1. Using land as owner would and puts true owner on notice of your possession

1. Requires that the claim be founded on some document or judgment that proves to be invalid

2. In some jurisdictions, the statute of limitations will be shorter if you have this.

5. Psychological reasons- there are certain expectations that it is yours

6. Punishes those people who are not vigilant in keeping their property

1. Ad Coelum Doctrine- to whomever the soil belongs, he owns to the sky and to the depths

2. VanValkenburgh- the court required that the adverse possessors improved the land; gardening was not enough, the chicken coop was removable, and he knew the shed was not on his land, the garage he thought was on his land. The ad possessors lost both the good faith test and the bad faith test for claim of right but the court probably wanted to uphold the claim of the owners because the bought the property at a tax sale.

3. Disclaiming property gained by adverse possession- once acquired, it can only be transferred through formalities. If the property is disclaimed before statutory period runs, it can affect claim of right.

4. Mannillo v. Gorski- the encroachment was only 15 inches. The Maine doctrine said that taking must be knowingly wrongful and the Connecticut doctrine does not. There will be no presumption that it was open and notorious when there is such a small encroachment. When innocent trespasser cannot without great expense, eliminate encroachment, the owner may be forced to convey the land for payment.

5. Howard v. Kunto- there were 2 issues here: can summer occupancy be continuous; can periods be tacked. Continuous means, as true owner would use it, so if it was a summerhouse this is enough. Privity is the only requirement for tacking.

6. Okeefe- this was a replevin action for 3 pictures.

3. State the price (some ct’s will imply a reasonable price but the writing must refer to the price and provide a reasonable means to establish the price).

4. Also include-

a. Date of closing

b. Earnest money agreement

c. Provision for risk of loss

d. Financing contingency

e. Provisions for breach

f. Whether it included personal property

g. Inspection

h. What type of title and time is of the essence clause?

i. For Closing-

Who is responsible?

Get advance copy

Delivery of deed

Final payment

Satisfy liens

5. Exceptions

a. Part performance

b. Estoppel

c. To transfer an interest in land all you need is writing

5. Residential Sales are pretty standardized and there is little room for negotiation.

6. Lawyers should assist when there are special circumstances- non- U.S. citizen, complex estate planning, and transfers to a family trust, buying property out of an estate, creation of future interests, and commercial real estate.

2. Agent will find a qualified buyer for a specific price within a specific time.

3. Listings

1. Hickey- oral agreement to sell land, P writes a check and puts the lot # on it and on the other she put the street and sales price. This does not comply with the SOF because the party to be bound did not sign it. Specific performance was granted on the doctrine of estoppel.

4. Insurance- just because an insurance company may be willing to write a policy it doesn’t necessarily follow that title is marketable (difference in jurisdictions).

3. Against encumbrances- including mortgages, liens, easements and covenants

1. General Warranty- grantor warrants that he will defend against any lawful claims and will compensate grantee for any loss because of an assertion of superior title.

2. Quiet enjoyment- warrants that the grantee will not be disturbed in possession and enjoyment by assertion of superior title.

3. Further assurances- grantor promises that he will execute any other documents required to perfect title conveyed.

1. Chose in action- impliedly assigned is often said as those present covenants that run with the land

2. Rosengrant- Deed was not legally delivered because the grantor reserved a right to retrieve it and attached conditions that it becomes operative only after his death and grantor continued to use the property. You need actual or constructive delivery with the intent of the grantor to divest himself.

3. Sweeny- Conditional delivery must be placed in the hands of a third party to be kept until the happening of the event to be effective.

4. Sir Edward Coke- 1552-1634, solicitor who argues Shelly’s case, attorney general, chief justice of the court of common pleas (Dr. Bonham’s case), judicial review, advocate of common law, first to do case reports

5. If you are unaware that someone has executed a deed to you it is implied that you accept, implication may be rebutted. A minority of jurisdictions require that you have knowledge to accept.

6. Types of deeds

1. Note- creates a personal liability, not recorded, don’t ever witness one

2. Mortgage deed or deed of trust- creates a security interest, a lien for the mortgagee, recorded

2. Right of redemption- by paying principle interest and other costs owed, you have the right to keep and stop foreclosure, comes from equity.

3. Statutory redemption- comes into play after foreclosure sale, you may still redeem the property within a certain amount of time.

A deed of trust was thought of by lawyers for lenders as a way to avoid judicial foreclosure and the statutory right of redemption. Borrower conveys title to a third person to hold trust to secure payment of debt to lender. Third person can sell when the mortgager defaults.

With a mortgage deed, you must go through judicial foreclosure, which is very costly.

They have a duty to obtain a fair price. They must use commercially reasonable conduct. Bad faith would be not complying with the statutory requirements. Must list the property as you would any other. Must have an upset price (one which you will not sell below). Must sell for at least the cost of the outstanding debt, or appraisal value. If the property doesn’t sell, you can keep reducing the price.

3. Mortgagor’s Remedies for breach of duty by mortgagee- they can get an injunction, sue to have sale set aside or sue to get damages.

4. Deficiency judgment- if the sale doesn’t bring enough money, he mortgagee can obtain judgment against the mortgagor for the remainder. Some states have anti-deficiency judgment legislation to prevent this.

1. Bean v. Walker- installment K’s that provide that sellers can keep the property is the purchaser defaults on a payment are invalid and purchaser will be treated as having a vested interest and equitable title. The Doctrine of equitable conversion applies here- it regards as done that which ought to be done.

3. To show history and protect bona fide purchasers form previous unrecorded instruments

1. Tract index- each tract gets a PIN assigned, this is too difficult where land has not been surveyed, and it was difficult with early deeds that describe property with meets and bounds.

2. Grantor-Grantee index- must search both to do an adequate search

2. Constructive- imputed from the record, documents that are improperly indexed will not prevent this from applying because we should not punish the seller if the county fucks up.

3. Inquiry- circumstances tell you that you should inquire in the record. Even if you wouldn’t have found anything, if you don’t inquire when a reasonable person would have, you create a problem. Ex. subdivision restrictions.

1. Race- First one to record takes the property, actual notice is irrelevant, promotes reliance on the record, 1/2 states have this

2. Notice- Subsequent purchaser is protected if they didn’t have notice- actual or constructive. Texas, 1/2 states have this.

3. Race/Notice- Subsequent bona fide purchaser is protected if no notice, and the first one to record

1. Mother Hubbard Clause- all of grantor’s property interest in a certain county is conveyed, this is a simple was to cover all. However, these are not specific enough to give constructive notice to subsequent purchasers so they are invalid against subsequent bona fide purchasers, unless they have actual notice. If you use MH language in an emergency, you must protect your title by filing an affidavit with the register of deeds as soon a possible describing the land.

2. Idem Sonans- although a person’s name has been inaccurately written, the identity of such person will be presumed from the similarity of sounds between the correct pronunciation as written. This rule is inapplicable where the written name is material (where a variance is such that it has misled a party to his prejudice).

3. Old CL- middle initial has no significance.

4. Shelter Rule- you can take the protection that the recording statute provides your grantor. The shelter rule does not extend back to the grantor to give him clear title.

5. Messersmith- A recording, which does not meet the statutory requirements, affords no constructive notice and the statute required that they appear before a notary. Deed is invalid until name is filled in.

6. Zimmer Rule- in a race-notice jurisdiction to be a bona fide purchaser in good faith, you need to have all of the deeds in your chain of title recorded.

7. Texas- defects in deeds that arise from defective acknowledgements only have a 4-year SOL.

8. Guillette v. Daly- grantor gave deed with restrictions, then later gave deeds to lots within the same subdivision without restrictions. Where there is a common grantor, every recorded deed gives you constructive notice of the deeds coming out of that subdivision.

9. The question is whether a prior deed from an owner recorded after a later deed from the same owner gives constructive notice to subsequent purchasers from the grantee. Majority view today that a deed recorded before a grantor obtained title is out of the chain of title and estoppel by deed does not apply.

NE/Mass. Rule is that a purchaser does not have to search to see if a grantor made a prior conveyance that was recorded later.

Miss. Rule is that a late-recorded deed does give constructive notice.

10. Daniels v. Anderson- What do we do when notice of first right of refusal comes along 1/2 way through the transaction? 3 ways to handle- payment of purchase price by claimant to buyer and convey; fractional share- proportioned; buyer completes purchase and remaining payments go to claimant.

11. Lewis- a lis pendens was recorded on 2/24 but not indexed until 2/29- the day after the Lewises acquired title. The Lewises were SBFP without notice. In Davis there was actual notice. Here, the purchaser was given the benefit of the bargain.

12. Recitals of deeds put purchasers on notice of those prior unrecorded deeds.

13. Marketable title acts- their purpose is to limit searches to a reasonable period of 30-40 years. But, you still have to search the entire chain of title- the acts end up clearing up some titles with old claims and certain defects.

14. What protection to a prior purchaser who receives notice before paying the balance? Equitable conversion (Waldorf).

1. Title insurance was developed as a result of the inadequacies of public recording.

2. There is a mortgagee’s policy and an owner’s policy.

3. It guarantees the insurance company has searched the records and insures against any defects in the public records, unless such defects are specifically excepted.

4. The standard policy excludes losses arising from government regulations affecting use, occupancy or enjoyment of the land, subdivision regulations, unless notice is in the public record.

5. Because all of the secondary market purchasers of mortgages require lender’s title insurance, there had been an explosive growth of title insurance in the last 30 years.

2. It has no fixed terms and continues as long as the insured maintains an interest in the property.

3. Can used whatever form they wish but usually a uniform K.

1. Chelsea Title- the basic question is whether the issuance of the title commitment and policy places a duty on title insurance company to search for and disclose to the insured any reasonably discoverable information that would affect the insured’s decision to close on the K to purchase. A title company may expose itself to negligence liability as a title searcher if it agrees to provide the insured with a title abstract.

1. Intentional and unreasonable- acts to cause result, or knows with substantial certainty

3. Rest 826(a)- weigh the gravity of harm vs. the utility of the conduct

Gravity of harm- extent and character of harm, social value, suitability to locality and burden of avoiding

Utility- difficulty of preventing, social value, suitability to locality

**Looks like a negligence analysis

4 Rest 826(b)- "Pay and Stay" Unreasonableness test (gravity v. utility)- the harm caused by the conduct is serious and the financial burden of compensation for this and similar harm to others would not make the continuation of the conduct feasible. Under this view, it is possible that a D who can’t compensate is off the hook- if P could avoid injury or social utility is high.

5. Threshold/Jost view- has the interference crossed the threshold where the P shouldn’t have to bear it anymore or should get damages?

1. Private- does not require negligence, it is an improper use that injures land or right of a neighbor to use or enjoy land

2. Per Se- by reason of act, occupation or structure, is a nuisance at all times

3. Per Accidens- becomes a nuisance by reason of location or manner of construction or operation

4. Public- interferes with the rights of the general public, a private person has standing if they can show a unique harm

1. These are not nuisances

2. Lateral support imposes a duty on a neighboring land to provide the support that the subject parcel would need and receive under natural conditions.

3. Subjacent support refers to underneath as opposed to the sides. Issues of subjacent support arise when one person owns surface rights and other person owns some kind of subsurface rights.

1. Sic Utere Tou Alienum Non Laedes- each person should use their property so that it doesn’t infringe upon another’s use of their property.

2. Start by asking what is the cheapest way to avoid the problem and who should bear the cost.

3. Differences between trespass and nuisance-

*don’t need substantial injury in trespass

*there is liability notwithstanding the reasonableness of conduct in trespass, we weigh the reasonableness of the conduct in nuisance

*trespass laws only protect possessory interests

*trespass requires physical invasion

*in trespass, few parties will be damaged

4. Jurisdictions are split on whether an apprehension can be a nuisance.

5. If use is abnormally sensitive, it may prevent finding of nuisance. Ex. drive in and amusement park.

6. Spite Fence is a nuisance. Old CL said it wasn’t.

7. Aesthetic nuisances are generally not recognized. Ex. junk yards.

8. There is a cause of action for unreasonably cutting off a light source.

9. If you use threshold test to determine nuisance, then balance of equities is proper to determine injunction. Can’t use same balance test for both.

1. Let activity continue and have D pay Damages- maximum damages is the cost or value of their land,

2. Injunction- must balance the equities: P’s injuries vs. D’s injuries and the Public’s injuries

If we grant an injunction we can let the P chose whether they want to sell it and they can consider non-economic factors, and parties each pay what it is worth to them.

3. Continue nuisance, no relief.

4. Abate nuisance and P pays. (Del Webb).

1. Satisfy SOF- signed writing, description of land and statement of consideration

1. Appurtenant- benefits owner of easement in use of the land belonging to the owner of the easement. This is tied to the piece of land. Benefits and burdens pass automatically to the assignees of the land to which they are appurtenant.

2. In Gross-does not benefit the owner of the easement in the use of land belonging to the owner, but benefits the owner without regard to ownership of land. The benefit is not assignable- unless, the parties intend it to be and there is a commercial purpose for the easement.

3. Prescriptive Easement- openly, peaceably, continuously, under claim of right (adverse to the owner), with knowledge of acquiescence, for the statutory time.

4. Implied Reservation (by necessity)- TX- unity of ownership, necessity and necessity at time of severance.

5. Implied quasi easement- must be apparent and continuous with a reasonable expectation to continue after land is divided.

1. Willard v. First Church- the main issue is whether the grantor may in deeding real property to a person, effectively reserve an interest in the property to another- thereby creating an easement in favor of a third party. The old CL rule was that you couldn’t reserve an interest in property to a stranger to the title. The new rule is that we give effect to the intent of the grantor. CL is still majority today.

2. New rule gives effect to what the parties intended and keeps the deal equitable (because presumably, the price was discounted); old rule was eroded by various exceptions.

3. Balance the equities when the K was created before the new rule- you must balance the inequities and injustice that would result from refusing to give effect to the grantor’s intent, and that which might result from reliance on the old rule.

4. The easement exists at the time and under the condition of the property then

5. Othen v. Rosier- TX, implied reservation must begin with unity of ownership, necessity and necessity at the time of severance.

6. Public Trust Doctrine- acknowledges that the ownership, dominion and sovereignty over land flowed by tidal waters, which extend to the mean high water mark, is vested in the State in trust for the people. The people’s right includes- fishing, recreational activities, navigation, bathing, swimming. Dry sand is part of using the wet sand area.

7. Miller v. Lutheran Camp- appurtenant easements are transferable. Where the benefit is in gross, the benefit is not assignable. This was an in gross easement. But if the parties intend it to be assignable and the purpose is commercial it is assignable.

1. An easement- the more specific use of the space the more likely it is to be an easement, unlimited in time

2. A lease- the more specific the location, the more likely to be a lease, also periodic payments and limited in time

3. A license- based on the intent of parties, if right is exclusive, it is a license, irrevocable if relied upon (but not in TX, NY).

3. Quasi easement- an owner generally cannot make an easement over their own land, but when they sell it the law implies an easement when the owner benefits one part of his land by burdening another and then sells the land that is being burdened. Must be apparent and continuous with a reasonable expectation to continue after land is divided.

4. English rule- to reserve an easement, it must be absolutely necessary, and only endures for as long as necessary.

TX- unity of ownership, necessity and necessity at time of severance.

4. For the burden to run, the successor must have an estate of the same duration as the promisor.

2. Vertical Privity- between one of the covenanting parties and a successor in interest.

3. Privity requires identical tracts.

4. There is no privity with adverse possession

5. American view- if grantor grantee intended it to run, privity met

6. English view- narrow, wouldn’t be met in Moxhay

1. Restatement 3d- discards vertical privity requirement and instead draws a distinction between negative and affirmative covenants.

2. Negative covenants throw out privity requirements, treated like easements. Since no privity, runs with adverse possessors.

3. Doctrine- If the owner of 2 or more lots, so situated as to bear the relation, sells one with restrictions of benefit to the land retained, the servitude becomes mutual, and during the period of restraint, the owner of the lot or lots can do nothing forbidden to the owner of the lot sold.

1. A covenant that imposes a burden upon an interest in the land which increases the value of a different interest in the same or related land.

2. Example- an annual charge for community fees (a covenant to pay a sum of money does not touch and concern the land).

1. Caullett v. Stanley- where the benefit is personal (it does not touch and concern the land), it is in gross, the burden does not run with the land.

1. Defined- determinable fee simple, fee simple subject to condition subsequent, and fee simple subject to executory limitations- may be employed to control land use.

2. Differs from a servitude- the remedy for breach of a defeasible fee is forfeiture. The remedy for the breach of a servitude is damages, injunction, or enforcement of a lien.

2. Hill v. Community of Damien- the restrictive covenant at issue is a single-family restriction. The issue is whether this pertains to a group home for aids patients. This home is designed to provide family structure and this was the traditional role of family. All of the things necessary to operating a group home will not make it commercial. Single family is not defined in the covenant. Extra traffic is irrelevant.

3. Fair Housing Act- it is not true that a facially neutral restriction applied equally will not implicate FHA. Disparate impact occurs when the restriction actually or predictably results in discrimination or has a discriminatory effect.

4. Reasonable Accommodation- changing some rule that is generally applicable so as to make its burden less onerous on the handicapped person. It is not reasonable if- it requires fundamental alteration or imposes an undue financial burden on the D.

5. Racially Restrictive Covenants- on their own, there is no 14th amendment violation. However, when you go to court to enforce them you are bringing in state action, which makes it a violation.

6. Coop vs. condo- in a condo the residents each hold title, in a coop the title is held by the building as a corporation. Residents own long term leases that are renewable. The residents are the owners of the corporation. There is one blanket mortgage and everyone shares the cost.

1. Legislative land use controls to promote health, safety and the general welfare of the public: use, density, area, set backs, height, driveways, parking, including or excluding, increasing and decreasing value (very political).

2. This is done at the state level through enabling acts and comprehensive plans or zoning maps.

a. Enabling acts must give guidance, can be general

3. City council

4. Zoning Board- grants variances

5. Zoning Commission and inspectors

6. Non-conforming uses will usually get grandfathered in, sometimes they can be amoritized- but Supreme Ct of Penn said that amoritization is per se unconstitutional unless it is a nuisance, its abandoned or eminent domain is exercised.

1. Test- it must be clearly arbitrary and unreasonable, having no substantial relationship to public health, safety, morals, or the general welfare.

2. Entire Act- look at the validity of the entire act, not just how one innocent industry is affected.

1. To abate a nuisance is not a taking and is a valid exercise of police power.

2. Euclidean Zoning- segregation of uses. It has a strong basis in police power. The assumption is that healthy living needs open spaces.

1. Variance- permits use in a manner, which is prohibited, a constitutional escape valve to the takings clause, adjudicative in nature.

b. Personal infirmity is not undue hardship.

2. Exception- permits use conditionally, ordinance expressly permits use and is not necessarily incompatible. Board must be given checklist of factors- it cannot be at the whim of the board.

3. Amendments to the Zone- legislative act, standard on review is arbitrary and capricious.

5. Floating Zone- a zone classification authorized for future use but not placed on the zoning map until its use at a particular location is approved by the governing body. This is like a judicial act. You look at the same factors you would examine if this were original zoning. Burden is on the person seeking change to show the public need for change and the public’s interest will be served by change. This position was retreated later by Oregon cts- in favor of more deference to the legislature and other branches of government.

6. Arnel bright line rules

a. zoning ordinances are subject to initiatives

b. zoning ordinances are subject to referendums

c. zoning ordinances do not require specific findings

1. Mt Laurel I- trying to keep out people who were bad for the tax base.

3. Cluster Zone- flexibility device, whereby a developer is allowed to construct dwellings in a pattern not in literal compliance with area restrictions. It relieves repetitive patterns, and may increase property value.

4. PUD- planned unit development- instead of being detailed and confined to specified districts by local legislation in advance, it is determined by K or deal ad to each development between the developer and the municipal authority under broad guidelines, laid down by the state enabling act.

Stress is on regulation and density and permitted mixture of uses within the same area, including various kinds of commercial or industrial uses….the idea may be thought of as the creation of new towns.

5. PARC- planned adult retirement community- limits on age, number of children and residents per household.

6. Contrast Inclusionary Zoning- designed to require or encourage developers to supply low income and moderate housing by offering density incentives and waivers.

7. Growth Controls are mostly upheld. Building moratoriums are put in place. Must obtain a certain amount of points before you can build. This causes priced to go up- homeowners like this and they have power in small cities and in large cities the real estate investors have power.

1. Commons v. Westwood Zoning Board- 2 possible remedies: board could pay him for the land if the zoning variance is denied, variance could be denied conditional on the neighbors paying FMV for the land. FMV would be determined assuming that a home could be built on the land.

2. When restrictions are on use it is harder to get a variance.

3. Hardship does not include personal infirmity.

4. Contract and Conditional rezoning- Collard v. Village of Flower Hill

5. What you can’t do through zoning, you can do with restrictive covenants.

7. Tiebout’s theory- zoning is inefficient because residents can vote with their feet. Zoning complicates housing and commuting and distributes wealth away from the people with low incomes. It also creates spillover effects between communities that result in inefficiency. Competitions between communities would enhance efficiency. This theory requires that everyone pay a head tax.

8. Is Zoning Good?

9. Problems with enforcing deed restrictions in Houston.