Property Fall 2003 Outline
Anisa Abdullahi
Introduction
I.
Perspectives on Property Law
a. Definitions of property
i. Blackstone: Property is a right which consists of “the free use, enjoyment, and disposal of all his
acquisitions, without any control or diminution, save only by the laws of the land.” (Property is a
right)
ii. Restatement (First) of Property (1936): The word “property” denotes “legal relations between
persons with respect to at thing.” (Property is a thing, tangible or intangible)
iii. Cohen: Property is a “bundle of sticks, with each stick representing some separable aspect of the
total.” Property is “a number of different aspects of control which may be examined separately.”
b. Classic perspectives on property
i. Occupation theory: Acquiring property by taking possession of that which belongs to no man
(res nullus—things which have not have never had an owner)
ii. Natural law theory: Property is a natural right of man, necessary because man will care for what
is his, it creates order, and ensures a peaceful state if each man is contented.
iii. Labor theory: Whatever man puts his labor into becomes his property as he has added
something to it beyond nature.
iv. Utilitarian theory: Property serves the function of maximizing the utility, or wealth, of
individuals and it is created through law.
v. Economics theory: Property ownership defined in economic terms—benefit of society.
II.
Right of Publicity
a. Definition: Right to control use of one’s own name, picture, or likeness and to prevent another from using
it for commercial benefit without one’s consent.
b. Purpose: Developed to protect the commercial interest of celebrities and their identities.
c. Cases:
i. Elvis Presley International Memorial Foundation: EPIMF wanted to have a trauma center
using Elvis’s persona, but court recognized a right of publicity that lasted even after his death.
ii. Maritote v. Desilu Productions: Capone’s wife and son sued D for appropriation of his “name,
likeness, and personality” in a commercially televised fictional broadcasts after his death, but
court said his family’s right had not been invaded because they were not mentioned in the stories.
iii. Midler v. Ford: Ford used Midler’s backup singer as an impersonator in a commercial and the
court said (only) when a distinctive voice of a professional singer is deliberately imitated to sell a
product, an appropriation has occurred.
d. Scope of right of publicity
i. Does not mean that no one can use name in public sense without permission—need common
usage without worrying about infringement
ii. Prevents unjust enrichment
iii. Protection for famous (not infamous?)
iv. Right may be descendible depending on the jurisdiction; more and more states are moving
towards recognizing that a persona survives death
v. Prevents public confusion about endorsement; quality control and authenticity
vi. Does not extend to dramatizations or parodies of celebrities—not the same as selling merchandise
vii. Recognize contract rights of those authorized to use it
viii. May be diluted for public figures (First Amendment right of press)
e. Society’s losses in making the decision to protect right to publicity:
i. Limits the freedom of others
ii. Limits “good” uses (like the Elvis trauma center)
iii. Limits creativity (SNL, Halloween costumes, etc.)
iv. Anti-egalitary (not everyone gets protection)
f. May be a privacy issue rather than a financial or commercial uses issue; but courts have only protected
the persona in cases where it was done for financial gain.
g. Think about the right to publicity or a persona as dealing with the “exclusivity” stick in the bundle.
h. Factors to think about when distinguishing cases and deciding if the persona should be protected:
i. Economic loss
III.
ii. Whether it’s a parody
iii. If there’s disclosure of who is actually doing it
Types of Rights to Property
a. Different rights: possess, use, manage, income, consume, destroy, modify, alienate
b. Artists’ rights
i. VARA—Visual Artists Rights Act of 1990
1. Covers only visual art
2. Gives rights to artist only for life (Unlike Elvis who has right to persona for life,
depending on jurisdiction)
3. Three rights given to artist
a. Right of attribution
b. Right of integrity
c. Right to prevent destruction in cases of art of “recognized stature”
4. Copyright registration is not required to bring an action for infringement
5. Only applies in cases where there are less than 200 copies
6. Does not apply to artists who do their work for hire
7. Protects individual and society
a. Artist gets to preserve his work and authorship
b. Society gets to preserve well-known and important art
8. But owners of art lose some rights in the process because they can no longer do what they
want with their property (lose some of the sticks in the bundle)
ii. Case:
1. Carter v. Helmsley-Spear: D wanted to remove P’s sculptural installation in the
building they bought but court found the art was a work for hire and the artists would not
be protected under VARA and refused an injunction.
c. Law and economics
i. People take economics into account when thinking about property
ii. Utility and Scarcity:
1. Scarcity: The scarcer something becomes, the more likely it is that a community will
recognize it as property.
2. Utility (or wealth): A measure of the value a person attaches to a particular good,
service, or activity
a. Revealed preference: In market exchanges, when a price is paid for goods or
services, it reveals the parties’ preferences. The buyer values the goods more than
the price and the seller values the price more than the goods. Each have increased
their utility
b. Marginal utility: Idea that a person’s desire for particular goods or services
often varies according to that person’s existing ownership or consumption of the
commodity in question. Usually declines as the person acquires more of the
commodity.
c. Utility (or wealth) maximization: Idea that utility is a good thing and so it
should be maximized. Therefore a choice is said to be efficient if it maintains or
increases utility.
d. Consumer sovereignty: Each person should be able to judge his own best
interest or utility. (Idea of the “invisible hand”)
iii. Theories of efficiency
1. Both focus on how a person’s decision may affect other members of society—these
impacts are called externalities
a. Negative externalities refer to costs imposed on others by the action in question
b. Positive externalities refer to benefits others would receive from the action
c. Externalities tend to induce inefficient decision making because the selfinterested rational actor will make decisions that seem efficient to him, but which
are not efficient for the community
2. Pareto efficiency:
a. A change in the status quo is Pareto efficient or superior if it makes at least one
person better off and no one worse off
b. If no efficiency-enhancing changes are possible, the situation is said to be Pareto
optimal
c. A tough standard to meet
3. Kaldor-Hicks efficiency:
a. A change which increases the society’s aggregate utility—total gains exceed total
losses.
4. Governments usually work towards Kaldor-Hicks efficiency
iv. Situations that trump efficiency standard:
1. If the loss to others would be unfair
2. Net gain might not be worth the loss
a. Example: Lower water fountains for people in wheelchairs; doesn’t matter if they
are too low for others because we are concerned with the disabled having a fair
chance to use them
d. Voting rights
i. The right to vote is a form of property, yet every state limits rights to sell it
1. If vote buying is allowed:
a. People buying will be wealthy and people selling will be poor—thus the
government will represent only those with money
b. Seems morally wrong
c. Not equal if some have more than one vote—inequitability
ii. Betting on elections: Not allowed because we don’t want to motivate people to fix the election in
order to win a wager.
iii. Case:
1. McClurken v. Detrich: A bet was made on an election in exchange for stocks which was
prohibited by law. Court ruled D could not be held to fulfill the bet since it was illegal.
e. Right to exclude
i. Most fundamental right in the bundle of sticks
ii. Common-law rule for innkeepers: Can exclude particular guests in particular situations.
1. Protects innkeeper’s business, facilitates travel and the economy
iii. Common-law rule for home: Can exclude any one for any reason
iv. Case:
1. Raider v. Dixie Inn: Innkeepers threw out guest who was a prostitute in another town.
Court ruled that they had made her leave in a proper manner and had a right to do so
because of a reasonable belief that she was of a “bad reputation,” which was a reason
provided for in the statute allowing them to exclude her.
Personal Property
I.
Real v. Personal Property
a. Real property
i. Traditional English definition: Property for which the owner could obtain specific relief, the right
to get the thing back from the wrongful possessor
ii. Modern usage: Rights associated with land.
b. Personal property
i. Traditional English definition: Property for which the owner could only get an action for damages
ii. Modern usage: Rights associated with movable things (chattels or goods) and intangible rights
not associated with land
c. Certain items change between being real and personal depending on their attachment to the land
i. Improvement: The transformation from goods to part of real property (i.e. a building, driveway,
stone wall)
ii. Fixtures: Items which are attached to the land or a building; legally part of the real property for
at least some purposes
iii. Mobile home example—being on wheels versus having a concrete foundation
iv. Timber is real property even though it keeps growing (unlike grain)—but if it is cut down before
a transfer of the property, the seller can likely keep it
d. When buying land, some things on the land might be included while others might not be:
II.
III.
i. Test: If a reasonable person would assume something was included, the seller should put it in the
contract if otherwise. But if it is not assumed to be included, the buyer should provide for it in the
contract.
ii. One factor might be whether it was there when the buyer toured the land.
e. Case:
i. Wood v. Wood: Husband gave wife warranty deed to wife for land with corn crop standing on it,
she sold it for profit, and he wanted to recover the money she made, and the court decided that
although crops growing on land typically transfer with the deed, this crop was matured at the time
of the conveyance and was personal property which did not pass with the deed.
Finders
a. Rule for finders: A finder has right to property against all but the true owner.
i. Cases:
1. Armory v. Delamirie: D took stones from jewel found by P. Court ruled that as a finder,
the boy was able to keep it from everyone but the rightful owner.
2. Bridges v. Hawkesworth: P found package in D’s store and wanted to get it back after
no one claimed it. Court ruled P had a right to the package against anyone but the true
owner even though it was inside D’s store as he only found out about it through P.
b. Terminology:
i. Writ of replevin: Action for the repossession of property wrongfully taken or detained by D
ii. Writ of trover: action for recovery of damages for the conversion of personal property
iii. Conversion: (More modern heading, largely replaced trover and replevin) An act of dominion or
control that is inconsistent with the owner’s rights (i.e. D’s wrongful taking, using, detaining,
destroying, or selling P’s property)
c. Historical reasoning said that property ownership was defined by what you could prevail in court on
d. General rule for finding on private property: If the landowner is in control of the land, then he is
entitled to the property that is found on it.
i. Cases:
1. South Staffordshire Water Co. v. Sharman: D found gold rings in the mud while
cleaning P’s pool. Court ruled P had possession and control over the land upon which the
rings were found and so the presumption was that they belonged to P even though they
were not aware of their existence.
2. Hannah v. Peel: P found brooch in D’s house, in which he never lived. Court ruled that a
man doesn’t necessarily possess a thing which is lying unattached on the surface of his
property—he may possess everything on the land from which he intends to exclude
others or of which he has actual (de facto) control—and found for P.
e. Rule for mislaid property: Still in constructive possession of the true owner and the right of possession
as against all but the true owner is in the owner or occupant of the land
f. Rule for lost property: Can be retained by the finder even if found on the premises of another.
g. Rule for treasure-trove: Traditionally treated as lost property with finders’ rights under the common
law. But, if the finder was trespassing at the time, it disqualifies his right to ownership.
i. Treasure-trove is not lost or mislaid, but put there for safekeeping by the owner.
ii. Case:
1. Morgan v. Wiser: D found old coins on P’s property with a medal detector. Court ruled
that where property is found embedded in the soil under circumstances repelling the idea
that it was lost, the finder acquires no title.
h. Maritime law of salvage: Original owners retained ownership of the lost item, but salvagers were
entitled to a generous reward for recovery (not applied to this case)
i. Case:
1. Columbus-America Discovery Grp. v. Atlantic Mutual Insurance: P found a sunken
ship with a lot of gold on it. Court ruled as long as the property had been abandoned by
the previous owners, P could gain title through law of finders.
Bailees
a. Types of Bailments:
i. Voluntary Bailment: A delivery of personal property by one person (bailor) to another (bailee)
who holds the property for a certain purpose under an express or implied-in-fact contract.
(Change in possession, not in title)
IV.
ii. Constructive Bailment: One arising where the person having possession of a chattel holds it
under such circumstances that the law imposes upon him the obligation to deliver it to another.
Conditions satisfied by voluntary acceptance of possession by one who expects some reward for
service (also called quasi-bailment).
iii. Divisible Bailment: One where the bailee is only responsible for the portion of the bailment that
was foreseeable (i.e. in Caranas case, if they had been responsible for only the purse and not the
jewels inside)
iv. Involuntary Bailment: One arising when a person accidentally, but without any negligence,
leaves personal property in another’s possession. As long as he remains involuntary, he is not
under the slightest duty to care for it, but if he exercises any dominion over it, he becomes
responsible as if he were a voluntary bailee.
b. Traditional rule:
i. A bailment for the sole benefit of a bailee (possessor) put him under a duty to exercise
extraordinary care—bailment for hire.
ii. A bailment for the sole benefit of the bailor (owner) put the bailee under a duty to exercise slight
care (liable only for gross negligence)—gratuitous bailment.
iii. A bailment for the benefit of both the bailor and the bailee put the bailee under a duty to exercise
ordinary care—mutual-benefit bailment.
c. Modern trend (?) Minnesota rule: Ordinary care should be followed in every case without the former
distinctions between slight, ordinary, and great care.
i. Note that the overall evolution of law is toward more complexity and chaos as there are more
rules and more exceptions to established rules.
d. Cases:
i. First American Bank v. D.C.: City and towing company towed car with bank bags in back, one
of which turned up missing. Court ruled it was a bailee for hire and owed a duty of extraordinary
care.
ii. Shamrock Hilton Hotel v. Caranas: When a couple left a purse containing expensive jewelry in
hotel restaurant, which gave it to wrong guy, it constituted a constructive bailment. Court ruled
the hotel owed them the duty of reasonable care because of the mutual benefit of the bailment to
the hotel and its patrons, and thus it was liable for ordinary negligence
e. Common-law rule for misdelivery: If a possessor of goods, such as a finder, delivered property to a
third person whom he reasonably believed to be the true owner—but was mistaken—he became liable to
claims by the true owner. (strict liability rule)
i. Exception: If bailor gives authority to pick up the property and that third party runs off with it, the
bailee is not liable for misdelivery
f. Bailee has to get over the presumption of negligence in the Shamrock case.
g. Note that these are default rules that can be contracted around if the bailor wants the property to be
protected beyond just ordinary care, etc.
Bona Fide Purchasers
a. Doctrine of BFP is a limited exception to the general rule that a person cannot recover better title than he
has. Under this doctrine, the BFP gets a better title than his seller had.
b. Purpose is to resolve the problem of the ostensible owner who appears to have title but only has
possession and thus can mislead a third party. BFP doctrine puts confidence in the market.
c. Problem is both the true owner and the BFP cannot be protected and thus when the BFP is protected, the
true owner is stripped of title and relegated to a cause of action against the scoundrel (who may not be
known or found).
d. UCC § 2-403:
i. (1) A purchaser of goods acquires all title which his transferor had or had power to transfer
except that a purchaser of a limited interest acquires rights only to the extent of the interest
purchased. A person with violable title has power to transfer a good title to a good faith purchaser
for value. When goods have been delivered under a transaction of purchase the purchaser has
such power even though
1. (a) the transferor was deceived as to the identity of the purchaser, or
2. (b) the delivery was in exchange for a check which is later dishonored, or
3. (c) it was agreed that the transaction was to a “cash sale,” or
V.
4. (d) the delivery was procured through fraud punishable as larcenous under the criminal
law.
ii. (2) Any entrusting of possession of goods to a merchant who deals in goods of that kind gives
him power to transfer all rights of the entruster to a buyer in the ordinary course of business.
iii. (3) “Entrusting” includes any delivery and any acquiescence in retention of possession regardless
of any condition expressed between the parties to the delivery or acquiescence and regardless of
whether the procurement of the entrusting or the possessor’s disposition of the goods have been
such as to be larcenous under the criminal law…
e. Terms
i. Void title: Null, no effect.
ii. Voidable title: Valid until annulled, capable of being affirmed or rejected at option of one of
parties.
iii. Good title: Legally valid.
iv. Good faith purchaser: Purchaser who has honest belief in fact. Test is the actual belief of the
party and not the reasonableness of that belief.
f. Basic rule for voidable title: Can transfer title to a BFP if you have voidable title obtained through a
voluntary transaction of purchase.
g. Basic rule for void title: Cannot transfer title to a BFP if you have void title obtained when the owner
did not intend to pass title or did not have the power to pass title.
h. Cases:
i. Kotis v. Nowlin Jewelry: Man bought Rolex with fraudulent check, sold to another man, who
called store and lied about why he was inquiring about first man’s purchase. Court ruled that a
transaction of purchase had to be voluntary, voidable title could be obtained through fraud, and a
transferor with voidable title could transfer title to a good faith purchaser. Since second man was
not a good faith purchaser, he did not obtain title.
ii. Charles Evans BMW v. Williams: Swindler bought car with fraudulent check, owner signed
title, and swindler represented himself to be title owner and sold it to dealer. Court ruled that
swindler had voidable title through a voluntary transaction of purchase, the dealer was a BFP for
conducting itself within the reasonable commercial standards of fair dealings of the trade, and
thus the dealer obtained good title. (OCGA ?)
iii. Market overt (happens in England, not in the U.S.): An open market in which a true owner
wouldn’t have a chance to bring suit against a BFP for his stolen goods. Only allows the true
owner to pursue the thief.
Gifts
a. All gifts are either testamentary (by will) or inter vivos (made by the donor during her lifetime)
b. Terms
i. Life estate: Divides ownership of property over time between present possessor (donor) and
owner of a future interest (donee)
ii. Future interest: Conceptualized as presently owned, even though the owner’s right to possession
is deferred until death of the life tenant,
iii. Remainder interest: Current gift to take effect at owner’s death—effective (distinction: a
promise to make a gift in the future at owner’s death is not valid)
iv. Gift causa mortis:
1. At the time of alleged gift, decedent intended to make a gift
2. Decedent apprehended death (can be implied)
3. The res (thing) of the intended gift was either actually or constructively delivered
4. Death actually occurred
a. Note: Some courts allow for this in suicide situations, some don’t.
b. If donor changes his mind before death and communicates it, he can take it back.
But it must be a present gift.
i. Proper intent: “It’s yours..but if I recover, I can have it back.”
ii. Bad intent: “If and when I die, it is yours.”
c. Inter vivos gift
i. For personal property, law requires delivery of the subject matter to the donee (usually physical
transfer of possession).
ii. Must be unconditional
VI.
iii. To test if there is an inter vivos gift, look for intent and delivery
1. Intent of donor to make a present transfer
a. If intent is to make a testamentary disposition effective only after death, the gift
is invalid unless made by will.
2. Delivery can be actual, constructive, or symbolic
a. Constructive delivery: Act that amounts to a transfer of title by operation of law
when actual transfer is impractical or impossible; gives the donee the means of
taking possession (like keys)
b. Symbolic delivery: By instrument (like letters); might not be sufficient to let the
donee go forward and get possession of the object
c. Delivery is required so the donor has a chance to think about what he is doing,
leaves no doubt as to what the donor is doing, and it is prima facie evidence of a
gift.
3. Proponent of gift has burden of proving these elements by clear and convincing evidence
d. Cases:
i. Simpson v. Simpson: Father told son on fishing trip he could have his guns, but son did pick
them up or make arrangements to get them before father passed away. Court ruled although there
was evidence of intent, there was no evidence of delivery and thus the guns were not an inter
vivos gift.
ii. Gruen v. Gruen: Father sent several letters to son about giving him Gustav Klimt painting after
his death, thereby reserving a life estate for himself. Court ruled that there was intent to make a
present transfer of title, delivery was not necessary for a gift of remainder interest, and the son
had clearly accepted the gift.
iii. In re Estate of Smith: Man wrote checks to family members and gave one option of buying his
Corvette at a price before killing himself, but wife wanted money back from recipients and
refused to sell car. Court ruled the checks were intended gifts that had been delivered and the
option to buy was a direct gift as well. (gifts causa mortis)
e. Engagement rings
i. Fault-based v. no-fault approach
1. Fault-based: The person not at fault for the end of the engagement gets the ring
regardless of who gave it as a gift.
2. No-fault:
a. Gift given on a condition: Upon non-occurrence of the marriage, the ring goes
back to the guy who gave it
b. Gift given without implied or express condition: Cannot be revoked after it is
given as a gift
ii. Cases:
1. Lindh v. Surman: Man wanted engagement ring back after break-up with fiancé. Court
elected not to use a fault-based approach because it would be too difficult to ascertain
whose fault it was and gave the ring back to the man. (said it was a conditional gift)
2. Albinger v. Harris: Man wanted engagement ring back after break-up with fiancé. Court
ruled an engagement ring was a gift given without implied or express condition and thus
not revocable by the donor.
Adverse Possession of goods or chattels
a. Doctrine that determines when the statute of limitations has expired so that the owner of property is
barred from filing an action; describes the status of property rights in the object after expiration of the
statute. (usually dealing with land)
b. Falls in line with the idea that property ownership is defined by the cause of action you can sustain—no
cause of action, no ownership
c. General elements for adverse possession to chattels: Possession must be hostile, actual, visible,
exclusive, and continuous
d. Discovery rule: A cause of action will not accrue until the injured party discovers, or by exercise of
reasonable diligence and intelligence should have discovered, facts which form the basis of a cause of
action. Factors:
i. Did P use due diligence to recover property?
ii. Was there an effective method for P to get out word or try to recover?
iii. Would method put others on notice of P’s assertion of title?
e. Cases:
i. Chapin v. Freeland: Store owner’s counters were left outside, taken by another, and nailed to the
floor of his shop. Court ruled the statute of limitations had run and thus the original owner had no
cause of action, which was the same as loss of title.
ii. Keim v. Louisiana Historical Association Confederate War Museum: A Civil War flag was
supposedly stolen from a museum and passed through several hands. Court ruled that the
possession period of ten years required by the AP statute had been met and the original owner had
been aware of its injury.
iii. O’Keefe v. Snyder: Artist filed action over 20 years after three paintings were stolen, but had
told anyone about it nor tried to recover them before. Court ruled she had to use due diligence to
recover them if there was an effective method and since she didn’t and the statute of limitations
had passed, she lost title.
Takings
I.
II.
III.
Overview
a. Most of the time the government negotiates to buy property from a willing buyer.
b. Takings come into play when the government wants to buy property that an owner doesn’t want to sell or
when the government’s actions substantially impair the utility and value of the property to its owner.
c. Fifth Amendment: “nor shall private property be taken for public use, without just compensation.”
The Power of Eminent Domain
a. Eminent domain: The inherent power of a governmental entity to take privately owned property, esp.
land, and convert it to public use, subject to reasonable compensation for the taking (fair market value)
b. Policy reasons for allowing this power:
i. One citizen should not be able to stop the government from doing something necessary for the
overall population. (i.e. building a road which crosses one lot that won’t sell)
ii. The last seller could hold out for an extreme sum—hold-out theory
c. Public purpose: Can be a public use or public benefit
d. Cases:
i. Poletown: Detroit wanted to condemn a residential neighborhood so that GM could build a plant
there. Court ruled that the government could not transfer property from one private owner to
another even if there was a good purpose for it like creating jobs.
ii. City of Oakland v. Oakland Raiders: Raiders wanted to move to another city and Oakland
wanted to exercise its power of eminent domain to keep it. Court ruled that generally a municipal
corporation has no inherent power of eminent domain and can exercise it only when expressly
authorized by law—statute allowed it to be exercised for public use such as recreation—and it
was thus remanded to determine whether there was a proper public use.
iii. Aaron v. Target: Target wanted to get a ground lease from the owners of the real property on
which the store stood, eventually inducing the city to exercise eminent domain, condemn the
property, and turn it over to Target for redevelopment. Court ruled that a person’s property can’t
be taken for the benefit of another private person without a justifying public purpose, which was
the case here. (Incidental private gain would have been okay otherwise)
iv. U.S. v. 564.54 Acres of Land: U.S. initiated condemnation proceedings to acquire three
nonprofit summer camps from a church who wanted more than fair market value because new
facilities would cost more to build than the original. Court ruled that the owner must be made
whole and only in cases where he has a duty to maintain his facility is more than fair market
value required—found for U.S.
e. Comparable property: When determining fair market value, realtors (experts) look at property which is
similar in structure, size, geographic features, proximity to other property, etc.
f. Replacement value: When the government obligates the owner to replace the condemned property he can
get the amount it will take to replace the property (possibly more than fair market value)
What Constitutes a “taking”?
a. Physical takings: When the government is physically interfering with the property.
i. Case:
ii. Loretto v. Teleprompter Manhattan CATV: NYC authorized cable company to install boxes
and wiring in apartment building. Court ruled it was a taking by physical entry requiring
compensation.
b. Regulatory takings: When the government has acted in a way that triggers a compensation requirement
even though the private owner retains title to the property; such as by limiting its use
i. Factors to take into account when determining if it’s a taking:
1. Economic impact of regulation on claimant—interference with investment-backed
expectations
2. Character of the governmental action—If it is a physical invasion versus promoting the
common good through some public program
ii. Cases:
1. If there is little value left, it is not a taking:
a. Hadacheck v. Sebastian: Owner of land with valuable clay could not conduct
brick factory because of city ordinance that affected him after he bought
property. Court ruled the police power of the state could not be arbitrarily
executed and must be for some public purpose and this ordinance was valid
because it was for health reasons and did not deprive owner of all use of the
property (could still get clay).
2. If the regulation goes too far in interfering with its use, it is a taking:
a. Pennsylvania Coal Co. v. Mahon: The company wanted to remove coal from
under land it had conveyed to others and had reserved mineral rights, but an
ordinance forbid such mining. Court ruled when a regulation goes too far it will
be a taking (and since the surface owners knew mining would occur—didn’t need
protection) it was a taking requiring compensation.
3. If there is still some economic use left, it is not a taking:
a. Penn Central v. NYC: PC wanted to construct a 55-story office building on top
of Grand Central Station. Court ruled that factors such as the economic impact of
the regulation, character of the action (physical invasion), and whether it was just
a zoning law should be taken into account, and found that the law did not
interfere with use of the terminal and was not a taking.
4. If there is no economic use and the land is rendered valueless, it is a taking:
a. Lucas v. S.C. Coastal Council: Lucas’s property was rendered valueless after
the Beachfront Management Act barred him from erecting any permanent
habitable structures on two parcels of land he had bought for single-family
homes. Court ruled it was a taking because he had been deprived of all
economically beneficial use.
5. If it has a temporary effect and does not really affect the value of the land, it is not a
taking:
a. Tahoe-Sierra Preservation v. Tahoe Regional: People wanted to build houses
on the lake, but moratoria enacted to preserve the basin for 32 months prevented
them from doing so. Court ruled that it was not a taking based on considerations
of fairness and justice adopted in Penn Central.
6. If the value of a trade secret is taken away for no great public purpose, even though the
formula itself still has some value, it is a taking:
a. Philip Morris v. Reilly: Massachusetts regulation required tobacco
manufacturers to tell ingredients of products for public disclosure. Court ruled
that the disclosure act caused the companies to entirely lose their trade secrets by
no convincing public policy rationale to justify it and thus was a taking.
7. If there is a related reason to limiting development based on some condition, it is not a
taking:
a. Dolan v. City of Tigard: Owner wanted to redevelop her site and a permit was
granted on the condition that she dedicate a portion of it for a storm drainage
system and pedestrian/bicycle path. Court ruled the government may not require
a person to give up a constitutional right (compensation in this case) in exchange
for discretionary benefit conferred by the government where the benefit sought
IV.
has little or no relationship to the property, and thus it was a taking requiring
compensation.
Takings Policy (William Treanor)
a. Courts have not offered a coherent vision of when compensation is required.
b. Armstrong v. United States said the Takings Clause is “designed to bar Government from forcing some
people to alone to bear public burdens which, in all fairness and justice, should be borne by the public as a
whole.
c. Ackerman’s book Private Property and the Constitution:
i. Physical: Layman understands the word “property” to fundamentally refer to tangible, physical
possession and the word “take” to fundamentally refer to physical seizures.
ii. Destruction: Layman also describes his property as having been taken when the government
destroys it.
iii. Use: Laymen also describes his property as having been taken with the government has rendered
it useless.
d. Treanor says there is an additional category of takings consists of cases in which unanticipated
regulations destroy a significant portion of the total assets of a property owner. Compensation statutes
should ensure payment in these cases where the total net worth of the property is dealt a disproportionate
blow. Focuses on harm to the owner rather than harm to the property.
Protecting Possession
I.
Trespass and the Right to Exclude
a. The core of ownership of land is the right to exclusive possession. Implicit in the right to exclude is the
right to include.
i. The cause of action for trespass to land defines the boundaries of the right to exclude—thus a
landowner has the right to exclusive possession to the extent that he can prevail in court based on
a theory of trespass.
ii. Case:
1. Jacque v. Steenberg Homes: D moved mobile home across P’s land without his
permission, but causing slight/no damage. Court ruled that punitive damages could be
awarded to P because the actual harm was to his right to exclude others from
intentionally trespassing.
b. Nuisance v. Trespass
i. Traditional rule for trespass: Required a direct or immediate invasion of land by a physical,
tangible object (recent rules have somewhat changed this to possibly include dust and noise)
ii. Traditional rule for nuisance: Required proof of actual and substantial injury due to a
disturbance of owner’s right to enjoy his land
iii. Case:
1. Adams v. Cleveland-Cliffs Iron Co.: P claimed air particles and noise were invading
property from D’s mine. Court ruled that since the dust was intangible and not a
significant physical intrusion, P could not recover.
c. Excluding canvassers and solicitors
i. Tailored to purpose: If the ordinance is not fulfilling the alleged purpose, it is not valid.
ii. Case:
1. Watchtower Bible v. Village of Stratton: A village ordinance prohibited canvassers and
others (including P) from going on private land without a permit. Court ruled the
ordinance was invalid because it was not specifically tailored to the stated interests such
as crime and fraud prevention.
d. Electronic exclusion
i. Rule: Must be some kind of bad impact or impairment in order to recover
ii. Case:
1. Compuserv v. Cyber Promotions: D was sending Spam to P’s email inboxes. Court
ruled that electronic signals are sufficiently tangible, D deprived or evicted P from
property, and harm was caused to P’s subscribers and reputation. Thus, it was a trespass.
II.
Adverse Possession of real property
a. Recording system for real property is made up of public records of instruments that affect title to land.
The primary function is title assurance to a tract of land—Blackacre. The set of recorded documents,
however, is only evidence of title.
i. AP strengthens the record titles by barring potential claims of persons how are not in possession
of a parcel of land after a specified period of time has elapsed, provided that certain conditions
are met.
ii. AP weakens the recording system by modifying the true boundary line, reflected by deeds and
other records, to conform to the parties’ long-standing possession and use.
b. Public policy for AP: Title to land should not be in doubt for long. Society benefits from someone making
use of land if the owner leaves it idle. Protects a third person who regards the occupant as the owner.
c. Typical elements: to put ordinary prudent person on notice
i. Actual
ii. Uninterrupted, continuous
iii. Open and notorious—so true owner will learn and protect his rights
iv. Hostile—claimant must treat the land as his own (there is none if the true owner gives the
claimant or his predecessors permission to occupy)
v. Exclusive
vi. Under a claim of right made in good faith: State of mind—split of authority
1. Subjective intent (minority rule)
a. Good faith (Georgia)—Under a claim of right made in good faith, mistaken
b. Intentional wrongdoer (Maine)—Must have intent to claim adversely, can’t be
mistaken
i. Public policy argument: Do we want to reward bad intent? On the other
hand, then people can just claim they were mistaken.
d. Minor encroachment: No presumption that knowledge arises from a minor encroachment along
common boundary. Only where the true owner ahs actual knowledge may it be called open and notorious.
e. Privity: A relationship of common interests or common legal rights.
i. Requirement of privity has roots in the notion that succession of trespasses, even though no
appreciable interval between them, should not in equity be allowed to defeat record title.
ii. Prevents squatters from tacking for AP purposes because it looks for good faith possessors and
some legal context (like a deed).
iii. Normally privity exists only for what the deed describes
f. Continuity of possession—can depend on the type of property (i.e. a summer house would not be
expected to be occupied all 12 months of the year)
g. Tacking in three types of cases:
i. Deed and possession are equal (identity)—tacking allowed
ii. Deed doesn’t include all of the possession (overlap)—tacking allowed
iii. Deed doesn’t include any of the possession, but rather the adjacent land—Howard v. Kunto court
allows tacking
h. Can have multiple AP winning common ownership. Each would get a percentage of ownership of the
land.
i. Cases:
i. Howard v. Kunto: Error in deeds resulted in neighbors each being on the next neighbor’s
property. Court ruled tacking of AP is permitted if the successive occupants are in privity, such
connection existed, and thus AP had been established.
ii. Mannillo v. Gorski: D’s sons made changes to her house, including concrete steps, which
extended 15 inches on P’s property. Court adopted Connecticut branch, ruling that it didn’t matter
if the possessor was mistaken because the very nature of the act of entry and possession is an
assertion of title and denial of title to others. But if the encroachment was minor, the owner is not
presumed to know and it is thus not open and notorious (remanded).
1. Main approach—subjective intent of D to take over another’s land
2. Connecticut rule—objective intent of D
iii. ITT Rayonier v. Bell: D claimed land adjacent to where he moored his houseboat, even though
he shared it with neighbors, did not put up “no trespassing” signs, and kept minimal structures on
III.
IV.
the land. Court ruled that D had not met the exclusive requirement of AP and that good faith was
no longer required.
iv. Halpern v. Lacy Investment Corp.: P made D’s land a part of his yard, knowing it was not his
and that D did not wish to sell. Court ruled that one cannot enter land without an honest claim of
right in order to obtain AP because that is a trespass which cannot ripen to prescriptive title.
Jus Tertii Defense
a. Defense saying that neither P or D, but rather a third party, is the true owner.
b. Also called doctrine of relativity of title—where a mere possessor may recover from a wrongdoer as if he
were the true owner. It only tells you who has “better” title.
c. Arguments for allowing it as a defense:
i. Series of thefts—If P cannot recover, then later thieves can steal from him, who can steal from
them, etc., etc.
ii. If D is allowed to win, the court is supporting a thief rather than a good faith purchaser (or
possibly another thief—back to series of thefts problem)
d. Cases:
i. Anderson v. Gouldberg: P claimed to have cut logs from a section owned by strangers, but D
claims the logs were cut from land owned by a company who directed D to reclaim them. Court
ruled P’s possession had to be lawful against the person who deprived him of it, and since the
jury decided it was cut from the stranger’s land, D was not acting under true owner’s authority
and P could recover. (P did not need to show title, only possession)
ii. Russell v. Hill: P was given permission to cut and carry off logs on property which was actually
owned by another due to grant errors, but D took possession of them while they were lying by the
river. Court ruled that P had to show both title and possession to recover, and since title was
actually in another party due to the grant errors, P could not recover. (P needed to show
possession and title)
iii. Tapscot v. Cobbs: P, who had no proof of occupation, was heir to owner who never paid entire
price of land which D took possession of without any pretense of title. Court ruled that P’s actual
possession was required but since there was no proof of the contrary and P had right as heir, the
presumed he had possession as well.
Mistaken Improvements
a. General rule: The true owner of a chattel who is out of possession retains his property rights, regardless
of subsequent transfers of the chattel and regardless of how subsequent possessors deal with the chattel.
b. Exceptions to the general rule:
i. When the statute of limitations runs out
ii. Under AP or the discovery rule
iii. Principle of mistaken improvements, also called the doctrine of title by accession, where a person
adds value to a chattel without the owner’s consent.
c. Blackstone’s rule: If a thing has changed into a different species, the product belongs to the new operator
who can in turn compensate the true owner.
d. Good faith: One cannot acquire title by accession unless he converts in good faith.
e. Inevitable misappropriation: Circumstances, like when an employee with knowledge of trade secrets
changes job, under which disclosure or use of the trade secrets may be inevitable.
f. Idea of estoppel: True owner cannot knowingly let the mistaken improver continue his activities and then
try to recover the improved property—he would be estopped from bringing suit
g. Cases:
i. Wetherbee v. Green: D cut timber in good faith, relying on permission from alleged true owner,
and converted them into valuable black-ash barrel hoops. Court ruled D’s labor had given the
timber nearly all its present value and title should thus go to him and P could recover for
unintentional trespass in turn.
ii. Isle Royale v. Hertin: P mistakenly went on D’s land, cut wood, and hauled it to the river bank,
after which D reclaimed possession and sold it. Court ruled that if one mistakenly appropriates
another’s property and expends labor in good faith on it, then he gains title and the original owner
can recover its pre-labor value. But since there was no great disparity between the wood in the
forest and that on the bank, a new trial was ordered.
iii. Hardy v. Burroughs: P built a house on lot owned by D, who was subject to an outstanding land
contract to another D that eventually took possession of the lot and house. Court ruled that where
V.
VI.
an occupant in good faith has made improvements and has been evicted by the true owner, he
may sue for the value of his improvements without reference to any fraud or other misconduct by
true owner.
Vertical Limits
a. Air
i. Traditional common-law rule: Ownership of land extends to the periphery of the universe.
ii. Federal statutes now define navigable airspace (including glide path)
iii. Ad coelum doctrine: land ownership extends indefinitely upward; traditional common-law rule
iv. Three theories of air space ownership that accommodate aviation:
1. Ad coelum—but aircraft are privileged to enter airspace as long as it is for a legitimate
purpose and done reasonably without interfering with the owner’s enjoyment (according
to Restatement of Torts)
2. Ad coelum—but ownership ceases at a certain height
a. Boundary can be fixed at minimum altitudes for aircraft
b. Boundary can vary according the owner’s use (through buildings, etc.)
3. Occupancy theory—rejects ad coleum in that landowner has no property rights in
airspace over his surface not subjected to his possession and control, extent of airspace
rights varies according to uses made of the property
v. Cases:
1. U.S. v. Causby: Planes’ takeoff and landing paths were immediately over P’s chicken
farm. Court ruled that if the flights rendered the property uninhabitable, it would be a
taking compensable under the Fifth Amendment, finding for the landowner because of
the interference with the use and enjoyment of the land.
2. Southwest Weather Research v. Rounsaville: Planes were seeding clouds to stop
hailstorms over farmland. Court ruled the farmers had a right to rainfall and the seeding
was interfering with the use and enjoyment of their land.
b. Earth
i. Traditional common-law rule: Owner of property entitled to free and unfettered use of land
above, upon, and beneath the surface.
ii. Rule of capture:
1. Pays no attention to where the minerals, oil, gas, etc. are coming from as long as the
drilling is properly occurring on property.
2. Lose property rights when oil and gas migrate under the land.
3. No liability for reasonable and legitimate drainage from a common pool.
iii. Ownership in place theory
1. Texas rule: Absolute ownership underneath the surface, but subject to risk of loss if
neighbor captures it properly and non-negligently.
2. Louisiana rule (minority): No one owns underneath the surface, just have an opportunity
to capture it for ownership.
iv. Case:
1. Elliff v. Texon Drilling Co.: Because of D’s negligence, well blew out and caused gas
and distillate to leak from reservoir underneath both D’s and P’s land. Court ruled that D
could not use rule of capture as a defense when they were negligent and allowed P
recover.
c. Caves
i. Traditional common-law rule: Property rights were based on mining law, running all the way
down to the middle of the globe.
ii. Case:
1. Edwards v. Sims: D discovered a cave entrance under his land and started tourist
business, but P wanted to sue for trespass because the cave extended under their land.
Court ruled that D could be restrained from using it until surveys could be complete
based on traditional rule that landowners own the land above, upon, and beneath the
surface.
Surface Changes
a. Most boundary lines of property are straight, but special rules have been developed to determine the
nature and extent of land ownership and adjacent to bodies of water.
b. Littoral property: Ocean-front tracts
i. Private ownership extends to the mean high-tide line.
ii. States own the land seaward of the mean high-tide line.
c. Riparian property: River-front tracts
i. Private ownership extends to the ordinary high water mark if the river is navigable.
ii. River beds are publicly owned (by states or federal government)
iii. Riverbeds of non-navigable rivers are susceptible to private ownership with grants conveying title
to the midline of the channel.
d. Terms
i. Accretion: Gradual imperceptible accumulation of land along the shore or bank of a body of
water (gains or losses)
1. Natural accretion—Property lines change over time with slow, gradual changes
2. Artificial accretion—Split of authority on whether boundaries change
ii. Reliction or dereliction: Increase of land by a gradual and imperceptible withdrawal of any body
of water
1. Property lines change over time with slow, gradual changes
iii. Avulsion: Sudden or perceptible increase or decrease of land by the action of water or sudden
change in the bed of a lake or course of a stream
1. Property lines do not change with sudden change (whether natural or artificial)
e. Occupancy theory: Taking possession of those things which belonged to nobody (i.e. movables on earth
or in the sea) or supposedly abandoned by the last proprietor and as such returned to common stock and
capable of belonging to the first occupant or finder.
i. Movables: Things that are not naturally part of the earth or sea but are on one or the other (i.e.
animals)
ii. Non-movables: Part of earth or sea because nature has placed them there
f. Cases:
i. Board of Trustees v. Sand Key Associates: Sand Key wanted quiet title to land that had
gradually and imperceptibly accumulated over ten years as a result of a jetty put there by the
state. Court ruled that Sand Key was entitled to the land because the accretion was not due to an
artificial condition of their doing.
ii. Goddard v. Winchell: A meteorite landed on P’s land, burying itself into the ground. Lessee let
another man dig it up and sell it to D. Court ruled that the meteorite was not a movable and thus
the rule of title by occupancy did not apply, finding for P.
Governmental Land Use Regulations
I.
Zoning
a. Euclidean zoning: Divides the municipality into districts based on uses, area, and height; all classes
except the first (i.e. single-family residences) are cumulative so that they incorporate the preceding class.
i. Advocated by Herbert Hoover
ii. Most of the country has adopted some kind of zoning
iii. Came from the idea of protecting residential areas as well as businesses from the growing
industrial market
b. Arbitrary and capricious standard: If the zoning ordinance is arbitrary and capricious, the courts will
step in; it’s presumed the legislature had a legitimate purpose in enacting it and the court will hesitate to
re-weigh a benefit to society that the legislature has already found
i. Cases:
1. Village of Euclid v. Ambler Realty: Ambler argued that a zoning ordinance passed by
the city, which restricted part of its vacant lot to residential purposes, was
unconstitutional because it deprived the owner of use and value of the land. Court ruled
that the city had a legitimate interest and it was not arbitrary.
2. Watergate West v. D.C. Board of Zoning Adjustment: GWU bought a former Howard
Johnson to convert it into a dorm in a high-density residential zone. Court ruled that the
dorm was allowed in the zone and consistent with the comprehensive plan to protect
residential housing because the hotel had never been permanent housing.
c. Standard State Zoning Enabling Act (developed 1922) has served as a model for state laws describing
how the zoning process proceeds.
i. Section 3 provides for a comprehensive plan, which sets up the local government’s statement of
objectives and standards for development.
1. Can change as specific zoning regulations change.
2. Judicial review of consistency of zoning regulations with comprehensive plans is lax—
most courts do not insist upon much adherence to any planning process—only require the
zoning decisions to be reasonable and impartial.
3. Some states now require that local zoning ordinances be “consistent with” the plan, not
“in accordance” with the plan. (uncertain distinction)
d. Proponents of zoning say…
i. Avoids conflicting uses that are not remedied by other laws
ii. Stimulates municipal economic growth
iii. Corrects for market distortions favoring the wealthy
iv. Flexible in actual application
v. Preserves communities
vi. Consistent with democratic norms by encouraging public participation in land use decisions for
the larger community
e. Opponents of zoning say…
i. Unnecessary because the market and private agreements will produce the optimum land use
decisions
ii. Inefficient because it encourages suburban sprawl and forces low income residents to travel
farther to work
iii. Expensive because of the costs of maintaining an administrative bureaucracy and paying lawyers
to ensure compliance
iv. Hostile to private property rights
v. Discriminatory (in some cases)
f. Exceptions to zoning ordinances
i. Grandfather exception: A non-conforming use which, although it does not conform with
existing zoning regulations, existed lawfully prior to the enactment of the zoning regulation is
permitted to continue until terminated.
1. Four methods of termination
a. Abandonment
b. Discontinuance or non-use for a prescribed period
c. Amortization (Fulfillment of investment-backed expectation? The allocation of
the cost or other basis of an intangible asset over its estimated useful life—
examples: patents, copyrights, leasehold interests)
d. Voluntary or involuntary destruction
2. Case:
a. Snake River Brewing Co. v. The Town of Jackson, Wyoming: Brewery
wanted to utilize different kind of parking option that was available at the time it
opened but not anymore due to a zoning change. Court ruled that brewery never
abandoned its non-conforming use and found for it.
ii. Use variance: Granted when strict enforcement of a zoning ordinance would cause unnecessary
hardship because of the unique nature of the property (cannot be obtained if the hardship is selfinflicted by the landowner).
1. Under Pennsylvania law, the elements are:
a. There are unique physical circumstances or conditions peculiar to the property
that create hardship
b. Because of these circumstances or conditions, there is no possibility that the
property can be developed in conformity with the zoning ordinance
c. Applicant did not create the unnecessary hardship
d. The variance, if granted, will not alter the essential character of the area
e. The variance, if granted, will represent the least modification possible to the
regulation at issue.
2. Case:
a. Omnipoint Communications v. Zoning Hearing Board: P wanted a use
variance to build a 110-foot cellular tower in zone with a height restriction of 35
II.
feet. Court ruled that the city was justified in rejecting the variance because
aesthetic considerations are a legitimate exercise of police power.
iii. Planned Unit Development (PUD): An instrument of land use control which augments and
supplements existing master plans and zoning ordinances, and permits a mixture of land uses on
the same tract
1. Purposes:
a. Enables developers to negotiate with municipalities concerning proposed uses
which may be contrary to existing ordinances but could be in the public and
individual homeowner’s interest.
b. Encourages and permits more intensified utilization of vacant land.
2. Case:
a. Price v. Planning Board City of Keene: P argued that an approved subdivision
was unlawful because it lacked dedicated open spaces or public amenities
required by the regulation. Court ruled that it met the PUD requirements and
nothing in the regulations mandated such features to be included in a PUD.
iv. Industrial Park: An area zoned solely for industry.
1. Under Euclidean zoning, you could also have residences in a higher use zone, but these
parks are an exception in the sense that you can only have industries that fall within the
zone.
2. It’s a way to attract industries because if there happens to be a smaller store or residence
nearby, the industrial business could become a nuisance and be liable to that neighbor—
problem eliminated when the only thing next door is another industry.
g. Terms:
i. Special exception (or conditional use): A use permitted by the ordinance in a district where it is
not necessarily incompatible, but where it might cause harm if its location is not monitored.
1. Use may be authorized only upon special approval by the board in individual cases rather
than as a matter of right.
2. Examples: Hospital to be located in a residential area, gas station to be placed in a light
commercial district
3. Purpose: Certain uses are entirely appropriate and not necessarily incompatible, but not at
every location in the district or without any conditions.
ii. Cluster zoning: When a developer is instructed to comply with density requirements for the
whole development even though the building on any given lot would not comply if the density
requirement was calculated for each individual lot.
iii. Floating zones: Zones defined for a particular use and later applied to particular land by
amending the zoning ordinance.
iv. Subdivision controls: Ordinances that seek to assure adequate services, streets and other
infrastructures by establishing standards and procedures for subdividing land for residential
development.
v. Impact fees: Payment to mitigate the burdens on the larger community.
vi. Spot zoning: Treatment of an island of land differently than adjacent properties—typically
favorable, but sometimes less favorably. (courts will likely strike down if it is for benefit of
landowner and not the public interest, or not in accord with the comprehensive plan)
h. Fairly debatable rule: If the application of a zoning classification to a specific parcel of property is
reasonably subject to disagreement, controversy, or contention, then the application should not be
disturbed by the courts.
i. Case:
1. HHB v. D & F: P wanted land rezoned so it could build a CVS. Court ruled that it would
not disturb a city’s decision if the issue was fairly debatable and had a reasonable
relationship to the health, safety, morals, or general welfare of the community.
Growth Controls
a. When localities try to maintain the expansion of their community through housing and zoning plans.
b. Terms:
i. Smart Growth: Method of controlling growth that invests time, attention, and resources in
restoring community and vitality to center cities and older suburbs—more town-centered, transit
and pedestrian oriented, and has a greater mix of housing, commercial and retail uses.
III.
IV.
ii. Exclusionary Zoning: Suburban zoning regulations which have the effect, if not also the
purpose, of preventing the migration of low and middle-income persons. (often racial minorities)
iii. Inclusionary Zoning: Zoning regulations which employ laws to encourage the development of
low-income housing.
c. Case:
i. Construction Industry Association v. City of Petaluma: City plan tried to slow growth of
housing in its community. Court ruled limiting growth was a legitimate interest to protect lowincome families and not a taking because developers could still use land (just not as much as they
wanted to).
Regulating Particular Uses of Land
a. Historic preservation:
i. Most cities and states have historic preservation laws that prohibit any activities that would alter
or destroy the historic places.
1. These laws are justified by the idea that aesthetics alone is a legitimate purpose for
governmental regulation.
2. Unlike zoning laws, historic preservation laws focus on the value of particular existing
buildings or neighborhoods, rather than what new uses of land should be permitted.
3. May limit changes to modern buildings in the district as well in order to preserve the
historic feel.
ii. Case:
1. New Orleans v. Pergament: D erected a 560-square-foot sign in the historic Vieux
Carre section of New Orleans where a an ordinance said a sign could only be 16-square
feet maximum. Court ruled it was legitimate to regulate even a modern building in this
way in a historic district to prevent eyesores.
b. Environmental preservation:
i. Many environmental laws protect lands on which society places particular value.
1. Example: Local zoning laws often allow only limit use of wetlands; regulating conduct
that could harm wildlife habitats
ii. Federal statutes address similar concerns.
1. Endangered Species Act—makes it illegal to “take” a protected species through habitat
destruction.
a. A landowner can often only proceed with a proposed development after receiving
an incidental take permit, which involves the preparation of a habitat
conservation plan in which the landowner sets aside some land for the species in
order to gain permission to develop another part of the land.
2. CERCLA—creates four categories of potentially responsible parties who have to pay for
cleanup costs if waste is found on property
a. PRPs
i. Current owner
ii. Any person who owned it during disposal
iii. Any person who contracted or arranged for disposal
iv. The dumper
b. Jurisdictions have different definitions of “disposal,” but some will say it
includes passive migration and to others even mere leaking is enough.
iii. Case:
1. Carson Harbor Village v. Unocal Corp.: Mobile home park owner had to clean up
waste that had leaked into the wetlands after Unocal’s petroleum production some years
before. Court ruled it was fair to hold the previous owners liable under CERCLA for the
cleanup costs because “disposal” didn’t necessarily require human activity.
Public Lands
a. The federal government owns about 28% of the nation’s lands (mostly in Alaska and the western states).
i. Federal lands are classified in numerous distinct ways that result in different land use rules
applied by different federal agencies.
1. National forests: Managed by the Forest Service within the Department of Agriculture
pursuant to a statutory “multiple use” requirement—utilize in combination what will best
meet the needs of the American people, but in harmony with managing various resources
and without impairing the productivity of the land.
2. National parks: Managed by the National Park Service within the Department of the
Interior pursuant to individualized statutes that provide for specific management
directions.
3. National wildlife refuges: Managed by the Bureau of Land Management within the
Department of the Interior pursuant to the Federal Land Policy and Management Act of
1976.
b. Cases:
i. Mausolf v. Babbit: Voyageurs National Park prohibited snowmobiling in certain parts of the
park to protect possible adverse affects on the gray wolf population. Court ruled the temporary
order was not arbitrary and capricious even if the evidence of a bad impact on the wolves was less
than definitive.
ii. Wilderness Society v. U.S. Fish and Wildlife Service: P argued a salmon-stocking project
violated the Wilderness Act because it was not keeping Tustumenal Lake in Kenai National
Wildlife Refuge in its “natural condition.” Court ruled the project was keeping up the natural
condition because it was actually maintaining what was being taken out by commercial fishing
and the agency’s interpretation as such was legitimate.
Present Estates
I.
Introduction
a. English system:
i. After Norman Conquest of 1066, England developed a complex scheme of land ownership under
which the monarch claimed to own the land. Others were tenants.
ii. Hierchical system (form of feudalism)
iii. Those in possession (or “seisin”) of parcels of real estate held those parcels as tenants of those
above them in a pyramid scheme culminating with the monarch at the apex.
b. American system:
i. The English system didn’t really take root and was eventually renounced after the American
Revolution.
ii. “The people” became the sovereign rather than the monarch.
iii. However, substantive concepts and the terminology of the old system remain.
c. Characteristics:
i. Spatial: Carving land ownership into geographical units
ii. Temporal: Carving land ownership over time
1. Present estate owner either actually possesses the land or has the present right to possess.
d. Traditional English property law recognized four basic types of present estates in land:
i. Fee simple:
1. Fee simple absolute
2. Fee simple subject to a condition subsequent
3. Fee simple determinable
4. Fee simple subject to executory limitation
ii. Fee tail:
1. No longer used
iii. Life estate:
iv. Leasehold:
1. Term of years
2. Periodic tenancy
3. Tenancy at will
e. Freehold estates: Fee simple, fee tail, life estate—Tenants are “seized” of the land
f. Non-freehold estates: Leasehold—Landlord has seisin
c. These are the ONLY kinds of present estates that exists and no new kinds are allowed. Courts will
pigeonhole a case into one of the existing categories rather than define a hybrid or new type of estate.
d. Escheat: The lapsing or reverting to the crown or the state as the original and ultimate proprietor of real
estate, by reason of failure of persons legally entitled to hold the same.
i. Case:
II.
1. In Re O’Connor’s Estate: Since O’Connor had no heirs, his estate escheated to the state
of Nebraska and thus Adams County wanted the state to pay an inheritance tax on it.
Court ruled that to escheat was more like a reversion rather than an inheritance and thus
dismissed the action and found for the state.
e. Additional terminology:
i. Heirs- Determined only at one’s death; relatives designated by state statute to receive a dead
person’s property in the event that he dies without a valid will (usually spouse and children)
ii. Decedent- Deceased person, especially one who has lately died.
iii. Intestate- To die without a will
iv. Tenant- One who holds lands for another
v. Tenure- The mode or system of holding lands or tenements (land capable of being held in
freehold) in subordination to some superior
vi. Conveyance- Transfer of title to land from one person, or class of persons, to another by deed.
(includes assignments, leases, mortgages, or encumbrances of land)
vii. Deed- Writing signed by grantor, whereby title to realty is transferred from one to another
viii. Will- An instrument by which a person makes a disposition of his real and personal property, to
take effect after his death, and which by its own nature is ambulatory (subject to change or
alteration) and revocable during his lifetime
ix. Devisee- One who receives real property under a will
x. Legatee- One how receives personal property under a will (person to whom a legacy in a will is
given)
xi. Legacy- A disposition of personalty by will.
xii. Devise- A testamentary disposition of land or realty; gift of real property by the last will and
testament of the donor
xiii. Bequeathed- To give personal property by will to another
xiv. Testate- To die with a valid will
xv. Issue- All persons who have descended from a common ancestor; offspring, progeny, lineal
descendants (children, grandchildren, great-grandchildren, etc.)
xvi. Ancestors- A person’s lineal forebears (parents, grandparents, great-grandparents, etc.)
xvii. Collaterals- All other relatives (brothers, sisters, uncles, aunts, etc.); not lineal but one parallel or
diverging line
xviii. Bequest- A gift (transfer) by will of personal property; a legacy.
xix. Quitclaim deed- A deed of conveyance operating by way of release; intended to pass any title,
interest, or claim which the grantor my have in the premises, but no professing that such title is
valid, nor containing any warranty or covenants for title.
xx. Assign- To transfer to another; an appointed or designated person (?)
xxi. Purchase- The acquisition of real estate by any means except by inheritance.
xxii. Warranty deed- Deed in which grantor warrants good, clear title.
xxiii. Allodial- Free; not holden of any lord or superior (opposite of feudal)
Fee Simple Absolute: “O to A (and his heirs)”
a. Estate limited to a person and his heirs and assigns forever, without limitation or condition. Owner is
entitled to the entire property, with unconditional power of disposition during his life, that descends to his
heirs and legal representatives upon death. Heirs have no present interest, only the right to inherit it if the
person dies.
b. This is the type of estate that most people associate with land ownership and is usually just called a fee
simple.
c. “to A”—words of purchase
d. “and his heirs”—words of limitation or inheritance (i.e. not a life estate)
e. General rule: Mere statement of purpose of conveyance will not limit the extent of the grant.
i. Case:
1. Roberts v. Rhodes: Where a deed said the land was to be used for school or cemetery
purposes, the court ruled that it was a fee simple for a lack of limiting words that would
cause a reversion or automatic expiration.
f. Although a fee simple absolute carries the greatest rights and has the fewest limitations of any estate in
land, it is still limited.
i. Cannot use property so as to create a nuisance.
III.
ii. Can be encumbered by easement, real covenant, equitable servitude, mortgage, etc.
Fee Simple Defeasible
a. Three types of defeasible estates:
i. Fee simple subject to a condition subsequent
ii. Fee simple determinable
iii. Fee simple subject to executory limitation
b. General rule of construction: The deed or will conveying or devising property in a fee simple defeasible
must clearly express such an intent, although no specific language is required. The drafter has the burden
of making the intention clear or the court will find a less cumbersome limitation (to the present
possessor’s interest in the land). From “best” to worst”:
i. Fee simple absolute
ii. Fee simple subsequent to a condition subsequent
iii. Fee simple determinable
iv. Life estate
c. Fee simple subject to a condition subsequent
i. Upon noncompliance with a stated condition, the grantor or his successor in interest has the
power to terminate the preceding estate
ii. Grantor has a right of re-entry which requires some action to perfect title by the grantor or his
successor—not automatic
iii. Can last indefinitely because its continuance is tied to a condition subsequent (one that may arise
later). If the right of entry is not exercised or enforced by the grantor, the estate continues
uninterrupted. Adverse possession may also come into play if the grantor sleeps on his right.
1. Most states do not have express statute of limitations on exercising the right of re-entry,
but there are some “soft” principles of law that sometimes stop people from asserting
stale rights:
a. Waiver—intentional or voluntary relinquishment of a known right
b. Estoppel—party is prevented by his own acts from claiming a right to detriment
of another party who was entitled to rely on such conduct
c. Laches—neglect to assert a right which, taken together with lapse of time and
other circumstances causing prejudice to adverse party, operates as bar in court
of equity
iv. Courts consider it to be less onerous than a fee simple determinable and so favor it.
v. Words of limitation—provided, if, upon the condition that, right of re-entry, power of
termination
vi. Case:
1. Higbee Corp. v. Kennedy: Original grant said that the land was to be used for a road
and failing to keep a good fence around the lot would constitute a forfeiture of the claim
and the land would revert to the grantor. Court said that since there was ambiguous
language pointing to a condition, the court would find there was a fee simple subject to a
condition subsequent rather than a fee simple determinable.
d. Fee simple determinable
i. An estate in fee that automatically reverts to the grantor upon the occurrence of a specified event.
Grantor has an interest termed as a “possibility of reverter.”
ii. Words of limitation—so long as, during, while, until, revert/reverter
iii. Restatement of Property §44:
1. An estate in fee simple determinable is created by any limitation which, in an otherwise
effective conveyance of land,
a. creates an estate in fee simple, and
b. provides that the estate shall automatically expire upon the occurrence of a stated
event
iv. Case:
1. Mayor and City Council of Ocean City v. Taber: Through several conveyances, the
city obtained land that was specifically supposed to be used for a life saving station or it
would revert to the grantor. The court found it was a fee simple determinable because the
U.S. had failed to use it as such before it conveyed the land to the city and thus the lot
had automatically reverted back to Taber.
IV.
V.
v. Habendum clause- Portion of a deed that defines the extent of ownership to be enjoyed by the
grantee (usually begins with “to have and to hold…”
e. Fee simple subject to executory limitation
i. Continuance is tied to the performance of a particular act or the occurrence of a future event and
upon triggering, the estate automatically terminates. The triggering act is a condition rather than
a limitation, so that if it is violated the present estate shifts from the initial grantee to a designated
alternative grantee.
ii. Alternative grantee is said to have an executory interest, which becomes a possessory estate if the
triggering condition occurs.
iii. Can last indefinitely (if condition never occurs)
iv. Case:
1. City of Palm Springs v. Living Desert Reserve: Deed limited use of land to a desert
preserve and equestrian center or the land would be conveyed to D. Court ruled that the
deed was subject to a condition and D had reversionary interest in the property which
could be recovered even though the violation had not occurred because it was eminent.
v. Charitable trust: Fiduciary relationship with respect to property arising as a result of a
manifestation of an intention to create it, and subjecting the person by whom the property is held
to equitable duties to deal with the property for charitable purposes. Must promote the welfare of
the public at large or some indefinite class of persons.
Fee Tail
a. Created to ensure that estates would stay within families and not be sold or lost by later descendants.
b. If O conveys to A in fee tail, at A’s death the land passes to his lineal descendants until the line dies out,
at which time the land reverts to O or his heirs in fee simple absolute.
c. Severely restricted the sale and development of land.
d. Now, the words which would have created a fee tail create a fee simple absolute. Landowners wishing to
convey only a lifetime use or possession of property typically create a life estate instead.
Life Estate
a. Definition: An estate whose duration is limited to the life of the party holding it, or some other person.
b. Most life estates are created by gift, devise, or bequest—few buy or sell life estates. Often, they are held
in trust.
c. Rule for construction: In cases of doubt, the court will favor an absolute estate over a partial intestacy.
The courts presume it conveys all the land unless a contrary intention appears.
i. Cases:
1. White v. Brown: Where a woman wrote in her will that she would like White to have her
home to live in and not be sold, the court found it was a fee simple absolute because a
clear intent to pass a life estate was absent.
2. Williams v. Estate of Williams: Man left property to three unmarried daughters “during
their lives, and not to be sold during their lifetimes” and each would get full control if
another was to get married. Court ruled that there was clear intent contrary to wanting an
absolute estate and that it created a life estate instead.
a. Three possibilities when one life tenant dies in a multiple life tenants situation:
i. Life estate ends when the first life tenant dies (estate for joint lives)
ii. Life estate lasts until the last tenant dies (each survivor’s share increases
by means of a remainder)
iii. Life estate lasts until the last tenant dies (deceased’s share passes through
her estate)
d. Common-law doctrine waste: Whether by affirmative acts or failing to take reasonable care, it is waste
for one owner in rightful possession to reduce substantially the value of property for its other present or
future owners.
i. Created to prevent life estate holders from despoliation of property because they have no interest
in its future value beyond their own life expectancy.
ii. What constitutes waste is fact-dependent.
iii. This doctrine empowers the holder of a reversion or a remainder interest in property to force a
present possessor of property to preserve its capital value intact. Remedies include injunction,
monetary damages, and forfeiture of the property.
VI.
iv. Applies to life and leasehold estates, but not to any fee simple absolute estates. It applies to
defeasible fee simple estates differently, taking into account the probability that the future interest
will not become possessory.
1. Restatement §6.1 Donative Transfers: Says that if the motive behind such a condition is
to prevent the acquisition or retention of an interest in property in the even of any first
marriage of the transferee, then it is invalid. If it is to provide support until marriage, it is
normally valid.
2. Restatement §6.3: Says that if the condition is imposed on the donor’s widow in regard to
remarriage, it is per se valid, regardless of motive.
v. Case:
1. Woodrick v. Wood: Wife and son wanted to raze old barn on property in which daughter
had a remainder interest and wife had a life estate. Court ruled that it was not a waste to
take down the barn since it would increase the lot’s value (did not follow common law in
Ohio).
e. Additional Terminology:
i. Life tenant- One who holds an estate in lands for the period of his own life or that of another
certain person.
ii. Remainderman- One who is entitled to the remainder of the estate after a particular estate carved
out of it has expired. One who becomes entitled to estate after intervention of preceding estate or
on termination by lapse of time of rights of preceding estate created at same time.
iii. Reversion- A future interest under which a grantor retains a present right to a future interest in
property that the grantor conveys to another; usually the residue of a life estate
iv. Remainder- The remnant of an estate in land, depending upon a particular prior estate created at
the same time and by the same instrument, and limited to arise immediately on the determination
of that estate, and not in abridgement of a it. A future interest created in some person other than
the grantor or transferor.
v. (Life estate) Pur autre vie- French for “for another’s life”; An estate in lands which a person
holds for the life of another person.
vi. Restraint on alienation- A provision in an instrument of conveyance which prohibits the grantee
from selling or transferring the property which is the subject of the conveyance. (Courts disfavor
them because they make property unmarketable and hinder its exploitation.)
vii. Disabling restraint- Restraints on alienation of property which are normally void as against
public policy. (Example: Barring the grantee from selling interest in the property altogether.)
Leasehold Estate
a. Generally:
i. Like fee simple or life estate, may be made defeasible by adding words of limitation
ii. Tenants are subject to the doctrine of waste
b. Types:
i. Term of years
1. Historically, the most important kind; runs for a specific period of time
2. Words of limitation—to A for …years/months
3. Absent contrary language, a tenant under a term of years can freely convey or devise his
leasehold interest during his term for the balance of his term.
ii. Periodic tenancy
1. Runs from month to month (apartment leases) or from year to year (commercial and
residential leases)
2. Continue for succeeding periods until terminated by either the landlord or the tenant
iii. Tenancy at will
1. No fixed duration; can be terminated “at will” by either landlord or tenant
iv. Tenancy at sufferance
1. Tenant remains in possession of leased property after the end of the lease