Property Outline – Professor Kieff
I. Property Law Theory
A. WHAT IS PROPERTY?
1. essentialists- property confers exclusive control over an “external thing”
2. skeptics- property is a “bundle of rights”; there is plasticity
a. Grey- property is a contingent bundle of rights
B. RENT-SEEKING
1. RENT- the gain; may be private or public
2. RENT (benefit) DISSIPATION (ruining the benefit); 2 types:
a. overinvestment- ex. 10 people in a room, each spend $9 to get a $10 prize; net loss
i. racing toward a common prize
ii. net investment exceeds benefit
b. bad investment- i.e. investing in lobbying rather than in building the economy
3. SOLUTION: property entitlements: focal point for coordination (i.e. hassidic diamond-trading
Jews), which helps prevent overinvestment; owner has power (b/c right to exclude)
C. LOCKEAN
1. LABOR THEORY: mixing of sweat/labor = conversion of common property into private
property (i.e. adverse possession, IP)
2. Gvmt does not create priv. property- God created private property; gvmt may not redistribute
3. LOCKE’S PROVISO: One must leave “as good and enough for others” (used by Rawls to justify
redistribution if extreme concentration of wealth)
D. HEGEL
1. PERSONALITY THEORY OF PROPERTY- the subjective value of an object to an individual is not
recognized by the law- disconnect
2. the only way to understand property is to understand its relationship to the person
E. LAW AND ECONOMICS SCHOOL
1. GOAL- efficiency, not morality
2. 2 most common definitions of EFFICIENCY:
a. Pareto Efficiency
i. Goal- get a pareto superior result- produces at least one winner and doesn’t make
anyone worse off- making things more efficient
ii. Pareto optimality- point of optimal efficiency; point before first loser is produced
b. Kador-Hicks Efficiency
i. Goal- wealth maximization; producing losers doesn’t matter as long as there is a net
gain; no need to compensate losers
3. EXTERNALITIES/ TRANSACTION COSTS
a. Transaction costs- includes cost of finding/dealing w/each other in a deal; getting info
about what something is worth, transmitting info; lock-in problems (once you’ve started
investing); failed transactions
i. transaction costs are a bigger problem if the market is thinner (fewer number of
trading partners/ moving pieces) in the market and the # of things they are trading)
ii. goal: look for the lowest cost provider, evaluator
b. Rational actors try to externalize their cost to others (i.e. externalizing pollution)
c. Hardin’s Tragedy of the commons- wealth maximizing farmers will continue to add
cows to shared land w/finite amt. of grass even if doing so will cause the land to stop
producing food; result- everyone starves
i. Solution? Introduce private property  creates incentive to keep resource healthy
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d. Coase Theorum
i. Coase I- in a perfect market, the market determines the outcome of conflicts btw
two uses – more valuable resource will ultimately prevail (farmer/ rancher ex.)
 redistribution/regulation not necessary- market will handle it
ii. Coase II- there is no perfect market; must include transactional costs (cost of
reaching an accord btw parties), which can cause the outcome to flip- less valuable
activity can continue b/c of the high transaction cost of stopping the activity; fewer
people affected = higher transactional costs
 goal- information-forcing rule- want knowledge (i.e. who is lowest cost
provider) brought to attn of decision-maker
F. NORMATIVE THOERY
1. descriptive norms- what people tend to do
2. diamond-trading Hassidic Jews- resolve disputes w/community counsels (cheaper, more
effective)
G. KIEFF
1. The more property has predictable enforcement and the ability to be traded/bundled/divided,
the more it encourages private actors to interact  economic growth
2. Conversely, the more entitlement can be changed at the whim of gov’t actors and is inflexible,
creating a system where actors must negotiate w/the gov’t  bad for economic growth
3. Inducements/Constraints on Behavior
a. Markets
i. capital (who will invest in you, how much, terms); products; control; exit options;
compensation structures
b. Government
i. legislators, regulators, judges; mandatory vs. default rules; taxes, tax credits;
property rights, regulatory entitlements
II. Assignation of Property Rights: Original Acquisition
A. FIRST POSSESSION
1. benefits: used commonly, equal opportunity (to race), requires work to possess, easy to
administer, gives notice to how good is allocated
2. WILD ANIMALS
a. Pierson v. Post- Pierson took fox Post was hunting; Held- pursuit not sufficient to
establish possession; only person to mortally wound/ seize animal acquires possession
i. benefit of assigning property right w/possession? clear demarcation by which
people can order their affairs (prevent others from making investment); notice impt
b. Ghen v. Rich- whale hunter sues to recover value of whale; Held- defer to custom
when universal w/in community (and when custom is efficient)
c. Keeble v. Hickeringill- Held- interfering w/duck harvest (i.e. trade essential to your
livelihood that you have entitlement to) is actionable
3. OPEN ACCESS AND THE COMMONS
a. Open access- no one has a right to exclude others; open to all
i. Problems: rent dissipation, racing
ii. Solutions: exclusive “property” rights, private owner or state regulates the group,
individual transferable quotas (ITQs)
b. Semi-commons- a resource is subject to private exclusion rights in some uses, but is open
access for other purposes (shifts from common property to private property)
c. Anti-commons- too many have the right to exclude, so no one is able to use a resource
d. Patent- property rights in ideas; creates incentive for inventors
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i. monopoly (creating giant transaction cost causing hold-ups/outs) or anti-monopoly
(creates increased access to technology)?
4. Eads v. Brazelton- Brazelton intended to salvage a boat, Eads moved in first; Heldpossession of property requires actual taking and intent to reduce it to possession;
possession requires notice plus diligence
5. Popov v. Hayashi- issue- who was 1st to possess a homerun baseball; Held- Popov had prepossessory interest b/c he grasped it, Hayashi held on; ball sold, proceeds split btw them
B. DISCOVERY
1. Johnson v. M’Intosh- Π bought the land from Indians, fed. gov’t conveyed the land to Δ;
Held- Native Americans were granted right of occupancy only, no right to transfer/ exclude
2. Lockean theory – mix your labor/sweat w/it – you own it
C. CREATION
1. MISAPPROPRIATION/ QUASI-PROPERTY RIGHT IN HOT NEWS
a. Int. News v. Assoc. Press- INS (West Coast) used AP’s (East) bulletins as a source for
news stories; Held- “hot news rule:” some limited form of right to news at newest
moment
b. costs of quasi-property right: racing leading to overinvestment, inefficient, higher price to
consumers, transaction costs
2. RIGHT OF PUBLICITY
a. Midler v. Ford Motor Co.- Ford’s advertising agency used a “sound alike” (to Midler);
Held- Ford is trespassing on Midler’s right of publicity (b/c her voice is widely known,
and that was used by Ford to sell a product)
3. NOVELTY
a. Trenton Indus. v. A.E. Peterson Mfg.- claim for patent infringement of improvement
in high chairs; Held- no property right; objective standard for patentability requires:
1. new to the world (compare to prior art references) and 2. non-obviousness;
D. ACCESSION- one person adds to the property of another either by labor or labor & new materials
1. DOCTRINE OF ACCESSION- the group of legal doctrines that awards ownership to the most
prominent thing in the field of view; adding ownership on to existing ownership
a. Increase almost always operates as an accession-type analysis
i. i.e. you give me a cow, which gives birth to a calf, you own both the cow and calf
b. Accession generally not applied to land b/c difficult to figure out unit of measurement
2. LABOR ADDED
a. Rule: usually owner of raw material will be awarded final product, unless the
improver’s efforts have sufficiently increased its value to make doing so unfair
b. Wetherby v. Green- who owns the wood btw original owner and improver; Heldaccession applies
i. if finding of accession- improver takes from owner and pays that person the
value of what they took (at time of taking); liability rule, recognizing entitlement,
Calabresi framework
 if no accession (property rule), prior owner keeps it and improver has to
negotiate w/owner
ii. factors court considers in deciding whether to use accession doctrine:
 mental state of improver (good-faith?)- if bad-faith, no accession treatment
 degree of transformation – question of degree
o just desserts (req. high deg. transformation) vs. personhood/lockean view
(rel’ship btw improved thing and improver makes it more/ less their’s)
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 relative value contributed by orig. owner compared to value contributed by the
improver; factor of degree
3. AD COELUM RULE (if own soil, also own to sky and depths)
a. see Hinman- airplane overflights
b. Resources under the surface (minerals, oil, caves)
i. Edwards v. Sims- cave under neighboring lands, Edwards made it a tourist site,
entrance on his land; Held- person who owns the surface has legal title to that
below (accession approach); Dissent- possession approach
4. ACCESSION VS. CONFUSION
a. Accession- labor/creation and transfer; liability rule; Calabresi framework; accession
operates to take a piece of property and transfer it to another via liability rule
b. Confusion- mistake and mixing/co-mingling; both parties usually get their property right
enforced by a liability rule
5. ACCRETION DOCTRINE- operates like accession
a. accretion vs. avulsion; 2 different rules regarding land boundaries:
i. Established doctrine: Accretion- land that is added to an owner’s land becomes
his property (slow movement of soil)
ii. Avulsion- location of the old river bed constitutes a permanent, fixed boundary
(typical where river completely/ rapidly changes its bed)
b. Nebraska v. Iowa- dispute over boundary btw 2 states; argued avulsion should apply
b/c Missouri River is constantly changing; Held- court continues to treat it through
established doctrine of accretion
6. REAL ESTATE FIXTURES
a. Strain v. Green- Greens sell home to Strains; when they move out, take several items
(mirrors, chandelier, water tank); Held- gap-filling approach (take what everyone wants
and provide for it)- law of fixtures, if attached, should be considered part of house
i. gap-filling rule (most ppl get what they want w/o having to ask) vs. info-forcing
rule (coerces ppl into speaking more clearly upfront)
E. ADVERSE POSSESSION
1. BASIC ELEMENTS: one person has title to land; another lays claim to it w/o having title, after
period of time, the land is granted to the possessor/claimant
2. REQUIREMENTS: possession must be:
a. actual – physical occupation (i.e. fence, building, farming)
b. exclusive (exclusive control)
c. open and notorious
d. continuous
e. adverse/ hostile under a claim of right – non-permissive use
3. THEORETICAL APPROACHES
a. Lockean – focused on dessert; person mixing labor/ doing work, deserves ownership
b. Hegelian- person who values the land the most/ has utilized the land deserves it (look at
rel’ship btw person and the asset- whether it’s tight); use partly defines formation of the
person, not partaking in property = lack of acknowledgement in that tradition
c. Utilitarian- efficiency-based; AP makes most use of the land; gatekeeper is allowing
others to make best use of property while cutting out transaction costs (dealing w/others)
4. Lessee of Ewing v. Burnet- Δ maintained the property, granting rights/exclusions to it; Π,
in 21 yrs., never brought a claim of right against Δ; Held- acts of visible and notorious
ownership (taking of soil/gravel) for 21 years sufficient to demonstrate AP
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a. Rule: neither actual occupation, cultivation, nor residence is necessary to constitute
actual possession
5. Minority- requirement of good faith of adverse possessor
a. Carpenter v. Ruperto- Π puts land to higher use though aware property is not her’s;
Held- no claim of right b/c she acted in bad faith
b. Majority- objective non-permission interpretation of adverse under a claim of right
6. TACKING- periods of possession by different people may be added together but requires
privity
a. Howard v. Kunto- descriptions in deeds didn’t fit land deed holders were occupying;
Held- continuity measured by what is the community norm for that property (summer
home- every summer counts as continuous); tacking also allowed when there is privity
7. SOL/ DISABILITY
a. Songbyrd, Inc. v. Estate of Grossman- adverse possession claim- co. produces album
of Byrd’s music from recordings w/o consent; Held- Songbyrd failed to commence
action w/in SOL; court applies time of conversion rule
b. Time-of-Conversion Rule- SOL begins to run at time of conversion
c. Demand Rule- SOL odes not begin to run until true owner makes demand for
return of property and return is refused (favors true owner, more time for recovery)
F. SEQUENTIAL POSSESSION
1. FOUND PROPERTY
a. Armory v. Delamirie- boy finds jewel, takes it to jewelry shop; shop’s apprentice took
out stones and gave boy back socket; Rule- finder has unqualified property right
against the world, excluding the original owner (who has the ultimate right)
b. Clark v. Maloney- finder 1 vs. finder 2; Rule- first finder wins; benefits- bright-line,
allows 1st person to invest, more likely to be found by true owner
c. Anderson v. Gouldberg- two converters of pine logs; Rule: first converter wins;
benefits: true owner more likely to find 1st converter, want to disincentivize serial taking
d. Lost (falls out of pocket) vs. mislaid (placed somewhere, forgotten about) property;
courts generally give lost property to finder and mislaid property to the owner of the land
2. COMPETING PRINCIPLES OF ORIGINAL ACQUISITION
a. Fisher v. Steward- Π’s told Δ about the beehive they found on his land; Held: Πs loseclaim of property by occupancy would allow trespass; true ownership of beehive based
on accession
i. Ways to resolve: 1. accession-test- if on the land, it goes w/it; 2. ratione sole- he
who possesses the property owns what is found on the land (English test)
b. Hannah v. Peel- Peel’s house requisitioned by gov’t, soldier finds brooch; Held- soldier
prevails b/c Peel never moved into the house/ took phys. possession of it; 1st possession
instead of accession counts here; another way to resolve: trespass, soldier there lawfully
III. Values Subject to Ownership
A. PERSONHOOD
1. Regents of California v. Moore- patient w/leukemia’s organ removed and used for science;
issue: body parts property?; Held- no conversion, abandonment applies
a. different approaches to body parts as property: 1. no conversion, but may present some
due process claims; 2. it’s property but only backed up by right to excluded, not
transferable; 3. bundle of rights approach
b. conversion- someone takes your property, you don’t want it back, want $ damages
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2. Moakley v. Eastwick- Held: Church allowed to take down an artist’s mural, despite a statute
regarding art preservation b/c statute is to be applied prospectively; issue: protecting artists’
reputation, which will affect perception of his body of work
3. United States v. Corrow- Navajo artifact being sold; Held- cultural patrimony and may
not be sold (b/c NOT personal property) if the object 1. is not owned by an individual Nat.
Am.; 2. could not be alienated/transferred by an individual; 3. has ongoing cultural
significance
4. MARGARET RADIN (HEGELIAN)- pay attn to impact on personhood; 2 levels of property
(personal and fungible); the more connected w/personhood, the stronger the entitlement;
buying/selling of things (i.e. body parts) can diminish human dignity and value of human life;
some goods should be inalienable, to prevent markets which distort worth of human beings
B. PUBLIC RIGHTS – should certain resources be regarded as “inherently public”?
1. NAVIGABLE WATERS
a. right to freely navigate water; Congress’ auth. based on Commerce Clause; GibbonsCongress may legislate commercial navigation; Congress- navigable waters remain open
to public navigation
b. English law- water is freely navigable b/c land beneath the water owned by Crown (right
to fish also public right)
2. PUBLIC TRUST DOCTRINE
a. Illinois Central Railroad Co. v. Illinois - IL gave RR access to harbor and took it away,
RR claims rights in property; Held- harbor waters/land beneath held in trust by the
gov’t for ppl of the state, and the trust cannot be alienated/ transferred; RR never had
a property interest
i. state may only transfer trust lands if selling small parcels (& if benefitting public)
b. State of Oregon ex rel. Thornton v. Hay- state obtains prescriptive easement over
beach land b/c of custom of area being used recreationally by public
IV. Owner Sovereignty and Its Limits
A. RIGHT TO EXCLUDE
1. TRESPASS- unprivileged, intentional intrusion on property possessed by another
a. TRESPASS TO LAND (intentional tort)
i. Compare Jacque v. Steenberg Homes, Inc.- Steenburg delivering mobile
home, easiest route across Jacque’s land; plowed path; Held- actual harm not in
damage done to land, but loss of individual’s right to exclude others, large
damage award reasonable as deterrent
 risk- people will game the system; okay to trespass as long as you pay a fine?
 issue- channeling: ct. enforces property rule, encourages channeling
(negotiating); benefits: forces communication, exchange of values, safety w/cops
ii. with Hinman v. Pacific Air Transport- Δ airlines operated aircraft thru airspace
over Π’s property; Held- rejects ad coelum doctrine (if own soil, also sky to
depths); trespass requires actual, substantial harm; inefficient to force
negotiation of flyovers (hold-out issue, markets won’t work), law should step in
b. REPEATED TRESPASS
i. Baker v. Howard County Hunt- Bakers own a farm, repeated trespass by hunt
club’s hounds; Held- injunction granted b/c trespass is repeated, intentional,
and seriously interferes w/owner’s peaceful enjoyment of his property
 illustrates problem of liability rule treatment (sue me, I’ll pay damages each
time and continue trespassing)
ii. successful claims usually involve repeat nature and intentional nature
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c. BUILDING ENCROACHMENTS
i. Pile v. Pedrick- stone factory wall projected into Πs land 1 3/8” below surface;
Held- wall must be torn down b/c Δs won’t allow Πs on their land to remove
encroachment; judge divided costs of doing so
ii. Golden Press v. Rylands- bldg foundation/footings extend onto Πs land; Heldencroachment in good faith, so court should balance equities, not act
oppressively; requiring removal would be unconscionable b/c of hardship
(Kieff- encroachment not in good faith, ct. should’ve gone other way)
d. CRIMINAL LAWS
i. People v. Olivo- issue: ability to charge someone w/shoplifting if they haven’t left
store w/item? Held- goal is protection of private property; customer must exercise
control inconsistent w/rights of owner (furtive glance not enough)
e. Tate v. Shaft- Δs entered private property to aid migrant workers working/living there,
refused to depart at demand of owner; Held- no trespass; protection of human values
for disenfranchised supersedes right to exclude (relevant categories: health, educ.
legal aid, relig.); other option- treat workers as tenants, who have right to have guests
f. Hamidi v. Intel- former employee, Hamidi, sends emails to Intel’s employees over its
comp. system; Rule: trespass to chattel requires injury/interference to personal
property; Held- no injury here
g. SELF-HELP
i. Rule- okay if no danger of violence
ii. Byrd v. Wiley- property owner, who rents to restaurant owner, locks out rest. owner
after dispute; Held- self-help not okay (esp. when preventing his livelihood),
possibility of violence, even when cops were present
iii. Ford Motor Credit Co.- divorce, wife gets car, husband stops making payments,
car repossessed; Held- this form of self-help okay b/c no threat of violence
iv. Differences btw 2 cases: relationship btw transaction cost and overall value in
property closer in the real estate, personal property more movable, alternative
(legal) in restaurant case
v. Restitution/ Self-Help for Improver- will receive restitution if you can prove
benefit was conferred / how much
 Rule: most states reject absolute right to exclude where good faith improver
 Olney Bldg Co. case- contractor build a home on someone else’s land and then
tears it down after failed negotiations; Held- house is now property of
landowner, by destroying it, builder substantially interfered; builder/improver
may not self-help
B. EXCEPTIONS TO RIGHT TO EXCLUDE
1. NECESSITY
a. Ploof v. Putnam- Π, family sailing in storm, moor to Δ’s dock, dock’s owner unmoors
boat; Rule: There is a duty to allow acts of necessity in order to preserve human life
b. McConico v. Singleton- Rule: hunters given license to hunt on another’s land as
long as they are not using it (based on custom); owner is not harmed
2. PUBLIC ACCOMMODATIONS LAWS
a. Common carriers and innkeepers are subject to a general duty of nondiscrimination
among customers; Requirements: 1. if they refuse service, they must have some good
reason; 2. must charge reasonable rates
b. Civil Rights Act of 1964 increased scope of “public accommodation” to: h/motels
providing lodging, restaurants/places selling food, entertainment theaters/arenas
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c. Uston v. Resorts Int. Hotel, Inc.- casino excluded card-counters; Held by NJ- if you
open yourself up to the public, you cannot selectively choose who to admit
d. Shelley v. Kraemer- black family, Shelleys purchased home, neighbors sued to restrain
Shelleys from taking possession, claiming racial covenant was enforceable; Held- courts
cannot enforce racially restrictive real estate covenants, which are invalid under
14th Am. equal protection clause (individuals can still sell to who they want)
i. policy reasons behind not enforcing? same as goals of Fair Housing Act (unlawful
to refuse to rent/sell to someone b/c of race, gender, religion, familial status, etc.):
want to increase housing avail. for minority groups; prevention of dignitary harms/
stigma/ segregation/ ghetto-ization
e. Atty Gen. v. Desilets- couple not allowed to rent apt. b/c landlords didn’t want
unmarried couple there; Held- remanded b/c state statute meant to protect a diff. class
C. OTHER POWERS OF SOVEREIGN OWNER
1. LICENSES
a. Rule: mere licenses are not property rights
b. Rule: a license is revocable unless on its terms it’s supported by a contract making
it irrevocable
i. a license may/may not have injunctive remedies
ii. standard of care in torts- if someone is on land for free, must avoid being reckless
(low standard); someone on land for business, must avoid being negligent (higher)
c. Property interest vs. contract interest
i. Marrone- racetrack owner revokes ticket of man suspected of doping a horse at the
track; Held- ticket is a license that is revocable; ticket owner’s right is to sue for
breach of contract, as ticket was a contract
ii. Hurst v. Picture Theatres, Ltd. (U.K. case)- movie-goer expelled while watching
show; remedies: specific perf. (injuction), refund (damages); 2 judges- tix is a
license, rights conferred by tix define terms; 1 judge- tix is contract, not license
iii. ProCD Inc. v. Zeidenberg- software license treated like a contract; Heldshrinkwrap license is enforceable; if you buy software, you are agreeing to the
license
2. BAILMENTS
a. Bailments- arise when the owner of property (bailor) temporarily transfers custody of the
property to another (the bailee)
i. respective rights have strong contractual element, may be modified by agreement
ii. bailor’s right to exclude others is transferred to bailee
b. Allen v. Hyatt Regency- car stolen while at parking garage; issue: bailment or license?;
bailment is transfer of possession; presumption of negligence if bailment; Heldbailment b/c ticket serves as possession (like a 2nd key, need it to leave)
c. Bailee’s duty of care
i. Justice Story- if bailment for sole benefit of bailor, law requires only slight
diligence; if bailment for sole benefit of bailee, law makes him responsible for slight
neglect; if reciprocally beneficial, law makes bailee responsible for ordinary neglect
ii. Rule- bailees, even involuntary bailees, are strictly liable for misdelivery
iii. Cowen v. Pressprich- Π accidentally sent wrong bond to the Δs; Δs noticed it was
wrong, gave it back to the wrong person, who steals the bond; Held- Δ held strictly
liable for misdelivery; Δ took control of it, so not involuntary bailee
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iv. The Winkfield (Eng.)- Πs, Postaser. Gen. files suit on behalf of mail-owners when
ship collides w/another ship; Held- Postmaster recovers, holds $ subject to claims
by customers (possible windfall to Postmaster if not all file claims)
 Rule: in voluntary bailment, cts usually bar action by true owner against
present possessor if bailee has already recovered from the present possessor
3. ABANDONMENT AND DESTRUCTION
a. abandonment- parting w/possession b/c you don’t want to get it back; Q of intent
b. traditional rule- real property cannot be abandoned
c. Pocono Springs Civic Assoc. v. MacKenzie- MacKenzie’s Poconos property has
become a neg.-value asset, they try to abandon it to assoc. & get out of paying assoc.
fees; Held- may not abandon; goal- want someone to take care of it, mop up neg. value
i. signals of non-abandonment- tie tied to car as blazemark, note on windshield
d. Eyerman v. Mercantile Trust Co.- homeowner wants house destroyed upon her death;
Π neighborhood assoc. gets injunction; Held- rule against destroying; public policy
arg.- would cause senseless loss to estate, Πs, public, cause depreciation, archit. signif.
4. TRANSFER
a. right to transfer- fundamental attribute of owner sovereignty
b. transfer rules add cost (make it harder), but overall, add value- make it easier for ppl to
tell an asset has been property transferred so they can decide to buy/sell it
c. efficiency justification- free transferability allows things to be reallocated so as to allow
those who place a higher value on the asset to end up in control of it
d. 2 types: exchanges and gifts
e. Rule against restraints on alienation- an owner may not transfer property to
another on the condition that the transferee will not retransfer the property
i. Lauderbaugh v. Williams- restraint on transfer in homeowner agreement: future
owners must be members of HOA; Held- restraint unenforceable; no standards for
membership to HOA set out, possble HOA could deny membership to prospective
alienee, depriving Lauderbaugh of right to transfer/alienate her land
ii. Rule- partial restraints on alienation only upheld if reasonable
f. SOF- § 1- any conveyance of a property right in land, other than short-term lease, and any
contract for assignment, surrender, or sale of property right in land must be in writing and
signed by at least one of the parties
g. Rule: transfer of a gift requires some physical transfer
i. Irons v. Smallpiece- father promises to transfer 2 colts to son, dies before giving
them over; Held- in order to transfer property by gift, there must be delivery
ii. Foster v. Rice- wife on deathbed, writes letter seeking to transfer items to husband;
Held- no delivery (even tho husband went home and picked items up); note failed as
authorization
 Requirements of a will: generally must be in writing, witnessed by 1 or 2
disinterested witnesses, who must sign before a notary; goal: 1. provide
evidence/confidence and 2. create solemnity so executor gets it right
 holographic wills- handwritten; generally- might meet both goals; problem
w/solemnity- person changing their mind as they write; benefit- more likely to
be used by the poor, want to enable them to transfer
V. Forms of Ownership: Freehold Interests (Estates in Land)
A. FEE SIMPLE
1. the largest package of ownership rights, from which others are carved; indefinite in time
a. i.e.: “To Marge and her heirs”, OR, “To Marge in fee simple”, or “To Marge”
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2. heir- a person who takes under an intestacy statute; one does not have heirs until one’s death
(so Homer, Bart, Lisa, and Maggie are heirs apparent)
3. words of limitation- describe the estate (delimit it); i.e. “and her heirs”
4. words of purchase- i.e.: “to A”
B. LIFE ESTATE AND FUTURE INTERESTS
1. LIFE ESTATE- Marge may use the property fully (subject to the law of waste) until her death,
when the interest ends
a. i.e. “To Marge for life”
2. After the life estate: if the life estate comes to a natural end, it is followed by EITHER
a. REVERSION- the interest that is (i) created along w/the preceding estate (here life estate)
and (ii) immediately follows (iii) upon the natural end of the preceding estate (iv) and is
in the grantor (or her successor)
i. i.e.: Homer grants “to Marge for life, (then to Homer).” Marge has a life, and
Homer has a reversion.
OR
b. REMAINDER- similar interest but in someone other than the grantor
i. i.e.: Homer grants house “to Marge for life, then to Bart and his heirs.” Marge has a
life estate, and Bart has a remainder (Bart does not have heirs until he dies; any
children of his would have a mere expectancy).
3. Every life estate is followed by a reversion in the transferor or a remainder in a transferee.
C. DEFEASIBLE FEES AND FUTURE INTERESTS
1. Terminology for the present possessory interest varies according to whether the future interest
is in the grantor or a grantee.
2. Interest created in the grantor: 2 types:
a. Fee simple determinable- fee simple that automatically ends upon the happening of the
named event and then reverts to the grantor; the interest is followed by a possibility of
reverter (not a reversion, which is the grantor’s interest that follows the natural ending of
a life estate)
i. usually created by words of duration (i.e. “so long as”)
ii. i.e.: O grants Blackacre “to GW Law School so long as it is used for instruction in
the law, then to O.” GW has a fee simple determinable. O has a possibility of
reverter.
b. Fee simple subject to a condition subsequent: fee simple that, upon happening of the
named event, does not automatically end but can be ended by action (self-help or
lawsuit) of the holder of the right of entry/power of termination (the grantor or his
successor in interest).
i. i.e.: O grants Blackacre “to GW Law School, but if it is not for instruction in law,
the O has the right to reenter and take the premises.” GW has a fee simple subject
to a condition subsequent, and O has a right of entry.
ii. Typically, as btw the fee simple determinable and the fee simple subject to condition
subsequent, there is a constructional preference for the fee simple subject to a
condition subsequent, in order to disfavor forfeitures.
c. Fee simple subject to an executory limitation: can be like a fee simple determinable and
is followed by an executory interest. Like the fee simple determinable, the fee simple
subject to an executory interest automatically ends upon the happening of the named
event.
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i. For defeasible fees followed by an interest in a grantee, there is apparently no
analogue of the fee simple subject to condition subsequent (i.e. where action must
be taken).
ii. i.e.: O grants Blackacre “to GW so long as it is used for the instruction of law, but if
it is not used for the instruction of law, then to the Museum.” GW has a fee simple
subject to an executory limitation, and the Museum has an executory interest.
iii. In general, executor interests are interests in a transferee that (usually) divest or cut
short a previous interest.
D. CONSERVATION OF ESTATES
1. Where someone is granting a fee simple, all of the pieces have to add up to a fee simple.
2. Williams v. Estate of Williams- will transfers to decedent’s 3 daughters; if 1 daughter
dies/marries, her int’st goes to the other daughters, 2 daughters gone, no official reversion cl.
(holographic will), last daughter’s kids want to take all; Held: implied reversion in the class
of heirs at law; when daughters fail condition(s), goes to the heirs through the legal system
3. City of Klamath Falls v. Bell- corp. granted int’st to city “for so long as” the bldg. used as
library, no longer a library; Held- treated as reversion  prop. int’st passes back to corp.,
which is dissolved, so transfers up to shareholders, who, at death, transfer down to heirs
a. 2 approaches:
i. executor interest approach- subject to rule of perpetuities
ii. reversionary approach- not subject to rule of perpetuities
4. THE NUMEROUS CLAUSUS
a. Background:
i. Definition: the catalog of estates is finite and closed
ii. property, unlike contract, is not freely customizable by parties but rather is
standardized in to a closed set of approved forms
iii. flexibility is given in the recursiveness of the system (allows for an infinite set of
potential outputs)
iv. intestacy statutes- allows a state to determine a decedent’s heirs and how/when they
will inherit when no will is left
v. purpose- allows ppl to do less investigation b/c the boundaries are set and finite
when deciding whether to buy/sell (lessens information cost); cost- few pigeonholes
means fewer variations, may frustrate parties’ intent
b. Johnson v. Whiton- grandfather conveyed land to Sarah w/a fee tail (will go to you,
your heirs, their heirs; if your heir has no heir, fee tail reverts back to grantor); she
doesn’t have a fee simple; Held- fee tail is invalid b/c it fragments the estate, denies
unqualified alienation
i. resolve by: to sarah, in fee simple, but if she owns prop. at death and dies intestate,
then to the heirs on her father’s side (will go to heirs, but sarah can sell it)
c. Garner v. Gerrish- issue: whether lease granting tenant right to terminate lease at date
of his choice creates a determinable life tenancy or tenancy at will? Held- lease grants
life tenancy terminable at will of tenant, landlord lacks same right of termination
5. MEDIATING CONFLICTS OVER TIME
a. WASTE
i. there is potential for conflict when 2 + ppl hold int’sts in a single piece of property;
i.e. esp. when a fee simple is divided into a life estate w/one or more remainders
 holder of life estate will want quick return investments, while holders of
remainders want long-term investments
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ii. Waste doctrine restricts what a owner of something less than a fee simple estate can
do w/respect to co-tenancy (ppl who own at same time) or time-divided ownership
iii. Brokaw v. Fairchild- Π, life tenant (contingent remainder- if he dies w/o heirs,
goes to remaining heirs of grantor) wants to tear mansion down, build apt. bldg.;
Held- waste doctrine blocks Π from putting plot to “highest and best use”
(ameliorative waste- waste even though it may improve value)
 Court intervenes for future user: future user not here unable to participate; future
user might attach high value to mansion, not want to deal w/hassle of apt. bldg.
b. RESTRAINTS AGAINST ALIENATION
i. See MacKenzie, p. 9
ii. Mountain Brow Lodge v. Toscono- 2 restraints on use of lodge- on use and on
sale; Held- restriction on the use of the land is NOT a restraint on alienation
even if that is its effect; Lodge 82 may sell their land, but only they can use it
(treated as fee simple condition subsequent- will revert if used for wrong purpose)
iii. policy reasons against restraints on alienation- increases transaction costs for 3rd
parties (who will have to figure out the associated legal rules)
c. RULE AGAINST PERPETUITIES
i. allows people to control the use of property for one generation into the future plus
the next generation up to the traditional age of majority
ii. Rule: No interest is good unless it must vest, if at all, not later than 21 years
after some life in being at the creation of the interest
 if a life is born after the creator of the instrument dies, we treat that birth as
having occurred at the time of the prior life ending (as long as it’s a live birth)
 Vesting: removing the “suspense” element:
o if contingent remainder, vesting means ascertaining who the taker is and
the satisfaction of all conditions precedent
o if executory interest, vesting involves the taking of possession (cutting
short of prior interest occurs)
o if remainder subject to open (class gift), it means the closing of the class
iii. Practice probs., p. 617, supplement on RAP
iv. Problems with Dead Hand Control
 Symphony Space, Inc. v. Pergola Properties, Inc.- corporations are not
treated as a measuring life (must be a human being); Held- open options to
purchase commercial property are not exempt from the RAP
o but, right of 1st refusal (i.e. from co-op board) is okay; why? options tied
to 3rd parties w/o being held by ppl presently in custody (i.e. co-op board)
interfere w/alienability- cost w/o benefit
E. CO-OWNERSHIP AND MEDIATING CONFLICTS BTW CO-OWNERS
1. BACKGROUND
a. 2 main types of co-tenancy:
i. Tenancy in common- no right of survivorship; if one tenant dies, that person’s
interest will pass to that person’s heirs
ii. Joint tenancy- right of survivorship among the joint tenants (lacking inheritability
to your estate); if one tenant dies, that interest will get absorbed into the interest of
the other tenant(s)
 4 basic unities (have to have all 4, esp. first 3; if not – tenancy in common):
o time (create interest at same time)
o title (created thru same instrument)
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o interest (same interest)
o possession
b. For all co-tenancy relationships, these ppl don’t have property rights w/respect to each
other (each have an equal, undivided right to the whole; exception- joint tenancy- lacks
inheritability), w/respect to outside world, do have property rights, may exclude/sell
c. if conflict- courts won’t interfere or work out formally; no cause of action for waste btw
co-tenants; partition- stay or leave
2. PARTITION
a. Delfino v. Vealencis- Delfinos want entire plot for housing development, Vealencis
wants partition in kind- to keep house/ garbage business; Held- standard: use partition
in kind unless either phys. attributes of land make partition impracticable or int’st
of the owners would be better served by a partition; Court uses partition in kind
b. more common approach- partition by sale (avoids risk of esoteric pieces being
undervalued/ overvalued; allows sale by auction to do valuing, rather than court)
3. CONTRIBUTION AND ACCOUNTING
a. Gillmor v. Gillmor- Π sues b/c Δ uses property for grazing in a way that keeps Π off, Δ
counterclaims for maintenance; Rule of off-setting: for actions of ouster and
accounting, there must be full ouster (must really be excluded- best evid.- in writing)
to get accounting; if Π succeeds on ouster claim, Π may have to pay back cost of
maintenance
4. SEVERANCE
a. Harms v. Sprague- Harms and brother (JH) owned property in joint tenancy, brother
died; JH’s executor (Sprague) refused to give title to Harms, b/c of mortgage; lender
(Simmons) claimed title to the brother's interest as collateral for mortgage; Held- joint
tenancy not severed, and mortgage did not survive JH’s death
5. MARITAL INTERESTS
a. Tenancy by the entirety
i. has survivorship (when one tenant dies, property goes to remaining tenant)
ii. goes further than joint tenancies- both spouses must be consulted before transfers
can be made (i.e. if selling, obtaining mortgage, etc.); courts don’t get involved
b. Community property
i. Basic rule: separate title; management follows title (i.e. A’s property- owned and
managed by A; B does the same; concurrent property, acquired during the marriage,
is managed together)
ii. Intestate death (no will)- surviving spouse generally takes all of dead spouses’ prop.;
w/will- will disposes of the property
iii. many common-law states have a Forced Share Rule (even if there is a will)- allow
spouse to elect whether to force the state to give that spouse a share of the estate
c. Divorce
i. many common law states follow an equitable division approach- all things
considered analysis
ii. alimony/ maintenance- provides support for the dependant spouse (may consider
hardship, dependence, as well as comparative fault)
d. O’Brien v. O’Brien- couple divorces, ex-wife sues for earning potential of med. license
received during marriage; Court assumes ex will be surgeon; Held: medical license is
marital property, and its value (enhanced earning capacity) is subject to equitable
distribution; ct. treats value of the license as having both certainty and upside
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e. Marvin v. Marvin- couple lived together for 7 years w/o marrying; contracts case- Π
must prove consideration (not sex- illegal); Held- non-marital partner may only
recover for value of household services rendered (less value of support received)
when parties expressly contract for such rights (w/ $ expectation); no contract here
6. DEBT VS. EQUITY (categorically different types of risk)
a. debt- highly predictable; low risk and variance; certain payments at pre-determined rate
b. equity- (i.e. owning shares in a business) great variability depending on how bus. does
VI. Entity Property
A. BACKGROUND
1. entity property devices permit the management of entity resources to be separated from their
use and enjoyment
a. devices whose function is to govern multiple possessory interests in the use of a single
complex of assets- leases, co-ops, condos
b. devices whose function is to govern multiple nonpossessory interests in the enjoyment of
assets- trusts, corp.s, non-profit entities, and partnerships
B. LEASES
1. why enter into a lease? allows for management by someone else, less capital required to share
in the larger enterprise, risk-spreading device (if you end up wanting to unload quickly)
2. TYPES OF LEASES
a. term of years- has fixed termination date; SOF in most states- must be in writing if longer
than 1 year; neither party must give notice before terminating, just ends on specified date
b. periodic tenancy- a lease that automatically rolls over for a stated period of time (usually
a year or a month); termination by either party requires notice
c. tenancy at will- a tenancy that lasts only so long as both parties wish it to continue; either
party can terminate at any time for any reason
d. tenancy at sufferance- when an individual, who was once in rightful possession of
property, holds over after this right has ended
3. INDEPENDENT COVENANT MODEL- all covenants must be performed w/o regard to whether
other covenants have/ can be performed; i.e. if landlord fails to perform a covenant (repair
premises), tenant must still pay rent; remedy- sue for breach of covenant
a. Paradine v. Jane- tenant frustrated from harvesting his crops, expelled by Prince,
behind on rent; issue: should landlord or tenant bear risk? Held- tenant bears risk, must
pay rent; tenant is “residual claimant” w/respect to economic gains/losses; he’d also
get any upside; covenant to pay rent independent of a range of other obligations
i. most important covenant by landlord: the covenant of quite enjoyment - promise
not to interfere w/tenant’s possession of land during term of lease (implied in law);
promise to pay rent by lessee also implied in law
b. Constructive Eviction
i. Bleckett v. Olanoff- landlord owns apt. bldg. and bldg. w/bar; Δ tenants land and
refuse to pay rent b/c of noise from bar, assert constructive eviction, Πs claim no
control over bar tenants; Held- 3 part test: landlord has power, conflict was
foreseeable, failure by landlord to control problem; here, landlord is responsible
c. Surrender
i. landlord and tenant create mutual release of further lease obligations by implied
contract; i.e. tenant leaves permanently, and landlord accepts offer of surrender
ii. Rule: requires overt act of surrender (offer); and overt act of acceptance (can’t
be silence)
iii. tenant off the hook for rent at the moment of acceptance
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iv. In re Kerr- landlord recognized surrender, rent only due up till time of acceptance
4. DEPENDENT COVENANTS
a. contractual aspect of landlord tenant law moved away from independent covenants
toward the dependant covenant model
b. Medico-Dental Bldg. v. Horton- tenant pharmacist leaves bldg. after new doctor starts
drugstore; consideration in contract was that he’d have exclusive right to sell meds; Helddoes the agreement go to the essence of the deal? yes, money/rent is linked to
exclusivity here (goes to essence of the deal), so no ongoing obligation to pay rent
c. Implied Warranty of Habitability (IWH)
i. Javins v. First Nat. Realty Corp.- tenants refuse to pay rent b/c of housing code
violations in bldg., assert violations were not pre-existing to moving in; Held- the
housing code violations are a breach of the implied warranty of habitability,
entitling the tenants to withhold rent
ii. remedies? 1. rescission of lease by tenant, 2. order of spec. perf., 3. damages for
breach of IWH, 4. set-off against rent liability, 5. w/holding rent until corrected
iii. method for determining damages? 1 option: value of premises if compliant w/IWH,
minus value in non-compliant condition (awards windfall to tenant)
d. Landlord’s duty to mitigate if tenant defaults
i. Sommer v. Kridel- tenant changes his mind about moving in, writes letter, landlord
ignores letter, waits 16 mos. and attempts collection; Held- landlord has a duty to
mitigate (and burden of proof mitigation occurred) if tenant defaults
ii. consider surrender as an option; i.e. changing locks amounts to acceptance of
surrender (at which point tenant’s responsibility to pay rent ends)
e. Transfer of Interests
i. Mullendore Theatres, Inc. v. Growth Realty- issue: does a covenant run w/the
land (can orig. security deposit be recovered after prop. changes hands)? Held:
Analysis: 1. does it “touch/concern” the land (i.e. benefit the land); 2. do
parties intend it to run w/the land; here, does not run
 when reversion is sold, new landlord and tenant only bound by provisions of the
original lease that “run w/the land” (use of funds to benefit the property)
 $ is fungible, less likely courts will consider it to have a particular purpose
ii. Transfers of tenant interests: Assignment and Sublease
 2 sources of landlord-tenant obligation- privity of contract and privity of estate
(requires interests directly nested w/each other and 1 party in actual possession)
 sublease: landlord has fee simple, carves out a prime lease from the fee simple,
prime tenant carves out a sublease from the prime lease
o each person deals w/the tenant immediately below
o landlord and sub-tenant not bound by privity of contract if they have not
entered into a contractual rel’ship
 assignment: landlord has fee simple, carves out lease to prime tenant, prime
tenant transfers prime lease to first assignee (prime lease transferred as whole)
o assignee steps into shoes of prime tenant, deals directly w/orig. landlord
o orig. landlord and first assignee are in privity of estate
 Jaber v. Miller- Jaber transferred lease to someone whom Miller leased it from,
Miller- sublease terminates b/c of fire, Jaber- assignment, $ still due b/c contract;
Held- intention of parties at time of lease formation determines whether
transfer of a lease is a sublease or assignment; here, assignment was intended
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o court assumes provision in orig. lease providing termination in event of
destruction is not a covenant that runs w/the leasehold upon assignment
 Kendall v. Ernest- provision in lease that lessee may not assign/sublet w/o
lessor’s consent; Held- default for approval clauses now presumptively not
okay (changed) (rel’ship btw landlords/tenants is now more impersonal, need to
protect esoteric preferences less impt)
o Rule- where a commercial lease provides for assignment only w/prior
consent of lessor, such consent may be w/held only where lessor has a
commercially reasonable objection to the assignee/ proposed lease
5. FORM LEASES
a. Check-out sample online
b. immutable rule- cannot be changed/ contracted around
c. default rule- may be contracted around
C. CO-OPS AND CONDOMINIUMS
1. why do they persist at a high frequency?
a. H. Hansmann- tax environment is conducive to condos; subsidies given in order to
increase ownership; big deduction on income taxes
b. people want more freedom to change interior of their home
2. Nahrstedt v. Lakeside Vill. Condo Assoc.- woman buyers condo, clause in assoc.
agreement prohibits her keeping cats; Held- under CA law, clause not unreasonable (not
arbitrary, burden doesn’t outweigh benefits, and not against pub. pol.)
a. more externalities created by cats and fewer alternatives open to lady, more likely that the
rule is unreasonable
3. 40 W. 67th St. v. Pullman- crazy tenant, Pullman, unanimous vote to kick him out; Held- if
there is a legit co-op/condo purpose to kicking person out, board may do it (condo boards
are given a lot of deference)
D. NON-POSSESSORY INTERESTS: TRUSTS AND CORPORATIONS
1. SPEND-THRIFT TRUSTS- limit ability to assign
a. assets of trust cannot be reached by individual creditors of beneficiaries
b. purpose- provide $ support for ppl regarded as less than capable of managing $ affairs
c. Broadway Nat’l Bank v. Adams- creditor tries to obtain debt from trust created for Δ
Adams by brother; Held- income of a trust created for benefit of Δ cannot be reached
by attachment before it is paid to him; trust- separate legal entity that owns stuff; also,
brother can’t transfer right to the payment
i. criticism: creditors don’t know his assets; restraint on alienation allows stuff to sit
around w/o being efficiently used (by dead hand control); C. Gray- people never
learn to handle their $ (moral view)
2. PRINCIPAL-AGENCY RELATIONSHIPS
a. Agency cost- i.e., having management rune your bldg, cost of making sure it’s done right
b. Agent owes principal some duties:
i. Duty of care- do a good job; standard? business judgment rule- must use
reasonable business judgment
ii. Duty of loyalty
3. TRUST FIDUCIARY DUTIES
a. Rothko v. Reis- executors of Rothko’s trust breached fiduciary duties (made sales
contrary to int’sts of beneficiaries for personal gain); determination of damages (sale
price, market value at time, today’s value)? Held- Court uses today’s value b/c there
was a duty to retain the paintings (Kieff- duty was just to sell them honestly)
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4. CHANGED CIRCUMSTANCES
a. Wilber v. Owens- Wilber, Bamford’s executor, seeks construction of the will, which
created a trust to carry forth research from his incoherent “Random Scientific Notes,” ;
Held- testator had gen. charitable intent; apply cy pres to change terms/ purpose b/c
fulfillment of specific intention would frustrate Bamford’s gen. charitable intent
5. CORPORATIONS
a. corp.s allow an artificial entity to own property in its name as if it were a person
b. shareholders own corp., which owns title to various assets
c. shareholders elect board of directors, who appoint managers to manage/control
d. corp.s and partnerships shield individual shield individual shareholders/partners from
claims of creditors
e. officers of a corp. are subject to fiduciary duties (loyalty)
VII. Title Records and the Transfer of Property
A. NEMO DAT
1. “no one can give that which he does not have”; derivation principle- the transferee’s rights
derive from those of the transferor
2. nemo dat analysis requires finding everyone in the chain, particularly the Π (i.e. tracing back
ownership through a series of legitimate transfers to an act of legitimate original acquisition)
3. RULE- one cannot acquire good title from a thief
4. Kunstsammlungen Zu Weimar v. Elicofon- 2 paintings stolen from German museum
during WWII, bought by Elicofon from service-member; Held- transfer of possession but not
of property right service-member was unable to convey title b/c paintings acquired by theft
B. THE GOOD FAITH PURCHASER- EXCEPTION TO NEMO DAT
1. If Δ purchases good(s) in good faith, the law will generally give Δ title to goods as a good
faith purchaser; Rule: voidable title gives a power to transfer to a good faith purchaser
2. Kotis v. Nowlin Jewlery, Inc.- Kotis buys Rolex from Sitton, who bought it w/a forged
check at Nowlin’s; Held- Sitton had voidable title, but Kotis did not act in good faith;
evidence of lack of good faith: unreasonably low price (ev. it’s stolen), inquiry notice- duty
to ask more Qs if seems too good to be true, Kotis admitted lying to Nowlin (hurt credibility)
3. Hauck v. Crawford- Hauck, farmer, thought he was signing a lease, but it was actually a
deed to mineral rights; Held- if Hauck was negligent in signing (w/o knowing contents), he
should be held responsible
C. PROVING OWNERSHIP – TITLE SEARCHES AND RECORDING ACTS
1. TITLE SEARCHES- title search requires building a chain of title; will involve a relevant time
period (usually 30- 40 yrs.)
a. Method: search back through grantee index (who person you are buying from bought
from and back) until you can stop; then work back up through grantor index (coming
forward in time)
b. want them to match up and ensure nothing funky happened
c. baseline is nemo dat, and “first in time, first in right”
2. REGISTRATION- resolves potential disputes about title ex ante (at the time of transfer)
3. RECORDATION- disputes about title resolved ex post (once they arise)
a. makes available for public inspection copies of in personam transactions; generates
constructive notice to all subsequent purchasers in the chain of title
b. nearly all U.S. localities use recordation
c. recording acts protect good faith purchases for value; incentive to file deeds
d. Statutes:
i. Race Acts- first of 2 property claims to file has the better claim (1st to record wins)
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 theory: once you’ve recorded, everyone else has constructive notice
 exception to the good faith purchaser rule
ii. Notice Acts- a subsequent good faith purchaser for value will win unless he has
notice; preserves good faith purchaser rule
iii. Race-Notice Acts- purchaser for value will only win if she has no notice and records
first
e. Shelter Rule- allows a person protected by statute to transfer, and that person will have
claim of right (i.e. O conveys to A, A doesn’t record, O then conveys to B, who doesn’t
know about the prior conveyance to A, B records; if B gifts to C, C prevails against A
f. PRACTICE PROBLEMS, p. 923
4. Hood v. Webster- woman’s husband devised her farmland; he wanted the estate to go to his
bro upon her death; she granted it to her brother, nephew for $1, then died; Race Notice
Recording Act; Held- Π, brother, wins; the $1- not enough evidence of consideration;
party claiming good faith for value bears the burden of proof
a. dissent- not adequate showing of bad faith to cut off the claim
D. LIMITS OF TITLE SEARCHES
1. ADVERSE POSSESSION EXCEPTION- when adverse possession occurs, a new chain of title is
started in the adverse possessor; exception to nemo dat- allows shift in title other than by
claim of voluntary transfers
a. Mugaas v. Smith- woman gains title by adverse possession (fence- open and notorious);
once SOL has run, AP has title against appellants, who purchased the land; holds
despite there being no record in registry and that possession is no longer open/notorious
2. WILD DEEDS- recorded but cannot be located in the transferor’s chain of title
a. Zimmer v. Sundell- issue: Π’s entire chain of title back to the common grantor not
recorded until after Δ’s entire chain of title was recorded; Held: Πs lose b/c their deed
wasn’t recorded back to orig. grantor 1st
b. Rule: if 2 claims originate from same grantor who had a wild deed, winner is the
one who had the chain of title recorded first
VIII. Law of Neighbors
A. NUISANCE- anything which disturbs free use of one’s property, or renders its ordinary use
uncomfortable
1. PRIVATE NUISANCE- a substantial and unreasonable interference w/the private use and
enjoyment of one’s land
a. Hendricks v. Stalnaker- Πs putting in septic tank, Δ raced to have a well drilled; Πs
then unable to obtain permit for their septic tank; Held- well not unreasonable use of
land (less invasive burden than septic tank)
i. racing problem (racing toward common prize)- incentive to deploy assets sooner
than they need – problematic; consider externalities from both directions
b. Test- reasonableness in relation to particular locality; balance landowners’ int’sts
2. Adams v. Cleveland-Cliffs Iron Co.- landowners, Adams, sue for vibration/dust coming
from mine; Held- not trespass, but is possibly nuisance b/c the intrusion is intangible;
remanded
3. MODERN APPROACH/ TEST:
a. trespass: must have physical invasion by a tangible thing; usually immediate; SL (no
state of mind requirement)
b. nuisance- thing/activity that substantially and unreasonably interferes w/Π’s use and
enjoyment of his land
2. Boomer v. Atlantic Cement- neighbor landowners complain bad air quality/smoke/dirt
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a. “Permanent damages” (or no damages) may be applied if economic/ social value of
nuisance is high enough.
b. Look at CCA. Remedy options: 1. enjoin for period of time to give time to make
technological changes; 2. grant injunction for finite period, vacated upon receipt of perm.
damages.
i. Ultimate Coasian problem- 2 resources in conflict.
ii. Expansion of the universe: homeowners: others suffering from pollution; cement plantclosure causes lost jobs, lost taxes, loss of needed cement, collateral businesses hurt
4. Spur Industries- geriatric development next to cattle feed lot, smells; development has to
pay for relocation- equitable remedy. Coasian problem.
B. EASEMENT- contract in which an owner agrees to waive his/her right to exclude certain kinds of
intrusions by another; always run w/the land
1. Baseball Publishing Co. v. Bruton- Δ makes contract (but doesn’t seal) to rent wall to Π
for billboard for 5 yrs.; Δ returned Π’s payment, and after 1 yr., removed Π’s sign; Held- not
a lease (b/c owner maintained possession) and more than a license; it is an easement, negative
injunction granted to Π
2. Fontainebleau Hotel Corp. v. Forty-Five Twenty-Five, Inc.- Δ hotel constructing
addition whose shadow would block light/air to Π’s property in South Beach, FL.; Rule:
Access to light/air is NOT a lawful right; Ancient lights concept (you have some possession
of light/access; idea of property as cylinder going up to god) repudiated in U.S.
3. CREATION OF EASEMENTS
a. Schwab v. Timmons- petitioners want court to grant them an easement on a private
road so they can get to their land; Held- no easement; petitioners had created the
necessity by selling off part of their land
b. Warsaw v. Chicago Metallic Ceilings, Inc.- Π had been using Δ’s property to turn his
trucks around for 7 yrs.; Held- elements necessary for prescriptive easement (use that
is open, notorious, continuous, and adverse for an uninterrupted period of 5 yrs)
satisfied
i. Δ could have prevented easement by giving permission to Π to use land (not
adverse, lowest cost option, revocable)
ii. damages rule- entitlement stays w/true owner, but adverse owner can force transfer
by paying owner
c. Holbrook v. Taylor- appellant granted permission to use rd. to others, then appellees
used it w/permission and improved it; Held- a license becomes irrevocable (owner is
estopped) where licensee has exercised the privilege and made improvements
C. COVENANTS- generally involve the right to insist on the use or nonuse of land; prescribe a
system of governance rules
1. EQUITABLE SERVITUDES
a. Tulk v. Moxhay (Engl.)- negative covenant not to build on Leicester Square, Δ refuses
to abide by covenant b/c it wasn’t incl. in his deed (was only in 1st deed) so no horizontal
privity; Held- enforceable by court of equity, does “touch/concern” land; there was
notice, requires enforcement
i. Rule: horizontal privity not req. for burden of covenant to run at equity
2. REAL COVENANTS- U.S. covenant doctrine- under certain circumstances, a covenant
attached to fee simple property will bind successors
3. Neponsit Property Owners’ Assoc.- common-interest community has a covenant to pay $
for maintenance of public areas (roads, parkets, etc.); sunset clause incl. (endpoint for
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covenant); Held- covenant enforceable; there was intent it would run w/land, does “touch and
concern”
a. courts dislike these covenants b/c lack incentive for seller to transmit the info to a buyer
b. Requirements of covenant that runs to successors of orig. landlord or tenant:
i. the landlord and tenant intend that they will run
ii. the covenant is one that “touches and concerns” the land
iii. In Neponsit- 3rd req. added: there must be “privity of estate” btw the party claiming
benefit of covenant and party subject to the burden
4. REQUIREMENTS FOR COVENANTS TO RUN
a. Real Covenant Theory
i. At law (damages action), for the burden of a promise to run, one had to establish:
 intent for the burden to run (by language or inferable by context)
 horizontal privity (traditionally landlord-tenant rel’ship, later expanded)
 vertical privity- successor in int’st to person who covenanted for burden must
hold entire durational interest held by the covenator at time covenant was made
o if landlord-tenant rel’ship, would be present in assignments, but not in
sub-leases
 touch and concern- covenant must “touch and concern the land”
ii. At law, for the benefit of a promise to run, there are fewer requirements (b/c more
incentive for owner/seller to advertise benefits):
 intent for the benefit to run
 vertical privity- the successor need only succeed to some estate (doesn’t have to
be an estate of the same duration as the covenator’s)
 touch and concern
b. Equitable Servitude Theory
i. Req.s for burden of a promise to run at equity (granting of specific performance):
 intent
 notice- if notice not in deed, actual or inquiry notice must be present
o inquiry notice- furnished by facts that would make a reasonable person
inquire further and find the covenant; may be satisfied by constructive
notice (i.e. recordation)
 touch and concen
ii. for benefit of a promise to run at equity:
 intent
 touch and concern
c. The 3rd Restatement
i. not adopted by any court; relaxes req.s; abolishes “touch and concern” doctrine and
the privity requirements; baseline grounded in contract and party intent
ii. gives servitudes a contractarian flavor w/writing req.s and exceptions for violations
of public policy, unconscionability, etc.
d. Eagle Enterprises, Inc. v. Gross- appellant wants fee specified in covenant for supply
of water, but resp. has obtained water elsewhere; Held- covenant is not a core essential to
property, doesn’t “touch/concern” land; effect- changed circumstances, unenforceable
i. court concerned about dead hand control
e. Notice and the Common Plan- must have notice for a covenant to run at equity
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i. Sanborn v.McLean- Δs want to build gas station in a common development;
covenant not in McLean’s chain of title; Held- reciprocal negative easement
enforced; there is inquiry notice and constructive notice of the original restriction
f. Conservation easements- servitudes that restrict future development of land
g. Termination of Covenants
i. Bolotin v. Rindge- common development w/restriction against commercial use;
Held- enforceable; subjective considerations essential (personhood); no proof
restrictions will no longer benefit Δs; no changed circumstances
 changed circumstances doctrine- even if we have good intentions in structuring
the arrangement for the future, things could change, don’t want to be too bound
 drafting w/o relying on CC? sunset provisions, draft states intent
ii. Abandonment of a covenant
 Peckham v. Milroy- home daycare in neighborhood claims covenant
unenforceable; abandonment must be habitual and substantial; Heldcovenant enforceable, no unreas. delay (laches arg.); no estoppel (Peckam
objected at beginning); no abandonment of covenant – few instances not enough
D. ZONING
1. ZONING- regulation of land uses through a general regime permitting and forbidding particular
uses of land in certain locations; state and local law; number of varieties (1 is Euclidean)
2. Euclid v. Ambler- Euclidian zoning scheme (cumulative- one zone can use this type, as can
those below it); zoning prohibited Ambler from industrial construction; Ambler- due process
issue (no rational basis); Held- upholds zoning, there is rational basis (safety, cleanliness)
a. problems w/zoning: requires faith in gov’t actors; sticky, slow to change; fixed set of
rules so no coasian bargaining
3. Southern Burlington v. Mt. Laurel- Πs challenge Mt. Laurel zoning ordinance asserting it
excludes low/moderate income persons from obtaining housing; Held- Πs must show lack of
housing and municipality must show substantive valid reason for it; zoning upheld
a. Rule: Zoning must promote the general welfare, and cannot be motivated by other
considerations (i.e. taxing reasons)
IX. Government Forbearance – the extent that gov’t should forbear from interfering w/or frustrating
previously recognized property rights
A. Charles River Bridge v. Warren Bridge- Mass. has another bridge built near Charles River
Bridge (CRV); CRV mad b/c their charter is still running; Held- charter didn’t grant exclusive
rights, and can’t read it in; don’t want preemptive force w/initial allocations, new needs arise
(creative destruction), destroy old, build new
1. downside- disincentive for investment b/c ppl lose their property, less likely to maintain it
2. alternative- treat it as a taking and have the gov’t pay just compensation for loss of bridge
B. DUE PROCESS- claims require a threshold showing of a liberty hit or a property hit
1. Board of Regents v. Roth- prof fired for making anti-war statement; issue- is professorship
property, and ok to take away w/out process? Held- no due process problem; due process
involves liberty and property, and professorship not clearly related enough to those rights
2. Town of Castle Rock v. Gonzales- woman has restraining order, husband violates, takes
kids, police don’t respond for a long time, shootout, kids die; Held- no due process created
in restraining order; discretion given to gov’t to under-enforce (want to avoid suits
against PDs)
C. OTHER LIMITS ON GOV’T ACTION
1. vested rights: presumption against retroactive decision-making
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a. many Const. clauses read as limiting retroactivity, but none, standing alone, establishes a
broad, anti-retroactivity rule
b. presumption of prospectivity; if gov’t statement is clear in asserting retroactivity, then ok
2. stare decisis- what has been decided, stays decided; particularly relevant in contract and
property settings
3. also: government contracts, takings, and treaties
X. Takings
A. EMINENT DOMAIN
1. gov’t may to compel a transfer of property rights in return for payment of just compensation
2. constitutional requirements: must be a “public use”, property owner paid “just compensation”
3. PUBLIC USE REQUIREMENT
a. actual use by public (some state courts) or public advantage benefit (Sup. Ct.’s view –
any project w/some public interest rationale)
b. Kelo v. New London- New London approved development plan by private co., used
eminent domain to acquire properties in a “blighted” area; issue: plan for taking qualify
as “public use”? Held- taking okay, limit- there must be some kind of social benefit
i. problems: home’s personhood value to Kelo; impact on disenfranchised minorities;
poss. purposeful targeting or reckless disregard (invidious intent/impact); favoring
of a co., political payoff; slippery slope of wealth transfer (O’Connor- dissent)
ii. resulted in popular constutionalism/ repudiation of Kelo, public backlash;
O’Connor’s dissent better guide for future scope of eminent domain
4. JUST COMPENSATION – VALUATION
a. United States v. Miller- gov’t orig. took land for reservoir; later taking to build
highway around reservoir; issue: at what point to measure fair market value? options: at
time of taking (incorp. value added by reservoir) or earlier value (before reserv.);
General rule: evaluate value at time of taking; exception: where it’s probable
(followed by this court); Held- court shouldn’t have to pay for added value of the dam;
earlier value counts b/c this taking was probable
i. problems: allows gov’t to use lowest figure; expectations of landowners dashed,
encourages speculators to snatch up land, build expensive stuff there
ii. should gov’t pay value of it if used for highest/best use
B. REGULATORY TAKINGS
1. Penn. Coal Co. v. Mahon- homeowner sold mineral rights, co. wants to mine, would
damage Mahon’s house; state statue- can’t mine if it’ll harm residence; Held: not proper
exercise of police power/taking
a. Evaluate: 1. diminution in value (relative value of taking compared to thing taken/
proportionality); 2. need to protect public (from nuisance) (here- can be dealt w/other
ways); 3. reciprocity of advantage (here- taking whole value of contract)
2. Penn Central v. NY- Penn wants to build office bldg. on top of station; landmark
commission disallowed b/c landmark status; Held- proper exercise of police power; Brennanno diminution of value, pub. nuisance not serious issue, doesn’t interfere w/Π’s primary
expectation (Brennan’s test) (still can use that property in other ways)
a. Renquist (dissent)- no reciprocity of advantage, doesn’t make everyone better off, singles
out ppl w/ landmark properties, who pay cost while everyone else benefits
3. Loretto v. Teleprompter- NY statute req. property owners to permit
installation/maintenance of cable television wires; Held- is a taking; minor but permanent
physical occupation of Loretto's property constitutes regulatory taking of property, just
compensation is due
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a. Rule: if gov’tal regulation results in permanent physical occupation of property, it’s
a regulatory taking (regardless whether it achieves an important public benefit or has
only minimal economic impact on owner)
4. Lucas v. SC Coastal Council- Π bought 2 lots on Isle of Palms to build homes on; SC
statute then barred his plans; Held- court dislikes “all things considered” analysis from Penn
Central, establishes more categorical approach, fears police power exception to taking
a. Epstein- categorical better, easier to predict outcomes, plan, fewer cases go to court; vs.
Posner- categories tie you down, better to take each set of factors, analyze efficiency)
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