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MATERIALS FOR
PROPERTY 1. Ehrlich,
Photocopied Assignments & Supplement (the “Supplement”) 2. Dukeminier, Property (7th ed). |
1. For Thursday, January 3:
a.
Read Supplement pages 1-9. Make sure you answer the questions on pages 7
and 9. If you don’t have time to get to
the Bookstore, you can read pages 1-9 here.
b. Read Dukeminier & Krier pages 729, 759-764 and 847-853.
2. For Tuesday, January 8:
a. Prepare a summary of last class.
b. Answer the following question:
i. Bob owned two adjacent lots, Lots A and B. Ten years ago Bob conveyed Lot A to Ann. The deed to Ann included a covenant “Ann promises on behalf of herself and her successors that Lot A will be used only for residential purposes. The benefit of this promise is intended to run to Bob and all successors of Lot B.” Ann then conveyed Lot A to Art but the deed from Ann to Art was defective. Art knew about the covenant. After 10 years, Art discovered the defect in his title and brought a quiet title action against Ann, asserting he has gained title by adverse possession. Art won the lawsuit and immediately began constructing a gas station. Last week, Bob sued Art, seeking to enforce the covenant. What argument could Art raise at common law to defend against enforcement of the covenant by Bob? Should the covenant be enforceable against Art for damages? For an injunction?
c. Covenants Running at Equity ("Equitable Servitudes"): Read the materials in Part B2 of the Assignments. Read the introduction to Tulk v. Moxhay at page 10 of the Supplement, then read the case at pages 854-856 and notes 1-6 following the case.
d. Implied Covenants and Servitudes: Read the materials in Part B3 of the Assignments. Read the introduction to Sanborn v. McLean at page 11 of the Supplement, then read the case at pages 859-862 and notes 1-4 following the case. Answer the following questions:
i. What elements must a plaintiff prove to show the existence of an implied reciprocal servitude by a developer?
ii. If there was an implied reciprocal servitude made by the developer, when did the servitude arise?
1. Dec 1892 (when the first deed containing a covenant was delivered)?
2. Sept 1893 (when 1st person purchased Lot 86?)
3. Around 1900 (after 51 or so purchasers had executed similar covenants)?
4. 1911 (when Mr. McLean purchased Lot 86)?
iii. Why is the case of Sanborn v. McLean problematical from a "notice" perspective? The case is not followed in modern states, such as California and Massachusetts. No rational developer, buyer, mortgage lender or title insurer would support the case today. Why not?
3. For Thursday, January 10:
a. The Requirement of "Touch and Concern": Read the materials in Part B4 of the Assignments up to & including Neponsit Property Owner's Assoc., Inc. v. Emigrant Industrial Bank at pages 864-871 and the notes following the case. In Neponsit, Prof. Bigelow proposes the following test for when a covenant or servitude “touches & concerns” land (see note 37):
i.
“If
the covenantor’s legal interest in land is rendered
less valuable by the covenant’s performance, then the burden of the covenant
satisfies the requirement that the covenant touches and concerns the land. If, on the other hand, the covenantee’s legal interest in land is rendered more
valuable by the covenant’s performance, then the benefit of the covenant
satisfies the requirement that the covenant touch and
concern land.”
1. As the book author points out, the test suffers from the problem of “circularity”. Does the test makes sense?
2. To
help focus on this issue, consider the following hypothetical: Ann owns Lots 1 & 2. She conveys Lot 2 to
Bob & promises in the deed: “I Ann, on behalf of myself, heirs, successors
and assigns of Lot 1 promise to pay Bob, his successors and assigns of Lot 2,
$5,000 per year.” Does this covenant
satisfy the Bigelow test? Is it the type
of covenant that should be binding on successors to Lot 1?
4.
For Tuesday, January 15: -- This is a lengthy
assignment, give yourself plenty of time.
a.
Review
Caullett v. Stanley Stillwell & Sons,
Inc. the Supplement at pages 12-16. Why was the court unwilling to
enforce the covenant against successors, even though the parties clearly
intended to bind successors.
b.
Answer, in writing, the questions in the handout “Hypotheticals – Covenants
& Servitudes.” There are copies
on-line: PDF Format or MSWord
Format.
You are permitted and encouraged to work in groups of up to 3
students.
i.
If preparing your
work on a computer, make sure you bring a hard copy to class.
ii.
Use your Student
I.D. number(s) to identify your work.
iii.
If you are going to
miss class you must hand in
this assignment before class begins by e-mail to jstallworth@cwsl.edu. If you email the assignment make sure you attach a file in Word, WordPerfect, PDF or Text
format.
iv.
If you work with
another student or two, submit a single answer with all of the Student ID numbers
c. Part B(5): Whitinsville Plaza, Inc. v. Kotseas at Supplement pages 17-23.
5.
6.