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Great Property Law Checklist

Acquisition 1. By Capture: 2. the first person to take possession of a thing owns it – first in time rule (Johnson v. M’Intosh) 3. Person can’t claim possession by pursuing – must morally wound it or do something to show imminent capture (Pierson v. Post) 4. Competitior can interfere with another person’s attempt to capture something only if he intends to capture it himself. (Keeble v. Heckeringill) 5. Captor must acquire physical control over the animal absent a custom to the contrary (Ghen v. Rich) 6. Escaped wild animals are not “possessed” by owner of land unless second captor has notice that the animal has escaped. 7. If actor takes significant but incomplete steps to achieve possession and is then interrupted by the unlawful acts of others, he has interest in the property (but not whole) (Popov v. Hayashi) 8. Caves have rule of columns rather than capture (Marengo Caves) 9. Oil and gas have rule of capture. 10. By Creation: 11. Common law allows for some limited copying and imitation with some exceptions to avoid monopolies and encourage competition. (Cheney Brothers v. Doris Silk Co., Chanel v. Smith) 12. Copying and imitation are allowed 13. Unfair competition and stealing are not allowed (INS v. AP) 14. Transferrability in market does not make something property. (Moore v. Regents of California) Adverse Possession 1. If a landowner does not eject an adverse possessor w/in the statutory period, the owner is barred forever. Possessor gets title. 2. Mix of statute and common law. 3. Actual Entry giving possession 4. Open and Notorious 5. Adverse and Under a Claim of Right: (Van Valkenburgh v. Lutz) a. Objective Test – intent is irrelevant – focus on actions to objective third person b. Good Faith Std. – mistake in title is okay for adverse possession c. Aggressive Trespass Std. – “I knew I didn’t own it but I wanted to.” 6. Boundary Disputes: Manillo v. Gorksy 7. Equitable relief for mistaken improvers is only available to those who act in good faith and improve by mistake. (Damages) d. Otherwise, might have to take the whole thing down – Pile v. Pedrick 8. Continuous uninterrupted possession: only requires the degree of occupancy and use that the average owner would make of the property. 9. Of Chattels: (O’Keefe v. Snyder) Rights of Owners 1. Right to Use – limited by nuisance and govt. zoning 2. Right to Transfer – encourage transferring property to highest valued user 3. Right to Exclude – If A wants to enter B’s land, should bargain for it. (Jacques v. Steenburg Homes, Pile v. Pedrick, Everman v. Mercantile Co. Possessory Estates: 1. No new estates may be created – stick to fee simple, fee tail, or life estate Whiton v. Johnson 2. Fee Simple Absolute – no limitations allowed. (Mt. Brow Lodge v. Toscano) 3. Fee Simple Determinable – “to school so long as used for school purposes” 4. Fee Simple Subject to Condition Subsequent – “but if”…”then O has a right to reenter”. 5. Life Estate: (Baker v. Weedon) 6. Rules Against Restraints on Alienation: total restraint on fee simple in any form is void. (Shelley v. Kramer) Concurrent Ownership and Marital Rights 1. Tenancy in Common – 2. Joint Tenancy 3. A lease for land granted by one member of a joint tenancy can’t be abrogated by the other member. (Swartzbaugh v. Sampson) 4. Tenancy by the Entirety (Marriage) a. Rights of tenants during marriage (Hawaii rule – Sawada v. Endo) b. Divorce (In RE Marriage of Graham) i. (Elkus v. Elkus) 5. No co-tenant may exclude another co-tenant from any part of the property a. If you show ouster, can get reasonable rental value (Spiller v. Mackareth) b. Accounting for rents received from a third party must be shared equally with other tenants if the income exceeds the collecting co-tenant’s share. (Schwartzbaugh v. Sampson) c. Exploiting natural resources – co-tenants get share of profits. 6. Any tenant can ask for partition in kind or in sale. (Delfino v. Vealencis) 7. But if the sale as a whole is more valuable than a sale in parts, court might enforce whole sale (Johnson v. Hendrickson) Landlord and Tenant: 1. Landlord’s Duty not to Interfere with Tenant’s Quiet Enjoyment: (Reste Realty Corp.) a. Interference must be landlord’s fault b. Look at purposes of the lease, foreseeability of interference, potential duration of the interference, nature and degree of the harm caused, and availability of the means to abate it. 2. Remedies for Breach: a. Pay for premises as is rule: Damages to Tenant=Agreed Rent – value of the apt. in bad condition. (So if LL is charging a proportionate amount for the bad condition, tenant won’t get anything.) b. Loss-of-bargain rule: Damages=(fair market value of apt. if up to par – what it’s worth now) [Hilder v. St. Peter] Easements 1. by express grant 2. by reservation 3. by implication a. easement from existing use (Van Sandt v. Royster) b. Easement by necessity: (Othens v. Rosier) 4. by prescription: open and notorious, adverse and continuous and uninterrupted 5. by estoppel (Holbrook v. Taylor) 6. Public easement: (Matthews v. Bayhead) Real Covenants – Equitable Servitudes 1. Implied from general plan (Sanborn v. McLean) 2. Show: intent, touch and concern, notice (Neponsit must burden or benefit a party in the physical enjoyment of the land. Today, some negative covenants touch and concern the land if they merely enhance the value of the land. 3. Notice can be constructive or inquiry notice (Sanborn v. McLean) Termination of Covenants and Servitudes: Common Interest Communities Nuisance: 1. Intentional Nuisance: Conduct is unreasonable if the gravity of the harm outweighs the utility of the actor’s conduct (Boomer v. Atlantic Cement) 2. Coming to the nuisance is a factor in balance but not determinative bar. (Spur v. Del Web) 3. Coase theorem – give to highest valued user.

College/University: Bar Exam

Date Added: 03 February 2010

0.0

0 Vote(s)

Great Property Law Checklist

Acquisition 1. By Capture: 2. the first person to take possession of a thing owns it – first in time rule (Johnson v. M’Intosh) 3. Person can’t claim possession by pursuing – must morally wound it or do something to show imminent capture (Pierson v. Post) 4. Competitior can interfere with another person’s attempt to capture something only if he intends to capture it himself. (Keeble v. Heckeringill) 5. Captor must acquire physical control over the animal absent a custom to the contrary (Ghen v. Rich) 6. Escaped wild animals are not “possessed” by owner of land unless second captor has notice that the animal has escaped. 7. If actor takes significant but incomplete steps to achieve possession and is then interrupted by the unlawful acts of others, he has interest in the property (but not whole) (Popov v. Hayashi) 8. Caves have rule of columns rather than capture (Marengo Caves) 9. Oil and gas have rule of capture. 10. By Creation: 11. Common law allows for some limited copying and imitation with some exceptions to avoid monopolies and encourage competition. (Cheney Brothers v. Doris Silk Co., Chanel v. Smith) 12. Copying and imitation are allowed 13. Unfair competition and stealing are not allowed (INS v. AP) 14. Transferrability in market does not make something property. (Moore v. Regents of California) Adverse Possession 1. If a landowner does not eject an adverse possessor w/in the statutory period, the owner is barred forever. Possessor gets title. 2. Mix of statute and common law. 3. Actual Entry giving possession 4. Open and Notorious 5. Adverse and Under a Claim of Right: (Van Valkenburgh v. Lutz) a. Objective Test – intent is irrelevant – focus on actions to objective third person b. Good Faith Std. – mistake in title is okay for adverse possession c. Aggressive Trespass Std. – “I knew I didn’t own it but I wanted to.” 6. Boundary Disputes: Manillo v. Gorksy 7. Equitable relief for mistaken improvers is only available to those who act in good faith and improve by mistake. (Damages) d. Otherwise, might have to take the whole thing down – Pile v. Pedrick 8. Continuous uninterrupted possession: only requires the degree of occupancy and use that the average owner would make of the property. 9. Of Chattels: (O’Keefe v. Snyder) Rights of Owners 1. Right to Use – limited by nuisance and govt. zoning 2. Right to Transfer – encourage transferring property to highest valued user 3. Right to Exclude – If A wants to enter B’s land, should bargain for it. (Jacques v. Steenburg Homes, Pile v. Pedrick, Everman v. Mercantile Co. Possessory Estates: 1. No new estates may be created – stick to fee simple, fee tail, or life estate Whiton v. Johnson 2. Fee Simple Absolute – no limitations allowed. (Mt. Brow Lodge v. Toscano) 3. Fee Simple Determinable – “to school so long as used for school purposes” 4. Fee Simple Subject to Condition Subsequent – “but if”…”then O has a right to reenter”. 5. Life Estate: (Baker v. Weedon) 6. Rules Against Restraints on Alienation: total restraint on fee simple in any form is void. (Shelley v. Kramer) Concurrent Ownership and Marital Rights 1. Tenancy in Common – 2. Joint Tenancy 3. A lease for land granted by one member of a joint tenancy can’t be abrogated by the other member. (Swartzbaugh v. Sampson) 4. Tenancy by the Entirety (Marriage) a. Rights of tenants during marriage (Hawaii rule – Sawada v. Endo) b. Divorce (In RE Marriage of Graham) i. (Elkus v. Elkus) 5. No co-tenant may exclude another co-tenant from any part of the property a. If you show ouster, can get reasonable rental value (Spiller v. Mackareth) b. Accounting for rents received from a third party must be shared equally with other tenants if the income exceeds the collecting co-tenant’s share. (Schwartzbaugh v. Sampson) c. Exploiting natural resources – co-tenants get share of profits. 6. Any tenant can ask for partition in kind or in sale. (Delfino v. Vealencis) 7. But if the sale as a whole is more valuable than a sale in parts, court might enforce whole sale (Johnson v. Hendrickson) Landlord and Tenant: 1. Landlord’s Duty not to Interfere with Tenant’s Quiet Enjoyment: (Reste Realty Corp.) a. Interference must be landlord’s fault b. Look at purposes of the lease, foreseeability of interference, potential duration of the interference, nature and degree of the harm caused, and availability of the means to abate it. 2. Remedies for Breach: a. Pay for premises as is rule: Damages to Tenant=Agreed Rent – value of the apt. in bad condition. (So if LL is charging a proportionate amount for the bad condition, tenant won’t get anything.) b. Loss-of-bargain rule: Damages=(fair market value of apt. if up to par – what it’s worth now) [Hilder v. St. Peter] Easements 1. by express grant 2. by reservation 3. by implication a. easement from existing use (Van Sandt v. Royster) b. Easement by necessity: (Othens v. Rosier) 4. by prescription: open and notorious, adverse and continuous and uninterrupted 5. by estoppel (Holbrook v. Taylor) 6. Public easement: (Matthews v. Bayhead) Real Covenants – Equitable Servitudes 1. Implied from general plan (Sanborn v. McLean) 2. Show: intent, touch and concern, notice (Neponsit must burden or benefit a party in the physical enjoyment of the land. Today, some negative covenants touch and concern the land if they merely enhance the value of the land. 3. Notice can be constructive or inquiry notice (Sanborn v. McLean) Termination of Covenants and Servitudes: Common Interest Communities Nuisance: 1. Intentional Nuisance: Conduct is unreasonable if the gravity of the harm outweighs the utility of the actor’s conduct (Boomer v. Atlantic Cement) 2. Coming to the nuisance is a factor in balance but not determinative bar. (Spur v. Del Web) 3. Coase theorem – give to highest valued user.

College/University: Bar Exam

Date Added: 03 February 2010

0.0

0 Vote(s)

Property Law Outline

Law school outline, property law, Acquisition 1. By Capture: 2. the first person to take possession of a thing owns it – first in time rule (Johnson v. M’Intosh) 3. Person can’t claim possession by pursuing – must morally wound it or do something to show imminent capture (Pierson v. Post) 4. Competitior can interfere with another person’s attempt to capture something only if he intends to capture it himself. (Keeble v. Heckeringill) 5. Captor must acquire physical control over the animal absent a custom to the contrary (Ghen v. Rich) 6. Escaped wild animals are not “possessed” by owner of land unless second captor has notice that the animal has escaped. 7. If actor takes significant but incomplete steps to achieve possession and is then interrupted by the unlawful acts of others, he has interest in the property (but not whole) (Popov v. Hayashi) 8. Caves have rule of columns rather than capture (Marengo Caves) 9. Oil and gas have rule of capture. 10. By Creation: 11. Common law allows for some limited copying and imitation with some exceptions to avoid monopolies and encourage competition. (Cheney Brothers v. Doris Silk Co., Chanel v. Smith) 12. Copying and imitation are allowed 13. Unfair competition and stealing are not allowed (INS v. AP) 14. Transferrability in market does not make something property. (Moore v. Regents of California) Adverse Possession 1. If a landowner does not eject an adverse possessor w/in the statutory period, the owner is barred forever. Possessor gets title. 2. Mix of statute and common law. 3. Actual Entry giving possession 4. Open and Notorious 5. Adverse and Under a Claim of Right: (Van Valkenburgh v. Lutz) a. Objective Test – intent is irrelevant – focus on actions to objective third person b. Good Faith Std. – mistake in title is okay for adverse possession c. Aggressive Trespass Std. – “I knew I didn’t own it but I wanted to.” 6. Boundary Disputes: Manillo v. Gorksy 7. Equitable relief for mistaken improvers is only available to those who act in good faith and improve by mistake. (Damages) d. Otherwise, might have to take the whole thing down – Pile v. Pedrick 8. Continuous uninterrupted possession: only requires the degree of occupancy and use that the average owner would make of the property. 9. Of Chattels: (O’Keefe v. Snyder) Rights of Owners 1. Right to Use – limited by nuisance and govt. zoning 2. Right to Transfer – encourage transferring property to highest valued user 3. Right to Exclude – If A wants to enter B’s land, should bargain for it. (Jacques v. Steenburg Homes, Pile v. Pedrick, Everman v. Mercantile Co. Possessory Estates: 1. No new estates may be created – stick to fee simple, fee tail, or life estate Whiton v. Johnson 2. Fee Simple Absolute – no limitations allowed. (Mt. Brow Lodge v. Toscano) 3. Fee Simple Determinable – “to school so long as used for school purposes” 4. Fee Simple Subject to Condition Subsequent – “but if”…”then O has a right to reenter”. 5. Life Estate: (Baker v. Weedon) 6. Rules Against Restraints on Alienation: total restraint on fee simple in any form is void. (Shelley v. Kramer) Concurrent Ownership and Marital Rights 1. Tenancy in Common – 2. Joint Tenancy 3. A lease for land granted by one member of a joint tenancy can’t be abrogated by the other member. (Swartzbaugh v. Sampson) 4. Tenancy by the Entirety (Marriage) a. Rights of tenants during marriage (Hawaii rule – Sawada v. Endo) b. Divorce (In RE Marriage of Graham) i. (Elkus v. Elkus) 5. No co-tenant may exclude another co-tenant from any part of the property a. If you show ouster, can get reasonable rental value (Spiller v. Mackareth) b. Accounting for rents received from a third party must be shared equally with other tenants if the income exceeds the collecting co-tenant’s share. (Schwartzbaugh v. Sampson) c. Exploiting natural resources – co-tenants get share of profits. 6. Any tenant can ask for partition in kind or in sale. (Delfino v. Vealencis) 7. But if the sale as a whole is more valuable than a sale in parts, court might enforce whole sale (Johnson v. Hendrickson) Landlord and Tenant: 1. Landlord’s Duty not to Interfere with Tenant’s Quiet Enjoyment: (Reste Realty Corp.) a. Interference must be landlord’s fault b. Look at purposes of the lease, foreseeability of interference, potential duration of the interference, nature and degree of the harm caused, and availability of the means to abate it. 2. Remedies for Breach: a. Pay for premises as is rule: Damages to Tenant=Agreed Rent – value of the apt. in bad condition. (So if LL is charging a proportionate amount for the bad condition, tenant won’t get anything.) b. Loss-of-bargain rule: Damages=(fair market value of apt. if up to par – what it’s worth now) [Hilder v. St. Peter] Easements 1. by express grant 2. by reservation 3. by implication a. easement from existing use (Van Sandt v. Royster) b. Easement by necessity: (Othens v. Rosier) 4. by prescription: open and notorious, adverse and continuous and uninterrupted 5. by estoppel (Holbrook v. Taylor) 6. Public easement: (Matthews v. Bayhead) Real Covenants – Equitable Servitudes 1. Implied from general plan (Sanborn v. McLean) 2. Show: intent, touch and concern, notice (Neponsit must burden or benefit a party in the physical enjoyment of the land. Today, some negative covenants touch and concern the land if they merely enhance the value of the land. 3. Notice can be constructive or inquiry notice (Sanborn v. McLean) Termination of Covenants and Servitudes: Common Interest Communities Nuisance: 1. Intentional Nuisance: Conduct is unreasonable if the gravity of the harm outweighs the utility of the actor’s conduct (Boomer v. Atlantic Cement) 2. Coming to the nuisance is a factor in balance but not determinative bar. (Spur v. Del Web) 3. Coase theorem – give to highest valued user.

College/University: The John Marshall Law School--Chicago

Date Added: 03 February 2010

0.0

0 Vote(s)

Great Property Law Checklist

"law school outline"; "property law school outline" Acquisition 1. By Capture: 2. the first person to take possession of a thing owns it – first in time rule (Johnson v. M’Intosh) 3. Person can’t claim possession by pursuing – must morally wound it or do something to show imminent capture (Pierson v. Post) 4. Competitior can interfere with another person’s attempt to capture something only if he intends to capture it himself. (Keeble v. Heckeringill) 5. Captor must acquire physical control over the animal absent a custom to the contrary (Ghen v. Rich) 6. Escaped wild animals are not “possessed” by owner of land unless second captor has notice that the animal has escaped. 7. If actor takes significant but incomplete steps to achieve possession and is then interrupted by the unlawful acts of others, he has interest in the property (but not whole) (Popov v. Hayashi) 8. Caves have rule of columns rather than capture (Marengo Caves) 9. Oil and gas have rule of capture. 10. By Creation: 11. Common law allows for some limited copying and imitation with some exceptions to avoid monopolies and encourage competition. (Cheney Brothers v. Doris Silk Co., Chanel v. Smith) 12. Copying and imitation are allowed 13. Unfair competition and stealing are not allowed (INS v. AP) 14. Transferrability in market does not make something property. (Moore v. Regents of California) Adverse Possession 1. If a landowner does not eject an adverse possessor w/in the statutory period, the owner is barred forever. Possessor gets title. 2. Mix of statute and common law. 3. Actual Entry giving possession 4. Open and Notorious 5. Adverse and Under a Claim of Right: (Van Valkenburgh v. Lutz) a. Objective Test – intent is irrelevant – focus on actions to objective third person b. Good Faith Std. – mistake in title is okay for adverse possession c. Aggressive Trespass Std. – “I knew I didn’t own it but I wanted to.” 6. Boundary Disputes: Manillo v. Gorksy 7. Equitable relief for mistaken improvers is only available to those who act in good faith and improve by mistake. (Damages) d. Otherwise, might have to take the whole thing down – Pile v. Pedrick 8. Continuous uninterrupted possession: only requires the degree of occupancy and use that the average owner would make of the property. 9. Of Chattels: (O’Keefe v. Snyder) Rights of Owners 1. Right to Use – limited by nuisance and govt. zoning 2. Right to Transfer – encourage transferring property to highest valued user 3. Right to Exclude – If A wants to enter B’s land, should bargain for it. (Jacques v. Steenburg Homes, Pile v. Pedrick, Everman v. Mercantile Co. Possessory Estates: 1. No new estates may be created – stick to fee simple, fee tail, or life estate Whiton v. Johnson 2. Fee Simple Absolute – no limitations allowed. (Mt. Brow Lodge v. Toscano) 3. Fee Simple Determinable – “to school so long as used for school purposes” 4. Fee Simple Subject to Condition Subsequent – “but if”…”then O has a right to reenter”. 5. Life Estate: (Baker v. Weedon) 6. Rules Against Restraints on Alienation: total restraint on fee simple in any form is void. (Shelley v. Kramer) Concurrent Ownership and Marital Rights 1. Tenancy in Common – 2. Joint Tenancy 3. A lease for land granted by one member of a joint tenancy can’t be abrogated by the other member. (Swartzbaugh v. Sampson) 4. Tenancy by the Entirety (Marriage) a. Rights of tenants during marriage (Hawaii rule – Sawada v. Endo) b. Divorce (In RE Marriage of Graham) i. (Elkus v. Elkus) 5. No co-tenant may exclude another co-tenant from any part of the property a. If you show ouster, can get reasonable rental value (Spiller v. Mackareth) b. Accounting for rents received from a third party must be shared equally with other tenants if the income exceeds the collecting co-tenant’s share. (Schwartzbaugh v. Sampson) c. Exploiting natural resources – co-tenants get share of profits. 6. Any tenant can ask for partition in kind or in sale. (Delfino v. Vealencis) 7. But if the sale as a whole is more valuable than a sale in parts, court might enforce whole sale (Johnson v. Hendrickson) Landlord and Tenant: 1. Landlord’s Duty not to Interfere with Tenant’s Quiet Enjoyment: (Reste Realty Corp.) a. Interference must be landlord’s fault b. Look at purposes of the lease, foreseeability of interference, potential duration of the interference, nature and degree of the harm caused, and availability of the means to abate it. 2. Remedies for Breach: a. Pay for premises as is rule: Damages to Tenant=Agreed Rent – value of the apt. in bad condition. (So if LL is charging a proportionate amount for the bad condition, tenant won’t get anything.) b. Loss-of-bargain rule: Damages=(fair market value of apt. if up to par – what it’s worth now) [Hilder v. St. Peter] Easements 1. by express grant 2. by reservation 3. by implication a. easement from existing use (Van Sandt v. Royster) b. Easement by necessity: (Othens v. Rosier) 4. by prescription: open and notorious, adverse and continuous and uninterrupted 5. by estoppel (Holbrook v. Taylor) 6. Public easement: (Matthews v. Bayhead) Real Covenants – Equitable Servitudes 1. Implied from general plan (Sanborn v. McLean) 2. Show: intent, touch and concern, notice (Neponsit must burden or benefit a party in the physical enjoyment of the land. Today, some negative covenants touch and concern the land if they merely enhance the value of the land. 3. Notice can be constructive or inquiry notice (Sanborn v. McLean) Termination of Covenants and Servitudes: Common Interest Communities Nuisance: 1. Intentional Nuisance: Conduct is unreasonable if the gravity of the harm outweighs the utility of the actor’s conduct (Boomer v. Atlantic Cement) 2. Coming to the nuisance is a factor in balance but not determinative bar. (Spur v. Del Web) 3. Coase theorem – give to highest valued user.

College/University: Bar Exam

Date Added: 03 February 2010

0.0

0 Vote(s)

Property Law School Outline

"law school outline"; "property law school outline"; Acquisition 1. By Capture: 2. the first person to take possession of a thing owns it – first in time rule (Johnson v. M’Intosh) 3. Person can’t claim possession by pursuing – must morally wound it or do something to show imminent capture (Pierson v. Post) 4. Competitior can interfere with another person’s attempt to capture something only if he intends to capture it himself. (Keeble v. Heckeringill) 5. Captor must acquire physical control over the animal absent a custom to the contrary (Ghen v. Rich) 6. Escaped wild animals are not “possessed” by owner of land unless second captor has notice that the animal has escaped. 7. If actor takes significant but incomplete steps to achieve possession and is then interrupted by the unlawful acts of others, he has interest in the property (but not whole) (Popov v. Hayashi) 8. Caves have rule of columns rather than capture (Marengo Caves) 9. Oil and gas have rule of capture. 10. By Creation: 11. Common law allows for some limited copying and imitation with some exceptions to avoid monopolies and encourage competition. (Cheney Brothers v. Doris Silk Co., Chanel v. Smith) 12. Copying and imitation are allowed 13. Unfair competition and stealing are not allowed (INS v. AP) 14. Transferrability in market does not make something property. (Moore v. Regents of California) Adverse Possession 1. If a landowner does not eject an adverse possessor w/in the statutory period, the owner is barred forever. Possessor gets title. 2. Mix of statute and common law. 3. Actual Entry giving possession 4. Open and Notorious 5. Adverse and Under a Claim of Right: (Van Valkenburgh v. Lutz) a. Objective Test – intent is irrelevant – focus on actions to objective third person b. Good Faith Std. – mistake in title is okay for adverse possession c. Aggressive Trespass Std. – “I knew I didn’t own it but I wanted to.” 6. Boundary Disputes: Manillo v. Gorksy 7. Equitable relief for mistaken improvers is only available to those who act in good faith and improve by mistake. (Damages) d. Otherwise, might have to take the whole thing down – Pile v. Pedrick 8. Continuous uninterrupted possession: only requires the degree of occupancy and use that the average owner would make of the property. 9. Of Chattels: (O’Keefe v. Snyder) Rights of Owners 1. Right to Use – limited by nuisance and govt. zoning 2. Right to Transfer – encourage transferring property to highest valued user 3. Right to Exclude – If A wants to enter B’s land, should bargain for it. (Jacques v. Steenburg Homes, Pile v. Pedrick, Everman v. Mercantile Co. Possessory Estates: 1. No new estates may be created – stick to fee simple, fee tail, or life estate Whiton v. Johnson 2. Fee Simple Absolute – no limitations allowed. (Mt. Brow Lodge v. Toscano) 3. Fee Simple Determinable – “to school so long as used for school purposes” 4. Fee Simple Subject to Condition Subsequent – “but if”…”then O has a right to reenter”. 5. Life Estate: (Baker v. Weedon) 6. Rules Against Restraints on Alienation: total restraint on fee simple in any form is void. (Shelley v. Kramer) Concurrent Ownership and Marital Rights 1. Tenancy in Common – 2. Joint Tenancy 3. A lease for land granted by one member of a joint tenancy can’t be abrogated by the other member. (Swartzbaugh v. Sampson) 4. Tenancy by the Entirety (Marriage) a. Rights of tenants during marriage (Hawaii rule – Sawada v. Endo) b. Divorce (In RE Marriage of Graham) i. (Elkus v. Elkus) 5. No co-tenant may exclude another co-tenant from any part of the property a. If you show ouster, can get reasonable rental value (Spiller v. Mackareth) b. Accounting for rents received from a third party must be shared equally with other tenants if the income exceeds the collecting co-tenant’s share. (Schwartzbaugh v. Sampson) c. Exploiting natural resources – co-tenants get share of profits. 6. Any tenant can ask for partition in kind or in sale. (Delfino v. Vealencis) 7. But if the sale as a whole is more valuable than a sale in parts, court might enforce whole sale (Johnson v. Hendrickson) Landlord and Tenant: 1. Landlord’s Duty not to Interfere with Tenant’s Quiet Enjoyment: (Reste Realty Corp.) a. Interference must be landlord’s fault b. Look at purposes of the lease, foreseeability of interference, potential duration of the interference, nature and degree of the harm caused, and availability of the means to abate it. 2. Remedies for Breach: a. Pay for premises as is rule: Damages to Tenant=Agreed Rent – value of the apt. in bad condition. (So if LL is charging a proportionate amount for the bad condition, tenant won’t get anything.) b. Loss-of-bargain rule: Damages=(fair market value of apt. if up to par – what it’s worth now) [Hilder v. St. Peter] Easements 1. by express grant 2. by reservation 3. by implication a. easement from existing use (Van Sandt v. Royster) b. Easement by necessity: (Othens v. Rosier) 4. by prescription: open and notorious, adverse and continuous and uninterrupted 5. by estoppel (Holbrook v. Taylor) 6. Public easement: (Matthews v. Bayhead) Real Covenants – Equitable Servitudes 1. Implied from general plan (Sanborn v. McLean) 2. Show: intent, touch and concern, notice (Neponsit must burden or benefit a party in the physical enjoyment of the land. Today, some negative covenants touch and concern the land if they merely enhance the value of the land. 3. Notice can be constructive or inquiry notice (Sanborn v. McLean) Termination of Covenants and Servitudes: Common Interest Communities Nuisance: 1. Intentional Nuisance: Conduct is unreasonable if the gravity of the harm outweighs the utility of the actor’s conduct (Boomer v. Atlantic Cement) 2. Coming to the nuisance is a factor in balance but not determinative bar. (Spur v. Del Web) 3. Coase theorem – give to highest valued user.

College/University: The John Marshall Law School--Chicago

Date Added: 03 February 2010

0.0

0 Vote(s)