W à A who does not record

W à J who DOES record

J à M M records Jà M deed

A records

J records

Who has good title?

Jà M deed is outside the chain of title - therefore it does not count for purposes of winning the race.

M would win over A in a notice JX but not a race-notice JX

What is shelter rule??

O à A

O à B

A records (at this point A wins race over B)

A sells to C valuable consideration / no notice of B (C wins in a notice jx)

B records

C records

What happens in a fight between B and C?

In race-notice jx, C wins (because of SHELTER rule - irrelevant that C had notice for this rule)

• because C is essentially standing in A's shoes (this is the shelter rule)

O à A who does not record

O à B who does not record

A records

B à C for valuable consideration (Shelter rule applies here)

In a notice JX B wins because he had no notice at time B bought from O

• C also wins over A because of Shelter rule

See problem in book on page 677!!!

To have protection of recording act must have:

• Valuable consideration
• Without notice

O à A

O à B

A records

B records

A à C

Notice JX - B wins

Race / notice - A wins because A recorded first; C also wins because of shelter rule

1 - sold with no restrictions

2 - residential use only

3 - residential use only

4 - residential use only

Read instructions very carefully

Statute of limitations in every exam

Make sure you remember instructions at beginning

Make sure you can tell the difference between all the statutes à race, race notice, notice

Taking and zoning issues put at end of answer

Start with IRS issue

IRS issue:

Is the nursery school a violation of the covenant?

Can Anton sue to enforce

Sanborn jx - ask if there is a scheme of IRS

• there might be IRS, and if there are then A would have ability to sue D, but because there is no evidence at time lot one is sold (no master plan), therefore absolutely no grounds to apply Sandborn; end of discussion.
• Makes all the privity reciprocal between the lots in a subdivision

Now that raises question of third party beneficiary theory:

• there is no privity, no ability to sue
• at the time lot four is sold, still nothing about a master plan, but it should be implied from looking at other lots. Have now at least an argument that the four houses are part of intended development. Still have same problems with actual notice of a common scheme. But the argument is worth raising even though there is not much basis to sue on TPB theory.
• ISSUE: No cases for a lot to be an intended beneficiary at time lot was sold if there was no master plan/common scheme at time lot one was sold - answer: unlikely that lot one would be able to sue on that issue

What if in CA? Answer: CA requires privity, there is no privity, so lot one cannot sue.

Does home daycare violate covenant?

-

Privity issue: hard to know if anyone can sue to enforce restrictions because Maxine was not in privity with any of the other ones. Because at time lot 4 was sold, there were no other lots that Maxine owned.

1. Can you convey a fee simple interest and create an easement by someone who is not party to the transaction? In traditional common law jurisdiction may be unenforceable, in CA does not matter. Jurisdictions are split if this can be done in one deed. SEE: First Church of Christ v. Willard
2. Is it an easement? Does not fit within traditional categories, but in CA seems to be like negative easement of view.
3. Can it be enforced as a covenant or servitude? Now you get into all the privity questions. Horizontal privity does not exist because no common grantor so covenant can not apply.

• equitable servitude - lot one is intended beneficiary; is a question of intent - they used wrong language, but you can argue that perpetual means there is intent that it lasts forever
• touch and concern - if multiple choice, choose this as weakest answer. ANSWER: designed to be a relationship between ; Anton trying to protect his land, strong case for touch and concern; relationship between two plots of land, planning in terms of construction, this is the type of stuff that is touch and concern. Stuff that is personal to someone, and does not have much to do with land use, then unlikely to touch and concern.

Nuisance issue:

1. is a nursery school inherent nuisance? Probably not
2. Is the nursery school run in such a way that it constitutes a nuisance?
3. Is interference with a solar collector a nuisance?

(location, conduct, interference with solar collector)

If not a nuisance, then taking arguments come in.

Takings - look at scope of ordinance.

1. stick in the bundle analysis - is the right to operate a nursery school, is taking that away a taking? Argue that the right (from LUCAS) to operate a nursery school a discreet element in property rights. Compare with HADACHECK (brick kiln case)

Fact that it has already been in operation, fact that she put in investment which ties in to reliance on ability to run school. Strengthens stick in bundle argument.

2. nuisance control measures - was this a nuisance before the area was rezoned? Probably not. Not automatically okay to wipe it out of existence. Set up nuisance argument to set up takings argument.

If you have an existing use, and then zoned out of use, that is a taking. Have to allow the owner of the property to realize the benefit of their investment.

Easement

• whether express easement can be enforced, (notice questions, including inquiry notice)
• if not easement by prescription (permissive)
• if not, is there an estoppel issue (weak argument in this case
• under warranty deed à clearly applies to there being an easement that buyer does not know about. SEE TAPE Majority rule - does not matter if buyer knows. That affects award of damages.

• recording acts
• race notice
• notice
• race doctrine
• IRS (common scheme, master plan)
• Sanborn jurisdictions
• Third party beneficiary
• Covenants
• Equitable servitudes
• Nuisance
• Takings (not much zoning stuff this year)

CASES MENTIONED:

• Hadacheck
• Lucas
• Sanborn
• Nollan
• Dollan
• First Church of Christ v. Willard