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ACQUISITION OF PROPERTY
I. Discovery
1. Ownership does not belong to the person who occupy there for a long time,
but it belongs to the person who discovers it.
II. Capture
1. Capture or kill gives ownership and possession of wild animals
2. Custom matters (considers economic social utility)
3. Constructive property interest gives possession and ownership rights to wild
animals
III. Find
1. The finder has superior property interest over all except the true owner and
the prior possessor
2. A man possesses everything which is attached to or under his land; but not an
unattached thing.
3. When a property is mislaid instead of lost, then the property belongs to the
owner of the real property
IV. Adverse Possession
1. Entry that is actual and exclusive (actually physically there)
2. Open and notorious (gives notice to the true owner)
3. Continuous for the statutory period
4. Adverse and under a claim of right (hostile possession)
(i) State of mind is irrelevant (most courts follow this)
(ii) Good faith claim
(iii) Aggressive trespasser
V. Gift
1. Intention to give
2. Delivery
(i) Actual delivery
(ii) Constructive delivery
(iii) Symbolic delivery
3. Acceptance
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SYSTEM OF ESTATES
I. Possessory Estates
1. Fee Simple Absolute
(i) Def: yours forever without limitation to time (“and his heirs”)
(ii) Inheritance of fee simple: Issue -> Collaterals -> Escheat
(iii) unless it is very clear the court should interpret it as fee simple absolute
2. Life Estate
(i) Def: possessory right for life (no ownership; “for life”)
(ii) Can sell property under court of equity — but considers “economic
waste” & “interest of all parties in the property”
3. Defeasible Estate
(i) Def: an estate terminates, prior to its natural end point, upon the
occurrence of some specified event
(ii) If specified use clause is made impossible to satisfy, such performance is
excused (Eminent Domain)
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LEASEHOLDS
I. Leasehold Estate
1. Term of Years
(i) Def: estate lasts for some fixed period of time
(no notice of termination needed)
2. Periodic Tenancy
(i) Def: a lease for a period of fixed duration that continues for succeeding
periods until either landlord or tenant gives notice of termination
(month to month/ year to year)
3. Tenancy at Will
(i) Def: tenancy of no fixed period that endures so long as both landlord and
tenant desire
(ii) Determinable life tenancy is possible if the lease expressly and
unambiguously grants to the tenant alone the right to terminate, and
does not reserve to the landlord a similar right.
II. Delivery of Possession
1. English: landlord has the duty to evict the old tenant and put the new tenant
into the house (Legal & Actual possession required — Actual delivery)
2. American: Recognizes the lessee’s legal right to possession, but implies no
such duty upon the lessor as abasing wrongdoers
(Legal possession only — Legal delivery)
III. Subleases and Assignments
1. Sublease v. Assignment
(i) CL: If it is transfer the lessee’s estate for the entire remainder of his term
it is an assignment, if it is less then the entire term then it is a sublease
(ii) Modern: Intention to give the entire remainder is assignment, intention
to reserve a right to re-entry is sublease
2. Consent of Assignment
(i) Majority: where a lease contains an approval clause, the lessor may
arbitrarily refuse to approve a proposed assignee
(ii) Minority: Where a leases provides for assignment only with the prior
consent of the lessor, such consent may be withheld only where the
lessor has a commercially reasonable objection
3. Privity of Estate & Contract
(i) If estate is assigned then privity of estate is transferred but privity of
contract remains to lessee; if estate is subleased privity of estate and
contract remains to lessee.
IV. Tenant who Defaults
1. Tenant in possession
(i) CL: self help repossession is permitted if:
(a) Landlord is legally entitled to possession, such as where a tenant
holds ever after the lease terms or where a tenant breaches a lease
continuing a reentry clause; and
(b) Landlord’s means of reentry are peaceable.
(ii) Modern: the only lawful means to dispossess a tenant who has not
abandoned nor voluntarily surrendered but who claims possession
adversely is by resort to judicial process.
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2. Tenant who abandons possession
(i) Contractual P: if you fail to mitigate then the damages you get will be
less than expectation
(ii) Property P: tenant is responsible for paying the lease for the entire
time
V. Duties Rigts & Remedies
1. Landlord duties
(i) Quiet Enjoyment and Constructive Eviction
(ii) Implied Warranty of Habitability
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LAND USE CONTROLS
I. Judicial Land Use Controls: Nuisance
1. Private Nuisance
(i) Intentional
(ii) Unreasonable
(1) Threshold Test
(2) Balancing Test
2. Public Nuisance
(i) Effects a large group of people
(ii) Unreasonable
(1) whether the conduct in question significantly interferes with public
health, safety, peace, comfort, or convenience
(2) whether the conduct is proscribed by statute or ordinance
(3) whether the conduct is of a continuing nature or has produced a
permanent or long-lasting effect
II. Private Land Use Controls: Servitudes
1. Easements
A. Types of Easements
(i) Expressed Easements
(ii) Implied Easements
(1) Easement by prescription
a. Entry that is actual and exclusive (actually physically there)
b. Open and notorious (gives notice to true owner)
c. Continuous for the statutory period
d. Adverse and under a claim of right (hostile possession)
(2) Easement by prior existing use
a. Common owner
b. An apparent, existing, and continuing use of one parcel at the
time of severance
c. The necessity existed at the time of severance
d. Notice
(3) Easement by estoppel
a. Permission to use it as a right of way
b. Reliance on the license to one’s detriment
(4) Easement by necessity
a. Common owner
b. The interest in the land of another is a necessity, not a mere
convenience
c. Strict necessity existed at the time of severance
(iii) Easement Appurtenant
(iv) Easement in Gross
(v) Affirmative Easements
(vi) Negative Easements
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B. Assignability of Easements
(i) Assignability — an easement is assignable if:
(1) the parties intended that the easement could be assignable
(2) the easement is used for commercial purposes
(ii) Divisibility — an easement is divisible but differs jurisdictionally
(1) One stock rule: division of easements are allowed when the
parties to the easement agree on the division
(2) Division is allowed if
a. It is not contrary to the intent of the original parties and
b. The division does not place an unreasonable burden on the
servant estate
C. Scope of Easements
(i) Misuse
* Any extension of the easement to other parcels is a misuse of the
easement
(ii) Remedies for Misuse
(1) If there is any misuse in the easement then it is an automatic
injunction.
(2) Even if there is a misuse in the easement, we still need to balance
the equities and consider the situation to determine if an
injunction or damage is appropriate.
D. Termination of Easements
(i) Termination by Abandonment — abandonment occurs when:
(1) there is nonuse; and
(2) There are acts by the owner of the dominant tenement
conclusively and unequivocally manifesting either a present
intent to relinquish the easement OR a purpose inconsistent with
its future existence.
E. Negative Easements
(i) Definition
(ii) Types of Negative Easements
(1) Blocking your window
(2) Interfering with air flowing to your land in defined channel
(3) Removing the support of your building (usually by excavating
or removing a supporting wall, and
(4) Interfering with the flow of water in an artificial stream
2. Covenants
A. Equitable Servitude
(i) Elements
(1) Intent to restrict and to bind future successive parties
(2) Promise must touch and concern
(3) Notice
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B. Real Covenants
(i) Creation of Covenants
(1) Must be in writing
(2) Intent to restrict and to bind future successive parties
(3) Promise must touch and concern the land
(4) Horizontal privity
a. Burden to run
i. Majority (1st): horizontal privity is required
ii. Minority (3rd): horizontal privity is not required
b. Benefit to run
i. Horizontal privity is not required
(5) Vertical privity
a. Burden to run
i. Must be the same estate
b. Benefit to run
i. Can be the same or lesser estate
(6) Notice
(ii) Validity & Enforcement of Covenants
(1) Touch and Concern
a. English Rule: affirmative acts do not run with the land and
thus does not touch and concern
b. Modern Rule: personal affirmative covenants can touch and
concern as long as it affects the legal relations
(2) Vertical Privity
a. Traditional Rule: a covenant is enforceable only if the parties
succeed the original estate
b. Modern Rule: substantive privity is enough; no need for
technical privity
(iii) Termination of Covenants
(1) Change in Condition
a. Rule 1: as long as the original purpose of the covenant can
still be accomplished and substantial benefit remains in the
restricted area the covenant stands
b. Rule 2: when there are many changes within and outside the
subdivision, and there is no substantial benefit to the
restriction then the covenant could be terminated
(iv) Common Interest Communities
(1) Condominium
a. Restrictions by Association: use reasonable test
b. Restrictions by the master deed: presumption of validity
unless restriction is arbitrary, or burden outweigh benefit, or
violates fundamental public policy
(2) Cooperatives
a. Rule 1: review of cooperatives is business judgement rule
b. Business judgment rule: give deference to cooperative boards
unless
i. It is outside the scope of its authority
ii. Did not legitimately further the corporate purpose
iii. In bad faith
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III. Legislative Land Use Controls: Zoning
1. Zoning
A. Beginning of Zoning
(i) Validity of Zoning
* Zoning regulations are derived from the police power; therefore,
unless the provisions are clearly arbitrary and unreasonable,
having no substantial relation to the public health, safety, morals,
or general welfare, the zoning regulations are constitutional
IV. Eminent Domain & Taking
1. Eminent Domain
A. Public Use
B. Nonconforming Use of Zoning
(i) Rule: a lawful nonconforming use cannot be abrogated unless it is a
nuisance, it is abandoned, or extinguished by eminent domain
C. Achieving Flexibility in Zoning
(i) Variances
(1) Standard for variances
a. Undue hardship of the applicant
b. Grant of variance does not substantially impinge upon public
good and the intent and purpose of the zoning plan
(ii) Special Exception
(1) Special Exception is granted if:
a. The other requirements of the ordinance were met
b. The use will not adversely affect health, safety, or general
welfare of the public
c. Use will defeat the purpose of the ordinance or the
comprehensive plan of the town
d. The use will not devaluate or alter the essential characteristic
of the surrounding property
(iii) Zoning Amendments and Spot Zoning
(1) Rule: a zoning or rezoning classification must be upheld unless
classification is unsupported by any rational basis related to
public health, safety, moral or general welfare
D. Expanding the Aims of Zoning
(i) Aesthetic Regulation
(1) Rules
a. The police power allows zoning regulations regarding
aesthetic matters for the general welfare
b. If there is an aesthetic regulation it must be drafted to give
clear guidance to all parties concerned
c. Governments regulation on physical characteristic of signs are
unconstitutional if
i. In effect it restricts too much speech on the basis of the
message
ii. It simply prohibits too much protected speech
d. Individualized assessments that impose substantial burden
upon the exercise of religion are not valid.
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2. Regulatory Taking
A. Categorical Rule
(i) Permanent Physical Occupation Test: a permanent physical
occupation authorized by the government is a taking per se.
(ii) Nuisance Control Test: if the government regulates for the purpose
of nuisance control, then it is not a taking even when there is a
significant taking
(iii) Economic Viable Use Test: a regulation that completely deprives
private property of all its economic viable use constitutes a taking
B. Balancing Rule
(i) Diminution of Value Test: when the regulation goes too far and it is
not a nuisance control measure, then it is a taking
(ii) Penn Central Test: when discerning if there is a taking or not the
court needs to consider the:
(1) Economic impact
(2) reasonable investment-backed expectations
(3) Character of the government action
(iii) Temporal Taking: when considering the economic impact of a
regulation we need to consider the temporal taking by careful
examination and weighing of all relevant
C. Judicial Takings
(i) Definition: This occurs when the judicial branch affirms the decision
of the government’s wrongful taking of a private property.
(ii) Standard: common law —- if the common law allows governmental
taking then no judicial taking if not then judicial taking
D. Exactions
(i) Condition: in order for an exaction to be valid:
(1) There needs to be an essential nexus between the condition and
state interest
(2) The exaction needs to be roughly proportional to the state
interest
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