Bar Study

A mfr is liable for a defective product, even if the ∏ misuses it, as long as the misuse is foreseeable

K's for goods over $500 or more must be evidenced by a writing to be enforceable. 3 exceptions to this rule:
1. specially mfr'd good unsuitable for resale in the seller's reg course of buz
2. Ks admitted in court
3. Ks partially accepted (enforced to the extent of acceptance)

1. goods must be specifically mfr'd for the buyer
2. seller makes a “substantial beginning”,meaning seller has done enough work to make clear she is working on S-M goods or else entered into a commitment to purchase them from someone else, and
3. goods must not be sellable in the seller's ordinary course of buz

two things must be satisfied - 1) common scheme for development? 2) notice of the existance of a covenant to the party sued?

1. common scheme for development?
o To est common development scheme
 1. common owner
 2. intent by the owner that there be a restriction of each lot
2.a. general scheme
 3. notice to all lot owners
 4. privity btwn lot owners and common owner
 = all buyers w/in common development scheme will be able to enforce restriction against other buyers

2) notice of the existance of a covenant to the party sued?
covenant in the chain of title gives constructive notice.

o Larceny – tresspassory taking, carrying away, personal property of another w intent to steal or permanently deprive
o Assperation – picked it up – that’s your carrying away, 6 inches is enough

specific intent - attempted larceny ok
if def had an honest belief, no need to be reasonable, then mistake ok

o How to Sever a Joint Tenancy: SPAM
 Sale, even secretly
• Joint tenancies will remain if there’s more than one left
• Other person will be a tenant in common w the other joint tenants.
• Joint tenancy severs when the K to sale is entered into, not at conveyance. This is bc of Equity Conversion, which provides that “equity regards as done that which ought to be done.”
 Partition
• 1. Voluntary agreement: Peaceful way to end relationship
• 2. Partition of Kind – court of equity’s to end if best interest for all, litigious situation
• 3. Forced Sale – if in best interest of all
 And Mortgage (Title Jxn)
• But not Lien jurisdiction

Lien jxn - other joint tenant take the property free of the mortgage
title - joint tenancy severed; mortgage is passes to whomever gets the property

-attaches as soon as the first juror is sworn, or first witness if a bench trial

-defense of DJ DNA if the second crime req's an element which is not an element of the first crime and vise versa.
i.e. second crime must be a lesser included crime for DJ to work

o GR: State laws that discriminate against resident aliens are subj to strict scrutiny except an aspect relating to citizenship – voting, pub school teacher, citizenship, police officer “important gov’t function” exception – rational basis
o Federal laws that discriminate against resident aliens get rational basis; fed gov't is free to make laws concerning aliens.

prohibits the introduction of prior oral or written evidence or contemporaneous written evidence to a fully integrated agreement.
it does not bar subsequent agreements.

o CL - Need new KSN for mod bc of pre-existing duty rule
o UCC – no new KSN bc of good faith rule
o B – both parties agreed to modify their original K
• If K is under $500, no req’t for modification to be in writing
o If a modification now places the price over $500, the modification must be in writing.
• Thus, a written K can be subsequently modified orally sometimes.
o But when the modification is not in writing and the K is still over $500, then the modification will not be valid.

Congress cannot touch it, prez can only pardon for federal offenses; governor pardons state law violations

A seller selling with a general warranty deed must warrant any subsequent purchase bc the warranty runs w the land.
Damages are limited to the purchase price rec'vd by the warrantor.
Quitclaim deed - gives no warranty of title

EE may not be usd to impeach a witness upon a collateral matter

LO owes a duty to invitees to warn of or otherwise make safe dangerous conditions of natural or man-made conditions that he knows or could reasonable discover by inspection

For a firm offer to remain open, no KSN is req'd for "merchants".
Firm offers are open for the time stated up to 3 months or 3 months if no time stated. Firm offer is irrevocable during that time.

A buyer may reject any installment that is nonconforming ONLY if it substantially impairs the value of that installment and cannot be cured. If nonconformity can be cured and the seller gives AA of its cure, shipment must be accepted by the buyer, provided the defect does not constitute a breach of the whole K.
Must cont to accept remaining installments

Attempts – must have the specific intent to commit the crime, e.g. for murder - must have specific intent to kill the person, to be charged with attempted murder.
o No where in the facts does the veteran intended anyone to die
o What would be the crime against the veteran if someone had died? Depraved heart murder, not a specific intent crime, no attempt for this type of crime

Stmt of a declarant's then-existing state of mind, emotion, sensation, phy condition (intent, plan, motive, design, mental feeling, pain, bodily health), but not incl a stmt of a memory or belief to prove a fact remembered unless relates to a will.

declarant's stmt of existing intent to do something in the future is admissible.

get better explanation but see question 32 on 100 q MBE exam

when FI raise a RAP, label the interests granted. If FI is void against RAP, mark out the FI.

If O grants a FSD followed by an EI, mark out the EI and O retains a possiblity of reverter, that can be devised when he dies.

If O gives a FSSSD, the O retains poss of reentry.

Def must show
 1. idea for the crime came from the police
 2. def was not predisposed to commit the crime prior to the solicitation

police reasonably believe they obtained valid consent for the search

A third pty beneficiary is one who is the intended beneficiary of a contract between the promisor and promisee. The TPB may sue the promisor of the K.

o 1. Intended or incidental beneficiary? Look at the intent of the K’ing parties. Main intent to benefit the third party?
o 2. Can K be rescinded or modified w/o thrd pty consent? i.e. can third pty sue under K – vested right? Vesting occurs in 1 of 3 ways (already typed this) – notice is not enough, must assent to the K and rely
o 3. what defenses can be raised against an intended third pty beneficiary?

o Arises when the contents of a writing are at issue, rule is original document must be produced unless it can be shown the original is lost or destroyed in good faith, then any form of secondary evidence can be substituted for the original.
 Secondary evidence is offered
 “best evidence rule” is usu the wrong answer

o Abandonment – act showing intent
o Written release
o Destruction of servient tenement
o Condemnation of servient tenement – taking, eminent domain
o Merger – dominant and servient tenements come under common ownership

state laws discriminating against out-of-state residents employment or right to earn a living triggers the Privileges and Immunities Clause of Art. IV.

Out-of-state residents are not considered protected class under 14th A

Perhaps more of a due process if state takes away a recognized liberty or property

res ipsa loquitur – things usu don’t happen if not negligence occurred
o But def can offer evidence to rebut this presumption --
Tortuous act caused the harm, then the jury can make that conclusion and jury verdict will not be set aside

o Streets, sidewalks and parks – “historically” assoc w expressive conduct
o Restrictions on speech due to an unruly audience will only be upheld when the police are unable to control the crowd.

o == Gov’t may regulate speech in pub forums w reasonable time, place and manner regulations that:
 Are content neutral
 Are narrowly tailored to serve significant gov’t interest and
 Leave open alternative channels of communication

o Time is of the essence clauses – usu treated as boiler plate. Hwr, if the clause is specifically written in the agreement using the phrase “time is of the essence.” Whether the contractor’s failure to deliver the house on time will allow the buyer to void the K.
o K here says “must” be done by…
o If clause is merely boilder plate, as long as house is completed on or near the due date, will probably win and buyer will not be able to walk away.

1) intent to kill (express malice)
2. intent to inflict great bodily injruy
3. reckless indifference to an unjustfiably high risk to human life (depraved heart)
5. intent to commit a felony ("felony murder")

1. act by def amounting to extreme and outrageous condut
2. intent to cause sever emotional distress
3. causation
4. damages

o Transfer does not work with IIED and conversion, intend a batter and a IIED results  transferred intent doesn’t comply
o Rec’v notice of potential problem with the tire
 The fact does not make the driver not responsible – can sue both joint and severly and liability

commerical appropriation
intrusion on Pla's seclusion or private affairs
publication by df of facts placing Pla in false light
pub disclosure of private facts about the Pla

Last BFP who gave value and who had no notice of earlier sale

last BFP w/o notice wins
-- w/o noice, first to record

1st to record is the winner (need to be BFP???)

o 1. privilege against self incrimination applies in all settings
o 2. if u assert your 5th A privilege on cross-examination, your direct testimony pertinent to that question is stricken from the record.
o 5th A trumps 6th A
o 5th A trumps impeachment, 6th A trumps impeachment

everyone has right to an adequate cross-examination; if it cannot be obtained, the remedy is to strike the direct testimony of the witness

Police are permitted to make a complete search of an automobile if there is PC to believe the car contains fruits, evidence, instrumentalities of a crime.

Inventory search

All Ks are assignable and delegable except unique personal service Ks and long term requirement K’s

don't need to be in writing???

o Novation – occurs when the two ptys agree in writing to release one of the ptys and substitute a replacement == creates a new K

o If u assume a mortgage, you are now personally liable
o Original mortgagor is still on the hook as well
o Bank is considered intended third party beneficiary btwn original originor and the person who has assumed the mortgage
o Original mortgagor is secondary liable, new assumed buyer is first liable
= considered jointly liable

- quitclaim puts the seller/party off the hook of the creditor,
o If Creditor’s mortgage is satisfied by the quitclaim deed from the developer, developer free and clear w regard to the Creditor
o Bc of quitclaim deed, creditor got property as is, no warranties so if 2nd mortgage isn’t paid
o Creditor’s mortgage never foreclosed so it never wiped out subsequent mortgage of the bank
o Bank mortgage now becomes first mortgage. bank can do one of two things – go after the developer or can foreclose on the property and sell it out from under the creditor
o So creditor is not going to prevail against the bank, can prevail only against the developer

Must decide whether cause was foreseeable or non-foreseeable
• Typical e.g.s of foreseeable causes
o 1. subsequent illness or injury
o 2. injury to rescuers
o 3. neg of medical personelle
• Typ unforeseeable/superseding causes
o Criminal acts of third ptys (but not when the situation is specific such that the type of behavior is foreseen, e.g. nursing home who takes violent patients)
o Intentional tort of third ptys
o Acts of god
--> negligence not good enough

o FRE 612 – present recollection refreshed is done in 2 ways:
 1. leading questions
 2. some type of writing or recording can be used to refresh recollection
o Scenario – witness cannot remember so atty will give doc to refresh. Witness looks at doc and remembers. Usu a writing used to refresh will not be placed into evidence
 Opposing counsel can: inspect document, cross examine with it, introduce all or parts of it into evidence usually for purposes of impeachment – D
 If witness memory not refreshed and he just reads it, then its coming in, but has to be authenticated
• Past recollection recorded – can read from the document but must be in evidence first - automatically introduced into evidence, but only if the witness doesn’t remember
• 71 – past recollection recorded
o If the witness on the stand has insuff’t recollection to testify to a relevant even fully and accurately, FRE 803(5) permits introduction of an out-of-court written record of the event made by the witness at the time the witness’s memory of the event was fresh
  if memory not refreshed by looking at the doc, witness will be able to read from the doc
o after that, the opposing counsel can offer the rest of the doc for fairness
o not best evidence – contents not in question

o Disturbance that substantially interferes w someone’s use and enjoyment of own land
o Think noise, smells, smoke..
o Best defense is hypersensitive plaintiff? Need small small #
o Coming to the nuisance hardly ever works
• 1 - nuisance – gotta own or lease the land for a successful action

– sublease – transfers possession for a term less than the balance remaining on the lease, no privity
o Assignment – transfers remaining balance on the lease, there is privity of estate btwn LL and an assignee
 Privity of K if the assignee assumes the contractual obligations of the lease
 If assignee assigns to someone else, if that new assignee doesn’t assume the lease, they are done with the LL

Def only bears the burden of proof as to defenses and other exculpating or mitigating facts.

Prosecution must prove every element of the crime beyond a reasonable doubt.

o Construction of a brand new blg before its finished w/o fault of either party, builder bears the risk of loss. Constructors duty not discharged
-->destruction of bldg does not render the K impossible or impracticable; no restitution or quasi-K avail when subj matter of construction K is destroyed
o Remodeling/repairs of an already existing bldg – owner bears the risk of loss

State powers, individual rights
o 10th A powers allows State to enact laws for health, safety, welfare, morals aesthetics of community so long as the state law doesn’t conflict w superseding federal law
o Also, as long as not in an area where Congress intended to occupy the field, or state law will be upheld as valid

land sale K and date set to closing = estrow doctrine
o During escrow, buyer is considered to be the equitable owner – buyers bears risk of loss if prop is damaged or destroyed during escrow period.
o Condemned by the gov’t during escrow – buyer will get the just compensation

specific performance is always appropriate to enforce a valid land sale K

elaborate pretrial notice procedure must be followed to assure that the other pty ahs opp to prepare and meet the hearsay evidence.
Circumstantial guarantees of trustworthiness present in the stmt – does not happen when telling the hypnosis
o = someone has no reason to lie

delivery of a deed = need intent
o Whether the grantor intended to convey the property – delivery of deed goes to the grantors intent
o Recording and signing is enough to show delivery
o Here there’s intent fact that she couldn’t do it doesn’t matter

o To answer a character evidence question:
 1. Decide what court you are in.
 General rule: character evid not allowed in civil, unless:
• 1. defamation
• 2. fraud, misrepresentation – def’s character at issue for truthfulness
• 3. Negligent entrustment – trustee’s character
• 4. Child custody – parent’s character
• 5. tortuous assault and battery where Def is claiming self defense, victims character for violence or turbulence is at issue

• Can change the terms by writing on a check
o Accord – new agreement, satisfaction is when this new agreement is performed
o Cashing of the check is satisfaction of the K – impliedly agreeing

• 14th A does not apply to federal statue
• Fed Statute only req’d to meet 5th A Due Process
• States Due Process through the 14th A

o 1. fee simple determinate – duration  for as long as, during, until, while
 O has possibility of reverter, automatic
o 2. Fee simple subj to condition subsequent – conditional language  but if, provided that, however if..
 Right of Reentry – not automatic
o 3. Fee simple subj to executory interest
 Can use either language
 Never goes to O, always goes to a third party who has EI
 Subj to RAP

destruction of improvements on life estate that increase value of the property generally are not allowed except where there’s a change in condition that have made the destruction of the improvement reasonably necessary.

Life Tenant may alter or demolish existing bldgs if:
i) market value of the future interests is not diminished; and either
ii) remaindermen do not object; or
iii) substantial and permanenet changes in the neighborhood conditions deprived the property in its current form of reasonable productivity or usefulness.

generally void:

• Absolute ban on power to transfer not linked to any time limited purpose, that absolute ban is an annulity
o “To A so long as she never attempts to sell.”  VOID, so A has a FSA
o “To A so long a she doesn’t attempt to sell this year, when clouds on the title will be resolved.” --> GOOD, A has FSD, O has POR

• Life tenant is responsible for paying taxes on the property. Life tenant is resp for interest only on mortgage, but not principal.
• Life tenant can only maintain the property and not sell off any of the natural resources except for existing exploration of these resources

o GR: LL are not liable for latent defects, unless knew or should have known of defect
 Exception: LL are liable for latent defects even if they neither knew or should have known if:
• The lease is a short term and
• Property is furnished

one that stays past the end of the lease. LL can only impose a new periodic tenancy
o Length? Residential: month-to-month, commercial – period of prior lease not to exceed one year
o Amount? If notified prior to the lease expiration – must pay new rent amt

o Foreclosing mortgage holder must notify everyone subsequent.
o A foreclosure sale wipes out all jr mortgages
o Money left on foreclosure sale pays off forclosing mortgage first then subsequent ones if there’s money left
o All mortgages to the left of the foreclosure will continue and follow the property but nothing to the right follows

• Covenant run w the land?
o Signed writing – buyers acceptance and recording of the deed containing covenant is legal equivalent of signature
o Intended to run w the land? Touches and concerns the land, since it controls the grantee’s land use
o Horizontal privity?
o Vertical privity?

a chattel that has been annexed to the real property is converted from personal to realty. As an accessory to the real propery, it is subj to any mortgage on the real property
o Whether the person who brings the chattel onto the land owns both the chattel and realty, whether the item is a “fixture” depends on the objective intension of the party who made the annexation. Intention is determined by considering:
 Nature of the article
 Manner in which it is attached
 Amt of damage to remove it
 Adaptation of the item to the use of the realty
o Art. 9 of UCC allows fixtures to be protected against mortgages when they foreclose. Must do a fixture filing w/in 20 days of installation
o Exception: using a major retailers cc to buy fixture makes an automatic fixture filing.

• When a mortgage transfers title to another, the transferee takes “subj to” the mortgage, meaning the transferee is not liable to the mortgagee and cannot be sued
o If the buyer “assumes” the mortgage, then he could be sued for the dept
o Initial person taking out mortgage is always liable.

• Landowner is strictly liable to the adjacent landowner for support of the land
o Improvements on the land – must show negligence

o 1. promise to ship
o 2. prompt shipment of conforming goods
o 3. prompt shipment of non confirming goods
 = acceptance and breach unless buyer notifies seller
 Letter of accommodation = counter offer

• UCC – acceptances w varying/add’l terms is effective unless:
o Offer makes his acceptance conditional on assent – no K – on the new terms
o Offeror objects to the add’l diff’t terms in timely fashion
o New terms materially alter the economic risks
 Incls price change and liability change

• Offer terminated:
o Revocation
o Rejection
o Counter offer
o Lapse of time

o 1. accept and pay K $
o 2. timely reject, sue for damages, notifies seller w/in reasonable time
 If reject goods, it need only hold for a reasonable time for seller to remove them. If seler has no agent or office at place of rejection, buyer may be under obligation to sell products if they will perish. But if seller is located in same city, no obligation to sell.
o 3. accept in part and reject in part

o Only applies to acceptances
o Competing acceptance and rejection  which ever gets there first
o Does not apply to option K’s
o Reasonable reliance changes outcome???

• Promissor estoppel
o 1. promise
o 2. reasonable expectation of reliance on promise
o 3. Actual reliance
 Change of position
o 4. interest of justice to enforcement

o Can send a conformation memo re oral deal if
 1. both are merchants
 2. objection must be w/in 10 days

telling the other party you will not perform w/o more money is an e.g.

not an anticipatory repudiation but a prospective inability to perform. Other party can make a demand for adequate assurances or wait

• Non performance on a K is excused usually only when there is an objective impossibility – no body at the time could perform, Act of God.

• Felony murder – a serious, inherently dangerous felony + murder
o Burglary, arson, kidnapping, robbery, rape (BARRK)
o Co felon exception to felony murder

• Embezzlement – misappropriation of property by one in lawful possession of it
o Lower echelon employees usu larceny

• Property obtained by false pretenses – def obtains title to the property by false misrepresentation of a material present or past fact that causes the victim to pass title to his property to the def, who knows his representations to be false w intent to defraud

• Reasonable expectation of privacy? To determine whether need for search warrant
o Curtilage of home - yes
o Land not part of cartilage - no

Only w regard to Taxing and Spending

Congress can re anything crossing state lines that has a substantial economic affect on IC and

CID - Congress can reg anything intrastate that has a cumulative impact on IC when taken in the aggregate.

If fired for speaking - has right to hearing to determine whether 1st A rights were violated.
gov't employee may not be terminated for expressing views relating to pub issues, but can be fired for speech that disrupts the em'er's policies or undermines the em'ers authority

Pub em'ee subj to removal only for "cause" has a property interest in job and must be given notice of the chargers against her that are the basis for firing and a pretermination opp to respond to those charges

Court may not determine reasonableness of invidiual's religious beliefs. If statute as written or applied interfers w a citizen's religious belifs, the BOP on state to show a compelling pub interest in enforcement.

Court can only determine the nature of the def's belief, whether the def has a sincere and good faith belief

Cover cost $$ - K $$- make a reasonable purchase of substitute goods and then recover damages btwn K price and the "cover" price

1. Miranda not complied with
Was Miranda given contemporaneous enough w the confession? (look up exact temporal language)

2. confession of involuntary

3. confession direct result of an illegal arrrest

request for counsel accompanied by a willingness to speak w/o counsel, is a valid waiver during interrogation.

GR: Character evidence is inadmissible unless or until Def opens the door
Types of CE: ROSA - Rep, opinion, Specific Acts

1. Prosecution cannot show Bad Acts for propensity
2. def allowed to present relevant good character traints to est he acted in conformity
Limited to Rep or Op on direct
3. If Def offers good CE, he opens the door. Prosecution can rebut w Def's bad character
- Rep or Opin only on direct??
4. EVIDENCE of prior crimes or prior bad acts NEVER allowed. Hwr, admissible if admissble to prove another point in the case: MIMIC
5. Def testifies - automatically places C at issue

Crim - satisfies prosecutors burden of producing evidence; jury permitted to find facts judicially noticed but not req'd

Civil - judicial notice is binding on jury

1. before the jury on which he is in paneled
2. post verdict proceeding re certain matters involving jury deliberations

for a violent crime, can only offer CE of nonviolence. Def offering evidence of honesty is not allowed bc honest ppl can commit violent crimes.

witness must be there to testify at trial and be subj to cross-examination.

if the witness does not die, she must be unavailable to testify before the DD is admitted.

1. Prior Inconsistent Stmt - only to impeach, not for truthfulness unless PIS given under oath and part of a proceeding
2. Bias or Motive - to misrep bias or motive, always material and admissible. EE allowed if witness denies motive
3. Prior Conviction - crime involving dishonesty, false stmt always comes in; felonies - discretion of judge to allow in
too remote if 10 yrs lapsed from date of release
4. Specific Acts of Misconduct that bare on un/truthfulness - offered on cross, no EE
5. Bad rep for truth or veracity - may be proven w EE

Rape differences
-Rep and Opinion not admitted to show predisposition
-Specific Act exceptions -- ??
-

1. Present sense impression
2. excited utterance
3. stmt concerning mental/phy cond
4. stmts for purposes of med diagnosis
5. recorded recollection
6. buz record
7. former testimony
8. DD
9. stmt against interest
7-9 declarent must be unavail

1. Admissions
2. Prior Sworn Inconsistent stmts
3. Prior consistent stmts
4. Prior ID
5 State of mind
6. Verbal acts -transaction words, indep legal sig, tortous words

a. No duty to protect one off premises from natural conditions on the premises;
b. No duty owing for articial conditions. There are 2 major exceptions:
1. There is a duty for unreasonably dangerous artificial conditions or structures abutting adjacent land.

2. LO has duty to take precautions to protect person from passing by from dangerous conditions.
i. This incls liability of owner for damage caused off the premises by trees on the premises (e.g. falling branches)

i. No duty is owned to an undiscovered trespasser. To discovered or anticipated trespassers, the landowner must:
1. warn of or make safe concealed, unsafe artificial conditions known to the landowner involving risk of death or serious bodily harm; and
2. use reasonable care in the exercise of “active operations” on the property
3. No duty for natural conditions or less dangerous artificial conditions
4. Easement and license holders owe a duty of reasonable care to trespassers.
b. Attractive Nuisance Doctrine
i. For artificial conditions and trespassing children, ∏ must show
1. dangerous condition on the land owner should be aware of
2. owner knows or should know children frequent the vicinity of the condition
3. condition is likely to cause injury, i.e. dangerous bc children’s inability to appreciate the risk, and
4. expense of remedying the situation is slight compared to the magnitude of the risk

• Contracts Clause – Impairment of Contract - Prohibits states from enacting any law that retroactively impairs contract rights; it does not affect K’s not entered into
o No comparable clause applicable to fed gov’t, but flagrant K impairment would violate 5th A Due Process Clause.
o Basic Impairment Rules:
 Private Ks – Intermediate Scrutiny
• State Leg that substantially impairs an existing private K is invalid unless leg (i) serves an important and legitimate pub interst and (ii) is a reasonable and narrowly tailored means of promoting that interst
 Pub Ks –Strict Scrutiny
• Leg that impairs a K to which a state is a party is tested by the same basic test, but the K will rec’v stricter scrutiny, esp if leg reduces the contractual burdens on the state
• Ex Post Facto Laws
o These are laws that retroactively alter criminal offenses or punishments in a subt’lly prejudicial manner for purpose of punishing a person. Is prejudicial if:
 Makes criminal an act that was innocent when done
 Prescribes greater punishment for an act than was prescribed when act was done
 Reduces the evidence req’d to convict a person of a crime from what was req’d when the act was commited.
o  only applies to criminal cases
• Bills of Attainder
o BOA are legislative acts that inflict punishment on individuals w/o a judicial trial. Both fed and state gov’ts are prohibited from passing BOA
• Due Process Considerations
o Retroactive law must pass muster under Due Process Clause
o If retroactive law does not relate to a fundamental right, it need only be rationally related to a legitimate gov’t interest.

• Basic Principle
o A fair process (e.g. notice and a hearing) is req’d for a gov’t agency to indivudally take a person’s “life, liberty, or property.” Only intentional – not negligent – deprivation of these rights violate DPC
• Liberty is not specifically defined, incls more than just freedom to bodily restrain (e.g. incl right to K and engage in employment). Deprivation of liberty occurs if a person:
o Loses significant freedom of action; or
o Is denied a freedom provided by the Const’n or statue
• Property incls more than personal belongings and realty, but an abstract need or desire for (or a unilateral expectation of) a benefit is not enough. There must be a legitimate claim or entitlement to the benefit under state or fed law. E.g.s incl continued attendance at pub school, welfare benefits, gov’t employment
• What type of process is req’d? 3 part balancing test:
o Importance of the interest to the individual
o Value of specific procedural safeguards to that interest
o Against gov’t interest in fiscal and admin efficiency
o == presumably, fair procedures and an unbiased decisionmaker will always be req’d. Notice and a chance to respond before termination of the liberty or property interest are usu req’d

• 5th A provides that private propery may not be taken for pub use w/o just compensation, applicable to states via 14th A
• “Public use” limitation liberally construed – if gov’t action is rationally related to a legitimate pub purpose (health, welfare, safety, economic, aesthetic reasons) the pub req’t use is satisfied.
• What is a taking v regulation?
o 1. actual appropriation or physical invasion will = a taking, except in emgergency situations
o 2. Use restrictions
• Denial of all economic value of land = taking; temporary denials of all economic use is not a per se taking
• Decrease in economic value is a balancing test – decrease in value is not a taking if they leave an economically viable use for the property
o Remedy – “just compensation” if reg amts to a taking, gov’t must: pay prop owner just compensation or terminate the regulation and pay for damages occurred
• Worthless property – just compensation is measured by the loss of the owner not by gain to the taker.

o 1. strict scrutiny – gov’t has BOP
 regulations affecting fundamental rights (interstate travel, privacy, voting, First A) or
 involve a suspect class (race, origin, alienage)
 = Law is upheld if it is nec to ach’v a compelling gov’t purpose. Will not be upheld is there is a less burdensome alternative to achv’t gov’ts goal.
o 2. Intermediate Scrutiny – BOP unclear, prob gov’t
 Regs involving quasi-suspect classification (gender and legitimacy)
 ==Law is upheld if it is substantially related to an important gov’t purpose.
o 3. Rational Basis – BOP is person challenging
 Regulations that do not affect fundamental right or involve a suspect or quasi-suspect classification. (e.g. age, disability, poverty)
 == Law is upheld if it is rationally related to a legitimate gov’t purpose – usu upheld unless it is arbitrary or irrational.

• Due Process: when a fundamental right is limited, the law or action is evaluated under strict scrutiny. In all other cases, the rational basis standard is applied.
• Proving Discriminatory classification
o For strict and intermediate scrutiny, there must be intent on part of the gov’t to discriminate. Intent may be shown by:
 A law that discriminates on it face
 A discriminatory application of a facially neutral law or
 A discriminatory motive behind he law
• Effect along is not enough, must have evidence of a history of discrimination

• Fundamental Rights
o Right to Privacy – various privacy rights incl marriage, sexual relations, abortion, childrearing as fundamental rights.
 1. Marriage – right of a male and femail to enter into (and probably dissolve) the marriage relationship if fundamental. Hwr, statute restricting the rights of prison inmates to marry will be upheld if reasonably related to legitimate penological interests.
 2. Use of Contraceptives
 3. Abortion – right to abortion w/o interference from stat under certain circumstances. Hwr, strict scruinty cannot be applied bc state has 2 compelling interests that often compete: protection of woman’s health and protecting the fetus that may become a child.
• SC has adopted 2 basic rules:
o 1. pre-viability rule – before viability (a realistic probability that the fetus could survive outside the womb), a state may adopt regulation protecting the mother’s health and fetus if re does not place an “undue burden” on or sub’l obstacle to the woman’s right to obtain an abortion.
 E.g. of no undue burden, informed consent, 24-hr waiting pd, parental consent/notice w judical bypass, licensed physicians only, barring a well-defined partial-birth abortion procedure when other methods are avail
 Undue burden – notifying spouse
o 2. post-viability – may prohibit abortion unless woman’s health treatend
 4. Obscene reading material in ones home, but not the right to sell, purchase or transport such material
 5. Keeping extended family together
 6. rights of parents – Parents have fundamental right to make decisions concerning care, custody, and control of children
 7. Intimate Sexual Consent
 8. Collection and Distribution of Personal Data – No privacy Right
o RIGHT TO VOTE
 Residency req’ts ok
 Property ownership not ok
 Poll taxes not ok
 One person, one vote principle
o RIGHT TO TRAVEL
 Incls interstate travel but not international travel
 Inappropriate residency req’ts – one-yr req’t to rec’v full welfare, medicare, vote; appropriate residency reqts – 30-day residency to vote, one year residency to get divorced

o Overbroad regulation invalid – if reg of speech punishes a substantial amt of protected speech in relation to its plainly legitimate sweep, the regulation is facially invalid unless a court has limited construction of the regulation so as to remove the threat to const’lly protected expression
o Vagueness Doctrine – reg’s that fail to give persons a reasonable notice of what is prohibited, may violate due process and 1st A.

speech and assembly can be more broadly regulated in nonpublic forums. Regulations are valid if they are:
o Viewpoint neutral and
o Reasonably related to a legitimate gov’t purpose

o 1. Incitement: speech can be burdened if it creates a clear and present danger of imminent lawless action. It must be shown that imminent illegal conduct is likely and that the speaker intended to cause it
o 2. Fighting words: true threats (e.g. cross-burning w an intent to intimidate), if fighing words are likely to incite immediate physical retaliation in an avg person. Fighting words statutes that are content-based (e.g. fighting words that insult on basis of race, religion) are invalid
 == statutes attempting to punish fighting words are usu vague or overbroad
o 3. Obscene – speech is obscene if it describes or depicts sexual conduct, that, taken as a whole, by the average person:
 1. appeals to the prudent interest in sex, using a community standard;
 2. is patently offensive and an affront to contemporary community stnds; and
 3. lacks serious value (literary, artistic, political, or scientific), using a national reasonable person standard
 Different Standard for Minors
• Picture of Minors – gov’t may prohibit the sale and distribution of visual depictions of sexual conduct involving minors.
• Gov’t may not bar visual material that only appear to depict minors.
 Land Use Regulations
• Left off here…p44.

gets 1st A protection if truthful. Hwr, the following is not protected:
o 1. commercial speech that proposes unlawful activity or is misleading or fraudulent. Regulation will be upheld only if it:
 Serves a substantial gov’t interest
 Directly advances that interest
 Is narrowly tailored to serve that interst
• Does not req’ the least restrictive means of accomplishing the leg goal; must be a reasonable fit btwn goal and means chosen.

preventing speech before it occurs, rather than punishing afterward is rarely allowed. Heavy burden to justify prior restrain:
o 1. must show some special societal harm
o 2. Procedural safeguards in place:
 a) standards must be narrowly drawn, reasonable and definite;
 b) injunction must be promply sought;
 c) prompt and final determination

The statute of limitations for AP is tolled by the owner's disability ONLY if he was under the disability at the time his cause of action accured (when claimant begins AP)

There is an implied warranty in every land sale K that at closing the seller will provide buyer w marketable title, i.e.e title reasonably free from doubt.

What affects marketability:
existing violation of zoning ordinance
option to purchase by a lesee (will not violate RAP)
signficiant encroachment
easement but not when the buyer is aware of a visible easement esp when it enhances the value of the property.


Does NOT affect marketability:
zoning restriction
potential zoning violation
violation of subdivision, housing, building cods

Holder of the servient state has the right to choose the location of an easement by necessity.

Even if two estates merge and then are resold and split thereby extinguishing the easement, if the land is sudivided again in a way that resulted in one owner being deprived of access to a pub road, a new easement of nec will be created by operation of law.

Title theory - title is in the mortgagee (bank) until the mortgage has been satisfied or foreclosed. Thus, bank is entitled to possession on demand at any time.

Lien theory - title remains in the mortgagor (debtor) and the morgagee holds only a security interest in the property. Thus morgagee may not take possession before foreclosure.

A mortgage is a security interest in the property and a note is evidence of the underlying debt.

YES

A LO cannot alter the rate or manner of natural flow of surface waters where such actions would injure others above or below him.

can only be held by H and W. Carries ROS and can be terminated only by death of a spouse, divorce, mutual agreement, or execution by a joint creditor of both spouses.

Both must join in a mortgage bc one spouse acting alone cannot convey or encumber the property.

Generally, a conveyance of real property contains no warranties of quality or fitness for purpose, but there is a recognized exception for the sale of a new house by the builder. There's an implied warranty that the new house is designed and constructed in a reasonably "workmanlike" manner and suitable for habitation.

A seller may be liable if he purposely conceals defects on the property.

Fee Simple Determinable
Terminates upon happening of a stated event.

1) “To A for so long as…” “To A during..” “until” while..
2) Grantor must use clear durational language
3) If stated condition is violated, forfeiture is automatic
4) Devisible, alienable, desendable always subj to the give condition
6) Future Interest: Possibility of Reverter
= Frank Sinatra Didn’t Prefer Orville Redenbacher (FSD-POR)

"To A and the heirs of his body."

1) Historically, pass directly to grantees lineal blood descendents no matter what
2) Today it creates a FSA
3) Future Interest – yes, called a reversion; third party – someone other than O – called a remainder

o “To A for the purpose of…”
o “To A with the hope that…”
o “To A w the expectation…”

Fee Simple Subj to a Condition Subsequent

Grantor reserves the right to terminate the estate upon happening of a stated event. Does not automatically terminate.

Uses conditional words: "upon condition that", "provided that", "but if" and "if it happens that"

Future Interest in Grantor -- Right of Entry = Power of Termination

Fee Simple Subj to Executive Interest

Fee simple estate terminates upon the happening of a stated event and then passes to a third party rather than the grantor.

• Measured in explicit life time terms and never in terms of years
• A is a life tenant, O has a reversion, meaning that at the end of A’s lifetime, the estate reverts back to O and O’s heirs.
• Life Estate pur autre vie: LE measured by a life of someone else
• O has a reversion
**LE can be determinable, subj to condition subsequent, and subj to an EI

If FI goes to a third party, that party has a remainder

o Future Interest: O has a reversion; third party has a remainder.

• Waste:
o Life tenant is entitled to all ordinary uses and profits from the land
o Life tenant must not commit waste – ie not do anything to hurt those future interest holders
 3 types of waste:
• 1. Voluntary or affirmative waste: Overt conduct that causes a drop in value
o Not allowed to consume or exploit Natural Resources on property unless: PURGE.
o PU: Prior Use, meaning prior to the grant, the land was used for exploitation
 Open Mines Doctrine: If mining done on land before life estate began, tenant is allowed to mine but limited to mines already open. Thus, no new mines.
o R: Reasonable Repairs and Maintenance:
o G: May exploit if expressly granted that right
o E: exploitation meaning, land is suitable only to exploit
• 2. Permissive Waste: This occurs when land is allowed to fall in disrepair. Life tenant must reasonably maintain; doesn’t have to do no more than and no more less.
o Celing leaking – not obliged to fix entire leaking ceiling but should fix/patch the lease
o Lack of maint - = waste you will have to pay
o Ordinary taxes – life tenant is obligated to pay all ordinary taxes on the land, to the extent of income or profits from the land. If there is no income or profit, life tenant is req’d to pay all ordinary taxes
o Not req’d to insure
• 3. Ameliorative Waste: life tenant must not engage in acts that will enhance the value unless under certain conditions.

o The Possibility of Reverter, companies only FSD
o Right of Entry, Power of Termination, accompanies FSSCD
o The Reversion: A reversion is the future interest that arises in a grantor who transfers an estate of less quantum that she started with, other than a FSD or a FSSCS, e.g. life estate

All of these interests are vested and not subj to RAP

o Vested Remainder – 3 species:
 1. indefeasibly vested remainder – an existing and ascertained person and is certain to acquire an estate in the future w no conditions attached; not subj to a condition precedent.
• Remainderman has right of immediate possession upon normal termination of the preceding estate.
• Best kind of vested remainder you can ask for; no strings attached.
• E.g. 20: “To A for life, remainder to B.” A is alive. B is alive. A has LE; B has a indefeasibly vested remainder
o At CL, if B dies before A, B’s future interest passes by his will or intestacy to his heirs
 2. vested remainder subj to compete defeasance (also known as vested remainder subj to total divestment) – Vested remainder hat is subj to a condition subsequent.
• Remainderman exist – his taking is NOT condition precedent, hwr, right to possession could be cut short to a condition subsequent.
o Apply the “comma rule” – insert p 17-18
o E.g. 17
 3. the vested remainder subj to open – vested remainder created in a class of persons that is certain to become possessory, but is subj to diminution.
• A class is open if it’s possible for others to joint
• A class is closed when max membership has been set
• How do u know when it’s closed? It closes when any member can demand possession.
o Insert 18, 19
 Remainderman wait patiently to let the preceding state run its course, either a life estate or a term of years (known fixed years)
• Never follows a defeasible fee, cannot divest someone else
o Contingent Remainder or
 Remainders are not vested when:
• 2 ways to know its contingent
o 1. unknown or unknowable takers
 “To A for life, then to B’s first child.” A is alive. B, as yet, has no children.
 “To A for life, then to B’s heirs.” B is alive. Bc a living person has no heirs, while B is alive his heirs are unknown.
 “To A for life, then to those children of B who survive A.” A is alive We don’t know which, if any, of B’s children’s will survive A.
o 2. Subject to a Condition Precedent
 A condition is a condition precedent when it appears before the language creating the remainder or is woven into the grant to remainderman.
 “To A for life, then, if B graduates from college, to B.” A is alive. B is now in HS. Before B can take, he must graduate from college. He has not yet satisfied this condition.
 B ha a contingent remainder
 O has a reversion.
o Executory Interest – not a remainder bc it takes effect by cutting short someone else’s interest; they divest a transferee’s preceding freehold or follow a gap in possession or cut short a grantor’s estate.
 Shifting EI: It always follows a defeasible fee and cuts short someone other than the grantor.
• E.g. 24 “To A and her heirs, but if B returns from Canada sometime next year, to B and his heirs.”
o B has a shifting EI (Dr. Evil)
o B does not have a remainder bc remainders never follow defeasible fees
o A has a FSS to B’s SEI
o No RAP bc’s one year limit on B’s power
 Springing EI: Cuts short the grantor’s estate.
• “To A when A marries B”

Future interest in a third person that can become possessory on the natural expiration of the preceding estate. It cannot divest a prior estate.

It can never follow a fee simple estate

 Rule of Destructibility of Contingent Remainders: At CL, CR was destroyed if it was still contingent at the time the preceding estate ended
• “To A for life, then to B if he reaches age 21” If A dies before B reaches 21, B’s remainder is destroyed.
• == now Abolished

 Rule in Shelley’s Case: At CL, the rule would apply only in one setting:
• “To A for life, then, on A’s death, to A’s heirs. i.e. created a life estate in A an gave remainder only to A’s heirs, present and Future Interests would merge, giving A a FSA
o Rule of Law, would still apply even in the face of contrary grantory intent
• Today, doctrine is virtually abolished.
o A has a life estate and A’s as yet unknown heirs have CR
o O has a reversion, since A could die w/o heirs

 The Doctrine of Worthier Title (also rule against remainder in grantor’s heirs:
• A remainder in the grantor’s heirs is invalid and becomes a reversion in the grantor.
o “If O grants Blackacre “to A for life, then to the heirs of O,” A has a life estate and O has a reversion.
o Applies ONLY to inter vivos transfers (not wills) and only if the word “heirs” is used.
• This doctrine is a rule of construction, not of law. So grantors intent is binding.
• Rule does not apply if the intent to create a remainder in heirs has been clearly manifested.

Future interests are void if there is any possibility, hwr remote, that the given interest may vest more than 21 years after the death of a measuring life.

o 1. Determine which future interests have been created. RAP applies only to CR, EI, and certain vested remainders subj to open. RAP does NOT indefeasibly vested remainders, future interests in O, vested remainder subj to complete defeasance
 E.g. To A for life, then to A’s children
o What has to happen for the future interest holder to take?
 A has to die and A has to have children
o 3. Find a measuring life that is alive at the date of conveyance and ask whether that person’s life or dead is relevant to the condition’s occurance.
o 4. Will we know, w certainy, w/in 21 years of the death of our measuring life, if our future interest holder can or cannot take. If so conveyance is good.

Assumes that everyone is fertile no matter their age.

o 1. A gift to an open class that is conditioned on members surviving to an age beyond 21 violates the CL RAP.
 “Bad as to one, bad as to all.” Entire gift will be invalid.
o 2. Many shifting EI violates rap. An EI w no limit on the time within which it must vest violates RAP.
o ** IF after striking out the EI causes a clause that no longer makes grammatical sense, then the whole clause is stricken.

o To create it you need T-TIP, the four unities
 At the same TIME
 By the same TITLE (same instrument)
 IDENTICAL interests (same shares of property)
 Rights to POSSESS the whole
 * Grantor must clearly express the right of survivorship.
• ROS is disfavored bc keeps out probate
• Use of a straw – “middle man”
o 1. convey blackacre to straw man
o 2. straw conveys back to D and P as joint tenants w ROS

1) Possession: ea co-tenant is entitled to possess and enjoy the whole
a. If one co tentant wrongfully excludes another he has committed wrongful ouster.
2) Rent and Profits
a. Rent from a co-tenant – co tenants are not liable for rent absent ouster
b. Rent from third party – A co-tenant out of or in possession as the right to share rents from third pty in the share of ownership.
c. Profits:
i. In most jurisdictions (but not all) a co-tenant in possession has the right to retain profits gained by her use of the property. A co-tenant in possession need no share such profits w co-tenants out of possession, nor reimburse them for the rental value of her use of land, unless there’s a K to the contrary
1. Exception: when rents from third parties and profits derive from a use of the land that reduces its value (e.g. mining)
3) Adverse Possession is not allowed unless he ousted the others. Why not? No hostility bc there was no ouster.
a. Do the analysis anyway; esp when there was a conveyance by a co-tenant or a joint tenant that the others tenants do not know about
b. Also do this analysis if the SOL for a recovery of land action has ran. Co-tenants may not be able to evict the user/co-tenant from the property
4) Carrying costs – ea is responsible for his/her fair share of carrying costs – taxes and mortgage interest payments based on his or her undivided share.
5) Repairs: repairing cotenant has right to contribution for reasonable and necessary repairs provided that she has told the other of their need. Tenants share based on their ownership.
6) Improvements: One cotentants improvement could be another tenant’s nightmare so no right to contribution so called improvements, hwr at partition would get a credit due to any increase in value OR bears full liability of any decrease in value due to her effort.
7) Waste – a co-tenant must not commit waste. Co tenant can bring an action for waste during the co-tenancy; don’t have to wait until partician
8) Partition – see pg 30

"to A for life, then to his widow for life, then to A's issue." - violates RAP.

"to A for life, then to his widow for life, then to A's children."
doesn't violate RAP bc class is recognizable at B's death??

To B for his life, then to his widow, if any, for life, then to B's children then living. - violates RAP

Rights and Duties of Co-tenants
1. Tenancy for Years (also known as the Estate for Years or the Term of Years)”
2. Periodic Tenancy
3. Tenancy at Will:
4. Tenancy at Sufference

a. This lease is for a fixed period of time, can be as short as a day. When you know the termination date from the start, you have this tenancy.
b. No notice is needed to terminate.
c. When u know the termination date from the start you have
i. L leases Blackacre to T “from 1/1/07 – 1/7/07”
1. Term of Years bc we know the termination date.
d. A term of years is greater than one year must be in writing, bc of SOF

a. This lease continues for: successive intervals
b. Continues until LL or T give proper notice of termination
c. Can be created expressly.
d. Can also rise by implication in one of three ways: (another slide)

e. How do you terminate? Notice!! typically in writing must be given
f. How much notice? At CL, at least = to the period length itself, unless otherwise agreed.
i. Thus, if m-t-m  one month notice
ii. If wk-t-wk  one week notice
iii. One exception: if greater than year-to-year or greater, only 6 months notice
iv. FREEDOM OF K – in CL, both parties can change all of these default rule
g. ***Note: The periodic tenancy must end at the conclusion of a natural lease period.

i. Land is leased w no mention of duration, but provision is made for payment of rent at set intervals

ii. Oral term of years in violation of SOF creates: an implied periodic tenancy measured by the way rent is tendered

iii. The holdover: In a residential lease, if L elects to holdover T who wrongfully stayed on past the conclusion of the original lease: implied periodic tenancy arises measured by the way rent is now tendered

3. Tenancy at Will:
a. Tenancy for not fixed duration - “To T as long as L or T desires.”
b. Unless the ptys expressly agree to a tenancy at will, payment of regular rent will cause a court: to treat the tenancy as an implied periodic tenancy; thus, this type of tenancy is rare
c. Tenancy at will may be terminated: by any party at any time. Usu a reasonable demand to vacate is usu req’d.

4. Tenancy at Sufference
a. It is created when: tenant has wrongfully held over past the expiration of the lease. We give this wrongdoer a leasehold estate (the tenancy at sufferance), to permit L to: recover rent
b. T at sufferance lasts only until L either evicts tenant or hold tenant to a new tenancy.

1. T’s liability to 3rd ptys: T is responsible for keeping the premises: (matter of tort law) in reasonably good repair.
a. T is liable for injuries sustained by: third parties T invited, even where L expressly promised to make repairs.
i. 43: L leases blg to T, promising to maintain the premises in good repair. T’s invitee trips over a loose floorboard and sues T. Result? T loses.
1. It dos not matter that T may seek indemnification from L. Vis-à-vis the ∏, who is a guest, T loses)

a. T’s duty to repair when the lease is silent: T must maintain (maintainace) the premises and make ordinary repairs. Envokes the related doctrine of waste. 3 types of waste; discussed in a diff't card.

b. T’s duty to repair when T has expressly covenanted in the lease to maintain the property in good condition for the duration of the lease:
i. At CL, historically, T was liable for any loss to the property including loss due to fore of nature. E.g. hurricane, lightening, rains flooding
ii. Today: T may end the lease when premises are destroyed when it’s not T’s fault.

ii. Law of fixtures: A fixtures is a once movable chattel that, by virtue of its annexation to realty: objectively shows (don’t care what tenant was thinking subjectively) intent to permanently improve the realty
1. Common e.g.s built-in heading system, customized storm windows, furnice, certain lighting
2. == When T removes a fixture: he commits voluntary waste.
iii. T MUST NOT REMOVE A FIXTURE, NO MATTER THAT HE INSTALLED IT

1. Express K controls
2. absent a K, T may remove a chattel that she has installed so long as: removal doesn’t cause substantial harm to the premises
3. if removal will cause substantial damage, then in objective judgment T has shown: the intent to install a fixture. = Fixture stays.

a. T breaches this duty and is in possession of the premises:
i. LL may: evict properly through the courts or continue the relationship and sue for the rent
b. T breaches this duty but is out of possession:
i. SIR:
ii. Surrender: L could choose to treat T’s abandonment as: an implicit offer of surrender, which LL accepts
1. what is surrender? T shows by words or actions she wants to give up the lease.
iii. If unexpired term is > 1yr: surrender must be in writing to meet the SOF; LL will send signed writing to T’s last known address saying that LL accepts T’s moving out as a surrender
iv. Ignore abandonment and hold T responsible for unpaid rent Just as if T was still there. This option is avail only in a minority of states.
v. Re-let the premises on the wrongdoer tenant’s behalf, and hold him or her: liable for the difference
vi. Majority Rule: LL must at least: try, doesn’t need to be successful
1. this is a way for LL to recoup losses

a. Majority/English rule req’s that L put T in actual possession of the premises. Thus if at the start of T’s lease there’s a prior holdover T is still in possession, L has breached and the new T gets damages.
b. American Rule/Minority – does not req’ that LL put T in physical possession; LL only needs to provide legal possession.

2. Implied Covenant of quiet enjoyment that neither the LL nor someone else w paramount title (morgagee for e.g. who is foreclosing) will interfere w T's quiet enjoyment and possession of the premises. May be breached in 1 of three ways: actual eviction, partial actual, or constructive condition
a. Applies to both: residential and commerical
b. Breach by actual wrongful eviction: This occurs when LL wrongfully evicts T or excluded a T from the premises; overt actual breach of this covenant.
c. Also breaches this if constructive eviction.

T's remedy: Partial eviction by LL - entire rent even though the T remains in possession

Partial eviction by 3rd pty - T is liable for reasonable rental value of the portion he continues to possess.

Actual eviction - terminates T's obligation to pay rent

Const evic - another card

If LL does an act or fails to provide some service that he has a legal duty to provide, making the property uninhabital, the T may terminate the lease and make seek damages.

T must meet the following conditions:
i. Substantial Interference substantial problem due to L’s actions or L’s failure to act; a chronic problems suffices.
1. E.g. every time it rains is suff’t
ii. Notice: T must tell L of the problem and L must fail to act meaningful.
iii. Goodbye: T must leave w/in reasonable time after L fails to fix the problem.

e. Is LL liable for annoying acts of other tenants?
i. GR: NO
ii. Exceptions:
1. L must not permit a nuisance on site
2. L must control common areas

a. Applies only to residential leases
b. Non-waivable
c. The standard: Premises must be fit for basic human habitation. Bare living req’ts must be met, not niceties.
d. Appropriate standard may be supplied by local housing code or court conclusions
e. The sorts of problems that trigger this incl: no heat in winter, no plumbing, no running water,
f. T’s entitlements when this is breached: MR^3
i. M: move out and terminate lease
ii. R: repair and deduct. T make reasonable repairs and deduct from future rent
iii. R: reduce rent or w/hold all rent until court determines fair rental value. T must place w/held rent in escrow account to show good faith.
iv. R: remain in possession and pay rent and affirmative seek money damages. Don’t have to move out. Remedial options more generous

• Absent some prohibition in the lease, T may freely transfer his interest in whole or in part. In whole – assignment; in part - sublease
o L can prohibit T from assigning or subletting w/o L’s prior written consent. Consenting once, L waives the right to object to future transfers by that T.

1. o The assignee, stands in the shoes of the original tenant in a direct relationship w/ the LL. Thus, there is privity of estate btwn LL and an assignee and each is liable to the other on all lease covenants that run with the land.
 A cov runs w the land if the original parties to the lease so intend, and if the cov “touches and concerns” the leased land. To touch and concern the land, the agreement must burden one party while benefiting another, respecting their interests in peroperty
• Cov re: the duration of the lease always run w the land.
• Covenant to pay rent always runs w the land
• Covenant lease provisions will be strictly construed as written.

2. Reassignment by assignee destroys privity of estate w the LL Hwr, if assignee made a promise to the tenant to pay remainder of lease, LL may sue as third pty beneficiary of the K
if assignee promises the LL to pay rent, he may be obligated to do so based on "privity of K", i.e. the assignee is "assuming" the lease.

Subleasee is not personally liable to the LL for rent or the performance of the other covenants made by the origional leasee in the main lease.

No privity of K or estate

Subleasee can enfoce covenants made in the sublease but not in the original lease w the LL

LL’s Tort Liability
1. CL: In TORT, L was under no duty to make the premises safe. Let the tenant beware.
a. The norm:
b. Exceptions to common law: CLAPS:
i. Common areas
ii. Latent defects rule: LL must WARN T of hidden defects that LL knows or should know about. Duty to Warn; not a duty to repair
iii. Assumption of repairs: LL who voluntarily makes repairs must complete them w reasonable care; thus liable for negligent repairs
iv. Public use rule: L who leases pub space, s.a. museum or convention hall, and who should know, bc nature of the defect and due to the length of the lease that T will not repair is liable for any defects on the premises.
1. Bc of length, T is in no good position to make the repair, LL will be liable.
v. Short term lease of furnished dwelling: L is responsible for any defects that hurt T.

Depends upon he objective intention of the pty who made the "annexation.: This intention is determined by
1. nature of the article (how essential the item is to normal use of the premsies)
2. manner in which it is attached (more substantially attached, more likley it was intended to be permanenet)
3. amt of damage caused by its removal
4. adaption of the item to the use of realty (e.g. custom window treatments, wall-to-wall carpet)

An easement is a nonpossessory interest in land that gives the holder the right to use another lands for some type of specific enjoyment.

• 1. Types of Easement?: Easements can be affirmative or negative

• 2. Appurtenant or in gross?

• 3) Was the easement created properly? (PING)

• 4) Does the easement survive subsequent sales? (transferability):

• 5) Is the dominant tenement w/in the proper scope of the easement?

• 6) Was the easement terminated?

Affirmative Easements
 Most are affirmative: right to do something on someone else’s land which is the servient land – may enter upon the servient tenement and make an affirmative use of it. Eg. Right-of-way

affirmative and negative

o Neg easements: entitle the holder to prevent the servient holder from doing something that would otherwise be permissible, anotherwords a restrictive covenant
 Remember LASS:
• Light
• Usu in more congested lands
• Air
• Support
• Stream water from artificial flow
• In a min of estates – neg easement for scenic view, incl CA. entitles easement owner to prevent the servient land owner to refrain from building in a way that would deprive my parcel from light, air, and view.

NEGATIVE EASEMENTS CAN ONLY BE CREATED EXPRESSLY, BY WRITING SIGNED BY THE GRANTOR. THERE IS NO NATURAL OR AUTOMATIC RIGHT TO NEGATIVE EASEMENTS.

• Easement Appurtenant: easement is deemed appurtenant when the right of special use benefits the holder of the easement in his physical use or enjoyment of another ract of land.
o it takes two – two tracts must be involve
o 1. Dominate tenement that gets the benefit
o 2. Servient tenement which bears the burden

o Easement in gross confers upon its holder only some personal or money advantage that is not related to his use or enjoyment.
 Only takes 1 to make an easement in gross; there is no benefited or dominate tenement bc only 1 parcel is involved, which is the servient land.
 Servient land is burdened. Hwr, no benefited dominant tenement
 E.g.s right to place a billboards land, right to fish or swim in another’s pond, right to lay power lines on another’s land

• Easement in gross will NOT transfer UNLESS for commercial purposes

-prescription
-implication
-necessity
-grant

express grant - An easement to endure for more than one year must be in a writing that complies w the formal elements of a deed.
 This is bc is must follow SOF.
• “Deed of easement” - The written evidence of the easement
• Must conform w all the formal requisites of a deed.

 Created by operation of law, eg51 – must meet the following 2 things
• 1. an intended easement based on a use that existed when the dominate and servient estates were severed
• Implied if, prior to the time the tract is divided, a use exists on the “servient part” that is reasonably nec for the enjoyment of the “dominant part” and a court determines that the parties intended he use to continue after division of the property.
 Whether a use is reasonably nec to the enjoyment of dominant tenement depends on many factors, like cost and difficulty of he alternaives and whether the price paid reflects the expected continued use of the servient portion

 The landlock setting. An easement of right of way will be implied by nec if grantor conveys a portion of his land w no way out except over part of grantor’s remaining land. Access to pub road and utilities

COAH
1. continuous use - does not mean to constant use. a cont claim of right w periodic acts that put the owner on notice of the claimed easement fulfills the req't, for statutory period.

2. Open and notorious - must not conceal use.

3. hostile- Adverse -- use must be w/o owners permission but use need not be exclusive as does AP.

looks at the reasonable intent of the original parties - would the ptys reasonably have provided had they contemplated the situation and what would that result be?

scope that would reasonably satisfy the purpose of the grant

but where a use would substaintally greater burden the servient tenement, the use will not be w/in scope

court will assume that the easement is intended by the ptys to meet both present and future reasonable needs but cannot be a change in the nature of the use.

owner of servient tenement may select location as long as selection is reasonable. incl easements by necessity.

END CRAMP
o Estoppel: servient owner materially changes his position in reasonable reliance on the easement holder’s assurances that the easement will not be used.
 Dominant estate will be estopped from enforcing easement
o Necessity: Expires as soon as the need ends unless in writing. If in writing will not go away after the need abates
o Destruction of the servient land, other than through the willful conduct of the servient owner will own the easement
o Condemnation by ennemt domain will end easement
o Realease – written release given by the easement owner given to the servient holder
o Abandonment: must demonstrate physical action their intent to never use easement again.
 Mere non use or words will never be good enough
o Merger Doctrine: when title to the easement and title of the servient land is now the same person
 If complete unity is ach’v easement is extinguished even though there may be later separation of title, easement is not automatically revived.
o Prescription/Adverse possession: Servient may extinguish he easemenet by interference w and in accordance w adverse possession
 Remember COAH.

The License
1. Defined: mere privilege, not an interest in the land, to enter another’s land for some delineated purpose.
2. Licenses are not subj to the SOF; thus, you do not need a writing to create a license
3. They are informal devises
4. Freely revocable at the will of the licensor, unless bc of estoppel
5. 2 Classic license case:
a. 1. Tickets create freely revocable licenses. As a contract matter, have contract damages.
b. 2. Neighbors talking by the fence:
i. E.g. 58: Neighbor A, talking by the fence w neighbor B, says “B, you can have the right of way across my land.” This oral easement is unenforceable – violates the SOF.
ii. Creates instead a freely revocable license.
6. Estoppel will apply to bar revocation only when the licensee has invested substantial money or labor or both in reasonable reliance on the license’s continuation.
7. not assignable

The Profit
1. Allows holder to enter the servient land and take from it something from the land.
a. E.g soil, oil, trees
2. The profit shares all the rules of easements

1. normally found in deeds, is a WRITTEN PROMISE to do something on the land (e.g. maintain a fence) or promise NOT to do something on land (eg conduct commercial business)
2. Real covenants run w the land at law, which means subsequent owners may enforce or be burdened by a covenant.

ii. Does the burden of A’s promise to B run from A to A-1?
1. harder for burdens to run than benefits
2. Remember WITHN:
a. Writing – original promise btwn A and B was in writing
b. Intent: original parties intended that the covenant would run
i. Courts tend to be generous when finding intent
c. Touch and concern land: promise must be of and concern the land; has to affect the parties in their capacity as land owners and not as general citizens.
i. Note: Covenants to pay money to be used in connection w the land (such as HOAs) and covenants not to compete  touch and run w the land.
d. Horizontal and Verticle privity
i. Horz refers to the nexus between original parties: Sussession of estate – req’s that they were in a relationship of:
1. grantor/grantee relationship or
2. LL/T relationship or
3. M’or/Mortg’ee
ii. is hard to establish – usu why most will not run
iii. Vertical privity refers to the nexus between A and A1. it simply req’s some nonhostile nexus s.a. K, devise, descent
1. Only time its absent if A1 acquired her interest through adverse possession
e. Notice – A1 had notice of the promise when she took
iii. Second, does the benefit of A’s promise to B run from B to B-1? E.g. does B1 have standing to make this case?
1. Remember WITV: writing, intent, touch and concern, Vertical privity
a. Note: Horizontal privity is not req’d.

a. Path of analysis is diff’t
b. On the basis of the remedy ∏ seeks.
i. If ∏ wants money damages  construe as a covenant
ii. If ∏ wants injunction  construe as an equitable servitude.
c. When they wanted it to be a covenant, in a covenant parlance, one tract is burdened by the promise and another is benefited

if Pla wants an injunction or specific performance, he must show that the convenant qualifies as an equitable servitude. which is a covenant that, regardless of whethr it runs w the land, equity will enforce against the assignees of the burdened land who have NOTICE of the covenant.

2. An ES must satisfy the SOF and be in writing
3. Requirements for Burden to Run
a. Covenanting parties must have intended that the servitude be enforced, there must be actual or constructive notice, the interest must touch and concern the land.



To create and ES: WITNES:
a. Writing – usually
b. Intended – promise would bind successors
c. Touch and Concern – promise affects the parties as land owners
d. Notice – successors of the burdened land had notice of the promise.
e. NOTE: PRIVITY IS NOT REQ’D TO BIND SUCCESSORS

Recipical negative servitude = implied equitable servitude.

A reciprocal negative servitude will be implied if, at the time that the parcels were sold, the developer had a common scheme or plan that all parcels in the subdivision would be developed within the terms of the negative covenant. This is typically used when the covenant does not appear in the deed.
i. When the sales began, the subdivider (A): had a general scheme of residential development, which included B’s lot
ii. The Defendant lotholder (B): had notice of the promise contained in the prior deeds
1. Three types of Notice: AIR:
2. Actual notice, literal knowledge
3. Inquiry Notice, meaning neighborhood conforms to the common restriction = the lay of the land tells u of the ES
4. Record notice, meaning the form of notice sometimes imputed to buyers on the basis of the public documents
a. Note: W respect to Record notice, SPLIT: Some take the view that a subsequent buyer is on record notice of the cotents of prior deeds transferred by the common grantor, subdivider A.
b. Subsequent buyer does NOT have record notice of the contents of those prior deeds transferred to others by the common grantor
i. Better view bc less burdensome to Def’s title searcher.

1. Possession for a statutorily prescribed period of time, if certain elements are met, gain ownership
2. Elements of AP COAH:
a. Continuous – uninterrupted for give statutory period
b. Open and notorious – kind he usu owner would make under the circumstances
c. Actual – must be literal; cannot be constructive
d. Hostile – doesn’t have true owner’s consent to be there
e. POSSESSOR’S SUBJECTIVE STATE OF MIND IS IRRELEVANT
3. Tacking:
a. One AP may tack on to his time w the land his predecessor’s time, so long as there is PRIVITY which is satisfied by any non-hostile nexus such as blood, contract, deed, will,
b. Tacking is NOT allowed when there has been an ouster.
i. E.g. 61: O owned BA in 1980 when A entered adversely. A was on her way to satisfying the elements of AP when in 86 P ousted her. P stays on the land thru 2000. Our jurisdiction has a 20-yrs statute of limitations. In 2000, who owns BA?
1. Not P bc he ousted A; cannot tack on her time.
4. Disabilities:
a. The SOL will not run against the true owner who is afflicted by disability at the start of the AP time.
i. Insanity, infancy, imprisonment

a. Changed conditions:
i. Changed conditions allege by the pty seeking release from the terms of an ES must be so pervasive that’s the ENTIRE area
1. mere pockets of limited change is not good enough; need a fundamental change
2. e.g. zoning
b. uncleaned hands – will not allow a person seeking enforcement that is violating a similar restriction on his own land.
c. Termination

In the case of a will, the perpetuities period begins to run on the date of the testator’s death, and measuring lives used to show the validity of an interest must be in existence at that time. An interest that violates the Rule is void and is stricken. However, all other interests created in the instrument of transfer that are valid under the Rule are given effect

right of first refusal violates the Rule Against Perpetuities

The common law rule that priority is given to the grantee who was first in time still applies unless operation of the jurisdiction’s recording statute changes the result.

o The appurtenant easement passes automatically w the dominant tenement, regardless of whether it is even mentioned in the conveyance.
o Run w the servient tenement?
 Recording Acts
• Whether the easement was recorded may or may not affect its existence.
• A pure race jurisdiction, whoever records first wins, and actual notice is irrelevant. (Look for a party recording before pty w the easement; if so – subsequent buyer takes property free of the easement)
• In a notice or race-notice, a subsequent BFP is protected if she records before the prior grantee and has no actual, constructive, or inquiry notice of the prior grantee’s interest.
• Look for actual notice
• Look for inquiry notice – would a reasonable inspection of the property revealed the existence of the easement?
• Look for constructive notice
• == If no BFP w/o notice, easement may still continue.
o Easement in gross will NOT transfer UNLESS for commercial purposes

Means that the rightful owner of blackacre can no long bring an action for his property interest against the offending party.

i.e. an adverse possessor occupying land past the SOL or a trespasser's liability