Property Law Outline—Spring 2022
I. What is property?
Property is not about a person's relationship to a thing, but,
instead, it is about relationships between and among persons with
regard to a thing.
 If the thing is movable, personal property
 Can be tangible or intangible (like I.P.)
 Intangible Property is usually represented
by a writing—assets that cannot be touched or seen but
that have value nonetheless. (stocks, bonds, patents, copyrights, etc.)
 Land and Improvements on it = Real Property
 Personalty Property= tangible, movable things
 Fixture = Permanently attached to real
property, but could be removed.
 Subrogation: a succession to another's right or claim.
A. Trespass—Occurs if land is invaded by a physical
object.
1. Food Lion v. ABC—Property is one of many
strategies available for Food Lion to use for a
remedy.
2. Intel v. Hamidi—Trespass to Chattels
a. Occurs when an intentional interference
with the possession of personal property
causes some actual injury to the property.
B. Exclusion and the Bundle of Rights
1. Jacques v. Steenberg--Punitive damages may, at the
discretion of the jury, be awarded when there are
only nominal and no compensatory damages. The
rationale for this is simply that society’s interest in
deterring unlawful but unharmful conduct is not
great enough to warrant punitive damages.
Nevertheless, the question of whether punitive
damages are available when supported by a nominal
damage award for intentional trespass has not been
answered. The actual harm here is not in any
physical damage to the land, but in the denial of the
owner's legal right to exclude all others. The right to
exclude is "one of the most essential sticks in the
bundle of rights that are commonly characterized as
property."
2. Lloyd Corp v. Tanner--A private business may
constitutionally exclude the distribution of handbills
on its property when those handbills are completely
unrelated to the business’ functions, and there are
alternative means for distributors to relay their
message.
3. Prager University
C. Limits of Exclusion
1. State v. Shack--The ownership of real property does
not include the right to refuse access to individuals
providing government services to workers who are
housed on the property.
a. Issue: ^^ in question form.
b. Factual Background: Defendants entered the
private property of plaintiff for the purpose of
giving aid to migrant farm workers who were
employed by defendant and housed on his
property. Part of such aid was supposed to be
giving legal advice to one of the migrant farm
workers courtesy of a nonprofit corporation
funded by the government pursuant to an act
of Congress. Although offering to let Tejeras
and Shack consult the migrant farm worker,
Tedesco refused to allow a private legal
consultation and when Tejeras and Shack
insisted on privacy, Tedesco filed a written
complaint with the police alleging a violation
of a New Jersey trespassing statute.
c. Reasoning: Rights in real property are not
absolute and are limited by the maintenance of
the well-being of those people that the owner
permits on his land. Tedesco permitted the
migrant farm workers to stay on his land, so
despite his interests in his property, he is not
entitled to refuse access to individuals seeking
to aid those workers. The workers’ rights of
privacy and the opportunity to receive such
public assistance are too fundamental to be
denied. Therefore, Tejeras and Shack did not
invade any property rights of Tedesco and thus
did not violate the trespass statute
2. Commonwealth v. Magadini—The defense of
necessity can apply to an unhoused individual who has
trespassed on property in order to find safe shelter in winter
conditions.
a. Issue: ^^ in question form.
b. Factual Background: The defendant, David
Magadini, was convicted by jury on seven
counts of criminal trespass, each based on the
defendant's presence, in 2014, in privatelyowned buildings where he was the subject of
no trespass orders. Five incidents occurred
between February and March, the sixth
occurred on April 8, and the seventh occurred
on June 10. Before trial and during the charge
conference, the defendant requested a jury
instruction on the defense of necessity,
asserting that his conduct was justified as the
only lawful alternative for a homeless person
facing the “clear and imminent danger” of
exposure to the elements during periods of
extreme outdoor temperatures. The judge
denied the request, concluding that the
defendant had legal alternatives to trespassing
available. As to each conviction, the judge
imposed concurrent sentences of thirty days in
a house of correction. A single justice of the
Appeals Court stayed the sentences pending
resolution of this appeal.
c. Reasoning: The court considered the extremely
cold temperatures on the nights of the
incidents to support the necessity defense.
D. Fee Simple Estates and Future Interests
1. An "Estate in Land"—The amount, degree, nature
and quality of a person's interest in land or other property
2. Fee Simple Estates
a. Resemble layman's concept of ownership
b. Largest, broadest, most exclusive estates
c. Present interests: any one who holds one has
the bundle of rights actively in this moment
3. Future Interest
a. Grantor grants present interest to grantee but
retains future interest
b. Specified future event occurs
 Grantor gets present interest back
 Grantee left with nothing
II. Acquiring Property
A. Possession—the holding or controlling of personal
property, with or without a claim of ownership. It has two
elements: 1) an intent to possess on the part of the possessor,
and 2) his or her actual controlling or holding the
property. Control is key!
**Control=Occupancy
 Why important? A possessor is said to have superior
rights to personal property against all except those
having higher rights or title, and a possessor can
recover possession of an item of personal property or
recover damages for its injury or destruction.
 Constructive Possession: A person being in
constructive possession may not have actual
possession of an item but will be deemed legally as
being in actual possession.
 Relativity of title—the idea that a person can have a
relatively better title or right to possession than
another, while simultaneously having a right
inferior to another person: One way—first in time or
first in right.
 Acquiring Personal Property
o Rule of Capture: One acquires a property right
in fugitive resources (moving resources) by so
entrapping or ensnaring the resource as to
render its escape a virtual impossibility.
 Modern iterations have led to the
exploitation of natural resources.
 Ratione Soli—"On one's own soil." If a
resource is captured by a trespasser on
another's private party, the resource
belongs to the owner of the private
property. –to prevent trespass and to
honor reasonable expectations
o Rule of Finders
o Adverse Possession
o Gifts
 Two types: Inter Vivos Gifts (the gift
made during the givers lifetime); the gifts
causa mortis (the gift in anticipation of
the giver's death)
 Inter Vivos Gifts
 Most common type
 Irrevocable
 Causa Mortis Gifts
 Freely revocable; the giver can
change their mind up until the
moment of their death
 Two ways to deliver: Actual and Symbolic
Delivery
 Delivery is needed to make a gift
valid.
 Actual delivery of the thing itself is
required if possible.
 When actual delivery is impractical,
symbolic delivery is permitted. (For
ex: a key to a house)
o Bailment: the entrusting of goods to another
person for some limited purpose that does not
include transfer of ownership.
 When a bailment is for the mutual
benefit of the bailor and the bailee, the
bailee must use reasonable care in their
custodianship of the item.
1. Pierson v. Post (The Fox Case)
a. Issue=Whether the hunter has taken
possession of the animal.
b. Factual Background: Post was hunting on
public land. While he was pursuing a fox, Pierson intervened, shot the
fox, and carried the animal away.
c. Note that the majority opinion is based in
wanting a rule that keeps the peace, damps down litigation, and is clear
and easy to administer.
d. Holding—Close pursuit after a mortal
wounding gives a hunter a right to possession of an animal that is
superior to another hunter's intervention. Note:
a mortal wound is one that 1) on an objective
basis is likely to prove fatal to the animal, it will—in time—"deprive the
fox of its natural liberty" and 2) shows
subjectively a manifest intention to seize the
animal.
2. Popov v. Hayashi—When a person completes a
significant portion of the steps to achieve possession of an
item, but is thwarted due to the unlawful conduct of another,
that person is entitled to a pre-possessory interest of
the item.
a. Issue= Is a person entitled to an interest in a
piece of property if they achieve significant steps towards possessing
said property, but are thwarted due to the
unlawful conduct of another?
b. Factual Background: Baseball player set the
new record for home runs in a season. When the
record breaking home run was hit, Popov made
contact with his
glove. As it entered the glove, he was
attacked by the people surrounding him. Hayashi
was not involved in the attack, but the ball rolled
to him and he placed it
in his pocket.
c. Reasoning: Both Hayashi and Popov have an
equal undivided interest in the ball, b/c Popov
acquired pre-possessory rights when he was
attacked while catching
it. Popov had exerted some control over the
ball, but had not yet acquired possession. It is
unknown if he would have acquired possession,
because he was attacked by the fans seated
around him. It would be inappropriate to
create an incentive for such attacks to take
place.
3. Elliff v. Texon Drilling-- Negligent waste or
destruction of gas and distillate drained from a neighboring
well under the law of capture is not a legal appropriation of
those minerals.
a. Issue=Does the law of capture absolve a
drilling company’s liability for wasted gas and distillate when the gas
and distillate was drained from a neighboring well
before it was wasted?
b. Factual Background: Eiliffs owned the surface
& mineral rights to 3k acres that overlaid a part
of a large reservoir of oil and gas.
They received royalties from an oil well on the
property. About half of the reservoir lay under
the adjoining land, owned by Clara Driscoll.
Texon Drilling Co. (Texon) (defendant) was
engaged in drilling a well on Driscoll’s
property. One day the Driscoll well blew out
and a large amount of gas, distillate, and oil
from the shared reservoir blew into the air. In
addition, the hole that the Driscoll well created
soon expanded and enveloped and destroyed
the Elliffs’ well. The Elliffs brought a
negligence suit to recover damages for their
lost gas and distillate.
c. Reasoning: A landowner has absolute
ownership in all gas and distillates underneath
his land subject to the law of capture, which
asserts that once gas and
distillate is reasonably drained from under an
individual’s property, that individual no longer
has title to those minerals and it belongs to
whomever’s land under which it drains.
However, this transfer in title is subject to
proper appropriation of the drained minerals.
Negligent waste or destruction of the minerals
does not produce the same transfer of
ownership. Thus, although under the law of
capture Texon had a right to appropriate the
minerals that drained from the Elliffs’ well,
this right of appropriation does not extend to
negligent waste and destruction of the
minerals.
4. Wilcox v. Stroup--When there is not enough evidence
available to establish title to an object, there is a
presumption that an individual in possession of the object is
the
rightful owner.
a. Issue: When there is no other evidence
available may a Court use the common law of possession to establish
ownership?
b. Factual Background: Plaintiff found Civil War
documents in his stepmom's home that had been in possession by their
family since the war ended. He gave the SC
Department of History permission to scan the
documents & sell them to a third party. The defendant acquired a
temporary restraining order preventing Wilcox
from selling the documents.
c. Reasoning: Where neither party can establish
ownership of an object, the person in possession is presumed to be the
owner. In other words, possession is prima
facie evidence of ownership. This presumption
avoids confusion, maintains the status quo, and
encourages those in possession to make
improvements to that which they possess. In
this case, neither Willcox nor Stroup are able to
present sufficient records to establish
ownership of the Civil War documents by a
preponderance of the evidence. As a result, the
court rests on the presumption that because the
documents have been in possession of Willcox’s
family for 140 years, he is the rightful owner.
Further, because Stroup does not have any
evidence sufficient to rebut this presumption,
this court concludes that Willcox is the owner of
the Civil War documents.
B. Finders/Discovery Doctrine—Prior Possessor always
defeats subsequent possessor (assuming that neither is the
rightful owners of the item). The finder defeats
all except for the object's rightful owner.
 A finder of lost property is a person who 1) takes
control of the property and 2) has the intent to
maintain possession of the property.
 Lost Property = property that the true owner
unintentionally and unknowingly dropped or lost
 Mislaid Property = property that the true owner
intentionally placed in a given location and then
left, or intentionally left intending to return for it
later
 Abandoned Property = property the true owner
voluntarily and intentionally relinquished with the
intent to no longer own the object, and without
transferring the rights to another person.
1. Armory v. Delamirie--A person who finds a piece of
chattel has a possessory property interest in the chattel,
which may be enforced against anyone except the true owner
of the chattel.
a. Issue: Does finding an item entitle the finder to
sue for its return when another party takes it from
him?
b. Factual Background: The plaintiff (a chimney
sweep) found a jewel in the course of his duties; he took the jewel to the
defendant (a goldsmith) for purposes of appraisal. Defendant's
apprentice took the jewel
"through deceit" and refused to return it to
plaintiff.
c. Reasoning: The finder’s possessory rights are
superior to everyone else’s except for those of the true owner. Hence,
Armory was entitled to return of the jewel from Delamirie. Here,
Delamirie was liable to Armory
for the acts of his apprentice. Also, because
Delamirie had not returned the actual jewel
and therefore could not prove that it was
damaged or its value was otherwise impaired,
the jury was entitled to presume that the jewel
was of the highest quality and award damages
accordingly
2. Charrier v. Bell--Burying artifacts or other objects
with the deceased is not an intention to relinquish
ownership of those objects.
a. Issue—Question form of ^^^
b. Factual Background: Charrier (plaintiff)
excavated a number of artifacts from a previously undiscovered ancient
burial ground at the Trudeau Plantation in Louisiana. He had no
relation or connection with the
plantation other than his desire to excavate.
Charrier then attempted to sell the artifacts,
but potential buyers were concerned that
Charrier was not their true owner. Charrier
filed suit against the owners of Trudeau
Plantation in order to get a declaratory
judgment that he was the owner of the
artifacts. The trial court held that the TunicaBiloxi Indians were the lawful owners of the
artifacts because they were descendants of the
inhabitants of the Trudeau Plantation.
Charrier appealed, arguing that the Indians
abandoned the artifacts when they moved off
the plantation.
c. Reasoning: When individuals bury objects with
the deceased, their intentions are that those objects remain there
forever, not that they become free for the taking. In such cases intent to
relinquish possession is
not equivalent to intent to relinquish
ownership. Although the ancestors of the
Tunica-Biloxi Indians buried artifacts with
their deceased, it does not mean that they
were relinquishing ownership rights of the
artifacts. Thus, simply finding the long lost
artifacts of the Tunica-Biloxi Indians does not
make Charrier the owner.
3. Johnson v. Macintosh--Land title transfers are only
valid when made under the rule of the currently prevailing
government.
a. Issue: Are land title transfers from Native
tribes to private individuals prior to the American Revolution
recognized in U.S. Court?
b. Factual Background: Plaintiff's father was one
of a group of men granted a tract of land by a Native group of people
who were living there prior to the American Revolution in exchange for
a sum of money. After
the Declaration of Independence, the county of
Illinois, in which the land was located, was
created by the State of Virginia. The Virginia
delegates to Congress then conveyed the land to
the United States government. About 35 years
later, the United States government sold a
portion of the land to William M’Intosh
(defendant). Johnson brought this action to
eject M’Intosh from the land.
c. Reasoning: Land titles transferred to private
individuals under foreign rule before the Revolution are not recognized
by the U.S.
C. Adverse Possession--Rests on the construct that
possession is 9/10 of the law. Possession is sometimes allowed to
ripen into title.
 When applied to finders rights, over time, the mere
possession of an item combined with the other
elements should mature into title.
 An adverse possessor can acquire the title without
the owner's consent by using the property in a way
that is
 continuous: More than merely sporadic or
occasional; substantial intervals OK;
continuous is met if
 considering nature/customary use of
property
 possession is regular and consistent
 congruently with what the true owner
would do
 Examples: Seasonal logging operations in
a densely-wooded area; seasonal
occupancy of a summer cabin
 Continuity Lost: True owner asserts
possession before adverse possession
ripens to title; Trespasser voluntarily
relinquishes possession with no intent to
return (subject to tacking rules); If
trespassor later returns, time is lost and
they must start over.
 hostile (and under a claim of right)
 trespasser actions on the property must
manifest to a reasonable observer a belief
that the property is his.
 Courts are divided about the state of
mind the trespasser must have to meet
this test
 Some use an objective test where
the trespassers subjective beliefs
are irrelevant, and they must
reasonably, objectively appear to
treat property as their own.
 Alternatively, subjective test:
Objective test must be met;
trespasser must honestly and in
good faith believe that the property
belongs to them.
 open & notorious
 True owner actually knows about
possession; or
 Trespasser publicly and openly treats
property as theirs; Uninformed observer
reasonably assumes that the trespasser
is the owner
 No secret possession; must be visible
 for the statutory period;
 Generally the statute of limitations for
trespass
 Starts running when adverse possession
begins
 True owner may stop clock by bringing
suit to remove the A.P.
 Note: The limitations period will not
start running if, at the time the adverse
possession begins, the true owner suffers
from a legal disability, usually minority
or insanity. The owner will have a
specified time after the disability is
removed to bring suit (usually at least 10
years). However, the onset of a disability
after the trespasser takes possession will
not stop the clock if it has already
started.
AND
 exclusive
 Trespasser must behave as if the
property is his as against everyone
including the true owner. Trespasser
must exclude anyone else (including the
true owner) who tries to enter without
their permission.
 Competing adverse possessors cannot
hold land adversely to one another at the
same time. However, two or more
persons who, cooperatively with one
another, adversely possess as against
everyone else except one another may
acquire title as tenants in common
through adverse possession.
 As between two adverse possessors,
neither of which has yet taken full
title, the one who got there first has
the superior interest & may




therefore sue to evict later comers
(but not the true owner).
Some state statutes provide that no one may
acquire title to land by adverse possession
without paying the regular property taxes on it
throughout the statutory period. In all states,
payment of taxes is good evidence that the
adverse possession is hostile and under a claim
of right.
Color of Title: the adverse possessor assumes
possession in reliance on a document that
purports on its face to convey title, but for
some reason is legally insufficient to convey
title. (Ex: Deed that is void b/c the grantor's
signature is forged)
Additional Elements in Some Jurisdictions:
Claim of title or claim of right; good faith or
bad faith; improvement, cultivation, or
enclosure; payment of property taxes
Varied reasoning behind state's
acknowledgement of Adverse Possession
 Punishes true owners who sit on their
rights for too long
 Reward people who use, work on, or
improve property for a long time,
becoming in the process known in the
community as its owners
 Elements are evidentiary tools. Stale
claims to property should be barred.
 Serve a structural purpose facilitating
the transfer of property.
1. Brown v. Gobble--One who seeks to assert title in
land by adverse possession must prove each of the following
for a period of more than ten years: that he has held the land
adversely and that the possession has been
actual, open and notorious, exclusive, continuous,
and under a claim of title or color of title.
**Where there is privity between successive occupants
holding continuously and adversely to the true title holder (and where
neither has yet acquired title by adverse possession), the successive
periods of occupation may
be tacked to each other to compute the required
period."
 In this context, privity means voluntary
relinquishment of possession by the earlier
adverse possessor in favor of the later one.
a. Issue: May one claiming adverse possession of
a property add to the number of years he has been in possession in the
eyes of the statute by tacking on the number of years that a previous
possessor of the property
was in adverse possession?
b. Factual Background: Defendants and plaintiffs
were neighbors. Properties were divided by a 2 ft. wide tract of land
owned by the Browns. The family before the Gobbles and then followed
by the Gobbles had used
the two ft. tract as their own, enclosed by the
Good Ex. of
Going through
fence,
the entire time they lived there until the Browns decided to build
Factors
a road along it. (The adverse possession statute in WV is ten years).
c. Reasoning: As long as the transfer of possession
of the land in question was made in privity of
title or claim, one claiming adverse possession
may add his years in adverse possession to
those of a predecessor to establish the
statutory minimum. Possession of land is
considered adverse, or hostile, if it is against
the right of the true owner. Possession of land
is considered actual if the land is actually used
for residency, enjoyment, or cultivation.
Possession of land is considered open and
notorious if the true owner has notice of the
possession. Possession of land is considered
exclusive if the possessor is the only one to use
the land as an owner would during the time
period. Possession of land is considered
continuous if there were no extended breaks
during the time period and any transfer of the
possession involved with the process of tacking
is done in privity of the claim. Finally,
possession of land is considered in color of title
if the possessor had no actual title, but claimed
ownership pursuant to the elements above.
The Gobbles meet each of these requirements,
as did the Fletchers before them: the Gobbles
have maintained a fence along the two-feetwide tract making their possession adverse;
they have planted a garden and mowed the
lawn, making the possession actual; the
general feeling in the community is that the
tract belongs to the Gobbles, making the
possession open and notorious; the Gobbles
testified that they have been in sole possession
of the tract and no one has objected (until the
Browns tried to build the road), making the
possession exclusive; the Fletchers passed the
tract directly on to the Gobbles under a claim
of adverse possession, making the possession
continuous for the time period; and finally, the
Gobbles do not have actual title to the tract,
but are claiming ownership under color of title.
In addition, the Gobbles meet the statutorily
required time period when their more than
nine years of adverse possession is added to
the multiple years that the Fletchers were in
adverse possession.
2. Nome 2000 v. Faegstrom--The actions required for adverse
possession depend on the character of the land in question,
and the requirements will be met if the land is used for the
statutory period as an average owner of
similar property would use it.
a. Issue: May one claim adverse possession of a
parcel of land without being physically on the land during the entire
statutory period, without excluding all who come upon the land, or
without giving actual notice of
one’s possession to the title holder?
b. Factual Background: Two parcels of land
(north and south ends). Defendants used the northern parcel of land
seasonally—it was not suited for winter of residency—for a period of
several years. They used it to
house their camper trail, plant trees, build a
picnic area, an outhouse, a fish rack, and a reindeer shelter. They also
built a cabin on the parcel nine years prior to the lawsuit. They only
used the southern parcel
recreation on preexisting trails and to pick up
trash. People in the community testified that they thought the
defendants owned the property. Nome 2000 (a mining company)
admitted that the defendants had
adversely possessed the land, but filed a claim
to eject them.
c. Reasoning: The elements must be evaluated in
the light of the land at issue. A claim will be valid if the land is used for
the statutory period in the way an average owner of a similar piece of
land would use it. The
Fagerstroms’ use of the northern parcel is
continuous because the parcel is suitable only
for seasonal use, which is how they used it.
Their use is exclusive even though they allowed
others on the land because such actions are
consistent with a reasonably hospitable
landowner. Their use is adverse because they
did not have permission from Nome 2000.
Finally, their use is open and notorious even
though they gave no actual notice of possession
because a simple visit to the parcel by Nome
2000 would have been enough for the owner to
be put on notice. As a result, the Fagerstroms
have acquired adverse possession as to the
northern parcel. In terms of the southern
parcel, the Fagerstroms’ use of the trails and
picking up trash are not sufficient to provide a
reasonable owner notice of their possession of
the parcel because any visitor or passerby
would use the land in the same way. Therefore,
the Fagerstroms have not acquired adverse
possession as to the southern parcel.
III. Inheritance
1. Intestacy Laws
a. Default rules for succession
i. Decedent can be partially intestate (not having
made a will).
b. What are the legal options in absence of a will?
i. Intent is to carry out the probable intent of the
typical testator
 Not actual intent
 Not the particular decedent in question
ii. Original Uniform Probate Code (1969)—
"reflect the normal desire of the owner of wealth as to
disposition of his property @ death."
c. Basic Hierarchy
 Spouses
 Children
 Grandchildren
 Parents
 Siblings & Nieces/Nephews
 Grandparents
 Aunts/Uncles
 Cousins
 Stepchildren
The reversion of property to
 The State
the State
2. Hodel v. Irving-- An escheatment provision that
completely abrogates the right to devise a class of property
interests constitutes a taking without compensation in violation of
the United States Constitution.
**Freedom of Disposition
a. Issue: ^^ in question form.
b. Factual Background: The Sioux land allotment
statute provided that the lands would be held in trust by the United
States. ∴ could not be sold or partitioned or passed to subsequent
generations as undivided interests
and became increasingly fractionated with each
generation. In 1983, Congress passed the Indian Land Consolidation
Act to address the problem, barring the descent or devise of fractional
interests in Native land
allotments, requiring instead the fractional interest
escheat. Sioux tribe members brought suit against the U.S. asserting
that this action was an illegal taking.
c. Reasoning: By prohibiting members of Native tribes
from passing to their heirs certain fractional
interests in allotted lands by either descent or devise,
Section 207 of the Indian Land Consolidation Act
abolished the right of descent or devise for these
interests and effected a taking without just
compensation. While state and federal governments
may adjust the laws governing descent and devise,
they may not completely eliminate these rights.
3. Limits on Freedom of Disposition
a. Taxes
b. Spousal Share
c. Public Policy Limits
i. Racial Restrictions
ii. Waste
iii. Unreasonable Restraints On Marriage
4. Freedom of Disposition & Conveyance by Will
a. Must have: 1) a writing, 2) signature, 3) witnesses
(or notary under UPC)
b. Functions
i. Evidentiary
ii. Cautionary/Ritual
iii. Protective
iv. Channeling
v. Expressive
5. Harmless Error Rule—The harmless error statutes allow
a noncompliant will to be probated if clear and convincing evidence
demonstrates that the decedent intended the document at issue to be
the
decedent's will.
a. Adopted in Roughly 11 states as of 2016.
6. Litevich v. Probate Court—Case holding (court decision
not to apply the harmless error rule) illustrates the commitment
to formality of the U.S. Court system in interpreting & enforcing
conveyance by will.
a. Factual Background: Testator felt that her health
was failing, so decided to create an account w/ an online doc. provider
and went through the will drafting process on that website. She paid for
a paper copy with her
credit card and it was mailed to her. She did not
immediately sign it, because she incorrectly thought that if she signed
w/out it being notarized, it would become invalidated. She died without
signing the document,
and this case was an effort by her loved ones to get
the will validated.
b. Reasoning—Beneficiaries alleged several facts
intended to legitimize the document: the provider
required her to confirm each of the documents she
had created, which they argued was tantamount to a
signature. However, the court chose not to apply the
harmless error rule bc 1) it was not enumerated in a
statute yet in this jurisdiction, and 2) they felt that
it would not have applied because of the "severity of
the defects affecting the web-drafted document."
IV. Subject Matter of Property
A. Patent
1. Patentable Subject Matter: "…any new & useful process,
machine, manufacture, or composition of matter, or any new and useful
improvement thereof…"
2. Scope & Term of Patent Rights
a. Requires Application & Grant from Patent Office
b. Must be novel, non-obvious, useful, and adequately
described
c. 20 years from date of filing (lifespan)
d. Right to exclude others from making, using, selling,
offering for sale, and importing
e. No independent invention defense
f. No fair use.
3. Non-Patentable Subject Matter
a. Natural Phenomena
b. Laws of Nature
c. Abstract Ideas
4. Association for Molecular Pathology v. Myriad Genetics,
Inc.--A naturally occurring DNA segment is not patentable merely
because it has been isolated.
a. Factual Background: Myriad discovered the exact
location of certain genes, the mutation of which significantly increases a
woman's chance of breast cancer. They were able to isolate the genes
and conduct tests to
determine whether a woman has an increased risk of
breast cancer. Obtained a number of patents, including one that gave
Myriad the exclusive right to isolate genes, and one that would give
them the exclusive right
synthetically create the genes from mRNA. Plaintiff
filed suit seeking to invalidate patents.
b. Reasoning--Under 35 U.S.C. § 101, “Whoever invents
or discovers any new and useful . . . composition of matter, or
any new and useful improvement thereof, may obtain a
patent therefore.” However,
groundbreaking discovery does not by itself satisfy
this standard. Moreover, naturally occurring things
may not be patented because “they are the basic
tools of scientific and technological work” that
individuals use to create and innovate. Thus, a
naturally occurring DNA segment is not patentable
merely because it has been isolated. In the case at
bar, Myriad’s patent for the isolation of the genes in
question is invalid. Myriad did not create anything
new, but merely discovered something naturally
occurring in a pair of genes. And Myriad’s isolation
of those genes is not “new . . . composition of
matter.” However, the Court does determine that
Myriad’s creation of the synthetic version of the
genes (cDNA) is patentable because the cDNA is
created in a lab and is not naturally occurring.
5. Juicy Whip, Inc. v. Orange Bang, Inc.--Where a patented
product’s purpose and value rests in the fact that it looks like another
product, that product satisfies the utility requirement.
a. Issue: Where a patent claims a product with the
purpose of deceiving a consumer, does that strip the claim of utility?
b. Factual Background: Plaintiff sued for infringement
of its patent, which claimed a drink-dispensing
device. This device dispensed a “post-mix” beverage,
which is one where syrup concentrate and water are
mixed outside the view of the consumer at the time
the beverage is being dispensed. However, the
device also included a countertop display of
agitating non-potable fluids meant to encourage a
consumer to buy a drink. In essence, the consumer
would see a large apparatus mixing a fluid and,
enticed by the fluid, purchase a beverage thinking
that they are receiving a visible “pre-mix” beverage,
when in fact the consumer was receiving a “postmix” beverage that is created out of sight. This
device had the advantages of improved hygiene and
ease of use, but in essence its purpose was to deceive
the consumer. Orange Bang, on summary judgment,
argued that the patented drink dispenser lacked
utility under 35 U.S.C. §101 because its purpose was
to deceive consumers.
c. Reasoning: Utility = a low threshold to meet; must
only "confer some benefit." Notes 1817 case
excluding "a new invention to poison people, or to
promote debauchery, or to facilitate private
assassination" from being patentable. Court uses
examples of cubic zirconium substituted for
diamond, imitation gold for real gold, synthetic
fabrics for genuine ones, etc. as examples where the
making of one product to look like another provides
utility. Similarly, the value of plaintiff's invention is
that it gives the impression that it is a pre-mix
beverage dispenser when in fact it is not.
6. Ebay Inc. v. MercExchange, LLC.--Under the Patent Act,
in order to issue a permanent injunction, a plaintiff must satisfy the
traditional four-factor test, which requires that the plaintiff
demonstrate (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 warranted; and (4) that the public interest
would not be disserved by a permanent injunction.
a. Issue: Which test must a plaintiff satisfy under the
Patent Act?
b. Factual Background: MercExchange held several
patents including one for the "business method for an
electronic market designed to facilitate the sale of goods
between private individuals by establishing a central
authority to promote trust among participants."
Attempted to license its patent with eBay but they did not
come up with an agreement. Plaintiff sued eBay for
patent infringement.
c. Under the Patent Act, in order to issue a permanent
injunction, a plaintiff must satisfy the traditional
four-factor test, which requires that the plaintiff
demonstrate (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 warranted; and (4) that the
public interest would not be disserved by a
permanent injunction. The Patent Act states that
patents are to be treated as personal property. 35
U.S.C. § 261. A patent holder has the right to
exclude others from using the invention. 35 U.S.C. §
154(a)(1). However, the creation of this right is
distinct from the remedies provided to address
violations of that right. With respect to injunctions,
the Patent Act states than an injunction may issue
in accordance with the principles of equity.
B. Copyright
1. Copyrightable Subject Matter—"Copyright protection
subsists in original works of authorship fixed in any tangible medium of
expression." 17 USC § 10.
2. What are the bundle of rights associated with copyright?
a. Exclusive rights to reproduce, distribute, publicly
display, perform, and prepare derivative works.
3. Major Limits
a. Duration: Life of author + 70 years
b. Subject Matter Exclusions (Ideas v. Original
Expression)
c. Defenses (Fair Use)
4. Exclusions—No protection "for any idea, procedure,
process, system, method of operation, concept, principle, or discovery."—
17 USC § 102.
5. Feist Publications v. Rural Television Service Co.--To be
granted copyright protection, works must be original, meaning that
they entail some minimal degree of creativity.
a. Issue: Is a phonebook arranged alphabetically
sufficiently original to warrant copyright protection?
b. Factual Background: Rural Telephone Service
(Rural) (plaintiff) published a phonebook which lists the names of its
subscribers alphabetically in its white pages. Feist Publications (Feist)
(defendant) distributed a
similar phonebook although covering a larger
geographical area. Rural obtained the information
for its white pages directly from its subscribers. In
order to obtain its white pages listings, Feist
contacted Rural and other phone companies offering
to pay to use their white pages listings. Rural denied
Feist permission to use its listings because the two
companies compete for advertising revenue.
However, Feist used Rural’s listings anyway,
without its permission. When Rural found out, it
sued Feist for copyright infringement.
c. Reasoning: Facts are not copyrightable, and although
compilations of facts may be, they are not copyrightable per se.
Compilations still must be original works of authorship in that they
consist of some degree of
minimal creativity. Although Rural selected which
facts to include in its phonebook, these facts are arranged
alphabetically, which is by no means a creative arrangement.
6. SunTrust Bank v. Houghton Mifflin Co. (The Wind Done
Gone)--Use of a copyrighted work may not be copyright infringement
where the use is for purposes of critique, comment, or parody.
a. Issue: Should a book that uses characters, plotlines,
and major scenes from a copyrighted work to critique an aspect of that
work be enjoined from publication based on copyright infringement?
b. Factual Background: Houghton Mifflin (defendant)
was the publisher of a book called The Wind Done Gone (TWDG) which
was based on the famous book, Gone with the Wind (GWTW). TWDG
served as a critique of
the depiction of slavery in the south in GWTW by
using characters, plot, and major scenes from
GWTW. SunTrust (plaintiff) is the copyright holder
of GWTW and brought a copyright infringement suit
against Houghton Mifflin. As part of the suit,
SunTrust requested a preliminary injunction, which
was granted by the district court. Houghton Mifflin
appealed.
c. Reasoning: Even if a book takes substantially from a
copyrighted work, it may not be copyright
infringement if the new work is entitled to the
affirmative defense of fair use in that it uses
the copyrighted
work for purposes of comment or critique. In
determining whether a work is entitled to the fair
use defense, the court looks at the following factors:
the purpose and character of the work, the nature of
the copyrighted work, the amount and
substantiality of the portion used, and the effect on
the market value of the original work. As to the first
factor, TWDG is a commercial product, which
weighs against fair use, but because TWDG adds a
new meaning to GWTW by transforming its
copyrighted elements into a critique, this factor as a
whole weighs in favor of a finding of fair use. As to
the second factor, because GWTW is an original
work of fiction, it is entitled to a high degree of
protection and so this factor weights against a
finding of fair use. As to the third factor, TWDG
does take a substantial portion of GWTW; however,
a certain portion is necessary in order to “conjure
up” an image of GWTW, which is necessary for the
criticism. As a result, this factor remains neutral in
this fair use analysis. Finally, as to the fourth factor,
it is unlikely that TWDG would supplant GWTW in
the marketplace because they are such different
works in different genres, so this factor weighs in
favor of a finding of fair use. Accordingly, based on
an analysis of the factors as a whole, TWDG is
entitled to a fair use defense because only one factor
out of four weighs against such a finding. As a
result, the preliminary injunction is vacated and the
case is remanded.
C. Trademark & Publicity Rights
1. Subject Matter: Any sign, word, symbol, or design that
indicates the source of goods or services.
2. Scope & Term of Trademark:
a. Lanham Act
b. Authorized under the Commerce Clause
c. Registration is optional, but valuable.
d. Duration = infinite
e. Infringement = use in commerce + likelihood of
consumer confusion
f. Dilution = uses that impair the distinctiveness of a
trademark
3. Qualitex Co. v. Jacobson Products Co.--Color, on its own,
can be trademarked if it meets all other legal requirements of a
trademark.
a. Issue: ^^ in Question form.
b. Factual Background: Plaintiff = dry cleaning
business and used a distinct green color on the dry cleaning press pads
it sold. Defendant began selling pads of a similar color. Qualitex then
registered its green-gold color
with the Patent and Trademark Office and brought
this trademark-infringement suit against Jacobson
challenging its use of the green-gold color.
c. Reasoning: Colors, on their own, can be
trademarked because they are capable in certain circumstances of
satisfying the requirements of a trademark. Colors have the ability,
similar to words or symbols, to acquire a
secondary meaning in that they are able to come to
identify and distinguish the source of goods. In
addition, colors generally are not essential to a
product’s function and thus the exclusive use of a
color by way of a trademark would not put
competitors at a functional disadvantage. Here,
Qualitex’s green-gold color meets these
requirements. First, the color has acquired a
secondary meaning because customers have come to
identify the color as indicative of the Qualitex
product. And second, the green-gold color serves no
function other than this visual recognition.
Therefore, because the color meets these
requirements and because Jacobson is not able to
present a convincing reason of why the color should
not be used as a trademark, Qualitex’s green-gold
color can be trademarked.
4. Limits:
a. Marks w/out Inherent Distinctiveness or Secondary
Meaning
b. Generic Terms
c. Deceptive Marks
d. Back and forth regarding scandalous or "immoral"
marks
5. Right to Publicity
a. "Every personality or individual has a property right
in the use of their name, voice, signature, photograph or likeness.
b. Does not require consumer confusion
c. State Law
i. Common & Statutory
ii. Often limited to commercial or advertising
uses
iii. Sometimes limited to celebrities
iv. Duration varies greatly
v. As does jurisdictional reach
vi. As do exemptions (movies & tv)
**Vanna White Case: Held that the Samsung Commercial
violated the right to her likeness.
D. Bodies
1. Moore v. Regents--(1) A physician has a fiduciary duty to
disclose all material personal interests that may influence her
professional judgment before securing a patient’s informed consent to
medical treatment. (2) Once cells
leave a patient’s body, they are no longer that patient’s
property.
a. Issue: ^^ in Question form.
b. Factual Background: John Moore (plaintiff)
underwent treatment for leukemia at the University of California,
Los Angeles (UCLA) Medical Center. There, Dr. David Golde
(defendant) recommended removal of Moore’s
spleen. Golde then used Moore’s cells for research
without Moore’s permission. Golde established a
patented cell line, which he licensed for commercial
development. The patent was held by the Regents of
the University of California (Regents) (defendant),
and listed as inventors Golde and UCLA researcher
Shirley Quan (defendant). The defendants made a
significant amount of money from the cell line.
Moore filed a thirteen-count lawsuit. Specifically,
Moore sued for lack of informed consent and breach
of fiduciary duty, due to the defendants’ omission of
their financial interests in Moore’s cells. Moore also
sued for conversion.
c. Reasoning:
1. A physician must disclose all personal interests
in a medical procedure that may influence her professional judgment
before securing the patient’s informed consent. A competent adult has
the right to decide
whether or not to receive medical treatment. A
physician must secure the patient’s informed
consent to treatment, and the physician is
under a fiduciary duty to give the patient all
information material to that decision. Thus, it
is necessary that a physician disclose any
personal interests in the treatment that may
influence her professional judgment. A
reasonable patient would want to know that
her doctor has an unrelated research or
financial interest in her treatment. Consent is
thus ineffective if the physician fails to make
these disclosures, and the physician may be
subject to liability for providing medical
treatment without consent or breach of duty.
Physicians are free to conduct research, but
the goals of research may conflict with patient
care. Here, Golde argues that research on a
patient’s cells after removal has no impact on
her medical interests. That is true if the doctor
has no intent to use the cells for research when
recommending the procedure, but not if the
physician has a “preexisting research interest.”
Unfortunately, a patient may refuse a
treatment in reaction to disclosure of research
and economic interests, rather than her own
health interests. This does not justify
physicians having unlimited discretion to
withhold material information. Of course, just
as there is no duty to disclose remote medical
risks, there is no duty to disclose insignificant
research interests. Moore stated a valid cause
of action for lack of informed consent for his
spleen removal and subsequent tissue
samples, because Golde failed to disclose his
financial interests. Further, the remaining
defendants may be vicariously liable.
2. Once cells leave a patient’s body after surgery,
she no longer has sufficient ownership rights to uphold a conversion
claim. Conversion occurs when a party interferes with another’s
property ownership or right to
possession. To date, no court has allowed a
conversion action for use of a patient’s cells in
medical research. Further, permitting a
patient to recover in such a case implicates
serious public policy considerations related to
medical research. Generally, excised cells are
treated as medical waste under statute, and
patients have no ongoing property interest.
Under existing law, Moore has no conversion
claim. Moore did not expect to retain
possession of his cells after surgery. Moore’s
analogy to privacy rights is unpersuasive. The
lymphokines that Golde and Quan produced
from Moore’s cells have the same molecular
structure in every human; they are not unique
to Moore. The patent was for a cell line that is
distinct from Moore’s cells. Further, patents
are unavailable for an individual’s cells; there
must be some form of “human ingenuity”
added. The cell line Golde developed is unique
and patentable, unlike Moore’s cells
themselves. Moore can claim no interest in the
patent. Accordingly, because Moore has no
property interest in his cells or the patent, he
is unable to state a cause of action for
conversion
2. Flynn v. Holder--(1) The inclusion of bone marrow in the
definition of a “human organ” under the National Organ Transplant Act
does not violate the Equal Protection Clause.
(2) The National Organ Transplant Act does not ban
compensating individuals who donate bone marrow through peripheral
blood stem cell apheresis.
a. Issue: ^^ in question form.
b. Factual Background--Bone marrow was traditionally
donated by extracting the marrow from donors’ bones with a long needle
(i.e., aspiration). However, in the last 20 years, a new technique called
peripheral blood
stem cell apheresis was introduced. Through
peripheral blood stem cell apheresis, the necessary
stem cells are extracted by taking blood from donors’
veins. The National Organ Transplant Act (Act)
classified bone marrow as a human organ and
prohibited individuals from being compensated for
their bone-marrow donations, thus limiting the
number of potential donors. Parents of children with
terminal diseases, a physician, and
MoreMarrowDonors.org, a not-for-profit advocacy
organization (plaintiffs), filed suit in federal district
court against Eric Holder, Jr., (defendant) in his
official capacity as Attorney General of the United
States. Plaintiffs claimed that the Act violated the
Equal Protection Clause of the U.S. Constitution
because the Act prohibited compensation for
donating bone marrow but did not prohibit
compensation for donating blood, sperm, or eggs.
According to plaintiffs, bone-marrow collection
through apheresis could be accomplished quickly
and without removing marrow, and the donor's body
would quickly regenerate the donated stem cells.
Thus, plaintiffs claimed the distinction between
bone-marrow donation and the other types of
compensable donation had no rational basis and was
an equal-protection violation.
c. Reasoning:
1. The inclusion of bone marrow in the definition
of a “human organ” under the Act does not violate the
Equal Protection Clause. The Act makes it a felony to
“knowingly acquire, receive, or otherwise
transfer any human organ for valuable
consideration for use in human
transplantation” and defines “human organ” to
include bone marrow. Congress chose to make
a distinction between body material that is
compensable, e.g., blood, sperm, and eggs, and
material that is not, e.g., bone marrow.
Congress believed that compensating
individuals for bone-marrow donations might
lead to coercive activity on behalf of those
seeking donations on one hand, and the
potential for donors to lie about their medical
histories in order to be compensated for bonemarrow donations on the other. Accordingly,
there is a rational basis for prohibiting
compensation for bone-marrow donation.
2. The Act does not ban compensating individuals
who donate bone marrow through peripheral blood stem cell apheresis.
This method of bone-marrow donation is not a donation of a human
organ or any subpart
thereof. The Act does not prohibit or even
mention compensation of blood donors.
Accordingly, compensation for blood donations
has remained prevalent—the government
concedes that the Act does not ban this
practice. However, the government is incorrect
that the stem cells extracted from donors’
veins during peripheral blood stem cell
apheresis qualify as “subparts” of bone marrow
under the Act. If everything that came from
bone marrow was considered a subpart of bone
marrow, then the Act would also prohibit
compensation for blood donors because blood is
manufactured in bone marrow. The stem cells
used are contained in the blood, along with
white and red blood cells and other materials.
Although this blood comes from bone marrow
initially, it does not qualify as a subpart of
bone marrow under the Act. Consequently,
even though peripheral blood stem cell
apheresis is a method of transplanting bone
marrow, the method is not a transfer of a
human organ or subpart thereof as defined in
the Act. Thus, the Act does not ban
compensation for bone-marrow donors who
utilize the peripheral blood stem cell apheresis
process.
V. Concurrent Ownership—1) Joint Tenancy; 2) Tenancy by the
Entirety; 3) Tenancy in Common
Ouster = an illegitimate eviction of a co-owner
 Joint Tenancy: Two or more own Blackacre with the
right of survivorship.
 Right of Survivorship = When one joint
tenant dies, his share goes automatically
to the surviving joint tenants.
 Alienable
 Not divisible or descendible (b/c of right of
survivorship)
 To create: Need four unities: Time, Title,
Interests, Possession
 Must take tenancy at the same time
 Same Title: Same legal instrument
 Interests: Identical Shares
 Possession: rights to possess the whole
 Grantor must clearly state the right of
survivorship
 Disfavored b/c joint tenants get to avoid
probate.
 The Need for the Straw—If wanting to make a
joint tenancy and already own the land in
entirety, have to convey land to a strawman
first to be then conveyed to joint tenants.
**More progressive jurisdictions have gotten
rid of the need for the straw and allow an
individual to convey to themselves and other
future joint tenants.
 To Sever:
 Sale: A joint tenant can sell or transfer
their interest during lifetime. (Even
secretly without joint tenant's knowledge
and consent).
 One sale of interest severs the joint
tenancy b/c it disrupts the four
unities. (The new buyer would be a
tenant in common.)
 Result=remaining tenants hold
joint tenancy, but the extra
individual is a TIC.
 Partition (The Break-Up Plan)
 Partition by Voluntary Agreement:
Permissible and desirable.
o Parties are free to work out
an agreement privately to end
the joint tenancy.
 Litigation Options
o Partition in Kind: a court
action for physical division of
Blackacre (if in the best
interests of all).
 Works better when
Blackacre is sprawling
o Forced Sale: Sale proceeds
divided proportionately (if in
the best interests of all).
 Works best when
Blackacre is a single
building.
 Tenancy by the Entirety: between married partners
with the right of survivorship
 Can only exist between married partners
 Share the right of survivorship
 "Can't touch this."
 Creditors of only one spouse can't reach
this tenancy.
 Neither tenant, acting alone can defeat
the right of survivorship by unilateral
transfer to a third party.
 Can only be terminated through divorce
or death.
 Tenancy in Common: Two or More Owned with no
right of survivorship.
 Default Co-tenancy—The presumption favors
this form of joint ownership. Always subject to
probate.
 Each tenant in common owns an individual
part, and each has the right to possess the
whole.
 Each interest is divisible, descendible, and
alienable. (No survivorship rights).
 Destruction: Subdivision, reunification of title
in single owner, partition

Rules of Co-Ownership (all forms)
1. Possession: Regardless of the size of the
contribution in shares, each co-owner has the
right to use and enjoy the whole.
2. Rent from a Co-Tenant in Exclusive
Possession: Absent ouster, a co-tenant in
exclusive possession is not liable to the other
for rent.
3. A co-tenant who leases all or part of the
premises to a third party must account to his coowners, giving their fair share of the rent income.
4. Adverse Possession—Absent ouster, a cotenant in exclusive possession, cannot acquire
title to the exclusion of the others. (No
hostility)
5. A repairing co-tenant enjoys a right to
contribution for reasonable and necessary
repairs. (Must have told the others of the need
for the repairs).
6. Improvements: There is no right to
contribution for so-called "improvements."
during the life of the co-tenancy.
**However at partition, improver receives a
credit for any increase in value their unilateral
improvements brought to the property. They
also bear full liability for any decrease in value
they caused.
7. Waste—A co-tenant must not commit waste.
(No willful destruction, no neglect, and no
changes that enhance value without the
consent of others).
**A co-owner does not have to wait until
partition to bring a cause of action for waste by
co-tenant.
8. Any joint tenant or tenant in common
always has the right to bring an action for
partition.
A. Cotenants
1. Ark Land Company v. Harper--The economic value
of property is not a decisive factor in determining whether to partition
in kind or by sale.
a. Issue--^^ In question form.
b. Factual Background: Defendant purchased
land from several members of the Caudill family. They had exclusively
owned the land for nearly 100 years. They hoped to purchase the
remaining tracts of land, but
family refused. Defendant filed a suit to
partition and sell the property. The family sought partition in kind.
During proceedings, the family presented expert testimony asserting
that the land could be partitioned
in kind, but Ark Land presented testimony
asserting that partition in kind would increase mining costs by several
million dollars.
c. Reasoning: A partition by sale is undesirable
because, if one party opposes the sale, the receipt of cash proceeds is not
always fair compensation for the loss of property. For this reason, the
law of all jurisdictions
reflects a presumption towards partition in
kind, only resorting to partition by sale where
partition in kind is inconvenient. Previously,
this court has ordered partition by sale only
where: (1) partition in kind is not convenient;
(2) the sale will result in the promotion of at
least one of the parties’ interests; and (3) the
sale will not prejudice the interests of the
other parties. Economic cost is relevant in
determining whether to partition in kind or by
sale. It is not, however, the determinative
factor. Other relevant factors include
longstanding family ownership, as well as
sentimental or emotional interests. Here, the
Caudill family owned the property at issue for
over 100 years. They were uninterested in the
monetary value of the land and sought only to
maintain family ownership of the property.
This non-economic interest in the land would
be prejudiced if the land is partitioned by sale.
On the other hand, partition in kind would add
an additional several million dollars in costs to
Ark Land’s mining plans. The circuit court
relied only on this fact to rule in favor of a
partition by sale. But because economic
hardship is not the sole factor to consider, the
circuit court erred in its ruling. While this
court recognizes the resulting economic burden
on Ark Land, it does not justify the sale of the
Caudills’ ancestral family home. Therefore, the
judgment of the circuit court is reversed and
the case is remanded with instructions to order
partition in kind.
B. Marriage
1. Sawada v. Endo--The interest of a husband or wife in
a tenancy by the entirety is not subject to the claims of his or her
individual creditors during the joint lives of the spouses.
a. Issue: ^^ in question form.
b. Factual Background: Sawadas were injured in
a car accident with defendant. When the accident occurred, Endo was
the owner of land as a tenant by the entirety with his wife. Before the
trial on the accident was
held, the Endos deeded their land to their
sons. Subsequently, the Sawadas were each
awarded a monetary judgment against Endo
for his role in the accident. In trying to obtain
satisfaction from the judgment, the Sawadas
brought suit seeking to set aside the Endos’
transfer of land to their sons.
c. Reasoning: The interest of one spouse in a
tenancy by the entirety is not subject to the claims of that spouse’s
individual creditors. A tenancy by the entirety is based on the unity of
the married couple and their
ownership in property is likewise united as
one. As a result, creditors of only one of the
two married individuals may not reach marital
property that is a tenancy by the entirety.
Thus, in this case, the Endos’ transfer of land
is not fraudulent and is valid. In fact, even if
the Endos had not transferred the land, the
Sawadas would not have been able to stake a
claim to the land because their claims were to
Kokichi Endo only, and not his wife.
2. O'Brien v. O'Brien--In making an equitable
distribution of marital property, the court considers any direct or
indirect contribution to the acquisition of the property.
a. Issue: Is a medical license acquired by one
spouse during marriage considered marital property subject to
equitable distribution?
b. Factual Background--Mr. and Mrs. O’Brien got
married and then Mr. O’Brien (plaintiff) enrolled in medical school. To
pay for their living expenses while Mr. O’Brien was in school, Mrs.
O’Brien (defendant) put
her education on hold and got a job. She
contributed all of her earnings to their living
expenses in addition to maintaining the
household. After Mr. O’Brien received his
medical license he filed for divorce. Together,
the O’Briens’ only asset of any value was Mr.
O’Brien’s license. In the divorce proceeding,
the trial court awarded Mrs. O’Brien part of
the estimated value of the medical license. Mr.
O’Brien appealed.
c. Reasoning: A medical license is considered
marital property to the extent that it was acquired during the marriage.
Marital property is not property as traditionally understood. It is a
creature of statute and may
encompass things that would ordinarily not be
considered property. In determining and
making a distribution of marital property, a
court considers any direct or indirect
contribution made to the acquisition of
something of value during the marriage,
including professional interests. In this case,
the license is certainly a professional interest
acquired during the marriage that has
substantial value. Mrs. O’Brien put her career
on hold to assist Mr. O’Brien in acquiring his
medical license. Mr. O’Brien was in school for
almost their entire marriage and during that
time, Mrs. O’Brien substantially contributed to
the couple’s living expenses, thus affording Mr.
O’Brien the opportunity to attend school and
focus on his studies. As a result, Mrs. O’Brien
contributed substantially to the acquisition of
the medical license and should be compensated
accordingly. Therefore, Mr. O’Brien’s medical
license is considered marital property, of which
Mrs. O’Brien is entitled to a part.
C. Nuisance
1. Private Nuisance--If the land is invaded by
intangibles (e.g., odors or noises) that substantially and unreasonably
interfere with a private individual’s use or enjoyment of her property,
the possessor may bring an
action for private nuisance.
a. Elements:
i. Intentional
ii. Non-trespassory
iii. Unreasonable
 Character & Extent of Harm to
Plaintiff Factors
o impairment of plaintiff's use,
enjoyment, safety
o cost to plaintiff of defendant's
use
o social value of plaintiff's use
o suitability of plaintiff's use to the
locality now or in the future
o the burden on plaintiff of
avoiding harm
 Utility of Defendant's Conduct Factors
o defendant's social value (need
for/consumption of its products,
job provision, tax revenue)
o availability of alternative locales
for defendant or others like it
o the suitability of defendants use
to the locality now or in the
future
o burden on defendant of avoiding
the harm to plaintiff
 Fault: Disfavored Conduct; First in
time (“coming to the nuisance”) is one
factor to consider in favor or either
party, as measured by which party’s
land use was established first, or by
which party acquired its title first
iv. Substantial Interference
 offensive or inconvenient to the
average person or ordinary use (not
the eggshell plaintiff or abnormally
sensitive use)
 "Law does not concern itself with
trifles."
v. Use & Enjoyment of Land
2. Public Nuisance--Public nuisance is an invasion by
intangibles that unreasonably interfere with the health, safety, or
property rights of the public—i.e., a broad segment of the community,
rather than one or a few
individuals.
3. Dobbs v. Wiggins
4. Boomer
5. Johnson v. Paynesville
6. Fountainebleu v. Eden Roc
7. Prah v. Maretti
D. Landlord & Tenant (Not on Final)
E. Protections for Tenants
F. Fair Housing
VI. Consecutive Ownership
Estate = a property interest in land defined by a period of time
Present Interest = possessory or present estate = right to current
possession
Future Interest = interest in which possession is postponed
A. Estates (Present Possessory Estates)
 Reversion: arises in a grantor who transfers an
estate of lesser duration than they started
with other than a defeasible fee.
 Remainder: A future interest created in a
grantee that is capable of becoming possessory
on the natural conclusion of the present estate.
 Remainder Man—Always Waiting:
Sociable/Patient (tag along to accompany
a present possessory estate of fixed
duration);
 Never follow defeasible fees. (B/c must
have a known fixed duration)
1. Fee Simple Absolute—Most Cases
a. Right to ownership now and indefinitely (until
conveyance)
b. "To 'A'" (Traditionally "To 'A'" and their heirs."
**Remember, a living person only has prospective heirs. There is no
future interest to accompany the Fee Simple Absolute!
c. Inheritable and freely alienable (transferable);
freely devisable (can be left to someone through a will); freely
descendible (to its holders heirs)
d. Absolute ownership of potentially infinite
duration.
2. Defeasible Fees—Fee Simples with a Catch (All are
freely alienable)
**Words of Mere Hope, Desire, or Intention are
inadequate to encumber an estate as a defeasible fee. (B/c courts try to
avoid imposing conditions on land usage.); Stating that there is an
expectation is not sufficient to be
binding.
**Absolute restraints on alienation are unenforceable if
not linked to a reasonable time limited purpose. (∴ "To A as long as she
never attempts to sell," is not enforceable)
In such situations, the condition will be voided,
leaving a fee simple absolute.
 A restraint on alienation linked to a
reasonable time limited purpose is honorable.
 (Must be reasonable in duration &
linked to a demonstrably plausible
context).
**Defeasance = loss of ownership
**Subject to termination if named event occurs
a. Fee Simple Determinable: "To A… so long as
they remain a lawyer."
i. Clear, durational language.
ii. Ends automatically upon the
occurrence of a named event—a certain event occurs or fails to
occur.
iii. Future Interest = Possibility of Reverter
(Grantor automatically takes the property back if a stated event
occurs.)
**FSDPOR (Fee Simple Determinable
always walks hand-in-hand with Possibility of Reverter) OR (Frank
Sinatra Didn't Prefer Orville Redenbacher.)
b. Fee Simple Subject to a Condition Subsequent:
"O grants Blackacre to A for use by the Church, but if it is not used for
church purposes, then O has the right to reenter and take the
premises."
**Fee simple estate that may be terminated at
the grantor's election (not automatic) when a certain condition occurs or
fails to occur."
i. Clear, durational language
ii. A clear statement of the right to re-entry
iii. Magic words of conveyance introduce a
condition that may divest the grantee of the estate: "provided that,"
"but if," "on condition that," "if,"… **Look for language of an indefinite
grant, followed by a
condition.
iv. Future Interest = Right of entry (AKA
Power of Termination) – Elective by grantor
v. Transfer upon happening of stated
condition is not automatic (Watch out for
latches (unreasonable delay)).
c. Fee Simple Subject to Executory Limitation:
"To A, but if X event occurs, then to B."
**Fee simple estate where the right to repossess
the estate upon happening of the stated condition given to a third party
(instead of the grantor)
i. A has a fee simple subject to executory
limitation. B has a future interest = a future executory interest
ii. Same language as fee simple
determinable or a fee simple subject to a condition subsequent, but it
provides for a future interest in a third party.
iii. Automatic forfeiture (to third party)
3. Fee Tail—More a historical relic than a
contemporary reality.
i. Language: "To 'A' and the heirs of his
body…"
ii. Would pass directly to the grantee's
lineal blood descendants no matter what.
**Even if the grantee had left a will to the
contrary
iii. An attempted creation of a Fee Tail
creates instead a Fee Simple Absolute.
v. When it was valid, it held one of two
types of future interests:
*If held by O, by grantor, future
interest = reversion.
*If held by a third party, someone
other than the grantor = remainder.
4. Life Estate—Must be measured in explicit lifetime
terms & never in terms of years (The romantic estate)
i. Alienable, but its length is still measured
by the named holder of the life estate (life estate per autre vie)
ii. Words of creation:
 "O grants A Blackacre for life."—
reversion
 "O grants Blackacre to A for life,
then to B."—remainder
iii. If "To A for life," A = life tenant.
iv. Transferable by the life tenant during
their life and only for the term lasting so long as
the original life tenant lives
v. Rights & Duties are rooted in Waste
Doctrine: 1) the life tenant is entitled to all
reasonable uses and profits from the land, and 2)
A life tenant must not commit waste. (Must not
do anything to injure the
future interest holders.)
 Three types of waste
o Voluntary or Affirmative
Waste = Willful destruction
o Permissive Waste = Neglect
o Ameliorative Waste = Must
not engage in acts that
enhance the property's value
unless all future interest
holders are known and
consent.
vi. Future Interest
 If held by grantor = reversion
 If held by third party = remainder
5. Future Interests
a. Vested Remainder—When created in a
known taker who is not subject to a condition precedent (any
prerequisite for Remainder Man to accomplish)
i. Indefeasibly Vested Remainder—Best
future interest a taker could hope for. Remainder man is
known with no strings attached to his taking.
**To A for life, then to B—B is known (not
waiting for it to be born) and is not subject to any conditions
(strings)
ii. Vested Remainder Subject to
Complete Defeasance (Forfeiture)—Not subject to a
condition precedent, but if the subsequent condition arises,
loses the interest.
**A condition is a condition subsequent if it
appears after the remainder man is introduced.
iii. Vested Remainder Subject to
Open—Vested in a group or category of takers, at least one
of whom is qualified to take.
**To A for life, then to A's children. If A has
children C and D, they are vested (b/c already living); still
open bc the class of children is still open b/c A may have
more kids.
b. Contingent Remainder—is either given to
an unascertained person or is subject to a condition
precedent. (Something that Remainder Man still has to do
and is up in the air.)
**To A for life, then to A's first child. The yet
unborn child has a contingent remainder. (subject to an
unmet condition or prerequisite).
c. Executory Interest—A Future Interest
created in a grantee that takes effect by cutting short the
interest of another. (Typically follows a defeasible fee).
**Usually from the previous estate holder's
forfeiture
i. Springing—Cuts short
(divests) O, the grantor.
 Ex: Where O is currently
unmarried, O conveys
Blackacre to A when he
marries.
 A has a springing
executory interest.
 O has a fee simple
subject to A's
springing
executory interest.
ii. Shifting—Cuts short another
transferee. (Someone other than O, the grantor).
 Always follows a
defeasible fee
 Ex: O conveys to A, But
if A ever uses the
premises for nonresidential purposes,
then to B. (Not a
remainder b/c not
definite).
 Always looming
 A has a fee simple
subject to B's
shifting executory
interest.
Estates in Real Property and Future Interests
Freehold Estates
Future Interest
Grantor (O)
Third Party (A
taker other
than O)
Fee Simple
"to A…"
None
None
Absolute
"to A and their
heirs…."
Fee Simple
Determinable:
Fee Simple
Subject to an
Executory
Limitation
Fee Simple
Subject to a
Condition
"to A so long
as…"
"while…"
"during…"
"unless…"
"until…"
"to A provided
that…"
"on condition…"
Possibility of
Reverter—
Automatic
Executory
Interest
Right of Entry
(Power of
Termination)—
Executory
Interest
Subsequent:
Fee Simple
Subject to an
Executory
Limitation
Fee Tail
"but if…"
"provided,
however…"
"to A and the
heirs of his
body…"
Life Estate
"to A for life"
Non-Freehold Estate
Term of years "to A for…"
The prerogative
of the grantor
to terminate the
estate (or not)
in light of the
condition
breach
Reversion:
Remainder
Leftover (arises
in a grantor
who transfers
an estate of
lesser duration
than they
started with
other than a
defeasible fee)
Reversion
Remainder
Future Interest
Reversion
Remainder
B. Rule Against Perpetuities—No interest is good unless it
must vest, if at all, not later than twenty-one years after some life
being at the creation of the interest.
**Compromise Position: History was a divide between
young & old in feudal England.
1. Young were tired of the elders imposing conditions
in the transfers of land to them.
2. Elders (the more privileged land holders) hang on to
the power (even after death) with all these conditions.
3. RAP: Allows land holders to transfer land with
certain conditions, but only for so long.
 Must be able to know the answer to: Who
gets to take the land after 21 years after
the death of a relevant life in being?
a. Determine which future interest you have. The
RAP potentially applies only to contingent
remainders, executory interests, and vested
remainders subject to open.
**Never applies to indefeasibly vested
remainders or vested remainders subject to complete
defeasance, or to any future interests in O, the grantor
(Potential Reverter, Right of Entry, Reversion)
b. Ask: What has to happen for the future
interest holder to take? (For the interest to fully vest).
**Fully Vest = All future interest holders are
ascertained and any contingencies are removed.
c. Find a Measuring Life (a life in being at the
creation of the interest)
i. Creation of the Interest
 By conveyance—moment of
conveyance
 By will—moment testator dies
 By trust—if irrevocable, moment of
signature; if revocable, when it
became irrevocable
ii. Life in being:
 A human being
 Alive or in utero at the creation of
the interest (see above) who may
have something to do with it
vesting

d. Will we know for sure within 21 years of the
death of all measuring lives if there is/is not an interest
holder to take?
e. If violates, remove the conveyance that violates
the RAP. (Strike out the offending language).
f. Reformation of the Rule Against Perpetuities
i. Reformation or Cy Pres—Permits a
court to modify a trust so as to carry out the testator's intent within the
perpetuities period.
 Cy Pres = As near as possible.
ii. The Uniform Statutory Rule Against
Perpetuities—Wait & See Period of 90 years --> Reformation after 90
years. (in effect of approx. half the states)
 The suspect future interest must be
certain to vest/not to vest within 90
years of its creation.
iii. Wait & See
 The validity of any suspect future
interest is determined on the basis
of the facts as they occurred after
the death of the measuring life.
 After death of the measuring life,
assess the interests as they actually
manifested.
iii. Abolish entirely.
4. Example: "O to A for life, then to A's children," where
A is alive and she has no children.
 Which type of future interest? Contingent
Remainder ∴ potentially subject to RAP
 What must happen for the future interest holder
to take?
o A has to die, leaving behind a child.
 Find a measuring life.
o A = Life is fully relevant b/c she must die,
and must have had a child.
 Will we know for sure within 21 years of A's
death whether there is an interest holder to take
the interest?
o Here, yes. A must have her children before
she dies, and it will ∴ be determined at the
time of A's death, and ∴ absolutely 21 years
later.
5. Two Brightline Rules
a. An executory interest with no limit on the time
within which it must vest violates the Rule Against
Perpetuities. (Too speculative)
i. O conveys to A, so long as alcohol is never
served on site, and if alcohol is ever served, to B.
1. A has a defeasible fee: a fee simple
subject to B's shifting executory interest.
2. Alcohol must be served on site.
3. A's life can be the measuring life. A
has the power to serve alcohol or not, while
B does not.
4. We will not know for sure, b/c B or
any of their heirs may be the one to serve
alcohol.
**Upon removing the violating conveyance,
A has a Fee Simple with the Possibility of Reverter. But this is okay b/c
it is in response to O the grantor.
b. A gift to an open class, conditioned on the
members surviving to an age beyond 21 violates the
RAP.
i. From the knowledge that "Bad as to one,
bad as to all," or that the condition that must occur for
each member of the class is certain to occur within the
perpetuities period. If it is possible with respect to any
member of the class that the condition
occurs beyond the period of perpetuities, then the entire
class is poisoned.
1. To A for life. Then to A's children,
those of which who live to the age of 30. (where A is
alive and A already has two children, C and D. C is 35
and D is 40.)
**The class is still open.
2. B/c A is still alive, she could have
another child. She could die in labor. As to that yet
unborn child, we are uncertain if their interest will vest
within 21 years of A's death, the entire class violates
RAP.
Result= C and D's vested
remainders subject to open would be avoided by the
RAP. Once this conveyance is struck, all that is left is
"To A for life."
C. Dead Hand Control—The attempt to control property
after owner's death.
1. Evans v. Abney--The interpretation of wills, and
application of the cy pres doctrine, is governed by state law.
a. Issue: ^^ in question form.
b. Factual Background: Senator Bacon willed a
park to the city of Macon, GA with the restriction that the park was for
whites only. However, Bacon’s intentions could not be fulfilled as a
result of the United States
Supreme Court’s earlier decision on this
matter in Evans v. Newton, 382 U.S. 296
(1966), which held that the continued
operation of the park must be without racial
discrimination. Accordingly, the Supreme
Court of Georgia held that the trust failed
because Bacon’s intended restrictions were
illegal, and that the park and remaining trust
assets reverted under Georgia law to Bacon’s
heirs. The United States Supreme Court
granted certiorari.
c. Reasoning: The Court today upholds the
established role of the states in determining application of the cy pres
doctrine to trusts and wills. In Evans v. Newton, this Court held that
the continued operation of the
cpark must be without racial discrimination.
Evans v. Newton, however, did not deal with
the issue of whether or not the park could
continue to operate as a park. Further, this
case is distinguishable from Shelley v.
Kraemer, 334 U.S. 1 (1948), where this Court
held it unconstitutional for a state court to
enforce a private scheme of racial
discrimination. Here, the Georgia court
eliminated all discrimination in the park by
eliminating the park itself. Unfortunately, the
loss of the park is “part of the price we pay” for
freedom of testation. This Court’s
responsibility “however, is to construe and
enforce the Constitution and laws of the land
as they are,” rather than legislate social policy
based on each justice’s personal inclinations.
The declaration that the trust be terminated
does not violate the Constitution. The Georgia
court effectuated the terms of the will as near
as possible to its explicit terms, which the
court interpreted to be a preference for
termination of the park rather than its
integration.
2. Estate of Guidotti--The testator’s intent is the
paramount rule in determining whether a trust condition imposing
restraints upon marriage is void.
a. Factual Background--Earl Guidotti died and
his will created a testamentary trust. The trust gave his wife, Darlene,
net income payments for life unless and until she remarried. Darlene
(plaintiff) brought suit,
seeking to invalidate the remarriage condition
in the trust. At trial, Earl’s lawyer testified
that Earl was extremely jealous and that his
intent in the remarriage clause was to prevent
Darlene from remarrying. The probate court
found that the clause was valid. The probate
court found that the clause was not a restraint
on marriage, but rather a means of providing
for Darlene until she remarried at which time
her new husband could provide for her.
b. Reasoning--Conditions imposing restraints on
marriage are void. However, a condition is not void if the intent of the
condition was not to restrain marriage, but to give the use of something
until marriage. In
determining whether a clause in a
testamentary trust is a restraint on marriage
or an intention to give use until marriage,
courts must look to the intent of the testator.
In this case, Earl’s intention was clearly to
restrain Darlene from remarrying. Earl’s
lawyer testified that Earl’s intent in including
the remarriage condition in the trust was to
attempt to prevent her from remarrying. As a
result, the court determines that Earl’s intent
was to place a restraint on marriage. The
remarriage condition is therefore void.
D. Real Estate Transactions
1. Steps in Buying a Home:
a. Buyer investigates affordability, pre-qualifies
for a loan, consults with a real estate broker
b. Buyer makes an offer. Seller makes a counteroffer. Parties negotiate terms of a written purchase and sale agreement
that preserves contingencies for the parties to take certain steps during
the "escrow period."
i. Buyer will usually
 Conduct a title search
 Inspect the property with a contractor
to discover any undisclosed defects
 Obtain her financing
ii. If Buyer discovers something wrong with
the property, and they have covered their bases
with a property contingency, they can walk away
or renegotiate the purchase price.
c. Parties sit down together (or with an escrow
agent to transfer the deed)
i. The lender of the buyer's mortgage funds
the loan—money goes to seller (most of it actually goes to seller's bank
to pay off their mortgage loan)
ii. Title transfers to buyer
iii. New title and the buyer's mortgage are
recorded in the county clerk's office.
2. Duty to Disclose Defects
a. Caveat Emptor (common law)—No duty to
disclose (dwindling minority view)
b. Narrow latent defects rule--Seller must
disclose latent, material defects that she caused; most physical defects
are not latent (NY, Stambovsky)
c. Broad latent defects rule--Seller must disclose
any latent, material defects (FL, Johnson, majority rule) that she knows
about
3. Types of Deeds
a. General warranty deed: covenants against all
defects in title
b. Specialty warranty deed: covenants against
defects in title cause by the grantor’s own acts and not
those of prior owners.
c. Quitclaim deed: contains no warranty of title at
all. It just gives whatever interests the person has in
the property (possibly nothing)!
4. Recording Systems
a. Race Statute: First person to record wins.
b. Notice Statute: Last person to purchase
without notice of prior purchasers wins, regardless of whether they
record first.
c. Race-Notice Statute: Last person to purchase
wins IF they record first AND they had no notice of prior purchasers.
Otherwise, they lose.
d. Example problems on WISE slides.
5. Stambovsky v. Ackley
6. Johnson v. Davis
E. Chain of Title--The fact that a deed has been recorded
does not always mean that a purchaser will be charged with notice
of it. A subsequent purchaser will be held to have record notice
only if the deed in question is
recorded “in the chain of title,” which means that it is
recorded in a fashion that a searcher could reasonably
find it. There are several situations in which a deed
might be recorded, but very difficult or impossible for a
search to locate.
1. Wild Deeds--A “wild deed” is a recorded deed that is
not connected to the chain of title. It does not give constructive notice
because the subsequent BFP cannot feasibly find it.
2. Sabo v. Horvath--A purchaser has notice only of
recorded deeds within his chain of title, so the purchaser prevails as
against any deed that was previously recorded outside his chain of title
of which he did not have
knowledge.
a. Issue: Does a deed recorded outside the
purchaser’s chain of title give constructive notice of the
recording to a subsequent purchaser?
b. Factual Background: Lowery occupied a piece
of land and applied for a land patent from the U.S.
government. Lowery then conveyed the land to the Horvaths
in a quitclaim deed, which they recorded.
Subsequently, Lowery was issued the federal
land patent, but the Horvaths did not rerecord
the deed. After the land patent was issued,
Lowery issued another quitclaim deed to the
property to the Sabos. The Sabos recorded the
deed.
c. Reasoning: A deed recorded outside the
purchaser’s chain of title does not give constructive notice of the
recording to a subsequent purchaser. Thus the subsequent purchaser
with no knowledge of the prior deed
prevails if his deed is recorded properly. At the
time the Horvaths were granted their deed,
title lay in the U.S. government. Thus, their
quitclaim deed granted by Lowery transferred
only his interests at the time and not actual
title. On the contrary, the Sabos were granted
their deed after Lowery obtained the federal
land patent. Thus, the Horvath transfer was
not in the Sabos’ chain of title, only the federal
land patent granted to Lowery was. As a
result, the Sabos had no knowledge of the
transfer to the Horvaths. Therefore, because
the Sabos had no actual knowledge of the
transfer to the Horvaths, and no constructive
knowledge because the Horvaths’ recordation
was not in the chain of title, the Sabos’
recorded interest prevails.
VII. Private Regulation: Servitudes (Non-possessory Interests in Land)
A. Easements—the grant of a non-possessory interest that
entitles its holder to some limited use or enjoyment of another's
land. (servient tenement)
1. Common Examples: The right to lay utility lines on
another's land; a farmer's right to water cows on another's property
2. Can be affirmative or negative (most are affirmative)
a. Affirmative: The right to do something on
another's land
b. Negative: Entitles its holder to compel the
servient owner to refrain from doing something that but for the
negative easement would be permissible.
i. Far more narrow. Only allowed in four
areas
 Light—Ex.: Can compel neighbor to
refrain from building in such a way
that would inhibit the sunlight on
your property.
 Air—Ex: … to refrain from building
anything atop her parcel that would
interrupt my parcel's access to
unobstructed airflow.
 Support—Ex: … to refrain from
excavating or digging on his parcel in
such a way that would detriment my
parcel's subjacent support.
 Stream Water from an Artificial
Flow—Ex: . . . to refrain from doing
anything on her parcel that would
impede my parcel's access to a flow of
stream water coming from an artificial
source.
 (In minority of states) for scenic
view—Ex: … to refrain from building
atop her parcel in such a way that
would impede my access to an
unfettered scenic view.
ii. Can only be stated explicitly. There is no
implicit right to a negative easement.
3. Easement Appurtenant—Benefits the holder of the
easement in use of his property; it takes two parcels.
a. Dominant parcel has the benefit, which runs to
grantees
b. Servient parcel has the burden, which runs to
grantees with notice
4. Easement in Gross—Confers upon its holder only a
personal or financial gain, not linked to the use or enjoyment of
easement holder's own land. Involves one tract of land.
a. Examples: Right to place a billboard on
another's lot; right to swim in another's pond; right to lay power lines
on another's land.
5. Creation of Easements
a. Express grant or reservation (S.O.F. applies)—
Deed of Easement
i. An oral grant creates a license, which is
not an interest in land.
b. Implication—by operation of law
i. By use existing before a tract was divided
ii. By necessity for a landlocked parcel.
c. Four ways-- PING (Prescription, Implication,
Necessity, Grant)
i. Grant—An easement to endure for more
than one year must be in a writing (most) that comports with all the
formal elements of the deed. (Deed of Easement)
ii. Implication—Easement Implied from
prior use if that use was apparent and if the easement's continuation is
reasonably necessary to the dominant land's use and enjoyment.
iii. Necessity—Whenever the grantor
conveys part of his land with no way out other than through his
remaining land.
iv. By prescription—by analogy to the
elements of adverse position. (Continuous use for the given statutory
period; Open and notorious use; Actual entry that need not be exclusive;
Hostile Use)
 Ex: Everyday I cut across your front
lawn to more efficiently get to my
parcel. I make a continuous habit of
that use for the requisite statutory
period. My usage is visible. My entry
is actual (does not have to be
exclusive, b/c because it is a right of
use, the owner may still be using the
land). It is hostile—you never gave me
permission.
o Over time, trespass may be
transformed into a rightful
easement.
6. Termination of easements--can end by stated
condition, unity of ownership between easement and servient estate,
abandonment, estoppel, prescription, necessity, release, or
condemnation
7. Easement & Transferability
a. Easement Appurtenant passes automatically
with the dominant tenement. (regardless of whether it is mentioned in
any document of transfer) and the burden of an easement appurtenant
passes with the servient
tenement. (unless a bona fide purchaser
without notice).
b. Easements in Gross are not transferable unless
they are for commercial purposes.
8. The scope of an easement is determined by the
term(s) that created it. Unilateral expansion is not allowed.
9. Cases
a. Green v. Lupo--There is a presumption that an
easement is appurtenant to a parcel of land and not an easement in
gross.
i. Factual Background--Don and Florence
Green (plaintiffs) owned a parcel of land. They sold a portion of the land
to Lupo (defendant). Lupo requested a deed release for a part of the
property, and the Greens
agreed in exchange for the promise of an
easement over part of Lupo's tract. The
terms of the easement were contained in a
written agreement, which provided,
among other things, that the easement
was promised to "Don Green and Florence
B. Green," and that the easement was "for
ingress and egress for road and utilities
purpose." The easement was to allow the
Greens to have access to the land retained
by the Greens to build and live in a cabin.
The Greens used some of their remaining
land for mobile homes, and some of the
mobile-home residents used the easement
as a practice runway for their
motorcycles. This caused tension between
Lupo and the Greens, and Lupo refused to
formally grant the easement. Lupo also
blocked the easement to restrict access
from the Greens' property. The Greens
brought suit to specifically enforce the
easement agreement. The lower court
found that the easement was personal to
the Greens and could only be used by
them for ingress and egress for their own
cabin. The court also prohibited the use of
motorcycles on the easement.
ii. Reasoning--In Washington, there is a
strong presumption that an easement is appurtenant to a parcel of
land, as opposed to an easement in gross. Under this presumption, an
easement will not be
considered an easement in gross if there
is anything in the conveyance or
surrounding circumstances suggesting
that the easement was intended to be
appurtenant to land kept by the grantor.
An easement granted for purposes such
as roads, utilities, ingress, and egress is
an easement appurtenant because it
benefits the adjacent parcel. An
easement appurtenant becomes part of
the land that it benefits, and it passes
with possession of the dominant parcel
unless it is otherwise limited. By
contrast, an easement that designates a
specific person as the dominant owner is
more likely to be considered a personal
easement, or an easement in gross. If the
conveyance of land is ambiguous, parol
evidence is admissible to help determine
whether the parties intended an express
easement to be appurtenant or in gross.
The court may consider the unique
circumstances of the parties and the
property, as well as the parties’
conduct and admissions, in making
this determination. Here, the
easement was granted specifically to the
Greens for the purpose of "ingress and
egress for road and utilities." This is an
ambiguous conveyance, because it is both
to specific people and for a purpose that
benefits the dominant estate.
Considering all the facts and
circumstances, however, the easement
was an easement appurtenant. It was
granted to give access to the land for
purposes of building and inhabiting
a cabin on the property. This
reference to the land with no language
limiting access to only the Greens, when
combined with the presumption of
appurtenance, weigh in favor of finding
the easement to be appurtenant.
b. Henley v. Cablevision--Easements are
exclusive to the easement holder and therefore devisable if the
easement grantor does not maintain or reserve an interest in exercising
the right granted.
i. Factual Background--Trustees of the
University Park Subdivision (trustees) (plaintiffs) were granted the
right to construct and maintain the equipment necessary to provide
telephone and electric service to
residents of the subdivision. The trustees
conveyed easements in gross to
Southwestern Bell Telephone Company
and Union Electric (utilities) to construct
and maintain poles and wires for
providing the services to residents of the
subdivision. Continental Cablevision
(Cablevision) (defendants) acquired
licenses from the utilities to use their
easements and added wires in order to
transmit television service. The trustees
filed for an injunction seeking to require
Cablevision to remove their wires.
ii. Reasoning: A grantor of an easement for
a particular purpose who does not retain an interest in using the land
for that purpose may not prevent the easement holder from sharing the
easement with others.
On the contrary, the easement holder
may license others to use the easement
as long as their use is consistent with the
use originally granted. In this case, there
is no evidence that the original grantors
or the trustees had any intention to use
the granted portions of the subdivision
for electric or telephone services. As a
result, the trustees must allow the
utilities to share the easement with
others seeking to use the land for those
purposes. Although Cablevision is not
providing telephone or electric services
per se, it is providing television service
via electric impulses. The court finds that
this use is consistent with the use
envisioned by the trustees. Simply
because the trustees did not foresee
television service being available does
not mean that the permitted use of the
easement should be so restrictive as to
exclude it. The intent of the grantors was
the provision electrical and
communication services to the
subdivision. Technological advances
should not be stifled by an
understandably shortsighted grantor,
particularly when the addition of a single
cable to existing poles does not increase
the burden on the servient estate.
Therefore, the injunction is denied and
Cablevision is entitled to use the
easement for the provision of television
services.
c. Granite Properties Limited Partnership v.
Manns--An implied easement may arise from a grantor's continuous
and apparent preexisting use of property conveyed by the grantor, even
if the easement is not
absolutely necessary for the beneficial use and
enjoyment of the property retained by the grantor.
i. Factual Background-- Granite Properties
Limited Partnership (Granite) (plaintiff)
owned a large tract of property that
included a shopping center, an apartment
complex, and each building’s respective
driveway. Granite sold to Larry and Ann
Manns (defendants) a part of the tract
that was in between the apartment
building and the shopping center. The two
driveways were each situated on the land
conveyed to the Mannses, and the
Mannses knew this when they bought the
property. Both driveways were used by
Granite for a number of years before it
conveyed the land to the Mannses. The
shopping center driveway (Driveway A)
led to the back of the shopping center and
was used for deliveries and trash removal.
Granite testified that even though there
was another small driveway that led to
the back of the shopping center from
another side of the property, use of
Driveway A was necessary for the proper
functioning of the shopping center
because there was not enough room in the
other driveway for large delivery trucks to
turn around and exit. The other driveway
in question, the apartment complex
driveway (Driveway E), led to the parking
lot of the apartment complex. Granite
testified that there was no other feasible
place to put the parking lot and that
Driveway E was the only way residents
could access the parking lot. After the
Mannses bought the tract, they told
Granite to stop using the driveways.
Granite brought an action in the Madison
County Circuit Court to enjoin the
Mannses from interfering with Granite’s
use of the driveways.
ii. Reasoning-- An implied easement may
arise from a grantor's continuous and apparent preexisting use of
property conveyed by the grantor, even if the easement is not absolutely
necessary for the beneficial
use and enjoyment of the property
retained by the grantor. A landowner
establishes an easement implied by prior
use if he proves: (1) ownership over both
the dominant and servient parcels and a
subsequent transfer of ownership to the
servient parcel, (2) that, before the
transfer, the use being claimed was
apparent, continuous, and permanent,
and (3) that the easement is necessary
and beneficial to the owner’s use of the
property he kept. These requirements are
in place because proof of prior use is
evidence that the parties intended an
easement even if it was left out of the
deed. The stronger the evidence of the
prior use to show the parties' intent, the
lesser the degree of necessity that will be
required for the court to find an implied
easement. Here, Granite owned the
entire tract of land and subsequently
conveyed the land on which the
driveways are situated to the Mannses.
The Mannses admitted to noticing
Granite’s use of both driveways when
they bought the land, Granite’s use was
continuous for many years before the
conveyance, and Granite’s use is
permanent because the driveways were
covered in gravel. Finally, without use of
Driveway A and Driveway E, the
shopping center and apartment complex
respectively cannot be run properly.
Without Driveway A, deliveries cannot be
made to the various stores in the
shopping center in a reasonable manner.
Similarly, without Driveway E, the
apartment complex could not function
properly because there would be no
access to the existing parking lot, and
there was no room for a suitable
alternative parking lot anywhere else.
Accordingly, Granite has implied
easements over the two driveways.
d. Lobato v. Taylor--A court can imply an
easement created by estoppel when the landowner permitted another
party to use the land under circumstances in which it was reasonably
foreseeable that the user would
substantially change position believing that
the permission would not be revoked, the user
substantially changed position in reasonable
reliance on that belief, and injustice can be
avoided only by establishment of a servitude.
i. Factual Background—
ii. Reasoning
e. Community Feed Store Inc. v. Northeastern
Culvert Corp--Where one claiming a prescriptive easement proves the
general outlines of the area of his continuous, adverse, and notorious
use with reasonable
certainty, that is sufficient to establish the
claim.
i. Factual Background
ii. Reasoning
f. Finn v. Williams-- An easement by necessity
implied with a transfer of land may go unused through subsequent
transfers of the land, but still be exercised at any time by the title
holder.
i. Factual Background
ii. Reasoning
B. Covenants—Written promises to do or refrain from doing
something on land, with a usual remedy of money damages.
1. Restrictive Covenants—a promise to refrain from
doing something related to the land. (Born to make up for the narrow
scope of negative easements.)
2. Affirmative Covenants—a promise to do something
related to land (ex: maintain our common fence.)
3. Differences from Equitable Servitudes: Look for
relief plaintiff is seeking. If they want monetary damages, construe the
promise at law as a covenant.
4. Misc.
 One tract is burdened and one tract is
benefitted.
 Runs with the land at law when it is
capable of binding future owners.
Although contractual, they bind to the
property that is burdened with the
promise.
o It is possible for only one side of
the promise to transfer. Separate
analyses for benefit and burden.
o WITHN
 A Writing—The original
promise had to be in
writing.
 Intent—The original
parties A and B intended
that the benefit would run.
(Courts are generous
interpreting intent here).
 Touch and Concerns—The
promise affects the parties
as landowners. (Must be
relevant to the parties as
landowners).
 Horizontal and Vertical
Privity
 Horizontal refers to
the nexus between A
and B (the originally
covenanting parties).
They must be in
succession of estate
(At the time A made
their promise, A and
B were in a
grantor/grantee
relationship. OR if A
and B shared a
landlord/tenant
relationship OR if A
and B in addition to
sharing the covenants
happened to be each
other's debtor/creditor
in a financial
transaction.)
o HARD to
establish.
o On an exam, it
is typically b/c A
and B were in a
grantor/grantee
relationship
when the
relationship
began (if one
party bought
from the other).
 Vertical requires a
non-hostile nexus
between A and A1;
Only absent if A1
required interest
through adverse
possession.
o Much easier to
establish
 Notice: A1 must have had
notice of the promise when
she took.
C. Equitable Servitudes—Promises regarding land that
equity will enforce against successors. Accompanied by injunctive relief.
1. To create an equitable servitude enforceable against
successors, must meet the following (WITNES):
a. Writing—The original promise was in writing.
b. Intent—The parties intended that the promise
would bind successors.
c. Touch and Concern—The promise affects the
parties as land owners.
d. Notice—The successors of the burdened land
had notice of the promise when they took.
e. ES—Equitable Servitude: Privity is not
required to bind successors.
i. Born to alleviate some of the harsh
necessity for covenants to achieve privity (especially horizontal privity).
2. Implied—Also known as the general or common
scheme doctrine. Always arises in cases of a subdivider.
D. Cases
a. Neponsit v. Emigrant— (1) A covenant
contained in a deed requiring the payment of money “touches and
concerns” the land if it substantially affects the rights of the parties as
landowners. (2) Privity of estate
will exist in substance if not in form between
property owners and an owners’ association when the association is
acting as a medium through which enjoyment of a common right is
preserved.
i. Factual Background
ii. Reasoning—
b. Evans v. Pollock
i. Factual Background—
ii. Reasoning—
c. Narstedt v. Lakeside Condominium Ass'n, Inc.
i. Factual Background-ii. Reasoning—
d. Woodside Village Condos v. Jahren
i. Factual Background—
ii. Reasoning—
e. Shelley v. Kraemer
i. Factual Background
ii. Reasoning
f. El Di v. Town of Bethany Beach
i. Factual Background
ii. Reasoning
E. Also Licenses & Profits (not covered)
VIII. Public Regulation
A. Zoning--The state may enact statutes to reasonably
control the use of land for the protection of the health, safety,
morals, and welfare of its citizens. Zoning is the division of a
jurisdiction into districts in which certain uses
and developments are permitted or prohibited. The zoning
power is based on the state’s police power and is
limited by the Due Process Clause of the Fourteenth
Amendment. Other limitations are imposed by the Equal
Protection Clause of the Fourteenth Amendment and the
“no taking without just compensation” clause of the Fifth
Amendment. (See Multistate Constitutional Law outline.)
Cities and counties can exercise zoning power only if
authorized to do so by state enabling acts. Ordinances
that do not conform to such acts are “ultra vires” (beyond
the authority of the local body) and void.
1. A zoning ordinance is unconstitutional only if "such
provisions are clearly arbitrary and unreasonable, having no
substantial relation to the public health, safety, morals or
general welfare."—Village of Euclid v. Ambler
Realty (1926).
2. NYC Adult Business Zoning
a. After city expressed outrage about adult
materials, city issued a zoning ordinance
requiring any business that for which held 60%
of their stock in adult materials to close or
move.
3. Re-zoning: Changes in zoning laws. Some
jurisdictions only allow it if the area has materially changed since the
last decision.
a. Spot-zoning: when the gov. treats one parcel
differently than others in the same zone
b. Relevant factors may include:
i. Nature of the special zoning
ii. Size of the affected parcel compared to
the overall zone.
iii. Harm to surrounding owners & the
public
4. Non-conforming use: existing use of land not allowed
by the new law
a. In general, gov. may not immediately eliminate
a nonconforming use, but depending on the law, will limit the use, or
terminate it over time.
5. Termination of use:
a. Abandonment: The owner discontinues the use
for a significant time with the intent to give it up, after which the
nonconforming use can't be revived.
b. Destruction: If the use is destroyed by accident,
an act of nature, or some other event. Owner might not be allowed to
resume the use.
c. Amortization: Requires the owner to gradually
phase out the use over a specific, reasonable period of time depending
on:
i. financial impact
ii. Nature of the use
iii. Any threat to the public
6. Vested Rights: Arise if a zoning law takes effect
while an owner is preparing for use that's disallowed by the new law.
**If the owner has made substantial expenditures
in good faith in reliance on the old law, can probably acquire a vested
right to the use.
7. Variances—Permit to deviate from the standard
zoning law
a. Area Variances—Exemption from physical
requirements such as building height
b. Use Variances—Allow what would otherwise
be a nonconforming use (Scrutinized more closely)
**Usually granted to prevent undue hardship to a
property owner. Must also be consistent with public interest.
8. Special Use Variance—allowable use that
nonetheless requires special permission b/c of the potential for unusual
impact. Also called a special exception or a special use permit.
a. Government will impose certain conditions to
prevent or mitigate the impact.
i. Specific objective criteria in forming these
conditions is favored over conditions that are left to discretion of the
zoning authorities.
B. Town of Bellevue v. Parillo's Inc.--A nonconforming use of
premises will be permitted to continue only if it is a continuance of
substantially the same kind of use that existed when the zoning
ordinance was passed.
1. Factual Background: Parrillo’s (defendant) operated
as a restaurant in the Town of Belleville, New Jersey (plaintiff).
Subsequently, Belleville enacted zoning ordinances itemizing
permitted uses for each
zone. In the zone where Parrillo’s was located,
operating a restaurant was not permitted
under the new zoning laws. However, because
Parrillo’s operated as a restaurant prior to the
enactment of the laws, it was permitted to
continue operating as a restaurant because of
its preexisting nonconforming use. However,
some years later, Parrillo’s ceased its primary
operation as a restaurant and began operating as a
discotheque, which was also not permitted under
the new zoning regulations. Parrillo's owners made
significant changes to the premises in converting
the restaurant to a discotheque, including changing
the lighting, adding loud music, and removing
tables. Parrillo’s applied for a discotheque license
but was denied. When Parrillo’s continued to
operate as a discotheque, the town filed charges.
The municipal court convicted Parrillo’s and
assessed a fine.
2. Reasoning: Nonconforming uses of property are
vested property rights. However, nonconforming uses are not without
limits. A nonconforming use of premises will be permitted to continue
only if it is a continuance of
substantially the same kind of use that existed
when the zoning ordinance was enacted. The
question of whether a change in a nonconforming
use is substantial is typically resolved against
allowing the enlargement or change. Here, the
operation of a discotheque is substantially different
from the operation of a restaurant. There were a
number of significant changes to Parrillo’s after its
switch to a discotheque, including a reduction in
tables, a change in lighting, an addition of loud
music, and dancing replacing eating as the primary
activity. It is clear that Parrillo’s abandoned its
operation as a restaurant and began operation as a
discotheque. This is a substantial change that
cannot be upheld as a preexisting nonconforming
use. The use is in violation of the Belleville zoning
law.
C. Limits on Zoning
1. NAACP v. Township of Mount Laurel--A town,
through enactment of land use regulations, must provide the
opportunity for low and moderate families to live in the town and
may not constructively prevent them from
doing so.
a. Factual Background--Under Mount Laurel’s
(defendant) zoning regulations, 29% of land in the
town was zoned exclusively for industry, but only a
tiny fraction of that was actually used for industrial
purposes and
the rest was left undeveloped. In addition, the
areas that were actually zoned for
residential use were under restrictions that
effectively made it so only those with a
higher income could live there. These
ordinances were put in place because of the tax
structure in New Jersey. Because of the town’s
need to cover the high costs of schools, it sought
primarily buildings with high tax rates—
specifically industrial buildings and expensive
homes. As a result of this practice, low and
moderate income families were effectively
prevented from living in the town. The
NAACP of Southern Burlington County (NAACP)
(plaintiff) brought suit claiming that the combined
land use regulations unlawfully exclude low and
moderate income families from the town.
b. Reasoning-- If a town’s system of zoning
regulations effectively prevents low and moderate income families from
residing in the town, the regulations are unlawful. Like any police
power, zoning regulations must
promote the general welfare and it is clear that
the provision of adequate housing for all citizens
is consistent with that general welfare. As a
result, towns may not use zoning regulations to
prevent certain classes of individuals from
acquiring housing in their towns. On the
contrary, towns must enact land use regulations
necessary to provide the opportunity for
appropriate housing for all classes. In the present
case, through Mount Laurel’s excessive and
unnecessary industrial zoning and heightened
cost requirements for residential zoning, the town
has effectively excluded low and moderate income
housing. This system of zoning ordinances is
contrary to the general welfare and thus not in
line with the intended purpose of zoning
authority. Mount Laurel is ordered to amend its
zoning ordinances to ensure that it provides the
opportunity for low and moderate families to live
in the town.
2. Village of Belle Terre v. Boraas--Zoning regulations
may be used to enhance and preserve public welfare.
a. Is a zoning ordinance which prohibits groups of
unrelated persons from sharing quarters an appropriate use of the
government’s police power?
b. Factual Background-- The Dickmans owned a house in
Belle Terre. In or around 1971 to 1972, the Dickmans leased the house out
to six students at a nearby university, none of whom were related by blood,
adoption, or marriage. Belle Terre had a zoning
ordinance which restricted land use to one-family
dwellings, with “family” being defined as persons
related by blood, adoption, or marriage, or two
unmarried cohabitating people. The Village of
Belle Terre (defendant) cited the Dickman house
for a violation of this ordinance because the six
students living in the house were not a “family.”
The Dickmans and their tenants (plaintiffs)
brought suit alleging that the ordinance violated
their equal protection rights. The district court
upheld the ordinance as constitutional, and the
Court of Appeals reversed. The Village appealed
to the United States Supreme Court.
c. Reasoning-- Economic and social regulations are
generally upheld against equal protection challenges where the law is
reasonable and bears a rational relationship to a proper state objective.
The government’s
police power to enact zoning restrictions applies
not only to its efforts to eliminate filth and
unsanitary conditions, but extends also to enact
restrictions designed to further positive goals
such as fostering an environment conducive to
families and childrearing. In this case, the
ordinance was not arbitrary because it was
designed to reduce noises and traffic, and to
provide quiet and open spaces for children to
play. No constitutionally-protected interest was
implicated by the regulation; for example, the
ordinance does not prohibit racial minorities from
living within the city. The ordinance also does not
burden fundamental rights such as the right to
vote, the right of association, the right of access to
the courts, or any right of privacy. The definition
of “family” is an exercise of legislative discretion,
and is outside the realm of judicial secondguessing.
3. Moore v. City of East Cleveland, Ohio--The right of
related family members to live together is
fundamental and protected by the Due Process
Clause, and necessarily encompasses a broader
definition of “family” than just members of the
nuclear family.
a. Issue: Does a housing ordinance that limits the
occupancy of a dwelling unit to members of a single
family, and narrowly defines the term “family” to
include only a few categories of related individuals,
violate the
Due Process Clause of the Fourteenth
Amendment?
b. Factual Background-- The City of East Cleveland
(CEC) (plaintiff) enacted a housing ordinance that limited the
occupancy of a dwelling unit to members of a single family. The
ordinance narrowly defined the term
“family” as encompassing only a few categories of
related individuals. Inez Moore (defendant) lived
in East Cleveland in a home with her son and two
grandsons. Under the housing ordinance, this
arrangement was outside the legal definition of
“family.” Moore received a notice of violation of
the ordinance from the CEC and when she
refused to modify her living arrangement, Moore
was charged with criminal penalties. Moore was
convicted and sentenced to a fine and five days in
jail. Moore appealed to the Court of Appeals of
Cuyahoga County, Ohio, which sustained her
conviction. Moore then appealed to the United
States Supreme Court.
c. Reasoning: The CEC argued that its housing
ordinance should be sustained based on the Court’s previous decision in
Village of Belle Terre v. Boraas, 416 U.S. 1 (1974), where a housing
ordinance limiting occupancy
in single residences was sustained because it bore
a rational relationship to permissible state
objectives. However, the present case is
distinguishable from Belle Terre because the
Belle Terre ordinance expressly allowed all who
were related by “blood, adoption, or marriage” to
live together. It prevented only unrelated
individuals from living together, while the CEC
ordinance limits blood relatives from living
together. When a city attempts such an intrusive
regulation of family as that present in the CEC
ordinance, the court must carefully examine the
importance of the government's objective and the
extent to which the objective is advanced by the
ordinance. CEC seeks to justify its ordinance as a
means of preventing overcrowding, minimizing
traffic and parking congestion, and avoiding an
undue financial burden on the CEC’s public
school system. Although these are all legitimate
public purposes, the housing ordinance serves
them only marginally and is not necessary to
their accomplishment. The right of family
members to live together is fundamental and
protected by the Constitution. The CEC’s
argument that this right extends only to nuclear
family members is rejected. The tradition of
uncles, aunts, cousins, and grandparents sharing
a household along with parents and children has
strong historical roots and is worthy of
constitutional recognition. The CEC’s housing
ordinance improperly limits this right, is
therefore unconstitutional, and the decision of the
court of appeals is reversed.
D. Eminent Domain—Forced transfer of ownership of land
from a private party to the government (always a taking)
 Government takes title through an action for
condemnation
o Measure of last resort
o Controlled by state law
o Why might they need it?
 Holdout problems
 Large scale redevelopment
 Achieve land
assembly/redevelopment subject to
public transparency laws & public
input
 Just Compensation: Government has to pay
full "objective" market price for the taking.
 What Qualifies as Public Use?
o Kelo v. City of New London-- A state’s
use of eminent domain to condemn
property from private individuals and
redistribute it to other private
individuals constitutes a “public use”
under the Fifth
Amendment if it is rationally related to a
conceivable public purpose.
 Issue— May a state exercise its
eminent-domain authority to
condemn private property and sell
it to private developers for the
purpose of creating new jobs and
increasing tax revenues without
violating the “public use”
requirement of the Fifth
Amendment?
 Factual Background— In 2000, the
City of New London, Connecticut
(defendant) approved a new
development project that involved
using its eminent-domain authority
to seize private property to sell to
private developers. The city stated
that the purpose of this exercise of
eminent domain was to create new
jobs and increase tax revenues from
the sale of property. Susette Kelo
(plaintiff) had lived in a home in
the New London area since 1997.
Wilhelmina Dery (plaintiff) was
born in her New London home in
1918 and had lived in the home
with her husband Charles
(plaintiff) for roughly sixty years.
The property owned by Kelo and
the Derys was in one of the areas
scheduled to be condemned by the
city’s development project. Nine
private property owners, including
Kelo and the Derys (plaintiffs),
brought suit in Connecticut state
court to challenge the project on the
grounds that it violated the “public
use” requirement of the Fifth
Amendment. The state trial court
granted an injunction prohibiting
the taking of some properties but
not others.
 Reasoning-- In Berman v. Parker,
348 U.S. 26 (1954), and Hawaii
Housing Authority v. Midkiff, 467
U.S. 229 (1984), a state’s use of
eminent domain to take property
from private individuals and
redistribute that property to other
private individuals was upheld,
because the overarching purpose of
the eminent-domain programs is to
promote the public welfare in some
way. State legislative judgments
about the prudence of programs
providing for the public good in
these precedent cases are entitled
to great deference from the judicial
branch. In the same way in the
present case, the State of
Connecticut’s legislative judgment
that the eminent-domain program
at issue is necessary to promote
public benefits, such as increased
jobs and tax revenue, is entitled to
great deference. Relying on
previous decisions, the Connecticut
Legislature’s plan unquestionably
serves a public purpose, satisfying
the public-use requirement of the
Fifth Amendment. Kelo’s argument,
that a true public use cannot confer
only economic benefits on the
public, is rejected—an economic
benefit conferred on the general
public can still constitute a viable
public purpose. Additionally, Kelo’s
argument that the proposed public
benefit needs to be “reasonably
certain” to occur is rejected as well.
 Public Purposes (without public access)
include:
o Harm abatement/public health
o Beautification/aesthetics
o Emphasis on whole plan, not specific
parcel
o Public need defined by gov't not
landowner
o Eliminate land oligopoly/ End unequal
and dysfunctional distribution of land
**Defer to legislative judgement
1. Regulatory Takings—Gov. Doesn't take your land,
but it restricts what you can do with it (may be a taking)
a. ED= Government unquestionably attempting
to purchase property; if for public use, must pay just compensation.
b. Regulatory takings cases—Government limits
use of property to such a degree that it is equivalent to "taking" of a
property under the 5th Amendment.
 Penn Central Transportation Co. v. NYC-In determining whether a state regulation
constitutes a taking under the Fifth and
Fourteenth Amendments, courts should
consider the economic impact of the
regulation on the owner, the extent to which
the regulation has interfered with the
owner’s reasonable investment-backed
expectations, and the character of the
government action involved in the
regulation.
o Issue: Whether the Landmarks
Preservation Law as applied to Penn
Central constitutes a taking for public
use of the company’s property that
requires the payment of just
compensation under the Fifth and
Fourteenth Amendments.
o Factual Background: In 1965, New
York City (defendant) enacted the
“Landmarks Preservation Law” to
enable the city to designate certain
buildings and neighborhoods as
historical landmarks. Penn Central
Transportation Co. (Penn Central)
(plaintiff) owned Grand Central
Terminal in New York City which was
designated as a historical landmark
under the law. In 1968, to increase its
income, Penn Central leased the
airspace above Grand Central
Terminal for fifty years to UGP
Properties, Inc. Penn Central expected
the lease to provide it with millions of
dollars of additional income every
year. Penn Central and UGP then
submitted two proposals for building
designs to the New York City
Commission and applied for
permission to construct an office
building above Grand Central
Terminal. After lengthy hearings, the
Commission denied this request on the
grounds that Grand Central Terminal
was a historical landmark. Penn
Central brought suit in New York
Supreme Court against New York City
alleging that the City Commission’s
application of the Landmarks
Preservation Law which denied its
rights to build an office building above
Grand Central Terminal and receive
revenue from the building constituted
a taking of the company’s property
without just compensation as required
by the Fifth and Fourteenth
Amendments.
o Reasoning: Precedent decisions have
been essentially ad hoc, factual
inquiries based entirely on the facts of
an individual case, with no precise
standard articulated for when
principles of fairness and justice
require the payment of just
compensation for a taking. In response
to its frustration over this lack of
standards, a new multi-factor test is
articulated for determining when a
taking requires the payment of just
compensation to a property owner.
When determining whether a state
regulation constitutes a taking of
private property for public use with
the requirement of just compensation
under the Fifth and Fourteenth
Amendments, courts should
consider the economic impact of
the regulation on the owner, the
extent to which the regulation has
interfered with the owner’s
reasonable investment-backed
expectations, and the character of
the government action involved in
the regulation. Additionally,
precedent decisions often do not
find a taking when private
property is destroyed to promote
the health, safety, and general
welfare of the public. Applying
these principles to the present case,
Penn Central’s overall assertion that
any economic restriction imposed on
the use of their property under the
Landmarks Preservation law
constitutes a taking which requires
just compensation is rejected. The
economic impact of the law on Penn
Central does not constitute a total
diminution of the value of its property,
as it can still generate revenue from
renting out portions of Grand Central
Terminal. It is merely prohibited from
gaining additional revenue from
leasing the airspace rights above the
building. Penn Central’s investmentbacked expectations are not
significantly impaired by the
regulation, as the revenue from
developed airspace was not an option
when Penn Central first invested in
the property. Finally the
governmental invasion caused by the
regulation is not physical (an invasion
which is almost always upheld as a
taking.) Rather, the government
“invasion” in the present case is
merely a prohibition on further
development of Penn Central’s
property. Additionally, a significant
public interest in light space was
furthered by regulation which
prohibits the development of airspace
above the terminal.
 Ad Hoc Test Broken Down
o Character of Gov't Action
 Physical nature?
 Reason for action?
o Economic Impact
 Significant Diminution in value?
 Singling out?
 Average reciprocity of
advantage?
o Investment-backed Expectations
 Core expectations?
 All or just some expectations?
2. Physical Occupations—Government authorizes
someone else (or the general public) to use your land or intrude upon it
(likely a taking)
 Cedar Point Nursery
o Majority:
 "Whenever a regulation results
in a physical appropriation of
property, a per se taking has
occurred . . . Rather than
restraining the growers' use of
their own property, the
regulation appropriates for the
enjoyment of third parties the
owners' right to exclude"
 "the right of access by union
organizers to the premises of an
agricultural employer for the
purpose of meeting and talking
with employees and soliciting
their support"
** What does this right of access
sound like?
o 3 Exceptions
 Isolated physical invasions
(trespasses)
 Invasions "consistent with
background restrictions on
property rights"
 Rights of access conditioned on
receiving certain benefits