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PROPERTY OUTLINE
-Questions:
 Property vs. liability rules- why favor property rules when trans. costs are low and vice versa for
liab. rules? Trans. costs to what? (Coasian, litig-avoiding bargains?)
 Rights of “outsiders” under common property regime? (None?) See chart under 1st possess.
I.
What is Property?
a. Trespass v. Nuisance
i. Trespass to land: = strict liability (no need to show injury; harm presumed)
1. Intentional +
2. iInvasion of another’s property (by objects large enough to displace
space, i.e. trailer)
3. Jacquesa. Held usual rule that nominal damages will NOT support an
award of punitive damages does NOT apply to TTL.
b. Reasoning:
i. Individual interest in punishing trespassers:
1. Landowner’s right to exclude + trespass worthy
of protection;
2. Punitive damages as deterrent, even in absence
of harm, reveals ct.’s emphasis on gatekeeping
authority of land owners; “harm” here =
Jacques’ infringed upon right to exclude
ii. Societal interests “ “ “:
1. preventing wronged landowner from “taking law
into their own hands” since he know legal
system will punish trespasser w/ punitives
2. avoiding incentivizing trespassers – if damages
too low, trespassers will do cost/benefit analysis
and decide it’s more cost-effective to trespass &
pay small damages than not
ii. Nuissance: (tort) anything which annoys or disturbs free use of one’s property,
or renders its ordinary/phys. occupation uncomfortable for owner
1. Public nuisance – affects general public
2. Private nuisance –
D must interfere w/ P’s use/enjoyment of land in
way that’s:
a. ( Substantial; AND ? )
b. Intentional, AND
c. Unreasonable, negligent, OR reckless; OR
i. Unreasonable determined by balancing 2+ landowners’
respective interests
ii. Activity unreasonable when gravity of harm [to P] >
social value of activity [by D] alleged to cause the
harm….
1. RST gravity of harm factors:
a. Extent of harm involved;
b. Character of harm involved;
c. Social value that law attaches to types of
use or enjoyment invaded;
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3.
d. Suitability of partic. use or enjoyment
invaded to character of the locality;
e. Burden on the person harmed of
avoiding the harm
2. RST social value (util.) factors:
a. Social value that law attaches to the
primary purpose of the conduct;
b. Suitability of the conduct to the
character of the locality;
c. Impracticability of prevention or
avoiding invasion
iii. If after balancing test, a tie, then to break tie, ct. can
inquire…
1. Did one party act in bad faith? (ex. did one
neighbor act out of spite?)
2. Is one interference more distasteful than the
other? (ex. sewage vs. well)
3. Which party’s use is more “normal”/trad. use of
land?
4. Which party acted more “neighborly?”
d. Results in abnormally dangerous conditions or activities in
inapprop. places
e. Substantial and
(unlike pub. Nuisance - injures one/limited # people only)
iii. Trespass & nuisance contrasted
1. Trespass
a. *Protects interests in possession of land
b. Applies when D intrudes upon land w/ object large & solid
enough to phys. displace P from portion of her land
2. Nuissance
a. *Protects interest in use and enjoyment of land
b. D’s Invasion by small objects from neighboring land- ex.
pollutant, sound, light waves, sewage particles
b. In rem vs. in personam rights
i. In rem: right that puts “the world” on notice (ex. landowner has right to exclude
the world from his land)
ii. In personam: rights against specific party (ex. right to enforce K only against
other, specific party to the K)
c. Exclusion vs. Governance approaches to property laws:
i. Exclusion:
1. Decision about resource use delegated to an owner, who acts as
“gatekeeper” of that resource
2. Useful for resources like land, which have multiple potential uses, when
it’s most valuable to give owners discretion to choose which use most
valuable.
3. Law merely backs owner’s decision.
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ii. Governance:
1. Govt. prescribes partic. rules about permitted & prohibited uses w/o
regard to the other attributes of the resource; focuses on partic. uses of
resources; govt
2. Based on policy reasons – weighs reasonable & unreasonable uses of
land
iii. Exclusion --Governance
d. Coase Theorem:
i. (think about in context of nuisance law- spillovers from 1 parcel of land that
interferes w/ use & enjoyment of another’s land)
ii. Private actors can contract privately to reassign property rights & reach the most
efficient/optimal allocation of resources;
iii. Otherwise expensive litigation/govt. interference = waste of resources
e. Repeated Trespass (Baker)
i. When P seeks injunction to stop repeated trespass, as this is equitable doctrine,
ct. weighs policy, considerations of justice
1. Here, Howard County Hunt aware of multiple dog intrusions
ii. For equitable relief, P required to have clean hands – “no equity for one who
does not act equitably” ‘
iii. Equitable relief may afford P remedy when law does not (i.e. when P can’t get
damages) – when is this the case?
1. Repeated trespasses (Baker)
2. Trespasses by multiple people
3. Trespasses that created subjective harms not easily compensable by
damages (here, Baker’s loss not just of chickens, but of results to his
study)
f.
Building Encroachments ( Pile & Golden Press – contrasting approaches)
i. Pile- absolutist; if D’s structure encroached on P’s land = TTL, then P gets
injunction; D must remove structure, despite high costs & small encroachment
ii. Golden Press –
1. Exception to gen. strict liab. rule for TTL, in cases where P’s damages
very slight
2. weighs harm to P from encroachment against cost D would incur to
remove structure
3. Takes into account D’s & P’s states of mind – D acted in good faith,
made honest mistake, then tried to negotiate w/ P pre-litig.- offered to
chip away wall; P acted in bad faith (implicit) by refusing to negotiate
4. Concl: P not granted injunction forcing D to remove wall
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g. Property Rules & Liability Rules – (2 models of property protections & entitlements
distrib. – opp. points on spectrum)
i. Based on premise that cts. should consider distributional & justice concerns,
Calabresi & Melamed disting. between cts.’ assignments of entitlements &
assignment of modes of entitlement protections.
ii. Property Rule protection:
1. mandatory relief (injunction or no liability)
2. entitlement-holder must consent before another wishing to remove
entitlement from its holder can take it away
3. Person wishing to remove it must buy it in voluntary, negotiated
transaction; seller must agree to value of entitlement
iii. Liab. Rule protection:
1. payment to owner (in ct.-determined amt.) in exchange for
entitlement;(essentially forced sale by owner of entitlement in exchange
for other party’s damages )
2. entitlement can be taken away w/o entitlement-holder’s consent, but only
upon other party’s payment of ct.-determined compensation.
3. Ct. protects entitlement & their transfer or destruction based on value ct.
determines
iv. When to use which rule? Policy considerations - distributive justice vs.
efficiency
1. Prop. Rule
a. Least amt. state intervention
b. Cts. should use when trans. costs are low. (Rules 1 & 3)
i. Ex. when there’s small # parties on both sides
ii. Means consensual exchange of entitlements is realistic,
efficient possibility
2. Liab. Rule
a. Most amt. state intervention.
b. Cts. should use when trans. costs are high- (Rules 2 & 4)
i. When there are large #s of parties on one side in dispute,
liab. rules incentivize bargaining between parties to
dispute to avoid expensive litig.
ii. Less likely to have free-rider, negotiation problems b/c
both sides know that failure to negotiate successfully
could yield expensive litig. & poss. ct.-mandated
relinquishing of entitlement
iii. Consensual exchange of entitlements under prop. Rules
unrealistic, ineffic. b/c free riders on side w/ large #s will
drag their feet, forcing whole group to not negotiate,
consent to entitlements exchange
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Types of Holdings: Rules 1-4
Ct.’s mode of entitlement
protection 
o
Property Rule
o
Liability Rule
Ct. Assigns entitlement
to:
o
o
P
D
R1-P gets entitlement
-Ct. P protects it w/ prop. rule
R2–
- P gets entitlement
- Ct. protects it w/ liab. rule
Ex. Pile – P has entitlement
AND injunction- can force D
to tear encroaching structure
down
-Ex. Golden Press – P gets
entitlement to land, but D can
take P’s entitlement (keep
encroaching wall in place) w/o
P’s consent upon payment of
ct.-determined damages
R4
-D gets entitlement
-Ct. protects it by liab.. rule
R3
–D gets entitlement
-Ct. protects it by property
rule
Ex. Hinman – Ct. gives D,
airline, entitlement to airspace
high above P’s land;
trespasses (flights) can cont.,
and P can stop them only by
D’s consent
Ex. pollution – D pollutes; P
can force D to transfer
entitlement (right to pollute) to
P in return for P compensating
D-polluter
h. Ex Ante/Ex Post Problem: Another factor for deciding between prop. rules & liab. rules
i. Ex ante analysis:
1. analysis of situation pre-critical event, i.e. accident, K, commitment to
partic. use of resources
2. Ex. encroachments- consider circumsts. of 2 adjacent landowners preconstruction, when 1 owner thinking about placing building near
boundary line
3. Focuses on incentives for future conduct
4. Property rules more efficient in long-run from this POV, by
incentivizing future, efficient behavior – easier, more efficient for parties
to bargain before dispute-causing event
ii. Ex-post analysis:
1. “ “ “ post-critical event
2. Ex. encroachments- consider circumsts. of 2 adjacent landowners postconstruction
3. Focuses on fairness, distrubutional concerns
4. Property rules inefficient from this POV b/c it’s harder for parties to
bargain, reach optimal, mutually agreeable use of resources after disputecausing event
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i.
II.
Restitution
i. Equitable remedy – clean hands requirement, so ct. considers intentions of party
seeking rest.
ii. Mistaken Improver (Producers ) – different jds.’ models:
1. Pile/absolutist approach:
a. Apply law of trespass
b. True owner has choice between:
i. Injunction ordering encroacher to tear improvement
down; OR
ii. Declaration that building belongs to true owner as
fixture on his land; essentially owner gets free
improvement; this choice better from societal POV b/c it
preserves value of building for society
2. Golden Press-restitution approach:
a. Ct. balances the equities
b. If encroacher acted good faith at time of construction, ct. has 3
options:
i. Restitution award: Let true owner keep house and pay
encroacher its value
ii. Damages award motivated by rest.: Owner transfers lot
to encroacher in exchange for encroacher’s payment of
its fair market value
iii. Partition (restitution) award : Property sold to 3d. party;
proceeds divided between true owner and encroacher
Orig. Acquisition
a. First Possession – scheme for regulating competitive process of establishing ownership
of un-owned resources
i. Elements- 1st person who fulfills both becomes 1st possessor:
1. Intent to assert control over object; AND
2. Significant degree of power (possession) over object
ii. Wild animals – Pierson
1. Issue: What level of closeness to capturing fox establishes possession?
2. Analysis
1st possession spectrum: -sight of fox--pursuit ---close pursuit(dis.) --wound ( maj)---kill
a. Sight clearly not enough
b. Killing clearly is enough
c. Maj:
i. Holding: mortal wounding + contd. pursuit= enough; holds for party who killed fox
but didn’t do work of pursuit;
ii. Policy: favors bright-line rule as opp. to dissent’s – very clear who owns it (you shoot
it, its yours)
iii. (Implicit: this rule discourages inefficient, wasteful mob/racing behavior)
d. Dissent:
i. Concl: Must be reasonable prospect of capture – i.e. close pursuit; holds for initial
hunter who did all the work of pursuit
ii. Custom - Stresses its imp. in shaping rule.
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iii. Wants to incentivize expensive, socially beneficial sport of fox-hunting by making
sure party who puts labor into hunt gets reward of animal ownership (Lockean
labor/dessert theory)
iv. Notice: If initial hunter actively pursuing fox, he’s asserting intent to control to
world; this discourages others from competing over fox/wasting their time &
resources fighting over who owns fox (which would be the prob. if spotting fox alone
constituted ownership, which provides little notice to others )
iii. Should custom determine ownership thru 1st possess? (Ghen)
1. Limitations: Custom must be
a. Universally followed by all members of relevant trade/activity;
b. Must have been followed for long time;
c. Must not be contrary to gen. relevant law (whales – maritime law);
d. Must be ltd. and affect only a few persons;
e. Governs only until actual appropriation (1 person’s claiming of resource as his own) is
established, then ordinary rules of property take over;
2. Purpose of limitations:
a. Assures notice (within relevant comm.)
b. Assures that custom is efficient
c. Assures that custom won’t interfere w/ persons engaged in wider trade / in other markets
3. Pros- Good to incentivize customary activity/trade if :
a. It’s a socially, econ. beneficial activity, but it’s expensive & difficult to practice
b. Customary rule works well in practice, as shown by the extent of the industry which has
boomed under it
c. It’s widely embraced by whole relevant comm. already
4. Cons
a. neg. externality of depletion on society at large – “tragedy of commons”…even if custom
may efficiently allocate nat. resources within relevant group of participants
b. While people within relevant community/trade may have notice of custom, outsiders won’t;
would require a lot of outsiders for law to require them to be aware of custom
iv. Other relevant factors in est. 1st possession – fair competition (Keeble) & mob behavior (Popov/baseball)
1. Right to fair competition in pursuing one’s livelihood, socially beneficial econ. activity in the process
of trying to est. 1st possess. (Keeble)
a. D’s gunshots reduced # ducks available for P to skill, and thus, # ducks available for sale &
consumption in the market
b. Those hunting for livelihood can expect more protection against someone trying to disrupt
these activities
2. Mental state of parties- (Keeble)
a. Is competitor trying to deprive the other of 1st possess, not to obtain benefit himself of the
resource, but out of spite?
b. If so, law more likely to intervene in favor of hunter w/o malicious state of mind
3. Relevant if 1 party was part of racing mob (= social harm) or not (Popov) - ct. may lean towards
giving party who wasn’t part of mob at least ½ of the 1st possession interest
1st possession Policy Debate – good or bad rule of property law?
 Good:
o Results in private property- w/ benefits of security of expectation, investment, planning
o Simplicity/conserves public resources –
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
o
o

Bad:
o
o
decentralizes process to appropriators who decide whether to pursue the un-owned
resource
Ltd. govt. intervention, except when litig. occasionally arises

Notice:
 Avoids waste of nat. resources if scheme creates clear winner early in process of
appropriation (ex. Popov rule- 1st to grasp & then hold ball in trumph” est. 1st
possession b/c it discourages mob /racing behavior, a social harm)
 If among competitors pursuing animal or open land, everyone can tell earlier which
appropriator is likely to “win” possession, so others will give up, ending wasteful
race
 *Debatable* which Pierson approach to 1st possess. is most efficient in avoiding such
wasteful racing behavior
Fair- Equal opportunity- everyone can enter race for the resource, & 1st gets the prize
Demand side: Can create wasteful, mob/ cracing behavior in certain schemes  when people
do get resource, overconsumption, tragedy of the commons (“TOC”)  resource depletion
Supply side: : Discourages investment in natural resource if suppliers know it will just be
depleted by others/they won’t get to reap fruit of efforts
Exclusion
mechanism?
Governance
mechanism?
Open access regime
(“ToC”)
None
None
Common property
regime*
-Insiders get certain
customary privileges /
subject to certain
customary penalties
-Outsiders – no
rights?
Norms & regulations
Private property
All but owner owns
Owner despotism OR
Coasian bargain/ K
between owners
* Common property regimes in societies w/o written law, but w/ custom for regulating open access
regimes; between ToC & private property
v. Commons vs. Anticommons vs. Semicommons
1. Open-Access Commons:
a. Paradigm: Hardin’s “tragedy of the commons”
b. Ex. fishers in open-access fishery obtain full benefit of taking fish from sea, instead of
leaving fish for another day to reproduce to benefit fishing community as a whole;
fishermen each incentvized to overfish deplete resource
2. Semicommons
a. Intermed. State of affairs between pure open-access and private property
b. Ex. medieval farmland
i. ½ yr- land subdivided for farming (private)s
ii. ½ yr- land tract as a whole open to community for grazing
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3. Anticommons:
a. Resource from which everyone has right to excl.
b. Ownership of resource has become excessively fragmented, to point where society
obtains less than optimal use of it.
c. Disincentivizes private development
d. Ex. Soviet kiosks – no one used storefronts for businesses b/c too much red tape, so set
up kiosks in front blocking storefronts
b. Discovery
i. Johnson v. McIntosh
1. Background: early American disputes over claims to title between Euro.
descendants and Native Americans
2. Issue: Who has stronger claim to title to the land? (How to determine?)
3. Analysis a. Natives’ treaty w/ U.S. extinguished Natives’ land title rights
b. Once Europeans discovered N. America, his rights trumped natives’;
therefore the natives had nothing legitimate to transfer
c. Right to dominion/sovereign right to property (European conquerors
had) > right to occupancy (Natives had)
d. If original grantor not entitled to convey land in the 1st place (here, Natives,
who only had right to occupy land but no right to transfer ownership),
everyone following him in chain of title’s claim to land also invalidated
e. Must trace chain of title
4. Concl: Party who could trace his chain of title to Euro. conquest had stronger claim
to land than one who traced chain of title to transfer by Natives.
5. Crit.
a. Analysis based on paternalistic views of Native Americans as incapable of
managing / owning private property, assimilating to Western property
norms
b. DOES NOT address :
i. What is land being used for by whom? (Does one of parties have
stronger claim on basis of public policy, using land for greater
social good than the other?)
ii. Which party has stronger roots to the land?
iii. Don’t address Native American custom, which did incl. some
form of privfate ownership; nor raise issue of NA decimation
ii. Western land settlement as hist. validation of discovery scheme
1. Legislation vacillated from opposing and validating squatters’ rights – people
claimed land 1st then took title/paid U.S. later
2. Homestead Act- incentivized settlement of W. territories & Midwest; Settlers could
develop land & get it for free
3. Mining camps-- Informal associations governing land allocation
4. In both homestead & mining scenario - State & nat’l law eventually codified
association customs by statute
5. What maintained political legitimacy of this system? Why were homestead &
miner assoc. systems ultimately successful? - Perception of equality of opportunity
to access the land to anyone willing to put in the work to stake claim in the land
(Lockean)
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iii. Trenton Industries – Discovery in Patent Law
1. Facts:
a. P = high chair innovator who claimed his collapsible high chair design
new inventions
b.
2. Patent requirements
a. “novelty”
b. “non-obvious improvement”
c. “flash of creative genius” - Something you wouldn’t think of in course of
ordinary, mechanical, work as ordinary artisan
d. *Ps can only recover on infringements since patent date of issue
e. Balance between rewarding creativity of truly innovative inventors &
restricting future, potential inventors
3. Concl: mere improvement on high chair does not “rise to the dignity of an
invention” so doesn’t deserve exclusion rights of patent (at expense of curbing
future innovation, creativity of other inventors)
c. Creation
i. International News Service vs. Associated Press


AP’s allegations against INS:
o 1. Bribing A.P. employees for stories
o 2. Persuading member papers to breach agreement of exclusivity w/ AP
o Copying A.P. news from bulletin boards and from early editions of AP’s papers
& then selling them to INS customers
o Principle: A.P. claiming: we’re doing all the work to gather & distrib. news from
far ends of the earth, and INS (lower-end tabloid) reaping the benefits by
publishing A.P. stories earlier than AP publishing them
Analysis
o Weighing social good for consumers to have choice in news (INS arg) vs. AP’s
financial interest in making sure its journalism comes out 1st (AP arg.)
 Majority stresses the latter factor
 INS shouldn’t get fruit of AP’s work
o INS not entitled to “reap where it had not sown” – unjustly enriching itself based
on AP labor (Lockean)
ii. Midler – Publicity Doctrine
 Facts
o Ford ran ad. Campaign; tried to get Midler, but her agent said she didn’t do ads,
o Instead, Ford’s ad. Co. got one of Midler’s former back-up singers to, imitating
Midler, sing Midler’s famous song in the ad
o Ford got permission from song’s copyright holder to use song in ad.
o Many ad viewers thought they recognized the imitation voice as “just like
Midler’s”
o Ad doesn’t use Midler name or image - just back-up singer’s voice imiatating
Midler’s
 Issue – Is use of Midler’s voice, even if it’s an imitation, protected under Midler’s
property rights?
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



Rule – this jd. (CA) recognizes injury from “appropriation of the attributes of one’s
identity” (150) - (depends on user’s purpose in using person’s ID.)
o IF purpose of media use of person’s ID is informative or cultural- user is immune
under 1st amd.
o If purpose is merely to “exploit the individual portrayed,” no immunity for
image-user
Analysis
o Midler’s arg.: (Lockean/labor): I put work/effort into developing my brand/celeb.
Image, based on distinctiveness of my voice; thus I’m entitled to exclusive
property rights to my voice. [refine]
o Distinguished cases
 Sinatra – [refine holding / distinction](149)
 Adell Chem. Co. – Unfairr competition claim succeeded when ad co.
exploited celeb’s voice, but there, unlike here, celeb. did ads. For a
living
o Analogy: Motschenbacher (250 )[refine]
Concl. – voice is more distinctive than auto. (see analogized case Motschenbacher);
Thus, song of renowned singer protected (150)
o Qualification – Imitation of notable, celeb. ID only actionable in narrow
situation…Allegedly infringed-upon celebrity feature must be:
 A. commercially distinctive (ex. in Midler - voice of prof. singer widely
known, profitable as part of Midler’s “brand”/image)
 B. exploited- Deliberately imitated to sell product (not just for
informative/cultural purposes- protected under 1st Amd), and
 C. Sellers have appropriated what is not theirs
Lockean labor/desert theory elements [in I.P. context]
o 1. Combining labor with thing
o
o


2. Will giving property rights to person who combined labor w/ thing come at
expense of stifling innovative from future inventors? (151)
3. Will giving property rights to person who combined labor w/ thing discourage
waste of resources?
 Ex. Midler – She voluntarily turned down commercial; she should have
bargained w/ ad co. for desired compensation for her to sing ad song;
even if she ended up not singing song, this would have set fair market
price to her voice; by not setting price / turning down commerc. entirely
this not only precludes ad co’s ability to use her to sing song, but also
co’s ability to get someone else to sing
d. Accession
Principle:
o family of doctrines that stress awarding things that are unowned OR whose
ownership is contested ….to owner of most prominent thing to which ownership has
already been est.’ed.
o Operates under liability rules-damaages (as opp. to property rules- injunctions/spec.
perf)
Accession & Good-Faith Improvers - Wetherbee
o Issue: Does g.f. improver get to keep finished product he made, or must he pay
damages to owner of orig. (raw) material?
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o
o
o
Facts

D, in good faith, chops down tree owned by P
D converted timber from P’s tree, “by the expenditure of his labor and
money,” to hoops [finished product- material for barrel-making]
 Hoops D made significantly more valuable than standing trees P owned
before they were cut
(Utilitarian) Factors- When does improver’s mixing his labor with thing he doesn’t
own give him claim to keep the improved thing?
 1. What is mental state of improver ? (good /bad faith)? “clean hands” equity
requirement
 Here, improver made hoops in good faith.
 2. Degree of object transformation – how recognizable is raw material in
finished product? (Lockean)
 The harder it is to Id the orig. object in the final product, the more
likely ct. will award final product to the improver.
 Here, hoops very different from standing trees.
 3. Relative values of raw thing and improved thing?
 Here, hoops 28x more valuable of standing trees when they were cut
Concl: Improver here entitled to keep the hoops.

Accession Remedies :
o 1. If improver wins, improver must compensate owner of the orig. object in the amt.
of the value of the unimproved thing OR furnish the equivalent in kind;
o 2. If orig. owner wins, laborer could make (difficult) claim for restitution for the
value of his labor to improve the thing

Ad Coelum Doctrine – Edwards v. Sims
o Facts
 P/Edwards discovered cave entrance on his property – he worked to develop
it into successful tourist attraction
 D, Edwards’ neighbor, discovered that depths of cave were actually under his
land – claimed rights to cave ownership
o Majority Analysis – title theory
 Analogy to mine cases -Courts of equity have power to compel mine owners
to permit inspection of his mine upon suit of party who can show reasonable
ground for suspicion that his lands are being trespassed…..
 App.: Since D/Edwards’ neighbor has reasonable ground for suspicion that
his lands are being trespassed (by tourists)
 Concl- land survey should be made to see if neighbor has claim to
ownership of cave
o Dissent- Possession Analysis
 Ad coelum rule:
 Ownership of the surface implies ownership of the air space and
subsurface in a column (or “carrot”) of space running
upward/downward from surface boundaries
 Qualification: only applies to the extent that owner uses and enjoys
(possesses) area above and below property
 [Policy: bright-line rule reduce transaction costs of coordinating
collective agreements among many land owners – ex. airplane case]
 App:
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



Neighbor had had no interest in cave prior to this point
Entrance to cave on Edwards’ land; so he’s entitled to cave property
rights
 Lockean labor/desert theory – neighbor put no work into developing
cave into its valuable improved state as tourist site
Concl: Thus ad coelum does not protect neighbor’s property interest in cave .
Fixtures – Strain v. Green
o Facts
 Strain = buyer, Green = seller
 Upon moving from their home, sellers took with them (1) Chandelier, (2)
Mirrors, (3) Water heater
o Rule – Fixture: thing that, although orig. a moveable chattel, is by reason of its
annex. To OR assoc. to use of land, regarded as part of the land
 Factors for determining “fixture” status A.. Nature of article affixed
 Was it custom-built-into the premises? Then likely fixture
 B. Relation & situation to the freehold of the party making the
annexation - What’s ID of improver?
 If owner, who has clear incentive in making permanent
improvements in the freehold, given their long-term stake in it as an
investment, then prob. a fixture
 If tenant, who’s more transient, thus has less incentive to make
permanent improvements, prob. not a fixture
 C. Manner of annexation
 is thing physically attached to the property? (bolted?) Then likely
fixture
 Would removal of thing damage premises? (ex. removing bolted
mirror from the wall  damage to wall  Then likely fixture)
 D. Purpose for which annexation made
 Objective intent test – intention to treat something as fixture based
on circumsts. is relevant; what was said and done at the time of
transaction that would indicate reasonable intention to treat
something as fixture?
 Public policy – Subj. test based on seller’s private intentions
would incentivize dishonest parties to claim that they own
fixture, are entitled to take it post-move,
 proof issues – how to prove subj. intent to make something a
non-fixture?
 E. hist. context, custom- what is a “fixture” may change w/ changing
standards of living, expectations of homebuyers, over time
o Analysis
 Ct. rejects seller’s defense that when they 1st moved to this property, they had
installed these things themselves, & intended to keep them, even after they
moved to another home
 Applying OBJECTIVE test, seller’s secret intentions to NOT classify these
things as fixtures irrelevant
14
e. Adverse Possession [ applies to both real & personal property]

A.P. Principle: When adverse possessor takes possession, A.P. has rights good against
everyone but the true owner, b/c possession is a close proxy for ownership (but not
identical)
1. ELEMENTS OF A.P.- Occupant must act as ordinary would; occupancy must be:
 1. Exclusive; and
o (Restricting others’ access/ giving them permission)
 2. Open and notorious; and
 3. Actual; and
 4. Continuous; and
 5. Adverse under claim of right
o Without permission of true owner
o [ Cts. frown upon bad faith A.P.s – squatters and thieves]
2. Justifications for A.P.:
o 1. Lockean - True owner sitting on his rights; slothful, absent, while adverse
possessor is investing his work/labor into the property; thus owner is less worthy
gatekeeper than the alleged A.P. Losing the property will hurt the owner less, as
indicated by owner’s failure to sue within SoL
o 2. Hegelian personhood view - Diligent possessor, who’s built up connection to
the property that would be painful to break, should be rewarded
o 3. Utilitarian/judicial systemic view - Land records/title issues simpler when old
history of title becomes less relevant; difficult to prove and defend against “stale
claims” –burdensome for cts. (similar as rationales for SoL)
o 4. Efficiency/ Reducing transaction costs view
o A.P. reduces trans. costs of determining title to assets that last for a long time
(like land)
o Since AP systematically eliminates old claims (“like broom sweeping away
old cobwebs), which reduce costs of engaging in sale of goods/real estate
transactions, it enhances efficiency of property markets
3.
Ex. 1 of AP- Lessee of Ewing
 Facts
 Symmes- orig. owner – sold property twice, 1st to Ewing, then to Burnet, who is:
 Using land as sandlot – valuable for building materials
 Actively excluding others from the lot – granting permission for lot access
 No fence
 Sued people for trespass
 Pays taxes on lot – signaling to govt. – “this is my land”
 Analysis
 Burnets’ actions = notice to public he’s acting under color of title, as if he’s the true
owner – “gatekeeper behavior”
o Ewing & his successor knew about Burnet sale – They had notice of Burnet’s
assertion of title, yet they still did not assert their claim to the lot until 20 yrs.
later.
o (assumes Burnet= good faith adverse possessor)
15

4. Howard v. Kunto – AP issues in seasonal properties
 Issue: . Is AP claim defeated b/c phys. use of premises restricted to summer season
as vacation home for lack of continuous possession?
 Concl: No.
 Analysis:
o This is a beach home- it’s meant to be used temporarily/seasonally; *Shows
how AP claim very context-dependent
 Other AP points- Ct. stresses efficiency/practical view of AP:
o Stresses that adverse possessors bought property in good faith, not realizing
that the deed did not include a beach hom –“ erroneous deed description”
wasn’t purchasers’ fault
o unrealistic to expect that every purchaser should hire surveyor to confirm that
property they’re purchasing lies within boundaries described in deed; this is
“neither reasonable nor customary”

5. Songbyrd – AP & Statute of Limitation Issues
 Issue- who has most valid title to famous jazz musician’s recordings?
 Factso Byrd, jazz musician produced recordings
o Eventually recordings end up w/ Grossman (friend of Byrd)
o Grossman (Bearsville Co.) licenses to record companies
o P = Songbyrd’s descendants – want royalties from re-released recordings
o D = Grossman’s descendants
 Ruleo time-of-conversion rule – SoL for conversion begins to accrue as soon as
property converted.
 Appo Bearsville (Grossman’s) licensing agreement of the songs w/ record cos. =
point of conversion – showed:
 A. Bearsville’s intent to exercise control over Byrd recordings to the
exclusion of Songbyrd
 B. act that was inconsistent w/ interests of true owner (Songbyrd &
later his descendants)
o Thus, SoL begins to run at time when at time of conversion, when Grossman
1st began entering into unauthorized licensing agreements of Songbyrd’s
licensing agreements w/ record cos.
 Concl- Grossman (Bearsville) ownes tapes by AP b/c SoL for conversion claim
accrues under time-of-conversion rule. The SoL ran before Songbyrd’s descendants
brought claim.
 **Other jurisdictions apply demand rule (see Guggenheim, distinguished in
Songbyrd) – SoL does NOT begin to run until
o (a) true owner makes demand for the return of the property, and
o (b) the converter refuses.
16
f. Sequential Possession and Competing Principles

1. Armory – finders (F), converters (C), true owners (TOs)
 Issue- Who has best claim to title among TO, F1, and C1?
 Facts
o P = Armory, chimney sweep boy who finds valuable ring = (F1)
o D = Delamireie, goldsmith who stole ring from Armory (C1)
o
Rule: Order of best claim to disputed title:
[1] TO’s claim > [2] F1’s > [3] C1’s

o

In dispute between F vs. C F always going to win
 Party in possession (finder) wins against other parties not in possession (“the
world)….EXCEPT against TO.
 Reasoning
o As time passes, odds of T.O. showing up declines;
o Even if T.O. does show up, chances of T.O. winning AP claim
declines
Public policy
 1. Good faith - F1 acquires property in good faith whereas C1, who intentionally
deprives the other of property, acts in bad faith
 2. Black-letter rule - Ct. doesn’t want to incentivize retribution, self-help – don’t
want Ps like Armory to take law into their own hands
 3. Deters stealing
 4. Social utility- Ct. wants finder to make socially good use of the found property –
i.e. by selling it in the market, investing in it
 5. Ct. wants to encourage “Coasian deals”
 6. Increasing chances TO will get his chattle back – T.O. will prob. look for lost
property by looking at firms that sell such items, assuming F1 sold it
 7. Lockean desert- if in the course of one’s work he becomes a “F”- since he put
labor into finding it, he’s entitled
2. Clark v. Maloneyo Issue: Who has best claim to logs – TO, F1, or F2?
o Holding: Since F1 found logs first, he has best claim to ownership of logs “against all the
world but the rightful owner”
o Principles:
o
TO > F1 > F2 in order of who has best claim to title
 F1 can do virtually all the things TO can do to property
 Use it; or
 Transform it
o Policy:
 bright-line rule = efficiency
17

- society wants F1 to treat property as if it’s his to encourage property system to be
more efficient, self-operating, w/o need for ct. intervention.

3. Anderson
o Issue: Who has best claim to title – C1 or C2?
o Facts: Both P and D converted lumber
o Concl: C1 > C2 in order of best claim to title.
o Policy
 bright-line rule = efficiency
 giving C1 better claim to title than C2 is better than encouraging more wide spread,
systemic stealing
 very pragmatic, utilitarian- while ct. doesn’t condemn C1 and C2 for stealing, at least
this bright-line test avoids chaos of “endless series of unlawful seizures & reprisals in
every case where property [passes] out of the possession of the rightful owner”

4. Fisher v. Steward – locus owners vs. finders (bee case)
o Issue: Who has best claim to beehive on private land – F or TO?
o Facts:
 Fisher (F) found swarm of bees on Steward’s land (TO); told Steward
 Steward cut down tree & sold honey
 Fisher sued Steward & argued he was entitled to bees b/c he discovered them
o Rules
 At C.L., animals [on the land] go with the land [ratione soli]
 (Since this case, U.S. has abrogated rule w/ laws favoring hunters- hard for
landowners to make trespass claims against them)
o HoldingOwner of land where hive is has better claim to the bee hive than finder of the hive.
o Principles: locus owners almost always win over finders
 (Implicit: Social utilian/Lockean rationale- Ct. wants to encourage socially
productive work on private land; holding for Finder in this situation would
disincentivize TOs like Fisher from maintaining hives for socially productive/econ.stimulating purposes, if they knew finders could just take hives away)
 Sometimes who has best claim to property in this situation governed by custom

5. Goddard – Accretion (meteorite case)
o Facts
 Gooddard = landowner
 Elickson = lessee of land – gives Hoagland permission to come on land, where
Hoagland finds & digs up meteorite on Gooddard’s land
 Hoagland sold meteorite to scientist Winchhell
o Rule:
 Doctrine of Accretion
 Sub-rule of accession – smaller piece (whose title is disputed) legally
“becomes” part of bigger piece that belongs to owner
 Ct. stresses that meteorite fell on owner’s land, created hole, and became
embedded in hole- thus, it became “part of” landowner’s property by
accretion.
18

o
(Also applicable but not mentioned)
 Ad coelum doctrine
 Rights of finders vs. true owners First possession/ rule of capture
Concl: Landowner has better claim to meteorite than finder, who dug it up on his land
(despite finder’s implicit Lockean/labor arguments)
3. Values Subject to Ownership
a. Artists’ moral and cultural patrimony

1. Moakley – Artists’ Moral (“personhood”) rights
o
o Issues –
 Do artists retain some control over future owners’ use of the things they’ve
created (even beyond 1st buyer)?
 What constitutes “art” worthy of such protection?
o Facts
 P = mural artist; made 60s/ controversial mural on church wall – sex drugs
r&r
 D = conservative Church 2 that acquired the church building from the 1st
Church A that commissioned P’s mure
o Rule- Artists’ rights are inalienable, but waivable .[under SOME STATE
STATUTES]
 A. Artist has inalienable right over the art;
 B. Artist can waive this right;
 C. LIMITATION-…but artist cannot legally sell entitlement to
change/destroy the art to the property owner.
 (loophole: artist could require property owner to pay to her charity,
not her directly, for her to waive this right.)
 Policy:
 A. avoiding destruction of art during artist’s lifetime (“right of
integrity”)
 B. Protecting professional reputation of artists (econ. rationale)
 C. Protecting artist’s claim to authorship of his work (“right of
paternity”)


Critics of this rule/policy:
 A. Law & econ.- Rule restricts artmarket by discouraging people
from buying art b/c this complicates those transactions –restricts
rights & responsibilities of art owners (will also make it harder for
art buyers to resell it, vicious cycle etc.)
o Interferes w/ trad. rights of owners to exercise dominion
over property, incl. destruction (See beautiful
mansion/destruction/will case)
 B. Incentivizes property owners to make illicit coasian bargains w/
artist to buy artists’ waiver of protection
Corrow –Statutory Protection of “Cultural Patrimony”
19
o
o
o
o
o
o
Issue - What constitutes cultural patrimony (protected as inalienable by fed.
statute)? (Did C violate statute?)
Concl – C violated trafficking of cultural patrimony object statute.
Facts
 Corrow - Native Am. artifact collector/expert – wants ritual masks
 C “negotiates” w/ Navajo family – masks owner doesn’t speak Engl.
 C misreps. His intentions to her- didn’t tell her he wanted to sell masks, for
$, but rather that he planned to deliver masks to Navajo community in Utah
 Mask has spec. ritual significance in N.A. culture, collectively owned (made
C’s lie to mask owner esp. egregious – said he’d keep mask in Navajo tribe)
 FBI charges C w/ crime of unauthorized sale of Native Am. artifacts
Rule- Native American artifact statute – punishes trafficking of N.A. “cultural
patrimony” -means:
 (1) not owned by individual N.A.
 (2) could not be alienated, appropriated, or conveyed by an individ;
 (3) had an ongoing hist., trad., or cultural importance to the relevant N.A. group
 (4) Scienter – accused person must knowingly sell the cultural patrimony item
 Here, C was expert.
Analysis
 Ct. stresses C’s scienter - he was a collector, thus expert , thus he knew about
N.A. view of the masks as collective ritual objects/non-property; he also had
expert consultation
 (Subtext –statute designed to protect more vulnerable party;
 here, Navajo mask seller (old lady) was clearly weaker party b/c she sold
mask under false pretenses- that they’d stay in the tribe;
 there was a lang. & illiteracy barrier- she didn’t know what she was
authorizing w/ her thumbpring;
 he was an expert on Navajo culture & knew how to manipulate old mask
owner to his advantage knowing it was important to condition of sale that
C would keep mask “in the tribe” )
Criticism of “cultural patrimony” statutes Hard to define “cultural patrimony” – no notice
 (But here that’s not at issue b/c C is expert.)
 Law & econ. – anti-restraints on alienability/trade
b.

Academic Commentary on Domain of Property – What
values should be subject to Ownership?
1. Demsetz – Law & Econ. POV, PRO-PARCELIZATION/privitization of open-access
resources
o Any voluntary exchange is mutually beneficial to both parties involved in the trade.
o Benefits of parcelization – context of European beaver pelt industry in early U.S.
hist/displacement of open-access Native Am. system (beavers = food)
 A. Lockean -People only reap where they sow – get out of property what
they put in
 B. Corrects socially destructive racing behavior of open-access system,
which depletes common resource (here, beavers) negative externality*
20



o
o
C. Lowers transaction costs for Coasian bargains – b/c you know exactly
who you’re dealing w/ (who owns what bever pelts) in trying to contract to
buy a beaver
D. Europeans made economically more stimulating use of the beavers –
value of pelt > value to natives of beaver as food
o
Demsetz Concl –
 *Private property rights develop to internalize externaltiies when the gains
of internalization become greater than cost of internalization
 As resource value rises (ex. w/ commercialization, here, of beaver pelts), that
society will have more developed property rights.
o
Demsetz critics: simplistically , falsely assumes Native Americans were primitive,
had no form of parcelization/private property system of their own on small scale
2. Posner- Law & Econ (contrast w/ Radin). – pro-commodification of personhood things re:
prostitution
o Items associated w/ personhood (re: sex) should be allowed to be sold b/c it’s
paternalistic for society to legally prohibit sale of such personhood commodities –
sex, babies, etc.
o Women capable of doing their own voluntary cost-benefit analysis of such sales,
weighing value of chance to improve their own econ. situation
3. Radin- ANTI- COMMODIFICATION
Radin’s Thesis - *
 The closer property is to personhood end of spectrum, the stronger the party’s claim
to the entitlement should be.
 Anti-commodification of goods tied up in personhood. Once “personhood” goods &
services (like blood, sex, sperm, body parts) commodified, people less likely to
behave in accordance w/ social mores.
 Ex. Prostitution  Should be presumed involuntary, b/c it commodifies sex. Socially
detrimental, given the disadvantaged, vulnerable, desperate circumsts of
women selling sex; therefore it should per se not be sellable.
 (Implicit critique of Posner: women in socioecon. vulnerable position
effectively do NOT have free choice as market actors.)
-Radin’s Personal- Fungible Property SPECTRUM
 A. Personal Assoc. w/ person is interwoven w/ property’s value
 Ex. Wedding ring in hands of wife – sentimentally priceless, part of owner’s
personhood, irreplaceable
 B. Fungible Replaceable commodity
 Ex. Wedding ring in hands of jewelry store
Pros & cons of acknowledging “personhood” property
 Pro: acknowledges reality that people are bound up with certain objects
 Con:
 Skepticism of “object-fetishism” – personhood to the extreme
21



Claim that you have personal attachment to object diminishes w/ # of those
objects you have
When object associated w/ personhood induced by cash, becomes
commodified,
o Ex. People who gave blood for free gave higher quality blood
o People who gave blood or $ gave lower quality blood
4 Domino Theory – of goods tied up w/ “personhood- Anti-commodification (context:
prostitution). Once you commodify something associated w/ personhood (i.e. sex), it reduces the
value of that thing not just for the people involved in the trans, but also the way it’s perceived in
society at large
c. Public Trust Doctrine

1. Illinois Central RR Co. (1892)
o Issue: Was grant by IL. Leg. to private r.r. co. of land near harbor valid in the 1st place?
o Facts IL legislature owned harbor land area around Lake Michigan
 IL leg. granted land near harbor to private corp., Illinois RR., to develop land
 R.R. had oblig. to pay tax to Ill. govt. (but it has not been paying)
 Leg. then took away the grant from r.r. co.
 (Hist. context: corrupt IL politics)
o
o
o

Rule - public trust doctrine: (usually state law)
 Harbor = public domain
 Harbor & similar property held by the state, by virtue of its sovereignty, in trust for
the public
 “Control of the state for purposes of the trusted can never be lost….
 “…. except
 [1] as to such parcels as are used in promoting the interests of the public
….OR
 [2] can be disposed of w/o any substantial impairment of the public
interest….”
Analysis
 State of IL had no right to alienate the land by the harbor over to a private corp,
“when the whole people were vested in that land”
 Compares to Navigable waters –
 part of “public trust/domain” held by Congress pursuant to Commerce Cl.
– means navigable waters of U.S. open to public navigation.
 Fed. govt. controls navigable waters; trumps state laws and private property
rights
 [Note (not in case)- navigable waters principle also applies to navigable
airspace pursuant to Causby – it’s public domain]
Concl: IL grant to private r.r. co. invalid in violation of pub. trust doctrine
2. State of OR ex re. Thornton – Public Trust & Breach fronts - CUSTOM
o Issue: Who owns dry-beach area? Public trust or beach home private owners?
22
o
Facts- Private landowner fences off dry sand area – (Implication – beachfront properties ,
hotels, won’t be able to guarantee exclusive right to “private” beach to their patrons)
 Spectrum Vegetation area immediately next to property = clearly private
 Wet sand area where water touches = clearly public
 What is status of in between dry sand area?
 *Longstanding custom in Oregon for dry sand area to be public rec. area
[….contd. below]
o



Rule & Analysis - What constitutes valid governing custom?
 1. Ancient – “have been used so long ‘that the memory…runs not to the contrary”
 Here, this custom has been in place for a long time.
 2. Excercised w/o interruption
 Here, pub. use of dry sand area has never been interrupted by private
landowners before
 3. Use must be peaceable and free from dispute - Here, Yes
 4. Reasonableness – public has always made us of land in way approp. to the land &
the uses of the community
 Here, when inapprop. uses have been detected, municipal officers have
intervened to preserve order
 5. Visible boundaries
 Here, character of the land has clear boundary – dry sand area relative to wet
sand & veg. areas
 6. Custom must be obligatory
 Here, dry sand area has been used, as of right, uniformly w/ similarly
situated land elsewhere;
 Public’s use has never been questioned by an owner as long as public
remains on dry sand area/ did not trespass toward vegetation line (clearly
private property)
 7. Custom must not be repugnant, or inconsistent, w/ other customs or w/ other
law
Concl – dry sand area between vegetation & wet sand area belongs to public domain pursuant to local
custom. (public wins prescriptive easement – like A.P.; gives public right to use this sand area)
o *Reflects broader trend in favor of public-access beaches.
(Rose) Critics of Public Trust Doctrine- Waterfront cases- waterfront has become a commons in
which no one has incentive to purchase property/invest in land; tragedy of the commons
deterioration, waste of open-access resource
(Rose) Rationale for Public Trust Doctrine:
o , rec. activities = social glue , not just for people on the beach, but for society at large
o Public trusts accrue positive social externalities
23

Alt. Rationales for Public Trust Doctrine
o 1. Theory of plenteous goods- doctrine governs things (like waterfronts) that are so plentiful
that it would be too inefficient to create system of resource management
o 2. There’s market failure when there are large number of parties involved b/c private
collective action is not possible.
4. Owner Sovereignty and Its Limits
a. Criminal Remedies

1. People v. Olivio (3 cases)
o Issue: Can someone be charged w/ larceny if they are apprehended w/o leaving the store?
o Concl: Yes. Thief’s mere depriving owner of possession of the goods (w/o taking good
away) is enough to count as theft. Merely acting w/ respect ot property in way that’s
inconsistent w/ owner’s property ownership rights supports larceny conviction.
o Rule : central component of larceny is actor’s intent to violate owner’s property rights.
 (However, larceny isn’t all intent- D must move object- even if it’s just a few stepsto commit larceny (“asportation” required.”)

2. State v. Shack
o Facts:
 Tedesco owns farm, hires seasonal migrant workers who stay in “camp” on his
property
 2 migrant aid workers (working for partially public funded org.(, incl. Shack, come
on T’s property to visit (1 dr., 1 atty.)
 T confronts aid workers, doesn’t let them visit workers outside of his presence;
 Shack doesn’t comply, is arrested/charged w/ trespass
o Held: owner’s right to exclude does NOT incl. right to exclude the (quasi-public) migrant
workers
o Principles:
 Property ownership/right to exclude NOT ABSOLUTE. Ct. takes standard
approach to property, as opp. to black-letter rules.
 Ct. weighs human needs of migrant workers against T’s property rights to exclude;
ultimately migrants’ rights win out.
 Owners must use property “so as not to harm another’s”
 Property law doesn’t just exist to protect owners’ right to exclude/sovereignty, but
also serves human ends
b. Civil Remedies

1. Civil Remedies for Protection of Personal vs. Real Property- overview:
24
o
o
A. Personal property protection remedies:
 Replevin – spec. performance
 conversion – dam’s
 TTC -dam’s
B. Real property protection remedies:
 Trespass (protects possession)
 Dam’s
 injunction
 Nuisance (protects interest in use & enjoyment of land)

2. Intel Corp. v Hamidi
o Issue –
 Can intel get injunction against former disgruntled employee (to stop sending critical
e-mails of the co.)?
 Does Intel’s alleged econ. harm of emails distracting employees count as “harm in
fact” required for TTC? (No harm to co. servers alleged.)
o Concl- No. Intel not entitled to injunction.
o Rule: Injunction for TTC requires P to have harm in fact
o Facts
 Hamidi = former Intel employee who criticized Intel employment practices via Intel’s
e-mail system
 Hamidi’s communications to individ. Intel employees caused no phys. damage nor
functional disruption to co. computers; did not deprive Intel of use/enjoyment of its
computers;
 Message contents merely caused “discussion among employees and managers”
o Analysis
 No injury-in-fact b/c no actual damage to co. computer system
 No security breach by Hamidi.
 Alleged econ. dam’s of distracted employees insufficient to satisfy TTC element of
harm-in-fact.
o Policy: Bright-line harm-in-fact element of injunction for TTC is efficient
o Scholarship: Maj. echoes Lemley: pro-open-access of e-property
 impractical to treat Internet, e-resources like servers like real property (as dissent
wants)
 Trans. costs too high to get permission to use multiple, innumerable servers or to use
1 server properly
 Positive network externalities of internet; we want it to be open, free

Intel Dissent: Pro-Parcelization /Owners Right to Exclude for E-Property
o Analysis
 Intel’s Server = “Intel’s castle-“ like real property; should be treated like that
 Intel had right to enjoy a server free from disgruntled employee’s interference / to
block employee’s unwanted messages
25

o
o
Although gen. rule = injunction relief requires harm in fact, Exception to rule where
injunctive relief is appropriate: repetitive trespasses
Concl- Ct. should have granted intel injunction.
Reflects Epstein scholarly school Pro-exclusion & parcelization of e-property
 web = like phys. space (419)
 Server = business investment which is socially, economically useful
 To encourage such investments, law must examine servers as one would real property
& offer same property protections
c. Self Help

Self-Help Principles:
o EFFICIENCY
o Person in possession of property generally can use reasonable force to prevent or
terminate TTL or TTC.  self-help w/o resorting to judic. system
o Controversy: use of self-help to recover property once owner has lost possession.

1. Berg v. Wiley
o Issue: Was LL’s act of self-help of repossessing his restaurant property from
lessee/changing locks after tenant bviolated lease valid?
o Concl: No. Wiley’s entry was unlawful.
o Rule: Forcible entry and detainer statute (FED) – allows LLs expedite repo. Of their
property from breaching tenant thru special expedited judic. proced (efficiency). LL
must show:
 (a) right of possession; AND
 (b) his means of reentry were peaceable.
 state statute (maj. rule) - self-help is never available for LL to dispossess
tenant who’s [1] in possession AND [2] has not abandoned or surrendered
premises
o Analysis:
 Wiley’s self-help measures of locking Berg out w/ police officer present
circumvented FED expedited judicial procedure
 Jury correctly found that Tenant/Berg was in possession of the restaurant,
NOT LL/Wiley
 Thus, Wiley’s self-help repo. of the property thru lockout of Tenant/Berg
was wrongful
o
Facts: (Berg = tenant; Wiley = LL)
 Lease specified that tenant would make no changes to restaurant property
w/o prior written permission from LL/Wiley
26






Berg breaches lease by remodeling restaurant/operating restaurant in state of
disrepair & in violation of health codes
(Berg goes away- unclear whether Health Dept. shut down restaurant or if
she abandoned)
Wiley came in Berg’s absence & tried to change the locks (w/ cop present);
she caught him, objected, & he left, leaving locks unchanged
Later Wiley comes back surreptitiously, hiding outside restaurant, fearing
further destruction of his restaurant building;
Berg calls sheriff; Wiley called police
 Fact that both T & L called officers = T & L trying to avoid
escalation into violence
Later Wiley successfully changed restaurant locks w/ officer present then
eventually re-lets the property to someone else.

2. Williams v. Ford Motor Credit Co.
o Issue: Was repo. of car valid self-help?
o Concl: Yes.
o Facts:
 Husband bought car – it was in wife’s name also
 Couple divorced- husband remained responsible for payments, but wife
retained possession of car
 Husband defaulted
 Repo. Men came & took car away at 4am
 Wife stopped them from going away w/ car before getting personal property
out of the car, but didn’t stop them from taking car/object
o Rule- UCC Statute entitled Ford Motor Crdit co. to
 [1] “take possession of the collateral…..
 [2] w/o judicial process
 [3] if this can be done w/o breach of the peace”
 Policy rationales:
 Judicial economy
 **Avoids uncertainty among secured parties - encourages lenders to
make loans, b/c they know that in event of default, they have legal,
est. way to repossess the collateral
o Analysis -No breach of the peace here – wife raised no objection to the repo. men
that would escalate into violence

Williams Dissent
o Concl – Invalid self-help under circumsts.
o Analysis
 Wife did not object b/c she was in very vulnerable position. She was 1 single
woman (presumably multiple repo. man), early at 4am. She did everything
she could to object given this (requesting to get her personal stuff out of the
car.)
27


Maj.’s reasoning incentivizes violence- Had wife breached the peace by
objecting, then ct. would have held in her favor – this incentivizes breaches
of the peace that ct. should be trying to discourage
Jury could reasonably have found that there WAS breach of the peace
indicating wrongful self-help measures by Ford Credit Co. repo. People
d. Necessity - Exception to Right to Exclude
Ploof v. Putnam – Private Necessity
 Facts: D = owner of dock, P = sailor
o Storm; P moors ship on D’s dock to avoid risking his life
o D’s employee unmoors P’s boat from dock
o P injured & boat damaged
 Principle: Ct. weighs P’s private necessity to trespass during storm, danger to his
life by mooring his boat to D’s dock vs. D’s right to exclude people from his
dock/private property
 Concl – right to exclude not absolute
o P’s private necessity to trespass considering danger to his life trumps D’s
right to exclude;
o Owners recourse after the fact: D could negotiate later with P for payment for
service use of his private dock…or sue for damages
e. Custom- Exception to Right to Exclude





McConico
Issue: Does hunting in these customary circumsts. trump owner’s right to exclude?
Facts: P instructed D not to hunt on his Unenclosed forested/ UNimproved land; D
hunted anyway
Concl: Yes. Custom allows hunting under these circumsts.
Analysis
o Focuses on custom of allowing hunting on these lands
o “No harm, no foul” –
o Landowner can overcome custom by posting sign clearly indicating NO
TRESPASSERS (if its permitted by local statute)
**See also:
o Whaling case (first possession) - supra
o Beach/wet sand area case - supra
f. Public Accommodations Laws; Anti-discrim. laws - Exception
to Right to Exclude

Background: Title II of Civil Rights Act of ’64 – defines “public accommodations”
expansively
o Inns, hotels, motels- unless 5 or fewer rooms & Owner lives on premises
o Restaurant, caferias, or lunch counters
o Any motion picture house, concert hall, stadium…..or other place of exhib.
Or entertainment
o DOES NOT incl.
 private clubs not open to pub.
28

o
“common carriers” – today that would mean public transport. –Not
incl. here b/c this falls under Congress’ interstate comm.. reg. power
 retail establishments
(have passed own similar pub.c accommodation laws.)

1. Uston v. Resorts Int’l
o Issue: Does casino have right to exclude card counter, even if it’s unauthorized by state
statute?
o Concl: No, since it’s unauthorized by statute.
 Balancing/Public Policy: [1] Owners’ right to exclude is substantially ltd. by a
competing C.L. [2] right of reasonable access to pub. places
 Shows trend of expansive def. of “public accommdation” for anti-discrim. laws
(usually doesn’t incl. entertainment venues)
o Facts
 Uston = card counter in Atlantic City
 Resorts consulted w/ Commission chairman that said no statute or reg. barred
Resorts from excluding card counters from Casino  Resorts kicked him out
o Rule: Casino Control Act (NJ state statute) gives Casino Control Commission (CCC)
authority to set rules for casino games – but it did not prohibit card counting
o Analysis
 Subtext: Casino = public accommodation
 Since CCC alone authorized to exclude casino patrons, and statute
had no rule excluding card counters, then hotel exceeded its right to
exclude Uston just for “successfully playing the game under the
existing rules”
 Distinguishes card counting from “disorderly” conduct that
threatens security –( under those situations, public accom. Would
have right to exclude, but that’s not case here )

Other jds. have held opposite from Uston Ct. – Brooks, 7th Cir.
o Held: horse tracks COULD discrim. against “self-proclaimed expert handicappers”
o Reasoning: businesses will only discrim. if it is in their business interests- Thus,
entertainment venues’ market interests of not alienating segments of public will
discourage discrim.

2. Shelley- Anti-discrimination Laws (1948)
o Issue: Can courts enforce private agreements (restrictive covenants) aimed to
prevent blacks & other minorities from owning private property in a
neighborhood?
o Concl: No. (Although 14th Amd. (EP Cl.) does NOT directly bar private
discrim.) court-enforcement of a private agreement that’s discriminatory is
state action  Thus ct.-enforcement of restrictive covenant unconstitutional.
o Facts
 Shellys (African-Americans) purchased land from Fitzgerald
 Fitzgerald was in community that has restrictive cov.
 Other property owners sue Shellys , seeking relief that court prevent
Shelleys from taking possession of property; that court divests
Shelley of title pursuant to restrictive covenant
29
o


Crticism- Hole in SC arg: ct. seems to say self-help enforcement of racial
restrictive covenant IS constituional,( b/c it’s not “state action,” ) while only
judicial enforcement is unconstitutional (which IS state action)
3. Fair Housing Act (1968): illegalized unilateral action refusing to sell a house on
the basis of race (and other categories) – making both judicial AND private
enforcement illegal
o (a) discriminatory, false rep. of availability - You can’t say you have apt.
for rent, then if Hispanic calls, you say No, then if white calls, you say No
o (b) you can’t incl. terms & conditions that would exclude protected
classes of people – Ex. you can’t have term that you don’t want to rent to
people w/ children
o (c) – No discrim. in advertising
o (e) – No block busting – developers spreading rumors that minorities would
move into neighborhood; whites would fear dec. market values & sell below
market value to get out; developers would make subst. profits
o Exceptions:
 Sale/rental of single-fam. home by owner himself– not thru realestate agent/business
 Mrs. Murphy exception- when LL lives in building w/ no more than
4 units & is renting them out
 **Sometimes ct. won’t enforce discriminatory, restrictive covenants
as matter of pub. policy, even if it doesn’t fall under FHA.
4. Attorney General v. Desilets
o Issue: If LL has willingly rented to single, married, and divorced persons, but
refused to rent to unmarried cohabitants (“fornicators”) on religious grounds,
is LL discriminating unlawfully based on marital status?
o Concl: SC sympathetic w/ Ps. On remand, trial ct. will have to balance these
2 factor:
 (1)Burden on similarly situated Ds in renting to people who violate
their alleged religious beliefs;
 (2) State’s interest in promoting policy of statute: ensuring fair
housing access for rental units for unmarried people. (even
though it doesn’t explicitly incl. unmarried cohabitants)
o Facts
 Ds = Roman Catholic renters; Ps , represented thru AG, = unmarried
couple that wanted to cohabit, rent unit from Ds
 Ds have rented to married couples before
 Ps are claiming discrimination
 Ds claiming they are not discriminating against “unmarried” people
based on their unmarried status, but rather because their conduct of
fornicating
o Analysis
 Ct. rejects Ds’ arg. b/c the only reason Ds are not renting to Ps is b/c
they are unmarried/it violates Ds’ Catholic beliefs
 “The controlling & discriminating difference between (unmarried &
married couples) is the marital status of the 2 couples (implicit:
married couples, like unmarried couples, have sex )
 Mass. Statute aims to prevent rental discrim. based on marital status
 Unclear if “marital status” statute lang. covers discrim.
against unmarried cohabitants
30




AG Dissent: Ds’ interest in free exercise of sincerely held religious beliefs definitely
outweighs state interest in promoting statute’s policy goals
Commentary – purpose of statutes that prohib. discrim. in private housing
markets:
o 1. Increase housing opportunities/access for people in protected classes
(esp. racial minorities)
o 2. Eliminate personal harm/indignity suffered by members of protected
groups when they’re rejected by LL/seller on grounds of their member of
marginalized group
o 3. Eliminate social message of inferiority/subordination sent
out to larger community when LLs/ sellers discriminate based on
persons’ membership in protected groups
g. Licenses - Powers of sovereign owners as “gatekeeper”
Principles
o Owner’s power to waive his own right to exclude;
o Disting.licensees and trespassers- Licensees are NOT trespassers, but may BECOME
trespassers if they exceed scope of license
Paradigm cases: Can entertainment venues- theaters & racetracks- (which are NOT public
accommodations) – exclude their patrons/ticket holders thru ejectment?
o 3 approachs: A-C below. Morrone, Hurst, approach C.
o trend: treating licenses given for consideration like a K, and to determine/enforce the
K terms to resolve the dispute

1. Morrone v. Wash. Jockey Club of DC - Approach A to licenses in entertainment venues
o
Issue: Can racetrack exclude ticket-holding patron by ejectment?
o Principles: Yes.
 tickets to entertainment venues are licenses, which are always revocable
(NOT property rights in rem)
 Thus, only remedy for ticket purchaser is breach of K claim for
damages…NOT specific performance by self-help
o Facts: Horse racing track kicked P out after he’d bought ticket

2. Hurst v. Picture Theaters – Approach B to licenses in entertainment venues
o Issue: Can movie house exclude ticket-holding patron by ejectment?
o Principle: licenses are irrevocable (opp. view of Morrone ct )
o Facts;P bought ticket at movie house, then theater porter & policeman ejected him

3. Approach C to licenses in entertainment venues:
o Ticket creates (a) license AND (b) grant to see the entertainment
31
o

This combo. not revocable w/o good cause.
4. ProCD, Inc. v. Zeidenberg - software “shrinkwrap” licenses
o Issue: must phonebook software buyer obey co.’s shrinkwrap licenses (incl. in
package w/ software ?
o Principle: Yes.
 Shrinkwrap terms are treated like ordinary Ks. Thus, they ARE
enforceable against consumer UNLESS their terms are objectionable on K
law grounds (ex. unconscionability)
 Shrinkwrap terms & conditions Ks are NOT equivalent to exclusive in rem
rights that can be preempted by copyright law


h. Bailments - Powers of sovereign owners as “gatekeeper”
Principles:
o Power of owner temporarily transfer custody/possession (as
“bailor”) to another (“bailee) for specific purpose while retaining
ownership;
o Bailor transfers some ownership rights to bailee, incl. right to
exclude others from the thing
o After bailment’s spec. purpose completed, it’s understood that bailee
will return property back to owner.
o Owner-bailor free to resume possession at any time (UNLIKE lease
– fixed time term)
o In personam relationship- often arise by K (implied or express)
o Ex. leaving clothes at dry-cleaner
Bailee’s duty of care for chattel injury/loss/theft– (Allen)
o Approach 1- for whose benefit was bailment?
 A. When bailment for sole benefit of bailor, then law
requires only slight diligence on part of bailee, and makes
him answerable only for gross neglect
 B When bailment for sole benefit of bailee (ex. bailor paid
bailee), then law requires great diligence on part of the
bailee, and makes him responsible for slight neglect
 C. When bailment for benefit of BOTH parties, law
requires ordinary diligence on part of bailee, and makes him
responsible for ordinary neglect
32
o
Approach 2- Universal standard of “reasonableness” taking into
account full circumsts., incl. (incl. for whose benefit bailment is ) 
[fact-specific]
 Did bailor pay bailee?
 Was bailment for benefit of bailee?

Bailor’s duty of care for misdelivery of bailed thing to 3d party  strict
liability (Cowen)
o Both voluntary bailees AND involuntary bailees (finders) are strictly
liable for misdelivery
o Policy:
 Disincentivizes bailee’s misdelivery to 3d parties
 Bailee in much better position to track down 3d party
 Disincentivizes collusion between bailee & 3d party to
interfere w/ bailor’s property

1. Allen v. Hyatt Regency – bailments & theft
o Issue:
 A. Is relationship between garage quasi-public/private patron
and garage operator a bailment-for-hire?
 Who assumes risk of car theft?
o Concl - Yes. Garage operator/Bailee must assume the risk of car
theft
o Facts
 P locked car; car still got stolen from D/Hyatt garage
 Garage details: enclosed; only 1 entrance exit; open to
public, where attendant/cashier sat (ct. assumes some
security role)
 patrons took ticket w/ time stamp, which says that Hyatt
assumes no responsibility for theft; (ct. negates for policy
reasons)
 Some periodic security
o Rule – “bailment for hire by implication” (subtext – there’bailment
is primarily for benefit of bailee here b/c bailor paid to park in the
garage)
o Analysis
 A. Bailment? Yes. (see key facts above)
 B. Who assumes risk of car theft? Garage operator – Policy:
 Distributive justice: Garage operators (commercial
entities) better equipped than garage patrons
(consumers) to absorb risk of car theft
33


Ct. gives little weight to disclaimer on the ticket
Bailee in best position to track down stolen property,
as last person who had custody of it

2. Cowen v. Presspich – bailments & misdelivery to 3d party (strict
liability for bailee)
o Issue: Is Presspich’s status toward bond bailee, involuntary bailee, or
stranger?
o Held: Presspich = stranger/finder/involuntary bailee relative to bond;
thus, only has duty of ordinary care toward the bond.
o Facts: Presspitch worker gives P/Cowen’s bond to a 3d party he
mistakenly believe is P/Cowen’s messenger, who cashes bond
(Cowen  Presspitch for misdelivery)
o Rule– disting. between involuntary & voluntary bailees
 Voluntary accepts bailee responsibilities (usually though K
relationship)
 Has duty to deliver bailed article to the right person;
Misdelivery to 3d party = strict liability
 Involuntary – has no duty of care to guard for the property
at issue…UNLESS he exercises dominion over the thing, in
which case he becomes voluntary bailee  owes duty of
reasonable care over the thing; misdelivery to 3d party =
strict liability
o Analysis –
 Here, Presspich rep. was involuntary bailee b/c he had no Kagreement w/ the bailor, even though he did assume
possession of owner’s property (bond);
 Presspich only held bond for 15 secs., realized it was the
wrong 1, then pushed it back through mail slot. That does
not constitute “dominion” that would turn him into voluntary
bailee.

3. The Winkfield - Can bailee recover for dam’s of bailor’s thing in bailee’s
possession caused by 3d parties? (Yes)
o Issue – Can bailees recover damages from negligent 3d parties for
dam’s to the bailed thing in their possession?
o Concl- Yes. Winkfield-wrongdoing 3d party is liable to Post/master
(The Mexican), bailee, for damage caused to bailors’ (lettersenders’) property
o Facts – Collision between 2 ships- the Winkfield and Postmaster’s
vessel Mexican
o Principles
 Bailee’s (Mexican’s) possession = proxy for ownership as to
3d parties (Winkfield)
 Bailor’s (letter writers’) transfer of possession to bailee
(Mexican) confers upon bailee rights to bring actions
grounded in possession of the property against 3d parite.s
34


In action against a stranger (here, Winkfield) for loss of
goods caused by (stranger’s) negl, the bailee in possession
(the Mexican) can recover value of the goods
“Wrongdoer (Winkfield) who is not defending the title of the
bailor is quite unconcerned w/ what the rights are between
the bailor (letter senders) and bailee (Mexican), and must
treat the possessor (Mexican/bailee) as the owner of the
goods for all purposes, quite irrespective of the rights and
obligations as between him and the bailor”
i. Abandonment & Destruction - Powers of sovereign owners as
“gatekeeper”

Abandonment Principles
o A. To count as abandonment of personal property, owner needs:
 (1) intent to disclaim possession ownership (w/ no intent of resuming
it); AND
 (2) To perform some act manifesting that intent (to put world on
notice)
o B. Full abandonment of land/real property usually not an option. (Pocono
Springs Civic Ass’n, Inc.)
 Policy : avoiding negative externalities to society of abandoned land;
Even if property had negative values to owner, it may have positive
values to society that could’ve been optimized w/ transfer (sale to
someone else)

Destruction of Property Principles
o A. Destruction of Personal property- (most common)- generally, a person
is free to destroy his own property, even if it is wasteful destruction of
positive-value asset (ex. Rolex)
o B. Destruction of Real Property (Eyerman)
 Issue: Should ct. enforce P’s wishes in will to have her lavish home
in nice neighborhood destroyed?
 Concl- No.
 Facts: P directed in her will to have her lavish home in nice
neighborhood destroyed (made no commercial sense – subtext- to
stick it to her relatives)
 Analysiso Focus on societal waste of complying w/ woman’s wishes empty lot would be substantially less value than house
o Destroying home  destroying beauty of historic. neighborhood
 negative externality on whole community
o Criticisms of this outcome – cts. shouldn’t interfere with
owners’ freedom to destroy their property, even if it’s wasteful;
there’s socially beneficial value in people knowing their wishes
will be fulfilled after they die.
35
j. Transfer (a.k.a. alienation) - Powers of sovereign owners as
“gatekeeper”

Transfer Principles
o Owner’s right to eliminate his ownership, while creating ownership rights in
another (“designating new gatekeeper”)
o Law promotes free alienability (exception: personhood issues- see above) as
policy matter Cts.. strike down total restraints on alienation (ex. “I sale painting to
you on condition that you never sell it” void )
 Cts. more nuanced on partial restraints on alienation – they’re invalid
only if they’re unreasonable.

1. Transfer by saleo Governed by laws of K
o Lauderbaugh
 Issue- Is retraint on transferring lake shore property reasonable?
 Facts- Homeonwers’ assoc. agreement = restraint restricting
alienation of lake shore property ONLY to Assoc. members
 Rule: Partial restraints on alienation only invalid if “unreasonable”
 A. TO what extent does transfer limit restrain potential
transferees? (Ct. wants to encourage restraint that is least
limiting on the segment of market that can be buyers)
 B. How many substitutes are there for the transferee?
 Concl – No. Restraint on transfer invalid.

2. Transfer by gift
o Valid gift requires:
 (1) Owner’s donative intent; AND
 (2) delivery; AND
 *Must be unequivocal.
  clearly signals to world that transfer has occurred)
 (3) Acceptance
o

Irons v. Smallpiece
 Issue: Valid transfer by gift of horses from father to son?
 Concl: No b/c no delivery.
 Analysis:
 5 months pre-death, father promised son verbally he’d give
gift of colts to his son (subtext: donative intent)
 Father also agreed to furnish hay to son to feed colts (it was
expensive)
 Father never delivered colts to the son (but did deliver hay)
3. Transfer by will
o A. Will Principles –
 Formalities: Attestation by 2 witnesses; SoF
 If person dies intestate (w/o will), kicks in intestacy statutes
(“default will” that tries to guess decedent’s wishes)
 designate decedent’s heirs (usually spouse, children, then
remaining relatives).
36

o
If there are no heirs and no will, property escheats to the
state.
B. Gifts causa mortis (in contemplation of death):
 sub. for wills
 If (alleged) giver recovers, then gift rescinded & goes back to owner.
 Require unequivocal, actual delivery during donor’s lifetime (like
other gifts) to be considered valid transfers
 Purpose of strict delivery requirement:
 1. Evidentiary – to prove giver’s intent to transfer property
 2. possession = strong proxy for ownership
5. Forms of Ownership
a. Divisions by Time

Principles:
o Estates: property right that measures person’s interest in land in terms of duration, in
terms of Present possessory estates (and Future possessory interest (interest that
does not take possession until happening of future event)

1. Fee simple absolute (FSA):
o Has no natural end- unlimited duration
o Ex. O grants Blackacre “to Marge and her heirs” or “to Marge in fee simple,” or “to
Marge.”
o Future interests: NONE

2. Life estate (LE):
o Comes to natural end with the death of a named person (usual holder of the estate)
o Alienable by gift or sale , but NOT by will
o Ex. O grants blackacre “to Marge for life, and then to Lisa.”
 Marge has life estate – ends upon her death.
 M’s interest followed by L’s remainder in fee simple
o Future interests
 a. “”O grants blackacre to M for life.”
 Future interest: reversion in O/grantor
 b. “O grants B to M for life, then to N.”
 Future interest: remainder in fee simple in N.
 c. O grants blackacre “to A for life, then to B for life, then to C”
 Future interests: B has remainder in life estate; C has remainder
in fee simple
 d “O grants B to M for life, then to her adult children.”
 Future interest: contingent remainder (**subject to RAP) in adult
children
 e. “O grants blackacre to M for life, then to N if [x Condition] occurs.”
 Future interest: contingent remainder (**subject to RAP) in N
37




Contingent remainder can be in FSD, FSSEL, FSSCS – look for key
lang.
f. “O grants B to M for life, then to N, but if C occurs, then to K. “
 Future interest: remainder in N
g. “O grants B to M for life, then to her children. [N is only child at time of
grant]
 Future interest: remainder in N (**subject to RAP)
3. Defeasible fees: like fee simple, except they kick in future interests upon happening of a
named contingency,
o a. Fee simple determinable (FSD):
 Ends automatically upon occurrence of named event, in which grant or
grantor’s successor takes property (if event never happens, then FSD is like
fee simple absolute)
 Future interest: (automatic) Possibility of reverter (in grantor)
 Ex. “O grants blackacree “to Springfield Law as long as it is used for
instruction in law, [then to O].”
 Springfield law has FSD
 O has poss. of reverter. [whether he’s mentioned or not.]
 Key FSD “lang. of duration”: as long as, while, during, until, so long as
o
b. Fee Simple Subject to Condition Subsequent (FSSCS)
 Continues indefinitely except that upon happening of named condition
 Future Interest: right of reentry in grantor (non-automatic) - self-help or
lawsuit
 Ex. O grants blackacre to Springfield Law, but if it is not used for legal
instruction, then O has the right to reenter and take the premises.”
 S. Law has FSSCS
 O (grantor) has right of reentry
 Key FSSCS lang.: but if, condition that, provided that, provided
however, if
o
c. Fee Simple Subject to Executory Limitation (FSSEL)
 Defeasible fee followed by interest reserved to 3d party (as opp. to grantor)
 Present possess. interest automatically ends by happening of named event
 Key FSSEL lang: same as EITHER FSD OR FSSCS.:
 Future interest: (automatic) executory interest in 3d party (in both ex. –
Springfield Animal Hosp.)
 Ex 1- O grants blackacre “to Springfield Law as long as it is used for
instruction in the law, then to the Springfield Animal Hospital.”
 Ex 2- O grants to Springfield Law, but if it is not used for instruction in the
law, then to Springfield Animal Hospital.”
b. Numerus Clausus
 Cts. presume there is a fixed menu of property rights; parties cannot
customize/create new ones like in K law
 This system leads to optimal standardization (Merill)
38
There’s larger # of (anonymous) actors in system of property rights
than in system of K law
o Since we don’t know who these actors are, cts. concerned about ease
of alienating (transferring) alienability
o 1 party’s creation of a new property right (ex. time share in watch)
increases info./trans. costs for prospective K partners and
successors  this will make idiosyncratic right less valuable to
potential buyers, and thus, they will pay less for such rights.
(restrains alienability of property)
o Thus, allowing even 1 person in market for certain property to create
idiosyncratic property right, means the info. processing costs of all
persons who have existing OR potential interests in this type of
property go up  external cost on other market participants
Prevents fragmentation, which restricts transfer of property in free market
Ex 1. Johnson v. Whitono Royal’s will: After decease of all my children, I bequeath to Sarah
and her heirs on her father’s side 1/3 part of all my estate…”
o Held: qualified fee simple title to Sarah (“on her father’s side”)
invalid b/c it creates a new kind of inheritance beyond fixed menu of
estates
Ex 2 Garner – Can lessor grant tenant lease “for life?”
o Maj. rule: construe interest as fitting in the closest of the estate
system categories  life estate OR tenancy at will
o



Present Interest
1. Fee Simple Absolute
2. Life Estate
Ex.
a. O grants land to M.
b. O grants land to M in fee
simple.
c. O grants land to M and her
heirs.
a. O grants land to M for life.
Future Interest
b. O grants land to M for life,
then to N.
b. Remainder; indefeasibly
vested
c. O grants land to M for life,
then to her adult children.*
c. Remainder; contingent*
d. O grants land to M for life,
then to N if X CONDITION
occurs*.
d. Remainder; contingent*
NONE
a. Reversion (in O).
39
3. Fee Simple Determinable
4. Fee Simple Subject to
Condition Subsequent
5. Fee Simple Subject to
Executory Limitation
e. O grants land to M for life,
then to N, but if C occurs, then to
K.
e. Remainder (in N); vested
subject to complete defeasance
f. O grants land to M for life,
then to her children*. [N was
only child at time of grant.]
f. Remainder (in N); vested
subject to open*
[ g. O grants land to M for life,
then to B for life, then to C. ]
O grants land to M as long as X
CONDITION occurs (then back
to O).
O grants land to M, but if X
CONDITION occurs, then O has
the right to reenter and take the
premises.
a. O grants land to M as long as
X CONDITION occurs, then to
N [3d party].
b. O grants land to M, but if X
CONDITION occurs, then to N
[3d party].
g. B has remainder in life estate;
C has remainder in fee simple
Poss. of reverter in O*
(even if it’s not explicit)
Right of reentry in O.
Executory interest in N*
* = SUBJECT TO RAP
c. Conflicts Over Time

1. Waste Doctrine –
o When 2+ persons hold interests in single pieces of property, potential for conflicto Ex. Holder of present possessory interest of life estate favors current
consumption/investments producing quick return; whereas holders of future interest of
remainders will prefer long-term conservation of the asset
o Brokaw –
 Facts
 George had life estate in NY mansion overlooking Central Park,
followed by contingent remainder in George’s daughter, subject
contingent remainder in 3 of testator’s other children
 Testor’s son wanted to raze private mansion to build more profitable apt.
building
 Future interest holders (George’s siblings) object to this plan;
 Held: George can’t raze the property against wishes of future interest holders
(who object)
 Principle
40


Present interest holder must turn over property to future interest
holder(s) in substantially the same condition as he/she received it.
 Present interest holder must use resource reasonably during time of
his interest. [STANDARD – NOT BRIGHT-LINE RULE.]
 Life estate (or ANY PRESENT POSSESSORY INTEREST) entitles
interest holder to use of the interest , but NOT dominion (meaning he
can’t “change the inheritance or the thing”). 
App -Doesn’t matter that George intended to demolish home to create something
objectively good- more profitable apts. He can’t demolish apt. b/c that would
substantially change the property interest at expense of future interest holders’
interests.

2. Valuation of Interests:Time value of money – Money today is worth more than money in the
future because of inflation. Ex. If you have remainder worth $100K 3 years from now, then it’s
worth less in year 1

3. Restraints on Alienation
o Cts. hostile to such restraints because central part of owner sovereignty = right to
transfer/against public policy
o If grant/conveyance has cl. limiting interest-holder’s right to alienate, ct. will strike (ex.
“to A in fee simple, as long as A has no power to alienate” will be read by cts. as “to A in
fee simple”)
 4. RULE AGAINST PERPETUITIES
o
o
Policy: invalidates interests that gives too much remote control to the “dead hand” of
grantors who are long gone (/ avoiding aristocratic concentration of large interests within
families by breaking those interests up)
THE RULE: “No [future] interest is good unless it must vest…not later than 21 yrs. after
some life in being at the creation of the interest.”
 Step 1- does RAP even apply to this future interest?
 Future interests subject to RAP:
 A. Contingent remainders (both those based on condition that must be
satisfied before vesting (ex. “passing the bar”) AND those based on
identity of the remainder-persons (ex. gift to “children” who may not be
born yet )
 B. Executory interests
 C. Vested remainders subject to open
o Ex. : O grants ‘to A for life, then to B if he passes the bar.”
 A has life estate.
41


B has the contingent remainder.Once B has passed the bar,
remainder becomes vested remainder (b/c it’s no longer
uncertain whether B will satisfy condition).
Future interests immune from RAP: (vested interests upon their creation)
o A. Reversions in the grantor (express OR implied)
o B. Right of reentry in grantor
o C. Poss. of reverter

Step 2- determine life in being (a.k.a. measuring life)
o Person alive at time of granting/the interest’s creation who affects vesting of
future interest. (doesn’t have to be named in instrument; can be more than 1;
just need 1 that satisfies RAP for interest to be valid); cannot be an
institution/corp.; must be an individual.
  If there’s no measuring life, future interest is invalid.
  Hint that there’s NO MEASURING LIFE: if condition is in the
passive voice/there’s no person who affects vesting Ex. 1 “to A, but
if weed is inhaled on the premises, then to B.” B’s E.L. has no
measuring life b/c A’s actions do not affect vesting. No measuring
life invalid)
 Ex. 2- “To City, so long as it is used as a library, then to S and his
heirs.”
o RAP period: Point when measuring life dies, + 21 yrs. – That is RAP
period. If there are multiple measuring lives (ex. several children), then RAP
period is point when last child dies + 21 years.

Step 3: Will conditions of future interests (in which RAP applies) and/or identities of
future interest holders become certain (vest) within RAP period?
 If no – invalid; that interest struck out
 If yes- valid
Step 4 – If RAP invalidates the future interest (struck out) – what are remaining
present & future interests?


Savings clause: used to avoid RAP problems/specifies backup plan
d. Conflicts Between Co-Owners (“Co-tenants”):

Principles- commonalities of ALL co-tenancies (tenancy in common and joint tenancies)
o Arrangements of property shared among multiple parties at 1 given time.
o Diff. shares of interest OK: Co-tenants (either JTs or TiCs) can own diff. fractional
share of proceeds from the asset. (ex. A owns 50%, B owns 10%, C owns 40% 
OK)
 Restriction on exclusion of fellow co-tenants: Co-tenants CANNOT exclude each
other, OR use or possess whole/portion of property exclusively. All co-tenants have
equal and undivided right to the whole property.
 Ouster:1 cotenant must necessarily exclude other cotenant from the property for ct.
to find 1 cotenant has ousted the other. Not enough for 1 co-tenant to just exclusively
use the commonly held property. (Gilmore)
o Ex. Gilmor - Held- Uncle DID oust niece, entitling her to damages, by
completely overgrazing their co-owned land, despite her efforts to negotiate/ask
42



him to stop (subtext: Coasian bargain). Thus, uncle necessarily excluded her
from property by effectively preventing her from pursuing grazing.
Sales of interests: BOTH sets of tenants can unilaterally sell interest to 3d party
Remedies for disputes: Partitions = ct. orders to dissolve co-ownership, granted
regardless of parties’ justification/fault. Gives co-tenants automatic right to
terminate cotenancy/exit at any time.
 A. partition by sale of entire property
 Preferred partition type for personal property and urban land,
which cannot practically be divided into parts thru partition in
kind
 Prioritizes objective value of land over owners’
subjective/idiosyncratic value
 B. partition in kind – phys. division of property between co-tenants
 preserves co-owner’s subjective value for property – esp. when
co-owner lives on the property
 Factors cts. consider in deciding upon partition method: [1]
Practicability of partition by sale, [2] equitable interests of parties
 Ex. Delphino – partition in kind =best method to preserve coowner’s subjective value of home & business on the land, esp.
when she (a) had exclusive & actual possession of her part of the
land (b) for a long time….even if partition by sale would be
more profitable. (subtext: Lockean/labor theory; equity )
Tenancy in common vs. Joint Tenancy
o A. Tenancy in common:
 *** no rights of survivorship for co-owners.** When owner dies, his
interest goes to his heirs, NOT co-owners.
 Ex 1- , C,D, E. own property as tenants in common. C dies and C has
heir. No rights of survivorship  C’s ownership interests goes to his
heirs.
 Ex 2 –Both C & D die, and both have heirs. Thus co-owners are now
C’s heir, D’s heir, and (still) E.
 Drafting need not specify “tenancy in common”- “To A & B” is suffic.
 Tenants CAN have diff interests- Ex. A can have life estate & B can have fee
simple
 Appropriate for non-intimate/familial relations
 Either tenant CAN unilaterally convey interest to 3d party
 Creditors- Property can be attached by creditors of each individual tenant
43
o
B. Joint tenants:
 **ARE rights of survivorship for co-owners
 Ex 1- C,D, E. own property as joint tenants. C’s interest disappears when he
dies, and co-owners B & D become full owners (co-owners’ heirs
irrelevant)
 Drafting MUST SPECIFY joint tenancy- “To A & B as joint tenants, w/
rights of survivorship” – must specify in drafting more than TiC.
 Restrictions- Interests must be created within “unities”
 1. Time- interests of both joint tenants must begin at same time
 2. Title- both joint tenants must have received interests by same
instrument/doc. (or act of averse possess.)
 3. Interest- joint tenants must have same type of interest (fee
simple, life estate, etc.) that lasts for same duration
 4. Possession – each J.T. must have right to possess the whole
property
 **If any unity “severed,” then the JT becomes a TiC.
 Does lease by 1 joint tenant sever joint tenancy? Cts. are split- some say yes,
some say no.
 Transferring joint tenancy- Each joint tenant can unilaterally transfer interest
while they are living (& thus may have his interest attached by creditors)
 This may sever unity of possession  turn interest into TiC
 ONLY APPROPRIATE FOR INTIMATE RELATIONSHIPS- committed
relationship or family business

e. Marital Interests
1. Marriage Dissolution: Death or Divorce Property split regimes:
o A. Community Property Jd.- (minority)
 Bright line/automatic rule - Upon divorce OR death, 50/50 split
in marital property = property acquired by effort of one or both
partners –
 Consent - Major decisions – sale of property, mortgage, require
consent of both spouses
 Presumption of community property – but property belonging to
spouses pre-marriage/sometimes bequests considered separate
property. However, such separate property can lose that
status/become community property if the property is sufficiently
comingled w/ marital assets
o B. Common Law Jd. (maj.)
44




Equitable standard, not bright-line- Marital property subject to
equitable division upon divorce, based on fairness/ circumstsneeds, expectations, contributions based on fair distribution of
property
 Fault – irrelevant in post-divorce property division
 Effect of intestacy- If someone dies w/o will, intestate, surviving
spouse takes all or most of deceased spouse’s property
 If 1 spouse dies with his own will, that spouse can make some
other disposition of property aside from leaving it to spouse.
2. Forced spousal share statutes
o if spouse dies w/o children, & w/ a will, but leaves property the spouseregardless of what will says, cts. presume spouse entitled to 1/3
o Policy: take care of gender inequity in marriage (women)
3. Is human capital of 1 spouse “marital property property” subject to
division upon divorce (ex. degrees)?
o Cts. are split.
o Obrien- Ct. reads NY statute defining marital property as “all property
acquired by either or both spouses during marriage” broadly to include
husband’s med school degree, which wife her career for / contributed to
by supporting husband during his studies
o Valuation issues: hard to measure value of human capital/intangible
assets b/c
 Hard to predict how successful spouse will be in given field
 Hard to extrapolate lifetime earnings of one spouse based on ave.
earnings of similarly situated person in the field
 Doesn’t take into account poss. contingencies affecting incomeWhat if surgeon breaks his hand?
 What if spouse wants to change to lower-paying career?
 **May incentivize high-earning spouse to not work hard /choose
less lucrative sub-field out of spite for ex-spouse
4. Should cts. enforce contractual relationships of non-married couples upon
dissolution of relationship? Marvin:
o Held: P/Mistress of Mr. Marvin did state a claim for breach of K
o Facts:
 P, Mr. Marvin’s mistress, lived w/ him; they behaved as a
married couple
 P alleges implied oral agreement that they would share equally in
property accumulated as a result of their efforts, individual and
 P said she agreed to give up her “lucrative career as entertainer”
to devote herself to Mr. Marvin as homemaker
o Reasoning: Ct. rejects “K is void b/c only consideration is sex” arg.
Express Ks between nonmarital Ks often comprise sex, but also include
other things partners give up/invest in relationship as consideration.
45
6. Entity Property
a. Entity Property Principles:
 Permit management of entityt resources to be separated from their
use and enjoyment
 Separation allows specialists to focus on managerial/governance
function, so use and enjoyment of property can be distributed among
larger group of people
b. Leases

1. Lease Principles
o Financing Device – doesn’t require long-term investment
o Risk-spreading device
o Allow for specialization: Ts specialize in using/enjoying/possessing individ.
units; LLs specializes in maintaining common areas
o Both property (numerus clausus) & K (customization) elements

2. Numerus clausus app.- fixed menu of lease options
o A. Term of Years
 Duration Fixed endpoint; Usually for 1 or more years
 Notice of termination?: NO. Neither landlord (LL) nor tenant (T)
required to give notice to the other before terminating LL/T
relationship
o B. Periodic Tenancy
 Duration: Automatically rolls over for stated period of time, usually
year-to-year ORmonth-to-month
 Ex. lease from year to year = periodic tenancy that automatically
rolls over 1 year at a time (also can be on month to month basis)
 Notice of termination?: YES. LL/T parties must give notice to the
other to terminate lease.
 A. If year-to-year [a] 6 mo. notice required at C.L…..[b]
but modified in many jds. to one month’s notice
 B. if month-to-month 1 mo. notice required
o
o
C. Tenancy at will
 Duration: Lasts only so long as both parties wish it to continue.
Either party can term. At any time for any reason
 Notice of termination?
 A. At C.L. – no notice was required
 B .Modern - Many jds. have statutes requiring notice equal
to period of time at which rent payments are made
 4. Ex. of tenant that violates numerus clausus/does not fit into any of
these fixed menu options for leases: “I lease to you this warehouse
for duration of the war.”
D. Tenancy at sufferance
 Situation where individ. who was once in rightful possession of
property holds over after lease has ended
46


Contrast w/ trespasser: Tenant at sufferance’s original entry was not
wrongful
LL’s remedy- LL free to evict tenant at sufferance using
 A. Forcible entry + detainer statutes; or
 B. Bringing action in ejectment

3. Doctrine of Constructive eviction (protects tenants)
o Policy: Protects tenants faced w/ intolerable conditions created by LL’s
breach of covenant to repair, provide heat, or control behavior of other
tenants
o Effects on Tenants’ duties: If breach of LL’s implied covenant of quiet
enjoyment actually prompts T to vacate premises  excuses T’s further rent
payments. (treated like actual eviction.)
o LL nonfeasance vs. misfeasance
o Constructive eviction –
 A. misfeasance- if LL’s breach is sufficiently serious to cause
reasonable T to vacate T excused from further rent payment
 B. Nonfeasance Ex. Blackett- by failing to control problem of noisy club
tenants disturbing residential tenants, LL constructively
evicted residential tenants by violating covenant of quiet
enjoyment. Lease had express cl. that lounge activities had
to be conducted so as not to disturb residents.
 T’s success hinges on whether LL violated express cl. in
lease through his nonfeasance/failure to act

4. Doctrine of Surrender (protects tenants)
o T abandons property by (1) vacating, (2) w/ no intention to ever return, and
(3) stop paying rent = implied “offer” to surrender leasehold estate
o L implicitly “accepts” surrender of leasehold estate:
 …By responding to T’s offer w/ action inconsistent w/ the T’s
continuing right to the leasehold interest
 Ex. LL taking T1’s proffered keys
 Ex. LL rentering T1’s unit & reletting to T2
o Effect on T’s rights/ duties L’s acceptances releases T1 from any remaining lease obligations
implied as a matter of law
 When ct. finds L has “ accepted” T’s surrender, then T liable for full
amt. of rent owed up to the moment of acceptance, but is off the
hook thereafter
o Ex. In re Kerr- Absent express provision in lease authorizing L to reenter &
relet T1’s unit, L’s creation of new lease w/ T2 = implicit acceptance of T1’s
surrender of T1’s lease/ releasing of T1 for rent liability
o Effect on T of Reenter & relet cl. (protects LL)T still responsible for unpaid
rent (minority approach)

5. Modern Bilateral K-law Lease Model
o A. Options for Ts if LL materially breaches express lease terms?
(Medico-Dental)
47

o
1. Remain in possess. + sue for damages from lost profits by reason
of breach – Paradine
 2. Rescind lease, claim material breach rising to level of total breach,
& deny any further obligation to pay – Medico Dental
 3. Rescind lease, claim material breach, deny any further oblig. to
pay, AND sue for damages
o B. Implied Warrantees of Habitability (IWHs) in Residential Leases
 **Ts cannot waive IWH!!
 Policy:
 Pro-tenant - Protects tenants from bad housing conditions in
violation of local health codes;
 Pro- consumer- Narrows info. gaps between T (buyer) and
LL (seller) considering unequal bargaining power
 Remedies for T if L violates Implied Warr. of Habitability in
residential lease (IWH) (Javins)
 1. Refuse to pay rent
 2. Sue L for damages for breach of IWH
 3. Sue for spec. performance forcing L to bring property up to
code, in compliance w/ IWH
 4. Sue for damages = diminution in unit’s rental value since L’s
breach of IWH; then pay rent into escrow acct.
C. LL’s Duty to Mitigate Dam’s (K concept)
 LL must make effort to mitigate dam’s of T’s breaches by reasonably
trying to find new T.
 Factors - Did LL fulfill burden to take reasonable steps to mitig.
damages?  (1) Did LL show apt. to any new tenants? (2) Did LL
advertise apt. vancacy? (3) Did he LL at least attempt to show apt. to
suitable replacement Ts, who were rejected?
 (Deducted from LL’s recovery)
c.
Transfers of Leasehold Interests

Leasehold Transfer- Principles
o Leases generally like bilateral Ks- parties can incl. any promises they want
(customizable)
o Exception : If LL or T transfers their interest to 3d party, shift to standardization  T
can only transfer assignment or sub-lease

1. Orig. Tenant’s (T1’s) right to assign or sub-lease
o A. If orig. lease silent, then T1 can assign or sublease w/o LL’s consent
o B. If orig. lease expressly forbids T1 to transfer, then it’s enforceable against T.
o C. Can LL arbitrary refuse to consent to T1’s proposed assignment or sublease?
 I. Maj: YES.
 II. Minority: LL can refuse, but ONLY IF it’s based on objectively
“commercially reasonable” factors; “*
 *Ex. if proposed assignee/sublessee insolvent/has bad credit;
compatibility of proposed subtenant’s use w/ that of other
tenants,needs to alter property to accommodate proposed subtenant’s use)
48


*invalid reasons: refusing consent to extract higher rent; racial
prejudice
2. Sub-Leases vs. Assignments
o A. Assignment:
 Tenant transfers entire remaining interest in lease to a 3d party
 New tenant/Assignee “steps into the shoes” of T1/the assigner
 New tenant/Assignee directly liable to orig. LL  must perform all
obligations of orig. lease that “touch and concern the land” (ex. pay rent)
o B. Sub-Lease
 creates new tenancy between sublessor (T1) and sublessee;
 Sub-lessor = both T1 to main LL and a LL to sub-lessee
o C. How to know if parties created assignment or sub-lease?
 I. Maj/C.L.: (Bright-line)
 Does prime tenant retain a reversion (even if only of one day at the
end of the prime lease) in the lease? If yes sub-lease
 Does instrument purports to transfer T’s estate for the entire
remainder of the term? If yes assignment
 II. Min/modern: (Fuzzy/Subj.)
The intention of the parties governs
whether instrument = assignment or sub-lease
o D. LL’s claims against Sublessee for Delinquent Rent
 I. Default: Eviction
 II. Alt: If sublessee agreed to assume terms of orig. lease, then LL may be
able to bring suit for damages for sublessee’s breach of orig. lease terms.
o E. LL’s claims against Assignee for Delinquent Rent
 I. Evict; OR
 II. Damages claim for breach of orig. lease

d. Cooperatives and Condos
1. Coop v. Condo
o A. Coop:
 corporation; shares distributed to members; then corp. rents units to
members , who are considered tenants
 LL/T statutes still apply
 No single co-op owner internalizes costs of eviction; it’s absorbed by
coop corp. / distributed evenly (in contrast w/ LL)
 B. Condo: each unit owned by individual owners.

2. Benefits of community living entities –Address collective action problems
 Board regulates who your neighbors are
 Board regulates private community rules – Deed , charter, or other legal
docs govern community
 Costs of collective activities (ex. renovation to enhance value of the
property) absorbed collectively, so burden doesn’t fall on 1 owner
 Ex 1 Condos. Nahrstedt – Condo. rules banning pets upheld as providing
reasonable sorting functions- prospective condo. owners who don’t like
given condo’s rules can find another condo that suits their needs.
49


Ex. 2 Coops , 40 West 67th Street– By what standard should cts. review
coop’s decision to evict disruptive member?  Objective test- has coop
acted w/ business reasonableness? (Held: Yes, given egregiousness of
member’s disruption)
3. Contrasts between renter & condo owner
 A. Renter: Econ. stakes are lower b/c rental = short-term commitment;
thus, ct. less likely to allocate to him risks of not paying for inspection
of premises, or for legal review of K ; (no incentive to make such longterm investments; matter how bad it is, it’s a short-term arrangement)
 B. Condo Owner: , econ stakes higher; thus, ct. more inclined to allocate
risk to him of getting unit inspected, having K inspected
e. Trusts

1. How Trusts Work:
o I. Splits fee simple between trustee (who has legal title MANAGES resource) and
beneficiary (who owns equitable title long-run USE/ ENJOYMENT/CONSUMPTION of
the trust)
 A. Settlor (usually parent ) puts person in charge of managing large amt. of assets (
trustee) to regulate someone else’s (usually kid’s – beneficiary’s) responsible use of
asset
 B. Trustee
 Person w/ powers of asset management & control
 Has legal title
 “gatekeeper” of asset / regulates beneficiary’s use
 C. Beneficiary
 Person who benefits from asset
 D. Trust = $; Corpus aka res = principal
o
o
o
II. When are trusts useful? transmitting wealth within families; managing charitable
foundations/nonprofits; organizing pension funds
III. Creditors’ access  They can only reach beneficiary’s assets when he receives cash, but
not before that point (Broadway Nat’l Bank)
IV. Fidicuary duty Trustee Owes Beneficiaries
 If trustees have interest in transaction with the estate in their other capacity as
individuals, they must not engage in the transaction unless they can prove they don’t
have conflict of interest.
 Ex. Rothko
 Trustees sell Rothko’s valuable paintings to gallery
 1 Trustee board of the gallery – conflict of interests b/c while he’s trustee,
he’s also getting fees from gallery
50


o
Another trustee also had conflict b/c he was also artist under K w/ the
gallery that was conducting business with the estate.
Held: All 3 trustees liable to trust for damages
V. Cy Pres Doctrine- What happens to trust admin. upon changed circumsts. not anticipated
by settlor?
 Permits cts. to revise trusts in light of changed circumsts. long after settlor dies, to
put $ to better use  Paradigm  Charitable trusts lasts long time. Settlor leaves $ in trust to create foundation
to support polio victims
 Settlor dies. Many yrs. later, researchers develop polio vaccine, meaning
there are much fewer polio victims than when settlor created trust.
 Issue: Can trustee get cts. to modify trusts to devote funds to some other
purpose?
 **Trad. Am. rule:
 A. Specific charitable purpose must be impossible or illegal; AND
 B. Instrument of trust must reflect a “general charitable intent” in addition to
the spec. purpose
 **Mod. American rule: RST of Law 3d, Trusts- Should be available when
carrying out the original trust would be “wasteful”
7. Title Records and Transfer




a. Nemo dat
“no one can give that which he does not have.”
Person receiving property only receives what previous ownr had and nothing more.
Ex. If A transfers x property to B, and then later to C…
o B has the property right.
o C has nothing b/c A had nothing to transfer to C after A’s transfer to B.
Kunstsammlungen zu Weimar – nemo dat applied to good-faith purchasers of stolen goods.
o Facts:
 Grand Duke transferred paintings  Thuringia (state in Weimar Rep.)
 Grand Duke hides paintings in their castle during WWII
 Post-WWII, USSR take over E. Germany – Thuringia becomes part of Soviet E. E.
Germans est. museum & lay claim to the paintings
 American serviceman in E. Germany steals aintings, then sells them to D in Brooklyn
o Held: Even though D/American buyer purchased paintings in good faith, doesn’t matter b/c
American soldier stole the paintings; he never had title to them anyway, thus he had no
property right to transfer to the buyer.
o PRINCIPLE*
 thief (who has void title) can’t transfer good title to even a bona fide purchaser for
value (aka, good faith purchaser)
 Public policy: deters stealing
b. Good faith Purchaser statutes (UCC)- EXCEPTION to nemo
dat doctrine.


RARE circumsts. when good faith purchaser for value can acquire title, even though transferor/seller
has “voidable title” (UCC)
Paradigm-
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o
o
o
A sells to B, but transaction is flawed (Ex. B’s check bounces, or A defrauds B)
B, whose title is voidable (questionable) sells good to C, a good faith purchaser for value.
C will get title even though transaction between A and B flawed.

Kotis: GFPVs of personal property
o Issue: Who has better title: orig. seller of good to buyer w/ voidable title (whose check
bounced), or good-faith-purchaser-for-value who later bought watch from 1st buyer w/
voidable title?
o Concl: Good faith purchaser for value has better title.
o Facts
 Nolin Jewelry sells Rolex to Sitton (costs $10K)
 Sitton then sells Rolex to Kotis for $3-4K .
 Sitton’s (forged) check bounces.
o Principles:
 A purchaser, even a “ne’er do well” purchaser, who has voidable title, may transfer
more than he has [valid title to the watch] to a good faith purchaser for value.
  exception to nemo dat.
  Policy:
o bright-line, all-or-nothing rule; fosters clarity & predictability
o encourages merchants, sophisticated business people, to be careful
before they sell to someone with questionable finances
 good faith purchaser for value (GFPV):
 “good faith:”
o honesty in the conduct or transaction concerned
o Ex. if price “too good to be true”--> constructive notice to buyer it’s
stolen
 “for value” – purchaser must buy good from person w/ voidable title for
value (for consideration); transfer couldn’t have been gratuitous (as a gift)

GFPVs of land
o Approach A - Hauck
 Original owner is responsible for his own negligence in succumbing to fraud (here,
where a fraudster tricked orig. owner into signing docs. that turn out to be a deed).
 Thus GFPV’s title trumps original owner’s
o Approach B- equitable estoppel
 Allow subsequent GFPV to prove that orig. owner was negligent, which estops
owner from denying GFPV’s title.
 If owner’s negl. led to justified reliance by GFPV, then GFPV prevails.
 Allows GFPV to win, even though deed was void.