QUICK AND DIRTY
CHECKLIST
PERSONAL PROPERTY / FOUND OBJECTS / IP
Watch for Good Faith Purchaser – UCC 2-403
IS THERE CREATION OF SOMETHING?
Copyright, Patent, Trademark
HAS ANYTHING BEEN FOUND?
Stolen, mislaid, treasure trove, lost, abandoned
WHERE WAS IT FOUND?
Do analysis for above
DID IT HAVE TO DO WITH NATIVE AMERICANS?
Special rules for remains/funeral items
ANIMALS?
Capture, Pierson v. Post
PROPERTY GIVEN TO SOMEONE TO HOLD?
Bailment
HAS VALUE BEEN ADDED?
Accession, fixtures?
USE OF A PERSON’S IMAGE?
Right to Publicity
GIFTS/PRESENT INTEREST/FUTURE ESTATES
IS THERE A GIFT?
Need intent/delivery/acceptance (even of deed)
GIFT NOW – PRESENT ESTATE
No condition – Fee Simple Absolute
Condition – simple – FSD (automatic)
Event happens - Condition Subsequent (not automatic)
Event happens+goes to someone else: Executory Interest
(automatic)
GIFT LATER – FUTURE INTEREST
Reverter, remainder, vested or contingent remainder
WILL GIFT HAPPEN IN 21 YEARS OR MORE?
If no, RAP – (don’t forget wait and see 90yrs, cy pres)
IS THERE A WILL?
Holographic will needs witnesses, only ok in some states
TRESPASS/AP/PRESCRIPTIVE EASEMENTS
Person – trespass, land -- encroachment
HAS PERSONAL PROP BEEN TAKEN OR
STOLEN?
Trespass to chattels, conversion, takings
DEFENSES TO TRESPASS
Consent, necessity
ADVERSE POSSESSION OF REAL PROPERTY
Exclusive, continuous, open and notorious, non-permitted,
time/statute of limitations
AP OF PERSONAL PROPERTY
O’Keeffe, 3 options: conversion,discovery, demand/refuse,
PUBLIC ACCOMODATIONS / FHA
IS THERE POTENTIAL DISCRIMINATION?
CRA 1866 (contracts, property) (race only)
CRA 1964 (public accom.) (race, color,religion... NOT
SEX)
FHA (Residential Real Estate) (sex, race, disability, etc)
COULD THERE BE EXCEPTIONS?
Sexual orientation not covered, private clubs, religious
organization, maximum occupancy, family house w few
units (see § 3603(b))
SHARED PROPERTY
DO TWO PEOPLE OWN PROPERTY?
Joint Tenants, Tenants in Common, Tenancy in Entirety
DOES ONLY ONE LIVE THERE NOW?
Ouster, severance, partition?
UNMARRIED COUPLES?
Palimony, JT or TIC, (or CIR - WA only)
IS THERE A CONDO OR HOA?
CIC rules, covenants
IS THERE A LANDLORD?
Landlord/Tenant Duties and Remedies – Implied Warranty
of Habitability. Licenses v. leases.
ARE TENANTS TRANSFERRING?
Sublet v. Assignment
BANK ACCOUNTS?
Separate in WANNC states,
DEATH/DIVORCE
Do both CP and NCP analysis if marital property for either
HAS THERE BEEN A DEATH?
watch for abusive spouse, simultaneous death
IS THERE A WILL?
Yes – look to present estate/future interest
No – Intestacy standard
Remember: WILT takes interest on SP, WANNC does not
Cannot disinherit spouse, gifts/inheritance do not get divided
NEIGHBORS ISSUES
IS THERE AN INTERFERENCE?
Nuisance – private/public, nuisance per se
Nuisance – USE GRAVITY/UTILITY TEST
RULE IN PLACE BEFORE TO FOLLOW?
Implied Reciprocal Negative Easement
IS SOMEONE ALLOWING SOMEONE ELSE TO
USE PROPERTY?
Easement – non-possessory, non-exclusive permanent
Express, Implied, estoppel, prior use, necessity
PREVIOUS PROMISE?
Covenant – in writing, runs with land, touches and
concerns the land, notice, horiz and vert privity
IS SUPPORT NEEDED? IS LIGHT/AIR BLOCKED?
Support mandatory, light/air is not
REAL ESTATE / DEEDS
IS DEED VALID?
ID parties, define property, intent to convey, signature of
grantor, be delivered and acceptance (unless transfer on
death)
HAS DEED BEEN PASSED AFTER DEATH?
Transfer on Death valid in 12 states
HAS DEED BEEN RECORDED?
Race/Notice/Race-Notice
HAVE ALL 6 GENERAL WARRANTIES BEEN
FOLLOWED?
Seisin, right to convey, against encumbrances, quiet
possession, defend, further assurances
MARKETABLE TITLE/EQUITABLE
CONVERSION?
How real estate passes. Look for mistake/death/breach
ZONING / LAND USE
Any big-picture land or changes of use, talk about zoning
# of stories of building,
IS THERE WATER?
Public Trust Doctrine, Riparian Rights, surface/ground
TAKINGS
Has government taken property without paying for it?
Property, taken, by government, for public use, w/o paying
Police Power?
Regulatory – physical/economically beneficial use
Ad hoc test: (1) economic impact, (2) the interference with
distinct investment-backed expectations, and (3) the character of
the government action.
Exactions
ANIMALS

RULE OF CAPTURE
o Ownership is not established by mere pursuit, but only by actual capture or
reduction to probable capture by an individual (i.e. constructive possession)
 Pierson v. Post = a man who was hunting a fox was about to kill it;
another man interfered by shooting and killing it first; court held
ownership of wild animals only established by actual capture
 Mortally wounding an animal is constructive possession
o Capture while TRESPASSING
 One who takes possession of wild animals while trespassing on private
land of another must surrender title to the landowner
o Malicious interference
 Courts have recognized that when two individuals are attempting to
capture a single animal, they will NOT tolerate one of those individuals
maliciously interfering with the other’s efforts
 Keeble v. Hickeringill = pltff had decoy pond designed to capture
ducks on his land; deft fired gun on deft’s own land next door to
scare ducks away; court established prohibition of malicious
interferences with an individual’s pursuit of wild animals
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Popov v. Hayashi = pltff almost caught a homerun ball at baseball
game but was attacked by those around him and deft caught the
ball; court held one is entitled to a pre-possessory interest in an
item when he completes a significant portion of the steps to
achieve possession of the item but is thwarted due to the unlawful
conduct of another
PETS
o Pets belong to their owners – owners of domesticated animals do NOT lose
ownership unless an animal is lost for a reasonable amount of time
 EXCEPTION: if a finder cares for a found pet over a period of time, the
finder may acquire possession
WILD ANIMALS
o Animae Revertendi
 Wild animals in the habit of returning to a property belong to the owner of
that property even if captured by another while wandering
 Land owners have constructive possession of wild animals on their land
in that they have exclusive right to hunt on their own lands with the intent
of capturing said animals
o “Domesticated” wild animals
 If a wild animal has been domesticated or tamed by way of education or
confining them to his own power that they cannot escape and use their
natural liberty – they belong to their owner until they regain natural liberty
 EA Stephens & Co v. Albers = deft argued that the tattooed fox deft
purchased did not belong to pltff because fox had escaped its enclosure;
court held fox was semi-domesticated, escaped by accident, and was
pursued by owner THUS not subject to law of capture
 Note: there may be a need for wild animal to be tagged or collared
to truly be considered “domesticated” by the court
TRESPASSING ANIMALS
o Animals belonging to others are generally subject to trespassing laws
 BUT… the absolute duty to either fence in the animal (burden on animal
owner) or fence the animal out (burden on property owner) is
jurisdictional
 EXCEPTION = pets; most states allow household pets to roam and do
NOT hold the owner liable for entry onto another’s land – although they
may be responsible for actual damages if any are caused
FINDERS
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General
o Finder laws vary by state
 Many states have statutes governing lost property – statutes usually grant
property to finder as long as finder reports the find & owner fails to
recover it
o Title is relative  first finder may prevail over a later finder, even though the first
finder would lose the ownership contest with the true owner
LOST PROPERTY
o Lost Object  owner unintentionally and involuntarily parts with possession
o Owners who lose their personal property RETAIN ownership rights unless they
intentionally relinquish them
 Finders of lost objects have the right to possession over anyone BUT the
true owner
 RCW 63.21.010 = A finder who wishes to keep the property must get an
appraisal and report it to the police within 7 days; the police will publish a
notice giving the true owner 60 days to come forward
 FINDERS v. LANDOWNERS
 When finder is NOT trespassing, courts are divided as to whether a
found object belongs to finder or landowner
o Private home – ordinarily, landowner keeps property
found on his private land or embedded in the soil of his
private land
o Public place – courts are divided, but there is a tendency to
give ownership to finder
 Exception: treasure trove
 If employee is the finder, employer receives
property, UNLESS employer yields to landowner,
then landowner wins
MISLAID PROPERTY
o Mislaid Object  owner intentionally and voluntarily put property where it was
found but forgot or failed to return/retrieve it
 Finder of mislaid object has possessory rights over everyone except true
owner…
 UNLESS found on private property – then landowner gets ownership
rights over the property (regardless of public v. private land)
 Benjamin v. Linder Aviation = employee found $18k in sued for
entitlement to the money on grounds that it was “lost” property; court held
the careful placement of the money suggests it was MISLAID (not
abandoned because not intentionally left there, not lost because money
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was placed there purposefully, not treasure trove because not old enough)
THUS it belongs to the owner of the plane; money belongs to the bank
ABANDONED PROPERTY
o Abandoned Object  owner intentionally abandons and voluntarily relinquishes
any claim
 Owners abandon their property only by intending to relinquish it and
engaging in some action that demonstrates the intent to relinquish it
 Finders become the owner and obtain ownership of title as well
 *it is essential to show there was INTENT on part of the owner to
give up the property; mere passage of time is not enough to
constitute abandonment
o Unmarked graves
 Finder has NO RIGHTS to goods from unmarked graves because they
were never abandoned
 Charrier v. Bell = an amateur archeologist found funeral objects
embedded in the ground that had been placed there long ago by members
of the local Indian tribe at the time of the burial; court held the objects
were intentionally placed in the earth with intent to remain there so
possession of objects goes to descendants of tribe
 Native American Graves Protection & Repatriation Act (1990): All
human remains and funerary objects that are found on tribal or
federal lands belong to the lineal descendants of the person buried;
if such descendants cannot be found, items belong to tribe whose
land it was on OR with the closest cultural affiliations
o This act also applies to sacred objects and objects of
cultural patrimony
o Only exception = when the items are indispensable for
completion of scientific study, the outcome of which would
be a major benefit to the U.S.
TREASURE TROVE
o Treasure Trove  owner intentionally and voluntarily puts “treasure” (i.e.
coins/currency) where it was found and it is there for such a long time that the
owner is probably dead or undiscoverable
 Finder has possessory rights over everyone but true owner…
 REGARDLESS if found on private property (unless finder is trespassing)
but courts are split on this – some states still award rights to property
owner
 Today, however ~
 Most states apply the rules associated with lost property & do not
recognize treasure trove as a distinct category
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o LAW OF SALVAGE
 The finder of treasure is entitled to a reward for saving the goods
 Abandoned Shipwreck Act (1987): An abandoned shipwreck that is
embedded in the land belongs to the US government (if embedded within
3 miles of state or federal lands) OR to the relevant Indian nation (if
embedded in Indian land)
 Also governed by law of salvage and/or finders law; if ship was
NOT abandoned, finder entitled to possession of recovered goods
but not title
STOLEN PROPERTY
o Stolen Property  Owner’s property is forcibly removed by a third party
o Finder of property may have possessory rights over all but true owner in the
meantime
TYPES OF FINDERS
o Finders out of Trespass
 If finder is trespassing, landowner receives the property
 Courts are split on finders out of trespass v. initial possessors (though not
true owners), but more modern courts find for the initial possessors in
order to punish those engaging in illegal activity
o Finder on Third-Party Private Property
 Courts are divided, but chattel found in a private place (e.g., a home) may
be granted to the owner of the land, rather than the finder. This is
especially true for chattel embedded in the soil.
 However, courts are sometimes more likely to find for the finder in cases
regarding an abundance of treasure, or in situations wherein the landowner
did not know about the object and may never have come to find out about
it but for the efforts of the finder.
 Hanna v. Peel = The court awarded a brooch to the finder rather than the
landowner when the landowner was not physically occupying the property
and the finder turned the brooch over to the police to make it available for
recovery
o Finder on Public Property
 QUASI PUBLIC PROPERTY
 When lost or mislaid chattel is found on quasi-public property (i.e.
grocery store) courts are split on whether to let finder keep
possessory rights until true owner is found OR to give to owner of
property in case the true owner comes back to look for it
 TRULY PUBLIC PROPERTY
 Court will usually grant finder full possessory rights until true
owner is found (i.e. something found at a park)
o Secondary, Tertiary, etc. Finder
 The secondary, tertiary, etc. finder’s right to possession follow’s that of
the initial finder and the original owner.
 If the initial finder were to assert their right to possession, a
secondary finder would have to comply.
 If both the original owner and initial finder were to assert their
rights to possession, the secondary finder would need to transfer
possession to the original owner
BAILMENTS
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GENERAL
o Bailment  a person’s (the bailor) delivery of her goods/chattel to another person
(the bailee) to hold for a period of time WITHOUT conveyance of title; bailee has
right of possession arising from the terms of the bailment and must return the
property to the bailor according to those same terms
 Bailor-bailee relationship is usually a contractual one
o Types Of Bailments
 Primary benefit for BAILOR – delivery of possession is of no benefit to
bailee, may even be burdensome to bailee, i.e. please take care of my cat
 Primary benefit for BAILEE – no benefit to bailor, i.e. can I borrow your
car
 MUTUAL benefit – i.e. parking garage that you pay to park in
DUTIES IN BAILOR-BAILEE RELATIONSHIPS
o Traditional
 If primary benefit of bailor: avoid gross negligence, bad faith
 If primary benefit of bailee: extraordinary care
 If mutual benefit: reasonable care
o Modern
 Reasonable care in all cases, OR
 Statute provides the standard of care
COMMON BAILMENT RELATIONSHIPS
o Public Accommodations
 Usually strictly liable if bailment property is lost or stolen
o Finders Of Lost/Misplaced Goods
 Sometimes liable to the true owner for loss or damage to the bailment
property, but ONLY IF they are grossly negligent
o Innkeepers

States have limited liability through statute by requiring guests to inform
of extraordinarily valuable goods they have, and limit the dollar amount of
potential liability or require guests to store the goods in a hotel safe
o Entrustments
 A willful sharing of an object for use, with the expectation that it will be
returned
 Congregation jeshuat isreal v. congregation shreaith isreal = A
synagogue in Rhode Island entrusted rimonim (objects that decorate the
scrolls of the Torah) to a sister congregation in NY; the sister congregation
then claimed the rimonim as their own and refused to give it back, saying
it was a gift; court disagreed, and found it to be a bailor-bailee relationship
because of their years-long relationship of lending property to one another
 UCC 2-403: Entrustment Doctrine
 Any entrusting of possession of goods to a merchant who deals in
goods of that kind gives him power to transfer all rights of the
entruster to a buyer in ordinary course of business.
 “Entrusting” includes any delivery and any acquiescence in
retention of possession regardless of any condition expressed
between the parties to the delivery or acquiescence and regardless
of whether the procurement of the entrusting or the possessor’s
disposition of the goods have been such as to be larcenous under
the criminal law.
GOOD FAITH PURCHASERS
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STOLEN GOODS
o Title of stolen goods is VOID
o An owner does NOT lose title to property if it is stolen, even if it is subsequently
purchased by an innocent buyer (thus purchaser of stolen goods generally has no
legal relief due to lack of title)
o EXCEPTION  UCC 2-403 Entrustment Doctrine
 If an item is "entrusted" (possession legally transfers without transfer of
title) to a merchant who deals in goods of that kind, the merchant can then
"transfer all the rights of the entruster to a buyer in the ordinary course of
business."
BONA FIDE PURCHASER
o IF a person innocently in good faith takes possession of another’s property and
adds significant value, such that it would be unjust to require the return, the title
passes to the new owner (BFP)

Original owner may be reimbursed for original value and can sue seller for
damages
 IF seller was induced to sell by fraud, the buyer’s title is voidable and can
be reclaimed, unless buyer resells to BFP
 UCC 2-403 Merchant’s exception: IF seller entrusted property to a
merchant who deals in goods of that kind, and merchant then sold the
property to a BFP, the property cannot be reclaimed.
 Heinrich v. Titus-will Sales inc = pltff hires car broker to find him
a pickup truck, car broker finds truck for pltff; pltff gives money to
car broker to pay for truck but car broker’s check bounced; court
held that pltff was a good faith purchaser and is entitled to
ownership of truck under UCC 2-403
o Void title vs. Voidable title
 A thief has void title (no title) and cannot convey title to anybody else.
 One who obtains possession legally, but title illegally, conveys voidable
title
 If the true owner demands it back, it must be returned – if the one
with voidable title conveys the item to a bona fide purchaser; once
BFP has the item, the original owner CANNOT regain title
(though they can sue the fraudster for conversion)
ACCESSION & FIXTURES

ACCESSION
o Accession  the process of adding value to property by the expenditure of labor
or adding new materials
o Basic principle is that the original owner is presumed to own ANY increase in the
principal, regardless of who is in possession of the principle
 This refers to rights that extend from the chattel to what the chattel
produces or generates
 Examples of common accessions: increases in value based on
market demand (capital gains), interests or dividends, rent
generated, offspring
 Exceptions
o Some community property states (mainly Texas, Louisiana,
Idaho, Wisconsin) allow accessions to be owned by both
spouses, even though one of the spouses is the only true
original owner
 CONFUSION – goods of one person become so mixed with those of
another that ownership of the individual items can no longer be separated

o LAW OF ACCESSION
 When one takes personal property that belongs to someone else and adds
significant value to it OR incorporates it into the takers own valuable
property AND it would be unjust to require to the taker to return the taken
item to the owner – LAW OF ACCESSION transfers title from original
owner of that personal property to the owner of property with which
it has been mixed
 Innocent trespasser: When trespasser acted in good faith and was
unaware of true owner  Original owner is entitled to DAMAGES
for conversion but cannot reclaim title
o In cases of confusion, the taker is only liable to pay
original owner for the value of the raw, untouched
materials
o Ochoa v. Rogers = A guy had a junk car that was
mysteriously taken and ended up in the defendant’s hands.
The defendant repaired and fixed up the car. Upon finding
the car, the plaintiff demanded it back. The court held that
because the defendant added so much value to it, he only
owed the plaintiff the value of the junk car as “raw
materials”
o Myers v. Gerhart = deft hired a company which
accidentally cut down trees from pltff’s property, trees
were converted into lumber by deft; court held if chattel is
wrongfully taken and then comes into the hands of an
innocent holder who converts the chattel into a thing of
different species so that its identity is destroyed, the
original owner cannot reclaim it
 Accession usually DENIED if the taking was originally wrongful
(i.e. by a willful trespasser acting in bad faith) OR if the original
property’s identity has not been lost
FIXTURES
o Fixtures  personal property that becomes fixed to real property and is treated as
part of the real property
o When chattels become incorporated into the realty so that they lose their identity,
they become part of the realty (i.e. bricks built into building; concrete poured to
foundation) VS. where identification is possible but removal would occasion
considerable loss or destruction, the items are considered fixtures (i.e. heating
pipes embedded in the wall; floor of house)
 Lighting Fixtures
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
Unless the sale contract states otherwise, lighting fixtures may be
considered as ‘part’ of the house being sold and may be subject to
a fixture-based property suit if they are removed post-sale.
Crops
 Crops are normally treated as part of the land unless the owner has
contracted to treat them otherwise. However, once they are severed
from the land, they become personal property.
HUMAN BODIES
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
Research with Excised Tissue
o To use excised tissue in research, the medical professional must provide
INFORMED CONSENT in order to avoid a breach of fiduciary duty; In this, the
researcher must disclose their financial interest in excising the tissue of the patient
o While the person providing the tissue owns it while it is innately in their body, the
minute it is excised, they lose all possessory and property right claims to it
o Negligence v. Conversion
 A person who is dispossessed of their possessory/property rights to their
tissue due to a lack of informed consent has a stronger claim for
negligence rather than conversion, because the tissue has lost its status as a
property
o Moore v. Regents of the University of California = Doctors treating a patient
used some of his spleen cells removed during an operation to develop a “cell line”
that had substantial commercial value; court decided that Moore had no property
claim in his cells but that the doctors had breached their fiduciary duty to him by
not disclosing what they intended to do with his cells
Human Bodies
o The next-of-kin have a QUASI-PROPERTY RIGHT in a decedent’s body for
purposes of burial or other lawful disposition
 This entitles family members to obtain damages where an autopsy is
performed without consent
 Anatomical Gifts
 Uniform Anatomical Gift Act permits individuals and the next-ofkin of deceased to govern which of or if any of their organs or
tissues may be designated for research or transplants
 Tribal Skeletal Remains
 See Native American Graves Protection and Repatriation Act
 Methods to determine whether found skeletal remains are of
Native American origin – RCW § 68.50.645: Upon finding skeletal
remains, the department of archaeology and historic preservation
must notify all affected cemeteries and federally-recognized tribes
in the jurisdiction were the remains were found or who had cultural
ties to the geographic area, and the state anthropologist will make
an initial determination of whether the skeletal remains are Indian
or non-Indian

Sale of Body Parts
o The National Organ Transplant Act (NOTA) states that it is UNLAWFUL for any
person to knowingly acquire, receive, or otherwise transfer any human organ for
valuable consideration for use in human transplantation if the transfer affects
interstate commerce. The preceding sentence does not apply with respect to
human organ paired donation.
 Fluids generally not included
 Blood – NOTA does not prohibit compensation for donation of
blood or substances in it, such as bone marrow
 Semen – generally considered property in terms of NOTA, and the
sale or conveyance of semen is allowed
 Sperm – sperm refers to the actual reproductive cells held within
the seminal fluid; Unlike semen, sperm is not considered property
and is often rather brought as an issue of privacy
o Hecht v. Superior Court = A man committed suicide after
writing a will leaving 15 vials of semen to his girlfriend.
While his adult children objected, the court granted his
sperm to his girlfriend under the idea that this was an issue
of “privacy”; at time of death, Kane had a property interest
in his sperm such that he could direct the sperm’s
disposition after his death – thus Hecht was entitled to the
sperm
 Eggs – are considered property in terms of the NOTA and the sale
or conveyance of eggs is allowed
 Embryos – generally NOT considered property except in rare
circumstances; the sale of human embryos is prohibited
o Davis v. Davis = girl of divorced couple wanted their
frozen embryos implanted in her to have a kid but exhusband objected; court held frozen embryos are not
“persons” nor “property” but occupy an interim category
that entitles them to special respect because of their
potential for human life; the parties share an interest in the
nature of ownership to the extent that they have decision-
making authority concerning disposition of the preembryos (i.e. NOT a true property interest)
o ***Court notes that ordinarily, the party wishing to avoid
procreation should prevail, UNLESS the other party has no
reasonable possibility of achieving parenthood by means
other than use of the pre-embryos in question
COPYRIGHT


Source of Copyright Law
o Article 1 §8 of U.S. Constitution – Dictates that congress has the power to
promote the progress of science and useful arts, by securing for limited times to
authors and inventors the exclusive right to their respective writings and
discoveries.
o Copyright Act 17 U.S.C. 101-1132 – Spells out basic rights of copyright holders,
codified the doctrine of fair use, and the term for which the copyright lasts
SCOPE
o Copyright protects original works of authorship fixed in any tangible medium
of expression such as literature, music, drama, graphic, pictures, choreography,
architecture, and sculpture
 Ideas & facts may NOT be copyrighted
 Designs that unify form and function may NOT be copyrighted
o FAIR USE
 Copyright Act allows use of copyrighted works without owner's consent
under "fair use" exception (i.e. use is privileged for purposes such as
criticism, comment, news reporting, teaching, scholarship, research, etc. +
ALSO satisfies other criteria in the statute)
 Court will consider the following:
 Purpose and character of use
 Nature of the copyrighted work
 Amount and sustainability of the portion used in relation to the
work as a whole
 The effect of the use upon the potential market for or value of the
copyrighted work
 EXAMPLES  Noncommercial educational use more likely to be
allowed than commercial one; use of entire work or big portion of work is
unlikely to be fair use; use that has an negative impact on potential market
for the original work is unlikely to be fair use
 Standard for determining “fair use” is UNCLEAR
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Sometimes substantial copyrighting is allowed (i.e. for parody) and
sometimes minor copyrighting not allowed (i.e. material is
distributed in a manner that has a substantial impact on the market
for the copyrighted material)
 Suntrust Bank v. Houghton Mifflin Co = deft sought to publish a novel that
retells the story of Gone with the Wind from the perspective of one of its
main characters; court held the publication constituted a “paraody” of the
original work and is privileged under the fair use doctrine (parodies
need not be limited to variations intended for comic effect); the parody
also satisfied ¾ factors listed above
*Author’s ownership is in the COPYRIGHT and not in the work
itself i.e. when you sell a painting, you’re selling tangible personal
property but you are NOT selling the copyright
RIGHTS AND REMEDIES
o RIGHTS  Author has exclusive right to reproduce the work, to prepare
derivative works based on it, to distribute copies by sale or other transfer of
ownership to others, and to publicly preform or display the work
o REMEDIES  Copyright owner may also sue for injunctive relief and damages,
and criminal penalties may be available when one willfully copies and distributes
a copyrighted work for commercial gain.
DURATION
o A work is copyrighted as soon as it is produced; no registration or special
designation need be made to obtain copyright protection
 General authors – work is copyrighted 70 years after death of author
 Joint authors – work is copyrighted 70 years after death of last surviving
author
 Anonymous, pseudonymous, or works-for-hire – work is copyrighted 95
years from year of its first publication or a term of 120 years from the year
of its creation (whichever expires first)
INFRINGEMENT
o One can violate copyright law by helping others to infringe a copyright  when a
medium or person allows others to easily distribute in totality what has been
copyrighted or a large degree of what has been copyrighted
 Sony v. Universal Studios = court held that using VCR to view a movie
later rather than when it shows on TV is fair use because it did not affect
the market for the copyrighted works i.e. pltffs failed to prove that VCR
use would result in a decrease of audiences for shows aired on TV or in
theatres
 A&M Record v. Napster = court held Napster engaged in both direct and
contributory infringement of copyright because it allowed users to
download and copy a ton of copyrighted music without paying for them;
the essence of copyright law is the right to control reproduction of the
work and prevent others from copying the work without owners
consent
*HYPO: a photo of a painting is a violation of copyright because
reproductions are expressly protected by Copyright Act
 JK rowling v. RDR books = a harry potter encyclopedia was not a
derivative work of harry potter YET still violates rowling's copyright
because it copied and appropriated so much of the original works; thus
publishing the encyclopedia was unfair use
o Though not required to acquire a copyright, REGISTRATION 1) puts the public
on notice that a copyright is held in X and 2) is required before bringing an
infringement action
UNFAIR COMPETITION


PROHIBITED DECEPTION
o Common law prohibits the deception of customers as to the origin of products
(i.e. “palming off”)
TRADE SECRETS
o Common law also prohibits improper means of obtaining information about a
competitor’s business
o This includes misappropriation or the “unauthorized taking of publicly disclosed
information that a first competitor invests time and effort to create when the
taking diminishes or eliminates the first competitor’s incentive to continue to
create the information”
 International News Service v. Associated Press = by taking news
gathered by AP and selling it as its own, INS gains a commercial
advantage over AP; court held the right to exclusively sell news one has
gathered through its own time, labor, and money is a quasi-property right,
and interference with this right constitutes actionable unfair
competition
o Uniform Trade Secrets Act
 Prevents deception to customers and improper means of obtaining trade
secrets.
 Trade Secrets = information (formulas, patterns, compilations, programs,
devices, methods, techniques, or processes) that derive independent
economic value from being “secret” OR are reasonably guarded.
o REMEDIES



Injunction
Damages for the loss and unjust enrichment (i.e. for unintentional
misappropriation)
 Attorney’s fees
RELATED FEDERAL LAWS
o The Sherman Act
 Every contract, combination in the form of trust or otherwise, or
conspiracy, in restraint of trade or commerce among the several States, or
with foreign nations, is declared to be illegal.
 *The Sherman Act does not preempt state law.
o Federal Trade Commission Act
 Commission is empowered, among other things, to prevent unfair methods
of competition and unfair or deceptive acts or practice in or affecting
commerce.
 *The Federal Trade Commission Act does not preempt state law.
o Copyright Act § 301
 Explicitly preempts state misappropriation law only where copyrightable
material is involved (expression in a tangible medium) or where the state
right or remedy is not equivalent to any of the exclusive rights granted by
copyright law.
o Lanham Act § 43(a)
 Prohibits “any false designation of origin, false or misleading
representation of fact” that is likely to cause confusion or mistake as to the
packaging and appearance of a product that identifies it with a particular
producer.
PUBLICITY RIGHTS AND RIGHTS OF ARTISTS

PUBLICITY RIGHTS
o Publicity rights protect against unauthorized use of a person’s “likeness or image”
 Governed by state common law or state statute
 Rationale for such protection – prevent unjust enrichment by theft of one’s
goodwill and reputation
o Right of Publicity  gives owners control over the commercial use of their
identity (things that make up one’s individuality i.e. names, images, likeness,
voice)
 Imitators
 Publicity rights have been used to challenge the imitation of
artists as way to appropriate their image for commercial use


Any recognizable or unique quality of an individual can be
imitated
o Midler v. Ford = Ford hired a voice actress who sounded
like Bette Midler to imitate one of Midler’s songs for a
Ford car commercial; court held the deliberate imitation of
the distinctive voice of a professional singer was a violation
of publicity rights and constituted copyright infringement
o RCW § 63.60.010 = Every person has a property right in
the use of his or her name, voice, signature, photograph or
likeness
o White v. Samsung Elecs = commercial used a robot dressed
as Vanna White and purpose was to evoke image of vanna
white; court held that Samsung’s unauthorized use of
White’s identity violated her common-law right of
publicity
 Rights After Death
 The right of publicity is devisable and inheritable, though are
often subject to statutory time limits.
 RCW § 63.60.020 – Before 1998 publicity rights lasted 10 years
after death, and after 1998, that was extended to 50 years
regardless of whether the person was an individual or personality
 Limitations
 Publicity rights are limited by FREE SPEECH RIGHTS of authors
 Martin Luther King Jr Center for Social Change v. American
Heritage Products = Coretta Scott King, administrator of Dr.
King’s estate and MLK, Jr. Center for Social Change, and Motown
Records, an assignee of the right to several of Dr. King’s recorded
speeches, sued defendants to stop them from manufacturing and
selling plastic busts of right publicity under Georgia law and that
was a personal property right that had been inherited by his wife.
The Georgia Supreme Court rejected the contention that the First
Amendment protected the right to manufacture and sell busts of
public figures and it overrode publicity rights
MORAL RIGHTS OF ARTISTS
o Artists have the right to prevent mutilation or alteration of their artworks AFTER
the works have been sold  the interest in preserving the artist’s vision is seen as
a collective good that cannot be traded away
o Visual Artists Rights Act (1990)
 Grants living artists the right to prevent any intentional distortion,
mutilation, or other modification of their work which would be
prejudicial to their honor reputation or to works of recognized stature; so
long as that work was created or transferred by the artist after June 1991.
 EXCEPTION = Commissioned Art (art requested to be made on behalf of
another)
 Commissioned art is not subject to the Visual Artists Rights Act,
and may be distorted, mutilated, or modified at the will of the
private owner
 Phillips v. Pembroke Real Estate Inc = Defendants commissioned
art from the plaintiff for a park; They then redesigned the park in a
way that would require removal and relocation of the art; court
held that the Visual Artists Rights Act of 1990 generally preserves
artworks from destruction but does not require they be kept in
place
o Art and Construction
 Owners of buildings can remove works of art, such as murals, floor
mosaics, or architectural components IF they can do so without mutilating
the art work + they have made a good faith effort to notify the artist
beforehand
 In cases where the art must be destroyed for the construct, the artist must
waive their rights to preservation (UNLESS the construction operates for
the benefit of the public, then only good faith effort to notify artist is
required)
 Examples reflected in State Legislation
 California Art Preservation Act – Permits injunctive relief,
damages, and attorney’s fees for intention or threatened mutilation
or alteration of an artist’s work.
 Massachusetts Art Preservation Act – May prevent a site-specific
work from being moved without the artist’s consent when the
"location of the piece is a constituent element of the art.
o Cultural Property Rights
 Growing movement to have works of art or of historic or cultural heritage,
particularly antiquities, preservation protections (currently no recognition
in the US)
DIGITAL PROPERTY

OWNERSHIP OF DIGITAL PROPERTY
o Largely determined by terms of use agreements or licensing agreements
o There is a movement to transfer ownership of a decedent’s digital property to
surviving heirs, but current legislation really only protects possessory interests

Washington Uniform Fiduciary Access to Digital Assets Act (RCW §
11.120.010) = statute passed in 2015 commanding that digital media
companies provide heirs with the username and password to log in to the
digital accounts of the decedent, as well as a catalogue of their online
communications
GIFTS

INTERVIVOS GIFT
o Inter Vivos Gift  a transfer from one living person to another that requires
delivery, acceptance, and the donor’s intent
 INTENT to transfer title requires both present intent + mental capacity
to make the gift
 Gruen v. Gruen = A father gifted his son with a painting during his
lifetime but reserved a life estate for himself. After his death, the
stepmother took possession of the painting. She refused to give the
painting to her stepson on the basis that the gift was in nature and
invalid because the formalities of a will were not met. Court said
that retaining a life estate still showed an intent to transfer interest,
and that because all elements of an inter vivos gift were met, that it
was valid
 DELIVERY acts as a clear manifestation of donor’s intention to divest
herself of title and can be accomplished by
 Actual Physical Delivery – done takes dominion and possession
over the property
 Constructive Delivery – if physical delivery not feasible then donor
can surrender control of the item (i.e. giving donee the only key to
a locked box)
 Delivery in Writing – sufficient if donor clearly expresses written
intent to give a gift, clearly describes the subject being gifted, signs
the document, and passes the writing out of his control with the
intention that it reach the done
 Symbolic Delivery – if physical delivery impossible or impractical,
it then donor can give some object that is not the actual gift but is
symbolic of it (i.e. delivery of a written instrument)
*gifts not delivered may still be enforced if there is evidence of intent
to transfer
 ACCEPTANCE by the donee of a gift is presumed; refusal of a gift must
be evidenced by an express affirmative act

o Inter Vivos Gift Effective at Death  usually considered a prohibited
conditional gift; they are known as non-probate transfers or will substitutes
 Many courts consider this an attempt to cheat the will and intestate system
and will not recognize inter vivos gifts effective at death
 How do we get around this? By giving a gift with a present right of title
and a postponed possession
 EXAMPLES: trusts, joint tenancies, pensions, joint bank accounts
with survivorship, life insurance policies, real property and/or
stock held in a payable-on-death format
 RCW § 11.02.091 – Authorizing all “otherwise effective written
instruments” that include a “non-probate transfer on death”
regardless of whether they comply with the formalities for a will to
be considered an inter vivos transfer effective at death. “Otherwise
effective written instruments” include deeds, contracts, and
trusts
TESTEMENTARY TRANSFER
o Property owners are entitled to write a will determining who will own their
property when they die
 PROBATE: legal process for winding up a person’s affairs when they die
 Elements – determines whether decedent had a valid will, whether
decedent owned the property at time of death, whether decedent owed
anyone anything at time of death and pays any creditors to extent the
estate is sufficient, disposes of what’s left under terms of will
 Uniform Probate Code covers both wills and intestacy but laws differ
among different states
o Testamentary Transfer  a transfer at death; individuals may pass property
through a VALID WILL (testate succession) or, if they do NOT write a will,
by operation of the state INTESTACY STATUTE (intestacy succession)
 TESTATE SUCCESSION
 Requirements for a valid will vary by state
 MOST require the will to be in writing, signed by the testator, and
attested by 2 witnesses
 *Exceptions:
o Uniform Probate Code – allows enforcement of an invalid
will which doesn’t meet these requirements as long as the
proponent can establish clear and convincing evidence that
the decedent intended the document to constitute a valid
will

o Holographic Wills – about ½ the states enforce holographic
wills (aka handwritten, signed, and unwitnessed) but
NOT in WA or OR
 It’s generally required they are in the testator’s
handwriting and signed by him
 UPC 2-502 only requires “material portions to be in
handwriting” i.e. it may be valid if the entire will is
not handwritten; this differs between jurisdictions
o Will Substitutes – many families use will substitutes (i.e.
joint bank and stock accounts, revocable inter vivos trusts,
pension accounts, and life insurance contracts)
o Signed by Notary – 2008 UPC allows will to be enforced
without witnesses if it is notarized, but only recognized in 2
states
o Videotaped – only recognized in 1 state, and must be video
recording, not just voice recording
 Washington Law
o RCW requires wills to be signed with 2 witnesses in order
to be valid
o There is a choice of law provision that is flexible towards
WHERE and WHEN the will was executed (i.e. you may
be able to use the probate laws where the will was executed
and/or where the testator was domiciled/resident when he
made the will)
INTESTACY SUCCESSION
 Every state has an intestacy statute which determines who inherits
property if someone dies without a valid will
 Only those who survive the decedent are entitled to succeed to the
decedent’s property by testate or intestate succession
 GENERAL PATTERNS
o Surviving spouse but no children/parents  entire estate
usually goes to spouse; some states split between spouse
and their children
o Surviving spouse and parents, but no children  some
give all to spouse; about half states split between spouse
and parents
o Surviving spouse and children
 Some give all to spouse
 Some split btwn spouse and children, giving a
portion to spouse (often 1/3) and rest to children



Stepchildren
 first $225k plus 1/2 of remaining balance go
to surviving spouse IF all dead person's
surviving children are also children of living
spouse AND spouse has other children not
related to dead person
 First $150k plus 1/2 of balance go to spouse
IF one or more of dead person's surviving
children are spouse's step children
o Surviving children and no spouse  generally split
equally between children
 If child dies before parent, child's share
automatically passes to her children
 When ALL children die before parent
 Per stripes – estate divided equally among
children, and then passed to grandchildren
and divided based on number of heirs in that
generation (aka "by line of descent or by
representation")
 Per capita – divided equally among each
grandchild (aka "by head")
States tend to follow this prioritization:
o Spouse > Descendants > Parents > Siblings
o i.e. Most statutes give greatest protection to the surviving
spouse (most frequently leaving the whole remainder of
estate to surviving spouse)
o RCW 11.04.015 Washington State follows this pattern and
gives most to spouse, and then considers the issue of
descendants
o Divorce = property acquired during marriage will be
equally distributed btwn the parties
JOINT TENANCY
o Joint Tenancy  common law developed this form of ownership where two or
more persons own the same property starting at the same time; A gives X to B&C
as joint tenants (by sale or as a gift)
 RCW 64.28.010 Each has an unequal and undivided right to use X
 SURVIVORSHIP
 If you give the property in JT, it gives an undivided half interest to
each tenant with survivorship


If either dies, the property automatically belongs to the survivor by
operation of law
 Survivorship occurs without regard to the will or probate estate of
the first joint tenant to die
 CONVEYANCE OF JOINT TENANCY cannot be revoked unilaterally
 However… it can be “severed” by an action inconsistent with one
of the 4 unities of time, title, interest, and possession – doing so
destroys survivorship, leaving B&C each holding half
 Converts the JT to a Tenancy in Common, TIC right then goes to
that person’s estate
o *Example of a non-probate way to transfer property
JOINT BANK ACCOUNT
o Joint bank accounts  more than one person owns and manages a single bank
account at the same time
 Some courts say each owner has a right to possess all the money & some
hold that each owner is only entitled to the portion of money they
deposited
 When owner of joint bank account dies, remaining money is owed by
surviving parties
 RCW 30A.22: Washington’s multi-party bank account statute which
permits joint bank accounts with or without rights of survivorship, agency
accounts, trust accounts, & payable on death accounts
 AT DEATH OF DEPOSITOR
o J with survivorship is treated like JT (unless there is clear
& convincing evidence of a contrary intent at time account
was created)
o Trust or POD account proceeds go to designated
beneficiary at death of depositor
o Both operate without regard to depositor’s will or probate
estate
o Joint bank account without survivorship is treated
 DURING LIFE OF DEPOSITOR
o If POD or trust account, funds belong to depositor while
he/she is living
o If J with OR without survivorship, funds belong to
depositors in proportion to net funds owned by each
(UNLESS there is clear and convincing evidence of a
contrary intent at time account was created)
o State v. Mora = woman opened bank account and added her
son + son’s wife as signatories; son and wife depleted all
funds in bank account; they were convicted for 20 counts of
theft because even as joint account holders they CANNOT
remove money that was not originally theirs, regardless of
their positions as signatories
*if son & wife had a good faith belief they were not
stealing the money, they might have had a better case

CONDITIONAL GIFT
o Generally, conditional gifts are not allowed because promises to make gifts in the
future are not binding  the gift occurs only when the actual transaction takes
place because “present intent to transfer” does not come into being until the
moment the condition is met
o HOWEVER…whether CG is enforceable depends on if it’s condition precedent
or condition subsequent
 CONDITION SUBSEQUENT – transfer of title that is revocable IF a
certain condition occurs (i.e. mom gives daughter car but will retake if she
gets in a wreck); usually allowed
 CONDITION PRECEDENT – transfer of title only AFTER a certain
condition occurs; usually NOT allowed
 Exceptions
o Engagement Rings
 Different jurisdictions treat differently the rights to
an engagement ring after engagement is terminated
 Usually NOT considered a true “conditional gift”
 some courts held ring may be kept because it
was given and accepted, title has passed, and giver
retains no interest in the ring vs. other courts require
return of ring if engagement is called off
 Walton v. Snow = former boyfriend brought action
against gf seeking return of engagement ring; court
found the donee of engagement ring in
contemplation of marriage IS permitted to retain the
gift if wedding does not happen so long as donee is
NOT at fault; boyfriend failed to establish girl was
at fault
*Restatement (3rd) of property 6.2 rejects the “fault
rule” – donor of ring has right to have ring returned
regardless of fault
o Gift Causa Mortis





Gifts given in contemplation of impending death 
it serves as an immediate transfer but is subject to
revocation if donor does not die
This is an exception to the general rule that inter
vivos gifts are not revocable
Same requirements as inter vivos gift to be valid +
must be made in contemplation of IMMINENT
death (actual life-threatening illness)
Scherer v. Hyland = Two people were living in a
committed relationship, when they were in a car
accident and severely injured. When they received
the insurance check, the woman committed suicide,
leaving a letter/note and her portion of the check
endorsed to her partner  the endorsed check was
treated as an inter vivos gift (specifically a gift
causa mortis); this case illustrates that gifts NOT
DELIVERED may be still be legally enforced IF
there is clear evidence of intent to transfer
In re estate of lamplaugh = donee of $80k check
drawn on donor’s bank account, uncashed at time of
donor’s death, brought claim against donor’s estate
to recover amount of check; court held gift of a
check was complete and became irrevocable at
donor’s death; UPC states that surviving
party/beneficiary/decedent’s estate IS LIABLE to
the payee of an unpaid request for payment
TRESPASS

RIGHT TO EXCLUDE
o Trespass law gives owners the right to exclude non-owners or exclude physical
objects that intrude on their property  this right protects exclusive possession
(ability to prevent others from using the property without the owner’s or
possessor’s consent) AND quiet enjoyment (right to enjoy property without
interference)
 An individual is able to assert their right to exclude on REAL PROPERTY
 This right can be waived 
 US v. Causby = The plaintiffs operated a chicken farm that was near an
airport. The noise from the airport made them give up their chicken
business due to the noise and vibration of the planes flying just above the
trees. The court held that the flights trespassed on the landowner’s usable
airspace
 *the right to exclude on real property only extends to the USABLE
airspace and soil space above and beneath the property
o TRESPASS  unprivileged physical invasion of property rightfully possessed
by another; trespass liability is generally absolute
 Possessor – those who exercise physical control over something with the
intent to exercise such control
 The law presumes that possessors have all the rights of the true owner,
THUS they have the right to exclude (everyone except the true owner)
o The right to exclude differs based on whether the property is private, shared, or
open to the public
 Private Property
 TRESPASS = ANY unprivileged entry constitutes trespass even if
trespasser did not intend to commit a trespass
o The cause of action associated with trespass is the primary
way to enforce the right to exclude (but others include
action for ejectment, unlawful detainer, conversion,
nuisance)
o Intentional trespass  Torts R.2d § 158 requires pltff to
show deft intended to enter pltff’s land OR caused a third
party to do so
 Applies to land and chattels
 NOT required to show that deft intended to violate
property rights: it’s irrelevant whether deft knew
she was trespassing
 Mistake is NOT a defense
 An innocent accident CAN be a defense if lacking
negligence, recklessness, or abnormally dangerous
activity
o License  permission to enter property possessed by
another and is generally revocable at will
 Shared Use or Possession
 Special rules apply when owner has agreed to allow others to enter
her property or has transferred possession of her property to
another (i.e. landlord and tenant)
o Tenants have the right to receive visitors absent a
contractual limitation to this right



o Ultimately – the contractual relationship between parties
will determine whether owner retains right to exclude OR
has transferred that right to the tenant/possessor
Public Accommodations
 All property owners who open their premises to the public have a
duty to serve the public
o The public has a right of reasonable access to all
business/facilities open to the public
o Owners have NO RIGHT to exclude people
unreasonably and have duty not to act in arbitrary or
discriminatory manner towards persons who come on their
premises
REMEDIES
o ONLY POSSESSORS are protected by trespass law i.e. those with present
possessory rights (includes owners & tenants, excludes holders of easements or
future interests)
 Possessors may sue the trespasser for…
 Damages
o Nominal: for trespass with no damage
o Compensatory: for actual harm caused by trespass to
property or persons on it
o Permanent: if fair market value of land is reduced
permanently
o Punitive: if actions of trespasser are sufficiently malicious,
oppressive, or rude
 Injunctive Relief – order for trespasser to cease intrusion in the
future
 Ejectment – when trespasser has physically occupied the property
 You CAN get damages for trespass even if there was no harm or injury
to the property (Jacque v. Steenberg Homes = no damage done to
property when deft towed mobile home across pltff’s field but pltff was
nonetheless awarded nominal trespass damages in amount of $100k)
LIMITATIONS ON RIGHT TO EXCLUDE
o The right to exclude is NOT absolute, there are exceptions which non-owners
have rights to enter property possessed by others without permission (most
significant limitation = right of access to public property)
 Consent  Entry is privileged if it is consensual or permissive
 Licensee – one who enters property with permission of owner;
consent may be explicit or implicit



Even as a licensee, refusal to leave after being asked to do so may
constitute trespass unless property owner violated her duty to serve
by excluding patron unreasonably
 Consent gained by FRAUD or MISREPRESENTATION
o Some courts permit fraudulently obtained consent
o Some courts consider this trespass
 Trespass can occur when deft's activity on the property exceeds
the scope of the invitation
o Consent to enter real property can be negated by a
subsequent wrongful act in excess or in abuse of the
authority to enter
o Example: issue of whether investigators who lie about
their intentions are "trespassing" when they enter public
places for purposes of getting info about the facility and use
it for news reports
o Food Lion v. Capital Cities/ABC = A producer of a TV
show used a false name and background for herself and
several others to get jobs at plaintiff’s supermarket, then
used hidden cameras to record employees without their
consent. The court found the supermarket legally
consented, but that consent was overridden because the
videotaping was not consented to. Thus, the trespass had to
do with the unconsented recording rather than the
fraudulently consented to presence
 Consent is REVOCABLE at the will of the landowner, UNLESS
there was an opportunity to revoke (and ask trespasser to leave) but
you chose not to do so
Estoppel  pltff will be precluded from pressing a trespass charge if
granting relief would be inequitable under the circumstances
 Example: giving permission to enter and then licensee invests
substantially in reasonable reliance on the license – THEN the
license becomes irrevocable
Necessity  non-owners are entitled to trespass to save lives, property
(land or chattels), or avert serious harm RS 2d §197
 Example: to prevent a fire
 Deft must show (1) they chose the lesser of 2 evils, (2) the acted to
prevent imminent harm, (3) direct causal relationship between
their conduct and the harm to be averted and (4) they had no other
legal alternatives

o Commonwealth v. Magadini = The Supreme Judicial Court
of Massachusetts ruled that a homeless man who repeatedly
entered private property during winter time to escape the
cold was entitled to try to convince the jury that necessity
justified the entries because he acted to prevent himself
from imminent harm
 HOWEVER … if one trespasses for necessity and does damage –
they are still liable to pay for those damages (but not for nominal
damages associated with trespass)
 Public Policy or Social Need  when significant public policies override
private interests in exclusive possession
 Intrusion is privileged if …
o Necessary for exercise of legitimate public authority (i.e.
lawful searches of property or entry by police officers in
hot pursuit of fleeing suspects)
o Owners has transferred possession to tenant and intrusions
are result of tenant's exercise of her own possessory rights
o It involves retained public rights that were not given over
to private ownership (i.e. public rights of access to beaches)
o Social need (i.e. doctor doing a home visit)
 Prescription  If a trespasser has possessed property openly for a
sufficiently long period without the owner’s permission, they may not
only have a defense to a trespass claim but may be effectively granted title
to the property through application of the doctrine of adverse possession
or prescriptive easement
DUTY OF CARE OWED TO TRESPASSER
o Traditionally – duty owed depended on whether they were invited or trespassing
 Rowland v. Christian = case which abolished categories that distinguished
duty of care owed between invitee, licensee, and trespass; ruled that duty
of care should be what is reasonable under the circumstances
 BUT… majority of states of don’t follow this precedent
o RS 3d §51
 The only duty a land possessor owes to flagrant trespassers is the duty not
to act in an intentional, willful, or wanton manner to cause physical
harm
 HOWEVER, land possessor has a duty to exercise reasonable care if the
trespasser appears to be imperiled and (1) helpless or (2) unable to protect
himself
ENCROACHMENT


ENCROACHING STRUCTURES
o Encroaching structure – any structure that intrudes onto neighboring property
constitutes a trespass whether it occurs beneath, above, or on the ground
 REMEDY
 Court can order removal of the object, or sometimes removal of the
whole building
 Relative Hardship Doctrine  most courts will deny injunctive
relief if expenditure has been substantial and invasion is minimal,
at least when the encroachment is innocent
o Alternative relief is a forced sale of land from true owner to
builder of encroaching structure
o If court allows owner to keep structure, court may order a
forced purchase of the structure to compensate builder and
avoid unjust enrichment
o Proctor v. Huntington = the defendant’s land was
incorrectly surveyed and they ended up constructing their
house encroaching on 1/30th of the neighboring property.
The court reviewed the cost of relocating the built house,
and decided that it would be in the financial interest of both
parties to order a forced sale so pltff could be compensated
 When encroachment is INTENTIONAL the court is more likely to
order removal
VEGETATION AND TREES
o Landowners have the legal right to engage in self-help to remove vegetation that
intrudes onto their property
 SCOPE OF REMOVABILITY
 Owners are permitted to remove overhanging tree branches,
invading shrubs or hedges, and even roots, especially if they
threaten the foundation of one’s house up to the boundary line
 Limitation
o Encroached people are NOT entitled to cut into the trunk of
the tree or remove the plant entirely if it is on the boundary
and may not injure it so severely that it dies unless it’s
threatening the structures on the land
 OWNERSHIP OF ENCROACHING VEGETATION
 Encroaching vegetation still belongs to the owner from whose
property the vegetation originates
 Many courts have held that overhanging fruits that fall into
neighbor’s property are still the property of the owner of the tree



AVIATION
o Generally, the public retained ownership of airways
 But … U.S. v Causby = regular flights over pltff's land was an
unconstitutional taking of property rights because it was so noisy that it
precluded owner's ability to use his property for normal living purposes
 Rule: “Flights over private land are not a taking unless they are so
low and so frequent as to be a direct and immediate interference
with the enjoyment and use of the land.”
POLLUTION
o Polluting land uses that inject smoke, sewage, chemicals, or other substances onto
neighboring lands are regulated by nuisance law, which provides relief for land
uses that cause substantial and unreasonable harm
o But courts allow trespass claims to brought in the context of polluting substances
only when invasion causes SIGNIFICANT harm to the land or persons on it
 Examples
 Pollution causes significant, actual damage to land (Chance v. BP
Chemicals = Plaintiff brought suit claiming defendant’s disposal
of hazardous waste byproducts was a trespass. They provided one
witness to say that the byproduct had migrated below the surface
of the properties of at least some members of the class actions. The
court found that they did NOT sufficiently show significant and
actual damages that were causally related to the hazardous waste
disposal)
 Intangible phenomena, like emitted electric/magnetic fields, which
pltff can show caused actual debris that invaded and damaged
neighboring land
ANIMALS
o Owners of animals are generally required to prevent them from entering property
possessed by others
 Most states impose an absolute duty on owners to prevent such trespasses
(thus use of reasonable care is not a defense)
 There is a distinction between pets, livestock, and wild animals – pet
owners generally not liable for trespassing pets
PUBLIC ACCOMMODATION

RIGHTS TO PUBLIC ACCOMMODATION
o Property owners who open their premises or facilities to the public and hold
themselves out as ready to serve members of the public for special purposes



They have NO RIGHT to exclude people unreasonably
They have a duty not to act in arbitrary or discriminatory manner towards
persons who come on their premises
FEDERAL AND CONSTITUTIONAL LAWS
o First & Fourteenth Amendment
 First Amendment prohibits congress from passing any laws abridging
freedom of speech – these free speech guarantees have been incorporated
into Fourteenth Amendment’s protection of liberty against deprivation by
state governments
 THUS  any form of “state action” that enforces trespass laws or
the right to exclude is unlawful IF if it infringes free speech rights,
but this does NOT extend to private accommodations
 Core element of freedom of speech is the right to speak in public
places
 SPECIFIC CASES
 Company-towns
o A private company that establishes a community with
streets, homes, and businesses and that is open to the public
in general cannot prevent individuals from distributing
literature on the sidewalks of the town (rule comes from
Marsh v. Alabama)
 Shopping Centers
o Malls and shopping centers and generally considered
“public spaces” but the invitation to go to the space has
scope  usually NOT subject to protecting free speech
right of access, unless the state constitution says otherwise
o Pruneyard Shopping Center v. Robins = high school
students protested UN at shopping center that prohibits
leafleting; court held this did NOT infringe on the student’s
free speech rights
 Private Universities
o Private universities are NOT state actors, so they are not
limited by the strictures of the First Amendment
o Under the state action doctrine, a private university could
prevent students from distributing leaflets ono the college
campus without running afoul of First Amendment rights
applicable to the state governments
 Unions
o The National Labor Relations Act (NLRA) protects the
rights of employees to form unions and engage in collective
bargaining
 THUS employers are statutorily limited from
excluding employees if the purpose of their
intrusion was to exercise rights to organize workers
into unions or engage in other collective actions
protected by federal labor laws
 National Labor Relations Board v. Babock &
Wilcox Co = the NLRA does not mean an employer
has to put up with picketing of hand-billing on their
property if the union has “reasonable alternative
means” to communicate with employees
o Interstate Commerce Act
 Prohibits common carriers from all forms of unreasonable discrimination,
not just discrimination based on race, religion and national origin
o Civil Rights Act of 1866
 Bans racial discrimination only in contractual and property transactions
 To prevail on this claim  pltff must show (1) he is a member of a
racial minority, (2) deft intended to discriminate based on race, and
(3) deft’s racially discriminated conduct violated public
accommodations access to contracts and property
 Potentially reaches private contract transactions, but likely does not reach
pre- or post- contract racial harassment
o Civil Rights Act of 1964
 Prohibits discrimination based on race, color, religion or national origin
in “any place of public accommodation as defined in this section”
 Classes of protected persons has not been expanded to include
gender, sexual orientation, etc
 HOWEVER state and local laws impose their own civil rights,
which vary in scope and can cover more broad areas than federal
law does
 Only applies to places that affect interstate commerce OR are supported
by state action
 INCLUDES
o Inns and Hotels
 Which provide lodging to transient guests
 Does not apply to multi-unit dwelling with less than
6 rooms for rent & is occupied by the owner as his
residence
 DOES apply to Airbnb
o Restaurants
 Any facility principally engaged in selling food for
consumption on the premises
o Gas stations
o Places of Entertainment
 Any motion picture house, theatre, concert hall,
sports arena, stadium, or other place of
entertainment
o Any establishment physically located within the premises
of the above listed establishments OR which hosts any of
the above establishments
 EXCLUDES
o Most retail businesses
o Membership organizations (i.e. private clubs)
o Virtual meeting “places”
o Religious organizations
o Americans with Disabilities Act
 Prohibits discrimination on basis of disability only  adds most kinds of
public accommodation that are not covered by the 1964 Act
 Applies to places of public gathering, sale or rental establishments
(i.e. bakeries, grocery stores, malls), service establishments (i.e.
banks, barbers & beauty shops, accountants, lawyers, healthcare)
public transportation terminals, places of public display or
collection (i.e. museums, libraries, galleries)
 Weird cases – Case law has ruled that this includes little league
teams and websites, but does not include the national collegiate
athletic association
 What qualifies as a disability
 A physical or mental impairment that substantially limits one or
more of the major life activities, a record of such impairment, or
being regarded as having such an impairment.
o Includes: alcoholism and imprisonment
o Excludes: sexuality and use of illegal drugs
 Exemption from compliance
 Retains exemptions from 1964 Act
 If the entity can demonstrate that taking such steps to ensure access
for disabled individuals (1) would fundamentally alter the nature of
the goods/services provided OR (2) would result in undue burden


because accommodations are not readily achievable or are
structurally impossible
BUT … Post-1993 construction MUST comply with ADA, it is
never eligible for an exemption
STATE LAWS
o Federal Public Accommodations do NOT prohibit discrimination based on sex,
sexual orientation, gender identity, etc
o However, these protections are sometimes provided by state public
accommodation laws
 RCW § 49.60.215 Provides Public Accommodation protection regardless
of race, creed, color, national origin, sexual orientation, sex, veteran or
military status, status as a mother breastfeeding her child, any disability, or
use of a trained dog guide/service animal by disabled person
 *Note that marital or family status is absent from the RCW
 Sex Segregation
 Usually allowed on privacy grounds when related to health (i.e.
showers, locker rooms, bathrooms)
 Living Well Inc v. Pennsylvania Human Relations Commission =
That a health club did not violate the state public accommodations
law when it excluded men. “Where there is a distinctly private
activity involving exposure of intimate body parts, there exists an
implied bona fide public accommodation qualification which may
justify otherwise illegal sex discrimination,” noted Judge
Pellegrini. A privacy right may be “recognized where one has a
reasonable basis to be protected against embarrassment or [would]
suffer a loss of dignity because of the activity taking place
 Religious Liberty
 Some states have passed legislation that are designed to give
owners of public accommodations the right to deny service to
customers if that would be contrary to the owner’s religious belief
o EXCEPTION
 State v. Arlene’s Flowers = held that a public
accommodation owner cannot claim religious
liberty/free speech as a reason to engage in
discrimination based on sexual orientation
 The Indiana Religious Freedom Restoration Act: Prohibited any
government entity, including a court adjudicating a private civil
lawsuit, from substantially burdening a person’s free exercise of
religion unless the government act furthered a compelling

government interest and was the least restrictive means of
obtaining that interest
PUBLIC TRUST DOCTRINE
o Certain bodies of water are not subject to private ownership but are impressed
with a “public trust” such that they must remain open to public rights of access
 Navigable Waters and Tidelands
 Illinois Central Railroad Co v. State of Illinois = The Supreme
Court affirmed that navigable waters are not subject to private
ownership but are impressed with a “public trust” and must remain
open to public for navigation purposes promulgated by congress
 Piers and Docks
 Owners have the right to construct piers to obtain access to the
waters for themselves or others, but they may not interfere with
navigation or injure the rights of the public to enjoy the waters
 RCW § 79.90.105 – Allows owners of residential property abutting
state-owned tidelands to install and maintain private recreational
docks on such lands free of charge
 Beach Access
 Because tidelands allow access, beach access laws allow people to
reasonably get to that space  This is usually done through
easements the government has with private property owners
 Gion v. City of Santa Cruz = The California Supreme Court upheld
public rights of access to the beachfront based on long established
public use. It found that the owner of the adjacent property had
impliedly “dedicated” the property to public uses by acquiescing in
public use
 Fishing Access
 The ability to fish is granted in the public trust doctrine
o Includes tribal fishing rights – tribes have special fishing
rights outside of the public trust that may, for example,
extend their fishing season or increase their number of
take-home catches
o Excludes shell-fishing
NUSIANCE

NUISANCE LAW
o Nuisance law  provides remedies for nontrespassory invasions of property to
protect the interest in use or enjoyment of one’s property


A nuisance is generally something physically offensive to the senses and
by such offensiveness makes life uncomfortable
 Liability will be found ONLY IF the harm is substantial and
unreasonable
 Nuisance law both limits and protects your right to use your property
o Land use regulation is a necessary component of property – it is achieved by
nuisance law, statutory regulation (i.e. zoning laws), and contracts
 Nuisance per se: An act, thing, omission, or use of property which of
itself is a nuisance and hence is not permissible or excusable under any
circumstance regardless of the reasonableness of the defendant’s conduct
 Bormann v. Board of supervisors = held that "right to farm" statute which
granted landowners immunity from certain nuisance claims by neighbors
was unconstitutional on the ground that one of the rights associated with
ownership is the right to be free from private nuisances cause by other
owners & that deprivation of this right constitute a per se taking of
property without just compensation
PRIVATE NUISANCE
o Private nuisance  a substantial and unreasonable interference with one’s use of
enjoyment of their land
 Can be brought by anyone who has an interest in the land – not just
owners or possessors, but also mortgagees and easement owners
 SUBSTANTIAL
 Harm is substantial if it’s offensive to the ordinary or average
person
 Relief will be denied to the unusually sensitive plaintiff
 UNREASONABLE
 The interference is unreasonable if the gravity of harm outweighs
the utility of the actor’s conduct
 Focuses only on the reasonableness of the consequences of the
conduct, not the conduct itself
 Factors considered:
o Gravity of harm
 Extent of the harm involved
 Character of the harm involved
 Social value that the law attaches to the type of use
or enjoyment being invaded
 Suitability of the particular use or enjoyment
invaded to the character of the locality
 Burden on the person harmed of avoiding the harm
o Utility




Social value of the primary purpose of conduct
Suitability of the violated use to the locality
Impracticability of preventing the violation
Liability
 Deft is usually another landowner/possessor, but courts have held
defts liable who were not possessors but substantially contributed
to the offensive land use
o Page county appliance center inc v. honeywell =
manufacturer of computer may be liable for nuisance
because it made the computer that emitted radiation and
harmed TV reception nearby
 Nuisance is deemed an INTENTIONAL WRONG even if deft did
not intend to harm the pltff  simply must show deft knew or
should have known his conduct would cause harm or was
substantially certain to do so
o DEFENSES
 Unusually sensitive plaintiff
 Jenkins v. CSX transportation = relief denied when pltff reacted to
fumes from railroad because pltff suffered an extremely rare
allergic condition; deft could not reasonably foresee his conduct
would be a nuisance
 Reasonable use for the area
 Public good
 Plaintiff came to the nuisance
 Artistic expression
o REMEDIES
 Injunctive Relief
 Grants pltff’s right to protection from harm
 HOWEVER… parties are free to renegotiate by contract and
offer the other party money to cease conduct or refrain from
complaining
o Exchange of entitlements takes place through bargains
between the parties
 Damages
 Awarded when land use is deemed unreasonable because effect on
pltff is one he should not have to bear, BUT social benefits of
conduct outweigh its costs  thus court compensates pltff with
damages but allows conduct to continue
o Boomer v. Atlantic Cement Co = court refused to grant
injunction shutting down cement factory worth $45M with

300 employees despite the air pollution it was causing;
instead awarded damages because social benefits of factory
outweighed its costs
 *Boomer approach is almost universal today; few
courts automatically grant injunctions
 Purchased Injunction
 Granting an injunction against deft IF pltff pays damages to
compensate deft for (a) lost profits caused by shutting down deft’s
land use, (b) costs of relocation, or (c) reduction in fair market
value of deft’s property caused by loss of right to engage in
offending activity
o PUT – pltff buys the right to be free from the nuisance
caused by deft’s activity
o Spur industries v. webb = court granted injunction shutting
down ranch on the condition that pltffs compensate ranch
owner for cost of relocation and/or lost profits; court held
the ranch IS a nuisance BUT grants a conditional injunction
against the ranch because Del Webb "came to the nuisance"
 Alternative  using economic analysis to determine whether
injunction should be granted; goal is to maximize social welfare
o Different measures of efficiency
 Fair market value – maximize the joint fair market
value of affected parcels
 Auction – asks which party would pay the most to
acquire it
 Status quo – assign entitlement to current owner &
ask whether non-owners are willing to offer enough
to induce owner to sell
 Redistribution – alter the existing allocations of
entitlement because they’re unfair
 Reverse auction – asks which party would ask the
most to give up the entitlement
 Social welfare – combine dollar amounts with
subjective consideration of magnitude, character,
and distribution of benefits/burdens of different
resolutions
PUBLIC NUISANCE
o Public nuisance  violation of a legal right common to the public as a whole or a
large number of the public


The doing/failure to do something that injuriously affects the safety,
health, or morals of the public OR works some substantial annoyance,
inconvenience or injury to public
 The conduct must have a permanent or long lasting outcome
o Usually brought by public officials
TYPES OF NUISANCES
o Frequent Cases
 Odors, air pollution, leaking gas tanks, water pollution, chemical
pollution, sewage treatment facilities or landfills, excessive light,
encroaching trees, noise
o Unusual Cases
 Unlawful drug activity = cases involving claims by neighbors against
landlords who allowed their property to be used by drug dealers;
controversial when landlord did not participate in activity; could also
constitute a public nuisance
 Landslides = split decisions on whether owners have obligations to take
reasonable steps to prevent natural conditions from harming neighboring
owners
 Stigma damages = proximity to a contaminated site; most courts deny
damages associated with the stigma of being near polluted land
 Coming to the nuisance = harder for pltff to prevail if she "came to the
nuisance"
 Apartment buildings = Euclid decision suggested that apartment buildings
might constitute nuisances and destroy the "residential character" of a
neighborhood
 Airbnb = neighbor to someone who opens their home to Airbnb guests
may have a claim for nuisance
 Street gangs = many cities have used public nuisance laws against gangs;
while such cases may promote safety, they pose dangers to civil liberties
(they allow state control of individuals without proof of involvement in
criminal activity)
WATER RIGHTS

SURFACE WATER
o When owners develop land and expel water onto neighboring property 
courts must determine whether this constitutes a violation of the rights of the
neighbor to be free from flooding damage caused by neighboring
o 3 RULES to deal with these conflicts:



(1) Natural flow – prohibits owners from discharging water in any way
other than through natural drainage paths; few states use this doctrine;
liability imposed for any interference with natural surface drainage pattern
that causes injury to another's land
 (2) Common enemy – WA follows this; grants each owner the privilege
to expel unwanted water in any way; no requirement to consider the
consequences to other landowners, rather every landowner has the duty to
protect their own property; many states have used modified version of rule
that prohibits damaging neighbor’s property by collecting water
 (3) Reasonable use (*the majority rule) – allowing water to be discharged
reasonably; does not allow substantial harm to be committed; similar
"reasonable use" test as used in the negligence standard
STREAMS AND LAKES
o Most disputes occur between competing claimants to water or competing uses of
it  lawsuits arise when one owner's use interferes with ability of other riparian
owners to use the stream
 Riparian owner = landowner who's land borders the body of water
 Use rights by riparian owners are NOT absolute
 Majority use "reasonable use" test similar to that of nuisance law
 Minority of states adopt the prior appropriation doctrine which
provides that the first user or developer prevails over a later user
(WA follows modified version of this with reasonable use limits)
GROUNDWATER
o Groundwater  collected in aquifers beneath the surface, useful for irrigation,
drinking, and power; surface owners may use wells to extract this water
 4 RULES to deal with these conflicts:
 (1) Reasonable Use – Most states adopt rules of law that require
underground water to be shared by placing limits on the ability of
surface owners to deprive their neighbors of access to groundwater; each owner is entitled to a reasonable amount
 (2) Free Use/Absolute Ownership Doctrine – Each surface
owner is free to withdraw as much water as he likes from beneath
the surface of his property without liability, even if it has the effect
of withdrawing water from underneath his neighbor’s property, so
long that it does not waste the water and that it is not done out of
spite
 (3) Correlative Rights test – property owners get rights to water
roughly equivalent to the percentage of land they own
 (4) Regulatory systems
SUPPORT RIGHTS & AESTETHICS


LATERAL SUPPORT
o Owners have the legal right to have their land supported laterally by their
neighbors land
 An excavation that removes support provided laterally to neighboring land
that makes the land fall in OR fails to support plants or structures on it is a
violation of the property rights of the affected owner
 This obligation is absolute – thus does not rest on a showing that deft
acted negligently
o Because this right gives owners the power to constrain how other owners use their
own land  it resembles a "negative easement"
 However, owners have NO duty to support structures on neighboring land
 Thurston v. hancock = defts only liable for harm to LAND but not
liable for harm to structure
 AMBIGUITY REGARDING liability for consequential harm to
structures
o Some courts hold that owners are immune from liability for
harm to neighboring buildings in the absence of negligence
o VERSUS other courts – modify this rule & impose liability
for harm to neighboring structure IF the harm was caused
by withdrawal of lateral support for the land on which the
structure sits
 There IS a general duty on all owners of land and construction to act
reasonably in excavating so as to avoid negligently withdrawing support
for a neighboring structure
o DUTY TO MAINTAIN RETAINING WALLS
 Klebs v. Yim = Klebs owns property above (5 feet higher) than Yim’s
property. Previous owner of Klebs’ property built the retaining wall on
Yim’s property + built a pool and deck on Klebs’ property. It rains; the
concrete retaining wall doesn’t hold; Klebs’ property is damaged. Klebs
sues Yim for not maintaining the retaining wall.
 Court decides that Yim had an obligation to upkeep the
retaining wall (even though he didn’t build it) to make sure that
Klebs’ unimproved property is supported
 BUT, the Court rules in Yim’s favor because Klebs failed to prove
that the wall would have collapsed if the land was unimproved i.e.
if the pool hadn’t been built
SUBJACENT SUPPORT


o Surface owners have an absolute right to subjacent support for their land
 In the absence of a contract to the contrary, owners of subsurface mineral
rights have an obligation to maintain support for the surface
 Those who withdraw subjacent support for the surface are STRICTLY
LIABLE for damage to the land in its natural condition
o Contention with groundwater rights
 Friendswood dev co v. smith southwest industries = issue was whether
deft was free to withdraw groundwater without liability or whether its
freedom was limited by the rights of the neighbors to subjacent support for
their land
 HOLDING: Rights to subjacent support trumped the free use rule
associated with groundwater, the court substituted a negligence test
for whether deft was liable for withdrawal of groundwater
LIGHT AND AIR
o Generally there is NO cause of action to protect your views or aesthetics
o Fountainbleau Doctrine  Absent a zoning law to the contrary, owners are free
to build in ways that interfere with their neighbor's interests in light and air
 EXCEPTION is that many courts will issue an injunction preventing an
owner from constructing or maintaining a "spite fence"
 Spite fence – constructed for the purpose of blocking the windows
of a neighboring owner and which confers NO discernable benefits
on the owner who wishes to construct the fence other than
enjoyment of annoyance to the neighbor
 RCW § 7.40.030 An injunction may be granted to restrain the
malicious erection of any structure intended to spite, injure, or
annoy an adjoining proprietor
 Potential Rising Exception
 Little caselaw, but there is a suggestion that properties with unique
reliance on light and air may be able to obtain an injunction
 Prah. v. Maretti = One court rejected Fontainebleau doctrine
because the plaintiff had solar panels on the roof of his house, and
his neighbor’s proposed building plans would obstruct the sun too
much for the panels to charge
ARTISITIC EXPRESSION
o Visible works of art cannot be nuisances
 Wernke v. Halas = Two neighbors don’t get along. One builds a non-spite,
spite fence and places vinyl and construction tape on the side facing the
other neighbor. Neighbor one builds a 10 ft pole and displays a plywood
toilet seat with a brown spot in middle to invoke excrement. No nuisance
because it was artistic expression
ADVERSE POSSESSION


DEFINITION
o Adverse Possessor  one who trespasses and thus obtains possession over
property for a statutorily prescribed period of time such that his possession
ripens into title
 Property can be acquired through adverse possession by individuals, cotenants, corporations, and governments
 The period of time required differs by jurisdiction
ELEMENTS
o Actual Possession
 Requires physical possession and ordinary use of the property evidenced
by conducting significant activities there
 Puts true owner on NOTICE that a trespass is occurring
 This can be established by:
o Building fence + visibly using land
o Building on land
o Living or conducting business on land
o Farming, clearing the land, planting shrubs
o Using the land in a manner typical of property in that area
and for which it is suited
o Occupying only part of the land that is described in a
defective deed
 IF the non-owner only preforms specific activities on the land, rather than
treating it generally as her own – she may be granted a prescriptive
easement instead
o Open and Notorious
 Requires possessor to exercise the kind of use the usual owner would
make of the land  such that invasion would be discoverable by a
reasonable inspection of the property
 Occupation must be sufficiently apparent so the true owner is put
on notice of trespass
 If NOT feasible for owner to discover the trespass – this
requirement is not satisfied
o Exclusive
 Requires that the possessor is NOT sharing with the true owner or the
public at large (i.e. record owner has been excluded from the land)

However – this does not prevent 2+ individuals from working together to
obtain title; doing so will afford them title as tenants in common
o Continuous
 Possession must be continuous throughout the statutory period BUT
this requires only the degree of occupancy and use that the average owner
would customarily make of the property
 Intermittent Period of Occupancy
o Usually not sufficient, UNLESS the land is normally used
in an intermittent manner (i.e. seasonal use to grow crops)
o Howard v. Kunto = Adverse possession was established
over a parcel of land used seasonably as a summer cabin
 Tacking
o An adverse possessor can satisfy the SOL period by adding
the period of time in which his predecessor adversely
possessed the property
o Most states require PRIVITY between the possessors
before the separate periods can be tacked together 
privity is satisfied if the subsequent possessor takes by
descent, devise, or deed purporting to convey title
 Tacking NOT permitted where one possessor ousts
(wrongfully kicks out) a preceding possessor NOR
where one possessor merely abandons and new
possessor then occupies
 Even oral transfer of possession can satisfy privity
o Adverse or Hostile
 Requires possessor to occupy the property without either explicit
objection or explicit permission from the original owner
 Depending on jurisdiction, this can be established by:
o Objective Test (*majority test)  all courts agree that
absent permission/objection, possession is presumed to be
nonpermissive; true owner must prove permission to defeat
claim
 If permission is given and then later withdrawn,
SOL starts when it is withdrawn
 If possessor is a family member, many courts
presume permission
 Objective test ignores user’s state of mind
o Intentional Dispossession Test  adverse possessor must
intend to oust the rightful property owner (i.e. knows the
land belongs to someone else and wants to take it anyway);

in such jurisdictions, an “honest mistake” made in good
faith does not lead to possession
o Claim of Right Test  obsolete test today; possessor
subjectively intends to use land to exclusion of all others
(i.e. believes the land is hers); can be satisfied explicitly or
implicitly by possessor’s conduct; in some jurisdictions this
will fail if possessor states they didn’t intend to displace
rightful owner
o Running of the Statute
 The SOL begins to run when the adverse possessor first exercises
possession over the true owner’s land (i.e. the point at which the true
owner could first bring suit)
 Many states toll SOL if the true owner was under some disability to sue
at the inception of the adverse possession
 Disability = being a minority, imprisoned, or insane at time when
cause of action first accrued
PROCEDURE AND EFFECT OF ADVERSE POSSESSION
o Jurisdictional Requirements
 DURATION
 RCW § 4.16.020 –The period prescribed for adverse possession is
10 years unless they have made claim and color of title in good
faith, in which case it is reduced to 7 years
 Ranges from 5 years (California, Idaho, Montana) to 40 years
(Iowa)
 Can vary based on if possessor paid property taxes, has "color of
title" or is in good faith
 COLOR OF TITLE
 Something in writing which purports to pass title but actually does
not do so + the claimant believes it to be valid title
o Possessor may be acting under the color of title either
because the original conveyance of title was defective or
the method in which was conveyed was defective
o Payment of property taxes can be good evidence of color of
title
 In Washington – the instrument being used to prove color of title
must sufficiently describe the property being possessed
o Procedure for asserting Adverse Possession
 As an affirmative action to quiet title by either the true owner or the
adverse possessor

As a defense or counterclaim to an action for trespass, quiet title, or
ejectment brought by the true owner
 Level of Proof Required  most states require “clear and convincing
evidence” while some only require a preponderance of the evidence
o Impact of Adverse Possession
 PRIOR ENCUMBRANCES
 Adverse possessors generally obtain ownership rights subject to
prior encumbrances, but some courts hold that property is gained
free of some or all encumbrances
o Mortgages  some courts hold that the mortgage is not
destroyed by adverse possession while others hold that
adverse possessors take property free of pre-existing
mortgages
 Fleming v. Watson = The court held that a
purchaser of property at a foreclosure sale is on
constructive notice of a competing claim if someone
other than the mortgagor is in possession of the land
o Future Interests  in most states, adverse possession
does not bar future interests in the property, unless there is
a state statute that allows holders of future interests to sue
to eject trespassers
 CLAIMS AGAINST THE GOVERNMENT
 Generally, adverse possession claims CANNOT prevail against
government property
o HOWEVER – many states have limited or abolished
governmental immunity from adverse possession
 If the property is not held for public use in a governmental
capacity, then it may be lost through adverse possession
 PERSONAL PROPERTY
 Personal property can be acquired through adverse possession
under the following rules:
o Conversion Rule
 SOL begins to run when the property is wrongfully
taken (converted) and the owner dispossessed of the
property
 Songbyrd, Inc. v. Estate of Grossman = when
Grossman took the actions and started making
recordings, he had converted the music property and
thus the assertion of ownership had taken place;
SOL doesn’t start until the property has been
converted
o Discovery Rule
 SOL begins to run only when the title holder
discovers, or reasonably should have discovered,
where the stolen property is located
 O’Keefe v. Snyder = The painter Georgia O’Keefe
sued a New York gallery owned by Barry Snyder to
recover three paintings stolen from her and
purchased by Snyder from a third party. The court
decided that because Georgia O’Keefe sued the
possessor within six years of discovering where the
paintings were, her claim should not be barred
o Demand-of-Return Rule
 A cause of action for replevin against the good faith
purchaser of a stolen chattel accrues when the title
holder makes a demand for return of the chattel and
the possessor refuses to return it
LICENSE AND EASEMENTS



General
o Permission to use the property of another can take the form of – license,
affirmative easement, negative easement, covenant, servitude
 These are all nonpossessory interests which grant the right to use land but
NOT the right to possess and freely enjoy the land
LICENSES
o License  temporary permission to enter the property of another that is revocable
at any point
 Commonwealth v. Lapon = A customer at a grocery store tried but failed
to convince the store manager that he was entitled to a free bottle of
detergent; court held that the store was entitled to revoke its implied
license to enter the premises
o Licenses are terminated at the transfer of servient estate
EASEMENTS
o DEFINED
 Easement  A permanent, non-possessory, and non-exclusive right to
use the land of another (affirmative) or to refrain from using the land in a
particular way that would otherwise be authorized (negative)

They are permanent UNLESS (a) the grantor expressly limits the
time or (b) the grantee relinquishes, abandons, or the easement
becomes impossible
 When express agreements are either silent or ambiguous, the law
creates an implied easement
o IMPLIED EASEMENTS
 Estoppel
 Created when a licensee significantly invests in reasonable reliance
on permission & revocation would be unjust
 Elements:
o (1) Permission to use land that is not your own – not
necessarily based on statements, but typically is
o (2) Licensee reasonably relied upon the permission in good
faith, resulting in a change in position (i.e. significant
changes or investment)
o (3) Owner should have expected or reasonably foreseen the
reliance
o (4) In SOME states only, an affirmative misrepresentation
by the licensor is also required
 Constructive Trust
o A constructive trust is an equitable remedy imposed by a
court that requires a property owner to use her property for
the benefit of another, or to grant the non-owner access, or
to transfer ownership/possession
o Will be implied whenever the circumstances are such that
the person holding legal title, either from fraud or
otherwise, cannot enjoy its beneficial interest AND THUS
wrongfully deprives the non-owner of some right, benefit,
or title
 Prior Use
 An easement may be implied by prior use when two parcels that
were once under common ownership get split up
 Elements:
o (1) Two parcels were at one time in common ownership
o (2) One of the parcels has derived a benefit or advantage
from the other parcel prior to the sale
o (3) The use was both apparent and continuous – “apparent”
means grantee could discover the existence of the use upon
reasonable inspection


o (4) Continuation of the use is reasonably necessary or
convenient to the enjoyment of the dominant estate
 Bubis v. Kassin = A developer of a seaside community prepared a
map prior to selling the lots, which showed roads leading from the
properties to the beach and included in the deeds a general
easement of access to the beach. The court ruled that the use of
streets drawn on the map that provide access to the beach and
ocean were “necessary or useful for the beneficial enjoyment of the
lots conveyed” and should be recognized as implied easements.
Necessity
 An easement may be implied when an owner of a tract of land sells
part of the tract; mainly applies to landlocked parcels
 Elements:
o (1) Tracts derive from a common owner
o (2) Dividing the tracts deprives one lot of access to a public
road or utility
o (3) Easement over the lot with access is necessary for
reasonable enjoyment of the land that lacks access
 Does NOT require prior use
 RCW 8.24.010 If a party requires an easement to access land, they
cannot be denied for private use
Prescriptive
 Easements acquired by means similar to adverse possession when
one uses property for statutorily prescribed period of time
 Elements:
o (1) Open & Notorious
o (2) Adverse and Hostile
o (3) Continuous – tacking permitted
o (4) For a statutory period
 DISTINCT from adverse possession, the use of land…
o Need not be exclusive
o May be shared by many members of the public at large, can
even be shared with the owner (i.e. beach access; using a
common driveway)
o In MOST states, use is presumed to be permissive,
leaving burden on non-owner to prove otherwise
 EXCEPTION – encroaching trees
o Most courts will not grant tree owners prescriptive rights to
have their tree branches hang over neighboring property, no
matter how long their trees have been intruding (Koresko v.
Farley)
 Prescriptive easements run with the land and are binding on
subsequent owners of the servient estate
o EXPRESS EASEMENTS
 Formal requirements for ALL express easements
 Elements:
o (1) Affirmative agreement
o (2) Signed writing which complies with statute of frauds
o (3) Identifies the person to be burdened + the person to be
benefitted
o (4) Articulates the purpose + description of the easement
 Easements generally hold up regardless of ownership
 The grantor of an easement may convey title of his land while
reserving the easement interest for himself
o BUT: Majority states hold that an owner may NOT reserve
an easement for a third party
 SCOPE
o Ambiguities will be interpreted in favor of grantee
o Intent of grantor helps determine scope
 Appurtenant
 Right of special use benefits the holder of the easement in his
physical use or enjoyment of another TRACT OF LAND
o Must be 2 tracts of land  dominant tenement (has the
benefit of the easement) and servient tenement (subject to
the easement right)
o Appurtenant easements run with the land IF they meet the
criteria below
 Elements:
o (1) Intent to run with the land, evidenced by language of
the agreement & surrounding circumstances
o (2) In writing
o (3) The owner of the servient estate purchased with notice
of the easement – notice can be actual, inquiry, constructive
 In Gross
 Right of special use benefits A SPECIFIC PARTY, independent of
his ownership/possession of another tract of land (thus there is no
dominant servient)
 Even if landowner sells their land, easement holder retains his right
of special use

Express Negative Easements
 Traditionally allowed for (1) light, (2) air, (3) lateral support, and
(4) flow of artificial streams  but today, light & air are often not
used in modern courts
 Restrictive covenants allow owners to get around limitations on
the kind of negative easements available
o TERMINATION OF EASEMENTS
 Easements are indefinite UNLESS terminated by:
 Agreement in writing
 Their own terms
 Merger – when both servient and dominant estate come to be
owned by the same person
 Abandonment – IF it can be shown that the owner of the easement
clearly indicated an intent to abandon through her words/conduct;
mere nonuse is not abandonment
 Adverse possession or prescription by the owner of the servient
estate or by a third party
 *Some states have “marketable title” acts which require rerecording easements (generally every 30-50 years) to be binding
on future purchasers
 CHANGES IN USE
 Usually requires consent, otherwise, basic changes in the nature of
the use is NOT allowed
o Brown v. Voss (1986) = B has easement for road across A’s
land. B buys additional parcel of land on the other side of
his land and begins to build new house in the middle of his
land. A sues B for extending the use of the easement to the
extra land that was not originally covered by the initial
easement; Court rules that B cannot extend the easement
without renegotiating with A.
 Beneficiary must maintain and repair easement
COVENANTS


DEFINED
o Covenant  a requirement imposed by one person on another to do or refrain
from doing something
 Real covenant – a promise affecting the use of land
ELEMENTS
o Real covenants run with the land if the following criteria are met:
 In writing
 Compliant with statute of frauds (but not required by a very small
minority of states)
 Can be by deed, title, maps, developer plans, recorded declarations
 Notice
 Purchaser of servient estate must be on notice of the covenant at
time of acquisition
 Can be actual, inquiry (purchaser asks about making a change), or
constructive (recorded somewhere purchaser could have found)
 A “general plan” may be enough to give notice, even if no actual
record exists, particularly if the parcels involved all belonged to
one entity/developer in the past
 Intent to Run
 Satisfied if parties expressly state intent OR if covenant is
ordinarily intended to run with the land
 A deed or lease that includes a restrictive covenant is sufficient to
show intent
 Privity of Estate
 Some courts require privity between parties involved
o Horizontal privity = between original covenanting parties
who share a simultaneous interest in the land independent
of the covenant (i.e. grantor-grantee, landlord-tenant,
mortgagor-mortgagee); can’t just be neighbors, it must be a
property relation
 *RS 3d & some jurisdictions use a “relaxed”
standard for horizontal privity, allowing
enforcement if benefit is held in gross and
beneficiary has a legitimate interest in enforcing
o Vertical privity = between promisor and successor in
interest, wherein the whole interest is conveyed
 *RS 3d abolishes the requirement for vertical
privity
 Touch and Concern
 Must “touch and concern” the land in that the covenant makes the
land itself more useful or valuable to the benefited party & must
diminish the landowner’s rights, privileges, and powers in
connection with her enjoyment of the land
o Negative covenant – must restrict servient holder in his use
of that land
o Affirmative covenant – must require servient holder to do
something, increasing her obligations regarding enjoyment
of land


INTERPRETATION
o Ambiguous covenants will be interpreted in a way least burdensome to the free
use of property
o Often interpreted against the drafter
o MAIN INQUIRY will be the intent of the grantor
TERMINATION OF COVENANTS
o Changed conditions
 A covenant will not be enforced if conditions have drastically changed to
the point where it no longer confers any substantial benefit to dominant
estates
o Relative hardship
 Courts may decline to enforce covenants which greatly harm with only
marginal benefits
o Conduct of the parties
 Covenant may be terminated by written release from the benefit holder, a
merger of the benefited and burdened estates, or condemnation of the
burdened property
 Covenants may have an election clause for termination by those involved
 Equitable doctrines may prohibit enforcement
 Unclean Hands – person seeking enforcement is violating a similar
restriction on his land
 Acquiescence – if benefited party acquiesces during violation of
the servitude (i.e. implied waiver)
 Abandonment
 Estoppel
 Laches – fails to bring suit within reasonable time
 Prescription/adverse possession
o Statutory regulation
 Some states may have marketable title regulations which abolish
covenants that have not been voluntarily renewed or re-recorded
o Violating public policy
 Covenants violate public policy if they are arbitrary, spiteful, or
capricious
 Racially restrictive covenants are unenforceable
 Shelley v. Kraemer = A black family bought a house in a
neighborhood with a Whites-only covenant. U. S. Constitution
cannot reach a private agreement not to sell to people of a certain




race, but State enforcement (via courts) of the covenant is
unconstitutional because it is a State action.
Placing unreasonable restraints on alienation (forbidding transfers of
interests or forcing sales) will be invalid if “unreasonable” as to the utility
and purpose of the restraint
Placing unreasonable restraints on competition
Covenants that are illegal, unconstitutional, or unconscionable are not
enforceable
SERVITUDE
o Equitable Servitude  granting the enforcement of a ‘covenant’ that does NOT
satisfy the formal requirements of real covenants
 Still requires the assignees of the burdened land to have NOTICE of the
covenant
 Privity is not required
 Enforced when it would be unjust to do otherwise
o Implied Reciprocal Negative Servitude
 Will be implied when there is land retained by a grantor and that land is
surrounded by lots restricted for the benefit of a common
development plan, but grantor does not expressly agree to restrict the use
of his land in the same way  he may be subject to an implied reciprocal
negative servitude
 Later grantees are similarly burdened IF they have notice of such common
restrictions or plan
 THIRD-PARTY BENEFICIARY DOCTRINE
 The benefit provided by the common plan is conveyed to buyers
who purchase BEFORE the restriction is in place IF the benefit
was intended for them
 The burden is NOT conveyed to buyers who purchase BEFORE
the restriction is in place (unless they agree to & are on notice to
restriction)
 Forster v. Hall = Hall bought a lot subjective to a restrictive covenant
against “mobile homes” and Forster bought a lot in the same development;
Hall requested the mobile home restriction to be removed from their deed;
Hall brought mobile homes onto lot but removed the wheels and tongues;
court held that there was an implied reciprocal negative easement based
on the common plan & implied obligations (105/113 lots had restrictive
covenant) thus their use of mobile homes was NOT permissible
PRESENT ESTATES



REAL PROPERTY OWNERSHIP
o Estate  the amount, degree, nature, and quality of a person’s interest in land or
other property
 PRESENT INTERESTS – come with fee simple estates & life estates,
which grant the exclusive right to use, possess, occupy, or transfer the
property right now
 FUTURE INTERESTS – arise when grantor conveys present rights of
ownership to grantee, but the deed states these rights will return to grantor
or a third-party upon happening of future event
o 2 ways this can go down
 (1) Holder of fee simple absolute estate decides to convey a lesser,
defeasible estate to a grantee  present interest goes to grantee while
future interest is held by grantor/third party
 (2) Holder of life estate decides to break up her larger estate into two parts
 the present interest associated with the life estate & the future interest
associated with a remainder or reversion
FEE SIMPLE ABSOLUTE
o Fee Simple Absolute is the most common form of title & broadest ownership
interest recognized by law “From O to A”
o Elements:
 Potentially infinite duration – does NOT terminate unless the owner dies
without heirs, in which case the property escheats to the state
 Freely alienable – can be freely transferred (by sale or gift) during
owner’s lifetime
 Freely devisable – interest is capable of being transferred by will;
anything you receive pursuant to terms of the will is known as a devise
 Freely inheritable – estate will pass to holder’s heirs if she dies without
will
 No accompanying future interest
DEFEASIBLE FEES
o Defined
 Defeasible fee simple estate  those that revert to the grantor upon
occurrence of a particular future event spelled out in the deed
 Each one is defined with reference to the specific corresponding future
interest the grantor retains
o Fee Simple Determinable (FSD)
 A present estate which terminates automatically upon the occurrence of a
stated condition and full ownership is returned to the grantor
 RIGHTS
o Freely alienable, devisable, & inheritable BUT always
subject to that condition
o Not subject to waste doctrine
 FUTURE INTEREST
o Possibility of Reverter  estate automatically reverts back
to grantor upon occurrence of stated condition
o This interest is freely alienable inter vivos OR by will &
descends to owner’s heirs if she dies intestate
o ***if grantor does not assert rights, present possessor may
regain ownership through adverse possession
 LANGUAGE REQUIRED
o Must use specific durational language
o From O to A … “So long as,” “while,” “during,” “until,”
“unless,” [insert condition]
o Fee Simple Subject to Condition Subsequent (FSSCS)
 A present estate in which grantor retains the power to terminate the estate
of the grantee upon the happening of a specific event
 RIGHTS
o Freely alienable, devisable, & inheritable
o Not subject to waste doctrine
o KEY – when specified event occurs, estate of grantee
continues until the grantor exercises her power of
termination by bringing suit or making reentry; thus
forfeiture is NOT automatic
 FUTURE INTEREST
o Right of Entry  allows grantor right to exercise her
power of termination; aka “right of reentry” or “power of
termination”
o This interest is divisible and descendible BUT cannot be
transferred during the owner’s lifetime
o Owner may waive this right by express agreement or by
conduct (mere failure to assert does not constitute waiver)
o ***SOL for adverse possession does not start until holder
of future interest asserts her right of entry or brings action
for ejectment
 LANGUAGE REQUIRED
o Must use clear, durational language + clear statement of
right of reentry

o From O to A … “on the condition that,” “provided that,”
“but if,” [insert condition] then grantor reserves the right of
reentry
o Fee Simple Subject to Executory Limitation (FSSEL)
 A present estate which terminates automatically upon the occurrence of a
stated condition and full ownership is transferred to a third party
 RIGHTS
o Freely alienable, devisable, & inheritable
o Not subject to waste doctrine
 FUTURE INTEREST
o Shifting Executory Interest  estate automatically reverts
to the third party upon occurrence of stated condition
o This interest is freely alienable inter vivos OR by will
o ***Subject to the Rule against Perpetuities
 LANGUAGE REQUIRED
o Must use specific, conditional language + state the third
party
o From O to A … “on the condition that,” “provided that,”
“but if,” “unless” [insert condition] then to B
 Common Examples
 Conveyances to become possessory at some point in the future
 Options to purchase
 Right of first refusal/preemptive rights
LIFE ESTATE
o Life Estate  present possessory estate that lasts for the duration of the grantee’s
life OR the life of a third party (aka life estate pur autre vie); upon the end of the
measuring life, title reverts to the grantor or specified remainderman
o Life Tenant  holder of the life estate
 RIGHTS AND OBLIGATIONS
 Life estate is NOT devisable NOR inheritable
 Estate is fully transferable during the life of grantee (interest
transferred will only last for life of original grantee/third party)
 Right of possession
 Right to all rents and profits during possession
 Right of alienation (right to lease, sell, & mortgage property)
 Pay ordinary taxes on land and interest on mortgage – *duty
limited to the actual or potential income the life tenant may realize
from the property
 CANNOT do anything that would injure the interests of the person
holding the remainder or reversion; otherwise future interest



holder is permitted to file suit OR enter/change property as
necessary to protect his interest
DUTY NOT TO CREATE WASTE “Waste Doctrine”
 The future interest holder may sue for damages if life tenant
creates:
o Affirmative Waste = voluntary waste resulting from overt
conduct that causes a decrease in value of the property
o Permissive Waste = allows property to deteriorate through
neglect, failure to preserve the property, failure to
reasonably protect the property
o Ameliorative Waste = engaging in acts that enhance
property’s value unless all future interest holders were
known and consented; however most courts don’t hold life
tenant liable for this
LANGUAGE
 Duration measured by life of grantee  “From O to A for life”
 Duration measured by life of third party  “From O to A, for the
life of X”
TRUSTS
 Life estates are most common in trusts where a trust beneficiary
might be given use of house for life OR given the right of income
generated by the trust property for life
 Trustees = manage property for the benefit of another; trustees
hold “legal title” while the beneficiary holds “equitable” and/or
“beneficial” title
FUTURE INTERESTS

TYPES OF FUTURE INTERESTS
o Reversion – held by grantor following conveyance of life estate or FSA;
*subject to the Rule Against Perpetuities
o Possibility of Reverter – held by grantor following conveyance of FSD
o Right of Reentry – held by grantor following conveyance of FSSCS
o Remainder – held by any third party that is not the grantor/grantee;
*Blossoms into a present interest upon the natural expiration of its corresponding
possessory estate (i.e. life estate or estate for years; a remainder CANNOT follow
a fee simple of any kind)
 (1) VESTED REMAINDER  an interest NOT subject to any
conditions precedent to possession + created in an ascertainable grantee
who is identifiable and alive

Absolutely Vested: the class of grantees will not change
o “From O to A for life, then to C and his heirs”
 Vested Subject to Open: the class of grantees may increase or
change
o “From O to A for life, then to A’s children as they turn 18”
If A has 3 children upon her death, the child over 18
receives a VRSO because the interest will be shared
when/if two younger siblings turn 18. As soon as one
member of the class may collect his share (here, it’s the
child over 18), the class closes
o “From O to A for life, then to C’s children” Since a closing
date is omitted, the class closes when any member attains
possession, which would be at A’s death
 Vested Subject to Divestment: some subsequent event will
completely divest the remainder interest and grant another party
executory interest
o “From O to A for life, then to C; but if C has no children,
then to D’s children” C has a VRSD because if he has no
children upon death of A, his interest is divested and
transferred to D’s children (D’s children theoretically hold
an executory interest which will vest if C has no children at
A’s death)
 (2) CONTINGENT REMAINDER  an interest EITHER subject to
condition precedent to possession OR created in an unascertainable
grantee or both
 Occurs when beneficiary is unknown OR the known beneficiary is
subject to a condition that has not yet occurred
 CR vests (comes into being) when the issue is solved *subject to
the Rule against Perpetuities
 “From O to A for life, then to C’s heirs” If C is alive at A’s death,
C’s heirs cannot be ascertained since a living person has no heirs.
 Destructibility – contingent remainders are NOT destroyed if the
preceding life estate terminates before the contingency is fulfilled
o “From O to A for life, then to C when she turns 21” if A
dies and C is not yet 21, this will NOT destroy the
contingent remainder held by C. Rather the CR becomes a
springing executory interest, possession reverts back to O,
who holds the property in FSSEL until C turns 21
o Executory Interest – held by any third party that is not the grantor/grantee;
*Blossoms into a present interest by cutting short its corresponding possessory



estate (i.e. a fee simple or defeasible estate) contingent upon the occurrence of
some event
 (1) SHIFTING  at happening of event, grantee’s interest is divested and
his estate shifts to someone else
 “From O to A, but if C returns from Paris then to C” A has a
FSSEL while C has a shifting executory interest
 (2) SPRINGING  divests interest of grantor OR fills gap in possession
in which estate reverts to grantor
 “From O to A for life, one year after A’s death to C and his heirs”
A has a life estate, O has a one-year reversion which acts as a
FSSEL, and C has a springing executory interest
 Note ~
 Executory interest vests when the relevant condition is satisfied
*subject to the Rule against Perpetuities
AMBIGUITIES IN CONVEYANCE
o Presumption against forfeitures  In cases of ambiguity as to the nature of a
grant, courts prefer to presume the grant was not subject to restrictions because
they hate imposing conditions on free land use
 Present estate preferred to future interest
 Fee simple absolute preferred to defeasible fee
 Defeasible fee preferred to life estate
 FSSCS preferred to FSD
 Fee subject to a covenant preferred to a defeasible fee
 Fee with unenforceable precatory language preferred to fee subject to a
real covenant
o Modern courts may first look to the grantors intent before presuming against
possibility of forfeiture (particularly if the intent seems to be creating a future
interest)
TRANSFERABILITY OF FUTURE INTERESTS
o In most jurisdictions, remainders (both vested and contingent) and executory
interests are transferable 
REGULATORY RULES
 Fee Tail
o Freehold estate that limits the estate to the grantee’s lineal blood descendants
by specific words of limitation (i.e. “heirs of the body”)
o Fee tail estate has been ELIMINATED in most states because it is treated as a
fee simple absolute
 Term of Years
 Restriction on New Estates
o General restriction against creating new kinds of estates


o Numerus Clausus Principle  the idea that the number and content of
property rights is limited and the parties’ autonomy when contracting such
rights cannot go unfettered
 Johnson v. Whinton = Conveyance to “Sarah A. Whinton and her heirs
on her father’s side” was construed as a fee simple absolute on the
ground that it violated public policy to create an estate that would
descend on to the grantee’s heirs on one side. The meaning of the
estate was not clear if it was an attempt to create a kind of fee tail, or if
it was merely an attempt to limit the class of persons eligible for
inheritance.
Unreasonable Restraints on Alienation For Transfers or Sales
o Void if: Forfeiture restraints on alienation that completely prohibit transfer are
almost certainly void when attached to fee simple interests
o Upheld if: Attached to life estates, leaseholds, or charities’ future interests or
present estates
o Partial Restraints (e.g., time limitation during which the restraint exists or
identification of a limitation class of people to whom the property cannot be
transferred): Sometimes upheld, so long as they serve a legitimate purpose
Other Restraints
o Racial restrictions
 Courts have held that no state action is involved when a racially
restrictive condition is violated and an automatic possibility of reverter
or executory interest is triggered
o Restraints on marriage
 Restraints on marriage are generally void unless the dominant motive
of the transferor is to provide support until marriage
 Shapria v. Union National Bank = A bequest was left to the deceased’s
son only if he were married to a “Jewish girl.” IF he were not already
married to a Jew, then he would get the bequest only if he married to a
Jew within seven years of his father’s death. The court upheld the
restraint on the ground that it did not unreasonably restrict his ability
to marry.
o Public policy
 As per usual, future interests that violate public policy are void
o Judicial sale of property subject to future interests
 Petition may allow for the sale of a property held in future interest if
the life estate owner experiences hardship
RULE AGAINST PERPETUITIES


RULE
o Invalidates future interests that are not certain to “vest” within the lifetime of
someone who is alive at the creation of the interest or no later than 21 years after
their death
 VEST  an interest becomes vested when the condition that made the
future interest contingent or uncertain to come into being occurs
 The interest need not vest in possession
o Executory Interest = vests at the moment the contingency
occurs; at this moment the future interest becomes
possessory
o Contingent Remainder = vests when the relevant condition
disappears
 MEASURING LIVES  can be one or more measuring lives provided
that they are somehow connected with the vesting of an interest; animals
and organizations cannot be used; the number of measuring lives must be
reasonable
o Violation of RAP only invalidates the future interest, not the transferred present
interest
ABOLITION AND REFORM
o Most states have either abolished or modified the rule
 Uniform Statutory Rule Against Perpetuities
 Adopted by half the states
 Exempts ALL commercial transactions from the rule i.e. it is
limited to only donative transfers
 Imposes an alternative 90 year vesting period
 “Wait and 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
o Essentially, it means  before jumping to any conclusions,
wait for the relevant measuring life to run its natural course
and then reevaluate the circumstances at the death of
measuring life
 RCW 11.98.130 Washington has a 150-year “wait and see” period.
However, if the gift complies with common law rule against
perpetuities, you do not need to wait 150 years. But this only
applies to trusts, and does not exempt commercial transactions
 Cy Pres



Court reforms the future interest (if it violates the common law
RAP, or the “wait and see” version applicable in the state),
eliminates the illegal contingency, and orders a disposition of the
interest as close as possible to grantor’s original intent
o Today, most contingent future interests are created in trusts and trustees can
exchange assets in trust portfolios notwithstanding contingencies, so problem that
created the rule is mostly gone
APPLICATION OF RULE
o APPLIES TO
 Executory Interest
 Contingent Remainders (jurisdictional)
 Options (even commercial options, unless state has adopted USRAP)
 Vested Remainders Subject to Open
o DOES NOT APPLY TO
 All interests in the grantor
 Reversions
 Possibility of Reverter
 Right of Entry
 Charitable Trusts Interests
 Immune from rule when both the present and future interests are
held by charities
o HOW TO AVOID
 Do not depend on the “wait and see” principle
 Write a default clause in your instrument that will cause a contingent
future interest to vest within the required time period
 Expressly reference people whom you can prove were alive at the time the
gift was created
COMMON RULE VIOLATIONS
o No limit on Executory Interest
 An executory interest that follows a defeasible fee, with NO TIME LIMIT
within which it must vest, violates RAP
o Options and Rights of First Refusal
 Depends on jurisdiction, some apply RAP but some don’t
 Option – if structured so that it MIGHT be exercised later than end
of Rule’s period, it is generally void
 Right of First Refusal or “preemptive right” – not applicable in
most states because they are usually not assignable
o Age Contingency beyond 21 in Open Class
 A gift to an open class conditioned upon members surviving to age beyond
21 violates RAP
o Unborn spouse
 If an interest following a widow’s life estate cannot vest until the widow
dies, then it violates the rule
o Unborn Children
 A woman is conclusively presumed to be capable of bearing children
regardless of her age/medical condition
 If RAP is applicable, it should be extended to 21 years and 9 months to
accommodate men that may have impregnated someone right before death
CONCURRENT OWNERSHIP


DEFINED
o Concurrent Estate  aka co-tenancy; ownership or possession of real property by
two or more persons simultaneously
 During the life of the co-tenants – each tenant has an equal & undivided
right to use the whole, but must share this right with others
 At death of a co-tenant – joint tenancy & tenancy by the entireties
become property of the surviving tenants by operation of law without
reference law of wills or intestacy; tenancy in common property becomes
part of the probate estate of deceased tenant
o May apply to both residential and commercial property
TENANCY IN COMMON
o Tenancy in Common  any concurrent ownership in which 2 or more persons
own the same property at the same time
 Dispersal of Interests
 Each tenant owns the right to possess or use the entire property
 Ownership interest of each tenant is a fractional share, but not
necessarily equal
 A tenant’s interest is alienable, inheritable, devisable for his
fractional share only (or some lesser interest)
 No right of survivorship
 Requirements to Create
 (1) Intent to create this type of estate
 (2) Compliant with – statute of frauds, law of gifts, law of
wills/trusts, law of contracts, or any applicable statutes
 If conveyance is AMBIGUOUS?
o Most states presume the intent was to create TIC rather
than a JT
o Exception = something that appears to be a class gift is
almost always interpreted as a JT given unclear conveyance

JOINT TENANCY
o Joint Tenancy  2 or more persons own property with right of survivorship
 Dispersal of Interests
 At death of a joint tenant, interest terminates and automatically
disperses equally among surviving joint tenants
 All tenants must have an equal share (except for some states not
requiring equal shares)
 Each tenant’s interest is alienable but NOT inheritable nor
devisable
 Requirements to Create
 Traditionally, needed the Four Unities
o (1) Created for all co-tenants at the same time
o (2) Title must be for the same property & valid for all cotenants
o (3) Interest must be equal
o (4) Each has the Right to Possession
 Today…
o Magic words “joint tenancy,” “jointly w/ survivorship”
“co-tenancy w/ survivorship” generally sufficient in most
jurisdictions to show intent
o Survivorship language not required BUT very helpful since
the presumption is against survivorship
o RCW 64.28.010 Washington joint tenancy statute; JT only
created when it is written + expressly declares the interest
is meant to be a “joint tenancy” + identify tenants
 Severance
 Transfer of interest
o A joint tenancy is SEVERED if one of the joint owners
transfers her interest during her lifetime, which converts
the interest into a Tenancy in Common
 Tenant can convey to friend who conveys it back; in
a few states tenant can convey to herself
 A conveyance by ONLY ONE of more than 2 joint
tenants does NOT destroy the joint tenancy between
the remaining tenants
 Unilateral severance is permitted without consent
from other tenants
 Secret Conveyances




o Some states prohibit conveyances from severing joint
tenancies unless they are recorded so that all joint tenants
are aware of the possible severance
Mortgages
o A joint tenant may grant a mortgage interest in the JT
property to a creditor
 In lien theory states (*majority) – mortgage is only
a lien and does NOT sever JT absent a default and
foreclosure sale
 In title theory states (minority) – mortgage severs
title
o Walsh v. Reynolds = Two women who were domestic
partners purchased property in Federal Way expressly
taking title as joint tenants with right of survivorship.
However, one of them took out a mortgage on the property
solely in her name. Court held the parties never became
joint tenancies because one of them was never liable on the
mortgage
Leases
o Split decisions when one joint tenant leases his interest
 Some states say lease severs JT
 Others say lease merely temporarily suspends joint
tenancy which resumes upon expiration of lease
 Tenhet v. Boswell = A joint tenant,
Raymond Johnson, leased his 50 percent
interest to defendant Boswell without
informing his co-owner, Hazel Tenhet. The
court held that the lease did not sever the
joint tenancy
o At death, survivorship rights WILL terminate an existing
lease
Simultaneous Death
o If joint tenants die simultaneously, courts treat their
interests as if they own TIC  each owner’s proportional
share will be inherited by her heirs or devisees
Murder
o Split decisions when joint tenant intentionally kills the
other
 Some say murder automatically severs JT
 However, the First Restatement of Restitution,
suggests that the murderer is only entitled to 50% of

the profits of the property for his lifetime and on his
death the entire 100% of the estate should go to the
heirs of the murdered joint tenant
TENANCY BY THE ENTIRETIES
o Tenancy by the Entireties  a joint tenancy between married persons with a
right of survivorship; only recognized in 24 states, not recognized in community
property states
 Dispersal of Interests
 Must be equal shares
 Joint tenants must be married at time deed is executed or
conveyance occurs
 Individual interests cannot be transferred without consent of both
parties
 Individual interests cannot be reached by the creditors of one
spouse
 Partition is unavailable as a remedy for owners who cannot agree
about what to do with the property
 Severance
 Can only occur through divorce
 No unilateral severance allows
RIGHTS AND OBLIGATIONS OF CO-TENANTS

PARTITION
o Partition  the breakup plan, dissolution of the joint tenancy; divide up the
concurrent estate into separate portions representing proportionate interests of
owners of property
 When co-tenants cannot agree on how the property is to be used, the
main legal remedy is partition
 *However – partition may be limited in property that’s subject to future
interests
o TYPES OF PARTITION
 Voluntary Partition
 Owners voluntarily partition the property by dividing it physically
or selling it and sharing the proceeds based on fractional interest
 Involuntary or Judicial Partition
 Owners can force other co-tenants to a partition by bringing a
lawsuit against them
 Physical Partition



A co-tenant may go to court for an order that will result in the
physical division of the property
 In most states – physical partition is preferred to partition by sale
 Partition by Sale
 A forced sale of the property and division of the proceeds among
the owners
o Agreements NOT to Partition
 Co-owners often agree not to partition jointly owned property.
 Many courts uphold these agreements, but only if they are “reasonable”
(Reasonable = only for a reasonable time or limited to reasonable duration,
such as the time permitted by the rule against perpetuities)
JOINT MANAGEMENT
o Each owner has an equal right to manage or control how the property is used
CONTRIBUTION FOR REPAIRS AND MAINTENACE
o Split decisions on whether cotenants have a duty to contribute to expenses for
maintenance of commonly owned property
 No Obligations Absent Agreement
 Some courts hold that co-owners have no enforceable obligation
to pay for repairs to the property, absent an agreement between the
co-tenants for them to do so
 Obligations for Necessary Repairs
 Other courts hold that co-owners are obligated to share the costs of
the “necessary” repairs
 No Obligations for Major Improvements
 All courts agree that co-owners have no obligation to contribute
to the cost of major improvements unless the parties have
previously agreed to share those costs
 However – an owner who contributed more than her share to
substantial improvements is likely to be awarded a greater
proportion of the proceeds if the property is sold pursuant to a
partition
 Contribution from Tenants Not in Possession
 Some authorities state that a tenant who is occupying the property
cannot obtain contribution from tenants who are not living in
or occupying the premises for necessary repairs
 Alternatively, they assert that when a co-tenant in possession sues
the non-occupying co-tenants for contribution to expenses of repair
or maintenance, the claim should be offset by the value of his or
her use of the property which has exceeded his or her proportionate
share of ownership


Tax and Mortgage Costs
 Co-owners are obligated to share costs of taxes and mortgages
payments they have jointly assumed
 However – cotenants are NOT liable to share cost of mortgage
incurred by fellow cotenant on only her fractional interest NOR
taxes assessed against one fractional interest
RENTAL BENEFITS & OBLIGATIONS
o If the property is rented out, co-owners have the right to share the rental income
in proportion to their respective fractional ownership interests
 However, if one owner rents her interests without first obtaining consent
of the others, they are free not to join in the lease and retain their
possessory rights, including their right to lease their fractional interests
o NO DUTY TO PAY RENT
 Majority of states hold that owners who choose to occupy commonly
owned property have no obligation to pay rent to their co-owners who
chose not to occupy the premises
 EXCEPTION
 Ousting Doctrine  all states agree that rent is due if tenant in
possession has ousted the other tenants by preventing them from
occupying commonly owned property
 An ouster can be accomplished only by such conduct as is
sufficient both to exclude the non-occupying tenants and to
communicate to them an intent to do so
o Physical Impracticability
 Some courts hold that constructive ouster is may be
shown if it is physically impracticable for all
owners to occupy the property because it is too
small
o Emotional Ouster
 Co-owners argue that they are entitled to rent under
the constructive ouster doctrine because they could
not get along with their co-owners and thus have
been effectively excluded from jointly owned
property
 TEST for determining whether ouster was present
was whether the tenant in possession had excluded
the one who left or if the one who left did so
because of perceived emotional hostility
 Olivas v. Olivas = After a husband and wife
separated, he moved out of the house. The property
division between the two was not finalized until 3
years later. The court adopted the constructive
ouster doctrine and held that “when the emotions of
a divorce make it impossible for spouses to continue
to share the marital residence pending a property
division, the spouse who –often through a mutual
agreement –therefore departs the residence may be
entitled to rent from the remaining spouse”


LEASING
o The majority of courts hold that tenants by entirety SHOULD NOT be allowed
to lease the property without the consent of all the owners
o Courts uniformly reject this approach with regard to tenancies in common and
joint tenancies
o Kresha v. Kresha = Without consulting his wife, a husband leased his fractional
share of the property to the son for a period of six years. Applying the majority
rule, the court held that the husband was within his rights to lease his interest
without the consent of his co-owner, and it made no difference that they were
married. In addition, the court held that the lease survived the divorce, relegating
the mother to partition as the only remedy
ADVERSE POSSESSION
o Because co-owners have the right to possess the whole, no adverse possession
claim can exist unless one of the owners effectively ousts or excludes the others
COMMON INTEREST COMMUNITIES

CONDOMINIUMS AND HOMEOWNERS ASSOCIATIONS
o RS 3d merges the law of condominiums and HOA’s into a common legal
structure, defining them as “common interest communities”
 Condominium  individuals own their units or apartments in fee simple
and own common areas, such as stairways, the rooftop, and the exterior of
the building as tenants in common
 Homeowners Association  nearly identical to condominiums, however
it is often the association itself (a separate nonprofit corporation) that
owns the common areas, rather than the homeowners; all other principles
mimic that of condominiums
o RULES FOR DEVELOPER
 Declaration

Developer is generally required to write a declaration establishing
the creation of a condominium which defines:
o (1) ownership shares of the unit owners
o (2) the way the governing board is elected and both its
powers and powers of association
o (3) ways in which the declaration can be amended
 Duty to Relinquish Control
 When developer retains control of the association due to unsold
units – the restatement provides that developer has a duty to
relinquish control after a reasonable marketing period
 Management Contracts
 Restatement allows an association to repudiate any contracts
entered into when the developer was in control of the association
 Repudiation can happen in different ways, depending on state
statute
o Supermajority vote, such as two-thirds
o Invoking the Condominium and Cooperative Conversion
Protection and Abuse Relief Act, which gives associations
the power to terminate management contracts of more
than 3 years created when developer had majority control
(but the association must exercise this right within two
years of the developer’s relinquishing control of the
association or after the developer ceases to own 25% or less
of the units, whichever happens first)
o RULES FOR TENANTS
 Restraints on Alienation
 Restraints on alienation generally enforceable unless they are
unreasonable – most common types of restraints are:
o Requirements that the governing board consent to the sale
of a unit
o Rights of first refusal held by association itself
o Restrictions on leasing
 Implied Right to Taxing Powers
 If the developer has not made any provision for the management of
the commonly owned property, some courts have held that there is
an implied right in the owners to create a community association
with the power to have members pay management dues, pay for
the maintenance of the property, or enforce reciprocal covenants
 Retroactive Limits on Leasing


Most courts allow declaration to be amended retroactively to
prohibit leasing
 Amend the Declaration
 Amendments often require supermajority/two-thirds vote
 However, if the amendment materially changes the use of
individually owned property units or the allocation of voting rights,
they may need a unanimous vote
 RCW § 64.34.264 – The condominium board needs a 67% vote in
order to amend the association declaration
 Power to Make Rules
 Association has power to make rules regulation use of common
areas and even conduct inside individual units that effects other
owners SO LONG AS THEY ARE REASONABLE
 Unreasonable rules are usually overly intrusive or not related to
protecting legitimate interests of the neighbors
o Restatement requires rules regulating in-unit conduct to
be limited to activities that interfere with use or enjoyment
of neighboring units (i.e. nuisance like activities)
o However, other courts follow the “business judgement
rule” in which all rules should generally be upheld as long
as the action was taken in good faith to further the
legitimate interests of the association (UNLESS there is
evidence of misconduct or self-dealing)
 Pets
 Many associations have passed rules limiting or prohibiting pets in
the units, and they are almost always upheld
 Architectural Controls
 Because aesthetics judgements differ, controls by architectural
design commissions are ordinarily upheld if they are intended to
promote uniformity or are otherwise thought to have a reasonable
basis
COOPERATIVES
o Cooperative  the entire building is owned by a single nonprofit corporation
 Individual owners buy shares in the corporation & lease their individual
units – they do NOT own the units, nor the building, they are merely
shareholders of the corporation
 Due to the financial interdependence of cooperative owners cooperatives
often assume the power to approve or veto sales of particular units to
protect other cooperative members’ collective financial stake



They do this by reserving the right to approve any transfer of any
leasehold and associated shares
 Such power may lead to discrimination
o 170 West 85 Street HDFC v. Jones = A gay man lived in a
cooperative apartment with his life partner. When he died,
the life partner tried to stay but the cooperative refused to
allow him to. A clause in the lease agreement provided that
neither the directors nor the shareholders may unreasonably
withhold consent to assignment of the lease and a transfer
of the shares to a financially responsible member of the
shareholder’s family other that the shareholder’s spouse, as
to whom no consent is required. The life partner sued,
claiming exclusion based on his sexual orientation—a form
of housing discrimination illegal in New York
AFFORDABLE HOUSING ARRANGEMENTS
o Limited equity cooperative  type of cooperative ownership in which both the
lease and the share agreements allow sale of the owner’s shares at a fixed price,
thus preventing the owner from benefitting from increases in the market value of
the unit
 Right of First Refusal
 Sometimes an owner may sell shares to a third-party
 Often the arrangement gives the cooperative a right of first refusal
to purchase the shares, with their accompanying possessory rights,
at the prearranged price
 Community Land Trusts
 A nonprofit corporation that generally has an elected board of
directors/trustees and an open membership
 The trust buys and holds title to property by acquiring inexpensive
land located in a depressed area or whose purchased is subsidized
 While retaining title to the land, the trust sells the building located
on the land to a low-income purchaser
o Separating ownership of the land and the building requires
a lease by the trust, as owner of the land, granting
possessory rights to the owner of the building (known as a
“ground lease”)
CONTINUING CARE RETIREMENT COMMUNITIES
o CCRC  a form of common ownership where residents are normally senior
citizens who purchase access to housing combined with access to complete
medical care, including nursing home facilities


Ordinarily a buyer will pay a substantial price for an apartment and then
pay monthly fees
In return, the buyer gets a place to live + ability to move to different
portions of the facility if the need for medical or nursing care changes
FAMILY PROPERTY


MARITAL PROPERTY INTERESTS
o Two marital property systems exist in the US
 Separate Property – covers 41 states + DC
 Community Property – covers 9 states (Wisconsin, Idaho, Louisiana,
Texas, Washington [RCW 26.16.030], Arizona, Nevada, New Mexico,
California)
o Rights that are COMMON to both separate and community property include:
 (1) Contracting before or during marriage
 Premarital agreements by spouses to alter or waive their respective
property rights (i.e. pre-nup) are generally enforceable
o Some courts do not require the agreements to be reasonable
but MOST scrutinize them for unconscionability,
substantive fairness, and to see if they were voluntary
 Courts are generally reluctant to enforce post-marital agreements
 (2) Alimony or maintenance
 Period payments to provide necessary support to an ex-spouse
 RCW 26.09.090
 (3) Child Support
SEPARATE PROPERTY
o Separate Property  allows each spouse to retain his or her own property earned
both prior and during marriage
 Rights During Marriage
 OWNERSHIP RIGHTS
o Each spouse is entitled to earn or receive property and
owns the property he/she individually acquires
o During marriage each spouse continues to own property
separately unless they actively take joint title to property
(i.e. purchasing a house as tenants by the entirety or
establishing joint bank account)
 DEBT
o Each spouse is individually liable for any prior debts on
property possessed before marriage


o Creditors CANNOT go after a spouse’s property to satisfy
a debt individually undertaken by the other spouse
 DUTY OF MUTUAL SUPPORT
o Spouses have a legal duty to support each other, and this
duty may require a sharing of property earned during
marriage
Rights at Divorce
 EQUITABLE DISTRIBUTION
o All property owned by spouses is redistributed among them
after divorce
o Most states limit equitable distribution to property
acquired during the marriage (but some states even
include property acquired prior)
o FACTORS TO MEASURE EQUITABILITY
 Need = support for necessities i.e. child support
 Status = maintaining the lifestyles shared during the
marriage
 Rehabilitation = support sufficient to allow one
spouse to attain marketable skills such that support
will no longer be needed
 Contribution = treating the marriage as a
partnership and dividing the assets jointly earned
from the enterprise
 Marital Fault = *very few states consider fault or
marital misconduct i.e. infidelity
o Divisibility of Assets
 Very few states recognize university or graduate
degrees as divisible, but a spouse that paid for
education of the other can be reimbursed
 Very few states have deemed celebrity goodwill to
be a divisible asset
Rights at Death
 A spouse may dispose of her property by will, but almost every
separate property state protects the rights of the surviving spouse
by ensuring that he or she is entitled to a significant portion of
the property owned by the decedent at the time of death as
prescribed by the state’s “elective share statute” (usually 1/3 or 1/2
the property, depends on jurisdiction)
o Uniform Probate Code


A marriage lasting less than 15 years should be
entitled to 1/3 while marriage lasting over 15 years
gets 1/2
 Enforced by 16 jurisdictions
 Rights as Migratory Couple
 When a couple from a community property state moves to a
separate property state, they become subject to the law of
equitable distribution on divorce and the statutory share on
death
o The court may apply the law of the place where the
property was acquired, determining that some or all of the
marital property is community property
o However, in either a divorce proceeding or death, the court
is almost certain to apply its own law
COMMUNITY PROPERTY
o Community Property  all property acquired during the marriage is community
property and is owned jointly and equally by both parties; everything else
(property owned prior to the marriage + property acquired by gift/inheritance after
marriage) remains separate
 Rights During Marriage
 SEPARATE PROPERTY
o Income
 Income made off of separate property during the life
of a marriage will either be viewed as separate
property (CA WA, AZ, NV, NM) or as community
property (TX, WI, LA, ID)
o Conversion
 Spouses may expressly agree to hold or acquire
separate property jointly, convert it to community
property, or convert community property to separate
property
 MANAGEMENT
o Each spouse has equal rights to manage community
property without consent of the other (but each has a duty
to act in good faith as fiduciaries)
o BOTH parties must agree to convey or mortgage
community property interests in real estate or in assets in a
business in which both spouses participate
 RCW 26.16.030 – Dictates that consent of both
spouses is needed to bequeath more than ½ the
community property, gift community property,
sell/covey/purchase real property, or create security
interests on community property


DEBT
o All states agree that community property can be reached by
creditors to satisfy “community obligations” but after that
they diverge…
o Premarital Debt
 Debts incurred by one spouse before marriage can
be satisfied by the separate property of that spouse
only
 Creditors may also obtain payment for separate
premarital debt by reaching the proportion of
community property attributable to the efforts of the
debtor spouse
 RCW 26.16.200 – Absolves spouses or partners of
liability for the other’s debts accrued before
marriage
o Post-marital Debt
 Generally, separate property IS REACHABLE by
the creditors for debts incurred during marriage;
but it is NOT reachable by creditors of the other
spouse as to debts for which both spouses are not
jointly liable
 Some states protect community property
from being reached by creditors of
individual spouses unless BOTH spouses
consented to the transaction
 Other states allow community property to be
used to satisfy separate debts incurred by
only one spouse during the marriage
 Some states provide that the debtor’s ½
interest in community property is reachable
to satisfy a debt incurred by one spouse
during the marriage ONLY IF debtor’s
separate property is insufficient to pay debt
Rights at Divorce
 Some states allocate property on divorce by giving each spouse his
or her separate property + an equitable amount of the community
property (WA, ID, TX)



Other states will divide all property as a 50-50 split of all assets
(CA, LA, NM, WI, NV, AZ)
 Commingling
o If separate property and community property have
commingled throughout the marriage the court will trace
the source of funds to determine the current status
o Separate property commingled with community property
retains its character as separate property if it can be
traced, but, if you cannot, then it will be treated as
community property
o Title is NOT dispositive – It does not matter if the disputed
property’s title is in one spouse’s name, if it is acquired
during the marriage, it’s community property unless truly
traced back as separate
Rights at Death
 VALID WILL = In community property states, a spouse may
dispose of her separate property and ½ of the community property
by will (i.e. she can assign it to whoever she wants)
 INTESTATE = If a spouse dies intestate some community
property states give the decedent’s entire community property
interest to the surviving spouse, while others share the decedents
50% interest in the community property between the surviving
spouse and children
o Washington intestacy statute gives decedent’s ½ interest to
spouse upon death
Rights as Migratory Couple
 Most community property states have traditionally classified
property earned in a separate property state AS SEPARATE (and
not community property) on the theory that the law of the place
where property is earned determines its character
 ^Since this creates problems, some states implement a “quasi
community property” rule
o Quasi-Community Property  Treats separate property
earned in a separate property state as community property
if it would have been community property had it been
earned in the state where the divorce is taking place (i.e. it
was acquired during marriage, but not by gift or
inheritance)
o Some states apply this rule upon both death and divorce,
some only apply upon one but not the other


o Washington applies this rule only at death
SAME-SEX MARRIAGE
o Due Process Clause
 The Supreme Court interpreted the fundamental right to marry provided
by the due process clause as a right which extends to same-sex couples
in Obergefell v. Hodges
o Tribal Same-Sex Marriage Law
 Native tribes largely incorporate state and federal marriage laws, but may
limit or have their own (i.e. tribes may not allow same-sex marriage under
tribal laws)
UNMARRIED COUPLES
o Domestic Partnerships and Civil Unions
 A few states recognize domestic partnerships or civil unions and thus
treat the couple as married for purposes of property ownership
 Some states (i.e. Washington) only allow domestic partnerships for
older couples
 RCW § 26.60.025 – Requires one person in a relationship be at
least sixty-two years old, and both share a common residence in
order to register for a domestic partnership
o Common Law Marriage
 Some states recognize a “common law marriage” where parties live
together as husband and wife + can show some public recognition of the
existence of a marital relation, thus treating the couple as married and
entitling them to the benefits of marriage
 Pickens v. Pickens = Where parties such as these live together in
what must at least be acknowledged to be a partnership and where,
through their joint efforts, real property or personal property, or
both, are accumulated, an equitable division of such property will
be ordered upon the permanent breakup and separation
 *Most states do not recognize a common law marriage (i.e. Washington
requires ceremonial marriage)
o Palimony
 Agreements to share property between unmarried cohabitants are
recognized by most states
 Marvin v. Marvin = case which ushered the general acceptance of
palimony agreements; allowed courts to employ the principles of
constructive trust where there is evidence to imply an agreement of
partnership based on conduct of the parties
 Many states require such contracts to be in writing


However, a few states have granted relief in the absence of a
written contract on grounds of equity (i.e. Washington)
 Cornell v. Francisco = Washington case which recognized
palimony without a contract; the couple qualified because of their
stable, marital-like relationship and based on facts including
continuous cohabitation, duration, purpose, pooling of resources
and services for joint projects, & intent – this is known as the
“committed intimate relationship doctrine”
o *When the Committed Intimate Relationship Doctrine
applies, property acquired during the relationship that
would have been community property will be equitably
divided at the end of the relationship
PARENTS AND CHILDREN
o Parents have a duty to support their minor children  this is true in BOTH
community and separate property states
 CHILD SUPPORT
 Awards of child support after divorce are based on the needs of
the child, as well as the ability of the parents to pay
 They are also modifiable over time if circumstances (e.g., a parent
remarries or has more children) should change
 COLLEGE EDUCATION
 Many states do not require parents to pay for college after divorce
 Other states have held the parents that stay together are likely to
pay for college if they are able to do so, and the fact of divorce
should not deprive a child of support that would otherwise have
been provided
LEASEHOLDS

General
o Leasehold  tenant holds a present possessory estate with the for a given length
of time (either determinate or indefinite)
 Quick Recap
 Freehold Estates = fee simple, defeasible fees, life estates
 Non-freehold estates = leaseholds, easements, licenses
 License vs. Lease?
 License is a revocable right to engage in certain activities on the
land of another while a lease is the right to exclusive possession on
the land of another

o They can be distinguished by language of the agreement
(i.e. whether it explicitly states license/lease or indicates
revocability) + the actual character of possession (i.e. did
holder have a right to exclusive possession or a right to
exclude the owner)
TYPES OF TENANCIES
o Term of Years  specified period of time period of weeks, months, years
 Transferable and inheritable
 Leases longer than 1 year must be in writing pursuant to the Statute of
Frauds
 Generally no limit on duration but some state statutes prohibit leases more
for more than a prescribed number of years
o Periodic Tenancy  automatically renewable for a specific period i.e. month to
month, year to year
 Transferable and inheritable
 Notice is required before termination
 RCW § 58.18.140 – Requires 30 days’ notice for rent increases
under periodic tenancies
 Notice of rent increase without notice to quit in response
o Some courts say this means prior tenancy continues at old
rent and was not terminated
o Other states say this implicitly notifies tenant of landlord’s
intent to end the old tenancy and offer a new one w/ a new
rental price
o Tenant’s decision to stay after notice to quit OR notice of
increased rent is considered an acceptance of higher rent
(unless tenant notifies landlord of refusal)
o Tenancy at Will  terminable at will by either party at any time; resembles a
license except for exclusive possession component
 NOT transferable or inheritable; transfer or death of either party
terminates the leasehold
 Need not comply with statute of frauds
 Notice usually required before termination
o Tenancy at Sufferance  tenant wrongfully holds over after the termination of a
prior tenancy
 Tenant is liable to the landlord for fair market value during period of
occupation
 Notice not generally required to terminate (but some state statutes require
owners to go through eviction process)
 Tenant is legally entitled to stay until eviction procedure begins

REGARDING THE TENANT
o Tenant Obligations
 (1) Pay rent
 Modern law covenants are dependent – this means a tenant may
withhold rent if the landlord fails to meet a material obligation
 If landlord never specifies the rent, the court will either hold it to
be the “fair rental value” or completely void the agreement for lack
of a material term
 Many statutes protect tenants from rental obligations if the
property is not habitable due to a natural disaster
 (2) Not commit waste
 (3) Avoid damaging the premises
 RCW § 59.18.130 –Requires tenants keep the premises as clean
and sanitary as conditions permit, properly dispose of all garbage,
and broadly restore the property to its initial condition except for
normal wear and tear at the end of the term
 (4) Comply with covenants in lease agreement
 Subletting and landlord consent clauses  tenant has the ability
to transfer a lease agreement either temporarily or permanently,
unless there is a clause requiring the landlord’s consent (such
clauses are enforceable and landlord is usually free to decline
whoever) OR a clause prohibiting sublets entirely (also
enforceable)
 (5) Occupancy
 Tenant has no duty to occupy the premises unless the contract
provides otherwise (i.e. the rent is based on a “pure percentage
lease” in which rent is calculated solely as a percentage of sales)
 A court is unlikely to force an unprofitable business to operate,
even if stipulated in the contract
o Illegality
 Leases for illegal purposes are void if both parties contemplated the
purpose
 If only the tenant pursues an illegality  the landlord may still
enforce the lease
 If landlord is engaged in illegal dealings  they are not entitled to
unpaid rent
 A lease may be terminated if new regulations make its use illegal
o Landlord’s Remedies for Breach
 Forfeiture


Landlord is entitled to recover possession by terminating the lease
upon breach of a material term in the agreement (i.e. duty to pay
rent)
 Damages
 Landlord may sue for back rent owed or damages for anticipatory
breach
 Self-help
 Landlord’s generally must follow specific rules for evictions and
most states outlaw the use of self-help to force the tenant out (any
force, threat of force, use of ruse or entry through an open window,
changing locks, etc. are all considered force)
 Chryar v. Wolf = Landlord started eviction processes against two
tenants. Before eviction proceeding while tenants were out of
town, he removed all their personal property from the premises and
placed on the street with a sign saying “Free Take”. The court held
the landlord wrongfully took the property and awarded damages
for the value of the property that was lost
 Duty to Mitigate Damages
 When tenant stops paying and moves out before end of lease 
landlord has the right to sue to recover possession, back rent owed,
and the costs of finding a replacement tenant
o Other remedies include (1) accepting the tenant’s surrender
of the lease, (2) reletting the premises on the tenant’s
account, and (3) suing for damages
 However – landlord has a duty to mitigate damages by finding a
replacement tenant should the original one abandon
o If he does NOT look for one, tenant only obligated to pay
damages for what the landlord would have lost if the
landlord had acted reasonably to mitigate damages
o Acceleration clauses = some landlords attempt to contract
around this duty by including a clause making the rest of
rent due if tenant abandons premises or otherwise breaches
the lease in a material way; sometimes enforceable,
sometimes not
REGARDING THE LANDLORD
o Landlord’s Obligations
 (1) Delivery of possession
 Landlord must provide tenant with legal right to be there, granting
him actual physical possession (i.e. with the lease and keys to the
apartment)


(2) Not to interfere with tenant’s quiet enjoyment
(3) Security Deposit
 Most states regulate the landlord’s use of security deposits by
limiting the amount the landlord can lawfully demand and by
requiring landlords to deposit them in interest-bearing accounts
 (4) Maintain and repair premises
 (5) Evict harmful tenants
 Under the Blackett Doctrine, the landlord is liable to evict other
tenants who cause harm or disturb the quiet enjoyment of others,
otherwise the non-harming tenants have the right to abandon the
lease
o Blackett v. Olanoff = A landlord rented an apartment to
several tenants and a neighboring premise to a noisy bar
that had loud music late into the night. The court held that
there was an inherent conflict between the two activities
and that the bar had breached an express covenant in its
lease not to disturb the quiet enjoyment of the neighbors
o *if the domestic violence amounts to a nuisance, the
landlord may have the duty to evict the victim under the
Blackett Doctrine
o Eviction
 Actual Eviction
 An act by the landlord that physically bars the tenant from the
premises (i.e. changing locks, blocking entry, removing tenants
belongings)
 NOT available when:
o No good faith justification (jurisdictional)
o Discriminatory reason
o When the foreclosing proceedings are still going on and
title has not yet transferred to a new third-party owner
(jurisdictional)
 Partial Actual Eviction
 When the landlord bars the tenant from part of the premises
 Partial eviction may relieve the tenant of rent obligation
completely – however, restatement provides the proper remedy is
rent reduction
 Constructive Eviction
 Acts by the landlord (or failure to complete duties) that so
substantially interfere with the tenants quiet enjoyment of the
property

 Landlords are not permitted to do this
 Retaliatory Eviction
 Landlords may not evict or deny a lease renewal of residential
(non-commercial) tenants in retaliation against the tenants attempts
to assert their legal property rights
o Edwards v. Habib = A landlord rented an apartment to
several tenants and a neighboring premise to a noisy bar
that had loud music late into the night. The court held that
there was an inherent conflict between the two activities
and that the bar had breached an express covenant in its
lease not to disturb the quiet enjoyment of the neighbors
 Uniform Residential Landlord and Tenant Act
o Creates a presumption that an eviction is retaliatory if it
comes within one year of the tenant taking a number of
specified actions that were intended to protect or further the
tenant’s rights to habitable
 RCW 59.18.240
o Retaliatory eviction = landlord moves to evict, raises rent,
reduces service or increases obligations of a tenant because
of good faith and lawful complaints by tenant; presumed
retaliatory IF occurs within 90 days after complaints made
(though there are exceptions)
TENANTS RIGHT TO HABITABLE PREMISES
o Constructive Eviction
 Every lease has an implied covenant of quiet enjoyment  thus
constructive evictions are NOT permitted and if they occur in a manner
that justifies abandonment, tenant is entitled to leave the property and
cease rent payments
 Constructive eviction doctrine usually functions as a DEFENSE to
landlord’s claims of unpaid rent
 To take advantage of the doctrine, tenant must show some
intentional act on the landlord’s part which substantially interfered
with tenant’s quiet enjoyment
 Tenant may also show landlord failed to act when he had a duty to
do so
 Majority of states require that a tenant ACTUALLY move out to
assert this defense
o Implied Warranty of Habitability
 Majority of courts hold that residential leases contain a non-disclaimable
implied warranty of habitability that the landlord will provide minimal
standards of living in the house
 VIOLATIONS

o The condition of the property must render it truly unsafe,
unsanitary, or uninhabitable to bring a claim for breach
(Some violations of the house code are not sufficiently
serious to count)
o The tenant has a duty to provide notice of the problem to
the landlord BUT … does not need to show that the
landlord did anything wrong, is at fault, or acted
unreasonably to prevail on this claim
 This warranty is codified in MOST STATES
o RCW 59.18.060 Landlord must at all times during tenancy
keep the premises fit for human habitability
o Remedies for Breach of Warranty
 Termination of the tenancy – rescission of the contract
 Tenant must provide landlord with notice of violation which states
landlord has 14 days to fix the problem or else tenant will
terminate after 30 days (Uniform Residential Landlord and Tenant
Act)
 Rent withholding – until the landlord fixes the problem
 Rent abatement – if the landlord sues to evict the tenant for nonpayment,
court may reduce the rent owed during the period of the violation
 Damages – tenant may remain in possession, continue to pay rent, and
affirmatively sue the landlord for damages
 Injunction or specific performance
 Repair and deduct – the tenant may make minor repairs and deduct from
the rent
TRANSFERS
o Landlord  may transfer ownership but transferee takes possession subject to the
lease (unless otherwise specified)
o Tenant  can transfer depending on lease (see types of tenancies above)
 SUBLETTING AND ASSIGNING
 Subletting as a tenant is NOT the same as assigning your interest
o Assignment = both assignor AND assignee owe duties
directly to the landlord
o Sublet = Subtenant owes a duty to the sublessor (i.e. the
original tenant) and the sublessor owes a duty to the
landlord; there is NO direct obligation from subtenant to
landlord
o While the traditional rule was that you could only transfer
your whole interest in a lease, modern view looks at intent

behind the transfer to determine what type of transfer it
was
When lease is SILENT about tenant’s right to sublet
o This often entails that sublets are subject to the landlord’s
consent, though the landlord may not withhold consent
unreasonably
REAL ESTATE TRANSACTIONS


CREATION OF SALES CONTRACTS
o Procedure
 Offer & Acceptance
 Sign a sales contract (aka purchase and sale agreement, or future promise
to transfer title in exchange for specified price)
 Title examination
 Property examination
 Financing is obtained
 Open escrow (a bond, deed, or other document which is delivered by
promisor to a third party to be held until condition is performed, and then
delivered to promisee)
 Document preparation
 Closing (where ownership and title of the property is transferred to the
buyer)
BROKERS
o Broker  hired by seller to help find potential buyers and compensated by a
commission paid by the buyer, which may range from 5-8% of the purchase price
of the property
 Commission
 Timing commission is owed
o Majority rule – unless seller and broker agree otherwise,
broker is entitled to commission when she procures a
purchaser who is ready, willing, and able to buy the listed
property on the vendor’s terms AND that purchaser makes
an offer
o Minority – a few states hold that commission is not earned
until the closing
 Commission obligations after a failed sale

o Buyer refuses transaction – seller is obligated to pay the
commission even if the buyer defaults and later backs out
of the deal before closing
o Seller refuses transaction – seller is obligated to pay
commission if the seller backs out, because seller is
breaching her implied obligation to complete the deal
 EXCEPTION: seller may not be obligated to
complete the deal or pay broker’s commission if
seller acted in good faith with reasonable belief that
he was able to convey good title but was not able to
do so
 Obligations when buyer fails to obtain financing
o Majority rule – once a contract is signed, if the buyer
cannot obtain financing, the seller still must pay
commission to the broker because the seller has a duty to
scrutinize the buyer’s financial status
o Minority – a few state say commission is NOT owed when
this happens because the broker
 Timing commission is paid
o Most listing agreements provide that commission will be
paid at the closing, even though it is technically earned at
time buyer has been found
Types of Listing Contracts
 Open Listing  allows landlord to sell the property herself or
multiple different brokers at the same time, and the broker will
receive a commission only if she finds a suitable buyer on the
seller’s terms before anyone else does
 Exclusive Agency Listing  broker is entitled to a commission if
she or another broker from that agency finds a suitable buyer, but
NOT if the owner finds a buyer herself
 Exclusive Right to Sell  promises the named broker a
commission if the property is sold regardless of who finds the
buyer
 Multiple Listing Service  arrangement used by brokers to pool
all listed properties; the original or “listing” broker ordinarily
obtains an exclusive right to sell from the owner and then lists the
property on the service
o Splitting Commission – if a broker other than the listing
broker procures a buyer, commission is SHARED between

the listing broker, selling broker, and perhaps listing service
itself
 Net Listing  *largely prohibited; the broker takes her
commission out of the purchase price to the extent it exceeds the
seller’s price
 Option Listing  *largely prohibited; broker promises to buy the
property at a set price, sell the property, and pocket the difference
as commission
 Broker’s Obligations
 OBLIGATIONS TO BUYER
o Brokers must discloser to buyers that they are working for
the seller rather than the buyer, and also must disclose
known latent defects in the property that might have led the
buyer to decide not to buy
 CONFLICTS OF INTEREST
o A broker hired by both a buyer and seller have conflicting
interests, and must disclose to both parties that they are
working for the other
o Many states also allow “designated agency” in which one
broker in the agency represents the seller while another
represents the buyer in the transaction
 UNAUTHORIZED PRACTICE OF LAW
o A broker may not engage in anything resembling the
practice of law (codified everywhere; RCW 2.48.180)
o Cultum v. Heritage = Washington case in which court held
a real estate broker engaged in the unauthorized practice of
law by including a very specific clause in the sale contract;
broker is only permitted to complete SIMPLE printed
standardized real estate forms, which must be approved by
a lawyer
PURCHASE AND SALE AGREEMENTS
o OFFER & ACCEPTANCE
 The seller sets and asking price, and the buyer makes their offer
 The seller may accept the offer, and the two may also bargain
about other relevant terms of the sale
 In many states, this initial stage is done orally – seller may accept
the offer verbally or in writing
 If seller accepts  there is a BINDING AGREEMENT, however it must
be in writing pursuant to the statute of frauds
o STATUTE OF FRAUDS


A written purchase and sale agreement signed by both the seller and buyer
is required by the statute of frauds  must include the following
required terms: (1) parties to be bound, (2) price, (3) description of the
property, (4) expression of the intent to sell or buy, and (5) a signature by
the party to be charged
 Listing Agreements
o Depending on the state, a listing agreement may be
considered a contract for sale of real property and thus must
satisfy the statute of frauds (i.e. Washington RCW
19.36.010)
 Electronic Contracts
o Majority of states allow real estate contracts to be entered
into electronically (i.e. by email) pursuant to the Uniform
Electronic Transactions Act
 RCW 19.34.300 The statute of frauds can only be
satisfied for electronic contracts by using a digital
signature – i.e. using docu-sign, but NOT merely
an e-signature
 Binders
o Binder = agreement to negotiate for the terms of a longer
sales contract
o Some courts hold that signing a binder is NOT enforceable
because the parties intend further negotiation, but other
courts find that the binder IS enforceable if it satisfies the
statute of frauds
 Oral Modifications
o The statute of frauds is violated if there are oral
modifications to written land sale agreements
EXCEPTIONS
 In some circumstances, the statute of frauds requirements need not
be met to enforce a sale contract:
o Part Performance  Oral sales contracts can be enforced
if the buyer has taken substantial steps to complete the
transaction such as (1) payment of all or a substantial part
of the purchase price, (2) taking possession of the property,
or (3) making substantial improvements to the land
o Promissory Estoppel  Oral promise of an intent to sell,
on which the buyer substantially and reasonably relies to
his detriment, may lead the court to enforce the promise if
necessary to achieve justice
o Constructive Trust  Prevent unjust enrichment when
property has been acquired in such circumstances that the
holder of the legal title may not in good conscience retain
the beneficial interest
o EXECUTORY PERIOD
 The time between signing the contract and closing
 Risk of Loss
o Equitable Conversion Doctrine = Once the contract is
signed, the purchaser is treated as the equitable owner of
the property and, as the owner, bears the risks associated
with ownership should the property be harmed during the
executory period
 Thus, the buyer must complete the deal even if the
house burns down
 However – most contracts place the risk of loss
on the seller and require the seller to maintain
insurance through the executory period
 Death of a Contracting Party
o Death of the buyer or seller during the executory period
does not invalidate the agreement, and their heirs or
devisees have rights and obligations to complete
 The deceased seller’s interest becomes personal
property
 The deceased buyer’s interest becomes real property
o BREACH
 Fraud
 When a party is induced to enter into the contract by a material
misrepresentation, the defrauded party may generally rescind the
deal and recover damages without being liable for a breach of
agreement themselves
 ELEMENTS OF FRAUD
o (1) Seller made false representation of fact, (2) knew or
should have known it was false at the time the statement
was made, (3) intended to induce the buyer to rely on the
statement, (4) the buyer did justifiably rely on the
statement, and (5) suffered harm as a result of the reliance
o *Note on nondisclosure of latent defects
 Many states require disclosure of latent defects that
substantially affect the value/habitability of


residential property that are unknown and
undiscoverable to the buyer
 EXCEPTIONS
o Puffery
 The seller will not be liable for fraud for voicing an
opinion on the desirability of the house or engages
in puffery to extol its virtues
o Duty of Diligence on the Buyer
 The seller will not be liable for fraud if the buyer
should have discovered the truth through reasonable
diligence, but courts do not place a duty on the
buyer to investigate whether what the seller said
was true
o Waiver
 A buyer may not be able to sue for fraud if the seller
notes that the property is being sold “as is” –
however, no court allows this to preclude the seller
from liability for affirmative misrepresentations
Warranty of Habitability for New Homes
 Sellers of new homes impliedly warrant that they are habitable and
fit for their intended purpose. A buyer will not be liable for breach
of contract for refusal to complete a transaction in which a new
home is not habitable
Marketable Title
 Marketable Title  a title (union of all elements of ownership
constituting the legal right to control and dispose of property) in
which a reasonable buyer would accept because it appears to lack
any defect and to cover the entire property that the seller has
purported to sell
o A buyer will NOT be liable for breach for refusal to
complete a transaction in which the seller does not have
marketable title
o Marketable title need not be perfect, must only be
reasonably free from all doubt – thus, to back out of the
deal without penalty, the buyer merely must show that a
reasonable buyer would hesitate to accept the title
 COMMON TITLE PROBLEMS
o Defects in chain  such as prior unrecorded conveyance,
an unsigned deed, or a conveyance without the requisite
consent of a spouse who was a co-owner
o Adverse Possession  title based on adverse possession
rather than record title
 When a contract calls for record title instead of
marketable title – it excludes title based on adverse
possession
o Partially-lost Title  seller’s title to some or all of the
property may have been lost to another by adverse
possession, foreclosure, or eminent domain
o Encumbrances  property subject to outstanding
encumbrances held by third parties may be unmarketable
(i.e. easements, covenants, mortgages, liens, unexpired
leases, encroaching structures, etc.)
 Exception: A title is NOT rendered unmarketable
when the buyer was aware or on constructive notice
at the time the contract was signed because the
encumbrances were visible or the contract mentions
them and provides for their continuation
o Zoning  A property in violation of zoning law generally
has an unmarketable title, but violation of an existing
building or housing code does not render the title
unmarketable
 Good Faith Effort to Obtain Financing
 When contract is contingent on buyer obtaining financing, courts
imply an obligation on buyer to make a good faith effort to obtain
such financing
 Mutual Mistake
 If BOTH parties base their agreement on a mistaken fact that was
essential to the contract, either party may treat the contract as
invalid and seek cancellation or rescission
o BUYER’S REMEDIES UPON BREACH
 Expectational Damages
 The lost profit from the transaction, measured by the difference
between the market price and the contract price on the date of the
breach
 Good Faith Limitation
o When a seller acted in good faith but for some reason could
not convey good title, the buyer is not able to recover
expectational damages and is limited to restitution only
 Restitution Damages
 Return any payments made to the seller back to buyer

Consequential/Reliance Damages
 A buyer may be able to recover expenditures made in reliance on
the contract and lost profits from other transactions that would
have been earned had the sale gone through, so long as they should
have been foreseeable by the parties at the time the contract was
signed
 Specific Performance
 A court order which forces the seller to complete the transaction
and sell the property to buyer
o SELLER’S REMEDIES UPON BREACH
 Expectation Damages
 The lost profit from the transaction, measured by the difference
between the market price of the property and the contract price on
the date of the breach
 Liquidated Damages
 When a buyer refuses to complete the deal, the seller can usually
retain the deposit as a liquidated damage, often set by the parties as
part of their contract
 UNLESS… the seller is able to quickly find a new buyer and
suffers little or no damage from the breach – then seller is NOT
able to keep the deposit from the initial buyer as a liquidated
damage
 Consequential/Reliance Damages
 Seller may be able to recover expenditures made in reliance on the
contract and lost profits from other transactions that would have
been earned had the sale gone through, so long as they should have
been foreseeable by the parties at the time the contract was signed
 Specific Performance
 Courts may award specific performance, forcing the buyer to
purchase the property and take title, but usually only when
damages are an inadequate remedy (i.e. because the property is not
readily marketable or if its value is hard to determine)
DEEDS & TITLE PROTECTION

REQUIREMENTS FOR CONVEYANCE OF DEED
o WRITING
 To be enforced, a deed must be in writing and (1) identify the parties, (2)
describe the property being conveyed that is sufficiently precise to locate
the boundaries of the property, (3) state the grantor’s intent to convey the
property interest in question, and (4) contain the grantor’s signature
 *Note on describing the property
o Boundaries of the property may be defined by reference to
official surveys, “plats” or by “metes and bounds” – these
approaches may also be combined with the general location
stated
o If a border is described with reference to a river or stream
 When river changes happen slowly, borders shift so
owner remains next to water
 When stream changes suddenly, the courts will
preserve the old borders
 Most deeds are RECORDED  but recording is not required to transfer
title in most states
 However – recording is necessary to preserve title in the event of
competing claims and to keep the title marketable
 RCW 64.04.010 Washington requires deeds to be notarized in
order to transfer title
o PROPER TRANSFER
 Intent
 Grantor must show an intent to immediately divest himself of title,
either on the face of the deed or in his actions/surrounding
circumstances
 Delivery
 For title to pass, the deed must be delivered, as failure to do so may
indicate intent to retain title
 Delivery may be actual (giving full property), constructive (giving
access to the property), or symbolic (the paper deed)
 Instances of ambiguous delivery
o Conditional Gifts
 If condition is death of the grantor  courts will
generally find delivery has NOT occurred…
 However Uniform Real Property Transfer
on Death Act, which has been adopted by
more than ½ the states, allows execution of a
deed that is only effective on death of
grantor
 If condition is any other event  courts are
divided


If only transferring an interest – it’s
considered a present transfer of a future
interest
 If conveying the whole deed, which is
absolute on its face – some courts hold this
is NOT a transfer at all, while others allow
immediate title transfer upon occurrence of
specified event
o Joint Bank Box
 When donor places deed in jointly held security box
– courts are split on whether delivery has occurred
o Revocable Trust
 Even though conditional or revocable deeds of land
are not generally allowed, revocable trusts are
valid everywhere
 Thus grantor can effect delivery by declaring a life
estate trust for herself with the remainder to go to
another once the trust ends, and then she can end
the trust via revocation as executor
 Acceptance
 Grantee must accept the actual, constructive, or symbolic
conveyance of the property
o GROUNDS FOR VOIDANCE
 Forgery  a forged deed is VOID and does not transfer title to the
grantee
 Exception being that a court may bar the true owner from
recovering possession from a subsequent bona fide purchaser on
the basis of equitable estoppel
 Fraud in the Execution  if a grantor is tricked into signing a deed, the
signature is treated like a forgery and the deed is VOID
 Fraud in the Inducement  if a grantor is induced to transfer the
property by fraudulent representations upon which the grantor relies, the
deed is not void but it is VOIDABLE (i.e. the deed passes title but grantor
may seek to revoke the deed)
 Exception being that if the property has already been transferred to
a bona fide purchaser after the fraudulent inducement of the
original owner, the grantor no longer has the power to choose to
revoke the deed
TITLE COVENANTS

o Title covenants are violated only if the title IS IN FACT defective (not merely
because the title is in doubt)
 Merger doctrine  after closing, the title covenants in the deed supersede
any promises made in the initial contract of sale; this means the contract is
merged into the deed and the sole basis of relief for the buyer is to sue on
the title covenants in the deed
o Covenants about conveyance of good title contained in the deed
 Warranty Deed – Most deeds contain some form of covenant promising
that the grantor is able to, and does, convey good title
 Quitclaim Deed – grantor makes no representation in the deed that the
grantor has title to the property being conveyed or the right to convey title
to the grantee
 Example: a spouse with interest in their partner’s property claim
may sign a quitclaim deed to give up that interest
 Special Warranty Deed – grantor covenants against title defects arising
from acts of the grantor herself
 Example: grantor did not record the title, so it’s not marketable yet,
but covenant promises it will be by closing
o TYPES OF COVENANTS
 Present Covenants  breached, if at all, at the moment the deed is
delivered at the closing to the grantee; they do NOT run with the land and
future owners have no claim against the grantor who made them
 Seisin: A promise that the grantor is in possession of the land
and/or has the right to possess the land
 Right to Convey: A promise that the grantor has the right to
transfer title to the property
 Against Encumbrances: A promise that there are no
encumbrances on the land such as easements, covenants,
mortgages, or leases other than those listed in the deed
 Future Covenants  breached, if at all, after closing; they run with the
land
 Warranty: A promise to warrant and defend the grantee against
any attack on the grantee’s title
 Quiet Enjoyment: A promise that the grantee’s possession will
not be disturbed and that, if it is, the grantor will compensate for
the disturbance
 Further Assistance: A promise to execute any documents needed
to clear the grantee’s title, and may be enforced by specific
performance as well as damages
MARKETABLE TITLE ACTS

o Marketable title acts  exist in about 1/3 of the states to limit the extent of title
search required; they VOID interests that are not re-recorded within a time
period set by statute (typically 20 to 40 years before the present) and prevent
breaches of sales contracts
 During a title search, the searcher must find a title that will count as the
“root of title” which is the most recent recorded deed in an unbroken
chain of title that is at least as many years long as the statutory period
 Some states have curative acts that validate recorded deeds even though
they have some technical defects, such as lack of a seal or a defective
acknowledgement, to help make the title marketable
 ***Note – Washington does NOT have marketable title acts
RECORDING ACTS
o Recording  when property interests are created or transferred, the document that
effectuates the transfer is “recorded” by the grantee in the recording office or
registry of deeds
 PURPOSE = to help keep a title marketable and guard a bona fide
purchaser’s interest to a property by making people aware of claims to a
property
 Deeds that convey title to land, long-term leases, mortgages, easements,
and covenants can all be recorded
 Acknowledgement Required
 Most states require documents to be acknowledged by a notary
public or other official before they can be recorded
 If a deed is not acknowledged it is unrecorded and insufficient to
put a later buyer on notice
 If the acknowledgement is technically defective – it may or may
not be sufficient depending on the jurisdiction
o SEARCHING RECORDED DEEDS
 The typical recording office uses a grantor-grantee index
 START in the grantee index to find who the grantor of the
property was, and his grantor before that, and so on until you find
the “root of title”
 THEN… go to the grantor index until you have matched each
conveyance
o *Note – important to remember the search in the grantor
index starts at the date of execution, rather than at the date
of recording
 Subsequently, the title searcher must look for official government
records (divorce judgements, marriage records, tax, foreclosure,
probate, etc.) that may affect title

Chain of Title Doctrine
 When searching, each prior grantor’s interest (the moment he
obtained title to the moment a deed conveying title to someone else
was recorded) forms a link in the chain of prior grantors
 Deeds filed outside of these links will NOT be found by the
searcher  the chain-of-title doctrine allows searchers to limit
their search of the title records to the time period fashioned by each
of the links in the chain
 *Note – it may sometimes happen that deeds fall outside this
chain, and such deeds have a negative effect on purchaser’s
possession of the property (i.e. in the instance of fraudulent
double-dealing grantors)
o TYPES OF RECORDING ACTS
 If an owner purports to make two conveyances of the same land  the
earlier one will prevail unless a recording statute alters this result; thus
recording acts are meant to protect bona fide purchasers (does NOT
protect donees and devisees)
 Race
o The person who records first prevails
o This is true even if the person who records first knows
about an earlier conveyance to someone else
 Notice
o About ½ the states have notice statutes, in which a
subsequent purchaser prevails over an earlier purchaser
ONLY IF the subsequent purchaser had no notice of the
earlier conveyance at the time she purchased
o Types of Notice
 Actual = buyer is aware, at the time she buys, of the
earlier conveyance
 Constructive = the subsequent buyer would have
found out about the earlier conveyance if she had
performed a proper title search
 Inquiry = a situation should indicate to the buyer
that they should inquire who the possessor is and
whether she claims from an earlier conveyance (i.e.
when the property is possessed by someone other
than the grantor)
 Race-Notice
o About ½ the states have race-notice statutes, which protect
subsequent purchasers ONLY IF they (1) had no notice of

the prior conveyance at the time she acquires her interest +
(2) records before the prior instrument is recorded
o RCW 65.08.070 Washington has a race-notice statute
COMMON ISSUES WITH CHAIN-OF-TITLE
 Installment Land Contract
o The seller retains title to the land and the buyer pays the
purchase prices over several years, with the expectation
that the seller will deliver title when the entire purchase
price is paid (i.e. rent-to-own)
o What happens if the buyer discovers an earlier claim
before paying off the entire purchase?
 Outcome 1: Award the land to the holder of the
earlier interest and grant the later buyer restitution
of payments made
 Outcome 2: Award the later buyer a fractional
interest in the land along with the earlier buyer
 Outcome 3: Give title to the later buyer under the
installment land contract but require payment of the
remaining payments to the earlier purchaser
 Wild Deeds
o Recorded deeds that a subsequent searcher could not be
expected to find through normal searching procedures
o Example: O conveys to A, who does not record. A conveys
to B, who does record. Before B takes possession, O
conveys to X, who records. What happens?
 In a contest between B and X, courts uniformly treat
the A-B deed as though it were not recorded and X
prevails
 If B obtains the O-A deed and records it before X
records the O-X deed, depends on the recording
statute followed by that jurisdiction (if notice, X
will prevail; if race-notice, B should prevail)
 Deed Recorded Too Early
o If a deed is recorded too early for another grantee to find it,
some states find for the later grantee because they followed
the chain-of-title doctrine
o Other courts will not find for the later grantee unless they
looked outside of the traditional chain-of-title to make sure
there is no double-dealing
 Deed Recorded Too Late

o Treated similarly as recorded too early, except some courts
will also not find for the later grantee who did not record
their deed before the prior conveyance is recorded
 Shelter Doctrine
o A bona fide purchaser is able to convey property to a third
party even if the third party is on notice of an earlier
conveyance under the Shelter Doctrine
TITLE INSURANCE AND REGISTRATION
o Title Insurance
 Indemnifies the beneficiary for any losses arising out of title problems
 Usually lists known encumbrances and excepts those from its scope of
coverage
 Usually promise to cure title defects if possible and to defend the
beneficiary of the contract in the event of litigation
o Title Registration
 Individual owners voluntarily “register” their land and a certificate of title
is issued by an official of state or local government that represents the
final word on the ownership of interests in a particular parcel of land
FAIR HOUSING LAW

Federal Fair Housing Act of 1968  Outlaws intentional and disparate impact
discrimination based on race, color, sex, religion, national origin, disability (mental or
physical handicap substantially limiting one or more of life’s major activities) and family
status (including children, adoption, and pregnancy) in housing transactions and zoning
o § 3601 – Covered Dwellings
 Prohibits various forms of discrimination in transaction involving
“dwellings,” meaning “any building, structure, or portion thereof which is
occupied as, or designed or intended for occupancy as, a residence by one
or more families (inclusive of single individuals), and any vacant land
which is offered for sale or lease for the construction or location thereon
of any such building, structure, or portion thereof.”
 Nursing Homes, College Dormitories and Time-Share
Condominiums? Generally considered to be dwellings
 Homeless Shelters? Might be considered dwellings, but no legal
authority has decided
 Hotels? Generally NOT considered to be dwellings
o § 3603 – Dwelling Exemptions

§ 3603(b)(1) – Single House Sales: FHA does not apply to “any single
house sold or rented by an owner” ONLY IF (1) the owner owns no more
than three such dwellings and (2) does not use a broker and (3) has not
posted a discriminatory advertisement, posting, or notice for the sale in
violation of § 3604(c)
 § 3603(b)(2) – Multi-unit Dwellings in Which the Owner Occupies:
FHA does not apply to owners when (1) they occupy one of the units in a
multiunit dwelling and (2) the dwelling contains no more than four units.
 Units must be separate and contain families or individuals living
independently of each other
 Owner must actually maintain and occupy the unit as his residence
o § 3607 – Groups Exempt from Protection
 § 3607(a) – Religious Exemptions: Religious organizations can limit the
sale, rental, or occupancy of residential dwellings that they own or operate
to persons of the same religion, unless membership in such religion is
restricted on account of race, color, or national origin
 Owner must really be a religious institution and not merely an
owner attempting to avoid the FHA prohibitions against
discrimination because of religion
 § 3607(b)(1) – Maximum Occupancy Limit Exemptions: Any
reasonable local, state or federal restrictions regarding the maximum
number of occupants permitted to occupy the dwelling are exempt from
the FHA so long as the regulation is (1) neutrally applicable to similar
dwellings and (2) for safety reasons
 § 3607(b)(2) – Family Status Exemptions: Owners of a property can
exclude children if their facilities constitute “housing for older persons,”
meaning (1) if it is intended for, and solely occupied by, persons 62 years
of age or older; or (2) if it is intended and operated for occupancy by at
least one person 55 years of age or older per unit
 To satisfy the second option, (1) at least 80% of the units are
occupied by at least one person 55 years of age or older, (2) the
owner publishes and adheres to policies and procedures which
demonstrate an intent to provide housing for older persons, and (3)
the owner complies with regulations designed to very such
occupancy by valid surveys
 § 3607(b)(4) – Persons with Drug Felonies: Nothing in this subchapter
prohibits discriminatory conduct against a person who has been convicted
of the illegal manufacture or distribution of a controlled substances
 Presumably this means landlords can ask applications about such
convictions and refuse to rent them if such convictions exist
without violation federal law (regardless of national origin, race,
etc)
 *This only applies to drug felonies, federal law does not authorize
discrimination based on most other felonies
o § 3604 – Prohibited Conduct in Sales and Rentals
 § 3604(a) – Refusal After Bona Fide Offer: It is unlawful to refuse to
sell, rent, negotiate, or otherwise make unavailable a dwelling after the
making of a bona fide offer
 Steering: The “otherwise make unavailable” language has been
interpreted to prohibit racial steering (e.g., showing buyers of
different races houses in different neighborhoods) and to prohibit
zoning laws that have unlawful disparate impact on a protected
group
 Purposeful Integration: Courts have held that it is not steering
when a landlord gives access to rental properties in manners and
with an intent to promote integration (United States v. Starrett City
Association)
 Affirmative Marketing: Courts have held that it is not steering
when a landlord uses affirmative marketing to attract members of a
less-represented class because it promotes integration (South
Suburban Housing Center v. Greater South Suburban Board of
Realtors)
 § 3604(b) – Discrimination in Terms and Conditions: It is unlawful to
discriminate in the terms, conditions, or privileges of sale or rental of a
dwelling, or in the provision of services or facilities in connection
therewith
 § 3604(c) – Discrimination in Publication: It is unlawful to make, print,
publish, or cause to be made such any notice, statement, or advertisement
with respect to the sale or rental of a dwelling that indicates any
preference, limitation, or discrimination based on the protected groups
 “Statement” likely applies to oral statements, not just printed
 Restrictive Covenants: Putting a restrictive covenant in writing is a
direct violation of the FHA
 Liability extends to the person who writes the ad and the publisher
of the ad (Exception for websites or internet services under the
Communication Decency Act of 1996)
 § 3604(d) – Discrimination in Representation of Availability: It is
unlawful to represent to a protected group that any dwelling is not
available for inspection, sale, or rental when dwelling is in fact so
available.

§ 3604(e) – Discrimination in Inducement: It is unlawful to profit,
induce, or attempt to induce any person to sell or rent any dwelling by
representations regarding the entry into the neighborhood or a person from
the protected class
 Blockbusting: When realtors urged white owners to sell their
homes because Black families were moving into the neighborhood
 § 3604(f) – Discrimination of Handicap: It is unlawful to discriminate in
the sale or rental, or to otherwise make unavailable or deny, a dwelling to
any buyer or renter because of a handicap
 Handicap: A person with (1) a physical or mental impairment
which substantially limits major life activities, (2) a record of such
impairment, or (3) being regarded as having such an impairment
(*Does not include addiction)
 Reasonable Accommodations: it’s unlawful to refuse to make
reasonable accommodations in rules, policies, practices, or
services, when such accommodations may be necessary to afford
such person equal opportunity to use and enjoy a dwelling
o § 3605 – Prohibited Conduct in Real Estate-Related Transactions
 It is unlawful to engage in discrimination in real-estate related transactions
including brokerage, appraisal services, granting mortgages, and in
residential real estate finance in helping purchase, construct, improve,
maintain, or repair dwellings.
 Questions about the Racial Make-up of a Community: Courts find
no obligation for brokers to answer such questions, but courts are
mixed on whether or not answering this is steering (Hannah v.
Sibcy Cline Realtors)
o § 3606 – Prohibited Conduct in Broker Services
 It is unlawful to deny any person access to or membership or participation
in any multiple-listing service, real estate brokers’ organization or other
service, organization, or facility relating to the business of selling or
renting dwellings; or to discriminate in the terms or conditions of such
access, membership, or participation
o § 3617 – Prohibited Harassment and Interference
 It is unlawful to coerce, intimidate, threaten or interfere in the exercise or
enjoyment of, aiding, or encouraging any other person in the exercise or
enjoyment of any right granted or protected in sections §3603-3606.
 Landlord’s Duty to Prevent Harassment Between Tenants: A
landlord who treats one tenant from a protected group differently,
such as by failing to evict a harasser, is in violation of the FHA.


Post-Acquisition Harassment: Post-acquisition harassment may
violate § 3617 by interfering in the exercise of rights to
nondiscriminatory access to and enjoyment of housing. (Blach v.
Frischholz)
o Miscellaneous
 Discrimination on the basis of sexual orientation, marital status, and
economic status/source of income is not covered by the FHA  but…
many states have laws prohibiting such discrimination in the housing
market and many cities have local ordinances doing the same
 RCW 49.60.222 Prohibits housing discrimination on basis of
marital status and sexual orientation
 SMC 14.08.040 Seattle prohibits housing discrimination based on
ancestry, age, and political ideology
 Compared to the U.S. constitution, which outlaws state action only and
only reaches intentional discrimination, the FHA reaches private
discrimination and makes disparate impact claims possible
 Unrelated adults do not constitute a family, but traditional families that
live together do
 FHA does not cover exclusionary zoning (i.e. zoning that excludes
affordable housing by excluding multi-unit complexes) but some state
laws protect against such zoning
 RCW 36.70A Washington Growth Management Act
HOW TO BRING A HOUSING DISCRIMINATION CLAIM
o Standards of Proof
 INTENTIONAL DISCRIMINATION: Discrimination in the denial of the
right to buy or rent or the granting of discriminatory terms
 Burden on Plaintiff - Prima Facie Case for Intent
o The plaintiff can show that they are a member of a
protected class
o The plaintiff applies for and was qualified to rent or
purchase the unit
o The plaintiff was denied the opportunity to rent or buy
o The unit remained on the market after the plaintiff’s offer
or attempt to rent or buy
 Burden on Defendant: Must show a legitimate and reasonable
basis for denying the opportunity to rent or buy
o What is a legitimate reason? Fear that the tenant would not
be able to pay.
o What is not a legitimate reason? Judgements on the
tenant’s appearance or demeanor

Burden Shifts Back to Plaintiff: If it becomes clear that
defendant did not have a legitimate reason or they lied about their
reason, the plaintiff may still need to present evidence on top of the
prima facie case that the defendant’s explanation was dubious
 DISPARATE IMPACT DISCRIMINATION: Allegations that a facially
neutral policy has an unlawful disparate effect on members of a protected
group (ex. No welfare rental policies and zoning laws)
 Burden on Plaintiff: Must show the neutral policy actually or
predictably results in a disparate impact on a group of persons or
creates, increases, reinforces, or perpetuates segregated housing
patterns
 Burden on Defendant: Must prove a legally sufficient
justification for its practice, in that it is necessary to achieve one or
more substantial, legitimate, nondiscriminatory interests that are
supported by evidence
o Standing
 AGGRIEVED PERSONS: The FHA allows for lawsuits by “aggrieved
persons” who include anyone claims to have been injured by a
discriminatory housing practice
 Testers (e.g., people who pose as potential buyers or renters
seeking assistance used to show discriminatory practices): Testers
have standing to bring claims against realtors and sellers who have
engaged in discrimination
o Havens Realty Corp v. Coleman = court held that a black
tester who alleged false information about availability of
housing had standing to bring this claim under the FHA
 Equal Access Organizations: Equal housing access organizations
have standing to bring a lawsuit against a realtor for steering on the
ground that the steering practices caused the organization to devote
extra resources to identify available housing and counteract the
defendant’s steering practices
 People Who Were Discriminated Due to Association to
Protected Group: The FHA grants standing to non-protected
individuals who experience discrimination given their association
to members of a protected group
o Bank of America Corporation v. City of Miami = city
alleged racial discrimination in lending processes by bank
had injured the city financially because of disproportionate
number of defaults; court held the city had standing to sue
the bank under FHA
o Remedies
 Civil Court Claim
 Statute of Limitation: 2 years
 Damages: Injunctive relief, compensatory, and punitive damages
 Claim with the US Department of Housing and Urban Development
(HUD)
 Statute of Limitation: 2 years
 Damages: Injunctive relief, compensatory, and punitive damages
o 1st Offense: $10,000 cap
o 2nd Offense: $25,000 cap if two offenses within five years
o 3rd+ Offenses: $50,000 cap if three or more offenses within
the past seven years
 Process
o Investigation of the complaint, and a “charge” if there is
reasonable cause that a violation was committed
o Once charge filed, go to federal court or a HUD
administrative law judge will hear the case
o Administrative law judge gives holding, and either party
can appeal to federal court
LAND USE REGULATIONS

ZONING LAWS
o LOTS AND BUILDING REGULATIONS
 Area or Lot Zoning: Regulate the size and shape of lots
 Typical techniques to do so involve (1) minimum lot Sizes and (2)
minimum frontage requirements
 Building Regulations: Restrict size, shape and placement of buildings on
the lot
 Setback Requirements: Mandate that structures be “set back” a
certain distance from the front, side, and back boundaries of the lot
 Height Restrictions
 Coverage Percentage: The percentage of the lot that may be
covered by structures
 Floor Area Ratios: Limit the allowable square footage of
development by limiting construction to a multiple of the square
footage of the lot (ex. 2:1 – two square feet of development for
every one square foot of lot area)

Minimum Floor Space Requirements: Dictate how much floor
space is required on a developed lot (ex. A single family home
must contain a minimum of 1600 square feet of floor space)
o USE REGULATIONS
 Use Zoning  Limits the kinds of activities that can be performed on the
land (e.g., residential, commercial, agricultural, and industrial uses)
 Euclidean/Cumulative Zoning: Less intense activities (ex.
Residential uses) were allowed in more intense zones (ex.
Industrial uses), but more intense uses were excluded from less
intensive zones
o Sometimes Euclidean zoning is noncumulative in the
sense that residential uses are excluded from industrial and
commercial districts
o *Euclidean zoning is very rigid and thus spawned
exceptions and flexible devices
 Exceptions and Flexible Devices
 Special Exceptions: Use permitted by the zoning law in a
particular district provided that certain specified conditions are met
 Contract Zoning: Developers who want to construct projects that
are inconsistent with zoning requirements may approach the
planning board or the city council with a proposal to rezone the
parcel in a manner that will authorize the project
o Bilateral v. Unilateral Agreements
 Bilateral agreements involve promises on both
sides, by the owner and the city
 Unilateral promises are commitments by the owner
to agree to certain conditions to induce the
municipality to rezone the land
 ***More likely to be struck down if a bilateral
agreement than unilateral, as bilateral agreements
usually deprive the public of a say or a later
governing body of the power to pass whatever law
it wants or to amend the existing zoning law
o NOTE – SLAPP SUITS: Developer gets sick of opposers
who file suit, so they sue/countersue them for
grandstanding and accuse them in engaging in frivolous
opposition (Davis v. Cox = case ruling SLAPP suits are
legal in Washington and cannot be prohibited by the RCW)
 Floating Zones: An unmapped district with detailed and
conditional use requirements that apply or regulate needed and
desired development that have significant community impact (ex.
Shopping centers or industrial parks)
 Overlay Zones: Places a parcel in two different zones (ex. A
parcel might be an educational-institutional district for its basic
zoning and in an “overlay” historic preservation district)
 Planned Unit Developments: A planned unit development (PUD)
is an area of land that is intended to be developed by a single
developer and to include uses that are often separated into different
zones such as a mix of single-family and multiple family dwelling
or a mix of residential, commercial, and even industrial uses.
 Cluster Zones: Density is determined for an entire area, rather
than on a lot-by-lot basis.
o PROTECTION OF PRE-EXISTING PROPERTY RIGHTS
 Prior Nonconforming Uses: For a nonconforming use to be entitled to
continue, it must have been lawful and in existence at the time the zoning
ordinance was passed. Nonconforming uses cannot be extended or
intensified in a way that constitutes a substantial change.
 Normal Expansion: Protect prior investors or property owners,
but not allow them to change their uses—simply engage in normal
or necessary expansion (Cumberland Farms Inc v. Town of
Groton)
 Amortization: Some zoning ordinances seek to reduce the
nonconformity to be consistent with the zoning planning by
placing a time limit on its continuation, on the theory that the
owner will recoup a reasonable return on the investment over time.
 Variances: Permissions to deviate from the zoning law when application
of the ordinance to a particular parcel would (1) impose an unnecessary
hardship and (2) the proposed use would not be contrary to the public
interest and would not substantially impair the propose of the zoning plan
and ordinance.
 Degree of Hardship: Hardship will generally not be found unless
there is no economically viable use of the property (or no
reasonable return on the owner’s investment) if the zoning law is
enforced; or in the case of a practical difficulties jurisdiction, the
presence of significant economic injury resulting from
enforcement.
 Vested Rights: An owner who begins construction in good faith reliance
on a particular zoning designation will be protected from retroactive
changes in the zoning law if the owner’s efforts and expenditures were “so
substantial as to create vested rights in the completion of the project.”
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Good Faith Requirement: Owners are not protected if they are
aware that an ordinance that would prohibit the use is pending and
that adoption of such ordinance is imminent
When Rights are Vested (jurisdictional):
o Expenditures: When an owner hires an architect, pays for
plans, obtains a building permit, begins construction, and
can demonstrate substantial expenditures, there is no
question the vested rights doctrine will apply.
o Subdivision Plan: Some states grant developers rights if
they have obtained site-specific approval for development,
such as a preliminary subdivision plan
o Permit Granted: Many states require the granting of a
building permit before they will find a vested right
o Permit Applied For: Some states grant developers vested
rights to use their land in accordance with the zoning law in
place at the time they apply for a site-specific permit (RCW
19.27.095)
o REZONING
 Conformity with Comprehensive Plan: Zoning enabling acts require
zoning laws to conform to a comprehensive plan
 Landowners may sue municipalities for actions that go against the
comprehensive plan
 Spot Zoning: Selective rezoning by the municipal legislative body of a
single parcel or small group of parcels of land, in consistency with the
comprehensive plan.
 Public Purpose Requirement: Municipal government generally
does not rezone selective parcels unless it serves some justifiable
public purpose (i.e. creating jobs)
o EXCLUSIONARY ZONING
 Strict Scrutiny (Minorities): Have to show a compelling government
interest and have narrowly tailored the law to achieve that interest reason
for why you did what you did
 Intermediate Scrutiny (Women and Disabled): Have to advance an
important government interest by means that are substantially related to
that interest
 Rational Basis (All Other Kinds of Discrimination): The distinction
being made here rationally justified to some legitimate public purpose
(anything that promotes public health, welfare, or safety)
NONZONING LAND USE CONTROLS
o Building and Housing Codes

Permits: Building codes often require owners doing major renovations or
new construction to submit their plans for approval to obtain a building
permit.
 Inspectors may enforce the building codes
 During Construction: Building inspectors may enter and inspect
the premises during construction to ensure that the work is
proceeding in a safe manner and that the owner is complying with
the submitted plans.
 After Construction: Once construction is completed, owners must
similarly request an inspection from the building inspector to
obtain an occupancy permit.
 Tenants Request: Tenants are often empowered to call local
inspectors to determine if the property is in violation of the
housing code, because of the presence of pests, lack of heat or
water, broken windows or locks, or other major problems
 Subdivision Regulations: A “subdivision” is a large parcel of land that is
subdivided to create an entire neighborhood composed of homes and/or
businesses or other uses. Subdivision regulations are imposed by local
ordinance.
o Historic Landmarks: Both federal and state legislation protect historic
landmarks by designating buildings or districts or districts that are subject to
special controls to prevent structures from being demolished or from having their
external (and in some cases internal) appearance altered.
o Environmental Protections
 Wetlands Regulations: The federal government protects water quality
and regulates development of wetlands under a number of important
statues, including the Federal Water Pollution Control Act of 1972, the
Clean Water Act of 1977, and the Water Quality Act of 1987. These Acts
collectively are referred to as the “Clean Water Act.”
 Endangered Species Laws: The federal Endangered Species Act (ESA),
protects endangered specifies by halting development of sensitive areas
where such species dwell. The Act authorizes the Secretary of the Interior
to designate certain areas as “critical habitats” for particular endangered
species and prohibits development that will harm the species.
 Hazardous Waste Laws: Both federal and state laws regulate and
mandate the cleanup of toxic wastes deposited or spilled into the ground
on private property
REGULATORY TAKINGS
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CATEGORICAL TAKINGS
GENERAL BALANCING TEST
PUBLIC USE REQUIREMENT