PROPERTY APRIL NOTES

April 1, 1999

Negative easements

Difference between equitable servitude and injunction - have to look at actual document to tell difference

Horizontal privity is not really tested very often in CA - only comes about when you want damages - in most cases, people go after injunction, and in which case horizontal privity does not come into play

Whoever is restricted by the easement, has the burden.

No privity at all with adverse possessors in common law

In order for burden to run, must be an estate of the same duration

Lawsuit defines burden or benefit - depends on lawsuit

Requirements for privity

• notice
• intent
• touch and concern

do not need horizontal privity for equitable servitude

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April 6, 1999

Servitudes

In California, use restriction language must be in each and every lot for it to be bound by the restriction.

Master/common plan - shows a specific intent to bind the whole subdivision

1. common grantor
2. restriction on part of the subdivision at the time sub division was created
3. notice - inquiry à character of use; record

master plan at the time?

If so, is the rest of the subdivision bound, if first lots bound, are subsequent purchaser on notice?

Is subsequent purchaser on notice?

Outline of how to answer these questions:

Is there a system of IRS (Implied reciprocal servitudes)?

Common grantor

Common scheme

Notice à at time lot divided from subdivision

If IRS, is subsequent purchaser bound?

Notice

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April 8, 1999

Can the burden run when the benefit is in gross? - yes if it is a utility company; NO

Third party beneficiary rule - if at time restriction is created, if both parties intended it to e for benefit of other's land, then the intended beneficiaries can sue to get it enforced

1. look at vagueness of terms (try to get out of covenant because the terms are vague)
2. touch and concern - opposite of a bright line rule
3. can the burden run when the benefit is in gross? NO

touch and concern - mutual, reciprocal obligations about use of land

1. is it residential or commercial?
2. Look to interpret terms - intent of drafters

Uses on exams sometimes: "single family purposes only"

Void as against public policy

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April 12, 1999

How do you get rid of servitudes / covenants?

Shelley v. Kraemer - private agreement to make a neighborhood racially segregated

State action v private action - question here was since it was a private agreement, and therefore did not violate the state laws

State action referred to as judicial enforcement

Five ways to attack covenants (and servitudes) and get rid of them:

1. void as against public policy
2. illegal because of statutory prohibition (example is Fair Housing Act of 1968)
3. changed circumstances (private - circumstances of community has changed; classic situation is where servitude as fallen into disuse)
4. abandonment / Waiver
5. touch and concern - at time restrictions was put in place

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April 20, 1999

Takings (usually by government)

Nor shall private property be taken for public use without just compensation - this is from the Fifth Amendment in the Constitution

• question here is what does "public use" mean?
• Government has power of imminent domain - what are the limits on that power?
• Public use has been interpreted by courts to mean for benefit of public

If for private use, cannot be taken at all for use by public - benefit of public

Limitation on power of imminent domain:

• Statute giving right of access for landlocked parcels was held unconstitutional (Texas case)

If taken for public use compensation must be paid

Substantive due process - Locknyer v. New York

Must balance public benefit v. extent of infringement on property rights

Public benefit extent of infringement on property rights

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April 22, 1999

More on takings

Strict scrutiny

Narrowly tailored to meet compelling state interest

Minimal scrutiny

Rational relationship between regulation and legitimate state interest

Substantial relationship

Permit condition ß à legitimate state interest

Rough proportionality

Legitimate state interest - falls within police powers; power to regulate public health, safety, welfare

Compelling state interest - ???

Must be an essential nexus between permit condition and legitimate state interest (also called a substantial relationship)

Must check to see if there is a "rough proportionality" between condition and interest.

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April 23, 1999

Exam review

Most likely there will be subparts and one big question

Single family

Townhouses - houses that are right next to each other. Individual fee simples

Condos - each owner owns own apartment - have interest in shared areas as tenants in common; individual ownership of unit

Co-ops - common in New York city. Have ownership interest in whole. Risks are greater than a condo. Greater screening of coop membership.

Apartments - landlord has fee simple interest; tenants have non-freehold interest

Neponsedt case:

e

• a bunch of fee simples
• single family residents with express covenants

Nahrstedt

• have CC&Rs
• express provisions
• condo board - can change and enforce restrictions

can CCRs be express or implied? Are usually express

question of privity of neighborhood association and homeowners; board has right to enforce, court views board as in privity; don’t have to worry about in gross or in appurtenant.

READ Nahrstedt and Neponsedt

benefit in gross - burden won't run - still GOOD law in most jurisdictions

Duty to pay money - this should trigger a touch and concern issue; also duty to clean, maintain, etc…

• if Neponsedt (neighborhood association) you ask does it touch and concern about each element
• Not an issue in Nahrstedt

To challenge this stuff ask if condition is reasonable

Public policy arguments - more important in Neponsedt situation

If you are trying to challenge validity of CCR it is reasonableness

Reasonableness does not apply when you are dealing with CCRs

Equitable services deal more with touch and concer

If condo - analyze under Narhstadt

If neighborhood association - analyze under Neponsitd

Abandonment of covenant - must show that the covenant is no longer of value

Policing board

Touch and concern - if it and deals with the land (not personal)

1. at time of creation v. time of enforcement
2. personal v. land (expressed in negative terms - usually touches and concerns)
3. public policy - one of the things to judge whether it touches and concerns
4. it enhanced market value at the benefit of the estates then touches and concerns (Nepon)

creation of easements and timing issues

creation of servitudes and privity issues

three ways of creating restrictions:

1. master plan
2. lot one is bound and all lots retained by grantor are simultaneously bound (two way arrow)
3. lot 1 is bound (one way arrow - lot 1 bound for benefit of subdivision and nothing else is bound)

In CA if grantor creates master plan AND records it, then all subsequent purchasers are held to have accepted the master plan when they buy in

All 15 lots previously sold, then grantor sells lot 16 with additional restriction. Question here is who can enforce that additional restriction?

• one argument is that no one can enforce it
• two ways you can enforce it: third party beneficiary jurisdiction; common plan - covenant is for benefit of all lots

different question: lot fifteen is sold with additional covenant. Lot 16 is the only one who can enforce it because 16 is the only one in privity. Imposing benefit on 15 for benefit of 16.

When lot 16 is sold, no one is in privity so the question is how to enforce covenant on lot 16?

• can fix this problem by setting up lot 15 owner as a straw.
• Covey lot 16 to lot 15, then have lot 15 convey to the new owner of lot 16
• Then lot 15 owner is in privity and can enforce covenants
• More lot owners you get for this straw, the more people that can sue 16

Also READ Sandborn case. - all of above deals with non Sandborn jurisdictions

Three more solutions:

1. Sanborn - looks at this in terms of existence of a common scheme and says at what point does a common scheme come into creation - if there was a master plan, and the lots were part of it, then everyone can sue everyone else

1. common grantor
2. common scheme (this can vary - written and recorded, brochure, not recorded)
3. when is there a common scheme - at the time benefited lot is sold

1. Third party beneficiary - if restrictions are for benefit of entire subdivision

1. common grantor
2. is there a common scheme (express written restriction) purpose is to say who can enforce
3. when is there a common scheme - at time burdened lot is sold

1. CA - simply, if you have a recorded master plan before lots are sold, then the lots are bound (master plan is expressed in writing, and recorded - if this is not the case, then not binding)

Sanborn - don't need an express written restriction - is there a restriction at all, and if so, who can enforce?

Review of past exam:

For implied easements very important as to TIMING of sale. In this exam she just said they were all sold on the same day. We don't know when exactly on that day the lots were sold.

Prior use - quasi easement -

Strict necessity or reasonable necessity for an easement created for benefit of grantor. This is what differs by jurisdiction

Jurisdictions are split on whether prior use can be benefit of grantor

Majority is that prior use CAN be for benefit of grantor

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April 27, 1999

Know rough proportionality test

Lucas case:

Deprivation of all economically viable use.

Balance extent of diminution v. nature/importance of public interest