How to Ace FYLSE/Real Property Outline

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Adverse Possession[edit]

OCEAN SHIP
  • The title gained through adverse possesion is not marketable unless quiet title action was brought.

Actual[edit]

Open and Notorious[edit]

In 1978, Chris and Andy learned that Beth had conveyed her interest in Blackacre to Frank. When Mona approached Chris a day later to discuss her interest in Blackacre, Chris told her that he was the sole owner of Blackacre and she had no interest in Blackacre. Chris posted “No Trespassing” signs on Blackacre. He also paid all of the expenses, insurance, and taxes on Blackacre. Andy and Mona have never taken any action against Chris’ possession of Blackacre.
—J11Q5

Here, Chris's possession of Blackacre was open and notorious- he lives there and posted no trespassing sign and paid all the expenses, insurance and taxes and told Mona that Blackacre was his.

Continuous[edit]

Season Use[edit]

The seasonal use of a property such as vacation home or hunting cabins may still satisfy the continuous possession element if this is the way a typical owner of similar property would use the land.

Cain and his family occupied the parcel during the summers of 1988 through 1996. In May 1997, Cain conveyed the parcel to Sam. Sam's family occupied it during the summers of 1997 through 1999.
—J00Q2

Tacking[edit]

One adverse possessor may tack his time with the time of another adverse possessor to meet the required statutory period for adverse possessors if the two are in privity.
(Allen the Adverse Possessor possessed Blackacre for a period.)Allen left Blackacre to attend graduate school in another state. However, before leaving he leased Blackacre in writing to Shepard for three years. Shepard also raised sheep on Blackacre. At the end of Shepard's lease in 1992, Allen returned to Blackacre and has lived there ever since.
—F88Q2

Here, Allen could tack the time he leased to Shepard for three years to complete the statutory period since Allen and Shepard were in privity.

Exclusively[edit]

In 1978, Chris and Andy learned that Beth had conveyed her interest in Blackacre to Frank. When Mona approached Chris a day later to discuss her interest in Blackacre, Chris told her that he was the sole owner of Blackacre and she had no interest in Blackacre. Chris posted “No Trespassing” signs on Blackacre. He also paid all of the expenses, insurance, and taxes on Blackacre. Andy and Mona have never taken any action against Chris’ possession of Blackacre.
—J11Q5

Here, Chris's possession of Blackacre was exclusive and he claimed that the sole owner of Blackacre.

Hostile[edit]

In California, there is an additional requirement that the adverse possessor pay the property tax on the land in question.

Owen took title to Blackacre in 1965 and that record title has remained in his name ever since. Allen attempted to testify that while he and Owen were camping on Blackacre in 1985, Owen said, "I'm giving you this 100 acres as a college graduation present. From now on it's yours." ***

Allen was able to establish that he stayed on Blackacre after the camping trip, cleared some of it, built a cabin and barn, did some fencing, and paid the taxes. He raised sheep which grazed over the entire 100 acres. In 1989, Allen left Blackacre to attend graduate school in another state. However, before leaving he leased Blackacre in writing to Shepard for three years. Shepard also raised sheep on Blackacre. At the end of Shepard's lease in 1992, Allen returned to Blackacre and has lived there ever since.
In 1991, Owen hired surveyors to lay out a recreational subdivision on Blackacre. They were on the land about three weeks taking measurements and placing markers, but nothing further was done after they left.

—F88Q2

Here, Allen took the possession of Blackacre under the defective oral conveyance which violated the Statute of Frauds' writing requirement. This is hostile because he treated the land as his own.

Consent[edit]

Orin owned Blackacre, a heavily wooded 160-acre parcel of vacant land in State X. Arthur was an out doorsman and friend of Orin, who, with Orin's permission, frequently hiked and camped on Blackacre. Orin decided to give Blackacre to Arthur and had a real estate salesman prepare a deed stating that Blackacre is conveyed to Arthur "from and after Orin's death." Orin signed the deed, showed it to Arthur, and then placed the deed in the metal security box which he locked and handed to Arthur. Orin kept one of two identical keys which he told Arthur were keys to the box. He told Arthur to open the box and record the deed after he, Orin, died. He explained that he did not want the deed recorded while he was alive because certainof his relatives might be disappointed and he did not want to suffer their harassment. He told Arthur to treat Blackacre as his own and to use it as he wished.

Arthur took Orin at his word and erected a vacation cottage in the middle of Blackacre. He and his family occupied the cottage on their frequent visits to Blackacre.
Orin died 12 years after the deed transaction without interfering with Arthur's use of Blackacre, except that three years before his death Orin cut and sold all the timber from ten acres on one corner of Blackacre. Arthur was angered by this act but did not protest.

—F91Q4

Here, Arthur's claim lack hostility requirement since Orin, the owner of Blackacre gave permission to use the land and came to Blackacre three years before his death to cut and sell all the timber from Blackacre. Arthur knew but did not protest and therefore Arthur fails to meet the hostile possession requirement under adverse possession.

George executed a deed in May 1988, purporting to convey a fee simple absolute in the parcel to Cain. Cain and his family occupied the parcel during the summers of 1988 through 1996. In May 1997, Cain conveyed the parcel to Sam. Sam's family occupied it during the summers of 1997 through 1999.
—J00Q2

Here, there is no hostility because Sam possessed the parcel with the permission of Cain.

Ouster of Co-Tenant[edit]

Ouster of a co-tenant is required to find a hostile possession with concurrent property owners since all co-tenants have equal right to possession of the property. Ouster occurs when a co-tenant claims an exclusive right to possession and refuses occupancy to his co-tenant.
"Art, Bob, and Carol as joint tenants with common law right of survivorship." Art, who had lived with his father on Blackacre, continued to occupy and farm it after Fred's death. Bob and Carol, although claiming equal rights to Blackacre, preferred to continue living in the cities in which they owned their homes and never went into possession of Blackacre. Art lost money in his farming operations in each of the years 1980 to 1985. At the end of 1985, without consulting either Bob or Carol, Art conveyed by quitclaim deed all of his "right, title and interest in Blackacre to Dan and his heirs." Dan immediately took possession of Blackacre.
—J96Q5

Here, Dan's claim lacks hostility requirement since there was no ouster of Bob and Carol who were the joint tenants of Blackacre and had equal right to possession of the property.

In 1978, Chris and Andy learned that Beth had conveyed her interest in Blackacre to Frank. When Mona approached Chris a day later to discuss her interest in Blackacre, Chris told her that he was the sole owner of Blackacre and she had no interest in Blackacre. Chris posted “No Trespassing” signs on Blackacre. He also paid all of the expenses, insurance, and taxes on Blackacre. Andy and Mona have never taken any action against Chris’ possession of Blackacre.
—J11Q5

Boundary Disputes[edit]

Where one property owner occupies land (.e. building built over property line), mistakenly thinking it is his own but it actually belongs to the adjacent property owner, this possession will be deemed hostile.
Debbie purchased an ocean front vacation house located on Lot #1. Shortly thereafter Peter purchased the ocean front house located on adjoining Lot #2. The houses and lots are comparable in size, value and age. After his purchase, Peter hired a surveyor to lay out the boundaries of Lot #2. The surveyor reported that a portion of the porch of Debbie’s house is on Peter’s property. In particular, her 10-foot wide porch extends laterally 7 feet onto Peter’s property. The encroachment was made by the original developer 25 years before Debbie and Peter purchased their properties. Six months after learning of the encroachment, Peter commenced an action to compel Debbie to remove the porch from his property.
—F97Q3

Statutory Period[edit]

Easement[edit]

Easements requires a non-possessory interest in land that gives the holder the right to use another's land. An affirmative easement requires the right to go onto and do something on servant land. Easement in gross requires an easement that is not related to the dominant estate and benefits holders with the right to use the servant tenement. The creation an affirmative easement requires writing. However, the oral license created an easement by estoppel with detrimental reliance.
Al owns Blackacre, a country property with extensive highway frontage. Blackacre adjoins property on which the Restview Inn is located. In 1992, after prolonged discussion, Al said to his son-in-law, Bret, “I grant you the right to construct and maintain 10 billboards on Blackacre to advertise your business." No consideration was agreed to or paid. The statement was overheard by Carl, an attorney and mutual friend. Al and Bret previously had asked Carl what words they should use to put their intentions into effect.
—81Q3

Here, there is no writing to satisfy this requirement as Al orally granted to Bret the right to construct and maintain 10 billboards on Blackacre which Al owned so that Bret could advertise his business. So there was no easement created. However, an easement by estoppel may be created since Bret built the billboard.

Scope of easement[edit]

it is intended to meet both present and future needs of the dominant parcel due to normal, foreseeable development.

In 1950, Al properly executed and delivered a quitclaim deed granting his neighbor, Betty, an "easement of way, thirty feet wide" along the southern boundary of Al's five-acre residential parcel.F94Q3

Here, an express easement created by Al to Betty by executing and delivering a quitclaim deed for an easement of way third feet wide along the southern boundary of Al's parcel.

License[edit]

License requires a privilege, revocable at the will of the licensor, to enter land for a delineated purpose. Licenses are 1) not subject to the statute of frauds and 2) revocable unless estoppel or coupled with an interest. A license may be freely revoked at the will of the licensor. An oral agreements produce a license and no an easement.

Al owns Blackacre, a country property with extensive highway frontage. Blackacre adjoins property on which the Restview Inn is located. In 1992, after prolonged discussion, Al said to his son-in-law, Bret, “I grant you the right to construct and maintain 10 billboards on Blackacre to advertise your business." No consideration was agreed to or paid. The statement was overheard by Carl, an attorney and mutual friend. Al and Bret previously had asked Carl what words they should use to put their intentions into effect.
—81Q3

Here, Al probably created a license to Bret by orally permitting Bret to use Blackacre.

Lease[edit]

Tenancy for Years[edit]

Tenancy for years requires an estate for a fixed time that automatically terminates by the terms of the lease, leaving a reversion for the landlord.
Andrew and Barry owned adjacent lots, each fronting on a busy public road. The conveyances by which each acquired his lot were duly recorded. On several occasions they discussed forming a partnership to construct a building on their properties in which to operate a restaurant. However, they never reached any agreement to proceed.

In January, 1981, Andrew sent a letter to Barry stating that he had decided to proceed by himself to construct a building and operate a restaurant on his lot. Andrew offered in the letter to pay Barry $250 per month for the use of Barry's lot "for customer parking for five years, should the restaurant be successful for that period."

Upon receipt, Barry glanced at the letter and assumed that it referred to a partnership agreement. He wrote on the letter "OK with me," signed his initials, and mailed the letter back to Andrew.

—82Q8

Here, Andrew offered to pay Barry $250 per month for use of Barry's lot for customer parking for five years. This was tenancy for years which was accepted by Barry in writing.

Lisa owns a five-story commercial building. On January 1, 2005, she leased the top floor to Tom for a five year term at a rent of $500 a month. The lease was in writing and signed by both parties.
—84Q5

Here, this is a tenancy for years because it continues for a fixed period of time.

Assignment and Sublease[edit]

Unless a lease specifically prohibits assignments and subleases, the tenant is free to assign and sublease in whole or in part. When the lease does contain a restriction, the restriction is strictly construed, such that a restriction on assignments does not include a restriction on subleases, and a restriction on subleases does not include a restriction on assignments. Further, the landlord can waive the restriction by accepting rent from the assignee or subleasee.
If the lessee transfers the entire estate for the remainder of the term, she has made an assignment. Any transfer of a lesser estate is a sublease. If the landlord assigned the lease, the assignee is liable to the tenant on all covenants that run with the land. The original landlord remains liable on all covenants in the lease.
(Andrew the tenant leased the lot from Barry the landlord for customer parking) Andrew constructed a large restaurant on his lot at considerable expense, leveled, installed drainage in, and paved Barry's lot for use for restaurant parking. The restaurant opened in October, and cars filled the front of Barry's lot on many evenings. One such car belonged to Charlie, who was a frequent customer at the restaurant. In early December Charlie purchased the lot and improvements from Barry and built a fence around the lot. He has since refused to allow Andrew to use the lot for restaurant parking. Thereafter, Charlie returned Andrew's payment checks uncashed.
—82Q8

Here, Barry was the landlord who assigned the lot to Charlie by selling the lot and improvements. Charlie is liable for the convenants made by Barry and one of them was to allowing the lot to be used for restaurant parking.

(Tom the tenant leased a space from Lisa the landlord) In June 1995, he sold his dance studio business to Alice, one of his instructors, and assigned the lease to her. The assignment did not contain any express assumption or assignment of contract rights clauses.
—84Q5

Here, Tom assigned his entire interest under the lease to Alice in June 2005, and thus it is an assignment. Tom, as the assignor, still has the duty to pay rent. Thus, if Lisa is unable to collect rent from Alice, who now has possession of the premises, she may seek rent from Tom. Tom may assert any defenses Alice has against Lisa.

The agreement includes the following relevant provisions. *** 3) the landlord's written permission is required before the tenant may sublease. ***Lisa nevertheless made a written "assignment of all interest" in Apt. #1 to Mary, and Mary notified Owner on April 29 that she would leave Apt. #2 May 31, and occupy Apt. #1.***Mary moved into Apt. #1 on June 1 and paid the June rent on Apt. #1.
—J93Q5

Here, the facts indicate that Lisa gave Mary "an assignment of all interests,” and therefore, it was an assignment, not a sublease and the assignment is valid. Furthermore, the landlord accepted the June rent from Mary, and therefore, could be considered to have waived the rent to protest to the sublease, if it was a sublease.

License[edit]

A license coupled with an interest is irrevocable and binding on third parties such as a purchaser from the licensor.

Conveyance by deed[edit]

Valid Deed[edit]

A deed is a document that serves to pass legal title from the grantor to the grantee when it is lawfully executed and properly delivered. The deed requirements are that (1) identification of parties, (2) signature of the grantor, (3) adequate description of the property but no consideration is required.

On her seventieth birthday, she had a pleasant reunion with her niece, Nan, and decided to give Blackacre to Nan. Olgar had a valid will leaving "to my three children in equal shares all the property I own at my death." She did not want her children to know of the gift to Nan while she was alive, nor did she want to change her will. Olga asked Bruce, a friend for help in the matter.

Bruce furnished Olga with a deed form that by its terms would effect a present conveyance. Olga completed the form, naming herself as grantor and Nan as grantee, designating Blackacre as the property conveyed, and including an accurate description of Blackacre. Olga signed the deed and Bruce, a notary, acknowledged her signature. Olga then handed the deed to Bruce, and told him," Hold this deed and record it if Nan survives me." Nan knew nothing of this transaction.

—F03Q2
Orin owned Blackacre, a heavily wooded 160-acre parcel of vacant land in State X. Arthur was an out doorsman and friend of Orin, who, with Orin's permission, frequently hiked and camped on Blackacre.Orin decided to give Blackacre to Arthur and had a real estate salesman prepare a deed stating that Blackacre is conveyed to Arthur "from and after Orin's death." Orin signed the deed, showed it to Arthur, and then placed the deed in the metal security box which he locked and handed to Arthur. Orin kept one of two identical keys which he told Arthur were keys to the box. He told Arthur to open the box and record the deed after he, Orin, died. He explained that he did not want the deed recorded while he was alive because certainof his relatives might be disappointed and he did not want to suffer their harassment. He told Arthur to treat Blackacre as his own and to use it as he wished.

Arthur took Orin at his word and erected a vacation cottage in the middle of Blackacre. He and his family occupied the cottage on their frequent visits to Blackacre.

Orin died 12 years after the deed transaction without interfering with Arthur's use of Blackacre, except that three years before his death Orin cut and sold all the timber from ten acres on one corner of Blackacre. Arthur was angered by this act but did not protest.

The year before Orin died, a creditor, Charles, obtained and recorded a judgment against Orin.

Immediately upon learning of Orin's death, Arthur attempted to open the box with his key but found that itdid not fit. He then forced the lock and extracted and recorded the deed.

—F91Q4

Here, the deed identified the parities as Blackacre was conveyed to Arthur from Orin, signed by Orin and provided an adequate description of the land by stating Blackacre. For delivery requirement, Orin exhibited a clear intent to transfer by giving the key to the security box in which the deed was stored. This was an effective delivery and was accepted by Arthur when he got the key.

Intent[edit]

Delivery[edit]

A deed must be properly delivered and accepted to have effect. There must be a physical transfer of the deed, words or conduct indicating the grantor’s intent to make a present transfer of the deed. Recording the deed or grantor giving the deed to the grantee create a strong presumption of present intent to transfer. Title passes immediately to the grantee upon delivery.

Acceptance[edit]

A grantee must accept the deed of conveyance. In general acceptance is presumed unless the grantee has specifically indicated intent not to accept the conveyance.

Breached of Express Covenant[edit]

If a tenant breaches a covenant in the lease, this is grounds for eviction. Under common law, a breach of an express covenant by the landlord gives rise to an action for damages, but does not release the tenant from his obligations under the lease to pay rent.

The agreement includes the following relevant provisions.***2) the tenant is not to disturb other tenants. ***Later than month, the police were called by neighboring tenants to Apt. #1 at 4:00 a.m. and asked to break up a very noisy party hosted by Mary.
—J93Q5

Here, Mary is bound by the covenant if it runs with the land, and the elements of touch and concern, intent, notice, and privity are established. Touch and concern is present as a covenant not to make noises burdens the estate. Both Mary and Lisa took with notice as the covenant is written in every lease (landlord uses a standard form agreement). Mary, therefore, would have notice of the covenant because it was recited in her lease and in Lisa’s, and when Mary took over Lisa’s interest in her apartment, the covenant was intended to pass to Mary. Finally, there is privity of contract and estate between Lisa and Mary. Moreover, as an assignee, there is no privity of contract and estate between Mary and Owner. There is a shared interest in the property, so Mary would be bound by the covenant. Moreover, Owner could not automatically evict Mary based on her breach of the covenant not to make noise. Owner would have to give notice to Mary to either ure the breach or quit the premises. If Mary gave any more noisy parties after Owner's notice, then he could bring suit to have Mary evicted. If Mary cured the problem, then grounds for eviction would disappear.

The lease was in writing and signed by both parties. It contained a restriction that the premises could be used only “as a dance studio and for no other purpose." It also provided "Landlord shall not lease space in the building to any competitor of Tenant." The lease did not contain any express warranties or disclaimers.84
—Q5

Here, Tom will argue that Lisa breached the express non-competition clause contained in the lease agreement. Lisa expressly agreed not to lease space to any "competitor" of tenant. Tom operated a dance studio, and would argue that an aerobics class is a similar type of activity, which conflicts and competes with dance lessons since both involve physical exercise. Lisa would counter that a dance studio is different from an aerobics exercise class. She would argue that aerobics classes would draw upon different clientele than a dance class and that the two business enterprises do not necessarily conflict or compete with one another. However, because the activities are substantially similar, Lisa would lose on this issue.

Constructive Eviction[edit]

Constructive eviction requires that the premises are virtually uninhabitable for their intended use because of a substantial interference with the property use and enjoyment. Applies to residential and commercial leases. Notice is given to the landlord by the tenant and the landlord fails to meaningfully respond; and this causes the tenant to actually move out within a reasonable time.
(Alice the tenant-assignee leased a space for a dance studio from Lisa the landlord) In January 1989, a dance student fell through a floor board. When the board was replaced, it was discovered that, although the building met building code requirements, the floor was not strong enough for a dance studio. In February, Lisa rented the basement to Charles, who used it for aerobic exercise classes.

Alice wrote to Lisa demanding that Lisa have the floor strengthened and cancel the lease with Charles. Alice claimed that Charles was in competition with her. Lisa refused both requests. On July 1, 1989, Alice mailed the top floor key back to Lisa and moved out of the building. She has paid no rent since moving. Lisa has made all reasonable attempts to mitigate the loss.

—84Q5

Here, a constructive eviction of Alice occurred because the floor was not strong enough for a dance studio which was the intended purpose of the commercial lease. Alice gave a notice to Lisa and Lisa refused to fix it and after a while, Alice moved out. This constitutes a valid constructive eviction.

Duty to Pay Rent[edit]

The tenant has the duty to pay rent in the amount agreed to unless there is a valid defense such as breach of express warranty, constructive eviction, implied covenant of quite enjoyment.

Mary moved into Apt. #1 on June 1 and paid the June rent on Apt. #1. Later than month, the police were called by neighboring tenants to Apt. #1 at 4:00 a.m. and asked to break up a very noisy party hosted by Mary. On July 1, Mary informed Owner that she had paid out an amount equal to the entire July rent to replace an exposed, uninsulated electric wire which she had discovered in a closet within Apt. # 1 , and that she would not pay the July rent.

On July 12, Owner brought an action to repossess Apt. #1, to collect July rent from both Mary and Lisa for Apt. #1. and to collect June and July rent from Mary for Apt. #2, which he had not endeavored to rerent because he had other unrented apartments.

—J93Q5

Here, Owner could only regain possession of Apartment #1 after he requested Mary to cure the breach. He must give Mary notice to pay the July rent (minus the offset for cost of repair) or quit the premises. If she refuses to cure the defect and does owe Owner some portion of the rent, then Owner can evict Mary and regain possession. If she owes no rent for the month of July, then Owner cannot evict Mary on grounds of failure to pay rent. If Mary did owe rent to Owner and she refused to pay, then Owner can seek payment from Lisa to pay the rent because she is still obligated on the lease agreement. Lisa is still both in privity of contract and estate with Owner. Therefore , Owner can seek payment for Apartment #1 from both Lisa and Mary.

Implied Covenant of Quiet Enjoyment[edit]

Implied covenant of quiet enjoyment is implied in every lease. The landlord warrants that he, or anyone acting for him will not interfere with tenant’s use and enjoyment of the premises.
Tom moved in immediately and began to operate a dance studio. In June 1995, he sold his dance studio business to Alice, one of his instructors, and assigned the lease to her. The assignment did not contain any express assumption or assignment of contract rights clauses. In January 1989, a dance student fell through a floor board. When the board was replaced, it was discovered that, although the building met building code requirements, the floor was not strong enough for a dance studio. In February, Lisa rented the basement to Charles, who used it for aerobic exercise classes. Alice wrote to Lisa demanding that Lisa have the floor strengthened and cancel the lease with Charles. Alice claimed that Charles was in competition with her. Lisa refused both requests. On July 1, 1989, Alice mailed the top floor key back to Lisa and moved out of the building. She has paid no rent since moving. Lisa has made all reasonable attempts to mitigate the loss.
—84Q5

Here, Tom will claim that Lisa breached the implied covenant of quiet enjoyment which is implied in every lease. The top floor was unsuitable for dance studio which was the intended purpose of the lease and Lisa refused to fix the floor. Though Lisa could argue that she replaced the board and the building meets the building code requirements, the leased premises fail to meet the intended purpose and therefore Lisa has breached the implied covenant of quiet enjoyment.

Subjacent and Lateral Support[edit]

A landowner has the right to have his land physically supported in its natural state.

Real Covenant[edit]

To bind successors there must be:

Writing of promise between original parties/owners[edit]

Intent (to bind future successors)[edit]

Touch and concern the land[edit]

(benefit dominant estate by increased use or enjoyment, restrict servant estate by decreased use or enjoyment)

Horizontal privity[edit]

(between originally promising parties)

Vertical privity[edit]

between grantor/grantee or LL/T (new party holds entire durational interest held by the one making the covenant)

Notice[edit]

  • Actual (subjective)
  • Record (properly in chain of title)
  • Inquiry (facts put on notice to look into further)

Question[edit]

Owen owned an unzoned 50-acre tract that was unimproved. He divided it into 45 one- acre lots with access roads. Owen offered the 45 lots for sale and told each prospective purchaser of the purely residential nature of the entire 50-acre tract. He sold 30 of the lots to 30 different purchasers and retained ownership of a block of 15 contiguous lots located on the easterly edge of the tract. The deed delivered to each purchaser contains the following language:

The grantee agrees for himself and his successors in title that the land hereby conveyed shall be used only for residential purposes and no structure other than a single-family residence together with appropriate out-buildings shall be construed thereon.

Within five years of the first of Owne's sales, all of the 30 purchasers had recorded their deeds from Owen and had built substantial one-family residences on their lots.

Within fifteen years of the first of Owen's sales, land surrounding the 50-acre tract was substantially developed and became of a mixed residential and commercial character. This development resulted in a great increase in the value of Owen's 15 remaining lots of commercial use. Owen then sold those remaining lots to Bob, who now has commenced construction of a shopping center.

Prior to purchasing Owen's lots, Bob asked Owen if there were any restrictions on those lots, and Owen told him there were none. Bob also examined Owen's direct chain of title prior to his purchase and discovered no indication of the restrictions.

The owners of the original 30 lots (Homeowners) learned of the sale by Owen to Bob and Bob's intended use of the 15 lots only when the shopping center construction began. Homeowners promptly objected to Bob about his construction contending that he is restricted to using the 15 lots he purchased from Owen for single-family residence purposes. They also contend that the shopping center will generate excessive traffic, exhaust fumes, and noise near their homes.

—F87Q3

Intent[edit]

Here, Owen exhibited a clear intent by offering his lots to purchasers of purely residential nature and including in the deed that the land "shall be used only for residential purposes" and prohibited no structure except a single-family residence.

Touch and Concern[edit]

Limiting the lots to only residential purposes and prohibiting construction of structures other than single-family residence clearly has an impact on each landowner’s use and enjoyment of their property and thus the land so it touches and concerns the land.

Notice[edit]

Bob could argue that he did not have notice of the covenant since Bob asked Owen who answered there was no restriction and Bob's examination of Owen's direct chain of title prior to his purchase revealed no restriction what so ever. Notice can also occur through inquiry notice and here, it is likely that Bob could have noticed the restriction by inquiry notice as the entire tract was built with only a single family residence and and a reasonable purchaser could have noticed by a search of the record.

Privity[edit]

  • Horizontal

Owen who was the original seller sold it to Bob.

  • Vertical

Vertical privity also exists because Owen, the party making the covenant, sold his entire remaining interest in his parcel to B.

Equitable Servitude[edit]

The rules are similar except privity requirement and being enforced at equity.

Implied Reciprocal Servitude[edit]

Original owner intended a common plan or scheme
Owen owned an unzoned 50-acre tract that was unimproved. He divided it into 45 one- acre lots with access roads. Owen offered the 45 lots for sale and told each prospective purchaser of the purely residential nature of the entire 50-acre tract. He sold 30 of the lots to 30 different purchasers and retained ownership of a block of 15 contiguous lots located on the easterly edge of the tract. The deed delivered to each purchaser contains the following language:

The grantee agrees for himself and his successors in title that the land hereby conveyed shall be used only for residential purposes and no structure other than a single-family residence together with appropriate out-buildings shall be construed thereon.

Within five years of the first of Owne's sales, all of the 30 purchasers had recorded their deeds from Owen and had built substantial one-family residences on their lots.

—F87Q3

Here, it seems there was a common plan or scheme to create a residential neighborhood for single family houses by Owen the original owner.

Statute of Fraud[edit]

Oral conveyance violates the Statute of Frauds which requires writing. However, there is part Performance exceptions to the SOF.

Possession plus payment Substantial improvements are made to the premises Conveyance made by the seller

Owen took title to Blackacre in 1965 and that record title has remained in his name ever since. Allen attempted to testify that while he and Owen were camping on Blackacre in 1985, Owen said, "I'm giving you this 100 acres as a college graduation present. From now on it's yours." ***

Allen was able to establish that he stayed on Blackacre after the camping trip, cleared some of it, built a cabin and barn, did some fencing, and paid the taxes. He raised sheep which grazed over the entire 100 acres. In 1989, Allen left Blackacre to attend graduate school in another state. However, before leaving he leased Blackacre in writing to Shepard for three years. Shepard also raised sheep on Blackacre. At the end of Shepard's lease in 1992, Allen returned to Blackacre and has lived there ever since.
In 1991, Owen hired surveyors to lay out a recreational subdivision on Blackacre. They were on the land about three weeks taking measurements and placing markers, but nothing further was done after they left.

—F88Q2

Here, Allen foreseeably relies and in consequence of the reliance the donee incurs substantial detriment. here, it was foreseeable and reasonable that A would rely on this statement of present gift. A has incurred substantial detriment as a result of bearing the cost of or doing the labor necessary to (a) clear the Land, (b) building two structures on the Land, (c) fencing the Land and (d) paying taxes on the Land. Any of these costs standing alone might be substantial but taken together they almost certainly are substantial.

Implied Warranty of Habitability[edit]

Repair and Offset the Rent Due[edit]

Every lease contains an implied warranty of habitability that the landlord warrants he will keep the premises in good repair. Where the landlord fails to do so, the tenant may make the repairs herself and and offset the rent due. This is known as repair and abatement of rent.

Mary moved into Apt. #1 on June 1 and paid the June rent on Apt. #1. Later than month, the police were called by neighboring tenants to Apt. #1 at 4:00 a.m. and asked to break up a very noisy party hosted by Mary. On July 1, Mary informed Owner that she had paid out an amount equal to the entire July rent to replace an exposed, uninsulated electric wire which she had discovered in a closet within Apt. # 1 , and that she would not pay the July rent.
—J93Q5

Here, Mary refused to pay the July rent on Apartment #1 because she had to expend her own money to repair an exposed, uninsulated electric wire that was in her closet. The facts do not indicate how much rent Mary is paying, but assuming it is $500, it is extremely unlikely the cost of repairing the wire amounted to $500. If it did, then Mary could abate the entire month's rent. However, if the cost of repairing the exposed wire was less than $500, Mary could only offset the amount of the repair against the rent. If Mary was not paying the proper amount, then she was defaulting on her lease payments. Owner could seek possession of the premises based on the amount of the unpaid rent that exceeded the cost of repair of the wire. Moreover, Mary should have requested Owner to make the repair before she volunteered to do it on her own. However, in light of the fact that he never repaired her former flooded apartment, it is reasonable to assume either he refused to make the repair or Mary was certain Owner would not make it. Then Mary’s voluntary repair would be proper.

Waste[edit]

Most tenant duties are express in the lease, except for the implied duty not to commit waste. A tenant must prevent waste and cannot damage leased premises without effecting repair. There are voluntary waste, permissive waste, and ameliorative waste.

(Orin conveyed Blackacre to Arthur orally) Arthur took Orin at his word and erected a vacation cottage in the middle of Blackacre.
—F91Q4

Fixtures[edit]

Fixtures are items that were once movable chattel but that have become so attached to the premises that they are deemed fixtures and considered part of the real estate.

(Orin conveyed Blackacre to Arthur orally) Arthur took Orin at his word and erected a vacation cottage in the middle of Blackacre.
—F91Q4

Building Permits[edit]

5th Amendment Taking[edit]

The "takings" clause of the Fifth Amendment to the U.S. Constitution requires just compensation when the government seizes private property for public uses.

Air Rights[edit]

Generally, a landowner has no light to sunlight. For instance, an owner almost never acquires an easement of "light and air" by implication or by necessity.

References[edit]