PROPERTY OUTLINE
Principles Concerning Personal Property
***good source for definitions, but you need to add rules, U.C.C. 2-403 of NY may be helpful,
or may only be for Graffman**
Types of Property
 Real property
o All about land
 Personal property
o All about items
o Types
 Tangible: items you can hold, concrete items
 Examples: phone, laptop, water bottle, car
 Intangible: abstract items, things you can own but cannot touch
 Examples: domain names, trademarks, copyrights
A Few Principles Concerning Personal Property
 “Bundle of sticks,” each stick is a right. When I sell property, the property does not
change. My rights to the property change.
 Right to exclude: you can sell to whoever you want, under whatever circumstances you
want
 Possession does not mean ownership
o When I drop my car off at a dealership for repair, the dealership has possession,
but I have ownership.
o By property, the court means right.
 You can have property to property. (You may not say it that way)
 Finders are bailees. They have a right to true owner, in effect, there’s a bailment
Found Personal Property
 There are four kinds, five elements. Each property type has a hierarchy of interest.
 In a case, my cause of action is the remedy I am seeking according to the category (type
of found property).
 FINDERS ARE BAILORS
 Abandoned Property:
o Flavor #1: intentionally relinquish and give up the title
 Property goes to the finder then the landowner.
o Flavor #2: involuntary loss of left without hope or expectation to acquire again.
 Property goes to the true owner, the finder, and then the landowner
 Involuntarily does not alone suggest unknowingly or negligently
 Lost Property: involuntarily parted with because of neglect, carelessness, or inadvertence.
o Suggests they didn’t even know
o Not affected by place the property is found
o Property goes to the true owner, then finder, and then the landowner
 Mislaid Property: intentionally put somewhere and later forgotten
o Property goes to the true owner, then the landowner. Finder gets no rights.
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Treasure Trove (where recognized): gold, silver, coin, bullion, whose owner is unknown,
found in concealed earth or in a house or other private place, but not lying on the ground.
o There must be a sense of antiquity. The owner is dead or unknown.
o Property goes to the true owner, then the finder (almost always the finder), then
the landowner
Equitable Division: sometimes there are multiple parties have equal interest. The property
is divided fairly among parties
Bailments
 Parties
o Bailor: person with interest who gives possession
1. Does not have to be the true owner
2. FINERS ARE BAILORS
o Bailee: person who gets possession from bailor
 Elements of a Bailment:
1. Express of Implied Agreement;
2. Delivery;
3. Acceptance; and
4. Return the Property
 Construct: the court will create of “construct” a bailment from facts of case
 Bailment for Hire: mutual benefit of the parties
o Standard of Care: reasonable care
 Gratuitous Bailment: benefits one party, usually the bailor
o Standard of Care: slight diligence
 Prima Facie Case of Bailment: creates a rebuttable presumption that the bailee acted
negligently
o The bailee gets a chance to prove otherwise
o Elements:
1. Express or Implied Agreement;
2. Delivery;
3. Acceptance; and
4. Failure to Return the Property (or return in diminished condition).
Entrusting
 Entrusting: includes any delivery or acquiescence in retention of possession regardless of
any condition expressed between the parties to the delivery or acquiescence and
regardless of whether the procuring of the entrusting of the possessor’s disposition of the
goods has been as such to be larcenous under criminal law.
o Once you entrust, you have a bailment
o If you entrust to a merchant of that kind, they have rights to sell. Even though it’s
“annoying.”
 Entrusting can be as simple as finding money and delivering it to the police station.
You’re not giving it to them forever, you have some interest, and have the right to know
if someone of a higher interest claims the property.
 When you drop your car off for a repair, that’s an entrustment
 Does not matter if True Owner puts conditions on the delivery/acquiescence
o Acquiescence: reluctant acceptance without protest
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When a person knowingly entrusts, they assume the risk of the merchant’s actions
Transfers of Personal Property
 Rules
o Rule #1: A purchaser gets all the title that a seller has or has the power to transfer.
o Rule #2: Rule #1 + void title = once void always void
 Exception!! If the true owner undertakes certain actions, they can create a
risk of losing their title to a buyer. This makes the title voidable.
 This makes the title voidable. And opens the question if the title is
void or not.
 IF buyer is the right kind of buyer, then Voidable Title becomes Good
Title, and the buyer not owns it (original T.O. cannot get it back)
o The purchaser has power to purchase a voidable title as a good title although:
 The transferor was deceived,
 The delivery was exchanged for a check alter dishonored,
 Agreed to cash sale,
 Delivery was procured through fraud
Limits to True Owner’s Claim
1. A purchaser gets all the power that the seller has or has the power to transfer.
2. Rule #1 + VOID TITLE = ONCE VOID, ALWAYS VOID.
Types of Titles
 Voidable
o Entrusting + entrustment to a merchant of that kind = merchant has power to
transfer rights
o Becomes a good title with BFP
 Void title: no title
o If a thief steals a car and sells it, it is a void title, even if it is a Bona Fide
purchaser.
 Good title: true ownership, can be transferred
 Bona Fide Purchaser: A buyer in the normal course of business
o The purchaser bought in good faith. They did not know, and had no way of
knowing if the purchase is invalid/wrong.
Basic Principles of Real Property Ownership
Remedies Concerning Personal Property
 In a case, my cause of action is the remedy I am seeking according to the category (type
of found property).
 Three kinds
 Replevin: The true owner seeks to regain possession of personal property.
o To work, defendant must still have possession
 Conversion: wrongful exercise of dominion or control over the personal property.
o Requires wrongful exercise must be such a substantial interference with the rights
of the true owner that all or substantially all value is lost.
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o Four Elements:
1. Interest capable of precise definition (p. 43),
2. Capable of exclusive possession or control (p. 43),
3. Owner must have legitimate claim to exclusivity (p. 43),
4. “Wrongfully dispose”
 Exercise wrongful control and destroy value to T.O.
Trespass to Chattels: defendant interfered with use of property such that there is some
diminution of value but not necessarily a loss of all or substantially all value.
o Less impact than conversion
To an extent, conversion and trespass to chattels are distinguished by:
1. The degree of control over property; and
2. harm done to property.
 Steal a car and scratch: trespass to chattel
 Steal a car and total: conversion
Creation of Property Interests by Gift, Devise, or Descent
Possession by Gift
 Donor/Donee
 Inter Vivos Gift: when the gift is given during the Donor’s lifetime
o Irrevocable
o To make valid:
1. There must be an intention on the part of the donor to make a gift;
2. There must be a delivery to transfer of the subject matter of the gift; and
3. There must be acceptance of the gift by the donee
 Bequest: giving personal property to someone in your will
o Devise: bequest of real property
 Gifts Causa Mortis: gifts made in contemplation of death
o If the donor does not die, the gift is revocable by the donor
o Reasonable belief
o Revocable
 Testate: with a will; intestate: without a will
Possession by “Split” of Title in Purchases of Real Property
Adverse Possession
 Guiding principle: provide notice to true owner, allowing for the legal vindication of
property rights
 Elements:
o Actual and Exclusive Possession
o Open and Notorious
o Hostility
 Mainly nonpermissive use
 Who benefited form use
 Way held and maintained
 Relationship between parties
 Familial can factor
o Limitations Period
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Show all other elements were met for a continuous period of time (usually
time is specified)
Can stack
Remedies
o TO can bring suit for ejectment
Adverse Possession by Color of Title
o If one possesses land because of some document purporting to give (but does not
actually give), the erroneous possessor gets what he actually possessed PLUS
whatever the title document says he owned
o Only triggered by documents that purport to transfer title
Forms of Ownership by Multiple Owners
 Tenancy in Common:
 Joint Tenants with Right of Survivorship
 Tenants by the Entirety
 Elements in Common
1. Each tenant owns an undivided interest in the fee
2. Each tenant can enter onto and avoid exclusion from the land
3. Each tenant may use the land, but must account for the other tenants to
profit
4. Each tenant must not commit waste
 Tenancy at Sufferance: tenant’s right of possession ended and tenant stays
1. LL “suffers” continued possession
2. Tenant initially had right to be there
 Statutory Changes
1. Gives more protection to tenants
 Transfers
o Tenancy in Common: tenant can transfer interest, transferee gets all transferor can
transfer
o Joint Tenancy with Right to Survivorship: once transfer occurs, unities are
severed, thus a tenancy in common occurs
 Four Unities
1. Unity of Time: joint tenants gain interest at the same time
2. Unity of Title: joint tenants get interest from the same document
3. Unity of Interest: joint tenants have equal percent interest
4. Unity of Possession: joint tenants have the same right to possession
o Tenancy by the Entirety: cannot transfer without a divorce
 Death of a Tenant
o Tenancy in Common: passes to heirs
o Joint Tenancy with Right to Survivorship: dead tenant’s interest passes to
surviving tenant, heirs get nothing
o Tenancy by the Entirety: dead tenant’s interest goes to the surviving tenant
Trusts
 Trustor transfers res and Trustee hold title for the benefit of 1+ Beneficiaries
 Creation of a trust makes split in the title
 Fiduciary Duties of the Trustee:
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1. Duty of Loyalty: trustee must act solely in interests of beneficiary, not his
or anyone else’s
2. Duty to Avoid Self-Dealing: trustee must not do anything that could be
perceived as benefiting herself
3. Duty of Reasonable, Prudent Investment: trustee must act to use the res in
a reasonable, prudent way. Cannot be passive.
4. Duty to Protect and Preserve the Res: trustee must care for and maintain
the res
5. Duty to Avoid Commingling the Res: res needs to be kept separate from
other property. Separate bank account for trust funds
6. Duty to Account for Trust Funds: trustee must be able to show the
beneficiary what has been done to the res
Issues in Landlord-Tenant Law
Preliminary Issues – Types of Leases and Rent
 Statutory changes to offer more protection to the tenants
Types of Leases
 Estate of Years/Fixed Term Tenancy: fixed end date with express agreement
 Tenancy at Will: both parties wan the lease and can terminate
 Periodic Tenancy: a lease with some kind of period built in
o Period is time of stay and frequency of payment—regularity
o Stay as you want, pay per chosen period
o Notice to terminate
 Tenancy at Sufferance: arises when a tenant holds over after the lease expires
Types of Rent
 Types of Rent
o Gross/Fixed: fixed amount of capital rent, LL pays TIM (taxes, insurance,
maintenance)
o Triple Net: fixed amount of small rent and TIM
 Typically commercial rentals
o Percentage: fixed amount of small rent and percent of profit
 Seen in retail
Transfers by the Tenant
 Tenancy is transferrable unless the lease provides otherwise. Landlord may prohibit
transfers or require tenant to obtain consent
 Two types
o Assignment: transfers lessee’s entire interest
o Sublease: transfers a portion of the lessee’s interest, with the original lessee
retaining a right of reentry at some point during the unexplained term of the lease
 Privity of Contract:
o Common Law principle
o The rights and obligations of a contract apply only to the parties of the contract
 Original tenant—party to original lease, is always in privity of contract
with LL and subject to LL’s suit on lease terms
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o Privity of Estate
 Whomever has possession is in privity of estate with the LL, and therefore
subject to possession related remedies like ejectment
 Original tenant gets privity of contract and estate at the start of the
lease. Once the lease in transferred, original lessee has privity of
contract and assignee/sublessee has privity of estate
Transfers by the Landlord
 Problem: First in time is the first in right
o If lease comes first, T has a higher (senior) priority
 Problem: Getting T to pay rent to new LL
o T made contract with original LL; why have to pay to new LL?
 Problem: T wants to continue in lease
o Why does new LL have to let T stay?
 SNDA Clause
o Subordination: tenant agrees to subordinate to purchaser
o Non-disturbance: tenant will not be “disturbed” in its enjoyment of the lease
o Attornment: tenant agrees to pay subsequent owner
o These elements may appear in different parts of the lease
The Landlord’s Duty to Deliver Possession at the Start of the Lease
 Rules
o American Rule
 LL won’t prevent tenant from taking possession
o English Rule
 Majority law in America
 LL is obligated to deliver actual possession to the tenant
Tenant’s Duty to Take and/or Keep Possession
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Landlord Obligations re Premises Quality (or Condition)
 Premises Quality
o Quality: ability of tenant to use the leased premises for what T wants to do
o What duties does LL have re premises quality?
 Duty at start of lease?
 Duty to fix premises during lease?
 What remedy does T have if premises quality is sub-standard?
 Decide by determining if independent or dependent relationship
 Independent Relationship: promise to pay rent is independent of
promise to maintain
o T has to pay rent even if LL fails to maintain
 Dependent Relationship: promise to pay rent depends of
performance of promise to maintain
o T may not have to pay rent if LL fails to maintain
o Restatement Test
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(1) LL fails to perform promise in a lease
(2) LL’s promise was significant inducement for T to enter lease
(3) T provides notice
(4) LL does not perform promise within reasonable time after notice
Then T can terminate the lease (not have to pay rent)
Tenant Obligations re Premises Quality (or Condition)
 Duty to Avoid Waste
o Waste: conduct that injures LL’s reversionary interest
 Damage that reduces value substantially
 Ameliorative waste may increase value, but “injury” that imposes
obligation/continuing cost
 Restorations at the end of the lease
o It depends on the lease
 If lease is silent: T has no duty to restore
 If lease says T must maintain – n duty to restore
 If lease says T must restore
 “return premises in as good a condition, normal wear and tear
expected” – T has duty to restore
 Fixtures
o General Rule
 Fixture added by T becomes part of the real property, T cannot remove at
the end of the lease
Protections Implied Into the Lease
 Implied Covenant of Quiet Enjoyment
o Promise by LL that T can quietly enjoy rights under lease
 Quiet: no interference with/disturbance of T’s rights under lease
 Enjoyment: T’s ability to exercise rights under lease
o Elements
 (1) conduct by or attributable to the LL
 (2) substantial deprivation (disturbance) of enjoyment of premises
 (3) notice to LL
 (4) reasonable time/opportunity to cure
 (5) T abandons premises within reasonable time
o At common law, if you prove all five, result is constructive eviction
o Focus: conduct of LL
 Implied Warranty of Habitability
o Promise by LL that premises are habitable (livable)
 Within that promise is a second promise that LL will maintain the premise
so they remain habitable throughout the lease
o Focus: Condition of premises
End of the Lease Issues: Renewal, Termination, and Holdover Tenants
 Termination via T leaving
o Surrender: when both T and LL agree lease is terminated
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o Abandonment: When T walks away w/o LL agreement (unilateral)
 LL has option
 Treat lease as still in effect and seek rent from T; or
 Choose to accept and terminate the lease (in effect converting it to
a surrender)
 Holdover
o Creates a Tenancy at Sufferance
o LL can:
 Sue to evict
 Sue for renewal
 Destruction of Leased Premises
o At Common Law, T is still liable for rent
 Leases are conveyances, you still have to pay for the land
o Modern Day Law: residential leases are terminated by destruction (T not liable for
rent)
Landlord Remedies for Tenant Breaches
 Security Deposits
 Eviction
Discriminations and the Fair Housing Act
Fair Housing Act
1) Section 3604 makes it unlawful to:
a) Refuse to sell/rent/negotiate/make unavailable/deny a dwelling because of race, sex,
religion . . . etc.
b) Discriminate terms/conditions/provisions of sale/rental because of race, sex, religion . . .
etc.
c) Make/print/publish a notice/statement/advertisement for sale/rental of dwelling which
indicates preference/discrimination because of race, sex, religion . . . etc.
d) Represent to a person because of race, sex, religion . . . etc. not available when it is
available
e) For profit, induce/attempt to induce a person to sell/rent by representations regarding
entry into a neighborhood because of race, sex, religion . . . etc
f) Discriminate in sale/rental, terms/conditions of dwelling because of a handicap
2) 3-Part Test to Prove Discrimination
a) P establishes prima facie case of discriminatory intent
b) Rebuttal: D proves legitimate, non-discriminatory reasons for rejection
c) P proves reasons are pretextual
Possessory Estates and Future Interests
Basic Concepts
 Possessory Estate: currently existing right to take actual possession of the land
immediately
o There is always a Possessory Estate in every conveyance of land
o 3 types
 Fee Simple Absolute
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 Defeasible Fees
 Finite Fees
Future Interest: currently existing right to take actual possession of the property at some
time in the future (at the end of a preceding possessory estate)
Possessory Estates and Future Interest are created in conveyances found in:
o Deed
 Effective upon completion
o Will
 Not effective until grantor dies and will becomes effective
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Possessory Estate Type #1: Fee Simple Absolute
Possessory Estate Type #2: Defeasible Fees
Possessory Estate Type #3: Finite Estates
Special Situations for Executory Interests—FI-Only Conveyances and Gap Scenarios
Vested Remainders Subject to Divestments (VRSD
Conveyances to a group of People (Class Conveyance or Class Gifts)
Two Really Arcane Rules and One Important Concept
Rule Against Perpetuities
Limits on Government Power Over Private Property
The Constitutional Limit of Due Process/Equal Protection
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Equal Protection
o Similarly situated parties being treated unequal
5th Amendment
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o No person shall be deprived of property without due process of law, nor shall
private property be taken for public use without just compensation
14th Amendment
o No State shall deprive any person of property without due process of law, nor
deny to any person within its jurisdiction the equal protection of the laws
Rational Basis Test—does the law or regulation violate the equal protection clause?
o In areas of social and economic policy, a statutory classification that neither
proceeds along suspect lines nor infringes fundamental constitutional rights must
be upheld against equal protection challenge if there is any reasonably
conceivable state facts that could provide a rational basis for the classification
Two kinds of takings
o Regulatory
 No government intent to take private property—only to regulate
 Issue: does the regulation go too far and rise to the level of a taking?
o Eminent Domain
 Government intends to take private property?
 Issue: is the taking for public use?
Taking defined
o A permanent physical occupation authorized by government
o Deprives the owner of:
 Right to use the occupied space
 Right to exclude others from the occupied space
 Loss of control of the space
Takings Clause
o (1) “taking” of a private property
o (2) for a “public use,” and
o (3) “just compensation” is provided to the owner
The Constitutional Limit of the Takings Clause—Regulatory Takings Theories
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Quid Pro Quo/ Government Exaction
o Use when the government is asking for something in exchange for your request
o Nolan-Dolan Test
 (1) there must be an essential nexus between:
 A legit state interest, and
 The permit condition exacted by the city (what is requested by the
landowner), AND
 (2) Rough proportionality between:
 The degree of exactions demanded, and
 The projected impact of the proposed development
Takings by Government Regulation
o Use when the government regulation is being applied but does not want anything
in return or to give anything in return
o Penn Central Factors Test
 (1) The public purpose for the taking (is there a valid purpose),
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(2) The nature/character of the government action/regulation (is the
nature/character too extreme),
(3) Investment-backed expectations affected by regulation,
(4) Economic effect of the regulation (is the economic impact too great)
It’s a “categorical rule”: a regulation resulting in total deprivation of a
property’s economic value is a taking
 Make sure the regulation does not destroy all value
The Constitutional Limit of the Takings Clause—Regulatory Takings Remedies
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If there is a taking, there must be compensation
Temporary takings: there is still a need for compensation where takings is only temporary
o Less than 32 months is temporary
The remedy is just compensation
Eminent Domain
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Eminent Domain is a taking, so these questions are a matter of whether the government
satisfies the “public use” requirement
A “valid public purpose” satisfies the “public use” requirement
The “polar propositions”
o Government cannot take from one private party to give benefit to another private
party
o State may transfer from one private party to another if future use by public is
reason
Measuring Just Compensation
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General Rule:
o Just compensation is measured by what the property owner lost, not what the
taker/government gained
o Government’s Strategy
 Take as little as needed to the FMV is less
 Don’t but the whole lot if only part is needed
 Don’t but FSA is something is less might do
Government Power Over Private Property Use—Zoning
Common Law Tools to Control Private Land Use
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Trespass: physical entry
Nuisance: unreasonable, unusual, or unnatural use of one’s property so that it
substantially impairs the right of another to enjoy his or her property
o Public Nuisance: usually an official representing the public
 (1) condition complained of has natural tendency to create danger/inflict
injury
 (2) danger created is continuing
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 (3) use of land was unreasonable or unlawful
 (4) nuisance was proximate cause of plaintiff’s injuries/damages
o Private Nuisance: affects the rights of a few, private individuals
 P must prove:
 (1) invasion of P’s use and enjoyment of P’s property;
 (2) D’s conduct was the proximate cause of the invasion; and
 (3) the invasion was intentional and unreasonable, or unintentional
and negligent or reckless
o Rest.2d. Property. Rule 822.
Concept of Zoning
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Unspoken premise: separation of different uses and putting similar uses together via
“zones” of uses
Purpose: to regulate how people use their property. Zoning tries to separate incompatible
uses
Key Consideration
o Density
 How many/how big will we allow in each area
Basic Types of Uses
o Residential
o Commercial/Retail
o Industrial
Uses are regulated by
o Zoning codes
 Tells you which uses are and are not allowed
o Area requirements
 Setback Requirements
 You house must be x no. of ft. from the road, limits how much of
the lot may be covered by building, height limits, yard size
Constitutionality of Zoning
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Zoning is exercise of police power to protect public welfare
Reasons are “sufficiently cogent to preclude use form saying . . . provisions are arbitrary
and unreasonable, having no substantial relation to the public health, safety, morals, or
general welfare
o Sounds like the Rational Basis Test
Limits on Zoning: Spot Zoning
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Zoning classifications can limit the value of zoned property
o Value Hierarchy
 Highest Value: Industrial use
 Large commercial/retail
 Small commercial/retail
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 High density apartments
 Low density apartments
 Lowest Value: Single family residential uses
When a zoning change allows uses higher on the hierarchy
o Upzoning
When a zone changes so that the allowed uses are lower on the hierarchy
o Downzoning
Spot Zoning
o Designed to affect one person’s interest often at the expense of the larger public
interest
o Burden to prove is on the P
Limits on Zoning: Disfavored Objectives
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Zoning power can be abused by exclusion
Notion of “Disfavored” Objectives
o Zoning can serve important public purposes
o Because zoning affects use of property power to zone can be misused/abused
o Such improper purposes are “disfavored”
Limits on Zoning: Nonconforming Uses/Vested Rights
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Nonconforming use: a use which prior to the new ordinance/provision, was allowed, but
after the new ordinance/provision, does not conform to the new ordinance/provision
3 possible ways to treat a nonconforming use after the ordinance/provision making it
nonconforming goes into affect:
o (1) apply the law and require the use to end immediately
 Potential issue: does it amount to a taking?
o (2) Not apply the law as long as the use continues
 Potential issue: inconsistent with zoning
 Potential issue: creates monopoly/preference
 Potential issue: defining what is means to continue (how does it end?)
o (3) Allow the use to continue from some period of time and then require it to end
(Amortization)
 Potential issue: defining the time period/end point
Amortization Periods
o A period of time granted to owners of nonconforming uses during which they
may phase out their operations as they see fit and make other arrangements
 Protects owner’s interest to maintain use of the property
o Test if valid:
 (1) whether it unreasonably inflicts substantial loss on the owner, or
 (2) whether it fails to comport to the reasonableness required by the due
process of law
Limits on Zoning: Variances
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Types of Variances
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o Area variance
 Use is allowed. Seeks to vary one or more requirements on such allowed
use
o Use variance
 Use is not allowed. Seeks to vary requirements so that the non-allowed use
would be allowed
 Harder to get because it is a more serious change
Variances: request to the zoning authority to modify rules
Variance can be granted if:
o (1) variance will not be contrary to public interest
o (2) special conditions exist such that literal enforcement of ordinance will result in
unnecessary hardship
 (1) application of ordinance interferes with owner’s reasonable use of
land, considering its unique setting
 (2) no fair and substantial relationship exists between general purposes of
ordinance and specific restrictions on the property
 (3) variance would not injure the public or private rights of others
o (3) Spirit of ordinance shall be observed
o (4) Substantial justice shall be done
Subdivision Planning
Putting Some Concepts Together
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