Property Syllabus Spring 2009

Professor David N. Cassuto
Office: Preston 319
Phone: 422-4456
Office Hours: T – 3:30-5pm and by appointment
Secretary: Denise Acevedo
Phone: 422-4263; email:
Spring 2009
Property is nothing but the basis of expectation; the expectation of
deriving certain advantages from a thing we are said to possess, in
consequence of the relation in which we stand towards it. . . . Now
this expectation, this persuasion, can only be the work of law. I
cannot count upon the enjoyment of that which I regard as mine,
except through the promise of the law which guarantees it to me . . .
-- Jeremy Bentham
Casebook (required): CASNER, LEACH, ET AL., PROPERTY (5th ed., 2004)
Listed below are several treatises. You may find it useful to consult relevant sections of them during
the course of the semester. I suggest perusing the copies on reserve at the library before you buy.
Course Policies
In order to receive regular course Email messages and have access to the course discussion board,
and other archived materials, you must register for the course on The West Education Network
(TWEN) immediately. Please be sure that your registered Email address on TWEN is the one that
you check most frequently. Some course Emails may be time-sensitive.
Grading Policy
Your final grade in this 4-credit course will be based on an anonymous, closed book, final
examination to be given at the scheduled time during the final examination period. However, you
are also expected to come to class prepared and ready to participate. This includes having done the
required readings and participating insightfully in discussions (both when volunteering and when
called upon to contribute). If you are absent more than three times or ask not to be called upon on
more than two occasions, it will negatively impact your grade. If you are ever unprepared when
called upon, your grade is similarly at risk.
Appropriate Use of Technology
You are welcome to take class notes on a laptop computer. During class, you also may occasionally
access Lexis or Westlaw for the purposes of finding a pertinent case or statute. Except for the
authorized methods and uses described above, no student use of computers during class time is
authorized for any reason whatsoever, unless otherwise specified by me. Please be aware that
computer activity may be monitored.
Office Hours and Conferences
I am often in my office at times other than those listed atop page 1. You are welcome to come see
me at any time to discuss the course, law school in general, or whatever else you may be thinking
Reading Assignments
Read the following pages of the casebook and case supplement (Supp.), and carefully consider all
included problems, except as otherwise indicated.
Reading # 1
Nature of Property: Original Acquisition
pp. 1-2 (The nature and importance of property)
pp. 34-54 (Pierson v. Post; Keeble v. Hickeringill; Popov v. Hayashi)
Marsh v. Colby 39 Mich. 626 (1878) (Supp.)
Reading # 2
Nature of Property: Rights against Others
pp. 3-12 (Jacque v. Steenberg Homes)
pp. 19-20 (Canons of Property Talk)
pp. 54-61 (Anderson v. Beech Aircraft)
Finley v. Teeter Stone, 248 A.2d 106 (Md. 1968) (Supp.)
Adirondack League Club v. Sierra Club, 92 N.Y.2d 591 (1998) (Supp.)
Reading # 3
Property Rights against the Regulatory State
Pennsylvania Coal Co. v. Mahon, pp. 1109-13
Miller v. Schoene, pp. 1113-15
Lucas v. South Carolina Coastal Council, pp. 1168-82
Lingle v. Chevron, 125 S.Ct. 2074 (2005) (handout)
Reading # 4
Finders' Rights
pp. 76-79 (Armory v. Delamirie)
pp. 83-96 (Hannah v. Peel; McAvoy v. Medina; Benjamin v. Lindner)
pp. 96-98 (Honesty, Morality and Legal Protection of Prior Possession)
pp. 98-100 (treasure trove)
Hurley v. City of Niagara Falls, 289 N.Y.S.2d 889 (4th Dept. 1968) (Supp.)
N.Y. PERS. PROP. LAW § 251 (Supp. p. 8) [also scan §§ 252-256]
Reading # 5
pp. 79-80 (Bailments)
Peet v. Roth Hotel Co., 253 N.W. 546 (Minn. 1934) (Supp.)
Samples v. Geary, 292 S.W. 1066 (Mo. Ct. App. 1927) (Supp.)
Noworyta v. Klippert, 122 A.D.2d 548 (4th Dep't 1986) (Supp.)
Pavesi v. Carollo, 105 A.D.2d 832 (2d Dep't 1984) (Supp.)
pp. 80-83 (The Winkfield)
Reading # 6
Adverse Possession
Gillespie v. Dew (Supp.)
pp. 115-24 (Johnson v. M'Intosh)
pp. 125-30; 131-37 (Ewing v. Burnet; Nome 2000 v. Fagerstrom)
Reading # 7
Adverse Possession (cont’d)
pp. 138-47 (Lawrence v. Town of Concord)
Birnbaum v. Brody, 156 A.D.2d 408 (2d Dep't 1989) (Supp.)
Ray v. Beacon Hudson Mountain Corp., 88 N.Y.2d 154 (1996) (Supp.)
Bova v. Vinciguerra, 184 AD2d 934 (3d Dept 1992) (Supp.)
Miller v. Rau, 193 AD2d 868 (3d Dept 1993) (Supp.)
pp.130-31 (Tacking)
pp. 147-48 (skip question 2) -- Tolling for Disability
Reading # 8
Adverse Possession (cont’d)
pp. 149-56 (Kiowa Creek v. Nazarian; Dieterich v. J.S. & J. Services)
Winchester v. City of Stevens Point (Supp.)
Reading # 9
Gifts of Personal Property
pp. 627-36 (Irons v. Smallpiece; Newell v. Nat’l Bank)
pp. 642-43 (Notes 2-3; Symbolic delivery and delivery to a third person)
pp. 648-53 (Gruen v. Gruen)
Reading # 10
Introduction to Real Property Law
pp. 297-313
For further historical elaboration, see pp. 1-26 of MOYNIHAN.
Reading # 11
The Fee Simple Estates; defeasibility; the Fee Tail
pp. 319-45 (Station Assocs v. Dare County; Red Hill v. Hammond; Palm Springs v. Living
p. 371 (note 2: statutory treatment of fee tail)
Reading # 12
Life Estates and their Future Interests
pp. 349-53 -- Nature of the Life Estate (Estate of Kinert)
pp. 345-49 -- Creating a Life Estate (Nelson v. Parker)
pp. 353-61 (Estate of Jackson; Hausmann v. Hausmann)
Reading # 13
Introduction to Future Interests
pp. 361-65 (skip last paragraph on p. 365)
BASIC FUTURE INTERESTS (To be used in connection with the next several assignments. Go
through it now to get an overview; refer back as needed for the next several assignments.)
Reading # 14
Trusts and the Statute of Uses
pp. 372-73 – The Concept of Trusts
pp. 313-18 – The Statute of Uses
Reading # 15
Rule Against Perpetuities
pp. 373-99 (Estate of Anderson; Symphony Space v. Pergola Properties)
Reading # 16
Introduction to Leasehold Estates
pp. 403-04 – the Leasehold Estates
28 Mott Street v. Summit Import, 299 N.Y.S.2d 763, 316 N.Y.S.2d 259 (1970) (Supp.)
Garner v. Gerrish, 63 N.Y.2d 575 (1984) (Supp.)
Reading # 17
Landlord & Tenant
pp. 527-36 -- The "Dual" Relationship: Lease Assignments (Kelly v. Tri-Cities)
pp. 536-51 – Sublease & Assignment (Amer. Comm’y Store v. Newman; Julian v. Christopher)
Reading # 18
Landlord Breaches (Tenant's Rights); Tenant Breaches
pp. 412-25 -- constructive eviction (Blackett v. Olanoff; Wesson v. Leone Enterprises)
Manhattan Mansions v. Moe's, 149 Misc. 2d 43 (1990) (Supp.)
pp. 426-37 (Javins v. First National Realty)
Holy Properties Limited v. Kenneth Cole Productions, 87 N.Y.2d 130 (1995) (Supp.)
Reading # 19
Concurrent Ownership
pp. 553-58 (including Martin v. Martin)
pp. 568-74 (including Downing v. Downing)
Hoag v. Hoag, 99 N.E. 521 (Mass. 1912) (Supp.)
NY EPTL §6-2.2 (Supp.)
Prario v. Novo, 645 N.Y.S.2d 269 (1996) (Supp.)
pp. 581-89 (including Sawada v. Endo)
Kolb v. Anisis, 478 N.Y.S.2d 720 (2d Dep't 1984) (Supp.)
pp. 606-11 (including Elkus v. Elkus)
Reading # 20
Express Easements; Easements by Implication
pp. 889-97 (including Brown v. Penn Central)
Simmons v. Abbondandolo, 184 AD2d 878 (3d Dept. 1992) (Supp.)
pp.897-903 (Stratis v. Doyle; Cooper v. Boise Church of Christ)
pp. 903-17 (easements by estoppel and by implication from use or necessity—
Mund v. English, VanSandt v. Royster, Morrell v. Rice)
pp. 917-24 (easements by prescription redux; easements in invitim)
Paxson v. Glovitz; Goulding v. Cook)
Reading # 21
Scope of Easements
US Cablevision v. Theodoreu, 192 AD2d 835 (3d Dept 1993) (Supp.)
pp. 929-38 (Davis v. Bruk; Lewis v. Young)
pp. 939-50 (Brown v. Voss; Pasadena; Fairbrother v. Adams; Skip problem on 943)
Reading # 22
Covenants and Equitable Servitudes
pp. 954-61 (Background material: skim only)
pp. 961-83 (Runyon v. Paley; Sonoma Development v. Miller)
Orange & Rockland Utilities v. Philwold, 52 NY2d 253 (1981) (Supp.)
Riverton Community Assn v. Myers, 84 A.D.2d 1063 (4th Dept. 1992) (Supp.)
Malley v. Hanna, 65 NY 2d 289 (1985) (Supp.)
Tulk v. Moxhay (Supp.)
Reading # 23
Termination of Easements & Other Servitudes
pp. 950-54 (Central Oregon Fabricators v. Hudspeth; Restatement §7.10)
Orange & Rockland Utilities v. Philwold, Part III only (Supp.; reprise)
pp. 1044-50 (Rick v. West)
pp. 1058-1063 (Westwood Homeowners Assn v. Lane County)
Witter v. Taggart, 78 NY2d 234 (1991) (Supp.)
Reading # 24
Conveyancing: The Contract
pp. 655-70 (introduction: skim)
pp. 675-80 (Brokers—Tristram’s Landing)
pp. 687-89 (Statute of Frauds)
N.Y. GEN. OBLI. L.§ 5-703 (Statute of Frauds) (Supp.)
Tymon v. Linocki, 213 N.E.2d 661 (N.Y. 1965) (Supp.)
pp. 689-93 (Conditions in Contract of Sale—Sechrest v. Safiol)
pp. 693-700 (marketable title—Conklin v. Davi)
pp. 700-05 (equitable conversion/risk of loss—Bryant v. Willison)
pp. 705-12 (Quality of the Property—Stambovsky v. Ackley)
Reading # 25
Conveyancing: The Deed and Mortgages
pp. 714-33 (deeds; Chandler v. Chandler; Seymour v. Evans)
pp. 734-40 (mortgages)
Reading # 26
The Recording Acts
pp. 744-50 (stop with problem 5 on 750); 751-52 (Ryczowski v. Chelsea Title)