PropertyIIOutline Eckstein Ian Spring2011

8/10/2019 PropertyIIOutline Eckstein Ian Spring2011

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e briefly discussed the 64D2 and the )-$ hour rule for death versus the split second rule


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1ourt held this too be too ambiguous to create a four+way joint tenancy. 4hould have been:o Bas a four+way joint tenancy with right of survivorshipC ?' o Bas joint tenants, and not as tenants by the entirety and not as tenants in commonC

(@) entirety )* joint (@- entirety -* T@E5 4evered !erson%marriage and 8nterest(Divorce judge said the farm, Bshall remain the joint property of the parties hereto for a

period of two years,O and granted Othe e"clusive option of @) out of the farm for a fi"edconsideration. This disjointing in time with a purchase option destroyed 6nity of 8nterestPaccording to appellate courtQ* T@E5

@) common ) common (@- entirety -* T@E5 ) (@- entirety - P/%0Q* T@E5 ) common - P/%0Q, 5?T what the trial court said, which was: @) joint ) joint @- joint - T@E5 4evered 8nterest Either same as above or @) common ) common @- common - ) common @- common - 25D @- entirety - for @) s sold interest T@E5 ) P/%IQ common - P#%IQ

Sawada v. Endo , p. /N) ++++++++++++++++ 125 1'ED8T?'4 2TT21@ TEsR roup 8: husband can convey, not wife only in


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8n $l%us, they e"panded this to cover a husband s support of his wife s singing career. Thehusband gets the amount that his contributions an# e""orts le# to an increase in thevalue of the wife s career, i.e. , (@is 1ontribution* A (@er 1ontribution S 8nnate Talent* Jhat he gets

Eckstein: B4ome property rights have subjective value, but no objective value, e.g. ,

easements. Psee 1lass5otes)+-)QCommunity Property (I states* P4ee p. /II / for a great run+down on community propertyQEckstein: 4ome community property states also have an elective share statute in addition to thecommunity property or as an option to the community property rules.

hen your spouse dies you get a stepped up cost basis> Psee p. / $, n. /$Q

Mc!urd" , /H- 4. .-d /I) Te"as follows the B inception o" right C rule P4ee p. / - for alternative rulesQ 8f you start paying on a life policy and keep paying on it during the marriage, the death

benefit does not become community property, though the premiums paid with communityfunds are reimbursed to the community out of the proceeds. Three reasons:

o 8ts not less "air than the 1alifornia method where you do a pro tanto share because

you never know if the premium refund or the actual death benefit will be moreo 8t harmoni0es with the rule for owner+carried mortgages.o 8t is the simplest rule to implement, which makes it efficient

'eimbursement: The wife still gets a proportional premium refund Hanau , H/$ 4. .-d NN/ P!roblem, p. / 0Q

1ouple moves to TM from common law marital property state. @usband devises separate property to the kids and community property to the wife.

Turns out all the property was separate because he ac7uired it all in the other state.

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ife living in TM now cannot take her elective share and gets no benefit from the TMcommunity property law system. &y loophole, she gets deprived of all her marital interests.

The Commingling Rule : The presumption of community property prevails if evidenceshows that the separate property and community property Bare commingled so as to defysegregation and identification.C To keep it separate you Bmust trace and clearly identifyC it.

1ourt held no commingling when the decedent kept the brokerage account in his name andhis wife never had access to it.

Eckstein: The state you are domiciled in when you die governs. 2lso, she would get the earningson the stocks because the earnings all came in while living in TM.

)%-N%-$))'eal Estate &roker problems: ou might be liable for what they do on your behalf via the

doctrine of respondeat superior or agency law.6niform Land Transactions 2ct minimum writing re7uirements: + p. #0)

4igned by the party to be bound Describes the real estate 4tates the price or refers to price and indicates the method intended for affi"ing a price

(e.g. ;air


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&eneral rule : 2 prudent buyer would not accept title to a place with e"isting violations ofany restrictions or encumbrances even if the contract has a clause waiving the right toinspect for violations and keep the option to avoid based on the violations.

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#ohme"er , p. #0I (


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). 4eller knows of facts materially affecting the value or desirability of the propertywhich are known or accessible only to him 25D

-. Wnows that such facts are not known to or within the reach of the diligent attentionand observation of the buyer T@E5

The seller is under a duty to disclose them to the buyer

5ote #, p. #N/ A B enerally, an Bas isC clause in a ales contract will be upheld if the defects arereasonably discoverable and there is no fraud.C


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(n Praesenti). 1ovenant of seisin A grantor warrants she owns the estate she purports to convey-. 1ovenant of right to convey A grantor warrants she has right to convey the property/. 1ovenant against encumbrances A grantor warrants there are no encumbrances on property

2n encumbrance diminishes value, but is consistent with, albeit supplemental to,

the title. (n )uturo (These re7uire under &rown p. # ) an actual disturbance of possession, not alienabilityor even ownership Pthat would be the covenant of 4eisinQ 2lso see ilbert s p. 0#)*

0. 1ovenant of general warranties A grantor warrants she will defend against all B lawful (careful wording*C claims and will compensate grantee for any loss grantee sustains byassertion of superior title

#. 1ovenant of 7uiet enjoyment A grantor warrants that grantee will not be disturbed in possession and enjoyment of the property by assertion of superior title

N. 1ovenant of further assurances A grantor warrants that she will e"ecute any otherdocuments re7uired to perfect the title conveyed

4ome courts have forced people who fraudulently sell land to buy the land and then complete

the sale they originally purported to complete. Title insurance policies contain very careful language like, e.g. , BlawfulC claims P p. 0#/Q 2ccording to 12L8, remote grantees can only recover on the future warranties, not the

presents. #rown v. &ober , p. # )

&rown got a eneral arranty that purported to convey a piece of real estate. 8t did not properly convey the mineral rights because two+thirds of them had been sold.

Lober tried to sell the mineral rights and couldn t because he didn t own them. The court held that for purposes of the covenant of 7uite enjoyment, this disturbed only

alienability and maybe marketability, but not possession and that possession is the stick inthe bundle which has to be disturbed in order to invoke the 1XE.

o The court went on to say that &rown could 2! under color of title the mine.4ee p. # / for a discussion on physical v. legal encumbrances and when they violate covenants.

)rimberger v. *nzellotti , p. # 0 (The 1ovenant 2gainst Encumbrances* Encumbrance defined as Bevery right to or interest in the land which may subsist in third

persons, to the diminution of the value of the land, but consistent with the passing of thefee by the conveyance.C


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1ourt holds that the concept of encumbrances cannot be expanded to include latentconditions on property that are in violation of statutes or government regulations. +o do sowould create uncertainty in the law of conveyances, title searches and title insurance.

&asically, its better to deal with these sort of things by either due diligence in checking outthe public records (court points out that the buyer was an attorney and a wetlands

developer* ?' by inserting the appropriate contractual provisions ;or the same reasons as =oning restrictions, albeit not as strong, wetlands violations are

treated the same. They are ubi7uitous. They re7uire due diligence. They change fre7uently.&reach of covenant and unmarketable title A are the BencumbrancesC the same thingR p # I

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They could have had an upset price or used display adsK the statutory re7s (legal notice in paper, city hall, property, and post office* were not sufficient for the lender s due diligenceduty, as evidenced by the fact that no one showed up

Rule : ithout bad faith, you cannot use ;


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-%)I%-$))Title Assurance

Ec*stein' 8n this and the mortgage reading, Bthere s little black+letter law, mostly policyargumentsK your opinion is okay if you try to back it up with factsC

&asic 1ommon Law 'ule: ;irst in time (of conveyance*, first in right.&asic 1ommon Law e7uity e"ception: 4ubse7uent purchaser of legal interest, paid valuableconsideration, and no notice, got protection.4ee p. N0#+N#) for an introduction to the recording system and inde"es. 8ncluding the hilariousletter e"posing the chain of title all the way back to od s creation of the land.

&uthi v. $vans , p. N#) 'ule: B


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The court did not allow 8dem sonans for establishing property ownership throughrecording, but they said in dicta that it was okay for purposes of identifying parties in a suit

4ee p. NN#+NH$ for inde"ing rules, computeri=ed inde"ing, race statutes, notice statutes, and race+notice statutes.

essersmith v. Smith , p. NH$ This case turned on a notary public signing that a woman personally appeared before her,

when it was proven at trial that she only BappearedC over the phone, the court struck downthe notari=ation and the recording

This is a great e"ample of a case where the race+notice statute made the subse7uent purchaser lose because of the recording problems. 8n a notice jurisdiction, the subse7uent purchaser would have won just based on lack of notice alone. The original purchaser didn trecord at all, but if you don t have statutory protection as a sub, the common law defaultrule applies and it is first in time (of conveyance*, first in right.

4ee p. NHN, footnote )- for a discussion on latent versus patent problems with invalid recordation&efore you go to the judge, make sure you record everything you ve got to try to see if you canmake any of it stick.

-%-0%-$)) The meaning of chain of title differs in different jurisdictions, p. NHH

Recor#ing ystems #oard of $ducation of inneapolis v. ughes , p. NHH

Rule : &lank deeds are null until, with e"press or implied consent of the grantor, thegrantee s name is filled in. (jurisdictions differ on this*

Rule : Bwhen the grantor receives and retains the consideration, and delivers the deed in thecondition described to the purchaser, authority to insert his name as grantee is presumed.C

Rule : ood faith subse7uent purchasers without notice are protected.

3ol#ing : &ecause the recordation of the third+party deed w%o DU first recording theirown deed left a gap in the records that @ughes wouldn t have been able to follow, he didnot have notice when he filed and therefore filed successfully as a Bsubse7uent purchaser.C

This happened in a race+notice jurisdiction. 8f DU would have filed first, then &oard of Ed.would have been protected under the shelter rule, assuming DU didn t have notice. The courtdecided that the recordation, even in a race+notice jurisdiction was still ineffective when it left agap in the records.hat if a tract inde" was usedR Y Different result. Then, @ughes would have constructive notice

because searching the tract+inde" would have shown him the deed. ?n the other hand, despiteknowing about the deed, he would still not understand where it came from.The shelter rule : The subse7uent purchaser steps into the shoes of the notice given to the prior

purchaser.Eckstein: !ointed out that actual and constructive notice are both relevant to a notice jurisdiction

because its possible, however unlikey, that you could have constructive notice, i.e ., you Bshouldhave knownC for a reason other than the fact that the deed was properly recorded. (.e. 1onstructivenotice almost always, but not necessarily, comes from prior recordation.

5o 5otice 5o !rior 'ecording Last Deed Delivered 5otice M M'ace M

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'ace+5otice M M p. NIN!olicy argument: !unish the people who do not record their documents.

People Protecte# by the Recor#ing ystem;L, p. NN , protects, Bcreditors or subse7uent purchasers for a valuable consideration.C This only

includes people who pay consideration for the interest ac7uired (includes mortgagees and lessees, but not people who receive a gift or be7ueathment*. This rule applies in almost all jurisdictions, even race jurisdictions.


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8n Davis, the guy only paid \-$$ and the court, after the 4upreme 1ourt s declaration ofnonsuit, still had discretion to merely assign the future mortgage installments to the priormortgage holder rather than the prior owner, which solved everyone s problems. (Therewas a mortgage that was recorded on the wrong property, so it was valid, but didn t givenotice to the subse7uent purchasers*

8n Davis, a payment of value rule is stated that doesn t apply to the modern world where itwould arbitrarily protect a purchaser using a bank loan, but not one using owner paper.

4ee 1reditors, p. N - for more info4ee *lexander v. *ndrews , p. N - for more discussion on consideration paid after notice, even after constructive notice.n. -, p. N / A 8n many jurisdictions, a purchaser by 7uitclaim deed cannot claim the position of

bona fide purchaser without notice. The reasoning is that the 7uitclaim gives in7uiry notice orsomething along those lines. The large majority, however, treats 7uitclaim deeds like warrantydeeds for purposes of giving notice.

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In:uiry NoticeIn:uiry Notice +ith apartment comple es A if you are in possession, then it counts as notice tothe world, you can, however, overcome the in7uiry with diligent efforts A 4ee iller v. Green , p.H$) A 'evenge 1ase. 1ontrast with 1aldorff 7uoting Phelan , p. H$$.There are three kinds of notice: actual, record, and in7uiry

2ctual notice: ?ften, comes from another s possession of the property'ecord and in7uiry are forms of constructive notice.

'ecord A notice based on properly recorded instruments 8n7uiry A based on facts that would cause a reasonable person to make in7uiry into the

possible e"istence of an interest. arper v. Paradise , p. N / A The thing to take away from this case is that you might be presumedto have in7uiry notice for some stupid reason and so, 1 2>>>>, say that you in7uired or give areason that in7uiry would have been fruitless. This will protect the record on appeal.

Rule : 8f a recording references an unrecorded document, then you are put on in7uiry noticeand obligated to make a due diligence in7uiry and furthermore, to put that in7uiry in yourcourt documents so that the appellate court can read it on appeal.

'emember that unrecorded deeds are still valid conveyances if done properly. They can beaffected by race and notice statutes, but the statutes are kind of like derogation statutes.

enson v. #ridges rule: 8f there s no in7uiry or attempt to e"plain why in7uiry would befutile, then it will be presumed that in7uiry would have disclosed the e"istent facts.

A#verse Possession Rule : The statute of limitations for adverse possession doesn t begin

to run till the life estate holder dies and the remaindermen become entitled to possession.4ee


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Encumbrance on Title: These are limited to liens, easements, restrictive covenants andother such interests in or rights to the land held by third persons

Title is not the physical condition of the land @a=ardous waste is the physical condition of the land Title insurance does not cover ha=ardous waste clean up costs, even when latent They could probably sue the previous owner who put the waste there, it is latentK

&ack to &ohmeyer , in that case the outcome was that an e"isting =oning violation like a house builttoo close to the other lot or two stories when it must be one, does make title unmarketable

E"planation: 1ourts might allow contractual recission in these situations, but notdelineation of clean up costs.

2lternatively, the state had not yet placed a lien and may not place one. Too speculative.The 8owa Title 4ystem: 8owa has a system that sounds better than Torrens. 4ee. p. H-H.

/%-%-$))Five types o" servitu#es :

). 2 is given the right to enter upon & s land (affirmative easement*-. 2 is given the right to enter upon & s land and remove something attached to the land(profit*

/. 2 is given the right to enforce a restriction on the use of & s land (negative easement, realcovenant, or e7uitable servitude, depending on remedy sought, inter alia *

0. 2 is given the right to re7uire & to perform some act on & s land and (real covenant ore7uitable servitude, depending on remedy sought*

#. 2 is given the right to re7uire & to pay money for the upkeep of specified facilities (realcovenant or e7uitable servitude depending on remedy sought*

Easement .e"inition (&ilbert- : 2 grant of an interest in land that entitles a person to use land possessed by another.Real Covenant : This is a covenant that is not enforceable through contract law (generally due to alack of privity*, but may be enforceable through property law, hence BrealC covenant.E:uitable ervitu#e : 2 covenant, not enforceable at property law, but enforceable in e7uityagainst assignees of burdened land who have notice. 6sually damages are limited to injunctionsenforcing the burden.A""irmative Easement : This is a right to ()* enter the servient land and (-* assert some right.Negative Easement : This is a right to limit the servient estate owner s use in some way.

2lthough an easement lasts in perpetuity, it does not include a right to improve or modifythe servient property.

Appurtenant : 2ppurtenant easements benefit a dominant estate over a servient one. The lawfavors these in cases of ambiguity because easements ostensibly increase the value of the dominantestate more than they decrease the value of the servient estate, thereby ma"imi=ing the total landvalue. ;urthermore, the dominant estate owner should always own the easement because theeasement is of more use to him than to some third party.&ross : ou can create easements in gross in a person (Eckstein said not in a corp., though 8 can timagine why, maybe because corps don t die* and they are assignable if the parties so intend.

%rofit ' %rendre : 8f you own a right to take something off the land ( e.g . timber, minerals, fish*,then you own an implied easement to enter the land for purposes of removal.

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/icense J !ermission to enter or use the property of another (that in the absence of permissionwould be a trespass* and where permission is revocable and limited in duration.Reservations an# E ceptions , p. HH/'eservation: 2 provision in a deed creating some new servitude that did not e"ist before.

2ncient 1ommon Law J 'eservations were not allowed.


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ou have to wonder, whether laying down the Bred dogC and whatnot on the road for a buck was enough to prove the &ashley rule, which re7uires e"penditure in reliance, orwhether the house building itself, though not on the license, was enough.

Eckstein: Detrimental reliance> Detrimental reliance is the basis of estoppel. Eckstein alsotalked about the policy of holding owner s responsible for their knowing allowing of

people to rely on them.The olbroo% rule: B here the license has e"ercised the privilege given him and erectedimprovements or made substantial expenditures on the faith or strength of the license , it becomesirrevocable and continues for so long a time as the nature of the license calls for. 8n effect, underthis condition the license becomes in reality a grant through estoppel .C !ermission to use,

permission to fi"%maintain%etcKThe 'estatement 2pproach to Estoppel in contrast:

The first 'estatement adopts this approach, &6T the third takes the approach that estoppel basically morphs a license into an easement. 4ee p. HHI, n. /.

The Third takes the approach that the license is treated like an easement 65LE44 the parties intended or reasonably e"pected that it would remain irrevocable only so long asreasonably necessary to recover e"penditures.

5ote ), page HHI A The 'estatement provides that a servitude may be created by estoppel.1omment e, B5ormally the change in position that triggers application of the rule stated in thissubsection is an investment in improvements either ()* to the servient estate or (-* to other land ofthe investor (like the building of the house in olbroo% *.CNote cases :Shepard v. Purvine , p. HHH

Ban oral license promptly acted upon in the manner plaintiffs acted is just as valid, binding,and irrevocable as a deeded right of way.C

enry v. alton , p. HHH A (This case shows a jurisdiction that sticks to the old ways* B?ral agreements are easily misunderstood. 'e7uiring a writing gives security and

certainty to titles.C

/%0%))Tra#itional T+o Easements by Implication (majority rule in ) /I*:

). Implie# &rant : 8f the owner of the undivided tract puts one part of his land to use at thee"pense of another, he has a 7uasi+easement. @e cannot have an easement in land he ownsfully, but one part of the land technically owns an easement over another part of his ownland. Xuasi+easement can lead to implied grant of an easement vested upon severancewhen:

a. 2pparent b. 1ontinuous andc. 5ecessary in character. ee p% 5?6 .

i. The trial court in 0oyster called this Bnecessary to reasonable use andenjoymentC

-. Implie# Reservation : The grantor can get an implied reservation of an easement only if itis a strict necessity. This is a high hurdle. 8f you can purchase an easement or build anegress, even an inconvenient one at great e"pense, or if water abuts your property, youmight not have a strict necessity. 4ee p. H /

The Mo#ern Restatement Approach (majority rule today*: + 4ee p. HI0

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The degree of necessity re7uired to imply an easement in the grantor is greater than that ofthe grantee.

5ecessity is one of eight factors to consider in implying an easement. 4ee p. HI0.Appearance an# visibility are not synonymous . ;urthermore, where appliances connect withand leading to a drain, pipe, or sewer are obvious, you are on notice of the apparent nature of it.

4ee p. HI0.5an Sandt v. 0oyster , p. HH A (8mplied Easement*

] claims that he is a bona "i#e purchaser "or value +ithout notice . @e had at leastin:uiry notice though because he Bknew the house was e7uipped with modern plumbingand that the plumbing had to drain into a sewer.C 4ee p. HI0.

Rules : 4ee p. HI-.o ?wner cannot have easement in himself, but he can have 7uasi+easement which

turns to full easement upon severance.o ?ther courts re7uire the grantor to put this in the deed if it is the case

(responsibility*o ?ther courts, perhaps a majority, hold that in order to establish an implied

reservation in the grantor, you need strict necessity The court implies an easement from a prior existing use . 4ee p. HI#, n. ).

5. ), p. HI# A Easements are implied in two basic situations.). 2pparent and continuous (or permanent* use of a portion of the tract e"isting when the tract

is divided (7uasi+easement*. ( (an Sandt v. )o"ster *a. 'e7uires reasonable necessity

b. 8ssue: 8s it an implied reservation or an implied grantRc. Eckstein: enerally, the implied reservation is harder to prove than the implied

grant.-. 1laimed easement is necessary to the enjoyment of the claimant s land and that the

necessity arose when the claimed dominant parcel was severed from the claimed servient parcel. ( *then v. )osier *

a. 'e7uires strict necessity 4everal jurisdictions, including 5ew ork and Te"as, follow the old rule that strict

necessity is re7uired for implied easements in favor of the grantor.!then v. 0osier , p. HIN A (4trict necessity is hard to prove, 4ee p. H /*

'ule: 8mplied reservation re7uires:a. ()* that there was unity of ownership of the alleged dominant and servient estates

b. (-* that the roadway is a necessity, not a mere conveniencec. (/* that the necessity e"isted at the time of severance of the two estates.

!rescription J no because the gate and fence indicated permission

4trict necessity J maybe, but ?then didn t prove ita. Even if you have to buy a way out, as long as you can buy a way out, no matter how

e"pensive, you might have strict necessityilbert s: 8f there s a prior, pre+e"isting use then you have 7uasi+easement and you only needreasonable necessity, but you also need apparent and continuous. 8f there s no prior use, then youneed strict necessity. ee p% 5?@ ?6 .

5. ), p. H /: Schwab v. +immons and the e"tremely e"pensive rocky landlocked cliff.

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n. /, p. H 0 A 2n easement by necessity endures only so long as it is necessary. 8f the dominantowner secures another way out from the landlocked parcel, the easement by necessity ceases.(This means in Gan 4andt, their easement could be destroyed if public sewer installed on Tenth st.*n. 0, p. H 0 A 4ome statutes (mainly in the est* let any landlocked owner sue his neighbors forcondemnation of an easement. @e must, however, pay for the easement.

n. # A 6.4. cannot sue for easement because it has eminent domainLost grant theory: This has to do with telling the prescriptive user not to use the property. Tellingsomeone not to use your land breaks the continuous re7uirement. arnell v. #idwell Aac7uiescence A p. H #

Assignability o" EasementsThe benefits and burdens of appurtenant easements pass automatically to assignees of the

land to which they are appurtenant, if the parties so intend and the burdened party has notice of theeasement. ross easements, however, may not be assignable. 4ee p. I)-.

iller v. &utheran 'onference 'amp *ssoc ., p. I)- A (Divisibility of easements in gross * 1onveyance said, Bhis heirs and assignsC showing an intent to make them assignable. Y ?n

the other hand, this meant the fishing and boating was assignable, not the bathing ac7uired by prescription

which is now ine"plicably being affected by the conveyance .o ;urthermore, if an easement is created for commercial e ploitation , then it is probably intended to be assignable whereas if created for personal enjoyment, it is probably intended to be un+assignable.

.ivisability, ount-oy rule (p. I)I*: hen two people own an easement, the parties generally cannot

sublease and subdivide their interests. They must, rather, act as Bone stock.C They can sellor assign their interest, but they cannot divide it unilaterally.

o This way the, Bsurcharge of the easementC is prevented. 8n other words, theeasement is not worth as much if multiple people are using it without working outtheir enjoyment together as a group. 4ee Demset=, E"ternalities.

The ount-oy rule was a profit rule imported by the court. 4ee p. I) .The Restatement approach is that easements in gross may be divided unless contrary to theintent of the parties creating the easement or unless the division unreasonably increases the burdenon the servient estate.Ec*stein : There s a nuance:

3 1o+tenancy J sei=ed to the whole3 The iller jointly owned easement interest J sei=ed only to the ^ and the _ and can only

e"ercise rights together with each other. 5either has a right to the whole if the other vetoes. p. I) .

/% %-$)) #rown v. 5oss , p. I-/ A (4cope of Easements*

1an the scope of an easement be enlargedR 4hort answer, no. Rule : The e"tent of the right is determined by the intention of the parties from the terms of

the grant (if e"press* &eneral Rule : B2n easement appurtenant to one parcel of land may not be e"tended by the

owner of the dominant estate to other parcels owned by him, whether adjoining or distincttracts, to which the easement is not appurtenant.C

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BThe issue is not the amount of burden caused by the servitude, but rather the rights of the parties, i.e. , Goss had an enforceable legal right irrespective of the very little amount ofdamages that he suffered.C

!. I- , n. /: Easement use may change over time to B accommo#ate normal #evelopment o" the#ominant estate .C

Easement of way doesn t normally J right to put in utilities, p. I- . n. 0.1an the servient estate owner unilaterally change the easement s location at his own e"penseR

enerally, no. 'estatement (Third*, yes, if the change doesn t B()* significantly lessen the utility of the

easement, (-* increase the burdens on the owner of the easement in its use and enjoyment,or (/* frustrate the purpose for which the easement was created.C

!rescriptive easements read more narrow than grant, implication, or necessity Preseault v. 4nited States , p. I/) A (Termination of Easements*

&eneral Rule : hen the government obtains a right to use private property, it obtains onlythat which is necessary for its limited purpose.

Ta*ings : eneral rule, permanent physical occupation J taking. Aban#onment : re7uires either ()* present intent to relin7uish or (-* purpose inconsistent

with its future e"istence &eneral rule (p. I/N*: Easements use can be e"panded to serve the purposes of the grant

8; the change is reasonably foreseeable at the time of establishment of the easement. Eckstein: 8t is almost impossible to adversely posses the government s land. 8mplied limitation on railroads in Germont: They always impliedly get easements even

when they buy a fee simple. 5EGE' D841?65T '8D816L?64 2' 6


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0. hori=ontal privity#. vertical privity

3 The 2merican rule became, at one point, that for a covenant to run to assignees, it had to havearisen in conjunction with a transfer of some other interest in land.@ori=ontal !rivity re7uires transfer in conjunction with an estate in land, then that e"act estate has

to keep going down the line for vertical privity.1ovenants info from Dukeminier ;irst 'estatement of !roperty, p. I#)

@ori=ontal privity of estate is re7uired for the burden of a covenant to run at law. @ori=ontal privity is not re7uired for the benefit to run.

!olicy: !ut obstacles in the way of the burden running, but permit the benefit to run freely.2ll commentators have rejected the first 'estatement s re7uirement of hori=ontal privity3 The third 'estatement takes the approach that hori=ontal privity of estate is not re7uired for a covenant torun at law to successors.'eal covenants can be negative promises or affirmative promises.B2 covenant is not enforceable against an assignee who has no notice of it.C p. I#)

5. -, p. I#-: Traditional doctrine re7uires vertical privity for both the burden and the benefit of a

real covenant to run.&urdens and benefits run with estates in land, not the land itself. p. I#-&urden: covenant enforceable against an immediate successor in estate. 8f the promisor had a fee simple,then for the burden to run, the successor must take a fee simple. 1onse7uently, adverse possessors do notsucceed to the owner s fee simple, but rather take a new title by operation of law.&enefit: The benefit of the promisee goes to anyone succeeding to the promisee s estate or to a lesserinterest carved out of that estate.'eciprocal covenants are both burdens and benefits and are read like benefits, at least in Sanborn .

5ote, p. I#/ A 2dverse possession does not begin to run against either a real covenant or ane7uitable servitude until the promise is breached.The third 'estatement does away with the distinctions between the burden and the benefit and treats themall like easements. The 'estatement then draws a distinction between negative and affirmative covenants.

Third 'estatement: 5egative promises: Treated like easements.2ffirmative covenants: 4eparate rules set out for lessees, life tenants, and adverse possessors, and adistinguishment between benefits and burdens. ;or some of the distinguishments see p. I#/3 B&oth the benefits and burdens of affirmative covenants run to legal (i.e., non+trust* life tenants. The lifetenant s liability for performance of an affirmative covenant is limited to the value of the life estate.B2ll the appurtenant benefits and burdens of servitudes burdening the land when adverse possession beganrun to adverse possessors who have ac7uired title.Creation o" Covenants , p. I#'ule: B2 real covenant must be created by a written instrument signed by the covenantor.C'ule: 8f the deed creating a real covenant is signed by the grantor only, and it contains a promise by thegrantee, the promise is enforceable against the grantee because the grantee is bound by the act of accepting

the deed.'eal covenants cannot arise by estoppel, implication, or prescription, as can easements. E7uitableservitudes are also interests in land, but they can by implied in e7uity under certain limited circumstances.E7uitable servitudes cannot be obtained by prescription.Sanborn v. c&ean , p. I#

Facts : ` J The


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Issue : 'eal 1ovenants cannot be implied, must satisfy the 4tatute of ;rauds, and cannotarise by prescription (4ee ilbert /-), and parts of Sanborn *. 'eciprocal easements Psic,servitudesQ, on the other hand, can be implied by a general plan.

3ol#ing : 8t seems that the court holds the


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-. Release : normally, is written and recorded/. Ac:uiescence : ] failed to enforce servitude against other breaches and then seeks to

enforce the servitude against `0. Aban#onment : like ac7uiescence, e"cept that it makes the servitude unenforceable as to

the entire parcel rather than only as to the plaintiff immediately involved

#. 2nclean 3an#s : 1ourt will refuse to enjoin a violation of a servitude that the plaintiff previously violatedN. /aches : involves unreasonable delay by ] to enforce servitude against ` causing prejudice

to ` (laches does not e"tinguish the servitude but only bars enforcement*H. Estoppel : if ` relies on ] s conduct making it ine7uitable to allow ` to enforce the

servitude?% Eminent #omainB% Prescription


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There is a legislative reasonableness standard. The court reads deference into this and fashions this standard: !resumption of reasonableness rebuttable by ()* uniformly enforced (this isn t in the list,

but its implicit in the opinion on p. $$* (-* 2rbitrary (or malicious or capricious, p. $#*(/* imposes burdens on the use of lands it affects that substantially outweigh therestriction s benefits to the development s residents (meaning all the residents, should allthe residents be allowed to disobey the rulesR* (0* violates fundamental public policy.

The court calls this a rational relation test on p. $I. Y This standard should be patentlywrong because reasonableness is not rationality and the statute re7uires reasonableness.

2rbitrary J Bno rational relationship to the protection, preservation, operation or purpose of the affected land.C (implicates touch and concern doctrine*

There is, generally, a different standard without a presumption of reasonableness that isapplied to actions of the board as opposed to use restrictions in the declaration or masterdeed.

.issent : !oints out that a reasonableness test re7uires a weighing of the benefits and the

burdens. 2lleges that the court failed to weigh the benefit of having cats.8f the legislature changes e"isting covenants by statute, is that a taking from the benefited ownersRRestatement :

!resumption that servitudes are valid unless ()* illegal, (-* unconstitutional, or (/* violate public policy..irect restraints : ()* prohibitions on transfers without the consent of the association (-* rights offirst refusal (/* re7uirements that transfers be made only to persons meeting certain eligibilityre7uirements.In#irect restraints : enerally, use restrictions. Definition on p. )). These are only invalid if theylack rational justification. 8t is not easy to say that a restriction wholly lacks rationality. u#gment Rule : Decisions stand unless ()* outside the scope of itsauthority (-* in a way that did not legitimately further the corporate purpose or (/* in badfaith (arbitrary, malice, favoritism, or discrimination*.

The court admits that termination deserves Bheightened vigilance,C but that that vigilance

must still be analy=ed under the business judgment three part test. 5ote ), p. )I: 5. . e"tended the &9' to @?2 board decisions.There are three stan#ar#s that are applie# all over the place p. ) :

). &usiness 9udgment 'ule: 4econd+most deferential, probably a misnomer and bettercharacteri=ed as a rationality test.

-. 2ahrstedt three+part reasonableness: 4econd+most deferential, probably a misnomer and better characteri=ed as a rationality test.

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/. ;lorida reasonableness test applied to board decisions as opposed to declarations: ()* nostrong presumption of validity (-* balancing utility of restriction s purpose versus harmsresulting from its enforcement

?wner s 4hare: The declaration%master deed normally sets forth permanently each owner sfractional share of the whole project. This fi"es the ()* share of common e"pense (-* interest in

the project upon destruction and (/* ta"es calculated at the assessor s officeThe discussions of private policing and what+not come after the Pullman case.

0%N%-$))5illage of $uclid v. *mbler 0ealty 'o. , p. /$

Euclidian =oning with cumulative uses. !roperty values are one component of the general welfare. 1ite 41?T64. Eckstein. !olice power J health, safety, welfare, and morals. p. 0). !!: a =oning ordinance is constitutional unless its provisions Bare clearly arbitrary and

unreasonable, having no substantial relation to the public health, safety, morals, or generalwelfare.C

The court gives =oning regulations presumptive validity 8n many areas today, single+family use areas originally intended for suburbani=ation are

being converted to apartment or commercial since -$$I due to the overbuilding. 4ince the H$s, greenspace and public parks have been a big deal. @ighways changed things, suburbani=ation since the #$s, reverse suburbani=ation in the

last )#+-$ years, etcK P* 2orthwestern istributors, (nc. v. ;oning earing #oard , p. 0#

1an you prohibit an e"isting land useR This court used a takings analysis, unlike the $uclid court Three types of prohibitions on e"isting land uses

o 2bsolute prohibition (telling someone to immediately cease their use*o !rohibition with time to wind down (amorti=ation*o !rohibition on future use

This court finds the first two unconstitutional. The concurrence would only find the firstone unconstitutional and the second one constitutional if reasonable. 'easonable would bemore than $ days.

Bthe amorti=ation and discontinuance of a lawful pre+e"isting nonconforming use is per seconfiscatory and violative of constitutional rights related to propertyC

o p. #-, reasonable could be anything from ) to /$ years B2 lawful nonconforming Ppre+e"istingQ use establishes in the property owner a vested

property right which cannot be abrogated or destroyed, unless it is a nuisance, it isabandoned, or it is e"tinguished by eminent domain.C 8n this commonwealth, all property is held in subrogation to the regulatory rights of the

government. !resumption of validity on state and burden on property owner.

5. -, p. #$ has the rules for changes of use.

0%I%-$))

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Fle ibility in oningThe approach to nonconforming uses ranges from ()* Euclidian modifications to (-* distinctlynon+Euclidian approaches to (/* public control of land use.

Dariance (p. N)*: administratively+authori=ed departure from the terms of the =oningordinance, granted in cases of uni7ue and individual hardship, where strict application might run

afoul of the constitution. &acy Street ospitality v. &.*. , p. # : uy Bhad the right to be e7ually heard, not e7uallyignored.C Bthe council cannot be said to have made a reasoned decision based upon hearing all theevidence and argument, which is the essdence of sound decision making and to which PappellantQwas entitled as a matter of due process.C

pecial E ceptions (special+use permit or conditional+use permit*: use permitted by theordinance, but contains conditions and re7uires prior approval. 4ee p. N).'ommons v. 1estwood ;oning #oard of *d-ustment , p. ##

The =oning board must evaluate the traditional =oning purposes of light, air, and openspace, including desiderata like Bconserving value of surrounding propertyC and BaestheticconsiderationsC 25D they cannot base a decision on conclusory statements about lack of

har#ship or inconsistency +ith the intent an# purpose o" the plan . The 'ommons Two+!art Test: The court re7uires some analysis of ()* hardship and (-*

consistency with the plan. Eckstein: The consistency with the plan test is the discussion of adult bookstore in a

residential community v. a single+family house in a residential community with slightlydifferent setbacks ( 'ommons v. P* 2orthwestern *.

This is an area restriction, e.g. , setbacks and frontages, rather than use. Eckstein (pointed out in review session*: 2 use is more significant to the purposes of

=oning regulation than an area restriction. Therefore, the burden on ] to prove the userestriction is higher. !yle has a higher threshold because he wants a use variance.

Con#ition attachment : The =oning board can, generally, attach reasonable conditions to thevariance in order to minimi=e the adverse impact on the neighbors. $.g. fences, landscaping,outdoor lighting, noises, enclosure of buildings, etcKRule : Gariances run with the land. p. #N.Dariances re:uire :

). !ersonal hardship or 6ndue hardshipa. Binvolves the underlying notion that no effective use can be made of the property in

the event the variance is denied.C p. ## b. 'e7uires reasonable efforts to comply (trying to buy more land, selling it to

someone willing and able to use it for the =oned use, etcK*c. The hardship has to be related to utili=ation of the property and the community

rather than the individual infirmity of the current owner. p. #N, n. -.-. 5ot 4elf+inflicted or 4elf+imposed @ardship

a. @alf of courts won t allow you to buy knowing that you re going to try for avariance, the other half will not #H

b. 1annot dispose of part of land causing the rest to not meet the re7uirements ##/. ;inally, Bthe grant of the variance must not substantially impinge upon the public good and

the intent and purpose of the =oning plan and ordinance.C p. ##0. &urden of proof is on the person wanting the variance

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8ssues include (p. #H+# *: 2rea v. 6se restrictions rant v. Denial Due consideration given to both sides. 5otes 0+N.pecial E ceptions :

). This is a use permitted by the ordinance, but re7uires special permission. The 1ope caseholds that the =oning board has to follow guidelines in granting these rather than by fiat.

uidelines must come down to the board by the legislature.'ope v. (nhabitants of the +own of #runswic% , p. # The court refers to use by e"ception v. use by variance Gariance J broadest acceptable standard is Bnecessary to avoid undue hardship, provided

that there is no substantial departure from the intent of the ordinances.C 4pecial e"ception J the standard must include specific guidelines governing the granting of

e"ceptions. 'e7uirements of the ordinance are acceptable guidelines as well as Bnottending to devaluate or alter the essential characteristic of the surrounding property.C

pot oning :4pot =oning is invalid where some or all of the following factors are present.

). a small parcel or land is singled out for special and privileged treatment

-. the singling out is not in the public interest but only for the benefit of the landowner/. the action is not in accord with a comprehensive plan

B'everseC spot =oning is an issue. 4ee p. N0, n. ).State v. 'ity of 0ochester , p. N-: The court upholds a spot =oning occurrence because it passed therational basis test for public health, safety, morals, or general welfare and the takings clause.

4ee p. N0+NN for discussions on court s gradual adoption of spot =oning, !lebiscites, andthe disfavored )asano continuum approach to spot =oning.Con#itional oning : ()* conditions must be reasonable, or have a rational basis and (-* be free ofthe taint of undue influence and (/* e"actions must pass tests on p. ))H$+I . 4ee p. NH.4ee p. NI for ;loating =ones, 1luster =ones, and !6Ds.

0%)/%-$))Euclid involved little more than nuisance control, which justified light and air, dangers of

fire, overcrowding, and separation of commercial from residential. 4ee. p. N .State ex rel. Stoyanoff v. #er%eley , p. N

These people want to build an ultramodern house, but the ordinance creates an architectural board that can re7uire conformance to surrounding structures and bar unsightly, grotes7ueand unsuitable structures in light of property values and general welfare.

Rule : !eople s e"pectations of stable property values and the city s interest in a stable ta" base support allowing aesthetic considerations.

2esthetic factors may be considered when the enabling legislation authori=es considerationof general welfare and value of property. The aesthetic factor must be considered not alone,

but in conjunction with the effect on property values. #erman v. Par%er (41?T64, ) #0*: The legislature may determine that the community should be beautiful as well as healthy, specious, clean, well+balanced and carefully patrolled.5illage of #elle +erre v. #oraas , p. )$)

1ollege kids want to live together, but can t due to inconsanguinuity

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!!: ?rdinance constitutional when passes rational basis test, must be Breasonable, notarbitraryC and Bbear a rational relationship to a PpermissibleQ state objective.C 8f these aremet then the police power covers it.

0%)#%-$))

Constructive Ta*ing ("rom PP- : This is where Bgovernmental action in adjacent or neighboring property so severely depletes the value of private property that the citi=ens can bring an action forinverse or reverse condemnation.CRegulatory Ta*ing ("rom PP- : This is Ba government regulation that compels physical occupationof private property or deprives or severely diminishes the use and value of property withoutaffecting the ownership of the propertyC

6elo v. 'ity of 2ew &ondon , p. )$N# ;rom !!: Balthough the government may not take private land for the sole or primary

purpose of transferring it to another private party (bestow a private benefit*, it may transfer private land to another private party where the primary purpose of the taking is forsubse7uent public use.C

Economic development may 7ualify as a Bpublic useC The court will not second guess the government about ()* the efficacy of its development

and what constitutes a public purpose and (-* its determinations as to what lands it needs toac7uire in order to effectuate the project.

Look for whether the statute Bbenefits a particular class of identifiable individuals.C p. )$NI 2lso look for a Bmere prete"tC of a public purpose. p. )$NI. #erman allows regulation of beauty (p. )$-$*, id%iff allows regulation of oligopoly, 6elo

allows regulation of economic development, &oretto (infra* allows education value of tv.Policy Issues :


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hen the elements are not met then a balancing test is applied with the interests of theowner on one end and the interests of the public on the other.

&alancing test factors (totality, but typical e"amples include*: economic impact, degree ofinterference with investment+backed e"pectations, character of the action (p. )$I0*,Bpractical ousterC (p. )$I#*.

The right to e"clude is one of the most fundamental rights. p. )$I#. adachec% v. Sebastian , p. )$ N

The 5uisance Test:


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There are two categorical rules (p. ))/-*: ()* &oretto rule (-* all economical benefit decimated. 4calia writes a categorical rule (2* that if land is deprives of all economically beneficial

use, then a taking has occurred. and an e"ception (&* that no taking occurs when traditionalstate nuisance law would have prohibited the use anyways at the judicial level.

(&* 4calia points out a double e"ception hurdle (p. ))/I* ()* if similarly situated owners

have long engaged in the use, then there s probably no common+law prohibition, also (-* ifother similarly situated owners are permitted to continue the use, then there s probably nocommon+law prohibition.

&lackmun s dissent advocates the balancing test of government interest sufficiency, giventhe significant private cost.

&lackmun views the majority opinion as a 7ui"otic 7uest for value+free takings jurisprudence. (p. ))0-*

4teven s dissent points out the denominator problem and the ease of changing it to come towhatever result wanted, he also attacks the )$$Z diminution in value rule and agrees with&lackmun that this is probably not a )$$Z diminution in the first place.

5. ), p. ))0I: enerally, state courts reject conceptual severance and consider the impact on theentire parcel, while fed courts use conceptual severance.Teal:

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