Real Property = land and things permanently attached to land
- Bundle of rights associated with owning property:
o Right to exclude others
 Warrants (law enforcement)
 Public accommodations law
o Right to use and enjoy
 Zoning laws
 Nuisance law  can’t use your property in a way that substantially
interferes with some else’s enjoyment of their property
o Right to transfer / alienate land
 Right is limited if you want to rent, sell
o Right to maintain ownership
 Eminent domain
TRESPASS LAW (limit on right to exclude)  Right to Exclude vs.
Right of Access
(don’t forget about these two!)
- Defense of necessity (Ploof v. Putnam)
o Necessity is a defense to trespass  but if harm is done during the trespass,
trespasser had duty to compensate.
- Consent
-
Trespass = unprivileged intentional / volitional intrusion upon property possessed by
another by an individual or object, at, above, or below the surface.
o Cause of action for enforcing the right to exclude
o Remedies:
 Injunctive Relief
 Declaratory judgment for or against would-be trespasser
 Ejectment action by property owner
 Monetary Relief
 Objective measures of valuation vs. subjective measures of
valuation
 Nominal, compensatory, punitive damages
o Compensatory damages:
o Glavin v. Eckman: D cut down trees on P’s property so that
he could have view of the ocean from his house  what is
the proper measure of compensatory damages?
 D args:
 Value of timber cut (objective measure)
 Diminution in market value of P’s property
(objective measure)
 P args:
 Restoration damages  how much it would
cost to replace [takes into account sentimental
value, etc.] (subjective measure)
1

RULE: Need to balance an appropriate punishment by weighing
damage done vs. what would deter P from doing their wrong
again.
 Restoration costs available where diminution of
value is unavailable or unsatisfactory.
 To get restoration costs  P wants to present
evidence of special subjective value.
o Helps to show that there was a plan for
the property’s enjoyment which was
interrupted because of D’s trespass.
o Punitive damages:
o Jacque v. Steenberg Homes: P expressly told D they could not
drive across their land to deliver mobile home but D did it
anyway (no actual harm occurred, but violated P’s rights so
legal harm occurred.) Jury gives $1.00 nominal, $0
compensatory, and $100,000 punitive.
 3 Factors for assessing whether punitive damages
violate due process:
 1. Degree of reprehensibility
 2. Disparity between P’s harm suffered and
punitive award
 3. Difference between punitive damages and
civil/criminal penalties in similar cases.
 Ct holds: right to exclude is one of the most essential
property rights in the bundle  landowners should
feel confident that trespassers will be appropriately
punished.
 Punitive damages are acceptable bc conduct is
particularly egregious.
RIGHT TO EXCLUDE IS NOT ABSOLUTE  LIMITATIONS:
o PUBLIC POLICY JUSTIFICATIONS:
 State v. Shack  for welfare of people who wouldn’t get info/service any
other way (public policy justifications)
 Migrant worker population separated from rest of population and
wouldn’t receive necessary information from lawyers if not allowed
onto farmer’s property  necessity.
o P’s intentionally avoided Constitutional claim and argued
under NJ state statute so that D wouldn’t have appeal
regarding interpretation of federal law.
o State statute claim sufficient because statute didn’t grant
property owners right to bar access to governmental
services available to migrant workers.
 No possessory right of landowner has been invaded so there is no
trespass.
o RIGHT OF REASONABLE ACCESS TO PROPERTY OPEN TO THE PUBLIC:
o (applies to someone’s presence)  if speech, look to next section
2
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


COMMON LAW:
Majority Rule  only two types of property constitute places of public
accommodations for which there is a right of reasonable access:
 1. Inns
 2. Common Carriers (planes, trains, buses, etc.)
o Viewed as essential services and denial of access would place
individuals at risk
o Hold themselves out as ready to serve the public and the
public relies on this ability to access.
o Protects people’s right to mobility.
Minority Rule  All property is open to the public and must grant a right
of reasonable access to members of the public.
 Uston v. Resorts Casino: card counter sues for being denied access
to blackjack tables. Ct there relies on rule from Schmid  “when
property owners open them premises to public in pursuit of their
own property interests, they have no right to exclude people
unreasonably – duty not to discriminate.”
o Uston denied reasonable right of access.
STATUTORY: Public Accommodations Laws
 Federal:
o Civil Rights Act of 1866:
 Equal Rights under the law  make and enforce K’s
 Property Rights of Citizens  ability to inherit,
purchase, lease, and sell property.
o Civil Rights Act of 1964:
 To violate: D must have committed discrimination or
segregation on the grounds of race, color, religion, or
national origin in a place of public accommodation.
 Place of public accommodation:
o 1. Within the list named in the statute
or implied AND
o 2. Serves the public (not a private
establishment) AND
o 3. Either affects commerce or
supported by state action.
 (Last qualification present
because the Civil Rights Act was
passed via the commerce
clause.)
 Statute does not apply to private
establishments/clubs not open to the public except to
the extent that the facilities of such establishment are
made available to customers/patrons of an
establishment within the scope of this statute.
 State:
o State public accommodations laws cannot provide less
access than the federal statute, but can provide more.
o Ex. NJ Statute:
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
“All persons shall be able to use public
accommodation without discrimination on the basis
of sex, sexual orientation, marital status, race, color,
religion, or national origin.” (EXPANDS FEDERAL
PROTECTION)
o FREE SPEECH RIGHTS OF ACCESS TO PRIVATE PROPERTY:
 (applies to someone’s speech)  if presence, look to previous section
 1st Amendment: “Congress shall make no law…abridging the
freedom of speech.”
o Applies to the states and municipalities via incorporation
doctrine of 14th Amendment.
o ISSUE  when should 1st Amendment protections extend to
large private entities?
 Marsh v. Alabama: Chickasaw, AL is a town owned
by a private organization. Town had all
characteristics of a normal municipality except with
“private property” signs posted throughout. P handed
out religious pamphlets and was told he couldn’t.
 RULE  The more an owner, for his advantage,
opens up his property for use by the public in
general, the more his rights become circumscribed
by the rights of those who use it. (No absolute
dominion)
 Since facilities are built/operated to benefit
the public and since it’s essential to public
function  it’s subject to state regulation.
o People in company owned town cannot
be deprived of rights / freedoms under
the 1st A because the town is privately
owned.
o Balancing rights of private property
owners vs. people’s rights under 1st A
 1st A will ALWAYS win.
 Analysis may be different if the residents
aren’t as isolated as they were in Chickasaw 
if people could easily access the same
information somewhere else, 1st A wouldn’t be
as implicated.
 Amalgamated Food v. Logan Valley: Picketing on
street in front of shopping plaza about the non-union
workers employed by the shopping plaza.
 RULE  Because shopping center served the
community business block and is accessible to the
public, its acting as a state, and cannot exclude
those members of the public wishing to exercise
their 1st A rights on premises in a manner
consistent with the purpose of the shopping center.
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



Holding is limited to picketing directly related
to shopping center’s purpose
o Ex. Shopping center COULD exclude
picketers protesting hunting whales
because its not related to the shopping
center.
Lloyd v. Tanner: huge mall where people handed out
pamphlets protesting the Vietnam war and were told
by mall security that they were not allowed to. Were
told to go outside the mall on the streets and
sidewalks to hand out pamphlets.
RULE  An uninvited guest does not have a free
speech right of access to speech unrelated to the
purpose/function of the property.
 Attempt by the Ct to recognize private
property rights of even very large private
organization.
 Distinguishable from Marsh and Logan Valley:
o Marsh  no public streets in the area
as an alternative avenue to get the
information out.
o Logan Valley  picketing was directly
related to the place that they were
protesting.
NJ Coalition v. JMB Realty: NJ state case 20 years
after Lloyd where P wants to hand out Gulf War
lobbying leaflets in mall.
 Schmid factors of “relevant considerations
test”: (essentially testing whether expression
is related to business purpose)
o 1. Property’s normal use
 P arg: this is a community
meeting place, especially given
that community events are
hosted here.
 D arg: purpose is to conduct
commerce.
o 2. Extent and nature of public’s
invitation to use that property
 P arg: invitation is more than
just shopping – walk around,
hang out, meet up, etc.
 D arg: invitation is to come shop.
o 3. Purpose of expressional activity
on the property in relation to
private/public use.
 P arg: people gather here and it’s
a place to be heard.
5
D arg: purpose is commerce –
tho we’ve held community
events, it’s merely to lure
shoppers into the mall.
Ct balances property rights with free speech
rights  1st A always wins. Holding limited to
speech about causes, candidates, and parties.
o Ct gives mall power to regulate how the
speech will take place  time, place,
and manner restrictions.


ADVERSE POSSESSION  TRESPASS TRANSFORMS TO OWNERSHIP
Policies behind having adverse possession:
- Land goes to those who made good/productive use of it
- Encourage responsibility of property owners.
o Minimum requirement is merely to check on property at least once within the
statutory period.
- Preventing valuable resources from being left idle
- Punish record holder
- Protect adverse possessor’s settled expectations and reliance interests
- Grant repose to adverse possessor.
-
Elements:
o Actual possession that is
o Open and notorious
 So as to give constructive notice to owner (actual notice not required).
 Would a reasonable inspection result in notice to the owner that a claim
has been made to the land in question?
 Ex. Enclosing land, building a structure, clearing the land etc.
o Exclusive
 Use is of a type that would be expected of a true owner and is exclusive of
the true owner.
o Continuous
 Exercise control over the property in ways customarily pursued by owners
of that type of property (ie. seasonal homes, etc.)  Nome 2000 v.
Fagerstrom
o Adverse/Hostile
 Without owner’s permission.
 Some J’s have state of mind requirements for Adverse Possessor:
o Majority Test = adverse possessor just lacked permission
from the record owner.
o Minority Test = intentional dispossession
 Adverse possessor intentionally ousted true owner /
must intend to AP.
o Minority Test 2 = adverse possessor mistakenly/innocently
occupies property of another.
 Must not intend AP.
o For the statutory period
 Differs from state to state.
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
-
-
Color of Title  some states require adverse possessors to show
that they purchased property pursuant to a deed that mistakenly
failed to describe accurately the boundaries and that they possessed
a substantial portion of property described in the deed in good faith
belief that they owned the whole area described.
Tacking doctrine = adding together the time period that successive adverse possessors
claim the property if such parties are in privity of title.
o Issue of INTENT:
 Brown v. Gobble: D bought house from Fletchers who bought it from
Blevins. When P bought their house, did survey and realized D had fence 2’
onto their property (fence had been there the whole time).
o Actual possession  D placed flower beds on land and it was
fenced in
o Open and notorious  reputation in community that D and
his predecessors owned the tract.
o Exclusive  no one besides D and his predecessors used it.
o Continuous  since Blevins
o Adverse/hostile  they had fence around it and used without
permission
o Statutory period  10 years required
 While D only in home for nine years, they can tack
the time periods of successive owners so long as D
is in privity with successor.
 Privity = original adverse possessor purported to
transfer title to the property to the successor.
 If successor dispossessed the prior adverse
possessor forcibly, tacking doctrine does
not apply.
Adverse possession for personal property (not land):
o Conversion Rule  Statute of limitations starts running when property is
wrongfully taken (converted) and owner is dispossessed of property.
o Discovery Rule  Statute of limitations starts running when owner discovers
where taken property is.
o Demand Rule  State of limitations starts running when owner makes demand
for return of taken property and person in possession refuses to return it
 Most protective of true owner’s interests.
PRESCRIPTIVE EASEMENTS  TRESPASS TRANSFORMS TO USE RIGHTS
-
Runs with the land
Results in right to continue the kind/amount of use that persisted during the statutory
period
Easement = Limited right to use (or control use of) property of another
Affirmative Easement = Right to do something on another’s property (Ex. Right of way)
- CAN be acquired via prescription because property owner has notice via trespasser’s
open use
Negative Easement = Right to prevent someone from doing something on his/her property. (Ex.
Blocking sunlight by building)
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-
CANNOT be acquired via prescription because no notice is possible.
ELEMENTS:
- Actual use that it
- Open and notorious
- [need NOT be exclusive]
- Continuous
- Adverse/Hostile
- For statutory period
- + [acquiescence of the record owner]
o Actual record owner allowed use to continue without formally granting
permission.
 More than constructive notice  actual knowledge
 Requirement varies from state to state.
- *****PUBLIC USE DEFEATS PRESCRIPTIVE EASEMENT CLAIM.
**Defenses to trespass = adverse possession, prescriptive easement, necessity, public use
NUISANCE LAW  D’S RIGHT TO ENGAGE IN HARMFUL
ACTIVITY VS. P’S RIGHT TO BE SECURE FROM HARM
Nuisance = a substantial and unreasonable interference with someone’s use/enjoyment of their
land.
- Nonphysical invasion  NOT an invasion of right to exclude
- Determining if invasion was substantial and unreasonable:
o Social Utility argument  What’s more economically valuable – the enjoyment
or free use rights?
o Individual Rights argument  People shouldn’t have to live under certain
circumstances/conditions.
o Bates Factors for Reasonableness  “reasonableness is a function of the
manner in which, and the place where D’s business is conducted, and the
circumstances under which D operates.” (from Honeywell case)
 Priority of location
 Character of the neighborhood
 Nature of the alleged wrong
 Balance gravity of the harm to P against the utility and
meritoriousness of D’s conduct.
- Private nuisance v. public nuisance
Entitlements: Court’s resolve nuisance problems in 4 ways:
- 1. Privilege: D is at liberty to engage in an activity on his property even though it harms P.
o If P wants D to stop, P has to persuade him (pay him off)
- 2. Strict Liability: P has absolute right to be free from harm caused by D.
o If D wants to continue activity, D will have to pay P
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3. Reasonableness: Not all or nothing  D authorized to engage in harmful activity if it is
deemed to be reasonable, but not if conduct and/or harm caused is unreasonable.
o Requires policy judgment about legitimacy of act
4. Prior Use: prior appropriation grants right to commit harmful activity to persons who
established first use.
o Adverse Possession grants right only after use had continued for statutory period.
Remedies:
- 1. Dismissal: If solution is privilege  P’s complaint will be dismissed.
- 2. Damages: Compensation for harm already done.
o Cost of restoration  repairing damage and bringing property back to prior state.
o Diminution in market value of property
- 3. Injunction: order telling D to stop. Can be stopped altogether, to commit no further
action in the future, or to remedy the harm already done.
- 4. Purchased injunction: When societal costs of D’s harmful activity outweigh benefits,
but may be unfair to place financial burden of stopping on D.
Ronald Coase  Father of law and economics
- Focuses on the utilitarian approach to nuisance:
o Get rid of all moral judgments and look to see reciprocal harms:
 What happens if injunction is granted vs. what happens if it isn’t?
COMMON LAW ANALYSIS vs. RESTATEMENT ANALYSIS:
-
Common Law:
o P gets injunction when D’s conduct is unreasonable (more social harm than
good) and causes substantial harm to P.
o P gets damages (no injunction) when D’s conduct is reasonable but harm to P is
so substantial that its unfair to burden P with costs of D’s socially useful conduct.
o P gets no remedy if (1) harm to P is NOT substantial; (2) D’s conduct is
reasonable and its not unfair to impose costs of D’s activity on P; OR (3)
imposition of damages would put D out of business and avoiding this result is
more important than preventing harm to P.
-
Restatement: (see flowchart)
o 1. Has D invaded the use and enjoyment of P’s land?
 If YES  keep going.
 If NO  no nuisance.
o 2. §829(A): Is harm severe and greater than P should be required to bear
without compensation?
 If YES  nuisance liability on D. (suggested remedy = money damages)
 If NO  go to 3.
 (Start with this because if harm is severe, P gets compensation
regardless.)
 (Certain harms may be so severe as to require a holding of
unreasonableness as a matter of law without regard of utility)
o 3. §826(b): Is harm serious and could D still afford to continue the activity
after compensating for this and other similar harms to others?
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If YES  nuisance liability on D. (suggested remedy = money damages)
If NO  go to 4.
 (Serious harms are less than severe harms. Give money for serious
harms but not if that puts D out of biz.)
o Ex. Harm from Jost v. Dairyland would be an § 826(b)
judgment.
o 4. §826(a): Does gravity of harm outweigh utility of D’s conduct?
 If YES  nuisance liability on D. (suggested remedy = injunction)
 If NO  then no nuisance liability on D.
 (This is the balance of utilities fallback provision)
 (P gets two chances to prove seriousness/severity of harm [via
rights based approach] before gong to utilitarian approach)


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-
-
§827: Gravity of harm: factors involved:
o Extent of harm
o Character of harm
o Social value law attached to type of use or enjoyment invaded
o Suitability of particular use/enjoyment invaded (character of locality)
o Burden on person harmed to try to avoid the harm
§828: Utility of conduct: factors involved:
o Social value law attaches to primary purpose of conduct
o Suitability of conduct to character of locality
o Impracticability of preventing/avoided the invasion
§941: Injunction or damages?
o Consider relative hardship on parties  hardship liked to result to D if injunction
is granted and hardship likely to result to P if injunction is denied
o Balancing of equities  consider who caused harm, if P came to nuisance, motives
etc.
COMING TO THE NUISANCE:
Pendoley v. Ferreira: (coming to the nuisance / suitability of conduct to character of locality)
- D’s operated a piggery, which made smell in neighborhood. Neighborhood became more
suburban (less rural) and more people kept moving into the neighborhood even though
it smelled (P’s came to the nuisance). D’s were not negligent in operating piggery, but still
found to be a nuisance.
o CAN be a nuisance without being negligent.
o Some courts will hold that coming to the nuisance bars recovery  here, if court
had ruled for piggery, the community wouldn’t have developed (policy
justification)
 Prioritizes enjoyment of use of homes over economic approach.
o FAULT DOES NOT ALWAYS MATTER  here, D’s not at fault but P’s are and D is
still enjoined.
o Priority of location/occupation  Who was there first? Who is better suited to be
there?
HYPERSENTIVE USE:
Page County Appliance v. Honeywell:
- D’s computer radiation damages P’s television signals.
- D’s defense  P’s are hypersensitive use
o Hypersensitivity = defense to private nuisance
10
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o Case remanded for jury to decide if P’s use is hypersensitive.
RULE: Lawful activity constitutes a nuisance if it unreasonably interferes with
another’s enjoyment of property.
Court considers Bates Test: (these factors can always be considered in nuisance actions)
o 1. Priority of location.
o 2. Character of the neighborhood.
o 3. Nature of the wrong.
o 4. Character and gravity of resulting injury.
o 5. Balance against utility and meritoriousness of D’s conduct.
RIGHTS-BASED APPROACH:
Jost v. Dairyland Power Cooperative
- P sues D because D has increased coal burning, which discharged gas/dust and dust has
settled on their crops, hurting vegetation and diminishing land value. P’s seek money
damages.
- D args: We weren’t negligent and social utility of power plant outweighs gravity of harm
to P.
o Ct REJECTS  we use rights-based approach in suits for damages (no weighing of
utility)
 RULE: “Wrongfulness is in acts themselves, rather than in the failure to
use the requisite degree of care in doing them. Interruption of
enjoyment and destruction of comfort gives rise to COA”.
UTILITARIAN APPROACH:
Boomer v. Atlantic Cement 
- Settled that D causes nuisance: issue is whether remedy should be damages or
injunction?
- P arg: We want injunction and damages.
o We were here first and the extent of health harm from dust and smoke is
unknown.
o Damages condones D’s conduct and licenses a continuing wrong.
o Whalen Rule: Where nuisance has been found and where there’s substantial
damage shown, an injunction should be granted.
- D arg: We should have to pay damages.
o We have a lot of employees and make a lot of $$$ and consequences of shutting
down would be severe.
o Money damages is a way of complete relief – it’s internalizing the damage caused.
- Ct says: Grant injunction unless D pays permanent damages to P which would
compensate them for total economic loss, past and present.
o Permanent damages = runs with the land
 Right to pollute attaches to the land so if P sells to X, X cannot sue D.
Judgment precludes recovery by future P’s or their grantees.
PUBLIC NUISANCE:
Spur Industries v. Del E. Webb
- Del Webb building upscale development that is encroaching on Spur’s feedlot. Very
smelly, lots of bugs, lots of manure.
- Claim for public nuisance differs by scale because it affects a large number of people or
an entire community.
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o RULE: Where public interest is involved, Ct’s will go much further to
give/withhold relief in furtherance of public interest than they might when
only private interests are at stake.
Ct grants Del Webb a purchased injunction: Spur has to leave, but Del Webb has to pay.
INTERFERENCE WITH LIGHT & AIR:
-
-
Fontainebleau v. Eden Roc:
o P wants to build a tower but it will cast a shadow on D’s pool area.
 General Rule: one must use his property so as not to injure the lawful
rights of another  BUT there is NO LEGAL RIGHT to free flow of light/air
from adjoining land.
o RULE  INTERFERENCES WITH LIGHT AND AIR ARE WHOLLY EXCLUDED
FROM NUISANCE ACTIONS PER SE.
 Some courts will enjoin spite fences
Prah v. Maretti:
o P owns solar panel house and D purchased land next to him to build a house. P
told D that building a house there would interfere with the functionality of his
solar panels but they could not reach an agreement over where to build the house.
 ISSUE = P’s interest in access to sunlight vs. D’s right to develop his land,
which he owns from earth to sky
 Can P overcome Fontainebleau Rule?
o YES!
 Private nuisance law has flexibility to protect
landowner’s rights of access to sunlight and another’s
right to develop land.
 Society has increasingly regulated use of land by
owner for general welfare.
 There’s significance to the sunlight beyond
aesthetics.
 The policy of favoring unhindered private
development is no longer in harmony with societal
realities.
 Very productive use of sun  solar panels for heating.
o Ct does not adopt Fontainebleau rule and instead opts to
adopt a balancing test.
 RULE: Blockage of light for non-aesthetic (functional/energy)
use may be grounds for a private nuisance claim.
 Dissent argues that this is a hypersensitive use. (P can’t make nuisance out
of D’s conduct which would otherwise be harmless.)
NUISANCE POLICY ARGUMENTS: see book pg. 412-421
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ZONING LAWS  TO AVOID CONFLICTING/INCOMPATIBLE
LAND USES THAT MAY RESULT IN NUISANCE
Role of Nuisance Doctrine and Land-Use Agreements: Courts must balance free use and
development of property against limits on development to protect security of neighboring property
owners and community interests.
Zoning = top-down, ex ante, comprehensive, long-range land use planning.
- State governments have police power to enact and enforce regulations promoting public
health, welfare, and safety.
- Delegate the police power to municipalities to regulate land use through zoning enabling
acts.
o Zoning by municipalities:
 Use Zoning  divide municipality into districts and regulate kinds of uses
allowed within each district
 Ex. Residential, agricultural, commercial industrial.
 Zoning could have prevented most of our nuisance cases!
 Area Zoning  Regulates size of lots, height of buildings, etc.
 Ex. Height restrictions, minimum lot size requirements, setback
requirements
TAKINGS LAW  what constitutes a “taking”?
When is state using its police power vs. when is what they’re doing a taking?
Exercise of Police Power = Regulation does not count as a taking and state doesn’t have to pay.
VS.
Taking = State takes your property  must do so for public use (purpose) and must pay just
compensation.
Challenges to a Taking:
1. This constitutes a taking because you took my property not for public use.
2. This constitutes a taking because you took my property and didn’t give me just
compensation.
ANALYSIS:
-
-
Per se / categorical taking?
o Government mandated permanent physical invasions of property. (Loretto v.
Teleprompter Manhattan CATV Corp.)
o Regulations that completely deprive an owner of ALL economically viable use of
property. (Lucas v. South Carolina)
 Still not a compensable taking if state is exercising its police power /
preventing a nuisance.
If not per se / categorical taking: (see pg. 1120-1121)
o Ad hoc factual analysis to determine if justice / fairness requires
compensation.
 Consider factors:
 Character of government action
o More like physical invasion by government = taking
o Singling out owner to bear burden = taking
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o Programs adjusting the benefits and burdens of economic
life to promote the common good = average reciprocity of
advantage  not a taking
o Is regulation legitimately preventing an owner from harming
others or is it illegitimately requiring owner to contribute a
benefit to the community?
 Economic impact of government action
o Does regulation deprive property owner of all economically
viable uses of land?
o The greater the diminution in value, the more likely the
regulation will be a taking.
 Interference with property owner’s reasonable investmentbacked expectations.
o Regulation is more likely to be a taking if citizen already
invested substantially in reasonable reliance on existing
statutory/regulatory scheme – like vested rights.
 But under Palazzolo  if regulation came into effect
before owner acquired title, not a taking.
o Less likely to be a taking if regulation prevents owner from
realizing an expected benefit in future.
o If a taking has already been established (like eminent domain):
 Does the taking satisfy a public purpose under Kelo? AND
 Have the parties been afforded just compensation?
Character of
Government Action
Economic Impact
Interference with
Reasonable
Investment-backed
Expectations
Summary of Takings Factors
Likely to Require Compensation
Legit Police Power – No Compensation
-Deprivation of a core property right such as right -Regulation of property use in a manner that
to pass on property at death
achieves average reciprocity of advantage
-Forced permanent physical invasion of property
-Limitation on property use as designed to
-Extraction of a benefit for the good of the
protect the community from harm or to respond
community of a forced transfer of property right
to negative externalities
from A to B
-Choice between incompatible property
interests
-Regulation denies owner any economically
-Regulation leaves owner with an economically
viable use of land
viable use of the land or a reasonable return on
-Regulation destroys almost all the value of
owner’s investment
property in a manner unjustified by sufficient
-Diminution in value is justified by a sufficiently
public interests
strong public interest in protecting public from
harm
-Interferes with vested rights such as investments -Imposes an opportunity loss – loss from
based on prior regulatory approvals or laws
benefits in the future
unless those regulations can be justified as
-Change in law is one that could/should have
preventing a nuisance or other harm caused by
been anticipated such that owner’s reliance was
property use
unreasonable
-Interferes with an existing present use of the
-Regulation of contractual relationship rather
property
than a forced transfer of property interests from
one person to another
CONSITITUTIONAL AUTHORITY FOR ZONING:
Village of Euclid v. Ambler Realty Co.
- SCOTUS upheld power of states to enact zoning laws that limit development rights and
buyer suffered 75% reduction in value of land as a result of the re-zoning after he had
already purchased the property.
14
-
o Broad right  but when it goes too far it can constitute a TAKING.
 5th Amendment: “Takings Clause”  Private property shall not be
taken for public use without just compensation.
 14th Amendment: States shall not deprive any person of property without
due process of law
 Incorporates Takings Clause to apply to the states
th
 10 Amendment: Powers not delegated to the United States by the
Constitution are reserved to the states respectively, or to the people
 States retain/enjoy general police power to regulate property to
promote general public health, welfare, safety.
o Power to zone + regulate land
Whether regulation affecting property rights is non-compensable exercise of
police power OR compensable taking?
o Police power = regulation to protect public health, safety, welfare
 Non-compensable
o Compensable taking = regulation goes too far and results in a taking for
which the owner must be compensated or the statute must be rescinded
 Eminent domain is when government admits it’s a compensable
taking
o GENERALLY  so long as the zoning ordinance is not arbitrary and unreasonable
and has a substantial relation to health/welfare (police power), SCOTUS will
uphold the zoning ordinance.
RATIONAL-BASIS SCRUTINY TEST (general rule) / VESTED RIGHTS:
Stone v. Wilton
- RULE: land use restrictions that are reasonably related to the promotion of health,
safety, morals, or general welfare repeatedly have been upheld.
o Statute CANNOT be arbitrary and unreasonable  has to be related to
health/safety/welfare.
o Court will apply higher scrutiny if the claim was racially discriminatory AND/OR if
P has a vested right in zoning as it existed when they purchased the property.
 Vested right = P needs to show:
 Substantial development/improvement/investment to get a vested
right.
 P’s got financing and talked to architect, but sought no construction
bids and no materials  NOT ENOUGH for vested right.
 Many states require grant of building permit before they will find a
vested right.
NO BENEFIT TO PRIVATE PARTIES RULE:
Pennsylvania Coal Co. v. Mahon
- State passes a law saying mining companies can’t mine in a way that undermines the
ability of the land to support surface structures in residential areas. Private property
owner tries to sell rights to a mining company to mine underneath his land, but state says
no: this is not a right that you can K away.
- Holmes Majority:
o “If regulation goes too far, it’s a taking”  If there were a common public
damage, state would have power to regulate. If it benefits private party,
state cannot regulate.
15


If regulation only remedies private harm  taking (requires
compensation)
If regulation remedies public harm  no taking
STATE CAN CHOOSE RULE:
Miller v. Schoene:
- It is within state’s policy power to choose between two kinds of property,
especially when there is a public interest in one.
o Case about apples and the VA statute that required cedar trees be cut down so the
plant disease couldn’t affect the apple trees.
TAKINGS LAW  what constitutes “public use”?
Kelo v. City of New London  PUBLIC USE
- Whether city’s decision to take property for economic development is a “public use”?
- Public Use = Public Purpose
o Using eminent domain for economic development blurs line between public and
private takings.
o Govt’s pursuit of a public purpose will often benefit individual private parties.
Public end may be better served through private enterprise than though govt.
- MAJORITY:
o Land isn’t entirely for general public’s use, but we reject the notion that public use
literally means use by the public.  Adopt broad interpretation of public use as
“Public Purpose”
 Deference to legislative judgments
 Taking should be upheld as consistent with public use as long as it is
rationally related to a conceivable public purpose.
- Kennedy Concurrence:
o There may be a higher standard of scrutiny in some categories of takings, but not
just because the purpose is for economic development.
 Private benefits and characteristics intended use must substantially
predominate over private nature of that use.
- O’Connor Dissent:
o Pre-condemnation use of property has to be an affirmative harm to society; being
a “distressed” (and not yet blighted) area isn’t a harm to society.
 Adopt a bright line rule that economic development is per se excluded from
definition of public use.
 Distinguishes from Berman and Midkiff.
- Thomas Dissent:
o Public use = public use  the public has to actually use the property.
 Public purpose ruling by the majority is wrong – uses textual argument by
looking at other uses of word ‘use’ in Constitution.
*** Remedy after Kelo is to go to state legislatures and ask that they adopt more protective statutes
for takings.
- Almost all states now have statutes that limit the power of municipalities to take
property for economic development.
16
TAKINGS LAW  what constitutes “just compensation”?
General Rule:
- Just compensation = fair market value (FMV)
o State will not compensate for sentimental value of property
o State will not compensate for moving costs, business goodwill, or going-concern
(advantages inherent to acquiring an operating business instead of starting a new
business)
 Rationale is that these would all be too subjective to quantify.
o If state taking 40/100 acres, they must compensate owner not only for the FMV of
40 acres, but also for any reduction in value to remaining 60 acres, caused by
taking the 40.
 Severance damages
o If taking increases the value of the remaining 60 acres by providing the owner a
special benefit not accrued to the public, courts will usually offset severance
damages by amount of special benefit.
 Special benefit
**Some states have passed statutes requiring super-compensation of %150 FMV.
Lucas Formulations:
- Scalia: Where state seeks to sustain regulation that deprives land of all economically
beneficial use (without paying compensation) any limitation so severe cannot be newly
legislated (without compensation) but must inhere in the title itself, in the restrictions
that background principles of the state’s law of property and nuisance already in place on
land ownership.
o Such a law must do no more than duplicate the result that could have been
achieved in the courts, under nuisance law.
- Kennedy: Nuisance exception to the rule that state must pay if it deprives land of all
economically viable use is too narrow and inflexible constraint on the legislature.
o Where a taking is alleged, based on regulations that deprive the owner of all value,
the test must be whether the deprivation is contrary to reasonable investment
backed expectations.
 Under Lucas  this test was met.
SERVITUDES  AGREEMENTS BETWEEN PROPERTY OWNERS
REGARDING USE OR OWNERSHIP OF THEIR LAND
Land use agreements between private parties that:
- Authorize a non-owner to enter your property for a specific purpose. (affirmative)
o Ex. Right of way easement
- Embody property owner’s promise to do or not to do something on her own property.
(negative)
o Ex. Easement for light and air
o Ex. Promise to maintain a particular type of use on one’s property / promise not
to compete.
Types:
- Easements
17
-
Real Covenants
Equitable Servitudes
EASEMENTS 
Easement = limited right to use or control the use of someone else’s property
- Ex. Right of way where there’s an obligation on owner of land on which road sits to allow
neighbor to use road for passage
- Easements are generally irrevocable
TERMINOLOGY:
- Servient Estate  property burdened by easement
- Dominant Estate  property benefitted by easement
- Appurtenant Easement  easements attached to land ownership and owner by
whoever owns the dominant estate.
o When dominant estate is subdivided, everyone gets to use easement.
o When dominant estate is transferred, benefit of easement is transferred.
- Easement in Gross  not appurtenant = benefit is not attached to land
o Held separate and apart from ownership of land.
 May be commercial or personal
 Sharing benefit/division: If the easement is exclusive of the servient owner
(servient owner doesn’t use it or has no right to use it), then it can be
apportioned and used by others. If servient owner has some right to it, it
cannot be apportioned. (Henley)
 Transferring benefit: more likely transferrable if commercial.
- TEST TO DISTINGUISH APPURTENANT FROM IN GROSS IS INTENT OF GRANTOR.
o Presumption in favor of appurtenant because you can ask neighbors if
there’s an appurtenant easement; you can’t ask the entire world if someone
has a personal easement when buying property. (Lupo)
RUNNING WITH THE LAND:
- What does “running with the land” mean?:
o Any future owner of the dominant estate is benefitted by easement AND
o Any future owner of the servient estate is burdened by the easement.
- In order for burden of express easement to run with the land: ELEMENTS
o 1. Easement must be in writing when created.
o 2. Original grantor must intend for future owners of servient estates to be
bound by easement.
 Intent can be clearly stated to run with the land or if it’s ambiguous, intent
can be implied.
 If intended to be permanent (ex. right to lay utility lines), then the courts
hold that it was intended to bind future owners.
o 3. Subsequent owners of servient estates must have notice of easement.
 Actual notice = they actually know
 Inquiry notice = visible signs of use such that they should ask
 Constructive = deed conveying is found in registry, reasonable buyer
would know.
- In order for benefit of express easement to run with the land: ELEMENTS
o 1. Test is intent of grantor.
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-
 If it runs with the land  appurtenant easement
 If it doesn’t run and there’s no dominant estate  easement in gross
Easements created by implication, necessity, and estoppel are usually held to run
with the land if:
o They were intended to do so (if intent can be determined) AND
o Are reasonably necessary for enjoyment of dominant estate.
Methods for Creating an Easement:
- Express Easement = easement created by an express agreement of the parties
o ELEMENTS:
 In writing (statute of frauds)
 Signed by the grantor
 Either part of deed of sale of property affected by the easement or in a
separate deed.
 ALL FORMALITIES MUST BE MET FOR AN EXPRESS EASEMENT
- Implied Easement = formalities are excused
o EASEMENT BY ESTOPPEL (Holbrook)= court may prevent owner from
revoking license if owner grants licensee right to invest in improving property
OR induced him to act in reasonable reliance on license.
 Owner is estopped from revoking license
 Court is siding against grantor’s intention  protection for those using the
easement
 Holbrook v. Taylor: D has P’s permission to use the road. When D
are building their home, they’re using road through D’s property
(widened and graveled the road). In 1970, P wants D to sign
document to continue using it, D doesn’t, so P puts up a chain and
no trespassing signs. D sues for declaratory judgment that they have
easement by either prescription or estoppel.
o Prescription doesn’t work because they had permission so
not adverse/hostile.
o HOLDING: Use of roadway by D + maintenance of the
roadway + all with consent of P =3 license to D can’t be
revoked.
 Estopped because of reliance and added value to road.
o EASEMENT FROM PRIOR USE (Granite)= When owner of entire tract of land
splits up parcels without mentioning the incidental uses of parcels sold.
 ELEMENTS:
 1. Common ownership of claimed dominant and servient parcel and
subsequent transfer, separating ownership; AND
 2. Before transfer, owner used part of united parcel for benefit of
another part and the use was apparent/obvious, continuous, and
permanent; AND
 3. Claimed easement is necessary/beneficial/convenient to
enjoyment of parcel retained by grantor.
o NOT absolute necessity.
o Granite Properties v. Manns: P used to own the entire tract of
land, then conveyed part of it to D. Shopping center located
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on property uses D’s property for trucks to drive through
because very difficult to turn around in limited area. D seeks
to have use discontinued. (Easement was never specific in
land agreement.)
 HOLDING: easement is granted.
 Argument between the parties centers over
competing policies of “formalities should be
met” vs. “prior use creates expectation of
continued use and allowing us to continue has
efficiency benefits”.
o EASEMENT BY NECESSITY (Finn) = Where an owner of land conveys a parcel
of it which has no access in/out except over remaining lands of grantor or
over land of strangers, a way by necessity exists over remaining lands of
grantor.
 ELEMENTS:
 1. Prior common ownership.
 2. Conveyance of landlocked portion of the ownership.
 3. Landlocked either through impossibility (mountains/cliff) or land
of strangers.
o Necessity here = absolute necessity.
 Requires prior common owner
 This right by necessity may lay dormant through several transfers of title
and yet still pass down through dominant estate and can be exercised at
any time.
 Finn v. Williams: D used to own entire parcel. D conveyed part to a
guy who eventually conveyed it to P. P says only way into and out of
their land to a highway is via D’s road and D is denying them access.
o HOLDING: easement is granted.
 Necessity = absolute necessity
 Typically policy is against landlocked parcels because
they are such an efficiency problem.
o Easement by Prescription (Nome 2000 & Community Feed) =
 ELEMENTS:
 1. Actual use that is
 2. Open and notorious
 3. (Need not be exclusive)
 4. Continuous
 5. Adverse/hostile (without express permission from record owner)
 6. For the statutory period.
Methods for ending an easement:
- Easements last forever unless they’re terminated:
o 1. By agreement in writing OR
o 2. By their own terms OR
o 3. By merger  servient estate buys dominant estate OR
o 4. By abandonment  owner of easement showed intent to abandon OR
o 5. By adverse possession or prescription OR
o 6. By frustration of purpose
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Determining whether an easement is appurtenant or in gross?
- If written language is ambiguous as to intent  consider the situation of the party’s
surrounding circumstances at the time the writing was executed and the practical
construction given by the parties by conduct or admissions to determine their
intent.
o Evidence for personal / in gross easement:
 Names P specifically and gives specific purpose.
o Evidence for land / appurtenant easement:
 Ingress, egress, utilities.
 “to obtain access to the land.”
 Green v. Lupo: P used to own all of the land. D buys northern part
via real estate K. As D is paying off K, P wants an easement over D’s
property once they pay it off. D agrees but P start using easement
for motorcycle throughway of their tenants. D objects because
thought that the easement was personal (in gross) for P.
o P arg: this easement is appurtenant because its for
ingress/egress and its to benefit the land.
o D arg: this easement is personal/in gross because we
granted it to P.
 HOLDING: this is an appurtenant easement that runs
with subdivided parcels.
 Equitable Additions to Holding: don’t grant D
an outright ban of the motorcycle usage, but
the use of easement by P/beneficiary can’t be a
nuisance. (substantial, unreasonable
interference with use/enjoyment of land).
 Presumption in favor of appurtenant.
o Equity Rule: Servient owner is entitled to impose reasonable restraints on a right
of way to avoid a greater burden on the servient owner’s estate than that
originally contemplated in easement grant, so long as restraints don’t interfere
unreasonably with the dominant owner’s use.
Appurtenant Easements: (easement for the property as opposed to easement for the person)
- Easements attached to land ownership and owned by whoever owns the dominant
estate.
- Preferred over in gross easement.
- Transferring benefit  When dominant estate is transferred, benefit of easement is
transferred.
- Sharing benefit/divisibility  When dominant estate is subdivided, benefit of easement
is shared/divided. (Cox)
o Cox v. Glenbrook Co.: Quill easement was granted to Quill by Glenbrook in 1938
for a right of way with “full right of use over roads of grantor as now located. To
have and to hold forever.”  Appurtenant easement that’s intended to run with
the land.
 Quill easement subsequently passed down to Cox, who wants to subdivide
the property into 1 acre parcels to sell, but only 1 road of access which is
only wide enough for one vehicle.
 Issue here = What is the scope and extent of the easement?
 4 Part Ruling:
21
o 1. Privilege of use is not restricted to the terms of the
grant  privilege is appurtenant to dominant estate and
may be enjoyed by all who succeed to the possession,
either in whole or in part (subdivisions).
o 2. Owners of easement ma maintain, repair, and improve
in a manner that is reasonably calculated to promote the
purposes for which the easement was created provided
that:
 a. Such maintenance, repair, and improvement in
confined to the area within the exterior borders of
the easement as it existed when it was granted.
 Owners of easement may not widen the
way.
o 3. Owner of servient estate has right to relocate the
easement at his own expense, including the right to
barricade the original way, but not without creating a
new one.
o 4. Owners of the easement may not cause an undue
burden on the servient estate or cause an unwarranted
interference with the independent rights of others who
have similar right of use.
In Gross Easements: (easement for the person as opposed to the property)
- Easements for which the benefit is not attached to the land, but is attached to a
commercial purpose or person.
- More likely to be able to transfer the benefit if commercial.
o Henley v. Cablevision of St. Louis: Homeowners association gives in gross
easement to utility companies, SW Bell and Union Electric to put up phone and
electric wires. Both SW Bell and Union Electric are eventually acquired by
Cablevision, who wants to put up a wire on P’s property  P sues for injunction.
 Issue here = whether these easements are exclusive (of owner of the
servient estate) and therefore apportionable by utilities to Cablevision?
 RULE: Where servient owner (Homeowners association) retains
privilege of sharing benefit conferred by easement, its common
and non-exclusive, thus can’t be apportioned by easement owner.
 RULE: If rights granted to easement owner are exclusive to that
owner, apportionment is OK.
 RULE: Owner of an easement may license third persons to use its
right of way for purposes not inconsistent with the principle use
granted.
o Here  Court says rights granted via easement were
exclusive of the homeowners association because they didn’t
even have a proper license to hang necessary wires.
o Doesn’t matter that easement doesn’t specifically say TV
wires because within the natural progression of the granted
use. (not an extra burden on the property)
- If grant was exclusive of grantor, then grantee can share within the scope of the
easement.
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REAL COVENANTS & EQUITABLE SERVITUDES 
REMEMBER  if you can’t get a real covenant because of privity problem, you can still get equitable
servitude!
-
Promises made by landowners to use or not to use one’s land in a particular way.
o Includes affirmative obligations to do something on one’s land.
o Includes broad range of negative restrictions regarding the use of one’s own land.
 Concerns the USE and OPERATION of the land itself.
- Enforceable by and against succeeding owners of the benefitted land and burdened land.
- Can burden the land forever!
o In order to burden land forever  must be a countervailing benefit to the
other land.
 Countervailing benefit = if original covenanting parties are in a
relationship in which that have mutual interest in property / privity
of estate.
Difference between Real Covenants and Equitable Servitudes  REMEDIES
- Strict rules for real covenants tend to be relaxed by equity courts:
o Real Covenant  remedy for breach = damages
o Equitable Servitude  remedy for breach = injunction
-
Strict rules for enforceability: ELEMENTS for Real Covenant (elements for equitable
servitude are the first 4  privity drops out)
o 1. Writing  covenant must be in writing in the originating documents.
o 2. Notice  the party to be bound must have notice of the covenant (actual,
inquiry, or constructive)
 This is for the burdened side, benefitted side obviously has notice because
they’re taking advantage of the benefit.
o 3. Intent to Run  the original covenanting parties must intend the covenant to
be binding upon their successors.
 Presumption in favor of intent to run so long as “touch and concern”
element is met.
o 4. Touch and Concern the Land  the subject matter of the covenant must
“touch and concern the land”
 Promise must have something to do with the use and enjoyment of land
(ties to ownership and occupancy of the land) AND
 Promise must affect the market value of the land (increasing value of
benefitted land or decreasing value of burdened land) OR
 “Affect the quality, value, or mode of enjoying the property”
 Examples of touch and concern:
o Promise calling for promisor to do something physical in
relation to his land
o Covenant not to compete counts!
 Examples of touch and concern not met:
o Promise just to pay money and doesn’t really concern the
land.
o 5. Privity of Estate  the parties must be in a relationship where there is mutual
interest in the property.
23



-
Horizontal Privity =
o Original covenanting parties must be in a certain type of
relationship evidencing their mutual interest in the land
(seller-purchaser or lessor-lessee) AND
o Covenant is contained in documents creating these
relationships.
 MUST be part of a conveyance of another property
right, two neighbors can’t just agree to bind both of
their parcels.
 Can get around this by conveying to a lawyer who
conveys it back to them with the covenant in it.
 Vertical Privity = Relationship between an original covenanting
party and the subsequent owner of the parcel
o For strict vertical privity: P1 must transfer full and
entire property right in burdened parcel to P2 and
cannot retain future rights in land.
 Strict vertical privity is NOT met when original
covenanting party (P1) transfers less than all of her
property rights in burdened parcel to P2. (lease, life
estate, etc.)
 DON’T NEED TO SHOW PRIVITY OF ESTATE TO PROVE AN
EQUITABLE SERVITUDE AND GET AN INJUNCTION  still need to
show first 4 elements.
FOR THE BURDEN OF A COVENANT TO RUN WITH THE LAND, ON THE
BURDEN SIDE  original covenanting party and successor to burdened
parcel must be in vertical privity AND original covenanting parties must be
in horizontal privity.
FOR THE BENEFIT OF A COVENANT TO RUN WITH THE LAND, ON THE
BENEFIT SIDE  original covenanting party and successor to benefitted
parcel must be in vertical privity AND original covenanting parties must be
in horizontal privity.
Whitinsville Plaza v. Kotseas: D owns several parcels in a strip mall. Trust purchases
Parcel A from D in reliance on their promise not to compete with their business as a
discount store and to use land for limited parcel.
o Trust sells Parcel A to P.
o D then leases out another parcel to CVS, a competing discount store.
o P sues CVS and Kotseas for damages (covenant) and injunction (equitable
servitude).
o Issue: Is covenant enforceable against CVS for an injunction or damages? Ie. Does
covenant satisfy the elements?
 Yes, writing is in the original document
 Yes, there was constructive notice
 Yes, language of covenant says it was intended to run
 Yes, touches & concerns the land because non-competes count
 Privity?
Original covenanting parties
(burdened land)
(benefitted land)
KOTSEAS ------------------------------------------------ TRUST
(lease)(sale)
24
CVS
Whitinsville Plaza
 Horizontal Privity is met  because between the two original parties,
there was a sale with a covenant not to compete included in the originating
document.
 Vertical Privity is NOT met  because Kotseas leased to CVS and thus
retained an interest in the land.
o Holding  Plaza CANNOT sue CVS for money damages (real covenant) because
vertical privity requirement is not met. Plaza CAN sue CVS for injunction because
there’s no vertical privity requirement for an equitable servitude.
-
Davidson v. Katz: NJ Supreme Court 8 part reasonableness inquiry:
o 1. Intent of the parties when the covenant was executed and whether the parties
had a viable purpose which did not at the time interfere with existing commercial
laws (such an antitrust) or public policy.
o 2. Whether the covenant had an impact on the considerations exchanged when the
covenant was originally executed.
o 3. Whether the covenant clearly and expressly sets forth the restrictions.
o 4. Whether the covenant was in writing, recorded, and if so, whether the
subsequent grantee had actual notice of the covenant.
o 5. Whether the covenant is reasonable concerning area, time, or duration.
 Covenants that extend into perpetuity or beyond terms of a lease may
often be unreasonable.
o 6. Whether the covenant imposes an unreasonable restraint on trade or secures
monopoly for the covenanter.
 This may be the case in areas where there is limited space available to
conduct certain business activities and a covenant not to compete burdens
all or most available locales to prevent them from competing in such an
activity.
o 7. Whether the covenant interferes with the public interest.
o 8. Whether, even if the covenant was reasonable at the time it was executed,
“changed circumstances” now make the covenant unreasonable.
Defenses to enforceability: from El di v. Bethany Beach
- Changed circumstances  conditions have changed so drastically that enforcement will
be of no substantial benefit to dominant estate.
- Relative hardship  hardship to servient estate is much greater than benefit to owner
of dominant estate.
- Abandonment  owner tolerated violations of covenant restrictions by others.
- Acquiescence  owner tolerate violations by servient estate owner.
- Prescription  violation for statutory period.
RACIALLY DISCRIMINATORY COVENANTS 
-
Historically, covenants were often used to limit/exclude sale or lease of property to
members of a particular race.
Now unenforceable under Constitutional, statutory, and common law.
o State Action Doctrine  where to draw the line between private and state action
25
14th Amendment: no STATE shall deny to any person within its jurisdiction
the equal protection of the laws.
 Shelley: judicial action = state action
 Civil Rights Statutes: in place today and would eliminate the possibility of
enforcing covenant that was racially based.
o Shelley v. Kramer: Owners of St. Louis neighborhood sign a covenant restricting
use/occupancy for 50 years to whites.
 8/11/45  P (black) bought deed to Fitzgerald’s parcel without
knowledge of covenant
 10/9/45  D brought suit saying P couldn’t take title.
 Requirements:
o Writing? Yes.
o Notice? Yes, constructive notice from purchase of land.
o Intent to run with land? Yes, for 50 years.
o Touch & Concern? Probably, but tough with racial concern.
o Privity of Estate? Agreements between neighbors are not
made simultaneous with land conveyance so no privity.
 D can bring suit because he is an “intended beneficiary” of the
restriction – person he brought land from was an intented signatory
to the covenant so they have standing.
 Trial Court  Finds that covenant was never final because it was the
intention of parties that it had to be signed by ALL owners in neighborhood
and it wasn’t.
 Supreme Court of MI  Covenant is OK because it’s private action not state
action.
 SCOTUS  reverses, saying actions of state courts are to be regarded as
action of state within the 14th Amendment.
 Grounds this holding in the argument that but-for the active
intervention by the state courts, P would have been free to occupy.
(nothing else in place that would bar them)

RESTRAINTS ON ALIENATION COVENANTS THAT IMPOSE
RESTRICTIONS ON THE ABILITY OF FUTURE OWNERS TO
TRANSFER PROPERTY ARE STRICTLY REGULATED & OFTEN
FOUND TO BE INVALID.
-
-
Restraints on alienation subject to basic test of reasonableness:
o Reasonableness determined by weighing utility of restraint against injurious
consequences of enforcing restraint.
o Traditional Rule  Restraints on alienation are void as unreasonable.
Covenants that require owners to obtain consent of grantor or developer are usually
struck down as unreasonable.
o This provision ensures that control over land goes to a current owner rather than
an absentee lord / dead hand.
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5 types of restraint on alienation:
o 1. Direct restraint on transfer
 Charitable Exception:
 Horse Pond v. Cormier: P is fish/game club and D is its member. P
put together covenant saying land shall not be alienated from them
unless 100% of club votes for it and club is dissolved. Since P
acquired the land it has become more residential (less conducive to
fishing/hunting.) P registered as a charitable corporation and
sought to do a land swap where they’d get new land more
conducive to their activities. D voted against the land swap which
blocked the transaction. P seeks to void the covenant as an
unreasonable restriction against alienation.
o RULE: Traditional rule is that restraints on alienation are
disfavored BUT where the covenant is imposed on a
charity, the Court is more likely to favor the restraint
because grantor wants gift/sale to charity to remain used
for charitable purpose.
 (Court remands to determine if P is a real charity)
o 2. Servitudes requiring consent of grantor or association
 NW Real Estate v. Serio: P wants to create a “desirable” neighborhood. P
deeds land to developer with agreement that the developed has to get P’s
consent for any sale in the next 5 years. P won’t grant sale to D. D sues
saying covenant is void for unreasonable restraint on alienation.
 Args for P: purpose of the restriction was to protect our investment
and the restriction is only for a limited time period.
 Args for D: You sold me a fee simple absolute and any restrictions
are repugnant to those rights. Selling promotes efficient use of the
land. We want the court to promote free marketability and
alienation of land and we can’t achieve those goals with these
restrictions.
o Holding  P loses.
o RULE: Restriction imposed was repugnant to alienation of
land. Covenant’s object was to deprive grantees of their
unrestrained power of alienation, which they should get
via absolute ownership. Big inefficiency problems.
 Riste v. Bible Camp: D divides parcels and sells it only to people who agree
to abide by tenants of church – impose several covenants including that
residents can’t be in conflict with practices of church (no work on Sunday)
and can’t convey land without grantor approval. P gets deed from parents
and wants to sell but D won’t remove the restrictions. P sues for
unreasonable restrain on land.
 RULE: Clause in deed prohibiting P from conveying land without
church approval, when grantor transferred fee simple estate is
void as repugnant to nature of estate in fee simple.
o Restrictions would be easier is Church was leasing the land
instead of selling it because wouldn’t be fee simple absolute
so less rights for the possessor.
o 3. Rights of first refusal
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Wolinsky v. Kadison: P owned unit 4D and K’d to buy 21F and sell 4D.
Board told P it was exercising its right of first refusal to 21F. P alleges that
board acted without affirmative 2/3 vote of owners as required under its
bylaws and that P was denied right to purchase because of sex and marital
status.
 RULE: Right of first refusal must be reasonably exercised.
Reason for refusal must be rationally related to protection of
association as set forth in its bylaws and cannot be
discriminatory.
o 4. Leasing restrictions
o 5. Restraints designed to keep housing affordable

ESTATES IN LAND AND FUTURE INTERESTS 
-
-
Landowners can divide property concurrently (husband and wife) or divide ownership
rights over time.
o Present estate holder has right to possess property while her property rights last;
future interest holder obtains right to possess property when/if the present
interest ends.
Present and future interests may be created by sale, lease, will, or trusts.
Future interests are used to control what is done with and/or who will own property in
the future, by defining ways to divide up property interests over time.
o If a restriction is imposed, the remedy for violation of restrictions is forfeiture of
ownership of property.
Fee Simple Absolute = right to possess land that extends indefinitely into the future.
Estate in Land = distinguished from each other primarily by the different times at which they end.
- When present interest holding dies (“To A for life”)
- When condition on possession of property is violated. (“To A, so long as no alcohol is sold
on land”)
Future Interests in Land = distinguished from each other primarily by the different times at which
they begin.
- When predecessor dies (life estate) or violates condition on possession of land
(defeasible fee):
o “To A for life, then to B”
o “To A for life, so long as no alcohol is ever sold on land. If it is, then to B.”
- May be created in grantor or 3rd party:
o “O grants Blackacre to A for life [default is that property reverts back to O upon
A’s death].”
 Present life estate in A.
 Future interest (reversion) in O.
o “O grants Blackacre to A for life, then to B.”
 Present life estate in A.
 Future interest (remainder) in B.
- Future interests exist from the moment they are created, but they don’t become
possessory until the happening of the event triggering the shift of property to future
interest owner.
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-
Most states now let you alienate and devise future interests  you can sell off your
future interest, but the person you’re selling to just gets what you got (may not be fee
simple absolute.)
Policy Concerns Regarding Estates in Land and Future Interests:
- Dead hand problems  owners seeking control of property long after die. This may
promote their interest and enhance alienability (more willing to give up property if they
can control it) but it may limit autonomy of future owners and clog real estate market.
o Goal is to balance interests of the dead with interests of the living.
- Hierarchy problems  Possibility that by imposing restraints on alienation and use,
owners will have the effect of concentrating ownership and excluding others.
o Ex. “O grants Blackacre to A and the male heirs of his body.”  this has uniformly
been declared void.
- Purpose of regulation of system of estates in land and future interests:
o Appropriately limit dead hand control
o Leave control of property more in the hands of the living than the dead
o Allow for dispersal of wealth and access to property, as well as efficient use of that
property so that decentralized marker system can function.
FEE SIMPLE INTERESTS:
-
-
Fee Simple Absolute  Property ownership without an associated future interest.
o Estate extends into indefinite future.
o Most complete interest in property that one can create  PRESUMED by law
o To create:
 “O to A”
 “O to A and her heirs”
 Language is technical in nature as “and her heirs” does not give A’s
heirs any interest in property, still just a fee simple absolute to A
(no actual rights to A’s heirs until A decides to (or not to) give them
some.)
o If A dies with will  goes to devisees.
o If A dies without will  goes to heirs (defined by intestacy
statute)
 “O to A in fee simple”
Defeasible Fees  Interests that terminate at the happening of a specified event (other
than the death of the current owner) technically could last forever if event never
happens.
o Associated future interest may be in grantor (O) or 3rd party (B).
 “O to A while used for residential purpose”
o 3 Kinds:
 1. If it transfers back to grantor automatically = FEE SIMPLE
DETERMINABLE
 Property is automatically transferred back to grantor if condition is
violated.
 Possibility of reverter (future interest in grantor)
 Created with words of duration:
o “O to A so long as/while used for residential purpose; if used
for nonresidential purpose, property shall automatically
revert to O.”
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-
o “O to A while used for residential purposes.”
o “O to A during residential use.”
 2. If grantor must assert right to get land back = FEE SIMPLE SUBJECT
TO CONDITION SUBSEQUENT
 Gives grantor discretionary power to terminate the grantees estate
after the happening of a certain event, not certain to occur.
 Future interest in grantor, with transfer upon O’s assertion or
property rights
 Right of entry (future interest in grantor); non-automatic forfeiture
 Created with words of condition:
o “O to A on condition that property be used for residential
purposes; in the event that it is no so used, O shall have right
of entry.”
 3. Transfers back to 3rd party automatically = FEE SIMPLE SUBJECT TO
AN EXECUTORY LIMITATION
 Only one type  transfer occurs automatically upon the occurrence
of event.
 Executory interest (future interest in 3rd party)
 “O to A so long as used for residential purposes, then to B”
o Difference between reverter in grantor (automatic) and rights of entry is statute
of limitations for adverse possession.
 Reverter starts automatically  if holder does nothing for statutory
period, title shifts to current possessor
 Right of entry doesn’t become possessory until holder asserts right of
possession  statute is triggered only when holder of right of entry
demands right of possession.
Life Estates  Interests held for life of designated individuals.
 “O to A for life, then to…”
 Future interest after life estate can be in grantor (O) or in 3rd party (B)
 If it’s in grantor O  REVERSION
o O to A for life [then back to O]
 If it’s in 3rd party B  REMAINDER
o O to A for life, then to B
 If life estate owner sells property to B, B gets what A had  interest in life
estate until A’s death.
Vested and Contingent Remainders:
- Remainders are contingent if it will take effect upon happening of event that is
contingent, and/or will go to person who cannot be ascertained at time of conveyance.
o To A for life, then to Hilary Clinton if she’s ever elected President.
o To Malia Obama for life, then to children of Malia Obama.
- Remainders are vested if both conditions are met:
o 1. Persons who are identifiable at time of initial conveyance AND
o 2. No conditions/contingencies upon taking possession (other than death of life
estate holder)
 To A for life, then to Hilary Clinton.
 Example: Evans v. Abney
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-
o Senator Bacon executed a will that devised City of Macon, GA
a tract of land, which, after death of Senator’s wife and
daughters, was to be used as a park and pleasure ground.
 Wife and daughters have joint life estate.
 City has a remainder.
 Life tenant  they can’t choose who will own
property after they die, they can transfer the
property, but only during and for their lives.
 Alienability  A can transfer park to B, but
then B has life estate for life of another (A).
Upon A’s death, B loses his interest in
property.
SAMPLE CONVEYANCES:
o 1. “O to A so long as A never operates a grocery store on property.”
 Fee simple determinable because of “so long as “
 A has  defeasible fee determinable
 O has  possibility of reverter (future interest in grantor)
o 2. “To A for life, then to B and heirs.”
 A has  life estate
 B has  vested remainder
 B’s heirs have  nothing right now (just saying that B’s remainder could
last forever in B)
 If B has will, B’s devisees get property.
 If B dies intestate, B’s heirs get it if they’re listed in intestacy statute.
Present Interest
Words Used to
Create
Future Interest
In Grantor A
Fee Simple
Absolute
Fee Simple
Determinable
Fee Simple
Subject to
Condition
Subsequent
Fee Simple
Subject to
Executory
Limitation
Life Estate
“To A”
“To A and Heirs”
“as long as”,
“while”, “during”,
“until”, “unless”
“Provided that”,
“On Condition”,
“But if”
Possibility of
Reverter
Right of entry
“until/unless…,
then to”, “but
if…then to”
“for life”
In 3rd Party
Executor interest
Reversion
Remainder
Fee Tail = Estate whose purpose is to keep property in family dynasty.
- Traditionally created a set of life estates in A until blood line ran out, at which point
property would revert to O or O’s heirs.
- Because of effect on marketability, fee tail has been subsequently abolished in US.
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Trusts = Grantor conveys property to trustee for benefit of a 3rd party.
- Trustee holds legal title to the property / beneficiary holds equitable title.
- Trustee, as holder of legal title, has power to sell property and reinvest proceeds in other
assets if doing so is in best interest of beneficiaries, unless settlor intended property not
to be sold.
o Income of trust assets is paid to beneficiaries.
- All property interest can be created in both a legal and equitable form:
o Legal life estate  “To A for life, then to B”
o Equitable life estate  “To X in trust for A for life, then to B”
Interpretation of Ambiguous Conveyances:
-
-
Courts will try to implement intent of grantor where conveyance is ambiguous.
When intent is still unclear  policy considerations
Presumptions:
o Against finding a future interest.
o Against forfeitures – want to give fee simples!
 Promotes interest of current owners, social interests in deregulating
economic activity.
If choice between future interest and “mere precatory language” (purpose not
intended to be binding)  side with non-binding language
o Charity exception
If choice between covenant and future interest  side with covenant because it keeps
title with current owner.
If choice between fee simple determinable and fee simple subject to condition
subsequent  side with condition subsequent because it keeps title with current owner
(at least until grantor exerts right of entry).
If choice between life estate and fee simple  side with fee simple.
Hierarchy of Interpretational Preferences: (most preferable to lease preferable)
o Fee Simple Absolute with mere “precatory language” (Wood)
o Fee Simple Absolute with Enforceable Covenant
o Defeasible fee (may last forever, may be cut short)
 Fee Simple Subject to Condition Subsequent  forfeiture not automatic
 Fee Simple Determinable  forfeiture automatic
o Life Estate  definitely involves forfeiture
Wood v. Fremont County  fee simple xyz vs. defeasible fee?
- P conveyed land to D in 1948 to build a county hospital. P now claims deed created either
a fee simple determinable or a fee simple subject to condition subsequent with reversion
in P if land ceased to be used to hospital.
o Deed said “tract is conveyed to county for purpose of constructing and
maintaining a county hospital in memorial of armed servicemen”.
o Hospital existed until 1984 when it moves to a new facility and land was sold.
- Issue: whether cessation of the county hospital operation by sale of facilities constituted
occurrence of an event that divested county of its estate in property, conditionally
conveyed?
o Holding: Did not create a fee simple determinable or fee simple subject to
condition subsequent because the language of the deed was not specific enough 
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so this is a fee simple absolute because the presumption favors us finding one, if
possible.
 ***Test is usually intent of grantor but here we know the intent (P is still
alive to say what he wanted) and Court still rejects  court is sending the
message that you need to draft careful conveyances.
 Preference for fee simple over defeasible fee because there’s a preference
for no restraint on alienation.
 P could have ensured that the land was operated as a hospital via
covenant.
Edwards v. Bradley  interpreting a will?
- Lilliston will: “I give and devise my farm to my daughter Margaret. All gifts made to
Margaret are conditioned on her keeping the gift free of encumbrances. In the event she
attempts to encumber or sell her interest, her interest shall cease and become vested in
her children: Betty Beverly, J, B, J, J.”
- 1979: Margaret seeks to have children consent to selling farm. All consent except
Beverly.
- Margaret’s will purports to leave Beverly $1.00 and directs that farm proceeds be divided
among the 5 other children.
- Beverly sues, claiming an interest in the farm.
o RULE: A conditional limitation imposed upon a life estate is valid.
 5 other children arguments: Margaret had interest that was devisable upon
her death  some sort of fee simple?
 Fee simple subject to executor limitation, with executor interest
held by all 6 kids:
o To Margaret as long as she never does X; if she does X, then
to Betty, Beverly, J, B, J, J.
o But Margaret never did X so she is left with a fee simple
absolute that she could devise.
 Fee simple absolute with restraint on alienation:
o Restraint is repugnant to fee simple, so the court should
strike the restraint imposed by Lilliston and leave Margaret
with fee simple absolute.
 Beverly’s arguments: Doesn’t want Margaret to have an interest that is
devisable upon her death:
 Margaret had life estate, all children have remainders following
Margaret’s death/life estate.
 Restraint on Margaret’s alienation is valid as imposed upon a life
estate.
 Or  “To Margaret provided that she doesn’t do X, if she does X,
then to Betty, Beverly, J, B, J, J” and Margaret did X.
o Courts like the interpretation where the restriction is valid, but only on a
lesser kind of property ownership. (OK where the ownership is a life estate 
don’t like it when it’s on a fee simple.)
 Holding: Margaret had life estate and has no power to direct what
happens with property upon her death  1/6 remainder in all
children.
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CONCURRENT OWNERSHIP AND FAMILY PROPERTY 
***Both have undivided interest  each tenant has right to possess entire property.
Tenancy in Common
Joint Tenancy
Fractional amount determines how proceeds are Traditionally required to possess equal
divided if property’s sold
fractional shares
Upon death, interest goes to devisees/heirs;
Right of survivorship  when joint tenancy dies,
other tenants in common have no right of
property interest is transferred to remaining
survivorship.
joint tenants in equal shares
Requires unity of time, title, and equal fractional
shares
-
3 major types:
o Tenancy in Common
 No matter how small the interest is, right to possess the entire parcel.
 Can own different fractional interests in the property.
 Important for issues of dividing up costs.
 No right of survivorship for other tenant in common.
 Upon death of tenant in common, surviving tenant does NOT inherit
dying tenant’s surviving share.
 Dying tenant in common has to rights pass to heirs or devisees.
 Can be transferred by the following language in a deed or will:
 “O conveys [or devises] Blackacre to A and B as tenants in common”
o In A’s will, she leaves her property to C. Upon A’s death, C
and B are tenants in common.
 PRESUMPTIVELY FAVORED
 Default is ½ to each tenant in common if not otherwise stipulated.
o Joint Tenancy
 Each joint tenant has the right to possess the entire parcel, but unlike
tenancy in common, they have traditionally been required to possess
equal fractional interests in the property.
 Language to create:
 “To A and B as joint tenants with rights of survivorship”
o Needs to be EXPRESS because not the default.
 Right of Survivorship: When joint tenant dies, property interest
immediately transferred to the remaining joint tenants in equal shares.
 Joint tenants have no power to devise upon death.
o Ex. P and Q are joint tenants, P dies and leaves all property to
R. Upon P’s death, Q owns all of the property.
o Ex. W, X, and Y are joint tenants, each with 1/3 undivided
interest in Blackacre. W dies, devising all property to W.
Blackacre is owned by X and Y, each with ½ share.
 ELEMENTS:
 Unity of time, title, interest and possession.
o Creating a joint tenancy requires that interest of each tenant
be created at the same time, all must acquire title be the
same title, and they must have equal fractional share.
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Severance  joint tenant who sells property interest (inter vivos) can
destroy the joint tenancy with respect to that tenant.
 Consider whether other transfers  lease, etc. constitute severance.
o Tenhet v. Boswell: Johnson and P own house as joint tenants.
Without P’s knowledge, Johnson leases house to D for 10
years. During the 10 year lease term, Johnson dies. Upon
Johnson’s death, P claims sole ownership of the property,
free and clear of the lease.
 HOLDING: Lease does not sever joint tenancy
because it did not expressly intend to change the
nature of the interest in ownership.
 HOLDING: Lease ends when Johnson dies because to
hold otherwise would be to deprive P of his right of
survivorship. People make joint tenancies specifically
so there is a right of survivorship and unless it’s
express that they wish to sever, maintain the join
tenancy.
 Ex. A, B, and C, are joint tenants in Blackacre. A wants to sever her
part of the joint tenancy so A (secretly) conveys her interest to D.
o D now has 1/3 interests in Blackacre as a tenant in common
with 1/3 interest in Blackacre. While B and C are still joint
tenants with eachother.
 Ex. D is tenant in common with 1/3 interest. B and C are joint
tenants with 1/3 interest each. What happens upon B’s death? What
happens upon C’s death?
o Upon B’s death  all of B’s interest is transferred to C. C now
owns 2/3 interest in Blackacre. C has no one left to be a joint
tenant with, so C and D are now tenants in common, C having
2/3 and D having 1/3.
o Upon C’s death  C’s 2/3 interest goes to heirs/devisees.
 Joint Tenancy with Indestructible Right of Survivorship: create life
estates with alternative contingent remainders.
 “To A and B for their joint lives, with a remainder in A if A survives
B, and with a remainder in B if B survives A.”
o Tenancy by the Entirety
 Form of joint tenancy only available to married couples.
 Only about 20 states recognize this.
 Similar to joint tenancy except: RULES 
 Co-owners must be married
 Property can’t be partitioned except via divorce.
 Individual interest of spouse can’t be sold/transferred without
consent of other spouse (right of survivorship can’t be destroyed)
o Right of survivorship cannot be unilaterally destroyed 
indestructible right of survivorship.
 Creditors can’t attach property held through tenancy by the entirety
to satisfy debts of one of the spouses.
 Some states that recognize will interpret tenancy by the entirety to be
default.

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
-
Sawada v. Endo: D’s own home as tenants by the entirety. Husband
injures P in car accidents but has no insurance. P sues husband, then
D’s jointly convey the house to their sons. Later, P’s prevail against
husband and get $25,000 judgment. 10 days later, wife dies. P’s
want to go after the house to collect judgment.
o Issue  Could P have recovered damages against D’s house
in a lawsuit against husband ONLY? Is tenancy by the
entirety-held property attachable by (involuntary) creditors
of only one spouse?
 This turns on whether the conveyance was a
fraudulent one  need to answer this question to
answer the property law question.
 4 approaches:
 1. No change (now this would violate EP)
 2. Both parts are attachable and creditors can
step into shoes of the debtor spouse
o Ie. Creditor’s can step into both the life
estate portion and the remainder
portion when one spouse dies.
 3. Only contingent remainder part is
attachable.
o From  “To K and U as life tenants,
with remainder in K if K survives U and
with remainder in U if U survives K.” 
to  “To K and U as life tenants with
remainder in creditor is K survives U.”
 4. MAJORITY APPROACH:
o Unilaterally indestructible right of
survivorship.
o One spouse cannot alienate his/her
interest in any part of the tenancy by
entirety property AND
o Broad immunity from claims of
separate creditors of one spouse.
 Adopted by Court in Sawada.
 POLICY: protect the family home
over helping a unilateral
creditor.
OBLIGATIONS/RIGHTS OF CO-OWNERS:
o Each co-owner has a right to possess entire parcel without compensating the
other (absent “ouster”)
o Outster = one co-owner wrongfully excludes other co-owner from property.
o Constructive Ouster = when the realities of the situation prevent a co-owner
from sharing occupancy. (Ie. couples getting a really nasty divorce)
 Olivas v. Olivas: Sam and Carolina were married and held home as
community property. Got divorced and subsequently held home as tenants
in common, then Sam moved out and 3 years later asked that she pay rent.
 HOLDING  Sam left to live with his girlfriend and he delayed in
asking for rent for several years. No ouster.
36

-
GENERAL RULE  If ouster was found, spouse remaining in
possession should pay ½ reasonable fair market value of
property to spouse out of possession.
o EXCEPTIONS:
 Whether there’s a restraining order?
 Abandonment (what Sam did here)
 Look to circumstances of party moving out to
determine
 Who’s at fault?
 Remedy of Partition:
 If relationship is deteriorating, one party can sue for partition
o Court will order that property be physically divided among
co-owners
o If physical division is not possible, court may order property
sold and divide the proceeds.
o Co-owners may voluntarily agree to partition.
MARITAL PROPERTY:
o Coverture = Husband and wife were considered one person in the eyes of the law
which led to very little rights for woman.
 If husband and wife held property  husband had all of the power to
dispose of the property.
o Married Women’s Property Act:
 Passed in the late 1800’s:
 Abolished coverture
 Allowed married women to exercise same rights as men
 Granted women sole right over (some of) her earnings
 Provided that married women’s separate property was subject to
their own control and could not be seized by her husband’s
creditors.
 Amended intestacy laws to allow widows to be heirs.
 Provided for gender-equalized forced “statutory shares” of deceased
spouse’s property  ability to override the will.
o Community Property vs. Separate Property:
 Community Property: Minority Rule
 9 states (west/Midwest) + Louisiana
 Property owned prior to marriage and property acquired after
marriage by gift, devise, or inheritance etc. is considered separate
property.
 ALL OTHER PROPERTY – including property earned by either party
during the marriage – is community property and is owned equally
by both parties.
 Spouse must act as fiduciary  manage property for the benefit of
the “community”
 Upon divorce 
o Some states use bright line rule that grants each spouse
his/her separate property and half of the community
property.
o Other states apply equitable distribution principles.
 Upon death 
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o Spouse may dispose of her separate property and ½
community property by will.
 Separate Property: Majority Rule
 41 states (includes DC, MD, and VA)
 Each spouse owns his/her property separately.
 Each spouse owns whatever they owned before the marriage and
each spouse owns what they individually earn during the marriage,
unless they choose to share it. (Ie. joint bank account)
 Creditors of one spouse cannot go after separate property of
another spouse and cannot go after tenancy by the entirety
property.
 Upon divorce 
o Property will be divided between spouses on equitable
distribution grounds taking into account: (Judge’s discretion)
 Each spouse’s needs (support for necessities,
including child support)
 Lifestyle to which they have grown accustomed
 Alimony  now exceptional.
 Rehabilitation/support necessary to gain marketable
skills
 Financial and other nonfinancial contributions made
by parties to the other.
 Sometimes fault.
 Upon death 
o Statutory forced share of decedent’s estate
 What counts as property subject to equitable distribution
principles?
o O’Brien v. O’Brien: Couple married in 1971. Wife claims she
gave up opportunities while husband pursued his education.
Couple moved to Mexico while husband was in medical
school, during which wife worked full time. When husband
got his M.D., he filed for divorce.
 Issue  whether medical degree is “martial property”
subject to distribution under the statute?
 Statute says  “Marital property = all property
acquired by either or both spouses during the
marriage and before the execution of a separation
agreement…regardless of the form in which it is held.”
 Husband: Degree is not common law property,
it’s personal attainment of knowledge.
o Wife should get funds she put into the
degree but property award based on
him becoming a surgeon is unfair.
 Wife: This is marital property under the
statute.
 HOLDING  this is marital property and is subject to
equitable distribution.
 Problems with valuation.
o Premarital Agreements:
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

Traditionally unenforceable on public policy grounds because they were
thought to undermine stable marriages but now totally enforceable.
Almost all states review them to ensure that they’re voluntary, some
review for fairness.
 Presumption in favor of enforcing them.
 Ignore only if it’s unconscionable.
LANDLORD / TENANT LAW 
-
-
Commercial and Residential properties are analyzed differently by courts because the
policy considerations differ greatly.
Periodic Tenancy = renew automatically at specified period unless either chooses to
end it.
Tenancy at Will = similar to periodic except it can be ended without any notice.
Tenancy at Sufferance = tenant rightfully in possession who wrongfully stays after lease
has ended.
Common Law Property Paradigm vs. Modern Contract Paradigm:
o Historically, common law treated landlord/tenant relationship as a conveyance of
property, but the modern framework is to treat the relationship as an ongoing
contractual relationship with a continuing need to provide basic necessities.
o Common Law Property Paradigm
 Treats leases as one-time conveyance of an interest in land.
 Derived from feudal property law – agrarian society where interest was in
the land itself.
 Assumption was that a lease primarily conveyed to the tenant an interest
in land.
 Created a term of years in tenant, with reversion in landlord.
 Landlord had no ongoing duties during the term of the lease.
 Led to implausible results:
 Required tenant to pay rent even if any building on the land was
destroyed
 Court began to reexamine the theory.
o Modern Contract Paradigm 
 Leases as specifying terms and conditions of ongoing contractual
relationship between the parties.
 Subject to appropriate consumer protection overlay.
 Implied warranties in contracts for goods and residences.
o Implied warranties are always at odds with freedom to
contracts because of issues of whether implied warranties
can be waived, etc.
 Better suited to the modern apartment dweller.
LANDLORD’S RIGHTS and REMEDIES:
o Right to receive the agreed-upon rent for the rental term.
o Right to have the premises returned in tact and not damaged.
o Reversionary right  right to regain possession at the end of the lease term.
 REMEDIES:
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
-
Landlord can sue for possession  evict the tenant and be able to
re-rent the property.
o Via ejectment proceedings: long, drawn-out
o Via summary process: fast, by statute
TENANT’S RIGHTS and REMEDIES:
o Right to quiet enjoyment of premises.
 Express or implied covenant of quiet enjoyment.
 Protected via doctrine of actual and constructive eviction.
 RULE  When landlord or another tenant substantially
interferes with use or enjoyment of all or a portion of the
property, constructive eviction may be raised as an affirmative
defense.
o Need to show that party has actually moved out of at least a
portion of the space.
o Minjak v. Randolph: total vs. partial constructive eviction
o D’s didn’t pay rent from 1981-1983 and claimed that 2/3 of
the space they leased was unusable due to tenant above
producing massive number of leaks and construction leaving
immense amounts of dust. D’s notified landlord of the
conditions, but he never responded. D’s claimed that because
they couldn’t use 2/3 of the leased space, they should not
have to pay rent on that 2/3. As for the other 1/3, D’s argued
that landlord did not provide essential services and should
not have to pay for that rent either.
 RULE  Constructive eviction may be asserted as
an affirmative defense, even if the tenant has only
abandoned a portion of the premises, due to the
landlord’s acts in making that portion of the
premises unusable by the tenant.
 Court doesn’t require tenants to move out to
qualify for constructive eviction because it
would be unfair to the parties (what if they
couldn’t find anywhere else to do?)
o Blackett v. Olanoff: when to hold landlord responsible for
acts of other tenants
o D raised constructive eviction against landlord’s suit for back
rent claim, arguing that they were substantially deprived of
quiet enjoyment of their premises by music coming from a
nearby bar, which landlord leased to the bar. Bar’s lease
contained a provision which bar promised not to disturb the
other tenants. D’s moved out.
 Landlord Argument: Sure the noise would constitute a
constructive eviction, but I’m not at fault for the bar’s
actions.
 RULE  generally the landlord wouldn’t be
responsible for the acts of other tenants,
however here, the interference with D’s quiet
enjoyment was a natural and probable
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consequence of landlord leasing to the bar
and he is liable.
o Right to habitable premises.
 Express or implied warranty of habitability.
 Relationship to housing code?
 Javins v. First National: Landlord filed suit against tenants for not
paying rent. Tenants admit that they did not pay rent, but stipulate
that there were violations of DC housing code regulations.
o RULE  under modern contract paradigm, tenants duty
to pay rent is contingent upon landlord’s duty to perform
on his obligations, including the provision of habitable
premises.
 Landlord Arguments: DC housing code doesn’t affect
me as a landlord. The DC housing code provides for
fines to constructors for not meeting standard and if
tenants have a problem with their premises, the suit
needs to be brought in front of the DC housing
commission and not in a suit against me.
 Court says 
 1. Underlying factual assumptions behind a
landlord as providing a one-time conveyance
of property no longer make sense.
o People are paying for homes not land.
 2. There needs to be a consumer protection
overlay in place here because:
o Disparity in bargaining power between
landlord and tenant
o Imbalance of knowledge over what is
right and wrong with piece of property
and how it can be fixed.
 RULE  implied obligation of habitability standards of which are incorporated from
the relevant housing code – are contained in
all leases.
o These rules are very jurisdictional-dependent:
 Javins is a majority rule (look to house code).
 Some J’s use general standards instead of housing
code to determine what is habitable.
 Need to figure out whether housing code or
general standards and then figure out if the
warranty of habitability has actually been
implicated.
 Landlord’s obligation to act kicks in depending on the
J’s rules.
 Best practice is to give landlord notice of the
problem.
 Tenants Remedies:
o Rescission, rent withholding, rent
abatement, repair and deduct,
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
injunctive relief, administrative
remedies, criminal penalties,
compensatory damages. (pg. 803-806)
No waiver of warranty of habitability because of policy concerns regarding
landlords taking advantage of poor lessees.
 Ie. If you waive your warranty of habitability, I’ll give you a cheaper
monthly rent payment.
INTELLECTUAL PROPERTY
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-
US Constitution Article I § 8, Clause 8  Congress authorized to “promote the general
progress of science and useful arts, by securing for limited times to authors and inventors
the exclusive rights to their respective writing and discoveries.”
o Pursuant to this, Congress passed laws relating to both Copyrights and Patents:
 Copyright = exclusive rights to literary/artistic work
 Patent = exclusive rights to inventions
Trademark Law  exclusive rights in symbols that indicate source of goods/service.
o Originated in state common law (not statute)
 Now governed by the Lanham Act.
o Grew out of law of unfair competition and misappropriation.
TRADEMARK:
- Trademark = aka service mark
o Word, phrase, symbol, design, etc. used to identify and distinguish one’s goods (or
services) from those of others.
 Sounds, colors, shapes, scents may also be protectable as TM’s.
- Trademarks symbolize the good will associated with the TM owners business and
protects consumers from product confusion.
- By using such marks in connection with one’s goods/services, one can acquire the
exclusive right to do so.
- Needs to be used in commerce to get protection.
- Constitutional basis for TM law is commerce clause.
- The more distinctive the mark  the more protection is gets!
 Arbitrary / Fanciful Mark: bears no logical relationship to mark.
 Given highest degree of protection.
o Ex. Apple, Kodak, Nike
 Suggestive Mark: Evokes or suggests a characteristic of the underlying
good.
 Second highest degree of protection.
o Ex. Coppertone for suntan lotion
 Descriptive Mark: Directly describes, rather than suggests, characteristic
of underlying product.
 Protected only if they have acquired secondary meaning
o Secondary meaning = when public primarily associates that
mark with that product, rather than the underlying product.
 Look to:
 Amount/manner of advertising.
 Volume of sales.
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-
 Length/manner of term’s use.
 Results of consumer surveys.
o Ex. Holiday Inn, All Bran, etc.
 General Mark: Describes general category to which underlying product
belongs.
 Gets no protection.
o Ex. Aspirin, Kleenex
 Some products are not general marks at the
beginning, but can become generic through use.
 Ex. Kleenex, Thermos, etc. (Xerox is on its way
to becoming generic and losing mark
protection)
Federal Trademark Law:
o Lanham Act § 1125
 § 1125(a)  TM infringement
 “Any person who uses in commerce, any word, term, name, symbol
which is likely to cause confusion as to affiliation, connection, or
association of such person with another person, or as to the origin,
sponsorship, or approval of his/her goods, services, or commercial
activities by another person, shall be liable in a civil action.”
o ELEMENTS:
 1. P possesses a mark
 2. D used the mark
 3. D used the mark in commerce
 4. D used mark “in connection with the sale,
offering for sale, distribution or advertising” of
goods/services.
 Links to other goods/services can be
considered enough of a connection to satisfy
this element. (PETA v. Dougney)
 Element will usually be met so long as there is
any type of advertising on the page.
 5. D used mark in a manner likely to cause
confusion.
 Initial Interest Confusion
 Domain Names
o PETA v. Doughney: domain name
PETA.org is enough to cause confusion
such that people won’t continue to look
for the real PETA website, can’t be
overcome by parody defense. (see
below)
 Playboy v. Netscape: D keyed their search engine so that if anyone
searched something related to adult industry (Playboy, Playmate, etc.)
users would be shown ads of Playboy competitors that looked like real
Playboy ads. Users were unaware of who sponsored the ads. Playboy sued
Netscape alleging that using their TM’s infringed and diluted them.
 Focus on the confusion element  initial interest confusion:
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o RULE: Forbids a competitor from luring potential customers
away from a producer by initially passing off its goods as
those of the producer, EVEN IF confusion is dispelled by the
time any sales would take place or arrival at the website.
o 8 Factors:
 1. Strength of the mark
 Playboy’s mark has acquired strong secondary
meaning. (Netscape admits they used it for its
secondary meaning).
 2. Proximity of the goods
 Proximity between Playboy and its
competitor’s goods provides reason for why
Netscape would key Playboy’s marks to
competitor’s ads  they’re very similar.
 3. Similarity of the marks
 Identical  Netscape used playboy’s TM’s.
 4. Evidence of actual confusion
 Playboy presented statistical analyses
 5. Similarity of marketing channels used
 Both Internet
 6. Degree of caution exercised by a typical user
 Consumer care for cheap products is low and
low consumer care increases likelihood of
confusion.
 7. D’s intent
 Netscape uses click-rates on ads to make $$
and even if someone clicks wrong ad, Netscape
still makes money from it  did nothing to try
to alleviate confusion.
o If ads had been labeled  would have come out differently
probably.
o 1125(c)  Protection from Dilution of Famous Marks
 Dilution = lessening of the capacity of mark to identify and distinguish
goods/services, regardless of the likelihood of confusion.
 Occurs either through:
o 1. BLURRING  use of P’s mark by D to identify noncompeting goods.
 Ex. McSleep for motels.
o 2. TARNISHMENT  P’s mark weakened through negative or
unsavory association with or distortion of D’s use of mark.
 Ex. Candyland or Girls R Us for porn sites.
 To decide if a mark is famous courts look to:
o Degree of distinctiveness
o Duration and extend of use
o Amount of advertising and publicity
o Geographic extent of the mark
o Channels of trade
o Degree of recognition in trading areas
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o Any use of similar mark by 3rd parties
o Whether the mark is registered
o DEFENSES to infringement or dilution:
 1. Fair Use: (see below in Suntrust v. Houghton Mifflin)
 2. Nominative Use: Just using the mark to identify that it exists  like a
criticism or commentary.
 3. Parody: Simple form of entertainment conveyed by juxtaposing
irreverent representation of trademark with idealized image created by
mark’s owner. (parody is a type of fair use)
 MUST convey two simultaneous and contradictory messages:
o 1. That it IS the original AND
o 2. That it IS NOT the original.
 PETA v. Doughney: D registered PETA.org and created website
“People Eating Tasty Animals”. Claims that it’s a parody and links to
meat, leather, etc. websites. He had a link which states “exit
immediately” and links to PETA’s real website. PETA sues for
infringement and dilution.
o D’s parody claim: D claims that while domain name conveys
that it is the original PETA, the content of the actual site
conveys the second message that it is NOT the original PETA.
 Court rejects because these two messages need to be
simultaneous.
 BUT SEE  Lamparello v. Falwell: Jerry Falwell made anti-gay
remarks in his preaching. P subsequently registered “Fallwell.com”
(notice the 2 L’s) to criticize Falwell’s remarks. P linked to D’s real
site and never sold goods on his site. Falwell sues.
o Same 5 elements:
 1. Falwell had a mark.
 2. D used it.
 3. In commerce.
 4. In connection with sale of goods/services.
 Not really selling anything, just sharing views.
 5. Likely to confuse consumers.
 D argues for initial interest confusion.
o HOLDING  distinguish from PETA for 2 reasons:
 1. Because this is a case about criticism and there’s no
financial interest here. Court’s more likely to find
liability under initial interest confusion when one
business uses another’s mark to its own financial
gain.
 Broad protection for criticisms because a
critique needs to discuss the views of a mark in
order to refute them.  1st A. / fair use
 2. This court doesn’t recognize initial interest
confusion. Test here is: Determine if confusion
exists by examining the allegedly infringing use in
the context in which it is seen by the ordinary
consumer.
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
So court would evaluate the allegedly
infringing domain name in conjunction with
the context of the website and find that there is
no likelihood of confusion.
COPYRIGHT:
- A form of protection for “original works of authorship fixed in any tangible medium of
expression”.
o Literary works, musical works, dramatic works, choreographic works,
pictorial/graphic/sculptural works, motion pictures and other audiovisual works,
sound recordings, and architectural works.
o Don’t need to be published.
 NOT protected:
 Works not fixed in a tangible form of expression
 Ideas, procedures, processes, methods of operation, etc.
 Works consisting of common information/facts
- Policies behind protection:
o Motivate creativity by authors by securing a fair return on her labors AND
o Allow public access once that limited time has expired.
- How to Acquire Rights:
o Copyright rights inhere automatically from the moment the work is “fixed in a
tangible medium of expression.”
o Rights last from the moment of fixation, through life of the author + 70 years.
o Notice and registration are NOT required  but do provide certain benefits.
- Exclusive Rights of Copyright Holders: § 106
o 1. To reproduce.
o 2. To adapt/modify/prepare derivative works based upon the copyrighted work.
o 3. To distribute copies to the public.
o 4. To perform the copyrighted work publicly.
o 5. To display the copyrighted work publicly.
o 6. In the case of sound recordings, to perform the copyrighted work publicly by
means of a digital audio transmission.
- Copyright Infringement:
o 1. P owned the copyright AND
o 2. D copied original elements or copyrighted material.
 To do this: show substantial similarity between the 2 works such that an
average lay observer would recognize the alleged copy as having been
appropriated from the copyrighted work.
- Contributory Copyright Infringement: (Sony defense and Grokster rule)
o 1. Direct infringement by users.
o 2. D has actual or constructive knowledge of the infringement by users.
o 3. D has materially contributed to infringement by users.
 Sony Corp. v. Universal City Studios: When is it justifiable to hold one
accountable for another’s actions?
 Sony sells VCR’s. D alleged that some people used the tape recorders
to record their copyrighted works on TV, infringing their copyrights
[infringing on D’s exclusive right to reproduce and to distribute
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-
-
copies to the public). D says Sony is liable for the marketing of
VCR’s. D seeks injunction and damages.
 Sony Defense Rule  If VCR’s are capable of commercially
significant / substantial non-infringing uses, the mere
manufacture or sale is not sufficient to constitute contributory
infringement, even if the VCR’s were used by their owners for
infringing uses.
o Since a VCR could easily be used for non-infringing uses
(time-shifting [non-commercial use], taping non-copyrighted
materials or materials that have given permission to record),
Sony is not liable for contributory infringement.
 Policy  Holding produces a technologist’s right to produce dualuse technologies (some infringing and some non-infringing uses).
Inducement Liability:
o RULE  One who distributes a device with the object of promoting its use to
infringe copyright, as showed by clear expression or other affirmative steps
taken to foster infringement, is liable for the resulting acts of infringement
by 3rd parties. (adopted from Patent Law)
 MGM v. Grokster: Under what circumstances the distributor of a product,
capable of both lawful and unlawful use, is liable for acts of copyright
infringement by 3rd parties using the product?
 D hosts peer-to-peer software that allows people to copy music
from each other. D did not have any filters in place to stop copyright
infringement and even sent a newsletter to explain to users how to
best download copyrighted music. Made money off Grokster via ad
space.
o Grokster tries to employ Sony defense  would apply, but
SCOTUS rejects and creates inducement liability theory.
o Where evidence goes beyond a product’s characteristics or
the knowledge that it may be put to infringing uses, and
shows statements or actions directed to promoting
infringement, Sony defense will not save D, regardless of the
substantial non-infringing uses.
Limits on Copyright Holding Exclusive Rights: § 107
o FAIR USE: Fair use of a copyrighted work for purposes such as criticism,
comment, news reporting, teaching (including multiple copies for classroom use),
scholarship, or research is not an infringement.
 ELEMENTS:
 1. The purpose and character of the use, including whether
such use is of a commercial nature or is for nonprofit
educational purposes.
 2. The nature of the copyrighted work.
 3. The amount and substantiality of the portion used in relation
to the copyrighted work as a whole, AND
 4. The effect of the use upon the potential market for or value
of the copyrighted work.
 Suntrust v. Houghton Mifflin: (The Wind Done Gone case)
 TWDG claims that her book is a critique of GWTW. GWTW copyright
holders asked author not to publish but she said no and GWTW filed
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suit claiming copyright infringement (violated copyright holders
exclusive right to create/authorize derivatives), violation of Lanham
Act (for trademark), and deceptive trade practices.
o GWTW proves prima facie case for copyright infringement
but TWDG asserts FAIR USE DEFENSE.
o Court here defines parody  “aim is to comment upon or
criticize a prior work by appropriating elements of the
original in creating a new artistic, as opposed to scholarly or
journalistic, work.”
 Applying fair use factors to TWDG:
o 1. The purpose and character of the use, including
whether such use is of a commercial nature or is for
nonprofit educational purposes.
 TWDG is for commercial purposes, which tends
towards it not being fair use.
 BUT it’s VERY transformative which tends towards it
being a fair use.
 Transformative = Whether the new work
merely supersedes the objects of the original
creation or instead, adds something new, with
a further purpose or different character,
altering the first with new expression,
meaning or message?
o TRANSFORMATIVE IS VERY
IMPORTANT TO FAIR USE ANALYSIS 
IF VERY TRANSFORMATIVE, THE
OTHER FACTORS MATTER LESS.
o 2. The nature of the copyrighted work.
 Factor not very important to parodies.
o 3. The amount and substantiality of the portion used in
relation to the copyrighted work as a whole, AND
o 4. The effect of the use upon the potential market for or
value of the copyrighted work.
 Concerned with market substitution in derivatives 
evidence of harm to potential market for, or value of,
the original copyright is crucial in parody cases.
 If diminishing value to copyrighted work is
simply because of the criticisms in the parody
then that doesn’t count against the fair use
analysis.
 Campbell v. Acuff-Rose: SCOTUS found that
parodies will very rarely substitute for the
original work in the market since the two
serve very different functions.
Self Help Methods for Controlling Access to and Prohibiting Copying of Works:
o Copyright Act § 1201  Circumvention of Copyright protection systems.
 New class of rights (independent from infringement)
 PROHIBITS:
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


Circumvention of technological measures used to control
copyrighted work.
Trafficking or manufacturing devices primarily designed to
circumvent technological measures used to control access to
copyrighted works.
Trafficking technology primarily designed to circumvent copy
control devices that control copying of copyrighted works.
o DEFENSES:
 No fair use defense!
 § 107 does not provide a defense either.
PERSONALITY RIGHTS:
- Right of publicity:
o Right to commercially exploit one’s image and likeness / the right to keep one’s image
and likeness from being commercially exploited without permission
 Right of every individual to control the commercial use for his or her name,
image, likeness, or some other identifying aspect of identity
 Grants individual the exclusive right to license the use of his/her identity for
commercial promotion.
 EXCLUSIVELY A MATTER OF STATE LAW
 Vary widely from state to state  most important in NY and CA (where
the celebrities are)
 Fair use defense can apply.
- Right of Privacy:
o The right to be left alone and not have personality/image/likeness represented
publicly without permission.
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