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Property Outline Acquisition by Discovery and Capture 9 For all parcels of land in the US chain of title begins with the US government 9 One cannot trans fer title to property without ownership of that property 9 mere possession of property does not give the possessor the right to convey title Key Terms and concepts Equitiesbackwardlooking focused on the behavior of the parties in the case can impact outcome typically more in uential at the trial court level Policy considerationsforwardlooking focused on how the proposed rule in this case would effect future behavior of people and entities in general Real Property land and its attachments vs Personal Property chattels Right to title ownership versus right to possession occupation Chain of titletraces ownership of property from person to person often the first step in legally analyzing a property problem quotConstructivequot possession means the law treats someone as if they have literal physical possession even if they do not see e g mortally wounding an animal below What39s at stake when it comes to real property Not just land Culture resources such as animals minerals water oil gas nonmonetary resources such as open space clean air view quiet Action in troverbrought to recover value of personal property taken and converted by another Applying black letter law to facts often does not result in a clear answer or a good answer which is why policy considerations underlying values driving the legal rules and equitable considerations come into play This played out in the whale case in which the court did not apply the black letter rule from the fox case Policy considerations are often in tension with each other or with the underlying values or with the equities and a good essay will esh all of these tensions all the way out and discuss each one of them one by one Values Driving Blackletter Law Person who quotgot toquot possessed occupied property first has a higher claim over others who came afterwards first come first served Person who put labor towards obtaining or improving property should have an ownership interest equivalent to his labor Raises the question of how you know when something39s been improved Property law tends to breathe easier when it is aligned with custom though such alignment is not mandatory fox case Blackletter LawRules In order to make a claim to ownership of property that is to be a link on the chain of title a person must first have a legally recognized right to make that claim Native American case A person who rst gains literal physical possession over a chased but unwounded wild animal is the person who legally has quotfirst possessionquot Merely pursuing an animal without more does not constitute possession or occupation it does not place you in the chain of title Mortally wounding an animal is considered quotconstructive possessionquot which is treated the same as literal possession for legal purposes as long as you follow up by doing all that can be done to physically take the animal Owners of a piece of land are considered to have constructive possession of all things on that land including wild things The law does not permit behavior intended only to harm another39s property or business duck decoy case although it does permit useful behavior that has that result eg bona de competition Policy Considerations forwardlooking Uniformity of law Predictabilityclarity of legal rule Power politics J usticereputation of judicial system Desire to encourage productive behavior in the future A desire to dis courage unhelpful or malicious behavior in the future A desire to protect industries and livelihoods so that communities continue to bene t from productive economic activity Conservation of judicial resources desire to avoid unnecessary or overlong legal disputes Utilitarian outcomes also sometimes called quotef ciencyquot greatest good for the greatest number Preserving peace and order in society Acquisition by Creation Key Terms and Concepts 9Created property can be not only possessed but exploited often by more than one person which gives rise to a distinct set of common law rules for created property Examples books songs photos media content a celebrity39s 1131116 9 Sometimes the value of property lies in being the only person or entity who can exploit that property during a particular window of time newspaper case 9The values driving property law below often come into tension in the IP context and have to give way to each other Values Driving Acquisition Bv Creation 9Des ire to reward labor 9Des ire to support a competitive marketplace antimonopoly 9Des ire to encourage and reward socially useful activities 9Desire to grant dominion over one39s own body and persona 9Des ire to treat human body parts with special consideration rather than as ordinary chattels 9Certainty of rules governing creation of property so the marketplace can adjust and respond Blackletter LawRules 9The raw factual information underlying a news story is not quotpropertyquot but an original news article that is written using that information is quotpropertyquot 9At common law a person39s property is limited to the chattels which embody his or her invention others may imitate those at their pleasure 9A copier can also quotname checkquot the copied item because the copy39s value rests in part on the fact that it39s a copy of a famous product Chanel No 5 case 90ne has property in one39s persona which includes one39s face likeness voice signature and name 9Property in one39s persona comes into court not as the right to use your own face voice signature and name but rather as a right to prevent others from using those aspects of your persona without permission from you 9A right to one39s persona can be assigned and inherited 9A person does not have a common law property right in his or her own body parts 9Abandonment of property is a question of intent it turns on whether the owner intended to abandon the property for the relevant purpose 9The tort of conversion is a propertybased tort it is defmed as the wrongful exercise of ownership rights over the personal property of another 9The term quotpersonal propertyquot for purposes of the law of conversion is a term of art only quotpropertyquot as de ned by law can be converted Moore v Regents Policv Considerations 9Granting exclusive property rights to the creator of chattels is not quotfreequot in that society pays a price for that protection accordingly the law endeavors to strike the right balance between competing values listed above 9 Sometimes the courts back away from fmding a new common law property right if they feel the legislature is in a better position to make policy distinctions via legislation e g Moore v Regents Rule A property owners right to real property is not absolute private or public necessity may justify entering onto his land Reliance interest in property Acquisition by Find subsequent possession Kev terms and concepts property law deals with relations among persons with respect to things not relationships between people and things 9Title is a relative concept the question is among those in the case who appears earliest on the chain of title who also has legal capacity to claim title 9Possession is evidence of title it is not synonymous with title 9 quotPossessionquot is a term of art you are only on the chain of title if the court recognizes you as a person who acquired quotpossession Accordingly the concept of possession is not so much a legal doctrine that courts apply but rather a conclusion the court reaches after considering where privileging different policy concerns will lead 9 Constructive possession is a concept the court applies when it wants to nd legal possession in the absence of literal physical possession 9An action in trover is an action to recover damages equal to the value of converted property 9An action in replevin is an action to recover the property its elf rather than damages equal to its value 9A bailor is a person who gives over real or personal property whether voluntarily or involuntarily 9A bailee is a person to whom such property is entrusted whether voluntarily or involuntarily Values amp policy concerns driving common law of acquisition bv nd 9Des ire to reunite property with its quottrue ownerquot which is to say the person who is rst in the chain of title 9Desire to reward labor 9Des ire to reward ef ciency that is efforts that make productive use of property 9Des ire to respect the principalagent relationship 9Des ire to respect the bailorbailee relationship idetter lawRules 90wners of land are typically deemed to have possession of things embedded in the land 9Possessors of land are typically deemed to have possession of loose chattels on the land though in some cases fmders trump even possessors of property 9Trespassers cannot be fmders they are among those who have no legal capacity to claim title 9Guests and invitees can be nders 9Property can be lost mislaid or abandoned 9Lost property is property the possessor set downdropped unknowingly 9Mis laid property is property the possessor set down knowingly but then walked away from without forming an intent to abandon the property 9Abandoned property is property the possessor set down knowingly and formed an intent not to come back and claim it 9As against the possessor of property where an item is found the fmder has a strong claim when he or she fmds property the court deems to have been either lost or abandoned dropped bills in shop 9As against the possessor of property where an item is found the fmder has a weak claim when he or she fmds property the court deems to have been mis laid Such property can be deemed to be in a bailment status barber shop case 9Whether voluntary or involuntary bailees have a duty to make a reasonable effort to nd the person who mislaid property 9As against their principals agents have no property rights because they act at all times on behalf of the principal 9As against nonagents agents have property rights as nders eg chimney sweep s boy Acquisition by Adverse Possession Kev Terms and Concepts 9Adverse Possession AP rests on the principle that at some point a longtime possessor of property has earned the right to become its new true owner 9AP is a mix of common law and statutory law but almost all AP disputes TURN ON THE PARTICULAR FACTS OF THAT CASE Accordingly resist the urge to reach for generalizations Instead memorize the blackletter law and principles so you can wade through any imaginable body of facts 9 quotColor of TitlequotPaper purporting to show title to a particular lot or lots that unknown to the person named in the paper title turns out to be false 9 quotTackingquothappens when a bona de purchaser seeks to add the time he or she has been into possession onto the time the original adverse possessor and perhaps some other bona de purchaser in between has been in possession 9Courts and legislatures are not always comfortable with the concept of adverse possession and are reluctant to allow it even if the facts suggest it has been established e g Van Valkenberg v Lutz 9Most AP statutes in the US are 610 years 9Today most AP disputes that are litigated are boundary disputes 9The legal quot ip sidequot of an action for adverse possession is an action for trespass brought by the true owner or a prior possessor seeking to eject the wouldbe adverse possessor from the land 9AP cases are very factdependent so analysis of the elements of AP along with the policy and equity considerations will tum on the facts of the particular case A trial courts factually ndings are only rarely reversed by the court of appeal However legal determinations are reviewed de novo 9 Sometimes as a remedy the court will order a forced sale of property to a party who unsuccessfully seeks title via adverse possession where the equities support a forced sale e g Minnillo v Gorski Blackletter LawRules 9Elements of AP 1 entry into possession 2 open and notorious possession 3 continuous for the statutory period 4 advers ityhostility quotunder a claim of rightquot 9You will typically be found to have only quotentered into possessionquot of property you actually posses suse as the true owner would 9lf an AP has color of title he or she is likely to be found to have constructive possession of all the land named in the title whether or not he or she actually possessedus ed it Exception if the lot described in the title turns out to be more than one lot and you only entered onto some of the true owners lands fair notice must be given to the title holder of property before it can be adversely possessed 9When one establishes ownership through AP the new title obliterates the old title the time of the new title relates back to the date of entry 9 quotOpen and notoriousquot means that you are holding yourself out clearly and openly as the person claiming exclusive right to possess the land e g put up a fence put up signs pay property tax tell people it39s yours etc However there is no presumption of knowledge when the AP involves a minor encroachment along a common boundary 9 quotContinuousquot does not necessarily mean constant continuity requires that the wouldbe adverse possessor use the land the way a reasonable true owner would use it Could differ if yearround home versus weekend place versus annual vacation cottage The point is that the wouldbe adverse possessor and not the true owner or anyone else is exclusively using it the way one would expect the true owner to use it 9Absence from property is not abandonment if you are using it the way a reasonable true owner would 9An adverse possessor can quottack onquot time when he or she is a bona de purchaser with privity of title to the adverse possessor plus others with privity of title Note however that only bona de purchasers can tack on the time of prior adverse possessors Those seeking title through AP alone without purchase cannot tack on the time of prior would be adverse possessors ln jurisdictions that apply the Maine doctrine a person seeking title through AP must show he KNEW he did not own the land in order to establish adversity quotbad faith requirementquot ln some jurisdictions a person seeking title through AP must show he or she believed in good faith that he or she owned the land in order to show adversity majority appeared to require this in Van Valkenberg v Lutz ln jurisdictions that apply the Connecticut doctrine there is no state of mind requirement other than that shown by an assertion through words or deeds of an exclusive right to possession lf a person seeking title by AP abandons the property then reenters it he or she has to start the clock on the statute of limitations all over again 9Doctrine of agreed boundariesif there is uncertainty between neighbors as to the true boundary line an oral agreement to settle the matter is enforceable if the neighbors subsequently accept the line for a long period of time how long is factdependent and a question for the jury 9Doctrine of acquiescencelong acquiescence even if shorter than the SOL for AP is evidence of an agreement between the parties xing the boundary line 9Doctrine of estoppelwhen one neighbor remains silent in the face of expenditures by another that suggests the neighbor39s understanding of the boundary39s location he or she cannot later claim that land 9When it comes to AP of chattels absent fraud or concealment the SOL starts to run when the victim of theft knew or should have known through the exercise of due diligence that the property was stolen AND who is in possession of the property who to sue for replevin The law presumes the statute starts to run which the chattels are stolen UNLESS the victim of theft shows otherwise you cannot sit on your rights eg Georgia O39Keefe paintings case Values and Policy Considerations related to Adverse Possession 9Desire to reward expectations and avoid quotwrenchingquot possession of land from a longtime possessor perhaps even bona de purchaser who has become attached to it 9Desire to reward labor that constitutes an improvement to land 9Desire to reward the ef cientproductive use of land 9Desire to punish inef ciencysleeping on one39s rights with respect to property 9Desire to quiet title in land so past and present disputes over title can be put to rest and it can be freely transferred Acquisition by Gift Kev Terms and Concepts 9 Testamentary gift postdeath gift typically has statutory requirements 9 lntervivos gift gift made during lifetime 90nce completed a gift is irrevocable 9Declaring an intent to make a gift is not the same as making a gift 90ne can gift present interests in property OR future interests in property Klimt painting case father retains possession and a life estate and gifts remainder to son 9 ln extremis means on the verge of death 9 Donatio causa mortis means a gift given in anticipation of impending death Blackletter LawRules 9First step is to identify with precision the gift the plaintiff claims was made eg life insurance policy remainder interest in painting Is there a disagreement possible on the facts about how best to characterize the gift 9Title and possession need not be delivered together to effectuate a gift of title Klimt painting case 9Person claiming gift was made has burden of proving essential elements of gift 9Essential elements of gift 1 manifest intent to make the gift 2 delivery of gift to donee 3 acceptance of gift 9lntent can be oral only does not require an objective action 9lntent is a typically a question of fact to be decided by the nder of fact 9Delivery requires an objective action oral statement not enough to accomplish delivery 9Delivery is a mixed question of fact and law to be decided by the fmder of fact and the court 9Delivery can be actual constructive or symbolic 9Actual delivery is literally physically handing the gift over Some jurisdictions apply the traditional rule that IF a gift is capable of being physically handed over it MUST be physically handed over or there is no delivery eg life insurance policy in Newman v Bost 9Constructive delivery is delivery of a thing that is a means of taking possession of the gift eg safe deposit box key treasure map safe combination password 9ln jurisdictions that follow traditional gift rules constructive delivery is acceptable if and only if it is impossible or impracticable to achieve actual delivery eg keyed fumiture in Newman v Bost 9 Some courts fmd that if you get a means of access to an object that has value in and of itself eg a bureau that is constructive delivery of that object but not necessarily everything inside it eg a life insurance policy inside the bureau 90n the other hand if you get a means of access to an object whose sole purpose is to hold another thing a safe a box for packaging a safe deposit box an eggshell that is constructive delivery of everything inside that object 9 Some jurisdictions follow a modem rule that even if physical delivery is possible constructive delivery is legally binding as long as the intent to make the gift at issue is clear 9 Symbolic delivery is delivery of a thing that symbolizes the gift eg letter 9Courts that apply the traditional rules of delivery do not recognize or accept symbolic delivery AT All Newman v Bost 9 Some courts apply the modern rule that symbolic delivery is acceptable as long as it ts the nature and circumstances of the gift and intent is clear suicide check case Klimt painting case 9The modem trend in the courts is also to take into account all circumstances while deciding whether a delivery has occurred Klimpt painting case 9Acceptance is presumed upon delivery though it is a rebuttable presumption Values and Policv Considerations Driving the Law of Gifts 9Want to accomplish wrenc of delivery since gifts are irrevocable once made ensure mental clarity 9Want to ensure evidentiary clarity by having objective act constitute delivery whether physical e g handing over object itself constructive e g handing over keys or symbolic write and mailing or handing over letter declaring gift 9Want to avoid fraud lntent has become more and more powerful over time in the law of gifts 9The modem trend is to evaluate delivery in context taking into account all the facts and circumstances 9The equities and propriety seem to loom particularly large in gift cas es Joint Ownership 9 Concurrent rights of two or more people of a present or future possession Kev terms and Concepts 9People can coown an interest in an estate a fee simple or life estate a remainder etc 93 types of coownership three ways people can hold property together 1 tenancy in common TIC 2 joint tenancy J T 3 tenancy by the entirety TBE 9Historically courts favored J T so any ambiguity in the language of the deed was resolved in favor of fmding a J T 9Today courts favor TIC so any ambiguity in the language of the deed is resolved in favor of fmding a TIC 9This means that if you want to create a J T or TBE the language has to be absolutely explicit e g to A and B to hold in joint tenancy with a right of survivorship not a TIC If the language is not explicit e g to A and B a married couple jointly there s a signi cant risk a court will nd the deed created a TIC 9The advantages of a right of survivorship are 1 the property avoids the slow painful probate process and 2 the property cannot be the subject of dispute among bene ciaries andor heirs of the deceased 9Denying a coowner access to any part of the property is called an ouster 9Remedy of partition in kinddividing the actual physical property 9Remedy of partition by saleselling the property and dividing the proceeds idetter LawCoOwnership In General 9TIC has the following characteristics 1 separate interest but unity of possession all who own part have right to occupy 100 2 does not have to be equally divided 3 interest is alienable can be sold devised inherited 4 no right of survivorship Because there is no right of survivorship in a TIC upon death the deceased s interest in the TIC passes into his or her estate to be divided among bene ciaries if there s a will andor heirs if there s no will or if the will does not specify who will inherit the deceas ed s share of the TIC 9J T has the following characteristics 1 right of survivorship 2 4 unities presenttime title interest possession 3 one canunilaterally trans fer his or her interest 9Trans ferring one s interest in a J T destroys unities of time and interest severing the J T Automatically becomes a TIC 9With J T unities can be severed unintentionallydoes not need to be intentional 9TBE requires 4 unities plus marriage Can only be severed via 1 divorce 2 mutual agreement 3 death TBE carries right of survivorship 9 quotRight of survivorshipquot in both a J T and a TBE means the interest of the person who died quotvanishesquot upon death and that the remaining JTs or the spouse automatically own the whole thing Nothing passes into the estate 9With a TIC or J T one of the owners can seek judicial partition of the whole or sell their potion 9Neither a TIC nor J T requires notice to the other tenants before selling one39s portion even if that changes the nature of their coownership from a J T to a TIC 9With TBE neither spouse can unilaterally transfer or seek partition of the property Can only sell or seek partition by agreement 9While both spouses are alive TBE can only be ended via mutual agreement or divorce Death ends the TBE because once the remaining spouse holds the entire interest it s a fee simple absolute not a TBE any longer 9Creditors of a single debtor can only reach property the debtor has the power to alienate unilaterally 9Accordingly a creditor of one coowner in a TIC or J T can reach his or her interest but a creditor of one co owner in a TBE cannot reach that interest 9Creditors of both owners in a TBE can reach the property to satisfy the debt 9When ready to trans fer one s interest of a TIC or J T one can and to be safe probably should use a quotstraw man rather than transferring interest from oneself to oneself In modem times many jurisdictions do not require two to transfer so it may not beuniformly necessary but it s the safest way to go 9Using one39s part of a J T as collateral for a loan does not destroy the unity of interest so it does not sever the J T 90ne joint tenant can take out a loan against the J T or lease the J T without informing the other 9Leasing a J T does not destroy the unity of possession thereby severing the J T as long as all other joint tenants still have access to the entire property This means the lessee bears the risks of shared possession and the possibility of a dispute among coowners leading to partition 9When one coowner leases part or all of the property the other coowners have a right to their proportional share of the rental income lf one coowner takes possession of part or all of the property he or she does not have to pay rent to the other coowners as long as they have access to the entire property 9Where coowners disagree over the future of property itself and come to court to end the cotenancy through partition they may ask for partition in kind or partition by sale 9Courts tend to prefer the remedy of partition in kind over partition by sale when selling the property would mean quotwrenchingquot a coowner from the land Accordingly the courts will presumably partition in kind unless l partition in kind is not feasible too many people involved or land is not practically divisible AND 2 highest and best use of the land will be achieved via sale Highest and best use means the greatest good for everyone considering fairness and ef ciency 9The burden is on the coowner seeking partition in kind to prove both of the above elements are satis ed idetter LawJoint Ownership Married Persons 9Married people can hold in TIC J T or TBE 9English system common law perceived property ownership after marriage as separate but gave the husband full control 9The Married Women39s Property Acts equalized the sexes and protected property held in TBE from creditors of either spouse 9TBE leaves creditors of either spouse vulnerable More unfair to involuntary creditors like tort creditors than voluntary creditors like contractbased creditors 9Continental system perceived property ownership after marriage as combined the quotcommunityquot owns it all 9Today US law trends towards preferring the English notion that during marriage property remains separate upon death but the continental notion that marriage unites the property upon divorce 9The IRS or other federal agency can trump state property law and reach an interest in a TBE to satisfy the debt of one spouse 9The states differ as to whether increased eaming power acquired by one spouse during a marriage via a degree for example is property upon divorce Some like Colorado say no Others like NY say yes 9ln courts that recognize a degree as an asse in the marriage some measure its value by the cost of tuition Others measure its value in likely future earnings increase lues Driving Law of CoTen21ncv 9Ef cient use of property greatest use for greatest number 9Taking good care of property 9Fairness to each of the cotenants 9Fairness can mean more than just monetary fairness bam case Tenancy in Common 9 Separate but undivided interest in property 9 may be conveyed by will or deed 9 No survivorship rights Joint Tenancy 9 Right of survivorship 9 decedent s interest is extinguished 9 As a Common Law ction joint tenants are regarded as a single owner 9 In theory each owns the undivided whole 9 Common Law insisted that all interests of joint tenant owners be equal 4 Unities required for Joint Ownership 1 Time 9 the interest of each joint tenant must be acquired or vest at the same time 2 Title 9 all joint tenants must acquire title by the same instrument or by joint adverse possession 3 Interest 9 all must have equal undivided shares and identical interests measured by duration 9 ie both must have fee simple 4 Possession 9 each must have a right to possession of the whole 9 after a joint tenancy is created however one joint tenant can voluntarily give exclusive possession to the other joint tenant 9 If one of these unities does no exist a tenancy in common is created instead 9 If one of the four unities is severed the joint tenancy is destroyed and becomes a tenancy in common 9 Joint tenants can change their interests into a tenancy in common by mutual agreement to destroy one of the four unities 9 One joint tenant can convert a joint tenancy into a tenancy in common unilaterally by conveying his interest to a third party 9 This destroys at least one of the unities 9lf tenants in common or joint tenants cannot solve disputes by mutual agreement one of them can bring an action for judicial partition 9 Such an action will either physically partition the tract of land into separately owned parts or order a sale of the land and divide the proceeds among the tenants Tenancy by the entirety 9 only created by husband and wife 9 like a joint tenancy it requires the four unities 9 But includes a right of survivorship unlike a tenancy in common 9 Husband and wife are seen as one person holding title 9 Requires mutual agreement of husband and wife in order to trans ferconvey title 9 divorce terminates the tenancy because it terminates the marriage 9 usually becomes a tenancy in common Rule If an instrument conveying property to two or more persons is ambiguous a tenancy in common is created unless an intent to create a joint tenancy is expressly declared 9 for eXample9 to A and B jointly is not enough to make a joint tenancy 9 must say to A and B as joint tenants with right of survivorship 9 Must be very clear 9Words of purchase 9Words of limitation 9 Avoidance of Probate because a joint tenants interest in the property disappears 9 therefore there is no interest to pass 9 a joint tenant cannot pass hisher interest in the joint tenancy by will because the interest dis appears at death 9 this has important consequences for creditors 9 if a joint tenant dies his creditor can t seize his interest because the deceased joint tenant no longer has title 9 but a creditor can seize a joint tenants interest if he is still alive 9 Unequal shares Allowed today Pg 324 9 Joint tenancy terminates through9 voluntary conveyance 9 partition proceedings 9 involuntary alienation under execution 9 Each joint tenant has the right to convey his interestestate by of gift or otherwise without the consent or knowledge of the other joint tenant which would terminate the joint tenancy At Common Law9 one could not create a joint tenancy in himself and another by direct conveyance if one of the parties already owned interest in the property 9 this was necessary to happen at the same time unity of time 9 and by the same conveyance unity of title 9 Therefore the owner of the property had to convey the property to a third party dis interested in the property called a strawman 9 the strawman then convey the title to the two grantees as joint tenants Modem Trend9 Creation of joint tenancy by direct trans fer California pioneered 9 joint tenancy can be made from sole owner to himself and others 9 created to avoid necessity of strawman9 archaic Mortgages 9 Title Theory of Mortgages minority 9 a mortgage was a conveyance of legal estate vesting title to the creditor mortgagee 9 Therefore is was considered a severance of a joint tenancy when one joint tenant mortgages his interest to a creditormortgagee 9 Lien Theory of Mortgages majority 9 A joint tenancy is not severed when one of the joint tenants executes a mortgage on his interest of the property because unity of title is still preserved 9 rational a mortgage is simply a lean mortgagerdebtor still holds legal title in the joint tenancy unless he defaults in loan payment then creditors rightinterest comes into effect Rule A partition by sale can be ordered only under two conditions9 1 Partition in Kind is impracticable or inequitable due to physical attributes of the land 2 Interest of all owners would be better promoted by partition through sale 9Burden is on the party requesting partition by to sale to show that such sale would better promote all the owners interest Sharing Bene ts amp Burdens 9 Concurrent owners can enter an agreement concerning their rights and duties in respect to use maintenance and improvement of the property 9 these matters are governed by the law of contracts 9 Problems not addressed in the contracts are determined through property law Rule Tenancy in Common 9 Absent an agreement to pay rent or an ouster by one of the cotenants a cotenant in possession is not liable to the other cotenant the value of his us eoccupation of the property ie pay rent for using the property 9 cotenant A must ouster cotenant B from use or occupation of the property owned together before cotenant B can demand rent Ouster 9 used in two situations9 l the beginning of the running of the statute of limitations for adverse possession 2 liability of occupying cotenant in common to pay rent to the other cotenant Rule Occupying cotenant may be liable to pay rent to the other cotenant if9 l the occupying cotenant refuses the demand of the other cotenants to use and enjoy the property 9before an occupying cotenant can be liable for rent to the other cotenant the occupying cotenant must deny the other cotenant the right to enter Rule Joint tenancy 9 One joint tenant can lease only his share of the property 9 as long as the other cotenants rights to possession of his parts is not denied Servitudes 192 763887 1 Covenants Came about because of limitations on easements A Real Covenants Can be positive or negative 1 Characteristics a Can be positive or negative b any type of promise conceming the land c Runs with the ES TATE interest in land not the land its elf 2 Creation a Deed or other writing strictly required 3 AssignabilitvTransferability a Yes if 1 Person purchasing burdened land received ACTUAL notice equity 2 Some Jxns require covenant was made as part of the trans fer of the deed written in HORIZONTAL Privity 4 Privity a Common Law Vertical Privity For both the burden and bene t to run No AP 1 For burden Has to be the same type of estate all the way down 2 For bene t need bona de sale of the same or a lesser estate all the way down b MODERN TREND Don t need privity because of notice req 5 Remedies a Damages B Eauitable Servitudes enforceable at equity Restriction on how the land will be used 1 Created because of fear about negative easements 2 Characteristics a Remedy is equitable injunctionspeci c performance b ALWAYS NEGATIVE c Any sort of promise 3 Creation a No writing required except 1 Negative Reciprocal Easement a Parcels of land arranged in a common planpurpose in mind b Some lots sold with a burden attached intending to bene t all the lots in the common plan c Deeds are recorded d Notice Constructive Notice will do some jxns Inquiry Notice bc recorded 2 Neponsit Case Property Owner s Association agreements are enforceable against subsequent purchasers if 1 Original Parties so intended 2 covenant touches and concems the land b Shelley v Kraem er Racially restrictive covenants are not enforceable for violation of the Equal Protection Clause of the 14th Amendment It s as if they never even existed 4 AssignmentTransferabilig a If original parties intended promise to run with the land AND purchaser has actual or constructive notice AND promise touches and concerns the land it may be transferred 1 Notice is very essential here As long as it s properly recorded it meets constructive a T ulk v Moxhayz If a subsequent purchaser has notice to a restriction placed on the land that restriction will be enforced at equity Notice makes it fair 2 Touches and Concems In purpose amp effect substantially alters the rights of the bene tted owner 5 PriviLv a Common Law 1 Does not have to be there for burden to run APs can be burdened a current owner needs notice for it to run as well 2 Required for bene t to run APs cannot bene t b Modern Trend 1 No Privity because of notice req 6 Notes from Supplement a For NRE If lot is transferred free and clear from any restriction on it it will remain free and clear forever unless owner acquiesces and signs writing C Modi cation or Termination of Covenants 1 Merger Release Express Release if both parties agree and it is written and notarized a SOF requires a writing here no oral Estoppel 3 4 Abandonment Hard to prove requires unequivocal evidence of intent to abandon 5 6 Unclean Hands Changed Conditions Done by the court when proper conditions have so changed that it is impossible to accomplish the purposes for which the servitude was created in the first place a Reno NV case Even though the surrounding area beca1ne commercialized the original purpose of the restrictive covenant can still be accomplished and bene t still runs so it s enforceable 7 Laches 8 Acquies cence 2 Easements A Aff1rmative right to do a physical act on another s land 1 Creation a Express Grant must be in writing deed 1 Willard Owner can sell a parcel and reserve an easement for himself or a third party b Implication top pg 789 Starts with quasieasement 1 Prior Existing Use Focus on Intent of Parties a Land is being severed by its common owner into multiple parcels b The use was claimed prior to the severance and was apparent and continuous and bene tted one parcel at the expense of the other c Remains reasonably necessary to the enjoyment of the dominant tenement d Van Scmdt Sewer access is a good example 2 Strict Necessity More likely when easement is reserved by prior common owner a Must have been a common owner previously to both parcels b Must be absolutely necessary ie the landlocked parcel 1 denial of easement effectively denies access to parcel without disproportionate effort on owners part C Comes into existence at the time of or caused by the conveyance of parcels 1 Prior use not required d Othienz Was denied this argument bc at the time of severance the easement wasn t absolutely necessary yet 3 Reuni cation of the parcels extinguishes the easement by implication c Estoppel 1 Servient Tenement allows Dominant tenement to use their land in some way and servient owner should foresee dominant owner relies on this permission and does in fact do this without servient owner mentioning revocation of this use 2 Oral or Written 3 Holbrookz A license can grow into an easement if the licensee is granted a right of entry and has made improvements to the land relying upon the licensor s approval a Revoking license now would be unjust since licensor stood by silently d Prescription elements of AP adverse continuous and uninterrupted most important 1 Openly 2 Continuous and uninterrupted for statutory period 3 Claim of right adverse to the owner of servient tenement rights and with his knowledge 4 Owner does nothing to stop it e Public Trust Doctrine NJ Beach Case 1 Public has the implicit right to use tidelands of the ocean shore for recreational purposes 2 Generally carries along with it a right of access through drysand property to get to the tidelands Sometimes even have public right to use drysand area 3 This right based in Roman Law the reasonable use of natural resources belongs to everyone 4 Matthews Factors a Location of dry sand area in relation to foreshore wet sand b Scope and availability of public dry sand area c Nature amp extent of public demand d Usage of dry sand area by owner B Negative right of holder to prevent the owner of land form using it in a certain way 1 Characteristics a Types Light Air Building Support Flow of Arti cial Stream View Solar Panel Conservation 1 Light amp Air can t be created by implication in most states 2 Conservation Typically in gross bc they are held by a personorg a Bene t amp the burden from fact of undevelopment 1 Burden hinders economic development dead hand control b Private but can have a big public impact c Perpetual amp transferrable 2 Creation Never Prescription a Express Grant b Implication c Estoppel C Appurtenant right that bene ts the dominant parcel and bene ts the servient parcel 1 Attaches to the parcels inde nitely with intent and notice to subsequent purchasers 2 Usually will wind up being that the two parcels are adjacent to each other 3 Brown v Voss An easement granted to bene t a dominant parcel of land cannot be extended to serve two dominant parcels unless there is no increased burden to the servient estate 4 If violated it is considered trespass must pay damages D In Gross is carried with a bene tted person and only parcel of land affected is the one in which the person bene tted can access to take what they want 1 Can be freely transferred amp inherited E Pro ts The right to go on another s land and remove the soil or a product of it 1 mining drilling game hunting F T ransferabilitvAssignabilitv 1 Burden Always transfers to servient estate because it runs with the land 2 Bene t depends upon whether appurtenant or in gross a Appurtenant Usually transfers even if not in the deed unless the circumstances unduly burden the servient tenement b In Gross at common law not transferable Modemly yes they are usually transferable especially for commercial use and for noncommercial when the intent is clear 3 Lutheran Summer Camp Case An Easement in gross may arise by prescription and is assignable if the creating parties so intend a However this easement is subject to the onestock rule if divided amongst different holders It must be used in conjunction as an entirety G Termination 1 Usually lasts forever unless maybe abandoned a Abandonment easement holder intends to abandon and shows af rmative actions manifesting this intent rising beyond mere nonuse b Preseault Acts which are inconsistent with the use for which the easement exists counts as abandonment Here govemment stops to use easement for a railroad and instead a public trail constitutes a taking and needs to compensate 3 License A A purchased right to use licensor s land which otherwise would be trespass B Can be done orally or written C Revocation 1 Could possibly be estopped from revoking if the only thing not making it an easement is failure to satisfy SOF and there has been actual detrimental reliance on the licensor s promise 2 Licensee also has ownership interest in chattels on the land LandlordTenant 1 Leasehold Estate describe an ongoing relationship between two parties with respect to an interest in land A Hybrid between an interest in land and a contract 2 Types of Leaseholds A Term of Years 1 Timing Set start date and end date 2 Creation Writing required no implication 3 Termination No notice needed because the writing speci es it a death of landlord or tenant does not terminate it 4 B Periodic Tenancy 1 Timing Lasts from periodtoperiod 2 Creation Writing or Implication 3 Termination Required varies by length of period a Common Law yeartoyear requires half year s notice anything less requires full period s notice ends at the end of a period always b Modemly 30 days notice suf cient for every period still applies at the end C Tenancy at Will 1 Timing Not set endures as long as the parties want it to 2 Creation Usually by implication 3 Termination Presumed to be mutual by both parties a Also by death of either party b Garner v Garrisb Right of termination can be reserved for one party expressed in terms of lease D Tenancy at Suffrance 1 Creation When tenant holds over stays on longer than lease stipulatesrefuses to leave 2 Landlord s options a Evict tenant by not consenting and makes T a trespasser L entitled to damages b Consent to new tenancy by writing or implication Delivery Subleases amp Assignments A Delivery 1 English Rule Implied covenant to deliver the property in a condition where it is empty and ready to be lived in when leasehold starts and not to just deliver the lease 2 Am erican Rule Default is no implied covenant to deliver lease but can be contracted around 3 Problem When holdover tenant refuses to leave breaking full delivery In English can sue the landlord for damages In American have to go after the holdover a Hannan v Duscb Illustrates this problem difference between England amp America B Sublease 1 Transfers less than the entire term of the lease to 3rd party 2 Privity Remains between lessor and lessee doesn t transfer to sublessee Lessee retains reversionary interest C Assignment 1 Transfers the entire term of the lease to 3rd party assignee steps into shoes of lessee 2 Privity Becomes between assignee and lessor 3 Ernst v Conditt Illustrates this Court will look at actions of parties and situation rather than just language in the deed An assignment called a suble is still an assignment D Denial of Sublease Trans fer in Commercial Lease 1 Majority Landlord doesn t have to state a commercially reasonable objection to deny 2 Minority Needs a commercially reasonable objection to deny a Kendall v ErnestPestana Inc CA can t arbitrarily deny this Courts want to encourage free alienability of interest in land Tenant Default amp Abandonment A Default Failing to observe a lease obligation both parties I T in possession a Traditionally L can use selfhelp to regain possession if done peacefully b Modern Go to the courts and we will get you possession back 1 Summary proceedings to get T out fast amp then go through trial for damages 2 Berg v Wiley A L cannot use selfhelp to evict a tenant in default who has not abandoned or surrendered the premises Must resort to the courts B Abandonment T walks away wo good cause 1 Traditional L has no duty to mitigate damages by trying to fmd another T 2 Modem L does have a duty to mitigate by trying to fmd another T w reasonable efforts a This default rule can be contracted around b Sommer v Kridel Illustrates the default rule C Constructive Eviction T walks away with good cause 1 Reste Realty Corp v Cooper When a L causes substantially interference with enjoyment of leased premises T may claim constructive eviction bc CQE is breached a T s right to claim this will be lost if no vacation win a reasonable time after the breach 5 Condition of the Property A CQE Covenant of Quiet Enjoyment 1 Scope Applies to both Commercial amp Residential 2 Breach When a Conditions make property substantially unsuitable for the purpose of the lease OR seriously interfere w enjoyment of property b Has to be permanent Not constant but at least ongoing 3 Enforcement Can be waived by passage of time if didn t mention problem B IWH Implied Warranty of Habitability 1 Scope Residential Only 2 Breach When a Premises are not even minim ally adequate from a healths afety perspective 1 ex no gas electric garbage no locks sewage lead paint no heat in cold place no AC in hot place 3 Termination Can t be waived by passage of time public policy concerns 4 Remedy Punitive to discourage slumlords 5 H ilder v St Peter Modernly this warranty is implied in residential leases we are beyond the time when accepting premises as they are found makes sense Old Rule C Commonalities 1 All jxns recognize CQE but not all IWH 2 CANT be contracted around 3 T must give notice of violation and reasonable opportunity to fix problem before suing or abandoning lease PUBLIC ISSUES Underlying Premise Every person should use their property so as not to injure another s property or interfere with the us eenj oyment of their property Balance the Equities here Overall hardships on the parties involved A Nuisance Made by Judges 1 Public unreasonably interferes wi right common to the general public Unreasonable Interference if a violates statute b interferes signi cantly w public rights c produces longlasting unwanted effects Local governments usually have the power to stop these Can t give unequal treatment compared to nonreligious institutions discriminate or totally exclude Substantial Burden substantial connection bn coercedirnpeded conduct and the religious exercise of the institution necessary to practice the religion Sikh Temple Case Can t apply a landuse regulation in a manner that imposes substantial burden on a person religious assembly or institution Sometimes a Zoning Restriction can be so intrusive that it is a taking C Takings Constitutional concems Executive Branch 1 What Counts as a Taking a Taking per se Any permanent physical invasion authorized by govt no matter how minor is a taking 19 Temporary Invasions are Not Takings C Eminent Domain Fed amp State govts have the right to take property for public use and can also delegate that power to localities 2 What Counts as Public Use a Govemment can usually take property to build a public facility b Govemment can usually take property to build a private business which is 100 open to the public Anything less than 100 public is taken on a casebycase basis c Govt CAN T trans fer property from one private owner to another d Govt CAN T take private property under the mere pretext of a public purpose has to actually be one Kelo Court 1 Public Use means public purpose 2 Public Purpose has a very broad meaning 3 Courts give public of cials deference on what land use will best serve this public purpose 4 legitimate govt goals can include economic spiritual aesthetic physical monetary 3 How much compensation is just Current Market Value D Challenges to Government Intrusion A Zoning 1 Powers Locality lacked the statutory power to create this ordinance Citizen says you entity are acting ultra vires beyond your scope of authority 2 Unlawful Delegation Wrong personbody made the fmal decision Looks at correct entity and says only you have the power to do this can t pass your power on to the entityperson I am suing 3 Preemption The higher body of law trumps the lower one Federalism 4 Substantive You are infringing upon my constitutional or statutory rights state or fed Can combine challenges together as well B Taking Violates statute or 5th Amendment 1 As applied Challenge 2 Facial Challenge
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