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128 Cards in this Set
- Front
- Back
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Freehold Estate: Fee Simple Absolute
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"To A and his heirs."
"To A." Duration: Absolute ownership of potentially infinite duration. Transferability: Devisable, descendable, Alienable. Future Interest: None |
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Freehold Estate: Fee Tail
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"To A and the heirs of his body."
Duration: Lasts only as long as there are lineal blood descendants of grantee. Transferability: Passes automatically to grantee's lineal descendants. Future Interest: Reversion (if held by grantor); Remainder (if held by third party). (no longer recognized in most jurisdictions; instead becomes fee simple absolute) |
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Freehold Estate: The types of Defeasible Fees?
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1. Fee Simple Determinable
2. Fee Simple Subject to Condition Subsequent 3. Fee Simple Subject to an Executory Limitation |
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Freehold Estate: Fee Simple Determinable
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A Defeasible Fee
"To A so long as..." "To A until..." "To A while..." (Language providing that upon the happening of a stated event, the land is to revert to the grantor.) Duration: Potentially infinite, so long as event does not occur. Transferability: Alienable, Devisable, Descendible, Subject to Condition. Future Interest: Possibility of Reverter (held by grantor). FSDPOR Fee Simple Determinable Possibility Of Reverter Frank Sinatra Doesn't Prefer Orville Redenbacher |
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Freehold Estate: Fee Simple Subject to Condition Subsequent
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A Defeasible Fee
"To A, but if X event happens, grantor reserves the right to reenter and retake." Grantor must carve out right of reentry. Duration: Potentially infinite, so long as the condition is not breached and, thereafter, until the holder of the right of entry timely exercises the power of termination. Transferability: Alienable, devisable, descendable, subject to condition. Future Interest: Right of Entry / Power of Termination (held by grantor). |
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Freehold Estate: Fee Simple Subject to an Executory Limitation
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A Defeasible Fee
"To A, but if X event occurs, then to B." Duration: Potentially infinite, so long as stated contingency does not occur. Transferability: Alienable, devisable, descendable, subject to condition. Future Interest: Executory Interest (held by third party). |
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Freehold Estate: Life Estate
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"To A for life."
"To A for the life of B." Duration: Measured by life of transferee or by some other life (pur autre vie). Transferability: Alienable, devisable and descendible if pur autre vie and measuring life is still alive. Future Interest: Reversion (if held by grantor); Remainder (if held by third party). |
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Meaning of devisable?
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Can it pass by will.
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Meaning of descendible?
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Will pass by the statutes of intestacy if its holder dies intestate (without a will).
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Meaning of alienable?
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Transferable inter vivos, or during the holder's lifetime.
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Requirements of language used to create a defeasible fee?
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Courts will not find a defeasible fee unless clear durational language is used.
Words of mere desire, hope, or intention are insufficient to create a defeasible fee. Court disfavors restrictions on the free use of land. |
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Are there limits on the types of alienation restraints on defeasible fees?
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Absolute restraints on alienation are void.
An absolute restraint on alienation is an absolute ban on the power to sell or transfer, that is not linked to a reasonable limited purpose. |
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Life estates and the doctrine of waste?
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The life tenant is entitled to ordinary uses and profits from the land. The life tenant must not commit waste; must not hurt the future interest holders.
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Types of waste?
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1. Voluntary or affirmative waste.
2. Permissive waste or neglect. 3. Ameliorative Waste |
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Voluntary Waste or Affirmative Waste?
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Overt / affirmative conduct that causes a decrease in value.
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Life Tenant & Voluntary Waste and Natural Resources?
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Life tenant must not consume or exploit natural resources of the property (such as timber, oil) unless one of four exceptions applies:
(PURGE) 1. Prior Use a) life tenant may continue to exploit prior uses, unless otherwise agreed. b) Open Mines Doctrine: if mining was done on the land before the life estate began, life tenant can continue mining in the mines already open. Can't open any new mines. 2. Reasonable - life tenant may consumer natural resources for reasonable repairs and maintenance. 3. Granted - life tenant may exploit if granted 4. Exploitation - life tenant may exploit if exploitation is the only suitable purpose for the land |
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Permissive waste, or neglect?
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Occurs when the land is allowed to fall into disrepair.
a) Obligation to repair: life tenant must simply maintain the premises in reasonably good repair. b) Life tenant is obligated to pay all ordinary taxes on the land, to the extent of income or profits from the land. If there is no income or profit, the life tenant is required to pay all ordinary taxes to the extent of the premises fair rental value. |
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Ameliorative Waste?
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Life tenant must not engage in acts that will enhance the property's value, unless all future interest holders know and consent.
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Future Interests Retained by the Grantor
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1. Possibility of Reverter - accompanies only the FSD
2. Right of Entry / Power of Termination - accompanies only the FSSCS 3. Reversion - all other future interest retained by the Grantor |
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Future Interests in Transferees
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1. Vested Remainder
a) indefeasibly vested remainder b) vested remainder subject to complete defeasance c) vested remainder subject to open 2. Contingent Remainder 3. Executory Interest a) shifting executory interest b) springing executory interest |
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Remainders v. Executory Interests?
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Remainders always are accompanied by a preceding estate of known, fixed duration. Therefore, remainder can't accompany a defeasible fee - an Executory Interest accompanies a defeasible fee.
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Vested Remainders v. Contingent Remainders
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Vested Remainder:
1. created in an ascertained person AND 2. is not subject to any condition precedent Contingent Remainder: 1. created in an unascertained person OR 2. is subject to a condition precedent (or both) |
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Who are unascertained persons?
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"heirs" of a living person
B's first child if B has no children yet B's children who survive him |
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What is a condition precedent?
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A condition is a condition precedent when it appears BEFORE the language creating the remainder or is woven into the grant to reaminderman.
It hasn't happened yet - if it has happened then it is vested. To A for life, then, if B graduates from college, to B. If B has not graduated from college yet, then this is a contingent remainder. If B has graduated from college while A is still alive, it's a vested remainder. |
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The Rule of Destructibility of Contingent Remainders?
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Common Law: A contingent remainder was destroyed if it was still contingent at the time the preceding estate ended.
Today this rule has been abolished. |
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The Rule in Shelley's Case
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O conveys to A for life, then, on A's death, to A's heirs. A is alive.
The present and future interests merge giving a FSA. today, this rule has been virtually abolished so instead: A has life estate, A's yet unknown heirs have a contingent remainder, O has a reversion |
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The Doctrine of Worthier Title
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Still viable in most states.
O, who is alive, conveys to A for life, then to O's heirs. Under the law is interpreted as a life estate for A and O has a reversion. Doctrine of Worthier Title ignored if O expressly doesn't want it to apply. |
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Three types of vested remainders?
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1. Indefeasibly Vested Remainder
2. Vested Remainder Subject to Complete Defeasance 3. Vested Remainder Subject to Open |
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Indefeasibly Vested Remainder?
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The holder of the remainder is certain to acquire an estate with no conditions attached.
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Vested Remainder Subject to Complete Defeasance?
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Remainderman's right to possession could be cut short because of a condition subsequent.
Not a prerequisite for getting it, but something could take away once you have it. *The conditional language must appear AFTER the language creating the remainder. (if its before, its a contingent remainder) |
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Vested Remainder Subject to Open
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Remainder is vested in an open class - a group of takers, at least one of whom is qualified to take...and additional members can still join.
The class closes when any member can demand possession (This is the Rule of Convenience) Also! Someone who qualifies as a member of a class and then dies = their share goes to their devisees or heirs. |
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Executory Interest
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A future interest created in a third party (transferee).
Is not a remainder and takes effect by cutting short an interest in another person (shifting) or in the grantor or his heirs (springing). Shifting Executory Interest: Always follows a defeasible fee and cuts short someone other than grantor. Springing Executory Interest: Cuts short an interest in grantor. O conveys to A, if and when he marries. A has a springing executory interest. O has a Fee Simple Subject to A's Springing Executory Interest |
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Rule Against Perpetuities?
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Certain kinds of future interests are void if there is any possibility, however remote, that the given interest may vest more than 21 years after the death of a measuring life.
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What types of future interests does RAP apply to?
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RAP only potentially applies to:
a) contingent remainders b) executory interests c) vested remainders subject to open Does not apply to future remainders in grantor! |
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4-Step technique for assessing whether there is a Rule Against Perpetuities?
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1. Determine which FUTURE INTERESTS have been created by the conveyance.
2. Identify the CONDITIONS PRECEDENT to the vesting of the suspect future interest. (What has to happen for the future holder to take?) 3. Find a MEASURING LIFE. A person alive at the date of the conveyance and ask whether that person's life or death is relevant to the condition's occurrence. 4. Will we know w/ CERTAINTY w/in 21 YEARS of the death of the measuring life if the future interest holder(s) can or can't take? If so, the conveyance is good. |
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The two bright line RAP rules?
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1. A gift to an open class that is conditioned on the members surviving to an age beyond 21 violates common law RAP.
2. Many shifting executory interests violate RAP. An executory interest with no limit on the time within which it must vest violates the RAP. *The conveyance must make grammatical sense after the violative future interest is stricken - if not, strike the entire conditional clause. |
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Exception to RAP?
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A gift from one charity to another will not violate RAP.
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Reforms to Common Law RAP?
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1. Wait and See or Second Look doctrine: the validity of any suspect future interest is determined on the basis of teh facts as they exist at the end of the measuring life.
2. Uniform Statutory Rule Against Perpetuities - codifies common law RAP and additional provides for a 90 year vesting period 3. Both the Wait and See and USRAP reforms embrace: a) if a given disposition violates the RAP, a court may reform it in a way that most closely matches grantor's intent while still complying with RAP b) reduction of any age contingency to 21 years |
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Types of Concurrent Estates?
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1. Joint Tenancy
2. Tenancy by the Entirety 3. Tenancy in Common |
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Joint Tenancy?
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2+ own w/ the right of survivorsihp:
1. when 1 joint tenant dies, his share goes to the surviving joint tenants automatically 2. a joint tenant's interest is alienable but not divisible or descendible |
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Creation of a Joint Tenancy?
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(the 4 unities) Joint tenants must take their interest:
1. unity of TIME 2. unity of TITLE 3. unity of interest (IDENTICAL interest) and 4. unity of POSSESSION In addition, grantor must clearly express the right of survivorship. *To create a joint tenancy from a property you already own, you must use a straw man. |
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Ways a Joint Tenancy can be severed?
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SPAM - SALE, PARTITION, AND MORTGAGE
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Joint Tenancy - Severance and SALE?
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Sale: a joint tenant can sell or transfer her interest during her lifetime. Buyer is a tenant in common. If more than 1 original owner remain, they are still joint tenants with each other.
Doctrine of equitable conversion - The mere act of entering into a k for the sale of a share of a joint tenancy automatically severs the joint tenancy as to the contracting party's interest. |
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Joint Tenancy - Severance and PARTITION?
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Three methods:
1. voluntary agreement 2. partition in kind (a court action for physical division, if in the best interest of all) 3. forced sale: a ct. action if in the best interest of all where property is sold and the proceeds are divided proportionally |
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Joint Tenancy - Severance AND MORTGAGE?
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Minority Rule: 1 joint tenant's execution of a mortgage or lien on his or her share will sever the joint tenancy as to that share
Majority Rule: The Lien Theory of Mortgages, where a joint tenant's execution of a mortgage on his interest will not sever the joint tenancy |
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Tenancy by the Entirety - definition?
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(Recognized in 21 states)
Created between married partners with right of survivorship (arises presumptively between married people) Creditors of only 1 spouse can't take. Neither party acting alone can defeat the right of survivorship by unilateral conveyance to a third party. |
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Tenancy in Common
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Each co-tenant owns an individual part and each has a right to possess the whole.
Each interst is descendible, divisible, and alienable. There are no survivorship rights. |
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Rights and Duties of Co-Tenants (Co-owners):
Possession? |
Each co-tenant is entitled to possess the whole.
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Co-Tenants - WRONGFUL OUSTER?
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If one co-tenant wrongfully excludes another from possession of the whole or any part, he has committed WRONGFUL OUSTER.
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Absent ouster, a co-tenant in exclusive possession...?
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Is not liable to the others for rent.
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What happens with the rent from third parties between co-tenants?
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If all or part of premises leased to a third party, the leasing co-tenant must account to his co-tenants - must give them their fair share.
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Adverse possession between co-tenants?
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Unless one co-tenants has ousted the others, one co-tenant in exclusive possession for the statutory adverse possesion period cannot acquire title to the exclusion of the others because the hostile element of adverse possession is missing.
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Carrying Costs between co-tenants?
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Each must pay his or her fair share of costs (taxes, mortgages, etc.)
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Costs of repairs between co-tenants?
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A repairing co-tenant has a right to contribution from the others, provided they have told the other co-tenants of the need for the repair.
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Effect of improvements by one tenant?
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No right to contribution from others.
However, at partition, the improving co-tenant is entitled to a credit equal to any increase in value due to the improvement. Additionally, the 'improver' bears the full liability for any decrease in value due to her efforts. |
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Waste and co-tenants?
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A co-tenant must not commit waste.
A co-tenant can bring a waste action during the life of the co-tenancy against another co-tenant. |
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Partition and co-tenants?
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A joint tenant has a right to bring and action for partition.
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Types of Leasehold (Nonfreehold) estates?
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1. Tenancy for Years
2. Periodic Tenancy 3. Tenancy at Will 4. Tenancy at Sufferance |
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Tenancy for Years (Term of Years)?
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A lease for a fixed period of time (the termination date is known from the start).
No notice is needed to terminate *A term of years greater than one year must be in writing to be enforceable (Statute of Frauds). |
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Periodic Tenancy?
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A lease that continues for successive intervals until lessor or tenant gives proper notice of termination.
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How to create a periodic tenancy?
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1. Expressly
2. by Implication a) land is leased w/ no mention of duration, but provision is made for the payment of rent at set intervals b) oral term of years in violation of the statute of frauds creates an implied periodic tenancy measured by the way rent is tendered once the first rent payment is made c) Holdover: in a residential lease, if lessor elects to holdover a tenant who has wrongfully stayed on past the conclusion of the original lease an implied periodic lease arises measured by the way rent is now tendered |
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How to terminate a periodic tenancy?
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Notice, usually in writing, must be given.
At common law: notice must be given in advance at least equal to the length of the period itself. The lease must end at the end of a period (like last day of the month). Exception: if the tenancy is from year-to-year or greater than notice need only be 6 months. Parties may lengthen or shorten notice by private agreement. |
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Tenancy at Will
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No fixed duration.
Unless the parties expressly agree to a tenancy at will, the payment or regular rent will cause ct. to interpret as an implied Periodic Tenancy. |
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How to terminate Tenancy at Will?
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By either party at anytime. However, a reasonable demand to vacate is typically required.
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Tenancy at Sufferance?
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Created when tenant wrongfully holds over past the expiration of a lease.
Wrongdoer gets a leasehold estate and lessor gets to collect rent. Lasts until either lessor evicts tenant or elects to hold tenant to a new tenancy. |
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What are tenant's duties?
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1. tenant's liability to third parties
2. tenant's duty to repair 3. tenant's duty to pay rent |
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What are tenant's liabilities to third parties?
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(tort law principle)
Tenant is responsible for keeping the premises in reasonably good repair. Tenants are liable for injuries sustained by third parties tenant invited even where landlord expressly promised to make all repairs. |
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What are tenant's duties to repair when the lease is silent?
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1. Tenant must maintain the premises and make ordinary repairs.
2. Tenant must not commit waste (voluntary, permissive, ameliorative) 3. Tenant must not remove fixtures, no matter that she installed it. |
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What is a fixture?
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A chattel that by virtue of its annexation to realty:
objectively shows the intent to permanently improve the realty. |
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When does a tenant installation qualify as a fixture?
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1. Express agreements control.
2. Tenant may remove a chattel she installed if it does not cause substantial harm to the premises. |
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T's duty to repair when T has expressly covenanted in the lease to maintain the property in good condition for the duration of the lease?
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Common law: T responsible for any loss to the property including loss due to force of nature.
Majority View Today: T may terminate the lease if the premises are destroyed w/out T's fault. |
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T's duty to pay rent: what if T breaches this duty and is in possession of the premises?
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Landlord may:
-evict through the courts (still entitled to rent until tenant at sufferance vacates) Landlord must not engage in self help (like changing the locks, etc.) - it is punishable both civilly and criminally. -continue the relationship & sue for rent |
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T's duty to pay rent: T breaches this duty but is out of possession.
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Lessor may...
1. treat T's abandonment as surrender (if the unexpired term is greater than 1 year, surrender must be in writing because of SOF) 2. ignore the abandonment and hold T responsible for the unpaid rent (only avail. in a minority of states) 3. Mitigation: Re-let the premises on the wrongdoer tenant's behalf and hold him liable for any deficiency (majority rule) |
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Landlord's Duties
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1. Duty to deliver possession
2. Implied Covenant of Quiet Enjoyment 3. Implied Warranty of Habitability |
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Landlord's duty to deliver possession?
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The majority rule required that L put T in physical possession of the premises.
If at start of T's lease a prior holdover is still in possession, L has breached and the new T gets damages. (Minority rule / American rule only requires L put T in legal possession) |
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Landlord's Duty: implied covenant of quiet enjoyment?
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Applies to residential and commercial leases.
T has a right to quiet use and enjoyment of the premises w/out interference from L. 1. Breach by actual wrongful eviction (when L excludes T from the premises or wrongfully evicts T) 2. Breach by constructive eviction - a claim for constructive eviction if: a) Substantial Interference (due to L's actions or failure to act) b) Notice - T must notify L of the problem and L must fail to act meaningfully c) Vacate - T must vacate after L fails to fix the problem |
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Quiet Enjoyment: is landlord liable for acts of other tenants on premises?
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Generally, no.
Exceptions: 1. L must no permit a nuisance on the premises 2. Landlord must control all common areas |
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Landlord's Duty: The implied warranty of habitability
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1. Applies only to residential leases.
2. Is nonwaivable. 3. Premises must be fit for basic human habitation (standard might be local housing code or judicial conclusion...) If warranty of habitability is breached, T may: move, repair, reduce, or remain 1. Move out and terminate the lease 2. Repair and deduct (allowed in some jurisdictions) 3. Reduce Rent (or withhold) until ct. determines fair rental value - typically T must put the rent into escrow to show good faith 4. Remain in Possession (pay rent and seek money damages) |
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Retaliatory Eviction?
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If T lawfully reports L for housing code violations, L is barred from penalizing T by raising rent, ending the lease, etc.
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Assignment or Sublease when no prohibition in the lease?
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T may freely transfer his or her interest in whole (assignment) or in part (sublease).
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May L prohibit Assignment or Sublease?
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In lease, L can prohibit T from assigning or subletting w/out L's prior written approval. However, once L consents to one transfer by T, L waives the right to object to future transfers by that T, unless L expressly reserves the right.
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T1 has 10 months remaining on a 2 year term of years. T1 transfers all 10 months to T2. This is? Relationship between L and T2? T1?
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An assignment.
L and T2 are in privety of estate. They are liable to each other for all of the covenants in the original lease that run with the land. L and T2 are not in privety of contract unless T2 expressly assumed all promises in the original lease. L and T1 are no longer in privety of estate. However they remain in privety of contract. Thus L and T1 are secondarily liable to each other. |
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In a sublease, relationship between L and T2? T1?
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L and sublesee are in neither privety of estate nor privety of contract. L's relationship with T1 remains the same.
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The common law of caveat lessee?
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In common law torts, L was under no duty to make the premises safe
Exceptions: 1. Common areas 2. Latent defects (L must warn T of hidden defects of which L has knowledge or reason to know) 3. Assumption of repairs (if voluntarily makes repairs, L must complete them w/ care) 4. Public use rule: L who leases public space (like conv. ctr.) and who should know, because of the nature of the defect and length of the lease, that T will not repair is liable for any defects on premises. 5. Short term lease of furnished dwelling - L is responsible for any defect that harms T. |
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Types of Servitudes?
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1. Affirmative Easements
2. Negative Easements 3. Real Covenants 4. Equitable Servitudes 5. Reciprocal Negative Servitudes |
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Easements - definition?
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The grant of a nonpossessory property interest that entitles its holder to some form of use or enjoyment of another's land, called the servient tenement.
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Easements - affirmative v. negative?
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Affirmative easement = the right to do something on servient land.
Negative easement = entitles holder to prevent the servient easement from doing something that would otherwise be permissible. |
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Recognized categories of negative easements?
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1. Light
2. Air 3. Support 4. Streamwater from an artificial flow (some states also recognize Scenic View) |
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Negative Easements:
How Crated? |
Negative easements can only be created expressly, by writing signed by the grantor.
There is no natural or automatic right to a negative easement. |
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Easement appurtenant to land?
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Easement is appurtenant when it benefits its holder in his physical use or enjoyment of his property.
It takes two parcels of land: 1. a dominant tenement which derives the benefit 2. a servient tenement which bears the burden |
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Easement in gross?
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Confers upon its holder only some personal or pecuniary advantage that is not related to his use or enjoyment of his land.
Only takes one parcel of land. (right to place a billboard, fish from someone's pond, place power lines) |
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Transferability of easements?
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Appurtenant easement passes automatically with the dominant tenement (regardless of whether transfer is mentioned in the conveyance).
*Burden of the easement appurtenant also passes automatically with the servient estate, unless the new owner is a bona fide purchaser without notice. An easement in gross is not transferable unless it is for commercial purposes. |
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Easements:
Methods of Creation? |
PING
1. Prescription 2. Implication 3. Necessity 4. Grant |
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Creation of an easement by grant?
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1. A grant is a writing signed by grantor.
2. A grant is required for easements lasting longer than a year because of SOF. 3. Called a deed of easement; must comply with formal elements in a deed. |
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Creation of an easement by implication?
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a/k/a Easement Implied from an Existing Use
A court may imply an easement where: 1. the previous use was apparent 2. the parties expected the use would survive division becaues it is reasonably necessary to the dominant land's use and enjoyment |
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Creation of an easement by necessity?
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The landlocked setting.
An easement of right of way will be implied by necessity if grantor conveys a portion of his land w/ no way out except over some part of his remaining land. |
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Creation of an easement by prescription?
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Easement by prescription created by satisfying the elements of adverse possession (COAH):
1. CONTINUOUS use for the statutory period 2. OPEN & notorious use (actual) 3. EXCLUSIVE use 4. HOSTILE use (meaning w/out the consent of the servient owner) *Permission defeats acquisition of an easement by prescription. (No hostility then) |
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How is the scope of an easement determined?
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The terms of the grant or the conditions that created the easement.
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Unilateral expansion of an easement?
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Not allowed.
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Methods of Terminating an Easement?
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END CRAMP
1. Estoppel 2. Necessity 3. Destruction 4. Condemnation 5. Release 6. Abandonment 7. Merger 8. Prescription |
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Methods of Terminating an Easement:
Estoppel? |
The servient owner materially changes his or her position in reasonable reliance on the easement holder's assurances that the easement will not be enforced.
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Methods of Terminating an Easement:
Necessity? |
Easements created by necessity expire as soon as the need ends.
However, is the easement, attributable to necessity, was nonetheless created by express grant it will not end automatically once the need ends. |
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Methods of Terminating an Easement:
Destruction? |
Destruction of the servient land, other than through the willful conduct of the servient owner will end the easement.
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Methods of Terminating an Easement:
Condemnation? |
Condemnation of the servient estate by eminent domain will terminate an easement.
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Methods of Terminating an Easement:
Release? |
A written release, given by the easement holder to the servient owner.
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Methods of Terminating an Easement:
Abandonment? |
The easement holder must demonstrate by physical action the intent to never use the easement again.
Mere nonuse or words are insufficient to terminate by abandonment. |
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Methods of Terminating an Easement:
Merger? |
a/k/a unity of ownership
Easement is extinguished when title to the easement and title to the servient land become vested in the same person. (A later separation of title will not revive the easement automatically.) |
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Methods of Terminating an Easement:
Prescription? |
The servient owner may extinguish the easement by interfering with it in accordance with the elements of adverse possession (COAH):
1. Continuous for the statutory period 2. Open and notorious 3. Actual 4. Hostile to the easement holder |
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Definition of a license?
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A mere privilege to enter another's land for some delineated purpose.
are not subject to the SOF (don't need a writing to create). Is freely revocable at the will of the licensor, unless estoppel bars revocation. (tickets create freely revocable licenses) |
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Oral Easement - Neighbors talking by the fence?
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'You can have a right of way across my land" creates a freely revocable license.
(unenforceable easement because it violates the SOF) |
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When will estoppel apply to bar revocation of a license?
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Only when licensee has invested substantial money or labor or both in reasonable reliance on the license's continuation.
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Definition of a Profit?
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entitles its holder to enter the servient land and take from it. (for example minerals, the soil, etc)
shares all the rules of easements. |
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Definition of a Covenent?
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A promise to do or not to do something related to land. It is unlike an easement because it is a contractual limitation or promise regarding land - NOT a grant of a property interest.
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Types of Covenants?
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1. Restrictive Covenants (negative) - a promise to refrain from doing something related to land.
2. Affirmative Covenants - a promise to do something related to land. |
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How to tell whether it is a promise or an equitable servitude?
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On the basis of the remedy plaintiff seeks.
Money damages = covenant, Injunction = equitable servitude |
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When will a covenant run with the land?
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Burden must run and benefit must run. Analyze Burden first (it's harder for burden to run).
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Does the burden run with the land?
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1. WRITING - the original promise had to be in writing
2. INTENT - the original parties intended the burden would run (courts are generous in finding this) 3. TOUCH and concern the land - the promise must affect the parties' legal relations as land owners and not simply as members of the community at large (homeowner's fees and covenants not to compete DO touch and concern the land) 4. HORIZONTAL AND VERTICAL PRIVITY - are both needed for the burden to run (difficult to establish). Requires the parties be in succession of estate, meaning that they were in a landlord-tenant or grantor-grantee or mortgagor-mortgagee relationship. Vertical privity requires some non-hostile nexus (only adverse possession won't be vertical privity). 5. NOTICE - the new purchaser of the burdened parcel had notice of the promise when she took |
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Does the benefit run with the land?
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1. WRITING
2. INTENT - original parties intended benefit would run 3. TOUCH AND CONCERN 4. VERTICAL PRIVITY (non hostile nexus) (horizontal privity and notice not requied) |
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Definition of Equitable Servitudes
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The equitable servitude is a promise that equity will enforce against successors. It is accompanied by injunctive relief.
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How to create an equitable servitude?
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1. WRITING (generally, but not always)
2. INTENT (the parties intended the promise would bind successors) 3. TOUCH AND CONCERN - promise affects the parties as landowners 4. NOTICE (the successors of the burdened land had notice of the promise) |
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Equitable Servitudes: is privity required to bind successors?
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no!
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Equitable servitude fact pattern?
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A owns a large parcel of land. Breaks the land into 50 lots. Sells the first 45 lots with deeds restricted to residential use. Sells lot 46 w/out the deed restriction to a business that wants to build a convenience store.
Neighbors sue to enjoin under equitable servitude. |
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Implied equitable servitude?
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a/k/a the General Scheme Doctrine
a/k/a the Common Scheme Doctrine Under this doctrine, the court will imply a reciprocal negative servitude to hold the unrestricted lot holder to the restrictive covenant. Two elements: 1. When the sales began, the subdivider had a general scheme of residential development which included defendant's lot and 2. Defendant lotholder had notice of the promise contained in the prior deeds. |
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What forms of notice can be imputed to a defendant in an implied equitable servitude case?
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1. ACTUAL NOTICE - D had literal knowledge of the promise in the prior deeds
2. INQUIRY NOTICE - the neighborhood conforms to the common restriction 3. RECORD NOTICE - the form of notice sometimes imputed to buyers on the basis of the publicly recorded documents (courts are split on this, the better view is against it) |
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Equitable defense to enforcement of an equitable servitude?
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1. Changed Condition - must be so pervasive that the entire area has changed (mere pockets of limited change never good enough)
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Adverse Possession
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Possession for a statutorily prescribed period of time can, if certain elements are met, ripen into title.
COAH Continuous - uninterrupted for the given stat. period Open and Notorious - the sort of possession that the usual owner would make of the land Actual - literal, actual entry Hostile - Possessor doesn't have owner's consent to be there. |
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Adverse Possession and Tacking?
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One adverse possessor may tack on to his time with the land his predecessor's time, so long as there is privety which is satisfied by any non-hostile nexus such as blood, contract, deed, will.
*Tacking not allowed when there has been ouster. |
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Adverse Possession and Disabilities?
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SOL will not run against a true owner who is aflicted by a disability at the start of possession. (insanity, infancy, imprisonment)
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