Covenants
appurtenant vs. In gross
Appurtenant: runs with the land (presumed in an ambiguous conveyance)
In gross: Intended to run with the land
requirements for an express easement
1) Writing that satisfies the Statute of frauds
2) Notice to the servient estate
- actual
-inquiry
-constructive
3) Intended to run with the land (presumed appurtenant)
Life estate
- "o to a for life", "for all his life"
-future interest can be in the grantor or a third party
- future interest in the grantor is not subject to RAP, property automatically reverts to the grantor
-future interest in 3rd party is subject to Rap, property automatically reverts to 3rd party
Absolutely Vested Remained
Applies to life estates: Remainder not subject to change "O to A for life then to B" not subject RAP
RAP
No interest is good unless it must vest, if at all, no later than 21 years after the death of some life in being at the creation of the covenant
Trespass
1) An intentional act
2) an intrusion on someone elses property (criminal trespass requires notice)
3) Without privelages
-necessity
-consent
BUT: cannot contravene public policy (State v. Shack)
requirements for an equitable servitude
- Writing
-intent
- touch and concern
-notice
Injunction is available for remedies
Requirements for easement by estoppel
1) land used to be in common ownership (2 parcels used to be owned by the grantor)
2) strict necessity (one parcel is landlocked)
Fee Simple Absolute
"O to A" or "O to A and his heirs"
- default estate, least restrictive
Is not subject to RAP
Vested remainder subject to divestment
Vested remainder can be lost due to an event that occurs after the conveyance
"O to A for life, then to B. but if B marries a lawyer, the property reverts to O"
Not subject to RAP
3 types of Per se takings
1) all economic use is taken
2) physical invasion
3) taking of a core property right
Cy Pres
Modify offending document to be consistent with the grantors intent
Requirements for a covenant
- Writing (complies with the statute of frauds)
- Intended to be binding/run with the land
- touch and concern
- notice
-Horizontal/vertical privity
Money damages available
Easement by estoppel and Easement from prior use
Easement by estoppel:
1)permission was previously granted by owner of land
2) dominant estate changed position/reasonably relied on the permission
3) Injustice can only be avoided by an easement
Easement from prior use
1)Land used to be under common ownership
2) one parcel was previously used for the benefit of the other and it was obvious
3) Use is "reasonably necessary/ convenient" for enjoyment of the dominant estate
(prior use requires less necessity than easement by necessity)
Rule against the creation of new estates
Court will defer against the creation of new estates and try and fit the deed into an existing type of estate
Vested remainder subject to open
Remainder vested in individuals but may be divided with others not born yet "O to A for life, then to the children of B"
Subject to RAP
Necessity
1) clear and imminent danger
2) actions effectively abate the harm/danger
3) No legal alternative exists
4) Legislature hasnt precluded the necessity specifically
Tenancy in common
1) Default tenancy situation, presumed if ambiguous
2) Each co-tenant has:
- right to occupy
- right to transfer/encumber
- property can be possessed, transferred, devised, inherited
3) Expenses are split 50/50
4) If co-tenants are mad about a decision/expenses, they can partition the property (physically split it or sell the property and split the proceeds)
presumption against forfeitures
If it is possible to interpret the deed language to avoid loss of property by the current owner, the court will adopt that interpretation.
Example: a FSSCS is preferable to a FSD becuase a FSSCS only has the possibility of reentry whereas the FSD reverts automatically
Perscriptive easement
OCANS
1) actual use
2) Continuous
3) open and notortious
4) Adverse (hostile)
5) For the statutory period
Fee simple determinable
Words of duration: "as long as", "during", "until", "unless" --> term
- violation of terms results in automatic reversion to grantor (reverter) Not subject to RAP
Fee Simple subject to executory limitation
Words of condition or duration: "until... then to...", "but if... then to..."
Future interest in 3rd party ---> executory interest
Violation of the condition results in automatic transfer to 3rd party it IS subject to RAP
nuisance
- Actions that result in substantial harm/ unreasonable interference with P's use and enjoyment of the land
Ouster
1) if A ousted B, A has to pay rent to B, AND A pays all expenses
-Constructive ouster: No hostile, affirmative act was done to oust, but impossibility or impracticability render ouster
-Strict ouster: Hostile action taken to exclude someone (Changing the locks)
Defenses to covenants and what they are
Changed conditions: relative hardship/reason for covenant doesnt exist anymore
Acquiescence: Servient estate violates the covenant without issue
Unclean hands: dominant estate doesnt enforce the covenant
terminating easements
1) Agreement in writing
2) Merger
3) abandonment
4) Frustration of purpose
Fee simple subject to condition subsequent
- Words of condition: "but if", "provided that", "on condition that"
- Grantor has the right to reenter - can choose to but doesn't have to
- usually will specifically state "Right to re-entry"
Contingent remainder
Two types of contingent remainders:
1) If the remainder will take effect upon the happening of an event not certain to happen
- "o to a for life, then to be if b has graduated from law schoo" --> if be doesnt graduate from law school, it reverts to O (NOT SUBJECT TO RAP)
2) Remainder will go to a person who cant be named yet (SUBJECT TO RAP)
- O to A for life then to the children of B" (B doesnt have children yet
Takings: Ad hoc/ Penn central test
- Decide if it is a tkaing that requires just compensation or if it is just a regulation
1) Economic impact of the regulation on the owner (BUT: Reciprocity of advantage)
2) Extent of interference with reasonable, investment backed expectations
3) Character of the government harm (preventing a harm v. extracting a benefit)
Joint tenancy + 4 Unities
1) Interest created at the same time
2) Same instrument
3) Equal share in property
4) Same right to possess
-If any unity is broken, joint tenancy is broken and it becomes a tenancy in common
- Joint tenancy creates a right of survivorship - you cannot inherit or devise joint tenancy