1.


Democracy

Economic Efficiency - protect property to encourage production/investments

Personal development - property tied to personality

Labor/fairness - natural rights

Certainty/peace & order

 Tangible (anything physical with value, its valuable simply because of its physical existence) v. Intangible (stocks, intellectual property)

Accretion - an increase by natural growth, property increases by natural additions (i.e. beach)

Avulsion - sudden removal of soil by change in a river's course, from the land of one owner to that of another; property will not change with course of river


Right to use (may be limited)

An owner does not have an absolute or unlimited right to use his land in a way which injures the rights of others.

Nuisance and spite fence doctrine were covered

Sundowner Inc. v. King

Facts: One hotel owner erected a fence, and the adjoining owner sought removal of the fence

Issue: Can a person erect a structure on their property that has no useful purpose?

Holding: No.

Rationale: The Court looked at the intent of the parties in the erection of the structure.
May not erect a "spite fence" solely to annoy the neighbor.

Right to alienate (sell, throw away, give away) any transfer = alienation

Right to destroy

Can also be limited when the destruction of the property is deemed "senseless" and harmful to the rights of others

Right to modify

Right to exclude others' use

Implemented through the tort doctrine of trespass

Permission can be given through consent or necessity

Jacque v. Steenberg Homes, Inc.


Sup. Court of WI, 1997
Facts: Steenberg wanted to travel across Jacque's property with a mobile home; The
Jacques said no, Steenberg went ahead and plowed a path through their property to deliver the mobile home; Jacques sue for intentional trespass

Issue: Should the Jacques receive punitive damages if you are not entitled to them?

Holding: Yes.

Rationale: There is a constitutionally protected right to exclude others from using your property. If there is no sufficient means to protect this right in the court system then the right cannot be adequately exercised.

State v. Shack
1


Facts: The defendants wanted to aid some migrant workers on private property; the owner of the property wanted to be present for the meeting and defendants refused to comply; owner then called police. State brought action against defendants for trespass

Result: Court found no trespass because the owner did not have the right to bar government services to the workers; by housing the workers, the owner ceded some property rights to exclude (privacy) "title to real property cannot include dominion over the destiny of persons the owner permits to come upon the premises.

Right to devise/will property


Land use - judicial, private agreement (covenants/easements), government (zoning)

Pierson v. Post

Facts: Both parties were hunting on wild, uninhabited land, hunting a fox/wild animal; Pierson shot the fox that Post was actively hunting

Conversion - someone who takes your property; must prove the property was yours

Issue: Did Post acquire a property interest just by active pursuit of the fox?

Holding: No.

Rationale: Must mortally wound the fox and continue in pursuit of the fox (short of actual possession) <--favors economic efficiency; property acquisition through capture
 Dissent: If there is a reasonable prospect of capture, then there is a property interest

White v. Samsung Vanna White Case

Facts: The defendant ran an advertisement with a robot dressed in a wig, gown, and jewelry that was selected to resemble Vanna White

Issue: Is there a right to publicity?

Holding: Yes.

Rationale: Persona as private property, provides incentive for investment and innovation. (property acquisition through creation)
 Dissent: Diminishes the rights of the public to draw ideas from a rich and varied public domain, right to mock for profit as well as fun, the cultural icons of our time.
Negates public right to improve or expand on an idea or image

Johnson v. McIntosh

USSC, 1823

Facts: Plaintiff wanted to have his title (that was granted by a tribe of indians) recognized, and wanted to eject McIntosh

Issue: Can title granted by native americans be recognized in federal court?

Holding: No.

Rationale: Now operating under a rule of conquest. "All our institutions recognize the absolute title of the crown, subject only to the Indian right of occupancy, and recognize the absolute title of the crown to extinguish that right.

Property rights are relational; whoever gets there 1st and occupies wins (1st possession rule)

Economic efficiency encourages exploration; certainty furthers the idea of knowing whose land it is; fairness says if you did the labor, its yours

This case eliminates 1st possession rule, went with a rule of conquest; Only reason there are property rights is because law and society decided what property was

It's possible to have some property rights and not others (U.S. to native americans
"you can occupy, but not sell land")
2


Moore v. Regents of UCLA

Facts: Moore is suing for conversion because physicians used cancer cells to create profitable research; conversion is a tort that protects against interference with possessory and ownership interests in personal property

Issue: Whether Moore retained property rights after cells left his body
 Holding: No.

Rationale: Plaintiff retained no continued/sufficient property interest in the cells after they left his body. An act for conversion is not necessary to protect patient's rights.
2.


Adverse Possession

Must be actual, exclusive, open/notorious, continuous, hostile/state of mind/adverse --> ALL DURING THE STATUTORY PERIOD

Reasons to allow adverse possession:

Furthers econ. efficiency to have adverse possession - "owners sleeping on rights"

Encourages the productive use of land; correcting title defects; encouraging development; protecting personhood (attachment to the land over time)

Hostile or Adverse possession standard:

State of mind generally irrelevant

Satisfied so long as the owner has not authorized the occupancy

Some states will allow if the AP has a good faith belief that he/she owns the land (claim of right will be considered hostile)

Rare view is to say the AP must have occupied the land in bad faith

Can satisfy these elements through tacking/privity as well need to review

AP issues arise when a quiet title action comes up or as a defense to an action

When there is a disability, the statutory period may be extended or suspended (i.e. imprisonment, minority, lack of mental capacity)

Fulkerson v. VanBuren

Facts: A church had been operations on Fulkerson's property for over the statutory period of 7 years, did meet the elements of open, exclusive, and actual possession, but at issue was whether their possession was adverse

Result: the court found that the church did not really have the intent to possess the land

Must occupy the land as the true owner would

Don't have to be there all the time to possess the land

Howard v. Kunto

Facts: Deed descriptions were 50 feet off in calculations, all parties were occupying land they didn't really own

Result: Must use the land (for the statutory period) in a way that is disputed; must continually posses to put original owner on notice; summer occupancy does not destroy the continuity provision being met in this case

Privity = a relationship between the parties that would allow a transfer of property due to the closeness of the possessor and prior possessor

 Rule of Capture

Rule of capture involves ancient doctrine of ferae naturae - chattels that are seen as
3

unowned while roaming in their natural habitat

State v. Shaw

To acquire property rights over a wild animal is that it must be brought under your certain control

Facts: Fishermen come along and take fish from the net (that was put in place by Grow
& Hough), State brought charges of larceny against Shaw

Issue: Had G&H brought the fish under certain control?


Holding: Yes.
Rationale: The nets being in place had captured and confined the fish and brought them within G&H's certain control. The law does not require absolute security against the possibility of escape.

Policy and fairness arguments come into play; G&H had labored to capture the fish, they should have the first shot at the fish

Econ. efficiency wants to promote capitalism and good business practices

Externalities - Costs and benefits associated with an activity which are imposed upon others not involved in the activity and not taken into account by the decision maker

Popov v. Hayashi

Facts: Popov had "caught" Barry Bonds' 73rd homerun baseball but was trampled by a crowd of people and lost certain control of the baseball. Hayashi fell as well but saw the looseball and put it in his pocket. Popov claims Hayashi took the ball and refused to give it back.

Issue: Whether Hayashi converted the property of Popov?

Holding: No.

Rationale: Popov may have had a pre-possessory interest, but Hayashi brought the ball in his exclusive dominion and control. Fairness dictates the ball be sold and the proceeds be split between the parties.

Finders

4 different types of "found" chattels

Lost property - owner unintentionally and involuntarily parts with it (will usually go to the finder)*

Mislaid property - owner voluntarily and knowingly places it somewhere, but unintentionally forgets it

Abandoned property - owner knowingly relinquishes all right, title, and interest to it
(usually goes to the finder)*

Treasure trove - owner has concealed it in a hidden location long ago --> NOT
IMPORTANT IN THIS COURSE

*unless found at an owner-occupied residence

Armory v. Delamirie

Facts: A chimney sweep found a jewel while on the job; legal action for trover
(brought to recover the value of personal chattels wrongfully converted by another to his own use)

Result: The chimney sweep was responsible to repay the value of the jewel. Although
 he found the jewel, he had an interest against everyone except the rightful owner
Rule of law: the finder does not have an absolute right to the chattel, but can hold the property against everyone except the rightful owner
 A subsequent possessor’s full payment to the finder bars any later action by the true owner against the possessor; however, the true owner can compel the successful finder to transfer the payment to her
4


This was an action in trover, the plaintiff sought damages for the wrongful taking of property; an action for replevin would have recovered the actual jewel

Hannah v. Peel

Facts: Plaintiff found a brooch and informed his commanding officer and returned it to the police. After time, the police gave it to Peel and then plaintiff brought an action claiming that he rightfully possessed the brooch against all other persons.

Result: Does not possess a thing which was lying unattached on the surface of his land even though the thing is not possessed by someone else. Plaintiff had prior possession, was on notice of its value. Judgment for Plaintiff; knowledge of chattel but leaving it does exercise control (constructive possession)

Locus in quo - location of the find

McAvoy v. Medina

Facts: Plaintiff was a customer in Medina's shop and found a pocketbook. Plaintiff told
Medina he could keep it and advertise for it. Plaintiff then asked for the pocketbook back, after the owner had not been found. *Mislaid property*

Result: Plaintiff did not acquire any rights to the lost property (as it was found in defendant's shop). Mislaid property belongs to the owner of the locus in quo, not the finder.

Goes to fairness - ensures a better chance that the true owner will find it, facilitates return to true owner

Bailments

Rightful possession of goods by one who is not the owner

Bailor - person who delivers the chattel

Bailee - person who receives the chattel

Mutual benefit

Primary benefit of the bailee

Duty to take extraordinary care of the chattel

Primary benefit of the bailor

Only liable for gross negligence or bad faith

Cannot cause damage

Constructive bailment is always for the primary benefit of the bailor; only applies to lost property
 In determining finder’s rights, the court will consider:

Nature of item

Location of the find

Character of the finder
 Consider the “best” result

Adverse Possession of Chattels
 The SOL bars the prior owner from bringing an action to recover possession, thus vesting title in the adverse claimant

Generally a lower SOL than that of real property (2-6 years)

Must still meet all elements of adverse possession

Tacking is permitted in most jurisdictions
 Limitations period begins when the adverse claimant’s possession becomes open and notorious

Discovery rule will be told until the true owner discovers, or reasonably should have discovered the location of the property
5


A thief cannot transfer valid title to a good faith purchaser unless the thief gains a new title by adverse possession

Reynolds v. Bagwell

An action in replevin

Plaintiff is seeking to recover a violin, bow, and case; Violin etc. was deemed stolen in
1933, plaintiff discovered it in defendant’s possession in 1938; The defendant alleged that he bought the violin in good faith, and had not concealed his purchase; District court found for plaintiffs, defendant appealed

Issue: Whether the SOL is a bar to plaintiff’s action?

Holding: Yes.

Rationale: The OK statute deemed 2 years as the SOL for adverse possession of personal property through stolen behavior or good faith. Also said that it had to be open or notorious. There was an issue of whether the defendant concealed the stolen personal property. Court says there has to be an act of the thief or finder of the property in order to be deemed concealment of the personal property (must be an act that places the property in a situation which tends to prevent its discovery)

Court found that evidence of change to the violin was not made until three or four years after the defendant acquired the violin which still defeats plaintiff’s claim since it was beyond the 2 years

O'Keefe v. Snyder

Initial action was for replevin
 Paintings were stolen from an artist Georgia O’Keeffe; Trial court granted sum judgment because O’keeffe brought the action more than six years of the alleged theft;
Paintings were stolen in 1946, reported them stolen in 1972, found them in a consignment shop n 1975

Court favors the discovery rule as opposed to the theory of adverse possession; the discovery rule shifts the emphasis from the conduct of the possessor to the conduct of the owner

The discovery rule sets forth a test that will consider whether the owner has acted with due diligence in pursuing his or her personal property
 Court remands to have them adjudge using the discovery rule, did O’Keeffe diligently exercise efforts to recover the painting

Demand-and-Refusal approach: the statute is tolled until the owner demands the return of her property from a good faith purchaser

Gifts

Must have donative intent - present intent to make transfer

Must deliver to the donee - constructive(the donor physically transfers to the donee an object that provides access to the gifted item, allowed if manual is impracticable or impossible), symbolic (the donor physically transfers to the donee an object that represents or symbolizes the gifted items), manual/actual(physical)

Delivery: the property must be delivered to the donee, so that the donor parts with dominion and control (Must be actual or constructive delivery)

Donee must accept the property- although acceptance of a valuable item is usually presumed

Each element must be proven by clear and convincing evidence

Law allows an owner to separate her title into different segments based on time; i.e. a person can have the immediate right to possession (present interest) while someone else can have the right to possession at a future date (future interest)
6

 Inter vivos gift - transferred interest given during the donor's lifetime ; Testamentary gift - gift effective after the donor dies…valid only if it satisfies the Statute of
Wills, which requires a writing signed by the donor and witness by two or more people

A promise to make a gift in the future is unenforceable without some form of consideration

Generally, cannot be revoked (inter vivos gift)

Gruen v. Gruen

Son brought suit against his stepmother to acquire a painting that he says his father gave to him (while living), son never had physical possession of the painting

Stepmother says gift was testamentary in nature, and therefore invalid
(since no will)

Issue: Can a valid inter vivos gift of chattel be made where the donor has reserved a life estate in the chattel and the donee has never had physical possession before the life estate ended?

Holding: Yes, if certain elements are met.

Rationale: There has to be intent by the donor to make a present gift or transfer of interest. (Test for donative intent: whether the maker intended the gift to have no effect until after the maker’s death …) As long as the evidence establishes an intent to make a present and irrevocable transfer of title or the right of ownership, there is a present transfer of some interest and the gift is effective immediately.

Albinger v. Harris

Sup. Ct. of MT, 2002

Engagement ring case
 Albinger and Harris had broken up several times, and one time Albinger forcibly removed the engagement ring from Harris, they reconciled and then broke up once more when Albinger told Harris to “take the ring and get out”; Harris has since refused to return the ring

District Ct found for Albinger, Harris appeals to get the ring back

Issue: Who retains legal ownership of the engagement ring when marriage plans are called off?
 Holding: The fiancée (person who was given the ring)

Rationale: The supreme court decided that the gift was complete upon delivery, and a completed gift is not revocable.
 Causa mortis - gifts given in contemplation of death; must have donor's anticipation of imminent death; revocable before the donor's death, automatically revoked if the donor does not die from the anticipated peril


Copyrights, 3 elements required to attain copyright

Originality

Work of authorship

Fixation (sufficiently permanent, for the work to be perceived for more than a transient period)

Death + 70 yrs = person OR Death + 120 yrs = corporate entity
7


Once a copyright expires, the value in the marketplace dwindle

Fair use is a defense to a copyright infringement claim (use that is allowed that does not materially affect the rights of the copyright holder); Elements:

Purpose and character of the use

Nature of the copyrighted work
 Amount used

Effect on the potential market

Copyright infringement, plaintiff must prove

Ownership of a valid copyright; AND

Unauthorized copying of a material amount of the work

Patents - for new inventions (cell lines, machines, & medicines); good for 20 yrs

Patentable subject matter

Utility

Novelty

Nonobviousness
 Enablement (?)

Patent infringement claim, plaintiff must show:

Literal infringement OR

Infringement under the doctrine of equivalents

Trademarks - words, names, designs, symbols which are used to distinguish goods

Distinctiveness

Nonfunctionality

First use in trade

Trade secret - protects any confidential business information; lasts forever as long as kept secret
 Cheney Brothers v. Doris Silk Corp.
 Facts: Doris Corp. produced cheap knockoffs of silks originally produced by Cheney Bros.

Result: Court says there was no remedy available for Plaintiffs under the Copyright Act (as it was written); says could not patent either, because the design is not unique and original

Feist Publications, Inc. v. Rural Telephone Service

US, 1991
 Issue: Can a telephone book have a copyright?

Holding: No.
 Rationale: Rural Telephone Co. did not have originality. Also, phone numbers and addresses constitute facts and cannot be copywritten.

Fair Use defense: characteristics of use, nature of copyright work, amount and substantiality of the portion used, effect on the potential value of the copywritten work

Harper & Row Publishers v. Nation Enterprises

US, 1985

Facts: A publisher had used 300 words out of a presidential memoir that was 200k words long.
 Issue: Is there fair use in taking 300 words from a president's memoir when those words are used as the heart of the work?
 Holding: No.

Rationale: The Court found that the words were the "heart" of the work. Used principles of good faith and fair dealing to find against Nation Enterprises (basically stole manuscript and undermined the market)
3.
8


Three ways to transfer property:

Deed (conveyance/alienation)

Will (devise)

Intestacy (no will, property given to closes living relatives or escheat to the state if none)

6 Freehold estates (last three are "defeasible" estates, ownership can divest or be cut off)

Fee simple absolute

Life estate

Fee tail

Fee simple determinable (FSD)
 Fee simple subject to a condition subsequent

Fee simple subject to an executory limitation

Term of years (leasehold estate)

All can be distinguished based on duration
 Living persons do not have “heirs”, they are called “heirs apparent”

Cole v. Steinlauf

Sup. Ct. of CT, 1957
 Rule: must state “to b AND HIS HEIRS” if you are seeking to give a fee simple estate; unless you have clear intent of wanting to give away the entire bundle of sticks

No longer the rule today, because it is now assumed

Life Estates

The duration of a life estate is measured by the lifetime of a particular person; when that person dies, the estate terminates

Cannot be granted to business entities
 Usually has language like: “to B for life”
 “for life” are words of limitation
 “until B dies” OR “while B is alive” will also work if there is accompanying intent

Holographic will - a will entirely handwritten by the decedent

Fee Tail

Duration determined by the lives of the lineal descendants of a particular person(measuring life)

Almost extinct in the U.S., can only be created in DE, ME, MA, RI

Will be a conveyance to a named person and “the heirs of his body”

Words of purchase = to B, words of limitation = and the heirs of his body

O retains a reversion (property reverts back to O when the lineal descendants end)

Only has a limited right to transfer the estate

Fee Simple Defeasible

A defeasible estate = an estate that may end upon the occurrence of some future event
 Not subject to the doctrine of “waste”

Fee simple determinable (FSD) = a fee simple estate that may continue forever or may end upon the occurrence of some future event

FSD = automatically ends when a certain event or condition occurs, giving the right of possession back to the transferor (grantor)

Characterized by words of duration

Future interest for FSD = possibility of reverter, becomes possessory upon the happening of the stated condition
9


Fee simple subj. to a condition subsequent

A fee simple estate created in a transferee that may be terminated at the election of the transferor when a certain condition or event occurs

Estate will not terminate automatically, the transferor just retains the power to terminate the estate by taking action = a right of entry/power of termination (future interest)
 Future interest is usually executed through a quiet title action

Fee simple subj. to an executory limitation

Defeasible fee simple estate created in a transferee that is followed by a future interest in another transferee
 The future interest is held by a third party (called an executory interest, becomes possessory once the event occurs)

O to B and heirs so long as…then, to C

Mahrenholz

A fee simple determinable can be considered a limited grant

A fee simple subj to a condition subsequent is an absolute grant
 A grantor should give a FSD if he intends to give the property for so long as it is needed for the purposes given

Use a FSS to compel compliance with a condition by penalty of forefeiture

Waste * (need to review)
 An estate owner owes a duty to future interest holders to avoid affirmative waste and permissive waste

Pg. 330-331

Modern future interests

Future interests retained by the transferor(grantor)

Reversion - an interest that remains with the transferor when she conveys a smaller estate than the one she has; i.e. O can give a life estate, fee tail, or term of years to
B, and O would retain a reversion (if O owns in fee simple absolute)

Possibility of reverter - occurs when O conveys a fee simple determinable estate;
O still has a right to possession if the estate terminates
 Right of entry - occurs when O conveys a fee simple subj. to a condition subsequent; the future interest does not become possessory until and unless the holder takes affirmative steps to regain possession; O must re-enter, give formal notice; or bring legal action to terminate B’s estate

Future interests created in a transferee (grantee)

Indefeasibly vested remainder

Vested remainder subject to divestment
 Vested remainder subject to open

Contingent remainder

Executory interest

Remainders - a future interest in a transferee that (1) is capable of becoming possessory immediately upon the expiration of the prior estate; AND (2) does not divest (or cut short) any interest in a prior transferee
10

 A remainder “waits patiently” for the preceding estate expires before it becomes possessory

Follows a life estate OR term of years, natural expiration

Two types of remainders: vested AND contingent; both freely transferable

Questions to ask: Do we know for sure who will take? AND Does something have to happen first? (Unless both Yes, then remainder is contingent!)

Indefeasibly vested remainder - created in an ascertainable person AND it is not subject to a condition precedent other than the natural termination of the prior estate; even if identified, the person must be born at the time of conveyance

Example :
“to A for life, then to B and her heirs”

Vested remainder subj. to divestment - a future interest that is ready to become possessory unless a specified event occurs; i.e. O conveys “to B for life, then to D, but if D does not survive B, then to E”, if D dies before B, D’s interest will be terminated or divested
 Example : “ to A for life, then to B, but if B is not then living, then to C ” READ
EACH INTEREST LEFT TO RIGHT, between the commas.

Vested remainder subj. to open - a vested remainder held by one or more living members of a group or class that may be enlarged in the future; typically when the conveyance involves children; i.e. O to “B for life, then to D’s children” At the time D has two living children, D may have more children b/c she is still alive
 Example : “to A for life, then to A’s children” A has one child, B. The remainder is vested in B, but more children could join the class.

Contingent remainder - a remainder given to an unascertainable person OR subject to a condition precedent

Executory interest - a future interest in a transferee that must divest another estate or interest to become possessory
 If the executory interest cuts off the transferor’s estate, it is called a springing executory interest

Example: “O=> to A, when he marries B”
 If the executory interest cuts off the transferee’s estate, it is a shifting executory interest

Example: “O =>to A, but if A marries, then to B”
 E.I.s are alienable, devisable, and descendible
11

5.

Modern Concurrent Estates
 Tenancy in common - each tenant will have an undivided, fractional interest in the property; may transfer his interest to another person; freely alienable, devisable, and descendible; both have a right to use the entire parcel (even if the interest is smaller) i.e.
O to A and B

Joint tenancy - an undivided right to use and possess the whole property, but each party has a right to survivorship (when one party dies, the other becomes sole owner); not devisable or descendible; i.e. O to A and B as joint tenants with right to survivorship

Only when time, title, interest, and possession are present

Time - all joint tenants must acquire the interest at the same time

Title - must acquire interest by same instrument
 Interest - must have same shares in the estate, equal size and duration

Possession - must have equal right to possess, use, and enjoy the whole property

Tenancy by the entirety - only married couples can hold this kind of concurrent estate; can only be ended by death, divorce or agreement of both spouses; otherwise, similar to joint tenancy

James v. Taylor

COA Arkansas, 1998

There has to be express language to create a joint tenancy; otherwise, we will defer to a tenancy in common

The court finds that there was insufficient evidence to overcome the presumption that a tenancy in common was created
 Preferred language: O to A and B as tenants in common

Partition - divides the property and ends the co-tenancy

Any co-tenant can sue for a partition at any time

2 types of partition: partition in-kind (physical allotment of land) AND partition by sale (proceeds divided amongst co-tenants)

Ark Land Co. v. Harper

Mining/coal company bought out Caudhill heirs who had interests in 75 acres of land in
Virginia, Ark Land acquired 67.5% interest in the land, and sought to attain the last portion of the land, but certain heirs were unwilling to give up their interest, Ark Land brought suit to have the land partitioned and sold

Ark Land argued it would cost millions of dollars to partition in-kind, and would not be feasible to have a house surrounded by coal mines

The Caudhill heirs argued the property held no particular monetary value, but had been in their family’s possession over 100 years and held ancestorial and sentimental value

The trial court found for Ark Land and ordered a partition by sale

Issue: Whether the property could be reasonably portioned in-kind so as to not prejudice the non-moving party, as opposed to a partition by sale?

Holding: Yes.

Rationale: The court reversed and said that economic value should not be the only factor analyzed when deciding for or against a partition by sale. The trial court should have looked at the elements: impracticability, interest of some, no party prejudiced. (pg
393)

The court also says that longstanding ownership along with sentimental or emotional
12

interest should be considered when determining whether the party opposing the sale will be prejudiced by the property’s sale

Today most partitions are done by sale

Iowa favors partition by sale unless partition in-kind is shown as convenient and reasonable

Marital Property

3 kinds of marital property:

Common law

Separate property

Community property

Common law was gender biased, a woman once married lost her ability own, manage, and dispose of her property; men could mortgage or sell the wife’s property (can also be reached by creditors)

Can get a dower if the husband dies - life estate in 1/3 of the freehold land owned by the husband and not inheritable by his issue

Separate property system can be divided into rights during the marriage, at divorce, and at death

During the marriage - property is separately owned by the spouse who acquires it

Divorce - most states require equitable distribution of the property owned by each spouse; the court will consider factors such as incomes, special needs, length of the marriage to come to a just and fair distribution; i.e. house, cars, collection

Death - the survivor will have a choice to take under the decedant’s will OR receive a defined portion of the decedant’s estate usually a 1/3 or ½ share

Community property system

Only used in nine states

During the marriage - all earning and assets acquired during the marriage are owned by the spouses equally

Divorce - all community property is divided between the spouses, will use equitable distribution factors (same as separate property)

Death - the decedent can devise her half of the community property and all her separate property as she desires

Sawada v. Endo

Sup. Ct. of Hawaii, 1977

The Sawadas were injured in a car accident, and filed suit against the Endo
 Issue: Whether the interest of one spouse in real property held in tenancy by the entireties is subject to levy and execution by his or her individual creditors?

Holding: No

Rationale: An estate by the entirety is not subject to the claims of the creditors of one of the spouses during their joint lives

Guy v. Guy

Sup. Ct. of MS, 1999

Couple were married, and decided to file for divorce due to irreconcible differences; the court attempted equitable distribution of the marital assets and awarded $35,000 for a nursing degree acquired during marriage although the husband paid the majority of the expenses required in attaining the degree
 Issue: Whether a professional degree is marital property?

Holding: No.
13


Rationale: Hard to quantify a degree
4.

Conditions of the property

In re Clark

Prompted a restructuring of landlord-tenant law

Generally, a landlord may refuse to rent to any prospective tenant; however, federal and state law prohibits discrimination based on race, religion, sex, familial status.

Fair housing act does not apply to owner-occupied premises, single family homes owned by someone who holds less than 3 properties and did not use a realtor

Four types of nonfreehold estates:

Term of years tenancy

Periodic tenancy
 Tenancy at will

Tenancy at sufferance

Lead to doctrine of implied covenant of quiet enjoyment & implied warranty of habitability

Constructive Eviction - wrongful conduct by the landlord that he would not wrongfully interfere with the tenant’s possession (implied covenant of quiet enjoyment)

Elements: 1) intentional (actual or inferred) acts of the landlord that breach a duty owed to the tenant AND 2) are the cause of substantial interference with the tenant’s enjoyment of the premises, or render it unfit for the purpose for which it was leased
AND 3) the tenant vacates the premises 4) within a reasonable time after the landlord’s actions

Fidelity Mutual Life Ins. V. Kaminsky

COA Texas, 1989
 Kaminsky performed elective abortions, and was consistently protested by the public;
Kaminsky complained to Fidelity about provision of security; Kaminsky eventually abandoned the premises on Dec. 3, 1984 (lease began in May 1983)
 Issue: Whether sufficient evidence supports the jury’s findings that the landlord and appellant constructively evicted the tenant by breaching the express covenant of quiet enjoyment contained in the parties’ lease

Holding: Yes, Kaminsky was constructively evicted

JMB Properties Urban Co. v. Paolucci

App.Ct. of IL, 1992

Jewelry store case (stereo store opened next door and was disruptive)

Paolucci chose to remain and renew a six month lease even though he had made the complaints to the landlord about Barrets stereo store

Court found against Paolucci, says that he waived any constructive eviction right by staying in the leased property for an unreasonable amount of time

Transferring the Tenant’s Interest
 Sublease and Assignment

Sublease = a tenant grants an interest in the leased premises less than his own, or reserves to himself a reversionary interest in the term

Assignment = the tenant conveys the whole term, leaving no interest now reversionary interest in the grantor or assignor

Privity of estate = based on the leasehold relationship

Privity of contract =
14


Ernst v. Conditt

COA TN, 1964

Rogers transferred his interest to Conditt, Conditt stops paying the rent

Issue: Was this conveyance an assignment or sublease?

Holding: It was an assignment

The actual language of the conveyance will not always dictate whether it is sublease or assignment

Rogers never retained a reversionary right to re-enter, had intended to give away his whole interest

Kendall v. Pestana
 Sup. Ct. of CA, 1985

Commercial lease issue

Pestana (an assignment of reversion rights)

Pestana refused to assign a lease on behalf of Bixler, did not provide reasoning

Court adopts minority view, says that the landlord must provide commercial reasonableness in their decision to refuse an assignment or sublease

Ending the Tenancy

Abandonment

Tenant vacates the leased property

Without justification AND
 Without present intention of returning AND

Defaults in the payment of the rent

Sommer v. Kridel

Sup. Ct. of NJ, 1977

Kridel had a lease with Sommer for a 2 year lease, had planned on living in the unit with his fiancée; marriage plans did not come to fruition and wanted to abandon the lease
 Kridel sent letter to Sommer informing him of same to which Sommer did not respond

Sommer did not have a new tenant in the unit until Sept 1973
 Sommer sued Kridel for the balance of the two year lease first; then sued for amount due between the start of the lease to Sept. 1973

Issue: Whether the landlord has a duty to mitigate damages by reletting an apartment that was wrongfully vacated by the tenant?

Holding: Yes.

Rationale: The court followed the trend of requiring the landlord to mitigate his damages. The landlord has the burden of proving reasonable diligence in re-letting the apartment.
 Hillview Assoc. v. Bloomquist

Sup. Ct. of IA, 1989

Trailer park tenants formed a union to address health, safety, and quality of life concerns; there was an Iowa act that prevented retaliatory action by landlords for their mobile home tenants making statements to govt agencies or has organized as part of a tenant’s union; there is a presumption that if within 6 months of the tenant’s conduct the landlord does increase or threaten action that the landlord was
15

retaliating

Trailer park management sues to evict the tenants

Issue: Was the retaliatory eviction proper?

Holding: No.

Rationale: Landlord must provide legitimate nonretaliatory reasons to overcome the presumption. The affirmative defense of retaliatory termination of the lease burden of proof remains with the tenant.

AIMCO Properties v. Dziewisz

Sup. Ct. of NH, 2005

Defendant had a one year lease with AIMCO, and at the end of the one year term
AIMCO did not want to renew the defendant’s lease

The defendant decided not to vacate the apartment and therefore became a tenant at sufferance

According to NH landlord-tenant law, a landlord could only evict for failure to pay rent, or other good cause; had to state with specificity the reason for eviction
 Public policy dictates that a landlord cannot abruptly cut off the relationship (would force the tenant to change school districts, local services, etc.)

Holding: A landlord may not evict just because the lease term is up; the landlord must set forth good cause as outlined in the NH statute

Eviction

A landlord may terminate a periodic tenancy for any reason, other than discrimination

Most states protect against retaliatory eviction

Some states require good cause

Most states require the landlord to evict the tenant by using the judicial process
5.

The Purchase Contract

Essential terms (identity of the parties, the price, and the property description)

Writing (formal contract or informal memorandum)
 Signature (signature of the party to be bound)

All three must be present to satisfy the statute of frauds (there are some exceptions)

Failure to not have any of three will make the purchase contract unenforceable NOT void

Hickey v. Green

App. Ct. of MA, 1982

Ms. Green orally bargained to sell her real property to Hickey; Green received a deposit check for $500 that had certain language on the back of the check; Hickey did not fill out who the check was payable to b/c he did not know if Green or her brother were going to cash the check; Hickey went on to sell his home, thinking that he had secured the purchase with Green; Green sells the house to another buyer for $1000 more than
Hickey’s offer; Hickey sues for specific performance of their purchase agreement

Green argues that SOF was not satisfied

Rule of law: A contract for real estate may be enforceable if the party seeking enforcement in reasonable reliance on the contract and on the continuing assent of the party against whom enforcement is sought, has so changed his position that injustice can be avoided only be specific enforcement
16

 Holding: The court says Ms Green’s action cannot be condoned, remands the case such that specific performance can be accomplished upon a cash payment to Ms Green

3 ways to describe property: government survey, metes and bounds, subdivision map

Exceptions to the Statute of Frauds: past performance, equitable estoppel

Estoppel may be granted if: a) the buyer substantially changes his position in reliance on an oral promise by the seller and b) the buyer will be substantially injured if specific performance is not granted

Marketable Title

Title that can be sold without any severe encumbrances
 Almost all private encumbrances render property unmarketable

Title is unmarketable if:
 The seller’s property interest is less than the one she purports to sell
 The seller’s title is subject to an encumbrance, OR

There is reasonable doubt about either of the above

Lohmeyer v. Bower

Sup. Ct. of KS, 1951

Issue: Whether the property in question is subject to encumbrances or other burdens making the title unmerchantable?

Holding: Yes.

Rationale: Changes in the house compelled the purchaser to take something that he did not contract to buy. The private encumbrance of restricting the home to one story, and the 18-inch lot line made the title unmarketable.

Brush Grocery Kart, Inc. v. Sure Fine Market, Inc.

Sup. Ct. of CO, 2002

Brush had contracted to purchase a leased property from Sure Fine Market; there was a hailstorm and significant damage to the contracted property, however, Sure Fine stated that Brush would be responsible for the damages

Issue: Who will be liable for the damage, is the buyer still required to purchase the property?

Holding: The seller and NO

Rationale: In the absence of a right of possession, a vendee (buyer) of real property that suffers a material casualty loss during the exectuory period of the contract, through no fault of his own, must be permitted to rescind and recover any payments he had already made.

Duty to Disclose

Stambovsky v. Ackley

Sup. Ct. of NY, App. Div., 1991

Haunted house case

Plaintiff discovered that the house he purchased had the reputation of being haunted

Issue: Does caveat emptor apply (given our facts)?

Holding: No.
 Rationale: Where a condition which has been created by the seller materially impairs the value of the contract and is peculiarly within the knowledge of the seller or unlikely to be discovered by a prudent purchaser exercising due care with respect to the subject transaction, nondisclosure becomes a basis for recission of the
17

contract
 Most jurisdictions do not require disclosure of conditions that are “not rooted in the land”

If the information is equally available to both the seller and the buyer, then it is up to the buyer to seek out the conditions

Deed of trust - legal title is transferred to a third party
 Wansley v. First Nat’l Bank of Vicksburg

Sup. Ct. of MS, 1990

Two brothers had 4,200 acres of land, were taking out loans on their farm lands; eventually defaulted on the loans
 The brothers assigned a deed of trust to Wheeless

Bank asks Wheeless to foreclose on the property, and the bank is the only bidder

Wansleys allege that the trustee had a conflict of interest, and that the bank’s sale were unreasonable
 The court found that the bank’s actions were commercially reasonable; the sums offered by the bank were reasonable

Title Assurance

Ways to guarantee against risk

Can be done through title convenants, title opinion based on search of public records, title insurance

3 types of deeds : general warranty (highest amount of protection for buyer), special warranty (minimal assurances, only after the owner obtained title protected), quitclaim
(no assurances given)

Brown v. Luber

Sup. Ct. of IL, 1979

The Browns purchased 80 acres of land thinking that they owned subsurface rights to mining

Issue: Is there a claim for breach of the covenant of seisin and breach of the covenant of quiet enjoyment?

Holding: No/No.

Rationale: Plaintiffs SOL has passed for any type of claim of breach of the covenant of seisin. There was no breach of the covenant of quiet enjoyment because there was no mining conducted (constructive eviction is only accomplished when the subsurface minerals are extracted)

Title opinion based on search of public records

Recording system

Follow the chain of title

Start from the current owner and work backwards
 Recording protects the current owner from losing title to a later buyer

Luthi demonstrates that even if a document is recorded there may not be constructive notice to a searcher

Luthi v. Evans

Sup. Ct. of KS, 1978

Mother Hubbard clause at issue - property interests are conveyed in general terms
(typically all interests within the county) rather than each interest being separately described
18


Luthi originally sued over the Kufahl lease

Issue: Whether or not the recording of an instrument of conveyance which uses a
Mother Hubbard clause to describe the property conveyed, constitutes constructive notice to a subsequent purchaser

Holding: No.
 Rationale: The court first looked to Kansas statutes regarding conveyances.

Selling Real Property: Recording Acts (pg. 610)

States can have three types of jurisdiction: race, notice, race-notice
 Most states begin with the principle of “first-in-time”, the person whose interest was created first prevails

The bona fide purchaser doctrine is an exception which is protected by the recording acts (supersedes first in time rule)

Bona fide purchaser - purchased in good faith AND for value

A bfp is one who takes conveyance of real estate in good faith from the holder of legal title, paying a valuable consideration for it without notice of outstanding equities
 Race jurisdiction: the purchaser who records first has priority

Notice: the subsequent bona fide purchaser has priority; purchaser is motivated to record quickly

Race-notice: the subsequent bona fide purchaser who records first has priority

A deed must be properly acknowledged to be recorded; Messersmith says that if the recording of an instrument is not properly done according to statute, there is no constructive notice

Recording Acts - What constitutes notice?

Actual notice: knowledge of a prior interest

Record notice: notice of any prior interest that would be discovered by a standard search of the public land records

Inquiry notice: notice of any prior interest that would have been obtained by investigating suspicious circumstances

Record and inquiry both are constructive notice - the BFP is deemed to know the information that she could have learned by examining the land records or appropriate investigation
6.

Easements

Land cannot be used unless the owner has adequate access to it, which may require an easement across land owned by another

A nonpossessory right to use the land of another person

5 types: express, implied easement by prior existing use, easement by necessity, prescriptive easement, easement by estoppels (or irrevocable license)

Dominant tenement/land = land benefited by the easement
 Servient tenement/land = land burdened by the easement

Dominant owner = easement holder

Servient owner = owner of the burdened land

Appurtenant easement = benefits the holder in her use of a specific parcel of land; most easements are APPURTENANT
 Easement in gross = not connected to the holder’s use of any particular land; but is
19

personal to the owner

Affirmative easement = allows the holder to perform an act on the servient land; most easements are AFFIRMATIVE

Negative easement = allows the holder to prevent the servient owner from performing an act on the burdened land
 Most common is the express easement; must be confirmed in writing to align with statute of frauds (identify the parties, describe the servient/dominant lands, describe the exact location of the easement on the servient land, and the purpose of the easement)

By grant - servient owner grants easement to dominant owner

By reservation - dominant owner grants the servient land to the servient owner but retains or reserves an easement over that property

Millbrook Hunt, Inc. v. Smith

Sup. Ct. of NY, App. Div., 1998

Fox hunting case

Involved an easement in gross; the easement was personal to the hunting club and had nothing to do with its ownership of the specific land

3 requirements for an implied easement
 Severance of title to land in common ownership

An existing, apparent, and continuous use of one parcel for the benefit of another at the time of severance

Reasonable necessity for that use

Easement by necessity elements:

There was a division of commonly owned land, AND

The division resulted in creating a landlocked parcel

An easement by necessity will justified if there is 1) implied intent of the parties AND 2) the public policy favoring the productive use of land

Will NOT arise if this would contradict the actual intent of the parties

Strict necessity of the easement is found only when the owner has no legal right of access to her land

Generally will only apply to road access to a landlocked parcel

Berge v. State of Vermont

Sup. Ct. of VT, 2006

Plaintiff was restricted from accessing his land with the installation of a gated fence on this wildlife preserve

Ruling: there is no doubt that without use of the road across State land, plaintiff would have no reasonably consistent, practical means of reaching his property; would be subject to boating to his property subject to weather and water conditions
 The court also considered the social policy of encouraging land use

Must have practical access to a public road (crux of easement by necessity)

MacDonald Properties v. Bel-Air Country Club

Issue: was there a prescriptive easement given?
 Holding: yes

Rationale: Continuous use of an easement over a long period of time without the landowner’s interference is presumptive evidence of its existence. The deed was evidence of the parties’ actual intent that Bel-Air should continue to use the subject property as rough in the same fashion that it had when it owned the property in fee
20

simple.

A prescriptive easement in property may be acquired by open, notorious, continuous, adverse use, under claim of right, for a period of 5 years and the owner of the servient property must have actual knowledge of its use.
 Don’t actually have title to the property with a prescriptive easement
 Prescriptive easement must be open and notorious; adverse and hostile; continous; all for the statutory period…does not acquire title in land, just use

Easement by estoppels = irrevocable license
 an oral agreement to create an easement is unenforceable b/c of statute of frauds
 unjust to allow a landowner to revoke his permission after the user has relied on it in good faith

Elements: 1) a landowner allows another to use his land; thus creating a license 2) the licensee relies in good faith on the license, usually by making physical improvement or by incurring significant costs; AND 3) the licensor knows or reasonably should expect such reliance will occur


Marcus Cable Assoc. v. Krohn

Sup. Ct. of TX, 2002

Issue: Does the easement in question permit Marcus Cable to install cable television lines?

Holding: No.

Facts: the original easement was granted to an electric coop and was expressly given for constructing and maintaining “an electric transmission or distribution line or system”; was originally given in 1939

Marcus Cable argues public policy would require adjustment of the easement to allow for technological advances

When the cooperative assigned its rights to Marcus Cable, it said that Marcus would be responsible for obtaining its own easements and rights-of-way
 Rationale: When the grant’s terms are not specifically defined, they should be given their plain, ordinary, and generally accepted meaning…thus if a particular purpose is not provided for in the grant, use pursuing that purpose is not allowed.
Common law does allow for flexibility and takes in account the manner, frequency, and intensity of an easement that may change over time. Must look to what the purpose the contracting parties intended the easement to serve.


Preseault v. United States

U.S. COA, Fed. Cir., 1996

State of Vermont had originally had an easement given by the Presault predecessors, for the use of railroad tracks

In 1970 the railway company ceased operations, and 1975 all the railroad tracks were removed

Issue: Did the railroad acquire fee simple estates or easements? Were the easements broad enough to encompass recreational trails?

Holding: Easements, No.

Rationale: Simple non-use of an easement holder will not constitute abandonment. In addition to non use…The acts by the owner of the dominant
21

tenement conclusively and unequiovocally manifesting either (1) a present intent to relinquish the easement OR (2) a purpose inconsistent with its future existence.

Negative Easements

An easement that entitles the dominant owner to prevent the servient owner from performing an act on the servient land

Land Use Restrictions

Real Covenants

A promise concerning the use of land that benefits and burdens both the original parties to the promise and their successors
 Remedy for breach is monetary damages

Burden = the duty to perform the promise

Benefit = the right to enforce the promise
 Six elements (four required) to bind the promisor’s successors:

Compliance with the SOF

Intent to bind successors
 “Touch and concern” (covenant must relate to the enjoyment, occupation, or use of the

 property)
Notice (actual, record, or inquiry)
Horizontal privity (relationship b/w the original parties to the promise)

Vertical privity (concerns the relationship b/w an original party to the promise and his successor) exists only if the successor receives the entire estate that the original party had

Equitable Servitudes

A promise concerning the use of land that benefits and burdens both the original parties to the promise and their successors; remedy for breach is an injunction

Common Interest Communities

Nahrstedt v. Lakeside Village Condominium Assoc. Inc.

Sup. Ct. of CA, 1994

TEST: A servitude(covenant) violates public policy if it is (1) arbitrary, spiteful or capricious; (2) unreasonably burdens a fundamental constitutional right; (3) imposes an unreasonable restraint on alienation; (4) imposes an unreasonable restraint on trade or competition; OR (5) is unconscionable
7.

Zoning

Village of Euclid v. Ambler Realty Co.

U.S., 1926
 suburb of Cleveland, Ambler owned 68 acres of land in Euclid, and Euclid wanted to zone the land a certain way, contrary to what Ambler wanted to do with the land
 Issue: Is the ordinance invalid, in that it violates the constitutional protection to the right of property?

Holding:
 Rationale: Court will use the RB test in zoning ordinance cases (a law is unconstitutional only if it is clearly arbitrary and unreasonable, having no substantial relation to the public health, safety, morals, or general welfare).

Nonconforming Uses

Can only be terminated if:
22


The structure was destroyed

The use was abandoned or discontinued

The use was a nuisance

The municipality acquired the property through eminent domain, paying fair market value

Amortization (City of St. Louis Park)

AVR, Inc. v. City of St. Louis Park

COA of Minnesota, 1998
 The city wanted to get rid of an older concrete ready mix plant; created a new city ordinance that would get rid of the plants to be used for residential areas
 The city instituted an “amortization period” (2 years) upon expiration each nonconforming use is to be deemed void or in violation of the ordinance
23