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True owner has good title unless the property was abandoned.

If the item is found by a finder on someone else's property: by statute in Westmoreland, in a dispute between the landowner and the finder, the landowner will win if the finder was trespassing at the time she found the object. If the finder is not trespassing and is there with the owner's permission, the landowner wins if it's in the house or if it is embedded in the property. If it's in a place that's open (a landowner's field) or in a public place (a bar), the property goes to the landowner or the business owner, under the theory that she would be in the best position to find the true owner if the true owner comes back to claim the item.
Nuisance (considerations)(1) extent of the harm; (2) character of the harm; (3) economic and social value of the conflicting activities; (4) suitability of the particular use or enjoyment invaded to the character of the locality; (5) ability of either party to avoid conflict and the practicability and fairness of making the party do so.Private Nuisance DefensesPlaintiff consented to or acquiesced to the nuisance (laches may prevent equitable relief); statute of limitations; plaintiff is too sensitive; coming to the nuisance (Westmoreland rejects protecting "first in time" use as done historically and only considers "coming to the nuisance" as one factor in determining reasonableness); and right-to-farm statutes (existing in Westmoreland).Malice (Fountainbleau)Malice is irrelevant to the general rule of damnum absque injuria unless it is the sole motive.dAdverse Possession (Elements)(1) actual, (2) exclusive, (3) open and notorious, (4) adverse or hostile under the color of title/claim of right, (5) continous, (6) for the statutory period. As an true owner would, exclusive of the true owner, so that the true owner is put on notice, and non permissive of the true owner. Westmoreland: 15 years under claim of right, 10 years under color of title (tolling/tacking)Color of TitleConstructive possessionApproaches to Determining Adverse or HostileObjective tests: (1) an objective test based on possession/claim of right (Westmoreland; state of mind is irrelevant, just must lack permission). Subjective tests: (2) intentional dispossession (one knows she is trespassing and means to do it); (3) good faith (no intention to trespass).Adverse Possession Standard of Proof (Westmoreland)Clear and convincing evidencePrescriptive Use (Elements)(1) actual; (2) non-exclusive (most courts drop this requirement); (3) open and notorious; (4) adverse and hostile under claim of right/color of title; and (5) for a statutory period. Westmoreland does not require acquisence.Tenancy in Common (characteristics)Default creation, no surviviorship, unilateral termination, unilateral encumbrances.Joint Tenancy (characteristics)creation typically requires unity of time, title, interest, and possession; surviviorship; unilateral termination; and unilaterial encumbrances (but in Westmoreland can't encumber a co-tenant's interest on survivorship).Tenancy by the Entirety (characteristics)creation is only for married couples (and Westmoreland requires specific intent); survivorship; no unilateral termination unless death or divorce; and no unilateral encubrances in Westmoreland.Partition (rule)Westmoreland will uphold agreements not to partition (by cotenants or grantors) if they are reasonably limited in time and have a reasonable purpose. Majority rule. Traditionally void as restraints on alienation.How can a tenant in common get out of such a tenancy?By contract or judicial partition. Courts may (a) order property partitioned in kind (physically divided among co-owners). (b) if not feasibe or appropriate, the corut will order the property to be sold and the proceeds divided among the co-owners in proportion to their ownership shares.Joint Tenancy and Severancejoint tenancy is severed if one joint tenant trasfers his interest during his lifetime. Methods: sale (including to oneself), partition, or agreement. A lease or mortgage does not sever a joint tenancy in Westmoreland.Degrees and Licenses (rule)Degrees and licenses are not property (in Westmoreland and majority rule), but permit the valuation and division of enterprise and personal goodwill upon divorce. Minority rule (NY): degrees and licenses are property.What type of property state is Westmoreland?Community property.Separate PropertyProperty acquired before marriage, or during marriage through gift, devise, bequest, or descent, is the sole property of the owner spouse who may use or transfer it freely, as if the owner were unmarried.Community Propertyearnings of either spouse during marriage; all property aquired with those earnings. Each spouse owns a one-half undivided interest in all community property.Rules against Perpetuities (what is does apply to in Westmoreland)(1) contingent remainders, (2) executory interests, (3) vested remainders subject to partial divestment, and (4) options to buy and rights of first refusal/preemptive rights. Historically, vested remainders subject to partial divestment classes were treated as one interest under the rule; in Westmoreland, only the contingent remainders will be destroyed. Many jurisdictions don't apply the rule to options to purchase that are included in commercial leases. Applies to preemptive rights/rights of first refusal even though there is some evidence that this does not impede marketability and may increase value.Modern Reforms to the Rule Against Perpetuities(1) uniform/statutory rules (Westmoreland); (2) reformation/cy pres; and (3) wait and see. Uniform/statutory rules: sets up a 90-year period from the moment of conveyance to 90 years and gives the opportunity for the interest to vest or fail. Reformation/Cy Pres Doctrine: if the interest ends up being violated, the court may rewrite the interest to make it consistent with the grantor's intent but where it doesn't violate the rule. Wait and See: waiting until the transfer unfolds to determine whether and interest will vest; don't worry about contingencies until it is necessary to do so.Uniform Statutory Rule Against Perpetuities (Westmoreland)Adopted in Westmoreland and more than one half of states. Would validate future interests that otherwise violate the rule if the interest vests at any time within 90 years of the date of its creation. The 90 year wait and see provision authorizes courts to refor the deed in accordnce with the transferors' manifested plan of distribution and also applies to the grantor's future interests following defeasibl fees (possibility of reverter and right of entry).Johnson v. M'Intosh (1823)held that discovery of land gives the (white/European) "discoverer" exclusive right to settle, possess, and govern the land, and the absolute title to the subject to certain rights of occupancy only in the natives.Discovery Doctrinea sovereign government (specifically a European power) gains sovereighty to the land it "discovers" and gains the exclusive right to extinguish the "right of occupancy" of the indigenous occupants. Excuse for doctrine: dehumaization of Native Americans.Law of Capture for Oil and Gasone has a property interest, but not a cognizable property right to, oil and gas until capture has been attempted.Correlative Rights Doctrinethe property rights for one are correlated with the property rights of others.Conversionwhen a plaintiff's possessory or ownership interests in personal property is interfered with by defendant.Trespassan unprivileged intrusion on property possessed by another. Intent is met if defendant engaged in a voluntary act.Trespass (defenses)(1) consent, (2) necessity, or (3) otherwise encouraged by public policy.Disabilities (adverse possession)infancy, incompetence, imprisonment, and absence from the state (depending, usually military service).Tackingadding successive periods of adverse possession by different persons.Tolling"pausing" the statute of limitations duirng certain time periods so it cannot be used against the true owner.Adverse Possession (defenses)Permission, attempted ejectment.Adverse Possession (justifications)efficiency/encourages transactions by reducing uncertainty about what's owned; prevents valuable resources from going unused; protects the rights of the adverse possessor of settled expectations and personal attachment; the adverse possessor values the land more than the true owner; the adverse possesor's interest is ultimately nonfungible; protects the reliance interest of the adverse possessor.Easementsare formal, create a right, become an interest in land, are subject to the Statute of Frauds, and are transferable.Express Easements (elements)(1) in writing; (2) with intent; (3) notice (actual, inquiry, or constructive)Appurtenant Easementscreates two estates, a dominant/benefited estate and a servient/burdened estate.In Gross Easementsonly one parcel and one servient/burdened estate because the benefit is with a person/agent rather than the dominant estate. Westmoreland will not allow the transfer of in gross easements through wills.Ways to Terminate Easementsexpress release (through writing), by its own terms, merger or unity of title, abandonment, adverse possession or prescription, marketable title acts, and/or frustration of purpose.Right-of-Way (rule)Can be used for any reasonable purpose (in Westmoreland, also majority rule). Minority rule limits the broad application of uses for easements.Location of Easements (rule)Cannot be changed (in Westmoreland, also traditional rule), and the servient estate owner must obtain the consent of the easement holder to relocate it.Licensesinformal, do not creat a right, do not become an interest in land, are not subject to the statute of frauds, and are not transferable (with a few exceptions)."Runs with the Land"if A sells land with an easement on it to B, then the easement will still be on the land when B owns it.Easement by Estoppel (elements)(1) licensor's knowledge or reasonable expectation that reliance will occur; (2) reasonable reliance; (3) an easement necessary to prevent injustice.Easement by Estoppel (situations)(1) grantor did not intend to grant the easement, but the courts find that revoking license would be unjust because other conditions have been met; and (2) failed express easements.Granite Considerations (Easements by Necessity/Estoppel)(1) whether the claimant is the conveyor or the conveyee; (2) the terms of the conveyance; (3) consideration given for the conveyee; (4) whether the claim is made against a simultaneous conveyee; (5) the extent of necessity of the easement to the claimant; (6) whether reciprocal benefits result to the conveyor and the conveyee; (7) the way the land was used prior to its conveyance; and (8) the extent to which the manner of prior use was or might have been known to the parties.Easements Implied by Prior Use (elements)(1) two parcels previously owned by a common grantor; (2) the parcel previously used for the benefit of the other parcel is held in a manner that is appurtenant and continuous; and (3) the use is "reasonably necessary" for the enjoyment of the dominant estate.Easements by Necessity (elements)(1) the dominant and servient estates were formerly one parcel; and (2) at the time of the severance, the dominant estate became landlocked. No need to show prior use because this easement may lie dormant. Westmoreland/common law/Finn justification: promote the development of the property by preventing the property from being landlocked and therefore, taken out of the market. Restatement justification: effectuate the grantor's intent.Easements by Prescription (elements)(1) actual; (2) nonexclusive; (3) open and notorious; (4) adverse and hostile; (5) under claim of right or color of title; (6) for a statutory period. Westmoreland does not require acquisence as an element.Real Covenant (elements)(1) in writing; (2) touch and concern; (3) intent; (4) notice; and (5) privity. No notice required to benefit. Strict vertical privity required; no horizontal privity required to benefit. Remedies: damages or injunction.Equitable Servitude (elements)(1) in writing; (2) touch and concern; (3) intent; (4) notice. Relaxed vertical privity required. Remedy: injunction.Rule Against Benefits in Gross:traditional refusal to enforce covenants when the benefit is held in gross. An application of the touch and concern test. Justification: autonomy of the current land owners trumps the "dead hand" power of prior landowners.Horizontal Privityprivity between the original covenanting parties. An ongoing interest in the same land at the time of purchase and instantaneous at the transfer of property.Vertical Privityprivity between an original covenanting party and the successor(s) in interest to the original covenanting party.Real Covenants Benefits and Burdens RequirementsBenefits: writing, touch and concern, intent, vertical privity. Burdens: writing, touch and concern, intent, notice, horizontal and vertical privity.Equitable Servitudes Benefits and Burdens RequirementsBenefits: writing, touch and concern, intent, vertical privity. Burdens: writing, touch and concern, intent, notice, horizontal and vertical privity.Evidence of a Common Plan (for IRNS)(1) presence of restrictions in all or most deeds to property in the area; (2) recorded plat(s) showing restrictions; (3) presence of restrictions in the last deed observance by owners of similar developments of their land and conformity to the written restrictions; (4) language stating the covenants are intended to run with the land; and (5) recording of a declaration stating that the covenants are intended to be mutually enforceable providing buyers notice of the conditions, covenants, and restrictions (CC&Rs) applicable to the subdivision.IRNS Rights and ObligationsDeveloper must file a declaration and plat prior to selling the lots (at least constructive notice). Developer will be unlikely to sue unless the declaration allows the developer to sue and the declaration gives owners to power to amend the declaration. Owners can sue. Homeowner associations can sue if not a separate party but a representative body of homeowners.Davidson Factors for "Reasonableness" of Restrictive Covenants(1) intention of the parties when the covenant was executed, and whether the parties had a viable purpose which did not at the time interfere with existing commercial laws such as antitrust laws or public policy; (2) whether the covenant had an impact on the considerations exchanged when the covenant was originally executed; (3) whether the covenant clearly and expressly set forth the restrictions; (4) whether the covenant was in writing and records, and if so, whether the subsequent grantee had actual notice of the covenant; (5) whether the covenant is reasonable concerning area, time or duration; (6) whether the covenant imposes an unreasonable restraint on trade or secures a monopoly for the covenantor; (7) whether the covenant interferes with the public interest; and (8) whether even if the covenant was reasonable at the time it was executed, "changed circumstances" now make it unreasonable.Presumption of Validitypresumption of validity for the enforcement of contracts and agreemens.Methods of Termination or Nonenforcement of Covenantschanged conditions. relative/undue hardship, acquiescence, abandonment, unclean hands, estoppel, laches, marketable title acts, language in the instrument, merger. release, and/or prescription.Changed Conditions Doctrineonly changes that deprive the covenant of substantial beneift to the owner of the dominant estate count. Focused on the benefit to the dominant estate.Relative/Undue Hardship Doctrinedoes not allow an owner to escape a covenant merely upon proof of a great hardship; the hardship must be great relative to the benefit. Focused on the harm to the servient estate (but relative to the benefit of the dominant estate).Unclean Hands Doctrinewhen both parties "came to the table with unclean hands" because both parties violated a covenant.Lacheswhen one waits too long to bring a claim, but before prescriptive rights develop.Shelley v. Kraemer (1948)held that racially restrictive covenants are not enforceable by a court of law due to state action. Later (essentially) overruled.Fee Simple Absolutethe maximum possible estate or right of ownership of real property, continuing forever. O has nothing, A has a fee simple absolute and PPI, heirs have nothing.Term of Yearsa lease for a designated period of time. O has reversion, Ahas PP and if A dies the property would go to A's estate for the remainder of the term.Fee Tailan estate in fee that descends to the grantee's direct lineal heirs and through them to the direct lineal heirs of the next generation. O or O's heirs would get the estate if A's bloodline ran out. Majority of jurisdiction: get rid of fee tail and create a fee simple absolute. Minority of jurisdictions: allow the fee tail to continue for two generations.Defeasible Feesfee simple estates that can be terminated upon the happening of a stated event. Interest in the grantor. Fee simple determinable and fee simple after conditions subsequent.Fee Simple Determinable ("Word of Duration)a fee simple estate qualified by a special limitation. Language used to describe limitation includes the words so long as, while, or during. O has possibility of reverter, A has FSD and PPI, and heirs have nothing.Fee Simple Subject to Conditions Subsequent(1) a condition on the property; and (2) a right of O to come in and retake the property. O has a right of entry, A has a FSSCS, and heirs have nothing.Vested Remainder AbsoluteO has nothing, A has PPI life estate, and B has vested remainder absolute.Vested Remainder Subject to Open/Partial Divestmenta remainder in favor of the class where at least one member of the class has ascertained. O has nothing, A has a PPI life estate, B's existing child has a vested remainder subject to partial divestment, and B's possible unborn children have an executory interest.Rule of Conveniencethe class closes when the prior estate ends.Vested Remainder Subject to Total Divestmentvested remainder subject to a condition subsequent. O has nothing, A has a PPI life estate, B has a vested remainder subject to total divestment, and C has a shifting executory interest,Presumption Against Forfeituresif it is possible to intepret grant language to avoid a loss of property by the current owner, then courts will generally adopt this interpretation.Contingent Remaindersa remainder that takes effect only upon the happening of an event or condition that is not certain to happen.Alternative Contingent Remainderscontingent remainders are "alternative" when they each follow the same estate and when their conditions precedent are the opposite of each other, so that the vesting of one precludes the vesting of the other.Technical Approach to Present and Future Interests(1) classify the present possessory estate; (2) identify the limitations, if any; (3) is there a future interest? (4) Is the future interest enforceable? (5) If yes, has the trigger event occurred? (6) If yes, what is the legal effect?Springing Interestsinterests in favor of a third-party where there has been a gap in ownership from the prior estate. Possession takes place after the natural termination of the prior estate.Shifting Interestsinterests in favor of a third party that only comes into possession because it cuts short a prior estate, and it shifts to the grantee.Life Estatean interest in real or personal property that is limited in duration to the lifetime of its owner or some other designated person or persons. O has a reversion, A has PPI and is the measuring life, A's heirs have nothing after A dies because O has reversion.Life Estate per Autre ViewO has an estate that contains a reversion, A has PPI, B is the measuring life.Duties of Life Estate Holders to Future Interest Holdersduty to pay certain costs (interest on mortgage when the principal is paid by future grantee; pay taxes and insurance on property; etc.); duty not the commit waste.Rule Against Perpetuities (traditional)no interest is valid unless it must vest, if at all, within a life in being plus 21 years, plus a nine-month period of gestation.Rules Affecting the Transfer of Propertycommon law, modern statutory law (uniform rule against perpetuity laws, state-specific statutory limits, marketable title acts, and statutes that apply the rule against perpetuities against O's interests), and public policy. Common law: strong presumption for freedom of the grantor, especially for lesser interests in the land. Modern view: subject to the reasonableness test; fee simple interests are usually unenforceable as "repugnant to the fee," and life estates are usually enforceable if reasonable.Reasonableness Test (transfer of property)cost-benefit analysis of the utility and the injurious consequences of a restraint on alienation.olicyPolicy Justifications for Promoting Alienabilityefficiency, liberty, equality, and alienability.Consent to Sell ProvisionsIs the nature of the fee simple absolute so that is wholly inconsistent with the restrictions? Are often struck down as repugnant to the fee except charities and in the homeowner context where a declaration requires the association to act reasonable, or the consent to sell provisions are in the form of preemptive rights so that O can transfer the unit for fair market value.Tenancy, etc.Westmoreland does not require notice and opportunity to object.