Brendan O’Callaghan
10/9/17
Property Outline 2017
Intro Cases
Pierson v. Post
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Property in such animals (ferae naturae) is acquired by occupancy only
Pursuit alone vests no right in the huntsman
Animal must be mortally wounded whilst pursuit is still being engaged
Capturing by nets and toils or traps counts as it has deprived the animal from
natural liberty
Labor Theory?
Court ready to confine possession or occupancy of beasts ferae naturae within
limits of authors Puffndorf and Barbeyrac as cited
Mere Pursuit gave Post no right to the fox, but he became the property of Pierson
who intercepted and killed him
Mortally wounding while not abandoning pursuit may be deemed possession
since the intention of the huntsman is appropriating the animal to his individual
use and has deprived the animal of his natural liberty and brought him within
certain control
Dissent (Livingston, J)
o Utilitarian Theory
 Foxes being killed and hunted is in the best interest of the
community
o Labor Theory
 Why would a man labor throughout the day to hunt the fox if one
can simply swoop in while the hunter is in pursuit, intercept and
kill the fox, and reap the rewards not worked for
o Historical outdated reading should not force us to fade with the time
o Agree with Barbeyrac property in animals ferae naturae may be
acquired without touch if the pursuer be in reach of have a reasonable
prospect of taking
Notes
o Great example of first possession approach
 Both sides agree fox belongs by first to take possession of the
animal
 Rule called rule of capture
White v. Samsung Electronics America, Inc
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Right of Publicity
o Eastwood v. Superior Court
 The common law right of publicity cause of action “may be
pleaded by alleging (1) the defendants use of the plaintiff’s identity
(2) the appropriation of plaintiffs name or likeness to defendants
advantage, commercially or otherwise (3) lack of consent; and (4)
resulting injury
 District court said White failed to satisfy 2nd prong
o Prosserrecognized that the right to publicity cases involved either name
appropriation and picture or other likeness appropriation
 Noted that the right of publicity is not limited to the appropriation
of name or likeness
The above cases teach the right of publicity does not require that appropriations of
identity be accomplished through particular means to be actionable
The defendants in each case (although sneaky about it) through their actions
directly implicated the commercial interests which the right of publicity is
designed to protect
Not important how the defendant appropriated the plaintiff’s identity but whether
the defendant has done so
Dissent Kozinski
o Overprotecting intellectual property is as harmful as under protecting it
o Nothing Today is genuinely new
o Overprotection stifles the very creative forces its supposed to nurture
o Panels opinion a case of overprotection’s
 Simply to evoke the celebrities image in the public mind is now a
tort?
Notes
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Although White is Federal case it relies on state law to define right of publicity
o Under federal system state law generally determines what constitutes
property
o States often differ in definitions
o Half states don't recognize right of publicity as property
What is Property?
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In law we define property as rights among people concerning things
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Property often described as a bundle of things or a bundle of sticks
o Most important sticks
 Right to transfer
 Right to exclude
 Right to use
 Right to destroy
Idea that property consists of rights has important consequences
o 4 key implications
 Property rights are defined by government
 A holds property rights in his farm only if and to the extent
that they are recognized by the government
 Property rights are not absolute
 They are relative
 B’s right to use her farm to raise pigs may interfere with
C’s right to use his adjacent land as a residence
 Property rights of one person can infringe on, and interfere
with both the property and personal rights of another
 Property rights can be divided
 May be split among multiple holders
 Property rights evolve as law changes
 Stability of title core concept that property rights should
be certain and predictable
o Property rights do evolve slowly over time with
changing economic, tech, and social conditions
gradually shape and reshape the law
Right to Transfer
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Right to transfer property—called alienability— as a general rule states that an
owner may freely transfer or alienate any of her property to anyone
o Scope sometimes limited for reasons of public policy
 Law restricts who can transfer or obtain property; an insane person
can do neither
 Law usually regulates what property can be transferred
 Cannot transfer rights such as military pensions
 Law usually regulates how property may be transferred in order to
avoid fraud, uncertainty, or other problems
Johnson v. M’Intosh (Supreme Court of the United States, 1823 (Chief
Justice Marshall)
o Title by conquest is acquired and maintained by force; conqueror
prescribes its limits
 General rule that the conquered shall not be wantonly oppressed
but incorporated with the victorious nation and become subjects or
citizens until the distinction becomes lost in time making for one
people
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Where this is practical, humanity demands and wise policy
requires that the rights of the conquered property should remain
unimpaired
 Tribes of Indians were fierce savages, whose occupation
was war making this impossible
o The Indian inhabitants are to be considered merely as occupants, to be
protected while in peace, in the possession of their lands, but to be deemed
incapable of transferring the absolute title to others
Moore v. Regents of the University of California (S.C of California, 1991
(Panelli, J))
o (1) A physician has a fiduciary duty to disclose all material personal
interests that may influence her professional judgment before securing a
patient’s informed consent to medical treatment. (2) Once cells leave a
patient’s body, they are no longer that patient’s property.
 A physician must disclose all personal interests in a medical
procedure that may influence her professional judgment before
securing the patient’s informed consent.
 A competent adult has the right to decide whether or not to receive
medical treatment.
 A physician must secure the patient’s informed consent to
treatment, and the physician is under a fiduciary duty to give the
patient all information material to that decision.
 Thus, it is necessary that a physician disclose any personal
interests in the treatment that may influence her
professional judgment.
 A reasonable patient would want to know that her doctor
has an unrelated research or financial interest in her
treatment.
 Consent is thus ineffective if the physician fails to make
these disclosures, and the physician may be subject to
liability for providing medical treatment without consent or
breach of duty.
 Physicians are free to conduct research, but the goals of
research may conflict with patient care.
o Dissent, Mosk
 Concept of property is often said to refer too a “bundle of rights”
that may be exercised with respect to that object—principally the
rights to possess the property; to use to property, to exclude others
from the property, and to dispose of the property by sale or by gift
 Our society values fundamental fairness in dealings between its
members, and condemns the unjust enrichment of any member at
the expense of another
 Contrary to popular misconception, it is not true that human organs
and blood cannot be sold
The Right To Exclude
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Owner has a broad right to exclude any other person from his property
Supreme Court has characterized the right to exclude “as one of the most essential
stick” in the bundle
A land owners right to exclude is implemented through the tort of trespass
o U.S inherited this absolutist view of the right to exclude—along with most
of our property law—from England in the 1700’s
o Under English common law, an intentional and unprivileged entry onto
land in the possession of another person was a trespass
Restatement (2) follows the same approach
o S158
 One is subject to liability for trespass, irrespective of whether he
thereby causes any harm to any legally protected interest of the
other, if he intentionally . . . enters land in the possession of the
other, or causes a thing or a 3rd person to do so
o In this context, the defendant acts intentionally if he voluntarily enters
onto the land
 Not necessary to prove that he had subjective intent to trespass or
that he otherwise acted in bad faith
Entry made under a privilege is not trespass
o Most common privilege is consent
o May also rise out of necessity
 Police officer may enter S’s land in hot pursuit of a fleeing thief
Jacque v. Steenberg Homes, Inc (Supreme Court Wisconsin, 1997 (William
A. Bablitch, J))
o The individual has a strong interest in excluding trespassers from his or
her land. Although only nominal damages were awarded to the Jacques,
Steenberg’s intention trespass caused actual harm.
o McWilliams v. Bragg 1854
 The court established punitive damages, allowing the assessment
of “damages as punishment to the defendant for the purpose of
making an example”
o Under Wisconsin law, a jury has discretion to award punitive damages for
intentional trespasses, even if compensatory damages were not warranted
and only nominal damages were awarded.
 Punitive damages may, at the discretion of the jury, be awarded
when there are only nominal and no compensatory damages.
 The general rule in Wisconsin is that punitive damages are
unavailable if unsupported by compensatory damages. Barnard v.
Cohen, 165 Wis. 417, 162 N.W.2d 480 (1917).
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The rationale for this is simply that society’s interest in
deterring unlawful but unharmful conduct is not great
enough to warrant punitive damages.
 Nevertheless, the question of whether punitive damages are
available when supported by a nominal damage award for
intentional trespass has not been answered.
 The actual harm here is not in any physical damage to the land, but
in the denial of the owner's legal right to exclude all others.
 The right to exclude is "one of the most essential sticks in
the bundle of rights that are commonly characterized as
property." Dolan v. City of Tigard, 512 U.S. 374 (1994).
 A right is illusory if it is unenforceable.
 Further, repeated trespasses could actually threaten the
individual’s ownership by giving the trespasser rights by
prescription or adverse possession.
o An exception to Barnard is warranted in cases of
intentional trespass.
o Punitive damages serve as a deterrent to illegal
activity where the damages are greater than the
profit to be gained by that misconduct
State v. Shack (Supreme Court of NJ, 1971 (Weintraub,C.J))
o The ownership of real property does not include the right to refuse access
to individuals providing government services to workers who are housed
on the property.
o Title to real property cannot include dominion over destiny of persons the
owner permits to come upon the premises
o Their well being must remain the paramount concern of a system of law
o It has long been true that necessity, private or public, may justify entry
upon the lands of another
o Regarding Powell, the process involves not only the accommodation
between the right of the owner and the interests of the general public in his
use of this property, but involves also an accommodation between the
right of the owner and the right of individuals who are parties with him in
consensual transactions relating to the use of the property
o This court sees no legitimate need for a right in the farmer to deny the
worker the opportunity for aid available from federal, State, or local
services, or from recognized charitable groups seeking to assist him
o Mindful of the owners interests in his and his workers security
 He may reasonably ask a visitor to identify himself and state the
general purpose for his visit
 The rights of the workers are far too fundamental to be denied on
the basis of an interest in real property
The Right To Use
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What is the scope of an owners right to use land?
o Traditionally, a landowner had the absolute right to use his property in any
way he wished—as long as he did not harm the rights of others
o In practice, the principal limitation on an owner’s right to use was the
common law doctrine of nuisance
o Since the early 20th century, statutes and local ordinances have imposed
zoning and other use restrictions on almost all land in the United States
o Concept that an owner was entitled to determine how to use his land likely
began as an assumption, evolved into a custom, and eventually emerged as
a common law rule
o From a utilitarian prospective, it is fair to assume the owner of the land in
an agricultural society knows best how to use it productively for the
benefit of all
o Rideout v. Knox (Mass 1889)
 It is plain that the right to use property for the sole purpose of
injuring others is not one of the immediate rights of ownership. It
is not a right for the sake of which property is recognized by law
Sundowner, Inc. v. King (Supreme Court of Idaho 1972, Shepard J)
o Under common law, no property owner has the right to erect and maintain
a structure, not for any purpose useful to himself, but for the sole purpose
of damaging a neighbor.
 Under the common law, beginning with Burke v. Smith, 69 Mich.
380 (1888), property owners may not make malicious use of their
property solely to injure their neighbors.
 A property owner may be ordered to abate a structure built not for
her own benefit, profit, or use, but purely for the purpose of
diminishing the use or value of a neighbor’s property.
o English Rule
 Followed by most 19th century courts
 The erecting and maintenance of a spite fence was not an
actionable wrong
 Founded on the premise that a property owner has an absolute right
to use his property in any manner he desires
o Modern American Rule
 One may not erect a structure for the sole purpose of annoying his
neighbor
 Many courts hold that a spite fence which serves no useful
purpose may give rise to an action for both injunctive relief
and damages
o Burke v. Smith Mich. 1888
 Applied the maxim sic utere tuo ut alienum non laedas
 No man has a legal right to make a malicious use of his property
 Erected without right and for malicious purpose
Prah v. Maretti (Supreme Court of Wisconsin 1982, Abrahmson, J)
o Private nuisance law is applicable in disputes over access to sunlight.
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In cases involving access to sunlight, private nuisance law is a
claim upon which relief can be granted.
 The court finds that private nuisance law is flexible enough to
protect both a landowner’s interest in access to sunlight and an
adjoining landowner’s right to build on his property.
 This is the case because the development of land is increasingly
regulated for the benefit of society and also because there is now
an increased societal emphasis on the use of solar energy.
o Restatement (2) Torts sec. 822, 826, 829
 Private Nuisance reasonable use rule The landowner is subject
to liability if his or her interference with the flow of surface waters
unreasonably invades a neighbors interest in the use and enjoyment
of land
o Courts should not implement obsolete policies that have lost their vigor
over the course of years
 Law of private nuisance is better suited to resolve landowners
disputes that a rigid rule that does not recognize a landowners
interest in access to sunlight
o Dissent, Callow
 Failed to convince the policies mentioned are obsolete
 Landowners right to use his property is a fundamental precept of a
free society
 Right of a property owner to lawful enjoyment of his property
should be vigorously protected
 Solar energy for home heating is at this time sparingly used
The Right to Destroy
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Eyerman v. Mercantile Trust Co. (Court of Appeals Missouri 1975, Rendlen,
J)
o When a landowner attempts to compel his successor in interest to do to the
land something against public policy, a court may deem the condition
void.
 Although a landowner has very few restraints on what he or she
may do with the land while living, when the owner attempts to
compel his successor in interest to do what is against public policy,
a court may deem the condition void.
 When a person is living, he or she is often restrained by selfinterest from destroying personal property or the person’s own
land.
 Upon a person’s death, however, there is no such restraint
and it may be proper for a court to step in.
o A well-ordered society cannot tolerate the waste and destruction of
resources when such acts directly affect important interests of other
members of society
o Dissent, Clemons
 Majority opinion goes far beyond the public-policy argument
briefed by plaintiffs
 Suggests that the court may declare certain land uses,
which are not illegal to be in violation of the City’s public
policy
 Sympathies should not so interfere with our considered legal
judgment as to create a questionable legal precedent
Summary of Ch. 1
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Theories of Property
o First possession
o Labor
o Utilitarian
 Particularly powerful influence in recent decades
o Civic Republican
o Personhood
Legal Positivism
o Property exists only to the extent that it is recognized by government
Reasons for Property Rights
o Under utilitarian theory private property benefits all of society
Right to Transfer
o Owner’s right to transfer is sometimes limited for public policy reasons
o Law regulates what can be transferred, how transfers are made, and who
can transfer or obtain property
Right to Exclude
o Generally protects an owner’s right to exclude others from his property,
subject to privileges such as consent and necessity
Right to Use
o Normally entitled to use property as one wishes, as long as the usage does
not injure the rights of others
 Spite fence and nuisance doctrines help define the limits of the
right to use
Right to Destroy
o Scope is unclear
o In practice, the law rarely intervenes to prevent destruction
o Concern arises when an owner seeks o destroy property that has
substantial value to society, and some courts have limited this right
Chapter 2: Owning Real Property
Notes
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Real property consists of rights in land and things attached to land, such as
buildings, fences, and trees
Personal property refers to rights in movable items (such as chairs, pens, and
computers (and intangible things (such as patents and shares of stock).
Central challenge in American property law is striking the balance between the
rights of the owner and the interests of society in general
Adverse Possession
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Easily the most controversial doctrine in property law
If A occupies B’s land for a long enough period while meeting certain conditions,
A acquires title to the land without B’s consent
Four justifications
o Preventing frivolous claims
o Correcting title defects
o Encourage development
 Reallocates title from the idle owner to the industrious squatter,
thus promoting productive use of the land
o Protecting personhood
 Supreme Court Justice Oliver Wendell Holmes
 A thing which you have enjoyed and used as your own for
a long time . . . takes root in your being and cannot be torn
away without you resenting the act”
Elements
o Typically the period for adverse possession is established by statute, while
the other elements stem from case law
o The amount of possession required varies according to the character,
nature, and location of the particular land
o Typical statute requires:
 Actual possession
 Exclusive possession
 Open and notorious possession
 Adverse and hostile possession
 Continuous possession
 For the statutory period
Gurwit v. Kannatzer (Court of appeals Missouri 1990, Per Curim)
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Under Missouri law, a person whose possession of a property is hostile, actual,
open and notorious, exclusive, and continuous for the statutory period of 10 years
may gain title to that property by adverse possession.
Under Missouri law, a person may gain title to a property by adverse possession
if, for the statutory period of 10 years, she meets the following requirements.
o First, her possession during that time must be hostile, meaning she must
intend to possess, occupy, control, and exercise dominion over the
property.
o Second, she must actually possess, occupy, control, and exercise dominion
over the property.
o Third, her possession must be open and notorious, meaning easily visible
to those with adverse claims.
o Fourth, her possession must be exclusive, meaning for herself and not for
another person.
o Fifth, her possession must be continuous. The extent of continuity required
will vary with the nature of the property.
Van Valkenburgh v. Lutz (Court of appeals New York 1952, Dye, J)
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A party takes adverse possession of a property owned by another when he takes
actual possession of it, encloses it and/or makes improvements to it, for statutory
period of years.
A person may not claim adverse possession of real property that he knows he does
not own by using and erecting structures on the property
Wherein the defendant had the opportunity to declare his hostility and assert his
rights against the true owner, he voluntarily chose to concede that the plaintiffs’
legal title conferred actual ownership entitling them to the possession of these and
other promises in order to provide a basis for establishing defendants right to an
easement by adverse possession
The proof fails to establish actual occupation for such a time or in such a manor as
to establish title by adverse possession
Dissent; Fuld
o The fact that Lutz knew he did not own the land is irrelevant because,
despite that knowledge, he took steps to exert control over the property as
his own.
 Lutz’s assertion in the earlier litigation that Van Valkenburgh
“owned” the land is irrelevant because Lutz’s title in the land had
vested well before then, and it cannot be disclaimed without
following legal formalities.
Adverse Possessor State of Mind
Fulkerson v. Van Buren (Court of appeals Arkansas 1998, Jennings, J)
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Under Arkansas law, a person who does not demonstrate a clear, distinct, and
unequivocal intention to hold a property adversely for the length of the statutory
period cannot take title by adverse possession.
Under Arkansas law, mere possession of real estate for the statutory period is
insufficient to gain title by adverse possession.
o Instead, the possession must be adverse or hostile, meaning under a claim
of right, title, or ownership in conflict with the right of the holder of legal
title.
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o Possession is presumed to be in conformity with the superior right of the
holder of legal title, and will not be considered adverse absent a clear,
distinct, and unequivocal intention to hold the real estate adversely
Dissent; Meads
o The Progressive Church demonstrated sufficient adverse or hostile intent
by openly occupying, using, and improving the parcel for its own
purposes, refusing to comply with Fulkerson’s demand to vacate the
parcel, and refusing to negotiate with Fulkerson.
Tioga Coal Co. v. Supermarkets General Corp. (Supreme Court of Penn 1988,
Flaherty, J)
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Subjective hostility is not required to establish adverse possession.
Adverse possession is established by possession of land that is open, notorious,
exclusive, hostile, and continuous for a statutory period.
The element of hostility is not about ill will or malice, but it does imply intent to
hold title against the record titleholder.
o However, the possessor does not need to subjectively intend to hold title
against the true owner.
 Hostility may be implied as long as all the other elements of
adverse possession are met.
o As a result, adverse possession may be established even if the possessor
believes that there is no other claim to the subject property or that he is
himself the true owner.
o What matters are the physical facts and whether the circumstances would
notify the true owner that another is claiming ownership of the land.
 It is inconceivable that, if an adverse possessor actually possesses
land openly, notoriously, exclusively, and continuously, such
possession is not hostile to the true owner and to everyone,
regardless of the possessor’s state of mind.
Dissent
o McDermott, J
 Recorded land titles should lie peacefully in their owners unless
one who seeks to own them intends to own them by exercising
exclusive, open, notorious, and hostile possession against the
record title owner and not somebody else
Proving Adverse Possession
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Adverse possession claims normally arise in 2 procedural situations
o (1) The adverse possessor either brings a quiet title action to confirm his
title (as in Gurwit)
o (2) Raises the doctrine as a defense to an owner’s lawsuit to recover
possession (as in Van Valkenburgh)
Judicial action is not necessary for an adverse possessor to obtain title
Howard v. Kunto
o Adverse possession occurs when a person takes actual possession of
property that is uninterrupted, open and notorious, hostile and exclusive,
under a claim of right for a statutorily specified period of time.
 For adverse possession purposes, possession is sufficient when the
property is used in a manner that is ordinary and natural given the
nature of the property.
 In meeting the time period requirement for adverse possession,
successive owners of a property may add their occupancy times
together where they share privity in the ownership interest.
Airspace Rights
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United States v. Causby (1946)
o Property is taken within the meaning of the Fifth Amendment by a direct
and immediate interference with the enjoyment and use of private land
that renders it uninhabitable.
 Congress has declared that the air is a public highway.
 Were it not, it would seriously interfere with control and
development in the public interest.
 However, when use of the air renders one’s property
uninhabitable, there is a compensable taking under the Fifth
Amendment, the value of which is measured by the
owner’s loss, rather than by the taker’s gain.
 If a landowner is to have “full enjoyment” of his land, “he
must have exclusive control of the immediate reaches of
the enveloping atmosphere.”
 Generally, flights over private land do not constitute a
taking, unless they are so low and frequent that they cause
“a direct and immediate interference with the enjoyment
and use of the land.”
Subsurface Rights
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Chance v. BP Chemical, Inc (Supreme Court Ohio 1996, Resnick, J)
o Under Ohio law, a real property owner will not prevail on a trespass claim
where the trespass alleged is an invasion of subsurface property, and no
physical damage or actual interference with the reasonable and foreseeable
use of the property has been demonstrated.
 Under Ohio law, real property owners do not possess absolute
rights to the subsurface of their real property extending indefinitely
to the core of the earth; just as they do not possess absolute rights
to the air above their real property extending indefinitely into outer
space.
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Instead, real property owners have the right to exclude invasions
that interfere with their reasonable and foreseeable use of the
subsurface property.
Water Law
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Sipriano v. Great Spring Waters of America, Inc (Supreme Court of Texas
1999)
o Absent malice or willful waste, landowners may take all the water under
their land without liability to their neighbors.
 Absent malice or willful waste, landowners may take all the water
under their land without liability to their neighbors, even if it
negatively affects the neighbors’ ability to use the water under
their own land.
 This rule, known as the rule of capture, originated from English
common law and was adopted in this state in 1904.
 Texas is the only state that currently follows this rule.
 Nevertheless, the Texas constitution charges the legislature
with the duty to preserve and conserve the natural resources
of this state.
 Thus water regulation is fundamentally a legislative
function.
Chapter 3 Owning Personal Property
Rule of Capture
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State v. Shaw (Supreme Court Ohio 1902)
o Stealing fish safely secured and confined can be larceny, even if it was not
absolutely impossible for the fish to escape.
 While fish are ferae naturae (wild animals) and stealing them is
not larceny while they are at large, once an individual has pursued,
caught, and confined the fish securely, stealing the fish can be
larceny.
 It need not be absolutely impossible for the fish to escape.
 It is sufficient if it is practically impossible for them to escape.
Popov v. Hayahsi (Supreme Court of Cali)
o When a person completes a significant portion of the steps to achieve
possession of an item, but is thwarted due to the unlawful conduct of
another, that person is entitled to a pre-possessory interest of the item.
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When a person completes a significant portion of the steps to
achieve possession of an item, but is thwarted due to the unlawful
conduct of another, that person is entitled to a pre-possessory
interest of the item.
Finders
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Armory v. Delamirie (Kings Bench 1722)
o A person who finds a piece of chattel has a possessory property interest in
the chattel, which may be enforced against anyone except the true owner
of the chattel.
Hannah v. Peel
o A finder of lost chattel on another’s property has rights to that chattel
superior to the rights of the property owner.
 The owner of land possesses anything attached to or under the
surface of the land, but not necessarily things lying on top.
 The general rule is that the finder of lost property has better claim
to it than anyone but the true owner. Armory v. Delamirie, 1 Str.
505 (1722).
 The law of who takes between a finder of property and the
owner of the land where the property was found, however,
remains unsettled.
McAvoy v. Medina (Supreme Judicial Court of Mass, 1866)
o One who finds lost property has possessory rights to it against everyone
except its true owner.
o The simple act of finding misplaced property in a store does not give the
plaintiff the right to take it and claim ownership; it was the defendant’s
duty to hold onto it in case the true owner returned.
 The difference between this case and Bridges v. Hawkesworth, 21
LJQB 75 (1851) is that the notes in Bridges were accidentally
dropped, whereas the pocketbook in this case was deliberately
placed on the table, though the owner neglected to retrieve it.
 Putting an item in a particular location and forgetting to pick it
back up is not the same as losing the item.
Haslem v. Lockwood (Supreme Court of Errors of Connecticut, 1871)
o Manure left by travelers’ horses on a public highway and gathered into
heaps by an individual is the personal property of that individual, and not
the real property of the municipality.
 While manure from animals on a parcel of real property is
considered part of that real property, manure from animals ridden

by travelers on the public highway can be gathered by passing
individuals and become their personal property.
Manure from animals on a farm or other parcel of real property can
benefit the owner of that property, while manure on a public
highway is a detriment to the public
Law of Shipwrecks

Benjamin v. Lindner Aviation, Inc (Supreme Court of Iowa, 1995)
o Under the common law, property is mislaid when it is intentionally placed
or concealed by an owner and later forgotten, and the property belongs to
the owner of the premises where the property is found.
o Property that is intentionally concealed by the owner, who later forgets
about it, is mislaid and belongs to the owner of the premises where it is
found.
o Under the common law, found property is (1) abandoned, (2) lost, (3)
mislaid, or (4) treasure trove property.
 This classification determines the rights of the finder.
 Abandoned property is property the owner no longer wants, and
the finder has absolute right to the property.
 Lost property is property the owner wants but has
“unintentionally…part[ed]” with and cannot find.
 In Iowa, a finder has a right to lost property if the true
owner does not claim it after statutory procedures are
followed. IOWA CODE § 644.11 (1991).
 Mislaid property is property that the owner intentionally places and
forgets about.
 Mislaid property goes to the owner of the premises where
the property is found.
 Treasure trove property is money concealed by the owner so long
ago that the owner cannot be found.
 A finder has rights to such property against all but the
rightful owner.
o The Iowa finder’s statute applies only to lost property and does not
overturn the common law classifications.
Adverse Possession of Chattels

Reynolds v. Bagwell (Supreme Court of Oklahoma, 1948)

o Absent affirmative acts of concealment within the limitations period, the
statute of limitations for adverse possession of personal property will not
be tolled.
o Under the Oklahoma statute of limitations, an owner of an item of
personal property which is stolen is barred, after two years, from
recovering from an adverse possessor who purchased the property in good
faith for value, and who possesses it openly and notoriously.
 The two-year limitations period will not apply if there has been
fraud or affirmative acts of concealment within the limitations
period.
 Silence or failure to inform does not amount to concealment.
O’Keeffe v. Snyder (Supreme Court of NJ, 1980)
o The discovery rule tolls the statute of limitations if the owner of stolen
personal property acted with due diligence to pursue the property.
o The discovery rule requires that the owner of stolen personal property act
with due diligence to pursue the property to receive the benefit of the
tolling of the statute of limitations.
o When determining how much time a true owner has to successfully bring
an action to recover stolen personal property, there are two possible
methods: (1) a statute-of-limitations rule or (2) an adverse-possession
rule.
 To establish adverse possession of chattels, the possessor must
show: “hostile, actual, visible, exclusive, and continuous”
possession for the period of the statute of limitations.
 The nature of personal property makes it difficult to determine
what constitutes the open and hostile possession necessary to
establish adverse possession.
 Thus, the statute-of-limitations rule works better than the
doctrine of adverse possession if personal property is
involved.
 Courts have developed a concept known as the discovery rule to
determine when a statute of limitations begins to run.
 The discovery rule says a cause of action will not accrue
until the injured party discovers, or should have discovered,
facts that form the basis of a cause of action.
 The discovery rule shifts the emphasis from the conduct of
the possessor to the conduct of the owner.
 The rule puts the focus on whether the owner has acted
with due diligence in pursuing his or her property.
Gifts

Gruen v. Gruen (Court of Appeals NY, 1986)


o A gift will be valid when the donor retains a life estate in said gift, because
an irrevocable transfer occurred, granting the donee the right to the gift
once the life estate terminates.
Albingr v. Harris (Supreme Court of Montana, 2002)
o An engagement ring is considered a complete and irrevocable gift once the
elements of intent to give, voluntariness, and acceptance of the gift are
met.
o The giving of an engagement ring is held to the same standard as other
inter vivos gifts, and as such, is completed once the elements of intent to
give, voluntariness, and acceptance are satisfied.
 The district court erred in applying the “conditional gift” theory to
these circumstances in that it failed to consider the lack of
remedies available to women in the event of a broken engagement.
 Whereas at one time a woman was able to bring an action against a
man who broke an engagement, women now have little recourse in
the event of an unfulfilled promise to marry.
 In order to balance these inequities, this court believes it is
necessary to allow women to keep an engagement ring, so long as
the elements of an inter vivos gift are satisfied.
 This balances gender inequality in that it begins to compensate
women for the fixed costs they incur in preparing for a wedding,
such as purchasing a dress and floral arrangements
Brind v. International Trust Co. (Supreme Court of Colorado, 1919)
o There is no gift causa mortis if the donor dies not of the illness or peril that
she feared when making the gift, but of some other illness or peril.
o There are three elements to a valid gift causa mortis.
 First, the gift must be made in contemplation, fear, or peril of
death.
 Second, the donor must die of the illness or peril that she, at the
time, fears or contemplates.
 Third, delivery of the gift must be made.
Chapter 5 Personal Property
State v. Shaw (Supreme Court of Ohio 1902, Davis, J)

Notes
Stealing fish safely secured and confined can be larceny, even if it was not
absolutely impossible for the fish to escape.
o While fish are ferae naturae (wild animals) and stealing them is not
larceny while they are at large, once an individual has pursued, caught,
and confined the fish securely, stealing the fish can be larceny.
o It need not be absolutely impossible for the fish to escape.
 It is sufficient if it is practically impossible for them to escape.



Location of Capture
o Usually it does matter if the successful hunter was trespassing on privately
owned land
o Policy goal is protecting a landowners right to exclude
Animus Revertendi
o In cattle the distinction between animals with animus revertendi (those
with a habit of returning) and ferae naturae
Law and Economics
o Externalities are costs and benefits associated with an activity that are
imposed upon others not involved in the activity and not taken into
account by the decision maker
Popov v. Hayashi (Superior Court of California, County of San Francisco, 2002,
McCarthy, J)


Barry Bonds Case
When a person completes a significant portion of the steps to achieve possession
of an item, but is thwarted due to the unlawful conduct of another, that person is
entitled to a pre-possessory interest of the item.
Armory v. Delamirie (Kings Bench 1722)

A person who finds a piece of chattel has a possessory property interest in the
chattel, which may be enforced against anyone except the true owner of the
chattel.
 Finding an item entitle the finder to sue for its return when another party takes it
from him
Notes



Generally, a subsequent possessor’s full payment to the finder bars any later
action by the true owner against the possessor
o The true owner can compel the successful finder to transfer the payment to
her
A lawsuit in trovera common law action where the plaintiff seeks damages for
the wrongful taking of personal property
o As in Armory
Action brought in replevin a lawsuit to recover possession of personal property
Hannah v. Peel (Kings Bench 1945, Birkett, J)


A finder of lost chattel on another’s property has rights to that chattel superior to
the rights of the property owner.
The owner of land possesses anything attached to or under the surface of the land,
but not necessarily things lying on top.


The general rule is that the finder of lost property has better claim to it than
anyone but the true owner. Armory v. Delamirie, 1 Str. 505 (1722).
The law of who takes between a finder of property and the owner of the land
where the property was found, however, remains unsettled.
Notes



While a finder has rightful possession, he does not have unqualified ownership;
he is a bailee.
o Under the law of bailments, a finder is obligated to (1) keep the chattel
safe and (2) return it to the prior possessor on demand
Person who delivers the chattel is called a bailor
3 basic types of bailments
o Those for the mutual benefit of both the bailor and the bailee
o Those for the primary benefit of the bailee
o Those for the primary benefit of the bailor
McAvoy v. Medina (Supreme Judicial Court of Massachusetts 1866, Dewy, J)

One who finds lost property has possessory rights to it against everyone except its
true owner.
o The simple act of finding misplaced property in a store does not give the
plaintiff the right to take it and claim ownership; it was the defendant’s
duty to hold onto it in case the true owner returned.
o The difference between this case and Bridges v. Hawkesworth, 21 LJQB
75 (1851) is that the notes in Bridges were accidentally dropped, whereas
the pocketbook in this case was deliberately placed on the table, though
the owner neglected to retrieve it.
o Putting an item in a particular location and forgetting to pick it back up is
not the same as losing the item.
Notes


Common law often resolved disputes by categorizing found items as either lost or
mislaid
As a general rule, a mislaid chattel belongs to the owner of the locus in quo not
the finder
Haslem v. Lockwood (Supreme Court of Errors in Connecticut 1871 Park, J)

Manure left by travelers’ horses on a public highway and gathered into heaps by
an individual is the personal property of that individual, and not the real property
of the municipality.
o While manure from animals on a parcel of real property is considered part
of that real property, manure from animals ridden by travelers on the
public highway can be gathered by passing individuals and become their
personal property.
o Manure from animals on a farm or other parcel of real property can benefit
the owner of that property, while manure on a public highway is a
detriment to the public
Benjamin v. Linder Aviation, Inc (Supreme Court of Iowa 1995 Ternus, J)



Under the common law, property is mislaid when it is intentionally placed or
concealed by an owner and later forgotten, and the property belongs to the owner
of the premises where the property is found.
The finder of money concealed in an airplane wing may not keep it as lost
property under the Iowa finder’s statute
o Under the common law, found property is (1) abandoned, (2) lost, (3)
mislaid, or (4) treasure trove property.
 This classification determines the rights of the finder.
 Abandoned property is property the owner no longer wants, and
the finder has absolute right to the property.
 Lost property is property the owner wants but has
“unintentionally…part[ed]” with and cannot find.
 In Iowa, a finder has a right to lost property if the true
owner does not claim it after statutory procedures are
followed. IOWA CODE § 644.11 (1991).
 Mislaid property is property that the owner intentionally places and
forgets about.
 Mislaid property goes to the owner of the premises where
the property is found.
 Treasure trove property is money concealed by the owner so long
ago that the owner cannot be found.
 A finder has rights to such property against all but the
rightful owner. The Iowa finder’s statute applies only to
lost property and does not overturn the common law
classifications.
Dissent
o Snell, J
 The result in this case is illogical and unjust. It is clear that the
owner voluntarily concealed the money in the wing, but there is no
evidence that the owner forgot where it was. Benjamin followed all
the procedures of the Iowa finder’s statute, giving notice and an
opportunity for the true owner to come forward. The bills were
over thirty years old at the time they were found, and no owner
claimed them in that time. The only logical conclusion is that the
money was abandoned, and Benjamin is entitled to the full amount.
Notes

Treasure Trove
o As a general rule, most courts hold that items embedded in the soil are
legal property of the landowner



o Most jurisdictions reject the treasure trove doctrine entirely and give such
property to the owner of the land where it was founded
Statutory Approaches
o Over one-third of the states have adopted some form of lost property
statute
o Typical statute requires owner to (1) notify the police or other government
officials; (2) deposit the found article with them; (3) publish notice of the
find
 If the owner fails to claim the property within a certain period
(commonly 6-12 months) title is irrevocably vested in the finder
Adverse Possession of Chattels
Title to personal property may be obtained by adverse possession
Reynolds v. Bagwell (Supreme Court of Oklahoma 1948, Gibson, J)


The statute of limitations for adverse possession of personal property will not be
tolled absent affirmative acts of concealment within the limitations period
Absent affirmative acts of concealment within the limitations period, the statute of
limitations for adverse possession of personal property will not be tolled.
o Under the Oklahoma statute of limitations, an owner of an item of
personal property, which is stolen is barred, after two years, from
recovering from an adverse possessor who purchased the property in good
faith for value, and who possesses it openly and notoriously.
 The two-year limitations period will not apply if there has been
fraud or affirmative acts of concealment within the limitations
period.
 Silence or failure to inform does not amount to concealment.
O’Keeffe v. Snyder (Supreme Court of New Jersey 1980, Pollock J)

The discovery rule tolls the statute of limitations if the owner of stolen personal
property acted with due diligence to pursue the property.
o The discovery rule requires that the owner of stolen personal property act
with due diligence to pursue the property to receive the benefit of the
tolling of the statute of limitations.
 When determining how much time a true owner has to successfully
bring an action to recover stolen personal property, there are two
possible methods: (1) a statute-of-limitations rule or (2) an
adverse-possession rule.
 To establish adverse possession of chattels, the possessor must
show: “hostile, actual, visible, exclusive, and continuous”
possession for the period of the statute of limitations.
 The nature of personal property makes it difficult to
determine what constitutes the open and hostile possession
necessary to establish adverse possession.

Thus, the statute-of-limitations rule works better than the doctrine
of adverse possession if personal property is involved.
o Courts have developed a concept known as the discovery rule to determine
when a statute of limitations begins to run.
 The discovery rule says a cause of action will not accrue until the
injured party discovers, or should have discovered, facts that form
the basis of a cause of action.
 The discovery rule shifts the emphasis from the conduct of the
possessor to the conduct of the owner. The rule puts the focus on
whether the owner has acted with due diligence in pursuing his or
her property.
Gruen v. Gruen (Court of Appeals New York 1986, Simons, J)

A gift will be valid when the donor retains a life estate in said gift, because an
irrevocable transfer occurred, granting the donee the right to the gift once the life
estate terminates.
o Michael is entitled to the painting because the gift was irrevocable once it
was given and Victor was only entitled to the rights afforded to life tenants
with regard to the painting.
o A gift will be valid when the donor retains a life estate in said gift, because
an irrevocable transfer occurred, granting the donee the right to the gift
once the life estate terminates.
 In this case, Victor made a valid gift to his son, Michael.
 Once the gift was made, it was irrevocable, and the only rights
Victor had in the painting were those afforded to life tenants.
 Since there was a valid gift, Michael is entitled to the painting.
Notes


Ownership of property can be divided by time
Symbolic Delivery only works if physical delivery is impossible or impractical
Albinger v. Harris (Supreme Court of Montana 2002, Nelson, J)

An engagement ring is considered a complete and irrevocable gift once the
elements of intent to give, voluntariness, and acceptance of the gift are met.
o The giving of an engagement ring is held to the same standard as other
inter vivos gifts, and as such, is completed once the elements of intent to
give, voluntariness, and acceptance are satisfied.
o The district court erred in applying the “conditional gift” theory to these
circumstances in that it failed to consider the lack of remedies available to
women in the event of a broken engagement.
 Whereas at one time a woman was able to bring an action against a
man who broke an engagement, women now have little recourse in
the event of an unfulfilled promise to marry.


In order to balance these inequities, this court believes it is
necessary to allow women to keep an engagement ring, so long as
the elements of an inter vivos gift are satisfied.
 This balances gender inequality in that it begins to compensate
women for the fixed costs they incur in preparing for a wedding,
such as purchasing a dress and floral arrangements
Concurrence/Dissent, Trieweiler
o The majority is correct in its determination that gender discrimination is
improper.
 However, no court has held that an engagement ring is not a
conditional gift that can be recovered upon the failure to meet a
condition of the gift.
 Additionally, the issue of gender inequality was never raised by
either party in the court below. As such, the district court was
correct in determining that this case is one involving a conditional
gift
Brind v. International Trust Co. (Supreme Court of Colorado 1919, Burke, J)

There is no gift causa mortis if the donor dies not of the illness or peril that she
feared when making the gift, but of some other illness or peril.
o There is no gift causa mortis if the donor dies not of the illness or peril that
she feared when making the gift, but of some other illness or peril.
o There are three elements to a valid gift causa mortis.
 First, the gift must be made in contemplation, fear, or peril of
death.
 Second, the donor must die of the illness or peril that she, at the
time, fears or contemplates.
 Third, delivery of the gift must be made.
Chapter 7 Leasing Real Property
Creating the Tenancy
Neithamer v. Brenneman Property Services, Inc (D.C 1999, Kessler, J)

Once a plaintiff makes a prima facie showing of discrimination under the Fair
Housing Act, 46 U.S.C. § 2601, et seq., the defendant may provide a nondiscriminatory reason for rejecting the plaintiff’s housing application, but the
plaintiff may rebut this by establishing the defendant’s nondiscriminatory reason
is a pretext.
o A plaintiff’s claim of discrimination under the FHA is evaluated under the
burden-shifting framework of McDonnell Douglas Corp. v. Green, 411
U.S. 792 (1973).
 First, the plaintiff must establish a prima facie case of
discrimination.
 To establish a prima facie case, the plaintiff must show: (1)
the plaintiff was a member of a protected class, and the
defendant knew or suspected the plaintiff was a member of
that class; (2) the plaintiff applied for and was qualified to
rent the property; (3) the defendant rejected the plaintiff’s
application; and (4) the property remained available after
rejection.
 Once the plaintiff makes the prima facie case, the burden shifts to
the defendant to provide a non-discriminatory reason for rejecting
the plaintiff.
 If the defendant provides such a reason, the plaintiff has the
burden of showing the defendant’s non-discriminatory
reason is a pretext for discrimination.
Fair Housing Council of San Fernando Valley v. Roomate.com LLC (U.S Court of
Appeals 9th Cir. 2012, Kozinski, J)

The anti-discrimination provisions of the Fair Housing Act do not apply to the
selection of roommates.
o The FHA prohibits discrimination on the basis of race, color, religion, sex,
familial status, or national origin in the “sale or rental of a dwelling.”
 However, the FHA does not apply to the selection of roommates.
o A “dwelling” as written in the FHA could be interpreted to either include
or exclude shared living units.
 However, the court determines that to avoid constitutional
concerns, it must construe the FHA as not including shared living
units.
 Under the Constitution, the right to intimate association—and,
indeed, the right not to associate—is a fundamental liberty.
 And a relationship with a roommate is certainly an intimate one.
“Aside from immediate family or a romantic partner, it’s hard to
imagine a relationship more intimate than that between roommates,
who share living rooms, dining rooms, kitchens, bathrooms, even
bedrooms.”
 Moreover, from a policy standpoint, the choice in roommates has
significant safety implications.
Kajo Church Square, Inc. v. Walker (Court of Appeals of Texas 2003, Griffith, J)

There is no such interest as a leasehold for life.
o There are only four types of leases:
 (1) A term of years,
 (2) A periodic tenancy,
 (3) A tenancy at will, and
 (4) A tenancy at sufferance.
o An event as uncertain in time as an individual’s death may not be used to
mark the end of a leasehold.
 Absent other specification in the lease, a lease will be construed, as
a tenancy at will, terminable by either party at any time.
Keydata Corp. v. United States (United States Court of Claims 1974, Davis, J)

A lessor is obligated to provide the lessee with actual possession of the leased
premises at the beginning of the term.
o The lessor is obligated to provide the lessee with actual possession of the
premises and not merely the right to sue to recover the premises.
 Some jurisdictions, including Massachusetts, follow the doctrine
that a lessor only promises that possession of the premises will not
be withheld by the lessor or someone with superior title.
 However, the more appropriate rule is that the lessor covenants to
deliver actual possession of the premises to the lessee.
 The lessor is likelier than the lessee to know the status of the
premises and the rights of any persons occupying the premises.
 Furthermore, prior to the beginning of the term, the lessor
has the power to evict any persons improperly occupying
the premises, and the lessee does not.
 Additionally, while Massachusetts law restricts eviction of
holdover tenants, the lessor may still protect itself by
expressly limiting or disclaiming its obligation to deliver
possession, requiring security from tenants to prevent
holdovers, or seeking damages from holdover tenants.
 The lessor is better positioned to anticipate, avoid, or bear
these risks than the lessee.
Condition of the Premises
In re Clark (United States Bankruptcy Court Penn 1989, Scholl, J)


Tenants can receive damages from landlords for egregious living conditions.
o The landlord has an obligation to maintain the premises in a livable
condition and in accordance with legal standards.
 This includes maintaining the premises in such a way as not to
pose severe dangers to tenants’ health and safety.
Construction Eviction
o The principal common law remedy available to the tenant who
encountered defective conditions.
 With the rise of the implied warrant of habitability, constructive
eviction is used infrequently today in connection with the
residential leases, but it remains an important tool for commercial
tenants
o The narrow scope of the doctrine—most notably the need for the tenant to
vacate the premises—mad it difficult for residential tenants to use
Fidelity Mutual Life Insurance Co. v. Kaminsky 1989, Murphy, J)

A landlord’s failure to act in the face of repeated requests to protect a tenant’s
quiet enjoyment of the premises can constitute a constructive eviction.
o In order to prevail on a claim of constructive eviction, a tenant must show:
 (1) The landlord intended that the tenant no longer enjoy the
premises (which a trier of fact can infer from circumstances),
 (2) The landlord or its agents committed a material act or omission
that substantially interfered with the use and enjoyment of the
premises for its leased purpose,
 (3) The act or omission permanently deprived the tenant of the use
and enjoyment of the premises, and
 (4) The tenant abandoned the premises within a reasonable period
of time after the act or omission.
 An omission can include permitting third parties to
interfere with the tenant’s quiet enjoyment
JMB Properties Urban Co. v. Paolucci (Appellate Court of Illinois 1992, Slater, J)

If a tenant does not vacate the premises within a reasonable time after a
constructive eviction, he waives his claim to constructive eviction.
o Constructive eviction can only exist if a tenant surrenders the property.
 The tenant is not required to surrender the property immediately
after a constructive eviction.
 However, the tenant must do so in a reasonable time. Otherwise,
the tenant waives his claim of constructive eviction
The Implied Warranty of Habiability
Wade v. Jobe (Supreme Court of Utah 1991, Durham, J)

If a landlord breaches the implied warranty of habitability, the tenant is entitled to
a percentage reduction of the rent for the period of the breach.
o The percentage diminution test considers the percentage by which the
defects reduce the tenant’s use and enjoyment of the premises.
 The court must review the importance of the particular defect and
how long it has existed.
o Another method is the fair value of the premises as warranted minus the
fair rental value of the conditions as they exist.
 The contract rent may be evidence of the as-warranted fair rental
value; experts may provide evidence as well.
o Another method is to subtract the as-is fair rental value from the contract
rent.
 In both cases, experts will likely be needed to assess fair rental
value.
o This court rejects these admittedly more objective methodologies in favor
of the percent diminution test to eliminate the need for expert testimony
and reduce the cost of enforcing the warranty of habitability.
Teller v. McCoy (Supreme Court of Appeals of West Virginia 1978, Majority, J)

There is an implied warranty of habitability in a residential lease.
o In a residential lease, there is an implied warranty by the landlord to keep
the premises habitable and fit for human occupation.
o Habitability depends on the individual facts of each case, but includes
provision of bare living requirements, including heat and hot water, and
maintenance of basic sanitary conditions.
o Implied warranties are adopted to protect consumers who do not have the
means, knowledge, or opportunity to ensure the goods they purchase are
safe.
o A residential tenant generally does not have the means or opportunity to
inspect the premises for safety, nor does he have the bargaining power to
insist on express warranties and covenants.
Transferring the Tenant’s Interest
Ernst v. Conditt (Court of Appeals of Tennessee 1964, Chattin, J)



One who takes an assignment of a leasehold interest is responsible to the lessor
under the terms of the lease.
o A sublease is created when a lessee conveys less than his full interest in
the property to another, either by term of years or by retaining a right to
re-enter or right of reversion.
 In that situation, the lessee remains in privity of contract and
privity of estate with the lessor, and is responsible for performance
under the lease.
 In contrast, a lessee who conveys all of his interest to another
creates an assignment, and the lessee is no longer in privity of
estate with the lessor.
 Therefore, the lessor may hold the assignee directly responsible for
the terms of the lease.
With leases and subleases diagram it out every time
A lease is both a contract and a conveyance of real estate





o Privity of estate goes to the lessee
Rights and duties that arise from privity of estate
o Any covenants in the lease between Ernst and Rogers that “touch and
concern” the land would “run with the land” and be binding on Conditt as
assignee. Obligation to pay rent runs with the land because it touches and
concerns the land
If transfer was a sublease as opposed to an assignment, there is no privity of estate
between Conditt and Ernst
o Therefore Conditt would have no liability
Sublease is viewed as a separate contract with a separate privity of contract and
estate
How does one determine whether a transfer is a sublease or an assignment?
o If the tenant has transferred the entire remainder of his term it is an
assignment
 Objective test
 Vast majority rule
o By agreeing to remain liable Rogers has retained the right to take back
control over the property therefore he has not actually transferred all of his
interest
 Subjective test (intent of the parties)
 Argument presented by Conditt (opposed by prof.)
Dump it rule
o In a multiparty situation, Assignee of Tenant can assign to third party to
dump all liability
Kendall v. Ernest Pestana, Inc. (Supreme Court of California 1985, Broussard, J)



A commercial lessor may not unreasonably withhold his consent to an assignment
of a lease, with or without a clause requiring landlord's consent to transfer the
lease.
o Although it has traditionally been held that clauses requiring the landlord’s
consent to transfer a lease are valid, this court finds that such consent may
only be withheld if reasonable.
 This is in line with the policy against restraining free alienation of
land as well as an increased recognition of the contractual nature of
leases and the resulting contractual duties of good faith and
reasonableness.
 In determining the reasonableness of a landlord’s refusal to
consent, courts may look to factors such as the financial stability of
the proposed assignee and the nature of the assignee’s proposed
use of the property in question.
The law generally free alienability of property
o However, most commercial businesses do include a clause, which restricts
to the tenants ability to assign or sublease.
Sole Discretion Clause
o The lease might provided that L may refuse consent for any reason
whatsoever in his sole discretion
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o Was the majority rule prior to Kendall
Reasonableness Clause
o The lease might provide that L may refuse consent only on a commercially
reasonable basis
 Bad credit; ect
 Usually the fair compromise
 Modern Trend
 Rationale rests on both property law and contract law reflecting the
modern view that the lease is a hybrid
No standard in lease
o The lease might require L’s consent, but contain no standard to guide L’s
decision; such a provision is called a silent consent clause
 This equals a sole discretion clause
Ending the Tenancy
Sommer v. Kridel (Supreme Court of New Jersey 1977, Pashman, J)
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A landlord has a duty to mitigate damages by making a reasonable effort to re-let
the premises when seeking to recover rent from a defaulting tenant.
o Such a duty is consistent with basic justice and fairness.
There is an increasing trend to treat leases not as conveyances of land, but as
contracts.
o As a result, application of the contract doctrine of mitigation of damages is
appropriate.
o If a landlord fails to mitigate damages when he has the opportunity, the
defaulting tenant may be relieved of his duty to pay rent.
Surrender
o A mutual agreement between landlord and tenant to terminate the lease
early
 As a general rule of contract law, silence as a response (to notice of
surrender) is not acceptance
Abandonment
o Occurs when
 (1) He vacates the leased property without justification;
 (2) Without any present intention of returning; and
 (3) He defaults in the payment of the rent
o 3 options for landlord
 (1) Leave the premises vacant and sue tenant later for the accrued
rent
 (2) Treat the abandonment as an implied offer of surrender,
terminate the lease, and thus end the tenants liability for future rent
 (3) Mitigate damages by re-letting the premises on the tenants
behalf
The Lost Sale Conundrum
o Prof believes courts analysis is thin
Hillview Associates v. Bloomquist (Supreme Court of Iowa 1989, Andreasen, J)
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A landlord may not evict a tenant in retaliation for the tenant reporting housing
violations or other problems with the condition of the property.
o Landlords do not have the right to evict tenants simply because the tenants
voice complaints about the condition of the property.
 Tenants have the right to reasonably let their voices be heard in
order to maintain their property in good, livable condition.
Berg v. Wiley (Supreme Court of Minnesota 1978, Rogosheske, J)
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When a lessor feels that the tenant in possession is violating the terms of the lease,
the lessor must exercise judicial remedies to retake the property.
o The court abandons the common law rule allowing self-help.
o From this decision forward, any lessor who wishes to retake property from
a lessee for violations of the lease must seek judicial assistance.