Reading...
Play button
Play button
Use LEFT and RIGHT arrow keys to navigate between flashcards;
Use UP and DOWN arrow keys to flip the card;
H to show hint;
A reads text to speech;
154 Cards in this Set
- Front
- Back
|
Real Privity in Interest Rule
|
The person who is suing must:
1. Use her own name as Plaintiff 2. Have a legal right to enforce claim under applicable substantive law Exception - Fictitious name to protect against SERIOUS HARM P has burden of proof that she is real party in interest |
|
|
CAVEAT LESSEE
|
"Let the lessee beware"
|
|
|
Retaliatory Eviction
(Burden of Proof) |
Burden of proving retaliatory motive is on the tenant. Tenant must show the landlord:
1. Was discriminatory against the Defendant; AND 2. followed the tenants reporting of violations at the 1st opportunity The burden THEN shifts to the Landlord to prove PRIMARY motivation is NOT retaliatory Applies also to retaliatory rent increases |
|
|
Factors to Weight In Determining Unconsciuonability or Public Policy
|
- The extent to which the waiver interferes w/ housing code
- Type of property leased - Whether the waiver serves a reasonable business purpose and is a result of conscious negotiations -Whether the waiver is party of a boilerplate leased document -Whether the waiver imposes unreasonable burdens on a tenant who is poor and has unequal bargaining powers -Whether the parties were represented by counsel |
|
|
Tenants Remedies for Breach Implied Warranty of Habitability
|
Remedies:
1. Terminate Lease and receive damages 2. Continue lease and recover damages 3. Continue lease and use rent to repair (2x/yr) 4. Continue lease and withhold Rent 5. Use as defense against landlord action for Rent |
|
|
Constructive Eviction
|
Substantial interference with use and enjoyment of premises
Remedy - Eviction by Landlord - Tenant MUST VACATE in order to stop paying rent or receive damages Remedies of Eviction by others No remedy unless Landlord had duty not to permit nuisance or control common areas |
|
|
Types of Eviction
|
ACTUAL EVICTION - Total PHYSICAL EXPULSION or exclusion from possession of ENTIRE PREMISES
PARTIAL - PHYSICAL EXPULSION or exclusion from possession of PART of premises CONSTRUCTIVE EVICTION - Substantial Interference w/ USE AND ENJOYMENT or premises |
|
|
SUBLET
|
When a tenant transfer less that the entire remaining term of the leasehold
- Tenant becomes the landlord of the sublease - Sublesse is NOT in PRIVITY OF ESTATE or CONTRACT w/ Landlord and thus cannot sue Landlord or be sued by Landlord Tenant retains a REVERSION in property after transfer |
|
|
ASSIGNMENT
|
When a tenant transfer the entire remaining term of the leashold, he has made an assignment.
Puts T2 in Privity of Estate Compare to Sublet where T transfer less than the entire remaining term |
|
|
Impossibility of Performance
|
PERFORMANCE must be literally impossible or extremely difficult or illegal
Compare to FRUSTRATION OF PURPOSE where the purposes are frustrated but performance is still possible |
|
|
Fixture
|
Fixtures belong to Landlord
The fact question as to whether something is a fixture is one on the INTENT OF THE TENANT Objective Criteria: - Nature of Article - The manner in which it is attached - The amount of damage that would be caused by its removal EXCEPTION - Trade fixtures those installed for carrying on a trade or business (T liable for damage) |
|
|
Rights and Duties Related to Fixtures
|
COMMON LAW
Fixtures cannot be removed from the premises by the tenant. Fixtures become party of the realty and therefore the property of the Landlord Exception trade fixtures must be removed before ending of the lease MODERN TREND - Must be removed by end of term. Be very liberal in permitting the tenant to remove any chattel he installs on the leased premises, whether or not used in trade or business as long as substantial damage not caused |
|
|
Privity of Estate
|
Gives the landlord the right to sue the assignee of the tenant on the covenants in the lease, and to give the assignee the right to sue the landlord on her covenants
Compare to Privity of CONTRACTS - only binds T1 NOT T2 |
|
|
Frustration of Purpose
|
The tenant may terminate the lease in case of EXTREME HARDSHIP if the purpose of lease is frustrated
Requirements: 1. Frustated use must have been contemplated by the Landlord and Tenant as the use for which the premises were let 2. Frustration must be TOTAL or NEAR TOTAL imposing EXTREME HARDSHIP on the tenant 3. Frustating event must not have been foreseen or forseeable by the parties (of foreseeable risk on Tenant) |
|
|
Actual TOTAL Eviction
|
Physical Expulsion or exclusion from possession of entire premises
REMEDY Tenant may TERMINATE lease, pay no more rent and collect damages Remedy if eviction by others - if by person with paramount title - same |
|
|
Actual Partial Eviction
|
Physical expulsion or exclusion from possession of PART of premises
Remedies - Eviction by Landlord Tenant may stay in POSSESSION and PAY NO RENT until POSSESSION IS RESTORED If by a person w/ paramount title tenant may terminate lease and seek damages, or stay in possession and pay proportionate amount of rent |
|
|
Vertical Privity
|
The party suing or being sue succeeded to the estate of the original parties
First Restatement - BURDEN - run to an ESTATE OF THE SAME DURATION as owned by the original promisor BENEFIT - will run to assigns or ANY interest in the land Restatement of Servitude View Burdens and benefits or affirmative covenants run to persons who succeed to an estate of the same duration as owned by original parties. Special rules for lesser estates |
|
|
Horizontal Privity
|
A specified relationship existing between the ORIGINAL promisor and promise
Spencer's Case - Found privity where: 1. That they were landlord and tenant 2. They both had interests in the land 3. Promise was in conveyance of a term of years Restatement View - Privity satisfied by either a mutual relationship or a successive relationship Minority View - Horizontal Privity not required At COMMON LAW benefit of covenant could run without the covenanting parties being in PRIVITY OF ESTATE |
|
|
Covenants Intention of Parties
|
Intent usually expressed in the language of a deed at Common Law if the covenant PERTAINS TO A THING NOT IN BEING at the time the convenant is made will not bind assigns unless they are EXPRESSLY MENTIONED
|
|
|
REAL COVENANT
|
A convenant (promise) that runs with the land AT LAW
-Enforceable by successor owner of the promisee's land and -Enforceable AGAINST a successor to the promisor's land - Can get legal ($$) or Equitable (injunction or declaratory) - Gives rise to personal liability only (only $$ damages) Writing is required (at common law writing and seal) Covenant can not be implied or by prescription |
|
|
COMPARE
Covenant - Condition - Equitable Servitude |
Real Covenant: ENFORCEABLE BY AWARD OF $$ DAMAGES
EQUITABLE SERVITUDE: ENFORCEABLE IN EQUITY by injunction or specific performance Condition: FORFEITURE by breach |
|
|
EQUITABLE SERVITUDE
|
A covenant (promise) enforceable in EQUITY by or against successors to the land of the original parties to the contract
NOTE - If the plaintiff wants Equitable Relief the Plaintiff must show that the Covenant qualifies as equitable servitude |
|
|
Condition
|
Provides for forfeiture of the land upon breach of the condition
Ex - Fee Simple Determinable or Subject to Condition Subsequent |
|
|
Easement
|
An easement is a grant of a nonpossessory interest in land that entitles a person to USE the land.
AFFIRMATIVE (POSITIVE) EASEMENT - Owner has right to go onto the land of another (the servient land) and do some act on the land NEGATIVE EASEMENT - Owner can PREVENT the owner of the servient land from doing some act on the servient land |
|
|
Negative Easements
|
Grants the easement holder the right to PREVENT the servient owner from using the land in some way
Limited to Easements for light, air, subjacent or lateral support, and flow of artificial stream at Common Law New decisions may expand the list; solar, scenic, and conservation easements. Negative Easements CANNOT arise by prescription as prescription bars A CAUSE OF ACTION. Where Owner has no cause of action prescription does not apply |
|
|
Creation of Easements
|
EXPRESS GRANT - Easement granted to another CREATION BY PRESCRIPTION
EASEMENT BY RESERVATION - Reserved by grantor over the land granted CREATION BY IMPLICATION - Created by OPERATION OF LAW not by a written instrument (exception to state of frauds) |
|
|
Reservation
|
The regrant of a NEW EASEMENT not previously existing
Common Law Reservation cannot be made in favor or a 3rd party only for the true grantor. To reserve an easement for anyone else likely to be held void solved by 2 pieces of paper Modernly - (Minority) Easement for 3rd party - OK |
|
|
Exception
|
A provision in a deed that excludes from the grant some pre-existing right
|
|
|
Profit
(Real Property) |
AKA - "Profit a Prende"
Right to take something off another person's land that is part of the land or a product of the land. Example - Crops, timber, minerals, wild game, and fish Easement to go on the land and remove subject matter implied |
|
|
License
|
PERMISSION - to go on land belonging to the licensor
Plumber, delivery guy and party guests license revocable by licensor |
|
|
"One - Stock" Rule
|
When 2 or more person's own a profit in gross they must use the profit as one stock. Neither may operate independently of the other.
One owner can veto use by the other because consent of all is required. Example - Agree upon a rate of extraction of sand Applied when overuse of the easement may result in destroying the resource |
|
|
Creation by Prescription
|
Elements of Prescription (same as adverse possession)
- Open and notorious use; adverse and under a claim of right, continuous and uninterrupted throughout the requisite period |
|
|
Termination of Easement
by CHANGE OF CONDITIONS |
Not applicable to Easements
|
|
|
Termination of Easement
by Act of Servient Owner |
1. DESTRUCTION OF SERVIENT TENEMENT
An easement in a structure is terminated if the building is destroyed without fault if the owner of the servient tenant (1 state extinguishes Easement due to intentional destruction) 2. PRESCRIPTION - Interference with Easement in an adverse manner (such as blocking) elements of adverse possession apply owner of Easement must have an opportunity to demand easement and be refused |
|
|
Termination of Easements
|
1. Unity of Title
2. Act of Dominant Owner 3. Act by Subservient Owner 4. Change of Conditions 5. In accordance with its Express Terms |
|
|
Termination of Easement
by Act of Dominant Owner |
1. RELEASE - by written instrument (subject to Statute of Frauds). Reliance on oral release in which owner expends money estops owner from claiming Statute of Frauds
2. NON USE - Does not extinguish easement alone 3. ABANDONMENT - Owner of easement ACTS in manner as to indicate an UNEQUIVOCAL INTENT TO ABANDON Ex. Oral release or non use coupled w/ failure to maintain, blockage, or establishing, other Easements. 4. ALTERATION OF DOMINANT TENEMENT - If easement is granted for a PARTICULAR PURPOSE on an alteration of Dominant T makes it impossible to achieve purpose easement is extinguished 5 End of NECESSITY - Easement by NECESSITY - NECESSITY ends |
|
|
Easement by Prescription
|
1. OPEN & NOTORIOUS - w/out every attempted at concealment
2. UNDER CLAIM OF RIGHT and not with permission of landowner 3. Continuous - not necessity constant: just normal use 4. Uninterrrupted by owner's entry upon land, bring suit, or in some PROTEST PUBLIC EASEMENT BY PRESCRIPTION MAJORITY VIEW - if members of the public use the private land in a manner meeting the requirements for prescription MINORITY VIEW - Public cannot not acquire prescriptive rights in private property |
|
|
Easement Creation by Implication
|
Creation by OPERATION OF LAW not by a written instrument (exception to Statute of Frauds)
Very narrowly defined circumstances: 1. Intended easement based on APPARENT USE EXISTING at the time the servient tenement is separated from the Dominant tenemant; and 2. As easement by NECESSITY Must benefit a dominant tenement created by dividing a tract into 2 or more lots |
|
|
Easement in Gross
|
If the easement does not benefit the owner in the use and enjoyment of his land but merely GIVES HIM THE RIGHT TO USE THE SERVIENT LAND
Examples - Railroads right of way, gas pipe lines, and utility easements Commerical Easements: Primarily ECONOMIC BENEFIT rather than personal satisfaction |
|
|
"TOUCH AND CONCERN"
|
The covenant directly affects the party in the use and enjoyment of the property
|
|
|
Requirements for Burden and Benefit to Run at Law
(Covenants) |
BURDEN:
1. INTENT - Of contracting parties for successors to be bound 2. Must be (in some states) PRIVITY OF ESTATE between the original promisor and promissee, and assignee 3. Covenant must TOUCH & CONCERN the land 4. Subsequent purchases of Promises land must have NOTICE BENEFIT 1. INTENT of parties 2. Some form of PRIVITY OF ESTATE may be required 3. Benefit must TOUGH & CONCERN land owned by the promisee |
|
|
Equitable Servitudes
|
A covenant - whether or not running with the land at law - that EQUITY will enforce against assignees of the burdened land who have NOTICE of the covenant
Usually an INJUNCTION against violation of Covenant Equitable Servitude will be IMPLIED no writing required In most states no PRIVITY OF ESTATE is required Must TOUCH & CONCERN land and have NOTICE (BFP) |
|
|
Prima Facie Case for
Violation of Fair Housing Act |
1. P is a member of a STATUTORILY PROTECTED CLASS
2. She applied for and was QUALIFIED to rent the designated dwellings 3. Was denied the opportunity to inspect or rent dwelling; and 4. Housing opportunity remained available for others Shifts burden to Defendant to produce evidence that refusal to rent was by legitimate considerations |
|
|
Types of Tenancies
|
1. TENANCY FOR YEARS - Fixed period with beginning and ending date (may be less that 1 yr)
2. PERIODIC TENANCY - Period to period (ie month to month) until notice of termination is given 3. TENANCY AT WILL - No state duration, continues until landlord or tenant desire an end 4. HOLD OVER TENANCY (OR TENANCY AT SUFFERANCE) Tenant remains after end of tenancy |
|
|
Landlord Liability for Torts
|
Landlord not generally held liable for torts unless the tort is;
-Related to a CONCEALED DANGEROUS condition -Common Areas -Public Use; or -Landlord has statutory or contracting duty to repair |
|
|
Tenant's Duties
|
1. Tenant MUST PAY RENT
2. Tenant has a duty to NOT DAMAGE premises beyond FAIR, WEAR AND TEAR 3. Not to disturb other tenants Tenant's duties may be INDEPENDENT of Landlord's duty |
|
|
Differences between leases, licenses, and easements
|
Most likely a lease if:
1. Lease can be oral where an easement is subject to the statute of frauds and requires WRITTEN instrument 2. Only a tenant has POSSESSORY INTEREST in land and can thus bring a possessory action such as ejectment, trespass, or nuisance. Holder of easement or license must bring a different kind of action |
|
|
Landlord's Duties
|
In most Jurisdictions Landlord has a duty to;
-Deliver possession at beginning of the lease; -Not to interfere with tenants QUITE AND ENJOYMENT -To provide HABITABLE PREMISES (no duty at common law) modernly found via an express warranty, implied covenant, or statutory duty |
|
|
RAP
Exception Class Gift |
A gift to a class is NOT VESTED in a any member of the class until the interests of all its members are identified (Ascertained) and ALL CONDITION PRECENDENT have been satisfied
|
|
|
RAP
Validating Life |
AKA - Measuring Life
Person in being when the future interest is created who enable you to prove the interest will vest or fail during that person's life, or at that person's death, or within 21 years after that person's death Must be a person who can affect vesting of the interest (relevant life) |
|
|
Remote Possibilities
under RAP |
FERTILE OCTOGENARIAN - Law conclusively presumes that a person can have children so long as the person is alive. Evidence of age or that they have has a hysterectomy or vasectomy irrelevant.
UNBORN WIDOW - The law assumed that a person's surviving spouse may turn out to be a person not yet alive SLOTHFUL EXECUTOR - Bequest to vest "when my estate is settled" or "my executor appointed" violates RAP because it may not happen for decades |
|
|
Rule Against Perpetuities
(RAP) |
No interest is good, unless it must vest, if at all, not later than 21 years after some life in being at the creation of the interest
Applies to FUTURE INTERESTS including both CONTINGENT REMAINDERS and EXECUTORY INTERESTS but NOT to vested remainders or future interests of grantor (ex- Reversion, right of reentry, possibility of reverter) Whatever is left after striking out words is given affect as written RELEVANT LIVES IN BEING - persons who can AFFECT VESTING of interest An interest is VOID under RAP if by ANY POSSIBILITY, however remote, the interest might vest BEYOND PERPETUITIES PERIOD |
|
|
RAP
Pre-Emptive Options |
Gives the optionee the RIGHT OF FIRST REFUSAL if the owner desires to sell
If pre-emptive option can be exercised beyong the perpetuities period most courts hold it voidOption in tenant to renew lease or purchase property not subject to RAP because encourages improvement and increases marketability CONDOMINIUM EXCEPTION - Association right to buy |
|
|
RAP
Option Contracts |
An option is void if it is possible to exercise the option more than 21 years after some life in being at its creation
Is comparable to a CONTINGENT FUTURE INTEREST Reasoning: Options make land unimprovable and inalienable |
|
|
Uniform Statutory Rule Against Perpetuities
(Options) |
Adopted in about 1/2 of all states exempts OPTIONS form RAP
Options may endure forever unless subject to RULES AGAINST UNREASONABLE RESTRAINT ON ALIENATION |
|
|
RAP
Cy Pres Doctrine |
Cy Pres - French for "as near as possible"
Adopted in a handful of states An invalid interest in REFORMED withing the limits of the rule, to approximate, most closely, the intention of the creator of the interest Court can change contingencies or make other appropriate change to reform valid interest |
|
|
RAP
Wait - and - See Doctrine |
The validity of interests is judged by ACTUAL EVENTS as they happen, and not by possible events that might happen. Validity not determined at the time the interest is created
-Some state wait out the Common Law Perpetuities period -Uniform Statutor RAP calls for waiting 90 years. If the contingent interest satisifes the what might happen test or actually vests it is valid Competent Lawyer should draft doc that meets common law rule |
|
|
Possibility of Reverter
(RE: RAP) |
A possibility of reverter cannot be created in any transferee - neither a grantee in a deed nor devisee in a will
|
|
|
RAP
Charity to Charity |
If there is a gift to charity A followed by a gift to Charity B of a specified event happens, the Executory Interest in Charity B is EXEMPT from RAP
Exception applies ONLY if both the possessory estate and the future interest are in charitable organizations "Charities are favorites of the law" |
|
|
RAP
Executory Interests |
An Executory Interest following a determinable fee or divesting a fee simple vests only when the condition happens and it becomes a posessory estate
|
|
|
RAP
Marketable |
Able to be SOLD
|
|
|
RAP
ALL OR NOTHING RULE (Class Members) |
If the gift tyo one member of a class might vest TOO REMOTELY the WHOLE CLASS gift is VOID
|
|
|
Short - Term Lease Exception
|
Common law - all leases must be in writing except a lease for THREE (3) YEARS OR LESS
MODERNLY BY STATUE - Reduces short term leases exception to 1 year An oral lease for more than one year create only a tenancy at will Some state have NO short term lease exception |
|
|
Shifting Executory Interest
|
A future interest in a grantee that divests a preceding estate in another grantee prior to its natural termination
Shifts from 1 GRANTEE to another GRANTEE |
|
|
Springing Executory Interest
|
A future interest in a grantee that SPRINGS OUT of the GRANTOR as a date subsequent to the granting of the interest, divesting the grantor
Springs for GRANTOR |
|
|
Vested Remainder
|
A remainder that is both created in an ASCERTAINABLE person AND is NOT SUBJECT TO ANY CONDITION PRECEDENT
|
|
|
Contingent Remainder
|
A remainder that is EITHER created in an UNASCERTAINED person OR is SUBJECT to a CONDITION PRECEDENT
|
|
|
Vested Remainder Subject to Open
|
Vested in a CLASS or persons
"Open" - more people can be added to class. Shares not yet fixed For purposes or RAP- grantees are considered unascertained and thus unvested until ALL possible members of class has been ascertained |
|
|
Indefeasibly Vested Remainder
|
Holder of the remainder is CERTAIN TO ACQUIRE a possessory estate at some time in the future and entitled to retain permanently thereafter
|
|
|
Indefeasible
|
Cannot be canceled or made void
|
|
|
Vested Remainder
(Grady Definition) |
A remainder is vested in A, when throughout its continuance, A or A and his heirs, have the right to immediate possession, whenever and however the preceding freehold estate may determine
|
|
|
Remainder
|
A future interest created in a grantee that is capable of becoming a present possessory estate on the expiration of a prior possessory estate created in the same conveyance which the remainder is created
|
|
|
Vested Remainder Subject to Divestment
|
Either:
1. Vested subject to being divested by the operation of a CONDITION SUBSEQUENT 2. Vested subject to divestment by an INHERENT LIMITATION of the estate in remainder |
|
|
3 Types of Vested Remainders
|
1. Indefeasible Vested Remainder
2. Vested Remainder Subject to Open 3. Vested Remainder Subject to Divestment (Complete Defeasement) |
|
|
Remainders Contingent vs Vested
|
CONTINGENT
- Created in an UNASCERTAINED person; or - Subject to CONDITION PRECEDENT expressed in the instrument VESTED - Created in an ASCERTAINED person; AND - NOT SUBJECT to CONDITION PRECEDENT |
|
|
Surplusage
|
Language that merely refers to the termination of the preceding estate (does not create a condition precedent)
|
|
|
Destruction of Contingent Remainders
|
Contingent Remainders are destroyed is not vester at time of termination of preceding estate
Example - "To A for life, remainder to A's children who reach 21" Result - Property reverts back to grantor is A has no children who are at least 21 at time of her death MODERN RESULT Property reverts to GRANTOR; A's children have indestructible contingent remainder or an Executory Interest Abolished in most states |
|
|
Rules Restricting Remainders
|
Destructability of Contingent Remainders
- Rule in SHELLEY'S CASE - Doctrine of WORTHIER TITLE Have been abolished in most states |
|
|
PRIMOGENITURE
|
Doctrine that "heir" refers to the FIRST BORN thus can only have 1 heir No such thing as "HEIRS"
|
|
|
Doctrine of Merger
|
A life estate in A or a remainder in A will merge unless:
1 There is an intervening estate; OR 2. The remainder in A is subject to condition precedent to which his life estate is not subject |
|
|
Rule in Shelley's Case
|
If ONE INSTRUMENT CREATES A FREEHOLD in land in A, and PURPORTS TO CREATE A REMAINDER in A's heirs and THE ESTATES ARE BOTH legal or BOTH equitable then the remainder becomes a remainders in fee simple in A
Rule has been abolished in most states |
|
|
Co-Tenant Duties
Natural Resources |
A co-tenant is accountable for profits derived from a use of land that permanently reduces its value
MINERALS - Co-tenant must pay a proportionate part of the net amount received to her co-tenants FARMING - Fair rental value not profits TIMBER - Some courts can only cut own share. Other courts must have consent to cut at all |
|
|
Tenancy in Common
|
No right of survivorship - upon death to heirs and devisees
A form of concurrent ownership wherein each co-tenant is the owner of a separate and distinct shar eof the property. Each owner has a separate and undivided interest in the whole Same type of estate not necessary Fully Inalienable Each tenant has the common right to possess and enjoy the entire property Equal Shares not necessary |
|
|
Presumption of Tenancy in Common
|
MODERNLY: Whenever a conveyance is made to 2 or more person who are not spouses, they are PRESUMED to take as tenants in common and not as joint tenants
Presumption can be overcome by evidence that a joint tenancy was intended |
|
|
Approach to Concurrent Ownership
|
Types of concurrent Interest
Rights and duties of co-tenants |
|
|
Forms of Concurrent Ownership
|
Tenancy in Common - 2 or more persons own the property with NO right of survivorship between then; when 1 tenant in common dies, her interest passes to heirs or devisees
JOINT TENANCY - 2 or more person own the property with a right of survivorship. When 1 joint tenant dies the survivor(s) takes all 4 Unities (PITT) TENANCY BY ENTIRETY - Exists only between spouses with right of survivorship that cant be severed without consent of both spouses |
|
|
4 Unities
|
POSSESSION - Each joint tenant must have right to possession of whole
INTERESTS - Must be equal in an estate of one duration TITLE - All joint tenants must acquire title by same deed or will or by joint adverse possession TIME - Interest of each joint tenant must vest at the same time |
|
|
Joint Tenancy
|
A form of concurrent ownership where in each co-tenant owns an undivided share or property and the surviving co-tenant has the right to the whole world (Real or Personal)
Can be created by deed or will or joint adverse possession (not by intestate succession) 4 Unities - Possession, Interest, Time, and Title |
|
|
Creation of Joint Tenancy
|
COMMON LAW - PRESUMED that any conveyance or devise to 2 or more persons (other than husband and wife) created Joint Tenancy
Husband and wife presumes to take as tenants by entirety MODERNLY - Common Law abolised new Tenants in COmmon as to Husband and wife EXECUTORS AND TRUSTEES - Joint Tenants |
|
|
MESNE PROFITS
|
Reasonable value of the USE of the land, not the profits actually made
An ousted co-tenant can sue for Mesnes Profits |
|
|
Ouster
|
In a jurisdiction following the majority rule: if 1 co-tenant ousts another co-tenant, she must PAY the ousted co-tenant his share of the reasonable rental value of the property
Ouster - an act by 1 co-tenant that deprives another co-tenant of the right to POSSESSION |
|
|
Possession by 1 Co-Tenant
|
1 Parties may agree among themselves
2. Accounting for reasonable rental value by possessor may: Majority = If not ousted by A, A is entitled to use and occupy every part of the property without paying any amount to B. Recovery by B is ousted A agreed to pay B or fiduciary relationship to B A must bear the ordinary expenses of upkeep Min: A must account to B for B's share of proper net reaSonable rental value minus expense or upkeep |
|
|
Accounting for rents received from 3rd party
|
Any rents or other income collected by a co-tenant from a 3rd party must be shared equally with the other co-tenant if the income exceeds the collecting co-tenants proportionate share
Collecting Co-tenant must account for the net amount received not for the reasonable rental value of property bring suit for accounting or wait and demand in partition act |
|
|
Spendthift Trusts
|
Trust in which settlor imposes a valid restraint on alienation, providing that the beneficiary cannot transfer his interest voluntarily and that his creditors cannot reach it for satisfaction of their claims (Applies to equitable interests)
(Most states) - may be reached by spouse and children in some states Cannot make a self settled spendthrift trust |
|
|
Constructive Trusts
|
In property cases a court may impose a constructive trust on party to hold property to which he has legal title for the benefit of another person
Judicial remedy to prevent fraude or unjust enrichment |
|
|
Undivided Loyalty (Trusts)
|
Trustee owes beneficiaries UNDIVIDED LOYALTY
Trustee must reap NO personal advantage and must not put himself in a possible conflict of interest Cannot BORROW trust funds or buy trust assets Self Dealing in any form is absolutely prohibited (Good faith or actual benefit irrelevant |
|
|
Prudent Investor Rule
(Trusts) |
Duty of making trust property PRODUCTIVE
-Duty to invest in prudent fashion -Receive a reasonable return of income Investing trust assets, trustee must exercise that degree of care, skill, and prudence as would be exercised by a reasonably prudent person in managing her own property In most states MUST DIVERSIFY ("Imprudent to keep all eggs in one basket") |
|
|
RAP
What -Might- Happen- Is Test |
If there is ANY POSSIBILITY that a contingent interest will vest too remotely the contingent interest if void for the outset
(Common Law) |
|
|
Trustee
|
Any person w/legal capacity (Settlor, Beneficiary, or 3rd party) - entitled to fees for managing property (fee can be waived)
POWERS - To manage property in same manners as an intelligent person would manage her own property DUTIES - Highest standards of conduct If breached personally liable - PRUDENT INVESTOR RULE - applicable - UNDIVIDED LOYALTY - owed to beneficiary |
|
|
Trust
|
A fiduciary relationship with respect to property in which one person, the trustee, holds the LEGAL TITLE to property subject to EQUITABLE RIGHTS in BENEFICIARIES
Created by written instrument, naming the trustee, specifying rights of the life beneficiaries and the remaindermen, setting forth powers of trustee. Must also deliver property for trustee to manage Settlor - one who makes the trust |
|
|
Easement Appurtenant
|
Involves 2 adjacent lands where one is being used to the benefit of the other
Compare to easements in GROSS |
|
|
USE Variance
|
Permits a use prohibuted in the district if considered destructive of the master plan than BULK variance
In some state use variance cannot be granted by BOARD OF ADJUSTMENT of is held to higher standard of proof of no reasonable harm |
|
|
Trespass
|
Actionable invasion of a possessors interest in EXCLUSIVE POSSESSION OF LAND
Standard for Relief An INTENTIONAL or NEGLIGENT unprivileged PHYSICAL INTRUSION Remedy Damages for past conduct and injunction against future trespass |
|
|
Nuisance
|
Actionable invasion of possessors interest in the USE AND ENJOYMENT of land
Standard for Relief INTENTIONAL, RECKLESS, NEGLIGENT, OR ABNORMALLY DANGEROUS CONDUCT: Unreasoable interference and substantial injury Remedy Damages for past conduct or permanent damages for future conduct or injunction |
|
|
Intentional Nuisance
|
Any intentional invasion of an interest in the priate use and enjoyment of land is UNREASONABLE and there fore a nuisance if the GRAVITY OF THE HARM outweighs the UTILITY OF THE ACTOR'S CONDUCT. (If harm is not serious and D can AFFORD TO PAY may still be a nuisance)
Must continue over time and BE KNOWN to interfere w/enjoyment of land |
|
|
Nuisance
Gravity of Harm - Factors to be considered |
1. Extent of Harm
2. Character of Harm 3. Social Value of Use and Enjoyment 4. Suitability to locality 5. Burden of avoiding harm |
|
|
Nuisance
Utility of Conduct |
1. Social Value of Conduct
2. Suitability for locality 3 Impracticability of avoiding |
|
|
Nuisance Damages
|
Damages for past conduct, permanent damages for future conduct or injunction
|
|
|
Nuisance
Types of Unreasonable Interference |
1. Character of the Harm: Depreciation, discomfort, or fear of harm
2. Character of the neighborhood 3.Social Value of conflicting uses 4 Priority in Time - "Come to the nuisance" |
|
|
Public Nuisance
|
Widespread in its range or indiscriminate in its effects
SUBSTANTIAL HARM caused by INTENTIONAL and UNREASONABLE conduct or by condct that is negliglent or abnormally dangerous Usuaul enforced by Attorney General Private individual may sue for Public Nuisance if: 1. Nuisance is SPECIFICALLY INJURIOUS to her and 2. Damage is of a DIFFERENT KIND Special Injury gives STANDING to suit |
|
|
Condomuniums
|
INDIVIDUAL OWNERSHIP (in feed simple) of individual unites organized w/common areas (tenants in common) w/ mutual rights and obligation
Easement - For support and entrance. No right to partition Covenant - To pay fee to Association equivalent to Proportionate Interest in Common Areas Tort Liability equal to proportional interest Created by declaration of Condominum or Master Deed -All owners are member of association -Managed by members or professional manager Rules of conduct must be REASONABLE original rules presumptively valid Restraint on alienation must be REASONABLE means of accomplishing valid objective |
|
|
Right to Support of Land
|
Lateral Support - from adjacent land
Subajacent Support - From underlying strata Lateral Support - STRICTLY LIABLE if one changes his land so as to withdraw support from her neighboer and cause neighbor's land to slip or fall SUBJACENT SUPPORT - when mineral rights are severed 1. Mineral owners must support the land with buildings existing when rights are severed 2. Damages to SPRINGS AND WELL but not water sources of neighbors |
|
|
Right to Lateral Support
|
Support land recieves from adjacent land
Landowner is STRICTLY LIABLE if change land use so as to withdraw lateral support from neighbor and cause neighbors land to slip or fall No defense that acted with utmost care and not negligently Retaining Walls - If builds a retaining wall to support the adjoining parcel, she and her successors in interest have the duty thereafter to MAINTAIN THE WALL Support of buildings Majority - Land only Minority View - Buildings and land Water - liable to damages to springs and wells but not neighbors |
|
|
Inverse Condemnation
|
An action brought by an owner against a governmental body having the power of eminent domain
Purpose is to receive the value of property that in effect has been taken by government, although no formal exercise of the power of Eminent Domain has occurred Can apply only to government unites may be an EASEMENT |
|
|
AIRSPACE NUISANCE
|
SUBSTANTIAL INTERFERENCE that is unreasonable as measured by the sensibilities of an average person
- If overflights interfere with an uncommon or ultrasensitive use of land (e.g. Milk farming) they might not be actionable |
|
|
Solar Enjoyment
(Nuisance) |
Courts Split
Solar Panels Upheld Swimming Pool and garden not upheld |
|
|
Private Nuisance
|
Conduct that causes SUBSTANTIAL INTERFERENCE with the private use of land and it either:
1. INTENTIONAL AND UNREASONABLE; OR 2. UNINTENTIONAL BUT NEGLIGENT (reckless or resulting from an abnormally dangerous activity) - Must have a PROPERTY INTEREST that is affected; or - Allege bodily harm as a result of activities complained of ECONOMIC ANALYSIS key consideration of Nuisance |
|
|
Reciprocal Negatives Servitudes
|
Not applicable in CA
Similar to a reciprocal negative easement Reciprocal - similar convenant binds other lots Negative (Restrictive) - Forbidding some use of land easement - an interest in land |
|
|
Profit
|
Right to take part of the land or a PRODUCT of the land of another (Examples: Timber, sand, rocks, water, fruit)
WRITING REQUIRED Termination: (Same as easement) -Express Terms -Unity of Title -Release -Abandonment -Alteration of Dominant Tenemant -Prescription -Change of Condition |
|
|
License
|
PERMISSION to go on another's land
Examples: Electrician, Party Guest, Plumber Writing NOT REQUIRED Note: An INVALID ORAL EASEMENT is a license Termination - Usually revocable at will. May be irrevocable if couple with an interest or if lisensor estopped by licensee expenditures |
|
|
Real Covenant
|
Promise to do or not do something on the land or related to the land
Example: D convery as adjoining parcel to A, A promises not to build a swimming pool on the property Writing required: Exception Implied from General Plan Termination -Merger -Estoppel -Hardship -Change of Conditions -Abandonment -Eminent Domain May be entitled to damages at law (Legal) |
|
|
Termination of Covenants and Servitudes
|
1 Merger - when title to land benefited and title to land burdened come into hands of same person - Merge to Fee Simple
2. Equitable Defenses to Enforcement - Estoppel, Change of Condition in neighborhood, relative hardship (May still be entitled to damages by law (legal)) 3. Abandonment 4. Eminent Domain - Gov Must pay for lost benefit as well. Generally calculated as value with benefits minus value without benefit |
|
|
Unintentional Act Giving RIse to Nuisance
|
When the conduct in question is reckless or negligent or involves or involves ABNORMALLY DANGEROUS activities
Very uncommon - Example Storage of Dangerous |
|
|
Nuisance Per Se
|
An activity that is a nuisance no matter how reasonable the D's conduct
|
|
|
Nuisance in Fact
|
An activity that in unreasonable under particular facts
|
|
|
Rights in Airspace
|
Noisy flights as INVERSE CONDEMNATION
- Gov body must be sued - Neighboring Landowners may not have right few courts have permitted that NOISE constitutes a PHYSICAL INVASION (Maybe an Easement) Noisy Flight as a NUISANCE 1. Injunction not availabnle 2. Neighbor landowner may receive 3. Nongovernmental D permitted About ENJOYMENT AND USE |
|
|
Cooperatives
|
A corporation holds legal title to an apartment building. Shares of stock are sold to the persons who will occupy the apartments; the amount of stick required to live in the building depends on the value of the unit.
Occupants recieve leases long term or short, renewable terms, both tenants and owners of the corporation. Occupants liable for mortgage payments Preemptive options often upheal May term lease if tenant fails to pay or violates rules of conduct |
|
|
Equitable Servitude
|
A convenant - whether or not it runs with the land at law - that EQUITY will enforce against assignees of the burdened who have notice of Covenant.
Negative Covenant - Not to do something (Burden) Affirmative Covenant - To do something 1. Must be in writing (Except Negative Servitude implied from general plan) 2. Assignee must have NOTICE of covenant 3. Must TOUCH AND CONCERN (modernly REASONABLESNESS) If an affirmative convenant imposes a substantial burden on property which recieves no benefit from it and fetters the land in perpetuity. A court may find it does not TOUCH AND CONCERN |
|
|
Equiatble Servitudes
Burdens Rationale (Covenant w/ Benefit in Gross) |
Rationale:
1. Where a burden DEVALUES land, public policy requires an accompany benefit to other land, resulting in a net increase in land value 2. Where the benefit is in gross, finding the owner or owners to but them out is more difficult than when the benefit is in the owner of the neighboring land |
|
|
Easement
|
A grant of an intent in land that allows someone to use another's land
Writing generally required except by: Implication, Necessity, and Prescription Termination by -Express terms -Unity of Title (merger) -Release Abandonment -Altercation of Dominant Tenemant -Prescription -Change of Conditions |
|
|
Challenges to Zoning Ordinance
|
Ultra Vies - Ordinance is beyond the authority of zoning body and therefore void. Look enabling act
Federal Due Process -Procedural - Notice and Opportunity to be heard -Substantive - Rational Relationship to permissable state objective State Due Process (Substantantive) - more than Fed Law Fed Equal Protection - Zoning has purpose or inent to discern Fed Takings Clause - Property taken without JUST COMPENSATION Federal Due Process (Procedural) |
|
|
Federal Due Process
(Procedural) |
An argument that the zoning ordinadance was improperly adopted. If the zoning action was administrative affecting only one, or in some states a few parcels of land, the landowner must be NOTIFIED and given an OPPORTUNITY to BE HEARD
|
|
|
Ultra Vires
|
An argument that the zoning ordinances if beyond the authority of the zoning body and therefore void.
Must look to ENABLING ACTY adopted by state: states may delegate this aspect of their police power |
|
|
Fed Due Process
(Substantive) |
An argument that the ordinance is not reasonable and so is invalid
Unless a fundamental right is involved (an it seldom is) the zoning action need only bear a RATIONAL RELATIONSHIP TO A PERMISSIBLE STATE OBJECTIVE, such as health, safety, and welfare concerns Almost every zoning action will ass this standard |
|
|
State Due Process
(substantive) |
Similar to Fed Due Process, but may states required MORE than is required under Federal Law and might find a rational ordinance unreasonabnle
|
|
|
Federal Equal Protection
|
An argument that the zoning action has the purpose or intent to DISCIMINATE
Most zoning actions will be tested under the reational relationship test and will be upheld Discriminatory RESULT not enough |
|
|
Federal Takings Clause
|
An argument that the zoning action has TAKEN property without JUST COMPENSATION
Most zoning actions will not constitue a taking 1. It has no RATIONAL RELATIONSHIP to a permissable state objective 2. Operates by reference to a SUSPECT CLASS and cannot be justified by a COMPELLING STATE INTEREST |
|
|
Zoning Hierarchy of Uses
|
Single Fam Housing
2 fam housing Multi Fam Housing Commercial Use Light Industrial Use Heavy Industrial Use |
|
|
Source of Zoning Power
|
ENABLING ACT
Zoning ordainances usually enacted by a city of a county to apply to land within its total jurisdiction - state legislature is SOVERIEGN. All zoning ordinances must confirm to ENABLING ACT unless its ULTRA VIRES and therefore is VOID Legislature may delegate poer to an administrative body only if it lay down standards to govern the exercise of power. Delegation without standards is improper |
|
|
Ultra Vires
|
Beyond the authority of the governing body
|
|
|
Variance
|
Enabling act provides for a BOARD OF ADJUSTMENT:
1 Must prove that restrictions cause the owner PRACTICAL DIFFICULTY or UNECESSARY HARDSHIP 2 Runs with the land to successive owners 3 Applicant may need to meet certain condition Distinguish BULK for USE variance Bulk more likely to be approved |
|
|
Administration of Zoning Ordinance
|
ENABLING ACT requires that zoning ordinance be made in accordance with a COMPREHENSIVE PLAN
Plan does not become legal untuil made an ordinance Zoning ordinances without plans usually ok AMENDMENTS to plan generally presumed VALID -Most show strong evidence of MISTAKE or SUBSTANTIAL CHANGE in condition -Show Public NEED best served by chaning this parcal not that Variances - Enabling acts provide for a BOARD of ADJUSTMENT -Restrictions cause owner PRACTICAL DIFFICULTY or UNNECESSARY HARDSHIP -Distinguish BULK from USE |
|
|
Zoning Ordinance Special Exception
|
Allowable where certain condictions are met
Theory that certain uses can peacefully coexist Ex - Zoning ordinance specifies that a nursery school is permitted in a residential district is adequate off street parking is product and no more than 30 students are enrolled |
|
|
Non Euclidean Zoning
|
Contract Zoning
Density Zoning Floating Zones Planned Unit Development By Referendum |
|
|
Contract Zoning
(Non Euclidean Zoning) |
City agrees to zone a particular tract of owner CONTRACTS to restrict the use in a certain way
Eg City will rezone for light industrial if owner erects a buffer zone |
|
|
Density Zoning
(Non Euclidean Zoning) |
Ordinance focuses on overall density of an area rather than having lot size restrictions
Eg - Small lots permitted, but more land is set aside for parks |
|
|
Floating Zones
(Non Euclidean Zoning) |
Zoning ordinance establishes a zone (eg light industrial) but does not assign it to a particular location intil a landowner requests reclassification to the zone
|
|
|
Planned Unit Development
|
Owner of a large tract of land is allowed to mix uses as long as overall density limits are not exceeded
|
|
|
By Referendum
|
Rejoining (usually for multifamily dwellings) IS ALLOWED only by public referendum (vote)
|
|
|
Adult Entertainment
(Zoning) |
Upheal as serving a SUBSTANTIAL GOVERNMENT INTEREST (abatement of Crime) while allowing REASONABLE ALTERNATIVES for places of adult entertainment (OUTSKIRTS)
Some content of speech issues may arise |
|
|
Zoning of Religious Establishments
|
Religious land use and Institutional Persons Act (RLUIPA)
Prohibits the following: 1 Land use regs that impose substantial burdens on religions exercise unless government demonstrates a COMPELLING state interest through LEAST RESTRICTIVE MEANS 2UNEQUAL treatment relative to non religious institutions 3. Total exclusing of religious instritution from Jx No decisive determination tyo date |
|
|
Zoning for Advertising Signs
|
May be prohinited in residential areas where they might be harful to the quiet and tranquility sought
POLITICAL ADS - Enjoy substantial 1st amendment freedon but still relatively undecided CONTENT NUETRAL issues may arise |
|
|
Zoning for Aesthetics
|
Old Doctrine - Zoning scheme dealt w/ NUISANCE (Sight not actionable be not substantial or tangible
NEW DOCTRINE - Prohibited use offends the sensibilities of the AVERAGE PERSON and tehnds to DEPRESS PROPERTY VALUES Architectural Review Boards to determined if new buildings "comforn to the existing character of th eneighborhood and not cause a substantial depreciation in neighboring property valies" even when not necessarily UNIFORM neighborhood |
|
|
Purposes of Zoning
|
1. Aethetics
2 Advertising Signs - Political Ok Commercial More Scrutiny 3 ADULT ENTERTAINAINMENT - Affords 1st amenment protetion by susbtsantial gov interest and reasonanle alternatives to mitigate crime 4 Religious Establishments - 1st amendment protection 5 PRESERVATION - Historic Districts Ok Individual Landmarks - taking Open Space - Ok Not total taking though of little Economic Value |
