Property Outline
I. WHAT "PROPERTY" IS; THE PROBLEM OF DEFINITION OF PROPERTY..........................................4
WHAT ARE THE SOURCES OF PROPERTY RIGHTS? .......................................................................................................4
II. THE UNDERLYING ASSUMPTIONS OF PROPERTY SYSTEMS ...............................................................4
THREE DIFFERENT LEVELS OF ANALYSIS IN THE PROPERTY QUESTIONS: .....................................................................5
PROPERTY: ................................................................................................................................................................5
THEORIES OF PROPERTY: ...................................................................................................................................5
A. Rights Theory ...................................................................................................................................................5
B. Theory of First Occupancy (Classical Theory) – special right ......................................................................5
C. Labor Theory (Locke) – special right .............................................................................................................6
D. Personality Theory (ex. of general right) ......................................................................................................6
Tragedy of the Commons .....................................................................................................................................6
Posner's Article: ...................................................................................................................................................7
What is the matter with compensation, money remedies? ....................................................................................7
III. ACQUIRING LEGALLY COGNIZABLE PRIVATE PROPERTY RIGHTS ..............................................8
A. WILD ANIMALS .....................................................................................................................................................8
Acquisition by Capture: .......................................................................................................................................8
Custom/ All that is Possible: ................................................................................................................................8
Business Competition ...........................................................................................................................................9
Treasure Hunt – ...................................................................................................................................................9
B. LABOR ..............................................................................................................................................................10
Two situations where the subject of labor comes up ..........................................................................................10
Slavery: ..............................................................................................................................................................10
Modern Applications and Civic Duties: .............................................................................................................10
Involuntary Pro Bono Work: ..............................................................................................................................11
C. LAND .................................................................................................................................................................11
SYSTEMS OF LAND: .........................................................................................................................................12
D. INTELLECTUAL PROPERTY: ........................................................................................................................12
PATENTS: ..........................................................................................................................................................13
E. THE HUMAN BODY ........................................................................................................................................13
Break those cases into three areas:....................................................................................................................14
IV.
RIGHTS OF PERSONS OWNING LAND IN FEE SIMPLE ABSOLUTE ...............................................16
A. MODEL OF ABSOLUTE RIGHTS WITHIN ONE'S OWN BOUNDARIES (FSA) .............................................................16
Several components to a fee simple absolute—Blackstone Model .....................................................................16
Alternative Approaches ......................................................................................................................................16
Selecting an Approach .......................................................................................................................................16
B. ENCROACHMENTS- INVASION OF RIGHT TO USE/EXCLUDE ............................................................... 16
Property rule – ...................................................................................................................................................16
Liability rule – ....................................................................................................................................................17
Inalienable Entitlements—.................................................................................................................................17
Calabresi article: Are we going to enforce property rule or liability rule? .......................................................17
C. LIMITATIONS ON THE RIGHT TO EXCLUDE .............................................................................................19
D. LIMITATIONS ON THE RIGHT TO DESTROY .............................................................................................20
E. LOSING RIGHTS BY ADVERSE POSSESSION ..........................................................................................................21
Possessor's rights before end of statute of limitations – ....................................................................................21
Statute of Limitations .........................................................................................................................................21
Rights after expiration of statutory period .........................................................................................................21
Elements of adverse possession: ........................................................................................................................21
Tacking: .............................................................................................................................................................23
Interests not affected by adverse possession: .....................................................................................................24
F. PUBLIC TAKINGS OF PRIVATE LAND ....................................................................................................................26
2 Kinds of Takings: ............................................................................................................................................26
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Property Outline
First Question = is this the taking of title or something else? ...........................................................................26
General Principles in Analyzing Cases: ............................................................................................................26
Four Step Analysis .............................................................................................................................................27
PUBLIC USE- What constitutes Public Use? ...................................................................................................28
PROPERTY- What Constitutes Property Rights/Interests? ................................................................................29
TAKEN- What acts by government will constitute a taking? .............................................................................30
COMPENSATION- Just Compensation? ...........................................................................................................32
Tight Means-End Fit ..........................................................................................................................................34
Ways out of the Per Se test:................................................................................................................................ 36
REVIEW: ...................................................................................................................................................................36
V. SHARED OWNERSHIP ......................................................................................................................................38
OWNERSHIP DIVIDED BY TIME; ESTATES IN LAND AND FUTURE INTEREST .............................................................38
A. FSA (Fee Simple Absolute) ...........................................................................................................................40
B. Fee Tail .........................................................................................................................................................40
C. Life Estate .................................................................................................................................................41
Defeasible fees as absolute restraint on alienation - .........................................................................................44
3. Future Interests: ............................................................................................................................................45
TRUSTS: ............................................................................................................................................................49
Rules Furthering Marketability by Destroying Contingent Future Interest (Intent Frustrating Rules): ...........50
VI.
CONCURRENT OWNERSHIP .....................................................................................................................54
3 BASIC TYPES:.........................................................................................................................................................54
Tenants in Common – ........................................................................................................................................54
Joint Tenancy – ..................................................................................................................................................54
Tenancy by the Entirety –...................................................................................................................................54
SEVERANCE OF JOINT TENANCY: .............................................................................................................................55
2-part Test ..........................................................................................................................................................55
REMEDIES OF CO-TENANTS:.....................................................................................................................................56
Partition: ............................................................................................................................................................56
Ouster .................................................................................................................................................................57
Accounting .........................................................................................................................................................57
Marital Interest and Jt. Ten. ..............................................................................................................................57
VII. THE LEASEHOLD ESTATE..........................................................................................................................59
THERE ARE 4 TYPES OF LEASES: ............................................................................................................................... 59
Term of years: ....................................................................................................................................................59
Periodic Tenancy: ..............................................................................................................................................59
Tenancy at will: ..................................................................................................................................................59
Tenancy at Sufferance:.......................................................................................................................................59
WHAT IS A LEASE? ...................................................................................................................................................60
License – ............................................................................................................................................................60
FEDERAL FAIR HOUSING ACT: .................................................................................................................................61
DELIVERY OF POSSESSION .......................................................................................................................................62
ASSIGNMENTS AND SUBLEASES: ..............................................................................................................................62
How do we know whether something is a sublease or an assignment? .............................................................62
Privity - Why do we care whether something is an assignment or a sublease? .................................................62
2-part Test for Whether it’s an Assignment or Sublease: ...................................................................................63
LL’s Ability to Restrict Ability to Assign/Sublease .............................................................................................63
DUTIES OF THE TENANT ...........................................................................................................................................64
Doctrine of Waste...............................................................................................................................................64
Tenant in Violation of Lease – Tenant who defaults ..........................................................................................64
Tenant Abandonment .........................................................................................................................................65
LANDLORD DUTIES ..................................................................................................................................................65
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Property Outline
Covenant of quiet enjoyment & Constructive Eviction ......................................................................................65
Partial Eviction ..................................................................................................................................................66
Theory of Illegal lease........................................................................................................................................66
Theory of Implied Warranty of Habitability: .....................................................................................................67
Retaliatory Eviction ...........................................................................................................................................68
LL’s Tort Liability ..............................................................................................................................................68
Theories Summary..............................................................................................................................................69
PROBLEMS OF AFFORDABLE HOUSING .....................................................................................................................69
Rent Control .......................................................................................................................................................69
VIII. PUCHASES/SALES OF LAND .....................................................................................................................70
2 BASIC SYSTEMS OF RECORDING............................................................................................................................70
STATUTE OF FRAUDS- ..............................................................................................................................................70
REQUIREMENTS FOR A MARKETABLE (MERCHANTABLE) TITLE ..............................................................................70
Remedies if not marketable title .........................................................................................................................71
DUTY TO DISCLOSE DEFECTS ..................................................................................................................................71
Merger Rule .......................................................................................................................................................72
THE DEED................................................................................................................................................................ 72
Generally contain . . . .........................................................................................................................................72
What if the deed’s description of land is contested? ..........................................................................................72
Types of Deeds ...................................................................................................................................................73
Title Insurance ...................................................................................................................................................73
Recording Systems .............................................................................................................................................73
IX. LAND USE CONTROLS...................................................................................................................................75
A. NEIGHBOR'S COMMON LAW RIGHTS - NUISANCE LAW ........................................................................75
1. Nuisance .........................................................................................................................................................75
2. Summary of Nuisance.....................................................................................................................................77
B. PRIVATE LAND-USE ARRANGEMENTS - SERVITUDES ..........................................................................79
TYPES OF SERVITUDES ..................................................................................................................................79
Termination of Servitudes ..................................................................................................................................87
Enforcement of Covenants by Condos and Cooperatives: .................................................................................88
C. PUBLIC REGULATION OF LAND USE ..........................................................................................................90
Can Use Zoning to Promote Gov’t. Objective: ..................................................................................................90
How does zoning usually work? .........................................................................................................................90
Pre-existing, Non-conforming Use .....................................................................................................................91
Zoning Flexibility:..............................................................................................................................................91
Aesthetic Regulation (Zoning for Taste): ...........................................................................................................93
Exclusionary Zoning - Controls on Household Composition: ...........................................................................93
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Property Outline
I. WHAT "PROPERTY" IS; THE PROBLEM OF DEFINITION OF
PROPERTY
Property invades just about every conflict between two individuals.
What is property?
a) Property is physical objects
b) Property is an individual's rights to a thing.
c) Property is rights. (ALI)
d) Blackstone
 Property is the sole and despotic dominion which man claims and exercises over the external
things of the world in total exclusion of the rights of the other individual.
 Do we have sole and despotic dominion over property? Not really because we have societal
restrictions.
 Property is more than what Blackstone thought it was. The body could conceivably be property.
e) Leo Tolstoy
 "Property is the root of all evil"
f) Madison
 Believes that we have property in just about everything. "Everything to which man may attach a
value and have a right."
 Connection to the fifth amendment.
g) Thomas Gray
 Most property in a modern capitalist society is tangible.
 Not all property rights pertain to things.
What are the sources of property rights?
1) Positive Law (statutes and cases) Legal Rights
2) Natural Law (Custom, CL) Natural Rights
 How do we know if something is a right, privilege or immunity?
 We can consult the codes and statutes for starters.
 5th and 14th amendment due process clause “property shall not be taken without due process of
law." 5th amendment, "nor shall private property be taken for public use without just compensation.
Whatever else it is property is a very difficult, hard to define concept. Thus be weary of very simple
definitions of property.
 prop is descrip of rel among people
 how we want it to be resolved based on undergirding:
 need for certainty
 encourage productivity
 promote sense of fairness . . .
II. THE UNDERLYING ASSUMPTIONS OF PROPERTY SYSTEMS
 Property- explains how conflicts between people are resolved. In resolving these conflicts
there will always be some sort of external reasons or policy driving this:
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Property Outline
(i)
(ii)
(iii)
need for order
need for encouraging productivity
fairness
Three different levels of analysis in the property questions:
1. entity - who is the entity with rights?
-individual
-group
2. substance - what are the rights bestowed to him?
3. rationale - What reasons - bestowing rights. Why are we giving him these rights?
Property:
1. individual / private—property as separate objects assigned to particular individuals.
 any future questions start from the assumption of individual control over allocation
2. collective—allocation of property determined according to needs of society as a whole (natural
forests, mining company, etc.)
3. communal—all individuals in the collective have equal rights of use
ex. of group property: highways, public buildings.
Remember to distinguish between the concept of property by itself and a property system.
Decision Making: which system; who gets it under that system?
Private
Collective
Communal /
Common
Who Can Exclude?
Who Can Use?
For Whose Benefit
Decisions are
Made?
When the Systems
Work Well?
individual
collective
individual
individual
individual
collective (but they
most of the time
when people feel
ownership (e.g., not
collective
collective
might decide indiv use is
better sometimes)
collective
the Soviet collective
farming)
strongly idealized
community / land
value is poor
THEORIES OF PROPERTY:
A. Rights Theory
1. special rights – arise out of rel or special transaction between individuals – you do something to
get it
2. general rights – natural rights - don’t arise out of event but all humans have the right to it
B. Theory of First Occupancy (Classical Theory) – special right
 "equal right to grab."
 If you get it, then it is yours.
 example, white settlers, patent law, finders keepers.
Problems with first occupancy
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Property Outline
(i) contesting claims. What do you have to do to occupy the land first.
(ii) What exactly does occupancy mean?
(iii) allocation- how much land is yours for settling the frontier?
(iv) fairness --"power theory” - if you are strong enough then its yours.
C. Labor Theory (Locke) – special right
 mix labor with object, we say this person deserves it, has now become your object because of
productivity.
 Intellectual property - you thought it thus we say it is yours, you invented it, you developed it,
then it is yours.
 We have this because of a sense of fairness and sense of productivity.
 Rationale: encourages industry, initiative, your labor is yours.
Problems with Labor Theory:
1. Assumes exclusivity of possession at the end.
2. Assumes that we are all at the same starting point
3. Rewards continuing manipulation of the environment "highest and best use"
4. What is earn? How much property do we have that was actually earned. Is
inherited property earned?
5. multiple laborers (who gets it?)
In sum: pretty simplistic, hard to quantify mixing of labor.
D. Personality Theory (ex. of general right)
 because human beings are human beings there are certain property rights we have to recognize.
people get these just because of who they are.
 Ex. freedom to make decisions.
 Individuals as human beings have a certain need for privacy. when we deny them privacy we
have problems ex. prisons.
 It is a way of asserting individual/political/social independence at liberty
Problems with the personality approach:
1. would have to divide equally
2. who decides what an individual needs
3. the general validity of the theory - how do we know whether or not privacy is
endemic to the human being?
4. Nevertheless, deeply ingrained in our society.
Tragedy of the Commons
Ex. have one plot of land. X wants to put additional cows on plot. This will lead to degradation of
the commons, The degradation will be felt by all, but he will only feel a small cost of his actions.
Acting on the basis of self-interest and hurts all. A classic example of this is pollution.
Another example is fishing in oceans- all together can create fished out species.
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Property Outline
Problem of externality - individual makes decision on how to use a resource w/out thinking about
the effect of action on another people.
How do we solve this problem?
(i) change the common system of property to a collective one. the group imposes limits on
who and how to use. Ex. hunting and fishing regulations.
(ii) bargaining with x - offer X certain benefits for behavior in a certain fashion. Need to
think here about the transaction costs. (private property reduces the transaction costs). (iii)
coerce X for taxes.
(iv) make it into COLLECTIVE PROPERTY which only certain people can use. Fishing
licenses, size of lobsters.
Consequences of using the first possession rule when we are dealing with these resources?
1) Might lead to over indulgence in capture technology
2) Inequality, same people control.
goods s/ flow to the highest-value user
Posner's Article:
To further the goal of the efficient use of resources, we need
1. universality of ownership – all resources owned/ownable
2. exclusivity of ownership in individual – individuals are owners, not groups
3. free transferability of resources – resources freely shifted from less- to more- productive
Purely private system- maximizes use of resources and economic efficiency.
What is the matter with compensation, money remedies?
(i) who pays?
(ii) how do you decide value of property. Can't always put value on some things.
(iii) time - increases value from then to now. Who gets the value of inflation?
When the government comes to take your home.
How does a state move from collective ownership to private ownership? How do we divide up?
Who gets it.
The Bottom Line- Compensation depends on your theory vis a vis the adequacy of theories.
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Property Outline
III. Acquiring Legally Cognizable Private Property Rights
A. Wild Animals
Acquisition by Capture:
Pierson v. Post, 1805 Mere pursuit is not enough but mortal wounding is
Facts: P was hunting a fox on wild, uninhabited land. He and his dogs were hunting and pursuing
the fox. Knowing that the fox was being hunted by P and within his view, D killed the fox and
carried it off.
ISSUE: who has ownership of the fox?
HELD: in view of the fox is not enough. The fact that the land was wild and inhabited is
important. The court looks at a bunch of treaties to decide this case because there wasn't much case
law. One authority hold that actual bodily seizure is not necessary to constitute possession of wild
animals. The mortal wounding of an animal or the trapping or intercepting of animals so as to
deprive them of their natural liberty will constitute occupancy. However, here, Post only shows
pursuit. hence there was no occupancy or legal right vested in Post and the fox became D's property
when he killed and carried it off.
Dissent: feels that property in wild animals may be acquired without bodily touch, provided the
pursuer be in reach or have a reasonable prospect of taking the animals. A labor theory that looks
to custom in accordance with law. Pro: acceptance by the community con: who makes these rules?
Are they really just or just local prejudice.
Rule: mere pursuit of a wild animal in uninhabited land is not enough to create possession.
First possession occupancy is key; idea for substitutes. Actual bodily seizure might not be required
if mortal wound.
Someone "not abandoning" his pursuit may be in possession if
(i) unequivocal intention of assuming dominion over the animal
(ii) depriving the animal of liberty—mortal wounding
(iii) brought under certain control.
Do we need to have all of these thing? It appears so although it is not completely clear.
Rule of Constructive Possessionown everything that naturally comes onto your land like wild animals. Keeble v. Hickeringill
Custom/ All that is Possible:
Ghen v. Rich, 1881 Custom matters; when you’ve done all that you could, that’s enough (possess. complete)
Facts: D purchased a whale at auction from man who found it washed up on the beach. The
whale had been killed at sea by the crew of P's whaling ship which left P's identifying bomb-lance in
the animal. The custom was when the crew of a whaling ship killed a whale using its identifying
bomb-lance, the ship's owner was considered the owner of that whale. The finder ignored custom
and sold whale. Here we have marking, pursuit, and mortal wounding.
Held: the court mentioned:
1. Taber v. Jenny: marks of appropriation enough
If the whale is killed and left ashore with the marks of appropriation, it is the property of the
captain.
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Property Outline
2. Bartlett v. Budd: Involuntary abandonment (anchor fails to hold). After initial capture, possession was
complete.
Anchor failed to hold in this case. Possession here was complete because whale was killed
and marked. Possession unequivocable intention of appropriating for own use.
3. Swift v. Gifford: Notice to world is enough for possession
Whale escaped wounded and with the iron attached to it. Held that first iron marking was
enough. Goes to first captor. Ps did all that it was possible to do here to make it theirs.
This particular trade usage was necessary to the survival of the whaling industry, for no one
would engage in whaling if it could not be guaranteed the fruits of his labor.
Rule: When all that is practicable in order to secure a wild animal is done, it becomes the
property of the securer who has thus exercised sufficient personal control over the wild
animal.- Marks of Appropriation here sufficient enough to establish a property right.
Disadvantages to using custom
1) custom changes over time
2) what about when a new person who does not know the custom comes into the society?
Partly domesticated wild animal. The more exotic the animal, the more notice is given that someone owns it
The person who can establish that the animal has a habit of return get the partly domesticated
animal.
In dispute between hunter and possessor of land, possessor wins. ex. wild animal, not native to the
area walking around your back yard. Dispute b/w 1st owner and you, the lst owner should prevail,
first occupancy. Ex: Iguana in NY.
The trespass here is interference with someone's legal right which is different from regular trespass
which is interference with a person.
Business Competition
Keeble v. Hickeringill, 1707. Intentional frightening of wild animals no good. Regular commercial competition is
fine (general CL rule); constructive possession
Facts: P contended D scared ducks away from his pond resulting in damages. Here P is the owner
of the land who sets decoys to trap ducks. D came and chased them all away.
Issue: May recovery be had for the frightening of wild game off one's property?
Held: Yes. Damages may be recovered for intentional frightening of wild game off another's land.
Although no title to the game existed, P was using his land in a lawful manner. Court held for
public policy and fact- he had "constructive possession of ducks".
Note: How can this case be reconciled with Post? Private property v. uninhabited land. This court
wants to protect the sanctity of business, money making venture. Do we think that business should
be protected? Yes, this is our labor theory. Labor theory here while in Post possession theory.
Possession is certain control; control lost if marked; if no more c/h/b done to effect possess & ctrl
General bias in Property  explicit rules
Treasure Hunt –
rules are almost identical to those for possession of wild animal
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Property Outline
B. LABOR
Labor as a kind of property. Takings applies to property, not liberty.
Under what circumstances can the state force us to labor? Do we have a right to resist?
We have difficulty in accepting labor as a subject of property.
Two situations where the subject of labor comes up
1.
conflicts between individuals.
2.
Conflicts b/w individuals and the collective- usually comes up in a constitution setting.
Taking = first have to prove that labor claim = property 5th amendment "Just Compensation"
due process = property or liberty.
TORTS:
may get damages for economic loss of labor.
LABOR:
Property right in use of skills in your body.
Slavery:
Commonwealth v. Aves, if you determ law is source of rightsbound by positivism; this case is based on natural
rights
Facts: a woman from the south, citizen of Mass.
brought a slave child with her when she came
to Boston to visit her father. Harris (lawyer) brought action acting for the state. This was an action
for habeas corpus. The lower court granted the writ. Ave's argument was that the girl was personal
property and the right of property follows you. He argued that he was the child's guardian.
Issue: Can a citizen in the US (living in a slave state) enter Mass, bring a slave with him, restrain the
slave from acquiring liberty during their visit, and transport him out of the state against his will?
Does the right of personal property follow the person (when the property involved is a slave)?
Held: Custom - slave brought voluntarily and unnecessarily into a state-free. Court doesn't follow
custom in this case. mention that slavery was abolished in Mass. b/c it is contrary to the principles
of natural justice. Slavery is opposed to natural rights (i) the laws of other nations/states (ii) the
constitution and law of the United states. Held that even in free states kinds of slavery enforced. ex.
contracts, "loci contractus" - place of contracting governs. Held that not going to determine the
laws of Mass. by recognizing slaves as property in Mass. Fugitive slave clause does not apply
because this child was not a fugitive.
Rule: An owner of a slave in another state where slavery is warranted by law, who voluntarily
brings such a slave into this state, has no authority to detain him against his will, or to carry him out
of the state against his consent, for the purposes of being held in slavery. Littleton v. Mass. Negro
born in state free.
Property of Slaves - difference between maximum possible output and actual output
Modern Applications and Civic Duties:
Hurtado v. United states, 1973, Labor is property, but the 5th amendment does not require that the govt pay for
the performance of a public duty that is already owed.
Facts: Mexican citizens being brought into the country illegally. they are incarcerated, being held as
material witnesses. (we can all be held if needed as a material witness). They can post a bond and
be let out. They could not post bond. While incarcerated they were paid $1 a day. The Mexicans
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Property Outline
claimed violation of just compensation and due process (5th amendment). They want $21. Ps
claim that their property is their freedom and their ability to labor and earn a living.
Held: Ct said $20 when trial in progress, $1 before trial begins.
How does the court dispose of the "takings" claim? the state wins. This is a burden that everyone
has to share- public duty. there is a duty to give evidence. It may be property but it is not a
"taking." Needed to prove property, taking and compensation. they failed on taking. $1 is
compensation according to the court. Cts final rationale is to pass the buck: congress did this.
Congress is the place to go and lobby.
Dissent: Brennan wants to interpret the statute to give $21 a day. Douglas sees this as a violation
of due process. sees an equal protection problem here also. see this is indigent in jail
Note: when you are called on for jury duty you have a duty to serve, it is a public duty. If you
claimed a violation of the 5th amendment (b/c of inadequate compensation) then you would lose,
like in Hurtado.
other ex – jury duty, draft
Justifications for making civic duties non-voluntary services:
(i)
Need for a random sampling of pop.
(ii)
involvement of ideology
(iii)
Sociology of Roles
(iv)
price of labor
(v)
implied compensation- everyone receives a benefit from the jury system.
Involuntary Pro Bono Work:
Family Division v. Moultrie, 1984 Labor not taken unless taking the unpaid cases  put you out of business
Facts: Ps are three attorneys who regularly request assignment of cases in the Family Division of
the Superior Court Juvenile cases). Ps are occasionally selected to represent indigent parents and
children, however, they receive limited compensation for their services. 3 constitutional claims being
made here.
1.
involuntary servitude in violation of the 13th amendment
2.
taking of property - 5th amendment
3.
denial of due process - 5th amendment
In order to be one of those CJA lawyers, had to do pro bono work. Attorneys say that the law is
invalid on its face and as applied.
Held: the majority did not take the involuntary servitude claim seriously because they could have
gotten out of this. they consented to be members of the bar knowing that they had to do pro bono
work, thus no taking problem. May be a problem of taking if it is so burdensome that it prevents
one from making a living practicing family law. Note: civic duty exception to public use takings
(draft; jury duty)
Question of Degree- Federal Government won and CAN force a lawyer to take a case.
Problems of court appointed lawyers:
1. lawyers do half-ass work, maybe represent with little zeal
C. LAND
How do we initially establish rights to land?
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Property Outline
Johnson v. M'Intosh, 1823 - action to determine title to land. U.S. has conqueror rights over nat. am. –
conquest gives title which can’t be denied. Trad. acquisition is conquest or possession.
Facts: P claimed valid title to land granted him by Indian Chiefs of certain Indian tribes. D
claiming under U.S. title.
Issue: Do the Indian tribes have the power of conveying absolute title of their lands to others?
Held: No. Ct looked to history. The discovery of the Indian -occupied lands vested absolute title
in the discovers (conquest theory); and while the indian inhabitants retained title of occupancy, they
were nevertheless incapable of transferring absolute title to others. In the end Marshall seems to
apply principle of naked power. He seems sympathetic to the indians but feels that it is too late to
turn the clock back now. Also Indians would leave the land as wilderness, would not work/develop
the land. (Labor Theory)
What is the difference between occupancy and possession? The Indians have occupancy. The
Europeans started taking possession of their land.
SYSTEMS OF LAND:
State ex rel Thorton v. Hay, 1969 Who owns the area between the dry sand and the beach?
Facts: deals with a very provocative commons area. The state claims that the public has acquired
an easement over the dry sand area for recreational purposes, while D claims that they own the land
and should be able to construct a fence around it.
Held: the public should be able to use the dry sand area. Decision based upon a theory of custom
developed by Blackstone. In order to be custom, it must be (i) ancient (ii) right exercised w/o
interruption (iii) use is peaceful and free from dispute (iv) reasonableness of the custom (v) certainty
of the custom (vi) custom is obligatory (necessary?) (vi) custom not repugnant/inconsistent to other
laws. Ct said "such a usage as by common consent and uniform practice has become law." It has to
be ancient. Ancient defined as happening so long that no one can remember differently.
Rule: Custom can confirm a public right, and at the same time take from no man anything which he
has had a legitimate reason to regard as exclusively his. The public has the right to the dry sand area;
thus, the state has an equitable right to protect the public in the enjoyment of those rights by causing
the removal of fences and other obstacles. Easement by custom. Custom est. the limits of ownership.
D. INTELLECTUAL PROPERTY:
Want to incentivize ideas.
What is the problem with making ideas common property?
 It can steal creativity and initiative. Leaves no incentive for new ideas.
 In order to reward creativity, we have to protect ideas and reward their creation.
A series of laws have grown up to protect individual ideas:
(i) Common Law Copyright
 an idea, song, book etc is protected until it is generally published.
 Once it is generally published, then it is in the public domain and can no longer be protected.
What constitutes general publication.
 Putting © 1992 enough to make it a copyright.
(ii) Statutory Copyright
 federal copyright. the states cannot legislate in this area; federal preemption of copyrights.
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 Prior to 1976, the Federal Copyright Act gave you 28 years and you could renew for another 28
years. now, you have protection, or the life of the creator plus 50 yrs.
 Ex. of this is Mickey Mouse. Disney kept trying to change Mickey slight so that they could
renew their copyright every 28 years.
Can the government use eminent domain to take away property other than land? Yes. Can it
do it for intellectual property? not quite clear. Government can control some things under the cover
of national defense.
What theory of property protects intellectual property as property interest? Labor theory.
King v. Mister Maestro, 1965
Facts: case about who claims Martin King's "I have a dream" speech. D made a phonographic
record of King's speech and sold copies w/o King's consent. These sales began around sep. 14, and
King received a copyright on Oct. 2. King claimed that D's action infringed upon his copyright.
Issue: Was the delivery of the speech an act to put speech in public domain?
Held: Ct rejects the argument that if you talk to some 500 people that is publication. This is true
b/c it would be unworkable any other way - every time you talked about your idea, you would lose
your right to copyright.
Rule: an individual cannot use another's voice and/or speech w/out express permission from the
one being exploited. oral performance cannot be considered publication no matter how many
people the performance is directed towards.
Charles Reich, The New Property Functional theory of property
Property used to be just physical objects because it is those that gave us security. Now, intellectual
property gives us the same sense of security, so it’s protected as well.
SCt has held the right to practice a profession as property.
PATENTS:
Can patent process or product. Length for 17 years.
Nelson, Peck and Kalachek, Technology, Economic Growth and Public Policy
How should we protect people's ideas? We need to strike a balance b/w encouraging creativity
and avoiding harming the public by depriving them.
Diamond v. Chakrabady – cannot patent a living thing
E. THE HUMAN BODY
The Concept of the human body as property is a very new and emerging area in property law.
Questions: Can the body be property? Does a person still possess right to removed body parts? If
something is property to what extent does this turn on the question of remedy?
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Break those cases into three areas:
1.
issue of the human body itself example, abortion
2.
Parts of the body, either while they are still a part of the body or if it is already
removed example, kidney selling of sperm
3.
Products of the human body in an altered state, i.e. reproductive technology
We allow the sale of some body parts such as blood plasma.
Why don't we allow a person to sell a kidney?
1. don't want people to make uninformed and hasty decisions based on money for valuable
body parts.
2. blood is easily replaceable - only have 2 kidneys.
Key is actual possession – if they’re attached, you have possession; you don’t have constructive
possession of unattached body parts
Moore v. Regents of the U. of California 1990 Body as commodity
Facts: Researchers at UCLA, unbeknownst to Moore, used specimens of his tissue to produce a
potentially lucrative cell line
Issue: May a person whose tissue is used for profitable research w/out his knowledge maintain a
conversion action?
Held: No. While the doctor breached his fiduciary duty by performing the medical procedure
w/out informed consent, this is a tort action against the doctor. Majority here say that there is no
conversion (a tort that protects against unauthorized intervention in personal property).
Two parts of property according to ct.
1. Must have possession - here there was no possession. Once out of your body, they’re not
your property.
2. Ownership interest - there is no ownership here because
a) there are no cases saying there is ownership
b) there is state statute that hinders Moore’s claims of property ownership.
That a person's tissue could be property is at odds with common views on ethics. Final, public
policy reason for decision: to extend conversion liability to bodily tissues that have been removed
from a patient would “threaten with disabling civil liability innocent parties who are engaged in
socially useful activities, such as researchers who have no reason to believe that their use of a
particular cell sample is, or may be, against a donor’s wishes.”
Concurrence: Human tissue should never be viewed as property.
Dissent: Assuming that current conversion law does not apply to a person's tissue, it should be
extended. Found it reprehensible to allow another person to economically benefit from the
nonconsensual use of another's tissue.
Rule: A person whose tissue is used for profitable research and development without his
knowledge may not maintain a conversion action therefor.
Note: Any theory on which the other Ds can be held liable? yes, under a theory of the employee as
liable for the acts of the employee acting within the scope of his employment. Can get compensated
for not given opportunity to make choice.
McFall v. Shrink Can the state take your bone marrow to save another person's life?
Facts: P needed bone marrow. D (cousin) refused. P wants forced donation.
Held: Court refused.
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PROPERTY SYSTEMS SUMMARY- QUESTIONS TO ASK
1.
WHO HAS RIGHT TO EXCLUDE?
2.
WHO HAS RIGHT TO USE?
3.
FOR WHOSE BENEFIT?
1. universal ownership systems
2. limited ownership systems
a. gov’t control
b. ctrl by group or indiv
c. indiv control
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IV. RIGHTS OF PERSONS OWNING LAND IN FEE SIMPLE
ABSOLUTE
A. Model of Absolute Rights within One's Own Boundaries (FSA)
A fee simple absolute is a freehold estate of virtually infinite duration and of absolute inheritance
free of any conditions, limitations, or restrictions to particular heirs. It is an interest in real property.
Maximum rights that a person can have in land.
Several components to a fee simple absolute—Blackstone Model
1. Absolute right to exclude
 Exceptions: can't exclude government officials; emergency planes can land; can retrieve children
and escaped animals.
2. Absolute privilege to use.
 HOME IS MY CASTLE IDEA.
 Exceptions: zoning, can't have a nuisance on your land.
3. Freedom to transfer
 Exceptions: can't transfer to defraud, corporation can't own land in certain states, spousal
rights, green acres laws
4. Indefinite ownership
 rights are eternal.  greatest gap betw rich and poor
Alternative Approaches
 Usufructary - right to use given for a specific purpose. If stop using for that purpose than the
land is taken away. Ex. prescriptive easement
 Time limit rights - can have a x amount of time. Israel and the 99 year leases.
 Life of Owner - Use Defined by Event - (i.e. life estate)
Selecting an Approach
A. If we are looking for efficiency, probably pick indefinite ownership b/c it gives more
incentive to improve the land.
B. If we are looking for equality, probably not pick indefinite ownership (don’t want
old
money ruling). Pick time limit rights.
C. If we are looking for preservation of land, probably pick indefinite ownership. Otherwise,
people will pillage land and then abandon it.
D. If we are looking to minimize transaction costs, probably pick indefinite ownership.B.
ENCROACHMENTS- INVASION OF RIGHT TO USE/EXCLUDE
-issue of FSAIn encroachment, the right to exclude and the right to use are violated by someone coming onto
your property. In FSA you have both the right to exclude and the right to use. CL strict
enforcement of freedom from encroachment rights. We want to protect underlying belief that
persons are attached to their property.
Property rule –
Holder of entitlement sets price and decides to sell. State cannot force the sale.
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Property Outline
Disadvantage - If property owner wins, holds all the cards. Encroacher will have to pay
price or tear down. Might not lead to most efficient solution
Liability rule –
Entitlement can be sold without your consent and state sets price. In return you get
damages.
Disadvantage - private condemnation possible
Advantages - may promote efficiency, and gives both people something
Inalienable Entitlements—
person who holds the entitlement cannot sell it even if he wants to.
Ex. Body parts selling.
Pile v. Pedrick, 1895 absolute property right to be from encroachment
Facts: this case went on for very long time, the two parties hate each other. Have 2 adjoining
tracks of land. Based on survey he built 1½ inches over line. Party wall, both can use it. P insisted
that entire thing should be taken down.
Held: have an absolute right to remove the wall. absolute right against encroachment. Does not
matter that D had hired a surveyor, good faith didn't matter. Had to remove the wall within one
year. this decision doesn't see, rational.
Rule: an individual has no right, at law or equity, to occupy land that does not belong to him. He
has the absolute right to exclude
Calabresi article: Are we going to enforce property rule or liability rule?
a. Difference between property rules and liability rules. property rules are where you
enforce the entitlement of the P in kind. What is property? the right to be free of
encroachments. If you apply property rule, you can get enforcement in kind. If you
apply strict liability rule, then the P gets monetary compensation. Sometimes
impossible to attach monetary value.
In any situation there are 4 possibilities
Ex. Pile v. Pedrick,
1. Property Protection for P = injunction. Wall is torn down.
2. Liability Protection for P = P gets damages. Wall stays. [D gets what he wants]
3. Property Protection for D = D can encroach. Wall stays.
4. Liability Protection for D = D gets damages. Wall is removed. [P gets what he
wants]
Remedy #2 and #4 have in common that both parties win, get something. These
are compound remedies.
Always ask what interests are and how they’re being honored.
b. Difference b/w valuation and agreement:
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Property Outline
(i) under a property rule, you have a right unless you voluntarily agree to give it up.
An entitlement can be brought only if the owner wishes the sale (state cannot force
the sale under the property rule).
(ii) under the liability rule, the state can force sale. If we enforced property right
always, then society would come to a halt.
Example: can't build a freeway if one person objected. We use liability b/c society
needs it.
c. Inalienability entitlement are things that you cannot sell even if you want to (ex. you
can't sell yourself into slavery).
d. Why choose between the property rule and the liability rule?
(i) the property rule is imposed when damages are insufficient and in order to
discourage bad conduct such as building on another's property.
(ii) the liability rule is imposed to promote efficiency, societal interests outweigh
individual interests.
e. Rules v. Standards - the extent to which the law should be based upon certainty. (i) rules
are bright lines and sharp distinctions. Sometimes rules are applied and sometimes standards.
Raab v. Casper , 1975
Facts: D relied on what he claimed the settler had told him about the boundary line. He never
knew the boundaries of the property. P informed D of problem before completion. D constructed
both a cabin and a house which were partially located on P's property.
Held: if you are warned about your mistake and you continue to persist, then you violate both
good faith and negligence (have to hold D to the reasonable man standard). In this case the
cheapest cost avoider was D. The liability rule can deter people from doing the activity if the
damages are high enough (the equivalent in torts is punitive damages) CA had a statute on
encroachments - it is a good faith improver statute. What was the result under the statute? Case
remanded to see whether D was really negligent. If D constructed something where he knew or
should have known, it is hard for D to prevail under the good faith statute.- He was not a good faith
improver if he should have known- statute had liability rule.
Head v. Amoskeag, 1885
Facts: D constructed a dam in order to use river power to work the mills. As a result of the dam,
P's land was overflowed and P claimed damages under the Mill Act of 1868 (the act said that if a
dam caused another's land to be overflowed, then damages could be assessed). In order to preempt
the statute, P had to make a constitutional claim. Under the statute the dam had to be for public
benefit and had to be necessary. claimed that the statute was an unconstitutional taking of his
property because it was not for public use and thus violated the 14th amendment. Takings not an
issue because under statute he could get just compensation. (Why didn't he sue for CL trespass?
CL exists until statute is passed).
Held: P lost. The court said that improvement of the property is in the public interest. Court never deals
with the problem of how about the fact that this is a private party. Although it might have been for
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the public interest, it was still taken by a private co. (not taken by the state). Seems that the court
enacted means to get to the result they wanted.
Rule: If a statute is a constitutional exercise of legislative power and provides a suitable
remedy for damages, it cannot be said to deprive an individual of his property w/out due
process of the law, in violation of the 14th amendment. While here a private use,
overwhelmingly for the public good.
Note: sometimes railroads could condemn land. Liability rules- used when trans. costs too high.
Note: no trespass claim, b/c statute trumps CL  need to attack constitutionality of statute
4 ways to resolve situation of conflict entitlement (using the Head case as an example).
P's entitlement is to be free from flood D's entitlement is to build dam.
1. Property rule protection for P
- obtains injunction, no dam
2. Liability protection for P
- gets damages, dam built
3. property protection for D
- P gets nothing, dam built
4. liability protection for D
- P gets injunction, D gets compensation
Surprisingly #4 is used a lot in the law.
Always ask: would a liability remedy be possible? Would a property remedy be possible?
C. LIMITATIONS ON THE RIGHT TO EXCLUDE
Historically courts have given great protection for right to exclude. However, that right is not
absolute, there are exceptions. (see Shack and Pruneyard)
State v. Shack, 1971 the right to exclude others is subject to limits imposed by society
Facts: Ds, field worker for SCOPE and gov’t attorney entered upon private property, against the
orders of the owner of that property to aid migrant farm workers employed and housed there. They
were charged with trespassing after refusing to leave under NJ statute.
Held: Real property rights are not absolute, and necessity, private or public, may justify entry upon
the land of another. Of course, the owner of such property has the right to pursue his farming
activities w/out interference, but here, there is no legitimate need for the owner to exclude those
attempting to assist the migrant workers. Otherwise, the migrant workers’ rights are being violated.
Key here is the unequal strength of the parties.
Limitation on right to exclude - Landlord-farmer took on people as entrants (workers) and they are taking on the
rights here.
Note: On appeal, landlord lost. The questions asked were:
1. whether acts in question amounted to a crime
2. if so, is the statute constitutional?
Landlord ran into trouble with part 1.
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Property Outline
Pruneyard Shopping Center v. Robins, 1980 Const. rt to free expression v. Property rt to exclude
Facts: Ps peacefully and orderly distributed pamphlets in the center courtyard of D's shopping
center. Ps asked to leave, b/c D had policy not to permit any visitor or tenant to engage in any
publicly expressive activity that is not directly related to its commercial purposes. Ps sued. P's made
freedom of speech claim and said the exercise of their constitutional right required entry onto the
land. Ds said there were other alternatives, didn't have to be at their shopping center. D also
claimed that having P's petition on his property violates his rights under the 5th amendment.
Held: There was a state constitutional right of free expression which could possibly conflict with
D's property rights. Court decided that there are property rights at stake b/c exclusion is something
we want to protect. However, there was no takings b/c it did not unreasonably impair the value or
use of the property to have P on it (impairing the state-created right to exclude does not reduce the
property value of the shopping center). Mall owners retain time, manner and place restriction rights.
Rule: Individuals can exercise protected rights of expression and petition on another's
property w/out infringing upon federally recognized property rights or his First Amendment
rights, as long as the individuals are peaceful and orderly.
Note: Federal constitution does not require owners to allow access to their property. However ct
has held that a state may broaden a state constitutional right of expression on private property
beyond the protection afforded by the federal constitution.
D. LIMITATIONS ON THE RIGHT TO DESTROY
Right to destroy is not absolute.
Eyerman v. Mercantil Trust Co, 1975 You can do what you want with your property when you’re alive but not
when you’re dead.
Facts: Owner of property is dead. Directed by her will to destroy her house. P contends that
razing the house will adversely affect their property rights and is contrary to public policy.
Held: right to destroy is limited by public policy. Destruction of the house will result in loss to
public.
Rule: When a decedent's conditions in his will are contrary to public policy and adversely
affect another's property rights, they will not be enforced by law.
Question: What if the destruction of the property does not affect other people? Society does not
allow you to take a sledgehammer and destroy your car, even if it does not harm people ... you are
just considered nuts.
Historic Landmark Ordinances also limit right to destroy.
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Property Outline
E. Losing Rights by Adverse Possession
--established by statute only-If a person who does not own land possesses it for the period of time specified in statute of
limitation, he/she acquires title to the land. A (adverse possessor) and O (legal title) Respective
actions by each would be quiet title and ejectment. Law of adverse possession favors certainty and
security over encroachment.
Possessor's rights before end of statute of limitations –
before statute of limitations runs, adverse possessor has all rights of possessor against everyone
except O.
- can bring a trespass action against one who enters the land
- this is because trespass is an action that vindicates possessory, rather than
ownership, interests in the land.
- can sue a 3rd party for damages to the property
- can transfer possession to another (tacking)
- but he has no interest in the property valid against the true owner.
Statute of Limitations
After a certain number of years (5-21 years depending on the state) owner loses right to bring action
of ejectment. Once owner is barred from suing, the adverse possessor has title to the land.
Statute of Limitations begins running at the moment of encroachment.
In jail or legal disability - no legal action can run against you at that time.
Rights after expiration of statutory period
- Bars the owner's claim of possession
- Creates a new title in the adverse possessor.
- Can’t be recorded, however, until one gets a claim of quiet title
- No penalty for failing to record a title gained by adverse possession
- Easements may not be extinguished
- Not valid against interest of government
Statute of limitations (rule) v. Laches (equitable doctrine – if stat limit hasn’t run, action might be
precluded if you’ve slept on your rights – too much time has gone by). If you wait too long the
court won't allow you to bring action. Indefinite period of time applied by the court.
Why don't we use laches instead of statute of limitations? definiteness –Laches= remedy against
people who sit on right, in equity.
Elements of adverse possession:
1. must be open and visible.
Purpose is to give notice to the owner. O should be penalized only if he could reasonably be
expected to know that another person has entered the property, and was asserting a claim to it. Acts
of A must give knowledge to a reasonable person of his presence on property.
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Property Outline
2. must be notorious.
Neighbors knew about it – widespread knowledge
3. must be exclusive.
This really means that he must not be sharing control of the property with the true owner, and the
property must not be available to the public generally.
4. must be actual.
At least a reasonable percentage of the land claimed by the adverse possessor must actually be used.
5. must be continuous.
This requirement does not mean that the possessor must occupy the property every day. Seasonal
possession may be enough if the property is such that this kind of seasonal use is deemed enough
(look to neighborhood’s use / look at nature or prop.). (See Howard v. Kunto) An attempt by the
true owner to reestablish his entitlement may constitute an interruption.
6. must be hostile/adverse.
The adverse possessor's claim must be legally hostile to the owner's legal right. Hostility does not
mean animosity; just that the possession is without the owner's consent. In a few states, A m/ also have
the intention to claim title
7. under claim of title/ claim of right.
The purpose of this requirement is to assure that the true owner is not lulled into believing an
occupant will make no claim against him.
Tests, depending on the jurisdiction:
Some jurisdictions use subjective test, some use objective approach
(i) good faith of A
did A think that it was his or know it was someone else’s?
(a) subjective test (minority view) – did he believe
(b) objective test (majority view) – reasonably believe
Note: if in good faith & lose AP claim, c/ get improvements you’ve made
If A is a willful encroacher and loses AP claim, O gets A’s improvements
(ii) intention to claim title for himself, no matter whose land it turned out to be,
under all circum.
-usually subjective test
(iii) m/ know it’s not yours
(iv) rootedness
-rare – psychological attachment to the land
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Property Outline
8. under color of title.
(not required for most states). Helps establish the content of claim (i.e. area covered by deed). It
refers to a claim (by A) founded on a written instrument (deed or will) or a judgment which for
some reason defective or invalid.
A only occupies here
1
2
3
4
Cts tend to look to area occupied if no color of title.
Without color of title (i.e., defective/invalid deed), A gets area occupied and m/ meet requirements
for each area occupied.
In most jurisdictions, if A thinks she has valid deed to all of them but has invalid deed to all of them
and only occupies #1, color of title principle  A gets all 4.
In some jurisdictions, this is not true – A only gets only occupied area.
Other Elements:
Payments of taxes:
in some states, payments of taxes is important to meet adverse possession. However payment of
taxes alone can never establish title of adverse possession.
Illegality:
If A’s involvement with land use is illegal, A may not be able to succeed.
Tacking:
A1
A2
A3
15 years. Tack?
One who has adversely possessed property for less than the statutory period may not yet have title
to it, but he nonetheless has a possessory interest. That interest is capable of being transferred to
another, by oral transfer, written deed, bequest, or even inheritance.
 A c/ add together time of different O’s.
 A c/ add together time of A’s who are related.
 No statute of limitation on land when you’re in jail or if you have a disability.
Tacking allowed where privity exists
While privity does not have a precise definition in this context, it means in general that the two
parties must have some continuity of interest, that the recipient must have a direct relationship
(usually familial or economic) with the transferor.
Howard v. Kunto, 1970 Tacking of As through parol; continuous use is the normal use for that land
Facts: Ds took possession of a summer home under a deed which unknown to them described the
adjoining property. After discovering the mistake , P obtained a conveyance of the deed which
described the property occupied by Ds, then sought and obtained a judgement quieting title in
himself. Several successive purchasers, over a period of 10 years, had taken possession of the
disputed tract under the same mistaken deed.
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Property Outline
Held: Where several successive purchasers received record title to tract A under the mistaken belief
that they were acquiring tract B, immediately contiguous thereto, and where possession of tract B is
transferred and occupied in a continuous manner for more than 10 yrs by successive occupants,
there is sufficient privity of estate to permit tacking and thus establish adverse possession as a matter
of law. The technical requirement of "privity" should not be used to upset the long periods of
occupancy of those who in good faith received an erroneous deed description.
Continuous
use - even if just summer home, the uninterrupted possession during summers is sufficient to
establish adverse possession. That is the normal use for this type of land.
HYPO: Tenant has a 30 year lease. What if A (not T) tries to adverse possess against landlord?
Since Landlord has no RIGHT OF ENTRY- no way to establish dereliction for adverse posession.
A can adverse posess the lease however (all that T possessed).
Interests not affected by adverse possession:
1) future interest - a future interest is a present right to possession of property in the future.
2) liens, easements, equitable servitude - if land is subject to these actions, when A enters by adverse
possession, title remains subject to those interests.
3) Government land - a government is exempt from operation of statutes of limitations of public
policy. Very difficult to get government land in adverse possession.
Van Valkenburg v. Lutz, 1952
Facts: D traveled across a tract to reach his home on a nearby parcel every day for many yrs, and
also built a shed and kept a garden on the tract, but about 20 yrs later P purchased the tract, when P
demanded that D vacate the land (small feud had developed b/w the two), D obtained a judgement
that granted him a right of way by prescription over the tract and then in a judicial proceeding
established title to the tract by adverse possession.
Issue: May title to a parcel vest in an adverse possessor who occupies the parcel under claim of
right, protects the parcel with enclosure, improves or cultivates the parcel, and maintains that state
of affairs for the statutory period?
Held: Yes. In this case, the elements permitting taking title by adverse possession were not
present. D did not cultivate the entire premises claimed, furthermore there was no improvement on
the land, the only structure of any kind was the shed that D with the conceded knowledge that he
did not own the land built upon it.
No ill will (D admitted that O owned the land)  not adverse  no claim of title
Dissent: There is enough evidence to support D's adverse possessor claim.
Ex. there was a "traveled way" across the property, and D operated a truck farm there.
Rule: Title to a parcel may vest in an adverse possessor who occupies the parcel under claim of
right, protects the parcel by an enclosure OR improves or cultivates the parcel and maintains that
state of affairs for the statutory period. While actual entry here, requirement of substantial
improvement of land not found.
NOTE: MY NOTES SAY THAT IT’S THE FACT THAT THE CLAIM WASN’T
ADVERSE, NOT THAT THERE WEREN’T ANY IMPROVEMENTS, THAT MADE THE
CLAIM FAIL.
Note: in other states, A’s actions c/ affect whether requirements are met but c/n defeat if req. are
met
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Property Outline
Note: If you buy property you are on notice for going over there to make sure that there is no one
living on your property. You can always cut off adverse possessor by bringing an action to evict
them, unless 20 yrs magic period has passed.
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F. Public Takings of Private Land
"property shall not be taken w/o due process of law." 5th Amendment "nor shall private property
be taken for public use w/o JUST COMPENSATION. For Posner rationale duty to
compensation as check on Governments power.
 Factors = 1- public use, 2- property int., 3-taken, 4-just compensation?
2 Kinds of Takings:
1. Eminent Domain – takes title
2. Regulatory Taking – takes less than title, by way of regulation
 different rules, so 
First Question = is this the taking of title or something else?
General Principles in Analyzing Cases:
1. How does ct define prop? (actual definition) What body of law is used to determine whether
prop int involved? (state / custom?)
2. How much interference is required?
3. How many cases fail at the level of property v. takings? Are there reasons why the ct took one
route vs. another?
4. Some bright line rules, but mostly there aren’t – mostly principles
5. take heart; it’s difficult
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Four Step Analysis
1)
Has the public use requirement been met?
a)
If obtaining for public benefit, YES.
Hawaii Housing
Poletown (GM)
Oakland Raiders (recreation – maybe)
b)
If preventing public bad (nuisance; health & safety), it’s an exercise
of police power so we exit the Takings analysis b/c you don’t have
a property right to do bad things, so no property right c/b taken.
No taking.  out of Takings anal. (Can do it and don’t have to pay
for it.)
Hadachek
Note: if not in police power  may need compensation
Lucas – if public bad and w/in police power but eliminates all economically viable
use, it could still be a taking, though that’s not how lower courts have interpreted it
2)
Is there a property right involved? (balancing test)
Phillips – legal aid – account interest is property
3)
has it been “taken” in a Constitutional sense?
Not a Taking
Penn Central – historical preservation  taking
Hadachek – impairment of use  taking
Per Se Takings
Loretto – permanent physical invasion = per se taking
Kaiser – right to exclude; permanent physical invasion
Lucas – all economically viable use
Carves out another per se category of “all economically viable use”
-if there isn’t a per se taking, must go on to balancing testPenn Coal v. Mahon – balancing test – what’s taken from person v. what’s left – too far
(99% taken is probably too far; 5% taken probably not Takings)
Keystone – conceptual severance
Nollan, Dolan – nexus + proportionality
4)
Has complaining party already received some form of compensation?
- reciprocity of advantage
Almota – improvements ; value of lease ; option to renew 
U.S. v. 564.54 – non-transferable values are subjective (use objective std. for fair mkt val)
U.S. v. Fuller – what the gov’t giveth the gov’t can taketh away
First English – m/ compens. for temporary takings
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Property Outline
Calebresi Remedies:
1.
Property protection for government Govt takes (no compensation)
2.
Property protection for P. P gets to keep property
3.
Liability protection for P. Govt can take, pay P
4.
Liability protection for Govt. P can keep but must pay to government. - such cases will
invalidate govt action.
Note: liability remedy  for title taking, both parties get something
Most of the cases fall under #2.
Remedy for a takings:
1) compensation
2) injunction
3) declaratory judgment
PUBLIC USE- What constitutes Public Use?
Hawaii Housing Authority v. Midkiff, 1984 Public use is product of legislative determination; must be
reasonably related to a conceivable gov’t / public purpose
Facts: Hawaii, through its Housing Authority, sought to redistribute land held in fee simple from a
few families to the pop in general. Condemnation proceeding were instituted, and P sued,
contending the statute allowing for eminent domain exercise violated the just compensation clause
of the fifth amendment.
Held: the public use clause of the 5th amendment does not proscribe the exercise of eminent
domain power where such is reasonably related to a conceivable public purpose. Here purpose was
to allow for more widespread ownership. The statute related to a legitimate governmental interest
(stability to the state's economy through more diversified program of land development).
Public Use- product of legislative determination . Public Use is conclusive from this. Any departure
from deference would preempt legislative judgment.
Note: This case makes clear that for an exercise of eminent domain to constitute the requisite
“public use,” it is not necessary that the government actually possess and use the property at any
point during the taking.
Note: Dolan and Nollan modify Hawaii Housing by implementing the rough proportionality and
tight means-end fit.
Poletown Neighborhood v. City of Detroit need for jobs, industry = public need/use even when it’s for the
benefit of a private company
Facts: Condemnation of a residential area in order to convey the land to GM for an assembly plant.
Held: Okay b/c it fulfills a public need (Jobs, industry, etc). Urban renewal as larger goal.
Legislature decided it needs it, end of story.
Dissent: Not OK b/c GM was the only one benefiting; this is profit maximizing for the company
only.
Question: Why couldn't we tell GM to buy the land from the individuals if they wanted it so badly?
B/c Gm said that they would leave the area. There would also be a problem if one person refused
to sell (hold-out).
Oakland Raiders Case, a sports team might be property and recreation might be a public use
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Facts: City sought to keep football team from moving to LA, under eminent domain power. Tried
to condemn the team as a property necessary to carry out the city's powers. The city said that the
condemnation was a valid public purpose - access to recreation
Issue: Should a city be able to condemn a sports team?
1. Is the team property?
2. Is condemning it for public use?
Held:
1. Yes. Everything is property.
2. Valid public purpose - public use is defined as a use which concerns the whole community or
promotes a general interest.
Later case held this violates the commerce clause.
PROPERTY- What Constitutes Property Rights/Interests?
 ability to possess, use, & dispose of it (U.S. v. GM)
 historically rooted expectation (Penn Central) – what she s/h expected (knew / s/h/known)
when the property became hers  factual question
more likely to consider it property if it . . .
 is more like traditional prop
 is closer to the individual
Conceptual severance
sever the interest at hand from the entirety of its property
1) Do we look at particular right or entire bundle? Right to divide, exclude are severable. Right to
profit we don’t sever. See Penn Central.
 The more personal the right, the more likely to sever, i.e. value home more than business
Factors:
1. theory –
what substantive rights (use, exclude, etc.) has the ct decided are part of the prop int?
2. space –
to what piece do these rights relate?
3. stringency –
how stringently are these rights protected? (e.g., rt to exclude is fund; rt to use prot far less)
4. time –
at what moment in time is scheme fixed? (In simple cases, it’s when the prop was purchased (note –
no mention in Loretto) )
Phillips v. Washington Legal Fndtn.
facts: before 1980 - all client trust funds held either in non-int-bearing checking accts due to fed’l
regul or in int-bearing savings accts; after 1980 – changed law to int-bearing checking accts w/
numerous limitations – interest was given to legal aid.
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ct: protect prop int, not create them; interest is clients’ property.
Note: Court doesn’t reach takings (just says it’s a prop int), but it means that there’s a takings every
time the gov’t takes the $$
TAKEN- What acts by government will constitute a taking?
Starting Point:
how has the gov’t action destroyed/impaired prop rights? How much impairment is enough?
Loretto v. Teleprompter Manhattan CATV, 1982 permanent physical occupationtaking per se
Facts: P contended that a NY law requiring apartment house owners to allow for the installation of
cable TV equipment allowed a taking of property w/o just compensation. Statute only allowed for
$1 compensation.
Issue: is any permanent physical occupation of an owner’s property which is authorized by the
gov't a taking of property which requires just compensation?
Held: (Marshall). Yes. Any occupation, no matter how slight, impacts on the owner's right to
exclusive possession of his property. Taking per se. It’s presence constituted a physical occupation
and the necessary classification as a takings of property in the 5th amendment. Thus, just
compensation must be paid ($1 not enough).
3 situations for taking –
1.
Permanent physical invasion/occupation  taking
2.
Physical invasion short of occupancy  may be a taking / temporary taking
3.
effect of gov’t. regul. so severe/restrictive that it’s a factual equiv. (e.g., airplane routes) 
may be taking
Note: it meets the public use test, but it c/ still be a taking b/c it’s a permanent physical occupation.
-Usefulness of property invasion is not part of the equation after LorettoKaiser Aetna v. United States permanent physical invasion
Facts: P created private pond and connected it to navigable water. U.S. said that once it was
connected, public must be able to use.
Held: Taking because permanent physical invasion. Such public access would deprive P of the
right to exclude others, “one of the most essential sticks in the bundle of rights that are commonly
characterized as property.”
Hadacheck v. Sebastian, 1915 May use police power to prevent harm to health and safety  public use
Facts: P was convicted of violating a municipal ordinance prohibiting the operation of a brick yard.
P's business was established before the ordinance was enacted. He asserted that his building was not
a nuisance under state statute. claimed that enforcement of the ord. amounted to a taking of
property w/o compensation, violating due process. Value went from $800,000 to $20,000
Held: not unlawful. A municipality may regulate business operations to prevent harm to the
public. Here P's brick making occasionally caused sickness and serious discomfort to those living
nearby. Not a taking because not a public use.
Rule: When exercising regulations pursuant to "public health and welfare" under police power- Law
is valid. takes it out of the takings analysis; comes after the public use factor – narrow category
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Whether a Taking is Found Depends on St. Int.  State Action / Regul.
Penn Coal Co. v. Mahon, 1922 Large diminution in value; balancing test, too far test (was a taking)
Facts: P desired to prevent the exercise of the mineral rights which D reserved in a deed
transferring certain property to P. P has his house on the land.
Held: (Holmes) The regulation so utterly impaired the right to mine coal that it was nearly the
equivalent of an appropriation or destruction of the coal. Therefore the regulation was a taking,
which could not be carried out without compensation to the coal company. “While property may
be regulated to a certain extent, if regulation goes too far it will be recognized as a taking.”
Dissent: (Brandeis) No taking occurred here, the state was merely exercising its police power to
prevent a noxious use of property. The property remains in the possession of the owners. No
balancing test- reciprocity of advantage for public welfare.
Balancing Test: extent of taking v. amount of property interest that’s left (too far test).
Government Regulation of a use of property that is not a nuisance that works too great a burden on
property owners cannot go forth w/out compensation. It is going to be a takings if the government
goes too far.
Keystone Bituminous Coal v. DeBend, 1987 essentially overruled Penn Coal (was not a taking0; conceptual
severance
Facts: similar to Penn Coal. Had a statute, but surface appear identical to the one in Pennsylvania
Coal. Association of coal miners sued, making same claim as in Penn. coal.
Held: upheld the statute b/c purpose was to protect public health and safety ( in Penn. did not
uphold b/c statute's purpose was to protect private property). Important public interest being
served here according to the court. This one had no exceptions (Coal Co or miner) as opposed to
the one in Kohler Act. Ct held that P's also failed to make a showing of diminution of value
sufficient to satisfy the test set forth in Penn Coal.
Rule: (balancing test) a statute which is designed to serve a legitimate public use/interest AND
which does not render it impossible to profitably engage in business DOES NOT effect a regul.
taking.
Note: differs from Penn Coal b/c legisl. framed the statute as a public welfare statute.
Note: Court did not conceptually sever the land. Will only do so when you divide or exclude.
Landmarks
Penn Central Transportation Co v. City of NY, 1978 Historical preservation of individual landmarks  a
taking
Facts: Penn Central contended that NY had taken its property w/o just compensation when it
declared its station a historical landmark.
Held: (Brennan):
1. economic impact of regul. on claimant, esp. how regul has interfered w/ distinct, investmentbacked expectations – is there a prop int involved?
2. character of gov’t action – is there a taking?
3. interference so great that there m/b compensation?
Landmark preservation valid state objective. It is true that landmark law has more of a burden
on some landowners than on others, but that in itself does not mean that the law effects taking. NY
law is not rendered invalid by its failure to provide just compensation whenever a landmark owner is
restricted in the exploitation of property interests, such as air rights, to a greater extent than
provided for under applicable zoning laws. The restrictions imposed here are substantially related to
the promotion of the general welfare.
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Not arbitrary or discriminatory, just because single owners may be singled out; at least, no
evidence to the contrary. Reasonable return present. Landmark law did not interfere in any way
with the present uses of the Terminal; this present use must be regarded as the P’s “primary
expectation concerning the use of the parcel.” Also, no evidence that ALL development of the air
space would be prohibited. Finally, TDRs are some compensation, which must be counted in
measuring a reasonable return.
Dissent: Rehnquist: NY has imposed a substantial cost on less than one one-tenth of one percent
of the buildings in NYC for the general benefit of all its people. It is exactly this imposition of
general costs on a few individuals at which the takings protection is directed. Average reciprocity
analysis- the Corp. bears brunt of cost of benefit.
Note: Re conceptual severance, no conceptual severance for profits
Note: there hasn’t been a successful takings claim for historical preservation since this case.
COMPENSATION- Just Compensation?
Principles underlying the policies for just compensation:
1) equitable principles of fairness- i.e. fairness to church v. fairness to taxpayer (see 565.54).
Will NEVER include specific benefits linked to use.
2) Concerns over efficient allocation of resources - just compensation helps to insure that
the property taken in eminent domain proceedings is more valuable for use by the
condemnor than by the previous owner.
General rule:
1. Use what reasonable buyer, reasonable seller would (fair market value)
2. Objective test
3. replacement value ignored
4. no cost of relocating, etc.
5. only get market value if it’s a total taking – even a temporary taking is compensated only if the
whole thing is taken temporarily (but still get mkt val)
Problems with the fair market value standard:
1) may not reflect replacement cost (difference b/w what something is worth and what is costs to
replace.
2) market value could be depressed at the time of the takings
3) Won't reflect what the expectancy or profit could be.
Almota Farmers Elevator & Warehouse v. US, 1973 improvements assessed at their value; not compensated
for option to renew lease b/c it’s a mere hope/expectation
Facts: the US sought to acquire D's property interest by condemnation. D had erected substantial
buildings and other improvements on the property, and had lease with 7½ years left to run. The
US offered compensation for the loss of the use of the buildings only over the remaining term of
the lease; D sought compensation for the full market value of the leasehold, including payments for
the expectancy interest in a lease renewal. At the end of the 7 years, D had a pretty good
expectation (assurance) that the lease would be renewed, but no right to renew.
Issue: If the government takes a leasehold, can the lessee receive the market value of the
improvements on the leasehold?
Held: Just compensation is the full monetary equivalent of the property taken. The owner is
to be put in the same position as he would have been if the takings had not occurred. How do we
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evaluate just compensation? Fair market value at the time of the taking (what a willing seller and a
willing buyer would transact for). Fair market value is determined by looking at like properties.
Court determined that D should receive the value of their improvements. However, the
expectation of a renewable lease is not compensable.
Rule: For condemnation purposes, improvements made by lessee are to be assessed at their value
in place over their usual life without regard to the term of the lease (b/c likely the D could have sold
the leasehold at a price which would have reflected the continual ability of the buyer to use the
improvements over their useful life). Full market value will be paid for compensable interest. status
quo ante.
Dissent: maintained that the majority was compensating for the leasehold indirectly. (ct's decision
was inconsistent b/c we refuse to compensate for goodwill and for value of going out of business).
Note:
What is fair market value applied to?
a) expectancy of renewal lease - no compensation 
b) value of improvements in light of lease expectancy – compensation (get enhanced
value)
c) value of remaining lease (stable rent, etc.) – compensable 
Petty Motor
Rule: You don’t get the value of the expected renewal unless there’s a contractual right to renew.
US v. 564.54 acres of land, 1979 Fair market value is determined by an objective standard only
Facts: The US initiated action to acquire the land of the Penn. Lutheran Church for use in a public
recreational project. US offered to pay D $485,400 as the fair market value of the property. D
demanded $5.8 million, which was the asserted costs of developing equivalent facilities at a new site.
(in this case, the market value was different than the replacement costs. What was the reason for the
difference? D had been exempt from costly regulations due to a grandfather clause - if they moved
sites, then they would lose exemption.
Held: P should not have to compensate for the replacement costs. Ct balanced between the public
need and D's loss. The law will not look at the special value of the land to its owner. However the court did
say that fair market value will not always be used:
(i) won't be used when it is hard to find - the
property is traded infrequently (ii) won't be used when it would result in manifest injustice to the
individual or to the public.
Rule: A landowner is entitled to the fair market value of his condemned land.
Givings
 gov’t-created value and its effect on prop holders
 where prop owner benefited from gov’t givings, that val s/n/b included in compensation given
to the landowner in a taking
U.S. v. Fuller, if gov’t gave you the value, gov’t can take it away
Facts: Fuller had grazing rights on federal land next to ranch; gov’t wants to condemn ranch.
Issue: What is the property? land / land + rts to graze / land + rts as part of land?
Held: No compensation for value of grazing rights - need not compens for val gov’t c/h removed
by revoking the permit; not like priv prop – lease not priv prop b/c gov’t has to be able to take away
what it has given
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Temporary Takings - Questions of Amount of Damages
Cases where the landowner brings an inverse condemnation suit, claiming that the gov’t has
effectively appropriated his property, and must pay for it. Where a land use regulation is so broad
that it constitutes a taking, the landowner may bring an inverse condemnation suit and receive
damages for the temporary taking (temporary because the regulation is struck down by the
court).
Rule limited to all use denied for substantial period of time.
First English Evangelical Lutheran v. County of LA, 1987 Damages must be paid for even a temporary
taking caused by an invalid land-use regulation – compensate for time taken
Facts: P owned land which was flooded. Ordinance precluded rebuilding, then ordinance held
invalid. P sued, contending that the ordinance constituted a regulatory taking (for the time that the
ordinance was in effect) w/o just compensation.
Held: (Rehnquist) A landowner whose property is taken by land use regulation may recover for the
time before the final determination that a constitutional taking has occurred. Temporary takings
which deny a landowner all use of his property are not different in kind from permanent takings for
which just compensation clause is mandated.
Dissent: Only physical takings are compensable. Regulatory takings are compensable only in the
extreme case. State remedies should be exhausted before federal relief is obtained.
H:
A owns $10,000 real property. Regulation limits its use by 70%. Court rules that there was a
taking, regulation went too far. What does A get? $10,000. Once a court rules that there was a
taking, all or nothing approach.
Tight Means-End Fit
Rough Proportionality / Logical Nexus Test
if the state is going to give you a reason why you cannot exercise a property right, the reasons m/h a
logical nexus w/ the harm they’re trying to prevent
1) has to be a nexus between state objective (end) and the regulation (means).
meansend relationship (Nollan)
2) harm caused by landowner has to be roughly proportional to what state
wants the landowner to give up (subst. rel. to legit. st. int.).
harmcondition relationship (Dolan)
Nollan v. California Coastal Commission, 1987 Tight means-end fit required for land-use regulations
Facts: Ps owned beach front property. They applied for permit to build on it. Commission finding
that such use would impede view of beach, conditioned the permit upon Ps granting a public
easement permitting movement along their property to adjacent public beaches. Ps sue claiming
deprivation of property rights w/o d/p.
Held: (1) If the govt had simply required the Ps to give the public an easement over their property,
this would clearly have been a taking, since it would be a “permanent physical occupation” (even
though no particular individual would be permitted to station himself permanently on the property);
(2) An outright refusal by the govt to grant the permit would not constitute a taking if it
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substantially advanced a legitimate state interest and did not deny an owner economically
viable use of his land; and (3) The conditions attached to the permit must be evaluated by the
same standard, so that only if those conditions substantially advanced the legitimate state
interest being pursued would the condition be valid. Requirement (3) was not satisfied because
the harms feared by the government would not be cured or even materially lessened by the means
chosen (the easement).
Significance: Nollan, when taken together with First English (holding that damages must be paid
for even a temporary taking caused by an invalid land-use regulation) shows that the Supreme Court
gives a stringent review to land-use regulations.
Dolan v. City of Tigard Rough proportionality test – when cond. are placed on permit, the restriction m/ be
substantially related to the legitimate state interest
Facts: Must leave 15% of property undeveloped. P owns hardware store permitted by existing
zoning. Wants to change use - double size of property. Local gov’t said yes, but insisted that P 1)
dedicate portion of property along creek for drainage 2) dedicate 15 foot strip for pedestrian
bikeway. She’s requesting to do something she couldn’t ordinarily do (variance) and the city is
imposing conditions on letting her do it.
Issue: Does this interfere with right to exclude?
Held: Uses 3 step analysis of Nollan. 1. Property Right - SC defines property right as right to
exclude (citing Kaiser). Pruneyard distinguished by time, place and manner. Restrictions retained in
that case. Requesting to do something she could not ordinarily do. City imposing certain condition.
City’s argument, takings clause met because compensation is the right to do something the P could
not do otherwise. 2. Sup. Ct. said govt can’t require a person to give up a Constitutional right (here
just compensation) in exchange for a discretionary benefit conferred by government where the
property sought where the property sought has little or no relationship to the benefit. [This
presupposes the taking of a Constitutional right.] Fails nexus test, proportionality test.
Comment:
What’s the problem with this analysis - not an impairment of a right if she does not
get to do something she cannot otherwise do.
Lucas v. SC Coastal Council, 1992 extends per se taking (from Loretto permanent physical invasion) to "robbery
of all beneficial use of land.” Despite regulation under Police Power, when all use is taken, a taking occurs.
Facts: After P invested $975,000 in two beachfront lots, SC enacted a statute prohibiting
construction on the barrier islands where the lots were located, entitling him, he contended to
compensation under the takings clause. P did not take issue with the validity of the Act as a lawful
exercise of SC’s police power, but contends that the Act’s complete extinguishment of his property’s
value entitled him to compensation regardless of whether the legislature had acted in furtherance of
legitimate police power objectives.
Held: The state must compensate a landowner when a regulatory action denies an owner
economically valuable use of his land, unless the prohibited use of the land constitutes a nuisance
under state C/L. State never challenged that the property became valueless.
Ct rejects idea that it’s a Hadacheck harm case. More like Penn Central - if regulate too far, taking.
“When no productive or economically beneficial use of land is permitted, it is less realistic to indulge
our usual assumption that the legislature is simply ‘adjusting the benefits and burdens of economic
life’” Negates theory of average reciprocity of advantage when landowner deprived of all
economically beneficial use. Relatively rare situations where the government has deprived a
landowner of all economically beneficial uses.
2 categories of per se taking: 1) permanent physical occupation 2) regulation that deprives 100%
economic value
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Notes:
1)
Health and safety exception is out according to this test IF 100% of use is taken.
Note: police power valid for public purpose ( takings anal.; Hawaii Housing) / health & safety
(no takings; Hadachek)
--If 100% of econ. use  taken  autom. compens., ignore if bad. If 99% taking, presumably c/
use other tests – c/ use “too far” test, state prob’ly can bring in Hadachek exception
2)
Ct says look to state law and whether it recognizes as separate interest.
3)
What about all or nothing problem? Can still raise Penn Coal too far test.
4)
In this case, legislature recitation was but a sham. Holds open the door in the case of
legislature actually showing harm prevention.
Exception: If the proscribed use was not part of the title to begin with. Look to C/L principle
of nuisance. (Problem: nuisance is not static - usually expanding) What about statutory law? Can’t
have retroactive legislation.
Summary:
If P has truly been deprived of all economically viable use of his property, a “taking”
has occurred. It is up to the SC courts to decide whether P has really been deprived of all
economically viable use. If he has been, a taking exists even though the state is trying to protect the
health and safety of residents.
Ways out of the Per Se test:
 state c/ prove some remaining value
 was restriction covered by common law nuisance rules/principals (then covered regardless of
regulation)
 if part of nuisancepart of title, but it’s not static  m/ look at it @ time of purchase
 if part of state lawnot part of title
REVIEW:
1. the fee simple absolute is the maximum set of rights - everything that we have talked about is fee
simple. The fee simple includes the entire bundle of rights freedom to use, transfer, exclude and
possession for eternity.
a. Right to exclude:
1.private persons
a) start with the absolute protection of boundary line (Pile v. Pedrick).
2.Encroacher - Public entities or private persons with a public purpose
a) Head v. Amoskeag - you can encroach; only protected property owner has
liability protection.
b) Nollan - property owner do have some rights to exclude completely.
Very rare.
3.Trespass - exclusion of individuals
a) Right to exclude trespassers generally depends on your use of the land.
b) State v. Shack (migrant case)
c) Pruneyard
b.
Right to Use
1.
Destructive use by owner
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2.
a.
Eyerman - Public policy restrictions on your right to destroy. When a
decedent’s conditions in his will are contrary to public policy, will not be enforced by
law.
Restrictions by state
a.
may have no protection (nuisance)
b.
May receive compensation
c.
May have protection of property rights
d.
If the use is considered harmful, then no protection. Hadacheck. Lucas
would seem to be an exception.
e.
If the use if taken for a public benefit, then compensation. Penn Central
C. Right to transfer
1.
By will (the Indian Case).
D. Right to Perpetual Ownership
1.
However, you can lose this through mere inaction (adverse possession).
2.
Also the state can take your land by eminent domain, and you receive liability
protection (compensation) only. The only question is how much you get, not whether they
can take it.
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V. SHARED OWNERSHIP
Ownership Divided by Time; Estates in Land and Future Interest
Has moved from CL to statute. C/L useful only in determining principle. Pre 20th century material
will not be tested on -just historical importance.
To determine what kind of estate:
1. technical lang creating the estate
2. how long the estate can endure
These are things that are less than a fee simple absolute. Fut. Int. probably will occur when there’s
anything < FSA.
1. There are two kinds of land transfer systems:
a.
Inter vivos (during life) - transfers from one living person to another.
1) m/b in writing
2) quantity of estate transferred m/b described by writing or law
b.
At/after death
1) Devise - you have a will
2) Intestate - no will and the state (always) decides who gets the land. It is decided by
statutes. the statutes usually give land and property to your blood relatives. If you don't have
any blood relatives, then the state gets it.
Both of the land transfer systems involve lawyers. In order to transfer the land, need deed, in
writing, describing land, describing way land will be held (length of time).
2.
Inheritance
If you wanted to give someone a fee simple absolute, traditionally, you had to say: "John Smith, and
his/her heirs." Most states have statutes which presume that you give a fee simple absolute unless
you otherwise specify (Example: “to A”  A has FSA or “to A for life, then to B” then B will have
FSA)
Ex. O: "to A for life, then to B forever." What estate in land does A have? A life estate (a life
interest). A can stay on the land until he dies. What does B get? A remainder interest in FSA (an
estate in land that presently exists, B has rights with regards to that land even though he cannot now
possess it. B gets the fee simple absolute (forever is close to phrasing of fee simple).
What happens if B dies first? B's heirs will take poss. after A's death.
Ex. O conveys Blackacre "to A and his heirs." This gives A fee simple absolute. What if A's only child
runs up huge bills? Can the creditors gets to the land? No. b/c have to ask what is within a fee
simple absolute - everything. Thus, there is no present interest in A's children in regards to the land.
Creditors cannot get A's land.
Vocabulary
descendants – your children
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heirs – intestate successors (determined by statute) OR persons designated to inherit by will; if
testatrix is alive, you cannot be certain who his/her heirs are.
issue – usually same as descendants; c/b determined during life of testatrix. Adoptive children depends on jurisd. b/c some don’t treat adopted children as issue autom.
heirs apparent – heirs who would take under will/law, but you’re still alive
Note: Spousal Share and Children’s Share rule - may kick in despite what will says.
Note: there’s usually a simultaneous death act if people die at same time
Present Legal Interest - A future interest (legal but not possessory)
A remainder is a future interest. Possession is not presently possessory, but it will certainly come
into effect upon the happening of a certain event. Thus, if A tried to waste land, then you could
protect it.
Present Possessory [legal] Interest - more than present legal b/c also entails actual possession
Uniform Probate Code Sections 2-101-2-103, 2-105 (1982 text) (SM 163)
Has been adopted in several states, but not all. What state would legally resolve your will?
Wherever you have a domicile.
An executor is listed in your will or appointed by the court to administer your will. Usually surviving
spouse is the executor (an heir can be an executor).
Section 2-101. [Intestate Estate.]
Any part of the estate of a decedent not effectively disposed of by his will passes to his heirs as
prescribed in the following sections of this Code.
Section 2-102. [Share of the Spouse.]
The intestate share of the surviving spouse is:
(1)
if there is no surviving issue or parent of the decedent, the entire intestate estate;
(2)
if there is no surviving issue but the decedent is survived by a parent or parents, the first
[$50,000], plus one-half of the balance of the intestate estate;
(3)
if there are surviving issue all of whom are issue of the surviving spouse also, the first
[$50,000], plus one-half of the balance of the intestate estate;
(4)
if there are surviving issue one or more of whom are not issue of the surviving spouse,
one-half of the intestate estate.
Section 2-103. [Shares of Heirs Other Than Surviving Spouse.]
The part of the intestate estate not passing to the surviving spouse under Section 2-102, or
the entire intestate estate if there is no surviving spouse, passes as follows:
(1)
to the issue of the decedent; if they are all of the same degree of kinship to the decedent
they take equally, but if of unequal degree, then those of more remote degree take by
representation;
(2)
if no surviving issue, to his parent or parents equally [problems of assets ascending];
(3)
if no surviving issue or parent, to the issue of the parents or either of them by
representation;
(4)
if no surviving issue, parent or issue of a parent, but the decedent is survived by one or
more grandparents or issue of grandparents, half of the estate passes to the paternal
grandparents if both survive, or to the surviving paternal grandparent, or to the issue of the paternal
grandparents if both are deceased, the issue taking equally if they are all of the same degree of
kinship to the decedent, but if of unequal degree those of more remote degree take by
representation; and the other half passes to the maternal relatives in the same manner; but if there be
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no surviving grandparent or issue of grandparent on either the paternal or the maternal side, the
entire estate passes to the relatives on the other side in the same manner as the half.
Section 2-105. [No Taker.]
If no taker under the provisions of this Article, the intestate estate passes to the [state].
A. FSA (Fee Simple Absolute)
Fee – potentially indefinite duration
Simple – no limits on inheritability
Absolute – cannot be divested from holder & won’t end upon happening of an event
trying to give people who are mortal the ability to own things forever. Problem is trying to balance
the fact that the land will be around after us. thus we have land transfer systems (or else all the
dead people would own all the land).
-rise of free transferability away from alienability.
Note- Statute of Frauds requirements
1.
Description of Land
2.
Statement to Who Given.
3.
quantum of time.
“to A”
White v. Brown, 1977 Law will try to find FSA in will if ambiguous (no clear intent to contrary)
Facts: Lide died leaving a will which provided, "I wish Everlyn White to have my home to live in
and not to be sold." Lide's niece, D, claimed the will created a life estate and she obtained a
remainder interest. White sued to quiet title, contending the will created a fee estate.
Issue: Can D require living not to sell property?
Held: Unless the words and context of a will clearly evidence an intention to convey only a life
estate, it will be interpreted as conveying a fee estate. Can't give a person a fee simple absolute and
then say to that person that she cannot sell it. Law values simplification.
Dissent: the express language of the will indicated an insurmountable constraint on alienation,
indicating a clear intent to create less than a fee estate. Specific restriction or reasonable restriction
generally upheld - “Church may have it ‘til they stop using it for a place of worship.”
Note: Courts have strong presumption wherever vague for a Fee Simple Absolute.
Web v. Web
“To A and her heirs, for her life.” At the point of saying “To A and her heirs,” becomes FSA. Rest
of language nulled.
B. Fee Tail
This is an attempt to keep the property in a familial line... "to A and the heirs of his body." Tries to
restrict what the child could do with the land, if the child had no issue. Most states have abolished;
most states interp. fee tails as FSA.
One variance of life estate- 0 gives A life estate. A gives to B for life; B's ownership measured by A
or B's life, whichever is shorter. If A gives to B for life, lasts for the maximum time possible (A’s
life).
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C. Life Estate
“to A for life”
Baker v. Weedon, 1972
Facts: Weedon's will gave his property to his wife, Anna (P), for life, remainder to his
grandchildren (D). Value of the land climbed due to the highway near the property. This is a
situation where the life tenant want value over the property now (due to financial distress) and the
other parties want to wait because of the increasing value. The ct was asked to permit sale of certain
real property.
Held: A ct may order the sale of property which is held subject to future interest, but only if the
sale is necessary for the best interests of both the life tenant and the remainderman (balancing test).
P would get little as compared to Ds, since she only has life estate. P petitioned for sale of part of
the land (remaindermen didn’t want it sold).
The court here remanded, holding she could sell as much as she needed but not the entire thing.
-invoke law of Waste.
-example of preservation of rights of future interests
Ex:
A: "To Woody for life, then to Mia and her heirs" (Mia here has a vested remainder). If
Woody decides he wants to build a skyscraper on the property. Can Mia prevent/enjoin him from
doing so? Yes! (present legal interest)
Disabling restraint: withholds from the grantee the power of transferring his interest. Otherwise,
transfer is void.
Forfeiture restraint: provides that if the grantee attempts to transfer his interest, it is forfeited to
another person. Like a FSD.
Promissory restraint: provides that the grantee promises not to transfer his interest. O can sue A
and get damages (plus sometimes INJ)
1. The Doctrine of Waste:
life tenant not allowed to waste
Whenever ownership of property is divided between a present and future interest, there is the
possibility that the acts of the present holder will be to the detriment of the future interest. The
doctrine of waste provides that if the present interest’s acts
a)
substantially reduce the values of the future interest; and
b)
are unreasonable under the circumstances,
the holder of the future interest has a cause of action.
Types of Waste:
(a)
active (voluntary) waste – affirmative - life tenant taking too much - Where an
affirmative act causes unreasonable, permanent damage to the holder of the future interest.
Enforceable in court – e.g., chopping down trees
(b)
Permissive (involuntary) waste – omission - neglect  deterioration - Results not
from an affirmative act, but from omission by the present holder to care for the property
adequately. Life tenant has obligation to keep up the property. Enforceable in court
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(c)
Ameliorative waste – life tenant’s action adding to mkt val but others don’t like it remaindermen don't (subjectively) like what you are doing to the property, even though adds
value to property. Probably not enforceable in court - e.g., sculpture in front yard
Acts constituting waste:
Open Mines Doctrine: If the property was used for mining prior to the commencement of
the life estate or term of years, the tenant may continue this use. Will presume that the
tenant will continue to take it out at the same rate, not more rapidly.
Court will split up value payment stream – if old mine, life tenant gets profits, if new mine,
life tenant doesn’t get much b/c don’t want to incentivize to over-mine; First time payment
and royalty payments Life tenant gets interest on payments, B will get the Corpus.
2. Defeasible Estates in Land:
These are estates which may last forever (like FSA) or end upon the happening of a particular event
(FSD) or may end upon the happening of an event (FSCS).
Conditions (part of a defeasible fee) v. Covenants (situation where the person getting the land
promises to do or refrain from doing something to get to keep the land.) Remedies different.
Defeasible fee, land changes hands. Covenant, money damages only.
Unless expressly FSD, courts will usually favor creation of FSCS. (See note to Marenholz).
Why does the distinction between FSD and FSCS matter?
1) Whether the estate ends automatically or if the grantor/heirs must actually re-enter or
bring suit.
2) Where FSD involved, the holders of the possibility of reverter have an unlimited time to
sue or a long Statute of Limitations time. For FSCS, the SoL starts to run upon the
occurrence of the stated event and is usually for a relatively short period (sometimes 1 year!)
3) Rule of Perp may affet FSCS
a. Fee Simple Determinable (FSD):
A fee simple estate, which can do all the things like a normal FSA. But is limited so as to end
automatically upon the happening of an event (but may last forever). It is created by the language
connoting that the transferor is conveying a fee simple until an event happens. It is a fee simple
determinable if the grant has these words "so long as"; "while used for"; "during use as".
Reverter
It is always accompanied by a future interest b/c there has to be someone to take if the interest fails.
The interest retained by 0 is called: possibility of reverter. People use this a lot when they give to
charities. You need to be specific about what will trigger the reverter in order to minimize
confusion. Note: RAP d/n apply to possibility of reverter.
Ex:
O gives X a fee simple determinable in 1982. The condition is that X do something.
Condition fails in 1990. X ignores this, and sells the property to Y in 1991. In 1992, O wants the
property. O prevails, b/c he regained title at the moment the condition failed.
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Ex:
If O has a deed and gives a building to Duke so long as it is used for a residence for B-ball
players. This is a fee simple determinable.
b. Fee Simple Subject to Condition Subsequent (FSSCS):
This does not end automatically when the stated event occurred-if stated condition fails, the person
w/ the future interest m/ act to retake it. It ends when the claimer takes action to reclaim it. It may
be cut short or divested at the grantor/transferor's election when a stated condition happens. An
example of this would be: "but if X then there is a right to enter and retake."
 “but if” is the language that creates a FSSCS.
Right of Re-entry
The interest retained by 0: the right of entry. You can just prohibit a specific use. When there’s no
re-entry clause, many courts treat as only covenant. Thus, only money damages available.
b.
Fee Simple Subject to Executory Limitation:
The same as FSSCS but the future interest isn’t held in the grantor but in a 3d party.
Executory Interest
Grantor doesn’t have any future interest. If the future interest is in a 3d party, it’s an executory
interest. (see below). The interest held by 3d party is either a springing executory interest or a
shifting executory interest. Executory interests are subject to RAP.
Ex: O: “To A and his heirs, but if the property is used for other than residential purposes, then to B
and his heirs.” A holds a fee simple subject to an executory limitation in favor of B. If either A, or
one who receives the property from him, uses the property for commercial purposes, then title
automatically passes to B or (if B is dead) his heirs.
Ex:
A building to Duke, but if it ceases to be used as a residence for B-ball players, then to UNCmagic words are BUT IF - creates in UNC an executory interest. Many states limit this after time
just becomes FSA.
Differences between covenants and conditions:
covenants – promises made as part of grant; breach  damages
conditions – heart of grant; breach  lose title
indicators – covenant usually explicit; conditions usually part of habendum clause “as long as . . “
Mahrenholtz v. County Board of School Trustees, 1981, Finding for a FSD instead of FSSCS – if you
breach a cond that’s part of the grant, you lose title and it reverts to the original grantor as in FSD.
Facts: P sued to quiet title to land deeded to school district (D) "for school purposes, otherwise to
revert to Grantor's herein" when D ceased using the property for classes.
Issue: What kind of defeasible fee?
1. FSA or defeasible fee? defeasible fee
2. FSD or FSSCS?
Held: First question, is the condition broken, for if not the school has title. Assume yes. Only
where the grantor creates a possibility of reverter (Fee Simple Determinable) will he or his
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successors become possessory owners immediately upon the breach of the deed restriction. There
was such a possibility in this case. Court held FSD hinging on word "only." P wins.
if condition not broken  school bd has title
There were 2 possibilities in this case – if condition was broken -1.
FSSCS  right of re-entry. Harry never attempted to re-enter  no present possessory
interest in land; he had only a future interest. By statute, that cannot be conveyed intra vivos 
conveyance to M is void but to school OK b/c it simplifies title. School would win if it was a
FSSCS.
2.
FSD w/ possibility of reverter- as soon as condition broken, by law title goes to heir and can
convey to Mahrenholtz, which would supersede.
Note: Courts dislike forfeitures, particularly automatic one such as those involved in fees simple
determinable. Therefore, when there is some doubt about whether a conveyance establishes a FSD
or FSCS, the court will usually interpret it as the FSCS.
Note: generally, cannot convey future interests to 3d parties
Defeasible fees as absolute restraint on alienation Generally void. How do you have rule prohibiting such restriction, but you can have conditions
resulting in loss of title?
Mountain Lodge No 82 v. Toscano, 1968 Absolute restraint on alienation; ct will uphold even strict restraining
conditions (even those limiting alienability – abil. to get rid of sthing)
Facts: P acquired property by a gift deed from Toscano. Included in the deed was a clause which
purportedly restricted the use and ownership of the property to the Lodge. Upon violation of the
restriction the property was reverted to Toscano's estate. P sought to have clause declared void as a
restraint against alienation. P argues FSCS. D argues restricting language amounts to absolute
restraint on alienation (remedy usually being strike rest of language but title stays with grantee as
FSA).
Held: A limitation on the use of property, although it might serve to impede transfer, will not be
void as a restraint against alienation. While D tries to say exclusive use = prohibition on alienation,
court says no - can have language, you must use this land exclusively. Court sticks to FSCS - it is still
valid.
Condition that prohibits selling is void – c/n prohibit selling absolutely under penalty of forfeiture
(though c/h/ certain prohibitions on selling)  take that clause out (restraint on alienation = void)
Dissent: Exclusive use/ prohibition on alienation the same thing; majority ignores reality.
Falls City
Held: Reverter provision as restriction on alienation. It materially affect marketability by
restricting who can use it.
Ink v. City of Canton, 1963
Facts: Property here was given by Ink for use as public park, with clause to revert back if put to
inconsistent use. Used as a park but then city using power of eminent domain took it over to build
highway. Decedents of Ink (P) sought a declaratory ruling as to their rights with respect to the
eminent domain award.
Held: FSD exists here. O has possibility of reverter. Where the grantee (as here) did not pay for
his determinable fee, it would be unjust to allow him to retain the eminent domain award outright.
Ps entitled to portion of award. Compensation paid in ED for property held in determinable fee for
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a specific purpose belongs to the grantee in determinable fee for so long as the money is used for
the purpose stated in the grant.
- to avoid harshness, no return of reverter- split the fee to avoid forfeiture.
Rule: When land taken by eminent domain, the grantee gets money unless gift, in which case
grantor gets value of restriction.
3. Future Interests:
occur when transfer < what grantor had – if first transferee didn’t get everything, a fut int remains
Whenever initial transfer is less than what the grantor had, there will be a future interest in some
body. Exs: Life estates, defeasible estates. Future interests are present, legal interests meaning that
you might be able to sell them, transfer them or give them away. Under statute of frauds must be
signed to be valid. Can create those interests by deeds, contracts, will, etc.
6 future interests recognized:
A. Interests retained by the transferor/grantor
when grantor doesn’t grant entire estate or creates future interest for herself
1. Reversion
2. Possibility of reverter
3. Right of entry (also known as termination)
B. Interests created in a transferee
1. Vested remainder
2. Contingent remainder
3. Executory interest
a.
Future Interest retained by Transferor (O)
1. Reversion:
Where O transfers away a lesser estate than O had or creates future interest for herself. The
reversion is the interest that remains with O.
O limits A’s grant to < FSA
A’s interest c/b fee tail, life estate, or term of years  what’s left goes to O


Two tests to see if reversion occurred:
A. If O had a FSA  ask if O conveyed an estate with both characteristics: vested
and fee simple. If either characteristic fails, then O has a reversion. If both
succeed, O has nothing.
Two tests to determine vestment:
(a) identity of the recipient of the estate is known at the time of the
initial conveyance. AND
(b) there is no condition precedent (no condition which must be
met).
B. If O had < FSA (i.e. life estate)  ask whether the estate which O conveyed was
of the same size. If same size, no reversion.
No specific reservation needed.
Will not necessarily become possessory. If an event occurs in such a way that it becomes
certain that the reversion never becomes possessory, it is said to have been divested.
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
Reversion is transferable intra vivos and at death.
Examples:
O says to A for life, then to B for a term of 99 years. Does O have a reversion? Yes b/c he did not
give away everything he had. It will go to O. Although what he gave was vested, it was not a fee
simple.
Ex. O has FSA. O: "to A for life, then to the first person born and his heirs. Here we have a fee
simple, but it is not vested, thus there is a reversion.
Ex. O: "to A for life, then to B and her heirs if B attains age 21.” Does O have a reversion? Yes
b/c it is not vested (there is a condition precedent).
Ex. O: “to A for life, then to B and her heirs but if B does not attain the age of 21, then to C and his
heirs.” B is 15. In this case, there is no reversion b/c it definitely goes to either B or C. If it was to
C's heirs, then there is a reversion if C is alive.
Ex. O: "to A for life, then to B if he reaches age 21, then to C’s heirs.” assuming that B is less than
21, it is an indeterminate conveyance. Then go to C - is this part vested? No, assuming that C is
alive, we don't know the identity of his heirs. Therefore, there is a reversion to O. If B was 22 at
time, then it would be vested and there would be no reversion.
2. Possibility of Reverter –
when O gives an estate of the same size as what O had, but it’s a determinable estate
(automatic end if condition fails, i.e. FSD). If the determinable estate ends, possession reverts
to the grantor. Since it is not certain that this will ever occur, the word “possibility” is used.
A possibility of reverter is inheritable under the intestacy statute, and devisable by will. Must
be of same size of estate as what O has. I.e., FS -> FS, life estate -> life estate
the future interest retained in FSD
Ex:
O owns FSA. He conveys “to A and his heirs, so long as no liquor is sold on the premises,
and if liquor is sold thereon, title to revert to O and his heirs.” After the transfer, O has a possibility
of reverter; he will automatically regain possession if A or anyone holding under him sells liquor.
3. Right of Re-Entry If the holder of an interest in land conveys all or part of his interest and attaches a condition
subsequent to the transferee’s interest, the transferor is said to have a right of re-entry. If
the specified bad conduct occurs, O can choose to terminate A’s grant but does not have to.
the future interest retained in FSSCS
Ex: O owns FSA. He conveys “to A and his heirs, on condition that liquor never be sold on the
premises; if liquor is sold thereon, O or his heirs may re-enter the premises.”
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b.
Future Interests created in the Transferee/Grantee
1. Remainder –
a future interest in the transferee that can become a present possessory interest upon the
expiration of all prior interests. In addition, it cannot divest any interest except (or other
than) one in the transferor (i.e. can only take from O) and it must, upon the expiration of all
prior interests, immediately divest the transferor (there can’t be any gaps; gaps  springing
executory interest).
 Distinguishes from executory interest because prior interest naturally expires (w/ executory
interest, the grantee takes b/c the prior grant fails).
 c/b transferred by will, inter vivos, or intestacy if O dies during the tenant’s life (unless
O m/ expressly survive the life tenant)
Requirements:
a.
A grantor must convey a present possessory estate to one transferee
b.
He must create a non-possessory estate (the remainder) in another transferee, by the
same instrument
c.
The second, non-possessory, estate (the remainder) must be capable of becoming
possessory only on the natural expiration (as opposed to the cutting short) of the
prior estate. “Natural expiration” is most likely death.
d.
Can follow anything except a FSA.
Ex:
O conveys “to A for life, remainder to B and his heirs.” B has a remainder because: (1) a
present interest has been created; (2) a future interest has been created in a different person by the
same instrument; and (3) the second interest will become possessory only after the natural expiration
of the first one (i.e., after A’s death).
Two types of remainders:
a. vested remainder:
the identity of the person is known and there is no condition precedent (look to
SAME clause)
b. contingent remainder:
fails at least one of the two criteria for vestment (don’t know the person or it has a
condition precedent). Refers to the contingency of the taking, not the keeping.
Note: RAP applies to contingent, not vested remainders.
Note: Not taxable until possessory.
c. Vested remainder subject to divestment –
look to each clause
Divest - estate vested in one person then taken away from that person
vested currently but subject to divestment in a later clause (by another grantee or by
the grantor)
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e.g., to A for life then after 1 year passes to B and his heirs – the 1-year gap it goes
back to O after which it goes to B. So upon A’s death, O’s reversionary interest is
vested subject to divestment.
Ex:
O: "to A for life, then to B and her heirs if B lives to age 21.” B is 17. Does it meet the
requirements for a remainder? Yes. What does B have? A contingent remainder b/c it has a
condition precedent. What does 0 have? Reversion b/c there is a possibility that B won't reach age
21 (O gave away less than he had).
Ex:
O: "to A for life, then to B's heirs." If B were dead, what do B's heirs have? It would be
vested as the identity of B's heirs would be known.
Ex:
O: "to A for life, then to B and her heirs.” What does B have? Definitely a remainder and it
is vested b/c the identity of B is known and there is no condition precedent. O has nothing b/c he
gave away a fee simple.
Ex:
O: “to A for life, then after 1 year to B and her heirs.” O would have it for a year. What
does B have? It cannot be a remainder b/c it foes not have an immediate expiration. It is a
springing executory interest.
Ex:
O: "to A for life, then to B's first born son and his heirs if that son survives A." Question: if
B's first born son exists at the time of the grant, is his interest vested or contingent. Contingent b/c
he has to survive A.
Ex:
O: "to A for life, then after one year passes to B and his heirs." Question: what does B have?
Is this a remainder? No b/c there is a gap. This is a springing executory interest.
Ex:
O: "to A for life, then to B and her heirs if B survives A, and if B does not survive A, then to
C and her heirs". B has contingent remainder. C also has contingent remainder.
Ex:
O: “to A for life, then to B and her heirs, but if B does not survive A, then to C and his
heirs.” B has vested remainder subject to divestment. C has shifting executory interest.
2. Executory Interest –
future interest in transferee that must divest in order to become possessory
 always follows fee simple (not FSA – fee simple incl. life estate)
 freely devisable, transferable, and inheritable
 only a future interest as long as the condition precedent has a possibility of being met. If
the cond. precedent cannot be met, the future interest is extinguished.
a. shifting executory interest –
divest or cut short some interest in another transferee.
limits fee simple in another grantee.
divest = estate vested in one person then taken away from that person
Ex:
O “to A and his heirs, but if A inherits Blackacre, then to B and his heirs.” B has a shifting
executory interest. Note that A has a fee simple subject to an executory limitation, not a FSSCS. Further
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note that what would be a FSD if it were followed by a reversion in the grantor is called a fee simple
subject to an executory limitation.
Ex: O: "to A and his heirs, but if A dies w/o issue, then to C and his heirs" If C acquires, then he
had a vested interest from A's heirs, this is a shifting executory interest (C is divesting A's interest).
What is the lurking problem? Let's say that A died w/o issue. You wanted to argue that A had a fee
simple absolute. How? Could argue O is saying that "and his heirs" made a FSA and that the rest
of the stuff is void b/c it restricts the fee simple.
b. springing executory interest –
a future interest in a transferee that divests the transferor in the future.
limits fee simple in grantor.
Ex:
O has FSA. He wishes to convey title to his prospective son-in-law A, but only from the
time that A actually marries O’s daughter B, yet he also wishes to convince A right now that A will
definitely get the land if he goes through with the marriage. O therefore bargains and sells the
property “to A and his heirs from and after the date of A’s marriage to B.” The bargain and sale
raises a use in A, becoming a fee simple in A to commence upon the marriage date.
Ex. O: “To A for life, then after a year passes to B and his heirs” B has a springing executory
interest b/c the “after a year passes” creates a one-year gap during which time it reverts to O (so it
cannot be a remainder).
Ex. O: To A for life then to B’s heirs – if B’s alive, O might have a reversion (goes to O after A
dies and until B dies); B’s heirs could have a springing executory interest. If B’s dead, it’d vest in B’s
heirs.
TRUSTS:
A way to control the dispossession of property. Legal and beneficial aspects of ownership are split.
If you want to put property in a trust for A, what does A have? (i) A gets the proceeds from the trust
(ii) the person who manages the trust is called the trustee. Their primary duty is to invest the money
wisely. the trustee has a duty for a reasonable rate of return (objective standard). The trustee can be
held liable for mismanagement of funds. Held to high standards of law - those for a fiduciary
relationship. Examples: pensions and profit-sharing plans.
Broadway National Bank v. Adams
Facts: P - D bill in equity to get payment of debt from trust created for Ds benefit by brother.
Creditor wanted to get to the trust.
Issue: Can trusts be used to pay off trustee’s debts?
Held: No. While in English CL would void bro's restriction on alienability- no "payment to my
brothers creditors", Court rejects in favor of American Rule which upholds founder of trusts
intention.
Rule- Creditor's have no rights to rely on property in securing debts such as this.
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Rules Furthering Marketability by Destroying Contingent Future Interest (Intent
Frustrating Rules):
The law does not like contingent interests b/c they affect alienability (ability to give your land to
whomever you damn well please).
The Rule in Shelly's Case (good in 2 states):
If you have one document that creates a life estate in A and a remainder in A's heirs, the law will
make this a FSA in A. Life estate and remainder merge. No doubt that this is contrary to the wishes
of O. The Rule serves no useful purpose today.
Doctrine of Worthier Title:
Where you have an inter vivos conveyance of land by a grantor to a person, but a future interest in
the grantor's own heirs (either by way of remainder or executory interest)  that future interest will
be treated as a reversion to the grantor.
Ex. 0: "to A for life, then to O's heirs." Under this rule, it eliminates the attempt by 0 to have it pass
to his heirs. it reverts back to 0 instead. In most states, the Rule has been transformed into one
of construction (that is, the Doctrine applies only where the grantor’s language and the surrounding
circumstances indicate that he intended to keep a reversion. Merely establishes that a presumption
that a reversion rather than a remainder is really intended.)
Doctrine of Destructibility (abolished everywhere):
A remainder in land is destroyed if it does not vest at or before the termination of the preceding
estate. There is no toleration for gaps in this doctrine. Only operates factually, later, at time of the
event. Has been abolished in most states.
Ex: O: A for life, then to B and her heirs when B reaches 21. If at A’s death B is under the age of
21, B’s remainder is destroyed. Seisin returns to O.
The Rule against Perpetuities:
found in every state. Purpose is to limit contingent remainders (don’t know the person or there is
a condition precedent). It is evaluated at the time the grant is made; all contingent remainders must go
through this rule. "No interest, other than one in the grantor, is good unless it must vest, if at all, not
later than 21 years after some life in being (~100 years) at the time of the creation of the interest."
Means that the grantor is allowed by law to tie up this land for the period of a life in being plus 21
years.
1st inquiry- is the clause in question a contingent remainder (don’t know the person or there is a
condition precedent)? If yes, then . . .
2nd inquiry- will it vest w/in measuring life in being (actual identifiable person) plus 21 years?
Fertile Octogenerian. There is a conclusive presumption that any person, regardless of age
or physical condition, is capable of having children.
Unborn Widows- Similarly, if a conveyance is made to the “widow” of X, the C/L view is
that the widow is not necessarily the person who is now married to X. Furthermore, the
widow may be someone who, as of the moment of the conveyance or bequest, is not yet
even a life-in-being.
Life in Being. Any party living at time transfer is made, who has causal effect on whether
the future interest will come into being (usually someone expressly named in grant).
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Notes/TIPS:
 Future interest retained by transferor does not have to meet RAP.
 If the grant (/future interest) is to a named person (e.g., B), it’s almost always OK b/c you can
use the named person (e.g., B) as the measuring life and the contingency is likely to be met.
 if the grant is to a class/description (e.g., B’s children), then likely to have problem, b/c cannot
use those people as measuring lives; m/b closed class (i.e., vested for whole class – e.g., B is
dead, then we know all of who B’s children are). If not a closed class, it fails RAP.
Applies to:
 contingent remainders
 vested remainders subject to open (e.g., can have more kids)
 executory interests
Does Not Apply to:
 vested remainder if the class is closed
 future interests in the grantor.
 rights of entry
 reversion
 possibility of reverter
Purposes of RAP:
1)
increases alienability of property
2)
socially desirable for property to be controlled by the living and not the dead.
3)
Testator cannot tie up his land for more than 100 years.
Analysis - How to Approach RAP Cases
1) look for the contingent or unvested interest. It is contingent if either
a) the identity is not known or
b) a condition precedent exists.
2) if contingent, is this interest certain to vest or not vest within a life in being plus 21 years? Are
we certain that the contingency will be resolved (will vest or not) within a life-in-being+21 years?
If we won’t know whether it’ll vest or not  violates RAP. If we are certain as to whether it’ll
vest or not  passes RAP.
Life in Being: when deciding who the measuring life is, always pick the most generous (usually
the one in the grant) for each contingent interest. Assume at the start that the named parties are still
alive; remember that you can pick “children” as the measuring life if you know they’re alive –
doesn’t have to be “B” or “A”. That person who allows you to vest or not within 21 years is called
the validating life.
Ex:
O: "to A for life, then to B if B attains the age of 30." At the time of the grant B is 2 years
old. Question: what is the contingent interest. B's half. What is the life in being we can use here?
A or B? We will know by the time B dies if he reaches age 30. B is a life in being at the time it is
created, thus the grant is good.
O: "to A for life, then to A's children for their life, then to B if B is then alive, and if B is not alive
then to B's heirs." Will we be able to know the answer to this question by the end of A's life, plus 21
years? Yes, it passes the RAP. If B is used as the measuring life, it is okay.
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O: "to A for life then to the biological children of A for life, then to the issue of the biological
children of A." Is this a contingent grant? Yes b/c we do not know who the biological children of
A are. Does it pass RAP? Yes for the biological children of A; No for the issue of the biological
children.
O: $1,000 in trust for the first born child of A if admitted to the bar." assume there are no children
yet of A at the time of the grant. Is this contingent? yes, b/c we don't know the identity of unborn.
Does it violate the rule against P? Yes b/c when A dies you may not know whether the child will
pass the bar.
Assume that A has one child at the time of the grant, does it violate the RAP? No b/c you
can know.
O: "[to A for life, then to A's widow if any for life] then to A's issue then living." Is the first part
contingent? Yes. does it violate the rule against P? No, when A dies we will know whether there is a
widow. The second part, Contingent? Yes. does it violate P? Yes. can't measure it by A's widow's
life.
For the measuring life, you can pick any person who is in being at the time of the conveyance.
For example: you can't pick A's widow b/c A might not have a widow when he dies. (i) it has to be
an identifiable person at the time of the conveyance. (ii) also, the measuring life cannot be O.
Ex:
O: "to A for life, then to biological children of A, then to issue of those biological children."
2nd part violated because may not know who it vests with.
Class Gift
If a gift is made to all members of a class, the entire gift fails unless it can be said that each member
of the class must have his interest vest or fails within the lives in being plus 21 year period. The
problem usually arises where the class obtains new members following a testator’s death. If
potentially invalid, then it is an invalid gift to ALL members of the class.
Ex: “To A for life, then to A’s surviving children who reach the age of 25.” Would fail to all kids.
O = teacher who holds $1,000 in trust "for all members of my present class who are later admitted
to the bar." Is this contingent? Yes b/c we do not know who is going to be admitted. What is the
contingent interest? For all members admitted to the bar (identity unknown). Will we know if it
vests or does not vest at the time of their death plus 21 years? Yes, thus it passes RAP.
Wait and See Doctrine
Wait and see statutes - wait 21 years after death of testator; if grants are vested in that time period,
then it’s legally enforceable; otherwise, void.
Uniform Statutory Rule Against Perpetuities
Note that the rule against perpetuities has been changed in some places by statute. Wait and see
period limited to 90 years
Cy Pres
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can void a grant that would do something other than grantor’s intent – to further the grantor’s
intent.
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VI.
CONCURRENT OWNERSHIP
Two or more people have present possessory interests to property.
Ex. 0: "to A and B and their heirs." here a concurrent ownership is given to A and B.
Note: There is a bias against concurrent ownership in the law b/c concurrent ownership is very
cumbersome matter, makes it hard to sell and develop land etc.
3 basic types:
Tenants in Common –
separate but undivided interest in the property. Can be conveyed by deed or will. No rights to
survivorship, thus when A dies, A’s interest  A's heirs, not B.
Note: DEFAULT - All states presume a co-tenancy is tenancy in common unless there is a clear
intent to establish a joint tenancy.
Joint Tenancy –
people who each own an undivided interest in the whole property. ROS - survivorship rights. B
dies, rights are extinguished (so A gets full rights). Under the old rule needed four unities to create
this:
1. unity of time –
interests of the two joint tenants must be acquired at the same moment.
2. unity of title –
all parties must acquire interest by the same instrument (or by the same adverse possession).
3. unity of interest –
everyone has to have an equal undivided share (some states hold that this is not always
required) and must have held it for the same duration.
4. unity of possession –
each must have a right to exclusive possession of whole.
If one unity fails, joint tenancy fails  tenants in common.
Can't leave your joint tenancy interest to someone in a will.
Advantage: Avoids probate (and probate tax), because nothing descends. If B dies, A still has same
rights.
Tenancy by the Entirety –
(married couples) it requires the 4 unities of joint tenancy. there is a right of survivorship. Neither
party has power to act alone; cannot convey. Only way out of this in many states is divorce or
judicial partition requested by both parties.
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Severance of Joint Tenancy:
What if A and B don’t get along? Disputes can be resolved by JUDICIAL PARTITION. Courts
will either
l. Separate parcel
1. Put property up for sale.
Strawman – To change one tenant and maintain joint tenancy –
A-B  A-C when you want to maintain joint tenancy ? If B transfers deed directly to C  TIC (AC). Must temporarily give property to D (strawman) who gives to A, C at the same time.
To separate property:
1. get severance  TIC
2. request partition of property
-or1. request partition as jt. ten.
2-part Test
When trying to evaluate potential acts of severance by joint tenant, ask these two questions:
1. public - is the act of the joint tenant public enough
2. clear intention - is it clear enough that the person no longer wants joint ownership?
3. recording - Generally, deeds don’t have to be recorded to be effective. If a person conveys
effective deed to a third party, that destroys the joint tenancy b/c it destroys 1+ unities,
regardless of whether it’s recorded.
Riddle v. Harmon, 1980 Sneaky Wife Case - H/W JT -> H/W TIC unilaterally by W – don’t have to use a
strawman to get out of a jt. tenancy (as required by CL)
Facts: P sought to enforce a joint tenancy right of survivorship against D, the executrix of his wife's
estate, after the wife had deeded her 1/2 joint tenancy interest in the property to herself in order to
sever and terminate P's right to succeed to the whole. (Usually need a strawman)
Held: There is little virtue in adhering to cumbersome feudal law requirements... a joint tenancy
may be terminated by the conveyance by one joint tenant of his interest in the joint tenancy to
himself, since severance by conveyance operates to terminate. A "straw man" is not necessary.
Eliminated feoffer-feooffee straw man requirement to adhere to English Rule.
Note: CA allows, under statute, A -> A+B JT. Most juris require A+S -> A+B. Ct here said that
if you can create directly, you should be able to destroy directly.
Harms v. Sprague, 1984 Granting of mortgage: Lien theory of mortgage. Opposite of some other juris (title theory
of mortgage)
Facts: P and Harms owned property in JT. Harms executed a mortgage favoring Simmonds, who
later assigned his interest to D. After Harms died, P contended that the mortgage had died with
Harms and brought an action for quiet title.
Issue: Does mortgage sever JT?
Held: A mortgage on a joint tenant's interest does not survive the mortgagor. One requirement of
joint tenancy is a unity of title. Since a mortgage does not sever a JT (Note: some cases go the other way
on this), the entire estate of the decedent joint tenant passes to the survivor. This effects a
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nullification of any liens thereon. Thus D's interest was extinguished upon Harms' death.
Potentially all 4 unities would have been severed it there had been foreclosure. Since no foreclosure,
no unities severed. Mortgage creates only a security interest.
Note: Some courts go the other way on the mortgage issue. Mortgage is a transfer of title.
If a mortgage doesn't bind a person, should a lease? If it is a short term lease then the courts will
enforce it. If long term, more responsibility, can go check deed.
Note: joint bank accts w/ elderly parents do not create a JT (b/c that would avoid probate tax)
What if A+B JT, B -> to “X for life”? Does this destroy JT through possession unity?
Okay as long as not given larger than you have and longer than your life.
H+W in JT. Decide to get a divorce. Before they sign agreement that the property will be sold and
equally divided, W dies. Does H get the property through right of survivorship or did the divorce
destroy the joint tenancy? The 4 unities are still intact.
Lesson: If you want to severe a joint tenancy do it explicitly.
Remedies of Co-tenants:
1) partition
a) in kind
b) by sale
2) ouster
3) accounting
a) for rents & profits
4) taxes, other expenses
5) improvements
Partition:
Concurrent owners might decide for any number of reasons to terminate a co-tenancy.
1.
Can be done by voluntary arrangement.
2.
If not, equitable action in partition.
NA to tenants by entirety.
Two types:
a)
partition in kind - courts have preference for.
b)
partition by sale
Delfino v. Vealencis, 1980 Partition in kind instead of by sale. Property only sold during dispute if partition in
kind is impossible.
Facts: P owned an undivided 99/144 interest in land, D owned 45/144 interest. The property was
a JT. P wanted to develop residential housing on the tract and sought a partition sale. D wanted
partition in kind b/c she used her portion for the operation of a rubbish business. The trial court
held the partition in kind was unavailable and a partition sale was necessary.
Held: Presumption in favor of partition in kind. Partition sale should be ordered only when 2
conditions are satisfied. 1) the physical attributes of the land are such that partition in kind is
impracticable or inequitable, and 2) the interests of the owners would be better promoted by a
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partition by sale. Ps fail to meet either requirement. In this case, limited competing interests and
the relative ease of division makes partition in kind workable.
Note: The court seems anxious to preserve personal attachments to the land. Many cts would go
with the sale because it yields the most $$.
Ouster
An ouster occurs when displaced tenant tries to occupy and occupying tenant refuses. Asking him
to pay rent or vacate is not enough.
Spiller v. Mackereth, 1976 A co-tenant will be liable for rent only if other co-tenant is ousted; Co-tenant can
possess and use the property without being liable to other co-tenant for rent UNLESS there’s ouster. Ouster requires
physical bar of entry to property.
Facts: D and P were tenants in common of a warehouse. D began using the entire warehouse as a
storage facility when their tenant vacated. P demanded that D either vacate half of the premises or
pay rent. D ignored the demand. P sued for rent.
Held: As a general rule, all co-tenants have right to use and possess the whole and a co-tenant
cannot be liable to other co-tenants for rent. The only exception to this occurs when there is an
"ouster." For there to be an ouster, a co-tenant must physically bar the other co-tenant from entry.
Merely ignoring an order to partially vacate does not constitute ouster. Here, there is no evidence
that D physically barred P from entry, so there was no ouster.
Accounting
Schwartzbaugh v. Sampson, 1936 Lease does not violate JT. Can only ask for an accounting.
Facts: P and D were H/W. They had acquired title to certain real property as JT. Subsequently,
her husband and other D executed two leases for parcels of this property. At all times, however, P
objected to the lease, refused to participate in it, and made these facts well known to both her
husband and other D. At no time has she received any rent from this lease. Sued to cancel the lease,
claiming it was a total nullity without her participation as a joint tenant.
Issue: Does lease sever JT (by impacting unity of possession)?
Held: No. The act of one joint tenant without consent of his co-tenant cannot bind or
prejudicially affect the rights of that co-tenant; but a lease of all of the joint property by one joint
tenant is not nullity but rather is valid to the extent of his interest in the joint property. Each joint
tenant has an equal right of possession of the fee involved. As such, a joint tenant is free to convey
his interest in the property by lease or other transfer free of any challenge by his co-tenant. He may
owe an accounting to his co-tenant for any rents received from a third party from such lease, and
such co-tenant may bring an action in ejectment to be allowed to re-enter and jointly occupy the fee.
Here, there is no evidence that either Sampson or her husband ever attempted to interfere with P's
enjoyment of her interest.
Note: Can get either ouster OR half of reasonable rent.
Improvements in Partition Actions
A tenant in common cannot compel co-tenants to contribute to the costs of improvements without
their prior consent. [If this is true, why should they benefit when property is sold?]
Marital Interest and Jt. Ten.
Marriage creates JT possession of some property. Have to keep it separate for it to remain separate
(even in community property state). Everything earned during marriage is split 50/50
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-
prop. inherited / rec’d as gift during marriage doesn’t become marital prop if kept
separate
Can you have ½ claim on a degree?
- Human K approach; she gets payoff from asset
- Status quo ante
- Working ???
Degree as Marriage Property:
In re Marriage of Graham degree not marriage property
business school
Reimbursement for Contributions to Attaining the Degree:
In re Marriage of Hortsman, only for contributions made in order to get degree
Supporting Spouse gets Eq. Portion of Degree:
O’Brien v. O’Brien
Facts: H returned to school to get BA, MD. She worked to put him through. She claimed degree
was worth $472,000 and demands 50%.
Issue: Is this asset marital property?
Held: H claimed personal attainment of knowledge. License is asset. W gets 40% of value.
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VII. THE LEASEHOLD ESTATE
Landlord and Tenant - in general
1/3 of all Americans are living with a residential lease. in addition, leases are extremely common in
commercial business areas. the law shifted from pro landlord to pro tenant in last 20 years. now
there are massive tenant protection laws. - very contentious area. Is Landlord/Tenant governed by
1. contract or 2. property.
 is court enforcing the K?
 if not, what theory does the court use?
There are 4 types of leases:
Term of years:
estates that lasts for a specific period. there is no period of renewal. no notice required for either side
b/c no notice needed (everyone knows when it is ending). Death of LL or T has no effect on
duration of term.
Periodic Tenancy:
one that goes for on a number of periods. ex. rent is for month to month. have to give notice
(usually the same number of days that is in the period). may continue for potentially unlimited # of
periods. Death of LL or T has no effect here either.
Tenancy at will:
no stated term at all. The notice period is usually the same as the intervals b/w periods. Mutual
right to terminate.
What if the lease says that only one party has a right to terminate at any time? At C/L, there was
reciprocity - if one can terminate, then the other has equal rights. Garner contradicts this C/L.
Tenancy at Sufferance:
Arises when a tenant remains in possession (holdover) after termination of the tenancy.
HOLDOVER- to qualify must
1.
Interfere with landlords use of property and
2.
be voluntary.
Rule: A landlord who accepts rent from holding over tenant is consenting to a form of renewal he in effect agrees to extension of lease month to month.
Garner v. Gerrish, 1984 - Minority rule that although T has unilateral termination right, not tenancy at will.
Looks to IF it will end, not exact day.
Facts: Don granted lease of a house to D. The lease contained clause granting D the ability to
terminate the lease at the date of his choice. No such right was reserved for the lessor. Upon Don's
death, P attempted to evict D, claiming that the will was indefinite as to time, therefore a tenancy at
will was created.
Held: A lease may provide for the termination at the will of the tenant only (minority rule). Here,
the language of the will unequivocally reserves the right of termination to D, so he may not be
evicted. If determinable life tenancy, LL c/n terminate; if T at W, LL can terminate. Here, it’s a
determinable life tenancy, so LL cannot terminate; only T c/ terminate.
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Note: Court says not indeterminable - question not when it will end but if it will end. But by this
definition, all T at W are determinable; would take this category out of the picture. Most courts
would require knowing when it would end.
Example: L leases to T "as long as landlord desires." Here lease gives landlord the right to terminate
no mention of tenant. Under majority rule, a T at W.
Under Garner, T at W because it applies only to T
Example: landlord leases to tenant for the end of the war. Is this indeterminative or determinative.
If no definite end that can reasonably be calculated it is at will.
Crechale and Polles Inc v. Smith After holdover, once LL accepted first check, will be held to have consented to
renewal of lease as a Periodic Tenancy (month-to-month); once LL chooses remedy, can’t rescind it.
Facts: Lease originally for 5 years. L (P) said he did not want month to month. T becomes
holdover. L says T was liable for back rent as a holdover tenant.
Held: When a tenant continues in possession after the termination of his lease, the landlord has the
election either to evict him, treat him as a trespasser, or to hold him as a tenant. However, once a
landlord elects to treat a tenant as a trespasser and refuses to extend the lease on a month-by-month
basis, but later accepts monthly checks for rent due, he has in effect agreed to an extension of the
lease by a month-by-month basis.
The landlord in Crechale made two fatal errors (i) accepted the check (ii) told him that he was a
trespasser.
Note: When you hold over, the landlord can get more than you were paying before.
Some juris say holdover one day, lease for whole new term.
Some juris say holdover one day, lease for only one new period.
Some juris say holdover one day, T at W created.
Some juris say holdover one day, pay double rent.
What is a lease?
A lease is a K that grant exclusive possession of land for a wide range of purposes (usually for a
substantial duration). Statute of Frauds governs 1+ year leases.
Difference b/w a lease and a fee simple? Fee simple is ultimate possession.
Form leases - most people sign these. they take the transaction cost burden off the landlords.
They are enforceable unless they are explicitly illegal. The tenant has little bargaining power. Form
leases mitigated by competitive pressure.
Lease is combination of both a conveyance and contract1.
Property rights
2.
Contractual Promises.
Courts rely generally on contractual principles for problems of leases. For terms less than year oral
allowed.
License –
limited privilege to use another’s land; no exclusive possession and generally revocable at any time
(no notice provision); not covered by LL-Ten statutes (e.g., parking garage)
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Distinction b/w a lease and a license - with a lease, you get the particular total, exclusive possession.
With a license, there is just limited privilege to use another's land and no exclusive possession and
generally revocable at any time (no notice provision). Not covered by landlord/tenant statutes. Ex:
parking garage.
Federal Fair Housing Act:
3-604 is the operative section of the Act.
-Can’t discriminate on basis of sex, religion, race, handicapped, familial status, or national
origin.
- Affects sale or rental, terms of sale or rental, ads relating to sale or rental
What are the exceptions?
3-603(b)(1)
-Single family houses owned or rented by owner
- can only own no more than 3 such houses
- if don’t live there, only one home can be sold /24 months
- can’t use real estate broker
- can’t use rental agency
- can’t put ad in that acknowledges the discrimination
3-603(b)(2)
- ‘Mrs. Murphy’ rental exception (argued that individual who owns house should
have more selection of tenants than other rental units)
- rooms or units if no more than 4 units and owner lives there
Ads advertising to rent to females only violate the law.
Can you discriminate against people on welfare under this act? Yes.
FFHA- in addition to state law and remedies- no pre-emption.
What does Handicapped mean?
exception includes people under controlled substance and mentally disabled covered.
Alcohol is NOT a controlled substance.
Gay, lesbian- no protection
AIDS- disease may be handicaps.
Soules, bonafide business reason for discrim on basis of family status  OK
facts-elderly tenants downstairs; prospective renter had child & got hostile response
re: discriminating on basis of family status
ct – for prima facie case, P m/ show:
 part of prot class
 otherwise qualified
 rejected
 at time of rejection, unit was available
Then burden  D to show bonafide business reason
Then burden  P to show reason = pretext
Here, P had prima facie case, D gave a reason, P never rebutted,  D wins.
Bronk, balance benefit to disabled v. cost to LL
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Issue: whether Pierre really is a hearing dog; what is reas. accommodation for handicapped?
Test: 2 factors – balancing test – benefit to disabled (to help normal functions); cost to landlord
Court: j instr s/h/b clearer and remanded
Civil Rights Act of 1866 §1982 - prohibits racial discrimination in sale and rental of houses. There
are no exemptions under §1982, but it only applies to race. Further you can get an injunction but no
damages.
42 USC- ext. to Scandinavians, Jews, Hispanics.
Delivery of Possession
Under the American Rule (Hannan), T has to bring action for unlawful detainer against the former
tenant, rather than LL.
Problem with the American rule: Only LL usually knows the situation before tenant tries to
claim. Before date, only LL can legally try to evict holdover. The reason is, you dont’t want
to make LL liable for 3rd party
Hannan v. Dusch, 1930 LL only required to put tenants in legal possession
Facts: P, the lessee, alleged that D, the lessor, failed to deliver possession of rented property by
allowing a former tenant to remain in possession (holdover).
Issue: Is a landlord obligated only to place a tenant in legal possession of rental real property?
Held: Yes. Under the American rule, a landlord does not impliedly covenant against the wrongful
act of others, and is not responsible for the tortious acts of 3rd parties unless he expressly Ks so.
Where a new tenant fails to obtain possession of rented premises solely b/c a former tenant
wrongfully holds over, his remedy is against the former tenant and not against the landlord. Once
tenant has legal possession, LL has no right to enter
Note: Do you have to pay rent to the landlord while someone else is in there? No, b/c you are not
possessing the place.
Assignments and Subleases:
How do we know whether something is a sublease or an assignment?
1.
Look at the intention of the parties
2.
Has T transferred his entire interest.
Ex:
Have a lease. O leases to T1 for three years at $300 a month. 1 year later Tl enters
into a contract and subleases to T2 for a year. Then both T1 and T2 stop paying rent. Can
the LL sue T2 on privity of estate? This is a sublease because it is partially given, not full.
(Note that a few states change these CL rules by statute.)
Privity - Why do we care whether something is an assignment or a sublease?
The availability of the privity of estate theory.
- If there is a sublease there would be no privity of estate b/w LL and T2. LL cannot sue
T2 unless LL was part of the transfer transaction.
- If assignment LL can sue T2 directly under privity estate theory. Either Tl or T2 will be
liable under privity of estate, not both.
Note: that privity of estate and breach of K are independent of each other.
Exception: If T1 is insolvent, then the landlord can generally sue T2.
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Sublease:
Privity of Estate
Privity of Contract
LL  T1
LL  T2
Assignment:
Privity of Estate
Privity of Contract
LL  T2
LL  T1
What if the LL tries to terminate b/c of breach of a condition? Does T2 have a right to object?
- Yes, if it is an assignment b/c he is in the same shoes as T1.
- If it is a sublease T2 is at the mercy of T1, no right to object.
Ernst v. Conditt, 1964 Since assignment, despite wording as sub-lease, full assignment with liability for rent 
LL can go after T2 for rent under privity of estate.
Facts: After P leased property to Rogers, who assigned his lease to D, P sought damages from D
for past due rent and removal of improvements (go-cart track).
Issue: Does an assignment arise when a lessee transfers his entire interest under a lease?
Held: Yes. Under C/L, if an instrument purports to transfer the lessee's interest for the entire
remainder of the lease term, an assignment has occurred. However, if the instrument purports to
transfer the lessee's interest for any length of time less than the remainder of the lease term, a
sublease has been established. Under modern rule intention of the parties governs. Here, under
either rule the agreement b/w Rogers and D is an assignment rather than a sublease. All parties
here intended an assignment rather than a sublease.
2-part Test for Whether it’s an Assignment or Sublease:
1. T1 transfer entire interest in property?
a. no  sublease & T1 is liable
b. yes  assignment & T2 is liable
2. Intention of Parties? Intend privity of estate between LL & T2?
Note: When Rogers takes possession,
1) may have privity of estate; Rogers liable to P for rent
2) independent theory privity of K based on K
LL’s Ability to Restrict Ability to Assign/Sublease
Kendall v. Ernest, 1985 Minority Rule - when you need consent to assign/sublet, LL must have commercially
reasonable objection to prevent
Facts: D arbitrarily withheld permission from P, its tenant, to sublet its leasehold.
Issue: Absent contractual language to the contrary, may a lessor arbitrarily withhold consent to an
assignment?
Held: No. The basic social policy in this area is that interests in property, including those of a
leasehold nature, should be freely alienable. Restrictions on alienability are to be strictly construed
against the lessor. The lessor's C/L right to look to no one but the lessee for rent has been
curtailed. The argument that the lessee could have bargained for free subletting rights does not
stand up to scrunity. What the parties contemplated is not always clear, and doubts should be
resolved in favor of alienability. Thee must be a reasonable commerical objection.
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Note: When determining reasonable commercial interest, LL has no right to guard larger interest
(say, he has multiple properties and 1 tenant moves from one to the other).
Majority view: What reasons might there be for supporting the reason that the landlord can reject
for any purpose?
1) The landlord has the right to the property, why shouldn't he have a say in the 2nd tenant who
gets the property.
2) If market change, landlord should be able to capture additional rent.
Even under majority view, LL may be barred if waiver or estoppel. This is true even if expressly
accounted for in K. Think back to Ks.
Duties of the Tenant
What duties does the tenant have and what can the LL do when the tenant does not live up to his
duties.
Doctrine of Waste
Voluntary waste - a substantial detrimental change to premises.
Ex: Doing work not up to building code. If value of prop. goes down, it’s probably waste.
Involuntary waste - tenants should (must) act to preserve the premises or will be liable for damages.
- liable for ordinary maintenance, normal wear and tear.
C/L rule-still liable for rent even if second day the house you are renting burns down. Still have
possession of remains. If however renting only a unit in a building and your unit is destroyed by fire
then you are free.
C/L rule - can't force the landlord to rebuild.
Modern - On whom do we put the burden of an act of God? The LL b/c only the landlord can
insure the building, only the LL has the insurance on the premises.
Tenant in Violation of Lease – Tenant who defaults
Types of Eviction:
a)
judicial process
b)
self-help
- modern courts split as to whether you can use
Berg v. Wiley, 1978 Minority rule - self-help no longer available unless abandoned or surrendered – m/ use judicial
processes
Facts: D lessor of commercial property to P for the purpose of operating a restaurant, locked P out
of the premises when P delayed making certain changes to meet health code requirements.
Held: The evidence supports jury's finding that P did not abandoned the premises, and the lockout
was not justified on the ground of abandonment and surrender. The modern trend is the law is to
bar self-help to dispossess a breaching tenant. A landlord may not remove a breaching or defaulting
tenant's possessions or bar the tenant's access to the leasehold w/o resorting to judicial remedies.
CL rule - you can have a lockout if it is a peaceable one and landlord is entitled to the place. Court
found that this was not peaceable because of the possibility of violence. The fact that you had 2
policemen there shows possibility for violence.
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Rule: Can no longer evict in this jurisdiction via self-help; must use the courts. Here the court
simply wanted to get rid of the CL rule.
Majority Rule – if you do it when the tenant’s not around, it’s peaceable (c/ use self-help)
Tenant here asserted various theories of recovery:
1. Wrongful eviction - can get loss profits damages from deprivation of property
2. Contract – reas fores from breach
3. Tort (intentional infliction of emotional distress)
Majority – Property Theory rules
Minority Rule – Contract or Tort may apply
Tenant Abandonment
Majority Rule- no duty to lease as property ; theory that like sublease can reasonably refuse or even
arbitrarily refuse since no duty to enter into another risky relationship due to default.
Minority Rule- based on Antitrust - duty to mitigate damages; but even under MINORITY , if
have # of abandoned units DO NOT have to fill that apartment first.
Sommer v. Kridel, 1977 Minority Rule - Only required to mitigate residential leases - LL has duty to show
reasonable diligence
Facts: D, the lessee, offers to forfeit SD & 1st month’s rent, LL doesn’t reply, so D vacated the
apartment which he leased from P, before the end of the lease term and P waits 1 yr 4 mos to lease
again.
Issue: Does a landlord have a duty to mitigate damages when he seeks to recover rents due from a
defaulting tenant?
Held: Yes. The landlord's duty to mitigate consists of making reasonable efforts to re-let the
apartment. The burden of proof is on the landlord to show that he used reasonable diligence in
attempting to re-let. Reasonable diligence includes: offering the apartment to prospective tenants,
advertising in the local papers. Here despite availability of ready, willing and able tenant, P allow the
apartment to remain vacant and increase damage amounts. P could have reasonably avoided those
damages. Ct applies K theory for residential leases.
Majority Rule – mitigation is unnecessary, b/c prop theory is lease divests LL of control  no
responsibility if tenant abandons
SECURITY DEPOSITS:
Is it legal to apply your security deposit to your last month's rent? Illegal in most
jurisdictions.
Do you have a right to the interest gain on your security deposit? No, in most jurisdictions.
Under CL tennat took the premises "as is." Landlord had no duty to do anything here.
Landlord Duties
Covenant of quiet enjoyment & Constructive Eviction
Covenant of Quiet Enjoyment
implied in lease
if substantially interferes with enjoyment of space
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Times court will find:
1. If a duty is established in the lease ex. "landlord will provide heat." Then a breach of that duty
would be enough.
2. If the landlord creates a nuisance which interferes with the T’s possession or use of the premises
3. By a third person’s assertion of a title superior to that of the LL used to evict T (paramount title)
Constructive Eviction
If T’s use and enjoyment of property has been substantially impaired (e.g., excessive noise, terrible
odors) the eviction is constructive. T is NOT entitled to terminate lease, or to stop paying rent,
unless he abandons the premises. If he stays on the premises, his only remedy is to sue for
damages. Furthermore, the abandonment must occur within a reasonable time following the
alleged constructive eviction.
Note: Tenant MUST VACATE
Remedies
- no liability for rent
- but no consequential damages
Reste Realty Corp v. Cooper - Constructive eviction
Facts: D rented apartment to be used for commercial purposes. When it rained, water from
driveway totally disrupted D's business. D complained and got it initially "repaired." After
repairman manager dies, the flooding problem became more severe, and D's complaints were
ignored. After notifying the lessor of her intention to vacate, D left the premises. P brought suit for
back rent. D claimed defense of constructive eviction.
Held: Ordinarily a covenant of quiet enjoyment is implied in a lease. Where there is such a
covenant, whether express or implied, and it is breached substantially by the LL, the doctrine of
constructive eviction is available as a remedy to the tenant.
TEST: An act or omission by the landlord which renders the premises substantially unsuitable for
the purpose for which they are leases OR which substantially interferes with the beneficial
enjoyment of the premises, is a breach of the covenant of quiet enjoyment and constitutes a
constructive eviction of the tenant.
Here there was sufficient interference with use and enjoyment to justify D's departure, and to relieve
her of obligation to pay rent.
Note: What other theories could the tenant have used in the Reste case? -Tort negligence.
Partial Eviction
Partial eviction may occur if, for instance, the LL ousted the T from a geographical portion of the
premises.
Remedies:
- Tenant relieved of all rent obligations, even though he remains in possession of the rest of
the premises. “The LL cannot apportion his own wrong.”
Theory of Illegal lease
If the housing code says that this is a violation and dwelling should not be leased, landlord knows
about it. Some courts say that constructive knowledge is enough. Illegal lease as defense to tenant
for nonpayment. Allowed to stay and pay fair market value.
 uninhavitable dwellings not be leased
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 LL knew / s/h/k  viol
 existed at time of agmt/possess
 subst viol
 lease is void
covers only viol at time of possess
ten c/ remain in possession
Theory of Implied Warranty of Habitability:
Not all of the states have this implied theory of warranty. Often single family residences and
commercial leases are excluded. Commercial leases we can understand b/c of more equality of
bargaining power. Single family b/c individual is more likely leasing or renting instead of being a
multi-lessor.
T cannot waive this warranty of habitability even if the T was told of these defects beforehand.
Such a shifting will only be allowed if it is set forth in a separate writing signed by the parties and
supported by adequate consideration.
However, have to notify the LL of claim of defect and give him time to remedy the defect. Tenant
may withhold rent w/out having to abandon the premises.
Has to be substantial defect.
Hilder v. St. Peter, 1984, Burden on LL; applies to both latent and manifest (patent) defects.
Facts: P leased an apartment from D which had every problem known to man in it, including
broken toilets, water leaks, falling plaster, broken locks etc. P paid the rent, but after 14 months of
renting the apartment, she brought an action seeking recovery of the rental monies.
Held: An implied warranty of habitability exists in residential leases. The old view was that the
lessee took the property as she found it. This view is not proper in a modern society.
Rule: Court here said that the burden is on the landlord. Modern landlords are in a better position
to pay. No longer caveat lessee. Applies to both latent and manifest (patent). defects in
essential facilities & common areas. Cannot waive implicitly or explicitly.
Note: Puntive Damages here were allowed
Standard and breach of the warranty:
Jurisdictions fall into 4 categories
1.
the standards are those of the housing code, and apparently any failure to comply with the
code is a breach.
2.
the standards are those of the housing code, but substantial compliance is sufficient so long
as habitability is unaffected.
3. Housing code provision and their violations are compelling but not conclusive. Must be
"uninhabitable in the eyes of a reasonable person, with violation of a code provision being a relevant
factor.
4.
the standard and its breach are independent of the housing code. for human habitation."
Tenant must 1. notify LL, 2. if LL fails to correct, a. c/ stay in possession . . .
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Damages:
- consequential damages – diff betw warr val and val of existing cond
- punitive damages
- ten liable only for reas rental value during occupancy OR T gets diff betw unit’s warranted value
and actual value (majority rule)
- withhold payment of future rent
- discomfort and annoyance
Case I
latent defect
Case II
patent defect
Case III
Latent & patent defect
Market value
if no breach
(warr. val.)
$250
$250
$250
Contract
rent
$250
$200
$120
Actual Mkt
Value as is
$200
$200
$100
1.
2.
200
250-50=pay 200
200
200-50=pay 150
100
120-(100-250)=get 30
If Breach of Implied Warranty of Habitability . . .
1. T pays reas. rental value of unit
2. Majority Rule
(a) T pays rent, then
(b) T gets difference betw. unit’s warranted value and actual value.
Retaliatory Eviction
There are statutes that try to prevent retaliation where landlord tries to get rid of tenant after
tenant made complaints. This gives the tenant some power.
LL’s Tort Liability
Becker v. IRM Strict liability for latent defects existing at time of leasing
Facts: In this case the shower door was made of untempered glass. the P was a guest in the
apartment, and he fell through it and cut his arm. P sued the landlord in strict liability and
negligence. the theory of strict liability is that the defect of the product caused the injury. (Would
want to sue under strict liability b/c you don't have to show fault).
Held: The CL rule about defects in the premises - landlord only responsible for condition of
premises under the following circumstances: fraud, concealment of the defect, and some kind of
representation in the lease. There are three requirements which make the landlord strictly liable: he
os engaged in the business of leasing dwellings; he is going to be liable for latent defects; defect has
to be present at the moment of leasing. Landlord is not responsible for patent defects, such as
rickety stairs.
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Rule: A landlord engaged in the business of leasing dwellings is strictly liable in tort for injuries
resulting from a latent defect in the premises when the defect existed at the time the premises were
let to the tenant (absence of a continuing business relationship between the builder and the landlord,
does not preclude application of strict liability in tort against the landlord).
Peterson Explicitly overrules Becker- tenant c/n expect LL to be liable unless aware / s/h/b aware and c/h/b
exposed by reasonable inspection  no strict liability (negligence std.)
Theories Summary
1. Constructive Eviction- Landlord provides substantially unsuitable environment or hinders
beneficial enjoyment. NOTE - TENANT MUST VACATE.
2. Illegal Lease- Housing code violations AT TIME of Lease; illegal and unenforceable - tenant
only liable for market value such as it is; but can be evicted.
3. Implied Warranty of Habitability- housing code defects and/or independent defects reasonable nature attributed to landlord.
 Consequential Damages are Recoverable.
4. Retaliatory Eviction (always statutory)- If tenant evicted for exercising legal rights, cannot
evict.
 -forbids retaliatory action by rebuttable presumption of retaliation if occurs after a good faith
complaint.
Problems of Affordable Housing
4 different policies for housing
1. Rent Control
 Criticism of rent control: creates housing shortages, takes away landlord's incentives to build
new buildings.
2. Building Codes
3. Subsidized Housing
4. Slum Clearance.
Note: no rent control south or midwest.
Rent Controls sometimes attaches to owner, thus if sold, released; why you get chains of subleases
in NYC.
Rent Control
Chicago Bd of Realtors v. City of Chicago, 1987 Posner Economics - IWH bad for poor people
Facts: Ps, a group of property owners challenged the constitutionality of Chicago's ordinance,
contending that it violated various clauses of the constitution. (vagueness doctrine, equal protection,
the taking clause etc.)
Held: The ordinance was sufficiently reasonable in light of its stated purpose (to promote public
safety, health, and welfare). Regulation valid use of police power.
Separate Opinion (Posner): felt that majority opinion didn't go far enough. Suspicious of real
purpose of the ordinance. Forbidding landlords to charge interests on late payments of rent could
hardly be thought to be calculated to improve health, safety etc. Feels like the poor will be hurt by
this b/c landlords are likely to charge higher rents. Tinkering with market system not
Unconstitutional but ineffective.
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VIII. PUCHASES/SALES OF LAND
Usually form K biased in favor of seller
2 Basic Systems of Recording
 Abstract System-all states-every time transaction recorded in Register of Deeds, ex. unpaid liens
 Torrens System-some states-judicial proceeding brought by purchaser to register property. If
don’t respond, lose claim
 Recording Acts
Statute of FraudsLand Transactions usually covered by State Statute.
Requirements 1. Memo of sale- signed by party to be bound describing
2. 1and and
3. price
4. Some states also require material terms
Exceptions 1. Part performance
2. Estoppel/reliance.
Requirements for a Marketable (Merchantable) Title
Marketable Title = not subject to litigation
1. Fee Simple Absolute
2. Free From Encumbrances
 What is an encumbrance?
Vocabulary – encumbrance = legal interest that can make title unmarketable
e.g., existence of private restriction
violation of public restriction
violation of private restriction
 Even if encumbrance, is there any escape clause in K that affects the result? “subject to
all encumbrances of record”
3. Buyer entitled to Possession.
Theory of Equitable Conversion
Buyer shoulders risk of loss between signing of contract and transfer- can be altered by
contract.
Lochmeyer v. Bower, 1951 What is marketable title? No time to cure required at closing.
Facts: P contracted to buy land from D. The Contract provided that D would convey, by
warranty deed good merchantable title, free and clear of encumbrances, but subject to all
recorded restrictions and easements applying to the property. The K also stated that D
would be allowed sufficient time to correct defects. Upon inspection, P learned that the
property was in violation of both a city zoning ord. and a restrictive covenant previously
imposed on the lot. He then sued for recission of the K and return of his money.
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Held: In order for a title to be merchantable, it must be free from reasonable doubt and
must not expose the prospective buyer to the hazard of potential litigation. A party cannot
convey good merchantable title if violations of covenants or zoning ordinances exist on the
property at the time it is to be sold. The mere existence of zoning restrictions is not an
encumbrance; mere existence of private covenants are encumbrances. Thus, the case turns
on the violation, not the existence of the encumbrance. Violation can be either of the
zoning or the covenant. Must be a material violation. Here, title  marketable  breaches
warranty.
Remedies if not marketable title
1. Money Damages
2. Rescission
3. Specific Performance.
Conklin v. Davi, 1978 Adverse possession and marketable title – title m/b marketable & insurable; marketable
 flawless. Marketable Title  Record Title
Facts: P contracted to sell a parcel of property to D. Title to the property was to be both
marketable and insurable. D, upon learning that part of the property to be conveyed was obtained
by adverse possession, refused to go thorough with the sale. D contended that the property
obtained through adverse possession could not be conveyed by marketable title. P sued for specific
performance.
Held: A warranty of marketable title does not require that the title conveyed be flawless.
(Marketable title & record title are different.) Title obtained by adverse possession may still be
marketable. However, the seller has the burden of establishing that such a title exists. Once
the burden is met the ct must decide whether a likelihood exists that adverse claimants
would challenge the title to the property and whether they would succeed if such challenge
is made. If the ct finds the likelihood of a successful challenge to be minimal, then the title to the
property may be deemed marketable.
Note: This is why you ask for valid title of record, not just marketable title
Duty to Disclose Defects
Can’t use “as is” in real estate contracts
Stambovsky v. Ackley, 1991 Haunted house rule here narrow in that it has to be created by seller – duty to
disclose reputation that was created by the seller
Facts: P discovered that the house he had recently contracted to buy was widely reputed to be
haunted. P promptly sought rescission of the K.
Held: where a condition which has been created by the seller materially impairs the value of the K
and is peculiarly within the knowledge of the seller or unlikely to be discovered by a prudent
purchaser exercising due care with respect to the subject transaction, nondisclosure constitutes a
basis for recession as a matter of equity. Since P was from the city and would not have known of
the folklore of this village, equity relief is needed b/c D had informed the public that her property
was haunted, she owned no less a duty to her K vendee. Application of the remedy of recession,
within the bounds of the narrow exception to the doctrine of caveat emptor, is entirely appropriate
to relieve P from the consequences of the most unnatural bargain. Rescission allowed upon
failure to disclose material defects peculiarly w/in knowledge of seller.
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Note - In the CL, Caveat Emptor and No duty to disclose (in the absence of a fiduciary relationship
or active concealment.
Didn’t sue agent b/c would only get liability remedy.
Johnson v. Davis, 1985 No misfeasance/nonfeasance distinction for duty to disclose. Seller has duty to disclose
material facts.
Facts: Ds failed to disclose to Ps certain roof defects prior to conveyance of Ds residence. Ps had
inquired about the defects but were told that they were fixed. Not long after conveyance a storm
occurred and the roof leaked extensively.
Held: Where the seller of a home knows of facts affecting the value of a home that are not readily
observable, the seller is under a duty to disclose. The seller is in a far better position to be aware of
relevant facts than the buyer, and should not exploit the buyer's poor position. For this reason, the
ct think it fair for caveat emptor to be abandoned in land sale Ks, and the seller be placed under a
duty to disclose. Misfeasance v. Nonfeasance distinction not in tune with the times.
Strawn v. Canuso Applies to professional sellers when problem rooted in land (but social conditions don’t need to be
disclosed) – whether actual misrepresentation or silence
Facts: 150 families buy houses in housing development; very near hazardous waste site, charged
that developers knew and didn’t tell.
Held: Only applies to professional sellers - developers - and their brokers. Off site conditions
liability applies only to those rooted in land, not social conditions (such as a prison). Applies to
affirmative active misrep. Or to silence.
Merger Rule
eliminate any action on prior agmts by merging contract & deed
c/b done in deed (which theoretically is read more closely) unless there are exceptions, including the
above.
The Deed
Generally contain . . .
 premises/grant – name of grantor, words of grant (hereby grant), grantee’s name, stmt of
consideration paid
 habendum clause and tenendum – describes estate granted to X (usu FSA)
 warranty clause – lists promises – owns land, marketable title, no restrictions
 signed – at least by seller
 witnessed/acknowledged – in some states – by live people/notary, respectively
 description of land conveyed
 delivery – deed is not valid until delivered (public act evincing intent to be immed bound)
What if the deed’s description of land is contested?
Rule of priority in conflicting description of land:
1. natural monuments
2. artificial monuments
3. references to adjacent boundaries
4. directions
5. distances
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6. areas
7. place names
Legal description usually governs over gov’t survey
Types of Deeds
General Warranty Deed
warrants fee simple, gttees good title to buyer & free of encumberances; used in usual transactions
1)
covenant of seisin - grantor warrants he owns estate
2)
covenant of right to convey
3)
covenant against encumberances (liens, easements, etc)
4)
covenant of general warranty
5)
covenant of quiet enjoyment
6)
covenant of further assurances
- grantor will execute any other deeds to effect title
Special Warranty Deed
Grantor covenants only regarding own acts, not those of other
Quitclaim
used to clear-up title
grantee gives no warranty whatsoever (not even fee simple)
only grants what he does have
‘Releases a claim unto grantee...’
Title Insurance
Title insurance does not run with the land
amt. = purchase price
probl. = appreciation of prop betw purch and probl with title
Recording Systems
when 2 parties are given title to same land, Recording System matters
x -> A
execution in proper form
delivery
A can enforce against X
A * B,C, D
C/L title depends upon time of conveyance – 1st grantee wins. Under recording
system of today, C/L rule no longer applies
Race statutes –
whoever records first (doesn’t matter if 2nd person had notice/knowl.)
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Notice statutes
Later grantee prevails over a prior unrecorded conveyance if later grantee has no notice of
prior conveyance. If later grantee had notice, prior conveyance wins. If later grantee did not
have notice, later grantee wins regardless of whether she records.
O -> A (fails to record)
O -> B (knows of prior conveyance, records)
A wins
OA (fails to record)
OB (no notice; fails to record)
B wins
Race/Notice Statutes
A subsequent purchaser is protected against a prior unrecorded conveyance only if
1) she is w/out knowl/notice of prior conveyance and
2) she records before a prior instrument is recorded
OA (d/n record)
OB (no knowl; d/n record)
A records
OC (no knowl; d/n record)
A v. B – A wins b/c B d/n record
A v. C – A wins b/c not prior unrec convey
B v. C – B wins b/c C failed to record - if
you c/n take adv of statute, default
position is prior conveyance
Who is protected under recording statutes? Only purchasers, not gift or devise.
Why does lawyer run from signing to courthouse?
To make sure no liens are recorded
Because of the recording system
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IX. LAND USE CONTROLS
A. NEIGHBOR'S COMMON LAW RIGHTS - NUISANCE LAW
1. Nuisance
Nuisance was the oldest land use device.
Nuisances include junk yards; hazardous waste; uncovered trash.
Two questions to ask! (i) Is there a nuisance? (ii) If there is, what is the remedy?
Types of Nuisances
1. Lawful nuisance- nuisance per accidens- lawful activity that becomes a nuisance only in relation to
neighbors.
2. Actionable Nuisance- remedy at law - a previous nuisance that has stopped
3. Abatable Nuisance- remedy in equity - stoppable by injunction.
Morgan v. High Penn Oil Co, 1953, unreas. invasion of P’s landuse; can continue polluting but m/ pay
damages to P. (Calabresi #3 – Liability Prot. for P)
Facts: Ps sought to enjoin D (who operated refinery 1000 feet from P's property) from emitting gas
and odors from its refinery (Ps resided and owned a restaurant and trailer park on property; gases
and orders from refinery invaded property and made people sick), and to recover damages for past
impairment of the use and enjoyment of their property due to refinery emissions. Note that Ps were
there for 5 yrs before D started operating.
Held: Private nuisances may be nuisances per se, (i.e. at all times and under any circumstances) , or
they may be nuisances per accidens (i.e. nuisances by reason of their location or manner of construction
or operation). A lawful business cannot be a nuisance per se, but may be one per accidens, even if
constructed and operated non-negligently. A private nuisance occurs whenever one uses one's own
property in a way that substantially interferes with another's interest in the private use and
enjoyment of that other's land. Liability arises, if the conduct was unintentional, when the actions
are negligent, reckless or ultrahazardous. But if the conduct was intentional, a person is liable if his
actions were unreasonable under the circumstances. In this case D intentionally and unreasonably
caused noxious gas and odors to escape refinery, and thus an injunction was required to avoid
irreparable harm to Ps.
P m/ show:
nature of conduct – neglig / intent doesn’t matter; just look at type of damage
unreas. invasion of homeowner’s landuse (here it was unreas.)
Ct’s Factors Considered:
 degree of harm
 social utility of each side
 cost in stopping use
Note: Penn Oil Claims entitlement to pollute. P claims entitlement to clean air. In this case,
Calabresi 3) imposed.
HYPO: Who prevails? X wants to build a retirement home for the elderly. Y wants to use his land
to build an outdoor concert hall. Cts look to the most serious harm. Injuries to health are
considered serious harms. Ct also use the cheapest cost avoider method.
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Calabresi Model
1. Property Protection for P = injunction. cannot pollute.
2. Liability Protection for P = P gets damages. Can pollute. [D gets what he wants]
3. Property Protection for D = D can pollute.
4. Liability Protection for D = D gets damages. Stop polluting. [P gets what he
wants]
Epstein Model (rejects reciprocity)
Thinks that P makes a prime facie case by showing that D physically invaded his property. This
Epstein's definition of nuisance. Physical invasion can include noise. Physical invasion, nusiance.
Where no physical invasion no nuisance.
What if D cannot evade the nuisance w/o great expense? Does it matter?
Under Epstein's approach the answer is No. restatement answer is maybe.
HYPO: halfway house for prisoners. maj. view – not a nuisance
HYPO: (Prah case) Solar Collecting Hypo- P-D action in nuisance for blocked rays. Both cases
compliance with zoning.
Issue: Societal Interest in P’s activity.
Court held sunlight as energy source reasonable use of solar energy. Nuisance found- avant garde
decision. At C/L, cts reluctant to enforce sunlight claims
HYPO: (Hornsby case) Spite fence example (aesthetics of neighbor). Std is wilful and deliberate
actions will be nuisance Generally with re nuisance, court will not get in habit of reg. aesthetics
Other HYPOS: Mining with re: surface estate, not keeping up house; for Epstein no physical
invasion.
Under a balancing test for nuisance societal value v. extent of nuisance mineral rights- isn’t this
assumption of risk.
Ellickson Model
Bell curve – we all have conception of what’s good, bad, etc. (any move toward left (from good
toward bad) is a nuisance)
Prah, Social Utility Test - blocking someone’s solar collectors is a nuisance b/c of imp. of solar energy (socially useful)
facts – solar collectors
Estancias Dallas Corp. v. Schultz, 1973 Balance of equities test - based on theory of necessity. Cost alone does
not matter. Public injury might be a factor in damages, even if you lose on the nuisance claim (might still get damages)
Facts: Ps sought to enjoin D from operating air conditioning equipment on the property adjoining
Ps residence (5 and one half feet away). Ps claimed that the air conditioning unit was loud and
decreased their property value significantly. Trial Court granted permanent injunction. D appealed.
Held: Texas law requires balancing of equities in nuisance cases, even if the jury has found that a
nuisance exists. Storey v. Central Hide Co, 1950. The Story ct noted that if the injury to the public
in enjoining nuisance would be great, the nuisance might be permitted to exist "of necessity". Here,
it is implied by the entering of the judgement granting the injunction that the ct balanced the
equities in favor of Ps. Furthermore, the existence of the unit is of no public benefit, and so
enjoining its operation would cause no public injury. 10k damages allowed.
Rule - In granting an injunction for a nuisance, must balance the equities.
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Boomer v. Atlantic Cement Co, 1970 Cost considered when considering factories. Here, D can come onto land
and do something for a price. Factory can pay permanent damages or shut down.
Facts: Ps, (a groups of landowners) complaining of injury to their property from dirt, smoke, and
vibration emanating from a neighboring cement plant (D) brought an action to enjoin the continued
operation of the p land and for damages. TC held that plant created a nuisance, but found
substantial damage b/c injunction would shut down plant's operation, refused to issue one. But TC
awarded Ps permanent damages instead.
Held: Damages may be awarded as an alternative to an injunction in nuisance cases. Another
alternative would be to grant the injunction but postpone its effect to a specified future date to give
opportunity for technical advances to permit the Co. to eliminate the nuisance. Permanent damages
would themselves be a spur to conduct more research. Future owners of this land would not be
able to recover additional damages, since the award is to the land.
Rule: Permanent damages creating an equitable servitude on land may be awarded in lieu of an
actual injunction and will be perceived as an injunction. Here, liability protection for P; D is paying
for costs of externalities - Nuisance as effective substitute for pollution laws.
Note: Does not seem to say what test it’s using; seems to be Epstein or Ellickson. 2nd prong of
Calabresi.
Questions: But what about the fact that land is unique?
Are we giving industry the power of condemnation?
If you were P how would you feel? This remedy may not make you feel like living
with this pollution.
Spur Industries v. Del E. Webb, 1972 opposite of cement case – Calabresi 4 – for public nuisance c/ get
injunction but have to help pay for moving. For private nuisance, probably will get only $$ b/c injury small.
Facts: P sought to enjoin D from running a cattle feedlot near its retirement community. Residents
complained of odors.
Held: D's operation was an enjoinable private nuisance as far as the people in the southern portion
of P's development were concerned. I have that they get $$ damages for the private nuisance. D's
operation was also a public nuisance, dangerous to public health. D is required to move not b/c of
any wrongdoing on the part of D, but b/c of a proper and legitimate regard of the cts for the rights
and interests of the public. Having brought the people to the nuisance to the foreseeable detriment
of D, P must indemnify (pay) D for a reasonable amount of the cost of moving and shutting down.
Nuisance is abated but P must pay for it.
Rule: The doctrine of coming to the nuisance does not prohibit granting injunctive relief against the
nuisance. Here P is paying for liability protection for D. Only done when P can foresee. A classic
example of 4) of Calabresi.
Defenses to nuisance claims
(i) hypersensitivity (usually take Ps like you find them). An objective, community standard
(ii) Coming to the nuisance. Why matter:
(A) Less sympathetic
(B) Probably paid less for the land
2. Summary of Nuisance
a.. How do you define what is bad?
Nuisance per se- illegal
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A majority judgment of what is bad?
What about minority
Freezes present conception of what is bad
Nuisance per accidents- junkyards, dumps; but too static a model.
Average use of area- contextual test.
Relative Costs of Abatement - Harm
Balancing Test- Question of Utility of
b. Private Nuisance- private Action allows balancing test exercised under C/L
c. Public Nuisance- by statute- injunction
d. Coming to the Nuisance- may stop it but protection for D.
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B. PRIVATE LAND-USE ARRANGEMENTS - SERVITUDES
These are agreements b/w private parties to burden one piece of land for the benefit of another
piece of land. Usually runs with the land.
TYPES OF SERVITUDES
Easements –
a non-possessory interest in land, which can be either positive or negative, where there are dominant
and servient estates.
 Agreement between 2 parties
Real Covenants enforceable at law - promissory agreements that bind the successors to the agreements
 agreement amongst a group of people
Equitable Servitude enforceable only in equity (restrictions which bind the land, not the people- has the same effect as a
real covenant).
-All three types overlap and interact.Covenants v. Equitable Servitude
 Equitable servitude is an agreement that somehow fails the test for a real covenant.
 Where there is NOTICE but mechanical rules of covenant fail, may be enforced as an equitable
servitude. - Idea that despite mechanical rule violation, notice will cause a way for covenant to be
enforced.
 Equitable servitude is enforceable only in equity, but real covenants are enforceable at law.
Profits –
servitude where you have the right to take something off of a person's land. Examples: Trees,
minerals
EASEMENTS
Easements in general
 Fee owner still owns land but must permit use
 Main advantage over giving away the interest in the land is that the fee owner takes over the land
if an easement ceases.
 Courts don’t require payment for the easement
 Generally, once an easement exists, it cannot be moved or terminate, etc. except through reverse
easement by prescription, written release, abandonment, merger (common ownership), when
purpose for easement no longer exists, forfeiture, the agreement includes a duration condition.
 There are some scope restrictions (e.g., only for residential cars)
 The public can attain an easement like an individual can
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Remedy
What sort of remedy is "does an easement exist or not?" It is a property remedy (not a liability
remedy). In all of these situations, it will be a property remedy, one person gets all.
Why don't we use a liability remedy? No reason why we can't treat it this way but court usually
doesn't b/c: (i) purchase of the property may have reflected the existence of an easement. (ii) we
want to free alienability.
Two Types
Positive
means that the owner of the dominant estate can enter the servient estate and do some positive /
affirmative act on it.
Negative
means forbidding a landowner from doing something on his own land that might harm neighbor
 blocking windows
 interfering with air flow
 removing the support of buildings
 interfering with the flow of water in an artificial stream.
 sunlight
 solar collectors
 view
Ex. Beach property. Scenic easements. However, cts are mixed.
Courts generally look down on negative easements as they impede Marketability and b/c every
man's land is his castle (should be able to so what he wants on it). Usually given only real way by
EXPRESS GRANT; rarely if at all by prescription, notice would be a nightmare and open
pandora's box.
Statute of Frauds –
An easement is an interest in land. Thus, it is subject to the Statute of Frauds and in order
for it to be legal, it must be a signed, written document. Easements can be appurtenant or
"in gross." The exceptions to this are easements by prescription and easements by
implication.
a. Easement Appurtenant
benefits the owner of the easement in the use of land belonging to the owner. An easement
appurtenant attaches to the dominant tenement and goes with it to successive owners - thus,
it is not personal. Owner of easement own it by virtue of his ownership interest in the land.
It cannot be detached from land unless the owners of both (dominant and servient
estates) agree. Can also have an easement appurtenant for life.
b. Easement in Gross
does not benefit the owner of the easement in the use of the land belonging to the owner,
but benefits the owner's business or benefits the owner personally in some way. It gives the
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owner of the easement a right to go on another's land, but not b/c it is connected to his
land. It is personal to the owner. Can only be for life. Does not survive death of
business.
c.
Third Party interests
(i) Reservation –
The owner of a land may convey land to someone else and can reserve for a third
party an easement in it. That must be a new interest that didn’t exist before the time
of conveyance.
e.g., Pamela grants land to Kristi and reserves for Jennifer the garden. Jennifer has a
reservation on Kristi’s land.
(ii) Exceptions in favor of third party are not permitted. An exception is a provision in a deed that
excludes from the grant some part of the land or some pre-existing right over it
(right was not created by the deed).
Easements can be created by:
1. agreements betw. parties, generally recorded if by agreement
2. deed
3. implication
4. necessity and proscription.
5. prescription (like A.P.)
6. estoppel???
Difference b/w license and easement?
License is a commission given by O for A to do something on the land- O giving A permission to
come on land and is revocable at will. (e.g., parking garage)
If passing over one’s land is done by O’s permission, it’s a license; if it is based on necessity,
implication, or grant, it’s an easement. If it’s not based on permission and it’s adverse for the
statutory period, it’s an easement by prescription (c/b recorded after court declares it).
If O chooses, O can revoke a license. There are two exceptions on ability to revoke a license.
1.
License plus interest - where Licensee has grant of license to remove chattel which he has
interest on the land- this is not revocable Ex. O sells A oranges and grants him a license to remove
chattel from land. May not revoke until A has got his oranges.
2.
License irrevocable due to estoppel - A relies substantially on license expends money or
builds something- by estoppel allowed. becomes grant thru estoppel
Notice Of Easement
1.
Easement in Record - Notice
2.
Easement by Implication /Prescription
Factual Inquiry
1. Obvious?- if underground no real notice
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Hierarchy when someone traversing other’s land:
By permission of owner; licensee
Necessity, implication or outright grant; easement (not revocable)
Easement by prescription - No permission given, no necessity, implication or grant but has
been used for a number of years
Types of Easements
Easements by Estoppel
Criteria:
1. have to spend a lot of $$ (improvements) in reliance on existence of easement
7. permission/actual knowledge of O
8. created by the court
9. has element of necessity (Holbrook) but isn’t an easement by necessity
Holbrook v. Taylor, 1976 How one creates easements by estoppel (personal, not permanent) – necessity also
factored in (no other access)
Facts: D gave permission for a road to be constructed across his property, to be used by a Co for
removing coal from mine. Road used until mine closed. P later brought property near D. While P
was building his house he was allowed to use road, and later P was given express permission by D to
use and repair the roadway. P used for 6 yrs with no problem. Subsequently a dispute arose b/w D
and P, P sought to declare his right to use the road w/o interference.
Held: A right to use a roadway over the land of another may be established by estoppel. One may
acquire a license to use a road where, with permission of the licensor, he makes substantial
improvements or uses it for purposes in reliance on the licensor's grant of permission. Under these
conditions, the license becomes in reality a grant through estoppel, and it becomes irrevocable and
continues for so long a time as the nature of the license calls for. Here P needs road to get to home,
he has made substantial improvements etc, all with actual consent of D, indicated that the license to
use the roadway may not be revoked.
Note: Although in the usual case. a license is freely revocable, a license which combined with an
interest in land cannot be revoked. This is similar to an easement. According to the ct's reasoning
this is an easement by estoppel.
Which theory would P have liked to win on and why? easement by prescription b/c it is
permanent in nature and can be transferred.
Easement Implied by Pre-Existing Use (by Implied Reservation)
Requirements (Van Sandt)
- reasonably necessary
- existed prior to severance
- apparent and continuous (but not necessarily visible)
- had to have been unity of ownership at one time
Van Sandt v. Royster, 1938 Don’t need visibility to have notice; use factors to determine implied easement
(different from majority rule where only strict necessity is required)
Facts: P found his basement flooded with sewer drainage and discovered for the first time the
existence of a sewer drain across his property. Ds refused to stop using the drain.
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Held: When one utilizes part of his land for the benefit of another, a quasi-easement (use that’d be
an easement but it’s across your own land) exists. Parties to a conveyance will be assumed to know
and to contemplate the continuance of reasonably necessary uses which have so altered the premises
as to make them apparent upon reasonably prudent investigation.
The court looked to several factors to see if there was an implied easement: (i) how much
necessity is there for the easement? (ii) what was the intent of the parties at the time of severance?
(iii) is there any evidence that the price of the lots affected by the easements? (iv) if a warranty deed
mentions, then of course you have an easement. (Note: This differs from the majority rule, which
requires strict necessity)
In addition to looking for an implied easement, the ct had to determine if the final purchaser
was bound by the easement. Even if there was an easement, was he a bona fide purchaser (a bfp is
one w/o notice)? Ct said that P had notice b/c he was using it. Therefore, he was not a bfp. Held
that the fact that the pipe, sewer or drain is hidden underground does not make it non-apparent. P
was charged here with notice of existence.
Majority Rule –
 if implied grant (for benefit of grantee), m/ prove parties’ probable intent (if it existed at time of
sale, it’s easy)
 if implied reservation (for benefit of grantor), m/ prove strict necessity (no other way to take care
of problem at the time of the sale)
Not favored by the courts.
Easement by Necessity
Requirements
 Does not require that there have been an actual prior use before severance
 The necessity must be strict rather than reasonable
 At one time (time of severance??), both the alleged dominant tenement and the alleged
servient tenement must have been owned by same person
 Can’t imply the easement of necessity through the land of a stranger unless the land was
unified
 necessity has to arise at time of severance
Duration
 will only last so long as the necessity exists
Othen v. Rosier, 1950 Necessity has to arise from moment of severance; there m/b no alternative (other cts –
cost/difficulty of alt. routes).
Facts: P and D own tracts of land which were formerly part of a larger parcel. In order to reach
the highway, P had to travel across D's land (i.e. D's land is landlocked). D then built a levee which
interfered with P's use of the land. D claimed an easement based on necessity and proscription.
Rosier also used road and maintained it and knew others used it.
Held: (i) In order to create an easement by necessity, the necessity must have existed at the time
that the estate was created. (ii) It must be shown that there was a unity of ownership of the alleged
dominant and servient estates, that the roadway is a necessity and not a mere convenience, and that
the necessity existed at the time of the severance of the two estates. The ct held that there was no
pre-existing use here- no easement before. (In Van Sandt the easement had existed before).
Note: Held that there was no easement by prescription b/c the use was permissive.
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Questions:
Could he have claimed an estoppel theory? For estoppel must prove improvements
occurred while D watched.
Easement by Prescription
Requirements the same as for adverse possession.
How do you stop a prescriptive easement?
It would depend on whether you are in a jurisdiction that adhere to the theory of the lost grant. In the
theory of lost grant jurisdiction must show non-acquiescence in it. Sending a letter will likely be
enough. Showing non-acquiesce is not enough in jurisdictions that don't follow lost grant theory; in
those jurisdictions, anything short of physical restraint or legal action may not be enough.
Muller v. Lutheran Conference & Camp Assoc. Minority View - can attain a personal easement (easement in
gross) by prescription.
Facts: lake for bathing and other recreation
Ct: assignable only once (problem of scope) – called “one stock”
Scope of Easements
Usually described only by size (but that can be dangerous, because it doesn’t fully limit use as the
grantor might wish in the future)
Brown v. Voss, 1986 CB 835 Can’t extend scope of easement without permission of servient estate, even where no
additional burden to servient estate
Facts: P bought 2 parcels of land (B, C) and tore down B house and built on border between B &
C. P only had easement over D’s property to get from lot B to the road.
Held: If an easement is appurtenant to a particular parcel of land, any extension thereof to other
parcels is a misuse of the easement. If the use does not over-burden the easement, an injunction
won't be granted. The reasonableness of the development was the key here. When there is an
express easement (as in this situation), you have to look at the intention of the parties. As these
parties only intended to grant access to B, then the scope of the easement is overburdened. No
easement rights to get to C. BUT ct. uses equitable powers and says that the party can use the road
to get to C.
Ex.: There was an express easement over the land of A. The owner of A decides to build a building
over the easement, but he constructed the building so that the owner of the easement can pass
under it (also created an alternative easement around the building). The ct said this was not
permitted. Once an easements located, you cannot change it. Such changes violated a reasonable
use of the easement. Also, servient estate cannot change the direction of an easement, even if the
distance is shorter.
Ending an Easement
Presault v. U.S. Easement ceases when abandoned by dominant estate. Disuse isn’t enough for abandonment
Rails to Trails Act
Here, did abandon the easement  no biking trails allowed.
Easement v. Covenant – Is it an easement or a covenant?
To be an easement, it m/ say it’s an easement in the document.
If it’s just an agreement, it’ll be construed as a covenant.
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COVENANTS
An agreement b/w owners of land as to restrictions on use. Covenants have to be express
agreements, cannot be implied. The basic scenario is that there are 2 parties, the relationship b/w
the 2 parties to the original agreement is called horizontal privity. With regard to covenants, the
problem is successors in title. Covenants can be . . .
Affirmative
means X promises to do acts on his land
Negative
means X promises not to do acts on his land
- [potentially covers same behavior as negative easement]
Every covenant will burden one party and benefit another party
Remedy: injunction + damages
If a dispute arises b/w A and B, either of them would have contractual remedies. The problem
arises with C and D who were not parties to the original K. This is where the law of covenants
comes in. Have to keep straight the running of benefits or the running of burdens. Each is
determined by the point of view of the successor.
Benefits - can the successor enforce?
Burden - is the successor bound?
Requirements for Enforcing Covenants Running with the Land
1) Intent - Did the original parties intend to bind successors?
2) Notice - whether the successors in interest should have been aware of the existence of the
covenant when they bought the property. If you have recorded a covenant, then law will hold
that you should have been aware.
 Generally applies only if successor is burdened
3) Touch & Concern - whether the benefits and burdens "touches and concerns" the land (deal
with landowner’s obligations – e.g., pruning trees).
4) Privity - what kind of privity of estate exists. Here we look to relation b/w the parties to see if
the particular requirement has been met.
a) Does it benefit? No privity required! Covenant c/b enforced.
b) Horizontal privity is privity b/w existing parties -- original parties must share same interest
in the same land when the covenant arose.
(1) Does the covenant benefit?
 Remember, Horizontal Privity not required
(2) Does the covenant burden?
 Horizontal Privity required 
(a) If both parties received land from the same grantor, or
(b) if original parties LL -T, or
(c) the parties are grantor-grantee, you have horizontal privity.
(3) Neighbors would fail this test w/o common land origins.
Note: The doctrine of horizontal privity is suffering some erosion and some jurisdictions
allow neighbors to enforce against successors.
c) Vertical Privity (Vertical Privity = entire interest transferred)
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(1) if entire interest is transferred to the present party  covenant is enforceable
(2) if partial successor (grantee gets < grantor’s full interest)  no vertical privity 
(3) Does the covenant benefit?
 Majority Rule  vertical privity not required in order to enforce the covenant
(4) Does the covenant burden?
 Is it negative?
 bound
 Is it affirmative?
 not bound
Equitable Servitude
Covenant that cannot be enforced due to defect
Requirements
(i) original parties have to intend that promise run with land
(ii) the successor must have had notice of the covenant. If recorded then there is certainly
constructive notice.
(iii) original covenant must have "touched and concerned" the land.
Note: privity is of no importance to equitable servitude.
Enforceable under property only.
Remedy for ES is only injunction. Under covenant theory, can get injunction + damages.
Tulk v. Moxhay, 1848 Created equitable servitude - granted P an injunction even though the covenant was not
enforceable at law as a covenant.
Facts: P sold to Elms, and a covenant in the deed prohibited Elms and his successors from ever
building on the property. Land eventually brought by D, but his deed did not contain this covenant
(but D knew of the original covenant (= actual knowledge)). When D indicated he wanted to build
on the property, P brought an injunction.
Held: privity of estate notwithstanding, a person who acquires real property with notice of a
restriction placed upon it will not be allowed in equity to violate its terms. The key item in this case
is notice. Notice of the inquiry may be either actual, inquiry or recorded. The restriction in the
transfer of land need not be embodied in a covenant, an informal K or agreement is sufficient. No
one purchasing with notice can stand in a different situation than the original purchaser.
Sandborn v. McLean, 1925 Common scheme for the subdivision – no covenant, but equitable servitude (or
reciprocal negative easement). Most cts have objected to this approach
Facts: Owner of lots deed lots with restriction that only residences would be built on the lots. P
traces his title to that original owner. D trace the titles to their adjoining lots to time before
restrictions. Only residences are built on all surrounding lots. Objects to D's erection of a gas
station on her lot.
Issue: Will ES be implied on every lot of the subdivision even though only half have it?
Held: Yes, original owner had common scheme (plus, meets BFP + notice). If the owner of two
or more lots, which are situated so as to bear a relation to each other, sells one with restrictions
which are of benefit to the land retained, during the period of restraint, the owner of the or lots
retained can do nothing forbidden to the owner of the lot sold. This is the doctrine of reciprocal
negative easements (they must start with common owners). Such easements pass their benefits and
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carry their obligations to all purchasers of the land provided the purchaser has constructive notice of
the easement. Ct said if you can prove this is a common scheme, then it can be applied on the other
lots. Common Scheme Idea
Problemsno real indication of a common scheme (how many subdivisions had to be made with
covenant before common scheme emerged?); notice is a thorny issue.
Note: this case is an aberration (only adopted by 4 or 5 states). Other courts look to such factors as
advertising, oral statement to buyers.
This case occurred when zoning was in its infancy.
How could this have been avoided?
(i) put the restriction to the lot in the deed
(ii) file subdivision map with the register of deed with each claim of title.
The later purchasers were bound b/c they were not bfps - they had constructive notice.
Content of Covenants
Hill v. Community of Damien single family home covenant doesn’t prohibit use of home as AIDS group home;
also violates FHA.
liberal construction of “family” using local zoning ordinances, etc.
Restrictions on the Content of Covenants
 FHA
 Shelly v. Kramer Restrictive covenants which have as their purpose the exclusion of persons by race, sex, etc.
are unenforceable by the courts (but can be made as private agmts).
Note: D.C. - if you try to record a deed that has such a restriction you would violate the Fair
Housing Act- specifically the one about advertising.
Termination of Servitudes
Servitudes have durations similar to those in other estates in land, such as fee simple; can endure
until a particular event, and life.
Ways to terminate easement:
1. Merger - when the title to the dom. and servient estates become owned by the same person.
2. Voluntary Release - if the owner of the dom. estate releases it.
3. Reverse Easement by Prescription - if the owner of the serv. estate starts using the land in an
adverse manner for a period equal to the applicable statute of limitations.
4. Abandonment - this will have to be more than mere non-use. Have to show intent to abandon.
 Easements by estoppel will end when the need ends
 Easements by necessity will end when the necessity ends
 Easements by prescription - follows the usual rules termination for easement by grant
Ways to terminate covenants:
Generally easier than terminating an easement. When dealing with easements dealing with two
parties. Covenants likely to involve more parties. Cts likely to step into covenant disputes.
1.
Illegal - Can't unilaterally get rid of a covenant, but if a covenant is illegal you can remove it.
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2.
Changed Condition - changed condition doctrine unless party who seeks enforcement pays
party who wants change. (Ex: of Calabresi 4); payment of damages not to be able to act
 Courts much easier on successors than on original covenanters. (e.g., Western Land)
3. Recording Provision - if not recorded and re-recorded every few years.
4. Release Mechanism - some can be gotten rid of by majority vote
5. Waiver - complete waiver by all parties.
Western Land Co. v. Truskolaski, 1972 Changed Conditions - Enforceable as long as it remains of subst. value
Facts: D placed restriction on property, which restricted land to single family dwellings, then
turned around and wanted to build a shopping center near property owned by P. P argued that such
a construction would violate a restrictive covenant. D says pop has grown, the character of the
neighborhood has already changed, so what's the problem?
Held: a restrictive covenant is enforceable so long as its provisions remain of substantial value.
The covenants will stand even though the subject property has greater value if used for other
purposes. Even though nearby streets have become heavily traveled, restrictive covenants are still
enforceable if the single-family character of the neighborhood has not been adversely affected, and
the purposes of the restrictions have not been thwarted. D did not carry its burden of proof that the
property is
not now suitable for residential purposes b/c of growth of commercial activities.
Further, even though the city council could reconsider rezoning the area around the
subdivision, a zoning ordinance cannot override privately placed restrictive covenants.
Limited Right to Modify:
Rick v. West, 1962 A limited reservation to modify restrictions does not terminate covenant, but modifications must
be limited – landowner had right to rely on covenant
Facts: D owner of a half-acre lot in a residential subdivision, refused to consent to a release of a
covenant in her favor restricting the lots to single family dwellings, thereby frustrating P's plans to
construct a hospital in the subdivision.
Held: Ct said the covenant was enforceable. Courts will not engage in a balancing of equities but
will enforce restrictive covenants unless there is a substantial change in the conditions of the general
neighborhood.
Note: D able to get essentially an injunction The ct here did not want to give this Co the right of
condemnation. Why isn't monetary damages enough? Cts recognize in land areas that money
doesn't always compensate, make whole.
Enforcement of Covenants by Condos and Cooperatives:
Cooperative - title to the land is owned by cooperation or association.
Condo - you own your own unit fee simple, share common areas as Tenants in Common
Pocono Springs, cannot abandon something you own in FSA, so m/ pay association fees
Facts: wanted out b/c lot wasn’t useable, but they couldn’t seem to abandon the thing!
Nahrstedt v. Lakeside Village Condo, 1994 Recorded declarations are presumed constitutional and valid unless
incredibly unreasonable
Facts: P kept three cats in her Condo in violation of rules, prompting D to assess penalties against
her in increasingly large amounts.
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Held: An equitable servitude is enforceable unless it violates public policy, it bears no rational
relation to the protection, preservation, or proper operation of the property; or otherwise has so
disproportionate a burden to all tenants so as to make it unreasonable.
Note: These are treated like equitable servitudes so at least constructive notice is needed.
Note: Courts are more likely to enforce covenants for condos due to close living quarters
Zoning and Covenants – Who Trumps Whom?
 Whichever is more restrictive prevails. (Of course, even if comply with all covenant and zoning
restrictions, can still be a nuisance)
 Zoning can't trump covenants.
 Can use change in zoning as evidence of showing Changed Conditions - in some courts
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C. PUBLIC REGULATION OF LAND USE
Can Use Zoning to Promote Gov’t. Objective:
aesthetics
family values
protecting residential districts
Not: population control, etc.
How does zoning usually work?
Local Legisl. Body
Planning Cmm’n.
Bd of Zoning Appeals
(zoning changes)
(minor variances for existing schemes)
City Planning Staff
(zoning maps)
Judicial review of zoning decisions
When trying to challenge a decision by planning commission, result will depend on whether it is
adjudicative (dealing with particular rights of individual in a contested case) or legislative (rational
basis test here).
Note- Good argument to stop zoning cases - administrative remedies; show P did not exhaust them.
Do you have a case?
1. If it is ordinance that lays down general principles w/o regard to specific property- it is
legislative.
 Legislative - whether general rule or policy applicable to open class.
 only needs to be supported by rational basis to be sustained
2. If it is decision to change to permissible use of a particular property- adjudicative (subject to
review – an individual asserts rights for decision-making by gov’t)
 Adjudicative - Whether actions involve application.
 substantial relationship
 m/ articulate standards
 decision m/ comport with standards
Current zoning is very discretionary.
Village of Euclid v. Amber Realty Co., 1926 A use-zoning measure will be struck down only if it was clearly
arbitrary and unreasonable having no substantial relation to police power concerns. If zoning doesn’t completely
prohibit use, it’s constitutional.
Facts: City had cumulative zoning (most modern zoning is not). D zoned property of P in such a
manner which materially reduced its potential value. P attacked the law on its face.
Issue: Is the ordinance justified under some aspect of the police power, asserted for the public
welfare?
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Held: A zoning ord., as a valid exercise of state police power, will only be declared unconst.
where its provision are clearly arbitrary and unreasonable, having no substantial relation to the
public health, safety, morals or general welfare. P claims the zoning impedes growth and
development. Court says they are just limiting it. The court refused to evaluate the wisdom of each
minor provision of the ordinance, since the overall reasonableness of the scheme was clear.
Note: There was no takings claim made in Euclid (at this time, a minor part of law); Amber Realty
wanted an injunction. In this case the court never address the protection of the property interest of
the individual.
Nec Tow v. Cambridge SCt refuses to take any more zoning cases – for state gov’t
Pre-existing, Non-conforming Use
PA Northwestern Distrib v. Zoning Hearing Bd, 1991 A vested property right cannot be abrogated or
destroyed unless it is a nuisance, abandoned, or taken by eminent domain. A zoning ordinance that discontinues a
previous permissible use is a taking.
Facts: 3 weeks after P opened an adult book store in town, the Bd of supervisors adopted an
ordinance restricting the permissive locations for bookstores and allowing only 90 days for
nonconforming uses to either comply or shut down. The ordinance is written in such a way to make
it impossible for P to move anywhere.
Held: A zoning ordinance which requires the amortization and discontinuance of a lawful
preexisting nonconforming use is confiscatory and violative of the state constitution as a
taking of property w/o just compensation. The effect of this law is to deprive P of lawful use of
property, thus it amounts to a taking and must be compensated. Ct says not nuisance b/c they were
acquited but nuisance can depend entirely on location. Can be lawful in one place, nuisance in
another.
Note: Same as estoppel. Ex. you get permits together, materials vested with right to build. Under
court's analysis the state can take only if unlawful use or nuisance, or eminent domain.
Dissent:
doesn't like this opinion. b/c believes that a community should be able to change,
just have to give the person enough time to move.
Question:
What’s the relationship between police power and valid public purpose? In federal
takings law, these are not the same thing. In this case, action was for public purpose and not police
power.
Rule: A vested property right cannot be abrogated or destroyed unless it is a nuisance, abandoned,
or taken by eminent domain
Termination or abandonment of use
Non-conforming uses normally run with the land. But if the use is abandoned, it may not then be
recommenced. However, the mere cessation of the use, even for a substantial period of time, will
not necessarily constitute abandonment.
Abandonment will generally be deemed to occur only where there is both an overt act of cessation
plus an intent to abandon.
Zoning Flexibility:
1. Variances –
have no right; throwing yourself on the mercy of the court.
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


Requirements- may be granted for exceptional circum if:
strict application of ordinance would cause undue hardship
 Note:
You can't have self-inflicted hardship.
 Ex: of self inflicted hardship: You sell part of lot which creates undersized lot.
the need for the variance is caused by a problem unique to the owner’s lot
the variance would not be inconsistent with the overall purpose of the ordinance
Commons v. Westwood Zoning 1. enforcing would cause undue hardship and 2. granting variance won’t cause
substantial detriment to public good
facts: house on small lot
ct: hardship – not self-induced, m/ attempt self-help
2. Special Exceptions (Assessments) –
Specific uses which community needs but don’t fit into a zoning category; need special permits. Ex:
churches, synagogues. Remember Dolan - entitled to it IF you meet certain conditions may 
Takings
Cope v. Inhabitants of the Town of Bruns., 1983 Stds for special exceptions m/b explicit or the ordinance
will be invalidated.
Facts: P sought a variance from a zoning ordinance restricting construction of apartment buildings.
A request was represented to D which rejected it under its power granted it by the ordinance to
reject variances which are not in the public welfare. P contend that the ordinance was
unconstitutional in that it constituted an improper delegation of legislative authority to the board.
Held: A zoning ord. may not delegate to a local board a legislative authority. The generality of the
ordinance does not provide sufficient legislative control over conduct of the board, this is an
impermissible delegation of power. Ord. is invalidated.
Rule: Town Ordinances cannot delegate legislative authority to a local board. For special
exceptions, have to have standards as to special exception have to be equitably applied (can’t be too
broad)
3. Spot Zoning –
Ask board to rezone piece of land just for you. One landowner given special treatment to
detriment of others. Degree to which you can challenge again depends on whether the jurisdiction
views zoning as an adjudicative or legislative decision. If adjudicative all kinds of judicial scrutiny
can be available. If legislative, very little judicial scrutiny.
4. Floating Zones –
Very new flexible device but m/ provide guidelines to be valid. It is a zone with specified uses, but
which is not mapped in any particular location at the time the ordinance is passed. Instead, the
scheme contemplates that a developer will later apply to have the floating zone made applicable to
his land. The zone is thus said to “float” over the entire land in the community, until it is
subsequently anchored on a particular site.
5. Contracts or condition re-zoning scheme –
By this device, the rezoning of a particular parcel is made subject to the developer’s promise to
comply with certain conditions, which will presumably better protect neighbors. If in fact you have
conditions which have nothing to do on actual property - can use Nollan saying that this is a
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takings. Do this run with the land? Generally speaking the answer is yes. Can claim this is a
covenant in gross, thus should not run with the land. Some courts have made such distinctions.
Aesthetic Regulation (Zoning for Taste):
State ex rel Stoyanoff v. Berkeley, 1970 Denial of P’s building permit does not appear to be arbitrary and
unreasonable when the purpose to be served is that of the general welfare of the entire community (by offending
sensibilities and market values).
Facts: P desired to build a home in one of the finer suburbs in the St. Louis area. The plans called
for the home to be of pyramid shape. A city ordinance established an Architectural Board to ensure
that new residences "conform to certain minimum architectural standards of appearance and
conformity." The homes surrounding P's lot were virtually all two-story houses of conventional
architectural design. The Architectural Board denied P's design. No other non-conformities - just
aesthetics.
Held: P said Board’s ordinance not allowed under the Enabling Statute. Ct replies that the
stabilizing of property values and giving some assurance to the public that, if property is purchased
in a residential district, its value will be preserved, is a legitimate objective for zoning ordinances.
(Problem: we don’t worry about property values in other contexts.) Property use which offends
sensibilities and decreases property values affects not only the adjoining property owners in that
vicinity, but the general public as well. When property values are destroyed or seriously impaired,
the tax base of the community is affected, and the public suffers economically as a result. Here, the
denial of the building permit for P's highly modernistic residence in an area where traditional
Colonial, French Provincial and English Tudor styles of architecture are erected does not appear to
be arbitrary and unreasonable when the basic purpose to be served is that of the general welfare of
persons in the entire community.
City of Ladue sign in window prohibited – too much – SCt strikes down
Anderson v. City of Issaquah stds for aesthetics m/b articulated w/ precision to avoid being void for vagueness
Facts – commission kept saying it needed something more (blue tile, etc.)
Held – void for vagueness – viol due process
Exclusionary Zoning - Controls on Household Composition:
Village of Belle Terre v. Borass
Facts: ordinance that zoned for "single family dwellings" with "family" defined as one or more
persons related by blood, adoption or marriage thus excluding groups of unrelated individuals (like the
students who sued).
Held: unrelated individuals have no "fundamental right" to live together and this ordinance is
rationally related to the problem of population density. Thus, it is family relations, not the right of
individuals to chose whom they may live with.
Note: Related by blood - higher societal value ‘sanctity of family’. If not related by blood, does not
fall into that category - use ‘rational relations’ test.
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Moore v. City of East Cleveland, 1977 Blood Relatives c/ live together
Facts: there was a zoning ordinance for single family zoning which defined "family" to include no
more than one set of grandchildren. Mrs. Moore was convicted of violating the ordinance and
sentenced to jail b/c she had living with her a son and two grandsons who were not brothers.
Held: Court invalidated the ordinance, thus limiting the holding of this case: "the ordinance (in
Belle Terre) affected only unrelated individuals ... East Cleveland, in contrast, has chosen to regulate
the occupancy of its housing by slicing deeply into the family itself ... (The) freedom of personal
choice in matters of marriage and family life is one of the liberties protected by the due process
clause of the 14th amendment... "
Note: SCt also has struck-down race-based zoning.
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