Property Outline Long
I. METHODS OF ACQUIRING PROPERTY RIGHTS ........................................................ 1
A. Capture ................................................................................................................................. 1
B. Finders, Keepers? ............................................................................................................. 5
C. Adverse Possession .......................................................................................................... 8
D.
Acquisition by Gift ......................................................................................................... 13
II. ESTATES IN LAND AND FUTURE INTERESTS ....................................................... 15
A. Possessory Estates ........................................................................................................ 15
B. Future Interests ............................................................................................................. 21
C. Co-ownership .................................................................................................................. 39
III. LANDLORD-TENANT LAW ......................................................................................... 45
IV.
NUISANCE ........................................................................................................................ 56
V.
PRIVATE LAND USE RESTRICTIONS3 ...................................................................... 61
A. Easements ........................................................................................................................ 64
1.
2.
3.
Methods of Creation ............................................................................................................... 64
Transfer, Scope, and Effect ................................................................................................... 76
Termination ............................................................................................................................. 81
B. Covenants and Servitudes .......................................................................................... 83
1.
2.
VI.
Creation and Effect.................................................................................................................. 84
Termination ............................................................................................................................ 102
PUBLIC LAND USE RESTRICTIONS ........................................................................ 105
A. Eminent Domain .......................................................................................................... 105
B. Police Power Regulation ........................................................................................... 107
C. Physical and Regulatory Takings ........................................................................... 107
1.
2.
3.
4.
5.
Inverse Condemnation Remedies ................................................................................... 108
Physical Takings by Regulation ....................................................................................... 109
Takings Based on Economic Impact ............................................................................... 109
Exactions .................................................................................................................................. 116
Summary .................................................................................................................................. 118
I.
METHODS OF ACQUIRING PROPERTY RIGHTS
A. Capture
1
Possible causes of action
Trespass
Act by D (misfeasance)
Which resulted in a direct forcible injury
To P’s person or to property in P’s
possession
Trespass on the Case
Act (misfeasance) or failure to act
(nonfeasance: provided D had a duty to act)
by D
Which resulted in injury (not necessarily
direct or forcible)
To property of P (inc. not in possession of P)
or to some non-property interest of P
Modern trespass on the case: Negligence, nuisance
Pierson v. Post
 Facts:
o On neither of their land
o Post: in pursuit of fox, injured it, with dogs
o Pierson: saw Post was in pursuit, snatched and took away fox
o Post: filed complaint (trespass on the case): that he had right to fox
 Issue: did Post get property right by pursuing fox and injuring it?
 Rule
o General rule on acquisition
 1. Intent to posses
 2. Actual control
o Don’t need actual killing to acquire possession
 Pursuing doesn’t give right
o Requirement: killing the animal, or putting it in situation where fox could no
longer escape gives property right.
 Actual bodily seizure not indispensible:
 mortal wounding by one not abandoning his pursuit may give
possession
 3 requirements: Tompkins Test
o 1. Unequivocal intention of appropriating the animal
to his individual use
o 2. Deprive animal of natural liberty
o 3. Brought in your certain control
o rationale: in public policy (prospective view: want dead foxes)
 Ruling for Pierson rationale
 Promote certainty + piece and order in society (first in time
first in right: first to actually capture)
o Easy to determine
o Deprive of liberty and acquisition of certain control
(basically kill or trap it)
o Clear rule=easy for ppl and judges to comply
 Otherwise might be fights about it (litigation
and in person)
 But assumes hunters will know rule
 Want Foxes Dead
2


o Adopt rule that ppl kill foxes
 Dissent: ppl wont fox hunt bc less guaranteed
to get fox after pursuing
 But this is assumption: that ppl fox
hunt to get foxes
 Others will kill no matter what if rule this way
 And improve hunting techniques
Dissent (retrospective view: want to help activity)
o 1. this should be settled by panel of fox hunters: use the tradition/knowledge
o 2. Proposed rule: get property when pursuer in reach and reasonable
prospect of taking (closing in) (retrospective view: reward pre work)
 hard to determine reasonableness
 uncertain: therefore not affective public policy: but say nice to be
flexible
 but: rewards the act of fox hunting
alternative: Post could have made trespass on a case. Maybe this was interference
with some non-property interest (actually brought as trespass on the case, but court
basically viewed as trespass to reach policy outcome)
Popov v. Hayashi (barry bonds ball case)
 facts:
o ball hit into stand. Caught by Popov, but then tackled
o Hayashi spotted ball, picked it up and walked out
 Issue: who’s ball?
 Apply Pierson v. Post: apply Pierson three parts to Popov catch
o 1. Intention: went to game partially to get ball: tracked it
o 2. Deprive natural liberty: caught ball, changed direction
o 3. Certain control: had control of it temporarily at least
 Tayashi: say not certain control: so up for grabs
o Didn’t establish possession: but bc of wrongful act of crowd
 Traiditon of baseball crowd
 But public policy: shouldn’t allow this type of action
 Rule: significant but incomplete steps to get abandoned property can result in
pre-possessory interest when incomplete bc of unlawful acts of others
 App
o Popov: has pre-possession interest
o Hayashi: wasn’t wrongdoer: did maintain certain control: full possession
(although not of fully abandoned property)
 Result: conversion claim can only be sustained to value of Popov’s interest:
o Sell the ball and split proceeds: doctrine of equitable division
Most common application: drilling for oil: whoever gets it first: bc moves between ppl’s land
 But inefficient: bc if pump slower, can get more resources
Keeble v. Hickerbingbill
 Facts
o Keeble (P) had commercial duck pond: lured wild ducks onto his property
o D shot gun over pond to interfere: hindrance
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 Did it maliciously: interference with trade
 Issue: damages to landowner when maliciously uses physical means to scare chattels
of landowners land, when person knows it results in decreased livelihood
Distinction between Keeble and Pierson
Pierson
Keeble
Neither’s land
P’s Land
Animal Dead Either Way
No Production (Duck flies away)
Recreational
Livelihood (maybe law protects livelihood
more) (don’t want to make ppl indigent)
 App: D interfered with P’s lawful and beneficial practice
 Rule: where there is a disturbance, lawful action against the disturber
o And land owner gets constructive possession
 Policy
o Want dead ducks: shouldn’t support the one who making less productive
o Might be different if D had competing duck farm, trying to get duck
o But here; kind of consistent with Pierson dissent: reward engaging socially
benefit activity.
Post lawyer: should have argued trespass on the case and non-possessory interest was the
hunt
 Then wouldn’t have been the same possession issue of the fox: better policy
arguments
Possession:
 Occupancy/possession was good for reaching policy goal: create certainty and peace
in society
o Manipulating concept of possession to reach this goal
Protect Exclusive Right to property
 Policy
o 1. People willing to invest in property they are secure in
o 2. The more likely they are to make productive investments
o 3. Provides stability and security that encourages those productive
investments
 want to encourage people to engage in productive activity
o so provide means of protection for ppl so engaged
o not as concerned for recreational activity (compare Pierson with Keeble
interest)
Constructive Possession
 protects the constructive ownership of the land owner (Keeble)
o trespassing distracts from stability and certainty that people own property
o trespass likely to lead to altercations
o desire to provide peace and stability in society
 so recognizing constructive possession: helps avoid these things:
 if have constructive Possession: that means constant possession: ppl wont come in to
try to grab it if it’s on your land, prevent trespass
Problem 2 on page 33
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


facts: P keeps herd of deer, return to P's land at night. D shoots deer on public land.
Result?
o For P: domestic animals: deprived of will to run wild: in his control: meets
three elements of Pierson at this point
Policy argument: want to reward labor
o Effort worthy of society’s protection: P doing something society likes, protect
it
o But D also hunting: just unlucky: didn’t know it wasn’t wild deer
Problem 3 on page 35
 Facts: P imported silver foxes from Canada, no natural return, so puts them in cage:
but still escape. D kills and skins one 15 miles away
 App: D would know not local, so taking someone else’s property, on notice;
shouldn’t win
o Some effort by hunter should be made to find out who it is
B. Finders, Keepers?
Armory v. Delamarie
 Facts
o P is chimney sweep: found a jewel. Took it to D’s shop to find out what it
was, apprentice took stones out and refused to give it back. P sued for
conversion
 Issues
o 1. Does P have right to bring suit
o 2. Can P bring suit against this D
 yes: agency rule
o 3. If yes to above: what is measure of damages
 best quality value: bc D’s fault it’s lost. (rebuttable presumption): up
to D to say it’s worth less
 Or make D produce jewel
 Issue 1
o D converted chattel owned/possessed by P
o D: used Third party defense: there may be a 3rd party with better rights than
D, but it’s not the P
 But bad for policy: reject this D
 Encourage people to start snatching things that are possessed
but not owned by another
 Preservation of peace denigrated (increase altercation)
 Sometimes true owner can’t prove it: get a new true owner
opposed to snatching it around
o Holding: P has ownership rights above everyone but the true owner
 Policy
 1. Don’t want ppl to do whatever if P not true owner
 protect peaceable possessor except against true owner
 reward finder: reintroducing stuff to society: easier for true
owner to find
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Winkfield
 facts
o letter writers give to postmaster general (PMG)
o PMG: hires boat to ship
o The Winkfield, smashes into that boat: loses letters
o PMG: sues Winkfield
o Winkfiel: Third party defense: not your mail, so not liable to you
 Holding: postmaster wins: rule: Bailee can sue for property of bailer
o Postmaster is Bailee: allow bailiee’s to sue on owner’s behalf
 Makes ppl secure in trusting bailee: might not want to sue on their
own (not worth it): so promote societal interest in that relationship
 Bailment: rightful possession of someone else’s property temporarily
Hierarchy of property rights:
1. True owner
2. Possessor
3. Other possessors: less proper?
Trying to protect
1. peacable possession
2. true ownership: stronger claim to property than possession
3. don’t want to penalize twice for wrongful action
hypo
 facts: P is finder, D took it from finder. P sued D, got value: but then true owner sues D
as well
 D gets caught twice
 Subrogation claim: true owner sues D. so D gets suit against the P:
o Explanation: when P found jewel, True Owner (TO) had right to sue P
 D subrogated true owner of right to sue P: so takes the place of P
when TO sues him
 D then has to sue P: to get his money back
 Imposes risk on D: the wrongdoer: risk P disappearing with the
money or the jewel
 Winkfield Style: true owner has to go find P to sue
o Relies on bailee/bailor relationship:
 D (wrongdoer) having once paid full damages to bailee, doesn’t have
to pay again to bailor (TO)
o Imposes risk on true owner
 But protects D from paying twice for single act
Bailment Relationship: Bailor (owner) hands over possession to bailee (thing holder)
 Voluntary bailment relationship: owner selects bailee
o Like post-master case:
o Makes sense to inflict risk on true owner: they got to choose bailee
 Finders case: finder is bailee for true owner, but not picked
o No prior connection: unfair to put risk on bailor
o This is armory case
o And no issue unless true owner shows up: but less likely in this scenario
 Thief v. thief
o Protect first thief from second thief: bc don’t encourage more thievery
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Hannah v. Peel
 Facts: Hannah (soldier) staying in Peel’s house (but Peel didn’t posses the house, had
just bought it). Hannah found broach in the house. Gave the broach to the police.
Police gave it to Peel, who sold it. Hannah suing peel for value. Peel D: found on his
property: he has better right to it.
 Rule: The finder of lost property has superior title against the owner of the land
on which it was found
o RE: man possessess everything attached or under his land, not on the surface.
o RA: no doubt brooch was lost property, Peel had neither prior possession or
possession of the premise when it was found
 Finder v. locus owner
 finder: Armory: he has better right than everyone but true
owner
 locus owner: when you buy property: get everything on it
o get constructive possession
o intent to exclude ppl from private home: protect that
(different if a public shop): but not here: bc Peel
didn’t have house in possession
o don’t want to incentivize trespass
 Exp: adopt rule that encourages finders to be honest and report finds. Help TO find
their shit
 Conflict: between honoring expectation of D: owner of Locus, and rewarding honest
finder
o 3 determining factors
 encourage productive land use
 Bridge Case: owners intent to exclude (public v. private place)
 Bc peel never on property, more like shop owner case. So no
control of who comes through, not as exclusive of ownership
on your shit.
 control of the property at the time: de facto control question: better
claim for private owner: or if underground, etc
o don’t want to incentivize trespass: if Hannah was a trespasser, change the
result. But bc Hannah there legitimately, then reward the honest finder
Bridges v. Hawkeswroth
 Facts
o Bridges (P finder) found notes on floor in Hawesworth (D, store owner) shop.
P left with D, said return to TO if can. D keeps. P suing
 Rule: finder is entitled above everyone but true owner
o Shop owner doesn’t create exception
o Might be different if it was embedded in the land
 Different if home owner?
o Maybe, but not for Peel: bc he had never taken possesssion
McAboy v. Medina
 P in D’s barbershop. Finds pocketbook. Asks D to return it after advertising. D refuses
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



to return it
o Finder v. locus owner
Court: finds for D: although finder prevails against everyone except the true owner
for lost property, mislaid property should go to the locus owner (distinguish from
bridges)
Bad Explanation: Owner has constructive possession of mislaid property. Although
finder gets possession, constructive possessor had possession first, so he has better
right
o Flaw: that’s the same as Bridges
Real distinction: lost v. mislaid property
o Award lost property to the finder: where found in common area
o Award mislaid property to the owner: where forgotten
o Not all jurisdictions do this
Exp:
o In Bridges: property on the floor: in a common area: that’s lost property.
Normal Armory rule applies
o This was on table: deliberately put there: Mislaid property: the TO will
probably know where he left it
 So awarding it to constructive possessor will help the TO retrace steps
and get it
Stafford Case
 Hired help finds. Award to boss: on his property. Constructive possession. Finder
already rewarded (in pay) for work, don’t need to protect.
4 goals in these cases (From MacAby v. Medina)
1. Protecting the interests of the prior, peacable possessor
2. Protecting the interests of the true owner
3. Honoring the legitimate expectations of all relevant parties (including finders and locus
owners)
4. Rewarding honest, especially in finders
C. Adverse Possession
Holding on to property until SoL runs: SoL doesn’t start until owner knew/should have
known about adverse possessor. Mere possession becomes true ownership as a result of the
expiration of the SoL
Requirements
1. actual possession: actually had control over it
a. exp: earning theory: if not actually possessing, not using land more
productively
b. if not there: SoL hasn’t started
2. open and notorious possession: there a lot of the time
a. sleeping theory: more continuous the easier it is for true owner to find out
b. unfair to true owner if person is hiding on your land
3. continuous possession: stayed there continuously
a. earning theory: more continuous the more useful you’re making land
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b. sleeping theory: more continuous the easier for TO to find out
4. exclusive possession: you are the only trespasser: and excluding the owner
a. if TO and adverse possessor there at the same time, then TO consented to
adverse possessor: therefore not a trespass—SoL hasn’t started if not
trespassing
i. so SoL can’t run to make a claim
5. Adverse/hostile possession:
a. Adverse: possession under claim or right/title
b. Hostile: against the owners claim
Policy
 Earning Theory: economic efficiency/porudcitivty: nobody is using it if can adverse
possess, so using it more productively: reward land productivity use
 Uncertainty: after a period of time, hard to tell who owner is: put an end to dispute
o Only leave dispute until SoL runs
o Bad for economy if don’t know TO
 Sleeping theory: punish sleeping owner. But not the one that’s looking out for his shit
Discovery Rule: SoL doesn’t start until TO actually or should have known his property
possessed and WHO possessed it
Van Valenburgh v. Lutz
 Facts: Lutz (adverse possessor) had been using road on land for 28 years. Van bought
the land, put up a fence across traveled way so Lutz couldn’t use. Lutz brought suit
saying right to use was being interfered with.
 Issue: was there adverse possession requirements?
 NY rule: requirements
o Actual occupation; continued occupation; under claim of title; exclusive
 Holding: no
o Time was fine: past SoL for time used
o Actual possession: NY rule: for actual possession (requirement): required
land be (1) protected by a substantial enclosure or (2) usually cultivated or
improved
 Missing this: so no adverse possession
 Did some gardening, but there was junk yard, no fence, no
actual possession requirement
o Dissent: wording is “usually cultivated”: P did truck farming, this is good
enough
 If reasonable owner wouldn’t devote each inch to crop growth,
adverse possessor doesn’t have to
 Piece 2: garage poking over
o Fact: Garage built across land line too: do they get this land?
o No
 Garage just poling over: not cliam of title because accidental
 Hostile/Adverse requirement: Must know trespassing on someone
else’s land and intend to take title (claim of title requirement of NY
law)
 Piece 3: shack: known not on their land
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o Court: if you occupy land you know you don’t own, don’t have a claim of
title
 Court has gone both ways: essentially eliminated adverse possession in NY
o If you think you’re on own land: no hostility—so cant be claiming title
o If you know you’re not on own land: no claim of title
 This is Minority view
Adverse/Hostile Requirement
 3 separate views on how to meet
o Meritorious approach (Georgia) (mistaken belief): one must enter upon
land claiming to do in good faith, thinking it’s yours
 Supported by earning theory, want to support productive use: doesn’t
matter about sleeping
o Aggressive Trespass (literal interpretation): go on someone’s land to divest
them of title and steal land for self
 Literal interpretation of hostile: not earning/sleeping explanation
o Majority Approach: There without true owner’s consent
 State of mind is irrelevant.
 If there was consent=no hostility (SoL doesn’t start bc not
trespassing)
 Rebuttable: could say there by some other right:
lease/easement/consent
Does SoL start again when new owner?
 Lutz majority: the owners (van) couldn’t have claim earlier bc they weren’t the owners,
so must start SoL again
 Dissent: look at evidence of use
Color of title: claim of title based on document that is defective or invalid
 Some jurisdictions: in order to get adverse possession: need to enter under claim of title
o Explanation: meritorious approach
 Don’t reward trespassers
 Reward meritorious people: have paper saying it’s theres: just not
valid
o NY rule: didn’t require color of title: but helps: “claim of right means a
reasonable basis for the belief that the property belongs to the adverse
possessor or property owner, as the can may be: about good faith. So color of
title would help
o Some states: relax other requirements with color of title
o Some states: SoL shorter if color of title
Howard v. Kunto
 Facts: 3 lots owned: the possessors of the houses were actually one off from their
deeds. Howard had deed occupied by Moyer, Moyer had deed occupied by Kunto
(who knows who had howard’s deed). Howard and Moyer switched, giving Moyer
correct deed and Howard deed to Kunto’s house. Howard brought suit against Kunto
to assert his ownership
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o Kunto had only moved in a year ago
 Issues
o 1. Was tacking of possession by subsequent occupants permitted if the land is
occupied under a mistake of fact?
o 2. Can you win in adverse possession if use was limited to summer
occupancy? (trial court said no)
 Rule
o 1. Yes: allowed tacking provided there was Privity between occupants
 needed to tack the 1 year they were there with previous owners time
to pass SoL (if prev. owners there enough time, they would have
gotten it by adverse possession, thus making transfer full)
 aggregate: exceeded 10 year SoL: so win
 Tacking:
o mere succession not enough (one person trespassing,
then another person trespassing)
o tacking is allowed when mistake a boundary: grab
an extra foot (like if garage pokes over)
 boundry mistake allows tacking: bc same use
o Here: more like boundary mistake
 Rule: if have Privity: tacking is allowed
 def: reasonable connection between successive
occupants of real property
 they all believed they had title: color of title:
benefitting adverse possessors
 also: Kuntos good faith actors,
Howards knew what was up, trying to
grab land
o 2. Yes: summer possession was common usage of land in the area: so it
counts
 test: if possessors there as long as and in the same manner as normal
owner similarly situated: counts as continuous
Presumption of Consent: when true owner and adverse possessor both on disputed land
 only arises when on different parts of same land in dispute
o some jurisdictions: treat the same as if on same tract in one part: so no
exclusivity, won’t give rise
o some jurisdictions: treat like perscriptive easement: trespasser may acquire
right of use for limited purpose
 so exclusivity in adverse possession won’t arise
o on large tract: if on one part: could be considered exclusive possession
 could call it presumptive consent
 usually just give rise to prerscriptive easement
o could also imagine: court would divide and sever land.
Tacking Problems: assume 10 year SoL
1. facts: A enters onto blackakre ownen by O: 9 years later, B kicks A out through threat
a. rule: tacking only allowed with Privity
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b. so no tacking: O can kick A or B out as long as SoL didn’t run
c. English courts: permit tacking in this way: encourages dispossession
i. Only focuses on neglect of true owner. So B could wil over O
ii. But discourages peace and order. Whoever gets it gets it
iii. But maybe A could suit against B: prior possessor better than
wrongful (armory)
d. American View: tacking issue here
e. If A’s time is split between six months of B possessing: A doesn’t get B’s
time but can stick together time split: American law middle view
i. England: A would get it as soon as hits 10 years from his original
possession
2. Facts: A enters O’s land in 1994. In 2005, O gives land to B with reversion to C. in
2010, who owns?
a. A owns:
b. Rule: no subsequent conveyance of property by true owner can affect adverse
possessor’s rights
3. Facts: O, dies in 1995 leaving life estate to B and remainder in C. in 1996, A adversely
posses. In 2010: B dies.
a. C owns
b. A was trespassing on B’s life estate. In 2005: A successfully took B’s life
estate. But when B dies, that right gone, C owns. So in 2010, A has only
adversely possessed C’s estate for 5 years, C still owns
c. Difference from problem 2: adverse possession began after the will. In 2006
A adversely possessed B’s life estate. A took B’s life estate, but doesn’t
adversely posses C’s reversion.
Disability: often disability statutes. Extend SoL if disability.
 Ex. if SoL runs for the 21 years, if person trying to bring trespass case (fighting the
adverse possession), can get extra 10 years after disability is removed. Disability
examples: unsound mind, imprisoned, minor
 Disability doesn’t matter unless it existed at time when CoA accrued (CoA
(trespass) accrues when it begins): think about as if owner is insane/minor/jailed
when trespass began
 Hypotheticals: Facts: O is owner in 1984, A adversely enters in 1984. Age of majority
is 18
o 1. O is insane in 1984. O dies insane and intestate in 2007
 A. O’s heir, H, is under no disability in 2007
 Then H owns (can bring action) until 2017, after that time A
owns
 B. O’s heir, H, is six years old in 2007
 Same as above. H’s disability doesn’t matter, just the owner
 H wasn’t one who could bring action. O is. H just standing in
his shoes
o 2. O has no disability in 1984. O dies intestate in 2002. O’s heir, H, is two
years old in 2002.
 A owns after 21 year SoL. No extension bc O didn’t have disability.
o 3. O is 5 years old in 1984. In 1994, O becomes insane, and dies intestate in
2009. O’d heir, H, is under no disability.
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
When does adverse possessor acquire title?
 2007. Because O turned 18 in 1997. Gets 10 years from there
to bring action, even though SoL would have run in 2005. So
A gets title in 2007. Disabilities don’t tack
 so in this case: if the disability isn’t cured (or the person dies, curing the disability) for
50 years, you get an extra 10 years
D. Acquisition by Gift
Elements
1. intentional
a. oral testimony
b. or delivery with intent to transfer
c. for irrevocable present interest
2. delivery
a. maybe nor manageable bc of size: so symbolic can work
b. traditional: if can be handed over, must do it
c. modern: less strict: steps taken by donor to effect transfer deemed by donor as
sufficient to pass (thought it would pass)
d. cali+others: symbolic in writing always fine
3. acceptance
a. presumed unless expressly refused
Problems
1. O leaves her ring at A’s place while visiting.
a. A telephones O, says you left your ring. O says keep it as a gift
i. Seems gift is good. Only issue is delivery didn’t happen concurrently,
but courts wont worry if delivery before intent. Because stupid
process
b. A gives the ring back to O at dinner, O says you keep it, gives it back.
Doesn’t fit so O says I’ll keep it till we can size it. O leaves with it and gets
hit by a car.
i. Gift is good again. Had all three elements, then O just held on to it
(she is bailiee)
c. At dinner above: O says I promise to leave it to you. Probably not good, bc
it’s a promise to will. Needs consideration or will requirements
i. Traditional rule: gift promises are unenforceable for lack of
consideration
2. O writes A a check. Before A cashes check, O dies.
a. Some courts: Not a valid gift: could have cancelled the check well alive. No
delivery of the money, just delivery of a piece of paper.
b. Some courts: attempted transfer of money: process of doing check promotes
the functions of delivery requirement: so enforce
i. Unless revocation actually made
c. Majority: death revokes effectiveness of check
3. O is wearing watch. Hands A a paper: saying I give you this wrist watch.
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a. Traditional: if practicable to hand over object, must do it.
b. Majority: when actual delivery not difficult/impossible, symbolic delivery not
good
c. Cali: would be fine
4. O and A share safety deposit box. O handed A four bonds, saying I want to give them
to you. A puts them in the box. O adds more stuff to box, and leaves note saying it’s
all a gift to A when O dies.
a. A only gets the original bonds
b. The rest was not gift, no delivery. And note doesn’t come into affect after O
dies, not valid will
i. Plus he could have taken stuff back. No delivery
Newman v. Bost
 Facts: Bost is dying, gives key to Newman. Told her to take them and keep them and
have everything in the house. One of the keys unlocked drawer with insurance policy.
 Rule: gift causa mortis: made in contemplation and expectation of immediate death:
requirements
o 1. An intention to make a gift
 clear donor knew what he was doing and he intended to make gift
o 2. Actual delivery of the gift
 required when articles are present and capable of manual delivery
 constructive delivery: only good when things not present or
incapable of manual delivery
 symbolic delivery: usually written document describing: doesn’t fit
here
 holding: policies in the drawer were deliverable, so not good gift. The furniture and
other stuff the keys opened were gift, bc not capable of being moved
 so constructive delivery was good for stuff not movable that key
opened. Insurance policies were movable, so not good gift
 key was constructive: so gets stuff key unlocks
 things key didn’t open, she doesn’t get
o she also got other furniture put into her room earlier: there was gift inter
vivos
 fulfilled all requirements
 Policy: courts don’t like gift causa mortis: bc undercut wills and policies that surround
them (preventing fraud). And not in best state of mind. So narrow the gift causa
mortis
Gruen v. Gruen
 Facts: father wrote P a letter saying giving painting to his son for his birthday. But
father wanted to retain possession o fit for his lifetime. Two other letters exist
declaring intent. Son never took possession, but sought after death.
 Issue: is this valid inter vivos gift?
 Rule: inter vivos gift requires intent, delivery, and acceptance. The letters count as
constructive delivery. Can also maintain life estate in the gift, and delivery would
frustrate that purpose, so allow constructive delivery.
o Transfer
 If was only transferring ownership at death: then would need will. But
14
was a clear present transfer
Test: whether the giver intended the gift to have no effect until after
the giver’s death, or whether he intended to transfer a present interest
 Transfer was irrevocable once made: giver turned to life estate
holder
o Delivery: physical or constructive or symbolic delivery sufficient to divest
donor of dominion and control of property
 Avoid mistakes/fraudulent claims.
 Use what circumstances would reasonably permit. Intended to retain
interest, stupid to give and give back.
o Acceptance: presumed
 Policy: it’s stupid to require symbolic handing back and forth when such clear intent
and constructive delivery

Once a gift is made: it’s irrevocable: if was revocable gift: court may not enforce
II.
ESTATES IN LAND AND FUTURE INTERESTS
Intestate succession laws: determine next of kin. When someone dies, who gets it absent
will. Who is heirs?
 No living person has heirs, only determine once they die
 Escheat: no heirs: land goes to state
Words of purchase and words of limitation
 Ex. “ To A and his heirs”
o To A=words of purchase: who has interest
o And his heirs=words of limitation. Do not describe ownership, describe
nature of interest in owner
 Each possessory estate has different words of limitation. “and his
heirs” is fee simple absolute
A. Possessory Estates
1.
2.
3.
4.
5.
6.
Fee Simple Absolute
Fee Tail
Life Estates
Fee Simple determinable
Fee Simple Subject to condition Subsequent
Fee Simple subject to executory limitation
1. Fee Simple Absolute: all rights: whole bundle of sticks
1. x is entitled to present possession
2. x is entitled to future possession until he dies
3. x’s heirs entitled to blackacre immediately upon X’s death
15
 Alienable: can sell while alive
o Defeat devisees and heirs right
 Right to devise: can give in will to whoever he wants. Transfer occurs at death
o Defeat heirs
 Descendable: inheritable to heirs: by intestate succession rules
 Right to use
 Right to exclude
 Continues forever, but not absolute ownership (subject to other rules: government,
zoning, police power, escheats to state, other private owners)
 Magic words needed: “and his heirs”
 O sells to blackacre: only sells life estate at common law
 On exam: words of limitation are necessary to transfer a fee simple absolute
 How FSA be limited
o Eminent domain
o State police powers
o Private land use actions (easement)
o Other land owners through judicial decisions
o State can limit (if A dies with out airs, goes to state)
2. Fee Tail: O owns blackacre in fee tail: unconditioned present possessory interest
 Right to present possession
 Right to future possession until death
 But land can only go to direct lineal descendants (sons, daughters, grandchildren, not
nieces and nephews): so is descendable
o Would revert when line runs out
 Not a devisable interest
 Alienable: but can only sell your interest. So O can only sell for O’s lifetime
o “life estate pur outré vie”: life estate measured by someone else
 magic words of limitation: O owns land in fee simple absolute.
o To make fee tail: “O to A and the heirs of his body”
 To a=words of purchase
 And the heirs of his body=words of limitation: nature of ownership
and how it may descend
 When direct line runs out: it expires: must be a reversion somewhere
 Split in authority
o Some states: any attempt to create a fee tail is interpreted as fee simple
absolute (bc repubnance for aristorcharcy)
o Majority: (MA, VA, DC): statute: if use fee tail language: then A acquires life
estate, and children get a remainder
 A could convey life estate to someone else
 Children get remainder in fee simple absolute
 This is fee tail, but only for one generation
o Most fee tails eliminated by statute: but statutes don’t apply backward:
common law rule governs if estate created before statute
 Fight between policy in alienability of land vs intent of parties
 Can do special form fee tail
o O to A and the heris of his body by W
16


W is kid, only goes to that heir and her children
O to A and the male heirs of his body (fee tail male), female
equivilant
3. Life Estate: O owns blackacre in life estate: unconditioned possessory interest
 O is entitled to present possession
 O is entitled to future possession until O’s death
 O’s heirs entitled to nothing by O’s ownership
 O may alienate only the right to posses during O’s life: estate per outré ve.
 Magic words: “To A for Life”
o To A= words of purchase
o For life=words of limitation: the only estate he’s got
 Doctrine of waste: limits the life tenants’ use of land: court balance competing
interests
 Not inheritable (descendable)
 Not devisable
 Alienable: becomes Life estate pur autre vie: is inheritable and devisable: but only as
long as the life it’s on is still in tact. After that, will revert
o So the pur autre vie: can sell, devise, descend, but only until measuring life
ends
Effectuate intent of party
 When conveyance ambigious: look to context. When that doesn’t work: look to rules of
interpretation/construction: Rules of construciton
o 1. Unless clear contrary intention: presumption is will designated to convey
testator’s entire interest in property (presume conveyance of fee simple
absolute)
 fee simple absolute is the default: if ambiguous: then it’s FSA
 at common law: life estate was presumed
o 2. Interpret wills that don’t create partial intestacy
 basically, don’t want part of estate to go by will, and other part to go
by other rules (intestate succession laws)
White v. Brown
 facts: woman gave land in weird conveyance: didn’t use magic language
 issue: pass life estate or FSA?
o Words were ambiguous
o Rule: rebuttable presumption that it goes in fsa
 2 ways to do it
 1. Ascertain the intent of the dessodent based on wholre
reasonable instrument
 2. Taking reasonable person approach
 if entire estate not conveyed, must say it explicitly
 presumption of conveyance in FSA
 preference to interpret wills that don’t create partial succession
 applied above two rules
 called it fee simple absolute:
17
o even though will said twice not to be sold
 court: still can sell: bc public policies disfavor restraints on alienation
o disabling and forfeiture
 disabling: you can’t do this
 forfeitrue: if try to do this, you’ll lose it
o these almost always held invalid: prefer free market efficiency. If B willing to
buy from A for price: B values more: net social gain
 will said to have and live in. FSA presumption. But will says can’t sell: against FSA:
but that hurts preventing aristocracy and non-alienation of land in free market
Woodrick v. Wood
 facts: D has life estate, P has future interest in it. D wants to destroy barn, P wants to
stop it
o ownership is split between present possessory interest and future interest
holder
o App: destroying barn increases value: no waste
 Waste: A should not be able to use land in matter that unreasonably interferes with the
expectation of B
o So P can seek injunction
o Issue: Who can bring it?
 Traditionally: holders of following future interests
 Reversion
 Holders of vested remainder in fee simple absolute
 Landlords whose tenants holds a term of years
 Today
 Holdse ro fany future interest can sue holder of any present
possessory estate in waste
 Less likely future interest will vest/become possessory, less
likely that P will prevail
 And cotenants can sue each other: look ahead
o Issue 2: What counts as waste?
 Even improvements (ammeliative waste): like building new
house: can bring value
 Common law: each piece of land unique, can’t be replicated,
any change is injury to future interest holder
 Under majority rule: need substantial punier damage required
to constitute waste (so life tenant can do whatever as long as
doesn’t damage value)
o Here: removal of barn: doesn’t decrease property value: no waste
 But: D still had to pay the P: defendant wanted to not have barn, find
bc you’re in possession: but still have to pay plaintiff (value of the
barn)
o Possible relief?
 Damages: amount present possessors activities reduced value of the
P’s interest
 Injunction to prevent future waste
 Any profits present possessor wrongfully obtained form the activities
that amounted to waste
18

In extreme cases: forfeiture of present possessor estate and
acceleration of future interest
Doctrine of Waste Cont.
 England: any physical alteration to land:
 Doctrine of waste: limits life tenants use of land but flexible:
 1. permits court to balance competing interest such as (balance
these to see if okay)
o 1. nature of property interest,
o 2. conduct in question,
o 3. and remedy sough
o affirmative v. permissive waste
 affirmative waste: voluntary injurious acts that substantially decrease
property value
 exceptions: commercial beneficial activity (mineral extraction,
timber): technically affirmative waste but can help against
being wasteful
 permissive waste: negligence, failing to take reasonable care
defeasible fees
4. Fee Simple Determinable: X owns fee simple determinable interest in blackacre
 Everything like fee simple absolute: except: subject to self-executing condition
 If condition broken: automatically ends X’s rights and reverts them
 Ex. “O conveys to A and his heirs unless A opens a bar on property”
o As soon as A opens a bar, A’s right to posses ends
o “so long”
 Attributes
o Alienable
o Devisable
o Inheritable (descendable)
 But condition remains on it
 Magic words: “O conveys to A and his heirs, so long as (or “unless” “until” “so
long”) land is not used for gambling)
 Condition is built into granting clause: makes it Fee simple
determinable, if separate clause, fee subject to condition subsequent
o “and his heirs” still required at common law to create the fee simple
o today, not necessary, bc opposite presumption
o so long=words of limitation
 possibility of reverter: is assumed in the conveyer (O): so possibility of reverter
always created with fee simple determinable
o attributes of possibility of reverter
 at common law
 not alienable
 not devisable
 but is descendable
o if no heirs, escheats to the state
o if reverts: goes back to FSA
19
 breakdown
o ends automatically upon occurrence of prohibited condition
o always creates possibility of reverter
 which can only be created for grantor, not a grantee
5. Fee Simple on Condition Subsequent: “O to A and his heirs, but if the land is used for
gambling, O may reenter and reclaim the land”
 if condition messed with: creates right of entry, not possibility of reverter
o don’t get back automatically
o need affirmative action
 difference: between this and determinable
o condition is separate clause then granting clause
 determinable; “O to A so long as land is claused”
 condition subsequent: “O to A, but if land is ever not used as farming,
then back to O.”
 if said: then to C: doesn’t work. Bc can’t create any interest in
third party other than remainder before Statute of uses. So this
wouldn’t work. Would end up being executory interest in C.
 attributes
o alienable
o devisable
o descendable
 but condition stays
 right to reentry: same attributes as reverter
o attributes
 not alienable
 not devisable
 but is descendable (inheritable)
 magic words
o “but if… then”
o “provided that if… then”
o “on the condition that if… then”
pre 1536: this wouldn’t work: “O to A and his heirs as long as the land is not used for
gambling, but if it is, then to B and his heirs”
o common law: can’t create future determinable ot 3rd party: bc that interest
was not alienable or devisable. So just cut everything after the but.
difference between Fee simple determinable and Fee simple on Condition Subsequent
 determinable: self executing reversion
 condition subsequent: creates right to reenter or reclaim land
 SoL effect: SoL begins for determinable as soon as condition broken (because then get
ejectment right). But not until assert right to reenter for condition subsequent
(because only once assert right can eject)
Mahrenholz v. County Board of School Trustees
 Land given to school on some condition, broken, given in another way, weird shit
happened
 Rule of construction: if deed can be read as either fee simple determinable or on
20
condition subsequent, read it as fee simple on condition subsequent
o Exp: bc want as little restrictions on land as possible
 When condition is built into granting clause: looks like fee simple
determinable
 If grant, (comma) then condition, seems more like fee simple on
condition subsequent
 Mattered here: bc if reversion not automatic, the grant to the P wouldn’t have meant
anything (bc possibility of reverter not alienable at common law or in Ill.). if was
condition subsequent, could give that to school, merging the interest: creating fee
simple absolute
 But bc condition was in fee simple determinable (in the granting clause: “only
remanded”): reversion happened automatically, so conveyance to P was good
Laches doctrine: if delay in right of entry to prejudice of holder of fee simple on condition
subsequent, might not get the right in equity court
 Especially in case where delay right of reentry until holder improves land
6. Fee Simple Subject to Executory Limitation: only makes sense when look at executory
limitation
B. Future Interests
1.
2.
3.
4.
5.
6.
Reverter- Follows a fee tail or a life estate
possibility of reverter- follows a FSD
Right to entry—Follows FSCS
vested remainder
contingent remainder
executory interest
Future interest
Reversion
(life estate/fee tail)
Possibility of a
reverter
Right to entry/ power
of termination
Vested remainder
Alienability
Yes
Devisability
Yes
Descendability
yes
No
No
Yes
No
No
Yes
Yes
Yes
Yes
Contingent Remainder
No
Yes
Yes-
Executory interest
No
Yes
Yes
Future Interest in Grantee
1. . Reversion: “O to A for life” Future interest in the grantor
21




O conveyed away life estate, Law assumes O wanted to retain rest: this is reversion
Same if conveyance is fee tail, or term of years
Transforms back to FSA when grantor gets it back
Definitions
o 1. A future interest implied by the law in a grantor following a fee tail, a life
estate, or a term of years, If the grantor says nothing about who gets the land
following the expiration of the fee tail, life estate, or term of years
o 2. If O, owning a fee simple absolute, creates a fee tail, a life estate, or a term
of years, and does not at the same time convey away a vested remainder in
fee simple absolute, O has a reversion
o 3. (over simplified) the interest remaining in the grantor, or in the successor in
interest of a testator, who transfers a vested estate of a lesser quantum that
that of the vested estate which he has
 attributes
o alienable
o devisable
o desendible
2. Possibility of Reverter: created by Fee Simple Determinable, in the grantor
3. Right of entry: created by fee simple on condition subsequent, in the grantor
Future interest in Third Parties
4/5. Remainder: future interest in a grantee
 definition: future interest in grantee following an expireable estate
o 1. Future interest
o 2. Created in a grantee
o 3. That has following three characteristics
 A. Must follow an expireable estate (life estate, fee tail, term of years)
 B. Must be capable of taking effect immediately upon expiration of
proceeding expireable estate
 as soon as life estate ends, must be able to be transformed into
present possessory interest
 C. Can’t take effect before expiration of proceeding expireable estate
 Rule of construction: pre 1536: condition that could be read to be verifiable at A’s
death should be read that way
o But won’t go against unambiguous grant
 Ex. O to A for life, then if B marries C either before or after A’s death, to B and his
heirs
o Not valid: bc condition may not vest until after expiration of estate
 Common law courts: “but if” seemed to be impermissible cut off. “if” signals test at
end of possessory estate
4. Vested Remainder: like a reversion but for a grantee
 Remainder is vested if:
22
 Ex.
o 1. It’s holder is a person who is both born and ascertainable; and
 (alive and can tell who it is at the time of conveyance)
o 2. There is no condition other than the expiration of the proceeding estate
(life estate, term of years, fee tail) which must be met before the future
interest may become possessory
 B just waiting for possessory estate to end
 Get vested remainder in fee simple absolute
o “O to A for life, then to B and her heirs”
 characteristics
o alienable
o devisable
o discendable
 bad ex: “O to A for life, then to B and her heirs if B survives A
o B only gets it if he is alive: so missed 2. There’s a further condition
 Don’t have reversion in vested remainder
 Ex. : “O to A for life, then to A’s children and their heirs”
o A has no child
 Then conditioned remainder: bc held by unborn person
o A has a child
 Vested remainder subject to open: the result o f a conveyance of a
remainder to a class of ppl, of which at least one member is in
existence and has met any condition precedent imposed on the class
 Vested, subject to open
 Bc one child makes remainder vested
 But more children could come about
 Ex. “O to A for life, then to B’s children and their heirs. B has 2 children, X and Y.
then A dies. Then B has a third child
o X and Y split FSA
o Z gets nothing: Class closes when A dies
o Anyone meeting condition after class closing (possessory estate ending.
Future interest becoming possessory) is not included
o Rule of convenience: class closes as soon as any member of the class is
entitled to demand present possession of his or her share
 so when A dies, X and Y entitled to claim share, class closes, Z not
part of it
 ex: “O to A for life, then to B’s children who reach 21 and their heirs. B has 2 children
(X age 25; Y age 10). A dies. Then B has two more children, S and D. Then Y turns
21
o S and D: get nothing. Class closes upon A’s death
o X: got a vested remainder subject to open. When A died, that became present
possessory in FSA.
o Y: split of authority. Issue: does rule of convenience require Y to just be alive
to be in? or must he also meet the second condition (being 21)?
 Depends on policy
 Intent: Y was alive when conveyance made, O probably knew Y,
wanted to share benefit: so Y gets half of FSA when he turns 21
 Certainty (point of rule of convenience): uncertainty (more ppl
23
gaining ownership rights) is disincentive to invest. Forcing condition
met as well as being alive: makes estate more certain
 Glicksman: probably Y would get nothing
 Vested Remainder Subject to Open: someone’s interest is vested, but more people
could join
o no version, bc it’s vested
o O to A for life, then to A’s children.” A has 1 kid
o Class closes at end of A’s life: when no more people can join
5. Contingent Remainder: remainder (future interest in grantee following expireable estate,
capable of taking effect immediately upon expiration of estate and can’t take effect before
expiration of proceeding estate) requirements, but not vested.
 Possible ways of getting it: (just not vested for whatever reason)
o 1. If held by a person who is unborn or
o 3. unascertainable; or
o 2. It is subject to a condition (other than expiration of the preceding present
possessory estate) which must be satisfied before its holder is entitled to come
into possession
o must always be future interest following contingent remainder: reversion
 ex. “O to A for life, then to B and her heirs if B survives A
o contingent: bc a second condition
o but at A’s death, the future interest vests
 happens at same time as present possessory interest ending, but by
wording it’s contingent
 ex 2: O to A for life, then to B and her heirs if B reaches 21. While A is alive, B
reaches 21
o B’s interest vests when he turns 21
 Ex 3. O to A for life, then to B and her heirs if B survives A. B dies before A
o When B dies, impossible to meet condition: so his interest is destroyed
o So when A dies, goes back to O in reversion (reversion always created with
contingent remainders)
o So at conveyance: there was actually present possessory interest (A) and two
future interests
 B’s contingent remainder
 O’s reversion
 Rule: there is always a future interest following contingent remainder. If grant is silent,
implied reversion in grantor (O).
 Once condition is met: turns into a vested remainder
 Trick: if survivorship condition: then remainder is contingent: therefore not alienable.
Also not devisible or descendable: because those happen once someone is dead. Can’t
get the interest if dead when survivorship condition on it
 Ex. “O to A for life, then to B and his heirs if B ever reaches age 21, but if B never
reaches age 21, then to C and his heirs.
o 4 interests created
 A: life estate
 B: contingent remainder: must reach 21, further condition
 Vests when B reaches 21 (destroying C’s interest)
24





C: contingent remainder. Condition on B never reaching 21 (he’s
gotta die)
 So vests when B dies, otherwise still possible for B to reach 21
 Called a “alternative contingent remainder”
 O: reversion in FSA
o Possible neither of these conditions work out: so goes back to O
 A dies before B is 18
 Goes back to O: neither remainder has vested
 Common law: this destroys B and C’s interests
 Or if A loses life estate for whatever reason: before B is 21 but still
alive: goes back to O
Ex 2: “O to A for life, then if B marries C, to B and his heirs
o A. While A is still alive, B marries C
 B marrying C: condition met: remainder vests
 When contingent remainder vests, implied reversion ends
 So A keeps life estate; B gets vested remainder in FSA
o B. while A and B are both alive, and B is still unmarried, C dies
 B’s contingent remainder is destroyed: bc it became impossible to
meet condition
 So A retains life estate, O keeps reversion, B’s remainder gone
Ex 3: “O to A for life, then to B’s heirs and their heirs”
o Contingent remainder in B’s heirs. Contingent because while B is alive, B has
no heirs. (remember: heirs only after someone dies: so while alive, they are
unascertainable, so can’t have vested interest)
 Remainder held by unascertainable people: so contingent
o If B dies: intestate succession laws to see who heir is. That person gets vested
remainder (but only when B dies)
o If A dies before B: then reversion to O
Destruction of Contingent Remainder (once destroyed, never comes back)
(disjunctive) Contingent remainder is destroyed if…
o 1. it becomes impossible for the holder of a remainder to meet an applicable
condition precedent
 ex. “O to A for life, then to B and his heirs if B marries C. C dies
before A”
 can’t vest in time
o 2. If its holder fails to meet an applicable condition precedent on time
 ex. “O to A for life, then to B and his heirs if B reaches 21.” A dies, B
is 19
 reversion to O. B loses remainder.
 basically failure to vest in time
o 3. By merger
 ex. “O to A for life, then to B and her heirs”. A conveys her life estate
to B
 B has life estate and remainder after: merge to FSA
Rule of destructibility: contingent remainders are destroyed if the holder of the
supporting estate (the vested estate that comes before the contingent remainder)
acquires the next vested estate after the contingent remainder, or vice versa.
o Ex1
25




o Ex 2

. “O to A for life, then to the first child of A who reaches 21 and that
child’s heirs” A has child, B (not 21)
 A: life estate
 B: contingent remainder. bc not yet 21, hasn’t met conditions
o It’s also open to other ppl: A could have another kid
that reaches 21 first, B could die, etc etc
 O: reversion
Then: O sells her reversion to A
 Rule of destructibility. A has supporting estate (the life estate)
and the next vested estate after the contingent remainder (the
reversion) merge into FSA
 So A gets FSA: destroys B’s contingent remainder
OR: A sells life estate to O
 Same thing: rule of destructibility
Policy: make land alienable: prefer FSA
“O to A for life, then to B and her heirs if B is married, but if B is
single, then to C and her heirs.
 The Exception to the Destructibility Rule: there is no merger and destruction of a
contingent remainder if the vested estate that precedes the contingent remainder and
the next vested estate that follows the contingent remainder were created in the
same person simultaneously with the creation of the contingent remainder
o Ex.
 O devices (gives at death) Blackacre to A for life, then to A’s first
child and that child’s heirs
 A. at O’s death, A has no children
 A’s first child has contingent remainder in fee simple absolute
o Contingent: bc unborn at the time
 Reversion in O
 B. O’s will is silent concerning the disposition of the rest of O’s
estate, including O’s reversion. A is O’s sole heir.
 So, conveyance was device (at death): A get’s life estate and
reversion.
 A’s unborn children: get contingent remainder
 You would think that A’s interest would merge: creating FSA
and destroying contingent remainder BUT: Exception to rule
of distructability
o A’s unborn children’s contingent remainder doesn’t
get destroyed: bc A’s life estate and reversion created
simultaneously with contingent remainder. If A
doesn’t have a kid, contingent remainder never vests.
If A does have a kid, remainder vests.
o Reversion remains with O: but was passed to A, so
remains there
o Explanation: Expireable estate, reversion, and contingent remainder must all
happen at the same time for exception to apply
 It’s the intent of the conveyer: otherwise why would say this stuff?
 The Exception to the Exception (really it’s just when the exception doesn’t apply:
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following a conveyance that contains a contingent remainder that was not destroyed
as a result of the exception to the destructibility rule, if the vested estates that precede
and follow the contingent remainder are conveyed to the same person the intervening
contingent remainder is destroyed
o Explanation: sale of vested estate that proceeds the contingent remainder (the
life estate) and the vested estate that follows (the remainder) to X, so X’s
interests not created at same time as holder of contingent remainder.
Therefore, exception to the rule doesn’t apply. X’s interests merge: gets FSA
o Ex.
 “O devices (gives at death) to A for life, then to A’s first child and
that child’s heirs” .(same as above)
 A has life estate and reversion: (BC A is O’s heir, got the
reversion)
 A’s unborn child: has contingent remainder
 A conveys her life estate and her reversion to X
 Then X has vested estate that proceeds and follows contingent
remainder: got it at a different time than the contingent
remainder (A’s unborn child got it when O died): so exception
doesn’t apply
 X gets FSA
 Could use straw man to get rid of contingent remainder
 A has a kid before above
 Then remainder vests, rule of destructibility is gone
 Vesting: once remainder is vested: then there is no more reversion: so rule of
destructibility is gone
 Alternative Contingent Remainders: X has a contingent remainder, X’s remainder is
followed immideiently by Y’s future interest (also a remainder) which becomes
possessory in exact circumstances when X’s interest doesn’t become possessory
o ex. O to A for life, then if B marries C, to B and his heirs, but if not, to D and
his heirs
 B and D have alternative contingent remainders.
 “but if” usually says not remainder. but here: if the “but if” is to
introduce an alternative contingent remainder
1536: statute of uses: allow future interests that don’t meet remainder requirements
 Pre 1536: no future interest could be created in favor of a transferee if the interest could
operate to cut short a free-hold estate.
o Had to meet conditions of remainder or would be tossed out
6. Executory interest
 Definitions
o 1. An Executory interest is a future interest in a grantee which is neither a
vested nor a contingent remainder
o 2. An excecutory interest is a future interest in a grantee which connot take
effect upon the natural expiration of the preceding estate
o 3. an executory interest is a future interest in a grantee that must, in order to
become possessory:
 a. divest or cut short some interest in another grantee (a shifting
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executory interest) or
 b. divest the grantor in the future (a springing executory interest)
o 4. An executory interest is a future interest in grantees that would have been
void at law before the adoption of the Statute of Uses in 1536
o basically test if future interest is a remainder. if not, then it’s executory
 remainder if
 follows expireable estate (fee tail, life estate, term if years)
 Must be capable of taking effect immediately upon expiration
of proceeding expireable estate
 Can’t take effect before expiration of proceeding expireable
estate
 If not: then it’s executory interest
 examples
o 1. “O to A and her heirs when A gets married.” Five years after the grant, A
gets married
 Pre 1536: O keeps FSA. A gets nothing: Bc only future interests in
grantee was remainder
 After 1546:
 A has executory interest (springing) (doesn’t follow 1 of the 3
expireable estates allowed: life estate, fee tail, term of years)
 O has Fee simple subject to executory limitation
o 2. O to A for life, then, one day after A’s death, to B and her heirs
 pre 1536: A life estate, B has nothing. O has reversion
 post 1536
 A has life estate
 O has reversion: reversion is fee simple subject to executory
limitation (will get it for 1 day)
 B has executory interest: springs out of O’s 1 day reversion
o 3. O to A and her heirs as long as the land is farmed, then to B and her heirs
 pre 1536: B gets nothing, bc followed a fee simple determinable (or
on condition subsequent), not expireable estate
 post 1536:
 B has executory interest: gets shifting executory interest in fee
simple absolute
 A: fee simple subject to executory limitation
 Springing v. Shifting executory Interest
o Springing executory interest: a future interest in a grantee which transfers
the right to possession form the grantor to a grantee upon the occurrence of a
designated event
o Shifting executory interest: a future interest in a grantee which shifts the
right to possession from one grantee to another, cutting short the first
grantee’s right to possession before the natural termination of that grantee’s
estate
o Focus on who’s present possession is cut short: if grantor’s: then springing. If
another grantee’s: then shifting
 Examples
o 1. O to A for life, but if B climbs mount Everest, tehn to B and his heirs
 A has life estate subject to executory interest
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
B has shifting executory interest (bc could happen before natural end
of possessory estate): when/if climbs everst: gets it
 O has reversion
 If O or A sells their interest: then executory condition goes with it
o 2. “O to A for life, then to B and his heirs, but if B ever uses the land for a
tavern, then to C and his heirs
 A: life estate
 B: vested remainder subject to executory interest
 Vested: bc no condition precedent
 Once A dies: gets a Fee simple subject to executory limitation
 C: executory interest. Shifting out of B’s fee simple subject to
executory limitation
 Rule (for our purposes): executory interest can only result in a fee simple absolute
 Divesting Remainder: a vested future interest held by one person that is subject to
being cut off by a future interest held by another person
o Examples
 1. “O to A for life, then to B and his heirs, but if A ever uses the land
for a tavern, then to C and his heirs”
 A has life estate subject to executory interest
 B has vested remainder, subject to divestment, in fee simple
absolute (bc if A uses the land for a tavern, his vested
remainder will be cut off)
 C has shifting executory interest
o Vested remainder, subject to divestment, in fee simple absolute: (above)
when B might lose his remainder while it is still a future interest
o Vested remainder in fee simple on executory limitation (not above bc “if A
ever uses for a tavern”, once A is gone, can’t use as a tavern): if B might lose
the interest only after it has become a present possessory estate
 Example: “O to A for life, then to B and his heirs, but if B ever uses
the land for a tavern, then to C and his heirs”
 A has life estate
 B has vested remainder in fee simple absolute on executory
limitation
 C has executory interest in fee simple absolute
o Can combine vested remainder, subject to divestment and vested remainder in
fee simple absolute on executory limitation
 Example: “O to A for life, then to B and his heirs, but if B dies under
21, then to C and his heirs”
 B: has vested interest: bc doesn’t have to reach 21 before
getting it but…
o B could lose before he gets present possession (dies
before A): so: vested remainder, subject to divestment
o B could also lose after he gets present possession (A
dies, but then B dies before 21)
o So it’s both: but call both a vested remainder, subject
to divestment, in fee simple absolute
Distinguishing between vested remainders subject to divestment and contingent remainders
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 A remainder is contingent if the conditional elements is incorporated into the
language of the conveyance that creates the remainder
 A remainder is vested if the conditional elements appears in a separate divesting
clause that appears after the conveyance of a vested interest
 Explanation
o Whether a remainder is vested or contingent depends upon the language
employed. If the conditional element is incorporated into the description of,
or into the gift to, the reamainderman, then the remainder is contingent. BUT
if, after the words giving a vested interest, a clause is added divesting it, the
remainder is vested (but subject to divestment)
 Explanation: if conveyance is without a condition clause, then a
clause is added adding a condition, it’s going to be a vested interest
subject to divestment
 Examples
o 1. “O to A for life, then to B and her heirs if B climbs Mt. Everest”
 condition is built into clause: B has contingent remainder
o 2. “O to A for life, then to C and her heirs, but if B climbs Mt. Everest, then
to B and her heirs”
 condition after clause: so B has vested remainder, subject to
divestment, in fee simple absolute
o 3. “O to A for life, then to B and her heirs if B has climbed Mt. Everest, but if
B hasn’t, then to C and her heirs”
 B and C get alternative contingent remainders: bc built in to giving
clause
Attack Plan for vested/contingent remainders and executory interest
1. Check if it qualifies as a remainder
a. future interest
b. in a grantee
c. that meets following conditions
i. following expireable estate
ii. becomes take effect immediately at end of expireable estate
iii. won’t cut a present possessory interest short
2. if yes: is it vested or contingent remainder?
a. vested: if no condition in same clause as language of the conveyance that
creates the remainder
b. contingent: if conditional element incorporated in the language of the
conveyance that creates the remainder
3. if no: then it’s executory interest
 significance of above
o contingent remainders: disappear if condition is not satisfied by end of
expireable estate (life estate, term of years, fee tail)
o executory interest does not disappear when condition not met by end of
present possessory estate
 but will disappear if the condition becomes impossible
 examples
o 1. “O to A for life, then to B and his heirs when B becomes 21”
 A has life estate
30


O gets reversion
Seems B could have contingent remainder or executory interest
 Contingent remainder: B must turn 21 before A dies for his
interest to vest. Get estate when A dies then
 Executory interest: B gets it when he turns 21, regardless of if
A died when he was 18.
o Rule: when interest can be interpreted as contingent remainder or executory
interest, then call it contingent remainder**below
 The Rule of Purefoy v. Rogers: If grantee’s future interest can possibly take effect as a
remainder, when viewed from the time of the grant, we will treat it as a contingent
remainder, and not as an executory interest
o So above: “O to A for life, then to B and his heirs when B becomes 21”
 Can take effect as a remainder: B turns 21 before A dies. A dies. B
gets fee simple absolute
 So treat as contingent remainder
o Reasoning
 Courts like alienability, speculative interests impair marketability
 Want to get rid of as many conditional interests as possible
 So treating as contingent remainder is preferable to get rid of it, if
doesn’t vest in time
 So to protect from this: do the following:
o “O to A for life, then to B and his heirs if B reaches 21, no sooner than one
day after A’s death”
 A has life estate
 B has executory interest (bc doesn’t become possessory immediately
after expireable possessory estate)
 O has reversion
 So when A dies, one day reversion to O: executory interest doesn’t
end for failure to vest in time: B gets it back 1 day later (if already 21)
or when turns 21
 The Rule in Shelly’s Case (eliminated in almost all US jurisdictions)
o When
o 1. One instrument
o 2. Creates a life estate in land in A, and
o 3. Purports to create a remainder in persons described as A’s heirs (or the
heirs of A’s body) and
o 4. The life estate and remainder are both legal or both equitable (basically
both created by will or both by intestate succession laws)
o THEN: the remainder becomes a remainder in fee simple (or fee tail if heirs
of their body used) in A.
o Reasoning
 Helps tax transactions, helps alienability, eliminates contingent future
interests: but defeats intent of O to give A’s heirs future interest and
not give A FSA
o Example
 “O to A for life, then to A’s heirs and their heirs” (39)
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 A gets life estate
 A’s heirs get remainder: it’s contingent bc A’s heirs are
unascertainable
 But bc of rule in Shelly’s case: A gets the remainder in fee
simple.
 So A’s interest merge: get fee simple absolute
o To get around
 “O to A for life, then, one day after A’s death. To A’s heirs and their
heirs” (40)
 A gets life estate
 A’s heirs dont get contingent remainder: bc doesn’t meet
condition
o Instead they get executory interest: doesn’t disappear
for failure to vest in time
 O gets reversion in fee simple subject to executory limitation
Doctrine of Worthier Title (gone in most jurisdictions as well)
 Elements (find these in nathalie’s book)
o Where
o 1. There is an inter vivos conveyance of land by a grantor to a person,
o 2. With a limitation over (for) grantor’s own heirs
o 3. either by way of remainder or executory interest
o Then: No future interest in the heirs is created.
o Instead: the reversion is retained by the grantor (only ideally: the “then” part
is the key”
 Essentially: a remainder cannot be created in the grantor’s own heirs
 Examples
o “O to A for life, then to O’s heirs and their heirs.” Done inter vivos (41)
 A gets life estate
 O’s heirs would get contingent remainder (bc heirs don’t exist yet)
 O gets reversion
 BUT: doctrine of worthier title: reversion retained by O in FSA, as is
normally implied
o “O to A and his heirs as long as A is single, but if A remarries, then to O’s
heirs and their heirs” assume inter vivos (42)
 O’s heirs would normally get shifting executory interest
 But doctrine of worthier title: no future interest in the heirs is created
 So makes language “but if A remarries…” not make sense
 All that remains: “O to A and his heirs as long as A is single”
 A has fee simple determinable (remember to look at language)
 O has possibility of reverter
Life estates determinable and on executory limitation
 Examples
o 1. “O to A for life as long as she remains a widow” (43)
 A has life estate determinable (would lose land if remarried)
 O gets possibility of reverter in FSA (if A remarries)
 Reverter: is when determinable event triggered
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
O also gets implied reversion in FSA: when A dies
 Reversion: when timed estate ends (when life estate person
dies; when term of years ends; when fee tail runs out)
 Courts: will just give O reversion in FSA: bc stronger claim
 And if have both, can screw things up, bc one is alienable and
one isn’t
 Rule of construction of Life Estates Determinable: when O creates a future interest
in a grantee (B) which follows a life estate determinable, the courts will assume that
O intended to grant a remainder to B, as well as an executory interest (unless a
contrary intent is clear)
o Examples
 44: “O to A for life as long as she remains a widow, then to B and her
heirs.”
 Issue: does B get it only if A remarries, or also if A dies?
 Apply the rule: assume O intended to grant remainder to B and
executory interest
 A has life estate on executory limitation
 B has vested remainder in FSA
 B has shifting executory interest in FSA (if A remarries)
 45 “O to A for life, but if B reaches 21 while A is alive, then and only
then to B and her heirs”
 conveyance is clear: so don’t apply rule of construction
 A gets life estate subject to executory interest
 B gets shifting executory interest: on turning 21
 O retains reversion in FSA
o Reminder: third party after expirable estate determinable: can have an
executory interest and a vested remainder. look for the language in the
granting clause, because it can cut it short, then the language after granting
clause: can follow: just like normal vested remained
 Trick: look for life estate determinable
Rule Against Perpetuities
 Rule:
o No future interest created in a grantee is valid unless it either
 Vests (in the case of remainder) or
 Becomes possessory (in the case of an executory interest)
o If it ever vests or becomes possessory
o Not later than 21 years after the death of some life or lives in being at the
creation of the future interest
 What’s it do?
o Prohibits certain types of future interest in grantees (get rid of dead hand
prblm). Limits future interests that impaired marketability
 Future interests subject to the rule (only in a grantee)
o Contingent remainders
o Executory interests
o Vested remainders subject to open
 Proving validity: to prove validity of a future interest subject to the Rule of
Perpetuities, it is necessary to show that the future interest will necessarily vest or
33
become possessory within 21 years after the death of some life in being at the
creation of the future interest
 Attack Test (do each step in order)
o 1. Classify the interests created by a grant or devise to see if any of them is
subject to the rule (if not subject to the rule, you’re done)
o 2. If either contingent remainder, executory interest, or vested remainder in
grantee: then: determine the exact point in time (the triggering event) when
each future interest subject to the rule will vest or become possessory, if it
ever does
 if contingent remainder: what’s it take to vest
 if vested remainder subject to open: what’s it take for class to close:
this counts as vesting for purpose of the rule
 if executory interest: when does it become possessory?
o 3. Figure out if there is any possibility that the triggering event could be too
late (more than 21 years after the end of all lives in being at the creation of
that future interest)
 if no: then satisfied rule against perpetuities
 if can figure out one way to violate (more than 21 years after death):
violated the rule: future interest is gone
 examples
o 46: “O to A and her heirs as long as the land is not used for a tavern, then to B
and her heirs”
 step 1
 A has fee simple subject to executory interest
 B has executory interest in FSA
 Step 2: (B’s executory interest is subject to rule)
 For it to become possessory: A/heirs has to use as a tavern
 Step 3: A’s heirs could not use as tavern for 100 years, then do it
 So B’s interest wouldn’t vest until apprx. 80 years later: TOO
LATE
 B’s interest fails the rule against perpetuities, the executory
interest is void, and void from the beginning
 So strieke the shit that’s no good. Left with: “O to A and her heirs as
long as the land is not used for a tavern”
 A has fee simple determinable
 O has possibility of a reverter
o This is not covered by the rule: so could be 100 yrs
later
o 47 “O to A and her heirs, but if the land is used for a tavern, then to B and her
heirs”
 A has fee simple determinable
 B has shifting executory interest
 Subject to rule: move to step 2
 Triggering event: A or heirs uses as a tavern
 Could happen too late? YES: 100 generations later, A’s heirs use as
tavern—so strike bas stuff
 Left with: “O to A and her heirs, but if the land is used for a tavern”
 “but” clause doesn’t make sense: strike it
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 “O to A and her heirs”
o A gets FSA
 Check if the clause makes sense after the bas stuff, words of limitation
are treated differently
o 48: “O to A for life, then to B and his heirs if B attains the age of 30.” At time
of grant, B is 2
 step 1: classify
 A has life estate
 B has contingent remainder: on condition of reaching 30
 O has implied reversion in FSA
 Step 2: triggering event
 B turning 30
 Step 3: too late? (21 years after everyone alive at time of grant is
dead)
 NO: B is alive at the time of the grant. If contingent remainder
vests, it will be during B’s lifetime. So everything stays
o 49. “O to A for life, then to A’s children for their lives, then to B and her
heirs if B is then alive, but if B is not then alive to C and her heirs.” At time
of grant, A, B, and C are alive and A has one child, S
 step 1: id the interests to see if any are subject:
 A has life estate
 A’s children (S) have vested remainder subject to open in life
estate (have 1 child so vested, but open bc A can have more
children)
 B has contingent remainder: contingent bc he has to be alive at
some point in time
 C has alternative contingent remainder in fee simple absolute:
if B is dead
 O has implied reversion
 Step 2: for A’s children’s vested remainder subject to open: when
does it close?
 When A dies, bc then A can’t have any kids
 Step 3: too late? NO: bc A alive at time of grant, when A dies, closes,
can’t be 21 years later
 So A’s children vested remainder stays
 Step 2: for B’s contingent remainder
 When does it vest?
o When B is still alive at death of A’s last child
 Step 3: too late? NO: bc B is alive at time of grant, can’t vest after he
dies, so can’t be 21 years
 Step 2 for C’s alternative contingent remainder: when’s it vest?
 When B dies and at least one of A’s kids are alive
 Too late? NO.
 B can’t die 21 years after B dies
 So contingent remainder vests as soon as B dies
 If none of the kids were alive when B dies: then C’s interest is
gone anyway
35

Step 2 for S’s vested remainder subject to open
 Closes when A dies.
 Step 3: can’t be too late. Bc A can’t die 21 years after A dies
 Result:
 Everything stays
o 50. “O to A for life, then to A’s children for their lives, then to A’s
grandchildren living at the death of A’s last surviving child, and their heirs.”
At time of grant, A has no children or grandchildren
 step 1: ID the interests
 A has life estate
 A’s children have contingent remainder in life estate (they
have to be born)
 A’s grandchildren living at the death of A’s last surviving
child: have contingent remainder in FSA (bc not born yet)
 O has implied reversion in FSA
 For A’s children:
 Step 2 for A’s children: triggering event?
o They are born.
o But then it’s vested remainder subject to open: so A
has to die to close it
 Step 3: too late? NO
o If it’s going to vest, A will have to have kids then die
o Can’t happen 21 years after A dies
 For A’s grandchildren living at the death of A’s last surviving child
 Step 2: triggering event:
o A has to have a child
o A’s child has to have a child: this vests contingent
remainder: but leaves it subject to open.
o All of A’s children then have to die: closes class
 Step 3: too late? YES
o A could have child, Y, then die. A’s child, Y, doesn’t
have a kid for 50 years. Then dies. Everybody is dead.
Too late: so strike it
 What’s left
o A has life estate
o A’s children have contingent remainder in life estate
o O has reversion in FSA
o 51. “T devises blackacre “to my grandchildren who reach 21 and their heirs”
 T devises (by will)
 Grandchildren: get executory interest in FSA (executory bc it’s not an
expirable estate)
 Triggering event: T’s grandchildren reach 21
 Too late? NO
 T is dead
 For triggering event (grandchildren take present possession)
there needs to be a grandchild
 Not possible unless T has a child at time he died: X
 If X has a kid, X can’t die more than 21 years before kid turns
36
21
 So interest stays
 T retains fee simple on executory limitation: goes by devise or by
intestate succession after T dies: but rule doesn’t apply
o 52. “O to A for life, then to B for life, then to B’s children for life, then to B’s
grandchildren and their heirs.” At the time of the grant, A and B are alive and
B has two children, S and D. B has no grandchildren.
 ID the interests
 A has life estate
 B has contingent remainder in life estate (contingent on being
alive when A dies)
 B’s children: vested remainder subject to open in life estate (bc
B could have more kids)
 B’s grandchildren: contingent remainder (bc not born yet)
 B’s contingent remainder in life estate
 Triggering event: B alive when A dies
 Too late? NO: B alive at time of grant so he is measuring life,
can’t die 21 years before he dies
 B’s children
 Triggering event: B dies
 Too late? No: B is measuring life. Closes as soon as B dies
 B’s Grandchildren
 Triggering event:
o They are born: turns to vested remainder subject to
open
o Then all of B’s kids have to die
 Too late?
o Yes
 B has another kid, Q
 S and D die, B dies
 Q lives for 40 years more. So vested interest
doesn’t close
 So eliminate this interest. Left with: A life estate; B’s
contingent remainder; B’s childrens’ vested remainder; O’s
reversion
o 53: Get around above: insert validating life that can’t die 21 years after death:
“O to A for life, then to B for life, then to B’s children for life, then to B’s
grandchildren who are born within 21 years after the death of the last survivor
of B’s children currently alive and their heirs
 all the same except: B’s grandchildren who are born within 21 years
after the death of the last survivor of B’s children currently alive and
their heirs
 triggering event: B’s children alive at time of will die (S and D
die)
 after 21 years: the vested remainder subject to open closes
 so not too late
 hint: insert name of living person: anchor that to vest
contingent/vested remainder subject to open. (within 21 years of
37
person X who was alive at time of grant, then won’t be too late)
o 54: “O to such of A’s children as attain the age of 25 and their heirs”
 A. at time of grant, A is dead and has two living children, X and Y,
who are not 25
 A’s children: executory interest, must reach 25 (not contingent
remainder bc not following expireable estate
 Triggering event: they turn 25
 Too late?: No. A can’t have any more kids. X and Y are alive,
so can’t die 21 years before they turn 25.
 Left with
o O retains fee simple subject to executory limitation
o A’s kids keep their executory interest: springing
 B. same as above: but A is still alive
 A’s children: executory interest
 Triggering event: A’s children reach 25
 Too late? Yes
o A’s already born kids die
o A has another kid, Q, then A immediately dies
o Q wont reach 25 before 21 years runs
o Hints
 Probably not going to be rule of perpetuities problem where…
 The event that causes the contingent remainder to vest or the
executory interest to become possessory (hereafter referred
to as "the triggering event") relates to the activities,
reaching of a certain age, or death of a named, living
individual. See, e.g, # 33, 48, 49, and 52 above.
 The triggering event relates to the activities, reaching of a
certain age, or death of a generic class of individuals, all of
whose members are necessarily alive at the time of the
grant. (like children of a dead person) See, e.g., "O to A for
life, then to B's children for life, then to B's grandchildren
who are alive at the death of B's last surviving child." At
the time of the grant, B is dead. See also # 54a above.
 The triggering event relates to the activities, reaching of a
certain age, or death of a generic class of individuals who
can be implied from the terms of the grant and whose
members are all necessarily alive at the time of the grant.
See, e.g., # 51 above.
 There probably Is going to be a perpetuates problem where
 The triggering event relates to the activities, reaching of a
certain age, or death of a generic class of individuals,
whose members might increase after the time of the grant.
See, e.g., # 50, 52, and 54b above.
 The triggering event does not relate to the activities,
reaching of a certain age, or death of any named, living
individual or of any class of individuals. See, e.g., # 46 and
47 above.
38
 More examples
o 56. “O to A for life, then to the first child of A who reaches 30 and that
child’s heirs.” Assume A is alive and has no children
 interests
 A has life estate
 A’s first child has contingent remainder (it could also be
executory interest, but rule of Purefoy v. Rogers)
 O’s reversion
 Step 2: triggering event
 A has a child and the child reaches 30 before A dies
 Too late? YES. A has a kid. Dies. Takes 29 years for kid to get to 30
 BUT NO: bc traditional common law rule: contingent remainder
destructible if fail to vest in time.
 So if A dies with child younger than 9, the contingent
remainder is destroyed
 So can’t vest too late
 So triggering event is really. A’s first child to reach 30
provided that happens before A is dead
o A is alive at time of grant. If the contingent remainder
is going to ever vest, it’s gotta happen within 21 years
of A dying (otherwise will just be destroyed): so
meets rule
 Result:
 in jurisdictions that follow rule of destructibility of contingent
remainders: will be good. Bc A will have to be alive for
contingent remainder to vest, or else destroyed. So if it’s
gonna vest at all, it’s within 21 years of A’s life: who is
measuring life
 in jurisdictions that abolished rule of destructibility
o future interest violates rule against perpetuities
o the contingent remainder is not destroyed for failing to
vest in time. So if A dies with a 1 year old, can take
another 29 years. Too late
C. Co-ownership
Co-ownership: right to present possession at the same time
Tenants in Common: separate but undivided interest in the property
 attributes
o alienable
o devisable (no right to survivorship)
o descendable (intestate succession)
Joint Tenants: have right of survivorship
 together regarded as single owner: each tenant owns undivided whole
o so when one dies, nothing passes to surviving joint tenant(s)
o just stays with status quo
39
 requirements: four unities
o 1. Time: interest acquired or vest at the same time
o 2. Title: acquire title by same instrument or by adverse possession
 Can never arise by intestate succession or other act of law
o 3. Interest: must have equal undivided shares and identical interest (measured
by duration)
o 4. Possession: each have right to possession of the whole
 One joint tenant can voluntarily give exclusive possession to another
 Some states don’t require all four requirements
o Like today: unequal shares: okay for joint tenancy
o Traditionally: uneqal shares=no unity of interest: not joint tenancy
 When 1 of unities ceases: turns to tenancy in common (so can get rid of it unilaterally)
 Avoids tax
o No probate tax: Bc no interest passes on the joint tenant’s death
 So also can’t be passed by will
o Subject to federal taxation: except husband wife exeption
o State tax law: protion owned is tax
o Nothing for creditors to gram after death
 Attributes
o Alienable (but destroys joint tenancy: turns to tenancy in common)
 But other joint tenancts still have joint tenancy, only turns the person
who sold into tenancy in common
o Not devisable
o Not descendable
Tenancy by the entirety: same as Joint Tenancy: but also requires marriage
 Husband and wife seised of intirety: so can’t unilaterally turn it into a tenancy in
common: must do it together
 Divorce:
o Some courts: turns into tenancy in common: absent agreement
o Some courts: convert to joint tenancy (other 4 attributes there)
 Attributes
o Not alienable: (unless consent of both spouses)
o Not Devisible: there is right to survivorship
o Not Descendible: there is right to survivorship
Presumptions
 Old: presume joint tenancy: don’t want to divide land
o So grant to two or more unmarried ppl created joint tenancy (assuming
unitites satisfied)
 Today: presume tenancy in common (unless clear intention otherwise
 For husband and wife: presume tenancy by the entirety
Examples
 57: “O to A and B and their heirs.” A and B not married
o traditional: A and B are joint tenants in fee simple absolute
o today: by statute: presume tenancy in common
40
 58 “O to A, B, and C and their heirs as joint tenants, and not as tenants in common.” A
conveys her interest to X. B dies, leaving Y as his sole heir.
o Conveyance to X severs joint tenancy between A to B and A to C
o But joint tenancy remains between B and C
o So Y gets nothing
o When B dies, C left with 2/3. X has 1/3 tenant in common
 59. “O to A, a one-third interest in Blackacre, and B, a two-thirds interest in Blackacre
and their heirs, as joint tenants and not tenants in common
o traditionally: tenants in common in FSA. Bc don’t have unity of interest
o today: joint tenants in FSA
 60. “O to H (husband) and W (wife) and their heirs
o common law: conveyance to two married people creates tenancy by the
entirety
o A. W conveys her interest to X and her heirs
 Void conveyance: seised of intirety
o B. H dies, with a will leaving all his property to S
 W owns property in FSA
 S has nothing: conveyance void
 61. “O to A for life, then to B’s children and their heirs”
o A. A and B are alive. B has one child, C
 A gets life estate
 C has vested interest subject to open in FSA
o B. B has a second child, D. Then B dies. Then A dies. Then C dies, with a
will leaving all of C’s property to X
 When D is born
 C and D have vested interest subject to open
 B dies: C and D’s interest closes
 C dies: leaving to X
 Void interest: bc joint tenancy: not devisable
 What about time requirement? C got interest at day of
conveyance, D didn’t get it until born
o This is not violation of unity of time
o The interest was created at the same time:
pursuant to the conveyance
Riddle v. Harmon
 Facts: husband and wife had joint tenancy
o Wife made conveyance to herself: to convert it into tenancy in common
o Then made a will: to devise her interest to her heir
 Old rule: can’t have grantor/grantee be same person to execute fief in livery of season:
it’s unseamely to infief yourself
o Avoid: by using strawman. Convey to 3rd party, they convey back
o Cali: had statute: about creation of joint tenancy. That no longer had to give
whole interest to 3rd party and then they convey back to satisfy unity of time
 Statute indicates: get rid of obsolete technicality: let ppl do their
intentions
 So new rule: can convey interest to oneself to destroy joint tenancy (allowed to do
directly what could do indirectly
o But some unfairness here
41
 If he dies first: she rips conveyance up: gees survivorship
 If she dies first, he assumed would get whole thing, fucks up plans
o So some jurisdictions: allowed to convey to self to eliminate joint tenancy but
must notify joint tenants
 Or conveyences that eliminate this problem
o O to A and B in joint life estate then to the survivor
 A and B have life estate (joint tenancy it traditionally, modern would
prob be tenancy in common): make clear
 Then contingent remainder in survivor: contingent bc unascertainable
o Tenancy in common in fee simple with an executory interest in sthe survivor
o Fee simple to take effect in possession in the future
Harms v. Sprague
 Facts
o Brothers owned land as joint tenants
o John: borrowed money for Sprague, by mortgaging out his section of the land
o Then john died, leaves everything to sprague
 Issue:
o 1. Is a joint tenancy severed when less than all of the joint tenants mortgage
their interest in the property
o 2. does such a mortgage survive the death of the mortgager as a lien on the
property?
 1. Depends on theory of mortgage
o title theory
 X (mortgagor), bank (morgagee) : simmons
 mortgaging: creates fee simple on condition subsequent
(condition=paying off mortgage). Like “as long as mortgage
payments made”
 this would sever joint tenancy: bc no unity of interest
 Today: even title theory states: don’t work this way
o But if continued the app. Sprague inherited tenancy in
common, so mortgage still exists on his portion of the
property
o Lien theory
 X retains Fee simple absolute
 Bank has a lien: no title transfer
 If you don’t pay: bank goes to court: auction off house, takes
their money off the top
 Conclusion: a joint tenancy is not severed when a joint tenant executes a mortgage on
his interest in the property, since the unity of title has been preserved
 2.
o So right of survivorship still there
o property right of John is gone on his death
 Therefore: mortgage doesn’t survive (this is on lien theory of
mortgage)
 Bc the lien was on an interest that no longer exists. Disappeared with
death. Mortgage disappears with it
 Simmons (the mortgager) has no interest which their mortgage
42
attaches
o P is now the sole owner of the property
Spiller v. Mackereth
 Facts
o P and D co-tenancy of warehouse
o When renter moved out: Spiller started using as a warhouse
o Mackereth: sent letter: either move out of half of space or pay rent
 Issue: is exclusive occupier liable to non-occupier other owners for exclusive
occupation?
 No: right to present possession shared with other co tenants to entire property
 Rule: in absence of an agreement to pay rent or an ouster of a cotenant, a cotenant in
possession is not liable to his cotenants for the value of his use and occupation of the
property
o 2 ways to show ouster
 1. Beginning of the running of the statute of limitation for adverse
possession
 2. Liability of an occupying cotenant for rent to other cotenants
 Exceptions
o 1. When exclusive occupier ousts co-tenants (or have agreement to pay):
occupier owes liability
 1. statute of limitations ouster: hold possession and then try to get
exclusivity of it by adverse possession: claim to absolute ownership
 an attempt by one cotenant to adversely possess the others:
 requires assertion of complete ownership:
 clear regarding self as sole owner
o denying existence of cotenant relationship
o show total denial of cotenancy
 retains for period of statute of limitations
 2. For Rental Value: to prove ouster
 rule: occupying cotenant refuses a demand of the other
cotenants to be allowed into use and enjoyment of the land,
regardless of a claim of absolute ownership
o there can be no denial of right to enter without a
demand or attempt for it
 1. Cotenant (nonpossessor) demands for us of the property
 2. Denied use of that place
 example: O says move shit over, I’m coming in. person already
there says no. easier to show than total denial
 here: sent letter saying move shit
 didn’t serve as demand, also said pay 50% rent
 if she said: get out or let me in: then entitled to renatl value of
half premises during exclusive occupation
 so there was no ouster here
 minority: her letter would be enough
Remedies when 1 cotenants rights violated by another’s
43



Partition: any cotenant could ask for it
o 1. Physical patrician (patrician in kind): physically divide up
o 2. Patrician by judicial sale: judicial auction: proceeds split up in
accordance with interests
 applied when…
 cotenants don’t get along
 when difficult to make fair division (1 part more valuable than
another)
 let market determine: then sale value can easily be split up
 problem: sentimental value: market wont give
o so try to physical patrician
o 1 section owner must reimburse others for more
valuable part
o owelty: payment for getting less valuable section of
property
o tenants by the entirety: not entitled to patrician unless spouces agree
o but tenants in common and joint tenants: individuals can request patrician
 statute: determine when patrician is appropriate
 common law: look for fairest and efficient results: toughest when they
point in different directions
o example: 1 tenant wants out, other 2 don’t
 2 that don’t want, split: or bid for it. This is frequently used
request for accounting: P is a cotenant claiming others owe something of value
o ex. mineral interest cotenancy: 1 person sells oil, and keeps the money
o other cotenant wants share: share in net value: not gross
 the person who digs up gold gets to take costs out
action for contribution: 1 cotenant paid: to benefit entire property: want
reimbursement
o when is indi entitled?
 1. If money on carrying charges: like mortgage, real estate taxes
 make payments or lose property
 cotenant who paid: gets reimbursement
 2. Improvements: build new room on a house
 expending cotenant gonna lose
 bc what one thinks it worth it others may not
 but if one person spent a lot to increase value: can get
patrician
o the value added gets made in sale: goes to the one who
made/paid for improvements
 3. Repairs: fix leeky roof
 middle ground: easier to prevail than improvements but
harder than carrying costs
o depends on how necessary repairs deemed
o if looks like carrying cost (necessary or lose value):
then will prevail
 notice: for repairs might make that shit.
 can agree about stuff: these just default rules
 if no agreement: balance efficiency and fairness
44
III.
LANDLORD-TENANT LAW
Parties can define right/liabilities by lease: property law fills gaps. Also may invalidate lease
provision for policy reason
Types of Tenancies
 1. Term of Years: estate that leasts for some fixed period of time: or for period
computable by formula that results in fixing calander dates for beginning and ending
o computable example: 1 ear from day man reaches moon: computable by
objective events
o attributes
 expires at end of period
 neither party must notify other of intent to terminate lease
 2. Periodic Tenancy: lease for a period of some fixed duration that continues for
succeeding periods until either landlord or tenant gives notice of termination
o common law:
 year to year tenancy: 6 month notice required
 month to month: 1 month notice
o if no notice: tenancy automatically renews self to be governed by original terms
(rental obligation continues: LL can sue for rent)
o if no fixed period given…
 example: “at annual rent of $12,000 paid month to month
 most juriscitions: this would count as periodic tenancy (not term
of years)
 period: the period is how the month is paid (so in example: month
to month) (majority)
 minority: the period would be the year
o if give notice: but notify that you’ll move out earlier date than allowed (like
notice of 5 months in year to year tenancy)
 majority: invalid for move out: but works as notice for earliest possible
move out (like after 6 moths)
 3. Tenancy at will: lasts as long as they both will tenancy to continue
o ends when 1 dies
Holdovers: tenant doesn’t move out after terms of years end
 LL has a choice:
o 1. Treat tenant as trespasser (evict)
 summary eviction: expedited process for LL only
 can recover damages for wrongful possession (fair marketvalue:
probably determined by rental during lease term)
o 2. Treat tenant as starting new tenancy: on same terms: in a periodic tenancy
 can make pre arrangement term: about rent increasing (but default, satays
the same)
 if was year long lease: goes year to year now
How to classify
1. licenses: later
2. easement: for quite limited purpose
3. lease
45
a. broader range of rights: more likely it’s lease
4. is it a conveyance in estate in land or contract?
a. Conveyance: landlord conveys present possession, retains future interest
(traditional view)
b. Contracts: instead or in addition to conveyance (modern trend)
Universal View: covenant in every lease: LL guarantee the legal right to present possession at
commencement of lease (there will be no legal obstacle to moving in)
 Example: tenant tries to move in. LL has already rented space to another person. LL liable.
English rule: implied covenant to make land physically available
 But do not extend the implied covenant beyond the day when the lessee’s term begins
 So tenant must protect self after that day
o Hypo: if tenant moves in, then adverse possessor comes in, tenant doesn’t pay bc
of that, tenant liable to LL
o LL obligation over the day land conveyed
 This is more like conveyance theory (give them present possession) then contract (they’re
paying for being allowed to possess)
 Policy
o Contract doctrine: whole point of making contract is moving in
o LL has better access to the facts (going to know what wrongdoer is doing (like a
holdover)
o Had better info to stop it
o Better legal remedies
 New tenant can only do something once gets right to present possession
 LL can start eviction earlier: once term up, can start suit: and has more
remedies available
o If takes lots of time: lots of costs on tenant
 Tenants have choice in these jurisdictions (if there is person there)
o 1. Can terminate lease and stop paying rent (LL not carried through with
obligation, tenant hasn’t received present possessory estate: so no obligation to
pay rent)
o 2. Keep lease going, move in when trespasser leaves, sue LL for breach of
covenant damages (measure by extra expenses tenant incurred bc unavailable
leased premises)
o 3. Tenant can keep possession, lease going, sue wrongdoer (act like American
rule jurisdiction)
American Rule: recognizes lessee’s legal right to possession, but implies no such duty upon the
lessor as against wrongdoers
 But can protect self by getting explicit term
 Policy
o If want protection: could insist on privision being included
o Tenant didn’t insist: no reason court should rewrite
o English rule would make it impossible for LL to lease out premises with tenant
on it: risk being liable for holdover
o LL not covenanted against wrongful act of another
Example: tenant moves in: there is another person there, X, just stays. Tough to new tenant
 American view; LL not responsible
46
 English rule: LL is responsible
Hannon v. Dusch
 Facts: when tenant supposed to move in, holdover there. No express provision. LL refused
to do anything.
 Issue: is there implied covenant?
 Accepts American rule: no duty: unless express covenant
Assignment v. Sublease
Ernst v. Condit
 Facts: Ernst leased to rogers. Rogers got replacement tenant: Conditt (D)
o Conditt didn’t pay rent.
 Issue: was Conditt a assignee (in which case rent due to Ernst) or a subleasor (Rogers only
one liable to Ernst)
 How to differentiate:
o Plain meaning with legal meaning holds
o Common law: if the instrument transferring the estate for the entire remainder of
the term: assignment. If less, then it’s a sublease
o Modern view: Cardinal Rule: ascertain the intentions of the parties
 Application
o Condit: this said sublease a bunch of times
o Court: parties have no right to definitively characterize relationship for court
(could have used terms carelessly; relevent but not determinative)
o Condit: Rogers still liable, he retained reversion and right to reentry: it’s a
sublease
o Court: Rogers remaining liable: doesn’t matter: that’s bc Privity of contract still
exists
 D took possession, paid P, remained in possession for term, bought
business (not retained by Rogers), he got assigned. No reserved right to
reenter or reversions. It was assignment. D is liable
Effects of assignment and subleases
47
Assignment: Privity of estate that used to exist between landlord and original tenant gone
 Privity of estate goes between LL and new tenant
 LL and original tenant: still have Privity of contract (as long as it was a lease (contract) to
begin with)
o Tenant bound by any promises tenant made in original lease
 Privity of contract between old tenant and new tenant: as long as promsies made
 Effect
o LL can sue new tenant based on Privity of estate (holding right to present
possession gives obligation to pay rent)
o LL can sue original tenant: based on Privity of contract (broke contract by money
not being paid
Sublease:
 Privity of estate and contract remains between LL and original tenant
 Then there is Privity of estate and Privity of contract between original tenant and new
tenant
 Effect
o LL can only sue original tenant
o Original tenant can then sue new tenant
Examples
 1. Landlord leases to T for 3 years at $1,000 for three years. After one year, T “subleases,
tranfers, and assigns to T1 for 1 year.” Neither T nor T1 pay rent to L
o T retaines reversion: bc only for 1 year
o Intent test: doesn’t work, refers to both
o But bc reversion: this is sublease
o LL rights
 LL can sue original tenant: yes: both Privity of estate cand K
 Can LL sue T1: NO: no Privity of estate or K
 But: if term “promise whereby T1 agreed to pay the rents reserved in the
head lease.
48
 Then third party beneficiary doctrine

 if T1 promises to pay rent that T was contracted to do, then L can
sue T1 under Privity of contract: bc term was to benefit L
o if no explicit agreement of T1 to pick up T’s rent
obligation: unlikely court would imply
 some places: by statue: L can evict T1
 effect on T’s rights: T not off the hook, still Privity between LL and T
 novation: agreement between T and LL: whereby T is off the
hook
o if this is case: LL can sue T1 through explicit agreement
 2. L to T: T promised to keep in good repairs and pay rent. T entire interest to T1 in
assignment: with explicit agreement to assume lease obligations. T1 to T2 assignment (no
explicit promise. T2 to T3 assignment
o L against T: can sue: still have Privity of contract
 Can get contribution from T3: Privity of estate runs?
o L against T1: Privity of estate still between L and T1 when T transferred to T1.
 When T1 transfers: Privity of estate gone: bc assignment shifts Privity of
estate to T2
 BUT: explicit promise by T1 to assume all responsibility: so can sue on
3rd party beneficiary theory
o L to T2
 Had Privity of estate between when T2 got land and when assigned to T3
 But then Privity of estate gone
 No Privity of contract: bc no explicit contract between L and T2
 So no way to sue
o L to T3
 Privity of estate: so can sue
 Can only have Privity of estate with one T
 LL: must have good reason to reject proposed assignment or sublease
o Must accept unless good reason not to (market value jump is not sufficient)
Default by Tenant
Berg v. Wiley
 Facts
o
 Issues
o
T: opened restaurant. Terms not to violate code. Told to fix in two weeks. Closed
down to fix. Locks changed once, changed back. When P not there, D changed
locks again
1. Was there abandonment?
49

Jury: found no. had sufficient evidence. So lockout can’t be excused by
absondonment
o 2. Was there error in finding reentry forcible and wrongful as matter of law?
 Basically: is self help okay?
 Common law rule: LL could exercise self help if (1) legally entitled to reposess premises
and (2) landlored exercised peaceable means
o Court: rests on 2nd element: even if LL had right: violated rule bc means not
peacible
 Court doesn’t like self help: just luck violence didn’t break out (and
tenant good snese that prevents violence): so any slef help is not peacible
means and anyway…
 Modern doctrine: self help repossession is never appropriate (even if think it’s
abaondened): still must go to court: tossed common law rule
o There is expedited process to kick holdovers out: that’s good enough
o Even if LL brings cops with him: same result
o Even if provision in contract saying self help okay: can’t contract away the
policy
After Tenant breaches and moves out
 Traditional rule: LL under no duty to mitigate damages caused by D (can wait around and
get full damges)
o Lease conveys a tenant an interest in the property which forecloses any control
by LL
o So doesn’t make sense for LL to concern self with abandonment
o But worry about implicit acceptance: if LL moves in to abandonment property:
probably wont have right to recovery
 Policy against modern
 Imposes too onerous obligation on LL; LL forced to enter
relationship he didn’t want; potential perpetual tenants
abandoning
o If LL try to relet: or move in self: worry about implicit acceptance (wouldn’t get
anything for breach). Ending tenancy
o Also: LL would lose opportunity to rent other properties
 Modern Rule: Landlord has duty to mitigate abandoning tenant’s damages
o Contract law: every non-breaching party has duty to mitigate damages from other
party’s breach (all jurisdictions have duty to mitigate)
o Only require reasonable efforts: not absolute duty
 Find and agree to objectively reasonable tenant (like don’t have to accept
poor credit)
 Treat the place as one of his stock
 Can recover costs involved: like through advertising
o Policy
 Contract rules
 Efficient use of land: reduces waste
 Agency theory: LL try to relet: acting on tenants behalf as his agent to assign property for
duration of lease
 Means Privity of contract between LL and T still exists (so can still go
after T if T1 defaults)
 If LL gets more from T1 than T: possibly liable to T, but courts won’t
apply
50

If market drop: and LL can’t get as much from T1: LL can recover
difference from T (bc T1 fulfilled part of contract, but not all of it)
o Some jurisdictions: works only if LL first gets tenants prior consent
 Can put it in lease term
o Some jurisdictions: LL must notify/make reasonable effort to notify he is acting
on tenants behalf (if tenant objects, then it’s tenants responsibility)
o Some jurisdictions: don’t need notification or consent: can act as agent as long as
the LL shows evidence that he is not retaing land but is acting as agent
 Restatement: don’t impose duty to mitigate. Encourages vandalism if LL must mitigate, so
don’t require it.
Hypo: T leaves and leaves note. LL looks for new tenant. LL can’t find based on best efforts. LL
suit against T for $1,400. Sues after 2 weeks
 LL: argue even if I find someone, they’ll be paying 1,200 less over the year (say 100 less
per month)
o Can only recover first month extra $100 dollars. After that, T default only for 1
month rent. LL hasn’t been hamred by failure to pay other 11 months. Anticiitory
breach (say left a note and didn’t pay for 1 month) not a thing. At this point, lease
considedered done
 If LL waits till lease tolled
o Some courts: LL fucked: gets zero
o Other courts: if market value has fallen, and LL tried to mitigate, would still lose
the $1200, can recover it
Sommer v. Kridwel
 Issue: is LL under duty to mitigate damages by making reasonable efforts to relet
apartment wrongfully vactated by tenant
 Adopt modern rule: LL must take reasonable efforts to seek to recover rents due to a
defaulting tenant
o If have other places: treat place like one of stock
o Abandoning tenant liable for price of reletting
o Burden: on the LL to show: bc better access to info
 Test for mitigation
o LL: personally or through agency, offered or showed the apt, or advertised it
o Tenant: can rebut: showing that he proffered suitable tenants who were rejected
o No standard formula: judged on facts
 But LL doesn’t need to accept less than fair market value
Duties of Land Lord
 Common law: Caveat Emptor: absent clause providing otherwise, tenant took property as
is,
o LL under no duty to make property good for T intended use
o Hypo: if include clause: that keep plugs good. T tells LL plugs don’t work. LL
says tough. T stops paying rent. LL sues for breach
 LL wins: LL breached promise, but obligations in leases are independent
of each other
 So this breach doesn’t excuse failure to pay rent. Both get
damages
 Breach by LL gives right to T to sue for damages/specific performance
but not to break lease or end duty to pay: obligations separate
51
Exceptions to independent obligations
 Physical Eviction:
o LL lets T move in, then kicks him out. T stops paying rent. LL sues: not liable:
Tenant was physically evicted. LL took conveyance back
 Take back conveyance=termination of lease
 Sessation of Privity of esate=sessation of T’s obligation
o T moves in. LL accidentally levels T’s apt. T mvoes out, stops paying rent. LL
sues. T wins, has been physically evicted
 Doesn’t matter if physical eviction comes from negligent or purposeful
conduct by LL
 Constructive eviction: if tenant has been constructively convicted: treat same as physical
eviction..
o 1. breach of covenant of quiet enjoyment. Implied in every lease (relying on
contract law to imply covenant, and creating exception for covenants being
independent)
 Results in termination of lease+no liability for T
 Example: pounding on T’s ceiling every night makes it impossible to
sleep. T’s premisis still available and in same condition. But interefered
so much that T is deprived of right to use and enjoy premises
 Elements (Landlord’s malfeasance): wrongful act by LL
 1. L’s act caused substantial interference with T’s ability to use
and enjoy the leased premises
 2. The interference amounts to a breach of the implied covenant
of quiet enjoyment
 3. Such a breach amounts to a constructive eviction
 4. T may vacate, provided T does so within a reasonable time
after the constructive eviction
 If don’t leave within reasonable time: don’t get to break lease
 But can sue for damages for breaching implied covenant of quiet
enjoyment
o 2. Elements of not by LL. Landlords nonfeasons
 1. L has a duty to act
 won’t flow from implied covenant of quiet enjoyment, bc doesn’t
require LL to do anything, just not do something
 2. L breached that duty by failing to act
 must tell the LL
 3. the breach caused substantial interference with T’s ability to use
and enjoy leased premises
 when constructive eviction begins: reasonable time after this
 4. the intereference amounts to a breach of the implied covenant of
quiet enjoyment
 5. Such breach amounts to a constructive eviction
 6. T may vacate, provided T does so within a reasonable time after the
constructive eviction
o sources of the duty
 1. lease covenants
 2. statute or administrative regulation (housing/building code)
 3. judge created, common law duties
 a. duty to disclose latent defects
o bc outside caveat emptor: T couldn’t know about it.
52
Duty to disclose, no duty to fix.
 b. duty to maintain common areas
o no authority for T; T lacks insentive (shared costs, hope
someone else will do it, free rider problem); liability
 c. duty to conduct repairs undertaken by LL carefully
o normal negligence problem. Reasonable standard of care
 d. duty to abstain from making fraudulent misrepresentations
about the condition of premises
o contract law: estoppel
 e. duty to abate immoral conduct and nuisances that affect leased
premises
o only some jurisdictions: if effect the leased premises
Reste Reality Corp v. Cooper
 facts: Water would flood the office space. LL promised to fix, but didn’t do it well. T
trying to claim constructive eviction. T moved out, LL suing for back rent
 Rule: Any act of the landlord or of anyone who acts under authority of the landlord, which
renders the premises substantially unsuitable for the purposes for which they are leased,
or which seriously interferes with the beneficial enjoyment of the premises is a breach of
the covenant of quiet enjoyment.
o Teanant cannot consent to defect that makes it unsuitable (by resigning, although
under a promise to fix)
 App: court didn’t site any of ways LL could have breached duty (3: b, c, d)
o Instead: even if tenant is relying on LL nonfeasons: can justify constructive
eviction defense. All the T needs to show is LL nonfeasance resulted in
substantial interference, resulting in breach of covenant of quiet enjoyment
(eliminated additional requirements of non-feasons)
 This eliminated two exra elements of nonfeasance (duty, and breach
thereof)
 This is minority: so still apply two extra elements
Hypo:
 Other tenants doing loud shit.
o NJ: (from Reste): just show normal elements of implied covenant
o Others: have to show additional duty and breach
 Difficult
 Minority of courts: duty to abate nuisances that affect least premises (but
hard to predict balancing of rights in nuisance even in these cases)
 Criminal activity.
o LL might have to give deadbolts and hire security guards.
o Only could leave if failure to maintain common areas
 If searching for declaratory judgment (don’t want to risk being wrong about if it’s a
constructive eviction): freezes reasonable time before leaving requirement. But if takes a
long time to decide, and you’re paying for other housing, will minimize value of relief
More reasons can pick up and leave
 Implied Warranty of Habitability: at time lease begins, premise must be habitable
o Habitable: all latent and patent defects in residential unit to essential aspects of
residents (also applies to duty to repair by def.)
 Essential: vital for use of premises for residential purposes
o Hilder v. St. Peter: breach of implied warranty of habitibailty by LL
 T repaired stuff herself, withheld rent to do it
53

Rule from case: when the LL breaches the implied warranty Habitability,
tenants can withhold rent, repair defects and deduct cost from rent
payments, seek rent already paid, and seek punitive damages in
appropriate cases
 This case: says for apply for all residential at least (only for
residential, not applied to commercial)
 That deliver and maintain premises that are safe, clean, and fit for
human habitation)
o Could argue only apply traditional property rules in rural
setting: once conveyance: LL done. Imply these rules in
urban context: bc tenants not able to make repairs
themselves
o Hypo: rent rural farm with house on it, it’s infested. Differentiate (urban v. rural;
farm and house v. just home; public health concerns; scarcity of housing
 Implied Covenant of Repair: LL has duty to repair for problems that arise during the
lease that make premise inhabitable
o Probably won’t work in commercial residents either (maybe get it to, usually not)
o But constructive eviction does apply.
 Constructive eviction won’t be so relevant in residential anymore: bc
habitability rules give T more rights/easier case.
 Some courts: regard local housing code as minimum level of habitability. So if break code,
per se breach of covenant
o Hilder cont: not rely completely on code: but if show breach, will probably win
 if can’t show breach, won’t automatically lose though
 test: in all courts: if alleged defect has an impacy on the safety or health
of the tenant
 some courts will even apply in amenities: like AC
 Remedies: lease creates contractual union: standard contract remedies
 1. Rescission: contract gone, detroy lease
o a. T must notify LL of breach and give reasonable time
to fix problem
 if fail to fix: T can leave and terminate lease
(like constructive eviction)
 2. Reformation: change terms of contract
o T can stay and stop paying rent unitl fixed
o Bc implied warrenty of habitability is covenant on LL
part that is llinked to T’s covenant to pay rent
o Different than constructive eviction: in that T doesn’t
have to leave (or else can only get damages later) as in
constructive eviction. In implied warrenty: can stay and
stop paying rent and get damages (even punitive ones)
 So remedies broader
 But if only minor breach: then have certain
amount of time to make up fraction of rent
withheld
 3. Damages: T stays and sues for damages (can get punitive)
 4. Repair: reduce cost from rent due. But must give LL notice
(this is really form of reformation)
o some courts: reject this: bc gotta go to court for damages
o LL had a duty. T tells him, LL doesn’t do it, LL should
54
have had to pay for fixing, so tenant just fixes and
charges LL
 calculation of damages under reformation remedy: options
o 1. Rent due = agreed rent minus: (fair value as warranted minus fair value as is)
 ex. agreed to pay 100 a month. Place worth 110 a month at code, at value
worth 90.
 100—(110—90)=80. Damages would be 20 (if had paid)
 easiest and most common
o 2. Rent due = agreed rent minus (agreed rent minus fair value as is)
 ex. agreed to pay 100 a month. Place worth 110 a month at code, at value
worth 90.
 100—(100—90)=90
 if already renting real cheap: shouldn’t get double benefit. But just
slightly less than rent due, so no incentive to LL to fix, especially closer
the actual rent is to actual value
o 3. Rent due = agreed rent minus (agreed rent times % of lost use as a result of
breach)
 ex. agreed to pay 100 a month. Place worth 110 a month at code, at value
worth 90.
 100—(100 x (18%): 82

o 4. Rent due = rent times (fair rental value after breach divided by the fair rental
value without the breach)
 ex. agreed to pay 100 a month. Place worth 110 a month at code, at value
worth 90.
 100 x (90/110): 81
 rejected bc too complicated
 Retaliatory Eviction Stautes
o Scope: What acts by T form the basis of the retaliatory eviction or related
protections:
 Typically; triggered by LL response to T report of inadequate conditions
to local housing authority or organization of housing union
o Application
 To eviction; termination of lease (in response to above, terminates month
to month lease); cutting off heat or air conditioning; etc
o Burden
 LL action within certain amount of time presumptively retaliatory:
burden on LL to prove
 After time period: burden on T
o Remedies
 Right to stay
 Sometimes damages
in
LL tort liability: same as tort law, except (modern trend): special duty for injured tenants or their
invitees
 Traditional: LL has few if any duties
o Latent defect disclosure rule: there is a duty to disclose latent defects that tenants
shouldn’t be expected to discover: only duty to disclose, not fix
o If defect is patent: then no duty
 Modern: if new duty breached (above): then liability
55
 Pheld Case: duty to maintain common areas only broad enough for physical defects
o No criminal assaults by third parties
o This probably majority
 But: Jackson case: LL have been forced to put in speedbumps
 If criminal activity by other tenant
o More connection by LL to 3rd party
o Courts split
 Factors
 Awareness of LL to past criminal conduct
 Difficulty to stop activity or remove tenant
Tenant duties
 T only has present possessory estate: duy not to commit waste
o Ex. cut down old trees for firewood: LL said wasting
 Impaired value of reversion to LL: voluntary/affirmative waste
 Common law: duty not to commit waste implied in every lease
o Reasoning: short term conveyance, doesn’t give tenant right to impair long term
value
o How to define duty: duty not to commit waste is breached if tenant makes “such
a change as to affect a vital and substantial portion of the premise: as would
change its characteristic appearance; the fundamental purpose of the erection; or
the uses contemplated, or a change of such a nature, as would affect the very
reality itself, extraordinary scope and effect, or unusual expenditure
 Hypo: Rainstorm puts whole in roof. T does nothing. Fucks whole place up
o T probably has better case. Bc failure to act instead of affirmative conduct
o For LL to win: has to show T violated a duty by fialing to act
 Duty to act: would be duty to repair
 Common law: tenants have duty to make ordinary repairs that
arise during lease hold
 Most courts: say duty includes this repair
 Clause in lease: if lease says: tenant responsible to make all necessary
repairs
 Others: repair and rebuild different, doesn’t go that far (amaco
case)
o Hypo: fire destroys house: still have to pay rent?
 Common law: had conveyance, you’re still the tenant, so must pay
 Greenfield Case: opposite
 1. Tenants rent buildings not land: if building destroyed, tenant
not deprived of bargain
 2. Lease more like contracts than conveyance in land
o doctrine of impossibility of performance applies:
impossible for LL to perform bc building gone, tenant no
longer has to fulfill promise
IV. NUISANCE
Comes from
56
1. judicial: can’t do this bc restricts use and enjoyment for others
2. administrative: zoning laws: restrict way to use
3. environmental laws
Trespass
 Funciton: to protect P’s right to exclusive possession
 elements
o 1. Defendant’s conduct caused
o 2.An infringement on the right to exclusive possession
o 3. Defendant acted intentionally (defandent knew or should have known
conduct result in entry) (common law intent, just to be engaged in
conduct) (like just knew placing barrels, not that trespassing)
 no need to show harm, damage to current use. Just on your property
 traditional: strict liability
 modern day: not strict liability: show D’s knowledge/intent
 doesn’t matter how much interference: except in damages calculation
 ex. horrible odors:
o traditionally; couldn’t be trespass if not physical invasion. But some cases;
simply bc can’t see it, doesn’t mean it’s not something entering your land
o but nuisance would probably be better claim
Morgan v. High Penn
 facts: claim that D emitted fumes. Impaired use and enjoyment, company didn’t
stop after being put on notice
 rule: private nuisance exists in a legal sense when one makes an imporper use of his
won property and in that way injures the land or some incorporeal right of ones’
neighbor
 rule oafter case: a person who intentionally creates or maintains a private nuisance
is liable for the resulting injury to others regardless of the degree or care or skill
exercised by him to avoid such injury (like strict liability, as long as activity was
intentional and aware of nuisance)
o Invasion of anothers interest intentional in the law of private nuisance
when the person whose conduct is in question as a basis for liability
acts for the purpose of causing it, or knows that it is resulting from his
conduct, or knows that it is substantially certain to result from his
conduct
 Intentionally creating/maintain nuisance liable regardless of
the degree of care or skill exercised to avoid the injury
o
Nuisance: to protect private use and enjoyment of land
 Must show substantial interference
o Nuisance per se: an act, occupation, or structure which is a nuisance at all
times under any curcumstances
o Nuisance per accidens (in fact): becomes a nuisance by reason of location
or the manner in which it is constructed, maintained, or operated
57
Public nuisance: unreasonable interference with a right common to the general public
 Circumstances of unreasonableness
o 1. Whether the conduct in question significantly interferes with public
health, safety, peace, comfort, or convenience
o 2. Whether the conduct is proscribed by statute or ordinance
o 3. Whether the conduct is of a continuing nature or has produced a
permanent or long-lasting effect
 underlying basis same as priave:
o 1. Substantial harm
o 2. Caused by intentional and unreasonable conduct
o 3. or conduct that is negligent, reckless, or abnormally dangerous
o also depends on weight of utility vs gravity
 Ex. If someone walking by on sidewalk and stench, can’t sue for private nuisance,
bc it’s public interference
 If nuisance violates a statute: probably per se nuisance
 Purpose: action for unreasonable interference with rights common to the general
public, such as interference with health, safety, peace, comfort, or convenience
 To bring suit: anyone can bring suit: but must show special injury, or special
damage, an injury or damage of a kind different from that suffered by other
members
o Modern: liberalized: abatement can be brought by official, specialy injured
indi, and person who ahs standing as representative of general public,
citizen in citizen’s action, or representative of a class
 Can still be private nuisance if interferes with a lot of owners, but in private only
owners could bring suit.
 Since public nuisance is about the public, anyone can sue, but usually only if the
person can show “special injury” (or special damage, or particular damage)
Private Nuisance
 Function: protect against unreasonable interference with the use and enjoyment of
land
 Elements
o 1. Substantial harm to a private property interest in land
 depreciation in value split:
 majority/modern: depreciation is exactly what nuisance is to
protect against
 common law: mere depreciation in value and apprehension
about future nuisance doesn’t meet substantial harm test
o 2. That was caused by
o 3. D’s unintentional or intentional liability-forming conduct
 unintentional private nuisance Liability: D is liable for an unintentional nuisance
if his or her act or omission interferes with the land use and enjoyment of the P’s
land and the D’s conduct is
o a. negligent*
o b. Reckless*
58
o c. or constitutes abnormally dangerous activity (this would be strict
liability case then)*
o *unreasonableness is basis of negligence or recklessness, so built into test
 Intentional Private Nuisance Liability:
o Elements: D liable if…
 1. His act or omission causes
 2. A substantial interference with the land use and enjoyment of
the P’s land
 3. The defendant’s conduct was intentional and
 intentional conduct: if outcome is intended or reasonably
certain outcome would occur
 tied to foreseeability
 4. The resulting interference was unreasonable (separate element
here, but built in above)
o Unreasonableness and intentional Nuisance: three separate tests
 1. The Threshold Test: (majority view): The harm caused by the
D crosses a threshold, above which the harm
 question: is level of harm above certain threshold (seems
same substantial question as in above test)
 2. Balancing test (torts 2nd restatement 826(1)-828): the gravity of
the harm outweighs the utility of the defendant’s conduct
o factors to determine gravity of harm
 1. Extent of harm
 2. Character of harm
 3. Social value of use invaded
 4. Suitability of use to locality
 5. Burden of P to avoid the harm
o factors to determine utility
 1. Social value of D’s use
 2. Suitability of use to property
 3. Practicality by D of avoiding harm
 trying to achieve efficient result by finding: cheapest cost
avoider
o if gravity outweighs utility, then the P is cheapest
cost avoider bc it will cost less for it to live with (or
avoid) the harm than it will for defendant to prevent
it (basically can get damages, easier than stopping
the harm)
o if utility outweighs gravity, then the D is cheapest
cost avoider because it will cost less for it to
compensate for (or prevet) the harm than for P to
bear or avoid the harm
 THIS EXPLANATION DOESN’T MAKE SENSE
 3. Alternative Restatement (826(b)): the harm caused by the
defendant is serious and the financial burden of compensating for
this and similar harm to others would not make the continuation of
59




the conduct not feasible
 factors
o ask if compensating this P and others like it would
drive D out of business
o if can afford to pay and operate: invasion not
reasonable
 purpose: retain efficient result: by allowing the more
expensive cost avoider (the D in this case) to continue
activity, but to do so in a fair way by forcing the D to
compensate P for the latter’s serious harm
 policy: might have high social utility (so wouldn’t be
unreasonable under 2): but also damages. Provides jobs, but
still ppl who don’t have jobs that are hurt by it. So
compensate as long as could still stay in business
 only remedy=damages: bc injunction would shut down the
important activity
hypo: D is planning to set up disposal site. Construction not yet begun. P wants
injunction to prevent it, alleging it will cause sharp decline in market value
o answer: depreciating market value alone probably not enough for private
nuisance action: must show another harm (like physical invasion)
 site not built yet: so no injury yet
 Defense: court should not assume P’s predictions are accurate
 Traditionally: courts wont speculate in anticipatory/preventative
nuisance action
 Imposing liability on speculation, potential fears, no proof
or amount calculation
 Modern: no flat prohibition: but a high stnadard
 Policy
o Not just speculation: can get experts, similar
circumstances
o If wait for landfill, could be irreproable damage
o Would cost everybody more to build it then shut it
down
Hypo 2: after landfill built and operating. P’s property decline by 30%
o D: we aren’t negligent/reckless and didn’t intend depreciation
o Question: is strict liability like trespass
o No: but intentional liability forming conduct
 If she can show they were reasonably certain that landfill would
substantially interfere: then liable
Per Se tests: break zoning law
o Zoned for single family homes
 Open industrial thing:
 Violation of zoning law is per se unreasonable
Opposite: comply with zoning law
o If zoned for industrial purpose: opening industrial plant, zoning would
probably override other factors
60
 Permit given to open industrial plant
o Compliance with regulatory scheme: not determinative but quite
persuasive
 Problem: regulatory scheme on large scale
 Might bc context where compliance results in unacceptable levels
of harm
 Strong evidence of reasonable but not conclusive
 Coming to the nuisance
o Common law: absolute defense
o Modern: Weighs heavily in favor of P to avoid the nuisance
 Relevent to all three unreasonable tests
 But other factors might still matter
 So doesn’t completely bar, but is relevent factor
Boomer v. Atlantic Cements
 Facts: cement company operating in city. Manufacturer was wroth more than the
amount of damages. Neighborhood got damages, but no injunctive relief
 Court: gave permanent damages: barred future suit. Injunction until amount paid.
 Actually gave option: shut down now or continue and pay
damages: each cheaper in some cases
o Dissent: licensing permanent wrong. No incentive to alleviate it
 This costs much less than permanent or even temporary injunction
 Argument against: cheaper for them to just pay than to do research
and find cleaner methods
 Counter: still risk this: EPA can still sue
o Old rule: if damages more than $100, then injunctive relief is given
 Doesn’t balance any interests
 Only way to avoid injunction was finding no damages (or $99)
damages
 Permanent damages: precludes future suits, but future residents get reduced
market value
 This seems to be shift from 1. Threshold test to 2. The alternative balancing test
o Modern approach: another factor in balancing equities
 1. Ability for court to fashion injunction: practicality of writing out
injunction and monitoring it
 here: afraid to fuck up science of injunctive relief
 2. Toleration of air pollution v. benefit of industry
 best left for legislatures/admin agencies if want to regulate
 affect on parks etc, agencies can sue
o if paluted more or differently: P might have future claim
V.
PRIVATE LAND USE RESTRICTIONS3
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Affirmative Easement: a right to use someone else’s land for a particular purpose
 exceeding beyond scope: remedy: injunction to stop going beyond the scope
and/or damages for reduction in value as a result of excessive use
Profit a prendre: (affirmative easement plus) a right to take things off someone else’s
land that are considered to be a part of that land
 if exceed interest given: sir charging the profit: extending it beyond the scope
o remedy: forfeiture: bc more permanent than exceeding easement
Negative Easement: an agreement that prohibits one person from engaging in what
would otherwise be lawful conduct on his or her own land
 like I won’t dig whole
Affirmative real covenant: a promise by one person to do something on his or her own
land that he or she would not otherwise be required to do
Negative real covenant: a promise not to do something on one’s own land that otherwise
would have been permitted
 like promising not to open store
 very close to negative easement
o common law different
o 3rd restatement says eliminate difference: treat everything as real covenant
 distinguishing between Negative Easement and Negative real covenant
o 1. Mannor of creation and language used to create it
 negative easement: words like grant, convey,: property based
 negative real covenant: words like promise, contract: contract
based
o 2. Subject matter of restriction being agreed to
 traditionally: negative easement only for narrow range of
restrictions (blocking access to light, interfering with flow of
artificial stream, interfering with support)—more like property
changes: beyond these: couldn’t be negative easement
 American courts more flexible: still property based changes
 Ex. wont devote to commercial: then couldn’t be negative
easement
 Today: treat them as congruent, call them whatever you want
Equitable Servitude: a real covenant (affirmative or negative) that is specifically
enforced by a court in equity
 Asking for equitable relief (like injunction) rather than damages, then P will try to
enforce. Otherwise same as affirmative or negative covenant
o But in those cases: asking for damages
62
Benefits v. Burdens
 the benefit of a nonpossessory interest in land is the right to use land owned or
possessed by another
 the burden of a nonpossessory interest in land is the corresponding restriction on
the owner or possessor’s use
Appurtenant v. In Gross Servitudes
 a benefit is appurtenant if it relates to and is intended to benefit a particular
parcel of land
o enhances land value
 a benefit is in gross if it is meant to benefit an individual, not in connection with
his or her ownership or possession of any particular parcel of land
o enhances personal interest
 rule: presume easement is appurtenant if the conveyance is silent on it
o running: if create a appurtenant affirmative easement, benefit of
affirmative easement runs with the dominant estate (gives right to whoever
own the parcel): usually transferable. Passes with dominant estate unless
states to the contrary
Dominant v. Servient Estates
 the dominant estate (or tenement) is the land benefited by an appurtenant
nonpossessory interest (usually an easement)
 the servient estate (or tenement) is the land burdened by a nonpossessory interest
(usually an easement)
running with the land: if the burden (compliance) or benefit (right to enforce the
obligation) runs with the land (if successors can enforce/are bound by it
Considerations in choosing between possessory or nonpossessory interests
 manner of enforceability
 transferability
 durability
 marketability
o don’t want interests to disappear (bc then bank wont accept loans on it etc)
o long fee determanible things aren’t as easy to market (bank worried
interest will disappear on them). Less objectionable for negative real
covenant: bank’s interest won’t dissapear
Hypo: A lives next to B, never wants commercial shit next door. How to do this?
 B affords a negative covenant to A by promising he will never devote land for
commercial purposes
o Set it up so burden runs
 B conveys land in fee simple absolute to A. A reconveys to B of fee simple
determinable to B with reversion on condition subsequent (opening store)
o But if A wants successors (so needs it to be transferable) to be able to
enforce, can’t sell reversion:
63
o So do it through negative real covenant
A. Easements
Easements are interests in real property
 Must comply with SoF: in writing and signed by party to be bound thereby
 If oral agreements to create easement: creates revocable license instead (not
regarded as real property interest)
1.
Methods of Creation
Holbrook v. Taylor
 Facts: P had been allowed to use road, during construction, and then at a certain point
not allowed. Had actual approval before
 Issue: if road had been used by claim of right or by permission?
 Rule: since had actual approval, then allowed to keep using it, license turns into
easement
o Established easement by estoppel


X has lot C in FSA
X has license to road and to build path (licenses are revocable):
 Not valid easement bc easemetns are real property interest. SoF
problem: if attempting to create affirmative easement, but don’t put it
in writing, then it’s a license
 Licenses are so precarious, not regarded as real property interest
 License Revocation Means
o Expressly: in original document creating the license,
like if x happens, license gone
o Unilateral: by licensor: can just end it, absent any
other consideration
o By operation of law if…
 1. Licensor dies
 2. Licensor’s conduct is inconsistent with
continuation of the license (like writing a
letter or blocking or something)
 3. Conveyance of the servient estate by the
licensor (same situation as death)
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
4. Attempted conveyance of the license by the
licensee (tries to sell license alone or as part of
FSA of dominant estate)
o Can convert the license into easement by building path
 Around SoF: through promissory estoppel
 Once X makes improvements: he’d win
depends on state
 minority: license revocable at pleasure of licensor: if licensee spends money, he does
so at his own risk: so P prevails (bc when conveyed, license gone)
 Holbrok: licensor can’t revoke once licesnsee has erected improvements at
considerable expense that were part of licnese agreements: X wins
o Once make improvements, license turns to easement.
o X wins by estoppel
 Court cited: law recognizes one may acquire a license if, with the
knowledge of licensor, licensee makes improvements
 Original revocable license becomes irrevocable by estoppel: X’s
reasonable reliance converts a license into an affirmative easement
(becomes an easement)
o P got burden of affirmative easement, bc transferred from O

Depends on court
o Could imply by necessity (if only way in and out)
o Or like #3: O did nothing, watched him build
 But harder argument: bc it’s tough to say reasonable reliance on
nothing
 Some courts: O watched, it counts
 Others: no explicit promise, so no reasonable reliance
Irrevocable License by Part performance: A revocable license held by B over A’s land can
become irrevocable by part performance if B’s performance provides evidence that…
1. an intent to convey to B an appurtenant easement
2. that A would not have the right to revoke
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theory: B’s performance of oral contract substitutes for the written document that
normally provides evidence that the parties reached an agreement to grant easement
 example: B gets (oral contract) deal from A to build road. B only has a license, but
when starts building, it becomes irrevocable. Serves the function of SoF for evidence
o court has to believe: both parties intended to convey: will only enforce the
deal the parties agreed on. (won’t speculate on what agreement would be)
o only plausible explanation for B to build road is specifically for irrevocable
use: enforce the deal
Irrevocable Licenses by Estoppel: a revocable license held by B over A’s land can become
irrevocable by estoppel if…
1. B believed that A had granted to B an irrevocable easement
2. B relied on that belief to her detriment (like spending money to maintain road)
3. B’s reliance was reasonable; and
4. A should have foreseen B’s reliance
 Theory: nto fair to B to allow A to revoke under these circumstances
Willard v. First Church of Christ
 Facts: 2 lots, original owner sold hers to owner of the other (on condition church
could keep using it as a parking lot). Original owner (of the other lot) sold both to P
without clause
 Common law rule: one can not reserve an interest in property to a stranger to the title
 Today: look at intent of grantor, conflicts with old rule, get rid of it
 new rule: restatement 2.6: a grantor may in a deed to real property, reserve an interest
in that property for third parties
 Willard: tries to argue new rule shouldn’t apply bc he relied on old rule
o But no evidence he did, didn’t read the deed.
o Apply balancing test if old rule applies: policy and equity
 No reliance, no problem of ancient title
 Got lower price bc of reservation
 So Willard would get more than he paid for if don’t apply
 Balance in favor of grantor’s intent
Reservation: creates some new servitude which did not exist before as an independent
interest
Exception: provision that excludes from the grant some preexisting servitude on the land
Regrant: an easement reserved by the grantor was not a reservation but a regrant of an
easement by grantee to grantor
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Original common law: no: there was no easement before the grant, bc O owned lot C,
so didn’t have easement to cross, bc easement is right to use someone elses land
o So prior to deal, there could be no easement
o Can’t reserve an easement: bc the easement did not exist at time of grant
But courts: want to preserve intent: regrant theory: O conveyed FSA to X, X
simultaneously reconvays the easement across back to O
o Easement reserved is not a reservation, but a regrant
SoF problem: must be signed by party bound thereby
o Only grantor signed the deed, regranter never did. BUT: when X accepted the
deed, allowed O’s signature to count as though it was his
NO: common law did not allow reservation in third party
o But policy basis: with feudal notions of conveyance in land: that’s gone, so
get rid of it
And not their intent: how to make it work?
o 1. Estoppel doctrine: X accepted deed, including Y’s interest, must accept
whole thing, basically meets all parts of estoppel
o 2. Purported reservation created trust in favor of Y: X is trustee, must allow Y
to do so, otherwise abusing fiduciary duty
o 3. Willard Case: just implement the intent as written
 abolished rule retroactively: but still fair because
1. McGuin (original owner of lot in question) first conveys to church in FSA
o church then conveys to Peterson (owner of lot 2), with reservation to self
 under regrant theory, allowed for a while now
67
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
2. MGuin conveys to perterson, Peterson conveys to church express grant of
easement
3. McGuin to Peterson in Fee Simple Determinabe (so possibility of reverter, if don’t
allow use of land of church)
o then Peterson could only convey to Willard the fee simple determinable
o but ppl don’t like doing this shit
Creation of Implied Easements
 Easement by Implication (Easement by prior use): creating an implied easement
by previous use
o Requirements
 1. Intitial unity of ownership of alleged dominant and servient
estates
 2. Apparent and continuous quasi-easement in existence at the time
of severance of the alleged dominant and servient estates
 3. Easement following severance was necessary to full enjoyment of
the alleged dominant estate
o function: carry out the intent of the parties to the transaction that resulted in
severance of the alleged dominant and servient estates
Van Sandt v. Royster
 facts: all land was owned as one estate, build sewage drain under P’s land (new
owner), then conveyed various times without conditions
 trial court: there was appurtenant easement between the properties
o problem: easement can’t exist through own land: bc it’s right to use someone
else’s land
 but often: use part of one’s land for benefit of another: qausi easement
 benefitting part=quasi dominant
 part utilized=quasi servient
o rule: when owner sells quasi dominant tenement, easement corresponding to
quasi easement is vested in grantee, provided that quasi easement is of an
apparent, continuous, and necessary character
o rule part 2: when owner sells the quasi servient part, implied reservation of an
easement in favor of the conveyor
 majority of courts: easement by implied reservation in favor of the grantor, the
easement must be one of strict necessity
o restatement: has a bunch of factors
 P’s property was bought with knowledge of the sewer, knew it was for benefit of D’s
estate, was necessary for comfortable use and enjotment
o Not strictly necessary, but alternative takes disproportionate effot/expsnce: so
easement can still be found by necessity
68
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

B argues Implied easement based on prior use
prior and continuous use
Necessary for enjoyment
o Equity concern here: unjust for buyer to pay for inaccessible land
o Efficiency concern: waste of land otherwise
o Most important factor: carrying out the intent of parties
 Nothing in deed, but wouldn’t buy land without it
 So must have been intent
 Necessity shows intent: but can be counteracted or other evidence of
intent
 Restatement factors
o Whether the claimant is the conveyor or the
conveyee
o The terms
o The consideration
o If claim made against simultaneous conveyee
o Extent of necessity of the easement or the profit
to the claimant
o Whether reciprocal benefits result to conveyor
and conveyee
o Manner the land used prior
o Extent to which the manner of prior use was
know to the parties
69
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A argues his intent was to preserve the quasi easement: otherwise wouldn’t make
conveyance
But this isn’t easement by implied grant, it’s easement by implied reservation
(grantee got less than fee simple rather than more (above))
Jurisdictional split: when implied reservation rather than implied grant
o Traditional English common law: implied grant fine, implied reservation
not allowed
 Policy: difference is knowledge, A knows the information, therefore
not excuse not to put in grant (B might not know all of the elements)
 Won’t imply it, bc A was in position to put it in
 When ambigious deed, construe against the grantor
o US courts: no complete bar for reservation of implied easement based on
prior use. But is more difficult
 Reserving Implied easement by prior use: requires strict necessity
o However: Van Sandt: necessity is just one way to
show intent: if other evidence shows intent to create
implied interest sufficiently clear, won’t require strict
necessity
 Other factors
 1. Evidence of quasi easement before
severance: frequency and exclusivity
of it: more the stronger intent
 2. Evidence of necessity: how
necessary was right of way at time of
severance (more necessary more
intent)
 balancing: one can make up for another
 Where as implied grant of easement by prior use: just
reasonable necessity
Default: purchaser of servient estates takes subject to easement
o So if easement by implied reservation based on prior use: then C stuck
But C might not know he was getting less than what appeared on deed
o When C looks through deed, won’t find easement
o C relies in good faith to written deed, thinks he’s getting unburdened estate
Issue: does C qualify as a Bona Fide Purchaser? Then wont be stuck with it
o Fairness: if C didn’t know or have a way to know, paying more than what
he’s getting. Not fair C is burdened by agreement he never knew about
Bona Fide Purchaser: can’t have notice: any of these 3 possibilities
o 1. Record Notice: if in record: C should know, so not bona fide purchaser
o 2. Actual Notice: like if B tells him there’s an easement
70
o 3. Constructive or inquiry notice: not bona fide purchaser if should have
inquired
 even if not clear, some cases you should ask questions
 or if there’s path well traveled, probably should know
Creation of Implied Easement II
 Easement by Necessity
o Requirements
 1. Initial unity of ownership of the alleged dominant and servient
estates
 2. Easement is necessary now to full enjoyment of the alleged
dominant estate
 3. Easement following severance was necessary to full enjoyment of
the alleged dominant estate
o function: promote public policy that land not be inaccessible, because
inaccessible land is unproductive, inefficient
 Othen v. Royster:
o Facts: original, owner had large plot. Sold in pieces. First sold 100 acre plot.
But fails requirement 3, don’t know if it’s necessary since other ways out.
o Burden falls on person claiming dominant estate
o So when sold second lot (perhaps making it necessary), can’t create an
implied easement: bc then no unity of ownership
 Can’t create implied easement over someone else’s land (reason of
unity of ownership)
o Othen lost: bc failed to show he couldn’t have gotten out another way. And
tehn fails on other ways because no unity of ownership
 Easement by necessity could override party’s intent
o But when overriding intent: need higher necessity
o Some courts: in easement by necessity: require strict necessity
 In Oethen: seem to apply level of necessity to #3 requirement as well, logically just to
#2 necessity
 Implied easement by necessity continues only as long as is necessary
Necessity Hierarchy
 Implied Grant (easiest): prior use implied easement
 Implied reservation: prior use implied easement
 Implied grant: easement by necessity
 Implied reservation (hardest): easement by necessity


Hard to show necessity again: same requirement. But maybe with balancing (not
strict necessity even though his estate was the reserved one): could show it
Also hard to show there was quasi easement before: testimony of previous owner
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#3. Fail on requirement #3 of either theory: bc not necessary following severance: bc
had a license
#4: same problem: wasn’t necessary. And carry out intent of the parties, specifically
said revocable license. That was intent, so can override other requirements
go throught the elements but still check for underlying function: intent or public
policy
o #4: inconsistent with intent of parties
yes: otherwise couldn’t get to land. Easement by necessity despite intent
o maybe C must pay for easement: rewriting the deed so compensate for getting
more than bargain
72
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By Implication: by previous use
o Hard to say scope includes trucks: bc trucks weren’t used at the time of
easement: couldn’t intend to use it that way
o Counter: don’t take literally: reasonable way in and out: that’s what truck is
Under Oathen: by necessity
o Good for productive use: probably an easier case
Depending on theory: implied easement by necessity would end when no longer
necessary
By prior use: subsequent events have no effect
Prescriptive Easement: adverse possession of a use right: (not a possessory right)
 Elements
o 1. Actual use
o 2. Adverse/hostile use
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o
o
o
o

majority: absence of permission/consent by true owner. Even if
owner is using the easement, can still be hostile
 implicit consent: knowledge of the use by owner without
stopping=implicit consent: so not adverse
 minority: concurrent use gives rise to presumption of hostility, which
the servient estate owner must disprove (owner must have know about
the use and failed to take action)
3. Open and notorious use
4. Exclusivity: requires excusive use of the easement, not of the property as a
whole
 effect: lack of excusive use may affect interpretation of the hostility
requirement (if there is concurrent use, court may find implicit
consent, so no hostility)
 Page v. Bloom: means different thing than in adverse possession:
5. Continuous and uninterrupted: statutory length requirement: SoF
 requires reasonable use: in way normal person would use easement
 restatement view: to disrupt continuity, owner of servient estate must
effectivel disrupt the adverse use (adverse use stops or owner gets
cour ordered decree): otherwise, use is merely interrupted: which is
not effective)
6. Scope: defined by manner of use that first gave rise to the prescriptive
easement and what servient owner might reasonably expect to lose by failing
to interrupt the adverse use (e.g. horses may not include care)
 use of prescriptive are not confined to the actual uses made
during the prescriptive period, the uses made of a prescriptive
easement must be consistent with the general kind of use by
which the easement was created and with what the servient
owner might reasonably expect to lose by failing to interrupt
the adverse use
assume a prescriptive easement: what’s the scope?
o Original: walking
o Car: rescription
o Pick up: maybe slight rescription
o Heavy machinery: probably beyond scope
74
Negative Easements: the right of the dominant owner to stop the servient owner from doing
something on the servient owner’s land
 Presumption of appurtenance applies
 England
o Only four subjects that can have negative easement
 1. Flow of light
 2. Interfering with air flow
 3. Removing support for building
 4. Interfering with flow of artificial stream
 American
o More expansive view: including scenic easement (SF bay)
o Sun for solar power
 If there’s also a zoning rule on same topic: stricter rule applies
 Implied negative easement: courts very reluctant to find by necessity or by previous
use
o hard to find intent or necessity
 Prescriptive Negative Easement: US courts will not recognize negative easement by
prescription
o Not doing something can’t be adverse to owner. Not an infringement on their
rights. Not open and notorious. Not promoting the policy of more productive
use
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A prevails: has valid negative easement
Effect of sale: none: because it was appurtenant, ran with the land:

In England: doesn’t meat one of four categories. In America, might allow scenic
easement

Must argue easement by necessity or previous use. But bull shit, bc otherwise
negative easement on everything you can see.

B: same as above. Otherwise leaving land blank would always create this stuff. US
courts wont recognize negative easement by prescription
2.
Transfer, Scope, and Effect
Attributes of Appurtenant and In Gross Easement
 Appurtenant Easement
o The burden of the easement passes automatically to the purchaser of the
servient estate (provided he has notice)
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o The benefit of the easement passes automatically to the purchaser of the
dominant estate
In Gross (EIG): (no such thing in England, just get revocable license)
o The burden of the easement passes automatically to the purchaser of the
dominant estate
o By definition, there is no dominant estate
o Assignability
 Traditional: only commercial EIG were assignable
 Modern (restatement/majority): all EIG are assignable, assuming the
parties to the creation of the EIG intended it be assignable. So no flat
rule, look at particular one
o Divisibility
 Traditional: yes: but must be exercised as “one stock” (each holder
has a veto power over attempts to use by other holders)
 Modern view: yes, if creating instrument says so or if the EIG is
exclusive
 And not gonna be gone if unreasonable new burden on
servient estate: bc that will not be in intent of parites
 Basically: presume you need universal agreement, but can
contract around it
Miller v. Lutheran Conference and Camp Ass’c
 Facts: Miller: got boating and fishing rights by grant from corp. Got bathing rights be
prescriptive easement. Gave ¼ share to brother. Brother tried to sell to Lutheran
 Issue: was assignment of ¼ rights validly assigned to D
 Rule: rights cannot be assigned without consent of all the parties, act as one
o So assignment to Lutheran not valid
 Court looked at language: words from company: “his heirs and assigns”
o So allowed assignability of easement in gross
 So question became: was it divisible? Could ¼ interest be further divided
 Court: NO: can’t subdivide without Frank’s estate
 Rule from case: co-owners of easement in gross have veto power over each other in
further division of easement in gross: so attempted assignment failed. (seems to be
for assignment too
77
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Yes: appurtenant: runs with land. Has the burden

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Depends: if conveyance in gross: doesn’t run with the land
But presume appurtenant: but can be different if could show intent otherwise
If purchase dominant estate: get benefit. If purchase servient, get burden

In gross

Does burden of easement in gross attach to the servient estate? Yes
o Burden of easement in gross attaches to servient estate
 Must have notice: otherwise could qualify as bna fide pruchase

England: NO: no such thing as EIG: when try to create: just get revocable license.
When attempt to sell it, disappears
78
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o Policy: reduces land value of servient estate without increasing value of any
other estate
America: can assing: but depends on factors: like intent, commercial or not, etc
1. Commercial nature: boating and fishing could be commercial, can more likely
transfer
o some courts: benefits of commercial easement in gross=assignable. Personal
enjoyment=not alienable
2. Intent of parties: hard to know intent above: could be personal thing, not meant to
be assigned
lake. Why not?

Must have Intent to be alienable: rather than intend just for benefit of F. recreational
usually not intended to be assignable

H has profit a prendre in gross. Bc not about dominant land but his ability to do so


Can be made assignable: look at intent, in commercial, etc
Profit a prendre in gross can be made assignmable: see intent

scope question: seems lumber company has exceeded the scope of proft in gross that
was given to H
o look to written doc. If ambiguous, look to circumstances
if intent: only to cut a few trees: then I is sir charging the profit: extending beyond
the scope
o remedy: lose right to it: forfeiture
can’t make owner whole
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not forfeiture: bc not as permenant. Injunction to stop excessive use and/or damages for
reduction in value
Brown v. Voss
 facts: Brown owns lot B and C: Voss owns lot A. Lot B has appurtenant dominant estate
in easement for access over lot A. Lot C doesn’t. want to use road to access single family
home on boarder of two plots
 rule: easement appurtenant to one parcel of land can’t extend to other parcels owned by
him, whether adjoining or distinct tracks, to which easement is not appurtenant
o easement by express grant: construe to give effect to intention of parties
o any extension of that is misuse: but just bc there was misuse, doesn’t mean
injunctive relief
o it’s equitable rule: can shape injunction to facts: for injunction: need actual and
substantial injury sustained by the person seeking injunction
 but they excepted the rule here
o bc granting injunction, hurts Brown a lot. Denying it, doesn’t hurt Voss at all (bc
no increased traffic or anything, same use)
dissent
 this is a misuse: it’s a trespass, and a continuing one. Difficult to shape damages, so
make it an injunction. Doesn’t matter that no moreburden. It’s responsibility on
Brown, they should have looked it up, balancing equity help innocent party. And
Voss could have gotten more money if allowed C as well
 and could get easement by necessity over existing easement if need by

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Extent
o Of who and the purpose. Like for passanger cars,
o If want/don’t want utility lines
Duration: probably gotta make it appurtenant, but this is default rule
o Use it as a selling point. Make it determinable: if they fuck up, it’s gone
Specify where: ID everything
Could add duty to maintain
Scope: especially after Brown Case
80
If X buys lot D: can he connect to get there too?
 Brown: Yes
 Restatement: No
 Traditional: can only use right of way to get to land identified as dominant estate
o If it’s physically possible to get from part that’s dominant estate to non
dominant, have to make it impossible: because otherwise nothing will stop
you
o Brown case: said if degree of damage minimal: just allow it
 Can put a clause to get around B: to get to C and no other land
Owner of Dominant changing plot rule: restatement
 Holder of easement is entitled to use in manner that is reasonable necessary
for the convenient enjoyment of the servitude
 Manner, frequency, and intensity of use may change over time to take
advantage of developments in tech, and to accommodate normal
development of the dominant estate or enterprise benefited by the servitude.
 Unless authorized by the terms of the servitude, the holder is not entitled to
cause unreasonable damage to the servient estate or interfere unreasonably
with its enjoyment
But for Prescriptive easement: not not as broad as if created by grant, implication, or
necessity
 Not condined to actual use during prescriptive period: but consistant with
general kind of use by which easement created and what the servient owner
might reasonably expect to lose by failing to interrupt adverse use
Holder of easement of way: can’t install above/undergropunt utilities: not foreseeable
Location of easement: once fixed, can’t change by servient owner without permission of
dominant
 But restatement: servient owner can change location at his expense if…
o Change does not significantly lessen the utility of the easement
o Does not increase the burdens on the owner of the easement in its use and
enjoyment
o Or frustrate the purpose for which the easement was created
3.
Termination
Presault v. US
 Facts: RR turned to hiking rail by rails to trails act. But RR stopped being a RR 10
years earlier
 Issue: saying conversion amounted to a taking without just compensation. Want value
of property which gov took from them by approving this use
 3 points here
o 1. Creation: what interest did RR originally have
 if fee simple: P loses, can do whatever you want with it
 language: looks like FSA
 court: despite normal interpretation: call it an easement: bc Vermont
81
cases: conveyance to RR vests RR only as large estate as is needed
for RR purposes: easement (other courts would say only apply this
when deed ambiguous
o 2. Intent: move ppl and stuff around for commercial purposes. Right of way
but not for path
 200 ppl an hour walking: different than what bargained for
 default rule: scope of easement is what could reasonably be foreseen
at time easement was created: couldn’t foresee this: when ICC
approved for hiking, it was unauthorized use, so it’s a taking
o 3. Termination
 even assuming scope wide enough: is it still in existence
 Abandonment: mere non use of easement is not abandonment. Also
requires act that unequivocally manifests intent to abandon easement
 Removed rails and switches. Didn’t tear up bride, but why
would they? Would just cost more
 Fees paid to RR for driveway crossing? That was just cheaper than
going to court before
 2 easements
o right to not get sued
o right to cross
 abandonment? Non use + clear intent to abandon: WDI said they wouldn’t use
anymore
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 no: when land merged, the easement disappears
 X: by prescription
Means of Terminating an Easement
 Explicitly: the original grant document specifies a termination date or by subsequent
relies
 By abandonment
o Nonuse is not enough (in some jurisdictions, nonuse for entire period of SoL
is enough)
o There must be nonuse + acts by the owner of the dominant estate that
“unequivocally manifest” an intention to abandon
 By estoppel
 By merger
 By prescription
B. Covenants and Servitudes
Covenants: Land use contracts
 came about bc could have very few negative easements in England
 ex. A and B make deal not to use land for commercial purposes
o do these run with land for owners of dominant and servient? We’ll see
Promises that relate to land use: thus called negative real covenants
 like negative easement, but broader range of possibilities
And promises that require someone to do something on their land: affirmative real
covenants
 not an easement: bc easements allow someone else to do something on your
land. This is you required to do something on your land
three main questions
 trying to enforce against successor of promisor ( does burden run?)
 trying to enforce on behalf of original promisee (does benefit run?
 Is relief legal or equitable?
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Four combinations possible when sale
 1. when does burden run at law? (82)
 2. When does burden run at equity? (85)
 When does benefit run at law?
 When does benefit run in equity?
1.
Creation and Effect
1. Covenants Running of the burden at Law:
 Requirements:
o 1. Valid original contract between original promisor (X) and original
promisee (O) under normal contract law rules
o 2. Notice by successor (Y) to original promisor
 a. actual notice
 like in deed: convey subject to agreement
 copy attached to deed
 b. constructive (record) notice
 record notice, ask someone, etc
o 3. X’s promise must touch and concern the land
o 4. Intent that the burden run to successors to the original promisor
 explicit reference is best way
 but court will accept other ways to show intent
 nature of parites
 subject matter of covenant
 look at extrinsic evidence
o 5. Privity of estate
 a. horizontal Privity
 b. vertical Privity
 common law rule: burden of real covenant didn’t run if benefit was in gross
(unrelated to ownership in land by original promisee)
o applied to all real covenants at law and equity
o another way to say: burden doesn’t run if benefit doesn’t touch and concern
the land
o rationale: burdens land without benefiting another piece: net decrease
 minority: allow enforcement of these
84
The Horizontal Privity Requirement for Running of the Burden at Law (so between O
and X)
 1. Traditional English view: landlord tenant relationship (or tenurial relationship:
ex. like life estate conveyance with a reversion) between original promisor and
original promisee, nothing else
 2. Massachusetts Test
o a. tenurial relationship or
o b. simultaneously existing property interests by original promisor and original
promisee in the same land (apart from the covenant)
 examples: any conveyance of present possessory estate with reversion
(LL/Tenant; life estate)
 some other shared interest: like share land/beach: whatever they
shared: easement and fee simple interest, whatever
o reasoning: productive use, don’t want to restrict it: lowers productivity
 3. First Restatement (majority)
o a. Massachusetts test or
o b. the covenant accompanied the transfer of a property interest (other than the
covenant) between original promisor and original promisee (i.e.
grantor/grantee relationship at time of execution of covenant)
 4. Clark/3d Restatement: no horizontal Privity required
 broad or narrow construing horizontal Privity: depends if court likes real covenants or
not
o if benefits society: expansive view: can run
o if detrimental to society: try to eliminate: say don’t run with the land, limit
ways they can
 can fit through strawperson:
85
o example: neighboring lots: won’t have grantor/grantee relationship: so won’t
be able to do this: so sell both lots to strawperson: create covenant in a grant
back
Vertical Privity Requirement for Running of the Burden at Law (So between X and Y)
 1. 1st restatement: the successor to the original promisor must hold:
o a. the same estate as the original promisor or
 like whole property interest given
o b. an estate of the same duration as the estate held by the original promisor
 2. 3d restatement
o a. for negative covenants: vertical Privity requirement gone
o b. affirmative covenants: the successor to the original promisor must:
 i. hold the same estate as original promisor
 ii. Have acquired the original promisor’s land by adverse possession
or
 iii. Be a tenant of the original promisor, provided it is more
reasonable for the tenant than the LL to perform the covenant
o 3d restatement for horizontal Privity not exam
 purpose: don’t want to stick ppl with obligation they never agreed to.

For X to enforce against P: need to meet running of the burden
o Horizontal Privity
o Vertical Privity
o Intent
o Touch and concern
o Notice
o Valid original contract
Tulk v. Moxhay (English case)
 Covenant: Tulk sold land Moxhay’s predecsor (Elms). Tulk stayed as neighbor.
Included was promise to maintain garden for predecessor. Then Moxhay trying to
build there
 Can’t be an easement: bc not in negative categories of England
o and can’t be an affirmative easement: bc not P allowed to use land, it was D
required to keep garden/not build there
 So Tulk has to show running of the burden at law
o Valid original contract: check
o Notice: check
o Touch and convern
o Intent
o Privity
 Horizontal: problem: only LL/Tenant counts as horizontal Privity
86


Moxhay can’t be sued: bc no horizontal Privity between Tulk
and Elms (original buyer)
 Vertical Privity: not a problem (same estate)
 So fails at law: bc no horizontal privity
But won: at equity: bc wanted injunction
o Can enforce against Moxhay same as he could against Elms
o Bc Moxhey got land for cheaper based on servitude, other result unfair (bc
then Elms could flip land and regrant to self, wouldn’t have burden)
2. Covenant Running of the Burden in Equity
 Requirements
o 1. Valid original contract
o 2. Notice
o 3. Touch and concern (same tests as at law: but looser in equity)
o 4. Intent
 English courts: limited equitable servitude for negative covenants
o Bc affirmative real covenants not enforceable in England: except against
original parties (bc normal contract law)
o So must frame as negative real covenant to enforce
 American Courts: extended to affirmative as well as negative covenants
o 3d Restatement: wants to abolish distinction between at law and equity: no
courts follow yet
 but easier to enforce covenant servitude in equity than in law
 traditional rule: running of the burden of a real covenant does not run if the benefit is
in gross
87
Touch and concern (same tests as at law: but looser in equity)
o Another way: is legal interest in land more or less valuable bc of covenant:
 Enhancement of value of dominant estate, and decline in value of
servient estate
 But circular:
o tests
 Clark Test: whether the covenant affects the legal relations of the
parties to the covenant as owners of particular parcels of land and not
merely as members of the community in general (i.e. does the
covenant relate to land or is it merely personal obligation)
 Bigelow test: whether the promisor’s legal interest in the land is
rendered less valuable by the promisor’s performance and the
promisee’s legal interest in the land is rendered more valuable by the
promisor’s performance (inhancment of dominant estate, decline in
value of servient estate)
 But this is circulate
 1st question: burden of covenant runs with the land if it
touches and concerns the land
 touches and concerns: if it affects promisor’s legal relations as
owner of land (bigelow test)
 affects legal relations: only if it runs with the land (1st
question)
 Reasonable Person Test: whether a reasonable person would regard
the covenant as intimately bound up with the land, hampering the
promisor and aiding the promisee as landowners
 Neponsit Test: whether the covenant in purpose and effect
substantially alters the legal rights which otherwise would flow from
owners of the land involved
o Rationale
 Limit number of covenants that burden land after sale
 Efficiency: limit number of covenants that decrease land value: so
covenant will only run if it touches and concerns: only touches and
concerns if increases value to promisee’s lot at least as great is
decrease value in promisors lot (tests don’t really make sure of this):
but at least some benefit
 Fairness: increase likelihood successors are aware of obligations that
they get if it relates to the land: so ppl know if they buy the land,
they’ll be stuck with it. More likely if it’s intimately bound up with
land
o Affirmative Covenants that traditionally met the touch and concern test
 1. Promises to repair fences on boundary lines
 2. Promises to repair driveways or roads
 3. Promises to maintain railroad crossings
 4. Promises to build or maintain party walls
 5. Certain promises to pay money
 those which money will be used to benefit the brudend low
itself (all jurisdictions allow):
88

some related property interest held by the owner of the
burdened lot: a lien

Yes: broke covenant. Breach of contract

Running of the burden at law
Neponsit Property Owners v. Emigrant Industrial Savings Banks
 Facts: deed to D’s predecessor said pay $4 for maintenance of sewers, roads etc. The
covenant expressly states that it shall run with the land. P never owned the land in
question
 Issue: does this meet touch and concern requirement?
 Rule: Privity exists in substance if not in form for an association that is comprised of
property owners to advance their common interest
 Explanation: enjoyed benefit of the maintenance, including land not conveyed in titel
by the payment. Distinction between this benefit and touching or concerning is not
distinction of substance, just form. P acting as agent of property owners and advance
their interests. Therefore members of property owners association have right to
enforce the covenant
 Equity can choose substance over form: where requirements not technically met
89

Yes: before: X could do anything on land. Now, X can’t build store: restricts land use




This is flipped picture: O promised to build dock to X
O sells to P: does P have to build dock?
England: NO: no running of burden of affirmative covenants
American: depends on Court
o NY: burden of affirmative covenant does not touch and concern land,
therefore cannot run
 Rational: burden on new ppl, detrimental impact on value of burdened
land. If breach, how do you enforce? Like what counts as building a
dock.
o Other courts: Limit what’s accepted: for touch and concern to allow
running of burden of affirmative covenant
 1. Promise to repair fences on boundary lines
 2. Promises to repair driveways or roads
 3. Promises to maintain railroad crossings
 4. Promises to build or maintain party (joint) walls
 5. Certain Promises to pay money
90




like action to foreclose a lean: foreclosing lean is technically
an equitable relief
must show these are in one of the 5 affirmative covenants that runs
o certain agreements to pay money: going to maintain driveway and docks
o seems to touch and concern
 enhancing value of property
 C benefirts from the payment too
 In these cases: Nepansit like: NY would recognize
Rule: Promise to pay money (like annual maintenance fee): will touch and concern
(even in NY) if money being used to benefit the burdened lot itself or some related
property interest (like an easement on road, dock, etc)
o But amount of money at stake must be reasonable
o Benefit can’t be out of proportion compared to cost
Duration will also effect willingness of court to find touch and concern: if self –
expiring, more likely to say touch and concern
Invoking Equity: If unsure as to law or equity, want to get in equity: bc looser touch and
concern standard: so make it look like a lien
 Example of what to include to make it in equity: lien: “Every lot owner has the
responsibility of keeping the front yard mowed. In the event an owner fails to comply
with this responsibility, O has the right to enter the lot and mow the lawn. The cost of
such action will be added to the annual maintenance fee and will be secured by a lien
on the lot owner’s property
o Since a lien, it’s in equity. Since in equity, easier to get touch and concern
Running of the burden: liability of X after transfer: Is X still liable for payments? A bit
like LL tenant Privity shit
 Courts more willing to enforce affirmative real covenant against original promisor
(they can do the thing) than negative real covenant (bc then they have to prevent the
thing)
Can original Promisee (benefit side) continue to enforce after selling the benefited land
 General rule: (1st Restatmenet): No
 Exception: yes, if the original promisee is under a legal obligation to ensure
performance of the promise by the original promisor
 Example
o X sells lot 1 and lot 2 to A and Y. In deed to Y, X promises Y that X will
guarantee that A performs her promise to restrict lot to single family home
91
Theories for enforcement by someone other than the original promisee
1. Property law theory # 1: running of the benefit theory
a. Law and equity the same here
2. Property law theory # 2: reciprocal negative easement theory (McClain Case)
3. Contract Law theory: third party beneficiary theory (Snow v. Bandan)
RUNNING OF THE BENEFIT THEORY

Requirements: same for law and equity
o 1. Valid original Contract
o 2. Touch and Concern
o 3. Intent
 either explicit or from circumstances
o 4. Horizontal Privity: No
o 5. Vertical Privity: Yes?
 Majority: Successor to original promisee: need only have succeeded
in some interest once held by original promisee
 Ex. like bought property: has the fee simple
 Minority: don’t require any vertical Privity: person just 3rd party
beneficiary
Requirements
Running of Burden
at law
Running of the
burden in equity
Valid original
Contract
Notice
Yes
Yes
Yes
Yes
Running of the
benefit both at law
and in equity
Yes
Not an issue: bc if
you’re plaintiff you
know about it
92
Touch and concern
Yes
Yes
Intent
Yes
Yes
Privity (horizontal)
Yes (except 3d
restatement
Yes (except for
negative covenants
under 3d
restatement
No
Privity (vertical)
2.
no
Yes: but courts
more relaxed when
question is benefit
running
Yes: that benefit
should run to
successors
No
Yes?: but easier or
not requirement at
all
Termination
93


intent: explicit that benefit should run: so intent there
o but can find by extraneous circumstance
o like lots of lots have same condition: so everyone understood the whole
community is single family residence homes
o alternative explanation?
 Only to help O sell, not to benefit everyone
 But usually: assume this condition will be to benefit all
Touch and concern: yes: won’t be annoyed by industrial shit
Privity
o Horizontal: not necessary (1st restatement and accepted
Vertical Privity: yes: got that piece from O


When L-1 enforcing against A: make it easy: bc A made the promise
When L-1 enforcing against B: burden and benefit must run, make it run


94
then Neponsit case.
 Weaker: because no explicit reference to benefit
On question of vertical Privity?
 Stronger: actual covneyence to P, rather than in Neponsit as association
o 1. Either jurisdiction didn’t require vertical Privity
o 2. There was vertical Privity between lot owners and neponsit, and
association acting as agent

relaxed standard: and store could depreciate value of park, add smog or
something

yes, unless deed restricted. Have all the elements
THEORY #2: Property law theory # 2: reciprocal negative easement theory (McClain
Case): (should really be called reciprocal real covenant theory)
 Basis: enforcement of implied promise by the developer to impose similar
restriction’s on all lots as they are sold, including lots still owned by the developer at
the time of the sale of the allegedly benefited lot
 Must start with a common owner
 Elements:
o 1. Implied promise
o 2. By original unitary owner
o 3. And subsequent owner has notice
 How do we imply promise?
o From: common plan or scheme of restrictions
95
Majority: imply negative restrictions from general plan
 Ex. sell 9/10 lots with burden, implies lot owners
benefited/burdened by reciprocal promise
 Some courts (cali): only way to imply promise is express reference
to plan in deeds themselves
Every lot doesn’t need to be restricted: but more restricted the better (sunborn:
only 60/100)
Notice: if B doesn’t have notice, then bona fide purchaser: so nto bound
o McClean: were even told they were not bound, but still counted as notice
 Even if searched deed wouldn’t find notice
o Constructive notice: see other shit
o Inquiry notice: would notice no commercial use in subdividsion: should
have put them on notice: may be restriction on all lots
Massachusetts: don’t have this: bc reciprocal negative easement must match
SoF: implied ones don’t satisfy: so this theory doesn’t apply




Sanborn v. McClean
 Facts: sold 86 lots without residential restrictions. Other lots did have
restrictions (some sold with restrictions first). Title of unrestricted lot
passed to D. P sued to stop D from building gas station
 Rule: A reciprocal negative easement is attached to all lands sold in a
common developer scheme, and even though a restriction is outside of the
direct chain of title, subsequent buyers will be deemed to have constructive
notice because of their duty to check the title neighboring lots
 App: lots sold with restricitons in deed show common development plan. So
remaining land became subject to a reciprocal negative easement, so owner
cannot do anything forbiedden to the owner of the lot sold. Runs with landenforceable if have actual or constructive notice: bc on notice by nature of
neighborhood-under duty to inquire
o Character of surrounding neighborhood can put you on notice. To
negative easements. Builder bound by easements in record of
neighbors
Another way to look at it…
96

Now this looks like theory 1: running with the burden analysis
o Bc although L-1 made the promise: implied it in other land of O
o So just have to run through that analysis
97



B: there’s no covenant on his lot: never been a covenant
o So can’t use running of benefit theory
So use reciprocal negative easement theory (should really be called
reciprocal real covenant theory)
How is B stuck?
o When O sold lots 1 and 2 to L1 and L2: put residence use restricitons
in each of those deeds. O made explicit promise to L1, induced
purchase. That creates a covenant over the rest of O’s land


Toward better case: 100% lots sold have scheme
But: only 2 lots with restriction: hard to say that’s scheme

Stronger: bc 9/10 lots restricted, instead of 60%
98
of Sanborn?
 No: B not stuck bc no common plan when he bought the land. So O couldn’t
be bound by one to pass it on to B. Don’t allow common plans to arise
retroactively. Negative real easements never retroactive

No: B not stuck with common plan, so can’t enforce it against someone else.
Common plan is reciprocal. B not a beneficiary, outside of scope, cant enforce

No: in Mass: reciprocal negative easement is real property interest, must
satisfy SoF. So must be written in covenant, won’t imply it
3. CONTRACT LAW THEORY: THIRD PARTY BENEFICIARY THEORY
 Requirements
o All landowners seeking enforcement need to show is that when the
original promisor and the original promisee executed the covenant,
they intended to benefit not only original promisee, but also the
owners of the land now owned by the parties seeking enforcement
 Where do you get intent?:
o Express or
o infer intention by common scheme: imposed the burden on each lot
for benefit of other lots
 Need intent (through scheme/plan) of O and subsequent
purchaser when the lot is sold
 Intent at time of earlier sale not relevant to 3rd party
beneficiary
 So this is focusing on subsequent intent. Reciprocal
negative easement focusing on prior intent. Running of
the burden just has its checklist
 Minority: third party beneficiary limited to those that can trace title to
original promisee at some point in time
o This adds the vertrical Privity requirement: (like L1/L2 would have)
o But if a creditor beneficiary: (wasn’t just given right, but gave
consideration for it): can enforce

99
Snow v. Van Dam
 Facts: P: owners of summer homes. D: owner of land which used to be
unsuitable for building on when neighborhood divided. Now icecream stand
there. All lots sold with private house restrictions. New conveyance to D with
language of all restrictions go with it
 Holding: since restriction part of scheme: it was appurtenant
o Don’t need restriction on every lot
o Normally can’t create restricting in favor of land owner by stranger,
however, earlier purchaser scan enforce against latter pursuant to
scheme
o Relaxed Privity requirement in order to find common scheme of
restrictions

L4-10: on running of benefit theory
o Successors to original promisee
o When got lots: they purchased benefit of real covenant
o Intent? From scheme. No express statement: scheme shows intent to
benefit all, so appurtenant to every other lot: reciprocal kind of thing

No: bc equitable easement or restriction cannot be created in land owned by
a stranger
o Bc they got their land first: can’t attach it in running theory (they are
strangers when O sold lot 3)
100


Yes: reciprocal negative easement theory. Same situation as Sanburn v.
McClain. But this is Mass, so that doesn’t work.
But: court: Third Party Beneficiary Theory Earlier purchaser can enforce
in pursuant to scheme of restrictions. Earlier and later purchasers within
area covered by scheme acquire an interest in the restriction that the
common vendor cannot release them
o Had intent when sold lot 3 of common scheme : L1 and L2 are 3rd
party beneficiaries

Better case after all lots sold: 10 lots with scheme: show intent. All that you
have is intent when O sold lot 3 to A, but stronger scheme claim when 10 lots
have restriction


Majority: Yes: this is just express intent: so Sally is 3rd Party beneficiary
Minority: third party beneficiary limited to those that can trace title to
original promisee at some point in time
o This adds the vertical Privity requirement: (like L1/L2 would have)
o Sally doesn’t have vertical Privity, never bought land from original
promisee (O)
Donee and Creditor Beneficiaries
 A donee beneficiary gives nothing of value to the original promisee in
return for being able to enforce against original promisor
 A creditor beneficiary gives some consideration to the original promisee in
return for the right to enforce against the original promisor
o So in minority that requires vertical Privity: allow sally to enforce if
she ahs given some consideration, not just donee beneficiary
101
Breakdown of Theories for Enforcement by Someone other than the Original
Promisee
 1. Running of the Benefit Theory
o Based on intent of original promisor and promisee to attach benefit to
land still owned by promisee at time of execution of original covenant
so that subsequent owners of that land may enforce
o Available only to lot owners whose lots were first sold by the
developer after she imposed the covenant on the burdened (the D’s)
lot
 so enforcement by later sold owners (P’s sold after burden
assigned) against later earlier sold owners (D’s are earlier
sold)
 bc land retained by owner gets benefit: then that passes
to the P’s who enforce
 2. Reciprocal Negative Easement Theory
o Bases on enforcement of developer’s implied promise (to restrict lots
still owned by the developer at the time he sold lot to P) against
subsequent owner of one of those implicitly burdened lots
o Available only to lot owners whose lots were first sold by the
developer before she imposed the covenant on the burdened (the D’s)
lot
 so enforcement by earlier sold owners (P’s are sold first)
against later sold owners (D’s are later sold)
 bc land retained by owner burdened by scheme
(implied promise to enforce scheme on rest) and then
burden sold with new owners)
 3. Third Party Beneficiary Theory
o Based on intent of original promisor and promisee at time burdened
lot was first sold to allow the owner of the allegedly benefited lot (P’s
lot) to enforce against the burdened lot
o Available to lot owners whose lots were first sold by the developer
either before or after she imposed the covenant
 Either: bc burden meant to help everyone else’s land
2. Termination
Grounds for Terminating Real Covenants and Equitable Servitudes
1. Explicit (document creating covenant specifies a termination date)
a. Doc can make time limit. Or ppl can release covenant by vote
2. Changed circumstance
a. rule
i. covenants remain enforceable unless character of the
neighborhood have been changed
ii. and the purpose of restrictions have been thwarted
102
3.
4.
5.
6.
b. as long as original purpose of covenants can still be accomplished and
they will benefit area: the covenants stand even though the property
has greater value if used for other purposes
c. other rules
i. 1. Only end covenant (applying doctrine of changed
circumstance) if all the lots circumstances are changed
ii. 2. Changes are within the subdivision (not just next door like in
question)
Abandonment
a. Owners of abandoned estate already abandoned right to enforce
b. Requirements
i. Existing violations
ii. So wide spread
iii. That continuing enforcement is no long viable
iv. Because existing violations have already frustrated the
purpose of the covenant
Waiver (or acquiescence)
a. If lot owners acquiesce to other violations and therefore have no basis
for enforcing now when someone else tries to do what’s already done
b. But can argue degree: small day care v. huge firm
Estoppel
a. Reliance: ppl should have foreseen indi reliance on other commercial
enterprises to think could build one, so can’t preculude it
Prescription/expiration of statute of limitations
a. Breach for so long without complaind: SoL runs for adverse
possession of breach
Western Land Co. v. Truskolaski
 Facts: covenant for single family dwelling, since 1941 covenant, substantial
changes in neighborhood (significant commercial development in area), and
sporadic violation of restriction over years
 Issue: had single family character been affected so purpose of it was
thwarted, rendering it unenforceable?
 Rule: restrictive covenants are still enforceable unless the objects and
purposes of the restrictions have been thwarted.
 Holding: covenants still had value: not sufficient evidence the purpose of
covenant thwarted.
o Despite more valuable property if commercial, still substantial
benefits. Ordinance/zoning change could not override the private
restrictions.
o Sporadic violations didn’t show consensus to abandon/waive
restriction
103

Yes: B argue changed circumstance: covenants now obsolete
o But unlikely to win:
o Rule:
 covenants like this remain enforceable unless residential
character of the neighborhood have been changed
 and the purpose of restrictions have been thwarted
 as long as original purpose of covenants can still be
accomplished and they will benefit area: the covenants
stand even though the property has greater value if
used for other purposes
o other rules
 1. Only end covenant (applying doctrine of changed
circumstance) if all the lots circumstances are changed
 2. Changes must be within the subdivision (not just next door
like in question)
104

No: bc then devalue next lot over. And where do you stop: draw the line at edge
of subdivision


Cost/Benefit: make court refuse
NY: Rict v. Watt: not a question of balancing equities, nor does it matter that P is
only one refusing to get rid of covenant
o Other courts might allow:
o Mass Stat: restrict remedies to owners of dominsant estate when changed
circumstance

Argue not fair he can’t while others can
VI. PUBLIC LAND USE RESTRICTIONS
Three Questions
When can gov force sale?
Are they taking or regulating?
Are there times when say they’re regulating but really taking?
A. Eminent Domain
By reverse implication:
 5th amendment: takings clause: “No person… shall be … deprived of life liberty, or
property, without due process of law; nor shall private property be taken for public
use, without just compensation
o applies to federal gov
o implied eminent domain
 (states say explicitly)
 14th amendment: “No state shall … deprive any person of life, liberty, or property
without due process of law; nor deny to any person within its jurisdiction the equal
protection of laws
105
o so this incorporates 5th amendment: due process of deprivation of property=
need for just compensation
o applicable to states
Limits on Takings
 Economic and practical limitations
 Political limits
 Legal Limits (Kelo)
Kelo v. City of New London
 facts: development plan for city of new London, to create jobs, increase revenues.
Wants to enforce eminent domain to acquire remaining parcels. Was not gonna open
up condemned land to public, and lessees weren’t gonna be common careers
 issue: does this count as valid public use under federal and state constitutions?
o Test
 1. That the takings of the particular properties at issue were
“reasonably necessary to achieve the city’s intended public use”
 2. That the takings were for “reasonably foreseeable needs”
o passed: public use: kind of counts as public purpose
 Stevens Majority
o Public use: like police station
o Private use: hotels by private owner: transfer from oen private owner to
another
o This plan is middle ground
 It is condemnation for public use, and not a pretext for bestowing
benefit on private class
o Depends on broad or narrow interpretation of public use
 Broad: advantages public (economic benefit): this was adopted view
 Bermin v. Parker
o Condemn to rehabilitate deteriorating property
o Public use: includes efforts by gov for physical,
aesthetic, monetary, and spiritual well being of people
 Midcif Case
o Okay to condemn and redistribute land holdings
o Judicial review of public benefit is very deferential to
state legislature
o so what wouldn’t be okay? If take from one person to
give to another, but if legislature says redistribution
for more equality, that’s fine
 Narrow: actual use by public (like a park): not limited to this
 dissent: O’Connor: impose heightened standard
 Kennedy: Concurrance: taking should not survive the public use test if there is a clear
showing that its purpose is to favor particular private party, with only incidental or
pretextual public benefits
Reactions to Kelo by Legislators
106




Procedural changes: require public hearings, notify/negotiate owners
Political: local vote, supermajority, state approval before local taking
Constitutional changes: stated public purpose; limit purposes; etc
Congress: hasn’t adopted any of these
Ends v. Means Based Tests
 Kilo Case: ends based approach
o Highly differential for condemnation: as long as not taking and just giving to
a friend
o Foreclosure okay as long as goal is appropriate one
 Means based test: not accepted by court
o Assuming valid goal: is eminent domain only way to achieve
o If no: then preclude gov from eminent domain
B. Police Power Regulation
States can regulate private property under police power
 To protect public health, safety, morals, and general welfare
 So in order to regulate: must have appropriate police power objective
o And must use means reasonably related to that goal
Village of Euclid v. Ambler Realty Co.
 Facts: precluded ppl in Cleveland from using for multi-residential uses
 Court: this was proper use of policy power: restricting by use designation
 Trying to preven nuisance: to protect public health and safety
 Reasonable connection: appropriate means of achieving
Courts are very deferential on this
C. Physical and Regulatory Takings
107
1.
Inverse Condemnation Remedies
Normal Condemnation Procedure
1. Attempt a negotiation
2. If fails: condemning authority files petition to court
3. Followed by notice to all persons with interested property in question
4. Trial held
a. Gov must establish authority (some jurisdictions, taking must be necessary)
b. Court can give authority to enter and inspect
c. Court may require gov make a deposit
i. Jury trial sometimes, US doesn’t need onw
ii. Jury will determine just compensation
iii. Issues of public use and necessity decided by court
5. gov pays compensation plus interest
Inverse Condemnation action
 when statute has regulated your property so much it’s a taking
 court: could invalidate regulation to not include regulated property
 compensation? Damage for past restriction or permanent decline in value
o this is inverse condemnation action: damage from gov (as D) for regulatory
takings. Now takee is P
o constitutionally required: if gov taken: must compensate
108
2.
Physical Takings by Regulation
Larreto Case
 statute: requires leasers to allow access to a cable company if tenants wanted access
to cable: would have to run wiring and put box on roof
 S.C.: putting box on roof was a taking
o Bc regulation required physicaly occupation of land: so can do reverse
condemnation
o Regulation took so much out of FSA that was tantamount to physical
expropriation: which is taking: so can do inverse condemnation
 Took 3 parts out of FSA
o 1. Right to exclude: said cable company had right to go on land
o 2. Right to use: can’t put anything on roof where company has box
o 3. Right to dispose: can’t sell property where cable company put stuff
 size of property taken doesn’t matter
 REGULATION THAT REUSLTS IN PERMANENT PHYSICAL OCCUPATION
OF REGULATED PROPERTY OWNER’S LAND IS A TAKING
3.
Takings Based on Economic Impact
Hadacheck Case
 Statute: prohibited activities in certain parts of LA (heavy industry in residential
area). P owned brick yard, when began, nobody around, ppl moved around him.
Land so damaged if couldn’t use as brickyard, it was worthless
 Issue: is this takings?
 Holding: no: it’s a nuisance. Since it’s a nuisance, owner didn’t have right to
operate brickyard to begin with. So not taking any right from him. Stick already
gone from bundle. Regulation just codified what neighbors already could do
o Coming to nuisance? Don’t allow ppl who get there first to override
public interest in safe use
 Regulation that doesn’t further limit property owner’s rights, then not a taking
 REGULATION OF NUISANCE LIKE USE IS NOT A TAKING
Pennsylvania Coal v. Mahon
 Facts: PA coal owned large plot in FSA. Sold surface rights to Mahon (his
predecessor assumed risk of subsidence and waived claims for damages) but
espressly reserved rights to mine coal underneath.
 Statute: Kohler Act: prohibited companies in PA from mining in way that cause
subsidence of homes and surfaces near properties.
 Result: if coal company complied: lose any productive use in land
 Rule: WHILE PROPERTY MAY BE REGULATED TO CERTAIN EXTENT, IF
REGULATION GOES TOO FAR, IT WILL BE RECOGNIZED AS A TAKING
o Putting line on police power for first time: must compensate for some
regulations
 Factors to Consider
o 1. Physical invasion: Larreto: not here
109
o 2. Economic impact of regulation: diminution in value
 dimmunation in value of property
 limitation on some value that must yield to police power: but implied
limitation has its limits, or else contracts and due process clauses
gone.
 Consider extent of dimunation in value to consider if reaches limit
 WHEN DIMINUTION REACHES CERTAIN POINT:
THEN MUST USE EMINENT DOMAIN: AKA
EXCESSIVE ECONOMIC IMPACT—THEN MUST BE
COMPENSATED (at least for 100% diminution)
 How much is too much?
o Case by case basis:
o Here: too far: bc 100% of value (sold FSA, only
retained mining under land, now that whole thing is
gone)
 Reasoning: sincei physical appropriation/destruction is taking:
making it impossible to mine coal: tantamount to physical
taking
BRANDEIS DISSENT
 This is like Hadacheck: nuisance like use: subsidence of surface could result in
injury: nuisance like use regulation per se not taking
o Doesn’t matter about economic impact: not taking away any right
o Restriction on use doesn’t become inappropriate as a means because it
deprives the owner of the only use of which the property can be profitably put
 Response to factors: if going to apply dimmunaiton test: look at reduction in value in
terms of whole property: whole property rule: surface remains valuable, so fine
o Holmes response: should focus on individual owners right, not whole
property
 And equity issue: Mahon paid less bc assumed risk, now getting
more. If Mahon gets more bc dangerous, Coal should get
compensated (bc sold for less)
Reciprocity of advantage: if regulated property owner, whose property has decreased in
value, als derives benefit from that regulation that mitigates the negative economic impact:
then compensation might not be required
 But if property the only one detrimented, better argument for taking
 Ex. zoning ordinance for single family residence: residents harmed: but also benefited
(you cant put up factory, but neither can your neighbor
 But in PA coal: coal co gets no benefit, but unilaterally harmed. So no reciprocity to
push back on non-takings side. Brandeis: this isn’t relevant bc nuisance analysis
Keystone Coal
 Facts: virtually the same as PA coal. But upheld statute/no taking
 Court: statute designed to stop nuisance like use: so per se not a taking: Hadacheck
o Then: even if not nuisance: distinguishable from PA coal. Didn’t deny all
economically vilable use of coal company property: basically didn’t go as far
as in PA coal
110



Distinguishable: bc there were still pockets of coal they could get out without
breaking regulation.
P argument wanted to look at each pocket as separate interest, so 100% loss of some
pockets.
Court: adopt whole parcel rule: IF YOU CAN STILL USE WHOLE PARCEL AS
ECONOMICALLY VIABLE (CAN TAKE OUT SOME POCKETS OF COAL AT
PROFIT) THEN NOT A TAKINGS
o Rejects looking at interest in divisible parts: denominator problem
o Coal now coulding get to, part of entire coal interest. This essentially adopted
whole parcel rule and nuisance rule from Brandeis Dissent of PA coal
Penn Central Transportation Company v. City of New York
 Facts: Penn Central: owns Grand Central Station. Put on historic landmark list, so
need approval before they can do anything. Submit idea to build office tower on top,
rejected. They have air rights, which they’re allowed to give to another one of their
properties
 Issue: was rejection of development plans a taking?
 Established three part test
o 1. ECONOMIC IMPACT OF REGULATION
o 2. INTERFERENCE WITH DIRECT INVESTMENT BACKED
EXPECTAITON
 greater the difference between what you thought you would do to
what you can do now, more toward taking
o 3. CHARACTER OF THE ACTION
 physical occupation question: if permanent: then per se taking
 temporary occupation: push toward taking
 to stop harmful use: push toward not taking (if to extent of nuisance,
per se)
 Argument of P 1: like PA coal: took their air rights by legislation
o Court: other plans commission might accept, can transfer air rights, can sell
air rights,
 Also: part of whole parcel: included existing terminal and right to use
it: can still make profit from existing terminal
 Court wont sever air space: as long as you can still continue to make a
profit on existing terminal: incorrect to say no value in property after
regulation (application of whole parcel rule)
 Court wont divide up parts: focus on character of the action
and nature/extent of the interference with parcel as whole.
Brandies dissent
o Shifts the focus of analysis of economic impact: from what government has
taken away to what owner has left
 As long as what you have left allows you to make reasonable return
on investment: you’re fine. Doesn’t matter what you lost as long as
you have that left
 How much you need is unclear: but as long as you make profit, that’s
good enough
 Argument of P 2: this is very opposite of Hadacheck: nuisance like use v. beneficial
use
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o Shouldn’t be able to take away huge value when it helps society
o Court: uses in Hadachek were lawful as well: restrictions reasonably related
to policy for wide-spread public benefit, and regulation applied to similar
property: not about noxious use
 Same thing here: historic preservation: for public good
 Seems to wipe out nuisance like use argument: restrictions were
reasonably related to implementation of policy, like historic
preservation, with widespread public benefit and applicable to all
similar property: says not about the noxious use
 But keystone coal: was after this: brings it back in
o Court cont.: Penn Coal hurts P anyway: placing building above landmark is
nuisance like use. Meant to prevent damage to socially valuable thing
REINQUEST DISSENT
 This is not nuisance like use at all
 Look for reciprocity of advantage if you say it’s part of policy for public benefit
o P: unilaterally harmed (and few other landmarks). Owner can look at other
buildings: but not real advantage. So unlike zoning law. Huge burden, very
small benefit—discrimination for keeping building nice
 Might benefit NY as a whole: but if want that: have to compensate for lost
opportunity
o Can transfer air space: so that’s a step in compensating, now compensate
what’s left
Andrews v. Allen
 Facts: selling trinkets made of endangered species. Statute made it illegal
 Court: denial of property right (to sell thing) not a taking. Value not totally wiped out
 LOST FUTURE PROFITS: MUCH WEAKER ARGUMENT TO TAKING CLAIM.
Bc speculative
Lucas v. South Carolina Coastal Council
 Facts: Consortium of relators (Lucas was a part) bought land along coast,
unrestricted. Then beach protection expanded, couldn’t build on lots.
 Trail court: this was takings: bc deprived of economic use
 Appeals/SC of SC: essentially a nuisance control: avoid public harm in eroded
beaches
 Supreme Court: dicta: on physical invasion still per se taking. Doesn’t matter how
important regulatory program is. Tells us Larreto Rule still good
o Holding: 2nd per se taking rule: DENIAL OF ALL ECONOMICALLY
VIABLE USE OF PROPERTY IS PER SE TAKING (really must be 100%
(Palazzolo))
o Rationale: this is same thing as physical invasion: bc takes out all use like a
physical invasion does
 And unlikely there will be offsetting reciprocal advantage that will
make up enough
 Where permenant physical occupation: no longer how strong
government interest: still a taking. So same thing here.
112

o Exception: NO COMPENSATION OWED IF THE PROSCRIBED
INTEREST WAS NOT PART OF THE OWNER’S TITLE TO BEGIN
WITH
 If you don’t have the right to begin with: nothing being taken away
 So new law that takes away: if don’t have that right in title itself, then
it’s not a taking.
 In restrictions of state law on property and nuisance
 New law just duplicates existing result achieved by neighbors
 But can’t be newly created by legislature or decree
o That’s what happened here
 Dissent: this is bull shit: the state legislature found the
nuisance, so in the exception if you call it that. The
determination of the risk to public health is afforded deference
from judges, part of policy making role. Scalia taking it.
o Blackman dissent: exception is inconsistent with per
se rule: per se: don’t pay attention to nuisance (bc too
easy to manipulate): but exception: based on nuisance
rule (in courts this time instead of legislative: just as
manipulatable)
 State courts: created even bigger exception: statutory
prescriptions in addition to common law doctrines: even
though this is what Scalia seems to say judge made nuisance
doctrine to be in exception.
o Timing critical: if law before indi got property
interest: then no loss. If before, you didn’t lose any
rights
What about Nuisance? Seems economic devaluation wouldn’t apply
o 1. Nuisance exonerated payment bc directed regulation at nuisance (not losing
anything): nothing that says you don’t compensate (DISSENT: this is exactly
what Hadacheck said)
o 2. Even if it is a nuisance: that test is gone now
 just a prequel to new rule that: “land use regulation does not effect a
taking if it substantially advances legitimate state interests “
 except above: if 100% deprivation it would
o 3. Even if still have nuisance like use test: end it now: bad test
 formulaic: can just make stuff sound like nuisance: preventing harm
 really could be benefit too
 ex. no highway signs to stop distracting drivers (Hadechek no
takings) or to get better view (public benefit: takings)
 and exacting benefits to public as a whole by costing the individual:
public should have to pay for benefit
Denominator Problem: robbed of all economic use if consider parcels of the land, not if
consider the entire plot
 Hypo: Lucas buys 5 lots: statute only covers 3 of them.
o Does “property”: count as whole thing, or each track individually?
 If property is entire thing: not per se takings under Lucas: Penn
central analysis
113



 If property is two lots: per se taking under Lucas
Hypo 2: Lucas buys 25 acre parcel. 10 acres regulated and can’t be developed
o Subdivides 25 acre parcel into 4 tracts: 3 parcels out of zone, 1 parcel in
 Is regulated 10 acre parcel Lucas per se taking? Depends:
 If count “regulated property” as 10 acre parcel: taking
 If count “regulated property” as 25 acre: then only 40% loss
How to solve: owner’s reasonable expectation based on state law on particular
interest in land
o PA Coal: at time: regarded land as having 3 distinct estates:
 Surface
 Support (owned by PA)
 Mineral (owned by PA)
 Statute: wiped out PA’s entire support estate: and gave it back to the
owner: recognized the interest as legit: took it away: must compensate
o Distinguish: from Penn Central: air rights not recognized as different right
 So in PA: legit expectation support estate would stay valuable
 Penn Central: no expectation air rights retain value in absence of
surface rights (and surface rights still valuable as train station, so not
100% wipeout)
 So denominator difference between cases makes sense: Penn: separate
estate: 100% wipeout. Penn, not separate estate, not complete wipeout
o Probably easier to get lower denominator if buy lots at different times
How this plays out: S.C. hasn’t set guidelines
o State Courts: don’t sever rights (dissent in PA coal, keystone coal, penn
central opinion): broader denominator
o Federal claims court: opposite: conceptually sever (PA coal):
Palazzolo
 Statute: wetland protection: claimed Lucas per se taking. Brought inverse
condemnation.
 State supreme court: can’t get damage: bc already in effect when bought property
o Background state law: within Lucas exception
 S.C.: REJECT CLAIM OF AUTOMATIC BAR ON TAKINGS CLAIM IF
REGULATED PROPERTY OWNER PURCHASED THE PROPERTY AFTER
THE ADOPTION OF THE POTENTIALLY COMPENSATORY REGULATION
 Doesn’t automatically count as background under exception of Lucas
o Rational: any pre-purchase regulatory scheme would be unchallengable
 Puts purchaser in worse position as predecessor, as soon as
predecessor sells: no more claim. Predecessor forced to bear loss
(diminished value) if don’t want to sue themselves (maybe not worth
time/money for them). OR if P unaware: then P bears loss
 THE RIGHT TO BRING INVERSE CONDEMANTION ACTION RUNS WITH
THE LAND
o And reinforced need for 100% in Lucas rule
 If not 100%: The could get compensated under Penn Central Analyis
 O’Connor concurring: But then: fact that owner purchased
after the enactment of the regulation may be relevant to the
issue under Penn Central balancing test
114

o Bc wont interfere with reasonable investment-backed
expectation
o Doesn’t draw bright line though
P: trying to say look at wetland part: lost complete value: denominator issue: not
settled here, bc didn’t raise it below. So now shot at Penn Central Test, but O’Connor
concurrence: bad chance
Taho-Sierra
 Statute: temporary moratorium on development until comprehensive regulatory plan
could be enacted
 P: brought Lucas Claim: Moratorium, couldn’t do anything with property
o So new severance issue: severance of time
 Court: rejects: TEMPORARY MORATORIUM IS NOT PER SE TAKING: BC
TEMPORARY
o 1. Rejected landowners claim that a temporary moratorium on development
was a per se taking bc moratorium amounted to denial of all economically
viable use of the property (Lucas approach): during the time it was in effect
o 2. Refused to sever ability to use property during time from remainder of fee
simple absolute
 “we have consistently rejected the P’s approach to the denominator
problem”
 didn’t make Penn Central argument; still could make first English claim
First English (this is extra shit):
 Rule: if a gov. regulation results in a taking, then the government must pay
just compensation from the time the regulation first worked the taking until
the time the government rescinds the regulation or changes it in such a way
that no taking occurs
o Ignore normal permitting process time and the like
o But undue delay results in liability
 Damages: hard to calculate: Wheeler: market rate return computed over
period of temporary taking: difference between proper fair market value
without regulation and its fair market with regulation
 Issue of law: takings wont occur until gov refuses to pay, interference could
begin much earlier: compensation measured from that time
o So first: bring in state court: show regulatory taking
o Then federal court: to show no just compensation
Whole Parcel Rule After Tahoe-Sierra
 PA Coal
o Majority: taking occurred bc the Kohler Act took the entire “support estate”
o Dissent: no taking occurred bc the value of the coal kept in place must be
compared with the value of all other parts of the land, “the sum of the rights
in parts can not be greater than the rights in the whole”
 Penn Central
115



o Majority: no taking bc “taking jurisprudence does not divide a single parcel
into segments.” The courts should focus on the nature and extent of the
interference with “rights in the parcel as a whole”
o Dissent: taking of the terminal owner’s property; nonconsensual servitude
imposed, with no reciprocity of advantage
Keystone
o Majority: no taking of the specific pillars of coal that need to be left in place
bc they were not a separate segment of property
o dissent: taking: PA coal is indistinguishable
Palazzolo
o Majority: some cases recognize that the extent of the deprivation is measured
agasint the value of the parcel as a whole
o But other cases (citing Lucas) have “expressed discomfort with the logic of
this rule”
Tahoe-Sierra:
o No taking: rejects temporal conceptual severeance and relies on Penn
Central’s “parcel as a whole” rule
4.
Exactions
Nolland Case
 Facts: wanted to destroy house and build new one. Asked for permit. Commission:
will only give you permit if you allow ppl to use your beach to get between two parks
 Issue: is result different bc Nolland’s asked for permit, get a restriction in return?
 Rule: Logan Case (and within Lucas): not a taking if
o 1. Land-use regulation substantially advances legitimate state interest and
o 2. Does not deny an owner of economically viable use of land
 application: there were three state interests in regulation: 1. See beach and know its
there 2. Psychological barrier to using beach by developed shore front 3. Prevent
congestion on beach
o permit didn’t do any of them: so essential nexus between purported police
power goal and means choses is missing: allowing ppl to walk up and down
doesn’t help the goals
 rules from case
o 1. THERE IS A REGULATORY TAKING IF THERE IS NO ESSENTIAL
NEXUS BETWEEN THE PURPORTED REGULATORY GOALS AND
THE REGULATORY MEANS CHOSEN TO ACHIEVE THEM
 regulatory means must substantially advance the purported regulatory
goals
116

this case: was an exaction (forced sale: like a physical taking):
granted a building permit to landowner only if her agreed to allow
lateral accesss across its beachfront property by the public
 trying to force Nolland to lose right to exclude without
payment
 found taking for first time on grounds other than: economic impact or physical
invasion
DISSENT
 Sclaia is adding a new test here: substantially advance test: before just used rational
basis of connection between ends and means
 Even if Scalia gave right test (substantially advance purported regulatory goal): this
does: : goal number 4: meant to facilitate lateral access between the parks.
o It’s substantially advanced
o Maybe appropriate to give compensation: but through old tests
 1. Economic impact
 2. Physical invasion
 3. Divestment of portion of land
o state interest they’re advancing: just has to be within police power: including
general welfare: (from Kilo and others: virtually no limit)
Dolan Case
 facts: trying to build bigger parking lot. To get permit, had to do crazy stuff: like help
traffic flow way beyond how much she would hurt it, 9 other things.
o This was an exaction
 Common in development projects: building new area: requires city to
do stuff too (sewers, drains, streets, etc): gov says we’ll give you
permit but you have to do something to reduce burden.
 Ex. a park (condition in kind exaction)
 Money (monetary exaction)
 Rule from case THE DEGREE OF THE BURDEN IMPSOED BY THE
EXACTIONS PROGRAM MUST BE “ROUGHLY PROPRTIONA” TO THE
PROJECTED ADVERSE IMPACT OF THE REGULATED PROPERTY
OWNER’S PROPOSED DEVELOPMENT
o Government must show the required dedication is related both in nature and
extent to the impact of the proposed development
 Same effort to quantify the burden of the exaction and the impact of
the development required
o The rough proportionality test only applies in the context of exactions (land
use decisions that condition approval of development on dedication of
property (or money) to the public city of Monterey v. Del Monte Dunes)
monetary exaction is subjet to nexus and proportionality test (Kuntz v. St. John River
Management)
117
5.
Summary
Lingle v. Chevron USA
 Facts: in response to Chevron owning most of oil shit, limited amount of rent oil
company could charge their dealer-lessee’s
 Overruled Adgens v. Tiberone: means-ends test when gov regulates it’s a takings if it
does not substantially benefit legit state interest: this rule untenable
o Substantial benefit test: not a takings test
 Summary of other cases
o Per se takings
 1. Lareto: permentant physical occupation
 2. Licas: denial of all economic viable use
o non per se: Penn Central balancing test
o purpose of these: to see if physical regulation is functionally equivalent to
government appropriation of private property: if regulation is the same thing
as just snagging the property
 substantial benefit on the other hand: not about if this is like government
appropriation: not tied to the test of takings, or to justification for it
o even if there is no substantial justification for measure: it’s not a takings
violation
 but doesn’t mean it’s valid: because if there is not an advancement of
legitimate police power goals: then there’s a violation of the due
process clause: (deprives individual of due process rights)
 explanation
 A REGULATION OF PRIVATE PROPERTY DOES NOT
AMOUNT TO A TAKING IF A COURT FINDS THAT THE
REGULATION FAILS TO SUBSTANTIALLY ADVANCE
LEGITIMATE STATE INTERESTS
o in such a case, the GOVERNMENT LACKS THE
AUTHORITY TO ADOPT THE REGULATION IN
THE FIRST PLACE, even if it agrees to pay the
regulated property owners
o SUCH A REGULATION IS A DEPRIVATION OF
PROPERTY WITHOUT DUE PROCESS, but it is
not a taking
o so overrule Agins
 Nollan and Dolland: still good law: but because it was like a
physical occupation (easement and leese agreeemnts):
required P’s to dedicate an access easement to the public as a
condition of receiving permission to develop
 Such exactions amount to takings because they violate the
doctrine of unconstitutional conditions; THE GOV MAY
NOT REQUIRE A LANDOWNER TO WAIVE HIS OR
HER RIGHT TO JUST COMPENSATION FOR A TAKING
AS A PREREQUISITE FOR BEING ALLOWED TO
DEEVELOP
ad coelum/cuius est solum, eius est usque ad caelum et ad inferos = for
whoever owns the soil, it is theirs up to Heaven and down to Hell
118