Property

▼	Personal Property
	•	anything that is not real estate
	▼	Tangible
	•	Stuff
	▼	Intangible
	•	ideas, patents, promisory notes
	•	Systems for resolving disputes between people over things.
▼	Policy behind property
	▼	Prevent violence/Maintain order.
	•	If I don't have possession of my property - I don't have any rights to it - I'll use violence instead of the courts to get my property back.
	•	Promote free transfer of property.
	▼	Property is a zero sum game
	•	One person gets the fox, the other gets nothing. 
	▼	Security of transactions if important in property
	•	3rd party gets good title when purchased from a dealer.
	•	Vail likes policy
▼	What is ownership?
	▼	Right to exclude others - A fundamental aspect of ownership.
	•	When do you have the right to exclude? When a court will enforce your claim
	•	When is it yours? When a court says it's yours.
▼	Possession
	▼	Physcal control and intent to control
	•	Objective: do I have physical control?
	▼	Subjective: Is there intent to control?
	•	The only way to know is the outward visible manifestations of your actions.
	▼	Possession gives title against all the world except those with better title
	▼	Gissel v. State
	•	Gissel stole rice from state and forest service land. The state sold the rice and he sues for the money.
	•	Gissel got half the procceds, because the state had no claim to the forest service's half, and Gissel, as the posseser, has superior title to all the world (the state) except those with better title (the forest service)
	▼	Do we prefer the current possessor or the "better posessor"
	•	Gissel says the current possesser
	•	Ownership is difficult to prove in many cases- do you have the receipt? Possession is used in its place.
	▼	Constructive Possession
	▼	when the law treats him as if he is in possession although in fact he is not or is unaware of it.
	•	Stuff buried in your yard, a ring in your pool
	•	Why? the law doesn't want to encourage people rooting aroung in yards and pools find things that owners didn't know were there.
	▼	Wrongful possesors
	▼	They too get property rights. 
	•	To prevent an unwelcome spiral of theft from theft from theft, as transfered
	▼	Popov v Hyashi.
	▼	Pre-possesory Interst
	•	This is the only case that you will find any concept of prepossessory interest.
	▼	No common Law protection for ideas
	▼	While there is no Property law for the protection of ideas, you can contract for the sale of ideas
	•	They aren't property per se though
	•	More of a contract issue than a property issue.
	•	You can contractually protect ideas though.
	▼	Property Law does not protect immitation.
	•	Public Access to items in the market is a policy of property law
▼	Unowned Property
	•	Prior possessors prevail over a subseqent possessor
	▼	Possession of wild animals
	▼	No one possesses wild animals until they exercise dominion over them.
	•	Control and intent to control- the ellements of prossession
	▼	Possession of animals is shown "by occupancy only"
	•	Just chasing the animal doesn't give you any property rights.
	•	David Hume: It's unfair for one person to expend energy chasing a fox and for them not to have established a property interest in them.
	•	Why? Courts like rules that provide certanty of outcome.
	▼	Labor theory of property: Requires some sort of result from your labor for you to get a property right from your labor.
	•	Locke
	▼	Efficiency of Labor
	▼	When we put our labor into something there is an expectation of reward for the labor.
	•	Hume: an expectation interest should be protected.
	▼	We are distressed about the loss of a rabbit vs the loss of an apple
	•	the apple we happen upon, the only labor involved is in picking it.
	•	The rabbit we have to raise, putting in more labor than in the apple.
	▼	Whale possession
	▼	Fast fish/loose fish
	•	A fish tied fast to an occupied boat is the property of the boat.
	•	A fish loose in the sea is the property of whoever can capture it.
	▼	When to apply industry custom
	•	Maybe when they are both members of the same industry.
	▼	Rule of Capture
	▼	Pierson v Post (fox hunt) is the majority opinion in US property law.
	•	Mortally wounding an animal is also sufficient. 
	▼	Also applies to "fugitive resources"
	•	Oil and natural gas
	•	They must be captured to be claimed as property.
	•	Iron Ore, Oysters don't move - rule of capture doesn't apply. 
	•	Rule of capture invites agressive exploitation.
	•	It fosters competition resulting in more things being captured
	•	It's easy to administer
	•	The rule is designed to acheive ends.
▼	Lost/Found Property
	▼	Owners do not loose title by losing property- Ownership rights persist even though the article has been lost or mislaid
	▼	Finders rights are superior to all the world EXCEPT the true owner
	▼	Prior possession protects an owner who has no indica of ownership
	•	Because possession is easier to prove than ownership.
	▼	Prior possessors expect to prevail
	•	by givign them their expectations, the law reinforces itself as just.
	▼	Rights of a finder/possessor depend on what kind of property it is.
	▼	Mislaid
	•	Intentionally placed and the owner has not returned.
	▼	Owner, or lawful possessor of  the real property where the lost article was found is the rightful possessor
	•	Purpose for the mislaid distinction is that the owner will return for it.- we want to facilitate the return of property to the rightful owner. 
	▼	But - Mislaid property policy does not encourage the return of property - 
	•	It assumes that the person who finds the property will turn it in - and then they loose any claim to the property
	•	Invites dishonesty- either we slip it in our pocket, or we knock it on the floor to "find" it as lost.
	•	Some states don't recognize mislaid property.
	▼	If it's found on the sidewalk - it will be treated as lost property
	•	I don't mislay my wallet on the sidewalk. 
	▼	Abandoned
	•	Property voluntarily forsaken
	•	The Law does not presume the abandonment of things of value
	•	Finders Keepers. 
	▼	Lost
	•	Unintentionally separated from the dominion of its owner
	•	Finder has right to possession, but doesn't gain title.
	•	Rights are good against all the world except the true owner or a prior possessor
	▼	Treasure Trove
	•	Title to treasure trove belongs to the finder against all the world except the true owner.
	•	Gold or silver, (or it's paper equivilent - a modern addition) burried in the ground intentionally with the intent to return to claim it.
	•	Treasure trove is tricky stuff- sometimes its treated as mislaid- isn't it?- and goes to the property owner. Jurisdiction dependent.
	•	Primary purpose is to protect the rights of the true owner.
	▼	Bailee
	•	A person who has rightful possession of PERSONAL property that belongs to someone else.
	•	A bailee has a duty of care for the goods and a duty to deliver them to the owner as agreeed
	•	the bailee must assume actual physical control with the intent to possess- same as possession
	▼	Parking lot cases - Is a bailment created at all? Or are they simply renting you a space.
	•	If they are renting you a space- there is no duty of care.
	•	if you tun over your keys- the lot has physical control and intent- its a bailment
	▼	Liability for bailments
	▼	If the bailment is soley for the benifit of the bailee- borrowing a lawnmower- then extrodinary care is required.
	•	bailee is liable for even the slightest damage.
	▼	bailment for mutual benefit- leaving something for repair.
	•	bailee has a duty of ordinary care and is liable for ordinary negligence.
	•	Mutual benifit is best seen where there is payment for a service
	▼	Bailor is the sole benificiary
	•	results in a gratuitious bailment
	•	Bailee has only a slight duty of care and is liable only for gross negligence. 
	▼	A finder of lost property is a gratuitous bailee.- slight duty of care
	•	Implied that the true owner would allow the bailee to control the property for the benifit of the owner
	•	Strict liability attaches for misdelivery of a bailment-regardless of who the bailment benifits.
	▼	Involuntary bailment
	•	Nonconsensual-
	•	Duty of slight care
	•	only liable  for for misdelivery if negligent.
	▼	Public/ Private Distinction
	•	When its found in a private place- the lost/mislaid distinction is out the window
	▼	The found property goes to the owner of the property
	•	We want to discourage people from snooping around other peopl
	•	Doesn't apply to treasure trove in some jurisdictions
	•	Protects the rights to privacy and security of the owner.
	▼	The owner of the property will ALWAYS prevail over a trespasser.
	•	Discourages trespass
	▼	Objects under the soil
	•	always go to the land owner
	•	EXCEPTION- treasure trove
	▼	People on the premises for a limited purpose.
	•	The objects that they find go to the owner- because they have permission to be on the premises only for the purpose doing what they received permission for- not for keeping foound objects.
	▼	Objects in private homes
	•	ALways go to the owner. 
▼	Adverse Possession
	▼	If, within the number of years specified in the statute of limitations, the owner of land does not take legal action to eject a possessor who claims adversely to the owner, the owner is thereafter barred from bringing an action in ejectment. Once the owner is barred from bringing an ejectment claim- title transfers to the adverse possessor.
	▼	Quiet title action
	•	A court determines who the actual owner is
	•	Used when a dispute over ownership arrises.
	•	Filled by the Adverse possessor to declare them the true owner.
	▼	Basis is the statute of limitations.
	▼	Histoically the statute of limitations was 20 years for Causes of action in real estate claims .
	•	20 Years was common law
	▼	When the cause of action (ejectment) is barred by the statute, the adverse possessor obtains title to the land by operation of law.
	•	Adverse possessor must file a quiet title action to record their title, because they did not gain title through the transfer of a deed. 
	•	If you sit on you hands long enough- the courts won't entertain a claim of ejectment.
	•	All of the ellements must be met before the statute begins to run ---- VERIFY THIS.
	▼	Rational for the doctrine
	▼	Protects title
	•	those who have a defective deed will be able to correct the defect by maintaining possession long enough.
	•	Bars stale claims
	▼	Rewards those who use land productively
	•	Society values productive land
	▼	To Honor expectations
	•	people in possession intend on staying in possession.
	▼	Sleeping Theory
	•	Purpose of AP is to penalize people for sleeping on their rights.
	•	Strictly held to in England.
	•	I can kick you off with one day to go on your AP claim and then title would vest in me
	▼	Earning Theory
	•	Title is a reward for the work of the adverse possessor.
	▼	Ellements
	•	Can't adverse possess against the government.
	▼	Actual dominion over the land giving exclusive possession
	▼	NOT equivilent to occupancy
	•	Depends on the factual circumstances.
	▼	You only get title to property that you acutally adverse posses
	▼	Unless you are possessing it under "color of title"
	•	Color of title - You have a document that indicates that you are the correct owner, but is invalid.
	•	Possession under color of title gives you "constructive possession" of everything described in the deed. 
	•	BUT you are still required to enter and have actual possession over some part of the land described in the deed
	▼	Exclusive
	•	Excluding the true owner
	•	Again - using like an owner would
	•	Having a roommate or renting the property to another does not destroy exclusivity.
	•	Exclusive as to the true owner - not to the use of others as an owner would.
	▼	Continuous and uninterupted
	•	Purpose of the continuity requirement is to give the true owner notice that the AP is not just a tresspasser.
	▼	For the length of the statutory period
	▼	The statute doesn't run if you are incapable of asserting your rights.
	•	Minority
	•	Mental Commitment
	•	Incarceration
	▼	You must be disabled when the adverse posession starts - or when the statute of ultimat repose
	•	Ultimate repose- a hard deadline regardless of the circumstances of the case. 
	•	Temporary break or interuption does not destroy the continuity of the claimants possession
	▼	To show non continuity you have to show they used it how an owner would not use it .
	•	They would look at the facts on a case by case basis.
	•	The longer the break in continuity- the more tenuous the claim of adverse possession gets. 
	•	Abandonment by the AP ends the continuity of possession.
	▼	Open and Notorious
	•	Gives notice to the actual owner that the land is being occupied.
	▼	the possessors acts must constitute reasonable notice to the owner that the possessor is claiming dominion
	•	This allows the owner an opportunity to defend their rights.
	•	Open and notorious acts are those that look like the actions os a typical owner of the type of property they are in possession of.
	•	The acts must be appropriate to the condition, size, and locality of the land.
	•	jugded on the totality of the actions take in possession.
	•	The true owner need not actually posses - they have title- they can do what they want.
	•	
	▼	Distinct
	•	Possession of the type that would charachterize an owners use. 
	▼	Hostile
	•	an assertion of ownership rights adverse to that of the true owner and all others. 
	•	The owner need not actual notcie - the possession only must be open and hostel - enough to put the owner on notice.
	▼	Inaction by the true owner when they know the AP is there is enough to give implied consent to the possessor's presence.
	▼	If permission is ASKED for then there is a recognition of the rights of the true owner.
	•	If the permission is not granted and the possessor stays - then the action may be hostel
	•	Owner must affirmativly act to exert their ownership rights.
	▼	Objective test- Majority rule
	•	The state of mind of the possessor does not matter in establishing the claim- they may enter knowing it is the land of another with no intent to adversely possess it, but end up gaining title through OBJECTIVE actions of ownership.
	▼	What matters is the actions of the adverse possessor- Do they look like claims of ownership?
	•	Under the objective test- a person can be an adverse possessor without intending to be one.
	•	Regardless of the possessors state of mind- they may claim ownership adversly.
	▼	Subjective test- Minority rule
	•	The claimant must have a bona fide belief that they have title
	•	If they know that they do not possess title they cannot be adverse possessors
	▼	If you are well aware of the fact that you do not own the property- I'm not sure what to do with this section.
	▼	Majority Rule - almost all AP cases are founded on a mistake.
	•	Minority rule - adverse posession cannot be founded on a mistake
	•	State of mind doesn't matter
	•	The objective facts are what matters. 
	▼	Some states -Oregon - required an "good faith belief" founded on objective circumstance.
	•	"Objective" - like a deed that is incorrect. 
	•	Kind of does away with a "mistake" in the basic sense of the word.
	▼	How long does a reasonable owner need to visit their property?
	▼	Often enough so that the statute cannot run
	•	Ten year statute - go at least every nine.
	▼	Permission
	▼	What if you start as a tenant or a tenancy in common?
	•	You can become the AP if you give UNEQUIVICAL notice of you intent to possess
	•	"A permissive entry upon land does not ripen into adverse possession, no matter how long actual possession continues, until the holder disavows the ownership of the landowners by unequivocal conduct" - Estate of wells v estate of smith.
	•	Possession that is not hostile is presumed to continue as such unless notice is given.
	•	Your conduct has to be such that you are claiming the property to be you own.
	▼	Tacking
	▼	Successive adverse possessors will not gain title unless they can tack their length of time together to meet the statute.
	•	Personal property as well.
	▼	They can tack by being in privity of estate with each other.
	•	The first possessor voluntarily transfered their property to the subsequent possessor.
	•	A "reasonable relationship" creates a privity.
	•	Prior possesor will have a better claim than the new adverse possesser, and can eject the new adverse possesor.
	•	The ouster of on possessor in favor of another starts the time period anew.
	•	Taking runs against the owner and any future successors in interest. 
	▼	Payment of taxes.
	•	Usually in the west-
	•	Why - Land was given to the railroads to entice them to construct rail lines- they would develop the line and sell the land as it became more valuable as the time went by.
	•	So they changed the laws to prevent squatters from adversly possessing their land.
	•	Statute of limitations begins to run when they begin paying taxes in these states. 
	▼	Non - Possessory right
	▼	A prescriptive easement
	•	If you want to prevent someone from getting this - you must do something to stop the continuing trespass. 
	•	Can work the same as adverse possession
	▼	Do you have to compensate those who had their property taken  - Is there room for equity?
	•	Once you aquire title through adverse possession you do not need to compensate the true owner for their loss.
	▼	Mistaken Improvers
	▼	Common Law rule/ Old Majority Rule
	•	Good faith improver cannot recover the costs of improvements made to the other property
	•	The improver made the mistake, so it's unfair to take the property from the true owner.
	▼	Minority Rule
	•	You may recover the some of the value of improvements to the other property.
	•	Small minority - the true owner can be compelled to convey the property to the good faith improver, or pay for the value of the improvements.
	•	Some state - the value of the improvements must far outweigh the value of the land.
	•	Equitable relief is only available to those who act in good faith and are mistake in the location of the boundry
	▼	Lots of mid points between the minority and majority rules
	•	Property Owner can either pay for the improvements, or sell him the land. - Sommerville 
	▼	Realmark
	•	Good faith improver can recover  the greater of the cost of the improvement, or the amount that the land has been improved.
	•	Looks to the loss of the possessor. 
	▼	Repkei
	•	The lesser cost of above. 
	•	Looks at the gain to the owner
	▼	Another mid point - equitable relief limited to defensive actions
	•	You can charge for the fair rental value of the land.
	•	But you can defensively use your improvements to offset the rent charged to you for the occupation
	•	But if 'm not charging you back rent, you cannot get any value for your improvements.
	•	Improver can remove the improvement.
	▼	Fixture- personal property that is now part of the real estate- 
	•	Have it been attached to the land?
	•	Does the item fit in the real estate.
	▼	Is there intent to have it become a permanent addition
	•	the most important part of the three part test. 
	•	Can they be moved without damage to the premises?
	▼	3 additional options for resolving boundary disputes
	▼	Agreed Boundaries
	▼	There must be uncertainty about the location of the boundary
	•	Uncertainty must be in regards to a faulty survey
	•	There MUST be uncertanty in the written record.
	▼	You can't just agree because its more convenient.
	▼	Because of the statute of frauds.
	•	Any transfer of an interest in real estate must use a deed
	▼	How do you convey property without knowing where the boundry starts and stops?
	•	With out knowing, you can't convey the property.
	▼	HERE EXCEPTION to the statute of frauds.
	•	If you're uncertain about the true boundry
	•	and you agree to its location
	▼	and it goes on for a long time
	▼	what is a "long time"
	•	Many courts analogies to the statute of limitations, but not hard and fast.
	•	The Agreement is to how to locate the property line- not as to convey the property- that woluld violate the SOF
	•	there must be evidence that the new boundry was agreed to.
	▼	Aquiessesnce
	•	long acquiesence is evdence of an oral agreement- how long? usually shorter that the StOL
	▼	Estopple
	•	if you rely on the false assertion of the other party, they may be estopped from changing his prior assertion. 
	•	If you can't make out on adverse possession, unilaterally, you might make out based on mutuality.
	▼	What about personal property
	▼	When does the clock start ticking for the theft of personal property - Many different possibilities.
	•	When the identity of the thief is known
	•	When goods are stolen
	•	When the loss is discovered.
	•	When a demand is made for the return of goods.
	•	When the owner discovers where the goods are
	▼	As long as the owner is using reasonable means to activly try to find the property, the statute does not start to run.
	•	When you finally give up the statute begins to run.
	•	All of these can be modified by say when the true owner SHOULD have known
	▼	Recovery actions for Personal Property
	▼	Trover
	•	You get the value of the property
	•	Trespass is the analogous piece in real estate.
	▼	Replevin
	•	You get possession of the personal property back
	•	Ejectment is the analogous form in real estate. 
▼	Estates in Land
	▼	Basic Rules
	▼	Not a system based on reason.
	•	"A page of history beats a volume of logic"
	▼	No new estates can be created.
	•	Any new type will be pigeon holed into and existing type
	▼	Present Estates - typified by duration
	▼	Fee Simple
	•	"Ownership" as we generally know it
	▼	Fee- potentially infinite duration
	•	potential because of defeasibilty see below.
	•	Simple- no limitations on inheritability
	•	Allowed the free transfer to whoever the person who holds fee simple.
	•	"to X" words of purchase
	•	"and his heirs" - words of limitation - indicates the size of the estate. indicates an estate of indeffinite succession
	▼	DOES NOT require heirs
	▼	it is capable of inheritance, but it doesn't end if he dies w/o heirs.
	•	If you die w/o heirs, the estate will eschet to the state.
	▼	Life Estate,
	•	As long as the grantee lives and then the estate reverts to the grantor.
	•	Deed says : "To Troy"
	•	Lasts an indeterminite time becasue we don't know when you will die.
	▼	Life estates are difficult to work with-
	•	can't mortgage it- the banks interest would end if you died.
	▼	Fee Tail
	▼	"To B and the heirs of his body"
	▼	Only to b's (and the heirs of B) direct line of decent -
	•	NOT to collateral kin.
	▼	Statutorily removed in just about all jurisdictions
	▼	Except, Mass, Rhode Island, and 2 others
	•	They were origonal colonies, and never obolished the tail
	•	You can disentail by deed though if you wish.
	•	Used to avoid feudal duties
	▼	Functionally equivilalent to an infinite amount of life estes
	•	Depends on the lineal decendants having lineal decendants
	▼	Fee tail was defeated - eventually - by conveying a fee simple
	▼	"Bodily heirs" words of limitation and pruchase
	•	creates an interest in the heirs.
	▼	To A and the heirs of his body, but if he dies w/o issue, to B and his heirs
	•	If and when A's tail runs out, the property reverts to B
	▼	B has a remainder
	•	Because a reversion can only be created in the grantor's heirs.
	▼	What does the to" A and his bodily heirs, then to B"
	•	In a few states- Life estate in A, remainder in fee simple in A's heirs.
	•	In most states - Fee simple in A
	▼	In a smaller number of states - Fee simple in A, BUT if at A's death, and there is no surviving issue, B's interest is valid
	▼	Changes from an indefinite failure of issue construction, to a definit failure of issue
	▼	Either he dies w/o issue B takes, if he dies w/ issue, A's issue has fee simple
	▼	Doesn't have to go to the kids
	•	If he has kids, its enough to allow him to devise it to someone else. 
	▼	Lots of ways they made fee tail special
	•	To A and his Male heirs
	▼	Tenancies/Leaseholds
	•	Estate for a fixed period of time
	▼	Estates are now presumed to be in fee simple - no longer need the magic words.
	•	If you want to convey a lessor estate than fee simple, then you must use limiting language of the estate that you want to create
	▼	Freehold Estate
	▼	 holding in fee simple, tail, or a life estate was a freehold is called Seisin
	▼	type of possession that made you liable for feudal duties.
	•	Feudal duties kept the money flowing up the feudal ladder.
	•	Possession under a tenancy or leasehold was non-freehold
	•	There can never be an abeyance of seisin
	▼	Qualified Estates
	▼	Fee simple determinable
	•	Automatic reverter to the grantor
	▼	Fee simple subject to condition subsequent
	•	Grantor must take action after the condition subsequent to retake the land
	▼	Reversion
	•	When someone conveys an estate that is less than they have the reversion is the part not granted, and it remains with the grantor
	▼	Defeasible Estates
	•	Terminable at the occurance of some event
	▼	There is no special language that needs to be used to create a defeasable fee, as long as the language is clear.
	•	So long as, but if, in the event that. 
	•	But this language is often used in unclear ways.
	•	The mere fact that limitations on fees effect value, does not mean that they can be defeated.
	•	States have put limitations on the time limit of these types of restrictions.
	▼	Determinable
	▼	Terminates AUTOMATICALLY at the occurrence of some event.
	•	Act via operation of law on the specified event.
	▼	"...as long as booze is not sold"
	•	"as long as.." words of limitation.
	•	Words of limitation are required for the creation of the fee simple determinable.
	•	Words expressing the intent of the grantor do not create the limitation- only words of limitation can do that. 
	▼	Possibility of reverter- the posibility of the event happening
	•	The grantors possible future interest that will occur when the event happens.
	•	Interest retained by the grantor
	▼	Not the same as a reversion - don't try to reason through it. But it is the same as a reversion
	•	Reversion- could be that it happens on the natural termination
	•	Possibility of reverter - happens on a termination based on someones actions.
	▼	Subject to Condition Subsequent
	•	The fee may be cut short at the OPTION of the the holder of the reverter.
	•	Termintates when the person holding the reverter executes it after the occurrence of the event.
	•	"...but if booze is sold, O has the right to reenter"
	•	Known as power of termination, or a right of reentry.
	•	When the condition happens, the grantor has a cause of action
	•	Power of termination, not posibility of reverter.
	•	The courts will prefer to find a fee subject to condition subsequent over a determinable.
	▼	Don't forget about the fee simple subject to an executory limitation.
	•	basically a determinable fee that reverts to a third party- see future interests.
	▼	Future Interests
	▼	A future interest is not something owned in the future, it's owned now.
	•	Present ownership, future possession
	•	In most states now, all future interests are transferable.
	▼	Reversion
	•	Created in the grantor- where they retain an interst in something less than they own
	▼	Doesn't require special language.
	•	If you convey less than you have, it's automatic that the amount you keep is yours
	▼	Class Gift
	▼	Describes a Group of people who meet the description- and not an individual
	•	"Children" "Aunts"
	▼	Rules
	▼	Cannot create right of entry in a third party
	▼	To A and his heirs, but if booze is ever sold, then to B
	•	The Right of B can be retained by the grantor, but not dellegated to a third person
	•	No future interest in a third person can cut short a freehold interst
	•	No freehold estate can be created to commence in the future
	•	All these rules were based on seizen- SOMEONE must always hold seizen.
	▼	To get around this, the lawyers used equity courts 
	▼	"To A and his heirs, for the use of Mary and her heirs is she marries John"
	•	The Law courts ruled that the deed creates a Fee simple in A, and that Mary was out on the street
	•	BUT equity courts said this wasn't FAIR.
	•	This resulted in getting around feudal incidents- and the King was getting less money because everything was held in "use"
	▼	SO the king passed the statute of Uses,
	•	Legal title shot right through A and straight to Mary-when she marries John. NOW there is a new legal future interest.
	•	That is an executory interest.
	▼	Now we has the modern day Trust
	•	The trustee hold property to use it for the benifit of the benficiary
	▼	Doctrine of Merger,
	•	If one person owns 2 successive vested interests, they merge into one.
	▼	ANY TIME YOU CREATE A CONTINGENT REMAINDER, YOU CREATE A REVERSION.
	•	Becasue its always possible that the interest never vests. 
	▼	Remainder
	▼	Future interest created in the transforee, which MAY become possessory on the natural termination of the prior interest.
	•	MAY means - is capable of, Does not mean it must become
	▼	A contingent remainder cannot follow a term of years!
	•	it would be a executory interest.
	▼	O conveys to A for life. 
	•	A has a present interest
	•	O has a reversion
	▼	"...to A for life, and then to B"
	•	A has present interest
	•	B and O have future interests.
	•	B has life estate
	▼	"...to A for life, and the B and his heirs"
	•	O has no interest anymore
	•	A has a life estate, and B has a fee simple
	▼	B has a VESTED remainder
	•	Created in an accertained person
	•	there is no condition precedent.
	▼	B has to do NOTHING to take over the estate
	•	If B dies first, his heirs will take.
	▼	2 Types of remainders
	▼	VESTED
	•	Indefeasable
	•	In an acertained person and not subject to a condition precident
	•	Vested subject to partial divestment (subject to Open)
	▼	Contingent remainder
	•	A remainder that has not vested.
	▼	OR Created in an unassretained person
	▼	"..to John, if he graduated from Law School"
	•	The grantor must die, and then John must graduate and THEN he ges the estate
	•	A contingent remainder does not become possessory UNTIL the satisfaction of the contingency.
	▼	Alternative Contingent remainder
	•	Either of these 2 interests must vest
	•	One or the other must vest
	•	To B, if he 
	▼	Executory Interest.
	•	Interest in a transforee that does not meet the definition of a remainder
	•	or B takes possessing by divesting a prior future interest
	▼	Contingent future interests
	•	The mere existance of future interests makes alianation of property very difficult.
	▼	Doctrine of destructability of contingent remainders
	▼	"...to A for life, remainder to B if B reaches 21"
	•	If A dies before the contigency occurs, then the remainder is destroyed
	•	Because if it did not no one would hold seizen- A would be dead, and B is not yet 21
	•	Gone in most states because its modern aplicaibility is no more.
	▼	Rule in Shelly's case
	▼	"...to A for life, remainder to heirs of A"
	•	Was a way to defeat fuedal taxes- A dies, and then the heirs take possession because of their remainder.
	•	The heirs do not have to pay any inheritance taxes because nothing is inherited- they mearly took possession on their future interest.
	▼	There is a life estate, with a vested remainder in A
	•	When there is 2 estates held by one person, the smaller merges into the larger.
	•	Now there is a fee simple
	▼	Rule in Shellys case
	•	an attempt to create a remainder in the heirs of the grantee, results in an grant in A.
	•	Has been abolished in most states.
	•	Can be defeated by creating an executory interest
	▼	Doctrine of Worthier title
	•	O grants"...to A for life, remainder to O and his heirs"
	•	Another attempt to avoid taxes
	▼	O has the worthier title
	•	It is worthier to take by inheritance than by purchase
	•	Doctrine of worthier title also has been abolished in most other states
	•	These rules were devised to get allow the free transfer of land, and to insure that the taxes get paid.
	▼	Rule against perpetuities
	•	Overridding rule that applies to all future interests, remainders and executory interests.
	▼	You can't crete a future interest that will remain contingent too long
	•	nothing more than a time limitation against future interests.
	▼	"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."
	•	It must vest OR FAIL
	▼	If its corporations- there are no lives to measure against
	•	so the period is simply 21 years.
	▼	".. to A for life, then to A's children for life, then to A's great grandchildren for life...."
	•	Was used after the fee tail was abolished to keep land in the family.
	▼	the heirs remainder was subject to partial divestment
	•	Allways treated as contingent, because there is always a potential other kid out there.
	▼	How long can these interests remain contingent?
	•	21 years after living people die-
	•	Amounts to control for 2 generations
	▼	Gee v. Audley (1787)
	•	I leave 1000 pounds to my niece, Mary Hall, and the heirs of her body, and if she dies without issue, then to the daughters then living of John and Elizabeth Gee.
	•	The moment the interest is created, the interest is either wholly valid or wholly void.
	•	There is a conclusive presumption that ANY one is capable of having children.
	•	Unborn Widow Trap-
	▼	Modifications
	•	The only facts that can be taken into account in the analysis of the RAP are those around when the grant is created.
	▼	Cy Pres Doctrine- The court can reform the gift to comply with the RAP to allow it to stay valid, but still meet the general intent of the origonal grant.
	•	American invention to keep things valid
	•	Wait and See Doctrine- The RAP is concerned with POSIBILITIES, but with this doctrine, we wait and see if the rule actually become violated on the true facts.
	▼	USRAP- Uniform Statutory RAP- Changes the common law rule to lives in being plus 21 years OR 90 years total.
	•	Adds wait and see also
	•	Exempts commercial transactions.
	•	Major criticism about the RAP- the RAP voided a lot of grants that actually turned out OK.
	•	Abolish the rule - a handful of states have done this.
	•	
	▼	Rule against restraints on alienation
	•	Prevents conveyance of property that may never be sold
	▼	If found mostly on limitations on the use of property and not on the outright sale
	•	technically not a limitation on alienation
	▼	but it may be in effect a restraint on alienation
	▼	"...to a and his heirs but it may only be used as a public park"
	•	who could you actually sell it to though?
	•	Courts have said that when it is a use restriction, they will treat it as a alienation restriction.
	▼	Doctrine of Waste
	•	conduct by the current tenant that permanently impairs the value of the land when another holds a subsequent estate.
	▼	You can tare down a building that has a remainder attached
	▼	those that hold the remainder are entitled to the SAME THING that you received as a life tenant
	•	The rights of the life tenant are subject to those of the remainderman
	▼	Common law view- you can't do anything to change the property as a life tenant
	•	This strict view has gradually been modified over the years.
	•	Still true that a remainderman has a cause of action in waste against the life tenant who changes the property
	▼	Affirmative waste
	•	deliberate destruction of the property.
	▼	Remidy- you loose the thing wasted and get treble damages
	•	What? this comes from the original waste statute of 1433.
	•	Also can sue for an injunction
	▼	Permissive Waste-
	•	Allowing the property to fall into disrepair.
	•	failing to pay the taxes and allowing the property to be sold at a tax sale is treated as permissive waste.
	▼	Ameliorating waste- Brokaw House
	•	when the change to the land increases its value.
	▼	actionable when
	•	the grantor intended to pass the land with specific building on it to the remainderman,
	•	the building can reasonably be used for the purposes built
	▼	If the current use of the house is undesireable- eg- residence in an area now commercial- then the change will be allowed if it increases the properties value
	▼	Melms v. Papst - As long as you are increasing the value of the property, its ok
	•	But if the grantor wants what is specifically granted then you can't change- even if the change is to increase the value.
	▼	Partition
	•	If the co-owners get along, then its ok
	•	But if they don't get along, then you can ask a court to divide the property up so each party has their own interest.
	▼	Co Ownership
	▼	Joint Tenancy
	▼	Right of Survivorship in the other Joint Tenant
	•	A, B, C, joint tenants- A dies. A's share transfers to B and C, with A's heirs not getting anything.
	•	The individual does not get to devise their share in a will- it MUST transfer to the other tenants
	•	Each person holds a share of the title that cannot be sold or transfered individually
	▼	Common law has a presumption in Joint tenancy
	•	Preferance against fragmented ownership in real estate
	•	Why? the lord wanted to be able to look to one person for the payment of feudal duties.
	•	Shared responsibility was difficult to enforce 
	▼	Statutorily - There is a preference AGAINST the joint tenancy to a presumption in favor of tenants in common.
	▼	To overcome the presumption, you must clearly state your intention.
	•	If your intent isn't clear in the document- the court will judge it to be a Tenancy in common.
	▼	Don't say: To A and B in joint tenancy, and to their heirs-
	•	This is ambiguous- heirs don't get anything in a JT, the other JT's get everything.
	•	This wording takes part of JT and part ToC
	•	BUT does this grant create a JT in fee simple? "to their heirs" indicates a fee simple.
	▼	Does this men we cannot create a JT in fee simple at common law?
	•	No- The presumption at Common Law was to the JT, so the specialized language wasn't needed. But it is now.
	▼	"To A and B as joint tenants" may be not be enough.
	•	Some states require the negation of the tenancy in common
	•	The safe way to say it: "To A and B as joint tenants with a right of survivorship and not as tenants in common"
	▼	Some states even prohibit the JT
	▼	Oregon- Joint tenancies are abolished
	•	But it doesn't say you can't create a right of survivorship
	•	What if you try? You clearly and directly attempt to create a right of survivorship
	▼	What about a joint life estate with alternative contingent remainders
	▼	To A and B for life, and if A dies first, to B and his heirs, if B dies first to A and his hers.
	•	Alternative contingent remainders.
	▼	Common Law Required 4 Unities
	▼	Joint Time,
	•	Begins at the same time
	▼	Joint Title
	•	Conveyed to them in the same title
	•	H cannot convey "to H and W as TiC"
	▼	BUT remember- you can't convey to yourself at Common Law- so if you wanted to create a TiC you had to convey to a straw man to maintain unity of title.
	•	Mostly overrulled by modern statute
	▼	Joint Interest
	•	Shares in the estate must be equal.
	▼	The joint interest need not cover the entire estate
	▼	One half to H and W as joint tenants, and one half to A
	•	H and W would be joint tenants as to themselves, and would be tenants in common with A
	▼	Joint Possession
	•	Each has the right to possess the whole
	▼	If any of these fails, then it reverts to a ToC
	•	If you want to convey the a JT to someone when you already to have title, use a straw man to convey the title too, and then have them convey the tittle to the 2 JT to preserve the common law unities
	•	This has changed in many states now. The straw man was a trap for the unwary. The unities are not required in many states now.
	▼	Severing the JT
	•	Conveying your entire interest severs the JT and the right of survivorship
	•	Does not require the other JT to know about the severance.
	▼	A lease severs a JT in common law
	•	execution of a lease servers the unities. 
	•	Now: less than a conveyance of the entire interest depends on intent.
	▼	Common Law- Mortgage severed unity of title
	•	Modern Law- Authorities are split. 
	▼	Joint tenancy in states that allow it: poor mans will
	•	Oregon doesn't allow the JT in real estate, but it does in personal property.
	•	Why? When one dies, it makers probate easier. ALL the personal property goes to the other.
	▼	In states that have abolished the JT, like oregon, you can still have the equivilent of a JT in two life estates with alternative contingent remainders, each naming the other as the benificiary.
	•	The functional equivilent of JT without calling it that.
	▼	BUT the unilateral destruction part of the JT is not part of it.
	•	This makes it the functional equivilent of Tenancy by the entirety, a nonseverable right of survivorship.
	•	Now there is the possbility of a Tenancy by the entirety in non-married people.
	•	Murder of one tennant converts the estate to TiC. 
	▼	Tenancy in Common
	•	Concurrent ownership of a separate and distinct share of the entire property, that is not divided among the cotenants
	▼	No right of survivorship in the other tenants
	•	A, B, C- A dies- A's share in the property divests the her heirs and NOT to the other Tenants in the property
	▼	What does a ToC Own?
	▼	A proportional share of the property.
	•	2 ToC- each has half a share
	•	3- each has one third.
	•	Tenants in common can dispose of their share in the property as if they were sole owners.
	▼	Common law presumed that a conveyance "to A and B" where A and B were not married, created a tenancy in common
	•	A joint tenancy was created by an express grant only.
	▼	Tenancy in the Entirety
	▼	A joint tenancy between married couples holding as one person.
	•	It is a fiction in one person. 
	•	Requires the 4 unities
	▼	When a tenancy by the entirety terminates, it results in a Tennancy in Common
	•	Practical -Do the parties desire a JT with a right of survivorship when they divorce? Not likly
	▼	No unilateral servance
	•	Different between this and a JT.
	•	Divorce, of course destroy this.
	▼	Abolished in many states.
	•	But in those that retain it- there is a presumption that a conveyance to a married couple is a tenancy by the entirety.
	•	You cannot have a TE IN A COMMUNITY PROPERTY STATE
	▼	Right of survivorship may be severed by divorce, mutual agreement, or execution by a joint creditor
	•	CANNOT be terminated involuntarily.
	▼	Community Property States.
	▼	Property acquired during marriage is the property of both partners
	•	In a sperate property state- you work, your money, your property.
	•	In Community property, you work, each has half the pay, each has half the pay. It doesn't matter whose name is on the paycheck.
	▼	Incidentially, community property states have 2 types of property,
	•	Property acuired before marriage- seperate property owned by the individual
	•	Community property - acuired after marriage, owned by the community.
	▼	Everything is presumed to be community property but it doesn't have to be.
	•	Married couples can "opt out" by written agreement.
	•	If its commuity propert, each has half, and the right to dispose of their interest in the property, though will or otherwise.
	▼	Transmutation doctrine
	•	Parties can, by agreement, transmute the property into a different type of property
	▼	Tracing-
	•	If the money used to buy something is seperate property( you had the money before the marriage) then property acuired with that seperate property, is seperate property.
	•	Gift, devise, or bequest during the marriage is seperate property
	•	Seperate property deposited into a community account becomes community property.
	•	You can change the nature of property a variety of ways
	•	In some states, you can hold title as survivorship community property- makes community property look exactly like JT
	▼	What happens in case of divorce/
	•	Seperate property stay seperate, community property becomes seperated
	▼	Death?
	•	Half of community property and all of personal property can be willed away
	•	But in case of death w/o a will, most will be (probably, depends on the state) inherited by the other person
	▼	Death/seperation in seperate property states
	•	Marital property is "equitably devided"
	•	Partners are, depending on the state, presumed to have contributed equally to the aquisistion of martial property.
	•	Division works the same in practice as in a commuity property state- seperate prop goes to the individual, maritial property get divided equally.
	▼	The name on the title means a lot in seperate property states.
	•	The name on the title controls
	▼	When you get into divorce court, the distinction between the two types of state goes away. Almost identical EXCEPT:
	•	Comm Prop, state MUST give back seperate property- not so in seperate prop states.
	▼	Marvin vs Marvin
	▼	Simply living together in maritrisious relationships doesn't mean you can't aquire property rights by agreement
	•	Threw out years of case law
	•	Just about every state that has considered the issue has agreed with its reasoning.
	•	Washington applys its community property laws to cohabitants
	▼	Economic Consequences
	▼	Can the debts of one tenant be satisfied by a lien against the property
	▼	Married Tenants in the entirity - Maybe -some states - the property of the tenancy in the entirty cannot be used to satisfy the debts of one of the cotennants.
	▼	Group 2- Debts of one can be satisfied by the property of the cotenancy.
	•	What can be sold? Not much- becasue the unlike the JT a sale in TE does not sever the TE. It the Other spouse outlives the debtor, tough luck for the purchaser.
	•	You'de be buying the right to use the property during the life of the tenant- who'd want that?
	•	In reality no one want to do this and there is lots of protection in holding in TE
	•	Depending on the state TE affords some, lots, or absolute protection from the creditors of one of the TE
	▼	If you're in a community property state- the comm. prop. can usually be used to satisfy the debt of one tenants
	•	But you can opt out of the presumption of community property to protect yourself
	•	In a seperate prop state, the debts of one can usually not be satisfied by the property of the other
	▼	Tennancy in common- your interest in the property can be sold, and the purchaser of the property takes the place of the old tenant.
	▼	But when you have a JT, what do you own- and therefor- what can they sell?
	•	At the execution sale, the JT is severed, and now its a tennancy in common
	•	As the other JT, you loose the right of survivorship, and loose the ability to take title to the whole property if the other side dies. 
	•	A judgement lien does not sever the JT, but the sale of the interest at auction does sever the JT.
	•	If they don't foreclose the lien, and the debtor dies, the right of survivorship kicks in and the other cotennent recieves it all, and the creditor does not receive anything, because the debtor has no interest when they die.
	▼	Transfer in fraud of creditors
	•	If you purposely transfer you property interest to avoid the reach of creditors
	▼	If at a time when you are insolvent, you transfer property for less than full and adequate consideration, with an ACTUAL INTENT to hinder your creditors, then the transfer can be set aside in a suit by your creditors. 
	•	Must for for less than full and adequate consideration
	•	Must have intended to hinder creditors
	•	Must have been insolvent.
	•	The creditors must be able to reach the property to begin with.
	▼	Sawada v. Endo - There was no fraudulent transfer because the creidtors could not reach the property to begin with
	•	It doesn't matter if he keeps or transfers the property, the creditors couldn't get to the property no matter what
	•	If you own the property solely, and transfer INTO a TE to avoid the creditors, the creidtor must prove that the transfer was solely to avoid creditors.
	▼	TE is subject to claims by the US for claims of taxes.
	•	The government always wins. 
	▼	Can one tenant be sued is someone is injured on the property
	▼	joint several liabilty for commonly owned property.
	•	Exception to general tort rule that there is no joint liability in tort for unilater actions of one person
	•	If its an apartment, the renter is only liable for their individual apartment, and the common areas are owned by the complex
	▼	In Condos individual unit owners share in the ownership of the common areas.
	•	You are liable for your pre rata share of ownership in the property.
	▼	In uniform common interest ownership act
	•	the individual owner is not liable, but only the homeowner's association is liable- AND the association must carry appropriate insurance.
	•	This insulates the individual owner from liability for injuries in the common area. 
	▼	If one person takes title to property that the other paid for...
	•	There is the presumption that the one hold title as the trustee for the both of them. A resulting trust arrises.
	•	The presumption is the that the person who pays for the property is going to want to enjoy the property.
	▼	Common law- If the husband pays and title is in wife, then the presumption is that its a gift., but if its the other way around, the presumption is the resulting trust.
	•	Why? Women couldn't manage money, so the trust was for her protection. Why would a woman gift real estate? Thats stupid- but its ok for the man to do it. 
	▼	Fazio
	▼	With cotenants- and one is in possession
	•	Profitis of your labor on the land are yours, but the COTOP(cotenant out of posession) can receive an offset of the reasonable rental value of the COTIP's possession
	•	Ouster- Denial of cotenants equal rights of possession.
	▼	Once you've been ousted, you can reveive rental income from the COTIP
	•	If you have not been ousted, then there is no right to income from the COTIP
	•	As a owner, you are always liable for the mortgage payments, regardless of who is in possession.
▼	Landlord Tennent
	▼	Commercial Tenancies
	•	Follows the common law generally Still treated as a conveyance in land
	▼	License
	•	A privilege to act, and NOT a present possessory estate, it does not run with the land, and so is not generally assignable.
	•	Can be oral or written- not a conveyance in land- so it doesn't need to comply with that part of the statute of frauds.
	•	Need not be conferred  upon consideration or rent and need not deliniate the specific space to be occupied
	•	You can USE the property, but the owner still owns it.
	•	A personal right to use property, not assignable. 
	•	No matter if its called a lease or a licence, courts will construe it by its terms. If you call it a lease, and its actually a license, then its going to be construed as a license. The court will consentrate on the label that the court attaches.
	•	Terminates at will of the land owner or licensee
	▼	Lease
	•	An exclusive possession of the subject premises as against all the world, including the owner of the property.
	•	Confers an estate in land
	▼	Transfers all the rights of an owner for a periond of time
	•	Like the right of exclusion.
	•	Must be in writing to satisfy the SToF
	•	Nonfreehold estate- there is a definite date of termination
	•	No matter if its called a lease or a licence, courts will construe it by its terms. If you call it a lease, and its actually a license, then its going to be construed as a license.
	•	Leases can be assinged and sublet
	•	Property owners are not then liable for loss on leased property. Except statutes make it so that they cannot avoid liability for negligence.
	▼	Is the payment of rent inconsistant with a freehold estate?
	•	The personal services of the feudal system turned into rent for a life estate- so no its not
	▼	Tennacies end when?
	•	At the time specified.
	▼	You get the right to exculsive possession
	•	As long as you are still paying the rent nothing compels you to occupie the space, unless the lease specifies ocupancy.
	•	Interests in property can be transfered too
	•	When the property is condemed- the lease is terminated.
	▼	Periodic Tenancy
	▼	The period of the lease is determined on how the rental rate is calculated
	•	7000 a year? Yearly lease- Even if you pay the bill monthly. 
	•	Automatically renews itself for a new period - unless and until someone terminates it
	•	Month to month- pay every month, renews for another month
	•	A periodic tenancy is the presumed default. Its what you're left with if there is nothing else.
	▼	Common law notice to terminate a year to year lease was 6 months.
	•	Why 6 months? Most Common law leases were agricultural- growing season and planting?
	•	Any other period- one full period notice is due.
	•	You must give adequate notice.
	•	Notice - to be effective must be given during the period and six moths prior to the expiration.
	▼	EG: Tern expires Dec 31st 2008- notice given Nov 1st- not in time to cancel before auto renewal AND it doesn't cancel the lease that will auto renewal on Dec 2009. You have to give notice AGAIN DURING THE PERIOD.
	•	But most courts now will effect the notice for the next year.
	▼	Residential Tenancies
	▼	Largely has departed from common law and is governed by statute
	•	Uniform Landlord Tenant Code.
	•	Maybe shouldn't be covered in property
	•	It largly a contract now
	•	Month to month tenancies? 60 days notice. 
	▼	Rent Control
	▼	Tennancies in common can get arround eviction restrictions in rent control
	•	Each tennant has an ecual right to tenancy in common.
	▼	Doesn't terminate on death
	•	If the family is still living there, then they cannot be evicted generally- would go on forever, until the family dies out.
	•	Results in a perpetual
	▼	How can they be evicted?
	•	Nonpayment of rent
	•	QWaste
	•	Illegal activity
	•	Public Nuisance.
	▼	What if you want to live there yourself?
	▼	Depends on Jurisdiction
	•	It might be Ok
	•	Or it might be a violation of due process
	▼	Vacancy Decontrol
	•	If the apartment becomes vacant, then the owner can raise the rent
	▼	Rent control continues only as long as the apartment is occupied
	▼	NY LAW- A transfer to a family member is not a transfer
	•	Rent control continues as long as its to a family member.
	▼	A gay couple counts as family under the statute 
	•	Traditional legal def: blood or marriage.
	•	The court takes a functional approach.
	•	If the place burns down, you are off of the hook.
	▼	Federal Fair Housing
	•	Can't discriminate based on maritial status
	•	If you choose to be a landlord you have to folow the federal fair housing act
	▼	Can't advertise in such a way as to suggest discrimination
	▼	Us an ordinary reader test
	•	Would an ordinary person think that this ad was discriminatory
	▼	Mrs. Murphy Exception
	•	If you are renting out space in your own home you have a lot more leeway as to who is an acceptible tenent
	•	If you're looking for a roommate then there's lots of leeway.
	▼	A Flat prohibition on children is not permissable.
	▼	That is discrimiation based on "Familial Status"
	▼	But: too many people in too small of space is a legitimate buisness purpose.
	•	Thus - if they have 5 kids for 2 bedrooms, then there could be grounds for denying occupancey.
	▼	How do you get out of your lease?
	▼	Do you view it as a Contract?
	•	You can terminate because of the other parties breach
	▼	DO you view it as a convince of land?
	•	You can't terminate because of the other parties breach
	▼	At common law - promises are mutually independent, unlike K's where the promises are dependent on each other
	▼	All common law conveyances are independent
	•	My promise to pay is separate from your promise to paint the place.
	•	Thus - the actions that you can take will depend on what state you are in and their view of how a conveyance of land works. 
	▼	Covenant of quite enjoyment.
	•	You lease to me the land, and you and your agents will not interfere with my quite enjoyment of the land.
	•	If the landlord interferes with your quiet enjoyment of the property, then you can terminate the lease.
	▼	Transferring of leases
	•	Unless stated otherwise, leases are freely transferable.
	▼	Restrictions on alienation of a lease MAY be ok, unlike restrictions on alienation of land.
	▼	Disabling Restrain
	•	Any attempt at conveyance is void
	▼	Promissory Restraints
	•	Tenant promises not to transfer.
	•	If they do any way- that puts them in breach and the landlord can sue for damages.
	▼	Forfeiture Restraints
	•	Attempts to transfer result in the forfeiture of your interests.
	•	Courts are mote in favor of these.
	•	Forfeiture restraints give the tenant an option to get out of a lease. 
	▼	Land lords must be reasonable if they deny a transfer of the lease.
	•	EG: proposed tenent has bad credit
	•	Common law view- consent can be refused for any reason or no reason. 
	•	If there are retrictions
	•	Duty to Mitigate
	▼	No transfer Clauses and Bankruptcy-
	•	A Lease is property interest, and is thus saleable.
	▼	Bankruptcy Law Trumps state property Law
	•	A lease is valuable, and is a sellable interest for a lessee in bankruptcy.
	•	Thus - clauses that restrict transferability will not be enforced when the tenent is banckrupt.
	▼	Tenant abandonment.
	▼	Landlord has 4 remidies
	▼	When the tenant walks out - the landlord can sit around and sue or rent. 
	•	But this leaves the property vacant, and you have to sue a lot.
	▼	Accept the tenant surrender and relet for themselves
	•	Effectuating a release of the tenant. 
	▼	Surrender by application of law
	•	Conveyance of land must be in writing
	•	You can't terminate unless the tenant reconveys the land back to you
	•	The law implies that abandonment is an offer of surrender.
	•	And this gets around the statute of frauds writting requirements.
	▼	Re-rent and apply the new rent collected, apply the new rent to the owed rent, and charge the old tenant with the difference
	•	Use when the tenant has assets that you can go after
	•	And when the rental market has fallen and you can't re-rent for the same amount. 
	▼	Anticipatory Breach/ Repudiation
	▼	But the rent is collectible only when rent isn't paid in time
	•	There is no remidy for july's rent until july.
	•	You can accelerate the payments, and sure for them all at once
	•	not all state recognise anticapatory breach
	▼	You have a duty to mitigate damages in contracts
	•	Duty to use reasonable steps to avoid avoidable losses.
	•	Antiipatory breach raises all kinds of problems.
	▼	With a commercial lease, is rent acceleration allowed?
	•	Well its a negotiated instriment, so there is little common law application.
	▼	Assignment v Sublease
	•	A, Landlord. B Leasee. C Subleasee
	▼	Assignment and sublease are only conserned with the interest in the property, and not the amount of money
	•	If you sublease/assign the property for a profit or loss it doesn't really matter - what matters is the quantity of the assignment
	▼	Rule in dunthor's case
	•	If the landlord waives a clause preventing transfer, then you waive it against future transfor also
	•	Old english common case
	•	Abolished in almost all states now.
	▼	Sublease
	•	The original lessee retains some sort of interest in the leased property.
	•	A is B's landlord, B is C's landlord
	▼	Creates a new tenancy out of an existing tenancy
	•	Can be a physical component, or a temporal component
	•	As long as its less than "all" of your interest.
	•	No privity of contract between the landlord and sublessee
	•	No privity of estate
	▼	No relationship between the sublessee and the landlord
	•	And hence no basis for a lawsuit.
	▼	BUT- landlord can terminate the lease
	▼	And subtenants interest disappears
	•	Becasue the subtenants interest depends on the tenant
	•	Although there is no basis for suit against the subtenent, that doesn't mean they can't kick them out
	▼	Assignment
	▼	The original lessee does NOT retain any interest in the leased property
	•	A transfer of ALL of the tenents interest
	•	A is C's landlord
	▼	Creates privity of estate
	▼	What's privity of estate?
	•	When B's estate is derived from A's estate
	•	The origonal lessor has no such right against a sublessee
	•	Upon Assignment- the privity of estate between the lessee and lessor is destroyed and replaced by a new one between the sublessee and the landlord.
	▼	May or may not be privity of contract between sublessee and landlord
	▼	IF the tranforee agrees to assume the liabilities of the lessee then there is privity
	•	If not, then there is no privity.
	▼	Landlord can still sue the origonal tenant on privity of contract, and the assignee on privity of estate.
	•	The transforee would only be liable for the time that they are in possession.
	▼	Sale by the Landlord
	▼	The sale by the landlord doesn't affect the lessee's rights-
	•	The landlord essentially is selling his reversion
	▼	Estopple cert
	•	A document that contains all the material terms of the lease. 
	•	Used in commercial leases.
	•	This is so the prospective purchaser isn't surprised by new terms in the leases that may affect the value of the property
	•	If the estopple certificate has misinformation in it- the leasee will be held to the terms of the certificate.
	▼	Tenants who refuse to leave
	▼	Common Law View
	•	You can use whatever force needed to retake the property when the tenant is in default
	▼	Modern View
	•	Self Help is frowned upon.
	•	THe courts are the prefered method to evict the deadbeat tenent.
	▼	Violent self help is not allowed pretty much anywhere
	•	Some places don't even allow peaceful self help.
	•	Violent self help may make the landlord civially liable
	•	Refusal to allow the tenant to reenter to get personal belongings could elevate the taking to a forceful taking and subject to the landlord to damages.
	▼	Also- you can't render the premises uninhabitable and force the tenant out - Residential
	•	Uniform Residential Landlord and Tenant Act grants trebile damages
	▼	Forceable entry and detainer
	•	Landlord still need a  fast remedy if self help isn't available
	▼	If the tenant has failed to pay the rent within X days then
	▼	You get a quick hearing
	•	Its better than waiting for the regular trial docket.
	▼	The issues to be tried are limited.
	•	Is there a right to possession by the landlord?
	•	Affirmative deffences cannot be raised.
	▼	If you appeal, the opinion will be stayed, and then you could raise the affirmative deffences.
	•	And there are often bond requirements with the appeal
	•	Doesn't protect a licencee, only a lessee.
	▼	Lease provisions may not allow for self help repossesison counter to statute
	•	At least in residential leases.
	•	In commercial leases, there is more defference to freedom of contract
	•	Unlwful Detainer
	▼	Banckruptcy
	▼	Bankruptcy protects equitable rights
	▼	Once a banckruptcy case is filled, all cases in process are stayed
	•	So the eviciton proceeding is stayed and the tenant gets to stay in the property
	▼	BUT you must have an equitable interest
	•	And you may not have an equitable interest if your lease is expired
	•	BUT mere posession can be construed as an equitable interest.
	•	A lease is a property right
	▼	You CAN get future rent in some jurisdictions after eviction, if there is an explicit clause in the lease that allows for it.
	•	It's not "rent" per se, but contract damages. "Rent" is paid in consideration for an interest in land, and after an eviction, there is no interest in land anymore.
	•	I DON'T KNOW WHERE THIS SECTION BELONGS
	▼	Holdover
	▼	Tenant doesn't vacate when they should
	•	Either the term is up and they don't leave
	•	or they gave notice under a periodic tenancys and didn't leave.
	▼	If the tenant breaches a lease a landlord may
	•	terminate the tenancy and sue for damages under contract theory
	•	elect to continue the tenancy and sue periodically for rent as it accrues
	•	terminate and retake possession and absolve tenant from liability.
	▼	If they holdover, the lease can automatically renew for the same term
	•	BUT STOF prevents a lease for more than 1 year, w/o a writting
	▼	so if it was a 5 year lease, you don't get another 5 years, because that would violate the STOF
	•	But you get 1 year
	•	normally, you get another term of the same length as the origonal lease.
	▼	Law implies a new lease on the same terms as the old term
	•	BUT if the landlord gives notice of new terms in the case of holding over, and then holds over, the holdover counts as an acceptance of the NEW terms.\
	▼	Notice MUST be given before the expiration of the origonal lease
	•	Otherwise the old terms will bind
	▼	Tenant at sufferance
	•	The term of the type of tennacy after the exipration of the lease, and before the landlord has decided what to do with them.
	•	Can treat them as a tenant for a new term,
	•	Or can hold them as a tresspasser
	▼	How long does the landlord have to decide?
	•	A REASONABLE TIME
	•	But if they take a rent check, then they have elected to hold them to a new term
	▼	If the teneant moves out while the landlord is deciding,
	•	then the landlord can elect to hold them to the new lease despite them moving out before the ellection.
	▼	If the landlord cannot deliver the premises becasue of a holdover
	•	the tenant can sue for damages or two months rent
	•	and consequential damages, like living expences while you live in a new spot while you can't posesse the premises.
	▼	American Rule
	▼	lessee required to be placed into legal possession
	•	Lessee would sue the holdover tenant and not the landlord
	▼	English Rule
	•	there is an implied covenant to place the lessee in actual possession
	▼	Regardless of what rule- the landlord breached a K by the new tenant if the hold over has a new lease
	•	The landlord gave 2 leases to the same property
	•	So the landlord 
	▼	Defective Premises
	▼	Caveat Emptor
	•	Buyer beware
	•	Seller makes no promises about the condition of the property
	▼	Buyer has a duty to inspect the premises to determine their saftey and suitability for the purposes for which they were leased BEFORE entering the lease
	•	Under the law of waste, it is the tenants implies duty to make most repairs.
	▼	Landlord must keep the place ahbitable
	•	For health and safety
	•	Its not an unlited obligation to keep the whole place in perfect shape
	▼	The land lord CAN require the tenant t keep up the premises
	▼	But In single family setting-
	•	It must be in writting
	•	It must be in good faith and not for the purpose of evading obligations of the landlord
	•	The consideration is the granting of the lease
	▼	Other than single family residential
	•	good faith not for the purpose of evading obligations
	•	agreement does not diminish or affect the obligation of the landlord or other tenants in the premises
	▼	it must be in a SEPERATE docuement- not the lease
	•	ANd the performance of this seperate agreement must not be enforceable by termination of the lease.
	•	MUST BE SUPPORTED BY ADEQUATE CONSIDERATION
	▼	Tenants have an obligation not to commit waste
	▼	Involuntary waste- permissive
	•	Failure to prevent damage- Ie negligence
	•	Failure to act like a prudent owner
	▼	Equitable waste
	•	Malisious acts where the tenant is releived for liability of waste
	▼	You get a life estate, and say that the tenant is not responcible for waste
	•	IE life tenant can act like the owner
	▼	Courts of law couldn't afford releif to this type of waste because it was contractual
	•	But the equity courts would enjoin malicious waste- ie waste w/o a purpose eg burning down the forest for fun.
	▼	Voluntary waste- commisive
	•	Waste by an affirmative act
	▼	Amelioratign waste
	▼	Brokaw House
	•	Waste that increases the value of the property.
	•	Even though no party has an affirmaitvie obbligation, you can create obbligations in the lease
	▼	Covenant to keep in repair
	•	The tenenet may not have to rebuild if building destroyed
	▼	Who is liable for repairs imposed on the building by code violations
	▼	Factors affecting who has the duty to repair defective premises when the lease is ambiguious as to who has the duty to repair:
	•	The relationship between the cost of the curitive action to the rent reserved
	•	The term for the which the lease was made
	•	The relationship of the benifit to the lessee to that of reversioner
	•	Whether the curitive action is structural or nonstructural
	•	The degree to which the lesee's enjoyment of the premises will be interfered with while the curative action is being undertakem
	•	The liklyhood that the parties contemplated the application of the particular law or order involved.
	▼	Can the tenant in a commercial lease leave if there premises become unsuitible for the purposes
	▼	Wesson v. Leone Enterprises
	•	Common Law view that tenant is liable for rent if the building is rendered uninhabitable.
	▼	But statutes have changed the balance of the common law, and now leases look more like contracts than conveyances of land.
	•	Especially in residential tenants
	▼	Independant covenants are slowy going out of style.
	•	Old rule - breach of one covenant got you a cause of action in court, it didn't give you a right to withhold rent.
	▼	We now have dependant covenants where my duty to pay rent is dependant on the landlord's duty to provide premises that were contacted for
	▼	Covenant of quiet enjoyment and covenant to pay rent WERE ALWAYS DEPENDANT- EVEN AT COMMON LAW
	•	Violation of either justified witholding of the other.
	•	Thus: a breach of the duty to provide
	▼	Constructive Eviction
	•	A legal fiction that has the same effect as an actual evicition
	•	A breach of the covenant of quite enjoyment
	▼	REQUIRES that the tenant leave
	•	We're assuming a real eviciton has occured, and for that to happen, you have to give up possession.
	•	If your neighbor is loud- you can move out and withhold rent IF the land lord has control over the action AND has failed to act.
	•	Constructive eviction can be partial also
	▼	Modern View
	•	The premisis need not be rendered uninhabitable.
	•	They simply must be deprived of a significant inducement in entering into the lease.
	▼	For constructive eviction THERE MUST BE a duty for the landlord to do soemthing
	•	If there is no duty, then there cannot be constructive eviction.
	▼	Residential
	▼	IF the landlord fails to fix the heat, then the tenant can quit the premises after 14 days notice of the failure to repair
	•	Uniform Residential landlord tenant act
	•	The common law provides a remidy IF there is a duty
	•	The uniform landlord tenant act provides both a duty and a remidy
	▼	The commercial lease-
	•	absent a statute, forfeiture is not a remidy for waste by the landlord.
	▼	Implied warantee of habitability in residential leases
	•	The obligation is that the landlord will provide housing that conforms to local housing codes. 
	▼	Many statutes allow for rent withholding
	•	Repair and deduct- up to half the monthly rental
	▼	Rent control
	•	If your premises are not up to code the rent control board can decrease your rent Sterling v. Santa Monica Rent Control Board.
	▼	The purpose is to compel landlords to provide same and sound houseing
	•	Has largly been a failure.
	▼	Liability for defective premises.
	▼	Who can be sued?
	•	Genral rule- can't sue the landlord
	▼	Landlord has no control over the premises.
	•	There is no tort duty
	•	Becasue a lease is a conveyance in land- landlord is a stranger.
	•	Landlord has deeper pockets normally.
	▼	Landlord may be sued in some cases
	▼	Undisclosed Dangerous Conditions Known to Lessor and unknown to the lessee
	•	Landlord knew, and lessee didn't know.
	•	If the tenant knows, then its the tenants responcibility to warn the guests.
	•	conditions dangerous to persons outside the premises
	▼	premises leased for admission of the public
	•	only an existing condition when the lease is entereed into- the landlord has reason to know
	•	parts of land retained in lessors control which lessee is entitled to use
	▼	there the lessor contracts to repair
	•	there is covenant to repair
	•	the disrepair creates an unreasonable risk to person upon the land
	•	the lessor fails to exercise due care
	•	and the landlord know about the condition.
	▼	negligence by lessor in making repairs.
	•	Even if there is no duty, if they attempt to repair, they do it w/o negligence.
	▼	It is not possible to be liable for the acts of third parties simply by being a landlord.
	▼	It depends on the foreseeability of the harm
	▼	If there are lots of robberies, and the landlord knows or has reason to know about the robberies- then they have a duty to protect against it- Ann M.
	•	Previously- foreseeability need not be proven -- essentially makes the landlord an insurer against crime
	•	MUST show that there was criminal act of a similar type previously to establish foreseeability.
	▼	Crimes in the general area is enough to establish foreseeability
	•	But crimes in a hospital emergency room are not enough to establish foreseeability of crimes in a different hospital's parking lot.
	▼	What is necessary to do?
	•	Basically cheap solutions are mandatory.
	•	But anything more depends on the circumstances
	•	The landlord is of course liable for their own acts.
	▼	Generally you are liable for injuris that could have reasonably been prevented
	•	Self locking doors
	•	adequate lighting-
	•	all reasonable steps
▼	Non- Possessory Interests
	▼	Easements
	▼	The right to use a piece of property of another person for a certain purpose and bars the owner from interfearing with your use.
	•	Non- exclusive right to use.
	•	Does not give you a possessory interest.
	•	It may be for parking, or access.
	•	Allows you to use the property, but not to make a monitary profit
	▼	Creation-
	•	The right of way or a right of way
	•	Language "for ever" suggests fee simple
	•	"for railroad use" in the granting clause suggests an easement, but anywhere else, mearly describes the use.
	•	If the payment is the full fair market value, then it looks more like the conveyance of a fee simple
	•	You cannot create an easement over your own property for your own bennifit. There must be two parties. 
	▼	How to create
	▼	A grant
	▼	or by reservation
	•	"I grant you this property, but reserve to myself this easement..."
	•	a signed writing is required by the STOF for an interest in land- an easement is an interest in land
	•	Adverse possession
	▼	Implication
	▼	It must be reasonable necessary
	•	because the court doesn't want to go any father than reasonably necessary to create an easement by implication.
	•	The court would be taking property rights- they don't like to do that.
	▼	Prescription
	•	no perscriptive negative easements
	•	If you have a view long enough, that doen't give you and easement to the view
	▼	If you try to create an easement orally-you end up with something else
	•	Like a license maybe-
	▼	An irrevocable license is the same thing as an easement
	•	Irrevocable- it is personal, and an interest in land.
	•	Easement by esstopple - same thing
	▼	Types easements
	▼	Affirmative Easement
	▼	Gives a person the right to perform a certain use on another's property
	•	Most are like this
	•	Right to drive across another's land.
	•	More readily implied at common law- its easy to discover
	▼	Negative Easement
	▼	Prohibit someone from doing something on their own property
	•	You may not develop on your property
	•	Not easily discovered- how do you tell if someone is prohibited from doing something? By looking at it?
	•	Becoming more popular as conservation easements
	▼	Pertinent Easement
	▼	Dominant Tenantment
	•	Land that owns the right to use onthers land
	▼	Servient Tennament
	•	The land that is used by another
	•	A person has a right to use it, but the right is not dependant on the ownership of any particular piece of land.
	•	Pertinent Easement has both of these parts
	▼	Easement by neccessity
	•	for a landlocked piece of property
	•	courts will automatcally imply an easement across the other's property
	•	Other requirements fall by the wayside when there is true neccessity.
	▼	Easements in gross
	▼	Common law
	•	Purely personal
	•	cannot be conveyed
	•	not capable of being inheritaed.
	▼	Modern
	•	Now cappable of being transfered 
	•	No land involved
	▼	Personal-  non-transferable
	•	Cannot be conveyed- the same as the easement in gross at common law.
	▼	Covenants
	•	A person seeking to enforce a covenant must be benefited by the action in some way
	▼	requirements
	▼	A writting signed by the promisor
	•	A covenant is an interest in land.
	▼	But deeds are only signed by the grantor
	•	Courts get around this by saying that accepting the deed gets around the signiture requirement
	•	Coveneants cannot be created by perscription, esttople, or implication.
	▼	They must "touch and concern the land"
	•	This has been one of the most confusing aspects of covenants
	•	Club memberships are a difficult point.
	▼	Intent of the parites
	•	most likly the grantor- did they intend it to be personal- or did they intend it to run with the land.
	▼	Equitable Servitudes - WHAT THE HELL ARE THEY
	•	negative
	•	property interest
	•	in equity
	•	Only purchasers are protected from unknown interests.
	•	Only requirement is that you know about it.
	•	no prescription
	▼	Still have to have
	•	intent
	•	Touch and concern
	•	and privity
	▼	To run
	•	No writting required
	•	intent
	•	touch and concern
	•	no privity
	•	notice
	▼	Established because english judges didn't want to create additional easements
	•	Also, in england- negative easements could arise by perscription- eg doctirine of ancient lights.
	•	This is why they put a halt to creating of more easeemnts- neg easements restrict property rights w/o consent.
	•	Contract law per se doesn't give you an adequate response to land transactions
	▼	One exception to the rule that contracts could be enforcable only by the parties to the contracts in ol England AT LAW
	•	Where the parties were in privity of estate- it could be enforced by and against assinees
	•	This was for use in landlord tenant
	•	English courts did NOT extend this to covenants
	•	Even today promises between landowners are not enforceable between assignees of land
	▼	AMerican courts concluded that privity of estate  was a different sort of thing
	•	There must be a close relationship between the two parties
	•	Covenants ARE enforcible at law in America
	▼	If the question is between the origonal land owners
	•	Then its just a contract issue if there is a breach.
	▼	But there is a problem when the land is transfered to new owners
	•	There is no longer a privity of contract.
	▼	To enforce a promise as an equitable servitude or covenant
	•	YOu must show that the benifit and burden of the promise runs with the land.
	•	The test for the running of the burdeon is more oenerous than the test for the beifit.
	▼	Vertical Privity
	•	Privity of estate between on of the parties to the origonal promise and their successors.
	•	Required for a covenant to run at law
	▼	Burdeon of the convenant runs with an estate in land.
	•	DOES NOT run with "the land"
	•	So an adverse possessor does not have the burdeon of the covenant
	•	New Rest gets rid of the vertical privity aspect also
	▼	Horizontal Privity
	•	Shown when the promise is made IN CONJUNCTION with a transfer of an estate in land.
	▼	1st rest required horizontal privity for the burdeon, but not for the benifit.
	•	All the comentators disagreed with this position
	▼	It worked in the context of a subdivision
	•	Because there always was horizontal privity, even though it wasn't required
	•	But it failed to work in the context of adjacent landowners.
	▼	How do you show horizontal privity when the people already own their land?
	•	You use a straw man convey land back to the owners, but this time with covenants attached.
	•	This is why the new rest. doesn't require horizontal privity
	▼	Implied Covenants
	•	If a declaration establishing a common plan for ownership and declairing the restrictions on the property is recorded before the execution of the contract for sale of a parcel, and it states that it binds all purchasers subsequent purchasers will be deemed to have constructive notice of the covenants
	▼	How to you justify an implied covenant:
	•	A writting
	•	constructive notice
	•	says that it must bind every parcel
	•	common plan
	•	describes the property
	•	thus when you receive the deed- you imply the intent to be bound.
	▼	There is a implied reciprocal covenant
	•	You can't grant a bunch of plots with residential only-covenants and then build a shoppign center on the land that you continue to hold
	•	When a subdivider conveys property with a common plan subject to covanants they are impliedly subjecting the property that they continue to hold to the same or similar covenants
	▼	Covenants cannot be created by prescription
	•	If you don't built higher than one story, it doesn't mean that you can never do that
	•	The covant must be based on a writting.
	▼	Injunction against another property owner
	•	You can sell the injunction for money- you can set the price instead of the jury
	•	Injunction is the prefeered remidy
	▼	Changes
	▼	Easements
	▼	By grant
	▼	You cannot use an easement for the benifit of any parcel other than the dominant estate
	•	If you own A and B, and there is an easement over C for B- you can't use the easement for C-only B
	•	Even if you own both properties, and the type and amount of use would not increase.
	•	It is not a question of whether the servient estate would be harmed.
	▼	The scope of the easement is fixed by the grant
	•	Reasonableness has no place in the interpretation of a grant easement of an unpermitted use.
	•	Even if you have to remodel the building to prevent the third estate from benifiting from the easement- can't get ANY benifit from the easemnt
	•	HOWEVER- if the grant is indefinite the location of the easement may be shown by the first location and use of the easement, or it may be subsequently fixed by an implied agreement arising out of the use of a particular way for a long time by the benifited party and acquiescence in that use on the part of the burdened party.
	•	Dimensions depend on the intent of the parties- shown by actual use
	▼	An easement granted or reserved in general terms, without any limitations as to its use, is one of unlimited reasonsable use.
	•	Here - we are talking about a PERMITTED use. See above.
	▼	What is reasonable?
	•	uses made by the dominant and servient estatates may be adjusted consistent with the normal developement of their respective lands.
	•	Easements act reciprocally- the servient estate must not unreasonably interfeat with the dominate estate, and vice versa
	▼	An easement, once located, cannot be moved unilaterally. - you can move it if you get the permission of the dominant estate.
	•	Dominate rule in the US
	▼	But this is changed in the new restatement
	•	They say that the servient estate CAN unilaterally change the location of the easement, reasonably, in order to allow for the reasonably developement of the servient estate.
	•	Cant significantly reduce the untility of the servitude
	•	cant increase the burdens on the dominant estate
	•	bear the burden of the expence
	▼	Why the old rule? It gives the dominant estate unreasonable control over the development of the servant estate.
	•	the old rule is probably on the way out.
	▼	the servient estate cannot grant easements to other people 
	•	But the dominante estate CAN- as long as the new easements do not unreasonably restrict the servient owners access.
	▼	Covenants
	▼	Enforcement- how much can you expand the easement
	•	The extent of the changes to the covenants that you can make is found in the origonal grant.
	•	Some courts say that the power to change is limited to modifying the origonal convenants, and not creating new ones.
	▼	Can you after the fact create a homeowners association
	▼	2 views
	▼	It doesn't make much sense to have restrictive covenants if there is no mechanism for the enforcement of them
	•	If there is no homeowners association- the individual owners will have to bear the cost of filling suit to enforce the covenants
	▼	You have the right to have the covenants enforced as written- can't add the homeowners association after the fact
	•	This view is on the way out
	•	If the hoemonwners associtation is created in the grant- the abbility to require dues from the homeowners is implied in the existance of the association.
	▼	Use of aestetic covenants
	▼	The courts generally will NOT pass judgement on what does or does not comply with an aestetic standard.
	▼	The are not per se unenforible
	•	Minority view says that they are not enforcible as being overly vague
	•	How does an individual owner know what they can or can't do- how do you enforce a standard.
	▼	There must be something to judge the actions of those enforcing the covenant against
	•	They have to act reasonably.
	▼	Variations between one house and another are ok- AS LONG AS THE PEOPLE DECIDING ACT REASONABLY AND THERE IS EVIDENCE THAT THEY DID
	•	All the courts will de is review the committies decission making process.
	▼	When there is inconsistancies between the public zoning and cc&r's
	•	The cc&r's rule- you run into taking's clause violations when the zoning laws do one thing and the covennats do another
	▼	Covenants can oppress free speach
	•	Covenant - No signs may be used anywhere- does not violate free speech.
	▼	Terminination
	▼	Can be explicit
	•	"covenant to last 4 years"
	▼	Or implied
	▼	"right to pass through a building"
	•	lasts as long as the building is there
	▼	Passage of the zoning ordinance does not automatically terminate the covenant
	•	You'll be causght between a rick and a hard place.
	•	Easeements are normally perpetual- just like fee simple
	▼	Restrictions that are not enforced
	•	Become unenforcible after a period of time.
	•	When there is no compliance with covenant- the covenant becomes "abandoned"
	•	Although technically speaking you can't apandon a property interest
	•	You can get out of the covenant when it has never been substantially followed
	▼	Covenants are severable
	•	Just becasue other covenants are being violated doesn't  mean all other covenants are void
	▼	Defences
	•	merger, release, unclean hands, acquiescence, abandonment, laches, estopple, and changed neighborhood conditions
	•	These are the same as all equitable defences.
	▼	Changed neighbeorhood
	•	If a neighborhood was intended to be residential, and it is now commrecial- residential only restrictions would become unenforcible.
	▼	It is not the changer of the sourrounding area that is important, but change within the effected area
	•	Just because there is a business across the street doesn't mean the charachter has changed.
	•	Only if the businesses are located in the same subdivision as you could you make the arguement.
	▼	Forfeiture
	▼	Rarely appropriate
	•	If there is abuse of the easement- you get an injunction- not forfeiture of the easement.
	•	Courts are not going to terminate a property interest lightly
	▼	If there is no way to enforce the easeemnt to its propper scope then forfeiture may be appropriate
	•	only if the easement has been rendered essentially impossible.
	•	like through physical change
	•	if you refuse to confine your use of the easement to its proper scope then termination may be appropriate.
	▼	Related interests.
	▼	Common Law View
	•	If you own land you own from heaven to hell.
	▼	Interfierance with your property
	•	Gov flying planes low over your property may qualify as a taking if it "substantially interfears" with your enjoyment of the property.
	•	The flights must be directly over your property.
	▼	Space above a persons land is the same as the land itself
	•	you can sue for ejectment of your airspace.
	▼	Lateral suppoert
	•	the right to lateral support is like strict liability in tort
	▼	but is limited to the land, and not to the building
	•	IF the building is causing the sliding by its additional weight on the land, then you would not be liable for failure to provide lateral support.
	•	BUT if the land would slide anyway because of your actions, and the building is damaged in the process, then the court evaluate whether you acted with ordinary care and skill in excivating your property and make reasonable precaustions to keep the land from sliding.
	•	Subsequent purchasers of land are not liable for the negligent removal of lateral support caused by the previous owner.
	▼	Subjacent support
	▼	Rule is strict liabiltiy- same as lateral support.
	•	If you mine your coal and cause sink holes on my land, then you are strictly liable.
	▼	English rule
	•	If the pumping of undergournd water causues damage to anothers land- tough for them
	▼	AMerican rule
	•	as long as you are acting reasonably in the pumping of the water you are ok.
▼	Water Law
	•	No one owns flowing water
	•	What we are dealing with is a right to use the water.
	▼	Stream Waters- Natural water course
	•	Water flowing in a fixed chanel so as to constitute a watercourse, or water collected in an identifiable body, such as a river or lake.
	▼	You have an absolute right to gather surface waters and dicharge them into a nautural waterway
	•	If this damages 
	▼	Surface water
	•	Water diffused over the surface of the land or contained in depressions therein and resulting from rail snow or which rises to the surface in springs is all surface water
	•	You can change the flow of surface waters as long as its not arbitrary or unreasonable
	▼	Riparian Owners
	•	Domestic purposes ok
	•	agricultural purposes ok
	▼	When an upper ripparian owner who discharges water into a stream causes the stream to change its flow and couse what set of rules apply? Lockland
	•	Was it reasonable? The
	▼	You have to use the riparian rights within the riparian watershed
	•	You can't take your water and ship it out of the water shed.
	▼	The first person to put water to use gains a right over all other who come afterward
	•	Used often in the west.
	▼	Common Enemy Doctrine- Common Law Rule
	•	If you're the downhill owner, you can interfear with the flow of it and divert it onto the land of another
	•	You have an absolute right to exclude surface water
	▼	Civil Law Rule
	•	Owner of the higher land has an easement over the lower land
	•	They have a right to have the water flow onto the land of those downhill
	▼	It must flow naturally
	•	You can't use artificial means to gather the water and force it to flow in a certain manner.
	•	A naturally occuring pertinitne estate
	▼	Natural flow doctrine
	•	Every land owner has the right to demand that water flow across his land maintained in its natural state, not sensibly diminished in quantity or impaired in quality
	•	No need to show harm as a lower landowner from the upper land owners excessive use
	▼	Reasonable use
	•	Upper landowners can use as much as they want, as long as the use is reasonable, and the use of those lower is not reasonably interfeared with
	•	Must show harm from the upper owners use
	•	Domestic use is nearly always per se reasonable.
	▼	What is reasonable?
	•	Overall public purpose being served
	•	degree to which the loss is offset by gain
	•	availability and feasibility of alternatives
	•	severity of damage in relation to their riskbearing capabilities
	•	the extent to which damage of the kind the P sustained is generally considered a normal risk of landownership
	•	degree to which similar damage is distributed at large over other benificiaries
	▼	Water as property boundries
	•	The general rule- with creeks and other things that have thickness- is that your property goes to the middle of the street.
	▼	Tidal Land
	•	Owner takes to the high water mark
	▼	Navagable waterway
	•	owner takes to the low water point of the creek
	▼	What is navagable water?
	▼	Is it capable of commercial use?
	•	Yes? then its navagable
	▼	General Rule - neither navagable nor tidewater
	•	You own out to the middle.
	▼	Accretion
	•	Gradual deposit of sediment on a bank that shifts the flow of water, resulting in land that didn't use to be there
	•	Boundry lines DO changes
	•	What about a navagble waterway, where the state owns the river bend
	▼	If the accretion is artificial the state owns the new land, if its natural the bank landowner owns
	•	If the shifting is caused by human activity CLOSE to the location of the shift, then that is artificial
	▼	Avulsion
	•	Sudden changes in river banks
	•	DO not change boundry lines
	•	the boundry lines are the old river bank
▼	Nuisance
	▼	The intersection of property and tort
	▼	ellements
	•	intentional
	•	non-tresspassory
	•	unreasonable
	•	substantial
	•	interfearance with the use and enjoyment of land.
	▼	Is the harm caused to the P balanced by the large benifit the D
	•	It's a balancing test.
	▼	Can you enjoing someone from being a nuesance?
	•	not if it has a lot of social utility
	▼	BUT you can still get money damages for the nusance.
	•	Rest. says damages are appropriate only if they do not cause the business to close
	▼	a result that is very one-sided is unlikely to be upheld
	•	The results under the first restatement were very one-sided, 
	▼	Nuisance can be thought of as an extension of social utility
	•	It forces people to take into account of ALL external costs
	•	Allows for a variety of varitety
	▼	What is unreasonable
	•	The use and enjoyment of the property by a person with reasonable sensibilities.
	▼	What happens when the neighbors move to the neusance.
	•	it used to be an absolute bar to recovery
	•	now it is just a factor to be considered in the analysis
	•	
	▼	Can a fence be a nuisance?
	•	The english doctrine of ancient lights makes the moveemnt of light and air a right over which you can have an easement.
	▼	But the americans have said no- there is no property right to light and air movement
	▼	so there is no remidy.
	•	go talk to the legislature.
	▼	Spit fence
	▼	a fence errected out of mailce
	•	you MUST prove malace
	•	Because there is no right not to have a fence on anothers land, or trees ect.
	▼	Coase theorm.
	•	the transaction costs are the problem with nuisance.
	▼	when you get too many people involved, the transaction costs become prohibitivly expensive, its time for goverment interfearnace
	•	But the government is very inefficient.
▼	Final Exam
	•	Mostly essay
	•	Maybe some multiple choice on estates in land an future interests.
	•	Closed Book
	•	Vail is interested in what the state of the law is NOW