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139 Cards in this Set

  • Front
  • Back
Types of Estates
1. Tenancy in common
2. Joint tenancy with a right of survivorship
3. Tenancy by the entirety
Tenancy By the Entirety
Special tenancy held by a married couple that carries right of survivorship.

-requires "4 unities plus UNITY OF HUSBAND AND WIFE"

-each spouse owns the whole estate

-arises presumptively (in some states in any conveyance made to a hasband and wife)

-one spouse cannot convey any interest independently

--both spouses must join in a mortgage and on espouse alone cannot encumber the property

**IN TN a creditor of one spouse can foreclose on property held in tenancy by the entirety to obtain the debtor-spouse's interest. i.e. right of survivorship.
BUT
for the creditor to succeed to the estate, the debtor-spouse must outlive the other tenant by the entirety.
Tenancy by the Entirety--how is it terminated
-death of a spouse
-divorce
-mutual agreement
-execution by a creditor of BOTH spouses.
Joint Tenancy--Definition
Each co-owner own an undivided interest in the whole, with
1. a right of survivorship
AND
2. right to partition
-shares must be equal
JT--Elements
"4 Unities"

TIN POT
1. Unity of TITLE created by SAME instrument (deed or will)
2. Unity of INTEREST (same duration and same identical interest e.g. fee simple or life estate)
3. Unity of POSSESSION(each tenant has the right to possession of the whole)
4. unity of TIME (all tenants must make their interests at the same moment)

If any one of these elements is missing, then there is a tenancy in common--not a joint tenancy

key difference is the right to survivorship--if a joint tenant dies, then his/her share passes to other joint tenants
JT--Rights of Co-Owners
-cannot transfer their interests by will or intestate law
-can sever without consent from another joint tenant--only while he is ALIVE
-right to partition DELFINO v. VEALENCIS
JT--how terminated
1. Partition--Voluntary
2 Severance--Involuntary
$ Partition
An action by where a JT or a T in common can terminate the Cotenancy and have the property either physically divided up among the Ts[partition in kind] or sold[partition sale]

T in the entirety is not severable by partition

Ts can agree not to partition and if the agreement has reasonable purpose and duration, then it will be upheld

but if inequitable, will be an invalid restraint on alienation.

-usually used when the parties cannot com to an agreement among themselves as to the property
JT--Ways to destroy by severance
1. Conveyance--
2. Mortgage
3. Contract of Sale
4. Creditor's Sale--judgment lien not enough must be an actual judicial sale.

--When there are more than 2 joint tenants and a severance occurs, the severance is only effective to the extent of the interest cut off.
$ JT--Severance--Conveyance
$ one JT's transfer of his interest creates a severance that destroys ONLY the seller's joint tenancy, creating a tenancy in common with the buyer.

the other JTs continue to hold their interests in joint tenancy.
JT--Terminated--Mortgage
Title theory--mortgagee takes title in the property-->TN is title theory
Lien Theory MAJORITY--Mortgagee has a lien on the property--not a title-->therefore not severed
JT--Terminated--Contract
doctrine of equitable conversion--the execution of a K gives the buyer equitable ownership and converts the seller's legal ownership into a K right to receive the selling price thus the unity interest is severed, and so is the joint tenancy
JT--Terminated--Lease
common law--destroys the JT b/c destroys the unity of interest
modern rule--doesn't destroy
Tenancy in Common aka default tenancy
joint tenancy without right to survivorship--when a CoT dies, her interest passes to her devisees or her heirs

-each coT owns an undivided, SEPARATE and DISTINCT share of the property

One unity required--Possession--all tenants must have equal rights of POSSESSION

-Right to Partition
-NO right of survivorship
Tenancy in Common v. Joint Tenancy--policy reason
courts DISFAVOR joint tenancies
Tenancy in Common--Rights
1. can sell, devise, give or otherwise dispose of her undivided share in the same manner as if she were the sole owner of the property
2. each tenant has a right to possess and enjoy the entire property
3. Right to Exclude
4. Right to Partition
5. Right to accounting[any rents or income must be distributed evenly among the cotenants]
$ Rights and Duties of CoTs--Right to Accounting
one COT does not have to account to another COT for share of profits unless:

1. Ouster
2. Agreement to share
3. Lease of the property by CoT to a 3P
3. Depletion of natural resources i.e. can't sell oil, coal, etc.
$ Ouster-->Def/Remedies
an act by one CoT that deprives another cotenant of the right to possession OR claims exclusive possession.

Remedies--bring suit to collect his share of reasonable rental value or a suit to partition the property[Mesne Profits]

--ousted tenant could also sue to regain possession ???
JT--right of contribution
contribution available for any mortgage on the property (if signed by all cotenants) OR

any governmentally imposed obligation (e.g. taxes, assessments, sewers, etc.)
JT/Tenancy in Common--Contribution--liability for Repair and Improvement
exception
a cotenant who pays for repairs/improvements on common property is not entitled to contribution from other cotenants, absent a prior agreement
EXCEPTION--upon partition, a cotenant who makes reasonable repairs or improvements is entitled to receive a credit for the excess cost of reasonable repairs he or she has borne BUT ONLY the VALUE ADDED by improvements
Answering a L-T question flowchart
TBRR
1. Determine Tenancy in question
2. Determine Basis for the Conflict
a. Paying Rent
b. Condition of the premises

AND

c. Possession of the premises

3. If there are successive Ts or Ls, determine RESPONSIBILITY

4. Determine REMEDIES
Leasehold Estates--Types
WiSPY
1. Tenancy at Will
2. Tenancy at Sufferance
3. Periodic Tenancy
4. Tenancy for Years
LE--Tenancy for Years
a lease for a fixed period of time. beginning/end dates must be fixed.
Period may be for day, weeks, months or years
-can be determinable on some event
-if over 1 year, then must be in writing to satisfy SOF
LE--Tenancy of Years--how terminated
expires at the end of the stated period without EITHER PARTY GIVING NOTICE
LE--Periodic Tenancy
tenancy renewed automatically at the end of each period e.g. week, month, quarter)
LE--Periodic T--how created/terminated
CREATED
1. express agreement
2. implication--lease is silent
3. Operation of Law--i. oral lease in violation of SOF or ii. L accepts rent from a holdover T
TERMINATED
requires notice of:
1. at least one rental period. If period is one year or longer, only 6 months is required.
2. correct effective day i.e. last day of the period
LE--Tenancy at Will
A tenancy that the L, T or both can terminate at any time without notice. Most states require 30 days notice by L, not T
LE--Tenancy at Will--how created/terminated
expressly, implied by law if lease does not provide for periodic rent, or lease is invalid

Terminated:
1. At will of L or T
----
2. Death of either party
3. Waste by T
4. Assignment by T
5. Transfer of T by L
6. Lease by L to someone else.
$ LE--Hold-over doctrine
when a T wrongfully maintains possession of the premises ["holds over"] after the expiration of the Lease. L may evict or hold the T to a new periodic tenancy by accepting rent:

If property is residential, new period always month to month

If property is commercial & old period was 1 yr or more=new tenancy is year to year

f property is commercial & old period was less than 1 yr=new tenancy is same as period of old tenancy
$ Hold-over doctrine--reasonable requirement
L cannot impose new tenancy if not reasonable i.e. TG holds over for a few hours.
$ Hold-over doctrine-Raised rent situation
If L tells T of higher rent before expiration of lease, and T holds over, L can impose new PERIODIC tenancy at raised rent
T duties--generally
1. Liability to 3Ps
2. T Duty to Repair
3. T Duty to pay rent
$ T liability to 3P
T is responsible for keeping the premises in reasonably good repair

T is liable for injuries sustained by 3P that T invited, even where L expressly promised to make all repairs.

BUT T may seek indemnification from L.
T duty to repair
T must maintain premises and make ordinary repairs and must not commit waste.

If lease provides that T must REPAIR AND MAINTAIN, then T liable to all damage to property (even ordinary wear and tear) unless the damage is of a type specifically excluded from the promise to repair.

Exception: T can terminate lease if premises are destroyed without T's fault i.e. lightning.
Fixtures--def
a once movable chattel that, by virtue of its annexation to realty OBJECTIVELY shows the intent to permanently improve the realty

e.g. furnace, heating system, customized storm windows, certain lighting installations.
Removal of fixtures . . .waste?
yes when a T removes a fixture, he commits voluntary waste.

Also, T is responsible for the cost of restoring the premises to the original condition.
T responsibility re fixtures
T must not remove a fixture no matter that T installed it.
when does T installation=fixture
If express agreement on point, the agreement controls. BUT regardless of any agreement, items that have become incorporated into the structure of the realty always become part of the realty

If not express agreement, T may remove a chattel that he has installed so long as removal does not cause substantial harm to the premises.

if removal will cause substantial damage, then in objective judgment, T has shown intent to install a fixture.
Fixture--absent agreement how to determine
1. degree/manner of attachment
2. General custom i.e. nature of the article
3. degree of harm to premises on removal
4. adaptation of the item to the use of realty
5. Trade fixtures=chattels used in trade or business are not fixtures.
Fixtures--when can chattel be removed
If T can remove chattel, it must be removed before the lease ends

If L can remove the fixture, it must be removed before closing.

Trade Fixtures--CL must be removed before the end of the term
MOdern Rule--within a reasonable time after the expiration of the lease.
T duty to repair when T has expressly covenanted/promised to maintain the property in good condition for the duration of the lease:
1. Old Minority Rule--harsh
2. New Majority Rule--better
T duty to repair--Old Rule
T was liable for any loss to the premises, including loss due to force of nature. (i.e. earthquake, lightning)
T duty to repair--new rule
T may terminate the lease i the premises are destroyed without T's fault
T duty to pay rent--when T is in possession
Landlord can:
(1) evict properly--L still entitled to collect rent from T who is now a tenant at sufferance. . i.e. through the courts or
(2) continue the relationship and sue for the rent.
T duty to pay rent--when T is in possession--Self-help.
e.g. changing locks, forcibly removing, removing any of T's possessions.

L must not engage in self-help
If L does engage in self-help, then punishable civilly and criminally.
T duty to pay rent--when T is NOT in possession
SIR
Surrender
Ignore
ReLet
T duty to pay rent--when T is NOT in possession->Surrender
L can choose to treat T's abandonment as an offer of surrender.

Surrender occurs when T shows that he wants to give up the lease by either words or actions.

If unexpired term is greater or over one year, then L must accept surrender in writing.
T duty to pay rent--when T is NOT in possession-->Ignore
L can ignore the abandonment and hold T responsible for the rent as if T were still there. MINORITY RULE
T duty to pay rent--when T is NOT in possession-->Re-Let
L may re-let the premises on the wrongdoer tenant's behalf and hold T liable for the deficiency. MAJORITY RULE

L must at least make a good faith attempt to re-let. (mitigation principle)
L duties--generally
1. Duty to Deliver Possession
2. Implied Covenant of Quiet Enjoyment
3. Implied warranty of habitability
4. Retaliatory Eviction
L duty to deliver possession--Majority Rule
aka English Rule: L must put T in physical possession of the premises.

Thus, if a prior holdover T is still in possession, L has breached and the new T gets damages. EVEN IF T agrees to wait until holdover T has been evicted.
L duty to deliver possession--Minority Rule
American Rule: does not require that L give T physical possession. Only requires that L give LEGAL possession.
Implied Covenant of quiet enjoyment
T has a right to quiet use of premises without interference from L.

-applies to both residential and commercial leases.
Breach of Implied Covenant of quiet enjoyment by ACTUAL EVICTION
occurs when L wrongfully evicts T or excludes T from the premises.

Total Eviction: terminates lease and ends T's obligation to pay rent

Partial Eviction: does not terminate lease. T can remain and pay NO RENT unless partial eviction is y someone other than landlord with better title, then pays apportioned rent to reflect amount taken away.
Breach of Implied Covenant of quiet enjoyment by CONSTRUCTIVE EVICTION
L breaches cov of quiet enjoyment if there is a
1. breach BY LANDLORD which renders the premises uninhabitable

2.T give notice to L

AND

3. T leaves in a timely fashion
-------
SING

Substantial Interference
Notice
Goodbye
Constructive Eviction--substantial Interference
uninhabitable premises resulting from L's [or persons acting on behalf of L] actions or failure to act

i.e. flooding, no heat in winter, loss of elevator service in a warehouse.
Constructive Eviction--Notice
T must give L notice of the problem.

L must fail to respond meaningfully
Constructive Eviction--Goodbye
T must leave within a reasonable time after L fails to fix the problem.
L liability for acts of other Tenants--Exceptions
L generally not liable for actions of other tenants

EXCEPT

L must not permit a nuisance on premises.

L must control common areas.
Implied W of habitability
standard: reasonable suitable for human residence (usually supplied by local housing code or court decision)

-applies only to residential leases.

-no heat in winter, no plumbing, no running water
T's entitlements when Implied W of habitability is breached by L
MR^3 (MR cubed)

Move
Repair
Reduce
Remain
T's entitlements when Implied W of habitability is breached by L--MOVE
T may move out and terminate the lease
T's entitlements when Implied W of habitability is breached by L--REPAIR
T may repair and deduct their cost from future rent
T's entitlements when Implied W of habitability is breached by L--REDUCE
T may reduce or withhold all rent until the court determines fair rental value. T must place withheld rent in escrow to show good faith.
T's entitlements when Implied W of habitability is breached by L--REMAIN
T may remain on premises, pay rent and affirmatively seek money damages.
Retaliatory Eviction Rule
If T lawfully reports L for housing code violations OR exercises applicable state, federal, or constitutional rights, L is barred from penalizing T. i.e raising rent or any other reprisals.

-retaliatory conduct of ANY TYPE is precluded i.e. increasing rent, decreasing services

-e.g.s:

1. T opposes lessor's application to rezone premises

2. joining a T's union

3. Pursuing legal remedies against L while remaining at premises.
Assignments v. Subleases
Assignment--T transfers everything
Sublease--T transfers a portion of lease period, holding some time back.
Assignments-->L sues T/successive Ts
lease is a conveyance and a contract.

T liable on conveyance through POE.
T liable on contract if POC.
Assignments-->L sues T(successors) POE/POC defined
T's complete transfer of entire remaining term of lease is an assignment. Original tenant (T) can still be held liable to L Landlord on his original contractual obligation in the lease to pay rent.

Assignee (T-1) owes rent directly to L because covenant to pay rent touches and concerns the land.

If the assignee (T-1) reassigns the leasehold interest to a subsequent assignee (T-2) then his (T-1) privity of estate with L ends and he generally is not liable for T-2's failure to pay rent.

BUT if T-1 made a promise to T that T-1 would pay all future rent, then L can sue T-1 as a third party beneficiary of the T-1's promise to T.

POE: exists only between present L and present T

POC: exists where there is an agreement between the parties, or where assignee "expressly assumes" the obligations under the lease.
Assignments--covenants running with land
other covenants run with the land if they touch and concern: if performance of the covenant makes the land more valuable or more useful, then it meets T&C test and runs with the land.
Assignments-->T sues L (successors)
original L continues to be liable bc of POC.

successive Ls are liable provided that 1. covenant runs with land and 2. there is either POE or POC
Subleases--Liability
sublessee not liable to L because no POC and no POE
Non-assignment or Sub-lease clause
-violation by T makes attempted transfer VOIDABLE at option of landlord.

IF L does nothing, nothing happens.

IF L accepts rent, then clause is waived out of lease

Conditional consent is not a waiver unless condition is agreed to.

**if clause says no assignment, then T can still sublet without violating the provision.
L Tort Liability
Generally no duty f L to T or T's invitees for injuries on the premises during the life of the lease.

5 exceptions:
1. Latent Defects
2. Short Term Lease of a Furnished Dwelling
3. Common Areas under L's control
4. Negligent Repairs
5. Public Use Exception
Condemnation--partial v. Full--liability
I

Partial--does not release T from obligation to pay FULL rent, but T gets an amount equal to the rent that will have to be paid over the remainder of the lease for the property taken. (i.e. share in the condemnation award)

Full Taking--Extinguishes lease. T excused from paying rent.
L Tort Liability--Latent Defects
L has duty to disclose latent defects which L either knows or has reason to know of.

Latent Defect=defect that T does not know of and a reasonable person in T's position would not discover.

L need only disclose not repair
L Tort Liability--Short term lease of a furnished dwelling
short term lease=3 months or less
L is liable EVEN IF he does not know nor has a reason to know
L Tort Liability--Common areas
L is liable if injury is in an area under his common control and he failed to use reasonable care.
L Tort Liability--Negligent Repairs
L liable for injury resulting from negligent repair, even if L used all due care in making the repair.
L Tort Liability--Public Use Exception
L liable for injury caused by defects if:

1. L must know of major defects, AND
2. L must or should know that T will not fix the defect AND
3. L must know or should know the PUBLIC will be using the premises.
Easement
Grant of a nonpossessory property interest that entitles its holder to some form of use or enjoyment of another's land, which is called the servient tenement.

e.g. prvilege to lay utilities; right of access

Owner of the easement has a right, even a duty to make repairs.

**--holder of an easement to lay underground wire/pipe has a duty to restore the surface following excavation and owner of land can sue holder of easement for damages.

--presumption is that an easement s perpetual unless otherwise stated.
Affirmative Easement
right to do something on servient land
Negative Easements
basically an agreement by a landowner to restrict the use of his land.

-entitles its holder to prevent the servient landowner from doing something that would otherwise be permissible.



LASS

generally recognized in 4 categories:

Light
Air
Support
Streamwater
Negative Easements--creation
can only be created by writing signed by the grantor. There is no natural or automatic right to a negative easement.
Easement appurtenant
easement is appurtenant when it benefits the holder in his physical use or enjoyment of his property.


2 parcels of land will be involved.
1. Dominant land which gets the benefit
2. Servient land which bears the burden
Easement appurtenant--example
A grants B a right of way across A's land so that B can more easily reach his land. B's land is benefited by the easement. In easement parlance, it is the dominant tenement. A's land is serving B's easement. It is the servient tenement.

B has an easement appurtenant to B's land. B's usage of his own land is benefited.

A, owner of the servient tenement is ordinarily NOT precluded from using right of way granted to B that is on A's land. BUT A may not unreasonably interfere i.e. block the road.
Easement in gross
holder of an easement in gross acquires a right to use the servient tenement independent of his possession of another tract. i.e easement benefits holder rather than another parcel

Easement is in gross is not transferable

UNLESS

it confers upon its holder some pecuniary or personal advantage that is not related to his use or enjoyment of his land.
e.g. servient land is burdened but there is no benefited or dominant tenement.

-e.g.s right to place billboard on other's land, right to fish in another's pond, right to lay power lines on another's land.
$ Transferability i.e. running with the land of easement appurtenant
-dominant tenement: appurtenant easement passes automatically

$ -servient tenement: easement appurtenant also automatically passes with the servient estate unless the new owner is a
bona fide purchaser without notice.

-NEED NOT BE MENTIONED SPECIFICALLY IN THE DEED.
Transferability of an easement in gross.
An easement in gross is not transferable unless it is for commercial purposes.
Creation of an AFFIRMATIVE EASEMENT
PING

Prescription
Implication
Necessity
Grant
$ Creation of an AFFIRMATIVE EASEMENT--Grant
Easement to endure more than 1year must be in WRITING that complies with formal elements of a deed. (b/c of SOF) BUT where grantee accept a deed under which grantor reserves an easement, SOF satisfied (despite absence of grantor's signature)

-writing evidencing easement is called DEED of EASEMENT

-express easement often limited by its terms.

***IN TN ALL easements by express grant must be in writing

e.g. X signs deed which "grants Y to construct a sewer on X's land" Y sells land to Z, then Z arguably cannot build the sewer because 1. grant was made specifically to Y and 2. there was no "successors and assigns" language.
Creation of an AFFIRMATIVE EASEMENT--Implication
aka "easement implied from existing use" arises by operation of law.

Court may imply easement if:

1. PREVIOUS USE that was APPARENT

AND

2. parties accepted that the use would survive division b/c it is REASONABLY NECESSARY to the dominant land's use.
$ Creation of an AFFIRMATIVE EASEMENT--necessity
1. at some point in time the dominant and servient tenements were under common ownership
**NOT required in TN

2. the necessity for the easement EXISTED when the dominant and servient tenements were SEVERED

3. degree of necessity is relatively high. i.e. party asserting the easement would incur substantial expense and/or inconvenience if an easement was not implied

e.g. when grantor conveys his land with no way out, except over some part of grantor's remaining land.
$ Creation of an AFFIRMATIVE EASEMENT--prescription
CHOANE

Continuous use (TN 20 years)
Hostile i.e. without consent
Open and Notorius i.e. not secretive
Actual use i.e. literal

--permission defeats the acquisition of easment by prescription because it negates the "hostile" requirement.
Scope of easement
determined by the terms that created it
Termination of Easement
LEND CRAMP

Lapse[pursuant to an express grant ]
Estoppel
Necessity
Destruction of servient land

Condemnation
Release
Abandonment
Merger
Prescription
Termination of Easement--Estoppel
servient owner changed his position in reasonable reliance on easement holder's assurance that the easement will not be enforced.
Termination of Easement--Necessity
Expire when the needs ends.

BUT an easement attributed to necessity conveyed by express grant will not terminate if need ends.
Termination of Easement--Destruction of the servient land
other than through willfull conduct of the servient owner.
Termination of Easement--Condemnation
by eminent domain
Termination of Easement--Release
written release given by easement holder to servient owner.
Termination of Easement--Abandonment
-requires PHYSICAL ACTION demonstrating the intent to never use the easement again.

e.g. builds a wall
Termination of Easement--Merger Doctrine
easement extinguished when title to easement and title to the servient land become vested in the same person.

-once merger, if later separated, the easement is not revived automatically. unless easement by necessity.
Termination of Easement--Prescription
Adverse Possession
License
merely the privilege to enter someone else's land for some delineated purpose

-not subject to SOF therefore at the whim of the licensor

-freely revocable by licensor UNLESS estoppel applies

-absent an agreement to the contrary, lcenses are NONASSIGNABLE.

e.g. tickets, neighbors talking by fence granting of oral easement, reservation and occupancy of a hotel, social guests who enter property.
License-when estoppel applies
only when licensee has invested money or labor or both in reasonable reliance on the license's continuation
Profit
entitles holder to enter servient land and take soil or something of the soil.

-shares all the rules of easements.
-subject to SOF thus oral profits can be revoked

-easements of access and egress are implied in profits

-ASSIGNABLE absent agreement to the contrary. but assignee must not overuse the original grant i.e. extract more minerals than grantor would have originally anticipated.
Covenant
promise to do or not to do something related to land.

-one tract is burdened by promise and the other is benefited
-either NEGATIVE or AFFIRMATIVE

-different from an easement b/c it is not a grant of a property interest, but rather a CONTRACT or PROMISE regarding land
Negative Covenant
i.e. restrictive covenant

promise to refrain from doing something related to land

Touch and concern if they restrict the holder of the servient estate in his USE OF THAT PARCEL of land
e.g. promise to recycle

i.e. promise not to build for commercial purposes.
Affirmative Covenant
promise to do something related to land

i.e. promise to paint common fence

Touch and Concern if they require the holder of the serviet estate to DO SOMETHING(that ACTUALLY BENEFITS the benefited land) which increases his obligations in connection with his enjoyment of the land
-e.g. promise to recycle in a subdivision does not actually benefit the other landowners so does not T&C
How to determine whether to construe promise as a covenant or an equitable servitude
look at remedy. . .

if damages, then covenant

if injunction, then equitable servitude

if negative equitable servitude, then must run with land in order for it to be enforceable against a BFP WHEREAS a negative covenant need only be recorded.
Elements necessary for BURDEN to run with the land
WITHN

Writing
Intent
Touch and concern
Horizontal/ Vertical Privity
Notice

--To be enforceable a real covenant must 1. not be too ambiguous and 2 be constitutionally valid.

e.g. grantee promises to use the land for recreational purposes only may be too vague to be enforceable.
Horizontal Privity
ORIGINAL parties must be in SUCCESSION of ESTATE i.e. buyer/seller, landlord/tenant or mortgagor/mortgagee

-refers to nexus between original parties (A & B)

-difficult to establish
Vertical Privity
require some unhostile nexus such as contract, devise, dissent [The act of a surviving spouse who, as statutorily authorized in many states, refuses a devise and elects instead a statutory share.]

refers to nexus between original party and subsequent party (A and A-1)

-only time absent is when A-1 acquires his interest through adverse possession.
Covenants--Notice
AIR

Actual Notice i.e. literal knowledge

Inquiry Notice i.e. should have known from lay of the land

Record Notice: imputed to buyer based on publicly recorded documents
Covenant--Elements necessary for BENEFIT to run with the land
WITV

Writing
Intent
Touch and concern
Vertical privity

**horizontal privity not required for BENEFIT to run.
Equitable Servitude--elements
promise that equity will enforce against successors.

accompanied by injunctive relief

WITNES

Writing
Intent
Touch and concern
Notice
ES(equitable servitude)

no privity required
implied equitable servitude
aka "reciprocal negative servitude"

Under General or Common Scheme doctrine.

e.g. A subdivides land into 50 lots. Sells 45 of 50 through with covenants restricting use to residential purposes. Then A sells one of remaining 5 lots to a B, a commercial entity, by deed containing no such covenant.
B wants to build a grocery store. Can he be enjoined?

Yes. under common scheme doctrine.

Elements:

1. Subdivider had a general/commmon scheme [of residential development] including the ∆'s lot

AND

2. ∆ had notice of the promise in the prior deeds
implied reciprocal servitude theory
implied reciprocal servitude attaches to the grantor's retained land the moment he deeds the land without restriction
Record Notice--Majority/Minority view
Minority--subsequent buyer put on record notice of the contents of prior deeds transferred to others by a common grantor

Majority: B does not have record notice of the contents of prior deeds transferred to others by the common grantor
Defense to Equitable Servitude
Changed Conditions: changed circumstances are so pervasive that the entire area has changed

-mere pockets of limited change never good enough to sustain burden of establishing termination under rubrick of changed conditions.

-unclean hands
Adverse Possession
process through which a person uses property for a statutorily determined period of time becomes the owner of property and defeats all rights of the person with legal or record title.
AP--Public Policy
1. penalize owners who sit on their rights for too long--productivity argument--gatekeeper analogy
2. reward the use of property to the AP--endowment effect
3. use A as evidentiary tool where Deeds/titles have been lost over time.
4. Structural--no one wants to buy a lawsuit--quiets prior claims allows transferability of land.
CHOANE
1. Continuous
2. Hostile
3. Open and Notorious
4. Actual and
5. Exclusive
AP--Actual--Policy
AP must be in actual possession of the property--to give Notice to true owner
Constructive ownership via color of title.
AP-Exclusive
usually means holds land in exclusion to the owner, and only one person can be an AP. some states
AP--Against governement
nullus tempus occurrit regi--no time runs against the king.
-federal land is so vast, virtually impossible to police.
AP--Open and Notorious
-gives notice to true owner.
-not legally required to notify the owner
-use of land must be of such character that under the circumstances, a reasonable person would consider that someone else is claiming the property.

--Future interests, SOL does not begin until the person subject to AP's property right has vested.
AP-Hostile
1. Majority-basically without true owner's permission
2. Minority--Bad Faith requirement, must be intentional--i.e. no mistaken possession

-not PERMISSIVE
-can occur intentionally or BY MISTAKE.
3. Good Faith-Must actually believe that he has claim of right to the property.
AP--Continuous/Interrupted
1. Not literally--AP must use land as a true owner would under the circumstances.
--is possession continuous enough to begin running the statute of limitations?

continuous possession may be interrupted by:
1. dispossession of the claimant by the rightful owner or subsequent adverse possessor
2. commencement of an ejection action by rightful owner or occupier(is successful)

3. abandonment by adverse claimant.

-Any interruption restarts the clock.
AP--Privity/Tacking
AP can tack statute of limitations onto each other as long as there is privity between the AP, which is achieved by either contract of sale, gift or inheritance.

Howard v. Kunto

Public Policy--favors early certainty as to the location of land ownership. along puget sound difficult and expensive to land locations and boundaries.

--NOT permitted when one adverse claimant ousts a previous adverse claimant.
AP--exceptions--Tolling
statute will not run against TO with disability--including minors. Also, prisoners, servicemen and women, epople absent from the state.
Tolling--Exceptions
1. Disability must exist at the beginning of the AP
2. Disabilities cannot be tacked
3. Tranferring land from TO to 3rd party, 3rd party benefits from tolling.
-TO wouldn't be able to sell
-buyer would lose property without ever knowing about the AP.
AP--Constructive possession
Possession of a portion of a unitary tract of land is sufficient adverse possession of the whole if there is a reasonable proportion between the part actually possessed and the whole, and if the possessor has color of title.

-if a road separates, it is unlikely thatit constitutes a unitary tract.
AP--taking under color of title
when adverse claimant takes possession of land subject to a defective document.

claimant requires title to ALL land described in the instrument (rather than just the portion he ACTUALLY occupied)
In TN, 14 days notice of term of lease by a LL (written, specifying breach) is sufficient if term is for:
1. T's refusal to pay rent that is due and in arrears
2. damage beyond normal wear and tear to the premises by T or guests
3. intentional act committed by T or guest that constitutes a real and present danger ot the safety or welfare of other Ts, the LL or other persons on premises
URLTA: 3-days notice (from date written notice RECEIVED by T)
if T commits intentional act of violence, creates hazardous situation OR real and present threat affecting health, safety, welfare
URLTA--14 days' notice

(as to non-payment of rent, notice to pay within 14 days but lease can't terminate before 30)
T noncompliance materially affecting health and safety that can be remedied by repair, replacement of a damaged item or cleaning, and the tenant fails to comply as promptly as conditions require in case of emergency or within fourteen (14) days after written notice by the landlord specifying the breach and requesting that the tenant remedy it within that period of time, the landlord may enter the dwelling unit and cause the work to be done in a workmanlike manner
covenants in a lease are generally independent of each other
one party's performance does not depend on the other party's performance