I.

First Possession

TR 01/12 Acquisition of Property by Discovery

 Doctrine of Discovery
o Right to refusal to bargain with native American people
 Thought they were savages and did not have the capacity to own the land and
therefore transfer title

 Doctrine of Conquest
o If you win the war, can take over the land and gain title from everything from Britain
(including right of land from natives)

 Chain of Title: U.S. got the title of the land through the revolution (England ---U.S.)

Johnson v. M’Intosh
Title: gives you a legal right to take possession
Facts
 The plaintiff Johnson had purchased land from the Piankeshaw Indians and he brought this suit in
court against the defendant M’Intosh seeking an ejection since M’Intosh was granted some of his
land from the United States.
 The court found for M’Intosh and Johnson appealed to the Supreme Ct.
Issue
Whether the title given from the Indians to a private individual (plaintiff) can be recognized in the Courts
of the U.S.?
Holding
The Indians did not have a right to give title since that power was only vested with those who made
discovery of the land.

Rule
 Discovery gives right to title to the government.
 Land title transfers are invalid if not made by the original government at that moment

Reasoning
- Discovery of land brings with it the right to obtain title either by purchase or conquest, subject to
the Indians’ right of occupancy.
- The treaty ending the American Revolutionary War transferred sovereignty and power of the
lands under such transfers from the British to the United States.

T 01/24 Acquisition of Property by Capture or Creation

 Acquisition by Capture

- Pierson v. Post: Must wound or capture to take possession and become rightful owner
o Facts: Post (plaintiff) was hunting a fox and Pierson (defendant), seeing this, captured
and killed the same fox.

- Ghen v. Rich: Custom will inform law on what to do; applicable to entire industry
 o Facts:
 The plaintiff was involved in this whale hunting business for a while and killed a
fin-back one morning, which sunk and came to shore the next few mornings.
 Ellis found the whale instead of sending word to Provincetown and sold the
whale at an auction to the defendant who harvested the bubbler and oil from the
whale
 The plaintiff sued to recover
 The custom of the Cape Cod area at the time of this case was such that a person
who finds the body of a fin-back whale sends word to Provincetown, and the
whaler sends someone to the whale to remove the blubber. .

o Issue:
 Whether the defendant acquired a property over the whale when he found the
dead well or if customary practice of killing and securing a well in accordance
with custom establishes a property right

- Keeble v. Hickeringill: Cannot maliciously interfere with trade; first possession is yours if
someone interferes
o Facts:
 Keeble getting ready to ponce on ducks to sell to market and D. comes with a
gun so the duck can go onto D. pond

 Acquisition by Creation

 International News Service v. Associated Press: news itself does not create a property right; the
collection and labor creates some property

o Rights in news: you don’t create the news, just report it (INS v. AP)
 Have quasi property rights against competitor
 Have no rights vs. the public

 Cheney Brothers v. Doris Silk Corp.: Unless the common law or statute expressly states
otherwise, a man’s property interest is limited to physical items, which others are free to copy.

o Imitation: its not prohibited (Cheney Brothers v. Doris Silk)

 Policy: prevent monopolies, there are other remedies (patents, etc)

TR 01/26 Creation (continued)/Right to Exclude

 Property in One’s Persona

White v. Samsung Electronics America, Inc.

Issue: Sued Samsung for a robot Ad with a robot wearing a wig and dress on
White: alleged Samsung infringed upon her right of publicity by “appropriating” her “identity” (Wheel of
Fortune)
o Publicity: protection of your image/likeness/voice (White v. Samsung)
PR: How to balance IP law while protecting rights?
PR: This is a statutory right to publicity case
PR: If you are a public figure, you can be parodied

 Property in One’s Person

Moore v. Regents of UC
Facts
 The doctor removed his spleen with his consent but he was unaware of the reason
and interest
 Unaware of the cell line and money
 Moore cause of action: conversion

Holding: He does not have a claim for conversion

 The ct. does not want to expand on conversion right due to policy issues
 Would be a deterrence for medical research
PR: Dominion is the main point of the case
 Court below said you do have a property right to your own body: Dominion
(right to use, control, dispose)

 Locke’s labor theory: every man has a property in his own person
 Conversion: wrongful exercise of ownership rights over the person
 Doctrine of Conversion: the deprivation of another's right to use or possess personal property

 To establish a Conversion cause of action:

 1) must be actual interference with ownership or right of possession
 2) over personal property
 3) that you own and intend to continue owning (remember bodyparts)
o Property Types
 Copyrights: typ. 70 years after death
 Protects ideas, facts cannot receive copyrights but compilations can.
 Must be original but need not be novel
 Must be in writing if an idea
 Patents: 20 years from the date of original application
 Novel, useful, non-obvious
 Design patents: ornamental only
 Trademark: words/symbols indicating the source of a product or service

 PR: What is property?

 Property refers to rights and relationships between people with respect of things
 Property is a collection of rights, not just one right
 Property is not a thing

 Property Bundle of Rights

1. Possess
2. Use: easements
3. Exclude:
o Can’t exclude government if they have a reason to be there
o Not the same for private parties
4. Dispose
 5. Include or Transfer:

 One or more of these rights will be in play in our cases

 These rights can be taken away by:
 Government
 You can curtail (stopped for a while) one of these rights but doesn’t take away the person’s right

 Right to Exclude

o Cannot use land to the detriment of your neighbors

o Can’t deny people on your land rights they have (ex: employees and federal aid workers)

State v. Shack
PR:
 Right to property is not absolute, it is relative to the interest to others
 Government had interest in protecting the migrant
 Property not about land; etc---all about relationships between…
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II. Subsequent Possession (aka Subsequent Finder)

T 01/31 Acquisition of Property by Find

Amory v. Delamirie
 The plaintiff was a chimney’s sweeper boy and found a jewel and took it the defendants
(goldsmith) shop.
 Once it was taken to be weighed by the goldsmiths apprentice, he was told the price, he wanted it
back and he was only given the socket without the stones
 PR: the chimney sweeper was the subsequent owner

Rule: The finder has the right of property against all BUT the rightful owner

Hannah v. Peel

Facts
 Peel owned but never occupied the house.
 Hannah lived in the and while there, found a brooch.
 Hannah reported his find to the police and they took it.
 When no owner was found, the police gave the brooch to Peel, who sold it
 Hannah sued for return of the brooch or for its value

Rule: A finder of lost chattel on another’s property has rights to that chattel superior to the rights of
the property owner.

 The brooch was lost inside of Peel’s house

 Peel never physically possessed the house and had no knowledge of the brooch

Types of Property Right of Finder

Mislaid = voluntary + intent to retain Finder has no rights (goes to true owner)
 Lost = involuntary + unintentional (didn’t know Finder has right against everyone but the true
wallet fell) owner
Abandoned = voluntary + intentional Finder is the true owner
(purposefully leave it behind)

 These laws are protecting true owners

 If stolen, that does not acquire possession (just like trespasser)
 Time element in statutes (if something stays there for X amount of time, then it becomes
abandoned) (Statute of limitations provides finality)

McCoy v. Medina
Facts
 Plaintiff found a pocketbook in defendants barbershop with money
 Asked the defendant to keep it and advertise it to see if owner will claim it
 Plaintiff demanded the money thereafter
 Judgement in favor of defendant (barbershop owner)

PR:
 The wallet was not lost, it was mislaid
 Law of Treasure Trove (pg. 110 #4) (England)

Barry Bond Case (baseball)

 PR: Not MLB ball because its intentional (hitting the ball) and abandoned

T 02/07 Adverse Possession to Real Property

Adverse Possession: a doctrine under which a person in possession of land owned by someone else may
acquire valid title to it, so long as certain requirements are met, and the adverse possessor is in
possession for a sufficient period of time, as defined by a statute of limitations.

A. ECHOA: Need to meet all 5 to gain title through adverse possession

1. Exclusive: you (the adverse possessor) are the only person on the land
2. Continuous: continuous for statutory period (use the land as an ordinary person would use it)
 Purpose is someone is on the land and using the land
 SOL starts as soon as person gets on the land and the owner does not want you there
(Ex: If on land for 18 years under GA SOL (20 yrs.), and the owner comes and you’ve been
present continuously, you must still get off land; because haven’t met SOL)

3. Hostile: adverse under a claim of right

 Already assumed so is irrelevant
 Hostile to the owner BUT if the owner welcomes you then you will fail hostility offense

4. Open and Notorious: would a reasonable person have been put on notice that someone is on
their property (ex: building things; cultivating crops)
5. Actual Entry: physical entry on land

Van Valkenburg v. Lutz

Issue: Whether Lutz can claim adverse property based off of erecting/modifying structures on property
that he did not have “under a claim of title”
Holding: No proof to show that the cultivation and improvements of land satisfied the adverse possession
statute to show that there was an “actual” occupation under a claim of title

PR: Charlie’s shack; etc did not count as land improvements

PR: This case had a claim for adverse possession (all 5 met) however the court still ruled against Lutz

B. Color of Title: a claim founded on a written instrument that is defective/invalid

PR: If you buy land and the color of title (ex:deed) is fraud, and you meet all the adverse possession
requirements, the court will still likely find for you

Mannillo v. Gorski: Gorski argues he has Adverse Possession

ECHOA analysis:
 Exclusive but not continuous
 Continuous: SOL 20 years; bought house in 1953; steps changed in 1953 (when SOL started);
suit brought in 1969
 Holding: No claim for adverse possession since Groski failed continuous element but court still
heard case
 Hostile nature: It was a mistake
 Open and Notorious: the owner must know that there is a boundary enthronement to be O&N
o Mannillo did not know of Groski encroachment since it was only 15 in
o If an encroachment on a small area is not immediately apparent, a court cannot presume
that an owner has actual knowledge of it.

a. Squatters anyone who begins to inhabit a piece of property or land without the legal right to do so.
 Some squatters are adverse possessors while others are not
 More frequent in other countries; less rights in U.S.

TR 02/09 Acquisition of Property by Gift

*Personal property: tangible things not *Real property like land

a. Gift requires: Intention; Delivery/Transfer; Acceptance

1) Intention: Oral or Written
2) Deliver/Transfer: (often the problematic requirement)
1. Physical delivery
2. Constructive (key is an example)
3. Symbolic (letter; tug and dirt)
3) Acceptance: presumed unless explicitly rejected

*PR: need any 3 delivery/transfer to satisfy

*PR: need all 3 elements for a gift to be given

b. Inter Vivos (Gifts between living people): Intent must be immediate and irrevocable
Ex: telling someone you’ll give them a gift tomorrow is not immediate, it is a future promise

c. Hypo

1. “I’m going to give you a piece of the Berlin wall as a gift tomorrow”
 - Not a gift until given since it is not immediate; it is a future promise
2. Promise of marriage (but not married yet; a future event)
- Satisfies delivery
- Not a gift
3. Woman accepts engagement---guy dies in car accident---she wants to get the ring but the heirs refuse
- She cannot get the ring because it wasn’t delivered

Newman v. Bost
Issue: Is a gift of “all the personal property in the house” effectively delivered by handing over the keys
to the rooms of the house?

Court: No. A gift of “all the personal property in the house” is not effectively delivered by handing over
the keys to the rooms of the house.
Reasoning: In order to legally effectuate the giving of a gift, physical delivery of the item is required if
appropriate.
 If the item is not present or is too large or heavy for manual delivery, then constructive delivery
will suffice.
 Handing over a set of keys only accomplishes constructive delivery of items that are not in the
house or that are incapable of physical delivery.
The items not meeting these requirements were not actually or constructively delivered to Newman and
remained the property of the estate.

Gruen v. Gruen
 Father (Victor): painting stays with me until I die—Victor dies
o Reserving a life estate is not immediate but ct. nevertheless found for son (The painting was
to be given to Michael upon Victor’s death)
 Ct. Reasoning: Victor retained the right to keep the painting but still gave possession to son
 PR: Property rights are not absolute (the son has property right in painting but dad keeps the
painting while alive)
 Holding: A valid inter vivo (immediate and irrevocable) gift
 PR Takeaway: Allowed to give an inter vivo gift where the giver still lets you reserve a life
estate

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III. Estate in Land – Possessory Estates and Future Interests

T 02/14 Historical Background/Fee Simple and Life Estate/Doctrine of Waste

a. History
 Became common for two or more people to have an interest in the same land (ex: a right
to possession now (present interest) and right to possession later (future interest)
 Estate: property owned/controlled by a person, OR the degree of interest that a person has
in land with respect to the nature of the right, its duration, or its relation to the rights of
others

i. Possessory Estate: Right to possession now (present interest) v. Right to possession later (future
interest)
ii. Possessory = FS (fee simple) or LE (life estate)
iii. Defeasible = 3 types

A. Fee Simple:
 Default and best estate: Can sell/will/exclude
 Lasts forever; no limiting language
 White v. Brown: when the terms of a will are ambiguous, will is determined as a Fee Simple
Absolute
 R---N (grant of my house to Nisha) = FSA

VS.
B. Life Estate:
 Estate that lasts for a person’s lifetime
 MUST INCLUDE THE WORD LIFE
 Cannot restrict alienation (giving it away) NOR condition transfer on fundamental rights
 Grantor always retain a piece (reversion)
o R-N(R to Nisha for duration of her life)
 After Nisha dies---heirs of grantor in of issue if no will
 Line of Succession: Issue—Ancestors---Collaterals---Escheat
1. Issue: ct. will look first to see spouse, if no spouse; kids
2. Ancestors: Parents
3. Collaterals: siblings, nieces, nephews
4. Escheat: goes to the sovereign (state)—then transferred into
FSA

a. Interests:
 Life estate interest: grantee has LE interest; if they die before me, I (the grantor) will still have a
life estate interest
o If I (grantor) give away all interest, I have nothing
o If I (grantor) give away part of my interest, I (grantor) retain something (reversion)
 Future interest: Remainder: future interest in 3rd party

C. Life Estate Pur Autre Vie (another’s life) Hypo:

1. R---H for life
H has a life estate
*Hypo extended: R—H for life, then to K
 H can sell to K = life estate pur autre
(will measure life estate to K by H’s life)
(Factors in valuing one’s life: age, health,etc.)
When H dies, K interest goes away
*Hypo extended: R—H for life, then to K, then K sells to E
Life estate is still valued/measured in the original life of H

PR: Life Estate Pur Autre Vie: This is most often created by the transfer of a Life Estate from one
owner to another -- the estate continues to be measured by the life of the original life tenant.

PR: Alienation Notes

Not allowed to restrict alienation (giving it away)
Ex: I’ll give you the house as long as you don’t give it away
*Any direct restriction/bar on alienation will be invalid
*Cannot condition a transfer on fundamental rights (ex: marriage)
*Conditions allowed are typical (ex: certain period of time the land must be used for a purpose)
*If you see something in grant stating you cannot sell the land (even if it is for a specified period of time) OR a
fundamental right OR an illegal act = invalid
*Primary concern of court is to allow land to circulate

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HYPOS:

Fee Simple:
1. J willed the farm in upstate NY to Yoko, but provided that if Yoko tries to sell the farm during her
lifetime, it goes to Sean.
Breakdown:
J willed the farm in upstate NY to Yoko = fee simple absolute
Estate Yoko has? Fee Simple Absolute
Estate Sean has? Nothing

2. John writes out a deed that says “The farm goes to Yoko”
Estate Yoko has? Fee simple absolute

3. John conveys Blackacre to “Yoko and her heirs.” Yoko dies intestate without issue.
Who owns Blackacre? Ancestors
*Could not say “to Yoko and only Yoko heirs in this family” because with fee absolute giving rights
away.

3. John conveys Blackacre to Yoko. Yoko dies intestate.

Who owns Blackacre? Issue—Ancestors---Collateral---Escheat (run through list)

Life Estate:
1. R---H for life
H has a life estate
*Hypo extended: R—H for life, then to K
H can sell to K = life estate pur autre
(will measure life estate to K by H’s life)
(Factors in valuing one’s life: age, health,etc.)
When H dies, K interest goes away
*Hypo extended: R—H for life, then to K, then K sells to E
 Life estate is still valued/measured in the original life of H
2. O to A for life, then two weeks later, A conveys her interest in Blackacre to B. (O—A, then to B)
Estate A has? Life estate
Interest O has? Reversion (upon the death of A)
If A transfers life estate to B? Life estate pur autre
If B dies?
B dies before A: it goes B’s collateral
A gets nothing back because A gave all interest away (O---A, then to B)

Hypos others asked:

Could A lease life estate for period of years (less than she owns)? Yes
Can you transfer revisionary interest? Yes

*Remainder: future interest in a 3rd party

Grantor (revisionary), Grantee, 3rd party
 (grantor) to A (grantee), then to K (3rd party)
 K is the remainderman/remainderwoman (has a remainder interest)
 A has a life estate interest
 has a revisionary interest

White v. Brown
Rule: When the terms of a will are ambiguous, the court will construe it was passed as a fee simple
absolute.

Key Notes:
 Will says: “to not be sold” that is the void part; cannot restrict alienation
 Dissent: Read Will as a life estate since there was a limitation (Lide did not want White to have
an unlimited estate like fee simple absolute)
 Lide wrote a holographic will (a handwritten will)

Baker v. Weedon – Doctrine of Waste

Marriages:
1. J---two kids---grandchildren
2. J---no kids
3. J and Anna---no kids

Issue: Anna was in distress---the MS highway approached one of J’s grandchildren about judicial sale of
the land----the fight is between Anna and the grandchildren
Question: Can the court take away the grandchildren’s interest?

D. Doctrine of Waste

1. Affirmative Waste: Voluntary, injurious act that substantially reduces value of property
(Ex: polluting farmland)
Ex: R—K for life, then L: K is devaluing the property for someone with a future interest (L)
*Unless depleting resources is the intent of the land (ex: coal mining)

2. Permissive Waste: Failure to act; negligence

(Ex: a structure that you allow to deteriorate)
- Repairs not replacement
- the life tenant pays taxes on the property

3. Ameliorative Waste: When a person changes something on property but it increases the value of the
land
(Ex: Woodrick v. Wood)

Woodrick v. Wood
Facts: Catherine, Patricia (step daughter), Shedrian (both son)
 C has life estate from dead husband
 P has a future interest (remainderwoman)
 C wanted to tear down the barn since it was deteriorating
 The barn was torn down and P objected.

Holding:
 Majority – if material alterations increase market value of remainderman, it is sufficient waste
 Minority – any change (material alterations) is not ok if it constitutes waste

PR: The problem in this case is that P has a sentimental value; courts will only consider market value,
historical value; zoning

Life Estate Hypos:

1. O conveys Blackacre to A for life, then two weeks later, A—B
O: revisionary interest
A: does not hold an interest (because gave away all interest; only hold a piece of the pie with fee
simple absolute)
B: life estate PAV (measured by A’s life)

2. J---G for life

J ---S and heirs
J: reversionary interest
G: life interest
J gives that revisionary interest to S and her heirs so S has now has reversion and J has nothing

*Usually no reversionary interest with three parties

*If S dies before G, nothing happens (J—G for life, J to S)

T 02/21 Leasehold Estates/Defeasible Estates

Defeasible = it will terminate prior to its natural end point upon the occurrence of some specified future
event

A. Defeasible Estates
1. Fee simple determinable
2. Fee simple subject to condition subsequent (FSSCS)
3. Fee simple subject to executory limitation

1. Fee simple determinable (FI: possibility of reverter)

• Fee Simple interest ends automatically when a stated event happens
• Language: “so long as” “while used for” “during” “until” (need durational language)
 • Future Interest: Possibility of Reverter (interest returns to grantor or heirs if stated event
happens)
• Example: O to A so long as the premises are used for residential purposes
 Cannot condition anyone on a fundamental right (ex: marriage) because ct. will strike it out
and read it as a fee simple absolute

2. Fee simple subject to condition subsequent (FI: right of entry)

• Must exercise your right for it to be active
• Language: “but if” “provided, however” “on condition that” (conditional language)
• Future Interest: Right of Entry (Power of Termination **this right must be exercised or it
remains a fee simple)
• Example: O conveys Blackacre to A, his successors and assigns, but if the premises are
not used for residential purposes, the grantor has a right to re-enter and retake the
premises

3. Fee simple subject to executory limitation/interest

• Example: O to A so long as the premises are used for residential purposes, but if the premises
cease to be used for residential purposes, then to B
• Shifting and Springing language only applies to executory interest
- the executory interest cuts short someone else’s interest on condition that it happens
o Exception to EI requiring 3 parties: O “to A, if he becomes a banker on wall Street”
 A holds a springing executory interest in fee simple because the grantor’s interest
will cut off once he’s a banker
 Springing = Two parties; grantor retains something (Ex” A “to Gloria’s children
who reach the age of 30” = A has fee simple subject to Gloria’s children’s
springing executory interest in The Willows
 Springing because A (and his heirs) hold that interest until the event happens

*Adverse possession automatically starts under fee simple determinable but AP stands on when the
person exercises right of entry for FSSCS (ON EXAM)

TR 02/23 Future Interests/Marketability/Rule Against Perpetuity

Marketability: Direct restraints on alienation are void

a. Future Interests: Grantor/Transferor (interests retained by grantor/transferor via giving)

1. Reversion
• interest left in the owner when he/she carves out of the estate a lesser estate. (You’re only giving
away a piece of the pie, not the whole pie)
• Life Estate
2. Possibility of Reverter
 Fee simple determinable
3. Right of Entry
 Fee simple subject to a condition
• When the owner grants/transfers an estate subject to a condition and retains power to terminate
the estate

b. Future Interests: Grantee/Transferee = Remainders

Two Types of Remainders:

1. Vested (ascertained person and not subject to a condition)

Ex: O “to A for life, then to B and her heirs”

PR: Although it is a future interest, it is clear that it WILL happen and we KNOW who it will happen to
(ascertained person) AND no condition on it

PR Ex: R --- M for life, then to E

*M has life estate
*R has nothing
*E has a vested remainder (because we know its Eric and there is no condition)

1a. Vested Remainder Subject to Open

 Know who it is going to be but there could still be more people joining the group
 Ex: R---M for life, then E children and at the time of the grant E has two kids
o We know E two kids are vested, but he could also have more kids later

2. Contingent (unascertained person or contingent on some event happening other than natural
termination of estate)
• Example: O “to A for life, then to A’s eldest daughter (unascertained because
not certain she’ll have daughter”)
– What if A doesn’t have any children though? We don’t know who that
person is
• Example: O “to A for life, then to the heirs of B” B is alive.
– A has life estate
– O has nothing
– B has contingent remainder (because we don’t know who those heirs are,
even though B is alive)
 Possessory Interest/Estate Future Interest (Grantor) Future Interest (Grantee)
Fee Simple Absolute ---- ----
Fee Simple Determinable Possibility of Reverter ----
Fee Simple Subject to Condition Right of Entry ----
Subsequent
Fee Simple Subject to Executory -----
Interest/Limitation
Life Estate Reversion 1. Contingent Remainder
2. Vested Remainder
3. Vested Remainder Subject to
Divestment = Executory Interest
4. Vested Remainder Subject to
Open

Term of Years ““

Video on Chart: T 02/28

Mahrenholz v. County Board of School Trustees

 The Huttons executed a deed transferring 1.5 acres of their 40-acre plot to the Trustees of School District.
 The deed provided that the land “was to be used for school purposes only; otherwise to revert to grantors.
 The school district built the Hutton School on the land, and classes were taught there through then classes were moved
to another location, and the Hutton land was used as a storage facility by the school district.
  The Huttons then conveyed the reversionary interest in the school land to the Jacqmains ---

 the Jacqmains purported to convey their interest in the School land to the Mahrenholzes (plaintiffs).
 Both Hutton were dead by1969. Their heir was Harry Hutton.
 Harry Hutton disclaimed and released any reverter or right of entry for condition broken in favor of the County
Board of School Trustees.
 The Mahrenholzes filed a complaint seeking to quiet title to the Hutton School land in them.

T.C. Holding:
The1941 deed from the Huttons to the school district reserved for the Huttons a fee simple subject to a condition subsequent
followed by a right of reentry.
- In 1977, Harry purported to convey to the Mahrenholzes his interest in the Hutton School land, but the trial court held
that Harry had not successfully regained title of the land because he had not moved to retake the land in 1973 when
the land was no longer used as a school, and thus could not have passed title on to the Mahrenholzes.
-
Holding
Court first looked at the deed’s language in 1941
 The parties agree it was a defeasible fee simple estate (Q. is which one)
o Future interest from this type of estate remaining in grantor is either a reverter (FSD) or right of reentry if
condition is broken (FSSCS)
o Trial ct. properly found that P. couldn’t have acquired any interest in that property from Jacqmains in 1959
(school was still being used for school purposes)

 Whether the P. could’ve acquired interest in from HH

 P argued it was a fee simple determinable followed by a possibility of reverter
o Rules:
o If grantor had a possibility of reverter, he or heirs become owner of property when condition is broken.
 (So maybe P. is arguing that HH was able to transfer that interest since he automatically became the owner of the
property when the condition was broken)

 HH did not take legal action to retake the premises but instead conveyed his interest to P’s in 1977
 He had a right of reentry that cannot be conveyed inter vivos

 Ct conclusion: Based on language and HH actions, grantors intended to create a fee simple determinable
followed by a possibility of reverter
o Huttons wanted to give the land only as long as it was used for school purposes

Mountain Brow Lodge v. Toscano

 Use restrictions are valid limitations on property and will be upheld by the courts.
 It is not an impermissible restraint on alienation to convey land with the intent that it only be used
and enjoyed by a particular person or entity.
 The first portion of the habendum clause (granting the property “for the use and benefit of the”
Mountain Brow Lodge “only”) is such a use restriction, not a restriction on alienation.

 The first half of the conveyance, when considered in context, shows that the Toscanos intended
that the land be used for Lodge purposes.

 Possible that restricting the use of the property for Lodge purposes = the Lodge is prohibited from
alienating the property, courts in similar cases have nonetheless held that, even where use
restrictions effectively prohibit the future transfer of property, the use restrictions remain valid

PR Takeaway:
 Land use restrictions are okay because the land can still circulate
 Direct restrictions are illegal (states cannot sell or transfer)
IV. Co-Ownership and Marital Interests

T 02/28 Common Law Topics (COVID)

Concurrent Interests (Estates): people have an interest in land at the same time

a. Tenants in Common
O to A and B
o Rights:
 A & B have separate but undivided interest in the whole of the property (each co-
tenant owns ind. part)
 Each owns complete possession but not exclusive possession
 Ex: Eric and brother: separate interests in condo but both (undivided) can use it
o Conveyance
 Can convey it via deed or will without having to ask other tenant
 If Eric wants to convey his share, he doesn’t have to ask his brother
o Alienability
 Interest is descendible, devisable, transferable
 Court prefer TIC because of alienability
o No survivorship rights
 Survivorship rights = survivor takes everything once the other dies
 Here if Eric dies, it descends through issue (spouse, heirs, etc.)
o Divorce – TIC remains if held in TIC before
o Courts default tenancy
o Hypo:
 O to A and B---A conveys interest to C--- C and B are tenants in common with each ½
 If B dies, ½ goes to through descend issue like heirs (if two heirs then G (1/4)
and H (1/4)

“Each have a right to possess the whole of the property, their interests are transferrable, if one dies the
other does not gain the whole interest of the property”

b. Joint Tenancy (More restrictive than TIC)

 Requires 4 Unities
 Rights:

o Tenants both have rights and together are regarded as single owner
o Each owns the undivided whole in the property and if one dies, survivorship
 Divorce: severs 4 unities and becomes TIC
 Creation:
o Is explicitly created (so if there’s questions about which tenancy has been created in court
the default is tenancy in common)
*Leasing: can lease without effecting JT: tenant will still retain that ownership
 Survivorship (so if it says “right of survivorship” it is JT)
o Survivorship avoids probate (doesn’t have to go through line of succession)
- Transfer/Conveyance v. Devising:
o Can transfer interest inter vivos, without other tenants knowledge or assent BUT cannot
devise (meaning its not descendible via Will to children; it must pass through
survivorship in the JT)
 o A conveyance or sell will sever JT; will then be TIC----but only for that person. The
remaining people will be in Joint Tenancy still

Advantage of Joint Tenancy over Tenancy in Common: Survivorship (it avoids probate; its automatic)
If R and B have a JT and they BOTH die in crash, it passes to their kids as a TIC

i. Requires Four Unities (TTIP): If any are missing or broken, the joint tenancy is gone and
everything becomes tenants in common
1. Time: interest of each joint tenant mut be acquired or vested at the same time
2. Title: all joint tenants must acquire title by same instrument (never via interstate succession =
without a will)
- If someone doesn’t have a will and stuff goes to kids = tenancy in common interest is created
3. Interest: all must have equal and undivided shares and identical interests measured by duration
(can’t have 75% and 25%)
4. Possession: each must have right to possession of the whole

ii. The Severance of the Joint Tenancy: Sale, Partition, Mortgage

 Sell – 1 tenant may unilaterally sever JT by selling entire interest (even to himself:
but minority need strawman)
 Partition - Can bring action for judicial partition (court decided in-kind or in-
sale)
 Mortgage - When one party of a JT mortgages their share of property
 Lien Theory (majority) = mortgage is a lien and not serious enough to
sever JT
 Title Theory = a mortgage is sufficient to severe joint tenancy

Riddle v. Harmon: Sale

 Mr. and Mrs. Riddle--- Mrs. Riddle wanted to dispose of her interest by will (cannot do that via
Joint Tenancy)
 She grants to herself an undivided ½ interest in property and she’s trying to terminate her joint
tenancy (grant something she already owns = strawman)
 As joint tenant, cannot just give half away
 “Straw man”: create this when grant self an undivided one-half interest in the property before one
dies
 Here she could’ve gave it to a 3rd party then 3rd party gives it back: old rule
 Essentially if you sell your portion, it destroys the joint tenancy
o Ex: if PR wife sells interest in the house to Postman, PR can’t stop her
o Postman now has a Tenant in Common with PR

Rule: If anyone sells their portion, it destroys joint tenancy and it becomes tenancy in common

Delfino: Partition: when owners can’t agree on what to do with land, court will order a partition.
 Delfino’s and Vealencis owned a plot of land as Tenants in Common
 Delfino’s owned undivided 99/144 interest and V. owned undivided 45/144 interest
 V. operated a trash removal business on her land and the Delfinos brought a court action to order
a partition by sale (sale entire parcel) with the proceeds distributed to each party based on their
interest in the land
 V. moved for a partition in kind (court divides property between V. and Delfino’s)
 o She wanted it because her land is smaller, no reason to sell it to make money off it

PR: Would a partition sever Joint Tenancy? Yes, because one of the Unities will be severed.

a. Partition in Kind v. Partition in Sale

Partition in Kind: if tenants in common, then the ct. divides the property
Partition in Sale: sale the property and divide proceeds proportionally

Spiller v. Mackworth: (they were Tenants in Common aka Co-tenants; each have right to possess the
entire parcel and duty to share in expenses and benefits BUT a co-tenant in possession isn’t required to
pay rental income, unless there has been an ouster AND a cotenant not in possession is not entitled to
receive rental income, unless there has been an ouster)
Issue: Whether a cotenant who wasn’t in possession, could prove she was ousted
 Spiller and Mackworth purchased land as cotenants
 Spiller asked to buy Mackworth interest in the land and she refused
 Spiller filed a partition by sale of the co-owned land
 He then began using a building on the land as a warehouse
 Mackworth then sent a letter Spiller demanding he vacate ½ of the building or pay rent to
Mackworth
 Spiller didn’t do either; Mackworth then brought a claim to seek rental income

b. Ouster:
 if cotenant says I don’t want you on the land anymore and that’s when Adverse Possession clock
starts; when one cotenant says you cannot exercise your rights on the property

PR Ex: If I am a cotenant with my brother and my brother decides to rent out a piece of the party to
another person (firework stand), and I usually don’t live on the property, he’s getting rent from the
firework stand, and I try to come back and he says no you must pay rent, do I have to pay rent?
- No because we both have common, undivided interests

PR: What is a possessing cotenant mortgage out a piece of the property?

Harms: Mortgage (JT case)

 Harms and brother J. Harms, owned a house as JT (with survivorship)

 John allowed Sprague to use his JT interest as collateral for the balance due on the mortgage of
Sprague’s new house
 John died, leaving his entire estate to Sprague
 W. Harms sued to quiet title in the property formely owned by him and his brother
 Sprague countered saying he owned the property as TIC with W. Harm subject to a mortgage lien
on his interest

 T.C.: the JT was terminated when J. Harm conveyed mortgage interest to Simmonses (who
Sprague purchased home from); the mortgage survived John’s death and therefore Sprague wins
 COA: reversed; JT was not terminated
 S.C.: Ct. said their a Lien Theory state thus it does not sever

i. Two Theories: Does a mortgage sever a JT or not?

1. Lien Theory (majority): A mortgage is a lien on a property, your not giving anything away; thus a
mortgage will not sever JT
- Lien Theory (minority): Yes, it severs

2. Title Theory: giving an interest away with a title thus yes a title will severe JT; because one of the
Unities is broken (title)

a. Tenancy By the Entirety

 Only created in husband and wife
 Requires the 4 Unities (like JT) plus marriage
 No unilateral conveyance: one person in the marriage cannot give away (unlike TIC and JT)—
both must agree
 Survivorship: surviving tenant has right of survivorship (so dead spouse interest is gone and
surviving spouse is sole owner)
 Divorce terminates tenancy = become TIC
 Not commonly used; (creditors of only 1 spouse cannot touch this tenancy)
 Wills:
o Ex: vacation home is not his property alone thus Rachel is sole owner and not daughter
Vera who he left all property to in will
o Wife Rachel (now owner of home via TBE can either renounce the will or take the
modern elective share = ½ or 1/3 of dead husband property)

Swartzbaugh v. Sampson (benefits and burdens of co-tenancy)

 Husband and wife owned 60 acres as JT (with right of survivorship)
 Mr. S leased a portion of their land to Sampson, so Sampson could build a boxing pavilion (Ms. S
was against this)
 Ms. S sued to evict Sampson and T.C. dismissed her case
 Ct. said the lease was not executed by only one joint tenant (their tenants by entirety)
o “no unilateral conveyance” but it was lease to Sampson

Co-Tenant Rights and Responsibilities

 If A and B are cotenants (TIC) and A (lives on the land) rents out a part, (B lives in Turks and
Caicos), A must share that rental income
 If B is living in a different state, must still be paying land taxes like A
 Repairs: possessing cotenant is responsible for repairs/maintenance unless there is in a
contractual agreement that you both share (absent cotenant has no right to contribution)
 Improvements: the absent cotenant has no right to the contribution; if improve and the sale goes
up then it all goes to that one possessing cotenant
1. Bob has nothing; No unilateral conveyance
2.
- Each owns: Separate, undivided interests as JT (each will have 1/3)
- P sells her interest to C: Turns into a TIC = R (1/3) M(1/3) C(1/3)
- Ross dies: no longer a right of survivorship since it turned into a TIC so his 1/3 will go to his heirs

TR 03/02 Martial Interests and Community Property (COVID)

a. Two Different Types of Concurrent Interests with Marriage

 Medieval England: common law marital interests (separate property)
o Most of the U.S. follows common law principles
 Continental Europe: different system; community property (split 50/50)
o LA, FL, CA, etc. follow community property

Common Law Marital Property = Separate Community Property

Property
- During marriage you are “one flesh” - 50/50
(feme covert = woman covered by the
legal persona of husband)
- Married Women Property Acts: gave - If you’re married, your treated like a team
women legal persona back; can have
individual property
- Sawada v. Endo
- Rationales: Feudalism; Biblical (Adam &
Eve)

A. Separate Property
 Divorce: Equitable Distribution
 Degree dilemma:(In re Marriage of Graham)
o Majority: a degree is NOT property
o Minority (NY): a degree is property
 Reimbursement: alimony
 Death: Elective Share (only applies to property decedent owns at death)
1. Surviving Spouse can renounce (put aside) Will and elect statutory share (1/2 or 1/3)
2. UPC entitles surviving spouse to keep any property devised in Will but that property is
credited against elective share
3. States with dower give surviving spouse option of dower/share

Sawada v. Endo
 A car accident---one party wants $$- Endo’s crashed into Sawada’s
 The Endo’s hold land by “tenancy by the entirety”
o No unilateral conveyance
o Surviving tenancy takes all
o Creditor cannot come after that when after one person
 Endo saying he owes $$ and the Sawada’s are trying to attach his property
  Court said the point of tenancy by entirety is to over protect

 PR: The Sawada’s can go after other Endo assets (cars, etc.)
 Endo’s land is protected by “tenancy by entirety” & is thus off limits
 Nothing illegal about Endo conveying land to his son

A. Termination of Marriage by Divorce (in Common Law)

 What happens when a couple divorces?
o If the property held by spouses is Tenants in Common, there’s no change and can get rid
of your stuff
o If the property held by spouses is Joint Tenancy, one of the unities (the title: you took at
the same time) is severed, therefore Joint Tenancy is separated and becomes Tenants in
Common: wife can sell her half & husband can sell his half

B. No Fault Divorce
 In the U.S. for a while, there wasn’t No Fault Divorce (had to have a reason for divorce) but now
that is irrelevant
 The benefit of Joint Tenancy is the right of survivorship (it stays out of both; allows alienability
of your half of the estate—you can sell it if you want)

i. Factors in Equitable Distribution (still in the sector of common law land)

 If couple divorces, here are the factors that flow into the court’s decision when you equitably
distributing marital assets
 Not a perfect list thus why prenups exists

In re Marriage of Graham
 Ex-wife wanted potential future earnings from husbands MBA degree
 Court said the degree is not property in the state of CO

Elkus v. Elkus
Court held wife’s celebrity status is part of equitable distribution
- Court said it’s irrelevant that it is not a professional license

C. Termination of Marriage by Death of One Spouse

 Common Law
 (Dowery: the gift at beginning of marriage)
 Dower: what the wife retains if she survives the husband
  How much land could the wife expect? 1/3 (traditional common law)
 Modern Elective Share: statutes that give wife either ½ or 1/3 based on state
 Curtesy: if wife died before husband, and they had children, then the wife could retain all the
land

D. Modern Elective Share

 Most U.S. statutes follow modern elective share which is ½ or 1/3 depending on state
 Says you cannot disinherit someone (can’t say I’ll give everything to my nephew and nothing to
my wife---not allowed if married but if divorced it is OK)
 If married and spouse dies, you are entitled to the ½ or 1/3

PR: If the surviving spouse is written out of the will, the surviving spouse must renounce their will (assert
the will) and elect whatever the statutory share is
- If the spouse says nothing, waive it
- Usually will elect the share when whatever they got in Will wasn’t that great

PR Analysis:
1) First what is in probate? What becomes a part of the estate and what does not?
- JT does not become a part of the estate
- Life insurance does not become a part of the estate
- Everything else does

Analysis of Bob’s distribution:

1. State does elective share of ½ of descendants property passing via will or without will (intestate)
2. Bob took out a life insurance policy of $60K payable to wife
- Joan will get $60K life insurance
- life insurance will never go through probate because it immediately goes to the person it should go
to

3. Bob and Joan bought a house worth $60K at his death (via Joint Tenants (w/right of survivorship)
- Joan owns the house (because she’s alive and Bob is dead)
- JT will never go through probate because it immediately goes to the person it should go to
- That’s the whole point of survivorship, avoids probate
4. Bob dies: $120K in total: owning land worth $90K; stocks and bonds worth $20K; $10K in savings
account
- $120K is in probate
- Due to elective share, Joan will get ½ of 120K
- Eliza will get the other 1/2

5. Bob bequeaths all of his estate to daughter Eliza, via a previous marriage to Nancy

B. Community Property
 10 States (like LA, CA)
 Key: Earning of each spouse during marriage should be owned equally
 Property Acquired by the spouse before marriage?
 Property Acquired during marriage as a gift or inheritance?
o PR: the question is does it fall within the 50/50?
 Divorce: Equal division of community

Community Property v. Common Law Concurrent Interests

 Community Property only exist between husband and wife
 Community Property cannot be unilaterally conveyed (one party can’t just sell something)
 At death, each party has power to dispose at will of ½ of the community property (no
survivorship feature)
 One of the parties is a manager of the property
 If creditors are coming after community property state, they’ll first follow the management of
control (couples dividing their labor)
 If it’s a gift or inheritance, it is not Community Property

Community Property and Separate Property MIXED

How Court will Analyze:
Hypo: Wife pays 1/3 down on house before marriage THEN uses community earnings after marriage to
pay down the other 2/3. Who owns the house?
 Inception of Right Rule: character of the property at the time of inception (were they in a
community property state)
 Time of vesting: (not used anymore)
 Pro Rata Share: if they sold the house, the wife would get 1/3 and split the 2/3 (since it is
community property)

Migrating Couples (couples moving from community to separate jurisdictions)

 If you have multiples houses or if you buy a car in a community property state but then you move
to separate property state?
 Rule: the domicile of the spouses when property was acquired determines type of property
o So, if you buy in CA and move to a common law state, it remains community property
o Can only have one domicile

PR Hypo for Final:

Bought a house in CA, bought a car in CA---moved to CO---one spouse dies
Death: Personal property (not a house; land; just the other stuff)

Hypo:
1. How is the lot held between Bob and Joan? Right of survivorship
2. Bob dies, so Joan gets the lot automatically
3. Steve: doesn’t get the lot because it goes automatically to Joan

Hypo 2: In a community property state

1. Mutual fund: split in half

2. Car: (separate property because it’s a gift from parents)
3. House (separate property because she got it before marriage)
4. Field (split in half)

PR: What is Community Property v. Separate Property

- Anything not a gift or inherited, is community property

V. Landlord/Tenant Law

T 03/07 History/Selection of Tenants/Delivery Possession/Assignments

A. Leasehold Estates (4 Types)

- Estate granting for a particular period of time
a. Term of Years – fixed time
 Duration: lease lasts for (years, days, months, etc.) = a specified period of time (could be 2
months, 5 years, etc.)
o Ex: J transferred farm to T for a period from June 1, 2006 to June 5, 2006.
 Notice to LL: No notice needed to terminate the tenancy
 Death of LL: effect of Death of the Landlord? (ex: LL says they’ll give it for 346 days and day
145 LL dies)
o Nothing happens to the leasehold estate; you still have it for that specific time
o Not forced to vacate
Statute of Frauds
1. Leases of more than a year must be in writing (a year and anything more)
2. Oral leases are ok as long as under 1 year in duration (common law)
- Situations where you may not have it in writing (family members)

b. Periodic Tenancy
 Duration: lease lasts for successive intervals (months, weeks, years); month to month, week
to week, etc.
o My current lease (pay every month on the 1st---not that its an annual lease)

 Commercial spaces: year to year

o Notice to terminate: 6 month notice
 Residential spaces: month to month
o Notice to terminate: if your paying per month, need at least 30 days (under common
law) but is governed by the K

PR: Notice of Termination Example (must be given before the successive interval ends)
 If you pay on June 1 (pay on the first of every month), give notice on June 6 (which is after
the term) so must pay for July and it ends in August
 Give notice on the final day of your period so your clock starts and you have one period left
before you vacate

 Term of Years
 TOY expired on October 1
 Bob can move whenever he wants without giving notice (no notice for TOY)
What if the lease above had read, “to Bob from year-to-year, beginning October 1.” but
Bob’s actions had been the same?
 Periodic Tenancy; A 6 months-notice (under common law if its year to year)

c. Tenancy at Will
 Duration: no fixed period and endures as long as landlord and tenant desire
 “Just stay here as long as you want”
o Bob conveys Whiteacre “to Tom for as long as Bob or Tom desires”
 Notice to terminate: If you pay monthly, must give notice a month in advance (Just depends on
the intervals you pay each time)
 Effect of Death of LL: Garner v. Gerrish

Garner v. Gerrish
 Garner: Donovan’s executor (Donovan is the landlord who died)
 The death of Donovan didn’t effect Gerrish tenancy

d. Tenancy at Sufferance: Holdovers

 Ex: Solomon leasing from PR for a year, paying month to month and then 14 months he’s still
there
 Options for LL if tenant is still there: 1) eviction plus damages OR 2) LL consents to a new K

 Created when a tenant has wrongfully held over past expiration date of the lease
 Landlord can evict (plus damages) OR landlord can consent via expressly (by creating a new K)
or impliedly: if landlord cashes check for rent thus accepts it and creates a new tenancy =
majority rule is that it creates a periodic tenancy in the interval in which rent is paid (Ex: mo. to
mo.)
 If landlord needs you to leave, landlord returns money and evicts

1. Majority Rule: if LL cashes check for one month, a new periodic tenancy is created (for how
long? In the interval at which rent was paid)

2. Minority Rule: if landlord accepts rent for one month, just duplicates original K (which gives
tenant additional rights to stay for at least another year)

B. Leases and Contract Principles

 Most courts explicitly rely on K principles to reshape leases
 Are covenants in leases mutually dependent?
- If landlord breaches promise to repair, does tenant’s obligation to pay rent cease?
o Answer will depend on states (tenants rights in each state)
o But in common law will have specific rights (in the next class)
 Is a warranty of quality to be implied in leases?

Hypo 1:
Joan leased Blackacre to Bob on January 1, 2003 for a periodic tenancy of month-to-month. On May 15,
2003, Bob sends written notice of termination.

– When may Bob vacate the premises?

• Tom holds over after the expiration of his one-year lease, but sends another month’s rent check to Jim.
– What are Jim’s options?
Hypo 2:

Lance and Kato were negotiating on the telephone for a commercial lease. At the end of the conversation,
Lance said, “Have we got a deal on a five year lease with rent at $1500 per year?” Kato replied, “We’ve
got a deal. 5 years at $1500 per year.”

– What type of tenancy is this?

C. Selection of Tenants: Fair Housing Act

Landlord can’t discriminate:
- Race, color, religion, sex/gender (separate legislation for sexual orientation), national origin,
familial status (married v. unmarried), handicap (disability),
- FHA does NOT apply to all landlords; more so applies to large tenant housing
o If 5 or more units, then most likely subject to FHA
- FHA does NOT apply to drug addicts

a. How to bring a claim under FHA?

1) Meet one of the classes in discrimination list

- show proof of discriminatory impact (ex: LL said you can’t live there)
- don’t have to prove intent; just the impact

2) Disparate Treatment
People do not sue to continue to live there; sue for future individuals
If P. meets burden, the burden shifts to D. (LL) to prove compelling government interest

b. Exceptions to FHA:
1. Single family house sold or rented by private owner
2. Rooms or units occupied by owner and no more than four individuals living there
3. Some circumstances, some religious organizations and private clubs

(Continued in 03/09 Notes)

Garner v. Gerrish
Two Rules:
English Rule: makes LL responsible; if person is in your space when lease begins then sue LL
American Rule: sue wrongdoer

A. Subleases and Assignments

Ernst v. Conditt

Assignment: if person gives all interest away, its an assignment

Sublease: anything less than your assignment
- Both for private leases only

B. Commercial Leases
Kendell v. Ernest
Can a lessor unreasonably withhold consent of an assignment?
1. Majority Rule: if the lease contained an approval clause, the lessor could arbitrarily refuse to approve a
assignee (arbitrary: no I don’t want you to assign this; deny assignment; because your putting someone
else into the relationship)
2. Minority Rule: you can deny it but you must give a commercially reasonable objection

TR 03/09 Tenant Who Defaults

a. What happens when tenant defaults?

1. Tenant remains in possession (holdover) (Berg v. Wiley)
2. Tenant has abandoned possession

A. Tenant in Possession
Berg v. Wiley
 Modern Rule: use the judicial process which is eviction
o Summary Proceedings: in LL friendly states, evictions can happen quicker
 Requires LL to use this eviction process

B. Tenants who have Abandoned Possession

a. Abandonment – Need all 3 below
 Must vacate leased premises without justification
 Must lack present intent to return AND defaults in the payment of rent

Sommer v. Kridel
Minority: LL has no duty to mitigate damages when tenant abandons
Modern/Majority: LL has duty to reasonably attempt to mitigate losses
 Looking at LL’s with many tenants

c. Surrender:
For a tenant to surrender:
1. Tenant must offer to surrender the tenancy (expressly by written document or verbal) or
(impliedly by actions)
2. The LL must accept the offer (express/implied)

PR: Not a clear the line between abandonment and surrender (difficult for LL because they may not be
able to pursue tenant after accepting Surrender)
- Look at state statutes

VI. Land Use Controls

T 03/28 Landlord Duties/Tenants Rights and Remedies

A. Implied Covenant of Quiet Enjoyment v. Constructive Eviction

B. Implied Warranty of Habitability

a. Old landlord rule: Tenant took premises “as is” absent some clause in the lease providing otherwise
b. 1960s reform

a. Actual Eviction: landlord evicts the defaulting tenant

b. Constructive Eviction: landlord fails to provide the necessary services so the tenant then is legally
entitled to cancel the lease

Rest Realty Corp. v. Cooper:

 Cooper leased a basement floor commercial space for meetings; continuous issues with flooding
  She sent a notice of vacation to lessor eventually
 Reste Realty then acquired the building and an assignment of her lease interest; sued Cooper for
unpaid rent for between December 1961 (when Cooper vacated the premises) to March 1964 (the
expiration of the lease period).
 The T.C. found that Cooper had been constructively evicted and granted judgment in her favor.
 The Appellate Division reversed, holding that (1) there was no evidence showing that the
landlord had done anything constituting a constructive eviction, and (2) even if it had, Cooper
waived that defense by failing to vacate within a reasonable period of time.

 S.C.: The lease had an express covenant of quiet enjoyment---when there is a breach of this by
the landlord, courts apply the doctrine of constructive eviction as remedy
o Rule: Any act or omission of the landlord…which renders the premises substantially
unsuitable for the purpose they leased or seriously interferes with the beneficial
enjoyment, breaches the covenant and constitutes a constructive eviction of the tenant

 Theory of constructive eviction:

Book: obligation to pay rent was based on the tenant having possession undisturbed by LL
If the tenant could characterize a shortcoming in the premises as an unlawful disturbance (ex:
breach of convent of quiet enjoyment implied in all leases) and if it was substantial to amount to
eviction and thus the tenant left, then it was as though the tenant evicted

PR:
 Implied Covenant of Quiet Enjoyment: beneficial enjoyment and use of premises for agreed
term
Applies to residential and commercial leases

 Constructive Eviction: act or omission that causes substantial interference with use and
enjoyment of premises (aka Quiet Enjoyment)
o a. Tenant Remedies for Constructive Eviction:
1. Provide land lord with notice
2. Allow reasonable time for cure
3. Vacate premises within reasonable period (usually 3-4 weeks)
- Exception: if tenant waits too long, may waive right to constructive notice
OR
1. Remain in possession and sue for damages

I. Partial = its not your whole place that is inhabitable

b. Partial Actual Eviction: if landlord actually takes you out; you do not have to pay rent (ex:
landlord says they need to take over your bedroom)

c. Partial Constructive Eviction: landlord needs to just fix a part of the house or just an issue of
part of your house, then you still need to pay rent

c. Retaliatory Eviction: if tenant lawfully reports landlord for Housing Code Violation, landlord is
barred from penalizing tenant
 Ex: raising rent; ending lease; harassing tenant; decrease services
 90-180 days rebuttable presumption of retaliatory eviction on landlord; thereafter the burden of
proof shifts to tenant
B. Implied Warranty of Habitability (IWOH) – Residential only
(not all states have this)
(GA does not; so instead tenants in GA can sue using contract/tort/property (Housing Code) laws)
 IWOH cannot be waived
 IWOH only applies to residential leases
 IWOH = premises must be fit for basic level of human habitation (local housing codes or state
statutes)

Hilder v. St. Peter

 Hilder moved into an apartment owned by St. Peters and lived there with children
 Issues with apartment: broken windows; non-functioning appliances; water leakage
 St. Peter was aware of problems as Hilder complained but would never fix the issues
 Hilder paid all the rent while she lived there and sued St. Peters
 Ct. held an implied warranty exists in every residential lease, whether written or oral, that the LL
will deliver and maintain throughout tenancy, premises that are safe, clean, and fit for human
habitation
- Implied for tenancies at will or for a specific period
- Covers all latent and patent defects
- A tenant cannot assume risk if they have knowledge of any defect nor can the warranty
be waived in any agreement

Tenant Remedies for breach of IWOH:

1. Remain in possession and sue for damages (general damages and punitive damages)
- Tenant must put landlord on notice
- Allow a reasonable time to cure

2. Remain in possession and Withhold rent

- Tenant must put landlord on notice
- Allow a reasonable time to cure
- Defect that is affecting habitability must exist during time rent is withheld

3. Tenant repairs and deducts cost from future rent

4. Terminate lease and sue for damages

 Difference between Implied Warranty of Habitability (IWOH) and Implied Covenant of Quiet
Enjoyment:
o Premises be fit for human habitability
o Does not apply to commercial spaces
o Beneficial enjoyment

VI. Land Use Controls : Private Land Use Controls (controls made by owners of property)

T 04/04 Easements – Historical Background & Vocab; Creation of Easements (Reservation to

Third Party/Prior Existing Use)

A. Law of Servitudes
a. History:
 During medieval times, no fences; everyone worked in common (together); everything open
(fields)
 Early 16th century start getting enclosures: allowed owners to fences in for a purpose
B. Easements
 A right to use the real property of another, without possessing it
o Ex: right to drive across someone’s land; when people have shared driveways
 Requires two or more people
o Cannot have an easement with yourself since you already own property
 A right of use, NOT a right of possession (which is Fee Simple Subject to..etc;.)
 Revocable (like Licenses)

a. Requirements
1. Need two people
2. Dominate Estate:
 Owner of the land
 The easement is attached to dominate estate and benefits this parcel of land
3. Servient Estate:
 The land that is burdened
 A (dominant estate) holds an easement to use land on B (the estate to use land burdened)

b. Classifying Easements
1. Affirmative Easement: right to use another’s property for a purpose
- A right of way
- Ex: A has a right to drive cattle over land of B

2. Negative Easement: right to prevent someone from performing a lawful action

- “restricting”
- Ex: A has an easement restricting B from blocking A’s mountain view)

1. Appurtenant: benefits a particular parcel of land (benefitting the land, not an actual person)
- Ex: if B sells to C: the land is still there and thus still benefitting; transferrable (runs with the
land; attached to the land)

2. Gross: benefits a person or corporation, NOT the land

- Not a dominant estate, only a servient estate
Ex: Nick came to pick apples off of PR land (not benefiting PR land, just benefitting PR)
- Poses issues with transferability
Ex: Take gravel off my land

1. Profit: a right to remove something

- Ex: minerals, fish, water, timber = A Profit in Gross

2. Reservations: a provision in a deed creating a new servitude

- Exception: a provision in a deed that excludes from the grant some preexisting servitude on the
land
- Willard v. First Church of Christ, Scientist

C. Creation of Easements
1. By express words: you write it out

Willard v. First Church of Christ, Scientist

 PR Takeaway: Grants or reservations to a third party are fine
 Facts:
 o Peterson (owner of lots) sold land to Willard and wanted to Reserve a right for the
Church to park (the Church is the 3rd party
 Ex: family burials; a company writing to buy land with family burials and family allows it with a
Reservation to go lay flowers on burial site

D. Implication (Implied)
- Prior existing use (Van Sandt)
- Use

Van Sandt v. Royster

 1936: Plaintiff discovered a flood in his basement and found out for the first time that there was a
sewer drain that existed on and across his property
He then brought suit against the defendants (Royster and Grey) when they refused to cease
draining and discharging their sewage.

 Trial Court:
Found that “an appurtenant easement existed in the lateral sewer to all three properties and it is
also necessary to the reasonable use and enjoyment of the said properties of the parties
 The majority of courts hold that an easement by implied reservation by the grantor (by
implication) will only be created out of “strict necessity.”

PR Takeaway: He has an Easement by Implication and thus the easement is Appurtenant because if he
sells the land, the easement is attached to the land

E. Necessity: when there is no other option

PR: good way to think of it is a land locked parcel

TR 04/06 Creation of Easements by Necessity/Prescription/Public Trust

i. Recap of Creation of Easements (Easement = right of use only, NOT a right to possession)
 Dominant Estate: estate that benefits from the easement
 Servient Estate: estate that is burdened by the easement

 Appurtenant: tied to land, runs with the land

 Gross: tied to an individual person
o Can a person transfer those to another person (next class)

ii. Ways Easements are created:

 Most common: expressed/written (the writing of a “right of way” in a deed)
 Less common: Easements by implication (when we have to imply an easement was there), an
easement by necessity, or an easement by prescription, public trust

a. Necessity

Othen v. Rosier

Facts
 Hill owned a large tract of land and conveyed 100 acres of that land, which eventually reached
Rosier.
 Hill conveyed another 60-acre tract, which conveyance eventually reached Othen (plaintiff).
  Othen’s land did not connect to a public road, so in order to access Belt Line Road, at the western
border of Rosier’s property, Othen would follow a fenced-in path which ran through Rosier’s
property.
 Eventually, Rosier was concerned that certain water patterns threatened to cause damage to his
property, so he constructed a levee to channel the flow.
 The levee blocked half of the road used by Othen, and rendered the path muddy and unusable.

 Othen sued Rosier, alleging that Rosier had blocked his right of ingress and egress to and from
his farm. Othen sought injunction
 T.C. found that Othen had an easement of necessity across Rosier’s land, and entered the
requested injunction.
 The Court of Civil Appeals reversed the trial court, and Othen appealed.
PR Facts:
 Two claims: easement by necessity and easement by prescription
 Overtime a piece of land became landlocked and had to use a road to get to his house; neighbor
(Rosier) saying you cant use my land
 Bad blood between the neighbors

Easement by Necessity Analysis

In order to have an easement by necessity:
1. Need to have a large parcel, gets cut (or sell off a piece of it and creates 2 estates) but at the
beginning there must be alleged dominant estate and servient estate
o Not in this fact pattern (the large parcel wasn’t originally owned by the same person)
2. Is the roadway back to this person’s house a necessity or convenience (conveyance) ?
o The court looked at what was at play when the estate was separated
 Once you have a large parcel, what was the state of play once it was separated
into a dominant and servient estate
 The necessity has to exist at the time of severance of two estates
Ct: Othen doesn’t have a easement by necessity

Easement By Prescription (prescription is the same word/legal principles (but not for right of
possession of land, just for right of use) as Adverse Possession)

 Ct: said it was permissive, made it more like a license

o Permissiveness is against Exclusive (the person is saying go ahead and use my roadway)
 Othen didn’t have exclusive right to this pathway: other people using the path for
different reasons, just not Othen
o Permissive use cannot change into an exclusive right: your being allowed by a neighbor
to use a path unless the neighbor puts up a fence and says you can no longer use it
o Summary: With prescription, does it meet all the elements of AP---if it does then you
have an easement by prescription
 Here, its also not violating the Hostile element (if others are using it = hostile)
 Ct says no easement by Prescription

a. Public Policy reason behind easement by necessity:

- We want people to be able to access their land otherwise it would be inaccessible
- Ct. want land to used; circulating

b. What degree of necessity must meet necessity factor:

 - Majority of courts: Strict necessity only
- Ct. will see what other alternatives you have to get it in

PR Hypo:
 Property next to cliff, the cliff goes down to river and other side people blocking your way to the
road. Do you have access?

 Landlocked but what if you can navigate to your land? Does that count as strict necessity?
- That’s how strict ct. evaluate it: If you have any way into your property, we will not give you an
easement by necessity

PR Hypo 2:
A national park landlocked by a bunch of private land around it, can the government have an easement by
necessity?
- Power government has that private parties do not have? Governments have the power of eminent
domain (aka Taking/Condemnation); they don’t do easement by necessity

PR: If court finds an easement by necessity on your land (burdened owner), should the land owner get
some type of compensation?
- Some courts say no, its an implied necessity and that overrules compensation
- Some courts say yes

Usually talk about Easements (visa-vi) private owner v. private owner, but what about public
prescriptive easements: the public (everyone) gaining access to a place
- A new principle; not much known about this
- Seeing it now in places like NY and urban places where its not a lot of public space available
(parks, outside of Rockefeller Center sitting areas outside– private land but public using it )
- This is not an easement against a government; more about an easement against a corporation or
something

Easements by Public Trust

 Public Trust: implicit agreement between ruler and public that they have right to use a thing
 Typically find public trust issues: parks; BLM land (bureau of land management)
o The resource typically used is Water (historically: even the emperor cannot stop people
from using water)

Public Trust Easements Dealing with Water

Raleigh Avenue Beach Assn. v. Atlantic Beach Club (2005) (NJ)

Can a private beach club prevent public from accessing a beach in front of the club? (privately
owned beach front)

 The beach claiming that since there are other accessible ways to go other parts of the beach, the
public shouldn’t impede on their place/sand
 Tony issued a summons, he just wanted to walk through the beach club sand area to get to his
place (cited for trespass)

PR:
 Rule: Can roam along the beach anywhere in U.S., but that public trust doctrine ends once
you get off into the dry sand
 (As long as on the wet sand, that is public trust)
  Not every private beach will be burdened if there are reasonable public walkaway

 Courts are unclear to the scope of Public Trust doctrine; do not rely on that alone if suing; attach
it to another legal principle

T 04/11 Assignability and Scope of Easements/ Termination of Easements/Negative Easements

Questions:
 Can you assign an easement?
 What is the scope of an easement?
 Can you divide an easement, particularly an easement gross, can you change the location?
 Terminate an easement?
 Negative easement? (most easements are affirmative)

A. Assignable: transfer your easement

1) As long as both parties intend and SE has notice (Appurtenant)
2) Gave the easement to a person (Gross) (only have a Servient Estate in Easement of Gross – the one
being burdened with fishing, etc.)

(FROM LAST CLASS – PR OVERVIEW FOR THIS CLASS)

Appurtenant Easement:
 You have a dominant and servient estate; have a right of way
 The dominant estate can assign if they give the land to someone else
 Not worried about appurtenant easements because the everything is tied to land here
 As long as the parties intend to pass the easement and the Servient estate has notice; usually in
the form of a contract
 Dominant estate can sell their right of way --- not going to expand or contract because its tied to
the land regardless of who comes over to take over

Harder with Easements in Gross

- Giving an easement to a person; not tied to the land (ex: can go fish on the servient land)
- Courts are worried about this because if you transfer this, another person can go fish on the land
as well (its expanding)
- Miller v. Lutheran case

Miller v. Lutheran
 1895: Frank Miller and Rufus Miller: fishing, boating, bathing
 Frank sues in equity (injunction)
 Frank wants no bathing by defendant (Lutherans)

 Worried about an Easement in Gross here because Rufus dies and there’s a license to a church
group to allow them to come bath in the water—Frank sues in equity

 Frank says no bathing because Rufus didn’t give that right to bathe
  The servient estate is the lake (Rufus having the right to bathe is one thing but allowing church to
also do it is over burdening)

 Ct. had harder time here because they found it less like a personal easement because Rufus and
Frank are making profit

Rule: all easements in gross are assignable except for recreation easements

B. Assignment of Easements
 All Easements in Gross are assignable except for recreational easements (hunting, fishing,
etc.)
o Why not recreational easements? Because it is an activity and can overburden the land

C. Divisibility:
If you have an Easement in Gross to pick apples and have 3 kids (can I divide my easement in gross to
allow my 3 kids to pick apples?)
 Majority Rule: Easements in Gross are divisible (can give away to kids) UNLESS its
contrary to intent of original parties OR puts an unreasonable burden on Servient Estate

 Ex: So if its assignable and now I have that right to fish and I give it to my 5 buddies to fish and
eventually no more fish
o Majority: fine unless contrary to intent of original parties OR puts an unreasonable
burden on Servient Estate
o Minority: it must all be managed under the One Stock Rule; cannot divide it, it must be
managed as one whole or if I did divide it to my 3 kids, they’d have to manage it as a
whole
 Divisibility is an in Gross thing; cannot be with Appurtenant since you cannot divide land

D. Scope of Easements and ability to move easements around:

Brown v. Voss
3 parcels: A on bottom (Voss)---B—C (Brown buys both B and C) (puts house on C)
An easement on parcel A

Classify Estate: Servient estate is A----Classify Easement: Appurtenant, Affirmative Easement (B

has the right of way to drive across the road on A)

Issue: can an owner of a Dominant Estate (here Brown), extend scope of easement (here extending the
easement on parcel A to parcel B to get to their house on C)?
- Issue was big trucks, etc. driving across roadway

a. Rule:
1. Majority (traditional): Dominant Estate cannot extend scope of their easement
2. Minority: Dominant Estate can extend if no increase on burden of Servient Estate (here
wouldn’t look like it because Brown’s are already going across A but the issue was that big
trucks, etc. were going across A to get to House for construction) OR no appreciable
(significant/substantial) hardship or damage to Servient Estate

b. Change of Location?
Ex: Have a right of way from A to B and not B (dominant estate) wants to change the road to go another
way
PR: Usually the servient wants to change the location because they feel its not working out right
1. Majority: Servient owner cannot change location without permission of Dominate owner (also vice
versa, Dominant owner cannot change location without permission of Servient owner)

2. Minority: Servient owner can change unilaterally IF it does not lessen the utility of the easement for the
dominant owner OR does not increase burden of the easement owner’s use OR frustrate purpose of why
the original easement was created

PR: On exam, will tell us if we’re in a State of majority or minority

E. Termination of Easements:

Termination of Easements Analysis:

1. Was there an easement created? (bc if it wasn’t created it cannot be terminated)
- Easement (right of way) or Fee Simple (actual ownership)

2. The scope of the easement (has the scope changed, has it been divided, terminated?)

Preseault v. U.S.

PR:
Railroads have a right of way
Issue was what happens once the railroad stops or isn’t being used anymore

 Right of way used to be used for 100 years for train purposes and then sort of just stopped
 Question: Can state of VT say this is no longer a railroad, it’s a path for recreational (biking,
hiking)?
o The problem here was the trains only had a right of way, not a fee simple title
o Rule: What happens when a right of way goes out of use? The land goes back to
property owner
o The state VT wants to just switch the use: from railroad to recreational
o For the plaintiff, they feel it is a Taking; the land should’ve gone back to them (p); thus
they deserve compensation

Court analysis:
1. Did the RR have a fee simple (actual ownership) or an easement (right of way)
- Ct says easement

2. Scope of original easement (did it include use of easement for a public trail)
- Ct. says no, it was a RR easement

3. If we assume the public trail use were within the scope of the easement, was the easement
abandoned or by the discontinued railroad, terminated the easement?
- Ct. says it was abandoned (RR are federal entities, not State)
- So when RR abandon a line, there is a legal process to formally abandon it

If the easement was terminated, is the use public use of the strip of land a Taken?
- Ct. said yes, it is a Taking because it was abandoned and at that point it goes back to
the original land owner (P.)
Ways to Terminate Easements
1. Estoppel: Ex: there is a dominant estate and servient estate---dominant owner says now they
have a different way to into their house, no longer need to use servient land; then servient uses
that old right of way to build a garden (servient relies on that)

2. Necessity ends (if its an easement by necessity) (ex: when roads are built, now you don’t need
that easement anymore)

3. Expiration (an easement in gross says you have a right to hunt on my land for 2 years, after 2
years ends, its over)

4. Release *most common* (both parties say the easement is relinquished; must follow statue of
frauds = writing and signed by parties---not a oral agreement)

5. Merger (servient buys out the dominant or vice versa) (so both own the parcels)

6. Abandonment (hard to prove abandonment unless a formal process like RR)

- must be other actions besides non-use (no like non-use prescription)
- you don’t just lose your land unless someone adversely possessed it via prescription

7. Condemnation (aka Eminent Domain) the government Taking your land

8. Conditional
9. Prescription or the non-use of a prescription easement

F. Negative Easements

PR: private to private: can number 1 stop number 2 from doing something on number 2 land
- not the government saying you cant build your house --- those are zoning restrictions

i. Negative Easements at Common Law

1. You cannot block someone’s windows (can’t build up to there) (not a big deal now)
2. No interfering with airflows
3. Cannot dig down underneath land and remove supports of the house (mineral rights?)
4. No interfering with water flow
5. Viewshed (like view of mountain)

ii. Negative Easement (statutory law)

6. Conservation easements ( conserving a historic space, building, viewshed) (Ex: ppl wanted to
build houses in Potamic but it would’ve changed viewshed of Whitehouse) (ct settled by creating
conservation easement: can build but it cannot block viewshed)

TR 04/13 Covenants Running with the Land/History and Creation

PR Background:
 Courts do not like negative easements and stopped allowing it.
 The result was people sought to do the same thing but instead via contracts.
 So now courts are enforcing contractual agreements with those restrictions = RESTRICTIVE
COVENANTS
 o Those agreements may say “I want to benefit or burden my neighbor and we have a
mutual agreed private contact”

 Covenants running with the land: a property remedy based in contract law
 Covenant = a written promise = contract
 In contracts = privity = direct relationship

a. Horizontal Privity: When someone makes the K: If A and B sign a contract agreeing to build fences
only up to 6 feet high (both receive burden and benefit)

b. Vertical Privity: When someone sells the K

If A sells to D (vertical privity): can D enforce the 6 feet high agreement.
Yes: if there is VP (direct relationship between original grantor and successor)

c. Real Covenants
 There’s a burden end and a benefit end
 Will typically a negative (restrictive) promise: B promises A, B will not build a factory on my
land (B is burdened; A is benefit)
 Two Ends of the Covenant:
A---B: A is the Promisee-Benefit while B is the Promisor-Burden
Ex: B agrees to not build a factory; burden on B; benefit to A
i. Promises/Obligations:
 Negative
 Affirmative (promise to do something---like promise to build a fence; keep it in good order)
 Reciprocal Covenant: If both agree to the same thing = both have benefit and burden

Hypo 1: (seeking MONEY)

B promises A that they will not build a gas station; what if B does build a gas station?
- A and B have horizontal privity
- A can sue

Hypo 2:
1) B promises A that they will not build a gas station; Burden: no gas station on the land
2) A sells land to D (now D is in control of the land and B builds a gas station)
Q: what must D allege to prove that the benefit runs to them
- Proves there was vertical privity (between original A and D)

Hypo 3:
If B conveys to parcel C and C builds gas station but A still owns the land, what must A allege to enforce
the K? - - - That the burden should run to C (sold from B to C)
Hypo 4: Under reciprocal covenants, must prove both the burden and benefit runs

i. Real Covenants v. Equitable Servitudes

a. Real Covenant: money damages; enforceable in common law courts
- cannot have it by estoppel but can have an Easement by Estoppel, Implication or Prescription
b. Equitable Servitudes: injunctions; enforceable in chancery/equity courts

PR:
  Judges can do both now
 On Exam it will depend on what the client wants (money damages v. injuction)
 The key difference between both is the remedy desired
 Adverse Possessor: not bound by covenant and restrictions

Tulk
Takeaway: we will enforce equitable servitudes

B. Creation of Covenant
Sanborn v. McLean : General Plan
 Reciprocal Negative Easement (aka?)
 Issue with documentation: not all titles include restrictions
 It does run
 PR Takeaway: the general plan of the subdivision—everyone in the subdivision has the same
restriction---if court finds someone without the restriction in their title, the court will uphold
restriction due to the general plan

 Servitude: Real Covenant or Equitable Servitude: private owner v. private owner

Real Covenants (only if you seek money damages)
Burden: in order for Burden to run, must meet all Benefit : in order for Benefit to run (much easier)
of the following: - If you prove Burden runs, then can
always prove Benefit runs too)
1. Covenant in writing (Statute of Frauds) 1. same
(cannot have a RC via estoppel, implication,
prescription aka Adverse possession)

2. Intent to bind successors (in the covenant) 2. same

3. Touch and Concern the land 3. same
- must be related to the land (ex: fences)
-Negative Covenant (limiting the use of the land)
always Touch and Concerns land
- Affirmative Obligations like paying fees use to
not satisfy T/C but now they do
4. Must prove Horizontal Privity (between the 4.
original contractors) and Vertical Privity (entire - Not required to prove Horizontal Privity
estate ran to successor interest) - same or lesser interest (Vertical Privity)
5. Successor must have notice Same
- Can get notice via a deed
- If subdivision, there is a masterplan by
developer filed in city and can thus substitute
notice not being in deed)

RC Chart
 To prove Burden:
o under Horizontal Privity: its easy since you are one of the original grantors
o For vertical privity, for the burden to run, C has to succeed to the entire estate of B
o (if B sells land to C --- must transfer everything)
o Ex: B transferring to C via fee simple absolute subject to the covenant)
  To prove Benefit:
o easier
o If D wants to prove the benefit runs to him (from A) and A has a FSA but only sells D a
LE, that’s perfect: it’s a lesser interest (meets the same or lessor interest req)

Enforcing RC Analysis:
1. First find out who has the burden and who has the benefit
- in reciprocal agreements you have both

2. If you want to enforce the covenant or show that the burden should run to someone: must
prove all things on burden side
1. SOF
2. In covenant must expressly say it binds successors (“to all successors”)
3. Touch and Concern:
 The covenant or restriction on the land, it must touch or concern the land (it must
be related to the land)
o Ex: fences---negative covenants (promise to not do something on the
land) WILL ALWAYS meet T/C the land
 Difficult with affirmative covenants (promise to pay HOA---now its thought of
to T/C land); Where its an additional fee to pay something that’s not HOA, like
to pay a Security Patrol service, not clear if it T/C land.

4 and 5. Prove Horizontal and Vertical privity:

Horizontal: the original grantor had a privity with someone on the benefit side AND the successor
succeeded to the ENTIRE estate (vertical)

5. D. (the successor) must have notice: if A is selling something to D, D must know what their
buying into

PR: If you can prove the burden runs, can always prove the benefit runs
PR: Final Exam: If you want to prove a burden, the Real Covenant chart would be law paragraph—then
analyze with facts---conclusion

Equitable Servitude (only if you seek injunction damages)

Burden: in order for Burden to run, must meet all Benefit : in order for Benefit to run (much easier_
of the following: - If you prove Burden runs, then can
always prove Benefit runs too)
1. Covenant in writing (Statute of Frauds) 1. same
2. Intent to bind successors (in the covenant) 2. same
3. Touch and Concern the land 3. same
- must be related to the land (ex: fences)
-Negative Covenant always Touch and Concerns
land
4. Must prove Horizontal Privity and Vertical 4.
Privity (entire estate ran to successor interest) - Not required to prove Horizontal Privity
- same or lesser interest (Vertical Privity)
5. Successor must have notice
PR:
 Do not care about Horizontal or Vertical Privity
 Easier to find an Equitable Servitude because your not asking someone to give money damages

PR Analysis:
1. First ask what remedy is sought?
- Money = RC
- Injuction = ES
- Both = must prove a RC (since you will always prove a ES with a RC)

Analysis
1) the original equitable servitude must be in writing;
2) the writing must show intent to bind the successors to the
equitable servitude;
3) the equitable servitude's specific restriction must touch and
concern the
land, and 4) the successor must have notice of the burden on the
property.

An equitable servitude touches and concerns the land when it bears some
reasonable relationship to the use and enjoyment of the land

T 04/18 Validity and Enforcements of Covenants/Discriminatory Covenants

PR:
The issue is when you sell and are selling certain restrictions
Is it fair to transfer restrictions that A had to C (A---B; A---C (vertical))

PR Ex:
Restricting the selling of pornographic books
A---B---C---D---E---F (B---G: lease is 6 months)
 A wants to enjoin G = Equitable Servitude
 Does the burden run to G for Equitable Servitude?

Answer:
Equitable Servitude Chart: Burden side
1. Not looking at privity because it is an Equitable Servitude, not dealing with covenant)
(Review in video)

PR: issues are in T/C

Neponsit Property Owners Ass. V. Emigrant

 Dispute on HOA dues
 Why do courts hate Affirmative Obligations? (pg. 873)
1. Imposes a personal liability
2. Judicial supervision
3. Clogs title (makes it hard to be alienable)
4. Looks like a feudal service or perpetual rent

Touch and Concern Analysis: How to know it T/C the land

1. Does the contract or servitude alter the legal relations of the parties as owners of interest in the land
If yes, then it T/C land

B. Discriminatory Covenants
Shelly v. Kramer
PR Takeaway:
 Today if you have a discriminatory covenant, will use Fair Housing Act and Civil Rights Act
 Not on Exam

TR 04/20 Termination of Covenants

Termination of Servitudes: (pg. 882)

1. Merger: If B by A parcels and merger of land, the servitude will diminish
2. Release: two people decided to have a Restrictive Covenant and then decide they no longer want it
3. Acquiescence: rare; NOT ON FINAL
4. Abandonment:
5. Unclean Hands: say you won’t put commercial property on land and then neighbor and yourself place a
gas station on land but you have an issue with neighbor doing so (where the P. violated a servitude)
6. Laches: wait too long; rare; NOT ON FINAL
7. Estoppel: if D. has relied on P. conduct making it unequitable to allow the P. to enforce the servitude
8. Eminent Domain
9. Prescription
10. Changed Circumstances
*The master general plan is enough notice for owners in subdivision; doesn’t need to be in deed; breaks
down with Changed Circumstances

Majority: if government is going to condemn your…the government must pay those who are effected;
value as a property right thus the government must pay
Minority: No necessary payment; not a property right (view it as a contract)

10) Changed Circumstances

Western Land Co. v. Truskolaski
1941: 40 acre land: single family dwelling/residential only
1961: the city made the road bigger
1968: Western Land file their ? with the county; wanted to build a market on 3.5 parcel
City wants to rezone the 3.5
Western Land wants a market and homeowners say no and try to enforce restrictive covenant (residential
only)
Western Land: argues “Change in Conditions”: there are restaurants, shops, etc. around but not really any
commercial business in those 3.5 (only nearby)

Ct:
 Once a residential community, now some commercial spaces has tipped in….
 It’s changed so much that some of these RC and ES aren’t enforceable anymore

Changed Conditions Test: when the change is so radical that the covenant no longer serves its original
purpose
 Determine internal character of neighborhood

Holding:
The homeowners can enforce the covenant
Not enough change occurred
Benefits for residents: less traffic, etc.

Changed Conditions Test = Substantial Benefit Test

As long as the original purpose of the covenant can be accomplished and the benefit still holds, then it is
enforceable

PR: On Exam, argue the ones (1-10) that tip it over

Rick v. West
 Rick wanted to sell his land for commercial purposes
 West refused to release the covenant (she was an IN-HOLDER)
 Preferred Remedy: West wants an injunction
 If a city really wants to put a Hospital there, they can take (many factors before ct. approval;
harder if its for commercial property)

C. Abandonment
Pocono Springs Civic Association, Inc. v. Mackenzie
 Mackenzie purchased a lot in fee simple
 They don’t want the land because they can’t use it (ground underneath is bad)
 The lot is a part of subdivisions
 Attempted to sell it
 Claimed they Abandoned it but HOA (Pocono Springs) says they still owe dues
 Mackenzie’s sent notice to interested parties for Abandonment

Issue: Did they abandon it?

 Test in PA for Abandonment: “Voluntary relinquish….”
 Mackenzie’s did NOT relinquish their title; did not meet the test

Test for Abandonment

Voluntary relinquishment of your title with the intention of terminating ownership but without vesting it
in another person

PR: Mackenzie could’ve brough a breach of contract claim (other owners facing the same issue; If
something in the lease said there was a good sewer but in reality it is not)

Why can’t title be abandoned? Why you need an owner on land?

- Hazardous Waste