property law: april 15 2010 class notes.

land use in the form of equitable servitude:
restrictions and controls of common interest entities and what those interests over the group can be.
* internal fees/ taxes
* restriction to behaviours and life choices
* restriction to use of land (aesthetic regulations,
* deciding who may live in the community


zoning.
is this the kind of authority that we have given our governments?
euclidean zoning

village of euclid v. ambler realty 272 US
the village of euclid had a zoning system. ambler decided to challenge under the 14th amendment: the land i own is more valuable as industrial land, but the use zones don't allow industrial use and so you have taken my property by diminishing its value (this is kind of like the south carolina beach front reclamation case)
what else could ambler do to reclaim the value and use on its property? it could have asked the city for a zoning variance
why didn't ambler do this? want the constitutional issue decided
wouldn't they have been in a better position if they had applied for a variance
the entire scheme of having to check with the gov't before use is an element of the lack of DP under the law.

con -- deprevation of property in violation of 14th amd't, or of just compensation under 5th amd't
pro -- the burden is not so great, there is a DP exception of the variance; it is an extension of the police power to protect citizen's health, wealth and privacy

          the legislature is protecting the privileges of the residents of the community who might be affected by non residential uses of neighboring land.
so what's the dispute? you have the right to enjoy your own property until it burdens someone else's use of their property
how does that work in this situation? the residents who want to use their land residentially would be burdened by the industrial use of the land and the interest in their property would be impaired (see H1)
what's the opposite argument? you're allowing residents to live here is burdening my use of this land, which is so perfectly made for industrial activity, and you
who gets to decide??? why not say landowners get to decide? why not say the market gets to decide? what's wrong with letting the market sort out these disputes?

land use exists to separate and distinguish.

why not combine the residential, suburban and industrial uses of lands? why not impose
what is the issue of fire and traffic in this case? the children!! think of the children!!

what do we need to save the children?
- traffic regulations,
the zoning ordinance, by restricting these traffic and industrial uses, improve the environment for children. and what is the best for the children?
- single family home (U-1): all else is in service to that
- U2 is also a residential zone... two-family homes
- U3 is apartment buildings
what's the problem with putting all the residential properties together? because apt's are "parasites" and they "soak up the sun" and create noise and increased business, impair safety... density brings danger
if the guiding principle is that you must use your land so as to not injure another's use of his land, and we take as a measure against injury of the single-family home, it is inherently bad because

the single family home: why do we let the single family homeowners decide?
there are values that are given up by moving industry very far from residences, as well.

why can't we look to the judiciary branch to

how do weigh the interests of the community against those of the private landowner? in equity, there's not enough

where have we drawn a distinction between the system of rules and the application of those rules to an individual? nahrstedt: where the court said, the rule doesn't take into account your individual experiences, we're going to look at the rule as to its effect on the community as a whole and defer to the community's ability/desire to govern itself and give it the benefit of the doubt.

here, the community is the state via police power and it has given the village of euclid the power to enact a zoning ordinance, and the court says it's not its job to have to regulate balancing of those interests in the community. that's what legislatures do. this is a separation of powers problem.

the only question we have to ask is if the system of restrictions is reasonable v. arbitrary, just as in nahrstedt. justice stevens comes up with a lot of reasons... if you can come up with those reasons, then the zoning is probably ok. these are the days before strict scrutiny and rational basis, but this reasoning is closest to rational basis.

and so, now we have this...

is this ok that we set up our communities this way on purpose?

compare robert moses and jane jacobs, and the argument that saved greenwich village.

zoning ordinances reflect the attitudes of the community, and what we want our physical world to look like. after euclid, it is clear: these discussions do not take place in the courts, they take place in the community and are enacted through the legislature.

this can lead to problems and limitiations on use however. problems impacted by circumstances not covered by the zoning itself. but there are two possibilities not in line with the zoning ordinances:
1. variance.
2. forebearance, such as grandfathering in zoning ordinances or permitting certain uses neither permitted nor forbidden to continue/begin if certain conditions are met
3. individual dispensation, as we will see in commons...

commons v. westwood zoning board of adjustment

the commons own a parcel of land but the zoning ordinance says that you can't own a home on a parcel of land under a certain size. there also has to be a certain frontage for what faces on the street. the lot is just too small for a house. the commons try to sell the land and that doesn't work. the neighbors aren't willing to sell to enlarge the property. the neighbors won't buy at a fair price. then they petition for a variance, stating an established hardship and the city zoning board finds that a) the commons didn't establish the necessary hardship and b) granting them a variance would substantially impair the intent/purpose of the zone planning because they say so. the commons appeal to the new jersey supreme court...

state v. shack is an NJ case
NJ coalition against the war case
public dust trust case
... NJ is a hotbed of progressive judicial rule

the court looks at the statute and determines what the zoning board has to consider, positive and negative criteria (and the party has the burden for both)

1. (negative) undue hardship
2. (positive) the variance would not be detrimental to the public good nor impair the intent/purpose of the zoning scheme

how do we know if there's an undue hardship? how do we determine this?
* did the property owner create/self-impose the hardship (put himself in a nonconforming position)
* efforts that the property owner makes to bring the property into compliance

in this case...

point 1, the negative:
     at the time the lot came into being, the size restrictions were not in place.
     the zoning arose after the parcel was designed. and that is a finding in favor
     of undue hardship, because the appellant didn't create the position.

     secondly, the commons tried to sell and the neighbors lowballed to the value.

     the court considers the property with a variance: why is it doing that???
     to make sure that the land has some value in light of the holding.

     but absent a variance, is the land unfit for effective use?
     there are houses in the area that are on parcels of land this same size but
     they are before the zoning ordinance. that shows that the land could
     be used for the physical conditions of the land. is it reasonable to tell
     the commons that they cannot build?

point 2, the positive:
     the house being proposed would be in the same range as other houses in the neighborhood, thereby it would not bring down the value of the other homes in the area. why would we allow certain interests to outweigh the others? why should we allow the community to say, "sorry, we've already established our homes and our aesthetic and we don't want to allow you to change it?" what if we decide we just... don't like our neighbor's house?
so why do we ever allow conditions where there is an undue hardship such as this? should the burden always be on the nonconforming owner? in reality, there is the same effect as if there had already been a taking.

are the negative criteria met? we don't know. because the court said that both parties needed mroe evidence -- zoning board was conclusory, and the facts alone are not sufficient for a determination.

in both euclid and commons, there is a foresight to eminent domain...

imagine a situation where the community says, "sure our decisions are gonna take away the value of your land." in this kind of regulatory taking, there may be a constitutional issue under 5th and 14th amd't issue, and the gov't may be required to provide fair compensation for the taking.

next week, we're looking at the question of whether or not the neighbors/community bear the burden of noncomformity. if zoning ordnance imposes a burden on a nonconforming parcel, but we find that the parcel is an undue hardhsip on the community, the public will take. the public at large will get a benefit from the improved land but will have to pay for it... that may not be a good thing.
eminent domain.

takings: p. 941-1025, 1042-1059

how to take the property exam

1. everything assigned in class
2. rules (maj/minority, modern/classic,
3. any additional rules that may be applied
4. can talk about why we have certain rules and what the policy reasons for them are

property law: april 9 2010 class notes.

recap.


easements
1. where the parties intended such a right to exist, from the relevant circumstances (van sandt v. royster: right to continue use of something that had been done before the two parcels were separated, a "quasi-easement") in this case we ask if we can infer that the owners of the separated parcels wanted the use to continue? what do we look to to answer this?
  a. what was happneing when this parcel was split in two? was there already a use, such that there could be a continuation of the use (cause if it hasn't happened yet, it can't be continued)
  b. was the burdened party aware? if they weren't, we can hardly say that they intended to have the easement.
  c. is the use permanent or intermittent? we don't consider non-permanent use to be an easement.
  d. was this use necessary to the enjoyment of the dominant tenant? if it's not really necessary, maybe it's not so clear that the party taking title to the dominant would have relied on the subserviant tenant in the way it was being used when the two parcels were split.

other factors from the restatement may comein to play, but basically come to whether or not the two parties intended uses on the two parcels of land to continue.

for example, we construe against an easement more for the grantorr than grantee, has to do that we expect people to write stuff out (put it in the deed, and if you don't we may be more skeptical of what you say)
we may require the degree of necessity etc, to make up for this (see the restatement on real property!!!)

othen v. rosier
claiming the right to use a right of way through the rosier's property.
the parcels were once owned by a common grantor (mr. Hill)
the right of way is a necessity and not a convenience
that necessity to traverse the allegedly subservient estate existed at the time that the two estates were subdivided from the original common parcel

othen wasn't able to prove a common division from the estate: to prove that the owner of the 100 acre provision had to traverse, we would need to know about the surrounding land. we don't know what other options were availalbe, and so we can't say taht the right of way was a necessity. additionally, the 16 acres in front were
you can't create an easement in land you own, so the 16 acres in front do not have an easement for him that way.

however, there may be an easement by prescription, which is similar to adverse possession.
via use through the statutory period, adverse possession may satisfy the requirements for an easement interest.
the use is continuous.
it is an open and notorious use of the land.
is the use exclusive? no...

but if it's exclusive, you don't have an easement you would have adverse possession: we would be saying that you are now the possessor of the property interest in question.

should there be any difference between exclusive use and exclusive possession?
there's a possiblity to call it open and notorious but still not permissive. however, the court didn't see it this way here, the court still viewed it as not hostile.

the court doesn't want to allow othen to combine the periods of use because it's not proven that the road is the exact same that was created and used prior to the upkeep maintenance .

what should be done?
1. maybe the answer is the market -- you could bargain for a position to use the right of way, or bargain with a neighbor to create a

on it's face this seems inconsistent with the open and notorious requirement, to say that the use hasn't been exclusive even if concurrent with the owner of the subserviant estate.

think of suburban common driveways -- the courts are not always aligned on how those cases will come out.

covenant enforceable at law.

covenants are like contracts, if they have consideration.
but in real covenants, we're speaking about promises that are sought to be enforced by a damages award.

land lasts a lot longer than people's promises do. the land may have passed to a successor, and the promisee may pass the land to a successor... so then are the promises still enforceable for action for damages when there is no contract between successor parties?

as to a contract, we can't say that one has consented to the other or that one has relied on the other, as we do with contracts. there must be some other reason as to the binding and enforcement. we do this through...

privity!

privity of contract: A and B have a contract of how to use the land, that's enforceable.
                              but that's nto necessarily true to someone you sell/pass the land to.
                               though we woud want for it to be....

so in order to get at this problem, the common law created a series of complex rules:

1. in order to determine if the successor is liable, we ask if the burden of the covenant runs with the land. the burden of the covenant will be enfo at law only if there is horizontal privity to estate (made in an insturment that made an interest in the property, not just a contract but a deed or covenyance of real prop that included this covenant to be enforced. this is a differnt privity than we're used to seeing in adverse possession with tacking or landlord/tenant law with assignment... totally different! horizontal relationship is how the interest came to be: if the interest came to be throught he intsrument conveying interest in the estate in land. but if there's not, there's no legal interest in the estate in land passing betwen the parties so no privity that will suffice. horizontal privity of estate is important to determining whether the burden of the covenant will run at law. if there's no burden, then there's no successsor who will be boudn by the promisor! that's not true with respect to the benefit --
2. in order to determine if a successor to the beneficiary, we ask if the benefit runs with the land.
in determining the benefit parcel, we don't care about privity of estate.

problem.
A and B are neighbors who plan to restrict to sengle family use. sing a promise: A to assign to her heirs for isngle family purpose only. recorded nder the name of each signer.

we have a promisor and promisee. does their agreement (consisting of promises of how to use the land) made in an instrument making an estate in land? NO
are A and B making a life estate? NO, this is just a contract.

B sells to C who builds an apt building. A sues. what result?
if C is to be bound by the promise of the predecessor, does the burden run from B to C? this is the party against who enforcement is sought. so does the BURDEN run at law to this party (B/C)?
1. was there horizontal privity of estate between A and B? if not the burden cannot run. this interest was not an estate in land. so there's no horizontal privity/ no burden running with land at law.

A and B make their promises in instrument not conveying interest in real property. B sells to C. A acts in violation. C sues to enforce promises against A. what result?
C did not create the promise, A did. C is seeking to enforce, does the benefit run from B to C? yes.
this is the party seeking enforcement. so does the BENEFIT run at law to this party (B/C)? yes.
1. we dont' need horizontal privity for the benefit to run... why??? because A made the promise, and so there's not as much trouble enforceing the promises of the person who made them. whereas it's difficult to enforce promises of people who didn't make the promises, but upon whom promises were conveyed.

vertical privity of estate: this is more like successor privity relationships, like howard v. kunto (tacking with respect to the same piece of land). we are asking whether the successor to the burden parcel has succeeded to the same estate owned by the original promisor. if so, the burden will run to those successors... what does that mean. if the sucessor aginst whom sought has gotten a portion, like LE or DF, doesn't run to the same estate. for the benefittor, the rules are more relaxed as well -- we are only asking if the successor has succeeded to any part of the original parcel, in which case the owner of that parcel has standing to enforce the covenant. hwoever, adverse possession still doesn't give you standing on either side because it's considered a new source of title to which covenants woudn't have been made.

somewhat rare, not typical that these will be sought in covenants enforceable by law. instead, injunctive relief will be more expected. still, we gotta know this...


tulk v. moxhay
moxhay wants to build and tulk sues for an injunction on the ability to build on the garden in lester square. 

rules to vertical privity estate (england only has this between landlord and tenant, not even as broadly as we do). in law of england, can't say that the privity extended from elms to moxley.

what is the court to do? court says moxhay, you knew that you would get this land for less because it was encumbered upon. to now turn around and say that the promises dn't encumber the land, is unfair. but this is only true if everyone's expectations were that the promise was enforceable against him -- but if the expectation wasn't a function of the promise, and didn't create an encumberance then this is

3d party beneficiaries: the interests of others who have relied on the square being open must be looked at. why? because tulk owns the land around the area, but doesn't want to own the garden to maintain it.

why would anybody buy the garden instead? it holds value, because the property has a provision for the collection of rent from the surrounding inhabitants for the use of the garden.... tulk is basically conceding the ownership of the land.

fairness: it's unfair to allow moxhay to get the land at a discount with an encumberance, but then not to reap the full value of hte land. the grantor of this land extracted a promise, and is enjoying their property on the reliance of that promise. allowing the purchaser to use the land as he'd like irregardless of the promise, then that's against the covenant. and that's not fair to anybody...

so this case is not really about fairness or about the doctrine.

the uses of one piece of land can have an effect on the value and usage of neighboring pieces of land... but so what?

there's a right to build and to move forward. the person who wants to not have a build (tulk) and then a person who wants to build on the land (moxhay). and the promise to keep the property to not be built on has value -- but if the subsequent persons don't have a value in that promise then what does it matter?

what would be the effect of saying it's not unfair to let the promisor to go back on the promise? would anybody ever accept such a promise as conveyance of real property? -- yes

covenants are different than other dispositions to the use of property after the original possessor is gone! allowing people to control the uses to the land that they convey/sell/etc. may build on people's comfort to convey.

eventually, tulk or his successors sold the injunction right to the party who wanted to build, which menat that nothing stood in the way of leichester square becoming a big mall. so the public wanted moxhay to create a public park in 1974.

why do it in 1874 instead of 1848? because we are respecting private parties and their decisions.
but moxhay was a private party: why are tulk's private intentions more important than moxhay's? because moxhay bought certain rights and bargained for certain things. he was on notice.

why would it be so bad if it had remained private property instead of becoming state property? if it's private it's for the subjective interest of the private owner and public property -- for all the people who live near this -- their property interests may be affected.

this debate is over the locus of control, not a debate over what's fair and efficient, just over who gets to decide how land is used. this case is a discussion of who gets to decide how resources will get used.

these are the issues of the rest of the course.

till now, we've been talking about two extremes
1. private interests
2. interests of society as a whole

now we're filling in the interest details...

the authority to regulate the uses of property come from the state and from private parties:
- zoning
- takings
-

servitudes continued:
- p. 798 - 815
- p. 40 W. 67th st. v. pullman
- p. 821 - 841, 849 - 857

A has no claim to damages because there is no covenant running with the land, and so there is

property law: april 8 2010 class notes.

title assurance, cont. 

andy associates v. bankers trusts co. 49 N.Y.2d 13

the problem is taht the assignee only records the assignment of the lease, not the rights of the mortgage.
lease is recorded and assigned and assigned again. looking at a grantor-grantee index to the partie's transactions.
1951 - 1954: marce associates (landlord) to marce management (tenant)
1954 - 1968: mortgage and lease assignment to marce handling company
BUT never assigned the mortgage to MHC
1968: mortgage assignment and lease assignment to andy associates

1968-1973: now the problem is MA gives a mortgage assignment to bombay east
1973: satisfaction of the mortgage is recorded in 1973
1974: a new mortgage taken between BE and bombay trading

what's the langugage of recording statutes? andy associates is void against a good faith mortgagee for consideration (whaaa?)

in good faith means "without notice"
what does it mean to have notice?
1. actual notice
2. constructive notice

this is why we have these statutes (see LNH2)

the question isn't whether or not BT had notice, but whether it had constructive notice.
did it? -- YES
why? because BT could have read the subsequent chain of assignments that a reasonable business would have inquired into (LHN2)

so now, we have three different types of notice that remove you from the recording statute:
1. actual notice
2. constructive notice
3. inquiry notice (charged with facts you would have discovered if you had continued inquiry based on facts you had already discovered)

what would BT have done if they had read the documents? it could have done a "block and lot" number search.

BT screwed up they didn't search for the assignment and didn't cross check it against the grantor-grantee index. the lawyer who did this search is liable for malpractice.

title search exercise.
use the NYC automated city register information system (www.nyc.gov/acris) to generate a title report for the property currently for sale on utopia parkway opposite the law school parking lot. use your title report, and any other information you can find in the title records, to answer the following questions:
1. who currently owns the property?
2. when did the coffineaus acquire the property?
3. under what type of deed did the hardings acquire title?
4. what was the interest rate and payment schedule of the hardings' mortgage?
5. on what date did the hardings pay off their mortgage? -- mortgage satisfaction is the date that it was recorded. how do you figure out the date it was executed? -- look at the instrument itself



servitudes. 

so far, we've been talking about possessory interests in property (legal interests including right to posess). but right to posess is only one in regard to physical things, and for property there is also the right to use, the right to exclude, the right to alienate etc.

we've discused how rights to property can be divided up over time

servitudes have to do with dividing in respect to interest in someone else's land

types of servitudes
non-possessory interests in real property
1. easements:
   A is given the right to enter upon/make use of B's land.
   A is given an affirmative easements

2. A is given the right to enter upon B's land and remove something attached to the land;
    A's interest is a profit

3. A is given the right to enforce a restriction on the use of B's land;
    A's interest may be a negative easement (dominant estate telling the serviant estate what not to do), real covenant or an equitable servitude.
    the determination of which type will depend on the remedy sought.
4. A is given the right to require B to peform some act on B's land;
    A's interest may be treated as a real covenant or an euitable servitude
    depending on the remedy sought.
5. A is given the right to require B to pay money for the upkeep of specified facilities.
    this is a real covenant dependent on the remedy sought.

negative easements, which gives a right to control the use of the land but
    not a right to use the land yourself

appertenant easement, a parcel of land is benefited by the easement
   easement in gross, doesn't require the same burden/benefit relationship. it is the right of use in the
   land of another that is personal (fishing or hunting rights for example)
if you want to control the use of someone else's land, typically an easement is not the way to do it. however, easements have grown up recently as conservation easements. 
   profit: right to do something profitable on the property but not to possess the property itself (like the
   right to drill minerals)
   real covenants:
   equitable servitude (covenant enforceable in equity, by injunction): this interest is more flexible than
   the covenant enforceable at law.
   permissive use (license): we won't really be looking at this, but it will come up with prescriptive
   easements

creation of easements
by express grant (written instrument)

by implication
    easement implied by prior existing use
    easement implied by necessity

by prescription (n.b. -- determining prior use)

van sandt v. royster 148 Kan. 495

lot 19 belonged to the jones to the van sandt. lot 20 belonged to the murphys to the royster and lot 4 belonged to the baileys, and then to the grays.
the roysters and the grays sewer lines are connected to his. and then one day

1936: van sandt has a load of shit in his basement.

van sandt wants to enforce his rights as the owner of lot 19 for an injunction for them to have

royster and gray argue easement by perscription (n.b. -- this easement is like adverse possession).

quasi easement was created for the serviant/ dominant tenements... but what does this really tell us about the interests?
1. if you sell a piece of land, do you continue to hold any rights in it?
2. is this the sort of thing you can be on notice about?

why do we care about this???
because the roysters and the grays are deriving a benefit from the fact that the pipes run under the property and they have been for a long time.

we have to now weigh the interests of the three parties: is the defendant's (and their predecessors in interest) use of the pipesmore important, or van sandt's right to exclusion on his property.

a distinction of reserved v. granted easements: under the restatement, it comes in as factor A. why? because it would be easiest for the conveyor to manage how this interest is created and assigned -- just put it into the deed! grantor is in a better position to make the granting explicit. so how does the increased burden manifest itself?

actual requirements for establishing the easement from a prior existing use:
1. existed at the time that the serviant tenement was severed from the dominant tenement
2. permanent and continuous
3. apparent to the owner of the serviant tenements
4. necessary to the enjoyment of the dominant tenement

now we need to know whether there was reliance:
who is asserting, the grantor or grantee?
common or reciprocal benefits derived might put you on notice of the benefits derived in that it's being enjoyed by others.

these are the elements of determining prior use, but the problem can be that they are very fluid. this plus the restatement is what we'll use however. but remember that we can determine degrees of necessity, etc. 

othen v. rosier
seems like adverse possession but that doesn't really translate well here because the property is not owned.

reading is 740-750, 755-768

property law: march 25 2010 class notes.

implied warrranty of habitability. 

hilder v. st. peter.
NY RPL 235-b

the conditions were heinous. but not heinous enough for the tenants to leave.
all of the issues were brought to the landlord's attention. why didn't she just leave considering the deplorable conditions? we just talked about a case on tuesday where the conditions were so grave that they were rendered unfit for use and she would have been released if vacating.

what is the tenant seeking?

expectation damages: the difference between what the tenant paid and what the tenant got... do we go through each condition the landlord promised? if there's a breach of contract there must be a contractual duty. what is the duty here? the landlord covenanted to an implied warranty of habitability.

caveat lessee: why does the court abandon this doctrine? because we are in an urban rather than an agrian culture. why does this matter? because in modern society, we would expect for there to be a disparity in the capabilities of the landlord and lessee in the maintenance of a property:

the landlord is in a better position to fix the property because he has a reversion interest; because

but the cost of the property is almost nill... in part because the place is a shithole. if the landlord makes the improvements, he may have to raise the rent. is this ok? we think that it's ok to make the improvements so long as (a) the housing is still affordable, (b) the improvements are made and (c) the landlord is making a profit.

why is constructive eviction not applicable here? the family probably doesn't have another place to go.

"fit for human habitation" = safety and health of the tenant

this is very different from restee, because these types of conditions and defects of fitness can't be waived.


how do we know what is fitness for habitation and what will qualify for safety? building codes, which present what is/not fit for habitability. the court should inquire what is the safety or health of the tenants: it is a context-dependent standard (for example, a lightbulb going out is not necessarily a

for the doctrine to apply, the tenant must put the landlord on notice that the potential breach exists and give the landlord a reasonable opportunity to . if the landlord does not fix the problem, the there is a contractual relationship between the parties for which the landlord would be liable to the tenant for damages.

the damages may be remedied by allowing the tenant to COMPLETELY withhold rent, and the tenant does not have to vacate during this period and the tenant does not have to prorate the rent during this period.... this is a difference from restee: under constructive eviction, the tenant had to vacate but here the tenant can remain in possession and not pay rent. why? to empower tenants and place the risk on the landlord! why do we do this in residential situations? to keep the residential market safe, sanitary and comfortable in urban environment.

the tenant can also have the repairs made herself and then deduct the cost of repairs from her rent.

problem. 

a property $1000/month has a problem that makes the value of the property $800. the tenant sets up a defense that the landlord breached the warrant of habitability. does this mean that the landlord cannot recover anything from the tenant? NO -- the ability to withhold rent is not a release from liability, such as in constructive eviction. it is instead an obligation but the tenant can withhold rent as a procedural tool for enforcing its rights.

retaliatory eviction. 
NY RPL 223-b
forbidden landlord actions: acts that might substantially alter the terms of the tenancy
such as refusal to continue or renew a lease considering a term of years lease, 
and other retaliatory alterations of terms

remedies can be injunctive relief or damages. 

how do we prove retaliatory effect? if it's not retaliatory it's not wrongful. there is a statutory presumption under 223-b(5) that certain actions (serving notice to quit, ending tenancy, or taking to court) taken within six months will be considered proof of retaliatory eviction unless the landlord can in good faith show that he took these actions.

... basically, just read and understand this statute.

tenant's duties.
waste: tenants may not use the land in a way that will permanently destroy/ disrupt use of the land. the tenant will exercise ordinary care to use of the property, and not do any damage beyond ordinary wear and tear.
fixtures and improvements.
duty to repair. who has the duty to conduct needed repairs during a lease? implied warranty of habitability for residential properties. with respect to commercial properties, the parties are generally still free to contract for this and absent any allocations, the commercial tenant has the responsibility to keep the property in good care.
destruction of premises. if there's an act of god, or a fire/ flood, etc... where the tenant isn't at fault then the tenant may surrender and terminate the lease and the landlord must accept unless the parties agree otherwise, which the parties are free to do.

conveyancing: p. 451-463, 479-484, 513-521

property law: march 23 2010 class notes.

does a landlord have an affirmative duty to mitigate damages towards rent due under a lease?

what is the scope of the duty to mitigate the damages?

what are the consequences if the landlord fails to meet his duty to mitigate?
the landlord is barred from recovery if he doesn't use reasonably diligent efforts to try to mitigate the damages

is there anything the tenant can do to mitigate damages?
he can find a new tenant

where the tenant abandons, the landlord has a duty to try to find a new tenant. the landlord has the burden of proving that he was reasonably diligent in trying to find a substitute tenant (this is *opposite* the common burden in contract law: because the landlord is in the best position to prove he tried to mitigate the damages) 
the landlord must prove that he treated the rental as he did any other vacant stock, even if they didn't prove effective. 

holy properties v. kenneth cole 
kenneth cole vacated on a 10 year lease, and the landlord brought him to court after 7 years vacancy. 
the court says that there's no duty to mitigate in NYS. 
the issue is whether, on these facts, the landlord had a duty to mitigate its damages after the tenant's abandonment of the premises and subsequent eviction. 


what can the landlord do? (i) the landlord can continue to sit on the property, (ii) he can accept the tenant's surrender and mitigate the damages, or (iii) put the tenant on notice that he is not released, but to take possession to try to relet for the tenant's benefit.
what does it mean to be "for the tenant's benefit?" any rent coming in will be to mitigate the abandoning tenant's damages -- it will pay off expenses that the original breach caused, and any new wins will be in mitigation of the damages.
why would the landlord select option (ii)? because the value of the property has increased (for the benefit of the landlord option)

there is no penalty to the landlord for not choosing one option over the other, whereas there would have been in sommer v. kridel (NJS law)... why is there no duty to mitigate in NYS where as there is in NJS?

maybe the correct rule is not a sufficient reason to adopt the rule. historically, there was no duty to mitigate in the event of a breach by a tenant. this is a modern trend, rising from idea of lease as a contract rather than transfer of interest in property. however, lots of people in NYS have been planning their affairs in reliance of the old rule. changing the rule would upset all of those expectations and business transactions: that would not be good.

why couldn't the court just say that the law should change moving forward? that would be a legislative approach, and the court only has the power to adjudicate on this issue before them.

rios v. carrillo
as of 2008, the courts read that there is no duty to mitigate for a residential landlord, unless the lease says otherwise.
how do we handle this argument?

covenant of quiet enjoyment and the doctrine of constructive eviction. leases are mutually dependent on these principles: if the lease does not meet these requirements, then the agreement may be nullifed.

reste realty v. cooper
effects on the property that will influence how the tenant may use the property...

when it rains, it is really hard to use the space for meetings with clients, etc. the landlord argued that the tenant signed away her rights of quiet enjoyment, and that the rain does not make a permanent uninhabitable problem interfering with her use of the land: the way that the tenant entered the lease, with the issues of the water entering the property.

when the landlord constructively evicts: any act or omission of the landlord which renders the property substandard of the lease agreement or

one off problem that happens a day or two is possibly not enough to create a disruption to the covenant of quiet enjoyment. but if it regularly happens, then it will likely be considered a disruption.

the landlord argues that the tenant remained longer than reasonable.

let's say the landlord had made a promise to fix the leak and did not, but that the water was just a nuissance. would the landlord have breached the convenant of quiet enjoyment?

considering the doctrine of consideration... what is the tenant's injury?

problems.
see note 1 on 427. the value of the expectation of the promise would be due to the tenant. however, the lease is independent of that promise. most
problems.

partial constructive eviction.

in most jurisdictions you must vacate. but you don't have to in NYS. this problem is acute in residential leases, particularly for low-income housing.

implied warranty of habitability:
see hilder v. st. peter
NY RPL 235-b

retaliatory eviction: NY RPL 223-b

tenant's duties:

• the doctrine of waste
• duty to repair

property law: march 18 2010 class notes.

privity.
duty will arise out of property law (estate) or contract.

assignment with novation.

sublease... a "daisy chain"...

the landlord remains in privity of contract, and the tenant comes into privity of contract with the subleasee, with no agreement to the landlord unless the subleasee agrees to take on the responsibilities to the landlord

versus an assignment...
the property relationship between the parties has changed, and the assignee is taking all of the property interests of the original party and thereby taking the relationship of privity of estate from the assignor, such that the landlord and tenant no longer have a property interest left, instead the assignee takes the interest. but as to the contract, the original tenant is still in privity with the landlord and will also be in privity with the assignee. unless the assignee agrees to be bound, there is no privity of contract between the assignee and the landlord.

novation = the landlord is specifically agreeing to release the first tenant and take on the new tenant

these relationships are only relevant so long as there is a breach of contract. if there's a breach (such as not paying rent) you can only recover if there is a privity relationship.

ernst v. conditt: was the transferee a sublease (no remedy against the subleasee) or assignment (remedy available). let's say that this had been an assignment, and ernst then had an argument against rogers. what could rogers do?

yeah, if you contract for it, you can have a XXX but in CA the landlord's right to reject leases is subject to a reasonableness clause. there is a duty of good faith, and not allowing the sublease for arbitrary reasons is not acting in good faith.

in NY, commercial leases are silent: if you bargain for it, a commercial landlord can withhold un/reasonably. but for residential, consent to assignment can't be unreasonably withheld and consent to sublease cannot be unreasonably withheld. AND if it is unreasonably held (risk of adverse determination is on the tenant, however).

limits to occupancy in sublease/ roommate

what happens if a tenant breaches under a lease? such as failure to pay rent, or what if the tenant has abandoned the property?


berg v. wiley
berg is claiming loss of property
intentional infliction of emotional distress
damage to chattel (personal property that was taken/damaged)
wrongful eviction

what is the court addressing?
1. was the finding on abandonment/ surrender correct?
2. was wiley's retaking possession held correctly as a matter of law?

abandonment surrender is a factual one, not a legal one: the court would have needed to consider if the tenant's frame of mind was that she wanted to abandon the property. and if there was evidence in the record for the reasonable fact finder to know then there is abandonment? in this case there was enough evidence to know that the tenant did not surrender.

now do we know whether or not the eviction was wrongful.
the test:
1. landlord must operate under legal entitlement (must have the right to it)
2. the landlord must enter "peaceably"

this test comes from the common law of landlord tenant.

does the landlord have right of entry for repossession here? yes -- forfeiture of possession clause
wiley contends that a non-peaceable entry would have had a confrontation. since he retook when she wasn't there, obviously it was peaceable (considering the events that had already transpired between the parties).

the court doesn't buy this: just because she wasn't there, there was still tension between the parties and that the landlord was taking the law into his own hands, which makes the retaking non-peaceable. the only peaceable way is to go through the courts.

why?

because the tenant who finds him/herself in breach, the tenant can act unpeaceably.
see the article about mr. bryce
going through the courts takes time and cost tax-payer money, but it does involve an additional element of reason will help to temper the emotions that flare under real property

summary proceedings to recover possession can take a year (often does, in new york)... is this right or wrong?


sommer v. kridel, 74 NJ 446 
when the tenant does abandon, are the landlord's rights different?

duty to mitigate. does sommer have one? this court says yes: because taken the facts of

next class:
holy properties v. kenneth cole
rios v. carrillo

property law: march 16 2010 class notes.

recap.
holdover
american rule v. english rule
NYS has adopted the english rule over the american rule
tenancy at sufferance

sublease and assignment
various remedies for holdover tenants
1. accept rent for a new term. however, it's clear that this acceptance is not for a new lease on same original terms, but instead for a periodic tenancy (for example, if the payment of rent is one month's, a month-to-month may be created OR a term of years may be created... there is statutory authority but in terms of its application, there's no clear test on this because not really a current issue)

ernst v. conditt.
we saw what happens when a tenant purports to transfer some of his interest in a property to a third party. we have to determine what we will call this transference.

1. does the transferee retain any interest after giving over to 3d party? such as some interest in the remaining term of the lease? the traditional common law test would find a sublease
2. does the transferee give all interest over to 3d party? under common law, this is an assignment.

n.b. -- the title doesn't matter in assignment

not clear that these test really gives different results!!

in ernst v. conditt the appellant said it was a sublease however, the court said that all the interest was conveyed... what do we call this? it's an assignment, because the original tenant did not have any interest left over in the property, though it was called a sublease. what does this idea of "intent" do, in this case? does it actually serve any purpose? what would their actions do that may have some inconsistency with their words or with their writing?

who cares whether its a sublease or an assignment?
privity of contract versus privity of estate!
privity creates legal duties that parties can enforce against each other. 
privity of contract is created by the voluntary agreements and relationships between people.

landlord and t1: estate and contract
t1 and t2: estate and contract.
landlord and t2: no privity!!

third party beneficiary: contract law will acknowledge a contract between 3d party if one party is explicitly agreeing to take on obligations that are of benefit to the 3d party.
most juris recognize 3d party beneficiaries. that would create

so to review:
in a sublease
L privity of estate and contract T1 privity of estate and contract T2
and between L and T2 any covenant explicitly assumed will convey a 3d party beneficiary contract

so what happens in default? what happens if there's waste?

in an assignment where the tenant has transferred all of his interest to the second tenant, are the landlord and T1 in privity of estate? no -- because the tenant had assigned all of the rights away
are they in privity of contract? yes -- because absent the landlord's consent, the tenant can't destroy the relationship

in an assignment where the tenant has transferred all of his interest to the second tenant, is there a privity of estate between them? no -- because T1 does not have property interest beyond the lease. T1 assigned the leasehold to T2. the other property interest is the landlord's in reversion.

assignment with novation!

n.b. -- see the powerpoint slides: the arrows indicate who can sue who ^__^

so back to ernst...
L contracted to T1 contracted to T2 which created an assignment of the estate interest between L and T2.
but rogers said, "i will stay responsible for the execution of the lease." is that consistent with an assignment? yes -- why? because rogers can still remain liable in privity of estate with ernst.

now, is there a privity of contract between ernst and conditt? no -- there is question of whether or not conditt explicitly assumed the obligations of rogers

there's an assignment between ernst and conditt. but it is questionable if there is a contract of 3d party beneficiary between them! therefore, the difference between assignment and sublease...

landlord's right to control tenant's disposition of leasehold interest:
ny RPL 235-f (the roommate law) -- the landlord has no right to restrict 1 roommate + his/her dependants per tenant on the lease, and any attempt to do so is unreasonable and unenforceable. must give the landlord 30 days notice.

kendall v. ernest pestana, inc
ny RPL 226-b (the sublet law)

issue of extortion...
the landlord
restraint on alienation (white v. lied, mountain lodge v. toscano) -- common and stat laws do not support restraint on alienation

what would be a problem with allowing the landlord to withhold consent? the landlord can extort more than he would have gotten from the original agreement

what about the reasonableness argument? isn't it reasonable that kendall is saying, if you want to make the assignment, the land is worth more? the court says that reasonableness here is that it's reasonable that the land is kept in use rather than held unused until there's a better offer

what about the clause in the lease contract saying that the landlord has full right to arbitrarily deny assignment?
the landlord should have the opportunity to vett any assignment that comes because of his right to protect his interest in reversion and his interest in economic efficiency. why should he still be held to a reasonableness scrutiny? because if the interest that the landlord has in denying assignment or sublease, it has to be based in these two interests and any other interests would be assumed to be exterior to the commercially and contractually valid interests

where you have leases that extend over a period of time, it's possible that the value of the property could

parties interested in creating rules to contract over time will probably want those agreements and interests to be retained. why? bargaining power

if you bargain for it, the landlord's restrictions under a residential lease

bird v. wiley
summer v. ridell
reyos

p. 421-449 and NY PRL 235-b, 223-b

property law: march 11 2010 class notes.

landlords and tenants. 

leasehold estates.

periodic tenancy.

tenancy at will.

tenancy in sufferance. 

check out how we do in NYC.

garner v. gerrish
there are many complexities that can arise from leases being both property and contracts. the bodies of law are different. contract is almost exclusively about intent of the parties (benefits of hte bargain). property has other interests -- stability, efficiency, reliability, etc. those interests can be in conflict, and must be reconciled.

one party wants a tenancy at will.
the payment of rent is the only thing that has some understanding of the duration of the lease.
the court looks at the terms of the lease to know beyond "a period of years" what the tenancy period should be.
the parties didn't intend to create a tenancy at will.
the question could be so what: if you are purporting to put limits on property that the law doesn't recognize, too bad -- if it's not compatible with our system of property rights, the court will not allow it.
why do we treat a lease differently than a will, or than estate? because it is a contract (covenant to pay rent) with terms in addition to a conveyance
common law of property (where there is one option for one party to terminate at will, the other party will be assumed to also terminate at will)
default rules for contract interpretation (certain terms will be implied, such as duty of good faith and warranty of merchantability... however, some of these rules can be contracted around)
there is an "untrumpable" common law rule here, so why is it not being read into the contract, even if not the intentions of the parties?
what reason to keep that common law relationship? landlord-tenant power disproportionality

life tenancy is usually a free-hold interest. but here the life tenants have to pay rent to enjoy the possession interests.
the landlord's interest in a lease property is a reversion.

only leasehold interests create landlord tenant relationships. freehold interests do not.

crechale & polles v. smith:

see NY RPL 232-c

If a T whose term is longer that one month holds over, LL
     does not have automatic right to hold T for a new term. If
     LL accepts rent, absent contrary express or implied
     agreement, T is deemed a month-to-month tenant.

the parties begin with a tenancy term of years/year to year. the tenants are expected to move to another property, but the property won't be ready until after the current lease is up. they are willing to pay for this extension. but there is a disagreement of the material fact of whether or not there was an agreement to the extended month to month. but the first month, when the payment is received, the landlord cashes the check!

the landlord is sckitzo and takes four positions:
(1) find somewhere else
(2) i won't take your rent and you're a hold over
(3) ok, you've renewed your lease for the next five years
(4) now you've renewed your lease for the following year
(5) now you're a periodic year to year tenant

what are the rights of a landlord when a tenant holds over?
3 Thompson on Real Property s 1024, at 65-66 (1959), wherein it is said:

‘As a general rule, a tenancy from year to year is created by the tenant's holding over after the expiration of a term for years and the continued payment of the yearly rent reserved. * * * By remaining in possession of leased premises after the expiration of his lease, a tenant gives the landlord the option of treating him as a trespasser or as a tenant for another year, . . .’

by accepting the first check, the landlord agreed to the month-to-month tenancy. the landlord didn't have to accept. when he first found out that the tenant intended to stay, the landlord had the option to either treat the tenant as a trespasser or as a month-to-month tenant. the landlord decided to treat them as a trespasser. he cannot change that position later. the tenants stayed knowing that the landlord would treat them as a trespasser.

why month-to-month? because the landlord cashed the check that was for one month. thereby, we can infer from the facts some semblance of a tenancy period.

not a tenancy at will.
not a term of years: since we must consider the assent and intentions of the party, statute of frauds, and the agreement of the parties. nothing about the facts, circumstances, and reactions give no date certain of when the tenancy would end.

landlord is informed
landlord exercises right to treat tenant as a trespasser.
tenancy at sufferance - wrongful possession, which entitles the landlord to double rent.
BUT -- knowing that these were his rights, the landlord accepts the rent for one month from the tenant.
thereby, the landlord has created a month-to-month tenancy, against the rights he would have had against a tenancy in sufferance

what other rights could the landlord have exercised? see thompson
did the landlord exercise these rights? NO - he accepted the tenants position, by cashing the check

hannan v. dusch
see NY RPL 223-a

what is a landlord obligated to deliver? the right or the actual possession of property?
in england, you must actually deliver the property.
in US, the tenant does not have any claim against landlord for giving the right but not the property. why would

who is in the best position of knowledge to avoid any problems with the holdover?

american rule... english rule... neither is mandatory, and they can be chosen to the terms of the agreement of the contract

ernst v. conditt
there are a couple of issues at play, the issue of privity and the issue of assignment
privity of estate and privity of contract
sublease v. assignment
language said sublease, but for all intents and purposes, this is an assignment... is this really a different test than the traditional one (whether in the title transfer the landlord has retained any interest)?

property law: march 4 2010 class notes.

partition.

partition in kind (actual partition): below notes are from warda&yanano llp 

partition in kind is essentially a court-order to divide the property, instead of outright selling it and dividing proceeds.  This is favored by courts when possible because, unlike partitions by sale, the property will stay with one or more of its current owners who may want to keep it.

There is a big decision handed down many years ago involving two branches of a farming family in the southern San Joaquin Valley, where 4,700 acres of land (and water rights to a water ditch) were involved, and the two sides of the family just didn’t get along.  The land was known as the Ward Ranch.

One side sought the partition by sale.  The other side wanted it divided.  The appellate court upheld a lower court’s ruling that the property could be divided in-kind, meaning divided among the family members.  When possible,  this will be the direction of every court.  But it has to pass the fairness test, meaning this route would be fair and equitable for all parties.

delfino v. vealencis


sharing the benefits and burdens of co-ownership: when there is a need for independent property rules to determine how the benefits/ burdens are to be shared... 

** who gets to make the call that the portion mrs. vealencis would make on the sale is worth the loss of her property? -- mrs. vealencis does!! 
** what law supports this? what laws apply to these partition actions? how do we protect the subject value of the land in addition to any objective measures? 
(1) free & clear share of the land in FSA: the tenant in common who doesn't want to sell can determine if they want to sell or not (proportional share of either property or the proceeds)
(2) would the owners' interests be better served by the sale? how do we understand/quantify the owners' interests?
(3) can the property be portioned off fairly?
(4) does it effect the economic health and the marketability of the property to proportion it out?

the court's holding illustrates that the best way of allocating resources (unless there's a really good reason to the contrary) is to let the market work out the subjective and objective interests. but in tenancy in common, the court will respect each party's subjective and objective intentions and desires to the extent that they don't infringe on the other party's rights

partition by allottment:

partition by sale (licitation, or succession):

spiller v. mackereth

how do you avoid ouster? 
composite activities test:


when a cotenant is in exclusive possssion of the concurrently owned property, the majority holds that unles theer has been an ouster, the cotenant in possession does not have to pay a proportionate share of the rental value to the cotenants out of possession. 
what constitutes an ouster? 


fiduciary duties: generally, cotenants are not fiduciaries with respect to each other and each tenant is expected to look after his/her own interests. but a fiduciary duty is imposed when (1) one cotenant buys in concurrently owned property at a mortgage forclosure, thus having a superior position and (2) where there's a possibility of adverse possession against the other cotenants, the actor may only do so if his position is so unequivocal and notorious as to put his cotenants on actual notice of a hostile claim. 

swartzbaugh v. sampson
at trial court, the judgment went for sampson against mrs. swartzbaugh.
how is it determined if mrs. swartzbaugh is entitled to the execution of the lease cancellation? 

each joint tenant has the right to use and possess the whole. either cannot do so to the exclusion of the other, however. 

this problem is similar to delfino: one holder of a concurrent interest wants to use the land one way, and the other objects. how is the dispute resolved?

what rights does sampson, the lessee, get in effect through swartzbaugh?  
compare this case to riddle and sprague.
in riddle, the written instrument did sever the joint tenancy. 
in sprague, the mortgage will sever the joint tenancy if it is considered under the title theory, but not if it's considered under the lien theory. 

now, with a lease of the joint tenant -- does it destroy the unities or not?  
sampson has possession and use of the whole equal to mr. swartzbaugh's. mrs' can't get rid of her, but she does have some remedies... 
ouster! mrs. s may go to enter and possess the property! 

how may she establish that? 
she can physically go to the ring.... tough luck in her elderly, feeble position. 
she can appoint someone else to go do it! 
she can give someone else permission to use the land, and when sampson interferes with their use, it would be ouster. 
an accounting: 
a contribution: 
repairments and improvements: 

property law: march 2 2010 class notes

common law concurrent interests.

five, but apparently only three matter:
(1) tenants in common: (TIC, or just cotenancy) separate but undivided interests in the property; the interest of each is decsendible and may be conveyed by deed or will. there are no suvivorship rights between tenants in common.

- in tenancy in common, each tenant has a separate but undivided interest in the whole, and accordingly
  each tenant has a right to possession of the whole.
- each tenant's interest can pass by grant, devise, or descent
- if a conveyance is made to more than one person without
- a tenancy in common is alienable, and can be transferred intestate, inter vivos and
- what type of concurrent interest is created by the grant? the assumption is that it is a tenancy in
  common if there is ambiguity.

problem.

T devises Blackacre to A and B. A conveys his interest to C. then, B dies intestate.

A and B = tenants in common

A conveys his interest to C = B and C are tenants in common

B dies intestate = C and B's heirs are tenants in common. each tenant in common owns an undivided share of the whole.

(2) joint tenancy (JTWROS): or joint tenancy with right to survivorship
per moi et per toi (mine and yours, both tenants own the whole). when one party dies nothing passes to the survivor, instead the estate continues and the decedent's interest in the estate is extinguished.

- each tenant owns the undivided whole of the property. so upon the death of one tenant, the undivided interest continues to be held by the surviving joint tenants; the deceased tenant's interest ceases to exist (this is the right of survivorship)
- the right of survivorship must be specific and must contain the four uniting factors that indicate and satisfy the intent for JTWROS

the uniting factors to create a joint tenancy are:

- time (the interest of each joint tenant must be acquired or vested simultaneously)

- title (the interest must be acquired by joint title or joint adverse possession, and cannot arise out of intestate sucession or other act of law)

- interest (the parties ust have equal undivided shares and identical interests measured by duration)

- possession (each party must have a right to possession of the whole. however, after a joint tenancy is created, one tenant can voluntarily give exclusive possession to the other joint tenant.)

if all four of these factors are not met, it is a tenancy in common. if any factor is severed, the joint tenancy is severed converting it into a tenancy in common.

(3) tenancy by the entirety: created only in husband and wife. it is the four factors of joint tenancy + marriage unity. but unlike joint tenancy, neither spouse can unilaterally sever the tenancy by the entirety, to prevent one spouse from cutting off the other's survivorship right. gifts to the married couple are as well.

unequal shares: if A owns 1/3 and B 2/3s, common law says A and B are not joint tenants. they are instead potentially tenants in common. today, this is ignored per intent.

divorce terminates a tenancy by the entirety, typically converting it to tenancy in common. 

problem 1.

O conveys "to A, B and C as joint tenants". subsequently, A conveys his interest to D. then B dies intestate, leaving H as his heir. what is the state of the title? what if B had died leaving a will devising his interest to H?
A, B and C are joint tenants (with the right of survivorship), each with an undivided interest in the whole. joint tenants is a term of art that satisfies the intent requirement of the grant.

A conveys his interest to D. D is a tenant in common, because the unity of time no longer exists under this conveyance. similarly, the unity of title is not the same interest from which B and C's tenancy were created under. the original unity is destroyed. B and C remain joint tenants, but B and C with relation to D become tenants in common. 

joint tenants by definition have equal interest. so when one joint tenant severs, he has a proportionate share equal to everyone else's. but when that is converted to a tenancy in common, their share is equal to their position. D's 

what is the state of title between B, C and D? what is each party's interest?

B and C have the right of survivorship between each other. D has an interest of a 1/3 in common with respect to B and C. B and C hold undivided 2/3 interest as joint tenants with right to survivorship.

B dies intestate, leaving H as his heir. who gets B's interest? B's interest is extinguished as to C as the survivor, because C retains the whole as a joint tenant. C has an undivided 2/3 interest as a tenant in common with D, who retains an undivided 1/3 interest. 

what if B had conveyed his interest to F, the same day A had conveyed his interest to D? B would have conveyed a tenancy in common to F, and C would lose his right of survivorship/ joint tenancy by default. all parties would be tenants in common with 1/3 ownership. 
 

B dies leaving a will devising his interest to H. the result is the same, because when B dies, his right to the property is extinguished, and you can't sever a joint tenancy when you're dead -- your death is what changes your interest. 

 
problem 2. 

T devises blackacre "to A and B as joint tenants for their joint lives, remainder to the survivor." what interests are created by the devise? how does a joint tenancy in fee simple differ?

"joint tenants for their joint lives" = this is not a joint tenancy: this is a life estate as tenants in common. and there is a remainder that exists today if neither of them survive. the designation of the remainder indicates that a right of survivorship is NOT intended! 

there is no joint tenancy that can be severed. you cannot have a remainder in land that will have a right of survivorship in another party. therefore, there is no possibility of an FSA in this situation (joint tenants for their joint lives), and therefore there is a contingent remainder, but no taker. 

A and B have a life estate for their joint lives as tenants in common. T's estate has a reversion.

how could T have created a joint tenancy? T should have made it explicit to the term of art "to A and B as joint tenants with the right of survivorship and not as tenants in common."

riddle v. harmon

why would riddle have written this deed? it terminates the unity factor of time -- she is trying to tenure the rights to the land to herself without ever being out of right. 

how else could she have done this? she could have given it to someone else to give it back to her. then she would have had a tenancy in common.  

what does the court say about that kind of exercise? this is the way that a TIC used to be severed anyway. 

what is the reason for having the strawman? because we don't have strict requirements of livery of seisin anymore (remember, where you give somebody a handful of land to transfer). 

*** ask dee for recording for this portion of the discussion*** 

a joint tenancy can be a form of estate planning, and we want to respect what someone may want to have to protect their estate after their death. we want a good reason to reduce the joint tenancy to TIC, and a writ of seisin is not really what we want to be good enough to suffice. 

what about jack riddle? what do you do if there was no way to create anything but a joint tenancy?

if joint tenancy is just a will substitute, then sure we would allow people to sever a joint tenancy until you die. what's the problem with this? "luck of the draw" -- i can create an exclusive possession situation by having the deed someplace where no one will find it unless i die. 

fraud is a concern, and it's alleviated by creating a public record. how do we avoid the problem of fraud? with a notice of recording. that way the interest is made notorious and open.

problem. 

suppose the wife had written in her own handwriting, "i convey interest to myself, to terminate the joint tenancy with my husband," and telling only her daughter, she put it into a drawer. subsequently, the husband dies and the wife destroys the deed. what result? 

problem. 

if A and B, joint tenants, die in a common disaster and there is "no sufficient evidence" of the order of death, then 1/2 goes to each tenant. suppose A and B are in a train accident, and witnesses see that A has no signs of life and B is decapitated. who survives who? 

if A murders B, the joint tenancy is severed with the murder and converts to tenancy in common. the murder then loses right of survivorship into the decedent's estate. 

problem 3. 

A and B are planning to be married. two weeks before the ceremony, they buy a house and take title in "A and B as tenants by the entirety." several years after the marriage, A moves out and conveys his interest to C. C brings an action to partition the property. what result?

severance in practice of cases...

harms v. sprague 

the issue is that by mortgaging the interest he held, john (the brother) converted the interest from joint tenancy to TIC. then john died and left a will devising everything to his "friend", sprague.  

what is the state of title as to the land that john and william held? it was joint tenancy, but now would be TIC between william and sprague. the mortgage would be against the 1/2 undivided interest held as TIC by sprague. since this is an undivided interest in the whole, the simmonses could forclose/ lien against the whole of the land. 

what's john's argument? the mortgage did not sever the joint tenancy, but upon john's death, it should not be carried over because john's interest extinguished upon his death. therefore, the mortgagee should be out of luck. 

there's two options of reading these facts: 

(1) john's interest passed to charles and then to the simmonses, which they can assert against william and charles in common. 

(2) the mortgage didn't sever the joint tenancy and john's interest which was incumbered by the mortgage during his lifetime extinguished when he died and william owns the land free and clear by virtue of survivorship. 

which option is correct? 

the court decides that creating a mortgage does not create an interest sufficient to destroy joint tenancy. the simmonses did not acquire the right to possess and use the land but only the lien on the property. 

what is a mortgage? is it an interest in the land or is it just a lien? the court follows the "lien theory" instead of "title theory" of mortgage. therefore, the unity of title required for joint tenancy was not shattered by the mortgage, because no new title was created, just a lien. 

why is the lien theory better here? because william didn't know that there was a mortgage. there was not notice.  and the simmonses are in over their head in taking on this mortgage and they should have done their due diligence to take out this mortgage. 

what effect does this ruling have on the market of mortgage? makes people do their homework, and check out the value of chain of title on the property that they are holding in security for a loan

how could john have assured the simmonses holding would be good? he could have gotten his brother's assent, or he could have severed first and transferred a TIC to the simmonses

what do we want parties to do? express their interest and bargain for certainty, bargain for contingencies

suppose harm had died first, sprague did not pay the note and the simmonses forclosed. would the entire land be subject to the mortgage or only half interest in it? 

problem. 

A and B own blackacre in joint tenancy. A conveys a 10-year term of years in blackacre to C. after five years, A dies, devising all of his property to D. what are B's rights? 

suppose that A and B sign a written agreement giving B the rentals from and possession of the land for her life. does the agreement destroy the unity of possession? upon A's subsequent death, who owns the land?

problem.

H and W are owners of blackacre in joint tenancy, and are getting a divorce. they sign a divorce agreement providing that blackacre will be sold and the proceeds divided equally between H and W. before blackacre is sold, W dies. does H have a survivorship right? 

joint tenancy bank accounts: these are the subject of much litigation because the depositors can use them for so many different intentions. 

problem.

O, a widower, opens a joint bank account with his niece, A. O tells A, "i'll want your name on this account so that in case i am sick you can go and get the money for me." O dies. is A entitled to the money in the account? 

suppose that O also gives A access to a safe deposit box by adding A's name to the signature card giving access; the lease agreement signed with the bank provides that the content of the box are owned in joint tenancy with right of survivorship. the box contains $330k in bonds and cash. is A entitled? 

problem.

H and W and their son, S, open a join savings account. H and W are in their 60s. the money comes from H's salary. H dies. W claims that hte entire amount in the account is hers and withdraws the balance. does S have any rights to the money? 

problem.

A and B have a joint savings account of $40K. how much of the account can A's creditors reach?

mildred: "awh, what's half of nothing?"
wally: "well it works both ways mildred, see burt's creditors can come after you..."

relations among concurrent owners. 

"each tenant owns an equal interest in all of the fee and each has an equal right to possession of the whole... 'neither a joint tenant nor a tenant in common can do any act to the prejudice of his cotenants in their estate.'" 

communal ownership encourages inefficient use of common property resources. there are many benefits and burdens to co-ownership. 

partition: an equitable action available to any joint tenant or tenant in common (unavailable to tenants in entirety) to terminate the cotenancy. 

property law: policy arguments

waste.
acquisition of finding.
acquisition of capture.
express language.
right to alienate: presumption against restriction on alienation
efficiency of the law (simplified application, certainty)
allocation/efficient use of resources
keep property to its highest use
due diligence
mitigate fraud

when do we depart from policy? where we feel the public will be better served

property law: feb 25 2010 class notes.

future interests continued.

future interests exist now. they are invested in a grantee and have a remainder vested in another party.

defeasible fees and interests that follow them.
future interests as reversion (usually is default, if vested interest doesn't equal 100% of grantor's interest)

vested remainder: a remainder can be vested and yet subject to change.
three types:
- indefeasibly vested (cannot be destroyed or changed) - is certain to become possessory; no future event can dilute it
- a remainder that is vested subject to open (subject to partial divestment) is a remainder given to a class which may be enlarged by future events, diluting the share of remaindermen in exsistence at the time of the grant
          example: to A for life, then to A's children and their heirs, when A already has one child and si
          still alive
- remainder vested subject to complete divestment (subject to complete defeasance in NYS) is created in an ascertained person and is not contingent on any furture event in order to become possessory, however some other future event could cut off the remaindermen's right to possession.

comparing contingent remainders with vested remainders subject to complete divestment:
- whether a remainder is contingent...
if we're trying to distinguish, we must look at the language of the grant (see casebook notes). this is all dependent on the placement of the language.

rules of thumb:
- if the conditional language is part of the clause describing the remainder, the remainder is contingent (NYS: subject to condition precedent)
          example: to A for life, then to B and her heirs if B survives A, otherwise to C and his heirs.

- if the conditional language follows the desription of the remainder as a separate clause, the remainder is vested subject to complete divestment (in NYS: vested subject to complete defeasance).

why does any of this matter? rule against perpetuties (which we won't study here)

problems.
p.230, p.1: O conveys to A for life, and in the event of A's death to B and her heirs.
1. chronology
2. language
3. vested or contingent
to A for life = life estate
in the event of A's death to B and her heirs = remainder in FSA (the magic words are "to her heirs")
nb FSA tells us what type of estate will be taken by the grantee

is the remainder vested or contingent? VESTED
  is the remainder given to an ascertained person? YES
  is the remainder based on a conditional? NO
what does "in the event of A's death" mean, how should it be interpreted? it just means the end of the preceding life estate, it's not conditional --->> suplusage language (when interpreting the clause, pretend the language isn't even there)

is there a reversion?
  what was the grantor's interest? FSA
nb - FSA can have future interests that are not guaranteed to occur. if those conditions on which a grantee's FSA hinged never occured, then there would be no transfer and the interest would revert. therefore, the grantor must convey a *vested* estate equivalent to his own.
   has the grantor conveyed a vested estate equivalent to his own?

B then coveys her interest back to O.
what's the effect on A's interest? none - A still has a life estate.
what's the further effect? B's interest passes to O: O has a vested remainder in FSA

p.230, problem 2, I.
O conveys to A for life, then to B for life, then to C and her heirs.
estate and interest are different.
A has a life estate.
B has a remiander for life (life estate in remainder)
is the remainder vested or contingent?
    is the remainder given to an ascertained person?
    is the remainder subject to any condition that might cause it not to become possessory upon termination of the preceding estate? NO, there is nothing required for B to take
     therefore, B's interest is vested
C has a remainder in FSA
is the remainder vested or contingent?
    is the remainder given to an ascertained person?
    is the remainder subject to any condition that might cause it not to become possessory upon termination of the preceding estate? NO, there is nothing required for C to take
is there a reversion?
    what was the grantor's interest?
    has the grantor conveyed a vested estate equivalent to his own?
      therefore, no reversion!

does the fact that B could die before A effect our analysis? NO, because the mechanics of the interests:
- there is a vested remainder for life that is certain that the interest exists.
- when B's interest in the future interest is extinguished, it just simply terminates before becoming possessory. but it doesn't change the actual interest.

problem 2, part II:
O conveys to A for life, then to B for life, then to C and her heirs if C survives A and B.
A has a life estate
B has a vested remainder for life/vested life estate in remainder
C has a remainder in FSA

is the remainder vested or contingent?
    is the remainder given to an ascertained person?
    is the remainder subject to any condition that might cause it not to become possessory upon termination of the preceding estate?YES: in order to take, C must survive both A and B. therefore a contingent remainder in FSA

is there a reversion?
   what was the grantor's interest? FSA
   has the grantor conveyed an estate equivalent to his own? NO - A and B's estates are a life estate (FSA>> life estate>> lease), and C has a contingent remainder in FSA. therefore O must have a reversion
   is the reversion certain to become possessory? NO - C could outlive A and B

problem 3:

O conveys to A and B for their joint lives, then to the survivor in fee simple.
A and B have a joint life estate. when will this estate end?
"joint lives" means "while both are alive" -- the life estate ends upon the death of either A or B, whoever dies first.
the survivor [as between A and B] has a remainder in FSA.
    is the remainder vested or contingent?
      is the remainder given to an ascertained person? do we know who will survive? NO - because we
         do not know whether A will survive B or vice versa
      is the remainder subject to any condition that might cause it not to become possessory upon
         termination of the preceding estate? YES -- if we think of A and B as possible remaindermen,
         each one's right to possession is conditioned on hi surviving the other.
is there a reversion?
   what was the grantor's interest? FSA
   has the grantor conveyed an estate equivalent to his own? NO - the last vested estate is a life estate; the life tenants each have a remainder in FSA but the vested estate is not equivalent to the grantor (and that makes sense because A and B may die simultaneously) therefore O has a reversion in FSA.
   is the reversion certain to become possessory? NO - in fact, it's almost certain to *not* become
   possessory. therefore this is a reversion in FSA subject to complete defeasance

p. 230, problem 4:
A's oldest child, B, is 17. O conveys to A for life, then to A's children who shall reach 21.
O conveys to A for life = life estate
then to A's children = FSA remainder

is the remainder vested or contingent?
    is the remainder given to an ascertained person? YES, at least B
    is the remainder subject to any condition that might cause it not to become possessory upon termination of the preceding estate?YES: in order to take, A's children must have reached 21. we don't know if any of A's children will take.
THEREFORE, THE REMAINDER IS CONTINGENT IN FSA

B subsequently reaches 21.
A's life estate doesn't change.
is the remainder vested or contingent?
    is the remainder given to an ascertained person? YES, at least B

    is the remainder subject to any condition that might cause it not to become possessory upon termination of the preceding estate?YES: in order to take, A's children must have reached 21. we don't know if any of A's children will take.
THEREFORE, B's INTEREST IS NOW A VESTED REMAINDER IN FSA.

B's interest in FSA is now vested, but it still just a remainder interest.
There are three different types of vested remainders - indefeasibly vested, vested subject to open, or vested subject to complete defeasance: which is B's?
indefeasibly vested: NO - A may have other children, and when they reach 21, B's interest could be partially diluted
vested subject to open: YES - B's interest as a remainderman can be diluted by future expansion of the class of remaindermen (because A could have more children)
vested subject to complete defeasance: NO - the remainder is now vested and there is no conditional language to suggest that a conditional future event could take the right away

executory interests:
- an executory interest is any interest in a transferee that cna divest or cut short a prior vested estate. it is uusally created by a conditional language following anothe grant.

examples.
     - O conveys to A and her heirs, but if A dies without issue, then to B
          - A has a fee simple subject to executory limitation
          - B has a shifting executory interest

    - O conveys to A when A graduates from law school.
          - O has a fee simple subject to executory limitation
          - A has a springing executory interest

     - O convesy s to A for life, then to B, but if B marries C, then to D
          - A has a life estate
          - B has a vested remainder in fee simple subject to executory limitation
          - D has a shifting executory interest

an executory interest can also follow a defeasible fee. compare with the possibility of reverter:
     - O conveys to A for so long as A uses the premises for school purposes, then to B
why an executory interest instead of a remainder?
why a shifting executory interest instead of a springing executory interest?

NYS distinctions:
- in NYS there is no such thing as an executory interest; all future interests in transferees are remainders, and they may cut short prior estates.
     examples:
       - in NYS, O conveys to A and her heirs, but if A dies without issue, then to B
         - A has a fee simple subject to complete defeasance
         - B has a contingent remainder in FSA

all future interests are alienable, can be passed inter vivos, ...

p. 238, problem 1(a):
"O conveys to A for life, then to A's children and their heirs, but if at A's death he is not survived by any children, then to B and her heirs." A is alive and has no children.
    - A has a life estate
    - A's children have a remainder in FSA

is the remainder vested or contingent?
    is the remainder given to an ascertained person? NO - at the time of the grant, A has no children.

    is the remainder subject to any condition that might cause it not to become possessory upon termination of the preceding estate?YES: in order for the remaindermen to take, they must exist!
THEREFORE, A'S CHILDREN HAVE A CONTINGENT REMAINDER IN FSA
is B's future interest a remainder or an executory interest?
   - must B's interest divest or cut short a vested estate in order to become possessory? B would not cut short A's interest. B's interest cannot cut short A's children's vested interested because their potential interest is currently a contingent remainder. B does not divest or cut short anyone else's interests
THEREFORE B'S INTEREST IS A REMAINDER IN FSA

is the remainder vested or contingent?
    is the remainder given to an ascertained person? YES - B

    is the remainder subject to any condition that might cause it not to become possessory upon termination of the preceding estate?YES: A may have children which survive him, and therefore B will not take.
THEREFORE B'S INTEREST IS A CONTINGENT REMAINDER IN FSA

is there a reversion?
   what was the grantor's interest? FSA
   has the grantor conveyed an estate equivalent to his own? NO - because A's children and B's interests are contingent remainders
   is the reversion certain to become possessory? NO - A could die and be survived by heirs. B has a remainder in FSA, and if B becomes possessory, then O won't take. 

problem: A subsequently gives birth to twins C&D.
there is no change to A's life estate.
C&D have a vested remainder in FSA
   - is the remainder indefeasibly vested, vested subject to open, or vested suvject to complete divestment?
   - could the remaindermen's interest be completely cut off by future events?
   - what is B's interest? B's interest is no longer a remainder, it is now a springing executory interest.
     B's future interest is executory, and because it must divest someone other than the original grantor, it is a shifting executory interest -->>> just because something was *once* a remainder doesn't mean that it will *always* be a remainder

is there are reversion? the reversion to O is gone.
  what was the grantor's interest? FSA
   has the grantor conveyed an estate equivalent to his own? YES - because A's children have a vested interest and B has an executory interest

   is the reversion certain to become possessory? NO - A could die and be survived by heirs C and/or D. B has an executory interest, and if B becomes possessory, then O won't take.

problem: C dies.
A's life estate does not change.
C's interest passes to his estate.
C's estate and D have a vested remainder in FSA subject to open and to complete divestment.
B has a shifting executory interest in FSA.

problem: A dies.
A's interest is gone. Now the class of remaindermen is closed, and so the vested remainder is no longer open an dis no longer subject to complete divestment.
C's estate and D are possessory of the interest. They now have an FSA.
B's executory interest fails and disappears.

p. 238, problem 1(b):
"O conveys to A for life, then to such of A's children as survive him, but if none of A's children survive him, to B and her heirs." A is alive and has two children, C and D.
A has a life estate
C*D have a contingent remainder in FSA
B has a future interest in FSA
   - is B's future interest a remainder or executory interest?
   - must B's interest divest or cut short
THEREFORE B HAS A REMAINDER IN FSA

is the remainder vested or contingent?
    is the remainder given to an ascertained person? YES - B

    is the remainder subject to any condition that might cause it not to become possessory upon termination of the preceding estate?YES: C and D may survive B, and therefore B will not take.
THEREFORE B'S INTEREST IS A CONTINGENT REMAINDER IN FSA

is there a reversion? (if no equal vestment, then there *must* be a remainder)
   what was the grantor's interest? FSA
   has the grantor conveyed an estate equivalent to his own? NO - because A's children and B's interests are contingent remainders. THEREFORE THERE MUST BE REMAINDER

   is the reversion certain to become possessory? NO - A could die and be survived by heirs. B has a remainder in FSA, and if B becomes possessory, then O won't take.

p. 238, problem 1(c):
O conveys to A for life, then to B and her heirs, but if A is survived at his death by any children, then to such suriviving children and their heirs. A is alive and has two children, C and D.
A has a life estate.
B has a remainder in FSA.
is the remainder vested or contingent?
    is the remainder given to an ascertained person? YES - B

    is the remainder subject to any condition that might cause it not to become possessory upon termination of the preceding estate?NO: C and D may survive B, and therefore B will not take.
THEREFORE B'S INTEREST IS A VESTED REMAINDER IN FSA

   - is the remainder indefeasibly vested, vested subject to open, or vested suvject to complete divestment?
   - could the remaindermen's interest be completely cut off by future events? YES, if A's survived at death by children
   - what is B's interest? B's interest is a vested remainder in FSA subject to complete divestment/complete defeasance
C and D have a future interest
   - is C and D's future interest a remainder or an executory interest?
   - is the remainder indefeasibly vested, vested subject to open, or vested suvject to complete divestment?
   - could the remaindermen's interest be completely cut off by future events?
   - what are C and D's interest? springing executory interest.
is there a reversion? (if no equal vestment, then there *must* be a remainder)

   what was the grantor's interest? FSA
   has the grantor conveyed an estate equivalent to his own? YES - because B has a vested remainder and C and D have an executory interest
   is the reversion certain to become possessory? NO - A could die and be survived by heirs. B has a remainder in FSA, and if B becomes possessory, then O won't take.
THEREFORE NO REVERSION TO O