Running Covenants and Public Policy

When first encountering covenants running with the land, one may react against the very idea. Why should any person be able to enforce a promise not made to him or be bound by a promise he did not make? Modern contract law, particularly the rules about the assignment of contract rights and the rights of third-party beneficiaries, may answer the first question, but does not explain how anyone can be bound by a promise neither expressly nor impliedly made or consented to by him. On the other hand, persons_ familiar with easements, liens, or mortgages understand that land ownership can be subject to and burdened by property interests in other persons, so that successive owners are subject to burdens they did not create. That a landowner\u27s promise may be similarly binding is not startling. Technically, a mere promise does not create an easement or a lien; but we all know of cases in which promissory language was held to create an easement

The Taming of a Duty--The Tort Liability of Landlords

For one inclined to reform the first-year curriculum in law schools the most simple and comprehensive solution is to expand the treatment of the law on landlord and tenant, and only then break up into the traditional basic subjects to deal with matters not previously covered. Thereby one could embrace all the traditional first-year subjects except Criminal Law, and a good deal more as well. The other side of this conceit is that one who approaches the modem law of landlord and tenant from traditional property perspectives encounters particular problems that arise from the margins, or along the frontal thrust, of contract and tort law, and so is thrown into their theoretical or philosophical essences, and into emerging forces of social policies, and even economics. Unfortunately, many recent cases dealing with new developments in this field are rife with economic assumptions and conclusions, unsupported by any relevant data. In this maelstrom of ideas and problems, one even encounters the boundary lines between contract and tort law, and must learn, if he does not know it already, that the line is at least fuzzy, if not arbitrary. So one who deals with the law of landlord and tenant must consider not only how contract and tort rules directly affect property rules, but also how the effect of contract law on tort law, or vice versa, indirectly affects property law. This, however, is not· an entirely new experience, at least for property lawyers. Something of the same, perhaps to a lesser degree, is encountered in other areas of traditional property law, the most obvious example, of course, being the law of bailments, nuisance, and covenants running with the land

Boundaries: Description v. Survey

These propositions I first encountered as a student in law school. At that time they struck me as rather startling propositions, which could not be reconciled with other things I had learned about the law of conveyancing. I do not recall exactly how they were disposed of: whether they were to be regarded as the law on the subject or merely as a couple of striking aberrations. There were too many other matters demanding attention at that time to allow much fretting over so small a question. Upon returning to the classroom some years later-but now sitting on the other side of the desk-I had to cope with these cases again. Now it was not so easy to pass them off; and so I have been confidently announcing for some time that this was not the law, or at least should not be. Still I could not be sure, at least of what the law was, for, so far as I could tell, nobody had ever gone into it very far. I thought perhaps the question had not come up very often; for if it had, we would have heard more about it. This probably served as a basis for my pronouncements to students; for unless there were extensive authority for the above-quoted propositions, it seemed doubtful that they could or would find general acceptance. But I was not content to leave the question there, and so set off to see what could be found in the reports, moved principally to satisfy my own curiosity. The number of relevant cases turned up in this inquiry proved to be all out of proportion to the magnitude of the question. But I had a growing feeling that, however narrow the question might be, the answer might have not a little practical value to conveyancers by and large. So I saw the matter through, and this article is a report of that endeavor

ILLEGAL CONDITIONS AND LIMITATIONS: EFFECT OF ILLEGALITY

IN earlier articles the writer undertook to explore that miscellaneous and somewhat neglected field of law in which public policy is held to nullify the efforts of persons to impose certain types of conditions and limitations on dispositions of their property.\u27 Such provisions most commonly take the form either of conditions subsequent or executory limitations, but occasionally appear as conditions precedent or special limitations. Unlike provisions which run afoul of the rule against perpetuities or the rules against restraints on alienation, the provisions in question usually prescribe conduct on the part of beneficiaries which is not directly related to the use of the property conveyed or devised. In fact, a gift of property may be made merely to induce the conduct prescribed by the condition or limitation. Such a device is within the prerogatives accorded to testators and grantors, except where its effects are found to be contrary to the public interest. In the latter event the condition or limitation is held to be illegal and void

TESTAMENTARY CONDITIONS AGAINST CONTEST

It is the natural desire of any testator that his will be speedily probated after his death and that there be no rancorous bickerings over his estate by his beneficiaries. One might, therefore, expect that no-contest conditions--conditions prescribing forfeiture of any interest under the will if a beneficiary contests probate-would be of common occurrence and that the rules regulating a testator\u27s right to employ them would be well settled. As a matter of fact, conditions of this type have appeared from time to time ever since cases were first reported, but their validity is far from settled; the state of the law is quite chaotic

Leach: Property Law Indicted

A Review of Property Law Indicted by W. Barton Leac

The Practical Location of Boundaries

Early in the development of the common law of conveyancing, as everyone knows, the practice of physically consummating a conveyance by acts on the land itself was abandoned in favor of the more flexible and convenient devices authorized or required by the Statute of Uses and the Statute of Frauds. Now we do it all on paper and consummate the transaction at any convenient place. One of the requirements of this process is to make clear what land is being conveyed. So we describe the land on paper in one of the several ways which have been approved for this purpose. The courts, with admirable liberality, have not specified that any particular sort of description is required, but only that it shall be possible, in some lawsuit brought for the purpose, for a court to decide, from the language used and perhaps from certain other extrinsic matter, just where the land described is located. But these more civilized refinements may have lost something of value which was of the essence of the cruder feoffment. And thereby hangs a tale which, by your leave, I mean to tell in this space

Trusts and the Doctrine of Estates

The doctrine of estates is the common law system for the classification of divided ownership. Its primary purpose is to differentiate the legal consequences of the variety of concurrent, present, and future estates, but it also serves to differentiate the dispositive language required to create or transfer such estates. The doctrine of estates, therefore, embraces a sizable part of the law of conveyancing, including the large body of doctrine known as rules of construction. In modern practice the classification and construction of present and future interests usually occurs with respect to beneficial interests in trust. It has not been sufficiently recognized, however, that dispositions in trust present special problems of classification and construction that do not arise in nontrust dispositions. It is my purpose to discuss a number of such problems that have not received adequate systematic attention. These problems have their source in the complexities of dispositive language typically found in trust instruments

Recent Patterns of Testate Succession in the United States and England

This study purports to be in part a comparison of American and English testamentary practices. The virtual absence in England of estate records as we know them imposed limitations on the attainment of this objective. For present purposes, data concerning English practices were derived almost entirely from one hundred English wills selected at random from those filed during the year 1963 in the Principal Probate Registry in London. To the extent that these wills came from all over England and Wales, they can be regarded as representative of English practices generally. But the much smaller size of the sample in relation to the population which it represents should be taken into account

Construction, Reformation, and the Rule Against Perpetuities

Not long ago, in all the commotion about the doctrine of wait-and-see, a different principle for dealing with the pitfalls in perpetuities law unobtrusively emerged. This was an adaptation of the principle of cy pres to require that provisions, void under the Rule Against Perpetuities, be reformed within the limits of that Rule so as to give effect as closely as possible to the intention of the donor