Hofstra Law Villazor Spring 2011 Property

Property Outline, Professor Villazor – Spring 2011

1)2)3) What is Property?

A) Key Points:i) Property Law is:

(1) Relational(2) Gives owners the power to control things by placing duties on non-owners(3) Not Absolute(4) Owners Have obligations as well as rights(5) Bundle of Entitlements(6) Owners ability to use their property is limited to ensure that their property use

does not cause such unreasonable negative externalitiesB) Recurring Themes

i) Social Context - Social context matters in defining property rights. (owned individually or jointly, private or governmental entity)

ii) Formal v. Informal sources of rights – Determining when expectations based on informal arrangements should prevail over formal ones is a central issue in property law

iii) The Alienability Dilemma – Tension between promoting alienability by consolidating rights in owners and promoting alienability by allowing owners to disaggregate their rights into bundles constructed by them.

iv) Contractual Freedom and minimum standards – The law imposes certain minimum standards on contractual relationships. (Ex: Using eviction proceedings). Theses limitations on free contract protect basic norms of fair dealing and promote the justified expectations of individuals who enter market transactions.

v) Social Welfare – We need to design rules of ownership and transfer that promote efficiency and social welfare by decreasing the cost of using and obtaining property while maximizing its benefits both to individual owners and to society as a whole.

vi) Justified Expectations – A central function of property law is to determine what the parties actual expectations are and when they are, and are not justified.

vii)Distributive justice – Property rights are a legal form of wealthC) Normative approaches to conceptualize property rights and adjudicate conflicts

i) Traditional American Indian Conception of Property – Because of spiritual bonding it was not possible to own the land

(a) More oriented to sharing Use of property would overlap

ii) Positivism and Legal Realism – (1) Positivist theories identify law with the “commands of the sovereign” or the rules

promulgated by authoritative government officials for reasons of public policy.(a) Separate Law and Morals

iii) Justice and Fairness – Ambiguities in existing law must be filled by judges. They should interpret gaps, conflicts and ambiguities in the law in a manner that protects individual rights, promotes fairness, or ensure justice.

iv) Utilitarianism, Social Welfare, and Efficiency – Focus on the consequence of alternative legal rules. (Cost and benefit)

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(a) Goal of adopting rules that will maximize the social welfare. v) Social Relations – analyze property rights as relations among persons regarding

control of valued resources. (a) Feminist Legal Theory, Critical race theory,

vi) Libertarian and Progressive approaches to property – (1) Libertarian – hope to minimize government regulation of property(2) Progressive – who hope to promote more equal opportunities to acquire property

A property right is a LEGAL ENTITLEMENT granted to an individual or entity but the extent of the legal right is partly determined by rules designed to ensure that the property system functions effectively and fairly

A) Real Property refers to land and the improvements attached to the land (buildings, fences, and dams)

B) Personal Property - All property other than real property (cars, books, clothing, Tables)C) Possession is the controlling or holding of personal property with or without a claim of

ownershipi) It has two elements

(1) An intent to posses on the part of the possessor(2) His or her actual controlling or holding of the property

(a) Both the intent and the control element must be present to acquire the rights of a possessor

(b) Dominion or control to the exclusion of every other individual - CL ii) Definition of Property – rights among people that concern things. In other words,

property consists of a package of legally-recognized rights held by one person in relationship to others with respect to some thing or other object.

D) NY Times Articles(1) 48 Hour Rule - have to move objects after 48hours

(a) Because the 48 hour rule was not enforced it was recognized as custom(b) Perpetuates Law

E) 4 Main Rights i) Right to Excludeii) Right to Possession (owner or tenant with lease)iii) Right to Use - use property anyway you want so long as you don't violate the rights of

othersiv) Right to Transfer - Right to give property to someone else.

F) Property Law - system of rules governing the DISTRIBUTION AND REGULATION of real propertyi) Property Law - gives owners the power to control things, and it does this by placing

duties on non-owners.(1) Property Rights are RELATIONAL - ownership is not just over things but entails

relations among people

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(2) Property Rights are NOT ABSOLUTE. They are limited to ensure that property use and ownership do not unreasonably harm the legitimate, legally protected personal or property interest of others.

ii) Property Law therefore comprises rules that allocate particular entitlements and defines their scope

G) Property is a system as well as an entitlement.i) A property right is a LEGAL ENTITLEMENT granted to an individual or entity but

the extent of the legal right is partly determined by rules designed to ensure that the property system functions effectively and fairly

H) Property owners freedom to use their property is limited to ensure that their property use does not cause unreasonable negative externalities.i) Owners are not allowed to impose conditions that violate public policy or that unduly

infringe on the liberty interest of future ownersii) Many of the basic rules of property law concern contest between formal and informal

sources of property rightsiii) Property Rights are a legal form of wealth

I) PROPERTY LAW THEORIESi) First Occupancy – First in time. First person to take possession of an un-owned

thing owns it.(1) Implements an important social policies relating to rewarding labor and protecting

investment in resources. ii) Labor Theory – People are entitled to the property produced by their labor.

(1) Ex: Adverse Possession, Intellectual Property Rightsiii) Utilitarian – Property is a means to an end

(1) Private property exist in order to maximize the overall happiness or utility of all citizens

iv) Law and Economics – incorporates economic principles into utilitarian theory. (1) The law enforces property rights in order to motivate individuals to utilize

resources efficiently. v) Personhood Theory – certain things are seen as so closely connected to a person’s

emotional and psychological well-being that they virtually become part of that person. (1) Ex: Wedding Ring

4) Right to Exclude

A) Many rights go along with ownership or possession of property. Perhaps the most central is the right to exclude others from the property.i) Possessors of property may exercise this right, or they may waive it by allowing

others to come onto the property.

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ii) These rights of access are created by different sources of law (1) Common law(2) Federal and State public accommodation statutes(3) Labor relations statutes(4) Federal and State constitutional guarantees of freedom of speech

B) Common Law Trespassi) Trespass under the common law is an unprivileged INTENTIONAL intrusion on

property possessed by another.(1) The intent requirement is met if the defendant engaged in a voluntary act.

(Mistaken entry on the land does not relieve the trespasser of liability)ii) The intrusion occurs the moment the non-owner enters the property.

(1) Intrusion may occur upon physical entry of a person or an object (overhanging building)

(2) Trespass may occur above or below the surface.iii) A trespass is privileged and thus not wrongful if:

(1) Entry is done with the consent of the owner(2) Entry is justified by the necessity to prevent more serious harm to person or

property(3) Entry is otherwise encouraged by public policy

C) Criminal Trespassi) Criminal proceedings are generally initiated by federal, state, or local government

officials rather than by private citizens, and their purpose is to deter wrongful activities and to punish those who engage in them.

ii) Punishment may include a fine or incarceration.

D) State v. Shacki) Issue - Can farmer exclude advocates from property?ii) Parties:

(1) NJ - Appellant (because of enforcement of criminal law of trespass - Tedesco called the cops)

(2) Shack - Appelleeiii) What could Tedesco have done to exclude lawyer and social worker?

(1) He could have evicted Migrant Farm workers(2) Barrier to Entry - He could have put up a fence(3) File Civil Law Suit under Common Law Trespass - could file and injunction, gets

damages - nominal and punitive.iv) Tedesco could not use his right to exclude because

(1) Interferes with rights of Migrant farmworkersv) Defendants argument - Tried to draw analogy to Marsh case (1st amendment right

to association)(1) Marsh - Property although privately held, it was open to the public because

people could go in and out as they pleased(a) That's why courts recognized first amendment right to association

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Tedesco's property was not open to the public, it was not analogues to Marsh

(2) Migrants were construed as tenants (tenants can invite whoever they want)(a) However State v. Shack was complicated by employer and employee

relationshipVI) EMPLOYEES DON'T HAVE POSSESSORY RIGHT LIKE TENANTS DO

(1) Had to come up with new rule Principle - Right to exclude is not absolute

(i) Ex: Necessity limits rights (ii) Property rights can be overridden by the public interest

(2) Court defines right to exclude (a) Recognized that the right to exclude is not absolute its curtailed by rights of

others(b) Right to exclude has to be balanced against other peoples rights

vii)Rule - Title to real property cannot include Dominion over the Destiny of persons the owner permits to come upon the premises(1) Farm workers should be allowed access to information.

viii) There is a balancing of rights of owner and workers (sharing of bundle of sticks)

ix) If given a stick it stays with you unless the owners specifies otherwise. You can't pass it along to someone else.

E) Defenses to Trespass (Privileged Trespass) (1) Necessity(2) Consent(3) Public Policy

(a) However, if the trespasser causes damages he is still liable to the owner for the damage

F) When looking at a case - ALWAYS look at RIGHTS and OBLIGATIONSi) The lawyer had an obligation to announce why they were thereii) Workers had an obligation not to invite people who may cause harmiii) Case shows that its hard to draw a definite line - at what point do you cut off right.

Must balance interest.

G) Hypo 2: Ana is a live in domestic helper who is not paid minimum wage or overtime. David a lawyer from legal aid is going to visit her and giver her information. What are her arguments and what are the house owners’ arguments?i) Private home is different from State v. Shack.

(1) Can't assume anything else(a) Don't know if Ana knew her rights

(2) Ana is not in same protected class as Migrant workers.ii) Must understand rule from State v. Shack and distinguish. How can you use language

of opinion?

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iii) Can we extend the rule of State v. Shack?(1) Maybe there is a public policy extension.

iv) There is no right answer, all that matters is the analysis(1) Different ways to argue

(a) Home is different from farm - greater interest(b) Exactly same - use dicta from State v. Shack

v) Shows tension between right to exclude and right to access.

H) Desnick v. ABC - Tension between Right to exclude and right to accessi) Issue: Was ABC's act's trespass?ii) Trespass - to enter upon another's land w/o consent (courts definition)

(1) They had consent but it was based on fraudiii) Business is distinguishable from State v. Shack

(1) A business invites people to visit(2) ITS NOT FRAUD BECAUSE FACILITY IS OPEN TO THE PUBLIC(3) The interest sought to protect were protected - no infringement on Dr./Patient

confidentiality.iv) Trespass doesn't apply because they had consent

(1) Rule - No trespass even if consent was fraudulently obtained because there was no interference with ownership or possession of property open to the public. (a) Rule would only apply to public places not to private (Anna can't lie about

why lawyer is there)

I) Food Lion Inc. v. Capital Cities/ABC Inc.i) Workers lied about entry but it was not trespass until they secretly videotaped the

meatpacker(1) Once the action exceeds the scope of the initial invitation

ii) Both Desnick and Food Lion looked at public interestiii) Right to exclude is governed by the law of trespass

(1) Trespass - unprivileged intentional intrusion on property posses by another(a) Desnick - Once someone claims consent then there is no trespass(b) Food Lion - Consent was invalid because conduct went beyond the scope of

consent

J) Privileged Trespass – Defenses against trespass. Designed to promote competition i) There can be no implied consent when express consent is procured by a

misrepresentation or a misleading omission. However, consent is often given legal effect even though the entrant has intentions that if known to the owner of the property would cause him to revoke his consent.

ii) To determine if the case involves trespass the interest that the tort in question is meant to protect must be examined. However, there is no bright line rule.

iii) One who enters property with permission of the owner is a licensee and has a property interest called a license.(1) If the owner revokes the license the non-owner must leave the land within a

reasonable time; failure to do so will constitute trespass.

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K) Right of Reasonable Access to Property Open to the Publici) Right of non-owners to places open to the public.

(1) Utson v. Resort Int'l Hotel(a) Plaintiff found be card counter and was excluded by the hotel (b) Issue - Wanted to exercise right to exclude even though he hadn't done

anything wrong(2) Rule Today - At Common Law traditional right to exclude - absolute right to

exclude so long as consistent with state and federal civil rights laws.(a) Innkeepers and Common Carriers had to allow people in because of safety

reasons (Common carriers engaged in interstate commerce are regulated by the Interstate Commerce Act and are prohibited from all forms of unreasonable discrimination)

(3) Court relied on State v. Shack and State v. Schmid to show Common Law is changing. To Deny access it must be reasonable (person is intoxicated)(a) Utson is minority rule

ii) MAJORITY RULE - Madden - Right to exclude(1) NY follows Majority Rule

(a) Need to decide if its a place of public accommodation (inn, common carrier)

iii) Brook Case(1) Market Regulation v. Free Market

(a) Obligation of property law - can't exercise right to exclude in order to harm people

(2) Under Common Law property owners of places open to the public have an absolute right to exclude(a) Occurred in Mid 1800's

It was a departure from traditional CL from England(i) Traditional rule gave public reasonable access to places open to all.

(b) Separate Rule regarding innkeepers and common carriers Traditional CL provided that they had to have good reason to deny access

iv) Reason cannot be discriminatory (1) The traditional common law rule imposes a duty on innkeepers and common

carriers to serve members of the public without discrimination unless they have a good reason not to provide services to a particular individual.(a) Utson Changed the common law rule by extending that right of reasonable

access to all business open to the public. Most states however, retain the traditional absolute right to exclude

without cause and limit the duty to serve the public (the right of reasonable access) to innkeepers and common carriers.

Three justifications have traditionally been offered for the special innkeepers and common carriers(i) They were more like monopolies than other business, so denial of

service would be the same as denying the ability to travel or find a place to sleep.

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(ii) These business provided necessities whose denial would place individuals in risk of the elements

(iii) They hold themselves out ready to serve the public and the public relies on these representations.

L) Exceptions to Right to Exclude i) Necessityii) Public Policyiii) Consent

(1) MAJORITY RULE - Can exclude in places open to the public so long as it doesn't violate civil rights laws and it is not an Inn or a Common Carrier

(2) MINORITY RULE - Uston - reasonable access to all people

M) Cannons of Construction (statutory construction)i) Types of Analysis Courts use in analyzing a statute

(1) Use text of statute(2) Purpose - goes beyond text of(3) Legislative History

(a) If two laws conflict later one in time usually wins. ii) Civil Rights 1964 - equal access to public accommodations

(1) Expanded beyond innkeepers and Common Carriers.(2) But not retail unless its attached to one of the specified areas.

(a) Only coveres race, color, religion, and national origin, NOT based on sex. iii) Civil Rights Act of 1866 (broader than 1964 Statute) Applied to private as well as

state conduct – As the Supreme Court held in Jones v. Alfred Mayer Co. (1) Equal Access for African Americans(2) Prevent Race discrimination(3) Applied to private conduct and public conduct(4) Same rights as enjoyed by white citizens to inherit, purchase, lease, sell, hold, and

convey real and personal propertyiv) Remedies under the 1866 Civil Rights Statute

(1) Injunction(2) Damages

v) Remedies under the 1964 Civil Rights Statute(1) Injunction(2) Declaratory Relief – Attorneys fees

(a) No Provision for Damages.vi) Civil Rights Act of 1991

(1) Amended §1981 saying that it reaches private conduct, but the act also clarified §1981 by stating that it regulates the terms and conditions of contracts and not just the “right to make and enforce them”

N) What’s the difference between public accommodation and a private club?i) Courts generally look to see whether the organization is selective in its membership

and has limits on the number of persons who can join.

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(1) If the selections criteria track a statutory category, it is unlikely the group will be held to be a private club. (a) Ex: A group that is limited to men but has no other selection criteria and is

unlimited in size, is likely to be held to be a public accommodation. ii) Under the 1964 Act a club is private if

(1) Completely secluded(2) A doesn’t advertise

5) Damages

A) Jacque v. Steenberg Homes Inc.i) Cross plaintiffs land to deliver a mobile home

(1) Can nominal damages sustain punitive damages?(a) Holding: Yes

(2) Jaque had prior issue with adverse possession that’s why he didn't want them to come onto his property

ii) Nominal damages - no harm doneiii) Compensatory Damages - only if harm doneiv) Due process problem - If there is punitive damages there needs to be an appropriate

ration between nominal and punitive damages otherwise its excessivev) Courts ruled in favor of Jacque because:

(1) Policy - Strengthen Right to Exclude(2) No Due Process Violation

B) Three Factors in determining punitive damages i) Degree of reprehensibility of conductii) The disparity between harm or potential harm suffered by the plaintiff and the

punitive damagesiii) The difference between the remedy and civil or criminal penalties authorized or

imposed in comparable cases. (i) Deter Conduct(ii) Deter landowners from taking matters into their own hands

C) Mathews v. Bayhead Improvement Associationi) Quasi Public Land

(1) Allowed people to become members if they were residents of the borough(2) Public could use beach after 5:00pm

(a) Public argued that the public trust doctrine allowed them to use the beach(b) Avon - public right to swim extended to dry sand area if publically owned

ii) Courts Decision - had to allow public in(1) No other beaches available(2) Right to beach would have no effect at all if can't get to beach(3) Privately owned dry sand areas was not addressed by the court(4) Must be reasonable - walking through low tide or swimming is not reasonable.(5) Residents did not have access to another public beach. If they did it may have

changed the outcome.

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(6) Public Trust Doctrine underlying the holding - ocean is owned by the public(a) REASONABLENESS is the key term that allows flexibility.

iii) Is holding consistent with Jacque?(1) The nature of ownership Private Property v. Municipal(2) In this case the property was located next to property the public already had a

right to.iv) Three Common law doctrines besides public trust to grant rights of access.

(1) Prescription (Prescriptive easement) - over time members of the public use property for specific things and it becomes theirs – prescriptive easement

(2) Custom - limited to a particular reason, it is customary to use property for a given reason.

(3) Dedication - involves gifts of property to public at large(a) Requires offer by the owner and acceptance by the public(b) Longstanding acquiescence in use of breach front property by the public may

be interpreted as an implied dedication by the property owner and acceptance by the public.

D) Pottinger v. City of Miamii) Right to be somewhere

(1) Court found that excluding homeless from public was cruel and unusual punishment because they have to perform everyday functions somewhere.

(2) Cant punish them because its not their choice

6) Property & DemocracyA) Property law was established through English Common Law

i) Feudal System (1) Land Owner - King. Divided land by giving it to Knights and Lords who could

divide it to Tenants and Vassals who could give it to servants.(2) Government Structure was tied to land ownership.

B) Colonist Rejected Feudalismi) U.S. - House is your "castle"

(1) If you own property you can use land however you want.ii) Don't want to concentrate land in one person.

C) Abolition of Slavery and Racial Segregationi) Depressed Marketii) Limits landowners - who they could sell toiii) Denying Wealth - Can't own property or pass it down (economic inequality)iv) Separation - Some neighborhoods seen as better than others.

(1) Civil rights statutes regulated private woners to ensure equal access to the jobs, homes, goods, and services needed to sustain human life, and they prohibit private owners from providing service in a segregated or discriminatory fashion

D) Company Towns - Disfavoredi) Created a Monopoly

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ii) Similar to Feudalismiii) Can't concentrate money and property in one person

(1) Resembles feudalism too much.(2) Individual ownership of land gives employees a base of power from which to

resist demands of the employer.

E) Women's Right to Propertyi) Could not enter into contract or own propertyii) Limit Landowners - Depressed Marketiii) Single women had to rely on fathers.

(1) Married Women’s Property Act(a) Established the right of married women to own property and to enter into

binding contracts (b) But those laws did not by themselves give woman an independent basis of

wealth.

F) Alien Land Lawsi) Couldn't own land if not a citizenii) Oyama v. California

(1) Father was not a citizen but his son was so he put the property in his son's name(2) Fred Oyama was being punished for his father being a non-citizen. Violates equal

protection clause. (3) If U.S. citizen should be able to own property

iii) Under federal law can still limit non-citizens from owning property overruled by most state laws(1) California stopped enforcing the Alien Land Law after Oyama and that decision

ultimately led to invalidation of alien land laws. iv) Fuji v California

(1) California struck down Alien Land Law and other states followed (except Florida)

G) Commonwealth v. Fremont Investment & Loansi) Subprime lendingii) To what extend should the government allow people to enter into these transactions?

(1) Fremont engaging in unfair lending practices(a) 4 different characteristics showing unfairness

ARM Loans 3% below fully indexed rate Debt to Income ratio of less than 50% Loan Value Ratio - 100%

iii) Difference between regulations and laws(1) Regulations - Rule set up by agency who has power to enforce rules(2) Laws - Statutes.

iv) Regulatory Guidelines - explanations of what you should do.v) Freemont argued that the text of statutes showed they did nothing wrong (strong law)

(1) Loans they made where not covered by statutes(2) Statute did not define the term unfair

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vi) Courts used legislative purpose (soft law)(1) Interrelationship of the three different statues.

(a) 93A2 - Didn't define unfair practices(2) Courts applied other statutes to define

(a) 183C - Not high cost mortgage loans(3) Court borrowed analysis from 93A2

(a) 93A3 - Conduct was legalvii)Court said that Freemont needed to AFFIRMATIVELY PROVE THEY were

allowed to give out loans. No proof they could give loans to people who couldn't pay for them

H) The 2008 subprime mortgage crisis was due in part to inadequate regulations. i) Packages of property rights lack both transparency and inherent security. When

the housing bubble burst, the negative external effects of these unstable property rights were enormous; the lack of appropriate regulations of these markets has wrecked the world economy. (1) Markets are structured by law and they need regulation to function effectively.

I) Property Rights are derived fromi) Federal Statutesii) State Statutesiii) Common Law

D) What Makes Something Propertyiv) INS v. Associated Press

(1) Gain property through labor - have to protect it because of its value(2) Defendants Argument - Copyright Act

(a) News isn't covered by copyright act(b) Once its published it public domain (this rule has changed a little today )

(3) Plaintiffs Argument (a) Unfair competition(b) Misappropriation - Took their work without giving credit.(c) Quasi property - They put together the articles so it should gain quality if

property and protection of property News has value and its needs to be protected

(4) INS could price cut AP because they didn't have the expense of creating the news.v) Labor theory of property - profiting from something and didn’t work for it.

(1) Unfair competition is what gave the news its property value(a) Labor, Resources, Distribution - needed to be protected in someway.

(2) What makes news valuable(a) Real value of news is its freshness(b) Boils down to issue of competition

What needed to be protected was the dissemination of the news.vi) Abandonment Theory

(a) News was no longer theirs. They put it out there for everyone to use(b) Abandonment is a matter of intent and AP didn't intend to abandon it.(c) They only intended to give it to their members

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vii)Court held that you can't have right to the news itself but can have right to the dissemination of the news.

(a) Majority - property is property because you work for it and create it. INS was interfering with AP's business practices. Focus is on competition

(b) Holmes - Property is right to exclude and other rights in the bundle of sticks Put limitation on when you can copy news - how many hours after

publication(c) Brandeis

Not unfair competition because they've been doing this for 10 years Not doing anything wrong (not against copyright act) No Contractual relationship The law allows this conduct and it is up to the legislature to make a

change or new law.(2) Plaintiff does have a property right in the news it gathered but it is a limited

property right that extends only against competitors in the news business(a) Title is not absolute but relative(b) Huffington Post & N.Y. Times issue

Different today because technology is different.(3) The rule in INS is a rule against unfair competition.

(a) Unless a statute provides to the contrary, individuals are generally entitled to copy products made by others and sell them. Trademark law limits ability to copy designs if this will confuse customers

about origin or manufacture of the product.viii) 1st in time principle - 1st to see it 1st to get itix) Labor Rule - work to get a spot so have the right to it.

7) Theories of Property Lawi) Custom - Although not a stated rule - everyone knows itii) 1st in Time - If un-owned and your the 1st to get there your the owneriii) Public Policy - Ensures Peace and Orderiv) Prepossessory Right - If someone showed their interest then they should be

protectedv) Actual Possession

B) Pierson v. Posti) Issue: Does Post have property right to the fox?ii) Post - pursued it, labored toward it and therefore owns itiii) Pierson - 1st pursuer doesn't matter all that matters is person who caught it

(1) Post won at trial but the court reversed in favor of Pierson(a) To reach this conclusion the court looked at scholars

iv) Barbegrac - Possession occurs when:(1) Being pursued, wounded, deprived of natural liberty/control(2) Intent to control

v) Puffendorf(1) Actual possession

vi) Difference between two philosophers

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(1) Intent v. Actual Possession. vii) Justinian - need to be able to wound and capture

Rule - Barbeyrac - wound or mortally hurt the fox then exercise control (don't need actual possession, just need to show that capture is virtually certain)(i) Need 3 Elements

a. Being Pursuedb. Woundedc. Deprive of natural liberty/control/intent to control

(b) Rule promotes more certainty because we know who shot the fox or captured it as opposed to the first person to see it

(i) This promotes the type of certainty that fox hunters were looking for. Dissent argues that we should look to other fox hunters for the law

(i) Turns on Barbeyrac but opinion differs from the majoritya. Looks at reasonable certainty of capturingb. Intent to capturec. Pursuer plus reasonable opportunity to capture

(2) Majority required infliction of injury to show its your property (more certainty, more evidence)(a) Rule of Capture - mere pursuit is not enough

(i) Pursuit, mortally wound, and intention to exclude.(b) Constructive Possession - denotes possession that has the same effect in law

as actual possession, although it is not actual possession in fact(3) Trespass

(a) One is not allowed to hunt on land owned by another without the owner’s consent, and the terms of entry may decide who prevails in disputes among hunters.

C) Popov v. Hayashi - applied Pierson v. Posti) Barry Bonds - Home Run Ballii) Issue: Did Popov have legal possession?iii) If he did then he had a right to the ball

(1) Popov applied Pierson v. Post (a) Possession occurs when an individual intends to take control of the ball and

manifest that intent by stopping forward motion weather or not complete control is achieved.

(b) MLB - Had ownership originally and then abandoned it(c) Court held Popov had a pre-possessory interest in the ball but he lacked

complete possession(d) The court held that both parties had an interest

Pre-possessory and actual possession Hayashi can't sell ball because Popov had a pre-possessory interest Imposed limitation on Hayashi's Right Court ordered Ball be sold and profits be divided 50/50

(i) Because neither party had an exclusive claimiv) Equitable distribution stems from family law

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(1) Divide proceeds equally when people have equal right or claimv) Court came up with new principles of law

(1) Pre-Possessory interest (2) Equitable Distribution

vi) Conversion - Take property of another

6) Ground and Surface Water

A) Ground Wateri) Water that collects under the ground is known as an aquiferii) Two Main Rules

(1) Free use or absolute ownership rule(2) American Reasonable use Rule

iii) Importance of Rules (1) Scarce Resources(2) Everyone Uses Water(3) What one does effects someone else(4) Infringe on someone else's property right (taking their water)

iv) Free Use/Absolute Ownership - Minority of States follow this rule.(1) Whoever can obtain the most water prevails.(2) Each surface owner is free to withdraw as much water as he likes from beneath

the surface of his property without liability. Even if it results in withdrawing water from underneath his neighbor’s property. (a) One exception is that the owners are not permitted to withdraw the water in a

way that waste it. Followed by a minority of states

v) American Reasonable use Rule(1) Owners can only acquire water for reasonable use

(a) In determining reasonableness the courts consider The interest of the surface owner making the use The interest of any surface owner harmed by the use The interest of society as a whole

(2) It is reasonable for irrigation use, own economic interest (Does it benefit the community?)

(3) If Deplete ground water so neighbor can't use it, its no reasonable vi) Correlative rights Doctrine

(1) Allowing each owner to withdraw an equitable (fair and just) portion of the groundwater, perhaps in proportion to what percentage of the aquifer underlies the property

vii)Prior Appropriation Doctrine(1) Allocating rights according to the point in time when property owners began

withdrawing water. B) Look at Notes 02/16/11 - Cost benefit analysis.

C) Surface Wateri) Two Rules

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(1) Riparian Doctrine(2) Prior appropriation Doctrine

ii) Mississippi River is dividing line between states using rules(1) West - First Appropriation(2) East - Riparian

iii) Riparian - There should be some sharing (states located along and to the east of the Mississippi) (1) Rights to water is allocated between people who's land boarders water(2) If dispute arises it is decided on a reasonable use grounds

(a) Balance such factors as The relative social value of each owners water use The extent of the harm to the defendant The cost of preventing the harm to the relative benefit.

(3) These rights vest upon the passing of the title to the riparian lands as part of the fee.

iv) Prior appropriation (aired lands west of the Mississippi.)(1) Must use water for beneficial purposes (individual or community) Beneficial use

is the basis measure and limit of these rights.(2) Prior appropriation sates allocate water among appropriators according the

principles of temporal priority (a) First in time, first in right

SENIOR APPROPRIATORS are entitled to the full share of their appropriative rights before junior appropriators are allocated any remaining water.

Prior appropriation rejects equitable sharing where water supplies are inadequate to satisfy all uses.

7) Finders Laws

A) Relativity of Title - Ownerships is qualified by someone else's interesti) Popov - Hyashi - Ownership was relative to property interest.

B) Willcox v. Stroupi) Civil War document, reports, telegrams, etcii) Chain of title - figure out who the true owner is.

(1) Officers / Government -> General Law (1896) -> Wilcox (140 years later)iii) Two Point analysis

(1) Need evidence of clear title - legal sale is the best way to do that(2) Possession (9/10 of the law) - because nothing else to prove ownership

(a) Rational - avoid litigation, stability, Status Quo, w/out it, it would create uncertainty

iv) If had property for over 140 years and no one else challenged it, society has recognized it as yours

v) Justification for possession(1) Burden of Proof (on person not in possession of property)

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(a) Otherwise anyone can challenge property ownership and create more litigation.

(2) Stability - Property law despises Instability. Favors people who have possession over something for many years.

vi) What is Wilcox wanted to burn the papers(1) Still true owner but court could turn to equitable analysis (greater good)

(a) Public Policy how important is it to preserve documents.vii) If the federal government called them part of public dominion through law it would:

(1) Open the flood gates because the government could take more private property.

C) Armory v. Delamirie – Classic case establishing finders laws

D) Lost Property - true owner prevails

E) Mislaid - Forget where they put iti) In both Lost property and Mislaid there is no intent to abandon on the part of the

owner

F) Rights are relative to true owners rightsi) Evidenceii) Equitable grounds of fairness

(1) If not evidence of title it turns on possession.

G) Lost, Mislaid, and Abandoned Property:i) Lost - Property is lost when the owner accidentally misplace itii) Mislaid - When the owner intentionally left it somewhere and then forgets where she

put itiii) Abandoned - When the owner forms an intent to relinquish all rights in the property.

(1) Property that has been lost or mislaid may be subsequently abandoned if the owner intend to give up any claim to the property.

(2) The finder of lost or mislaid property does not acquire title to the property against the true owner.(a) The finder can keep property that has been abandoned because the owner

relinquished their rights. The finder generally has the right to prevail over everyone but the true

owner. The finder is entitled to keep the property against third parties.iv) Property rights are relative rather than absolute. (Ex: Finder v. Third Party and

Finder v. True owner)v) In disputes between the landowner and the finder. The landowner will win if the

finder was trespassing at the time she found the object(1) Cases are split when the dispute is between a trespassing finder and a subsequent

possessor(2) Modern cases deny possessory right to those who obtained possession illegally.

(older cases are the reverse)(a) If the finder is on the property with the landowner's permission, the courts are

wildly divided.

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(3) If an object is found in a private home it is ordinarily awarded to the home owner .(4) If an object is found in a place open to the public some courts grant ownership to

the finder and others to landowners. Some courts distinguish between lost and mislaid property awarding lost property to the finder and mislaid property to the owner of the premises.

(5) If personal property is found embedded in the soil, courts ordinarily award it to the landowner rather than the finder. In the absence of agreement or statute to the contrary on the grounds that it is in effect real property.(a) A possible exception to this principle is the so-called treasure trove or gold,

silver or money intentionally buried in the earth for recovery later so long as not tresspassing

vi) Ownership is given to the finder rather than the owner of the land so long as the finder was not trespassing at the time it was found.(1) Finder statutes - generally require that the finder report the find to the police and

generally award the property to the finder if it is not claimed after a reasonable period of time

vii) Public/Private place test rests upon a theory of prior possession. A landowner has constructive possession of any lost chattels located on her property if the landowner:(1) Has a general intent to exercise dominion and control over her property(2) Has engaged in substantial acts of control.

(a) Conversely, a landowner who has opened her premises to the public (ex: opening a store) is not in possession of chattels on her property at the moment a finder picks up the item.

(b) A finding inside a single-family house normally presents a very strong claim for the homeowners.

(c) Mislaid property doctrine favors the landowner over the finder of the object The true owner may remember where she left her property and may return

to that location.

8) Personal Property

A) You can convey to someone else only what you own.i) If I steal personal property and then resell it to an innocent purchaser who has no

knowledge it was stolen (bona fide purchaser) the innocent party is generally out of luck.(1) A thief never obtains title to stolen items and one can pass no greater title than

one has. Therefore, one who obtains stolen items from a thief never obtains title to or possession of the item.

B) When an owner voluntarily entrust another with possession of her property the law sometime gives the grantee the power to transfer title to a bona fide purchaser.i) When a possessor has the power to transfer title to a bona fide purchaser we say the

possessor has a voidable title. Because the true owner still has the right to recover the property. But the law may give that possessor the power to divest the true owner of title by transferring title to a bona fide purchaser.

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ii) U.C.C §2-403(2) provides that bona fide purchaser will prevail over the true owner when the true owner has entrusted the property to a merchant who regularly deal in such goods.

C) If an owner is induced to sell his property by fraud or duress the seller may recover the property from the buyer unless the buyer has subsequently transferred the property to a bona fide purchaser.

9) Estates and Land

A) Introductioni) Estates - Ownership divisible by time

(1) Two types of interest or estates(a) Possessory Estate (Present) - not necessarily ownership just who is living on

land now, but the power to stay there(b) Future Interest - Person is waiting until they can posses the property to

become present interest. Future interest can be created by sale, lease, will or trust

(i) Testator – dies leaving a valid will.(ii) Settlor – one who establishes a trust(iii) Act of leaving property in a will is called devising(iv)The Act of leaving personal property is called bequeathing (v) The document creating the trust arrangement is called the declaration

of trust.(vi)Inter vivos – during the persons life.

(2) The Estates System is further classified between Feehold and Non-Feehold Estates(a) Feehold - owner who has seisin (possession) and is not subject to another

owner Feehold type

(i) Fee(ii) Life(iii) Feetail

(b) Non-Freehold Estate - Owner who is subject to another owner (lease)

ii) Problem of Dead Hand Control (1) Owners may seek to control the property long after they die.

(a) The ability to create future interest, unless regulated by the legal system, could eventually clog up the market for real estate by attaching numerous and multiple conditions to property restrict both what it can be sued for and whether it can be bought and sold.

iii) Hierarchy – A second problem associated with the ability to create future interest is the possibility that by imposing restraints on alienation and use, owner will have the wanted or unwanted effect of concentrating ownership in the hands of certain group and excluding others.(1) Concentrates ownership in the hands of those who already own property and their

descendants.

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iv) Freehold Estate - Indefeasible Fee(1) Indefeasible Fee

(a) An estate that has no ending(2) Only one type of indefeasible Fee

(a) Fee Simple Absolute FSA Largest Estate; estate that does not end

(3) Examples of Indefeasible Free/Fee Simple Absolute (a) O to A and her heirs(b) O to A in Fee Simple(c) O to A (Modern Form)

(4) Determining Present and Future Interest(a) What is the State of the title?

Who has a present interest and who has a future interest(i) O to A

a. A: Possessory Estate "present interest" in Fee simple Absoluteb. O: Has nothing, No Future Interest

(5) Defeasible Fee(a) An estate can come to an end at the happening of a particular event

3 Types(i) Fee simple determinable (FSD)(ii) Fee simple subject to condition subsequent (FSSCS)(iii) Fee simple subject to executory limitation (FSSEL)

B) FSDi) Type of Estate where the grantor granted property that ends automatically at the

happening of an event (automatically terminates a possessory interest).ii) Language - Words function to create time limits

(1) Until(2) So Long As(3) While(4) During(5) Unless

iii) Examples of Fee Simple Determinable(1) O to A until Blackacre is used for residential purposes

(a) What is the state of the title A: Possessory interest in FSD O: Future interest with the possibility of reverter

(i) If violated O gets property automaticallyiv) Possibility of Reverter is the future interest of a grantor that follows a fee simple

determinable(1) Grantor automatically becomes the owner of the property once the "event" is

trigger (ex: Once Blackacre is not used for residential purposes)

C) FSSCi) Fee Simple Subject to a Condition Subsequent

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(1) Language (a) But if(b) Provided That(c) On the Condition that(d) However

(2) Example of FSSCS(a) O to A, but if A divorces B, then back to O

What's the state of the title(i) A: Possessory interest in FFSC(ii) O: Future interest with the right of reentry

a. Right of reentry is not automatic like in FSD.i. Grantor's Future interest is called "right of entry"ii. Sometimes call "power of termination" "right of re-entry"iii. Not automatic transfer of propertyiv. Grantee is owner of property until Grantor asserts ownership

D) Why is it important to know which limitation was created?(1) Limitations help to determine who owns property at the moment an event occurs(2) Implications for various issues regarding property

(a) Adverse Possession – will affect the statute of limitations (the statute of limitations for an FSSCS starts to run when the holder of the right of entry demands a right of possession from the present estate).

(b) What property interest may be conveyed (sold, given, inherited)(c) Who to sue

(3) Laches – prevents recovery when an unreasonable delay in asserting legal rights unfairly prejudice another. (a) The MODERN APPROACH (but not universal) has been to start the

running of the statute at the moment the condition is violated, making right off entry effectively similar if not identical to possibilities of reverter

ii) Punctuations & Limitations(1) Determinable

(a) The limitation is placed before the punctuation mark signaling the end of the description of A's estate

(i) O to A until B marries, then to O(2) Subject to Condition Subsequent

(a) The limitation is placed after the punctuation mark signaling the end of the description of A's Estate

(i) O to A, but if B marries, then to O

E) Fee Simple Subject to Executory Limitation (FSSEL)i) Grantor conveys property to grantee with a condition. If the condition is violated, the

property automatically goes to a third party(1) Third parties future interest is call "executory interest"

ii) Third Party has a Future Interest(1) O to A. but if A divorces B, then to C

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(a) A: Present interest subject to FSSEL(b) C: Executory interest in FSA

(2) O to A, on the condition that A does not divorce B, but if A divorces B, then to C(a) A: Present interest subject to FSSEL(b) C: Executory interest in FSA

F) Life Estatei) What is a life Estate?

(1) O to A for life(2) O to A for life for the life of B(3) O to A for life, then to B

ii) Two different types of future interest that follow a life estate (1) Reversion - held by the grantor(2) Remainder - held by a third party

(a) What is the state of the title? O to A for life

(i) A: Present Interest in life estate(ii) O: Reversion

O to A for life for the life of B(i) A: Possessory interest in life estate pur autre B

a. O: Reversion "O to A for life" Then A conveys to B

(i) A: Possessory Interest in life estate(ii) O: Reversion(iii) B: Life Estate pur autre A

a. B is not a third party because to be a third party O must specify B O to A for life, then to B

(i) A: Possessory Estate in life Estate(ii) B: Absolutely Vested Remainder

a. Not executory interest because doesn't have "but if" or "condition" (b) Life estate for the life of another – life estate per autre vie

G) Fee Taili) Abolished in most states and treated as a fee simple absoluteii) O to A and the heirs of his body

(1) What is the State of the title(a) A: Possessory Estate in Fee tail in FSA

A's Heirs: None because abolished in the US and treated as a FSA

H) Wood v. Board of Countiesi) Plaintiff argued that the estate was an FSD or FCCSC

(1) Should have included words of limitation or durational terms(2) The language should be very clear

(a) It wasn't clear enough to establish FSD or FSSCS(3) The modern approach is to honor the grantors intent

(a) Always look at the language

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I) Edwards v. Bradleyi) Life Estate v. FSA

(1) Died Testate - with a will(2) Court found life estate w/ remainder at her death in fee simple to her children(3) The section of the will in question didn't use Fee simple where other parts of the

will did do, if they wanted FSA they would have added it

J) Remaindersi) Future interest held by a third partyii) Two different types of Remainders

(1) Contingent - yet to happen, some condition has to be met(a) Uncertain Person(b) Some kind of condition

(2) Vested(a) Absolutely Vested(b) Vested Subject to Open(c) Vested Subject to Divestment

iii) Contingent Remainders(1) Unascertained Person

(a) O to A for life, then to A's first child (A has no children)(2) Condition Precedent

(a) O to A for life, then to B if B has reached 21 years old If A dies and B is 6 guardian gets property and holds for B (depending on

jurisdiction) CL - O has reversion and it would go to B at 21

(3) Destruction of Contingent Remainder(a) Traditional Rule

Contingent remainders were destroyed if they did not vest before the preceding life estate ended

Contingent reminders were destroyed by merger(b) B dies (Condition is never met)

Goes back to O(i) Modern Rule - Grantors Intent - Must pass rules against perpetuities

a. A dies and B dies before 21 -> goes to B's heirs because grantors intent was to give to B

b. Contingent remainders likely to vest too far in the future are governed by the rule against perpetuities.

iv) Vested Remainders(1) Follow life estate (2) Remainders to person who are identifiable at the time of the initial conveyance

and for whom there are no conditions precedent other than the NATURAL termination of the prior life state when the life estate owner dies.

(3) Types of Vested Remainders (a) Absolutely Vested Remainder

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(b) Vested Remainder Subject to Open(c) Vested Remainder Subject to Divestment

(4) Absolutely Vested Remainder(a) O to A for life, then to B(b) B is certain to get the property upon the end of A's life

This its absolutely vested(5) Vested Remainder Subject to Open

(a) O to A for life, then to the Children of B (B has 1 child) A: Life Estate B's Children: Vested Remainder subject to open.

(i) Rule of Convenience - The class closes upon A's death. If B has more kids after A's death, these kids aren't included.a. Policy Reasons for Rule - Certainty. So we know who owns

property. Promotes alienability, prevents people from concentrating land in one person

(6) Destructibility of Contingent Remainders(a) Traditional Rule - destroy contingent remainders if condition did not happen

in grantee (A)'s lifetime Also destroyed by merger – the basic idea of the merger rule is simple. If a

person holding a life state acquires a vested remainder in the same property, instead of saying he owns a life estate and the vested remainder in the same property, we say the two estates merge into a larger estate, the FSA(i) If a vested life estate and the next succeeding vested estate come to be

owned by the same person the two estates are merged into one The rule providing for the destruction of contigent remainders never

applied to equitable estates(b) Modern - Honor grantor's intent (but conveyance must pass the rule against

perpetuities)

(7) Vested Remainder Subject to Divestment(a) Remainder that is vested but may be taken away because of condition

subsequent (b) O to A for life, then to B, but if B has flunked out of law school, the property

shall the go to C B has a vested remainder but he can loose the property if he does not pass

law school A; Possessory Estate in Life Estate B: Vested remainder subject to divestment in FSSEL C: Shifting Executory Interest in FSA

v) Executory Interest(1) Two Types

(a) Shifting(b) Springing

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(2) Shifting Executory Interest (a) Follows an estate in a grantee(b) O to A, provided that A if ever allows the timber to be cut, then to B

A: Possessory Estate in FSSEL B: Shifting Executory interest in FSA

(i) Property Shifts from grantee (A) to B.(3) Springing Executory Interest

(a) Divest an estate in the grantor (b) O to A for life, then B five years after A's death

A: Possessory Estate in life Estate O: Reversion subject to an executory limitation B: Springing Executory Interest

(i) B's ownership of property sprung from O.

K) Doctrine of Worthier Titlei) Prevents the grantor from conveying a life estate to a grantee and a future interest to

grantor's heir(1) O to A for life, then to O's Heirs

(a) Convert O's heirs remainder interest into a reversion(2) Avoids inheritance tax that would occur under O to A for life, then to O.

ii) Not applied today - used under CL

L) Rule in Shelley's Casei) Prevents a grantor from using the same document to convey a life estate to a grantee

and a remainder to the grantee's heirs(1) O to A for life, remainder to A's heirs

(a) The rule will convert the above to give A in FSA O to A

(b) Abolished in most states. Honor grantors interest.(c) Can be avoided by careful drafting (“O to A for 100 years if A lives so long,

then to A’s heir,”)

M) Interpreting ambiguous conveyance i) Two Policies are Important

(1) Courts seek to implement the intent of the grantor. (through the language of the deed or surrounding circumstances)

(2) When the grantors intent is unclear the courts turn to public policy considerations. (a) They attempt to further the free use and alienability of property by a

presumption against finding a future interest. (especially when recognition of a future interest would mean that the present possessor lost her title to the future interest holder). Presumption against forfeitures.

(b) If the choice is between a future interest and mere precatory language (a statement of purpose not intended to be legally binding) the preumption it to recognize a FSA.

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(c) If the choice is between and FSD or an FSSCS the FSSCS is preferred because the current interest it not automatically forfeited when the condition is violated thereby keeping ownership with the current owner.

(d) If the choice is between a life estate and a fee simple, the fee simple interest is preferred.

(e) The court will normally presume that the intended to convey whatever they owner. So if they had a FSA they conveyed as FSA Protects the interest of the grantee, placing the burden on the grantors to

be clear if they intend to retain a future interest in the property. Some courts are eager to find a future interest in the absence of clear

language creating one, some courts are eager to find a future interest when the property is donate for charitable purposes.

ii) Rule against the creation of new estates – this rule prohibits owners from creating ownership packages that do not fit within one of the established estates,

iii) Changed Conditions Doctrine – denying enforcement of covenant when circumstances are so drastically changed that they are no longer of benefit to the dominant estate has traditionally not applied to future interest.

N) Wastei) Permissive waste occurs when the possessor fails to make normal repairs to protect

the property from substantial deterioration. (1) A possessor need not rebuild structures destroyed by acts of nature

(a) But a duty may exist to protect the premises from future harm.(2) The present estate owner generally must pay current carrying charges on the

property, such as taxes, to prevent forfeiture on the entire estate through default.ii) Voluntary Waster (affirmative waste) – “deliberate affirmative acts of the possessory

tenant”iii) Ameliorating Waste – life tenants actions increase the value or utility of the property

(1) Sometime condoned by the courts but not always. iv) There is no obstacle to selling a life estate.

10) Rule Against Perpetuities

A) No interest is good unless it must vest and close, if at all, no later than 21 years after some life in being at the creation of the interest.i) Protects against future interest that vest too remotely.

(1) Ensures a future interest holder will get property(2) Tried to honor grantors intent while ensuring alienability of land(3) PREVENT DEAD HAND CONTROL

ii) Four concepts to keep in mind(1) Interest must vest (and close) or Fail (need to know if person will or will not get

property)(2) Must vest within the "perpetuities period"(3) Lives in being are person who have an interest in the property(4) "Validating life" is one of "lives in being" She or He helps to prove that the

property is certain to vest. (There is one validating life)

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(a) I----------lives in being PLUS 21 years----------I (Perpetuities Period) (b) Creation of interest

Sale Gift Will

B) Creation of Future Interest i) A future interste is created by conveyance (sale) at the moment of the conveyance. ii) It is created in a will at the moment the testator diesiii) It is created in a trust the moment the trust documents is signed and the trust created

(if the trust is irrevocable.) If its revocable then at the moment it becomes irrevocable

C) Executory Interest – are subject to the rule against perpetuities.i) The main exception is that the rule does not apply if both the present and estate owner

and future interest owner are charities.

D) Questions to Aski) Will the future interest vest within the perpetuities period?

(1) If so, then there is NO RAP violationii) Another way to ask

(1) Is there any chance that it will vest beyond the perpetuities ?(2) If so, then there IS A RAP violation

iii) Policy behind Dead Hand Control(1) Person who dies controls land beyond the grave

iv) RAP only applies in the following Future Interest(1) Contingent Remainders(2) Options to Purchase(3) Vested Remainders Subject to Open(4) Executory Interest

(a) COVE(b) Not concerned with reverters, Reversions, Re-entry (future interest vested in

the grantor) (c) Concerned with Remainders (only if contingent), executory interest

(5) Applies only to NONVESTED INTERESTE) Step-by-Step Approach

i) Classify all the interests (1) "What's the state of the title?"

ii) Identify any future interest subject to the rule (1) COVE (if yes go on to the next question)

iii) If RAP applies, find a validating life to prove that the future interest is certain to vest or fail

iv) If RAP is violated, then strike out offending language.

F) Examples:i) O to A for life, then to B for life, then to C

(1) What is the state of the title

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(a) A: Possessory Interest in Life Estate(b) B: Vested Remainder in Life Estate(c) C: Vested Remainder in FSA

(i) Is it subject to the rule?(d) No - Not COVE

ii) O to A for life, then to B for life, then to O's widow(a) A: Possessory interest in life estate(b) B: Vested remainder in life estate(c) O: Contingent remainder in FSA

may or may not die (there may or may not be a widow)(i) Subject to the rule - Yes because O's widow is a contingent

remainder(ii) Apply the Rule - Finding a validating life

a. Who is the validating lifei. O, we'll know at the end of O's life if he has a widow or not

(iii) Violates Rule?a. No. It Doesn't violate RAP

iii) O to A for life, then to A's second child if he or she reaches 30 years old (A has no children at this time)

(a) A: Possessory interest in life estate(b) A's Second Child: contingent remainder in FSA

IT IS SUBJECT TO THE RULE(i) A is validating life(ii) Rule is violated

Strike out offending language (everything after the comma)(i) O to A for life

G) A future interest is created by conveyance at the moment of the conveyance. i) Vest - the vesting moment is generally the moment when the contingency occurs that

renders the interest certain to come into possession. (1) The moment of vesting for an executory interest is the moment the contingency

occurs. (2) The moment of vesting for a contingent remainder is when the condition that

makes it a contingent remainder disappears, regardless of whether the remainder becomes possessory at that moment.

(3) Future interest in the grantor are thought to be vested at the moment of creation.

H) Modern Approaches to Honor grantors intenti) Three to know

(1) Wait and See(2) Cy Pres(3) USRAP (US Statutory Rule Against Perpetuities)

ii) Wait and See (second look)(1) Wait and see if condition is violated during perpetuities period

(a) Wait until all the lives in being are dead and then 21 years.

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The court will wait until the condition occurs or the perpetuities period ends, whichever comes first.

iii) Cy Pres(1) Make it fit within the perpetuities period

(a) O to A for life, then to A's second child if he/she reaches 30 Knock down age 30 to 21 fit within perpetuities period

(2) Cy Pres and Charities(a) Determine whether the settlor’s charitable intent was general or particular.

Did the grantor intend to aid the particular charity in the trust.

iv) USRAP (Uniform Statutory Rule Against Perpetuities) (1) 90 years future interest must vest (from the date of the creation)(2) If doesn't vest in 90 years future interest is gone

(a) If an interest violates the 90 year wait and see period, the statue authorizes the courts to reform the deed, will, or trust in the manner that most closely approximates the transferor’s manifested plan of distribution and is within the allowable 90-year period.

I) Regulatory rulesi) Prohibiting the creation of new estatesii) The rule against unreasonable restraints on alienationiii) RAPiv) Interpretive rule prohibiting waste of the present estatev) The prohibition on invalid racial conditionsvi) The rule against unreasonable restraints on marriage.

J) Central Delaware County Authority v. Greyhound Corp.i) BLW to CDCA only for public purposes, but if not used for public purposes then

BLW has options to purchase(1) FSSCS

ii) BLW had a right of re-entry(1) Quite title - Action to make property interest more certain(2) Not Subject to FSSCS

iii) But option to purchase is future interest subject to rule(1) Because BLW may have to wait 300 years to get property(2) Trial court didn't apply rule because of public policy reasons

(a) People may not give land for public useiv) Court agreed with lower court but did not agree with public policy reason because

property was take out of market(1) Can't place restrictions that doesn't promote development . Option to purchase was

void(2) CDCA's interest became FSA

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11) Intellectual Property

A) Three Main Areasi) Trademarkii) Copyrightiii) Patent

(1) Trademark - symbols, identifiers, identify the course of a particular product or service

(2) Copyright - literary work, written(3) Patent - inventions/innovative work

B) Trademarki) Qualitex Co. v. Jacobson Products Co

(1) Used a special green-gold color on the pads that they sold to dry cleaners(2) Trademarked the color(3) Sued competitor for using the color

(a) Should there be a trademark on color? Jacobson - color changes according to light so can't trademark it Lanham Act - Trademark law

(i) Provides for the registration of trademarks created by state law, along with some rights that may supplement or displace state law

(ii) The language of the act is very broad and the court interpreted it to protect color

(b) Color informed customers that it was a Qualitex product(c) Color can indicate or provide a secondary Meaning

Secondary Meaning - is acquired when in the minds of the public the primary significance of a product feature is to identify the source of the product , other than the product itself.

(d) Functionality Doctrine - Prevents trademark mark law which seeks to promote competition by protecting a firms reputation from instead inhibiting legitimate competition by allowing a producer to control product features. Color is not a function

ii) Objectives of trademark law(1) Creating recognition(2) Promotes better products - branding(3) Protects producers(4) Discourages others from copying - promotes innovation.

(a) What purpose does trademark serve It notifies others that the word or color is yours. You can EXCLUDE

others from using it. (Protects against trespass) Prevent consumer deception

(i) They should be able to expect that the product was made by the manufacturer with whom they are already familiar and with whom they associate the mark

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iii) A trademark is any symbol or device used to identify a product. The identifying mechanism becomes protectable as a trademark when it is distinctive, that is, it points to a particular manufacturer or seller as the origin of the product. (1) A trademark is created only by actual use in the market place

iv) Trademark law is primarily based on state common law and not federal statute (Unlike patent and copyright law)(1) Failure to use a mark for a long time may constitute abandonment(2) Trademark only garners protection if they are used in commerce to sell good or

services(3) Words that describe goods generally (generic Names) cannot be trademarked

v) The Lanham Act provides notice of trademarks by allowing them to be registered with the federal patent and trademark office. (1) Those wishing to register a mark must assert that they are currently using the

mark in connection with a business or that they intend to do so shortly. (a) Use must commence within 24 months at the latest.

Registration places the whole world on actual or constructive notice of existing trademarks.

vi) Dilution – In 1996 the Lanham Act was amended to protect owners of “Famous marks” against dilution of the distinctive quality of the mark by giving them the right to obtain injunctive relief against competing use even if the absence of consumer confusion. (1) A Mark may be diluted because of Tarnishment or blurring.

(a) Tarnishment – occurs if a company sells inferior quality products. (b) Blurring occurs when a distinctive mark begins to lose its association with a

particular company. Relief is granted when a product is likely to cause dilution

(2) Anticubersquatting Consumer Protection Act (ACPA) – this law prohibits anyone from registering or using a domain name with “bad faith intent to profit from another’s trademark” (a) Anyone who obtains a domain name with the intent of selling it to the relevant

company would most certainly violate the act Most courts have held that the use of a company’s trademarked name in a

web site address is neither a trademark violation nor a violation of the Lanham Act when the name is not used for commercial purposes in a manner that would confuse potential customers.

C) Copyrighti) Grants owners of “original works of authorship” that are fixed in a “tangible medium

of expression” exclusive rights to copy. Distribute perform, or display those works publicly and to make derivative works from them

ii) Governed by the copyright act(1) Ideas and facts cannot be copyrighted only original expressions of ideas can be

protected by copyright law. (a) Copyright protection last for the life of the author plus 70 years.

D) Patent Law

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i) Patent law grants inventors of processes, machines, and compositions of matter a monopoly over their inventions for up to 20 years. (1) A patent will be granted only if 4 requirements are met

(a) The subject matter of the invention must be patentable (b) The invention must be novel(c) Nonobivious(d) Useful

ii) Moore v. Regents of the University of California(1) Plaintiff had hairy cell leukemia

(a) He was told he had to go to UCLA Medical for treatment The doctors at UCLA really wanted to research his sell and patent a cell

line(b) Plaintiff claims he has a property interest in his body parts and that the

Doctors taking them was conversion(2) Plaintiffs Argument

(a) Conversion Protects unlawful use of someone else's property

(3) Claim depends on if the court find that he had an interest in his body parts(4) Defendants argument

(a) Pure case of patent law Because it was a new, innovative work

(5) Where the cells protected?(6) Court held that cells are not covered under conversion law

(a) Moore argues that people have a property interest in their own likeness and that this is the same thing. He should have control over his cells

(b) Court says that lymphokines have the same molecular structure in every human and the same important function.

(7) Under fiduciary duty - the doctors were required to tell him what they were doing

(8) California Statute(a) Abandon property right when cell is excised from the body

iii) Reasons there was no conversion (1) Distinct(2) California Statute(3) Any violation resides in a privacy violation

(a) In a conversion claim you get money(b) In a privacy claim you get an injunction but not necessarily money

iv) Should Conversion be extended?(1) Looked at Policy Consideration

(a) Restricting access to necessary raw materials(b) Researchers would be afraid to be innovative because of strict liability(c) To extend conversion to this area should be a job for the legislature(d) Eliminate or discourage researchers from going into realm

v) Arabian Dissent(1) Concerned about the commodification of body parts

(a) Moore could put a price tag on his body parts

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If a right in Moore where recognized then it would open the door to many other things. Selling kidneys

vi) Broussard Dissent(1) Majority - it would ruin future medical research(2) But not true because people will still have to voluntarily give their body part

vii)Moore was addressed though(1) Tort(2) Property

(a) Could have look act contract - unjust enrichmentviii) Property law

(1) Triumph - protects works of Dr's(2) Failure - because it didn't adjust so person has control over their body parts to a

degree it didn't adequately address the issue(3) This case is more about Labor and Research

12) Publicity Rights

A) Definitions i) Laches - limitation in time on when you can go forward on a claim

(1) Encourages people to assert their rights, right awayii) Gross - something has been given to an individual personiii) Inter vivios - Among the living, during a lifetime

B) MLK Center for Social Changei) Four Main Issues

(1) Is right of publicity distinct from right of privacy?(2) Does it survive the owner after death?(3) Must the right have been exploited commercially during the owners life(4) What defines commercial exploitation

ii) Plaintiff wanted to stop the product and sale of the bust (1) Their strongest argument was

(a) Right of publicity - property right that allows a holder to grant exclusive use of the person image or likeness This right was not yet recognized in Georgia The right was derived from the right to privacy

iii) Why did court not use right of privacy?(1) Because right of privacy is not inheritable. It cannot be passed down

iv) Right of privacy and right of publicity are related(1) Pavessich v. New England Ins. co. (right of privacy)(2) Haelan Laboratories v. Topps Chewing Gum (right of publicity)

(a) Can't appropriate someone else's image if they didn't work for it --- they would receive a windfall.

v) The court finds a distinct right of publicity that can be passed down(1) If it weren't able to be passed down then the value of the right would decrease

significantly. So it’s necessary that they be allowed to be passed down.vi) Does it have to be exploited during a persons life time?

(1) No. Just because its not exploited doesn't mean its abandoned

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(a) Even if someone dies and then becomes famous the right should still be the same

vii)The court didn't need to answer the 4th question(1) Justice Weltner - Concurring (Dissent)

(a) Concerned with over protection and financial gain He describes the majority opinion as too concerned with financial gain He is afraid of too much dead hand control He also claims free speech rights may be inhibited

(2) Ex: Newsapers trying to create articles No property right is absolute it needs to be balanced against rights of

others(i) Courts have tried to balance the interest

a. Publicity Rights today are struggling with a companies interest in the likeness of a person v. the person actions (ex: Nike and Tiger Woods)

viii) Rational for the right to publicity – is to protect expectations formed while the person is building a career and to encourage investment in enterprise that exploit publicity values

13) Human Beings & Human Bodies

A) Dred Scott v. Sanfordi) Who had property claim?

(1) Sanfordii) From Dred Scotts point of view - we own ourselves and no one else caniii) Issue: Does Sanford have a property claim?

(1) Court framed the issue by asking (a) Is he a citizen?(b) If he is, he can go forward with the claim

(2) Court relied on two clauses in the constitution to show he wasn't a citizen (a) The right to import slaves until 1808(b) Fugitive Slave Clause - Owner can go to a free state to get a slave back

(3) The court held that blacks were not in the minds of the framers when they created the constitution

iv) Courts states that the Missouri Compromise violated property rights of White Citizens(1) Congress went beyond the scope of what is authorized by the constitution and

abridged rights of slave owners(a) This was only the 2nd time that the Supreme Court invalidated a

congressional law 1st time was in Marbury v. Maddison

(2) This case led to the Civil War and the creation of the 13th, 14th, & 15th amendment

v) What effect does this have on free slaves?(1) Courts decision took away there citizenship so property they owned in free states

could be taken away.

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B) The Antelope (1825)i) Ship taken off the coast of Africa, U.S. recovered it

(1) Issue: What is status of people who were caught. Should they be returned to owners?(a) Court held slavery was not contrary to law of nations because of common

state practice.ii) Positive Law - what the law is right now

(a) Whoever, was captured should be returned to their ownersiii) Have to protect Settled rights of property owners

(1) Reason slavery went for so long (property protection)

14) Adverse Possession

A) Under the law of adverse possession, a person who takes possession of property without the consent or permission of the owner, and thereafter maintains possession for a long time may acquire title. i) The adverse possessor only acquires the interest of the present possessor.

ii) Elements of Adverse Possession (1) C - Continuous - Property has been used by person on an ongoing basis (2) H - Hostile/Adverse - Act done that is against the true owner(3) A - Actual - Adverse Possessor is using the property(4) N - Notorious/Open - Everyone in community knows that person is using the

property - need someone to back it up. Acts like notice to true owner(5) C - Claim of Right or Color of Title(6) E - Exclusive - One person has Dominion and control of property (no one else)(7) S - Statutory Period - CL 20 yrs, but depends on the state.

(a) Have to establishes every element for a claim of Adverse Possession(b) Claim of Right - "I own this property" but no deed(c) Claim of Title - "I own this property, I have a deed but there is something

wrong with it"

B) Brown v. Gobblei) Who had ownership of land?

(1) Plaintiff had title(a) They had a surveyor survey land. They discovered 2ft track of land was there

but didn't do anything for 5 years(2) Gobbles assert adverse possession

(a) How does he show Continues use of property? Privity of estate - land passed down - trend from one owner to another Taking works with privity

(i) Tak on claim of adverse possession from previous owner to satisfy statutory perioda. Blevins->Fletcher->Gobble

i. Continuous - ongoing use of property

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Privity exist if there is a sufficient nexus or connection between the consecutive possessors. (i) The parties in privity must be successive possessor of the land (ii) Generally privity is satisfied when there is consensual transfer of

property right form the first possessor to the next possessor. (3) All owners enclosed the property, maintained and used the fences

(a) Adverse / Hostile - Building a fence is against the true owner's property right(b) Actual Possession - Fence, gardening, repairing fence (activities that the true

owner does) If had planted flowers with no maintenance that may not be enough to satisfy possession.

(c) Notorious & Open - Called witnesses, to show other believed it was there property.

(d) Claim of title/Claim of Right - Claim of right - didn't have a deed(e) Exclusive - Exclusivity controlled property(f) Statutory Period - Taking to meet 10 yrs.

(4) Claim of title v. Claim of Right (a) Claim of title - you own whatever is stated in deed not just what is used

Difference in outcome(i) Claim of right – Acquire property you actually used(ii) Clam of Title – Acquire entire property not just what was used.

(Constructive Possession)(5) Standard of Proof - Clear and Convincing evidence (high standard)

(a) Greater than preponderance of the evidence(b) Need greater certainty because you are taking someone’s property

ii) What if the Gobble's knew it wasn't there property?(1) Depends on jurisdiction

(a) If in Good faith state - it needs to be innocent(2) Majority of jurisdiction don't care about intent

(a) NY adopted Good Faith intent in 2008 Good faith can prevent more suits from going to courts

C) Romero v. Garciai) Used claim of title

(1) Statutory period was 10 yrs. she was on property for 15 yearsii) Why did she claim color of title?

(1) Water rights(2) 13 Acres of Land

(a) More than just the house Using Color of title if she wins she is owner of entire property not just the

houseiii) Deed was claimed to be defective because it failed to describe a specific piece of

property (1) Mother in law also failed to signed title(2) Deed was in Spanish - need to get translated

(a) But still unclear of what land isiv) Court said there was enough information to ascertain the boundaries

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(1) Paying taxes(2) Surveyor did survey

(a) Land was in a Parallelogram that came out to 12.95 acresv) Court ruled in favor of the plaintiff

(1) If she didn't have a deed but met all the other elements she would get only the property she used --> not the full 13 acres

vi) Look at Hypo in Notes(1) Anytime you give permission to someone it negates Hostile and Adverse

vii)The true owner’s actual knowledge of the adverse use is not required for the adverse possessor to gain title. (1) Possession is adverse only if it is without the authority or permission of the

true owner of the land.

D) Nome 2000 v. Fagerstromi) Charles began using property since 1944 or 1945 as a child. The relevant period

began when he manifested his presence there(1) They built a cabin and allowed others to use the property

(a) Allowing others to use the property doesn't defeat the interest because they were acting like hospitable land owner would

(b) If others stayed on land and used it others would be co-owners There needs to be only one controller otherwise no exclusivity

ii) This was a rural area in Alaska - Not used year round(1) But that was how property was normally used. Shouldn't defeat claim for adverse

possession(a) The claimant’s possession may be shared with third parties, provided that the

nature of that sharing is consistent with how an owner of land generally behaves. Ex: Leasing to a Tenant

iii) Prescriptive easement(1) The right of a non property owner to use someone else’s land (not ownership,

smaller stick in the bundle)(2) In Nome 2000 - got right to us the southern part of the property but not to own it.

E) In adverse possession there is a presumption that the use of the land is not permissive or against property owners interesti) Why is there this assumption

(1) Because if not it would exclude hostile standard. It allows us to use an objective standard.

F) Tacting – add pervious owners adverse use on to your use to meet the statutory period i) One way to stop statutory period is by giving permission, through oral, or written

agreement.(1) This negates non permissive use

G) Adverse Possession Intenti) Majority of jurisdiction its an objective test

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ii) Subjective Test(1) Good Faith – Person must be mistaken (NY)(2) Bad Faith – knew it wasn’t theirs and intended to take land (that is the only way

to prevail.)

H) Jurisdiction for Adverse Possessioni) Common Law (Cooter and Ulen)

(1) Certainty of ownership – True owners must make sure land isn’t encroached on(a) Overtime recognizes people that use property as true owner.

Uncertainty raises cost(2) Landowners who neglect to assert their property rights for a period longer than

the statute of limitations merit punishment(a) They are negligent stewards who have “slept” on their rights

ii) Encouraging Maximum use of land – Economic Justification (Sterk)(1) How is land being used?

(a) Privilege people who contribute to benefit of society and care for land. iii) Protect Reliance Interest – the adverse possessor are justified in relying on the

continuation of the status quo. (1) Doesn’t distinguish between permissive and non-permissive use.

iv) Moral Justification(1) Originally property is fungible but over time it becomes part of them.

Conversely it becomes less and less personal to the true owner and more fungible to them over time.

(b) To loose it would be like loosing part of yourself. (c) Cause more harm by removing from property (d) Adverse possessor has relied on their use of property

I) Adverse Possessor’s State of Mindi) Four Approaches Exist

(1) Objective test – rule in most states(2) Subjective Test based on

(a) A claim of right(b) Intentional dispossession(c) Good faith

ii) Objective Test(1) Lack of Permission – State of mind is irrelevant – all that matters it that the

possessor lacked permission from the true owner. iii) Subjective Test

(1) Claim of Right – This looks at a subject test because it means a possessors intention to appropriate and use the land as his own to the exclusion of all others. (a) However states that requires a claim of right does not requires proof that the

adverse possessor was thinking All that is required is that the adverse possessor act toward the land as an

average owner would act. Some states require a showing of a “claim of right” will allow the

presumption that actual possession is under a claim of right to be defeated

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if the evidence shows that the adverse possessor knew where the boundary was and never intended to claim property outside her boarders as her own.

Some states will deny adverse possession is they never intended to take over ownership.(i) In these states mistaken occupation of law cannot give rise to adverse

possession if the adverse possessor has no intention of taking over the property she does not own.

J) Community Feed Store, Inc. v. Northeastern Culvert Corp. i) Prescriptive easement – use property for a particular purpose (ex: Driveway)

(1) Functions like adverse possession. (a) Elements same as Adverse but related to USE –

Don’t say they own it they just say they use it. (2) Exclusivity – no really exclusive because it was used by customers and

deliverymen. But court got around it(a) If public used it there would be no exclusivity

(3) People had used land in same way for more than 20 years. (4) Presumption of permissive used

(a) Doesn’t negate hostility. It assumes acquiescence so still considered adverse. If actual permission it would negate hostility requirement under Common

Law.

K) O’Keefe v. Synderi) Stolen property – true owner doesn’t assert ownership.

(1) Discovery Rule – have 6 years to assert right upon realizing it was stolen before loosing right to obtain property (a) UCC – Purchaser Protection

When rely on Merchants expertise they have title against the true owner

(2) Demand Rule - Statutory period runs once the person makes a demand for the goods(a) Favors true owner more than discovery rule

L) DEFAULT IS 20 YEARS TO STATUTORY PERIOD M) Conversion Rule – starts the running of the statute of limitations when the property is

wrongfully taken and the owner dispossessed of the property

15) Nuisance Law

A) Nuisance – Annoyance that is completely lawful but that prevents someone from enjoying their property i) Non-Trespasser Substantial and Unreasonable Interference

(1) Loud Noise(2) Trash(3) Clothes lines(4) Dogs Barking

ii) Must considered different factors and weigh interference.

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(1) A nuisance exists only if the gravity of the harm outweighs the benefits flowing from the defendants conduct.

(2) Have to testify that there is a substantial and unreasonable interference with enjoying property.

B) Page County Appliance Center, Inc. v. Honeywell, Inc.i) TV’s not working properly because of radiation

(1) Affected ability of appliance center to show off TV’s(a) Why did case go to appeal?

The court was trying to determine what’s reasonable(b) Was plaintiff being hypersensitive?

No they were just trying to run their business (i) Hypersensitive – out of the ordinary, so peculiar that they won’t be

protected by nuisance law because it won’t be substantial and unreasonable.

C) Factors the Court Looks Toi) First in time – providing notice that nuisance exist

(1) Protects person causing nuisance because other person bought into situation ii) Types of Neighborhood

(1) Notice of what you can expect to do. (a) Works well with first in time

Ex: moving next to a farm complaining about his horses. iii) Hypersensitive iv) Malice or Spite

D) Balancing Test i) To determine the gravity of the harm

(1) The extent of the harm involved(2) The character of the harm involved(3) The social value that the law attaches to the type of use or enjoyment(4) The suitability of the particular use or enjoyment invaded to the character of the

locality and(5) The burden on the person harmed of avoiding the harm

ii) Utility of the defendants conduct (1) The social value that the law attached to the primary purpose of the conduct(2) The suitability of the conduct to the character of the locality(3) The impracticability of preventing or avoiding the invasion

E) How do you balance rights?i) Determine Reasonableness of Circumstances – witness, testimony

(1) Also depends on jurisdictionii) Two approaches to determining unreasonableness.

(1) Social Utility – Economic Function (2) Fairness – Fundamental fairness, notions of equity

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F) Remediesi) If the Court rules for the defendant then the case is dismissedii) Injunction

(1) Court issues an order to stop the conductiii) Purchased Injunction

(1) Parties buy off rights(2) Can also purchase nuisance (allow Christmas lights to be put up)

G) Fountainblue Hotel Corp v. Forty Five i) Construction expanding Fountainblue was casting a shadow on the other hotel.

(1) Court held no right to unobstructed light and air recognized by the court. (a) Rejected Ancient Lights Doctrine

The court held that the legislature should be the one to expand the law

H) Prah v. Morettii) Private homes

(1) Solar panels was the energy source (a) 1 st in time – Solar Panels were there first (but the court didn’t emphasize this)(b) Court rejects Fountianblue

Social Utility argument – encourage people to use solar panels (Green Movement)

Light used for an alternative source of energy

I) Light and airi) The vast majority of courts in the United States would hold that, in the absence of an

agreement to the contrary owners have an absolute right to develop their property w/o liability for any interference with their neighbors interest in light and air(1) One exception to this principle is that some courts will enjoin “SPITE FENCES”

– structures that are erected for the sole purpose of maliciously harming the neighbor by interfering with her access to sunlight.

ii) CA Has passed a statute called Solar Shade Control Act – which provides that after the installation of a solar collector, a person owning or in control of another property shall not allow a tree or shrub to be placed or if placed, to grow on that property so as to case a shadow greater than 10% of the collector absorption area upon that solar collector surface at any one time between the hours of 10am-2pm

J) Zone compliance does not insulate a person from liability for committing a nuisance,i) Ex: Building a restaurant in a neighborhood that is also zoned for small commercial

business

16) Easements

B) An easement is a right to make a specific limited use of land that is possessed by another. i) Same elements as with adverse possession

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(1) Except: Some states required that the true owner “Acquiesce” in the adverse use. (2) Occasional or sporadic use is likely to violate the continuity requirement (3) Requires clear and convincing evidence(4) Adverse possession claims result in a transfer of title to the adverse possessor

while prescriptive easement claims result in the right to continue the kind and amount of use that persisted during the statutory period.

C) Restrictions on use of landi) Easementsii) Covenantsiii) Equitable Servitudes.

D) Easements:i) Interest in landii) Restriction on the use of land

(1) Right of way onto someone’s land (a) Burden Estate/Servient Estate

Party hosting easement(b) Benefit Estate/Dominate Estate

Have access to easement (benefit of easement) iii) Easement in gross – attached to personiv) Easement in Pertinent – Attaches to property

E) Express Easements i) Factors of Express Easements

(1) Writing – Stating right of way on someone else land(a) It’s a right someone can sell or buy(b) Interest is passed down from successive individuals

ii) Two Types of Express Easements (1) Reservation – An easement is reserved if a grantor conveys an estate and whishes

to make some use of the conveyed property after delivery of the deed. The grantor reserves an easement over the conveyed property. (Reserves an easement for herself.)

(2) Grant – Grantor conveys an easement to the grantee. For a grant of easement, the instrument’s only purpose may but the conveyance of an easement, or the grant may be tied to the conveyance of an estate from the grantor to the grantee.

F) Implied Easement (Quasi Easement)i) Implied easement by grant and reservationii) Types of Implied Easements

(1) Estoppel(2) Prior Use(3) Necessity

iii) Easement by Estoppel(1) License – property interest given that can be revoked

(a) Taylor v. Holbrook

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Taylors improved the land and Holbrook benefited from the use of the improvement and didn’t stop Taylor from doing it

Holbrook then wanted to sell the right to use the property for $500 and Taylor spend $100 repairing (i) Did they have a license though?

a. It is fundamentally unfair to allow someone to improve the property and then take it away

b. There was an implied easement created by estoppel (ii) License can be irrevocable when someone improves upon the land

iv) Easement by Prior Use(1) Granite Property v. Mann

(a) When owner bought parcel A he was aware of easements He was on notice

(i) Easement was never recorded Apparent, Continuous, and Obvious.

(i) 3 Elements a. Common Ownership b. One parcel was previously used for the benefit of the other parcel

in a manner that was apparent and continuousc. Easement was reasonably necessary and beneficial for the

enjoyment of the dominate estatei. These factors show intent to create an easement

(ii) Why did court look at necessity?a. Court looked at as reasonably necessary compared to

i. Absolute Necessity – “Landlocked property” needed an exitii. Reasonable necessity is ok for easement by prior use and

absolute necessity is need for easements by necessity v) Necessity:

(1) Finn v. Williams (a) Absolute Necessity – Finn had no way of getting out of property

Person Being Land Locked(i) Who’s going to buy land if property is landlocked?(ii) Why didn’t court create right over strangers land?

a. Conveyanceb. Had Common Previous owner

i. Public policy favors people who have common owner then strangers who had no relationships

(iii) Ensures people will not sell land that is landlocked The policies underlying the doctrine of easement by necessity are

(i) To effectuate the intent of the parties(ii) To promote the efficient utilization of the property.

(2) An easement by necessity continues only so long as the necessity persists.(3) The courts focus on effectuating the intent of the grantor - NO EASEMENT of

necessity will be recognized if it clear that the grantor intended to sell and the grantee knew she was buying a landlocked parcel.

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G) Statutory Regulation of Landlocked Parcelsi) Some sates have enacted statutes empowering the owner of landlocked parcel to

obtain an easement over neighboring land for access to a public road by application to a public official and payment of compensation to the landowner whose property is burdened by the easement.

ii) Implied Easement by:(1) Estoppel

(a) Out of Fundamental Fairness(2) Prior Use

(a) Common Owners – at some point it split(b) Apparent and continuous(c) Reasonably Necessary (Reciprocal Relationship)(d) Buyer had Notice

(3) Necessity (a) Common Ownership of Land

Can’t be subdivided to create land locked property

H) Express Easementsi) Has to be in writing

(1) What does it look like?(a) Says Boundaries

Scope of Easement(b) Location(c) To whom it is being granted to

Person Property

(2) Location and scope/intent must be specific.ii) Enforcing Easements

(1) Writing(2) Notice to subsequent owners.

iii) Three different types of notice (1) Actual notice – told there is an easement(2) Inquiry notice(3) Constructive Notice – Easement is recorded somewhere

iv) Under CL – Easement is limited to a particular purpose Ex: Driveway(1) Over time use may change

(a) Parties can renegotiate an express easement Implied Modification is allowed by some jurisdiction

I) Transfer of Easementsi) The rights of use and enjoyment reflected by easements generally survives transfers

of the land that are subject to the easements (serviant estate)ii) The only way to convey ownership of an easement is to convey all or part of the

dominant estate.

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(1) The deed that conveys the dominant estate does not have to refer to the easement. The easement passes by implication to the new owner of the dominant estate. (a) A license is personal and not transferable.(b) The owner of the servient estate can argue that the new burden of the

transferred easement dramatically exceeds that which was reasonably anticipated by the original parties.

(c) The terms of the original easement may not be exceeded iii) Ownership of the easement is intrinsically tied to the ownership of the dominate

estate. iv) The servient estate owner cannot unreasonably interfere with the dominant estate

owner’s use of the easement.

J) Termination of Easementi) Easements last forever unless they are terminatedii) Depends on if Express or implied

(1) Express easement may say its only good for X years or good for a particular purpose

iii) Implied easements focuses on abandonment(1) If based on Necessity a dormant easement can rise up

(a) Ex: Finn v. Williams(2) Line between Dormant v. Abandonment

(a) Only in cases of necessity iv) Ways of terminating

(1) Agreement to end(2) Own Terms(3) Abandonment. (4) Merger (the holder of the servient estate becomes the owner of the dominant

estate(5) Adverse Possession by the owner of the servient estate or by a third party(6) Frustration of Purpose – purpose of the easement has become impossible to

accomplish. Although can try to modify it first.v) Marketable title acts – require that easements along with other encumbrances on the

property interest, be re-recorded periodically (generally ever 30 to 50 years) to be binding on future purchasers. (1) The purpose of these statutes is to limit how far back a buyer must look in the

chain of title to determine the validity of the seller’s title and the existence of encumbrances on the land(a) Failure to comply with the act may leave the easement owner unprotected

from a subsequent purchaser of the servient estate

K) Prescriptive easementsi) Nonconsensual deriving their existence form long-standing adverse use

(1) An easement by prescription is established only if the claimant’s use was adverse or hostile. (a) A common requirement of a prescriptive easement is that the landowner had

notice of the adverse claim and acquiesced to the adverse use.

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17) Covenants

A) Want to protect interest in property i) Promise to restrict one’s use of land for the benefit of anotherii) Enforceable against each other and subsequent owners

B) Whitinsville Plaza v. Kotseasi) Trust sold property with condition not to use the property as a discount store ii) Kotseas sold to CVS - violated agreement.

(1) How can Whitinsville Enforce Covenant?(a) To be enforceable it must be in

Writing (a covenant in a prior-recorded declaration or plat meets the writing requirement on the ground that the buyer is on notice of the prior recorded restriction and thus bound by it)

Intended to run with the land – enforceable against subsequent owners (Doesn’t violate RAP because there is no future interest)(i) A deed or lease shows intent for the covenant to be binding on future

posessors if it recitesa. That he covenant is made to the grantor or grantee and their heirs

or assignsb. That it is “intended to bind future owners” “it is intended to run

with the land” i. If the language is not clear the court generally holes that a

covenant benefiting the owner of neighboring land is presumptively intended to run with the land so long as it touches and concerns the land.

Notice (actual, inquiry, constructive) Privity of Estate

(i) Horizontal – original partiesa. Mutual Privity – exist when tow owner have a simultaneous

interest in the same parcel of land (landlord-tenant)b. Instantaneous privity – A covenant intended to burden one parcel

for the benefit of another can become attached to both parcels if it is created at the moment the owner of one parcel sells the other parcel. i. What kinds of relationships does horizontal privity excludeii. Agreements between neighbors that are not part of a

simultaneous conveyance of another property rightiii. Agreements between grantors and grantees that are not made at

the same time as the conveyance of the property interest burdened or benefited by the covenant.

(ii) Vertical – Another transaction afterwards Ex: Sale or exchange

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a. Relaxed vertical privity – imposes the burden on any future possessor of the burdened land and the benefit on any future possessor of the benefited land. (Approach taken by equitable servitudes law)

b. Strict Vertical Privity – included technical requirements that the grantor not retain any future interest in the land. i. This vertical privity is present when the owner sells the land

but not when she leases. (adoped by real covenants law)c. Relationships excluded from vertical privity

i. Successors in interest who have an estate of lesser duration than the prior owners (ex: landlord-tenant – doesn’t apply under relaxed version)

ii. Neighbors who are intended beneficiaries of the covenant but are not successor owners or possessors of the parcel owned by the covenanting parties

iii. Owners who derive their title from the grantor who imposed the restriction but who purchased their land before the sale of the parcel burdened by the covenant.

Touch and Concern (i) A covenant touches and concerns a parcel of land if its performance is

logically connect to the use and enjoyment of that parcel (b) A lease doesn’t satisfy vertical privity under common law, there needs to be a

sale of land According to the restatement it does now.

iii) Run with the land – (1) Are the original covenanting parties still bound and benefited by the promise(2) Can the successor owner of the benefited parcel enforce the restriction against the

successor lessee of the burdened parcel.iv) Whitinsville satisfied the first 4 requirements

(1) Touch and Concern(a) Considers the benefit on a particular estate with the burden on another estate

Burden was on Kotseas (obligation is intended to benefit current and future owners of the dominant estate)

Benefit was on trust (improves enjoyment of the land and increases market value)

(2) What if Whitensville never received notice and CVS moves in 10 years later they discover covenant?(a) Covenant would not be enforced because there is no notice – they didn’t rely

on it(b) As long as parties don’t care about it, it won’t be enforced.

(3) Where the burdens and benefits created by the covenant are such a nature that they may exist independently from the parties ownership interest in land, the covenant does not touch and concern the land will not run with the land.

v) Davison Brothers Inc. v. D. Katz(1) D. Katz couldn’t set up supermarket on George St. in order to protect the

Elizabeth St. store

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(a) Satisfied First 4 Requirements Didn’t touch and concern the land

(i) Court replaces touch and concern with reasonable approach a. Liberalized requirements

But public policy concerns (i) People needed to have a grocery store near by.

a. Interest in redeveloping the area. Legal Issue: Is a covenant enforceable against public policy?

(i) No injunction is not allowed – C-Town can staya. Money damages were ok

(b) Court looked at Intent Public Policy

(i) Replace touch and concern with damages

C) Ambiguous Covenantsi) Blevins v. Barry

(1) Covenant to keep neighborhood for residential purposes(a) Trying to maintain neighborhood. (b) Group home still met definition of residence not a business

(2) Covenants should be interpret narrowly in order to promote alienability (a) Reasons not to enforce covenant

Evidence of public policy If enforced covenant against the home it would violate discrimination laws

(3) If covenant is clear and fits the five requirements its enforceable (a) If Covenant is ambiguous courts interpret it narrowly in a way that favors free

use of land. ii) El Di Inc. v. Town of Bethany Beach

(1) No Alcohol, only wanted the area to be used for residential purposes (a) Didn’t want to destroy peaceful town atmosphere

(2) People began brown bagging (a) It was harder to monitor drinking (b) Also property was used for commercial activity when it violated the covenant

but they let that happen and didn’t challenge it (3) Enforcement of the covenant was no longer applicable for policy reasons

(a) Court agreed – narrowed ruling only places in commercial district (b) Benefit of covenant can no longer be enjoyed.

iii) Relative Hardship Doctrine(1) Focus is on harm

(a) Cost benefit analysis of enforcing covenant(2) Covenant will not be enforced if the harm caused by the enforcement (hardship to

the servient estate) will be greater by a considerable magnitude(a) Needs to be translated into monetary means otherwise its to subjective

(Cost/Benefit) $1,000/$100 – not enforceable (Cost/Benefit) $200/$100 – Likely enforceable

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(b) A mere change in economic conditions rendering it unprofitable to continue the restrictive use is not alone sufficient to justify abrogating the restrictive covenant.

iv) Changed Condition Doctrine (1) Benefit is no longer enjoyed

(a) Covenant will not be enforced if condition have changed so drastically that the enforcement will be of no substantial benefit to the dominant estate. Defeat the essential purpose of the covenant

(i) The test is stringent-few cases result in the application of the doctrinev) Shelley v. Kraemer

(1) Restrict who may live on the land through restrictive covenant (a) How did covenant come about

It was in writing, signed by 30 of 39 owners Shows intent to run with the land Constructive Notice Touches and Concerns the land – Burden who can buy the land

(i) Benefit the neighborhood who wants segregation (b) Didn’t satisfy privity

No Horizontal privity (i) 30 out of 39 signed agreement

(c) Argument of whether 14 th Amendment applies? Arguments against it was only applies to states not private parties Private parties could enter to racial covenants (state and federal rule

prohibit now) How did state get involved

(i) Through enforcement mechanism (had to go to court to get people out)a. If court tried to enforce Covenant it would be state action

i. This may have been too broad, but just wanted to uphold 14th Amendment

vi) Other Equitable Defenses(1) Acquiescence, Abandonment, or Unclean Hands

(a) A complaining party may be barred from enforcing the covenant if has tolerated or failed to object to other violations of the covenant Toleration may indicate an intent to abandon the covenant

(i) This may occur if the plaintiff:a. Has violated the covenant himself (unclean hands) orb. Has tolerated previous violations of the covenant by the owner of

the servient estate (acquiescence) orc. Has tolerate violations of the covenants by owners of other

restricted parcels in the neighborhood covered by the covenant (abandonment)

(2) Estoppel – an owner of a dominate estate who orally represents to the owner of a servient estate that she will not enforce the covenant may be estopped from later enforcing it, if the owner of the servient estate changes his position in reliance on the oral statement.

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(3) Marketable title acts – The covenant may be terminated if they are not re-recorded after a specic period

(4) Other ways to terminate a covenant(a) Language of the instrument – specified years unless renewed(b) Merger – Burden and benefit estate under the ownership of the same person(c) Release – Agree in writing to terminate (d) Prescription – open and notorious violation of the convent without permission

for the statutory period D) Remedies

i) Common Law(1) Injunction and Damages – its up to the court to determine (they look to public

interest)

E) Ways not to enforce covenant or modify covenanti) Changed Conditions Doctrine

(1) Benefit is no longer enjoyedii) Relative Hardship Doctrine

(1) Harm is to great to enforce (a) Harm out weighs benefit

iii) Might violate statute of constitution(1) Belevins, Shelly – equal protection clause.

F) Estoppel and Covenantsi) Some courts relax the strict writing requirement and apply the equitable doctrine of

estoppel to enforce representations made in sales literature or orally when buyer rely on them(1) Applies whenever in equity and good conscience persons ought to behave

ethically toward one another

18) Land Lord Tenant Laws

A) Javins v. First National Realty – Big Case – established implied warranty of Habitability – Changes landscape of Landlord Tenant Law i) Stopped pay rent because the land lord was violating housing regulations ii) Traditional Rule – Tenants are always obligated to pay despite condition of home

(1) Tenants were more interested in the land(a) Landlords duty was to deliver land, tenant had to pay rent and fix any issues

with the property.iii) Court said we need to adjust our way of thinking and change with the times

(1) Court also found inequality in bargaining power (looked at consumer protection cases). They also have more knowledge of the residence(a) Courts tend to favor tenants because of disparity in power

Shows shift from focus on land to the living enviromentiv) Housing Regulation

(1) Shows statute had been put in place as to what apartments should be (2) Set up minimum

v) Common law – implied warranty of habitability – should be livable

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(1) If not habitable tenant can stay without paying rent until the problems are repaired.

(2) Property law had to adjust to changes in society

B) Basic Elements of Landlord and Tenant Relationship i) Landlord has property and agrees to transfer temporary possession to the tenant, in

turn the tenant agrees to pay rent (usually in the form of money)ii) Lease – oral or writing (to be enforceable under common law it needs to be in

writing, statute of frauds)(1) Says what’s to be transferred (2) Period of Tenancy (provides protection to landlords to get land back)(3) Form of payment – Mostly exchange of money(4) Who the parties are

iii) Same rules apply to commercial leases(1) But there is a belief that they are in a better bargaining position, more

knowledgeable(2) Implied warranty of habitability – but applies to what property is being use for.

C) Four different types of tenancyi) Term of years – ends on agreed or specified date (has a definite, fixed ending date,

which is ascertainable no later than the time the tenant takes possession of the premises. If the duration is uncertain then there is no tenancy of years)(1) Future interest retained by the landlord is a reversion(2) Future interest in third party is remainder

(a) Death of either party does not terminate the tenancyii) Periodic Tenancy – automatic Renewal abased on period of time

(1) Month to Month – need to give notice (2) Can be either expressly created or implied. When the parties don’t discuss the

duration of their lease but the tenant pays rent, they have a periodic tenancy.(a) Death of landlord or tenant does not terminate the tenancy

iii) Tenancy at will – no need for noticeiv) Tenancy at Sufferance – holdover tenant, not considered a trespasser

(1) Holdover need to use eviction proceeding(2) Trespasser – can use self help (call police)

(a) If tenant doesn’t leave after lease expires but he pays rents – it becomes a periodic tenancy

(b) Not a trespasser because there was once a lease and the landlord has to go through eviction proceedings to get them out. Both landlord and tenant have to appear at a hearing

(i) NOT SELF HELP(3) If the landlord accepts rent checks from a holdover tenant may be held to have

agreed to a new tenancy calculated by the rental payment schedule. v) Most states require the lease of more than one year to be in writing to be enforceable.

D) Hypo: Signs lease and is given a key but the key doesn’t open the apartmenti) Landlord is required to give possession Key needs to open space. Otherwise no

delivery of possession

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(1) Traditional Rule – Didn’t need to give actual possession(a) Ex: Tenant would have to kick out holdover tenant

Minority Jurisdictions still follow this rule ii) What Remedy does tenant have

(1) Could sue, get back deposit, damages for having to live somewhere else. iii) Uniform Residential Landlord and Tenant Act

(1) Landlord can enter property but cannot abuse that right(a) Problem on PG 749.

iv) Summary Process – expedited court proceedings to allow relatively quick evictionE) Occupancy - Actual Possession

i) Under the current majority rule, the landlord has the duty to deliver possession of the rented premises to the tenant at the beginning of the leashold. (1) Have to remove prior tenants that hold over within a reasonable period of time

ii) Failure to deliver actual possession of the premises to the new tenant constitutes a breach of the lease by the landlord.

iii) Access – Uniform residential landlord and Tenant Act iv) If Landlord dies and property goes to heirs

(1) Lease survives– only for term of years and period of tenancyv) If property has been foreclosed Tenant can still stay. More issues arising with this

today. F) Landlords Right to Transfer the Reversion

i) If the landlord transferes his property interest the new owner receives what the landlord was able to sell or give, that is the landlord’s reversion subject to tenant’s leasehold, with the attendant contractual rights to collect rent and to enforce the other terms of the lease.(1) The tenants leasehold survives (2) If the land is mortgaged and the landlord forgot to pay the mortgage and the

property is foreclosed the tenants rights depends on whether the lease or mortgage was established first.

(3) If a landlord owned a life estate and dies then the tenants lease also ends because he landlord cannot convey more than he has

ii) If tenant wants to leave he can: (promotes alienability(1) Assign it to someone else to take over. Conveys property to someone else (does

not have any future rights or interest). Assignee is directly responsible to the landlord

(2) Sublet it – tenant is still tied to lease. Still responsible for everything. Retains future interest. (ex: Sublease doesn’t pay rent landlord can go after tenant, if sublease is a holdover, tenant can sue so long as there is time left on the lease)

(a) Usually landlord has to consent to protect property owners interest G) Minjak Co. v. Randolph

i) Tenant had water leaks, continuous construction, dangerous walking conditions, dust covering everything including precious electrical instruments. (1) Tenants sought punitive damages because the landlords conduct was morally

culpable. (There was something so egregious about his conduct) ii) Tenants were constructively evicted

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(1) Did leave but apartment condition violated the warranty of habitability iii) How does a claim for constructive eviction affect rent?

(1) Abatement don’t have to pay full rent (2) Under Common law to raise the defense of constructive eviction you have to

leave the property. (a) The court found that this didn’t make sense because the landlord can get out

of the responsibility to fix the land and in this case they could still use part of the space.

H) Blackett v. Olanoffi) Landlord owned both a bar and an apartment building that were very close to one

another. (1) Tenants claimed they were deprived of quite enjoyment because of the loud noise

coming from the bar.(quite enjoyment is similar to warranty of habitability but less egregious).

(2) What if landlord bought residence into the bar areas (the bar was there first)(a) Landlord could use the defense that the tenants had notice before moving in

What could the tenants do then?(i) Can’t withhold rent(ii) They could report noise violations based on sound ordinances(iii) They could argue nuisance law and try to get an injunction.

a. Landlord could claim that the tenants came to the nuisance but then the tenants would claim that the community is changing and becoming more residential.

b. Also depends on how the landlord advertised (“This is a very family friendly neighborhood”)

Regardless the landlord should do whatever he can to reduce noise.

19) Real Estate Transactions

B) A lot of laws focus on protecting home ownership i) Steps in selling a home

(1) Decide to sell on your own and enlist a broker(2) Renovate or clean up the house(3) Research the market to see what else is selling and if it’s a good time to sell(4) Hire appraiser to evaluate property to see how much its worth

ii) If hire a broker (1) Talk about terms of the agreement Commission 4%-6$

(a) Advantages of a broker Networking access to buyers Negotiating experience Experienced in dealing.

(b) Types of arrangements Exclusive Agent – The broker has the right to collect the commission if

the property is sold to anyone during the period of the contract (even if the owner sells the house herself).

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Exclusive agency – Any broker working for the specific agency can sell the house and the firm gets the commission

Open or Non Exclusive – Multiple brokers and whoever sells the house gets the commission.

(c) Agreements that have been Outlawed Net Listing - the broker takes their commission out of the purchase

price(i) Creates a conflict of interest between the seller and the broker

Option Listing - the broker promises to buy the property at a set price, revealing the commission only when the option is exercised(i) Under this arrangement the broker has an incentive to suggest to

the seller that the property is worth less than it really is(d) Two Main considerations in a Broker/Seller Relationship

Who has authority to sell? Commission Rights?

(e) What can a broker do to help sell the house Listing – advertise the house Schedule an open house Phone calls to former clients

(f) If house doesn’t sell right away can: Lower the listing price Take off the Market Reduce brokers commissions

(g) What are the brokers duties Sell Inform Seller of Buyers

(h) Sellers Duties: Pay upon sale

(i) Seller and Broker Duties to Buyers Common Law – Caveat emptor – Buyer find house “as is” no duty to

disclose defects (i) This rule has since been abandoned

Modern Rule(i) No Duty to disclose apparent defects(ii) Must disclose latent defects and latent information (other information

they would have no reason to know) a. Smith Hypo:

i. Foundation Problems – Duty to Discloseii. Haunted House – Duty to Discloseiii. Sex Offender Living Next Door – Not Clear

(2) Once an offer is made unless the agreement says otherwise the broker must relay the information to the seller(a) Example of when doesn’t have to relay the information

We will not entertain bids lowers than xxxxxxiii) Closing the agreement

(1) Get Lawyers

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(a) Draft purchase and sales agreement Identify the property Identify the parties Name Price

(b) The deed must: Identify the parties Describe the property being conveyed State the grantors intent to convey the property Contain the grantors signature.

(2) Get deposit when signing the sales agreement also specify time for closing(3) In between purchase agreement and closing – ensure title is clear, background

check on buyer, buy title insurance to make sure no encumbrances on the property(a) Two Critical Points

Purchase Agreement Closing

iv) The buyers obligations are contingent on (1) The seller’s ability to convey marketable title(2) The buyers ability to get adequate financing for the rest of the purchase price(3) Inspections of the premises

C) Johnson v. Davisi) Non-disclosure of roof damages

(1) Court finds that sellers can’t stand behind caveat emptor w/ regard to real property (a) Protecting fair dealings

ii) Apparent defects:(1) The seller does not have to disclose apparent defects because the buyer is on

noticeiii) Latent Defects:

(1) Foundation Cracking, Termites (a) The seller and the broker have a duty to disclose

(2) Material issue that affect market value must also be disclosed(a) The house is haunted (b) A registered sex offender lives next door (open to interpretation)

iv) Opinions are not misrepresentations – “this house is beautiful”(1) Mr. Johnsons misrepresentations affected the terms of the transaction or induced

the buyer to buyer D) Misrepresentation v. Nondisclosure

i) Nondisclosure – not providing infoii) Misrepresentation – Outright lie

(1) Affirmative Statement that(a) Is known to be false(b) Material to the transaction(c) Is reasonably relied on by the buyer in deciding to purchase(d) Causes damage as a proximate result of the lie

E) Purchasing a House i) Parties sign purchase and sale agreement (usually a deposit is made)

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ii) Executory Period – period between signing the purchase and sale agreement and the closing.(1) Inspection(2) Financing(3) Title Search

iii) Closing(1) Buyer agrees to pay entire amount(2) Seller delivers deed to buy

(a) DEED HAS TO BE PHYSICALLY GIVEN TO THE SELLER iv) Real Estate Settlement and Procedures Act (RESPA) – Requires disclosure of all

settlement cost. v) IF the parties intended the promises in the purchase and sale agreement to be

enforceable after the closing, the deed must normally provide explicitly that the purchase and sales agreement will survive the deed.

F) Recording Acts:i) Type of protection given to buyers regarding recording.

(1) Smith Hypo: Buyers find out about foundation problems and wanted out of the contract (return of deposit and didn’t want to pay(a) Remedies

Generally difference between contract price and market value at the time of breach plus return of deposit and other expenses.

(2) Hypo: House burns down during the executory period(a) Generally the buyer bears the risk of loss (buyer insurance)

But some courts put the risk of loss on the seller (3) Deeds Terms

(a) Identify Parties(b) Describe property being conveyed (c) State grantors intent to convey(d) Contain grantors signature

ii) Delivery(1) The deed must be delivered to the grantee/done or a third party (lawyer)

(a) Hypo: All the elements of the Deed where included But upon delivering the deed the person dies (driving to deliver it) – No

Delivery(b) Hypo: The person puts the deed in a safety deposit box and txt the person

receiving it that its there. They then die in the car on the way home Depends on jurisdiction

(i) Could be constructive deliverya. Informed buyer and put in the deposit box

i. Ex: Giving the deed to a lawyer is usually sufficient. G) Damages

i) Buyers Remedies (1) Specific Performance(2) Damages(3) Recession

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(4) Vendee’s Lien – Sellers breach of the purchase and sale agreement creates a debt owned by the seller to the buyer that is the amount of the deposit which is secured by a lien on the property (rarely used)

ii) Sellers Remedies (1) Specific Performance(2) Damages(3) Rescission and Forfeiture of down payment(4) Vendor’s Lien – seller has a lien on the buyer’s equitable title and that the

property can be sold to satisfy the buyers obligations to pay the est of the purchase price to the seller.

H) Deliveryi) A deed must be delivered to the grantee to effectuate a transfer of ownership.

(1) The purpose of the delivery requirement is to ensure that the grantor intends to part with the property and to clarify who owns it. (a) Some courts are reluctant to find delivery unless the deed has been physically

handed over to the donee or to a third party who has instructions to deliver the deed.

ii) Warranties of Title(1) Six standard covenants have been developed

(a) Present Covenants – these are breached if at all at the time of the conveyance (closing). That is when the statute of limitations starts to run Covenant of Seisin – The grantors promise that he owns the property

interest he is purporting to convey Covenant of the right to convey - grantors promise that he has the power

to transfer the interest Covenant against encumbrances – grantors promise that no mortgages,

leases, liens, unpaid property taxes or easements encumber the property other than those acknowledge in the deed itself.

(b) Future Covenants – These covenants are breached, if at all after the closing when the disturbance to the grantee’s possession occurs. The statute of limitations starts to run when the grantee’s possession is disturbed. Covenant of Warranty – The grantor promises to compensate the grantee

for any monetary losses occasioned by the grantors failure to convey the titled promised in the deed

General warranty deed – covenants against all defects in title Special Warranty Deed – Limits covenants to defect in title caused by

the grantors own acts but not the acts by prior owners Quitclaim Deed –Contains no warranty or title. It purports to convey

whatever interest in the property are owned by the grantor Covenant of Quite Enjoyment – promises the grantees possession will

not be disturbed by any other claimant with a superior lawful title. Covenant of further assurances – Rarely used. This covenant requires

the seller to take further steps to cure defects in the grantors title such as paying and adverse possessor to leave the property or paying the owner of an encumbrance to release the encumbrance.

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(c) Some states have standardized covenants by statute

I) Remedies for Breach of Warranty of Titlei) The most widely used covenant is the covenant of warranty.

(1) The damages for breach of covenants of warranty, seisin, right to convey, and quiet enjoyment are generally measure by the price paid for the property that has been lost. (a) This price is generally near the fair market value of the property at the time of

closing. (b) If the breach is discovered after the closing, the ousted buyer will not be able

to recover the market value of the property at the time the buyer was ousted; moreover, the market value may be much higher than the original price.

(c) The damages for breach of the covenant against encumbrances is either the cost of removing the encumbrance or the difference between the value of the property without the encumbrance and with it.

J) Recording System1. The recording system is intended to provide buyers of real property with the security

of knowing that they will really own the property interest they are buying.i) Race Jurisdiction – 1st to record winsii) Notice Jurisdiction – Subsequent purchaser prevails over earlier one only if they DID

NOT have notice of earlier purchaseriii) Race/Notice – Subsequent Purchasers wins over prior unrecorded purchaser if:

(1) They had not notice of prior Conveyance at the time she acquired the interest(2) She records before the prior instrument is recorded.

(a) The Common Law rule existing before the recording system was “first in time, first in right”

(i) In cases of property interest not covered by the recording act, the common law rules of first in time first in right applies.

K) How to conduct a title searchi) Grantor-grantee index

(1) The index describes the bare outlines of each transaction, a description of the land, the type of interest conveyed, the date recorded, the book and the page numbers where a copy of the document can be found.

L) Sabo v. Horvathi) 1965 – Lowery Applied to buyer property with BLM ii) 1968 – BLM Recommended Patent (convey property)iii) 1970 - L issues a quitclaim deed to H iv) 1973 – H Records the patent that was issued v) 1973 – L conveys the land to S vi) 1973 – S records

(1) Quitclaim – only give what you have(a) Alaska is a race/Notice jurisdiction

Constructive Notice – is someone recorded you have to check it out Actual Notice – Being told by someone else

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Inquiry – Someone living on property you are trying to buy and didn’t inquire why.

(b) Did S have notice? No because the deed to H was outside the chain of title – it was a wild

deed (i) So if S looked at the change of title he would see the government

conveyed the land to L and L conveyed it to S. (ii) S gets property(iii) H because of fraud could get the difference between the contract

price and the market price as well as other damages but not the land (2) In a race jurisdiction it is the first to record from the original grantor

(a) Ex: O to A, A to B (B record deed from A to B) O to Z (Z Records)

(i) Z would win because B did not record the conveyance from O to A. (3) Shelter Doctrine – Protects bona fide purchaser to convey property even if 3rd

party is on notice of earlier conveyance.(a) This doctrine allows bona fide purchasers to convey title even if they

subsequently find out, after they buy the property, of the earlier conveyance.(b) The bona fide purchase who records first obtains rights in the property over

the earlier buyer who did not record.

20) Constitutional Protection of PropertyA) What is property?

i) Focuses on Dominion(1) CL Dominion & Exclusion

B) What is property law?i) Not as narrow as just dominion and exclusion but focuses on relationships between

people C) The constitution confers

i) State governments with police powers (10th amendment) ii) Federal and State government determine how property can be used.

(1) Ex: Redevelopment of time square(2) Atlantic Yard

D) Regulatory Takings Lawi) Requirments

(1) Public Use(2) Governments Taking (usually not an issue. Just because private companies are

involved it doesn’t mean the government isn’t involved)(3) Just Compensation

E) Kelo v. City of New Londoni) Why did they want the property?

(1) Wanted to help unemployment(2) Government felt that it was on its way to becoming a blighted community (3) A lot of people had left the city (4) Pfizer was going to move in a revitalize the neighborhood

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(a) Cases referred to Berman – upheld congress’s ability to take blighted property for schools,

streets, and public facilities(i) Area was already blighted

Midkiff – Land was concentrated in 22 people (i) Government took some property to give to tenants

a. Compared to Maine – where one individual controlled a large portion of the property. In Hawaii property values were much higher and property was more expensive because it was a tourist area.

b. By distributing the property to more people it reduced the property cost in Hawaii.

ii) How did the plaintiffs argue?(1) Economic Development is not “public use”

(a) Wasn’t used to expand, railroad, streets The public in general will not be using the property

(b) Taking from one private owner and giving to another private owner (c) Economic development should be proven to a reasonable certainty

iii) How did the court justify the taking?(1) It would benefit the community

(a) Create Jobs(b) Retail Shops(c) More Visitors

In general prevent the area from becoming blighted (i) The court felt that this was to much of an impediment because its too

difficult to doiv) But the framers intended that it be used for public use as specified in the 5th

Amendment?(1) The court held that the “public use” rule had become to unworkable

v) Just Compensation(1) Market Value

(a) A lot of times people will get paid more to have the job go forward. (2) Emotional Value

(a) People argue that there property is worth more than market value vi) The court held the Breman was advocating economic use but Kelo expanded Berman

because the area in New London was not blighted yet. vii)The court is very differential to the legislature

(1) By expanding public use to public purpose it gives the government more discretion

viii) State v. Shack (1) Government limited a persons right to control who goes on their property

ix) Kilo highlights many of the topics covered in class

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Strict Liability RulesReasonableness

DoctrinesFree Use Rules

Prior Appropriation of Water Nuisance DoctrineNo easement for light and air

Natural Flow Doctrine for diffuse surface water

Reasonable use doctrine for water

Free use or absolute ownership of ground water

Malice doctrine for spite fences

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