FIRST POSSESSION OF PROPERTY Discovery Discovery rule (Johnson v. McIntosh): political rule that all European nations adhered to and recognized.

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1 FIRST POSSESSION OF PROPERTY Discovery Discovery rule (Johnson v. McIntosh): political rule that all European nations adhered to and recognized. Discovery of land gave title to whatever European government discovered it, regardless of the natural inhabitants, and against all other European governments. Indians owned possessory/occupancy rights. Two principles: 1) first in time (first person to take possession owns the thing) 2) Locke s labor theory: one owns one s labor. Property rights are established by changing the law in some manner. Capture Can own something by being first person to possess it and have absolute control over it Capture Rule (Pierson v. Post (fox)): become property once captor exercises dominion and control. Capture is required; mere pursuit is not enough (Mortally wound, kill or capture) (traps = constructive possession) Wild Animals: On private property, belong to the owner. Trade Rule (Keebler v. Hickeringill (ducks)): a person may not maliciously prevent another from capturing wild animals in pursuit of his trade. Fugitive resources rule: whoever drills and obtains it first owns it, even if it is on another s property. Policy: rewarding capture promotes competition by effectiveness. Finders keepers is easier to protect over pursuit. Creation Property rights in one s ideas, expression, and intellectual property. patents, copyrights, trademarks Creation Rule (AP News v. INS): party may have a quasi-property interest in un-own-able property to prohibit unfair competition. (AP had a property interest against other competitors, not against the general public, because it was providing a socially useful service). Policy: ensuring one gets the value of his labor. Imitation Rule (Cheney v. Doris Silk): you can copy/imitate ideas to encourage competition, but not copy the expression of them. Imitation is allowable. Policy: encourage people to create and promote competition, and avoid monopolies. Right of Publicity: (White v Samsung): Protects against the use of name, etc. for advertisement with no consent Property in Body Parts Rule (Moore v. UCLA): people do not have ownership in their own body parts that are removed by doctors, even if the doctors profit from the body parts. Policy: restrict sale of property that should not be sold out of desperation. Don t want to impose tort liability on scientists for line of consent. Exclusion Issue: whether A has a right to use/be on B s property. The most essential element of property ownership. Right to Exclude Rule (Jacque v. Steenberg Homes): property owners have an exclusive right to exclude others so long as the exclusion does not injure the rights of others. Policy: Property owners have a strong interest in keeping others off their land (mobile home case) Reliance interest Rule (State v. Shack): if the rights of another are injured by exclusion, the court will not allow owner to exclude. Not free to unconditionally revoke access. Ex.: immigrant worker case. SUBSEQUENT POSSESSION OF PROPERTY Finding: The true owner will always prevail, unless he has abandoned the property. Types of Property, by intent of the true owner: Lost property: carelessly or involuntarily parted ownership. Mislaid property: voluntarily relinquished by owner, who intends to get it back but forgets. Abandoned: owner intentionally parts with property, giving up title and possession voluntarily.. Finders general rule (Armory v. Delamirie): a finder of lost property acquires title to that property against everyone else except for the true owner (lost, mislaid, abandoned, treasure). True owner always prevails. [chimney sweep case] Possession rule (Hannah v Peel): for possession, there must be physical control over the property and intent to assume dominion over it. In your hand, you own it. Facilitates true owner s search. (Brooch case) Finder versus Owner (Cases cited in Hannah) a finder owns an unattached, un-embedded object if 1) the owner had no prior knowledge of the object and 2) the owner is not in physical possession of the property. Embedded object: possessor of the land is entitled as against finders. To whomever owns the soil, so owns the depths and the sky. (Elwes) Finder Employee: if finder finds the object in the scope of his employment, he has a duty to report and give found object to the employer. (South Stafforshire) Public place: Lost property goes to a finder (Bridges v. Hawkesworth, money found on floor of shop). Mislaid property goes to the owner of the public place (McAvoy v. Medina). ADVERSE POSSESSION. Adverse possession: a method of transferring interests in land without consent of the prior owner, and even in spite of dissent by him. APer acquires title at the time the record owner brings an action for ejectment, but the record owner s claim is barred by SOL. Policy: Restricts time to bring aging claims, Land is highest and best use. AP Elements (Brown v. Gobble (fence/road)): 1) Statute of limitations: usually years, 2)

2 Hostility: true owner did not give permission (Objective standard: state of mind of APer is irrelevant), 3) Actual Possession: used the land like a true owner would possess and use (objective), 4) Open and Notorious: possession was sufficient to give the true owner notice that the APer is claiming the property (objective, rep in community), 5) Exclusivity: no one else is permitted to use or claim ownership property used only by the APer, 6) Continuity: continuous use, similar to actual use, 7) Claim of Title: APer claims possession without actual title ownership (state of mind) SOL / Privity requirements Tacking Rule (Howard v. Kunto): When there is a legitimate successive relationship between the owners (privity), and each prior possessor is able to prove the AP elements, then tacking can accrue to defeat the SOL requirement. Tacking permitted when owners mistakenly omit deed information. Privity: predecessors in interest: blood, contract, deed or title, or will. Continuity rule (Howard v. Kunto): if an ordinary owner would use the property the same way the claimant does, then continuity is sufficient. Ex.: if property would normally be used as a vacation home, then APer doesn t need to use it more than a vacation home to establish continuity. Defense to SOL: 1) disabilities, the SOL is tolled until disability is removed, and it must be in place at time APer enters the property. No tacking disabilities. Unsound mind, minority age, prison. Minor Encroachment Rule (Manillo v. Gorski): When AP is a minor encroachment, must have actual knowledge of the minor encroachment, not constructive notice, to meet the O/N requirement. (15 is minimal, 24 is not (brown)) Equitable Hardship Doctrine: Court will apply relative hardship doctrine to determine remedy in AP even if it doesn t meet the AP; unfair to require dismantling of a whole house balance hardships among neighbors Adverse Possession of Chattel. Same elements as AP. Discovery Rule (O Keefe v. Snyder): the SOL does not begin to run so long as the true owner continues in due diligence to look for the goods. The cause of action accrues when the true owner knows or should have known facts which form a basis of cause of action. Exertion of reasonable due diligence. Demand rule (Guggenheim v. Lubell): the SOL does not begin to run until the true owner makes a demand for the property and the good faith purchaser refuses. NY Rule Gifts. Issue: whether A has received a gift of chattel from B. Gift: a voluntary, immediate transfer of property without consideration from one person to another. Inter vivos: gifts made during a donor s life when death is not imminent. Causa mortis: gifts made in contemplation of immediate-imminent death. o This type of gift is revoked if the donor recovers from the illness that prompted the gift. Gift intervivos - three elements: Intent (Newman v. Bost (keys/bureau)): irrevocable present intent to transfer required. Donor must have capacity to form intent. No subjective intent (this would defeat purpose of giftgiving). Delivery (Gruen v. Gruen (painting)): donor must deliver chattel to donee. Donor must feel the wrench of delivery. Delivery should be as perfect as the circumstances allow. Donor may intend to immediately vest title in the donee, yet reserve right of possession until a future date. o Actual delivery: donor physically hands the thing over to donee. Ex.: A gives B a necklace. o Constructive delivery: donor hands to donee the means of obtaining gift. Ex.: A gives B keys to a car. o Symbolic: donor hands to donee some object that represents the thing given. Ex.: A document (deed) Acceptance: the donee must accept the chattel. The gift takes effect immediately upon delivery. o Gruen v. Gruen: If the item has value, we assume the donee accepts it. CO OWNERSHIP OF PROPERTY-MARITAL PROPERTY CL concurrent interests: a present or future interest that can be held and asserted concurrently by several persons. Tenancy in Common (Co-Tenants): concurrent interest where 2 or more ppl hold separate but undivided interest Each interest is descendible and conveyable. No right of survivorship. Separate but undivided right: each person has the right to use and possess the whole property TiC can alienate her undivided share of the property in the same manner as if she was the sole owner. Severance Rules (Delfino v. Vealencis): Partition in kind: physically portioning the land into separate tracts, if feasible. Once partitioned, each owns FS. Partition by sale: if physical partition not feasible or in parties best interests, court will order the property sold and distribute proceeds among the parties. [garbage case] Joint Tenancy: each tenant has an undivided interest and right in the whole estate, and the surviving co-tenant has a right to the whole estate. Regarded together as a single owner. Right of survivorship: a JT s right to succeed to the

3 whole estate upon the death of the tenant, not subject to the interest of the deceased co-tenant. Alienable, not descendible. Must have equal shares, since they have identical interests. Creation (2 ways) Express language: presumption against JT. Must state, JT with right of survivorship. OR Four unities: 1) time: interests acquired at the same time 2) title: title acquired by the same instrument 3) interest: interests of the same type and duration 4) possession: right to possession of the whole. (Modern Jx: don t need the strawman, can create a JT with one deed). Severance: Partition, conveyance, voluntary agreement or mortgage Conveyance rule (Riddle v. Harmon): JT can unilaterally sever the JT by conveying her interest to herself as a TiC and create a TC, even w/o the other s knowledge. Disrupts the four unities (wife did not want land to go to Husband) Mortgage: (Harms v. Sprague): Lien theory: a mortgage executed by one JT does not convey legal title that breaks the JT, but rather, it creates a lien. Title theory: a mortgage executed by one JT conveys legal title and destroys the unity of interest, severing the JT. (brother own JT, one brother mortgage on property and then died) Tenancy by the Entirety: created only between a husband and a wife. Each has an undivided interest in the whole estate and a right of survivorship. Joint tenancy - Four unities plus marriage. Not recognized in community property states. Severance: a tenant acting alone cannot sever it. Different ways: divorce, mutual agreement, death Divorce: converts into TiC. Mutual agreement: co-tenants can agree to sever it. Death: leaving survivorship Creditors: execution by a joint creditor of both husband and wife: Sawada v. Endo: interest of one spouse in real property held in TiE is not subject to individual creditors. (car accident case) Relations Among Co-Tenants: co-tenants have equal right to possession and enjoyment regardless their fractional share. Ouster: occurs when an occupying tenant excludes another co-tenant from physical use and enjoyment of the property. Need Notice and an actual act that won t let them use the property. Spiller v. Mackereth (used the whole warehouse): in absence of an agreement to pay rent or ouster, a cotenant in possession is not liable to pay rent to the other co-tenants. Benefits and Costs: 1) Rent: Co tenant in possession does not need to share the profits gained by her use of the property, nor does she own the non-possessory co-tenants any rent But co-tenants must share rents collected from third parties, and in profits that deprive the land of its value. 2) Repairs: if a tenant provides notice to the other tenants, he may be able to recover for necessary repairs. Otherwise, most jxs do not recognize right to contribution for repairs. 3) Carrying charges: taxes and mortgage payments must be paid to hold onto the property. 4) Improvements: same as repairs, no right to contribution. Exception: in partition action, improved portion is awarded to improver. Separate property (CL) states: TIE - majority of states. Any property acquired prior to marriage is the spouse s alone. If property is earned during the marriage or the spouse titles something in his name during the marriage, he owns it. Married Woman s Property Act: gives the woman equality, and protects from husband s creditors. Modern: own property in TiE: 1) Right of survivorship 2) Cannot partition: can only separate property through divorce 3) Cannot transfer property acting alone 4) Indiv creditors cannot seize property. Termination of marriage: equitable division between the parties, based on fairness standards, not who owns the title. The theory is that each party contributed to the marriage and should be compensated. In re: Marriage of Graham: a professional degree is not a divisible piece of property. Too speculative to value. Death, Forced (Elective) Share at Death: when one spouse dies, can elect to renounce the will, and take the share that is determined by statute. Protects a spouse from total disinheritance. Community Property states: No TiE. Property earned during marriage is property of the marriage and shared equally by both spouses, even if it s titled in one spouse s name. Key feature: each spouse owns half, and when one spouse dies, the other still owns half. This is ½ of each piece of property. Ex.: each own ½ of a car. No survivorship benefit. Comingling property: Combining community property and separate property. Can t tell? Rebuttable by showing that the property is separate: 1) Property acquired before marriage 2) Inheritance 3) Bequest 4) Devise 5) Separate gift 6) Rents, issues and profits of separate property Management and control: Fiduciary duty, but both spouses can manage property. Cannot give gifts without consent of the other. Divorce: property is subject to equitable division (equitable doesn t mean equal). Death: no survivorship right, so spouse can devise his half. You can decide to hold your property as JTs with ROS, though. Migration: property acquired in separate property states and community property states stays classified in the state it was acquired in. They don t change if a couple changes domicile.

4 LEASEHOLDS: LANDLORD TENANT Leasehold: estate in land. T has present possessory interest and LL has future interest. Important to determine whether an agreement is a lease or not because rights and liabilities flow from the LL/T relationship. Under leases, the breach of one party does not excuse the performance of another. Tenancies for years: for a fixed period of time, could be for more or less than 1 year. To A for years. Created by written leases, and SOF requires that tenancy for < 1 year be in writing. Termination date is certain, and ends without either party giving notice to the other. Breach: LL reserves right of entry, to terminate the lease if T breaches any provision in the lease. Ex.: failure to pay rent. Surrender: T gives up his leasehold interest, and LL accepts. Death of LL or T has no effect on duration. Periodic tenancies: tenancy that continues from month to month/ year to year until terminated by proper notice by either party. Will automatically renew for that period unless the party gives notice to end it. To A, with rent payable on the first day of every month. Termination: date is uncertain until notice is given. Notice: in writing and delivered. C.L.: notice should be equal to the period, and is effective only at the end of the period. Six months notice required to terminate a year-to-year. Death: no effect on duration. Tenancies at will: estate with no set duration. Supposed to continue by mutual agreement between the LL and T. To A for as many years as A desires. Termination: either LL or T is supposed to have equal right to terminate at will. Garner v. Garrish: no unilateral right to terminate. Lease continued after LL died, and was to continue as long as T wanted. Life estate determinable created. Death does have an effect on duration. Unless parties expressly agree to tenancy at will, court will imply the periodic tenancy. Tenancy at sufferance: holdover. T had a valid lease, but holds over beyond the duration of the lease term. Two options: 1) Unlawful detainer statute: allows the LL to evict T as a trespasser. 2) Creation of periodic tenancies: LL binds the tenant to periodic tenancy. Tenant Selection: 1) Civil Rights Act of 1866: prohibits racial or ethnic discrimination. 2) Fair Housing Act of 1968: unlawful to refuse to rent or sell a dwelling on the basis of race/religion/sex/disability/familial status/age. Advertising: prohibits advertising that makes a discriminatory preference. Ms. Murphy exception: if you own four units or less (and live in one) you are exempt so long as you don t publish your discrimination.; single house exception Tenant Duties and LL Remedies Tenant in possession of property (Berg v. Wiley (restaurant/changed locks)). Berg Rule: the only lawful means to dispose of a tenant who has not abandoned or surrendered, but who stays in breach of the lease is to resort to the judicial process. Forcible entry statutes: most states prohibit forcible entry. LL must not use force or self-help to remove a holdover, including changing the locks. Unlawful detainer: eviction process LL engages in. Should be relatively speedy. Summary proceedings: a quick and efficient means by which to recover possession after termination of tenancy. Tenant who abandons possession. Abandonment: occurs when tenant without notice to LL: 1) vacates premises w/o justification, 2) lacks the present intent to return, 3) defaults on rent payments. Mitigation rule (Sommer v. Kridel): the majority rule is that a LL has a duty to mitigate damages when he seeks to recover rents due from a defaulting tenant who abandoned. Tenant bears the reasonable cost of expense incurred by LL in re-letting premises. Policy: mitigation allow property to be productive rather than idle, and discourages vandalism. Mitigation: 1) Surrender: T asks LL to end the tenancy. 2) Acceptance: If LL uses the premises to his own advantage (moves in), implied acceptance. LL simply expressly accepts surrender, and cannot come after T for past rent. Landlord Duties and Tenant Remedies. Duty of possession: does the LL have to deliver actual possession, not just legal possession, of the premises at the start of the lease? English rule: LL has to deliver actual possession, as well as legal possession, to T. Policy: LL has more control about removing holdover tenant and is more familiar with eviction procedures than the T. Remedies: 1) T may terminate the lease and recover damages if LL doesn t oust holdover; 2) T may continue lease and get damages for period until holdover is removed. American Rule (Hannan v. Dusch, LL refused to evict holdover): LL has duty to deliver only legal possession, not actual possession. Policy: LL should not be held for tortious acts of holdover, so it is up to T to take possession, since T has a remedy against holdover. Remedies: 1) T can sue to evict the holdover; 2) T can treat holdover as tenant for another term and collect the rent. Quiet Enjoyment: implied warranty that says that a LL will not interfere with the T s right to quiet enjoyment and possession of the premises during the term of lease. An act or omission that renders premises unsuitable or seriously interferes with use of premises is breach of quiet enjoyment covenant and T may bring a constructive eviction action. Eviction: T excused from rent obligations Partial eviction: T excused from rent obligations until full premises usage is restored. Constructive Eviction Elements (Reste Realty v. Cooper (recurring basement floods)): 1) Act or omission by LL/agent; 2) Must render premises unsuitable or substantial interference with beneficial enjoyment, and must be recurring; 3) T must vacate w/in a reasonable time (bad enough that T must leave); T must notify LL of the condition;

5 4) T must allow suitable time for repairs; 5) Remedies: a) If T vacates, no longer responsible for rent obligations; b) Tenant may recover damages. Illegal Lease Doctrine: A violation of the housing code that renders the lease illegal and unenforceable. There IS a violation, not there may be a violation. Elements: 1) Must exist at the time the lease was entered into, not after; 2) Minor technical violations aren t considered; 3) The LL must have actual or constructive notice; Remedies: a) T can without rent and not be evicted (all damages except for punitive); b) LL is entitled to the reasonable rental value of the premises in light of the condition. Implied Warranty of Habitability: implied in every lease that LL will deliver and maintain the premises that are safe, clean, and fit for human habitation (residential). Requirements (Hilder v. St. Peter (nasty apartment)): 1) Applies to latent and patent defects; 2) Defect exists at the time the lease was entered into, and affected health and safety; 3) T must notify LL of the condition, but does not have to vacate; 4) LL must have reasonable time for correction; 5) LL must fail to make repairs; 6) Remedies: a) T may recover damages (value of residence as warranted and its actual value) & recovery for discomfort and annoyance; b) T may withhold future rent; c) T could recover for punitive damages, if LL conduct is willful and wanton. Analysis of Sublease v Assignment: 1) Sublease or Assignment; 2) Privity of K or estate; 3) Formulistic; 4) Intent Sublease: tenant gives sublease less than entire state; tenant retains an interest (reversion. Creates an entire new contract and LL can sue T1 but not T2 because of privity of K/estate. Assignment: tenant s transfer of all interest for the remainder of the lease term; LL can sue assignee for privity of estate and breach of K if agreement was executed ; tenant can be sued for breach of K Privity of K: relationship existing between parties to a contract Privity of Estate: relationship between parties have have mutual, immediate and simulteanous interest in property LL still has current reversion and tenant has current leasehold interest Formulustic: if instrument transfers remainder of term then it is an assignment regardless of intention Intent: court will look to parties intention (Ernst v Conditt) TRANSFERS OF LAND - Buying and Selling Statute of Frauds: requires that a land contract is in writing and signed by the party to be charged to be enforceable. A memorandum suffices. Should include the description of the property, the names of the parties to the contract, and the price of property (FMV, if not stated). Principle: to make people secure in their property, and to make deceitful claims unenforceable. Exceptions: Part Performance: allows specific enforcement of oral agreements when 2 out of 3 particular acts have been performed by the buyer: 1) Buyer moved in; 2) Buyer has paid most or all of purchase price; 3) Buyer has made substantial improvements. Estoppel: an unconscionable injury would result from denying enforcement of the oral contract, after one party has been induced by the other in reliance on the contract. Or when unjust enrichment would result. Marketable title: implied covenant in every land sale contract that S will provide B with marketable title. Lohmeyer v. Bower (1 story house on 2 story lot): marketable title is title that is reasonably free from doubt that a reasonably prudent buyer would be willing to accept, and does not expose the party to hazard of litigation. o Violations of covenants and zoning ordinances = unmarketable. o Buyer may rescind if Seller does not provide marketable title. Merger doctrine: once the buyer permits the closing to occur, the contract is said t merge with the deed, and in the absence of fraud, the seller is no longer implied liable on the implied covenant of marketable title. Equitable Conversion: Once a K is signed, each party is entitled to specific performance, so equity regards done that which ought to be done. Buyer s interest is considered as the real property. Seller s interest is considered as personal property. Buyer is responsible for any accidental loss of property, unless the seller has insurance. Duty to Disclose Defects on Property Disclosures that happen during executory period. Caveat emptor is being eroded due to policy considerations. Defect created by seller (Stambovsky v. Ackley (ghost case)): seller must disclose a condition when (and buyer can rescind): 1) the condition was created by the seller; 2) materially impairs the value of the contract (Material means: a) Objective: would a reasonable person attach importance to the defect? b) Subjective: does the defect affect the desirability?); 3) is peculiarly within the knowledge of the seller or 4) unlikely to be discovered by the prudent purchaser. Latent Defects (Johnson v. Davis (flooding roof seller knew)): where the seller of a home knows of facts materially affecting the value of the property which are not readily observable, seller under duty to disclose.

6 Fraud and Misrepresentation: seller made a false statement, buyer relied on the statement, and it materially affected the value of the property. Implied Warranty of Quality: implied warranty of quality that the home is suitable for human habitation and constructed in a reasonably workmanlike manner. Usually 1) new home built; and 2) first time buyer. o (Lempke v. Dagenais (garage collapse)): privity of contract is not necessary for a subsequent purchaser to sue under implied warranty for latent defects which appear within a reasonable time after purchase and which cause economic harm. DEEDS: The type of deed expresses what the grantor is promising: General Warranty Deed: grantor is making all six of the promises (present covenants and future covenants) to protect the grantee as to title, not just for acts she has taken, but also the acts of all her predecessors. Special Warranty Deed: grantor makes all six of the promises of title, but only as to acts she has taken. Quitclaim deed: grantor does not make any promises as to the property. He conveys whatever rights he has, which may be none. (usually on death bed) Present Covenants: 1) Covenant of Seisin; Covenant of right to convey; Covenant against encumbrances Future Covenants: 1) Covenant of General warranty, Covenant of Quiet enjoyment; Covenant of Future assurances Deed conveyance requires 3 elements: 1. Present intent (Rosengrant v. Rosegrant (farm/nephew): there must be irrevocable intent in order to reflect delivery. No irrevocable deliv. b/c Harold still lived on farm, envelope w/ both names. Grantor intends to presently convey interest in property. Can have present intent to convey future interest 2. Delivery (Sweeny v. Sweeny(trying to keep prop from wife): delivery must be made with an intent to pass title. Has to deliver title during grantor s lifetime (SOW). Does not require physical handover, but should show grantor s intent to make deed operative and to pass an interest immediately to grantee. When deed was handed to grantee (Maurice) even though it was only to take effect on John s death, deed was considered properly delivered. 3. Grantee must accept deed. Acceptance assumed. Revocable trust: land transfer w/o all the conveyancing issues. Declaration of trust, retains the right to possession and to all rents and profits of the property. MORTGAGES: Vocab ID and Chronological Order: Note: a promissory note to pay the amount of the loan. Creates personal liability. Mortgage: A conveyance of title to property, that s given as security as payment for a debt. Mortgagor is the buyer, Mortgagee is the lender. Deed of Trust: borrower conveys title to the land in a third person, and the land is held in a trust. The trustee has the power to sell the property upon the default of the borrower. Default: when the borrower fails to make a payment under the note. Right of redemption: ability for borrower to redeem the property after defaulting.. Deficiency judgments: mortgagee can turn to the mortgagor s general/personal assets to recover the remaining amount owed under the loan. However, the courts also look at if the proceeds of the sale is a fair price for the property, and the appropriate amount to credit the debtor. Murphy v. Fin Dev. Corp: lenders must exercise good faith and diligence in judicial sale, so borrowers can get their equity out of the property. Courts will not overturn unless 1) Shock the conscious of the court; or 2) Grossly inadequate. Ex.: 1/20th of value of property was held okay. SERVITUDES: a private obligation or burden imposed on land for another s benefit. RwtL: to what extent does this private promise attach to the land and run with subsequent owners? EASEMENTS: an irrevocable grant of an interest in land that allows someone to use another s land. Dominant owner, person benefiting, has the burden to maintain. Appurtenant: right of use benefits the holder of the easement in his physical use or enjoyment of another tract of land. Must be two tracts, servient and dominant parcels. Must make land of dominant estate more beneficial in use and enjoyment. 1) Dominant: benefit passes with transfers of land. 2) Servient: burden passes, unless party has no notice. In Gross: right to use the servient land independent of ownership of another tract of land. Passes apart from any land transfer. (think powerlines, billboards) For burden to run: intent, notice, writing. For benefit to run: intent or commercial use, writing. Affirmative: holder has right to go onto land of other and do something. Negative: prevents owner of land (servient) from doing something. (light/air/water/lateral support). Policy is that they are frowned upon, and covenants are an alternative to negative ease. Legal Considerations: Law construes in favor of EA; focus is on who benefitted rather than burdened; Willard v First Church of Christ: court must balance competing factors of policy and equitable considerations even though one cannot reserve an interest in a property to a stranger to the title.

7 Assignability of easements:intent of the original parties to have benefit or burden. Benefit Notice: 1) Actual: actually informed; 2) Constructive: recorded; 3) Inquiry: a reasonable person would inquire further. Miller v. Lutheran Camp: in gross easement was assignable because of intent of the parties for a commercial purpose. Further, if easement is divisible, rights must be used in the entirety one stock rule. ; recreational easements are not assignable Burden: 1) Appurtenant: intent must be transferred; OR 2) commercial: (see above) Creation: interest in land, SOF applies. Easement must be in writing. Perpetual duration. Express: Grant: easement over O s land is granted to another, owner of dominant parcel. SOF. Reservation: Owner of land conveys title but reserves the right to continue to use tract for special purpose after conveyance (reserved only for O, not 3rd parties). Willard v. First Church (parking lot): primary objective in construing a conveyance is look at grantor s intent. Court allowed reservation to 3rd party (minority). o For the benefit to run: intent of the parties, writing. o For the burden to run: intent of the parties, notice, and writing. Estoppel: easement can develop through reliance; rewards people who put work into land even though not in writing Licenses: a revocable oral or written permission allowing act that would be a trespass. Personal, nontransferable. However, can become an easement by estoppel: an easement is created when the conduct of the owner leads another to reasonably believe that she has an interest in land and acts in reliance on that interest. o Holbrook v. Taylor (building house, used road w/ permission): 1) License exists; 2) Licensee invests substantial amounts of money or labor in reliance on a license; 3) Licensor s knowledge or reasonable expectation that reliance will occur. Implied Easements. Exception to the SOF, no written instrument. The extent of necessity determines the scope. Prior use (Van Sandt v. Royster (parcels divided, sewage line)). Elements: 1) Property originated from a common owner one part of property was used to benefit the other part. Parties intended use to continue. conveyance either by grant or by reservation(owner keeps dominant estate and reserves an easement for herself in servient estate - Willard); 2) Easement is visible, apparent, and continuous, and within new owner s knowledge. 3) Reasonably necessary for the enjoyment of land. Not necessarily terminated b/c it doesn t become necessary anymore. Necessity (Othen (landlocked parcels, but roadway was convenience) terminates when the necessity ends. Elements: 1) Common ownership of land. 2) Necessity time of severance, strict is necessary when owner parceled it out. 3) Strict necessity for the enjoyment of the land, not mere convenience. Prescriptive (Othen argued prescriptive, using same road) Adverse possession; using the property in a way it s meant to be used. Elements: 1) actual use; 2) O/N; 3) Adverse, no permission; 4) continuous/uninterrupted (tacking/seasonal okay); 5) under claim of right; 5) exclusivity not required, just trying to get use; 6) SOL. Scope of easements Subsequent Parcel Rule: An easement appurtenant to one parcel of land may not be extended by the owner of the dominant estate to other parcels subsequently acquired by him that were not part of the original easement. o Exception: Injunction will not be granted if no additional burden - Brown v. Voss: EA may not be extended by the owner of the dominant parcel to other parcels owned by him, except if it would cause undue hardship. Changed Conditions Rule: The scope of an easement may be adjusted in the face of changing times to serve the original purpose, so long as the change is consistent w/ the terms of the original lease. o Presault v. U.S. railroad case: scope did not extend to recreational trail use clearly different useage Termination: 1) Release: easement owner agrees to release easement (in writing). 2) Expiration: stated period in writing or necessity ends. 3) Merger: ends if easement owner becomes owner of servient estate. 4) Estoppel: servient owner reasonably relies on easement owner statement. 5) Abandonment (Presault): present intent to relinquish. Non-use does not constitute abandonment, must be an act manifesting intent. 6) Condemnation: gov t exercises eminent domain power to take away servient estate. 7) Prescription: servient owner physically prevents use. REAL COVENANTS: A written promise respecting the use of land that RwtL at law, which means that subsequent owners may enforce or be burdened by the promise. Enforceable in an action for damages. 1) Affirmative: a promise to perform an act, requires the servient owner to do something. 2) Negative: a promise not to act, prevents the servient owner from using his land in a way. For a burden to run: does this burden the successor? Notice: actual, constructive, inquiry

8 Intent: original parties must have intended that successors be bound to covenant. Two ways: 1) Evidenced by language: heirs, successors, assigns or runs with the land; 2) Evidenced by surrounding circumstances at time of creation. Writing: must satisfy the SOF Touch and concern the land: logical connection to direct use and enjoyment of the burdened land. o T&C: does it benefit the land or make property more or less valuable? o Policy: do courts want to enforce this type of agreement? o Negative: must restrict holder in his use of that parcel. o Affirmative: must require holder to do something, increase obligations. Strict Vertical Privity: relationship between original party and his successor. Successor must succeed to ALL of the estate and durational interest that original had. Ex.: A has FSA, must transfer FSA to B. Horizontal Vertical Privity: relationship between the original contracting parties. Simultaneous or successive interest in the land. Covenant was made in the context of a transfer. Ex: LL/T, easement, sale For a benefit to run: can the successor assert the benefit? Notice not required. Intent by original parties through language of conveyance or surrounding evidence. Relaxed vertical privity: successor can have any succeeding interest, original estate or less. Ex. Life estate. Touch and concern: must benefit successor in interest in use and enjoyment of benefitted land. Writing: SOF. Mosley v. Bishop: A covenant imposing affirmative burden will run; drainage ditch case Neponsit v Emigrant Industrial: covenant to pay HOA fees found to run with the land, because it was connected to increasing the value of the land. Touch and Concern test: if it alters legal relations and affects property value, it touches and concerns the land EQUITABLE SERVITUDE: A promise respecting the use of land that is enforceable against successors, regardless of its enforceability at law. Injunctive relief. Regardless if it runs w/ the land, equity will enforce against those who have notice. Requirements for express burden to run: 1) Intent: no technical words required. Ascertained from purpose of covenant and surrounding circumstances. 2) Notice: not bound in equity unless she had actual or constrictive notice. 3) Touch and concern. Tulk v. Moxley: covenant didn t work b/c the parties weren t in privity. Found to be an eq. serv. cuz it met elements. Requirements for express benefit to run: 1) Intent; 2) Touch and concern. Privity not required: enforced as an equitable property interest burdened on the land itself as opposed to the estate. Equitable Servitudes Implied by Law/Reciprocal Negative Easement: Application of General Scheme Doctrine occurs when one original owner divides land and imposes the restrictions 1) Notice: Actual or Construction [record, inquiry] 2) Common owner; 3) Intent of Owner; 4) Benefit; 5) Uniform - Sanborn v. McLean (gas station in res. neighborhood). Potential remedy: could get consent from all neighbors, covenant not to sue Termination of covenants: Western Land (Plumb lane) Changed conditions doctrine: Covenants always apply as long as 1) The original purpose of covenant can be accomplished AND 2) substantial benefit will be given to restricted area, even though prop may have greater value if used for other purposes. Abandonment of Covenant: To argue covenant has been abandoned, you must show a general trend. Sporadic instances (nursery, painter) are too sporadic. Must be so general/so many violations they frustrate the purpose of the agreement. Rick v. West (hospital): w/ zoning and restrictive covenant, the more restrictive prevails. The conditions that are changing in order to terminate the covenant have to affect the covenant itself. The covenant must stop being a benefit. Ambiguity with covenants: if there is an ambiguity, it will be read broadly to increase use, not limit. ZONING: Zoning derived from state s police powers. a way for government to control use of the land (constitutional Euclid Test/Rational Basis Test: a law will be upheld if state shows it was 1) enacted to promote legitimate state interest AND 2) law is rationally related to legitimate state interest (street case public health affected and zoning protects children) Nonconforming use: pre-existing use of property violates a zoning provision/amortiziation: when a phase out time is allowed to get rid of non-conforming use ½ JX s say this is never okay (PA NW Distributors v Zoning hearing board adult book store was being re-zoned, gave 90 day notice & court said no)/remedies: 1)Judicial must past Euclid test, Village of Belle Terre:HOA restricts housing college students. Does not impact constitutional rights/right of privacy 2) Waivers; 3) Changed Conditions 4) Variance: waivers that allow a nonconforming use to exist must request and show undue hardship/not harm public or neighbors 5) Suck it up