REAL PROPERTY REAL PROPERTY I.
I. FREEHFREEHOLD OLD ESTATESTATESES A.
A. PrPresenesent Pot Possessessossory Ery Estastatestes E
Essttaattee LLaanngguuaagge e ttoo Create Create
D
Duurraattiioonn TTrraannssffeerraabbiilliittyy FFuuttuurre e IInntteerreesstt NNootteess Fee si!le
Fee si!le absolute absolute
“To
“To A and his A and his heirs”heirs” “To A” “To A” Absolute Absolute ownership, of ownership, of potentially infinite potentially infinite duration. duration. Devisable Devisable (transferable by (transferable by will),
will), descendibiledescendibile
(transferable by (transferable by statutes of intestacy statutes of intestacy if its holder dies if its holder dies w/out a will), w/out a will), alienable alienable (transferable during (transferable during life). life). None. None. A’
A’s heirs gets heirs get NT!"N#. NT!"N#.
Fee tail
Fee tail “To A and the heirs“To A and the heirs
of his body.”
of his body.”
$asts only as
$asts only as
long a there are
long a there are
lineal blood lineal blood descendants of descendants of grantee. grantee. %asses %asses auto&atically to auto&atically to grantee’s lineal grantee’s lineal descendants. descendants. 'eersion (if 'eersion (if held by grantor) held by grantor) 'e&ainder (if 'e&ainder (if held by third held by third party). party). Fee si!le Fee si!le "eterinable "eterinable “To
“To A so long A so long as*”as*” “To A until*”
“To A until*” “To A while*” “To A while*” #rantor &ust use #rantor &ust use
clear durational clear durational language language.. %otentially %otentially infinite, so long infinite, so long as eent does as eent does not occur. not occur. Alienable, Alienable, deisable, deisable, descendible, descendible, subject to subject to condition condition.. %ossibility of %ossibility of reerter (held by reerter (held by grantor). grantor). +..-.%..'. +..-.%..'. 'ules re 'ules re -efeasible -efeasible +ees +ees 0ords of 0ords of &ere &ere desire, desire, hope, or hope, or intention intention are are insufficient insufficient to create a to create a defeasible defeasible fee. fee. Absolute Absolute restraints restraints on on alienation alienation are 1"-. are 1"-. Fee si!le Fee si!le sub#e$t to sub#e$t to $on"ition $on"ition subse%uent subse%uent
“To A, but if 2 eent “To A, but if 2 eent happens, grantor happens, grantor reseres right to reseres right to reenter and reenter and reta3e.” reta3e.” “To A “To A, up, uponon condition that” condition that” “To
“To A, proideA, proidedd that”
that”
“To A, but if” “To A, but if” #rantor &ust #rantor &ust e4pressly resere e4pressly resere right or reentry. right or reentry. %otentially %otentially infinite, so long infinite, so long as the condition as the condition is not breached, is not breached, and thereafter, and thereafter, until the holder of until the holder of the right of entry the right of entry ti&ely e4ercises ti&ely e4ercises the power of the power of ter&ination. ter&ination. Alienable, Alienable, deisable, deisable, descendible, descendible, subject to subject to condition condition.. 'ight if 'ight if entry/power of entry/power of ter&ination ter&ination (held by (held by grantor). grantor). “"t’s &y “"t’s &y prerogatie” 5 prerogatie” 5 6obbie 6rown 6obbie 6rown Fee si!le Fee si!le sub#e$t to sub#e$t to e&e$utory e&e$utory liitation liitation
“To A, but if 2 eent “To A, but if 2 eent occurs, then to 6.” occurs, then to 6.” %otentially %otentially infinite, so long infinite, so long as stated as stated contingency contingency does not occur. does not occur.
Alienable, Alienable, deisable, deisable, descendible, descendible, subject to subject to condition condition.. 74ecutory 74ecutory "nterest (held by "nterest (held by third party) third party) (shifting or (shifting or springing) springing) Life estate
Life estate “To A “To A for liffor life.”e.” “To A for the life of “To A for the life of 6.” 6.” 8easured by life 8easured by life of transferee or of transferee or by so&e other by so&e other life (pur autre life (pur autre ie).
ie).
Alienable, dei Alienable, deisablesable
and descendible if and descendible if pur autre ie and pur autre ie and &easuring life is still &easuring life is still alie. alie. 'eersion (if 'eersion (if held by grantor) held by grantor) 'e&ainder (if 'e&ainder (if held by third held by third party). party). 9an’t 9an’t 0'"T7 0'"T7::onon the walls. the walls. 1 1 No
No ''aste &ust &a3e reasonableaste &ust &a3e reasonable r r epairs &ust payepairs &ust pay iinterest charges on the &ortgage &ust pay nterest charges on the &ortgage &ust pay propertyproperty tta4esa4es
: :
(. Future Interests a. In )rantor
i. Reversion created when grantor grants estate of shorter ter& than his own :. to A for life ( has reersion)
ii. Possibility of reverter future interest held by a transferor of a fee si&ple deter&inable :. to A so long as 2 ( has possibility of reerter)
iii. Right of Entry/ power of termination created when grantor grants estate by a fee si&ple sub;ect to a condition subse<uent.
:. to A but if li<uor sered, has right of entry (option to e4ercise right) b. In )rantee
i. Remainder future interest that has the possibility of beco&ing possessory at e4piration of prior estate and cannot diest that estate. 9annot follow a fee si&ple of any 3ind
:. Contingent Reain"er created in an unascertained person ' sub;ect to a condition precedent, or both. 74press condition attached to the re&ainder, which &ust be satisfied before possession “to A if A reaches age =>.” ' “to A for life, then to A’s children” (where the condition is the birth of a child).
. *este" Reain"er created in an ascertained person, and possession sub;ect to no other condition precedent
a. "ndefeasibly ested holder is certain to ac<uire a possessory estate at so&e ti&e in the future, and 3eep it per&anently. to A for life, then to 6.
b. 1ested re&ainder sub;ect to open 'e&ainder ested in a class of persons, at least one of who& is <ualified to ta3e possession, but &ore people can beco&e &e&bers of the class.
c. 1ested re&ainder sub;ect to defeasance re&ainder that will be
eli&inated if a condition subse<uent occurs. ?to A for life, and then to 6, but if 6 eer sells li<uor on the land, then to 9.?
ii. Executory Interest +uture interest in a grantee, which &ust shift or spring to beco&e possessory.
:. S+ifting "nterest shifts in case of contingent eent. 9uts short the prior estate (li&its a fee si&ple held by a preious grantee)
a. to A for life, but if A drin3s li<uor, then to 6
. S!ringing "nterest springs out in the future (li&its a fee si&ple in the grantor) a. to A for life, then to 6 if 6 graduates fro& law school
b. to A and his heirs if and when A &arries a good 9hristian wo&an. iii. Transferability 1ested re&ainders are fully transferable, descendible, and deisable.
9ontingent re&ainders and e4ecutory interests are fully transferable, descendible, and deisable, proided surial is not a condition to the interest’s ta3ing.
i. lass !ifts
:. T+e Rule of Con,enien$e absent e4press contrary intent, a class closes (i.e. no one born after that ti&e &ay share in the gift) when so&e &e&ber of the class can call for distribution of her share of the class gift.
. Sur,i,ors+i! of a class &e&ber to the ti&e of closing is usually unnecessary unless surial was &ade an e4press condition.
c. Attributes i. "aste ii. #ixtures d. *ali"ity
i. Destruction of ontingent Remainders 9ontingent re&ainders are destroyed if not ested at ti&e of ter&ination of preceding estate.
:. “To A for life, re&ainder to A’s children who reach :” @ if A has no children who are at least : at ti&e of her death, property reerts to the grantor.
. Abolished in &ost ;urisdictions @ property reerts to grantor A’s children hae springing e4ecutory interest.
ii. Rule in $helley%s ase a re&ainder in a life tenantgrantee’s heirs is dee&ed to be in a life tenant herself.
:. “To 6 for life, then to 6’s heirs.” @ 6 has a fee si&ple.
. Abolished in &ost ;urisdictions @ 6’s heirs hae a contingent re&ainder.
iii. Doctrine of "orthier Title A re&ainder in the grantor’s heirs is ineffectie, so grantor has a reersion.
:. “To 6 for life, then to &y heirs at law.” @ 6 has a life estate the grantor has a reersion
. #enerally treated as a rule of construction only @ grantor’s heirs hae a contingent re&ainder.
i. Restraints on &lienation 'transfer( 9ertain conditions placed in the transferability of land will be oid for public policy.
:. ) types of restrictions
a. Disabling 9an’t state that any transfers of land are no force or effect. b. #orfeiture 9an’t state the grantee f orfeits the land if there’s a transfer. c. Promissory 9an’t hae a coenant forbidding alienation.
*+ Effect of Rule
a. "f fee si&ple coneyed @ all restrictions are unenforceable
b. "f life estate coneyed @ disabling restraints will not be enforced. 6ut others &ay be enforced.
c. "f leasehold coneyed @ forfeiture and pro&issory restraints are enforceable. -isabling is also li3ely to be enforced by &ost courts. . Restraints on ,arriage
C. Con$urrent O'ners+i!
a. -oint Tenan$y each tenant has the right to possess the entire parcel w/ right of survivorship+
i. Bpon death, coowners interest is i&&ediately transferred to the re&aining ;oint tenants in e<ual shares. 'ight of suriorship→ whicheer tenant lies longest ta3es the
property for herself.
ii. reation “To A and 6 as ;oint tenants with the right of suriorship .” Cunity re<uire&ents (TT"%)
:. Time 5 the interests &ust be ac<uired at the sa&e ti&e
. Title -all ;oint tenants &ust ac<uire title by the sa&e instru&ent
=. Interest -all ;oint tenants &ust hae identical interests in the property (both as to duration and fractional share)
C. Possession -each tenant &ust hae an e<ual right to possess the whole property.
iii. Terination The right of suriorship &ay be seered, and the estate conerted to a tenancy in co&&on by %A8 5 ale, %artition And 8ortgage.
:. Doint tenant can sell or transfer her interest during her lifeti&e @ the
purchaser/transferee beco&es a tenant in co&&on, but the ;oint tenant re&ains in tact as between the other, nontransferring DTs
a. A, 6, 9 are ;oint tenants. 9 transfers interest to - 6 dies A owns /= interest, - owns :/=
. 8ere fact of entering into a E for sale will seere the DT. Bnder the doctrine of
e.uitable conversion the DT is seered on the date of Eing.
=. = ways to partition by oluntary agree&ent, in 3ind (physical diision ia ;udicial action) forced sale (ia ;udicial action).
C. 7ffect of,ortgage
a. 8inority iew title theory of mortgage &ortgage seers the DT as to that encu&bered share
b. 8a;ority iew lien theory of mortgage &ortgage will NT seere the DT
b. Tenan$y in Coon each tenant has the right to possess the entire parcel no &atter how s&all her fractional interest. 6ut, there is N right of suriorship.
i. Bpon death, coowners interest goes to heirs or persons designated in will
ii. +ractional ownership only deter&ines how the purchase price will be diided when the property is sold.
iii. reation “To A and 6” or “To A and 6 as ;oint tenants.” nly unity re<uired is possession.
i. Termination &ay be ter&inated by partition.
c. Tenan$y by t+e Entirety husband and wife each has an undiided interest in the whole estate and right of suriorship.
i. reation “To ! and 0.” 8ost states presu&e a tenancy by the entirety in any ;oint coneyance to husband and wife where the four unities aboe are present.
ii. Termination The right of suriorship &ay be seered by (:) diorce, () &utual agree&ent, or (=) e4ecution by a ;oint creditor. Tenancy 9ANNT be ter&inated by inoluntary partition.
d. Rig+ts an" Duties of Co/Tenants
i. Possession each cotenant has right to possess all portions of the property, but has no right to e4clusie possession of any party.
ii. Rents Profits a cotenant in possession has the right to retain profits fro& her own use of the property. 6ut, she &ust share net rents fro& =rd
parties and net profits fro& e4plaining the land (i.e. &ining).
iii. Encumbrance Doint tenant &ay encu&ber (by &ortgage or ;udg&ent lien) her interest, but &ay not encu&ber the interests of other cotenants.
i. Partition 9otenant has a right to ;udicial partition, either by physical diision a&ong cotenants, or by sale and diision of proceeds.
. Expenses All cotenants &ust contribute to necessary repairs. There is no right of contribution for the cost of improvements. All contribute to taxes or mortgage payment paid on the entire property. 6ut, rei&burse&ent to a cotenant is sole
possession is li&ited to the e4tent the e4penditures e4ceeds the rental alue of her use. II. LANDLORD AND TENANT
A. Lease+ol" or Nonfree+ol" Estates
a. Tenancy for 0ears (a3a 7state for Fears or Ter& of Fears)
i. A lease for afixed determined period of time (e.g. fro& :/:/>= 5 G/:/>=). -oes not hae to be a period of years. Enown ter&ination date fro& start.
ii. 1o notice needed to ter&inate the tenancy it ends at the specified date.
iii. A ter& of years greater than one year &ust be in writing to be enforceable (statute of frauds)
b+ Periodic Tenancy
i. A lease whichcontinues for successive of continuous intervals. ii. reation
:. 8ay be created e4pressly “to T fro& &onth to &onth” . r byimplication
a. $and is leased w/no mention of duration, but proision is &ade for the payment of rent at set intervals.
b. An oral ter& of years inviolation of the statute of frauds creates an i&plied periodic tenancy, &easured by the way rent is tendered.
c. 2oldover in residential lease, if $ elects to holdoer T who wrongfully stayed on past the conclusion of the original lease, and i&plied periodic tenancy arises &easured by the way rent is tendered.
iii. Termination 8ust proide 13TIE
:. Bsually inwriting
. Notice &ust be at leaste.ual to the length of the period itself unless otherwise agreed.
a. 8onthto&onth periodic tenancy @ : &onths notice re<uired b. 6ut yeartoyear periodic tenancy @ only H &onths notice re<uired =. %arties &ay lengthen or shorten notice proisions by priate agree&ent.
C. %eriodic tenancy &ust end at theconclusion of a natural lease period (e.g. if lease started on :/:, and T gies notice on I/:I, lease doesn’t end until H/=>).
c+ Tenancy at "ill
i. A lese forno fixed duration 5 “To T for as long as $ or T desires”
ii. Needexpressly agree to a tenancy at will, otherwise the pay&ent of regular rent will cause a court to treat the tenancy as an i&plied periodic tenancy.
iii. ,ay terminate by either party at any time. !oweer, a reasonable de&and to acate is typically re<uired.
d+ Tenancy at $ufferance
i. 0hen T haswrongfully held overpast the e4piration of the lease. C
ii. Allows $ torecover rent
iii. $asts only until (:) $evicts T or () elects to hold T to a new tenancy . (. Tenant0s Duties
a+ T%s 4iability to Third Parties
i. T is responsible for 3eeping the pre&ises inreasonably good repair .
ii. T is liable for in;uries sustained by =rd parties T inited, een where $ has e4pressly pro&ised to &a3e all repairs.
iii. 0hen initees sue T @ T always looses.
b+ T%s Duty to Repair
i. 0here the lease issilent
:. T &ustmaintain the pre&ises and &a3eordinary repairs
. T &ust not co&&itwaste (oluntary, per&issie, or a&elioratie)
=. #ixtures (once &oable chattel that, by irtue of its anne4ation to realty, ob;ectiely shows the intent to per&anently i&proe the realty).
a. T &ust NT re&oe fi4tures, een if she installed the&. +"2TB'7 %A 0"T! 0N7'!"% + T!7 $AN-.
b. 0here it is unclear that a chattel is a fi4ture, T &ay re&oe chattel that she installed as long as re&oaldoes not cause substantial harm to the premises.
ii. "f the lease expressly proed that T has a duty to &aintain the property in good condition for the duration of the lease.
:. At 9$, T was responsible for any loss to the property, including loss attributable to force of nature (earth<ua3e, hurricane).
. Today, T &ay ter&inate the lease if the pre&ises are destroyed w/out her fault.
c+ T%s Duty to Pay Rent
i. T has duty to pay rent
ii. "f T breaches this duty, and re&ains in possession of the pre&ises the landlord’s only options are to (:) eict through the courts or () continue the relationship and sue for da&ages. $AN-$'- 8BT NT 7N#A#7 "N 7$+ !7$% (changing the loc3s, forcibly re&oing the tenant). elfhelp is punishable both ciilly and cri&inally. iii. "f T breaches duty, but leaes the pre&ises, landlord &ay "'
:. urrender 5 treat the T’s abandon&ent as an i&plic offer of surrender which $ accepts. 6ut, if the une4pired ter& is greater than : year, surrender &ust be in writing to satisfy the statute of frauds.
. "gnore the abandon&ent and hold the T responsible for the unpaid rent, ;ust as if T were still there. nly aailable in a &inority of states.
=. 'elet the pre&ises on the wrongdoer tenant’s behalf and hold hi& liable for any deficiencies. 8a;ority rule $ &ust at least try to relet.
C. Lan"lor"0s Duties
a+ Duty to Deliver Possession
i. English Rule ',ajority(: $ &ust put T in actual physical possession of the pre&ises. Thus, if at the start of T’s lease a prior holderoer T is still in possession, $ is in breach and the new T gets da&ages.
ii. &merican Rule ',inority( $ has not duty to put T in actual physical possession. "nstead $ need only proide T withlegal possession.
b. Implied ovenant of 5uiet Enjoyment
i. Applies to bothresidential andcommercial leases.
ii. T has a right to <uiet use and en;oy&ent of the pre&ises w/out interference fro& $. iii. 6reached byactual eviction when $ wrongfully eicts T or e4cludes T fro& the
pre&ises.
i. 6reached byconstructive eviction when$I1!
:. $ubstantial interference attributable to $’s actions or failure to act (chronic proble&)
. 1otice T &ust gie $ notice of proble& a nd $ &ust fail to respond &eaningfully.
=. !et 3ut T &ust acate w/in a reasonable ti&e after $ fails to fi4 the proble&.
c+ Implied "arranty of 2abitability
i. Applies only toresidential leases. "t isnon6waivable.
ii. tandard pre&ises &ust befit for basic human habitation. 6ear liing re<uire&ents. 8ay loo3 to local housing code or independent ;udicial conclusion.
iii. 0hen breached T &ay,R7 8oe, 'epair, 'educe, or 'e&ain :. ,ove out and ter&inate the lease
. Repair and deduct cost fro& future rent.
=. Reduce rent or withhold all rent until the court deter&ines fair rental rate. Typically T &ust palce withheld rent in escrow account to show good faith. C. 'e&ain in possession, pay rent affir&atiely andsee8 money damages. d. Retaliatory Eviction if T lawfully reports $ for housing code iolations, $ is barred fro&
penaliJing T, by, for e4a&ple, raising rent, ending the lease, harassing T D. Assignent ,. Sublease
a. Absent so&e prohibition in the lease, a T &ay freely transfer his or her interest in whole (by assign&ent) or in part (by sublease).
b. &ssignment T: transfers to T the re&aining :> &onths on a year ter& of years.
i. 4 and T* Are in privity of estate liable to each other for all of the coenant in the original lease that run with the land. 6ut, they are NT in priity of contract unless T e4pressly assu&ed all pro&ises in the o riginal lease.
ii. 4 and T9 Are no longer in priity of estate. 6ut, they re&ain in privity of : , so $ and T: are secondarily liable to each other.
c. $ublease $ and sublessee are in neither priity of estate nor priity of E. There share no ne4us. T is responsible to T: and iceersa.
E. Lan"lor"0s Tort Liability
a. aveat lessee (9$) let the tenant be ware. $ is under no duty to &a3e the pre&ises safe. b. Exceptions to the co&&on law4&P$
i. ommon areas $ &ust &aintain all co&&on areas
ii. 4atent defect $ &ust warn T of hidden defects of which $ has 3nowledge or reason to 3now. -uty to warn, NT duty to repair.
iii. &ssumption of repairs $ who oluntarily assu&es repairs &yst co&plete the& with reasonable care.
i. Public use rule $ who leases public spaces (such as a conention hall) and who should 3now, because of the nature of the defect and the length of the lease, that T will not repair, is liable for defects on the pre&ises.
. $hort term lease of furnished dwelling $ is liable for any defect which har&s T. III. Ser,itu"es
A. Easeents
a. Affirati,e Easeents The grant of a nonposessory property interest that entitles its holder to go onto and do soðing on another’s land, called the serient tene&ent.
i. 7.g. the priilege to lay utility lines on another’s land the right of access across a tract of land.
ii. 9reated byPI1!
:. Prescription 5 aderse possession 5 re&e&ber3&2
a. 9ontinuous use for the gien statutory period b. pen and notorious use
c. Actual use
d. !ostile use (w/out the serient owners consent).
. Implication 5 if preious use was apparent, and the parties e4pected the use would surie diision because it the ease&ent is reasonably necessary to the do&inant land’s use and en;oy&ent.
=. 1ecessity 5 landloc3ed setting 5 where grantor coneys a portion of his land with no way out, e4cept oer so&e part of the grantor’s re&aining land. C. !rant 5 if &ore than : year, &ust be in writing
b. Negati,e Easeents The grant of a nonpossessory property interest that entitles its holder to preent the serient landowner fro& doing soðing that would otherwise be per&issiable.
i. Only 1 $ategories 2 $A 5 light, air, support, or strea& of water fro& an artificial flow (a &inority of states, including 9alifornia, also allow negatie ease&ents for scenic iews).
ii. Can only be $reate" e&!ressly3 by 'riting signe" by t+e grator. There is no natural or auto&atic right to a negatie ease&ent.
c. An ease&ent is eitherappurtenant to land or held in gross
i. &ppurtenant when it benefits the holder in his physical use or en;oy&ent of property. :. It ta8es * to &a3e an ease&ent appurtenant.
. "t passes automatically with the do&inant tene&ent, regardless of whether it is een &ention in the coneyance and with the serient estate (unless the new owner is a bona fide purchaser without notice of the ease&ent).
ii. In !ross confers upon its holder only so&e personal or pecuniary adantage that is not related to his or her use of en;oy&ent of his land.
:. 7.g. the right to place a billboard on another’s land the right to swi& or fish in another’s pond the utility co&pany’s right to lay power lines across the land . nly : parcel inoled.
=. Not transferable unless it is for co&&ercial purposes. ". Terination of an Easeent 2 END CRA4P
i. Estoppel 5 "f serient owner &aterially changes her position in reasonable reliance on the ease&ent holder’s assurance that the ease&ent will no longer be enforced 5 the ease&ent holder is estopped fro& enforcing the ease&ent.
ii. 1ecessity if created by necessity, it e4pires as soon as the necessity ends (but if created by e4press grant, no auto&atic end)
iii. Destruction of the serient land, other than through the willful conduct of the serient owner will ter&inate the ease&ent.
i. ondemnation of the serient estate by e&inent do&ain will ter&inate the ease&ent . Release (written) gien by the ease&ent holder to the serient owner will ter&inate. i. &bandonment ease&ent holder &ust de&onstrate by physical action the intent to
neer use the ease&ent again.
ii. ,erger doctrine the ease&ent is e4tinguished when title to the ease&ent and title to the serient land beco&e ested in the sa&e person.
iii. Prescription 5 aderse possession 5 interference w/ an ease&ent which is 9A9!. (. T+e Li$ense A &ere priilege to enter another’s land for so&e delineated purpose
a. Not sub;ect to the statue of frauds, so no need for a writing
b. #reely revocable at the will of the licensor, unless estoppel applies to bar reocation. c. The classic license cases
i. Tic8ets (&oie, theatre, sports) @ freely reocable license @ you can get 3ic3ed out of the show at any ti&e
ii. 1eighbors tal8ing by the fence @ create unenforceable oral ease&ent @ freely reocable license
d. Estoppel will apply to bar reocation only when the licensee has inested substantial ; or labor or both in reasonable reliance on the license%s continuation.
C. T+e Profit
a. 7ntitles its holder to enter the serient land and ta3e fro& it the soil or so&e substance of the soil (e.g. &ineral, ti&ber, oil).
b. hares all the rules of ease&ent. D. T+e Co,enants
a. Promise to do or not do soðingrelated to the land . "t is BN$"E7 the ease&ent b/c it is NT the grant of property interest, but rather a contractual li&itation or pro&ise regarding land. b. 9an be negatie (restrictive covenant ) pro&ise not to build for co&&ercial purposes or
affir&atie (affirmative covenant ) pro&ise to paint co&&on fence. c. Distinguish e<uitable seritude based on theremedy
i. "f % see3s; damages @covenant
ii. "f % see3sinjunctive relief @e.uitable servitude. d. <urden will run with the land when"IT21
i. "riting 5 the original pro&ise was in writing
ii. Intent 5 the original parites intended the coenant to run with the land
iii. Touch oncern 5 the pro&ise affect the parties’ legal relations as land owners K
iv+ 2ori=ontal and vertical privity
:. !oriJontal ne4us between the original pro&ising parties, need grantor/grantee landlord/tenant &ortgager/&ortgagee
. 1ertical 5 ne4us between the seller and the purchaser si&ply no hostility . 1otice to the purchase of the burdened parcel
e. <enefit will run with the land if "IT>
i. "riting 5 the original pro&ise was in writing
ii. Intent 5 the original parites intended the coenant to run with the land
iii. Touch oncern 5 the pro&ise affect the parties’ legal relations as land owners i. >ertical Privity 5 so&e nonhostile ne4us
E. E%uitable Ser,itu"es
a. Promise acco&panied byinjunctive relief .
b. 0ill bind successors if"IT1E$ (note no need for priity)
i. "riting 5 generally, but not always, the original pro&ise was in writing ii. Intent 5 parties intended that pro&ise would bind successors
iii. Touch oncern pro&ise effects the partys as land owners i. 1otice 5 successor of burdened land has notice of the pro&ise
. 7 5 e<uitable seritude
c. Implied e.uitable servitude 5 the general or co&&on sche&e doctrine 5 an i&plied e<uitable seridude will hold an unrestricted lot holder to a restrictie coenant if
i. 0hen the sale began, the subdiider had ageneral scheme of residential development which included the purchaser’s lot
ii. The lotholder hadnotice of the pro&ise contained in the prior deeds &IR
:. &ctual notice - had literal 3nowledge of the pro&ise in the prior deed . In.uiry notice the neighborhood confor&s to the co&&on sche&e.
=. Recorded notice public recorded docu&ents (note split re whether this is actually notice. o&e courts say a subse<uent buyer is on record notice of the contents of prior deed transferred to others by a co&&on grantor. The beter iew is that the subse<uent buyer does NT hae record notice of the contents of those prior deed transferred to others by the co&&on grantor.
d. Defense to 7<uitable eritude
i. hanged conditions 5 where the party see3ing release fro& the ter&s of the e<uitable seritude &ust so that changed conditions are so perasie that theentire areas has changed.
F. &dverse Possession %ossession for a statutorily prescribed period of ti&e can, if certain ele&ents are &et, ripen into title.
a. 7le&ents re&e&ber3&2
i. ontinuous 5 uninterrupted for the gien statutory period
ii. 3pen and 1otorious 5 the sort of possession that the usual owner would &a3e under the circu&stances
iii. &ctual 5 the entry can’t be hypothetical. "t can’t be sy&bolic.
i. 2ostile 5 the possessor doesn’t hae the true owners consent to be there. b. Note %ossessor’ssubjective state of mind is irrelevant 5 3nowledge that she was
encroaching on the land doesn’t &atter
c. Tac8ing one aderse possessor &ay tac3 on to his ti&e with the land h is predecessors’ ti&e so long as there is privity which is satisfied by any nonhostile ne4us such as blood, contract, deed, or will. 6ut note,
i. Tac3ing is not allowed when there has been anowster
ii. wster will defeat priitiy therefore, no tac3ing is allowed
d. Disabilities statute of li&itation will not run a gainst a true owner who is afflicted with a disability at the inception of the aderse possession.
i. 9o&&on disabilities include insanity, infancy, i&prison&ent I*. 5oning
a. %ursuant to its police powers, goern&ent &ay enactstatutes to reasonably control land use.
b. The goern&ent &ay grant avariance if, the proponent de&onstrates (:) undue hardship, and () that the ariance won’t wor3 detri&ent to surrounding property alues. Ad&inistratie action, typically a Joning board
c. Thenon6conforming use A once lawful, e4isting use now dee&ed nonconfor&ing by a new Joning ordinance "t cannot be eli&inated all at once, unless ;ust co&pensation is paid.
therwise, it could be dee&ed an unconstitutional ta3ing.
d+ ?nconstitutional exactions
i. Those a&enities that goern&ent see3s in e4change for granting per&ission to build ii. 7g new street lights, a s&all par3, wider roads.
iii. To pass constitutional scrutiny, these e4actions &ust be reasonably related both in
nature and scope to the i&pact of the proposed deelop&ent. "f they are not, these e4actions are unconstitutional.