Property Outline Chapter 1: The Concept of Property I. II. III.

Property- Rights among people concerning things Legal positivism- Property exists only to the extent that it is recognized by the government Five Theories of Property a. Protect First Possession- First come, first serve i. Ex: A parking space on a public street, a seat in a crowded theatre b. Encourage Labor- Each person is entitled to the property produced through his own labor i. Ex: B picks all the nuts off the tree, puts them in a bag, and takes them home to eat. The nuts are now Bs property. Copyrights c. Maximize Societal Happiness- Recognize property in order to maximize the overall happiness of society i. Ex: C owns a nut tree not solely in order to benefit C, but because recognizing Cs title will promote the welfare of all members of society. Like selling nets for sale at a local market d. Ensure Democracy- Property facilitates democracy i. Ex: Recognize Ds ownership of a nut tree and the surrounding land because this provides D with the economic security necessary to make political decisions that serve the common good e. Facilitate Personal Development- Property is necessary for an individuals personal development i. Ex: Es family has owned the nut tree for 4 generations; as a child, E literally grew up under the nut the tree. Thus, E venerates the tree almost as an extension of herself. Under personhood theory, Es rights in the tree should merit special protection. Rented Apt. Right to Transfer- Called alienability, any owner may freely transfer or alienate any of her property to anyone a. Limited for reasons of public policy i. Some property cant be transferred at all 1. Military pensions ii. Some property can be given away but not sold 1. Corneas, organs b. Vital for efficiency in our market economy, because it helps to ensure that property is devoted to its most valuable use i. Ex: A holds title to a large tract of land where he grows potatoes; the land is worth $2,000 per acre for agricultural use. But suppose that As land is worth $50,000 per acre for industrial use, which would benefit society more than farming Right to Exclude- Each owner has a broad right to exclude any other person from his property

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a. If you hold a title to a tract of land you may prevent anyone else from entering upon it. A landowners right to exclude is implemented through the tort doctrine of trespass i. Restatement- One is subject to liability for trespass, irrespective of whether he thereby causes any harm to any legally protected interest of the other, if he intentionally enters land in the possession of the other, or causes a thing or a third person to do so b. Entry made under a privilege is not a trespass. The most common privilege is consent. A privilege may also arise from necessity i. Consent- If O enters Ps land with Ps consent, no trespass has occurred ii. Necessity- A police officer may enter Ss land in hot pursuit of a fleeing thief Right to Use- Sic utere ut alienum non laedas, broadly translated as use your own property in a manner that does not injure another persons propert y a. Principal limitation on an owners right to use is the common law doctrine of nuisance Chapter 2: Owning Real Property

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Adverse Possession- Elements a. Actual Possession- The claimant must physically use the land in the same manner that a reasonable owner would, given its character, location, and nature b. Exclusive Possession- The claimants possession cannot be shared with the owner or with the public in general c. Open and Notorious Possession- The claimants possession must be visible and obvious, so that if the owner made a reasonable inspection of the land, he would become aware of the adverse claim d. Adverse and Hostile Possession- Some find the element is met only if the claimant believes in good faith that he owns the land. In most states, the claimants state of mind is irrelevant. Three tests: i. Bad faith- Possessor must in fact know that the occupied land belongs to someone else and intend to take title ii. Good faith- The possessor must actually believe that he has title iii. No Intent- Under the majority view, if the adverse possessor satisfies all of the other elements of adverse possession, then hostility is established e. Continuous Possession- The claimants possession must be as continuous as a reasonable owners would be, given the character, location, and nature of the land i. For the statutory period- The period for adverse possession ranges from 5 to 40 years, depending on the state. The most common periods are 10, 15, and 20 Adverse Possession- Mechanics a. Adverse possession normally arises in two procedural situations: i. The adverse possessor brings a quiet title action to confirm his title (Gurwit) ii. Raises the doctrine as a defense to an owners lawsuit to recover possession
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b. If A occupies Bs land for the required period and satisfies the adverse possession elements, A automatically acquires title to Bs land when the period ends c. Tacking- Adverse possession periods of two or more successive occupants may be added together to meet the statutory period under the doctrine Vertical Dimensions of Property Rights a. Easement- Nonpossessory right to use land in the possession or ownership of another person, such as the right to use a private road across land owned by another Chapter 3: Owning Personal Property

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Chattel- Property rights in tangible personal property Gift- Immediate transfer of property rights from the donor to the done without any payment or other consideration Finders- Chattels that are found. There are 4 categories for found chattels a. Lost property- Property is lost when the owner unintentionally and involuntarily parts with it b. Mislaid property- Property is mislaid when the owner voluntarily and knowingly places it somewhere , but then unintentionally forgets it c. Abandoned property- Property is abandoned when the owner knowingly relinquishes all right, title, and interest to it d. Treasure trove- Property is treasure trove when the owner concealed it in a hidden location long ago. Treasure trove is usually limited to gold, silver, coins or currency Inter Vivos Gifts- Ordinary gift of personal property that one living person makes to another. a. Generally it cant be revoked. b. The three elements are intent, delivery, and acceptance i. Donative Intent- The donor must intend to make an immediate transfer of property ii. Delivery- The property must be delivered to the done, so that the donor parts with the domination and control iii. Acceptance- The donee must accept the property, although acceptance of a valuable item is usually presumed Gifts Causa Mortis- a gift of personal property made by a living person in contemplation of death a. Elements- Donative intent, delivery, acceptance, and the donors anticipation of imminent death b. Valid gift causa mortis is immediately effective when it is made c. Gift causa mortis is revocable. Can be revoke anytime before their death Chapter 5: Estates and Future Interests

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An estate (a present possessory interest) or future interest (a right to future possession) is usually transferred in one of three ways:

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a. Transfer by Deed- A living person may transfer real property by a deed. The complete transfer is called a conveyance or a grant i. Verbs used are convey or grant ii. Person who makes transfer is the grantor, while the recipient is the grantee b. Transfer by Will- The property of a decedent may be transferred by a will. The completed transfer of real property is called devise i. Verbs used are devise ii. Person whose will contains devise is the testator if male or testatrix if female, while the recipient is the devisee c. Transfer by Intestate Succession- If a person dies without a will, her property will be distributed according to state statutes, usually to their closest living relatives. Completed transfer is called intestate succession i. Verb used is descend ii. Recipient is the heir Fee Simple Absolute- The duration of a fee simple absolute is potentially infinite. The owner has all the rights and 99% of land in the U.S. is held in this estate a. Fee simple is freely alienable (it can be sold or given away during the owners life), devisable (it can be transferred by will at death), and descendible (it can pass by the laws of intestate succession if the owner dies without a will) b. Ex: O conveys to G and her heirs. G receives a fee simple estate. The words of purchase to G denote G as the grantee of the estate. The words of limitation and her heirs identify the estate as a fee simple. Gs heirs receive no interest by this conveyance c. If conveyance doesnt contain words that expressly describe the estate, it is presumed to be a fee simple d. Words of limitation are and his heirs Life Estate- The duration of a life estate is measured by the lifetime of a particular person. When that person dies, the estate terminates a. Holder of a life estate is usually called a life tenant b. Words of limitation are for life c. Pur autre vie- For life of another, when a holder of a life estate conveys their interest to another d. Ex: O conveys to G for as long as G lives. The words of purchase to G denote G as the grantee of the estate. There are no traditional words of limitation in the conveyance; however, the words for as long as G lives identify the grantors intent to create a life estate. Thus, G receives a life estate. Since O carved out a smaller estate from Os larger fee simple, O retains a future interest known as a reversion, which will become possessory when Gs life estate ends e. Life estate is alienable, but not devisable or descendible Fee Tail- duration is determined by the lives of the lineal descendants of a particular person. Conveying a fee tail, an owner could keep land within the family for generations, safeguarding the wealth and prestige of his descendants a. Words of limitation are and the heirs of his body b. Fee tail is almost extinct in the U.S. Can only be created in Delaware, Maine, Massachusetts, and Rhode Island

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c. Ex: O conveys to G and the male heirs of her body. The words of limitation and the male heirs of her body: describe the estate as a fee tail male. Therefore, if G has two sons and one daughter, upon Gs death, the sons receive the fee tail. The estate would then pass only to the males in the sons lines of descendants d. Fee tails is not devisable because it automatically passes to the lineal heir upon the holders death Fee Simple Defeasible- A fee simple that may continue forever or may end upon the occurrence of some future event. There are three types: a. Fee Simple Determinable- a fee simple estate that automatically ends when a certain event or condition occurs, giving the right of possession to the transferor. The potentially infinite duration of the fee simple will be cut short if the event or condition happens i. Words of duration are so long as, while, until, and during ii. Future interest that follows fee simple determinable is always a possibility of reverter 1. Possibility of reverter automatically becomes possessory upon the happening of the stated condition iii. Ex: O conveys to G and her heirs until Alaska secedes from the U.S. 1. G: The words of limitation and her heirs indentify the estate as a fee simple. However, the additional word until, which connotes duration, creates a fee simple determinable. The future interest is held by O, the transferor. The estate will automatically end on the occurrence of a specified event when Alaska secedes 2. O: O retains a possibility of reverter, which automatically becomes a fee simple absolute when Alaska secedes iv. Fee simple determinable is freely alienable, devisable, and descendible. But the durational condition continues to apply to any transferee b. Fee Simple Subject to a Condition Subsequent- a fee simple estate created in a transferee that may be terminated at the election of the transferor when a certain condition or event occurs i. Words of condition are provided that, but if, and on condition that ii. A right of entry always follows a fee simple subject to condition subsequent 1. When the condition occurs, the transferor can elect to re-enter the property, divesting the transferee of possession. 2. However, unlike the fee simple determinable, the estate is NOT automatically terminated iii. Ex: O conveys to G and her heirs but if Alaska secedes from the U.S., then O has the right to re-enter and reclaim the land 1. G: The words but if connote condition, not duration; and O, the transferor holds the future interest. Accordingly, G has a fee simple subject to condition 2. O: O retains a right of entry. Upon the happening of the stated event, O has the right to re-enter and end the estate if he wishes to do so

iv. Fee simple subject to condition subsequent is freely alienable, devisable, and descendible. But, any transferee is bound by the condition c. Fee Simple Subject to Executory Limitation- is a defeasible fee simple estate created in a transferee that is followed by a future interest in another transferee i. Future interest is held by a third party ii. Words of limitation are so long as, while, during, until, provided that, but if, and on condition that iii. Future interest is held by transferee, not the transferor iv. Future interest that follows fee simple subject to an executor limitation is an executory interest v. Ex: O conveys to G and her heirs so long as Alaska does not secede from the U.S., then to M and her heirs 1. G: The words so long as are words of divestment that create a defeasible fee simple in G. Because it is followed by a future interest in a third party (M), G has a fee simple subject to an executory limitation 2. M: Because M is a transferee and her future interest follows a defeasible fee, it is an executory interest. If Alaska secedes, M obtains a fee simple absolute vi. A fee simple subject to an executory limitation is alienable, devisable, and descendible; any transferee is also subject to the condition. An executory interest is freely alienable, devisable, and descendible d. Rule against Perpetuities i. No interest is good unless it must vest, if at all, no later than 21 years after some life in being at the creation of the interest ii. A contingent interest is valid only if you can logically prove that it will either vest or forever fail to vest within the perpetuities period. iii. Only three interests subject to the rule. 1. Contingent remainders 2. Executory interests 3. Vested remainders subject to open iv. 21 years is measured by adding 21 years to the date of death of the last individual who was alive when the interest was created Chapter 6: Concurrent Ownership and Marital Property I. Tenancy in Common- Right to use and possess the whole parcel, even if his fractional interest is smaller than the interests of others a. If O conveys Greenacre to A and B Joint Tenancy- When A dies, As interest in the estate is removed, and B automatically becomes sole owner of Greenacre a. O conveys Greenacre to A and B as joint tenants with right of survivorship b. Created when 4 unities are present: i. Time- Interest must be acquired on the same day ii. Title- Acquire title by the same instrument iii. Interest- There must have the same share in estate
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1. Not 1/3, 2/3 Must be , iv. Possession- Must have equal right to possess, use, and enjoy the whole property Tenancy by the Entirety- Only married couples can hold property this way. Tenancy by the entirety can only be ended by death, divorce, or the agreement of both spouses a. Primary benefit is that in many jurisdictions it allows the holders to partially shield their assets from creditors b. O conveys Greenacre to A and B as tenants by the entirety Partition a. Partitioned in kind- Land is divided between the parties and they can do with it as they please b. Partition by sale- All the land is sold. Must establish 3 principles to overcome partitioned in kind: i. The property cant be conveniently partitioned in kind ii. The interests of one or more of the parties will be promoted by the sale iii. The interests of the other parties will not be prejudiced by the sale Chapter 7: Leasing Real Property

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Prima facie case of discrimination a. He is a member of a protected calls and Defendants knew or suspected that he was b. He applied for and was qualified to rent the property in question c. Defendants rejected his application d. The property remained available thereafter Immutable Rules- Supersede any contrary provisions in the lease Default Rules- They fill in the gaps that the parties did not address in the lease. Parties are free to ignore a default rule in lease negotiations, but they cant evade an immutable rule Civil Rights Act of 1866- p.446 a. All citizens of the U.S. shall have the same right, in every State and Territory, as is enjoyed by white citizens thereof to inherit, purchase, lease, sell, hold, and convey real and personal property Fair Housing Acta. Plaintiff must establish i. He is a member of a protected class and defendant knew or suspected that he was ii. That he applied for and was qualified to rent the property in question iii. Defendants rejected application iv. Property remained available after b. Doesnt apply to 2 types of property i. Rooms or units in dwellings containing living quarters occupied by no more than 4 families living independently of each other, if the owner occupies one of such living quarters as his residence ii. Any single-family house sold or rented by an owner if he owns less than 3 houses and does not use a real estate broker or agent in the sale or rental
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Three aspects of lease negotiations that warrant special attention a. Statute of Frauds i. A lease of real property for a term of more than one year cant be enforced unless it is in writing b. Standard Forms i. Standard rent forms that tenants sign that limit the bargaining that can be done c. Rent Control- Local ordinances may limit the amount of rent that a residential landlord can charge, especially in large cities Constructive Eviction- Wrongful conduct by the landlord that substantially interfered with the tenants beneficial use and enjoyment of leased premises was deemed a constructive eviction. There circumstances, the tenant could vacate the premises and end the lease, thus avoiding liability for future rent a. Implied Covenant of quiet enjoyment- A promise by the landlord that he would not wrongfully interfere with the tenants possession i. Exception to Covenant 1. Actual Eviction- If the landlord physically evicted the tenant, this breached the covenant of quiet enjoyment and ended the lease. 2. Conduct other than actual eviction might so substantially interfere with the tenants possession that it was the functional equivalent of actual eviction Warranty of Habitability- The residential landlord warrants that the leased premises are habitable at the outset of the lease term and will remain so during the course of the tenancy. Not commercial property Transferring the Tenants Interest a. The tenant and the landlord are both entitled to transfer their interests to third parties i. Tenant may transfer her rights by either an assignment or sublease ii. Leases are type of contract so the parties have a privity of contract 1. The lease is also seen as the conveyance of an estate in land, parties have a relationship arising under property law, called privity of estate Surrender- Mutually agree to terminate the lease early Summary- p. 526 a. Landlord-Tenant Revolution- A leasehold was traditionally viewed as an estate in land, governed by property law. In the 1960s, courts began to use contract law to redefine the rights of residential tenants. Today the residential lease is governed by both property law and contract law b. Discrimination- A landlord may refuse to rent to any prospective tenant. But federal and state statutes prohibit the landlord from discrimination based on race, religion, sex, or other factors c. Nonfreehold estates- Law recognize four nonfreehold estates: The terms of years tenancy; the periodic tenancy; the tenancy at will; and the tenancy at sufferance. New types of freehold estates cant be created

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d. Delivery of Possession- The landlord is obligated to deliver the legal right to possession when the lease term begins. Under the majority view, he is also required to deliver physical possession of the premises at the same time e. Condition of Premises- The duty to repair the premises was placed on the tenant. However, if the landlord engages in wrongful conduct that substantially interferes with the tenants use and enjoyment of the premises, the tenant may vacate the premises and terminate the lease under the doctrine of constructive eviction. The modern implied warranty of habitability requires a residential landlord to maintain the premises in habitable condition f. Assignment v. Sublease- The transfer of a tenants entire remaining lease term to a third person is an assignment under the majority test; the transfer of less than the entire term is a sublease. If the lease requires the landlords consent to any transfer by the tenant, but fails to specify a standard for granting consent, the modern trend is that the landlord may withhold consent only if he has a commercially reasonable objection. g. Abandonment- If the tenant abandons the premises, modern law provides that the landlord may either (1) terminate the lease or (2) attempt to mitigate damages and then sue the tenant for any unpaid balance. h. Defenses to Eviction- In general, the landlord may terminate a periodic tenancy for any reason, other than discrimination. But most states protect tenants from retaliatory eviction. In a few states the landlord may evict a tenant only for good cause. i. Method of Eviction- In most states, the landlord can evict the tenant only by using judicial process. Some states still follow the traditional view that the landlord can retake possession by self-help. Hypotheticals a. Page 446- Fair Housing or Civil Rights Act of 1866 b. Page 481- Implied Warranty of Habitability c. Page 491- Who owes rent problems Chapter 8: Selling Real Property

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Selling Property a. Residential Property- Single-family homes or condo units b. Commercial Property- Sale of factories, farms, office buildings, ranches, shopping malls, and undeveloped land Right to Transfer- 3 major steps a. Purchase Contract- The parties negotiate and sign a written purchase contract, and prepare to consummate the transaction b. Closing- The contract is fully performed at the closing; the buyer pays the purchase price, the lender advances the loan funds, and the seller transfers title c. Title Protection- The buyer protects her title through title covenants, a title opinion based on a search of public land records, and/or a title insurance policy During the stage of closing a. The sellers title is examined b. The condition of the property is evaluated
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c. The buyer obtains financing from a bank or other lender d. An escrow is opened to consummate the transaction e. Various documents are prepared, including the deed, mortgage, promissory note, and escrow instructions Statute of Frauds a. An oral agreement for the sale of an interest in real property is not enforceable i. Requirements 1. Essential terms- The essential terms of the contract (usually the identity of the parties, the price, and the property description) must be set forth in writing 2. Writing- The writing can be a formal contract or an informal memorandum 3. Signature- The writing must be signed by the party sought to be bound b. Failure to comply with the Statute of Frauds does not make the contract void; it simply prevents the contract from being enforced Exceptions to Statute of Frauds a. Part Performance- Oral contract for the sale of real property may be enforced if the buyer: i. Takes possession ii. Pays at least part of the purchase price iii. Makes improvements to the property b. Equitable Estoppel- Oral contract may be enforced if: i. One party acts to his detriment in reasonable reliance on anothers oral promise ii. Serious injury would result if enforcement is refused Duty to Disclose a. Caveat emptor- The seller of real property had no duty to disclose defects to the buyer b. Seller was liable only if he: i. Affirmatively misrepresented the condition of the property ii. Actively concealed its defects iii. Owed a fiduciary duty to the buyer c. The seller of residential property is obligated to disclose defects he knows about that: i. Materially affect the value of the property ii. Are not known to or readily discoverable by a buyer Closing a. The point when the purchase contract is performed b. Escrow agent is a neutral third party who receives the purchase price, the deed, the mortgage, the promissory note, and any other documents needed to consummate the transaction c. Typical Closing i. The buyer pays the purchase price to the seller, and executes a mortgage and promissory note for the lender ii. The lender advances the loan funds
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iii. The seller transfers title to the buyer by delivering a deed VIII. The Deed a. A deed is only effective when it is delivered b. In general, the grantor must manifest an intention to immediately transfer title to the grantee The Mortgage a. A promissory note is a contract by which the borrower promises to repay the loan on certain terms and conditions b. A mortgage gives the lender the right to use a specil remedy if the borrower defaults: i. Foreclosure- The lender may sell the property and use the sales proceeds to pay off the loan. c. Borrower is mortgagor d. Lender is mortgagee e. Deficiency Judgment- Process of how bank collects remaining money f. Lien Theory- The mortgage is seen as conveying only a security interest, which gives the mortgagee the right to foreclose on the property, not as the transfer of title Title Assurance- Sale of real property is a sale of title a. 3 methods of title assurance i. Title covenants- the grantor promises in the deed that he has good title to convey ii. Title opinion based on search of public records- An attorney or other professional renders an opinion about the state of title after searching the public land records iii. Title insurance- A title insurance company issues a policy that insures the grantees title b. Prudent buyer will use 2 methods Title Covenants a. Doctrine of Merger- Provides that once the grantee accepted the deed all prior promises were extinguished; the contract was merged into the deed. Grantees began to demand that grantors provide assurances of title in the deed b. Three types of deeds are commonly used today i. General Warranty Deed- The grantor warrants title against all defects, whether they arose before or after he obtained title ii. Special Warranty Deed- Grantor warrants title against all defects that arose after her obtained title iii. Quitclaim Deed- Grantor makes no warranties about title, so the grantee receives only what the grantor has, if anything c. General and Special Warranty Deeds contain specific title covenants i. Covenant of Seisin- A promise that the grantor owns the estate he purports to convey; 1. for example, this covenant is breached if the grantor purports to convey a fee simple but only owns a life estate ii. Covenant of right to convey- Promise that the grantor has the right to convey title;
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1. for example, this covenant is breached if the grantor is a trustee who lacks the authority to transfer title to the trust property iii. Covenant against encumbrances- a promise that there are no encumbrances on the title, other than those expressly listed in the deed; 1. for example, this covenant is breached if there is a prior mortgage on the property iv. Covenant of warranty- a promise that the grantor will defend the grantee against any claim of superior title; 1. for example, if a third party holds better title than the grantee does, the grantor must defend the grantees title v. Covenant of quiet enjoyment- A promise that the grantees possession of the property will not be disturbed by anyone holding superior title; 1. for example, this covenant is breached if the grantee is evicted because of a defect in her title vi. Covenant of further assurances- Promise that the grantor will take all future steps reasonably necessary to cure title defects that existed at closing d. The first 3 covenants are called present covenants. If breached it occurs at the moment the deed is delivered e. The last 3 covenants are known as future covenants. If breached it is after closing Title Based on Search of Public Records a. Title opinion is based on a search of the public land records b. Bona fide purchaser- Acquires title without notice of the adverse claim and pays valuable consideration c. Two systems i. Grantor-grantee index- Every recorded document is indexed in two places: the grantee index and the grantor index 1. Searcher examines all entries in the grantor index under each grantors name from a. The date he received his interest b. Until the date the deed conveying his interest to a grantee was recorded ii. Tract Index- Each parcel of land is assigned a unique identifier, sometimes called a parcel identification number Recording acts a. General Rule, the person whose interest was created first prevails i. Exception is bona fide purchaser doctrine- Recording acts create special protection for the subsequent bona fide purchaser, which supersedes the first in time rule b. Primary goal is to protect buyers from unknown adverse claims c. Three basic acts to determine priority between adverse claims i. Race: The purchaser who records first has priority ii. Notice: The subsequent bona fide purchaser has priority iii. Race-notice: The subsequent bona fide purchaser who records first has priority Chain of title problems p. 627
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a. Wild deed- Unable to be captured by the reasonable searcher i. Although the deed is recorded, it is not properly recorded b. Deed recorded to late i. D will not discover Bs interest because the deed was recorded at a point when D is no longer searching under Ss name c. Deed recorded to early i. D will not discover Cs interest because the deed was recorded at a point when D is not looking under Bs name. The deed was recorded too early d. Deed from a common grantor i. C will only look at those conveyances relating to Forestacre (since C is not interested in the state of title of other properties that S owns). Thus, C would not discover the easement since its part of Bs deed relating to Greenacre Summary p. 646 a. Statute of Frauds. To be enforceable, a contract for the sale of land must be in writing, contain the essential terms, and be signed by the party sought to be bound. An oral contract for the sale of land is unenforceable, unless part performance or equitable estoppel can be proven. b. Marketable Title. Every purchase contract contains an implied covenant that the seller will deliver marketable title at the closing, unless the parties agree to a different title standard. Marketable title is title reasonably free from doubt: the seller owns the estate he is selling and there are no encumbrances on the property. As a general rule, private encumbrances make title unmarketable; governmental restrictions do not. c. Equitable Conversion. Traditionally, the law placed the risk of loss during the executory period on the buyer. The modern trend is to assign this risk to the party who is entitled to possession. d. Duty to Disclose. In most jurisdictions, the seller of a single-family home is obligated to disclose known defects that materially affect the value of the property and are not known to or readily discoverable by the buyer. A few states extend the disclosure duty to off-site conditions. e. Delivery. A deed is effective only when delivered. Delivery requires a manifestation of the grantors intent to immediately convey an interest in the property. f. Deed Types. A general warranty deed provides that the grantor is liable for title defects occurring before and during the grantors ownership. A special warranty deed imposes liability only for defects arising during the grantors ownership. A quitclaim deed provides no warranties. g. Deed Warranties. Present covenants are breached, if at all, when the deed is delivered and traditionally did not run with the land to successors. Future covenants are breached only when the grantee is actually or constructively evicted, and do run to successors. h. Recording System. The recording statutes seek to protect the subsequent bona fide purchaser and thereby create a reliable property market. The common law principle of first-in-time controls unless the subsequent purchaser qualifies for protection under the states recording statute.
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i. Types of Recording Acts. There are three types of recording acts: race (first to record gains priority); notice (subsequent bona fide purchaser gains priority); race-notice (subsequent bona fide purchaser who records first gains priority). In notice and race-notice states, the purchaser must have no actual, record, or inquiry notice of the prior interest. j. Chain of Title Problems. Under some circumstances, a recorded deed may not provide record notice. Wild deeds, late-recorded deeds, and earlyrecorded deeds do not provide notice in jurisdictions that require a normal title search. However, in jurisdictions that mandate a more extensive search, laterecorded deeds, early-recorded deeds, and deeds from a common grantor may provide notice. k. Title Insurance. A title insurance policy provides coverage against title defects. However, the policy will contain exclusions and exceptions which reduce the scope of protection Hypotheticals a. Page 555- Duty to Disclose under the majority and Stambovsky approach i. Majority- Not readily discoverable by buyer ii. Stambovsky- Seller didnt create problem b. Page 568- Has delivery occurred? c. Page 624- Who owns the land. Recording problems Race, Notice, Race-notice Chapter 9: Private Land Use Planning

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Communities are regulated by land use restrictions known as covenants, conditions, and restrictions (CC&Rs) Common law principles evolved in three areas to deal with conflicts in land use a. Easements- Land cant be used unless the owner has adequate access to it, which may require an easement across land owned by another. Although most easements are the product of agreement, courts will sometimes impose an easement without the consent of the burdened owner b. Land use restrictions- An owner might agree to restrict the use of his land by creating a real covenant or an equitable servitude. Courts were traditionally hostile to these restrictions due to fear they would impair productive use, but modern law recognizes their value in private land use planning, notably their use in CC&Rs c. Nuisance Law- Nuisance law resolves the comparatively rare situation where one owners use seriously interferes with another owners use. Today nuisance law is less important than in the past. Since the 1920s, zoning laws and other land use regulations have largely taken over its traditional function Restatement a. Merges the easement, the real covenant, and the equitable servitude into one doctrine: the Servitude i. Servitudes are useful devices that people ought to be able to use without artificial constraints Easement- No possessory right to use land of another a. Basic easements
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i. Express easement ii. Implied easement by prior existing use iii. Easement by necessity iv. Prescriptive Easement v. Easement by Estoppel (or irrevocable license) b. Express easements arise only with agreement of the owner whose land is burdened, but the other 4 are imposed as a matter of law without owners agreement c. Easement terminology i. Property- Greenacre, the land benefited by the easement, is called the dominant tenement or dominant land. Bs land, which is burdened by the easement, is the servient tenement or servient land ii. Parties- A, the easement holder, is called the dominant owner. B, the owner of the servient tenement, is the servient owner iii. Appurtenant or in gross- An appurtenant easement benefits the holder in her use of a specific parcel of land, the dominant tenement. As easement is appurtenant because it benefits A in her use of Greenacre. An easement in gross is not connected to the holders use of any particular land; rather, it is personnel to the holder. Most easements are appurtenant iv. Affirmative or negative- An affirmative easement allows the holder to perform an act on the servient land. As easement is affirmative because it allows her to cross Bs property. 1. A negative easement allows the holder to prevent the servient owner from performing an act on the servient land. Most easements are affirmative d. Creating Easements i. Types of express easements 1. Express Easement by grant- This arises when the servient owner grants an easement to the dominant owner 2. Express Easement by reservation- Arises when the dominant owner grants the servient land to the servient owner, but retains or reserves an easement over that property e. A well drafted Easement will: i. Identify the parties ii. Describe the servient land and the dominant land (if any) iii. Describe the exact location of the easement on the servient land iv. State the purposes for which the easement may be used Negative Easement a. Suppose that P holds an easement which allows her to prevent Q from building any structure on Qs land. An easement that entitles the dominant owner to prevent the servient owner from performing an act on the servient land Real Covenant a. A promise concerning the use of land that benefits and burdens both the original parties to the promise and their successors. It is sometimes called a covenant running at law b. Each real covenant has 2 sides
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i. Burden- Duty to perform the promise ii. Benefit- Right to enforce the promise c. 6 elements must be proven for the burden, but only 4 are generally required for benefit i. Compliance with Statute of Frauds- Covenant must be contained in a document that satisfies the Statute of Frauds ii. Intent to Bind Successors- Original parties must intend to bind their successors. Usually found in express language of document iii. Touch and Concern- Must relate to the enjoyment, occupation, or use of the property 1. Promise to utilize property only for commercial purposes meets standard because it limits how the land may be used 2. Purely monetary does not touch and concern iv. Notice- Successor must have notice of the covenant. Requirement is satisfied by actual notice, record notice, or inquiry notice v. Horizontal privity- Concerns relationship between original parties to the promise 1. Mutual Interests- Some states, horizontal privity requires that the original parties have mutual interests in the affected land (e.g. landlord and tenant; cotenants; or owners of the dominant and servient lands for an easement) 2. Successive Interests- Other states, there must be a grantor-grantee relationship between the original parties, so that they have successive interests in the affected land 3. No Requirement- Increasing number of states have abandoned the requirement; this is the modern trend vi. Vertical Privity- Concerns the relationship between an original party to the promise and his successor. Only if successor receives entire estate the original party had Equitable Servitude a. Horizontal and vertical privity not required for the Burden b. Notice, horizontal, and vertical not required for Benefit Restatement Approach a. Combines Real Covenant and Equitable Servitude into one doctrine i. The covenant that runs at law b. A servitude arises when i. The owner of the property to be burdened intends to create a servitude ii. He enters into a contract or conveyance to this effect that satisfies the Statute of Frauds; and iii. The servitude is not arbitrary, unconstitutional, unconscionable, or violative of certain public policies (e.g., it cant unreasonably restrain alienation) Common Interest Communities (CIC) a. CIC- is a planned residential development i. Where all properties are subject to comprehensive private land use restrictions and
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ii. Which is regulated by a homeowners association b. CIC is typically created by a written instrument called a declaration, has 4 basic parts i. Homeowners Association- Establishes the assoc. that will administer the CIC, specifies the associations powers, and provides for an elected board of directors or similar group ii. CC&Rs- Imposes CC&Rs or similar restrictions on all land within the CIC. These restrictions may be enforced as real covenants or equitable servitudes iii. Assessments- Requires all unit owners to pay monetary assessments which finance the operation of the association iv. Ownership Rights- Generally provides that each unit owner holds fee simple absolute in his particular unit, an undivided interest in common area of the CIC (for example, a swimming pool, tennis courts, and meeting rooms), and a membership interest in the association. Alternatively, title to the common area may be held by the assoc. on behalf of the unit owners c. Defenses i. Unreasonableness ii. Abandonment iii. Changed Conditions Nahrstedt Test- p.725 a. Violates public policy if it i. Is Arbitrary, spiteful, or capricious ii. Unreasonably burdens a fundamental constitutional right iii. Imposes an unreasonable restraint on alienation iv. Imposes an unreasonable restraint on trade or competition v. Unconscionable Nuisance a. Private Nuisance- A nontrespassory invasion of anothers interest in the use and enjoyment of land. Most are private b. Public Nuisance- an improper interference with a right common to the public c. Plaintiff in a private nuisance must establish i. Intentional- Defendants conduct is intentional if he acts for the purpose of causing the harm or he knows that the harm is resulting or is substantially certain to result from him conduct ii. Nontrespassory- Must not involve any physical entry onto the land of another. Examples are noise light and odors iii. Unreasonable- States differ 1. Gravity of harm test- Defendants conduct is unreasonable if it causes substantial harm, regardless of the social unity of the conduct 2. Restatement standard- Conduct is unreasonable if the gravity of the harm outweighs the utility of the conduct iv. Substantial interference- Must be a real and appreciable invasion of the plaintiffs interest

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v. Use and enjoyment of land- Defendants conduct must interfere with the use and enjoyment of land. E.g. causing physical damage to the property or personal injury to occupants Summary- p. 766 a. Types of Easements. The law recognizes five basic types of easements: express easement; implied easement by prior existing use; easement by necessity; prescriptive easement; and easement by estoppel (or irrevocable license). b. Scope of Easements. In general, the scope of an express easement depends on the intention of the parties. The manner, frequency, and intensity of the use of an easement may change over time as technology evolves. c. Termination of Easements. An easement may be terminated by abandonment, prescription, and other methods. Abandonment requires both nonuse of the easement and words or conduct manifesting an intention to relinquish it. d. Real Covenants. A real covenant is a promise concerning the use of land that benefits and burdens the original parties to the promise and their successors; the remedy for breach is damages. e. Equitable Servitudes. An equitable servitude is also a promise concerning the use of land that benefits and burdens the original parties to the promise and their successors; the remedy for breach is an injunction f. Common Interest Communities. A common interest community is a private residential development (1) where all properties are subject to comprehensive land use restrictions known as CC&Rs and (2) which is governed by a homeowners association. g. Enforcement of CC&Rs. CC&Rs may be enforced as real covenants or equitable servitudes. Three key defenses to enforcement are unreasonableness, abandonment, and changed conditions. h. Governing the Community. The powers of a homeowners association are exercised by an elected board of directors. Most courts use a standard of reasonableness in reviewing board decisions; some courts apply the more deferential business judgment rule. i. Nuisance Liability. An intentional, nontrespassory, unreasonable, and substantial interference with the use and enjoyment of land is a private nuisance. j. Remedies for Nuisance. The traditional remedy for a nuisance was an injunction. Today courts usually balance the equities to determine if the appropriate remedy is an injunction or damages. Hypotheticals a. Page 726- CC&Rs valid over Nahrstedt Test and Restatement Test Chapter 10: Land Use Regulation

I.

Zoning a. Standard State Zoning Enabling Act- 1922 i. Empowered local governments to adopt zoning ordinances, and ii. Specified the key provisions for an effective ordinance b. Zoning is a 2 step process

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i. City or county would adopt a comprehensive plan that sets forth its general planning goals ii. Enact a specific ordinance to implement that plan Factors for a reasonable amortization period. P. 784 Euclid Test a. Rational basis test- a law is unconstitutional only if it is clearly arbitrary and unreasonable, having no substantial relation to the public health, safety, morals, or general welfare Nonconforming Uses a. A new zoning ordinance will provide that it does not apply to lawful uses that already exist b. Regulates future development, not existing uses c. Can be terminated if i. The structure was destroyed ii. The use was abandoned or discontinued iii. The use was a nuisance iv. The municipality acquired the property through eminent domain, paying fair market value 3 ways to escape a zoning ordinance a. Amendment b. Variance c. Special Exception Zoning Amendment a. Standard- a rezoning decision is valid unless it is clearly arbitrary and unreasonable, having no substantial relation to the public health, safety, morals, or general welfare Variances a. In specific cases such variance from the terms of the ordinance as will not be contrary to the public interest, where, owing to special conditions, a literal enforcement of the provisions of the ordinance will result in unnecessary hardship, and so that the spirit of the ordinance shall be observed and substantial justice done b. Test on page 798 c. 2 types of variances i. Area variance- permits a modification of lot size, setback, height, frontage, density, or similar requirements ii. Use variance- authorizes a type of use that is otherwise prohibited by the zoning ordinance 1. Test p. 804 Special Exception a. Use that is permitted in the zone if certain conditions specified in the zoning ordinance are met b. Typically used to regulate uses that might cause aesthetic, noise, traffic, or other problems in a neighborhood c. Unlike variance, special exception is a use authorized by the ordinance Hypotheticals
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a. Page 779- Would ordinances be constitutional Nahrstedt p.725 chapter 9 p. 17 Civil Rights/Fair Housing Act p. 446 chapter 7 p.7 Assignment/Sublease p. 9 Constructive Eviction/Warrant of habitability p. 463 chapter 7 p. 8 Abatement- a reduction

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