PROPERTY LAW
Introductory Materials:
What is Property?
Property is the relationship among people w/r/t things, not the things themselves.
Real Property: Land and things attached
Personal Property: Things that can be moved (chattels)
Other breakdowns:
Blackstone:
Tangible/Intangible
Period of Time (timeshare, life estate, por ejemplo)
Public/Private
“the sole and despotic dominion that one claims and exercises over the external things of the
world, in total exclusion of others.”
Felix Cohen said that property is anything to which you can attach the following:
To the world:
Keep off, unless you have my permission, which I may grant or withhold.
Love,
Private Citizen (/s/)
Endorsed by the State
Property is social construct: depends on values of society (at one point, U.S. thought it possible to have a
property interest in human beings. Mauritania still does.) Native Americans believed you couldn’t “own”
land. Property law depends on society accepting what property rights are.
Again, property is legal relationships (with rights and responsibilities) relative to things.
Likened to a bundle of sticks:
Use
Possession
Alienate or Dispose
Exclude
Enjoyment (of fruits or profits)
Destroy/Consume
May have one of the sticks, may have five. U.S. uses law, zoning to limit your number of sticks.
Rights and Responsibilities—take this concept to remainder of material.
Chapter 1: First Possession: Acquisition of Property by Discovery, Capture and Creation
Maxim of Roman Law: Who is first in point of time is stronger in right
A. Acquisition by Discovery
Johnson v. M’Intosh
Facts:
Piankeshaw Indians
Contract
U.S. Government
Patent
Johnson
v.
M’Intosh
Court finds for M’Intosh. How can an entity that had land second can grant? Court said that the Native
Americans were “mere occupiers.” They had the right of occupancy, but no title to convey. The U.S.
was the first (relative to other European countries) to arrive:
Discovery Doctrine:
1. Agreement between the countries of Europe: if any of us comes across new land, get title. But have
to recognize the indigenous people’s right of occupancy.
2. Discoverer gets preemptive right to take title of occupancy from indigenous. But only government
could receive title. (Couldn’t transfer land to any entity but U.S government).
Discovery + Conquest = Title
Rights of original inhabitants impaired (but they got Christianity and civilization as compensation!)—
but recognized as “rightful occupants” with legal claim to possession. N.A.’s sovereignty w/r/t land
impaired—couldn’t alienate. Brief history of how might work: mingle, become one people…but
couldn’t do that w/ N.A. b/c war ensued. Conquest extinguished N.A. title as white sprawl began. As
N.A. moved further away, land parceled out. (Context of case: conflict between fed and states w/r/t
who would take land from N.A. Commerce Clause: gave power to federal gov’t.
Marshall says it’s too late to question validity of the doctrine. Conqueror establishes the court system,
court system can’t undo.
Locke: can gain property interest in something by contributing labor.
Eurocentric views at the time; N.A. ownership not thought to matter. Didn’t consider that labor N.A.
invested entitled them to greater property right.
Frequent example: piles of manure in street
Inside horse: property of horse owner
Dropped on street: Abandoned, belongs to no one
Person comes, rakes manure up: Becomes her property because of the labor invested
Her property for a reasonable time (if she leaves to get wheelbarrow)
B. Acquisition by Capture
Pierson v. Post
Pierson sees, kills and takes fox, knowing that Post had been hunting the fox—was about to make the kill
when Pierson traipses in and takes el zorro.
Issue: Whether Post’s pursuit of fox, with hounds and such, created a right to the fox.
To gain a property right in a wild animal, need physical possession of its body. Mortal wounding,
greatly maiming or trapping (deprive of its natural liberty) will also suffice. Court rules that Post hasn’t
taken enough action to acquire a property interest. Pierson was unsportsmanlike, and should have been
beaten up at the club, but no remedy for Post in property law.
Note: trespasser on land who poaches animal may not have right. Landowner viewed to have
constructive possession of animals on her land (p. 33)
Harold Demsetz: Toward a Theory of Property Rights
Adam Smith says we’re rational maximizers, that we’re motivated by enlightened self-interest. The
“invisible hand” will promote the good of all. Efficiency occurs when we exhaust voluntary trades;
transaction costs reduce voluntary trades. Hume talks about promoting certainty? Bentham is Mr.
Utilitarian.
1. Concept and Role of Property Rights
Help person form expectations on which she can rely in dealing with people. Owner of property rights
has “consent” to act in a certain way from members of society.
Primary function of property rights is to give incentives to internalize externalities.
Externalities are the products of decisions that are external to the decision-maker (when allocating
resources when not all costs or benefits lie in the person making the decision). Presence of externalities
encourages misallocation w/r/t society as a whole. Examples on p. 47-49. Remember also that free riders
can be a problem—no one contributes, thinking that others will, so they benefit gratis.
2. Emergence of Property Rights
Property rights emerge as a response to internalize the externalities when gains of internalizing greater
than cost. Example: Rights come into being to prevent the overhunting of game for commercial
purposes—because of the value of fur once a commercial trade had been established and the interest
each had in preventing poaching, etc—internalized benefits and costs and established property rights.
3. The Coalescence and Ownership of Property Rights
Communal Ownership—can lead to overconsumption of resources because don’t recognize costs of each
person’s usage, and because negotiating with entire community to reduce usage would be very
expensive. Tragedy of the commons comes in here.
Private Ownership will result in a private owner absorbing many of the costs associated with communal
property, but private owner has no incentive to take into account the effect of her choices on others.
(Perhaps state regulations are efforts to force private owners to absorb the costs of their poor resource
choices—try to channel the owner’s behavior).
When transaction costs are very high, the external effects of resource use are less likely to be considered,
again leading to the misallocation of resources. Property law is a system to reduce transaction costs.
Recap: Hardin (“tragedy of the commons”): with common property (like MAHR’s copy room), everyone
acting in self-interest hurts the community interest by driving inefficient use of common resources. So,
when there’s private property, everyone seeking self-interest promotes community interest because
private owners have an incentive to, and are able to, seek their self-interest through the most efficient
means (through the internalization of reduction of transaction costs). Personal note about ways that
private ownership inefficient w/r/t society as a whole (cutting down rainforest for $5)
Chapter 2: Subsequent Possession—Acquisition of Property by Find, A/P and Gift
A. Acquisition by Find
Armory v. Delamirie—The Chimney Sweep’s Son v. Renowned Jeweler
Kid finds a jewel when sweeping, takes it to the jeweler to see what it’s worth, jeweler takes
it, and then pretends it was never there. Offers a pittance for the setting sans stone.
Finder’s title is good against everyone except for true owners and prior possessors.
It’s all relative! Sweep’s right not as great as true owner but better than jeweler.
TrO> Finder1
> Finder2
> Finder3
Possession is a proxy for ownership when we don’t know who the owner is.
Recognize a finder’s rights to:
 Protect property interest of true owner and prior possessors
 Honor legitimate expectations
 Promote honesty
Bailment:
Rightful possession of goods by person who is not the owner (voluntary).
If kid had taken from inside a house and then goldsmith took it? Possession has to be lawful
only against the person who took property away. So in Anderson v. Goldberg, where Pl.
trespassed, took logs and went to defendant who took logs from Pl., Plaintiff was victorious
in court. (But only against the Def.; if landowner showed up, no). Cases with two
wrongdoers rare—between a wrongful possessor and an honest subsequent one, courts
often go with honest one. “The rule of prior possession is said to be…invoked only in
support of honest claimants.” p. 103
McAvoy v. Medina—Wallet on Floor of Shop, Honest Client, Shady Barber
Distinction made between property lost and property put somewhere and not yet picked up.
Because on table, court went with mislaid. Duty of barber to safekeep until owner returns.
Actions of both didn’t create property right. Contrary to policies above. CL: “A finder of
property acquires no rights in mislaid property, in entitled to possession of lost property
against everyone but true owner, and is entitled to keep abandoned property” See caveats
p. 112.
B. Acquisition by Adverse Possession
1.
Theory and Elements of Adverse Possession
If you maintain actual and exclusion possession of property for a period of time, and do so
openly, you “own” the property. Extinguishes old claims. Composite of case law/statute.
Policies behind A/P:

Prevent lost evidence (longer let it sit there, more difficult to prove b/c lost)

Reduce lawsuits

Promote public order (if allow wrong for long time, less benefit to correcting)

Fulfill Expectations
Even though set up recording system, still may have a/p
Two Theories:

“Sleeping Owner” Theory: If owner sits on rights for too long without acting, law will
punish you for not inspecting your property and kicking others out.

“Earning” Theory: Reward those who put property to productive use, and fulfill
expectations of those who work the land. (problem with notions of leaving land fallow).
Holmes’ thought that people become attached to things if you’ve enjoyed and/or used as
your own for a period of time.
Van Valkenurgh v. Lutz
Lutz built garage on (1920) and cultivated a garden on (1928) land he didn’t own. In 1947, VV
bought land and conflict ensued. Ruling: “To acquire title to real property by A/P not founded
on a written document, it must be shown by clear and convincing proof that for at least 15 years,
there was an actual occupation under claim of title.” Lutz loses b/c admitted that the property
was owned by the VV.
A/P by NY statute in case: 1) actual, continued occupation of premises, 2) under claim of title,
for 3) statutory period. Possession/Occupation under statute: 1) usually cultivated or improved,
or 2) protected by substantial enclosure.
Some states: must pay taxes on property to have an A/P claim.
Elements of Adverse Possession: also p.131
1. Actual entry giving exclusive possession (this triggers legal action that owner could take)
Consistent with earning theory
2. Possess openly and notoriously (behave as owner would, in way that would give landowner
notice). Looks to sleeping owner theory
3. Occupation must be adverse and under claim of right [Most important on exam, but
jurisdictions handle it differently--Adverse=asserting claim that’s inconsistent with true
owner’s rights. See p.133—
a. three approaches on the intent issue:
i. intent irrelevant—Majority. Did you use property inconsistent with rights
of true owner?
ii. good-faith standard (I thought I owned it), and
iii. aggressive trespass standard (I knew it wasn’t mine but I’m taking it)]
4. Continuous for statutory period (use as a true owner would, depending on context)
 Is there a reason to toll the statute? (Disability, owner’s due diligence [personal prop])
If establish rights as a A/P title relates back to first day when first on property. Has exact quality
of title owner held when A/P first possessed.
Color of Title and Constructive Adverse Possession
Color of Title: Claim founded on a written instrument (instrument is faulty—maybe person
transferring didn’t have power, mistake, will not notarized, etc.)
Most jurisdictions don’t require color of title to perfect title under A/P
Advantages:
 Shorter statutory period
 Lesser evidentiary standard (preponderance vs clear/convincing
 If occupy portion of land under A/P, and have absent owner, court will award
constructive title to entire parcel
Mannilo v. Gorski—15” of A/P
Gorski’s steps/sidewalk go onto Mannilo’s property by a foot; he claims title by A/P.
Court finds for Mannilo under the “Connecticut Doctrine”
Presumption of notice/knowledge where possession of land is clear (open and notorious)—
provides constructive notice. But, where there is only a minor encroachment, there’s no
presumption of notice—need actual knowledge. Heard this was minority view.
2.
Mechanics of Adverse Possession
Howard v. Kunto—see Byzantine diagram p. 144
Everyone’s deeds are for the lot next to the one they’ve been living on.
“Technical requirement of privity shouldn’t be used to upset long periods of occupancy of those
who in good faith received an erroneous deed.”
Lessons here:

If property in question is a summer house, occupying for summers only during statutory
period is fine—need to behave as owner would.

If your deed is faulty but you got it in good faith, parties in privity could “tack on” their
periods of possession. Here, the statutory requirement was met. But see note p.147.
Tacking—work on problems pp. 149
Improvements and Encroachments

CL: harsh—buildings and fixtures became property of landowner. Some jurisdictions
require landowner to either pay for improvements or to convey land at market value to
improver.

If encroachment was result of an innocent mistake, courts look at relative hardships to
parties.

In encroachment is willful or intentional, most will issue injunction requiring removal of
encroachment.
Disabilities
In all states, the time for A/P is extended is the owner has a disability. Por ejemplo:
“An action to recover title…shall be brought within 21 years after cause accrues, but if person
entitled to bring action, at the time it accrues, is within the age of minority, of unsound mind, or
imprisoned, such person [or anyone claiming from, by or under such person] (after the
expiration of 21 years), may bring such action within 10 years after disability is removed.

Disability is immaterial unless it exists when c/o/a accrues.
Adverse Possession Against the Government p. 152
3.
Adverse Possession of Chattels
O’Keefe v. Sullivan
O’Keefe claimed ownership of painting owned by Sullivan. Court followed
Discovery rule: “Cause of action doesn’t accrue until injured party discovers or through
reasonable diligence should have discovered.” Didn’t go with adverse possession theory
because difficulty with personal property; open doesn’t necessarily mean notorious (sufficient to
give notice). If stolen, no title. May have fraudulent title, but if BFP okay (UCC).
Other methods: NY—SOL starts when demand return of property and is refused.
Europe: BFP can get good title if purchased on open market.
C. Acquisition by Gift
Two types: inter vivos and causa mortis (expecting death—if she lives, gift revoked).
Elements (clear and convincing evidence)
a. Intent to make a current gift (in the present)—this is the biggie, subj. state of mind
b. Delivery
c. Acceptance of Gift—with a gift of value, will often presume acceptance
Types of delivery—Law wants you to feel the “wrench” of delivery
Physical (actual) Delivery: donor hands over object. If can be, should be.
Constructive Delivery: donor gives something that provides access to or control over gift
itself. The proverbial car keys. This is usually applicable where the gift is too large or
unwieldy to hand over itself.
Symbolic Delivery: the donor gives something that stands for the gift, rather than the gift
itself. Picture of item, por ejemplo. DOESN’T WORK IF CAN HAND ITEM OVER.
Newman v. Bost—A dying man gave his housekeeper/girlfriend the key to a bureau, and told her
that he wanted her to have everything in the house. Court ruled that where article can be given, it
must be. Because he could have easily physically given her the insurance policy, he didn’t intend
to give her the bureau’s contents. She got anything that could be locked or unlocked with the
key, as well as inter vivos gifts of her bedroom furniture and the piano. Intention and delivery
are questions for the jury. (Intention may be inferred from conduct). Court concerned about the
SOF being subverted. Said no symbolic delivery allowed.
Gruen v. Gruen—Klimt painting from father to son; father gave painting to son but retained a life
estate for himself. Stepmother won’t hand it over. Inter vivos gift.
As long as the evidence establishes an intent to make a present and irrevocable transfer of title or
right of ownership, there is a present transfer of some interest, and the gift is effective
immediately. Didn’t require that the dad deliver painting because that would be inconsistent
with his intent to hold it as a life tenant.
Chapters 3-4:
Estates in Land and Future Interests
See separate outline
Chapter 5: Co-Ownership and Marital Interests
A. Common Law Concurrent Interests
1.
Types, Characteristics, and Creation
Tenants in Common—Separate undivided interest that has no survivorship right. Can be
conveyed by will or deed (shares are alienable, devisable, inheritable). Presumption in favor of
this interest. If unsure about whether it’s a JT, TIC.
O  A and B and heirs. A, B = TIC
AC
C,B = TIC
B dies, leaving H as heir C, H = TIC
Joint Tenancy—Right of Survivorship. Considered, together, a single owner. When one dies,
interest vanishes and goes to other joint tenants.
Four Unities of Joint Tenancy (TTIP)
Time—must acquire interest at same time
Title—must acquire title by same document, or by jointly a/p
Identical Interests—equal undivided shares, and same time length of interest
(courts ignoring this more and more)
Possession—each must have right to possess the whole
If a joint tenancy is severed, a TIC is created. Partition in kind, partition by sale.
Can convert JT to TIC without other tenants’ knowledge or okay, by conveying to a third party
or to yourself (the disgruntled wife cutting the husband out). JT good for avoiding probate
because no interest passes on death. (Cannot pass anything on by will). Consequences for
creditors p.325
Tenancy by the Entirety—between spouses. Same as joint tenancies, but adds that interest is
owned by the marriage. Can only be destroyed by divorce (maybe by agreement). Not too
prevalent.
2.
Severance of Joint Tenancies
Riddle v. Harmon—Bitter Wife Icing Out Hubby
Mrs. Riddle conveyed her share in the joint tenancy with her husband to herself, creating a TIC.
Previously, needed a “strawman”—the whole twig ceremony would be impossible. But since
the livery of seisin has gone the way of the dinosaurs, court found that one party could destroy a
joint tenancy unilaterally without other’s knowledge. Severing joint tenancy destroys right of
survivorship. Doesn’t create new power—just allows tenant to do what they could always do
easier.
Harms v. Sprague—Lien Theory or Title Theory?
Brothers bought land as joint tenants. One brother signed a note for friend Sprague, with
interest in land as collateral. Co-signing brother died, and the question is, what happens to the
mortgage? Surviving brother says interest died with him, it’s all mine. Sprague says that
mortgage survived and that he is now owner of the ½ interest.
Two approaches: Title Theory (mortgage severs JT, because it is a conveyance of title; transfers
your interest) and Lien Theory (mortgage is lien, not conveyance--transfer of interest only, JT
intact). Court says: IL is Lien State; when brother died, his interest in the land died too. So the
mortgage, based on his interest in the land, is null.
3.
Joint Tenancy Bank Accounts
JT bank accounts used by different people for different reasons. Need to determine depositor’s
intent in order to figure out what happens post mortem.

Intended to make present gift of half the money—true joint tenancy

Intended to give whatever was in there when depositor died—payable on death account

Intended to give other power to draw on account to pay bills, like a power of attorney
account—Convenience account.
Majority of jurisdictions say that surviving joint tenant takes the sum remaining unless there is
clear and convincing evidence that a convenience account was intended. During the lifetime of
the parties, the presumption is that the joint account belongs to parties in proportion to each’s
net contribution. Surviviorship right agreement deals with the bank’s liability, not the
ownership among tenants.
4.
Relations among Concurrent Owners
Each co-tenant has unrestricted right; has no right to restrict other tenant. Problems can arise.
Partition
Equitable action to terminate a cotenancy. Often partition voluntarily. If can’t agree, go to court.
Delfino v. Valencis
One tenant wanted to develop land, the other had a garbage hauling business on it. T.C.
ordered partition by sale, but defendant ran a biz on her portion.
Jurisdiction favored partition in kind. Will partition by sale if:
1. Not practicable to split (physical attributes of land make it impracticable/inequitable)
2. Interests of owners are better promoted by sale
Modern practice is to partition by sale.
5.
Sharing the Benefits and Burdens of Co-Ownership
Spiller v. Mackereth
Co-tenants/Tenants in common of building; when their tenant moved out. Spiller moved in,
used for own. Mackareth demanded that Spiller vacate or pay half. Spiller successful
because did not deny co-tenant relationship—changed locks to protect his stuff, but not to
“oust” Mackareth (she should have asked for key).
But, Anne, what is ouster?
Legal conclusion, not fact
Beginning SOL for A/P
Liability of an occupying cotenant for rent to other
Intent plays role. Don’t have to claim absolute ownership, but if refuse demand of other
cotenants to use and enjoy property.
A/P not applicable because Spiller recognizes Mackereth’s claim. So no A/P. But, attorney’s
attorney’s letter doesn’t satisfy. Doesn’t say “you’ve denied me equal access to property – I
want half.” Says only “pay rent;” fails to satisfy p.f. case. To be liable for rent, must deny
access/right to enter.
Swartzbaugh v. Sampson—Boxing pavilion in an orange grove
Action to cancel two leases by Mr. S. made with Sampson for a boxing pavilion. Mr. S. dies,
Mrs. S. wants Sampson off because she’s against boxing, gambling and all the sin that goes
with it. Court says, no, have to honor lease. Lessee answers to lessor only. “One joint
tenant may make a lease of the joint property, but this will bind only his share of it.”
Remedies? If she wants partition, she will lose right of survivorship. Mrs. S. can ask for
accounting—could get ½ of lease money. She could force ouster by taking choir group to
pavilion—if he kicks her out, she has c/o/a.
Chapter 6: Tradition, Tension and Change in Landlord-Tenant Law
A. Leasehold Estates (Tenancies)
1.
Term of Years—estate for a fixed period of time. Whether the period is for two days or two years,
all called term of years. At CL, no limit to number of years; some American jurisdictions have
statutory limits. No notice of termination is necessary.
2.
Periodic Tenancy—lease for fixed duration that continues in succeeding periods until landlord or
tenant gives notice of termination. If notice is not given, automatically extended for another
period. At CL, require half-year notice for termination of one-year lease and period equal to
lease period but less than 6 months for leases of less than one year.
Death of landlord has no effect on term of years or periodic tenancy
3.
Tenancy at Will—No fixed period that endures so long as both landlord and tenant want. If
tenancy at will, it is terminable at will of either party. Unilateral power to terminate can be
added on to a term of years or periodic tenancy. Ends at death of either party. Requires
notice—modern statutes say 30 days.
Garner v. Gerrish—The Lease Said I Could Terminate on the Date of My Choice
Court found that a lease that allowed the tenant to terminate on a date of his choosing
created a determinable life tenancy. Consistent with Restatement §1.6. Will terminate at
tenant’s will or upon his death. Followed express terms. More K, less conveyance. Notes
p. 424
4.
Tenancy at Sufferage: Holdovers. Arises when a tenant remains in possession after termination of
the tenancy. At CL, landlord could evict or consent to creation of new tenancy.
Crechales & Polles, Inc. v. Smith—It’s a Long Story, but the Upshot is…
When a tenant stays beyond the length of the lease, the landlord can evict, or agree to new
tenancy on same or different terms. Court says “once a landlord elects to treat a tenant as a
trespasser and refuses to extend the lease on a month-to-month basis, but fails to pursue his
remedy of ejecting the tenant, and accepts monthly checks for rent due, he in effect agrees to
an extension of the lease on a month-to-month basis.
B. The Lease
Historically, leases were conveyance. Now, seeing them more as contract.
Lease gives rise to landlord-tenant relationship. Both contract (promises from both parties)
AND conveyance. A lease transfers possessory interest in land, so it is a conveyance that creates
property rights. Promises are in there too—might be mutual, might not. With SOF, leases more
than one year must be in writing. License: allow someone to do something on property that
would otherwise be trespass. Revocable. Leases are not.
C. Delivery of Possession
Hannan v. Dusch
Hannan argues that landlord has affirmative duty to deliver legal right of possession, also to
provide for quiet possession (in absence of express language to this effect.)
Court says that landlord has primary duty to deliver legal but not actual possession. Ethical
duty, maybe, but not legal. New tenant’s remedy is against the wrongdoer, and not the
landlord.
English Rule—Implies a covenant that requires delivery of actual possession. Landlord
in best position to know status of property, can negotiate with earlier tenants. Landlord is
able to evict holdover. But also makes landlord responsible for unlawful acts of third party.
American—Lessee has legal right to property, but lessor under no obligation. Legal
possession gives new tenant greater title—may bring trespass action against trespasser.
Tenant can contract for actual delivery.
D. Subleases and Assignments—Also known as Crazy Diagramming
Ernst v. Conditt—Race Track and Confusing Graphs
Landlord leased to tenant, who then either subleased or assigned his interest. Conflict over
determination. Express covenant in original lease means nothing. Sublessor liable, but
assignor is not. Legal responsibilities in each.
Difference between sublease and assignment
CL looked at time, modern trend looks at parties’ intent:
 Assignment—Entire interest is conveyed
 Sublease—Something less than the entirety, reversion
Different Types of Privity: only need one for liability
 Privity of Contract: Contractual relationship with another
 Privity of Estate: Land relationship with another
Initial Lease
contract
L ========T
estate
Sublease
Privity of Contract
L ==========T
(implied K?)
T2
Privity of Estate
If in state that recognizes third-party beneficiary, contract
action. If not, can evict. Equitable lien of T’s property
(until T gets $$ from T2). Terminate lease with T. Under
sublease, landlord has fewer remedies against T2.
Assignment
L
T
Privity of Contract
If assignment, landlord has remedy against both.
T2
Privity of Estate
Kendall v. Ernest Pestana—Crazy Graphs. Continued
Provision in lease that landlord must give permission for assignment to be valid. Landlord
argues that he can deny arbitrarily (wants more $$). Tenant argues must be commercially
reasonable. Court agrees with Tenant—finds Implied Covenant of Good Faith.
Commercially reasonable means money.
There’s a risk allocation calculus here. In signing a lease, tenant bears the risk that rental
prices will decrease; landlord should be able to capture higher rent when property transfers.
If lease says lessor must give permission, will interpret to mean commercially reasonable.
Why?

Law favors freedom of alienability

Law favors good faith (bad faith extortion to be avoided)

Where allow restraint on alienability, must be reasonable
When evaluating whether it’s reasonable, don’t look at landlord’s financial situation as a
whole. Rule is to protect landlord’s operation of this building, not her general economic
well-being.
E. Tenant Who Defaults
1.
Tenant in Possession
Berg v. Wiley—The Landlord’s Hanging from an Awning in Osseo
Restaurant in Osseo where landlord gave lessor two weeks to meet health regs; date of
expiration of two weeks, lessor dismissed employees. That night, landlord was hanging
from the awning and peering into premises. Thought he saw lessor pulling down paneling.
Called the cops.

Court said that if a tenant is in breach, a landlord may retake property (called self-help),
provided that 1) she is legally entitled (tenant has held over or breaches a lease
containing a reentry clause, and 2) her action’s are peaceful.

Court ruled that because speedy judicial proceedings are available to enforce a
landlord’s statutory remedy against a tenant, “the only lawful means to dispossess a
tenant who has not abandoned nor voluntarily surrendered, but who claims possession
adversely to a landlord’s claim of breach is by resort to the judicial process.”

Prohibition of self-help is one of law—cannot contract around
Summary Proceedings (Forcible Entry and Retainer)
Previously, landlord had to bring a lengthy ejectment action against a defaulting tenant.
Summary proceedings are a rapid way for landlord to recover possession after the
termination of a tenancy—usually takes about three days. Courts don’t like self-help; cops
don’t either. Summary proceedings help to reduce need for landlords to resort to SH.
2.
Tenant Who Has Abandoned Possession
Sommer v. Kridel—His Marriage Falls Apart and the Landlord’s No Help
Landlord let 15 months go by and accrued $5K in rent damages before bringing action,
when could have rented to person interested in that specific apartment.
A landlord has a duty to mitigate damages by making a reasonable effort to re-let a property
wrongfully vacated by tenant. At CL, no duty to mitigate—because the lease was a
conveyance, the landlord was not allowed to re-let. Court here adopting a contract
approach. Implied duties are inconsistent with old property laws, but are justified as a
matter of fairness.
What is a reasonable effort?—What would a Reasonable Person in Same Do?
Depends on property. Reincorporate breached unit back into fold. Don’t have to try to lease
it first. Shuffle property in, making no effort to distinguish it. If prospective tenant picks it,
that’s fine. Treat breached unit the same as others w/r/t availability, advertising. Tenant
liable for period where no one rented + $$ failed to recover. BOP on landlord to show that
efforts were reasonable. Tenant may rebut evidence by showing that suitable tenants were
not allowed.
Note: Abandonment—where reasonable person would believe not coming back. Where
vacate without justification, no present intent to return, defaults on payment.
F.
Duties, Rights and Remedies (Especially Regarding the Condition of the Premises)
Bob Dauffenbach intro: Leases can result in a “moral hazard,” which describes the tendency of the
landlord to neglect repairs once the property is leased, and a tendency of the tenant to neglect
maintenance toward the end of the run, because they’re moving out soon. LL/Tenant relationship
promotes waste. No incentive to internalize externalities.
1.
Landlord’s Duties: Tenant’s Rights and Remedies
Under the mean CL, tenant took a property “as is,” caveat lessee.
a.
Quiet Enjoyment and Constructive Eviction—implied in all resident/comm’l
Reste Realty Corp v. Cooper—Minnesota Advocates’-Style Office on the 12th Floor
Defendant rented office space in basement that would flood whenever it rained. Defendant
vacated; plaintiff brought action to recover rent. Condition was so intolerable as to
constitute constructive eviction. Duty to disclose latent defects to lessee. Cooper signed
second lease because landlord’s agent promised to fix problem. Pl argued: 1) accepted
premises “as is,” 2) didn’t interfere permanently, and that 3) agreement to pay rent and
agreement to grade were independent covenants. Here, court said they were mutually
dependent.
Leases have implied covenant of quiet enjoyment. Here, I think it was express because there
was a promise to repair the grading. Rule is this: Where there is a covenant of quiet
enjoyment, either express or implied, and it is breached substantially by the landlord, which
renders the premises substantially unsuitable for the purpose for which they are leased, or
which seriously interferes with the beneficial enjoyment of the premises, is a breach of the
covenant of quiet enjoyment, and constitutes a constructive eviction of the tenant. BUT!!!
Tenant’s right to claim constructive eviction will be lost if don’t notify landlord, or vacate
premises within reasonable amount of time (depending on circumstances). Tenant’s
dilemma is that if leave, court may find no breach of C.Q.E.
Examples: failure to provide heat, leaving the main sewage pipe clogged with sewage, rents
to family knowing that “lewd” activities go on in other areas.
At CL, landlord had to physically oust tenant to constitute a breach of covenant of quiet
enjoyment. But, when extend C.Q.E. to include actual as well as beneficial uses, can include
omissions by LL that make the property unlivable or unusable.

Landlord must disclose latent defect she knows of or should know of

Maintain common areas

Make repairs in a workmanlike manner (if shoddy, breach)

Can’t lie about property

Must abate immoral conduct and nuisances
Elements of a breach of Covenant of Quiet Enjoyment

Someone acting on behalf of landlord

Commits act or omission

Making property substantially unsuitable for purposes for which it is leased, or
substantially interferes with beneficial enjoyment of property.


Defect must be permanent (Tenant must show)
Tenant must leave in reasonable amount of time (if actual, not partial).
All founded on contract idea that a substantial breach of a material covenant amounts to a
failure of consideration, which supports nonperformance by other party.
Can have full or partial (take over part of property-actual, if done, all responsibility
vanishes—could stay there w/o paying for remainder) eviction, actual or constructive.
Landlord cannot apportion the property. Can have actual partial eviction that results in
constructive eviction. Tenant can stay in property and sue for damages, or if substantial
breach, tenant can leave through constructive eviction—no future rent and can recover
damages.
b. Implied Warranty of Habitability
Wrong for this breach is similar to C.Q.E. I.W.H. only in some residential areas. Can get
greater damages with I.W.H., because can sue for discomfort. Don’t require tenant to leave
(as in total constructive eviction). If authorized to withhold rent by statute, OK. If not,
escrow.
Hilder v. St. Peter
Oral lease. No lock on property, broken window, clogged toilet, broken sewage pipe,
plaster falling. The place is a dump.
At old CL, tenant could get full abatement only if abandoned property. Covenants were
independent. Made sense when leases were about land not dwellings, tenants would be
able to make repairs. Now, the landlord and tenant are on unequal footing w/r/t bargaining
power, and the landlord is in a better position to discover and care for property. Cannot
contract around; can’t have tenancy at will.
Court adopts implied warranty of habitability. Covers at will and periodic tenancies, covers
patent and latent defects. Cannot contract around.
Must provide safe, sanitary housing. Want substantial compliance with housing code.
Substantial violation = p.f. evidence of breach. Tenant has to notify landlord and allow
reasonable time for repair.
Damages: Difference in value between warrantied and actual condition. Can also get
consequential damages for discomfort. If no one who could afford something else couldn’t
live there, property effectively worthless.
Before find breach: defect must be substantial, LL must have notice, reasonable time to fix.
Chapter 7: The Land Transaction Lecture
A. Intro to Process
1. Consult a real estate agent
2. Draft the contract of sale
3. Credit and Title investigation

Establish credit of the buyer and establish proof of title.

Chain of title search; looks for every link in the chain of title. Usually limit by statute to 4050 years. Creates a statutory limitation on defective title. Must challenge within that time
frame.

Abstracting and Insurance Portion: Where attorney provides copy of public records and reindexes. Title insurance; if find defect in title, still get paid. Protects bank, not buyer. If
want own protection, must buy own.

Inspect property, get it inspected. Most pay for only minimum. Should go all out on
inspections—electrical, structural. If there are these problems, can negotiate price.
4. Closing
Execute documents and deliver to each other.
5. Filing
To county recorder, who maintains land records. Usually lender’s atty does this. (b/c if bankruptcy,
creditors get paid in the order of the mortgage. If don’t file, lose spot in order for payment—they’ve
got the incentive).
B. The Contract of Sale
1.
Statute of Frauds
Makes certain deceitful claims unenforceable. As a matter of evidence, require in writing saying
which property, how much, and signature. Need description of property (lot#, on what page of
what plat book or metes and bounds description). Signed by both parties.
Exception: part performance. (buyer takes possession and pays); estoppel (prevent unconscionable
injury.) P.562
2.
Marketable title
Defined: “Title not subject to such reasonable doubt as would create a just apprehension of its
validity in the mind of a reasonable, intelligent and prudent person, one which such persons, guided
by competent legal advice, would be willing to take and for which they would be willing to pay fair
value.”
Doctrine of equitable conversion: If there is a specifically enforceable contract for the sale of land,
equity determines what to do.
3.
Duty to Disclose Defects
Stambovsky v. Ackley—House from the Amityville Horror
Reputation of the house goes to essence of bargain between the parties. Court granted equitable
rescission of the contract. Real estate broker under no duty to disclose to potential buyer the ghost
situation, but could not be ascertained upon reasonable inspection.
Where condition materially impairs the value of the contract and is within the knowledge of the seller or
unlikely to be discovered by a prudent purchaser exercising due care w/r/t transaction, nondisclosure
constitutes basis of rescission in equity.
C. The Deed
Essential Elements
Name of grantor, grantee, words of grant
Description of property
Signature of grantor (some jurisdictions require notarization)
Note: Grantor can only sell/give away what she has.
Three Types of Deeds
General Warranty Deed: Grantor warrants against all defects of title, whether they arose before or after
the deed was granted.
Special Warranty Deed: Grantor warrants against title defects arising from something the grantor did.
Doesn’t warranty against acts of others.
Quit Claim Deed: Owner quits claims to property and gives to grantee, but gives no warranty as to the
title. These should arouse suspicion.
Run
with
land
Six Covenants

Grantor warrants she owns the estate she’s conveying (seisin)

Grantor warrants she has the right to convey

Covenant against encumbrances: no unlisted encumbrances on the property, such as easements,
liens, mortgages, and covenants

Covenant of general warranty: defend all lawful claims and compensate buyer

Covenant of quiet enjoyment: grantee will be undisturbed in possession by those with superior
title.

Covenant of further assurances—grantor will execute anything necessary for the grantee to keep
the land
D. Mortgage
Note: Promise to pay, giving your personal assurance.
Mortgage: Ensures the bank that if you fail in personal obligations, can seize your house.
Foreclosure: Sell House. Deficiency judgment (see notes 4/10/03)—government doesn’t like because
lending is such an advanced “science” at this point.
Chapter 8: Title Assurance
A. The Recording System
1.
Intro
County recorder maintains all records. Someone is not a BFP if could have checked records.
Anything land-related can be recorded: mortgage, lien, lease, judgment affecting owner of
property, notice of pending action.
2.
The Indexes
Two types:
Tract: based on parcel or plat number. Used more in Western U.S.; avoids some of the
problems with a grantor-grantee index.
Grantor-Grantee: Lists last names of grantor, grantee. Name spellings matter! Obligation of
title-searcher to check other spellings (Cain, Kane, Koehn, Caine, etc.). Begin search when actual
owner of property, end when no longer record owner.
GRANTEE
GRANTOR
D owns
1902: O owns
D  C 1977
1915: O  A
C  B 1952
1934: A  B
B  A 1939 R
1939: B records*
A  O 1915
1952: B  C
1977: C  D
*Because B records late, search B from 1934, and A through 1939
A could have transferred property between 1915-1939; B could have transferred between
1934-1939. STUDY EXAMPLES HE PROVIDED HERE
Luthi v. Evans—Mother Hubbard had all her oil and gas interests in the shoe
1971: Owens assigns “all” oil and gas interests to Tours (7 of 8 properties specifically
mentioned). “Mother Hubbard” clause gives away all of property in a particular area but
doesn’t specify. Seven properties were specifically described, so that gives constructive
notice to others of ownership.
1975: Owen assigns interest in a well to Burris. Burris looks for records, doesn’t find any
problems. Would have needed to search every oil and gas lease in Coffey County. He
searched only for the particular property. Burdensome for him to look—grantee was least
cost avoider.
Tours could have filed an affidavit to correct—one related to each individual properties.
Tours could have protected property interest. They had best knowledge and most incentive.
 Issue: Does Mother Hubbard clause give constructive notice to others of properties not
specifically mentioned? Error in public notice does not give constructive notice to
subsequent purchasers.
Owens gave away same property twice. Tours has a cause of action against her. Whether
jurisdiction is race, notice, race-notice. Common-law states that a deed is always good
against the grantor. Tours can get whatever money Owens received from sale of second
property. Burris wins. As a result, Burris gets property.
Types of Notice:
Actual Notice—
Constructive notice—knowledge implied in law because appears in public record.
Inquiry notice—have facts that would make a reasonable person inquire further, and inquiry
notice is information you’d have if you has inquired further. (If see someone there, ask how
long they’ve been there—check adverse possession statute—and what right they have)
Types of Recording Act Statutes
Race—Protects those who record first, no matter their intent or status as BFP. Notice isn’t
part of the equation. These statutes are pretty rare. Incentive for everyone to record—
results in complete record. But also provides incentive for bad-faith folks.
Notice—Protects SBPV who has no notice (actual, constructive, or inquiry), whether she
records her deed or not. Provides the least incentive to record, has the least complete record,
and you have to deal with parol evidence to see what she knew.
Race-Notice—tries to capture best aspects and eliminate worst aspects of both types. SBPV is
protected against all prior unrecorded deeds if she shows: 1) no notice, and 2) she recorded
first.
STATUTE EXAMPLES FROM BOOK
When classifying statutes, ask what must the subsequent claimant do to qualify for
protection under the recording statute.
If have multiple people, do chart, two people at a time. With each, ask who was the
subsequent purchaser.
Other info: Index is not essential part of record, documents are. Person who filed
documents properly isn’t obligated to check books all the time to make sure interest is still
protected. If county recorder makes mistake, your proper filing gives constructive notice,
even though subsequent purchaser would have never found. (If this was situation in Luthi,
Burris could sue Owens. Can’t sue recorder because of government immunity. A few
jurisdictions have allowed claims to go forward, but limit what Pl can get.)
Government Survey: Metes and bounds survey as opposed to plat survey. Plat: Divided
land into quadrants in Northwestern territory. Start with 1 square mile sections, break
down from there and distribute.
Metes and bounds descriptions done by description of landmarks. Threads of rivers, big
trees, rocks, etc. If tree gone, would need to get survey team to determine.
Remember from Mannilo, that for minor intrusions, need actual notice.
Orr v. Byers—Eliot, Elliot, Eliott, Elliot
Misspelling of name in record doesn’t provide notice to subsequent purchasers; because
person filing is least cost avoider, must record properly to be protected against SBPV.
Idem sonans: though a person’s name has been misspelled, if pronunciation is same,
considered to be the same. Rule made sense when people were illiterate.
Rule: If misspelling material and someone effectively relied on misspelling (was harmed),
won’t apply rule of idem sonans. Material: where name matters. Because if you misspell
name when really significant, as it is here, you won’t be protected by idem sonans.
Some jurisdictions still do apply doctrine: would require that potential buyer must check for
all possible names. Limitation: required to check only those names that start with the same
letter (ex. Kaine, Kane, Koehn). What if name is Robert Lee Cain? Must check Robert L.
Cain, R.L., R. Lee, Bobby Lee, Bob Cain. Less the case now that social security
administration. Especially with women, need to know if have ever changed name.
3.
Types of Recording Acts
Recording acts protect those who make interest known by putting it into the public record.
Subsequent purchaser will be protected if purchases in good faith and records. In Race, RaceNotice – Explicit; in Notice – Implicit
Purpose:
Establish a public record
Maintain a secure location for the records
Protect BFP of land from earlier unrecorded interests
Mitigate CL rule of first in time, first in rights
Messersmith v. Smith
Deed may be physically recorded, but legally, shouldn’t be there—if it doesn’t meet
requirements. Here, incorrect notarization—2nd deed can’t borrow notarization from 1st.
Seale: no challenge to his BFPV status; hinges on race portion of statute. Although Seale
recorded first, based on deed that’s illegal. (if it was a notice j, Seale would have won)
Every link in chain must be duly recorded.
4.
Chain of Title Problems
Recorded sequence of transactions. God  Current Claimant
(Marketable Title Act usually limits to 40 years)
Wild Deed: It pops up out of nowhere!
O  A (NR)
A  B (R)
O  C (R)
Here, there’s no indication that A ever had power to convey.
Board of Education of Minneapolis v. Hughes
Because it was a wild deed: record of a deed from a stranger to the title is not constructive
notice to a SBFP of a prior conveyance. Can punish those who record too early—must make
sure every link is recorded.
Guillette v. Daly Dry Wall
In a planned development, a purchaser must examine the deeds of other properties in the
development to determine if there are any covenants or restrictions on her lot (meaning
restrictions that cover entire development, her spot included) that are not listed on the deed.
5.
Persons Protected by the Recording System
Consideration limits enforcement; question is one of fairness
Title Assurance tells us which of two innocents gets the property, and who has to sue the
double-dealer. Consideration is injected because of the difficulty in choosing between two
innocents—choose the one who gave something up.
Donees, gift recipients not protected. If says “for valuable consideration of $1,” presume that
person gave value.
Daniels v. Anderson
Daniels bought two lots and right of first refusal on third, adjacent lot. Owner of 3rd sold to
Zografos—deed made no mention of 1st refusal right. Zografos learns half-way through.
Court said that Zografos was not a SBPV, because had not yet received title because hadn’t
completed purchase (hadn’t yet given full consideration). Must sell property to Daniels for
purchase price + tax.
3 options court can pursue
1. Give the land to the holder of the interest, and give the buyer payments made.
2. Allow the buyer to complete the purchase, paying the remaining amount to the interest
holder.
3. Give the buyer a pro rata interest in the land proportional to the amount paid.
Lewis v. Superior Court—Paid $2M in cash for house; Fontana loses out
Court said lis pendens action isn’t filed until indexed (contrary to previous class discussion
and what most jurisdictions say). Lewises filed first. Helton doesn’t think that court needed
to pursue consideration discussion. Lewises should have been able to rely on their first
search.
6.
Inquiry Notice
Harper v. Paradise
Where there is a recital to quitclaim that mentions a lost deed, that recital puts everyone on
notice that there may be someone with better title. With this notice, a subsequent purchaser
in a race-notice jurisdiction does not win, even if he records first. Recitals are peligroso!!
Every subsequent purchaser has to inquire.
Sufficient facts that would make reasonable person inquire further.
Inquiry Notice and Accuracy of Response: If fail to ask questions, assume that you would have
received right answer. If do inquire, and get wrong answer, you’ll be protected.
Waldorff Insurance and Bonding v. Eglin National Bank
Where a prior purchaser occupies the premises, a subsequent purchaser’s got inquiry notice.
Someone has interest in property and physcically present. Put subsequent purchasers on
inquiry notice. When inspect the premises, ask questions. Costs money and least cost
avoider is prior purchaser who could have recorded. Don’t require Waldorff to record until
has deed/title—if give before title transfers, and something goes wrong, there’s a cloud on
title. Would need judicial action to get it rid of cloud. Consideration addressed: 1)
irrelevant that didn’t give consideration because he’s prior purchaser. 2) Two relationships.
Between Waldorff and Choctaw—gave up legal right to pursue dinero. Consideration.
Waldorff and IRS—if he wrote off wrongly, doesn’t matter.
If parents give me their beach house, I record. They convey to someone else. In race, I win.
In notice jurisdiction, they’ve got notice because I recorded. In race-notice, I still win
because they had notice and because they lost the race. Consideration only matters if you’re
a subsequent puchaser!!
7.
Marketable Title Acts
Limits how far back have to examine for clear title.
Oklahoma started at 40 years, but changed so now it’s 30 years. If search computer, don’t need
to search physical indices.
Three mechanisms for controlling land use
Nuisance and Trespass—Judicially managed; earliest form.
Zoning and Eminent Domain—Legislative. Includes actual occupation of your property
but also constructive occupation (regulatory takings)
Servitudes—Private Land-Use Controls. Easements and Covenants
Involve two parcels of land and an agreement to benefit value of both
Until Shelley v. Kraemer, could include racist promises. (Because of racism, people would
paymore if they could be sure they would need to live
Ususally, dominant and subservient parcels
Benefit and burden both you and successive owners
Chapter 10: Private Land-Use Controls: The Law of Servitudes
A. Easements
1.
History
Easement-Profit—right to enter someone’s land and remove something
Negative Covenant
Affirmative Easement—Right to do something on someone’s property
License
Easement
Covenant
2.
Creation of Easements
Four mechanisms

Express—Because it is an interest in land, must be in accordance with SOF.

Implied—Look at intent

Easement by Prescription—Obtained exactly how obtained through A/P (easement obtained
through A/P) Actual entry, open and notorious, continuous for statutory period, Usually
time duration is same

Easement by Estoppel. One creates a voluntary servitude, and the other detrimentally relies
on it.
Willard v. Church of Christ, Scientist
Genevieve owns 19, 20; 20 used for church parking
G  Peterson Lot 19
P  Willard Lots 19, 20
G  P (20) Subject to Easement
P  W Deed doesn’t mention easement, but P mentions. Not BFPV.
Trial court said void—cannot give to other, but reserve interest.
Language: Easement Apurrtenant in FSD. Condition that will be easement as long property
used for church purposes. Easement to run with the land. One ambiguity: does church =
congregation or building?
Affects value of land.
Lease, License, or Easement—How to tell? Factors
1.
2.
3.
4.
5.
What uses were granted?
a) The more specific and limited, the more likely it is an easement
How specific is the description of the location?
a) If exclusive use off space, likely to be easement.
Leases and licenses both involve regular payments, whereas an easement is usually a
one-time payment.
What is the duration?
a) Limited duration indicates a lease
b) Unlimited duration indicates an easement—irrevocable
c) If it is revocable, it is not an easement, it is probably a license
What kind of legal actions may be taken? Only a tenant may bring possessory actions,
like eviction. Easement holder can bring an action against landowner.
License: Like an easement, but entirely revocable. Voluntary servitude.
Lease: Possessory for period
A. Private land use controls
1. Landowners often want to make agreements with their neighbors respecting the use of one or
B.
both parcels of land. These are interests one person has in another’s land. Two main categories:
a. Easements/Profits: Rights arising from a grant of a right by one landowner to another
b. Covenants/Servitudes: Rights arising from a promise respecting the use of land by one
landowner to another
Easements
1. Irrevocable right to use another person’s land for a specific purpose.
2. Land benefited by easement = dominant estate; land burdened = servient estate
3. Types of Easements
a. Affirmative Easement: owner of an affirmative easement has the right to go onto the land
of another (servient land) and do something
b. Negative Easement: owner of a negative easement can prevent the owner of the servient
land from doing something on it.
c. Easement Appurtenant:
i. Affects two parcels, dominant and servient. But benefits owner in use of property.
ii. Runs with land, unless contract otherwise
d. Easement in Gross: Also called Personal Easement. When an easement does not benefit its
owner in the use and enjoyment of his land but gives him the right to use the servient land.
i. There may be no dominant parcel. (if D walks though X’s land to get to something
else, benefits D as a person)
ii. Terminates with death of owner.
Other Types of Controls
Profit: Right to take something off another person’s land that is part of the land or a product of the
land.
License: Permission to go upon the land belonging to the licensor which can be created orally and
revocable at will EXCEPT:
Estoppel- If the licensee has constructed substantial improvements on either the licensor’s land
or the licensee’s land, relying on a license, the theory is that it would be unfair to the licensee to
permit revocation after he spends his money in reliance (easement w/o writing)
Holbrook v. Taylor
Started as license. One saying can revoke. Other party saying they got easement by prescription or by
estoppel. Estoppel doesn’t create rights in the first instance, but stops someone else from exercising their
rights. Party is estopped from exercising right of revocation. If have license that cannot be revokes, it’s
an easement.
Easement by Prescription: Like A/P. Elements:
Peaceable, open continuous adverse to owner with knowledge and acquiescence of owner for
statutory period.
Difference b/tw A/P—peaceful and seems to require actual knowledge. Instead of possessing full
rights that owner had, only taking right to use. They are prescribed from preventing your use.
No easement by prescription here, because owner gave permission. If have irrevocable license =
easement.
Only argument left is estoppel.
Detrimentally relied on permission (they undertook construction/renovation, used for every purpose
as entryway for home, owner watched while they expended $$)
Estoppel Elements
1. Voluntary servitude
2. Detrimentally reliance (almost always improvement to property)
-hard to show reliance without improvement to property
Van Sandt v. Royster
Bailey owned three lots; city constructed sewer line, and Bailey constructed lateral sever to connect to
city. Problem—can’t have easement on own property. When Bailey had all three lots, line ran across all
lots. When she sells other two lots, there was a quasi-easement. Court wants to know if rises to the level
of a real easement. Other two owners are saying that she doesn’t have a right to run line across lots.
No estoppel—haven’t done anything that caused her to rely
Not an express easement
For prescription, not exactly open and notorious
Royster and Gray argue implied easement
English Rule won’t imply a reservation of an easement unless case of necessity
Here, Pl. knew about sewer (knew it had “modern plumbing.”
Kansas follows restatement of property. Restatement Rule states that there may be an easement by
necessity where it is reasonably necessary. Recognizes that there’s some room for flexibility. Will create
easement by prescription if reasonably necessary.
Easement Implied by Prior Use/Easement by Implication

Unity of ownership severed

Use in place before the parcel was severed

Use must have been visible/apparent at time of severance (“modern plumbing
knowledge”)

Easement necessary for enjoyment of dominant estate.
Othen v. Rosier
Plaintiff sued to enforce a roadway easement on Defendant’s land that Pl. claimed was established by
necessity and prescription. Land had previously been under unity of ownership. Court held that Pl. did
not have an easement by necessity because the necessity did not exist at the time of conveyance. Court
holds no easement by necessity because another way out exists. Way out by necessity is always the last
way out before property became landlocked. Additionally, for an easement by prescription the
possession has to be hostile, this was permissive, and it was not exclusive, since both parties used the
road, and Othen took no actions that would be inconsistent with Rosier’s ownership—he didn’t maintain
the road, etc.
Easement by Necessity

Common owner severed property


Necessity existed at time of severance
Easement is strictly necessary (not just convenient)
Scope of Easements: the extent of use an easement holder may make of the servient estate. Cannot
exceed scope. Often situations come up w/r/t location, intensity of use, improvements/maintenance
Brown v. Voss; Plaintiff sued for removal of obstructions to easement. Defendant sought injunction
against Plaintiff’s use of easement for adjoining parcel of land not included in express grant of easement.
Trial court denied injunction. Court of appeals reversed. The trial court found no substantial injury to P,
an injunction was not required as a remedy for D’s misuse of the easement but rather damages were
sufficient.
Termination of Easements

Terms of grant

Purpose for easement ends

Merger

Forfeiture for misuse

Release

Abandonment

Estoppel

Prescription

Recording Acts

Eminent Domain
Creation by Prescription – Can’t figure out where this goes and am running out of time
a. Same stuff for A/P to a use of an easement.
i. Open and Notorious- use must be made w/o any attempt at concealment.
ii. Under a Claim of Right-w/o permission (will apply objective, subjective or
good faith test)
iii. Exclusivity not required
iv. Continuous Use-not necessarily constant-to give notice to the owner that an
easement is being claimed (allows tacking)
v. Uninterrupted use- if the adverse use is interrupted by the owner than the
prescriptive period ends
Estates in Land and Future Interests: Present Possessory Estates BEFORE 1540
Fee Simple Absolute: “to Anne and her heirs” & her heirs—magic words! 1700, this is default!
1. Infinite
2. Devisable (no limits here)
3. Alienable
FEE TAIL: “TO ANNE AND THE HEIRS OF HER BODY”
1. Life estate for lineal heirs
2. When family line dies, estate dies
3. Fee Tail Special” O  A and heirs of body by W. Also fee tail male, fee tail female
LIFE ESTATE: “TO ANNE FOR LIFE” PRE-1700, THIS IS DEFAULT!
1. Present possession, future possession for as long as you live. Nothing to heirs
2. Can alienate, but only for your life.
a. Expires at the end of the measuring life
b. Not very marketable, given its limited duration
2. Can have life estate determinable (later on)
FEE SIMPLE DETERMINABLE: “AS LONG AS” “UNTIL” “WHILE”
a. Like a FSA, but continued possession limited by condition
b. Otherwise, present possession, future possession as long as alive, goes to heirs
c. “O  A and her heirs, as long as the land is farmed.”
d. If condition occurs (stop farming land, sell alcohol on premises), status changes
e. When status changes, the clock for A/P starts ticking.
f. A FSD can be sold, devised, etc., but the condition exists no matter what.
i. Grantor keeps a Possibility of Reverter (future interest)
ii. After 1540, a third party can have the future interest—Executory Interest in _
O
Tg
A’s FSD
(as long as the land is farmed)
O’s / ____’ s Possibility of Reverter
Fee Simple on Condition Subsequent: “but” “but if” “upon” “provided that”
a. Like FSA, and similar to FSD in that continued possession is limited by condition
b. Unlike FSD, though, status doesn’t change automatically. O has to re-enter and
demand. Language will usually state that O retains a right of reentry
c. Different from FSD because the right of reentry stays with O (haven’t had any examples
otherwise)
d. Devisable, saleable, and inheritable, as long as condition is attached.
O
A’s FS on CS
Tg
(If Land not Farmed)
Right of Reentry
Present Possessory Interests AFTER 1540
(after Statute of Uses and courts of equity get involved)
Fee Simple on Executory Limitation:
“To Anne and her heirs, but if Ben returns from Africa then to Ben and his heirs”
a. First phrase is legal title, second is equitable (fulfilling grantor’s intent)
b. The future interest relating to the FS on EL is the Executory Interest, in a grantee
c. Alienable, inheritable, and devisable
O  A and her heirs, but if the land is ever not farmed, to B and his heirs
O
Tg
A’s FS on Executory Limitation
B’s Executory Interest in Fee
O  A and her heirs as long as the land is farmed, but if the land is not farmed, then to B and his
heirs
O
A’s FS on Executory Limitation
Tg
B’s Executory Interest in Fee
Fee Simple on Executory Limitation also used to accomplish this previously barred
To do so, A will have the Fee Simple on Executory Limitation, and the future interest will
SPRING from O or SHIFT from another person.
Future Interests in Land BEFORE 1540
A. Future Interests in the Grantor
Fee Simple Absolute  O retains Nada
Fee Tail, Life Estate  O has Reversion
Fee Simple Determinable  O has Possibility of Reverter
Fee Simple on Condition Subsequent  O has Right of Reentry
How Created?
Alienable?
Inheritable?
Reversion
When O conveys
expirable estate (a fee
tail or life estate)
Y
Y
Possibility of Reverter
When O conveys fee
simple determinable
Gift/sale—N. Will--?
Y
Right of Reentry
When O conveys fee
simple on condition
subsequent
N
Y
B. Future Interests in a Grantee
Rules:
1. Only expirable estates could be followed by future interest in grantee (LE, FT)
2. The future interest created in B must be capable of taking effect immediately upon expiration of
the preceding estate. Must be able to be tested at expiration!
Purefoy v. Rogers: if a condition can be read to be verifiable at A’s death it should be.
O  A for life, then to B and his heirs. OK
O  A for life, and one year later, to B and his heirs. NO
O  A for life, then if B survives A, to B and his heirs. OK
O  A for life, then if B marries C either before or after A’s death, to B and his heirs. NO
3. The future interest created in B must not take effect before the expiration of the preceding estate.
Must not cut the previous estate short!
O  A for life, then if B marries C, to be and his heirs. OK
O  A for life, but if B ever becomes Prez, then to B and his heirs. NO (“but if” cuts short)
If the future interest follows these rules, it’s a REMAINDER. Two more questions.
1. What present estate will the remainder become if it ever becomes possessory?
Remainder in life estate, remainder in FSA, remainder in FSD
2. Is the remainder vested or contingent?
Vested Remainder
X has a vested remainder if X has a remainder and
a) is born and ascertainable, and
b) there is no condition that must be met for X to take possession, other than the expiration
of the preceding estate.
O  A for life, then to B and his heirs. OK
O  A for life, then to the first child born in NYC on day of A’s death. NO
O  A for life, then to B’s heir and his heirs. NO (heirs [and widows] aren’t
ascertainable until death of person)
Alienable inter vivos, inheritable, devisable
Contingent Remainder—those that aren’t vested. Can have alternate CR, p. 43
X has a contingent remainder if X has a remainder and:
a) X is unborn or unascertainable, or
b) There is a condition that must be satisfied before X may take possession. (precedent)
O  A for life, then if B survives A, to B and his heirs
O  A for life, then to B’s oldest child living at A’s death and that child’s heirs
B’s CR in FSA / CR in FS in favor of B’s oldest child living at A’s death
O
Tg
A’s LE
O’s Reversion
Ex
Alternate contingent remainders
X and Y have alternative contingent remainders if:
a) X has a contingent remainder, and
b) X’s remainder is followed immediately by Y’s future interest, which is a remainder
and which takes effect in exactly those circumstances where X’s will not.

“But if” means non-remainder (and void before 1536) unless it introduces a
condition precedent that is the opposite of the earlier condition precedent. =
Alternative CR. O still has a reversion.
Remainder reminders:

Whether remainder is vested or contingent often depends on info not included in
the grant.

There may be more than one future interest in a grant.
Family of Remainders
A. Doctrine of Destructibility of Contingent Remainders
Contingent remainder destroyed unless it vests at or before termination of preceding estate.
If it’s destroyed, then the next vested remainder comes into possession.
O  A for life, then to B and his heirs if B marries C
B’s CR in FSA
O
Tg
A’s LE
O’s Reversion
Ex
If B dies unmarried, remainder is destroyed and becomes something like this. It will also
look like this is B is unmarried when A dies.
O
Tg
A’s LE
O’s Reversion
Ex
If B gets married to C while A is still living, then the remainder vests at that moment.
Estate that precedes contingent remainder will be a life estate or a fee tail. Can end in three
ways: expiration, merger or forfeiture
Expiration
O  A for life, then to the first born son of A who reaches 21 and his heirs
If A has a son who’s 16 when A dies, remainder destroyed. O’s reversion becomes
possessory.
Expiration, con’d
O  S for life, then to A and his heirs if A marries S, and if A fails to marry S, then to B
and his heirs.
If B dies without a will, leaving D as his heir. No Change!
A marries S – A’s contingent remainder vests
S dies – A’s CR in FSA becomes A’s FSA (p. 69)
Merger
If successive vested estates come into the same hands, the two estates are transformed into
the largest possible interest.
O  A for life, then to B and his heirs. If A and B sell their interest to X, X would have a LE
pur autre vie and a vested remainder in FSA. These two interests would merge to form X’s
FSA.
O  A for life, then to B and his heirs if B marries C
B’s CR in FSA
O
Tg
A’s LE
O’s Reversion
Ex
If O conveys her interest to A before B’s contingent remainder vests, the CR is destroyed.
And the whole thing becomes A’s FSA.
Forfeiture (felony, renunciation)
If renounce or commit a felony before the CR vests (e.g., B needs to turn 21 for his CR to
vest, and A renounced when B was 18), the remainder is destroyed and goes to the next
vested interest.
B. Gifts to a Class and Vested Remainders, Subject to Open
O  A for life, then to A’s children and their heirs.
If A has no kids, their remainder is contingent because they aren’t born/ascertainable.
CR in F in favor of A’s unborn
O
A’s LE
O’s Reversion
If the grant were O  A’s children who reach 21 and their heirs.
As soon as one child reaches 21, the remainder is vested, subject to open—If the kid was X
O
A’s LE
X’s VR, Subject to Open
Subject to Open translated: Where a conveyance is to a class and at least one person of that
class is ascertainable or has met the condition precedent. The class may grow= subj to open.
Class closes when parent, whose children are the beneficiaries, dies.
Note: Rule of convenience on p. 82.
Review of Remainders on p. 83.
What are the consequences of vested v. contingent?
a. If vested tan the taker is already ascertained and there is no condition precedent
b. Contingent remainder destroyed if has not vested when previous life estate ends
(Doctrine of Destructibility of Contingent Remainders)
c. Rule Against Perpetuities (RAP) applies to contingent not vested remainders
Future Interests AFTER 1540
Executory Interests
Executory interests are the future interests created with a Fee Simple on Executory Limitation.
Allows a grantor to do more stuff. Can allow for gaps in time, has future interest spring forth.
p. 98.
The new interests put an overlay on the prior estates—they are all still around. Have to refine
ideas of reversion and vested remainder.
O  A for life, then to B and his heirs, but if B ever farms the land, then to C and his heirs.
B could lose interest only after it becomes possessory.
O
Tg
A’s LE
B’s vested remainder in FS on Executory Limitation
Ex
C’s Shifting Executory Interest
O  A for life, then to B and his heirs, but if A ever farms the land, then to C and his heirs.
B’s remainder is vested, but it could become divested before it ever becomes possessory.
B has a vested remainder, subject to divestment, in FSA. C has a shifting Executory Interest
If B could lose his interest EITHER BEFORE OR AFTER THE ESTATE BECOMES
POSSESSORY: Technincally, it’s a VR, STD, in Fee Simple on EL. More often, it’s called a VR,
STD, in fee. So a vested remainder subject to divestment is a vested remainder that is subject to
an executory limitation. B’s remainder is vested because he’s ascertainable and there’s no
condition precedent. B may lose the property to C, though, so it’s a VS in FS on EL
A vested remainder has at least three facets.

It can be vested indefeasibly—in an identifiable person, without condition precedent, and
without being subject to an executory interest or a condition subsequent;

It can be vested, subject to open; or

After 1540, it can be vested, subject to divestment—vested but subject to an executory
limitation.
Modification of Common Law
A. Destructibility of Contingent Remainders
Many states have gotten rid of the destructibility of contingent remainder. But we didn’t really
talk about modern stuff here, so the only thing to note is the change in Merger.
Merger recap. When the prior estate on which the contingent remainder is dependent ceases to
exist as a result of merging into a larger estate, the dependent contingent remainder is
destroyed.
But!! Merger won’t destroy contingent remainder when all the estates were created by one
grant. P. 120
B. Indestructibility of Executory Interests and Related Rules
Although contingent remainders and executory interests are similar in function and
characteristics (both inalienable intervivos at CL, both were devisable and inheritable.
Pells v. Brown: Executory Interests are Indestructible
Purefoy v. Rogers: Future interest will be construed as contingent remainder rather than
executory interest if capable of two interpretations.
C. Rule Against Perpetuities (or Why 1700 is the Magic Number)
Duke of Norfolk’s Case: Executory interests, in order to be valid and enforceable as written, had
to be SURE to become possessory within a certain period. Became RAP, which was way to
prevent grantor from controlling land from the grave as the executory interest thing was going a
little too far.
Requires that:
An interest vests; and
That it vests “soon enough.”
The grantor’s future interests are considered to be vested from the moment of creation.
No executory interest is good unless it become possessory, if at all, within 21 years following
a life or lives in being at the creation of the interest.
O  A and her heirs, but if the land is ever used for commerce, then to B and his heirs.
O
A’s FS on EL
B’s Shifting Executory Interest
A’s FEE SIMPLE ABSOLUTE
There’s no guarantee that the commercial use will occur within 21 years of the death of the persons
alive at the time of the grant, so B’s interest is VOID.
O  A and her heirs, but if the land is used for commerce, then to B for life.
O
A’s FS on EL
B’s Shifting Executory Interest
O’s Reversion
Beats the RAP! This one’s okay, because B’s interest will vest, if ever, during his lifetime
(his interest is a life estate).
O  A and her heirs, but if land used for commerce, then to B and heirs, if B is alive: OK
O  A and her heirs upon the return of prayer to public schools: NO
T, the testator wills $100K to A and her heirs upon the probate of his will: NO
RAP requires a GUARANTEE that A’s interest will vest within 21 years. Might not probate
will for 25 years. This is where the unborn widow and the fertile octogenarian come in.
RAP applies at TIME OF GRANT
Seven-Step Rule with RAP Problems
1. Classify Interests (Present, Future)
2. Identify Vulnerable Future Interests
a. contingent remainder
b. executory interest
c. vested reminder, subject to open
3. Circle all Lives in Being (Born and Ascertainable—not “widow”, “prez of GM”)
These are the validating/measuring lives
4. Identify Operative Facts for Condition—“Might the interest still be contingent or open longer
than lifetimes of everyone circled + 21 years.
5. Use cross-out rule; strike out offending interests until grant makes sense.
6. Reclassify interests
7. Apply to any other vulnerable interest.
Six Danger Signs for RAP
1. If condition is not personal to someone
2. Holder won’t be identified until death of someone described, but not named
3. Identified age or time period longer than 21 years.
4. Event that likely won’t last 21 years but might (war, probate of will)
5. Interest given to generation after next (to grandkids)
6. Conveyance requires survivorship of someone merely described, but not named (if named, we
know they’re born and ascertainable)
Some Supposedly Interesting Complexities
Life estate determinable—Life estate with condition
Drawn in same way as FSD except expiration because reversion is larger than possibility of reverter;
reversion swallows.
O  W for life, as long as she remains a widow
O
W’s Life estate determinable
O’s Reversion
O’s Possibility of Reverter
O appears to have retained two future interests—a reversion after the life estate and a possibility of
reverter if W remarries. The reversion is considered larger or more certain, so it swallows the
possibility of reverter.
O
W’s Life estate determinable
O’s Reversion
O’s Reversion
RULE: When O creates a life estate determinable in A and keeps the future interest for himself,
he retains a reversion.
O  W for life, as long as she remains a widow, then to B and his heirs.
O
W’s Life estate determinable
B’s Remainder
B’s Executory Interest
RULE: Future interest in a grantee after a life estate is a REMAINDER.
Some complex conveyances:
O  A for life, then if B is still living, to B for life, then to C and his heirs.
“If still living is surplusage” because B’s interest is in a life estate. But it is vested b/c no
meaningful condition precedent.
O  A for life, then if B is still living, to B and his heirs.
“If” clause is NOT surplusage; B has a contingent remainder in fee simple. O has a reversion.
O  A for life, then to the heirs of B and their heirs, but if at A’s death, B is still living, then to D and
her heirs. Contingent remainders in heirs of B, assuming B is living. Contingent because won’t
know B’s heirs until B dies. “But if” language shows that D’s condition for taking is the OPPOSITE,
so they have alternate contingent remainders. O has a reversion.
Rule in Shelley’s Case (p. 154)
a. If (i) one instrument (ii) creates a life estate/fee tail in A, and (iii) purports to create a
remainder in A’s heirs then the remainder becomes a remainder in fee simple in A.
b. Life Estates and fee tails only
c. Merger-the life estate in A and a remainder in A will merge
O  A for life, remainder to A’s heirs.
A’s heirs CR in Fee Simple
O
A’s LE
O’s Reversion
RULE IN SHELLEY’S CASE
O
A’s LE
A’s VR in Fee Simple
MERGER
O
A’s FSA
O  A for life, then to B for life, remainder to A’s heirs
A’s heirs CR in Fee Simple
O
O
A’s LE
B’s VR for Life
RULE IN SHELLEY’S CASE
A’s LE
B’s VR for Life
O’s Reversion
A’s VR in FS
No merger because there’s a vested interest between.
Doctrine of Worthier Title (p. 157)
a. Applies to grant of a remainder to the heirs of the grantor.
b. Doctrine converts the future interest into an interest in the grantor.
Clobberie’s Case
Tried to create a trust that springs into existence when marry or reach a certain age, but to give
interest in the meantime. Person died before either happened. Did her heirs get anything?
Court ruled that survivorship wasn’t required.
Dicta: “O  A and her heirs at 21” requires that A reach 21 to take any interest.
“O  A and her heirs to be paid at 21” means that A’s interest vests and will pass to her
heirs even if she dies before 21
Edwards v. Hammond
Rule in Wild’s Case
A/P Answer Outline
Actual Entry giving exclusive possession
Open and Notorious
Exception—minor encroachment on boundary
Adverse/Hostile/Inconsistent with TO’s rights—Likely to focus here on exam
a.
three approaches on the intent issue:
i. intent irrelevant—Majority. Did you use property inconsistent with rights of true
owner?
ii. good-faith standard (I thought I owned it), and
iii. aggressive trespass standard (I knew it wasn’t mine but I’m taking it)]
Continuous for Statutory Period
Use is intermittent (is this how owner would use?)
Is there a reason to extend time (tacking—privity)
Is there a reason to toll the SOL
Disability
At time c/o/a accrues
Ten years after removal of disability
With personal property, discovery rule
Did owner exercise due diligence
Color of Title and Constructive Adverse Possession
Color of Title: Claim founded on a written instrument (instrument is faulty—maybe person transferring
didn’t have power, mistake, will not notarized, etc.)
Most jurisdictions don’t require color of title to perfect title under A/P
Advantages:

Shorter statutory period

Lesser evidentiary standard (preponderance vs clear/convincing

If occupy portion of land under A/P, and have absent owner, court will award constructive
title to entire parcel
Justifications for adverse possession
a.
Utilitarian-Sleeping owner--why should land not being used not be occupied by someone else
who needs it-especially if they cultivate it, farming or other productive enterprises (social good)
b.
c.
d.
Earning theory—Improvements will make the property more valuable
Holmes’ idea of expectations of people who acquire attachments to property
Encourage quiet title. Everyone knows where they stand.
Effect of adverse possession:
a.
b.
c.
Owner must be aware that someone might be slowing stealing title
Encourages exploitation of land—those who want land to lie fallow punished
In some states, even though owner pays taxes, can lose title