Real Property For Bar

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Present estates

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fee simple absolute; fee tail, defeasible fees (3 types); life estate.
• 3 main questions:
○ What language creates estate
○ Is it devisable (pass by will), descendible (by intestacy), alienable (transferrable inter vivos).
○ Which future interest is it capable of?

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Fee simple

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○ Language: "to a" or "to A and his heirs"--and his heirs are not required, so "to A" suffices
○ Transferrable: absolute ownership of potentially infinite duration. Freely devisable, descendible and alienable.
○ Future interest: no accompanying future interest. Living person has no heirs, only prospective heirs, who are powerless.

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Fee tail

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○ Language : to A and heirs of his body
○ Transferrable: virtually abolished in U.S. including NY. Would pass to lineal blood descendents not matter what. Attempted creation of fee tail creates fee simple absolute
○ Future interest: reversion for grantor, in third party someone other than O remainder

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1. Fee Simple Determinable (NY Terminology: Fee on Limitation)

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1. Fee Simple Determinable (NY Terminology: Fee on Limitation)
○ Language: “To A for so long as…”; “To A during…”; “To A until…”
§ Grantor must use clear durational language.
§ If the condition is violated, forfeiture is automatic.
○ Characteristics: Devisable, descendible, and alienable, but always subject to the condition.
○ Future Interest: Grantor gets possibility of reverter.

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2. Fee Simple Subject to Condition Subsequent (NY Terminology: Fee on Condition)

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2. Fee Simple Subject to Condition Subsequent (NY Terminology: Fee on Condition)
○ Language: “To A, but if X event occurs, grantor reserves the right to reenter and retake.”
§ Grantor must use clear duration language AND must carve out the right to reenter.
○ Transferable: Does not automatically terminate, but Grantor has the option to terminate if the stated condition occurs.
○ Future Interest: Grantor has right of entry, synonymous with power of termination (NY Terminology: right of reacquisition). (prerogative)

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3. Fee Simple Subject to Executory Limitation

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3. Fee Simple Subject to Executory Limitation
○ Language: “To A, but if X event occurs, then to B.”
○ Transferable: If the condition is broken, estate automatically transfers to someone other than grantor.
○ Future Interest: Other party (B) has a shifting executory interest.

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Rules of Construction for Defeasible Fees

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• Words of desire, hope, or intention are insufficient to create defeasible fee. Courts disfavor restrictions on free use of land. Therefore, court will not find defeasible fee unless clear duration language is used.
○ Examples of unclear language: “To A for the purpose of...”; “To A with the hope that…”; “To A with the expectation that…” become Fee Simple Absolute.
• Absolute restraints on Alienation are VOID. Cannot put an absolute ban on power to sell or transfer that is not linked to any reasonable time limited purpose.
○ Example: “To A so long as she never sells"--becomes Fee Simple Absolute. But “To A so long as she does not sell until 2008 when title will be clear” is ok because of purpose, O has POR.

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Life Estate

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• Life estate
○ Language: “To A for life.” A has a life estate and A is known as the life tenant.
§ Must be measured in explicit lifetime terms and NEVER in a term of years.
○ Transferable: Life tenant can sell life interest, but can only give tenancy for his life.
○ Future Interest: Grantor gets reversion (reverts back to O or O’s heirs) after A dies. 3rd party gets remainder.

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Life Estate pur autre vie

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• Life Estate Pur Autre Vie
○ Language: “To A for the life of B.” A has a life estate (pur autre vie) for life of B.
○ Transferable: Life tenant can sell the life interest, but can only give tenancy for B’s life.
○ Future Interest: Grantor gets reversion (reverts back to O or O’s heirs) after B dies. 3rd party gets remainder.

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• Doctrine of Waste as it applies to all forms of Life Estate

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○ life tenant is entitled to all ordinary uses and profits from land.
○ life tenant must not commit waste (hurt future interest holders):
1. Voluntary or affirmative waste: actual, overt conduct causing decrease in value.
□ Waste of Natural Resources: Generally must not consume or exploit natural resources, unless 1 of 4 exceptions applies (PURGE): 1) Prior Use prior exploitation (Open Mines Doctrine: can’t open new ones); 2) Reasonable repairs (use resources for repairs); 3) Grant (express); OR 4) Exploitation: land only suitable for exploitation, i.e. quarry) .
2. Permissible waste (neglect): Must maintain premises. Pay taxes on income (or fair rental value).
3. Ameliorative waste: cannot enhance value all future interest holders are known and consent.
□ NY Distinction by statute: life tenant may make reasonable improvements unless remaindermen object.

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Future interests in grantor

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• Future Interests in the Grantor:
○ Possibility of Reverter: Accompanies only Fee Simple Determinable.
○ Right of Entry (Termination): Accompanies only the Fee Simple Subject to Condition Subsequent.
○ Reversion: future interest that arises in grantor who transfers estate of lesser magnitude than he stated with (other than fee simple determinable and fee simple subject to condition subsequent). Ex: “To A for life”; “To A for 99 years”; “To A for life, then to B for 99 years.”

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Future interests in Transferees

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• Future Interests in Transferees: Vested, Contingent or executory interest.
○ Remainders: created in grantees, capable of becoming possessory upon expiration of prior possessory estate create in same conveyance in which remainder is created, always accompany preceding estate of known fixed duration (usually life estate or term of years, never follow defeasible fees.).
○ Executory interests cut short existing interests, defeasible fee held by someone other than grantor.

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Contingent remainder

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○ Contingent remainder: created in an unascertained person OR subject to a condition precedent (NY Terminology: remainder subject to condition precedent).
§ Unascertained: To A for life, then to… “B’s first child” (when B has no child); “B’s heirs” (B still living); “survivors” (B still alive).
§ Condition precedent: To A for life, then, if [some prerequisite] to B. (If Condition unsatisfied – O’s reversion, If condition satisfied – B takes).

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□ Destructibility of Contingent Remainders (rule of construction)

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□ Destructibility of Contingent Remainders (rule of construction)
® Common Law: contingent remainder was destroyed if still contingent at time preceding estate ended. (O (heirs) would take FSA).
® Modern/NY Rule: destructibility of contingent remainders abolished. (O (heirs) hold subject to B's springing executory interest).

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Rule in Shelly's case

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□ Rule in Shelly’s Case (rule of law, not rule of construction, so applied in face of contrary grantor intent).
® Common Law: “To A for life, then, on A’s death, to A’s heirs” (A is alive). Present and future interest merges giving A FSA.
® Modern: Rule virtually abolished. Most states: To A for life, then to A’s heirs” creates life estate in A and a contingent remainder in the heirs.
® NY Rule---Rule is abolished. Life estate with contingent remainder.

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Doctrine of worthier title

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□ Doctrine of Worthier Title: Rule against remainder (not reversion) in O’s heirs.
® Common Law & modern: O, who is alive, conveys “To A for life, then to O’s heirs.” Contingent remainder in O’s heirs is void. A has life estate, and O has reversion. Promote free transfer of land.
◊ Rule of construction: Grantor’s intent controls—clear intention binding.
® NY Rule—Worthier Title abolished for transfers after Sept. 1, 1967.

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1. Indefeasibly vested:

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1. Indefeasibly vested: Certain to acquire with no further conditions attached.
□ To A for life, remainder to B. (A for life, If B dies before A, B’s heirs or devisees take).
To A for life, then, if [some prerequisite] to B. (Condition satisfied during A’s life)

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2. Vested subject to complete defeasance (total divestment) (NY Terminology):

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2. Vested subject to complete defeasance (total divestment) (NY Terminology): remainder subject to complete defeasance): Remainderman is known, not subject to condition precedent, but right can be cut short due to condition subsequent.

Ex. “To A for life, remainder to B, provided however, that if B dies under the age of 25, to C.” A is alive, B is 20 years old. A has life estate, B has vested remainder subject to complete defeasance, C has shifting executory interest. (O reversion). B still takes if below 25, but haunts his holding because if dies before 25, B's heirs do not take.

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Comma rule

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® Comma rule: when conditional language in a transfer follows language that, taken alone and set off by comma, would create vested remainder, then condition is condition subsequent, then remainder subject to complete defeasance.
◊ If conditional language appears before language creating remainder, condition is condition precedent, and makes contingent remainder. "To A for life and if B has reached age of 25, to B." B has contingent remainder because taking subject to condition precedent, if not 25 then B does not take and estate reverts to O or O's heirs subject to B's springing executory interest.

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Subject to open

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3. Subject to open: remainder vested in group, at least one of who is qualified to take possession. Each class member’s share is subject to partial diminution from additional takers.
□ Ex. “To A for life, then to B’s children." A is alive, B has two children. Each child has a vested remainder subject to open (including the child in womb).
® Class closed when maximum membership has been set, so persons born thereafter are shut out. Common law: Class closes whenever any member can demand possession. E.g. B’s death b/c no more children or A’s death b/c members can demand. Child of B in womb at A's death will share.
◊ If child of B predeceases A, heir/devisees take. NY: wills

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Executory interest

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○ Executory interest: 3rd party interest that cuts short some other interest.
§ Shifting: Cuts short interest in another person. Follows defeasible fee (remainders never follow defeasible fees).
□ “To A, but if X occurs, to B” B has “shifting executory interest.” Shifts from A. A has fee simple subject o to B's shifting executory interest.
§ Springing: Cuts short interest in Grantor or his heirs. Follows defeasible fee.
□ “To A if…”O has fee simple subject to A's springing executor interest.
□ “To A for life, then, if [some prerequisite] to B.” (Condition satisfied after A’s life). In both, the interest goes back to/stays in O or O’s heirs, and would spring out to B upon satisfaction of the condition.

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Approach to RAP problem

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1. What interest is created? RAP only applies to (1) contingent remainders, (2) executory interests, (3) certain vested remainders subject to open. (Does NOT apply to interest created in O or indefeasibly vested remainders, or vested remainders subject to complete defeasance)
2. What is condition precedent to vesting?
3. Find measuring life: Person alive at date of conveyance who is relevant to condition’s occurrence.
4. Will we know, with certainty, within 21 years of the death of our measuring life, if our future interest holder(s) can or cannot take? If so, the conveyance is good. If not, void.

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RAP problem approach in action

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○ Ex. “To A for life, then to the first of her children to reach the age of 30.” A is 70. Her only child, B, is 29 years old.
§ (1) interest: Contingent reminder in B’s first child to reach 30 (unknown now); (2) condition: A must die and a child must reach 30; (3) measure: A (not B because conveyance is not B specific); (4) Ask: No certainty. B could die. A could have another child C. C would not be 30 within 21 years.
§ Fertile Octogenarian Rule: presumes that a person can have a child at any age.
§ A has life estate, O has reversion.

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A gift to open class that is conditioned on the members surviving to an age beyond 21 violates the common law RAP.

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• A gift to open class that is conditioned on the members surviving to an age beyond 21 violates the common law RAP. “Bad as to one, bad as to all": to be valid, every member must be able to take.
○ Ex. “To A for life, then to such of A’s children as live to attain the age of 30.” A has two children, B and C. B is 35 and C is 40. A is alive (Gift to an open class). B and C’s vested remainder subject to open are voided by the common law RAP and its “bad as to one bad as to all rule” (A could have another child and die; that child will not reach 30 within 21 years of A’s death). Entire gift is void. A has a life estate and O has reversion.

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What is the significance of concurrence of the mental fault and physical act?

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D must have the necessary intent for the crime at the time he committed the act constituting the crime.

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• Charity to Charity: gift from one charity to another does not violate RAP.

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• Charity to Charity: gift from one charity to another does not violate RAP.
○ Ex. “To the American Red Cross, so long as the premises are used for Red Cross purposes, and if they cease to be so used, then to the YMCA.” Normally violate RAP but for Charity, it does not violate. ARC has fee simple, subject to YMCA's valid shifting executory interest.

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Modern reforms to RAP

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• “Wait and See” or Second Look (Minority rule): Validity of any suspect future interest is determined on basis of facts as they now exist at conclusion of measuring life.
• Uniform Statutory Rule Against Perpetuities (USRAP): Provides alternative 90 year vesting period.
• Both Wait and See AND USRAP embrace
○ Cy pres doctrine: “as near as possible”--court will reform the violation in a way that most closely matches grantor’s intent while still complying with RAP.
○ Reduction of any offensive age to 21 years.

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NY RAP statute

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• New York RAP Statute: Applies Common Law RAP and rejects “wait and see” and “cy pres” except for chartable trusts and powers of appointment.
○ Age contingencies are reduced to 21 years (if interest would be invalid for having to attain an age in excess of 21).
○ Fertile Octogenarian Principle is modified to age 55 (presumes that a woman over age of 55 cannot have a child; adoption is disregarded).
○ Suspension Rule (tested with Trusts & Wills): Rule Against Suspension of Absolute Power of Alienation--applies common law RAP to restrictions on power to sell or transfer. Interest void if it suspends power to sell/transfer for period longer than lives + 21 years.

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Joint tenancy

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• Joint Tenancy: two or more own with the right of survivorship.
○ Right of Survivorship: When one joint tenant dies, his share passes automatically to surviving.
○ Alienable: Can sell or transfer joint tenancy (even in secret, without permission), but is NOT devisable (in Will) or descendible (to heirs) because of right of survivorship.
○ Creation (4 unities T-TIP): 1) Time, 2) Title (instrument), 3) Identical interest (equal), and 4) Possession (right to possess the whole). Additionally, grantor must clearly express the right of survivorship (if not expressed, creates tenancy in common).
○ Straw: If one person holds interest, but wants another to join requires two steps: (1) convey to straw; (2) straw conveys to both as joint tenants with right of survivorship.
§ NY Distinction: No straw needed. Can re-convey interest to self and other.

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Severance of joint tenancy

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§ Sale: Tenant sells, unity disrupted, Buyer takes as Tenant in Common (Note: if there are two or more Joint Tenants, Joint Tenancy remains intact as between them). Can be secret, without others knowledge or consent.
□ Equitable conversion (equity regards as done that which ought to be done): Contract to sell interest, severs joint tenancy as to contracting party's interest on date of contract.
§ Partition: 1) Voluntary: peaceful end of relationship; 2) In Kind: judicial action for physical division, if in best interest of all; 3) Forced sale: judicial action where land sold and proceeds divided, if in best interests of all.
§ Mortgage: effect of mortgage on joint tenancy property depends on jurisdiction:
□ Title Theory (Minority): Mortgage servers encumbered share from joint tenancy (after mortgage is released, get back Tenancy in Common).
□ Lien Theory (Majority & NY Rule): Mortgage does not sever encumbered share from joint tenancy (after released, joint tenancy intact).

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Tenancy by the entirety

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• Tenancy by the Entirety: protected marital interest between married partners with right of survivorship. Recognized in 21 states including New York.
○ Right of Survivorship: Only created in married partners who share right of survivorship.
○ Creation: If made “to Husband and Wife,” presumption of by entirety, unless otherwise stated.
○ Creditors: Creditors of one spouse cannot touch tenancy entirety property.
§ NY Distinction: One spouse may mortgage his interest; his creditors may enforce against that interest, but only as to debtor spouse's share. Further, non-debtor spouse's rights, including right of survivorship, must not be compromised.
○ Unilateral Conveyance: neither tenant acting alone can defeat the right of survivorship by unilateral conveyance to third party. Unlike joint tenancy were unilateral conveyance is ok.

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Tenancy in common

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• Tenancy in Common: Two or more own individual part and each has right to possess whole with no right of survivorship.
○ Features: Each interest is descendible, devisable, and alienable, so there are no survivorship rights.
○ Presumption favors the tenancy in common.

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• Rights and Duties of Co-Tenants (Applies to all co-tenancies: Joint Tenants, Tenants in Common, Tenancy by the Entireties):

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○ Possession: Each co-tenant is entitled to possess and enjoy the whole. Wrongful exclusion = wrongful ouster.
○ Rent from co-tenant in exclusive possession: absent ouster, co-tenant is not liable for rent to other tenants.
○ Rent from third parties: Co-tenants are entitled to their fair share of the rental income based on % ownership.
○ Adverse possession: One co-tenant in exclusive possession for adverse possession period cannot acquire title to exclusion of others. Hostility element of adverse possession is absent (no ouster).
§ NY Distinction: Co-tenant may acquire full title by adverse possession if he is in exclusive possession for 20 continuous years (theory of implied ouster).

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• Rights and Duties of Co-Tenants (Applies to all co-tenancies: Joint Tenants, Tenants in Common, Tenancy by the Entireties) Con't

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○ Carrying costs: Each is responsible for fair share of carrying costs (taxes, mortgage) based on % ownership.
○ Repairs: Each co-tenant must contribute to repairs their fair share of the repair based on % ownership. Repairing co-tenant enjoys right to contribution for reasonably necessary repairs, provided NOTICE to other co-tenants of the need.
§ Improvements: during life of co-tenancy, no right to contribution for “improvements”---However, at partition, improving co-tenant is entitled to credit if property is increased in value OR bears full liability if there is decrease in value due to “improvements”.
○ Waste: co-tenant must not commit waste. (Waste: voluntary, permissive and ameliorative.). Co-tenant CAN bring action for waste DURING life of the co-tenancy.
○ Partition: joint tenant or tenant in common has right to bring action for partition. Methods: 1) Voluntary: peaceful end of relationship; 2) In Kind: judicial action for physical division; 3) Forced sale: judicial action where land sold and proceeds divided.

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Tenancy for years

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• Tenancy for Years (aka estate for years or term of years): Lease for a FIXED determined period of time.
○ Know termination date, therefore NO NOTICE is required for termination.
○ Term greater than 1 year must be in writing (Statute of Frauds).

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Periodic tenancy

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• Periodic Tenancy: continues for successive intervals, until L or T give proper notice of termination.
○ Express: “To T from month to month (year to year) (week to week).”
○ Implied:
1. Lease has no mention of duration, provision made for payment of rent at set intervals.
2. Oral term of years greater than 1 year (in violation of the Statute of Frauds) creates implied periodic tenancy measured by way rent is tendered.
3. Holdover in a residential lease, if L elects to holdover a T who has wrongfully stayed past the conclusion of the original lease creates implied periodic measured by way rent tendered.
□ New York distinction: landlord who elects to holdover tenant creates implied month-to-month periodic tenancy, unless otherwise agreed.

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Termination of periodic tenancy

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○ Termination: NOTICE (usually written) required, at least equal to length of the period itself at common law, unless otherwise agreed.
§ Monthly = 1 Month; Weekly = 1 Week; Year or great = 6 months.
§ Freedom of contract: by private agreement, parties may lengthen or shorten common-law prescribed notice provisions.
Period must end at conclusion of natural lease period. May 15 notice month-to month ends June 30.

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Tenancy at will

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• Tenancy at Will: tenancy for no fixed period of duration. Must expressly agree to tenancy at Will.
○ Rent: Unless express agreement, payment of regular rent will cause court to treat as implied periodic tenancy.
○ Termination: By either party at any time; however, reasonable demand to vacate typically required.
§ New York distinction: L must give T minimum of 30 days written notice of termination.

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Tenancy at sufferance

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• Tenancy at Sufferance: when T wrongfully holds over, T becomes Tenant at Sufferance, permitting L to recover rent. L has two options: (1) evict T; or (2) elect to hold T to new term. (Short lived tenancy).
○ New York distinction: landlord’s acceptance of rent subsequent to expiration of term will create implied month-to-month periodic tenancy, unless otherwise agreed.

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Tenant's liability to 3rd parties

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1. T’s liability to third parties (tort law): T is responsible for keeping the premises in reasonably good repair.

Injury: T is liable for injuries sustained by 3rd parties T invited, even where L has expressly promised to make all repairs---T may seek indemnification from L if L agreed to make repairs.

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Tenant's duty to repair when lease is silent

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○ When lease is silent---standard: T must MAINTAIN premises and make ordinary repairs.
§ Waste: T must not commit waste (Voluntary: overt harmful acts; Permissive: neglect; Ameliorative: alterations increasing value)
§ Fixtures: T cannot remove fixtures (even if he put them there) because removal = waste.
□ Law of Fixtures: fixture is once movable chattel that by virtue of its attachment to realty, objectively shows intent to permanently improve reality. Fixtures pass with ownership of the land. (Ex: Heating, custom made windows, furnace, certain lighting).
□ What Qualifies as “fixture”?
® Express agreement: agreement between L and T controls and is binding.
® No agreement: T may remove chattel he installed so long as removal does not cause substantial harm to premises. If damage caused from removal = objective intent to install a permanent fixture (and it must stay).

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Tenant's duty to repair when covenants to maintain property in good condition

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○ When lease has express covenant to maintain property for in good condition for duration of lease:
§ Common law: T was responsible for any loss to property, including loss attributable to force of nature.
§ Modern rule (Majority & NY Rule): T may terminate lease if premises are destroyed without T’s fault.
□ NY: absent T’s express undertaking to restore premises in event of destruction, if premises are destroyed through no fault of tenant, tenant may quit premises and surrender possession without any further duty to pay rent.

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Tenant's duty to pay rent when in possession

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○ T breaches, but is in possession: options to 1) evict through courts (still entitled to rent) or 2) continue relationship & sue for rent due.
§ NO SELF-HELP (change lock, forcibly move tenant/possessions). Punishable civilly and criminally.
§ New York rule: self-help is flatly prohibited and entitles tenant to treble damages.

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Tenant's duty to party rent when not in possession

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○ T breaches, but is out of possession: options (SIR)-- 1) Surrender (T shows by words or actions T wishes to give up leasehold). If unexpired term is greater than 1 year, surrender in writing; 2) Ignore and hold T to rent (only in minority of states); 3) Re-let on T’s behalf, hold T liable for deficiencies.
§ Majority Re-let rule: Majority-must try to re-let/mitigate.
□ NY distinction: mitigation not required.

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Landlord duty to deliver possession

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1. Duty to Deliver Possession
○ Majority (English Rule): L must put T in actual possession. If holdover T is in possession, L breaches, new T gets damages.
○ Minority (American Rule--minority view): L not required to put T in actual possession, only legal possession

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Implied covenant of quiet enjoyment

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2. Implied Covenant of Quiet Enjoyment: Applies to both residential and commercial leases. T has right to quiet use and enjoyment of premises without interference from L.
○ Breach by actual wrongful eviction: L wrongfully evicts T or excludes T from premises.
○ Breach by constructive eviction (SING): 1) Substantial Interference attributable to L’s action or failure to act (chronic problem); 2) Notice given by T to L of problem (L fails to respond meaningfully); AND (3) Goodbye (T must vacate).
○ Acts by other Tenants: L is generally not liable for acts of other tenants
Exceptions: 1) nuisance on premises and 2) actions in common areas (L must control common areas).

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Implied warranty of habitability

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3. Implied Warranty of Habitability: only applies to residential leases (not commercial). Non-waivable.
○ Standard: Premises must be fit for basic human habitation (bare living requirements); standard supplied by local housing code OR case law. Ex: Failure to provide heat in winter; lack of plumbing; lack of running water.
○ Entitlements upon Breach--Four options: 1) Move out and terminate lease; 2) Repair and deduct from future rent; 3) Reduce rent or withhold all rent and place in escrow; 4) Remain, pay rent, seek damages (staying is distinction between constructive eviction and implied warranty of habitability).

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Retaliatory eviction

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Retaliatory Eviction: If T lawfully reports L for housing code violations, L is barred from penalizing T, by, for example, raising rent; ending lease; harassing T; or taking any other retaliatory measures.

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Assignment

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• Assignment: Transfer of whole interest. (L can prohibit T from assigning without L’s prior written approval. Once consent is granted, L waives right to object to future transfers, unless expressly reserves right).
○ New York distinction: unless lease provides otherwise, residential T may not assign without L’s written consent. L can unreasonably withhold consent to assign, and T’s sole remedy is to seek release from lease.

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Effect of assignment

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○ Effect of Assignment: Ex. L leases to T; T assigns to T2; T2 assigns to T3.
§ Privity of Estate: Liable to each other for all of covenants in original lease that “run with the land.” (i.e. rent, paint premises, repair, etc.) Between the landlord and Tenant in Possession. Ex. L and T3.
§ Privity of Contract: L and T2/T3 only in privity of contract if T2 expressly assume original lease promises. After assignment, L and T1 are no longer in privity of estate, but are in privity of contract--Secondarily liable for breaches of lease. Ex. L&T; T&T2; T2&T3.
§ No Privity: Ex. L and T2: privity of contract (unless expressly assumed) nor of estate (ended when T2 assigned to T3).

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Sublease

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• Sublease: Transfer of part interest.
○ New York distinction: T in residential building having four or more units has the right to sublease subject to L’s written consent. Sublease consent cannot be unreasonably withheld (deemed consent).
○ Effect of Sublease: L and Sublessee are neither in privity of contract nor in privity of estate--share no nexus. Privity of contact/estate exists between T and T2 (who are liable to each other). L can still go after T (privity of contract) for T2’s breaches, but cannot go after T2 directly.

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Landlord tort liability

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• Common Law: caveat lessee--standard: “let tenant beware”. In Tort, L had no duty to make premises safe.
• Exceptions to the Common Law (CLAPS): When L has a duty to make the premises safe—
○ Common areas: Ex. Hallways, Stairwells.
○ Latent defects: duty to WARN of hidden defects of which L has knowledge or should reasonably know about. No duty to repair.
○ Assumption of repairs: once undertaken, L must complete repairs with reasonable care. L will be liable for negligent repairs.
○ Public use: L who leases public space (ex: convention hall or museum) and who should know, because of nature of defect and length of lease that T will not repair, is liable for any defects on premises.
○ Short term: A short term lease of furnished dwelling, L is responsible for any defective condition which proximately injured T. (T has neither time nor inclination to make repairs himself).

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Easements

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• Easements: grant of nonpossessory property interest that entitles its holder to use and enjoy other’s land, called the serviant tenement . holder’s land is called dominant and land being use/enjoyed is servient. Subject to Statute of Frauds. Easements are either Affirmative or Negative and are also either Appurtenant or In Gross.
○ Scope of an easement is set by terms of grant or conditions that create it (cannot be unilaterally expanded).

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Negative easement

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○ Negative: holder can prevent servient landowner from doing something affecting dominant land. 4 categories: (LASS)—1) Light, 2) Air, 3) Support, 4) Stream water from artificial flow. (Minority: Scenic View)
§ Creation: ONLY by EXPRESS WRITNG signed by grantor (not automatic!).

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Affirmative easement

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○ Affirmative: right to go onto servient land and do something (ex: access, lay utility lines).
§ Creation: Four ways (PING): 1) Prescription; 2) Implication; 3) Necessity; 4) Grant.
□ Prescription: By Adverse Possession (COAH) --1) Continuous use for statutory period, 2) Open and notorious, 3) Actual use, 4) Hostile (no consent).
® New York: Statutory period is 10 years.
□ Implication: Implied from existing use--(One parcel is split into two). Use is (1) apparent AND (2) parties expect that use would survive division because it is reasonably necessary to dominant owner’s land use and enjoyment.
□ Necessity: Landlocked---right of way is implied by necessity if grantor conveys portion of his land with NO WAY OUT except over grantor’s remaining land.
® Necessity easement (no express grant) expires when necessity ends.
□ Grant: Easement for more than 1 year must be in writing that complies with formal elements of deed, called “deed of easement.” (because of statute of frauds)

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Appurtenant easement

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○ Appurtenant: When it benefits its holder in his physical use or enjoyment of his property. TWO parcels of land are required: dominant has benefit and servient has burden.
§ Ex. Right of way across A’s land to get to B’s land. B is dominant/A is servient.
§ Transferability: benefit passes automatically with dominant tenement, regardless of whether it is even mentioned in conveyance. Burden also passes automatically with servient estate, unless the purchase is Bona Fide without NOTICE of easement.

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In gross easement

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○ In gross: When it benefits holder in some personal or pecuniary way, that is not related to his use of enjoyment of his land. Servient land is burdened, but there is no dominant land.
§ Ex: Right to place billboard on another’s lot, swim in another’s pond, lay power lines.
§ Transferability: Personal not transferable; Commercial is transferable.
□ Personal = ex. Swim in pond. Commercial = ex. Fish for bait for bait company.

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○ Termination of all types of easements: (“END CRAMP”) (1) Estoppel, (2) Necessity, (3) Destruction, (4) Condemnation, (5) Release, (6) Abandonment, (7) Merger, (8) Prescription.

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§ Estoppel: Servient owner materially changes his or her positions in reasonable reliance on easement holder’s assurances that easement will no longer be enforced.
§ Necessity: If created by necessity, easement expires when no longer necessary.
□ If the easement by necessity was expressly granted, it does not automatically end.
§ Destruction: servient land is destroyed through no fault of servient owner.
§ Condemnation: by eminent domain.
§ Release: Easement holder gives servient owner WRITTEN release of easement.
§ Abandonment: Easement holder demonstrates by PHYSCIAL ACTION intent to never use.
□ Mere non-use or mere words are insufficient to terminate by abandonment.
§ Merger (or Unity of Ownership): Easement is extinguished when title to easement and title to the servient land become vested in same person. Easement is not revived upon later separation.
§ Prescription: Servient owner interferes with easement holder’s rights through Adverse Possession (interference required!): Continuous, Open/Notorious, Actual, Hostile to easement holder.

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License

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• License: mere privilege to enter another’s land for some delineated purpose.
○ No writing: Not subject to Statute of Frauds, thus no writing required.
○ Revocable: Licenses are freely revocable (at will), unless estoppel bars revocation.
○ Classic cases: Tickets: freely revocable at any time; Oral Easements: (“neighbors talking by fence”) violate statute of frauds, so treated as freely revocable licenses.
○ Estoppel: Bars revocation only when licensee has invested substantial money, labor, or both in reasonable reliance on license’s continuation.

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Profit

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• Profit: profit entitles its holder to enter servient land and take from it the soil or some substance of soil (minerals, timber, oil). Profit shares ALL rules of easements.

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Covenant

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• Covenant: promise to do or not to do something related to land. Not grant of property interest (as with easement). Contractual limitation or promise regarding land.
○ Negative (restrictive covenant): promise to refrain from doing something related to land (not to build for commercial purpose on my land)
○ Affirmative: promise to do something related to land.
§ Distinguish from Equitable Servitude: different remedy sought--covenants seek money damages. Equitable Servitudes seek injunction.

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When do burdens run with the land?

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§ Burden side: elements necessary to run (WITHN)-- 1) Writing between original parties; 2) Intent of original parties that covenant would run (imputed generously by courts); 3) Touch and concern land (affect legal relationship as land owners, not members of community at large), 4) Horizontal and Vertical privity, 5) Notice of promise to second holder(A1) when he took.
□ Horizontal: originally created by succession of estate at time covenant made---A and B had to have been grantor/grantee, landlord/tenant, mortgagor/mortgagee only. Difficult to establish, absence is reason why many burdens won't run.
□ Vertical: some non-hostile nexus (contract, devise, descent) between first (A) and second owner (A1)—NOT through adverse possession.

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When do benefits run with the land?

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§ Benefit side: Does B1 have standing to raise claim? elements necessary to run (“WITV”) 1) Writing between original parties, 2) Intent of original parties that the covenant would run, 3) Touch and concern the land (affect legal relationship as owners), 4) Vertical privity only (some non-hostile nexus) (No horizontal privity for benefit to run)

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Equitable servitude

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• Equitable Servitude: promise that equity will enforce against successors (accompanied by injunctive relief).
○ Creation (WITN): 1) Writing generally, but not always; 2) Intent by original parties that promise would be enforceable by and against assignees; 3) Touch and concern the land so as to affect the parties as landowners; 4) Notice must be given to assignees of burdened land.
○ PRIVITY IS NOT REQUIRED TO BIND SUCCESSORS FOR EQUITABLE SERVITUDE

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Implied equitable servitude

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• Implied Equitable Servitudes: “The General or Common Scheme Doctrine”—Can enjoin someone from using their land in certain way if elements of doctrine are satisfied. Imposes “reciprocal equitable (negative) servitude” to hold otherwise facially unrestricted lot holder to restrictive covenant.
○ Elements: Originally held by one owner. Upon subdivision (when sales began), the subdivider had a general scheme of residential development, which included defendant’s lot.
○ Defenses: must show Change in Conditions (change must be so pervasive that entire area or subdivision has changed).
§ NEVER defense: limited or piecemeal change to area.

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Notice for implied equitable servitude

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§ Defendant lot holder had notice of promise contained in the prior deeds. 3 kinds (“AIR”)
□ Actual notice: literal knowledge of promises in prior deeds.
□ Inquiry notice: imputed when neighborhoods conforms to common restrictions. (constructive notice)
□ Record notice: imputed to buyers on the basis of publicly recorded documents. (constructive notice)
® Courts are split: some take view that subsequent buyer is on record notice of contents of prior deeds transferred to others by common grantor.
® New York distinction: NY and some other states take view that subsequent buyer does NOT have record notice of contents of those prior deeds transferred to others by common grantor. Better view because less burdensome to D' s title searcher.

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Adverse possession

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• Adverse Possession: Possession for a statutory period of time can, if certain elements are met, ripen into title. COAH
○ Continuous uninterrupted use for given statutory period. New York: Statutory period is 10 years.
○ Open and Notorious, sort of possession that the usual owner would make under circumstances. Noticeable and out in open, not hiding, so true owner can know that you are there.
○ Actual and not hypothetical or fictitious.
○ Hostile without the consent of the owner. Possessor’s subjective state of mind is irrelevant.
§ NY: need good faith belief (albeit mistaken one) that land is his; bad faith is impediment to successful possession claim.

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Taking and disabilities for adverse possession

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• Tacking: One adverse possessor may tack on his time with land to his predecessor’s time, so long as there is privity. Satisfied by any non-hostile nexus (blood, contract, deed, will). Tacking is NOT allowed for ouster by another hostile adverse possessor.
• Disabilities: statute of limitations will not run against true owner who is afflicted by disability at inception of adverse possession. Note: Disabilities cannot be tacked.
○ Common disabilities: Insanity, infancy, imprisonment.
○ Ex. Owner is sane, adverse possessor comes on, person then goes insane – Adverse possession will run. Vs. Owner is insane, adverse possessor comes on – SOL will not run.

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Contract for land

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• Contract (Contract stays in force until “closing”): land contract must be (1) in writing and (2) signed by person to be bound. Must (3) describe land and (4) state some consideration. Writing must have all essential terms, including price.
○ Land description: If description is inaccurate (contract is more than actual size), then B is entitled to Specific Performance with pro rata reduction in purchase price.
○ Exception to writing requirement: “Doctrine of Part Performance”—if two of the three are satisfied, equity will decree specific performance for oral contract: (1) Buyer takes physical possession of land; (2) Buyer pays all or part of purchase price; (3) Buyer makes substantial improvements to land.

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Risk of loss on contract for land

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○ Risk of Loss: Apply "equitable conversion"--once contract is signed, B is owner of land, subject to condition that he pay at closing. Upon destruction (through no fault of either party) between signing of the contract and closing, Buyer bares risk of loss, unless stated otherwise.
§ New York distinction: so long as buyer is without fault, the risk of loss remains with seller until buyer has title or takes possession. (Uniform Vendor Purchaser Risk Act)

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Implied promises in contract for land

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§ Seller promises to provide marketable title at closing: Title free from reasonable doubt (free from lawsuits and threat of litigation). Title unmarketable if: (1) Based on adverse possession (even portion); (2) Encumbrances (cannot have servitudes or mortgages, unless Buyer waives); or (3) Zoning violation.
□ Seller has right to satisfy an outstanding mortgage or lien at closing, with proceeds of sale. (Buyer cannot claim title is unmarketable so long as parties understand that closing will result in mortgage being satisfied).
§ Seller promises not to make any false statements of material fact: majority of states hold seller liable for failure to disclosure latent material defects (lies and omissions).
Disclaimers: If contract contains general disclaimer of liability (for example, “property sold as is” or “with all faults”): Disclaimer will not excuse sell from liability for fraud or failure to disclose

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No warranties in contract for land

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○ No Warranties: land contract contains no implied warranties of fitness or habitability.
§ Common law norm: caveat emptor (let buyer beware).
§ Exception: implied warranty of fitness and workmanlike construction applies to the sale of a NEW home by a builder-vendor.

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Lawful execution of closing

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• Closing: controlling document is now deed--passes legal title from seller to buyer. Deed must be “LEAD” Lawfully Executed and Delivered.
○ Lawful Execution: must be in writing, signed by grantor. Need not recite consideration, nor must consideration pass to make valid deed. Description does not have to be perfect—must be unambiguous and good lead (can research and discern what grantor means: “all my land”).

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Delivery of closing

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○ Delivery: satisfied when grantor physically or manually transfers the deed to grantee (mail, agent, messenger). HOWEVER, delivery does not require actual physical transfer of instrument.
§ Legal standard for delivery, test of present intent: Did grantor have present intent to be immediately bound, irrespective of whether or not deed has been literally handed over? If yes, delivery made.
§ Express rejection: grantee’s express rejection of deed defeats delivery.
§ Oral Conditions: If deed is absolute on its face, oral condition (not included in deed) at time of transfer is void. Not provable. Delivery is deemed accomplished.
§ Delivery by escrow: Grantor may deliver executed deed to third party, known as escrow agent, with instructions that deed be delivered to grantee once certain conditions are met. Once conditions are met title passes automatically to grantee.
□ Advantage of escrow: If grantor dies or becomes incompetent or is otherwise unavailable before express conditions are met: title will still pass from escrow agent to grantee once conditions are met.

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Quitclaim

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• Quitclaim: contains no covenants. Grantor isn’t even promising that he has title to convey--worst deed buyer could hope for. However, grantor implicitly promised in land contract to provide marketable title at closing, but for any post closing problems, seller is off hook.

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General warranty deed:

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• General warranty deed: Best deed buyer could hope for. Warrants against all defects in title, including those due to grantor’s predecessors. General warranty deed typically contains all six of covenants (seisin, right to convey, encumbrances, quiet enjoyment, warranty, further assurances).

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Present covenants of general warranty deed

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○ Present covenants: breached, if ever, at the time the deed is delivered. (Statute of limitations begins to run from instant of delivery)
§ Seisin: Grantor warrants that he owns estate he now claims to convey.
§ Right to convey: Grantor promises that he has power to make conveyance. No temporary restraints on grantor’s power to sell. Ex. Of legal age to sell, no clouds on title, etc.
Against encumbrances: Grantor promises no servitudes or mortgages on land (rendering title unmarketable).

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Future covenants of general warranty deed.

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○ Future Covenants: not breached, if ever, until grantee is disturbed in possession. (Statute of limitations for breach begins on future date of disturbance).
§ Quiet enjoyment: Grantor promises that grantee will not be disturbed in possession by third parties lawful claim of title. Not double-conveyed.
§ Warranty: Grantor promises to defend grantee should there be any lawful claims of title asserted by others.

Further assurances: Grantor promises to perform whatever future acts are reasonably necessary to prefect grantee’s title if it later turns out to be imperfect.

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Statutory special warranty deed:

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• Statutory special warranty deed: Provided for by statute in many states, contains two promises that grantor makes only on behalf of himself. (no representations on behalf of grantor’s predecessors):
○ Grantor promises has not conveyed estate to anyone other than grantee; AND
○ Grantor promises estate of free from encumbrances made by grantor.
§ New York terminology: bargain and sale deed.

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Two brightline rules for recording systems

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○ Two brightline rules:
○ If B is BONA FIDE PURCHASER, and in NOTICE jurisdiction, B wins, regardless of whether or not she records before A does.
○ If B is BONA FIDE PURCHASER and in race-notice jurisdiction, B wins if she records properly before A does.

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Bona Fide Purchaser

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• Bona fide purchaser = purchases for value and without notice.
○ Value = remit substantial pecuniary consideration.
○ Notice(AIR) = Actual, Inquiry (constructive), Record (constructive).
§ Actual: Prior to closing, Buyer gets literal knowledge of previous buyer’s existence.
§ Inquiry: Whatever examination of land would reveal (i.e. another in possession), whether buyer examined or not because has duty to inspect.
§ Record: Another deed was properly recorded within Chain of Title: sequence of recorded documents capable of giving record notice to later takers; search through grantor/grantee index.
○ Protection: only bona fide purchasers and mortgagees (not donees, devisees or heirs unless Shelter Rule Applies).

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Types of recording statute

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○ Notice: If at time Buyer takes he is Bona Fide Purchaser (value and no notice), he wins.
§ Language: “A conveyance of interest in land shall not be valid against any subsequent purchaser for value, without notice thereof, unless conveyance is recorded.”
§ In notice system, last BFP to enter, wins.
○ Race-Notice: If Buyer is (1) Bona Fide Purchaser and (2) wins race to record, he wins.
§ Language: “Any conveyance of an interest in land shall not be valid against any subsequent purchaser for value, without notice thereof, whose conveyance is first recorded.”
§ New York distinction: New York under NYRPL has race-notice statute.

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Shelter rule

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○ Shelter Rule: One who takes from BFP will prevail against any entity that transferor or BFP would have prevailed against. Therefore, donee (or buyer with notice) can “step into the shoes” of BFP even though she otherwise fails to meet requirements of BFP status.
§ Ex. O conveys to A, who does not record. Later, O conveys to B, a BFP, who records. B then conveys to C, who is mere donee or who has actual knowledge of the O to A transfer. In contest of A vs. C, C prevails because B would have prevailed.
§ Purpose: protect B/BFP by making it easier for B to transfer successfully.

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Wild Deed

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○ Wild Deed: If deed, entered on records, has grantor unconnected to chain of title, deed is wild deed, incapable of giving record notice of its existence.
§ Ex. O à A (does not record). AàB (does record—wild deed). O à C (records). C prevails, because B's recording is nullity. C is BFP with no notice (wins in notice state) and properly records first (wins in race-notice).

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Estoppel by deed

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○ Estoppel By Deed: One who conveys realty in which he has no interest is estopped from denying validity of conveyance if he subsequently acquired interest he previously transferred. BUT, person who recorded something he does not own (first buyer) does not make valid recording as applied to notice for subsequent buyer.
§ Ex. X à A (X does not own, but A records). O à X (estoppel by deed applies, between X and A only, A owns). Then Xà B (BFP without notice because A’s deed invalid). B wins.

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Mortgage

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• Mortgage: security interest in land, intended by parties to be collateral for repayment of monetary obligation.
○ Creation: union of (1) Debt and (2) Voluntary Transfer of Security Interest in debtor’s land to secure debt. Debtor is mortgagor and creditor is mortgagee.
Legal Mortgage: Must be in writing to satisfy statue of frauds. Known as: “Mortgage Deed” or “Note” or “Security Interest in Land” or “Deed of Trust” or “Sale Leaseback”
○ Equitable Mortgage: Creditor receives deed that is absolute on its face (instead of note); parties understand land is collateral for debt.
§ Between Debtor and Creditor: Parol evidence is freely admissible to show parties true intent
§ If Creditor sells to bona fide purchaser, Debtor’s only recourse: Fraud action against creditor (recover proceeds of sale, but cannot get land back).

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Mortgage parties rights

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• Parties’ Rights: once mortgage is created:
○ Debtor-mortgagor has title and right to possession (unless and until foreclosure).
○ Creditor-mortgagee has lien: right to look to land if there is default.
§ Recording Statutes Protect Mortgagees (creates record notice of lien).

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Transferability of mortgages

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• Transferability: All parties to mortgage can transfer their interests. Mortgage automatically follows properly transferred note.
○ Creditor-mortgagee can transfer his interest by (1) endorsing note and delivering to transferee; OR (2) executing separate document of assignment.
○ Holder in Due Course: If note is endorsed and delivered, transferee is eligible to become holder in due course. Elements needed for Holder in Due course status:
§ Note must be negotiable: made payable to named mortgagee;
§ original note must be endorsed: signed by named mortgagee;
§ original note must be delivered to transferee (no photocopies);
§ transferee must take note in good faith without notice of illegality; and
§ transferee must pay value for note (more than nominal).

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Holder in Due course defenses

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○ Defenses: HDC will take note free of any personal defenses that could have been raised against the original mortgagee, but not free of real defenses. (Defenses disable foreclosure).
§ Personal: 1) lack of consideration, 2) fraud in inducement, 3) unconscionability, 4) waiver, 5) estoppel--routine breach of contract action defenses.
§ Real: (MAD FiFI4) 1) Material Alteration, 2) Duress; 3) Fraud in Factum (lie about instrument), 4) Incapacity, 5) Illegality, 6) Infancy, 7) Insolvency.

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Recording mortgage

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○ Recording mortgage ( later buyer takes subject to properly recorded lien):
§ In notice state, subsequent BFP prevails over prior grantee or mortgagee who has not yet recorded properly at time BFP takes.
§ In race notice, BFP would win if he has no notice and records first. If mortgagee records first, it creates record notice.

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Liability for transferred mortgage

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○ Liability: Personally liability on original debt depends on how note/mortgage is transferred.
§ If Buyer “assumed mortgage” – original mortgagor and buyer (if signed) are personally liable. Buyer is primarily liable. Original mortgagor is secondarily liable.
§ If Buyer “takes subject to mortgage” – Buyer assumes no personal liability on debt. Original mortgagor is fully liable. But, if mortgage is recorded, mortgage remains on the land. Thus, if O does not pay, mortgage may be foreclosed against B’s land.

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Foreclosure

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• Foreclosure: If mortgagee-creditor looks to land for satisfaction, foreclosure action is commenced—
○ Procedure: Proper Judicial Proceeding is required. land is sold; sale proceeds satisfy debt.
§ Proceeds less than debt: mortgagee brings personal action against debtor for deficiency.
§ Proceeds more than debt: junior liens paid off in order of their priority (each claimant entitled to satisfaction in full before subordinated lienholder takes); surplus goes back to debtor.
§ Before any creditor is paid, attorney’s fees, expenses of foreclosure, and accrued interest on mortgage is paid.

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Effect of foreclosure

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○ Effect of Foreclosure: Foreclosure will terminate interest junior to mortgage, but does not affect any interest senior to mortgage. But once foreclosure of superior claim has occurred, with proceeds distributed appropriately, junior lienholder can no longer look to land for satisfaction.
§ Junior: Foreclosure terminates interests junior to mortgage being foreclosed (so long as Jr. has notice). Junior paid in order of priority; can seek deficiency, but no interest in land.
□ Jr. is “necessary party” to Sr.’s action-- failure to join à Jr. mortgage remains on land.
§ Senior: Foreclosure does not affect any interest senior to mortgage being foreclosed. Buyer takes “subject to mortgage” – not personally liable, but still attached to land. As practical matter, if senior mortgage is not paid, sooner or later senior creditor will foreclose on land.

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Priorities

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○ Priorities: Creditor must record (until recording, no priority). Once recorded, “first in time, first in right.”
§ Exception: Superpriority to “Purchase Money Mortgage”--money given to acquire land. PMM gets first priority on parcel he financed, regardless of senior mortgages (ex: Floating lien: “after acquired collateral clause” that creates senior interest in holdings “owned or hereafter acquired”).
○ Subordination: By private agreement, Sr. creditor may agree to subordinate priority to Jr. creditor

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Redemption

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○ Equitable Redemption: Prior to foreclosure sale, debtor has right to redeem land and free it of mortgage, by paying missed payments + interest + costs. After foreclosure, redemption right cut off. Cannot waive right to redeem (“clogging” is prohibited).
□ If mortgage is accelerated (permits mortgagee to declare full balance due in event of default): debtor must pay full balance + interest + costs.
○ Statutory Redemption (recognized in half states): right to redeem after foreclosure (usually 6 months to 1 year). Amount to be paid is foreclosure sale price rather than amount of original debt. Mortgagor remains in possession for statutory period. Redemption by mortgagor nullifies foreclosure.
□ New York distinction: No right to statutory redemption (only equitable prior redemption).

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Lateral support

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• Negligence: If land is improved by buildings and a adjacent landowner’s excavation causes that improved land to cave in, excavator will be liable only if he acted negligently.
• Strict Liability: Strict liability does not attach to the excavator’s actions unless P shows that, because of defendant’s actions, P's improved land would have collapsed even in its natural state (i.e. without improvements). For strict liability to attach, P would have to show that improvements on her land did not contribute to land’s collapse--highly difficult burden.

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Water rights

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• 2 major systems for determining allocation of water in watercourse (streams, rivers, lakes):
○ Riparian Doctrine: “Riparians” are owners of land that boarder water course and share right of reasonable use of water. Liable if one’s use unreasonably interferes with other’s use.
○ Prior Appropriation Doctrine: Water belongs initially to state, but right to divert it and use it can be acquired by individual (regardless of whether he is riparian owner).
§ Priority: Priority of beneficial use (including agriculture) is sufficient to create appropriation right. First in time, first in right usually applies.
• Groundwater (percolating water) beneath surface of Earth not confined to known channel: Surface owner is entitled to make reasonable use of ground water, but use must not wasteful.
• Surface waters (from rain, springs, or melting snow) not yet reaching natural watercourse or basin:
○ Common enemy rule: Surface water is common enemy and landowner may change drainage or make other improvements to combat water flow. No unnecessary harm to other’s land.

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Possessory rights

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Possessor’s Rights: possessor of land has right to be free from trespass and nuisance:
• Trespass: invasion of land by tangible physical object. To remove trespasser, bring ejectment action.
• Private nuisance: substantial and unreasonable interference with another’s use and enjoyment of land. Tangible invasion not required. Ex. Odors, noise.
○ Hyper-sensitive P: Super-sensitivity or specialized use does not lead to nuisance.

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Eminent Domain

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 Eminent Domain: government has Fifth Amendment power to take private property for Public Use in exchange for Just Compensation.
• Explicit takings: acts of governmental condemnation. Ex. Gov’t condemns private land for public highway.
• Implicit takings: Regulatory taking whereby governmental regulation has effect of a taking, even though it is not intended. Ex. Ban on residential development on lot you just purchased for that reason.
○ Burden: Must show that the regulation has worked ECONOMIC WIPEOUT of your investment.
○ Remedy: Government must either 1) Compensate owner OR 2) Terminate Regulation and Pay Damages that occurred while regulation was in effect.

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Zoning

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Zoning: Pursuant to its police powers, government may enact statues to reasonably control use of land.
• Variance: principle means to achieve flexibility in zoning. Proponent must show 1) undue hardship AND 2) that variance will not work detriment to surrounding property values. Granted or denied by Administrative Action, typically Zoning Board.
• Nonconforming use: A once lawful, existing use now deemed nonconforming by new zoning ordinance. Cannot be eliminated all at once unless just compensation is paid. Otherwise, could be deemed unconstitutional taking.
• Exactions: amenities that government seeks in exchange for granting permission to build. Ex. Town says you can build if you provide Public Park, streetlights, etc.

Scrutiny: To pass constitutional scrutiny, these exactions must be reasonably related both in nature and scope to impact of proposed development. If not, the exactions are unconstitutional.