14.

07 Entailment Statutes Convert Fee Tail Estates into More Acceptable Estates In most states, limitations of the varieties described in 14.03 now create an estate in fee simple in the first taker.

Property Hit List Capture rule and rationale soli Adverse Possession: COHEN; you can only adversely possess what the owner youre possessing has to give. Estates: Present Possessory Interests: FSA, FT, FSSCS, FSD, FSSEL, FSWEL, LE, Estate for years Future Interests: Reversion, Possibility of Reverter, Right of reentry, Indefeasibly VR, VR subject to open, VR subject to complete defeasance, CR, Shifting EI, Springing EI Tricks: Rule in Shelleys Case (to A then to As heirs); Worthier title (O to A then to Os heirs); Wilds Case (O to A then to As children); Rule Against Perpetuities; Doctrine of Merger; Destructibility Doctrine Leaseholds: Landlord, Tenant, sublease, assignment Estate for years, periodic tenancy, tenancy at sufferance; Notice and termination of a leasehold Sublease and Assignment Concurrent Estates: JT EQUAL SHARE, joint tenant (4 Unities), joint tenant with right of survivorship (4 unities + marriage)-unalienable w/o both spouses consent, tenant in common. Servitudes: Easements-Appurtenant or In Gross, affirmative or negative, ways to obtain an easement (grant, prescription, implied); Covenants-contracts- vertical/horizontal privity; statute of frauds applies to servitudes. COMMON PLAN, CHANGE IN HOOD

Case List: 1. Capture a. Pierson v. Post (capture rule) b. Ghen v. Rich (whale hunting) c. Keeble v. Hickergill (duck pond decoys) d. Moore v. Regents of University of CA (body parts as personal property) 2. Possession: a. Jaque v. Steenberg Homes (intentional trespass and punitive damages) b. State v. Shack (public workers cant be excluded from property) 3. Adverse Possession a. Van Valkenburgh v. Lutz: Adverse Possession in Yonkers NY (feud of neighbors) b. Manillo v. Gorski (AP when house steps encroach on anothers property (mistaken belief) c. Howard v. Kunto: summer occupancy enough to = AP/color of title concept d. Marengo Cave: underground cave usage =/=hostile/notorious for AP e. OKeefe v. Snyder: AP of real property (painting) 4. Fees and Possessory Estates a. White v. Brown: Fee estates-interpretation of LE or FSA b. Baker v. Weedon: sale of land affected by life estate/future interests/economic waste c. Mahrenholz v. County Board of School Trustees: FSD/FSSCS interpretation d. Mountain Brow Lodge No. 82, Independent Order of Ldd Fellows v. Toscano (didnt talk about in class): FSD or restraint on alienation (covenant?) e. City of Palm Springs v. Living desert Reserve: FSSCS-but palm springs wants golf course instead of what land was designated for in the grant- PS could condemn, but had to compensate power of termination holder for 100% of value of land in FSA. 5. Concurrent Estates: a. Riddle v. Harmon: conveying JT to TiC to oneself~OK. b. Wengel v. Wengel: MI rule dual contingent remainders. c. Harms v. Sprague: granting a mortgage ~sever JT. d. Delfino v. Vealencis: Partition in kind favored over sale for TiCs to prevent hardship i. Ark Land Co v. Harper: economic value of property as whole less than if partitioned is relevant by not dispositive when sentimental ties to land from long-term ownership ii. Johnson v. Hendrickson: opposite result-by sale if partition cant be made w/o prejudice to owners. e. Spiller v. Mackereth: absence of agreement to pay rent an ousted cotenant in possession not liable to cotenants for value of use, and notice to vacate half building or pay rent =/= ouster.

f. Swartzbaugh v. Sampson: signing lease for possession of JT ~sever JT but lessor must account for rents. g. Sawanda v. Endo: Tenancy by the entirety cant be touched by creditors of either party, so state is indivisible (unlike JT) 6. Leasehold estates and L-T relationship a. Garner v. Gerrish: determinable life tenancy ~ = tenancy at will, so lessor cant terminate. b. Ernst v. Conditt: sublease vs assignment and consequences for privityassignment conveys whole term and sublease conveys less than tenants own interest; in assignment liable to landlord for rent. c. Kendall v. Ernest pestana, Inc.: lessor may not unreasonably and arbitrarily withhold permission for assignment of commercial lease, and wanting more $ is not reasonable. d. Reste Realty Corp. v. Cooper: 7. Land Contracts a. Lohmeyer v. Bower: violation of a zoning ordinance with hazard of future litigation constitutes unmarketable title 8. Servitudes: a. Easements: i. Willard v. First Church of Christ, Scientist: grantors intent to give easement to Church outweighs defects of CL rule which doesnt allow conveyance of easement to another in grant of freehold estate. ii. Othen v. Rosier: mere fact that claimants land is completely surrounded by the land of another does not of itself give the former a way of necessity over land of the latter where there is no privity of ownership (hadnt once been held by the same person and landlocked parcel conveyed first. Othens road use was a revocable license. iii. Brown v. Voss: You can only use private road easement to access the dominant easement (not adjoining property)- just negotiate a second easement! b. Equitable Servitudes: i. Tulk v. Moxhay: If you purchase with notice of what grantor intended to be a covenant, vertical privity isnt required for equitable servitude b/c you got price break for buying land from seller who thought their land was burdened. (its not fair! reasoning) c. Covenants: i. Sanborn v. McLean: reciprocal negative easements- you should have known that you cant build a gas station on your land though its not a covenant in the title b/c you should have noticed that it was a residential neighborhood (held to inquiry notice). Elements for recip neg easements: 1) common owner 2)touch and concern land 3)mutual restrictions benefit land 4) from sale of other lots by same owner w/ restrictions.

ii. Neponsit Property Owners Assoc, Inc. v. Emigrant Industrial Savings Bank: affirmative covenants to pay money dont run with the land, EXCEPT when owner gets the enjoyment of roads, public places, etc such as in HOA. Legal fiction of vertical privity b/c HOA represents all owners in privity. iii. Shelley v. Kramer: racial restrictive covenants cant be enforced b/c discriminatory state action. iv. Western Land Co. v. Truskolaski: covenant limiting to residential instead of commercial use is in force b/c fails to prove change in character of neighborhood/circumstances. v. Rick v. West: when a covenant affords real benefit to the benefitee, no consideration should be given to any award of pecuniary damages in lieu of enforcement of the restrictions. d. Eminent Domain: i. Kelo v. New London: regulatory taking of private land to convey to private developer for public use ok.

Property Outline 1.0 Wild Animals and the Rule of Capture: wild animals (but not domesticated ones) and their capture approximate the rules of other things such as oil and gas, that move about land on their own. 1.1 Rule of Capture: the hunter only gains possession and rights to a wild animal on land that does not belong to him when he captures the animal or wounds it, unless he abandons pursuit. 1.1.1 Pierson v. Post: Mere pursuit doesnt equal right of ownership of wild animals when one cannot claim title to the land it belongs upon, and the same has not yet maimed the animal or begun capture. 1.1.2 Keeble v. Hickeringill: set up decoys to catch birds on property owned by the Queen (not owned by or ) and sets up 6 guns to fire and scare away the birds w/ intent to injure s livelihood. The court finds that is at fault. Rule: While he can compete with in catching birds, he cant intentionally ruin s livelihood through vindictive means. Its important here that neither has claim to the land here, so they cant rightfully claim possession of the animals on that land w/o capturing them. 1.2 Rationale Soli: an owner of land is the constructive possessor of wild animals on that land until the animals leave. Cited in both Pierson and Keeble but not a deciding factor. 1.2.1 Ghen v. Rich: once a fisherman does all he can do to make the animal his own, he gains ownership of it regardless of who might later claim it. The court cites Bartlett and Swift as authority and follows them to the conclusion that libellant owns whale. This case also follows the industry custom established regarding property rights- in this village, custom was to notify the vessel owner when a whale washed onto shore, and that the whale would belong to that owner. 1.3 Oil and gas mining: Oil and gas rights are often determined by rules of capture similar to those of wild animals, because they can move between landowners, and it would indistinguishable where oil in a well came from (property owner A or B). You dont own the oil or gas until you capture it. Water under the ground and on the surface also followed similar rules historically, 1.4 Economics of Property, Resource usage, and Capture: Demsetz argues that internalization of costs leads to very different property usage than externalization of costs (you may use your property in a way least costly to yourself that increases others costs). Also, community sharing of resources changes the rate at which resources are exploited: when you keep what you capture, overexploitation is likely to occur.

1.5 Economic Waste- anything you do as a life tenant, landlord-tenant, or cotenant which reduces the value of the property. Landlord, future interest holder, or cotenants can sue in equity to enjoin the wasteful activity. 1.5.1 Types of waste: 1.5.1.1 ameliorative waste- A lessee's unauthorized change to the physical character of a lessor's property -- technically constituting waste, but in fact resulting in improvement of the property. Generally, equity will not enjoin such waste. 1.5.1.1.1 Ameliorative waste- LT must not engage in acts that will enhance the propertys value unless all the future interest owners are known and consent. 1.5.1.2 Voluntary or affirmative waste- actual overt conduct that causes a decrease in value (overt destructiveness) 1.5.1.3 Permissive waste (neglect)- when land is allowed to fall into disrepair or the life tenant fails to reasonably protect the land (maintenance of premises in reasonably good repair) 1.5.2 Exceptions to waste: 1.5.2.1 Ameliorative waste 1.5.2.2 Estover- taking wood for fuel (not allowed in England) 1.5.2.3 Emblements- crops planted on the land produced annually, not spontaneously 1.5.3 Penalties for waste 1.5.3.1 at common law: forfeiture of property to the next rung up the ladder and trevel damages. 1.5.3.2 Today: injunction usually. Why do we tolerate ameliorative waste and estover in America but not England? b/c here land is a commodity which explains why were willing to change/develop it. 2.0 Personal Property and Ownership/Rights to Use: 2.1 Moore v. Regents of Univ of CA: an individual has no property interest in excised cells which would allow a cause of action for the tort of conversion. Concurrene: We morally dont want to incentive/encourage sale of these items, so putting a price on them and a property interest could establish a dangerous precedent. 2.1.1 Conversion: wrongful exercise of ownership rights over the personal property of another. 2.2 Jacque v. Steenberg Homes, Inc: when nominal damages are awarded for an intentional trespass to land, punitive damages may, in discretion of the jury, be awarded. the court says that if you can only collect nominal damages here, there is no incentive to enforce property rights of the owner, and the legal system is an insufficient means of protecting the owners rights. $1=/= protection. 2.3 State v. Shack: ownership of real property does not include the right to bar access to governmental services available to migrant workers and hence there

was no trespass within the meaning of the penal statute. There are limits to what you can legally do on your property, though in general you can exclude others from use of your property. 3.0 Adverse Possession: hostile taking of anothers land, which after a period of time gives the taker right to title. Possession is not necessarily equated with ownership: think leases. 3.1 Elements of Adverse Possession: COHEN (Continuous, Open, Hostile, Exclusive, Notorious) possession of land. 3.1.1 Wengel v. Wengel: : Joint tenants w/ rights of survivorship can claim sole possession of the life interest through adverse possession, but cannot claim adverse possession with regards to the contingent survivor interest. 3.1.2 What can you adversely possess? You get only what the owner had when you enter the property and take possession (at the time the cause accrued), so that if A then sells subsurface to B, AP could still take adverse possession of the subsurface at year 13 because A still owned the subsurface at the time that adverse possession accrued. This rule also applies to life estate/remainder situations. You can AP the present possessor of a life estate, but you wont own property in FSA until they die and you adversely possess the owner of the remainder. 3.1.2.1 In constructive adverse possession, if the owner isnt present on the property at all, then he can be evicted even of a parcel larger than the parcel the adverse possessor is occupying. 3.1.2.1.1 If the owner is on the estate, AP can only gain what he is actually using. (ex: A possesses blackacre estate-100 acres- he can gain whole thing if hes the only one using any of it. If B the true owner was living on the other side of blackacre though, A can only gain title to what he was actually using and cant kick B off of what B was actually possessing). 3.1.2.2 Why do we tolerate AP? English: to punish owner for not taking care of his property; American: to reward someone putting property to better use than the owner. 3.1.3 Color of title: belief you own title which is in fact invalid. In some jurisdictions, adverse possession can only apply when you believed in good faith that you had title to the land you possess. In others, color of title does not meet the element of hostile or notorious possession to allow for adverse possession. 3.1.3.1 Manillo v. Gorsky: Intent of the adverse possessor is irrelevant, and any time entry and possession of the required time is exclusive, continuous, uninterrupted, visible, and notorious, even though under mistaken claim of

3.1.4 3.1.5

3.1.6

title, is sufficient to support a claim of title by adverse possession. This is the minority view. 3.1.3.2 Majority rule: you know, or should you have known that adverse possession was occurring. total area of the property youre trying to constructively adversely possess must be proportional to the amount youre using. Mistaken boundary: most adverse possession cases occur from mistaken boundaries, where one property owner mistakenly build or uses a portion of anothers land. In most courts, this may qualify as a valid adverse possession. Statute of Limitations: generally, each jurisdiction has its own limitations, after which the adverse possessor gains ownership of the property and may file to quiet title. 3.1.6.1 Tacking: when consecutive adverse possessors are in privity with each other, the time when the adverse possession first occurred may serve to begin running the statute of limitations. (ex: if one mistaken boundary owner sells their property to a new owner, the statute of limitations does not start over). 3.1.6.2 Tolling: when the land owner is under some disability which would make him unable to recognize the adverse possession at the time the adverse possession first begins, the statute of limitations does not begin to run until the owners disability has ceased. 3.1.6.2.1 Disabilities: Subsequently arising disabilities DONT Matter; only those that exist at the time the cause of action accrues qualify to stop SoL from running. Vary by jurisdiction, but under age of 18 (infant), insane, incarcerated, or in the military are commonly disabilities. Historically, married women were considered disabled. 3.1.6.2.1.1 Ohio: 21 years- or disability >11 years + 10 years after disability ends. Ohios newest statute takes incarceration off the list of disabilities (but not retroactive) effective 6 mos after statute passed July 13, 1991. 3.1.6.2.1.2 FL: No separate disabilities statute for AP, so you use the general disabilities statute- 7 years SoL for all types causes of action (not just property) 3.1.6.3 Tolling (stopping the clock) is for the benefit of owners. Tacking is for the benefit of adverse possessors- tacking only occurs when youre in privity (if you sell your color of title invalid deed to someone else, there is tacking).

3.2 Adverse Possession of personal property: generally allowed, but subject to different rules than AP of real property. Why? Its difficult to meet the open and notorious element in a way that puts the true owner on notice of your intent to AP the property. 3.2.1 OKeefe v. Snyder: statute of limitations doesnt begin to run until the owner knew or should have known of his cause of action and the identity of the possessor of chattel. So what if you have an owner that doesnt exercise due diligence? Does the statute begin to run upon notice, or only upon when she should have known by using due diligence. You must do what is reasonable for an owner to do when they notice their property is missing until learning of the adverse possessor in order to keep their cause of action and avoid the SoL. 3.2.1.1 Discovery rule doesnt necessarily benefit the owners of personal property- adverse possession rule would be more favorable if is fraudulently concealing property. Its not a better rule- just different. 3.2.2 Florida allows for AP of personal property by statute, but Wolf thinks the concept is flawed, and points out the concept initially was applied to slaves as personal property. 3.3 Coase Theorem: because a dispute between winner and loser involved few parties, transaction costs would be low and hence the value-maximizing use of the cave would be achieved in any event- result in the case should have no impact on the use of the property because loser would buy out winner. If transactions costs are 0, it doesnt make a difference who wins the case. So it doesnt matter whether the court calls As possession open and notorious. 3.3.1 Critiques of Coase: bilateral monopoly and the real world 3.3.1.1 bilateral monopoly- when only 2 parties are bargaining, each is so keen to out bargain the other party, they often reach a standstill and abandon negotiations altogether rather than get out-negotiated. (relate this to eminent domain and takings after Keloh- this is often one justification for private takings b/c developer cant get enough property owners and one holdout would destroy entire project). 3.3.1.2 Posner says: because transaction costs are anything but costless, efficiency is promoted by assigning the legal right to the party who would buy it were it assigned initially to the other party. Critique of this: could go too far in eminent domain- just because Id be willing to buy something doesnt mean I should get it for free to promote economic efficiency. 3.3.1.3 In the real world, transaction costs are not 0, so we cant predict outcomes based on Coase. Also, people dont behave rationally as Coase presumes them to behave-they dont weigh transaction costs when determining whether to

sue, and there may be non-economic reasons for the cause of action. 3.3.2 Applied to OKeefe v. Snyder: OKeefe is probably the party with the most money and has the upper hand. She could buy the painting from Snyder if she wanted to Transaction costs for this case were likely extremely high, so Coase wont apply. 4.0 Historical Property Rights and Evolution of the Fee system 4.1 History of Feudalism: King owns all the land and gives out portions to tenants in chief to use. They take their own portion and allow others to live on the land under land tenures- next rung on the ladder gets to work the land and live there in exchange for services and incidents. 4.1.1 Types of land tenure: socage (agriculture), military, and frankalmoign (religious), seargantry (service industry to the nobles). 4.1.1.1 Socage eventually becomes the dominant form, mainly because it lacks the aids of wardship and marriage. 4.1.1.2 Each type of land tenure provided a different service necessary to the king to keep his power and to keep the governing system functioning. 4.1.2 Incidents: the land lord had right to payments from his tenants in certain situations (which sweetened the deal for him) but also had to pay incidents to the next up the line. The best analogy for incidents is taxes. They kept up with market rate or inflation, and eventually became the dominant payment portion of the feudal system. 4.1.2.1 Types of Incidents before 1215: 4.1.2.1.1 Wardship- tenant guardian of land when tenant dies w/ minor under 21- lord gets the benefits of the land until child turns 21- can sell heir[male or female] in marriage and they refuse arrangement must pay a fine- applies only to military tenures 4.1.2.1.2 Relief- heir pays lord when tenant dies to take over the land-death tax of primogeniture 4.1.2.1.3 Homage and fealty-vowing loyalty to person above him on feudal ladder- loyal to you and also recites loyalty to the crown 4.1.2.1.4 Aids-entitle lord to demand help from tenants in case of financial exigency 4.1.3 1215: Magna Carta limits incidents to 3: knight of kings son, marriage of his daughter, or ransom for his life; king also adds Forfeiture (revocability of land if tenant refuses to perform services; if high treason, king entitled to seize the land from anyone-goes straight to the crown; benefit to the person above you, and the lord can renegotiate for land); Wardship- tenant guardian of land when tenant dies w/ minor under 21- lord gets the benefits

of the land until child turns 21- can sell heir[male or female] in marriage and they refuse arrangement must pay a fine- applies only to military tenures; Relief- heir pays lord when tenant dies to take over the land-death tax of primogeniture (only the first-born son receives the land. If no sons, then brothers or their sons. If none, then eldest daughter). 4.1.4 1285: Statute De Donis- Abolishes the fee simple conditional instead replacing with fee tail. 4.1.5 1290: Quia Emptores: revamp the land tenure system by abolishing subinfeudination (or adding more rungs to the ladder) and instead making tenant substitution focused on capital outlay (buying) rather than routinely performed services. 4.1.5.1 After Quia Emptores we know what the estates are: 1)fees simple- fee: simple; absolute; and defeasible fees (FSC, FSSCS, FSUEL, FSCBEK?); 2) fee tail; 3) life estate (PAV; determinable) Point: there are only 3 types of fees. King not subject to Quia Emptores, so he occasionally creates wacky estates. 4.1.5.2 Subinfeudate- create a fee for someone below a person and create another rung on the ladder below him. 4.1.5.3 Substitution makes sure landlords receive incidents of increasing (market) value and increasing chance of escheat and forfeiture. Why did the lower levels go along with it? They wanted to be able to transfer their estate during their lifetimes for a market price without permission. This deal struck in Quia Emptores. 4.1.5.4 Escheat- if you have no heirs, land reverts to the next on the rung. Modern version: If you have no heirs, your property reverts to the state. 4.1.6 1536: Statute of Uses- creates executory interests which cant be destroyed. 4.1.7 1660: Law of 1660 reforms land tenures and keeps only 3 of the characteristics of the tenure system: escheat, relief, and notion that land is held rather than owned. 4.1.8 RAP develops from English judicial decisions 1682-1883 (assume it applies at CL). 4.1.9 1700: English Common Law established and adopted in the colonies. Law at 1700 is what became American common law. 4.2 Fee estates: (as created by Quia Emptores): Fee simple, fee tail, life estate 4.2.1 Present Possessory Estates: FSA, FT, LE, FSD, FSSCS, FSWEL, FSSEL 4.2.2 Fee Simple: Historically, tenants had interest in property for life, and after death the landlord could dispose of the land as he saw fit However, by 13th century inheritance of fee bcame rightthough you had to pay a fee to the lord to inherit.

4.2.3

convey title to A and his heirs- A is term of purchase, and his heirs term of limitation (what duration will the grant last?). 4.2.3.1 Fee Simple Absolute: present possessory interest as well as ownership forever (devisable, descendable, alienable). 4.2.3.2 Fee Simple- you own title to land forever, but may not have present possessory interest (ex: if you grant a life estate to someone else out of your FSA, you keep fee simple). Land will revert back to you after life estate ends. 4.2.3.3 Fee Simple Determinable: to A and his heirs so long as the property is used for X purposes. If the property is ever not used for X purposes, it automatically reverts to the grantor and his heirs. If condition is violated and meets COHEN, the clock for adverse possession begins to run at the point where the possessory interest reverted to O. FSD + possibility of reverter=FSA. 4.2.3.3.1 FS w/ an executory limitation: same as FSD, except rather than reverting to O upon violation of condition, the property automatically goes directly to a transferee other than the grantor (shifting executory interest holder). Note: these often violate the Rule Against Perpetuities and are void if no time limit for the condition to apply. FSw/EL+Shifting Executory Interest= FSA. 4.2.3.4 Fee Simple Subject to Condition Subsequent: to A and his heirs, but if property is used as a restaurant, then O may enter and retake the property. FSSCS + right of reentry=FSA 4.2.3.4.1 Fee Simple subject to an Executory Limitation: same as FSSCS, except the right of entry/power of termination rests in the transferee/shifting executory interest holder rather than in O the grantor. Like the FSSCS, EI holder must enter and retake the property to gain the present possessory interest. 4.2.3.5 Fee Tail: O grants an estate to A and the heirs of his body. A has a life estate; upon his death, property reverts to O and then life estate is immediately conveyed to any descendants (issue) of A. Someone of As bloodline will always own a life estate, and O will hold reversion. 4.2.3.5.1 Fee tails were created through Quia Emptores, and were a method of the barons and elite to maintain their property through generations without being sold or split. 4.2.3.5.2 At common law, if you try to grant more than you have, you forfeit your land (ex: if you have

4.2.4

a life estate and then try to give away FSA). Under modern law, you can only give what you have- so you can give what you have or less than what you have (not more). Exception: in states with fee tails, you can often break the tail by transferring a fee simple absolute to the next buyer. Future Interests: ML: all future interests are alienable, devisable and descendible 4.2.4.1 Interests in the Grantor: reversion, possibility of reverter, right of reentry- all three future interests are retained by the grantor when the present possessory estate is conveyed. 4.2.4.1.1 Reversion: Remainder of a fee tail, Life estate, or estate for years which guarantees that property will revert to O and Os heirs when the previous estate ends. FSA-Fee tail=reversion; LE+Reversion=FSA 4.2.4.1.1.1 Reversion subject to complete defeasance: Os reversion may be divested if a condition subsequent is met so that an executory interest holder takes control of the property. (ex: to A for life, but to B and his heirs if B bears a son before 2025. O retains a reversion which may be divested if B has a son before 2025. After 2025, if B has not fulfilled the condition, O would once again have an indefeasibly vested reversion). 4.2.4.1.2 Possibility of Reverter: interest in the grantor following a FSD so that property automatically reverts to O if the property is used in a way that violates a condition of the conveyance. Descendable, but not alienable or devisable 4.2.4.1.3 Right of reentry: interest in the grantor giving him the power to reenter and take the property at will if the property is used in a way that violates a condition of the conveyance. Words creating right of entry may be express or implied. 4.2.4.2 Interests in Transferees (persons other than the Grantor): Remainders and Executory Interests 4.2.4.2.1 Remainders: Polite, and no mandatory gap. When O conveys a present possessory interest to A then the remaining interest to B to take possession at the conclusion of As interest.

4.2.4.2.2

Vested Remainders are subject no to conditions precedent to gain present possessory interest except that the transferees identity has been ascertained and the previous estate has ended. Vested remainders are alienable, devisable, and descendable (or have the same properties as the estate which they represent-ex: VR in LE is only alienable). 4.2.4.2.2.1 Indefeasibly vested remainders:no way remainder holder will not gain possession at the end of the preceding estate. (ex: to A for life then to B and his heirs.) 4.2.4.2.2.2 Vested remainder subject to complete defeasance: remainder holder has been ascertained and may take possession unless a stated event occurs which will make his interest void. (ex: to A for life then to B, but if C has a child by the end of As estate, to C and his heirs.) 4.2.4.2.2.3 Vested remainder subject to open: remainder holder is a member of a class, all of whose members have not yet been ascertained. Though A will receive a portion of the estate, the portion he will receive may decrease if new members of the class are ascertained. (ex: To A for life, then to Bs children. B has a child, C, at the time of conveyance, and B is still alive). 4.2.4.2.2.3.1 Rule of convenience: a class closes at either As death or Bs death, whichever is first. Members of the class are necessarily ascertained by Bs death b/c B cannot therefore have more children. Class closes on As death so we will know more quickly who the valid estate holders are and not wait many years into the future. 4.2.4.2.2.4 Contingent Remainder: remainder where 1) the recipient of the remainder has not yet been ascertained (ex: to Bs heirs) or upon which some condition

precedent which must occur in order for B to claim the estate. 4.2.4.2.2.4.1 Destructibility Doctrine: at CL, must take possession at the termination of the valid preceding estate or his interest is destroyed. Also, if B holds a CR to take at end of the previous estate, his interest may be destroyed by merger if the present estate and the future remainder are owned and conveyed to the same person. (ex: to A for life, then to Bs first child for life, then remainder to C. If C QCD to A and A sells his interest to D, Bs childs CR is destroyed.) The point of the destructibility doctrine is the promote alienability of the land. Note: destructibility of CRs has been abolished by modern law. 4.2.4.2.3 Executory Interests: future interests in other than the grantor that can cut the present interest short. Created by the Statute of Uses. EIs are indestructible at CL (except for the tricks) 4.2.4.2.3.1 Springing executory interests: those where EI holder may take possession from O the grantor. 4.2.4.2.3.2 Shifting executory interests: those where EI holder takes possession directly from the previous estate holder. Often subject to Rule against Perpetuities. 4.2.4.3 Tricks and Rules of Future Interests: 4.2.4.3.1 Rule in Shelleys Case: If O tries to convey present possessory interest to A and future interest to As heirs, the future interest shall be to A and As heirs (conveying the future interest to A). Often the doctrine of merger will merge these interests so that A has FSA (unless VR remains between the present possessory interest and future interest in A and As heirs). The

point of this is to promote alienability. Shelleys case has been abolished in most modern courts. 4.2.4.3.2 Rule in Wilds case: FI in to As children translates to A and As children. If A has no children at time to take possession, then A has FT. If A has children, they each receive equal shares of FSA. At ML, treat how the ML in jurisdiction treats a fee tail or as cotenancy. 4.2.4.3.3 Doctrine of Worthier Title: to A for life, then to Os heirs. Os attempt to convey CR to Os heirs is void. Therefore, O has an indefeasibly vested reversion. This is a rule of construction and still exists in many jurisdictions. 4.2.4.3.4 Rule Against Perpetuities: All future interests that may last longer than lives in being plus 21 years are void. 4.2.4.3.4.1 Unborn widow: O to A for life, then to As children. 5.0 Leasehold estates: Estate for Years: we pretended for purposes of test 1 is was a freehold, but it is actually a chattel real- an interest in personal property 5.1 Term of Years: lasts for a fixed period of time w/ fixed calendar dates or computable formula resulting in fixing calendar dates. Can be for any amount of time, not just for years. ANY PERIOD OF TIME-1 month, 2 days, 2 years, etc. Most common form of leasehold. 5.1.1 No notice required for termination. On the last day of the lease, the tenant simply leaves the premises because the possession is complete. 5.2 Periodic Tenancy: lease for a period of fixed duration continues for succeeding periods until landlord or tenant gives notice of termination. Hint: dont refer to it as periodic tenancy- think of it as a period-to-period tenancy (just a trick to understand it, but dont use this on the final exam). If proper notice isnt given, it is automatically extended for another period. Ex: month to month tenancy continues until proper notice is given for termination. 5.2.1 CL Notice: Notice must be given one full period in advance of intent to terminate. You are only liable for the length of the next period in a periodic tenancy. Wolf believes you have to terminate on the final day of the period (not in the middle of the period). Common law says you have to give an end date w/ a written date at the end of the future period. Ineffective notice at Common Law is treated as no notice at all. Modern law says you only must give notice equal to the period of lease, if under six months. If yr or longer, 6 months notice. 6 month term, 6 months notice (equal to the term length). Wolfs theory: between 6 and 12 months, its still the length of the period required as notice (11 month period = 11 months notice). If tenant leaves, L has duty to mitigate damages by looking for another tenant.

5.3 Tenancy at Will: can be terminated at the will of either party (tenancy at wills). If only one party has power to terminate the tenancy it doesnt fit inside the box, so not sure we should allow it at all. You could say you dont have a tenancy at all, otherwise you could revise to say at will of landlord AND tenant. If one dies, the lease is over. 5.3.1 Garner v. Gerrish: does term to T to terminate when he wishes create tenancy at will or determinable Life tenancy? Court says there is no longer any reason why a lease granting the tenant alone the right to terminate at will, should be converted into a tenancy at will by either party. 5.4 Tenancy at sufferance: holdover tenancy. When a term of years expire but the tenants remains in possession of the premises, a holdover tenancy is created. You now are there after your initial tenancy for years ends. CL rules give landlord two options: 1)eviction or 2)consent to creation of new tenancy. Holdover tenant is not considered hostile or trespasser for purposes of adversely possessing the landlord. 5.4.1 Crechale & Polles v. Smith: tenancy from year to year is created by tenants holding over after expiration of a term for years. But not in this case, b/c landlord had option at expiration of lease could hold tenant as trespassor or tenant. He elected not to accept as tenants but then accepted a check, and cant elect to then call them trespassers. It notified the tenants that it had elected to treat them as holdover tenants to extend for another term. This usually extends the lease the time the check was accepted. Absent evidence to show contrary intent on part of landlord, he who accepts rent from his holding over tenant will be held to have consented to a renewal or extension of the leasing. He has in effect agreed to extension of lease on month-to-month basis. 5.4.2 MR: Majority of states holdover tenancy gives rise to periodic tenancy at periods of how often the rental payment is due. 5.5 Assignments and Subleases: two techniques whereby the tenant may assign his personal property interest in a leasehold to another. Generally, the tenant who assigns or subleases remains liable for failure to perform by the assignee or sublease 5.5.1 In the absence of language to the contrary, T has right to transfer his/her lease w/o consent of the landlord. 5.5.1.1 Not unusual to see clauses in leases where L allows T to transfer but only where L grants consent. Court read into lease a reasonableness requirement if there is a clause so L couldnt unreasonably withhold consent. 5.5.2 Contract triangle: L-T1: privity of estate; L-T: privity of contract; T-T1: privity of contract 5.5.2.1 Most common time this is most significant is when T1 stops paying rent. L has a choice of who to sue to recover his damages. On a property theory, landlord can go after

assignee. On a contract theory, landlord can go after T. Can go after both of them, but can only get one set of damages. 5.5.2.2 T1 must pay rent as negotiated by L-T and fulfill Ts land obligations to L. 5.5.3 Assignment: If transferor transfer entirety of lease term. 5.5.3.1 If there is an assignment (if T gives T1 everything she has left), then L and T1 are in privity of contract, and T1 has a property interest- term for years. T1 has stepped into the shoes of the original tenant. 5.5.3.2 In commercial leases, modern courts find that L may not arbitrarily withhold permission for assignment or sublease without 5.5.4 Sublease: if transferor transfers ANYTHING other than entirety of lease term. 5.6 Revolutions in L-T law: DC in the 1960s has a court system where federal courts hear L-T cases and most Ts in DC are poor blacks living in slums. The DC Court of Appeals hears a lot of L-T cases and revolutionizes law to favor tenants who the court feels are being taken advantage of by rich white slumlords. Laws had previously been heavily in favor of Ls so that they could evict in summary proceedings, didnt have to repair damaged buildings, and it didnt excuse T from paying rent. 5.6.1 At CL, Ls could evict Ts with no notice and could physically force removal of tenant or kill them to get them off the property if L gave notice to leave. While courts were a venue to deal with this, it was rare b/c no written leases and Ts were generally not in a position to sue or get damages. 5.6.2 Constructive eviction: conditions of property which deprive tenant from use and quiet enjoyment of the property are considered constructive eviction. Reste realty establishes leaking roof and sounds of prostitute next door as constructive eviction. sewage pipes, bugs, fire, rats. But if the fire inst the Ls fault, the tenant still has to pay rent according to CL principles (youre renting the land, not just the house). : 5.6.3 Illegal lease doctrine: if conditions of the property were equivalent to constructive eviction conditions when the lease was created, the Court has authority to not enforce the lease (reasoning the lease is unconscionable). Does not apply if code violations develop after creation of the lease (Brown v. Southall Realty) 5.6.4 Dependent Covenants and shift to contract law principles: Court in Hilden v. St. Peter creates shift in modern law so that rather than making Ls making property safe/useable and Ts payment of rent obligations independent, the two are now dependent convenants. If L breaches, T doesnt have to perform. 5.6.4.1 Unconscionability: Court imports doctrine that unconscionable clauses of leases 1)void the whole lease or 2) void the unconscionable clauses of the lease. After the

DC courts begin to change L-T law against the Ls, the Ls begin writing favorable clauses into their leases to protect themselves. However, the court refuses to enforce these clauses as unconscionable. 5.6.4.2 Implied warranty of habitability: contracts concept that the product you provide must be of adequate standard whether or note the contract specifies a specific minimum standard. 5.6.4.3 Repair and deduct for repairs: if T gives notice, L doesnt fix and then sends the bill w/ the lease payment 5.6.4.3.1 In some cases, repair and deduct was effective w/ the CL, but then later through statutory changes. 5.6.4.4 Retaliatory eviction is barred: started as CL and now is statutory) If L tries to evict you, he has to have a better reason than you ratted him out or complained. 6.0 Concurrent estates: when two or more persons share a present possessory interest. 6.1 Tenants in Common: ML: presumption towards TiC rather than JT unless clear language (or in some cases, intent) of grantor to create JT. TiC arises when multiple parties share divided shares of the undivided whole land. TiCs are alienable, devisable, and descendible. TiCs may be created with unequal shares given to parties (99% share to A, 1% share to B is allowed w/ TiC). 6.1.1 Each owner of a share has a right to possess the whole property. 6.1.2 Sale of land held in TiC: owners share profits in degree of their interest. 6.2 Joint Tenants: ML: Must be created with four unities of possession or will be a TiC. CL: presumptions towards JT when four unities are met. 6.2.1 Four Unities: 6.2.1.1 Same interest 6.2.1.2 Same possession 6.2.1.3 Same time 6.2.1.4 Same instrument 6.2.2 Severance of JT: by selling your interest the JT, the ownership structure changes to TiC. 6.2.2.1 If you do not alienate your interest in JT before your death, your interest is extinguished upon your death and divided among the surviving joint tenants. 6.2.2.2 Riddle v. Harmon Strawperson rule- need straw person if youre in a JT and A wants to sever the JT and create a TiC made up of B and the JT of A and C. A must transfer As interest to another party and then other party must transfer it back. Minority of jurisidcitons allow A to transfer to A and C in JT, but not what were going by for our rule. If A attempts to write a deed to herself severing JT and create TiC, majority rule is its ineffective b/c it doesnt give B

notice if B predeceases A the deed severing JT conveniently disappears. 6.2.2.3 A lien or mortgage is not sufficient to sever a JT. 6.2.2.4 You must use a strawman in general to sever a JT- you cant convey your JT to yourself in TiC (violates to two to transfer rule). Why? We want to be sure you dont secretly create a deed severing JT and only assert it if you die first (other JT must have constructive notice that youre severing the JT by filing deed). 6.2.2.5 Slayer rule: murder of a JT severs the JT. It is presumed then that you die first and the other JT inherits your portion of the JT (making it descendable or devisable if there are only two JTs and you kill the other JT). Not sure what happens if multiple JTs and you kill one.\ 6.2.2.6 If JTs die at exactly same time, pretend that each died before the other, so their heirs get their portions of inetersts. 6.2.2.7 A lease is not enough to sever the JT. 6.2.3 more difficult to make JT b/c right of survivorship and limits you ability to pass it on to your heirs (restraints on transferability). 6.2.4 Constructive ouster:It is extremely difficult to establish adverse possession against joint tenants or tenants in common. You may oust them (physically force them off the property or use constructive ouster. certain acts even in the absence of the actual message from B to A that would indicate for one to believe that ouster has occurred. For purposes of final, it had better be very clear that its constructive ouster b/c its extremely difficult to prove. Much higher standard of notice if A and B are co-owners. 6.2.5 Action in waste: if a TiC or JT is doing something to change the value or face of the property, you may file an action to make them stop. 6.2.6 Lease of JT: a JT may lease the property without the other JTs permission. However, he must account for rents to the other JTs. If the JT dies, the lease is over and other JTs may oust tenant from property (they dont inherit the JTs lease w/ T). 6.3 Tenancy by the entirety- Endo: Land held by husband and wife in tenancy by the entirety is not reachable by creditors of one party. Tenancy by the entirety cannot be broken w/o the consent of both parties (different from JT, where if you convey your interest it creates a TiC). Both parties must consent to sales. 6.3.1 Fl by statute authorized TbyE from one spouse to self or self and other spouse. Creditors can only reach property which can be alienated by either party, so cant touch TbyE. If apply rules in most modern jurisdictions, TbyE as existed in CL doesnt apply in most jurisdictions. In FL and HA are the only states it still exists. 6.4 Partition: requests that a Court divide the interests held concurrently. The court may at the petitioners request partition in kind or partition in sale.

Presumption towards partition in kind unless it would significantly hurt the interests of a concurrent interest holder. 6.4.1 Partition in kind: court evaluates the land parcel and divides the parcel into shares reflecting the lands value and improvements. Preferred when possible. Also preferred when the land may have sentimental value to its occupants that they would not be adequately compensated for if the land were sold and proceeds divided. 6.4.2 Partition by sale: court sells the disputed land. 7.0 Servitudes 7.1 Easements- interest (not an estate) in real land allowing some activity on the property owned by another, or restricting what you can do on your own property. You only have authorization to do the activity the easement authorizes. Easements generally have to be in writing and comply with statute of frauds (except prescriptive easements and implied easements) b/c theyre interest in property. 7.1.1 Characteristics of easements: 7.1.1.1 Classified by duration 7.1.1.2 Affirmative: you do something on the property of another. when trying to ask if its an affirmative or negative easement, ask if its affirmative first. 7.1.1.3 Negative: you cant do something on your own property and restrict alienability, so they were pretty rare to recognize at CL. OR 7.1.1.3.1 4 negative easements recognized at CL: blocking light, air, supporting walls, and flowing streams from artificial sources (natural sources were covered so that you could only reasonably use it). 7.1.1.3.2 ML: conservation, viewshed, American courts liberally interpret negative easements. 7.1.1.3.2.1 covenants often look to be negative easements, so watchout for the confusion 7.1.1.4 Appurtenant: often two adjoining or nearby properties, where the dominant tenement has rights to do some act on the servient tenement. (ex: road). Often adds value to the dominant tenements property and diminishes the value of servient tenement. OR 7.1.1.4.1 Traditionally, there was a presumption that if you didnt use words of limitation youd created an easement in gross. If you say I give Jim the right presume its easement in gross (rebuttable presumption) so we need to determine if though not using words, that its still appurtenant easement. Analyze whether Jims bank account is increased or his property value is increased.

7.1.2

7.1.3

7.1.1.5 In gross: you have rights unattached to the land you hold allowing you to do something on anothers land. (ex: cox cables utility lines on my property-cox cables office is far away. 7.1.1.5.1 Personal easements cannot be alienated to another. 7.1.1.5.2 Commercial easements can be alienated to others. 7.1.1.5.3 English CL: you cant sell an easement in gross. 7.1.1.5.4 Easement in gross lasts and is attached to the servient property Easement by agreement (grant)-easiest and most common way to make an easement. 7.1.2.1 Easements by prescription: need to meet all the elements of adverse possession, but instead of giving you the freehold title to the property, you gain a prescriptive easement. Need same statute of limitations as AP. 7.1.2.1.1 adverse user of the property (not adverse possession). You can only acquire affirmative easements by prescriptive easement (you have to use someone elses property to get the prescriptive easement). 7.1.2.1.2 English rule: can acquire a negative easement by prescription in Engand (doctrine of ancient lights: if I get light through windows of my building unimpeded by other buildings, and a specific period of time passess, then neighbor cant then impede your natural light through your windows. Thats a negative easement, so you will ask for injunction/damages)- courts will grant it in england but not America. 7.1.2.1.3 American rule: You cant acquire a negative easement by prescription or the doctrine of ancient lights. Note: you have to actually use the property itself to get prescriptive easement: not just look at it for a nice view, etc. Note: this can be changed by statute (CA) or by express easement of ocean view, etc. Implied easements: 1) Neither is in writing and there must have been 2) unity of ownership between what was the dominant and servient tenement. Must be an individual owner (the United States once having owned the land before a land lottery doesnt count). Landowner divides their land into multiple parcels and someone asserts an implied easement exists. 7.1.3.1 By necessity: if by necessity, it terminates when the necessity ends.

7.1.4

MUST have been created or reserved (retained) an easement. Most commonly happens for rightof-way for a land-locked property. What is landlocked property? Is there a way to get from your property to a public road? In some instances, the courts have even found navigable waterways abutting property are adequate to alleviate necessity for easement. You must prove that oneperson/party once owned dominant/servient tenement, and may have been voluntary or involuntary 7.1.3.1.2 If you own a dominant tenement you can subdivide the dominant tenement, so the owners would all have the right to use the easement. Caveat: the use must be reasonable given todays usage of servient land. Look at land to see if it could be anticipated that the land might be used for that because use has changed over time and this use adequately accommodates normal development of dominant estate. 7.1.3.2 Prior use- if Hill sells his property with the road already built so that the landlocked party could get out on the road or another smaller road. All easements on land that sold by same person to others at same time, Othen would have dominant tenement and Rosier would have servient tenement. 7.1.3.2.1 A cant have easement over one part of land when he owns the entire property, but now that he sells both parts, so the easement comes into existence. 7.1.3.2.2 Where a quasi-easement existed, the new owner may claim the dominant tenement over the servient tenement (he can claim against Hill or rosier who bought the land) an implied easement 7.1.3.3 Elements of implied easement: must have been apparent, permanent, important for enjoyment of conveyed quasidominant parcel. terminate an easement: 7.1.4.1 expiration release (dominant tenement releases easement to owner of servient tenement-needs consideration) 7.1.4.2 abandonment (Wolf doesnt like this-people dont abandon real property- how do you abandon an easement? Intent + acts-

7.1.3.1.1

7.1.4.3 merger (buy dominant and servient tenement destroys easement 7.1.4.4 Prescription- the servient tenement stops the dominant tenement from using easement and the statutory period runs (there must be non-use for the statutory period). 7.1.4.5 Condemnation- if govt wants to acquire Bs parcel, govt can do that and terminate the easement across Bs land if they pay just compensation (5th amendment). 7.2 License- agreement to allow another to do something on your property which can be revoked at any time. Not an interest in real property so it doesnt need to meet statute of frauds (in writing). Best way to determine is to look at the piece of paper that created it- if the paper says right of way, then its an easement. 7.2.1 only lasts as long as you own the property 7.2.2 Exceptions: Profit (irrevocable): You couple the right with an agreement to take something off someone elses property (profit)- All profits are affirmative. License would be irrevocable for the purpose of going back in to get what you brought to a sports game where youre ticket is revoked. 7.2.3 What if govt takes land and in process terminates license? Does govt have to pay just compensation? No, unless its irrevocable (profit). 7.3 Covenants: promise/contract to do something to your property or not do something to your property to benefit other neighboring landowners. real covenants- real servitude like easement, profits, and equitable servitudes. Over centuries, CL cocurts developed various requrieemtns for enforcement of real covenant against party not party to covenant or to enforce it if werent a party to the covenant, or both. 7.3.1 real covenant runs with the land. 7.3.2 Running means youre talking about someone who wasnt party to the agreement 7.3.3 At time contracts were entered into, both benefited and both burdend by contract (B benefited from As promise and A benefited from Bs promise). You cant tell which is burdened or benefited in real situation b/c promises go both ways. So you wait until theres a conflict- then you know which is benefited and which is burdened. Party that allegedly breaches is burden side, party that sued to enforce is on the benefit side. 7.3.4 3 things you must show for a running covenant: intent, touch and concern, and privity. You must meet all 3. 7.3.4.1 Intent- intent that benefit or burden will run with the land. Intent in England- if promise related to something in esse (in existence at time of agreement) then you didnt need words to show intent that it would run with the land. You dont need the heirs/assigns language if its something thats in existence.

Ex: A sells property to B and A (benefit side) beneficiary of Bs promise to maintain statue that is on the property. The statue is in existence, so it runs with the land. If its something thats not in existence, then its a personal covenant unless the promise says otherwise (wont run with the land). Today, its very difficult to find a covenant situation in which the court wont conclude intent is present (presumed it runs with the land unless you indicate its a personal covenant). 7.3.4.2 Touch and concern- does the promise touch and concern the land? Analysis: whether it adds value to the benefit side and decreases the value of the burden side. Rather than increasing the wealth of the owner of the property. You can have a personal promise on one side and not the other most American courts throw out the touch and concern requirement unless its clearly personal and enhances the wealth of the individual. Has to do with the property as property. 7.3.4.3 Privity- what kind of privity is required? It depends on whether its a benefits running, burdens running, or benefits and burdens running case. Burdens running case Horizontal & vertical VP=same estate (for yrs, privity required FSA, etc) Benefits running case Vertical privity required VP=any estate relationship (horizontal not required Benefits and burdens Horizontal and vertical running case Horizontal privity: the relationship between the original covenanting parties other than the fact they entered into a contract with each other. It depends on the jurisdiction. At time parties entered into agreement, what other relationship did parties on opposing sides of agreement have with each other? 7.3.4.3.1 In England, only Landlord-Tenant (tenurial relationship). Also includes Life tenant and reversioner situation. 7.3.4.3.2 Massachusetts in the 19th century? There had to be a simultaneous easement in the property. Its cumulative- it can be a tenurial relationship or a dominant-servient tenement of an appurtenant easement relationship, so any of these equal horizontal privity. Today its changed, but Nevada now follows the old Massachusetts rule.

7.3.4.1.1

7.3.5

Majority rule: tenurial + simultaneous interest (easement) + any grantor-grantee relationship 7.3.4.3.3.1 Mere neighbors have no horizontal privity 7.3.4.3.3.2 Strawperson wouldnt work 7.3.4.4 Vertical Privity: a land relationship between the previous landowner that made the covenant and the person seeking to enforce or that the covenant is being enforced uponCareful! the rules are different depending on whether youre on the burden or benefit side. 7.3.4.4.1 Burden side: someone who succeeded to the same estate. Ex: I have 20 acres in FSA and I sell you 5 acres (think of a subdivision- this is ok for vertical privity). 20 acres in FSA, I sell you 20 acres as LTenant. Estate means duration. So vertical privity in Ex 1, but not example two (two different types of estate by duration). You can sell a portion of your land in grantor-grantee relationship if FSA FSA FSA. So an assignment for estate for years will work (Estate for years estate for years). Consent, touch and concern. Assignment has obligation to follow covenants. Sublet doesnt have to follow b/c not the same estate tenant had, so no vertical privity and no requirement to abide by covenants. 7.3.4.4.2 Benefit side vertical privity (this is a broader definition of vertical privity): all of the burden side of same type of estate PLUS anyone with a lesser estate. Ex: FSA LT (vertical privity). Ex: possibly even adverse possessor- even an adverse possessor could possibly enforce the covenant (Wolf thinks this is ridiculously lax). 7.3.4.5 Once Tulk decided and you dindt have to have horizontal privity and it boiled down to notice (intent and touch and concern requirement basically written out), 7.3.4.6 So equity courts developed all kinds of theories some of which benefited the aprties seeking to enforce equitable servitudes, but others hurt the s. Hurts s: theory of change in circumstances/neighborhood (Truskolaski & Rick v. West): a change in circumstances case), enforced even though circumstances changed and argued that shouldnt be enforced. Wont grant injunction unless it will benefit the part seeking ot enforce. Shelley v. Kramer (racial restrictive covenants) Some restrictions are good- the reason why we have these is b/c all

7.3.4.3.3

parties to restriction are doing something beneficial to the property. Why is shelley a negative covenant? b/c it says you cant rent/sell to someone who wasnt right (you cant do something with your own property). 7.3.6 Hint: Wolf wont use phrase and his heirs, assigns, etc to refer to an easement; and his heirs is fair gain and refers to a covenenat 7.3.6.1 SECOND test easement and his heirs vs. heirs and assigns (covenant). 7.3.7 Conservation easements- sui generis form of servitude (not really easement or covenant)- easy to make, impossible to break. More in nature of covenant b/c its negative and negative (looks like neg easement in gross) or covenant but not between two neighbors. Not subject ot change in circumstances- perpetual- and though it might not be for business use, (ex: farmer can restrict his land from being developed) its aloowed to be perpetual. Horizontal privity not required. Worst of all aspects of servitudes. 7.4 Equitable servitudes: Tulk v. Moxhay-D didnt make any promises to A or C, so there msut be something that binds Moxhay to the promise. OR it should be harder to enforce promise against covenantors transferee than against the covenator. How to we make it harder? By increasing the requirements. Burdens running (intent, touch and oncern, vertical privity, horizontal privity). Economic reasoning: Moxhay pays less for it, then wants to avoid the covenant? Thats not fair. We want ot make it dififcutl in covenants to give stranger an interest in title, so we require an additional promise. 7.4.1 You must have actual, constructive, or record notice to enforce in equity 7.4.2 Cant get damages, only injunction. 7.4.3 Wolf dislikes ESs and says that it gives the developer the best of both worlds- they can sell with representations of one thing at the beginning of a project but change their tune half way through- the best option would be to file a plat map w/ restrictive plans instead of forcing buyers due diligence to divine whether they should follow covenants not listed in their own title. 8.0 Nelson Symposium Golf Course Conversions materials 8.1 Wolf- media hysteria after Kelo- why was media attention so much greater and harsh after Kelo than after the 2 decisions it was precedented on (1954 and 1980s)? Kelo created a media firestorm and let to immediate backlash by state legislatures creating statutes to prevent taking of private lands through eminent domain by local govts for purposes of private-to-private transfers. Most states that passed laws only allow for blight takings, w/ harsher scrutiny, etc Factors leading to the backlash: 8.1.1 News and historical context: first decision during the Brown v. Board of Education court overshadows it. 8.1.2 Reganism in the 1980s 8.1.3 Rise of right-wing media

8.2 Best solutions to Kelo for state and local govts: 8.2.1 Procedural rather than substantive safeguards 8.2.1.1 More judicial review, requiring more documented analysis by govts along each step of the process creates more transparency to voters/citizens 8.2.1.2 More desirable than substantive laws which are often passed hastily and may produce undesirable results 8.3 Conservation easements: perpetual conservation easements are donated by a property holder to a charitable trust to prevent development of property. Three holders in the trust: public (represented by state atty general), trust administrators, and the property holder. Notes that perpetual easements are extremely difficult to terminate or modify and require cy pres court hearing to prove change in circumstances which make easement impractical or impossible (regardless of how the easement was acquired-donated, bought, etc b/c the public is an interested stakeholder through one means or another). Also are subject to traditional rules of easements for termination as well as the rules for charitable donations (the interest cant revert to the property holder/donor). 8.3.1 Suggests that we should think more carefully and plan easements rather than the headlong rush into preserving acres at the potential expense of future generations b/c of difficulty in removing the easements. 8.3.2 Easements should fit within a developed conservation plan rather than hodge-podge decisions by individual landowners 8.3.3 Perpetual easements may not always be the best strategic choice for land use but its the only type that gets tax breaks. 8.3.3.1 Term conservation easements- prevent development for a specified period of time and then automatically terminate (ex: 50 yrs) to prevent overly-rapid development. 8.3.3.2 Term-terminable conservation easements- conserve for a specified period of time and at the end of the period, the trust holder can reevaluate to continue the easement or modify b/c of changed circumstances. 8.3.4 Final question of who would get profits if a conservation easement is modified or terminated: the local govt or the trust or the property holder? 8.4 Weaver- Golf Course Conversions: zoning and Planning Considerations: most golf courses are converted into single family homes and the decision to rezone by city zoning and commissioners is subject to criticism by both sides (developers and adjoining residents). Local govts in general support redevelopment b/c it increases tax revenues, but also has many other considerations (increased infrastructure, roads, schools caused by development). Numerous lawsuits regarding the issue by nearby property owners who claim they relied on representations of golf course and want the open space and view (and appreciated property prices- golf course properties are generally more valuable than other homes)

Zoning: in planning, there is often deference to the citys zoning choices when part of an overall development plan rationally related to a legitimate govt interests. 8.4.2 Spot zoning: local govts cant arbitrarily require golf courses to stay as open/agricultural spaces when they have allowed others to develop nearby properties. The burden to keep open/green spaces should fall on the shoulders of golf course owners to make up for the citys planning mistakes in fialing to create adequate parks and green space itself. 8.4.3 Reverse spot zoning (inverse condemnation): local govts cant altogether ban golf course conversions (this is a taking) but should consider each development plan/rezoning petition on the merits. A developer neednt try to file for all other types of rezoning before filing inverse condemnation when filing would be expensive and futile. 8.4.4 Courts give significant deference to local govt decisions where both sides present reasonable arguments which make the govts decision discretionary. (Court shouldnt supersede the zoning decisions of local communities). 8.4.5 Are zoning decisions legislative acts or quasi-judicial? This determines the degree of due process which interested parties should be afforded. Courts are split 8.4.6 Cities should plan for parks and green space in advance and shouldnt rely on golf courses for this. 8.5 Golf courses and wildlife- USGA has made steps to increase wildlife on golf courses, and numerous courses are preservation friendly. They create info guides for golf course developers and managers to increase balance with wildlife- including conservation certification. 8.6 Salkin- Ensuring Community Amenities through golf course development: looks at prior court decisions regarding zoning and redevelopment of golf courses. Genearlly, the court applies a rational basis test to determine if the citys refusal of rezoning for development isnt arbitrary and fits within a rational plan serving the govts legitimate public interests. Existence of an overall development and community use plan often makes the difference as evidence that citys choice isnt arbitrary, as do studies documenting reasons for avoiding development in lieu of green space. 8.6.1 Planned Unit Developments as a more flexible alternative to allow govts to mix uses and deviate from deisity reqirements while retaining underlying zoning desginations. 8.6.2 Cluster developments- allowed to go over density requirements in one area in exchange for leaving significant open space on the entire large tract. Dont generally involve mixed use. 8.6.3 Municipal incentive zoning- developers obtain incentives such as increased density limits or additional uses in exchange for providing certain amentities such as affordable housing, parks and public spaces, etc.

8.4.1

8.6.4 8.6.5 8.6.6

Transfer of Development Rights- landowner yields some development rights in exchange for right to develop another parcel more intensively. Alternatives: deed restrictions, conservation easements, land dedications, Development agreements- contract where developer provides certain amenities in exchange for a fixed zoning regulation. Usually govt evaluates which amenities most urgently needed for public. Tend to be more flexible than PUDs or incentives.

Wolf anal-retentive method for learning future interests: 1) Id as estate or servitude 2) If estate, id as present possessory or future interest 3) If present possessory, tell what kind it is (look for magic words). 4) If future, in grantor or other person? Is it going back to grantor? Then reversion, possibility of reverter or power of termination. If not, then 2 possibilities are remainder or executory interest if its a future interest in someone other than grantor. First see if its a remainder: If remainder, vested or contingent. If not, then executory interest. Then rule against perpetuities analysis. Then look at the tricks: (3 of them). Covenant: time of the grant???? Affirmative v. Negative. Equitable servitude??? Effects in 2008 q2. DUMPORS CASE