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170 Cards in this Set
- Front
- Back
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res nullius |
a thing which has no owner/abandoned by its owner |
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terra nullius |
nobody's land. territory which has never been subject to the sovereignty of any country |
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Progressive Property Theory |
- Reject idea that right to exclude is essentialto ownership àproperty’s social nature is key to understanding property relations - Ownership is a matter of obligations as well asrights - Reject idea that any one value or good is thefoundation of property à favor pluralistconception of property that includes multiple goods such as individualautonomy, personhood, security, equal dignity, and community. |
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Johnson v. M'Intosh (Aquisition by Discovery) |
Quick Facts: P given land by Indians before revolution. After the war, the government sold the land to D. --> D granted land by court Rule: Land title transfers are only valid when made under the rule of the current government |
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Ratione Soli |
owner of land has constructive possession of wild animals on the owner's land |
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Pierson v. Post (Acquisition by Capture) |
Quick Facts: P hunted fox, D captured and killed that fox. Lower court found in favor of P, appellate court reversed. Rule: Property in wild animals is acquired by occupancy: at least mortally wounding/capturing from a distance, at most physical possession. |
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Ghen v. Rich (Acquisition by Capture) |
Quick Facts: The whale case. P killed a whale. D, instead of notifying P, harvested the whale and sold it. P sued D for value. Court held the custom of the finder notifying the killer was a valid form of property interest. Rule: Property rights were established through known practical steps used by the industry. |
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Keeble v. Hickeringill (Acquisition by Capture) |
Quick Facts: P set up a decoy pond on his land to lure waterfowl. D fired guns to scare ducks away. P sued for damages. Lower court held for P. Appellate court affirmed Rule: Property owner has a right to make lawful use of his property for profit w.out malicious interference of others. If landowner uses property for profit-making venture, it constitutes a trade, interfering w a person's livelihood is subject to award of damages. |
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Demsetz Theory |
property rights develop to internalize externalities when the gains of internalization become larger than the cost of internalization |
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Basic Requirements for a perfect market and perfect competition (Theories of Property Rights Creation) |
1. Consumers & producers have full info 2. All commodities (including resources) are fully transferable 3. Large number of buyers and sellers in each market 4. No externalities associated w production or consumption of commodities |
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Potential Government Responses to Collective Goods/Externalities |
1. Assign Legal Entitlements in such a way that producers of collective goods can exclude nonpaying individuals. 2. Subsidize private activities that produce collective goods. 3. Financial Penalties on firms that cause negative externalities. 4. Command and Control Regulation to command firms to supply collective goods or limit pollution. 5. Government Ownership and Management of collective goods. |
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International News Service v. Associated Press |
Quick Facts: AP (P) brought suit for injunction against INS (D) to stop them from pirating their news. Supreme Court held D liable for unfair competition bc it interfered w AP's quasi-property right in selling AP's gathered news. Rule: quasi-property right exists when seemingly public info (facts for a news story), are gathered in a unique manner |
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Feist Publications v. Rural Telephone Services, Co. |
Issue/Holding: phonebook arranged alphabetically sufficiently original to warrant copyright protection? / No, although it is a specific selection and arrangement of facts --> Not CREATIVE enough to be considered an original work = no protection Rule: For copyright protection --> work must be original (some minimal degree of creativity) |
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Harper & Row Publishers v. Nation Enterprises |
Four Factors for fair use: 1. purpose and character of the use 2. nature of the copyrighted work 3. the substantiality of the portion used vs the copyrighted work as a whole 4. the effect on the potential market for or value of the copyrighted work Rule: Fair use doctrine does not expand the permitted uses of a copyrighted work, even if the subject matter is of high public concern |
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Diamond v. Chakrabarty |
Rule: Living things fall within the scope of 35 USC S101 as patentable subject matterss |
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White v. Samsung Electronics America, Inc. |
Issue: Does a common law right to publicity exist when a celebrity's ID has been commercially exploited? Rule: A common law right to publicity is violated when a celebrity's ID has been commercially exploited |
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Moore v. Regents of the University of California |
Issues/Holding: Does a patient still have ownership rights in his cells after they leave his body? / Conversion occurs when a party interferes w another's property ownership or right to possession. Rule: patient does not have property rights to own cells after they leave his body. Should not have ability to sell body parts for $$ |
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Armory v. Delamirie |
Issue: Does finding an item entitle the finder to sue for its return when another party takes it from him? Rule: "Finders keepers" -- finder of a chattel has possessory interest against all except true owner. |
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Hannah v. Peel |
Rule: Finder of lost chattel on another's property has rights to that chattel superior to that of the property owner, barring the original owner of the chattel. Issues/Holding: Does the finder of lost chattel on another's property have rights to that chattel superior to the rights of the property owner? / Yes. Owner of land possesses anything attached to or underneath the land, but not necessarily things lying on top. |
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McAvoy v. Medina |
Rule: initial finder does not necessarily have possessory rights to chattel that is misplaced, not lost Issue/Holding: Does a customer who finds lost property in a shop have a superior right to it than the property owner? / No, bc property owner has duty to hold onto lost chattel in case owner returned for it. |
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Popov v. Hayashi |
Facts: P tried to catch barry bonds record breaking HR ball, interrupted by mob of ppl around him Rule: where an actor takes significant but incomplete steps toward full control, and is interrupted by wrongful acts, he has a pre-possessory interest, a qualified right of possession. |
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Van Valkenburgh v. Lutz |
Issue/Holding: May a person claim adverse possession of real property that he knows he does not own by using and erecting structures on the property? Rule: party takes adverse possession after taking actual possession, and enclosing and/or making improvements to it, for a statutory period of years. |
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Mannillo v. Gorski |
Rule: a Minor encroachment onto another's land DOES NOT satisfy the open and notorious requirement of adverse possession |
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Maine vs. Connecticut Doctrine |
Maine: adverse possession requires INTENT
Connecticut: intent is not relevant. Adverse possession is you stating claim to property against the world Gorski court adopts the connecticut rule |
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Doctrine of Agreed Boundaries |
if there is uncertainty between neighbors as to the true boundary line > Oral Agreement to settle the matter is enforceable if the neighbors subsequently accept the line for a long period of time |
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Doctrine of Acquiescence |
Long acquiescence is evidence of an agreement between the parties fixing the boundary line |
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Doctrine of Estoppel |
When one neighbor makes representations about (or engages in conduct that indicates) the location of a common bondary, and the other neighbor than changes her position in reliance on the representations or conducts. > 1st neighbor is estopped to deny the validity of his statements or acts. |
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Relative Hardship Test |
1. P shows he would suffer irreparable harm 2. Balancing test: hardship to P if removal denied VS hardship to D if removal granted |
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Requirements for Adverse Possession |
1. Actual entry with exclusive possession 2. Open and notorious 3. Adverse and under a claim of right 4. Continuous for the statutory period |
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Howard v. Kunto (shifted properties on the lake) |
Rule: Using a property in line with its intended use (like a summer home only in the summer) is still continuous for adverse possession. Successive owners in privity for a property may combine their occupancy times. |
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Nullum Tempus Occurit Regi (No Time Runs against the King) |
The theory that justifies the idea that you cannot adversely possess against the state. |
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O'Keeffe v. Snyder (painter woman) |
Rule: statute of limitations on a replevin action begins to run when the original owner knows, or reasonably should know through exercise of due dilligence: (1) the existence of the cause of action; and (2) the ID of the person in possession of hte Chattels |
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3 requirements to make a gift of personal property |
(1) Intent - intent to make a present transfer of an existing property (2) Delivery - delivery of possession to the donee w manifested intent to make a gift (3) Acceptance - acceptance by donee (assumed by courts unless gift is expressly refused) |
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Constructive Delivery |
Handing over a key or other object that will open access to the subject matter of the gift |
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Symbolic Delivery |
Handing over something symbolic of the property given (ex. a written instrument) |
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Newman v. Bost (maid and old guy) |
Rule: to effect a gift, whether causa mortis or inter vivos, the items must be physically delivered to the donee if possible Holding: maid did not get "all of the personal property in the house" just bc the old guy who died gave her the keys |
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Gruen v Gruen (son/step-mom painting case) |
Rule: a gift is valid when the donor retains a life estate in said gift, bc an irrevocable transfer occured, granting the donee the right to the gift once the life estate terminates. Dad validly gifted a painting to his son, but asked son if he could keep it until he died. Son said ok, dad died, step-mom tried to keep it. court said the painting belonged to the son |
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Fee Simple Absolute |
"absolute" ownership. freely: 1) divisible - can pass down by will 2) descendible - passes to one's heirs w/o will 3) inalienable - transferable inter vivos (during ones's life time) |
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Defeasible Fees |
1) Fee simple determinable 2) Fee Simple Subject to Condition Subsequent 3) Fee Simple Subject to Executory Limitation |
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Fee Simple Determinable (FSD) |
Words of Creation: "to A so long as"; "to A during"; "to A until" - words with a durational aspect - a Fee simple that may last forever, or may come to an end upon the happening of a future event |
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Fee Simple Subject to Condition Subsequent (FSSCS) |
"to A, but if X happens, grantor reserves right to enter and retake" - a fee simple that may last forever or may be cut short or divested at the transferor's election when a stated condition happens. Unless and until entry occurs, fee simple continues. |
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Fee Simple Subject to an Executory Limitation (FSSEL) |
"To A, but if X occurs, then to B" - a fee simple that, upon the happening of a stated event, is automatically divested by an executory interest in a transferee - tracks an FSD/FSSCS in its creation, but the transferee rather than the transferor has the future interest |
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Life Estate |
"O conveys to A for Life" - measured in explicit lifetime terms, never in terms of years |
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Doctrine of waste |
Life tenant must not commit waste --> must not do anything that would hurt the future interest holders |
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3 Types of Waste |
(1) Voluntary (2) Permissive (3) Ameliorative |
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Voluntary Waste |
overt conduct that causes a drop in value of the land. Willful acts of destruction |
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Permissive Waste |
Neglect. When land is allowed to fall into disrepair. At the baseline, life-tenant must maintain property or keep up w the premises |
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Ameliorative Waste |
life tenant adds to property/enhances value. ALL future interest holders must consent for this to be allowed. |
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Future Interest |
Interests Retained by the Transferor (a) Reversion (b) Possibility of Reverter (corresponds to FSD) (c) Right of Entry (corresponds to FSSCS) Interests Created in a Transferee (a) Vested remainder (b) Contingent Remainder (c) Executory Interest - A future interest is also a present interest --> gives legally protected rights - Future interest holders have certain rights to monitor and police the present possessors and to protect their rights |
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Reversion |
the interest left in an owner when he carves out of his estate a lesser estate and does not provide who is to take the property when the lesser estate expires - O transfers lesser estates and does not also transfer a vested remainder in fee simple, O has a reversion Ex. Grantor grants life estate to you, you die, reverts back to Grantor or his heirs |
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Possibility of Reverter |
Future interest retained in the transferor when a fee simple determinable (FSD) is created |
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Right of Entry |
When an owner transfers an estate subject to condition subsequent (FSSCS) and retains the power to cut short or terminate the estate, transferor has this right. |
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Future Interests in the Transferor |
- Reversion - Possibility of Reverter - Right of Entry |
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Remainder |
A future interest created in someone other than the transferor that, according to the terms of its creation, will become a present estate (if ever) immediately upon, and no sooner than, th e expiration of all prior particular estates created with it. - Created in someone other than transferor - Capable of becoming possessory immediately upon termination of prior estate - Follows a "particular" estate (one less than a fee simple) |
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Executory Interests |
A future interest in someone other than the transferor that can take effect only by divesting another interest. |
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Shifting Executory Interest |
Divests or cuts short some interest in another transferee |
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Springing Executory Interest |
Divests or cuts short the transferor in the future |
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Remainder Interests |
(1) Vested Remainder (2) Contingent Remainder |
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Vested Remainder |
Requires: (1) Remainder is given to an ascertained person, AND (2) Remainder is not subject to a condition precedent (other than the natural termination of the preceding estates) - where ambiguous, the law has a preference for vested remainders. - NOT subject to the Rule Against Perpetuities |
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Contingent Remainder |
Exists when: (1) Remainder is given to an unascertained person, OR (2) Remainder is contingent upon some event occurring other than the natural termination - Signifies that remainder is not ready to become possessory upon termination of precedings estates Alternative Contingent Remainders - if one contingent remainder vests, the other cannot, and vice versa |
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Types of Vested Remainders |
(a) indefeasibly vested (b) vested remainders subject to complete divestment/defeasement (c) vested remainders subject to open/partial divestment |
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Indefeasibly vested |
1. Remainder is certain to become possessory in the future and cannot be divested 2. No condition subsequent can divest the interest 3. Interest is indivisible (the class of takers closed) |
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Vested remainders subject to complete divestment/defeasement |
"To A for life, then to B and her heirs, but if B does not survive A to C and his heirs" |
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Vested remainders subject to open partial divestment |
1 & 2 of indefeasibly vested are met, BUT more people can be added to the class of grantees |
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Rule Against Perpetuities (RAP) |
Rule: "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." (Gray) Rule of Logical Proof: - If you can think of a way that the interest might not vest in the lives in being plus 21 year period then RAP violated. |
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Categories subjected to RAP |
- Contingent remainders - Executory Interests - Class gifts |
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Types of Tenancies |
- Tenants in Common - Joint Tenants - Tenancy by the Entirety |
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Tenants in Common |
Separate by undivided interests in the property - Interest of each may be conveyed by deed or will - no survivorship rights btwn them - each tenant in common owns an undivided share of the whole |
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Joint Tenants |
Each Tenant owns undivided whole of the property Right of survivorship - Upon death of one joint tenant, estate continues in survivors with interest of decedent extinguished |
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Joint Tenant Four Unities |
- Time - interest of each joint tenant must be acquire or vest at same time - Title - all joint tenants must acquire title by the same instrument or joint adverse possession - Interest - all must have equal undivided shares and identical interests measured by duration (increasingly ignored by courts) - Possession - each must have a right to possession of the whole; however, a joint tenant can voluntarily give exclusive possession to other joint tenants - without all four = no joint tenancy --> it is a tenancy in common (in many states ^^ can occur by conveyances to a 3rd party, severing their interest in the joint tenancy, making that part a tenant in common |
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Symphony Space v. Pergola Properties (RAP Case) |
Rule: property interest must vest w.in 21 years after a life in being at the time of the creation of the estate, or else the interest is void - Remote vesting is discouraged bc it provides a disincentive for property owners to improve property. Owner may not improve property, knowing another party may claim it later |
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Mackereth v Spiller |
Rule: cotenants in common do not owe rent to one another, unless he has agreed to it, or he has effected the ouster of his cotenant - Tenants in common each own an undivided interest in the WHOLE, so each has a right to enjoy using the full property without rent. HOWEVER, one cotenant must honor a demand from the other who wishes to use the property as well. |
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In re Marriage of Graham |
Rule: An educational degree earned during a marriage is not marital property --> not subject to equitable distribution upon dissolution of the marriage |
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How is Marital Community Property treated |
husband and wife treated as an economic unit with property divided upon divorce Note: common law property states in practice coming to mirror practices of community property states |
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Varnum v Brien |
Rule: Equal protection clause of Iowa Constitution requires all laws enacted by legislature apply uniformly to all citizens, and the legislature may not grant a privilege to one class of citizen which does not extend to all citizens |
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Morgan v. High Penn Oil Co. (nuisance, oil refinery next to P's property) |
Rule: Even if a party isn't negligent, if the party intentionally and unreasonably commits a non trespasser invasion of another's land, they can still be held liable for private nuisance - the oil refinery emitted nauseating gases and odors, even though it operated legally, it was still found to be a nuisance. |
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Nuisance Per Se |
an activity or structure that is always a nuisance, under any circumstances or conditions. |
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Nuisance per accidens |
an activity or structure that is only a nuisance due to the place it is located or the manner it is done |
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Estancias Dallas Corp v. Schultz (loud A/C case) |
Rule: A balancing test is applied to determine whether an injunction is appropriate to abate a nuisance - Court weighs: Injury to D/Public if injunction were granted vs. Injury to P if injunction is denied > if injury to P is minimal compared to injury to D/Public > injunction should not be granted |
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Boomer v. Atlantic Cement Co. |
Rule: Permanent damages, rather than an injunction, are appropriate when the damages resulting from a nuisance are significantly less than the economic benefit derived from the party causing the harm. |
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Spur Industries, Inc. v. Del E. Webb Development Co. (smelly cow farm vs retirement home) |
Rule: When the public develops land in the vicinity of a public nuisance, the action creating the nuisance MUST be ceased by the party responsible. HOWEVER, that part is entitled to compensation. |
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Term of Years |
- An estate that lasts for some fixed period of time or for a period computable by a formula that results in fixing calendar dates for beginning and ending once the term is created or becomes possessory - Common law - No limit on years permitted - Some Jurisdictions limit duration - MUST be for a fixed perios, but can terminate earlier on some event or condition |
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Garner v Gerrish |
Rule: a lease that grants the lessee the right to terminate the tenancy does not grant the same right to the lessor, unless expressly stated in the document - Landlord gave Tenant ability to terminate lease at will. Landlord died. Executor tried to evict tenant. Lease did not |
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Tenancy at Sufference |
a holdover tenant > remains after termination of lease - holdover is subject to same terms and conditions as those in the original lease |
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Common law options for a landlord with a holdover |
1. Eviction (plus damages) 2. Consent (express or implied) to a new tenancy |
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Hannan v. Dusch (English v. American Rules) |
Rule: An implied covenant to deliver actual possession of a premises does not exist in real estate leases - P's lease started but there was a holdover Tenant. The start date of the lease did not constitute an express covenant guaranteeing delivery of the property. |
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English Rule (minority) |
Barring a stipulation to the contrary, there is an implied covenant in every lease, that the landlord will open the premises to entry at the fixed time on the lease - Damages are against the Landlord |
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American Rule (majority) |
the Landlord is NOT bound to put the tenant into actual possession, but is only bound to give legal possession - Damages are against the person wrongfully in possession (the holdover tenant), NOT the landlord. |
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2 ways to determine Sublease vs. Assignment |
1. Formalistic - Assignment - when lessee transfers his entire interest under the lease - Sublease - anything less than the remainder of the lease 2. Intention of the Parties - The actual words used are not conclusive (although persuasive) |
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Privity |
A voluntary transaction relationship btwn 2 or more ppl/entities |
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Privity of Estate |
Conveyance (via lease) of the right of possession from the landlord to tenant |
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Privity of Contract |
if the lease also contains promises by one party to the other |
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Kendell v. Ernest Pestana, Inc. |
CA Court adopts minority rule: Rule: If a lease provides for assignment only with the prior consent of the lessor, the consent can only be withheld where the lessor has a commercially reasonable objection to the assignment. Majority Rule (Rejecte) where a lease contains an approval clause, the lessor may arbitrarily refuse to approve a proposed assignee, no matter how suitable the assignee appears to be, and no matter how unreasonable the objection |
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Berg v. Wiley |
Rule: When a lessor feels the tenant in possession is violating the terms of the lease, the lessor must exercise judicial remedies to retake the property - Self-help to retake possession was acceptable under common law, but is now abandoned by the court |
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Summary Proceedings |
A quick and efficient means to recover possession (and in some jurisdictions, rent) after termination of a tenancy - typical statutes require only a few days' notice to the tenant prior to bringing an eviction action |
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**Sommer v. Kridel |
Rosser interviewed Kridel Rule: Landlord has a duty to mitigate damages when he seeks to recover due rent from a defaulting tenant - if a tenant defaults/move out... landlord must actively try to replace the tenant... not just allow damages to accrue (contract law) |
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Village Commons, LLC v. Marion County Prosecutor's Office |
Rule: A tenant who is actually or constructively evicted may: 1. leave and avoid her lease obligations 2. Stay and sue for trespass - see Actual Eviction v Constructive Eviction |
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Actual Eviction |
when the tenant is deprived of the occupancy of some part of the premises |
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Constructive Eviction |
when the tenant is deprived of the beneficial enjoyment of part of the premises - The Right to claim constructive eviction is lost if T does not vacate the premises within a reasonable time after right comes into existence |
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Hilder v. St Peter (the really crappy apartment) |
Rule: All residential rentals include an implied warranty of habitability, which cannot be waived or disclaimed - Abandonment is NOT necessary for a tenant to recover her backpaid rent for a substandard dwelling |
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Steps of analysis for Assignment v Sublease |
1. Subleaseor Assignment? a. Intentunclear b. Transferof less than entire interest, SO sublease 2. Rightsof LL: a. AgainstT: can sue for rent due i. T can proceedagainst T1 b. AgainstT1: cannot sue for rent due i. No privity ofestate or of contractc. Canevict T1 and in some states sue for rent from T1 d. Hadthere been an agreement to pay the rents, jurisdictions that recognize 3rdparty beneficiaries would place LL and T1 into privity of contract. |
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Remedies of Tenant due to eviction |
- Right to abandon w right to consequential damages from the abandonment - Damages equal to difference btwn value of property with and without the breach Note: a breach not substantial enough to amount to constructive eviction does not mean that T would not be entitled to damages |
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Illegal Lease |
No rent due bc of unsafe and unsanitary conditions in violations of the housing code - Tenant is a Tenant at Sufference and Landlord is entitled to reasonable rental value of the premises given their condition. Limits: - does not apply if conditions develop AFTER making the lease - Minor technical violations nor violations of which LL had no actual or constructive knowledge of do not render a lease illegal - Dead letter bc of IWH |
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Implied Warranty of Habitability |
LL required to deliver and maintain, throughout the period of the tenancy, premises that are safe, clean, and fit for human habitation. - Assumption of risk by Tenant is not allowed - Court may look to local housing codes and min. housing code standards - T required to give notice to LL, and allowed reasonable amount of time for LL to correct - T can withhold payment of future rent, and T must show: (1) notice to LL; AND (2) condition existed during period rent withheld (photos help) |
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Why is there now an Implied Warranty of Habitability |
- Tenants now look for a full package of goods and services - T no longer able to do repairs, or is in the best position to keep the complex living units habitable - T is in an inferior bargaining position relative to LL |
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easement definition |
right to cross or otherwise use someone else's land for a specified purpose |
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Types of Servitude |
Easements Real Covenants Equitable Servitudes |
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Types of Easements |
Easement Appurtenant Easement in gross |
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Easement Appurtenant |
- gives the easement right to whomever owns a parcel of land that the easement benefits - the law favors this over easements in gross |
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Easement in Gross |
- gives the easement right to some person without regard to ownership of land. |
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Types of Covenants |
Real Covenants Equitable Servitudes |
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Real Covenants |
- covenants enforceable at law - must be created by a written instrument signed by the covenantor - is an interest in land within the meaning of the Statute of Frauds - Cannot arise by estoppel, implication, or prescription, as can an easement |
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Equitable servitudes |
Requires - Intent - intent promise can run - Notice - Actual or constructive notice to subsequent purchaser - Touch & Concern interest in land, binding in equity not enforceable against a subsequent bonafide purchaser of the land without notice Enforceable regardless of its enforceability at law - burdens the land itself, not the estate (unlike covenants) - Promisor released after conveyance from suits in law or equity - Promissee has no right to enforce restrictions after conveyance of the benefited land - Government must pay benefited owners damages when gov't condemns the burdened land |
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Negative easement definition |
an easement forbidding one landowner from doing something on his land that may harm a neighbor |
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Willard v. First Church of Christ, Scientist (church parking lot) |
Rule: A grantor MAY reserve an interest to be used by a 3rd party, in land that is granted - Grantor granted land with the condition that church goers were still allowed to park there |
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Holbrook v. Taylor (can't use my road) |
Rule: if a licence to use and improve upon land is granted to a licensee, and the licensee uses and improves the land relying on this permission, the license is irrevocable. - Licensor granted licensee license to use road. Licensee built house, improved road at considerable cost. Dispute arose and Licensor tried to bar licensee from using the road. Court said that was no good. |
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Van Sandt v. Royster (poopy basement) |
Rule: an easement is implied in favor of a grantor, because the grantee is charged with notice When an owner conveys the dominant tenement, the easement goes along with it, so long as the easement is apparent, continuous, and necessary. |
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To determine intent to create an easement by implication: |
a. whether the claimant is the conveyor or the conveyee b. the terms of the conveyance c. the consideration d. whether the claim is made against a simultaneous conveyee e. the extent of the necessity of hte easement f. whether reciprocal benefits result g. how the land was used before the conveyance, and h. how much the parties new about that use. |
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Othen v Rosier |
Rule: No easement by necessity is created where the easement exists out of mere convenience - Othen sued Rosier after Rosier built a levee to divert water from damaging the property... blocking the path Othen used to get to his farm. - Although there was evidence there was no other means of reaching Othen's farm, there was also no evidence showing that traversing Rosier's land was the means he used to reach the public road. > Othen could not show an easement of necessity |
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Easement by Necessity |
created when the owner of an estate conveys a portion of his land, but needs to reserve for himself the use of part of the conveyed land |
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Easement by Prescription |
Requires: - Open & notorious - Continuous - Adverse - Under a claim of right similar to adverse possession owner of easement must make use of the easement in a manner adverse to the actual owner of the land. If the actual owner of the land has: - Knowledge; and - grants consent to use the land no easement by prescription can be created |
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Earliest type of prescriptive easement |
easement based upon use from time immemorial |
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Express dedications |
essentially grants and and usually involve gratuitous transfers of land to a government body or the public at large |
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Implied dedication |
used where the landowner evidences an intent to dedicate, and the state accepts by maintaining the land used by the public |
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Matthews v. Bay Head Improvement Association |
Rule: Public Trust doctrine extends to dry beach area above the foreshore owned by a quasi-public entry |
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Miller v. Lutheran Conference & Camp Association |
Rule: an easement in gross IS assignable and divisible, BUT if divided, all those holding an interest must act as a single entity. After an easement allowing an owner to fish, boat and bathe in a lake was subdivided, and further assigned to smaller licensees. An original owner tried to stop a licensee from fishing, boating, and bathing |
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Brown v Voss |
Rule: Where an easement appurtenant to land is granted for a specific purpose, it is a misuse of that easement to use it for any other purpose. Lot B had easement for private road through Lot A. Owner of Lot B wanted to use road to get to Lot C. Court held that the road could only be used to get to Lot B. |
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Preseault v. United States |
Rule: scope of easement can be adjusted, but if it is changed in a way that was not foreseeable at the time of the original easement, it is invalid change must be consistent with terms of the original grant for a dominant tenant to abandon an easement, conclusively and unequivocally, stop use of the easement |
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Covenant vs Equitable Servitude
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Both need: Intent, Notice, Touch & Concern But Covenant requires: Privity & Written requirement touch & concern: a covenant must affect hte legal rights of hte parties as landowners |
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Equity imposes 3 requirements |
1. Intent - intend the benefit and/or the burden of the covenant run to successors of the original parties 2. Notice - notice on the part of purchasers of the original promisor 3. Touch & Concern - the covenant touches and concerns the land |
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Neponsit Property Owner's Associaiton, Inc. v. Emigrant Industrial Savings |
Rule: (1) A covenant contained in a deed requiring the payment of $$ "touches & concerns" the land if it substantially affects the rights of the parties as landowners (2) Privity of estate will exist in substance (if not form) btwn property owners and an owners' association when the association is acting as a medium through which enjoyment of a common right is preserved |
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Shelley v. Kraemer |
Rule: a covenant can't be enforced if it violates a constitutional right - white neighbors signed a covenant that a black family couldn't move into the neighborhood. It wasn't illegal to MAKE the covenant. Just illegal to enforce it. |
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2 types of Privity |
Horizontal Privity Vertical Privity |
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Horizontal Privity |
- Privity of Estate between the original covenanting parties - Not required for the benefit to run |
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Vertical Privity |
- Privity of estate btwn one of the covenanting parties and a successor in interest - Required for both the burden and benefit of a real covenant to run - Enforceable at law by and against remote parties only if those parties have succeeded to the original parties' estates in the land in question |
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Tulk v Hoxhay |
Rule: One who purchases property with knowledge of a restrictive covenant, must honor that covenant |
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Sanborn v. McLean |
Reciprocal negative easement Rule: When the owner of related lands conveys part of the land to another with restrictions intended to benefit the retained land, the same restrictions apply to the retained land by operation of law - tried to build a gas station, neighbors said no |
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Covenant can be terminated by |
1. Merger 2. Release 3. Acquiescence 4. Abandonment 5. Unclean Hands 6. Laches - an unreasonable delay by P to enforce a servitude against D 7. Estoppel |
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Western Land Co. v. Truskolaski |
Rule: A restrictive covenant limiting a subdivision to residential use remains enforceable despite commercial development int he area surrounding the covenant, as long as the covenant's original purpose can still be accomplished and the property owners still substantially benefit. - restrictive covenant restricted use to single family homes signed in 1941. supermarket wanted to build in 1968 arguing the nature of area changed substantially. |
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Rick v West |
Rule: A landowner who purchased land with knowledge of a restrictive governing his land and the surrounding land, is entitled to enforce that covenant against other parties. |
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Nahrstedt v. Lakevillage Condominium Association, Inc. (the cat lady) |
Rule: Common interest development use restrictions (like Condominium rules) a generally enforceable unless unreasonable, unconstitutional, or against public policy. - Condo rules saying no pets is not an unreasonable rule |
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40 West 67th Street Corp. v. Pullman |
Rule: The Business judgment rule, NOT landlord-tenant law, applies to reviews of a cooperative residential association's decisions. precludes judicial review of a cooperative's decision to evict if it acts in good faith in furtherance of its legitimate corporate purposes. |
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Business Judgment Rule |
a common law doctrine that permits corporations in business settings to act in its own best interest. Applies to cooperative arrangements |
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Housing Delivery |
- Federal Gov't Development - Private Development - Private Development w Fed Support - Extractions on Private Development |
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Beach Access Rules |
Held in public trust by the state Most states: - Public Trust - wet sand area, water to mean high-tide line - Private Ownership - high-tide line inward (dry sand/vegetation) Hawaii: public right up to vegetation/debris line Access: - presumed to be with permission of owner. Prescriptive easements individually litigated and not very successful |
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Covenant Requires |
Creation Intent Notice Touch & Concern Horizontal Privity Vertical Privity |
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Pocono Springs Civic Association v. MacKenzie |
Rule: To abandon real property, the owner must successfully divest all right, title, claim or possession of the land. A perfect title cannot be abandoned. The person who has the record title is presumed to be in possession of the proprety |
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Hawkins v. Mahoney |
Rule: The inference of intent to abandon one's property, based solely upon the actions of the owner, is a rebuttable presumption. |
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Eyerman v. Mercantile Trust Co |
Rule: When a landowner attempts to compel his successor in interest to do something to the land against public policy, a court may deem the condition void. - Owner's will wanted executor to destroy her house, although it was part of a city landmark. Ps filed injunction to stop destruction. - Destruction would decrease the value to her beneficiaries, and the property values in the neighborhood, without providing benefit to anyone. |
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Chicago Board of Realtors, Inc. v. City of Chicago |
Rule: A city may constitutionally codify the implied warranty of habitability and impose additional responsibilities on landlords, but doing so is unreasonable and unwise |
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Village of Euclid v. Ambler Realty Co |
Rule: Municipal zoning regulations are constitutional, unless they are clearly arbitrary and unreasonable, having no substantial relation to the public health, safety, morals, or general welfare - Zoning restrictions are unconstitutional if "clearly arbitrary and unreasonable" and without "substantial relation to the public health, safety, morals, or general welfare." |
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PA Northwestern Distributors, Inc. v. Zoning Hearing Board |
Rule: An amortization clause in a zoning ordinance which affects lawful land use constitutes a "taking" under the PA Constitution |
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Variances - Commons v. Westwood Zoning Board of Adjustment |
Power to Grant Variance has 2 Conditions: 1. Variance must be necessary to avoid undue hardships on the owner of the land in question - no effective use can be made of the property in the event the variance is denied 2. must not substantially impinge upon the public good and the intent and purpose of the zoning plan and ordinance |
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Special Exceptions - Cope v. Inhabitants of the Town of Brunswick |
Authority given to grant exceptions to an ordinance if: 1. the other requirements of the ordinance are met. 2. Use will not adversely affect the health, safety, or general welfare of the public 3. Use will not tend to defeat the purpose of the ordinance or of the comprehensive plan for the development of the community; AND 4. Use will not tend to devaluate or alter the essential characteristics of the surrounding property |
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Variance v. Special Exception |
Variance - permits an owner to use land in a manner otherwise prohibited by the zoning ordinance Special Exception - allows an owner to put property to a use that the ordinance expressly permits - conditional use under a zoning ordinance and results from a legislative determination that such use will not ordinarily be detrimental or injurious to the neighborhood within the zone. |
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Spot Zoning |
Zoning changes, typically limited to small plots of land, which establish a use classification inconsistent with surrounding uses and create an island of nonconforming use within a larger zoned district, and which dramatically reduce the value for uses specified in the zoning ordinance of either the rezoned plot or abutting property |
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Spot Zoning is invalid when |
1. a small parcel of land is singled out for special and privileged treatment 2. the singling out is not in the public interest but only for the benefit of the landowner 3. The action is not in accord with a comprehensive plan |
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Conditional rezoning |
when the property owner agrees unilaterally to use the land in the specified manner |
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Contract rezoning |
a bilateral agreement btwn the owner and zoning authorities, perhaps w the owner covenanting to restrict the use of the property in exchange for the authority's promise to rezone |
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State ex re Stoyanoff v Berkeley |
Rule: As an exercise of police powers, states may authorize local gov't to make zoning regulations regarding aesthetic matters for the general welfare of the community. |
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Anderson v. City of Issaquah |
Rule: a land use statute's design considerations must contain guidelines that are not so broad as to make them susceptible to subjective considerations |
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Village of Belle Terre v. Boraas |
Rule: Zoning regulations may be used to enhance and preserve public welfare. |
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City of Edmonds v. Oxford House, Inc. |
Rule: The exemption in the fair housing act only applies to ordinances that are clearly intended to set a maximum number of occupants in a dwelling |
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southern burlington county naacp v. township of mount laurel |
Rule: A town, through enactment of land use regulations, must provide the opportunity for low and moderate families to live in the town and may not constructively prevent them from doing so. |
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Eminent Domain |
Power of government to force transfers of property from owners to itself |
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2 categories of takings that don't require factual inquiry: |
1. Physical invasion of property 2. The regulation denies all economically beneficial or productive use of the land |
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Kelo v. City of New London |
Rule: A state can use eminent domain to condemn private property to redistribute it to other private individuals constitute a "public use", if it is rationally related to a conceivable purpose |
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Loretto v. Teleprompter Manhattan CATV Corp |
Rule: a permanent physical occupation authorized by government is a taking requiring the payment of just compensation without regard to the public interest that it may serve, or having only a minimal economic impact. |
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Hadacheck v. Sabastian |
Rule: The state police power includes the power to regulate land use, and must not be arbitrarily exercised not a taking bc not completely devoid of economic benefits of land the clay case |
