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270 Cards in this Set
- Front
- Back
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Riddle v. Harmon |
Seller --> "to Francis and Jack as joint tenants" Already have a JT created by the seller, Riddles purchased the property and took title as jointtenants |
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Riddle v. Harmon Issue |
Did Riddle unilaterally terminate the JT by conveying her interest from herself as JT to herself as TIC? Did Riddles conveyance to herself sever the JT?
YES |
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Riddle reasoning |
Riddle did not want her husband to take all her property when creating her will but instead it broke the JT - she should have used a straw person (third party) to convey to yourself 1 JT can decide to unilaterally end a valid JT and destroy the right of survivorship without telling the other JT |
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Can create indestructible right of survivorship |
1. Creating a joint life estate with a contingent remainder in fee simple to the survivor 2. Creating a TIC in fee simple where survivor holds an executory interest 3. Create a fee simple to take effect in possession in the future |
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Actions by one JT resulting in severance |
Voluntary conveyance by one JT of all her interest (Riddle) Leasing by one JT Modern view - no severance |
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Leasing by one JT? |
Traditional view: leasing by one JT destroys the JT because leasing destroys unity of interest |
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Mortgage/deed of trust given by one JT? |
Modern majority - no severance because we dont want people to inadvertently lose their right of survivorship. When jt. tenants give a mortgage/deed of trust, they do not know that they are losing their right of survivorship - Emphasize intent of JT over the 4 unities |
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Relations Among Concurrent Owners |
Partition Possession and Rent Improvement and Repairs/Taxes and mortgage payments
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Partition |
Terminates the cotenancy (JT and TIC) May occur by agreement of all cotenants (do not have to go to court) Can occur by lawsuit by statute Equitable proceeding Trial judge has a lot of discretion Partition is right of all cotenants
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Partition - Trial judge can decide... |
Can decide to physically divide the property of sell the property
Can decide whether sale will be public or private |
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Partition is right of all cotenants |
Any cotenant (JT or TIC) can partition to promote alienability of land - co owners may not be able to decide how to use land so partition allows easier decision making One can waive right to partition as long as that waiver is not an unreasonable restraint on alienability |
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Two ways to accomplish partition |
Partition in Kind - physical division of land Partition by sale: property sold and proceeds are split between owners (depending on proportionate share) - more common
**Up to the courts to decide |
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Possession and Rent - What if both cotenants want to use and possess the property in the same manner at the exact same time? |
Both are allowed to use land as they wish - unity of possession
Can stand on the same square foot but it might not be possible at the same time |
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Possession and Rent - What if both cotenants want to use and possess the property in the same manner at the exact same time?
One cotenant is in exclusive possession |
Maj: no rent is owed by cotenant in exclusive possession but occupier is responsible for "carrying charges" up to fair rental value (taxes, mortgage interest, insurance, repairs) |
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Exception to Maj rule when one cotenant is in exclusive possession
If occupying cotenant "ousts" another cotenant
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(Spiller v. Mackereth) |
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Ouster |
Denying the other cotenant entry after demand or physical attempt to enter (ouster must demand or actually try to enter the property - demanding the other to vacate does not count) If this type of ouster has occurred, the cotenant in possession must pay the other rent |
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Possession and Rent: is the sole occupier an adverse possessor? |
Only after ouster Here, ouster means a claim of absolute ownership and denial and repudiation of the cotenancy "I am here for myself and not as a cotenant"
RARE |
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Possession and Rent: One cotenant receives rent from a third party lessee |
A cotenant can lease what they own
Costs/receipts by 1 cotenant: - When and how is money paid? - On what basis is amt. to be paid calculated? |
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Possession and Rent: One cotenant receives rent from a third party lessee
Methods of recouping costs from other cotenants |
Partition with accounting Independent action for accounting during cotenancy Action for contribution during cotenancy |
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Possession and Rent: One cotenant receives rent from a third party lessee
Methods of recouping costs from other cotenants Partition with accounting |
Partition declares monetary rights/liabilities of cotenants Accounting: equitable proceeding Settling all cotenants' accounts Final accounting because it's a partition with accounting |
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Possession and Rent: One cotenant receives rent from a third party lessee Methods of recouping costs from other cotenants
Independent action for accounting during cotenancy |
Proceeding for an accounting - one cotenant can bring such an action independent of partition
Cotenants still like the idea of owning the property just do not want to have to wait to get their share of the money |
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Possession and Rent: One cotenant receives rent from a third party lessee Methods of recouping costs from other cotenants
Action for contribution during cotenancy |
One cotenant made a payment for a certain expense (paid property taxes) and is seeking the other cotenants share This is one expense at a time Not adjusting all financial issues, just the one expense |
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Improvement and Repairs |
Repairs treated more favorably than improvements - necessary repairs are needed to maintain property over improvements
Improvements are optional where repairs are not |
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Taxes and Mortgage Payments |
Treated more favorable than repairs/improvements because they are mandatory payments |
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Improvements |
Improver receives all value added at end of cotenancy either in money or improved part of land - all value added not actual cost paid - improvements are not high priority |
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Repairs |
Cotenant who repairs the property receives actual cost at end of cotenancy |
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Taxes and mortgage payments |
Not limited by value - paying cotenant is reimbursed for actual payments made and can be reimbursed during the cotenancy |
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Landlord-Tenant Law |
Tradition, Tension, Change |
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Tradition |
Leasehold estate traditionally viewed as a conveyance of property Paradigm tenant - medieval farmer; the land itself was the important part of the property, the building structure did not matter as much Consequence - it is the tenant's land now (if the building burns down) |
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Tension |
Social and economic transformation Substandard housing conditions in many cities created tension between landlords and tenants Developments in other areas of law Advocacy by lawyers for tenants |
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Change |
New paradigm: a low-income urban tenant - focus on building over the land Judicial and legislative reform Modern lease looks much like a K Landlord now has certain obligations to tenant Lease looked at as conveyance and K |
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Lease as Conveyance or K? |
Leased building destroyed by fire not through fault of T; no pertinent lease provision. Does T still have to pay rent? Tradtl=YES Modern = Impossibility of performance by L so NO (minority) |
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Leasehold Estates
1. Ask... |
How does the tenancy end? Is notice required to terminate tenancy and if so, what type? |
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Leasehold Estates (types) |
Term of years Periodic Tenancy Tenancy at Will
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Term of years |
Lease for fixed period of time Ex: 1 year lease, 6 month lease (doesn't have to be in years) Period computable by formula - first day and last day tied to a calendar date No notice required to terminate - both L and T know when lease ends so no need for notice |
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Term of Years example |
Commercial lease - building under construction - T lease begins when construction is complete and the lease ends after 5 years (tie time to a calendar) |
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Periodic Tenancy |
Lease for a period of fixed duration that continues for succeeding periods until notice of termination is given - L and T can both give notice - Does not need to be in writing unless over one year |
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Periodic Tenancy - notice to terminate under CL |
If year-to-year = 6 month notice If less than year, notice equal to period required (max 6 months) Must terminate tenancy on final day of period Ex: if month to month T who began tenancy on Jan 1 decided on Mach 20 to terminate, the earliest termination would be April 30 |
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Periodic Tenancy - notice to terminate under statutes |
Requirements vary Often, notice equal to period is sufficient or length of notice is shortened In some states, tenancy need not end on final day of the period |
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Tenancy at Will |
Continues as long as both L and T wish it to Under CL, notice is not required to terminate Under statutes = often 30 days notice |
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Tenancy at Will not common |
If rent is paid on regular basis, it becomes a periodic tenancy by operation of law (implied) |
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So Called "tenancy" at sufferance |
Only arises when T holds over after end of tenancy Ex: term of years, parties know when term ended, but T stayed in the property after lease ended |
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Tenancy at sufferance gives landlord two choices |
Evict T Hold T to a new tenancy |
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Unconventional Lease |
L leases to T "for the duration of the war" for $2500 to be paid monthly - Do not know what type of tenancy this is because it does not fit any of the categories - Must look at the intent of the parties |
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Privity of K |
Requires enforceable agreement between L and T 3rd party beneficiaries can enforce Continues until release, or end of the lease |
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Privity of Estate |
What exists between L and T Created to make assignees liable |
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Liabilities among the Ts? |
If L collects from T, then T can collect from T1 or T3 - T stands in L's place - Subrogation: If T collects from T1, T1 can collect from T3, by virtue of subrogation If T1 has to pay L, then T1 has L's rights against T3 |
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Subrogation Example |
Insured driver gets into accident with negligent driver. Insured driver can sue negligent and recover directly or insured can call insurance company who will pay then insurance co can sue negligent driver - insurance company is subrogated to insured's rights against the negligent driver |
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Restrictions on Transfer by Tenant |
T can transfer as they wish with no limitations (general rule) BUT limited by statutes and lease provisions |
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Tenants in Default and IN Possession |
T is either: Holding over (and not otherwise in default) OR In default (not paying rent, not maintaining the premises) |
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Tenants in Default and IN Possession
If T is holding over, L has the option to: (2) |
Evict Hold T to new tenancy
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Tenants in Default and IN Possession
How can L evict? |
Berg v. Wiley - deals with eviction in general |
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Berg v. Wiley |
T v L for wrongful eviction; L's defenses are abandonment and surrender but jury do not buy the defenses However, it does not matter that Berg breached the lease, this case is about how L acted after the breach. The issue is the method used to evict Holding: self-help is never permitted Majority rule - L can only evict by using the judicial process |
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Eviction Rules |
Majority rule: L can only evict by using the judicial process Traditional CL: L can use self-help only if L uses reasonable force or self-help is done in a peaceful manner |
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Tenants in Default and in Possession
If T is in default, L can: |
Recover unpaid rent and damages AND Terminate the lease (and evict) - Basis for terminating lease
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Basis for terminating lease
Tenant in Default and IN possession |
-CL: independent covenants -Forfeiture clauses: clauses allowing L to terminate lease due to T's breach -Modern Trend: dependent covenants - if T does not perform their duty (such as paying rent) then L does not have to perform their duty (providing place for T to live) vs. Majority - statutes allow termination |
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Tenant in Default and Out of Possession (2 Situations where T would be out of possession) |
T expressly "surrenders" OR T has "abandoned" |
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Tenant in Default and Out of Possession
T expressly "surrenders" |
T gives up right to stay on premises L has choice to accept the surrender or not accept the surrender - If L accepts, then the lease terminates, but may have to pay damages - But L can choose not to accept surrender and hold T to remaining term of lease and recover unpaid rent AND re-lease premises or not |
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Default and Out of Possession
T has "abandoned" |
An implied surrender Abandonment requires that: - T vacates lease property without justification and - T does not intend to return AND - T is already behind in payments L can accept or not |
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Tenant in Default and Out of Possession
L's Duty to mitigate |
Duty to mitigate is strong majority L must attempt to reduce damages owed by breaching party by trying to find an equal substitute
Sommer v. Kridel |
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Sommer v. Kridel |
Lease was a term of years for two years. D requested L to release him , there was a "ready, willing, and able" prospective T but L did not release the premises - allowed the lease to keep going on without any rent being paid |
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Tenant in Default and Out of Possession
L's Duty to mitigate
What if L has "vacant stock?" |
Unit that has been vacated must be added to L's vacant stock - L must try to rent out the vacated unit in the same manner that L tries to rent out other unit L cannot put the vacated unit at the bottom of the list and rent it last so that the damages pile up |
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Tenant in Default and Out of Possession
L's Duty to mitigate
Must L accept any T? |
No, L still has legitimate interest to control who is on the land L only has to accept suitable Ts = financially responsible, will not destroy premises |
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Tenant in Default and Out of Possession
L's Duty to mitigate
Who has the burden of proof? |
Minority - L has BOP (L has to prove that L exercised reasonable diligence) Majority - T has BOP (T has to prove that L did not exercise reasonable diligence
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Tenant in Default and Out of Possession
L's Duty to mitigate
What consequences if L breaches duty? |
Rule 1: L's failure to mitigate terminates the lease, L cannot recover rent subsequent to abandonment Rule 2: L may recover the difference btwn the agreed rent (original lease w/T in default) and the amt of loss that could reasonably duty (money T owes minus money that L would have made if he had been diligent to rent to another tenant) |
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Tenant in Default and Out of Possession
L's Duty to mitigate
Can parties agree to waive mitigation duty? |
NO |
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Landlord Duties and Tenant Remedies History
Early CL |
Caveat Lease and independent covenants rule (T takes premises "as is") - One exception: actual eviction by L breaches covenant of quiet enjoyment (express or implied)) |
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Landlord Duties and Tenant Remedies History
Traditional CL |
Exceptions created caveat lessee Keep habitable furnished dwelling under short term lease Disclose latent defects - I know the roof leaks but T inspects during summer w/o rain - L has duty to disclose Maintain common areas - pool, lobby, stairwells, fitness center` Carefully undertake any repairs
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Landlord Duties and Tenant Remedies History
Traditional CL |
Started to see the weakening of caveat lessee due to widening of clearly CL exception to caveat lessee that actual eviction by L breaches L's covenant of quiet enjoyment Whenever changes to CL are made, it's not wholesale, but gradual Rationale: L was in the best position to remedy these defects |
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Landlord Duties and Tenant Remedies History
Modern CL |
Constructive eviction breaches quiet enjoyment Substantial defect in premises treated as an eviction if T vacates and if defect "w/in scope" of the covenant of quiet enjoyment "Within scope" of covenant of quiet enjoyment - breach of duty in lease, imposed by statute |
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Landlord Duties and Tenant Remedies History
Modern CL
Constructive eviction breaches quiet enjoyment |
L shouldn't be able to get away w/ things that aren't actual physical eviction but amt to the same T protected if L turned off the heat in the middle of winter and didnt repair the water CL gives duty if L actually evicts while M CL gives duty if L constructively evicts May only apply to certain kinds of leases by jx |
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Landlord Duties and Tenant Remedies History
Modern CL "Substantial" defect in the premises treated as an eviction if T vacates, and if defect "w/in the scope" of the covenant of quiet enjoyment |
Originally, in the development of these rules, the eviction by L was the remedy - This rule gives T a remedy. T had to evict themselves to get the benefit of this option - May be an attractive option b/c T probably wants to leave the premises - Might not be an attractive option bc of their circumstances |
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Landlord Duties and Tenant Remedies History
Modern CL "Within the scope" of the covenant of quiet enjoyment - breach of duty in lease, breach of duty imposed by statutes, exceptions to caveat lessee |
What's "w/in the scope" of the covenant of quiet enjoyment? - Duties contained in the lease - Provision saying L will maintain the roof - Duties imposed by statutes - housing code - The standard exceptions to caveat lessee |
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Landlord Duties and Tenant Remedies History
Modern CL
SUMMARY |
Under modern doctrine of quiet enjoyment and constructive eviction - eviction became the remedy for Ts and eviction was expanded to include constructive evictions |
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Village Commons LLC v. Marion County Prosecutor's Office |
Exclusive-remedy provision is valid and enforceable Provision seems to say that T cannot terminate the lease or withhold rent, so if that provision is valid why did the TC and AC decide that T could terminate lease and withhold rent? Ct. states that Ls acts or omissions end the rent obligation under quiet enjoyment and constructive eviction |
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Village Commons LLC v. Marion County Prosecutor's Office
There were actual and constructive evictions |
Actual - beg. of Oct. 2002 - Constructive - as of Jan. 28, 2003 Actual eviction: when L said that T should take evidence files away from the parts of the building that was flooding - L said not to use a particular part of the premises. Saying not to use part of the lease premises constituted as actual eviction, altho it was only a partial eviction
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Constructive eviction |
interference with possession so serious it deprives beneficial use and enjoyment of the premises - Transitory and fleeting: interference with possession not sufficient to constitute constructive eviction |
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Majority view of quiet enjoyment and constructive eviction
Remedies |
Must T still evict herself? NO - a suit for damages is generally allowed now If defect is "substantial" - T may choose to vacate or sue for damages caused by defect Damages = diff in value between what lease would be worth w/o defects and value of lease with the defects |
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Majority view of quiet enjoyment and constructive eviction
Remedies - defect not substantial |
T can still collect damages, but must pay rent
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Majority view of quiet enjoyment and constructive eviction
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L must be given notice of defects - oral is ok L must be given a reasonable time to correct problems Partial constructive evictions are common and treated differently |
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Landlord Duties and Tenant Remedies
Modern Statutes
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URLTA (1/3 of states) Statutory warrant of habitability (30+states) Protection against retaliatory eviction (30+states) Authorization for Ts to repair and deduct Housing codes (all states) |
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Landlord Duties and Tenant Remedies
Implied Warranty of Habitability (IWH) |
Burden of most repairs are shifted to L, regardless of lease provisions Substantial variations among jxs re coverage, remedies, calculations of damages - We will apply the VT version set forth in Hilder v. St. Peter |
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IWH in Hilder v. St. Peter
Source |
Housing code violations are included in scope of IWH CL Hybrid-mix of stat law and CL Source plays an important role in determining what the standard is - where the law comes from will help determine the standard |
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IWH in Hilder v. St. Peter
Scope |
1. Problems: Latent and patent defects (not caused by T) - Hidden defects and those that are readily observable and T does not assume risk by moving into premises Essential facilities Common areas |
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IWH in Hilder v. St. Peter
Scope |
Time period: - Throughout the tenancy Type of premises: - Residential leases and Not commercial leases - commercial T must look to constructive eviction and quiet enjoyment |
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IWH in Hilder v. St. Peter
Standard (what breaches the warranty?) |
"Safe, clean, and fit for human habitation" or Substantial code violation or Impacts safety or health of T T can look to housing codes or T can look to the CL |
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IWH in Hilder v. St. Peter
Standard Examples |
Broken doors and Leaky roof= breach Cosmetic cracks = NOT a breach Window blinds not working = NOT Defective wiring = breach Rodent infestation = breach Sewage backup = breach |
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IWH in Hilder v. St. Peter
Remedies |
IWH as an affirmative COA - T can stay on premises, has to pay rent, and can sue for damages IWH as a defense to L's lawsuit - T can stay, withhold all rent, defend L's eviction proceeding, and recover damages Repair and deduct Rescission |
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IWH in Hilder v. St. Peter
Remedies |
Damages - difference between value of dwelling as warranted and value in defective condition and perhaps punitive damages If periodic tenancy, and if T states, can't L just terminate after giving notice? -Maj: NO - this is likely retaliatory eviction which is prohibited |
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IWH in Hilder v. St. Peter
Notice and Waiver |
Notice: T must notify L and allow reasonably time to correct defects
Waiver: IWH cannot be waived |
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Land Transaction
K of Sale |
Executory K, title isn't transferred immediately Binds B and S and starts process Usually a standard form K Provides protection for B and S - B does not want to spend money on steps taken to purchase home if S is going to sell to someone else Most actions taken by B, but both B and S have to do certain things |
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Land Transaction
Introduction |
Various names for the K of sale Standard forms become a K tailored to specific transaction - lots of blank spaces to fill in items specific to that transaction Real estate practice is a matter of state law and local custom - State law: what certain words in a deed mean - Local custom: differences in practices btwn North and South CA |
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Land Transaction
SOF |
Most of the time satisfying the SOF is not an issue because you can just get a form K of sale - Basic requirement: signed writing - Additional min. requirements established by judges, vary by jx - Plus exceptions, esp. part performance |
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SOF requirements |
Signed by party to be bound Identify the real estate; and State the price |
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Land Transaction
Marketable Title: An Implied Condition |
Not the most commonly used standard of title What consequence if "condition" not met? - Party may rescind K of sale if condition is not satisfied - Ex: inspection reveals undisclosed prob with the property; benefited party is the B; B is therefore able to rescind |
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Land Transaction
Marketable Title: An Implied Condition, unless the K contains another title provision |
Not implied if K contains another title provision May not be implied, but it may be expressly contained in the K But K may expressly incorporate the marketability standard, usually modified in some way
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Land Transaction
Marketable Title: An Implied Condition
1. Title Generally |
A. Title to land is not like title to car - not a certificate of title document B. For real property, title is not a piece of paper C. Title to land is an abstract concept, represents what the legal system conclusions regarding the interests that exist for a piece of land and who owns those interests D. Marketable title - something that is very close to fee simple |
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Land Transaction
Marketable Title |
Something that is very close to a fee simple, but not perfect title (b/c perfect title cannot be obtained thru our recording system)
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Lohmeyer v. Bower
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L signed a K of sale, he found out about 2 restrictions on the property and that the property violated those restrictions so he wanted to back out of the transaction b/c the condition of marketable title was not fulfilled
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Lohmeyer v. Bower (2 restrictions on the property)
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Private covenant requiring a 2 story house and
Public zoning requiring 3 foot set back |
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Lohmeyer v. Bower (Rationale/Holding)
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L is able to back out of the K of sale and this case helps us define "marketable title"
Marketable title = good merchantable title or something that a title insurance company would insure, subject to all restrictions and easements of record applying to this property - K gives seller the right to cure title dfect |
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Lohmeyer v. Bower
De Zoning restrictions render title unmarketable? |
No, the mere existence of zoning restrictions does not render title unmarketable
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Lohmeyer v. Bower
Do private restrictive covenants render title unmarketable? |
Yes, the mere existence of restrictive covenants renders title unmarketable
Why do private restrictions negatively affect title but zoning restrictions do not? Title relates to private interests in land (easements, mortgages) |
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Lohmeyer v. Bower
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The K of sale said that L had to accept the restrictions that rendered title unmarketable (waived defects "of record") so L agreed to accept the defects in title. So the existence of private covenant cannot be basis for rescinding K
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Lohmeyer v. Bower
Zoning ordinance and restrictive covenant |
Both were violated. L complained about the violating of zoning ordinance and restrictive covenants - he did not waive the violations of restrictive covenants.
There also existed the "hazard of litigation" - Local govt could bring action against L if he had gone thru w/purchase and made him move house -Homeowner associations and neighbors can bring action for breach of restrictive covenant |
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How to determine marketability of title?
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Look at K - look for waiver of defects
Does the existence of this type of restriction render title unmarketable? (if not, waived in K) Are things that are complained of, by their mere existence, render title unmarketable? If restriction does not render title unmarketable, do violations of such restrictions render title unmarketable? |
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Other common title standards
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Insurable title - could be coupled with
marketable title Record title - title can be proven from public land records alone |
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Defects which render title unmarketable
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Zoning restrictions? NO
Private restrictive covenants? YES Zoning violations? YES Mortgages and liens? YES Easements? Maj: yes Title by AP? Slight Maj: No |
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How do we transfer land with title defects?
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Put a provision in the K - draft appropriate
contact provision (and deed language) - "Subject to (listed defects)" - "Expecting (listed defects)" |
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Seller's opportunity to cure defect
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Title provision in Lohmeyer K
"Sufficient Time" v. "time is of the essence" |
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Sufficient time v. Time is of the essence
(Seller's opportunity to cure defect) |
If there was no "time of the essence" clause, then a court would give a party a reasonable time for performance - without such a clause the closing date does not become absolute deadline
If a K has "time is of the essence" clause, then the parties must perform by date of closing - no extra time - both parties benefit - want job done quickly |
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Characterization of interests during executory period: real property or personal property?
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Are the interests under K, between signing and closing, considered real prop or personal prop?
- Ex: inheritance upon death of buyer or seller before closing Equiable conversion: "equity regards as done what ought to be done" - Seller should have real property interest and buyer should only have a contractual pers. prop interest |
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Risk of Loss - Issue
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Issue is not equitable conversion, issue is loss of property or damage to the prop during executory period. if all or part of prop is destroyed, what are the obligations of the parties, who suffers the loss?
- This will assume that neither party was at fault |
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Risk of Loss - Who should suffer the loss?
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The party that has insurance should suffer the risk. Usually, the seller has insurance on the property before closing
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Risk of Loss - Who should suffer the loss?
What are the pertinent policies? |
What are the parties' expectations? Usually the seller is expected to have insurance, buyer does not expect to be owner of property until after closing
Who is best able to prevent the problem? The seller, he has control of prop and can prevent problems Who is most likely to have hazard insurance? Seller Many states do not look at policies and make buyer responsible |
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Risk of Loss - Who should suffer the loss?
K provision controls |
Could provide B has the choice to let S's insurance fix or rescind
Could provide that risk of loss is on B and S has insurance, B gets the proceeds of insurance policy in the event of loss |
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Risk of Loss - Who should suffer the loss?
If no provision... |
K is specifically enforceable, majority applies - equitable conversion i.e. risk of loss is on B
One minority rule: risk of loss is on the party in possession (usually the seller) |
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Risk of Loss - Who should suffer the loss?
Uniform Vendor of Purchaser Risk Act |
Risk of loss is on party in possession
- Aligns with the concern that the person in possession has more capability to protect the property from loss - Will control, absent K provision - Adopted by: CA, NY, and 10 other states |
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Duty to Disclose
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Deals with physical condition of property
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Historical evolution of duty to disclose
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Trad. CL
Judge made expectations whittle away trad. rule Courts establish a completely new CL rule Legislatures enact modern statutory requirements, usually elaborating on new CL |
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Traditional CL - Duty to Disclose
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Caveat emptor (buyer beware)
Seller is not promising anything concerning the physical condition of the property - buyer must inspect for themselves |
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Breakdown of trad. rule - duty to disclose
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Caveat emptor with exceptions:
misrepresentation, active concealment, confidential relationship |
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Modern CL Majority - Duty to Disclose
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Seller must disclose known material defects not readily observable by average buyer (i.e. latent defects)
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Modern Stat. requirements - duty to disclose
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Most states have statutes that require disclosure
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Stambovsky v. Ackley - FACTS
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Haunted house - never disclosed but S actively expressed that the house was haunted to public in the town. However, buyer was from out of town and may not have had the opportunity to know that.
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Stambovsky - NY Law
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Follows caveat emptor with exceptions (active concealment and confidential relationship)
- Buyer can only rescind if seller makes affirmative misrepresentation - S has to lie to B |
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Stambovsky - Caveat emptor is based on B's ability to find defects
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How can B inspect to protect themselves when its ghosts?
B cannot inspect for this type of psychological impact B could find out reputation but probably would never even start to look because ghosts do not exist |
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Stambovsky - is the condition of the house being haunted material?
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Cts. assumes a decrease in value of prop due to reputation
S has the burden of countering presumption that "haunted" houses sell for less |
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Stambovsky - Rule from this case
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Where a condition, created by the S, materially impairs the value of prop and an average buyer is unlikely to discover, by exercising due care, non-disclosure of condition allows rescission of K
Between Modern CL and Older CL Rule |
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Johnson v. Davis
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Fraudulent misrep by S - S knew that the windows and roof leaked but said they did not (affirmative misrepresentation)
Case represents Modern CL version of duty to disclose - this is maj: CL rule |
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Johnson v. Davis
Does traditional distinction btwn misfeasance (an action) and nonfeasance (failuter to act) make sense? |
Trad view: nonfeasance was not actionable; not saying anything and not concealing could not give rise to lawsuit. However, misfeance was
actionable Ct. says the tradtl distinction is no longer viable |
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Johnson v. Davis
New rule in FL |
Where a seller of a home knows of facts that
materially affect condition of prop, that are not readily observable by buyer and not known to B, S has a duty to disclose those defects to buyerq |
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Johnson v. Davis
How do you advise clients under modern CL rule? |
Questions about what is material? What materially affects value of prop? Have to consider whether a defect materially affects value of property - depends on prop and the region
What states follow obj. standard - would this defect be material to the average buyer? |
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Should purchasers rely on disclosure
statements? |
Sometimes
Home inspections solves this problem |
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Buyer's professional inspection - duty to disclose
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Types of inspections
usually limited to only major components notice by buyer, waiver - what inspection revealed negotiation - parties may re-negotiate if inspection reveals problems |
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Seller's representations (duty to disclose)
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Expands beyond physical condition of house and land
- Code violations - Pending rezoning -Boundary lines disputes, easements -Improvements w/o permits |
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As is provisions - duty to disclose
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No seller representations or warranties
Buyer's inspection rights - how those rights can lead to termination of K Waiver by buyer, if buyer does not bring up any issues then buyer waives those issues |
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Merger Doctrine
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Longstanding tradl doctrine - when buyer accepts deed at closing, the K of sale merges into deed - only lawsuits buyer can bring after closing are those related to warranties in the deed
Modern courts move away from merger doctrine- apply merger only to title matters |
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Type of Deeds
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General Warranty Deed
Special Warranty Deed Stat Short form deed Quitclaim Deed |
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General warranty deed
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Contains six standard warranties against ALL defects in title, no matter when they arose
Seller guarantees against defects that they created and defects created by prior owners |
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Special warranty deed
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Contains six standard warranties only against those defects in title resulting from acts of this grantor
Seller guarantees against defects that seller created |
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Statutory short form deed
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Just using the word "grant" warrants that:
- Grantor has not conveyed the same estate to anyone else (special covenant of seisin) and the land is free of encumbrances placed or suffered by the grantor (special covenant against encumbrances) |
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Quitclaim deed
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Warrants nothing
Why use this? Divorce and boundary disputes |
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Warranties of Title
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Seisin
Right to convey - essentially the same as seisin Against encumbrances General Warranty Quiet enjoyment - essentially the same as general warranty Further assurances |
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Present v. Future covenants
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Seisin, right to convey, against encumbrances = P - breached at time deed is delivered
General warranty, quiet enjoyment, further assurances=F - after delivery like eviction Goes to question of breach - when are these warranties breached? only at time deed is delivered or only after deed is delivered? |
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How are covenants breached - mere existence of superior title or only by "eviction?"
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Present covenants = mere existence of superior title
Future covenants = eviction or interference with possession - Brown case - if 2/3 owner started mining minerals, now there is an eviction at least over the part of land or inference w/possession of surface estate - until that happens no breach of F covenant - has to be assertion of superior title not mere presence and assertion must be done by actual owner of superior title |
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Brown v. Lober
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Original owner conveyed 80 acres Bosts in 1947, reserved 2/3 of mineral rights. Bosts conveyed to Browns in 1957 general warranty deed w/o exceptions. In 1974, Browns attempted to sell all mineral rights to a coal company. Coal company searched records and found that the original owner held 2/3 of mineral rights, so Browns could only sell 1/3. Brows sue executor of Bosts's estate for money that they would have received if they had own all mineral rights - Browns should have done a title search before purchasing the prop from Bosts
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Brown v. Lober - Holding/Rationale
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Browns lose because they are too early in some aspects but too late in others
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Brown v. Lober - title covenants at issue
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Covenant of Seisin - present covenant - breached
Covenant of quiet enjoyment - future covenant - no not breached since only breached at time of "eviction" and no eviction had occurred at this time |
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Damages for breach of warranty
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Follows K law mostly - but P does not always receive full benefit of the bargain
For all covenants, damages are limited to total price received by warrantor - party who gave warranty should not have to bear a greater burden bc property's value has changed |
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Damages for breach of warranty - Seisin
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Recission measure
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Damages for breach of warranty
Encumbrances |
Cost of removal (if there is a dollar value) or
difference of value of property with defect and without defect |
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Validity of deed: delivery requirement
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To be valid must a deed:
Be exchanged for consideration? NO Be acknowledged before a notary public? NO - BUT deed must be notarized to be recorded Be recorded at the courthouse? NO Be witnessed? NO |
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Validity of deed: deed must
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Comply with SOF
Be delivered - action or words including oral statements that demonstrates an intent to be immediately bound by the transfer - no separation between delivery and intent - delivery = intent |
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Deed delivery is presumed..
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If deed is physically handed to the grantee
If deed is acknowledged before notary public If deed is recorded |
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Deed delivery - method of delivery
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Delivery in escrow - escrow must be irrevocable
Escrow agent becomes agent of both B and S |
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Deed delivery - method of delivery directly to
grantee |
Physically handing deed over
Delivery by words alone |
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Hannan v. Dutsch - concept of "quiet enjoyment"
Delivery of Possession |
L's duty to assure T of "quiet enjoyment"
Under older CL, lease promises were independent of one another - promises did not depend on each other, T's promise to pay rent was independent of duties on part of L Thus breach by L did not give T the right to stop paying rent but T could recover damages |
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Hannah v. Dutsch - concept of "quiet enjoyment"
Exception Delivery of Possession |
T's obligation to pay rent was dependent on T having possession undisturbed by L
If L or someone acting for L disturbed T's right to possession of the premises, then T could stop paying rent Ex: L comes onto lease property and physically throws T off the premises |
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Hannah v. Dutsch
Three issues |
Does L have duty to deliver right to possession?
Does L have duty to protect T against third party trespassers after T is in possession? Does L have duty to assure T physical possession at beginning of lease term? |
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Hannah v. Dutsch - Two rules (50/50 split) no majority
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American Rule
English rule |
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Hannah v. Dutsch
American Rule |
L has implied covenant only to give T legal right to possession, not to put T in physical possession
Reflects lease as a conveyance - T's property no longer Ls so T has obligation to get physical possession Incoming T has same remedies of L against holdover T |
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Implied covenant
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Default rule, the covenant exists even if it is not mentioned in the lease. Parties can K out of this rule
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Hannah v. Dutsch
English Rule |
L has two implied covenants:
To give T legal right to possession AND To deliver physical possession at the beginning of the lease term Reflects lease as K - L has more duties to T Remedies: T has remedies against L - can terminate the lease and recover damages from L or T may affirm lease, not pay rent while kept out, and recover damages from L |
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Hannah v. Dutsch Policy favoring American Rule
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In most jxs, T can fend for themselves - T can
negotiate with L to include an express covenant to give T physical possession T has same remedies as L against holdover T - choice to evict of make holdover T pay rent |
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Hannah v. Dutsch Policy favoring English Rule
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L presumably knows the status of property when entering into a new lease - knows whether T will hold over or not. L has important info and is the best source of this info, L has evidence of holding over and can bring that info forward. L will be involved in lawsuit, so put the duty on L
L more familiar with eviction processes and are better suited to evict holdover T - so better to put the duty on L |
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Subleases and Assignments
Determining rights/obligations of the parties (especially rent) after a transfer by T |
L->T->T1
L-> T = an enforceable "head lease" or "primary lease" T-> T1 = either a sublease or an assignment |
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Assignment
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L can transfer her interest (reversion)
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Assignment and Subleases
Most common issues following transfer, from whom can L collect unpaid rent? |
Depends on who is in privity with whom
Privity depends on whether the transfer is classified as sublease or an assignment |
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Privity
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Voluntary transfer between the parties
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Two approaches to distinguish between subleases and assignment
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The formalistic "fixed legal test"
The "intention of parties test" |
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Formalistic "fixed legal test"
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Majority
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Formalistic "fixed legal test"
Transfer of full remaining term |
Assignment
Ex: lease for 3 years, head T lived on premises for 1 and transfers all interest under the lead lease (remaining 2 years) to T1 |
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Formalistic "fixed legal test"
Transfer of less than entire interest |
Sublease
Ex: lease for 3 years, head T has lived on premises for 1 year and transfers 1 year under the head lease to T1 T transfers something less than the remaining term on the lease |
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Formalistic "fixed legal test"
If T retains right to re-enter on transferee's default |
An assignment (slight majority)
Right to re-enter sounds like right of entry from defeasible fees. Used in a different manner here |
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The "intention of parties test"
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Minority approach
More difficult to apply - words used are not conclusive (but often determinative anyway) How do we determine intention of parties? Usually there is a document between T and T1, it will probably say "sublease" or "assignment" at the top. But words are not conclusive because the parties usually do not know what the words mean (especially if they haven't been advised by counsel) |
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The "intention of parties test"
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Search for indicators of intent - look for indications that T has intended to transfer all of their interest or less than all of their interest to T1
Ex: if T transfers for a lump sum payable up front, then this suggests an assignment - seems to have transferred all of their interest Ex: If T asks T1 for an increase in rent and the parties agree on an increase, then this suggests a sublease. Seems like a sublease because the increase is rent suggests that Ti is acting like a landlord |
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Assignments - Privities
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Privity of Estate
Privity of K |
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Assignment Example
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L -> T->T1
L->T = enforceable lease L->T1 = assignment |
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Assignment - Privity of Estate
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Legal fiction that allows L to collect rent from the party in possession (T1)
This is often because T1 does not make any promises to L, thus there is an absence of K remedy, so privity of estate fixes that problem T1 comes into privity of estate with L - landlord tenant relationship T1 becomes principal (primary liable), T becomes surety (secondary liable) |
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Assignment - Privity of Estate
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T can still be sued by L because L and T still have a leasehold arrangement - lease (a K)
L can sue T and T1 does not have to sue T1 first. If T has to pay L, then T has rights against T1 (because of the principal-surety relationship L and T once had privity of estate but now its between L and T1 but privity of K remains between L and T unless there is a release by L or end of lease by L's material breach or by its own terms |
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Assignment - Privity of K
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Remains between L and T even if there is a T1 unless there is a release by L or end of lease by L's material breach or by its own terms
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Assignment - Privity of K Release
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Not entering into a new lease, but just when L release T from liability - not very common
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Assignment - Privity of K Material Breach
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T will have ability to end lease
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Assignment
Privity of K - Lease ends by its own terms |
Time on the lease runs out, party gives notice, etc
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Assignment
Privity of K - Novation |
Substitution of 1 party to a K with somebody else. Novation could be where L voluntarily agrees to put T1 in place of T under the head lease. That would destroy privity of K between L and T because T1 is now put in T's place
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Subleases Example
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L->T->T1
L->T = enforceable lease T->T1 = sublease |
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Sublease Privity of Estate
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T and T1 are in privity of estate NOT L and T1(landlord - tenant relationship)
There can be two privities of estate in same lease - L and T, T and T1 |
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Third Party Beneficiaries (Sublease)
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Allows third party to sue someone who they would not otherwise have rights against
L benefits from T1's promise because now there are 2 people liable for unpaid rent (T and T1) T1's promise to T refers to head lease and L benefits from that promise |
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Privity of K
Sublease |
Requires enforceable agreement between L and T
3rd party beneficiaries can enforce Continues until release or end of lease |
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Privity of Estate
Sublease |
What exists between L and T
Created to make assignees liable to L |
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The Recording System
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Exists in every country throughout the nation
Documents are required "seriatim and in extenso" Official recorder uses a grantor-grantee index In purchase transactions, standard title search is done before closing |
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Seriatim
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In a series, one after another
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In extenso
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The entire document is required
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Methods of title assurance
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Warranties of title in deed, search of public records, and title insurance
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Recorder's indexes
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Contains two references to each recorded document. Both include:
Name of grantor Name of grantee Short form description of land affected Type of document Location in the records |
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Examples of Recorded Documents
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Federal, state, or county tax liens
Easements Deeds of trust Grant, quitclaim, or other deeds Mechanic's or materialmen's liens Judgments Revocable trusts involving land |
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Example of standard title search
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Point of search is to find out if client can purchase property from someone named Dubeck. You want to verify that the person selling the land actually owns the land
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Standard title search process
Start with Grantee Index |
Go backward in time in grantee index and forward in time in the grantor index to create chain of title that will lead to Dubek
Start with grantee index and search backwards - want to see how grantors obtained land as grantees After going through the chain to the original owner, move to grantor index to see if the land had been conveyed to any other people |
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Standard title search process
Second step |
Move forward in grantor index
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Issue of Priority
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Issue - priority between successive grantees of inconsistent conveyances
What happens if O sells to A first and then to B? |
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Resolving conflicting title claims - Rule
Issue of priority |
First in time, first in right
"Time" = when the deed is effective, which is almost always when the deed is deliver |
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Resolving conflicting title claims - major exception to rule
issue of priority |
Recording acts - notice and race-notice statutes
A claimant here would be second in time, question becomes whether the person who is second in time can become first in time based upon the jx's recording statute Recording statutes can make people who are 2nd in time be considered first in time, reverses the priority So, if your client was not first in time, then look for your jxs recording statute. First in time applies unless person who is 2nd in time qualifies under jxs recording statute |
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Resolving conflicting title claims - minor
exception |
Shelter Rule
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Persons Protected under the recording acts
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Always look to statute first
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Purchasers are always protected
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Protected bc they paid valuable consideration
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Lessees are always protected
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Even where statute does not include "lessee" purchaser includes lessees by judicial
construction |
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Creditors are sometimes protected
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If creditor is owed money, that is not enough
If creditor sued borrower and obtained a judgment, they they are protected |
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Donees and devisees are never protected
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Not protected because they did not pay valuable consideration
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Three types of notice
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Actual
Record Inquiry |
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Record notice
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Constructive record notice: from recorded
documents in the jx's chain of title |
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Constructive Inquiry notice
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People are charged with knowledge of what a reasonable inspection of the land would reveal
Ex: If B went to land and saw A not O, now Bs on constructive inquiry notice; must inquiry as to As presence; B would ask A what he is doing there and B would be on constructive inquiry notice |
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Idea of inquiry notice
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You are charged with what you'd find out if you did something and if you do not do it you're charged with it anyway - would have had notice if you'd done what you'd suppose to, so jx will say you have notice anyway
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What is "recorded?"
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Instruments that are not considered recorded (and thus do not provide notice):
- Document description is critical because when someone is conducting a property search, they only search for 1 specific plot. If the description is wrong, then the searcher would be looking for a completely different plot and would not find any records related to the property that they want to buy -Document with sign. errors in names or without acknowledgment |
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Title Insurance
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Insures title as shown by public record: "good record title"
Says that what land records show is correct and therefore we can describe as "good record title" that the title insurance will cover Accomplished by title companies using the tract index (more efficient than grantor-grantee index) and searching their own tract index records |
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Title Insurance
Covers title matters (and access) only |
Doesn't cover: physical condition of land or govt regulations ex: zoning
-Rationale: have to go out to look at land to uncover physical conditions and govt regulations, but that would be burdensome - Access: ALTA standard form policies (owner's policy of title insurance) |
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Title Insurance
Insures title only as of the policy date |
Policy date = date of closing
Only cover title defects that arise before date of closing Won't cover title defects that arise after date of closing |
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Title insurance companies can control their risk
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Numerous standard exclusions and exceptions apply:
- Things that require going to the property to find out -Insurance co will except recorded easements, from coverage - But, you can get extra insurance by buying endorsements - those give you extra coverage bc you pay more |
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ALTA Title Policy
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Standard exclusions (cannot be eliminated by endorsements)
Standard exceptions (can be eliminated by endorsements) ALTA Schedule B exceptions (can be eliminated by endorsements) Possible bases for Title Co. Liability |
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ALTA Title Policy
Standard Exclusions |
Losses arising from certain gov regulations (zoning)
Defects created by insured Defects not in public records but known to insured and not disclosed to the company |
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ALTA Title Policy
Standard Exceptions |
Claims not shown by public records but ascertainable by inspection of the land
Encroachments, boundary discrepancies, which an accurate survey would disclose Standard ones and variable exceptions |
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ALTA Schedule B exceptions
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Specific recorded easement
Specifically recorded CC&Rs |
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Possible bases for Title Co. Liability
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An insured loss under policy (on the K)
A negligent failure to disclose (in tort) Maj: title co has duty to accurately search the records and disclose matters (specific title defects) that would affect decision to close the purchase transaction |
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Private Land Use Controls
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These all involve non-possessory interests in land - interests in property, but not possessing property
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Easements Defined
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Interests in land that effect the way land is used
- A is given the right to enter upon B's land Limited interest in land of another (you cannot own an easement in your own property) |
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Easements
Non-possessory right |
Allows you to go on another's land but not
possess it Difference between easements and present possessory estates of a lesser quantum |
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Easement Example
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**Driveway on another's land
Allows owner of easement whose land is removed and has no access to the public street to use another's land to get that access Even if the owner of the land that's subj to the easement is also driving on that driveway, that person is not using an easement, but using their own land Can't own an easement in your own land Interest in someone else's land |
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Positive (or affirmative) Easement
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"Can do something"
Classic positive easement is a driveway; where the owner of the easement (holder of easement) has the right to go on someone else's land and perform some kind of act (driving car or walking back and forth) |
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Negative Easement
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"Cannot do something"
Allow the owner of the easement to prevent the owner of the adjacent property from doing something on their land Ex: have an ocean view; adjacent home does not block your view; at any time the owner could do something to block your view, like build a second story; you might go to that owner and buy their right to add a 2nd story; the easement would be the non-use of the airspace |
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Negative Easement Today
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Would not often use a negative easement for that purpose; would use a restriction, such as CC&R, to prohibit person from blocking view
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Appurtenant v. In Gross
Appurtenant Easement Definition/Example |
Positive appurtenant easement: most common
- Right which benefits the owner of the easement in the use of other land that they own -Attached to/associated to something else Ex: A buys easement across B's lot to get access to public road system; appurtenant easement bc benefits B in the use of his land; A's land is the servient parcel bc its burdened by the easement; Bs land is dominant |
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Dominant parcel v. Servient parcel
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Dominant parcel: easement owner
Servient parcel: owner of land where easement is located |
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Appurtenant Easements pass with dominant parcels
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Appurtenant easements pass with dominant parcel to any subsequent owner of the dominant parcel. If the dominant parcel is sold, an appurtenant easement will transfer to the new owner of the dominant parcel. If the servient parcel is sold, then the dominant parcel will continue to burden the servient parcel
Easement passes even if the easement is not mentioned in the deed likewise with the servient parcel, but the grantee must have notice |
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In gross Easement
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All other easements; does not directly benefit the owner of the easement in other land they own
Servient parcel (hike around forested area) but no dominant parcel bc not attached to land |
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Written Easements by Grant v. by Reservation
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Distinction is not meaningful even though phrases are still used
Either way it is conveyed must be promptly recorded |
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Written Easement by Grant
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Most common; deed; grant; straight out sale; grantor/grantee
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By Reservation Easement
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O owns Greenacre, builds blue house, and uses a dirt road for access; O subdivides Greenacre into two lots' sells Lot 1 and in the deed retains an easement to Lot 2; would include in deed that O reserves easement
- Can reserve in grant --Brown v. Lober reserved 2/3 of mineral rights (same thing by reserving easement) |
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Methods of Creation
Express easements (by written instrument) |
Most common
Must comply w/ SOF (signed by party bound, writing) Presumed to last indefinitely Policies justifying these easements: - Freedom to K, facilitate efficient land uses, & make productive use of land |
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Methods of Creation (Easements)
Willard v. First Church |
Subject property is lot 20.
Transaction: McGuigan -> Petersen ("subj. to an easement for parking"); Petersen -> Williard Petersen entered K with Willards to transfer lot 19 (which P owned) and lot 20 (which P did not own) |
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Methods of Creation (Easements)
Williard v. First Church Problem |
Express easement created in the deed to lot 20, McGuigan reserved an easement for the church
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Methods of Creation (Easements)
Williard v. First Church Rule |
Old CL Rule: cannot reserve an easement in a 3rd party (which is what McG did)
- Third party = party who is not a party to the conveyance so here, it is the church Modern trend: carry out the intent of the grantor Church's lawyer drafted a deed which reserved an easement in 3rd party - the lawyer committed malpractice altho he was let off |
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Methods of Creation (Easements)
Williard v. First Church What should have the lawyer for the church have done? |
Draft an express grant of the easement from McG to the church
Draft an express reservation in favor of grantor, this was permitted. Convey a fee simple to Petersen and if there is an easement that is reserved, it will be considered regranted to McG, the grantor (thus not reserving an easement in a 3rd party) In this case, there was an express reservation in favor of 3rd party which was not allowed |
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Methods of Creation (Easements)
Williard v. First Church How to avoid the CL rule? |
Method 1: reserve the easement in the grantor (regrant theory)
McG-> Church ->Petersen (Church to Petersen conveyance will reserve the easement in the Church) Method 2: directly grant an easement to the church McG->Petersen (fee simple), P->Church (grant easement for church) |
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Methods of Creation (Easements)
Williard v. First Church Easements reserved in a third party - Rules |
Maj. rule: cannot do it directly
Minority: Williard |
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Methods of Creation
License that becomes irrevocable (easements by estoppel) |
License: permission; here, permission to go on someone else's land
- can usually be revoked at any time Policy: equity; unfair to revoke after reliance & knowledge of the owner of the servient parcel |
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License that becomes irrevocable (easements by estoppel)
Majority Rule |
Where license includes right to erect buildings; license may not be revoked after substantial costs incurred by reliance on it (when a revocable lease becomes an irrevocable license)
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License that becomes irrevocable (easements by estoppel)
Oral agreement |
Oral agreement (express or implied) re-interest in land violates SOF, but estoppel is applied (an exception); reliance by the other party meant the other party cannot raise SOF defense
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License that becomes irrevocable (easements by estoppel)
Jxs that follow Maj rule for licenses |
Approach 1: presumed to last indefinitely like other easements
Approach 2: limited by how long it takes for owner of the easement to get the benefit of what created the easement - How long it would take for Holbrook to get benefit of the investment of $25K in building house (what created easement) - Difficult to judge; creates uncertainty |
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License that becomes irrevocable (easements by estoppel)
Created |
Begins as a license and if certain things happens acts as an easement
Created orally or in writing - Oral agreement re-interest in land violates SOF but estoppel is applied - Hence, an "easement by estoppel" (or an irrevocable license) exists |
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License that becomes irrevocable (easements by estoppel)
Holbrook v. Taylor Facts |
Taylors use road to build a house w/Holbrook's permission i.e. license, and knowledge Taylors were building a house. Taylors also fixed the road. Years later, H goes to T and says that he wants to put in writing and tells T he can buy easement for $500
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License that becomes irrevocable (easements by estoppel)
Holbrook v. Taylor Rule |
Maj Rule: Where license (express or implied) includes right to erect buildings, license may not be revoked after substantial costs incurred on reliance on it
H estopped from revoking license bc T spent money building house and fixing road T should have paid for the easement to save legal fees. Plus, ct may not have agreed that the license became irrevocable |
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Easements implied from prior existing use
Elements (4) |
An easement-like use by owner of part her land (a "quasi-easement use")
Use exists at time the parcel in one ownership is divided Use is apparent and continuous (very often, apparent and continuous means permanent, permanent change in line will satisfy "apparent and continuous" use Use is reasonably necessary to part of the land after division |
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Easements implied from prior existing use
Element 1: An easement - like use by owner of part of her land (a "quasi-easement use") |
Ex: utility lines, sewer lines
Not an easement bc one cannot have easement on one's own land Bailey owned all land and had sewer line build underneath, so this was easement like use, not a true easement bc it was on her own land |
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Easements implied from prior existing use
Element 2: Use exists at time the parcel in one ownership is divided |
Use exists when ownership is divided, not the lots themselves
Bailey divided the property into separate lots, and she used the sewer lines when she divided property into separate lots |
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Easements implied from prior existing use
Element 3: Use is apparent and continuous (very often, apparent and continuous means permanent, permanent change in line will satisfy "apparent and continuous" use) |
Can be an issue if it's underground (such as in Van Sandt where the sewer line was underground)
Apparent does not mean visible, just means you could find it if you investigated - Apparent in Van Sandt bc they connected to swere line when they bought the property (shows they had knowledge). The underground sewer line was apparent bc it could be determined Helps to tied into the recording system (some kind of notice is required to bind subsequent owners of the servient property) |
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Easements implied from prior existing use
Element 3 Continued: Use is apparent and continuous |
Continuous does not mean in use all the time, just means regular use
Use of sewer may not be continuous, but the sewer line was a permanent modification to the land |
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Easements implied from prior existing use
Policy |
Presumed intention of the parties
Permit uses to continue unless clear obligation Require these elements because it reflects the intention of the parties |
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Easements implied by necessity
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Only arises w/landlocked parcels of land, supposed to provide access to a landlocked parcel of land
Landlocked meaning there is no method of access from that land to the public street system w/o trespassing Easements implied by necessity do not require a prior existing use at time property is divided into different ownerships |
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Easements implied by necessity
Elements |
Parcel in one ownership is divided
Division results in landlocking Access is strictly necessary at the time of division Easement is located over the parcel that landlocked it |
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Easements implied by necessity
Policy |
Productive use of land; presumed intent of parties that grantor conveys everything necessary to use the land
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Easements implied by necessity
Scope of Easements - Basic Rule |
Scope depends on the intention of the parties in creating the easement, which is usually inferred from the type of easement and circumstances of its creation.
Parties are presumed to intent "reasonably expected" uses (could be reasonably expected new uses of the easement in the future) |
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Easements implied by necessity
Scope of Easements Situations Raising Issues of Scop |
Subdivision of dominant parcel - if there is a dom parcel, then we can infer that this is an appurtenant easement
Installation of utilities on a right-of-way easement - ex: cannot use a driveway for utility purposes since driveway is meant for access Change of location of express easement - cannot change location of an express easement unilaterally Extension to a non-dominant parcel |
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Easements Implied by necessity
Scope of Elements Situations raising issue of scope: Extension to a non-dominant parcel |
Owner of dominant parcel purchases non-dominant land adjacent to the dominant parcel
Majority - owner of dom parcel cannot use an appurtenant easement to extend that easement to a non-dominant parcel Minority - Brown v Voss - nominal damages allowed in ct's discretion |
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Easements Implied by necessity
Focus on intent of the parties in creating an easement |
Intention of parties can be inferred from the type of easement and the circumstances of its creation
Parties are presumed to intent "reasonably expected" uses |
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Easements implied by necessity
Terminating Easements Easements usually described as having a fee interest and release |
Easements usually described as having a fee interest - almost all easements are considered to continue indefinitely
Release -ex- written conveyance of the easement to the owner of the servient parcel - Owner of Lot 1 sells an easement (for ingress and egress) to owner of Lot 2; later the owner of Lot 1, you cannot own an easement in your own land |
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Easements implied by necessity
Terminating Easements |
Easements usually described as having a fee interest
Release Merger Expiration Easement from preexisting use Easement by necessity Abandonment of Easement Adverse possession of easement location by owner of servient parcel |
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Easements implied by necessity
Terminating Easements Abandonment of Easement |
Non-use plus an unequivocal intention to
relinquish the easement |
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Easements implied by necessity
Terminating Easements Merger |
When dominant and servient parcels come under the same ownership
Ex: when owner of lot 2 buys lot 2, the easement over lot 1 ends bc owner of lot 2 owns lot 1, you cannot own an easement in your own land |
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Easements implied by necessity
Terminating Easements Easement from preexisting use |
Continues indefinitely, even after necessity ends
Circumstances may change, but the basis for recognizing this easement shows that the parties intended the easement to continue indefinitely |
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Easements implied by necessity
Terminating Easements Easement by necessity |
Lasts only as long as necessary, if the easement is no longer necessary then the easement terminates
Ex: something occurs that allows legal access by the owner of the retained property. Easement ends as soon as the owner no longer needs the easement (i.e. when the owner gains legal right of access) |
