Bundle of sticks
o Right of control, enjoyment, exclusion, and dispossession
o Bundle of Sticksdifferent rights are given to people, you get some of
these rights but not all of them
Social Context
 Things are not the same when laws were made, need to adapt to current
circumstances
Judicial Role/ Institutional Competence
 Who should be making the decisions about property law? Is it appropriate for
the judiciary to get involved?
Overview
 Rights are claims, enforceable by state power, that others act in a certain
manner in relation to the right-holder.
 Privileges are permissions to act in a certain manner without being liable for
damages to others and without others being able to summon state power to
prevent those acts.
 Powers are state-enforced abilities to change legal entitlements held by oneself
or others, and immunities are security from having one’s own entitlements
changed by others.
o One has no-right if one does not have the power to summon the aid of
the state to alter or control the behavior of others. Duties refer to the
absence of permission to act in a certain manner. Disabilities are the
absence of power to alter legal entitlements, and liabilities refer to the
absence of immunity from having one’s own entitlements changed by
others.
 In thinking about legal rights, it is important to identify
o Who has the entitlement?
o Against which specific individuals does the entitlement run?
 And, what specific acts are encompassed by the entitlement?
CHAPTER 2
Possession
 Pierson v. Post: it is admitted that a fox is a wild animal and that property and
that property in such animals is acquired by occupancy only. (first in time
winsfirst in time to what? At what stage of the hunting?)
o Rule: actual bodily seizure is not indispensable to acquire right to or
possession of wild beasts. Rather the mortal wounding of such beasts
may be deemed possession of it because the pursuer manifests an
unequivocal intention of appropriating the animal to his individual use,
has deprived him of his natural liberty, and brought him within his
certain control.
 Notice (unequivocal intention to acquire that animal)
 Deprivation of property
 Control


Popov v. Hayashi
o Claim of conversion(1) you must have possession and ownership (2)
that someone stole this possession.
o Popov was only able to establish a qualified pre-possessory interest in
the ball. That interest does not establish a full right to possession that
is protected from a subsequent legitimate claim. (standard)
 Is applied in circumstances of uncertainty. Is an open ended
standard, looks at the context of the case.
 An award of the ball to Mr. Popov would be unfair to Mr.
Hayashi. It would be premised on the assumption that Mr.
Popov would have caught the ball. That assumption is not
supported by the facts. An award of the ball to Mr. Hayashi
would unfairly penalize Mr. Popov. It would be based on
the assumption that Mr. Popov would have dropped the
ball.(split the result)
o Constructive Possession: the doctrine of acquisition by possession does
not require continual possession, but rather clear marking of ownership
without abandonment of the property.
Elliff v. Texon Drilling
o Rule: the landowner is regarded as having absolute title in severalty to
the oil and gas in place beneath his land (first in time is applied to
natural resources)
 A landowner owns the oil/gas beneath her land
 A landowner is not liable if she drains oil/gas from beneath
another landowner’s land if it is in a common pool.
 Is a qualified rightdepends on who gets there first.
 (Elliff Addition) a landowner is liable for negligent or wasteful
destruction of oil and gas on someone else’s land (could be on the
hook for the value of everything in the common pool)
 You can acquire the natural resources of someone else’s
landcommon pool (because a neighbors natural resources can
migrate)
o Rule of Law or Capture:
 the owner of a tract of land acquires title to the oil or gas which
he produces from wells on his land, though part of the oil or gas
may have migrated from adjoining lands. He may thus
appropriate the oil and gas that have flowed from adjacent lands
without the consent of the owner of those lands, and without
incurring liability to him for drainage. The non-liability is based
upon the theory that after the drainage the title or property
interest of the former owner is gone.
o under the law of capture there is no liability for
reasonable and legitimate drainage from the
common pool. The landowner is privileged to sink as
many wells as he desires upon his tract of land and
extract therefrom and appropriate all the oil and gas
that he may produce, so long as he operates within
the spirit and purpose of conservation statutes and
orders of the Railroad Commission
 Wilcox v. Stroup: Possession and the Presumption of Title
o Rule: “[p]ossession of property is indicia of ownership, and a rebuttable
presumption exists that those in possession of property are rightly in
possession.”
 Shifts the burden of proof to the party not in possession of the
property.
 Where the party not in possession is able to establish superior
title by satisfactory evidence, the presumption gives way in favor
of this evidence. But where no such evidence is produced —
where, as here, the events at issue are impossible to reconstruct
— the presumption recognizes and averts the possibility of a
court’s presiding over a historical goose chase.
 the presumption of ownership in the possessor promotes stability.
 The presumption means that, absent proof to the contrary,
settled distributions and expectations will continue
undisturbed. Even where evidence overcomes the
presumption, other principles work to protect settled
expectations, including the statute of limitations, the
doctrine of adverse possession, and equitable defenses such
as laches, staleness, abandonment, and waiver.
 Doctrine of Accession (measure of damages)
o When a person uses her own labor or materials in good faith to
fundamentally transform another’s property, she acquires title to the
final product.
o She will still owe the original value of the other person’s property.(i.e.
original value of cells/timber.
Property and Sovereignty
 Sovereignty: an authoritative enforcement of rights to things
o Property delegates sovereign rights to owners—by creating control over
use of valuable resources, property gives owners legal control over other
individuals
 Johnson v. M’Intosh
o Doctrine of Discover: (first in time rule for European nations) The
absolute ultimate title has been considered as acquired by discovery,
subject only to the Indian title of occupancy, which title the discoverers
possessed the exclusive right of acquiring.
 Discovery applies to occupants, because the Natives are
inhabitants the discovery rule does not apply to them.
o The Natives have the right of occupancy but they can't transfer or sell
the land (bundle of sticks is operating hereright to be on the land, but
did not have the right to transfer or sell)
o The U.S. has the right of dominionright to extinguish occupancy either
by purchase or by conquering.
 First possession or occupancy: prevents disputes about title, preventing
latecomers from challenging those there first and encouraging individuals to
quickly find and claim useful property,
o Doesn’t work in Johnson because the Indians were the first occupants of
the land
 Labor and Investment: the defendants argue that the Indians did not acquire
the property rights because as hunters rather than farmers the lands occupied
were not used in such a manner as to prevent their being appropriated by a
people of cultivators.
 Efficiency and maximization of social welfare: farmers maximize overall social
welfare by engaging in the most productive use of the land.
o Property rights should be protected to assure to the cultivator the fruits
of his industry and so encourage productive labor and
o That property should be freely alienable because every alienation
imports advantage by transferring property from one who values it less
to one who values it more.
 Distributive Justice: claiming that the Indians do not have property rights in
their lands because it is a violation of the rights of others to exclude them from
the use of what we do not want and they have occasion for.
 Sovereign authority or might makes right? The discovery doctrine is the law
because the government in charge said so and the government has to have to
power to say who can acquire property rights and how.
Labor and Investment
 International News Service v. Associated Press
o Quasi right to property (in order to protect your business model you have
a quasi right to property that no one copies your news) here is that you
have a right that no one copies your news and the other person has a
duty to give credit when they copy someone’s work.
o The acquisition and transmission of news require elaborate organization
and a large expenditure of money, skill, and effort not only has news an
exchange value of the gatherer, dependent chiefly upon its novelty and
freshness the regularity of the service, its reputed reliability, and
thoroughness and its adaptability to the public needs.
o Property law focuses on the plaintiff and whether they have a right to
this property.
o Ins v. AP was abrogated by Erie v. Tompkins which held that federal
courts could not create common law where state law created the rule of
decision.

New York’s common law hot news tort requires three elements: (1) time
sensitive factual information, (2) free riding by a defendant, and (3) a threat to
the very existence of the product or service provided by the plaintiff(i.e. look
are they in the same market?).
o Example: NBA and Motorola are not competitorsNBA is showing
games, Motorola is in the business of cellphones, they are in different
markets. Therefore because they are not in the same market Motorola
is not a threat to the very existence of the product or service provided by
the plaintiff.
o It is time sensitive information
o Motorola is free riding
 Tragedy of the Commons Methodology (all the profits none of the costsnot
sharing the costs but consumine all the resources)
o Identify the public resource
o Identify why an individual would want to use that resource
o Identify the cost that is not internalized
o Identify the tragedy
 Negative Externalitiespeople driving their cars polluting the air
o Cost is not borne by the people consuming it (pasture example)
(overconsumption)
 Positive Externalitiesartists that are underpaid
o Benefits to consuming or transacting (underproduction)
Families
 Both custodial and non-custodial parents are required to support their children
at least to the age of majority and all states require some division of property
between spouses on divorce or death.
 Gifts and Inheritance
o A gift is a transfer of property from one person to another without
payment (no consideration)
o Intervivos gifts: are transfers from one living person to another living
person
o Testamentary Transfers: are those given at death through a valid will
or inheritance
o Property is transferred either by written will or in the absence of a will
by the terms of state law which is intestacy statute.
o Rule: The law of gifting requires
 (1) Intent to transfer title
 (2) Delivery of the property
 Requires either physical transfer of the object itself,
constructive, or symbolic delivery
o Ex. Of constructive if the owner of a locked box
gave the only key to the donee.
o Many states also allow a gift to be made through a
formal deed or indicated there present intent to

relinquish possession and to transfer title to the
donee.
 (3) Acceptance of the property by the donee.
Relativity of Title
o Finding lost property or possessing land even without official title to the
property will create rights against subsequent possessors but not
against the title owner.
o The General Rule (Armory v. Delamirie): that the finder of a jewel,
though he does not by such finding acquire an absolute property or
ownership yet he has such a property as will enable him to keep it
against all but the rightful owner.
 Finders will generally prevail against all subsequent possessors
of property except for the original(rightful) owner.
o Lost: property is lost when the owner accidently misplaced it.
o Mislaid: property is mislaid when the owner intentionally left it
somewhere and then forgets where she put it.
o Abandoned: property is abandoned when the owner forms an intent to
relinquish all rights in the property.
 Property that is lost or mislaid may subsequently be abandoned
if the owner intends to give up any claim to the property.
 Finders will lose against original owners of lost or mislaid
property, but will win against original owners of abandoned
property since the original owner relinquished her rights to it.
o If an object is found in a private home, it is generally awarded to the
homeowner. But if the object is found in a place open to the public, some
courts grant ownership to the finder and others to the landowner
o If personal property is found embedded in the soil, courts ordinarily
award the property whether lost, mislaid, or abandoned to the
landowner rather than the finder in the absence of agreement or statute
to the contrary, because it is a part of the real property.
 An exception is the doctrine of treasure trove, which is gold or
silver (and some courts also say paper money) buried or concealed
in antiquity or at least so long as to indicate that the owner is
probably dead or unknown
 Sale of property is not sale of the other(if found buried on
the land).
o Finder Statutes: Many states have legislation which gets rid of the
distinction of lost, mislaid, and abandoned and generally require the
finder to report the find to the police and generally award the property
to the finder if it is not claimed after a reasonable period, often requiring
the true owner to pay some percentage of the objects value as a reward
to the finder.
o Transfer of Stolen Property
 You can convey to someone else only what you own

Ex. If someone does not own Radio City Music Hall but
attempts to sell it to you by granting a deed you get exactly
what your grantor hadnothing
 Exception: When an owner voluntarily entrust another with
possession of her property the law sometimes gives the grantee
the power to transfer title to a bona fide purchaser. When a
possessor has the power to transfer title to a bona fide purchaser,
we say the possessor has the voidable title although the true
owner has the right to recover property from someone to whom
she entrusted the property; the law may give that possessor the
power to divest the true owner of title by transferring title to a
bona fide purchaser. (protects the bona fide purchaser because
they are also an innocent party, also look at whether the
merchant regularly deals with these type of goods.)
CHAPTER 3
Intellectual and Cultural Property
 Intangible Property
o Intellectual property law regulates control over the products of
intellectual effort
o Copyrights and Patents are governed by federal statutes
 Overview
o Copyright law grants exclusive rights in literary and artistic works (i.e.
original works of authorship)
o Trademark law grants exclusive rights in symbols that indicate the
source of goods or services
o Patent law protects inventions
 Utilitarian/Economic Theories
o Incentives creation Utilitarian theory for intellectual property law is
forward looking and based on incentives to act in way that enhance
social welfare. Where copying is not easy or where innovators can
recapture the value of their investment through the market advantages
of being the first mover the utilitarian argument does not offer much
support.
o Opposition Monopoly pricing will usually result in reduced
consumption of the invention by consumers willing to pay more than the
marginal cost of producing the goods.
 Labor and Investment (Lockean Theory)
o You should be paid for your creation The focus of this theory is on the
relationship between the innovator and her creation, Does the creation
comes from the innovator’s productive labor?
o This theory would justify protecting intellectual property rights for all
independent creators even those who are not the first to discover an
invention.
Builds on the premises of self-ownership and the original common
endowment of the world’s resources to the conclusion that people
should be entitled to the products of their own labor except where
doing so would make others worse off by failing to leave them
enough and as good of the common resources.
Personhood Theory (Hegelian Theory)
o Becomes the identity of the creator Through the creative process, the
inventor or creator’s very identity becomes bound up with the invention
or creation. This bond between the creator and her creation gives rise to
an entitlement to control the dissemination and use of the created work.
 However, there are a lot of ambiguities surrounding intellectual
borrowing.
Copyright Law
o applies to original works of authorship fixed in any tangible medium of
expression including literary, musical, dramatic, and pictorial works.
 It gives owners of the copyright the exclusive right to use or
authorize the use of the work for a limited time. After that the
work enters the public domain and can be copied by anyone.
 Copyright laws are designed to fulfill the constitutional
authorization to promote the progress of science and the useful
arts.
o Copyright protection lasts for the life of the author plus 70 years, after
which time the work becomes part of the public domain.
 With respect to works for hire, the copyright lasts for 95 years
from the date of first publication or 120 years from the date of
creation, whichever expires first.
o Copyright Test
 (1) Only original works of authorship are protected under the
Copyright Act
 Independent
creation
OR
Minimal
level
of
creativity/novelty
 (2) Work of Authorship
 Protected in Statute or similar to works protected in
statute
 i.e. usually includes literary, musical, dramatic,
pantomimes, pictorial graphic, sculptural, motion pictures,
sound recordings, and architectural works.
 (1) literary works;(2) musical works, including any
accompanying words;(3) dramatic works, including any
accompanying music;(4) pantomimes and choreographic
works;(5) pictorial, graphic, and sculptural works;(6)
motion pictures and other audiovisual works;(7) sound
recordings; and(8) architectural works.
 (3) Fixation




o
o
o
o
Permanent enough to be perceived, transmitted, OR
reproduced either directly or with the aid of a machine or
device.
Feist Publications v. Rural Telephone Service Co.
 (1) Facts are not copyrightable. The sine qua non of copyright is
originality. To qualify for copyright protection a work must be
original to the author. Facts do not owe their origin to an act of
authorship. The first person to find and report a particular fact
has not created the fact she has merely discovered its existence.
 (2) Factual compilations however may possess the requisite
originality. The compilation author typically chooses which facts
to include in what order to place them and how to arrange the
collected data so that they may be used effectively to readers.
 Collections of facts are not copyrightable per se. A compilation
like any other work is copyrightable only if it satisfies the
originality requirement (i.e. creation).
A person is liable for infringing a copyright when she violates any of the
exclusive rights of the copyright owner as provided in the sections
A person can be liable for contributory infringement when with the
knowledge of the infringing activity by others she induces, causes, or
materially contributes to it.
Copyright: Fair Use
 SunTrust Bank v. Hoghton Mifflin Co.
 Promotion Learning: copyright has always been used to
promote learning by guarding against censorship.
o The term “copy” was interpreted literallyan
author had the right only to prevent others from
copying and selling her particular literary work.
This limited right ensured that a maximum number
of new works would be created and published. In
1909 Act, codified the concept of derivative work,
that an author’s right to protect his original work
against imitation was established.
o The Copyright Act promotes public access to
knowledge because it provides an economic incentive
for authors to publish books and disseminate ideas
to the public.
 Copyright law has also extended to include
any work “fixed in any tangible medium of
expression.
 Protection of the Public Domain: The second goal of the
Copyright Clause is to ensure that works enter the public
domain after an author’s rights, exclusive, but limited have
expired.


o The limited time period of the copyright serves the
dual purpose of ensuring that the work will enter the
public domain and ensuring that the author has
received a fair return for her labors.
 This limited grant is intended to motivate the
creative activity of authors by the provision of
a special reward and to allow the public access
to the products of their genius after the
limited period of exclusive control has
expired.
Exclusive Rights of Author
o Grants the author limited exclusive rights in order
to encourage the creation of original works.
 An author has state common law protection
that persisted until the moment of general
publication. After the work was published the
author was entitled to federal statutory
copyright protection if she had complied with
certain federal requirements. If, not the work
was released into the public domain. The
system illustrates that the author’s
ownership is in the copyright and not in the
work itself.
To determine Fair Use protection, look at four factors:
o (1) purpose and character of the work
 Does it serve a commercial purpose or
nonprofit educational purpose?
 TWDG is a commercial purposethis
weighs against a finding of fair use.
 Is it transformative?
 The more transformative the new work
the less will be the significance of other
factors.
 Does it add a new meaning or message
to the work?
o TWDG is providing a critical
statement that seeks to rebut
and destroy the perspective,
judgments in GWTW.
 If you were just using the work to make
money it will weigh against a finding of fair
use however if you are transforming it then it
is likely that it is finding for fair use.
o (2) Nature of the copyrighted material
Original, creative works are afforded greater
protection than derivative works or factual
compilations.
 Original vs. Derivative
 This work is a parody so you have to
use the original work (could be an
exception in some ways)
o (3) Amount and Substantiality of the Portion Used
 Looks at the amount and substantiality of the
portion used in relation to the copyrighted
work as a whole. (i.e. the more the use the
worse off you are for a finding of fair use)
 Parody must be able to conjure up at least
enough of the original work to make the object
of its critical wit recognizable.
o (4) Effect on the Market Value of the Original
 Looks also at the potential harm that
derivatives may cause on original works.
 Market substitution?
 Appropriateness of Injunctive Relief
 Must prove that (1) a substantial likelihood of success on
the merits, (2) a substantial threat of irreparable injury if
the injunction were not granted (3) that the threatened
injury to the plaintiff outweighs the harm an injunction
may cause the defendant and (4) that granting the
injunction would not disserve the public interest.
o The Union of Copyright and the First Amendment
 The copyright and the First Amendment were drafted together to
prevent private censorship
 The Idea/Expression Dichotomy
 Copyright cannot protect an idea, only the expression of
that idea. Copyright assures authors the right to their
original expression by encourages others to build freely
upon the ideas and information conveyed by the work.
 This encourages open debate and free exchange of ideas.
 A new author may use or discuss the idea, but must do so
using her own original expression.
 Fair Use
 Fair use was a judge made right developed to preserve the
constitutionality of copyright legislation by protecting
Amendment values.
 They allow later authors to use a previous author’s
copyright to introduce new ideas or concepts to the public.



Included in the definition of fair use are “purposes such as
criticism, comment, news reporting, teach…scholarship or
research.”
 Because the First Amendment principles are built into
copyright law through the idea. Expression dichotomy and
the doctrine of fair use, courts often need not entertain
related First Amendment arguments in a copyright case.
 Copyright does not immunize a work from comment and criticism.
The narrower question is to what extent a critic may use the
protected elements of an original work of authorship to
communicate her criticism without copyright infringement.
o Moral Rightsthe theory of personhood relates to thisartists put their
heart and soul into these works, it’s their vision and it shouldn’t be
destroyed or mutilated
 In many European countries artists have the right to prevent the
mutilation or alteration of their artworks after the works have
been sold.
 In 1990 Congress passed the Visual Rights Act granting living
artists rights to protect works of visual art unless the works are
made for hire or are applied art.
 In general you cannot sell moral rights
 Owners of buildings can remove works of art such as
murals, floor mosaics, or architectural components if they
can do so without destroying or mutilating them as long as
they make a good faith effort to notify the artists.
 The right is lost if the artist fails to remove the work or pay
for its removal.
Patent Law
o may be issued to anyone who invents or discovers any new and useful
process, machine, manufacture, or composition of matter, or any new
and useful improvement.
 Protection in patent law depends on registration of the invention;
before issuing a patent, the U.S. Patent and Trademark Office
must determine that the subject of the patent is both new and
non-obvious.
 REMEMBER you cannot patent genes or laws of physics, however
you can patent genetically modified things if it satisfies the patent
test.
o Patent laws are designed to fulfill the constitutional authorization to
promote the progress of science and the useful arts.
o Grants inventors of processes, machines, and compositions of matter a
monopoly over their inventions for up to 20 years.
 Patents are more useful and copyright protects more artistic
o Patents will be granted if the following are met:
(1) the subject matter of the invention must be patentable i.e. a
machine, method of manufacture, or composition of matter
(cannot be laws of nature, natural phenomena or abstract ideas)
 (2) the invention must be novel
 (3) nonobvious
 (4) useful and
 (5) enablement (fully and particularly described.)
o Laws of nature, natural phenomena, and abstract ideas are not
patentable. (Association for Molecular Pathology v. Myriad Genetics
Inc.)
 they are the basic tools of scientific and technological work’ ” that
lie beyond the domain of patent protection.
 there would be considerable danger that the grant of patents
would “tie up” the use of such tools and thereby “inhibit future
innovation premised upon them.
 You cannot have gene patents unless you modify and create
something new.
o Patents in living things: it is possible to obtain a patent in living things
such as bacteria or plant varieties. The key is the organism must not be
naturally occurring it must instead be the product of human
manipulation and satisfy the general requirements of patentability.
o Patent Remedies
 A plaintiff seeking permanent injunction must satisfy a four
factor test: (1) that it has suffered an irreparable injury (2) that
remedies available at law such as monetary damages are
inadequate to compensate for that injury (3) that considering the
balance of hardships between the plaintiff and defendant, a
remedy in equity is warrants and (4) that the public interest
would not be disserved by a permanent injunction.
 The right to exclude does not naturally entail injunctive
relief. Is specific to the case, have to look at the facts
o Patent Trolls: make money by purchasing patents, waiting for
industries to develop around the technology covered by the patent and
then approaching industry participants to demand licensing fees in
exchange for a promise not to sue for copyright infringement.
Trademark Law
o protects non-functional words, symbols, names, and devices used to
identify one’s goods and services. Trademark does not bar uses of the
mark that would not deceive consumers or dilute the value of the mark
for the owner. (is a way for merchants to distinguish their goods)
o Trademark Law is primarily based on state common law not federal
statute. The current federal trademark act is called the Lanham Act
which provides for the registration of trademarks created by state law
along with some rights that may supplement or displace state law.


Trademark law gives the owner of the “mark” the exclusive right
to use it in connection with the sale of a particular good or service
in a particular arear. This protects the consumer from the
confusion resulting from different companies using the same or
similar names.
 Trademark law does not give consumers a legal claim. Only a
company that is using the mark may sue to prevent competitors
from appropriating the goodwill associated with its mark.
 Failure to use a mark for a long time may constitute
abandonment of it.
 For abandonment you must hove non-use of the trademark
as well as an intent to abandon it. However failure to use
a trademark for an extended period will by itself constitute
evidence of intent to abandon the mark.
 The Lantham Act treats non use for two years as prima
facie evidence of abandonment.
o Words that describe goods generally (generic names) cannot be
trademarked both because they are unlikely to signal a particular maker
and because competitors are likely to need to use those words to sell
their goods.
o Qualitex Co. v. Jacobson Products Co.
 Under the Lanham Act
 Trademarks include any word, name, symbol, or device, or
any combination.
 This language is not restrictive.
 A color is also capable of satisfying the statute because they
could intent to use it to distinguish and identify their
products including a unique product.
 Fanciful, arbitrary, or suggestive words or designs which
automatically tell a customer that they refer to a brand can be
trademarked.
 Customers over time may treat a particular colon on a
product or its packaging as signifying a brand(secondary
meaning)
 Trademark Test
 (1) In principle, trademark law, by preventing others from
copying a source identifying mark reduces the customers
costs of shopping and making purchasing decisions for it
quickly and easily assures a potential customer that this
item with this mark is made by the same producer as other
similarly marked items. Customers over time may treat a
particular color on a product or its packaging as signifying
a brand (is there a secondary meaning?).




(2) The functionality doctrine prevents trademark law
which seeks to promote competition by allowing a producer
to control a useful product feature (can’t trademark
something that is functional to the product because then
no one else would be able to create that product).
o Generic Nameyou can’t trademark generic names because they
become the name of the good ( ex. kleenex or scotch tape)
 When a product loses the meaning between the brand and the
product
o Use it or lose itIf you stop using the trademark then you may lose it.
o Tarnishment or BlurringA mark may be diluted by either
tarnishment or blurring.
 Tarnishmentoccurs if a company sells inferior quality products.
 Blurringoccurs when a distinctive mark begins to lose its
association with a particular company.
 The Lanham Act was amended to protect owners of famous marks
against dilution of the distinctive quality of the mark by giving
them the right to obtain injunctive relief against competition uses
even in the absence of consumer confusion.
o Anticybersquatting Consumer Protection Actprohibts anyone from
registering or using a domain name with bad faith intent to profit from
another’s trademark.
Publicity Rights (if someone is profiting off your image or person you should be
able to stop it)
o Martin Luther King Center v. American Heritage Products
 The right to publicity is defined as a celebrity’s right to the
exclusive use of his/her name and likeness.
 The right of publicity is assignable during the life of the celebrity
and survives the death of its owner and is inheritable and
devisable.
 Recognition of the right of publicity rewards and encourage
effort and creativity. If the right were to die with the
celebrity the economic value of the right during life would
be diminished.
 a person who avoids exploitation during life is entitled to have his
image protected against exploitation after death just as much if
not more than a person who exploited his image during life.
o Look at Concurrence: community standards
Cultural Property
o The law has spurred adoption of rules to prevent import and export of
cultural property, and efforts to enforce older national laws prohibiting
removal of artifacts.
o Cultural nationalismEx. They were created in Greece by Greek artists
for the civic and religious purposes of the Athens of that time therefore
it should be returned to Greece and belongs to the Greeks. (calls for the
return of cultural property)
 Is based on the relation between cultural property and cultural
definition
o [I]f the legal and moral arguments are treated as evenly balanced, and
if the argument from nationalism is also inconclusive, are there
considerations from the point of view of cultural internationalism
 Preservation takes priority
 a concern for an appropriate international distribution of the
common cultural heritage, so that all of mankind has a
reasonable opportunity for access to its own and other people’s
cultural achievements.
o Schultz says we should respect the laws of other countries (i.e Egypt’s
laws)
o Elgin Marbles should we return it?
 I as a person (representative culture) have a claim to this
property. However some people consider it as a universal art that
doesn’t belong to just one group of people.
CHAPTER 4
Human Beings and Human Bodies
 Property Rights in Human Beings
o Dred Scott v. Sanford[The] right of property in a slave is distinctly and
expressly affirmed in the Constitution. The right to traffic in it, like an
ordinary article of merchandise and property, was guaranteed to the
citizens of the United States, in every State that might desire it, for
twenty years. And the Government in express terms is pledged to
protect it in all future time, if the slave escapes from his owner.
 Dred Scott is known for invalidating the Missouri Compromise,
which had outlawed slavery in the territories, and for Chief
Justice Taney’s conclusion that African Americans were not
“citizens” as defined in the federal Constitution.
 There are fundamental contradictions in the Constitution.
 Also looks at legal realismthe judge found the interpretation for
the outcome he wanted to achieve.
 Children
o In the Matter of Baby M
 Conflict with Statutory Provisions
 (1) laws prohibiting the use of money in connection with
adoptions;
o Exploitation of children
 (2) laws requiring proof of parental unfitness or
abandonment before termination of parental rights is
ordered or an adoption is granted; and

(3) laws that make surrender of custody and consent to
adoption revocable in private placement adoptions.
 Public Policy Considerations
 The surrogacy contract is based on principles that are
directly contrary to the objectives of our laws. It guarantees
the separation of a child from its mother; it looks to
adoption regardless of suitability; it totally ignores the
child; it takes the child from the mother regardless of her
wishes and her maternal fitness; and it does all of this, it
accomplishes all of its goals, through the use of money.
o Are Body Parts Property?
 Do not have property rights on those cells removed from you, but
they have to be removed in good faith.
 The patented cell line and the products derived from it — cannot
be Moore’s property. This is because the patented cell line is both
factually and legally distinct from the cells taken from Moore’s
body. Federal law permits the patenting of organisms that
represent the product of “human ingenuity,” but not naturally
occurring organisms.
 Dissent: Human body is sacred and should not be marketed
 Should Conversion Liability be extended
 The first is protection of a competent patient’s right to
make autonomous medical decisions. . . . This policy weighs
in favor of providing a remedy to patients when physicians
act with undisclosed motives that may affect their
professional judgment.
 The second important policy consideration is that we not
threaten with disabling civil liability innocent parties who
are engaged in socially useful activities, such as
researchers who have no reason to believe that their use of
a particular cell sample is, or may be, against a donor’s
wishes.
o Research on human cells plays a critical role in
medical research.
o The extension of conversion law into this area will
hinder research by restricting access to the
necessary raw materials.
o If the scientific users of human cells are to be held
liable for failing to investigate the consensual
pedigree of their raw materials, we believe the
Legislature should make that decision.
o In a paired donation, the first donor is incompatible with the person to
whom she wants to donate her organ but is compatible with another
person who has a willing donor who is compatible with the first donor’s
recipient.
 The law also allows for several pairs of donors and recipients to
link together in a daisy chain of “paired donations” in order to
move organs from donors to compatible recipients. Sometimes,
chains can grow to include dozens of donors and recipients.
o Under the National Organ Transplant Act, 42 U.S.C. §274e, it is legal
to make a gift of an organ to a specific individual.
CHAPTER 1
Trespass the Right to Exclude and the Right to Access
 Trespass (right to exclude)
o Common Law Trespass Is an unprivileged, intentional, intrusion, on
property possessed by another,
 (1) Intent
 Is met if the defendant engaged in a voluntary act (i.e.
walking on the property). Mistaken entry on the land of
another does not relieve the trespasser of liability (intent
to cross boundary)
 Intent is not met if someone carries the trespass onto the
property against her will.
 (2) Intrusion
 Occurs the moment the non-owner enters the property.
“The gist of an action of trespass is infringement of the
right of possession.
o An intrusion may occur upon physical entry by a
person, an agent such as an employee, or an object
such as a building that extends over the boundary
onto a neighbor’s property. A trespass may occur
either above or below the surface.
o Ex. a well dug on one’s property that slants to an
area underneath the neighbor’s property constitutes
a trespass. Similarly, a second-story porch that
overhangs the neighbor’s property also qualifies as a
trespass.
 (3) Unprivileged
 A trespass is privileged and thus not wrongful if;
o (1) the entry is done with the consent of the owner;
o (2) the entry is justified by the necessity to prevent
a more serious harm to persons or property; or
o (3) the entry is otherwise encouraged by public
policy.
 Entry on property of another may be
privileged, for example, if one is doing so to


stop a crime or to help someone out of a
burning house.
 (4) Property of Another
o State v. Shack
 Criminal law trespass is different because you have to knowingly
cross the barrier after being told not to cross, which is different
from common law trespass where you just have to voluntarily
cross the border.
 Property rights serve human values. They are recognized to that
end, and are limited by it. Title to real property cannot include
dominion over the destiny of persons the owner permits to come
upon the premises.
 A man’s right in his real property of course is not absolute. It was
a maxim of the common law that one should so use his property
as not to injure the rights of others.
 we see 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. Hence representatives of
these agencies and organizations may enter upon the
premises to seek out the worker at his living quarters.
 There is a need for communication (need for legal advice)
and necessity(need for medical supplies)
Defense to Trespass
o Necessity
 If someone takes refuge on your property to escape a flood, as
happened in New Orleans during Hurricane Katrina, there is
no trespass. If a trespasser damages the property, the law
imposes on the trespasser a duty to compensate the owner for
the damage, but does not require the trespasser to pay for the
mere privilege of access.
o The right to roam: Today, about half the states still allow hunting on
private land unless the owner has posted “no trespassing” signs.
o Trespass to computer systems: The tort of trespass to chattels allows
owners of personal property to recover damages for intentional
interferences with the possession of personal property.
 Mere touching of the object is usually not sufficient to
constitute trespass; the plaintiff must either allege some
injury to the property or show either dispossession or
intentional “using or intermeddling” with it
Trespass Remedies
o Injunctions are available to remedy a trespass where the trespass is
continuous in nature.
A trespass is continuing where someone is personally present
on the land of another or where they leave some object (such
as a structure) on the land.
 Sometimes, courts will grant injunctions for trespasses that,
while not strictly continuous, are so repetitious that it would
put an unfair burden on the landowner to require her to bring
repeated lawsuits.
o Glavin v. Eckman
 Specifies that one who wilfully and without license cuts the
trees of another shall be liable in tort “for three times the
amount of the damages assessed therefor.” “The statute does
not prescribe how the damages shall be measured.” To deter
others.
 While the most common measures of damages are (1) the value
of timber wrongfully cut, or (2) the diminution in value of the
property as a result of the cutting, we discern no limitation in
the statute to these measures of damages. Indeed, to limit
damages to these measures would encourage, rather than
deter, wrongdoers from engaging in self-help in circumstances
such as when an ocean or other view is desired.
 Although diminution in market value is one way of
measuring damages, “market value does not in all cases
afford a correct measure of indemnity, and therefore is
not therefore ‘a universal test.
 “[r]eplacement or restoration costs have also been
allowed as a measure of damages . . . where diminution
in market value is unavailable or unsatisfactory as a
measure of damages.
o Jacque v. Steenberg Homes
 The United States Supreme Court has recognized that the
private landowner’s right to exclude others from his or her
land is “one of the most essential sticks in the bundle of rights
that are commonly characterized as property.”
 The law infers some damage from every direct entry upon the
land of another. The law recognizes actual harm in every
trespass to land whether or not compensatory damages are
awarded
 Society has an interest in punishing and deterring intentional
trespassers beyond that of protecting the interests of the
individual landowner. Society has an interest in preserving
the integrity of the legal system. Private landowners should
feel confident that wrongdoers who trespass upon their land
will be appropriately punished. When landowners have




confidence in the legal system, they are less likely to resort to
“self-help” remedies.
 We need to protect that right, right to exclude even if there are
no economic damages (protect the legal system)
Anti-Discriminationlegislative abrogation of right to exclude
o (1) ask whether the statute at question applies to the institution
(private vs. public accommodation)
o (2) does it apply to the institution’s behavior (did they discriminate
under the terms of the statute)
Civil Rights Act of 1964, Title II
o Prohibition Against Discrimination or Segregation in Places of Public
Accommodation
 (a) Equal Access
 (1) Discrimination
 (2) On the basis of race, color, religion, or national origin
o Not sex, sexual orienataion, or disability
 (3) Of any place of public accommodation
o Must fit into the list of facilities named or implied
o Must serve the public and not constitute a private
establishment… not in fact open to the public
o Must either “affect commerce” or “be supported by
state action.”
 any inn, hotel, motel, or other establishment
which provides lodging to transient guests,
other than an establishment located within a
building which contains not more than five
rooms for rent or hire and which is actually
occupied by the proprietor of such
establishment as his residence;
 any restaurant, cafeteria, lunchroom, lunch
counter, soda fountain, or other facility
principally engaged in selling food for
consumption on the premises, including, but
not limited to, any such facility located on the
premises of any retail establishment; or any
gasoline station;
 any motion picture house, theater, concert
hall, sports arena, stadium or other place of
exhibition or entertainment; and
The Civil Rights Act of 1964 was intended to rectify some aspects of the
enormous problem of racial segregation in the United States and was
passed after a long period of struggle that included sit-ins, demonstrations,
and litigation. An injured party may seek a court order requiring the


defendant to stop discriminating in access to public accommodations
covered by the act but may not seek damages.
New York Executive Law, Art. 15
o The term “place of public accommodation, resort or amusement” shall
include, except as hereinafter specified, all places included in the
meaning of such terms as: inns, taverns, road houses, hotels, motels,
o Such term shall not include . . . any institution, club or place of
accommodation which proves that it is in its nature distinctly
private.
o This statute provides a more fleshed out definition than the Civil
Rights Act.
o Also protects more groups than the Civil Rights Act (NY statute
protects sexual orientation, military status, sex, disability, and
marital status).
The right to be somewhere and the problem of Homelessness
o Pottinger v. City of Miami
 Having a right to do something (go to the bathroom), you need
to have a place to do it (need a place to go to the bathroom).
 an individual who loses his home as a result of economic hard
times or physical or mental illness exercises no more control
over these events than he would over a natural disaster.
 [A]rresting the homeless for harmless, involuntary, lifesustaining acts such as sleeping, sitting or eating in public is
cruel and unusual [punishment].
 class members rarely choose to be homeless. They become
homeless due to a variety of factors that are beyond their
control. In addition, plaintiffs do not have the choice, much
less the luxury, of being in the privacy of their own homes.
CHAPTER 5
Adverse Possession
 Adverse possession is a doctrine that allows a longtime occupant of someone
else’s land to obtain title to it. (what happens when you don’t use right to
exclude)
o enables one who has been in possession of a piece of real property for
more than x years to bring an action asserting that he is now the owner
of that piece of property even when title rests in another.
o allows a non-owner to acquire full ownership rights in real property if
the non-owner “actually possesses” property without permission by the
“true” owner (meaning the formal title holder) in a visible manner for
the period of time established by statute.
o adverse possession claims may be brought by the adverse possessor
herself in a lawsuit against the record owner to quiet title.
o Adverse possession claims may also arise as defenses to trespass or
ejectment claims by record owners. In ejectment lawsuits, the record
owner claims that the adverse possessor is wrongfully occupying her
property and seeks a court order ejecting the adverse possessor from the
property
o Elements:
 One who seeks to assert title to a tract of land under the doctrine
of adverse possession must prove each of the following elements
for the requisite statutory period:
 (1) That he has held the tract adversely or hostilely (means
that the use is non-permissive);
o Non permissive use (difference in jurisdictions
whether we need to look in the mind of the adverse
possessor (i.e. good faith, bad faith). Some
jurisdictions don’t look at the mind just need to know
if they had permission or not.
o Evidence was presented to show that the Fletchers
maintained the fence along the two-feet-wide tract,
and that the fence remained in place throughout
their ownership of the property.
o If someone is occupying another’s land with the
owner’s permission, the occupier cannot acquire the
land by adverse possession.
 To acquire adverse possession against a coowner, one must make an explicit statement
of intent to take possession of the entire
property by adverse possession; this is called
an ouster.
 (2) That the possession has been actual(physical presence
or use in some way);
o Blevins periodically repaired the fence surrounding
the two-feet-wide tract, that they routinely planted
a garden along the tract, and that the Blevins
constructed and maintained a shed along a portion
of the tract.
o Courts generally look at if they are using the land
resourcefully. Is it economically productive? Are you
there like the true owner would be? Don’t need to be
there 24 hours a day.
 (3) That it has been open and notorious (sometimes stated
in the cases as visible and obvious);
o the reputation of the two-feet-wide tract in the
community was that it belonged to the Blevins.




o Courts generally agree that the possessory acts must
be sufficiently visible and obvious to put a
reasonable owner on notice that her property is
being occupied by a non-owner. Have to provide
notice to the true owner, so that they can exercise
their right to exclude and eject you
(4) That possession has been exclusive (visits by the owner
can cause problems but it doesn’t necessarily bar
exclusivity;
o The defendants also testified that they had exclusive
control and dominion over the two-feet-wide tract up
until the time of this law suit.
o Generally means that the use is of a type that would
be expected of a true owner of the land in question
and that the adverse claimant’s possession cannot be
shared with the true owner. You are not sharing it
with the owner or public in general. Acting like the
true owner.
(5) That possession has been continuous(mimicking what a
true owner would do);
o the defendants testified that they maintained,
cultivated and claimed ownership of the two-feetwide tract up until the instant law suit.
o Means that the adverse possessor must exercise
control over the property in the ways customarily
pursued by owners of that type of property. Are you
continually occupying it or are you just coming in
every ten years? Are you using the land like it should
be used.
 (6) For the statutory period
o Were previous owners adverse possessors? Yes,
then could tack on their time Can use tacking
here. In privity with them (you have a legal
relationship with them (i.e. bought land from
them, you inherited the land from them)
o Principle of Tacking
 [t]o tack different adverse possessions to
make up the period of bar the persons
holding such possessions must be
connected by privity of title or claim.”
Some jurisdictions require (7) and (8), However most don’t
(7) That possession has been under claim of title or color of
title.

o Neither of them had actual title but the defendants
testified that they maintained, cultivated and
claimed ownership of the two-feet-wide tract up
until the instant law suit.
o An adverse possessor who has a deed that purports
to transfer the land in question but is ineffective to
transfer title because of a defect in the deed (such as
lack of a signature) or a defect in the process by
which the deed was issued (lack of notice to the
owner when the property is sold for failure to pay
property taxes, for example).(most states don’t use
this)
o You appear to have title(you have title in a defective
way) (faulty deedsomeone forgot to sign it)
 (8) Payment of Taxes
Adverse possessors state of mind:
 Four approaches exist. They include
 (i) an objective test based on possession (the rule in most
states); (majority view)
o An objective test makes the adverse possessor’s state
of mind irrelevant
o All that matters is that the possessor lacked
permission from the true owner (presume non
permissive use/or do you require the owner to say
not to be on the land)
 (ii) a claim of right; (Subj.)
o the adverse possessor must allege a “claim of right.”
o Actual occupation, use, and improvement of the
property by the claimant, as if he were in fact the
owner, is conduct that can prove a claim of right.”
 (iii) intentional dispossession; and (subj)
o the adverse possessor must know that she is
occupying property owned by someone else and must
intend to dispossess the true owner.
 (iv) good faith.(subj)
o a subjective test requires the adverse possessor to
prove a particular attitude on her part in addition to
showing that the true owner did not permit the
possession.
o In these jurisdictions, only innocent possessors —
those who mistakenly occupy property owned by
someone else — can acquire ownership by adverse
possession.
 (v.) Bad faith (subj.)


o is when you know that the land isn’t yours but you
decided to possess it anyways. jurisdictions that
allow this because the adverse possessor values the
land and if they are being resourceful and valuing
(punishing the absentee owner by giving the land to
the bad faith adverse possessor).
Justifications for Adverse Possession
o Economic Justifications
 (1) adverse possession “lowers the cost of establishing rightful
ownership claims by removing the risk that ownership will be
disputed on the basis of the distant past.
 By defining who is the lawful owner in the case of boundary
disputes, adverse possession doctrine both settles the
dispute and allows further transactions to take place.
 shorten[s] the period during which prospective purchasers
and lenders (both noted for their squeamishness) need
examine the state of the title.”
 (2) it “prevents valuable resources from being left idle for long
periods of time by specifying procedures for a productive user to
take title from an unproductive user.”
 . Those who do not use their property run the risk of losing
that property to an adverse possessor.
 (3) Because the encroaching adverse possessor has shown by her
actions that she values the strip more, it is therefore wealthmaximizing to transfer ownership to her.
o Justice and Fairness
 an object is “fungible” if “it is perfectly replaceable with money”;
it is “personal” if it “has become bound up with the personhood of
the holder and is no longer commensurate with money.” he
adverse possessor’s interest is “initially fungible” but “becomes
more and more personal as time passes.”
 Thus, adverse possession may be justified by the moral principle
of protecting reliance on relationships. The adverse possessor and
the true owner develop a kind of relationship based on the true
owner’s acquiescence in having her property occupied by the
adverse possessor.
Prescriptive Easements
o When the scope of the non-owner’s actions is limited to a narrow use of
another’s land rather than general possession of it, she may be granted
prescriptive easement rather than title by adverse possession.
 Easements are limited rights to use the property of another. (can
be or A or N)
 Affirmative: is the right to engage in a particular use of
another’s land.


o Affirmative easements but not negative easements
may be acquired by prescription
o Ex. Right of way: right to cross neighboring property
 Negative: is the right to limit or block a particular use of
another’s land.
o Ex. The right to prevent a neighbor from adding an
extra story onto her building.
o Community Feed Store Inc. v. Northeaster
 (1) When prescriptive use is claimed the law requires proof
similar to that needed to establish adverse possession under the
claim of right.
 (2) [T]he elements necessary to prove a prescriptive easement
 Difference between adverse possession and prescriptive
easement is that the plaintiff must show adverse use
(proven up above) rather adverse possession.
 (1) open, (2) notorious, and(3) hostile and continuous
over a fifteen year period in which fee owner has
acquiesced
o Adverse possession claims result in a transfer of title to the adverse
possessor
o Prescriptive easement claims result in the right to continue the kind
and amount of use that persisted during the statutory period.
o The Acquiescence requirement: acquiescence merely means that the
owner did not assert her right to exclude by bringing a trespass
action;
 For some courts it means that the landowner must have
known about the use and passively allowed it to continue
without formally granting permission.
Removal of Encroaching Structures
Many courts, especially in older cases, hold that a property owner has an
absolute right to an injunction ordering an encroaching structure removed,
no matter what the cost involved or the relative value of the properties or
the extent of the encroachment.
o The majority of states reject this rigid approach and adopted the
relative hardship doctrine.
 (1) If the encroachment is innocent (the result of a mistake),
the harm minimal, the interference in the true owner’s
property interests small, and the costs of removal substantial,
 the courts often refuse to grant an injunction ordering
removal of the structure. Instead, they will either order
the encroaching party to pay damages to the landowner
to compensate for the decrease in market value of the
owner’s land or order a forced sale of the property from
the landowner to the owner of the encroaching



structure with damages equal to the value of the land
taken and possibly a premium to compensate for the
involuntary nature of the transfer in ownership.
o Factors to be considered are
 whether the owner acted in good faith or
intentionally built on the adjacent land
and
 whether the hardship incurred in
removing the structure is disproportionate
to the harm caused by the encroachment.
Mere inconvenience and expense are not
sufficient to withhold injunctive relief. The
relative
hardship
must
be
disproportionate.
o Balancing must be done so that builders don’t
view the legal remedy as a license to engage in
private eminent domain.
 (2) If the cost of removal is not substantial or the interference
with the neighbor’s ability to use its property is substantial,
removal will still be ordered.
o Encroachment Remedies
 Option 1: an injunction ordering the structure removed.
 Option 2: No remedy to landowner, allowing encroachment to
remain in place.
 Option 3: Trespasser pays damages but gets easement or title to
occupied land
 Option 4: A purchased injunction where the property owner pays
for the costs of removing the encroachment.
o Courts usually go with 1 or 3
Some states have betterment statutes that allow owners to choose between
paying the builder the value of improvements built on their land or selling
the land on which the improvement sits to the builder. They generally allow
compensation only when the builder had color of title and believed in good
faith that the land was hers.
Adverse Possession of Personal Property
The statute of limitations for conversion begins to run when the property is
wrongfully taken (converted) and the owner dispossessed of the property.
o Discovery rule: when the true owner discovered who stole it/has it
o Demand rule: when the true owner demands the property
back(favors the true owner)
Chapter 6
Nuisance
 Is a substantial and unreasonable interference with the use or enjoyment
of land.
o Typical nuisance cases involve activities that are offensive,
physically to the senses and which by such offensives makes life
uncomfortable such as noise, order, smoke, dust, or even flies
 Nuisance Doctrine
o Is when your right to use has been harmed.
 Examples of Nuisances
o Pollution, noise, odors, criminal activity, excavation undermining
lateral support of neighboring land, flooding, and blocking access to
light and air.
 Nuisance cases ask
o (1) which party has the basic entitlement? Does the plaintiff have a
right to be secure from this kind of harm or does the defendant have
the right to engage in the activity?
o (2) What type of remedy should be given?
 Intentional nuisance
o Focuses primarily on the result of the conduct rather than the
conduct itself; the question is not whether the defendant’s conduct
was unreasonable but whether the interference suffered by the
plaintiff is unreasonable.
 Such interference is unreasonable under nuisance law if it
involves substantial harm that an owner should not have to
bear for the good of society.
 Nuisance Per Se
o Some activities may be so disfavored that they will be held to
constitute nuisances no matter where they take place of what
consequences they generate.
 Permanent Nuisance
o Either irreparably injures the plaintiff’s property or is of such a
character that it is likely to continue indefinitely; in such a case, the
statute of limitations for bringing a claim begins at the time the
nuisance begins.
 Temporary Nuisance
o Occurs intermittently or can be alleviated by changes in the
defendant’s conduct. For temporary nuisances, the claim accrues
anew upon each injury.
 Public Nuisance
o Is an unreasonable interference with a right common to the general
public
 Ex. Obstruction of a public highway
 Aesthetic Nuisance and Stigma


o The doctrine is broad enough to encompass any conduct that causes
unreasonable and substantial harm to the use and enjoyment of land.
o However courts remain reluctant to do so where the claim of harm is
based on a mere difference in taste.
o Courts seem more likely to find a visual nuisance where there is some
evidence of malice or spite.
Private Nuisance Elements***
o (1) Intentional (intentionally or knowingly)
o (2) Nontrespassory (there’s no physical entry on the landif you
can’t see it, it’s usually not physical)
o (3) Unreasonable (weigh the gravity of harm done to the plaintiffs
against the utility of the defendants use of the land and suitability of
the use in that location)
 To determine unreasonableness courts look at a lot of different
things to determine it. (look at Dobbs)
 Factors Courts consider
 The extent of the harm.
 The character of the harm.
 The economic and social value of the conflicting
activities.
 The suitability of the activities for the location
 Economic harm: decline in market value, tenants
leaving, etc.
 The ability of either party to avoid the conflict and the
practicability and fairness of making the party do so.(
who came first)
o (4) Substantial Interference (Can’t just be a minor disturbance)
 In determining whether the noise was substantial, the circuit
court had to consider the effect it would have on a normal
person of ordinary habits and sensibilities.
 Would it affect a normal person of reasonable standards?
o (5) Use and Enjoyment of Land (affects the use and enjoyment of the
land)
Dobbs v. Wiggins
o A private nuisance is a substantial invasion of another’s interest in
the use and enjoyment of his/her land. (reasonable person standard
is applied)
o In an action for a private nuisance, the Court must balance the harm
done to the plaintiffs against the benefit caused by the defendants
use of the land and the suitability of the use in that particular
location.
o Unreasonable: weigh the gravity of the harm done to the plaintiffs
against the utility of Wiggins’s kennels and the suitability of the
location of his kennels.
Defendant is engaged in a useful business: raising dog birds
Defendant is located in an area well suited for a dog kennel
Plaintiffs were located on their property before the Defendant
started his dog kennel
 Although the Defendant has made efforts, the barking of the
dogs cannot be reduced to a level that is not a substantial
invasion of Plaintiff’s lands and
 There is no practical way to modify the Defendant’s kennels to
stop the dogs from barking.
When answering these questions courts consider both fairness and welfare
o Fairness:
 The character of the harm: aesthetic harms are viewed as less
serious than health/safety concerns
 Distributive considerations: is it fair to make an individual
owner bear the costs of defendant’s socially beneficial activity,
or should those costs be spread around to the owner causing
the damage and its employees and customers?
 Fault: Is one of the owners engaged in a disfavored activity? Is
the conduct appropriate for the area? Did the plaintiff come to
the nuisance?
o Welfare
 Costs and benefits: The costs and benefits of allowing the
harmful conduct must be compared with the costs and benefits
of prohibiting it.
 Incentives: What effects will liability or immunity have on
incentives to engage in the respective activities? How will the
distribution of the burdens and benefits of conflicting land
uses affect incentives to invest in safety or to engage in
desirable economic activities?
 Lowest cost avoider: Which party can more cheaply avoid the
cost? Should this party also bear the burden of paying that
cost?
Nuisance Defenses
o (1) that the defendant got there first
 When the defendant comes to the nuisance, the courts assume
that you knew about the nuisance and were given notice.
o (2) The Plaintiff is too sensitive
 Unusual sensitivity. A reasonable person would find this
tolerable.
When to sue
o Not too early
 anticipatory nuisance governs lawsuits to bar a nuisance
before the challenged use is actually in place. Most courts
agree that a claimant seeking an injunction against a use that








is not yet in place must prove with near certainty that the use,
once in place, will constitute a nuisance.
o Not too late
 Look at statute of limitations for permanent (statute of
limitation begins at the time the nuisance begins) and
temporary nuisance. (accrues upon each injury)
Nuisance Remedies
o Property Rules (injunctionsis a stronger remedy)
 Fix an absolute entitlement either to engage in the conduct (no
liability) or to be secure from the harm (injunctive relief
ordering defendant to stop committing the harm)
 With property rules, the parties are free to bargain to give up
their rights to commit or be free from the harm. The price of
the entitlement would therefore be fixed by private bargaining
rather than by a court order. (looks at each person’s
bargaining power)
 Injunction: Plaintiff can get an injunction to stop the
defendant’s conduct(Plaintiff entitlement)
 No Nuisance: Defendant has the liberty to engage in the
conduct without liability. (Defendant Entitlement)
o Liability Rules (damages)
 Prohibit one party from interfering with the interests of the
other unless the party is willing to pay an amount determined
by a court of law or some other authoritative third party.
 (look at pg. 358 for chart)***
 If the plaintiff is entitled to be protected from the harm by a
liability rule, then defendant’s failure to prevent the harm
subjects the defendant to damages(however the defendant can
still continue).(Plaintiff entitlement)
 (conditional/purchased injunction) if defendant is entitled to
engage in the harmful activity, protecting that entitlement
with a liability rule means that the plaintiff will be able to
obtain an injunction stopping that activity if it compensates
the defendant for the economic losses associated with stopping
the activity (Defendant entitlement)
Boomer v. Atlantic Cement
o The public concern with air pollution arising from many sources in
industry and in transportation is currently accorded ever wider
recognition accompanied by a growing sense of responsibility in State
and Federal Governments to control it. Cement plants are obvious
sources of air pollution in the neighborhoods where they operate.
 Looks at the social benefits of the plantsemployed over 300
people and provided cement to the community.


o Effective control of air pollution is a problem presently far from
solution even with the full public and financial powers of
government. the amelioration of air pollution will depend on
technical research in great depth; on a carefully balanced
consideration of the economic impact of close regulation; and of the
actual effect on public health.(legislature should
 The total damage to plaintiffs’ properties is, however,
relatively small in comparison with the value of defendant’s
operation and with the consequences of the injunction which
plaintiffs seek.
o to grant the injunction unless defendant pays plaintiffs such
permanent damages as may be fixed by the court seems to do justice
between the contending parties. All of the attributions of economic
loss to the properties on which plaintiffs’ complaints are based will
have been redressed.
 It seems reasonable to think that the risk of being required to
pay permanent damages to injured property owners by cement
plant owners would itself be a reasonable effective spur to
research for improved techniques to minimize nuisance.
 [P]ermanent damages are allowed where the loss recoverable
would obviously be small as compared with the cost of removal
of the nuisance.
o Once permanent damages have been granted this would preclude
future recovery by the plaintiffs or their grantees.
Dissent: : In permitting the injunction to become inoperative upon the
payment of permanent damages, the majority is, in effect, licensing a
continuing wrong.
o once such permanent damages are assessed and paid, the incentive
to alleviate the wrong would be eliminated, thereby continuing air
pollution of an area without abatement.
o it is clearly established that the cement company is creating a
continuing air pollution nuisance primarily for its own private
interest with no public benefit.
 the promotion of the interests of the polluting cement company has, in
my opinion, no public use or benefit. Nor is it constitutionally
permissible to impose servitude on land, without consent of the owner,
by payment of permanent damages where the continuing impairment of
the land is for a private use.
Boomer Holding:
o Atlantic Cement’s behavior was reasonable on the social level in the
sense that it increased overall social utility, but the costs of the
defendant’s activity were not fairly distributed. The concentrated
nature of the harm generated by the defendant’s cement factory
violated the individual plaintiff’s right to security; the harm was

greater than any individual should be forced to bear for the good of
society. Requiring damages but not awarding an injunction,
therefore, was consistent with a determination that the activity was
efficient — it increased social utility to allow it to go forward because
its overall benefits vastly outweighed its costs (the stage 2 nuisance
inquiry) — but that the costs of the activity were unfairly distributed
(the stage 1 nuisance inquiry) — the plaintiff’s property interests
were being unfairly sacrificed. Resorting to a damages remedy where
the costs of an injunction would be too high (relative to the benefit it
would generate) gives courts a way to recompense the wrong being
perpetrated on the plaintiff while allowing a socially valuable use to
continue.
 provides for damages when “the harm caused by the conduct
is serious and the financial burden of compensating for this
and similar harm to others would not make the continuation
of the conduct not feasible.”
Trespass v. Nuisance: Some courts have tried to distinguish trespass from
nuisance by arguing that a trespass must be “direct,” such as a bullet fired
across land, and that smoke particles carried by the wind constitute an
“indirect” invasion and therefore do not qualify as an intentional invasion.
o the interest being protected by trespass law is the plaintiff’s
possessory interest in the land. Nuisance concerns one owner’s use
of her own land that interferes with her neighbor’s use and
enjoyment of his property. The interest being protected is not the
right to exclusive possession but instead the right to quiet enjoyment
of the land.
o In Bradley the court found that a trespass could occur only if the
particles fell to the ground and stayed there rather than dissipating
through the air. Second, the court held that liability for trespass by
such particles could be found only if plaintiffs could prove substantial
damage.
o Particulates can be trespassory if it is reasonably foreseeable and
substantial
o Ex. Johnson v. Paynesville Farmers
 The Johnsons’ claim is that the Cooperative’s actions have
prevented them from using their land as an organic farm, not
that any action of the Cooperative has prevented the Johnsons
from possessing any part of their land. The Johnsons’ claim is
one for nuisance, not trespass. We therefore hold that the
district court did not err in concluding that the Johnsons’
trespass claim failed as a matter of law.
 air pollution involves the physical invasion of land by smoke
particles, but it has usually been characterized as a nuisance
rather than a trespass. And courts have sometimes used


principles drawn from nuisance law to analyze whether an
injunction is the appropriate for repeated, low-grade
trespasses.
 the interest being protected by trespass law is the plaintiff’s
possessory interest in the land. Nuisance concerns one owner’s
use of her own land that interferes with her neighbor’s use and
enjoyment of his property. The interest being protected is not
the right to exclusive possession but instead the right to quiet
enjoyment of the land.
Fontainebleau Hotel v. Forty-Five
o There being, then, no legal right to the free flow of light and air from
the adjoining land, it is universally held that where a structure
serves a useful and beneficial purpose, it does not give rise to a cause
of action, either for damages or for an injunction even though it
causes injury to another by cutting off the light and air and
interfering with the view that would otherwise be available over
adjoining land in its natural state, regardless of the fact that the
structure may have been erected partly for spite.(i.e. spite fences).
 Ask is it socially useful?
o Courts should not decide, the legislature should decide.
Prah v. Maretti
o Under the doctrine of ancient lights if the landowner had received
sunlight across adjoining property for a specified period of time, the
landowner was entitled to continue to receive unobstructed access to
sunlight across the adjoining property. Under the doctrine the
landowner acquired a negative prescriptive easement and could
prevent the adjoining landowner from obstructing access to light.
 If an activity is motivated by malice it lacks utility and the
harm it causes others outweighs any social values. . . . Thus a
landowner’s interest in sunlight has been protected in this
country by common law private nuisance law
o Obsolete Policy Considerations
 (1) the right of landowners to use their property as they
wished, as long as they did not cause physical damage to a
neighbor, was jealously guarded.
 society has increasingly regulated the use of land by the
landowner for the general welfare.
 (2) sunlight was valued only for aesthetic enjoyment or as
illumination. Since artificial light could be used for
illumination, loss of sunlight was at most a personal
annoyance which was given little, if any, weight by society.
 access to sunlight has taken on a new significance in
recent years. Access to sunlight as an energy source is
of significance both to the landowner who invests in
solar collectors and to a society which has an interest in
developing alternative sources of energy.
 (3) society had a significant interest in not restricting or
impeding land development.
o Majority: the policy of favoring unhindered private development in
an expanding economy is no longer in harmony with the realities of
our society. The need for easy and rapid development is not as great
today as it once was, while our perception of the value of sunlight as
a source of energy has increased significantly.
 Look at the social context and how it changed.
 Access to sunlight has an economic purpose now.
o This court has concluded that a landowner’s compliance with zoning
laws does not automatically bar a nuisance claim.
 Dissent:
o I firmly believe that a landowner’s right to use his property within
the limits of ordinances, statutes, and restrictions of record where
such use is necessary to serve his legitimate needs is a fundamental
precept of a free society which this court should strive to uphold.
o any policy decisions in this area are best left for the legislature.
“What is desirable’ or advisable’ or ought to be’ is a question of policy,
not a question of fact.
 Relates to the bundle of sticks Property rights, if you want
to build you should be able to build
 Solar power collectors are unusually sensitive.
 Light and Air: The vast majority of courts in the United States would hold
that, in the absence of an agreement to the contrary, owners have absolute
rights to develop their property without liability for any interference with
their neighbor’s interests in light and air.
o One exception to this principle is that some courts will enjoin “spite
fences” — structures that are erected for the sole purpose of
maliciously harming the neighbor by interfering with her access to
sunlight.
 Solar Shade statutes: California has passed a statute called the Solar Shade
Control Act, Cal. Pub. Res. §§25980-25986, which provides that “[a]fter the
installation of a solar collector, a person owning or in control of another
property shall not allow a tree or shrub to be placed or, if placed, to grow on
that property so as to cast a shadow greater than 10 percent of the collector
absorption area upon that solar collector surface.
Chapter 8
Servitudes
 Servitudes may be either affirmative or negative
o Affirmative servitudes are rights to use another’s land for a limited
purpose. Affirmative servitudes are usually called easements. The
most common kind of easement is the right way and the right to use
another’s land for ingress or egress.
 Easements are non-possessory rights to use another’s land
that run with the land.
Express Easement
(1) In writing (Statute of
Frauds requirement).
The required writing is
the original writing
creating the easement.
(2) Has to provide notice.
There are three kinds of
notice: actual notice (in
fact know of the
existence of the
easement), inquiry notice
(visible signs of use by
non-owners i.e. telephone
poles), constructive
notice (if a reasonable
search would lead to
discovery).
(3) Intent for the easement
to run with the land.
(appurtenantattached
to the land). Where it is
ambiguous the court in
Green assumes it runs
with the land because it
is simple, and increases
the value of the land
(utilitarian argument)

Easement by
Prescription (open
use)
(1) Adverse use
(2) Actual
(3) Open and
notorious
(4) Exclusive
(5) Continuous
(6) Statutory
period
Easement by
Estoppel
Implied from Prior
Use
(1) Permission.
From the owner
to use the land.
(2) Foreseeable
and reasonable
reliance on
continuation of
the permission.
(3) Changed
position by the
claimant.
Changed
permission on
the reliance.
(usually
through
significant
expenditures)
(4) Injustice.
Finding an
easement is
necessary to
prevent
injustice
(1) Common
Ownership (two
parcels were
previously
owned by a
common
grantor)
(2) One parcel was
previously used
for the benefit
of the other
parcel. (rights
exercised prior
to the
severance of
the estate)
(3) Use is
reasonably
necessary or
convenient
Easement by Necessity
(1) Common ownership
(the dominant and
servient estates were
formerly one parcel)
(2) At the time of
severance the
dominant estate
became landlocked.
Terminology
o Dominant/benefited land v. Servient/Burdened Land
 Dominant land is the land that gets the easement(benefit)
 Servient land is the land providing to the dominant estate
(burdened)
 Servitudes may also be in gross, meaning that the benefit of
the servitude is held by a particular individual or entity rather
than running with a parcel of land(ex. Right to run utility lines
on land(in contract/does not bind future owners of the land or
benefit future owners of the land)).
 If an easement in gross is for personal convenience or
enjoyment — for example, a right to swim in a private
lake — courts may rule that the grantor did not intend
the easement to be transferable to others.
 Problem pg. 523:
o In gross: addressed to a specific person


o Appurtenant: “says on behalf of myself and my
heirs” which provides support that it was meant
to be passed down.
 Ambiguous: could have included
whether it is appurtenant or in
gross
o Balance of Policy Concerns
 Do formal requirements for creation of servitudes help ensure
that the parties creating the servitude truly intend to bind the
land and that future owners have notice of the servitude’s
existence? Do rules for interpretation of ambiguous servitudes
further the presumed intent of the parties, prevent unfair
surprise, and ensure that the land serves public interests? Do
substantive restrictions on servitudes ensure that they increase
land value and do not undermine other important policy goals?
Finally, do rules for termination end servitudes that no longer
serve party intent or other interests or that unduly burden the
land?
Distinguishing between in gross from appurtenant easement
o The primary criteria: is the intent of the grantor( did they anticipate
that the land would be used in this way?)
 Clear language in the deed conveying the easement that describes
it as in gross or appurtenant will ordinarily answer the question
— unless surrounding circumstances admissible under the parol
evidence rule show that the grantee was misled or otherwise
treated unfairly.
 When the language in the deed is ambiguous, the court must look
to surrounding circumstances and to policy considerations.
 If the easement is one that would be useful separate from
ownership of neighboring land, such as a utility easement,
the courts are likely to hold that it was intended to be in
gross.
o If the easement has little or no utility separate from ownership of
neighboring land, and is useful to anyone who owns the parcel of land
benefited by the easement--courts are likely to hold that the
easement is appurtenant.
The courts generally hold that an appurtenant easement cannot be severed
from the land.
o An owner of the dominant estate who sells the land cannot retain the
benefit of the servitude while giving up the land; nor can the beneficiary
of the easement transfer the benefit of the easement to another while
retaining ownership of the dominant estate.
o Appurtenant easements pass automatically to whomever owns the
dominant estate and cannot be severed from ownership of that estate.

Modifying and Terminating Easements
o Easements last forever unless they are terminated by
 (1) agreement in writing (release of the easement by the holder);
 (2) by their own terms — for example, if the deed conveying the
easement expressly states that it is to last for ten years;
 (3) by merger, when the holder of the servient estate becomes the
owner of the dominant estate;
 (4) by abandonment, if it can be shown that the owner of the
easement, by her conduct, indicated an intent to abandon the
easement; or
 (5) by adverse possession or prescription by the owner of the
servient estate or by a third party. Sometimes courts terminate
easements (someone squats on your easement)
 (6) because of frustration of purpose
 (7) By a marketable title act: when the record is not kept up with
 Covenants
o Negative Servitudes are restrictions with respect to what owners can
do with their own land. Residential property may be subject to
servitudes not to use the property for commercial or multifamily
purposes. These are usually call covenants.
o Real Covenants regulate the manner in which a right or obligation is
created. (can be enforced by damages)
 Elements
 (1) Writing
o Want to put it in writing because it is something
that will run with the land (more than a year)
 Some states may require that the
restriction be specifically mentioned in the
deed or lease when individual lots are sold,
even if only by reference to the earlier
recorded declaration or plat. Most states,
however, find that a covenant in a priorrecorded declaration or plat meets the
writing requirement.
 (2) Intent (Intended to be binding on future tenants
o Intent to run with the land
 May be made explicit as it is in the
Neponsit deed with language declaring
that it is on behalf of the owner’s
“successors or assigns” or that the
covenant “runs with the land.”
 What happens if the deed or lease does not
include such language? Courts generally
hold that appurtenant covenants — those


benefitting
some
land
—
are
presumptively intended to run with the
benefited and burdened land.
 However, some courts require clear
evidence of intent to run.
(3) Touched and concerned the land (whatever the
restriction is, it has to affect the use and value of the
land.)
o The test is intended to identify the kinds of
obligations that should attach to the land rather
than the individuals making the agreement.
“Where the burdens and benefits created by the
covenant may exist independently from the
parties’ ownership interests in land, the covenant
does not touch and concern the land and will not
run with the land.”
o On the burden side, an obligation touches and
concerns the burdened estate if it affects the use
and enjoyment of the land.
o On the benefit side, an obligation touches and
concerns a dominant estate if it improves
enjoyment of that land or increases its market
value.
Privity of Estate(need both horizontal and vertical
privity)
o (1) Horizontal privity one piece of property is
burdened for the benefit of another
 regulates the relationship between the
original covenanting parties.(ex. this land
over here is burdened for the benefit of
another piece of property)
 Instantaneous privity
 Most courts in the United States
adopted an instantaneous privity
test, finding horizontal privity when
the covenant is created at the
moment the owner of one parcel
sells or transfers rights in the other
parcel. Thus, a covenant contained
in a deed of sale transferring a
property interest will satisfy the
horizontal privity requirement.
Similarly, a covenant in a lease
(transferring a leasehold) or a
mortgage (transferring a lien or
right to foreclose) will satisfy the
horizontal privity requirement.
 Exclusions
 Horizontal privity excludes(1)
agreements between neighbors that
are not part of a simultaneous
conveyance of another property
right; (2) agreements between
grantors and grantees that are not
made at the same time as the
conveyance of the property interest
burdened or benefited by the
covenant.
o Agreements that are between
neighbors can be examples of
an agreement that isn’t
binding on future owners
(will not run with the land)
o (2) Vertical Privity Current owner and future
owners relationship
 means that the original covenanting
parties transferred their interests to the
subsequent possessors of the parcel (ex.
the benefits and burdens pass to the
subsequent owners). It would include, for
example, sale, lease, inheritance, and
foreclosure, but not adverse possession,
because the prior owner did not formally
transfer her interest.
 Some states follow a strict vertical
privity standard, requiring that the
grantor does not retain any future
interests in the land. Thus vertical
privity would be present when an
owner sells her property but not
when she leases it.
 Others follow a relaxed vertical
privity standard, which would allow
covenants to run to all to those
assigned possession, such as
lessees.
o Equitable Servitudes
Are covenants that could enforced by injunction. (Check with
the jurisdiction on what damages are used to enforce.
 Elements
 (1) Writing
 (2) Intent to run with the land
 (3) Touch and Concern the land
 (4) Notice (fairness and justice, not coming with unclean
hands, did you know about it…)
o May be actual, inquiry, or constructive
 A buyer or lessee is on actual notice of the
covenant if he was actually told about it or
was otherwise made aware of it.
 The buyer or lessee is on inquiry notice,
sometimes called actual implied notice, if
the condition of the premises would make
a reasonable purchaser inquire about the
existence of a covenant.
 A buyer or lessee is said to be on
constructive notice if the restriction was
recorded within the registry of deeds and
could be found via a reasonable search of
the records prior to sale. A reasonable
purchaser is expected to search the title to
find out whether the property is burdened
by any land use restrictions.
o Restatement (is ab alternative but is not particularly influential)
 The Restatement proposes to abolish the distinction between
real covenants and equitable servitudes; abolish the privity
requirement; permit enforcement of covenants in gross; and
replace the touch and concern test with a review for
reasonableness that incorporates policy concerns.
 Resolving public policy claims requires balancing interests.
Resolving claims that a servitude violates public policy
requires assessing the impact of the servitude, identifying the
public interests that would be adversely affected by leaving
the servitude in force, and weighing the predictable harm
against the interests in enforcing the servitude.
 Only if the risks of social harm outweigh the benefits of
enforcing the servitude is the servitude likely to be held
invalid.
 Elements
 (1) Writing
 (2) Intent to run with the land
 (3) Notice

o Actual
o Inquiry
o Constructive
 (4) Reasonableness Test
o shifting the burden to those challenging
enforcement to prove that the requirement
violates public policy for reasons that include, but
are not limited to, that the servitude (1) is
arbitrary,
spiteful,
or
capricious;
(2)
unreasonably
burdens
a
fundamental
constitutional right; (3) imposes an unreasonable
restraint on alienation under §3.4 or §3.5; (4)
imposes an unreasonable restraint on trade or
competition under §3.6; or (5) is unconscionable
o
o Look at table on pg. 562***
o Neponsit v. Emigrant
 Regardless of the intention of the parties, a covenant will run
with the land and will be enforceable against a subsequent
purchaser of the land at the suit of one who claims the benefit
of the covenant, only if the covenant complies with certain
legal requirements.
 In holding that the covenant could be enforced, the court in
Neponist decided two enormously important questions for
residential developments: first, whether affirmative
covenants to pay fees for the benefit of common amenities in
the development touched and concerned the land—yes it does;
and second, whether property owners associations (rather
than individual owners themselves) were in privity of estate
and could enforce the restrictions—yes privity with anyone.
o In general, the original parties to a covenant will no longer have
rights or obligations under a covenant after they have sold the land
the covenant concerns.
 Benefits of covenants held in gross: (1) a court will likely
interpret the covenant to benefit the current owner of the land
and not prior possessors, unless the agreement contains
explicit language to the contrary (2) even when the language
of the covenant is clear, courts have traditionally refused to
impose the burden of a covenant on future owners of the
servient estate if the benefit of the covenant is held in gross,
meaning that it benefits an individual or entity rather than
land.
 Exceptionwhen covenants in gross are held by a government
entity or by a charity.

Remedies (injunctions vs. damages)
o The benefits of an injunction are that the parties get to bargain to
determine who values the entitlement the most and to set the
appropriate price; they also avoid the time and expense of litigation
and the inaccuracy of damage awards set by a third party who is less
knowledgeable about the benefits of anticompetitive covenants and
their value to the parties than the parties themselves.
o The benefits of damages are that litigation can produce a result
where transaction costs might prevent the parties from bargaining
to a mutually beneficial result; indeed, the possibility that a jury
would determine the appropriate level of damages might be an
incentive to get the parties to agree to an appropriate resolution,
thereby promoting rather than discouraging bargaining.
o Nahrstedt v. Lakeside
 Some courts have adopted a standard under which a common
interest development’s recorded use restrictions will be
enforced so long as they are “reasonable.”
 we are of the view that our social fabric is best preserved if
courts uphold and enforce solemn written instruments that
embody the expectations of the parties rather than treat them
as “worthless paper” as the dissent would. (if recorded is
considered valid and given deference)
 the reasonableness or unreasonableness of a condominium use
restriction that the Legislature has made subject to section
1354 is to be determined not by reference to facts that are
specific to the objecting homeowner, but by reference to the
common interest development as a whole.
 Unreasonable: when, as here, a restriction is contained
in the declaration of the common interest development
and is recorded with the county recorder, the restriction
is presumed to be reasonable and will be enforced
uniformly against all residents of the common interest
development unless the restriction is (1) arbitrary, (2)
imposes burdens on the use of lands it affects that
substantially outweigh the restriction’s benefits to the
development’s residents, or (3) violates a fundamental
public policy.
 Nahrstedt Test
 Is the covenant in writing and recorded?
o If yes , then pro-covenant legal presumption
 Is the covenant:
o Arbitrary (not rationally related to protection,
preservation, or operation of the land)(have to be
wholly irrational to be considered arbitrary)



 Trying to preserve the land
o Violating a fundamental public policy
 Do not have a fundamental right to own a
cat.
o Imposing a burden on the use of the affected land
that far outweighs any benefit
 Analyze the covenant from the perspective of the
building rather than the individual objecting
homeowner.
o Dissent find the provision known as the “pet restriction” contained
in the covenants, conditions, and restrictions (CC & R’s) governing
the Lakeside Village project patently arbitrary and unreasonable
within the meaning of section 1354. More than simply embodying the
notion of having “one’s castle,” it represents the sense of freedom and
self-determination emblematic of our national character. Granted,
those who live in multi-unit developments cannot exercise this
freedom to the same extent possible on a large estate. But owning
pets that do not disturb the quiet enjoyment of others does not
reasonably come within this compromise.
Modifying and Terminating Covenants
o El Di Inc v. Town of Bethany Beach
 A court will not enforce a (1) restrictive covenant where a
fundamental change has occurred in the intended character of
the neighborhood that (2) renders the benefits underlying
imposition of the restrictions incapable of enjoyment.
 To permit unlimited “brown-bagging” but to prohibit
licensed sales of alcoholic liquor, under the
circumstances of this case, is inconsistent with any
reasonable application of the restriction and contrary to
public policy.
Covenants will not be enforced if conditions have changed so drastically
inside the neighborhood restricted by the covenants that enforcement will
be of no substantial benefit to the dominant estates,
o the change “must be so radical as to defeat the essential purpose of
the covenant or render the covenant valueless to the parties.”
Relative Hardship test
o Focuses on the servient estate
o Does a balancing testhow much of the burden should the servient
estate have to bear?
o A covenant will not be enforced if the harm caused by enforcement,
that is, the hardship to the owner of the servient estate, will be
greater by a “considerable magnitude” than the benefit to the owner
of the dominant estate
If the hardship is great and the benefit small, the courts may
refuse to enforce the covenant.
 If, however, the benefit of the covenant is substantial, the
courts are unlikely to apply the doctrine even if the hardship
to the servient estate is substantial.
Defenses to Covenants
o Acquiescence, Abandonment, or unclean hands
 has violated the covenant himself (unclean hands), or
 has tolerated previous violations of the covenant by the owner
of the servient estate (acquiescence), or
 has tolerated violations of the covenants by owners of other
restricted parcels in the neighborhood covered by the covenant
(abandonment).
o Estoppel
 An owner of a dominant estate who orally represents to the
owner of a servient estate that she will not enforce the
covenant may be estopped from asserting her interests in
enforcing the covenant if the owner of the servient estate
changes his position in reliance on the oral statement.
o Latches: sit on your rights for too long you can’t exercise them at a
later date
 If the covenant has been ignored or breached for a substantial
period of time — but less than the time necessary to establish
prescriptive rights — the court may find that unexcused delay
in enforcing the covenant prompted investment in reliance on
the failure to object to the violation and that enforcement of
the covenant would be unconscionable.
o Marketable title acts
 As with easements, many states have marketable title
statutes that terminate restrictive covenants if they are not
re-recorded after a specified period of time.
o Other ways to terminate covenants
 Language in instrument
 Merger
 Release
 Prescription
o The changed conditions doctrine may also apply when substantial
changes have occurred outside the restricted subdivision.
 Lots located on the fringe of the restricted area, however, may
not invoke the changed conditions doctrine, even if the
adjacent property is engaged in activity contrary to the
covenant, if it is still possible for the restrictions to create
benefit within the subdivision.



If lots on the border of the restricted area could easily free
themselves from the covenant, it would quickly lose its effect
over time as succeeding blocks of fringe lots succumbed to
external changes. The changed conditions doctrine is likely to
apply to changes outside the restricted subdivision only when
those changes have so adversely affected so many lots in the
subdivision that enforcement is pointless.
Chapter 7
Land Use Regulation: Origins, Authority, and Process
 Euclid v. Ambler Realty
o it must be said before the ordinance can be declared unconstitutional,
that such provisions are clearly arbitrary and unreasonable, having
no substantial relation to the public health, safety, morals, or general
welfare.
o Euclid Test: did the zoning committee have any good reason for
thisdeferential test.
 The Court in Euclid stated that “[i]f the validity of the legislative
classification for zoning purposes be fairly debatable, the legislative
judgment must be allowed to control.” Courts regularly invoke this
deference to legislative judgment when reviewing zoning ordinances.
 State governments, as the Supreme Court alluded to in Euclid, are the
ultimate repositories of the police power, the authority to regulate for
health, welfare, and safety. One of the major ways states regulate property
is by delegating power to local governments to regulate land use. States
delegate zoning power through legislation, often called zoning enabling
acts. The acts define both the scope of the powers delegated to local
governments and the procedures by which the zoning process operates.
o Voters in the local government elect a governing body, such as a city
council or county board of commissioners.
o The governing body is the legislative branch of government and has
the power to adopt local laws governing land use in the jurisdiction,
usually called zoning ordinances or by-laws. Many local governments
have an executive branch as well, under a mayor, county executive,
board of selectmen, or other forms, and departments within the
executive branch that enforce zoning codes.
o Zones are meant to be established in accordance with a rational
scheme for promoting development by separating incompatible uses;
many zoning enabling acts also require local governments to
establish a comprehensive plan for the jurisdiction as a whole.
 The comprehensive plan and the zoning ordinance itself are
generally prepared by a planning commission before adoption
by the local legislative body.
The commission is often aided by a planning department
composed of professional planners.
o Finally, most zoning enabling acts authorize municipalities to
delegate power to an administrative agency, often called the zoning
board or board of adjustment. This agency primarily serves to
evaluate requests for administrative relief from zoning requirements
Use zoning divides municipalities into districts and regulates the kinds of uses
allowed within each district. For example, some areas may allow only
agricultural uses; others may allow residential uses; still others may allow
commercial uses
Area zoning, by contrast, regulates the size of lots, the height of buildings,
requirements to set back structures a certain distance from property borders,
and other aspects of the physical configuration of the property.
o zoning ordinances also generally include a zoning map. The map is
necessary to show where specific zones are physically located in a given
jurisdiction.
Motivations for zoning Zoning is often justified, as it was in Euclid, as a
means of prospectively limiting the harms that might arise from the proximity
of incompatible land uses
Subdivision regulation. In many jurisdictions, an owner seeking to subdivide
a large parcel, for example to build a neighborhood of single-family homes,
must go through a rigorous review process
Another important regulatory regime involves housing, building, and
development codes. These codes focus on structural safety, the quality of
building materials, and public health concerns, such as ensuring sufficient
light and air in residential buildings.
Community benefit agreements that specify certain obligations for developers
regarding issues such as affordable housing, local jobs, and developmentimpact mitigation.
 SLAPP suitsstrategic lawsuits against public participation.
 Constraints on Zoning Authority to Protect Preexisting Property Rights
o When municipalities enact zoning codes, the legislation tends to follow
existing land use patterns.
o However, zoning may also require owners to phase out or change
existing uses, or may impose new rules in the middle of the development
process, as local governments recognize new concerns (or respond to new
pressures).
 Prior Non-Conforming Use
o Town of Belleville v. Parillo’s Inc.
 Historically, a nonconforming use has been looked upon as “a
use of land, buildings or premises that lawfully existed prior
to the enactment of a zoning ordinance and which is
maintained after the effective date of such ordinance even







though it does not comply with the use restrictions applicable
to the area in which it is situated.”
 Any nonconforming use or structure existing at the time of the
passage of an ordinance may be continued upon the lot or in
the structure so occupied and any such structure maybe
restored or repaired in the event of partial destruction thereof.
 Our courts have held that an existing nonconforming use will
be permitted to continue only if it is a continuance of
substantially the same kind of use as that to which the
premises were devoted at the time of the passage of the zoning
ordinance. In that regard nonconforming uses may not be
enlarged as of right except where the change is so negligible
or insubstantial that it does not warrant judicial or
administrative interference. Where there is doubt as to
whether an enlargement or change is substantial rather than
insubstantial, the courts have consistently declared that it is
to be resolved against the enlargement or change.
 Fundamental to that inquiry is an appraisal of the basic
character of the use, before and after the change.
 an increase in the time period during which a
nonconforming use is operated may justifiably be the
basis for finding an unlawful extension thereof, just as
changes in the functional use of the land or increases in
the area of use have been.”(Hantman v. Randolph)
o Pg. 445 Problem 2
 Daycaresame use?is for educational purposes, how would
it affect the community?--> it wouldn’t affect the community,
because it makes it more endearing, there won’t be more
traffic, etc. will it affect the residential character?--> it’s more
beneficial for a residential area to have a school nearby.
Insurance skyrocketed? Townsame use? No this is totally different because the
daycare center is a business(taking care of children), new use,
now teenagers will be dropped off, teenagers have more liberty
and may cause more traffic, or may be rowdier. How would it
affect the communitywant to have uniformity in the
neighborhood. Want it to be residential. Economicsthey
could sell the land and someone could build a house(there is
an alternative use).
o Zoning codes thus have to balance the rights of owners whose
established uses conflict with the orderly development of a
community and the expectations of neighbors who may be relying on
the general character of a neighborhood to be protected by zoning.
In most states, local governments may require nonconforming
uses to be phased out through a process called amortization.
 Amortization
local
governments
give
the
nonconforming owner a limited period of time to
continue the use. If this gives owners sufficient time to
realize a reasonable return on their investment, that
will balance the owner’s reliance interest with the
public’s needs represented in the zoning code.
Amortization periods can be fixed by statute, depending
on the nature of the property.
 They can also be set on a case-by-case basis, looking at
issues such as the depreciable value of the property and
an owner’s specific investment. Courts have upheld
both methods, but in so doing, generally look to whether
owners can obtain a reasonable return on their
investment, weighing public gain against private loss.
o In general, nonconforming uses may continue even where property
has been transferred from one owner to another.
 However, in Village of Valatie v. Smith, 632 N.E.2d 1264 (N.Y.
1994), the court upheld a provision that provided the right to
continue a nonconforming use would be terminated upon
transfer of the property.
o Limiting changes for non-conforming usesBelleville v. Parrillo’s
illustrates another way to balance an owner’s interest in continuing
a nonconforming use against the public interest in the zoning code,
by strictly limiting the owner to the use that existed at the time
zoning was imposed. An owner may then continue the nonconforming
use indefinitely.
o Abandonment and Destruction Under many zoning ordinances, if
a nonconforming use is abandoned or discontinued, the
nonconforming status is lost, even if the owner later attempts to
reestablish that use. The standard for abandonment or
discontinuance is generally defined by the relevant zoning code, most
of which are interpreted by courts to require proof of the owner’s
intent to abandon.
 Some courts require an overt act or failure to act that implies
abandonment, or may not require evidence of intent to
abandon if it can be shown that the non conforming use has
been discontinued for more than one year.
 If a nonconforming use is not abandoned, but substantially
damaged or destroyed, for example in a fire, most zoning
ordinances do not allow owners to rebuild.
Vested Rights
o The Problem of Exclusionary Zoning


Housing is a fundamental right and need.
 Right always creates an obligation on the other side.
The localities are obligated and owe that right to people
in the region. They have a responsibility to provide this
right to people in the region.
 Court held relief from the consequences of this tax
system will have to be furnished by other branches of
government. It cannot legitimately be accomplished by
restricting types of housing through the zoning process
in developing municipalities.
o Mount Laurel Doctrine is a minority rule
 EfficiencyIn recent years, many municipalities have
adopted linkage ordinances that condition real estate
development on either providing a certain percentage of
housing units for low-income persons or paying a tax to a
municipal fund for this purpose.
 Laws that exclude low-income housing from the
community arguably decrease social welfare by
attempting to create protected enclaves without
accounting for the externalities of limiting low-income
housing to urban areas.
 Both New Jersey and California employ “inclusionary”
zoning techniques such as set-asides and density
bonuses.
o Why didn’t they use Federal Law?--> One reason might have been
that the Supreme Court has interpreted the federal due process and
equal protection clauses to afford great latitude to local governments
in the absence of intentional discrimination.
o The Mount Laurel II court required municipalities to take
affirmative steps to encourage the development of housing for lowand moderate-income persons if the Mount Laurel obligations could
not otherwise be met. If municipalities failed to comply with the
constitutional mandate, courts were empowered to order affirmative
remedies, including government subsidies, incentives for private
developers to set aside a portion of their developments for low- and
moderate-income residents by relaxing various zoning restrictions,
and mandatory set-asides for developers.
 The court also authorized a “builder’s remedy,” which would
order a municipality to allow a developer to construct a
particular project that includes a substantial amount of lowerincome housing unless the “municipality establishes that
because of environmental or other substantial planning
concerns, the plaintiff’s proposed project is clearly contrary to
sound land use planning.”

o Anderson v. City of Issaquah
 The “statement” Issaquah is apparently trying to make on its
“signature street” is not written in the code. In order to be
enforceable, that “statement” must be written down in the
code, in understandable terms.
 A]esthetic standards are an appropriate component of land
use governance. Whenever a community adopts such
standards they can and must be drafted to give clear guidance
to all parties concerned.
 Applicants must have an understandable statement of
what is expected from new construction. Design
professionals need to know in advance what standards
will be acceptable in a given community.
 It is unreasonable to expect applicants to pay for
repetitive revisions of plans in an effort to comply with
the unarticulated, unpublished “statements” a given
community may wish to make on or off its “signature
street.” It is equally unreasonable, and a deprivation of
due process, to expect or allow a design review board
such as the Issaquah Development Commission to
create standards on an ad hoc basis, during the design
review process.
Chapter 9
Concurrent, Entity, and Family Property
 Varieties of Common Ownership
o Property rights may be divided, with specific sticks in the bundle of
rights that make up property allocated to different persons or groups,
or with the right to all the sticks divided over time.
 Ex. Leaseholds provide an example of both divisions: the
tenant has the right to possess and control the property during
her lease, while the landlord has both the right to establish
conditions for use during the lease period and the future right
to possess the property after the lease ends.
o Concurrent ownership more than one person may have the right to
control the same thing at the same time.
 Ex. a wife and husband may together own a condominium
apartment in an urban building. In this arrangement each has
a concurrent right to possess the entire condominium unit.
They have to agree how the property will be used — whether
they will live in the condominium or rent it out to others, how
they will use each room, whom they will invite to dinner, and
so on. They also share with other condominium owners the
right to use common areas of the building. Disputes about the
use and condition of common areas — such as whether to pay

for a new roof — must be worked out in conjunction with the
other condominium owners.
o Family Property Rights(Familial relationships)Minor children, for
example, have a right to support from their noncustodial parents.
Marriage also has many consequences for property. In community
property states, rights to most property individually acquired during
marriage is shared equally with one’s spouse. In separate property
states, spouses have rights to each other’s property on divorce and
death.
o Entity Property beneficial use of the property is significantly
divided from rights to govern the property.
 Ex. corporation, in which vast numbers of shareholders own
shares in entities managed by others. Or common interest
development, in which hundreds or thousands of individuals
and families own units in developments managed by property
owners associations.
Forms of Concurrent Tenancies
Tenancy in Common
Creation
Default or you can
explicitly state it
(“tenants in
common”)
Joint Tenancy
Tenancy by the
Entirety
Traditionally can
only be created if
they share the four
unities of time, title,
interest, and
possession.
(1) The interest of
each joint tenant
must be created at
the same moment
in time
(2) All joint tenants
must acquire title
by the same
instrument or title
(joint tenancy does
not ordinarily
arise by intestate
succession)
(3) All joint tenants
must possess equal
fractional
undivided
interests in the
property and their
interest must last
the same amount
of time
Is only for married
couples, sometimes
the default( if giving
to a married couple)
and
sometimes
jurisdictions require
it to be explicitly
stated.
*is
not
in
all
jurisdictions but is in
most of them.
Survivorship
Unilateral
Termination
Unilateral
Encumbrance
(Can you use the
property as collateral,
lease it, use it as a
debt)
Terminology

(4) All joint tenants
must have the
right to possess
the entire parcel
No, does not
Yes, property interest
automatically pass to is immediately
your co-tenant if you
transferred to the
die.
remaining joint
tenants in equal
shares
Yes, have to go
Yes, Severance
through partition
occurs only between
(court divides it up).
the selling owner and
If this is not feasible
the remaining
or appropriate, the
owners; it does not
court will order the
change the relations
property to be sold
of the remaining
and the proceeds
owners among
divided among the co- themselves.
owners in proportion
to their ownership
shares.
Yes, closes form of co- Yes
ownership, don’t need
permission from your
co-owners.
-O devises Blackacre
to A and B (default)
-O devises Blackacre
to A and B as tenants
in common (explicit)
-O devises Blackacre
to A and B as joint
tenants with the
right of survivorship.
Ex. Joint bank
accounts
Yes, automatically
practices to your
spouse.
No, only on divorce or
death (very tied up in
the marriage
Varies, with most
jurisdictions saying
no. Most states
spouses cannot
encumber their
interest in property
held by the entirety
without each other’s
consent, and
creditors cannot
attach property held
through tenancy by
the entirety to satisfy
debts of one of the
spouses.
-O devises Blackacre
to A and B (default if
A and B are married)
-O devises Blackacre
to A and B as a
married couple and
tenants in the
entirety
Sharing Rights and Responsibilities Between Co-Owners
o Unless they agree by contract, co-tenants are entitled to share the
benefits of the property and obligated to share its burdens.




If there is a dispute, regarding these, a tenant can seek a
judicial accounting, either during co-ownership or in
determining division of proceeds in a partition action or
voluntary sale, to require their co-owners to pay their portions
of required expenses or to force co-owners to hand over profits
from the property.
(1) Possession: each co-owner has the right to possess the
entire parcel. If one co-owner chooses not to live there, in most
states the tenant in possession has no duty to pay rent to the
non-possessing tenant.
 Joint tenants and tenants in common only have a duty
to pay rent to their co-owners if the have committed
ousterwhich is an explicit act by which one co-owner
excludes other from the jointly owned property.
 Note: that the amount of rent owed is the fractional
share of the rental value owned by the co-owners out of
possession; a co-owner with a one-third interest in
possession would have to pay only two-thirds of the fair
rental value of the property to her co-owners out of
possession.
(2) Profits: co-owners are entitled to share any rents or other
profits from the property. The share of profits belonging to
each co-owner is based on that owner’s fractional interest in
the property. Tenants also share profits on sale or partition of
the property according to their respective fractional interests.
(each co-tenant has the right to rent and generate profits from
the property and is split amongst the co-owners by the shares
they own)
 Example: suppose A and B own a condominium unit as
tenants in common, with a one-quarter interest in A
and a three-quarters interest in B. They rent the unit
to C. A has a right to one-quarter of the rents paid by C,
and B has a right to three-quarters of the rents paid by
C, unless A and B agree otherwise.
(3) Burdens: Co-owners generally have a duty to share basic
expenses needed to keep the property, including mortgage
payments, property taxes and other assessments, and
property insurance, in accordance with their respective
shares. Co-owners generally also have a duty to share basic
maintenance and necessary repairs of the premises. (ex.
repairs, taxes)
 Some jurisdictions, however, require a tenant to provide
co-tenants with notice and opportunity to object to the
repairs in order to demand contribution.


Co-owners have no duty to share the costs of
improvements to the property unless they agree to do
so. Improving tenants may only claim the amount by
which the improvement increases the value of the
property at partition or sale. Thus tenants paying for
work on a property that is determined not to be
necessary may only demand contribution on sale or
partition, and then only up to the amount the work is
shown to improve the value of the property.
 In most states, a co-owner who exclusively possesses
the premises must bear the entire burden of expenses
(including taxes, repairs, and mortgage payments) if
the value of her occupation of the premises exceeds
those payments. If the share of expenses that would
ordinarily be borne by the tenants out of possession is
less than the rental value belonging to the tenants out
of possession, no action for contribution may be brought.
o This principle substantially qualifies the rule
that co-tenants who are occupying the premises
have no duty to pay rent to the co-owners who are
not occupying the property. Although a co-tenant
out of possession cannot sue a co-tenant in
possession for rent, a tenant in possession can
sue her co-tenants out of possession only for their
share of expenses that exceeds the fair rental
value to which they would be entitled if the
property were leased out to a third party.
Olivas v. Olivas (Rent and Possession)
o ordinarily a co-tenant incurs no obligation to fellow co-tenants by
being the exclusive occupant of the premises.
 [I]t is a well-settled principle of the common law that the mere
occupation by a tenant of the entire estate does not render him
liable to his co-tenant for the use and occupation of any part
of the common property.
o The right of each to occupy the premises is one of the incidents of a
tenancy in common. Neither tenant can lawfully exclude the other.
The occupation of one, so long as he does not exclude the other, is but
the exercise of a legal right. If, for any reason, one does not choose to
assert the right of common enjoyment, the other is not obliged to stay
out;
 The result is different when the occupant has ousted the other
co-tenants.
 the obligation of the occupying co-tenant to pay rent
may arise in the absence of “actual” ouster when the
realities of the situation, without there being any fault
by either co-tenant, prevent the co-tenants from
sharing occupancy.
 [B]efore a tenant in common can be liable to his cotenants for rent for the use and occupation of the
common property, his occupancy must be such as
amounts to a denial of the right of his co-tenants to
occupy the premises jointly with him, or the character
of the property must be such as to make such joint
occupancy impossible or impracticable.
o The court believes this situation is an ouster without any physical
act and perhaps without any fault. (constructive ouster)
 The court in the present case found that applying the notion
of constructive ouster in the marital context is a way of saying
that when the emotions of a divorce make it impossible for
spouses to continue to share the marital residence pending a
property division, the spouse who — often through mutual
agreement — therefore departs the residence may be entitled
to rent from the remaining spouse.
 Common law precedents support the proposition that
the remaining spouse should pay rent to the co-tenant
when both cannot be expected to live together on the
property. For example, when it is impractical for all cotenants to occupy the premises jointly, it is unnecessary
that those claiming rent from the co-tenant in
possession first demand the right to move in and occupy
the premises.
 The impracticality of joint occupancy by the co-tenants
may result from the relations between the co-tenants
becoming “so strained and bitter that they could not
continue to reside together in peace and concord.”
 If, however, hostility flows only from the co-tenant out of
possession, ordinarily there would be no constructive ouster.
 Ex. wife left home and refused to return despite
solicitation by husband). In that circumstance the
departing spouse has “abandoned” his or her interest in
possession, rather than being excluded.
 Some jurisdictions have created a rebuttable presumption of
ouster of the spouse who moves out of the former marital
residence upon divorce.
 Husband had the burden of proving constructive ouster in this
case.
o The court says there was ambiguity in the courts finding that the
defendant chose to move out. He could have left because of marital
friction which would be a finding for constructive ouster. Or he could
have abandoned the home to live with another woman. The court
chose the second option because in the case of uncertain, doubtful, or
ambiguous findings an appellate court is bound to indulge every
presumption to sustain the judgment.
Possible Ouster Rules
Traditional Ouster D octrine
Fault
Ouster
Constructive Ouster
N eeds/Resources




N o Fault
Different approaches to occupancy after divorce
o Some courts adopt a version of the constructive ouster doctrine to
require separated spouses to pay rent (equal to on-half the fair rental
value) to the spouse who is no longer living at home.
o Other courts, however, refuse to make an exception for marital property
and hold that co-tenants in possession have no duty to pay rent unless
they have affirmatively ousted their spouse by notifying them of an
intent to exclude them from the joint property.
Property Impracticable for occupancy by all co-tenants (“constructive ouster”):
o Some courts also hold that co-owners in possession have a duty to pay
rent if the property is too small or otherwise impracticable to be
physically occupied by all the co-owners. This situation is sometimes
described as “constructive ouster” because the co-owners out of
possession have been effectively excluded from the property.
Rent without ouster:
o Absent constructive ouster, most states require some affirmative act by
which one party excludes the other.
 Ex. ouster shown when brother changed the locks on the door and
refused to give his sister a key
o A few courts, however, permit tenants out of possession to receive rent
without proving ouster.
Adverse Possession:
o Because each tenant is legally entitled to occupy the property, one cotenant cannot obtain adverse possession against another unless the
possessing tenant makes clear to the nonpossessory tenant that he is
asserting full ownership rights in the property to the exclusion of the
other co-tenants.


The courts generally require some affirmative act by which the
nonpossessory tenant is put on notice that her co-owner is
claiming
adversely
to
the
nonpossessory
tenant’s
interests.(unequivocal evidence of ouster)
Trespass:
o Since each co-tenant possesses the whole, each is entitled to invite
others onto the premises even if their co-owners object.
o However, in Georgia v. Randolph the court held that the fourth
amendment prohibited admission of evidence found after a wife gave the
police permission to search the house for drugs, but her husband refused
to allow them to enter.
 The Court held that the prohibition on unreasonable search
and seizure prohibits entry over the objections of a physically
present resident, even if his co-owner consents.
o Carr v. Deking
 The court held it is well settled that each tenant in common of
real property may use, benefit and possess the entire property
subject only to the equal rights of co-tenants.
 a cotenant may lawfully lease his own interest in the common
property to another without the consent of the other tenant
and without his joining in the lease.
 The non-joining cotenant is not bound by this lease of the
common property to third persons. The lessee “steps into the
shoes” of the leasing cotenant and becomes a tenant in
common with the other owners for the duration of the lease.
 A non-joining tenant may not demand exclusive possession as
against the lessee, but may only demand to be let into copossession.
o Applying the principles above, the court finds that Joel is not entitled
to eject Decking from the property. The proper remedy is partition,
and until that occurs Deking is entitled to farm the land under the
lease.
o Tenhet v. Boswell
 a joint tenant may, during his lifetime, grant certain rights in
the joint property without severing the tenancy. But when
such a joint tenant dies his interest dies with him, and any
encumbrances placed by him on the property become
unenforceable against the surviving joint tenant.
 There are different views on this subject:
 (1) Some authorities support the view that a lease by a
joint tenant to a third person effects a complete and
final severance of the joint tenancy.
 (2) Others adopt a position that there is a temporary
severance during the term of the lease. If the lessor dies
while the lease is in force, under this view the existence
of the lease at the moment when the right of
survivorship would otherwise take effect operates as a
severance, extinguishing the joint tenancy.
o If, however, the term of the lease expires before
the lessor, it is reasoned that the joint tenancy is
undisturbed because the joint tenants resume
their original relation.
 ***The court holds that a lease is not so inherently
inconsistent with joint tenancy as to create a severance, either
temporary or permanent.
 Need specific intent to sever this relationship, because
joint tenancy is a closer relationship than a tenancy in
common
 The court finds that the joint tenancy was not severed
by the lease and that sole ownership of the property
therefore vested in plaintiff upon her joint tenant’s
death by operation of her right of survivorship.
 By the very nature of joint tenancy, the interest of the
nonsurviving joint tenant extinguishes upon his death. And as
the lease is valid only “in so far as the interest of the lessor in the
joint property is concerned,” it follows that the lease of the joint
tenancy property also expires when the lessor dies.
 Reasoning: The right of survivorship is the chief
characteristic that distinguishes a joint tenancy from other
interests in property. The judgment lien of (the creditor)
could attach only to the interest of his debtor. That interest
terminated upon [the debtor’s] death.” Fter his death “the
deceased joint tenant had no interest in the property, and
his judgment creditor has no greater rights.”
 a joint tenant may, during his lifetime, grant certain rights in
the joint property without severing the tenancy. But when
such a joint tenant dies his interest dies with him, and any
encumbrances placed by him on the property become
unenforceable against the surviving joint tenant.
 There may be a potential injury sustained by a person
who in good faith leases from one joint tenant, and may
get evicted when the lessor dies prior to the expiration
of the lease. This result would be avoided by a prudent
lessee who conducts a title search prior to leasing,
o Courts are divided on the question of whether leases sever joint
tenancies
In Tenhet the court found that “a lease is not so inherently
inconsistent with joint tenancy as to create a severance.”
(follow this rule)
 Lease does not survive death of joint tenant.
o Different Justifications
 (1) It might be argued that joint tenants have no justified
expectations in their right of survivorship since it is so highly
contingent on events that may not happen. After all, it can be lost
if one dies first or if one’s co-owner sells her interest in the
property.
 (2) allowing severance may increase the alienability of property,
especially if the court holds that leases given by one joint tenant
do not survive the death of the lessor; few people will rent
property if they know their possessory rights will end as soon as
their landlord dies.
 (3) On the other hand, the right of survivorship may increase the
alienability of the property by decreasing the number of owners
from two to one. This makes it easier for the property to be bought
and sold since a potential lessee or buyer does not have to worry
about obtaining the consent of more than one person.
o Mortgages and the right of survivorship: Courts are divided
 Courts are also divided on the question of whether mortgages
sever joint tenancies.
 Majority: (Lien theory) Most states describe the
borrower who grants the mortgage as the owner or title
holder and the bank or lender who takes the mortgage
as a “lienholder,” with a right to possess the property
only if the borrower defaults.
o courts typically hold that a mortgage by one
tenant does not sever the joint tenancy.
Foreclosure during the life of the tenant would
sever the tenancy and create a tenancy in
common between the non-borrowing tenant and
the bank. If the borrowing tenant dies before
foreclosure, however, the surviving co-tenant
receives the entire property unburdened by the
mortgage.
 Minority: retain the older “title” theory, in which the
lender takes title to the property, subject to an “equity
of redemption” in the borrower who grants the
mortgage. Some courts in title theory states consider a
mortgage to be a transfer of ownership that has the
effect of severing the joint tenancy.
o Sawada v. Endo

The court joins the group of states and the District of
Columbia which hold that under the Married Women’s
Property Acts the interest of a husband or a wife in an estate
by the entireties is not subject to the claims of his or her
individual creditors during the joint lives of the spouses.
 The Married Women’s Property Acts effect was to abrogate the
husband’s common law dominance over the marital estate and
to place the wife on a level of equality with him as regards the
exercise of ownership over the whole estate.
 The court is not persuaded by the argument that it would be
unfair to the creditors of either spouse to hold that the estate
by the entirety may not, without the consent of both spouses,
be levied upon for the separate debts of either spouse.
 Sawada Rule(Majority): that creditors cannot reach property
held in the form of tenancy by the entirety to satisfy debts of
one spouse; even if the property is sold or the debtor spouse
survives the non-debtor, the creditor has no claim on the
estate.
o Dissent: The majority reaches its conclusion by holding that the
effect of the Married Women’s Act was to equalize the positions of
the spouses by taking from the husband his common law right to
transfer his interest, rather than by elevating the wife’s right of
alienation of her interest to place it on a position of equality with the
husband’s.
o Creditor’s rights to reach tenancy by the entirety property Rules”
 (1) Majority of states follow the Sawada rule: that creditors
cannot reach property held in the form of tenancy by the
entirety to satisfy debts of one spouse; even if the property is
sold or the debtor spouse survives the non-debtor, the creditor
has no claim on the estate.
 (2) A smaller group of states, including Massachusetts, New
Jersey, and New York, hold that creditors can attach the life
interest of a tenant by the entirety. Creditors may not,
however, defeat the non-debtor spouse’s survivorship interest,
and may not be able to demand partition of the property.
 (3) A few states, including Tennessee and Kentucky, hold that
the creditor may only attach the debtor spouse’s right of
survivorship; the creditor only may possess the property if the
debtor survives the non-debtor spouse.
o Partition
 Ark Land v. Harper
 Partition in Kind: means the division of the land held in
co-tenancy into the co-tenants’ respective fractional
shares(partition in kindearly common law).




o [(1)] that the property cannot be conveniently
partitioned in kind,
o [(2)] that the interests of one or more of the
parties will be promoted by the sale, and
o [(3)] that the interests of the other parties will
not be prejudiced by the sale.
Partition by Sale: If the land cannot be fairly divided,
then the entire estate may be sold and the proceeds
appropriately divided(partition by sale).”
o Partition by sale, when it is not voluntary by all
parties, can be a harsh result for the cotenant(s)
who opposes the sale.
 [a] particular piece of real estate cannot be
replaced by any sum of money, however
large; and one who wants a particular
estate for a specific use, if deprived of his
rights, cannot be said to receive an exact
equivalent or complete indemnity by the
payment of a sum of money.
**This Court HOLDS in a partition proceeding in which
a party opposes the sale of property, the economic value
of the property is not the exclusive test for deciding
whether to partition in kind or by sale.
o Evidence of longstanding ownership, coupled
with sentimental or emotional interests in the
property, may also be considered in deciding
whether the interests of the party opposing the
sale will be prejudiced by the property’s sale.
This latter factor should ordinarily control when
it is shown that the property can be partitioned
in kind, though it may entail some economic
inconvenience to the party seeking a sale.
When a commercial entity purchases property because
it believes it can make money from a specific use of the
property, that property will increase in value based
upon the expectations of the commercial entity. This
self-created enhancement in the value of property
cannot be the determinative factor in forcing a preexisting co-owner to give up his/her rights in property.
To have such a rule would permit commercial entities
to always “evict” pre-existing co-owners, because a
commercial entity’s interest in property will invariably
increase its value.
o
o
o
o
o
o Ark Land voluntarily took an economical gamble
that it would be able to get all of the Caudill
family members to sell their interests in the
property. Ark Land’s gamble failed. The fact that
Ark Land miscalculated on its ability to acquire
outright all interests in the property cannot form
the basis for depriving the Caudill heirs of their
emotional interests in maintaining their
ancestral family home.
Dissent: the sporadic use of the property by the appellants in this
case does not outweigh the economic inconvenience that the appellee
will suffer as a result of this property being partitioned in kind.
 I think the majority’s decision would have been different if this
property was going to be used in the construction of a four-lane
highway. Under those circumstances, I believe the majority
would have concluded that such economic activity takes
precedence over any long-term use or sentimental attachment
to the property on the part of the appellants. In my opinion,
coal mining is an equally important economic activity.
Voluntary Partition
 Tenants who wish to end a co-tenancy may agree to divide or
sell the land.
Involuntary or Judicial Partition
 When they cannot agree, one tenant can seek an involuntary
or judicial partition.
Partition in kind
 divides the property itself among the co-tenants. Where the
property cannot be divided in parcels of exactly proportional
value, the co-tenant receiving disproportionate value must pay
the other co-tenant owelty (OH-el-tee) to compensate for the
difference.
Partition by Sale (Majority Rule)
 orders the property sold, on the open market or at auction, and
the proceeds divided. Some jurisdictions by statute also permit
forced sale of one tenant’s interest to another. Although
statutes in all jurisdictions express a strong preference for
partition in kind, partition by sale is typical in many states.
 Courts may order partition by sale if (1) division of the parcel
is not practicable or (2) partition by kind will create “great
prejudice,” “substantial injury” or be “inequitable” to the
tenants.
 More often courts simply order partition by sale if the property
is worth “materially less” divided than it would be if sold as a
single parcel.
o Agreements not to Partition
 Co-tenants sometimes agree among themselves not to
partition jointly held property; grantors also sometimes
attempt to prevent partition by including restrictions against
partition in a deed or will.
 Although such agreements were traditionally held to be
void as restraints on alienation, today courts are likely
to uphold them if they are reasonably limited in time
and have a reasonable purpose.
 Statutes typically prohibit partition of common areas of
condominiums.
o Community Property and Separate Property
o Separate Property
 During marriage:
 In separate property states, spouses own their property
separately, except to the extent they choose to share it or
mingle it with their spouse’s property.
 This means that each spouse owns whatever property he or
she possessed before the marriage — such as a house, a car,
stock, or a bank account — and is individually liable for
prior debts. Creditors cannot go after a spouse’s property
to satisfy a debt individually undertaken by the other
spouse.
 Property earned after the marriage, including wages and
dividends, is also owned separately. A husband and wife
may of course choose to share property with each other
either informally, by sharing the costs of the household or
giving part of individual earnings to the spouse, or
formally, by having a joint bank account to which either
spouse has access as a joint tenant.
 Spouses have a legal duty to support each other, and this
duty may require a sharing of property earned during the
marriage. A spouse who fails to comply with this obligation
may be forced to do so by a court order for maintenance,
although this kind of lawsuit rarely happens outside of
divorce or separation.
 On Divorce:
 Separate property states have statutes that provide for
equitable distribution of property owned by each of the
parties on divorce, subject to a wide range of factors such
as
o economic need (support for necessities, including
child support),
o status (maintaining the lifestyle shared during the
marriage),
o rehabilitation (support sufficient to allow one spouse
to attain marketable skills such that support will no
longer be needed),
o contributions of the parties (treating the marriage
as a partnership and
o dividing the assets jointly earned from the
enterprise), and,
o sometimes, fault.
 Some states allow marital fault to be
considered and some explicitly exclude
“marital misconduct” as a factor.
 Specific factors that may be taken into account include age,
health, occupation, income, vocational skills, contribution
as a homemaker, dissipation of property during the
marriage, income tax consequences, debts, obligations
prior to marriage and contribution of one spouse to the
education of the other.
 Separate property states also have provision for alimony,
or periodic payments from one spouse to support the other.
 On Death:
 A spouse may dispose of her property by will.
 separate property states may limit her ability to determine
who gets her property on death. Many states provide for a
statutory forced share of the decedent’s estate, effectively
allowing the widow or widower to override the will and
receive a stated portion (usually one-third to one-half) of
the estate.
 There is no obligation to leave separately owned property;
spouses are generally free to give away their separate
property during their lifetime. But the rules in force do
protect the interests of a surviving spouse to the extent of
defining an indefeasible right to receive a portion of the
testator’s estate (the property owned by the testator at the
time of death).
o When no will is written, a spouse’s separate property
is inherited according to the state intestacy statute.
While some states grant the surviving spouse the
decedent’s entire property, other states divide the
property between the surviving spouse and the
children.
o Community Property
 During Marriage:

In community property states, as in separate property
states, property owned prior to the marriage, as well as
property acquired after marriage by gift, devise, bequest,
or inheritance, is separate property.
 All other property acquired during the marriage, including
earnings, is community property and is owned equally by
both spouses. In some community property states, earnings
on separate property remain separate property
o In several states, however, earnings from separate
property, including interest, rents, and profits,
become community property. Most states allow
spouses to change, or “transmute,” their property
from separate to community property, and vice
versa, by written agreement.
 Community property states have widely divergent rules on
whether community property can be reached by creditors
of individual spouses. Some states protect such property
from being reached by creditors of individual spouses
unless both spouses consented to the transaction; others
allow the community property to be used to satisfy debts
incurred by one spouse; still others limit the portion of the
community property reachable by such creditors.
 On Divorce:
 A few community property states allocate property on
divorce relatively mechanically by giving each spouse his
or her separate property and half of the community
property.
 Most community property states adopt the “equitable
distribution” principle now existing in separate property
states.
 On Death:
 In community property states, a spouse may dispose of her
separate property and one-half of the community property
by will. Statutory forced share statutes do not generally
exist in community property states, given the spouse’s
vested ownership of one-half of the community property.
o Premarital Agreements
 Spouses may attempt to vary their respective property rights
during marriage or at divorce by signing a premarital or
antenuptial agreement.
 both premarital and marital agreements are generally
enforceable if voluntary and not otherwise against public policy,
reflecting both respect for freedom of contract and belief that such
agreements may encourage marriage and discourage bitter
divorce disputes.
 Courts differ in the standards applied to determine whether
agreements are voluntary. Factors may include whether the
agreement was demanded shortly before the wedding, the relative
sophistication of the parties, and whether the challenging party
had reasonable time and means to access independent counsel
o Homestead Laws:
 Almost all states have homestead laws designed to protect the
interests of a surviving spouse and children in the family home
from the claims of creditors of the deceased spouse. They
generally allow the spouse to live in the family home as long as
she lives.
o Watts v. Watts
 Unjust enrichment and economic unity( each person should
get their stakes in the property)
 This court, and numerous other courts, have concluded that “a
bargain between two people is not illegal merely because there is
an illicit relationship between the two so long as the bargain is
independent of the illicit relationship and the illicit relationship
does not constitute any part of the consideration bargained for
and is not a condition of the bargain.
 Courts have recognized that money, property, or services
(including housekeeping or childrearing) may constitute
adequate consideration independent of the parties’ sexual
relationship to support an agreement to share or transfer
property.
 According to the plaintiff’s complaint, the parties cohabited for
more than twelve years, held joint bank accounts, made joint
purchases, filed joint income tax returns, and were listed as
husband and wife on other legal documents. Courts have held
that such a relationship and “joint acts of a financial nature can
give rise to an inference that the parties intended to share
equally.”
o We conclude that public policy does not necessarily preclude an
unmarried cohabitant from asserting a contract claim against the other
party to the cohabitation so long as the claim exists independently of the
sexual relationship and is supported by separate consideration.
 allowing no relief at all to one party in a so-called “illicit”
relationship effectively provides total relief to the other, by
leaving that party owner of all the assets acquired through the
efforts of both.
 Many courts have held, and we now so hold, that unmarried
cohabitants may raise claims based upon unjust enrichment
following the termination of their relationships where one of the
parties attempts to retain an unreasonable amount of the
property acquired through the efforts of both.
Chapter 10
Present Estates and Future Interests
 One way owners may share ownership is by dividing ownership rights over
time, separating the present right to possess the property from the future
interest, the right to take possession in the future under specified
circumstances.
o The grantor specifies the circumstances under which the property
will shift in the future from the present interest holder to the future
interest holder.
o Ex. the grantor may convey property to A so long as she is alive and
then provide that at A’s death, the property will transfer to B.
 The grantor in this case is not attempting to control directly
what A does with the property; however, by deciding who will
own the property at A’s death, the grantor often hopes to
indirectly control what is done with the property — perhaps
by keeping the property in the family and making sure it is
available for the grandchildren to inherit.
 Heirs: those entitle by law to inherit the property if the owner dies intestate
(without a will).
o Intestate heirs are typically one’s spouse and any children not from that
marriage; if there is no spouse then one’s children; if no spouse or
children; then one’s parents; if no parents, then one’s siblings; if no
siblings, then certain other relative. If no relatives qualify as heirs, the
property will escheat to the state.
 Devises: are those entitled to real property under a will
 Present Interest may be created by sale, lease, will, or trust
 Future interests may be created by sale, lease, will, or trust. By delegating to
property owners the power to create future interests, the legal system enables
people to exercise some degree of control over who owns the property in the
future and what the future owner is entitled to do with it.
o A seller may create a future interest in a deed.
 A landlord necessarily creates a future interest either orally or in
a written lease because the property will revert to the landlord
when the lease term expires.
o testator or testatrix (one who dies leaving a valid will) can create a
future interest by devising or bequeathing property in a will.
o A grantor may also create a future interest when establishing a trust (a
legal arrangement in which one person or entity holds title to property
for the benefit of another).
o Future interests may be certain to come into possession or may be
contingent on events that may or may not happen.


Future interests exist the moment they are created even though the holder
of the interest has no right to possess the property until the triggering event
occurs.
Public Policy Questions (Reasons to restrict future interests)
o (1) Dead Hand: Owners may seek to control who owns property long
after they die, giving rise to a problem often described as “dead hand
control.”
 Allowing grantors or testators to do this may promote their
interests and even enhance alienability; owners may be more
willing to part with their property if they can control who owns
it or how it is used in the future. However, conditions limit
what owners may do with their property, thus interfering with
freedom of future owners to control the property
 This may undermine the autonomy of future owners and the
efficient use and transfer of property.
 Rigid enforcement of restrictions imposed long ago by grantors
who could not anticipate current conditions can prevent
property from being devoted to its best uses as social
circumstances and needs change.
 The struggle for control between prior owners and current
owners or between current owners and future owners requires
a legal structure that balances their relative interests.
o (2) Hierarchy: is the possibility that imposing restraints on
alienation and use will have the effect of concentrating ownership in
the hands of certain groups and excluding others.
 restricting ownership to one’s descendants, for example, may
be a useful way of securing expectations. If common, however,
it would also concentrate ownership in the families of those
who already own property. Such restrictions may also be even
more pernicious; if property ownership could be lawfully
conditioned on the property’s not being occupied by a person
of a particular race, for example, future interests could be used
to perpetuate racial hierarchies.
 he marketplace is designed to decentralize power over social
resources, dispersing them among citizens rather than
concentrating them in the hands of government officials or an
aristocracy. To maintain this decentralization of power,
however, rules of law are necessary to prevent private owners
from re-concentrating ownership by creating new monopolies
or centers of power.
o Present Interest Use it right now
o Future Interest Exists now, but not possessory until a later date.
Fee Simple
(Absolute)
*Not subject to
RAP
Life Estate
Fee Simple
Determinable
Fee Simple
Subject to a
Condition
Subsequent
Language
Default, own it outright.
-O to A
-O to A and her heirs
-O to A in fee simple
(O gives up its interests)
Used to take care of
loved ones (maintains
more control)
-O to A for life
O to A for life, then to B
Duration
Future Interest
Theoretically Forever, None, no longer have a
but in practice limited future interest after you
by life of owner
die.
Language of duration:
so long as , during,
while, until.
-O to A while used for
residential purposes
-O to A during
residential use
Want to bargain with
the person you are
giving it to.
Language of condition:
on condition that, but if,
provided that
-O to A on condition that
property is used for
residential purposes; in
the event it is not so
used, O shall have a
right of entry.
**EX. O to A
Until relevant
happens
Grantor (possibility of
reverter)
Until relevant event
happens AND grantor
asserts right of entry
Grantor (right of entry)
**Don’t have to exercise
that right, but you have the
option.
Life of the original life (1) Grantor: Reversion
tenant (ex. O)
Ex. O to A for life, then
back to O.
Life estate per
(2) Third Party: Remainder
autrevie If A sells
Ex. O to A for life then to B
to D, D only owns it
(i) Contingent
as long as A is alive.
Remainders: Event
Uncertainty or
Identity Uncertainty
(ii) Vested Remainder:
Absolutely vested
remainders, Vested
remainders subject to
open, and vested
remainder subject to
divestment
Fee Simple
Subject to an
Executory
Limitation







Language of duration or
condition. When the
future interest belongs
to someone other than
the grantor.
-O to A as long as used
for residential purposes,
then to B.
**O to A and 3rd Party
Until relevant event
happens
3rd Party: Executory
Interest
Event Uncertainty: the remainder will take effect only upon the happening
of an event that is not certain to happen.
o Ex. O to A for life, then to B if B has graduated from law school.
o creates a contingent remainder because at the time of the original
conveyance from O to A it is not certain that B will graduate from
law school. (If B does not graduate from law school, the property will
revert to O on A’s death; if B later graduates from law school, the
property will then spring to B.)
Identity Uncertainty: the remainder will go to a person who cannot be
ascertained at the time of the initial conveyance.
Absolutely Vested Remainders: This is a remainder that is not subject to
change.
o Ex. O to A for life, and then to B.
Vested Remainders Subject To Open: Typically arising in class gifts, this is
a remainder that is vested in some individuals but may be divided with
others who join the class in the future.
o Ex. O to A for life, then to the children of B. (when B already has one
child).
o Is a vested remainder because any children of B born after the
conveyance from O to A may share the property rights with the
children who were alive at the time of the conveyance.
Vested Remainders Subject to Divestment: This is a vested remainder that
may be lost due to an event that occurs after the original conveyance.
o Ex. O to A for life, then to B, but if B marries a lawyer, the property
shall revert to O.
***Contingent Remainders may be destroyed if they did not vest before the
preceding life estate ended. Majority of states have abolished this rule
o Ex. If A dies before B graduates the contingent remainder is
destroyed.
o Springing Interest: would go to B once he graduates, courts don’t like
the destructibility of contingent remainders.
Three Interpretive Rules in creating Future Interests


o (1) cannot grant more than one has. For example, if one grants a
present estate limited by a future interest to another, the grantee
generally receives the property limited by the future interest as well.
o (2) unless the grant contains limiting language, the grantor will be
presumed to have given away all of the transferred interest. So, for
example, a grant of a fee simple interest from grantor to grantee
without specifying a future interest will be interpreted as granting
the property forever.
o (3) whatever is not granted remains with the grantor. For example,
if the grant transfers the interest only for a certain period of time,
but does not specify what happens to the property after that period,
the future interest is presumed to remain with the grantor.
o One regulatory rule is the rule against creation of new estates.
 This rule prohibits owners from creating ownership packages
that do not fit within one of the established estates; it helps
ensure that sufficient rights are consolidated in owners so that
they can act like owners.
 This means that the courts must interpret conveyances or
wills to determine which estate the grantor intended to create.
The court cannot simply ask what future interest the grantor
intended to create; instead, the court must fit the future
interest into an established category.
Wood v. Board of County
o An estate in fee simple determinable may be created so as to be
defeasible upon the occurrence of an event which is not certain ever
to occur. Words such as “so long as,” “until,” or “during” are
commonly used in a conveyance to denote the presence of this type of
special limitation. The critical requirement is that the language of
special limitation must clearly state the particular circumstances
under which the fee simple estate conveyed might expire. Language
of conveyance that grants a fee simple estate in land for a special
purpose, without stating the special circumstances that could trigger
expiration of the estate, is not sufficient to create a fee simple
determinable.
 Words commonly used in a conveyance to denote the presence
of a fee simple estate subject to a condition subsequent include
“upon express condition that,” “upon condition that,” “provided
that,” or “if.
Edwards v. Bradley
o a life estate may be created by implication as well as by explicit
language, provided the will shows the requisite intent.
 The intention of the testatrix is to be upheld if the will can be
reasonably construed to effectuate such intent and if it is not
inconsistent with an established rule of law. In addition, the
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
language of the will is “to be understood in the sense in which
the circumstances of the case show” that the testatrix
intended.
REMEMBER: Hope and aspiration is not legal language.
o Precatorynot intended to have any legal significance—and will
interpret the conveyance to have transferred all the interests the
grantor owned.
 Ex. “I hope this person uses this property as a school.” (courts
interpret this as general wishes (hope and aspiration) but is
not legally binding).
There is therefore a presumption against forfeitures. If it is possible to
interpret the language to avoid loss of the property by the current owner,
the courts will generally adopt this interpretation.
o Policies behind the presumption against forfeitures
 Enforcing the condition in the original conveyance by
requiring a forfeiture promotes the interests of the grantor in
controlling the future use and disposition of property; it also
creates security for neighboring property owners who may
benefit by the condition.
 In contrast, the presumption against forfeitures promotes the
interests of current owners in controlling property in their
possession, giving them greater freedom to change land uses
as economic conditions and social values change; it also
promotes social interests in deregulating economic activity to
allow property owners the freedom to shift property to more
valuable or desired uses.
 At the same time, the presumption against forfeitures may
further the grantor’s intent, on the theory that the grantor
presumably intends to give away any interests she has and
would be likely to make it very clear if she intended to retain
a future interest.
Waste
o The doctrine of waste seeks to mediate these conflicts (life tenants
and owners of remainders have conflicting interests) by preventing
present possessory owners from unreasonably damaging the estate.
 Applying the doctrine involves questions of efficient use of
resources, the intent of the drafters, the justified expectations
and rights of the future and present interest holders and the
role of property in society.
o Mcintyre v. Scarbrough
 “Occupy” is more expansively defined in Black’s Law
Dictionary as “to hold possession of; to hold or keep for use; to
possess.” Because one may occupy a residence by holding it or
keeping it for use, the court erred in imposing a requirement



that permanent physical presence was necessary to fulfill the
occupancy requirement of the warranty deed.
 A life tenant is entitled to the full use and enjoyment of the
property if in such use he or she exercises the ordinary care of
a prudent person for its preservation and protection and
commits no acts which would permanently injure the
remainder interest.
(1) Voluntary and Permissive Waste
o Is the result of deliberate acts by the possessory tenant, such as
destruction or removal of structures or resources on the property.
 An important category of voluntary (active) waste is the
removal of natural resources, such as timber, minerals, or oil
and gas. Removal of minerals or oil and gas is generally
prohibited voluntary waste unless, under the “open mines”
doctrine, the resource was already being mined when the life
tenant came into possession.
 Similarly, removing timber is permitted if the land was
already used for timber harvesting or the removal is
consistent with good husbandry of the land, but
voluntary waste otherwise.
 Permissive waste, in contrast, is a matter of omission rather
than commission. As in McIntyre, permissive waste includes
failure to make ordinary repairs preventing deterioration as
well as failure to pay real property taxes and other carrying
charges necessary to prevent loss of the property.
(2) Ameliorating Waste
o When a life tenant’s actions change the character of the property but
increase rather than decrease the value or utility of the property.
o Although the original rule was that any fundamental alteration of
the property was waste, today ameliorating waste is sometimes
condoned.( changes the nature of the property)
 While some jurisdictions maintain the rule prohibiting
ameliorating waste, most will approve substantial alteration
that increases value if it is justified in light of changed
circumstances, consistency with what a fee simple owner
would do, and the intent of the parties
Remedies
o (1) Damages
 Suit for damages may also be brought against the life tenant’s
estate after death, although the suit may be barred by laches or
statutes of limitations.
o (3) Termination of Life Estate
 Many states by statute permit the more radical remedy of
termination of the life estate. Some of these require that the
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waste be either voluntary or willful to result in termination,
while others allow termination without a showing of intent.
***PUBLIC POLICY: There is generally no duty for the living not to waste
fee simple property. Absent nuisance, historic preservation, or other
prohibitions, fee simple holders may alter and destroy their property, even
if it reduces its value. But a number of courts have prohibited execution of
wills that ordered destruction of valuable homes after the death of the
testator, particularly when it would impact the value of surrounding
properties.
o There is a greater need for the protection of the community interests
after the death of the testator. Although a person may wish to deal
capriciously with his property, while he is alive, his self-interest will
usually prevent him from doing so. After his death there is no such
restraint and it is against public policy to permit the decedent to confer
this power upon someone else where his purpose is merely capricious.
REMEMBER: Cannot create new forms of property.
Rule Against Perpetuities
o Want to keep property marketable, and owners know. Prevent
deadhand control, Remember property is for the living and not the
dead.
o This rule promotes the productive use of land by requiring that the
identity of those who own the property be fixed within a certain
period of time.
o Under this rule, future interests are invalid unless they are certain
to vest or fail to vest within the lifetime of someone who is alive(in
being) at the creation of the interest or no later than 21 years after
her death.
o Policy Reason The rule is “designed to prevent remoteness of
vesting and thereby leave control of the wealth of the world more in
the hands of the living than in the hands of the dead.”(limit dead
hand)
o Exempted: future interests in the grantor, reversions, reverter and
rights of entry. Remainders that are absolutely vested or subject to
divestment.
 Future interests that are subject to the rule against
perpetuities are executory interests, contingent remainders,
and vested remainders subject to open.
o Steps:
 (1) identify the estate and future interests that are created
(are they subject to the RAP analysis)
 (2) Identify what has to happen for the contingency to fully
vest (Eliminate the identity or event uncertainty)
 Ex. O to A for life, then A’s children
o A has to dies and A has to have childrenfully
vested
 (3) identify all the lives in being, the people alive at the
creation of the interest who can have something to do with it
vesting.
 Conveyanceat the moment of conveyance.
 WillMoment the testator dies.
 Life in being A life in being is a person alive (or in
utero) at the creation of the interest who may have
something to do with it vesting. It includes both people
mentioned in the conveyance and people not mentioned
who are alive and may affect vesting. A life in being
includes only human beings, not corporations, animals,
or other non-human entities.
 (4) See if you can find one way in which the future interest will
vest more than 21 years AFTER the death of all the people
identified in step three. If you can the future interest is
invalid. (Just has to be possible not probable)
 Crazy RAP Scenarios
o Unborn Widowdon’t assume that people are
going to marry someone who isn’t living yet
o Fertile OctogenarianPeople can reproduce on
their deathbed.
 Could have a child at age 80.
o Endless Will Contestassume things will never
end. Will’s could be tied up in the courts for a long
time.
 (5) Remedy for Violating the rule against perpetuities
 The remedy for violating the rule is simply to strike, or
cross out, the offending language.
 Ex. O to A for residential purposes, then to B. If the
conveyance to B violates the rule against perpetuities,
strike out the words “then to B.” We are left with “O to
A for residential purposes.” This describes a fee simple
determinable; since the possibility of reverter in O is not
subject to the rule, the interest is valid.
o SAVINGS CLAUSES:
 Way to write around the RAP
 This is what makes RAP not a practical issue
 Savings clauses have become boilerplate
Chapter 12
Deeds


Elements
o The deed must
 (1) identify the parties;
 (2) describe the property being conveyed;
 The description must be sufficiently precise to locate the
boundaries of the property. Those boundaries may be
defined by reference to official surveys, plats, or by
metes and bounds.
o A plat is a map produced by a private developer
that describes the lots being created in a
subdivision.
o Metes and bounds, identifies the direction and
distance of the first border, etc. until the original
point.
o If a deed contains a mistaken description of the
property, either party may sue to reform the
deed.
 (3) state the grantor’s intent to convey the property interest in
question
 A deed must be delivered to the grantee to effectuate a
transfer of ownership.
o Possession or recording of a deed may give rise to
a presumption that the grantor intended to
transfer ownership of the land.
 (4) contain the grantor’s signature.
Deeds are generally classified as
o General Warranty
 Is a general warranty deed that covenants against all defects
in title
o Special Warranty
 A special warranty deed limits the covenant to defects in title
caused by the grantor’s own acts but not by the acts of prior
owners. It can also cover defects, such as the allowance of
adverse possession, that were the result of the current owner’s
failure to act.
o Quitclaim deed
 A quitclaim deed contains no warranty (or covenant) of title
whatsoever.
 It purports to convey whatever interests in the property are
owned by the grantor.
 It does NOT promise that the grantor in fact owns the property
interest, it does not provide the buyer with any real assurance
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that the grantor has the right to convey the interest the
grantor purports to convey.
Present covenants: These covenants are breached, if at all, at the time of
the conveyance (the closing). That is when the statute of limitations starts
to run.
o Covenant of seisin: This covenant is the grantor’s promise that he
owns the property interest (the estate) he is purporting to convey to
the grantee. Thus, an owner of a leasehold would breach this
covenant if he purported to convey a fee simple. Similarly, an owner
of a one-half interest as a tenant in common would breach the
covenant if he purported to convey full ownership of the property as
a sole fee simple owner.(covenant promise that the seller actually has
the right to sell)
o Covenant of the right to convey: This constitutes the grantor’s
promise that he has the power to transfer the interest purportedly
conveyed to the grantee. Although in most cases the same as the
covenant of seisin, it might differ in several instances. For example,
a life estate burdened by an enforceable restraint on alienation would
violate this covenant if the owner purported to convey it to the
grantee. Similarly, if the property were adversely possessed by
someone other than the seller, the seller would have record title
(seisin) of the property but not the right to convey it.
o Covenant against encumbrances: This is the grantor’s promise that
no mortgages, leases, liens, unpaid property taxes, or easements
encumber the property other than those acknowledged in the deed
itself.
Future covenants: These covenants are breached, if at all, after the closing,
when the disturbance to the grantee’s possession occurs. The statute of
limitations starts to run when the grantee’s possession is disturbed.
o Covenant of warranty: By this covenant, the grantor promises to
compensate the grantee for any monetary losses occasioned by the
grantor’s failure to convey the title promised in the deed.
o Covenant of quiet enjoyment: The grantor promises by this covenant
that the grantee’s possession will not be disturbed by any other
claimant with a superior lawful title. This covenant is substantially
the same as the covenant of warranty.
o Covenant for further assurances: Rarely used, this covenant requires
the seller to take further steps to cure defects in the grantor’s title,
such as paying an adverse possessor to leave the property or paying
the owner of an encumbrance to release the encumbrance.
Remedies
o (1) **You can sue if there is some problem with the property
depending on the type of deed you have.
o (2) The type of deed you have varies the price
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 General is more expensive then a quitclaim deed.
Recording Acts
o Race Statutes: the person who records first prevails
 REMEMBER: Have to record the full chain of title (just
recording personal transactions is not enough).
o Notice Statutes: Under a notice statute, a subsequent purchaser
prevails over an earlier purchaser only if the subsequent purchaser
did not have notice of the earlier conveyance. Further the notice
statute protects any purchaser without notice against prior
unrecorded interests even if the purchaser does not record first.
o Race-Notice Statutes: a subsequent purchaser prevails over prior
unrecorded interest if she (1) had no notice of the prior conveyance
at the time she acquired her interest and (2) records before the prior
instrument is recorded.
Types of Notice
o In both notice and race-notice jurisdictions, only subsequent
purchasers without notice of the earlier conveyance can prevail over
the earlier grantee
 Actual notice, where a party knows about an earlier
instrument, obviously violates this condition.
 But the import of the recording system is that constructive
notice will also deprive a subsequent purchaser of protection.
Constructive notice exists when the grantee, by conducting a
reasonable title search, would have discovered the earlier
conveyance. This holds true whether or not the grantee
actually searched the records.
Inquiry notice is a kind of constructive notice. Under this theory, notice will
be imputed if the subsequent purchaser would have discovered the
conveyance had she acted reasonably to investigate facts at her disposal. If
the property is being occupied by someone other than the grantor, for
example, a purchaser is on inquiry notice that a prior claim may be hanging
around. Inquiry notice will also exist if a recorded instrument refers to
another property interest, such as a lease, a life estate, a condominium
declaration, or a general plan. Inquiry notice can even arise from an oral
statement made by the earlier interest holder.
Sabo v. Horvath
o A purchaser is on notice only of recorded instruments that are within
his chain of title. If a grantor transfers prior to obtaining title, and
the grantee records prior to title passing, a second grantee who
diligently examines all conveyances under the grantor's name from
the date that the grantor had secured title would not discover the
prior conveyance. The rule in most jurisdictions which have adopted
a grantor-grantee index system of recording is that a "wild deed" does
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

not serve as constructive notice to a subsequent purchaser who duly
records.
o If a grantor (Lowery) transfers prior to obtaining title, and the
grantee (Horvath) records prior to title passing, a second grantee who
diligently examines all conveyances under the grantor’s name from
the date that the grantor had secured title would not discover the
prior conveyance. The rule in most jurisdictions which have adopted
a grantor-grantee index system of recording is that a “wild deed” does
not serve as constructive notice to a subsequent purchaser who duly
records.
Estoppel by deed: concerns a dispute between two grantees. The doctrine of
estoppel by deed would enable the grantees to prevail. If a grantor purports
to convey a property interest she does not own to a grantee, and the grantor
subsequently comes to own the property interest by receiving the deed,
ownership is automatically vested in the grantee.
Wild deeds: deals with a particular version of the more general problem of
deeds outside the chain of title, the linked documents that make up a record
of a property’s ownership.
o Some deeds are recorded too early to appear in the chain of title
(before a grantor obtained title to the property); others are recorded
too late to be discovered (after a deed from that grantor was
recorded).
Shelter doctrine: The shelter doctrine allows a bona fide purchaser to
convey property to a third party even if the third party is on notice of an
earlier conveyance.
o For example, O conveys to A, who does not record. O then conveys to
X, a bona fide purchaser without notice of the conveyance to A; X
records. Because X had no notice of the earlier conveyance to A, and
because X recorded first, X would prevail over A in either a notice
jurisdiction or a race-notice jurisdiction. X then wants to convey to C,
but C has notice of the earlier conveyance to from O to A. The shelter
doctrine allows X to convey the property to C, despite C’s knowledge
of the earlier conveyance.
o This doctrine allows bona fide purchasers to convey title even if they
subsequently find out, after they buy the property, of the earlier
conveyance. The bona fide purchaser who records first obtains full
rights in the property over the earlier buyer who did not record. Any
other rule would restrict the bona fide purchaser’s ability to transfer
the property.
Fraud and Forgery
o Forged deeds are absolutely void and therefore transfer no interest
to the grantee; nor can they be the basis of a transfer from the
grantee to a subsequent bona fide purchaser even though that
purchaser has no knowledge of the forgery. Thus, a bona fide
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
purchaser who buys in reliance on the record title, which appears
good, will obtain nothing.
 [A] forger can pass no better title than he has. Consequently,
there can be no bona fide holder of title under a forged deed. A
forged deed, unlike one procured by fraud, deceit or trickery is
void from its inception. The distinction between a deed
obtained by fraud and one that has been forged is readily
apparent
 In a fraudulent deed an innocent purchaser is protected
because the fraud practiced upon the signatory to such a deed
is brought into play, at least in part, by some act or omission
on the part of the person upon whom the fraud is perpetrated.
He has helped in some degree to set into motion the very fraud
about which he later complains. A forged deed, on the other
hand, does not necessarily involve any action on the part of the
person against whom the forgery is committed.
o Deeds obtained through fraud are generally voidable rather than
void. They are voidable by the defrauded victim — the one who was
fraudulently induced to transfer the property. Once the property
passes to a bona fide purchaser without notice of the fraud, however,
the conveyance can no longer be rescinded.
 A deed obtained through fraud, deceit or trickery is voidable
as between the parties thereto, but not as to a bona fide
purchaser.
 Timeframebefore its sold to a bonafide purchaser
 Fraud in the inducement renders such a legally
effective deed voidable in equity (they could be voided if
they are corrected in the amount of time.) However if it
is conveyed to someone else than it is not void. Reason
is because you have other avenues you could have used
to protect yourself in fraud situations (i.e. hired a
lawyer)
Marketable Title Acts (use it or lose itrerecord your interests so that they
are easy to find)
o When a person has a record title for the designated period of time,
all prior claims or interests are extinguished. To preserve prior
claims, owners must re-record their interest or file a notice of claim
every 30 years or so after the recording of their initial deed.
Title Companies
o Title companies can be liable for negligently performing title
searches, independent of any claims under a title insurance policy,
although many courts still refuse to identify such a duty.
Title Registration
o An owner who wishes to register his land must file a petition for a
judicial or quasi-judicial proceeding that is similar to an action to
quiet title. Notice must be given to all persons having any interest in
the land. The result of the adjudication is a certificate of registration
or title. The official certificate of title states the identity of the
property owner and includes descriptions of all encumbrances
(easements, covenants, liens, mortgages, leases, and the like)
affecting the title.
 Benefitsyou don’t have to sort through the chain of title;
government is certifying that you won’t have litigation later
on.
 Negativeis very expensive
Chapter 11
Leaseholds
 In a lease, the landlord agrees to transfer possession of the property for a
specified period to the tenant in return for the tenants promise to make a
periodic rental payment.
 When the tenancy is over, possession ordinarily reverts to the landlord
unless she has sold the property, conveying her interest to someone else.
o A lease is both a conveyance of an important property interest as well
as a contract between the landlords and then tenant.
 Leasehold Estates
Length
Termination
Other Notes
Term of Years
Lasts for a
Ends
Landlord/tenant
specified period of automatically at
dying does NOT
time
the agreed upon
terminate the
Ex. A one year
time
lease.
lease/ 60 day lease (may be
terminated before Landlord is not
the end of the
entitle to evict the
fixed period on the tenant before the
happening of some end of term.
event/condition
Exception: tenant
stated in the lease breaches a
agreement)
material term in
lease.
Periodic Tenancy
Lasts for a
Automatic
Ex. Month to
specified period of Renewal unless
Month tenancies
time
either a landlord
(pay monthly rent
or tenant chooses
to the landlord,
to end the
they renew
relationship.
automatically each
Notice is required
month if neither
party notifies the
before either party
can terminate
Tenancy at Will
Lasts for a
specified period of
time
It can be ended
with no notice to
either party
Tenancy at
Sufferance
(Holdover tenant)
Tenant stays past
their welcome
(a tenant
rightfully in
possession who
wrongfully stays
after the leasehold
has terminated)
An eviction
proceeding and a
court judgment
are generally
required to evict a
tenant
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
other that he
intends to ends the
relationship)
The death of either
the landlord or
tenant does not
terminate the
relationship
Death or landlord
or tenant
terminates the
relationship
A landlord who
accepts rent
checks is said to
have agreed to a
new tenancy.
Regulation of Landlord-Tenant Relationships
o In most states, landlord-tenant relationships are heavily regulated
by both common law and local, state, and federal statutes.
 Procedural regulations impose formal requirements for
creating the landlord-tenant relationship.
 Statute of Frauds most states require that leases of more
than one year be in writing, while leases of one year or less are
enforceable whether they are written or oral
Conflicts about Occupancy
o Many disputes arise because either the landlord has interfered with
the tenant’s possession or “quiet enjoyment” of the property or the
tenant has breached his obligation to pay rent—or both.
o Landlord Remedies (Sues)
 When a landlord asserts a claim against a tenant based on the
tenant’s failure to pay rent or on some claimed breach of the lease
agreement, the landlord may seek either (or both) (1) payment of
back rent the tenant owes, or (2) possession of the premises
(otherwise known as eviction) (3) the landlord may also make a
claim for damages resulting from the tenant’s breach — for
example, the cost of repairing facilities damaged by the tenant.
 The tenant may answer each of these claims by denying that
he has breached the lease (he has in fact paid the rent or he
did not cause the damage). Or he may raise defenses to these
claims, admitting that he stopped paying rent but asserting
that he was entitled to do so because the landlord breached
the agreement first.
o Holdover Tenant The landlord may choose to accept a new tenancy
relationship with the holdover tenant. Most states hold that the new
tenancy is a periodic tenancy based on the rent payment; if the
landlord accepts a rent check for one’s month rent, a new month-tomonth tenancy is established.
 Landlord could also instead sue for possession. o evict the
tenant, the landlord may have to go through the procedures to
evict a month-to-month tenant, including providing the
requisite notice. The landlord may attempt to avoid this result
by suing immediately for possession and either (a) refusing to
accept the tenant’s proffered checks (or returning them to the
tenant) or (b) cashing the checks while writing on the back of
each check that the landlord is not agreeing to renew the
tenancy but is merely using the check to cover the rental value
of the property from the tenant at sufferance.
 The law today is generally that the landlord must evict the tenant
through court proceedings.
 self-help, is likely to become violent; moreover, the landlord
may be mistaken about his right to possession, and he
should not be “the judge of his own rights.” The court noted
that the landlord could also go to court for an immediate
temporary restraining order to prevent the tenant from
destroying the property
o Tenant Sues/ Responds
 In response to a lawsuit by the landlord, the tenant may also be
able to make counterclaims against the landlord. These may
include claims for damages resulting from the landlord’s breach
of the lease, and courts may order a rent abatement (a reduction
in rent) owed for the period during the breach.
 Some courts will also allow the tenant to recover damages
if the landlord acted negligently and physical harm
resulted to the tenant or an invitee on the premises; such
damages also may exceed the rental value of the premises.
 The tenant may petition for injunctive relief, such as an order to
the landlord to fix the apartment to comply with the local housing
code.
 Tenants may also sue the landlord initially with the tenant’s
claims. Such lawsuits ordinarily ask for either (a) damages
resulting from the landlord’s breach, such as a failure to maintain
the premises, or compensation, for example, for injuries resulting

from the landlord’s failure to comply with the housing code, or (b)
an injunction ordering the landlord to fix the apartment to comply
with the terms of the lease or the housing code.
 Initial Occupancy
o Under the current majority rule, the landlord has the duty to deliver
possession of the rented premises to the tenant at the beginning of
the leasehold.
 If a prior tenant wrongfully holds over after his lease term
expires, the landlord has an obligation in most jurisdictions to
remove the prior tenant within a reasonable period of time by
either instituting eviction proceedings or convincing the
holdover tenant to leave.
 Failure to deliver actual possession of the premises to the new
tenant constitutes a breach of the lease by the landlord.
o Minority Rule follow the traditional rule, under which the landlord
has only the duty to deliver the right to possession but no duty to
deliver actual possession.
 In those states, it is the new tenant’s responsibility to evict the
holdover tenant by bringing ejectment or other appropriate
proceedings. Since the landlord is not in default under the
minority rule, the new tenant is legally obligated to pay the
rent even though she is not in possession. The new tenant’s
remedy is to go after the holdover tenant for damages.
A Landlord’s Right to Inspect and Repair
o Uniform Residential Landlord and Tenant Act (pg. 830)
 (a) A tenant shall not unreasonably withhold consent to the
landlord to enter into the dwelling unit in order to inspect the
premises, make necessary or agreed repairs, decorations,
alterations, or improvements, supply necessary or agreed
services, or exhibit the dwelling unit to prospective or actual
purchasers, mortgagees, tenants, workmen, or contractors.
 (b) A landlord may enter the dwelling unit without consent of the
tenant in case of emergency.
 (c) A landlord shall not abuse the right of access or use it to harass
the tenant. Except in case of emergency or unless it is
impracticable to do so, the landlord shall give the tenant at least
[2] days’ notice of his intent to enter and may enter only at
reasonable times.
 (d) A landlord has no other right of access except
 (1) pursuant to court order;
 (2) as permitted by Sections 4.202 and 4.203(b) [giving the
landlord the right to enter the dwelling to fix damage to the
apartment caused by the tenant or to enter the apartment
in case of extended tenant absence]; or






(3) unless the tenant has abandoned or surrendered the
premises.
A Tenant’s Right to receive Visitors and to Marry
o Tenants have a non-disclaimable right to receive visitors.
o Similarly, a tenant who gets married should be entitled to live with his
or her new spouse.
Tenant’s Duties not to Commit Waste or Cause Nuisance and the Problem of
Domestic Violence
o Tenants generally have a duty not to commit waste, giving landlords the
right to have the premises intact and not damaged, subject to normal
wear and tear.
o Written leases almost invariably contain a clause entitling the landlord
to evict the tenant for breach of this obligation. Written leases also
generally contain a clause stating that the tenant “covenants not to
disturb the neighbors, interfere with their quiet enjoyment of their
property, or cause a nuisance” — or other words to that effect.
Tenant Use Restrictions and Obligations
o Use Restrictions Many residential leases, in addition to addressing
waste and nuisance, limit the use of the premises to “residential
purposes” or similar terms, and questions can arise about whether home
businesses violate these restrictions. As with similar covenants in the
context of common interest communities, courts often read residential
use restrictions in leases narrowly, although some courts have found a
breach for substantial businesses.
Covenants to Operate
o Tenants may also be affirmatively obligated in some circumstances to
continue a use contemplated in a lease.
 Ex. company signed a 20-year lease for land on which it agreed to
build and operate a gas station. Rent was set as a percentage of
gasoline delivered, with a $1,000 monthly base amount. After
operating for 17 years, the company closed the service station, but
continued to pay the monthly minimum of $1,000 per month due
under the lease. The landlord sued for damages, seeking the
amount it asserted it would have received had the station
remained in business.
 Who is first in time? If the lease predates the mortgage then the lease is
recognized. If the mortgage predates the lease then the mortgage is
recognized.
Assigning and Subleasing
o Tenant’s right to transfer
 A tenant can generally transfer all or a portion of her possessory
interest in the premises unless the lease specifically limits this
right.

The tenant can do so through an assignment or through a
sublease, or sublet.
 Sublease generally refers to a transfer by a tenant of a
portion of its possessory rights under the lease; by contrast.
o A sublease may also exist if the tenant retains a
right of entry that can be exercised if the subtenant
violates one or more of the terms of the sublease
agreement.
o under a sublease, the lease covenants do not run
with the land as real covenants. The landlord has no
right to sue the subtenant to enforce any of the
covenants in the original lease, including the
covenant to pay rent, if the requested relief is
damages.
o The only exception is when the subtenant expressly
promises the tenant to pay the rent to the landlord.
In that case, the landlord may be able to sue the
subtenant as a third-party beneficiary of the
contract made between the tenant and subtenant; in
other words, the landlord is the intended beneficiary
of the subtenant’s promise to the tenant.
 However, lease covenants probably can be
enforced by
injunction
as equitable
servitudes, so long as the subtenant has
notice of them. Is the subtenant bound if she
has not seen the original lease and that lease
is not recorded? The courts are likely to find
the subtenant on inquiry notice of the
covenants in the original lease; the reasonable
subtenant would inquire whether the tenant
had made promises to the landlord restricting
use of the premises.
 In a sublet, however, the landlord can only
sue the original tenant (who remains
contractually bound to pay the rent). Note,
however, that, in a sublet, if neither the
tenant nor the subtenant pays the rent, the
landlord can evict the tenant (sue for
possession from the tenant) and end the
leasehold,
thereby
terminating
the
subtenant’s right of possession. In either case,
if the landlord chooses to sue the original
tenant for the rent, the original tenant has a

right to be reimbursed by the new tenant for
the amount owed to the landlord.
 The tenant may choose to sublet for a rental
amount different from the amount owed to the
landlord. Whether the new rent is less or more
than the original rent, the tenant remains
liable only for the original amount to the
landlord. Thus, if the subtenant is paying less
than the rent owed to the landlord, the tenant
must make up the difference. If the subtenant
is paying more than the rent owed to the
landlord, the tenant subtenant is allowed to
keep the difference.
Assignment generally refers to the transfer of the
tenant’s entire possessory rights.
o An assignment generally conveys all the tenant’s
remaining property interests without retaining any
future rights to enter the property; under a sublease,
the tenant retains some future interest or the right
to control the property in the future.
o under an assignment, the new tenant — called the
assignee — is responsible directly to the landlord for
all the undertakings under the original lease. In
other words, the tenant’s covenants — including the
covenant to pay rent and other covenants in the
lease agreement — run with the land.
 The landlord and the assignee are not in
privity of contract since they did not reach an
agreement with each other. Since the original
tenant has given up all interest in the
property, however, the landlord and the
assignee are thought to share interests in the
property; they are therefore in privity of
estate, which makes the assignee directly
liable to the landlord for the covenants made
by the original tenant to the landlord. It also
makes the landlord liable to the assignee for
breach of the landlord’s covenants, such as the
covenant of quiet enjoyment,
 Some courts will not grant an injunction since
the payment of rent is a money payment and
resembles the payment of damages. Others
grant an injunction because it constitutes
enforcement of an affirmative covenant, even

though that covenant requires the payment of
money.
o If an assignee fails to pay the rent, the landlord may
sue the original tenant for the unpaid rent because
the original tenant remains in a contractual
relationship with the landlord, which the
assignment does not relieve. But the landlord may
instead choose to sue the assignee directly for the
unpaid rent. Since the covenant to pay rent runs
with the land, the assignee is directly liable to the
landlord for the unpaid rent.
Kendall v. Ernest Pestana
o a majority of jurisdictions have long adhered to the rule that where
a lease contains an approval clause (a clause stating that the lease
cannot be assigned without the prior consent of the lessor), the lessor
may arbitrarily refuse to approve a proposed assignee no matter how
suitable the assignee appears to be and no matter how unreasonable
the lessor’s objection
 The harsh consequences of this rule have often been avoided
through application of the doctrines of waiver and estoppel, under
which the lessor may be found to have waived (or be estopped
from asserting) the right to refuse consent to assignment.
 Justifications for this rule
 (1) it is said that a lease is a conveyance of an interest in
real property, and that the lessor, having exercised a
personal choice in the selection of a tenant and provided
that no substitute shall be acceptable without prior
consent, is under no obligation to look to anyone but the
lessee for the rent.
 (2) is that an approval clause is an unambiguous
reservation of absolute discretion in the lessor over
assignments of the lease. The lessee could have bargained
for the addition of a reasonableness clause to the lease
o [T]he assertion that an approval clause “clearly and
unambiguously” grants the lessor absolute
discretion over assignments is untenable.
 (3) It is argued that the courts should not depart from the
common law majority rule because “many leases now in
effect covering a substantial amount of real property and
creating valuable property rights were carefully prepared
by competent counsel in reliance upon the majority
viewpoint.”

(4) “Both tradition and sound public policy dictate that the
lessor has a right, under circumstances such as these, to
realize the increased value of his property.”
o You could have bargained for that increase in value
but you didn’t.
o A growing minority of jurisdictions now hold that where a lease provides
for assignment only with the prior consent of the lessor, such consent
may be withheld only where the lessor has a commercially reasonable
objection to the assignment, even in the absence of a provision in the
lease stating that consent to assignment will not be unreasonably
withheld. (have to have a commercially reasonable objection for consent
to be valid) (the court goes with this rule)
 “[i]n recent times the necessity of permitting reasonable
alienation of commercial space has become paramount in our
increasingly urban society.”
 Conditions restraining alienation, when repugnant to the interest
created, are void.” It is well settled that this rule is not absolute
in its application, but forbids ONLY unreasonable restraints on
alienation.
 Reasonableness is determined by comparing the justification for
a particular restraint on alienation with the quantum of restraint
actually imposed by it. “[T]he greater the quantum of restraint
that results from enforcement of a given clause, the greater must
be the justification for that enforcement.” (PUBLIC POLICY)
o (1) Restatement A restraint on alienation without the consent of
the landlord of a tenant’s interest in leased property is valid, but the
landlord’s consent to an alienation by the tenant cannot be withheld
unreasonably, unless a freely negotiated provision in the lease gives
the landlord an absolute right to withhold consent.
 Under the Restatement rule, the lessor’s interest in the
character of his or her tenant is protected by the lessor’s right
to object to a proposed assignee on reasonable commercial
grounds. The lessor’s interests are also protected by the fact
that the original lessee remains liable to the lessor as a surety
even if the lessor consents to the assignment and the assignee
expressly assumes the obligations of the lease.
o Under the minority rule, the determination whether a lessor’s refusal to
consent was reasonable is a question of fact.
 Some of the factors that the trier of fact may properly consider in
applying the standards of good faith and commercial
reasonableness are: financial responsibility of the proposed
assignee(are you going to be paying rent); suitability of the use
for the particular property (are you using the property how it
should be used); legality of the proposed use( is it legal in the state

you are in); need for alteration of the premises); and nature of the
occupancy, (i.e. office, factory, clinic, etc.)
o Duty of good faith and fair dealing
 In commercial leases, the trend is toward adopting an implied
reasonableness term in lease clauses that give the landlord the
right to consent to sublet or assignment.
 Differing opinion: In contrast the courts in First Federal
Savings Bank v. Key Markets held
 [C]ourts are bound to recognize and enforce contracts
where the terms and the intentions of the parties can
be readily determined from the language in the
instrument. It is not the province of courts to require a
party acting pursuant to such a contract to be
“reasonable,” “fair,” or show “good faith” cooperation.
 Such an assessment would go beyond the bounds of
judicial duty and responsibility. It would be impossible
for parties to rely on the written expressions of their
duties and responsibilities. Further, it would place the
court at the negotiation table with the parties. In the
instant case, the court would decide what is “fair” or
“reasonable” concerning the advantage or disadvantage
of control of the leased property.
 The proper posture for the court is to find and enforce
the contract as it is written and leave the parties where
it finds them. It is only where the intentions of the
parties cannot be readily ascertained because of
ambiguity or inconsistency in the terms of a contract or
in relation to extrinsic evidence that a court may have
to presume the parties were acting reasonably and in
good faith in entering into the contract.
Landlord’s Duty to Mitigate Damages
o If the tenant breaches the lease for a term of years by ceasing rent
payments and moves out before the end of the lease term. The right
to sue for possession is of no use since the tenant has already given
up possession. There are three remedies for the landlord.
 (1) Accept the tenant’s surrender
 By moving out before the end of the lease term and
ceasing rent payments, the tenant makes an implied
offer to the landlord to end the term of years.
 By accepting the tenant’s surrender the landlord is
agreeing that the tenant will not be legally obligated to
pay the FUTURE rent because they have accepted
possession of the property.

However, the landlord may still choose to sue the tenant
for back rent owed but not paid for the time before the
tenant abandoned the premises by moving out.
 The landlord may sue immediately for damages for
breach of the lease.
o Because the landlord can likely re-rent the
apartment all the landlord loses by the breach is
the difference between the amount the tenant
agree to pay and the amount the landlord can get
from the replacement tenant, plus the
advertising and search costs of finding a
replacement tenant and lost rent in the
meantime.
 (2) Re-let on the tenant’s account:
 The landlord may REFUSE to accept the surrender,
and after notice to the tenant actively look for a new
tenant and re-let the apartment on the tenant’s
account. When a new tenant is found the landlord may
sue the former tenant for the difference between the old
rental price and the new rent received. The new rent
must be reasonable.
 (3) Wait and sue for the rent at the end of the lease term
 Traditional rule, is that the landlord may do nothing,
and wait for the end of the lease term and then sue the
tenant for the remaining unpaid back rent.
o Most states reject this option. And require the
landlord to TRY and mitigate damages.
o Sommer v. Kridel
 When there is a claim for damages under a residential leases
such claims must be governed by notions of fairness and
equity.
 A landlord has a duty to mitigate damages where he seeks to
recover rents due from a defaulting tenant.
 This is a contingent duty duty depending on the
context of the casein this case the landlord was trying
to get the money back from the rent he losthe had a
duty to make a reasonable duty to mitigate to re-let the
property.
o If the landlord has other vacant apartments
besides the one which the tenant has abandoned,
the landlord’s duty to mitigate consists of making
reasonable efforts to re-let the apartment. In
such cases he must treat the apartment in
question as if it was one of his vacant stock.


o As part of his cause of action, the landlord shall
be required to carry the burden of proving that
he used reasonable diligence in attempting to relet the premises. (majority rule for residential
leases)
 Majority rule for commercial leases:
However, some states impose the burden
on the tenant, and this appears to be the
majority
rule
in
cases
involving
commercial leases, for those states that
have addressed the issue.
o By sitting around and waiting for the unpaid rent to accumulate, the
landlord arguably increases damages that could have been avoided by
re-letting the apartment to another tenant.
 States that require the landlord to mitigate damages place an
obligation on the landlord to act reasonably in seeking another
tenant and respect the tenant’s interest in not being bound
unfairly to the lease. If the landlord does mitigate damages,
he can still recover from the tenant the reasonable costs of
finding a new tenant, the rent for the premises while the
premises were vacant and the landlord was looking for a new
tenant, and the difference between the rental price and the
new rent paid by the replacement tenant if it is lower than the
original rent
 However, URLTA goes further, providing that if a landlord
fails to mitigate, “the rental agreement is deemed to be
terminated” and the landlord can recover no damages past
that point.
 Even if the jurisdiction follows the traditional rule, it iw well
advised for landlords who want to protect themselves to
attempt to re-let the premises.
 ULTA provides that if a landlord fails to mitigate the
rental agreement is deemed to be terminated and the
landlord can recover no damages past that point.
Reason for duty to mitigate
o Is efficient because it encourages landlords to rent the premises
rather than leaving them vacant. Because the landlord can be
compensated by the tenant for all the extra costs of re-letting the
premises and still obtain the economic value of the leasehold, rerenting gives the landlord the benefit of the bargain: he is in the
economic position he would been in had the tenant performed.
Reasons against duty to mitigate
o There is no efficiency loss, the landlord bargained for the right not to
have to look for another tenant before the end of the lease term.
This is a property right that the landlord owns. The tenant has
no right to take this right from the landlord without offering
adequate compensation.
 Acceleration Clause
o Makes the rest of the rest of the rent due immediately if the tenant
abandons the premises or otherwise breaches the lease in a material
way.
 Is a form of liquidated damages, the parties agree to the
amount of damages due if one of them breaches.
 Rent Control
o Generally allow rent to rise to market levels when the current tenant
vacates the premises.
o Such laws are intended to allow landlords to obtain a reasonable
return on their investment while protecting the rights of tenants to
continue living in their homes.
o 3000B.C. Bowman Properties
 A covenant of quiet enjoyment is implied into every lease in
the Commonwealth of Pennsylvania. This covenant exists
between the landlord and the tenant and is breached when a
tenant’s possession is impaired by acts of the lessor.
 There is an implied covenant for the quiet enjoyment of
the demised premises, and it is settled that any . . . act
of the landlord which results in an interference of the
tenant’s possession, in whole or in part, is an eviction
for which the landlord is liable in damages to the
tenant.”
 A breach of the covenant can be demonstrated through
constructive eviction, if the tenant can establish that
the utility of the premises has been substantially and
fundamentally impaired.
o The manner in which defendant leased to the
Hair Cuttery violated the covenant of quiet
enjoyment.
 Damages: included the losses from the start of the noise, which
included attorney’s fees, moving fees, and additional rent. Also
awarded damages for spa credits given to customers whose
treatments had been destroyed as well as loss of business goowill and reputation.
If the landlord breaches the lease by physically barring the tenant from the
property, the tenant’s obligation to pay rent ceases entirely. The placement of
new locks on the door constitutes actual eviction.
o A partial actual eviction constitutes a breach of the lease and provides
the tenant with ample justification to move out before the end of the
lease term; the tenant will not be liable for the rent after moving out.



A “constructive” eviction occurs when the landlord substantially interferes
with the tenant’s quiet enjoyment of the premises. The defense of constructive
eviction allows the tenant to stop rent payments and move out before the end
of the lease term. The theory is that when the landlord allows the conditions
in the apartment to deteriorate such that living in the apartment is either
impossible or uncomfortable, her actions are functionally equivalent to
physically barring the tenant from the premises.
 Warranty of Habitability
o Obligates landlords to provide premises that are safe and suitable for
habitation.
o Breach of the warranty entitles tenants to move out before the end
of the lease term or to stay and either stop paying rent or pay a
reduced rent until the improper conditions of the premises are fixed.
o Javins v. First National Realty
 a lease primarily conveyed to the tenant an interest in land
may have been reasonable in a rural, agrarian society; it may
continue to be reasonable in some leases involving farming or
commercial land. In these cases, the value of the lease to the
tenant is the land itself. But in the case of the modern
apartment dweller, the value of the lease is that it gives him
a place to live. The city dweller who seeks to lease an
apartment on the third floor of a tenement has little interest
in the land 30 or 40 feet below, or even in the bare right to
possession within the four walls of his apartment.
 Product Liabilityan apartment is like a product and if the
apartment is defective then the courts should hold the sellers
and developers of real property responsible for the quality of
their product.
 the common law itself must recognize the landlord’s obligation
to keep his premises in a habitable condition. This conclusion
is compelled by three separate considerations.
 Today’s urban tenants, the vast majority of whom live in
multiple dwelling houses, are interested, not in the land, but
solely in “a house suitable for occupation.” Furthermore,
today’s city dweller usually has a single, specialized skill
unrelated to maintenance work; he is unable to make repairs
like the “jack-of-all-trades” farmer who was the common law’s
model of the lessee. Further, unlike his agrarian predecessor
who often remained on one piece of land for his entire life,
urban tenants today are more mobile than ever before.
 A tenant’s tenure in a specific apartment will often not
be sufficient to justify efforts at repairs. In addition, the
increasing complexity of today’s dwellings renders them
much more difficult to repair than the structures of

earlier times. In a multiple dwelling repair may require
access to equipment and areas in the control of the
landlord. Low and middle income tenants, even if they
were interested in making repairs, would be unable to
obtain any financing for major repairs since they have
no long-term interest in the property.
 The landlord sells housing as a commercial businessman and
has much greater opportunity, incentive and capacity to
inspect and maintain the condition of his building. Moreover,
the tenant must rely upon the skill and bona fides of his
landlord at least as much as a car buyer must rely upon the
car manufacturer. In dealing with major problems, such as
heating, plumbing, electrical or structural defects, the tenant’s
position corresponds precisely with “the ordinary consumer
who cannot be expected to have the knowledge or capacity or
even the opportunity to make adequate inspection of
mechanical instrumentalities, like automobiles, and to decide
for himself whether they are reasonably fit for the designed
purpose.”
 Since a lease contract specifies a particular period of
time during which the tenant has a right to use his
apartment for shelter, he may legitimately expect that
the apartment will be fit for habitation for the time
period for which it is rented
 Since the lessees continue to pay the same rent, they
were entitled to expect that the landlord would continue
to keep the premises in their beginning condition
during the lease term. It is precisely such expectations
that the law now recognizes as deserving of formal,
legal protection.
 There is also an inequality in bargaining power between the
landlord and the tenant.
 The increasing shortage of adequate housing further
increases the landlord’s bargaining power.
 Building codes set minimum requirements for a building’s structural
safety, water and waste systems, mechanical equipment, electrical wiring,
and other standards.
 Housing codes regulate the safety and sanitary conditions of residential
buildings.
o If a condition in a rental unit fails to meet the standards of the
housing code, a tenant may have distinct rights under her lease and
the housing code.
Many courts hold that the implied warranty is not violated until the landlord
has been notified of the problem and has a reasonable opportunity to fix it.

o However, some courts find a violation the moment the condition
occurs.
Remedies
o Rescission or right to move out before the end of the lease tern
 The landlord’s violation of his contractual obligations to
provide a habitable apartment entitle the tenant to stop
performance of her contractual obligations.
o Rent withholding
 The tenant ordinarily has the right to stop paying rent and
continue living in the premises.
 If the landlord sues the tenant for back rent the tenant may
raise the violation of the warranty as a defense to the claim for
back rent.
 If the landlord has breached the implied warranty then the
tenant’s failure to pay rent does not constitute a breach of the
tenant’s contractual obligations.
 Look at big outline for more notes.
o Rent abatement
 The tenant is ordinarily entitled to a reduction in the rent. The
tenant can sue the landlord for a declaratory judgment that
the landlord has violated the implied warrant and ask the
court to order the landlord to reimburse the tenant for all or a
portion of the rent previously paid.
 The amount depends on the jurisdiction.
o Repaid and deduct
 Tenant may be able to pay for needed repairs herself and then
deduct the cost of the repairs from the rent paid to the
landlord.
o Administrative remedies
 The housing code may include procedures for enforcement.
o Criminal Penalties
 Fines and imprisonment for landlords who fail to fix
dangerous and unlawful conditions in their apartment
buildings.
o Compensatory Damages
 Natural Disasters and other events beyond a landlord’s control
o Conditions occasioned by acts of third parties or natural disasters
may be within the scope of the warranty.
 Public Policy
o Right Based Arguments (more notes in big outline)
 advocates might argue that making particular terms
nondisclaimable prevents tenants from agreeing to waive the
right to withhold rent in return for lower rent, even if they
wish to do so.
On the other side is the argument that no one would
voluntarily agree to rent an apartment that did not comply
with minimum standards of habitability or similarly waive
other central aspects of a rented home; the fact that people
agree to do so is evidence not that they affirmatively wanted
to agree but that they were forced to agree because they had
no legally or practically available alternatives.
o Economic Arguments
 if tenants are willing to live in less well-maintained
apartments, they should be able to enter into a contract for
lower rent and then have money available to use for other
things such as food and clothing. Some also argue that
landlords will respond to the additional legal and economic
exposure created by new tenant rights by attempting to raise
the rent.
 On the other hand, substandard housing creates significant
externalities — third-party effects that are not internalized by
the parties — such as medical problems for residents and
community blight. And predicting, a priori, what effects rights
such as the implied warranty will have on the market depends
on a host of factors affecting both demand and supply.
Chapter 15
Eminent Domain
 When the federal and state governments have the power to take property
by eminent domain.
o The Fifth Amendment provides that “Nor shall private property be
taken for public use, without just compensation.”
 Eminent Domain Questions
o (1) is there a a private property
 Yes (might be an eminent domain question)
o (2) Has the private property been taken for public use?
 What is taken?
 Repossession by the government
 Regulation?
 What is public use?
o (3) Has just compensation been paid for the private property taken
for public use?
 How much money do you need to give the landowner for the
private property that has been taken?
 Eminent Domain is usually regulated by statute.
o When the government acquires property without the owner’s
consent, it is usually clear that a taking has occurred and
compensation must be paid. However, where governmental actions
interfere with an owner’s property rights but do not involve an actual




transfer to the government, the question is whether there has been
a “taking” at all.
Public Use
Kelo v. City of New London
o it has long been accepted that the sovereign may not take the
property of A for the sole purpose of transferring it to another private
party B, even though A is paid just compensation. On the other hand,
it is equally clear that a State may transfer property from one private
party to another if future “use by the public” is the purpose of the
taking; the condemnation of land for a railroad with common-carrier
duties is a familiar example. Neither of these propositions, however,
determines the disposition of this case.
 Nor would the City be allowed to take property under the mere
pretext of a public purpose, when its actual purpose was to
bestow a private benefit. The takings before us, however,
would be executed pursuant to a “carefully considered”
development plan.
o the government’s pursuit of a public purpose will often benefit
individual private parties.
 There has already been a blurring in prior cases.
 This wasn’t just an arbitrary plan for A to give to B. There was
a plan and a lot of time then went into planning.
 Promoting economic development is a traditional and long
accepted function of government.
 Clearly, there is no basis for exempting economic development
from our traditionally broad understanding of public purpose.
o A constitutional rule that required postponement of the judicial
approval of every condemnation until the likelihood of success of the
plan had been assured would unquestionably impose a significant
impediment to the successful consummation of many such plans.
(reasonable certainty is not required)
o (reasonable certainty is not required)
 Just need to show that the city has a legitimate purpose and
their reasons are rational. We need to defer to the legislature.
o Look at Dissent and Concurrence opinions in long outline**
Just Compensation
o The U.S. Constitution requires payment of just compensation when
private property is taken for public use.
 The Supreme Court has held that this requires payment of the
fair market value of the property prior to the taking.
 The amount the property would likely sell for on the
open market
 Compensation is measured by the damage suffered to
the owner, not the benefit attained by the government.
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Fair-market value is likely to undercompensate the owner.
 A person who is not trying to sell her property likely
values it more than fair market value (sentimental
value)
Super-compensation statutes
 Some states have legislation mandating payment of 125
or 150 percent of fair market value when property is
taken for public use.
 These statutes have a side effect of impeding voluntary
transfers of property to the government at fair market
value.
Moving Costs
 Does not included moving costs, because the
constitution provides compensation for the property
taken and nothing else.
Business Goodwill
 The value which inheres in the fixed and favorable
consideration of customers arising from an established
and well-known and well conducted business
 The Supreme Court has refused to grant compensation
for either goodwill or going-concern value on the ground
that only the land and buildings are taken; the business
is free to relocate elsewhere, where it may be as
profitable if not more so. Any barrier to relocation is
merely an incidental result of the taking of the land and
is noncompensable.
 One exception to this general principle is applied in
takings that are not permanent, which may entitle the
business owner to compensation for loss of goodwill.
o The Court accepted the owner’s argument that
because the taking was temporary, the owner
was unable to reestablish its business elsewhere
during the takeover. Thus, the loss of goingconcern value was compensable.
 Severance Damages Imagine an owner has 100 acres
of farmland. If the state takes only 40 acres from the
owner to build a government facility, rather than the
property as a whole, it must compensate not only for the
fair market value of those 40 acres but also for any
reduction in value to the remaining 60 acres caused by
the taking of the 40. This reduction in the value of the
remaining 60 acres
o Special Benefit sometimes the taking will
increase the value of the owner’s remaining
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property by providing a special benefit that will
not accrue to the public at large. This can
happen, for example, by placing a major road
along the land in a way that will increase its
attractiveness to retail business. Where there are
severance damages and special benefits, courts
will generally reduce, or offset, the severance
damages by the amount of the special benefit.
Some courts allow an offset for both special and
general benefits accruing to the remaining
property.
Penn Central Transportation v. New York City
o the Court’s decisions have identified several factors that have
particular significance. (Weigh the factorsnot a bright line rule
 (1) The economic impact of the regulation on the claimant and,
particularly,
 (2) the extent to which the regulation has interfered with
distinct investment-backed expectations are, of course,
relevant considerations. So, too, is the
 (3) character of the governmental action.
 A “taking” may more readily be found when the
interference with property can be characterized as a
physical invasion by government, than when
interference arises from some public program adjusting
the benefits and burdens of economic life to promote the
common good.
o In deciding whether a particular governmental action has effected a
taking, this Court focuses rather both on the character of the action
and on the nature and extent of the interference with rights in the
parcel as a whole — here, the city tax block designated as the
“landmark site.”
 In contrast to discriminatory zoning, which is the antithesis of
land-use control as part of some comprehensive plan, the New
York City law embodies a comprehensive plan to preserve
structures of historic or aesthetic interest wherever they
might be found in the city, and as noted, over 400 landmarks
and 31 historic districts have been designated pursuant to this
plan.
o [T]he New York City law does not interfere in any way with the
present uses of the Terminal. Its designation as a landmark not only
permits but contemplates that appellants may continue to use the
property precisely as it has been used for the past 65 years: as a
railroad terminal containing office space and concessions. So the law
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does not interfere with what must be regarded as Penn Central’s
primary expectation concerning the use of the parcel.
Relevant Factors to determine whether fairness and justice require the cost
of a regulatory law to be shared among taxpayers rather than being borne
by the individual property owner whose interests are negatively affected by
the regulation
o In evaluating the ad hoc analysis of fairness and justice in regulatory
takings cases courts generally look to:
o (1) The economic impact of the regulation;
 The greater the diminution in value, the more likely the
regulation will be characterized as a taking. Complete
deprivation of any “economically viable use” is likely to be a
taking unless the regulation denies property rights that never
existed in the first place, such as the right to commit a
nuisance,
 A zoning law that prohibits construction above four stories can
be understood as destroying a separate parcel of “air rights,”
which can, after all, be bought and sold and are valuable
property interests. If, however, the property right is defined
more broadly as “the right to build on one’s parcel,” then the
ordinance will restrict a much smaller percentage of the total
property value since it allows construction up to four stories.
o (2) Its interference with reasonable investment backed expectations;
and
 A regulation is more likely to be held a taking if a citizen has
already invested substantially in reasonable reliance on an
existing statutory or regulatory scheme. It is less likely to be
ruled a taking if the regulation prevents the owner from
realizing an expected benefit in the future, imposing a mere
opportunity cost, as was the case in Penn Central.
o (3) The character of the governmental action.
 The state is generally empowered to legislate to protect the
public without compensating those whose property interests
suffer a resultant economic impact. “Government hardly could
go on if to some extent values incident to property could not be
diminished without paying for every such change in the
general law
 if “protecting the public welfare” is sufficient to characterize a
government action as a legitimate regulation rather than an
unconstitutional taking, then the government will be able to
destroy property interests at will without compensation and
the takings clause will be meaningless.
Public Policy
o Justifications for Regulatory Takings (look at big outline)
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 Tradition
 Efficiency
 Distributive Justice
Loretto v. Teleprompter Manhattan
o we have long considered a physical intrusion by government to be a
property restriction of an unusually serious character for purposes of
the Takings Clause. Our cases further establish that when the
physical intrusion reaches the extreme form of a permanent physical
occupation, a taking has occurred. In such a case, “the character of
the government action” not only is an important factor in resolving
whether the action works a taking but also is determinative.
 Permanent physical occupation is per se a taking. You
do not need to go through the Penn Central Test.
o the government does not simply take a single “strand” from the
“bundle” of property rights: it chops through the bundle, taking a
slice of every strand.
 To the extent that the government permanently
occupies physical property, it effectively destroys each
of these rights.
o First, the owner has no right to possess the
occupied space himself, and also has no power to
exclude the occupier from possession and use of
the space. The power to exclude has traditionally
been considered one of the most treasured
strands in an owner’s bundle of property rights.
o Second, the permanent physical occupation of
property forever denies the owner any power to
control the use of the property; he not only cannot
exclude others, but can make no nonpossessory
use of the property. Although deprivation of the
right to use and obtain a profit from property is
not, in every case, independently sufficient to
establish a taking, it is clearly relevant.
o Finally, even though the owner may retain the
bare legal right to dispose of the occupied space
by transfer or sale, the permanent occupation of
that space by a stranger will ordinarily empty the
right of any value, since the purchaser will also
be unable to make any use of the property.
 an owner suffers a special kind of injury when a stranger
directly invades and occupies the owner’s property. [P]roperty
law has long protected an owner’s expectation that he will be
relatively undisturbed at least in the possession of his
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property. To require, as well, that the owner permit another
to exercise complete dominion literally adds insult to injury.
o The Government didn’t bring up eminent domain because they would
have had to provide just compensation. It’s easier to say it’s a taking.
Dissent: teach that nonphysical government intrusions on private property,
such as zoning ordinances and other land-use restrictions may diminish the
value of private property far more than minor physical touchings.
Nevertheless, as the Court recognizes, it has “often upheld substantial
regulation of an owner’s use of his own property where deemed necessary
to promote the public interest.”