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I. Introduction
1. Intellectual Property
a. the Constitution-it gives Congress power to pass laws to promote science by giving authors
exclusive rights to their writing and to pass laws to promote the useful arts by giving
inventors exclusive rights to their discoveries-the former being copyright and latter patents
2. Copyrights
a. the protection arises automatically with creation of the work it does not require registration or
a government grant
b. 17 U.S.C. 102 (from the Copyright Act) Copyright protection subsists, in accordance with
this title, in: elements
1. original
2. works of authorship
3. fixed in
4. any tangible medium of expression, now known or later developed,
5. from which they can be perceived, reproduced, or otherwise communicated, either
directly or with the aid of a machine or device
c. In no case does copyright protection for an original work of authorship extend to any idea,
procedure, process, system, method of operation, concept, principle, or discovery, regardless
of the form in which it is described, explained, illustrated or embodied in such work.
1. this is so ideas can be expanded on- if ideas were copyrighted no one else could
further on the science or art
d. Hasn’t been produced by anyone else before and is creative
e. Exists in real form
f. Some form of something paper, CD, accessible
g. Able to take medium and perceive, reproduce, or communicate
3. Trademarks
a. Elements
1. Word, Name, symbol, or device or any combination thereof
2. used by a person or intend to use it and apply to register
3. identify and distinguish goods from those manufactured or sold by other
4. indicates source of the goods
b. They arise automatically from use, they do not require any government action or registration
to exist
c. The Lanham Act- Secondary meaning is acquired when in the minds of the public, the
primary significance of a product feature…is to identify the source of the product rather that
the product itself
4. Trade Dress
a. The overall appearance(trade dress) or “whole image” of the packaging of a product or even
a business can also support a claim- broader than a trademark
b. Section 1125-contains trade dress protection language-way you package your business is
valuable- if someone has a similar that leads to confusion about product’s source they can be
held liable
5. Marks
a. Section 2 of Lanham Act provides that a descriptive mark that otherwise could not be
registered may be if it “has become distinctive of the applicant’s goods in commerce” aka
secondary meaning
b. -an identifying mark is distinctive and capable of being protected if it either
1. is inherently distinctive or
2. has acquired distinctiveness through secondary meaning
c. five categories
1. fanciful-not otherwise a word –Exxon
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2. arbitrary- no connection to product-Apple
3. suggestive-suggests the product’s identity-Coppertone
-first three are inherently distinctive- no question on where the goods come from,
automatically distinguished so get protection
4. descriptive- describes it-Nice ‘N Soft- must have secondary meaning
5. generic- can not trademark –beer, aspirin
-if popularity reaches this level lose trademarkability- so companies have to be
careful with their name- Band Aid (brand name but people ask for a band aidhappened to Aspirin)
6. Patent
a. Copyright and trademark are not verbs – no action is necessary beyond creation or use
b. Registering is an activity
c. Patent is both verb and noun
II. Principles of Personal Property Law
1. Landowner have rights to discourage trespassing, own land own everything on the land, and under
presumption that if the true owner remembers and comes back the landowner will have the property
2. Finders have rights because they have possession, would have stayed in the place if not for the
finder, and precedent Armory v Delamirie
3. Lost Property
a. inadvertently (by mistake or carelessness) dispossessed of- possession awarded to finder
b. -Priority of Interests- 1. True Owner 2. Finder 3. Landowner 4. Rest of World
4. Mislaid Property
a. intentionally placed, but forgotten-(intent to place there but not intent to relinquish title) possession awarded to the landowner
b. -Priority of Interests- 1. True Owner 2. Landowner 3. Finder 4. Rest of World
5. Abandoned Property
a. original owner has intentionally relinquished title- possession to whoever takes first
possession – ex: garbage on street, donations to charity
b. - Priority of Interests- 1. Finder 2. Landowner 3. Rest of World
c. involuntarily lost with no chance of recovering by true owner- ex: refugee leaving home,
boat sinking throw stuff over to keep afloat
d. - Priority of Interests- 1. True Owner 2. Finder 3. Landowner 4. Rest of World
6. Treasure Trove
a. recognized by some jurisdictions- buried or hidden treasure- valuables(precious metals,
currency, or similar valuables)- carries with it thought of antiquity- intentionally concealed
in the distant past, by someone who intended to return for it but did not, probably dead by
now- finder gets possession
b. -Priority of Interests- 1. True Owner/Heirs 2. Finder 3. Landowner 4. Rest of World
7. any ambiguity as a matter of public policy should be resolves in favor of the presumption that the
prop was lost
8. Bailment
a. the relationship between the true owner and the possessor- the true owner the “bailor” and
the possessor “bailee” for the purposes of a bailment
b. Under common law a bailee for hire has a duty to exercise “reasonable care” in safekeeping
the bailed property and is liable for “negligence” that results in loss or damage
c. “rebuttable presumption” of negligence on the part of the bailee in certain circumstances- the
“presumption” consists of a rule of liability that arises automatically upon proof of elements
1. An express or implied agreement to create a bailment
2. A delivery of the property in good condition
3. The bailee’s acceptance of the property, and
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4. The bailee’s failure to return the property or the bailee’s redelivery of the property in
a damaged condition
d. “gratuitous” bailment- keeping bailed articles only for the benefit of the bailor nothing for
bailee- the liability is less than that of a bailee for hire
e. bailee for hire-bailee gets something out of it; some benefit- gratuitous bailment requires
only “slight diligence by the bailee” for the standard of care- where bailee for hire requires
reasonable care
9. Fugacious Things
a. consider the creation of rights in yet-unowned property such as home run baseballs, wild
animals, and oil and gas- they all have an important characteristic in common they are all
fugacious- intentional abandoned property that hasn’t been claimed yet
10. Rule of Capture
a. Advantages
1. it provided a ‘bright-line’ rule- it was more certain than a rule that depended on
whether the first hunter might have succeeded
2. the rule of capture also rewarded success- it therefore seemed to reflect a kind of
distributive justice(or fairness) as well as incentives to efficiency.
b. “Partial Capture”- does all that it is possible to do to make the animal its own, that would
seem sufficient- reasoned that this modification was necessary to the viability of the whaling
industry
c. Where an actor
1. undertakes significant but incomplete steps to achieve possession of a piece of
abandoned personal property and
2. the effort is interrupted by the unlawful acts of others, the actor has a legally
cognizable pre-possessory interest in the property
d. Equitable Relief-“provides an equitable way to resolve competing claims which are equally
strong”- their legal claims are of equal quality and they are equally entitled (Popov v
Hayashi)
11. Transfers of Personal Property
a. General Rule # 1 of Transfers of Personal Prop- Purchaser gets all title the seller had or had
power to transfer- protects the true owner
b. Void Title- When seller has no legitimate title to the prop
c. General Rule #2= Gen rule #1 + Void Title ; Once Void, Always Void
d. Exception of the General Rules: Voidable Title- Seller can pass better title to buyer if certain
conditions met
1. If conditions not met, title is void and once void always void rules applies
2. If conditions are met title can become good title and true owner loses as against buyer
e. UCC 2-403 General Rule Voidable Title Exception
1. “Entrusting” must be done by true owner
2. “to a merchant who deals in goods of that kind” That makes title voidable (true
owner’s be careful to give possession)
3. sale to “good faith purchaser for value” Bona fide Purchaser- that converts voidable
title to good title (protects buyer)
12. Entrusting
a. includes any delivery and/or
b. any acquiescence(agreement without protest) in retention of possession
1. regardless of any condition expressed between the parties to the delivery or
acquiescence and (to protect buyer)
2. regardless of whether the procurement of the entrusting or the possessor’s disposition
of the goods have been such as to be larcenous under the criminal law
13. 5 basic common law remedies relating to personal property
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a. replevin- claim to get property back- recovery of the property
b. trespass- intentionally damaged property- direct injury to chattel P has right of possessions
and D willfully interferes with right
c. trespass on the case- damaged negligently- indirect injury to chattel D negligently (not
intentionally interferes with right
d. conversion- wrongful exercise of control of another’s property
1. prop is broad and includes “every intangible benefit and prerogative susceptible of
possession or disposition”
2. Can have right over intangible property if your ownership is evidenced by a
document
e. trespass to chattels- interference with use of chattel
1. “Conduct that does not amount to a substantial interference with possession, but
which consists of intermeddling with or use of another’s personal prop, is sufficient to
establish a COA for trespass to chattels” Ebay v bidder’s edge
2. trespass to chattels requires the element of injury to the chattel or to the P’s rights in it
14. Property Rights in Human Persona
a. Sec 3344
1. knowingly uses another’s name, voice, signature, photograph, or likeness, in any
manner,
2. for purposes of advertising or selling
3. without such person’s prior consent
4. shall be liable for any damages sustained by the person or persons injured as a result
thereof
b. Elements for Right of Publicity
1. the D use of the P identity
2. the appropriation of P’s name or likeness to D advantage, commercially or otherwise,
3. lack of consent and
4. resulting injury
c. Elements for Lanham Act Sec 43
1. Likelihood of confusion
III. Principles of Property Ownership
1. Creation of Property Interest by Gift, Purchase, and Adverse Possession
a. Gift requires three formal elements- Not just for land
1. donative intent – intend at time to part with his title to and power over the prop and
bestow on donee complete and irrevocable title
2. delivery, and – of subject matter of gift-part with all present and future dominion
3. acceptance by donee
b. Will- the person who received real prop under a will is called a “devisee” and it is said that
the decedent has “devised” the prop which is called a “devise” to the recipient- (a gift of
personal prop is called a “bequest”)
c. a decedent who dies “intestate” dies without a will- if a person dies without a will the
recipients take the prop by “descent” under state inheritance statutes
d. gift cassa mortus- based on reasonable fear of death- if reasonable expectation of death
doesn’t come through may be able to get gift back
e. Full Title->Sale ->splits into Legal Title and Equitable Title-> Closing -> New Owner Full
Title
f. Legal Title- Bare Title held by owner until closing
g. Equitable Title- Beneficial ownership held by purchaser until closing [Trustee for each otherholding prop for benefit of buyer- holding money for benefit for seller]
h. Adverse Possesion-elements
1. Actual and Exclusive Possession of the real estate
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2. Possession is Hostile (without owner’s permission)
3. Open and Notorious- it should be open to notify record owner of the danger of losing
title- classic ex fence
4. Continuous for the Limitations Period- defined by the state
i. Policy behind- want land to be used productively so if you don’t care about someone using
your land we’re going to let them have it to use- owners don’t allow trespassers
j. The Totman ct holds that a “close” familial relationship between the party claiming adverse
possession and the title holder is merely one fact to consider in determining whether use was
permissive or hostile- many others hold that a family relationship creates a presumption of
permissive use
k. Successive and continuous occupancies of different possessors none of whom indiv
adversely possessed for the required period of time can be “tacked” together
2. Concurrent (Multiple) Ownership
a. Tenants in common- “To grantees and their heirs” characteristics and rights
1. Each owner undivided interest in fee
2. Each can enter onto and avoid exclusion from land
3. Each can use the land (but account to others)
4. Each cannot commit waste
5. Each can sell- buyer gets what seller had (ten in common)
6. When one dies, heirs get decedent’s interest as Ten in common
b. law presumes this in multiple tenants situations unless otherwise stated
c. useful tool to convey something that is hard to divide to several people who can be expected
to cooperate fully with one another
d. if there is no agreement about sale or division the only method is to file a suit to partition the
prop
e. patents upon inventions can be jointly owned – unless agree otherwise each joint owner “may
make, use, offer to sell, or sell the patented invention … without the consent of and without
accounting to the other owners”
f. Joint Tenancy with right of Survivorship- “to grantees as joint tenants with right of
survivorship [and not as tenants in common]”-characteristics and rights
1. each owns undivided interest in fee
2. each can enter onto and avoid exclusion from land
3. each can use the land[but must account to other]
4. each cannot commit waste
5. if one sells, destroys the joint tenancy and converts to tenancy in common [so buyer
gets interest of seller as tenants in common]
6. when one dies, all goes to survivor [decedent’s heirs get nothing]
g. Four unities must have all- break one and the joint tenancy is destroyed and becomes a
tenancy in common
1. Time (must obtain at same time)
2. Title (obtain through same title document)
3. Interest (have equal interest 50/50)
4. Possession (have same right to possession)
3. Forms of Deed
a. general warranty deed- any defect in title caused by anyone; grantor has to defend it
b. special/limited warranty- grantor will protect if he made the defect and will defend - features
a narrower warranty
c. quitclaim – no promises to protect in defect in title at all- contains no warranty at all- does
not convey prop only right, title, interest of the grantor in the prop- if grantor owns no
interest the quitclaim conveys none
a. release- used to transfer back to the fee owner a subsidiary interest
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d. conveyance without warranty- used instead of a quitclaim in situations in which grantor
wants to create a claim of title in the grantee but in which the grantor cannot safely warrant
the title
Tenants by the entirety
a. “to grantees as tenants by the entirety” -Characteristics
1. like a joint tenancy because of right of survivorship
2. each can use
3. each can encumber
4. but only between husband and wife
5. nonseverable except by divorce- converts to ten in common
6. been abolished in many states
Security Interests
a. A security interest is a right to look to identifiable prop of the debtor as a means for
repayment of a debt- invisible piece of the prop- as a prop interest the security interest
attaches to the prop and follows it even after it changes ownership
b. security interest may be called a mortgage(requires judicial foreclosure), lien, a deed of
trust(can be foreclosed by a private sale conducted by the security interest holder without any
court proceedings), or other names- some can be used interchangeably while other connote
different kinds of rights
Marital Property
a. Common Law Approach
1. 40 states- most states marital prop systems originated in common law some follow
comm. prop system
2. common law states fall into three basic categories in differing the marital prop that is
subject to equitable distributiona. some include all prop whenever acquired,
b. only prop acquired during marriage,
c. only prop acquired from income earned during marriage(close to comm. prop)
3. marital prop is then divided by “equitable division” statutes which empowered
divorce courts to divide equitably (resembles comm. system conceptually) what is fair
in circumstances
b. Community Property Approach
1. presumption that everything is marital must prove to be separate
2. state law controls what can be considered separate
3. “commingled” so that separate prop cannot be identified and segregated from comm.
prop it is all comm.
4. Traced- spouse who claims it can show that it has retained its separate character by
showing where it came from and showing that it has remained intact
5. Reimbursement- comm. prop used to enhance the value of a separate asset- the nonowning spouse may have a right to have the comm. repaid the funds or compensated
for the effort
6. marital prop is a 50/50 division
c. Valuation of Prop
1. almost all states hold that earning capacity is not marital prop subject to divisionsome allow reimbursement- but take into account when dividing comm. prop or in
equitable distribution
2. some states recognize a right of one spouse or the other to the custodial parent of a
minor to continue to reside in the marital homestead for a period such as the time of
minority in the event of the death or divorce of the other spouse
Trusts
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a. Trustor/ Settlor- Trustee (Legal Title)- Beneficiary (Equitable Title) “To Trustee in trust, for
the use and benefit of Beneficiary”
1. a form of divided ownership in which one person, the trustee, nominally holds “legal”
title to prop, but the trustee has the duty to manage the prop for the benefit of another
person, the beneficiary, who is said to have the “equitable” title
2. person setting up trust- trustor or settler of the trust- trustee owe very serious
“fiduciary duties” to the beneficiary which limit the trustee’s power over the prop
3. trust requires distinct and identified settler, trustee, and beneficiary, and clearly
identified trust prop- must have a res(thing)
4. Duties of a trustee are among the highest and most unforgiving in the law- trustee
owes beneficiary
a. Duty of loyalty-must act consistently in the interest of the beneficiary, not
preferring the trustee’s own interests or that of another person
b. Duty to avoid self-dealing- prohibited from making transactions between the
trust and his or her own prop
c. Duty of reasonable and prudent investment- restricted to relatively
conservative investments under common law
d. Duty to protect and preserve the trust prop(res)- normal deterioration
appropriate
e. Duty to avoid commingling trust prop- keep separate from others’ prop
f. Duty to account to the beneficiary
5. surcharge- a concept that should make trustees oblige- the trust instrument can
modify the fiduciary duties of the trustee or provide for indemnification but there are
limits
6. others have fiduciary duties: an executor of an estate has fiduciary duties and an
officer or director to a corp. and an attorn to a client
7. Trusts are often used for children, to allow an adult to manage the trust prop since
often ownership by a minor can require complex court arrangements- or in wills or
estate planning they can provide flexibility in allowing the trustee to provide support
to different beneficiaries according to their needs, to accumulate or distribute income,
and to use capital- also used to pool investments of many people on a business
arrangements
b. Duty to sell v Duty to retain – when there is a conflict of interest you can never have a duty
to sell, trustee with no conflict of interest selling for benefit of trust duty to sell – to protect
beneficiary
8. Landlord and Tenant Relationship- Tenancy Types
a. There are four different kinds of leasehold estates
1. The Estate for Years (or Fixed Term Tenancy)- basic common law non-freehold
estate- tenancy of a definite length
2. The Periodic Tenancy (A Renewable Estate)- extends for successive specified periods
unless notice of termination is given- termination date is indefinite- Ex: Month to
Month
3. Tenancies at Will- terminable at the pleasure of either party and has no fixed
termination- obtained possessory estate is terminated
4. Tenancies at Sufferance- resembles at will but no lawful results from rightful
obtaining of possession followed by wrongful retention after estate has been
terminated
5. Statutory Tenancies- tenancies created by statutory protections regulate the
circumstances of notice- limit landlord’s right to terminate either a fixed term or
periodic lease
6. Trespassers- occupiers of land- may treat a holdover as one
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b. Common law viewed the lease as a “conveyance” of an interest in land-held a non-freehold
estate
c. In evolving now contract and conveyance
d. Ejectment- a remedy to recover possession from a stranger who ousted the tenant
9. Tenant transfers fit 2 kinds- assignments and subleases
a. Assignment transfers the lessee’s entire interest in the prop
b. Sublease transfers only a portion of that interest- retain right to reentry at some point during
the unexpired term of the lease
c. when limited, right to reenter only upon default, is assignment
10. Tenant When the Landlord Transfers the Underlying Fee
a. “First in time is first in right” - an interest has priority over (is “senior to”) later created
(“junior”) interests
1. “Priority”= interest must be recognized and honored (junior can’t just wipe out a
senior)
b. Priority of security interests is important in bankruptcy proceedings- determines who gets
paid from the debtor’s limited estate
c. A tenant’s mortgage is Junior to the landowner’s mortgage
d. If the landowner defaults and if either of the mortgages is foreclosed the common law rule is
that the tenant’s interest in the lease terminates
e. Subordination clause- the lease will be junior to a later acquired security interest against the
prop- subordinated the earlier lease to the mortgage even though the mortgage arises laterLandlord wants easier to get mortgage, sell
1. refers to the act of lowering the rank of a right or claim
2. Lender is not required to treat the lease as terminated on a foreclosure
3. Can create a new lease explicitly or implicitly
f. Attornment – the act of accounting (pay rent) to a new person
1. will require that a tenant pay rent to a new landlord that has obtained the underlying
interest from the former landlord
g. Non-Disturbance- Landlord agrees to recognize tenant’s rights to remain in leasehold
undisturbed
h. Subordination and nondisturbance clauses- by which the landlord upon electing to collect
rent must subordinate its interest to the lease and explicitly recognize the tenant’s right to
remain in the leasehold undisturbed
i. Combo of all 3 SNDA clause is a part of virtually every comm. lease
j. Landlord usually is party which wants an attornment clause- allows them in seeking
financing to point out to future lender that in default and foreclosure the lease would not be
terminated and lender can have income still- tenant should insist on subordination and
nondisturbance clause
11. Landlord Duty to Deliver Possession
a. Under American rule- the landlord merely covenants that possession will not be withheld by
himself or by one having paramount title
1. burden on new tenant to seek damages against the holdover
2. split in title lease situation landlord vs tenant rights
b. 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
1. if holdover tenant landlord has breached
c. Possible that the English rule requiring the landlord to deliver possession is now the
majority- many juris haven’t established
12. Tenant Obligations
a. Might go dark because
1. business may be unprofitable
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2. tenant found a better place to relocate
3. may have decided that the declining image of the shopping center as a whole is
disadvantageous
b. landlord has motivation beyond rent
1. boarded windows are unattractive
2. make center look instable
3. less business for other stores
4. deterioration
5. vandalism
6. depreciation
c. Continuous Operation Clause- would require tenant to conduct business throughout lease
term
d. desertion or abandonment clause may require tenant only to occupy the premises but not to
engage in continuous operations
e. Use Clause- limits what tenant can put on prop- usually to restrict proper uses – avoid
competition with other tenants
f. breach of contract usually remedy is damages
13. Premises Quality
a. Common Law: caveat emptor [buyer beware] (unless misrepresentation) should know you
will be able to use for your purpose
b. Constructive eviction- lease substantially impaired by wrongful act of the landlord
c. Modern take is that rent promise and landlord’s promise about premises conditions depend
on each other not independent
d. Dependent Covenants/ Restatement Rule
1. Landlord fails to perform within reasonable time
2. After notice
3. promise
4. that was a significant/substantial inducement to enter lease
e. modern mutually dependent covenant rule is that rent and other covenants are mutually
dependent and rent can be offset against damages from the landlord’s breaches
14. Restoration at the Conclusion of the Tenancy
a. Duty to Restore
1. Silent on point- No Duty
2. Maintain- No Duty
3. Return in as good as a condition- Duty
b. Waste- at common law was a concept that required the tenant to abstain from conduct
beyond ordinary use that was injurious to the landlord’s reversionary interests
c. Permissive or involuntary waste –failure to prevent damage, permit or let it deteriorate
d. Voluntary waste- consisting of affirmative damage to the premises, intentional acts damaging
prop
e. An alteration is not waste unless it affected a vital and substantial portion of the premises as
to change its characteristic appearance the fundamental purpose of the erection, or the uses
contemplated
f. Fixtures-Items affixed/attached to the realty and become prop of the landlord
g. Trade Fixtures- can be removed as long as no injury to prop
15. Premises Liability
a. common law generally imposes no liability on landlords for personal injury or death caused
by premises defects- unless landlord takes steps
b. A commercial landlord must exercise reasonable care to protect tenants and their employees
from foreseeable criminal conduct of a third person occurring in common areas within the
landlord’s control
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16. Termination and Renewal of Lease
a. in order to exercise an option to renew a lease the tenant must comply exactly with the terms
of the option
b. Fixed term tenancy no notice is required for termination
c. Periodic tenancy requires notice of termination equal to period
d. Lease at will notice of termination
e. Abandonment -does not terminate the lease-unilateral leaving of prop- landlord has options
to invoke termination as remedy or seek damages
f. Surrender does terminate the lease- early ending of the leasehold by mutual agreement
g. In the absence of a clause in the lease providing for termination upon destruction, it does not
terminate the lease at common law
h. Many states have enacted statues that excuse tenant from rent in this event – Uniform
Residential Landlord and Tenant Act- termination if substantially impaired
17. Holdovers
a. Common law rule that a holdover becomes a periodic tenant if the landlord accepts the
holdover or tenant at sufferance if they don’t
b. periodic term being same as one just completed
c. that the voluntary action of the tenant is such as to disclose the right of the landlord to
assume an intention on the tenant’s part to create a secondary tenancy or
d. that the action of the tenant is such that the court will as a matter of law hold the tenant
liable for a second lease upon the principal of quasi contract that justice may prevail
18. Rent Clauses
a. fixed or “gross” -Simplest kind of rent fixed monthly rent –not only way to describe tenant’s
payments – tenant pays rent, utilities [Advantage known cost]- landlord pays taxes,
insurance, maintenance (making net amount =rent-TIM)[Advantage Gets net of rent- TIM
control get more net]
b. Triple net lease- landlord received a net amount[Advantage avoid TIM and risk re TIM],
with the tenant being responsible for taxes, insurance, and maintenance(TIM) and small
rent[Advantage control TIM, save $]
1. different courts have characterized this in many ways- basically a bare walls lease
with the tenant responsible for taxes, insurance and maintenance but precise terms
depend on the lease
c. Escalators, fixed and Variable- begin with a fixed, gross rental, but to provided for the rent to
increase or escalate in later years
d. Escalator clause- tenant advantage could get longer lease, landlord can increase rent without
losing tenant
e. May depend on indexes tied to the economy or the rental market
f. Percentage rentals- will depend on tenant’s gross income-cost to tenant % of gross revenue
advantage pay less if business poor- landlord cost TIM advantage make more if business is
good
g. Combination of several different rent provisions is not unusual
h. Anti kick back statute
i. Fair market value-price that would be paid between a willing seller and a willing buyer with
neither under any unusual compulsion to buy or sell
j. Appraisers use comparable transactions as the basis for determining fair market value- the
problem lies in determining exactly what is comparable
k. Space is usually priced on sq footage basis- matters whether common areas or outside
building are included
l. Every issue that affects the risk of either party is a natural part of the negotiations and
ultimately risk, expenses, and rent are balanced against one another
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m. Triple net leases are advantageous when the tenant can control and pay for taxes, insurance
and maintenance more efficiently than the landlord
n. Escalators reflect both parties expectations that the value of rent will be affected by inflation
– or may reflect the tenant’s expectations about its ability to pay or landlord’s expectations of
costs
o. Percentage rents- tie rent to the tenant’s gross income, to net income,, or to some other
measure of the tenant’s financial success
19. Covenant of Quiet Enjoyment
a. use the leased premises for the purpose the tenant leased the prop- any interference with
tenant’s use
b. It’s a promise on art of the landlord that neither landlord, anyone with title derived from the
landlord, nor anyone with superior title will wrongfully interfere with the tenant’s use and
enjoyment of the leased property.
c. May constitute a constructive eviction
d. Theoretically protects only against wrongful conduct by or attributable to the landlord and it
does not necessarily provide any rights to the tenant if a stranger interferes
e. Landlord does not have to personally act to interfere with tenants quiet enjoyment but if it is
within the landlord control to correct the condition may be a breach- rents apt and nightclub
tenant can’t sleep
f. Elements for Breach of Implied Covenant of Quiet Enjoyment/Constructive Eviction
1. Wrongful Conduct by or attributable to landlord
2. Substantial deprivation of enjoyment of premises
3. Notice to landlord of alleged breach
4. Reasonable time for landlord to cure
5. Abandon within reasonable time after L’s wrongful conduct
20. Habitability
a. requires the landlord to provide the premises in which a person can suitably live and places
affirmative duties on the landlord rather than depending on wrongful acts
b. duty to provide heat and water- health, safety, and other factors whether or not in lease
c. deterioration or disrepair can violate it- basic requirement-mostly residential
d. Housing codes are extensive and some of their provisions may have little relationship to
habitability
e. Javins enables the tenant to withhold rent in an amount determined by the tenant upon a
determination of violation by the tenant – if tenant withholds excessively the landlord may
recover the rent due only after litigation with the tenant remaining in possession
f. Housing codes provide helpful guidance and are not determinative
g. Not waivable only essential features needed for life, health, safety
21. Security Deposits
a. Landlord can apply back rent without itemized list
b. Amount as a deposit is limited and landlord required to separate the deposit in a trust account
and pay interest and there is a penalty for violation
22. Recoverable Damages
a. Landlord can recover for unpaid rent, injury to prop, cost of reletting
b. Tenant may be able to recover cost of moving
c. Unless authorized by statute cts have been reluctant to allow mental anguish
d. General principle of contract law requires an injured party to mitigate
e. Reasons why should not have duty to mitigate
1. why should I be forced to find another tenant, I didn’t do anything wrong they
breached why should I help them (fairness element)
2. what is reasonable conduct (was effort enough)
3. should have found sublessee
Prop I Kristl
12
4. should have put it in the lease
f. Reasons should have duty to mitigate
1. tenant context discourages waste and encourages productive use of the prop
2. discourages even persons against whom wrongs have been committed from passively
suffering economic loss which could be averted by reasonable efforts
3. also helps prevent destruction of or damage to the leased prop
4. also consistent with the trend disfavoring contract penalties
5. traditional justifications for the common law rule have proven unsound in practice
(business relationships between strangers now)
23. Lockout, Retaking of Possession, and the Landlord’s Lien
a. Common law landlord could evict the tenant by force provided that the landlord used no
more force than necessary- could enter while tenant wasn’t there remove possessions and
change locks
b. Some states still use common law
c. Some have modified to use self-help repossession- use peaceable methods
d. Frequent argument against is that self-help readily can escalate into violence- or may use
when not lawful
e. Summary proceedings impose significant legal costs on the landlord that likely never will be
recovered from the tenant- sometimes are anything but summary they may require months or
years to complete all with the tenant benefiting from free rent with the landlord paying the
landlord’s usual expenses
f. Modern lockout- landlord may change the locks but provide notice of a place where can
obtain new key- forces confrontation, reduces embarrassment and future confrontations
g. Distraint remedy imposes lien on personal property
24. Conditions and Processes for Eviction
a. - Process defined by statute which defines how landlord can take back possession of property
b. Process begins when the landlord gives the tenant notice of breach in the statutory manner
and an opportunity to cure- typically 3 days
c. Tenant may cure the violations usually by paying rent if not characterized as holding the
premises in unlawful detainer enabling the landlord to invoke the expedited remedy
d. File suit for possession
e. Trial only issue is who is entitle to possession
f. Habitability claims are raised often in eviction proceedings sometimes pretextually but even
if they are pretextual they require the development of complex facts
g. Theory is should be quick
25. Retaliatory Eviction
a. the landlord may evict for any legal reason or for no reason at all he is not we hold free to
evict in retaliation for his tenant’s report of housing code violations to the authorities
b. legally imposed rule which limits ability of landlord to act
c. When rent control or stabilization exists, various motives related to these laws can be the
basis of retaliatory eviction defenses in some jurisdictions the organizing of tenant unions or
like activities is not a lawful motive for eviction
26. Fair Housing Act of 1968 (as amended)
a. § 3604 Discrimination in the sale or rental of housing and other prohibited practiced
b. (A) to refuse to sell or rent after 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(living with someone under 18), or national origin.
c. (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.
Prop I Kristl
13
d. (C) to make, print, or publish, or cause to be made, printed, or published any notice,
statement, or advertisement, with respect to the sale o 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.
e. (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.
f. (E) for profit, to induce to 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.
g. Over 55 communities have an exemption
h. Civil rights act of 1866 has been used in modern times to prohibit housing discrimination
i. Some localities the list of prohibited discriminants is broader
j. McDonnell analysis
1. P must come forward with proof of a prima facie case of discrim
2. if P proves a prima facie case the burden shifts to D to produce evid that the refusal to
rent or negotiate for a rental was motivated by legitimate non-racial consideration
3. once D by evid articulate non-discriminatory reasons the burden shift back to P to
show that the proffered reasons were pretextual(an excuse)
k. P prima facie case usually established by inference
l. D to offer evid that the action was taken not for a prohibited reason but for a legitimate
purpose
m. Ultimately if both meet burdens it is the P burden to persuade the jury
n. §3602- Handicap means with respect to a person1. a physical or mental impairment which substantially limits one or more of such
person’s major life activities,
2. a record of having such an impairment, or
3. being regarded as having such an impairment, but such term does not include current,
illegal use of or addiction to a controlled substance
o. Familial status means one or more individuals( who have not attained the age of 18 year)
being domiciled with1. a parent or another person having legal custody of such individual or individuals; or
2. the designee of such parent or other person having such custody, with the written
permission of such parent or other person.
3. The protections afforded against discrimination on the basis of familial status shall
apply to any person who is pregnant or is in the process of securing legal custody of
any individual who has not attained the age of 18 years.
p. § 3604-Discrimination in the sale or rental of housing and other prohibited practices
q. Must make reasonable accommodations for tenants with disabilities which can minimize risk
that is posed before can terminate lease ADA
II. Possessory Estate-currently existing right to take actual possession of the prop right now- there is always a
possessory estate- someone always owns the prop
III. Future Interest- currently existing right to take actual possession of the prop some time in the future (at the
end of a possessory estate
1. can do this by deed or will
2. Only 3 kinds of possessory estate: Fee Simple Absolute, Defeasible Fees, Finite Estates
3. Fee Simple Absolute- own everything-no future interest- can create one it would just destroy FSApossession/ownership goes on forevera. O→ To A(words of purchase- who holder of interest is) and his heirs(words of limitationtell us what interest it is)
Prop I Kristl
14
b. Common Law had to have To A and his heirs
c. Modern Trend look at intent of grantor
4. Defeasible Fee- maybe grantee will have it forever if condition doesn’t occur or maybe not if
condition does occur- Some expressed condition or restriction can cut off possession/ ownership, so
maybe own forever, but maybe not
a. O→ to Mary and her heirs, but if Mary does not use the land for residential purposes, then to
Peter and his heirs
b. Someone has right to take possession in the future- future interest has to be there
c. 3 flavors
1. Fee Simple Determinable (FSD)
2. Fee Simple Subject to a Condition Subsequent (FSCS) and
3. Fee Simple Subject to an Executory Limitation (FSEL)
d. Look at FI
1. If FI held by grantor, must be FSD or FSCS (cannot be FSEL)
2. If FI held by third party, must be FSEL (cannot be FSD or FSCS)
3. Common law says if conveyance is silent on issue grantor has FI
e. Distinguishing FSD from FSCS
1. If FI in grantor, and fee automatically ended by occurrence of condition then have
FSD
a. O→ to A and her heirs so long as alcohol is not sold on the land
2. If FI in grantor, and fee is not automatically ended but subject to grantor doing
something more than have FSCS
a. O→ to A and her heirs, but if A sells alcohol on the land, then O has the right
to re-enter and reclaim the land
f. FSEL- third party FI, fee automatically ended by occurrence of condition
g. The future interests that go with Defeasible fees-only go with one fee
1. FSD: Possibility of Reverter
2. FSCS: Right of Re-entry/Power of Termination
3. FSEL: Executory Interest
h. 2 Flavors of Executory Interest
1. Springing Executory Interest- arises out of cutting off interest grantor had
2. Shifting Executory Interest- arises from cutting off interest of someone other than
grantor had
i. LIFE ESTATE (To A for life)
j. FEE TAIL (To A and the heirs of her body)
k. ESTATE OF YEARS (To A for five years)
l. FUTURE INTERESTS FOLLOWING FINITE ESTATES
1. If in Grantor = REVERSION
2. If in 3rd person = REMAINDER
3. Reversions and Remainders only follow Finite Estates
m. 2 FLAVORS OF REMAINDERS
1. CONTINGENT = Any remainder not vested
2. VESTED = Remainder where (ALL 3 TRUE)
a. R-man born
b. R-man ascertainable (identify by name)
c. there is no express condition precedent in clause creating the remainder or a
preceeding clause
d. O → To A for life, then to B and her heirs if she graduates from law school.
e. Assume A, B alive, B has not graduated from law school.
f. CONDITION PRECEDENT MUST BE EXPRESS
n. Rule of Destructability of Contingent Remainders
Prop I Kristl
o.
p.
q.
r.
s.
t.
u.
v.
15
1. A Contingent Remainder must vest at or prior to the end of the preceeding finite
estate or else the Contingent Remainder is destroyed by operation of law at the end of
the finite estate
a. O → To A for life, then to B and her heirs if she graduates from law school.
b. Assume A alive, B has not graduated.
c. Assume A dies, B has not graduated:
d. OPERATION OF RULE
e. O → To A for life, then to B and her heirs if she graduates from law school.
f. Identifying the Interests
g. O → To A for life, then to B and her heirs if she graduates from law school.
i. Assume A is alive, B has not graduated
1. A: LE
2. B: CR in FSA
3. O: Rev. in FSA
ALTERNATIVE CONTINGENT REMAINDERS
1. O → To A for life, then to B and her heirs if B graduates from law school, but if B
fails to graduate from law school, then to C and her heirs.
THE RULE OF DESTRUCTABILITY APPLIED TO ALT. CR's
1. If the finite estate ends prematurely (through merger, renunciation, or forfeiture) and
the first CR has not vested, both CR are destroyed and Reversion takes
2. If the finite estate ends naturally, then one of the CRs will get it and Reversion is
destroyed.
3. O → To A for life, then to B and her heirs if B graduates from law school, but if B
fails to graduate from law school, then to C and her heirs.
Future Interest Only Conveyance
1. O→ To A and her heirs if A gets married
a. Assume O, A alive, and A not married
i. O has possessory interest FSEL
ii. A has springing EI in FSA
Gap Scenarios
1. O→ To A for life, then to B and her heirs if B attends A’s funeral
a. Assume O, A, B alive
i. A life estate
ii. B springing EI in FSA
iii. O reversion in FSEL
2. O→ To A for five years, then to B and his heirs if B graduates from Law School
a. Assume A B alive and B is 4 yrs old
i. A estate of years
ii. B springing EI in FSA
iii. O reversion in FSEL
Conditions precedent- must occur before possession
Conditions subsequent- must occur after possession
1. O→ To A for life, then to B and his heirs, but if A stops farming the land, then to C
and her heirs
a. A life estate
b. B vested remainder subject to divestment
c. C shifting EI
Vested Remainder Subject to Divestment(VRSD)- Vested Remainder can be lost by the
occurrence of a condition that occurs before the remainder ever gets possession
Effect of Condition on Remainders-RULE
1. Remainder with a condition qualifying it
Prop I Kristl
16
a. If it’s a condition subsequent (that is something which affects grantee’s right
to retain possession after grantee has taken possession)= Remainder is one of
the Defeasible fees
b. If it’s a condition precedent (that is, something which affects grantee’s right
to take posseression before grantee has taken possession) look where the
condition is expressed.
i. If occurs in clause creating the remainder or the preceding clause =
Contingent Remainder
ii. If expressed in clause after the clause creating the remainder= Vested
Remainder Subject to Divestment
w. VRSD
1.
2.
3.
4.
must be a Remainder
must be Vested
must have an Express condition precedent
O→ To B and her heirs, but if B sells alcohol on the land, then to C and her heirs (no
remainder B has FSEL C shifting EI)
5. O→ To A for life, then to B and her heirs, but if A sells alcohol on the land, then to C
and her heirs (A life estate B VRSD C has shifting EI in FSA)
x. Conditions Subsequent
1. O → To A for life, then to B and his heirs, but if B stops farming the land, then to C
and her heirs
a. A: LE
b. B: vested remainder in FSEL
c. C: shifting EI in FSA
d. O: none
y. Conditions Precedent
1. CR- if in clause or before clause creating the remainder
a. O → To A for life, then to B and his heirs if B graduates from law school.
i. A: LE
ii. B: contingent remainder in FSA
iii. O: reversion in FSA(if has not vested by end of LE)
2. VRSD- if in clause after the clause creating the remainder
a. O → To A for life, then to B and his heirs, but if A stops farming the land,
then to C and her heirs
i. A: LE
ii. B: vested remainder subject to divestment in FSA
iii. C: shifting EI in FSA
iv. O: none
z. What if the Condition Could Occur Before or After Possession?
1. O → To A for life, then to B and his heirs, but if C graduates from law school, then to
C and her heirs
2. A, B, C alive, C has not graduated from law school.
a. A: LE
b. B: VRSD in FSEL
c. C: shifting EI in FSA
d. O: none
3. O → To A for life, then to B and his heirs, but if C graduates from law school, then to
C and her heirs
a. A dead, B, C alive, C has not graduated from law school.
i. A: none
ii. B: FSEL
Prop I Kristl
17
iii. C: shifting EI in FSA
iv. O: none
aa. Alternative Contingent Remainders
1. O→ to A for life, then B and his heirs if B graduates from Law school, but if B
doesn’t graduate, then to C and his heirs.
a. A: LE
b. B: contingent remainder in FSA
c. C: alternative contingent remainder in FSA
d. O: reversion in FSA (only if LE ends prematurely without B vesting it would
destroy both contingent remainders)
bb. Class Gifts
1. O To A for life, then to B’s children and their heirs
a. A, B alive, B has no children
i. A: LE
ii. B’s kids: contingent remainder in FSA
iii. O: reversion in FSA
b. A, B alive, B has a child C
i. A: LE
ii. C: vested remainder subject to open in FSA
iii. O: nothing
2. Once one member of class could take possession remainder becomes vested subject to
open
a. Class remains open until class closes
b. Class can close in Two ways
i. Naturally/biologically- ex above when B dies there can be no more
children
ii. Rule of convenience- created at common law to avoid uncertaintyonce one or more members of the class can take possession the class
closes
1. O To A for life, then to B’s children and their heirs
a. A, B alive, B has one child C
i. A: LE
ii. C: VRSO in FSA
b. A dies, B alive, B has one child C
i. C: FSA
c. A alive, B dies, B has one child C
i. A: LE
ii. C: vested remainder in FSA
3. More examples- Express Condition Subsequent
a. O To A for life, then to B’s children and their heirs, but if any child of B’s
sells alcohol on the land, to C and her heirs.
i. A,B, C alive, B has one child X
1. A: LE
2. X: vested remainder subject to open in FSEL
3. C: Shifting EI in FSA
4. Express Condition Precedent
a. O To A for life, then to B’s children who survive A and their heirs.
i. Assume A, B alive, and B has 2 kids C and D
1. A:LE
2. C and D: nothing
Prop I Kristl
5.
6.
7.
8.
18
3. O: reversion in FSA
4. B’s kids who survive A: contingent remainder in FSA
THE RULE AGAINST PERPETUITIES
a. NO INTEREST IS GOOD, UNLESS IT MUST VEST, IF AT ALL, NOT LATER THAN 21
YEARS AFTER SOME LIFE IN BEING AT THE CREATION OF THE INTEREST
b. NO INTEREST IS GOOD
c. RAP applies ONLY TO:
1. Contingent Remainders
2. Executory Interests
3. Vested Remainders Subject to Open
d. MUST VEST IF AT ALL
1. General Rule: Interest “vests” for RAP if it has right to become Possessory
2. So ask: Will the FI definitely become or definitely not become possessory
e. NOT LATER THAN 21 YEARS AFTER SOME LIFE IN BEING AT THE
CREATION OF THE INTEREST
1. “Perpetuities Period” -- Time that FI must “vest” (i.e., definitely become or definitely
not become possessory)
2. “Life in Being” – someone alive at time conveyance occurs (deed vs. will)
3. IS NOT simply 21 years later (because some Life in Being can live for many years
before dying. 21 year clock starts AFTER all Lives in Being have ended)
4. RAP applies AT MOMENT FI CREATED
5. If (no matter how implausible) you can create 1 scenario where interest could vest
ONLY AFTER the Perpetuities Period, the interest violates RAP and is VOID
6. If you cannot create a scenario in which interest could vest ONLY AFTER the
Perpetuities Period, then interest does not violate RAP and is VALID
CREATE, COUNT, and KILL APPROACH
a. CREATE a person not alive at time of transaction in whom interest can vest (or can have a
child in whom interest can vest)
b. KILL everyone alive at the time of the transaction (so that there are no more lives in being at
the creation of the interest)
c. COUNT 21 years. If created person can claim possession ONLY AFTER the 21 years, RAP
violated and FI VOID
d. O → To A for life, then to B and her heirs.
1. A:LE
2. B: vested remainder in FSA
CR
a. O → To A for life, then to A's first child to reach age 25 and his or her heirs.
1. A has 2 children, B (age 23) and C (age 20)
a. A: LE
b. A’s 1st child 25: contingent remainder in FSA- void
c. O: reversion in FSA
b. O → To A for life, then to B and his heirs if B reaches age 25.
1. Assume O, A, B alive, B is 23 yrs old.
a. A:LE
b. B: contingent remainder in FSA- valid
c. O: reversion in FSA
d. Create Z heir of B Kill OAB Count 21 is it possible Z would vest outside
perpetuities period? No B didn’t reach 25
2. What if B is 1 yr old?
a. Same as above
DEED vs. WILL
Prop I Kristl
19
a. O → To A for life, then to O's first grandchild and his or her heirs.
1. Assume O, A alive, O has 3 children and no grand-children.
b. Conveyance by Deed:
1. A: LE
2. O’s 1st grandchild: contingent remainder in FSA- void
3. O: reversion in FSA
4. Create child of O –H Kill O, A, O’s 3 children – Count 21 yrs is it possible H has
child after 21 yrs? Yes 1st grandchild could vest after perpetuities period CR void
c. Conveyance by O’s Will:
1. A:LE
2. O’s 1st grandchild: contingent remainder in FSA-valid
3. O’s heirs- reversion in FSA
4. Create well O is dead so only thing could create is a grandchild which would
automatically vest so within perpetuities period because O’s children lives are part of
perpetuities period- we will know for sure within whether O has a grandchild- so
valid
d. Some Problems
e. O → To A for life, then to A’s first child B and her heirs if B marries C.
1. Assume O, A, B are alive, B has not married C.
a. A: LE
b. B: contingent remainder in FSA – valid
c. O: reversion in FSA
f. O → To A for life, then to A’s first child to marry and his or her heirs.
1. Assume O, A are alive, A has two unmarried children, B and C, and B is engaged to
be married tomorrow.
a. A: LE
b. A’s 1st child to marry: contingent remainder in FSA- void
c. O: reversion in FSA
9. EXECUTORY INTERESTS
a. O → To A and her heirs as long as alcohol is not sold on the land, then to B and his heirs.
1. A: FSEL
2. B: Shifting EI in FSA - void
b. O → To A and her heirs, but if alcohol is sold on the land, then to B and his heirs.
1. A: FSEL
2. B: Shifting EI in FSA – void
c. EFFECT OF RAP on the EI’s
d. O→ To A and her heirs as long as alcohol is not sold on the land, then to B and his heirs.
1. A: FSD
2. O: possibility of reverter
e. O → To A and her heirs, but if alcohol is sold on the land, then to B and his heirs.
1. if clause doesn’t make sense after interest is voided then take it out also- but if
alcohol is sold on the land
2. left with O To A and her heirs
a. A: FSA
f. EI’s TIED TO LIFE IN BEING
g. O → To A and her heirs, but if alcohol is sold on the land, then to B and his heirs.
1. A: FSEL
2. B: Shifting EI in FSA- void
h. O → To A and her heirs, but if A sells alcohol on the land, then to B and his heirs.
1. A: LE
2. B: Shifting EI in FSA- valid
Prop I Kristl
20
i. VRSD
j. O → To A for life, then to B and his heirs, but if A sells alcohol on the land, then to C and
her heirs.(precedent condition in clause after one creating interest =VRSD)
1. A: LE
2. B: VRSD in FSA
3. C: Shifting EI in FSA- valid
10. Class Gifts (Vested Remainder Subject to Open)
a. RULE: Every possible member of class MUST VEST within Perpetuities Period for interest
to be valid
b. O → To A for life, then to A’s children and their heirs.
1. A: LE
2. A’s children: contingent remainder subject to open in FSA- valid
3. O: reversion in FSA
4. Create c child of A Kill OA Count 21 – C will get possession second A dies so valid
c. O → To A for life, then to A’s grandchildren and their heirs.
1. O, A alive B is child of A and X is A’s grandchild
2. A: LE
3. A’s grandchildren: vested remainder subject to open- void
4. O: reversion in FSA
5. Create D child of A Kill O,A Count 21 – could have child after 21 years so void
d. O → To A for life, then to B’s children for life, then to B’s grandchildren and their heirs.
1. Assume A and B alive, B has 4 children (K, L, M, N) and 2 grandchildren (R, S)
a. A: LE
b. B’s children: vested remainder subject to open in LE-valid
c. B’s grandchildren: vested remainder subject to open in FSA-void
d. Create child of B Kill A, B, O, K, L, M, N, R, S Count 21 child of B would
take possession second A dies so valid
e. Create child of B Kill A, B, O, K, L, M, N, R, S Count 21 child of B could
have child after 21 yrs so void
f. Left with O To A for life, then to B’s children for life.
i. A: LE
ii. B’s children: VRSO in LE
iii. O: reversion in FSA
11. Estate of Kreuzer pg 768- briefed
a. T: ¼ to Keith, ¼ to Michelle, ¼ to trust A, ¼ to trust B
b. Trust A: for benefit of children of daughter Michele born/ adopted prior to Michele turning
age 40 (for grandkids education)
c. Trust B: for benefit of children of daughter Keith born/ adopted prior to Keith turning age 40
(for grandkids education)
d. A and B: upon youngest beneficiary of trust reaching 35 or sooner dying, remaining principal
and income of the trust to beneficiaries then living
e. Michele says trusts violate RAP
f. Keith and Michele have FSA
g. Trust B: contingent remainder subject to open in FSA
h. Trust A: contingent remainder subject to open in FSA
i. Estate: Reversion in FSA
j. CR are void because could vest outside perpetuities period
12. Modern approaches to RAP
a. Reformation- can reform or rewrite a conveyance by statutory grants of authority so that it
does not violate RAP
Prop I Kristl
21
b. Cy Pres- function of equitable power of the court of equity- equity meaning do justiceallows a court to reform or rewrite a conveyance under their equitable power
c. Wait and See- wait and see if interest vests – difference is the interest is treated as valid while
wait and see – periods can vary by statute in individual state
d. Uniform Statutory Rule Against Perpetuities (USRAP)- provides for a 90 year wait and see
period and provides court with reformation powers as well- treats interest as valid during
wait and see period- adopted by half of states
e. How to avoid RAP problems:
1. Rule only applies to CR, EI, VRSO so try to draft without or
2. can use Savings Clause, conveyance provides that all interests not yet vested just
before the close of Perpetuities period either vest at that time or are definitely
destroyed- so interest won’t be void under RAP
a. “Not withstanding anything to the contrary herein, any gift, devise, or bequest
hereunder shall (or shall not) vest not later than 21 years after the death of the
last survivor of my issue living on the date of my death.”
13. EXAMPLES
a. OTo A for life, then to the first child of A to reach age 25 and his or her heirs.
1. Assume A is alive and has one child (B) who is 23
a. A: LE
b. 1st child 25: contingent remainder in FSA
c. O: reversion in FSA
d. Create child of A Kill O,A,B Count 21- child would vest after perpetuities
period so void at moment created under common law approach to RAP- left
with O To A for life
27. Under Modern law – Reformation- would change 25 to 21 so A: LE B: vested remainder in FSA –
Cy Pres- easiest way to do justice would be to change age to 21 as well-Wait and See- keep interest
valid and wait 2 more years to see if B makes it to 25 and if the interest vest- USRAP- wait 2 more
years as well
IV. Common Law Land Use Regulations
1. Trespass- required a physical invasion on prop of another
2. Nuisance- involved other interferences – the unreasonable, unusual, or unnatural use of one’s prop
so that is substantially impairs the right of another to peacefully enjoy his or her prop
a. Public Nuisance- usually involves a more clearly unlawful act, since what is alleged is
general harm to the public
b. Private Nuisance- involved more targeted harm to a particular prop- multi-factor balancing
test
c. Private Nuisance Old elements from Common Law of Public Nuisance
1. the condition complained of had a natural tendency to create danger and inflict injury
upon person or property
2. the danger created was a continuing one
3. the use of the land was unreasonable or unlawful(D’s conduct) and
4. the existence of the nuisance was the prox cause of the P’s injuries and damages
d. Problem being Private is about unreasonableness of interference with P’s use not that D use
of land was unreasonable
e. Private Nuisance New elements –Restatement § 822
1. there was an invasion of the P’s use and enjoyment of his or her prop
2. the D’s conduct was the prox cause of the invasion and
3. the invasion was either intentional and unreasonable or unintentional and the D’s
conduct was neg or reckless
f. Reasonable Person Standard – must be unreasonable and substantial interference
g. Unreasonable Conduct (old) v Unreasonable Interference (new)
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h. Some level of interference in modern society is inherent – so the interference must be
substantial since the D have the right to use their land productively and the P do not have
unlimited rights to control their neighbor’s prop
3. Zoning- way to regulate how prop can be used
a. Euclidean Zoning- type of land use regulation divides municipality into districts and
catalogues the types of uses, permitted heights, and required (or limited) square footage
applicable to each
b. Non-Euclidean Zoning- conditional zoning, special use permits, floating zones, planned unit
developments, and other devices
c. SZEA
1. Standard idea and mechanism for carrying out Euclidean Zoning
2. Need districts- can be oddly shaped but must be for purposes of the act and consistent
with a comprehensive plan
d. The standard has been highly successful model act
e. Some use overlapping zones
f. Zoning of a kind that benefits a narrow area at the expense of surroundings is indicative of
zoning that fails to conform to a comprehensive plan
g. Euclid key holding- the ordinance is not “clearly arbitrary and unreasonable, having no
substantial relation to the public health, safety, morals, or general welfare” and so sufficient
to sustain under DP clause
h. Spot zoning- odd-shaped or narrowly defined zones that favor or disfavor relatively few
citizens – regulation of a kind that violates the comprehensive plan requirement – just little
piece of district
i. Downzoning- new zoning classification can drastically reduce value of some parcelsproduces claims of unfairness or illegality by affected landowners
j. Upzoning- zoning change that increases the commercial use and value of prop- produces
complaints by homeowners
k. Stability vs change is a recurring theme in land use law
l. Extension zoning- the redrawing of borders to expand or contract an existing zone rather than
creating new “gallstone” zones within zones – more likely to be upheld as consistent with a
comprehensive plan
m. Zoning is constrained by state law and limited by Constitution – heavy dose of politics
n. Administrative view- Zoning commissioners undertake ministerial duties, carrying out an
existing, stable written plan, and allegedly do not make political decisions
o. Legislative model- analogizes zoning instead to legislation with the zoning authority making
legislative politically influenced decisions
p. Cts that have adopted admin view have been forced to retreat from it
1. politically powerful individuals cannot be deterred from seeking advantage
2. cts cannot manage social changes of the complexity that land use presents
3. the admin model is basically anti-democratic since it attempts to control a
democratically instituted body by judicial fiat
4. zoning is inherently political
q. Some states require explicit comprehensive/master plan
r. If proper procedures are followed and if the zoning does not violate any principle of law we
can ignore political motives and lobbying efforts by private parties
s. Flexibility- Processes for altering Zoning Designations
4. Special Use Permit/Conditional Use Permit -allowed with ordinance need permission
5. Variance- involves an excused violation of a zoning ordinance because a special use permit creates a
permitted exception, one that is regarded as an appropriate use but the zoning ordinance but that mat
require careful placement
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6. Floating Zone- specifies standards without designation of any geographical area- usually used for
undeveloped land where a developer will apply to have particular land classified within the floating
zone
7. Cluster Zoning- enables the developer to qualify a unique “planned unit development” that includes
different kinds of uses and that varies from precise zoning requirements
8. SUP/CUP- §7 SZEA: Board of Adjustment has power to hear and decide special exceptions under
terms of ordinance
a. Concept: Districts have permitted uses that automatically qualify
b. Ordinance identifies other uses that could be allowed but only if Board approves the
particular use 9a special exception) gets a SUP/CUP
9. Rigorous historic preservation ordinance that does not require balancing for uses such as educational
institutions unconstitutional (Union) because it bears no substantial relation to the general welfare
10. Conditional use permit- more flexible allows for particularized conditions
11. Special use permit- sets out conditions or standards as a matter of uniform policy
a. Both need more scrutiny by zoning board – process of hearing needed – gives flexibility to
zoning
12. Floating zones- because the city has not defined boundaries and a later amendment will be necessary
to fix its location
13. Cluster zoning- allows for larger expanses of open space and for greater variation in developmentresult is often described as a planned unit development meaning that a large area comprising
multiple structures is designed as a whole in a way that does not conform to zoning requirements
imposed elsewhere – PUDS often facilitated through floating zones
14. Nonconforming use- preexisting classification and use that doesn’t conform w/ zoning after/because
of a change in zoning classification
15. Vested Right- right in pre-existing use that, if interfered with might be a taking or violate due
process
16. If zoning authority insistence on removal may be interfering with vested rights
17. Amortization- May provide for tolerance for period of nonconforming use for a limited period of
time- when causes hardship- right to recoup losses- partial grandfather
18. Validity of the rule of the zoning board depends on its reasonableness – presumed valid and the
owner must carry the heavy burden of overcoming that presumption by demonstrating that the loss
suffered is so substantial that it outweighs the public benefit to be gained by the exercise of the
police power
19. Nonconforming use rights arose when the purpose for which the land is leased does not comply with
the use regulations applicable to the district in which the prop is located- made it a nonconforming
use under language of the ordinance
20. Majority rule- Mere planning is not enough to establish nonconforming use rights
a. Actual commencement of construction, or at least the obtaining of a building permit must be
undertaken before recognition of nonconforming use rights
21. Can’t induce a developer and then change the zoning- may be granted an estoppel – couldn’t enforce
the downzoning because of actions taken prior
22. Variances- Approved permanent treatment of land in a manner different from what zoning requires
because of land characteristics(shape, features, location)
a. represent cases in which given parcel permanently ought to be treated differently from
neighboring land
b. modify requirements when land can not be used for intended zoning
c. usually involve an element of hardship to an indiv landowner
d. usually must have to do with the characteristics of the particular parcel of land and it must be
balanced against the public interest
23. authorized to grant a variance if (elements)
a. the variance will not be “contrary to the public interest”
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b. “special conditions” exist such that “a literal enforcement of the provisions of the ordinance
will result in unnecessary hardship”
c. “the spirit of the ordinance shall be observed and
d. substantial justice will be done
24. Cts old rule for unnecessary hardship- zoning ordinance prevents the owner from making any
reasonable use of the land
25. Cts change the rule in Simplex in order to give prop owners more rights - unnecessary hardship
when
a. zoning ordinance interferes with reasonable use considering the unique setting
b. no fair and substantial relation exists between purpose of ordinance and specific restraints
c. variance would not injure public or private rights of other
26. Use Variance- permits the use of the land that is not in conformance with the zoning ordinanceharder to get higher proof
27. Area Variance-use is allowed under the ordinance but want to change some requirement of the
ordinance to be allowed
V. Exactions: Requiring Public Dedication
1. Dolan Test-Land use exaction is a taking requiring just compensation unless
a. Need Nexus Between the legitimate state interest and condition imposed and Rough
Proportionality between exaction and impact of project
2. Nollan v California Coastal Commission
a. Need “FIT” between Condition Imposed(Exaction) and Burden (what condition addresses)
1. got to be some connection between the two or gov could be considered as taking
VI. Limits of Government Power over Property
1. Due process and equal protection sound like rigorous supports for prop rights but they provide only
the loosest kind of support(against arbitrary and irrational laws)
2. 14th applies to states dp equal protection clause- 5th amend for federal dp
3. Substantive due process- the dp clause may be used to protect against arbitrary state deprivations of
life, liberty, or property of various kinds
4. Modern approach- upholds any law affecting prop rights that has a rational basis- if supported by a
plausible argument- very easy to meet
5. In areas of social and economic policy, a statutory classification that neither proceeds along suspect
lines nor infringes fundamental constitutional rights must be upheld against equal protection if there
is any reasonably conceivable state of facts that could provide a rational basis for the classification
6. Those attacking rationality have the burden to negative every conceivable basis which may support it
and it is irrelevant whether conceived reasons is actual reason
7. Stevens believes when the actual rationale for the legislative classification is unclear we should
inquire whether the classification is rationally related to a legitimate purpose that we may reasonably
presume to have motivated an impartial legislature
8. Eminent domain- take private prop for public use with just compensation
9. Taking clause only applies when there is a taking of prop
10. Intended Taking- Eminent Domain or condemnation- Kelo
11. Taking by Effect- Regulatory Taking- Loretto, Nollan, Dolan, Penn Central
12. 5th amend - “Nor shall private prop be taken for public use without just compensation”
13. Must look to upon whom the loss of the changes should fall
14. Loretto v Teleprompter Manhattan Catv Corp.
a. when faced with a constitutional challenge to a permanent physical occupation of real prop
this court has invariably found a taking without just compensation Fifth amen public use
clause- if prop not used for public use considered a taking
b. Public use is broad and public use can occur even where title to the prop is taken form on
private owner and given to another
VII. Taking by Regulation of Use
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1. Significant factors in whether a gov regulation is a taking- Penn Central v NY
a. Valid public purpose – why is this law being passed
b. character/nature of gov action- how intrusive is it
c. Investment-Backed expectations
d. Diminution in value
2. When regulation limits prop owner
3. If an exaction when trying to get permit use Nollan/Dolan test
4. Lucas v South Carolina Coastal Council
a. denying a landowner all economically viable use of his land constitutes a taking- when 100%
automatic
1. Problem with this rule
a. Lose 99% of value will not be a taking
i. Can still be if meet the test though
b. How do you define economically viable use
5. Future generations have a right to challenge unreasonable limitations on the use and value of the
land
6. First English Evangelical Lutheran Church v County of Los Angeles
a. Inverse condemnation- regulation which was temporary regulatory taking- Rehnquist says
still a taking need compensation
7. Just compensation is measured by the prop owner’s loss rather than the gov gain – must be put in as
good as a position as before not better
a. Brown v Legal Found of Wa- client funds are held in trust account as trustee-If money will
generate interest put separate and give interest to client if will not generate enough to cover
the cost of the account than put it into an Interest On Lawyers Trust Accounts (IOLTA)there interest will go to Wa Legal Aid Foundation- some clients said it’s a taking- yes it’s a
taking but prop owner loss was $0
8. Moratorium(stop) on development is not always a taking- cts must decide how long is too long –
wouldn’t want them to build something and then pass an ordinance that would make them a nonconforming use
a. Suitam v Tahoe 32 mos not enough
b. First English Evangelical Lutheran Church 8 years too long
9. US v 50 Acres of Land- Don’t have to pay for substitute facility-standard is only use objective test
of ascertaining fair market value of land seized and that is value of just compensation
10. There are alternate measures of compensation only available when the market is “ too difficult to
find” or “would result in manifest injustice”
a. ex: condemnation of roads or sewers or flooding of an entire town
11. comparable sales- recent sales of similar prop in the same area
12. differences in appraisals result from decisions about which sales are really comparable and what
adjustments must be added for unique aspects of the prop
13.