1L Substantive Law Questions (c/o 2017) Forum

[whats an updog]

Hopefully this will be a coherent question:

My casebook lists there as being different tests for finding that equitable servitudes and real covenants run with the land:

Real covenant: (1) intent, (2) horizontal privity, (3) vertical privity, (4) touch and concern
Equitable servitude: (1) intent, (2) notice, (3) touch and concern

But in American law, isn't the only difference between these ideas in the remedy? If that's true, then, is it possible that when analyzing a situation a court can find an equitable servitude but not a real covenant?

Example: I agree with all my neighbors to include a restriction in our deeds that no more than two unrelated people may live in the homes. We want this restriction to run with the land. There is no horizontal privity and no original common owner, but it seems like it would satisfy the requirements for an equitable servitude.

I think this is right. To nitpick your example though, you can't put a restriction into an already existing deed (that deed is a record of what the prior owner conveyed to you, you can't change that after the fact). You could put that restriction in your deed to a subsequent buyer, in which case there's a good chance a real covenant exists in addition to an equitable servitude (if notice is satisfied), and your neighbors could sue for an injunction OR damages. Or, you can create a written agreement with your neighbors restricting your land, which would create the equitable servitude but not a real covenant. The burden would then run with the land so long as the buyer took with actual, constructive, or inquiry notice of the servitude. You could probably record this agreement against your deed to provide that notice. Then yes, your neighbors could sue for an injunction, but not damages.

Thank you for the clarification on the deed bit as well as the rest. I thought property was easy until I started doing practice exams.

[JustHawkin]

I thought property was easy until I started doing practice exams.

You can say that again...

[butlerraider1]

Property

Difference between possibility of reverter and a reversion?

[monsterman]

Property

Difference between possibility of reverter and a reversion?

Could be wrong but I think possibility of reverter refers to a fee simple subject to condition subsequent, so grantor has the option to exercise their right of reentry, aka possibility of reverter upon an event happening; and reversion refers to fee simple determinable, so grantor automatically gets the reversion upon an event happening.

[monsterman]

I thought property was easy until I started doing practice exams.

You can say that again...

fucking this

[swampman]

Property

Difference between possibility of reverter and a reversion?

Both are future interests retained by the grantor.
A reversion follows a life estate (or a term of years), and follows the natural termination of that estate. O grants blackacre "To A for life." A life estate is created in A with a reversion in O. As soon as A dies (Or x years have passed), O gets the property back. (If this was created in a third party instead of in the grantor, it would be a remainder).

A possibility of reverter follows a Fee Simple Determinable, and cuts the FSD short. O grants "To A for so long as used as a karate studio." O retains a possibility of reverter. As soon as the property is no longer used as a karate studio, O gets the property back. (If this was created in a third party, it would be an executory interest).

[butlerraider1]

Property

Difference between possibility of reverter and a reversion?

Both are future interests retained by the grantor.
A reversion follows a life estate (or a term of years), and follows the natural termination of that estate. O grants blackacre "To A for life." A life estate is created in A with a reversion in O. As soon as A dies (Or x years have passed), O gets the property back. (If this was created in a third party instead of in the grantor, it would be a remainder).

A possibility of reverter follows a Fee Simple Determinable, and cuts the FSD short. O grants "To A for so long as used as a karate studio." O retains a possibility of reverter. As soon as the property is no longer used as a karate studio, O gets the property back. (If this was created in a third party, it would be an executory interest).

Makes sense. Thanks a lot

[whats an updog]

It really should just be called a possibility of reversion.

Also the wikipedia on this stuff is really not that bad: http://en.wikipedia.org/wiki/Future_interest#Reversion

[LSATobsessed]

what is the main difference between substantive due process and procedural due process and the difference in the method of analysis in between them?

for con law

[swampman]

what is the main difference between substantive due process and procedural due process and the difference in the method of analysis in between them?

for con law

I'm think the main difference is that procedural due process is part of the constitution, guaranteed in the 5th and 14th amendments, whereas substantive due process is a made-up contradiction in terms. Beyond that, I'm not really sure.

[whats an updog]

Hey swampman, i was wondering if you could flesh out why the following is true and why there would be a good chance of courts finding a real covenant:

You could put that restriction in your deed to a subsequent buyer, in which case there's a good chance a real covenant exists in addition to an equitable servitude (if notice is satisfied), and your neighbors could sue for an injunction OR damages.

Is it because putting the restriction in the deed to a subsequent buyer would create horizontal privity (grantor-grantee)?

[Traynor Brah]

what is the main difference between substantive due process and procedural due process and the difference in the method of analysis in between them?

for con law

I'm think the main difference is that procedural due process is part of the constitution, guaranteed in the 5th and 14th amendments, whereas substantive due process is a made-up contradiction in terms. Beyond that, I'm not really sure.

lol

Well, the famous line is something like: "process without substance is meaningless, as are substantive rights without process." OK i butchered that but you get the idea.

Due process is your right against arbitrary and or irrational abridgments of your substantive rights (life liberty and property or whatever) and that kind of thing. Substantive due process is just the concept of putting meaning behind the liberty interest of that clause.

For one, it is how the bill of rights are incorporated against the states. The due process clause actually *is* (effectively the entire (sans two small exceptions)) bill of rights as applied against the states. It independently constitutes those rights, it doesn't apply them against the states. For example, your right to free speech against the federal govt is protected by the first amendment, but your right to free speech against the states is protected by the due process clause of the 14th. To be protected by the DPC's protection of liberty, the supreme court has finds that the right falls under one of two conceptions of liberty (w/r/t free speech, both, I imagine) 1) that is fundamental to any concept of ordered liberty (i.e. it is such a fundamental freedom that you could imagine no hypothetical liberal democracy without this liberty (or something like that)), or that 2) it is a deep, treasured historical right in the American and English legal tradition (or something like that). Once the ct recognized that one of the bill of rights provisions are encompassed by the DPC's liberty protection, though, the DPC right is coexistent with the federal constitutional right.

Also, it is a pretty hated concept. Nobody hates the above because everyone wants the bill of rights to apply against the states and because the privileges and immunities clause was likely supposed to do that. But because the Slaughterhouse cases said the PI clause is effectively meaningless, and because that was never overturned, subst due process did the work of getting the bill of rights teeth agst the states. But then twice the Supreme ct has read into the clause controversial liberties (liberty of contract, privacy rights (abortion rights)) that don't necessarily have strong textual support or support within the ordered liberty/tradition framework. I am also a smidge toasty right now, so I'm going to quit; sorry if this is all wrong.

[swampman]

Hey swampman, i was wondering if you could flesh out why the following is true and why there would be a good chance of courts finding a real covenant:

You could put that restriction in your deed to a subsequent buyer, in which case there's a good chance a real covenant exists in addition to an equitable servitude (if notice is satisfied), and your neighbors could sue for an injunction OR damages.

Is it because putting the restriction in the deed to a subsequent buyer would create horizontal privity (grantor-grantee)?

Yeah, that was my thought. According to my notes, a majority of states view grantor-grantee relationships as establishing horizontal privity. Massachusetts doesn't, there an easement has to exist between the promisor and promisee.

What I'm not sure on is whether the grantor/promisee has to be the one receiving the benefit in order to qualify as horizontal privity. Here the purchaser would be making the promise to you, but the neighbors' estates would be receiving the benefit. Would this satisfy horizontal privity?

[whats an updog]

Yeah, we learned that grantor-grantee can substitute for horizontal privity, but I still wasn't sure if selling the property to someone else would count. I do think it satisfies the requirement when you sell (with that type of benefit being provided to the neighbors), but that's essentially the question that started me down this path.

It's still a little murky to me and doesn't seem like it should be murky.

[blackacre10]

contracts, y'all--

option contracts require separate consideration to hold the offer irrevocable. so if i want to buy a $500 stereo set from you, and i pay $10 for you to keep it open for the next two weeks, i still owe you $500 for the stereo. is there ever a situation where i give you $10, almost like a down payment for the stereo, and therefore owe you $490, but where you can still revoke (assuming i get the stereo upon my full performance, i.e., full payment)? this would work for a unilateral contract (part performance makes unilateral contract irrevocable) but what about in a bilateral contract? is this possible?

i'm getting myself confused.

[swampman]

What I'm not sure on is whether the grantor/promisee has to be the one receiving the benefit in order to qualify as horizontal privity. Here the purchaser would be making the promise to you, but the neighbors' estates would be receiving the benefit. Would this satisfy horizontal privity?

Ok, so horizontal privity is definitely established here, the problem is vertical privity - you have the right to sue on the covenant, but due to the vertical privity requirement only your successors can sue on it, and the neighbors aren't your successors.

This is not going to go well.

[pancakes3]

contracts, y'all--

option contracts require separate consideration to hold the offer irrevocable. so if i want to buy a $500 stereo set from you, and i pay $10 for you to keep it open for the next two weeks, i still owe you $500 for the stereo. is there ever a situation where i give you $10, almost like a down payment for the stereo, and therefore owe you $490, but where you can still revoke (assuming i get the stereo upon my full performance, i.e., full payment)? this would work for a unilateral contract (part performance makes unilateral contract irrevocable) but what about in a bilateral contract? is this possible?

i'm getting myself confused.

It'd be better to argue that as a dependent promise or condition, to allow withholding performance rather than a separate contract.

[chargers]

Is there any difference between a reciprocal negative easement and an equitable servitude implied from a common plan?

[blackacre10]

contracts, y'all--

option contracts require separate consideration to hold the offer irrevocable. so if i want to buy a $500 stereo set from you, and i pay $10 for you to keep it open for the next two weeks, i still owe you $500 for the stereo. is there ever a situation where i give you $10, almost like a down payment for the stereo, and therefore owe you $490, but where you can still revoke (assuming i get the stereo upon my full performance, i.e., full payment)? this would work for a unilateral contract (part performance makes unilateral contract irrevocable) but what about in a bilateral contract? is this possible?

i'm getting myself confused.

It'd be better to argue that as a dependent promise or condition, to allow withholding performance rather than a separate contract.

thanks!

Is there any difference between a reciprocal negative easement and an equitable servitude implied from a common plan?

negative easements are almost always limited to 1) not blocking water channels, 2) not blocking air ways, 3) not blocking views, and 4) not removing foundational support of buildings. you wouldn't be able to get a negative easement (that runs with the land) to restrict lots to residential use

[swampman]

Is there any difference between a reciprocal negative easement and an equitable servitude implied from a common plan?

I've seen implied reciprocal covenant too, and then all of those with easement/servitude/covenant swapped. I'm 90% sure they are all referring to the same thing (ie Sanborn v. McLean). The court in Sanborn called it a reciprocal negative easement, but professors think that's the wrong term because as the poster above mentioned it was a restriction on development which didn't relate to LAWS - Light Air Water Support.

[psyduckiscool]

Civil Procedure Question:

What is the relationship between in rem jurisdiction and the full faith and credit clause? If a court obtains jurisdiction over an individual's property in rem, can their judgment not be enforced in another state because of state sovereignty concerns?

[pancakes3]

Civil Procedure Question:

What is the relationship between in rem jurisdiction and the full faith and credit clause? If a court obtains jurisdiction over an individual's property in rem, can their judgment not be enforced in another state because of state sovereignty concerns?

My take would be that with In Rem, the cause of action is related to the property in that state so other states couldn't enforce it even if they wanted to. A judgment established with Quasi-In-Rem, using property as a contact (subject to min contacts test per Shaffer v Heitner) to establish PJx would be subject to full faith and credit.

[whats an updog]

What I'm not sure on is whether the grantor/promisee has to be the one receiving the benefit in order to qualify as horizontal privity. Here the purchaser would be making the promise to you, but the neighbors' estates would be receiving the benefit. Would this satisfy horizontal privity?

Ok, so horizontal privity is definitely established here, the problem is vertical privity - you have the right to sue on the covenant, but due to the vertical privity requirement only your successors can sue on it, and the neighbors aren't your successors.

This is not going to go well.

Yes, so that's another confusing conclusion I came to. That in the example, you would be able to sue successors (and successors would be able to sue other successor down the line), but others in the neighborhood would not be able to sue those successors (for damages). However, I also thought that this conflated vertical and horizontal privity a bit, though I guess the courts don't seem to give too much of a shit about these things being super formal so maybe that's alright (e.g. who knows really what touch and concern is).

I am going to reread everything again and see if I suddenly realize where I've gone wrong.

[chargers]

Is there any difference between a reciprocal negative easement and an equitable servitude implied from a common plan?

I've seen implied reciprocal covenant too, and then all of those with easement/servitude/covenant swapped. I'm 90% sure they are all referring to the same thing (ie Sanborn v. McLean). The court in Sanborn called it a reciprocal negative easement, but professors think that's the wrong term because as the poster above mentioned it was a restriction on development which didn't relate to LAWS - Light Air Water Support.

Ok, thanks. In the answers to one of my professors old exams he used implied reciprocal negative easements and equitable servitudes almost interchangeably so it confused the heck out of me. That makes sense, though.

[sesto elemento]

Crim Law

Can someone explain mistake of fact. TYIA.