1. OIT: License occupancy, nonpossesory, revocable at any time
2. Recognized Rights by Congress (statute/treaty) treats as sacred as Fee
3. US FEE: relationship is pupilage, duty to protect from 3rd parties and St. Gov't
If recognized by congress (statute/treaty), then gov't interference is subject to takings claim
THT: Mere assertion of JX is conquest. Dominion/Conquer? Physical v. legal. Battle or Legal (force of law): "threat of force" is suffiicent to be under US dominion
1. Taking of
2. Private Property
State Protections for Residential Property
3. For Public Use
Kelo Public purpose, Economic Development, Police power, Comprehensive Plan v. A ->B (literal view), Nuisance
1. First in time
2. Actual Possession
3. Intent to Possess
Depends on Policy: Controlling or holding of personal property with or without claim of ownership
Rule of Capture v. Pre-possesory rights = Equitable Division
Rule of Capture (Pierson): First with vested rights and power to exclude
Pre-Possessory Rights (Popov): Equitable division for peace, fight for exclusion may reward bad actors
The finder of property is typically entitled to the property against all others except the true owner unless trespassing.
Distinction w/ Lost/Mislaid/Abandoned
1. TO 2. Finder
1. TO 2. OLQ 3. Finder
1. FInder 2. OLQ
Grants a non-owner full ownership rights
1. Actual Possession
Physical use or occupation of the land
Objective- Whether or not the AP had the TO's permission to go on the property. No permission = hostile.
Good Faith (AP mistakenly uses another's property thinking it was hers)
(ex. Color of Title)
Bad Faith- AP knew property was not her own, and took possession anyway
(ex. Claim of Right: rewards wrongdoers)
3. Open and Continuous
Actual Notice- requires that the TO have actual knowledge that someone is on her property
Constructive Knowledge- acts that a RDO would be expected to be put on notice. Visible to an onlooker (neighbors) that the AP is the TO
AP must have dominion and control and not share ownership rights with TO or 3rd party
5. Continous for
Tolling: (SP time is paused)
If TO is under disability, time will not run agasint her the disability is removed. SOL is tolled (mental illness, minor, jail)
Ousted by 3d party? Time is paused until AP's return.
Ousted by TO? Clock is restarted
Tacking:Adding the time period of successive possessors to meet the SP (must have privity of title and conveyed by previous AP)
6. Statutory Period
# of years
1. Clarification of Title/Economic Efficiency
2. Promotion of socially beneficial use of land
3. Protection of expectation/psychological consideration
1. Makes a False Statement Concerning a Material Fact
2. Seller Knows is False
3. With Intent to Induce Reliance by the buyer
4. Injures the Buyer
Disclosure (Duty to disclose)
1. Known Facts
2. Material to Sale
3. Not within reach of a diligent buyer
Policy: Caveat Emptor
1. General Warranty Deed
Good against all defects of title
2. Special Warranty Deed
Only the action of the grantor are guaranteed.
3. QuitClaim Deed
No kinds of warranty, no assurances that grantor has right to convey, sell "as is"
Warranties of Title
Breached, if at all, at conveyance
1. Convenant of Seisin
Guarantee that grantor owns the property
2. Covenant of the Right to Convey Land
Overlaps w/ previous covenant
3. Convenant Against Encumberance
If there are encumberances, they must be disclosed.
Breached, if at all, after conveyance
1. Covenant of Warranty
Compensation for losses caused
2. Covenant of Quiet Enjoyment
Damages awarded if disturbed w/ cliams of superior title
3. Covenant of Further Assurance
The grantor will execute any documents to perfect title.
Designed to proect the subsequent Bona Fide Purchaser (BFP, actually pays interest for value)
Language of Time: First in time nad the first person who records gets the property.
Language of Notice: Whether the BFP had notice of the prior conveyance. The last bonafide purchaser wins if she had no notice of prior interest..
Subsequent purchaser can prevail agaisnt prior purchasers only if 1) they didn't know of prior purchasers, and 2) if they are the first to record the interest
Types of Notice
Notice involves knowing that there is a competing claim. Wild deeds do not count as record ntoice (outside the chain of title). Grantee shoudl check if the grantor has the property to convey.
1. Actual Notice
Conscious of a competing claim
2. Record Notice
Constructive knowledge with anything that has been recorded (does not include wild deeds)
3. Inquiry Notice
Person should've known if facts warrant an investigation. Inquiry notice does not include anything that is not discoverable.
Ownership and Possession: Sequential Ownership
Present Estates and Future Interest
For another's life
FSD or FSSCS: Modern Trend is FSSCS
FS or LE in R: Presumption of alienability
Policy: Certainty of vesting
FI has no rights until property possessory. However, if LE allows AP, FI can sue for Permissive Waste and sue LE for injunction
1. Worthier Title
Remainder O's Heirs
2. Rule in Shelley's Case
LE in A, R in A's heirs: A has LE and VRA (B's Intent to protect FI)
3. RSC applies Merger
LE in A + heirs: A has FSA (alienability)
4. RSC not applied?
LE in A, R in A's heirs: A has LE, A's heirs have CR
4. Class Gifts
All or Nothing
5. Destructibility Doctrine
Destroys CRs if they did not vest whent he preceding LE ended
Rule Against Perpetuities (RAP)
Future Interests are valid only if they must vest or fail by the end of a life in being, plus 21 years
FIs subject to RAP? CR, EI, or VRS2O
Identify the Measuring life (causal)
Kill ML + 1 day after conveyance. Will it fail to vest within the perpetuity period? Yes, RAP is satisfied
If not vested by 21 years, FI is void. Strike out violating language.
Reconstrue the conveyance with the remaining language
1. Terminated: All or Nothing
2. Modified: Rule of Convenience (closes the class when the remainder becomes possessory; the members of the class who are vested at the time of the closing take their share without threat of furhter partial divestment. Contingent remainders are invalid)
Modern Trend: Courts will wait until condition occurs or perpetuities period has ended, which ever comes first
Appoach where courts may reduce theh age contingency to 21 to validate the future interest (25 to 21)
Policy: Promotes Alienability
Ownership and Possession: Simultaneous Ownership
Tenancy In Common
*Each tenant, no matter how small the fractional interest, has the right to possess the whole unless all parties agree.
*Presumption in TIC over JT
*Each tenant has the right to possess the whole. JTs req to possess equal fractional interests.
*Right of Survivorship- When a JT dies, her property interest is immediately transferred the to the remaining JT's in equal shares.
*Created by 4 Unities: time, title, interest, possession. Severance destroys unity(s).
Tenancy by the Entirety
*Created by Unities: 1. Time, 2. Title, 3. Interest, 4. Possession, 5. Marriage.
*Right of Survivorship- Unlike JT, tenant cannot unilaterally sever TE.
*Per Tout et non per My- Both husband and wife must convey to sever or destroy the JT.
*Lien Theory: Know creditor issue (1 tenant not responsible for debts of the other, mortgage has no effect).
1. Physical: parcel is divided phsycially
2. Sale: Property be sold with proceeds divided as fractional interest
Ouster v. Abandonment
1. Explicit Act by which 1 co-owener wrongfully excludes other from jointly owned property
2. Constructive Ouster- character of the property must be such as to make joint occupancy impossible or impractiable (requires that ousted tenant make demand for rent as an affirmative act)
Requires an affirmative act by which the non-posessory tenant is put on notice that her co-owner is claiming adversely to the non-possessory interest because each co-owner has the right to possess the whole.
Rights to share rents paid by 3d parties
Right to lease her proeprty witho
Separating Posession from Ownership
Residential and Commercial
1. Term of Years
Specified period of time determined by the parties. FI in reversion or remainder in 3rd party.
2. Periodic Tenancy
Renewed automatically at specified periods unless either the landlord or the tenant chooses to end the relationship. Ex) month to month. Requires notice be given to end relationship.
3. Tenancy at Will
Similar to PT, however can be ended with no notice. Death of either party ends the tenancy. Still required to give notice, but has an absolute right to evict without being subject to defenses.
4. Tenancy at sufferance (holdover tenant)
Tenant who is in rightful possession but wrongfully statys after leasehold has terminated.
Lease or Licence:
Lease: Owner transfers exclusive possession of a defined space with intent to create tenancy
License: Non-possessory right to enter another’s land for some delineated purpose, freely revocable at any time by the grantor
Important- Lease requires notice to evict
Tenant's Right to Assign/Sublease
Conveys all tenant's remaing property interest without retaining any future rights of entry
Tenant retains some future interest or in the right to control the property in the future
LL can arbitarily refuse to assign/sublease
LL cannot arbitarily refuse to assign/sublease but must be reasonable
Tenants Right to Habitable Premise
Rent Abatement or Injunction
Implied Warranty of Habitability
1. Must be referenced to housing/building code
2. Landlord must have notice
3. Defects by general community standards of suitability for occupancy
4. Landlord has reasonable time to fix it
** Tenant may move out before the end of hte lease or stay and either stop paying rent or receive reduced rent until conditions are fixed
Breach of Covenant of Quiet Enjoyment
1. Actual Eviction (changing the locks),
2. Contructive Eviction,
3. Partial Constructive Eviction (interference leads to abandon a portion),
1. Substantial Interference w/ cov't of QE (use/enjoyment),
2. That make it Uninhabitable
3. Actual abandonment
QE applicable for other tenants
Generally no, unless landlord can control the action causing the nuisance (contextual analysis)
There is a presumption that eviction is retaliatory if it is within 6 mo. of the complaint of housing violations
RE Rest. Factors not retaliatory:
1. Legitimate business judgement
2. Good faith to dispose entire leased property or for different use
3. LL lacks financial ability to repair
4. LL did not act at first opportuniyt
5. LL was unaware of the T's activities protected by statute
6. LL's act was not discriminatory
Fair Housing Act (FHA)
Can't discriminate because of race, color, religion, national origin, sex, disability, and familial status.
Defines dwelling (roommate not dwelling)
Can't make, print, publish any notice statement or ad indicating preference or limitation
To refuse to sell/rent/negotiate after the making of a bona fide offer because of race, color, religion, sex, familial status, or national origin.
Prohibits false dissemmination of false information regarding availabiilty of housing because of race
Sex Discrimination (FHA)
Hostile Environment/Uncomfortable advances to tenant affects the lease
Quid Pro Quo (Sex for reduced payment)
Prima Facie Case Met
1. Member of protected class
2. Subject to unwelcome sexual conduct
3. Terms/conditions of situation adversely change (use/enjoyment)
4. Change causally connected to rejection
5. Hostile Environment
FHA Sect. 3613: Entitled to Rescission of lease. May award actual and punitive damages, and if appropriate, any permanent or temporary injunction, temporary restraining order, or other order.
Race Discrimination (similar to above)
1. Protected class
2. Apply and qualify to rent
3. Denied the opportunity to rent/inspect/negotiate for the rental
4. The housing opportunity remained available
3. Physical Intrusion
Exceptions: Necessary by Emergency, Prior consent, and Public Policy
Policy: Protects Possessory Interest
Five Factors to determine Nuisance
5. Manner in which business is performed
(1) Whether the person knows or should have known the results of her conduct
(2) Whether the person was reckless or negligent
Balance Utility & Gravity of Harm
(1) Social value that the law attaches to the conduct
(2) Suitability of the conduct to the character of the locality
(3) THe impracticability of preventing or avoid the invasion
Gravity of Harm:
(1) Nature of the harm
(2) Social value of the Plaintiff's use and enjoyment of the property
(3) Suitability of use to the character and the locality
(4) Burden on the Plaintiff to avoid the harm
Affects normal sensitivity [Dobbs v. Wiggins-outragous number of dogs barking]
The interference with the use and enjoyment of the land of others
5. Interference with the Use and Enjoyment of Another's land
Balance the Equities:
1. The character of the harm
1. Cost and Benefit of allowing or preventing the harm
2. Who Bears the Cost?
2. Lowest cost avoider
3. Who is at fault?
Coase theorem: All Coase is saying is that legal rules can effect economic efficiency, and that courts should thus increase efficiency by assigning entitlements to the parties who would purchase them in the absence of transaction costs. The feed lot would not buy out the developer, but the developer would buy out the feed lot. So the court makes the developer do that.
Remedies to Nuisance
P may obtain injunction against D's conduct when:
-D's conduct is unreasonable and causes substantial harm to P
P may obtain damages, but no injunction if:
-D's conduct is reasonable (causes more social good than harm) but the harm is P is substantial so that it is unfair to burden P with the cost of D's conduct
P is entitled to no remedy if:
-If the harm to P is not substantial
-D's conduct is reasonable and it isn't unfair to impose the costs of D's activity on P
Because of the social good of D's conduct, it is more important to avoid putting D out of business than preventing P's harm
P is entitled to purchased injunction if:
-D's conduct is unreasonable, but it is fair to impose the cost of shutting down D's conduct on P
Boomer: D is first in time is a good defense
Public Interest and Market Value
Cost Abatement- Business costs of reducing nuisance
Institutional Competence- Judges are not equipped with coming up with best solution (better to make parties make private deal)
Servitudes: Affirmative Easement
Created by will or deed
-Benefit RWL: exercise limited use or control of the SE and benefits the OWNER of the DE
Easement in Gross
-Benefit of the easement runs to a specific person
-Burden RWL on the SE, but BENEFIT IS NOT TRANSFERABLE WITHOUT WRITING and INTENT
Scope of Easements
1. The use is of the kind contemplated by the grantor
2. The scope of an easement must be able to reasonably accommodate the legitimate uses of the dominant estate and not unduly burden the servient estate
3. Easement can be subdivided
Servitude: Non-Express Easements
-Presumption is permissive
3. Open and Notorious
5. Stautory Period
6. Some JX: Exclusive
Estoppel (irrevocable Licenses)
1. License + Reasonably foreseeable reliance on License
2. Substantially changed position because of reliance
3. Injustice avoided only by creation of servitude.
1. Permission can be implied (acquiesence)
2. Fraudulent to allow detrimental reliance and revoke
3. Should a license be irrevocable?
Implied by Prior Use
1. Unity of ownership: two parcels owned by common grantor
2. One part of parcel previously used for benefit of other
2. Continuous or Permanent
3. Strict or reasonable necessity: whether a reasonable person would expect to continue use no matter who owned property
Rest. Prop. Factors:
1. Claimant is the conveyor or the conveyee
2. Terms of the conveyance
3. Consideration given for it
4. Claim is made against simultaneous conveyee
5. extent of necessity of the easement to the claimant
6. Reciprocal benefits result to the conveyor and the convee
7. Manner in which the land was used prior to its conveyance
8. Extent to which the manner of prior use was or might have been known ot the parties
Implied by Necessity
1. Unity of ownership
2. Severance creates a landlock parcel
3. Necessity for egress and ingress existed at time of serverance [strict necessity]
4. Vertical Privity
4. VP + HP
Touch and Concern
1. Benefit: must Increase value of property
2. Burden: Involves physical use of the property (narrow),
3. Burden: Still T/C if it affects legal interests (broad),
4. Burden: Restatement for T/C: Is it reasonable?
Strict Privity: FSA to FSA
Relaxed Privity: Anything less than FSA
Modern Trend (Rest): No privity required.
Real Covenant Remedy? Damages and Injunction
Why Equitable Servitude doesn't require privity? Remedy limited to Injunction.