Property Final

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  1. 3 categories of freehold estates
    • 1.  fee simple absolute
    • 2.  life estate
    • 3.  term of years
  2. Fee Simple Absolute
    • closest we get to absolute ownership
    • can be purchased or inherited - "to x"
    • does not have a future estate, but some of them do
    • may endure forever
  3. Life Estate
    • measured by the life of the person named in the deed
    • has to have a future estate
    • will endure for life of the person named in the deed  "to x for life, then to..."
  4. Term of years
    • has to have a future estate
    • will endure for a period measured by the calendar followed by a future interest.
    • "to x for ten years, then to..." creates a term of years
  5. Defeasible estate
    an estate that either will or might terminate if something happens.
  6. Three types of defeasible fees
    • fee simple determinable (or determinable fee)
    • fee simple subject to a condition subsequent
    • fee simple subject to executory limitation (or subject to executory interest)
  7. Fee simple determinable
    • Ends automatically when event happens.
    • so long as/until/while/during
    • future interest is a possibility of a reverter
    • not a reversion because it only might happen
  8. Possibility of a reverter
    • can be express (interest arises via the instrument) or implied (interest arises by operation of law because something less than a complete fee simple has been transferred which means something must have been retained
    • might automatically go back to O, depends on whether the contingency happens
  9. Fee simple subject to a condition subsequent
    • provided/however/on condition that
    • ex.  school, its successors and assigns, but if (provided...) the premises are not used for school purposes, O has a right to re-enter and retake premises.
    • future interest is called a right of entry or power of termination
  10. Right of entry or power of termination
    • future interest to Fee simple subject to a condition subsequent
    • only O and his heirs can hold a right of entry.
    • can't be held by a third person
  11. Fee simple subject to executory limitation (or subject to executory interest)
    • when O transfers either 1, or 2, and in the very same instrument, creates a future interest in a 3rd person instead of him or herself.
    • ends automatically when the stated condition happens
    • words that state a motive of the transferor create a fee simple absolute in the grantee with no future interest
  12. Interests retained by Owner
    • reversion
    • possibility of reverter
    • right of entry
  13. Reversion
    will automatically go back to O for sure
  14. Right of entry
    • O can take it back if the contingency happens, not automatic.
    • Unnatural end.
  15. Interest created in a transferee (rather than being retained by O)
    • vested remainder
    • contingent remainder
    • executory interest
  16. Vested remainder
    • it is created in an ascertained person and is ready to become possessory whenever and however all preceding estates expire.
    • can be vested subject to partial divestment (you know what you are getting but don't know if others may share in it)
    • come at the end of life estates and term of years
    • naturally ends
  17. In estates, what remainder does the law prefer
    • vested remainder over contingent remainder
    • if any ambiguity in the language, the law finds a vested remainder
  18. Contingent remainder
    • made contingent upon some event occurring other than the natural termination of the preceding estates (life estate or term of years).
    • Unnatural end
    • If the contingency does not come to pass, the land reverts to O.
  19. Executory interest
    You divest the prior estate rather than taking possession when the prior estate ends.
  20. Servitudes can be
    affirmative or negative
  21. Affirmative or Positive easement
    The right to do something on someone else's land.
  22. Negative easement
    The right to keep someone else from doing something on their own land.
  23. Easement can be
    appurtenant or in gross
  24. Easement appurtenant
    • an easement that benefits a parcel of land.
    • typically run with the land (assuming intent hat they run and notice to the burdened party).
  25. Servient tenement
    the burdened parcel
  26. dominant tenement
    benefited parcel
  27. Quasi-easement
    • an easement created by a common owner of two parcels that burdens one parcel and benefits the other.
    • If the plots are then sold separately it may created an easement by implication (if all other factors are present).
  28. A license can be revoked at any time unless
    • 1.  it is coupled with an ownership interest in chattels on the land, or
    • 2.  in the case of estoppel (detrimental reliance).
  29. Easement in gross
    • benefits a person rather than a parcel.
    • run with the servient tenement (there is no dominant tenement).
  30. An easement is created in one of five ways.
    • 1.  express grant
    • 2.  implication
    • 3.  prescription
    • 4.  estoppel
    • 5.  public trust doctrine
  31. Express easement
    An easement created via writing (statute of frauds applies).
  32. In modern times, an easement can be expressly granted to benefit a
    third party
  33. What are courts more and more focused on of the parties who created the easement.
  34. Two types of implied easements (easements created by implication)
    • an easement implied by prior existing use, and
    • an easement implied by necessity
  35. The elements of an easement implied by prior existing use are:
    • 1.  the easement started out as a quasi-easement (multiple parcels were once one parcel, and the easement benefitted on parcel at the expense of the other); and
    • 2.  the easement continues to be reasonably necessary to the enjoyment of the benefitted (dominant) parcel.
  36. The elements of an easement implied by necessity are:
    • 1.  the dominant and servient parcels were once owned by a single person.
    • 2.  the easement is strictly necessary (much more than reasonably necessary) to enjoyment of the benefitted (dominant) parcel; and
    • 3.  the need for an easement arose at the moment the two parcels where divided (burden of showing when the need arose is on the person seeking to establish the easement).
  37. What extinguishes an easement created by implication.
    Reunification of the parcels.
  38. Elements of prescriptive easements
    • The owner or possessor of the claimed dominant tenement has
    • 1.  openly
    • 2.  peaceably
    • 3.  continuously
    • 4.  under a claim of right adverse to the owner of the land
    •        -not clear on what "adverse" means; some courts require exclusivity and hostility; others just require you use it as if you have a legal right to use it.
    • 5.  with the owners knowledge and acquiescence
    • 6.  used the way over the servient tenement for longer than the statutory period.
  39. Elements of easement created by estoppel
    • 1.  the owner of the benefitted parcel uses the easement in a way that shows he is relying to his detriment on its continuity
    • 2.  the owner of the burdened parcel stands by and says nothing though he is aware of the use and reliance; and
    • 3.  it would be unjust under the circumstances to deny the existence of an easement.

    -unlike easement by prescription, does not require the passage of any particular length of time.
  40. Public trust
    Based on the idea that some land can be used by everyone regardless of ownership.

    • Cases are fact-determinative/fact specific and tend to get decided on the equities.  Factors court weigh:
    • 1.  location of the dry sand area in relation to the foreshore.
    • 2.  extent and availability of upland sand area
    • 3.  nature and extent of public demand
    • 4.  usage of upland sand area by the owner.
  41. Rules applicable to easements in gross
    • may acquire by prescription
    • benefit and burden is inheritable and assignable
    • not divisible
    • scope cannot be expanded, even minimally, without committing trespass
    • court has the power to adjust scope of easement in the face of changing times to serve the original purpose
    • court may find the existence of a trespass yet decline to grant injunctive relief, thereby allowing the trespass to continue
    • owner of a dominant estate may not extend an easement appurtenant to other parcels owned by him.
  42. Special rules and limitations on negative easements
    • gives the dominant owner the right to prevent the servient owner from doing something on his or her own land.
    • can either be appurtenant or in gross.
    • created by deed, implication, or estoppel.  Never by prescription.
  43. Negative easements recognized under US law
    light, air, building support, flow of an artificial stream, view, solar panels, conservation easement.
  44. Conservation easement
    • most rapidly growing type of negative easement in the US.
    • purposes are to preserve scenery, history, open space, provide a tax haven.
    • perpetual and transferrable
    • can be granted  to private parties, local governments, and charities.
    • can either be appurtenant or in gross
  45. If a promise does qualify as a positive or negative easement, a party can try to enforce it as a
  46. If court deems promise to be a covenant
    it will run with the land and bind parties down the chain of title
  47. If deemed regular promise
    will be treated as a contract, and only bind the parties to the contract
  48. Law of covenants came about because of
    limitations on easements

    market pushed the courts to allow promises that were not positive easements and negative promises that were not on the list of legally recognized negative easements to run with the land
  49. Two categories of covenants
    real covenants and equitable servitudes
  50. Covenants
    • always have a benefit side and a burden side
    • requirements are different for the benefit and burden to run
  51. Remedies for violation of a real covenant
    damages, injunctive relief and forfeiture
  52. Special rules applicable to real covenants
    • can be positive or negative
    • writing strictly required to create a real covenant
    • can never be created by implication, estoppel, prescription, or public trust.
    • only runs if the person purchasing the burdened land receives actual notice.
    • historically you needed to show vertical privity for either the burden or benefit to run (no adverse possession), but the trend is away from this requirement since actual notice is required.
    • remedy is at law:  damages
  53. Special rules applicable to equitable servitudes
    • Always negative.
    • No writing required except if it’s a reciprocal negative easement.
    • Can run with the land
    • Remedy is at equity: injunctive relief.  However, you can obtain an injunction then sell the injunction.
    • Courts cannot enforce racially restrictive covenants without violating the Equal Protection clause of the 14th Amendment, so even if they are in the deed, it’s as if they are not.
    • Covenants can be terminated in any one of 8 ways: merger, release, acquiescence, abandonment, unclean hands, latches, estoppel, and changed conditions.
    • Changed conditions only terminate a covenant if the change is truly extreme (such as a neighborhood going from residential to non-residential).
    • Modernly, a covenant touches and concerns the land if in purpose and effect it substantially alters the rights of the benefitted property owner. The focus is on the intent and effect of the promise.
    • Homeowners associations are treated by courts as alter-egos of the property owners in their membership. Accordingly, they can enforce covenants just as if they were property owners.
  54. Equitable servitudes run with the land if
    • 1.  the original parties intended the promise to run
    • 2.  the person purchasing the burdened land received actual or constructive (record) notice of the promise; and
    • 3.  the promise touches and concerns the land.

    Historically, you also needed to show vertical privity for either the burden or benefit to run (no adverse possessors), but the trend is away from this requirement since actual or constructive notice is required.

    Remedy is at equity:  injunctive relief.  However, you can obtain an injunction then sell the injunction.
  55. Reciprocal negative easement
    • type of equitable servitude in which a developer starts with a common plan with multiple lots; sells some lots with one or more negative promises designed to benefit all the lots in the common plan.
    • the deed was recorded (which provides constructive notice).
    • All lots in the plan are treated as containing the same promise.
  56. Two basic kinds of estates
    • freehold estates (fee simple, life estate, etc.)
    • leasehold estates (landlord-tenant law applies)
  57. leasehold estate
    is a hybrid legal creature, in that it is both an interest in land and a contract.
  58. Leases
    • are typically longer and more complicated than deeds that transfer freehold estates
    • because leaseholds contemplate an ongoing relationship.
  59. A court can find that a document called a “lease” is not in fact a “lease” but
    • but a license or life estates. 
    • This is significant because landlord-tenant law only applies to leaseholds.
  60. Creation of a landlord-tenant relationship automatically triggers
    certain rights and duties, and particular grounds for liability and remedies.
  61. four sub-categories of leasehold estates
    • (1) term of years
    • (2) periodic tenancy
    • (3) tenancy at will
    • (4) tenancy at sufferance.
  62. Term of years (leasehold)
    • last for a fixed or knowable period;
    • no limit on time (at common law);
    • cannot be created by implication;
    • no notice of termination needed (because the writing specifies precisely when it will terminate);
    • death of landlord or tenant does not terminate tenancy;
    • can be terminable upon the happening of some event or condition.
  63. Periodic tenancy
    • lasts from period to period (month to month, year to year);
    • can be created expressly or by implication; year to year terminated by half year’s
    • notice;
    • less than a year, notice of termination = period, but not to exceed 6 months;
    • notice must terminate the tenancy at the end of a period;
    • death of landlord or tenant does not terminate tenancy.
  64. Tenancy at will
    • no fixed period;
    • typically endures so long as both parties desire;
    • but note that some jurisdictions enforce one-sided termination clauses as long as
    • they are clear;
    • terminates at will or by death of either party.
  65. Tenancy at Suffrance
    Tenants hold over
  66. What are landlord’s options when faced with a tenancy at suffrance?
    • (1) don’t consent—tenant becomes trespasser—file suit to evict and seek damages; or
    • (2) consent to new tenancy (expressly or by implication). 
    • Landlord must choose one or the other.
  67. leases w/ clear unilateral termination provisions
    may be enforced to effectuate the intent of the parties
  68. ambiguous leases will be presumed
    mutual unless proven otherwise (“rebuttable presumption”).
  69. Leases over one year
    must be in writing—statute of frauds
  70. Delivery of property at end of lease
    • Under the English Rule, there is an implied covenant to deliver the property itself along with a legal right to the property. 
    • Under the American Rule, there is no such covenant, so the lessor’s remedy is against the holdover tenant, not against the lessor.  Case law in the U.S. is still very divided on this. 
    • Default rules, so can be contracted around. Safest thing is to specify in the lease whether there’s an obligation to deliver the property itself.
  71. Sublease
    • transfers less than the entire term of lease.
    • creates no privity of contract between the landlord and the sublessee; the original lessee retains a reversionary interest in the lease.
    • court can find a sublease even if the transfer documents says "assignment" and vice-versa.  Intent of the parties usually controls, is more persuasive to the court than terminology alone.
  72. Assignment
    • transfers the entire term of the lease
    • creates privity of contract between the landlord and the assignee (who steps entirely into the shoes of the original lessee).
  73. Subleases and assignments Majority Rule
    A landlord in a commercial lease may deny a sublease or assignment without stating a commercially reasonable objection.
  74. Subleases and assignments Minority Rule
    is a landlord who denies a sublease or assignment must state a commercially reasonable objection.
  75. Default
    means failing to observe a lease obligation. Both parties are capable of default.

    • When tenant defaults:
    • Rules that apply depend upon whether the tenant
    • (1) is still in possession of the property; or
    • (2) has left the property.
  76. Abandonment
    is when a tenant walks away from the lease without good cause.
  77. Constructive eviction
    is when the tenant walks away from the lease with good cause.
  78. Tenant in possession
    • Traditional rule was landlords could use self-help to regain possession if they did so peacefully. 
    • Modern trend in the courts is not to allow self-help, but to require landlords to go to the courts and other authorities to remove holdover tenants.
  79. Summary proceedings
    • to get a tenant out
    • fast but only deal with possession, not with damages.
    • You have to follow the proper procedures so the tenant’s common law and constitutional rights are respected.
  80. Tenant who has abandoned the property.
    • Tradition rule was that landlord did not need to mitigate damages by trying to find another tenant.
    • Modern (and majority) rule is that the landlord DOES have to mitigate damages by trying to find another tenant.
  81. The rule requiring a landlord to mitigate damages
    is a default rule, it can be contracted around.
  82. Covenant of Quiet Enjoyment.
    • Applies to both commercial and residential leases.
    • Breached when the conditions of the premises render them “substantially unsuitable” for the
    • purpose for which they were leased, or seriously interfere with their beneficial enjoyment.
    • Can be any number of things, including lack of heat, flooding, bad plumbing, bad neighbors (drug dealers, burglary, vandalism, secondhand smoke, e.g.).
    • Does not have to be 24/7 but does have to be permanent (that is, ongoing)
    • Can be waived by the passage of time (if you haven't mentioned the problem it must not have rendered the premises "substantially unsuitable").
  83. Implied Warranty of Habitability.
    • Only applies to residential leases.
    • Requires condition of premises to be minimally adequate from a health and safety perspective (“safe, clean, and fit for human habitation”).
    • May be electricity, gas, garbage, broken window, absence of lock, heat (in a cold place), air conditioning (in a hot place), sewage, lead paint, rotting walls/ceiling, etc.
    • Can get punitive damages (to discourage slumlords).
    • Cannot be waived by the passage of time.
  84. Conditions of property - all jxns recognize
    CQE but not all recognize IWH
  85. CQE and IWH can be
    contracted around with "as is" provision, for example.
  86. Both warranties require the tenant
    to provide the landlord with notice and a reasonable opportunity to fix the problem before filing suit or abandoning the lease.
  87. Nuisance
    Nuisances can be private or public.

    Overarching principle:  Every person should use his or her property so as not to injure the other person’s property or interfere with their use of their own property.
  88. Public nuisance
    • is one that unreasonably interferes with a right common to the general public. 
    • A public nuisance might be an activity that is injurious to public health, indecent or offensive to the senses, or an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life or property.
    • Local governments are often vested with the power to abate public nuisances.
  89. Conduct is unreasonable for public nuisance
    purposes if it
    • (1) violates the law;
    • (2) interferes significantly with public rights; or
    • (3) produces long-lasting effects of which
    • the actor should be aware.
  90. Private Nuisance Elements
    • (1) substantial;
    • (2) non-trespassory;
    • (3) invasion of the use and/or enjoyment of land;
    • (4) caused by;
    • (5) activities that are
    •       (a) unintentional and negligent, reckless, or ultrahazardous; or
    •       (b) intentional and unreasonable.
    •             -“intentional” means acting for the purpose of causing the invasion OR acting in the knowledge that the invasion is resulting or substantially certain to result from the conduct in question.
  91. For purposes of element no. 5 (private nuisance), the definition of
    “unreasonable” depends on the jurisdiction:
    • (1) The Jost test measures the bad effects of the defendant’s activity on the plaintiff without balancing the effect against the benefits of the activity to the defendant or surrounding community, and finds a nuisance when the bad effect crosses a particular threshold. 
    • (2) The Restatement test balances the benefits of the activity against the costs to the plaintiff, and finds a nuisance only when the gravity of the harm outweighs the utility of the defendant’s activities. 
    • Most courts apply the Jost test.
  92. Private nuisances
    Injury can be corporeal (pesticides, e.g.) or incorporeal (smell, e.g.). 

    You do not need a physical invasion to establish a nuisance (unlike trespass).

    Harm has to be substantial to establish a claim for nuisance (unlike in tort law).

    • Test assumes a person of ordinary sensitivity
    • (supersensitive plaintiffs can’t state a claim unless a person of ordinary sensitivity would have the same experience).
  93. Policy question at the heart of nuisance cases
    is how do the courts decide such conflicts in a way that is fair to everyone involved?
    • Courts have found the presence of a nuisance
    • when the defendant emits a smelly gas; makes a loud noise; attracts flies, rats, or other pestilents; pollutes the air; pollutes the water; causes excessive vibrations; causes flooding; causes excessive light; causes inadequate light; doing something as an act of spite.
    • Usually not: causing apprehension (scary dog), causing feelings of loathing (running a rehab center), ugliness.
  94. Remedies for nuisances
    • (1) damages for past harms;
    • (2) permanent damages for future harms;
    • (3) an injunction abating the nuisance.
  95. Damages (nuisance)
    Permanent damages used to be disfavored, but have come into favor in some courts when the overall benefits of the defendant’s activity outweighs the harms.

    Damages may include stigma damages (perceived lowering of plaintiff’s property value).
  96. Abatement (nuisance)
    Not clear who pays to abate the nuisance, usually depends on equitable considerations (like whether plaintiff was there first or came to the nuisance or) and the overall balance of hardships (who can best afford to abate the nuisance)?

    If the plaintiff came to the nuisance, he or she is more likely to be ordered to pay for its abatement.

    If abatement costs a lot more than permanent damages, courts are more likely to award permanent damages.
  97. Zoning developed
    in response to the industrial revolution, during which people poured into cities, creating new problems such as congestion, overcrowding, noise pollution, air pollution, foul odors, etc.

    • Zoning allows for planning.  
    • All 50 states have enacted laws granting zoning power to local public entities.

    Until the mid-20th century, zoning laws regulated the use of physical space (commercial versus residential versus agricultural, etc.). 

    But starting in the 1950’s zoning laws began to regulate with much more specificity what kinds of activities could take place in a particular neighborhood. 

    This brought zoning laws into tension with individual rights.
  98. Challenges to zoning ordinances themselves are
    • (1) powers challenges, which typically argue that the locality lacked the statutory power to create the zoning categories it did;
    • (2) unlawful delegation challenges, which argue that the wrong body made the final decision; or
    • (3) constitutional or statutory challenges, which argue that although the locality had the authority to act and the right body acted, its action violated the applicant’s state or federal constitutional or statutory rights.
  99. Speech rights (zoning)
    • implicated because some things (like signs) are
    • both speech and a physical object.
  100. Can't zone out
    • too much speech because that is too blunt an instrument to achieve a particular goal.
    • too little speech or it looks like you’re targeting a particular point of view.
    • yard signs altogether.
    • You cannot have blanket bans on personal, political, or religious speech.
  101. Can zone
    ugly (billboards, e.g.).
  102. Right to free exercise of religion
    implicated because some things (like houses of worship) are physical objects but also necessary to religious expression.
  103. Federal Religious Land Use and Institutionalized
    Persons Act of 2000 (RLIUPA)
    • sets stricter limits on zoning laws that burden the free exercise of religion.
    • prohibits land use regulations that impose substantial burdens of religious exercise unless the government demonstrates that the regulation is in furtherance of a compelling governmental interest and is the least restrictive means of furthering that interest.
    • also prohibits regulations that treat religious institutions unequally relative to nonreligious institutions, otherwise discriminate against them, or totally exclude them from a jurisdiction.
    • does not expressly define “substantial burden.”  Most courts have held that a substantial burden on religious exercise exists when there is a substantial connection between the coerced or impeded conduct and the religious exercise of the institution.
  104. The courts tend to look (zoning)
    favorably on requiring a certain dispersion of potentially offensive businesses and images.

    disfavorably on completely banning potentially offensive businesses and images.
  105. Taking
    • can be small (one building) or large (multiple
    • parcels).   

    Any permanent physical occupation authorized by the government, however minor, is a per se taking.

    Temporary invasions are not takings.
  106. The legal questions that come up in takings law
    • (1) what counts as a “taking”?
    • (2) what counts as a “public use”?
    • (3) how much compensation is “just”?
  107. Kelo
    • court defined “public use” as follows: 
    • (1) “public use” means “public purpose”;
    • (2)“public purpose” has a very broad meaning;
    • (3) courts are to give public officials great deference on what will land use will best serve the public purpose; and
    • (4) legitimate governmental goals can include economic, spiritual, aesthetic, physical, monetary.

    state legislatures moved to strengthen takings law within their own states, to prevent takings for private development projects.
  108. Eminent domain
    State governments have the inherent authority to “take” private property, and they have also delegated that power to some local public entities.
  109. 5th Amendment
    states in part:  “nor shall private property be taken for public use, without just compensation.”
  110. The law is clear that (taking)
    • (1) the government cannot simply transfer land from one private landowner to another;
    • (2) the government cannot take private property under the mere pretext of a public purpose;
    • (3) the government can usually take property to build a public facility; and
    • (4) the government can usually take property to build a private business that is 100% open to the public (railroads, e.g.).

    Beyond those four rules, it is not clear how public is public enough to be deemed “public use” for 5th amendment purposes.
  111. The public policies that animate takings law
    • are a desire to make the best use of land (economic efficiency, utility); and
    • seeing private land as quasi-public in that the public has a stake in how private property is used.
  112. Tenancy in Common
    1.  Tenants in common have separate but undivided interests in the property.

    2. There is one unity in the interest of the property.

    • 3. Each tenant has rights to possession to the
    • whole property and may have unequal shares.

    4. However, there are no rights of survivorship.

    5. The property will be passed down to heirs or can be willed to another party.

    6.  Thus, the new party will be tenants in common with the party still alive.
  113. Joint Tenancy
    1. Tenants in a joint tenancy are regarded as a single owner brought together by four unities. 

    2. The four unities are time, title, interest, and possession.

    3. Under the unity of time, the interest of each joint tenant must be acquired at the same time.

    4. Under the unity of title, all joint tenants must acquire title by the same instrument.

    5. Under the unity of interest, all must have equal undivided shares.

    6.  Under the unity of possession, each must have a right to possession of the whole.

    7.  There are rights of survivorship under joint tenancy.

    8.  Once a tenant is deceased their property interest will cease to exist.

    9.  Joint Tenancy is the best option for same sex couples, father and son, etc as probate will not be required.

    10.  The interests can be unilaterally severed.

    • 11.  Lien theory does not sever title in a joint
    • tenancy.
  114. Tenancy by the entirety
    1.  Tenants in tenancy by the entirety are regarded as a single owner brought together by four unities and marriage.

    2.  The four unities are time, title, interest, and possession.

    3.  Under the unity of time, the interest of each joint tenant must be acquired at the same time.

    4.  Under the unity of title, all joint tenants must acquire title by the same instrument.

    5.  Under the unity of interest, all must have equal undivided shares.

    6.  Under the unity of possession, each must have a right to possession of the whole.

    7.  Marriage is the unity between two people that is legally recognized.

    8.  There are rights of survivorship under joint tenancy.

    9.  Interest in title cannot be severed unilaterally. 

    10.  It can only be severed through divorce, one tenant dies, and a mutual agreement.
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