mere permission to use or occupy land

• revocable at will
• cannot be transferred, devised, or inherited
• ordinarily temporary and limited to specific purposes
• ex. Dinner guest, plumber

a permanent irrevocable promise

• to use a path, road driveway or physically place something across grantor's (promise-maker's) land
• can be obtained by persons who wish to cross land, wish to run train across the land, or by utility company who wants to run wires or pipes across land

A permanent irrevocable promise not to do something on one's own land

• can also be enforced as a real covenant and/or equitable servitude
• Usually sough by a person who stands to benefit by another person's agreement no to do something on their own land
• Ex. no building something that blocks other person's view of the ocean

• burden- future owners of burdened parcel will continue to have an obligation to allow easement or covenant to continue
• benefit- future owners who have right to enforce the covenant 

when with knowledge and acquiescence of a licensor, a licensee improves his or her land at considerable expense, and there is no other location over which a roadway could reasonably be built to provide an outlet for the licensee's land

• AKA irrevocable license 

licensor engages in a course of conduct that gave the licensee the implied assurance that license would not be terminated, and the licensee made investments in reliance on that conduct 

• solution
  1. allow licensee continued use of the land for a reasonable period of time
  2. compensate licensee for the value of improvements made in reliance on the assurances 

created when:

1. Dominant and servient parcels were once unified because owned by single person entity;
2. before conveyance that broke up common ownership, the owner used part of the unified parcel (now claimed in easement) for the benefit of another part of the unified parcel
3. This use was apparent and obvious and continuous and apparent
4. The claimed easement is necessary to the enjoyment of the dominant parcel
   • reasonably necessary no absolutely necessary
   • the longer the easement has been in use the more likely the court finds it necessary 

Elements

1. Grantor Conveys a parcel that has no outlet to highway except over the remaining lands of the grantor or over the land of strangers
2. necessary to prevent parcel from being landlocked
   • Absoulutely rather reasonably necessary
3. Parties did not expressly agree to land lock parcel

1. right to prevent the servient parcel from undermining lateral support of a building on the dominant parcel
2. servient parcel cant block flow light to dominant parcel
3. flow of air
4. artificial stream

1. right to prevent the servient parcel from undermining lateral support of a building on the dominant parcel
2. servient parcel cant block flow light to dominant parcel
3. flow of air
4. artificial stream
5. prevent the development of land for environmental purposes
6. prevent the destruction of historically or architecturally important buildings 
7. blocking sunlight to solar panels

1. the easement is in writing
   • satisfied by deed or document that references prior deed that contains the easement
2. the original grantor who created the easement intended the easement to run with the land
3. the subsequent purchaser had notice of the easement at the time they purchased the servient parcel 
   • actual, constructive or inquiry notice
     • constructive notice- should have known because easement was somewhere in the chain of title
     • inquiry notice- should have asked because there were visible signs of an easement (ex. road, telephone poles, cable lines, etc.)

• grantor intended easement for a person rather than a parcel of land that is not the dominant parcel
• generally disfavored 
  • if it is ambiguous court will rule it was an easement appurtenant 

1. Release- termination by agreement in writing
2. Expiration- easement has settled termination date
3. Merger- the dominant and servient lands come under a single owner
4. Abandonment- the owner of the easement, by his or her conduct, indicated an intent to abandon the easement
5. Frustration of Purpose- the easement has become impossible to use or obsolete 

1. writing
   • a promise in the deed transferring property
   • the promise is contained in a  lease
   • the promise is contained in a declaration of restrictions filed by a developer 
   • representation in sales or rental literature do not constitute a writing
2. notice when the current owner purchased the property 
   • actual, constructive, or inquiry
3. original party intended promise would run with the land
   • the covenant made to grantor or grantee and his or her heirs
   • intended to bind future owners
   • the covenant intended to run with the land
4. The restriction  touches and concerns both the benefitted and burdened land
5. Horizontal and vertical privity 

same as real covenant minus privity 

1. writing
   • a promise in the deed transferring property
   • the promise is contained in a  lease
   • the promise is contained in a declaration of restrictions filed by a developer 
   • representation in sales or rental literature do not constitute a writing
2. notice when the current owner purchased the property
   • actual, constructive, or inquiry
3. original party intended promise would run with the land
   • the covenant made to grantor or grantee and his or her heirs
   • intended to bind future owners
   • the covenant intended to run with the land
4. The restriction  touches and concerns both the benefitted and burdened land

• courts generally prefer damages over injunctive relief
• only issue injunctive relief if justice truly requires it

• If a covenant not to compete is reasonable it should be enforced under all circumstances
• if a covenant not to compete is unreasonable a court can refuse to enforce on public policy grounds

1. parties that made the original promise both had a legal property interest in the parcel of land burdened by the promise both agreeing not to do something on the parcel
2. The same person owns two parcels decides to sell OR lease one of them and the promise contained in the deed or lease burdens one of the parcels for the benefit of the other parcel

• when burdened land moves from the original promise-maker, the grantor not retain any interest in the burdened land 
• happens when the grantor conveys entire interest
• If grantor conveys less than the interest than that the person they are conveying that interest 

• The promise was intended to
• legitimately dos benefit current and future owners of the dominant estate at the expense of the servient estate

Implied Reciprocal Negative Servitude

Fact Pattern 

1. in the beginning, there was a single original developer who owned all of the parcels
2. the developer intent was to create a common scheme or a  general plan of development to benefit himself and all purchaser of lost within the scope of the development area
3. all of the lots were intended to reciprocally benefitted and/or burdened by the promise
4. the person against who the promise is being enforced received notice of the promise
   • actual, constructive, or inquiry

1. There exists a recorded play or declaration of restrictions showing the common scheme or general plan and listing all restrictions
2. There are covenants stating the disputed restrictions included in more than half of the recorded deeds in the development area

• all the house in a subdivision are so similar that a reasonable person would have inquired as to whether the subdivision started out as a common scheme, and if more than half of the recorded deeds in the subdivision describe the common scheme and the restriction at issue

• permits a court to terminate a covenant if the conditions have changed so drastically inside the neighborhood restricted by the covenants that enforcement will be of no substantial benefit to the dominant estate
  • difficult test to meet
  • change must be so radical that changes have defeated the essential purpose of the covenant rendering covenant valueless to the dominant estate

• permits court to terminate covenant if the dominant estate has long ceased enforcing the covenant
  • the dominant estate has tolerated or failed to object to violations of the covenant over a substantial period of time

• permits termination of a covenant if the hardship to the burdened estate is larger by a considerable magnitude than the benefit to the benefitted or (dominant estate). 
• Fact pattern
  • big burden small benefit
  • benefit and burden are equally large or equally small doctrine does not apply 

• created when the developer of subdivision files a declaration creating it before the sale of the first lot
• lot/unit owners borrow money to purchase their own lots/units separately, but all lot/unit owners also co-own the common areas as TICs
• HOA board typically collects dues and fees for upkeep of common areas, enforces covenants, and promulgates rules applicable to the lots/units in the association 

• The entire building is owned by a single non-profit corporation
• Once approved to join community he/she must buy in by purchasing shares in the non-profit corporation and lease a unit from the corporation 
• if any individual shareholder fails to make his/her payment then the owners in co-op must make up the difference to avoid foreclosure

• a non-profit organization designed to allow lower-income individuals and families to purchase real estate.
• trust buys and holds title to property and leases building (but not the land) to low-income purchasers for below market price
• purchaser cannot sublease building or unit at market rate
  • can only sell or sublease at purchase rate adjusted for inflation 

• Pro: freedom to create a form of property ownership that are tailored to individual interests 
• Con: allow owners to engage in exclusionary and sometimes unlawful discriminatory conduct
  • oppressive micromanagement of CIC boards infringing on free-form control of property

• Any change to a covenant in CIC must pass a reasonableness test
  • reasonableness is a question of fact, not law

• prohibits courts along with other public actors from engaging in  "state action" to enforce racially restrictive (or otherwise unconstitutional) covenants on private land
• prevents racially restrictive covenants on public land or land deemed to be of public character 

• present when a court actively enforces a racially restrictive covenant, because in such a case the court is bringing the full coercive power of the government to deny property rights on the basis of race
  • actively pressed into operation by a government actor

1. Direct restraint on alienation
2. Grantor Consent Clauses
3. Rights to first refusal
4. Affordable housing restriction
5. Restrictions on leasing

• a total restraint on alienation of a fee simple is when a deed categorically forbids the sale of a fee simple, 
• OR in covenant, a grantee promises never to sell the property
• total restraints of alienation of a fee simple are generally void and unenforceable 

• conditional restraint of alienation of a fee simple is when a deed or covenant places some condition on the ability to sell the property
• Upheld if it satisfies an applicable test
  1. upheld when property granted to charity unless invalidating restraint is necessary and in the best interest of the charity 
  2. if not a charity upheld if it is reasonable 
     • considered unreasonable if it makes sale of the property so difficult that as a practical matter it is akin to a total restraint on alienation 

• is a covenant in a deed that states the grantee must get the permission of the grantor before alienating the property
• generally void and unenforceable 

• Reasonableness is a question of fact
• Test for reasonableness
  1. whether the reason for exercising the right of first refusal was rationally related to the purposes of the association
  2. Whether the exercise of the right was fair and non-discriminatory

• A covenant that states the property may be sold or leased below market to a low-income person
• generally valid and enforceable

• the covenant should be enforced according to stated terms if it is consistent with the intent of the original parties to the covenant 
• a covenant is unenforceable if enforcing a particular case would be:
  • contrary to a stated public policy,
  • the social harms that would flow from enforcing the covenant outweigh its benefits
  • state legislation or judicial decisions

• enforceable as long as it is reasonable
• An anti-competitive covenant is reasonable if:
  • reasonably limited in time, space, product line, and serves the public purpose of facilitating orderly and harmonious development of commercial use

• constitution for condo or HOA
• rules and laws passed are comparable to statutes
• decisions comparable to court rulings
• courts interpret powers and provisions in declaration broadly and in favor of the exercise of power
• Rules and by-laws are legally valid if they reasonably support a valid objective
  • when evaluating court balances the importance of the rule's objective against the importance of the interest infringed upon

Declaration of Condominium/HOA 

Restrictions

• if rule by law seriously curtails an important civil liberty (i.e. freedom of expression) or presents a significant burden on an important interest (i.e. how to live your life) courts will look at the rule with more suspicion
• A rule that infringes on an important interest and governs a portion or use of property that does not affect others risks being stuck down (ex. above ground swimming pool case)
• A rule that infringes on an important interest and governs a portion or use of property that affects others, is more likely to be upheld (ex. religious services case)
• A rule that does not infringe on an important interest and governs a portion or use of property that affects others is likely to be upheld (ex. roof antennae case) 

1. Term of Years
2. Periodic Tenancy
3. Tenancy at will
4. Tenancy at sufferance 

• lease states it will last for a specific period of time determined in advance by parties
• the death of either party does not automatically terminate a term of years
• Unless the tenant is breaching a material term of the lease the landlord may not evict before the end of the term

• created when the lease language says month to month or year to year
  • renew automatically at each specified period unless landlord or tenant choose to end the landlord-tenant relationship 
• notice which differs from state to state is required before landlord or tenant terminates periodic tenancy 
• periodic tenancy does not automatically terminate with the death of landlord or tenant 

• created when the lease states either party may terminate the lease without notice
• the death of land or tenant automatically terminates tenancy at will

• Created when a tenant who was formerly in rightful possession is now in wrongful possession but refuses to leave
• categorized as a tenant at sufferance, not a trespasser for the purposes of eviction law

• under the statute of frauds leases that CERTAINLY last for more than one year must be in writing
• Leases that CERTAINLY last less than one year can be written or oral
• If the time period is potentially more than one year then lease is not governed by statute of frauds

• once a licensee permission is revoked he/she becomes a trespasser and owner is entitled to use self-help to remove them
• Owners are not entitled to use self-help to remove tenants
  • Must initiate summary proceeding instead 

• if no statute states whether a certain type of agreement is a lease or license (ex. student dorm) then:
  • If they have exclusive possession of a defined space it is a lease
  • if control of the space has not been entirely transferred or possession of space is not exclusive to tenant more likely court finds a license was created 

• must be given reasonable time to find shelter after being terminated
• an employer may not use self-help to evict, but instead must initiate summary proceeding

1. A court will not enforce a contract provision if it is a violation of public policy
2. A court may revise a contract it finds unconscionable because the parties had unequal bargaining power and the challenged terms are unfair

• The landlord has the duty to transfer actual possession to the tenant at the beginning of the leasehold
• failure to deliver the premises is material breach which the tenant may recover damages 

• duty not to damage premises
• not to violate reasonable rules in the lease
• allow landlord reasonable access to inspect the property and conduct repairs 

• the law implies a promise by the business operate in good faith the entire length of the lease
• failure to do so is a breach and the remedy is damages
  • court doesn't force business to operate, but have to pay damages in the amount owed under the lease

• the law implies a promise by the business operate in good faith the entire length of the lease
• failure to do so is a breach and the remedy is damages
  • court doesn't force business to operate, but have to pay damages in the amount owed under the lease

amount tied profits + minimum rent provision

• imply a promise by the tenant to operate in good faith for the length of the lease unless the minimum rent provision is a substantial minimum rather than an amount much less than the fair rental value of the premise 
  • whether the minimal rent is a substantial minimum is question of fact, not law

• tenant transfer his/her entire interest in the lease
• if the assignee fails to pay or breaches other terms of the lease the landlord can sue the original tenant and the assignee for damages

• tenant transfers less than their entire property interest in the lease
• if sublettor breaches lease the landlord can only sue the original tenant for damages
  • but the landlord can file a summary proceeding against the sublettor to regain possession 

• impose a duty on the landlord to withhold consent only for reasons commercially reasonable 
• Commercially Reasonable:
  • the financial position of proposed assignee
  • suitability of the property for proposed business
  • need for alteration of the premise 

• most courts do not impose a rule of reasonableness
• cannot discriminate on basis of protected grounds 

• if tenant retains possession after breaching lease the land landlord may sue for damages and/or evict the tenant

• if he continues to pay rent and landlord cashes the check without remark the courts will ordinarily treat them as if they entered into a new lease

• refuse all rental payments and file a summary proceeding to evict the tenant
• The landlord may not use self-help to recover the premises 

• The landlord can accept or reject surrender
  • Accepts:  can collect any back rent ower plus any damages caused by the breach (usually measured by the loss of rent for the length of time it takes to re-let the property)
  •  Rejects: can collect any back rent owed, plus any future rent owed under lease, minus the amount of rent he is able to collect via mitigation
    • must make a reasonable effort to mitigate (ex. showing property and accepting reasonable new offers to rent the property)

• the clause states that if the tenant abandons premise or otherwise breaches lease the rest of rent for the life of the lease automatically comes due
  • enforceable as long as they constitute a reasonable estimate of the actual damages the landlord is likely to suffer as a result of the breach 

1. The implied covenant of quiet enjoyment
2. Implied warranty of habitability 

• landlord promises not to disturb the tenant's quiet enjoyment of the property 
• applies to commercial and residential leases

Landlord or someone in his control action or inaction interfere with the tenant's quiet enjoyment of the space in a way that is substantial that the premises is no longer useful for the purpose for which it was leased

• the tenant can stop rent payments, move out, and sue for damages and/or an injunction
• if tenant stays they will have a difficult time proving constructive eviction 
• Punitive damages are available where landlord's action or inaction were intentional and malicious

tenant only constructively evicted from part of premises then:

1. Cease paying for unusable space and/or
2. sue for damages (if any) and/or an injunction ordering the landlord to repair the condition that caused the partial constructive eviction
   • plaintiff can use a sword or a defense to landlord's counterclaim

• the implied promise by a landlord to ensure all residential property complies with state and local housing codes and meets general community standards of suitability for occupancy
  • At minimum need: adequate heat, light, ventilation, plumbing, serviceable windows, serviceable doors, and building maintenance 
• to bring as a defense or claim tenant must notify the landlord of the problem(s) and give landlord reasonable opportunity to fix it

1. Predictability- Determine what the parties actual expectations are and when and why they are justified or not
2. Clarity- more clarity means less litigation
3. Security- need to feel safe and secure in your property
4. Alienability- the law favors a free-flowing market in property rather than pacing burdens on property that will make it practically impossible to sell
5. Economic Efficiency- law favors the best and most productive economic use of property from the viewpoint of society as a whole 
6. Labor- the law favors rewarding labor that is rewarding people who work hard to create or improve property
7. Fairness- reach result in every dispute over property that seems the fairest and just in light of all the facts and circumstances