Term
| Policy Considerations of Property Law |
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Definition
• Social welfare/Utility/Efficiency
o Socially desirable labor or investment – not all labor of investment is
o Protecting settled expectations can encourage labor and investment
o Undesirable to have monopolies
• Fairness/justice
o Fair, right, just, morally right that person’s enjoy the fruits of their labor.
o Equitable access to resources
o First in time – the person who was there first created a marker that imbues him with rights
• Human dignity/human autonomy
o Right to exclude
o What kinds of things can be owned (Moore v. Regents)
• Having markets in certain kinds of property erodes our view of what is human
• Workability/Administrability
o Rules that are put to work in an administrable fashion
o Clear as possible – easily implemented, reduce litigation. Cf. Lack flexibility, may cost fairness and social welfare
• Institutional roles
o Common law doctrine
o Legislators more and more involved – boarder view of the concept and give more perspective of all the constituency involved, can take time to make decisions, can offer specificity. Cf. Control their own agenda can duck a lot of problems. We might want attention to the politically powerless.
• Courts: limited by the cases before them, time constraints, not craft specific easy to follow rules:
• BUT: Can offer a voice to the politically voiceless |
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Term
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Definition
• Goals: (1) reunite true owner with their property, (2) encourage finder to do honest thing and reunite property with true owner, and (3) clarify the rules and hierarchy of ownership to prevent disputes
• As a matter of utility, if property can be useful to someone, it should be used (assuming true owner no longer wants it)
• True owner has rights to their property unless they abandoned it (gave up rights)
• Types of property found:
o Mislaid
o Abandoned
o Lost
o Treasure trove |
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Term
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Definition
• Enables trespassers to claim property, even against true owner who did not relinquish rights
• Requires:
o Possession (actual): possessors used/occupied land
o Open and notorious: use/occupation must be visible to true owner (a reasonably diligent owner would notice someone on their land)
o Exclusive: possessor asserts rights as true owner, such as excluding others
o Continuous: uses land as a typical owner would or as customarily used (e.g. using a summer house only in the summer as a typical owner would)
o Hostile or adverse: used land without consent of true owner; true owner did not give consent
o Statutory period: possessor used/occupied land for at least specified period (differs by state and sometimes whether is good faith, color in title, etc.) |
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Term
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Definition
Water rights are acquired by giving notice of intent to appropriate, diverting water, and putting it to “beneficial use.”
o Rule in the west (e.g. Colorado) – important because it promoted land development and farming that could not happen with riparian rights
o Encouraged water use; historically water that went to ocean considered wasted
First in time, first in right – early (senior) appropriators take priority over later (junior) appropriators. Crucial if drought is common or water is limited.
The priority date for appropriation is the date work commenced, rather than the date of first application to the beneficial use provided that the appropriator works with reasonable diligence to complete the project. |
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Term
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Definition
Involuntarily parted from owner.
Location not known by owner.
Finder’s claim good against any but owner. |
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Term
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Definition
Placed somewhere then forgotten.
Owner might remember location.
Owner of the premises has claim good against all but owner. |
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Term
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Definition
Owner has intentionally given up rights.
Finder becomes the new owner. |
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Term
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Definition
• owner of land can make reasonable use of water that is attached to their land
o Rule in England and eastern US |
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Term
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Definition
Government has responsibility to protect waterways on behalf of public for public’s reasonable use and as an ecological resources
o Covers submerged lands subject to ebb/flow of tide and lands under lakes, rivers, etc. (historically important for transportation and fishing); at the federal level, statutes supersedes most common law; can extend to cover park land and now covers ecological resources and conservation
o Public Trust: government has responsibility to protect waterways for use by public and as an ecological resource
o Dedication: gift of real property from a private owner to the public
o Prescription: public has used private property for a long time (statutory period) and can be awarded permanent right to continue using land (easement)
o Custom (used by Oregon Supreme Court): to avoid problems with prescription, courts use custom which does not require as definite of a statutory period – do not need to know difference between custom and perscription |
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Term
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Definition
| Any unconsented and unprivileged intrusion onto someone else’s land; no harm required |
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Term
| Public Accommodations Statutes |
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Definition
• Civil Rights Act: response to Jim Crow laws and southern segregation; cannot discriminate based on race
o States can have more comprehensive groups that cannot be discriminated against or say “disparate impact” is sufficient to count as discrimination |
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Term
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Definition
• Common enemy rule: Can do whatever you want to remove surface water from your land with no liability to any harm caused
• Civil rule / Natural flow rule: Cannot alter the natural flow; if you alter flow, you are liable for any resulting harm
• Reasonable use test: can push water off his property, but it can only be a reasonable interference
o Damages to plaintiff, social benefit of conduct, and availability of cost effective means to mitigate the harm
• Encourage development of land v. security investment of current developed property; increased litigation may come out of reasonableness ruling |
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Term
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Definition
A private nuisance is a substantial and unreasonable interference with the right to use and enjoy property.
o Two tests in the Restatement:
• Social Utility Test: Gravity of harm > utility of conduct causing the harm = unreasonable interference
• Gravity of harm considerations: extent and character of harm, “social value” attached to use/enjoyment invaded, suitability of particular use/enjoyment to location, burden on person harmed
• Utility considerations: social value attached to purpose of harmful conduct, suitability of conduct to particular location, impracticality of preventing/avoiding invasion
• Fairness test: Serious harm + compensation would not make conduct infeasible (not paying for harm) = unreasonable interference
• Fairness considerations: character of the harm, distributive considerations, fault
• Welfare consideration: costs and benefits, incentives, and lowest cost avoider |
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Term
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Definition
o Property Rules
• Absolute entitlement to engage in conduct or be secure from harm
• Winner - plaintiff: injunction; defendant: dismiss complaint
o Liability Rules
• Prohibit each party from interfering with interests of others unless they are willing to pay for damages as determined by a court of law
• Winner – plaintiff: damages; defendant: purchased injunction
o Inalienability Rules
• Assign entitlements and prohibit those entitlements from being bought or sold |
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Term
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Definition
| Grantor has no future interest; most complete form of ownership law allows; land can still be subject to restrictions (easements, local zoning regulations, etc.); property transfers are presumed to be fee simple unless stated otherwise |
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Term
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Definition
| Allows someone to possess and control property for their lifetime, but that person cannot decide what happens to it after their death; can sell a life estate (life estate per autre vie), but not very popular in US; some states have statutes allowing for judicially supervised sale of property with division of proceeds going to life tenant and future interest holder if that is the best thing for all |
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Term
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Definition
Fee interest may be terminated in future
o Fee simple determinable: land automatically reverts to grantor as fee simple if possessor violates conditions
o Fee simple subject to condition subsequent: grantor can get land back if condition is violated, but it is not automatic (must assert right within reasonable time or property could be adversely possessed by possessor) |
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Term
| Fee simple subject to Executory limitation |
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Definition
| Transfers to third party if condition is violated |
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Term
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Definition
In general, a property owner can exclude anyone from her property. Those who want access must negotiate for it. Landowner can open property or not, on her terms.
Under this general rule, any physical entry on another’s property without permission is a trespass. Remedy for continuing trespass is usually ejectment. |
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Term
| Real covenants and equitable servitudes |
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Definition
Private agreements limiting use of specific lands for specific purposes or in specific ways.
Can “run with the land,” binding subsequent owners without explicit agreement, if certain elements are satisfied.
Analyze benefit side and burden side separately, and pay attention to whether legal or equitable remedies are sought. More restrictive about burdens running than benefits and about damages than equitable remedies. |
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Term
| Requirements for agreements to run with the land |
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Definition
Writing sufficient to satisfy the Statute of Frauds.
Notice to subsequent owners.
Intent to bind subsequent owners.
Burden must “touch and concern” the land. Split on whether benefit must touch and concern for burden to run.
Privity of estate, horizontal and vertical. |
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Term
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Definition
| Refers to the relationship between the original covenanting parties. They must both have some interest in the same land at the time the covenant is created. Sale of land, or a lease, or an easement agreement is enough. But agreements between neighbors lack horizontal privity. |
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Term
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Definition
| Refers to the relationship between the covenanting parties and their successors. Successor gets everything the transferor has. No future interests held back. So a sale creates vertical privity but a lease does not. |
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Term
| Termination of real covenants / equitable servitudes |
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Definition
By release (all beneficiaries must join)
By laches or estoppel (personal to beneficiary)
By changed conditions or relative hardship (the doctrine for considering the public interest, preventing beneficiary “hold-ups”)
By the terms of the covenant
By merger of the benefitted and burdened estates
By operation of a marketable title statute |
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Term
| Requirements for benefits to run in equity |
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Definition
Intent to benefit successors.
Benefit must “touch and concern”. |
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Term
| Added requirements for burden to run at law |
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Definition
Horizontal privity (refers to the relationship between the original covenanting parties).
Vertical privity (refers to the relationship between the covenanting parties and successors)
For benefit to run at law, horizontal privity may not be required and vertical privity is typically relaxed |
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Term
| Rule Against Perpetuities |
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Definition
• No interest is good unless it must vest, if at all, no later than 21 years after the death of some life in being at the creation of the interest
o i.e.: Interests are good if they vest no later 21 years after a life in being at the time the interest is created
o Life in being: natural person who is alive at creation of interest and are part of the vesting event; validating life
o Nine months added as a gestational period (only when babies are involved)
o Rule of convenience: class closes (O to A for life, then A’s grandchildren), but for RAP in most states entire class must vest or the future interest is considered a “fail”
o Applies to all property, not just land |
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Term
| Reforms of Rules Against Perpetuities |
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Definition
o Wait and See
• Pros: validates more interests; presumably effectuates grantors’ intents more
• Cons: leaves estates in limbo; uncertainty may not be worth it if interest fails
o Cy Pres: as near as possible
• Equitable modification; gives courts some discretion to modify terms which fail technical requirements of the rule; con: where to draw the line?
o Uniform Statutory RAP (USRAP)
• Wait and see but only for 90 year period, also allows for cy pres
• Gets rid of measuring life
• This is what CA uses
o Eliminate
• Some states do not have RAP (notably NJ) |
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Term
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Definition
Default form of co-ownership
Undivided rights of possession
Can hold unequal shares; revenues and expenses shared absent ouster
Each co-owner can transfer her individual interest without consulting the others
Right to partition, preferably physically but if necessary by sale |
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Term
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Definition
Must be expressly created
Right of survivorship
Undivided rights of possession
Must hold equal shares
Each co-owner can transfer her individual interest without consulting the others; a sale severs the joint tenancy
Right to partition |
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Term
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Definition
Units owned individually; common areas as tenants in common
Common areas cannot be partitioned
Rights in the common areas transfer with the units
Creatures of state statutes
Governed by a recorded Declaration and a board of unit owners |
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Term
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Definition
o Term of years:
• Lease is for a specified period of time; must be in writing if more than a year
o Periodic tenancy:
• Renews automatically for specified periods (e.g. month-to-month leases)
• Notice is required before either party can terminate relationship
o Tenancy at will:
• Similar to periodic, but can end without notice
• Many states have eliminated these through statutes requiring notice
o Tenancy at sufferance (holdover tenant):
• Tenant once had rightful possession but wrongfully stays after lease
• Tenant may be entitled to certain protections (not a regular trespasser) |
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Term
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Definition
Convey permission to enter, often for a specific purpose.
Are usually short-term, often revocable at will.
Are not considered interests in land, and therefore can be created without a writing.
Are personal to the licensee. They cannot be transferred without agreement of the licensor.
Terminate on the death of either party. |
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Term
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Definition
An easement is an interest in land. Commonly (but not always) created through a writing.
Terminology: an easement conveys the right to use land termed the “servient” (burdened) estate.
Easements may be “in gross” (personal) or “appurtenant” (attached to the “dominant” land). |
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Term
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Definition
The burden of an easement always transfers with the servient estate.
The benefit of an appurtenant easement transfers with (and only with) the dominant estate.
The benefit of an easement in gross may or may not be transferable. Commercial easements (such as utility or railroad easements) are typically transferable. Easements that are exclusive and those that were purchased are also more likely to be transferable. |
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Term
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Definition
Most commonly explicitly, by a written express grant, which is then recorded.
By estoppel.
By implication (from prior use or from necessity).
By prescription. |
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Term
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Definition
May be specified by the terms of the easement. Often by their terms easements are perpetual.
Easements terminate if the dominant and servient estates “merge”.
Easements can be lost by abandonment or adverse use. |
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Term
| Implied Warranty of Habitability |
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Definition
• Javins v. First National Reality Corp. – landmark case that allowed tenants to bring defense for not paying rent and allowed private causes of action based on housing code
• Remedies available to tenants:
o Rescission: right to move out before the end of the lease term
o Rent withholding: right to stop paying rent and continue living in the premises; usually preferred remedy; if landlord sues for rent, tenants can raise habitability defense and usually court will reduce rent by some amount
o Rent abatement: entitled to a reduction in rent
o Repair and deduct: tenant may make repairs and then deduct costs from rent (must be reasonable costs); maybe fastest way to get something repaired
o Injunction: may get court order requiring landlord to fix problem
o Administrative remedies: landlords maybe fined |
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Term
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Definition
• Landlords used to be able to exercise self-help to evict tenants who did not pay rent, NO retaliation
• To prevent violence, especially at residential property, landlords must go through judicial process (summary process) to evict tenants; then use sheriff if court orders are not obeyed
• If tenant doesn’t pay, but left, landlord has three options:
o Accept surrender: release tenants from lease, take unit back and rent to someone else (landlord can collect back rent from tenant who left)
o Re-let on tenant’s account: landlord tries to find new tenant but original tenant responsible for any rent not collected during lease period; landlord must first notify original tenant they will be re-letting; do not make new lease longer than original
• Landlord must mitigate damages (put in good faith effort to re-let) – in CA tenants have burden of proving no attempts were made
• Policy: encourages landlords to rent premises rather than leaving them vacant (do not want to waste scarce resource)
o Wait and sue at lease’s end: landlord sues tenant at end of lease to collect all the back rent (no longer available in most jurisdictions) |
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Term
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Definition
No explicit or written promise not to revoke permission.
Land user reasonably believes permission will not be revoked.
Land user changes position in reliance on that belief, and owner of servient estate knows that user is taking action dependent on long-term permission. |
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Term
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Definition
1) Easements implied from prior use:
Land in common ownership.
One portion used for the benefit of another.
That use is apparent, and should be expected to continue.
2) Easements implied from necessity:
Land in common ownership.
Severance creates a landlocked parcel.
Requires “strict” necessity.
Some states allow private condemnation of a way of necessity. |
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Term
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Definition
Must be an agreement between L and T. May be oral or written. If the term is longer than one year, must be in writing or satisfy an exception to the statute of frauds.
Leasehold (tenancy) may be periodic or for a term of years. Periodic tenancies may be created simply by occupancy and periodic payment. They renew automatically unless ended by either party with adequate notice, historically one period but today likely defined by statute
Tenancies for a term of years do not automatically renew. Historically the landlord had no obligation to renew, but that has been changed in some places by statute. |
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Term
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Definition
1) Deliver the premises.
2) Do not disturb the tenant’s quiet enjoyment, meaning historically do not interfere with T’s exclusive and complete possession of the premises. Broadened today by the doctrine of constructive eviction.
3) For residential tenancies, maintain the premises in a habitable condition. In most jurisdictions, this duty cannot be waived by the contract. |
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Term
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Definition
1) Pay the rent, unless and until surrender is accepted. Generally now subject to L’s duty to mitigate damages.
2) Other covenants as specified in the lease agreement. |
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Term
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Definition
L may transfer the property, subject to an existing lease.
T may transfer the tenancy, unless prohibited by the lease.
Leases frequently prohibit sublease or assignment, or allow them only with L’s consent.
In some jurisdictions, for some leases, L may not withhold consent unreasonably. More common in commercial than in residential context. |
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Term
| Duty to Mitigate Damages in Lease |
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Definition
The harshness of allowing L to prohibit transfer by T is softened by the adoption in most jurisdictions of an obligation on L to mitigate damages.
If T surrenders possession, T remains obligated to pay rent for the duration of the lease unless L accepts surrender. But L must take reasonable steps to find an acceptable substitute tenant. |
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Term
| Adverse Possession Justification |
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Definition
Marker for abandonment.
Repose. Resolve or remove stale claims.
Resolve uncertainties about ownership.
Protect settled expectations of possessors.
Encourage use of a limited resource? Reward useful labor?
Limit concentration of landownership? |
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Term
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Definition
Are implied easements granted after the dominant estate has used the property in a hostile, continuous and open manner for a statutorily prescribed number of years. Prescriptive easements differ from adverse possession by not requiring exclusivity.
Requires:
open and notorious (i.e. obvious to anyone),
actual, continuous (i.e., uninterrupted for the entire required time period),
adverse to the rights of the true property owner
hostile (i.e. in opposition to the claim of another. This can be accidental, not "hostile" in the common sense)
continuous for a statutorily defined period of time |
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Term
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Definition
The state may enact statutes to reasonably control the use of land for the protection of the health, safety, morals, and welfare of its citizens.
Zoning is the division of jurisdiction into which certain uses and developments are permitted or prohibited, power based on police power. |
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Term
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Definition
| Ownership of the land carries with it the right to have the land supported in its natural state by adjoining land--a landowner is strictly liable if his excavation causes adjacent land to subside |
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Term
| Right to subjacent support |
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Definition
| When a landowner conveys to grantee the right to take minerals from beneath the land, the grantor retains the right to have the surface supported unless the conveyance expressly includes authority to destroy the surface if "reasonably necessary" to extract the minerals |
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Term
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Definition
| A remainder is vested if (1) the remainder is given to a presently existing and ascertained person, and (2) it is not subject to a condition precedent. A vested remainder may be indefeasibly vested, meaning that it is certain to become possessory in the future, and cannot be divested. |
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Term
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Definition
| (1) it is given to an unascertained or unborn person, (2) it is made contingent upon the occurrence of the natural termination of the preceding estates. |
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Term
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Definition
| If it belongs to a class of beneficiaries, where that class can expand. A common example is a grant from O "to A's children", where A is a man: the class of A's children can't be closed until approximately thirty eight weeks after A dies, so any children alive at the time of the grant are vested subject to open. This interest is also sometimes referred to as being vested subject to partial divestment. |
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Term
| Vested remainders subject to divestment |
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Definition
| If something could occur that would divest the remainder of an interest. For example "From O to A for life, then to B, but if A stops growing corn, then to C": B would have a vested remainder subject to divestment because he could be divested of his interest by an act of A before the interest becomes possessory. |
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Term
| What is privity (generally)? |
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Definition
| A connection or relationship between two parties, each having a legally recognized interest in the same subject matter |
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Term
| What does "ad coelum et ad infernos" refer to? |
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Definition
| "To heaven and the depths"; this is a traditional rule that states whoever owns the surface of the land owns the space above and below it |
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Term
| What are fugitive minerals? |
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Definition
| Minerals that move beneath the surface |
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Term
| What are the two ownership theories for fugitive minerals? |
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Definition
1. Non-ownership - no one owns fugitive minerals until they are captured
2. Ownership-in-place - Each property owner (A & B) owns the fugitive minerals beneath their land, but if A extracts the mineral first he divests B of ownership |
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Term
| What are the 2 common law doctrines of Riperian water? |
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Definition
1. Natural flow - right to not have the water decreased in either quality or quantity
2. Reasonable use - balancing test between the use one owner makes of the water and the use of another owner |
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Term
| What is the common law Prior Appropriation doctrine for Riperian water? |
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Definition
| An entity that makes a prior use of water has the right to continue doing so; this is not attached to ownership of land |
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Term
| What are the 2 doctrines for diffuse surface water? |
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Definition
1. Common enemy - diffuse surface water is the common enemy of everyone, so everyone has a right to fight this enemy in his own way
2. Civil law rule - you cannot affect the flow of surface water at all; if you do affect the flow and damage results, you are liable for damage |
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Term
| What is the distinction between a tenancy and a license? |
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Definition
| A tenant who has a lease is entitled to possession and exclusive occupancy of the premises; A licensee merely has a contract for use without a transfer in an interest of land |
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Term
| Factors to consider when determining if a concessionary is a tenant or licensee. |
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Definition
- Whether they occupy a fixed space or can be moved around at the will of the establishment
- Does the larger business have little or much control over their activities?
- Is the space they occupy clearly or indistinctly set off from the rest of the establishment?
- Is the money given called "rent" or something else? |
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Term
| What are the several tenancies? (Any leasehold estate will be one of these 4 types) |
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Definition
1. Term for Years (aka Fixed Tenancy)
2. Periodic Tenancy
3. Tenancy at Will
4. Tenancy at Sufferance |
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Term
| How is a Periodic Tenancy created? |
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Definition
1. By agreement
2. By the act of periodic payment coupled with either indefinite agreement or void lease
3. By consent of landlord to holdover tenant |
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Term
| How is a Tenancy at Will created? |
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Definition
1. By agreement
2. By taking possession with consent only
3. By entry under void lease prior to any periodic payments |
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Term
| How is a Tenancy at Will terminated? |
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Definition
1. By either party without notice
2. Tenant's attempt to assign
3. Conveyance of landlord
4. Death of either party |
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Term
| How is a Tenancy at Sufferance created? |
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Definition
| By entering rightfully and retaining wrongfully (i.e. a holdover tenant) |
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Term
| How is a Tenancy at Sufferance terminated? |
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Definition
| After a reasonable time to make demand (get out) or election (if you stay, it is now a periodic tenancy and this is the rent amount -- the rend must be reasonable in relation to the property) |
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Term
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Definition
| A promise to do or not do something |
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Term
| What remedies are available to a tenant when a defect effects habitability? |
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Definition
1. Rescission of contract (termination of lease)
2. Damages (compensatory..sometimes punitive)
3. Rent Withholding
4. Reformation (reforming the lease) |
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Term
| What happens when a lease abandons property? |
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Definition
This is considered an offer of termination. The landlord can:
1. Accept the offer and effect the termination (re-enter on landlord's account)
2. Do nothing and collect/expect rent (then sue for anticipatory breach)
3. Re-enter on the tenant's account and re-let to another tenant ("mitigation") |
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Term
| What is a covenant running with the land? |
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Definition
Not necessarily an interest in land, but it's an interest that grows out of promises made by landowners (usually concerning how the promisor's land will be used or enjoyed).
A covenant is a non-possessory interest in land.
Every covenant has both a benefit and a burden. |
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Term
| Who is bound by covenants running with the land? |
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Definition
| Who is bound by covenants running with the land? |
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Term
| How can covenants running with the land be enforced? |
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Definition
1. At law (legal remedy = damages)
2. In equity (injunction) |
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Term
| What are the requirements for a covenant to bind an assignee of a leasehold? |
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Definition
1. Intent (by the original covening parties that the benefit/burden run to successors in interest)
2. "Touch and concern" the estate
3. Privity (both horizontal and vertical)
(4. Writing - Statute of Frauds requirement) |
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Term
| What are the tests for determining if a covenant "touches and concerns" an estate? |
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Definition
1. The Bigelow Test: Does the burden/benefit make the ownership of the interest more valuable?
2. The Clark Test: If an individual would naturally regard the covenant as benefiting the promisee or burdening the promisor, the requirement is fulfilled
3. Traditional Method: Is the covenant one that has traditionally been held to touch and concern an estate? (paying rent, use restrictions) |
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Term
| What is horizontal privity? |
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Definition
- Rests on the relationship of the original covenanting parties
- Requires that at the time the promisor entered into the covenant with the promisee, the two shared some interest in the land independent of the covenant |
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Term
| What is vertical privity and how is this requirement satisfied? |
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Definition
It is the relationship between one original covenanting party and a successor in interest.
The requirement is satisfied if the entire estate (entire durational interest) was transferred. Basically, it must be an assignment and not a sublease. |
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Term
| How are easements created? |
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Definition
1. By Grant
2. By Implication
3. By Prescription |
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