Term
| Fee Simple (Fee Simple Absolute) |
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Definition
Largest estate permitted by law.
Full Ownership of Land.
Largest possible aggregate of rights, privileges, powers, and immunities with respect to the land.
Can be inherited and is alienable. Owner may transfer ownership during their lifetime.
Restrictions on alienability are almost always void.
Unless otherwise suggested, a conveyance transfers all the rights from owner to the grantee. |
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Term
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Definition
Inheritable and alienable. Terminates upon the happening of even named in original conveyance. Transfers ownership to another. Three Types.
(1) Fee Simple Determinable (Possibility of Reverter)
(2) Fee Simple Subject to Condition Subsequent (Right of Entry/Re-entry)
(3) Fee Simple Subject to Executory Interest (Executory Interest) |
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Term
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Definition
AKA Possibility of Reverter
Automatically terminates on the happening of a stated event and transfers possession back to grantor (or his heirs or devisees).
Wording indicates that ownership is to last only for a certain period of time.
AS LONG AS
O to A AS LONG AS used for school purposes. |
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Term
| Fee Simple Subject to Condition Subsequent |
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Definition
AKA Right of Entry/Right of Re-entry
Grantor RETAINS the power to terminate the estate of the grantee upon the happening of a specified event.
Does not make the transfer back automatic. Grantor MAY exercise power of termination.
BUT IF
O to A BUT IF the property is ever used for anything other than school purposes, O shall have a right of entry for condition broken. |
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Term
| Fee Simple Subject to Executory Interest |
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Definition
AKA Executory Interest
An estate that following the happening of a state event estate becomes divested in favor of a third party rather than the grantor.
Automatically shifts ownership when condition is violated.
THEN TO (someone other than grantor)
O to A, but if the property is not used for school purposes, THEN TO B. |
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Term
| Difference Between FS Determinable and FS Subject to Executory Interest |
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Definition
Who gets possession upon happening of stated event?
Determinable reverts possession to grantor automatically. Executory Interest divests in favor of third party (not the grantor) automatically. |
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Term
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Definition
| Estate last for the life of the holder. |
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Term
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Definition
Future interest in third parties. Third party is able to take present possession upon the natural termination of the preceding estate created in the same conveyance.
Remainders must be expressly created in the instrument (unlike reversion).
O to A for life, then to B. (Life estate to A and a remainder to B) |
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Term
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Definition
Future interest in the grantor.
Transferable and devisable by will; descendible by inheritance.
All reversions are vested.
O to A for life. (Life estate to A and reversion to O) |
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Term
| Life Estate: Vested Remainders |
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Definition
Belong to an ascertainable person.
There are no conditions precedent that must be satisfied before the remainder is certain to become possessory.
Kinds: Absolutely Vested, Vested Remainder Subject to Open, Vested Remainder Subject to Divestment.
O to A for life, then to B. (B is NAMED person and no conditions must be satisfied before B's interest will take effect) |
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Term
| LE: Vested Remainders: Absolutely Vested |
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Definition
| A vested remainder that will not change. |
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Term
| LE: Vested Remainders: Vested Remainder Subject to Open |
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Definition
A remainder that is to a class that CAN increase.
O to A for life, then to the CHILDREN of B. (creates a vested remainder in the children of B, but the remainder is subject to open because more children can be born and join the class) |
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Term
| LE: Vested Remainders: Vested Remainder Subject to Divestment |
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Definition
A remainder which can be divested by the happening of a later event.
O to A for life, then to B, but if B drops out of law school then to C. |
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Term
| Life Estate: Contingent Remainder |
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Definition
Belongs to an unascertained person or if there is a condition precedent that must be fulfilled before it can be possessory.
(1) unascertainable person (2) condition must be fulfilled to vest |
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Term
| Difference between Contingent Remainder and Vested Subject to Divestment |
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Definition
Given and lost because of later event (ie. condition subsequent)= Divestment
Must be fulfilled (ie. condition precedent) = Contingent |
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Term
| Destructibility of Contingent Remainders |
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Definition
MODERN RULE is that contingent remainders are not destroyed.
Hangs around after LE terminated EVEN IF the contingency has yet to be fulfilled.
At Common Law, CR had to vest prior to or upon termination of preceding estate or it was destroyed.
O to A for life, then to B if she has graduated from law school. (property reverts to O if B has not graduated from law school when A dies; however if B later graduates, the property will spring from O to B). |
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Term
| Doctrine of Worthier Title |
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Definition
Makes it possible for the interests to be merged in a third party to create a fee simple.
A person can negotiate with the present interest holder and the future interest holder
and if the estate comes to be owned by the same person, then that buyer will own a fee simple.
Ancient tax evasion scheme. |
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Term
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Definition
Transforms a contingent remainder into a vested one.
O to A for life, then to heirs of A. (remainder in the heirs of A is transformed to a vested remainder)
Ancient tax evasion scheme. |
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Term
| Shifting Executory Interest |
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Definition
| One that divests the interest of another transferee (it cuts short a prior estate created by the same conveyance) |
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Term
| Springing Executory Interest |
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Definition
| An interest that follows a gap in possession or divests the state of the transferor. |
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Term
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Definition
Grants power to one person with instructions to manage the property for the benefit of another.
Trustee is said to possess "legal title" while the beneficiary possesses "equitable" title. |
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Term
| Interpretation of Ambiguous Conveyances |
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Definition
(1) Presumption Against Forfeitures
(2) Waste
(3) Cy Pres
(4) Changed Conditions |
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Term
| Presumption Against Forfeitures |
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Definition
Protects the holder of the present estate and avoids forfeiture to the future interest holder.
Fee Simple is preferred to a life estate.
A Defeasible Fee > life estate.
FS subject to condition subsequent > FS determinable
A FS with precatory (expressing a wish) language > FS subject to a real covenant |
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Term
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Definition
A life tenant is permitted to use the land for present purposes as a reasonable owner would but is not permitted to commit "waste."
Conduct constitutes waste if it damages the inheritance. |
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Term
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Definition
Seeks to keep property within the charitable intent of the original trust if the trust becomes inoperable for some reason.
If property is given in trust to a particular charitable purpose and it becomes impracticable or illegal to carry out the particular purpose and the settlor (creator of the trust) demonstrated a general intent to devote the property to charitable purposes, the court will direct the application of the property to some charitable purpose which falls within the general charitable intention of the settlor.
If the settlor did not have a general charitable intent, and sought to aid a specific charity state in the trust, then the trust will fail and the trust body will return to the donor or her heirs or to such 3rd parties as are designated in the trust instrument. |
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Term
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Definition
Renders a covenant unenforceable, or enforceable by damages alone rather than injunctive relief, if conditions have changed so much that enforcement of the covenant will provde no real benefit to the owner of the dominate estate.
Future interests are not subject to this rule. |
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Term
| Regulatory Rules on Future Interests |
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Definition
Designed to PROMOTE the alienability of property BY destroying or narrowly construing future interests.
Abolition of Fee Tail, Restrictions on creating new estates, no unreasonable restrains on alienation, RAP, racial restrictions, and restraints on marriage. |
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Term
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Definition
A covenant that kept property within the family.
Abolished everywhere in the US. |
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Term
| Restrictions on New Estates |
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Definition
General rule against the creation of new estates.
Complicated estates both impede and the alienability of property and may constitute "dead hand." |
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Term
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Definition
Invalidates future interests UNLESS they are certain to vest or fail to vest within 21 years of the death of someone who was alive (life in being) at the creation of the interest.
Executory interests, contingent remainders, and vested remainders subject to open must all be tested against the rule.
All interests in the grantor, such as reversions, possibilities of reverter, and rights of entry are exempt from the rule. |
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Term
| Racial Restrictions on Conveyances |
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Definition
Deprives individuals of equal protection of the law by preventing them from purchasing property due to their race.
Equal protection not implicated when an owner refuses to sell property to someone because of that person's race. |
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Term
| Restraints on Marriage in Conveyances |
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Definition
Traditional held to be void.
Common law rule was based on the lack of desire to enforce a conveyor's means of coercing complete abstention of marriage.
To support: ok.
Valid only if they do not unreasonably limit the right to marry. |
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Term
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Definition
A revocable permission to commit some act that would otherwise be illegal
Elements
Is not attached to the land
Personal to the person who holds the license
It is permissive and revocable at will
No writing is required
Lowest level of permission
To say that you are licensee is a defense to trespass |
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Term
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Definition
A revocable permission to commit some act that would otherwise be illegal
Elements
Is not attached to the land
Personal to the person who holds the license
It is permissive and revocable at will
No writing is required
Lowest level of permission
To say that you are licensee is a defense to trespass |
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Term
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Definition
| Called an Easement, right of way, in short a right to enter someone’s property |
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Term
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Definition
| A restriction on the use of your own use of your property or to refrain from engaging in activity upon the servient estate |
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Term
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Definition
Easements created by law when the express agreement between the parties is either silent or ambiguous on the question whether on the question of whether the grantor intended to create an easement
Four types: Easement by Estoppel, Constructive Trust, Implied by prior use, Necessit |
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Term
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Definition
Created when an owner gives someone else permission to use property in a particular way and the licensee invests substantially in reasonable reliance on that permission, and revocation of the license would create an injustice.
Elements:
Right to Enter granted to licensee
Substantial investment by the licensee
Injustice if the right is removed |
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Term
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Definition
A trust is a property arrangement that empowers one person (trustee) to manage property for the benefit of another person (beneficiary).
Constructive trusts require a property owner to use the property for the benefit of another, or to grant a non-owner access to the property, or to transfer possession or ownership to another. |
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Term
| Easement Implied by Prior Use |
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Definition
Elements
Common Ownership in the history of the parcel (unity of title)
One parcel has derived a benefit/advantage from the other
There is a visible and continous use
There is a a reasonable necessity for the use
Most implied easements are rights of way
Most cases deal with conflicts between the owner who claims a right to use property free from any easements that were not reduced to writing the owner who claims that the prior use of the land strongly suggested that one of the parcels was subject to an easement for the benefit of the other.
Courts are more likely to imply an easement to a grantee (buyer) than to a grantor (seller)
When conveying the property the grantee assumes that the grantor is parting with all rights to the property. If the grantor wishes to reserve some rights it should be done in writing
Easments may be implied from ambiguous deed references or from roads drawn on a map to which the deed referes. |
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Term
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Definition
Easements are implied by necessity when an owner sells a landlocked parcel. The owner of the landlocked parcel has a right of access through the grantor’s remaining land to get to a public road.
No prior use is needed to obtain an easement by necessity
Elements
Common Ownership/Unity of Title
Necessity
Landlocked
Only a landlocked parcel that would have no other access to a public road can benefit from this doctrine
There must be a strict necessity. |
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Term
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Definition
If one uses someone else’s property in a way that is visible, continuous, and nonpermissive for a period established by the statute of limitations, one can acquire a prescriptive easement to continue that use.
Prescriptive easements run with the land and are binding on subsequent owners of the servient estate
Elements
Actual use of the property of another
Use is open or notorious or visible
Continous and/or uninterrupted use
Lasts for a statutory period
A nonpossessory interest, use for less than full possession or occupation. Unlike adverse possession) |
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Term
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Definition
An express easement is voluntarily created in a deed, will, or other written instrument. It may arise either by grant or by reservation. In order to create an express easement, the writing must identify the parties, manifest an intent to create an easement, describe the affected land, and be signed by the grantor.
Elements
Created by agreement of the parties, and are expressed rather than implied.
Easements are written
Intended to run with the land
Substantive limitations
Limits on negative easements
Light
Air
Lateral Support
Flow of an artificial stream |
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Term
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Definition
That are intended to run with the land, such that the BENEFIT of the easement will pass to any future owner of the dominant estate.
Easements intended to be appurtenant will run with the land ONLY IF:
The easement is in writing
The original grantor who created the easement intended the easement to run with the land
Subsequent owners of the servient estate had notice of the easement at the time of the purchase of the servient estate. |
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Term
| Types of Notice for Easements |
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Definition
Actual Notice: If subsequent owner is aware of existence
Inquiry Notice: Visible signs of use by non-owners compel purchaser to ask
Constructive notice: The deed is properly recorded (court house, registry of deeds and deed is in chain of title) or a title search would lead to discovery of the deed. |
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Term
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Definition
Easements that are not intended to be attached to the ownership of particular parcels of land
Easements for personal use or non commercial use. |
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Term
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Definition
Easement Lasts forever unless terminated
Five ways to terminate
By agreement in writing
By terms of the original conveyance (i.e. easement will last for 10 years)
By Merger (both dominant and servient estate become owned by same person
Abandonment- can be shown by conduct that owner clearly indicated an intent to abandon the easement
Adverse possession or prescription
Not limited to owner of servient estate may be a third party |
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Term
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Definition
| E.G. One owner places a fence, driveway or shrubbery a short distance over the property line occupying neighbor’s property. (Brown v. Gobble) |
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Term
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Definition
| Involve knowing occupation of an entire parcel or portion of a parcel, w/ the intent to use it as one’s own land. |
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Term
| Procedures & Effects of Adverse Possession |
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Definition
(1) Level of Proof Requirement:
a) clear and convincing evidence
b) Preponderance of the evidence
(2) Effect of Prior Encumbrances
a) Adv. Possess. Obtain ownership rights subject to pre-existing liens, mortgages, easements, restrictive covenants & mineral interests |
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Term
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Definition
| A condition or situation that interferes with the use or enjoyment of property. Something that is offensive, physically, to the senses and by such offensiveness makes life uncomfortable, such as noise, odor, smoke, dust, even flies. |
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Term
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Definition
a. intentional- Malice, Knowledge to a substantial certainty that is will bother neightbors.
b. Non-Trespassory
c. Act or omission
d. substantial (offensive or inconvenient to an ordinary person)
e. Unreasonable (Balancing Test/cost/benefit to society)
f. Amount of harm
g. No Relief if unusually sensitive |
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Term
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Definition
Injunction: To be free from the harm
No Relief: Creates entitlement to inflict harm
Damages: Allow the harm to be committed upon payment for compensation
Purchased injunction: Allow the harm to be prevented upon payment of compensation to the party ceasing to cause the harm. |
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Term
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Definition
| Odors, pollution, leaking gas, chemicals, sewage, landfills, excessive light and noise |
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Term
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Definition
| Violation of a legal right common to the public as a whole. (Doing of or failing to do something that injuriously affects the safety, health, or morals of the public or works some substantial annoyance, inconvenience or injury to the public. Community more important than the single entity. |
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Term
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Definition
| According to the Riparian Doctrine water does not belong to the public generally or to the state but to the land owner with which the water is bordering. |
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Term
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Definition
Natural Flow: Prohibits owners from discharging water in any way other than through natural drainage paths. If natural patterns interfered, liability.
Common Enemy: Grants each owner the privilege to expel unwanted water. Each landowner has an unqualified right to expel water w/o being required to take into account possible damage to other landowners property.
Reasonable Use: Allows reasonable discharge but does not allow substantial harm to be committed. Takes into consideration social benefit/cost of avoiding harm/amount of harm. |
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Term
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Definition
| Majority Rule: water side (Riparian) land owners rights to use water bordering or passing through their property, and denying such rights to nonriparian owners. If able to be navigated, the owner does not own the waterway, is public property. |
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Term
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Definition
Free Use Rule: Free to withdraw as much water as they like w/o liability (even for profit) and even if it drains water from adjoining wells.
Reasonable Use Rule: May withdraw a reasonable amount of water. (Jury decides) |
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Term
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Definition
a. Owners have a legal right to have their land supported in its natural state (Not the weight of structures) by adjoining land.
b. The obligation is absolute and does not rest on showing that defendant acted negligently.
c. Landowner is negligent if his excavation causes adjacent land to subside, even with utmost care. (Strict Liability)
d. Duty exists for construction teams to act reasonably in excavating as to avoid withdrawing support from neighboring structure. |
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Term
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Definition
a. Surface owners have an absolute right to subjacent support for their land.
b. Those who withdraw subjacent support for the surface are strictly liable for damage to the land in its natural condition.
c. Strict Liability |
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Term
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Definition
1. Absent a zoning law to the contrary, owners are free to build in ways that interfere with their neighbors’ interests in light and air.
2. Fontainebleau v. Forty-Five: Each owner is free to build in ways that cast shadows on neighboring property or block neighbor’s view. Unless an easement exists for light and air.
a. sole exception is spite fence, constructed solely to block the owner and no benefit. Solely to annoy the neighbor. |
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Term
| Adverse Possession (policy/definition) |
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Definition
Method of acquiring title to real property by possession for a statutory period under certain conditions:
Non-permissive use of land w/ claim of right when use is:
1) Continuous
2) Exclusive
3) Hostile or Adverse
4) Open & Notorious |
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Term
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Definition
Possessor must physically occupy premises in some manner;
Adverse Possessor must treat property as if its his own (make ordinary use of which land is capable & as real owner would make use of it) à Will vary with nature and location (situation specific à i.e. summer house? Camp ground?) |
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Term
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Definition
Possessory acts must be sufficiently visible and obvious to put a reasonable owner on notice that the property is being occupied by a non-owner w/ the intent of claiming its possessory rights.
Adverse possessor does not need to prove that the title holder observed or knew about the use of the property.
Sufficient acts (not an exclusive list):
1) building a structure
2) clearing the land
3) Building driveway
4) Planting & harvesting crops |
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Term
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Definition
| The use is of a type that would be expected of a titleholder of the land in question & that the adverse claimant’s possession cannot be shared with the titleholder |
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Term
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Definition
Occupancy must continue without significant interruption
· Tacking: succeeding periods of possession by different persons may be added together to fulfill this requirement of adverse possession |
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Term
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Definition
Adverse possessor must treat the property as his own & without the the title holder’s permission
2 requirements: state of mind of the adverse possessor and state of mind of the titleholder taken into consideration
State of mind of adverse possessor (different views)
1) Objective test: a) possessor’s state of mind is irrelevant; b) actual possession in a way characteristic of ownership à what matters
2) Claim of Right: Possessor intends to appropriate & use the land as his own to exclusion of all others
3) Intentional Dispossession: adverse possessor must be aware that she is occupying property that’s not hers & intends to oust/dispossess true owner (minority view – not always required)
4) Good Faith (not in all states) |
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Term
| Justifications for Adverse Possession |
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Definition
1) Adverse possession law clarifies titles by eliminating stale claims
2) A.P encourages active & efficient use of land |
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Term
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Definition
Situations where adverse possessor obtained ownership by way of a formal document believing they were obtaining title to the land, but some defect in the deed itself or the process by which deed was conferred makes the title defective & formally incapable of transferring title:
Case: Romero v. Garcia
· Color of title valid to prove “belief of ownership of valid deed” (and so is payment of taxes)
· When deed alone doesn’t describe land adequately, deed alone is not enough; if a surveyor can identify land that is sufficient proof.
· Facts: deed was void because mother in law didn’t sign it; husband/wife got land from husband’s parents; husband dies – land belongs to wife – wife remarries, now in-laws claim deed invalid and therefore wife can’t have land. |
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Term
| Oral Agreements b/n neighbors that set boundary lines (AP) |
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Definition
Can only be upheld if:
Both parties are uncertain where the true boundary lay OR
A genuine dispute exists over the location of the boundary
The parties can prove the existence of an agreement setting the boundary
Parties take possession to the agreed line. |
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Term
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Definition
Even without Oral Agreement, long standing acquiescence by both neighbors may be recognized if:
They are adjoining owners
Who occupy their tracts up to a clear and certain line
Which they mutally recognize and accept as the line between their properties
For a long period of time, cannot thereafter claim that the boundary, thus recognized is not the true boundary |
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Term
| Boundary by Estoppel (AP) |
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Definition
| When one owner erroneously represents to the other that the boundary between them is located along a certain line and the second in reliance of the representation, build improvements which encroach on the true boundary or takes other detrimental actions. |
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Term
| Difference between Prescriptive easement and Adverse Posession (AP) |
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Definition
Are the same elements but the intent is different
Intent in Adverse Possession
One claims land as though they are the true owner
Intent in Prescriptive Easement
There is no claim of ownership, just claim of use. |
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Term
| Adverse Possession of Personal Property |
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Definition
Discovery Rule
Statute of Limitations for adverse possession begins to run when the title holder discovers, or reasonably should have discovered where the stolen personal property is located
Demand Rule
Cause of action for recovery against the good faith purchaser of a stolen chattel occurs when the true title holder of a stolen chattel makes a demand for its return and person in possession refuses
Until the demand is made (and refused), possession of the stolen property by the good faith purchaser for the value is not considered wrongful. |
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Term
| Remedies for Breaches of Covenants |
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Definition
· Traditional Remedy: DAMAGES ($)
· Enforceable by Injunctive Relief if:
o Purchaser of servient estate on notice of the covenants at the time of acquisition
o Original covenanting parties intended the covenant to run with the land
o If the covenant “touched & concerned” the land
o Any covenant enforceable by damages is also almost certain to be enforceable by injunction.
o Awarded only when damages are inadequate.
· Enforcement In Gross:
o Only the current owner of the benefitting parcel can enforce covenants that touch & concern the land, for the benefit of the owner of neighboring land. |
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Term
| Implied Reciprocal Negative Servitudes |
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Definition
· Reciprocal enforcement allowed when deeds in question formally restricted use of the land but technical requirements of Privity were not met; allows enforcement by early buyers against later buyers.
· Impose obligations on land purchasers to research titles not only to the parcels they were buying but to neighboring parcels that had been previously owned and conveyed by the seller of the land
· If restrictions put on all surrounding parcels by general developers, courts may hold that developer intended to have the restrictions on ALL parcels and therefore all parcel owners should have be on notice as to restrictions. |
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Term
| Interpretation of Ambiguous Covenants |
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Definition
1. Courts inclined to interpret in a manner which is "least burdensome to the free use of the land"
2. Modern Courts look at the Grantor's intent:
a) Intent must be shown by express language in the deed or a declaration but may be supplemented by extrinsic evidence where necessary to interpret an ambiguity |
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Term
| Formal Requirements for Covenants: |
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Definition
(1) Writing
(2) Purchaser must be on notice
(3) Intent to run with the land (Implied or expressed)
(4) Horizontal and Vertical Privity
(5) Touch & Concern the land |
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Term
| Requirements for a Writing (Covenants) |
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Definition
-Statute of Frauds applies to the writing to be enforceable
- Not required to be in subsequent deeds
- Must be in a lease, deed or recorded in a declaration |
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Term
| Notice Requirements and Types |
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Definition
-Notice at the time of the purchase
-Actual Notice is proved by showing a purchaser was actually aware of the covenant (Directly told or made known directly)
- Constructive- Recorded in the registry of deeds. Must be able to be found with a reasonable search. Purchaser is expected to search the title
- Inquiry- Any indication of the premises that indicates that the property is so encumbered. |
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Term
| Intent to Run with the Land |
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Definition
| Can be expressly stated (We intend for this to run with the land or Binds future owners etc) |
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Term
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Definition
Horizontal- Agreement between the original covenanting parties. Accompanies the transaction in land. At the time of the transaction, both the two parties shared some interest in the land independent of the covenant.
Vertical- Relation between original covenanting parties and the successors in the interest. The successor must hold the entire durational interest held by the covenanter at the time they made the covenant. |
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Term
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Definition
Makes the benefitted parcel worth more or allows it to be used to a greater degree.
Make the burdened parcel worth less or allows it to be used to a greater degree.
May be simultaneous such as all homes must be painted certain color (it is assumed that both parcels are burdened and benefitted) |
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Term
| Public Policy Limitations |
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Definition
(1) Unreasonable Restraints on Alienation (Unable to further public policy and somehow harms the area due to the limitation.
(2) Unreasonable Restraints on Competition (Harms the community such as limiting the availability of grocery stores or creates a harmful monopoly.) |
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Term
| Modifying or Terminating Covenants: Changed Conditions |
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Definition
Covenants will not be enforced if conditions have changed so drastically that enforcement will not be beneficial to dominant estates
Applies when there has been such a radical change in conditions since the creation of the covenant.
The question is whether the covenant remains of substantial benefit to the dominant Estate |
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Term
| Modifying or Terminating Covenants: Relative Hardship |
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Definition
A covenant will not be enforced if the harm caused by the enforcement will be greater by a greater magnitude than benefit to the owner of the dominant estate
If the hardship to the servient estate is great and the benefit to the dominant estate is small, the court may refuse to enforce the covenant
The focus is on the servient estate |
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Term
| Modifying or Terminating Covenants: Conduct of Parties |
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Definition
Some terminate within a certain number of years unless they are renewed
Some can be changed by a vote of an HOA if within
Doctrine of MERGER: If the covenanted estates come under a single owner, then it will terminate.
All parties affected by convenant may agree in writing to terminate the covenant or release the properties. |
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Term
| Modifying or Terminating Covenants: Equitable Doctrines that prevent enforcement |
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Definition
Unclean Hands
Complaining party had also violated the covenant
Acquiescence/ Waiver
Occurs when the servient owner violates the covenant and the servitude beneficiary fails to object
Abandonment
Beneficiary relinquishes the rights created by servitude
Failure to to take advantage of benefit of the servitude rarely establishes abandonment
Latches
Owner waits too long to enforce his rights and is barred from doing so.
Merger
Both benefitted and burdened estates come under one owner
Prescription
Open and notorious violation of the covenant with permission for longer than the statutory period may terminate the covenant by prescription
Estoppel
If benefited represents to servient estate by the conduct, word, or silence, and intention to modify or terminate the servitude may be estopped from enforcing the covenant if the covenant owner changes her mind.
Statutory Regulation
State title statutes that terminate restrictive covenants if they are not recorded after a specified period of time. |
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Term
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Definition
All persons within the jurisdiction of the US shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, given the evidence, and to the full and equal benefits of all law and proceedings for the security of persons and property as is enjoyed by white citizens.
Section 1982 - All citizens of the US shall have the same right as is enjoyed by white citizens to inherit, purchase, sell, hold, and convey real and personal property. |
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Term
| Americans with Disabilities Act of 1990 |
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Definition
Prohibits discrimination in access to the accommodations of existing facilities but requires NEW buildings to PROVIDE ACCESS to persons with disabilities.
Discrimination in the full and equal ENJOYMENT of GOODS, SERVICES, PRIVILEGES, ADVANTAGES, or ACCOMMODATIONS of any place of public accommodation by a person who owns, leases, or operates a place of public accommodation.
DOES NOT APPLY TO PRIVATE CLUBS.
INJUNCTIVE RELIEF! No damages. |
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Term
| Elements of the Americans with Disabilities Act of 1990 |
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Definition
(1) Disability - physical or mental impairment which substantially limits major life activities
(2) Discriminated against on that basis
(3) From a public accommodation:
a. Affect commerce
b. Broadly defined
c. Almost any entity that offers GOODS or SERVICES to the PUBLIC, list is not exclusive
(4) By the owner of the public accommodation |
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Term
| Free Speech Rights and Access to Private Property |
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Definition
(1) US Constitution - The right to speak in public places, hand out leaflets on public streets and in public places is subject to REASONABLE TIME, PLACE, and MANNER restrictions.
(2) State Constitution - Most state courts have been consistent with LLYOD v. TANNER. Shopping Center owners MAY EXCLUDE individuals handing out leaflets.
(3) Labor Laws - National Labor Regulations Act protects right of 'EEs to form unions and engage in collective bargaining.
(4) Public Trust Doctrine - Rights that are owned by the public cannot be alienated by the US to a private owner (ex - navigable waters) |
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Term
| Free Speech and Access to Private Property: CASES |
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Definition
Marsh - company town acting as government CANNOT prevent individuals distributing literature
Logan Valey - freely accessible shopping center and open to public was like business block for 1st amendment. Cannot exclude peaceful non-employee picketing of store.
Llyod - shopping mall w/ enclosed private walkways not required by 1st amendment. CAN exclude. |
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Term
| Common Law Limits on the right to exclude |
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Definition
Consent
Estoppel
Only if relief would be inequitable under thw circumstances
The trespasser reasonably relied on the license given to them to revoke
Will convert license to permanent easement
Necessity
Emergency to save property or lives |
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Term
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Definition
Any structure that intrudes onto neighboring property constitutes a trespass whether it occurs beneath the ground, on the surface or in the air.
Courts may order removal of the structure intruding on the property .
May deny injunctive relief if the expenditure was large compared to the minimal intrusion.
Owners have the right to trim the object and remove it from their land. |
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Term
| Common Law Limits on the right to exclude: Public policy or social need |
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Definition
Public Authority
Public Authority (officers in hot pursuit)
Right of occupants (right to receive visitors)
Retained public rights never given to private ownership (beach access)
Social Need
Intrusion may be privileged in cases of justifiable social need (state v shack)
Prescription
If a trespasser has possessed property openly for a sufficiently long period of time without the owner’s permission, they not only have a defense to trespass buy may granted title through Adverse possession. |
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Term
| Right to Exclude (general) |
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Definition
o Owners have right to exclude non-owners and objects intruding on their property
o Not an absolute right
o Protects the owner’s right to exclusive possession
o Also protects quiet enjoyment (enjoying property w/o interference) |
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Term
| Exclusionary Rights for Private Owners: (different for private and public) |
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Definition
o Owners/possessors of property that is not open to public have a right to exclude others from their property. Protects right to exclusive possession & right to exclude.
This right can be waived by admitting others onto property (especially on regular basis) |
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Term
| Exclusionary Rights for Shared (Both private & public) |
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Definition
o When an owner has agreed to allow others or has agreed to transfer possession to another
o Contractual relationship b/w parties will determine whether owner has retained right to exclude or has effectively transferred right to tenant or possessor |
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Term
| Exclusionary Rights for Public Accommodations (open to public) |
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Definition
o Public Accommodation = a business establishment that provides lodging, food, entertainment, or other services to the public, especially one that affects interstate commerce or is supported by state action
o Facilities open to public and hold themselves out as ready to serve members of the public for specific purposes
o Examples: innkeepers and common carriers |
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Term
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Definition
o Damages:
Nominal – available w/o proof
Compensatory – when actual harm occurs as a cause of the trespass
Permanent
Punitive
o Injunctive Relief: orders trespasser to cease intrusion in future or remove intruding structures/agents of the trespasser
o Ejectment: court will order the trespasser/wrongful possessor to leave the property |
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