Property Law

Front 1

Property Rule

Back 1

Only the owner can sell the property. It cannot be sold without their consent, but the court can order money damages.

Front 2

Liability Rule

Back 2

Court can decide that the property should be sold, but there is payment given.

Front 3

Acquisition by Discovery

Back 3

Essentially, there can be acquisition by discovery and conquest in the past, but not now

Front 4

Johnson v. Macintosh

Back 4

Acquisition by Discovery
Indians and Court sold land to two parties. The court held that the person who got it from the Indians had no rights because the Indians had no rights.

Front 5

Acquisition by Capture

Back 5

Can be done by
1) occupancy or
2) ownership of the land the property is on

Front 6

{Acquisition by Capture}
Occupancy

Back 6

Need the following 3 things:
1) Intent to possess
2) Deprivation of the animal's natural liberty (harm it)
3) Bring it under "certain control"

Also, look to customs (Whaling case)

Front 7

{Acquisition by Find}
Types of property

Back 7

1) Abandoned property
2) Lost Property
3) Mislaid property

Front 8

{Acquisition by Find}
Abandoned property

Back 8

- Intentional relinquishment with no intent to reclaim.
- Finder acquires title

Front 9

{Acquisition by Find}
Lost

Back 9

- Didn't mean to leave the property somewhere.
- Finder has good title against everyone except rightful owner and any previous rightful finder

Front 10

{Acquisition by Find}
Mislaid Property

Back 10

- Left property somewhere with the intention to return and get it.
- Finder has good title against everyone except rightful owner and any previous rightful finders.

Front 11

{Acquisition by Find}
Rationale for Lost/Mislaid title

Back 11

1) Encourages finders to make productive use of finds rather than hide them.
2) Provide cheap and easy means of establishing presumptive title.

Front 12

Adverse Possession
(Rationale)

Back 12

1) makes sure good use of land is being made.
2) Quiets title
3) Increases alienability

Front 13

Elements of Adverse Possession

Back 13

1) Actual entry giving exclusive possession
2) Open and Notorious
3) Hostile
4) Continuous for the statutory period.

Front 14

{Adverse Possession}
Actual Entry

Back 14

- Have to actually physically take possession of the land in some way.
- Have to substantially enclose or use the land in the way the real owner would. (Van Valkenburgh)

Front 15

{Adverse Possession}
Van Valkenburgh v. Lutz

Back 15

- Held that an adverse possessor had to “Substantially enclose” or “usually cultivate or improve” the property.

Front 16

{Adverse Possession}
Claim of Title

Back 16

- Where there is no deed.

Front 17

{Adverse Possession}
Color of Title

Back 17

- Where there is a deed but it is defective (incorrect)

Front 18

{Adverse Possession}
Hostile

Back 18

- Must be in contravention of the Owner's own consent.

Front 19

{Adverse Possession}
Mistake(Hostile)

Back 19

Two views on this:
- Maine: Mistake is not good, you have to know it isn't yours.
- CT: Doesn't matter if you knew or not.

Front 20

{Adverse Possession}
Open and Notorious

Back 20

- The possession must be readily visible to any inspector of the property.
- The idea is that the owner would have notice of the possession.
- Another way to look at it is that it would be the type of occupation that a true owner would make.

Front 21

{Adverse Possession}
Boundry (Open and Notorious)

Back 21

- if something is not clearly and self-evident as an encroachment, then the limitations are not open and notorious until the owner has actual knowledge of the encroachment (Mannillo v. Gorski)

Front 22

{Adverse Possession}
Continuous

Back 22

- The amount of time that someone has to adversely possess the property.
- This will vary by jurisdiction

Front 23

{Adverse Possession}
Tacking (Continuous)

Back 23

- The amount of time that something has been possessed can be started before the person claiming possession started possessing.
- Must show:
a. Current person is using it in the same way that the person before was.
b. Deed in good faith from prior possessor the present possessor.
c. Privity

Front 24

Acquisition by Gift

Back 24

Requires:
1) Intent
2) Delivery

Front 25

{Acquisition by Gift}
Intent

Back 25

Can be derived by the following things:
1) Circumstances
2) Delivery
3) Writing

Note: There can be a present transfer of rights, where the grantor gets to keep enjoying it.

Front 26

{Acquisition by Gift}
Delivery

Back 26

Can be done:
1) Symbolic: A contract
2) Constructive: A key
3) Manual: The actual thing

Front 27

{Acquisition by Gift}
Symbolic Delivery

Back 27

- A contract or other document

Front 28

{Acquisition by Gift}
Constructive Delivery

Back 28

- A delivery that would in a part of the thing. E.g. a key.

Front 29

{Acquisition by Gift}
Manual Delivery

Back 29

- Giving the actual item.
- The traditional rule is that if an object can be manually delivered, then it must be.

Front 30

Causa Mortis

Back 30

- Gifts given in contemplation of death.
- Courts usually impose stricter requirements for these gifts because the person can’t say what their intention was after they are dead.

Front 31

Freehold Estate Types

Back 31

From best to worst
1) Fee Simple Absolute
2) Fee Tail
3) Fee Simple Defeasible
4) Life Estate

Front 32

Fee Simple Absolute

Back 32

- Best freehold estate
- Inheritable and Alienable
- Created by "and to his heirs"
- Usually "to A" will create this

Front 33

Fee Tail

Back 33

- Cannot be sold and is automatically inherited by the holders heirs
- Created ONLY by "to A and the heirs of his body"
- These don't really exist anymore.

Front 34

Fee Tail Categories

Back 34

Category 1: no fee tail, if someone tries to create a FT it will instead create a FSA.
Category 2: Like category 1, except there is one scenario where a fee tail will be created: “O  to A and the heirs of his body, then to B and her heirs.”
Category 3 (DE, ME, MA, RI): Fee simples can be created.

Front 35

Life Estates

Back 35

- Gives an interest for life.
- Not alienable or inheritable
- "To A for Life"
- Always accompanied by a future interest.

Front 36

Fee Simple Defeasible

Back 36

- Can sell or convey the property subject to restrictions.
- 3 types
1) Determinable
2) Subject to a condition subsequent
3) Subject to an executory interest

Front 37

{Fee Simple Defeasible}
Determinable

Back 37

- There is a condition to the property.
- If the condition is breached the interest AUTOMATICALLY ends.
- Created by "for so long as"
- Always accompanied by a future interest

Front 38

{Fee Simple Defeasible}
Subject to a condition subsequent

Back 38

- There is a condition to the interest
- If the condition is breached, the grantor has the OPTION to end the interest.
- Created by "but if", "if", "on condition that"

Front 39

{Fee Simple Defeasible}
Subject to an Executory interest

Back 39

Created when there is a Fee Simple Determinable that reverts to someone other than the grantor

Front 40

Future Interests

Back 40

- These are interests that exist in the future after the present interest is over.

Front 41

{Future Interests}
For Transferor (O)

Back 41

1) Reversion
2) Possibility of Reverter
3) Right of Entry

Front 42

{Future Interests}
Reversion

Back 42

- for Transferor
- The Transferor hasn't given away all of their interests
- Created when there is no vested Fee Simple.
- Alienable and decendable.

Front 43

{Future Interests}
Possibility of Reverter

Back 43

For transferor
- Created with a Fee Simple Determinable.
- Decendable
- Not all states allow it to be sold

Front 44

{Future Interests}
Right of Entry

Back 44

For Transferor
- Created when the transferor creates a Fee Simple Subject to a Condition Subsequent.

Front 45

{Future Interests}
For Transferee (A)

Back 45

- Remainder
- Vested
- Contingent
- Executory Interest

Front 46

{Future Interests}
Remainder

Back 46

For Transferee
1) Politely waits for the previous interest to terminate
2) Must be possible for the interest to be possessory at the moment the previous interest ends.

Front 47

{Future Interests}
Vested Remainder

Back 47

- It is clear who will get the interest
1) Given to an ascertained person
2) Not subject to a condition precedent

Front 48

{Future Interests}
Indefeasibly Vested Remainder

Back 48

Type of Vested Remainder
- It is clear who will get the interest, and no one else could get it.

Front 49

{Future Interests}
Vested Remainder Subject to Open

Back 49

Type of Vested Remainder
- Partial divestment
- The class of people who could get the interest is still open.
EX: "to B's Kids" because there could be more kids.

Front 50

{Future Interests}
Contingent Remainder

Back 50

- It is not clear who will get the interest.
- Exists where there:
1) Unascertained person OR
2) Subject to a condition precedent

Front 51

{Future Interests}
Executory Interest

Back 51

For Transferee (A)
- This is rude, it deals someone out of an interest that they are presently enjoying.

Front 52

{Future Interests}
Types of Executory Interest

Back 52

- Springing: Jumps over the arrow
- Shifting: Moves along one side of the arrow.

Front 53

Doctrine of Worthier Title

Back 53

- If O tries to give something to his own heirs, then it is void.
- EX: "O --> to A for life, then to O's heirs.
- Just cross out the "O's heirs" part

Front 54

Shelly Case Rule

Back 54

If:
- There is one instrument that is legal (assume it is legal)
1) creates a life estate in A,
2) Tries to create a fee simple or tail in "A's Heirs"
- Cross out A's Heirs and write: "A for life, then to A". Doctrine of Merger then turns this into a fee simple for A.

Front 55

Merger Doctrine

Back 55

- Transferee's lesser interest is merged into the greater interest.
1) Squishes out contingent interests between the life estate and the next vested fee simple.
2) Vested interests never get squished out.

Front 56

Types of Concurrent Interests

Back 56

1) Joint Tenancy
2) Tenancy by the Entirety
3) Tenancy in Common

Front 57

Joint Tenancy

Back 57

- 2 or more people own a single unified interest in real or personal property.
- Survivorship: yes
- Possession: Each tenant is entitled to occupy the entire premise subject to the same right in the other party.
Severance: may destroy at any time. Usually done through conveyance.

Front 58

Four Unities of Joint Tenancy

Back 58

- To create a JT the tenants must be equal in all of the following:
1) Time: recieve interest at the same time
2) Title: receive interest under the same instrument
3) Interest: Must have identical interest
4) Possession: Both must have the right to possess the whole property at creation (can be contracted around later)

Front 59

Severance of Joint Tenancy

Back 59

- Usually done by conveyance.
- If a JT conveys their interest to a third party, then the joint tenance is either:
1) Destroyed (if there are only 2 JTs)
2) Severed as to that part of the interest (if there are more than 2 JTs)

Front 60

Tenancy by the Entirety

Back 60

Love Tenancy
- Concurrent interest only created in husband and wife
- all four unities + marriage must be present
- Neither can defeat right of survivorship by sale
- End by divorce

Front 61

Tenancy in Common

Back 61

- There can be unequal shares.
- No right of survivorship
- Decendable
- Alienable

Front 62

{Concurrent relations}
Duty to Account

Back 62

- There is no duty to account if one party occupies the whole property, unless:
1) Ouster or
2) Depletion

Front 63

{Concurrent relations}
Ouster

Back 63

Where the occupying tenant refuses to permit the other tenant equal occupancy. They must pay the other party a share of their fair rental value.
Elements:
1) Prevents or physically bars entry by a cotenant: Change locks
2) Denies contenants claim to title: Must be express.

Front 64

{Concurrent relations}
Depletion

Back 64

- Duty to account for depletion

Front 65

{Concurrent relations}
Rents from Third Parties

Back 65

If one tenant receives rent from a third party they are obligated to share those rents with cotenants pursuant to the size of their share.

Front 66

{Concurrent relations}
Profits from the land

Back 66

Split according to the portion of ownership.

Front 67

{Concurrent relations}
Costs of Ownership (types)

Back 67

- Mortgage
- Taxes
- Repairs
- Improvements

- Implied Fiduciaries

Front 68

{Concurrent relations}
(Costs of Ownership)
Mortgage

Back 68

- Each cotenant is responsible for their share.
- Principal: Paying cotenant can enforce all of the rights of power of the morgagee against their contenant, including foreclosure.
- Interest: A cotenant that pays more than their share can force the other party to reimburse him for their share immediately, upon partition, or within the limitations period following the end of the cotenancy.

Front 69

{Concurrent relations}
(Costs of Ownership)
Taxes

Back 69

- Each cotenant is responsible for their proportional share.
- A cotenant that pays more than their share can recover whenever (subject to statutory limitations).

Front 70

{Concurrent relations}
(Costs of Ownership)
Repairs

Back 70

- There is no affirmative right for contribution for repairs.
- However, there are two ways that one party can recover for repairs from a cotenant:
1) Rent
2) Partition

Front 71

{Concurrent relations}
(Costs of Ownership)
Repairs (recovery)

Back 71

- Rent: From a third party or due to exclusive occupancy. The repairing cotenant may deduct from the rent due to the other party their share of the repair costs.
- Partition: Upon partition a repairing party is entitled to be reimbursed for the repair costs in excess of their share. Can be done by a larger portion or cash in physical partition, or cash in partition by sale.

Front 72

{Concurrent relations}
(Costs of Ownership)
Improvements

Back 72

- You can’t recover for improvements from a cotenant.
- if there is partitioning or liability for rent by the improving party, the cotenant can only recover for the VALUE ADDED not the actual cost of the improvement.

Front 73

{Concurrent relations}
(Costs of Ownership)
Implied Fiduciaries

Back 73

There are no implied fiduciary duties to each other.

Front 74

{Concurrent relations}
Adverse Possession

Back 74

- Almost impossible.
- Must give cotenants absolutely clear and unequivocal notice that they claim exclusive and sole title.

Front 75

Partition

Back 75

- A JT or TIC can demand at any time and for any reason.
- If not agreed ahead of time the court will do one of the following:
1) Physical Partition
2) Partition by Sale

Front 76

Physical Partition

Back 76

- Most common
- Will only not be done of a party can prove:
1) it is impossible or extremely impracticable
2) not in the best interest of ALL parties.

Front 77

Partition by Sale

Back 77

- Not favored by courts
- Net proceeds are divided among the co-owners in proportion to their interest.

Front 78

Agreements not to partition

Back 78

Must:
1) Clearly manifest parties intention not to partition
2) duration must be limited to a reasonable period of time

Front 79

Heirs

Back 79

- these exist when someone dies intestate.
- Order of heirs:
a. Spouse/issue (children)
b. Ancestors
c. Collateral (everyone else)

Front 80

Words of Limitation

Back 80

Tell the length of an interest

Front 81

Words of Purpose

Back 81

Tell who gets an interest

Front 82

Types of waste

Back 82

- Affirmative
- Permissive
- Ameliorative

Front 83

Affirmative Waste

Back 83

- Arises from voluntary acts
- Is hurtful

Front 84

Permissive Waste

Back 84

- Arises from a failure to act

Front 85

Ameliorative Waste

Back 85

- makes a property better (increases its property value), but changes the property in some material way.

Front 86

Lease Terms (types)

Back 86

1) Periodic Tenancy
2) Tenancy at will
3) Term of years
4) Tenancy at sufferance

Front 87

Periodic Tenancy

Back 87

- For a recurring period of time
- continues until either party gives advance notice of termination
- death of landlord does not end periodic tenancy

Front 88

{Periodic Tenancy}
Notice

Back 88

- Must be given in advance equal to the period but not more than six months.
- If notice is not given, then the party is obligated for another period

Front 89

Tenancy at Will

Back 89

- Tenancy with no fixed period. Ends whenever a party terminates it.
- If LL dies tenancy is over.
- Can be terminated by either party.
- If it is only terminable by one party then it is a determinable tenancy not a tenancy at will.

Front 90

Term of Years

Back 90

- A fixed term, clearly set out.
- There is no limit as to how long this can be except as limited by statute.
- It can be terminable.
- Death of landlord will not terminate a term of years.

Front 91

Tenancy at Sufferance

Back 91

- This is when a tenant stays after their leasehold interest has expired.
- It will last until one of two things happens within a reasonable time:
1) Eviction by LL
2) Binding the tenant to a new term

Front 92

{Tenancy at Sufferance}
Eviction (Remedy)

Back 92

- Allows for recovery of damages for the loss of possession by LL.
- Damages are measured by the fair market value (usually original rent, unless there is convincing evidence to the contrary) of the occupied premises, plus any special damages.

Front 93

{Tenancy at Sufferance}
Binding the tenant to a new term (Remedy)

Back 93

- Nature: Usually periodic tenancy
- Term: Differs. Most will use the original term, almost none allow it to be more than 1 year.
- Provisions: Usually the same as the old lease. If the LL elects to raise rent and T doesn’t object then the rent is raised.

Front 94

Sublease

Back 94

- When the leasee transfers anything less than their entire interest in the leasehold.
- If the subletter defaults the LL can terminate the lease.

Front 95

{Sublease}
Privity of estate

Back 95

exists btwn:
L and T1
T1 and T2
not btwn:
L and T2

Front 96

{Sublease}
Privity of Contract

Back 96

Exists btwn:
L and T1
T1 and T2
L is only a 3rd party beneficiary regarding his relationship with T2

Front 97

Privity of Estate

Back 97

- If you are in privity of estate, then you are obligated to perform all the duties of the covenants that "run with the estate"

Front 98

Privity of Estate

Back 98

????

Front 99

Assignment

Back 99

The transfer of the party's entire interest under the lease.

Front 100

{Assignment}
Privity of estate

Back 100

exists btwn Landlord and Assignee

Front 101

{Assignment}
Privity of Contract

Back 101

- Does not destroy the binding effect of a contract, unless there is relase and novation.
- Exists btwn
LL and T1
Not btwn:
LL and T2 unless there is consent by L to T2's assumption.

Front 102

{Assignment/Sublet}
Common Law (Creation)

Back 102

- If transfers the estate for the entire remainder it is an assignment
- If transfers the estate for anything less than the entire term it is a sublease
- Intent of parties is irrelevant

Front 103

{Assignment/Sublet}
Modern (creation)

Back 103

-Intent of the parties

Front 104

Tenant Duties

Back 104

- Pay Rent
- Avoid Waste
- Refrain from illegal use
- Honesty as to intended purpose
- Duty not to commit nuisance
- Express lease provisions

Front 105

{Tenant Duties}
Pay Rent

Back 105

- Common Law: Pay no matter what
- Modern: Dependent on the landlord's performance of their obligations.

Front 106

{Tenant Duties}
Waste Avoidance

Back 106

- The tenant must avoid permissive or involuntary waste, and keep premises in good condition
- Does not have an implied duty to make any major repairs

Front 107

{Tenant Duties}
Refrain From Illegal Use

Back 107

- LL knows about it: Lease is unenforceable
- LL doesn't know: Less enforceable

Front 108

{Tenant Duties}
Honesty as to intended purpose

Back 108

- Can't misrepresent what they intend to do with the lease.

Front 109

{Tenant Duties}
Duties From Express Lease Provisions

Back 109

- The tenant has to comply with any express provisions in the lease.

Front 110

{Tenant Duties}
Circumstances excusing tenant of obligation

Back 110

- Common Law: No excuses
- Modern:
- Sole use becomes illegal
- Destruction of property
- Frustration of intended purpose

Front 111

{Tenant Duties}
(Tenant obligation excuses)
Sole use becomes illegal

Back 111

- if there is a specific use bargained for that becomes illegal the tenant is excused.
- If the premises may reasonably be used for another purpose by the tenant, the tenant is NOT EXCUSED.

Front 112

{Tenant Duties}
(Tenant obligation excuses)
Destruction of Property

Back 112

- releases, unless due to tenant negligence or intentional misconduct.

Front 113

{Tenant Duties}
(Circumstances excusing)
Loss by Eminent Domain

Back 113

- a portion of the money given by the gov. goes to the tenant equal to the fair market value of the remainder of the leasehold minus the rent obligation for that period.

Front 114

{Tenant Duties}
(Circumstances excusing)
Frustration of Intended Purpose

Back 114

- Only for commercial leases
- Very common and difficult to prove.
- Must prove:
1) There is an extreme harship
2) Caused by 3rd party's unforeseeable actions (usually gov)
3) The intended purpose is mutually intended
4) Intended purpose is virtually impossible to accomplish

Front 115

Tenants Rights

Back 115

- Common Law
- Quiet Enjoyment
- Illegal Lease
- Implied Warranty of Habitability

Front 116

{Tenants Rights}
Common Law

Back 116

- Tenant takes property as is except for the following exceptions:
1) Breach of promise to repair
2) Negligent repairs
3) Non-disclosure of latent defects
4) Breach of duty to maintain common areas.
- Not applied today.

Front 117

{Tenants Rights}
Quiet Enjoyment

Back 117

- Common Law: Landlord just can't come on land and do stuff.
Modern: Can be breached by Actual or Constructive Eviction.

Front 118

{Tenants Rights}
(Quiet Enjoyment)
Actual Eviction

Back 118

Total: The tenant is totally ousted from physical possession of the leased premises OR
Partial: from any part of the premises.

Front 119

{Tenants Rights}
(Quiet Enjoyment)
Constructive Eviction

Back 119

- Things that are bad enough to be considered an eviction, without actual eviction.
- Must be done by landlord or their agent.
- Must be a SUBSTANTIAL INTERFERENCE: renders the premises substantially unsuitable for the purpose for which they are leased or which seriously interferes with the beneficial enjoyment of the premises

Front 120

{Tenants Rights}
Illegal Lease

Back 120

- Subject of the lease is illegal.
- could be illegal use of housing, or it could be a violation of housing codes.
a. The illegality must exist at the outset of the lease.
b. Must be major.

Front 121

{Tenants Rights}
Implied Warranty of Habitability

Back 121

- Premise must be fit for human habitation.
- Elements: very fact specific.
i.Clean
ii. Safe: Judged by housing code.
iii.Healthy
iv. Fit for human habitation
- Unwaivable.
- No duty to repair

Front 122

{Tenants Rights}
(Implied Warranty of Habitability)
Breach

Back 122

i. Landlord must know, or have reason to know (notify LL)
ii. Give them reasonable time to fix.

Front 123

{Tenant Remedies}
Common Law

Back 123

- Move out and get consequential damages

Front 124

{Tenant Remedies}
Quiet Enjoyment

Back 124

Classic: Vacate and no more liability for rent + recover damages caused by eviction
Modern: Squishier. May be able to stay and sue for the difference in rent BTWN the actual worth and the paid rent.

Front 125

{Tenant Remedies}
(Quiet Enjoyment)
Actual Eviction

Back 125

1. Total: Doesn’t have to pay rent.
2. Partial:
Traditional: no rent,
Academic: partial abatement of rent with option of termination or suit for damages.

Front 126

{Tenant Remedies}
Illegal Lease

Back 126

- Stay, and sue for the difference btwn the legal lease and what you have.

Front 127

{Tenant Remedies}
Implied Warranty of Habitability

Back 127

Differ among Jur.
- Stay and get damages
- Terminate and leave
- Stay and repair
- Stay and not pay rent
- Punitive damages

Front 128

{Tenant Remedies}
(Implied Warranty of Habitability)
Stay and Get Damages - Types

Back 128

- Value as warranted
- Value as-is
- Proportionate reduction

Front 129

{Tenant Remedies}
(Implied Warranty of Habitability)
Stay and Get Damages - Value as warranted

Back 129

difference btwn what you paid (premises as warranted) and how much the lease is actually worth in present condition plus damages for discomfort and annoyance (Hilder v. St. Peter)

Front 130

{Tenant Remedies}
(Implied Warranty of Habitability)
Stay and Get Damages - Value as-is

Back 130

difference between stated rent and actual fair value of the premises in their uninhabitable condition. (Kline v. Burns)

Front 131

{Tenant Remedies}
(Implied Warranty of Habitability)
Stay and Get Damages - Proportionate Reduction

Back 131

obligation is reduced to a percentage of stated rent: find the percentage value of the as is value as a percentage of the as warranted value, and then apply that value to the stated rent. (restatement)

Front 132

{Tenant Remedies}
(Implied Warranty of Habitability)
Terminate and Leave

Back 132

- leave, and recover damages
- usually relocation costs plus the excess of replacement rentals over the lease rentals for the balance of the term.

Front 133

{Tenant Remedies}
(Implied Warranty of Habitability)
Stay and Repair

Back 133

- Deduct a reasonable amount from the rent.

Front 134

{Tenant Remedies}
(Implied Warranty of Habitability)
Stay and Pay no Rent

Back 134

- breach of IWOH is a complete defense to eviction for a failure to pay rent

Front 135

Retaliatory Eviction

Back 135

- If the landlord evicts the tenant after they exercise their legal rights,
- LL has the burden of showing it was not retaliatory

Front 136

Discrimination

Back 136

- There are certain things that you can’t discriminate on when renting or selling property.
- Created by 14th amendment, then civil rights acts, and finally fair housing act.

Front 137

{Discrimination}
Included Classes

Back 137

1. Race
2. Religion
3. National origin
4. Family status
5. Handicap status
6. Gender

Front 138

{Discrimination}
Not Included Classes

Back 138

1. Martial status
2. Number of occupants
3. Threatening mental disability
4. Pets
5. Profession
6. Age
7. Sexual orientation

Front 139

{Discrimination}
How to Prove

Back 139

1. P has to make a prima facie case by showing that he is a member of a statutory class that he applied for and did not get an apartment that remained available.
2. D then has to show why he refused the apartment to the plaintiff.
3. P can still rebut this by showing evidence of discrimination (testimony, etc.)

Front 140

{Discrimination}
Advertising

Back 140

Can’t advertise your religion and other features that can be discriminatory

Front 141

Law of Nuisance

Back 141

no person may use their own land in an unreasonable manner that SUBSTANTIALLY LESSENS another person’s use and enjoyment of their land.

Front 142

Private Nuisance

Back 142

is a SUBSTANTIAL INTERFERENCE with private rights to use and enjoy land.
- Can be intentional or unintentional

Front 143

{Private Nuisance}
Substantial

Back 143

Would the nuisance would substantially impede the enjoyment of land for an AVERAGE PERSON.

Front 144

{Private Nuisance}
Intentional

Back 144

- The person knows that the activity is interfering with the other’s right to use and enjoy land.
- Must also be unreasonable.

Front 145

{Private Nuisance}
(Intentional)
Unreasonable

Back 145

- Does not mean a failure of due care.
- There are two different standards:
1) Restatement
2) Jost Threshold Test

Front 146

{Private Nuisance}
(Intentional)
Unreasonable - Restatement: Harm v Utility

Back 146

- Harm v social utiloty
1. Harm
a. Extent of the harm
b. Character of the harm
c. Suitability of the use to the location??
d. Burden of avoiding the harm
2. Social Utility
a. Social value of conduct
b. Suitability to the location
c. Practical difficulty of preventing the harm

Front 147

{Private Nuisance}
(Intentional)
Unreasonable - Jost Threshold Test

Back 147

If the conduct reaches a certain level of interference, then it is unreasonable regardless of the social utility. (Jost v. Dairyland Power Coop)

Front 148

{Private Nuisance}
(Intentional)
Unreasonable - Restatement: Uncompensated harm v. Ruinous Liability

Back 148

- If there is a serious harm and making D pay would not bankrupt him , he has to pay.
- Otherwise it is balanced by Harm v. Utility test.

Front 149

{Private Nuisance}
Unintentional

Back 149

Nuisance where conduct is:
1. Negligent; OR
2. Reckless; OR
3. Ultrahazardous

Front 150

Public Nuisance

Back 150

Inflicts nuisance on a large class of people.

Front 151

Covenants

Back 151

- Based in contract
- There is a Burden and Benefit
- Want to see if above "runs with land"
- Remedy here is money damages

Front 152

{Covenants}
Creation

Back 152

Must be:
1) Written
2) Signed by both parties
3) Party must have notice
- Can’t be created by estopple, prescription, etc.
- For Burden to run: Hp and VP
- For Benefit: VP

Front 153

{Covenants}
Horizontal Privity

Back 153

- Needed for the Burden and Benefit to run:
1. 2 original parties must have been parties to the covenant
2. The 2 parties must have a successive relationship: the land had to have been bought and sold by the original parties to each other.

Front 154

{Covenants}
Vertical Privity

Back 154

There must be Privity between the 1 of the original covenanting parties and the successor in interest (buyer)

Front 155

{Covenants}
Destruction

Back 155

1.Expressly in the deed
2.Changed conditions

Front 156

{Covenants}
(Destruction)
Changed Conditions

Back 156

- Almost impossible to show
1) Covenanted for character has been adversely affected.
2) Original purpose the covenant has been made has been thwarted.
i. Not a value vs. value test
ii. Must be entirely unsuitable for the original use in the covenant.

Front 157

{Covenants}
(Destruction)
Condemnation

Back 157

Eminent Domain action

Front 158

Equitable Servitudes

Back 158

Like a covenant.
- Remedy: Injunction
- burden and benefit to run:
1) Only need VP
2) Partied must intend promise to run
3) Successive parties must have actual or constructive notice (or inquiry in a Sanbourne jurisdiction)
4) Covenant must touch and concern the land

Front 159

{Equitable Servitude}
Creation

Back 159

- Written
- VP
- Intent by original parties
- Subsequent PURCHASER must have actual or constructive notice of the covenant
- Covenant must touch and concern the land (Ponzi): Not gross

Front 160

{Equitable Servitude}
Sanbourne Rule

Back 160

For creation of ES
a. Common owner (of 2 or more lots)
b. Parcing out land
c. Notice: Could be inquiry notice

Front 161

Inquiry Notice

Back 161

- You may have to ask if there are covenants running with the land.
- If everything in the neighborhood looks the same, you are likely on notice

Front 162

{Equitable Servitude}
Destruction

Back 162

Done through ABANDONMENT AND WAIVER:
- Must be widespread. (Rick v. West) -The violations in the neighborhood must be so general as to frustrate the entire purpose.
- Very hard to show.

Front 163

{Covenants}
3rd Restatement

Back 163

- Abolishes the distinction between covenants and ES, calling them both covenants that run with the land.
- Only cares about whether they are negative or affirmative
- Remedy: Inj or $ damages

Front 164

{Covenants}
(3rd Restatement)
Negative

Back 164

- Treats these like easements
- Run to all subsequents possessors and owners of the burdened and benefited parties

Front 165

{Covenants}
(3rd Restatement)
Affirmative

Back 165

- Run to people who succeed to people who have estates of the same duration as the original covenanting party.

Front 166

{Covenants}
(3rd Restatement)
Touch and Concern Test

Back 166

Must have something to do with the land.

Front 167

{Covenants}
(3rd Restatement)
Benefits in Gross

Back 167

This is ok as long as there is an escape hatch, where by if we can’t find the person who is supposed to be benefiting and it is impossible or impracticable to find the person benefiting.

Front 168

{Covenants}
(3rd Restatement)
Destruction

Back 168

- if it is no longer suitable, the court can say it has changed so much that you don’t have to enforce the covenant.

Front 169

{Nuisance}
Common Law test
(From BarBri)

Back 169

Actions must be:
1. Substantial
2. Non-trespassory invasion
3. Of another’s interest
4. Interferes with private use ands enjoyment of land
5. By any type of liability forming conduct

Front 170

Easement

Back 170

- A privilege to use the land of another.
- Can be negative or affirmative
- Appurtenant or in Gross

Front 171

Easement in Gross

Back 171

- These are for a specific person not for a landowner.
- EX: you can use my pool, fish in my pond, etc.

Front 172

(Easement in Gross)
Assignment

Back 172

- Only commercial easements
- All those with an interest hace to act together (Lutheran Case)

Front 173

{Easements}
Creation (Types)

Back 173

- Express
- Implied (prior Use)
- Necessity
- Prescription

Front 174

{Easements}
Express

Back 174

- Must be in writing.
Ways:
1) Reservation in grantor
2) Conveyance

Front 175

{Easements}
Implied

Back 175

An easement that is not in writing. there are 3 requirements:
1) There was a prior use
2) That use would be reasonably expected to continue
3) Notice

Front 176

{Easements}
Necessity

Back 176

- Landlocked easeents.
- Must have:
1) Common grantor - the land had to have been owned by the sae person at one time.
2) Necessity is there at the time of severance
3) It is strictly necessary (modern says substantial hardship)
4) courts will only imply for the seller (old timey)
Note: Only exists as long as the necessity does.

Front 177

{Easements}
Prescription

Back 177

Same elements as adverse possession:
1) Continuous
2) hostile
3) open and notorious
4) Actual

Front 178

{Easements}
Lost Grant

Back 178

- You just have to send a letter to show that you didn't "acquise" to prevent the easement.

Front 179

{Easements}
Non-Lost Grant

Back 179

- You have to effectively interrupt use to prevent the easement.

Front 180

{Easements}
Scope (types)

Back 180

1) Presault v. U.S. Rule
2) Traditional Rule
3) Restatement

Front 181

{Easements}
Presault v. U.S. Rule (Scope)

Back 181

- Can’t change the scope of an easement, you can only change it in a foreseeable manner (at the time of the easement), that is consistent with the terms of the original grant.  ex: like in character.

Front 182

{Easements}
Traditional Rule (Scope)

Back 182

- Traditional Rule: can’t change easement by servient or dominant tenement owner alone.
- They have to both agree

Front 183

{Easements}
Restatement (Scope)

Back 183

Servient owner can change location as long as it doesn’t significantly lessen the utility of the easement

Front 184

{Easements}
Termination

Back 184

1)Merge
2) Prescription- Interrupt for stat period
3) Deed
4) Abandon: Has to be more than non-use
Note: Foreclosure doesn't destroy.

Front 185

{Zoning}
Challenging

Back 185

Must either:
1) not affect the police power: Health, Safety, Welfare, or Morals.
2) be clearly ARBITRARY and UNREASONABLE.
- both are VERY HARD to prove.

Front 186

{Zoning}
Variance

Back 186

- Administrative permission to deviate from zoning ordinance. Run with the both.
Must show:
1) Undue Hardship
2) Doesn't frustrate the purpose or intent of ordinance

Front 187

{Zoning}
Undue Hardship (Variance)

Back 187

- Show that you can't do anything on the land.
- You are not entitled to have the property zoned for the most profitable use.
- Doesn’t include personal infirmity or hardship.
- Just because the property has changed hands does not negate undue hardship.

Front 188

{Zoning}
Frustration (Variance)

Back 188

- The board of adjustment are the care takers of this.
- The idea is that it wouldn’t undermine the whole ordinance.

Front 189

{Zoning}
Special Exceptions

Back 189

- specific exceptions to the ordinance, with specific conditions that are set out by the legislative body.
- In order for there to be special exceptions that are consitituional the legislature has to give SPECIFIC guidelines as to what can be excepted, otherwise it is an unconstitutional delegation of the police power.

Front 190

{Zoning}
Exclusionary Zoning

Back 190

- : to be valid there must be a rational relationship between the ordinance and advancing public health and safety.

Front 191

{Eminent Domain}
Constitutionality

Back 191

- Is it within the Police Powers?
Must be:
- A public interest
- Can't be arbitrary
1) rational basis test
2) Can't target specific people

Front 192

{Eminent Domain}
Taking

Back 192

3 Categories + Balance test
1) Permenant physical occupation- Always a taking
2) Nuisance control - Never a taking (rule 3 may mean it has to be a common law nuisance)
3) If the gov takes ALL (100%) economic beneficial or productive: Taking
Balance test:
1) Nature of government action
2) Economic impact on the claimant

Front 193

{Eminent Domain}
Squish Test (Taking)

Back 193

Nature of Gov Impact
1) Public benefit
2) How many people it affects
3) Broadness

Economic impact on claimant
1) Diminution in value
2) Investment backed expectations of claimant