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83 Cards in this Set
- Front
- Back
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Adverse Possession Test (6) |
1. Adverse or hostile/non-permissive 2. Actual Possession 3. Open and Notorious 4. Exclusive 5. Continuous ("Tacking") 6. Under Claim or Color of Title |
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Prescriptive Easement Test (6) |
1. Open and Notorious 2. Hostile 3. Continuous 4. NOT EXCLUSIVE 5. 15 years 6. Must show scope of use |
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Easement by Estoppel Test (4) |
1. Owner foresees a change in position 2. User becomes reliant 3. Justice so requires |
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Easement Implied from Prior Use (4) |
1. Previous common ownership 2. the rights were exercised prior to severance 3. Continuation of use is reasonable and necessary to enjoyment of servient parcel 4. A contrary intention is neither expressed nor implied. |
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Test that a covenant runs with the land (4)
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1. It must appear that grantor and grantee INTENDED that the covenant should run with the land2. Covenant "touches or concerns" the land3. PRIVITY4. WRITING |
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Reasonable Restraint Test (3)
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1. Nature of the interest subject to the restraint 2. Nature of the restraint itself 3. Interest the restraint is meant to serve |
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Trespass (5 => 3)
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1. Intentional 2. Entry 3. Property 4. Owned or Possessed by another 5. Unprivileged-no consent-no necessity-no public policy NO HARM NEEDED |
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Entry to Land
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Element of Trespass Minimal is enough By Agent or major object that bars owners from use/enjoyment of land (Glavin: D has landscaper cut down P's trees) |
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Consent to Enter
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(Desnick: Reporters allowed to enter then reports) Consent may be obtained through fraud (Food Lion: Consent is limited to the scope of the license) |
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Public Policy Right to Enter
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(State v. Shak: owner cannot keep out gov. workers from visiting migrants)(Matthews v. Bay Head Improvement: In NJ, Beach must be accessible to all) |
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Blackstone
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Property is the absolute right of exclusion of a person over a thing to the extent of anyone else in the universe Property right is a power over a thing and that power is absolute |
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Diffused Water (3)
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Common Enemy Rule: No liability Natural Flow: Strict liability Reasonable Use: liability to behave "reasonably"(Armstrong v. Francis Corp) |
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Light and Air
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It's a privilege, not a right (Prah v. Maretti, Fontanbleu v. EdenRoc) Hard to prove negative easement |
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Nuisance (4)
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1. Substantial and2. Unreasonable3. Interference with the4. Enjoyment of the land
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Negligence (5)
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1. Substantial and 2. Unreasonable 3. Interference with the 4. Enjoyment of the land PLUS Harm must be foreseeable |
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Privilege |
Owner can do the harm without liability because they have the right |
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Lateral Support
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Support for the land in its natural state is SL. Support for weight of structure is Negl. If natural support was sufficient for structures, SL. |
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Open and Notorious
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Owner should have known, doesn't have to actually know, about the trespasser's use.
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Radin
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A.P. is a competition between fungible value for the owner and personal value of the possessor
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Judicial Incentive for A.P.
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If law doesn't reflect reality, it becomes a joke |
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Friendswood Development
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If there's waste, malice, or negligence=>damages |
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Bohlen
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Courts pick winners in land use disputes and often pick the side that benefits them |
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(Rylands)
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The natural use of land will win over the unnatural use. Courts consider economic, social, and public forces in decisions. |
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Roscoe Pound
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Courts decide differently because of the different developmental state of the land. |
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Shugerman
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Courts respond to cultural factors of the time *When flooding is a fear, C side with miners
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Civil Rights Act of 1964 (4)
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+Denial of Full and Equal enjoyment +Based on Race, color, religion, or natl. origin +At a place of Public Accommodation: Listed; Serves the public; Affects interstate commerce or supported by state action. +Not a private club. REMEDY: Injunction |
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CRA of 1866 (4)
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+Denial of the right to make and enforce K; right to convey property +Based on race +At any place of public accommodation +A private club exception |
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Wesley Hohfeld
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Property right is a power over others, who can enter, who can use. Property rights are a bundle of sticks. |
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Rights Based Argument of Land Use
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When the individual knows their rights and responsibilities they act in a way that best serves society. |
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Social Utility Argument of Land Use
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Transactions are encouraged by forcing people to act in good faith. CC: This scares people from entering into licenses. |
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Quiet Claim
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Receiving Adverse Possession by having the deed changed instead of suing |
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Hegel
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One gets property because we get attached to certain external things that become a part of myself. The dependency becomes necessary for me to be a whole being.
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Requirement for Easement by Necessity
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1. Both lots were previously under same owner 2. Necessity 3. Owner conveys inner portion which is entirely surrounded by lands owned by someone else *There is a right to ingress and egress |
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Easements by Implication |
1. Prior Use 2. Estoppel 3. Necessity |
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Takings Per Se (4)
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Physical Invasion - Loretto (cable box) Deprivation of all economic value - Lucas (beach) Deprivation of core property strand - Babbitt Exaction - Nollan/Dolan/Koontz |
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Easements are terminated by... (4)
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Agreement Merger Abandonment By their Own Terms |
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Covenants are created by... (4)
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1. Writing 2. Intent to be binding 3. Touch and Concern 4. Privity of Estate |
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How do we know an exaction is not a taking? (3) |
Nolan: "Nexus": Is there a connection between what applicant wants and what city demands?Dolan: "Rough Proportionality": Will the city's request fix proportionally the harm from app?Koontz: "Money Takings": nexus and rough proportionality test applies to money takings as well. |
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Implied Reciprocal Negative Easement
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When owner sells a number of parcels with evidence of intent of a common plan 1. Covenants made to seller benefit all parcels 2. All parcels within the plan are bound |
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Grounds to Challenge Covenants
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1. Reasonableness and public policy 2. Constitutional violation 3. Discrimination under Fair Housing Act 4. Restrictions on alienability 5. Unreasonable restraint of trade |
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Concurrent Tenancies
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Tenancy in Common Joint Tenancy Tenancy by the Entirety |
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Tenancy in Common |
Default concurrent tenancy Each has right to transfer or encumber Tenants may file to terminate by partition |
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Joint Tenancy |
Survivorship Tenants must share: Title, Time, Interest, Poss Divorce or .5 Sale => tenancy in common |
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Tenancy by the Entirety |
Only to legally married couples It is default for conveyances to married couples Only severed on divorce or death |
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Fee Simples |
Fee Simple Absolute Fee Simple Determinable Fee Simple Subject to Condition Subsequent Fee Simple Subject to Executory Limitation |
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A remainder is Contingent if... |
1. It will take effect only upon the happening of an event that is not certain to happen, 2. It will go to someone who cannot be ascertained at the time of the initial conveyance |
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Three Vested Remainders
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Absolutely: identity cannot change Subject to Open: vested but others may join Subject to Divestment: vested but may be lost by an event that happens after |
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Rule of Convenience
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Most courts will close the class of children after death |
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Rule of Perpetuities applies to
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Executory Interests Absolutely Vested Remainders Remainders Subject to Open NOT Charities |
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Rule against Perpetuities is
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No interest is good unless it must vest, if at all, no later than 21 years after the death of some life in being at the creation of the interest.
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RAP steps
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1. Identify the future interests created by the grant 2. Identify what has to happen for the interest to fully vest 3. Identify all the lives in being at the creation of the interest. 4. Imagine a way that the interest won't fully vest |
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RAP Remedy
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Strike offending language that leaves an established estate
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Consent is valid if ...(Analysis from Desnick/Food Lion) |
1. Given to all entrants in light of reasonable public expectations. 2. Given to all entrants in light of owner's intent. FRAUD DOESN'T MATTER |
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Steps in covenant problems |
1. Was covenant property created? 2. If Y, does it bar the desired conduct in the case? 3. If Y, is the covenant enforceable? Look to Fed/State law and Common Law 4. If yes, has the covenant been terminated? (due to changed conditions, relative hardship). |
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Questions When Interpreting Easements...
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Does it run with the land? Is it appurtenant or in gross? Is it transferrable? Is it divisible/apportionable? What rights does the easement allow? |
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Penn Central ad hoc test for takings
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1. Economic impact on the owner 2. Character of government action 3. Interference with investment-backed expectations |
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Security v. Freedom
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Freedom to use my property in any way I see fit Security to be left alone on my property, but prevents others from acting freely Freedom w/o security is useless, and vice versa |
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Rules v. Standards |
Rules: Predictable, egalitarian, and promote transactions; rigidness bad Standards: Flexibility good; unpredictability and uncertainty bad Rules are often built into prices, which reflect rights, duties, and harms |
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Social Welfare v. Rights |
SW: Investment in resources development, efficiency Rights: Inviolability of property, predictability K to investment Right to develop may or may not overlap with social welfare |
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Uston |
Exclusion must be reasonable |
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Coase Theory |
If D causes more harm than good: injunction If D causes more good than harm: damages |
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Adverse Possession Policy Argument |
-Reward those who make efficient use of land -Possessor deserves fruits of her labor -Courts always protect "desirable" interactions -Rights in relation to other people, not things -AP is about breach of duty towards TO right of exlucsion |
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Hohfeldian Relationships |
Right-Duty Privilege -No Right Immunity - Disability
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Easement |
Grant of an interest in land that entitles a person to use the land possessed by another |
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Express Easements |
+In Writing, signed by grantor + |
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Modern Negative Easements |
+Conservation Easement +Historic Preservation Easement +Solar Power Easement |
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How do you kill an old covenant? |
Prove changed conditions and undue hardship. |
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Easements run only if... |
1. Writing (only has to be in original writing) 2.Grantor's intent (made clear in deed) 3.Notice(Actual, Inquiry, Constructive) |
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(Page County) |
+Nuisance is unreasonable HARM, not action +Is cost of prevention greater than cost of harm? +Want to find lowest cost avoider |
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Nuisance Remedies |
1. Injunction if ∆ causes more harm than good 2. Damages if ∆ causes more good than harm 3. No remedy if reasonable insubstantial harm 4. Purchased Injunction if there is nuisance but it is fair to impose cost on π |
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Presumption of Permission |
In A.P. no presumption of permission In P.E. if ambiguous, Y presumption of permission
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Does a covenant touch and concern land tests |
1. Does it increase the value of benefitted land and limit use of the burdened land? 2. is it reasonable? |
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What to look for with Implied Reciprocal Negative Servitudes |
Restrictions in most or all deeds in the plan Declaration of the development Recorded map showing development restrictions in the last deed Pattern of development If restrictions are NOT uniform, maybe not IRNE |
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Is it a lease or a license? |
1. Do you pay rent? 2. How much time do you spend there? 3. Are the facilities shared? 4. To what extent is the housing relationship tied to another?
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Kinds of eviction |
Actual Constructive Partial Constructive Retaliatory |
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Actual Eviction |
Changing the locks TN should stop rent and sue for trespass |
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Constructive Eviction |
LL directly or indirectly interferes with quiet enjoyment TN can stop paying rent and MUST move out Otherwise it is proof that unit is livable *Minjak case of flooding and construction in apt. |
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Partial Constructive Eviction |
LL directly or indirectly interferes with use/enjoyment of part of unit TN can deduct the proportion from rent This is a defense when sued for non-payment |
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Retaliatory Eviction |
LL evicts as response to tenant's complain/action RE is a defense against eviction
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Pressumption of permission |
AP is presumptively hostile PE is split on pressumption |
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Takings Analysis |
Public Use from Kelo Strand Per Se - 100% econ - Core Prop - Exaction Penn Central |
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Tenancy in Common and one party sells unilaterally, other party has 3 options... |
1. Do nothing and share the estate 2. Accept the lease and collect half 3. Sue for partition |
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Unjust Enrichment Proofs (3) |
A benefit conferred on D Appreciation or knowledge of benefit by D Acceptance or retention of benefit by D |
