = 10K
1) If court determines the lights are a nuisance, then the amusement park should redirect the
lights
2) If lights are not a nuisance: theater offers to redirect the lights. Its better because its
cheaper than the loss.
If the lights are 100K..
Who should bear the cost of the conflict?
- First in Time? Which side was there first?
- Would the activity be harmful to ordinary users, or only sensitive users?
- Who was in the best position to anticipate and avoid the conflict ?
Remedies
Injunctive relief
Damages
No Nuissance
Law of Nuisancee: Land Use Controls
Intro to Substantive Law
Morgan V. High Pen Oil (1953)
SOC:
Facts:
Issue:
Holding:
Reasoning:
Dissent:
Remedies (an dmore on the substantive law)
Estancias Dallas Corp v. Schultz (1973) (pg 747)
SOC:
Facts: Estancias wants to limit Schultz to damages, because the construction corp has built a
large apartment complex and its not possible to move it nor
Issue:
Holding:
Reasoning:
Dissent:
Estancias can offer to buy the rights to be noisy (easement)
Or buy the land from Schultz
Off to help Schultz to relocate.
The person living near the bakery is a sensitive user, can the bakery be held liable for sensitive
users?
Harm to Shultz: $15K in market value
$15K in subjective value
Cost to move AC units: 150K
Schultz has an injunction, how much does Estancias offer?
- over 30K, less than 150K
- Once Shultz has over 30K he should accept. Maybe fair dealing is 60K
If the Schultzes were only damaged to the extent of 12L-15K, is it fair to give them a remedy
that permits them to extract much more?
Is injunctive relief unfair because if overcompensates?
Suppose money damages were the standard remedy in nuisance cases
- if you were in the position of Estancias and you were building an apartment building,
what would you do if noisy units were cheap and quiet units were expensive ?
- Making nuisance makers pay more for damages may be used as a warning against
future nuisance makers.
Boomer v. Atlantic Cement (1970)
SOC:
Facts: Neighbors are affected by the cement company’s operation.
Issue:
Holding: Court isn’t sure that airborne nuisances can be
Reasoning:
Dissent:
Suppose:
Value of continued operation: 4 M
Loss in value to neighbors: 20K
20 Neighbors: 400K
Suppose you represent the Atlantic Cement Company, and the court in Boomer had just granted
an injunction. Your client asks you how to proceed. What advice would you give?
- If you get 19 of the 20 neighbors together, the last one will have the most bargaining
power.
- if everyone knows this, no one will want to come to the table.
If the 19 agree to 1.9 milion, the last person can negotiate up to 2.1 million, because the last
person knows that is what the deal is worth, 4 million total.
As the cement company, if you make an offer to 1 party, you would only be buying 1/20, and
there is no guarantee of getting a deal with every single other person. You buy nothing by
negotiating with one person.
Because it is so hard to work out a deal, the court is less likely to grant injunctive relief.
How does the court measure permanent damages?
Suppose you move into the neighboring homes after permanent damages are paid.
- are you entitled to any remedy against the cement factory?
How do you argue money damages are the appropriate remedy?
Suppose Atlantic cement wants to expand. Wants to Bulldoze backyards, and pays for money
damages.
If boomer doesn’t allow you to do this, how can we distinguish this.
Thursday March 23, 2023
Spur case.
Spur Industries v. Del E. Webb Development Co.
SOC:
Facts: Sour has a feed lot for cattle, with large amount of cattle. The cattle produce odors.
Issue:
Holding:
Reasoning:
Dissent:
Why were Spur’s operations a nuisance?
- The developers and home buyers knew that there was a nuisance there.
- The neighbors value the property more than spur values having the feedlot there.
- The developer should bare the cost.
- Spur initially picked a place that was inoffensive and appropriate, and the
developer chose to move there.
Four Alternatives:
1) The court found the feedlot was a nuisance and enforced by injunction:
a. Feedlot would have shut down
b. It allows the development (more efficient use) gets to stay
c. But Spur bares the cost and loses his development
d. Leads to efficient result, not fair result
2) The court finds a nuisance and enforced by damages
a. The Boomer Remedy
b. The home owners would move away
c. Damages would likely be the cost of relocating
d. The reduced market value of the land will likely be greater than the cost Spur
bares.
3) Found no Nuisance
a. Del Webb would pay spur to move, and pay moving costs.
b. You only need to convince 1 person to move
c. You can try to get the neighbors to pay to move spur, a feeding
d. Freeride problem, all of the people who want to move, may wait if they knew
there their neighbors would pay for it.
e. Finding no nuisance would no lead to an efficient result, but perhaps fair result in
that Spur does not bare the cost of moving.
4) Reached the result the court actually reached
a. Declared a nuisance, but require Del Webb bare the burden of paying for the
move
Can Webb permit Spur to continue in Lieu of paying damages?
Spur could have gotten he property Zoned for agricultural use.
Hypo:
You have to use your neighbor’s driveway to get to your house.
You could make a contract with your neighbor to use the driveway to get to your house.
Neighbor could breach, and you would only get money damages, not the driveway.
If neighbor sold the property, the agreement would be between the parties, not the two new
parties.
Parcel out the driveway at a tenancy in common. The new neighbors may partition the driveway,
half a driveway doesn’t help you or you would have to buy the whole driveway.
You need a permanent right to the property.
Easement.
Right of servitude.
Monday March 27, 2023
Missed first 40 mins of class, rewatch
Private Land Use Controls
Easements
Willard v. First Church of Christ, Scientist, Pacifica (1972) (pg 772)
SOC: Owner of two plots (one Genevieve McGuigan allowed First Church of Christ to use her
lot during church services.
Facts:
Issue:
Holding:
Reasoning: The Willards had notice that the easement existed because it was recorded in the
deed.
Dissent:
What other mechanism could Mrs. McGuigan’s lawyer have used to assure that the church
could use lot 20?
- License – however, these are revokable
- Partition – Not useful, bc Willard could get benefit of this lot
- Defeasible fee – granting this property to willards as long as the church is able to use
the lot on Sundays.
- why easement over defeasible fee? The defeasible fee would allow the willards
to use the lot un Sunday with no issue.
- The banks may be more willing to lend to Willards if its an easement, which is
less encumbering than a fee.
- There is no risk that Willard could lose the property if there is an i
- A defeasible fee is revokable, meaning that if Willards refuse the church and
break that condition, the original owners can reclaim property.
- This cannot happen in an easement.
Did Peterson and then Willard, buy a right of any value if their ownership of lot 20 required
them to permit parking by church members?
- During construction on the Willard land may prevent church from getting parking (if
Willard created underground parking).
- If Willard has plans to put a commercial business with underground parking, on the
property, but during construction there would not be parking.
- The church does not have
Reservation – a provision in a deed creating some new servitude which did not exist before as
an independent interest. EG: adding a new easement into a deed before sale.
Forrest
SOC:
Facts:
Issue:
Holding:
Reasoning:
Dissent:
Afternoon
Mund v English
SOC:
Facts: Parties purchased plots of land adjacent to eachother. They both paid to have the well
installed in defendant’s property.
P’s built a house on their property on the reliance they would be allowed to use the well.
P: permanent access to well.
D’s stated they would only have revocable license to use the well.
Lower court said P’s failed to show that they had received permanent use.
Issue: If a license to access a well was based on an oral promise, and the licensee built a residence in
reliance on having access to the well, can the license be revoked?
Holding: No.
Reasoning: The license based on an oral promise becomes revocable when the license causes
valuable improvements to be made based on the promise. It does NOT become irrevocable based
on a promise.
You don’t require a license to be in writing.
Dissent:
How could the english’s avoid having the munds have a permanent right.
Oral promise
Suppose the Munds head never helped with the swell. The Munds build their home, and
dig their own well. The well is defectively built, and the Englishes say feel free to use our well.”
Would the Englishes later be able to revoke permission?
Would the situation be different if the Englishes granted permission before the Munds built
their home?
- If there was another creak or water source, the munds would have built the house
anyway – therefore they didn’t rely.
- If they were out west where water was scarce, maybe that defense doesn’t
hold … as much water
Suppose the englishes had sold their house to a purchaser. Would the purchaser be bound by
an easement in favor of the munds?
- The license would be irrevocable and that turns it into an easement.
Why not, instead, require the munds to obtain an easement in writing if they want a permanent
right to use the well?
- Henry v. Dolton – oral agreements are often misunderstood.
Easement to Pertinence
Easement to engross
Common owner
Suppose a common owner of lots 1 and 2 sells lot 2 to a purchaser. Does the owner of lot 2
acquire an easement across lot 1.
Lot 3 owner would not have purchased the lot if it was blocked by lot 2. Therefore we imply an
easement in lot 3 owner’s favor over lot 2 owner.
Easement by necessity.
Suppose now: common owner of 1 & 2. Common owner sells lot 1.
Reading note:
Scope and terms of easement by estoppel:
Suppose there was a drought and both parties wanted to use the well. The expectations that
create the servitude will also define its scope and terms. The relevant expectations are those
that reasonable people in the position of the landowner and the person who relied on the grant
of permission or representation would have had under the circumstances.” (pg 781).
Duration of Easment by estoppel.
Third restatement: “the irrevocable license is treated the same as any other easement”
.. unless the parties intended or reasonably expected that it would remain irrevocable only so
long as reasonably necessary to recover expenditures.
When the facts justify the application of estoppel, the court has the option of either
- an injunction
- damages
- or nothing.
Tuesday March 28, 2023
Missed class, rewatch
Vand Sandt v. Royster (1938) (pp. 781-789)
SOC: Easement by implied reservation
Facts: Lot 19 (Van Sandt), 20 Royster), and Lot 4 (Gray) are adjacent.
1904: Baily conveyed to Jones, who connected the house to the sewer, a general warranty deed.
Baily to Murphy, who connected to sewer, a general warranty deed.
Baily constructed lateral sewer which also connected to lot 4.
Later
By means of Mesne conveyances the title passed from murphy to D (Royster)
1920 Jones conveyed 156 feet of lot 19 to Reynolds. 1924, Reynolds conveyed to P.
1936 P found his basement full of sewage. Discovered a drain in the direction of Royster and
Gray. Ds refused to stop draining their sewage, lawsuit followed.
Issue:
Holding:
Reasoning: Quasi Easement: Where an owner makes use of one part of his land for the benefit
of another part. (cannot have an easement in your own land, definition)
Six Requirements of Easement by Prior Use:
- Common grantor
- Reasonable necessity
- Continuous prior use
- Parties must intend at the time of severance to continue to use
- Prior use must exist at the time of severance
- The use must be apparent (detected or inferred from a reasonable inspection of the
premises).
Dissent:
Would the case for implying an easement have been stronger or weaker if Mrs. Bailey had sold
of lots 4 and 20 and retained 19?
- Stronger, because she would have known 20 and 4 would need an easement to access
the sewer when she sold it.
- Court in Van Sandt – we aren’t barring the grantor from every denying an implied
easement but knowledge will be a factor.
Suppose, after this case, if you were advising the owner of lot 19, what could you do?
- Easement: “I now have a right to use the property that I would at common law”
Why didn’t Van Sandts lawyer seek an injunction against use of the sewer line easement in a
way that causes sewage to back up into van Sandt’s basement ?
-
If one owner owns all 3 and then sells off.
What sort of easement does lot 2 and 3 have to cross lot 1 to get to the road??
- not an easement of implication because there was no prior use.
- In order for their to be an easement by implication there must be an apparent use at time
of sale.
- Quasi Easement
- Assuming in this fact pattern that the deed to lot one doesn’t say anything about an
easement.
- Rewatch this parcel
Easement by strict necessity – landlocked parcel
Easement by implication from prior use --
Othen v. Roser (pp. 789-804)
SOC: Easement by Prescription
Facts: The road along Rosier’s 100 acres has been fenced since 1906, and othen has used the
roadway since that time.
Issue:
Holding:
Reasoning:
Dissent:
Why hasn’t Othen acquired an easement by prescription?
Easement by prescription – Adversely acquired easement (different than adverse possessions
where you would be making a claim to the full title to the land, rather than a claim for easement
where you would share the land).
Othen’s predecessors had crossed Rosier’s parcel for 10 years before the fence was built. Why
hadn’t Othen’s predecessor acquired an easement by prescription before 1906?
- A prescriptive easement claim is a claim over a particular pathway or part of land. The
trespasser didn’t use the same pathway each time.
- Hill owned the parcel before Othen, and you cannot have an easement over your own
land.
-
Thursday March 30, 2023
Note 3, pg 820
Landowner grants neighbor an easement appurtenant allowing neighbor to cross landowner’s
parcel to reach a main road.
…
Ending Easements.
Brown v. Voss (1986) (pg 812)
SOC:
Rule: An easement appurtenant to an estate may not be extended to other adjoining estates.
Facts: Servant owner  couner to Dominant owner.
The servient owner brought the action to …
Issue:
Holding:
Reasoning:
Dissent:
Landowner grants his neighbor an easement of way for 10K. The Neighbor then purchases a 10
acre parcel nearby, and uses the easement to permit customers to reach the shopping center.
The servient owner brings an action to enjoin further use of the easement.
Shopping
Center
(10 Acres)
Dominant Estate
(10 acres)
Servient
Estate
Suppose brown v. voss had come up in November 1977, upon servient owner’s action for an
injunction preventing dominant owner from using the easement for the benefit of Parcel C.
- How would the case have come out?
- The case would have been stronger.
- If dominant owner had lost, how would you have advised dominant owner to proceed?
- negotiate a new easement that
How does this distinguish from Van Sandt
- Van Sandt: court assumes the owner of parcel 4 has a right to the land use
Servient owner v dominant owner
- Servient owner would get to set where the easement was so long as it succeeded
in the function of the easement.
-
A builds a fence; 5 years later, A’s successor wants to tear down fence and use the driveway. B
objects.
- A is abandoning the driveway. By building the fence, you made it impossible to
use the driveway. A didn’t simply stop using the driveway, there is evidence to show that it was
abandoned. (Brandt)
Suppose
A builds fence, 5 years later, B wants to tear down fence and use driveway. A’s
successor objects.
- B has not taken any affirmative action to abandon.
- Easement by express grant would require express release.
- Other than express release, what works?
Pick up the Brandt Case on Monday.
Monday April 3, 2023
3. A builds fence; 15 years later, B wants …
4. A builds elaborate brick wall oon driveway; 2 years later, b wants to tear down wall and
use driveway. A Objects
a. A can claim Estoppel  B watched A build the wall and said nothing. Once B had
an opportunity to stop A, before A made an investment in the wall, and B failed
to do anything, B is estopped from suing now.
Marvin M. Brandt Revocable Trust v. US (2014) ) (pg 823)
SOC:
Rule:
Facts: Gov argues that Railroad had Defeasible Fee (Determinable) (FSD)
If an easement is abandoned,
Brandt: If the easement is abandoned, then Brandt has a property without an easement.
If Gov holds a possibility of reverter, the gov owns a fee simple absolute.
Issue: Did the government hold a reversion in the land once the railroad abandoned.
Holding:
Reasoning: Stare Decisis
We have an easement, Brandt can have
Dissent:
Covenants
Covenants enforceable at law vs. Covenants enforceable in equity.
Hypo:
I want to make sure whomever buys the land I am selling cannot build in such a way that
obstructs the lakefront view.
Up to this point, we have used easements to do something on a neighbor’s land. It gives a right
to use neighbor’s land in a certain way.
Negative easements: Prevents neighbor from doing a particular use.
We want a promise from your purchaser, that also binds his successors. The covenant is
embedded in the land.
Tulk v. Moxahay (1848)
SOC: Covenants running with the land: Covenants enforceable in equity.
Rule:
Facts: Tulk conveys part of the property to Elms. There is no privity of estate between tulk and
moxhany, because moxhany got his interest in the property from Elms.
Court would be inclined to say that if Moxhany knew about the condition on the property he may
not have purchased.
Issue:
Holding:
Reasoning: If the covenant would only be enforceable between those in privity, then Elms could
just promise to not do anything to the land and then sell the land at a higher price to someone
who would not be bound by that promise.
Court’s injunction was different than the original covenant:
Dissent:
Chancery court: a court of equity, not law. Chancery court seeks equitable outcome, where the
law is not on Tulk’s side.
Equitable servitude: No difference between real covenants and equitable servitude. The term
appears from this case but for our purposes they are the same.
Privity law does not make sense anymore. American courts recognized there are reasons to
enforce covenants outside of landlord tenant relationships. They relaxed the privity
relationship. Some court still insist in some form of privity, such as selling relationship from Tulk
to Elms to Moxhany. But neighbor relationship would not meet privity in order to enforce.
A court of equity would uphold a contract, but only a court of law may uphold damages. ?
Neponsit Property Owners’ Association, Inc. V. Emigrant Industrial Savings Bank (1938) (pg
848)
SOC: Affirmative Covenant. Homeowner association liens.
Rule:
Facts: Plaintiff, Emigrant, is an assignee of Neponsit, Defendant. Emigrant brought this action to
foreclose a lien upon Neponsit’s land.
Issue:
Holding:
Reasoning: Court finds that the covenant is affirmative, but enforces the covenant anyway. The
implications of not enforcing would mean no one would have to pay.
There is a potential to create a free-rider problem.
Dissent:
Why would NY court enforce the covenant in light of existing NY law?
- Affirmative covenant to pay money to maintain property benefits. The
purpose here touches the land.
Hypo:
Suppose the Neponsit realty co had extracted the same covenant from buyers and had
provided that the realty co could assign the covenant to a person or entity of the realty co’s
choosing.
- The realty co then assigns the covenant to smith, and smith tries to enforce
- What defense might the neighbors raise?
How much was at stake in the Neponsit case?
Why would the bank litigate this case to the NY court of appeals ?
- pettiness
- clarifying the rule.
- 1938, lots of foreclosure properties. Bank is concerned that whatever
rule applies will apply to their other properties.
- They want to force the homeowners to pay the four dollars, and were hoping
they would lose this case, so that they would protect the value of the home by forcing the
neighborhood to pay their fees.
Hypo:
A sells neighboring parcel to B. Deed includes a covenant by B, “For all her heirs, and assigns” to
sing at A’s annual Christmas party”
Can A enforce the covenant against B?
- Suppose B sells to C. Can A enforce against C?
- Suppose We didn’t permit A to enforce against C.
- what hardship does A suffer? Does A have any other means to obtain a singer
at the xmas party?
- Could get A to hire someone else. There is no reason to extract this
promise from B. There is not obstacle to A’s objective.
Suppose we permit A to enforce against C, would that generate any difficulties?
- Its not free to hire lawyers to try to get out of the covenant, which C and
successors would try to do.
- When its just as easy for A to get someone else to sing.
A sells neighboring parcel to B. Deed includes covenant by B “for all her heir and assigns” not to
use the property for any purpose other than a single family home.
- B sells to C. Can A enforce the covenant against C.
- How is this difference than the xmas party?
- Does C have the same defense? C was going to say that the covenant didn’t
touch and concern the land. Here, it certainly touches the land.
- If A can’t enforce covenant against C, can A go out on the market and find
someone to perform that benefit?
Restrictive Covenants: When it is restrictive, it meets touch and concern requirement.
Affirmative Covenants:
Covenant enforcement.
1
3
2
4
Suppose a developer sells off these 4 parcels, each with a restriction limiting use to single family
home.
- In order to remove the covenant, you need to find everyone with an interest
in the covenant and get them to agree.
Can the owner of lot 4 enforce against the owner of lot 3?
- yes. Why? Because developer still owns lot 4 when he imposed the restriction
on lot 3, and he is imposing the restriction for the benefit of lot 3 land.
- Common developer imposes the covenant on lot 3. At the time he sold
lot 3, he still owns lot 4. He imposed the covenant for to the benefit of lot 4.
- Developer didn’t’ still own lot 2 when he imposed covenant. So lot 2
can’t enforce.
- Can the owner of lot 2 make the same argument?
- The restriction was not for the benefit of lot 2’s owner’s land.
Suppose now that the developer sells off lot 1, deed to lot 1 restricts to single family homes and
restricts retained land (the other lots) to single family homes. The purchaser of lot 1 records.
Developer then sells the rest of the parcels without restrictions. Can the owner
of lot 1 enforce against the other owners?
- You are doing title search when buying lot 3, you look up developer in grantee grantor
index to make sure developer has good title, then you look in grantor grantee indix to see if
there are any encumbrances. You are just looking for the land you are purchasing.
- You won’t see any restrictions recorded against the lot you are buying.
- The restriction is on all of the retained land, but the pu
- Luthi V. Evans – the deed is findable, but the purchaser would only be under a burden to
search the deeds of the property he is purchasing.
- This case distinguishes against Luthi V. Evans
- In this case a single developer is developing all of these lots, that is not
the case in luthi v. evans. Because it is a common seller, the purchaser may be on notice, even
though the other lots are outside the chain of title.
- How would a developer know of a common scheme?
- Developer may include a subdivision map, to alert them to a scheme.
Other times when you look at the land you can tell. But what obligation is there for a purchaser
to go looking at other deeds, when there is nothing in your purchasing deed to alert you to an
issue?
Now suppose when developer sold off the lots, developer never imposed a restriction on lot 3.
Can any of the landowners enforce the restriction against the purchaser of lot 3?
Creation of Covenants
Sanborn v. Mclean
SOC:
Rule: Where the owner of two or more related lots conveys one with restrictions for
the benefit of the retained lot(s), the restrictions are deemed to apply also to the
retained lot(s).
Facts:
Did any restriction appear in the deed to the gas station lot?
- the gas station owner would not be able to find anywhere in the deed, there is no
piece of paper that records the restriction to the parcel.
When, then, did this restriction arise?
- When the property was conveyed from the developer to the purchaser of the first lot.
How were the other purchasers supposed to know that their land is now restricted?
- The restriction arises immediately upon sale, but is only operable upon a purchaser
having actual or constructive notice
- Purchaser in every incidence observed that the
- if you see people all building single family homes, you have to check for a common
developer, and then you have to check all the lots to see if there is a negative reciprocal
easement.
- Not every jurisdiction adopts this rule, mostly Michigan
Issue:
Holding:
Reasoning: When the developer first conveys a restriction, the restriction may rule the other lots.
“If I own two lots and I sell a lot subject to a restriction, a reciprocal restrict applies to my
retained lot”
Dissent:
How far does Sanborn extend?
If I want to impose a height restriction on B, to preserve lakefront views, and I sell B, Sanborn
says I have to impose that on A, my other retained land. “If I own two lots and I sell a lot subject
to a restriction, a reciprocal restrict applies to my retained lot”
- Sanborn only makes sense where there are ..
¼ acre parcel with single family residence restriction, to 50 acre parcels
-…
Remedies
What remedy did the plaintiff in Sanborn seek in Sanborn v. Mclean?
- Injunction on building the gas station
- P wanted the injunction, because it would preserve the neighborhood and the land.
Money damages wouldn’t achieve the same goal.
- Building a gas station would be worth 200K. It would reduce P’s property value by 20K.
- If money damages, Defendant would be fine to continue to build. It would not
deter them against building.
- If court awards an injunction, defendants may try to buy the sanborns out of
the injunction. Sanborns are likely to get more than 20k, because they have stronger bargaining
position. Defendants are then likely to get consent beforehand, and buy them out beforehand.
- Injunctive relief provides an incentive for developers to buy their way out
ahead of time, instead of breaking a covenant or impose a nuisance.
- Standard therefore is injunctive relief.
Discriminatory Covenants
Shelley v. Kraemer (1948) (Pg 864)
SOC: Court’s ability to enforce private agreements (restrictive covenants) which use race to
exclude persons from ownership.
Rule:
Facts: in 1911 30 out of 39 community members signed a restrictive covenant preventing
property along Labadie Avenue from being sold to a person other than of Caucasian dissent.
Shelly’s (black family) came into the ownership of the property through warranty deed.
Kreamers are housing association: seeking court to revest the title back to group who sold the
title to shelly.
Issue: Does the status of covenants as private agreements render them outside the protection of
the fourteenth amendment?
Holding: No, because action by the state’s lower courts has occurred to enforce the agreement,
and that is in contrast with the 14th amendment.
Reasoning: Courts found that the sale was legal, and the covenant would not have been effective
had the courts not intervened and supported the agreement. BUT the covenant was so offensive
that SC sought.
Dissent:
Notes: California Assembly Bill 1466 (2021) seeks to eliminate racially restrictive covenants.
Fair Housing Act (1968) under Title – VIII
o Prohibits the printing or publishing of any statement indicating a racial, religious, or
ethnic preference with respect to the buyer of a dwelling.
Covenants against single family homes
o Some courts find that language was meant to regulate architecture rather than use.
o Therefore group homes are allowed.
o Others find that single family simply refers to groups who function as a family.
Termination of Covenants
o Merger
o Formal Release: Written and Recorded
o Acquiescence: P fails to enforce the servitude against other breaches and then seeks to
enforce the servitude against the defendant.
o Abandonment: makes servitude unenforceable as to the entire parcel rather than only
as to the plaintiff immediately involved.
o Doctrine of Unclean Hands: court will refuse to enjoin a violation of a servitude that the
plaintiff previously violated.
o Equitable Doctrine of Laches: where a Plaintiff caused an unreasonable delay to enforce
the servitude against the defendant causing prejudice to the defendant (only bars
enforcement of the servitude in the instance, does not eliminate servitude).
o Estoppel: if D has relied on P’s conduct making it inequitable to allow the plaintiff to
enforce the servitude.
o Government’s eminent domain power
o Prescription
o Changed Conditions outside the restricted area.
Class
Suppose you had represented the Shelleys in Missouri State court.
What arguments would have been available to you other than equal protection argument?
o Covenant doesn’t touch or concern the land.
o Was there privity? There is no horizontal privity to bound the Shelleys
o English: there must be a landlord tenant relationship
o American: There must be a grantor/grantee relationship between parties
(neponsitt)
 In Shelley v Kraemer: the covenant was created between neighbors who
do not share a right to eachothers land.
Argument for the neighbors?
o Perhaps it concerns and touch the land where the land is intended to be owned by
racists…
Suppose Shelley had Lost (remedy)
o Seller sold Shelley’s a general warranty deed. Shelley’s could have gotten their money
back, as a breach of warranty.
After Shelly, would a black purchaser have been entitled to rescind upon discovering a racially
restrictive covenant?
o No, because the case shows that the covenant is not enforceable.
Are there steps an owner could take to remove the racially restrictive covenant?
o Notes
o Open debate between judge bogs (this is part of our history, we should leave them in
the deed and say they aren’t enforceable) and judge clay (we should have a strong
stance to say this isn’t
River Heights Associates L.P. v. Batten (2004) (pg 873)
SOC:
Rule:
Facts: Plaintiffs, Wood, argue that the covenant is not enforceable and does not apply to their
property. The Covenant states the land is to be used for residential purposes only.
Wood argues that no residential home has been built in the area in 30 years, and what was once a
2 lane road is now a 4 lane highways with businesses along both sides.
Declaratory judgement: Would prevent this question from arising again. The plaintiff’s want a
declaratory judgement to say that the covenant is enforceable, even though the woods haven’t
sought commercial use. There is nothing therefore to enjoin.
Injunction:
The lot of land is across from car dealerships – the cost of building the home may actually be
more costly than what someone would pay for it, so is is an unfair estoppel.
Defense woods raise: Decline of cost of land was not something the writers of the covenant
considered when applying it.
Issue:
Holding:
Reasoning: Test of whether a change of conditions merits nullification comes from Deitrick v.
Leadbetter (1940): “changes must be so radical as practically to destroy the essential objects and
purposes of the agreement.”
Dissent:
Notes:
Why doesn’t the court remove the restriction based on changed conditions?
In light of the court’s decision, what would the owners of lots 2C and 2D have to do in order to
develop their property for commercial purposes?
- Would need to collect permission from anyone who purchased from the developer who
created the covenant.
- Its hard to contain those consents, because every person can hold out and say no.
- Safety Doctrine
Suppose you represent a developer seeking to develop a residential community like carrsbrook?
- How would you draft covenants to anticipate the problem of changed condition?
- Draft covenant to anticipate the future vote
- Covenant will last until a certain period of time, may be extended unless homeowners
agree to have it removed.
- Developer is not going to be involved when the covenant is challenged.
If developer had used a device that permitted removal by …
April 17, 2023 Class PM
RPAPL 1951(1)
How would river heights be decided with this statute? The same, there are still X factors.
1951(2)
When relief against such a restriction is sought,… if the court shall find that restriction is of no
actual and substantial benefit to the persons seeking its enforcement,… it may adjudge that the
restriction is not enforceable by injunction… and that it shall be completely extinguished upon
payment, to the person or persons who would otherwise be entitled to enforce it in the event of a
breach at the time of the action, of such damages, if any, as such person or persons will sustain
from the extinguishment of the restriction.
Woods: would you rather be enjoined or pay damages?
- enjoinment means you still can’t use the land
- Damages means that either you don’t want to pay the damages and you let the case go
or the commercial use of the property is valued higher than the damages.
- Would a court decide that the neighbors are limited to money payment of damages?
- court would find this of actual and substantial benefit?
No benefit to any adjacent landowner – these owners seek to enforce, the courts would say there
is no damages, because the covenant had no benefit, and removing it would therefore give
nothing.
- What the statute is trying to do is recognize that there may be an issue getting total
consent of all neighboring parties, and offer an alternative standard for removing damages.
Taylor v,. Northam (2021) (pg 881)
SOC:
Rule: A restrictive covenant that is contrary to public policy and compels government speech is
unenforceable.
Facts: 1887 Allen descendants conveyed to Lee Monument Assn. (LMA) “As a site for the
Monument to General Robert E. Lee”
“Covenant to carry out the said purpose, and to hold the property only for the said use”
1890 deed LMA conveyed to Commonwealth to VA. “Gauranteed that she will hold said statue
and Pedestral and circle of ground perpetually sacred to the Monumental purpose…”
Land conveyed to government included a statue of Robert E Lee, with a. covenant that the
stature be preserved. 2020 Governor Northam (D) ordered it removed.
Issue: Is a negative covenant that is contrary to public policy and compel’ government speech
enforceable?
Holding: No.
Reasoning: SC has held that monuments on public property are a form of government speech. A
restrictive covenant must be unenforceable if a changed circumstance has occurred or if it
contradicts public policy.
Court found that commonwealth’s public policy was in favor of removing the monument.
Dissent:
Notes:
Why is this a covenant and not a defeasible fee?
“Covenant to carry out the said purpose, and to hold the property only for the said use”
Covenant to erect a statute, attempting to enforce?
1887 affirmative covenant to build the statute and maintain it.
o Issue with trying to enforce affirmative covenants (Neponsit)
o Courts say in Neponsit that affirmative covenants don’t often concern or touch he
land ?
o LMA is the original beneficiary of the covenant. LMA did not own any land in the
vicinity. They owned the burdened land.
What grounds does the court rely on to deny relief?
o Compelled government speech, and we don’t
Suppose the allen heirs had conveyed the property to the U of Richmon, subject to the same
restriction as in the instant case. The university decides in 2020 that the statue should be
removed, and the Allen heirs bring suit to enforce.
- Do the Allen heirs win? Would enforcing the covenant inhibit “government speech?”
What ground other than changed conditions does the court invoke for holding that the covenant
is nto enforceable?
o The changed conditions are public policy in this case.
Is the court holding that the covenant was never enforceable? What was public policy in 1890?
If the covenant was enforceable in 1890, how did the beneficiaries lose their property right ?
Common Interest Communities
Restatement 3: Distictive feature of a common interest community “is the obligation that binds
the owners of individual lots or units to contribute to the support of common property, or other
facilities or to support the activities of an association, whether or not the owner uses the common
property or facilities, or agrees to join the association.”
Creation of Condominiums
1) Map of lots in the development and of the floor plans
2) Declaration of covenants, conditions, and restrictions (CC&Rs)
a. Creates Association, Requires Membership
3) Draft Condominium Bylaws
4) Transfer Deeds to Individual Units
-Owners each own an individual unit in the building in fee simple
- Common areas/ground under building are owned as tenants in common with other
building occupants.
- Condo owners do not pay rent, they pay maintenance fees.
- Note: its easier to foreclose and to resell a condo bc a coop assn can deny a sale to a particular
buyer. How is a coop different?
- Owners own shares in the corporation that owns the building. You take a lease, based
on your right from the proprietary lease, is tied to your ownership in the coop org.
- If one cooperator does not make the payments, the other
- in a coop, the coop as a whole will borrow money to finance the building. The monthly
maintenance goes to the mortgage payments.
- You own a proprietary lease to your apartment.
- You pass on the shares of the assn.
- Cooperatives offer exclusivity, they can determine who they live with.
- NY law says no reason need be given to turn away a coop applicant
- Another reason is that it is hard to get enough coop board members to agree to change to a
condo model. (2/3 majority share vote in NY)
- If applicant can prove racial or ethnic segregation then the board would have to admit
them or pay damages.
Nahrstedt v. Lakeside village condominium ass’n, Inc. (1994)
SOC:
Rule: California Law provides that common interest development use restrictions are
enforceable unless unreasonable.
Facts: A homeowner in a 530-unit condo complex sued to prevent homeowners association from
enforcing a restriction on animals in the complex. Natore Nahrstedt (P) sued to keep her 3 cats in
the condo.
Plaintiff’s argument was that the covenant was unreasonable because cats do not harm any other
neighbors because they are indoor.
It was just
Issue:
Holding:
Reasoning:
Dissent:
Condos without pet restrictions sell for 11.6% more than ones with.
Restatement 3: A servitude is valid unless it is illegal, unconstitutional, or violates public policy.
- A restraint on alienation may be against public policy.
Ms. Nahrstedt’s lawyer does a title search when she buys a condo. Developer must record map of
the lot and CC&Rs – So Lawyer would have found the Covenant, she was on notice.
Why should a condo be able to prevent her from having pets?
o There is notice… but that’s not the main reason why
o It doesn’t violate public policy…
o
What remedies does the condo have against P if she ignores the restrictions?
o P is the fee owner of her condo, but the condo also has a valid
o Condo can fine her… but what happens if she doesn’t pay the fine?
o Injunction to enforce the restriction
o If she refuses this?
o She pays the courts more…
o Held in contempt, which would be jailed, but that’s a rare occurrence
Suppose the developer includes in the CC&Rs a requirement that all units be owner-occupied.
Rentals are prohibited.
- A unit owner rents her unit for 2 years while away in England on business.
o Longterm owners are more likely to take better care of the property.
o If the property deteriorates overtime, the owner will suffer, (the maintenance of
the common areas).
Suppose a developer has not imposed any restrictions on rentals, but the CC&Rs give the condo
board power to enact rules, and to amend the CC&Rs
o The board enacts a restriction on rental of units after an owner has purchased.
o Is the owner subject to the restriction?
 The court in Nesheredt does not draw a distinction between the recorded
restrictions (CC&Rs) and rules placed by the board
o Court says of CC&Rs that this is reasonable unless its arbitrary (presumption of
non-arbitrariness)
o Laws enacted after purchase (like if the board were to say no cats thereafter) P
would have a better case
 P would argue she relied on the idea of being able to bring her cat into the
building
 If P’s cat had bitten a resident and then board moved to ban pets…
 There would be reasonableness argument for banning pets
 Someone has goldfish… they would say that shouldn’t apply to me
Curto v. A Country Place Condominium (
SOC:
Rule:
Facts:
Issue:
Holding:
Reasoning:
Concurring:
Suppose the condo board had used the same calendar as in the actual case, but switched
genders each month, so that men had evening hours one month and women the following
month.
o Would the condo have violated the Fair Housing Act?
o Yes. Fair Housing Act says there must be equal access to services. Sec 3604(b)
Access to facilities. Here there is equal access, but not at any given point of time.
Certain races can swim at certain times.
o How, if members of every racial group had equal access?
o Is this different than sex?
o In the statute sex is treated the same as race.
 There are separated bathrooms based on sex.
 But, not bathrooms separated on race… is it because there is
Suppose the condo allows mixed swimming at all hours
o Would an orthodox Jewish residents have a claim under the fair housing act
o What they are saying is making swimming accessible to all sexes at all times, they
are violating their religion if they went to swim.
o Sometimes we may allow this for religious principles, where it is well established
that men and women cannot swim together.
Business judgement rule: Courts will side with board of directors where the rules were perceived
to have been made in good faith.
Zoning
April 19, 2023
W: Turn to zoning and discuss Euclid and the PA Northwestern case
Zoning prevents problems before they happen, where nuisance law may only attempt to make
one whole after a costly lawsuit.
Principles of Zoning:
1) Separation of uses
2) Protection of single-family home
3) Low rise development
4) Medium density population
Garden City: Medium density plan
Radiant City: high density plan
Standard state zoning statute (1922)
Euclid background: took ¾ value from plaintiff’s land. Euclid was seen as interfering with
greater Cleveland’s development. 13 districts with different purposes that made proving
argument of nuisance prevention a longshot.
Village of Euclid v. Ambler Realty Co (1926) SC (pg 921)
SOC:
Rule:
Facts: Village of Euclid is an Ohio municipal corporation.
Six Use Districts U1-U6 (U1: Single family homes, public parks, water towers and reservoirs,
suburban and interurban railway stations, farming, noncommercial greenhouse nurseries. U2:
Includes U1 plus two family dwellings. U3: U2 plus apartments houses, hotels, churches, public
libraries, museums, private clubs, community centers, hospitals, sanitariums, playgrounds, and
courthouses…. See pages for more specifics on each use. Three Heigh Districts H1 (two andon
half stories or 35 feet, H2, four stories or 50 feet, H3 80 feet, with exceptions for church spires
and water towers. Four classes of area districts A1(dwellings or apartment houses
accommodating more than one family must have 5K sqr feet interior or at least 4K corner lots.
A2 2500 feet for interior lots, 2K for corner lots. A3 1250 sqr feet and 1K sqr feet. A4, 900 sqr
feet and 700 sqr feet.
Plaintiff alleges that the land is worth 10K an acre for industrial use, and only 2.5K maximum
with the zoning ordinance.
Issue: Is the ordinance invalid in that it violates the constitutional protection “to the right of
property in the appellee by attempted regulations under the guise of the police power, which are
unreasonable and confiscatory?”
Holding:
Reasoning: Court finds that some zoning restrictions are reasonable in favor of public policy,
like limits on overcrowding, building height, as well as other nuisances like offensive industrial
buildings. Court feels that there are some industrial buildings that are inoffensive, and the zoning
law includes them unfairly.
However, the laws here are clearly for the purpose of preserving public interest and health. The
municipality of Eucelid is its own government capable of making its own rules, and it seeks to
prevent the expanding Cleveland form consuming its municipality and making it an industrial
zone like the outskirts of Cleveland.
Dissent:
Criticism is a zoning of class: single family for rich and apartments for middle class and poor.
Class April 19, 2023
Came 20 mins late, rewatch.
Rewatched, Class Notes from recording:
Claim: that the village is depriving ambler of property by reducing its value, and that is a
constitutional issue.
Suppose the village had expropriated by meets and bounds (taken the land outright), 3/4ths of
Ambler Realty’s land.
o Would the expropriation have been sustained?
o No, Ambler would have won. They would have been owed damages, because
constitutionally, under the 5th amendment, government cannot take one’s property.
o But how is Euclid’s actual situation different?
Euclid village deprived Ambler of 3/4ths its value.
What is it that made Ambler’s land worth 10K/acre?
o Land was near a railroad, made it valuable for industrial development.
If Ambler’s land is put the use that makes it worth 10K (industrial use) would that have an effect
on neighboring land?
o It would: it would negatively affect the land for residential purposes. The neighboring
land would not have been as valuable for residential land. The land not next to the
railroad was not as valuable as industrial land.
Why Zoning instead of leaving parties to law of nuisance.
o Nuisance is a reactive remedy, but zoning prevents problems.
o Neighbors wouldn’t’ be able to bring an action against ambler until ambler
finished building a factory.
o Zoning allows parties to plan, but parties could plan by private easemets or
covenants. The problem is you would have to get everyone to agree – it is hard
to get the buy in you need.
o Zoning tells people ahead of time what is allowed instead of waiting until conflict.
What restrictions did the Vilalge impose on land with the village?
o Usage, Area, and Height.
o
Why was Ambler Realty’s land – or most of it – u2 or U3 when the land was so close to the
railroad?
o Give a buffer to U2 homeowners, and making people in apartment buildings live up
against the industrial use areas.
o Euclidian Zoning is a class scheme
Why didn’t the village simply prohibit single family homes in U-6 districts?
o Constitutionally, they were giving themselves some leeway
o
Why was this a rational scheme that the village was allowed to make these restrictions?
o The court needs a reason to justify why the village should be able to limit
o Looking to nuisance law, we want to put together a scheme protected from
constitutional scrutiny
o That is why industrial use may be prohibited in some areas, but the single-family
home cannot be restricted in industrial areas, bc they do not create nuisance.
Suppose Euclid case has just been decided, and you are drafting ordinances for another town
o You would do what Euclid did, because it was proven constitutional
Suppose Ambler had already built a factory on its land before Euclid enacted its ordinance.
o Would the Village have required Ambler to tear down the factory?
o Fa
Facial challenge: use in general, we think zoning all together is unconstitutional
As applied challenge: zoning, as a parcel, in this context, is unconstitutional
Ambler’s basic challenge: zoning per se is unconstitutional, it was a facial challenge
o The court leaves an as applied challenge on the table, even where facial challenge was
ruled against.
Suppose the village gave the town a 10-year grace period and then required demolition of the
factory.
o Would this be better for the factory?
o Would a 90 day
PA Northwestern
SOC: Adult bookstore given a 90 day amortization period to resolve a zoning noncompliance
issue.
Rule:
Facts:
Issue:
Holding: The amortization period is unconstitutional.
Reasoning:
Concurrence: If it was more than 90 days it would have been OK. Many states, including new
York, have this view. A reasonable amortization period is one way a municipality can eliminate
non-conforming use.
o Amortization periods for a billboard may be reasonably shorter than a factory.
o For the bookstore, a store could move relatively easily since it is not very structural.
o
If you have a service station in a residential neighborhood, you know there is not going to be
any competition in that area, so nonconforming uses tend to be more valuable.