Property Outline
Big-Picture Theories Behind Decisions in Property Rights:
 Efficiency: rule that produces more social wealth should be adopted
o Johnson – settlers put land to “better” use, so should have right to title
 Fairness: rule that produces particular distributional outcome is preferred (Popov)
o Or more moral outcome (see Arabian dissent in Moore)
 Administrability: rule that creates most easily administrable outcome/easy to predict
and apply (Pierson)
 Institutional Capacity: rule that allocates responsibility for making judgments to
institution with best ability to decide
 Custom: rule that comports with local custom known to all (Ghen)
 Labor Desert Theory (Locke): rule that awards labor/meaningful use (INS v. AP)
 Legal Realism: rules created are not just about property but substitute for other
values/court’s ideas
o Pierson – honor, not ownership of fox
o Johnson – discovery, not territorial rights/first acquisition
 Bundle of Sticks: property is bundle of rights and responsibilities
o Right to exclude (Steenberg)
o Right to use
o Right to dispose/transfer/destroy (Eyerman)
 Dead Hand Control: many property doctrines want to prevent dead hand control to
keep property in circulation, beneficial use, adapt to changing circumstances
 Chilling effect: don’t want restrictions on property to chill the market as a whole
o Why we disfavor easements in gross, etc
I.
PRIVATE PROPERTY AND ITS ALTERNATIVES
#Original Acquisition
 First Possession: first person to possess something gets it (in time or by some other
act/condition)
 How do you possess something first?
o Rule of capture: First person to possess unowned thing owns it
 Pierson v. Post – two hunters chase fox, possess when actually kill/catch
(or at least mortally wound – shows unequivocal intent to possess) wild
animal
 In making this rule, court considered efficiency, fairness,
administrability
o Rationale soli: land ownership confers ownership
o Labor desert theory (Locke): labor + something else  ownership
o Custom: t
 Ghen v. Rich – sells whale someone else killed, goes against local custom.
Awarded to OG whalers in light of custom
 Consider these factors re: custom:
 Whether universally followed by all members of trade
 Length of time established
 Whether custom incentivizes desirable result
 Custom limited/affects small group
o Discovery: if conquer land, become owner (Johnson v. M’Intosh)
 Can extinguish right of occupancy by treaty or conquest
 Natives had right of occupancy, but was extinguished once
“discovered” – sovereign power/dominion by conqueror trumps
 Cultural incompatibility: different conceptions of proper use of land
(English cultivate, so don’t see Native land as occupied/used)
 Necessity: settlers needed land and judiciary allowed land ownership for
administrability
 Banner (functional explanation): purchased land initially through
voluntary transactions, revolution led to confiscation b/c need to
pay soldiers w/ land
 Intentional interference with one’s completion of possession by a non-competitor
is actionable
o Keeble v. Hickeringill – neighbor scares away ducks in decoy pond, can recover
for loss of ducks would have possessed otherwise
o BUT possession requires complete control of the thing prior to interference
(Popov v. Hagashi – required to sell and split cost of baseball b/c no complete
control)
 Not conversion b/c only pre-possessory interest, did not have rightful
possession yet
 No trespass to chattel b/c didn’t cause damage/devaluation
Subsequent Acquisition (#Finders and #Converters)
 Finder of property has title against all but the original owner
o Armory v. Delamirie – chimney sweep finds jewel, jeweler takes jewel.
Chimneysweep has better title, gets to keep it (F1 > C1)
o Why? Rewards labor, closest to owner, administrability
 When one party has possession, has stronger claim than any subsequent possessor
Clark v. Maloney – found logs and possessed, floated down river to second finder.
First finder has better claim (F1 > F2)
o Possession must be established in the first place
Rule of prior possession applies even if first possessor is converter
o Anderson v. Gouldberg – Converted logs when cut down, another converter
seizes. First converter has better right (C1 > C2)
o Why? Rewards use, keeps closer to owner, discourages subsequent conversion
o

#Creation
 Hot news doctrine: quasi-property right of news producers where product is free to
public but protected against use by competitors (INS v. AP)
o Court awards labor, avoids rule that would disincentivize publishing news
quickly (labor desert theory/fairness)
 #Intellectual property:
o Copyright: original work produced by an author. Last for life of author +70
years
 Confer limited monopoly, meant to serve progress (rewards originality)
 Registration optional, automatically protected once written down
 Requirements (Feist):
 Fixed in tangible medium (no ideas)
 Originality (creativity/inevitability)
 Feist Publications – copyright protection does not extend to facts,
compilations of facts only when shows level of creativity
 Rejection of labor desert theory – not just work, but
creativity/ingenuity
 Fair use doctrine (allows limited uses of copyrighted material):
 Purpose/character of work (transformed? Value added? Parody?)
 Nature of copyrighted work (fact/fiction? Published/unpublished?)
 Amount/substantiality of portion taken
 Effect of use on potential market
o Trademark: words, phrases, symbols or designs that identify or distinguish
source of good/service. Can be renewed as long as using or unless becomes
generic
 Generic / descriptive / suggestive / fanciful or arbitrary (least safe
 most safe)
 Genericide can lead to losing trademark (see Velcro)
 Can trademark as long as secondary meaning + exclusive use won’t put
competitors at a disadvantage/won’t impact cost, quality, or something
essential to product’s use/purpose
 Qualitex v. Jacobson – allowed to trademark color b/c second
meaning, won’t disadvantage competitors or industry
o Patent: protections for inventions/discoveries/procedures developed (scientific
domain). 20 year term
 Patent process rewards not just labor, but seeks to encourage/incentivize
progress
 Requirements for valid patents (Diamond v. Chakrabarty):
 Patentable subject matter (cannot be naturally occurring)
 Utility – must have some beneficial use
 Novelty – must be newly created
 Obviousness
 Disclosure
Living things are patentable as long as non-naturally occurring,
must be made by man (but not plants) (bacteria in Chakrabarty)
 Myriad Genetics – naturally occurring gene cannot be patented (but
synthetic version of gene can)
 Difficulty of discovery is irrelevant
Traditional knowledge
o Traditional knowledge often used for scientific discoveries but not compensated
when awarded patent to researchers (quassia amara case study)
o Why protect traditional knowledge?
 Equity/fairness
 Protection of native biodiversity
 Preservation of traditional practices
 Prevention of bio-piracy/encouragement of voluntary sharing


#Intangible Resources (Personhood/Publicity)
 Personhood: no ownership over body part after intended abandonment, but
doctors must disclose any interest unrelated to health in obtaining body part
o Moore v. Regents – took cells to create profitable cell line w/o telling interest,
breach of fiduciary duty but no conversion b/c not property
 Arabian concurrence: immoral to place property interest in human tissue
 Mosk dissent: can and should have some rights to body (not right to sell),
bundle of rights subject to limitations
o Why this rule?
 Incentivize development and intention
 Effects down the line of making body one’s property/needing permission
 Institutional capacity – question for the legislature
o Market Inalienability (Radin): supports anti-commodification,
commodification is problematic b/c
1) Coercion argument (prophylactic): not true choice to commodify, likely
that have been coerced (so prevent possible forced transfer by outlawing)
2) Moral/rhetorical argument (assimilation to prohibition): immoral to
allow some things to be commodified, market rhetoric can be harmful in
itself
3) Domino argument: commodification of some will lead to
commodification of most/all
 Counterargument: preventing commodification could disempower people
who would benefit from it, redistribution/welfare response would be
preferable
o Modern law re: body parts
 Hecht – frozen sperm cells are property, subject to probate court after
death (stronger property interest in replicable sperm cells)
 Newman – next of kin have quasi-property right in controlling disposal of
body/use of body parts
 Conroy – no duty of institutions to use donated cadavers in certain way,
next of kin can’t dictate how disposed of
 Right to publicity: right to control use of one’s likeness for commercial use
o Midler v. Ford Motor Company – likeness as property right, can’t appropriate
voice for commercial ends
o White v. Samsung – right to likeness extends to images that evoke the
identity of a celebrity
Kozinski dissent – stifles ability to replicate image/creativity, too far
reaching, not easily administrable
Harvard daguerreotypes: when do we protect artists and when do we protect
subjects? Is property the right remedy for historical wrong?

o
#Natural Resources
 Ad coelum: landowner owns everything from heavens to earth
o In reality, this is limited by regulation/servitudes)
 Common access resources
o Tragedy of the open access commons: people act self-interestedly when using
shared resources, contrary to common good
 Ostrom: responses to commons problem
 Central authority decides (Leviathan)
o Downside: high admin costs
 Privatize the commons (divide into parcels)
o Downside: high setup costs, concentrates risk (only one
will bear previously shared risk)
 Closed-access commons/communal ownership
o Group needs to be regulated, so usually restricted to
members of community
o Governed by social norms (lobster gangs) or contracts, or
combination of initial right + norms
 Tradeable access – define rights to access resource, allocate,
allow to be traded (ex. Cap + trade)
 Anticommons – resource where everyone has too much right to exclude,
creates suboptimal use of resources/limits efficiency
 But can be positive (see NYC parks widely deed preventing
development)
 Semicommons – coexistence of private and shared property, best
benefits use of resource of society
 See medieval fields farmed privately/communally grazed
 Still risks opportunistic behavior/need to police
o Responses to the commons problem
 Lobster gangs of Maine (closed-access commons) (Acheson): quasicommunal ownership of waters, gangs have areas and retaliate if
intruded
 Conditions needed:
o Small number of extractors w/ shared
background/history/traditions
o Extensive norms/communication
o Repeat players with contract-like obligations
o Stable value of resource
 Demsetz: property rights develop to internalize externalities when the
gains of internalization become larger than costs
 Externality: consequence of activity not borne by person creating
the consequence
o We want people to bear the costs, shifting = internalization
 Property rights develop naturally to internalize externalities when
gains become greater than costs (see fur trade)
 Problems with thesis:
o Initial distribution is difficult/allocation problems
o Intertemporal externalities (ex. Climate change)
Georges Bank: commons problem created by technological
shift/development, community stress caused by closed commons (and
decoupling rom indigenous customs)
Rose (Comedy of the Commons): good comes from leaving resources open/in
public control
 Some things get better with common use (ex. Recreation)
 Public claim to certain property increasingly recognized by courts
(roadways, lands under navigable waters)
 In contrast to Demsetz (tending towards privatization), at least some
place for public/shared ownership

o



Water
o Eastern states have riparian system: those with land adjoining flowing water
are entitled to reasonable use of that water/natural flow
 Evans v. Merriweather – use preventing downstream use not reasonable
 Natural wants (household/drinking) stronger than artificial wants
(irrigation/power) – can’t interfere w/ natural
 Court will balance hierarchy
 NOT use it or lose it, can always reclaim (usufractory)
 Riparian rights are appurtenant – tied to land, can’t be alienated
o Western states use prior appropriation system: first person to use water
entitled to use it, even if none left downstream, so long as use considered
beneficial
 Coffin v. Left-Hand Ditch – co with dam has right to use water over
riparian farmers bordering river
 Right terminates if beneficial use stops, limited right to transfer
 Follows Demsetz: rarer resource  higher value  private property
 Policy considerations: labor desert, administrability
Oil & Gas
o Rule of capture: unextracted mineral belongs to property owner, but if reduced
to possession by someone else, belongs to them
 Hammonds v. CKG – gas pumped back into empty reservoir not trespass,
once released back into natural habitat becomes unowned/mineral ferae
naturae
 BUT they still possess it on their own land
 Policy considerations: reduce liability for oil companies, reduce unearned
benefit to landowner, incentivize more drilling
Things that Can’t be Owned (Doctrines Preventing Privatization)
o Navigation Servitude
 Servitude: right by which something owned by one person is subject to a
specified use or enjoyment by another
 At English common law, cared about whether
o Water tidal – determines right to fishing
o Navigability – public right to navigable waters
 American law recognizes:
 Federal Navigation Servitude: commerce clause entitles
federal government to use of navigable waters for interstate
commerce
 Statutory Navigability: often intersects w/ navigation servitude,
but uses navigable as statutory term to extend reach (see Clean
Water Act)

o
o
Public Trust Navigability: when water is navigable, no
individual or corporation can interfere w/ public’s paramount right
to use water. Each state can define navigability
 Causby v. US – federal navigation servitude in air, flight can’t be
unreasonably low to interfere w/ reasonable use of land but above certain
height air is public
 Administrability concerns – avoids having to get permission from
all surface owners for flight paths
 Conflicts with ad coelum doctrine
Public trust doctrine
 Right of the public to shared resource that should be controlled by the
government, requires government not to cede control of that resource
 Can apply to waterways, airspace, environmental conservation
(maybe even IP)
 Illinois Central RR v. IL – state does not have power to grant lands
held in public trust (land under navigable waters) b/c land held in trust
for public
 Legislature as trustee, public as beneficiary – must act in best
interest of the public
 Concerns: best use of property? Anti-democratic?
Custom
 State Ex Rel Thornton v. Hay – public can obtain a customary claim for
the public right to use a resource without obstruction
 Test for whether entitlement exists by custom: claim must be
 Ancient*
 Continuous without any gap*
 Peaceable without interruption/conflict
 Reasonable (common, does not offend, not disruptive)
 Certain (clear boundaries)
 Obligatory (everyone bound by it)
 Not inconsistent with other laws/customs
 Contrast with Ghen – limited custom to small, easily definable group of
people
II.
THE ENTITLEMENTS OF PRIVATE OWNERS
Principle of #Accession (Ambiguities re: Boundaries of an Asset)
 Principle of accession: we should award unowned things to the owner of the most
prominent thing to which ownership has been established
 Increase
o Ownership of the offspring of an animal awarded to the owner of the mother
o Justifications: psychological (closeness/proximity) and utilitarian (mother can
rear)
 Accession doctrine (who gets to keep an improved thing between the OG owner and
the improver?
o Weatherbee v. Green – man who thought he owned trees in good faith gets to
keep the wooden hoops he crafted from them b/c significantly improved the raw
material through his labor
 If find for improver, OG owner still gets damages for value of initial
material
o 3-factor test to determine who gets to keep it:
 Mental state of improver (took the thing in good or bad faith? If bad,
must return)
 Degree of transformation (must be transformed in some way)
 Relative value contributed by each (less value, less likely to prevail)
o Reasoning: administrability concerns, labor-desert theory (should not reward for
work not done)
 Ad coelum (owner has right from depths to the heavens)
o Edwards v. Sims – survey of caves allowed b/c surface owners have right to caves
underneath, despite Edwards’ discovery/exploration/improvement
 Dissent: ownership requires affirmative acts of possession, must act to get
rights to subsurface. Should give right to person w/ entrance
o Contrary to labor-desert theory, awards simple ownership of surface land
 Accretion and avulsion
o Accretion: the gradual shift in course of a waterway. Boundary moves with
waterway, middle continues to be the boundary
o Avulsion: sudden and pronounced change in flow of waterway. OG boundary
remains the same
o Nebraska v. Iowa – most of boundary changes with flowing river, except Carter
Lake which constitutes avulsion so boundary remains the same
 #Fixtures
o Fixture: personal property so attached to real property that becomes real
property itself
o Strain v. Green – things screwed into walls constitute fixtures
o Decision rules for determining what is a fixture:
 Subjective intent of parties – what did parties intend to be a
fixture/removable property?
 Problems of proof, can reward shady behavior
 Objective intentions of parties – what would a reasonable buyer or
seller intend under the circumstances?
 This is the rule favored by the court
 Look to custom: would this class of items be included regularly in
home of this price?
 Default rule, but can K around
Bolted to the wall test – if can’t be removed without causing damage,
courts will treat as a fixture
Ratione soli (by reason of ownership of the soil) – owner of land gets all of the things on
that land


#Trespass (The Right to Exclude)
 The rights to exclude, use, dispose are key property rights in the owner’s bundle of sticks
 Trespass: an intentional tort for which liability attaches as long as entry on the land
does not have the consent of the party in possession
o Jacque v. Steenberg Homes – trespass is committed whenever someone
intentionally enters land, no required showing of harm to support punitive
damages (nominal damages can support)
 Intent to act required, not intent to trespass
 Harm in trespass is the loss of the right to exclude
o Bright line rule: makes easy to administer, strengthens property rights, deters
violence and self-help, allows for bargaining
o Exclusion/governance theory:
 Exclusion rules work better when no repeat interactions
 Governance rules work better when set of people with repeat
interactions, no opportunity to change interactions
 But trespass only when interferes w/ owner’s reasonable use of possession
o Hinman v. Pacific Air Transport – air above property cannot be owned, open to
public use. Entitled only to space actually possessing and what owner might
reasonably make use of
 Exceptions to the right to exclude:
o Necessity (Ploof v. Putnam) – one in peril has claim to property superior to that
of an owner to exclude
 Can apply to natural disasters, fleeing from assailants, rescue of property
 Must be actual necessity, not just impracticable
o Custom (McConico v. Singleton) – court will recognize a privilege of entry where
longstanding custom (hunting on unenclosed land)
 Can overcome presumption by posting no trespassing sign
 PP: want to incentivize hunting, access to food for larger number of
people
 Encroachments
o Encroachments are a classic example of a bilateral monopoly: only one 1 seller
and 1 buyer, if one or both stubborn/trying to bargain strategically, may never
reach a deal or only after much negotiation  high transaction costs
 Good opportunity for a governance-based rule – small number of
people, sunk investment, neighboring properties
o Golden Press v. Rylands (majority rule) – where removal would be
unconscionable, encroachment may stay but have to pay damages if
 Unintentional, good faith encroachment (here, error based on faulty
survey  good faith encroachment)
 Slight damage to P’s interest
 Grave hardship to D
o Pile v. Pedrick (minority rule) – no legal right to build onto land of another, will
issue injunction forcing to remove encroachment (court orders to tear down wall
over property line, split the costs)
 Public Policy Limits on the Right to Exclude
o Common law/court-made
State v. Shack (NJ) – property owner cannot exercise right to exclude to
interfere with fundamental rights of migrant workers, property rights
yield to human rights concerns
 Sic utere: use your property in a way not to harm others
 Adopts standard: balance interests of the individual landowner against
social interests (instead of bright line rule)
Statutory (Fair Housing Act, Civil Rights Act of 1964 – limits right to exclude
on the basis of race)
Constitutional
 Shelley v. Kraemer – state courts cannot enforce discriminatory
restrictive covenants against Black homeowners
 What does this mean for HOAs? Prohibitions on signage/political speech?

o
o
#Licenses and #Bailments
 Because property owner has sovereignty over property, can also choose to include or
choose who can be included
o Licenses temporarily waive right to exclude
o Bailments temporary transfer possession of property to another
 Licenses
o License: permission given to come onto property from owner to another on
certain terms (temporary and revocable waiver of right to exclude)
o Wood v. Leadbitter – licenses are always revocable at the discretion of the
owner, do not give licensee any property rights
 Bailments
o Bailment: transfer of private property by one party (bailor) of possession, but
NOT ownership, to another (bailee) for a particular purpose
 If bailment relationship proven, can recover for damage/loss if bailee was
negligent
 Bailments can be express or implied
 Powerful relationship: can overcome express disclaimer in K
o Allen v. Hyatt Regency – parking car in garage constitutes a bailment b/c
 Level of service provided (attendant at exit booth)
 Security measures
 Garage owners sometimes move cars
 Car was “delivered into custody” (ticket required to exit, access to garage
limited by D)
Right to #Abandon
 Abandonment: parting with property to no one and with no intention of resuming
ownership
 Real property cannot be abandoned (Pocono Springs Civil Assn v. MacKenzie)
o Why? Want property to be used/in circulation, don’t want to incentivize bad
behavior like decreasing value of property/polluting and abandoning
 Personal property can be abandoned (often social signaling plays a role, ex. Furniture
left on the curb) – just show no intention of reclaiming
o See Popov – once ball abandoned, subject to someone else establishing possession
Right to #Destroy
 While owner technically has right to destroy, courts will often constrain in order to
preserve public benefit/prevent dead hand control
Dead hand control: when dead property tries to exert control over living, court
frowns upon
Eyerman v. Mercantile Trust Co – court refuses to enforce owner’s will calling for
destruction of house on public policy grounds (would decrease value of property,
surrounding property values, aesthetics)
o Court prioritizes efficiency over autonomy/property rights
Historic preservation often constrains right to destroy
o Federal law: relatively powerless/surmountable
o State and local preservation law: more legitimate, can create incentives for
upkeep or preservation
o


#Adverse Possession
 Adverse possession is a powerful limit because it strips the owner of all rights to their
property
o Vocab:
 Action to quiet title: action seeking judgment to establish title to
property against anyone and everyone (quiet any challenges)
 Action for ejectment: civil action to recover possession of/title to land
from one wrongly in possession
 Quitclaim: Allocates responsibility/liability for any problems to buyer
 Warrantee deed: guarantees validity of title
 Adverse possession test (adverse possession when these factors satisfied):
o Actual (adverse possessor has engaged in acts of possession)
o Exclusive (adverse possessor is not sharing with the owner or public generally)
o Continuous (years requirement set by statute, possession must be
uninterrupted)
o Open and notorious (adverse possessor engaged in acts giving reasonable
notice to owner that they are claiming possession, owner had opportunity to
contest)
o Adverse/hostile and under a claim of right
 Adverse/hostile: without permission, infringes on property right
 Under a claim of right:
 Subjective test: possessor must have good faith belief that they
have title (some jurisdictions have a higher standard, ex. Color of
title – documents supporting good faith belief)
 Objective test: actions of adverse possessor look like claims of
ownership (don’t care about good/bad faith)
o Peaceable (this factor is uncommon)
 Scott v. Anderson-Tully – Anderson-Tully has right to land by adverse possession
because conduct satisfied all six factors
 Howard v. Kunto – adverse possession can continue throughout multiple owners of
adversely possessed land if there is privity of estate and tacked time meets the
statutory requirement
o Continuity requirement can be satisfied by seasonal occupation if seasonal use
is reasonable (aka is normal for the area)
o To determine if continuous possession over multiple owners:
 Privity of estate: voluntary conveyance of property title
(abandonment/successive adverse possession does not count)
 Tacking: subsequent adverse possessors may tack possession onto
predecessor’s period of possession if in privity
 Why have adverse possession?

o Reward labor
o Reward expectations of what property you own
o Bias towards use and circulation
o Minimization of costs/efficiency/administrability
o Fairness/equity
BUT can create problems of inequity, difficulty in determining, harsh/extreme (takes
someone’s property and gives to someone else)
IV.
THE PRIMARY FORMS OF OWNERSHIP
Shared Ownership by Time
#Estates and Future Interests
 Major policy reasons for estate system:
o Allows some control over the disposition of one’s asset
o Permits people to structure their affairs in a way that makes easy to tell
who owns what
o Prevents dead hand control
o Protects against customization (limits number and variety of ways that
people can be co-owners across people or time)
o Concentration of wealth and hierarchy: concern that people are trying to
keep property in the family for too long, system wants to promote
alienability
 Types of estates:
o Leasehold (non-freehold): very limited in what can do as a tenant
o Freeholds:
1) Fee simple absolute (no future interests)
2) Life estate
a. Reversion (back to grantor – can be explicit or silent))
b. Remainder:
i. Contingent (condition precedent OR unascertained
persons)
1. If fails, reversion to grantor
ii. Vested
1. Indefeasibly vested (no conditions)
2. Subject to divestment (will lose if do something)
3. Subject to open (contingent remainder + a fact –
know at least one person will get it)
3) Fee simple determinable (future interest = possibility of reverter)
4) Fee simple subject to condition subsequent (future interest = right
of entry/power of termination)
5) Fee simple subject to executory limitation (executory interest must
be held by third party, NOT the grantor)
a. Shifting: party with future interest takes directly
b. Springing: gap/condition precedent requiring person with future
interest to take from someone else
i. Note: if person to + condition to be satisfied  FSSEL with
springing executory interest
Type of Freehold Estate
(held by A)
Key Language
Fee Simple Absolute
“To A”
“To A and his heirs”
Future
Interest in
Grantor
(O)
None – this
estate
is
forever!
Future Interest in Third Party
(B)
None – this estate is forever!
The Defeasible Fees
Life Estate
“To A for life”
Fee Simple
(FSD)
Determinable
Fee
Simple
Condition
(FSSCS)
Subject
to
Subsequent
Fee
Simple
Subject
to
Executory Limitation (FSSEL)
“To A”
 Until
 During
 While
 So long as
 As long as
Then
either
no
specification,
or
explicitly back to
grantor (O).
“To A” and then a
separate clause with
these words:
 But if
 On condition
that
 Provided
that
 Provided
however
 If
Then “grantor (O)
has the right to
reenter and retake
the premises.”
“To A,” then upon
something
If it says
nothing
after
“for
life,”
or
explicitly
goes back to
the grantor,
then O has a
reversion.
O
has
possibility of
reverter.
B has some kind of remainder.
If it automatically goes to B, it is
an indefeasibly vested remainder.
If it goes to B only upon some
condition (i.e. graduating law
school, turning 21), or if the
interest is going to a class of
unnamed and possibly unknown
others (i.e., to A, then A’s
children), it is a contingent
remainder.
 Note: if we know for a fact
that there is a child C that
belongs to A’s children, C
is considered to have a
vested remainder subject
to open.
 If fails, reversion to O
If it goes to B automatically, but B
can lose it (look for “unless” or
“but if” and something that
happens later), then it is a vested
remainder subject to divestment.
 Note: death is unique/will
not divest
N/A
O has right
of
entry/power
of
termination.
N/A
N/A
Executory interest (shifting or
springing)
happening, it goes to
a third-party (not
the grantor/O).
OR, O directly to B,
but something has to
happen for B to get
it.



Shifting: B takes directly
Springing:
gap
OR
condition requiring B to
take from someone else
(usually grantor)
Note that this interest can
also appear separate from
the FSSEL to cut short a
future interest of O, e.g., a
reversion: where person
after “to” is not the
grantor,
give
away
property interest once
condition satisfied
Doctrine of #Waste
 Waste: any act of the life tenant that does permanent damage to inheritance
o Default rule that can be contracted around
o Applicable not just across time but between co-owners
 Doctrine of waste: holder of present interest must use property reasonably so
as to transfer in its current condition to future interest holder
o Brokaw v. Fairchild – tenant in life estate cannot exercise acts of
ownership that would prevent transmission in current condition to next
holder (can’t build apartment buildings on site of mansion)
 True even if change would maximize use/significantly increase
economic value
 Rare area where dead hand control is protected, property
autonomy prioritized over alienability
 Exception: circumstances so altered that conditions can’t be
upheld, K around in agreement w/ person with future interest
 Types of waste:
o Affirmative waste: person does an actual act causing permanent
damage
 Ameliorative waste: do something that enhances market value
of the property, but violates the subjected value attached by future
interest holders
 Can seek an exception, e.g. if no longer suited to this kind of
use/changed circumstances (see Melms v. Pabst – last mansion
left)
o Permissive waste: omission to care for property in an adequate way
(implies obligation to maintain property)
Restraints on Alienation
 Courts disfavor restrains on alienation, so will try to void those conditions
while preserving survivable parts of a grant
o Mountain Brow Lodge v. Toscano – outright ban on sale is restraint on
alienation so voided by court, but retains other conditions (restriction on
use – construes as FSSCS)
 If grant does not use the language of system of estates and future interests, court
will read language into it to make it fit
Shared Ownership by Title
Forms of #Co-Ownership
 Tenancy in common:
o Each tenant has separate but undivided interest in property
 Separate: independently descendible/conveyable/divisible (each
party can sell/transfer)
 Undivided: each has right to possess the whole (no requirement
of equal shares of ownership – can have different profits from
sale/rent, but equal right to use whole)
o Property used as tenancy in common usually attachable to creditors, can
convey interest to third party/heirs
o Prerequisites for creation: concurrent possession
o Presumptively created for persons nor married but in concurrent
possession OR if to “A and B”
o NO right of survivorship
 Joint tenancy:
o Separate and undivided interest, but each joint tenant has right of
survivorship
 Right of survivorship: if one dies, surviving tenants
automatically get the interest
o Prerequisites for creation: four unities
 Time – interest acquired at same time for all joint tenants
 Title – each acquires by the same instrument/joint adverse
possession
 Interest – all have same interest (fee simple, life estate, etc.)
 Possession – each has right to possess the whole
o Creation: requires specific language (ex. “To A and B as joint tenants”)
o Fragile form of ownership – if any unity destroyed (ex. Through sale) joint
tenancy severed  turns into tenancy in common
 Tenancy by the entirety:
o Additional requirement to JT: marriage
o Difficult to terminate without a divorce
o Choose this form because
 Automatically transfers (survivorship)
 Can protect from creditors if joint tenant has liens, etc.
#Partition
 Action by TC or JT seeking to terminate co-ownership, automatic on request
 Types of partition:
o Partition in kind: property divided equitably and fairly (Delfino)
o Partition by sale: property sold and money divided (most states favor)
 Delfino v. Vealencis – partition in kind will be preferred unless
o Physical attributes of land make partition impracticable, and
o Interests of parties better served by partition by sale
 This is rare – most states prefer partition by sale (tends to be houses, so hard to
divide land)
#Ouster, Contribution & Accounting


Ouster: cause of action where one tenant functionally excluded from property
where had right to possess the whole
o Excluder gets sole possession, ousted party can sue for an accounting –
share of rents and profits from common property
o A contribution can reduce the amount awarded after an action for
accounting with the pro rata share of expenses
Gillmor v. Gillmor – physical exclusion OR acts that necessarily exclude
the co-tenant constitute ouster, eligible for an accounting (but will also conduct
contribution)
Heirs Property
 Heirs property: when person died intestate, estate becomes co-owned by heirs
 Because 1/3 black-owned land in heirs property, consequences:
o Hard to use property as collateral for loans
o Harder to be eligible for disaster relief
o Costly to settle title
o Only 1 owner can initiate partition (even if many co-owners)
Security Interests & #Mortgages
 Security interest: relation between debt and asset that entitles holder of debt
to certain rights with respect to the asset (speedy remedy/property right to sell
collateral/right to proceeds from asset if seller goes bankrupt)
o Security interests are the key to facilitating flow of investment
capital by providing form of security for loans
 Real estate mortgage: get title but lien on property, right to foreclose if don’t
make payments and pay interest
o Not actual conveyance – void transfer to lender/bank once paid
o Old version: give title to mortgager as security for debt, regain upon
payment (title theory)
 Severance: a joint tenant can sever unilaterally, becomes TIC and no more right
to survivorship
o Sale of interest creates severance
o Harms v. Sprague – mortgage loan does not sever joint tenancy
AND mortgage taken out by one tenant does not survive the death of a
joint tenant (vanishing interest theory)



(1) Title theory – mortgage severs JT and survives death = TIC
lien
(2) Lien theory – Mortgage does not sever JT, but still burdens or
‘clouds’ the title and becomes due upon sale = JT + lien
(3) Vanishing Interest Theory = Mortgage does not sever JT, does
not survive death (approach in Harms) = FSA
Duty to Disclose
 Duty to disclose is set by statute, but remedy for breach of duty can be severe
(damages or even getting out of the contract of sale)
 Stambovsky v. Ackley – buyer entitled to rescission of sale when seller failed to
disclose that house was “haunted as a matter of law”
o Usually caveat emptor, but no way for buyer to physically inspect
property to find out
o Punishes seller for creating reputation, makes blameworthy for effects
V.
OTHER FORMS OF OWNERSHIP
#Leases
 Characteristics of leases:
o Financing devise: O lends possession to T for rent
o Risk-spreading device: T minimizes investment into asset, L spreads risk
through ability to evict and replace T for default
o Mechanism for integrating and managing complexes of assets: governance
scheme, allows for specialization = lower transaction costs
 Why get a lease?
o Avoids burden of ownership
o Helps to avoid taxes/tax complications
 Types of leaseholds:
o Tenancy for years/term of years – lasts for a fixed period of time
 Always created by express agreement
 Terminates at end of term, no notice required
o Periodic tenancy – fixed duration continuing for succeeding periods until
either party gives notice of termination
 Can be express OR implied
 Ends by notice from one party at least equal to one period (often
superseded by statute)
o Tenancy at will – no stated duration, lasts as long as both parties desire or
until one dies
 Created by express agreement: for pleasure/right to terminate at any time
 Terminates when one displays an intent to end or death
o Tenancy at sufferance – only created when T wrongfully holds over (stays
beyond terms of L)
 Created when lease expires but continues to occupy (never by writing)
 Can be terminated by eviction OR if L accepts payment, in which
periodic tenancy created
Type of Lease
Definition
Creation
Tenancy for Years
Tenancy that lasts for
some fixed period of
time (doesn’t actually
have to be years)
Tenancy for a fixed
period that continues
for succeeding
periods until either
party gives notice of
termination
“To A for 10 years”
Express agreement
Periodic Tenancy
Termination
(can be overruled by
statute or individual
agreement)
Ends at conclusion of
stated period without
need for notice
“To A for month-tomonth”
Ends by notice from
one party at least
equal to one period
“To A with rent
(Common law
payable on the first of exception: if period is
every month”
≥1 year, then 6 mos.)
Can be express or
implied from rentak
Often superseded by
statute
Tenancy at will
Tenancy at
sufferance

payment terms
(“payable monthly”)
Tenancy of no stated “To T for and during
duration; lasts as long the pleasure of L”
as both parties desire
or until one dies
“To T, with both L
and T having right to
terminate at any
time”
Only created when T Lease expires but T
wrongfully holds
continues to occupy
over (stay beyond
the land. Never
term of L)
created by writing.
One party displays an
intention that the
tenancy should end or
one party dies
1) Eviction
2) L accepts payment
in which case a
periodic tenancy is
created
Duties of landlords and tenants:
o Duty to pay rent (T duty)
 Paradine v. Jane – duty to pay even when can’t make income from land
b/c made impracticable by occupation (tenant gets boon but also bears
risks of unforeseen losses)
 Independent vs dependent covenants:
 Independent covenant: promise to pay rent independent of
other promises, breach of one promise does not affect duty to pay
rent (old model)
 Dependent covenant: breach of covenant on one side may
trigger release of duty/liabilities of other covenants (modern view)
 Sutton v. Temple – T has to pay rent even if land does not serve its
intended purpose (no implied warranty of fitness of pasture land)
o Duty to deliver possession (LL duty)
 LL warrants that they have a legal right to possession and can
transfer to the tenant (breached if someone else has paramount title)
(nemo dat)
 Implied warranty of fitness (minority rule): L has to deliver thing fit
for T’s use if knows or reason to know of particular purpose for which
item is being purchased (opposite of Sutton)
o Covenant of quiet enjoyment (T right)
 Tenant has right to quiet enjoyment without interference
 Breach can occur by either actual or constructive eviction (by
fault of LL, substantial interference w/ tenant’s use and
enjoyment)
 Can be waived in lease
 Blackett v. Olanoff – nightclub’s noise interfered w/ quiet enjoyment, LL
had power under lease to control and failed  constructive eviction and
don’t have to pay rent
o Implied warranty of habitability (T right)
 LL has duty to deliver habitable premises and maintain in habitable
condition (up to code)
 Warranty cannot be waived by K (only one)



Also applies to codes enacted after lease begins
Can be defense to nonpayment of rent OR action for specific
performance/damages for breach
Javins v. First National Realty – implied warranty of habitability applied
to housing contracts, housing code violations may void K
Common Interest Communities: #Condos and #Coops
 Common interest communities: owners have individual possessory in fee simple
within units, but shared facilities/common spaces
 Cooperatives:
o Coop characteristics:
 Title to land/building held by a corporation
 Governing document is articles of incorporation
 Residents own all of the corporation’s shares of stock, governed through
an elected board of directors
 Each resident has a long-term renewable lease
 Each resident is both an owner and a tenant of the corporation
 One mortgage for property shared by all tenants, causing owns to
scrutinize new members with extreme closeness
o Business judgment rule: courts exercise restraint and defer to Board decision
as long as decision within scope of authority, serves corporate purpose, and
made in good faith
 40 W 67th St. v. Pullman – even where board decision to evict someone,
Court will defer to board decision (treats coop board like a business)
 Condominiums:
o Condo characteristics:
 Governed by master deed or declaration of condominium (submits land
to state law)
 Each unit owned separately in fee simple by individual owner
 Exterior walls and common areas owned by unit owners as tenants
in common
o Nahrstedt v. Lakeside Village Condominiums – court will uphold contractual
obligations limiting condo owners as long as had notice of restrictions
 For CC&R (not master deed) and later governance restrictions, determine
if reasonable (determined in reference to community as a whole, not
individual owner)
 So court allows restrictions even where owner ostensibly owns interior in
fee simple (K over individual ownership rights)
 Possible exception if restriction is against public policy OR arbitrary
 Rule for governance rules: will uphold as long as rule is reasonable for
the complex as a whole
 Residential associations:
o Defined as a matter of state law
o Standalone units with certain facilities in common with other units
o Likely to be governed by CC&Rs (rules that can be modified by
procedure/governing entity)
o Contract and governance restrictions (governing body can pass binding rules)
#Fair Housing Act (p. 404)
 Extreme and pervasive discrimination in housing, courts and legislature intervened
See redlining – FHA insured mortgage loans so lenders would give loans, but
explicitly refused to insure mortgages for black/integrated communities
o Shelley v. Kraemer – judicial constraint on discriminatory covenants,
characterized enforcement as state action
o FHA – placed statutory limitations on racial discrimination/discrimination
against people with disabilities in housing
 Has since been expanded to apply to sexual orientation (Smith v. Avanti)
FHA places restrictions against discrimination in:
o Availability of housing
o Terms and conditions on sale/rental
o Availability (can’t lie to people about whether something is for sale)
o Blockbusting
o Disabilities
Mrs. Murphy exemption: restrictions don’t apply to rooms in owner-occupied
dwellings with fewer than four units
o Exception: still subject to advertising requirements (no exceptions to bar on
discriminatory advertising)
Fair Housing Council v. Roommates.com - FHA does NOT apply to roommate selection
o Why? Legislative intent reading of FHA – would not have intended to apply to
communal living, should be able to choose who share communal spaces with
o



Entity Property: #Trusts, Corporations, and Partnerships
 Entity property: create separate entities that hold property, create new obligations,
and permit different parties to exercise different duties w/r/t the property
 Trusts
o Trust: an arrangement where one person holds full title to property for the
benefit of another person, who may direct the management and use of
property
 Created by writing (usually will or transfer)
o Structure of trusts:
 Corpus/res is the asset or collection of assets that make up the trust
 Settlor is OG owner who grants to a trust
 Trustee owns title, responsible for managing, investing, and
protecting the asset
 Sole trustee can NEVER be a beneficiary
 Beneficiary receives the benefit, no possessory or managerial interest
(usually receive distributions of income)
o Types of trusts:
 Revocable trust – can be terminated, assets not protected from creditors
of settlor
 Irrevocable trust – can’t be revoked (many are testamentary), because
settlor can’t access assets are protected from creditors of settlor
 Spendthrift trust – used to restrict beneficiary’s access to trust
principal. Because beneficiary can’t access, neither can her creditors
o Why have trusts?
 Permit specialization of function, shield assets from creditors
 BUT permit wealth hoarding, prohibit taxes  accumulation of wealth
o Fiduciary duty: trustees have a duty to manage the trust in a way that
comports with the best interests of the estate/beneficiaries
 Rothko v. Reis – trustees violated their fiduciary duties by selling Rothko
paintings, court imposes severe damages
Self-dealing is always a red flag of breach of fiduciary duty
 Implicates no further inquiry rule: will rescind sale/contracts
as soon as see self-dealing w/o further inquiry
o Cy Pres rule: conditions of a trust should be interpreted as near as possible to
the donor’s charitable intent when literal compliance is impossible
 Requirements for application of cy pres:
 General charitable intent (must be devoted to the
accomplishment of purposes beneficial/supposed to be beneficial to
community). Consider factors:
o Purpose of social interest that justifies dedication of
property to purpose in perpetuity
o Whether persons to benefit sufficiently large/indefinite
class to give rise to community interest
o Whether trust advances religious, educational,
governmental charitable interests of community
 Specific charitable intent either impossible, violation of public
policy, or rendered problematic by changed circumstances
 Wilbur v. Owens – because settlor had general charitable intent
(advancing science) and specific charitable intent is impossible
(publishing papers), Princeton can use funds for general scientific
research
 If no general charitable intent found + specific intent impossible, will
disband trust  discretion to trustees (guided by state laws)
Corporations and partnerships
o Alternative entity property device where corporation holds assets,
shareholders own the corporation
o Why create a corporation/partnership?
 Separate management and beneficiaries
 Shields partnership/corp assets from creditors of individual shareholders
 Allows for specialization where officers exercise specialized functions


VII.
TITLE RECORDS AND PROPERTY TRANSFER
#Demarcation and Transfer Principles
 Land demarcation:
o Metes and bounds system: boundaries marked using
monuments/landmarks (rocks, trees, etc.), prevalent in eastern states
 Prone to mistakes, but customizable to topography
o Rectangular survey: boundaries set by centralized/uniform survey system
 More uniform/easy to determine boundaries, but does not consider
topography
o Libecap and Lueck Thesis: M&B produces more irregularities than
rectangular system, per acre land value higher in rectangular system + lower
enforcement/transaction costs  larger net benefit for economic/population
growth
 Nemo dat: no one can give that which he does not have
o Baseline rule in property that ensures no one can get more/less than the prior
person had
 First-in-time approach: first in time is prior in right
 Promotes alienability of property, ease of transfer
o Kunstsammlungen zu Weimar v. Elicofon – owner of stolen painting does not
actually own them because OG thief had no title to give away
 Theft always severs good title, can’t be rehabilitated
 BUT good faith purchaser exception (UCC §2-403): a person with voidable title
has power to transfer good title to good faith purchaser for value
o Voidable title is a term of art that includes following acts:
 Transferor deceived re: identity of the purchaser
 Bad check
 Transaction was a cash sale (transfer or possession with expectation of
immediate payment)
 Larcenous fraud under state criminal law (catchall character)
o Good faith purchaser: evaluate facts to determine whether person receiving
voidable title did so in good faith (did they know?)
o For value: must have bought the item, no gifts
o Kotis v. Nowlin Jewelry – voidable title transferred (bad check), but exception
does not apply b/c Kotis was not a good faith purchaser
#Recording Systems
 Types of recording systems:
o Land recording (US): central repositories maintained by local government
where deeds are collected and maintained/indexed
 No verification/insurance of document authenticity (hence title insurance
industry has grown)
o Land registration/Torrens (everyone else): state guarantees title, maintains
fund that compensates if error
 Higher cost system, but allows for better maintenance/record keeping
 Title search:
o Run back through grantee index to find links in chain of title back to root of title
(set by Marketable Title Act at fixed number of years)
o Run forward through grantor index to follow chain
 Types of recording acts
o Race: winner of race to record wins
Exception to nemo dat – can give away to multiple people, first person to
record title has ownership
o Notice: last GFPV wins unless had notice of prior purchase (actual or
constructive)
 Recorded interest constitutes constructive notice
o Race-Notice: last GFPV wins ONLY IF no notice and records first
 If no one recorded, nemo dat
 If someone records, last GFPV
Adverse possession need not be recorded to be valid against a good faith purchaser
(Mugaas v. Smith)
o If adversely possess land, title becomes perfect (supersedes OG title prior to good
adverse possession claim)


IX.
LAND USE CONTROLS
Rights of Neighbors
 Land use controls: doctrine that controls incompatible uses of land
o Nuisance liability (akin to tort)
o Servitudes (akin to contract)
o Zoning (akin to regulation)
 Rights of neighbors = nuisance and servitudes, zoning + conservation easements are
imposed
#Nuisance
 Nuisance (CL): an activity by a neighbor that unreasonably interferes with another’s
use/enjoyment of their land
o Restatement: activity that constitutes a substantial non-trespassory
invasion of one’s use/enjoyment of land caused by either
 Negligent/reckless/ultrahazardous activities or
 Intentional + unreasonable activities
o Nuisance does not care about motives/spite (one exception: spite fences)
 Common elements of nuisance:
o Interference is substantial/significant (can be economic or physical damage)
o Intent: knew/should have known conduct involves serious risk or likelihood of
interfering with another’s use/enjoyment
o Interference is unreasonable (often look to community norms/characteristics of
neighborhood, balance social harm against social good)
o Ultrahazardous/abnormal/reckless activity (very high bar)
 Nuisance vs trespass:
o Many jurisdictions now blend trespass and nuisance torts (modern theory)
 No requirement of physical intrusion
 Inquiry into nature of interest harmed
 Conflates negligence and trespass
o Adams v. Cleveland Cliffs (minority/traditional view) – trespass claim does not
cover dust, noise, vibrations, requires a physical intrusion
 Limits trespass to tangible physical invasion, these things are a
nuisance (show requirement of significant harm from unreasonable
interference)
o International Union of Painters v. Great Wash Park – directed light does not
constitute trespass under traditional or modern theory (not tangible, no harm)
 Concurrence: directed light could potentially be brought under nuisance if
assert significant interference with right to use/enjoy own façade for
purposes of using own directed light source
o Intel v. Hamidi – trespass to chattels requires interference with property
constituting physical harm, so no trespass to chattels where no physical harm
 Wasted time does not constitute physical harm
 No nuisance to chattel tort
Servitudes (Easements and Covenants)
 Servitude: contract that binds successors in ownership, run with the land (includes
easements and covenants)
#Easements





Easement: contract in which an owner agrees to waive his right to exclude
certain kinds of intrusions and gives another a right to use
o An easement is not a license or a lease
 Lease = possessory right (easement is just right to use for particular
purpose)
 License = revocable waiver of right to exclude (easement is
irrevocable, gives use rights)
o Irrevocable right (but can be for set term)
o Although deed typically required to grant an easement (writing required),
courts recognize common law exceptions: easements by implication, necessity,
estoppel, prescription
Categories of easements
o Easement appurtenant: benefit belongs to another parcel of land (rather
than another party)
 Creates benefitted (dominant) and burdened (servient) tracts
o Easement in gross: belongs to a person, not a parcel (but transferrable to a
3rd party)
 Disfavored except for specific categories: railroads, billboards,
utilities (judge-made categories)
 Commonly only for short period
 Baseball Publishing v. Bruton – holder of easement in gross for
billboard entitled to specific performance b/c has affirmative right to
use
Affirmative vs negative easements
o Affirmative: permits an action on the servient tract that would otherwise
constitute a trespass (must be affirmative act)
o Negative: permits easement holder to demand servient tract owner desist
from certain acts that might harm them
 Only 5 types recognized: sunlight, airflow, lateral support,
artificial water flow, and view
 American courts will never allow for the creation of a negative
easement by prescription (Fontainebleau v. 45-25)
Public vs private easements
o Public – right to use by public at large
o Private – right to use for particular parties
Types of easements:
o Easement by express grant or reservation
 Written instrument signed by grantor (deed from A  B)
o Easement by implication or necessity (Schwab v. Timmons)
 Easement by implication created only when
 A past common grantor divided land into separate lots
 Prior use on the servient parcel was apparent and benefitted
the dominant parcel (use must predate subdivision)
 Easement reasonably necessary to enjoy the dominant parcel
 Easement by necessity created only when
 Land under common ownership divided into separate lots, one
of which is landlocked
 No way to access a public roadway from the landlocked parcel
o Easement by estoppel
 Created when




Owner of servient creates fiction of lost grant by giving
permission to use (must be express permission, but can be
given by silence)
 Owner of dominant tract relies to their detriment or
materially alters position in reliance of permission
(reliance must be significant)
 Such that it would be inequitable to revoke
 Holbrook v. Taylor – servient tract relied to their detriment on
permission to use road in building house and created material change
in position, because road is only way to access the house would be
inequitable to revoke
o Easement by prescription (Warsaw v. Chicago Metallics)
 No fiction of lost grant (no permission given), but lack of permission
where no one objected to use
 Thus easements by prescription and estoppel are incompatible
 Created when
 Continuous use
 Use that is open and notorious (obvious)
 Adverse/hostile under a claim of right
o Objective and subjective tests – difference is good faith
requirement for subjective
o Granting permission can easily destroy this prong
 *Uninterrupted (some jurisdictions) – no notice from grantor
telling to stop
 Similar to adverse possession, but no actual/exclusive requirements
 Difference: adverse possession is full ownership, easement by
prescription is just use (owner retains some uses)
 Must always be affirmative – no such thing as negative easements
by prescription in American courts (diff from England – see ancient
lights doctrine)
Scope of easements: when someone is using an easement for one purpose and wants
to use it for another, determine the original intent of the parties
o How was the easement created (express or implied/prescriptive/estoppel)?
o What changes in use might reasonably have been foreseeable?
o Extent of changes required to preserve usefulness of dominant tract
o Harm caused by change in use to servient tract
Termination:
o If easement by necessity, terminates when necessity ends
o Merger (dominant and servient tract come under common ownership)
o Adverse possession of an easement by servient tract owner
o Abandonment (prolonged non-use)
o Completely obsolete purpose
o Deed extinguishing easement signed by both parties
Misuse: bright line rule that an easement cannot be used for anything other
than the dominant parcel
o Penn Bowling v. Hot Shoppes – misused easement appurtenant when used
for the benefit of another parcel
o Misuse won’t destroy easement, but will be enjoined to prevent use for the
benefit of any other parcel
#Covenants


Covenant: owner agrees to abide by certain restrictions on their use of land for the
benefit of others
o Covenants always run with the land
o Must be created by writing
o Can be affirmative (burdened promises to do something) or negative (burdened
party promises not to do something)
Types of covenants:
o Real covenant: promise enforceable at law against successors to land of OG
parties (damages)
 For the burden to run:
 Intent (express to run, or inferable by nature of promise)
 Horizontal privity
o Can be LL/tenant, gift/will bequest, sale
o No neighbors!
 Vertical privity
o No adverse possessors
o Separate analysis on each side
 Touch + concern
 For the benefit to run:
 Intent for benefit to run (express or inferable by nature of
promise)
 Vertical privity
o No adverse possessors
o Separate analysis on each side
 Touch + concern
o Equitable servitude (created by Tulk v. Moxhay): promise enforceable in equity
against successors to land of OG parties (injunction/specific performance)
 For the burden to run:
 Intent to run
 Notice
o Can be actual, constructive (recorded/written and should
have known) or inquiry (reasonable person would have
asked given facts)
o Key to equitable servitudes: don’t need vertical or
horizontal privity, but burdened party has notice
 Touch + concern
 For the benefit to run:
 Intent to run
 Touch + concern
Real Covenant: Promise enforceable at law
(damages for breach) [to the original parties]
Separately analyze whether burden and
benefit run with the land
For the burden to
For the benefit to
run
run
(1) Intent (express to (1) Intent for benefit
run, or inferable by to run (express to run,
nature of promise)
or inferable by nature
of promise)
Equitable Servitude: Promise enforceable
in equity (injunction, specific performance) –
Tulk invented these
For the burden to
run
(1) Intent to run
(2) Notice
Actual
For the benefit to
run
(1) Intent to run
(2) Touch + Concern
(2) Horizontal privity
(abandoned in most)
Landlord-tenant
r’ship works
Grantor-grantee
works
Neighbors does not
(3) Vertical privity 
no adverse possessors
or break in chain of
title
(4) Touch + Concern
burdened property


(2) Vertical privity 
no adverse possessors
(3) Touch + concern
benefitted prop
Constructive
(recorded
or
written
and
should
have
known)
Inquiry:
reasonable
person
would
have
asked
given the facts
(3) Touch + Concern
Touch + concern requirement
o Touch and concern: covenant must relate to the land (covenant touches and
concerns if performance of covenant somehow relates to use/enjoyment of land)
o Neponsit v. Emigrant Savings Bank – payment of HOA fees towards common
resources in common interest communities is enough to satisfy touch + concern
requirement
 Relaxes requirement in favor of functionalism
o Eagle Enterprises v. Gross – T+C requirement not met by affirmative covenant
making buy water from neighbor’s well
 Courts are unlikely to enforce perpetual promises that look like
market transactions (requirements to buy something forever)
o What about negative covenants?
Creation, scope, and termination
o Creation = always in writing
o Scope = construe writing and see what contemplated/intended
o Termination:
 Release (can be specific term set in writing or if benefitted party signs
off)
 Merger
 Abandonment (benefitted person fails to enforce for some time)
 Changed circumstances (see doctrine of waste, or if becomes against
PP)
Conservation Easements
 Conservation easement: a perpetual covenant in gross created by a legally binding
agreement between property owner and nonprofit/government agency restricting
development on land covered
o Negative covenant = promise to not develop on land for benefit of others
o In gross = belongs to govt/nonprofit, not land
o Must be enabled by state law (but all states allow)
o Allow for tax deductions to incentivize conservation/make up for diminished
value
 Benefits:
o Preserves open space
o Environmental and historic preservation
o Non-regulatory solution
 Concerns:
o
o
o
o
o
o
Difficult to monitor/enforce because maintained by private parties
Destruction of economic value in perpetuity
Allows dead hand control/inadaptability
Difficult to terminate
Often used as tax loophole for wealthy landowning people
Creates pockets of protected lands, no uniformity
#Zoning and Land-Use Regulation
 Zoning: regulation of land uses through a general regime permitting and forbidding
certain uses of land in certain locations
 Euclid v. Ambler Realty – zoning is constitutional as long as regulation is reasonably
related to a legitimate state interest (rational-basis test)
o Implication: allows for broad-based discriminatory zoning
o What constitutes a legitimate state interest is broad, but unclear if pure
aesthetics count
 Policy arguments:
o The case for zoning:
 Allows local democratic control over land use
 May protect sensitive communities from gentrification
 Environmental/health protections
 Aids larger-scale regional planning
 Reflects local democratic preferences
 Preserves aesthetic preferences and economic stimulation
 Prevents fiscal free riding: higher tax rate subsidizes cost of services
lower income residents
 Tiebout hypothesis: municipalities provide package of amenities at a
price, people either vote for change in government or relocate to a more
optimal place
o The case against zoning:
 Exacerbates inequality
 Racial/class segregation effects
 Catalyzes inefficient uses of land/encourages sprawl
 Zoning boards subject to regulatory capture
 Artificially restricts housing supply/contributes to affordable housing
crisis
 Democratic preferences reflect extant owners, not outsiders
 Prevents changing use of land to circumstances
 Residential segregation
o Racial segregation in housing is pervasive (has recently declined, but likely due
to gentrification of cities)
o Alternatives to public housing:
 Tax credits for developers who set aside a percentage of units for
income-restricted units (inclusionary zoning/mixed income)
 Vouchers (section 8) subsidizing cost of rent (tied to people, not units)
 But no LL required to take them, so can discriminate on basis of
vouchers
 Solution to discriminatory zoning: Mount Laurel Doctrine
o NAACP v. Township of Mount Laurel (NJ specific) – presumption of fair
share of low- and moderate-income housing, so invalid to use land use
regulations to exclude low-income residents


Cities are affirmatively required to provide a fair share of housing for all
residents
Courts empowered to intervene to ensure (but institutional
capacity concern – should courts be doing this?)
XI.
GOVERNMENT FORBEARANCE AND TAKINGS
#Physical Takings/Eminent Domain
 Eminent domain: the power of the government to convert private property to public
use with the payment of just compensation
o Comes from 5th amendment
o Two requirements: public use and just compensation
 Kelo v. City of New London – economic development satisfies public use
requirement (public benefit received from econ development sufficient to constitute
public use)
o O’Connor dissent: 3 categories of appropriate takings
 Government takes title
 Takings followed by uses open to the public
 Takings justified by harm prevention (Berman/Midkiff)
o Thomas dissent: no public use unless government owns OR public has right to
use
o Most states have responded to Kelo by passing amendments, construing
constitution, or passing legislation saying econ development does NOT meet
public use requirement
 US v. Miller – fair market value required for just compensation is determined at the
time of the taking UNLESS it was probable that the land was to be taken (then use
time at which taking proposed)
o This rule discourages speculation (when people take undue risks in light of
surety that they will be compensated)
o Problem with FMV standard: systematically undercompensates for
subjective/sentimental value
 Partial takings:
o Where partial taking, look at depression of property value and compensate
o But where partial taking actually increases value of property, no compensation
 Quick takes:
o State and federal statutes allow title transfers immediately when taking
initiated, compensation to be determined/litigated after
#Regulatory Takings/Inverse Condemnation
 Regulatory taking: regulation either prevents full use of property or gives it to a 3rd
party
 Old law:
o Penn Coal v. Mahon – whether valid regulatory taking determined by balancing
test to see whether the regulation goes too far
 Extent of diminution of value
 But see denominator problem: do we consider the value of the
property as a whole or of the part of the property being taken?
 Whether the regulation prevents a nuisance
 Average reciprocity of advantage (does the burden conferred also benefit
the burdened party?)
 Modern law:
o Penn Central: ad hoc balancing test (most claims lose)
 Character of the government action (physical or regulatory
invasion?)
 Extent of diminution of value

o
o
Denominator problem: unclear whether we should look at value
of the whole property or only relevant parcel (mostly relevant
where multiple parcels or where multiple rights at issue, ex.
surface rights vs mineral rights)
 Murr v. Wisconsin – 3-factor test to determine denominator where
multiple lots:
o Treatment of property under state law (lot lines,
reasonable restrictions on use of property)
o Physical characteristics of property (topography,
surrounding environment, area likely subject to
environmental regulations)
o Complementary principle: whether burden on portion
increases value on other/both lots (suggesting lots are in a
special relationship)
 Extent of interference with reasonable investment-backed
expectations (how much does it interfere with the things you think you
can do with your property?)
Loretto: where there is a permanent physical occupation, automatically a per
se taking
 Public law comparison to Jacque – reservation of the right to exclude
 Horne extends this rule to takings of personal property in addition to real
property (but not universal – has to at least exempt criminal laws)
 Cedar Point Nursery v. Hassid - SCOTUS is currently considering
whether farmworkers union on property is a permanent physical
occupation (Loretto) or temporary (Penn Central)
Lucas: where there has been a total deprivation of economically beneficial
use OR 100% diminution of economic value, per se taking
 Government can raise harm prevention defense, but harm must have
existed when O took title (nuisance/statutory background principles)
Judicial Takings
 Judicial taking: where unpredictable change in state law by judges results in loss of
property rights
o At present, we don’t know if these exist
 Stop the Beach Renourishment – no taking where state rebuilt public beaches (avulsion
 property line ends at former boundary, not new water line), BUT state courts can in
theory violate takings law (plurality)