Prop Outline (final)

Andrew Gniewek Prop Outline Last Updated 05/08/09 Prop Outline I. Acquisition by Capture 1. RoC: You can become the owner of an animal only by capturing it: either by bodily seizure; OR, by mortal wounding it (A reas chance of capture is not enough). Pierson Post was hunting a fox w/ his dogs on an uninhabited waste land called “the beach.” Post and his dogs were chasing the fox when Pierson saw him (and his dogs). Pierson killed the fox and claimed it for himself. Post claims because that he had acquired rights to the fox by being the first to see it and initiating the chase Held: Under the RoC, Pierson gets the fox and Post has no rights to it. 2. Exceptions to the RoC: a. Custom: Ghen App shot and killed a whale that sank and later surfaced. Ellis found the whale and sold it to the Resp. Custom required that the finder deliver the carcass to the killer in return for a small salvage fee. App claims that he had acquired rights to the whale by killing it, while the Resp claims that he had acquired rights by buying the whale from Ellis, the finder. Held: Custom is OK to use in this particular scenario b/c the custom is old and proven, it doesn’t violate comm law, it’s fairly limited, and its assists the industry and works well in practice. If we take custom into account in making decisions of this nature, we must be sure that the custom is in alignment with ints of society as a whole, and not just the ints of the industry. b. Constructive Poss: Ratione Soli: An owner of land has constructive poss of any wild animal on his/her land. Keeble Pl had a decoy pond that he used to draw ducks to his prop. Df shot his gun to scare the ducks away while he was on his own land (so there is no claim for trespass). Held: Pl wins. Animus Revertendi: Domesticated animals that leave home and later return. Determinative Issues: Did the domesticated animal have markings?; Could the hunter reas have known that the animal was someone else’s prop?; Was it reas for the hunters to graze there? Pros and Cons of the RoC: Pros: The RoC encourages people to hold tight to their animals (because they may potentially lose title to escaping animals); AND, It encourages and incentivizes the hunt and capture of animals (Under the RoC, the only way to acquire rights to an animal is to capture it). Cons: The RoC encourages a waste of resource (i.e., an overinvestment in means of capture); It encourages capturing as many animals as possible today w/out consideration of fut needs and wants; It encourages more capture today then is in society’s best ints (This is also known as the “tragedy of the comms:” When people take from a comm source, they take the benefit w/out bearing the loss; rather, the owners of the comm source bear the loss w/out taking the benefit.) Externalities: The effect on others that an actor has no reason to consider in planning his/her conduct. Externalities lead to inefficient uses of resources. An actor will engage in conduct that may be inefficient for society as a whole; that is, the social costs of his/her conduct outweigh its social benefits. What about gathering everyone together to meet and promise to wait to cut down the trees? 1. Large transaction costs; 2. Free rider problem; 3. Holdout problem; AND, 4. Enforcement issues. 1

Andrew Gniewek Prop Outline Last Updated 05/08/09 Tragedy of the Comms: Each individual will find it in his/her int to engage in behavior that is unproductive to the whole. To internalize externalities (i.e., to make individuals consider the effect of their conduct on others): 1. Privatization of Prop: Owners of private tracts of land have a reason to consider fut needs and wants (We internalize externalities by forcing owners to take fut needs and wants into acct in planning their conduct.). 2. St Ownership: Gov’t asserts ownership and manages resources. II. Adv Poss An adv poss’s rights become superior to that of the true owner (i.e., the running of SoL transs ownership of the land to the adv poss). Purposes of Adv Poss: 1. Sleeping Rationale: To punish a sleeping owner who is not using his/her land and is not even paying enough attention to it to see that someone else is using it. 2. Earning Rationale: To reward meritorious adv poss who are making use of unused land. Reqs of Adv Poss: 1. Actual Entry Giving Exclusive Poss That Is (i.e., acting as a true owner); 2. Open and Notorious (When it’s not obvious, poss becomes open and notorious when the true owner finds out.); 3. Adv Under a Claim of Title (relating to the behavior of the adv poss, not his/her mental st); and, An adv poss’s words and conduct are such that would put a diligent true owner on notice that the adv poss is claiming title. 4. Continuous (i.e., unbroken poss for the stat period). Color of Title: A claim founded on a written instrument or judgment that is defective. An adv poss of a tract of the land will be poss of the whole tract; that is, an adv poss will have constructive poss of the whole tract, not just the tract that s/he is occupying. -It doesn’t work against a true owner who is in actual poss of part of the tract; -An adv poss cannot claim constructive poss on a piece of land that is owned by someone other than the true owner whose land the adv poss is occupying (i.e., a defective deed given by third party). Tacking: An adv poss can count the occupancy of a previous adv poss’ poss for the purposes of calculating whether the stat period has been satisfied. Under what conditions should we allow tacking? Always consider the sleeping and earning rationales. -Sleeping Rationale: Is the opportunity to discover the adv poss the same with each successive true owner? -Earning Rationale: Tacking allows a successful claim of actual poss even if they haven’t been there that long, or have “earned” it. Which rationale is more important? American cts are more concerned with earning then they are with sleeping, while English cts allow tacking as long as actual poss continues unbroken. A poss can always tack his own periods of poss, but may not necessarily be permitted to tack other people’s periods of poss. What happens when the true owner sells/transs his/her deed to a new owner? Does the stat period restart? Under the sleeping rationale, the SoL has to recommence b/c the new true owner isn’t at fault for the old true owner’s sleeping. Under the earning rationale, the SoL should continue to run, since the adv poss has been in poss all along. American law: Yes, a poss can tack together previous true owners’ periods of ownership; that is, an adv poss doesn’t have to restart the SoL when the true owner’s deed is trans. 2

Andrew Gniewek Prop Outline Last Updated 05/08/09 Disability: For a disability to extend the SoL, the disability must be pres at time the COA accrued. If the disability is removed early on, we can use the original 21yr SoL. The 10-yr extension can only help the true owner. Van Valkenburgh A case involving a fight b/t neighbors over a lot that Lutz didn’t own but built a garden on. The VVs later bought the lot from the City of Yonkers at a foreclosure sale (for no taxes paid; the true owner cannot be found) and tried to eject Lutz. There was a previous action by Lutz in which he claimed that he had acquired a right of way by prescription. In that action, Lutz conceded that the VVs owned the land, but that he had wanted an easement on their land for use of the right of way. NY Stat for Adv Poss: If a claim is founded on a written instrument (i.e., under color of title): 1. Occupation/poss: Either by improvement, enclosure, or ordinary use, including husbandry, fuel, and timber. 2. Poss/improvement of part of the land is constructive poss of the whole. If there is no written instrument: 1. Occupation: By cultivation/improvement or enclosure only. 2. An adv poss can only claim ownership the part of the land that s/he was actually occupying. Held: 1. No fence or other enclosure (There was a boundary, but that was not enough). 2. No usual cultivation or improvement (Lutz only tended to a portion of the lot). 3. Occupation wasn’t under a claim of title (Lutz knew the shack wasn’t on his land, and admitted so in the prescription hearing). Manillo Df made additions to his house and accidentally extended steps about 15 inches onto his neighbor’s land. Issue: Does accidental trespass meet the hostility req of adv poss? Held: Yes. Accidental trespass meets the hostility req of adv poss. However, the open and notorious element of adv poss may not be satisfied by accidental trespass (which was the central issue on remand). The accidental trespasser’s poss cannot be said to be open and notorious until the true owner actually knew of the trespasser’s encroachment. GENERAL RULE: Intentional trespassers can succeed on an adv poss action. MAJORITY RULE: CT Doctrine: An adv poss’ st of mind (whether his poss was intentional or accidental) is immaterial. Any exclusive, open and notorious, and continuous entry and poss that satisfies the stat period is suff to support an adv poss claim, even if the poss was unintentional or a mistake. MINORITY RULE: ME Doctrine: Adv poss cannot be bottomed on a mistake; it must be hostile and intentional. For Knowing Trespassers: 1. Is the sleeping rationale satisfied? Yes. This would punish a sleeping true owner who didn’t take the steps necessary to find out that his land was being occupied. 2. Is the earning rationale satisfied? Yes. Even an intentional trespasser has done something to improve the land, something a true owner should/would have done. For Accidental Trespassers: 1. Is the sleeping rationale satisfied? Yes. The true owner had the same opportunity to find out about the accidental adv poss’s poss. 2. Is the earning rationale satisfied? Yes. An accidental adv poss has earned at least as much as an intentional adv poss. Good faith has been satisfied, too.

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Andrew Gniewek Prop Outline Last Updated 05/08/09 3. Will mistakes be fixed/put to sleep? Yes. An adv poss’s use of the SoL puts conflicts to rest after the stat period expires. Prop Rule v. Liab Rule: Prop Rule: Someone who is invading your land has to get off of your land Liab Rule: Someone who is invading your land may stay as long as s/he pays dams. Manillo suggests that IF it’s just a small mistaken encroachment that doesn’t create a burden on the true owner, THEN cts can force the true owner to convey the portion of the land in question to the accidental encroacher for a courtdecided sum (i.e., a forced sale). Other Ways to Solve Boundary Disputes: Doctrine of Agreed Boundaries: IF there is uncertainty as to boundary lines, THEN an oral agreement to settle the matter is enforceable if it’s accepted for a long period of time. Doctrine of Acquiescence: A long period of acquiescence is evidence of an implicit agreement b/t the parties fixing the comm boundary. Doctrine of Estoppel: IF one neighbor makes represations that the other neighbor reas relies on, THEN the neighbor estopped from denying the validity of his stments/acts. Howard The McCalls bought a deed to land on Hood Canal, but the deed he bought was actually for the lot to the left of the land he thought he had purchased. The Moyers actually had the deed to the lot that the McCalls’ house was on. The Howards had the deed to the land that the Moyers’ house was on. Basically, everyone’s deed is incorrect by 1 lot. The McCalls sell to the Millers, who later sell to the Kuntos. The mistake was later discovered and the Howards trans to the Moyers the land they were actually on in exchange for the title to the Kuntos lot. This fixes the Moyers’ problem, but now the Howards have record title to the Kuntos lot. Held: The Kuntos had exclusive poss, acting like true owners, under a hostile claim of title. But was their poss open and notorious? The issue is whether poss was open and notorious but not the fact that it was adv (or hostile). Nobody knew that the prop wasn’t theirs. Here, the ct assumes that the Kuntos and their predecessors were visibly occupying the land and that makes their occupation open and notorious. The ct here is willing to allow tacking as long as there is priv (i.e., a reas connection) b/t the preceding owner and the succesive owner, and here the ct found priv. Adv Poss of Chattels: GENERAL RULE: A thief cannot trans good title, even in the event of a good faith sale and purchase (i.e., a sale in which the purchaser didn’t know that he was purchasing stolen goods). In the case of theft, the original owner can recover his/her chattels from the purchaser (even if the purchaser acted in good faith). DISC RULE: A COA will not accrue until the original owner discovers, or by the exercise of reas diligence and intelligence, can discover the identity of the poss of the stolen goods. Theft: Gen, if items are stolen, the thief acquired no good title and therefore may not trans good title to anyone regardless of his/her good faith and ignorance of the theft. Voidable Title: Bounced Check (UCC §2-403) A person w/ voidable title has power to trans good title to a good faith purchaser for value. When the goods have been delivered under a transaction of purchase, the purchaser has such power even though: (a) The transor was deceived as to the identity of the purchaser; (b) The delivery was in exchange for a check which is later dishonored; (c) It was agreed that the transaction was to be a “cash sale”; OR, (d) The delivery was procured through fraud punishable as larcenous under crim law. Entrustment: 4

Andrew Gniewek Prop Outline Last Updated 05/08/09 (1) Any entrusting of poss of goods to a merchant who deals in goods of that kind gives him power to trans all rights of the entruster to a purchaser in the ordinary course of business. (2) “Entrusting” includes any delivery and acquiescence in retention of poss regardless of any condition expressed b/t the parties to the delivery or acquiescence and whether the procurement of the entrustment or the poss's disposition of the goods have been such as to be punishable as larcenous under crim law. For voidable title and entrustment actions, an original owner has a valid COA for dams but not to regain poss of his/her prop. O’Keefe O’Keefe is looking to regain poss of her paintings that were stolen from her husband’s gallery and sold to the owner of another galley. Snyder bought O’Keefe’s paintings from Frank, who claims that his father got it from O’Keefe’s husband who owned the galley from which the paintings were allegedly stolen. Frank claims that there was never any theft. Held: O’Keefe’s COA accrued when she first knew, or should have known through the exercise of due diligence, of the identity of the poss of the paintings (i.e., the disc rule). Diff Approaches for the Tolling of the SoL: NY Approach: Right of First Refusal: SoL begins to toll once the poss refuses a demand from the true owner to return the object. This approach favors the true owner. European Approach: Market Overt: Even a thief can trans good title to a bona fide good faith purchaser as long as it’s done in an open market. This approach favors the bona fide good faith purchaser. Disc Rule: SoL doesn’t toll until the true owner knows, or should have known through the exercise of due diligence, of the identity of the poss of the stolen goods. This is the happy medium b/t the NY and European approaches. III. Promissory Ests Est: A pres poss int, not the actual piece of land. Devisees: Those who take the land if the decedent dies test (i.e., w/ a valid will) Rule of Primogeniture: Old Comm Law Rule: Eldest son takes the land, then the eldest son of the eldest son takes the land, etc. Daughters could take only the land if there was no son and in absence of any male descendents of that son. Heirs: Those who take the land the decedent dies intest (i.e., w/out a valid will) 1. Spouse: A spouse gets a share of the land, the size of which depends upon the existence of issue and other heirs. 2. Issue: Descendants: Children, grandchildren, etc. (If a child dies before a parent, the child’s children take his place.) 3. Ancestors: Parents take as heirs if there is no existing issue. 4. Collateral: Blood relatives that are neither issue nor ancestors: Brothers, sisters, nephews, nieces, uncles, aunts, and cousins. 5. If none of the above, the land escheats to the st. *Heirs have no pres poss or fut int b/c no living person has heirs, and “to his heirs” are words of limitation, not words of purchase.. Construct Pref: No restraints on land. -Restraints on land affect the marketability of land, and so, the land might not be put to its best and highest use. -Restraints on land perpetuate the concentration of wealth by making it impossible for an owner to sell his/her prop and retain the proceeds. -Restraints on land discourage improvements (b/c the improver cannot sell his/her land and retain the proceeds of his improvement (i.e., the increased value of the land as result of his/her improvement)). A. FS: “to A and his heirs” A becomes a tenant in FSA; O retains nothing; AND, A’s prospective heirs have no fut int. 5

Andrew Gniewek Prop Outline Last Updated 05/08/09 1. A FSA creates a pres poss int in the transee. 2. A FSA creates no legally protected int in anyone but A: O retains nothing; AND, A’s prospective heirs have no fut int. 3. The modern presumption is that “to A” creates a FSA. 4. A FSA is freely inheritable; that is, a FSA holder can freely designate who will take his/her land at his/her death. B. Fee Tail: “to A and the heirs of his/her body” A becomes a tenant in fee tail; O retains a reversion; that is, the est will revert back to O in FSA at the end of A’s lineal descent. O can grant a remainder to B if A dies w/out issue. A fee tail lasts only as long as A’s lineal descent. Disentailing: Today, an owner can eliminate the tail by making a trans during his/her life, which converts the fee tail into a FSA. Two Pieces of Paper: An fee tail holder can trans his/her int in the land to his/her lawyer’s secretary (or any other strawman), and s/he’ll trans it back to the owner, creating a FSA. Abolition of Fee Tail: The fee tail only exists in DE; ME; MA; AND, RI. C. Life Est: “to A for life” A gets a life est; B gets a remainder int (contingent or vested); O retains a reversion. A life est lasts only one generation. Life Est Pur Autre Vie: If A’s life est is trans to another party, it still lasts only as long as A is alive, then goes to the remainderman (B); OR, reverts back to O. White Ms. Lide left a holographic will, leaving her house to her sister-in-law “to live in and not to be sold.” It’s unclear whether the will is conveying a life est or a FSA. If it’s a life est, then after Ms. White dies, the est reverts back to Ms. Lide’s heirs (her nieces and nephews). If it’s a FSA, then Ms. White gets all the proceeds. Held: Mrs. White got a FSA. There is a strong construct pref in interpreting ambiguous instruments as conveying FSAs rather than life ests. Baker John’s first marriage resulted in three children, his second marriage resulted in one child (who later died), his third marriage resulted in no children. John left all of his land to his third wife, Anna, and IF she died w/out issue, THEN the land was to go to his grandchildren. Anna took a life est and the grandchildren are contingent remaindermen (b/c their remainder fails if Anna is survived by issue) b/c the vesting of their remainder is subject to a condition precedent that must be met in order for them to take. Anna wants to sell the land and establish a trust, but needs for the contingent remaindermen to sell their ints too, or no one will be willing to buy the land. Held: The ct should mortgage the land or sell off enough of it to generate the investment income to satisfy Anna’s “reas” needs, which will be determined by the ct. There is a need for compromise. A ct cannot sell the land b/c that would burden the contingent remaindermen, but it also wants to provide for Anna. The ct should have set up a trust: A typical trust names the surviving spouse as a beneficiary (which allows her to retain the investment return from the assets, which are distributed among the contingent remaindermen upon her death). -Anna would have held an equitable life est. -John’s grandchildren would have held equitable reminders. Now, trusts are more comm than life ests. The law of waste defines the type of acts that permissible, or impermissible, by the life tenant. A should not be able to use the prop in a manner that unreas interferes with the expectations of B (the contingent remainderman). Affirmative waste: Liab results from voluntary injurious acts. Permissive waste: Liab results from neglect of the land and physical deterioration.

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Andrew Gniewek Prop Outline Last Updated 05/08/09 D. Leasehold Est: “to A for 99 years if A so long live” or alternatively “to A for 10 years.” -A gets a leasehold est; AND, O retains seisin. -This is a form of a defeasible est. -This is NOT a freehold est because the grantor, O, retains seisin. The holder of a leasehold est, like a TOY, does not have seisin (The leasehold is “if A so long live”). E. Defeasible Ests: Defeasible FSs can last forever, but they can also term upon the occurrence of a specified event or condition. *SoL begins to toll upon the occurrence of the specified event or condition in the case of a FSD. 1. FSD: “to A so long as the premises are used for school purposes” -A gets a FSD; AND, O retains a Poss of Reverter. -A’s FS is limited in that it will automatically term upon the occurrence of a specified event or condition (In this case, if it not used “for school purposes.”). -FSDs are more likely to generate forfeiture. -Language of Limit: “so long as;” “while used as;” “during;” AND, “until.” 2. FSSCS: “to A, but if the premises are not used for school purposes, the grantor as a right to re-enter and retake premises” -A gets a FSSCS; AND, O retains a Right of Reentry. -Upon the occurrence of the specific event or condition, O has a right to retake poss if she acts, but A’s pres poss int is not term’d until O so acts. -There is a construct pref for FSSCS since O has to take action to retake poss which is less likely to generate forfeiture. -Language of Condition: “if not used for;” “but if;” “provided, however;” AND, “on the condition that…” Marenholz 1941: The Huttons conveyed 1.5 acres to the School District. The conveyance read: “to be used for school purposes only, otherwise to revert to grantors herein.” The Huttons retained some fut int (either a Poss of Reverter or a Right of Reentry). The Huttons conveyed the rest of their land (38.5 acres) to the Jacqmains, and claimed to trans their fut int (either a Poss of Reverter or a Right of Reentry) to them too. 1959: The Jacqmains conveyed the land (38.5 acres) to Marenholz, also purportedly transring the fut int (either a Poss of Reverter or a Right of Reentry) to them too. 1973: The school closed. (Under IL law, a Poss of Reverter nor a Right of Reentry cannot be alienated, or devised; therefore, neither the Jacqmains nor the Marenholzes never acquired the fut int (either a Poss of Reverter or a Right of Reentry). 1977: Harry Hutton (who acquired the fut int (either a Poss of Reverter or a Right of Reentry) as the heir to the Huttons) purportedly transd to the Marenholzes his int in the land. If all Harry had was a fut int (i.e., if the conveyance to the School District was a FSSCS), he was barred from transring it under IL law; however, if the conveyance to the School District was a FSD (which is obviously the Marenholzes’ argument), then the land automatically reverted back to Harry Hutton upon the school’s closing (i.e., the occurrence of a specified event of condition). At the moment the school closed, Harry’s fut int became a pres poss int, a FSA, which was alienable under IL law. Held: The original deed was interpreted as conveying a FSD. The ct held that the language of the instrument outweighs the construct pref for FSSCSs. The ct relied on the words and construed “to be used for school purpose only” as words of limitation, which the ct understood to suggest that the est is to last only until the moment that the restrict was broken. The ct remanded the case to decide whether the school’s was a violation of the restrict that would have triggered the Poss of Reverter. 3. FS subject to an exec int:

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Andrew Gniewek Prop Outline Last Updated 05/08/09 -A FS subject to an exec int is created by language of limit or condition, and exists when a fut int is retained by a third party (i.e., an exec int). -A FS subject to an exec int ends automatically upon occurrence of a specified event or condition. *At comm law, O could not create a FSSCS w/ a Right of Reentry in a third party; O had to use two pieces of paper: O conveys a FSA to B; B then transs a FSSCS to A. Mountain Brow Lodge A case involving a gift deed to Mountain Brow Lodge of land by former members. The deed included restricts that the land was to be used by Mountain Brow Lodge and that they couldn’t trans it. The ct construed the conveyance as a FSSCS. Mountain Brow Lodge argues that the restricts are void and unenforceable on the basis that they are unreas restraints on alienation (i.e., the conveyance should be read as a FSA); however, giving Mountain Brow Lodge a FSA gives Mountain Brow Lodge a more valuable est than the grantors intended to give. The ct says that if we invalidate the restraints on alienation, we don’t invalidate the gift, just the invalid restricts, thus making it a FSD. Held: The ct found the use restrict was valid and enforceable, but removed the restraint on alienation from the deed. SoL for adv poss will begin to toll the moment of the violation for a FSD. Defeasible Life Ests: 1. Ests other than FS ests can be made into defeasible est (i.e., a defeasible life est). 2. Some restricts are judged to be excessive or against public pol (i.e., restricts against marriage or remarriage) Chapter 4: Fut Ints: Fut int holders are entitled to legal protection. The conveyance O “to A and his heirs” does not create a fut int b/c no living person has heirs. Thus, the conveyance above is a FSA w/out any restricts. 1. Ints Retained by the Transor (or Grantor), O Reversionary Fut Ints a) Reversion Reversion ints (i.e., the ints left in the transor (or grantor) when he carves out of his est a lesser est and doesn’t provide who is to take the prop when the lesser est expires) are alienable. *There’s a reversion int only when there’s a chance that poss will return to the transor (or grantor), O. O retains a reversion except in two circumstances: 1. Where poss cannot possibly return to O; OR, 2. Where O has created a defeasible FS, such that there’s a possibility that it will return to O but it won’t be a reversion (i.e., any fut int retained by O will be either a Poss of Reverter for a FSD; or, a Right of Reentry if a FSSCS) Rules: O will retain a reversion unless he creates either some kind of PPV FS est; OR, if he creates a vested remainder in some kind of PPV FS est. b) Poss of Reverter (a FSD) c) Right of Reentry (a FSSCS) 2. Ints Created in a Transee (or some third party) Non-Reversionary Fut Ints a) Vested remainder; b) Contingent remainder; OR, c) Exec int. Examples pg. 227 O conveys “to A for life, then to B and her heirs.”—A gets a PPV life est; B gets vested remainder in FSA. First Approach: If O has trans a FSD, then any fut int retained by O is a Poss of Reverter. If O has trans a FSSCS, then any fut int retained by O is a Right of Reentry. O retains a reversion in any other situation in which poss might return to O. 8

Andrew Gniewek Prop Outline Last Updated 05/08/09 Second Approach: O retains a reversion UNLESS O has trans some kind of PPV FS est or a vested remainder in some kind of PPV FS est. If O has trans a defeasible FS, than O will retain the appropriate fee for this kind of int (i.e., a Poss of Reverter; OR, a Right of Reentry). In Category 1 sts (i.e., NJ): “to A and the heirs of his/her body” creates a FSA in A and nothing in O. In Category 2 sts (i.e., those that recognize a fee tail): “to A and the heirs or his/her body” creates a fee tail in A and a reversion in O. *A reversion is alienable and devisable. O will have a fut int if there is any possibility that poss will return to him/her. His/her fut int will be a reversion unless it’s a defeasible FS (then it’s a Poss of Reverter; OR, a Right of Reentry). O will have a reversion unless O has created either some kind of PPV FS est or a vested remainder in some kind of PPV FS es. Fut Ints Created in Transees Non-Reversionary Fut Ints RULE: O will retain a reversion unless O created some of PPV FS est or a vested remainder in some kind of PPV FS est. Analysis: 1. Is the fut int a remainder or an exec int? 2. IF it is remainder, THEN is it a vested or contingent remainder? 3. What is the est the fut int is in? TEST: Is a remainder or an exec int?: 1. Must the int divest a previously vested int? 2. Would the int be directly following a PPV FS est? IF the answer to either question is YES, THEN the fut int is an exec int. IF the answer to both questions is NO, THEN the fut int is a remainder. A remainder is a polite int in that it takes poss at natural term of the preceding est. An exec int is a rude int in that it takes poss by butting in and divesting another person’s int. RULE: Any fut int in a defeasible FS est will be an exec int. RULE: Any fut int that follows a FS est must be an exec int. If there is a gap b/t A having the est and the remainderman getting it (where O takes poss again), then its an exec int because B’s int must rise up to get it. TEST: Is it a contingent or vested remainder?: 1. Is the remainderman ascertained? 2. Is there an unsatisfied condition precedent? (i.e., the natural term of the preceeding est doesn’t vest the int). IF YES to both, THEN it’s a vested remainder. IF either question is NO, THEN it’s a contingent remainder. *Every contingent remainder must vest or fail. If the contingent remainder fails, the est reverts to O. **Contingent remainders are alienable and divisible. Look at nature of condition to see if the contingent remainder can be passed along. IF the remainder fails at C’s death, THEN there is nothing to pass along. TEST: Is it a condition precedent or subsequent?: Look at the wording of the condition: IF it’s before or part of the gift, THEN it’s a condition precedent and a contingent remainder. IF it’s after the gift, THEN it’s a condition subsequent and NOT a contingent remainder (It’s a vested remainder subject to open or partial divestment (“to B, but if”). 2 Alternative Contingent Remainders (“if not B, then C”): If there are two alternative ints…

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Andrew Gniewek Prop Outline Last Updated 05/08/09 RULE: IF a contingent remainder is alternative with another int in a transee, THEN both ints are contingent remainders. RULE: IF the first fut int is a vested remainder in FS, THEN the second fut int in a transee will be a shifting exec int. A vested remainder automatically takes poss at the natural term of the preceeding est even if the vested remainder is subject to open or partial divestment. A contingent remainder does not take poss if and until the condition precedent is satisfied. Fut Ints Have 2 Problems: 1) They allow for the transor to control what happens in the fut without consideration of the best and highest possible use in the fut; AND, 2) They hinder alienability and prevent land from being used for its best and highest possible use. In order to reduce the amount of control that past owners have over fut use, we’ve established the 3 odd rules. 3 Odd Rules: 1. The Destructibility of Contingent Remainders: A remainder in land is destroyed if it does not vest at or before the natural term of the preceding est. If a remainder is still subject to condition precedent when the preceding est terms, the remainder is removed, and the right of poss moves on to next vested int. -Applies only to legal contingent remainders (i.e., those in land), -Does not apply to equitable contingent remainders (i.e., those in trust); -Does not apply to exec ints. -This rule makes land more alienable. Today, if remainder is still contingent when a preceding est terms, it becomes an exec int. -Now, it must divest O who has a defeasible FS, and no remainder can follow any kind of PPV FS est. 2. The Rule in Shelley’s Case: If there is a life est in an individual, and a remainder in that person’s heirs, the individual retains the remainder. IF there is: (1) One instrument that; (2) Creates a life est in A; AND, (3) Purportedly creates a remainder in persons described as A’s heirs or the heirs of A’s body; AND, (4) The life est and remainder are both legal or both equitable; …THEN A retains the vested remainder in FSA, which merges into A’s life est, thus forming a FSA. IF there are no interrupting vested remainders in FSA in b/t A’s life est and the purported creation of a remainder in A’s heirs or the heirs of A’s body, THEN the life est in A and the vested remainder in FSA in A merger and form a FSA in A. Doctrine of Merger: IF the life est and the next vested remainder in FS come into the hands of one person (not by original conveyance, but by someone subsequently transring one of the ints to A or B), THEN the lesser est is merged into the larger est (i.e., the vested remainder in FSA merges into the life est), PROVIDED there is no vested int in b/t the life est and the vested remainder in FSA. 3. Doctrine of Worthier Title: IF there is an intervivos conveyance of land by the grantor to a person, with a remainder or exec int in the grantor’s own heirs, THEN no fut int in the grantor’s heirs is created; rather, the grantor retains a reversion. Abolished in CA; IL; MA; MN; NY; NC; TX; etc. i.e., “to A for life, then to O’s heirs” creates a life est in A and a reversion in O. Rule Against Perpetuities

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Andrew Gniewek Prop Outline Last Updated 05/08/09 RAP is a rule against remote vesting; it is designed to prevent the creation of a fut int that might run too far into the fut. -Only ints in transees are subject to the RAP (not ints in transors) “No int is good unless it must vest, if at all, not later than 21 yrs after the death of some life in being at the creation of the int.” RAP insists that contingent remainders either vest of fail w/in a given period of time (in most cases, 21 yrs). For a remainder to vest, a transee must be ascertained and there must be no unsatisfied condition precedent. For an exec int to vest, it must becomes poss or vested. For a remainder or exec int to fail, it must become certain that the int will never vest. -We must show that the int is guaranteed to vest or to fail w/in a given period of time (in most cases, 21 yrs). It must be impossible to vest after the permissible time period (i.e., no later than 21 years after the death of some life in being at the creation of the int (i.e., a validating life)) Is this int guaranteed to vest or fail not later than 21 years after the death of A? (IF so, THEN A is a validating life.); OR, Could the int possibly be contingent more than 21 years after the death of A? (If so, THEN A is not a validating life.) TEST: RAP 1. Classify any fut ints in transees and determine whether they are subject to the RAP: a) Contingent remainder; b) Exec int; AND, c) Vested remainder subject to open (i.e., a class gift). 2. Prove that the fut int will either vest or fail not later than 21 years after the death of some life in being at the creation of the int (i.e., a validating life). -What’s the vesting event? -Who can affect that vesting event? Can they be a validating life? -If there is no validating life, create another validating life (i.e., Pick 12 random healthy babies to include in the conveyance.) Savings Clause: Whatever contingent int I, the grantor, have created must necessarily vest or fail not later than 21 years after the death of A’s issue, etc… A savings clause is designed to term the trust and distribute the assets upon the expiration of the lives in being plus 21 years, provided the trust has not already term’d. Class Gifts: Show that all members of the class will vest or fail w/in 21 years of a validating life—IF one member of the class will vest too late, THEN the whole class gift is void and should be stricken. Validating lives must be guaranteed to be born at the time of conveyance (A’s widow definitely isn’t born at the time of the conveyance and she’s in no way ascertained.). Symphony Space, Inc. Symphony Space, Inc. bought a building from Broadwest, as part of scheme to buy the building below market value and retain a prop tax exemption. Symphony Space, Inc. granted an option to Broadwest to buy back the building later. Broadwest was hedging that the real est market on Upper West Side would recover. Held: The option violates the RAP. The ct held that there was no reason to exempt options from the RAP. The ct held that there was no validating life: For each person that was alive at the creation of the int, we can construct a scenario for which vesting could take place 21 years after his/her death. RAP Reform: Wait-and-See Approach USRAP

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Andrew Gniewek Prop Outline Last Updated 05/08/09 Chapter 5: Co-Ownership and Marital Ints: Concurrent ests exist in situations where 2+ individuals have the right to PPV int. TIC: O “to A and B” Unity of Poss: Each tenant has a right to occupy the land and come and go on any part; Each tenant has an undivided 1/2 share; Each tenant can trans his/her int by intestacy, by will, or by intervivos conveyance. J/T: O “to A and B as joint tenants and not as tenants in comm” RoS: The surviving j/t becomes sole owner when the other j/t dies. At A’s death, A’s int simply terms, and B is left as sole owner. Nothing passes to A’s successors (When the int terms, no int can pass). -Assets in j/t are not part of a decedent’s est (They don’t have to pass through probate.). We need suff language to create a j/t and the 4 unities: Time–Each j/t’s int must be acquired, or vest, at the same time. Title – Each j/t must acquire title by the same instrument or by joint adv poss. A j/t may never arise by an intest succession or any other act of law. Int–Each j/t must have equal undivided shares and identical ints measured by duration. Poss –Each j/t must have a right to poss of the whole. After creation, 1 j/t can voluntarily give exclusive poss to the other j/t. *There is a construct pref for a TIC. Where there’s ambiguity, a ct will interpret the conveyance as created a TIC. J/ts can defeat the RoS by making a conveyance (though not by will; it must be during the tenant’s life). In conveying his/her int, a j/t destroy the 1 of the 4 unities (They’ve taken at diff times under diff instruments. Even if that person conveys it back to A, it’s still at a diff time under a diff instrument; and so, the j/t is destroyed.) J/t Cases: Riddle Mrs. And Mr. Riddle had a j/t. Before her death, Mrs. Riddle wanted to sever the j/t so that Mr. Riddle wouldn’t get the full est at her death. Mrs. Riddle conveyed to herself an undivided 1/2 share to break the j/t and convert it to a TIC. Issue: Is this suff to sever the j/t? Is it OK to sever a j/t w/out use of a strawman? Held: The severance is valid: 1 tenant can unilaterally sever the j/t w/out use of a strawman. We shouldn’t be insisting upon use of strawmen to sever a j/t, but we still may require that she sever the j/t and then uses another paper to convey/devise it to someone else. A j/t can be severed w/out the consent or knowledge of the other j/t. There’s no recording req either. Making a recording req might help to ensure that a j/ t wouldn’t hold on to the document secretly and wait until the other j/t dies. The severing document is effective immediately upon writing. Harms Brothers John and William Harm are co-tenants on land. Brother John died, but before his death, he had taken out a mortgage on the land. Issue: Does a mortgage by 1 j/t sever the j/t? John devised his entire est to Sprague. If the mortgage was an effective severance, at John’s death, Sprague would have John’s int. If mortgage was not an effective severance, John’s int terms at death and William becomes the sole owner of land. Held: A mortgage does not sever a j/t: It’s a lien, not a conveyance of title. A j/t loses the RoS only if a j/t does so by an act that makes it perfectly clear that the the j/t wishes to destroy the RoS. Lien Theory Sts (i.e., IL): A mortgage is simply a lien, not a conveyance of title. -Liens are extinguished upon the death of the j/t: Their int ceases to exist at his/her death, so the lien must cease to exist as well. Title Theory Sts (i.e., PA): A mortgage is a conveyance of title.

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Andrew Gniewek Prop Outline Last Updated 05/08/09 Leases: A lease does not survive the death of the j/t lessor (Leasehold ests and life ests don’t sever the j/t, only a trans of a PPV FS est will sever the j/t.), but they are extinguished at the j/t lessor’s death. -A lease doesn’t demonstrate intent to destroy the j/t. 3. J/t Bank Accts Presumption of Survivorship: O opens bank acct as a joint acct with A. O deposits $10,000. A deposits nothing. O dies. We assume that O meant was for A to have a j/t back acct w/ a RoS, not merely a convenience acct. Presumption in Favor of a Payable on Death Acct: O deposits everything and is still alive. A withdraws all funds for A’s use. We assume that O does not intend to give A any PPV int in the money, and that all O intended was for A to take the money at his/her death. A PoD acct functions the same as a will: O retains sole control, and can withdraw at any time w/out A’s consent; AND, A doesn’t get anything until O dies. Rebuttable Presumptions: Either a j/t acct or a convenience acct. Partition: Law allows co-tenants to demand partition. Creditors can use partition to get the money equivalent of the debtor’s int in the land. Creditors obtain their share of the land and then sell it off, since they don’t have any int in remaining a co-tenant with the other tenant. Partition In Kind (favored)—We don’t want to sell a piece of land out from under someone and we don’t want to force them to sell. Partition By Sale (disfavored) is only ordered under two conditions: 1. Land can’t be physically divided practicably; or, 2. Ints of the owners would be better served by partition by sale (In some situations, two half lots aren’t less valuable than one large lot.) The ct must weigh the int of all the co-tenants, not just those seeking partition. Partition by sale is ordered when waste would occur by a partition in kind. Delfino D and V are co-tenants of a tract of land. D has 11/16 int and V has 5/16 int. V lived on the tract of land and also operated a garbage hauling business on his land. The rest of the land was vacant. D is seeking a partition by sale (i.e., to sell it all off and divy up the profits), and V wants a partition in kind. Held: The ct ordered a partition in kind. D didn’t meet the burden of the two conditions to overcome the presumption favoring a partition in kind: V’s int in maintaining her home outweigh D’s int in selling the land for profit. Co-Tenants’ Responsibilities: GENERAL RULE: In the absence of any agreement to pay rent or ouster, a co-tenant in poss is not liable to any other co-tenants for the value of his use and occupation of the land. Ouster exists in two situations: 1. Adv Poss: A claim of absolute ownership and a denial of the co-tenancy relationship by an occupying co-tenant, thus tolling the SoL. 2. Liab for Rent: When an occupying co-tenant refuses a demand of the other cotenant(s) to be allowed physical use and enjoyment of the land, regardless of a claim of absolute ownership. Spiller Co-tenants S and M own a building that is leased out. After a lease expires, S moves in and starts using the building as a w/h. M sends a letter to requesting that S pay him rent (1/2 of the fair value, since his share is 1/2) since he’s using the w/h. Issue: Is a co-tenant in poss liable for rent? Here (i.e., the “liab for rent” context), it must be a demand by the co-tenant for physical use and enjoyment of the land and denial by the other co-tenant. If such refusal occurs, then the ousting co-tenant is liable to the ousted co-tenant for rent)

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Andrew Gniewek Prop Outline Last Updated 05/08/09 Held: Any co-tenant has the right to occupy the whole; that is, there is no liab for rent unless a co-tenant denies the other co-tenant’s request for physical use and enjoyment of the land. Here, a letter requesting rent isn’t enough. A co-tenant must actually demand entry. 3 Views of Liab for Rent: 1. MAJORITY VIEW: (SPILLER) A co-tenant in poss has to pay rent only if they deny entry to the other co-tenant(s) (This may encourage partition.). 2. MINORITY VIEW: (HOLT) A co-tenant in poss has to pay if s/he refused another co-tenant’s demand to vacate or pay rent. 3. A FEW JURIS: (COHEN) A co-tenant in poss always has to pay rent (This provides certainty.). Adv Poss Context: A co-tenant out of poss isn’t likely to know that the co-tenant in poss is asserting claim of absolute ownership. In order for the SoL to begin tolling, a co-tenant in poss’s conduct must be such that the co-tenant knew, or should have known, that the co-tenant in poss was making a claim of absolute ownership. Swartzbaugh Mrs. and Mr. Swartzbaugh are j/t of 60 acres of land with a walnut farm. Mr. Swartzbaugh leased out 4 acres of the land for a boxing ring to Sampson against Mrs. Swartzbaugh’s wishes. Mrs. Swartzbaugh sought to cancel the lease. Issue: Can a j/t lease their int? Held: The action of 1 j/t w/out the consent of the other j/t cannot bind or prejudicially affect the rights of the other j/t, but a lease to all the joint prop by 1 j/t doesn’t bind or prejudicially affect the other j/t’s rights. Therefore, the lease doesn’t nullify the j/t, and it is is valid to the extent of Mr. Swartzbaugh’s int in the joint prop. Accting for Benefits; Recovering Costs Rents and Other Money Collected: A co-tenant who collects rents and other money from third parties arising out of the co-owned piece of land must acct to the other co-tenant(s) amounts received, absent ouster. Taxes, Mortgage, Etc.: A co-tenant paying more than his share of taxes, mortgage payments, and other necessary carrying charges gen has a right to contribution from the other co-tenant(s), at least up to the amount of the value of their share in the prop (1/2). A co-tenant in poss does not get reimbursed. IF he pays for it, THEN the other co-tenant(s) can refuse to contribute. Repairs: Necessary Repairs: Most juris find that a co-tenant paying for necessary repairs has no affirmative right to contribution from the other co-tenant(s) in absence of an agreement to do so. Cts don’t want to get involved with determining which repairs are necessary and which are unnecessary. Improvements: A co-tenant has no right to contribution from the other cotenant(s) for improvements, but if the land is partitioned in kind, the improving co-tenant will get the improved portion as long as it doesn’t diminish the ints of the other co-tenant(s), if possible. If not possible (i.e., in a partition by sale), then we will sell the land and credit the improving cotenant for the value (not the cost) of the improvement. If it helps the value of the land, the improving co-tenant benefits from his/her improvement; if it hurts the value of the land, the improving co-tenant will bear the loss of his/her improvement. Essentially, the improving co-tenant gets a credit for his/her improvement. B. Marital Ints TbE (recognized by NJ and every st touching it): A TbE requires proper wording in the conveyance document and the 5 unities: Time; title; int; poss; and, marriage/civil union. The presumption is that conveyance to a husband and wife including general j/t language is suff to create a TbE.

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Andrew Gniewek Prop Outline Last Updated 05/08/09 If not married at time of the creation of the est, then it’s only a j/t (It doesn’t matter that they subsequently marry; their subsequent marriage will not transform a j/t into a TbE.). If a TbE is mentioned in the conveyance, and it’s not possible (i.e., the couple is not married at the time), then the conveyance will create a j/t in its place (even in the face of the presumption favoring TiC so as to meet intent of the grantor). In a TbE, partition (either in kind or by sale)/destruction of the RoS is allowed only when both parties agree: A party can’t unilaterally trans his/her way out of a TbE (unlike a j/t, in which a conveyance by one co-tenant will destroy the other co-tenant’(s) RoS). H or W can convey everything but H or W’s RoS. Even if H’s creditors reach his int, W will retain her RoS, and should H predecease W, H’s int goes to W. Sawada H was involved in a car accident and owes the Endos mon dams in tort. He and his wife were co-tenants in a TbE. Issue: Can a creditor reach H’s int in a TbE est? Held: In HI, land held in a TbE may not be reached by separate creditors of either H or W. MWPA give W exclusive control of assets titled in her name. Under the MWPA, W can do as she pleases with assets titled in her name, and H’s creditors may not reach the W’s land. 25+ sts have abolished TbEs; however, NJ and every st touching it continue to recognize TbEs. TbE Approaches: Group I (MA; MI; AND, NC): Group I sts are unaffected by the MWPA and continue to recognize the comm law TbE (H and W’s assets are subject to H’s exclusive control; H may convey the entire est except W’s RoS; W can’t convey anything.). Group II (AK; AR; NJ; NY; AND, OR): Group II sts allow a creditor of one spouse to levy on that spouse’s int in a TbE for their separate debts, but is still subject to other spouse’s RoS. Creditors can reach H’s right to poss, but they only takes H’s int and RoS. They can’t touch W’s ints and W retains her RoS. Creditor and non-debtor spouse become co-tenants for a period of time. NJ; AND, NY: A single-family home will not be partitioned. Group III (DE; DC; FL; IN; MD; MO; PA; RI; VT; VA; WY; AND, HI): In Group III sts, an attempted conveyance by either spouse is wholly void, and the est is not subject to the separate debts of either spouse. Individual creditors of a spouse cannot reach that spouses int in land held in a TbE. Creditors can only reach that prop which the spouse could have unilaterally conveyed w/out the other spouse’s consent. In Group III sts, spouses can shelter a large portion of their assets from the reach of creditors. Group IV (KY; AND, TN): Group IV sts recognize that a contingent RoS for either spouse is separately alienable by them and attachable by creditors during marriage. Use and profits can’t be alienated or attached. Marital Prop: 1. Modified Comm Law System: Each spouse gets to control whatever assets are in his/her name.Spouses have to share assets only at the end of their marriage (i.e., divorce or death) 2. Community Prop System (Only 10 sts recognize a community prop system, but those 10 sts comprise 1/2 of US pop): Earnings of either spouse belong to the marital couple as part of communal ownership. Chapter 10: Private Land Use Controls; The Law of Servitudes Servitudes: 15

Andrew Gniewek Prop Outline Last Updated 05/08/09 1. Easements: 2. Covenants: Real Covenants (i.e., enforceable at law): Equitable Servitudes (i.e., enforceable in equity): The serv est (S) has poss of land; AND, The dom est (D), has a non-poss int, but some kind of servitude on S’s land. An affirmative easement gives D the right to enter or perform some act on S’s land. A negative easement gives D the right to prevent S from doing certain things on S’s land. Easement Appurtenant (Construct Pref) -An easement appurtenant runs with the land. Easement in Gross: -An easement in gross doesn’t run with the land. Willard McGuigan sold 1 lot to Peterson, and later sold another lot to him. When McGuigan sold the other lot to Peterson, he attempted to grant a church the right to use the lot for parking. Under the language in the conveyance, the land must be used as a church; otherwise, the easement is terminated. Issue: Whether the easement could be reserved for a third party? Comm Law Rule: A transaction b/t A and B cannot grant an easement in a third party, C. Held: Although the comm law rule is still followed in many juris, the ct here rejects it, instead taking into consideration the grantor’s intent, which the ct say can’t be defeated by the comm law rule. New Rule: In deeding land to one person (A), a grantor may effectively reserve or vest an int in the same land to a third party (C). Holbrook The Holbrooks owned land on which there is a roadway that the Taylors use. The Taylors are trying to establish that they had acquired a right to use the roadway (i.e., an easement). The Holbrooks bought the land in 1942, and gave permission for a haul road to be cut and used for delivery to the coal mine. The road was not used continuously. The Taylors came into poss of the land in 1964 and built a house nearby, using the road for construction and access during construction. The Holbrooks now demand $500 for letting the Taylors use the road. The Taylors argue for an easement by prescription (similar to adv poss). The Holbrooks admitted they had allowed the Taylors to use the road. Then, the Taylor argues easement by estoppel. Held: Under the Taylors’ estoppel theory, an easement was created when the Holbrooks gave permission to the Taylors for use of the roadway and when the Holbrooks made improvements to the roadway. Easement w/out a Writing: 1. Easements by Prescription: Similar to adv poss-->Use of the easement must be w/out permission. -Continuous use of the easement for the stat period w/out permission; -Use of the easement must be open and notorious, hostile, and exclusive. An alternative to easement by prescription is the “fiction of the lost grant”: -If 20 yrs of continuous use is shown, it is assumed that a grant of the easement had been made in the past, but has since been lost. -The Pl must show that his/her use was not permissive and that the owner of the land did not object. 2. Easement by Estoppel: Permission and reliance (i.e., Holbrook) -The Pl must reas rely on some kind of oral stment giving permission and s/he must also improve the land on which the easement lies. 3. Easement Implied by Prior Existing Use: (i.e., Van Sandt) 16

Andrew Gniewek Prop Outline Last Updated 05/08/09 -There must have been 1 original comm owner prior to the division of the land; AND, -There must have been an existing use prior to the division of the land. 4. Easement Implied by Necess: -Some sts require strict necess, but some only require reas necess under the circs. -An easement implied by necess lasts only as long as the necess remains. -Reqs for an easement implied by necess: 1. Unity of ownership of the allegedly dom and serv ests; 2. Use of the easement is a necess, not merely a convenience; AND, 3. The necess existed at the time of severance of the two ests (i.e., the division of the land). -Public Pol: We want to avoid the creation of landlocked land, which would result in economic waste since the owner wouldn’t be able to use the land; and so, the land wouldn’t be very alienable. -Intent: We want to honor the intent of the parties: Grantors of land wouldn’t convey land to which there is no access. Van Sandt 3 adjacent lots (Lot 19; Lot 20; AND, Lot 4) were owned by Mrs. Bailey. Lot 4’s sewer drain ran under Lot 20 and Lot 19 into the sewer connection on Highland Ave. Mrs. Bailey sells Lot 19, and then Lot 20, without mention in the conveyances or in person that there are sewer lines running underneath the props. Van Sandt owns Lot 19 (the lot closest to the road), and his basement floods with sewage from Lot 20 and Lot 4. He didn’t know about the sewer line. He sues the Roysters (then owners of Lot 20) and Gray (then owner of Lot 4) to cut off that sewer pipe so that his house wouldn’t flood. Dfs want to show that an easement exists. Held: Mrs. Bailey had a “quasi-easement” on her own land when she owned all the land—she burdened some parts of her land for the benefit of other parts of her land. When divided her land and sold tracts of it, her comm ownership and prior existing use created an implied easement. Van Sandt had constructive notice—he should have known about sewer line. Easement by Implied Grant: An easement created for the purchaser’s benefit. This is more favorable to trad cts. The purchaser needs more protection since the seller knows more about his/her land. Easement by Implied Reservation: An easement created for the seller’s benefit. Easements by implied reservation often require strict necess. RULE: When a grantor sells a quasi-serv part of the land first, s/he creates an easement by implied reservation. When a grantor sells a the quasi-dom part of the land, s/he creates an easement by implied grant. RULE: A bona fide good faith purchaser of a serv est is bound only if we can say that s/he was on notice (actual or constructive) of the existence of the servitude. Othen A case involved tracts of land bordering Belt Line Road, all of which were originally owned by Hill. In 1896, Hill conveyed 100 acres that came into Rosier’s poss in 1942. In 1897, Hill conveyed 60 acres, that came into Othen’s poss in 1904. In 1899, Hill conveyed 16.31 acres that came into Rosier’s poss in 1924. In ?, Hill conveyed 53 acres 1913 that came into Othen’s poss in ?. Hill owned a land around these tracts of land so it’s possible that these tracts of land were landlocked when he sold his 100-acre lot. IF so, THEN Hill should have reserved an easement for himself. Othen’s land does not touch Belt Line Road, but he’s been using a path through the Rosier’s 16.31-acre lot and 100-acre lot. Rosier has maintained the road until it flooded, after which he built a levee, which blocked the path. Othen wants to establish that Rosier cannot block the path, and that he has an easement for use of the path, even though there is no writing. Easement Implied by Necess: 17

Andrew Gniewek Prop Outline Last Updated 05/08/09 This ct requires strict necess (but not all cts do), and the burden on Othen is to prove that the path was Hill’s only access to Belt Line Road at the time of the conveyance -Othen failed to prove that the sale of Rosier’s 100 acres was the event that landlocked Othen’s land. At the time of sale of Rosier’s 100 acres, Hill still owned the 16.31-acre lot, so he couldn’t have had an easement over that piece of land. Easement by Prescription: Period B/f 1906: The important issue is whether the use was continuous. Hill moved off the land for a period of time, and it’s difficult to tell whether this is the same path. Period After 1906: Othen’s use was permissive and not adv. Held: Othen’s use of the path was permissive. Therefore, Othen had only a license to use it, which did not, and may not, ripen into an affirmative right. Matthews Public Trust Doctrine: St holds the land from the ocean to the high tide mark in public trust for the public ‘s physical use and enjoyment. Bayhead Improvement Association owns 6 tracts of land and 42 leases of shorefront prop. BIA only allows sand to be used by members of the Association during certain times, and membership was restricted had to residents. Held: The ct strikes down the residential req and held that BIA must allow the public access to the beach (for passage and repassage) and also must allow intermittent use of the dry sand for rest and relaxation before and after swimming. This is the creation an easement w/out a writing; the public has a right to “reas” access. The benefit of an easement can run in favor of fut owners of the dom est. The burden of an easement can run against fut owners of the serv est. Miller In 1899, Pocono Springs Water Ice Company granted an easement to Frank Miller to fish and boat in the lake. In 1900, Frank grants 1/4 of his int to his brother, Rufus, for “fishing, boating, and bathing” rights, even though Frank never had any right to bathe. Rufus dies and the executors of his est grant a license to fish, boat, and bathe to the Lutherans. The right to fish and boat is a profit (i.e., taking something off of the land). The rules for profits are similar to the rules for easements. -Here, the right to fish and boat is an easement in gross. It is personal to Frank. Frank is trying to get an injunction to stop the Lutherans from bathing. Frank argues that since he never had any right to bathe, he couldn’t convey the right to Rufus, and Rufus’s est couldn’t convey the right to the Lutherans. Held: Frank and Rufus acquired the right to bathe by prescription. Easements in gross are assignable, subdivisible, and apportionable, but must be used as “one stock” (i.e., the holders of the servitude must operate through unanimous consent). Rufus has to have Frank’s permission to grant the license to the Lutherans to bathe. Easements and profits in gross are assignable, subdivisible, and apportionable. But for any servitude to run, the original parties must have intended for the servitude to run. Brown A case involving an easement over A (i.e., the owner of the serv est) for owner of the dom est, B, to access their land. The Browns own B and then buy C, a lot adjacent to B. The Browns want to move their house to the border of lots B and C, but A allow them use their easement to access lot C, since the easement was originally created only for the benefit of B, the dom est. The Vosses blocked off the easement (not just for the improper use to C but also for the proper use to B). The Vosses waited until the Browns relied on the use of their easement and spent nearly $11,000 in repairs and construction before bringing an action for dams and injunc relief. 18

Andrew Gniewek Prop Outline Last Updated 05/08/09 Held: The ct says they might allow a misuse to continue in exchange for some payment of dams, as opposed to old bright line rule that say the easement may be used only for the benefit of the dom est. The Vosses only had rights to use the easement for the benefit of B, and while their use is only a technical misuse, and does not increase the Dfs’ burden in any way, it is still a misuse. But here, if dams are awarded, the Pl’s misuse may continue. RULE: An easement appurtenant can only be used for the benefit of the dom est. Laches: An unreas delay in seeking relief to the detriment of the other side. The ct may deny an injunction to a party that is guilty of laches. RULE: The location of an easement, once fixed by the parties, cannot be changed by the owner of the serv est w/out the permission of the the owner of the dom est. NEW RULE: S’s change is OK, as long as it doesn’t burden the dom est or interfere with the dom est’s physical use and enjoyment of his/her land. Presault A right of way was created in 1899 for railroad tracks across the Presaults’ land. The “rails to trails” program converted the right of way to a nature trail for public use. The Presaults claim that fed gov’t’s authorization of the conversion of the right of way to a nature trail for public use constituted a taking. IF it was a taking, THEN the fed gov’t must pay the Presaults compensation (i.e., eminent domain). Held: The grant for the right of way created an easement, not a PPV FS est (The construct pref to construe the grant against any party w/more bargaining power, which in this case was the fed gov’t). Since it’s not a PPV FS est, the Presaults still have rights. The original parties couldn’t have reas contemplated this use, and there’s a much larger burden on the Presaults. Furthermore, the use exceeds the scope of the easement. The easement was abandoned when the fed gov’t removed the railroad tracks and shut down the railroad. Since the easement was abandoned, the creation of a nature trial for public use did constitute a taking, thus requiring compensation. Abandonment: Under st law to abandon: -There must be non-use; AND, -Acts by the owner of the dom est manifesting a pres intent to relinquish the easement; OR, -A purpose inconsistent with fut use of the easement. General Rule of Taking: -Occupation: Any physical occupation by the fed gov’t requires compensation. -Regulation: The imposition of regulation (i.e., You may only use your land as park land) may require compensation if it’s felt that the regulation goes “too far”. Negative Easements: Tradly negative easements were only recognized in 4 cases: 1) Blocking windows; 2) Interfering w/ air flowing to your land in a defined channel; 3) Removing the support of your building; and, 4) Interfering w/ the flow of water in an artificial stream. Trad Rule: For the burden to run, we need: 1) Intent in the grant for it to run; AND, 2) That the successor owner to the serv est be on notice (actual or constructive) of the existence of the easement. Cts are reluctant to recognize other forms of negative easements, instead choosing to recognize them as “covenants.” How do we enforce?

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Andrew Gniewek Prop Outline Last Updated 05/08/09 1. Real Covenant Theory: Covenants enforceable at law under the real covenant theory are not just enforceable by and against the original parties, also by and against successors owners as well. The appropriate remedy is mon dams. There are strict priv reqs: Horizontal priv concerns the relationship b/t the original parties (W/out horizontal priv, the burden does not run to successors owners.). Vertical priv concerns the relationship b/t the original parties and successors owners. A B | | D C The Running of a Burden: For a burden to run, we must have horizontal priv; however, the new Rstmt tries to abolish this rule. Trad law: For a burden to run to C, there must be horizontal priv created by a grantor/grantee relationship. In the UK, only a landlord-tenant relationship constitutes horizontal priv. In the USA, any sort of grantor/grantee relationship constitutes horizontal priv *The promise must be in the original grant. The Running of a Benefit: For the benefit to run, we don’t need horizontal priv. For benefit to run to C, strict vertical priv is no longer required, instead it is suff that successor C be anything but an adv poss. Trad law: C must take exactly the same est as A, since the theory was that benefit ran w/ the land. R3D differentiates b/t a negative covenant (i.e., a promise to restrict S’s use of the land) and an affirmative covenant (i.e., an agreement by S to do something on his/her land) -More or less lax on the running of the burden on a negative covenant. -More or less strict on the running of the burden on an affirmative covenant. We want to be careful about making a successor owner carry out an obligation that had been promised by the original owner. Tulk Pl sold Leicester Square to Elms, w/a covenant to keep it as a garden and maintain it. These restricts probably meant that Elms paid a discounted price for the land. Elms sold the prop to the Df, who now wants to build on it land. Pl sought an injunction to stop the Df from using the land for anything but a garden (i.e., to enforce the original owner’s negative covenant). An issue RE: the running of the burden, since there has been a change in ownership on the serv est’s side. Held: The burden of Elm’s negative covenant runs to the Df: Df had notice (He even admitted to it); It’s unfair to let someone buy prop at a discounted price b/c it’s subject to a covenant, and then let him sell the land to someone else at full price and not make the successor owner adhere to the original covenant. 2. Equitable Servitudes: A promise is enforceable in equity against a successor owner. A lack of horizontal or vertical priv does not restrict the enforceability of equitable servitudes. Real Covenants: Equitable Servitudes: Dams Injunction Horizontal and vertical priv No horizontal or vertical priv; RATHER, Notice (actual or constructive) is required.

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Andrew Gniewek Prop Outline Last Updated 05/08/09 Run with the land matter no notice (actual or

The running of a burden: A burden runs with the land: No who gets the land, he is bound unless he has constructive).

The running of a benefit: A benefit runs with the land: The successor owner has to have succeeded to part of the dom est. It doesn’t matter if you take part of est b/f or after the covenant. Exam: Violation of a restrictive covenant by a successor to the serv est. Equitable servitudes. Discuss real covenant theory if equitable servitudes do not work (Real covenant theory is an afterthought nowadays). Equitable servitudes can gen only be created by a writing; however, there are ways to get around the writing req. Sanborn ? Held: ? Reciprocal implied negative easement: It is an implied benefit and/or burden on successive owners; It runs w/ the land for the mutual benefit of both successor owners; It must start with a comm owner, andit is never retroactive; It must arise out of a benefit accorded to neighboring land retained by that original owner. Cts are hostile to negative easements except for 4 narrow categories and are hesitant to call it a reciprocal implied negative easement, instead calling it an “implied equitable servitude.” In the ct’s view, there was a scheme of restricts from which we can infer an implied equitable servitude. *Not all juris accept the Sanborn holding. CA doesn’t imply servitudes, it requires a writing. **R3D: There must have be evidence that there is a common scheme of development of a residential subdivision —We don’t want to be unfair in binding those who never agreed to the restrict and who aren’t able to find out about a common scheme of development of a residential subdivision. RULE: Under this theory, a tract of land can be bound even though no owner of that land ever made an express promise to bind it. *There must be a comm owner. **There must be a common scheme of development of a residential subdivision that existed before the comm owner sold the land. Neponsit Prop Owners Ass’n Neponsit Realty was the original owner, who developed a residential area and later conveyed it to Dyers w/a covenant to pay an annual charge $4/2,000 sq feet (about $20 annually). If the charge is not paid, there will be a lien placed against the land, and the land can then be sold out from under Dyers in order to pay this charge. The money collected was used to maintain roads, sewers, etc. According to the deed, the covenants were supposed to run with the land and be enforceable at law against successors owners. Neponsit Realty | Neponsit Prop Owners’ Ass’n

Dyers | Emigrant Bank

Here, the successor to the benefit of the covenant is trying to enforce the covenant against the successor to the burden. Issue: Burden: Does this covenant touch and concern the land? In order for the burden of a covenant to run, it must touch and concern the land that is being burdened. Benefit: Does the benefit run to Neponsit Prop Owners’ Ass’n? Here, we have a problem of vertical priv b/t Neponsit Realty and Neponsit Prop Owners’ Ass’n, since the Ass’n doesn’t own any land and wasn’t the successor to any int in land. 21

Andrew Gniewek Prop Outline Last Updated 05/08/09 Held: Benefit: Here, we have priv in substance, but not in form. The Ass’n repress the ints and is the agent of the land owners who do own land the original owner owned. The Ass’n is therefore the agent to the successor owners. Burden: Must we ask if it touches and concerns land in such a way that the burden can run against successor owners? TEST: Does the covenant impose a burden on an int in land and increase the value of a diff int in the same related land? Does it affect the legal relations of the successor owner? 1 TEST: Those that depend on capacities and characteristics of particular individuals vs. Those who don’t. -Touch-and-concern is 1 way of asking whether the burden of allowing the covenant to run exceed the benefits of allowing it to run. R3D: Abolition of the touch-and-concern req Instead, we look at bottom line issue: Is the covenant against public pol? A covenant violates public pol if it: 1) Is arbitrary, spiteful, capricious; 2) Unreas burdens a fundamental const. right; 3) Imposes an unreas restraint on alienation; 4) Imposes an unreas restraint on trade or competition; AND, 5) Is unconscionable. Caullett Stanley (a developer) sells land to the Caulletts (approx 1 acre). In the deed, the Caulletts promise that Stanley would have right to build the original dwelling on the lot and tried to write in that the covenant runs with the land. The Cauletts argues that the restrict is void and should be stricken, the ct agrees to strike the covenant from the deed b/c: 1) The terms of K are ambiguous and vague, and too indefinite to be enforced; AND, 2) The covenant didn’t touch and concern the land—It was more of a personal agreement among two parties, and thus the burden cannot run. The burden cannot run, because the benefit is clearly personal to the grantor. The benefit doesn’t touch and concern the land; it’s not an covenant appurtenant, it’s a covenant in gross. Only a promise limiting use of the land will run with the land; A burden of an affirmative covenant doesn’t run w/the land. Covenant Rules: For the burden of covenant to run (Under real covenant theory or equitable servitudes): -The benefit AND the burden have to touch and concern the land; -The benefit cannot be in gross. For the benefit of a covenant to run: -Only the benefit has to touch and concern the land. Easement Rules: A burden in gross of an easement can run (i.e., a utility co. that runs wires over land) as long as the owners have notice (actual or constructive), which they will because it’s gen recorded at the cthouse. R3D rejects the Caulett holding: The burden of a covenant in gross can indeed run, except when its benefit is so numerous that it’d be hard to identify the benefitees. Change of Circumstances: If the restricts are still of substantial value to benefitors, then the ct will uphold the restricts. R3D: §7.10: (1) If the use is impossible, we can modify a term and award mon dams; OR, (2) If the use is no longer suitable, we can modify a term still to preserve the benefits of the original servitude. 22

Andrew Gniewek Prop Outline Last Updated 05/08/09 Western Land Co. A case involving a residential subdivision that restricted land use to single-family dwellings. Western Land Co. (the original developer that put the covenant on the land) wants to build a shopping ctr. Western Land Co. argues that because of a substantial change in the neighborhood, the covenant should be term’d. It seems that the land is unmarketable for single-family residences, since there’s lots of traffic and the area is noisy. Test: Look to whether there’s a benefit to those inside the subdivision (not just the particular lot that the developer wants to turn into a shopping ctr, but the entire subdivision). Held: Ct upheld the restricts of the covenant, b/c the restricts are still of substantial benefit. Rick A case involving a residential restrict on land sold to West by Rick. Later, Rick wanted to sell the rest of the land to an industrialist to build a hospital, on condition of the rezoning of tract to industrial use. West vetoed the rezoning, and was able to effectively block it. Held: When restricts are not outmoded and when it affords real benefit to the person seeking enforcement, no consideration can be given to an award of pecuniary dams to Df in lieu of enforcement. Pocono Springs Civic Ass’n The MacKenzies refused to pay the Ass’n fees on a tract of land that they’ve tried to abandon b/c it was useless (i.e., they couldn’t build a sewage system underneath the land). The MacKenzies continued to try to give the land back, to give the land away, and to sell the land at a tax sale, but they couldn’t get rid of it. Held: ? Hill introduces a doctrine for interpreting the scope of the covenant: To interpret the covenant narrowly and favor the free use of the land. Nahrstedt A holding deferential to restricts that are made in a comm int comm (i.e., a condo). The ct will be willing to uphold the restricts if there is rational justification for them. We don’t look at individual facts, but we look at a general run of cases: Is it reas or rational to have a restrict against cats?

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