Property Outline 1. Title Assurance- developed to assure purchasers of land they have good title.

Where common law could be confusing and cause problems with granting land. Sometimes the records are not perfect, so title insurance is sold to guarantee title. Insurance companies maintain their own records systems a. The Recording System-the purposes they serve i. It establishes a system of public recordation of land titles-So people may access them like if there were a loan due ii. The recording system preserves in a secure place important documents that, in private hands, may be easily lost or misplaced 1. Any deed, mortgage, lease, option, or other instrument affecting title to land may be recorded iii. Recording acts have the function of protecting purchasers for value and lien creditors against prior unrecorded interests. 1. At common law priority of title was determined by priority in time of conveyance. 2. So purchasers will want to check to see if there are other interests in the land b. The Indexes i. Tract Indexes 1. Property is listed by the tract number, to find the information that you need 2. All documents are indexed for that tract. 3. These are mainly used by private abstract companies or title insurance companies ii. Grantee 1. Listed alphabetically by the grantees name 2. Who purchased the property from who a. Finding the person you are buying from, then working back to see who they purchased it from, and so forth till the root of title is found iii. Grantor 1. Works in reverse from Grantee index, but after finding the root of title you search to the current owner 2. Done to show easements, mortgages, leases; Generally shows encumbrances iv. Root of title 1. When the government granted the title v. Notes and Problems 1. Checking the brief legal description for multiple names 2. Similar names should also be looked at 3. So should names that are phonetic search may be required c. Types of Recording Acts i. These are by statute ii. Race 1. Two persons holding claims to real property 2. The first person to properly record will prevails. a. Thus protects a subsequent purchaser 3. Even if there is notice of a prior conveyance, if the subsequent purchaser records first they will prevail

4. Is an easy bright line rule, fewer resources spent on issues of the dispute 5. BUT, raised issue of fairness iii. Notice 1. A subsequent purchaser or creditor for value prevails over prior claimants, SO LONG AS the subsequent purchaser acquires the interest without notice of the claim a. Notice can come through a number of ways, recording 2. Prevails upon closing, there is no need to record to prevail against prior claims a. Done to reward bona fide purchasers with no notice, and refuse to condition that protection on the subsequent purchasers winning the race to record. b. NOT: There may not necessarily be evidence of who purchased first, and if there were notice 3. Actual Notice-EASY a. Where a subsequent purchaser of her agent had actual notice or knowledge of a prior claim. b. From personal observations; a document in the deed records, or hearing it through negotiations or from outside conversations 4. Constructive Notice a. Notice or knowledge that a purchaser COULD GAIN by searching the deed records. b. Deemed to know all the matter contained in records, even if the purchaser did not search them. c. NOTE: If a deed is not recorded properly, then there can be no constructive notice. 5. Inquiry Notice a. When a purchaser observes something that would cause an ordinarily prudent person to inquire further. b. If that is the case, there is notice of the unrecorded claim. iv. Race-Notice 1. A subsequent bona fide purchaser or creditor who first records prevails against a person claiming a prior, unrecorded interest as that the subsequent purchaser did not have notice of the preceding interest. a. There can be notice at the time of recording, not during purchase or closing 2. In order for a subsequent purchaser to prevail they need to a. Purchase without notice; AND b. Record first v. Notes and problems 1. Defects in the deed will be examined by the court a. Like whether an individual had title to convey 2. Also note that the statutory requirements of a jurisdiction must be met in order to establish constructive notice. 3. Subsequent purchasers for value a. The buyer must furnish some value b. Persons who receive it as a gift, devise, or inheritance are not protected by recording acts c. Donees, devisees, and other non-purchasers for value can prevail, by promptly recording d. Chain of title problems i. Chain of Title 1. Refers to the recorded sequence of transaction by which the title has passed from a

sovereign to the present claimant. a. Like a family history of the title 2. A period of time that is required by a jurisdiction for a search 3. Includes a. The series of recorded documents that give constructive notice to a subsequent purchaser. ii. PROBLEMS-Chain of Title 1. WILD DEED a. A deed that is not connected to the record owner; not signed and technically correct. i. If A sells to B, who doesnt record, then sells to C. C has a Wild Deed b. A wild deed would be OUTSIDE the chain of title, c. A wild deed would not create notice, unless recorded in a tract index. 2. Restrictions, CCNRs on a deed-Deed not in the Chain of Title a. If a subdivision, or owner sells tracts of land with restrictions on OTHER deeds, not the deed in question. b. Looking at other deeds by the grantor, easy under a grantee/grantor index, would reveal restrictions and warrant further investigation. 3. Notice will not occur until indexing a. Lis Pendens i. Notice of lawsuit affecting title to the property iii. Persons Protected by Recording Systmes 1. Bon afied purchasers a. Lewis i. A purchaser without notice who makes payments, has every reason to believe that his right to the property will remain secure-Different from Daniels ii. If abuyer who contienues to pay in the face of actual notice of a competing claim should be at risk of losing his post-notice investment. Assertion of the claim gives rise to a defense of the payment obligation b. Daniels Case i. A buyer, who, prior to the payment of any consideration receives notice of a prior interest, pays the consideration at his or her peril. e. Marketable Title Acts i. Acts to facilitate more efficient searches of the records, AND to annul some long outstanding interest in land. ii. Will specify a period of number of years, 30-50 years, as the search period. The title at that time period would be the root of title iii. When one person has a record title to land for a designated period of time, inconsistent claims or interest are extinguished. iv. Anything recorded on that title would be counted as notice, unless there is inquiry notice. Like for an easement. v. Some Acts: 1. Take the form of a SoL barring a claim not recorded during a period of time 2. Declare that the record owner with a clear title going back for the designated period has

marketable record title that is free and clear of adverse claims vi. Must file a claim every 30-40 years after the recording of their instrument f. Registration of Title i. Improvements 1. Calls for the register to clean up the title and process 2. Created Parcel Indexes 3. Issues certificates ii. Torrens System 1. Problems 2. Is run by the public system and recorders a. Uses the Government Office b. Assurance is done through the Government, not privately 3. Idea is that it cleans up title, with parcel and certificates 4. A very slow process 2. Title Insurance-Part insurance, par indemnity contract. Its function is to provide a system for disclosure of the state of a title. Title insurance companies maintain title plants where real estate records are kept that are the equivalent of tract indexes. a. Insures against that the insurance company has searched the public records, insures against defects unless excepted from coverage b. There is no assignment or running of benefits; the insurance lasts as long as the titleholder holds the land. Subsequent title holders will need their own insurance c. There can be Exceptions/Exclusions in Title Insurance; UNLESS a notice of enforcement or violation is recorded in the PR i. Government regulations affecting use ii. Occupancy iii. Enjoyment of land (zoning ordinances, subdivision regulations) iv. Also, claims of persons in possession not shown in public records, v. Unrecorded easements vi. Implied easements vii. Easements arising by prescription viii. That would be revealed by survey or inspection d. You can always negotiate to have exceptions removed, you might need an endorsement, e. Title insurance gives rise to two sorts of claims i. Contract 1. There is a loss, and an obligation to make whole the losing party ii. Tort 1. A negligence claim, the title company negligently did their search 2. Under torts, there was no duty to do a good title search a. Unless asked to 3. Courts have moved to where there is a duty to do a thorough title search iii. The Title Companys liability is limited to the policy and the company is NOT liable in tort for negligence in searching records. f. Where Title is Unmarketable i. Hazardous waste does make a title unmarketable;

ii. Land being unmarketable, does not affect the marketability of title 1. WASTE has nothing to do with the title, it affects the value 2. Value =/= marketable title 3. Title and physical land are completely different 4. One can hold perfect marketable title to land that itself is unmarketable. iii. A lien is an encumbrance, and would be recorded 1. The lien would not be effective until it attaches before the purchase 3. Law of Nuisance a. Is based primarily in tort law, with some property governance b. Maxim: Every person should so use his own property as not to injure that of another c. Substantive Law i. Private Nuisance is an act or condition on the defendants land that substantially and unreasonably interferes with the plaintiffs use and enjoyment of plaintiffs land 1. May be intentional or unintentional ii. Intentional invasion arises when the conduct is unreasonable under the circumstances of the case d. Elements i. Substantial interference ii. Non-trespassory iii. Invasion iv. Of anothers interest in use or enjoyment of the land? e. Intentional i. The party has knowledge, OR 1. Knowledge that the act may be a nuisance, or intends to do the act and it would cause some damage ii. Acts with the purpose to cause the damage-Purpose iii. Un-Reasonable in order for the court to impose liability. MUST look at the particular case iv. Reasonable/Unreasonable Test-Balancing threshold 1. Test 1: Common Law Threshold Test a. The relevant inquiry is said to concern the level of interference that results from the conductparticularly, whether the interference crosses some threshold that marks the point of liability 2. Test 2: Restatement Balancing of equities test a. To determine unreasonableness in a case of intentional nuisance, the court is to consider whether the gravity of the harm outweighs the utility of the actors conduct i. Factors relevant to gravity of harm 1. Extent and character of the harm, 2. Social value of the plaintiffs use, 3. Its suitability to the locality in question, and 4. The burden on the plaintiff of avoiding the harm ii. Factors relevant to the utility of the actors conduct 1. Social value 2. Suitability to the locality in question 3. Impracticality of the defendant preventing harm

f. Unintentional invasion i. Arises when the invasion is negligent, reckless, or ultra hazardous ii. These are found to be falling below expected standards of conduct iii. Negligence Per se, or nuisance as a matter of law involving malicious actions, spite fences and structures, nuisances forbidden by law (brothels, crack houses), pollution, or abnormally dangerous activities. g. Remedies i. Once a nuisance is found by balancing the equities, the plaintiff is entitled to an injunction ii. Most courts would go into a second more critical balancing of the equities during the remedy to determine the appropriate relief 1. Injunction a. A total bar of the activity b. Would be granted if the harm to the plaintiff outweighs the social utility of the defendants conduct, where the defendant can avoid the harm without undue hardship, or where the plaintiffs conduct is suited to the locale and the defendants activity is not. 2. Damages a. Damages paid b. Defendant can escape an injunction only if the social utility of the defendants primary activity benefits the public at large rather then merely benefitting the defendant personally (rule of necessity) 3. Damages and Injunction a. A court might give the plaintiff an injunction continuing until the defendant pays the plaintiffs damage claim; OR b. Might give the plaintiff damages, but hold that if the nuisance worsens, an injunction will be issued. 4. Law of Servitudes a. Easements-CREATION i. In General-Terms and Definitions 1. A non-possessory interest one person has in the property that another person possesses. It is a right to use anothers land for a specific purpose. 2. Generally a. Limited use or enjoyment of anothers land b. Protected against interference by third parties c. Not revocable by landowner-Its an ownership interest d. May be created by conveyance (transfer, deed, etc.) 3. Easement in gross (Personal Easement) a. Benefits a PERSON, the dominant tenant. Not attached to land b. Must be clear from the express grant 4. Easement appurtenant a. Benefits the owner or possessor of a particular parcel of land b. Ends at death, unless assignable c. The Courts tend to benefit this type of easement 5. Servient Estate/Servient Tenement

a. The land burdened by the easement 6. Dominant Estate/Dominate Tenement a. The land benefitted by the easement 7. Affirmative Easements a. Give the holder the right to go onto the servient estate for a specific purpose. 8. Negative Easement a. Gives the holder the right to preempt the possessor of the servient estate from doing some act on the servient estate. i. The English rule 1. Rights pertaining to light 2. Airflow 3. Water Channels 4. Lateral support ii. American recognitions 1. Water rights if warranted, solar easements, conservations easements b. They must be precisely defined. ii. Other Nonpossessory interests 1. Profit a Prendre profit a. The right to enter property and remove minerals, timber, or other natural resources that are a natural part of the land. 2. License a. When a landowner permits another person to use his property, but the permission is revocable or terminable at the landowners will. SO b. Oral or written permission given by the occupant of land allowing the licensee to do some act that otherwise would be a trespass. 3. Irrevocable Licenses a. Through the doctrine of estoppel, so they become indistinguishable from easements b. HOW are they created? i. Express agreement/intention ii. Implications iii. Prescription (license coupled with an interest) iv. Equitable Estoppel 1. Reliance iii. Expressly Granted or Reserved Easements 1. Express Grant or Express Reservation a. Subject to the Statute of Frauds, must have written b. Usually created by deed: i. The grantor will sell only part of her property and grants the purchaser an easement over the sellers retained land. c. The deed would incorporate a clause reserving or excepting an easement i. These can be used interchangeably d. Reservation for Third Parties? Stranger to the Deed i. Generally: May not be granted to a third party, ii. But a grantor may reserve an easement to the

benefit, if the grantor clearly shows intent on granting the easement. iii. Would need to show intent: 1. Adjusting the price to reflect the easement, 2. Clearly state it iv. Easements by estoppel and Irrevocable Licenses 1. Easement by Estoppel OR Irrevocable license a. Must have three elements i. The owner of the servient estate consents to the dominant estate holders use of the servient estate; ii. The servient estate owner knows or should know the dominant estate owner will materially change his position, believing the permissive use will not be revoked; AND iii. The dominant estate holder, reasonably believing the permission will continue, substantially changes his position by investing in improvements on either the servient or the dominant estate. 2. Estoppel a. Will result when a person uses anothers land and a court finds that person will be inconvenienced if stopped b. How they are reined in i. Some courts require the servient estate owners representation specifically be that an easement exists 1. Initial entry must be expressly permitted and 2. Some hold even silence can be estoppel ii. Another group of jurisdictions permit estopped only when the speaker intended that the claimant act in reliance on the statement iii. Some require that the servient estates owner benefit in some way from the dominant owners reliance investments iv. Others permit estoppel only if the representation occurred in a purchase and sale of the property 3. One party has so substantially changes his position in reasonable reliance on his neighbors consent that it is unconscionable not to enforce the agreement b. Implied Easements i. Implied or non-express easement are not favored, are strictly construed, but may be created under two sets of circumstances not involving a writing or bargain between the estate owners 1. A land transaction carving one parcel out of a larger property a. Separation of the ownership 2. A particular transaction of the same type, but which leaves part of the larger property land locked. c. Easements implied from prior use-Quasi-Easements i. Arise when a use was in place at a time a single parcel of land was severed or divided into two adjoining parcels, leaving one parcel benefitting the other in some way ii. All these elements must be present for an easement implied from prior

use 1. The unity of ownership is severed; a. Premised on one person owning the whole parcel when the use was in place-Cant have an easement for yourself 2. The use was in place before the severance; a. Must have engaged in the use 3. The use was visible or apparent at the time of severance; AND a. If not visible then reasonable inspection will do 4. The easement is necessary for the enjoyment of the dominant estate. a. Reasonably necessary for the fair ejoyment d. Easements Implied by Necessity i. It is an easement implied for egress and ingress, establishing a right-ofway for landlocked property. ii. Elements for any easement implied by necessity are 1. A common owner severed the property; 2. The necessity for egress and ingress existed at the time of the severance; AND 3. Ingress and egress are strictly necessary for the landlocked parcel. iii. A common owner who must have conveyed part of the property to another person and in severing the property caused one of the parcels to become landlocked. iv. It must be STRICTLY NECESSARY for egress and ingress 1. The seeking party must show this 2. Can mean absolutely necessary, but many courts interprest SN to mean strictly necessary for the enjoyment of the property or invoke a standard of reasonable necessity e. Prescriptive Easements i. By long continued adverse use ii. No negative easements can be gained 5. Assignability, Scope, and Termination of Easements a. Assignability of Easement i. The easement can be sold, gifted, devised, inherited, or otherwise conveyed. ii. Factors to consider are whether the easement is appurtenant or in gross 1. Easements Appurtenant- Run with the land, whoever possesses the dominant estate has the right to use the easement over the servient estate. These run with the land, get assigned with the conveyance. 2. Noncommercial Easement in Gross: Benefits a person whether or not he owns a particular parcel of land a. Many jurisdictions prohibit their assignment, even if commercial easements in gross are allowed. b. UNLESS, circumstances or the document creating the easement expressly stipulates the easement is assignable 3. Commercial Easements in Gross: further a money-making activity. E.G. Railroad, utility, and pipelines. a. The right to remove timber, or minerals and the right to use land or a lake for sport. b. These are generally assignable

c. Can also be inherited, maybe b. Divisibility and Apportionment i. When the easement holder attempts to share the easement with others or to assign, divide, or apportion the easement to multiple grantees. ii. Can an easement holder divide or apportion an easement among several grantees? iii. Easement Appurtenant 1. By subdividing and selling parcels of the dominant estate, transfers the easement with each parcel. Each parcel results in a dominant estate and the owner enjoys the easement, so long as the dominant estate owners do not overburden the servient estate. iv. Easement in Gross-COMMERCIAL 1. Easements in gross that are not assignable obviously are not divisible or apportionable. 2. Exclusive Easements in Gross a. Where the easement holder has the sole right to use an easement. b. Has the sole power to authorize others to use it, not even the servient tenement can allow others to use it. c. So long as the total burden does not amount to asurcharge or misuse of the easement d. Most jurisdictions do not presume that an exclusive easement is intented, absent clear language. 3. Nonexclusive easement in gross a. Cannot subdivide or apportion any rights to the easement. b. The servient estate owner can authorize others to use the easement and the holder of the nonexclusive easement in gross cannot prevent the servient estate owner from granting the right to use an easement to other persons. 4. NOTE: When multiple persons share he exclusive right to an easement, the multiple owners must act with one voice (One-Stock Rule) c. Score of Easements i. Defined 1. Delineates the extent of use an easement holder may make of the servient estate 2. Refers to location, intensity, and manner of the use 3. An easement holders use cannot exceed its scope. ii. General Rule 1. The holder may make such use of the easement reasonable necessary for the enjoyment of the dominant estate and not unreasonably burdensome to the servient estate iii. LOCATION 1. Once the location is established, the easement owner must remain within the located easement 2. Anything outside the easement, even for the same use, is a trespass. 3. If an easement is expressly located, the terms of its grant or reservation control a. Should describe the precise location of the easement 4. If the location is unspecified, usage can generally establish its location 5. IMPLIED EASEMENTS from Prior Use and by Prescription a. Are fixed by the use made at severance or the start of the prescriptive period 6. IMPLIED by Necessity

a. Must be physically located after the easement is recognized. b. GR: If the location cannot be ascertained from its deed or other document, the servient estate owner can within a reasonable time locate the easement, but if the servient estate does not locate the easement or if the proposed location is unreasonable, the dominant estate holder can locate the easement, having due regard for the convenience of the servient estate owner iv. INTENSITY OF USE 1. When the intensity of the use is specified in the grant or reservation, they control. 2. GR: That an easement holder can use the easement as long as the use is reasonably necessary for the dominant estate and does not overburden the servient estate. 3. In ascertaining the original parties intent, courts presume the parties intended the scope of the easement would evolve to accommodate reasonably foreseeable changes in the surrounding area and in society. a. E.g. An easement granted in 1900 for a road would be mostly by foot, horse, and buggy. A century later automobiles are natural developments, the scope will be adjusted to accommodate progress. v. NO BENEFIT ALLOWED TO NONDOMINANT PROPERTY 1. An easement appurtenant may benefit ONLY the dominant estate. a. Cannot benefit the adjoining property, even if they have the same owner. b. ANY extension of the benefit to another party is a misuse of the easement vi. IMPROVEMENTS, MAINTENANCE, AND REPAIR 1. An easement holder has the right to improve the easement as long as the improvements a. Promote the use of the easement, b. Are within its scope, AND c. Do not unreasonably burden the servient estate owners use or enjoyment of her property 2. An easement holder has the duty to a. Maintain and repair the easement and any improvements placed on it, b. As well as liability for negligent repairs, c. For slip and fall events on the easement d. For injurty to the servient estatedonein the course of fulfilling this duty. vii. TERMINATION OF EASEMENTS 1. By terms of the grant a. The instrument granting or reserving the easement my set an expiration date, term of years, or a condition. b. E.G. The grant may allow an easement of egress and ingress as long as the grantee continues mining operations or until a highway opens; OR a landowner may grant an oil company a pipeline easement for 50 years. 2. Purpose for Easement Ends a. E.G. an easement to enter an apartment complex to install and service cable lines ends if the apartment building is destroyed. b. Usually applied to easements implied by necessity 3. Merger a. Once a person gains concurrent ownership of both the dominant and servient estate, the estates merge and the easement disappears. b. There must be a new agreement to renew the easement if the common owner severs the

property 4. Forfeiture for Misuse a. Extraordinary remedy only imposed in the most egregious cases of misuse. b. More commonly an injunction is granted halting the misuse. 5. Release a. The easement holder by deed can transfer part or all of the easement to the servient estate owner. b. The transfer is called the release and MUST be writing. Statute of Frauds. 6. Abandonment a. Has two elements i. Intent to abandon; AND 1. Is often hard to prove, it must be evidenced by some identifiable and unambiguous act inconsistent with continued ownership of the easement ii. Subsequent nonuse 1. No matter how long continued, is neither an identifiable act or an unambiguous fact, not an act inconsistent with the ownership of the easement. 2. For a long period of time does give credence that some oral pronouncement or action take long ago constituted the requisite unambiguous act denoting the intent to abandon 7. Estoppel a. The servient estate owner can extinguish an easement by estoppel b. The same standards apply at termination as at creation: i. The easement holder consents to the servient estate owners use of the easement location in a manner inconsisten with the easements use; ii. The easement holder knows or should know that the servient estate owner, believing the consent will not be revoked, will materially changer her position; AND iii. The servient estate holder, reasonably believing the consent will not be revoked, substantially changes her position, usually by constructing improvements over the easement. 8. Prescription a. A servient estate owner can terminate an easement by prescription b. The servient estate owner must use the easement in a manner adverse to the easement holders right. NOT EASY OCEAN. c. The servient estate owner must prove her use of the property was inconsistent with continuation of the easement. i. E.G. Blocking a road with a fence, putting up a stone wall 9. Recording Acts a. Is also subject to a states recording acts. b. A subsequent bone fide purchaser who takes without actual, constructive, or inquiry notice of the easement is not bound by the easement. c. Same principles apply, the easement holder must record 10. Eminent Domain a. In taking property, the government also takes the easement.

b. Consequences i. The easement is extinguished ii. Because the Gov took the interest, the government must compensate the easement holder 6. Real Covenants & Equitable Servitudes: Running with the Land a. Introduction i. Owners of property were once able to contract with each other for the use or non use of the their property. Subsequent purchasers could not take advantage of this due to privity of contract. ii. Modern courts 1. Give subsequent purchasers of property standing to enforce the agreement against other landowners who were parties to it; AND 2. Obligate subsequent purchasers to honor the obligations affecting their property, even though they had no interest in the land affected by the agreement at the time it was executed and were not a party to it. iii. Courts of Law invented real covenants (covenants that run with the land). iv. Courts of Equity created equitable servitudes b. Terminology i. Real Covenants and Equitable Servitudes are agreements, promises, or deed provisions that relate to real property and that bind or benefit subsequent owners of the respective properties solely because they OWN the property ii. Real Covenants-burden estates in land, not the land itself 1. Affirmative covenants-require the owner of the burdened estate to perform some act or to pay money. E.G. Duty to maintain a wall or dam 2. Negative covenants-restrict or prohibit the uses that can be made of the burdened property. E.g. restricting to single-family units, prohibiting the sale of alcohol. iii. Equitable Servitudes-bind subsequent owners but re not referred to as running with the land c. IDENTIFYING REAL COVENANTS AND EQUITABLE SERVITUDES i. Creation 1. Must satisfy the Statute of Frauds-Must be expressly created in a writing, usually a deed. a. Part performance and equitable estoppel exceptions apply here also. ii. Real Covenant 1. Intent to Bind Successors 2. Touch and Concern 3. Privity of Estate a. Horizontal Privity b. Vertical Privity 4. Remedy-Damages iii. Equitable Servitude 1. Intent to Bind Successors 2. Touch and Concern 3. Notice

a. The successive owners of the burdened property have actual, constructive, or inquiry notice of the covenant. 4. REMEDY-Injunction or enforcement of a lien d. INTENT TO BIND AND BENEFIT SUCCESSORS-BOTH i. The intent that the covenant will run with the land must be ascertainable from the deed setting out the covenant. ii. Words to look for 1. heirs and assigns 2. This covenant shall run with the land: 3. The covenant is appurtenant to the land iii. ISSUE: whether the benefit runs with some other property, or whether it is enforceable only by the origin 1. Often resolved with an inference that the benefit will run with the land if the promisee owns neighboring property. 2. The benefit is considered personal to the promisee if the promisee retains not land near the burdened estate. 3. The running of benefit must be analyzed separately from the running of the burden. One Benefit might run, while the other does not. e. TOUCH AND CONCERN i. One time meant physically touch and concern property, many do physically touch and concern land 1. E.g. limiting to property to single-family residences, prohibiting improvements from being built closer than five feet from the prop line, or requiring all structure to have brick exteriors. ii. Touch and Concern element is premised on the presumed intent of the original arties to the covenant. 1. Whether a reasonable person upon reflection and hindsight would have intended the covenant to run with the land. 2. It focuses on the reasonableness of having the covenant bind successors a. Is so connected with the use of the land that the original parties must have expected it to run iii. Burdens that touch and Concern Land (or Dont) 1. Restrictions on land as far as their usage, and banning the running of a business touch the land. Do touch and concern the land 2. Payment of money, named management company will manage the property, prociding that the seller will build a house on the lot when the buyer decided what kind of house to build (subsequent purchasers will not be forced to use the seller as their builder). Do not touch the land. a. EXCEPTION: the requirement that the burdened property owner pay money to a homeowners association, which will be upheld as touching and concerning the land, since the money will be spent to maintaining property or the common area. iv. Benefits that Touch Concern Land (or Dont) 1. The covenant must touch and concern the benefitted property for the benefit to run with the land, not matter whether the burden is personal to the promisor or is a real covenant or equitable servitude running with the burdened property. a. E.g O owns two lots. He conveys to P and restricts that P shall not use the land for

anything other than a single-family residences. 2. Whether a reasonable person upon reflection and hindsight would have intended the benefit to run, leads to the conclusion that the legitimate purpose of the restriction on Ps property is to improve the use and enjoyment of the second lot. v. The legal relations Test 1. Provides that a covenant touches and concerns the land when it affects the legal relationsthe benefits and the burdens-of the promisor and promisee as owner of their respective properties. 2. If the covenants benefits and burdens are evaluated together, then any burden is a benefit to the promisees property, and thus every covenant touches and concerns the land. f. Real Covenants, and Privity of Estate i. Horizontal Privity 1. Horizontal Privity is either instantaneous privity or mutual privity. a. Instantaneous i. Exists when the original promisor and promisee transferred a property interest of some type: They must be in a grantor-grantee relationship in a deed transferring the fee simple, or a landlord and tenant in a lease. b. Mutual Privity i. Arises when one original party transfers an interest in land to the other original party. Created only in conjunction with grants of less-than-fee, present, freehold estates; leases; or easement. 2. The transfer of the property and the creation of the covenant must occur simultaneously. a. The covenant will not run unless there is not also a transfer 3. Some states have states that the burdened party need only have actual, constructive, or inquiry notice of the covenant. Notice ii. Vertical Privity 1. A relationship between an original party to the covenant and her successors in interest 2. REQUIRES: a. That the subsequent, remote property owner succeed to an original partys entire estate or ownership interest in the property. b. Either directly from an original party or through person on the same chain of title tracing their interests back to an original party to the covenant. 3. For a burden to run a. The party must have succeeded to the original promisors entire estate or ownership interest. b. Entire Estate means tenants are not in vertical privity with their landlords. 4. For a Benefit to run a. A remote or subsequent purchaser have a possessory interest in the property g. Equitable Servitudes and Notice i. Equitable Servitude needs Notice of the covenant when he or she buys the burdened property. ii. The rationale underlying equitable servitudes is that a subsequent, remote landowner should be bound by a covenant at least for injunctive relief, if the original parties intended the burden to run, the covenant touches and concerns the land, and the person

to be bound knows about the covenant. iii. Fairness and a sense of unjust enrichment underline the notice element for an equitable servitude. 7. Real covenants and Equitable Servitudes: Common Schemes and Termination a. Common scheme and Subdivisions i. Common Interest Communities ii. Where there are incorporated covenants in the deeds to promote residential use, maintain value, preserve aesthetics, promote safety, and for other purposes the sub divider believes will increase the value of the lots iii. Problems may arise in these situations, where things are recorded on all deeds or they vary from deed to deed. iv. A COMMON SCHEME or GENERAL PLAN OF DEVELOPMENT may be drafted to impose burdens and grants tanding to enforce the servitudes v. ONLY FOR EQUITABLE REMEDIES-e.g. injunction b. Common scheme and standing to enforce a servitude i. Common Scheme concept is primarily used to overcome most of the legal obstacles that arise with traditional real covenant and equitable servitude analysis. ii. Can also be used to imply, not just benefits, but burdens. iii. It can be used to permit any lot owener in a subdivision to sue any other lot owner. iv. NOTE: The common scheme does not itself create a restriction or burden; instead it tells a plaintiff alleging the benefit of a covenant whether she has standing to sue a burdened lot owner c. Common Scheme and Notice for Recording acts and Equitable Servitudes i. As a result of notice, often developers will need to record the restrictions with a map or plat of the subdivision. These will also contain the CCRs. d. Common Scheme and the SoF i. The common Schemes must be in writing to satisfy the Statute of Frauds e. What constitutes a common scheme? i. COMMON COVENANTS 1. Sometimes the common scheme is not sufficient, as there might be different restrictions imposed depending on where the property sits. 2. This is intensely fact driven ii. WHEN A COMMON SCHEME BEGINS 1. Important issue, if lots were sold before the scheme then they are not bound by it. As a result there is no implied covenants and no other owners will have standing. iii. GEOGRAPHIC BOUNDRIES 1. Fact driven f. Termination of covenants and Servitudes i. Terms of the Covenant 1. Many exist for a number of years, or terminate at an occurrence. 2. A covenant may be renewed periodically, either by its term or cote of all benefitted and burdened owners. ii. Merger

1. When a single owner acquires the benefitted and burdened property. iii. Release 1. Owners of a Benefitted property can release the burdened property through writing that meets the Statute of Frauds. iv. Rescission 1. A mutual release. An Executed document rescinding the covenant so that the covenant no longer binds ANY property. Effective only if all parties with standing join in executing the document. v. Unclean Hands 1. Courts will not allow a benefitted owner to violate a covenant and at the same time to enjoin another landowner from violating it. 2. A minor infraction, however, does not foreclose an action against a neighbors egregious violation. vi. Acquiescence 1. Intentional tolerance of a covenants violation. Prevents a benefitted party from enforcing the same covenant that is she is acquiescing to. vii. Abandonment 1. Requires both intent to abandon and an act of abandonment. 2. Happens with covenants and common schemes. viii. Laches 1. When a benefitted owner waits so long to bring suit to enjoin a covenants violation that the burdened owner is unduly harmed by the delay itself. ix. Estoppel 1. May not act in a way indicating that she does not intent to enforce a covenant, and then enforce it. 2. There would be reasonable reliance by the burdened owner, resulting in substantial injury. x. Changed Conditions 1. The covenant no longer serves its intended purpose. Equity will not enforce a covenant if the conditions in a covenanted subdivision have so changed that its benefit is no longer substantial. xi. Recording Acts 1. A subsequent bona fide purchaser who takes without actual, constructive, or inquiry notice is not bound by them xii. Eminent Domain 1. When the government purchases the burdened property, the covenant burdening the land is extinguished. 8. Constitutional and Statutory constraints on Zoning a. Municipal Governments have no inherent powers. All powers are derived from the state government. i. Done through enabling statutes that allow zoning ordinances, housing, and building codes. b. Comprehensive zoning laws were being made i. Regulate use throughout the city ii. Regulate all uses within a zone, not just those that may be nuisances. c. The Standard State Zoning Enabling Act was drafter and was adopted or modeled by a

majority of the states. i. Divides the municipality into use districts, and locates them on a zoning map. ii. Has a system of appeals, Board of Zoning Adjustment or Board of Zoning Appeals. (BZA) iii. Can grant variances, Special exceptions, or conditional uses d. Enacting a Zoning ordinance i. Generally a Zoning Ordinance can be enacted the same as any other ordinance, notice, hearing, and procedural requirements. Sometimes a General Plan or Comprehensive Plan must be enacted first ii. General or Comprehensive Plans 1. A guideline for the zoning 2. Land use components, 3. Goals that the ordinance should strive for; like preserving the character of the district, maintaining property values, promoting health, safety, morals, and general welfare of the municipality. e. Cumulative and Noncumulative Zoning i. Cumulative Zoning 1. Boundaries that are restricted based their uses. 2. Things allowed in a less dense zone, would be allowed in denser zones. 3. No use may be in a less dense zone than the zone it is in. 4. E.G. A house in U-1 would be allowed in U-6 (for businesses). But not the other way around. 5. Because of this Zoning by Districts is called Euclid Zoning ii. Noncumulative Zoning 1. OR Exclusive us zoning 2. Permits only expressly authorized activities in each district. f. Non-Conforming Uses i. Are legal in a place when an ordinance takes effect and that, except for already being in the district, would not be permitted in that district under a newly exacted zoning ordinance. ii. IT MUST EXIST iii. The nonconforming use must act within the natural growth of the business iv. A Change in ownership does not end the status of the nonconforming use: It runs with the land not the landowner. 1. Done so that the owner can get its full amount, since selling it otherwise would make it unmarketable. v. Some municipalities will not allow expansion or rebuilding of the property vi. Amortization 1. Where a municipality will give the nonconforming use a set amount of time to recoup their costs, and then shut down. 2. Courts will often hold them up. 3. The reasonableness of the provision will be the time that is given to them. 9. Variances, special Exceptions, and Zoning Amendments

a. Variances i. Allows the landowner to build on land or use the land in a manner otherwise not permitted by the zoning ordinance ii. Use Variances-Permit a use otherwise prohibited in the district iii. Area Variances-Permit deviations from area, bulk, setback, street frontage, floor space, and height and other nonuse requirements of the zoning ordinance iv. Will Look at 2 factors 1. The landowner applying for a use variance suffers an unnecessary or undue hardship in the use of the land or, in the case of an area variance, the practical difficulty of the variance is denied; a. The owner cannot do anything else with the property; b. Owner must have first made reasonable attempts to comply with the ordinance. c. Must not be self inflicted 2. The grant of the variance will not substantially impinge upon the public good and the intent and purpose of the zoning plan and ordinance a. Manner in and extent to which the variance will impact upon the character of the area b. If the good would fit in, similar to other homes in the neighborhood b. Special Exceptions i. Special use, special use permit, or conditional use. ii. It is expressly provided for in the text of an ordinance, but not located on the zoning map. iii. The use is not a right, but it permitted conditionally iv. Unlike variances, it is a list of special exceptions that may be located in the district. 1. E.g. generate heavier traffic, involve a high volume of users, or are likely to have detrimental effects on surrounding parcels. Banks, churches, convenience stores v. The conditions/standards/rules for the special exceptions need to be clear and easy to understand. vi. Landowner shows 1. The use is a special exception 2. The use will meet all conditions 3. The special exception will not detract from the areas health, safety, and public welfare beyond that inherent in the normal conduct of the activity itself. c. Judicial Review i. The standards set forth by the municipaily or Board must not be too broad or too narrow. ii. The board must also give proper procedural due process. d. Amendments i. Amendments can be made the same way other ordinances are brought up ii. There must be a rational relationship/basis for the new zoning e. Spot Zoning i. When the municipality rezones a parcel or parcels into a more intensive or less restrictive use and the property is rezoned for the benefit of its owner and not for the

public. ii. Will look at 1. Whether the amendment is in accord with the comprehensive plan 2. Whether it is in the public interest, or only benefits the owner a. Compatible with surrounding uses 3. Whether the parcel is special or privileged a. One owner, or involves a relatively small parcel 10. Zoning Extending and Chalenged a. Household Composition and Single Family Residences i. The underlying issue is the extent to which the state may regulate the composition of households as Single Families b. Villiage of Delle Terre v. Boraas i. Permits municipalities to limit the number of unrelated persons that may live in a house as a single family ii. Give rise to a rational basis test. Is deferential to the municipality 1. Reasonable 2. Not Arbitrary 3. Must be a good fit c. Moore v. City of East Cleveland i. Prohibits municipalities from limiting the number of related persons that can constitute a family ii. Will be a more narrow standard of review d. Fair Housing Act and Group Homes i. Has protected groups, the physically/mentally disabled, a record of having an impairment, regarded as having such an impairment ii. Must make reasonable accommodations e. City of Edmonds v. Oxford House i. The Fair Housing Act is a tool for discriminatory ordinances ii. There is an exception for reasonably restricting household composition. iii. The restriction is to be based on household composition, whether or not they are related. 1. The ordinance based the composition restriction on familial status f. Aesthetic Regulation-Expanding i. Aesthetic ordinances, regulating the architectural appearance of signs and billboards, structures, historic districts, and landmarks. 1. Can prohibit based on appearance 2. Zoning regulations are given deferential review 3. In so far as it affects the character, and value of the neighborhood. 4. NOTE: It cannot be entirely vague, regulate a look that we will know when we see it, their needs to be a guidline ii. Issues 1. Free speech, Substantive Due Process a. Content of the speech? In essence you cannot ban speech on private property. But you can set limits (size, etc.)

Speech that is too little. Narrow restrictions Controlling speech, deciding what speech would be considered correct speech. Speech that restricts too broadly There would be whole avenues of communication that would be closed. Religious Uses i. Religious Land Use and Institutionalized Persons Act (RLUIPA) 1. Created by Congressii. Municipalities are prohibited from applying a zoning ordinance in such a way that a substantial burden is placed on the use, building, or conversion of real property for the purpose of religious exercise, UNLESS 1. The municipality demonstrates a compelling interest in doing so; AND 2. Uses the least restrictive means of furthering that compelling governmental interest iii. The municipality must justify its restriction and creates a heightened standard for review. iv. Determining if RLUIPA applies1. Individualized Assessments a. Were they burdening this one single entity 2. Is there a substantial burden? a. Is it merely a permit that is required?-Not substantial. b. Is the Permit expensive?-Substantial c. Does the Gov have a compelling interest and narrowly tailored means? i. Wanting to protect Taxes is not compelling. ii. Floor area ratio, reduce impact on surrounding infrastructure and properties, concern for traffic and safety-Can be an interest h. Exclusionary Zoning i. Euclidian zoning is an exercise in separating land uses into districts. ii. Activities and structures are EXCLUDED from various districts iii. Problems arise 1. Possible authority to discriminate against those who ought not to be discriminated against 2. Some jurisdictions are very proactive iv. Municipalities should not be able to zone out the poor. v. Municipalities must make realistically possible, a variety of house uses 1. A fair share vi. Techniques 1. Minimum Floor Area a. Predate the housing act, and can be established. b. Set without regard to residence 2. Minimum Lot-Size a. Upheld generally, but their exclusionary effect can provoke judicial skepticism 3. Minimum Setback a. Upheld because they increase light and air, reduce danger from fire, and advance aesthetic concerns b. These have cumilitive effectson the production of low-cost housing 4. Barring mobile or manufactured homes 2. a. 3. a. g.

a. Not held up so much anymore 5. Energy conservation regulations, environmental regulations, and growth controls-ALL increase house pricing. vii. SINCE Mount Laurel 1. EVERY municipality must provide a realistic opportunity for decent housing for its poor, except where the poor represent a disproportionately large percentage of the population. 2. Undertake affirmative measures to assist developers in obtaining aid viii. Different States 1. Some operate under the presumption that zoning ordinances are presumed to be constitutional 2. Rational Basis Test 3. Middle ground by maintaining validity, but judged in regional interests 4. Some with the same spirit and Mount Laurel i. Environmental Constraints affecting ZONING i. National Environmental Policy Act (NEPA) 1. Requires Federal agencies to file reports based on potential impacts on the environment 2. Since this passing states have passed their own policy acts, that similarly require state agencies to complete Environmental Impact Statements or Reports (EIS) ii. State Environmental Policy Acts (SEPA) 1. Affects State Agencies and Regulatory Bodies 2. A report on the environmental impact- Environmental Assessment Statement (EAS) a. Either is or isnt 3. If there is NO negative impact, then their might not be a requirement to file a. File anyway 4. If there IS a negative impact, an Environment Impact Statement (EIS) will be filed iii. Affects on Zoning 1. Granting exceptions...SEPA will come in and require an EAS and EIS analysis iv. Must do the analysis at the time the act starts, not as people expand their property or make changes to it. v. The Judicial standard of review 1. Will not overturn a negative declaration (no impact) unless the declaration was affected by an error of law or was arbitrary and capricious or an abuse of discretion. 2. Whether the agency identified the relevant areas of encironmental concern, took a hard look at them, and made a reasoned elaboration of the basis for its determination. vi. The studies can be arbitrary, or made up. 11. Takings a. Eminent Domain i. Where the government purchases property from an unwilling seller ii. The 5th Amendment does not create the Eminent Domain, it merely acknowledges it and constrains it b. Public Use i. Only can take for Public use, but what is public use? ii. RULE: Eminent Domain can be qualified, when the taking is used as a larger plan that is meant to benefit the public as a whole.

iii. The Government CANNOT take land to give to another for PRIVATE USAGE. But note: 1. The Government CAN transfer to private individuals if the transfer will benefit the public as a whole: Like common carriers that the public will benefit from. iv. Economic plans are not the same as benefitting a private individual. c. Just Compensation i. No taking is complete without just compensation ii. The compensation that must be paid is the fair market value of the property. 1. What an unrelated third party pay for the property from another unrelated party iii. Fair Market can be problematic 1. There are different ways to compute it 2. Outside of the personal worth to the current possessor/owner, 3.