Real property flowchart PDF

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PROPERTY – Issue OL Term Definition / Elements Cases RIGHT TO EXCLUDE v. RIGHT TO ACCESS RULE OF CAPTURE Prior in Time: First person to take possession of a thing owns it Pierson v. Post 1. Possession Or 2. Pursuit and mortally wounded, capture is practically certain TRESPASS Intentional intrusion on the property possessed by another Elements: 1. Intent a. Voluntary act b. Not knowing not an excuse 2. Intrusion a. Moment of entry Exceptions: 1. Consent 2. Necessity 3. Public Policy Remedy 1. Damages: a. Nominal: Even if no other harm has occurred b. Compensatory: Cost of restoring the property to its previous condition or by the diminution in its market value c. Injunctive: Order requiring someone to get off the property 2. Declaration: statement by the court that someone is trespassing 3. Criminal Uston v. Resorts The more an owner has opened his property to the public, the more RIGHT OF REASONABLE likely it is that the courts will find public rights of access to the ACCESS TO PROPERTY property OPEN TO THE PUBLIC Property owners do not have aright to unreasonably exclude people REASONABLENESS from their property. STANDARD Majority Rule: Rule is limited to common carriers (Airlines, inns) Minority Rule: Property owners must have a legitimate business interest for excluding Uston v. Resorts someone – disorderly, drunk, threat to security CIVIL RIGHTS ACT 1964 Title II: Prohibits discrimination in places of public accommodation. Dale v. Boy Scouts Elements of a claim: 1. Discrimination 2. Based on Race, Religion, National Origin 3. Public Place Does not cover gender, age, sexual orientation Private club exception State law prohibiting discrimination in places of public NJ LAW AGAINST accommodation. Went further than federal law. DISCRIMINATION Dale v. Boy Scouts 1. Place: As long as an organization meets in a physical place 2. Public Accommodation: evidence of a. Broad solicitation b. Support by government organizations c. Previous recognition as a public organization 3. Distinctly Private Organization a. Small exclusive membership Difference from Federal Law: 1. Includes age, gender, familial status, sexual orientation 2. List of places is extensive and says “but not limited to” 3. Exceptions: private schools based on gender, religious orgs. Lloyd v. Tanner US Constitution does NOT require mall owners to allow access for LEAFLETING IN leafleting. SHOPPING MALLS Some state constitutions DO require mall owners to allow access (NJ) NJ Coalition 1

PROPERTY – Issue OL Term Definition / Elements Cases RELATIONSHIPS AMONG NEIGHBORS WATER RIGHTS When owners develop land and expel water onto neighboring property, the courts must determine whether this constitutes a valid exercise of ht developer’s right to use her own land or a violation of the rights of the neighbor to be free from flooding damage. Armstrong v. Francis Majority View Reasonable Use Rule: Allowed reasonable discharge of water, provided there is no substantial harm. Decision of what is a reasonable use is left up to the jury or judge depending on the circumstances of the case Minority View Natural Flow / Civil Law Rule: Cannot discharge water in any way other than through natural drainage paths. Common Enemy Rule: Absolute right to cast off any unwanted water. LATERAL SUPPORT Adjoining landowners have an absolute duty to support their neighbor’s land in its natural condition. No absolute duty to support structure built on that land if the land in its natural condition would not support such structures. Only have a duty not to act negligently in removing support structures. Liability: Strict liability RETAINING WALLS Neighboring landowners have an absolute duty to maintain retaining walls. Liability: Negligence Noone v. Price STRUCTURES ON LAND No duty to support additional structures on the land that would not be supported in the land’s natural state. Minority View: Some states have statutes that require supporting structures. Massachusetts State Building Code SUBJACENT SUPPORT Surface owners have an absolute right to subjacent support for their land. Liability: Those who withdraw subjacent support for the surface are strictly liable for damage to the land in its natural condition. Friendswood Many states impose a reasonable use standard requiring that owners WITHDRAWL OF not withdraw water or oil beneath the lands of other if this will result in Development GROUNDWATER a loss of support for the surface of neighboring land. Liability: Negligence standard. LIGHT AND AIR Owners are free to build in ways that interfere with neighbors’ interests Fontainebleau in light and air. (No easement for light and air) Prah v. Maretti Minority: Apply nuisance doctrine to determine whether it was an unreasonable and substantial interference. NUISANCE Unreasonable and substantial interference with another’s use and enjoyment of their own property Page County Factors: 1. Manner in which activity is conducted 2. Place where it is conducted 3. Priority: who was there first 4. Nature of the activity being harmed 5. Gravity of the harm 6. Ease of abating harm 7. Utility of the conduct Boomer Cement Remedies: Four Possible Outcomes: DeSario 1. Injunction 2. No Relief 3. Damages 4. Purchased Injunction 2

Term ADVERSE POSSESSION

PRESCRIPTIVE EASEMENTS

LICENSES IRREVOCABLE LICENSES

EASEMENT BY ESTOPPEL

EASEMENT BY CONSTRUCTIVE TRUST SERVITUDES

Definition / Elements Transfer of property to someone that is trespassing CLEAR AND CONVINCING EVIDENCE Elements: 1. Actual Possession 2. Open & Notorious 3. Exclusive 4. Continuous a. Tacking b. Seasonal use – look at the land in the context in which it would be used 5. Adverse or Hostile 6. Statutory Period Limited rights to use the property of another in a specific way

PROPERTY – Issue OL Cases

Elements: 1. Actual USE 2. Adverse or Hostile 3. Open & Notorious 4. Continuous 5. Statutory Period NOT: 1. No ACTUAL possession 2. No Exclusive Must be used for the same purpose Permission to enter someone else’s land that is revocable at will. Four circumstances where license is irrevocable. 1. License coupled with an interest (Ex. someone sells their property, must still allow person to come onto the property to move the car) 2. Theater tickets 3. Easement by Estoppel 4. Easement by Constructive Trust Owner is estopped from revoking the license if he induces the other party to reasonably rely to his detriment on the license. Elements: 1. Permission 2. Reasonable reliance upon that permission 3. To his detriment (Typically some kind of investment) Court treats a property arrangement as if the grantor had created a trust arrangement, regardless of grantor’s intent Legal device that creates a right or an obligation that runs with the land or with an interest in land. Four Issues: 1. What are the formal requirements to create a right or obligation that will run with the land? When are informally create expectation enforceable by or against subsequent land owners? 2. When meaning is unclear, how should ambiguities be interpreted? 3. What are the substantive requirements for validity of servitudes? a. Determining when land use restrictions are immediately void as against public policy b. Determining when rights or obligations, although valid as contracts between the parties who agreed to them will not be allowed to run with the land binding and / or benefiting future owners? 4. How can servitudes be modified or terminated?

Brown v. Gobble Nome 2000

Community Feed

Holbrook v. Taylor

Rase v. Castle Mountain

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Term EASEMENTS Dominant Estate Servient Estate AFFIRMATIVE EASEMENTS

NEGATIVE EASEMENTS EASEMENT APPURTENANT

EASEMENT IN GROSS EXPRESS EASEMENTS IMPLIED EASEMENTS QUASI-EASEMENTS

EASEMENTS IMPLIED BY NECESSITY

COVENANTS

Remedy

Definition / Elements Irrevocable Servitudes One who benefits from the easement One that bears the burden Right to do something on someone else’s land

PROPERTY – Issue OL Cases

Right of Way: Obligation on landowner on which the road sits to allow the neighbor to use the road for passage Right to prevent people from doing things on your land Easements that are intended to run with the land such that the benefit of the easement will pass to any future owner of the dominant estate and the burden will be imposed on any future owner of the servient estates. 1. Intend to run with the land 2. In writing 3. Owner of the servient estate purchased with notice of the easement Easements are not intended to be attached to the ownership of particular parcels of land. Requires common prior ownership Easements implied by prior use Elements: 1. Common ownership at some time in the past 2. Use of the servient estate for the benefit of the dominant estate was obvious and apparent 3. Necessary and beneficial use of the land An easement is implied by necessity. Elements: 1. Common ownership sometime in the past 2. Absolute necessity Land use restriction intended to run with the land. Normally enforced by owners of the dominant estate against the servient estate. Negative Covenants – prohibit certain kinds of uses Elements: 1. Writing 2. Intent for it to run with the land 3. Notice to future land owners a. Actual b. Inquiry c. Constructive 4. Touch and concern 5. Privity a. Horizontal Privity: Privity between the original parties of the covenant. Relationship different from just being neighbors. Examples: i) Mutual covenants ii) Conveyance of property from one to another iii) Simultaneous Privity b. Vertical Privity: Privity between original landowner and later landowners who take over through the sale of property i) Landlord/Tenant not usually vertical privity Injunction Damages (DIFFERENCE FROM EQUITABLE SERVITUDES)

Green v. Lupo Cox v. Glenbrook

Granite Properties v. Manns

Finn v. Williams

Kotseas

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Term EQUITABLE SERVITUDES

Remedy IMPLIED RECIPROCAL NEGATIVE SERVITUDE

DEFENSE FOR TERMINATION / MODIFICATION OF COVENANTS

CONDOMINIUMS

HOMEOWNERS ASSOCIATIONS

PROPERTY – Issue OL Definition / Elements Cases Land use restriction that is intended to run with the land. Elements: 1. Writing 2. Intent 3. Notice 4. Touch and Concern NOT: 1. Privity Damages Developed to deal with the intent, notice, and privity of estate issues that arise when a developer imposes grantee covenants on a lot in a residential subdivision and he intentional or inadvertently leaves the restrictions off of some of the deeds. Evans v. Pollock Elements: Riley v. Bear Creak 1. Common owner 2. Common Plan or Scheme: Original developer intended the lot to be included in the plan a. Declaration stating that the covenants are meant to be mutually enforceable b. Presence of restrictions in all or most of the deeds c. A recorded map d. Presence of restrictions on the last deed e. Owners’ observance of other restrictions 3. Notice El Di 1. Doctrine of Changed Conditions Blakely v. Gorin 2. Relative Hardship Doctrine: Compares benefit to burden. If the hardship to the servient owner is great by considerable magnitude than benefit to other owner 3. Acquiescence: Has tolerated violations of the covenant in the past 4. Unclean Hands: Has violated the covenant himself 5. Abandonment: So many landowners in the area violate the common covenant that between their unclean hands and acquiescence, the covenant becomes unenforceable 6. Estoppel: When dominant estate owner orally represents he will not enforce the covenant to the owner of the servient estate, he may be estopped from enforcing the covenant if it is shown the owner of the servient estate changed his position in reliance of the oral argument. 7. Laches: When someone waits so long to bring a suit to enjoining a violation that the breaching D is unduly harmed by the delay itself. 8. Marketable Title Acts: Some jurisdictions require that people rerecord covenants after a certain period of time or it will terminate. Common interest community where people give up certain rights in exchange for certain benefits. Individuals own their units in fee simple and own common areas as tenants in common. Established by declaration Condominium association with votes divided according to the size of the units Board has the power to manage common areas, pass rules regulating behavior Now regulated by statutes in most states Residential subdivisions regulated by a homeowners association. Often common areas are owned by a separate entity than the owners.

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PROPERTY – Issue OL Cases Appel v. Presley O’Buck v. Cottonwood Neuman v. Grandview

Term REASONABLENESS STANDARD

Definition / Elements Condominium boards must act reasonable in making exceptions to covenants and in enforcing covenants.

RESTRAINTS ON ALIENATION DIRECT RESTRAINTS ON ALIENATION / TRANSFER CONSENT TO SELL

Absolute restraints on alienation will be struck down, reasonable restraints on alienation will be upheld. Not enforceable unless a charitable group (standards are looser). Traditional view against any restraint on alienation as repugnant to fee will normally be applied Usually not upheld unless in a cooperative.

RIGHT OF FIRST REFUSAL

Will be upheld if seller is offered fair market value or equal price and it is exercised within a reasonable time period.

Horse Pond Fish and Game Northwest Riste v. Eastern Washington Bible Aquarian Foundation Wolinksy

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PROPERTY – Issue OL Term Definition / Elements Cases ESTATES AND FUTURE INTERESTS Types of Estates: Future Interest 1. FEE SIMPLE None a. FEE SIMPLE ABSOLUTE ∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙ b. DEFEASIBLE FEES Possibility of Reverter i) FEE SIMPLE DETERMINABLE ∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙ Right of Re-Entry ii) FEE SIMPLE SUBJECT TO CONDITION SUBSEQUENT ∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙ Executory Interest iii) FEE SIMPLE SUBJECT TO EXECUTORY LIMITATION ∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙ 2. LIFE ESTATE Reversion a. LIFE ESTATE WITH REVERSION ∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙ Remainder b. LIFE ESTATE WITH REMAINDER ∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙ i) CONTINGENT REMAINDER ii) VESTED REMAINDER Reversion or Remainder 3. FEE TAIL ∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙ Reversion or Remainder 4. LEASEHOLD ESTATE ∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙∙ FEE SIMPLE Estate could last forever. The owner can leave it to her heirs or write a will determining who will get it when the owner dies. FEE SIMPLE ABSOLUTE Absolute ownership “O to A” or “O to A and his heirs” Language “in his heirs” does not give any actual interest to heirs Inheritable Alienable NO Future Interest DEFEASIBLE FEES Have the potential, though not the certainty, of infinite duration. Terminate upon the happening of an event named in the original conveyance, at which time ownership passes to the owner of the future interest. Inheritable Alienable 1. Fee Simple Determinable 2. Fee Simple Subject to Condition Subsequent 3. Fee Simple Subject to Executory Limitation FEE SIMPLE DETERMINABLE Future interest vests in grantor automatically when the condition occurs. “O to A, so long as used for residential purposes” “as long as,” “during,” “while,” “unless” Subject to a condition, if condition is not met, goes back to O Inheritable Future Interest: Possibility of Reverter Future interest vests in grantor if he asserts if after condition occurs. FEE SIMPLE SUBJECT TO CONDITION SUBSEQUENT Does not automatically end, but ends after the condition occurs and the grantor elects to re-enter and terminate. “O to A, so long as used for residential purposes, but if not so used, O shall have a right of re-entry” “but if,” “provided that,” “on condition that” Future Interest: Right of Re-Entry

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Term FEE SIMPLE SUBJECT TO EXECUTORY LIMITATION

LIFE ESTATE

LIFE ESTATE WITH REVERSION

LIFE ESTATE WITH REMAINDER LIFE ESTATE WITH CONTINGENT REMAINDER

LIFE ESTATE WITH VESTED REMAINDER

FEE TAIL

LEASEHOLD ESTATE

PROPERTY – Issue OL Definition / Elements Cases Future interest vests in a third party other than the grantor after the condition occurs. “O to A, so long as used for residential purposes, and then to B” Same as fee simple determinable except the future interest belongs to a third party rather than a grantor Alienable Future Interest: Executory Interest Ends with someone’s death Pass to either the grantor / heirs as a reversion or to a third party as a remainder. “O to A for life” Unlike fee simple absolute, no ability to pass the property on after death Interest can be transferred Dependent on A’s life Future Interest: Reversion Remainders are either vested or contingent. “O to A for life, then to B” Future Interest: Remainder, interests created in a grantee Remainder belongs to an unascertained person or if there is a condition that must be fulfilled before it can become possessory. “O to A for life, then to B if B graduates from college” Future Interest: Remainder Belong to an ascertainable person and no conditions must be satisfied before it becomes possessory. “O to A for life, then to B” Absolutely Vested: “O to A for life, then to B” Vested Subject to Open: “O to A for life, then to B’s kids” Vested Subject to Divestment: “O to A for life, then to B, but if B has flunked out of law school, then the property shall revert back to O” Future Interest: Remainder Potential to last forever, ends if and when the first fee tail tenant has no lineal descendants to succeed him in possession “to A and the heirs of his body” Abolished everywhere Most states will convert it to a fee simple Some states will convert it to a life estate and remainder Estate lasts for a fixed time or by other agreement between a landlord and tenant “O to A for 10 years” Landlord-tenant relationship Future Interest: Reversion or Remainder

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Term RULE AGAINST PERPETUITIES

Modifications

PROPERTY – Issue OL Definition / Elements Cases Invalidates future interests that could vest too far into the future No interest is good unless it must vest, if it all, no later than 21 years after the death of a life in being at the creation of that interest. Central Delaware Applies To: County Authority v. Contingent Third Party Future Interests (Not vested) Greyhound 1. Executory Interests: “O to A so long as used for hosp, then to B” 2. Contingent Remainders: “O to A for life, then to B if B graduates” 3. Vested Remainders Subject to Open: “O to A for life, then to A’s children” 4. Options: Courts view options as executory interests Does Not Apply To: 1. Vested Interests a. Reversions: O to A for life b. Vested Remainders: O to A for life, then to B c. Vested remainders subject to divestment: O to A for life, then to B, but if… 2. Contingent interests in the grantor a. Possibility of Reverter: O to A so long as used for a hospital b. Right of Re-Entry: O to A for use as hospital, but if not, then B has right… 1. Wait and See – makes more future interests valid 2. Uniform Statutory Rule Against Perpetuities – 90 Year period 3. Statutory Cut-off for Grantor Rights 4. Marketable Title Acts

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PROPERTY – Issue OL Term Definition / Elements REGULATION OF THE MARKET FOR HOUSING COMMON OWNERSHIP When one or more people own land in common. Three Forms: 1. Tenancy in Common 2. Joint Tenancy 3. Tenancy in Entirety TENANCY IN COMMON A form of concurrent ownership where two or more persons own the same property at the same time. Characteristics: 1. Undivided Interest: Each T owns right to possess entire property 2. Ownership interests are f...