Property II

Substantial AND unreasonable interference w/ another’s use and enjoyment of his property
Impacts of the interference. How bad is it? Aesthetics/annoying NOT substantial.
Context: character of the neighborhood. Is the pig in the parlor?
Intensity: is the impact too much?
How was the property used/enjoyed and how has that changed?
Balancing of the equities: try to ensure everyone can use efficiently.
Non-Conforming Use
Use that was lawful before the passage of a zoning ordinance that does NOT conform to the ordinance. Cannot be eliminated immediately.
Vested Rights
Used to determine a non-conforming use. Requires significant investment in the use and significant improvements in the land that commit the land to that use.
Must be necessary to avoid imposing an undue hardship on owner AND grant must NOT substantially impinge upon the public good AND intent of zoning ordinance.
Undue hardship: owner must first made reasonable effort to comply AND hardship cannot be self-inflicted.
Special Exception
Conditional use, determined by legislature will NOT ordinarily be detrimental to neighborhood.
Must have rational basis relating to police powers.
Cannot be arbitrary and capricious.
Categorical Taking:
Where a regulation deprives an owner of ALL economically viable use, there is a presumption of a taking. The burden shifts to the state to prove owner could NOT have done the use anyway.
Regulatory Taking:
Penn Central
3 factor balancing test: economic impact on owner; reasonable investment-backed expectations; character of gov’t action.
There must be an essential nexus and rough proportionality between the exaction and the impact of the proposed development.
Public Use Doctrine
The property taken by the gov’t under eminent domain must be intended for public use. So long as there is no bad faith in selecting the property, the legislature has wide latitude in determining what a public use is.
Just compensation OR terminate the reg and pay owner for any damages that occurred while it was in effect.
Requires 2 properties. Dominant receives benefit. Servient is burdened. NOT severable from the land.
In Gross
1 burdened property and a benefiting party. Do NOT run w/ the land. Assignable. NOT divisible.
Entitles holder to enter servient and make affirmative use of it.
Restricts servient owner’s use for the benefit of someone else.
Permissive use. Revocable at will.
Irrevocable License
Created when an owner stands idly by while a licensee makes substantial improvements on owner’s land made in reliance on the license and owner anticipates the improvements will be permanent.
Express Grant
Must be in writing and signed by the holder of the servient. Presumed perpetual unless specific time limit. Can be created by a conveyance, reservation, exception, or stranger to the deed.
actual use, open and notorious, adverse, continuous and uninterrupted.
Implied Easements:
Prior Use
At the time of severance: unity of title; apparent and continuous use; and reasonable necessity for the use.
Implied Easements:
By Necessity
At the time of severance: unity of title and strict necessity. Continuing necessity also required.
Determined by reasonable intent of original parties. Can adjust to serve original purpose.
Express: writing
Prescriptive: use
Prior use: use at severance
By necessity: holder decides what is needed for continuing necessity
Beyond the scope of an easement. Does NOT terminate the easement. It is a trespass. Remedy: injunctive relief. Hostile: can be used for prescriptive.
Express terms, merger, release, abandonment, estoppel, presciption, lack of necessity, frustration of purpose.
Promise to use property in some way to benefit others. Becomes a property issue AFTER a conveyance.
Runs w/ the Land
Intended to bind the property AND survive transfer.
Real Covenants:
Writing, intent to bind properties, notice, horizontal AND vertical privity, touch and concern.
Real Covenants:
Writing, intent to bind properties, vertical privity, touch and concern.
Touch and Concern
Covenant substantially alters the rights of ownership.
Equitable Servitudes
Writing, intent to bind the properties, notice, touch and concern.
Negative Reciprocal Easements
Exception to writing requirement for equitable servitudes. Inquiry notice of a common plan: enough compliance.
Merger, release, acquiescence, abandonment, unclean hands, laches, estoppel, unconscionable.
Intent to relinquish AND an act in furtherance.
Term of Years or Fixed Term
Fixed commencement and termination.
Creation: writing
Duration: fixed
Termination: automatic
Periodic or Month-to-Month/Year-to-Year
Creation: writing OR implied by lack of set termination date. Default at termination of tenancy at sufferance.
Duration: indefinite
Termination: notice (month/6 months)
Tenancy at Will
Creation: specific agreement that either party can terminate at will
Duration: until termination by either party
Termination: notice or death
Tenancy at Sufferance
NOT really a tenancy.
Creation: permissive possession ends and T has not relinquished
Duration: until ejectment or conversion to periodic
Termination: by L’s election w/in a reasonable time (ejection of accepting rent)
ALL T’s interests are transferred. A AND T liable to L because of privity.
T retains some rights. SL NOT liable to L because NO privity.
Duty of Good Faith and Fair Dealing in Alienation
L cannot unreasonably w/hold consent to alienation by T. L can only w/hold for commercially reasonable objections.
Duty to Repair:
Voluntary Waste
T is liable for intentional or negligent damages to the property.
Duty to Repair:
Permissive Waste
T has a duty to L to ensure damage does NOT worsen.
Defaulting T
L has the duty to mitigate damages. L must treat the unit as any other vacant stock and has the burden to show his efforts. L gets damages while using due diligence.
Physical dispossession. Relieves T of duty to pay rent.
NO longer acceptable. Use summary proceedings.
L’s action/inaction deprives T of use and enjoyment. T must vacate w/in a reasonable time.
Rebuttable presumption of retaliation by L for T enforcing implied warranty of habitability. After T makes repairs, presumption expires.
Implied Warranty of Habitability
T does NOT have to vacate.Requires adequate provisions for health and sanitation. L has duty to take reasonable steps to remedy. Look to health code for stds. T must put L on notice and wait reasonable time.
L’s Tort Liability
L liable for damages for injuries sustained in common areas, from faulty repairs, and from concealed defects.
Delivery of Possession:
American Rule
L has NO duty to put T in possession.
Joint Tenancy w/ Rights of Survivorship
4 unities required at all times: time, title, interest, and possession.
Severance: inter vivos conveyance
Tenancy by the Entirety
Requires 4 unities + marriage.
Severance: death, divorce, mutual agreement.
Tenancy in Common
Only unity required is possession. Freely alienable and devisable.
Wrongful exclusion of a co-tenant.
Remedy: ousted co-tenant is entitled to receive his share of fair rental value for time of ouster.
Partition in Kind
Division of the tract into parcels. Favored method.
Partition by Sale
Property is sold and proceeds divided. Permitted when fair and equitable physical division (in kind) is NOT possible.
Fee Simple Absolute
NOT defeasible
Fee Simple Determinable
AUTOMATICALLY reverts to grantor (possibility of reverter). As long as, while, until, during.
Fee Simple Subject to Condition Subsequent
Reverts to grantor at grantor’s election (right of reentry). But if, provided that, on condition that.
Fee tail
Until end of bloodline. Followed by reversion in grantor. And the heirs of his body.
Life Estate
Measured by the grantee’s life.
Life Estate Per Autre Vie
Measured by the life of another.
Term of Years
Specific duration.
Possibility of Reverter
AUTOMATICALLY vests in grantor. Follows fee simple determinable.
Right of Reentry
Vests in the grantor at grantor’s election. Follows fee simple subject to condition subsequent.
Subject to Executory Limitation
Defeasible fee that vests in a 3rd party rather than the grantor. Future interests are executory interests.
Shifting Executory Interest
Future interest that shifts from a 3rd party to another 3rd party.
Springing Executory Limitation
Future interest that springs out of the grantor.
Grantor retains future interest when he has NOT conveyed entire interest.
Executory Interest
Either cuts the previous interest short or NOT capable of becoming immediately possessory (ex: built in time gap).
1. Does NOT cut previous interest short
2. Capable of being immediately possessory
Vested Remainder
1. Ascertainable
2. NO unfulfilled conditions precedent
Contingent Remainder
Either NOT ascertainable OR there is an unfulfilled condition precedent.
Absolutely Vested Remainder
Definitely will vest.
Vested Remainder Subject to Open
At least one person is vested, but others could join the class (ex: unborn child).
Vested Remainder Subject to Complete Divestment
Condition subsequent could divest the vested remainder (ex: But if…, life estate after life estate and 2nd does not outlive 1st).
Rule of Convenience
Closes open classes in vested remainders subject to open so the interest can vest.
Doctrine of Worthier Title
Applies to remainder or executory interest in grantor’s heirs. Remainder/executory interest converted to reversion in grantor.
Shelley’s Case
One instrument, creates estate in a transferee, and also creates a remainder in the transferee’s heirs. Transferee gets the remainder.
Destructibility of Contingent Remainders
Contingent remainder destroyed if it does NOT vest at or before the termination of the preceding estate.
Rule Against Perpetuities
NO interest is good unless it must vest, if at all, not later than 21 years after some life in being at the creation of the interest. Applies to contingent remainders, executory interests, and vested remainders subject to open.
Condition Subsequent
Condition that could later divest another interest.
Wait and See
Jurisdictional. Only invalidate an interest if it actually vests after 21 years.
Uniform Statutory Rule Against Perpetuities USRAP
Wait and see until 90 years after rather than 21 years.
Cy Pres
Judicial tool for reforming a conveyance in a manner consistent w/ intentions of grantor. Ex: change age to 21 or say kids born while life in being alive.

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Property II

Affirmative Easement
easement holder is entitled to do a physical act on another’s land
Negative Easement
easement holder is entitled to prevent the owner of land from making certain uses of that land.; RARE.
Appurtenant Easement
Both benefit and burden run with the land; not tied to a particular person, remains indefinitely and is transferrable; cannot be severed; LAW FAVORS THIS
Easement in Gross
Burden runs but benefit does not.; Benefit attatched to a person.; Benefit not attatched to ownership: severable.; Generally transferrable.
Appurtenant v. In gross?

Look to intent of Grantor.

Easements cannot be used so as to create unreasonable interference with use/enjoyment of servient property.;

Ambiguous Easements


does use excede intended scope? addt’l sucharge? Divisible among new users?


Easement holder in free development v. servient estates right to security

App. of In Gross Easements


Yes if grantee has EXCLUSIVE control.

Presumed in commercial properties unless servient estate says NOT exclusive.;

**Any new use MUST be in lign with intent of grantor

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