Abandonment
In order to abandon property and not be held liable for the responsibilities of a property, a property holder
must voluntarily relinquish all:
1. right
2. title
3. claim
4. possession
With the intention of terminating his ownership, but without vesting it in any other person and with the
intention of not reclaiming further possession or resuming ownership or enjoyment. The State has a
vested interest in maintaining an owner for the property. It’s very difficult to abandon land to which you
have perfect title (valid deed + recorded by land registry) Pocono Springs Civic Ass’n, Inc. v. MacKenzie
Accession - Doctrine of Accession
Wetherbee v. Green: When the right to the improved article is the issue at hand, the question of how much
the property or labor has contributed to make it what it is, must always be the predominant factor (ex: you
can’t claim an organ over a piece of wood)
The law aims to accomplish substantial equity and therefore, sometimes the value of the materials having
been increased a hundred-fold is of more importance than any transformation. Therefore, we should
apply the theory of relative value (significant) and if it applies, ownership automatically transfers
Accretion – the movement of the earth gives and takes…windfall goes to owner of the soil
A deposit becomes the property of the owner of the soil on which it is made (Goddard v. Winchell).
Ad Coelum
Hinman v. Pacific Air Transport states that this doctrine is a legal fiction because it takes dominion to
assert trespass. Things like the air and sea are incapable of exclusive possession/private ownership.
Also in Edwards v. Sims, the court uses ad coelum as a proxy (although the procedural posture of the case
gave rise to the rationale behind this move). Ad coelum does in a sense represent another general
principle of accession since we start with ownership and increments in value are assigned to the owner of
the surface.
Adverse Possession
Adverse possession is about notice. The element of open and notorious provides notice. Lessee of Ewing
v. Burnet demonstrates that intent is difficult to discern in adverse possession. Later, Chaplin v. Sanders
specifically says that intent is no longer significant and that the character of use is most important. A
bilateral dispute is able to result in a title that is good against the world at large (in rem)
Adverse possession is efficient in the sense that property can be transferred efficiently. It serves to quiet
titles, reinforce the reliability of land records, and allow transferability of land at lower costs than would
otherwise be possible. Note in Howard v. Kunto that the continuity aspect is challenged, but the court
finds that tacking is allowed between the D and his predecessors. A summer occupancy still shows
possession and dominion and the customary use of the property.
Elements of Adverse Possession: (Chaplin v. Sanders)
5. Exclusive – Exercise rights to show that the possession is to the exclusion of the OO. Often if the
adverse possessor exercises the right to exclude, the requirement will be satisfied (Ewing).
6. Actual and uninterrupted – requirement is met when the AP remains in possession of the property
for the entire duration of the period of limitation (Ewing)
7. Open and Notorious – visible and apparent. This element is about notice. Some courts look to the
actions being open and notorious to the world (Ewing). But other courts have emphasized notice
to the true owner (Chaplin).
8. Hostile or adverse– gives notice to the OO and others that the AP is using the property. This will
be determined by the character and use of the land during the statutory period (Chaplin). Cannot
have permission from the OO.
Bailments see pg 36 of outline for key concepts
Given by a bailor to a bailee for a limited purpose and limited amount of time. Some of the bailor’s rights
associated with ownership are also transferred to the bailee (including the right to exclude). From a third
party’s perspective, the bailee’s rights are similar to those of an owner.
A bailment requires: (Allen v. Hyatt Regency)
1. Delivery of possession and
2. Control
Chattel – Tresspass to Chattel
Three conditions for Defining Injury to Chattel: (Intel v. Hamidi)
1. Condition, quality or value of the owner’s interest in the chattel
Injury is NOT required when there is dispossession of the owner of the chattel. The owner could bring a
claim if there is no injury.
In Intel, there was no harm to the chattel, but there was in the CompuServe case where bulk emails slowed
down the server and computer system.
Chattel v. Realty
Comparing Wetherbee v. Green to the holding in Golden Press (innocent improver)…the land is divisible
whereas doctrine of accession is a complete transformation. Although the doctrine of accession and the
innocent improver concept end up saying very similar things here…there is a point in differentiating
between land and chattel.
Trespass to chattel says that unless there is a wrongful deprivation that interferes with your use or
physical damage to the chattel, you do NOT have a cause of action under the law. Intangibles are even
more distinct since we’re dealing with non-rival resources. There are also higher information costs
(monitoring and costs to third parties in terms of duty) for chattel because they are movable. Therefore
there are continuous costs, unlike realty because it is immovable.
Condos
Condominiums present governance issues because they function somewhat like a democracy. The unit
owners must determine some way to organize collectively to manage common areas and shared facilities.
This is typically achieved through a combination of an organizing document and elected governing body.
Nahrstedt v. Lakeside Village Condominium Ass’n – courts will defer to the condo assoc. rules unless
restriction is "unreasonable" (arbitrary, imposes burdens on the use of land that substantially outweigh the
restriction’s benefits to residents, or violates a fundamental public policy)
40 West 67th Street v. Pullman –Test for the need to do a deeper review under the business decision rule
standard of review: 1) Board acted outside of scope of its authority 2) in a way that did not legitimately
further the corporate purpose or 3) in bad faith
Custom
Custom as a source of law  basis of Public Trust Doctrine
Doctrine of Custom (Blackstone lays out in State of Oregon ex rel. Thornton v. Hay)
1. It must have been used so long that no one can remember otherwise – it’s ancient
2. The right be exercised without interruption
3. The customary use be peaceable and free from dispute
4. Reasonableness – open ended inquiry (court can evaluate in different ways)
5. Certainty
6. Custom must be obligatory
7. Custom must not be inconsistent with other customs or other laws
Dependent Covenants
An assertion of dominion over the premises by the landlord constitutes an act of acceptance of surrender
and relieves the tenant of their obligation to pay rent. Even creating another lease is acceptance of
surrender unless there is an express provision in the old lease stating otherwise (In re Kerr).
Many courts now have an implied warranty of habitability in all contracts for residential leases. This is
generally a mandatory rule that is non-waivable, although some jurisdictions provide that it can be waived
for consideration as long as it complies with public policy and is not unconscionable. The reason it is a
mandatory rule is because there is a perception that tenants and landlords have unequal bargaining power
(Javins v. First Nat’l Realty Corp.).
Note that the IWH does not apply to the sale of a house!
Dominion
Connected to the idea of possession (which is 9/10ths of ownership) and requires the owner be in
possession of the land before they can claim trespass
In re: to ad coelum Hinman v. Pacific Air Transport
Donation Mortis Causa
Donation mortis causa is a gift in anticipation of death. Various jurisdictions range from refusing to
enforce these gifts, balancing them against wills and so forth. There must be an affirmative act of
delivery, not just an act of taking for a donation mortis causa. The delivery requirement (actual,
unequivocal, complete during the lifetime of the donor and must wholly divest possession, dominion and
control) stems from physical delivery being the best indication of intent. These gifts are also subject to
different restrictions than wills. Ex: Must sign wills with witnesses to avoid fraud. Foster v. Reiss
Fixtures
A form of chattel or person property that is so connected to the real property that the law considers it a
part of the realty. In this sense, a fixture is the accession of personality onto realty.
It may have been moveable originally, but by reason of its association in use with the land makes it
regarded as part of the land. (Strain v. Green)
Test for Fixtures:
1. Actual annexation to the realty
2. Application to the purpose to which that part of the realty with which it is connected is appropriated
3. The intention of the party making the annexation to make a permanent accession to the freehold
Presumption between tenants and owners installing fixtures:
If tenant: presumption that the tenant did not intend to enrich the freehold
If owner: presumption that they are intending to enrich the freehold
* presumption can be overcome by proof of obj. intent and even subj. intent that’s externally manifested
Independent Covenants
Even if one covenant is breached or failed, each covenant functions independently. If one side breaches,
it does not absolve either side from performing their side of the covenant  this conception goes against
contract law since typically if one side breaches on their side, the other side gets something from the
breach…what can happen will vary (rescind contract, sue for damages, etc)
1. Covenant to pay the rent – obligation to pay the equivalent (consideration) of the interest that you
have acquired in the land
2. Covenant of quiet enjoyment: Landlord has an obligation to not interfere with tenant’s right to
use/enjoy
A forfeiture clause is a one way benefit that goes to the landlord. It says that your warranty of quiet
enjoyment is contingent upon your payment of rent, but not vice versa. This type of clause makes one of
the two covenants dependent and began the shift toward contract law.
However, constructive evictions (Blackett v. Olanoff) made the payment of rent contingent upon the
performance of the covenant of quiet enjoyment. Courts adopted this realist position by looking at the
outcome and balancing the interests of the parties. This shift did move toward a dependent covenant
model, but the courts were not necessarily intentional about this shift.
Injunctive Relief Four Factor Test:
1. Irreparable injury
2. Inadequate remedy at law
3. Relative hardship
4. Public interest
These factors are satisfied whenever there is trespass (except in Ebay v. MercExchange general rule that
courts will issue permanent injunctions against patent infringement absent exceptional circumstances)
Leases
Upon the assimilation of leases into the estates system, they were given full protection as an interest in
land and leases were considered another form of property. Leases are now the most common form of
property interest and they function as a financing device that enables people with fewer assets to acquire
property to use as a residence or business. They are also a risk-spreading mechanism and operate as
entity property (permit management of entity resources to be separated from their use and enjoyment).
Types of Leases:
1. Term of years: has a fixed time at which it terminates and neither landlord nor tenant needs to
give notice to the other before terminating the relationship.
2. Periodic tenancy: automatically rolls over for a stated period of time and this time, notice is
required from the party that wishes to terminate the lease.
3. Tenancy at will: lasts as long as both parties wish it to continue. Either party can terminate at any
time for any reason. Did not require notice under common law, but not many jurisdictions do
require notice equal to the period of time at which rent payments are made.
4. Tenancy at sufferance: when an individual who was once in rightful possession of property holds
over after the right has ended. This is different from trespass because the entry was not wrongful.
This makes a difference in the landlord’s ability to use self-help like Berg v. Wiley.
Licenses
Temporary and revocable authorization of use or a waiver of the owner’s right to exclude
Marrone v. Washington Jockey Club of D.C., Hurst v. Picture Theatres, Ltd. and ProCD v. Zeidenberg
Grant
Distinguished for a license because a mere license is revocable at the will of the OO, but a grant is
irrevocable for the duration of the interest in the land.
Nemo Dat – furthers principle of sequential possession as presented in Armory v. Delamirie
“no one can give that which he does not have.” The principle rests on a vision of a chain of transactions
that can be traced back to an act of legitimate original acquisition.
Void title: person obtained the good through theft. There is no good faith purchaser exception.
(Kunstsammlugen zu Weimer v. Elicofon…the paintings were stolen! Title is void!)
Voidable title: person obtained the good through fraud, a bounced check or deception (Hauck v.
Crawford). Even if the fraud was punishable by larceny law, the seller has a voidable title and if they end
up selling the item to a good faith purchaser, then the good faith purchaser will have title. (Kotis v.
Nowlin Jewlery, but Kotis did fit the good faith purchaser requirements)
Nemo dat has one exception: Good faith purchaser
Nuisance: anything that disturbs the free us and enjoyment of one’s property (tort law concept)
1. Needs to be unreasonable
2. Needs to be intentional
Hendricks v. Stalnaker and others, check out page 9 of outline
Numerus Clausus
Merrill and Smith point out that the system of estates is sufficiently flexible to find a way to achieve
complicated conveyances. They present a theory of the numerus clausus based on optimal
standardizations of property rights.
Ouster
Adverse Possession (Lessee of Ewing v. Burnet) – ouster is a legal act. There should be intent to take
possession of the land. It’s not necessary to have a specific intent, but there does need to be an objective
intent that shows that the action of the person ousting effective dispossessed the previous owner so that
the ouster now has the right to exclude. The legal test of ouster is tied to adverse possession.
Tenancy in Common (Gillmor v. Gillmor) – an actual, physical act directed at excluding someone or
direct communication to exercise right to use land followed by an act that amounts to the denial of the
other person’s exercise of rights (so 1) demand, 2) awareness and 3) denial)
Generally no right of contribution when a cotenant makes improvements without consent of fellow
cotenants. But there is a right of contribution if there is a good faith belief that the cotenant is the sole
owner or if the improvements were essential to preserve and protect the common estate.
Tort of Conversion (Songbyrd v. Estate of Grossman) – resembles ouster because property is in the
unauthorized possession of another who has acted to exclude the rights of the owner by exercising
dominion and control of the property that is not in the interest of the TO.
Larceny, on the other hand is a crime and has a specific intent (People v. Olivo).
Partition in Kind and by Sale
Partition in kind is a division of the property itself, making two independent parcels of land.
Partition by sale constitutes a forced sale of the land, followed by division of the profits among tenants.
If either party wants out, then a court must come up with a way to divide the property.
The court in Delfino v. Vealencis states that the default is the partition in kind. A owner can move to a
partition by sale when: (the two parts are like a balancing of equities moreso than dogma)
1. The physical attributes of the land are such where a partition in kind is inequitable
2. The interests of the owners would not be served by a partition in kind (impracticable)
Patents: Trenton v. A.E. Peterson Manufacturing Co.
In order to protect patents, they must have:
1. Novelty
2. Utility
3. Non-obviousness
Privity of Contract
Provides that a contract cannot confer rights or impose obligations arising under it on any person or agent
except the parties to it. The premise is that only parties privy to a contract should be able to sue to
enforce their rights or claim damages. However, the doctrine has proven problematic due to implications
upon contracts made for the benefit of third parties who are unable to enforce the obligations of
contracting parties.
Privity of Estate
The concept in property law that there is a legal relationship between two parties with a similar interest in
property, with shared rights and responsibilities. This relationship does not arise out of contract but
connected through possession of the property on the land. It was historically restricted to landlord-tenant
relationships; however courts have expanded the concept to include grantor-grantee relationships.
1. Parties must be bound to interests such that one is directly carved out of the interest of the other
2. One of the parties must be in actual possession of the property
When the tenant transfers his interest in the property to another person, called the assignee, all covenants
in the original lease "that touch and concern the land" are binding on the assignee. Privity of estate flows
to that person, allowing the assignee to sue the landlord.
Covenants that run with the land:
The ordinary test to determine whether a lease runs with the land is:
1. Whether the parties intended the covenant to run
2. Whether the covenant touches and concerns the land
A lease covenant does not run with the land unless it touches or concerns the land. A covenant runs with
the land when it touches and concerns the land for the benefit of the property. The clause needs to
DIRECTLY improve or benefit the land
A covenant cannot run with the land despite the language in the lease which says it does. Intent is not
enough to make a running covenant out of one which is by its nature personal (and therefore in personam)
says the court in Mullendore Theatres, Inc. v. Growth Realty Investors Co.
Patents: Trenton v. A.E. Peterson Manufacturing Co.
In order to protect patents, they must have:
1) Novelty, 2) Utility, 3) Non-obviousness
Public Trust Doctrine
Principle that certain resources are preserved for public use, and that the government is required to
maintain it for the public's reasonable use (Ill. Cen. R.R. Co. v. Ill.).
Right to Exclude: The ability to exclude other groups from a given resource (places value on autonomy)
Jacque v. Steenberg Homes: the belief that punishment is necessary because of the fundamental
importance of the right to exclude to property. There doesn’t have to be a justification to exclude.
Right to Exclude Exception 1 – Necessity
Several cases that justify entry, but it applies with special force to the preservation of human life (Ploof v.
Putnam). Should be:
1. A pre-existing nature of right
2. The only alternative (absence of viable alternative)
Vincent v. Lake Erie dock owner sued ship owner, damage suffered by the real owner had to be
compensated for by the trespasser who was responsible for it (liability rule vested in the dock owner)
Right to Exclude Exception 3 – Public Accommodations
There is a right to reasonable access from common law. In Uston v. Resorts Int’l Hotel we see that when
property owners open their premises to the general public in pursuit of their own property interests, they
have no right to exclude people unreasonably.
This doctrine sits in between economic monopoly concerns and also by the premise the discrimination
arbitrarily is bad.
The hierarchy of protected classes:
1. Constitutionally protected class (Shelley – race)
2. Statutory classes (Attorney General – marital status)
3. Everyone else (Uston)  seems like the Public Accommodation doctrine grants protection to classes
that are not protected by the constitution or statutes
Self Help also see pg 30 of outline
Is allowed under the UCC (but this is a minority view) – Williams v. Ford Motor Co. (dealing w/chattel)
Is not allowed without first going through summary proceedings – Berg v. Wiley (dealing w/realty)
Intel v. Hamidi seems to indicate that retaliation may be more acceptable in the world of intangibles
Sequential Possession
Courts often try to balance three essential variables:
1. Equities
2. Interest of the original owner who was not a party in the bilateral dispute
3. And most problematically, how the court sets up a general principle of sequential possession to use in
the future (Armory – finders favored, Clark – temporal priority introduced, Anderson – lawful connection
narrowed to a bilateral setting)
Jus tertii – the relativity of title
It is a defense based on the rights of third parties. Title is a proxy for ownership premised on the concept
of possession. In practice, title can grow into a full blown property interest right in rem minus one, the
TO. There are substantive and procedural disputes about disallowing jus tertii because it is unclear
whether it gives parties the right incentives and whether it affects information costs. In the end, parties
cannot set up a superior title in a third party.
Tenancy
Tenancy in Common: each tenant in common has a separate but undivided interest. Each interest is
independently conveyable and devisable.
Joint Tenancy: almost exactly like a tenancy in common in that there is a separate and undivided interest;
however, a surviving joint tenant automatically acquires the interest of another joint tenant when the other
tenant dies. The joint tenancy requires four unities:
1. Time – interest must be acquired or vest at the same time
2. Title – must acquire title by same instrument or joint adverse possession
3. Interest – have same legal interest in the property
4. Possession – each must have a right to possess the whole
If one of the unities is broken, the joint tenancy becomes a tenancy in common. In Harms v. Sprague, the
court held that a mortgage is treated as an interest on the property and does not severe any of the unities.
A mortgage is simply a right in personam!
Transfer of Interests
Two types of Transfers of Tenant Interests:
Assignment: operates like an alienation. The primary tenant transfers the entirety of the interest he had
from the landlord to the assignee who then takes the place of the primary tenant.
Sublease: landlord and tenant that enters into a lease. The tenant leases to a subtenant. The interests keep
getting narrowed.
The distinction between sublease and assignment is important because it affects who the landlord and the
tenant in possession must deal with when problems arise in the ongoing relationship under the lease.


Sublease: you deal directly with person above you in the chain
Assignment: will always be between original landlord and latest assignee
o Novation and assumption are like two sides of the same coin, but they do not have to go
hand in hand simultaneously
o Assumption: occurs if the first assignee expressly agrees as a part of an assignment
agreement to be bound by the terms of the original lease. They agree to be bound by
privity of contract in addition to the privity of estate
o Novation: occurs when the parties agree to erase any privity of contract liability on the
part of the prime tenant. The prime tenant becomes off the hook of privity of estate and
now the privity of contract is also erased.
Trusts
Trusts are a type of entity property that has a non-possessory interest. The modern form of trusts
involves three legal personas (but they do not have to be distinct persons)
1. The person who creates the trust (settlor)
2. Legal persona who receives the property and is responsible for management/control (trustee)
3. Legal persona for whose benefit the trustee manages the property (beneficiary)
A spendthrift trust is when the settler specifically prevents the proceeds of the trust from being available
to the creditors of the beneficiary. This way, the assets cannot be signed away prior to actual possession
of the beneficiary (Broadway Nat’l Bank v. Adams wanted to uphold the brother’s express will)
Cy Pres Doctrine: When the settler has a specific charitable intent, but due to changed circumstances their
intention cannot be realized. Courts can fill gaps in these instances provided that the result coincides with
the intent of the settlor. (Wilbur v. Owens)
Waste
Affirmative waste: when life tenant takes affirmative action on the property that is unreasonable and
causes excess damage
Permissive waste: life tenant fails to take some action and this failure to act is unreasonable and results in
excess damage (allowing adverse possessor to stay on land is an example)
Ameliorative waste: an affirmative act by the life tenant that significantly changes the property but results
in an increase in its market value (like Brokaw)