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Course: Property Fall Nofar 2002
School: University of Detroit
Year: 2002
Professor: Hand
Course Outline provided by Legalnut.com
 

TRANSFERS OF LAND property outline 2nd semester

 

  1. STATUTE OF FRAUDS

    1. To convey property by deed. Contracts for the sale of land.

    2. Encumber property-to record an interest

    3. EXCEPTIONS to the statute of frauds:

      1. Part Performance

        1. Acts that substantially satisfy the requirements of the statute

        2. To prevent injury to the buyer. Equitable relief

        3. MI:

          1. Possession alone is not enough; you need:

            1. Possession + Money

            2. Possession + Improvements

      2. Estoppel:

        1. Unconscionable injury would result from denying enforcement of the oral contract. One party has been enduced to materially change their position in RELIANCE of the oral contract. (HICKEY v. GREEN; oral K to purchase property; reliance)

        2. Foreseeablity, reasonableness

        3. Damages: specific performance & damages

 

  1. MARKETABLE TITLE compare with VALUE

    1. Requirements (VOBCD)

      1. Implied even if not stated in K

      2. Not subject to reasonable doubt, (litigation) NO encumbrances or defects

      3. No apprehension of its validity in the minds of a reasonable, prudent and intelligent person.

      4. It is unmarketable if vendor owns less than transferable contract; (try to convey more than you own) or property is burdened.

      5. Person would be willing to pay FMV for

      6. Doesn’t have to perfect, just reasonable. Not free from every doubt.

      7. Marketable record of title; has records to back it up

      8. Seller must supply MT at closing.

        1. CONKLIN v. DAVI; sellers title was based on AP—future litigation. This is a flaw of record. and doesn’t allow recession. BAD CASE Ct said title was marketable. There was only a defect of RECORD

    2. Defects

      1. All K’s for the sale of land have implied warranty of marketability. Otherwise buyer can rescind.

      2. In the chain of title. Something in the record shows that the vendor does not have full interest, which he purports to convey.

      3. Private encumbrances. Mortgage lien,

      4. Unrecorded easements. this reduces the full enjoyment of the land

      5. Restrictions on the use to the property. A covenant whose burden runs with the land; “only residential structures can be built.

        1. (LOHMEYER v. BOWER; violation of a restrictive covenant (only single family houses) made title unmarketable) curing the defect would have changed the house and therefore changed the B for E). Land use restriction laws affect title—future litigation. Zoning doesn’t negate marketability. Encumbrances on title don’t make title unmarketable.

    3. REMEDIES, if property is unmarketable

      1. Vendor has until the date set for closing to get title marketable.

      2. If seller doesn’t have marketable title at date of closing:

        1. Buyer may rescind contract and ask for:

          1. damages; difference between the market price and the contract price

            1. refund mortgage payments

          2. Specific performance; equitable remedy when money damages are insufficient

          3. Return of deposit; but if the buyer is unable to close then he will lose his deposit.

 

    1. Risk of Loss; executory K. fire

      1. EXECUTORY PERIOD; B4 YOU HAVE A FULL BUNDLE OF RIGHTS

      2. Buyer has right to the property

      3. Seller has a right to the money

      4. Either party can sue for specific performance, because money damages are insufficient

      5. K creates Equitable conversion, the signing of the contract is viewed as vesting in the purchaser equitable ownership of the land. Interests are converted at time K is signed, not the time the deed is conveyed.

        1. Seller has legal title (lien for the purchase price)

          1. Vendor bears the risk of loss if a loss results from his own negligence

        2. Buyer has equitable title (after the signing but b4 the closing)

          1. risk of loss shifts to vendee (buyer) as soon as the contract is signed

      6. UNIFORM PURCHASERS ACT -MI; the party who bears the loss is the person who is in possession. Because the party in possession can protect against hazards.

    2. Warranty of Quality; Defects in the home seller should hold insurance

      1. What is a Material Defect

        1. Objective test: is it important enough to change decision to purchase?

        2. Subjective test: does the defect “affect the value or the desirability to buyer?

      2. Duty to disclose by Broker & seller all known defects

        1. NOT UNIVERSLY ADOPTED

        2. Misfeasance

        3. Nonfeasance

        4. Mutual mistake

        5. Now there is a duty to disclose in MI.;

          1. If no disclosure then the buyer can rescind the K

          2. JOHNSON v. DAVIS; fraudulent misrepresentation, roof leaked; the defect must be material; modern view requires disclosure. Recession if material

        6. Caveat Emptor

          1. Sambovsky v. Ackley; exception to caveat emptor; the most meticulous inspection would not reveal GHOST. Property was impaired by seller created REPUTATION; not physical conditions; no caveat emptor.

      3. “AS IS” may be unconscionable

        1. This clause will shift risk to buyer when a defect should reasonably have been discovered by buyer’s inspection.

        2. Usually limits liability to seller unless:

          1. Fraudulent misrepresentation; known septic tank back-ups when it rains

          2. Concealment; known furnace problems; sell home in summer

        3. Doesn’t protect seller from federal act CERCLA. Innocent land owner defense: buyer purchases contaminated land and doesn’t know or have reason to know that hazardous substances have been released on the property

    3. Implied Warranty of Habitability/Quality

      1. Against professional builders who built the new home

      2. Used homes sue the original builder if the defect was not obvious;

        1. Latent defects not discoverable by a reasonable inspection and found within a reasonable time.

        2. No privity of contract needed. Implied warranties are not created by an agreement, but are imposed by law.

        3. defect occurred within a reasonable time

        4. LEMPKE v. DAGENAIS; 6 months (must be found w/in a reasonable amount of time) after purchase, buyer found structural defects in garage; latent defects; P has the burden of proof. Implied warranty is not created by agreement but are imposed by law as a matter of public policy. No privity required

          1. Limitations on implied warranty of quality; applies to new homes & builders

            1. reasonable amount of time

            2. P has the burden of proof

            3. Liability is only available for latent defects

 

  1. DEEDS

    1. Types

      1. GWD; warrants against all defects

      2. SD; bank ttee, not a full set of covenants

      3. QC, contains no warranties; no promises; still marketable title.

    2. Parts of Deeds.

      1. Identify parties; can be in buyer’s nickname. grantor must sign & date

      2. Signature of grantor

      3. Consideration

      4. need words of conveyance

      5. Legal Description; need proper identification, so someone can locate it.

        1. metes and bounds

        2. government survey

        3. plat

      6. Parol evidence (extrinsic evidence) maybe used to clarify an ambiguity.

      7. HABENDUM CLAUSE; Portion of the deed beginning with the words “ To have and to hold”. Explains the interests (f.s), lists covenants of title.

      8. No witnesses are necessary when signing the deed

      9. Now record to “perfect” your interest by recording at the deed of registers. Now a witness is required.

    3. Merger Doctrine

      1. The obligations imposed by a contract are DISCHARGED unless they are repeated in the deed.

        1. The contractual provisions are extinguished and replaced by whatever provisions are contained in the deed.

 

  1. DELIVERY OF DEED, compare with Gift; intent, delivery, acceptance

    1. Requirements for VALID delivery

      1. Delivered by the grantor

        1. Intent to transfer by words or conduct; voluntary; DELIVER AND INTENT CAN BE ONE, physical delivery is not required.

          1. Grantor must immediately give it to the grantee

            1. Delivered when A stops smoking. Condition drops out if condition is ORAL.

            2. Delivery cannot be canceled. Its irrevocable

            3. Estoppel even if there is no delivery. Good faith purchaser & reliance

          2. ROSENGRANT v. ROSENGRANT; delivery and retained control. Grantor did not INTEND to presently convey title. No delivery occurred.

            1. should have created a Revocable trust

        2. signed by grantor

        3. Witnessed at time of recording; acknowledged meaning it is signed in front of a notary public.

    2. Types of delivery

      1. OR-EE rebuttable PRESUMPTIONS of no delivery-who has possession may create a presumption of delivery of the deed.

        1. OR has possession; no presumption

        2. EE has possession, presumption

        3. 3rd party’s possession? OR’s neighbors; escrow, intent

        4. Deed was recorded, presumed valid

        5. Delivery is presumed to have taken place at the date of the OR’s signature (given immediately)

      2. Delivery subject to a condition; OR cannot change his mind

        1. EX. deed to take effect upon my death

        2. Oral conditions are invalid

        3. Cannot be subject to a life estate. No retained control

        4. Delivery to a third party--Escrow; doesn’t have to meet statute of frauds

          1. SWEENY v. SWEENY; a conditional delivery --ESCROW ACCT-can only be made by placing the deed in the hands of a 3rd person to be kept until the happening of the condition. NO Oral conditions. FUTURE INTEREST; NOT PRESENT

            1. Deed is not effective till 2nd delivery. But relates back to the first delivery

            2. Talk about date in which it is effective.

      3. RELATION BACK; 2nd delivery of first sale relates back to 1st delivery. Treat delivery as if it occurred at previous date. Mention date on which delivery is valid

          1. even if grantor dies while its in escrow; it relates back

 

  1. COVENANTS, compare with TI

    1. Present; EVICTION IS NOT NECESSARY

      1. Covenant of Seisin. the seller owns the property, the grantor has an indefeasible estate. Not breached by mere encumbrances. Eviction is not necessary.

        1. ROCKAFELLER v. GRAY; sheriffs deed is like a QCD

          1. Breached at time of conveyance. So successor cannot try to enforce his interest against the original OR. Q. did covenant of seisin run with the land? Subsequent grantee can only recover what first grantee could recover.

        2. ESTOPPEL BY DEED OR DOCTRINE OF AFTER ACQUIRED DEED

          1. A to B W.D but A didn’t own property. 6months later A gets title to property. B now owns the property, COMPARE WITH RELATION BACK

            1. Relation back deals with multiple deliveries, while estoppel deals with an ineffective (unmarketable) first delivery

      2. Covenant of right to convey. seller has the right to convey, TTEE HAS NO RIGHT TO COVEY

      3. Covenant against encumbrances. promise that there are no encumbrances against the property. Right that diminishes value but doesn’t challenge seisin. Mortgage, liens, easement or servitudes

        1. FRIMBERGER v. ANZELLOTTI; a latent violation is not an encumbrance; a title search w/have discovered the condition. A latent violation of a state land use violation that do not appear on land records-that are unknown to the seller of the property do not constitute an encumbrance. No title problems, only land problems. Tried to recover costs to fill in the bulkhead.

 

      1. There is no covenant that the property is fit for its intended use. Only seisin, rt to convey, and encumbrance.

    1. Future first two are almost the same EVICTION IS NECESSARY

      1. Covenant of General Warranty. Seller asserts that title is good and he will defend at his own costs. Continuous in nature and is breached whenever a rightful adverse claim arises. Could occur many different times. Breached when someone tries to evict—statute of limitations starts to run at date of eviction.

      2. Covenant against further encumbrance. Seller will perform any acts necessary to perfect buyer’s title to the property.

      3. Covenant of Quiet Enjoyment. grantee will be entitled to continuing possession of the land in the future. No third party will claim an interest to disturb grantee. This doesn’t guarantee a perfect title. NO INTERFERENCE WITH JOY OF PROPERTY

        1. Requires constructive or actual eviction or a threat of eviction. Must be disturbed in your possession of the premises

        2. BROWN v. LOBER; 3rd party claimed mineral rights. Right to enter property for minerals and tear up land.

    2. Statute of limitations

      1. 1st reason to distinguish between present and future covenants; issue is the S of L

      2. 2nd reason for the distinction is whether the covenant is enforceable by subsequent grantees. That is does it run with the land.

      3. Present

        1. S of L runs at the time of conveyance

        2. Does not run with the land

      4. Future

        1. S of L starts only when an eviction occurs (future)

        2. run with the land

    3. OUSTER

      1. A---------B WD If C has been ousted; ‘B’ has no liability to C. ‘A’ has liability to ‘C’ for the B---------C qc extent of damages

 

      1. A---------B wd If C is ousted; B is liable to C. B cannot get indemnity from A

      2. B---------C wd

 

  1. MORTGAGE

    1. Note (bond) is the buyer’s personal promise to make the repayment.

    2. Mortgage is a document, which gives the lender the right to have the property sold. The mortgage is recorded.

      1. ASSUMED MORTGAGE; no personal liability by purchaser

      2. SUBJECT TO MORTGAGE; buyer assume liability

    3. Lender fiduciary duty:

      1. MURPHY v. FINANCIAL SERVICES; lenders duty upon foreclosure is to act in good faith and with due diligence to try to recapture the homeowners equity.

    4. Land K

      1. BEAN v. WALKER ; Land K where buyer defaulted on loan. Court treats land K like a mortgage. Trend is to imply same protection as mortgage EQUITY OF REDEMPTION

        1. FORFEITURE; may be an appropriate result where the vendee abandons the property or absconds or where he has paid a minimal sum on the K and upon default seeks to retain possession while the vendor is paying taxes & insurance.

        2. Brief breach violates K; Grace period if paid ½ of K; you get to make back pmts.

 

  1. TYPES OF RECORDING ACTS give the purchaser a way to check whether there has been an earlier transaction in the property inconsistent with his own

    1. CMN LAW; no recording acct. “FIRST IN TIME”

    2. Race; record first even if you have notice.

    3. Notice; regardless of who records first (race), must buy without notice

    4. Race/notice; MI; without notice and record first.

    5. Mechanics

      1. the grantee deposits the deed at the recording office. The recorder stamps the date and time of the deposit and then places a photo copy of the deed in a chronological book containing all recorded deeds, the deeds are then indexed. OR & EE index

    6. RECORDING SYSTEM;

      1. PURPOSE IS TO GIVE NOTICE

        1. Must identify precisely so someone can locate it

        2. IMPROPERLY INDEXED; will not prevent constructive notice. Duty is on B to inspect & investigate. B is subject to loss

        3. PAROLE EVIDENCE; maybe used to clarify an ambiguity. (if no city is named)

      2. RECORDING/NOTICE

        1. MESSERSMITH v. SMITH Recording doesn’t make an invalid deed valid. Improperly executed (acknowledgement); An improperly acknowledged deed is not capable of being recorded. DEFECT IN EXECUTION

      3. INDEXES/ DESCRIPTION

        1. LUTHI v. EVANS; (Mother Hubard clause)--describes the property as “all of the grantors property in a certain county” This doesn’t describe specific property & doesn’t give constructive notice to subsequent purchaser. DEED CANNOT BE INDEXED

        2. ORR v. BYERS; the doctrine of IDEM SONANS states that although a persons name is inaccurately written, the identity if such a person will be presumed from similarity of sound between the correct pronunciation and the pronunciation as written

        3. This rule is inapplicable where the written name is material

        4. This rule is applicable for identification but not to give constructive notice.

    7. Person’s protected by the recording acts :BFP; heirs, & creditors

      1. in MI

        1. The whole purpose of a BFP is that he gets the benefit of the recording act; that is he takes priority over an earlier unrecorded conveyance only if he give value for his interest.

        2. BFP (this is an equitable concept) if there are two innocent subsequent purchasers from the same grantor for land, courts will side with who paid the higher consideration.

          1. must be a subsequent buyer

          2. good faith, that is without notice, actual or inquiry

          3. pay valuable consideration, don’t need to pay mkt. value

            1. Paying less than market value doesn’t effect BFP status

            2. Must have made substantial payments before any notice of a prior conveyance.

            3. Installment contracts. O to A then O to B. B starts making payments then ‘A’ records while ‘B’ continues to make payments. ‘B’ is protected as a BFP as to the payments made before and after ‘A’s recording, as long as the payments are made before ‘B’ received actual notice of the prior conveyance to ‘B’

            4. Not a BFP if:

              1. received property by Gift

              2. Taking property as a security interest, but if property is conveyed as a satisfaction of debt then its OK.

 

 

    1. CHAIN OF TITLE PROBLEMS

      1. BOARD OF EDU v. HUGHES; deed became effective when D filled in his name as grantee Prior unrecorded deeds. Gap in title—“WILD DEED”

      2. GUILLETTE v. DALY; are unmentioned subdivision restrictions within the chain of title? D’s deed mentioned/referred to a recorded subdivision, but the restrictions were not mentioned. RESTRICTIONS RAN WITH LAND

      3. DANIELS v. ANDERSON; a buyer who, receives notice of an outstanding interest, & pays consideration at his peril with respect to the holder of the outstanding interest. Given oral notice while making installment payments. NOT A BFP (rec’d notice)

      4. LEWIS; Can’t require buyer to check title b4 every pmt. Lis pendens b4 final payment was made.

 

    1. NOTICE OF SUBSEQUENT CLAIMS; if you receive notice in any of these ways then you will not be protected by the recording statute.

      1. Notice for a BFP matters at time consideration is given. @ TIME CONSIDERATION IS GIVEN.

      2. Actual Notice.; someone possesses the property

      3. Record Notice. The mere fact that a deed is recorded is adequate that a reasonable searcher would find it.

        1. EXCEPTION a defective document; i.e. improperly executed (e.g. no signature or no witness at recording)without a witness does not give record notice

        2. MESSERSMITH

      4. Inquiry notice

        1. HARPER v. PARADISE; 2nd deed referenced 1st deed (WHICH WAS UNRECORDED) and 1st deed was lost. The 2nd deed gave constructive notice to all other deeds to which it refers.

        2. Has neither actual nor record notice of a prior unrecorded conveyance?

        3. Requirement

          1. Purchasers are in possession of facts, which would lead a reasonable person to make an investigation.

        4. Inquiry notice imposes a duty on the grantee to inquiry of documents which are referred to by the document in the chain of title

        5. A BFP must make inquiry as to provisions contained in the deed

        6. The taker of property is charged with notice if a common restriction is apparent from inspection of the neighborhood. E.g. all houses are set back 50 ft.

      5. MARKETABLE TITLE ACTS

        1. HEIFNER v. BRADFORD; it is a S of L in that it requires a claim to be asserted w/in a reasonable time (40yrs) Root of Title

      6. INTERESTS THAT ARE RECORDABLE

        1. FS

        2. restrictive covenants

        3. liens/encumbrances

      7. INTERESTS THAT ARE NOT RECORDABLE:

        1. AP

        2. Easement by implication or necessity

        3. short leases

 

  1. TITLE INSURANCE (abstract of title) to assure you’re getting valid title.

 

    1. What it covers; protect the buyer against:

      1. Forgery of the deed in the chain

      2. Fraudulent misrepresentation of marital status by a grantor--where spouse has a DOWER right

      3. usually covers litigation costs in defending

      4. Only what is shown on record, covers attacks on title

      5. TI has a maximum liability

      6. WARRANTIES COVER MORE

    2. What it doesn’t cover--TALK ABOUT HOW THIS EFFECTS MARKETABILITY ON EXAM

      1. facts that a survey would show; encroachments TI is not a substitute for a survey

        1. WALKER ROGGE v. CHELSA; bought property, he thought he bought 18 acres.

      2. adverse possession, buyer has to inspect the property

      3. Doesn’t cover value of the property;

        1. LICK MILL v. CHICAGO TITLE; cost to remove hazardous waste. Compare the marketability of Title with the Marketability of Land. Compare with the implied warranty of habitability & duty to disclose.

    3. TI v Warranties

      1. These are warranties

        1. Run with the assignees

        2. apply to everything not under the record

        3. only promised to defend against certain attacks on title

    4. INSURANCE v WD

      1. TI Covers only that title

        1. WD covers all defects in chain

      2. TI has exceptions

        1. WD has no exceptions

      3. TI No eviction required

        1. WD Covenant of quiet enjoyment requires eviction

      4. TI is good to purchasers

        1. WD runs with land

      5. TI is good for purchase price

        1. WD Good for purchase price plus inflation

      6. TI don’t need eviction

        1. Need eviction

 

  1. NUISANCE

    1. R§822 requirements to assert a nuisance claim. Need all three to asset a nuisance claim

      1. must have possessory ownership interest--REMAINERMAN CANNOT BRING ACTION (present interest) OWNERSHIP

      2. interference must be substantial (injury), VALUE, INJUNCTION

      3. determine if the nuisance is intentional or unintentional (usually determines the remedy)

        1. BALANCE THE UTILITY. IF UTILITY OUTWEIGHTS THE INJURY THEN THERE IS NUISANCE AT ALL.

          1. MORGAN v. HIGH PENN; negligence is not required. Private nuisance emitting gases. Injunction sought.

    2. Is an interference with a person’s right to quiet enjoyment of his land.

      1. TYPES of invasions

        1. Particles; sight; touch;

        2. Noise;ears

        3. Smell ; nose;

    3. Two types of Nuisances:

      1. Private ;

        1. Can be brought by a group of people

 

        1. There is a substantial interference with the P’s use and enjoyment of his land caused by the D

        2. D acted intentionally

          1. there is substantial harm and it is unreasonable

              1. extent of harm

              2. character of harm

              3. nature of harm; look to health reasons

        3. OR unintentionally and negligently

          1. look to the gravity of the harm and the D’s conduct

        4. Weighing the harm

            1. R. §827 what is reasonable? (Utilitarian test)

              1. weighing the harm

                1. extent and character of harm

                2. social value of land invaded--P’s use of the land

                3. burden on P to correct harm

        5. Nuisance per se (at law) Unlawfully operated business

          1. is an act, occupation or structure which is a nuisance at all times and under all circumstances regardless of location

            1. EX. storing atomic wastes in a residential area

            2. A business that operates lawfully in NEVER a nuisance per se

        6. Nuisance per accidens (nuisance in fact)

          1. Applies to business that are run lawfully

          2. it becomes a nuisance by reason of its location

      1. Public:

        1. affects the public as a whole

        2. it may be a crime

        3. if its use is permitted by statute or ordinance then it is not a public nuisance

    1. TRESPASS v. NUISANCE

      1. Nuisance involves interference with quiet enjoyment of the land. EITHER INTENIONAL OR UNINT’L

      2. Trespass involves interference with the right to possess the land—INTENTIONAL

    2. REMEDIES

      1. 2 types HOW TO BALANCE THE EQUITIES (aka COMPARATIVE INJURY) PURPOSE IS TO AVOID THE GREATER HARM. Comparative hardship.

        1. Injunctions

        2. Damages

          1. BOOMER v. ATLANTIC; cement plant; particles & vibration. Homeowner is compensated for low home value, the new owner pays lower price for home. MONEY DAMAGES, NO INJUNCTION.

      2. Which remedy to use?

        1. Courts weigh the value of the offending conduct

          1. is the offending conduct good for social value?

          2. is it impractical to prevent the invasion

          3. economic considerations to offender/business owner; LOSS OF JOBS v LOSS TO PRIVATE OWNER

          4. damages may then be appropriate

      3. Rule of Necessity BALANCING THE EQUITIES; money damages vs. equitable injunction

        1. Courts are favorable to residential property owners, so they continue to live there.

        2. ESTANCIAS DALLAS; cost to replace air conditioner was high (apt bldg.) EXTERNALIZING COST –PUSH OFF COSTS TO THE COMMUNITY. 200K TO REPAIR. 10K DECREASE IN HOME.

      4. Coming to the nuisance

        1. P’s maybe required to indemnify the D if he has to move or correct the offending conduct. SPUR v. DEL WEB; business vs. business nuisance; & came to nuisance--knowing and willful encroachment, this usually prohibits an injunction. Indemnify for him to move

        2. Public nuisance, not tied to the land

          1. R§ 822

            1. ownership

            2. injury; injurious to public health

            3. int’l & unreasonable

        3. This is not an absolute defense

        4. A P that comes to the nuisance usually cannot get an injunction against the prior use because he knows of the nuisance and accepts the area as is.

          1. detriment to P was foreseeable

            1. -severe

            2. intentional & unreasonable

 

  1. EASEMENTS, no consideration is need...

    1. TYPES

      1. Affirmative easement ; permission

      2. Negative easement; prohibative

        1. can have both at the same time

      3. Appurtenant--benefits landowner

        1. Benefit runs with the land, Dominant testate and serviant estate.

        2. If the dominant estate is subdivided, the easement appurtenant attaches to each separate parcel unless the extension would over burden the servient estate.

        3. TEST; for an easement to be appurtenant, its benefit must be tied to a particular piece of land(dominant tenement)

        4. A to B with E-AP; B to C with no mention of E-AP, E-AP always passes with the dominant estate.

        5. MERGER, If the dominant estate purchases the servient estate, then the easement is terminated by merger.

      4. Easement in gross--easement to a person, not land. benefits person; not tied to any particular parcel

        1. benefit does not run with the land; no benefited land; TEST, not tied to the land

        2. not transferable

        3. servient land is burdened and there is no benefited land

        4. EX. Utility right of way/billboards on private land (for PROFIT)

      5. Compare Easement/Fee simple interest/license/profit (easement plus use)

    2. DOMINANT OR SERVIENT ESTATE

    3. Easement is not a license

      1. easement is a privilege to use the land of another

        1. not revocable

        2. is an interest in land

      2. license

        1. *revocable* at the will of the licensor

        2. is a permission to enter land

        3. Not an interest in land

      3. PROFIT

        1. Interest in land

        2. Consideration is on necessary

        3. Either appurtenant or in gross

        4. Terminated in the same way as easements

        5. Freely transferable

    4. 4 Ways to CREATE an Easement:

      1. Express Easement

        1. Conveyance (GRANT) SELLER GIVES

        2. Reservation SELLER RETAINS FOR HIMSELF

        3. Subject to the statute of frauds

        4. Reservation; give land in FS but reserve an easement

          1. WILLARD v. FIRST CHURCH; Can create an easement/reservation in favor of a stranger. Ct gave effect to the intent of the grantor. RESERVATION IN FAVOR OF A STRANGER. 3rd PARTY. Express appurtenant easement

        5. Grant; grant an easement but keep the land

        6. Statute of frauds; express easements must be in writing

        7. The language reserves the SCOPE of the easement: grantor usually states: “I reserve for myself”

          1. BROWN v. VOS; ‘A’ sold a parcel to ‘B’; ‘B’ bought appurtenant parcel and tried to stretch the easement to cover the newly acquired parcel. Road cannot be used to benefit lot C. That would be an expansion; misuse. Balance the equities. A parcel that is landlocked v. overburdens easement. OUTSIDE SCOPE

          2. ASSIGNABILITY OF AN EASEMENT IN GROSS;

            1. MILLER v. LUTHERAN CONFERENCE; limiting scope by not permitting assignability. unless it is commercial. Act as if there is one stock.

      2. Easement by implication

        1. Implied Grant; dominant estate is conveyed to grantee

        2. Implied reservation; dominant estate is retained by the grantor.

        3. does not require express writing of statute of frauds

        4. The extent of necessity determines the scope

        5. Parcel is landlocked.

          1. B askes for permission from A for easement. First Q. Were A & B formerly one?

          2. B bought from A a landlocked parcel, road cuts through A, can a substitute road be obtained without an unreasonable expense?

        6. required by public policy

        7. Requirements-don’t have an implied easement unless you prove these three factors at the time of severance. Each severance is taken separately & sequentially

          1. Unity of Title--Common Grantor.

          2. Easement is reasonably necessary to the enjoyment of the dominant tenement. “Important”

          3. QUASI EASEMENT, preexisting use on the property. When a person uses a portion of his estate for the benefit of the remainder of his estate; it looks like an easement, but you cannot grant an easement to yourself.

            1. Same owner of land

            2. Becomes an easement by implication upon sale of land where it is apparent buyer can still use the easement.

            3. EXAM CASE Van SANDT v. ROYSTER ; sewer across the parcels

      3. Easement by Estoppel---NOT IN MICH

        1. HOLBROOK v. TAYLOR ; ‘B’ could not revoke the License to ‘A’ because ;A’ had spent money on improving the roadway & depended on his using it. ‘B’ was Estopped. The license became irrevocable when the license is coupled with an interest. ‘A’ relied on the license to his detriment. HAND doesn’t like this case. D was estopped from revoking the license. LICENSE TURNED INTO ESTOPPEL. IT BECAME IRREVOCABLE. A LICENSE COUPLED WITH AN INTEREST

          1. Q. Did the owner of the dominant estate unreasonably expand use of the easement?

          2. Necessity

          3. Overburdened?

          4. Expense to landowner?

          5. Unjust enrichment? Reliance?

          6. Alternative route?

      4. Easement by necessity

        1. Requirements

          1. There was unity of ownership (common grantor) of the dominant and serviant estates.

          2. The easement is a necessity not a mere convenience; this is important to the enjoyment of the parcel.

            1. NO QUASI EASEMENT

            2. Intent to make a grant or reservation

            3. Courts look for stricter necessity. Look at consideration; was it priced like a piece of land that is land locked? NECESSITY AT TIME OF SUBDIVISION.

            4. Could another road be built?

          3. necessity must have existed at the time of severance of the two estates

            1. If there are two roads & one cuts through the front of servient estate, the necessity to use the one in the front must be absolutely necessary for enjoyment.

              1. OTHEN v. ROSIER; ‘A’ sold prop to ‘B’ & some to ‘C’. ‘B; had to cross over ‘C’s property to get to road. ‘B’s tracks were eroding ‘C’s land into mud. ‘C’ wanted an injunction. ‘A’ had F.S title to both parcels of land, so no necessity existed to ‘B’s land

        2. No quasi easement as in “implication”

        3. Unlike easement by implication, there does not have to have been a prior use. The easement does not have to have been used prior to the time the two parcels were split up

        4. SCOPE; depends on the necessity

          1. EX. landlocked parcels, so that access to a public road can only be gained with right of way over adjoining property

    5. Easement by prescription/ principles of adverse possession

      1. Scope is limited to its original use; cannot move from one side to another.

      2. Character & use during the period determine the scope.

      3. Requirements--A Taking

        1. open

        2. adverse/hostile, without consent/permission

        3. actual

        4. continuous/uninterrupted; more than infrequent

        5. exclusive

      4. MATHEWS v. BAY HEAD; PUBLIC TRUST DOCTRINE; state owns land flowed by title water. Public use includes navigation, fishing, recreational uses. Right to cross privately owned dry sand beaches and right to sunbathe & enjoy recreational activities. The public interest is satisfied as long as there is reasonable access to the sea. D’s activities paralleled those of a municipally and were quasi-public in nature

      5. There can be tacking on the dominant tenement

      6. Easement of light and air cannot be gained by prescription because the owner of the dominant tenement merely looks out over the former’s property, rather than trespassing upon it.

      7. Statute of limitations

        1. statute starts to run the owner of the servient tenement gains a cause of action against the owner of the dominant tenement

      8. Use right but not a possessary right. Notice

    6. TERMINATION OF AN EASEMENT

      1. Time period expires; ex. 10yrs; life time; as long as a bldg. stands

      2. Property has been destroyed, FIRE

      3. End of necessity for which it was created

      4. Forfeiture through abuse, OVERBURDENED

      5. Merger of the dominant tenement and the serviant tenement.

 

      1. BY OPERATION OF LAW

        1. Termination by abandonment

          1. need intent plus conduct

            1. words alone are insufficient, termination by release is not enough. Need a writing

            2. intent to abandon

            3. Takes action/conduct manifesting intent, “prevent further use of easement”

          2. PRESAULT v. US; property was taken for RR tracks. Were the uses too different? Not foreseeable? If the easement was abandoned and beyond the scope then the new trail was a taking and the P must be compensated. Like the Public Trust doctrine

        2. Lost by prescription; SERVIENT ESTATE BLOCKS OFF ENTERANCE FOR STATUTORY PERIOD

        3. Estoppel, reasonable reliance

        4. Recording Act; BFP acquires property free of an easement if the easement is not recorded.

        5. TERMINATION BY GRANTOR

          1. Servient estate can only terminate the easement upon:

            1. Impermissive use

            2. Excessive use

            3. Cannot arbitrarily revoke easement

    1. TRANSFER OF THE BURDEN

      1. burden of the easement runs with the land

    2. TRANSFER OF THE BENEFIT

      1. benefit runs with the land if the easement is appurtenant; otherwise no privity

 

 

 

 

 

  1. REAL COVENANTS

    1. K only affects the parties. Covenant stays with the land

    2. An easement is a grant of someone’s interest in land, while a covenant is a promise as to the use of land

    3. Only difference between an equitable servitude and a covenant is the remedy

    4. EASEMENT IS A POSITIVE

    5. COVENANTS IS A NEGITIVE BOTH ARE SERVITUDES

      1. Covenants are enforced under K law (money damages)

      2. Covenant is bound to the LAND. Whereas a K is bound to the person(s)

      3. It’s a negative.

      4. Is a K between two parties and has the additional quality of binding against the one who later buys the promisor’s land, and/or enforceable by one who later buys the promisee’s land

      5. Legal relief is money damages, not equitable relief.

      6. Must be in writing.

      7. Promise to land; not an interest in land.

    6. WHEN DO COVENANTS RUN WITH THE LAND? (when does the burdens and benefits run?)

      1. Look at:

        1. intent

        2. TOUCH & CONCERN—deals with matters concerning land; For the burden to run, the BURDEN must touch and concern the promisor’s land. For the BENEFIT to run, the benefit must touch the and concern the promisee’s land

          1. RUNNING OF THE BENEFIT: promises not to demolish, pay homeowners assoc. fees

            1. BURDEN IN GROSS: Benefit can run even if the burden does not for EE’s land. Ex. COVENANT NOT TO COMPETE WITHIN 5 MILES

          2. RUNNING OF THE BURDEN:

            1. Promise to pay rent, taxes, or insurance

            2. Promise to repair or improve the land

        3. & PRIVITY between the OR & EE.

          1. HORIZONTAL PRIVITY between original OR &EE.

            1. Running of the BURDEN: The original promisor and promisee MUST have some land-transfer relationship.

            2. Running of the BENEFIT: same as above. Must have horizontal privity for subsequent purchasers to enforce covenant.

              1. PROBLEMS

                1. A subdivider creates a homeowner’s association to collect fees (part of the covenant) for maintenance. The association owns no property, and thus no privity. Possible ways to deal with:

                  1. Agency theory: association is acting on subdividers behalf

                  2. Convey whole tract to association and let it sell the subdivided tracts

                  3. Convey a portion of the land to the association (the streets or a small park area.

                2. NEPONSIT; no horizontal privity. Grantor assigned benefit to the homeowner’s assoc.—not in privity because they don’t have actual ownership. There is privity in substance not form. The HOA is exists for the purposes FBO of the homeowners rights.

          2. VERTICAL PRIVITY between OR & successor . If A leases to B and B subleases to C, there is not vertical privity between A & C because C doesn’t have full interest

            1. Running of the BURDEN: Successor to the burdened estate OR must own entire estate in F.S. Not as a lessee.

            2. Running of the BENEFIT: The benefit may be enforced by anyone who has taken possession of the promisEEs property with the promisee’s permission

      2. TERMINATION OF A REAL COVENANT

        1. All parties agree; WESTERN LAND; everyone within the subdivision has to sign a release.

        2. Time limit

    7. Elements of Covenant at Law, money damages

      1. Intent for promise to run with land

      2. Promise touches and concerns land

      3. Privity, land transfer relationship

    8. Elements of Covenant at Equity (Equitable Servitude) injunction, specific performance. Equitable servitude against the burdened land.

    9. EQUITABLE SERVITUDES, may or may not run with the land

      1. Intent to run. intent by the parties to attach the agreement to the land with the land. EX monthly payment of rent

      2. Touch and concern:

      3. Notice;

        1. Need actual or constructive notice to enforce agreement against subsequent purchaser. Privity is not required. Easy to bind assignee’s

        2. Actual: Successor was verbally told to horizontal agreement between OR & EE. Successor knew about restriction regardless if the restriction is not recorded anywhere.

        3. Constructive: restriction is recorded.

        4. TULK; covenant not to build on property. If you purchase the property with notice of the covenant then cannot change binding covenant. Enforceable against new owner.

      4. Creation of Covenant

        1. Common grantor

        2. Common scheme—shows grantors intent

        3. EXTENT OF INQUIRY

          1. SANBORN; D tried to build a gas station on land—no negative easement on his property. All other property owners in subdivision have negative easement--Residential homes. D had inquiry notice. Reciprocal easements that are conveyed by a common grantor run with the land. Once on notice a person is required to inspect deeds. The extent may be less when the homes are all independent from one another and the deeds are unrelated. Sanborn read strictly may require a reading of every deed.

        4. Reciprocal Negative Easement

      5. SCOPE OF COVENANTS/SERVITUDES

        1. SHELLY; 14th amendment violation against STATE; racial discrimination forbidding blacks to buy homes.

        2. NAHRSTEDT; pet restriction. Condo assoc. restrictions sound like a government restrictions but are not within 1st amend (US) or 14th (states)

      6. TERMINATION OF SERVITUDE

        1. Changing Condition, conditions have altered the character of the neighborhood

          1. RICK; neighborhood conditions changed and P was not permitted to develop land

        2. No previous enforcement against others

        3.  

 

  1. EMINENT DOMAIN

    1. 5TH amendment states: there shall not a taking of property without just compensation.

      1. HAWAII HOUSING; any action where there is a public benefit to be derived, even if private benefit is substantial, public benefit I s enough to make eminent domain allowable. Hawii takes land to break-up land ownership by old families and sell to new owners

      2. POLETOWN; Gm to displace 1500 homes to create a plant and create jobs—this was its public purpose. Benefit cannot be private.

 

  1. ZONING

    1. Permits only certain types of uses in certain areas. To structure the community

    2. EXCEPTIONS TO ZONING

      1. Single family zoned area may allow schools, churches because this is consistent with land use

      2. Variances for physical differences in property

 

 

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