PROPERTY OUTLINE
Winter 1999—Krier
By Amy Harwell
I. GENERAL OVERVIEW
In the US, land can’t be unowned.
Real property is land
Personal property can be unowned.
II.
FIRST POSSESSION: Acquisition by Capture and Creation (pg19-97)
ACQUISITION BY CAPTURE (pg19-59)
Pierson v. Post (pg19)—fox hunt on uninhabited land. Does a pursuer of a wild animal
acquire a right to it? Held: No. Pierson won.
 Mere pursuit does not vest any rights. If neither have “constructive
possession”, it belongs to who possessed it first. Labor theory, John Locke
 Majority is more formalistic/Dissent (Livingston) is more functional—he says
that foxes are noxious beasts, we want to encourage their capture, so he says
1st with a reasonable prospect of capture. Both sides use 1st in time.
 Majority’s is a rule, so a better line/Dissent wants a standard, more uncertain.
The lower the stakes, the more likely a rule results. What are the
advantages/disadvantages of certainty?
 Evidence suggests that Liv. was wrong. More people would not kill foxes
using the sportsman’s rule (flush this out more)
Glen v. Rich (pg26)—Whaling case. In whom is title to a killed whale invested? Held:
The person who killed it,  gets damages. Custom was that whoever killed the whale
owns it, and finder can claim a finder’s fee.
Keeble v. Hickeringill (pg30)—Duck pond. Does a landowner have a right to attract
ducks to his property unimpeded by one whose sole goal was to keep the ducks away?
Held: Yes,  was maliciously interfering with ’s trade
 Have to look at the purpose—if act is consistent w/the purpose in general,
then it is okay— could set up a competing duck pond, even maliciously as
long as it maximizes consumer welfare.
 Public policy favors protection of those who use their skill and industry to
promote trade.
Relativity of title—you can have ownership compared to one party but not another.
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Ratione soli—by reason of owning the soil, you own the things on or under the soil. So
landowner would own it under this (constructive possession), but the case is between 2
hunters
Ferae naturae—
Animus revertendi—captured animals that develop the habit of return continue to belong
to the captor when they roam at large. The reason is that domesticated animals are
valuable to society and this effort to tame is rewarded.
Rule of increase—owner of the mother owns the baby. Why? For the sake of certainty.
It is easier to determine the mother. Also cheaper to keep the baby with the mother
than the father
Rule of capture regarding underground pools of gas, water, oil and surface water. See
pg36-40 Bottoming rule.
Demsetz (pg40)—see Headnotes outline pg3-4. Ultimately doesn’t work because he
can’t explain who we went from uncooperative to cooperative.
Externalities (pg47)—
Why is trespass wrong? (Ask: What would the world be like if trespass was right?)
Tragedy of the commons
Tragedy of the anticommons
ACQUISITION BY CREATION (pg59-97)
Locke would agree that if you create something it is yours because you mixed your
labor with it
Cheney Brothers v. Doris Silk Co. (pg60)—silk scarves—designs can’t be patented or
copyrighted. Held: the idea cannot be protected, only chattels
 General rule (still survives): in the absence of some recognized right at
common law or statutes, a man’s property is limited to the chattels which
embody his invention. Others may imitate these at their pleasure.
INS v. Associated Press (pg62)—INS can’t rip off a story until the commercial value has
passes. AP has “quasi-property” right. Ct. thought that otherwise no news service
could survive. Here the “idea” was the “thing” and INS was endeavoring to reap
where it had not sown.
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INS has never been extended past its facts—Cheney is the law.
Baird’s Essay (pg62)
Smith v. Chanel (pg63)—perfume was unpatented, so it is okay to copy it. “Imitation is
the lifeblood of competition”. Trademarks are a signaling device. The consumer is
better off when the trademark is used so they can know that it is cheaper version of the
same thing. The point is to get consumers information.
2 sides:
1) efficiency
2) fairness—Lockean—endeavoring to reap where it has not sown.
To maximize consumption—it should be free
To maximize production—it should be very expensive
So somewhere in the middle—we need price to allocate scarce things.
Information is not scarce—it is a public good. Consumption by one person doesn’t
mean the next one can’t have it too.
Moore v. Regents of the University of Cal (pg66)—School got a patent and sold ’s cells
for profit. Held: Cells are not ’s property because he did not retain an interest in
them after removal.
 Majority made a mistake because they thought that people would go around
selling themselves. They said that if you call something property, it comes
with all of these rights. But Mosk gives abundant examples of where you
don’t get all those rights.
 There’s more here
Jacque v. Steenberg Homes (pg86)
State v. Shack (pg87)
Why is transferability important? It allows people to get something to its highest use.
Value maximizing.
Transferability = alienability
III.
SUBSEQUENT POSSESSION: Acquisition by Find and Adv. Poss. (pg99167)
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ACQUISITION BY FIND (pg99-116)
General Rule (owner): An owner of property does not lose title by losing the property.
O’s rights persist even if the article has been lost or mislaid.
General Rule (subsequent possessor): A finder has rights superior to everyone by the
true owner or prior possessor. This is called relativity of title. If we did not protect prior
possession, you’d be more careful and have less stuff.
Armory v. Delamirie (pg100)—chimney sweep found a jewel, and jeweler refused to
return it. Held: Boy wins
 Ct. said that a finder wins against all but a true owner.
 K: the court was wrong. A finder wins against all but a true owner and a
prior possessor. (F1 loses watch, was not the true owner. F2 finds it, F1 wins)
Courts try not to let things go back to a wrongdoer, or otherwise incentive to steal.
Bailment—the rightful possession of goods by a person (the bailee) who is not the
owner. A voluntary bailment occurs when the owner of the goods (the bailor) gives
possession to the bailee
You want the risk on the cheapest cost avoider, in this case the goldsmith. Who has the
best free chance to find the true owner? So if voluntary bailment, burden should be on
you. But if stolen (involuntary bailment), then buyer has best chance.
The Winkfield, note 3, pg101—“The wrongdoer, having once paid full damages to the
bailee, has an answer to any action by the bailor”
The Winkfield is wrong in involuntary bailments and right in voluntary ones.
Subrogation?
See 36 and 37 for hypos. Figure out who wins in what situation and the rationale
behind it.
Hannah v. Peel (pg103)—Soldier finds a brooch, homeowner sells it. Does the finder
have a claim to the found property superior to that of the owner of the house where the
property was found (if the homeowner was never physically in possession of the
house)? Held: yes. Soldier wins.
 True owner would win, but not involved.
 Prior possessor wins, so just trying to find out who possessed it prior.
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McAvoy v. Medina (pg110)— found a pocketbook on a table in ’s shop. TO never
found,  demanded the money. Held: The pocketbook belongs to the , finder has no
rights.
 Ct. said that the item was intentionally placed on the table, so it was mislaid.
We want the TO to be able to retrace his steps.
Rules
1. If finder is a trespasser, the owner of the premises where the object was
found always prevails over the finder. Rationale: to discourage trespass.
2. Object found under the soil. The object is awarded to the owner of the
premises, not the finder. Rationale: the object is a part of the soil.
Exception: treasure troves (pg112, note 4).
3. Object found in a private place: Usually awarded to the owner of the
home. Rationale: the owner only lets people in for limited purposes.
Also, the expectation is that everything in the home is the homeowner’s.
4. Object in a public place: Courts usually use the lost/mislaid distinction.
Lost property is property the owner accidentally and casually lost.
Mislaid property is property intentionally placed somewhere and then
forgotten. Lost property goes to the finder. Mislaid property goes to the
owner of the premises. Rationale: You won’t go back for something you
lost, so it doesn’t matter who gets it. But you will go back for something
you mislaid, so it should stay where it was mislaid. (the distinction is
impossible usually)
5. Abandoned property: always goes to the finder.
Maybe the locus owner should keep all property to protect the true owner who might
come back. See pg. 111, note 1. BUT then there is no incentive to turn things in. Things
must first be turned in to protect the true owner. K says: if TO doesn’t come, finder
should get it (unless there is a good chance they can split it). (But then there is no way
to protect the expectations of the locus owner).
No court has suggested the shop owner and the finder split the value—too caught up in
possession.
Law of finders is designed to:
1. protect true owners
2. reward honesty of finders
3. take into account locus owners reasonable expectations
Finders Keepers Losers Weepers
Advantages:
This is what happens in reality
Easy to administer
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Be more careful with stuff
Disadvantages:
Too careful with stuff
Incentives to steal
If lost, incentives to say I stole it
Inconsistent with protecting possession
ACQUISITION BY ADVERSE POSSESSION (pg117-167)
The Theory and Elements of Adverse Possession (pg117-143)
Purposes of adverse possession
1) To protect title—titles that go too far back are hard to prove
2) To bar stale claims—“Quiet Title”
3) To reward those who use land productively
4) To honor expectations
Requirements of adverse possession—must show: (pg131)
1) an actual entry giving exclusive possession
2) possession must be open and notorious
3) possession must be adverse (hostile) and under claim of right
4) possession must be continuous for the statutory period
1. Actual Entry (“earning” theory)—This is the moment when the
community would reasonable regard the adverse possessor as the owner.
The possession must be seen. At the entry point, the statute of limitations
begins to run. The possession must be exclusive in that the AP can’t be
sharing the property with someone else or the owner.
2. Open and Notorious (“sleeping” theory)—The AP must put the owner on
notice that he is claiming dominion, so that the owner can defend his
rights. Generally, using the property in a normal way is considered open
and notorious. This is constructive notice. The owner is required to check
in on his land at least once within the running of the statute.
3. Adverse and Under Claim of Right—3 approaches: (pg133)
a) state of mind is irrelevant—English test
b) state of mind required is “I thought I owned it”—sometimes American
test-- the AP must have a good faith belief that he has title. Under this
theory, a squatter could never get AP.
c) state of mind required is “I thought I did not own it and intended to
take it”.
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4. Continuous—Requires only the degree of occupancy and use that the
average owner would make of the particular type of property. A summer
home used by the AP every year counts as continuity of possession.
Van Valkenburgh v. Lutz (pg120)--’s use of the land was not adverse possession. He
had gained a prescriptive easement and that kept him from being able to get title. Ct.
applied NY statute. (more in notes on pg44-45)
NY Statute (pg124) (47)-Mistake cases:
Color of Title: (pg136) (47) Active possession of a little piece gives you constructive
possession of the rest even if a bad deed. More?
Mannillo v. Gorski (pg138)--’s improvements go 15 inches onto the ’s land.
 Ct says that state of mind is irrelevant
 What does Krier think? (pg51)
The Mechanics of Adverse Possession (pg143-153)
Howard v. Kunto (pg143)—Can you have a series of adverse possessors? Held: yes—
you have to be in privity
Tacking (pg149)—An AP can tack onto his own period of AP any period of
predecessors in interest. There has to be privity of estate; therefore the transfer of land
between possessors has to be voluntary. This is the American rule and it focuses on
earning theory (able to give credits you have earned to another). The English rule only
looks at sleeping theory (time out of possession, doesn’t matter who).
Improvements and Encroachments (pg150) (54)—At common law, an AP’s buildings or
fixtures erected without right, whether in good faith or not, became the property of the
land owner. Modern trend is to soften that.
Disabilities (pg151) (55)—The statute of limitations is extended when the owner has a
disability—don’t want to hurt someone who is not sleeping. Watch for: 1) only
specified disabilities count; 2) only disabilities at the time AP begins count; 3) insert the
words “or anyone claiming from, by, or under such person”; 4) can’t tack disabilities
Adverse Possession of Chattels (pg153-167) (57)
O’Keefe v. Snyder (pg153)—O’Keefe brought an action to recover 3 “stolen” paintings.
Come back to this—pg57 in my notes
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IV.
POSSESSORY ESTATES
Present interest—has the right of possession now or may be held in a trust and
you have income from it now
Future interest—you presently have the right to future possession:
1) for sure
2) maybe
3) for sure, but lose it later
4) maybe, but may lose it later
Words of limitation: “and his heirs”
Words of purchaser: to A
Living people don’t have heirs; just heirs apparent.
Freehold Estates
(seisin)
fee simple
fee tail
life estate
vs.
Nonfreehold Estates
(no seisin)
leasehold
FEE SIMPLE
Fee Simple Absolute
Largest estate an owner can have and lasts into perpetuity. At common law, it was
created by adding “and his heirs”. But today if no words of limitation, we assume a
FSA is being granted.
Fee Simple Defeasible
1) Fee simple determinable—
“so long as” are the magic words. These words of special limitation mean that
the estate will automatically end when the specified event happens; the estate goes
back to the grantor by a possibility of reverter. Look for while, until, during.
Example: O conveys Blackacre to the school board so long as the premises are
used for school purposes.
The school board has a fee simple determinable. It will automatically end
and revert back to O when the land is not used for school
purposes.(headnotes)
2) Fee simple determinable followed by an executory interest—
Example: O to A and his heirs so long as..., then to B and his heirs.
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A has a fee simple determinable followed by an executory interest, and B
has an executory interest in fee simple absolute (pg4)
The subsequent conveyance without the language of special limitation does not
work to defeat the original words of special limitation.
3) Fee simple subject to condition subsequent—
“but if” are the magic words. The estate will not automatically end when the
special event happens.
Example: O to A and his heirs, but if the premises are ever used for anything
other than residential purposes, O may reenter. (pg5)
O has a right of reentry. But A’s estate does not end automatically—it
ends only if the grantor exercises his option.
4) fee simple subject to executory limitation—
If the grantor gives the right of reentry to a 3rd party, then the estate does end
automatically in favor of the 3rd party on the happening of the event.
Example: O to A and his heirs, but if..., then to B and his heirs.
B has an executory interest that takes effect automatically on the
happening of the condition. A has a fee simple subject to an executory
limitation.
Go over the last paragraph of pg5, 6
FEE TAIL
This estate has the potential to endure forever, but it will cease when there are no lineal
descendants or “issue” (children, grandchildren, great-grandchildren) to succeed to.
Then will revert back to O, his estate, or his grantees (O has a reversion).
Magic words are “to the heirs of his body”
Example: O to A and the heirs of his body, then to B and his heirs.
O has a reversion. When the line of issue runs out, B would take a FSA by
remainder. For a time, A could convey his fee tail to a 3rd person, but only
for A’s life.
4 possibilities today—see pg7
LIFE ESTATE
These are estates measured by the duration of a human life. Magic words: “for life”
(used to just need to say O to A, but now that conveys a life estate)
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Example: O to A for life, remainder to B for life, remainder to C and her heirs
(pg8)
A has a present life estate, and it ends at A’s death
B has a remainder for life that ends when B dies
C has a remainder in FSA.
O has kept no interest
Example: O to A for life. Then A conveys to D for life.
D has the right to possession. D’s life estate ends when D dies or when A
dies. Thus D has a life estate which lasts for D’s or A’s life, whichever is
shorter. (called pur autre vie).
A has a reversion for life.
O has a reversion in FSA
Contrast: if A had said “to D for the life of A”. Now A has kept no reversion for
himself, and D has a pure life estate pur autre vie. If A dies first, D’s estate ends
and goes back to O. If D dies first, then D’s heirs take until A dies, and have a
life estate pur autre vie.
Life estates can be defeasible. So, if O to A for life, so long as..., then to B and his heirs,
A has a determinable life estate and B a remainder in FSA.
V.
FUTURE INTERESTS
A. Future Interests in Transferors
1. Reversion
2. Possibility of Reverter
3. Right of Entry
B. Future Interests in Transferees
1. Vested Remainder
2. Contingent Remainder
3. Executory Interests
a) Shifting
b) Springing
IN TRANSFERORS
Reversion
The future interest that arises in a grantor whenever the grantor transfers to another a
lessor estate than the grantor has, and does not at the same time transfer the balance to
a 3rd party. No such thing as a possibility of a reversion
Hierarchy
Fee simple
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Fee tail
Life Estate
Non-freehold estates
Example: O to A for life
O has a reversion in FSA
Example: A to B for 10 years
A has a reversion for life
O still has a reversion in FSA
Example: O to A for life, then to B when B reaches 21
O has a reversion
Possibility of Reverter
The future interest in a grantor when he creates a determinable estate of the same
quality as his own, and does not give the balance to a 3rd party.
Example: O to A and his heirs, so long as...
O has a possibility of reverter in FSA
Example: O to A for life, so long as...
This looks like a possibility of reverter and a reversion, but since it is a
lessor estate, just call it a reversion.
Right of Entry
The future interest in a grantor following an estate subject to condition subsequent in
which there is not a gift over to a 3rd party.
Example: O to A and his heirs, but if..., O may reenter.
O has a right of entry
Example: O to A for life, but if..., O may reenter.
O has a right of entry incident to a reversion because he conveyed a lessor
estate.
Example: O to Board of Education, but if the Board ceases to use the estate for
school purposes, O retains a right to reenter.
The board has a fee simple subject to condition subsequent
O has a right of entry
Possibility of Reverter vs. Right of Entry
See Pg10—this is very important!! And I don’t understand it.
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IN TRANSFEREES
Remainders
A future interest in a grantee that has the capacity of becoming possessory at the
expiration of the prior estate, and cannot divest (cut short) the prior estate. You cannot
have a remainder after a fee simple—only after a fee tail, a life estate or a term of
years.
Vested
To be vested, an estate must:
1) Be created in an ascertained person, and
2) Not be subject to a condition subsequent (or it must be ready to
become possessory whenever and however preceding estate
expires).
3) Follow a fee tail, a life estate, or a term of years (Can’t follow a fee
simple)
A vested interest can be
1) indefesibly vested—the remainder is certain of becoming possessory
in the future and cannot be divested.
2) vested subject to partial divestment (or vested subject to open)—if the gift
is given to a class of persons where one is ascertained but the others
may not be (such as A’s children)
3) vested subject to total divestment—when there is a condition
subsequent
Example: O conveys Blackacre “to A for life, then to A’s children and their
heirs”. At the time of the conveyance, A has 2 children, B and C. Two
years later, D is born to A. Then B dies leaving a child, E, and his wife, F;
B’s will devises all property to his wife, F. Then A dies. Who owns
Blackacre?
 A has a vested life estate (ascertained person and not subject to
condition precedent)
 B and C have vested remainders in fee simple (remainder
because won’t cut short A’s estate, nor will they take sometime
after A’s life estate is over. Vested because ascertained and no
condition precedent other than the natural termination of A’s
life estate).
 Unborn children have contingent interests because
unascertained.
 So B and C had vested remainders in FS subject to open or
partial divestment while A was alive
 The birth of D partially divested B and C by executory interest
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

The B, C and D had vested remainders in FS subject to open or
partial divestment
When B died, C, D and F took their vested remainders and now
own the property in FSA (assuming A is dead—what if A is not
dead?) as tenants in common with undivided 1/3 shares.
(pg13).
Example: Same facts as above except that O to “A for life, then to A’s
children, but if any child dies in the lifetime of A, his share shall go to
those children who survive A” Upon A’s death, who owns Blackacre?
 Here, any child who is born might be totally divested by the
words of condition subsequent (specifying that a child must
survive A in order to take).
 Still vested, though, because there is no condition precedent.
 The children are subject to partial divestment (because of
unborn kids) and total divestment (condition subsequent), so
the living children have vested remainders in fee simple subject
to partial and total divestment.
 Unborn kids have an executory interest in fee simple subject to
partial and total divestment.
 C and D own the property in fee simple as tenants in common
with undivided ½ shares at A’s death.
 B was totally divested by his death prior to A, in favor of C and
D. (the will to F is ineffectual because B was divested and had
nothing to give to F).
 C and D divested by executory interest, and then are ready to
take by remainder at A’s death
Example: O to “A for life, then to B for life, the to C and her heirs”
 A has a present vested life estate
 B has a vested remainder for life
 C has a vested remainder in FSA.
****See pg14 and 15 and go over that...Also look at pg264 of the
book—note the difference in the language.
Contingent
An estate is contingent if:
1) Given to an unascertained person, or
2) Made contingent on some even occurring other that the natural
termination of the preceding estate.
*The certainty of the estate becoming possessory is not the difference between VR
and CR’s, but whether the remainder person is ascertained or is subject to a
condition precedent.
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Example—children: O to A for life, then to A’s children. The remainder is
contingent because the children are not ascertained.
Example—heirs: O to A for life, then to B’s heirs. B is alive. The
remainder is contingent because no one is an heir of the living. The
remainder will vest in B’s heirs at B’s death.
Note: in both of these, there is a reversion in O. With a CR, there is
a reversion. With a VR, there is no reversion in O.
Example—condition precedent: O to A for life, then to B if B marries C. B
has a contingent remainder.
Caution—the termination of the preceding estate is not a condition
precedent or all remainders would be contingent.
THE BIG QUESTION: Is the remainder
1) A vested remainder subject to condition subsequent?
2) A contingent remainder subject to a condition precedent?
a) If the language is incorporated into the description of, or into the gift
to the person taking the remainder, then the remainder is contingent.
b) But if, after words giving a vested interest, a clause is added divesting
it, the remainder is vested
Example a: O to A for life, the to B, but if B does not survive A, to C.
B has a vested remainder subject to divestment by C’s executory
interest.
Example b: O to A for life, the to B if B survives A, but if B does not
survive A, to C. B and C have alternative contingent remainders.
(there is a reversion in O)
It matters whether it is vested or contingent because: (pg265-6)
1) A vested remainder accelerates into possession whenever and
however the preceding estate ends
2) At common law, a CR was not assignable and therefore
creditors could not get at it. (today, most states CR are
transferable and creditors can reach them)
3) At common law CR’s were destroyed if the did not vest upon
the termination of the preceding life estate
4) CR’s are subject to the Rule Against Perpetuities, and VR’s are
not.
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5) Under some state statutes, a CR has no standing to sue for
waste, partition, etc.
Executory Interests
A future interest that can divest or cut short the preceding estate.
Springing—a future interest in a grantee that springs out of the grantor at a date
subsequent to the granting of the estate.
Example: O to A and her heirs when A marries. A has a springing
executory interest.
Example: O to A for life, and one day after A’s death, to B and her heirs.
Shifting—a future interest in a grantee that divests a preceding estate in another
grantee prior to its natural termination.
Example: O to A and his heirs, but if B returns from Rome, to B and his
heirs. A has a fee simple subject to an executory interest. B has an
executory interest.
Example: O to A for life, and on A’s death, to B and his heirs, but if B does
not survive A, to C and his heirs. C has a shifting executory interest—it
vests, if at all, by cutting off B’s vested remainder.
Note: The future interest in the transferee following a fee simple determinable is
always an executory interest. This is because a remainder cannot follow any type
of fee simple. Example: O to A and his heirs so long as..., then to B and his heirs.
B has an executory interest.
RULE AGAINST PERPETUITIES
“No interest is good unless it must vest, if at all, no later than 21 years after some life in
being the creation of the interest”.
The Rule applies ONLY to contingent remainders and executory interests. (so does not
apply to vested interests or interests in a grantor)
It does not matter if it vests in possession, only if it vests in interest.
Have to find the measuring life—ANY life in being that will prove the interest will vest
within 21 years will do. A Life in Being:
1) is always a single person
2) must be alive or already dead
3) if you are conceived, you are born
4) can be a different person for each CR in a conveyance
5) can be represented by a survivor of a group unless the group is too
large
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6) If you want to use a group, the group can not get larger.
7) If I give a gift to a group, if it violates the rule as to one member, it
violates it for all.
See pg21-24 when I study this
ASK:
1) Is this interest contingent (in a transferee)?
2) Is it valid?
3) When does it vest?
Doesn’t matter if the life in being is named in the conveyance, only one measuring life
per group, and can’t be a group that gets larger (pg91)
VI.
CO-OWNERSHIP AND MARITAL INTERESTS
Three types of concurrent ownership:
1. tenancy in common
2. joint tenancy
3. tenancy by the entirety
Tenancy in common
Two or more persons own the property with no right of survivorship between them. So
when one tenant in common dies, her interest passes to her heirs or devisees. Each
owns an undivided share of the whole, so they can be conveyed by deed or will. (in
other words, only need one unity: possession)
Presumption: when in doubt, courts find a tenancy in common. At common law, the
presumption was a JT. The presumption for JT has been abolished in all states.
Joint tenancy
Two or more persons with a right of survivorship. So when one joint tenant dies, the
survivor takes all. The common law required the 4 unities for a joint tenancy.
4 unities
1. Time—the interest of each JT must vest at the same time
2. Title—all must acquire title by the same instrument or by joint AP
3. Interest—all must have equal undivided shares and identical interests
measured by duration
4. Possession—each must have a right to possession of the whole. Once a JT is
created, one JT can voluntarily give exclusive possession to the others,
though.
Any joint tenant can convert a JT in to a TC unilaterally by conveying his interest to a
third party with respect to that share without notice or consent.
16
A JT avoids probate because no interest passes on the joint tenant’s death. A JT cannot
pass her interest in a joint tenancy by will.
If a creditor acts during a joint tenant’s life, the creditor can seize and sell the JT’s
interest in property, severing the joint tenancy. If the creditor waits until after the JT’s
death, the decedent JT’s interest has disappeared, and there is nothing the creditor can
seize.
The 4th unity of equal shares makes no sense today and is increasingly ignored by
courts.
Tenancy by the entirety
Can be created only in husband and wife. Have to have the 4 unities plus one,
marriage. Like a joint tenancy because there is a right of survivorship. However,
neither husband nor wife can sever the JT by unilateral action. They can only convey by
joint action. Nor can they, acting alone, partition. Exists in only about half the states.
Divorce terminates the TE because one of the unities is gone. Absent some agreement
to the contrary, the parties usually become TC.
Severance of Joint Tenancies (pg326)
Riddle v. Harmon (pg326) (pg97)—Ct. said that one JT may unilaterally sever the JT
without the use of an intermediary device (a straw transaction).
 This seems more efficient
 However, there is an incentive to write out the severance, keep it quiet
if he dies first, and show it if you die first.
Harms v. Sprague (pg332) (pg98)—If one JT mortgages his interest in the joint property,
is the JT severed? No,  is free and clear owner of the property, no mortgage.
 Title theory says it is a severance
 Lien theory says it is a security interest in reality
 Most states say that no severance happens
 Consequences are that a lender who knows of the rule will not give
credit to one JT; a lender who does not know loses his security when
the debtor dies and the survivor gets a windfall.
 So banks will foreclose earlier if a JT, otherwise they just send letters.
Relations among Concurrent Owners (pg340)—“By definition, each tenant is entitled
to possession of the entire parcel of land yet he cannot exercise that right without
coming into conflict with the reciprocal right of his co-tenant.”
17
Partition (pg340)—If co-tenants can decide how to partition, then no problem. If not,
then can partition if a joint tenant or a tenant in common. Not available if tenants in
entirety.
Why is there a unilateral right of partition?
Free alienability of land
Otherwise will have bilateral monopolies
Sometimes partition is inefficient—when the property has sentimental value for one
and not the other.
May be able to partition in time.
Delfino v. Vealencis (pg341)— wants partition in kind, and she wants the part she is
using.  wants it sold because it is more valuable as a whole. Held: Ct. sided with the
 and ordered partition in kind (the default rule)
 Cts try very hard to give the land to the person who improved it or
who lives there
 Default rule is partition in kind. 2 exceptions:
1) Hard to break up physically (ex. Studio apartment)
2) Interests of the owners would be better promoted by a partition
by sale
 Burden is on the party requesting partition by sale to demonstrate that
such sale would better promote the owners’ interests.
 Although ct says part in kind is the default rule, the modern practice is
to decree a sale in partition actions in a majority of cases.
Sharing the Benefits and Burdens of Co-Ownership
Spiller v. Mackereth (pg348)—Is a co-tenant in possession liable to his co-tenants for the
value of his use of the property in the absence of an agreement to pay rent or an
“ouster”? No.
Ouster is two things:
a) the beginning of the running of the statute for adverse
possession (an outright claim of ownership)
b) co-tenant refuses demand of other co-tenants to be allowed into
use and enjoyment of the land.
The majority view is that occupying co-tenant is not liable for rent
notwithstanding a demand to vacate and pay. He must have denied a cotenant access.
Minority rule—A few jurisdictions say that a co-tenant in exclusive
possession must pay rent even without ouster.
18
Swartzbaugh v. Sampson (pg352)—Husband leased land to build a boxing ring against
the wife’s wishes. Can one JT who has not joined in the leases executed by her cotenant and another maintain an action to cancel the leases where the lessee is in
exclusive possession of the leased property? Held: No.
 The JT cannot lease more than his own share, but such a lease is valid.
 See pg105
Rents and Profits (pg358)
In all states, a co-tenant who collects from 3rd parties rents and other payments arising
from the co-owned land must account to co-tenants for the amounts received. What is
the difference between accounting and contribution?
Accounting is an equitable proceeding—based on actual receipts, not fair market value.
Taxes, Mortgage Payments, and other Carrying Charges (pg359)
A co-tenant paying more than his share of taxes, mortgage payments, and other
necessary carrying charges generally has a right to contribution from the other cotenants. Similarly, the co-tenant paying more than his share receives a credit for the
excess payments in an accounting or partition action.
However, if the tenant who has paid taxes or interest has been in sole possession of the
property, and the value of the use and enjoyment which he has had equals or exceeds
such payments, no action in any form for contribution will lie against the others. (not
uniformly applied, though.)
Repairs and Improvements (pg359)
Necessary Repairs
A co-tenant making or paying for necessary repairs has no affirmative right to
contribution from the other co-tenants in the absence. The rationale is that it is
too difficult and uncertain to decide what is a necessary repair, and it is a matter
of subjective business judgment. But, you can withhold money owed to a cotenant from rents. And you get a credit in accounting and partition actions. K:
how is it not uncertain here? This rule just doesn’t make sense. There is no
incentive to repair. There should be contrib. for repairs
Improvements
As with repairs, a co-tenant has no right to contribution for improvements, and
unlike repairs, there is no credit in accounting or partition actions. This makes
sense because improvements are more subjective—hard to say when you need
an improvement. Don’t want to subject a co-owner to the whims of another.
However, in partition actions, courts try to protect the improver. May give them
the improved part in partitions in kind. Or may give them the value of the
19
improvement in a partition by sale. Or may have the other co-owners pay an
owelty in an amount equal to the non-improvers’ share of the enhanced value of
the property resulting from the improvements. Note that the improver will only
get the increased value, not the cost of the actual improvements. So he bears the
complete downside of the risk, but also enjoys the full benefit of the increase in
value because he doesn’t have to share.
Does it make sense to treat improvements and repairs differently? K: like the
stupid lost/mislaid distinction
VII. LANDLORD-TENANT LAW
LEASEHOLD ESTATES
1. Term of Years
2. Periodic Tenancy
3. Tenancy at Will
4. Tenancy at Sufferance
Term of Years
An estate that lasts for some fixed period of time or for a period computable by a
formula that results in fixing calendar dates for beginning and ending. At common law,
there was no limit on how long the term could be (days, months, years, 3,000 years), but
some state have limits. The lease must be for some fixed period, but can be terminable
earlier upon the happening of some event. No notice of termination is necessary to
terminate because the dates are fixed in advance.
Can have a term of years determinable or a term of years with right of reentry (most
have this).
Periodic Tenancy
A periodic tenancy is a lease for a period of some fixed duration that continues for
succeeding periods until either the landlord or tenant gives notice of termination.
Example: “to A from month to month”
“to B from year to year”
If notice is not given, the period is automatically extended for another period.
Under common law rules, half a year’s notice is required to terminate a year to year
tenancy. But in many states, statutes have shortened the length of notice, and only 30
days notice is needed for a month to month.
The death of the landlord or tenant has no effect on a term of years or a periodic
tenancy, but it does on a tenancy at will.
Tenancy at Will
20
A tenancy at will is a tenancy of no fixed period that endures so long as both landlord
and tenant desire. The tenancy at will must be terminable by both parties. It ends at the
death of the parties, and modern statutes usually require notice, such as a month.
Garner v. Gerrish (pg421)—Does a lease that has no set dates and grants the tenant the
right to terminate at anytime have a life estate determinable or a tenancy at will? Held:
a life estate determinable.
So if the agreement does not create a term of years or a periodic tenancy, but the
tenancy is to continue so long as the tenant wills, the tenant has a life estate
determinable. This is the restatement rule.
Tenancy at Sufferance (pg425, 429)
The so-called tenancy at sufferance arises when a tenant remains in possession (holds
over) after termination of the tenancy. Common law allows the landlord 2 options:
1) eviction plus damages, and
2) 2) consent (express or implied) to creation of a new tenancy.
THE LEASE (pg431)
Conveyance v. Contract
It is both. A lease transfers a possessory interest in land, so it is a conveyance that
creates property rights. But it is also the case that lease usually contain a number of
promises, so it also creates contract rights. See pg432 for the implications.
The Statute of Frauds
The American statutes provide that leases for more than one year must be in writing.
All but a few permit oral leases for a term less than a year.
Bargaining Power
Form leases and lack of negotiation. pg433.
SELECTION OF TENANTS (pg434)
Landlords used to be able to discriminate and rent to whomever they pleased. Today,
they are restrained in a number of respects.
Fair Housing Act (pg435)—The act makes it unlawful to refuse to sell or rent to any
person because of race, color, religion, or national origin (now includes sex,
handicapped persons, and persons with children). It also prohibits advertising or
making any public statement that indicates a discriminatory preference.
Exemptions:
1) single family dwelling if:
a) doesn’t own three or more such dwellings
b) doesn’t use a broker
c) doesn’t advertise the discrimination
21
2) small owner-occupied multiple unit (Mrs. Murphy’s
exception) if:
a) four units or less
b) lives there herself
c) doesn’t advertise the discrimination
An aggrieved person may sue in federal court for an injunction, actual,
and punitive damages.
Civil Rights Act of 1866 (pg437)—“All citizens shall have the same right, in every state
and territory, as is enjoyed by white citizens thereof to inherit, purchase, lease, sell,
hold, and convey real and personal property.”
Soules v. US Dept of HUD—skim
Bronk v. Ineichen—skim
DELIVERY OF POSSESSION (pg459)—Is a holdover the landlord’s or the tenant’s
problem?
Hannan v. Dusch (pg459)—Does the landlord have an implied duty to deliver physical
possession to the tenant at the beginning of the lease term? Held: No.
 This is the American rule. Under it, the tenant’s remedies are against the
person wrongfully in possession; he may sue to recover possession and
damages.
 The English rule says the tenant’s remedies are against the landlord. Upon
default, the tenant may terminate the lease and sue for damages.
 Most American courts use the English rule. Which is more efficient? (pg115)
SUBLEASES AND ASSIGNMENTS
The general rule is that an assignment conveys the whole term, leaving no interest or
reversionary interest. Whereas a sublease is where a tenant grants an interest in the
leased premises less than his own, or reserves a reversionary interest (pg468).
The default rule is that you are free to sublet.
Assignment v. Sublease—2 different tests
1) If the transferring tenant keeps an interest, then a sublease. If conveys
everything, then an assignment.
2) Intent of the parties. K: hokey. Language used helps, but not conclusive. See
Ernst.
The first one is more common.
If a lessee transfers all of his interest is some physical part of the premises, most courts
call it a partial assignment.
22
Ernst v. Conditt (pg465)— conveyed to Rogers and allowed subletting, but Rogers
remained liable for the .  argued that  could not sue him because there was no
privity. Are the words “sublease” and “subletting” controlling in determining whether
a transfer is a sublease? Held: No, judgment for .
 Ct’s test—should look at intent of the parties. K: a dumb test
What are the consequences if the primary lease between the landlord and tenant is
prematurely terminated? See pg471.
Kendall v. Ernest Pestana (pg473)—Can a landlord refuse a commercial sublease for no
reason at all? Held: No.
 At common law, landlords could for no reason. May still be the
majority rule, but fading fast.
 See the case for the justifications of the majority rule.
I don’t understand the cost/benefit stuff for the maj v. the min. rule (pg120)
Landlord has a duty to mitigate.
THE TENANT WHO DEFAULTS (pg484)
The tenant in possession (pg484)
At common law, you could not terminate a lease for non-payment of rent. Considered
independent. So landlords starting inserting forfeiture clauses.
Berg v. Wiley (pg484)—Abandoned restaurant case. May a landlord use self-help to
regain possession of his property? Held: No
 Under common law, a landlord could use self-help under civil law, but
still subject to criminal prosecution. And some courts permit
peaceable self-help. However, this court says there is no such thing,
and that seems to be the modern rule. It is hard to say what peaceable
self-help is and courts are strict. So in essence the same as not having
it at all.
What remedies does the landlord have against a tenant in possession?
1) back rent, damages for injury
2) terminate the lease—no self-help. Summary eviction (not so
summary).
3) Terminate the lease and sue for future damages. See notes
pg124
4) L can sit by and sue at the end. Not a good policy if the tenant
is broke.
Summary proceedings—pg492
23
The tenant who has abandoned possession
A person who leaves with no intention to return—Hard to prove.
If tenant abandons, that is taken as an offer of surrender by the tenant. If L accepts, then
the lease is terminated, and T has no further liability.
Landlord can:
1) Sue for back rent and back damages
2) Terminate the lease and sue for back rent—no liability for future rent
or damages.
3) Terminate the lease and hold T liable for future damages—anticipatory
breach may still be available I don’t understand my notes here (pg125)
4) Choose not to terminate, sit on heels, and in most jurisdictions face a
mitigation requirement.
Summer v. Kridel (pg494)—Guy who got dumped before his wedding notified the
landlord he would not be taking the place. L did not terminate, and sued for the whole
2 years (and despite an inquiry about the place, did not release until later). Held:
Landlord has a duty to mitigate (modern trend)
If another tenant of L’s wants the defaulted place, does L have to let him? K: in
theory should be lost volume, but in practice, very difficult.
1) Hard to show apartments are fungible
2) How does a tenant prove what would have happened if hadn’t
changed apartments.
DUTIES, RIGHTS, AND REMEDIES
1) Duty to allow quiet enjoyment
2) Duty to deliver actual possession
3) Duty to convey legal right to possession
Theory
Quiet
enjoyment/
Constructive
Eviction –
applies to
residential and
commercial
properties alike
Duty
Is there a duty of
the LL?
- have to find
that the LL’s acts
breached a duty
1. latent defect
theory (not
patent)
2. promises to
repair
3. ??? (missed
this one)
Outset/During
[Does the defect
come at the
outset or did it
come during the
agreement (did
you know the
roof leaked when
you signed the
lease or only
after)?]
 theory applies
to BOTH
24
Breach
Substantial
interference w/
use and
enjoyment.
Tenant’s Remedies
1. To leave the premises w/in
a reasonable time claiming
that s/he was essentially
evicted.
2. to stay and sue for breach
or for damages
3. CANNOT stay in
possession and withhold
rent* (if I stay in possession
and don’t leave then I
waive the right to leave)
Illegal Lease
Commercial or
Residential (per
the Housing
Code)
Comes out of
Housing Code or
Building Codes
Theory applies
At the
Outset Only
Time the lease
was made is the
crucial time.
1.
Substantial
Breach
**** see note
below
Implied
Warranty of
Habitability
2.
3.
Put in and keep
in habitable
condition
A. Both
Warranty applies
to both patent
and latent
defects (cannot
be waived
because tenants
don’t have the
same bargaining
power as LLs –
this suggests that
the plight of the
low income T
will be
aggravated in the
long run b/c of
lack of
bargaining
power)
*****
1.
Failure to
provide and
maintain
habitable
premises serves
as a breach by
the LL.
2.
3.
T could vacate [T in the
meanwhile was lib only for
fair rental value (what the
ct. found was reasonable)]
If T paid rent, could sue for
recovery if amt paid was
over the fair rental value
T could abate rent and still
defend a possession suit by
LL (could be ordered later
to pay fair rental value but
that’s the worst)**
T can vacate, terminate the
lease and sue for damages
(T does not have to leave
w/in a reasonable time
because if so it would = a
waiver if T stayed but in
IWH, there are no waivers)
Stay and abate rent (if the
ct. finds that the warranty
doesn’t apply or that the
premises was not
uninhabitable then the T
can be evicted for failure to
pay rent or can be held liab
for back rent due)***
Stay and sue for specific
perf.
* unless (note 3 – p. 516) doctrine of partial eviction [if you rented 2 rms from a LL and the LL closed you
out of one – kept you out of actual possession of part, you did not have to pay any rent on the whole]
- arguments that a broken a/c for example is a breach of part of the premises, the same
way that exclusion from one room is a breach allowing T to withhold rent – such
arguments have failed
- trivial failures and conditions don’t count at all toward constructive eviction
** Drawback to this policy was that Housing Codes are usually narrower than other guidelines.
[you can abate rent and say that the reason you abated rent was because of the breach (leaky roof) but the
disadvantage is that the housing code is very specific and you don’t know that the breach you are
claiming is actually going to fall in the housing code so that’s why it’s dangerous and is a drawback to
apply under the illegal lease theory]
*** If you stay and abate rent and the ct decides that you only owe part of the rent, you will later only
have to pay that part of the rent due.
**** developed out of DC circuit ct. because Ts kept coming with shitty places who knew about the
problems when they moved in so they couldn’t get it under quiet enjoyment because they knew about it
25
to begin with so they came up with this illegal lease theory (that an apt w/o a toilet for example is illegal,
even if the T knew about it when s/he moved in)
*****Krier says that one of the problems with IWH is that people live in these places because they can’t
afford to live somewhere else (at least they are living somewhere) but if you sue under IWH and so the
LL has to go and fix the problem, that means the LL has to raise the rent to cover the problem
- slum LLs actually serve a purpose in that they do provide cheap housing to people who need it
LANDLORD’S DUTIES; TENANT’S RIGHTS AND REMEDIES
Quiet enjoyment and constructive eviction
Reste Realty v. Cooper
Implied warranty of habitability
Hilder v. St. Peter
THE PROBLEM OF AFFORDABLE HOUSING
Chicago Board of Realtors v. City of Chicago (pg535)
Schill Article
VIII. NUISANCE
Classic Restatement Model
--gravity of harm—consequences or loss or damages
--risk—probability of the harm occurring
--’s burden of precaution--’s avoidance cost (pg129)
Boomer v. Atlantic Cement Co. (pg758)—Where there is a nuisance is shown with
substantial damages, must an injunction be allowed as a matter of course, regardless of
economic consequences? Held: No. The court granted the injunction on the condition
of payment of permanent damages to the s which would compensate them for the
total economic loss to the property present and future caused by the ’s operations. (K:
which is just like not granting an injunction at all.)
 The cement company may pay the damages. But if the AC is less, then they
don’t pay and stop polluting. So if you attach the right price, then it
promotes efficient results.
Two ways the court will never have to decide between damages and injunctive relief:
1) Always grant injunctions 2) Always grant damages
Advantages of always granting injunctions:
Low administration costs
Disadvantages:
If you do this and transaction costs are too high, then no negotiation
Advantages of no injunctive relief:
26
Certainty
Disadvantages of no injunctive relief:
Because assessment costs are high, the court will be inaccurate, or even if
they can be corrected that means that transaction costs are low and you
should be using injunctive relief.
Spur Industries v. Del E. Webb (pg765)—cattle feedlot. A developer bought the land
around the feedlot. Where the operation of lawful business becomes a nuisance by
reason of the encroachment of a nearby residential area, may the business operation be
enjoined. Held: Yes. But because  came to the nuisance, he has to pay  the shutting
down or moving costs
IX.
PRIVATE LAND-USE CONTROLS: The Law of Servitudes
Servitudes
A. Easements
B. Covenants
1. Real covenants
2. Equitable Servitudes
EASEMENTS
An easement is a grant of an interest in land that entitles a person to use land possessed
by another (conveyance). There is no privity requirement for easements. The benefits
and burdens run without privity of estate.
Types of easements
1) Affirmative easements—The owner of an affirmative easement has the right
to go onto the land of another and do some act on the land. Most easements
are affirmative. Example: buying a right to cross the land.
2) Negative easements—The owner of a negative easement can prevent the
owner of the servient tenement from doing something on the servient land.
These are rare. Example: can’t build above a certain height.
Easement appurtenant—An easement that has a dominant tenement. It benefits the
owner of the easement in the use of land belonging to the owner.
Easement in gross—An easement with only a servient tenement, without a dominant
tenement. It does not benefit the owner of the easement in the use of land belonging to
the owner, but benefits the owner without regard to ownership of land.
Dominant
Servient
There is no such thing as an easement without a servient tenement, by definition.
27
A personal covenant = not transferable
Commercial = benefit is transferable
Sometimes courts say that if appurtenant, then transferable and if gross,
not assignable. That’s incorrect.
Creation of Easements (pg783)—
To create an easement:
1) put it in writing
affected land, benefited, scope, duration, location
2) record the easement
Willard v. First Church of Christ, Scientist (pg783)—Owner wanted to reserve a
parking lot for use by the church on Sunday. May a grantor reserve an easement to the
benefit of a stranger to the title? Held: Yes.
 The Restatement 3rd agrees with this, but there is much contrary
authority.
 K: not clear—but thinks its appurtenant and personal.
Reservation—is a provision in a deed creating some new servitude which did not exist
before as an independent interest.
Example: O conveys Blackacre to A reserving a 20-foot wide easement of
way along the south boundary.
Exception—is a provision in a deed that excludes from the grant some pre-existing
servitude on the land.
Example: After the above, A conveys Blackacre to B, except for the
easement previously reserved by O.
At common law, you couldn’t reserve or except in favor of a 3rd party. Here, the court
held that an easement can be reserved in favor of a 3rd party, but says that an easement
cannot be excepted in favor of a 3rd party.
License (pg790)—permission given by the occupant of land allowing the licensee to do
some act that otherwise would be a trespass. This privilege is very common and
resembles an easement. However, it is revocable. There are two exceptions:
1) A license coupled with an interest cannot be revoked.
2) A license can becomes irrevocable under the rules of estoppel.
Some jurisdictions don’t allow it because it’s easy enough to do it the right way.
BUT it seems unneighborly to get it in writing, and then will want payment
BUT no incentive to do it the right way because courts will bail them out, and
there is no record of a license for a future owner to know about
28
Holbrook v. Taylor (pg790)—Case says if in reliance on a granted license, you make
substantial improvements that if the license is revoked and those investments are wiped
out, then the license will be irrevocable for the period that if will take you to realize the
value of the improvements. It lasts as long as it takes to realize the improvement. It is
limited to adjacent land.
Implied Easements
2 different kinds of easements (pg801):
Easement implied from a prior existing use (see Van Sandt)
If, prior to the time a tract of land is divided into two lots, a use exists on the
“servient part” that reasonably necessary for the enjoyment of the “dominant
part” and which the court finds the parties intended to continue after the tract is
divided, an easement may be implied. The use that exists at the time of the
division of the property is called a quasi-easement (it is not a legal easement
because O cannot have an easement on O’s own land). To have a quasieasement, the previous use must be apparent and continuous. I have no clue
what a quasi-easement is
Quasi-easement: when a landowner uses a portion of his estate to the
benefit of the remainder of his estate, a use in the nature of an easement
arises, even though, the landowner does not specifically “grant” the use to
himself. See the case brief for more
Easement by Necessity (see Othen)
An easement by necessity is implied if the owner of a tract of land divides the
tract into two lots and by this division deprives one lot of access to a public road.
An easement of way over the lot with access to the public road is implied.
Usually it must be strictly necessary and not just convenient. An easement by
necessity is implied only when land is divided. An easement by necessity cannot
be implied over land that was never owned by the common grantor of the
dominant and servient tenements.
How long do easements last?
1) easement of necessity lasts as long as it is necessary
2) easements implied in fact last into perpetuity
Van Sandt v. Royster (pg795)—Ct. found that an easement by implication was created.
May a court of equity recognize an easement that exists, if at all, only by virtue of an
implied reservation? Held: Yes.
2 requirements:
1) necessity
2) notice
I don’t understand this cost benefit stuff about this case (pg144)
29
Othen v. Rosier (pg802)—He lost because he did not prove that he did not have a way
out. The last piece of land sold is your way out.
The court held that you must show three things:
1) That there was a unity of ownership of the alleged dominant and
servient estates.
2) That the roadway is a necessity, not a mere convenience
3) That the necessity existed at the time of the severance of the two
estates.
Easement by prescription (pg810)—lost grant
Assignability of Easements (pg823)
The benefits and burdens of appurtenant easements pass automatically to assignees of
the land to which they are appurtenant. Where the benefit is in gross, however, the
benefit may not be assignable.
If you sell the dominant estate, the estate carries the easement, unless the easement is
excepted or if conveyed to the owner of the servient.
And burden of easement goes with the ST as long as the purchaser knows.
Miller v. Lutheran Conference & Camp Assoc. (pg823)—The court found that easements
in gross for boating and fishing were expressly granted and swimming was obtained
via prescription. The court also held that easements in gross were assignable.
 One stock rule—When 2 or more persons own an easement or profit in
gross, the must use the easement or profit as one stock. Neither can
operate independently of the other. One owner can veto use by the
other because consent of all is required.
See the notes after the case—pg831 and read these 3 cases again (miller,
vansandt, and othen)
Scope of Easements
Brown v. Voss (pg832)—If easement for B, then can’t use it for C. Can’t extend a
servitude to benefit a non-dominant estate (not even a deck or a garage or anything). At
common law, entitlement protected by a property rule. After Brown, protected by a
liability rule. May a court grant an injunction against the owner of a servient tenement
which allows the owner of the dominant tenement to use the easement for access to a
nondominant tenement? Held: Yes.
Termination of Easements
Ways to terminate easements
1) Dominant and servient tenements under same ownership
2) Agreement
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3) Eminent Domain
4) Abandonment
5) Lost by prescription
Preseault v. United States (pg842)
COVENANTS
A covenant is promise to do or not do a certain thing relating to the use of land. We
want to maximize the joint utility of the land. Can’t do it in contract because we want
the promise to last past the lives of the original contractors.
Equitable servitude is the same thing as a covenant of law. It is just being enforced at
equity.
5 rules for the covenant to run with the land (pg153):
1) Enforceable agreement—“in writing”
2) Intention of the parties that burden and benefit run
3) Notice (constructive) to the subsequent purchaser as to the burden (not
for the benefit)
4) For the burden to run, it has to “touch and concern” the land.
(cts would police ones they didn’t like)
5) There must be privity of estate.
Horizontal privity—original bargain between the 2 parties. What
does the rest of this mean? (pg154)
Vertical privity—privity between promisee and assignee
Benefit v. Burden—I don’t understand this!!
Horizontal privity—need a straw transaction (dumb) requires 2 deeds instead of
one. Must be part of a land conveyance
2 positions:
1) both parties must have a mutual interest in the same land to have
a covenant (MA)
2) most courts define it to be a successive (grantor-grantee)
relationship.
st
1 Rest—synthesized the 2 positions and said you need horizontal privity,
either mutual or successive, for the burden, but not the benefit to run. (K:
this is dumb. Rationale is that burdens make the land attractive and
burdens don’t, but they are tied together.)
3rd Rest—says horizontal privity is not required for a covenant to run to
successors.
Vertical Privity—does not run with the land, runs with an estate in land
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1) For the burden to run: have to succeed to all of CR’s interests
2) For the benefit to run: just need to succeed to any interest of CE.
rd
3 Rest.—discards the vertical privity doctrine. It makes a distinction between
negative and affirmative covenants. Negative easements are treated like
easements for succession purposes. They run to all subsequent owners and
possessors of the burdened and benefitted property. Affirmative covenants
(requiring the burdened owner to perform an act) are different. The burdens and
benefits of such covenants run to person who succeed to estates of the same
duration as were held by the original property parties to the covenant, that is,
those persons who satisfy the traditional privity requirement. See pg863 for
more differences...(K: more modern, makes more sense)
EQUITABLE SERVITUDES
An equitable servitude is a covenant, whether running with the land at law or not, that
equity will enforce against assignees of the burdened land who have notice of the
covenant. The remedy granted is an injunction.
An Equitable Servitude is a covenant respecting the use of land enforceable against
successor owners or possessors in equity regardless of its enforceability at law. (pg866)
Property Theory of Equitable Servitudes (pg866—note3)
Don’t need horizontal and vertical privity anymore, and may not need writing. But still
need enforceable promise, touch and concern and notice.
Tulk v. Moxhay (pg863)—Leicester Square case. May, not being in privity of estate
with , disregard a previous covenant restricting use of land even though he had notice
of said covenant? Held: No.
 No privity here because England only recognizes HP between
landlord/tenants.
 Got rid of HP, kept everything else: enforceable promise, touch and concern,
purchaser must be on constructive notice
 Why should  be bound? Seems only fair because he knew about the
restriction.
 What’s wrong with that? He relied on the fact that it wouldn’t be enforced. 
pd more,  got a windfall.
 ES got rid of HP and VP. Now that law and equity are mixed, seems like you
can mix it up. 3rd Rest does ES, but give a legal remedy.
Creation of Covenants
Sanborn v. McLean (pg868)—Will lots conveyed by a common grantor, some conveyed
with restrictions and some without, all be impressed with the restrictions? Held: Yes.
 Reciprocal negative easement—
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




Developer:
1) writes out the restrictions
2) records them
3) sells the lots, and either recites the restriction or refers to
the record.
Here, the developer forgot to restrict a couple of lots. Ct. says, look around, it
is residential here. When lot one was sold with restrictions, the rest are
restricted—so common owner means that lot 7 is restricted too.
Ct. says he was put to inquiry. Of what? He has to look at the records.
No constructive notice, but inquiry notice
Does every lot in the subdivision have to have a restriction in order for there
to be a common plan? 2 views: 1) saves the neighborhood
2) says its easy enough to do it the right way.
You can have a subdivision that:
1) lot by lot restrictions
2) a common restriction
3) all remaining lots are restricted
See note 1 on pg880 on vertical privity—I don’t get it
“Touch and Concern”--Covenants restricting the use of land have almost always been
held to touch and concern land. But courts have been wary of enforcing affirmative
covenants. Courts were able to get rid of covenants they didn’t like. See pg881-885 on
this and Rest3d (pg885)
Caullet v. Stanley Stilwell & Sons (pg885)—Does a servitude in gross, where by the
benefit is personal but the is burden placed upon the land, run with the burdened land?
Held: No. See the notes after the case pg889
Termination of Covenants—
1) express release
2) by its own terms
3) eminent domain
4) various consequences of misuse, misactivity, or misfeasance
a) laches—you wait too long to enforce a violation
b) estoppel—you give signs the violation is fine
c) waiver—“vengeful neighbor”—you only enforce it against people
you don’t like
d) unclean hands—if you do it too.
5) adverse possession
6) changed conditions—see Western
3 possible rules (pg163): I don’t really understand this
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1) Entitlement in the observers protected by a property rule (Western)
2) Entitlement in a violator protected by a property rule (but domino
effect)
3) Entitlement in observer protected by a liability rule
Western Land Co. v. Truskolaski (pg907)—As long as the original purpose of the
restrictive covenant can be accomplished to the benefit of the restricted area, will the
covenant be enforced? Held: Yes.
 Entitlement in the observers protected by a property rule
 See pg162 –confusing
Rick v. West (pg912)—One lady holding up the building of a hospital. Is the covenant
nonenforceable due to a substantial change in the general neighborhood? Held: No.
Rest3d (pg913)
Pocono Springs Civic Assoc. v. MacKenzie (pg916)-- tried to abandon their lot.
Common Interest Communities (pg919) see notes pg164
Nahrstedt v. Lakeside Village Condos (pg921)—Cats in a condo.
Original restrictions—(in original development plan)—more relaxed review (rational
justification)
Subsequent restrictions—(enacted by the assoc. or the community members)—less
relaxed review (reasonable basis)
Because before you buy, can make an informed decision.
But why not people who move in after they already voted on it get more relaxed
review? More on pg165-6
X.
LEGISLATIVE LAND USE CONTROLS: The Law of Zoning
A. Introduction
1. Historical Background
Village of Euclid v. Ambler Realty Co. (pg950)—Suburb of Cleveland. City divided it
into use areas, height areas, and area districts. Said the purpose is to promote public
health, safety, welfare and morals (police power).  argued it was a taking because full
value couldn’t happen. DCt. felt it promoted economic segregation because apartments
placed elsewhere. Is a comprehensive zoning plan restricting uses of properties
according to areas designated by a legislative body unconstitutional for violation of Due
Process and Equal Protection Clauses of the Constitution? Held: No.
 Euclidian zoning—a lower use can never locate in a higher use, but a
higher use can be anywhere.
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
Judge said there was no problem because industry and apartments are
like a nuisance and height and area restrictions are like regulating air and
light.
 Zoning is constitutional in general. But applied to a specific set of facts (or
piece of land), it might be unconstitutional.
(pg960)—Cts usually uphold zoning in the face of a takings allegation, especially
if it is nuisance-like or as long as the property owner still has some reasonable
use.
2. Structure of Authority Underlying Zoning
a) Enabling legislation (pg960)
Nonconforming Use—
A use in existence when the zoning ordinance was passed that is not permitted in the
zone in which the property is located. When you try to zone afterwards, it is a takings
issue.
Non-conforming uses usually get to stay. Exceptions—
1) if a nuisance, then you are out of luck
2) zoning may limit the expansion of a non-conforming use
3) if the land is changed in any way, the zoning rules govern and the land
has to comply
4) Amoritization: 2 schools—
a) it is the best way to constitutionally deal with non-conforming uses
within a reasonable period
b) it is unconstitutional because retroactive legislation.
K: if zoning is acceptable (and it is), then amortization has to
be okay too.
PA Northwestern Dist. v. Zoning Hearing Board (pg965)—Is a zoning ordinance which
requires the amortization and discontinuance of a lawful preexisting nonconforming
use confiscatory and violative of the state constitution as a taking of property without
just compensation? Held: Yes.
Factors that go into amortization (pg973):
1) nature of the use in question
2) the amount invested in it
3) the number of improvements
4) the public detriment caused by the use
5) the character of the surrounding neighborhood
6) the amount of time needed to “amortize” the investment
Also some in notes—pg170
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7) number of non-conforming uses of a particular type (ex. 1 vs. 20
bookstores) (with fewer, the more accurate the period of time
8) distribution of “necessary periods” for non-conforming uses in a
category around the mean—see the chart pg170—I don’t get it
9) sense of categories
C. Achieving Flexibility in Zoning
Rigidity v. Flexibility (pg171)
Variances and Special Exceptions
Variance—an administratively authorized departure from the terms of the zoning
ordinance, granted in cases of unique and individual hardship.
Standard State Zoning Enabling Act says: one can be granted when: “it will not be contrary to the
public interest, were, owing to special conditions, a literal enforcement of the provisions of the
ordinance will result in unnecessary hardship and so that the spirit of the ordinance shall be
observed and justice done”
2 kinds of variances:
1) use variance (grocery store in a residential area)
2) size variance—easier to get
Balancing test:
If you haven’t imposed the hardship on yourself AND
Substantial detriment to you AND
Not too much detriment to neighborhood
So test is (pg171):
a) undue hardship (strict—no use of the lot at all)
i)
no other use can be made of the lot
ii)
undue hardship can’t be self imposed
b) no substantial detriment
See pg983 for more, also read the case for elaboration on undue hardship.
Inherent within the meaning of undue hardship is the idea that the owner must try to
make the property comply first. This means he must try to purchase more land to fulfill
the zoning regulation or offer to sell to neighbors.
Variances are abused a lot, lay people sit on these boards, neighbors. They don’t sit
long and they have no expertise, subject to persuasion.
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Special Exception—a use permitted by the ordinance in a district in which it is not
necessarily incompatible, but where it might cause harm if not watched. So you can
anticipate all the variables, but you don’t know exactly where. If you meet all the
criteria, it WILL be granted. So flexible and rigid at the same time. Listed uses will be
granted an exception only if very general criteria are met (no adverse effects on health,
welfare, and safety, for example) (don’t these criteria just bring in subjective problems
from variances again?) See pg989 for more stuff.
The variance is like a standard
The special exception is like a rule (the best approach if you can use it)
Commons v. Westwood Zoning Board (pg976)—Court overturned the denial of a
variance. Must a zoning board specify its reasons for refusing a variance request?
Held: Yes. Board did not explain how the lack of 70 ft. of frontage would lower the
value; they were just conclusory.
Cope v. Inhabitants of the Town of Brunswick (pg984)—Does a local zoning board have
authority to take action based on general statements of policy contained in the zoning
ordiance? Held: No.
Zoning Amendments and the Spot Zoning Problem
Spot zoning—is invalid where some or all of the following factors are present:
1) a small parcel of land is singled out for special and privileged
treatment
2) the singling out is not in the public interest but only for the benefit of
the landowner
3) the action is not in accord with a comprehensive plan
Spot zoning usually arises from amendments, but it can arise from administrative
variances and special exceptions. Usually means preferential treatment, but can be to
the detriment of the owner.
We are concerned that special favors have been granted. The judicial review of zoning
regulations is extraordinarily permissive, so if amendments are considered legislative
and the same as the regular zoning stuff, then may be particularly vulnerable to spot
zoning and other abuse. So in response to this, a common rule is that an amendment
must be justified by showing a mistake in the original ordinance or a change in
conditions subsequent to enactment.
We worry that the amendment process will be used where V and SE’s were designed to
apply without the judicial review they are subject to. V and SE are quasi-judicial,
readily reviewable, have close judicially scrutiny, not deferential.
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Fasano v. Board of Co. Commissioners (pg990)—Must a change in zoning conform to
the comprehensive plan? Held: Yes.
 Fasano rejects the other requirements (of mistake and change) and
substitutes more intense judicial review when zoning amendments are
of an essentially “adjudicative” nature
 Is judicial scrutiny the best way to control abuse, or does the
amendment process itself provide a better means?
 Recent academic writing has been highly critical of the Fasano
approach (see pg1001). More notes in the book here, read them
Arnel Development Co. v. City of Costa Mesa (pg995)—Neighbors wanted a zoning
amendment to prohibit Arnel’s development. May the voters of a jurisdiction modify
the zoning of relatively small parcels of private property through the initiative process?
Held: Yes.
D. Expanding the Aims of Zoning
Aesthetic Regulation—
Court asks whether aesthetic objectives be the sole end of the zoning power. They were
skeptical at first, but zoning is designed to uphold property value, so it seems okay.
Almost all courts say that aesthetics can be one consideration.
Discussion of the differences between senses pg176-178
State ex rel. Stoyanoff v. Berkley (pg1012)—May a building permit be refused if a
proposed house is found to be grostesque by the city structural board? Held: Yes.
Anderson v. City of Issaquah (pg1020)—Constant building revisions, board said to just
drive up and down the street to get an idea.
City of Ladue v. Gilleo (pg1031)—sign restrictions
Household controls (pg1042)—
K: doesn’t care if you are married, just function as a traditional family.
Village of Belle Terre v. Borass (pg1042)
City of Edmonds v. Oxford House (pg1053)
Exclusionary Zoning and Growth Controls (pg1061)—
All zoning is exclusionary by definition. It is a term of art that describes attempts to
exclude certain types of people. While growth controls exclude everyone. Goals are
different, but politics are similar
Exclusionary Zoning
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Fiscal Model
1) low cost demands (people who don’t put much of a burden on the city)
2) high revenues (valuable properties)
Means you don’t want poor, elderly, lots of children because they require lots of
public revenue, but don’t contribute that much. So the goals are not horrible;
they are driven by how local governments are financed—property taxes
Seen in small, developing communities mostly. Why is it easier in a smaller
area?
--transaction costs
--homogenous area—easier to organize
--owners of undeveloped land don’t usually live in the area
--larger areas are normally dominated by special interest politics,
heterogenous, not very organized.
Devices of exclusionary zoning
 probably wouldn’t set income minimums, too blatant
 ban on mobile homes
based on property values, most places aren’t upholding them anymore
 large lot zoning—ex. 5 acre minimums
upheld in some cases
environmental argument
 minimum housing cost
not upheld anymore
 minimum house size
proxy for cost, not upheld too much
would have to relate to occupancy
 minimum setback
limit density
see pg181-183 in notes
Southern Burlington Co. NAACP v. Township of Mount Laurel (pg1061)
Rd the Tiebout hypothesis pg1087
Growth Control Model—very similar to exclusionary zoning one. Aim is to preserve
environment, so hard to overturn judicially. Works the greatest hardship on affluent
(why?). If you can control growth, lot will go up in price because no supply, lots of
demand.
Is zoning a good thing? pg1089
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XI.
THE PROBLEM OF TAKINGS (pg1101-1216)
A. The Power of Eminent Domain: Sources and Rationales
Eminent Domain—
The fifth amendment says, ”nor shall private property be taken for public use, without
just compensation”
Explicitly—condemnation action brought by the government
Implicitly—regulatory taking--ex. Ambler
Why does government need the power of eminent domain?
1) holdouts
2) assembly problem
Raises two questions:
1) Why not private parties too? They have to assemble lands
2) Why should government be able to do it on one lot?
At federal level, very deferential—any declared public use will do. State courts are less
deferential.
Just compensation = Fair Market Value (what a willing buyer would pay a willing
seller)
But unfair because:
1) FMV will always undercompensate.
2) Unfair because not getting anything extra for being forced to sell.
See the diagram on pg186 for why FMV will undercompensate.
K: likes the idea of a bonus (ex. Canada)
In a condemnation hearing—what are the issues to be resolved?
1) public use
2) just compensation
3) is it private property
4) whether it is a taking (if so what should be the remedy? A property rule or a
liability rule?)
Condemnation Procedures—see pg1124
Criteria:
1) fairness—distributive justice
2) efficiency
PUBLIC-USE
Two views on what is a public use:
1) means advantage or benefit to the public (broad view)
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2) means actual use or right to use of the condemned property by the public
(narrow view)
Merril’s argument (pg1113)—Courts always look at the end (is it a public end?); they
should look at the means. Ends are 1) boundless, 2) courts aren’t good at questioning
the end. Means test: Is the power necessary to accomplish a given end or can the government
go through the market?
Hawaii Housing Authority v. Midkiff (pg1106)—
Poletown Neighborhood Council v. City of Detroit (pg1116)—
City of Oakland v. Oakland Raiders (pg1120)—
Note on just compensation—pg1121
PHYSICAL INVASION
Per se rule—If the regulation works a permanent physical invasion by government or
its agents, there is a taking.
If temporary, then a balancing test.
Loretto v. Teleprompter Manhattat CATV Co. (pg1124)—Most people thought they
were going to overturn the physical test, but upheld it. And most think that was
wrong. Cost to owner is zero.
 Dissent says that the line between temporary and permanent is a proxy for
the degree of burden on the property owner, but it is stupid one. Why not
just assess the burden?
Fly over hypo—pg190
REMEDYING NUISANCE
If controlling a “nuisance-like” thing, then no compensation. (Compare to Lucas, which
says, ‘if a regulation essentially wipes out value then there is a taking unless the activity
is a common law nuisance. If not a complete wipe-out in value, the government can
justify controlling nuisance-like activities’)
Hadacheck v. Sebastian (pg1140)-- owned a brickyard outside LA. Annexed into LA,
and then considered a nuisance. (reminds us of Spur). Court said he could pull the clay
out, but not make the bricks onsite. Unfortunately, that is way too expensive for him to
do.
Wetlands example—pg192
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See the Fruend quote, pg1145
No efficiency questions in the nuisance test, but there are fairness questions.
It is one thing to say no compensation if a bad thing if there is consensus on what is bad.
But if there is no consensus, then it seems very unfair.
DIMUNITION IN VALUE TEST
If the government regulates something that isn’t a nuisance, if the regulation diminishes
the value of the property too much, it is a taking. It is a question of degree.
Pennsylvania Coal v. Mahon (pg1147)
Keystone Bituminous Coal Assoc. v. DeBenedictis (pg1157)
Penn Central Transportation Co. v. City of New York (pg1159)
TDR’s
First English Evangelical Lutheran Church of Glendale v. County of LA (pg1168)
CONDITIONS—NEXUS TEST
Nollan v. California Coastal Commission (pg1181)
ROUGH PROPORTIONALITY TEST
Dolan v. City of Tigard (pg1186)
Lucas v. South Carolina Coastal Council (pg1198)-- if a regulation essentially wipes out
value then there is a taking unless the activity is a common law nuisance. If not a
complete wipe-out in value, the government can justify controlling nuisance-like
activities
Academic Perspectives
Heller and Krier’s Article
My notes say:
“A possibility of reverter is a reversionary interest, but a rt. of reentry is not”—what
does that mean?
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