LAW5400 Real Property Exam Outline I Introduction

A. Defining Property - Property is a bundle of rights. i. Right to possess/use property. Not an absolute right. ii. Right to include/exclude. Not an absolute right. iii. Right to sell/transfer property. Not an absolute right. iv. Right to alter/destroy property. Not an absolute right. I. The right to transfer, i.e. the right of alienability, is a fundamental part of Americas economy. State v. Shack (NJ, 1971) - Shack attempted to go on to the a mans property to offer legal advice to migrant workers staying and working on the mans property. Whether a property owner who houses and employs migrant workers has the right to stand between the migrant workers and those who seek to aid them. The defendants invaded no possessory rights of the farmer-employer because the migrant workers must be allowed to receive visitors there as long as they are doing no harm to others, Economic Opportunity Act of 1964.

II Acquisition of Property 1st Possession

A. By Discovery or Conquest Johnson v. MIntosh (U.S. 1823) Land is claimed by in Illinois, conveyed to him by the Piankeshaw Indians, and the , under a later grant from the United States. Whether the US recognizes the sale of property when it is bought from a Native American tribe. Rule - the first in time to possess, not occupy is what is crucial. Possession entails doing enough to the land to promote the greatest good. i. Positive Law a property exists only to the extent of which it will be recognized by the government. ii. Natural Law rules are fundamentally just. I. Theories that give rise to possession: i. Lockes Theory- What you mix your labor w/ becomes yours; therefore by cultivating the land, the land becomes your possession. ii. Utilitarian Theory- The land must be used for the greatest good of society. Cultivation, rather than fallowness promotes this greatest good. - Pro - Gives a bright line rule of who actually owns what and what will be required to establish possession. - Con - This view of possession encourages those with the most resources to go out and take up as much land as possible.

B. By Capture Pierson v. Post (NY, 1805) was chasing a fox in the woods, but captured the fox before the got him. The issue for the court was whether an animal ferae naturae becomes property of a person when the person is in pursuit of the unharmed animal. Rule - Awards possession to the one who actually reduces the fugitive thing to actual possession. I. Ratione Soli Idea that all things that are part of nature fall into this category (i.e. Animals, Natural Resources). i. If an animal is captured and then escapes from capture, it is not considered lost, it is considered part of the wild again. ii. Same rule does not apply to domesticated animals. The original owner maintains possessory rights if the animal escapes. iii. Constructive Possession - The person who owns the land has a possessory interest in the animals that occupy it, over a trespassers interest in the wild animals. II. Capture 3 elements need to be met: i. Intent to capture Intent is implied if you are in pursuit. ii. Deprivation of its Natural Liberties No longer in control of its decisions. iii. Certain Control 2 types: - Actual Physical Possession of a thing. - Mortally Wound - W/ no intent to abandon. Ghen v. Rich (U.S.D.C. 1881) Whalers off the coast of Massachusetts harpoon whales with special markers and them claim them when they wash-up along shore. The issue for the court was whether an individual can claim a dead whale as his property when that individual mortally wounded the whale and it was customary in the region to claim the whale once it had died a few days later. Rule - Need not have physical possession of the animal to actually claim possession, just take the necessary steps to bring the animal under physical control III. Custom - can often dictate the meaning of possession, as can circumstances. In Ghen v. Rich the custom of whaling doesnt allow one to bring the wild animal under physical control. Only have to do what the custom dictates to establish possession, which was marking the whale w/ a harpoon flag. If customs of industries are promoted, and possession is tailored to fit that custom, it will encourage the continued participation in that industry. Keeble v. Hickeringill (Queens Bench 1707) owns a pond he uses for duck hunting. shot off shotgun near pond to scare off ducks from the s pond. Resolved on the basic principle, this is his trade, and he that hinders another in his trade or livelihood is liable to an action for so hindering him. Rule Ratione soli, the had an interest in the ducks on his land. Popov v. Hayashi (CA 2002) Barry Bonds 73rd homerun ball case. Discussed at great lengths whether either man had possession of the baseball. The issue for the Court was when an actor undertakes significant but incomplete steps to achieve possession of abandoned personal property and the effort is interrupted by the unlawful acts of others, does the actor have a legal pre-possessory interest in the property? Yes. Rule - A pre-possessory interest constitutes a qualified right to possession, which can support a cause of action for conversion.

IV. Conversion - Conversion is the wrongful exercise of dominion over the personal property of another. There must be actual interference with the plaintiffs dominion. V. Trespass to Chattel - exists where personal property has been damaged or where the defendant has interfered with the plaintiffs use of the property. Actual dispossession is not an element of the tort of trespass to chattel. C. By Creating Intellectual Property International News Service (INS) v. Associated Press (AP) (US, 1918) - INS bribed AP members to violate their by-laws and give news concerning WWI before publication of the stories. The issue for the court was whether current, hot news falls under the umbrella of intellectual property when a significant amount of labor, skill, and money went into obtaining and distributing this news. Yes, had quasi-property rights (pre-possessory interest) over breaking news. Rule - When a party undertakes some task or seeks some material, tangible or intangible, to make money, the property will be treated as quasi-property. (Lockes Labor Theory) I. Common Law Rule A person doe not have a right to your ideas, only a right to the chattels that embody those ideas. The only exception to this rule is the news, as you see in INS v. AP. i. Since AP had expended money and effort to gather the news, INS could not reprint APs stories as their own. News is not an idea, but rather the product is a chattel which embodies the APs labor, therefore INS cannot take that particular publication and reproduce it as there own. Cheney Brothers v. Doris Silk Corp. (U.S.C.A. 1929) Cheney Brothers makes silk products with designs, copied design and sold at a reduced price. The issue for the court was whether a remedy is warranted, under property law when a company reprints another companys design and sells it at a lower price. To not allow the imitation of products would allow companies to set up monopolies and charge whatever they wanted for their products. Rule A person does not have a right to their ideas and cannot prevent others from imitating them. II. Utilitarian Theory for not protecting ideas: i. If ideas are left open for copying, it allows them to be improved upon ii. Prices of products will go down if they are produced by many different producers, and iii. Public good as a whole is benefited through open competition. III. Patents Can be granted for processes or products that are novel, useful, and nonobvious. Patents will not be issued for discoveries such as a new plant or new mineral. IV. Copyrights Protects the expression of ideas in books and articles, music, artistic works, and so forth. Protection begins as soon as the work in question is set down in a tangible medium. i. In Cheney v. Doris, the design could not be copyrighted because at the time clothing design could not be copyrighted. Today, however, anything expressive can be copyrighted, provided the expressive aspect can be separated from the function. V. Trademarks are words and symbols indicating the source of a product or service; owners of marks are protected against use of similar marks by others when such use would result in confusion.

D. By Creation Property in Ones Person Moore v. Regents of the University of California (CA. 1990) - was treated by 's, who notified him he had life-threatening leukemia, and that he'd need his spleen removed. asked if he could use some of his cells to do tissue research. agreed not knowing others have been paid hundreds of thousands of dollars for doing the same thing. The court asked whether a party has claim to profits made off of his or her own body parts when the party profiting did so without notifying the party seeking profits. No, did not expect to retain possession of his cells, in order for this cause of action to fly he would have needed to prove that he had at the very least an ownership interest in them. Rule - To establish a conversion, plaintiff must establish an actual interference with his ownership or right of possession. I. Should Conversion Liability be Extended? The court suggests three reasons why it would be inappropriate the extend conversion allegations to cover situations like Moore: 1. A fair balancing of the relevant policy considerations counsels against extending the tort. 2. Problems in this area are better suited for legislative resolution. 3. The tort of conversion is not intended to protect the patients rights.

III Acquisition of Property Subsequent Possession

A By Find Armory v. Delamirie (Kings Bench 1722) chimney sweep found a piece of jewelry while cleaning a chimney. Took the jewelry to s jewelry shop where the kept the gem from the piece of jewelry. The court asked whether a subsequent finder as property rights over lost property. Rule - A finder prevails against all but the true owner, and (sometimes) the owner of the land where the object is found. I. Lost Property Owner unintentionally parts with piece of property. When a party finds lost property, he maintains property rights over it except for the last true owner. This encourages the productive use of unused property. There are exceptions concerning property found on another persons land however: i. Property attached to or under the land belongs to L.O. ii. Property found in a private section of the home belongs to L.O. iii. Property found via trespass, trespassers do not have a claim of title over any subsequent or prior possessors iv. Property found via employees, employee must surrender their find to employer if they have a contractual duty to report find. II. Abandoned Property - Original owner intentionally relinquishes title, belongs to the first to take possession over everyone, the property has been thrown away Hannah v. Peel (Kings Bench 1954) - bought a house and never moved in and subsequentally leased it to . found a brooch while cleaning the house one day. The court asked whether the landowner has first rights to an item found in their house when they had no knowledge of a things existence and never lived in the house. Rule - While a man possesses everything attached to or under his land, he does not necessarily possess a thing lying unattached on the surface, that have been long undiscovered due to the owners lack of use. i. Hanna acts as an exception to the exceptions for deciding ownership of lost property. III. Treasure Trove Property Property that was concealed/hidden by original owner, but original owner never returns to take possession. McAvoy v. Medina (MA. 1866) saw and took a pocketbook lying on a table in barbershop. The court asked whether a found object belongs to the finder when its discovered in a private business when the object was intentionally placed where it was discovered. Rule When property is intentionally placed somewhere and then forgotten it is deemed mislaid and the owner of that show has the most prevalent property rights. IV. Mislaid Property - Intentionally placed but apparently forgotten. The rule is that possession is awarded to the landowner subject only to true owner. Property owner retains object for safekeeping should the true owner return. Theory is, since it is mislaid and not lost, the true owner will return assuming they remembered where they misplaced it. Whether lost or mislaid can be determined by where the object is found: i. Table Top mislaid -true owner will return-property owner retain possession ii. Floor - lost - not purposefully placed there, true owner has no idea where it is, and first to possess it owns it as against all but the true owner

B. By Adverse Possession Van Valkenburgh v. Lutz (NY. 1952) purchased a lot in New York that had been used by for the years prior to the s purchasing. had a garden there, built a small shack, and had other items on the lot. claimed adverse possession. The court asked whether the did enough over the years to claim adverse possession. Rule - If the true owner of land fails to start legal proceedings to remove a person who adversely possesses his land within the period of the statute of limitations, the true owner is forever barred from recovering his property from the adverse possessor. I. Adverse Possession - Land is better if it is put to use, this theory encourages that the land is better if it is taken over and put to use rather than being left fallow by the true owner. Those who put effort and time into the land should be rewarded. Allows for disputes to be cleared up, conveys property and settles who actually owns what. Slothful owners who do not make use of their land after time should be punished. Elements: 1. Actual Entry that is Exclusive - Possessor must actually take possession of the owners land and use it. Van Valkenburg v. Lutz - N.Y. statute actually required that the property had to be substantially enclosed or usually cultivated in order to be classified as put to use Mannillo v. Gorski (NJ. 1969) - bought his lot in 1946 and officially had it conveyed to them in 1953. In summer of 1946 s son made additions to the house, then in 1953 when he raised the house, he adjusted the previous additions, which resulted in the steps and concrete walk impeding on the s lot in the amount of 15 inches. The court asked whether the 15 inches the impeded onto s property is open and notorious. Rule - In order to constitute open and notorious possession, the true owner must have actual knowledge of a minor encroachment along a common border. 2. Open and Notorious - It must be visible to everyone, including the owner that you are using it. Can be done by placing a fence or some other structure to announce that you are using it. Notice many be (1) Actual or (2) Constructive. Some jurisdictions hold that encroachments onto the land of another are not open and notorious if the encroachment is not detectable with the naked eye (Mannillo v. Gorski). i. This would not place the true owner on notice that an adverse claim is being made ii. Inquiry notice, which is when circumstances place the true owner on notice to inquire into the possibility that an adverse claim should be sufficient according to Jellum iii. Actual notice, too tedious, would involve a survey every time 3. Adverse and Hostile Under a Claim of Right/Title - Use of the land was not obtained through the consent of the owner. To determine if an adverse possessor is making a claim of right/title we must look at the state of mind of the adverse possessor. Three views of the court: i. Subjective Good Faith Standard - The adverse possessor must have entered the land under the good faith belief that the land that he was occupying was actually his. Possessors that know that they do not own the property, cannot be awarded claim of title using this standard of hostility ii. Subjective Aggressive Trespass Standard - The adverse possessor must know that the property that they are occupying is no their own but intend to occupy it nevertheless. Will not be awarded title unless you enter the property w/ the intent of establishing adverse title.

- Cons - Outdated, was important when we wanted to encourage the taking of unused land during the frontier days. Encourages the pirating of land. Majority of disputes are minor boundary disputes that are not aggressive purposeful encroachments iii. Objective Standard (Majority Standard) - State of mind is irrelevant, assumes that someone is making an adverse claim against the rightful owner regardless if that is the intent or not. Adversity to the real owners claim will be implied if all other elements have been met. Howard v. Kunto (WA. 1970) - Several owners of property in a summer resort destination discovered that the land they occupied did not match their deeds. The court asked whether a party satisfies the requirement of continuous for entire statutory term when they only vacation at the property. Rule A property may be adversely possessed as long as it is continually occupied the months in which it is intended to be used. 4. Continuous for the Entire Statutory Term - Adverse possessor must occupy w/o interruption during the limitations period. A.P. only has to occupy the property continually as would a reasonable and average landowner of the property i. If the property is beach front vacation property, only has to be continually occupied during the summer months ii. Occupation must meet the nature of the property II. Tacking - The process of adding your term of adverse possession onto the term of those that were previously in adverse possession in order to satisfy the adverse term for the statute of limitations by adding the time of terms together. For tacking to be effective: i. Each subsequent grantor and grantee must be in privity of estate ii. Privity of Estate = A mutual or successive relationship to the same right in property as b/t grantor and grantee iii. An erroneous deed description conveying the wrong property will not destroy privity of estate as long as there is a good faith belief that the property in question is actually what is being conveyed C. By Gift There are three elements required to give a gift inter vivos (between the living), while there are four elements required for gifts causas mortis (gift on the occasion of death). Newman v. Bost (NC. 1898) - , the housekeeper of the deceased, files suit against the administrator of the deceaseds estate, claiming the had converted items that the deceased had gifted to her in contemplation of his death. The court asked whether property could be given as a gift causa mortis when the donor did not manually hand over the property or put his intentions in writing. Rule - To constitute a donatio causo mortis an intention to make the gift and a delivery of the thing given are both necessary. However, if an item can be manually delivered, then it must be manually delivered. I. Intention Donor must intend at the time to part with his title to the property and his power over it and bestow upon the donee. Must have immediate intent to transfer present ownership interest in something to be valid gift. Full interest must be given at the time the gift is made i. Intent proved through words or language I give vs. I will give I give shows an immediate intent to transfer ii. Gifts do not necessarily have to become possessory immediately, as long as the full ownership interest has been conveyed (Gruen v. Gruen)

II. Delivery - The general rule is that the subject of the gift must be delivered to the recipient in order for the gift to be complete. Modern courts do not really care how the gift is delivered, just look to see if the intent is to make a gift, and dont want to frustrate the intent of the donor with delivery semantics. Traditionally there are three ways to deliver a gift: 1. Manuel Delivery - the preferred form of delivery, but circumstances can render it impractical or impossible. - Common Law - Required manual delivery of all items that were capable of it, no exceptions. No other forms of delivery could substitute if manual delivery was possible - Modern Rule - Relaxing this requirement to allow for symbolic delivery when the object is capable of physical delivery but is impractical to do so. Strict enforcement may frustrate the donors intent. 2. Symbolic Delivery - when actual physical delivery is impossible or impractical, delivery can be accomplished by delivering some object that is symbolic of possession. 3.Constructive Delivery - The giving of something that gives access to the gift when physical delivery is not practical (Such as a key to a car, or house). III. Acceptance - Will be presumed when the gift is of value to the donee. Gruen v. Gruen (NY. 1986) - presents evidence (letters) that his father made a gift of a valuable painting to him on his birthday, but the gift was such that would not take possession of it until his fathers death. The court asked whether a gift of a chattel is valid through inter vivos when a donor gives a gift, in writing, but asks to retain physical possession until he or she dies. Rule As long as the evidence establishes intent to make a present and irrevocable transfer of title or the right of ownership, there is a present transfer of some interest and the gift is effective immediately. IV. Gifts Causa Mortis - These are gifts that are made in the contemplation of impending death, this is the way property was given in place of a will. These gifts are revocable gifts in that the only thing motivating the intent to give the gift is the impending death, if the donor recovers, then the donor may take the gift back. i. The donors expectation of impending death is the fourth element required for gifts made under these circumstances. The reason for this is to deter the practice of people not making a will. ii. Manual delivery is required for all gifts that could be manually handed over. (Newman v. Bost)

IV. Forms of Ownership

A. Present Possessory Interest I. Fee Simple Absolute (FSA) - No future interest is created. Lasts forever and is an entire transfer of the interest that O has. Remains in effect even after the grantees death, is passed down to heirs at the death of grantee. a. Words of Interest Tells to whom the interest is being granted to. i. Common Law - To A and his/her heirs ii. Modern Law - Simply stating to grantee w/o the appropriate language creates a presumption of FSA. b. Words of Limitation - Describes the interest that is conveyed (forever or his/her heirs). i. In common law if the words of limitation, his/her heirs were not present then the interest becomes a life estate. II. Life Estate - Terminates @ the grantees death and property goes where future interest designates. It is freely transferable but buyer/recipient gets a possessory interest lasting only until the death of the original life tenant. Life tenant has a duty to preserve the estate for future interest holders and cannot waste the property a. Words of Interest i. Common Law The default for any other land transfer that did not have specific words of purchase. Otherwise, to A for life. ii. Modern Law To A for life. b. Words of Interest i. Common Law and Modern Law For life III. Fee Tail Today only fee tail can be created in Delaware, Maine, Massachusetts, and Rhode Island. A fee tail is an estate in land created by conveyance to A and the heirs of his body. It is an estate precisely tailored to the desires of the medieval dynasts. Essentially they were created to keep land in the family forever. a. Words of Interest and Limitation i. Common Law and Modern Law to A and the heirs of his body. B. Life Estate and Waste White v. Brown (TN. 1977) - The filed an action against the s alleging that the was vested with fee simple in testatrixs house by terms of the will. The will stated that the was to have the home to live in and not be sold. The s claim that the was merely given a life estate in the home leaving the remainder to go to them under interstate succession. The court asked whether the will of the deceased, minding the rules of construction that favors passing of property in fee simple, clearly evidences intent to convey only a life estate in her home. Rule Unless the words and context in a will clearly convey a life estate, a will should be construed as passing a fee simple absolute. I. Reversion The conveyor retains a reversion in the event that there is no/or possibly could be no future interest holder. Reversions are what O holds at the expiration all naturally terminating estates. II. Remainder The termination of a Life Estate in a remainder to the future interest holder. This is important because Life Tenants (those holding a life estate) cannot destroy the value of the property, but you are allowed to improve it. Future interest holders can sue for waste. In order to

be an effective remainder, the remainder and the prior estate must be created w/in the same instrument (As life estate and Bs remainder must be in the same grant) Woodrick v. Wood (OH. 1994) - is attempting to stop s from tearing down a barn that is on a half of a piece of property in which she has a 25% future interest in. claims that tearing down the barn will be waste and deter the value of the property. The court asked Whether the holder of a remainder interest in a parcel of land may prohibit the life tenant of such property from destroying structures of value on the land even if such removal of those structures would increase the property value. Rule - While at common law anything that altered leased premises in any way constituted waste, under Ohio case law there must be substantial damage to the reversion in order for waste to be actionable. III. Ameliorative Waste The type of waste involved in Woodrick, uses by the tenant that increase rather than decrease the market value of the land. Courts allow these substantial alterations provided they do not diminish the market value. C. Defeasible Estates - Have an indefinite duration b/c they can be cut short, but can also last forever potentially. Today, the primary purpose of defeasible estates is land use control; to a lesser extent they are used to control behavior not related to any particular use of land. They have to a substantial sense been over taken by restrictive covenants. There are three types of defeasible estates: I. Fee Simple Determinable - A fee simple that comes to an end automatically when a specified condition in the grant occurs. (To the Hartford School Board, its successors, and assigns, so long as the premises are used for school purposes. a. Words of Limitation and his heirs so/as long as -, while -, during (Duration of time. b. Future Interest Possibility of a reverter, because the conveyor has transferred less than his entire interest in the land when he creates a fee simple determinable. II. Fee Simple Subject to a Condition Subsequent - This allows the grantor to terminate the estate should the condition in the grant be fulfilled but only if the grantor wants to terminate the estate; if the grantor does not exercise the right of entry/power of termination then the grantees estate continues. a. Words of Limitation and his heirs, but if -, however -, provided that -, on condition (Look for the comma, suggests a FSSCS) b. Future Interest Right of Entry, the conveyor actually has to physically re-enter the property to exercise this interest, interest doesnt automatically spring back. III. Fee Simple Subject to Executory Limitations - An interest in a grantee that can be completely divested by a 3rd party other than O, upon the happening of a specified condition w/ in the grant a. Words of Limitation Can be the same language of any other Defeasible Estate, but the important thing is to see if there is a future interest created in a 3rd party. O conveys land to the Hartford School Board, but if it ceases to use the land as a school, to the city library. b. Future Interest No future interest created for the grantor, but there is an executory interest created for a 3rd party. Meaning if a condition occurs that allows a 3rd party to completely interrupt a prior interest before its normal termination. Mahrenholz v. County Board of School Trustees (IL. 1981) - In 1941 W.E. and Jennie Hutton executed a deed in which they conveyed an acre and a half of land to the county under this language: this land is

to be used for school purpose only; otherwise to revert to Grantors herein. After both had passed, their son, Harry, conveyed to the his interest in the property in 1977. The school board had stopped using the land for classes, but instead for storage beginning in 1973. The court asked whether a fee simple determinable is established when the language of the deed gives rights to another party only for a specific purpose. Rule While courts should use a case-by-case basis for determining ambiguous language, the terms in this deed were designed to allow the land to be used for a single purpose, namely, school purpose. This is more indicative of a FSD rather than a FSSCS. i. The term revert to is not entirely limited to only fee simple determinable, courts must look at the intent of the parties involved. D. Future Interests Future interests can be retained by the transferor or the interests can be created in a transferee (3rd Party) I. Interests Retained by the Transferor, 3 types: 1. Reversion - The conveyor retains a reversion in the event that there is no/or possibly could be no future interest holder. Reversions are what O holds at the expiration all naturally terminating estates. (Life Estate, Fee Tail) 2. Possibility of a Reverter - The conveyor has transferred less than his entire interest in the land when he creates a fee simple determinable. (Always comes back) 3. Right of Entry (Power of Termination) - the conveyor actually has to physically reenter the property to exercise this interest, interest doesnt automatically spring back. (FSSCS). II. Interests Created in a Transferee, 3 main types: 1. Vested Remainder A remainder is vested if (1) it is given to an ascertained person AND (2) it is not subject to a condition precedent, meaning it is ready to become possessory whenever and however all preceding estates expire. i. Indefeasibly Vested - It is not subject to any condition precedent. The interest holder is a known, identifiable person. There is no possibility of dilution among class members. (O to A for life, then to B and her heirs. B has an indefeasibly vested remainder in a FSA) ii. Vested Subject to Partial Divestment - The ascertainable element of this is being able to identify at least one person that is going to be able to take possession of the property. The known person is certain to have an interest in the property upon the natural expiration of the preceding estate, but the interest is capable of dilution to yet unknown people. Remainder is created in a class of people. (O to A for life then to As children and their heirs (A has one child, B). B has a vested remainder subject to partial divestment) iii. Vested Remainder Subject to Complete Divestment - A remainder created in a known person, not subject to any condition precedent, but is subject to a condition subsequent, that if it occurs, will completely divest the remainder holder of his interest (O A for life, then to B and his heirs, but if B divorces, then to C and her heirs. B has a vested remainder subject to complete divestment because if he divorces he is divested of all interest.) 2. Contingent Remainder A remainder is contingent if (1) it is given to an unascertainable person, OR (2) it is made contingent upon some even occurring other than the natural termination of the proceeding estates. (O 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. B has a contingent remainder if B does not survive A) 3. Executory Interest - A condition occurs that allows a 3rd party to completely interrupt a prior interest before its normal termination. (FSSEL)

E. Rule Against Perpetuities There are two steps in the applying the rule of perpetuities, (1) determine if the interests is subject to the rule and (2) validate the life by adding 21 years to the lives in being. The rule invalidates any interest not GUARANTEED to vest or terminate within a life in being plus 21 years, even in cases where vesting within the required time is in fact probable; the slightest possibility makes it fail. i. The Fetus Rule A child is considered alive from the moment the child is conceived. ii. The Fertile Octogenarian Any person alive is considered capable of having more children regardless of age or physical difference. iii. Rule of Convenience - to close artificially the membership of a class gift when distribution must be made to a member of such class before the time in which the addition of members has become physically impossible. I. What interests should be examined for the RAP i. Contingent Remainder ii. Executory Interests iii. Vested Remainder Subject to Partial Divestment II. Validated the lives of the people in the grant i. Once you had identified the people (for example, O, A, B, and C) you kill all of them off to see if the interest would vest or fail within 21 years. III. Cross of the offending language and reclassify the interest. IV. Class Gifts, All-or-Nothing Rule - If all interest within the class does not certainly vest w/in 21 years, then no one receives anything in the class V. Example of not violating the rule i. O to A for life, then to B for life if B survives A, then to D and his heirs. (If A were to die immediately then B would take title and if B died then D could take title cause both B and D are alive.) VI. Example of violating the rule i. O to A for life, then to the first child of A (and his heirs) to reach age 30 of that child (A is alive but has no children). (If A died immediately, then none of her unborn children would be able to reach the age of 30 in 21 years. Reclassify to O A for life.)
Possessory Estate Fee Simple Absolute Fee Tail Magic Language And his heirs And the heirs of his body Future Interest: Grantor N/A Future Interest: 3rd Party N/A Alienability of Present Estate Fully Transferable Fully transferable, but B only gets what A had (inter vivos) Fully transferable, but B only gets what A had (inter vivos) Fully Transferable with Condition Attached Fully Transferable with Condition Attached Fully Transferable with Condition Attached Other Modern Law Default Abolished

Reversion

Remainder

Life Estate

For life And his heirs as long as duration of time And his heirs, but if, however, comma And his heirs as long asand her heirs, but if

Reversion

Remainder

Common Law Default Common Law Default Modern Law Default

Fee Simple Determinable Fee Simple Subject to Condition Subsequent Fee Simple Subject to Executory Limitation

Possibility of Reverter

N/A

Right of Entry

N/A

N/A

Executory Interest

N/A

F. Concurrent Interests Refers to situations when two or more persons have concurrent rights of present or future possession. I. Tenants in Common - Each tenant has a separate but undivided interest in the property. Each interest is descendible and can be conveyed by will or deed. No survivorship rights w/ TIC. When 1 person dies, that persons share is passed on to a heir/devisee and that party now shares a TIC with the other tenants equally (Ownership proportions are not increased upon the death of one TIC). Only need one of the four unities mentioned below. i. For example, T devises Blackacre to A and B. A and B are tenants in common. If A conveys his interest to C, B and C are now tenants in common. If B then dies intestate, Bs heir is a tenant in common with C. II. Joint Tenants - Has a right of survivorship. Upon the death of one joint tenant, the others ownership increases proportionally. Final surviving joint tenant owns the entire estate. A joint tenants full interest dies with him. At common law joint tenancy could not be created without the 4 unities. If any of the 4 unities were not satisfied, then a tenancy in common resulted: 1. Time - All joint tenants must receive their interests at the same time. 2. Title - All joint tenants must obtain their title under the same instrument. 3. Interests - All joint tenants must have the same share of an undivided whole and the interest must be for the same duration. 4. Possession - All joint tenants must have a right to possess the whole. i. Joint tenancies are alienable, but it will destroy the joint tenancy. Riddle v. Harmon (CA. 1980) - The Riddles purchased property, taking title as joint tenants. Shortly before she died, retained an attorney to plan her estate. After learning that her land was a joint tenancy (it would pass to her husband), she decided to change this possibility of a future interest. Her lawyer prepared a grant deed and granted to herself an undivided one-half interest in the subject property. The document further stated, "The purpose of this Grant Deed is to terminate those joint tenancies formerly existing between the Grantor, Frances P. Riddle, and Jack C. Riddle, her husband. The court asked whether a joint tenant may unilaterally end a joint tenancy when that joint tenant has died, and then convey that land in a separate document to another party. Yes, intent should prevail. Intended to break interest (one of the 4 requirements). Rule - One joint tenant may unilaterally sever the joint tenancy without the use of an intermediary devise. III. Tenancy by the Entirety - Can only be created in husband and wife. Can only be created if they are married at the time of creation. Much like joint tenancy in that all 4 unities must be satisfied plus a 5th (5th is the unity of marriage). i. Carries right of survivorship - Once one spouse dies the other takes full interest in FSA. ii. May not be freely severed by any member unilaterally like joint tenancy - One spouse acting alone cannot destroy the tenancy by the entirety, must be conveyed jointly. However, divorce will sever the tenancy. iii. Default tenancy for marriage in common law. In modern law, however, some courts prefer a tenancy in common or a joint tenancy as default. iv. Majority Rule - Recognizes the estate but treat both spouses equally. At Common Law the husband and the wife were treated as one legal unit, everything of the wifes became property of the husbands. Since they were 1 unit, the husbands debts became the wifes debts upon the husbands death. Creditors could attach any debt to the surviving wife, since it would be the same as attaching any debts to the husband since they were legally the same person

- Modern Law - Creditors cannot attach the debts of a deceased spouse to the property of the surviving spouse in that the debts are separate. Policy - Dont want to punish the whole family for the debts of one family member. - Minority Rule - Do not recognize the estate (GA). Spiller v. Mackereth (AL. 1976) - and owned a building together in Tuscaloosa. When the main tenant moved out, started to use the building as a warehouse and installed locks on the building. sent a demand letter, asking him to pay half of six months rent or vacate the premises. didnt then parties went to court. Is one tenant in common liable to another tenant in common for back rent when one cotenant uses the whole building for storage and the other cotenant writes a letter demanding he leave or pay back rent? Rule - In absence of an agreement to pay rent or an ouster of a cotenant, a cotenant in possession is not liable to his cotenants for the value of his use and occupation property. i. Again, we emphasize that as long as did not deny access to his cotenants, any activity of possession and occupancy of the building was consistent with his rights of ownership. IV. Ouster Occurs when the cotenant in exclusive control: 1. Prevents the other cotenant from physically using or entering the property (Majority) 2. Ignores a verbal warning from the other cotenant (Minority) G. Marital Interests Out of the medieval period in Europe emerged two different systems of marital property. (1) The English systems fundamental principle is that the husband and wife have separate property; ownership is given to the spouse who acquires the property. (2) The Continental system (community property) rests the notion that husband and wife are a marital partnership and should share their acquests equally. Great differences between these marital property systems remain and cause complications when a couple moves from a common law property state. I. Married Womens Property Act Statute removed the disabilities of coverture and gave a married woman, like a single woman, control over all her property. Such property was her separate property, immune from her husbands debts. The wife also gained control of all earnings outside the home. Sawada v. Endo (HI. 1977) - s transferred their interest in a tenancy by the entirety to their sons after the s were in a car accident with the s. After the conveyance, the s brought suit and won damages totaling almost $25,000. The court asked whether (1) a creditor can attach one spouse debts to their property held in tenancy by the entirety, and if they could, (2) whether it was fraudulent to convey the interest to their sons. The court found that the fraud claim did not matter because Rule - Tenancy by the entirety involves unilateral indestructible rights of survivorship, an inability of one spouse to alienate his interest, and a broad immunity from claims of separate creditors. II. Real Property Theory A person has a sentimental attachment to their home. (This plays a role in Sawada) III. Contingent Right of Survivorship At common law, for all practical purposes, the wife had no right during coverture to the use and enjoyment and exercise of ownership in the marital estate. All she possessed was her contingent right of survivorship.

V. LandlordTenant Law
A. Types of Tenancies The Leasehold Estates is an ownership of a temporary right to land or property in which a lessee or a tenant holds rights of real property by some form of title from a lessor or landlord. I. The Term of Years - Has a fixed period of time (known) and a known end date. This leasehold can be any length as long as there is an identifiable start and end date. They can be determinable or subject to a condition subsequent: i. Determinable - so long as Don uses the home as a smoke house. L to T for 25 years so long as Blackacre is used as a farm. In these cases, L retains a reversion ii. Condition Subsequent - but if Don should stop using the house as a smoke house, then C may terminate the lease. iii. Notice Notice is not required for a Term of Years because the L already knows the end date of the lease, therefore notice is not required. II. The Periodic Tenancy - It is reoccurring leasehold for a recurring period of time (Form month to month, year to year). A periodic tenancy will continue on and on until the L or T gives advance notice to the other party of termination. The death of a landlord or tenant has no effect on the duration of a term of years or periodic tenancy. i. Termination If you fail to give notice in the adequate time, given the specific period that you have, you cannot move out until the next period rolls around and you provide adequate notice then. If you have a year-to-year tenancy, then you would have to stay on another year until you could give proper notice at the 6-month mark. If you fail to give adequate notice, then the lease keeps renewing until you give adequate notice - Notice is needed in periodic tenancy b/c there is no set ending date. Both parties arent up front aware of the ending date. So technically, it could conceivably go on forever ii. Common Law- required at least 6-month notice to terminate a year-to-year periodic tenancy. Required notice is equal to the length of the period if less than a year. If month to month tenancy, then notice must be given 30 days in advance - Notice is only effective at the end of the period, if you give notice on the 15th of April it will not be effective until 30th of May. Garner v. Gerrish (NY. 1984) - leased a property that allowed him to terminate at a date of his own choice. The landlord died so the took over the property and wanted to evict the . The court asked whether a lease that allows the tenant to terminate whenever he wants creates a determinable life tenancy or a tenancy at will. Life tenancy, the court does not want to disturb a parties intent when creating a lease. Rule - A lessor can create a lease in which the lessee possesses the sole power to terminate the lease, which creates a life tenancy in the lessee. i. Commentators generally urge that there is no longer any reason why a lease granting the tenant alone the right to terminate at will, should be converted into a tenancy at will terminable by either party. III. Tenancy at Will Is a leasehold estate for no fixed period of time, duration is uncertain, it will last as long as both parties desire. Termination is bi-lateral in that both parties have the power to terminate at any time i. If only one party has the power to terminate, this is not a tenancy at will, but is a determinable tenancy, unilaterally terminable. Look to the language of the grant to determine if the leasehold is terminable by either party or just one

- Common Law- if power of termination was given to the lessee then it was imputed upon the lessor as well in the event that the document only provided for the lessee to have the power to terminate (Over-ruled in Garner v. Gerrish) ii. Termination - Common Law - no notice required. Modern Law - 30 days required for notice, is treated similar as a periodic tenancy for a month-to-month time span - Landlord terminates by giving notice - Tenant terminates by notice or abandonment IV. Tenancy at Sufferance (Holdovers) - When a T remains in possession after the right to do so has expired. Suppose for example that T holds over after the end date of a one year term, sends L a check for the usual monthly renal payment, and L cashes it. It varies depending on jurisdictions as to what kind of tenancy is created. The tenancy resulting from holding over is usually subject to the same terms and conditions. Tenancy only lasts until the L exercises one of two options: (1) Eviction and recovery of damages for the lost possession or (2) bind T to a new term. Once L clearly elects his method of remedy, the election is irrevocable and L cannot change his mind. i. Common law - Holdover was considered to be one second past the expiration of the original term ii. Modern Law - No holdover if the tenants continued possession is a product of circumstances beyond his control. No holdover if it does not interfere w/ the owners use of the property. Holdover must be voluntary/deliberate iii. Cant elect to evict, then go back and bind to a new term - Common Law - Would treat the new tenancy as the same period as the length of the original period. - Modern Law - Will treat the new tenancy as a month-to-month periodic tenancy. V. The Lease Whether or not an arrangement amounts to a lease matters because leases give rise to the landlord-tenant relationship, which carries with it certain incidents certain rights and duties and liabilities and remedies that do not attach to other relationships. i. Statute of Frauds Commonly, the American statutes provide that leases for more than one year must be in writing. B. Selection of Tenants (Unlawful Discrimination) - The Civil Rights Act of 1968 defines housing discrimination as the refusal to sell or rent a dwelling to any person because of his race, color, religion or national origin. Title VIII of this Act is commonly referred to as the Fair Housing Act of 1968. Later, the disabled and families with children were added to this list. I. Civil Rights Act of 1968 (1) Refusal to sell or rent a dwelling to any person because of his/her race, color, religion, sex, disability, family status or national origin. (2) Discrimination against a person in the terms, conditions or privilege of the sale or rental of a dwelling. (3) Advertising the sale or rental of a dwelling indicating preference of discrimination based on race, color, religion, sex, disability, family status or national origin. (4) Coercing, threatening, intimidating, or interfering with a person's enjoyment or exercise of housing rights based on discriminatory reasons or retaliating against a person or organization that aids or encourages the exercise or enjoyment of fair housing rights. II. Fair Housing Act of 1968 - The primary purpose of the Fair Housing Law of 1968 is to protect the buyer/renter of a dwelling from seller/landlord discrimination. Its primary prohibition makes it unlawful to refuse to sell, rent to, or negotiate with any person because of that person's inclusion in a protected class. See 3603(b) and 3604(a-d) on p. 431-432.

C. The Tenant Who Defaults Two means of defaulting when you are a tenant: I. Tenant In Possession Can default by failing to pay rent or observe some other lease obligation, or by holding over after the termination of the lease, and the landlord wishes to recover possession. Berg v. Wiley (MN. 1978) - landlord leased land to for use as a restaurant. The lease required the tenant to bear all costs of repairs/remodeling and make no changes to the building structure without the s approval. The relationship broke down when the allegedly remodeled the restaurant without the s approval and allegedly operated the restaurant in violation of the state health code, so the changed the locks on the property after had sent a two-week warning letter. The court asked whether s repossession of the premises by locking out was wrongful as a matter of law. Rule - The only lawful means to dispossess a tenant who has not abandoned nor voluntarily surrendered, but who claims possession and rights adverse to those claimed by landlord, is by resort to judicial process. i. Common Law Landlord may rightfully use self-help to retake a leased premises provided (1) the landlord is legally allowed to retake for reasons stated in the lease, and (2) the landlords means of re-entry are peaceable. ii. Modern Law Judicial process is the only means a landlord may retake a leased premise. The rationale is that this will result in fewer violent altercations II. Berg. Wiley involved a commercial lease, but the courts reasoning would appear to apply to all leases, residential and commercial alike. III. Summary Proceedings Today every state provides some form of summary proceedings. Summary proceedings are intended to be just what the name implies a quick and efficient means by which to recover possession (and, in some jurisdictions, rent) after termination of a tenancy. i. Problems The difficulty is that typical summary eviction procedures can be timeconsuming and expensive, even if uncontested. The vast majority of tenants are unrepresented and usually default in these proceedings. IV. Tenant Who Has Abandoned Possession In these situations, the tenant has abandoned the premise prior to the end of tenancy and still owes some back rent. Sommer v. Kridel (NJ. 1977) - signed a two-year lease for an apartment owned by the . paid the security deposit and first months rent. Prior to obtaining the keys to the apartment, the broke off his engagement, became a student and attempted to terminate the lease by letter. The did not attempt to relet the apartment until months later. sued for the full amount due under the two-year lease. The court asked whether landlords have a duty to mitigate costs from a defaulting tenant by attempting to re-let the abandoned apartment. Rule The landlord shall be required to carry the burden of proving that he used reasonable diligence in attempting to re-let the premises. i. In assessing whether the landlord satisfactorily carried his burden, the court shall consider, amongst other facts, whether the landlord, either personally or through an agency, offered or showed the apartment to any prospective tenants, or advertised it in local newspapers. Additionally, the tenant may attempt to rebut such evidence by showing that he proffered suitable tenants who were rejected. V. Landlords Remedies (1) Rent and Damages The landlord may sue for back rent and for damages occasioned by the tenants breach. Absent a state statute a landlord may not sue for damages between the rent reserved in the unexpired lease and for the reasonable rental value of the premise during that time. (2) Security deposits and advanced rent.

VI. Pros to Mitigation - The properties best economic use isnt promoted if the landlord is allowed to let a building sit empty. Property is serving a utility to the economy when it is on the market and being actively leased. Empty buildings encourage vandalism and squatting. C. The Landlords Duties Disputes between landlord and tenant regarding the condition of the premise arise in essentially two ways. First, the tenant may wish to vacate, or to stay but pay less (or no) rent. Second, the tenant (or an invitee of the tenant) might be injured by allegedly defective premises and claim damages against the landlord in tort. Reste Realty Corp. v. Cooper (NJ. 1969) - leased from the the bottom floor of a building for commercial use, for a term of five years. One year after signing the first lease, signed a second lease giving her more of the bottom floor. The driveway was not part of the s leasehold. Whenever it rained, the water ran off into the s office space. s management was aware of the problem and promised to fix it. When the manager died, the new management paid no attention to s request. sent a notice of vacation and sued to recover rent for the unexpired term of the lease. The court asked whether the covenant of quiet enjoyment was breached by the landlord and thus gave the tenant the remedy of constructive eviction. Rule Any act or omission of the landlord or of anyone who acts under authority or legal right from the landlord, or of someone having superior title to that of the landlord, which renders the premises substantially unsuitable for the purpose of which they are leased, or which seriously interferes with the beneficial enjoyment of the premises, is a breach of the covenant of quiet enjoyment and constitutes a constructive eviction of the tenant. I. Quiet Enjoyment Is a right to the undisturbed use and enjoyment of real property by a tenant or landowner. This covenant is implied if it is not expressly written into the lease. If the landlord substantially interferes with the tenants use and enjoyment of the leased property, so much so that the intended purposes of the tenants occupation are frustrated, a constructive eviction has occurred. i. Waiver A tenant may waive their of constructive eviction if they give notice but remain on the premises or do not meet one of the 4 elements below in some other way. II. Constructive Eviction Is the tenants defense to a breach of the implied covenant of quiet enjoyment. There are four elements to constructive eviction: (1.) Landlord breaches an express or implied promise that he included in the lease or breaches a duty owed to the tenant - Landlord promises to provide air, heat, running water etc. - Landlords conduct doesnt have to be intentionally wrong, it is the effect on the tenant that we care about - With 3rd party interference, landlord has no responsibility over 3rd parties that he cannot control that may compromise quiet enjoyment - With 3rd parties that are tenants of the same landlord, they are responsible in that he has control over which he picks to put in his properties (2.) The breach must substantially or fundamentally interfere with the tenants use of the premises. Meaning that the property must be rendered unsuitable for occupancy (3.) The tenant must completely vacate within a reasonable amount of time. Meaning that the tenant cannot press a constructive eviction claim and maintain control of the premises. Furthermore, the reasonableness of the time that the tenant takes to vacate will turn on the circumstances of each case (4.) Tenant gives landlord timely notice of the defect and gives landlord a reasonable amount of time to repair the defect

Hilder v. St. Peter (VT. 1984) - moves into an apartment and runs into broken windows, water leakage, falling ceiling paneling, stopped up toilets, no lights, no heat, bad odors and more. does not vacate the premises but continues living in the unit despite all of the hazardous and undesirable living conditions. promises to fix each of the problems but never does. sues for a refund of rent based on the implied warranty if habitability. The court asked whether a tenant is entitled a rent refund if the implied warranty of habitability is breached and they do not vacate the premises. Rule In the rental of any residential dwelling unit an implied warranty exists in the lease, that the landlord will deliver over and maintain, throughout the period of the tenancy, premises that are safe, clean and fit for human habitation. III. Warranty of Habitability In common law, landlords only owed a duty to allow the tenants to inspect the property before leasing. Now a landlord owes a duty to upkeep all essential facilities on his properties. The majority view is to have the legislature pass a statute that would make a WOH implied in all leases; however, the minority view (modern trend) is to have the WOH implied in all leases. There are essentially two elements a tenant must show: 1. The landlord had notice of the previously unknown defect and failed, within a reasonable amount of time, to repair it; and 2. The defect, affecting habitability, existed during the time for which rent was withheld. - How do you know which Defects constitute a breach of warranty? 1. Look to the building codes to see if there is prima facie evidence that the premises is uninhabitable 2. Look to statute regulations 3. If there is any hazard to the Ts health or safety IV. Tenants Remedies in the Event of a Breach Four types: 1. Do not have to leave the premises because you are not seeking to escape rent liability altogether as. You can withhold rent for the period of the defect as long as the rent withheld coincides with the period of the defect. 2. Rescission - Completely nullifying the contract/lease 3. Reformation - Reworking the lease contract to reduce the rent to reflect the value of the premises with the defect 4. Damages Compensatory - To restore the tenant back position that they were in prior to the defect. Punitive - Will be available if it can be shown that the breach was wanton and willful

V. Transfer of Land Inter vivos land transfer. (Between the living)

A. Introduction The contract will set forth the legal description of the property, its price, provision for earnest money deposit, and the date for the closing or settlement (the transfer of title). Real estate contracts are almost always executor, meaning that the title is not transferred immediately upon signing the agreement, because both buyers and seller must do certain things during the time between the contracts and closing. I. Stages of Land Transfer (1) Pre-contract (2) Executory Period (3) Closing II. Three Paragraphs Noted in Class 1. Paragraph 5 of Contract Mortgage Contingency 30-day limit if not already prequalified. 2. Paragraph 2 of Contract Legal Description Make sure it matches the previous owners. 3. Paragraph 11 of Contract Professional Inspections. B. Duty to Disclose I. Caveat Emptor (common law) A buyer cannot recover for defects unless the seller actively concealed the defects. Buyer takes property as is unless (1) confident or fiduciary relationship exists or (2) some conduct on the part of the seller constitutes active concealment, or (3) partial disclosure. Stambovsky v. Ackley (NY. 1991) bought a house that he later learned used to profit for the on the fact that it paranormal activity occurs within the walls. The seeks recovery of costs and rescission of the contract. The court asked whether nondisclosure constitutes a basis for rescission as a matter of equity when the condition was created by the seller and impairs the value of the home. Rule Where a condition that has been created by the seller materially impairs the value of the contract and is peculiarly within the knowledge of the seller or unlikely to be discovered by a prudent purchaser, nondisclosure constitutes a basis for rescission as a matter of equity. Caveat emptor is not so all-encompassing a doctrine of common law as to render every act of nondisclosure immune from redress, whether legal or equitableWhere fairness and common sense dictate that an exception should be created, the evolution of the law should not be stifled by rigid application of legal maxims. Johnson v. Davis (FL. 1985) purchased a home from in which there was a leaky roof. The knew of the leak, but never mentioned it to . Soon after moving in, the realized there was a leak and seeks to recover damages and rescission of the contract. The court asked whether the seller of a home is liable for failing to disclose material defects when he is aware of those defects. Rule Where the seller of a home knows of facts materially affecting the value of the property which are not readily observable and are not known to the buyer, the seller is under a duty to disclose them to the buyer. II. Policy Reasons (1) Alienability It is bad for property transfer to put the burden on the buyer trying to spend money. (2) Buyers dont know a whole lot about specific characteristics in a house. III. In most states statutes have been enacted requiring the seller to deliver to prospective buyers a written statement disclosing facts about the property. The forms vary, but the required disclosure may include known significant structural defects, soil problems, underground sewage

or storage tanks, presence of hazardous materials, violations of building codes, and encroachments by neighbors. IV. Material Defect Test (1) An objective test (majority) of whether a reasonable person would attach importance to it in deciding to buy, or (2) a subjective test of whether the defect affects the value or desirability of the property to the buyer. V. Alexander v. McKnight (CA) s sued the s for being horrible neighbors and won $24,000 in damages on the theory that, the Alexanders would have to disclose to prospective buyers that the McKnights were difficult neighbors, the Alexanders property would sell for $24,000 less because of the McKnights. VI. Material Defect Hypos - Lead Point CL No duty, ML Must disclose. Electric Wiring CL No duty, ML Must disclose. Rape CL No duty, ML (1) No, (2) Yes Mineral Deposit CL No duty, ML No duty. C. Purchase and Sales Agreement I. Statute of Frauds - A contract for the sale of land must be in writing. If you have more than one document that refers to the same transaction that may be put together to form one document to satisfy the statute. The 3 Ps of the Statue i. Price must be stated ii. Property must be named iii. Parties of the transaction must be clearly named, Buyer and Seller II. Exceptions to the Statute of Frauds Two main exceptions to the Statute of Frauds: 1. Partial Performance Allows the specific enforcement of oral agreements when particular acts have been performed by one of the parties to the agreement. In Jellum world this requires (1) the buyers taking possession, AND (2) substantial payment, or (3) substantial improvement. 2. Estoppel Applies when (1) unconscionable injury would result from denying enforcement of the oral contract (which must be shown through evidence or both parties must admit to it) after (2) one party has been induced by the other seriously to change his position in reliance on the contract. Hickey v. Green (MA. 1982) made a $500 deposit on the s house and in turn sold his current house as well, planning to build on s lot. later told that he no longer wanted to sell. filed a complaint seeking partial performance. The court asked whether this should be granted to a purchaser of land when an oral agreement was reached that led the purchaser to sell their current home. Rule R2(d) Neither taking of possession, payment of property, nor making essential improvements are required for specific performance if the oral agreement is clearly proved. The purchaser must (1) reasonably act in reliance on the problem and (2) injustice can be avoided only by specific performance. i. Two distinct elements enter into the application of the rule: first, the extent to which the evidentiary function of the statutory formalities is fulfilled by the conduct of the parties; second, the reliance of the buyer, providing a compelling substantive basis for relief in addition to the expectations created by the promise. Lohmeyer v. Bower (KS. 1951) purchased a lot with a home on it from the , after contract had been entered into the found out that the lot was in violation of a restrictive covenant imposed by the neighborhood association and furthermore the homes location violated a city-zoning ordinance. The court asked whether (1) a title is un-merchantable when the lot is currently in violation of a city ordinance and a restrictive covenant and if so (2) whether they are such as are expected by the provision

of the K which reads subject however, to all restrictions and easements of record applying to this property. Rule A marketable title to real estate is one that is free from reasonable doubt, and a title is doubtful and unmarketable if it exposes the party holding it to the hazard of litigation. It is the violation of these restrictions that make the title unmarketable, not their mere existence. III. Merchantable Title An implied condition of a contract of sale of land is that the seller must convey to a buyer a marketable title. Marketable title is a title not subject to such reasonable doubts as would create a just apprehension of its validity in the mind of a reasonable, prudent and intelligent person, one which such persons, guided by competent legal advice, would be willing to take and for which they would be willing to pay fair value. Determining marketable title requires two elements that make a title to land marketable: 1. Is the title that is being sold, actually the title that you are receiving? - If FSA is being sold, is that what you are actually receiving? 2. Must be free and clear of all encumbrances. - (1) Any liens that are placed on the property, (2) any easements that come with the property, (3) anything that may burden the property, (4) any existing violations of zoning restrictions IV. Remedies - (1) Buyer must notify seller of defect, (2) seller has up until the closing date to correct the defect, and (3) if the seller does not bring marketable title to the closing date the buyer may: - Rescind the sale contract or receive an abatement to reduce price given the defect. V. Easements and Marketable Title - Majority & Minority Rule on Easements: - Majority Rule - An easement that is open and notorious to the buyer at the moment of the conveyance is not considered an encumbrance that voids the marketability of the title. Buyer cannot claim an open and notorious easement as an encumbrance - Minority Rule - Marketable title means marketable title. Even if the buyer was aware of the easements at the time of purchase, the title is still unmarketable in that the easement potentially could still invite litigation against the buyer should the buyer violate the 3rd partys use of the easement D. The Deed Three main types of Deeds: Brown v. Lober (IL. 1979) bought 80-acres from the s and attempted to exercise their mineral rights on the property, but learned that the s had originally let the party they bought the 80-acres from keep two-thirds of the mineral rights. The court asked whether this was a violation of the covenant of general warranty. Rule - The mere existence of a superior title does not constitute a breach of the covenant of quiet enjoyment when there has been no assertion of adverse title and the land has always been vacant. The s shouldve brought suit for breach of the covenant of seisin within the 10 year statutory period. 1. General Warranty Deed (Buyers Preference) - Warrants the buyer against all defects in title, whether they arose before or after the grantor took title (standard for most jurisdictions). A General Warranty Deed contains six express covenants that it warrants. Three present covenants and three future covenants. i. Present Covenants - These covenants are either breached at the time of the conveyance (the closing) or never breached at all. They are representations of presently existing facts (1.) Covenant of Seisin - The grantor promises that he owns all of what he is conveying in the deed to the grantee. Grantee is entitled a return of his money but

must re-convey the interest back to the grantor. Can covenants of seisin run with the land to each subsequent grantee? - Majority Rule - Present covenants such as the covenant of seisin is violated at the time of the original conveyance from the grantor to the 1st grantee. The covenants die at the end of the statutory period or at the instant of the next conveyance from the 1st grantee to the subsequent grantee. Only the original grantee retains a claim against the grantor for breach. - Minority Rule - Allows present covenants to survive and be assigned through each subsequent conveyance and be held against the estate of the original grantor in the event that the grantor breached the covenant in the original conveyance. Remote grantee may only recover the amount that the original grantee paid in consideration at the time of the breach (2.) Covenant of Right to Convey - The grantor warrants that he has the right to convey the property. The covenant is broken if the grantor lacks the power of authority to covey the interest. A breach of the covenant of seisin is also a simultaneous breach of the covenant of the right to convey in that there is no right to convey when one doesnt own the interest they are conveying (3.) Covenant Against Encumbrances - The grantor warrants that there are no liens, mortgages, easements, or covenants that restrict use upon the title to the property. The covenant is broken if there are any encumbrances that exist at the time of the conveyance, whether or not the grantor is aware of their existence. Some jurisdictions hold that a grantees knowledge of an open and visible encumbrance precludes there being a breach. - If buyers are stuck with what they have at the closing it will encourage them to (1) Find the encumbrances during the executor period or, (2) Negotiate an indemnity clause that ensures that the seller will insure any encumbrance that arises after the closing - Permitting the buyer to rescind for a breach of a covenant after the closing would hamstring the seller by allowing the buyer to choose the manner in which to correct the encumbrance, whereas during the executory period the seller still has some ability to minimize the loss if the buyer rescinds by finding another buyer willing to take the defective title. ii. Future Covenants - Security of the grantees title against future events. Occurs in instances where grantee is constructively evicted or a by breach of WOH. (4.) Covenant of General Warranty - The grantor warrants that he will defend against lawful claims and will compensate the grantee for any loss that that the grantee may sustain by assertion of superior title. (5.) Covenant of Quiet Enjoyment - The grantor warrants that the grantee will not be disturbed in possession and enjoyment of the property by assertion of superior title. Rule - The mere existence of a superior title does not count as a breach of the covenant. Someone actually has to try and exercise their superior title against you before there can be a breach. (6.) Covenant of Further Assurances - The grantor warrants to execute any further instruments to perfect the title conveyed. Frimberger v. Anzellotti (CT. 1991) purchased a parcel of land located on marshland. The assigned the property to him with a general warranty deed. came to realize some construction that the original grantor did before selling it the was in violation of a state statute. brought suit-claiming

damages for breach of warranty against encumbrances. The court asked whether an alleged latent violation of a land use statute or regulation, existing on the land at the time title is conveyed, constitutes an encumbrance such that the conveyance breaches the grantors covenant against encumbrances. Rule They will not qualify as encumbrances. It is very easy during the executory period for the buyer to back out of the agreement if any encumbrance is found, therefore once the closing of the deed has been executed the buyer has passed up his opportunity to do his due diligence to discover any encumbrances that may be latently present and is stuck with what he closes on. Puts buyers on notice that sellers liability under these covenants is limited to the executory period. i. The problem created by the existence of code violations is not one to be resolved by the courts, but is one that can be handled quite easily by the draftsmen of contracts for sale and of deeds. 2. Special Warranty Deed - Warrants against defects that arose during the grantors time of holding the title only. Any defect that arose before the grantors title is not warranted 3. Quitclaim Deed (Sellers Preference) - Contains no warranties of any kind. It simply conveys whatever title the grantor had, if any. If the grantee ends up having nothing, by way of interest, then they cannot bring suit against the grantor in that the grantee didnt guarantee that he was transferring FSA. Rockafellor v. Gray (IO. 1922) purchased a piece of land that had a $500 mortgage attached to it owed to the . After the land was foreclosed on, it was sold in a sheriffs auction to C, then C conveyed it to D, then D conveyed it to H&G, and now is bringing suit attempting to nullify the deed conveyed from the sheriff to C. The court asked whether the covenant of seisin runs with the land so that an action thereon may be maintained by a remote grantee. Rule - Allows present covenants to survive and be assigned through each subsequent conveyance and be held against the estate of the original grantor in the event that the grantor breached the covenant in the original conveyance. Remote grantee may only recover the amount that the original grantee paid in consideration at the time of the breach. (Minority) I. Estoppel By Deed Suppose A conveys land through a general warranty deed to B that A does not own. If A subsequently acquires title to the land, A is estopped to deny that he had title at the time of the deed and passed it to B. Since B could sue A on the warranty, when A later requires title, and compel the delivery of a new conveyance, the law eliminates the necessity of a lawsuit and automatically passes the subsequently acquired title to B. E. Delivery To be effective, a deed must be delivered with the intent that it be presently operative. Delivery is rarely an issue in commercial transactions. Either the grantor hands the deed to the grantee upon receipt of the purchase price (1. Physical Delivery), or the grantor puts the deed in the hands have an assigned 3rd party, escrow agent (2. Conditional Delivery). In the first case, the grantor intends to make an immediate transfer of title. In the second, the grantor intends to transfer title when all conditions are fulfilled. The date in which a grantor delivers to the agent acts as the date it was handed over. Sweeney v. Sweeney (CT. 1940) seeks to keep title of property that claims as his. his in charge of the estate of M. M wrote a deed granting land to the and subsequently had another deed written granting land from to in case the died before the did. held on to both of these deeds. Upon Ms death, seeks to establish that she has title to the land because the second deed between M and was delivered and gave M rights to the land, now passed to his wife, . The court asked whether the 2nd deed was delivered, and if it was, whether the condition claimed to be attached is operative based on intent.

Rule - A conditional delivery requires that the deed be placed in a third person, not a party to the deed, until the event occurs, at which time the deed would be delivered to grantee. Even though this may defeat the grantee's intent in the case at bar, it guards against false claims, fraud and fabrication of evidence. I. Delivery/Deed Transfer Elements Courts will presume delivery with intent to divest when (1) physical transfer of the deed to the grantee, (2) notarial acknowledgment of the deed, or (3) recording of the deed. 3 Elements in delivering a deed: (1.) Intent - Means that the grantor has done or said things that demonstrate the grantors intent to transfer immediately and presently divest himself of any interest in the land. (2.) Delivery - Deed must be delivered to effectuate a transfer in land. Two ways in which the deed may be delivered: i. Actual: Physically placing the deed in the hand of the grantee. In this case it can be said that the grantor intends to make an immediate transfer of interest ii. Conditional: Placing the deed in the hands of a 3rd party escrow to hold until the fulfillment of some condition has been met. The deed may pass to the grantee upon the fulfillment of that condition. If the deed is not placed in the hands of a 3rd party, and is retained by the grantor, it is presumed that the grantor did not intend to divest himself of any interest (3.) Acceptance Assumed in most all cases. Rosengrant v. Rosengrant (OK. 1981) Harold, Jays uncle, wanted to give him his farm when both him and his wife passed away. Harold had a deed made that was to be retrieved by Jay from the bank and recorded on condition of his death. The deed at anytime could have been retrieved by Harold and the deed cancelled before his death. The court asked whether the delivery was legal and thus giving the farm to Jay. Rule Where a grantor delivers a deed under which he reserves a right of retrieval and attaches to that delivery the condition that the deed is to become operative only after his death, the grantors actions are nothing more than an attempt to employ the deed as if it were a will. In these cases, delivery has not taken place. II. Delivery Without Handing Over - Delivery means that the grantor has said or done things that demonstrate their intent to transfer immediately their interest in land to the grantee. If Delivery is conditional, delivery does not require the physical handing over of the grant to the grantee. The key to look for is the grantors intent at the time of said conveyance: - Must look at the evidence between the parties at the time of conveyance to determine if the grantor intended to presently divest himself of all interest or did he retain some interest in the property for the duration of his lifetime? III. Delivery at Death - If the grantor intends to pass full interest to the grantee NOW then there has been a delivery even if possession does not ripen until the grantors death. There can be a present intent to divest oneself of all interest that doesnt become possessory in the grantee until the happening of some condition, such as death. However, if the grantor intends for the full interest in the deed to NOT ripen until the grantors death then no delivery has taken place. To determine if the grantors intent was to make the interest in the deed effective in life or in death must look at: a. Evidence surrounding the transfer - Did the grantor encourage the recording of the deed immediately at conveyance or upon his death. If upon his death, then that suggests that the grantor intended to retain an interest in the land for the duration of his life b. Does other evidence suggest that the grantor has retained the ability to maintain interest throughout his life and not presently divest himself?

F. Title Assurance and the Recording System - When a grantor conveys property more than once, the problem that arises is which grantees interest should prevail? i. Common Law - First in Time - Who ever was the first grantee in time prevails against all the rest in that after the first conveyance the grantor had no interest remaining left to convey ii. Modern Law Recording - Places all conveyances in public record. Pending which recording act is adopted in a particular jurisdiction will determine whose interest prevails as against other grantees; (1) Race Acts, (2) Notice Acts, and (3) Race-Notice Acts - A deed is valid without recording as between the two parties to the transaction, but an unrecorded deed is likely to lose out to a recorded deed if the deeds are from the same grantor for the same property. Luthi v. Evans (KS. 1978) and seek title of a land they both had conveyed to them. argues he has superior title over the land because it was conveyed to him first. argues that the s recording of only a general description of the land with no details what-so-ever is insufficient and does not give constructive notice. The court asked whether a general description of a parcel of land suffices in giving another individual constructive notice. Rule When an assignment of land does not sufficiently describe the property being conveyed, it does not impart constructive notice to a subsequent purchaser. I. Mother Hubbard Clauses Improperly/Vaguely Described property. Mother Hubbard clauses are valid between the grantor and the grantee, however they are not valid as between multiple subsequent BFPs. They are sufficient to pass interest between a grantor/grantee; however they are insufficient to count as any type of notice to a subsequent BFP in a notice jurisdiction. i. A grantee that takes possession by a Mother Hubbard clause can take steps to ensure that his interest is protected in the event of a subsequent BFP, by ensuring that others are put on notice of his prior conveyance by (1) taking actual possession of property, or (2) obtaining a specific description of the property by affidavit or other document. II. How to Search for Title Under the recording acts, a subsequent bona fide purchaser is protected against prior unrecorded interests. To locate a title, the title researcher must consult 2 types of indexes: (1). Grantor-Grantee Index - This is an alphabetical index of grantors and grantees by surname and is maintained by volumes. The volumes will contain the name of grantor/grantee, the other party to the transaction, description of the property, copy of the instrument that is recorded. (2) Tract Index - Every transaction pertaining to a particular parcel is entered into one location instead of chronologically by grantor/grantee. Messersmith v. Smith (ND. 1953) had deed delivered to him first, but recorded after recorded his deed which was delivered after the s deed. The court asked whether the recording of s deed was properly done, thus awarding him the land. Rule - The deposit and recording of an instrument MUST be proved and certified according to the provisions of the law. If done so properly, constructive notice of the execution of such instrument to all purchasers and encumbrances is recorded. III. Race Acts (LA, NC, DE) - As between two grantees to the same property, the earliest to record prevails. It doesnt matter that the 1st person to record had notice of a prior unrecorded conveyance. Often viewed as inequitable in that it permits a later grantee to prevail over a prior known grantee as long as he is the first to record. Pros:

- Limits inquiry of matters that are off the record in that the title researcher is not concerned w/ who knew what in regard to title conveyances. - Most efficient, gives a bright line rule of who owns the property. III. Notice Acts (FL) - A subsequent bona fide purchaser without notice of a prior unrecorded transfer prevails over the prior purchaser who has failed to record and this is true even if the subsequent purchaser has not recorded. Meaning, no conveyance is valid against a subsequent BFP who has no notice of the prior transaction unless the transaction is recorded. A subsequent BFP that is aware either constructively or actually of the prior conveyance doesnt prevail, even if the prior conveyance is unrecorded. Example: - A to B, B fails to record. A to C. C is ignorant of the prior transaction to B. C prevails over B regardless of who may record the deed first. - C lacked knowledge of the prior conveyance to B. - B had not recorded the deed that would have provided constructive notice to C i. Pros (1) Addresses the inequities of allowing a later BFP who knows of a prior conveyance to prevail. (2) Encourages recording on part of first grantee. ii. Cons - Relies on facts not on the record and is hard to prove what someone knows. IV. Race-Notice Acts (Majority) - This protects only those subsequent BFPs who (a) lack notice of the prior conveyance and (b) record before the prior purchaser. This eliminates disputes over which conveyances were first granted and also encourages timely recording. - Recorded Documents that DO provide constructive notice i. Latent Defects A hidden defect that is not apparent on the face of the instrument. Such as a deed that is acknowledged but improperly acknowledged (such as not having the notary physically witness the signing) - Majority Rule - A recorded instrument w/ a latent hidden defect, an instrument that looks good on its face, does not destroy constructive notice of the prior conveyance - Minority Rule - If there is a latent defect in the prior recorded deed, a deed that on its face appears to be good, constructive notice is destroyed. - Recorded Documents that do NOT provide constructive notice i. Inadequate Property Description Mother Hubbard Clause ii. Patent Defects Acknowledgment completely missing iii. Deeds outside the claim of title Late deeds, Wild deeds, early deeds iv. Misspelling of Names - Idem Sonans, which holds that a misspelling that sounds substantially like the correct version of the name, does not apply to give a title researcher constructive notice of a prior transaction to the misspelled name. V. Shelter Rule Occurs when a person who takes from a BFP that is protected by the recording act, is sheltered by the rights of his grantor. Subsequent purchaser basically inherits the protection of his grantors recording act. Example: - O to B then O to A. A records, and then conveys to C. B records and then C records. - C has superior title in that his grantor recorded before B recorded. Therefore C takes the prior recording interest of A and beats Bs recording interest. C is protected by the recording act of A. VI. The Consequences of Recording/Not Recording Recording - Provides constructive notice to all the world of the prior transaction. Even if the subsequent purchaser fails to consult the record he is charged w/ its contents. Also, prevents later purchasers from prevailing. Not

Recording - Grantor can still convey good title to another subsequent BFP until the title is recorded. Board of Education of Minneapolis v. Hughes (MN. 1912) - executed a deed but left the space for his name back until the grantors filled in their information and mailed it back. The court asked whether that deed ever became operative. Rule The execution and delivery of a sealed instrument, complete in all respects except the blank space for the grantee, may be implied in circumstances and he may insert his name when the deed is returned to him. Furthermore, the s deed gave the no notice. i. Recording acts are meant to protect subsequent purchasers. VII. Proper Notice - To be protected under the Notice or Race-Notice Statutes a purchaser must be w/o actual or constructive notice of any prior unrecorded interest at the time the purchaser pays the consideration i. Actual Notice - Real knowledge of the prior unrecorded interest ii. Record (Constructive) Notice - If an instrument is validly and timely recorded then the whole world is put on constructive notice of the prior transaction. VIII. Wild Deeds - Do Wild Deeds impart constructive notice of a prior transaction to a subsequent purchaser? Example, 2005 O A, 2006 A B (B records), 2007 O to C (C records). Does Bs prior recordation give constructive notice to C of a prior transfer of interest in the same property? - No, in that since A failed to record C would have no way of knowing that Bs recordation was a product of Os prior transfer to A. It would simply appear to C that Bs recording was wild and would not reveal that O had previously transferred the interest to A, whom transferred to B, and would not reveal O as a common grantor to C. Guillette v. Daly Dry Wall, Inc. (MA. 1975) - Original grantor who subdivided land restricted land to single-family dwellings, via references in the deeds to a 1967 and 1968 plan. 8 deeds to the lots set out the restrictions or incorporate them by reference. The Guillette deed and one other contains a statement imposing the same restrictions on grantors remaining property. 's purchased three lots from grantor that contained no reference to the deed restrictions but did refer to the 1968 plan. had a title examination and learned of the restrictions, then obtained a building permit for an apartment building. Rule - The grantor may bind his remaining land by writing. Reciprocity of the restriction between the grantor and grantee can be enforced. This means that person takes title subject to the restrictions in the deed to the earlier purchaser. i. A search for such deeds is a task which is not at all impossible. IX. Deeds from a Common Grantor & Notice - Must all deeds that are outside of your chain of title be searched that have been given out by a common grantor to obtain notice of any restrictive covenants or interests that may be imposed on your land but not contained in your deed, but possibly contained in others? - Majority Rule: You do not have to burden yourself by going outside of your chain of title to find every deed given out by a common grantor to the property adjacent to yours to find restrictions that are imposed on your land that were omitted from your deed but included in others. - Minority Rule: Yes you do have to go outside of your chain of title. The assumption is that in a subdivision each grantee is assumed to know that there must be some restrictions placed upon the use of the property by the grantor. This view protects the interests of the others within the subdivision of not having the restrictions violated

X. Notice in the Absence of Full Consideration Rule - If you have not paid full consideration for the title at the time that you receive notice of a prior unrecorded interest then you will not be considered a subsequent BFP and thus not protected by the Notice/Race-Notice recording acts. To be a BFP you must have paid full consideration before you learn of any prior unrecorded interest. Daniels v. Anderson (IL. 1994) Daniels bought two parcels of land and asked to put in the contract of sale a provision that would give him first refusal to buy a third parcel next to the two hed already bought. The contract of sale was never recorded with the provision Daniels requested. 8 years later, another party agreed to pay the owner $60,000 for the third parcel. The party had paid $40,000 before Daniels wife mentioned he had first refusal to buy the lot. After the conversation, the remaining $20,000 was paid off. The court asked whether the party who started making their payments before the conversation with Daniels wife was a BFP. Rule Where a buyer receives notice of an outstanding interest subsequent to paying some, but prior to paying full purchase price, the holder of the outstanding interest is awarded the land and the buyer is reimbursed for the payments they have made. i. There is no bright line rule in these situations. If an individual is a BFP and begins making payments and then learns of another partys interest, courts will use their discretion in these cases. Lewis v. Superior Court (CA. 1994) s purchased a home and had it recorded and indexed a day before a pending lawsuit was recorded against the property. After the lawsuit was recorded, the s paid the remainder of money they owed. The court asked whether a party who has no fully paid for their property are BFP when a notice on the property was filed in between the time they recorded their deed and when they paid for entire property. Rule - If a purchaser has already received title by the time a separate notice is recorded, and was not on constructive notice at the time he received title, he is protected.

VI. Interests Affecting Anothers Land (Easements)

A. Type of Easements - Easements are an interest in land that allows the easement holder to make use of land owned or possessed by another. Doesnt give exclusive possession like FSA, only gives right to use. Easements fall into 5 categories: (1) Positive Easement - A is given the right to enter Bs land. (2) Profit Easement A is given the right to enter Bs land, and remove something. (3) Negative Easement A is given the right to enforce a restriction on the use of Bs land. (4) Real Covenant or ES A is given the right to require B to perform some act on Bs land. (5) Equitable Servitude or RC A is given the right to require B to pay for certain upkeep on land. I. Easements Appurtenant - Benefits the owner of an adjacent parcel of land. The benefited parcel of land is the Dominant Estate. The burdened parcel of land is the Servient Estate. This easement transfers with the dominant estate when the dominant is sold or conveyed. Appurtenant means that it flows with the land and is granted w/ in each subsequent holder of the dominant & servient estate. II. Affirmative/Negative Easements Appurtenant + Affirmative - The right to use the easement to benefit your property in a specified fashion/particular purpose - Negative - The ability of one landowner to prevent another landowner from using his property in a specified way III. Easements in Gross - Easement that delivers a personal benefit rather than a benefit to an adjacent landowner. Not attached to or appurtenant to any parcel of land, which means that unless otherwise intended the easement will not pass to or flow with any subsequent owner in the land. The interest is assignable, however, if the parties intend it to be - Ex: G, owner of Whiteacre grants to R and his assigns the personal right to enter upon and cross Whiteacre for the purposes of reaching the beach The easement is created in favor of R only. If R sells his property to C w/o any assignment of his easement on Whiteacre, then C does not get to enjoy the easement granted to R. - The servient estate is burdened until the dominant estate fails to assign the interest. Upon the interest not being assigned, the easement is dead. - Affirmative/Negative Easements in Gross - Same as above IV. Licenses - Temporary permission to enter the licensors land. They are revocable at any time unless further specified. Licenses and Easements in Gross are sometimes hard to tell apart from language. In the event, courts interpret them as licenses since that are easily revocable and do not tie up the use of property for a long period time like an easement. B. Creation of an Easement I. Express - Affirmative Grant - Expressly granting the easement to a 3rd party in writing. By Reservation - When you sale land that buts up to yours, and that land served to benefit your land when it was held just by you, the need for an easement will be reserved by the grantor upon selling the parcel.

II. By Estoppel - If someone spends money on the easements in reliance of its continued existence, then it is not revocable III. Implied by Prior Existing Use - If O doesnt expressly state the easement in the deed to a grantee at the time of division of a property adjacent to the Os, then it may be implied that the O intended to reserve an easement given Os prior use of the land before the division. IV. By Necessity - If the land was completely landlocked at the time of division then an easement by necessity exists. If, at the time of division an easement by necessity did not exist, then a subsequent landowner does not have an easement by necessity V. By Prescription Four Elements, just like Adverse Possession 1. Actual and Exclusive Use 2. Open and Notorious 3. Continuous for the Statutory Period 4. Adverse Under a Claim of Right/Title - Objective Standard (Majority), Good Faith Standard (GA), Aggressive Trespasser (Minority) Van Sandt v. Royster (KS. 1938) s basement flooded when a pipe busted from the lateral sewer system running from a neighbors house, across s property, and finally s property before connecting to the city sewer line. The court asked whether the lateral sewer system creates an appurtenant easement on s property. Rule If land may be used without an easement, but cannot be used without disproportionate effort and expense, and easement may still be implied in favor of either the grantor or grantee on the basis of necessity alone. VI. Implication by Prior Existing Use - Where property has been divided by a common owner, and prior to the division, one portion of the property has been used in an easement like fashion for the benefit of another part of the property. In Modern Law there are five elements are necessary to determine if an easement was intended to be reserved by the grantor from prior use: 1. Common Owner - A person may devote part of their property to a use that benefits the other part (sewer lines running the length of the property). There is no easement while the property is owned by one person, but before the property is split up, the prior use creates a Quasi Easement, which provides that should the property ever be split up, an easement would be implied to exist given the prior use by the grantor 2. Reasonable Necessity - The easement must be reasonably necessary for the owner of the dominant estate to use and enjoy their property - Common Law - If there was any other way to operate w/o the easement being retained, no matter how costly to the easement holder, then the easement was not considered necessary - Modern Law - Reasonable Necessity means that if it would burden the person holding the easement financially to do away w/ it, even if it is possible to operate w/o it, then the easement will be considered reasonably necessary 3. Continuous Use - Use must be continuous and not sporadic. Continuous only has mean used regularly for the purposes of the easement. Doesnt mean it has to be used everyday. 4. Existing Use at Division - The prior use must actually still exist at the time of division. If it is not, then the parties could not have intended the continued use of something that is nonexistent. 5. Apparent Use - Use doesnt have to be visible (Sewer Lines). Must be discoverable by a reasonable inquiry. - Policy Reasons for Finding Easements by Implication (1) You want to protect the intent of the parties. (2) If you just eliminated the possibility of an easement being retained absent any express language then you may frustrate the grantors original

intentions. (3) Usually you could say that the parties felt as if it was so obvious that an easement was to be retained in most circumstances that they didnt even feel as if they needed to place the language in the deed. Othen v. Rosier (TX. 1950) s land stands in between the and the closest road, thus the only way to get to the highway for the is across s land via a single lane road. The road became flooded by from a dam built on s land. The court asked whether an easement of either necessity or prescription exists in reference to the road that s use to get to the highway. Rule - Implied easement elements: (1) unity of ownership of the alleged dominant and servient estates, (2) the roadway is a necessity, not a mere convenience, and (3) that the necessity existed at the time of severance of the two estates VII. Implication By Necessity - Where the property has been divided by a common owner so as an easement is necessary for the continued enjoyment of the land. Elements of an easement by necessity: 1. Severance - The easement of necessity must arise at the moment the common owner first severs the property. 2. Strict Necessity - The original owners division of the property must land lock the property in question at division if an easement is to be implied by necessity for a later land owner to have. 3. Necessity at the time of conveyance - If, at the time of severance, there is alternative ways to get off of the property, then an easement by necessity does not exist i. Common Owner: The easement must have been created at the time the common owner divided up the property ii. The Easement is Strictly Necessary: This means that at the time of severance, there is absolutely no possible way to come and go from the property in question. If, at the severance, there is any other possible way to get off of the property w/o an easement, then the easement is not necessary. The strict necessity must exist at the time of severance if it is going to exist appurtenant in a later landowner VIII. Easements by Prescription - Easements can be obtained through adverse use for the statutory period. Elements of prescriptive use: 1. Actual/Exclusive Use - You must be the only person using the easement for the purposes in which you are using it for. If you are using it as a walkway and others are using it to haul crops, the you have satisfied the element of exclusivity 2. Open and Notorious Use - Must be used in a manner that would allow discovery upon a reasonable inspection 3. Continuous for the Statutory Period - Using the easement in the nature that it was meant to be used for the statutory period, even if the use is periodic by nature. If the easement moves, even slightly, over the period then that will be considered use of a separate easement 4. Adverse Under a Claim of Right - Use of the land must be adverse and not w/ the permission of the owner. For tacking to be valid, the prior possessors use of the easement must run along the exact same path that the present easement is running along. a. Objective Standard - the state of mind of the adverse user of the easement is irrelevant in regards to their belief in who possess the easement. b. Aggressive Trespasser - Must know that they are using the easement w/ the purpose of making it theirs. c. Good Faith - Must in good faith believe that the easement that they are using is theirs in the 1st place.

Raleigh Avenue Beach v. Atlantis Beach Club (NJ. 2005) - Tony Labrosciano was issued a summons for trespassing when he attempted to cross the s property to the Eastern side of Raleigh Avenue in order to take the most direct route back to his home. , a private beach club, seeks to enjoin Mr. Labrosciano and members of his class from trespassing, entering onto and accessing the Atlantis property. The court asked whether the public has the right to use a 480-foot wide stretch of upland sand beach, both horizontal and vertical access, owned by Atlantis Beach Club, Inc. and operated as a private club. Further, under what circumstances can Atlantis charge members of the public a fee for use and what is the standard to be used for determining the amount of the fee? Rule Four elements are to be weighed when determining whether land is available for public use under the public trust doctrine: (1) Location of the dry sand area in relation to the foreshore, (2) Extent and availability of publicly owned upland sand area, (3) Nature and extent of public demand, and (4) Usage of the upland sand land by the owner. i. If all 4 factors above are met, then public trust extends to all sand (minority view). The majority requires reason public access to claim a public easement. C. Assignment of Easements The benefits and burdens of appurtenant easements pass automatically to assignees of the land to which they are appurtenant, if the parties so intend and the burdened party has notice of the easement. I. Easements Appurtenant - By their very nature are part of the title to the freely transferable dominant estate. II. Private Easements in Gross - Common Law: Non-Commercial easements in gross were not assignable for 2 reasons: (1) When the grantor gives an easement in gross to one person in particular, you may be ok w/ them coming onto the land but there is no guarantee that the grantor would be ok w/ whom the grantee assigns his interest in the easement to coming onto the property. (2) The owner of a non-commercial easement in gross may be hard to locate if it is assignable, and may result in the land being tied up and burdened by an easement for a long period of time - Modern Law: Non-commercial easements in gross can be assigned unless it is specifically against the intent of the parties. III. Commercial Easements in Gross - Common Law & Modern Law - If an EIG is commercial in nature then you want to make sure that it is freely assignable for utilitarian reasons. You want the easement to continue to get the best beneficial use out of the easement so that society may be better benefited by its commercial use. Ex: If GA Power has an EIG to come and cut limbs down off of power lines, if GA Power is bought out, you want the next company to be able to have that easement for social utility purposes. Miller v. Lutheran Camp Association (PA. 1938) owned property on a lake where he and his brother operated a business. The gave his brother interest in profits and property in 1900. In 1929 s brother died and s (who obtained the property through a license from s brothers estate) began using the property and the water. argues that they had no right to transfer interests in 1900. The argues s brother at a minimum gained an easement by prescription over the 29 years. The court asked whether the assignee of an easement in real property has the right to further assign rights in another assignee who takes to those same rights. Rule The One Stock Rule - One of the easement holders alone cannot convey a division in the common easement, must have the approval of the other interest holder(s)

IV. Easements in Gross - Divisibility - Once an EIG has been assigned can it further be divided to allow many people to have access to the easement? - Common Law: Not divisible in interest b/c the land that was being burdened by the use of one person that the easement was assigned to, potentially would be burdened by many - Modern Law: Easements in gross may be divided unless contrary to the intent of the parties creating the easement OR if division would place and undue burden on the servient estate Easements in Gross to Multiple Persons - The One Stock Rule - One of the easement holders alone cannot convey a division in the common easement, must have the approval of the other interest holder(s). If an easement in gross is exclusive and vested in 2 or more persons the traditional rule is that division is permitted. However, the easement must be used as a single unit. Joint user may divide their interest, but the entire use must be conducted as a single unit. -This prevents undue exploitation of resources by one user at the expense of the other. - If the easement must be worked together there is no incentive to over exploit. D. Termination of Easements 4 principle Ways: (1) Expiration, easement created by grant may expire by its own terms. (2) Merger, if the easement holder also acquires title to the servient estate the easement is extinguished in that one cannot own an easement in his or her own property. (3) Actions of the Easement Holder, release, current use, and abandonment, and (4) Cessation of current easement intended use. I. Actions of the Easement Holder Three ways in which the easement holder can terminate the easement all together. 1. Release - Can release unilaterally or with an agreement with the servient estate holder. Generally this must be written to comply with statute of frauds. 2. Is the current use of the easement w/ in the scope of the easements purpose? To determine the scope of an easements use, you should look to the original intent of the parties creating the easement. Easements can expand in terms of use as long as the new use is within the scope of or similar to what the easement creators originally intended the easement to be used for (an easement that was granted for horse and buggy would expand today to include cars) - In fact, you want to promote the expanding use of easements if possible, so that you get the best utilitarian use out of the land, dont want the land being unused if it otherwise could be - However, you must ask if the expanded use is more of a burden on the servient estate. 3. Abandonment - Abandonment is established by the acts of the dominant estate easement holder that clearly and unequivocally establish either a present intent to relinquish the easement or a purpose inconsistent with its further existence. Mere nonuse will not suffice to prove abandonment. You must also act in a way that would suggest your future intent. II. Cessation of Purpose of the Easement - Easements by Necessity, easement dissolves when the easement is no longer necessary. Easements by Estoppel, if the owner of an easement renders the easement in nonuse for a lengthy period, and the servient landowner takes steps to close off

the easement in reliance of that assertion, any steps the easement holder makes to reuse the easement will be estopped. Preseault v. United States (US. 1996) The Rails-to-Trails Act was instituted in 1994 to turn all railroad tracks into nature trails for the community. seeks to terminate the easement that was created by the railroad tracks for railroad activities now that they are used for nature trails. The court asked whether US government had taken s property when they decided to use it for nature trails instead of railroad tracks. Rule An easement can be terminated through the easement holders actions if they abandon the easement or they begin using the easement outside of its intended purpose. i. When a person attempts to say that the use of the easement falls within the intended scope of it, look to see if it is over burdensome as compared to its original intended use.