SUBSTANTIVE OUTLINE!!!
1. Five Theories of Property
First, Labor, Happiness, Democracy, Personhood
NOTE - Maximize Social Happiness-Also, economic viability. 3 basic features of property
rights:
i. Universality- everything must be owned
ii. Exclusivity- prevent others from using property
iii. Transferability- ability to transfer title or possession
What is Property?-"Bundle of Rights" (4 general rights) and aren't absolute.
DUET – DESTROY, USE, EXCLUDE, TRANSFER
iv. Right to transfer
v. Right to exclude
vi. Right to use
vii. Right to destroy
1. "Bundle of Rights"- if given establish property rights. If none, you aren't
owner.
b. Property Rights defined by government; Not natural, only when recognized.
c. Property Rights are not absolute
d. Property Rights can be divided; shared.
e. Property Rights evolve as law changes
The Rule of CAPTURE
1. Pierson v. Post: Unknown Objects (N.Y. 1805)2. Rule: If a wild animal is being pursued but still has natural liberty, it is not occupied until it is
wounded or captured to prevent its natural liberty. Subject to control of pursuer and rendered
escape impossible. Majority went w/ clearer rule.
3. Reasoning: The court uses Justinian law and other precedents to find for Pierson. Though
unkind, Pierson had a right to kill and take a wild animal being pursued on unowned land.
No one owns land.
If Post owned the land ratiaone soli (title of occupancy, landowner is in constructive possession of
wild animals therein).
2 conflicting theories:
a. Formalism-applying legal principles to facts (found in majority opinion)
b. Instrumentalism/Legal Realism-laws should reflect changes of time; instrument of
society's needs. (found in dissent)
What Acts Constitute Possession of a Wild Animal to the point that you can exclude the claims
of others to that animal?
1. Do something that shows to the world that you are trying to exercise control over the
animal (ex: mortally wounding)
2. Be the first to Exercise control over
Mere Pursuit of the Fox is Not Enough!!
Remember, possession is central to the concept of ownership, but it is not
determinative.
POD:
c. Greene asks if Post had yelled "the fox is mine", would it matter? No change based on
case. Possession doesn't mean the same things in all contexts
d. Greene says Pierson's argument is best, absolute and concrete.
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Basically, possession v. chase (closing in). Why? If you don't have a remedy, you don't
have a right.
e. First Possession- this case used for wild animals and later oil, water, body parts,
homerun balls, etc. Who 1st deprived wild animal of liberty?
f. When Does Labor Matter? Don't want to cause chaos and unneeded litigation by
adopting "mere pursuit" rule?
g. Capture Hypos:
i. Post owns the deer because it prevented natural liberty
ii. Pierson owns the rabbit because it was returned to ferae naturae
iii. Pierson owns the rabbit because it still has natural liberty
iv. Post own the cow because it is not a wild beast but domesticated
h. On exam:
i. Can object be deemed property?
1. Look at statutes and courts, then public policy, then rules; then public
policy reasons encouraged by the rule.
2. In this case, promoting maximizing societal happiness through economic
efficiency. Some personal development but a lot of 1st possession.
Dissent is encouraging labor. **Don't be conclusory in rule or motivated
by policy
DISCOVERY doctrine: Discovery: not much is undiscovered today, but the idea that property
could be acquired through discovery has some modern implications.

Johnson v. M’Intosh (U.S. Supreme
Court): The Americans were able to take
over the title from the Indians because
the Indians were considered a
conquered people, so the dominant
party wins.

Rule: The conquering nation has the exclusive title rights to land and can transfer title.
The Indians are merely occupants (though they are entitled to compensation). Only US can be
recipient of Indian lands. Indians only had right to use. Bases this on custom. Developed in
historical context.
Greene says response was natural reaction of someone taking your home. 3 ways conquerors
got land:
i. Purchase
j. By force: killing; running off inhabitants
k. Removal (Eventually)
M'Intosh claim to title-Cabot discovered. US wins from Britain in war. US didn't reject
Discovery doctrine.
Indians have more of landlord/tenant relationship w/ US.
Court uses 4 Judicial approaches: ON EXAM
l. formalism-objective application of rules to fact to get your conclusion
m. Instrumentalism-rules of law that reflect social change or changes in society
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n. Legal Realism-judges make rules/laws wholly based on what is happening in society at
the time (justifies or determined by)
o. Critical Race Theory-establishing rules that reinforce Eurocentric legal principles and
subordinates non-Eurocentric legal principles
This was an action for EJECTMENT (3 Elements):
A. Plaintiff has title.
B. P was wrongfully dispossessed.
c. P suffered damages/harm.
In ejectment, D is in possession.
In trespass, P is in possession.
POD:
p. Bundle of Sticks-Only Occupancy rights
Hypo from Greene (Johnson v. M'Intosh): US invades Mars; Discover martians.
US sets up court and gives land to US citizens. Martians file suit in US DC.
How would rule? Court would adhere to Discovery Doctrine.
Why? We didn’t work to get to Mars for nothing. Arguments against? Int'l community
would frown on kicking aliens out of their home planet.
q. If Aliens settled in US like Bham. Then file action. What would court rule? 1st
possession.
r. **At times, deal w/ humanity and morality and other times, not so much.
Ex/ you find unowned land:
i. Find out if anyone claims to own it (govt, indigenous, private)
ii. Not one body of property law, but intertwined w/ others like contracts, etc.
s. **Property important to liberty and democracy
4. Joseph William Singer, Legal Theory: Sovereignty and Property- Indian property can still only
be sold to government. Questions origins of American property law. Should we not pay the
Indians compensation for taking their lands.
5. Humans as Property in Historical Context
• Slaves subject to: Rule of Capture, Rule of Conquest,
Inherited, and as a Gift
a. The Antelope (U.S. 1825)-3 ships, American Portuguese and Spanish, were captured by
pirates near Africa and the ships carried slaves. The vessels were later captured off the
coast of the US.
b. The question was to admit the Africans as free or return them to their owners. Slave
trade was outlawed in 1808, so the American ship Africans were treated as free. No one
claimed the Portuguese Africans, so they were free. The court ruled the Spanish
Africans to be returned to their owners upon proper title.
c. Chief Justice Marshall claimed that slavery goes against natural freedoms. However,
when there is conflict b/t natural law and positive law, law recognized as legal by the
nations of power, positive law must prevail b/c a jurists could not hold anyone
accountable for an illegal act that had general consent.
d. There was also a comparison to the Johnson v. M'Intosh case about "conquest gives title
to the conqueror." Marshall acknowledges natural law but turns and goes w/ legal
positivism. Marshall had chance to say Int'l slave trade was illegal. Preserved property
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rule of promoting labor and rule of capture. Also, ensured democracy. Tells us, to rule
otherwise goes against allowing humans to be commodities.
e. Dred Scott v. Sandford (U.S. 1857)
Facts: Dred Scott, P and appellee, sued Sanford, D and appellant, for his freedom. Scott
was a slave in Missouri and his master brought him to IL for 2 years, a state that
abolished slavery. He was then taken to MN in the LA territory, which didn't allow
slavery per the Missouri Compromise. He was then sold to Sanford, a citizen of NY.
Proc. History: Scott sued Sanford for his freedom claiming diversity citizenship and
that he was a citizen of Missouri. I assume, not mentioned, that the trial court ruled for
Scott.
Issues: Is a Negro whose ancestors were imported to the US and sold as property, but
who are emancipated or born to free parents, a part of the sovereign people as
recognized by the constitution? Frames issue more broadly to whether Scott or
African Americans can be a citizen??
Holding: No
Rule: The constitution does not give the power to the government to recognize the
Missouri Compromise that takes recognized property from citizens when they move to
states or territories that do not recognize the property.
Reasoning: The court finds that Scott is still a slave under Missouri law. The court
argues that the constitution allowed for slaves to be imported for twenty more years and
prohibited the fed government from interfering with those property rights indefinitely
by allowing escaped slaves to be returned to their owners.
The court says the US government has no right to take property from owners though
they move to states or territories that do not recognize slavery. Founders did not view
African Americans as human or citizens (free or slave). Treated as property. Not court's
place to overturn, but legislature's. Int'l and national norm for some time.
Disposition: Reversed.
f. Surrogacy, Slavery, and the Ownership of Life, Anita L Allen (1990)Facts: Polly Crockett was free but kidnapped and sold into slavery as a girl. She married
another slave and had two little girls. Her husband was sold "way down South." One
daughter escaped to Canada. When Polly tried to go as well, she was captured in Chicago
and returned. She found a lawyer, slaveholder himself, and successfully sued for her
freedom. She tried to buy her other daughter but the owner wouldn't sell.
She sued for her daughter claiming that since she wasn't a slave when she gave birth, her
daughter wasn't a slave either. The court agreed. The argument upheld was that though
slavery exists, it is against the laws of God and man to deny one their freedom that has a
right to it.
Right to Transfer
1. Humans as Property in Contemporary Context
2. Moore v. Regents of the University of California (Cal. 1991)
Big Idea: as one gains possession, someone is dispossessed.
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o
Creation: many property rights are created
through copyrights, patents, and trade secrets
(intellectual property)
 Moore v. Regents of the University of
California (Cal. 1990): Court found that
Moore had no ownership because he never
expected to retain possession of the
cancerous spleen.
Four Things to Take Away from Moore
o In order for an action centered on a
property tort (or some other similar
action) to lie there is a necessary
determination that property rights may
be exerted over the object-of-inquiry—
that the object may be legally “owned”
and/or transferred.
o The definition of “property” can be quite
complex—simply because there is an
“object”
that
can
be
physically
possessed does not necessarily indicate
that property rights may be exerted
over it.
o Courts and legislatures are the bodies
American society has given the right to
determine what may or may not
constitute property.
o Determining
that
an
item
may
constitute property can lead to foreseen
and unforeseen consequences in law
and society that are informed by history
and prevailing societal trends.
3. In the Matter of Baby M (N.J. 1988)
Issue: Is a surrogacy contract enforceable? Can we recognize child as property of Mrs.
Whitehead? Right to transfer is diminished. Adoption is considered a "gift", can't sell.
Holding: No.
Rule: A surrogacy contract is invalid b/c it conflicts w/ laws of NJ and public policies of the
state. Best interest of child is a big RULE (though presumption is natural mother).
Reasoning: Conflict w/ statutes:
a. Prohibition against paying money for placement in adoption
b. Laws against termination of parental rights w/o proof of unfitness or abandonment
c. Laws making consent to adoption revocable
i. Court says:
1. Law prohibits paying money w/ any placement of child for adoption
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2. Termination of parental rights is serious and can only be done
voluntarily to an approved agency and contracts can't terminate parental
rights
3. Therefore, the adoption by Mrs. Stern is improper
Conflicts w/ public policy:
d. Money is the facilitator of the transaction dealing w/ humans, not child's interest
e. Coercive contract
f. Adoption goes to highest bidder, regardless of suitability
g. Mother's consent to surrender child is revocable
h. Also, potential for middlemen to make a market out of this and exploit and degrade
women
Court says the legislature should take up the issue.
Needed counseling for mother, needed criteria for parents adopting. "Some things $ can't buy"
in civilized society. Similar themes run through Marshall, Taney's opinions and now Baby M
(just opposite sides). From "humans can be property" to "they can't".
Disposition: Remanded for custody determination. Court ruled that Sterns were in best interest
of child. Melissa.
Why limit transfer of body parts? Why not limit?
i. Alienability- free ability to transfer land (use w/ humans?)
j. Right to transfer
*Ch. 2: Owning Real Property
a. Real Property-rights in land and things attached (bldgs, fences, trees)
b. Personal Property-rights in movable property (chairs, pens, computers) and intangible
things (patents, shares in stock)
i. Traditionally, real property was most important b/c of English system handed
down and major theme in American development was to develop land for
productive use
ii. 3 aspects of real property law (balance b/t rights of owners and interest to
society:
1. Adverse possession
2. Vertical limits of ownership
3. Water law
iii. Property rights are:
1. Not absolute
2. Relative
3. Good balance b/t owner and society
Adverse Possession-
acquiring land by possession for length of time, meeting certain
specifications. Possessor is given bundle of rights that title holder held.
*Applies to Primary Occupiers (not necessarily the Purchasers)
Ex: Wrongfully thought land was theirs – Invalid Deed > COLOR OF TITLE
POLICY JUSTIFICATIONS FOR AP
1) Productive Use of Land
2) Preventing frivolous claims – fosters repose
3) Correct Title Defects – “You Know who it is”
4) Protect Personhood, reliance interests
CONS
Rewarding Theft/trespass
Preventing true owner from exer.autonomy
Does not Preserve Envir. Concerns
Undermines the whole legal system (deed process)
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5) Discourage Abandonment
No Clear Cut Rules = increase Litigation
1.
Elements of Adverse Possession – AN ECHO
a.
Actual
Possession-The
claimant
must
actually
physically use the land in the same manner that a
reasonable owner would, given its character, location and
nature
b.
Exclusive
Possession—The
claimant’s
possession
cannot be shared with the owner or with the public in
general
c.
Open
and
Notorious
Possession—The
claimant’s
possession must be visible and obvious, so that if the
owner made a reasonable inspection of the land, he
would become aware of the adverse claim
EX:
BLACKACRE is undeveloped wild land suitable only for hunting and
fishing. If D builds a small hunting cabin on the land, and enters several
times per year to hunt and fish, this will meet the “open, notorious, and
visible” requirement if a typical owner of similar property would make
such limited use. But it would not qualify if a typical owner would use
the property more extensively, build a much bigger dwelling, etc.
d.
“Adverse and Hostile” Possession/Claim of Right
i.
Any permission to use the land by the owner
negates this element
ii.
But if owner revokes permission then claim can
move forward
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To Defeat permission:
1. Show revocation of permission
a. *both must be clear, not "maybe"
e.
Continuous
Possession—The
claimant’s
possession
must be as continuous as a reasonable owner’s would be,
given the character, location, and nature of the land
f.
For the Statutory Period—The period for adverse
possession ranges from 5 to 40 years, depending on the
state. The most common ranges are 10, 15 and 20
g.
Notes**Look out for on Exam***
o One act may satisfy multiple elements
**On EXAM: apply facts to ALL elements (not isolated).
*Know difference b/t ejectment and quiet title. *Also look at topography of land.
o Actual possession-they used it exercising control and
dominion
**In Alabama, there must be a consistent
and persistent cutting of timber or wood
from the tract of land as to be evidence
of ownership (this is the minority view)**
Alabama-2 types of adverse possession
Adverse possession by prescription
a.
Look at common law elements
b.
Determine if they have been meet for the statutory
period of time
Statutory adverse possession
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a.
Possession under color of title—you think you
have possession but your documentation is
defective­you act under color of title
b.
Either paid property taxes or derived title by
descent or devise­through estate statutes or
through a gift or conveyance
*AL statutory period is 20yrs
o unless under color of title
o (then 10 yrs AND either must pay property tax OR
derive by descent (intestacy) or devise (gift or conveyance thru will).
AL hostility requirement holds state of mind irrelevant-"adverse" is implied by meeting
other requirements
Van Valkenburgh v. Lutz
1.
2.
Brief Fact Summary
A dispute between feuding neighbors. Plaintiff sues to enjoin
defendant from encroaching on his land. Defendant asserts adverse
possession as an affirmative defense.
Rule of Law and Holding
"To acquire title to real property by adverse possession not
founded upon a written instrument [i.e., no color of title], it must be
shown by clear and convincing proof that ... there was an ACTUAL
occupation under a claim of title.
The essential elements of proof being either that the premises
(1) are protected by a substantial inclosure, or are (2) USUALLY
CULTIVATED OR IMPROVED."
2. The Adverse Possessor's State of Mind
a. Most states agree that permission from the owner to be on the land is not "adverse and
hostile"
b. 3 approachesi. Good faith-adverse possessor truly believes they own land
ii. Bad faith-adverse possessor knows its not his land and intends to take
possession
iii. Irrelevant-other adverse possession factors indicate a claim of right
c. Fulkerson v. Van Buren (Ark. 1998) –CHURCH CASE
Issues: Was the possession by the church hostile?
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Holding: No.
Rule: Required bad faith intent ("we knew from day 1 it was not ours").
• For adverse possession, it is only necessary that it be hostile in
the sense that it is under a claim of right, title, or ownership as
distinguished from possession in conformity w/, recognition of,
or subservience to the superior right of the holder of title to the
land.
• Mere possession of land is not enough to adversely possess, and
there is every presumption that possession of land is in
subordination to the holder of the legal title. The intention to hold
adversely must be clear, distinct and unequivocal.
• Church could have tried OUSTER
• You know you are not the sole owner
• Try to exclude title holders from the land
• Notify them you are asserting sole ownership rights
How to defeat permission element of hostility


Clear revocation of permission
Ouster-recognizing they are sole owner and are
excluding the title holder
d. Tioga Coal Co. v. Supermarkets General Corp. (Pa. 1988)
Issues: Should the test for hostility be subjective, as opposed to objective?
Holding: No. OBJECTIVE WINS
Rule: If true owner has not ejected the interloper w/in statutory limits, and all other
elements of adverse possession are met, hostility will be implied (objective).
Reasoning: Court discusses the benefits and detriments of both subjective and objective
test for hostility. Reasons for subjective:
i. Becomes part of personhood
ii. Make more difficult to prove adverse possession
Reasons for Objective:
iii. Producing effective use; discourage abandonment
iv. Impossible (vague) intent (more stability wanted)
v. Discourage trespass
The court sides with the public policy reasons behind Justice Holmes favoring
objective. If land appears to be abandoned and a trespasser uses land for statutory
period, he grows attached to the land, and cannot be displaced w/out cutting at his life.
*Greene says some instances where you can adversely possess govt land: Usually if not
been in public use (states). 43 USC 1068 (1986)-Fed govt has allowed adverse for 20
yrs, good faith, color of title, and improvements
*Ways to defeat permission:
vi. Clear revocation of permission
vii. Ouster
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Dissenting Opinion: Justice McDermott dissents that Justice Holmes is no reason to
change existing Pa law. He claims Justice Holmes' approach is outdated. There must be
hostile possession against title holder, not someone else.
Disposition: Reversed.
POD:
viii. Role of Intent-Most jurisdictions don't require you know
Policy reasons for objective theory
 Personhood-identify with the property, develop
attachment
 Avoid land piracy or trespassing-avoid rewarding
bad behavior
 Avoids abandonment of land-promotes
productive use
 Hard to determine intent and possessor’s state
of mind-state of mind can change over the
statutory period
 Question though is what is reasonable use of
land-what would the actual owner do?
Policy reasons for subjective theory
• Promote use of title recording system
• Land is no longer wilderness-there may be a way to
actually trace the title holders that didn’t exist when
adverse possession doctrine developed
Makes it more difficult to prove advserse possession, NO
PRESUMPTION OF AP
e. Nome 2000 v. Fagerstrom (Alaska 1990) **Case mentioned in book; Printed from
Westlaw
Issues: Does the continuous, notorious and exclusive use of land require
the existence of significant improvements, substantial activity or absolute
exclusivity? Holding: No.
Rule: The condition of continuity and exclusivity require only that the land be used
for the statutory period as the average owner of similar property would use
it and physical visibility is required for notoriety.
•
Hostility is shown by objective standard that the possessor acted
toward land as if he owned it w/out permission of legal authority
to give possession.
Reasoning: The court notes that the Fagerstrom's built a cabin in 1978, so they are only
concerned w/ the preceding year to establish the 10yr statutory requirement.
Court says that others being free to pick berries and fish is consistent w/ a hospitable
landowner. Others in the community recognized the Fagerstroms as owners.
So continuous, exclusive and notorious possession is established.
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Court finds the argument of owners v. stewards of the land irrelevant.
Subjectivity is not the standard for hostility.
Court finds that using trails and cleaning on southern portion did not put owners on
notice of hostile claim and the posts for boundaries are irrelevant especially since the
one on the southern portion is missing. They also vacated attorney's fees.
3. Proving Adverse Possession
Claims normally arise in two procedural situations
• The adverse possessor brings a quiet title
action to confirm his title (Gurwit)
• The adverse possessor raises the doctrine as
a defense to an owner’s lawsuit to recover
possession (Van Valkenburgh)
a.
i.
ii.
b.
i.
Judicial action is not necessary
If A occupies B’s land for the required
period of satisfies the adverse possession
elements, A automatically acquires title to
B’s land when the period ends, without
litigation
In this case, the claimant brings a quiet title
action or a former owner may voluntarily
give over the deed
Tacking
The adverse possession period of two or
more successive occupants may be added
together to meet the statutory period under
this doctrine
a. Howard v. Kunto (Wash. 1970)
RULES:
1.
In order to establish "continuous" possession, an
actor need only possess in a manner that "ordinarily
marks the conduct of owners in general, in holding,
managing, and caring for property of like nature
and condition. . . . It is not necessary that the
occupant should be actually upon the premises
continually. If the land is occupied during the period
of time during the year it is capable of use, there is
sufficient continuity."
2.
Tacking the adverse use of predecessors is allowed
when there is privity of estate. In other words, an
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adverse possessor may aggregate the time of
successive occupants, so long as possession was
continuous, and the transfer of possession was in
good faith.
Definition of PRIVITY
Reasonable
connection
between
successive
occupants of real property so as to raise claim of
right above the status of wrongdoer or trespasser
Privity is not destroyed where the deed relied upon
did not give description of the land occupied
4 instances that would destroy continuity
• True owner files lawsuit to recover possession and
lawsuit leads to judgment in favor of the owner
• True owner interrupts adverse possession claim by
re-entering land and taking physical possession of
the land
• Trespasser uses land
• Adverse possessor abandons possession or has
significant absence from the property that does not
comport with nature, church or use of the land
POD:
i. Tacking Basics-most states only allow if successive owners are in privity
ii. Tackle These Hypos p. 1331. Gray area. No possession actually passed. The same could have
happened regardless of A's statement to B.No official transfer. Also
statute of frauds. More in line w/ trespasser
2. Tacking should be allowed. Successive privity. Yes. More official;
privity shown. Not in line w/ wrongdoer.
iii. Continuity Revisited- Summer occupancy does not destroy continuity.
iv. 4 events that could destroy continuity:
1. True owner files suit for possession and judgment given in his favor
2. True owner re-enters and takes physical possession (not all states)
3. Share part of land w/ trespasser
4. Adverse possessor abandons or has a significant absence.
a. *Look at disabilities p. 133-134: must be at beginning of adverse
possession and cannot "tack" them
Disabilities. What happens if owner A is unable to sue adverse possessor B during the state’s
10 year stat. period, for example, because A is insane? The period will be extended. Common –
Imprisonment, minority, and lack of mental capacity.
LOOK AT DISABILITIES PROBLEMS - HANDOUT
Ch. 5: Estates and Future Interest
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1.
Ex/ O gives his parcel of Redacre to A for life and then to B. A has right to posses in
her lifetime and then when she dies, B has right to posses. A has an estate (comes from Latin
word for status) (present possessory interest) and B has a future interest (right to future
possession).
A Short History
1. 1066 William the Conqueror and the Normans defeated the Saxon army in England and he
began distributing land to his small band of Norman followers to reward them and administer
the conquered territory. He borrowed Norman feudal system which king owned all land and
granted possessory rights to followers (tenants-in-chief). They provided services and
incidents to king. Most common service was knight service (provide set number of knights to
king's army). This led tenants-in-chief to create subtenures, where they distributed possessory
rights to their own tenants. The knights in turn would grant a small portion of land to another
person in exchange for payment of money or % of harvest. So knights became lords (mesne
lords). Incidents included an oath of fealty, monetary payments for right of tenant's eldest son
to succeed in tenancy, return of land if tenant died w/out heirs (escheat), right to possession of
land until a deceased tenant's heir reached 21, and special payments in times of financial
emergency. Incidents became more important b/c times of peace required less need for knights.
Tenants became unhappy about payments for incidents and Magna Carta (1215) addressed this.
1290 the Statute Quia Emptores, which gave tenants right to transfer w/out lord's permission
which signaled demise of feudal system and beginning of free alienability (right to transfer).
a. 2 types of estates:
i. Freehold Estates:
1. Fee simple
2. Life estate
3. Fee tail
a. Generally held by nobles and gentry and deemed to have seisin
(special form of possession), created by elaborate ceremony
called feoffment with livery of seisin.
ii. Nonfreehold Estates: created informally and held by common people. Much
like modern lease.
Modern Freehold Estates-6 freehold estates:
1. Fee simple absolute-99% of land in US; also has variants called fee simple defeasibles. Holder
has all rights in metaphorical bundle of sticks. Duration is potentially infinite. By definition, no
future interest accompanies fee simple. Traditionally used "and his heirs" to indicate fee simple
(no interest given to heirs). Today it is presumed unless another is specified.
a. It is freely:
i. Alienable-can be sold or given away during the owner's lifetime
ii. Devisable-can be transferred by will at death
iii. Descendible-can pass by laws of intestate succession if owner dies w/out will
2. Life estate-rarely used but equitable life estate is commonly used in modern trust. When life
tenant dies, the estate terminates. "for life" are traditional words of limitations. Grantor retains
future interest (reversion) for when grantee dies. Also have pur autre vie (for life of another).
Life estate cannot be created in favor of partnerships, corporations, or similar business entities.
*Biggest difference in modern estates and old England-Now fee simple is default.
Was the life estate.
a. It is alienable, but not devisable or descendable. *Though one who holds life estate pur
autre vie can devise it or allow intestate succession. As long as 3rd party is still living.
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3.
4.
5.
6.
7.
b. Future interest is usually a reversion but if transfer is to "B for life, then to C", future
interest is a remainder (held by 3rd party)
Fee tail-almost extinct in US; most coveted in medieval England (keep land w/in family).
Duration determined by lives of lineal descendants. Way to keep land in family. Passed from
eldest son to eldest son as long a bloodline lasted. Abolished in England in 1925. America
didn't like it b/c of fear it would undermine democracy and impair freedom of alienation. DE,
ME, MA, and RI are only states that allow it. "the heirs of his body" were limiting words.
Grantor retains reversion for when line of lineal descendants expires. Limited right to transfer:
Grantee can transfer but transfers back to Grantee's descendants upon his death. Fee tail maleonly passes to male descendants. Fee tail special-only allows transfer to descendants of
transferee who are parented by particular person.
Fee simple determinable
Fee simple subject to a condition subsequent
Fee simple subject to an executory limitation
a. Key distinguishing factor b/t 6 freehold estates is duration (how long they exist). Ex/
fee simple absolute is potentially infinite while life estates lsts only for a person's
lifetime
*Estate or future interest is usually transferred in 1 of 3 ways:
a. Deed-living person may transfer real property by deed. Completed transfer is a
conveyance or grant. Verbs to describe transfer are convey or grant. Person making
transfer is grantor and recipient is grantee.
b. Will-property of decedent can be transferred by will. Completed transfer is a devise
(also the verb to describe transfer). Person whose will contains devise is testator (male)
or testatrix (female) and recipient is devisee. *Different terms apply to transfer of
personal property by will
c. Intestate Succession-if person dies w/out will, property is distributed by state statutes
(usually to closest living relatives). Completed transfer is intestate succession. Verb
used to describe transfer of real property is descend while recipient is heir. *Different
terms apply to transfer of personal property by intestate succession.
i. Future interest in Grantee:
1. Reversion
2. Possibility of Reverter
3. Right of reentry
ii. Future interest in Transferee (3rd party):
1. Remainder
2. Executory interest
A.
Background
1.
Demise of Feudal System in England
a.
Statute Quia Emptores
i.
Gave a tenant the right to transfer his land
without permission from the lord
ii.
Multiple people could have rights in the
same parcel of land at the same time
iii. Two types of estates were recognized
15
•
•
•
•
•
•
B.
Freehold estates
Fee Simple
Life Estate
Fee Tail
Held mainly by noble and gentry
Nonfreehold estates
• Created informally
• Held by common people
Modern Freehold Estates
1.
Six Freehold Estates
a.
Fee Simple Absolute
b.
Life Estate
c.
Fee Tail
d.
Fee Simple Determinable
e.
Fee Simple Subject to Condition Subsequent
f.
Fee Simple Subject to Executory Limitation
Notes
Fee Simple Absolute is dominant estate today
Three
Ways
an
estate
or
future
interest
is
transferred
• Transfer by deed
A living person transfers real property by a deed.
The completed transfer is called a conveyance or a
grant. The verb is to grant or to convey
• Transfer by will
The property of a decedent may be transferred by a
will. The completed transfer of real property is
called a devise. The verb is “to devise” Male
testator. Female testatrix
• Transfer by intestate succession
If a person dies without a will, her property will be
distributed according to state statutes
Verb is “descend”
Completed transaction if called intestate succession
Heirs are recipients of the property. A living person
has heirs apparent
16
2.
a.
b.
c.
d.
e.
f.
g.
h.
Fee Simple Absolute –IS THE DEFAULT!!!!
If you own a home, likely you hold a fee simple
absolute estate
Embodies the largest group of private rights
recognized
The duration is potentially indefinite
Under English system, a person could convey a
fee simple only if the words “and heirs” was in
the deed. Today, it is not necessary to include
those words—if a conveyance does not contain
words that expressly describe the estate, it is
presumed the grantor conveyed the largest
possible estate
Freely alienable-it can be sold or given away
during the owner’s lifetime
Devisable-it can be transferred by will at death
Descendible-it can pass by the laws of intestate
succession of the owner dies without a will
Class Notes
i.
“And his heirs” are words of limitation-shows
what type of estate
ii.
If convey to a corporation or entity then use
“and its successors and assigns”
iii. Heirs don’t get anything by the language
White v. Brown (Tenn. 1977)
1.
2.
Brief Fact Summary
Testatrix left a will that stated "I wish Evelyn
White to have my home to live in and not to be
sold." Ms. White filed action to declare that she had
fee simple interest in the home. The nieces and
nephews of the testatrix are the defendants in the
action and claim that Ms. White has only a life
estate in the home.
Rule of Law and Holding
While the common law originally favored the
life estate, a modern interpretation creates a strong
presumption that a fee simple interest was
conveyed. A fee simple will be conveyed unless the
words and phrases of the will or other transfering
document clearly evidence an intention to transfer
less than a fee simple.
17
***Exam prob:
iii. Modern presumption on fee simple when language is unclear
iv. Outcome in furtherance of writer's intent
Disposition: Reversed decrees of trial court and appeals court and remanded.
POD:
v. Lide's Intent-As a lawyer for Lide if intent was life estate:
1. "White to live in home for her life"
If intent was fee simple:
2. "White and her heirs"
vi. Restraints on Alienation1. Disabling restraint-prevent transferee from transferring interests
2. Forfeiture restraint-leads to forfeiture of title if transferee attempts to
transfer interest
3. Promissory restraint-stipulates that the transferee promises not to transfer
interest
a. Absolute restraints on fee simple are void as to public policy,
partial restraints may be valid if reasonable as to duration, scope,
and purpose
vii. Life Estate Problems1. O conveys to B until he dies. = Life estate w/ reversion
2. O devises to C for life, then to X = Life estate w/ remainder
3. O conveys to D for 200 years = Life estate, life estate, w/ reversion
4. O conveys to E for life, then to Z for life = E has a life estate, Z vested
remainder in life estate, O’s heirs vested remainder in fee simple
5. O conveys to F for life. Then F conveys her interest to Google, Inc. =
Life estate for F only
6. *Life Estate holder must:
a. Pay taxes and mortgage
b. Make reasonable repairs
c. Cannot commit waste
d. Disputes b/t life estate holder and future interest holder arise. Common law doctrine of
waste resolves the life tenant to use property in manner that does not significantly injure
the rights of the future interest holder.
c.
Restraints on Alienation
i.
These provisions prohibit or limit a future
transfer of the property
ii.
If such a provision expressly prohibits the
future transfer of a fee simple, it is void
against public policy
iii. Three types of restraints
• Disabling restraint—A restraint that
prevents the transferee form transferring
her interest
18
Forfeiture restraint—A restraint that leads
to a forfeiture of title if the transferee
attempts to transfer her interest
• Promissory restraint—A restraint that
stipulates that he transferee promises not to
transfer her interest
•
Woodrick v. Wood (Court of Appeals of Ohio
1994)
P is suing for an injunction to keep D from removing
a barn which is on property on which P has a remainder
interest
Issue: Whether the holder of a remainder interest in
a parcel of land may prohibit the life tenant of such
property from destroying structures on the land.
1. Waste – An abuse or destructive use of property by one in
rightful possession
2. At common law, anything which in any way altered the
identity of leased premises was waste, regardless of whether
the act happened to be beneficial or detrimental to the
remainder interest
3. The Ohio rule is that a life tenant has the right to make
beneficial use of the property even though she would be
altering the land in order to do so
4. The destruction of the barn (because it would not decrease
the value of the land) does not constitute waste – even
though D finds the removal objectionable
5. The relevant inquiry is always whether the
contemplated act of the life tenant would result in
diminution of the value of the property.
Majority Approach is that an action in
waste lies only where the alterations reduce the
value of the property
Minority view (Common Law)-a life tenant
could not alter the property in any substantial
way-even if it increased its value
Types of Waster
1. Voluntary Waste results from an affirmative
act that significantly reduces the value of the property
(e.g., demolishing a valuable house)
19
2. Permissive Waste results from failure to take
reasonable care to protect the estate (e.g., failing to
make minor repairs or pay property taxes)
3. Ameliorative
Waste
results
from
an
affirmative act that leads to a substantial change in
the property and increases its value (e.g. building a
swimming pool)
A FUTURE INTEREST HOLDER MAY OBTAIN
DAMAGES OR INJUNCTIVE RELIEF IF THE LIFE
TENANT COMMITS VOLUNTARY OR PERMISSIVE
WASTE.
HOWEVER, MOST STATES DO NOT
RECOGNIZE AMELIORATIVE WASTE
20
Life Estate Holder
1.
Must pay taxes and mortgage on the land
2.
Must make reasonable repairs
3.
Cannot commit waste
4.
Fee Tail
a.
Most important estate for landed aristocracy in
medieval England
The duration is determined by the lives of the
lineal descendants of a particular person
Almost extinct in the United States
Only four states allow it
Basic Form
i.
Created by a conveyance to a named person
and “the heirs of his body”
ii.
The holder has limited right to transfer the
estate
iii. It is not devisable because it automatically
passes to the lineal heir upon the holder’s
death
b.
c.
d.
e.
5.
Fee Simple Defeasible
Three ways courts construct restrictive language
1.
Restrictive Covenants
o Can sue for injunctive relief or damages
o The holder does not forfeit the land
2.
Expressed as a wish
• In this case there are not repercussions
3.
Defeasible Estate
• Grantor retains divesting future
interest
• The type of estate dictates the future
interest
• If it’s determinable-it’s possibility of
reverter
21
• If it’s subject to condition subsequent –
it’s called a right of entry or power of
termination
• The estate ends automatically when
the condition is met or restriction
violated
a.
An estate that may end upon the occurrence of
some future event
b.
Three types
i.
Fee Simple Determinable






Is a fee simple estate that
automatically ends when a certain
event or condition occurs, giving
the right of possession to the
transferor.
The potentially infinite duration of
the fee simple will be cut short if
the event or condition happen
Characterized by words like “so
long as” “while” “until” and
“during”
The future interest that follows is
always a “possibility of reverter”
which can only be retained by the
transferor (or his heirs). It cannot
be created in a transferee
The possibility of reverter always
becomes possessory upon the
happening of the stated condition
It is freely alienable, devisable,
and descendible
ii.
Fee Simple Subject to Condition
Subsequent
•
•
•
A fee simple estate created in a transferee that may be terminated at the
election of the transferor when a certain condition or event occurs
If the condition happens, this estate does not end automatically; rather, the
transferor has the power to terminate the estate by taking action
Characterized by words like “provided that” “but if” “on condition that”
22
•
•
•
•
•
A “right of entry” or “power of termination” always follows a fee simple
subject to condition subsequent
The future interest can only be retained by the transferor (or his heirs). It
cannot be created in the transferee
When the condition occurs, the transferor can elect to re-enter the
property, divesting the transferee of possession
Unlike fee simple determinable, the estate is not automatically terminated
Freely alienable, devisable and descendible
iii. Fee Simple Subject to Executory
Limitation
•
•
•
•
•
•
Created in a transferee that is followed by a future interest in another
transferee
The future interest is held by a third party
Created by same words as other two
But the distinguishing characteristic is that the future interest is held by a
transferee NOT THE TRANSFEROR
The future interest that follows is an executor interest
Alienable, devisable and descendible
Case
Mahrenholz
v.
County
Board
of
Lawrence County (Appellate Court IL-1981)
Had the court decided it was a fee simple subject to
a condition subsequent, Hutton would have right of reentry. It would become a fee simple absolute after he
took action. If this is the case the Mahrenholz’s have no
interest in the property. But Harry released his future
interest to the school district . Under common law, the
holder of the future interest can release the interest to
the holder of the present estate
MAHRENHOLZ - Big idea is what is future interest:
i. Possibility of reverter
ii. Right to reentry
"otherwise revert back to Grantor herein" is only defining language.
Rules: If fee simple determinable, land reverted back to Harry Hutton as soon as not
used for school. If fee simple subject to condition subsequent, Harry Hutton had to
reenter and reclaim land before he owned it.
c.
When language is ambiguous, courts generally
construe the estate as a fee simple subject to a
condition subsequent
23
i.
ii.
d.
i.
ii.
Social policy abhors the forfeiture of estates
because this interferes with marketability
Therefore, the fee simple subject to a
condition subsequent (presenting only a
limited risk of forfeiture) is preferred over
the fee simple determinable (which results
in automatic forfeiture)
Right to re-entry
At common law, right to re-entry and
possibility of reverter could be transferred
only through intestate succession to the
holder’s heirs – ONLY DESCENDIBLE
Today,
most
jurisdictions
allow
free
alienation of both interests
e.
Doctrine of waste generally does not apply to fee
simple defeasible
f.
Common Law
i.
Possibility of reverter and right of entry were
not alienable or devisable-they were only
descendable through intestate succession
ii.
These two future interests also can be
released to the current possessor of the
estate
iii. Transferring Future Interest-Both determinable and subject to condition
subsequent are descendible at common law, but not alienable or devisable (sold,
gift, or will). *In most modern jurisdictions-possibility of reverter and right to
reentry is freely alienable and devisable. **So know if applying common law or
modern rules
24


Can a grantee acquire title by adverse possession
following a breach of a condition subsequent but
prior to a claim of forfeiture? NO
Can the lapse of an extensive period of time
between breach and an election of forfeiture waive
or extinguish the condition? YES

•
•
•
C.
RATIONALE
Continued possession and enjoyment of property does not
become adverse to any possessory estate of the grantor
until the latter, or his heirs, elect to declare a forfeiture
The grantor has a reasonable time after breach within
which to declare a forfeiture
If he fails to declare a forfeiture within that time, his
power to do so has expired
NOTES
• Court says grantors heirs waived their right of
re-entry
• Waiver is an intentional relinquishment of a
known right or intentional conduct
inconsistent with claiming the right
• The waiver differs from a laches or estoppel
defense where the possessor must show
reliance
• The SOL for adverse possession for a fee
simple determinable starts to run as
soon as the condition is broken
• The SOL for adverse possession with a
fee simple subject to a condition
subsequent starts when the grantor
exercises the right of termination or
right of re-entry
Modern Future Interests
1.
Future Interests Retained by the Transferor
Arises when a transferor conveys an estate to a
third party which is smaller than the estate she holds
a.
i.
ii.
Reversion
A transferor retains a reversion when she
conveys an estate smaller than the one she
has
Future interest remaining in the transferor
when she grants a vested estate of lesser
quantum than she began with
25
iii.
Alienable, devisable, and descendible
b.
i.
Possibility of Reverter
Future interest retained by transferor who
holds a fee simple absolute, buy conveys a
fee simple determinable
Since there is a possibility that the fee
simple determinable might end, this future
interest gives the transferor the right to
possession if that estate terminates
Alienable, devisable, and descendible in
almost all jurisdictions
ii.
iii.
c.
i.
ii.
iii.
2.
Right of Entry
Future interest retained by the transferor
who holds a few simple absolute but
conveys a fee simple subject to a condition
subsequent
The right of entry does not become
possessory until and unless the holder takes
affirmative steps to regain possession
Alienable, devisable, and descendible in
almost all jurisdictions
Future Interests Created in a Transferee
Remainders
A remainder is a future interest in a transferee
that is:
o Capable of becoming possessory
immediately upon the expiration of the
prior estate
o And, does not divest or cut short any
interest in a prior transferee
a.
i.
Indefeasibility vested remainder
Remainder is vested if it is created in an
ascertainable person and is not subject to a
condition precedent other than the natural
termination of the prior estate
26
ii.
If O conveys Greenacre “to A for life, then to
B”, B holds an indefeasibly vested
remainder-a remainder in an identifiable
person that is certain to become a
possessory estate
b.
i.
Vested remainder subject to devisement
Remainder that is vested but that is subject
to a condition subsequent
c.
i.
Vested remainder subject to open
Vested remainder held by one or more living
members of a group or class that may be
enlarged in the future
d.
Contingent remainder
i.
If the remainder is not vested, it is
ii.
Remainder
given
either
to
an
unascertainable person or subject to a
condition precedent
contingent
Executory Interests
• Future interest that must divest
another estate or interest to become
possessory
• If an executor interest divests the
transferor, it is called a springing
executor interest
• If a transferee is divested, it is a
shifting executory interest
• Today, they are alienable, devisable,
and descendible in all jurisdictions
D.
Rule Against Perpetuities
MY NOTES
ADD 21 TO THE END OF A LIFE
NO INTEREST IS GOOD IF IT’S STILL HANGING OUT THERE AFTER 100 YEARS
1.ID THE CONTINGENT INTEREST
2. LIST THE LIVES IN BEING
27
3. CONSIDER WHETHER ANYONE CAN BE BORN WHO MIGHT AFFECT VESTING
4. KILL OFF THE LIVES IN BEING AT SOME FUTURE DATE AND ADD 21 YEARS
5. FINALLY, ASK IS THERE ANY POSSIBILITY THAT THE CONTINGENT INTEREST WILL
VEST AFTER THIS POINT. IF SO, VOID AT THE TIME MADE.
1) O to B for life, then to M if M lives to be 50.
2) O to A so long as used for residential purposes.
A fee simple determinable, O poss. Of reverter
3) To A for life, then to A’s children. A is alive, but no children.
1. there is a contingent interest
2. A must die leaving a child
3. Measure by A’s life
4. Within A’s death, will we know if the future interest can take?
If there is a child to take
1.
2.
3.
4.
5.
6.
No interest is good unless it must vest, if at all, no
later than 21 years after some life in being at the
creation of the interest
The rule limits the duration of a contingent interest by
providing that is void unless it must vest or forever fail
within 21 years of the death of a life in being
A contingent interest is valid only if you can logically
prove that it will either vest or forever fail to vest
within the perpetuities period (a life in being plus 21
years)
If there is any possibility that the interest might vest
more than 21 years from the death of the relevant
lives in being, the future interest is void when created
Only three interests are subject to the rule
a.
Contingent Remainders
b.
Executory Interests
c.
Vested Remainders Subject to Open
Interests not subject to the rule
a.
Fee Simple Absolutes
b.
Fee Simple Defeasibles
c.
Fee Tails
d.
Life Estates
e.
Leaseholds
f.
Reversions
g.
Possibilities of Reverter
28
h.
7.
8.
Rights of Entry
The question is not whether the interest might vest
the question is whether there is any possibility the
future interest might not vest within the permitted
time period
Situations where an interest is more likely to be
subject to the RAP
a.
When the condition is not personal to someone
b.
When there is an identified age or time period of
more than 21 years
c.
Conveyance that skips a generation
d.
Conveyance requires that a holder survive
someone who is merely described and not named
e.
An event that normally would not take place
within 21 years
9.
More RAP Danger Signs
•
•
•
•
•
•
•
•
•
The condition is not personal to someone
There is an identified age or time period of more than 21
years
An interest is given to a generation after the next
generation (for example, to grandchildren)
A conveyance requires that a holder survive someone
who is merely described rather than named
An identified event that would normally happen well
within 21 years, but might not
The holder won’t be identified until the death of someone
merely described rather than named
Class gifts following another class gifts—because
someone not alive now will move into the class
If the ultimate grantee is a label, not a name
If you have to have an event occur that is not a death or
that doesn’t have to be performed by a particular person
o Greene's Hypos:
 O to A for life, then to A's children. A has no children at
time of conveyance. Analysis: We'll know if remainder
will vest or fail at A's death. So valid. A's children have
contingent remainder. What if A has 2 children at
conveyance? Still valid. A life estate; A's children have
vested remainder subject to open.
 O to A for life, then to A's children who reach 30. A is
alive. B & C are A's kids ages 30, 32. A has possessory
29
estate in life estate. Children have vested remainder
subject to open. O has reversion in fee simple. Analysis:
If A has child, D, at death, won't know if D will reach age
30 for 30 yrs. This violates rule of perpetuities. So A has
life estate and O has reversion. *Note class doesn't close
(or vest) until all kids are 30.
 O to A for life, then to B, but if land is ever used for
tavern, then to C. A has possessory life estate. B vested
remainder subject to executory limitation. C shifting
executory interest. Rule of perpetuities doesn't apply to B
(see below). C's interest fails.
o Signs for Alarm that may Violate Rule:
 Not personal (Ex/ but if anyone finds cure for cancer)
 Identifies age requirement of more than 21 yrs
 Skips a generation (Ex/ then to B's grandchildren)
 Conveyance to holder who is only described but no name
 Event that would normally happen w/in 21 yrs, BUT
might not. (Ex/ O to A for life, then B for 20 yrs, then to
whoever received A's land in distribution of estate. A has
life estate. B vested remainder in term of yrs. Whoever
has contingent remainder in fee simple absolute. O
reversion in fee simple absolute. Whoever is void.
o Only 3 interest are subject to the rule:
 Contingent remainders
 Executory interests
o Use following steps:
 Identify contingent interest
 List the lives in being
 Consider whether anyone can be born who might affect
vesting
 Kill off lives in being at some future date and add 21
years
 Ask yourself "is there any possibility that the contingent
interest will vest after this point?" If so, void. If not, valid.
10. Modern Reforms
a.
Wait and See
i.
Interest is void is actually does not vest
within the 21 years of the death of a life in
being
ii.
What is realistic not possible
b.
Uniform Statutory Rule Against Perpetuities
i.
Interest is valid if satisfied common law or
vests
within 90 years of its creation
30
c.
i.
ii.
d.
i.
IV.
Cy Press
Courts rewrite language of the conveyance
so it no longer violates the RAP
Considers grantors intent when re-writing
Savings clauses
Write the conveyance in such a way as to
save the interest
SELLING REAL PROPERTY
A.
The Purchase Contract
1.
Statute of Frauds
a.
As a general rule, an oral agreement for the sale
of an interest in real property is not enforceable
b.
A written contract gotta have 5 things:
i.
Essential Terms Must Be In Writing
1
• 2
• 3
ii.
4
•
Identity of the Parties
The Price
Property Description
Be a Writing
31
o Can be a formal contract or an informal
memorandum
iii. Signature
o 5 The writing must be signed by the party
against whom enforcement is sought –
normally the buyer
c.
d.
e.
2.
a.
Failure to comply with the Statute does not make
the contract void-it simply prevents it from being
enforced
The writing provides greater certainty about
intentions, less problems with intent as opposed
to oral agreement, and written agreements
indicate a heightened level of seriousness about
the agreement
Electronic Signatures
i.
Electronic documents can satisfy the SOF
ii.
A person can be bound by an electronic
signature
Exceptions to the Statute of Frauds
Part Performance—An oral contract for the sale
of real property may be enforced if the buyer:
i.
Takes possession
ii.
Pays at least part of the purchase price
iii. Makes improvements to the property
o Courts reason that the buyer would
perform these actions only if a contract
existed so this conduct serves as a
substitute for the writing
b.
Equitable Estoppel-An oral contract may
i.
One party acts to his detriment in
reasonable reliance on another’s oral
promise, AND
Serious injury would result is enforcement is
refused
be enforced if
ii.
32
Courts generally apply the doctrine if the
complaining party has relied on the oral
agreement by selling another property or by
refusing other offers for the property in
dispute
B.
The Closing
1.
The Deed
3 types
• General Warranty Deed
o Best type of deed – free from all defects
o Grantor warrants title against all defects whether
they arose before or after grantor possessed or
obtained title
•
Quit Claim Deed – no warranties!
o Worst type of deed
o Grantor makes no warranties about the title
• Special Warranty Deed
o Grantor warrants title for all defects that occur after
the grantor obtained title, non before from the old
days
**Delivery
a.
The deed is only effective when it is
delivered
b.
c.
An undelivered deed, even if signed by the
grantor, conveys nothing
The grantor must manifest an intention to
immediately transfer title to the grantee
Elements of Delivery
• Intention by grantor to immediately transfer
• Objective manifestation
• Acceptance by grantee (even if grantee is
unaware of the gift)
2.
Rosengrant v. Rosengrant
33
Issue(s): Under OK property law, was there was legal delivery
of title from Harold & Mildred to Jay?
Holding: There was no legal delivery to Jay so the title was
void. There was only a symbolic delivery.
Court's Rationale/Reasoning: On the envelope of the deed
it said that it was to be given to either the grantor or the grantee
which shows that Harold was free to retrieve the deed as he wanted
before his death. There were 2 conditions that needed to be satisfied
before the grant could take effect and those were 1) that both parties
died and 2) that the deed was recorded.
His actions also show that he intended to reserve a right of
retrieval. He continued to farm the land, use and control the property
and pay taxes on it and claim it as his homestead until he died. This
shows that he was trying to use the deed as a will and under OK law
this cannot be done.
Legal delivery is not just a symbolic gesture. The true intent of
the parties is evidenced on the envelope.
Rule: Grantor's intent at the time the deed was delivered is
the most important factor in transfers of title
Where a grantor delivers a deed under which he
reserves a right of retrieval and attaches to that delivery the
condition that the deed is to become operative only after the death of
the grantors and further continues to use the property as if no
transfer had occurred, grantor's actions are nothing more than an
attempt to employ the deed as if it were a will.
Concurrences: There was no reason to believe Jay who was
the only person from the parties that was still alive. If the grantors
intended for Jay to have the land, they could have simply given it to
him and told him to record it. The fact that the grantors continued to
occupy the land, paid taxes on it and offered to sell it once shows
that they did not make an actual delivery of the deed to Jay.
Class Notes
o What was missing from this deed was the intent
that the grantor be immediately bound and transfer
title
o This was probably testamentary intent-intent to
give someone interest when dies
o WILLS
i.
Must be in writing
34
3.
a.
b.
4.
a.
b.
c.
5.
ii.
Compliance with statute
iii.
Need witness for a valid will
iv.
Who being gifted to
v.
Possibly need witnesses
Delivery as Intent
Uniform Simplification of Land Transfers Act
defines delivery as “an act manifesting an intent
to make a present transfer of real estate”
Restatement (Second) of Property indicates
delivery is accomplished when “the donor
manifests that the document is to be legally
operative which the donor is alive”
Physical Delivery
Most states-the manual transfer of deed creates a
presumption that the deed has been delivered
Delivery is also presumed if the deed is recorded
In some states, absence of a manual transfer
creates a presumption of nondelivery
Vasquez v. Vasquez
RULE
When a grantor delivers a deed to a third person
without a reservation of a right to recall it, and instructs
the third person to deliver it to the grantee on the
grantor's death, he thereby makes an effective delivery
as a matter of law.
35
V.
CONCURRENT OWNERSHIP AND MARITAL PROPERTY
A.
Concurrent Ownership
Each cotenant has the right to use and possess the
entire property
1.
Modern Concurrent Estates
a.
Tenancy
in
Common
–
THE
i.
Each tenant has an undivided, fractional interest in
PRESUMPTION
the property
ii.
Each may transfer to another person (alienable,
descendible, devisable)
iii.
Each has the right to use and possess the whole
parcel even if his fractional interest in smaller than
the interests of others
iv.
Example
If O conveys to “A, B and C as tenants in
common” and then B conveys her interest to
A, A and C are tenants in common. A holds
2/3 interest and C holds 1/2. C has as much
right to use and enjoy the property as A but
36
when the property is sold, the proceeds will
be divided according to the proportionate
shares
v.
b.
Most marketable type of concurrent estate
Joint Tenancy
i.
“to A and B as joint tenants with right of
survivorship”
ii.
Joint tenants have undivided right to use and
possess the whole property
iii.
Each joint tenant has right of survivorship
iv.
When A dies, A’s interest in the estate is removed
and B automatically becomes to the sole owner
•
v.
Joint tenancy is NOT devisable or descendible
vi.
Common Law: Four Unities Required
o Time-all tenants must acquire their interests at
the same time
o Title-they must acquire title by the same
instrument (will or deed)
o Interest-they must have the same shares in the
estate, equal in size and duration
If one grantee gets a 10 year tenancy and another a life estate this unity is
destroyed
o Possession-must have equal right to possess,
use and enjoy the whole property
o If any of the four unities is missing, then a
tenancy in common is created
vii.
If one joint tenant transfers her interest, the joint
tenancy is severed. The transfer breaks unities of
time and title. The right of survivorship is destroyed
37
and the grantee becomes a tenant in common with
the other concurrent owners.
BUT The other
previous owners retain their joint tenancy
3 DISTINCTIONS W/ TENANCY IN COMMON:
a. THE FOUR UNITIES,
b.
NEITHER DEVISABLE NOR DESCENDIBLE IN JOINT
TENANCY
c. Time and title – If one joint tenant transfers his
interest, the joint tenancy is severed by breaking
unity and forms a tenancy in common w/ a new
tenant
c.
i.
Tenancy by the Entirety
Created if O conveys “to A and B as tenants by the entirety”
ii.
Only married couples can hold property in tenancy
by the entirety
iii.
Each has undivided right to use and possess the
whole property and a right of survivorship
iv.
Can only be severed by death, divorce, or
agreement of both spouses
v.
Neither spouse may transfer or encumber his or her
interest without permission from the other spouse
CASES
James v. Taylor
HOLDING
o The Court held that although it was obvious
that Eura intended to create a joint tenancy,
the language did not conform to the statutory
requirements – No right of survivorship. (The
statute overrode the rules of construction)
REASONING
•
•
At common law, joint tenancy was favored and
where possible, that estate was held to exist. But
many statutes, including Arkansas, have adopted rules
that presumptively construe an instrument to create a
tenancy in common rather than a joint tenancy
Nothing appears from the four corners of the deed to
indicate Redmond’s intent to convey a survivorship
interest
38
•
•
•
•
•
•
•
The language of the deed is insufficient to overcome the
statutory presumption of a tenancy in common
• Here the third child introduces extrinsic evidence to help
the court interpret the grantor’s intent
She told her attorney if one of children died she wanted that interest to go
to the other children
She changed names on bank accounts when her first children died
The court decides not to follow the extrinsic evidence and instead relies on
statutory rules of presumption which in Arkansas were that the grantor
intended a tenancy in common minus express language to the contrary
More modern rule is that courts will consider extrinsic evidence to help
determine grantor’s intent as opposed to statutory language
EXAM-if see fact pattern with both then apply both and reach a
conclusion and throw in a property theory as to why the outcome is
“correct”
There is not necessarily one right answer
Notes
o The law presumes the grantor intends to
create a tenancy in common absent express
language to the contrary
o Preferred language
Tenancy in common “To A and B as tenants in
i.
common”
ii.
Joint tenancy “To A and B as joint tenants with
right of survivorship”
iii. Tenancy by the entirety “To A and B as husband
and wife as tenants by the entirety”
iv. If wording is unclear, courts may ignore the
grantor’s actual intent but the modern trend is to
focus more on grantor’s intent and less of
formulaic language
2.
Severance
a.
b.
c.
A joint tenant can end the tenancy by conveying
her interest to a third party
What about mortgages? Or leases?
Three ways to sever a joint tenancy
i.
Sale
ii.
Action in partition
39
iii. Mutual agreement to convert the estate
In most jurisdictions a lease does not sever a joint
tenancy
Mortgages will sever a joint tenancy in some
jurisdictions and not in others
d.
e.
know these 2 theories!
i.
•
•
•
Title Theory
Mortgage conveys title to 3rd party and thus severs the joint
tenancy
Minority Rule-only 10 states follow it
Alabama follows this rule
ii.
Lein Theory
o Mortgage is viewed merely as a lein to
secure payment so it does not sever a
joint tenancy because the unities are
preserved, keeps it intact
o If a foreclosure takes place the unities
are destroyed and the joint tenancy is
severed
Tenhet v. Boswell
•
o Joint tenant leased property to D for a person of 10
years without knowledge or consent of other joint
tenant
o Joint tenant lessor died three months after
execution of the lease and P sought to establish
her sole right of the property as the surviving joint
tenant
o The lease did not create a severance
o The lease of the joint tenancy property expires
when the lessor dies
HOLDING
A joint tenant leases his interest in the joint tenancy
property to a third person for a term of years and then
dies during that term.
40
• The lease does not sever the joint tenancy,
but expires upon the death of the lessor
joint tenant
• When joint tenant dies, the lease expires
and the other joint tenant(s) retain that
interest
3.
a.
b.
c.
4.
Partition
Any tenant in common has the right to sue for
partition of the property
i.
Most courts state the presumption if for a
partition in kind where the land is divided
but many courts allow partition by sale
• This ensures cotenants retain the same estate
they had prior to partition
• Avoids need to impose sale on unwilling
cotenants
ii.
Consequences of partition by sale
• Diminish wealth building capacity
• Destroy ancestral lands
• Destroy cultural traditions
• Disproportionate impact on certain
communities
• Destroys mode of survival
• Eliminates the bundle of rights (use,
possess, transfer, destroy) that exist with
ownership
A partition judgment ends the cotenancy and
distributes its assets
Agreements not to Partition
i.
Traditionally viewed as a restraint on
alienation
ii.
But if reasonable in duration and purpose
then most jurisdictions allow an agreement
against partition
Three common law default actions
1)
Partition
i.
Terminates cotenancy
41
iii.
2)
ii.
Partition in kind-divides up land
Partition by sale-sell land and cotenants
share the proceeds
Action in Accounting
i.
Equitable action
ii.
Asking cotenant to give benefits of rent
iii. Seeking from a cotenant their pro-rata
share
iv.
3)
Normally it is the cotenant not in possession
seeking the money from the cotenant in
possession
Does not terminate cotenancy
v.
Contribution
i.
Asking for one cotent to contribute or
reimburse the other for certain expenses
ii.
Taxes, insurance charges, mortgages
iii. As a general rule, each cotenant is
responsible for his pro-rata share of
mortgage payments, taxes, etc. and the
other can seek contribution
iv. Normally only occurs in connection with a
partition
v.
Does not terminate cotenancy
Case
Ark Land Co. v. Harper
Court of Appeals of W.V. 2004
FACTS
•
•
•
The corporation, which wanted to mine the property for
coal, bought undivided interests in the property from
some descendants of the original owners, but other
descendants were unwilling to sell.
Family used the land for reunions and family gatherings
The supreme court of appeals held the fact that the
corporation's proposed use of the property caused it to be
worth more money, as opposed to maintaining it as a
family homestead, did not control when deciding whether
to order that the property be partitioned in kind or
partitioned by a sale.
42
•
•
•
•
•
Partition in kind was the preferred partition method, and
the partitioning sale statute, W. Va. Code § 37-4-3, was to
be construed narrowly.
Evidence of the heirs' long-standing ownership of the
property, and their sentimental or emotional interests in
it, could be considered and controlled because the
property could be partitioned in kind, even though it
caused some economic inconvenience to the corporation.
The corporation's self-created enhancement of the
property's value, based on the corporation's expectation
that it could mine coal on it, was not a determinative
factor in forcing the heirs to give up their rights through a
forced partition by sale
Court considered the emotional or sentimental
attachment, the longstanding ownership and the
economic harm
The economic harm to Ark Land is relevant but not
determinative
REASONING
•
Partition by sale, when it is not voluntary by all parties,
can be a harsh result for the cotenant(s) who opposes
the sale. This is because a particular piece of real
estate cannot be replaced by any sum of money,
however large; and one who wants a particular estate
for a specific use, if deprived of his rights, cannot be
said to receive an exact equivalent or complete
indemnity by the payment of a sum of money.
• Consequently, partition in kind is the preferred method
of partition because it leaves cotenants holding the
same estates as before and does not force a sale on
unwilling cotenants.
• Presumption is for partition in kind and a burden must
be overcome for a partition by sale
• Economic value of the property is not the exclusive
test for deciding whether to partition in kind or by sale
• The emotional interest would be prejudiced in this case
by a sale of the property
• Court balances personhood theory with
utilitarian/economic good theory
A party requesting partition by sale must meet 3 requirements:
 Property cannot be conveniently petitioned in kind
 Interest of one or more parties will be promoted by sale
43

4.
Interest of other parties will not be prejudiced by sale. Prove partition in
kind would result in great prejudice. To show prejudice for partition in
kind:
• Resources not divided equally on land (ex/ house)
• Some parts don't have sacred ground
• Part is worth more
• Topography is different
Cotenant Rights and Duties
Majority RULE: no rent is owed by one in possession absent ouster (forced eviction from land or
refuses request to possess)
Minority RULE: occupiers must provide rent to those not occupying property.
a.
i.
ii.
b.
i.
Sharing Rents and Profits
Each
cotenant
is
entitled
to
his
proportionate share of all rents and profits
derived from the land
c.
i.
Sharing Costs
If you make improvements or repairs, the
majority rule is that you are not entitled to
collect payment from a cotenant
But if a cotenant makes needed repairs he
will receive a credit for those costs in a
partition action and the cotenant who
improves the property receives a credit
equal to the increased market value
produced by the improvement
ii.
d.
Right to Occupancy
A cotenant in possession does not owe any
rent to a cotenant out of possession, absent
an ouster
An ouster occurs when a cotenant in
possession refuses to allow another
cotenant to occupy the property
Rents
44
i.
Majority Rule
• A cotenant does not owe any rent to a
cotenant out of possession, absent an ouster
• Ouster occurs when the cotenant in
possession refuses to allow the other to use
or possess the property-must be express
and explicit
ii.. Minority Rule
• Those in possession give or provide rent to
those cotenants not in possession
Estevez RULES
•
•
•
•
•
•
As a general proposition, on a sale of commonly owned property,
an owner who has paid less than his pro-rata share of operating
and maintenance expenses of the property, must account to a coowner who has contributed more than his pro-rata share, and that
is true even if the former had been out of possession and the latter
in possession of the property.
The fact that one tenant in common occupies the property and the
other does not, imposes no obligation on the former to make any
contribution to the latter. All tenants in common have a right to
occupy all of the property and if one chooses not to do so, that
does not give him the right to impose an occupancy charge on the
other.
Notwithstanding the general rules, when on a final accounting
following sale, a tenant who has been in sole possession of
the property demands contribution toward operating and
maintenance expenses from his co-owner, fairness and
equity dictate that the one seeking that contribution allow
a corresponding credit for the value of his sole occupancy
of the premises. To reject such a credit and nonetheless require
a contribution to operating and maintenance expenses from
someone who had enjoyed none of the benefits of occupancy
would be patently unfair.
The party seeking the credit for the other's occupancy of the property has
the burden of demonstrating the actual rental value of the property enjoyed
by the occupying co-tenant
•
•
This court takes a middle of the road approach between the majority and
minority rule and says the contribution amount should be offset by fair rental
value of the cotenant in possession’s sole occupancy
Get brit/linds’s notes on Twen cases chuck v. gomes, mcneely
45
Partition by Sale vs. In Kind?
Lose ancestral land in Chuck v. Gomes, utilitarian use of land prevails
McNeely – what is happening in the blackbelt of AL – getting land through intestacy
and some sell of their share to companies who partition for sale. McNeely argues
these partition claims are having disproportionate effect on rural areas (particularly
African-Americans) hard to prove unconstitutional bad intent.
Hawaii cases point to importance of land ownership where there is not plenty.
B.
Marital Property
1.
Common Law Foundation
o Reflected profound gender bias. Women lost ability to own, manage and
dispose of property (except clothing and jewelry). Law gave husband an
estate jure uxoris("by right of the wife") in all wife's land. He could use,
mort, or sell and could be reached by creditors. Married women couldn't
even enter into legal contracts or execute other legal docs.
 If he died, common law gave widow dower: 1/3 life estate in all
freehold land which:
• Was owned by husband
• Inheritable by his issue
o *these could not be cancelled during marriage and
were attached to property
o Curtesy-right of husband and arose at birth of
child, not marriage
o *Dower rights did not apply to joint tenancy
o *in few states still recognizing dower, applies to
both spouses.
o *many states passed Married Women's Property
Acts giving same rights as single women and
protected her property from husband's creditors
 MS was 1st state to enact Married Women's Property Actsequality of husband and wife. 2 ways to view:
• Empower wives to equal of husband
• Disempower husband so neither can transfer
2.
Separate Property System
a.
During the Marriage
i.
Property is separately owned by the spouse
who acquires it
ii.
The creditors of a particular spouse can only
attach the separate property of that spouse
b.
i.
Divorce
Most separate property states require the
equitable distribution of the property owned
by each spouse taking into account incomes,
46
•
•
standard of living, their contributions during
the marriage, their age and health, any
special needs, and the length of the
marriage
c.
Death
i.
Most states offer the surviving spouse a
“forced share” or “elective share” of the
decedent’s estate
ii.
This means the survivor has a choice:
Take under the decedent’s will, or
Receive a defined portion of the decedent’s estatewhich is usually 1/3 or 1/2 share
3.
Community Property System
a.
During the Marriage
i.
All earnings during the marriage and all
assets acquired from those earnings are
owned by both spouses equally
ii.
Each spouse holds an equal, undivided share
in the community property, although neither
can transfer that share to a third party
iii. Neither spouse has a right of survivorship
iv. Property acquired before marriage or after
marriage by gift or inheritance remains the
separate property of the individual spouse
b.
Divorce
i.
All community property is divided between
the spouses
c.
At Death
i.
Decedent may devise her half of the
community property and all her separate
property as she or he desires
ii.
The other half of the community property
belongs to the surviving spouse
iii. Does not provide a forced share to the
survivor
4.
Tenancy by the Entirety
a.
Only half the states
recognize
this
cotenancy
47
b.
May
offer
significant
protection
from
creditors
Case
Sawada v. Endo – can’t touch this!
Hawaii (1977)
• Endo was at fault in a car accident with the Sawada
sisters, and was found liable for about $25k.
o He had no liability insurance.
• Endo and his wife were owners, by tenancy in
entirety of a house. After the accident, they conveyed the
property to their sons, but continued to live there.
o Endo did not reserve a life estate.
o After the judgment, Endo' wife died.
o Obviously, Endo was attempting to hide the
asset so it couldn't be seized by Sawada.
 Hiding assets from creditors by giving
them away prior to a tort judgment is a
fraudulent conveyance, and is a criminal act.
• Sawada was unable to get the $25k from Endo, so
sued to have the conveyance set aside and seize the
property.
o Sawada argued that the judgment made them
defacto creditors of Mr. Endo. That means they
effectively held a lien on his property. Endo's actions in
giving his property away so it couldn't be seized
amounted to fraud.
• The Trial Court found for Endo and refused to set
aside the conveyance. Sawada appealed.
• The Appellate Court affirmed.
o The Appellate Court found that under Hawaii
law, a husband and wife do not have separate divisible
interests in property held in a tenancy in entirety.
 Mr. and Mrs. Endo did not individually
own anything, the house was owned by both of
them.
 For example, Mr. Endo could not take
out a mortgage on the property without Mrs.
Endo's permission. If it were a joint tenancy, Mr.
Endo could take out a mortgage on his interest in
the property.
o Since Mr. Endo didn't technically have an
individual interest in the house, there was nothing that
was subject to the claims of Mr. Endo's creditors.
48
 Endo couldn't sell the house or give it
away without his wife's permission, so therefore
he could never have it taken from him without
his wife's permission.
 Therefore, since Sawada could never
seize the property, it was not fraud for the Endos
to give it away.
• In a dissent it was argued that this was not fair to
the Sawadas, and that Mr. and Mrs. Endo each owned half
the property and that Mr. Endo's interest was severable from
Mrs. Endo's.
o That's the way it is under New Jersey State
law.
• The basic rule is that an estate by the
entirety is not subject to the claims of the creditors of
one of the spouses during their joint lives.
o You can't go after the assets of a spouse for
debts incurred by the other spouse.
 Except the IRS. The IRS ignores this
rule.
o If the property had been held under a joint
tenancy, then each Endo would own an equal interest
and that interest could be seized by a creditor (turning
it into a tenancy in common).
o If Mrs. Edno had died prior to judgment (and
the property hadn't been given to their sons), the
entire property would revert to Mr. Endo's exclusive
ownership, and it could have been seized by Sawada.
o Public Policy of protecting the Family.
Secures family future by not allowing debts, etc.
Should the court promote its idea of what family
means?
Reasoning
Group I - Coverture Model-(Massachusetts, Michigan, and North
Carolina)
o
Common law tenancy by the entireties, unaffected
by the Married Women’s Property Acts.
o
The possession and profits of the estate are
subject to the husband’s exclusive dominion and control.
o
The husband may convey the entire estate
subject only to the possibility that the wife may become
49
entitled to the whole estate upon surviving him.
o
The obverse of the wife does not hold true
o
In Mass., the estate in entirety is subject to levy
by the husband’s creditors
o
In NC and Mich., the use and income from the
estate is not subject to levy during the marriage for the
separate debts of either spouse.
o
Doesn’t really exist anymore.
Group II (Alaska, Arkansas, New Jersey, New York, and Oregon)

The interest of the debtor spouse in the estate
may be sold or levied for his or her separate debts, subject to
the other spouse’s contingent right of survivorship. Ex. In this
case, if the husband dies, they debtors can’t attack the wife’s
interest, but if she dies first, they can attach to the husband’s
interest. Creditor would have a defeasible interest.

Alaska: the interest of a debtor spouse in any
type of estate, except a homestead as defined and held in
tenancy by the entirety, shall be subject to his or her separate
debts.
Group III (Delaware, D.C., Florida, Indiana, Maryland, Missouri,
Pennsylvania, Rhode Island, Vermont, Virginia, and Wyoming)
•
An attempted conveyance by either spouse is
wholly void, and the estate may not be subjected to the
separate debts of one spouse only. Creditors can’t attach to
this!
Group IV (Kentucky and Tennessee)
•
The contingent right of survivorship of either
spouse is separately alienable by him and attachable by his
creditors during the marriage. The use and profits, however,
may neither be alienated attached during coverture. The right
of survivorship is levied upon. Creditor has a defeasible
interest.
THIS COURT:
o
Joins group III.
o
Under the Married Women’s Property Acts, the
interests of a husband or a wife in an estate by the entireties is
not subject to the claims of his or her individual creditors
50
during the joint lives of the spouses.
o
The tenancy by the entirety is predicated upon
the legal unity of husband and wife, and the estate is held by
them in single ownership.
o
A joint tenant has a specific, albeit undivided
interest in the property, and if he survives his cotenant he
becomes the owner of a larger interest than he had prior to the
death of the other tenant.
o
BUT, tenants by the entirety are each deemed to
be seized of the entirety from the time of the creation of the
estate.
o
AT COMMON LAW, for all practical purposes, the
wife had no right during coverture to the use and enjoyment
and exercise of ownership in the marital estate. All she
possessed was her contingent right of survivorship.
o
THUS, the effect of the MWPA was to place the
wife on a level of equality w/ him. The husband could no
longer convey, lease, mortgage or otherwise encumber the
property w/out her consent.
o
The wife became insulated in the estate from the
separate debts of her husband.
o
Neither husband nor wife has a separate divisible
interest in the property held by the entirety that can be
conveyed or reached by execution.
o
The tenancy by the entirety may only be divided
through joint action by the tenants by the entirety.
DISSENT
•
•
•
•
•
The Married Women’s Act was to elevate the wife’s right of
alienation of her interest to place it on a position of equality w/
the husband’s
The husband could already alienate his right of survivorship at
common law, and the wife, by virtue of the act, can alienate her
right of survivorship.
IF the wife takes equal rights with the husband in the estate,
she must take equal disabilities. Thus, the judgment creditors
of either spouse may levy and execute upon their separate
rights of survivorship.
The resultant restriction upon the freedom of the spouses to
deal independently w/ their respective interests is both illogical
and unnecessarily at odds w/ present policy trends.
Would hold that the separate interests of the husband in
entireties property, at least to the extent of his right of
survivorship, is alienable by him and subject to attachment by
his separate creditors, so that a voluntary conveyance of the
husband’s interest should be set aside where it is fraudulent as
to such creditors.
51
5.
Defining Marital Property
a.
Professional Degrees
i.
Majority-they are NOT property
ii.
Minority-they are property representing
investments in the economic partnership of
the marriage and the product of the
spouse’s joint efforts
CASE
Guy v. Guy (Mississippi 1999)
ISSUE
o Is a professional degree marital property?
o Majority approach is that
a degree is not property
but the majority
approach is also that a
contributing spouse
should be compensated
b. Premarital Agreements
i.
Engaged couples can normally avoid the
marital property system by contract
ii.
These agreements are valid so long as they
are signed voluntarily and under fair and
reasonable disclosure
6.
a.
Unmarried Couples
Some jurisdictions refuse to recognize claims for
palimony saying these agreements involve sexual
relationships outside of marriage and are
therefore contrary to public policy
In re Estate of Roccamonte, 808 A.2d 838 (N.J.
2002).
HOLDING
The New Jersey Supreme Court held that a married man's
estate must make a lump-sum payment to his longtime
paramour and cohabitant, whom he had promised to support for
the rest of her life.
52
RULE
•
The formation of a marital-type
relationship may legitimately and
enforceably rest upon a promise by one
person to support the other, the court
said. It is the undertaking of a way of life
that involves providing companionship
and forgoing other opportunities, among
other things. Entry into such a
relationship and then conducting oneself
in accordance with its unique character
is consideration that can be the basis for
an enforceable contract, the court found.
Accordingly, the court remanded for consideration of the
appropriate amount of support.
7.
a.
b.
Same Sex Marriage
Same sex couples can enter into agreements
about how their property will be shared.
But its unclear whether court will extend marital
property holdings to gay and lesbian couples
CASE
In re Marriage Cases
CA 2008
What would have to change to keep names separate but elevating all rights
for homosexuals? Fed benefits (tax, immigration, SS) teancy by the
entirety, intestacy statutes. Not available for
HOLDING
1.
Statutes that treat persons differently because of their
sexual orientation should be subjected to strict scrutiny
2.
The existing California legislative and initiative measures
limiting marriage to opposite-sex couples violate the state
constitutional rights of same-sex couples and may not be
used to preclude same-sex couples from marrying.
c.
Why Marriage?
i.
In re Marriage Cases court points out that
the state’s domestic partnership act
provides same sex couples with virtually all
the legal benefits and privileges California
law affords to married couples
53
54
VI.
LEASING REAL PROPERTY
Immutable Rules-supersede any contrary provisions in
the lease, usually to protect vulnerable residential interests
Default Rules-fill in the gaps that the parties did not
address in the lease.
The parties can ignore default rules in
lease negotiations but they cannot evade an immutable rule
A.
Creating the Tenancy
1.
Selecting the tenant
o Fair Housing Act 42 U.S.C. 3601- made illegal to:
 Refuse to sell or rent or negotiate for sale or rent
based on race, color, sex, religion, familial status
(those w/ children, pregnant, or similar), or
national origin.
 Discriminate for previous reasons in sale or rent
 Make, print, or publish a notice, statement, or
advertisement w/ respect to sale or rent indicating
preferences based on previous reasons
 Also includes handicaps (alcoholism, AIDS, etc)
familial statuts definition p. 444
Fair Housing Act
Sec. 804. [42 U.S.C. 3604] Discrimination in sale or rental of housing
and other prohibited practices
As made applicable by section 803 of this title and except as exempted
by sections 803(b) and 807 of this title, it shall be unlawful—
55
(a) To refuse to sell or rent after the making of a bona fide offer, or to
refuse to negotiate for the sale or rental of, or otherwise make unavailable or
deny, a dwelling to any person because of race, color, religion, sex, familial
status, or national origin.
(b) To discriminate against any person in the terms, conditions, or
privileges of sale or rental of a dwelling, or in the provision of services or
facilities in connection therewith, because of race, color, religion, sex, familial
status, or national origin.
(c) To make, print, or publish, or cause to be made, printed, or published
any notice, statement, or advertisement, with respect to the sale or rental of a
dwelling that indicates any preference, limitation, or discrimination based on
race, color, religion, sex, handicap, familial status, or national origin, or an
intention to make any such preference, limitation, or discrimination.
(d) To represent to any person because of race, color, religion, sex,
handicap, familial status, or national origin that any dwelling is not available for
inspection, sale, or rental when such dwelling is in fact so available.
(e) For profit, to induce or attempt to induce any person to sell or rent
any dwelling by representations regarding the entry or prospective entry into the
neighborhood of a person or persons of a particular race, color, religion, sex,
handicap, familial status, or national origin.
Discriminating against a potential lessor
56
2.
Neithamer V. Brenneman Property Services, Inc.
USDC, District of Columbia 1999
FACTS
•
•
•
•
•
•
•
•
P is gay and HIV positive. P sues D under Fair
Housing Act and the D.C. Human Rights Act
September 1997 P contacted D in response to
an ad about a townhouse. P viewed the
property and filed an application with D
P provided the agent bank statements, credit
references and informed that there was one
period in his credit history when he failed to
make payments-told them the reason was
medical expenses for his lover who died of
AIDS
Owner of the property rejected the application
P offered to do several things-pay rent early,
get a co-signor
P was rejected and called to find out why and
said he felt as though he was being
discriminated against
Response from D was “if you try to sue me, I
have a pack of bloodsucking lawyers who will
place countersuits against you for libel and
drive you to the ground”
P filed suit claiming discrimination under FHA
and DCHRA and intimidation and coercion
PROCEDURE
o D filed MSJ arguing there was no basis of fact
to either claim
REASONING
o P must show a prima facie case of
discrimination by showing:
1.
Member of the protected class and D knew or
suspected he was
2.
Applied for and was qualified to rent the property in
question
3.
D rejected his application
4.
The property was available afterwards
o Once P establishes a prima facie case, burden
57
shifts to D to provide a legitimate, nondiscriminatory reason for rejection of the P
application
o If D satisfies the burden then P must show
that the reasons and pretext or that material
facts are disputed
o The last two elements are undisputed here
o Element 1
o P told the D his lover died of
AIDS
o Because of stereotyping, D
likely suspected P had
sexual relations with that
person and was probably
exposed to AIDS
o D failed to make exceptions
to their rule which they had
done for others in the past
o Element 2
• P credit was not great
• But D knew that the one time credit issue had to do
with medical bills
• P had significant assets in his bank accounts
• P had credit references
• Offered to pay one years’ rent up front
• P was qualified to rent the property
o D reasons for rejection
o P credit extremely poor such that any
reasonable real estate agent would have
rejected it
o The decision to reject P application and offers
were made by the owner for whom D was only
acting as a agent
CLASS NOTES
o P here uses disparate treatment claim
o Disparate treatment-don’t have to prove
intent to discriminate
o Disparate impact-use statistical evidence that
some percentage of tenants are not in
protected group Rebuttable presumption of 1)
58
3.
statistical or 2) policy perpetuates segregationist
policies
Exemptions from Fair Housing Act
a.
if the owner occupies one of such living quarters
as his residence Rooms or units in dwellings
containing living quarters occupied by no more
than four families living independently of each
other
b.
if he owns less than three houses and does not
use a real estate broker or agent in the sale or
rental Any single-family house owned or rented
by an owner
4.
c.
Only sections a, b and f
d.
Advertising provision applies no matter what
Selecting the Estate
Four Nonfreehold Estates
a.
Terms of Years Tenancy
i.
Has a fixed duration which is agreed upon in
advance
ii.
Once the term ends, the tenant’s possessory
59
right automatically expires and the landlord
may retake possession of the premises
iii.
Example-L leases to Greenacre to T “From
July 1, 2009 until June 30, 2019” T’s estate
ends at midnight on June 29, 2019
iv.
Commonly used in commercial leases
v.
Expires on own at the end of the fixed term
without either party giving notice
vi.
Doesn’t have to be for “years” can be for
days, weeks, months or any time
vii.
Grantor has reversion
viii. There must be a specific and definite start
and end date
b.
Periodic Tenancy
i.
Automatically
periods
unless
renewed
the
for
landlord
successive
or
tenant
terminates the tenancy by giving advance
notice
ii.
L leases “from month to month, beginning
60
July 1, 2009” To end the tenancy, either L or
T must give one month’s notice to the other
iii.
Generally advance notice equal to one
period term must be given but if it’s a one
year periodic tenancy then six months
typically required
iv.
Termination must coincide with natural end
of the period
Hypo: I have a Month to month lease thru May 1st. Dec 15th tenant gives notice to terminate on
Jan. 15th. Doesn’t coincide w/ natural end of period (dec. 31 or Jan 31). So, would have to hold lease
until Jan. 31st. Not after. *At end of next full period.
c.
Tenancy at Will
i.
Has no fixed ending point and continues
“only so long as both the landlord and
tenant desire”
ii.
Example…L leases “for as long as both of us
wish”
iii.
Often
this
estate
arises
by
implication
without an express agreement
iv.
At common law, with the landlord or the
tenant
could
end
the
tenancy
without
advance notice to the other
61
v.
Today, most states require advance notice
to end this tenancy usually equal to the
period of time between rent payments
vi.
Tenancy
automatically
terminates
1)
if
either party dies, 2) the tenant abandons
possession or 3) the landlord sells the
property
vii.
No fixed duration and no defined renewable
periods
d.
Tenancy at Sufferance
i.
Created when a person who rightfully took
possession of land continues in possession
after that right ends
ii.
Arises
from
the
occupant’s
improper
conduct, not from an agreement
iii.
This
could
also
be
called
a
wrongful
occupancy
General Notes on Leases
Lease-transfers
rights
to
use
and
possess/transferring exclusive right of possession
62
o With every leasehold there is an estate in
the tenant
o With every leasehold there is a reversion in
the landlord
o With every leasehold there is exclusive
possession and control of the land in the
tenant
o Generally, there is a contract between the
parties
Leases
Distinguished
from
Non-Possessory
Interests
License-personal privilege to use land for
some
reason-not
a
right-revocable
grant
of
permission to enter land for a specific purpose
Easement-permits the holder to enter land
and make particular use of the land in someone
else’s possession
Profit-right to enter the land but holder can
also remove part of the land-right to remove
timber, minerals, oil and gas, etc.
5.
Negotiating the Lease
a.
SOF
i.
Lease of real property for more than a
year must be in writing in order to be
enforced
ii.
In order to meet the standard, the lease or
document must contain the key lease terms
63
(party, property, duration, and rent) and be
signed by the party against whom
enforcement is sought
**6. Delivering Possession
American
versus
English
Rule
about tenants
“American Rule”
•
•
•
•
•
Landlord merely covenants that possession will not be withheld
by him or by one having paramount title.
• Only provides legal right to the property
• The lessor has conveyed the sole and exclusive right of
possession to the tenat so the landlord has no action against the
holdover tenant
• Incoming tenant has superior legal right to possession so the
landlord cannot sue holder
• REMEDIES
Incoming tenant may sue the holdover tenant to recover possession and damages
but she has no claim against the landlord
Can sue for possession and damages
Incoming tenant may not terminate the lease but can sue the holdover tenant
Incoming tenant may NOT sue the landlord
“English Rule”
•
•
•
•
•
Requires that when the lease is silent on the point, the
landlord deliver actual possession of the premises at the
beginning of the term
Lessee’s rights are based on breach of the lessor’s implied
covenant that he has a right to lease the premises, or of the
implied undertaking that the lessor will deliver possession
to the lessee
If the lessee cannot take possession because of a holdover
tenant, or some other obstructing third person, the landlord
is in breach of his obligation
Implied duty to put tenant in actual possession on first day
of lease term unless the lease specifically disclaims such an
obligation
Obligation to deliver physical and legal possession
64
•
•
o
o
o
o
•
• Rationale
Landlord is better able to protect himself in the lease document by expressly limiting
or disclaiming his obligation to deliver possession, or else by requiring security of a
prior tenant in possession that he will not hold over
The landlord may have a remedy in damages against a holdover tenant
Can treat holdover tenant as a trespasser and evict
May treat holdover tenant as a periodic tenant and allow for them to adhere or abide
to terms
Some statutes allow landlord to collect double rent
Landlord can notify tenant that future occupancy will be under new terms usually
including higher rent
Landlord is in better position to appraise, anticipate, and bear the risk of loss than a
prospective tenant not yet in possession
• REMEDIES
• Tenant may terminate the lease and sue the landlord for damages
• Alternatively, she may affirm the lease, pay no rent until the
premises are vacant and collect damages from the landlord
B.
Condition of the Premises –
Redefining the landlord-tenant relationship over time. CL Caveat Emptor, Tenant had
responsibility and Permissive Waste, shifts to Implied Covenant of Quiet Enjoyment not to
wrongfully interfere, shifts to revolutionary Implied Warranty of Habitability. Take a look at p.
473 note a
1.
The Challenge of Substandard Housing
2.
Constructive Eviction – (as a defense)
a.
Common law offered special protection for the
tenant in defective leased premises
Wrongful
conduct
by
the
landlord
that
substantially interfered with the tenant’s
beneficial use and enjoyment of leased premises
was deemed a constructive eviction
i.
Under these circumstances, the tenant could
vacate the premises and end the lease, thus
avoiding liability for future rent
Evolved out of an implied covenant of quiet
enjoyment-a promise by the landlord that he
would not wrongfully interfere with the tenant’s
possession
i.
Promises in a lease were originally viewed
b.
c.
65
d.
e.
f.
g.
h.
i.
j.
k.
as independent covenants, so landlord’s
breach of this covenant did not excuse the
tenant’s continued performance
- BUT there was one exception-ACTUAL eviction
Over time, constructive eviction evolved out of
this doctrine
Both action and lack of action can constitute
constructive eviction
The landlord is not responsible for actions of third
parties but this rule applies only when the
landlord does not permit the third party to act
A constructive eviction results from a landlord’s
failure to keep the premises in a tenantable
condition
Untentability exists when the interference with
occupancy is of such a nature that the property
cannot be used for the purpose for which it was
rented
A constructive eviction cannot exist where the
tenant does not surrender the property
Following a constructive eviction, a tenant is
required to vacate the premises immediately, but
is entitled to reasonable time to do so
The tenant bears the burden of proving that he
did not abandon the premises within a reasonable
time
l.
“Wrongful conduct” standard is met when a
landlord
i.
Fails to perform an obligation in the lease
ii.
Fails to adequately maintain and control the
common area
iii. Breaches a statutory duty owed to the
tenant
iv. Fails to perform promised repairs
v.
Allows nuisance like behavior
m.
Third Parties
i. Many courts and the Restatement allow a
66
tenant to assert constructive eviction due to
the acts of third parties if the landlord has a
legal right to control the third partyconduct
n.
Steps
1.
2.
Tenant must notify landlord of the problem
Tenant must give the landlord a reasonable
period to fix the problem
3.
Tenant must vacate the premises
 Some states allow a tenant to remain in
possession and recover damages on a
constructive eviction theory
3.
Implied Warranty of Habitability –THE REVOLUTION!!!
a.
Designed to protect ordinary consumers who do
not have the knowledge, capacity, or opportunity
to ensure that goods which they are buying are in
safe condition
b.
Landlord warrants that the leased premises are
habitable at the outset of the least term and will
remain so during the tenancy
c.
Does not require the landlord to maintain the
premises in perfect condition at all times
d.
Does not preclude minor housing code violations
or other defects
FACT QUESTION = HABITABLE??
e.
Landlord is not responsible for defects caused by
the tenant
f.
Landlord must have reasonable time to repair the
defects before a breach can be established
g.
Requires that landlord maintain “bare living
requirements” and that premises are fit for
human occupation
h.
Failure to supply hot water or heat breaches the
warranty but a breach is not shown in a
malfunction of blinds, minor water leaks or need
for paint
i.
A code violation is not necessary to establish a
breach so long as the claimed defect has an
impact on the health or safety of the tenant
67
j.
Remedies for Breach – IMP – KNOW THESE! P. 483
1. WITHOLD RENT - Tenant may withhold rent
may motivate the landlord to repair
damages
2. REPAIR AND DEDUCT - Tenant may continue
to pay rent to the landlord and bring an
affirmative action to establish breach and
receive a reimbursement for excess rent
paid
3. SUE FOR DAMAGES
A.
Special damages may be recovered when
the tenant suffers personal injury, property
damages, relocation expenses, or other
similar injury due to a foreseeable result of
landlord’s breach
ii.
General damages are recoverable in the
form of rent abatement or reimbursement to
the tenant-these are more difficult to
calculate
 Courts can use fair rental value of the
premises as warranted less their fair rental
value in the unrepaired condition
• Under this approach rent may be
considered as evidence of the value of
the premises warranted
 Another measure is the contract rent less
fair rental value of the premises in
unrepaired condition
 Some courts use percentage dimunition
where the tenant’s recovery reflects the
percentage by which the use and enjoyment
of the property has been reduced by
uninhabitable premises
l.
Most courts hold that any waiver of warranty
is invalid as against public policy
m. Procedure
i.
Tenant must notify the landlord about
the defects and allow a reasonable
time for landlord to make repairs
ii.
Tenant not required to vacate the
68
C.
subleasing
premises
n.
Remedies
i.
Withhold rent
ii.
Repair and deduct
iii. Sue for damages
o.
In most states, warranty of habitability does
not apply to commercial leases
Transferring the Tenant’s Interest – Assigning and
1.
•
Basically, an assignment occurs when a lessee
transfers his entire interest under the lease
(including right to possession for the duration
of the lease). Leaving nothing
•
If the lessee transfers anything less than
their entire interest (for example only one
year out of a two year lease), then it is a
sublease. Reserves a reversionary interest
Assignment or Sublease?
a.
Majority Approach-Objective Test
i.
Did
the
tenant
transfer
his
right
of
possession for all of the remaining lease
term? If so, it is an assignment. If not, then
it is a sublease
ii.
If transfer for entire duration then it is an
assignment
iii.
If transfer less than entire balance, it’s a
69
sublease and the tenant retains a reversion
b.
Minority Approach-Subjective Test
i.
It would be possible to have a sublease for
the entire remaining term of the original
lease
ii.
Look to the intent of the parties
2.
Assignments-A Triangular Relationship
a.
The tenant (assignor) transfers (assigns) her
entire interest in the leases premises to a third
party (assignee)
If T assigns her rights in a short store space to U,
PRIVITY OF CONTRACT still exists between T and
L(landlord) and PRIVITY OF CONTRACT arises
between T and U.
b.
But PRIVITY OF ESTATE only exists between L and U.
In effect, U has taken T’s place. L and U are still
obligated to perform all the covenants in the
original lease that “run with the land” (duties to
pay rent, repairs, provide heat, use for specific
purposes)
c.
In order for duties to “run with the land” privity of
estate must exist
3.
SUBLEASES -Two Separate Relationships
a.
A sublease essentially involves two separate
70
landlord-tenant relationships.
sublessor)
transfers
The tenant (the
(subleases)
part
of
her
interest in the leased premises to a third party
(the sublessee)
b.
The original landlord­tenant privity of contract and
privity of estate remain in tact
c.
Tenant and sublessee also have privity of contract and
privity of estate
d.
Third party has no duty to pay rent to landlord but if T
fails to pay the rent then landlord can evict the third
party
4.
a.
Transfer Issues/Landlord Consent
If L and T enter into lease that requires L consent to
any transfer by T what standard governs L’s decision.
Three basic possibilities:
i.
Sole discretion clause – owner may refuse
consent for any reason
ii.
Reasonableness clause – owner may refuse
consent only on commercially reasonable basis.
Ex: bad credit record
iii. No standard in lease – requires owner’s
consent but no standard to guide decision
(silent consent clause)
b.
Silent Consent Clause
i.
Majority Rule
• Where a lease contains an consent clause,
the lessor may arbitratily refuse to approve
71
a proposed assignee no matter how suitable
the assignee appears to be and no matter
how unreasonable the lessor’s objection
• Came under attack just prior to 1985
ii
Minority Rule
o Consent may be withheld on where the
lessor has a commercially reaonsable
objection to the assignment even if the
clause is silent about reasonableness
o Landlord must have commercially
reasonable basis for withholding
consent
Original tenant remains liable under both assignment and sublease b/c of privity of contract.
Owner can release original tenant (called novation) from liability.
HYPO 1: 3 yr lease to Rogers who assigns remaining interest to Conditt who assigns remaining
interest to Eldridge. Who can Greene get rent from?
Edlridge-privity of estate (possession, reversion, and ?
Rogers-privity of contract
Can't sue Conditt b/c he has neither
HYPO 2: Greene landlord. Eldridge 1 year lease. Garrety lives there 3 months in summer while
he is in ATL. Who can Green get rent from?
Eldridge only. Sublease so reversionary interest in Eldridge. If last 3 months of lease-could
argue assignment
HYPO 3: Greene landlord. Rogers 5 yr lease. Gives remaining to Conditt but retains right to
reentry if Conditt defaults. Sublease or assignment?
Historically, contingent right to reentry not regarded as estate. So it would be assignment, not
sublease. Modern view would be right to reentry is substantial right (estate) to make it a sublease.
**Know difference in privity of estate and privity of contract.
•
•
•
KENDALL V. ERNEST PESTANA – applies only to
commercial leases
Perlitch leased a hangar at the San Jose Airport.
Perlitch assigned his interest to Pestana. Pestana
subleased the hangar to Bixler for 25 years (Bixler
was to pay Pestana) for his airplane repair business.
After 11 years, Bixler sold his business to Kendall.
As part of the purchase agreement, Bixler was to
assign the sublease to Kendall. However, Pestana
balked.
o According to the original agreement, the
written consent of the lessor (Pestana) was
72
•
•
•
required for Bixler to assign the property to
Kendall.
o Kendall was in better financial shape than
Bixler.
Pestana demanded increased rent as a condition of
consent. Kendall refused and sued, arguing that
Pestana's refusal was unreasonable and amounted
to an unlawful restraint on the freedom of
alienation.
o Alienation is the right to sell your property
interest without constraint.
The Trial Court found for Pestana. Kendall appealed.
The California Supreme Court reversed and
remanded for trial.
o The California Supreme Court noted that the
lease had a clause requiring consent. They
also recognized that a majority of jurisdictions
would find the clause bindings.
o However, the Court changed the common law
and found that for reasons of Property law
and Contract law, the clause was void if
Pestana acted unreasonably.
 In Property law, the Restatement of
Property 15.2(2) says that, "a
restraint on alienation without the
consent of the landlord of a tenants
interest in leased property is valid, but
the landlord's consent to an alienation
by the tenant cannot be withheld
unreasonably."
 In Contract law, "where a contract
confers on one party a discretionary
power affecting the rights of the other,
a duty is imposed to exercise that
discretion in good faith and in
accordance with fair dealing."
o Pestana unsuccessfully made four arguments
that had been used to deny consent:
 The lessor made a personal choice of
lessee. They should not be forced to
accept a new tenant.
 The lessee could have bargained for a
more liberal sublease policy, but chose
not to do so.
 The issue had already been decided in
numerous courts and should not be
73
changed, since many lessors relied on
the original rule.
 If the value of a property increases, the
lessor has a right to raise rents to
compensate.
o The Court found that whether Pestana was
acting reasonably was a question for a jury to
decide.
 Denying consent solely on the basis of
personal taste is not commercially
reasonable.
 Denying consent because you want to
squeeze a higher rent out of the new
tenant is not commercially reasonable.
(a)
Factors to consider in applying standards of good faith and
commercial reasonableness
•
•
•
•
•
Financial responsibility of the proposed assignee
Suitability of the use for the particular property
Legality of the proposed use
Need for alteration of the premises
Nature of the occupancy (office, factory, clinic, etc.)
(b)Tenant has the burden of proof on unreasonableness
•
•
The ruling in this case was eventually codified into
Statutory law by the California legislature.
Court gives two reasons for imposing commercially
reasonable standard
1. Treat
the
lease
as
a
conveyance-promotes
alienability
2. Treat the lease a contract-good faith and fair
dealing standard
Commercially Reasonable Standard
What is NOT commercially reasonable?
74
1. Personal taste
2. Inconvenience
3. Where you try to charge higher rent than originally
contracted for
What is commercially reasonable?
1. Preserving the image of some property in favor of the
main tenant
2. Desire for good tenant mix/diversity
3. Where lessor believes assignee’s business would not
succeed
D.
Ending the Tenancy – if the parties agree to terminate early,
called a surrender
1.
a.
b.
c.
Abandonment
RST 2ND: Abandonment of a premises by the
tenant occurs when he vacates the leased
property without justification and without any
present intention of returning and he defaults in
the payment of the rent.
i.
If the tenant vacates with justification-due to
constructive eviction, etc-no abandonment
occurs
If T abandons the leased premises before the
lease terms ends, traditionally, landlord L could
choose among three options:
i.
Sue for all rent-L could keep the premises
vacant until the lease term expired, and
then sue T for all the accrued rent
ii.
Terminate the lease-L could treat T’s
abandonment as an implied offer of
surrender and terminate the lease
iii. Mitigate damages and then sue for
rent-L could mitigate his damages by
reletting the premises to another tenant,
retaining that rent and then suing T for the
balance
At common law, the landlord had no duty to find
75
a new tenant but now there is a duty to mitigate
damages
o The New Jersey Supreme Court found that a landlord does
have an obligation to make reasonable efforts to mitigate
damages, even if the apartment was wrongfully vacated.
o The burden is on the landlord to prove he used
reasonable diligence in attempting to re-let the
premises-here the court should consider the
following factors:
1. Whether the landlord, personally, or through an
agent, offered or showed the property to any
prospective tenants
2. Advertisements in newspapers
3. Tenant may rebut such evidence by showing that
he proferred suitable tenants who were rejected
*Most states follow the Sommer rule-after abandonment, the
landlord must either terminate the lease or mitigate damages
*Restatement of Property still follows traditional approach of NO
mitigation
d.
i.
ii.
Majority Rule when tenant abandons
Terminate lease or sue for damages and
mitigate damages
Burden on landlord to prove took reasonable
efforts to mitigate
e.
What are reasonable efforts to mitigate damages
i.
Showing to all prospective tenants
ii.
Advertise through newspapers, signs in windows
iii. Landlord need not accept less than fair market value
iv. Landlord does not have to substantially alter
obligations established under the preexisting lease
v.
If asking for higher rent just for negotiation
purposes then that is reasonable
2.
Security Deposits??
3.
Eviction
76
a.
Retaliation Issues - Hillview Associates v. Bloomquist
FACTS -Tenants at a mobile home park began to organize and meet informally to discuss
concerns over the physical condition of their mobile home park
Relationship declined, Another meeting resulted in some type of physical altercation
After the meeting the management served ultimatums on all tenants requiring them to sign park
rules or be evicted
Management also sought out tenants not in the tenants’ association in an attempt to start a rival
association favoring management
Management served a 37 day termination notice on a group of married couples at the meeting
Former secretary for manager said “we’ll get these now and the rest later so it wouldn’t look
like we’re doing it because they were members of the association
REASONING
Iowa adopted Mobile Home Parks Residential Landlord and Tenant Act
Evidence of a complaint within six months prior to the alleged act of retaliation creates a
presumption that the landlord’s conduct was in retaliation
Presumption means the trier of fact must find the existence of the fact presumed unless and
until evidence is introduced which could support a finding of its nonexistence
This presumption imposes a burden on the landlord to produce evidence of legitimate nonretaliatory reasons to overcome the presumption
Tenant is then afforded a full and fair opportunity to demonstrate pretext
c.
Procedure for Eviction
i.
TRADITIONALLY, L could evict T in one of two ways:
1. Use self-help: L could retake possession through self-help by physically
entering the premises and causing T to leave-so long as L only used a reasonable
amount of force
OR
77
2. Sue the tenant: L could sue T, secure a judgment ordering T’s eviction, and
have the judgment enforced by a law enforcement officer
NOWADAYS: A landlord may use self-help to retake possession of a leased property as long
as: The landlord is legally entitled to take possession. AND The landlord does it peaceably.
The Court defined non-peaceable as anything that could possibly lead to a
confrontation. They construed the law so narrowly that pretty much the only way a
repossession could be peaceable was if the tenant had completely abandoned the property.
o Basically, the Court was saying that if there is a dispute with a lease, the landlord
should not take the law into their own hands and lock out the tenant. They should go to
court and get a court order to do so.
o "The only lawful means to dispossess a tenant who has not abandoned nor voluntarily
surrendered but who claims possession adversely to a landlord's claim of breach of a
written lease is by resort to the judicial process."
o In the past, landlords had to resort to doing it themselves (aka self-help) because the
judicial process for kicking someone out (aka ejectment) was slow and cumbersome.
But modern laws have attempted to make a summary proceeding to eject a deadbeat
tenant relatively quick and straightforward.
This case basically says never is there time where there is a self-help without breach of the
peace
Landlord can only use self help where the tenant has clearly abandoned or surrendered
VII. PRIVATE LAND USE PLANNING
– CLASS THEME: WE WANT PRODUCTIVE USE OF LAND, BUT THIS
CONFLICTS WITH CERTAIN RESTRICTIONS , AKA “I do what I want
with my property” versus “gov’t, CIC, other people’s restrictions”
A.
•
•
•
•
•
Easements – know the 4 types
Express
Implied Easement by Prior Existing Use
Easement by Necessity
Prescriptive Easement
Easement by Estoppel (Irrevocable License)
78
Terminology
Dominant tenement or dominant land-the land benefited by the
easement
Servient tenement or serviennt land-the land burdened by the
easement
Dominant owner-easement holder
Servient owner-owner of servient land
Appurtenant easement-benefits the holder in her use of a specific parcel
of land
Easement in gross-is not connected to the holder’s use of any particular
land-it is personal to the holder
Affirmative easement-allows the holder to perform an act on the
servient land
Negative easement-allows the holder to prevent the servient owner from
performing an action on the servient land
Merger – where 1 owner owns both the dominant & the servient estate –
no longer an easement
1.
Creating Easements
a.
Express Easement by Grant
i.
Arises when the servient owner grants an
easement to the dominant owner
b.
i.
Express Easement by Reservation
Arises when the dominant owner grants the
servient land to the servient owner but
retains or reserves an easement over that
property
79
c.
d.
e.
Express Easements may be created only in a
writing that satisfies the SOF and will include:
i.
Identity of the parties
ii.
Describe the servient land
and the
dominant land (if any)
iii. Describe the exact location of the easement
on the servient land
iv. State the purposes for which the easement
may be used
and be signed by the parties
Traditionally, express easements by reservation
could only be reserved in favor of the dominant
owner, / but the modern decisions allow this
easement to be reserved in favor of a third party
Easement v. License – if vague on EXAM, ARGUE
BOTH
i.
License-an informal permission that allows
the holder to use the land of another for a
particular purpose but it is not an interest in
land
f.
Transfer
i.
An appurtenant easement is seen as
attached to the land so the transfer of the
dominant land automatically transfers the
benefit of the easement to the grantee
ii.
In some states an easement in gross is only
transferable if it serves a commercial
purpose but the modern trend is to allow the
transfer of an easement in gross unless the
parties had a contrary intent
NOTES
←
- If the owner has a limited right to exclude and the right to use is continuous for a deifinite
period of time then the interest will likely be an easement not a license
←
- If the owner retains a right to exclude and it is not for a definite period of time then more than
likely this will be a license
←
←
Greene calls the easement in this case an appurtenant easement because it continued to burden
the land and was not purchased by a bona fide purchaser
←
If the status of a bona fide purchaser is met then it would have been an easement in gross
←
To have a bona fide purchaser the following must exist:
80
The purchaser paid value and the taking was in good faith, AND
The purchaser had no notice of the previous conveyance
Appurtenant versus In Gross Easements According to
Greene
Appurtenant
Intended to run with the land such that the benefit of the
easement will pass to any future owner of the dominant estate
and the burden will be imposed on any future owner of the
servient estate
Senger says an easement is intended to be appurtenant and will
run with the land only if:
Intended to run with the land
If the intention is in writing
If owner of servient estate purchases with notice of the
easement
Notice is not the distinguishing factor deciding whether an
easement is in gross or appurtenant but notice is relevant when
we talk about the expectation that it will be run with the land
Three types of notice
Actual-the owner in fact has knowledge of the easement
Constructive-deeds recorded and in those deed the easement
is mentioned and the deed is recorded in proper place and the
deed is in the chain of title then the purchaser is said to have
constructive notice
Inquiry-visible signs of use by non-owners prompting a
reasonable owner to do further investigation
In Gross
Not intended to be attached to any particular ownership of a
piece of land-not intended to be attached to any possessory right
of some piece of land
81
If at the time of creation, the parties intended it to be a
permanent grant then you could say it’s an appurtenant.
Look at the following factors
Was the easement meant to provide irrevocable access to a
certain land?
Was it intended to bind future owners of the servient estate?
If the answer is yes to either of these then you may view it
as an appurtenant easement
g.
Implied Easement by Prior Existing Use
Three elements usually required
1.
Severance of title to land held in common
ownership
2.
An existing, apparent, and continuous use of
one parcel for the benefit of another at the
time of the severance
3.
Reasonable necessity for that use
• Reasonableness test-the easement must be
beneficial or convenient for the use of the
dominant tenement, but need not be essential
• Restatement defines reasonable necessity as
meaning that alternative access or utilities
cannot be obtained without a substantial
expenditure of money or labor
Implied easement by prior existing use can
arise by grant or reservation & prior use must be
there when severance occurs
h.
Easement by Necessity
Required Elements
o 1. Severance of title to land held in common ownership and
o 2. Strict necessity for the easement at the time of
severance
• Traditionally, strict necessity is found only when the owner has no
legal right of access to her land-Thus, the parcel may be
82
surrounded by privately-owned land, and the owner must not have
a right to cross that land to reach a public road
Minority of courts require only reasonable necessity-the easement
must be beneficial of convenient for the use of the dominant
parcel, but not absolutely necessary (Restatement only requires
reasonable necessity)
**If bridge falls down AFTER Easement by Necessity is created,
then eas. Holder is OUT OF LUCK
o An easement by necessity will not arise if this would
contradict the actual intent of the parties
o An easement by necessity will only last so long as the
necessity continues
o Generally, the owner of the servient land is entitled to
select the route for an easement by necessity, as long as it
is reasonable
•
Greene distinguishes necessity versus prior use: 1. Implied easement of necessity – ONLY last as
long as needed,
*Not true with easement by prior use – unlimited duration. 2. Reas. Nec. Vs. Strict Nec. State of
Vermont Case reflects an INSTRUMENTALIST view – navigable water
exception, contemporary realities
i.
Prescriptive Easements
i.
Elements - CHO
• 1. Continuous for the statutory period
• 2. Hostile (Adverse without permission)
• 3. Open and notorious
ii.
Most states presume adversity and hold that
continuous use of an easement over a long
period
of
time
without
a
landowner’s
interference is presumptive evidence of its
existence
83
iii.
Traditionally, the public could not acquire a
prescriptive easement, but many modern
courts
recognize
public
prescriptive
easements
generally, PERMISSION will defeat easement by prescription but will not defeat Easement
by Estoppel
j.
Easement
by
Estoppel/Irrevocable
License
Elements
1. A landowner allows another to use his land, thus creating a
license
• 2. The licensee relies in good faith on the license, usually by
making physical improvements or by incurring significant
costs and
• 3. The licensor knows or reasonably should expect such
reliance will occur
•
2.
Interpreting Easements
Traditional rule is that the location of an
easement can be changed only if both the servient
and dominant owners agree
but the Restatement provides that the servient
owner may relocate an easement as long as this does
not significantly lessen the utility of the easement,
increases the burdens on the easement holder, or
frustrate the purpose of the easement
*Public Policy reasons for the majority – strict interpretation = potential
purchasers need to be able to rely on the terms (can’t have
them shifting)
Second, does the proposed use result in serious material burden on the
servient land? If yes, like splitting it up completely to like 4
users, easement goes beyond original scope
84
The public policies behind these rules of easements are to
promote certainty in land transactions, and for owners to be assured
that their conveyances will not be construed to undermine privateproperty rights.
1.
2.
3.
4.
Greene commentary:
For landowners giving easements, make sure the easements are limited in their grants as
to what may and may not be put in the easement premises.
Make sure you are compensated.
And draw these grant provisions narrowly to make sure you are compensated yet again,
and again, and again, every time the easement is used for additional or different
purposes.
Of course, if you’re acquiring the easement, pay once, and get everything, including the
right to assign parts of your easement rights. Then you can be the one compensated over
and over.
RULES
1. Apply contract construction and the contracting parties’ intentions, as
expressed in the grant, determine the scope of the conveyed interest
2. When the grant’s terms are not specifically defined, they should be given
their plain, ordinary, and generally accepted meaning
3. If a particular purpose was not provided for in the grant, a use pursuing that
purpose is not allowed
4. The manner, frequency, and intensity of an easement’s use may
change over time to accommodate technological development but
such changes must fall within the purposes for which the easement
was created-as determined by the grant’s terms
ZUNI TRIBE RULE
3.
Terminating Easements
A.
i.
Abandonment
Most jurisdictions agree that mere nonuse of
an easement is not abandonment
B.
i.
Prescription
An easement may be terminated by
prescription, using essentially the same
standard for acquiring a prescriptive
easement
85
ii.
4.
a.
If the servient owner blocks use of the
easement in an open and notorious
adverse and hostile and continuous
manner for the prescriptive period, the
easement ends
Negative Easements
An easement that entitled the dominant owner to
prevent the owner from performing an act on the
servient land
VIII. PROMISORY SERVITUDES: REAL COVENANTS AT LAW AND
EQUITABLE SERVITUDES
REAL COVENANT
EQUITABLE SERVITUDE
Intent to Bind Successors
Intent to Bind Successors
Touch and Concern
Touch and Concern
Privity of Estate
Notice
Horizontal
(actual,
constructive,
inquiry)
Vertical
Remedies are: money damages
Remedy: Injunctive Relief
& injunctive relief
86
REAL COVENANT REQUIREMENTS
For the Burden to
For the Benefit to
Run
Yes
Yes
Run
Yes
Yes
Successors
Touch and
Yes
Yes
Concern
Notice
Horizontal Privity
Vertical Privity
Yes
Yes
Yes
No
No
Yes
For the Burden to
For the Benefit to
Run
Yes, or common
Run
Yes, or common
Statute of Frauds
Intent to Bind
EQUITABLE SERVITUDE REQUIREMENTS
Statute of Frauds
plan
Yes
plan
Yes
Successors
Touch and
Yes
Yes
Concern
Notice
Horizontal Privity
Vertical Privity
Yes
No
No
No
No
No
Intent to Bind
Distinctions between real covenants and equitable servitudes
Available remedy for breach
For real covenant-monetary damages or injunction
For equitable servitude-injunction or specific performance
Doctrines that terminate the two obligations
Abandonment terminates real covenants and equitable servitudes
87
Acquiescence, unclean hands, and relative hardship only terminate
equitable servitudes
Requirements for Creation
Covenant requires:
Intent of parties
Privity of estate
Touch and concern
American courts require notice
Equitable servitude requires:
All except privity
A.
History
First phase.
English Resistance
a.
Concerned by negative easements for procedural
and conceptual reasons
b.
Practically-English courts concerned by a lack of
recording system making it difficult for buyers of
land to discover negative easements. Courts
feared recognition of new negative easements
would unreasonably burden transferability and
development of land
c.
Conceptually, courts concerned about a servient
landowner foregoing some use of her land which
involves more invisible and intangible rights
Second phase. Development of Covenants Running With the
Land
a.
b.
Landowners turned to contract law but in the
early part of the 19th century, the law generally
considered contract rights and non-assignable
But there was an exception where parties stood
in privity of estate (traditionally restricted
to lessor and tenant)
Traditional Rule
Three requirements for such a covenant to
bind successors in ownership of the burdened
land.
1. The covenanter demonstrate the
covenanting parties’ intent to bind successors
88
2. The covenant “touch and concern” the land
3. There be privity of estate between the covenanting parties
3.
Covenants Running With the Land in
American Law
a.
To enforce a covenant against a successor at law
(action for monetary damages), American
courts generally require that:
1) The original covenanting parties intended to bind successor
owners to the restriction
2) The restriction “touched and concerned” the land
3) The original covenanting parties stood in “privity of estste”
4) The successor took the land with NOTICE of the restriction
b.
To enforce a covenant against a successor in
equity (specific performance or an injunction),
American courts generally have disgarded the
privity requirement, requiring only that:
1) The original covenanting parties intended to bind successor
owners to the restriction
2) The restriction “touched and concerned” the land
3) The successor took the land with notice of the restriction
c.
i.
Analyzing privity of estate
American Courts have extended privity of
estate
beyond
the
landlord-tenant
relationship
Two Components
Horizontal-focuses on relationship between the
original parties to the covenant
Exists if the original parties to the covenant have either a mutual
interest (simultaneous interest) or successive interests
(succession of interest) in the affected land at the time they
enter into the covenant
Mutual interest exists when each party has some interest in a
given parcel of land
Servient Landowner and Easement holder
89
Landlord/Tenant
Concurrent Owners
Life Estate Holder/Remainder Holder
Succession in interest exists when the parties make the
covenant as a part of the grant of an estate
from one to the other thereby standing in
grantor-grantee relationship
At the time the original parties enter into a covenant was there a
grantor/grantee relationship??
ASK
Is the relationship a grantor/grantee?
Does it affect the land for which the covenant was created?
Does the relationship exist at the time the covenant was
created?
If Yes, then succession in interest is established
Vertical-focuses upon succession to the interests
of the original parties to the covenant-either a transfer
of the burdened parcel, a transfer of the benefited
parcel or both at the some point after the original
covenanter and covenantee enter into the covenant
In most cases, requires that the successor owner succeed to the
entire estate of the predecessor
***Look at the duration of the estate and if the successor
received the same estate then vertical privity exists
iii. What type of privity is required for a burden or a benefit of
a covenant to run with the land? (First Restatement Approach)
First Restatement requires both horizontal and vertical privity
before a covenantee or her successor could enforce the burden
of a covenant against a successor to the covenantor
iv. Common law relaxes requirements for the running of the
benefit of a covenant
Neither horizontal nor vertical privity was required if a successor
owner of the benfitted parcel sought to enforce the covenant
against the original covenantor
90
d.
i.
Analyzing “touch and concern”
If the covenant merely be collateral to the
land and does not touch or concern the
thing demised in any sort, it will not be
enforceable as between successors in
ownership to the original parties to the
covenant
This is not extremely difficult to apply to negative covenants
restricting land use
ii.
“Touch and concern”-the covenant must
relate to the enjoyment, occupation, or use
of the property
iii. Class Notes
Ask two questions
Does the covenant in purpose and effect substantially alter the
legal rights of the landowner in a way that is connected with the
land?
Does the covenant impose a burden on one interest in land
which also increases the value of the different interest in the
same or related land?
If the answer is “yes” to either question then presumably the
covenant will touch and concern the land
e. Difference in Real Covenant and Equitable
Servitude
i.
The traditional remedy for breach of real
covenant is damages
ii.
Equitable servitude is enforced by an
injunction
3.
a.
b.
Restatement Approach
Combines the real covenant and equitable
servitude into one doctrine-the covenant that
runs at law
A coveant running with the law is a servitude
arising when:
i.
The owner of the property to be burdened
intends to create a servitude
91
ii.
He enters into a contract or conveyance to
this effect that satisfies the SOF
iii. The
servitude
is
not
arbitrary,
unconstitutional, unconscionable, or violate
of certain public policies
This standard abandons the requirements of touch and concern
and horizontal privity
4. Common Interest Community
a.
Planned residential development where all
properties are subject to comprehensive private
land use restrictions and which is regulated by a
homeowner’s association
b.
Restatement approach-A servitude is valid unless
it is “illegal or unconstitutional or violates public
policy”
It violates public policy if it:
i.
Is arbitrary, spiteful, or capricious
ii.
Unreasonably
burdens
a
fundamental
constitutional right
iii. Imposes an unreasonable restraint on
alienation
iv. Imposes an unreasonable restraint on trade
or competition
v.
Is unconscionable
c.
Validity of Specific Restrictions
i.
A covenant which barred non-Caucasians
from living on a particular street violated the
Equal Protection Clause of 14th amendment
d.
Property owners can lose the right to enforce a
specific covenant is the specific covenant has
been
abandoned,
thereby
rendering
it
unenforcement
i.
The test to determine abandonment
Requires the party opposing enforcement to prove that existing
“violations are so great as to lead the mind of the average
person to reasonably conclude that the restriction had been
abandoned”
This test is met when the average person upon inspection of a
subdivision and knowing of a certain restriction will readily
92
observe sufficient violations so that he or she will logically infer
that the property owners neither adhere to no enforce the
restriction
In applying the test courts consider the following:
Number, Nature and Severity of the then existing violations, any
prior acts of enforcement of the restriction, and whether it is still
possible to realize a substantial degree the benefits intended
through the covevant
Courts should consider number, nature and severity first and
then go to other factors
e.
Discharge of a Covenant
i.
Burden is on party seeking the
discharge to show that the original
purpose of the restriction has been
materially altered or destroyed due to
changed
conditions,
and
that
a
substantial benefit no longer extends
to the other party by enforcement of
the restriction
**As a general rule, a restrictive covenant may be discharged if
there has been acquiescence in its breach by others, or an
abandonment of the restriction
**Changes in character of a neighborhood may result in the
discharge of a restrictive covenant
****Where the changed or altered conditions in a neighborhood
render the strict adherence to terms of a restrictive covenant
useless to the dominant lots, the court will refrain from enforcing
such restrictions
Rule: "Essential elements of a real covenant: (1) must appear
grantor & grantee intended that the covenant should run with the land;
(2) covenant touches or concerns the land which it runs; (3) privity of
estate between the promisee or party claiming the right to enforce it, and
the the promisor or party who rests under the burden of the covenant."
Defenses to Restrictive Covenants
93
1.
Abandonment
Requires the party opposing enforcement to prove that existing
“violations are so great as to lead the mind of the average
person to reasonably conclude that the restriction had been
abandoned”
The test is met when the average person upon inspection of a
subdivision and knowing of a certain restriction will readily
observe sufficient violations so that he or she will logically infer
that the property owners neither adhere to no enforce the
restriction
In applying the test courts consider the following:
Number, Nature and Severity of the then existing violations, any
prior acts of enforcement of the restriction, and whether it is still
possible to realize a substantial degree the benefits intended
through the covevant
Courts should consider number, nature and severity first and
then go to other factors
2.
Changed Conditions
Burden is on party seeking the discharge to show that the
original purpose of the restriction has been materially altered or
destroyed due to changed conditions, and that a substantial
benefit no longer extends to the other party by enforcement of
the restriction
As a general rule, a restrictive covenant may be discharged if
there has been acquiescence in its breach by others, or an
abandonment of the restriction
Changes in character of a neighborhood may result in the
discharge of a restrictive covenant
Where the changed or altered conditions in a neighborhood
render the strict adherence to terms of a restrictive covenant
useless to the dominant lots, the court will refrain from enforcing
such restrictions
3.
Unreasonableness
94
4.
Relative Hardship
The covenant will not be enforced if the harm/hardship caused
by enforcement to the burdened estate owner will be greater
than the benefit to the owner of the benfited estate
5.
Unclean Hands
Enforcement may be denied if the complaining party breached
the covenant himself
6.
Acquiesence
Servient owner violates covenant and beneficiaries of the
covenant fail to object and complain
7.
Laches
Servient owner waits too long to file a claim
NUISANCE
Nuisance
a. People don't have unlimited power to use land as you please: ex/ Gov't can have zoning
laws. W/out remedy under zoning laws: use Nuisance
b. Public Nuisance-improper interference w/ right common to public: good air, decency
ex/ erica badoo naked recently where Kennedy was shot in Dallas.
c.
d. Private Nuisance-non-trespassory invasion in nature of another's use and enjoyment of
land. Ex/ gas, noise, smoke, particles. Must have the following 3 kinds of interference:
1. Intentional
2. Substantial
3. Unreasonable
a. **mere licensee cannot maintain nuisance action
ii. 3 common elements for private nuisance:
1. D's conduct must cause interference w/ P's use of land
2. Intentional
a. Knows to substantial certainty harm will result or
b. Purposefully acts
3. Substantial
4.
iii. 2 ways to approach unreasonable:
1. Gravity of Harm-D's conduct is unreasonable if causes substantial harm
regardless of utility
2. Restatement-balance harm and utility
a. **Must be a person w/ ordinary sensibilities-Hypersensitive P
does not constitute nuisance. Ex/ ugliness of house is not enough
e. Nuisances can be:
95
i. Permanent-passive and created by durable automated thing. Ex/ Dam backs up
water on P's land. If structure and effects will continue to reasonable certainty
into indefinite future. May recover past, present and future damages
ii. Temporary (Ex/ Boomer case b/c owners could stop operation at any time)active operation is essential to its continuous effect .Allow past and present
damages and injunction.
f. Nuisance depends on context (factual situation). Major class theme.
Rules: NE adopted Restatement 2nd that private nuisance is intentional and unreasonable
invasion of another's use and enjoyment of land and unreasonable is if gravity of harm
outweighs the utility of the actor. Also use following (5) factors for gravity of harm test:
1)Extent of harm involved
2) Character of harm involved
3)Social value law attaches to type of use or enjoyment invaded
4) Suitability of particular use or enjoyment invaded to the character of
locality and
5) Burden on person harmed of avoiding harm
Use following (3) factors for determining utility:
1. Social value law attaches to primary purpose of conduct
2. Suitability of conduct to character of locality
3. Impracticability of preventing or avoiding invasion
d.
Private Nuisance
•
•
e.
•
•
Use of your property in a way that unreasonably
interferes with another’s use
Difficult question is what is unreasonable (the gravity
of the harm outweighs the utility of the actor’s
conduct)
Prah v. Maretti
Prah had solar panels on his home. Later, Maretti began
building a home next door to Prah. Maretti's home would
have blocked the sun so Prah's solar panels wouldn't
work.
o Note that Prah built his home only 10 feet away
from the edge of his property, knowing that a future
next door neighbor might chose to build a house
that could block Prah's sun.
Prah sued Maretti in order to force him to build his home
further away from Prah's property line.
96
•
•
o Prah argued that Maretti's sun-blocking house was a
nuisance.
o Maretti argued that he could do whatever he liked
with his property.
 Maretti agreed to move his home some, but
not enough to satisfy Prah.
 Maretti wanted a view of the lake, and if he
moved it any further he couldn't see the lake.
The Trial Court found for Maretti in summary judgment.
Prah appealed.
o The Trial Court found that since Maretti's house
conformed with zoning laws, there was no nuisance.
The Appellate Court reversed and ordered a trial.
o In the past, courts have refused to consider
blocking sunlight a nuisance. However, this was
mainly due to the sunlight was valued only for
aesthetic enjoyment.
o The Appellate Court weighed the gravity of the
harm against the utility costs. In specific, they
considered:
 Gravity of Harm:
• The extent of the harm involved.
• The character of the harm involved.
• The social value of that the law attaches
to the type of use or enjoyment
invaded.
• The suitability of the particular use or
enjoyment invaded to the character of
the locality.
• The burden on the person harmed of
avoiding the harm.
 Utility of Conduct
• The social value that the law attaches to
the primary purpose of the conduct.
• The suitability of the conduct to the
character of the locality.
• The impracticability of preventing or
avoiding the invasion.
o The Court found that there were questions of fact as
to the gravity of harm vs. the utility costs. These are
questions for a jury to decide.
 Does the encouragement of solar power
outweigh the harm to Maretti in not being
able to see the lake?
97
•
In a dissent, it was argued that nuisance only occurs
when the act is intentional and unreasonable. Also, there
is liability only to those to whom it causes significant
harm, the kind that would be suffered by a normal person
under reasonable circumstances.
SHELLEY V. KRAEMER
ISSUE 1) JUDICIAL ENFORCEMENT IS A STATE ACTION?
2) IF SO, DID IT DEPRIVE EQUAL PROTECTION UNDER THE LAWS?
A.
I
The law of zoning
1.
The validity of zoning
2.
The zoning process: searching for flexibility and fairness
a)
Amendments and conditional uses
Power to Enact Zoning Laws
A) State constitutions grant powers to state government officials. Most state constitutions grant to the
states “police power” to regulate activities that affect the public health, safety, morals, or general
welfare. The only power that counties and cities have are the powers delegated to them by the state
constitution or by legislation. Most state legislatures delegate zoning authority to cities and counties
through an enabling act. In other states, the cities and counties get the power to zone in a home rule
provision in the state constitution.
B) The US Constitution and State Constitutions limit the government’s power to regulate. State
constitutions may offer more protection to individuals, but if they purport to offer less protection than
the federal constitution then the federal constitution will control. Therefore whichever constitution
gives the individual more protection will be the one that controls.
C) Constitutional provisions invoked to void zoning laws:
1) Substantive Due Process Clause
2) Procedural Due Process Clause
3) Takings Clause
4) Equal Protection Clause
5) Free Speech Clause
6) Freedom of Association Clause
7) Freedom of Religion Clause
D) Standard State Zoning Enabling Act
1) The Standard Act makes cities or counties the primary zoning authorities. The zoning authority
develops a comprehensive plan establishing the goals that the zoning regulation should strive to
achieve. They divide the city or county into districts or zones and adopts procedures for enacting,
enforcing, and amending the zoning ordinances.
2) The Standard Act grants local governments the power to enforce the zoning ordinance. The act
offers a system of appeals to an administrative body (board of appeals, board of zoning adjustment,
board of zoning appeals) that allows landowners to petition the board for redress. If the landowner
challenges an official’s (building inspector) refusal to grant a building permit, the landowner can
appeal.
3) The board of appeals has the power to issue a variance. The board also has the power to grant
special exceptions.
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4) Landowners which are dissatisfied with the decision of the board of appeals may appeal the
decision to a court.
II
Cumulative Zoning and Noncumulative Zoning
A) Euclidean Zoning: Zoning by districts is known as Euclidean Zoning. The village/city/county is
divided into districts. Each district was restricted based on three major factors: use, height, and area.
Also included were restrictions on other things such as lot width, setbacks, etc.
B) Cumulative Zoning: The different zones or districts are ranked in a hierarchy. Districts limited to
residential uses are considered “higher” districts or zones. Districts allowing multifamily and business
uses are “lower”. Uses allowed in a higher zone are allowed in lower zones, but no use can be located
in a higher zone than that for which it is listed. The hierarchy applies to height and area restrictions
also. This was used in Euclid.
C) Noncumulative Zoning: Also called Exclusive Zoning. Only authorized activities are allowed in each
district.
III Constitutionality
A) Due Proces Clause:
1) 5th Amendment – No person shall be deprived of life, liberty, or property, without due process of
law.
2) 14th Amendment – Nor shall any state deprive any person of life, liberty, or property without due
process of law.
B) Constitutionality in Euclid:
1) Euclid invoked substantive due process. This addresses whether the federal or state government
can restrict individual rights through the law or action at issue.
2) Under substantive due process
 The law must advance the public health, safety, morals, or general welfare. The law must be
trying to promote a legitimate state interest.
 If the law does not infringe on a constitutionally protected right, then all that is left is for the
means chosen to achieve the legitimate state interest must be rationally related to the legitimate
state interest.
 A statute will be declared unconstitutional only if the provision is “clearly arbitrary and
capricious”, having no relation to the legitimate state interest.
 HOWEVER, if the law infringes upon an individual’s fundamental constitutional right, the state
must then convince the court that the state’s interest outweighs the individual’s fundamental
right. It usually has to show a “compelling state interest”. If the state can’t show this, the law
will be struck down as unconstitutional. If the state’s interest outweighs the individuals
fundamental right, then the statute must be narrowly tailored to achieve the compelling state
interest while infringing as little as possible upon the individual’s constitutionally protected
right.
C) “On its face” and “As applied”
1) Facial validity deals with whether the statute is constitutional in any situation. This is based on
how the statute would operate in most cases.
 In Euclid, the zoning ordinance was challenged on its face. The court held that the ordinance
was constitutional on its face because there was a legitimate state interest and the zoning laws
were rationally related to the legitimate state interest and that no fundamental individual rights
were being violated.
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2) “As Applied” deals with whether the statute, although generally constitutional, is unconstitutional
if it is applied to the specific situation.
 In Nectow v. City of Cambridge, the Court concluded that the same zoning ordinance as in
Euclid, although constitutional on its face, was unconstitutional as applied to the case at hand.
Plaintiff’s land was zoned commercial, but a 100 foot strip was zoned residential. The court
found that there was no practical use for the 100 foot strip and that the 100 foot strip would not
promote the health, safety, welfare, etc of the city. The zoning ordinance failed to promote the
legitimate state interest. A zoning regulation cannot be imposed unless if bears a substantial
relation to the public health, safety, morals, or general welfare.
B.
Eminent domain, regulatory takings, and exaction
1. Eminent Domain­gov forces you to sell your property to it
2. Condemnation­the process by which Eminent Domain is done, the process of taking your land,
they must pay you  more commonly known as a “taking” from the 5th Amendment to the Constitution
“nor shall private property be taken for public use without just compensation” –from the 5th
Amendment, applies to the Federal Government
14th Amendment extends this to the states.
C.
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Kelo v. City of New London, 125 S. Ct. 2655
Facts:
New London was economically depressed
Military base had been closed
New London came up with a development plan around Pfizer
Certain folks oppose it because some of the property would end up in the hands of private parties…so
argued it was not a “public use”
 Snoe argues that this is the kind of thing we expect government to do
Substantive Due Process Constitutional Analysis:
1. Legitimate State Interest?
a. Business development
b. Tourist development
c. Quality of life/beauty
2. Means rationally related?
Issue: Does taking property solely for economic development satisfy the public use requirement?
USSC says legit.
Case history:
1. Washington DC Case­OK to make aesthetics­motivated takings
2. Hawaii Housing Authority v. Midkiff decision­took land from one person and sold to other to diversify
ownership, said if living in a house, OK to buy the land, ends up working through the state buying it and then
selling­LSI­diverse OK, Means­transfer legit means…once the state identifies a legitimate state interest, we will
OK as long as it is rationally­related to the accomplishment of the purpose
3. GM and Detroit—Michigan SC said OK to create a greenbelt by eminent domain
4. Kelo caused a big revolt­
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Reasons­LSIs
Increase taxes, jobs, etc.
D.
C. Takings­more
“nor shall private property be taken for public use, without just compensation”
 Public use interpreted as a “public purpose”…USSC is deferential unless the
interpretation is absolutely ridiculous
 once you have a public purpose in mind, the government can use any number of
methods as long as they are rationally related to the legitimate state interest
Has the government “gone too far”?
condemnation]
 most done on an ad hoc basis, we balance
[regulatory takings, called inverse
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