Property II – Questions & Answers
was going over your Spring 2002 Exam and model answer that is posted on the library
web-site. The question asks about whether
or not P will be successful in an action to enjoin the defendants from building
retail stores. One of the lots in
question was lot 2 the fact pattern stated, On *May 1, 2000*, *Lot 2 *was sold
to *Betty* and her deed contained the following restriction: "Betty
promises to use
Answer: Betty made an express promise, on behalf of herself
and her successors, to use
Question: Why doesn’t the answer to the 2002 exam discuss the benefit running to Peter?
Answer: In the model answer the introduction makes clear that the writer will be discussing whether each lot is burdened, and then whether the benefit runs to Peter. Here are excerpts from the Model Answer:
succeed Peter must show that Lot 1, Lot 2 and
Running of the Benefit: When Betty made her promise to Developer, Developer owned the remaining 98 lots so all of those lots benefitted from the promise. As a successor to the original benefitted party (Developer), Peter will have to show that the benefit also runs with the land. This will be no problem since the same elements must be satisfied, with the exception of notice. The same would be true with respect to Clara.
Does that answer your question?
Question: I got another lease question for you... A and B rents an apt from L, month to month, as co-tenants. B moves out without giving written notice. L makes A pay all of the rent. A pays the entire rent for the apt for 3 months. Until A found a new co-tenant. Can A sue B for half of the 3 months of rent he paid? Thanks. My understanding is that he can.
Answer: What’s the legal theory on which A is suing B?
Question: I had not thought about that; and come to think of it, I do not think there is one, unless there was a K between A and B. It would seem the landlord is the only one that can go after B, since B had a lease agreement with the landlord. But it would appear that A is stuck with paying the whole rent since he was a co-tenant. Does this seem correct to you?
Answer: Ahhhh. You can see why roommates should have a clear agreement between them regarding the lease obligations. Even in the absence of an express agreement, I think that A can probably come up with some theory such as implied contract or, perhaps, third party beneficiary. However, even if A has an enforceable cause of action, A would be entitled to only one month’s share of the rent from B since the lease is a month-to-month and B can terminate his interest at any time on 30 days notice.
Question: I had a question regarding CCR's and Administrative Relief. Suppose A wanted to open a day care center but there is a CCR which restricts the houses in the area to single- family residential purposes. A then seeks to get a Conditional Use Permit from the city and the City grants it. Can the CC&R be enforced against A? I believe that the CUP should prevail, but I cannot come up with a coherent reason.
Answer: This is the whole point of CC&R’s. They restrict the burdened land MORE than the zoning does.
Question: I was reviewing the holdover tenants slides and a question arose regarding the amount of time a landlord can give a tenant to renew a lease after the landlord has elected to hold the tenant as a tenancy at sufferance. Is there a grace period from the time landlord has made this election to the time he actually evicts the tenant, wherein the tenant can renew his lease?
Answer: Once the L has elected to evict the tenant, the tenant has no rights. It’s up to the L to bring an unlawful detainer action.
When the CQE is breached because of a partial eviction, T's remedies are to:
1. Terminate and Move out OR
2. Stay and sue for damages
If T stays and sues for damages, his option is to keep paying rent and then sue for damages.
Question: 1. Can T also stop paying rent and use the breach of CQE as a defense, and THEN offset the damages. 2. On slide 7 from 3/19/09, it says that "Upon breach of CQE the obligation to pay rent ceases and L cannot collect rent." Does this mean that L cannot require T to pay rent but that T can choose to pay rent and then sue for damages.
Answer: The case law seems to support the idea that the L can't bring an unlawful detainer action for nonpayment of rent if the CQE has been breached. It is sometimes said that the L can't "apportion his wrong" by partially evicting the tenant then expecting to be paid the rent, even partial rent. Therefore, the L can't use the unlawful detainer proceeding because the L can't assert that the rent is not being paid. L may be limited to bringing a normal type of civil proceeding for the fmrv of the apartment.
Question: I had a question regarding the 2003 Summer Finals essay question. The facts stipulate that Angela conveyed a deed with a covenant to Bob where Lot B was the only bound property because of some recording error. I am getting confused in identifying which party is the burdened and benefitted party. The way I’m understanding it is that Bob should be the burdened party because his property is the one bound, whereas Angela should be the benefitted party, but your model answers says otherwise. Should I instead assume that since Angela conveyed the deed to Bob, this automatically renders her the burdened party? Or is this a faulty approach?
Answer: The fact pattern states that the deed to Bob contains the following clause:
"Bob promises on behalf of himself, heirs, successors and assigns, that Parcel B will be used only for single family residential use. The benefit and burden of this promise shall run to all successors of Lots A and B, respectively."
The deed was supposed to contain the following clause but, due to an error in drafting, the clause was omitted:
"and Angela promises on behalf of herself, heirs, successors and assigns, that Parcel A will be used only for single family residential use. The benefit and burden of this promise shall run to all successors of Lots B and A, respectively."
In the first clause Bob is promising to bind Parcel B and is, therefore, the burdened party.
In the second clause, Ann is promising to bind Parcel A and is, therefore, the burdened party
Question: Further, in regards to the Spring 2002 essay, why shouldn’t we analyze whether the benefit runs to Peter with respect to the issue of Peter v. Betty? Is it because Betty mades an express promise, and as such it binds the developer and subsequent owners, here Peter?
Answer: You should analyze whether the benefit runs to Peter. The response on file addresses this issue but only after all the burden questions are resolved.
Question: If X has invested a great deal of money and time preparing to build a condominium project and the city rezones the area right when X is getting ready to get his permits, X must exhaust administrative remedies before asserting a regulatory taking. If X's activities rise to the level of a vested use but he has not begun to build, can he apply for and recieve a non-confoming use as an administrative remedy?
Answer: Of course. The landowner should and must first try for a non-conforming use. If that's denied (unlikely in your scenario), the landowner would pursue a claim of unconstitutional regulatory taking of private property without compensation.
Question: I have been going over the Penn Central Balancing Test and have found myself getting into heated debates with salim about Character of Govt Action factor. We realize that we want to look at whether the regulation is allocational or acquisitional, but we started arguing once we got to PA Northwestern. This case is about N/C uses and interference with DIBE but in your slides you said the courts could of decided this by using the Balancing Test. Basically my question is ...... was the govt. action is PA Northwestern allocational or acquisitional?
Answer: The dissent in the case points out that there was no
need to “announce” a new rule in
Question: Under CA and current
Answer: We talked about this in class. Remember when we distinguished Hannan v. Dusch and a modern residential lease? See the slides for those classes (3/19 and 3/20).
Question: I have a question about Reste Realty. This was a case about a commercial lease. Here the court found that the Plaintiff breached the express covenant of quiet enjoyment (CQE) under the lease through constructive eviction. The court found that L had a duty to act and that there was an omission of that duty. My question is whether this duty/promise needs to be express and in writing as part of the lease, or can it simply be an enforceable verbal promise. It seems like the latter is acceptable. In the case, terminating a commercial lease based on L's breach of IWH was not possible. The court then bases the duty on covenant between L and T, which I understood was verbal. The covenant to remedy the flooding problem arose from the promise by Donigian (acting as L's agent) to remedy which L relied on as consideration to sign on to a new 5-year lease. Is this correct?
Answer: This is purely a contracts question. The court was willing to go outside of the written contract and consider other evidence to show the existence of a promise by the landlord to keep the property free of water damage. There was overwhelming evidence that part of the consideration for the second lease was the L’s promise to fix the problem.
Question: I have another quick question for you: what about setback restrictions that are in violation- does this affect marketable title? Does the answer change if seller discloses this? I wouldn't think this would hamper marketable title because this is similar to zoning. I had a question regarding Duty to Repair/Maintain. Is there an implied duty imposed on the L under modern law? I am not sure how to categorize duty to repair.
It overlaps with CQE and Warranty of Habitability (the remedies part)?
Answer: The answer is no. Title and zoning are unrelated. If you look at the contracts of sale in Dukeminier and the Supplement, you’ll see that these two matters are handled in different parts of the contracts.
Question: Can noise (specifically, a club rented out on the first floor of an apartment building who, despite promises to keep it down, continually has music "played at a volume approaching that of departing jet engines") constitute breach of quiet enjoyment? I feel like the better argument would be a breach of the warranty of habitability, but the question only calls for whether or not it was a breach of CQE. Also, they define the breach as "so egregious as to seriously interfere with the beneficial enjoyment of the property or render the property substantially unsuitable for the purposes for which they were leased." Your slides say, "caused a substantial and grave interference with T's possessory rights." Your definition of the element seems more narrow to me. Would you agree with the first definition?
Answer: For the T to terminate, there must be a breach of some covenant by the L. If the L has not promised to keep other tenants quiet, then there has been no breach of the CQE. Can you see why? You should be able to figure it out. Go back to the slides for Constructive Eviction.
Question: So, I am reading that there is a slight modern trend to allow aesthetic zoning ordinances, so as to describe them as to improve the public spiritual well being. Additionally, the prohibited use would decrease property values. This seems to pass our "singe cogent reason" test. So, for our class, does the legislature have the power to pass aesthetic zoning ordinances? In the hypo, the example is that neighbors were required to paint doors a conforming color. My supplement found that even under this modern trend, that would not be for the furtherance of PHS&W, nor would it have any effect on property values, and thus there would not be a single cogent reason. Do you agree?
Answer: No, I don’t really agree. The courts shouldn’t be stepping in and replacing the determination of the legislature regarding whether aesthetic zoning is, or is not, in the PHS&W. After all, the legislature is in a much better position to make this determination, following public hearings, studies, etc. The legislature is directly responsive to the people. For all the reasons we talked about, the courts tend to stick to a PLV. However, if the particular regulation has no possible PHS&W explanation, well, then it’s a deprivation of property without due process. I find it hard to believe that a municipality can’t come up with a cogent reason for uniform color schemes. They’re used all the time to enhance the value of private communities.
Question: What, then, would be example of a regulation which does not have a single cogent reason? I know we touched on it in class, but I can't find a slide which has an example of a regulation where you wouldn't be able to come up with a single cogent reason.
Answer: It’s hard to come up with a good example. Bribery of the City Council by a developer is certainly a good case. That’s why there are virtually no cases finding “no cogent reasons.” Don’t forget that, sometimes, courts may drop the PLV (such as in cases of spot zoning).
Question: I am trying to clear up some blurry conceptual points in Crechales. In the case, L elected to treat T as a tenant at sufferance on February 6th. By electing this option, he then has used up any rights for unilateral election and therefore could not change his mind. But then, by accepting the check for February to March, L and T have bilaterally agreed to create a new estate for years. My question is what happened when the February-to-March estate for years expired. It seems to me that T offered once again a new estate for years from March to April, which then L rejected on April 6th by refusing to accept the check because it was for final payment. Indeed there was no new bilateral agreement created. It also seems to me that when the February-to-March estate for years terminated on March 6th, T again was holding over and L is given a brand new set of election to evict or treat T as a periodic tenant. Is this analysis correct? Assuming that a brand new set of unilateral election was afforded to L on March 6th, L did neither of the two options. T stayed on the premises until April 17th without L ever evicting him. The only communication T got from L before T left the premises was L’s refusal to accept the check on April 6th and L’s refusal to inventory the building on April 7th. Since doing nothing is not an option, does failure to evict here indicate an intent to treat T as a Periodic Tenant?
Answer: Very good point. Yes, doing nothing is not an option. When the T moved on on April 7th, L had not yet made an election. Note that in the case, the landlord did not argue a holdover when the new estate for years terminated on March 6th. L relied on a periodic tenancy beginning on Feb. 6th and lost on that argument.
Question: In a situation where the rent according to the lease is $1000 but the FMRV is $1200, I understand that L has no damages in the event of T leaving because he can find a new T to come in and pay the FMRV (which is a bonus to L). What if the L is making reasonable efforts and can't find a new T? Does L still get $0 or can L ask for money that he would have gotten whether it was the $1000 or $1200? I just don't understand why L is so disadvantaged and missing out on the money that he reasonably expected to be bringing in when T is the wrongdoer.
Answer: I think you’re asking about the time period it takes to get a new tenant. If the property is really worth $1,200 per month, it shouldn’t take too long to find a new tenant. Let’s say it takes 3 weeks. L is entitled for his/her loss of three weeks RENT (not FMRV), since that’s the damage suffered by L. Note that if a reasonable L could find a new tenant in 3 weeks and this particular landlord takes 5 weeks, he/she will still only collect 3 weeks rent for the vacancy period.
Question: I have a question about partial actual eviction: If T is padlocked out of a room and then T doesn’t pay any rent- (but, I know that T can’t withhold rent, but in my hypo he does). At the point of the actual partial eviction is the lease terminated? And therefore, T will have to pay FMRV ( and can't be unjustly enriched) and L can’t sue for rent? Is that correct?
Answer: The general rule seems to be that T is not obligated to pay RENT since the covenant of quiet enjoyment has been breached and “the landlord cannot apportion his wrong.” However, the T is obligated to pay FMRV for the apartment. The way it would probably shake out is T withholds the rent, L sues for unlawful detainer for nonpayment of RENT. The unlawful detainer will be dismissed, since L is not entitled to RENT. L would then sue for FMRV. Obviously, this places a strong incentive on L to unlock the door or fix the partial eviction.
Question: In Lohmeyer v. Bower, the violation of the restrictive covenant (the house only being one story) did not make the title unmarketable? I understand that the zoning ordinance has nothing to do with the covenant to provide marketable title, but a violation of a restrictive covenant which is in the deed itself does not render the title unmarketable? Why not?
Answer: It does make the title less than marketable BUT in the contract, Dr. Lohmeyer AGREED to accept title of that kind.
Question: If Ann owns 100 lots, files CC&R's on all the lot's, then later begins to convey the lots, is there horizontal previty between Ann and subsequent owners? It seems like the answer would be no because the covenant did not arise at the instant the estate was passed.
Answer: The horizontal privity requirement refers to the privity of estate at the time of creation of the covenants. When a landowner files CC&R’s, the horizontal privity requirement is satisfied, since the landowner owns the fee to all of the lots at the time. Vertical privity is the issue when the landowner then conveys any interest in any of the lots to a successor.
Question: I am reviewing the answer posted online for the hypothetical, and I'm just trying to figure it out. The landlord, to recover rent, would only sue T3 for the rent from 1939-1958 if T1 had no assets and the landlord couldn't recover from T1, right? If T1 didn't want to pay for all of the rent, could he indemnify or join T3? Are they jointly or severally liable? Just to be clear, the other tenants are only liable for the time they actually were in previty of estate (the time they sublette) b/c they didn't assume the contractual obligations of the rent, correct?
Answer: T3 is primarily liable so, as a matter of Civil Procedure, L will sue both T3 and T1. T1 will cross-claim against T3 in the event that L recovers against T1, T1 will obtain a judgment against T3 for reimbursement.
Question: I thought I had a solid grasp of the concept of holdover tenants, but in reviewing the slides, I may have confused myself. Could you please clarify... Ex. L says to T (who's lease has expired): "I’m electing to treat you as a tenant at sufferance, get out". Then, T tenders check for “The months of February & March only.” L accepts. I thought that as soon as the L chooses 1 of his 2 options, that decision is final. So, if he chooses to treat the T has a tenant at sufferance and evict that T--thats it, he can't go back and accept the check. And if this new bilateral agreement is allowed, I guess my next question would be: At what point does the L reach the "pt of no return"? When he officially files the unlawful detainer action? On the other hand, I understand that if the T approaches L and offers to pay him for the next 2 months only, an entirely new leasehold estate is created (estate for years).
Answer: The original lease has been terminated. The parties are free after that to agree to a new lease. For instance, they could sign a new lease for just two months, February and March. When the tenant makes an offer by presenting the check for February & March and the landlord accepts, it’s a completely new estate for years for the months of February and March. It’s unrelated to the termination of the prior lease.
Question: 1. The remedy for partial actual eviction. Tenant leases a three bedroom Apt. from Landlord for $2000. Landlord padlocks one room. FMV of a 3 BDR apt. with one padlocked room is $1500/mo. Tenant can terminate lease and move out, plus sue for damages, with no further obligation for rent. His damages would be 500/mo for however many months he didn't have the room. If Tenant stays, and pays only $1500/month what happens? (LL can evict, I assume--this counts as "withholding rent?")
Answer: The universal rule is that L cannot “apportion his wrong.” Theoretically, L cannot sue for rent or bring an action for nonpayment of rent. However, L can sue for the FMRV of the property. Whether the average judge would follow this rule is not clear, despite widespread agreement in the treatises.
Question: 2. The remedy for partial constructive eviction. My understanding was that, although it doesn't make sense, there is no remedy for "partial constructive eviction" unless it rises to the level of Breach of K, in which case you would treat it as Breach of K. In tutoring, the students were very sure that the remedy is "the same as for partial actual eviction." Considering how badly outvoted I was, I presumed them to be correct--whats the remedy for partial constructive eviction?
Answer: There seems to be some statements in some student treatises that there is no remedy for a partial constructive eviction (although there is a remedy for a full constructive eviction). Such a statement seems ill-advised. Eviction is eviction, actual or partial, actual or constructive. The remedies should be the same. We’ve seen that: actual notice = constructive notice; actual possession = constructive possession. The whole point of the term “constructive” is that we will legally deem it to be the equivalent of the actual event. If that’s true, then the impact should be the same as the actual event. There is no logical support for the idea that we should treat a partial constructive eviction any differently than actual partial eviction. Why would we do that? Either way there’s been a partial eviction.
Question: 3. Slight variations from your March 9 hypo... Landlord and Tenant sign a 2 year lease at $1000/mo. FMV is $900/mo. Tenant occupies Jan, Feb, and March but pays no rent. Judgment at the end of May. If LL "actually" relets for $1200/mo in June through the end of the lease: Changes nothing. What LL actually did irrelevant.
Answer: The fact that L relet for $1200 is evidence of FMRV but it is not determinative. FMRV is FMRV. L is going to have a very rough time showing FMRV of $900 when L rented the apartment for $1,200.
Question: If T can only prove that the FMRV is $900 per month, then that’s the FMRV. The statutes require that we use FMRV in making our computations. Any other rule would mean that L’s damages are contingent on how good, or bad, L is as a negotiator. The question is what a REASONABLE L could have leased the premises for. If FMV was 1200 instead of 900: Landlord still gets 1200 for April and May, but 0 in damages for the remaining months.
Answer: L is entitled only to damages once T abandons.
Question: If Landlord waited until entire lease term was over then sued for back rent: changes nothing because he has duty to mitigate.
Question: Quick question about partial actual eviction. If the tenant stays in the apartment what is the proper remedy? Should the tenant continue to pay full rent and then sue the landlord for a return of the difference between rent and FMV? Or can the tenant merely reduce payments to the FMV and when the landlord brings an unlawful detainer action, the tenant can assert that the landlord terminated the lease by his breach, therefore, "rent" is no longer due, just the FMV? Does this make sense? I am confused.
Answer: I believe that both remedies are available to tenants. The eviction is a breach of the covenant of quiet enjoyment. The T can:
Terminate & move out & sue for damages.
Stay, pay the rent in full and sue for damages.
Stay, pay the FMRV and raise partial constructive eviction if L brings an unlawful detainer.
Every jurisdiction holds that L is not entitled to rent in the case of a partial eviction. The L cannot “apportion his wrong.”
Question: I also had a question regarding the hypothetical from today about the "$250 cleaning policy." Would it have made a difference if the policy was stated in the lease that was signed by the T? So then, even if a T returned the apt as clean as it was, he could still owe the $250?
Answer: The statute has a clear answer to your question. See 1950.5(b)(3). Statutory edicts cannot be undone by contract.
Question: I am still a bit confused about how the Lucas court came to its decision. Couldn't it be argued that since the law was enacted to protect erosion and destruction of the islands it was in furtherance of public health, safety, and welfare. Therefore, even if it was a 100% devaluation it would not be a taking because it would fail the Penn Central test.
Answer: All legislation must be in furtherance of the PHS&W or it will be invalid under the due process clause. So, the fact that it’s in furtherance of the PHS&W does not resolve the taking issue. That’s a separate inquiry.
Question: It seems to me that what this case really didn’t create a new test, it merely shifts the burden of proof when evaluating under the Penn Central test. Is that correct?
Answer: Not exactly. It shifts the burden of proof to look at factors (such as nuisance law and property expectations) that are similar to the Penn Central balancing factors.
Question: 1. In HFH, we talked about them playing the "speculation game". I understood this to mean that they wanted their cake and wanted to eat it too. They wanted the commercial zoning so that their shopping center could flourish, but also wanted the residential zoning around their parcel so that their center would have patrons. Is this correct?
Answer: Yes, that is correct. The court stated: “Plaintiffs in this case therefore find themselves in a somewhat uncomfortable position: they wish to reap the benefit in the form of higher market values of their land, of the restrictive zoning on other properties, but do not wish to bear the reciprocal burden of such zoning when it applies to their property.”
Question: 2. In re: to pre-condemnation - I understand pre-condemnation to mean "a public agency may not use a zoning ordinance to evade the requirement that the state acquire property which it uses for public purposes via compensation". I think the key here is the government’s evasion or delay in solidifying the ordinance, which essentially puts a hold on the owner's use of the land. Is this correct?
Answer: Yes, that is correct. The key to “pre-condemnation” is in footnote 14. The court points out that in all 3 of those cases, the cities were actually trying to acquire the land for public purposes but avoiding the necessity of actually buying the land (at least for a few years).
Question: My question is from this portion of the model
answer: "Notice: The facts state that the CC&R's
were recorded by Developer while
Developer owned Lot 3 and, therefore, are in Clara's chain of title. She
is held to be on constructive notice of the CC&R's
whether she actually knew about them or not, because all purchasers of land
should check the recording office for exactly these types of
Answer: Peter is trying to establish that Clara is bound by the covenant. Clara never made an express promise (her predecessor, Developer, made the promise). To enforce the burden against Clara, Peter must show that Clara had actual or constructive notice of the promise made by her predecessor.
Question: I was thinking of a hypothetical that has confused me. If a developer creates a huge development for single family home use and all of the necessary CC&R's were filed. And a private owner buys up enough lots to build a small chip and putt course. If the course was well maintained and increased the value of the other lots in the development, would this mean that the covenant restricting the land for single value land use still touch and concern the land? It seems that a single family restriction on the other lots still makes sense. Would the court modify the restriction to permit the golf course?
Answer: I think you’re raising a waiver argument. Regardless of the impact on value, the
surrounding neighbors seem to have waived the use. Under
Question: I wanted to clarify that I understood the following correctly: Tulk v. Moxhay: rejected the requirement of horizontal previty in courts of equity Neponsit: rejected the requirement of all previty in courts of law Modern courts that follow the Restatement as well as CA courts: do not require previty at all.
Answer: Yes, Tulk v. Moxhay: rejected the requirement of horizontal previty of estate in courts of equity as a requirement for the running of the burden of the covenant. Neponsit: rejected the requirement of VERTICAL previty in courts of law as a requirement for the running of the benefit. Modern courts (including CA) and the Restatement do not require previty of estate (horizontal or vertical) as a requirement for seeking the legal remedy of damages. There simply is no logical reason to do so.
Question: I have a Q about the doctrine of marketable title: It is implied in every K unless the parties K around it, as did Lohmeyer and Bower. The one thing that I am confused about is why does it matter what S is promising to deliver in the K if once the deed is delivered the K, performed or not, is extinguished and only what is in the deed binds the parties??
Answer: It doesn't matter after the deed is delivery but matters very much during the contract period. The issue in Bower was whether or not the buyer was obligated to pay the purchase price under the contract. Suppose the buyer promised to pay $500,000 for the house if seller delivered "marketable title, subject to any easements or CC&R's of record." Prior to the closing, the buyer discovers that there is a 40 foot wide easement for drainage purposes over the surface of the parcel. Does the buyer have to pay $500,000? The answer is yes, since the seller has fully performed the seller's obligation to deliver "marketable title, subject to any easements or CC&R's of record." Can you see why signing such a contract would be imprudent? The buyer should have insisted that the contract state: "marketable title, subject to any easements or CC&R's of record, provided however that buyer shall have 3 weeks to review and approve any easements or CC&R's."
Question: Tenant's remedies under warrant of habitability -- they can stay and sue for damages, terminate and leave without liability for rent, or reduce rent to FMRV. when we say "stay and sue for damages" are we saying they stay and don't pay rent and then the landlord has to bring a U.D. action? or does it mean stay and pay rent and then sue for the difference in value?
Answer: If the tenants stay and pay the rent in full, then the L can't evict them. They can bring an action in small claims court for L's breach. So, the tenants can "stay, pay the rent, and sue for damages." Get it?
A) Will the covenant not run because it fails the notice element?
We didn't have time to really dig into
"chain of title" questions and what a reasonable search of the title
records would reveal. For purposes of
discussion let's assume Ann owns 100 lots and conveys Lot 21 to Bob and, in
that deed, promises Bob to use the retained land for residential purposes. When
That's why developers file CC&R's while they still own all of the lots -- so it will show up in the chain of title for all of the lots.
Question: B) What does Ann do if she wants to be sure the covenant runs from owner to owner without the grantor having to give actual notice?
before conveying to
C) If this was a
common scheme of residential development that for some reason did not have CC&R's, could
Ahhh. This is the problem with Sanborn v.
Maclean. THERE CAN'T BE NOTICE OF AN
IMPLIED COVENANT. By definition, you could search every title record for every
lot in the
Question: 1. What happens if a deed describes only the land and not the house?
Is the deed invalid?
typically describe the boundaries of the real property. Improvements are
appurtenances and fixtures and are part of the real estate. It's not unusual for deeds to state: "I hereby grant
Question: 2. What if a deed is stolen then recorded? The person who stole the deed then sells it to a purchaser who has no actual or constructive notice. Is this presumptive delivery even though the true owner did not hand it to the grantee?
Answer: No, it is not delivery of any kind. A forged or stolen deed is void.
Answer: Suppose there are 100 ORIGINAL owners who all promise to use their land for residential purposes. Owners 44 & 45 build churches at the intersections of major roads and none of the other owners object. Owner 46 then tries to build a church at the same, or similar, intersection. The other residents bring an action seeking an injunction. Does this seem like a good case for waiver? It really doesn't matter whether the landowners are original or successor owners. The question in waiver cases is whether the parties seeking to enforce the benefit have waived these kinds of uses in these kinds of locations.
Question: I was talking with another student about the implied cov of QE and we kept disagreeing about one thing. At CL, the only way a T could stop paying rent was if the L breached the cov of QE. the T had to prove that L breached 1. promise that T has legal right to possession, such that T won't be "ousted" by someone w/superior title or 2. promise that L will not evict T by actual(change locks, drag T out) or constructive eviction. the argument comes in about the elements of constructive eviction. I thought that elements of constructive eviction are 1. L acts or omits to act(when L has a duty to act) 2. act or omission causes a serious, grave, permanent, and substantial interference w/Ts possessory rights such as to equal an actual eviction 3. T leaves w/in a reasonable time. we disagree over element 1. I understood that "when L has a duty to act" meant that L had to agree to keep the premises in good condition as a covenant in the lease rather than referring to a general duty not to evict(actual or constructive). If L omitted to do something that caused serious, grave, and permanent substantial interference to equal actual eviction, but did not have a duty to act, coming from a covenant in the lease, T can not prove constructive eviction. is this correct?
Answer: You are correct. For there to be a constructive eviction based on an OMISSION by L, you would have to show a duty by L to act. Prior to the 1970's, this would require an express promise by the L to keep the premises in good repair. More recently there is an implied covenant in residential leases to keep the property habitable. For there to be a breach of the C.Q.E. based on L's omission to act, there must be some affirmative obligation (express or implied) for the L to take action. The only implied obligation is the warranty of habitability.
Question: LL leases an apartment to T1 for $1,000 per month. T1 assigns the apartment to T2 for $3,000 per month with out disclosing what the rent payment to LL is. Exact grant is "To T2 all my interest in apartment for $3,000 per month for the term of 10 months. This is NOT a sublease. T2 does NOT assume the contract." T2 pays $3,000 per month by check to T1 and T1 pays $1,000 of that $3,000 to LL. The term is 10 months. If the house burn down how much is T2 liable for?
a. $30,000 ($3,000x10)
b. $20,000 (($3,000-$1,000)x10)
Answer: I'm a little confused by this. There can't be an assignment for just a part of the lease term. If the PRIMARY lease term has 11 months remaining and there is an "assignment" for 10 months, then the "assignment" is really a sub-lease, regardless of what the parties call it. An "assignment" for less than the full remainder of the term of the primary lease is, by definition, a sublease, since the intention of the parties is to carve out a lesser estate. If, on the other hand, the parties are transferring the entire lease (the primary lease has 10 months remaining and all of that remaining term is assigned), then it's an assignment.
if an Assignment: T2 is liable to L for the
if a Sublease: T2 owes nothing to L,
ever. There is no contractual nor estate
relationship between them. T2 owes
$3,000 per month
Question: To make my question a bit more clear, we can change the Hypo a bit. Everything is the same, except T1 leased the apartment in a down spiraling market for $1,000 per month. T1 assigns to T2 the interest for only $500 per month. (Assume that T2 protects him self with contractual obligations making T1 liable to T2 if he fails to pay full rent to LL.) If the house burns down, what, if anything does T2 owe T1? $500 per Month? Nothing?
Answer: Nothing changes. The answer remains the same, just the amounts change. See above.
Question: Finally, I was wondering if I am correct about the following covenants. Hypo. LL leases to T1. T1 sublease to T2.
1. T2 can sue T1 for breach of Warranty of habitability.
Answer: Yes, of course. Every residential lease has the implied warranty of habitability. Imagine that LL leased a 100 unit apartment building to T1 for 40 years. T2 then "sub" leases the apartments to tenants. Why wouldn't there be a W.H.?
Question: 2. T1 can sue LL under derivative liability for breach of Warranty of habitability.
Answer: I don't follow this question. Using the above example (40 year lease of 100 unit apartment building), what's the legal theory that LL has liability to T2? Even if it's a single apartment, what legal theory are you using to assert that LL has some legal obligations to T2 (someone LL has never met, never contracted with, and who has not taken possession of the estate that LL transferred to T1).
Question: Hypo. LL leases to T1. T1 assigns to T2.
1. T2 can NOT sue T1 for breach of Warranty of habitability.
Answer: Incorrect, see above.
Question: 2. T1 can NOT sue LL for breach of Warranty of habitability even if he is not in possession.
Answer: Incorrect. What's your thinking here?
Question: Will we need to have the SD municipal/civil codes in our cheat sheet or do we not need them because an alternative will be provided in the exam?
Answer: You don't need to memorize the statutes. They are examples of how modern states address certain issues such as Unlawful Detainers, mitigation of damages, statutory short form deeds and other matters. You should understand the concepts behind the statutes but you don't need to memorize them.
I am somewhat confused w/the concepts of
Constructive Eviction w/in the CQE and the Implied Warranty of Habitability.
Here is little hypo to illustrate my confusion. Suppose that the electricity is
shut off in T's apt b/c of some failure on the part of the L. If the L does not take the steps to fix the
problem and T is forced to move out, has L breached the CQE
Answer: Yes, both the CQE and the W.H. have been breached. In addition, since L is obligated to maintain the electricity, L is also in material breach of the lease. Thus, T has 3 different legal theories for terminating the lease, moving out and suing for damages.
Question: Will we need to have the SD municipal/civil codes in our cheat sheet or do we not need them because an alternative will be provided in the exam?
Answer: You don't need to memorize the statutes. They are examples of how modern states address certain issues such as Unlawful Detainer’s, mitigation of damages, statutory short form deeds and other matters. You should understand the concepts behind the statutes but you don't need to memorize them.
Question: I am somewhat confused
w/the concepts of Constructive Eviction w/in the CQE and the Implied Warranty
of Habitability. Here is little hypo to illustrate my confusion. Suppose that
the electricity is shut off in T's apt b/c of some failure on the part of the
L. If the L does not take the steps to
fix the problem and T is forced to move out, has L breached the CQE
Answer: Yes, both the CQE and the W.H. have been breached. In addition, since L is obligated to maintain the electricity, L is also in material breach of the lease. Thus, T has 3 different legal theories for terminating the lease, moving out and suing for damages.
Question: Previty of Estate and Adverse Possession: So, when it comes to real covenants, at common law, adverse possession would defeat vertical previty, therefore adverse possessors could not be bound by, or enforce real covenants, however, since modern jurisdictions do not require previty, adverse possessors could be bound by, and enforce covenants. With equitable servitudes, A/P never prevented a adverse possessor from enforcing, or being bound to a servitude, because there is no requirement for previty.
Answer: Yes, that seems correct. Keep in mind that it's really not two different things. There's only one promise but two remedies. The courts of law would refuse to enforce an action for damages (an action to enforce the promise as a real covenant) if there was no vertical previty of estate. However, since 1848 (Tulk) the courts of equity have been willing to enforce the burden, and allow the benefit to run, against an adverse possessor in an action for injunction (an action to enforce the promise as an equitable servitude). In modern times, the need for previty of estate is rejected and the promise will be enforced against an adverse possessor in an action for either/both damages &/or injunction.
Question: L leases to T1 60 years. T1 assigned to T2->no assumption. T2 assigned to T3, who assumes. T3 assigned to T4-> no assumption. T4 assigned to T5, no assumption. T5, after defaulting, stays in possession for 5 months and abandons(40 years from the original lease). 20 years go by, w/ no one in possession or paying rent(lease ends). This is what I think the L's remedies are: The L can sue T5 for the 5 months rent, but that is it(for T5). He can also sue T1, and T3 for those 5 months rent. As far as the 20 years of non occupancy goes, the L can only go after T1 and T3. Since he has a duty to mitigate damages, has a duty to relent the premises, and his damages would be the Rent stipulated in the lease, less the FMV of the premises during those 20 years. Hoping this is all correct I have one Question: what is the L's remedy for the time that T5 abandons, to the time that he finds someone new to lease the premises. What if it takes a year. Shouldn=t he be able to get FMV from T1 and T3 for the year that he could not find a tenant. What if it was a commercial building and tenants are more difficult to come by than for say residential leases? Hope this all makes at least some sense. Thanks.
1. Yes, T1 and T3 are liable on K theories for any damages sustained by L under the lease.
2. Yes, T5 is liable only for the period T5 was in possession of the estate.
3. In a modern state, requiring mitigation: The amount of damages would be the actual pecuniary harm caused by the breach. This would include, for the remaining term of the lease, Rent-FMRV plus any incidental damages that a reasonable landlord could not avoid. If this kind of property takes six months to rent, then L is entitled to 6 months FMRV plus, after it's rented, Rent-FMRV.
Question: I just took your April
'02 exam and there was an issue I raised which was not
brought up on the model answer, and I wanted to know why the argument could not
be raised if I am incorrect. I said that
Answer: The call of the question
on the exam was "
The defendants are A, B & C (not the City). How could a due process argument possibly arise in a lawsuit against individual landowners to enjoin enforcement of construction? Make sure you read the call of the question carefully.
Question: Are temporary physical takings per se takings by the Lorretto test?
Answer: Loretto requires a regulation that allows a permanent physical intrusion. The case is not about actual physical takings by government. We did not study actual physical takings. What do you think the outcome should be?
Question: One effect of a total
taking under the
Answer: That is correct.
Question: Note 4, pg. 526 suggests that when an encumbrance is not easily removable, the amount of damages is the difference in the present value of the land and the value of the land without the encumbrance. The note cites restrictive covenants as an example of an encumbrance not easily removable. My question is: Since a requirement of restrictive covenants is that it touch and concern the land, and a covenant touches and concerns the land if it stabilizes or increases land value, doesn't that imply that the damages recoverable for a breach of a covenant against encumbrances caused by the existence of a restrictive covenant will generally be nothing?
Answer: Good but incomplete thinking. Keep in mind that the BURDENED parcel may be decreased in value even if the BENEFITED parcels are enhanced in value. Not all covenants are mutually value enhancing. So long as the covenant is still of a real and substantial benefit TO THE LAND OF THE PARTY SEEKING ENFORCEMENT, the covenant will be enforced against the burdened land. Western Land v. Truskolowski, is the perfect example of a covenant that decreased the value of the burdened land but increased the value of the benefited land. If the owner of the burdened land in Truskolowski sold the land by a Full Warranty Deed (without an exception for the CC&R's) the buyer would have a claim for breach of the covenant against encumbrances and the damages would be the value of the lot without the restriction, less the value of the lot with the restriction. This could be a substantial sum.
Also, if the encumbrance was a 40 foot wide drainage easement, the SERVIENT parcel would be substantially reduced in value and, again, the buyer (if a Full Warranty Deed was used) would be entitled to damages. Make sense?
Question: When we are talking about notice for covenants, this doesn't include looking around and seeing that everyone=s house for example is single family residential right? I think that you said that it would be impossible to find out whether your land was burdened by a covenant if it wasn't recorded in deed or CC&R, because you would have to spend a lot of money and probably still wouldn't know for sure?
Answer: We talked about this a lot when we discussed Sanborn v. Maclean. We're going to talk more about it on Thursday. Also, see the Q&A on line. To have notice of the existence of an interest in land, that interest has to be in writing in the record of title for that lot, or there has to be something that a physical investigation of that lot would reveal.
Question: I was going through the
practice exam, and I noticed that in your model answer, for example the first
Answer: You need to use your judgment in responding to an exam or a real life case. If one of the essential elements cannot possibly be satisfied, then discussion of the other elements is a waste of time. However, if there is a chance that the element can be satisfied, then the other elements should be discussed.
Question: 1. Under CA Civil Code 1942 , "Repair and Offset", what is T's remedy if he has already repaired something and offset the rent twice in a 6 month period and that something breaks yet again before the 12 months stated in the statute has expired? Does he simply sue for breach of the K if it indeed contains a provision stating that the L was responsible for that type of repair?
Answer: Without the statutory repair & offset remedy, T is left with his usual common law remedies. If the breach is material, T can terminate & move out without further liability for rent & sue for damages. If T stays, T can recover damages for the breach in a normal court action.
Question: 2. Am I correct that in an Sublease situation, where T1 subs his lease to T2, he becomes the L to T2 and therefore is afforded the Landlord remedies that we discussed in class?
Answer: Yes, that is correct.
Question: 3. In a sublease situation where the original L and T2 change contract terms without T1 involved, L has impliedly released T1 of all obligations to L. But what if T1 does not want to be released? What if T1 wants his right of reversion? What if T1 was making a little extra cash from the sublease agreement?
Answer: In a sublease, L & T2 cannot displace or alter the lease between L & T1. T2 is not a party to the primary lease and has no rights to alter it. L has granted the leasehold rights to T1. Therefore, L cannot re-lease the property to anyone else during the term of T1's leasehold.
Question: 4. When L and T1 contract to allow T1 to assign or sublease, is L released of his duty to mitigate T1 abandons/surrenders, b/c he has shifted this burden to T1? (I think that today, L always has a duty to mitigate.)
Answer: No. A consent to assignment or sublease is not a release by L, nor is it any other kind of agreement by L. It's just a consent to a transfer of the estate or the creation of a sub-estate. It does not affect any of the other rights of L.
Question: 5. In the absence of a provision allowing T1 to transfer his lease, and T1 transfers anyway, the L will waive his right to object to the transfer if he accepts rent money from T2. Does this mean that L must accept money from T2's hands? What if T1 is paying with T2's money and L believes it is T1's money? Will we hold L with constructive knowledge that T1 had transferred his lease?
Answer: Waiver is an equitable doctrine that focuses on the intentions of L and the reliance of the other party. The particular facts are relevant to the extent that they help us understand the L's intentions & reliance by T1 and T2. If L has no idea that the assignment or sublease has occurred, how can L have the intent to waive the transfer?
Question: The Q& A below, which I got from the class website, has made me confused b/c I thought that Horizontal Previty was contingent on the parcels having originated from a common owner; that is, a common owner of two or more parcels conveys one of them w/ the covenant. Please, let me know if I am off. Following is the Q and answer. In the answer, wouldn't A have to have kept land connected to the land she conveyed to B in order for a them to be in Horizontal Previty of the estate so that the covenant was enforceable against successors at c/l (the only time when H/P mattered, right?)?Isn't the relationship between A&B in the answer more like Vertical Previty?
Answer: In this Q&A I was the
student's statement was incomplete. They assumed that previty of estate exists
only when ownership is SPLIT. That's not necessarily true. If
Question: Is it safe to say that Horizontal Previty is created when one estate is split into two or more, either by the original landowner or a Strawman?
Answer: No. Previty of estate,
most often, is when an estate passes from one owner. For instance, when
Question: 1. For our purposes, the difference between "assigning" and "assuming" is just which party we are referring to? T1 assigns his lease to T2 who assumes it?
Answer: No. In the case of an assignment, T2 is the assignee and always gets the estate. However, "assumption" deals with the contractual portion of the lease obligations. If T2 assumes the lease, then T2 has agreed to be liable for the contractual portion as well. If T2 does not assume, then T2 is liable only while T2 owns the estate (for rent and other obligations that travel with the estate).
Question: 2. Time does effect waiver... so in 1950 A, B, and C all open churches next door to each other in a residential only neighborhood (CC&R not zoning). They all move out in 1955. In 1980 a completely new church D wants to move in, but residents enforce the covenant. Residents probably prevail?
Answer: Yes, it seems likely that the residents would prevail. After all 25 years have gone by and there is no current indication that residents are willing to waive these types of uses anymore.
Question: 3a. In a Due Process violation, the court can order both invalidation of the ordinance and temporary damages.
Answer: Whoa! The remedy for due process is
invalidation of the ordinance, period. Keep in mind that due process is about
whether or not the ordinance is a proper exercise of legislative power, not
whether any individual is being harmed.
If the ordinance is not in the
Question: 3b. In a Takings
violation, the court can only declare that it is a Taking. The legislature then
decides whether it wants to exercise eminent domain, or invalidate the
ordinance and pay temporary damages. (But legislature never has to pay both
Answer: In a regulatory takings case the remedy is invalidation of the ordinance (or a writ preventing enforcement). The municipality can then (i) repeal the ordinance, (ii) amend the ordinance to reduce it's impact on the landowner, or (iii) buy the land from the landowner, paying fair market value. If options (i) or (ii) are elected by the municipality, then "temporary damages" must also be paid for the period that the landowner's land was "taken."
Question: 1.I was running through some hypos, and I came across one dealing with horizontal previty that didn't seem to make sense.
The book states (page 742) that if Bob's promise had been in a deed conveying Blackacre from Ann to Bob, Ann and Bob would be in previty of estate."
Answer: Yes that is absolutely
correct. Horizontal previty refers to
the time of creation of the covenant. To
be in "horizontal previty" the covenant must be created in the same
instrument that passes an estate between the parties. In this case, the deed
Question: Where my confusion comes in, is because in class, we discussed this hypo:
Bob owned two adjacent lots, Lots A and B. Ten
said in class that there is no horizontal previty here, because
Answer: In this hypo, the problem
was a lack of VERTICAL previty, not horizontal previty. "Vertical previty of estate" refers
to the connection between the original burdened/benefited party and successors. For the burden of a covenant to run to a successor,
it must travel on the back of an estate.
In this hypo, no estate passes between
Question: For the purposes of our class, do
"traditionally" and "at common law" mean the same thing? Or
does traditionally refer to older, feudal laws?
When does "common law" end and modern begin? Maybe with
Answer: There's no clear line
between "older" or "traditional" common law and modern day
common law. Sometimes when someone refers to "at common law" they are
referring to older cases although, technically, that's not always correct. I
try to be clear about this in class by using the phrase "traditionally, at
common law" or "historically, at common law" to refer to older
cases and thinking about the legal concepts.
Question: I beg your pardon, but reading the supplemental introduction to Tulk v. Moxhay (pp. 10) I think I found a discrepancy:
It appears from the facts in
the case that Tulk, not Elms, was the original landowner in
Answer: The original deed of the pleasure garden was from Tulk to Elms BUT in the deed there was there was a covenant in the deed BY the GRANTEE (Elms) to Tulk. So, Elms is the promissor and Tulk is the promisee.
Question: 1. Is it safe to say that Horizontal Previty is created when one estate is split into two or more, either by the original landowner or a Strawman?
Answer: No. Previty
of estate, most often, is when an estate passes from one owner. For instance, when
Question: 2. Would it be considered actual notice if a successor to land was verbally told by his predecessor that the land was burdened by a covenant but failed to put it in the deed. Or is notice only considered actual when it is express and recorded?
Answer: Actual notice means that the purchaser
actually knows about the existence of the covenants. It's a simple factual question. For example,
The more likely scenario
Question: After reading Loretto it seems to me that the Court's decision is problematic when measured against our definition of property. In property I we decided that property was really the interests in rights that the government/law would enforce. Therefore, we did not really draw a distinction between real property and intangible property in terms in one being more "legitimate," for lack of a better word, than the other.
However, Loretto implies that real property deserves more protection than other forms of property. The emphasis upon physical invasions and the holding that a permanent physical occupation is always a taking deserving just compensation, while holding that use restrictions on property are valid, (as long as there is a public interest)is problematic.
For example, using the Loretto standard, as the law seems to do, the government can regulate the number of times I withdraw money from my savings account each month (currently it is 6 times). This restriction of my property is considered valid. But a physical invasion of my real property, such as my home, would draw criticism.
If both my savings account and my home are property then why do the courts distinguish between the two?
Answer: Excellent points. This is what the Dissent is arguing in the case. We step onto a slippery slope when we make the determination based on the physical nature of the interference. As you point out, that seems to value physical characteristics more than intangible characteristics, even though it's the intangible expectations that are really the focal point of all "property."
Question 1: In an example: March 31st, Tenant's lease ends and he remains in possession after the date. At this point the landlord has to make one of two choices - treat the tenant as trespasser (tenant at sufferance) or the landlord can chose to treat the tenant as a periodic tenant. First, to be clear, the period from when the tenant holds over to the time the landlord makes his decision is called a Tenancy at Sufferance (right?). Is this period created by the landlord's inaction (his failure to choose one of the two options)?
Answer: Yes, that is correct, this is often called a “tenancy at sufferance” although it’s not quite clear what rights the parties have until L makes his election.
Question 2: Second, if a few months go by and the landlord doesn't make any decision, he allows the tenant to remain but doesn't demand rent or that he vacate, does this inaction only extend the tenancy at sufferance period or would a court look at it like it was the landlord's choice to treat this arrangement as a periodic tenancy?
Answer: At some point, the L's inaction will be held to make an election to treat the T as a periodic tenant.
clarification purposes in the Hypotheticals - Covenants & Servitudes, when
it states that "All of the remaining lots subsequently sold to buyers with
identical restrictions in each of the deeds." Does this mean that all the
deeds have the same covenant but the
Answer: Yes, that is correct.
Question: You were saying earlier today that all restrictive covenants, whether commercial or residential, are actual “non-competition” covenants. Does that mean that a residential restrictive covenant essentially “recognizes” that alternative uses of land are likely more valuable to the owner, but that each owner has forgone the “right” to compete for that kind of open-market valuation for the benefit of the group?
There's something about this concept that is very odd/interesting, but I'm not sure why just yet... it's almost like a more mature version of capitalism using "game theory" or something...
Answer: Yes, I said that all land use restrictions, residential or commercial, are restraints on alienation. That's the whole point. Land is burdened with the restriction but enforcement of the restriction leads to reliable land uses that increase the value of land use projects. This is true even when the covenants/servitudes are viewed as "anti-competitive." By restricting competitive use of other's land, the parties can plan for value-enhancing uses. Of course, there's a balance involved. If the covenants/servitudes go too far towards anti-competitiveness and further away from land use, it becomes more likely that the courts won't enforce it.
Question: Will the test be based on the modern requirements regarding previty and covenants, i.e., not required ever in equity and only required in law for partial vertical in running the burden?
Answer: You should know both the traditional and modern viewpoints.
Question: Another quick question. I was going over the covenants and servitudes section this past weekend and I read a secondary source that implied that only equitable servitudes can be terminated by changed circumstances and not covenants...is this an incorrect reading?
Answer: Hmmmm. That's a curious statement. I don't think the source is a very good one. Keep in mind that we don't enforce covenants in the first place unless they touch and concern. So, if circumstances change and the covenant no longer touches and concerns, why would we continue to enforce it?
Also, all modern states have merged covenants & servitudes because the only distinction between them was based on the absence (or presence) of previty (see the decision in Tulk v. Moxhay). I can't think of a sensible reason that we would terminate an "equitable servitude" but not terminate a "covenant" when it no longer touches and concerns.
Question: Thanks so much. I thought that changed circumstances would have rendered both unenforceable if they no longer touched and concerned the land...and as I was racking my brain, I couldn't come up with a rational distinction between the two that would terminate one and not the other because the only differences between the two are that 1. Neither horizontal nor vertical previty is needed for the benefit or the burden to run for an equitable servitude. 2. Remedy at common law was an injunction.
I also had one other question. The secondary source also states that that real covenants may not be created by implication or prescription. Here's the language:
"A real covenant can only be created by a written instrument. A deed signed only by the grantor suffices to create a real covenant on the part of the grantee, because the grantee is held to have made the deed his own by accepting it. Real covenants may not be created by implication or prescription."
Is this basically just getting to the heart of the "enforceable promise" element for the burden or benefit to run?" for a covenant? I know we had three theories under servitudes in order for the burden to run: for an enforceable promise 1. Express 2. Implied Reciprocal Promise (Sanborn) and 3. Third Party Beneficiary. Do those theories only apply to Equitable Servitudes?
I really hope this makes sense and I'm not just talking you around in circles...
Answer: Yes, the only way to create a covenant or
Question: Is it fair to say that Lucas is for regulatory takings what Loretto is for physical takings--that is, a per se test that applies to an ever so exceptional category of cases that we probably will not see it being applied again, especially considering the fact that the balancing the factors test is able to resolve these inquiries as well?
Answer: Yes, you're right. We're very unlikely to
ever see another
Question: Quick question: Let's say I buy a house for $300,000 then the market crashes and my house is now worth $220,000. The government then exercises its right of eminent domain. Will the remedy be the market value of my house at that point, or what I paid for it to begin with...is this another losing lottery ticket situation? Thanks!
Answer: Good question. The obligation placed on the government is to pay the same fair market value that the owner would receive if the owner was to sell the property at that time. So, whatever the value is at the time. Keep in mind if market values are low, the owner can just invest in other property and wait for the market value to rise.
Question: Question regarding Commons v. Westwood Zoning Board. From the opinion of the case (2nd full para on page 852):
"It is appropriate to consider first the origin of the existing situation. If the property owner or his predecessors in title created the nonconforming condition, then the hardship may be deemed to be self-imposed."
Could the WESTWOOD have made the argument that COMMONS' delay in constructing (unlike all other lots in the subdivision) had created the situation, and that the "undue hardship" was therefore actually self-imposed?
The court seems to indicate that self-imposed hardship is triggered by affirmative actions by the land-owner, but the criteria listed were by no means exhaustive...
Answer: Your question about delay in construction is
interesting. Read the
Question: It does make sense, but then again, the same comeback could be used to defeat the "self-imposed" lot size problems of an owner who sold away a chunk and is now unable to build.
The owner would assert he is experiencing "undue hardship" because he cannot build and has therefore lost reasonable use of his land. However, the COMMONS opinion would indicate that because he sold the land, the courts would not be sympathetic because his plight was self-imposed.
Could the owner then "defeat" the "self-imposed limitation" by claiming that his lot is only 5% undersized (95 ft. instead of 100 ft.), and that the house he wishes to build would not have any negative impact on the surrounding houses and would fit into the neighborhood perfectly well according to the spirit of the zoning ordinance?
If so, when/how does this "self-imposed" rule get some teeth?
Or does the "balance" you referred to have some "equity" traits that might require "clean hands" (that the land owner didn't create this situation intentionally, or with knowledge)?
Answer: An owner who sells off some part of the land following the zoning change (or in anticipation of the zoning change) loses any entitlement to a variance. The undersized lot must be in existence prior to the zoning change. Take a look at the S.D. Municipal Code provision on variances (paragraph #1 on p. 77).
Question: I am reading
Answer: A novation is an implied release by L. When L and T2 agree to material changes in the assigned lease, it can be interpreted as an unequivocal intention on the part of L to release T1.
Answer: The case indicates a modern and sensible
view of interpretation of documents. The universal rule of interpretation of
deeds, wills, leases and other documents is to look for the intention of the
grantor. Assume that the parties (T1 and T2) want to create a sublease
for the remainder of the term, but at a different rent. The traditional
view was that the parties would have to make a formal reservation of a
1-hour reversion in order to assure that the intention of the parties (creation
of a sublease) would be honored by the courts. Doesn't this remind you of
"strawman" transactions where technical, formal acts had to be taken
to realize the intentions of the parties? Obviously, an enlightened and reasonable
view is the one taken by the court in
Question: I'm working on the Reste
Realty case and I have a question: The court discusses two cases
Answer: This case is an example of
a change in the law over time that reflects modern economic and social
realities. The case of
Question: I was reading the assignment for Tuesday and in Note 3 on page 541 it says "virtually all" jurisdictions allow a tenant to raise the defense of breach of warranty of habitability to a summary proceeding but I was under the impression that the only defense a tenant can bring in a summary proceeding is that they've paid and are not in default. Am I wrong on this or is there just a substantial difference among jurisdictions contrary to what the textbook says?? Hope you had a good weekend, see you in class!!
Answer: This case is one of many
that signal a change in the rule that no affirmative defenses can be raised in
an unlawful detainer proceeding. Even
Question: It seems to me that the majority opinion in PA Northwestern Distributors favors a per se categorical taking rule regarding amortization and Judge Nix favors a "balancing test", similar to the Penn Central "balancing the factors" test. Is this an accurate reading of the case?
Answer: Yes, your analysis is correct. Keep in mind that, according to the Supreme Court of Pennsylvania, any more restrictive zoning that interferes with a vested use will be a taking. This is a peculiar view under the PA constitution.
Question: I am curious about why the plaintiff's are suing for damages in this case [Rick v. West]. I understand that they couldn't sue for an injunction against West, as she was not the covenant breaking party. Is there such an action as dissolution of covenant, or something to that effect? Were damages their only choice, just to get it into the ct to be heard?
Answer: Good question. The
plaintiffs were seeking to have the covenants declared unenforceable or, in the
alternative, to limit the defendant's
rights to the collection of damages (that is, the covenant
would be "enforceable" but the only remedy available for Mrs. West
would be to collect damages for breach of the covenant). By the way, what
Question: I have a question
concerning your lecture today in class: We discussed the anti-competitive
covenant in the case of Whitinsville
Plaza v. Kotseas &
Answer: Whether competition is welcomed or rejected is a question of business factors. Sometimes, competitors need other similar companies to attract potential customers to remote locations (the "mile of cars" phenomenon). Indeed, that's the fundamental assumption of a shopping mall -- bring together lots of retailers as a way of attracting customers.
are just not enough customers to realistically support two substantial
competitors within a shopping center. In
the Long's Drug hypothetical, the initial investment costs are very high and
Long's can predict that, if it's the only "discount drug store" in
Horton Plaza, there will be sufficient customers to assure a decent return on
its investment. If there were two such
stores dividing up the available customers, neither would
make a profit and, therefore, would not undertake the venture in the
first place. So, Longs would refuse to
lease the property unless it can be assured that it won't have to compete with
another similar store in
Question: While reviewing the Warranty of Habitability I encountered questions regarding damages available. I have written that the formula for damages for situations in which the property is habitable or uninhabitable at outset is [Rent - FMRV (as uninhabitable)]. Is there another formula - I have that the formula from Hilder was basically unworkable because it was only effective the first time it is implemented. Please advise.
Answer: The common formula for damages for breach of the W.H. is the rent stated in the lease, less the value of the apartment as uninhabitable. The formula in Hilder, quite strangely, was the value of the apartment if habitable, less the value as uninhabitable. See the slide shows for more info.
Question: Can an illegal lease be a defense to an unlawful detainer?
Answer: No. An U.D. is an action to regain possession. If the lease is invalid, the T has no right to remain in occupancy. This doctrine is used only to avoid liability for rent.
Question: Are the Tenant’s remedies the same for Breach of Covenant of Quiet Enjoyment and a Constructive Eviction – i.e. the T can terminate lease, vacate in a timely manner, without liability for further rent, and can sue for damages.
Answer: I don't really understand this question. A constructive eviction is a breach of the CQE.
Question: What type of estate is created under an illegal lease if the T is still in occupation? A tenancy at sufferance or at will?
Answer: Good question. It can't be a T.S. That estate exists only when a T "holds over" and L elects to treat the T as a trespasser. There was no "illegal lease" doctrine until the 1960's, so it's hard to pigeon-hole this estate. Estate at will is probably the best we can do.
Question: What is the notice to terminate requirement for a tenancy at will?
Answer: What do you think
the answer is: (i) at common law? (ii) in states like
Question: Do the Boards have to grant nonconforming use, variance or special exception when all the requirements are met? Do they have discretion?
Answer: This depends on the municipal code, doesn't it? Take a look at the S.D. Municipal Code provisions for NC uses and Variances. Is the applicable agency given discretion or not?
Question: Does the expressed release of a covenant require all 100% of the benefactors’ agreement?
Answer: It's not "expressed" release. It's "express" release. The answer to your question, of course, is yes.
Question: I was going over my outline and
had a question on covenants I was hoping you might be able to clear up. Under
the touch and concern element of equitable servitudes, Neponsit v. Emigrant
holds that payment of maintenance money does touch and concern the land, but
isn't this benefit in gross, and thus should not be enforced. I understand that
Answer: The holding of
Neponsit is that covenants to pay money for common area maintenance will touch
and concern if it is part of a value-enhancing common land use scheme. As you state, prior to Neponsit, the rule was
that covenants to pay money were unenforceable against successors even if it's
what the parties intended, and there was notice to the successor, and it made
sense to enforce it. If Neponsit stuck
to the old English rule, we would not have condominium and subdivision
Question: Are there any supplemental sources which you can recommend to help me better understand the concepts of Scope and Interpretation of Covenants as introduced in the casebook by Hill v. Community of Damien of Molokai?
Answer: The scope issues usually relate to issues of interpretation of the CC&R's. As we discussed in the case of Hill, the courts will interpret covenants the same way they interpret deeds and easements to determine the intentions of the parties. You know the rules, right? If the intent of the parties is clear, then their intent will be implemented (unless there's some public policy reason restricting enforcement). If the intent of the parties is unclear, the courts will use rules of construction that favor free alienability of land. These fundamental principles can be found in just about any treatise or student commercial outline. I'm sure you studied scope when you covered estates in land and easements last semester.
We faced an additional issue, in Hill: If the intent of the parties is clear & there is no question regarding the scope of the covenant (no homes with families not related by blood or marriage), is that the type of covenant that T&C's land so that it will be enforced against successors.
Question: As for the second issue in Hill - Am I correct in stating that we determine whether the scope of a covenant "touches & concerns" land by looking at Use v. User restrictions and that the latter are usually held not to touch and concern?
Answer: As to the 2nd issue, all we can say is that some courts probably will not enforce "user"-type restrictions since they don't necessarily relate to land use. We saw the court in Hill was offended by the use of CC&R's to restrict users and discriminate against individuals based on who they were, rather than on the basis of legitimate land use planning. Keep in mind the general rule: we don't enforce the burdens of contractual promises against successors to land unless the promise is related to some land use planning scheme that is of a real and substantial benefit to land. It's hard to see how covenants based on user characteristics are rationally related to land use planning.
Question: I have a quick question on today's lecture. You gave a hypo in class: " A statute requires all landlords of residential multiple dwellings to provide cable service at their own expense & cannot charge tenants extra for this. " You said that the Loreto "per se" test does not apply in this hypo because it did not involve a third party. Am I correct?
Answer: That is correct. Loretto only applies if the statute authorizes a permanent physical occupation by someone other than the landowner.
Question: If the trial judge in West case could make a jury instruction and let the jury decide whether there was 'real and substantial benefit', I wonder why he did not do that.
Answer: There was no jury
in the West case. The issue was adjudicated by motion not by trial. The judge
held that, even if all the facts alleged by the plaintiff were true, there was
still no basis for terminating enforcement of the residential restriction
Question: 'Real and substantial benefit' is not clear to me, a law student. Can we expect that the jury can understand the concept clearly?
Answer: "Real and substantial" means that objective and disinterested parties would determine that the enforcement of the covenant enhances the value of the land of the party seeking enforcement. It's really quite simple, does the value go down if the covenant is not enforced. If it does go down, the covenant was of a real and substantial benefit.
Question: I was reviewing the model
answer, and had one quick question that I can't seem to figure out. Under
question 3 (
Answer: Yes, you are
Question: When you are acting as the third party beneficiary what horizontal previty are you trying to argue exists? Horizontal/vertical previty between the developer and lot owner who violated the covenant or lot owner who violated the covenant and owner seeking damages?
Answer: This is a good question. Keep in mind that a Plaintiff would be using the 3rd party beneficiary theory only to establish that there is an enforceable promise! If the original burdened party and the original benefited party (the 3rd party beneficiary) are the parties in the law suit, there is no need to show that the burden or benefit runs. However, if the original parties have conveyed the burdened and/or benefited land, then to bind the successor to the burden, the plaintiff would have to show (2) intent, (3) notice (4) touch & concern and, to get damages at old common law, H&V previty of estate. I think we have big problems with Horizontal Previty between the promissor and the 3rd party beneficiary, don't you? Keep in mind that, at old common law, there was no "3rd party beneficiary" contract enforcement anyway.
Question: I have a question regarding previty and it goes like this: D conveys two separate fee's to A and B with real covenants riding on back, say for, residential purposes only. A and B subsequently sell to C and D respectively. The question is could C sue D if D decided to build a disco. The reason I ask is because A and B were not in horizontal previty but in were in previty with D and now D is gone.
Answer: This is not a "dumb" question at all (per your second email). In your hypo, Developer and A are in horizontal previty of estate. Therefore, A's successor's will be bound (if all the other elements are satisfied). Similarly, Developer and B are in horizontal previty of estate and B's successors will be bound.
However, there are problems with the benefit running in your hypo. A and A's successors cannot sue B nor B's successors, since the beneficiary of B's promise is Developer and Developer's successors. B made B's promise to Developer, not A. A is not a successor to the benefit of the promise made to Developer. A can sue neither B nor B's successor, D.
A would be able to enforce B's promise to Developer only if A can show that A is an intended, 3rd party beneficiary.
Question: I had a question on the hypo
for Property II. In order to for Zed to sue
Answer: Your analysis is
not correct. What promise is Zed seeking
to enforce? Isn't Zed seeking to enforce
the benefit of the promise from
Question: I know that the Council was seeking compensation for the temporary taking of their land, but was it for the 32 month moratorium or the 6 years? The dissenting opinion kept bringing up that it should be for 6 yrs. but I was under the impression they were fighting for recovery for the 32 months. The TRPA, they are just seeking to not have to pay compensation for the "temporary taking"--right?
Answer: For the "100%" loss of use during the 32 month moratorium. The plaintiffs are classifying this as a 100% taking during the period of the moratorium, not as a "temporary taking".
Question: This case just confused me
a little bit because it would refer to the Penn Central case and say that we
should use that because
Answer: The majority decision (and the Court of Appeals decision) stressed that the appropriate test to use when a moratorium deprives landowners of use is the Penn Central balancing test. However, in this case the Plaintiffs neglected to raise that argument in their pleadings (because they knew they would lose if they did).
Question: When discussing the requirement
that there must be vertical previty of estate for the benefit to run, I
don't really know what the
"majority" rule is at this time. As you point out, it was rejected by the courts of
Answer: My guess is that no modern court would require previty of estate for either the benefit or the burden to run. But I can't state definitively whether or not it's the "majority rule." It just doesn't come up that often.
Question: What does it mean to say that a covenant burdens an estate and a servitude burdens the land? The implication seems to be that I can pass an estate to someone and not pass the covenant along with it, but that I can't sell land burdened by a servitude without "selling" that servitude along with it.
Answer: Covenants at law traditionally hitched a ride on the "estate" so there had to be previty of estate for the covenant to run. For the burden to run, the previty had to exist at the time of creation ("horizontal") and each time the burdened land was transferred ("vertical"). On the other hand, servitudes work like easements and run with the land, regardless of the presence or absence of previty of estate (as in Tulk v. Moxhay). For instance, a covenant would not run against an adverse possessor traditionally at common law since the adverse possessor gains title by force of law, not by transfer of an estate from the prior owner. In the law courts, there would be no remedy (damages). However, the promise could run as an equitable servitude in the equity courts, since it did not burden the estate but, burdened the land, regardless of whether or not an estate passed.
In modern times the distinction is not relevant, since previty is not required in modern courts.
Question: I understand how both the benefit and burden run to successors in courts of law. I'm having some difficulty when trying to determine whether the benefits and burdens run to successors in courts of equity, more specifically, how the benefit runs in courts of equity. I have in my notes the elements required for the burden to run in a court of equity (same as others but without the horizontal previty requirement), but not for the benefit to run in a court of equity. Are the requirements the same? (And am I making any sense?)
Answer: This is a really good question. The requirements for the running of the benefit are always less intense then the running of the burden. In fact, it's just not litigated that much. Traditionally, horizontal previty of estate was not required for the benefit to run, even in the law courts. So, I think we can safely assume that the equity courts would not require horizontal previty for the benefit to run (especially after Tulk v. Moxhay, where the equity courts dropped the horizontal previty requirement for the burden to run). It's highly unlikely that full vertical previty of estate would be required by any court for the benefit to run, whether in law or equity. We're just not that concerned about it. Indeed, in the case for tomorrow (Neponsit Realty) the highest court of New York rejects the vertical previty requirement for the benefit to run at law -- so the courts of N.Y. would be even less likely to require it for the benefit to run at equity.
Question: I read your notes in the supplemental first and then read the case. It seemed to have a contradictory conclusion so I turned to an outside source as well, it also agreed with the text. The conclusion I drew from the case itself, and what the outside source said, was that Moxhay was held to the covenant and a ruling was in favor of Tulk because otherwise Moxhay would have been unjustly enriched. In the supplement it says that the law courts were unwilling to enforce the covenant between the subsequent purchasers of Elm's land. These are two totally different outcomes...Am I missing something or did I interpret your supplemental notes wrong?
Answer: Good questions. Yes, you're missing something. Re-read the materials in the Supplement, and focus on the following two paragraphs, keeping in mind the fact that there were two different court systems in England at the time of Tulk v. Moxhay, courts of law and courts of equity. Here’s the excerpts:
However, to obtain a
remedy in the law courts of
In the case of Tulk v. Moxhay, pay attention to the fact that the case is being adjudicated in the equity court of England (the plaintiff was seeking an injunction, not damages), where the judges were not bound by the same formalistic requirements as the law courts. Does the equity court require horizontal previty of estate? What does the court require for a covenant to be enforced against a subsequent owner such as Moxhay?
I am having a problem distinguishing b/wn "running w/ the land" v. "running w/ the estate." As I understand it, the former applies to servitudes and the latter to real covenants. But, don't real covenants run with the land today? I thought the RC's requirement of horiz and vert previty meant that a real covenant could not "run w/ the land" b/c it first had to travel on the back of an estate.
Covenants at law traditionally hitched a ride on the "estate" so there had to be previty of estate for the covenant to run. For the burden to run, the previty had to exist at the time of creation ("horizontal") and each time the burdened land was transferred ("vertical"). So, an adverse possessor of the burdened land would not be bound since title was not acquired by the formal conveyance of an estate. On the other hand, since the case of Tulk v. Moxhay in 1849, servitudes work like easements and run with the land, regardless of the presence or absence of previty of estate. There is a modern trend towards dropping the requirement of previty of estate as a requirement for the running of the burden as a covenant (damages). In those modern jurisdictions, the promise will run with the land, not the estate, regardless of the remedy sought.
If a developer promises to the first buyer in his common scheme that all of the remaining development will be residential but secures no reciprocal promise from the first buyer, will subsequent purchasers in the subdivision be able to find an implied reciprocal promise from first buyer to the developer--that will in turn run to them? My hunch says NO b/c first buyer made no express promise to developer.
The answer is no for the reason you state.
I am confused as to whether modernly, a LL is required to mitigate his damages or be barred from recovery. From what we learned in contracts class, if a party doesn't at least make reasonable effort to mitigate their damages (like in Sommer v. Kridel), they can be barred from recovery. You said: “It does not matter what the LL actually does.”
The rule for mitigated damage
recovery in lease termination cases is well-stated in
(2) The . . . amount by which the unpaid rent which would have been earned after termination until the time of award exceeds the amount of such rental loss that the lessee proves could have been reasonably avoided.
Note that it doesn't matter what L actually does. The amount of damages will be limited to the difference between the rent reserved in the lease and the FMRV (the amount of loss the T proves the L could reasonably avoid).
As far as I know, this is the same rule for breach of contracts for the delivery of goods when there is an anticipatory repudiation and the seller still has control over the goods. It doesn't matter what the seller actually does with the goods. The seller will be limited to the amount by which the contract price exceeds the FMV of the goods (the amount of loss the Buyer proves the Seller could reasonably avoid).
Section 2-708 of the U.C.C. provides that: "the measure of damages for non-acceptance or repudiation by the buyer is the difference between the market price . . . and the unpaid contract price together with incidental damages."
Does this answer your question?
Could you help me with the holdover tenant v. Tenancy at Sufferance? I am reading the supplement (page 68-69) and am still a little mystified. Is a tenant who is a "Holdover tenant" not necessarily a "Tenant at Sufferance"?
My thought is that when a tenant stays past their term, they are a holdover tenant. A landlord may *choose* to treat them as renewing under a periodic tenancy or treat them as a trespasser under the more specific designation as a "Tenant at Sufferance".
You are correct.
1) One thing that we didn't discuss today at all during our discussion of Hadacheck was his claim about a monopoly and I was wondering if it was simply because it wasn't pertinent to the "taking" discussion, or simply because no one brought it up. Would that have been a consideration under the character of government action being prejudicial in some way?
I can't see a way that antitrust is related to the due process or takings issues that arose in the case. Hadachek's complaint was enormously long and used a scattergun approach (asserting many causes of action). The court correctly ignored this.
2) When we were reviewing the
taking 'per se' I noted that would
include both permanent and temporary (even for a few minutes) taking of
physical possession. Did I
misunderstand? Source of my confusion,
if I noted permanent and temporary both equating to taking requiring just
compensation, when I read Loretto, I had noted the following cases: Pumpelly v Green Bay Co.: D’s
construction of a dam which permanently flooded plaintiff’s property
constituted a taking. Northern Transportation Co. v
An actual physical seizure by government is always a taking (unless some emergency or other extraordinary civil or criminal doctrine applies) and, therefore, compensation must be paid. Even a temporary seizure. In the temporary dam case there was no physical seizure, merely activity that temporarily flooded the plaintiff's land. There were no physical intrusions by others using the land. In Causby planes were intruding along a government maintained flight path. Does that seem to justify a distinction between the cases?
I appreciate the confirmation and clarification of the rule on number 2. Guess I am still troubled by the temporary dam because it did preclude the owner from using part of his land temporarily, just as the planes temporarily enter the air space.
I agree with you, it's a difficult distinction. Just keep in mind that unless the regulation authorizes a permanent physical intrusion, the courts will use a balancing test -- which means that sometimes a taking will be found (the over flight cases) and sometimes it won't (the dam case) depending on how the factors balance out. In the over flight cases the use is occasional but approaching permanent since the airport is likely to be there a long time. Perhaps that's a way of distinguishing the cases.
I'm still a bit stuck on seeing a clear distinction as I believe it was a taking for the welfare of the public, albeit a temporary one. Part of me wants to argue that the dammed land (sorry, but that is a funny pun when you think about it!) wasn't being used for anything anyway so when balancing the economic impact it was minimal, whereas the man with the land at the end of the runway, couldn't build vertically, ever, creating a larger economic impact.clarification!
Yes, that seems like a rational distinction between the cases.
In our property II supplement regarding termination of covenants, you state that in addition to the 6 ways that an easement can be terminated, covenants may also be terminated by changed circumstances and waiver.
Last semester, we learned that easements may be terminated by condemnation (government taking the land) and destruction (when the property is physically destroyed). I would imagine that these concepts hold true for covenants as well. In other words, a covenant can be terminated through condemnation and destruction. Am I right?
Yes, that is correct. The government can take any property for public use by power of eminent domain but must pay just compensation. Keep in mind that two different "owners" own an interest in the parcel: (i) the fee owner, and (ii) the easement holder.
When the government "condemns" a parcel that has an easement across it, government can opt to condemn just the fee - and pay the fee owner, leaving the easement unaffected. On the other hand, government can condemn both the fee and the easement. If the government condemns the easement, it must, of course, pay just compensation for the easement to the owner of the easement. If both interests are being acquired by government, then in the eminent domain proceeding both the fee owner and the easement owner will be joined as defendants.
As to destruction, I'm not quite sure of the principle you're referring to. Can you give me an example?
My second question about destruction referred back to a concept I learned last semester. For example, if I had an easement to walk over another person's land to obtain access to the beach, and the land in which I had the easement over was washed away by the ocean, then my easement was "destroyed." I would no longer have access to the beach (unless of course the owner of the servient estate granted me an easement in gross over another part of her land).
This is a very interesting line of
thought. I'm still not quite sure about this destruction
doctrine. Easements exist in time & space regardless of what the fee
owner does with the servient parcel. It's hard for me to picture the
destruction of land, except in rare circumstances. An easement for access
across my land will continue to exist even if I excavate the top 100 feet of
the parcel and it fills with water. So, even if the beach washed away, the
easement still exists. If the beach was to be replenished, the easement
would still be there. There's a situation in
Do you have a case you studied regarding this principle?
Using this concept for covenants, if a natural disaster occurred for example, and destroyed a residential development, would the owners of the lots in this development still have to abide by the restrictions of the covenant? (This is not a very good example, but I couldn't think of a better one on the top of my head).
If the residential development was destroyed and was not being rebuilt then the covenants would no longer touch and concern. However, if it was being rebuilt by some of the owners, then the covenant would continue to touch & concern. So, again, I'm not quite sure about this destruction doctrine.
When I was thinking about this, I concluded that all forms of termination go back to whether or not the covenant "touched and concerned" the land. This statement doesn't seem accurate to me. Express termination, release, abandonment are not related to "touch and concern." Neither are waiver & estoppel.
In other words, if the covenant that was "destroyed" had a real and substantial value to the land, then it would run with the land so long as the lot owners redeveloped their residential area. (i.e. one lot owner could not decide to use his lot for an apartment complex when previously his covenant restricted its use to single family dwellings).
I'm not quite sure I understand this last point. Thanks for some interesting Sunday night thoughts.
As I read the Hadachek case tonight, it just doesn't seem right. How is it that the zoning ordinance that was put in place, which precluded Hadacheck from running his mfg plant, thereby causing him to incur costs by moving/shutting down his facility, did not earn compensation from the gov't? Shouldn't compensation for these things be part of the planning commission's risk assessment when proposing these usage restrictions? Is that part of the budgeting process? I realize he was still able to get the raw materials from the location, but by imposing this restriction on the land use, he clearly incurred costs. Wouldn't it have been more 'just/fair' to compensate him for costs incurred due to imposing the zoning ordinance? or is it just 'life isn't fair' situations and 'live and learn'?
As I sit back and think about
this case, it is becoming more and more clear to me
why businesses need to be involved/aware of local planning commissions and
their proposals. I suspected these
things occurred and I understand the need for zoning, but it seems only fair
people/businesses should be compensated.
I had similar stomach churnings over the
Question for you: If a business owner is aware that an ordinance is being proposed that could drastically hurt his business and he wants to sell BEFORE the decision is made, is he legally required to disclose his concerns to prospective buyers? or is it 'Buyer Beware'?
I thought your comments were very insightful. We have a lot of cases in this part of the course that focus on the questions you raise -- when should compensation be required for decreases in value caused by land use regulation. Rather than respond to you at this point I'm going to ask you be patient. We'll be examining this issue in great detail in class.
As to your question regarding disclosure to prospective buyers, the common law rule is “caveat emptor” or “buyer beware”. This makes sense since the buyer is just as capable as the seller with regard to checking the status of pending zoning changes. In addition, if the buyer is using a real estate agent, the agent is a professional who should know of such matters and disclose them to the buyer.
On the other hand, why not impose a simple burden on sellers to disclose known information regarding such important matters? We will study this issue at the end of the semester.
If this was a serious concern for the buyer, the buyer might want to insist in the contract of sale that the seller disclose any known issues regarding the compliance of the land & improvements with existing or proposed land use regulations.
I am unsure how adverse possession affects previty of estate when dealing with the burden and benefit of a covenant at law? My understanding is that since an estate relationship has not been established between the original party to the covenant and the "successor" adverse party, vertical previty cannot be established and therefore an adverse possessor cannot enforce a burden or enjoy the benefit of a restrictive covenant. Is this correct?
Your analysis would have been correct prior to
1848. In 1848 the Courts of Equity in
Do I understand it right that a restrictive covenant not to compete does not run with the land in traditional common law, but it may in 'modern law' so long as it is 'reasonable'?
This is the issue in
I was reviewing my notes from the lecture and I do not have a firm understanding for why the court rejects the vertical previty requirement in the Neponsit case. (Aside from the fact that it does not make any logical sense to continue using vertical and horizontal previty), I gathered from the reading that "violation of the restrictive covenant may be restrained at suit of one who owns property, or for whose benefit the restriction was established, irrespective of whether there was previty either of estate or of contract between the parties..." (880) In this case, even though Neponsit did now own any property, because they were acting in the interest of Emigrant, previty was not necessary. Is this correct? Also, I am unclear about "form" and "substance." Does the court mean that when determining whether a covenant "touches and concerns" land, they will focus more on the benefits the covenant induces (substance) rather than by the rigid application to the elements (form)?
The court is not exactly clear about it's rationale for ignoring the traditional vertical previty requirement. On the one hand, the court seems to use an agency theory (the Homeowner's Association is acting as an agent for the property owners who are in vertical previty with the developer). This makes sense since any of the homeowners could have easily joined as a plaintiff in the lawsuit and the requirement of previty would be satisfied. On the other hand, the court states that to honor the vertical previty requirement would be to exalt form over substance. That is, why honor vertical previty when there does not seem to be any substantive reason for doing so. The parties could have easily satisfied the previty requirement by having developer transfer a tiny piece of land to the Homeowner's association. Or, another homeowner could simply have joined as plaintiff in the lawsuit. So, the court seems to reject the requirement of vertical previty of estate - at least in a case like this where the party seeking to enforce the benefit is a homeowner's association seeking to collect common area maintenance charges.
Regarding implied reciprocal servitudes, Is it also necessary (as an element) that at one point all the land in question was owned by a single owner (developer, etc.)? Or could this situation arise too by way of, perhaps, a Home Owners' Association that decided starting in said year, no more condos could be sold to subsequent purchasers without a restriction for residential use only. Could then the condos retained by original owners be subject to the restriction via an implied reciprocal servitude? All of this is of course assuming the situation arose in a time in which this area of law would have been acceptable to a court.
In Sanborn the court emphasized that the promise had to be reciprocal by the common owner. So, the implied reciprocal servitude must arise, if at all, when the developer of a planned community sells off a parcel and receives a unilateral promise from an early purchaser. It cannot arise between neighbors or prior purchasers.
(1) what’s the difference in terms of remedy b/t an illegal lease and breach of warranty of habitability? Seems like if one were available so would the other be, (except for when a residence BECOMES uninhabitable while living there)--other than that, is one a more favorable option for the T than the other?
Illegal leases only exist where the premises were so substantially in violation of the housing codes at the beginning of the term that the subject matter is “illegal.” This requires extreme conditions and they must exist at the time the lease was agreed to. The ONLY remedy is to move out without liability for rent (although T must pay the FMRV of the premises). IWH is far more preferable. Any substantial violation of the housing code provisions dealing with health and safety constitute a breach and T has several remedies.
(2) In a common scheme of development: Is there anyway for the subsequent parties bound by covenants to enforce against “A” who was the first purchaser and had no covenants? (express/implied reciprocal wouldn't work, 3PB wouldn't work...)
No. If A is the first purchaser who makes no express promises then A and A’s land are not bound.
(3) if there is a holdover, and the new family is waiting downstairs to move in on the 1st, can the holdover be responsible for their damages? Or is the L directly responsible and then can sue holdover for damages?;
Very good question. What should the answer be? Who is causing the harm? Has L violated any covenant to the new family? We studied the case of Hannan v. Dusch regarding this very question.
(4) Does 3rd party
beneficiary work in CA or
I’ve not researched this but there is no reason not
to follow the doctrine in
Your model answer to spring
2002(regarding Andy)says: If developer established a common scheme of
development and conveyed lots containing express covenants, some courts will
imply a reciprocal servitude binding the land retained by developer.
Q: if the lots contained express covenants, what interest is being implied?
Q: does it relate to a subsequent purchaser of a lot on developer’s land which did not contain an express restriction?
The Model Answer points out that an Implied Reciprocal Servitude (
Also, does recording the document entitled CC&R's satisfy the written promise requirement so that the restriction does not need to be in each subsequent purchaser's deed?
Yes, that's the point of recording a Declaration of Conditions, Covenants and Restrictions.
If you have an implied reciprocal servitude would the only way for you to meet the notice requirement be constructive notice threw the common scheme? And, if no common scheme then Sanborn says that you can have inquiry notice?
Notice is a troublesome
issue in Sanborn. Even if the MacLeans checked
all 90 or so surrounding parcels, they still wouldn't know
whether or not their lot (Lot #84) was bound or not by a covenant or
servitude. All they would discover from their search is that
about 50% of the surrounding lots have a residential restriction. The
only way to "know" whether or not
What the court in Sanborn
called "inquiry notice" is NOT what courts typically mean when
they use the term "inquiry notice." Inquiry notice means
that a physical inspection of the lot in question (
Let me make sure I have this correct. If T2 does not assume from T1. T2 has an estate relationship, but no K relationship with L. Once T2 moves out there will be no previty of estate between T2 and L, and T2 will not be liable for rent. But, T2 will be liable for all of the covenants that run with the land. Doesnt the covenant for the rent run with the land. How does T2 get out of rent after he leaves simplly b/c there is no K theory? I know the rule, but I am not sure how it work.
I assume you're talking about an assignment here, correct? Once he no longer is in possession of the estate, T2 is not liable for performance of any of the covenants, even those that run with the land. If he re-assigns the leasehold or abandons it, he is not liable for performance of any of the covenants, since he is no longer in previty of estate.
If your land is zoned for residential use and later it gets rezoned to your detriment, must you first exhaust administrative remedies: nonconforming use permit, variance, conditional use permit, application for rezoning? Then, if these methods don't offer relief, you can challenge the zoning as a regulatory taking?
That is correct. Courts will not hear constitutional claims if the plaintiff has a possible administrative remedy available. The administrative remedies must be exhausted first. In this regard, "application for rezoning" is not an administrative remedy. Rezoning is a change in the zoning classification made by the legislature. That is part of the political process and hardly an administrative remedy provided by the municipal code (such as a variance or non-conforming use.)
A few of us are a bit confused on the remedies in First Evangelical. After land owner brings the inverse condemnation suit, if the court determines a taking has occurred, the decision is given to the legislature whether to amend the ordinance, repeal the ordinance, or do eminent domain. Only if they chose to amend or repeal the ordinance, the landowner is entitled to temporary damages or will the landowner get temporary damages even if the legislature chooses eminent domain?
If the municipality opts to exercise the power of eminent domain, the landowner will get the full market value for the land, so there is no need for damages for a "temporary" taking, since the land is permanently taken by the municipality. The value will be determined as of the effective date of the regulation, with interest.
L has made an estate for yrs for 1 yr from Apr 1 to March 31st with T. April 5 arrived but T still stays. L has not made his decision yet. On April 6th L decides to kick T out. Is T liable for the rent for 5 days? What if T moves out on April 6th? My answer is T is not liable for anything because L did not make decision before April 1st arrives.
T is not liable for rent but T is liable for the use & occupancy of the premises (at the fair market rental value).
This is actual eviction by
the party entitled to possession.
Can statute permit L to
recover 2-3 times the regular rent for the time T actually holds over? I remember in
Yes, a statute may provide
this (this is true in several states).
This is different than
Are the Present Covenants of Title and Encumbrances and the Future Covenant of to quietly enjoy and warrant or defend against people claiming superior title and to provide further assurances implied in a certain type of deed? I don't think they could be implied, if at all, in a special warranty deed or a quitclaim deed. If this is better left for an office visit I understand.
These may be implied by
using a statutory short form deed. For
instance, a deed that uses the word "grant" in the State of
Is this a correct analysis of Reciprocity of Advantage? If a block has been zoned for commercial and the owner sits on it for few years, it is then subsequently zoned for residential and the original buyer sues for taking because his land dropped from 80%. It would probably not be a taking if it can be proved the rezoning is benefiting a substantial amount more then it is hurting. Plus he waited on the land, a public entity will not be obligated to reimburse because of zoning
This is not what the courts are referring to when they refer to an "average reciprocity of advantage" or a "reciprocal scheme of benefits & burdens." Those terms refer to whether or not, in general, landowners are burdened & benefited by the land use regulation. For instance, a zoning regulation benefits and burdens all landowners, while historic landmark designation burdens a relatively few owners but benefits all owners.
Covenants & Servitudes: I know you can't force someone to tear down a structure in violation of a covenant running at law once it is already built, but what if it is only partially built? Can someone who holds the benefit of a restrictive covenant force the violator to stop building in the middle of construction (injunction via suing as an equitable servitude), and recover at law for damages the existence of the partial structure may have caused?
This question is a general remedies question that is outside the scope of our course.
2.) At CL, under the doctrine of "independent covenants," even though T was not paying rent, does L remain obligated to allow T to retain possession (and sue for rent)?
I'm not sure I understand this question. If T doesn't pay the rent, for whatever reason (except a breach of the warranty of habitability or pursuant to a repair and offset statute) L has the right to bring an unlawful detainer action for non-payment of rent. The T's remedies for a material breach of an express covenant by the L are: (i) pay the rent & sue for damages; or (ii) terminate the lease, move out and sue for damages.
I have a very low regard
If T vacated and L attempt to relent for the T's account, but could not find T for 2 months, then what is L's damage? my answer would be ( two months of rent + (rent-fmrv)*period left. is this right? here fmrv is the new rent the new T would pay for.
Yes, that is correct.
At common law for the burden to run need:
1. enforceable promise
3. touch and concern real property
4. intent to burden successors
5. horizontal and full vertical previty of estate
In modern law - are the requirements for both horizontal and vertical previty eliminated?
For an injunction at equity the requirement of previty has been eliminated since the case of Tulk v. Moxhay in 1848. Theoretically, if the plaintiff is seeking damages, the requirement of previty still exists in some jurisdictions. Many modern courts have dispensed with the requirement of previty for damages as well, for the same reasons as the Lord Chancellor dispensed with previty 155 years ago – there is no sensible, logical, economical or social reason for requiring previty of estate (horizontal or vertical) as a condition for the running of the burden of a covenant/servitude.
At common law for benefit to run need:
1. enforceable promise
2. touch and concern real property
3. intent to benefit successors
4. partial vertical previty
Do you still need partial vertical previty in modern law?
Again, it is unclear in some jurisdictions. Does it make sense to require it? Should it matter whether a successor to the benefit takes by deed from his predecessor or, because of a failed deed, by adverse possession?
Am I correct to say that equity courts used to require previty for the burden and benefit of servitudes to run and that Tulk v. Moxhay was what eliminated previty for equitable servitudes?
There was no such thing as an equitable servitude prior to Tulk v. Moxhay. The case allowed the running of the burden in the Courts of Equity notwithstanding the lack of previty of estate.
If no previty is needed for burden or benefit to run for covenants, is the only difference between covenants and servitudes in modern law the remedy?
If previty is not required, either remedy is available and there is no difference in the case of an express promise. However, if the plaintiff is relying on an "Implied Reciprocal Servitude", the plaintiff is seeking to have the court imply the existence of a promise. This appears to be an equitable cause of action (not based on traditional legal principles) and, depending on the jurisdiction, the remedy may be limited to an injunction.
I have one more question regarding the Spring 2002 Model Answer. On the issues of waiver and changed circumstances - should we have argued them as you did - as separate points regarding the termination of the covenant - or should we have argued them under the "touch and concern" element of an equitable servitude?
1. Waiver: This affirmative defense is unrelated to the issue of touch and concern & should be discussed separately.
2. Changed circumstances: It's really a judgment call. This could have been effectively argued in the touch and concern section. However, if you did so you would have to make clear that there are two different points in time being discussed (the date the CC&R's were created and the date of the possible changed circumstances).
In my notes I have..."If L breaches a material part of the lease/K, T can terminate lease and move out due to the doctrine of dependent covenants. Therefore, we don't need constructive eviction anymore." However, is this only in reference to the landlord specifically agreeing to making certain repairs etc. in the lease? Thus, if the landlord did not agree to anything in the lease besides the IMPLIED warranty of habitability then the doctrine of dependent covenants would not apply, but rather, the warrant of habitability would...?
If there is a material breach by L of any covenant in the lease, express or implied, T can terminate, abandon & sue for damages.
In an assignment, if T2 is evicted actually or constructively (breach of CQE), Can T2 sue both Landlord and T1 based on estate relation?
T2 can sue L for breach of the CQE based on the estate relationship between them. T2 cannot sue T1 unless the contract between them specifies that T1 promises that T2 will not be disturbed and will quietly enjoy the property. Remember that an assignment is the transfer of a leasehold estate with T1 retaining no reversionary interest. T1 is not creating an estate in favor of T2, so there is no CQE.
I was wondering if we need to
No, you need not memorize them. They are intended as examples of how some states respond to common law issues. If you understand the basic idea behind them you're fine.
We need to prove if there is
an express promise between original parties in order to show burden or benefit
run with a land. However, we sometimes
should show that reciprocal express promise and sometimes we don't have
to. For example, in Hype of Ann,
Because in questions 1 and 2 Ann made an EXPRESS promise. So, to enforce the promise against her or her successors there is no need to show an IMPLIED promise on her part.
1) If a buyer accepts a deed from seller that conveys a title that is unmarketable (assuming no exclusions in the K for sale), does the buyer still have a way out if she argues breach of the implied covenant to deliver marketable title even though the deed has now been delivered and the deed is supposed to extinguish the K of sale under the doctrine of merger? (in other words, since the K of sale is extinguished under the merger doctrine, how can the buyer get out of the deal if the seller delivers unmarketable title? Breach of K? How, if the K is deemed extinguished?)
Once the deed is accepted, the buyer can rely only on the covenants, if any, in the deed. That's the whole point of the doctrine of merger. Defects in title are discovered all the time prior to the closing but buyers still go through with the transaction and accept delivery of the deed. Acceptance of the deed is the completion of the seller's performance of the contract. If there was a material defect in the title of the seller, the buyer could have rescinded the contract and sued for damages but, instead, the buyer accepted delivery of the deed. The only contract provisions that survive delivery are those that the parties agree will survive delivery of the deed.
2) Hypo: "Seller says to buyer, 'Blackacre is yours WHEN you give me $1 million.'" The million dollars is paid 10 years later. Question: For those 10 years was the buyer the "equitable owner" under the doctrine of equitable conversion?
I'm not clear about your question. Is there a written contract of sale? If there is, then the answer would be yes if the buyer was in possession. Indeed, under long term contracts of sale, buyers will take possession for 10, 20 or 30 years and the seller is not obligated to deliver title until the buyer has completed the payments called for under the contract. The doctrine protects such buyers who are relying on the seller actually delivering title at some point. If the buyer was not in possession, it's hard to imagine that the intent of the seller was that the delivery condition could be satisfied any time over the next 10 years. Usually the seller will specify: "Blackacre is yours if you pay me $1 million no later than 30 days from today." (or some other time period). During that time period, the buyer is treated as treated as the equitable owner and can obtain specific performance of the contract if the buyer is ready, willing and able to perform.
3) Can CC&Rs be considered "encumbrances" on the property, making title unmarketable if they aren't removed or agreed to? Are encumbrances limited to interests in the property, such as an easement, or can they include CC&Rs? Easements and CC&R's are encumbrances.
Technically, any encumbrance renders title unmarketable. However, some courts might be willing to find that CC&R's that have no negative effect on the value of the property do not render title unmarketable. A seller of a condominium should provide in the contract that: "Seller will provide marketable title, subject to CC&R's of record, provided however that buyer shall have the right to review and approve any such CC&R's within 3 weeks of this agreement."
4) Even if CC&Rs are not encumbrances, a covenant limiting house size to 3 inches in the title would qualify the title as "unmarketable" because a reasonably prudent purchaser would not accept such a title - Correct?
When L breaches an express promise in the lease and T remains in possession, is T still liable for: rent? damages?
Yes. A failure to pay the rent gives L the right to possession in an unlawful detainer for nonpayment of rent. There are only a few exceptions that the courts & legislatures have carved out: Breach of the Warranty of Habitability, Repair & Offset statutes.
Is regulation of a noxious use always ok (ie: never a taking)?
I don't believe this is true. The character of the government action (regulation of a noxious use) is just a factor. Keep in mind that a landowner may have strong IBE's that outweigh the fact that the use is "noxious." For instance, suppose a cattle feedlot starts up in 2002 at a cost of $14 million. Just two years later, a developer builds a 1,000 unit residential development nearby. The city counsel then re-zones the feedlot "R-4" residential only. The feedlot may be a "nuisance" or "noxious" but the strong IBE's may result in this being considered a taking.
As far as the difference in the courts' decisions to drop the PLV when considering "spot zoning" in the cases of State v. Rochester and Fasano does this show that the courts in general are split and that the U.S. Supreme Court has never ruled specifically on this issue? There is a split in the jurisdictions and the Supreme Court has not ruled on this. Also, in general, do the court drop the PLV when considering Variances and CUP's?
This is a good question. Court's tend to look more closely at the issues when the action is not legislative in character. When variances are granted, courts tend to review the grant closely. Where variances are denied, the courts tend to respect the discretion of the administrative officers, looking only to see if there was an abuse of discretion.
Air and water pollution come to mind. There are times that pollution does not rise to the level of a nuisance, yet landowners have come to expect that pollution can be regulated. Perhaps another example is salt-water estuaries. In some states, these areas have never been developed and landowners may have come to expect that they cannot use these areas for development.
My Q is that you used the term "implied reciprocal servitude" instead of "implied reciprocal NEGATIVE servitude" on the model answer of the first homework assignment... Why? I know that it is obvious that the restriction on the hypo is something that prevent someone to do st. But don't we still need to talk about "NEGATIVE"?
Whether the servitude was negative or positive was not really an issue in Sanborn v. MacLean. After the case of Neponsit, it is no longer a serious issue as to whether or not a servitude is negative or positive, so long as it touches and concerns the land.
Is this correct? Present covenants do not run with the land, but we really don't care that they don't because today no one should or does really rely on warranty deeds anymore and rather gets title insurance. Also, going through your slides, I noticed that you didn't discuss short form deeds today. Should I be concerned with those slides? I assume not since you did not discuss them. Thank you for your help.
We have discussed short form deeds in earlier classes. Yes, the traditional view was that present covenants don't run. This was based on the common law antipathy towards the transfer of "choses in action." In modern times "choses in action" are freely transferable, so there is no logical reason that they can't run just as easily as future covenants but the issue doesn't come up that much. No rational buyer would rely solely upon the warranties in some earlier deed in the buyer's chain of title.
Does actual partial eviction have a different remedy than constructive partial eviction? I remember you mentioning that a tenant can withhold rent if there is an actual partial eviction, but it seems that it may not be the same for constructive... can you help?
There seems to be some mention in some student outlines that a partial constructive eviction does not give rise to the same remedies as a partial actual eviction. This does not make any sense to me. An eviction, actual or constructive, is an eviction. The remedy should be the same. At common law, a landlord who partially evicted a tenant could not collect rent, since the landlord could not "apportion his wrong." Of course, the landlord could collect the fair market value of the premises actually retained and used by the tenant. If this is the rule for actual partial eviction, it should be the same for constructive partial eviction. There is no theoretical or practical reason to distinguish between actual or constructive eviction regarding the remedy.
When T1 sublets to T2, is there any previty of estate or previty of contract between T1 and T2?
Yes & yes. There is a new lease between T1 and T2. So there is both and estate and contractual relationship between T1 & T2.
When T1 assigns to T2, is there any previty of estate or previty of contract between T1 and T2?
There is previty of contract between T1 and T2 (the contract regards the assignment of the lease from T1 to T2)
Under the Repair and Offset Statutes - can a T move out and stop paying rent if the LL does not fix the problem? (My instinct is that a T can only do that if the statute allows for it - so I may have just answered my own question).
Yes, you've answered your own question. The Repair & Offset statute offers a specialized remedy for a specific circumstance. To terminate the lease, T has to show the breach of some material obligation expressed (or implied) in the lease.
2) Under an assignment - does T2 have and duties or obligations to T1?
Not under the lease. However, the assignment document is a contract and might contain obligations running from T2 to T1 (such as the obligation to pay for the assignment).
What is the effect of a tenant assuming a sublease? Is he is contractual previty with T1 or Landlord? If in previty with T1, T1 sues subleasee if he defaults? (And T1 still must pay L for rent?) If in previty of K with T1, Landlord can sue T2 if he proves 3rd party beneficiary?
I don't really understand your question. A sublessee can't "assume" a sublease. There is neither a contractual nor estate relationship between L and T2. T1 and T2 have a completely new estate and contract relationship.
Should I take AIllegal Lease@ out of the outline? We spent all of 5 minutes on this topic in class (Below is what I have outlined from your lecture and D&K). It says you don=t have to pay rent in these situations, but how can this be true if it is not one of the listed affirmative defenses to the unlawful detainer action (I looked at the Aanswer@ form you directed me towards).
In the case of Edwards v. Habib, L sought to evict T for non-payment of rent. T alleged as a defense that the lease was illegal and no rent was due. T succeeded. Since L was asserting non-payment of rent as the grounds for the unlawful detainer action, T's defense made sense. L cannot assert non-payment of rent if the lease is illegal. L would have to commence another unlawful detainer, alleging some ground other than non-payment of rent.
Waste: It appears that, so long as it is not put in the lease as an express covenant, according to Black's definition of "ameliorative waste," it is not really "waste" at all, and the courts will not consider T as violating a duty to the L not to commit waste by doing something which changes the character of the structure in a "good" way. Seems to make sense, but throws it up in the air whether things should be considered "improvements," or "destruction"...I guess that is what a lease is for.
Yes, ameliorative waste may be allowed under some circumstances. We won't be studying the waste doctrine in detail this semester. You probably covered this when you discussed life estates and the obligation of life tenants to care for the property during their possession.
I am a little confused about T3's liability in the hypo- how is it T3 can "assume" the lease from T2, when T2 was only in previty of estate, and not contract. Spoken differently, how is it T3 can assume more from T2 than what T2 actually has?
question. Very, very sharp reading of
the facts & the question.
Keep in mind that T3 is assuming the contract,
not the estate. Third party guarantors often assume liability under a contract
they are not a party to. So, T3 is agreeing to assume contractual liability
under the original contract between L and T1. Indeed, the assumption agreement
would read: "I, T3, do hereby assume liability under that certain lease
After my discussion with you
today I am trying to fill in some of the gaps within my outline. I am curious
as to the appropriate remedies available to a person who is denied a variance.
I have that the person may argue that he has a vested right and is entitled to
just compensation i.e. similar to
Compensation is not a remedy for denial of a variance. The court would reverse the denial of the variance and, in some cases, issue a writ directing the issuance of the variance.
We were in a study group talking about property and we had a few questions come up. With partial eviction since the tenant is not required to move out, can the tenant stop paying rent or pay a portion of the rent and wait for the landlord to institute unlawful detainer proceedings? We were thinking in relations to using the implied warranty of habitability as an affirmative defense to why you did not pay the rent at all. We are unclear with partial eviction what the tenants remedies or options are. If you have a moment could you please clear this up?
If there is an actual partial eviction, the tenant has been physically ousted from a portion of the premises by the landlord. For example, T is leasing a 4 room apartment and the landlord bars entry to one room. The rule was, and remains, the tenant is no longer obligated to pay any "rent" since the landlord cannot apportion his wrongs. So, if L brings an unlawful detainer for non-payment of "rent," L will lose. L is left with an action for quantum meruit.
I'm not sure if you are also asking about partial constructive eviction. Are you?
a.) Unlawful Detainer: What are the Only Defenses Allowed? We have 2...(1) Illegal leases, or (2) violation of implied warranty of habitability? Or ONLY that you have paid the rent?
Traditionally, there were no affirmative defenses. In an unlawful detainer action for non-payment of rent, the only defense available was an allegation that the rent had been paid. Over the last 20-30 years, several affirmative defenses have been permitted. See Allegation 3 on the Unlawful Detainer Answer on the website. We have seen in class that there are 3 defenses that, in many states, may be raised as defenses to unlawful detainer action for non-payment of rent: the Warranty of Habitability, Retaliatory Eviction, and Repair & Offset Statutes.
2.) Waste Doctrine: T moves
into an apartment and the apartment has cheap, fake marble counter tops. T has
a professional come in, rip out the fake counter top, and installs a brand new,
You studied this last semester. Is this voluntary waste? If it is voluntary waste, is it "ameliorative" voluntary waste? Should residential tenants be allowed to make substantial changes in the fixtures in the apartment without the landlord=s consent?
3.) You cannot create a periodic tenancy for more than 1 year w/o violating statute of frauds, correct? For example, a periodic tenancy with a period of 2 yrs.
Correct. But some states have a 3-year statute of frauds for leases.
4.) L=s option to consider T a T at sufferance or Periodic T: L has an option to consider T at sufferance & institute eviction proceedings (T liable for FMRV for the time until kicked out), or treat as a periodic T (Liable for continuation of lease as a periodic estate). Question: What is the period? In CA we know it is the frequency with which T makes his payments (i.e., Monthly on a 4 year lease), but at CL?
This is the $64 dollar question.
What should the period be? Why should it matter how the rent was paid in the
lease? Should we have a different outcome in
1. Is it true to say that when premises are habitable at the beginning of the lease and then become uninhabitable (breach of implied warranty of habitability) sometime during the term of the lease, that the "Hilder" calculation of damages and the majority calculation of damages are the same?
For example, under "Hilder", damages = (value as warranted - FMRV as uninhabitable). Under majority damages = (value of rent - FMRV as uninhabitable).
Yes, this appears to be correct to me. I would restate the formulas as:
Hilder = Value if Habitable - FMRV as uninhabitable
Majority = Rent stated in lease - FMRV as uninhabitable
2. Consider this hypo: T moves into the "habitable" premises at $700 per month. 2 months into the term, the premises become "uninhabitable" and are valued (FMV) at $500 per month.
Under "Hilder" - damages = (Value as warranted ($700) - FMRV as uninhabitable ($500)) = $200 per month. (I am assuming that the value as warranted is the same as the value of the premises as habitable, which was $700 per month).
Under majority - damages = (Rent ($700) - FMRV as uninhabitable ($500)) = $200.
Is this analysis correct or am I missing something? It seems the only time the Hilder and the majority courts differ in regard to calculation of damages is when the premises are uninhabitable from the beginning of the lease.
Yes, that is correct. This is a BIG difference since in many cases where the WH is asserted the premises were uninhabitable at the outset of the lease term.
2) If a T signs a lease agreement where the premises are uninhabitable from the outset, does the T have any "real" remedies? If he sues, he will only get (rent - FMV as uninhabitable), which usually is NOTHING. If he calls the building code authorities to report the condition, the landlord will either do nothing and pay a fine or will fix the premises, making them unaffordable for the T to stay in. It seems that the courts are perpetuating "slums" - of course this could be a good thing, depending on a person's perspective.
Indeed, society doesn't do
all that much to remedy slums. In a free market economy, supply (which is low)
and demand (which is high) in urban centers will often result in only
low-quality, sub-standard units available for poor people. The situation COULD
be remedied but it would take public funds and commitments which, apparently,
are not politically viable. Every now and then in
3) Is this correct?: The only option for a T who wants to claim constructive eviction is to terminate the lease, move out and withhold rent.
Yes. Otherwise, a T can't possibly argue that L's actions were the equivalent of a physical ouster.
Can T move out, terminate the lease and recover damages for the time period he possessed the premises (i.e. - damages he incurred during his time of possession as result of L's breach)?
Yes. If L has breached the CQE, then L is liable for damages.
I have been reviewing the Covenant/ES material with other students, and there seems to be confusion over when horizontal and vertical previty are required. Please let me know if the following is correct:
Burden at Law (Covenants): Full horizontal and vertical previty required
This is clearly true for horizontal previty at common law. Keep in mind that a modern jurisdiction might dispense with this requirement (it serves no rational economic or other purpose). Just as the court of equity disregarded horizontal previty in Tulk v. Moxhay, modern courts might be willing to dispense with the requirement in a legal action for damages.
With respect to vertical previty, the successor had to succeed to the same estate as the original burdened party. So a tenant would not be bound, even if the tenant had a 50 year lease! Only the landlord/owner would be liable for damage.
Burden at Equity (ES): Horizontal not required; Vertical not required
Horizontal previty is not required. That's the rule in Tulk v. Moxhay and it makes sense. After all, if the original parties agree that they and their successors should be bound by a residential covenant, there is no reason to require them to use a fictional strawman to create horizontal previty. However, vertical previty may still be required. Imagine the following:
1. A landlord leases to a tenant (T1) for 10 years and T1 promises to use the property for residential purposes. T1 then subleases the property to T2 for 1 year. T2 is not in full vertical previty with T1. T2 begins using the property for a law office. Can Landlord enjoin T2 on the theory that the covenant "runs with the land"? Probably not, since T2 and Landlord are not in previty of estate. Keep in mind that the landlord can terminate the primary lease for breach of the covenant (and/or sue T1 for damages) -- but cannot sue T2.
Benefit at Law (Covenants): Horizontal not required; partial vertical required (but can't benefit run to adverse possessors)
Benefit at Equity (ES): Horizontal not required; Vertical not required
Horizontal clearly not required. For the benefit, it will depend as outlined above. An adverse possessor should be able to enforce even though not technically in vertical previty of estate. However, a sublessee should not be able to enforce (the remedy of the sublessee is to proceed against the sub-landlord).
Question...on pg 7 of the supplement you state that the law courts of England state that there needed to be Previty for the covenant between P and Elm to be enforced against subsequent owners. This could only happen if it was landlord-tenant. Therefore there were unwilling to enforce the covenant between P and Elm against subsequent purchasers. However, while reading the case I am of the belief that the court found in favor of P - granting an injunction to restrain D from breaking the covenant. I can't seem to balance the supplement and the case. Perhaps you are implying that there is an equitable servitude and that is why the injunction is being granted (as there was intent, touch and concern and notice?) Hope that the issue I am grappling with is clear to you because it isn't really to me...thank you in advance for any clarity you can offer.
The materials on page 7 are consistent with Tulk v. Moxhay. I've emphasized some of the phrases on Page 7. Read it again and focus on the emphasized language. If that doesn't help, let me know.
Tulk v. Moxhay B Introductory Notes
the law courts of
in the law courts of
I'm not clear on the distinction b/t equity courts and courts of law. I understand the differences between remedies in terms of equitable v. compensatory, but are there still distinctions made today about equity courts v. courts of law?
Did you say that today also (carried
Do I have this right: If you want injunctive relief all you need to prove is: (1) parties intended it; (2) subsequent purchaser had notice; (3) valid land-use plan?--as otherwise it would be unfair and impossible to enforce the goal of increasing and stabilizing the value of land?
For injunctive relief, we discussed four elements that must be satisfied to enforce the burden of a covenant against a successor to land. Horizontal previty and vertical previty are not required for the burden to run to a successor - so I think you're missing an element.
You left a question: what is the function of 1951.4? Since modern law rejects no mitigation law and no mitigation law is too harsh to T, 1951.4 is useless (plus, when lease term is long, no one would wait that long under (a) ) Am I correct?
You are not correct.
Statutes always supercede judicial opinions (unless the statute is
Notwithstanding 1951.4, most landlords will elect 1951.2 and seek damages as their remedy. After all, most tenants are judgment proof and the landlord faces a harsh risk if the landlord leaves the property vacant, waits several months or years, and then sues for the rent.
In general for all the hypos,
I thought there was no horizontal previty between
I think you're off point
here. Horizontal previty of estate must exist at the time of creation of the
original promise by
For example, for Number 1,
In question 1 the issue is
whether or not
Professor; I have a quick question regarding covenants. When arguing implied reciprocal promise or third party beneficiary to satisfy the enforceable promise requirement, is it correct to say those theories are only allowed in equity?
Yes, these are equitable theories of creating an enforceable promise.
I got the rule that was established in Sommer v. Kriedel: The landlord has a duty to mitigate his damages after a tenant has vacated the premises and not paid the remainder of a lease.
However, if the landlord does has this duty, and if a tenant vacates the unit and does not pay the year left on his or her lease; suppose the landlord does mitigate the damages and finds a suitable tenant to take over. What is the landlord entitled to, the year left on the lease from the previous tenant or nothing? Because if the landlord gets the proceeds from the new tenant and the unpaid rent from the previous lease, that seems unfair. At the same time, it almost seems like the tenant is off the hook for not paying the remaining rent on his or her lease, if the landlord mitigates. I did not see the answer to this in the case or other readings.
The rule is the same as the contract rule: the landlord is entitled only to the difference between the rent and the amount that the landlord could reasonably mitigate by re-letting to a new tenant. So, suppose that the first tenant ("T1") agrees to pay $400 per month for 1 year and abandons. The fair market rental value is now $300 per month and L can easily re-let the apartment to T2 for $300. So, the L's damages are $100 x 12 months. Note that this formula assumes that the L will exercise reasonable efforts to mitigate. It does not matter whether the L actually finds a replacement T or not. If the FMRV is $400 per month, then L isn't really suffering any damages at all and gets no recovery.
I have been looking through commercial outlines which said the majority modern law rule is that a transfer will be a sublease if a reversion/right of re-entry is retained, and that the minority rule is to look at intention of parties. I understood it in class that modern courts look at intention first, did I misunderstand or have courts changed since the outline has been modified. If you could clear this up I would appreciate it. Additionally, are there any particular published multiple choice questions (i.e., exam pro) that you feel would best prepare me for you final exam? Thank you.
I'm not exactly sure what your question is. Assume for a minute that the "majority" viewpoint is that the sub-lessor must retain a one-hour reversion to create a sublease and that this "majority" viewpoint is reflected in the commercial outlines. Do you think a modern, intelligent judge would be willing to simply adopt that position without asking why? What policy reason(s) does it serve? How did this requirement come into existence? Does it still make sense to require it?
Whether it=s the majority rule or the minority rule doesn't really matter. What matters is whether or not it's a sensible rule that reflects modern policies and justifications.
Which commercial outline
are you working with? Does it make sense in light of the cases we've read?
Let me know if that answers your question or not.
Thank you, I believe you did successfully answer my question. To answer you question I was working with Gilberts, and although I don=t have Gilberts in front of me I interpreted the Ernst v. Conditt viewpoint to be an alternative view rather than simply looking for the existence of a reversion. Where as you are saying, that rather than applying the reversion rule Ablindly,@ courts will look at the intention of parties (what is in the Afour corners@ of the document is not determinative). Thanks for you help, let me know if I have misunderstood you in any way.
Courts will look for the objective
intentions of the parties in the four corners of the document, taking into
account the surrounding objective factual circumstances. A modern court will
interpret the following document to be a sublease even though there is no
reserved time period for T1. The primary lease is from today through
"Sublease. I T1,
landlord, hereby lease the property to T2 from today until midnight,
I had planned on coming to
see you this morning about an old exam that I thought was incorrect after
Tahoe, but after looking at the model answer a second time, I saw that your
Total Takings analysis was merely something you discussed pro's ands con's to,
along with your balancing the factors analysis, which is what I did as well.
Thus, I was a little hasty in my decision that the model answers
was in some way wrong (I guess that shows why I am a new comer to this
stuff!). Any way, I believe I have figured out my own answer and if I need any
more help I will be sure to come by, thanks again! I'm glad you were able to
resolve the question. I reviewed the question and answer as well. Tahoe doesn't
affect the analysis at all. In the exam question, a 97% reduction is about as
close as one can get to the
I'm glad you were able to
resolve the question. I reviewed the question and answer as well. Tahoe doesn't
affect the analysis at all. In the exam question, a 97% reduction is about as close
as one can get to the
If a landlord breaches the
implied warranty of habitability, can the tenant withhold payment of future
rent? In class I thought we said the answer to these questions was no, but
Yes, the tenant can withhold rent in most states and
still not be evicted for non-payment of rent.
See the Official
In most states the tenant is allowed to reduce the rent by the amount of the tenant's damages if the Warranty of Habitability is breached. Read CCCP ' 1174.2(a)(4) in the Supplement at page 87. And if the tenant makes the repair himself at his own expense, can he deduct the cost from future rent?
Not at common law but some
states have "repair & offset" statutes. See
And one more question: if a lease is silent on the landlord's duty to repair, does this imply that the landlord is responsible, and if so, to what extent? Major repairs affecting habitability or all repairs?
Sorry, I don't quite
understand the question. If the lease is silent, then it's the tenant's
obligation to make repairs at common law. The only exceptions would be: (i) an
implied warranty of habitability; (ii) statutory requirements (landlords are
required by statute to make certain repairs). If the lease is silent and the T
is relying on the Warranty of Habitability, the scope of that warranty (which
repairs are included) is the subject of Friday's class. You can see the scope
I just had a follow up
question regarding the Landlord/Tenant/Harry hypo from class today. I understand the whole
concept of L not having an estate to convey. I just wanted to clarify one thing
though. Of course,
Rule regarding T's obligation to pay rent when L breaches promise in lease:
Common Law‑ T must pay rent even when L fails to perform his promise bc rent arises out of interest in property conveyed to T, not out of K. As long as L conveyed interest to T, T is obligated to pay rent. If T abandons property, still liable to L for rent as long as the term.
Modern Law‑ Today, leases are viewed more as K‑if L doesn't perform his side of K, T doesn't have to pay rent.
Yes, this seems correct to me. We will discuss this in more detail in class.
I have a question for you. I got the rule that was established in Sommer v. Kriedel: The landlord has a duty to mitigate his damages after a tenant has vacated the premises and not paid the remainder of a lease. However, if the landlord does has this duty, and if a tenant vacates the unit and does not pay the year left on his or her lease; suppose the landlord does mitigate the damages and finds a suitable tenant to take over. What is the landlord entitled to, the year left on the lease from the previous tenant or nothing? Because if the landlord gets the proceeds from the new tenant and the unpaid rent from the previous lease, that seems unfair. At the same time, it almost seems like the tenant is off the hook for not paying the remaining rent on his or her lease, if the landlord mitigates. > I did not see the answer to this in the case or other readings.
The rule is the same as the contract rule: the landlord is entitled only to the difference between the rent and the amount that the landlord could reasonably mitigate by re‑letting to a new tenant. So, suppose that the first tenant ("T1") agrees to pay $400 per month for 1 year and abandons. The fair market rental value is now $300 per month and L can easily re‑let the apartment to T2 for $300. So, the L's damages are $100 x 12 months. Note that this formula assumes that the L will exercise reasonable efforts to mitigate. It does not matter whether the L actually finds a replacement T or not. If the FMRV is $400 per month, then L isn't really suffering any damages at all and gets no recovery.
1) A covenant can't generally run with the land unless both burdened and benefited properties exist. An exception applies when the burden is in gross and the benefit attaches, b/c the benefit helps the alienability of the benefitted property. What does "in gross" mean in this context?
There's a case called Eagle Enterprises v. Gross. In the case, all of the homeowners in a rural development agreed that they would pay annual fees to a Water Co. to provide water. The water co. operated a well for the homeowners. In the case, the covenant was enforceable even though the water co did not own any real estate that was benefitted. This was considered a covenant in gross (there is no directly benefitted parcel).
I had some question about
last Fridays class on Conditional Use Permits and the
issue of discretion. I asked in class if zoning officials were ever allowed to
make discretionary decisions and you replied that in the case of variances,
yes. You elaborated that any sort of discretionary decision on a special
exception (CUP) had to be made at a higher, elected level like the City
Council. Prior to coming to law school I worked as a Planner in a
Gosh, what a great question. The case we dealt (Cope) concerned the delegation of more than the normal types of discretion granted to city agencies. The agencies were given broad discretion to decide whether or not apartment complexes could be allowed anywhere in the city "in the public health safety & welfare" with little guidance from the legislature as to the factors to be considered regarding location, types of apartment complexes, density, etc. The court held that delegating this broad, legislative-type decision-making goes too far.
Your practical experience
is consistent with what we discussed in class, as well as my own experience
QUESTION: In Cope the court
struck down the part of the ordinance which allowed the Zoning Board to grant
an exception if proven to be in the PHSW because the Zoning Board does not have
that power. In
This is an excellent question and the primary subject of Friday's class. I think you're on the right track here. We'll clear this up a little bit in class.
I know this is for next class but I am trying to answer the question of remedies that are available and I'm getting stuck - this is damages or injunctions and not causes of actions correct. So inverse condemnation is not a remedy. All I can seem to find is the value of the land at the time the taking occurred and remedy (if they still have the land) would be the difference in depreciation and not a dip in value from preliminary activity. Is that it?
I'm not really sure what you're asking above. The issue we are facing in First English is, IF there is a regulatory taking, what remedy is available to the landowner. So, in First English the Court assumes that a regulatory taking has occurred (just for purposes of resolving the remedy issue) and faces the question: What is the remedy when a regulatory taking has occurred.
Is the regulation of a noxious use never a taking? I believe the answer is yes but when analyzing the other factors and the diminution of property value, cases on that point are when it was a regulation of a noxious use - Hadachek.
If the answer was yes, this would then be a per se, determinative test. It's just a factor (actually, a sub-factor under character of the governmental regulation). It seems to be a strong factor in finding that a taking has not occurred, even if the degree of diminution of value is very high (Hadachek, Goldblatt).
In the First English case the Plaintiff's second cause of action was "cloud seeding," what does cloud seeding mean?
Cloud seeding is a
technique for forcing clouds to rain.
(Totally random) For all the people that were selling parts of the Discovery space shuttle on ebay, I thought that was Government property -- how do they go about getting that back...what is the rule for "stuff" that falls on your land?
This is a complicated issue outside of the scope of our class. There are criminal laws governing the possession and/or sale of these items.
I'm reading HFH and am confused about the meaning of inverse condemnation. Is this definition correct? An action brought by a property owner seeking just compensation for land taken for a public use, against a government or private entity having the power of eminent domain. Is it simply the name for the action when the government has zoned your property and you don't believe it was a valid exercise of police power? So, rezoning is not a taking?
Your explanation of Inverse Condemnation is fairly close. I would drop the last two sentences and add:
AAn action brought by a property owner seeking just compensation for land taken for a public use, against a government or private entity having the power of eminent domain. In an Inverse Condemnation action, the landowner is commencing a proceeding alleging that the power of eminent domain has been exercised by the government and the landowner is entitled to compensation.@
It’s "inverse" because, usually, the government commences the eminent domain proceeding. It's just another way of asserting that a regulation of land goes so far as to constitute the equivalent of a physical taking of private property for public use ‑‑ and that the government should do this by eminent domain & pay for the property it's taking.
Is it safe to say that generally, "police power" is used to protect the public from a harm or a nuisance and is not compensable, while government "regulation" enforces a public benefit, and needs to be compensated for? I'm just trying to conceptualize this for myself, and was wondering if there really was any difference between police power and regulation, or if the terms were generally interchangeable
I don't think these statements are accurate. The police power is the power to legislate in furtherance of the public health, safety & welfare. Legislation controls many activities that are not "nuisances."
A separate question, is whether or not compensation is required for individuals who suffer loss as the result of the regulation. In answering this question, factors such as the character of the harm being regulated may be important.
What is the difference between the covenant/Equitable servitude running "with the land" and "with the estate"? And how does it relate to vertical previty?
Covenants at law traditionally hitched a ride on the "estate" so there had to be previty of estate for the covenant to run. For the burden to run, the previty had to exist at the time of creation ("horizontal") and each time the burdened land was transferred ("vertical"). So, an adverse possessor of the burdened land would not be bound since title was not acquired by the formal conveyance of an estate. On the other hand, servitudes work like easements and run with the land, regardless of the presence or absence of previty of estate.
2) Enforceable Promise: What is required for the enforceable promise element to be met for a) Covenant, b) Equitable servitude, and c) Implied Reciprocal Servitude to run to successors? Specifically, does a covenant have to be in writing for it to run to successors? (I think what the students want is a clarification on the difference in requirements for the Enforceable Promise element under each different circumstance).
Covenant or Servitude: There must be a formal document in writing that creates the legal estate upon which the covenant can hitch its ride -- or that evidences the creation of the servitude. The only known exceptions to this rule is the "implied reciprocal servitude" that the Michigan Supreme Court (unwisely) allowed to be created in the case of Sanborn v. McLean.
It is sometimes possible for a party to use a "third party beneficiary" theory to find an enforceable promise but in those cases the promise between the promisor and promisee must be in writing.
3) Hypo: A is a developer and sells land to B with a covenant (B promising A) for residential use only, then B sells to C, who starts to use the land for commercial use, violating the covenant - A sues. A has to prove that the burden of the covenant runs to C, but does A also have to prove that the benefit of the covenant runs to himself (A) even though he was an original party to the covenant?
Of course not. Right?