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26 Cards in this Set

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The last leg of the course
Misc ideas re: Sanborn a) Mixed use – allowing commercial and residential to exist side by side – e.g., gas station in suburbia. b) Judges granted the decision against the gas station on a technicality (1) But –
(a) maybe they should have pulled all the promises – clean up the mess (they will do this if the developer has put noxious promises on the land) (b) maybe they should have let life take its course c) Court said the building (gas station) need not be torn down, if it could be used for residential purposes.
6. Who can sue Van Dam? (b) In order to work, there must be?? \\ Snow v. Van Dam – 5. Facts – Summer home development w/beach at S. end. There is a marsh at the N. end. Lots were sold in 1907 to several buyers and marsh was thought to be no good. Van Dam builds 7-11 on marsh at entrance to subdivision in 1933. Plaintiffs are they buyers of the first lots a) O sells lots to buyers from 1907-23. Typical buyer Ks (1 family, $2500 minimum, no outdoor privy w/o permission). Then O sells marsh to Robert. Then O sells less nice lots to Richard. Robert conveys lot in marsh to Van Dam. (1) Van Dam made no promises. He is forced to keep promise that Robert made when he bought marsh from O.
6. Who can sue Van Dam? a) Richard and successors – Yes – running benefit b) First buyers of nice lots – 2 theories (1) Implied reciprocal servitude – Can’t do this, state won’t allow it – they are in a conservative Jx. (2) TP beneficiary – can do this if you can prove there was a plan - must be present from the beginning (a) Plan was present - Plaintiffs won \\\\\ (b) In order to work, there must be (i) Intent – to benefit whole subdivision (ii) Notice – it was trivial here, Van Dam took from Robert who made promise (3) Note that the court inferred the developer wished to have all the lots bound by the Ks. (in reality, is this so?) That is why its noteworthy the marsh was at the entrance to the tract (there was actually another way in) – this court manipulated facts and flexed its equitable muscle.
Notice – only need notice if the person you are seeking to burden is otherwise a ______ – a donee, devisee, or heir cannot escape an equitable servitude by saying that they had no notice. a) “First in time is first in right” – the equitable interest sinks its tentacles into the soil (1) Only things that can remove it are: _____, _____, _____ (i) Can only access these rules if you are a _____
7. Notice – only need notice if the person you are seeking to burden is otherwise a BFP – a donee, devisee, or heir cannot escape an equitable servitude by saying that they had no notice. a) “First in time is first in right” – the equitable interest sinks its tentacles into the soil (1) Only things that can remove it are: (a) Recording act (b) Subsequent legal interest in a BFP that follows a prior equitable interest (i) Can only access these rules if you are a BFP
Proper TP beneficiary a) Deed can make it _____ b) Courts can ____ TP beneficiary status (1) Most courts will not ___ TP beneficiary status to people outside of the plan.
8. Proper TP beneficiary a) Deed can make it express b) Courts can imply TP beneficiary status (1) Most courts will not imply TP beneficiary status to people outside of the plan.
How is this is a strange equitable servitude? What does the court look at? Neponsit v. Emigrant bank 9. Facts – Neponsit developer had a tract of land and conveyed lot FSA to buyer. They K (“assigns”) $4/yr for maintenance. Supposed to end in 1940 – not a perpetuity. Depression came, buyers lost land and bank got it. Now Neponsit homeowners assn is trying to get money from bank.
a) This is a strange equitable servitude – may be an equitable “charge” – analogize to ES. (1) The K to pay is an affirmative promise to pay money (2) If you were an activist judge who hated gated communities, you would kill this by saying they are missing one of the (FITNV) elements. (a) T and C would be the best one to attack. 10. This court looks at T and C – most flexible –where all our policy decisions reside. a) If a money promise is said to T and C, it the burdened land must be benefited. b) For burden of a money promise to run, the money must benefit the burdened land
Affirmative promises run in equity – cite ____ case for that proposition a) Attacking that proposition:______... b) Historical opposition to the idea that affirmative promises run in equity because ____... c) The doctrine of implied release is recognized here so ____...
11. Affirmative promises run in equity – cite this Neponsit v. Emigrant bank case for that proposition a) Attacking that proposition: (1) Money promise is easy to enforce – not much of a trial (2) This is not a pure equity case w/pure equity analysis – may be a law case where the court provides equitable relief (3) The remedy here is a lien, not injunction. b) Historical opposition to the idea that affirmative promises run in equity because they are hard to enforce – judges want to be obeyed. c) The doctrine of implied release is recognized here so the buyers are released from their promise when they sell B/A.
Why is the homeowners assn a proper P? in Neponsit v. Emigrant bank (3 theories – strongest first)
a) TP beneficiary – not the case here, not recognized in NY at this time – this would have worked b) Agent of homeowners – good, if the homeowners aren’t proper, who is? c) Piercing the corporate veil – who is behind the veil? The homeowners…they are proper P. (1) This court says TP theory isn’t necessary – we have these other 2.
Dumb rule court was trying to cope w/here – Neponsit v. Emigrant bank
in some Jx if the benefit is in gross, the burden doesn’t run – (the assn owned no land) a) Court uses the agent and piercing theories to get around this (1) Dumb rule because there are wholesome situations where you want the benefit to be in gross (a) Dumb rule is good sometimes: (i) Adherents to the rule are trying to restrict the use of covenants (ii) Rule makes it easier to trace owner of the benefit if you want to buy them out.
Examples of promises that T and C (list them):
a) Classics b) Activity on the land c) Land use d) Bigelow test e) Clark’s approach f) Fair and wholesome
Examples of promises that T and C a) Classics (2 types and descriptions?)
(1) LL/T context – promise to (a) Pay rent (b) Do repairs (c) Provide Services (d) Pay tax (2) FSA (a) One family only (b) Lot set back on street
Examples of promises that T and C b) Activity on the land – ______
b) Activity on the land – K not to sell drugs on B/A – in competition w/Rite Aid
Examples of promises that T and C --- c) Land use – _____
c) Land use – all buildings will be in Spanish Mission
Examples of promises that T and C ---- d) Bigelow test – ___ (1) Bundle of rights test – ____
d) Bigelow test – is there an effect on legal relations? (1) Bundle of rights test – has a stalk been removed – if so, it T and C – “no commercial activities”
Examples of promises that T and C --- e) Clark’s approach –
e) Clark’s approach – would a layperson be accepting of it (burden/benefit) and see it as intimately bound w/landowner status
Examples of promises that T and C --- f) Fair and wholesome –
f) Fair and wholesome – is it fair and wholesome? (1) At one time, everyone hated (b) – anti competition clauses – NOW we like them, fosters business – now they T and C but they didn’t used to. (a) T and C comes in many forms – what does and doesn’t can change over time.
O to TFY A. O makes A promise to keep the house ugly (hates his neighbors). \\\\ Is this binding? Would you put "this K touches and concerns"?
1. O to TFY A. O makes A promise to keep the house ugly (hates his neighbors). a) Not sure if that is binding – would a just society enforce that? b) Even if you put “this K touches and concerns”. Probably not. It is the judiciary’s power to say what T and C’s.
O to A promises to paint O’s portrait. (binding promise for A) a) A to B. \\\ Does B have to pay? (1) What about painting the portrait on the house?
2. O to A promises to paint O’s portrait. (binding promise for A) a) A to B. B does not have to pay – it passes no tests. No T and C (1) What about painting the portrait on the house? Still no, just coincidental that it seems to fit.
O to TFY A. A to B (B is T1). Apartment is in SF, Ts are artists. Portrait is in lieu of rent. a) This probably ___?
3. O to TFY A. A to B (B is T1). Apartment is in SF, Ts are artists. Portrait is in lieu of rent. a) This probably T and C’s – rent runs
Do money promises T and C?
4. Do money promises T and C? – normally not (must show the money is dedicated to the land) a) Rent – Yes – historical and necessary b) Taxes – Yes – it benefits the burdened land
O to FSA A. A promises to build house worth 250K. A to A1. a) Burden runs to ____...
5. O to FSA A. A promises to build house worth 250K. A to A1. a) Burden runs to A1 – T and C – it benefits the burdened land and it has to do w/land use
O to TFY T. T promises to pay rent and insure for 500K against fire. T to T1. Do the burdens run?
a) Rent – Yes. duh b) Insurance - NO (1) It does not T and C the land. The benefit goes to the policyholder when the house burns. They can take the money and run – does not benefit the land. (a) Could make it T and C by forcing T to use policy proceeds to fix land
Caulett v. Stanley Sidwell Inc. – Element of Form 8. P Caulett is buyer, D is developer Sidwell. P bought land from D for $4k. P got one acre of empty land. Covenant in deed that D reserved right to construct building and P promised to hire D to build. Said right in the deed, this K runs… P files suit to quiet title (if I sell, will buyer be bound) 9. As between P and D court never says if this promise would have been enforceable – this would be like buying a car and promising to get it fixed only at the dealership. a) Maybe they were bound, maybe not. \\\\ 0. We are dealing w/Form – was a K formed? 11. Assuming the promise is valid – does the burden of the promise run (if P sells the lot)?
10. We are dealing w/Form – was a K formed? a) Court never really answers that. 11. Assuming the promise is valid – does the burden of the promise run (if P sells the lot)? a) Court says NO. D does not have interest in the land. 2 mechanical explanations for courts decision (1) Benefit was in gross (personal to developer) (a) In NJ at that time, the benefit had to be appurtenant. (i) In some states, if the burden is to run, the benefit has to run as well. (ii) IN some states, if the benefit is in gross, the burden won’t run (a) This dumb rule has some benefits. Cuts down on running burdens. Guarantees that running system is only used for land schemes (b) Sometimes benefit of equitable servitude in gross is good. (i) Conservation easement – there might be wholesome situations where the benefit is in gross. (c) How to fix this? Make the servitude into an easement. Easements can be held in gross. (i) Wouldn’t work if the burden required action on the burdened land – kill invasive plants – it is a spurious easement (against the law) (a) Can't have an easement doing something on burdened land. (ii) Also can fix w/legislation (d) Developer can make benefit appurtenant – just needs to retain land in the subdivision. Transfer it to homeowners association. (i) In England they attach benefit to stuff other than land (developer’s business) – you can be a groundbreaker by convincing US court that maybe a certain element has outlived its usefulness if the time is right for change – otherwise, a court would dismiss.
Covenant didn’t T and C - Because
(a) Involves mere personal service on B/A – not directed to the improvement of the neighborhood (b) Courts aren’t interested in new arrangements w/o public benefit (i) Saying the benefit was in gross was overkill, they could have just said no T and C
Courts are usually pretty conservative w/r/t covenants. a) Law professors future of covenants is:
(1) All burdens will be allowed to run if there was notice and intent (2) If you need to lift a burden, do so openly and only when the market is dysfunctional.
Point? What did D argue? What did the Court say? Western Land - 13. Big subdivision divided and developer wanted to put commercial business on 3.5 acres he retained. The city had exploded around the subdivision. Homeowners didn’t want business there and sued developer over K to keep all lots to one family
Western Land - courts are still reluctant to lift burdens. 13. Big subdivision divided and developer wanted to put commercial business on 3.5 acres he retained. The city had exploded around the subdivision. Homeowners didn’t want business there and sued developer over K to keep all lots to one family a) D argued the city had changed – lots of businesses around the subdivision – some people living there had babysitting /barbershop b) Court said tough titties – we don’t care what happens outside of the subdivision. The covenant stands. It has not decayed