Pro Outline

8/3/2019 Pro Outline

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Chpt. 1 Origins of Property/What is Property

Policy Arguments:o Judicial Administration: how does a case affect the administration of the judicial system

Balance efficiency of the judicial system with fairness to the partieso Normative: undermine or promote shared societal values?

Promote: Consistency with accepted standards (i.e. form v. substance) Social utility (serve a social good? Benefit society? Undermine/harm society? Corrective justice (fairness btw parties/more harm = more responsibility

o Institutional competence: which branch of gov't is best suited to resolve the issue? Ex: who is best suited to make military decisions? Judiciary or exec.

o Economic: allocation of resources, cost/benefit analysis, economic efficiencyA. The Right to Exclude - p. 4-10 (N&Q 1,2,4) pp. 11-17 (N&Q 1,2) pp. 20-32 (N&Q 1,2)

The Right to Exclude: legal right to exclude others from ones propertyo Certain situations of trespass, actual harm is not in the damage done to the land (may be

minimal) but in the loss of the individuals right to exclude others. This right may be punished by a large damage award despite the lack of measurable

harm. Both individuals & society have significant interests in deterring intentional

trespass to land.

o one of the most essential sticks in the bundle of rights that are commonly characterizedas property. Legal right is involved actual harm occurs in every trespass.

Intentional trespassing (if repeated) may ripen into prescription or adversepossession as a consequence, the landowner could lose his land.

o Jacques v. Steenberg Homes, Inc.: s filed suit for trespass against (Steenberg) after intentionally brought a mobile

home across their land to deliver to a neighbor, despite s express wishes against

doing so. H: nominal damages awarded for intentional trespass to land may support punitive

damages. R: right to exclude is HUGE without punitive damages, nothing to prevent future

trespass.

Limitations on the Right to Excludeo Well-recognized exceptions:

Cases of emergency or necessity person may enter the land of another withoutliability for trespass

Ex: retrieving a child, pet, or other chattel that has wandered onto the land ofanother

BUT liability for any damage done, but not for technical trespass. Landowner who refuses entry may be liable for damage that ensues

o Ex: if someone dies/is injured/property damage


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Where someone has wrongfully & forcibly taken a chattel belonging to someone else Person from whom it is taken may enter the land & retake the chattel, so long as

he is in fresh pursuit.

Encroachments by one persons building onto the land of another are generallyactionable as trespass

Landowner not always entitled to a remedy Brownstone Condominium Assn v. Geller:

o Ridiculous law suit asking for injunction to remove bolts from home thatentered wall of condo building, which was on the property line. Court refused gravely deprecate the importance of that extraordinary

writ.

Civil rights statutes limit ability of landowners to refuse to rent/sell to people onbasis of race, religion, sex, & other grounds.

Public accommodation statutes limit ability of business establishments open to thepublic to discriminate against would-be patrons. Ex: casino had no right to exclude a card-counting blackjack player.

Constitutionally protected free speech rights Limit rights of shopping centers to exclude people who want to gather

signatures on political petitions.

Ex: Private universities may be required to allow the distribution of politicalliterature on campus.

o Less-established exceptions: State v. Shack:

s entered (farmer)s property to aid migrant workers housed therein &explained their purpose (medical & legal aid) to . said they could only meetwith workers in his presence. When s declined, executed formal complaint

charging trespass.

H: s right to exclude cannot stand btw the migrant workers & those whowould aid them.

R: property rights serve human values & such rights cannot include dominionover the destiny of persons the owner permits to come upon the premises.o Maxim of common law that one should so use his property as not to injure

the rights of others.

Intel Corporation v. Hamidi: (Intel) sued (Hamidi former emp.) for trespass to chattels, seeking

damages & injunction, after sent six mass emails over 21 months to semployees criticizing s employment practices, etc.

H: no recovery. R: Restatement Second of Torts:

o One who intentionally intermeddles with anothers chattel is only liable ishis actions are harmful to the possessors materially valuable interest in thephysical condition; OR if the possessor is deprived use of the chattel for a significant time;


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OR if some other legally protected interest is affectedo Evidence revealed no actual or threatened damage to Intels computer

hardware or software and no interference with its ordinary and intendedoperation did nothing but use email for intended purpose communicate with

employees

Under trespass to chattels, must show physical damages to constitute actual harm. Unlike trespass to land, where the actual harm is in the trespass itself.

B. Bailment p. 79-80;Allen v. Hyatt

Bailment: created when possession of a chattel is transferred from one person (bailor) toanother (bailee) for a limited purposeo Ex: lending your car to a friend, leave camera at a shop to be repairedo

Elements: Delivery Custody Control

o If bailee refuses to return chattel conversion If successful in conversion action, it forces the bailee to buy it for its value at the

time the conversion took place.

o When a chattel in the bailees possession is wrongfully damaged, destroyed, orappropriated by a 3rd party, the bailee may seek redress from the wrongdoer

The bailee is entitled to possession against all EXCEPT the true ownero Duty of Care: the same care an ordinary person would use under like circumstances.o Voluntary bailment occurs when the owner of the goods gives possession to the

bailee

Ex: coat checko Involuntary bailment created when the bailee takes chattels into his possession

without the consent of the owner/possessor

Ex: finders, towing companies that impound illegally parked carso Constructive bailmentif someone misplaces their property on anothers premises

Requires the bailee to use the care an ordinary person would use under likecircumstances

o Allen v. Hyatt Regency-Nashville Hotel Whether a bailment was created between the and the when the owner parked

and locked his vehicle in the modern, multi-story parking garage run in conjunctionwith the .

H: YES!


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R: Bailment had been created when the owner parked his vehicle for custody andsafe keeping in the parking garage, where limited access and where the patron hadto present a ticket to an attendant upon leaving the premises. a bailment is created when the owner of chattel gives custody and control over

the chattel to another to hold until the owner requests delivery

Exception! open parking lots

Chpt. 2 Adverse Possession - p. 125-129 (N&Q 1,2; probs. 1-3); p. 131-136

Adverse Possession: acquiring good title to property owned by someone else by holdingpossession of the property adversely to the true owner (for the length of time specified instatute of limitations for action to recover possession of real or personal property)o Actual entry giving exclusive possession starts the SOLo Burden of Proofadverse possessor must bring a quiet of title actiono Elements! (OCEAN):1. Open and notorious: Possessor must fly his flag so that the owner has the

opportunity to see that someone appears to be claiming rights to use the property inviolation of the owners rights.

2. Continuous for the statutory period: Possession must be maintained throughout thestatutory period. The adverse possessor does NOT have to be present on the land at all times. Seasonal use or intermittent use may be sufficient. Use must be similar to that which would be made by an ordinary owner of

property like that in dispute. If there is break in possession (owner or govt), the adverse possessor may have

to start over (building a new statutory period after regaining poss.) 3rd party intrusion usually does NOT defeat the continuity requirement

3. Actual and exclusive possession: Possessor must have taken actual possession of allor part of the land claimed and held it to the exclusion of possession by others.

4. Adverse or hostile possession: Possessor must not hold subserviently to theowner of the property (ex: under a lease), but occupation must be wrongful as to theowner.

5. Claim of right: Possessor must be acting as an owner of the property rather than asa casual trespasser might act.

Good-faith: the possessor must have a good faith (but mistake) belief that theyown the property.

Aggressive Trespasser: the possessor intentionally acts to acquire the propertyhe does not own.


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o Ewing v. Burnet: claimed the exclusive right to the property under the color of title

Color of Title: a claim found on a written document (deed) or a judgment thatpasses title to the claimant, but because of a defect in the means of conveyanceor because the grantor did not actually own the land he sought to convey, isinvalid.

H: judgment for . R: To constitute an adverse possession visible and notorious acts of ownership

are exercised over the premises in controversy, for 21 years, after an entry underclaim and color of title. has openly evidenced public acts of ownership with no interference from the acts of visible and notorious ownership under color of title over premises for 21

years are sufficient to demonstrate the notorious requirement of adversepossession.

o Nome 2000 v. Fagerstrom: s used an abandoned boy scout camp, made improvements to the property, made

seasonal use of the property for recreational use, excluded others from the property,and others testified their use of the property was consistent with that of an owner.

H: jury could reasonably conclude that the s established by clear and convincingevidence, continuous, notorious, and exclusive possession for 10 years prior to sfiling of suit (but not the entire parcel of land).

R: Southern portion of disputed parcel was NOT adversely possessed Only activity included use of the pre-existing trails in connection with

subsistence and recreational activities, and picking up litter Does not provide the reasonable owner with visible evidence of anothers

exercise of dominion or control when one party possesses anothers property in a way that is exclusive,

continuous, and without permission for a statutorily set period of time, title

transfer to the adverse possessor and the owner will be barred from bringing anaction of ejectment against the possessoro intent is irrelevant it is the actual use of the property

o significant improvements are not necessary.

A. Prescription p. 152-155 (N&Q 2-4)

Prescription: when property acquired is an easemento Easement: the right to use property belonging to someone else for a limited purposeo Prescriptive Easements: an easement created by open, adverse, & continuous use over a

statutory period, the non-owner can gain limited rights to the use of the property (titleremains with the owner) Ex: pathway of the golf course used by Widener students, driveway Requirements for acquiring easement by prescription are generally the same as

those for adverse possession, BUT:

No requirement for prescriptive use to be exclusive No requirement for prescriptive use be made in good faith


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o 4 Strands of the Prescription Doctrine:1. Long continued enjoyment of property, in and of itself, creates an entitlement to the

property;2. A flawed title may be perfected by continued use or possession of the property;3. Long continued use or possession is evidence of a title previously granted by a

ceremony or document now lost;

4. Time for asserting legal claims should be limited (embodied in the statute oflimitations).

o Dietrich International v. J.S. & J. Services: used approx. 50 ft stretch of Terminal Station property to allow customers to gain

access to service bay. Dept. of Health Services ordered Terminal to replaceunderground storage tanks, which were recommended to be sunk in front of sservice bays (on Terminal property) but squarely in the easement claimed by &installation required barriers that blocked access to the service bays.

H: did not acquire an easement by prescription against the landlord (only thecurrent tenant).

R: The landlord, lacking a present possessory interest in the property, was legallyunable to bring an action to prevent from gaining the easement by prescription.

Interest sought to protect was wholly & essentially the right to possession.o Prescriptive period cannot start until the future estate (landlords right to

possession) is vested (given back by the tenant).o Actions for ejectment or trespass require the owner have a present

possessory interest in the property.o The , as landlord, is legally unable to bring the necessary action to obstruct

s use by prescription because he is NOT in possession (lease runs until2005).

B. Adverse Possession of Chattels p. 169-173(N&Q 1)

Replevin: action for the return of goodso Statute of Limitations:

Good-faith purchaser of stolen chattel: accrues when the true owner makes demandfor the return of the chattel & the person in possession refuses to return it.

Until demand is made & refused possession of stolen property is notconsidered wrong.

Thief: runs from the time of the theft, even if property owner was unaware of thetheft at the time that it occurred.

Elements:1. Open and notorious:

Discovery Rule: cause of action will not accrue (SOL will not begin to run) until theinjured party discovers, or by exercise of reasonable diligence and intelligenceshould have discovered, his cause of action and the identity of the adverse possessor

2. Continuous for the statutory period: Generally shorter than real property. The true owner of the chattel must continue to exercise due diligence to discover

the chattels whereabouts in order for the SOL to not start running.3. Actual and exclusive possession


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4. Under claim of right and hostile Solomon R. Guggenheim Foundation v. Lubell:

o believed painting was stolen from its premises by an employee in the late 1960s. bought the painting from a gallery in 1967 & displayed it in her home for more than 20years. claimed that before the demanded its return in 1986, she had no reason to

believe that the painting had been stolen.o H: s failure to take steps to locate the stolen artwork was irrelevant to s statute of

limitation defense.o R: a cause of action for replevin against the good-faith purchaser of a stolen chattel

accrues when the true owner makes demand for return of the chattel and the person inpossession of the chattel refuses to return it (Demand rule)

rejects the Discovery Ruledid not provide a reasonable opportunity forindividuals or foreign governments to receive notice of a museums acquisition and

take action to recover it before their rights are extinguished

Does a true owner who wants stolen/lost chattels returned continue to have the right topursue the property after the SOL has run?o DEPENDS:

who/how did they acquire the property; when was it discovered that it was lost or stolen; when it was discovered who possessed the property; where the property was displayed (public gallery, etc.); thief vs. good-faith purchaser; SOL time period

o Ex: Museum can recover the painting if They discovered the painting was stolen within the time of the SOL and take the

appropriate legal actions;

They discovered the painting in the possession of a good-faith purchaser and theyrequest the item back during the time of the SOL.

Chpt. 3 Property Rights in Human Tissue

Henrietta Lacks - HeLa cellso 1951 - African American woman whose cancer cells contributed to multiple scientific

advancements including the polio vaccine, AIDS research and understandings in cancero Compensation for human body parts?

Blood plasma Sperm/eggs Kidney* Hair Surrogate**

o Policy arguments Economic value Normative: socioeconomic issue with poverty - doing "whatever it takes" for money


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Chpt. 5 Estates in Land & Future Interests - p. 319-321 (probs. 1-3); p. 321-324

Types of Estates (words of limitation - identify the particular type of estate):o Conveyance usually presumed to include the entire estate owned by the grantor.o Fee tail estate

: estate inheritable only by the lineal (biological) descendants of theperson to whom it is granted If the line dies, the estate expires & right to possession passes to the owner of the

next estate (usually the owner of the fee simple) Estate of limited inheritability

Can ONLY be passed to heirs of the body Altered or abolished by statute (four types):

1. Fee tail is abolished fee simple absolute2. Fee tailestate for life in the grantee with remainder to grantees issue living at

his death,per stirpes3. Fee tail not abolished present tenant has power to convey a fee simple

absolute to another (thus effectively destroying the fee tail)4. Fee tail is abolishedstatute doesnt specify the result of a conveyance to A &the heirs of his body.

o Life estate: not inheritable because it expires at the death of the person to whom it isgranted Ex: wealthy & give parents a place to live until they die

o Term of years: lease - expires at a specified date Right to possession reverts to the owner of the fee simple on termination of the

lease

o Fee Simple: right to possession "forever" & continues to the descendants/heirs Estate of general inheritability Can be passed to ANY heirs

If owner dies: Passes under will Intestate? Passes to heirs

Words of purchase: identify the granteeo Heirs: people who take the probate estate (property that the decedent owns at the time

of death) of a person who dies "intestate" (without a valid will). Include surviving spouse of the decedent, the decedent's issue, &, if no issue, the

decedent's ascendants & collaterals.

No one has heirs until they die. Same people inherit both real & personal property from the decedent. If a person dies owning land, does not leave a valid will & has no heirs:

Fee simple escheats to the state in which the land is locatedo The state then owns the property in fee simple.

o Issue: lineal descendants to all degreeso Ascendants: parents, grandparents, etc.


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o Collaterals: other blood relatives Problems: (Identify words of purchase & words of limitation in the following conveyances)

o O conveys to A for ten years, remainder to B for life, remainder to the First BaptistChurch, its successors & assigns. A, B & Church = purchase A term of years; B life estate; Church fee simple.

o O conveys to A for life, remainder to the heirs of B. A & heirs of B = purchase A life estate; heirs of B fee simple

o O conveys to A & his heirs, but if A shall die without issue living at the time of his death,to B & his heirs. A for life (& his issue, if applicable) or B & his heirs (executory interest) = purchase A life estate & fee simple subject to executory limitation; B executory interest

A. Defeasible Fee Simple p. 324-331(N&Q 1-3); p. 332-335 (N&Q 1-3)

Defeasible Fee Simple: granted on condition; subject to being defeated by occurrence of thecondition Fee simple determinable: grantee holds the fee simple "until" a condition happens,

when the grantee's estate terminates & the fee simple automatically returns to thegrantoro "so long as," untilo Until this happens, calledpossibility of reverter

Fee simple on/subject to condition subsequent: grantee holds the fee simple estate"but if" a condition happens, the grantor has the right to reenter the land & take backthe fee simple estate.

o Not terminated automatically - the grantor must reenter & take possessiono Until this happens, the grantor's interest is called right of entry/reentry orpower oftermination

Fee simple on/subject to executory limitation: grantee holds the fee simple estate,but if a condition happens, the fee simple automatically vests in a named third partyo May see "so long as" or "but if" - difference is third partyo O to A, provided A finishes law school. If A does not, to B.o Until this happens, third party's interest is called an executory interestor executory

limitation

Station Associates, Inc. v. Dare County: Man conveyed 10 acres in Dare County, NC to the U.S. via deed in 1897, for use as a life-saving station. In 1957, the land was condemned as part of the outer banks & ceased to

be used for such purpose & the U.S. quitclaimed its interest in the property to DareCounty in 1992. s, his heirs, sued (Dare County), claiming a reversionary interest in

the property. H: property conveyed in fee simple absolute s have no possibility of reverter. R: declined to recognize reversionary interests in deeds that do not contain express and

unambiguous language of reversion or termination upon the condition.


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Mere expression of the purpose for which the property is to be used withoutprovision for forfeiture/re-entry is insufficient to create an estate on condition andthat, in such a case, an unqualified fee will pass.

Any words expressive of the grantors intent that the estate shall terminate on theoccurrence of the event or that on the cessation of use, the estate shall end will besufficient to create a fee simple determinableo No such language in the present deedo The words use and occupy and term are NOT sufficient

Red Hill Outing Club v. Hammond: s (Hammond) quitclaimed a ski slope to (Red Hill) in 1979 on condition that the land

be open to the public for skiing. If failed to provide such facilities for two consecutive

years, the s could reenter & take possession of the property. For two winters, the rope

tow permit was not obtained & the property was closed to all skiing for one winter. H: no right to reenter the mandatory two-year violation did not occur. R: condition subsequent strictly construed

for the to comply with its obligations as skiing facilities, the club needed only tomaintain and make available the premises as a ski slope clubs substantial compliance with the express language in the deed would satisfythe terms of the conditiono Conditions subsequent viewed with disfavor because of their potential to cause

a forfeiture of land Consequences of violating a breach are disproportionate to the breach itself.

Modern Construction of Deeds: Reflect the intent of the parties rather than to follow formalistic rules construing them

against the grantor (or in favor of free use of the land)

Restraints on Alienation & Unenforceable Conditions

Alienation: one's ability to convey or transfer somethingo Restraints on alienation are disfavored because they tend to discourage improvement of

the land and prevent the owner from making the land available for its most valuable use

keeps property off the market Keeps owner's creditors from reaching the land in satisfaction of its debts

o Partial restraints: often void, but may be held valid if the restraint has a legitimatepurpose & its impact & duration are reasonably limited

Ex of legitimate purposes: Right of first refusal: O transfers it to A, but if A decides to sell it, must go to O

first to ask if he wants to buy it. Acceptable if the time allowed for this to happen is limited; if time goes past

statute of limitations - may violate rule against perpetuities Charitable purposes/for public benefit: Provision limiting transfer of

affordable housing to ppl who meet certain income requirement likely to be

valid.

Condition prohibiting transfer to anyone other than a member of thegrantors family is likely to be void.


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Restrictions severely limiting alienability but seldom held invalid as unreasonable: Property only to be used for a park, particular type of church, a school, a ski hill

that gives free lessons.

Not likely to be very marketable/profitable.o Conditions testators impose on their devisees likely to be held invalid:

In re Romeros Estate: Conditions designed to prevent a first marriage or to cause a divorce are void Conditions designed to shift property ownership on remarriage are normally

valid:

Babb v. Rand: condition that the grantee shall never deny access oroccupation of the land to the testators other children was held valid.

City of Palm Springs v. Living Desert Reserve:o Deed is made and accepted on the express condition that be used solely as the site of

the McCallum Desert Preserve and Equestrian Center In the event that the property is

not used as the site of the Center, then the interest in the land shall pass to the Living

Desert Reserve grantee shall forfeit all rights thereto later wanted to build a golf course on the site & offered payment for srevisionary interest; declined. threatened eminent domain: Resolution of necessity public health, safety, and welfare required the

acquisition of s revisionary interest for the purposes of expanding the golf

courseo H: breached the conditions of the deed & must compensate .o R: has been unfaithful to both the Foundations intent and to the spiritof the

conditions under which it accepted the gift

If the donor clearly manifest an intention to make a conditional gift, that intentionwill be honored

Deed expressly states the intent that in a breach of the condition, the shall forfeitits interest in favor of the 3rd party

Deed must be construed as granting to the a fee simple subject to a conditionsubsequent and assigning the a power of termination

Charitable Trust: fiduciary relationship with respect to property arising as a result of amanifestation of an intention to create it, and subjecting the grantee to equitable duties todeal with the property for a charitable purpose.o grantee has no enforcable duties; breach of condition may result in termination of

transferee's interest, but does not subject the transferee to actions for damages or toenforce the condition

Gift of property in fee subject to a condition subsequent: transferred to another on thecondition that if the transferee fails to perform a specified act the transferee's interest shallbe forfeited either back to the transferor or to a named third party.

Differences Among the Defeasible Fees: Adverse Possession, Alienability, & Duration

Usually does not make a difference which type of defeasible fee is used, EXCEPT:


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o Adverse possession: when the condition occurs, the holder of a possibility of reverter orexecutory interest immediately & automatically becomes the owner of the property infee simple absolute. Title held in fee simple subject to a condition subsequent does not change until

the grantor exercises the power of termination.

Even after condition occurs holder remains a rightful possessor. Sligh v. Plair: court held the grantor had waived his right of reentry by waiting 34

years after breach of the condition that the grantee live on the property & 10 yearsafter breach of the condition that the grantee not sell or mortgage the propertybefore he declared a forfeiture.

o Alienability: at common-law for possibility of reverter & right of entry were the same: Both passed to the grantors heirs at death, neither was alienable during the

conveyors lifetime. NOW governed by statute in most states: usually these interests are alienable

inter vivos & devisable by will.

o Duration: governed by statute & Rules Against Perpetuities

B. Life Estates & Remainders: Providing for the Family p. 345-349 (N&Q 1-3) - 371

Life Estates: usually created to provide someone with income/place to live during theirlifetime while assuring that on the life tenants death, the property will go to personsselected by the grantor.o Alienable but, cannot transfer more than what the possessor has.

An estatepour autre viean estate for the life of another Terminates upon the original life estate holders death.

o Livery by seisin: (feudal times) ceremony of conveying land from grantor to granteeby going on the land & having the grantor symbolically deliver possession of the land byhanding over a twig or a clump of dirt.

o Nelson v. Parker: (Nelson) brought suit to eject (Parker), claiming that his fathers deed conveying

land to himself & , upon his death, subject to life estate in did not effectivelygrant a life estate.

H: intent of grantor clearly created a life estate in . R: Reservation in a deed to a third party is valid when the intention of the parties is

patently evident.o Public policy of ensuring grantors intent.

o In Re Estate of Kinert v. Pennsylvania Department of Revenue: Kinert died testate. In her will, granted her foster sons the right to reside in her

residence & use her personal property, using the term terminable life estate if they

fail to pay taxes, insurance & keep the property in the same general state of repair.

H: Kinert expressly granted a terminable life estate to her foster sons.


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R: Intention of the testator is the "pole star" in the construction of a will & that thisintention must be ascertained from the entire language of the will.

Waste

Provides default rules governing the life tenants responsibilities for care & conservation ofthe property.o Life tenant owes certain duties to the remainderman/reversioner:

Preserve the land & structures in a reasonable state of repair Not bound to make expenditures for this purpose exceeding his profits, rent, or

income. Doesnt have to make extraordinary repairs or rebuild structures

damaged/destroyed without his fault or make improvements

Pay the interest on any mortgage Pay current taxes levied on the property Not entitled to damage the inheritance by trashing the house, stripping the top

soil, harvesting healthy timber, or depleting oil & gas reservoirs. Exceptions:

o Open mine doctrine: if property was already being used for mining or oil &gas production before creation of life estate, the life tenant is entitled tocontinue working the open mines & wells

Generally not entitled to open new ones. Entitled to cut wood for firewood, fences, & other domestic use on the premises.

Kinds of Waste:o involuntary (permissive): results from failure to make repairs/pay the ordinary

carrying charges of the property (taxes, mortgage payments, etc.)o voluntary: results from the intentional acts of the life tenant that cause substantial

change to the value/character of the property.o ameliorative/meliorating: if life tenant increases the value of the property by

making permanent changes in its use, substantially altering structures, or buildingadditional structures.

Future interest holders may enjoin the life tenant from making threatenedchanges/require restoration of the property to its previous state, if possible.

o In Re Estate of Jackson: was givenremainder in Jacksons life estate. While Jackson was in nursing home

(continued to pay taxes/insurance), a hail storm severely damaged the house & herinsurance processed the claim. Issue of whether proceeds of insurance for damageshould go to or decedents estate.

H: entitled to insurance proceeds. R: life tenants can use property in any manner so long as they do not act to the

injury of the inheritance.o Obligation to keep buildings & fences in repair from ordinary waste & must pay

taxes.o Jackson was responsible to make necessary repairs to the house and, on her

death, her estate had to fulfill that obligation.


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ISSUE (from class) if the ordinary owner would make the repairs/carrycasualty insurance that covered the losses, the life tenant should be liable fordamage that results to the remaindermen from her failure to do so.

fair to the life tenant? forced to pay for something that may outlasther life interest.

o Hausmann v. Hausmann: had a remainder in s life estate; brought action for waste against for failure to

pay real estate taxes.

H: Breach of a life tenants duty to pay real estate taxes assessed against the landduring his life tenancy gives rise to an action in waste.

R: waste occurs when someone who lawfully possesses real estate destroys it,misuses it, alters it, or neglects it so that the interest of persons having a subsequentright to possession is prejudiced in some way or there is a lessening in the value ofthe land being wasted.o Injunction not an improper remedy, but damages sufficient so that injunction is

unnecessary.

Alienability of Life Estates

Life estate: fully alienable unless subject to a valid restraint on alienation, but a life tenantcannot convey more than he has - an estate that ends when he dies.

o If transferred, the recipient has an "estatepour autre vie" (an estate for the life ofanother)

o Life tenant cannot sell unless the remaindermen or reversioners are willing to join inthe conveyance

Problem arising if some of the remaindermen or reversioners are not yet born oridentified Ex: if remainder goes to life tenant's issue surviving her,per stirpes

(proportionally divided between beneficiaries according to the deceasedancestor's share), the issue who will take cannot be determined until the deathof the life tenant.

o Possible to value a life estate by estimating the remaining life expectancy of the lifetenant & estimating the market interest rate that will prevail over the rest of the lifetenant's life expectancy.

BUT life tenant can live much longer or shorter Interest rate used to estimate returns can be off-base

Court may order sale of property to preserve the interests of the life tenant & future interestholders.o Baker v. Weedon (Miss. 1972): court ordered sale of part of a farm to provide funds to

care for the elderly & economically distressed life tenant.

Remainders, Reversions, & Executory Interests

Follow property interests which are not fee simple absolute


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o Typically follow life estates Divestment: cutting short of an interest in property before its normal termination Indefeasibly Vested: a future interest with no attached conditions & owned by an

identified person.o If the person who owns it dies before the life tenant, the future interest passes to the

heirs or devisees of the owner.o Transferable by a lifetime transfer.

Vested Subject to Complete Divestment: future interest that will be shifted to someoneelse on the occurrence of a conditiono Remainder: divestment will happen if there is an express condition subsequent

attached to the remaindero Reversion: divestment will happen when a condition happens that causes another,

previously contingent, interest to vest.

Contingent: future interest subject to a condition precedent(condition that must happenbefore the remainderman's interest vests.)o Always contingent if remainderman has not yet been born or identified,o Remainders - often contingento Executory interests - nearly always contingento Alternative contingent remainders: provision of two or more alternative dispositions

after the death of the life tenant

Vested Remainders Subject to Partial Divestment: future interest given to a group ofpeople that may increase in size between the time the gift is made & the time it becomespossessory.o Gifts to a class that is subject to open (to admit additional members)

Executory Interests:o Shifting Executory Interests: future interests created to give the property to third

parties when a condition occurred that terminated a prior vested estate in fee simple.o Springing Executory Interests: future interests created that would divest a grantor's

reversion on the happening of a condition.

Long v. Long:o Question regarding possibility of reverter.o Language of the deed does not say possibility of reverter BUT silence indicates its

existence.

C. The Trust p. 372-373

Trust: allows the title of property to be split into two "parallel & simultaneous" titles: Legal: given to the trustee who is responsible for holding & managing the property

for the benefit of the beneficiaries. Equitable: held by the beneficiaries.


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o Useful when unified management is desirable for an asset In which several people have interests. For the benefit of minors, incompetents, spendthrifts, etc.

o Estate planning: process of arranging a person's assets to provide flexibility &protection for the owner & family during life Provide an orderly mechanism for transmitting wealth on to future generations. Dynastic trusts: wealthy people set up for their descendants or other relatives to

last as long as the law allows.

o Restraints on alienation do not apply: Trustee can be directed not to sell the trust property Beneficiary's interest can be subjected to a "spendthrift clause": prohibits the

beneficiary from transferring or borrowing against his interest & prevents hiscreditors from reaching the trust assets.

D. The Rules Against Perpetuities p. 373-390 (N&Q 1,2)

In most states, time limits are placed on the length of time that the ownership of a propertycan remain divided into present & future interestso Split interests:

Make it difficult to sell the property Limit the amount of investments that will be made in the property:

Difficult to get loans to make improvements Present possessor with a limited interest is not likely to want to make

investments that benefit otherso "dead hand": idea that property should be controlled by the living, not by decisions

made by previous owners now gone/dead.

Rule Against Perpetuities: controls the "dead hand" by placing a time limit on contingentinterests & class gifts that are subject to open.o Cannot determine how many people are going to become class members until the

parents of possible class members are dead.

Existing class members can't join with the life tenant to convey a complete feesimple absolute to a prospective purchaser. (someone else could later become a class member & demand his/her share of

the property.)

o Voids certain future interests unless they vest within the lifetime of someone who existswhen the interest is created OR 21 years after they die.

Transactions typically subject to the RaP: Contingent remainder Class gifts subject to open Executory interest Options to purchase (right of first refusal)


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Transactions NOT subject to the RaP: Transfers part of a charitable trust or successive charitable gifts Transfers involving state & local gov't Vested remainders Vested remainders subject to defeasance Possibility of reverter Right of reentry

o RaP? Carefully create a person - O, A, the heirs of A that reach 23. - create an heir of A - X

(who has an interest in the estate)

Kill everybody - O, A, & X Then start the clock running - count 21 years after everyone is dead

See if situation where the interest would not vest if so, RaP.o "pure form"

Destroys all contingent interests & class gifts that will not vest within 21 years afterthe death of an identifiable person who is alive at the time the future interest iscreated.

Reunites all elements of a fee simple absolute in the hands of people who areidentified & have indefeasibly vested interests that they can sell or partition at leastevery 120 years or so (and often earlier.) TOO effective - often destroyed "perfectly sensible" family wealth transmission

arrangements that posed no threat to the public welfare.

o Restatement 1.4: "wait-and-see principle": "wait and see" what happens beforedeciding whether an interest is void.

How long do you wait? At least until the death of the life tenant, & maybe until the deaths of the parents

of potential class members. (Maybe longer.) What do you wait for?

To see whether any of the interests vest, or become certain to vest (or fail),within 21 years after the death of a life in being.

What if they dont? The interests are void.

What happens to interests that violate the Rule? Often reformed to comply with the rule, using the cy pres principle:

o The court rewrites the instrument creating the future interest so that theinterest will vest within 21 years after the death of a life in being Sticking as close as possible to the grantor's intent.

o Statutory by state: "irrebuttable" presumptions that the surviving spouse of a life in being will also

have a life in being - that people above & below certain ages won't have childrenafter the date the future interest is created.

o Uniform Statutory Rule Against Perpetuities (USRAP): Incorporates elements of all the earlier reforms:


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Wait and see, an irrebuttable presumption that a widow is a life in being, andreformation.

Also provides an alternative 90-year vesting period. SHARPLY CRITICIZED, but adopted by at least 25 states.

Criticized mainly because of the 90-year period:o May lead to increased use of long-term term trusts

Also criticized on the inability to reform future interests other than class giftsuntil 90 years have passed.

Principle provisions:1. A nonvested property interest is invalid unless one of the following conditions is

satisfied:

When the interest is created, it is certain to vest or terminate no later than21 years after the death of an individual then alive.

The interest either vests or terminates within 90 years after its creation. The possibility that a child will be born to an individual after the individual's

death is disregarded.

2.

The spouse of a person alive at the commencement of the perpetuities period isconsidered an individual alive when the interest is created (whether or not thespouse was then alive).

3. On petition of an interested person, a court shall reform a disposition in themanner closest to the transferor's manifested plan of distribution & is within the90 years allowed if any of the following conditions is satisfied:

A nonvested property interest becomes invalid under the statutory ruleagainst perpetuities

A class gift is not, but might become invalid under the statutory rule againstperpetuities & the time has come when the share of any class member is totake effect in possession or enjoyment

A nonvested property interest that is not valid under the common-law rulecan vest but not within 90 years of its creation.

o Recent developments: Move to abolish the Rule, at least or trusts where the trustee has power to sell the

assets. SD & Wis. replaced the Rule in the early '80s with a rule invalidating future

interests that suspend the power of alienation for more than lives in being plus30 years.

If trustee is given power to sell the trust's assets, there is no time limit onwhen the beneficiaries' interests must vest.

Many states now allow perpetual trusts to be created. Wall Street Journal report:

Estate plans of the "newly wealthy" increasingly include incentives for childrento behave in ways parents approve.

Ex: provisions to penalize children who do not use prenupts, fail periodicdrug tests, get traffic tickets, etc.

Wealthy have always attached conditions to family trusts, but new incentivesgive new meaning to "dead-hand control."

o Exemptions from the Common Law Rule Against Perpetuities


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Does not apply to future interests held by governmental or charitable organizationsso long as the property vests in some qualified organization within the common-lawperiod. Examples:

O conveys Blackacre to State University (SU), but if SU fails to use Blackacrefor agricultural research purposes, Blackacre shall pass to the NatureConservancy (NC).o Executory interest given to NC is valid because NC is a charitable

organization & the present fee simple is vested in another charitableorganization.

O conveys Blackacre to A, but if Blackacre is not used for agriculturalpurposes, then to the NC.o Executory interest given to the NC is void because A is not a charitable

organization & the condition vesting the executory interest will notnecessarily occur within lives in being plus 21 years.

Exempts possibilities of reverter & rights of entry from the Rule The Rule is very poorly suited to address problems caused by "options in gross"(commercial options to buy property in the future.) BUT, frequently applied to invalidate them. Lawyers who draft options in gross should "know enough" to limit the period in

which the option can be exercised to 21 years or within 21 years of somespecified person's death

USRAP exempts most future interests created in non-donative transactionsfrom the Rule

Chpt. 6 Landlord-Tenant

A. The Landlord-Tenant Relationship p. 403-407

1. The Leasehold Estates

Four common-law leasehold estates:o Estate for years: tenancy measured by a fixed duration

May be one day or 20 years - measured by time

Ends automatically at the end of the period Created expressly by the parties

Under Statute of Frauds in most jurisdictions, must be in writing if the periodexceeds one year

o Periodic tenancy: tenant holds for the initial period & for successive periods of thesame duration until the landlord/tenant terminates the lease by giving appropriatenotice

Continuous - rolls over from period-to-period automatically


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May be created expressly; most created by implication To terminate:

Notice must be given with some precision Year to year requires half year's notice unless statute permits shorter notice Less period than from year to year requires notice equal to the length of the

period Must terminate at the end of a period, not the middle

o Estate at will: agreement including a provision that either the landlord or the tenantmay terminate the arrangement at will.

Also - any other arrangement where a tenant takes possession of the landlord's land,either express or implied.

Statutes usually provide that notice equivalent to the period between rent paymentsis required to terminate.

Automatically terminated if: Either party dies Or if the landlord conveys his interest

Statutes frequently provide that a tenant in this situation cannot be evictedfor some stipulated period.o Estate at sufferance: a way to describe the wrongful possession of land by a tenant

who improperly holds over at the end of his lease.

Landlord has choice to either: Treat the holdover tenant as a trespasser subject to eviction Or as a tenant for a new valid tenancy who must pay rent

2. Themes in Current Landlord-Tenant Law(pretty much public policy) Conveyance or contract?

o Lease contract between the landlord & tenant for the purchase of space & services. Dual nature incorporating features of both conveyances & contracts

Statutes:o Increase in legislation governing landlord-tenant lawo Transformation of residential landlord-tenant relationship

Pervasive regulation of its incidents habitability issue rent regulation, security of tenure for the tenant, &

qualification of landlords traditional rights to alienate the freehold or to convert it

to another use.

Residential/Commercial Dichotomy:o Special recognition to residential tenants in disputes with landlords

Reflecting desire to provide habitable shelter & to regulate evictions of tenants fromtheir homes.

Reflects assumption (NOT always accurate) that a landlord has greater economicpower & skill than the residential tenant.


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o Commercial lease: typically viewed as a free-market transaction between parties withequal bargaining power & skill (again, NOT always accurate)

Generally enforced as any other consensual arrangement Trumping the Bargaining Process

o Courts sometimes faced with choice btw enforcing a lease as written or altering/voidingits terms out of concerns for fairness. Outcome depends on legal standards of jurisdiction, judicial attitude & philosophy &

particular facts of the case before it.

o Favoring enforcement of the exact terms of the lease contractfreedom of contract Free market allocation of goods & services best serve the public interest Parties have relied on the written agreement Moral considerations require that one be bound by ones undertakings

o Attacking lease provisions & refusing to enforce them Factors a court will take into consideration:

Partys relative lack of bargaining power/sophistication No meaningful alternatives Usually due to standardized lease provisions/shortage of alternative

housing

Terms that are unreasonably favorable to the other party A lease may be voided because itviolates public policy

Ex: court held $60 monthly late penalty on residence with monthly rental of$150 was unconscionable.

Drafting & Counseling: good drafting may avoid many landlord-tenant disputes

B. Landlords Obligations & Tenants Remedies

1. Duty to Deliver Possession

"American rule on whether the landlord must put the tenant in possession of the premisesif the lease is silent on the questiono Implies an undertaking by the landlord to give the tenant the legal right to possession.

Trend has favored the English rule through new statutes:o Uniform Residential Landlord & Tenant Act:

Requires that the landlord "deliver possession" to the tenant at the start of the term.o

N.Y. Real Prop. Law: In absence of express provision to the contrary, there shall be implied in every leaseof real property a condition that the lessor will deliver possession at the beginningof the term.

In the event of breach: lessee shall have the right to rescind the lease & torecover the consideration paid.

Teitelbaum v. Direct Realty Co.:


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o (intended tenant) sued for failing to deliver possession of a store s leased from .(The previous tenants refused to move out, claiming renewal of their lease by oralagreement.)

o H: s not entitled to recovery from for failing to deliver possession.o R: it is not the duty of the landlord, when the premises are wrongfully held by a third

party, to take the necessary steps to put the lessee in possession.

Previous tenants wrongfully withheld possession from the s. did not refuse to deliver possession to , nor was possession withheld or hindered

by an act of the .

did more than was required in attempting to deliver possession. Not a case where the landlord tried to give possession when he had "no

authority to do so."

2. Duty to Protect the Tenants Quiet Enjoyment: Constructive Eviction

Constructive eviction: a landlord's act of making premises unfit for occupancy, often withthe result that the tenant is compelled to leave.o

Landlords conduct not intent is controlling Conduct of third parties on premises is attributable to the landlord if the conduct

could be legally controlled by him

Usually tenant mustmove out Places greater burden on low income tenants bc of shortage of habitable, low-

cost housing makes it unlikely that the vacating tenant could find alternativeaccommodations.

Puts all tenants in difficult legal position If tenant moves out, claims constructive eviction & fails responsible for

two leases

FEW decisions that reject the move out requirement Allow rent abatement for landlords breach

o BUT - not every act or failure to act on the part of the landlord that causes disruption toa tenant rises to the level of a constructive eviction.

The act must have "some degree of substance & permanence of character" Conduct that does not make the premises untenantable for the purposes for which

they were used will not constitute constructive eviction.

Breach of Lease by tenant:o Illegal use of property:

Common-law: if a tenant undertakes an illegal use of the property & landlord is nota party to the illegality, tenant may be liable in damages & subject to an injunction

Many jurisdictions statutes permitting eviction for illegal use. For low-income housing eviction permitted even if tenant was not personally

aware of drug activity (under Anti-Drug Abuse Act of 1988)o Antisocial behavior breaching the lease:

Statutes allowing eviction for tenants removing batteries from smoke detectors ifnot replaced within 90 days of court order.

o General nuisance principles: May allow eviction in some jurisdictions


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Covenant of quiet enjoyment: protects against disturbance of the tenants possession bythe landlord or persons claiming under him.o Breached when:

the landlord actually evicts the tenant in violation of the leasehold (i.e. locking thetenant out of the premises).

Tenant is constructively evicted from the premises (even though the landlord didnot physically oust the tenant).

Tenant could bring action for damages against the landlord for breach of theimplied covenant of quiet enjoyment.

o Blackett v. Olanoff: (Blackett, landlord) brought actions for rent against s (tenants), who successfully

argued constructive eviction as a defense. s also rented property to a lounge nextto the apts that played music late & had fighting patrons.

H: s successfully defended rent action from on basis of constructive eviction R: s had it within their control to correct the condition which caused the s to

vacate their apartments.

s introduced a commercial activity into an area where they leased premises forresidential purposes. Lease for the lounge expressly said entertainment could not be heard outside

and would not disturb the residents of the apartments. Potential threat to the occupants was apparent in the circumstances.

s complained to the lounge after receiving objections from s. Noise level acceptable to lounge & its patrons was intolerable for the s.

Because the "disturbing condition" was the natural & probable consequence ofthe s allowing the lounge to operate where it did & because the s couldcontrol the actions at the lounge Not entitled to collect rent for residential premises which were not

reasonably habitable.

Mutually Dependent Covenants: (adopted from the Restatement)o If the landlord fails to perform a valid promise contained in the lease to do/refrain from

doing something & as a consequence, the tenant is deprived of a significantinducementto the making of the lease, & if the landlord does not perform his promisewithin a reasonable period of time after being requested to do so, the tenant mayterminate the lease.

"dependence of obligations" doctrine requiring the landlord to fulfill his obligationsfor condition of the leased property.

Sufficient for the tenant to show the landlord's failure, after notice, to perform apromise that was a significant inducement to the tenant's entering the lease in thefirst place.

Applies to commercial leaseso Wesson v. Leone Enterprises, Inc.

(Wesson, landlord) sued (Leone, tenant), alleging breach of contract. counterclaimed for constructive eviction. ran a financial printing company &

complained to on multiple occasions for leaking & excessive need for repairs,

which unsuccessfully & inadequately attempted to fix.


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H: 1. No constructive eviction, BUT, 2. allowed to terminate the lease & recoverrelo costs.

R: 1. Evidence inadequate to show that the leaks made the premises untenable forthe purposes for which they were used. BUT:

2. Significant inducementin this case was a dry space in order to safelyconduct the high tech printing business.

3. Condition of the Premises: The Warranty of Habitability

Rule: The tenants obligation to pay rent is dependent upon thelandlords performance ofhis obligations, including his warranty to maintain the premises in habitable conditiono Appeal in a landlord/tenant action continue to pay rent, security deposit, etc.

otherwise the tenants will cease to pay rent to the landlord.

Javins v. First National Realty Corp. (pg. 426)o Issue:Whether housing code violations, which arise during the term of a lease, have any

effect upon the tenants obligation to pay rent.o

Holding: YES!!! Overruling old common law no-repair rule (that the lessor is notobligated to fix anything in your apartment unless he specifically agrees to do so in thelease)

The common law must recognize the landlords obligation to keep his premises in ahabitable condition

The old rule was based on certain factual assumptions based which are nolonger true

The consumer protection cases require that the old rule be abandoned in orderto bring residential landlord-tenant law into harmony

The nature of todays urban housing market also dictates abandonment of theold common law rule

Courts have created exceptions to the general rule that landlords have no duty tokeep their presence in repair Todays urban tenants are interested solely in a house suitable for occupation

C. Tenant Duties & Landlord Remedies

A. Duty to Preserve the Premises

A tenant may occupy and use the demised premises in any lawful way not materiallydifferent from the way in which they are usually employed, to which they are adapted andfor which they were constructed

Permissive waste occurs when a present interest holder hails to take reasonable steps topreserve the property owner of the future interesto Ex: tenant did not replace a window broken in a storm so that water damage later

resulted to the interior walls

tenant liable under the implied duty to repair or permissive waste concept Tenants duty to repair may be limited or enlarged by express agreement EXCEPT where

the tenant may not waive an obligation on the landlord created by statute or case lawo Tenants obligation may be found in an express repair clause or in the surrender clause

that specifies the condition of the premises at the termination of the lease


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Jurisdictions vary on interpretation Courts engage in contract interpretation and to determine the parties intent in

light of the language, circumstances, and constructional rules

Sigsbee Holding Corp. v. Canavan:o (landlord) sought final order of eviction bc (tenant) replaced old, used cabinets with

new ones. claimed this constituted waste & violation of substantial obligation of thetenancy.

o H: no recovery for o R: no proof that the improvement made by the tenant involved an injury to the

reversion (in fact, enhanced its value).

No proof that it constitutes a substantial & permanent change in the nature &character of the building premises.

B. Duty to Operate

Piggly Wiggly Southern, Inc. v. Heardo Issue: whether the lease agreement between the parties contained an express covenantof continuous operation

o Holding: NO!!! The lease agreement between the parties does not contain an expresscovenant of continuous operation

Lease language: property may be used for any other lawful business withoutconsent of the lessor

The lease agreement does not contain any provision which would create an impliedcovenant of continuous operation

The lease allows for free assignation by the lessee without the consent of the lessorruns contrary to the purpose of any implied covenant of continuous operation

The provision in the lease for payment of a minimum base rent, in addition to theprovision of rent as a percentage of gross sales, suggests the absence of any impliedcovenant of continuous operation

The parties did not specifically agree to a covenant of continuous operation, theCourt could not substitute such an agreement

Prevailing attitude of courtsthe existence of substantial minimum base rent is astrong factor AGAINST implying a covenant of continuous operation

o Waste: commissive v. permissive Commissive: you have done something to cause the waste Permissive: you have failed to do something that would normally be done

Chpt. 7 Concurrent Ownership & Marital Property

A. An Overview of the Concurrent Estates: Alienability

Tenancy in Common: "residual form of ownership"o Used if no other form is specifiedo Fully alienable: can transfer their interests independently of one another during life


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Interests pass by wills or intestate succession at deatho Typically no designation as to how it's dividedo Example:

A & B own Blackacre in fee simple absolute as tenants in common. A dies leaving awill transferring his property in trust for the benefit of his spouse & issue.

Result: An undivided one-half interest in Blackacre passes under A's will. Thetrustee & B hold Blackacre as tenants in common.

Joint tenancy with right of survivorship: trustees when no other form of ownership isspecifiedo Fully alienable during life of the tenant

If transferred, interest converted into a tenancy in common Destroys the survivorship right

o Inalienable at death Property "remains" with the survivor.

When a joint tenant dies, it is an "extinguishment" of the burden from the otherjoint tenants' interests (rather than as a passing of the deceased tenant's

interest to the survivors). Claims usually made against the property of a decedent by tax collectors,

creditors, & family members, etc. may be avoided

Cannot be transferred by will Does not pass by intestate succession

o Each joint tenant owns the whole, rather than fractional, interest in the propertyo Example:

A & B own Blackacre as joint tenants with right of survivorship. A dies leaving aspouse & children. A's will leaves all his property in trust for the benefit of hisspouse & issue.

Result: B owns all of Blackacre. No interest in Blackacre passes under A's will.

Tenancy by the Entirety: right of survivorshipo Cotenants cannot transfer their interests independently

Without getting a divorce, cannot acquire the right to: Sell individual interests in the property, OR Dispose of interest by will without joinder of both spouses

o Example: H & W own Blackacre as community property. H transfers his interest in Blackacre

to C. H then dies. H's will leaves all his property to State University.

Result: W owns Blackacre. H has no power to transfer Blackacre either in life or bywill unless W joins in the transfer.

Community Property: only open to married couples or registered domestic partners in CA.o Can only be transferred during life if both spouses join in the conveyance

Can be disposed of by willo Example:

H & W own Blackacre as community property. H transfers his interest in Blackacreto C. H then dies. H's will leaves all his property to State University.


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Result: State University & W own Blackacre as tenants in common. H cannotunilaterally transfer his interest in Blackacre during life but can transfer it by will.

B. Problems with Sharing Possession

Cotenants own "undivided" shares in the lando Each cotenant has the right to possess & enjoy all the land

None of them have the right to exclude the others. No one is legally "in charge"

o A cotenant who assumes responsibility for managing the property is not entitled tocompensation

o Each cotenant is entitled to possession of the entire property - responsible to his/hershare of necessary maintenance expenses

No mechanism for collective decision making Tenants by the entirety & community property owners:o Law offers almost no help: if they can't agree on management or disposition of the

marital property, the court will divide it between them on divorce.

Tenants in common & joint tenants:o Law offers "litter more"

Each cotenant can sell his/her share of the property, individually, but they all haveto agree to sell the whole thing.

If they can't agree, the court will, on petition of any cotenant, either:o physically divide the property among them, OR:o Action of partition: order the property sold & divide the proceeds

Favoring the cotenant attached to the land. In deciding how to partitionland, not unusual for a court to give more weight to the interests of acotenant who has a particular attachment to the land.

Courts inclined to award cotenants parcels that are adjacent to otherland they own or that include improvements made by the cotenant.

Zoning & planning considerations. If partition in kind would result in lotsthat violate the applicable zoning ordinance, partition by sale will beordered.

Owelty. Offsetting payments to compensate the differences in parcels ofunequal value following partitioning in kind.

o Lesser remedies: Action for accounting for rents or profits received by another cotenant

Statute authorizes this action by any cotenant against anothercotenant "for receiving more than comes to his just share orproportion."

Action for contribution for advances made to pay another cotenant'sshare of taxes, mortgage payments, & necessary maintenance expenses

Any cotenant can make improvements to the property, but the others are notrequired to contribute


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Action for waste may be available for damage done to the property by onecotenant, BUTo Exploitation of natural resources: ordinarily gives rise to an action for

accounting for profits rather than an action for waste (a cotenant, unlike a life tenant, usually has a fee simple & a right to

exploit the natural resources on the property)

However, on partition, the improving cotenant is entitled either to the part ofthe property that has been improved OR to the increase in value of the propertydue to the improvement.

BIG question: Whether a cotenant who uses or occupies the property has to account to the

others for the value of her use or occupation.o MAJORITY RULE: she does not, unless she "ousts" the other cotenants.

BUT, ousted cotenant is liable for his share of the taxes & other carryingcharges, even after the ouster.

Most states:

Also allow the cotenant who is not in possession to claim a credit, oroffset, for the value of the occupying cotenant's use or occupationagainst his liability for contribution to the carrying charges of theproperty.

Laws involving ouster are very flexible & inconsistent: Overall effect coupled with the majority rule allowing offset of the

value of the occupying cotenant's possession in an action forcontribution practically nullifies the rule that any cotenant mayoccupy the premises rent free regardless of the size of the economicstake in the property.

Martin v. Martin:o Whether one cotenant is required to pay rent to another cotenanto H: NO!! Not unless there was an ouster or an agreement to payo R: The s occupancy of 1 of the 4 lots did not amount to an ouster

An ouster must amount to exclusive possession of the entire jointly held propertyo Rule: a cotenant is not liable to pay rent to other cotenants unless there was an ouster

(wrongful dispossession) or an agreement to pay If theres a dispute between the 2 tenants and one of them says you owe me

something and the other says no I dont, he court is going to look at the

agreement (if any) between the parties and see what was physically done

Yakavonis v. Titlon:o Ouster: occurs when a cotenant obtains sole possession of the land that is adverse to the

other cotenants, where the cotenants repudiates or disavows the relation of the co-tenancy or where the tenant without permission is aware of the actions by the tenant inpossession that signify his or her intention to hold, occupy, and enjoy the premisesexclusively


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Must be an assertion of a right to exclusive possession Where the property is not adaptable to double occupancy, the mere occupation of

the property by one cotenant may operate to exclude the othero Rule: If one cotenant pays taxes and other maintenance charges for the property, she is

able to deduct the amount of another tenants use and occupation (from the point ofouster) from the amount she is required to contribute

Delfino v. Vealencis:o Rule: Partition by sale is adequate only where it best promotes the interests of the

parties and where division of the land is impracticableo Courts favor a partition in kind over a partition by saleo Requirements for a partition by sale:

The physical attributes of the land are such that a partition in kind is impracticableor inequitable

The interests of the owners would better be promoted by a partition by sale Burden is on the party requesting a partition by sale to demonstrate that such a

sale would better promote the owners interests

oThe court must consider the interests of all tenants in common and not merely theeconomic gain of one tenant

C. Joint Tenancy with Right of Survivorship: Creation & Severance

Very popular today bc it provides a cheap & accessible will substitute:o Passes property to the surviving joint tenant without the expense or hassle of probate

proceedingso Usually passes the property free of any debts created by the deceased joint tenant.

Drawbacks:o If the owner of property places it into joint tenancy with another (except joint bankaccounts), an immediate gift is ordinarily made of an undivided 1/2 interest in the

property.

Donee can immediately sell/transfer his/her interest in the property, or seekpartition, regardless of the interests of the donor.

Creditors of the donee may also reach the donee's interest in satisfaction of ajudgment lien.

o Survivorship right may be susceptible to destruction in unexpected ways: Any joint tenant can deliberately destroy the survivorship right by converting

his/her interest to a tenancy in common. (not always a problem), BUT

By entering into a lease or mortgage w/o the joinder of the other cotenants, onecotenant can destroy the survivorship right w/o intending to & w/ounderstanding that the destruction has occurred until it is too late (i.e. thetenant's death).

Arises out of the "four unities" "Four Unities" - requirements for creating & maintaining a joint tenancy:

1. Time - interests of the joint tenants must vest at the same time.2. Title - joint tenants must acquire their interests by the same instrument.


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3. Interest - joint tenants must have estates of the same type & duration.4. Possession - joint tenants must have undivided interests in the whole.o Modern courts usually are able to go off the parties' intent to create a joint tenancy so

long as they have complied with the Statute of Frauds:

To create or transfer an interest in land, a written instrument is required. Downing v. Downing:

o Rule: a mortgage executed by all joint tenants does not sever the joint tenancyo Issue: whether the right of survivorship remains (yes if its joint tenancy [which favors

sons position], no if tenants in common)o Holding: YES!! A mortgage executed by all joint tenants does not sever the joint tenancy;

none of the unities are destroyed and there is no reason why the joint tenancy shouldnot continue

Crucial distinction between a joint tenancy and a tenancy in common is the right ofsurvivorship identified with a joint tenancy

When a deed uses the words joint tenants, the language can be sufficient toestablish that the property granted is to be held in joint tenancy

The mere fact that Helen might have given Myers the right to farm does notpreclude a joint tenancy

The mere temporary division of property held by joint tenants, without anintention to partition, will not destroy the unity of possession and amount to aseverance of joint tenancy

People v. Nogarr:o Rule: a mortgage does not destroy any of the unities of title under joint tenancyo Issue: whether execution of a mortgage by one joint tenant terminates the joint tenancyo Holding: NO!!

Mortgage did not destroy any of the unities and, therefore, the estate in jointtenancy was not served and Elaine and Calvert did not become tenants in common

Severance by mortgage would turn the joint tenancy into tenants in commonbetween the husband and wife (this changes the husbands interestit can beforeclosed on). After the condemnation, the parents would have each and towife.

But thatdoesnt happen here because the court says the transfer by the husbanddidnt destroy the joint tenancy because it was only a lien on his interest

Terminates upon his death, nothing more to attach to wife owns the propertyin fee simple

o Lien: claim on the property (husband takes out a loan from parents and gives them amortgagethis doesnt amount to a claim on property)

o Title theory of property: if you gave someone a mortgage, you would give them title insome conditional sense and this conditional interest was extinguished when you paidoff the loan, but theres no interest in the title in the mean time.

Modern approach lien; does NOT destroy joint tenancy Risk is that if the mortgagor dies, the interest goes up in smoke

Smolen v. Smolen


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o Issue: Wife claims that the divorce decree creates a joint tenancy that provides her aright of survivorship

o Holding: The language of the divorce decree does not prohibit the future transfer oralienation of the propertyMartin (husband) severed the joint tenancy when heconveyed his interest to the trust

This transfer severed the joint tenancy and created a tenancy in common with thenew joint tenant Jason (sole beneficiary and successor trustee)

Martin possessed an interest in the joint tenancy and a power to transfer thatinterest and sever the tenancy.

Transfer did not violate the common law or the divorce decree Effect of divorce on joint tenancy

o A decree of divorce need not affect title to land other than property held as tenants bythe entirety or community property

Courts have seldom relied on the continued existence of the 4 unities in resolvingthe question

Most decisions are based on the intent of the parties rather than the 4 unities Unilateral severance of joint tenancy

o Riddle v. Harmon court held that had terminated a joint tenancy between herselfand her husband by a deed that granted herself an undivided interest in the propertyas tenant in common and recited that the purpose of the deed was to terminate thejoint tenancy with her husband

D. Marital Property

1. Rights of One Spouses Creditors to Reach Marital Property

Common law regard each person's earnings as his or her own, regardless of maritalstatuso Married people own their property individually unless they choose to put it into tenancy

in common, joint tenancy, or tenancy by the entirety

Community property regard the earnings of married people as belonging to thecommunity comprised of the married coupleo Property acquired by married people during marriage, EXCEPT that acquired by gift,

devise, or inheritance, is community property, unless they choose to covert it intoseparate property and hold it individually, as tenants in common, or as joint tenants

o Spouses hold equal undivided interests in community property


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o Although spouses may convert community property into separate property, there is astrong presumption that any property possessed during the marriage belongs to thecommunity

Sawanda v. Endo:o Issue: whether interest of one spouse in real property, held in tenancy by the entireties,

is subject to levy and execution by his or her individual creditorso Holding: No!! The conveyance of the marital property by husband and wife to their sons

was not in fraud of the husbands judgment creditors.

Even if it was fraudulent, the judgment creditors still could not attach to the tenancyby the entirety

U.S. v. Craft

Chpt. 14 Land Use Regulation & Its Constitutional Limits

A. Regulation: When Does it Go Too Far?

1. The Early Cases

Pennsylvania Coal Co. v. Mahono Rule: Property may be regulated for public health, welfare, and safety but if the

regulation goes too far it will be considered a taking requiring just compensation

Under the 5th Amendment, private property that is wanted for public use shall notbe taken without just compensation

Property may be regulated to a certain extent, but if regulation goes too far it will berecognized as a taking

Discourse analysis


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o Focuses on the arguments made in cases, recognizing that many arguments are notreally determinative, but they provide frames for looking at complex fact situations indifferent ways

o Forces legal thinkers to confront the fact that there are few, if any, bright-line legal rulesin this area

Miller v. Schoeneo The state entomologist ordered Plaintiffs to cut down a large number of ornamental red

cedar trees growing on their property, in order to prevent the spread of a rust or plantdisease to the apple orchards in the vicinity

o Issue: when two classes property exist in dangerous proximity, may the state choose topreserve one, which is of greater value to the public over the other?

o Holding: YES!o Rule: the public interest outweighs the property interest of the individual, and the state

may use its police power to preserve the public interest, even if that means propertymust be destroyed

2. Zoning as the Paradigm Land Use Regulation

Village of Euclid v. Ambler Realty Co.:o Issue: Under federal law, does the ordinance establishing the zoning violate the 14th

amendment (i.e., is the ordinance invalid in that it violates the constitutional protectionto the right of property) when there are attempted regulations under the guise of thepolice power, which are unreasonable and confiscatory?

o Holding: NO!! The ordinance must be for the benefit of the public welfare Determined not by an abstract consideration of the building considered apart, but

considered in connection with the circumstances and the locality

Zoning laws v. Nuisance lawso

Both are state interventions in private land use decisionso Both tend to order land use decisions favoring the status quo, for good or ill, favoring

the present use over the changed use

o Nuisance: A land use conflict has already occurred Deals with a negative situation, sometimes arranging results for the least cost by

putting the costs on the least cost avoider

Usually on the immediate neighbors can sue for interference or invasion Who can sue is closely connected to what degree of invasion is necessary When both users are residential, the land use conflict appears more like a

mutual competition for the same limited resource RARELY provide public goods

o Zoning: The creation of districts or zones, together with comprehensive plans, is intended to

avoid conflicts from occurring in the future

Sometimes attempts to augment the current situation to make things better Ex: requiring that trees be planted


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Any member of the public can bring a complaint that the ordinance has beenviolated and the city takes over the responsibility of investigation and enforcement

Zoning laws can do several things that nuisance laws cannot Zoning can provide for public goods

Ex: sidewalks, parks, schools, libraries, etc. Frequently, to get a zoning permit, the permit seeker must provide a certain

measure of shared public goods

Zoning can set new standards for land use and it can deal with multiple partiesrights and obligations simultaneously

Zoning is less costly for the individual property owner because enacting localordinances is done by public hearings and you need not hire a lawyer to pressyour views

o Is compliance with zoning a defense to a nuisance action? NO! A use can comply with zoning and still constitute a nuisance

Zoning is NOT intended to be the exclusive determinant of land use patterns Zoning is NOT intended to usurp common law rights

Dolan v. City of Tigardo Rule: When a city requires a landowner to convey some property to the city as a

condition to obtaining a permit, there must be a rough proportionality between theburdens on the public that would result from granting the permit and the benefit to thepublic from the conveyance of land

o Issue: does an impermissible taking of property occur when a city requires a landownerto convey property to the city in order to get a permit to redevelop property?

o Holding: YES!! Must determine whether the essential nexus exists between the legitimate state

interest and the permit condition exacted by the city

If the nexus exists, then a determination must be made as to the required degreeof connection between the exactions and the projected impact of the proposeddevelopment

There must be a rough proportionality between the demands of the city andthe impact of the proposed developmento The prevention of flooding and reduction of traffic are legitimate public

purposes, and a nexus exists between preventing flooding and limitingdevelopment

For the rough proportionality test, the city must make an individualizeddetermination that the required dedication is related both in nature and extent tothe impact of the proposed development

The city has never explained why a public greenway, as opposed to a privateone, was required in the interest of flood control

Petitioner has lost her ability to exclude others, which is one of the mostessential sticks in the bundle of property rights

Documents

Pro Outline