Property 3

Property Outline Fall 2003

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IntroductionI. General

A. Property:i. Relationships between people with respect to things.

B. Possession vs. titlei. Possession: usually dominion and controlii. Title: ownership

a. Common law favors either or results, not shared interest.C. Bundle of rights: Property is a bundle of rights, not necessarily all present: right to possess it, use it,

exclude others from using it (most fundamental), transfer by gift or by sale.II. First Possession: Acquisition by Discovery, Capture, Creation

A. Acquisition by Discoveryi. General rule: The first in time to discover land in a new world has exclusive property rights, even as

to the native people. This was agreed upon by European powers.ii. Johnson v. M’Intosh (p 3)

Facts: Johnson purchased it from the Indian tribes on the land (1773 &1775),M’Intosh got it later from the US gov’t. Johnson sued for ejectment.

Issue: Can Native Americans convey good title to lands they occupy and that areclaimed by the US Govt?

Analysis: Have to trace the “chain of title.” Mere occupation may not give you legal title.Only a state can discover, and the first discoverer has exclusive property rights(Britain) – before discovered, there was no title. Native Am only had right ofoccupation. Britain gave it to US, who gave it to M’Intosh. Native Am had notitle to transfer (they in some sense conveyed it already to Britain).

Concl: Only first in time to “discover” real property has power to transfer title.Possession ≠ title. Native Americans couldn’t convey to Johnson.

a. Note: The law has to reflect some notion of reality and of history, title is European created, this isnot about logic but experience – the logical construct of the law is imposed on the history. Ifcourt had gone other way, would have undermined all claims of title given by US govt.

iii. Labor Theory of Value (Locke): Accessiona. General rule: Want to recognize the value of the labor people invest in property. We want to

encourage people to invest productive labor.b. Law of accession comes into play when one person adds to the property of another. What

happens when someone uses someone else’s property to make something? Who owns theproduct?1. Traditional rule: person who owned original property is the owner, but if the improver

changed it so much that it is a completely different thing, it belongs to the improver (grapesinto wine).

2. Modern rule: disproportionate value – if value of improvement is disproportionate to thevalue of the materials, improver gets it. Usu has to be done in good faith.

c. This theory applied to Johnson v. M’Intosh: Native Americans didn’t put an adequate amount oflabor into the land to perfect a “property” interest in the soil.1. Monopsonist – sole buyer. Govt was sole buyer, which reduced the cost they had to pay.

d. Property confers and rests on power. Owners have a form of sovereignty over others because thesovereign state stands behind the owner’s assertion of right.1. Critical Legal Studies – reject the notion that the law is neutral and apolitical.2. Critical Race Theory – develop a jurisprudence that takes racism into account.


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B. Acquisition by Capturei. General rule: Property is acquired by actual capture. Mere pursuit is not enough.ii. Pierson v. Post (p 19)

Facts: Post pursues the fox on un-owned land, Pierson killed the fox (in sight of Post) and took it away.Issue: Does Post own the fox because he was in pursuit, or does Pierson own it because he actually

killed and captured it? At what point between wild animal running free and physical possession isownership established?

Analysis: Ferae naturae: wild animal (on un-owned property) isn’t owned until capturedDictum: When wild animal is wounded to the point at which it’s liberty is taken away – mortallywounded, cornered with no hope of escape – it could be considered to be owned.

Policy: Ruling the other way would create a “fertile source of quarrels and litigation” – actual capture iseasier to prove.

Dissent: Thinks foxes should be killed, so that the rule should encourage pursuing and killing. Pursuit withreasonable prospect of success = title

Rule: Capture is good enough for title. Saucy intruder wins.

a. Ferae naturae: wild animal (on un-owned property) isn’t owned until capturedb. Return to natural state: if animal escapes, ownership right is extinguished.c. Majority opinion is a rule (clear) – capture = title, dissent is a principal (muddy) - Pursuit with

reasonable prospect of success = title.1. Principals are more flexible but more costly to administer2. There are few examples of hard and fast rules. Rules are cheaper to administer and the

outcome is clear.iii. Ratione soli - owner of the land has constructive possession of wild animals on the land.

Landowners regarded as the prior possessors of any animals ferae naturae on their land, until theanimals take off.a. This is a “construct,” a legal mechanism for determining ownership without actual possession.

This enforces my real property rights, discourages trespass.b. CA: Animals wild in nature are possessed by: landowners while they are on the property (if they

claim ownership); when tamed; or taken and held in possession; or disabled and immediatelypursued.1. In this case, would it change the result in Pierson? Post could argue that he disabled the fox

and pursued it. Pierson could still argue that he had taken it and held it in possession. Thisstill helps Pierson more (but it does put Post in a better position than he would have been,right?)

c. Many states don’t follow ratione soli. People have right to keep hunters off their property under atort right (trespass) and not as a property right over the animals.1. Could you be guilty of trespass and own the animal? Probably yes, although then you are

encouraging trespass.iv. Custom and usage rule – court makes a decision about ownership based on the custom of the

industry and whether a ruling would impair industry.v. Ghen v. Rich (p 26)

Facts: Ghen is a whaler. He struck a finback whale that floated to the shore. It was found by Ellis, who,against Provincetown finback whaling custom, auctioned it to Rich, who sold the oil. P-towncustom – whaler shoots whale, which sinks to the bottom and surfaces days later somewherealong the shore. Finder tells whaler (lance has identifier on it) and gets a finder fee. Ghen sued forprice of oil and argued that it was his property.

Issue: Who owns the whale, the whaler who killed it or the finder?Analysis: Custom for these whales was different from that of other whales. The rule is that a whale killed

(and attached to the boat by rope) is the property of the boat owner. This whale sinks to thebottom and later surfaces days later.

Policy: If court doesn’t protect the customs of the whaling community in this case, whaling will cease.Rule: Custom or usage rule: Court makes a decision based on the custom of the industry.


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vi. Barry Bond’s baseballa. Spectator caught the ball, fell down in the fray, someone else picked it up. Who owns the ball?b. The court ordered the proceeds to be split. This is very rare. Usually it is either or. Why is that?

There really is no good answer. Courts look at property matters as either or.1. For a long time, people thought of the law as eternal truth that had to be discovered, and this

implied absolute winners and losers. Now, we think that the law is crafted. This is breakingdown the law that we have to have either or determinations.

vii. Fugitive resources: Oil, gas, water found underground under property owned by more than person.a. Traditional: this is like wild animals (ratione soli and the rule of capture). People own things on

their property if they capture it.b. Then, realized this is really not smart. It tells everyone to pump as fast as you can – if you don’t

get it, someone else does. This also reduces how much can be extracted (if do it slowly, can getmore) and led to depletion of ground water. Inefficient production and no conservation over thelong term.

c. Western states governed ground and surface water by first in time1. First person who appropriates and puts it to reasonable and beneficial use has superior right

to later people.2. Eastern states, more water, riparian rights – each owner has right to use subject to the rights

of other owners.viii. Externalities – Exist whenever someone makes a decision about how to use resources without

taking full account of the effects of the decision. Externalities are a function of transaction costs,and they encourage a misallocation and inefficient use of property.a. External costs – X doesn’t consider costly effects if they fall on others, even if the extra amount

it would cost him to fix it is way less than the overall cost to the community if he doesn’t. Thisuse is “inefficient” because another use would increase the value of the resources involved andmake all parties better off.

b. If other parties offer to pay, X has to think about how his actions affect others, and thus“internalizes” the externality.

c. Transaction costs: If it is too hard to make an agreement, then the transaction costs are too high– because there are lots of parties, the cause/effect is unknown/uncertain, those who don’tcontribute can get a free ride if they don’t.1. Freeriding problem occurs when have to extract payments from a group where the benefits

will confer on the group as a whole.ix. Demsetz and externalities (p41)

1. General rule: Primary function of property rights is to guide incentives to achieve greaterinternalization of externalities. This happens when the gains of internalization becomehigher than the costs.

2. Communal property: Costs of agreement and costs of policing use of communal ownershipmay be high.A) Communal ownership results in great externalities, and the more owners, the higher the

cost of internalization. Transaction costs are high.B) People have incentives to over use and greater tendency to act contrary to collective best

interest.3. Private owners have an incentive to maximize resources, and have less externalities.

A) Promotes economic efficiency and free transferability.B) Private ownership “nourishes diversity.”C) Private ownership reduces externalities by transforming external costs into internal costs

4. Criticism: assumes that efficiency maximizing behavior for the individual means efficiencymaximizing behavior for society.

b. The anti-commons: multiple rights to exclude, encourages underconsumption


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C. Acquisition by Creationi. General rule: creator has exclusive rights to tangible property (chattels).

a. For a long time, property law was unfriendly to intangible things. Concept of property came fromland.

b. Creator’s ownership rights in intellectual property may be uncertain unless protected by statutec. Quasi-property – property rights over intangibles with respect only to certain others, such as

business competitors, but not to the general public (INS v. AP).d. Competition creates a better deal for the consumers (Cheney Bros & Chanel)

ii. INS v. AP: copycats (p 60)Facts: AP releases news for members. AP has 3 complaints about INS’s behavior: 1) bribing employees,

2) inducing AP members to violate by-laws, 3) copying news info from bulletins & early editionsand selling to newspapers. First two already decided by lower court. AP says INS’s actions violateAP’s property rights in the news and constitutes unfair business practice. INS argues that themoment AP makes the news public, it is available to all.

Issue: May INS be restrained from taking news from bulletins and newspapers (intended for public) withpurpose of selling it to INS clients?

Analysis: News facts themselves are not property, and reports are not of literary value so that copyrightswould apply. What INS is doing is unfair business practices. AP has right to quasi property withrespect to INS b/c it is their “stock in trade.” AP is protected from INS but not from the generalpublic. AP has an ownership right that transcends the physical aspect of the property.

Policy: Keep businesses from unfairly profiting from the labor of another. You can’t take something to“unfairly profit,” even if it is in the public domain. Want to encourage gathering news and keep itprofitable.

Rule: Businesses can have quasi property where their right to intangible property is protected againstanother business using it to profit unfairly from their labor, but are not protected against thegeneral public.

iii. Cheney Brothers v. Doris Silk Corp. (p 64)Facts: P makes silk designs each season, some succeed. D copied successful designs and sold for

cheaper. P cannot patent all the designs (prohibitive, takes too long) and cannot copyright (nowords). P requests protection only during the season.

Issue: Are the silk designs quasi property as the AP news in INS v. AP?Analysis: Can’t ask for limited protection. INS v AP was specific to that situation, not a general rule. To

prevent imitation of a design would give too great power to designer. There is no common lawcopyright protection.

Policy: We want to encourage competition b/c it is a better deal for the consumer. Imitation of the newsdoesn’t improve it, but imitation helps here to lower the price.

Rule: Promote competition to prevent monopoly and lower prices, but must be balanced againstincentive to produce, invent.

a. Copyrights1. Protects the expression of ideas, not the ideas themselves.2. Copyright is federal law. Want copyright protected across the country b/c otherwise it would

interfere with commerce. This is a good policy argument, but it is not one we have acceptedin most areas of property law (which is primarily state law).

3. The Constitution specifically called for a national copyright /patent law.4. It is a reward system, and you want to provide incentive for people to keep creating new

things. We’ll give you property rights so you can make money off of it in order to promoteprogress.

5. Patents only last for 20 years. Copyrights keep being extended (Mickey Mouse).b. Smith v. Chanel (p 65)

1. Smith advertised product was same as Chanel No. 5. Allowed to do so b/c there is a publicbenefit: imitation & competition = lower prices. Expenditure of $ is not a legally protectedright.


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iv. Virtual Works v. Volkswagon (p69)Facts: Virtual Works, ISP, bought vw.net, knowing that it was remarkably similar to Volkswagon’s

trademark, VW. They thought about possibly selling to VW later. Virtual Works used it for 2years, then contacted by VW to buy from them. Virtual Works said would sell to the highestbidder.

Issue: Did Virtual Works, in bad faith, purchase vw.net in order to profit from its similarity toVolkswagon’s trademark?

Analysis: There is a law passed by Congress prohibiting cybersquatting. To be illegal, you have to have abad faith intent to profit, and there is a whole list of factors for determining bad faith. VirtualWorks met these criteria: knew it was similar, intended to profit, could have bought another name,never went by VW.

Policy: Fair competition is good, unfair competition is bad.Rule: Bad faith use of another company’s registered trademark in a domain name is illegal. Unfair profit

from someone else’s good name.

a. Cybersquatters = Virtual Worksb. Parasites are people who register domain names similar to TM and then use them in ways that

tarnish image.c. Poachers: register domain names similar to other orgs in order to disseminate unfavorable info

about them.d. Dilution – use of a TM may dilute or blur distinctiveness of TM.

v. Property in One’s Persona (p 77)a. Used to be all about privacy: Woman whose face was on a flour sack had to consent.b. Then became more about right to exploit one’s image for one’s own profit.

1. Vanna White case: Computer image based on her. It wasn’t her image but her character andconcept. She has a property interest in her character.

vi. Property in One’s Person (p 79)a. Moore v. UC Regents (p 79)

Facts: Moore sought treatment for leukemia. Had his spleen removed and many tests done. Had 7years of tests and follow-up procedures he was led to believe were important to treatment.Doctors used his spleen and samples to make cell line worth billions. Moore sued forconversion (possession of someone else’s property as your own), lack of informed consent,breach of dr’s disclosure obligations.

Issue: Does a person own his or her own organs and bodily tissues once removed?Analysis: Found no cause for conversion, just breach of doctor’s disclosure obligations. Conversion must

be an actual interference with P’s ownership or right of possession; only property can beconverted. It is possible that someone else’s cells could have been used. His cells were thestarting point, but at the end point they were no longer unique to him, and Drs put in lots ofwork and skill.Moore has an interest in his cells while in his body but extraction from his body severs hisinterest. Cal Statute limits patient’s control – human tissues should be safely disposed of.Moore had the right to say no to the procedure and can keep his cells in his body. Conversion isa “strict liability” tort, all who use the cells would be liable, including other researchers with noconnection to patient.

Dissent: Property is a bundle of rights: right to use, right to exclude, right to dispose of. These rightsdon’t have to all be present all of the time for you to have property interests. Property rights ofone’s own tissue is fair and prevents unjust enrichment. Majority’s interpretation of statute iswrong. It authorizes transfer of tissue for research purposes and only prohibits sale fortreatment and transplant. The statute treats tissue as property that can be sold and should beprotected by law of conversion. Majority gives patient only the right to refuse and not the rightto grant consent on the condition of sharing proceeds.To win on a nondisclosure action, Patient must show that they would have said no if he hadknown AND no reasonable person would have said yes.

Policy: Want to encourage researchers to come up with medical breakthroughs that help people, andlegislature should decide. Leshy disagrees – if wanted to have legislature decide, should haveruled the other way. Patients don’t have lobbying power like the medical industry


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Rule: Once body parts removed, they no longer belong to the patient but Drs have a duty to getinformed consent to use them. Moore had no property rights over his tissues once they wereremoved from his body.

1. Notes:A) A patent is granted for invented skill. The patent of the process doesn’t mean I own what

created that process or the materials that go into the process.B) Law of accession: What happens when someone comes along and applies his skill and

labor using your materials? Who owns the product? 1) The person who owns thematerials continues to have an interest. 2) How much depends on all the facts andcircumstances. Courts may give owner of materials more than worth of materials, butnowhere near as much as the worth of the product.

b. The right to include and exclude (p 99)1. General rule: Property is a relationship among people that entitles owners to include

(permit) and exclude use or possession of the property by others.A) The right to exclude is fundamental (even when inefficient) except to serve the public

good.2. Jacque v. Steenberg Homes (p 100)

Facts: The best path for a mobile home to be transferred was across the Jacques’ land. Jacquesrefused, Steenberg Homes went across their land anyway.

Issue: Can owner exclude someone from crossing land even if would cause no damage and ismore efficient than going around?

Analysis: US Supreme Court recognizes private landowner’s right to exclude others from his land,one of the most essential sticks in the bundle of rights. Intentional trespass can threatenthe individual’s ownership of the land. Society has interest in punishing trespassersbeyond protecting the interests of the individual landowners.

Policy: This serves the public good. In the long run this is economically rational even thoughinefficient in this case.

Rule: The right to exclude is fundamental (except for serving public good).

A) Privacy interests. In addition to property rights, there is a privacy and liberty interest atstake here. Even though this is an extreme situation, this is the law and you have theright to exclude people.

3. State v. Shack (p 101)Facts: Shack – attorney for farm workers legal rights and Tejeras – nonprofit worker, entered

Tedesco’s property in order to provide medical assistance and legal advice. Tedesco saidthey had to do it in his office. Ds refused and said workers had right to be seen privately.

Issue: Did D trespass by entering and refusing to leave private land in order to offer legal andmedical services to farm-workers housed on that land?

Analysis: Title to real property does not include dominion over people owner permits onto thepremises. Migrant workers are highly disadvantaged, and need services. Necessity mayjustify entry upon lands of another. There is no legitimate need for a right in the farmer todeny workers the opportunity for aid.

Policy: Is this consistent with Jacque? The larger human value served by allowing medical andlegal aid in the Shack case overcomes the right to protect against trespass. This policydistinction isn’t relevant in Jacque. Generally speaking, convenience doesn’t overrideproperty rights.

Rule: Right to exclude is not absolute: does not include dominion over people owner permitsonto the premises (farm-workers).

A) The court doesn’t say this is unconstitutional under 1st amendment - they could have,but they didn’t. If court has a choice between common law and the constitution, courtsavoid the constitutional question when they reasonably can. Ruling on constitutionalmatters is rigid, difficult to reverse and potentially at odds with other branches of gov’t.


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II. Subsequent Possession: Acquisition of Property by Find, Adverse Possession, and GiftA. Acquisition by Find (p107)

i. General Rule: Finder has good title against all but the true owner.ii. Armory v. Delamirie (p 108)

Facts: Chimney sweep finds a jewel and takes it to a goldsmith for appraisal. Goldsmith takes the jewelsout. CS suing for amount jewels were worth (trover).

Issue: Who has rights to the jewel?Analysis: Unless the jeweler produced the jewel, the jury should find the strongest case against him (most

valuable jewel as would fit in the setting).Rule: Finder has good title against all but the true owner.

a. Trover: Sweep sued not for the jewel but the value of the jewel (trover). Replevin is suing forreturn of the actual goods.

b. Bailment is temporary possession for some particular purpose. The owner is the bailor, and theother person is the bailee. It is a pretty elaborate law.1. Traditional rule: Different kinds of bailments had different kinds of standards of care. Finder:

low standard, Cleaners, etc.: high standard of care2. Modern: Mostly just a reasonable duty of care regardless of kind of bailment.3. The law of bailment is traditionally the law of contract because it is usually governed by

some contract, but contract law doesn’t work all the time.c. “Lawful possession”: Anderson v. Gouldberg. Possessor of personal property has superior rights

against all but the true owner, even if he obtained his possession wrongfully. Otherwise, wouldlead to endless series of unlawful seizures once out of true owner’s possession.

d. Notes:1. The sweep is the bailor, and the jeweler is the bailee. In regards to the true owner: the sweep

is the bailee, and the owner is the bailor. This is an implied bailment.2. Sweep gets all the money based on the assumption that he has absolute clear title to all but

the owner. Should the value be discounted the amount of the odds that the true owner willshow up?A) For a long time, law didn’t want to split property: It’s yours or it isn’t.

3. The jeweler is paying the sweep in effect for title, title that is good against all except the trueowner, so then if the true owner does appear, then the jeweler has to give it back.A) The true owner can’t sue the wrongful possessor if the bailee has already recovered

from him. What if the sweep is gone? Law probably would find that the jeweler had topay again. But S/L would apply.

iii. Locus ownera. General Rule:

1. Locus owner doesn’t have title over lost chattels not attached to land but does generally havetitle over items imbedded in the soil.

2. Finder has title over lost property, owner of locus has title over mislaid property.b. What is the right of the lessee?

1. T does have a permissive, possessory right stronger than Peel.2. Terms of the lease may affect ownership3. Elwes v. Brigg – gas company leasing the land found a boat in the land.

A) Could say that the gas company leased all the things that could be mined from the soil,and the boat is like a mineral OR

B) Could say that the gas company leased only the particular minerals in the soil and theboat belongs to the landowner


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iv. Hannah v. Peel (p 111)Facts: Peel has a house that was requisitioned for soldiers. Hannah, a soldier, finds a brooch in the

house. Hannah turned it over to the police to search for owner. No owner was found, Peel claimedfrom police and sold. Hannah demands broach or damages.

Issue: Does the owner of the land on which the finder found the brooch, have better title to the broochthan the finder?

Analysis: The plaintiff, as the finder of the lost article whose true owner was never found, has better titlethan the defendant who was the owner of the premises. P found the brooch, which was lost, andtried to find the real owner, who was never found. P brought D’s attention to the existence of thebrooch. D never occupied the land and was never in possession. Thus, he never possessed thejewel even though he owned the land. There is a law that says you own things attached to yourland, but this is chattel that isn’t attached.

Policy: We want to reward finders, especially honest finders, except against the true owner.Rule: Locus owner doesn’t have title over lost chattels not attached to land. Finder has title (against all

but true owner).

v. McAvoy v. Medina (p 118)Facts: Plaintiff found a pocket book on the counter in defendant’s shop.Issue: Is the finder of a pocketbook left on the counter of a shop entitled to possession as the finder of

lost property?Analysis: A pocket book left on the counter is not lost property. Thus the finder of such property does not

have title because the property was not lost.Policy: A mislaid item has a higher chance of being recovered. We want to encourage items to get back to

their true owners. True owner more likely to come back to the shop to look for it.Rule: Finder has title over lost property, owner of locus has title over mislaid property.

a. Notes: You can still serve the policy by giving the shop owner custody but the finder should get itif true owner is not found, or make arrangement to divide the property between finder & owner.

b. Lost v. mislaid1. Lost: true owner didn’t intentionally or clearly place object somewhere. Title to finder except

as to true owner.2. Mislaid: true owner intentionally places object somewhere and subsequently forgets to pick it

up. Title to locus owner except as to true owner (usually).3. Abandoned: true owner intentionally left it because no longer wanted it. Title to finder

absolutely.c. Objects of the law regarding lost, mislaid, and abandoned property:

1. Get back to true owner. This is first and foremost.2. Encourage people to be honest. The law, where it can be avoided, should not encourage

people to lie and should encourage and reward honesty.3. Minimize litigation: Promote certainty, have clear rules.4. Maximum utilization of property5. Protect (reasonable) expectations of locus owner. Where there is a real property owner in the

mix, you have interests and expectations around that property.A) Protect privacy – don’t want to authorize people to go onto private property looking for

things. Protect right to exclude.6. Where you have these conflicting policies, the law gets muddied. You get a bunch of cases

talking about things that are not coherent.A) Getting back to owner best served by giving to Peel, rewarding honesty, to Hannah.B) Why not penalize the true owner for losing it? You might be licensing people to steal in

ambiguous situations. Finders keepers would still cause litigation over who found first.d. Statutes:

1. CA – finder must notify true owner if known and restore without compensation; if > $100,take to police. If less than $250 and owner doesn’t claim in 90 days, finder keeps it. Morevaluable property may be advertised, and if not claimed, sold at public auction


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vi. Shipwrecksa. Shipwrecks are not considered abandoned property, generally – generally claimed by government

or insurance company. Usually litigation is between private party and insurance company,sometimes between the locus owner and/or govt.1. State owns certain distance out, then US govt, then international law and usually no locus

owner.b. Historians and archeologists are very distrustful of applying the law of finds. The modern

salvagers are, at least public relations-wise, sensitive to this. Say they will excavatearcheologically.

c. Another problem is that finding shipwrecks is expensive. Won’t do it unless there is someincentive. Encouraging these excavations is also part of the picture.1. Government should regulate to protect the archeological interests, interests of finder, true

owner, locus owner. If you do it right, you can serve all of these purposes.vii. Treasure Troves: treasure buried underground for safe keeping with intent to return.

a. Traditionally belonged to the kingb. In US, all hidden $, and treated as other found property.

1. If found in moveable property like an airplane, it is mislaid and belongs to owner of plane.2. If found in ground owner of land3. If found in property but deemed abandoned first finder or his agent/bailee.

viii. Estray – beasts whose owner is unknown.

B. Acquisition by Adverse Possession (p 127)i. General rule: If you 1) actually enter to exclusively hold and possess 2) hostile to the true owner’s

rights (in minority), 3) openly and notoriously, and 4) continuously for length of statute oflimitations, title becomes yours and is assumed to have become yours at point of entry.a. “Actual entry and exclusive possession” means using the property as the true owner would use

it under the circumstances (Howard v. Kunto).b. Hostile (state of mind): must have intent to claim the property of another. Use cannot be

authorized by owner.1. Minority requires hostility.2. Majority uses Objective Standard: If other requirements of AP are met, hostility is implied,

regardless of subjective state of mind.A) If you say that state of mind is irrelevant, then you are treating people with base, thief-

like intentions the same as honest mistakes. This is the moral objection to objectiveview.

B) If you say state of mind counts, litigating these cases is a mess. In the big picture, it’sbetter even if you end up rewarding a few thieves.

3. Claim of right: Good faith claim - thought it was yoursA) You can still be hostile to owner even if in good faithB) Courts more likely to award to person who thought they had a claim of right than person

who knows he’s trespassing.c. Open and Notorious

1. Statute of limitations begins when possession/use is open and notorious2. Owner of property should be put on notice by the use. You have to be able to know that there

is a trespass. It isn’t fair to trigger the clock if you don’t know about it, if there wasn’treason for you to know it.

3. For small encroachments, actual notice to owner is required (Manillo v. Gorski).d. Continuous

1. If owner reasserts right to property, then statute of limitations starts over. This use betterinforms the true owner.

2. Continuous use is how the true owner would use the land under the circumstances.


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e. Statute of limitations1. Western states have shorter statutes of limitation, and usually have an additional requirement

that you must pay real estate taxes to have AP.A) Conventional wisdom is that this came about b/c of RR land. RRs were huge landowners

with no way to effectively police the land.ii. Why AP?

a. OW Holmes: Possessor has come to expect continued use and access, and the true owner has fedthat right by not ejecting.

b. Economic: if you (owner) are not using it, someone else should be allowed to. Property is there tobe used productively. This is for the good of society.2. AP takes time. You have to do it for years. If someone makes productive use of property that

would otherwise lie fallow, law says ok.3. The economic explanation doesn’t depend on the state of mind. There are other reasons for

not looking at state of mind. It is hard to figure out and hard to prove, and it is almostalways something that happened a long time ago.

ii. Earning and Sleepinga. Earning – productive economic efficiency idea. AP earns title by his actions, good works and

socially productive activity. This focuses on actions and intent of the AP.b. Sleeping – looks at true owner. Penalize the true owner for sleeping on their rights.c. Both are valid, but there are some cases that would turn out differently based on which one you

think of as the main reason for AP.d. Squatters’ rights: book says squatters never get rights, but if they are using the land openly and

adversely, there is no reason why they can’t be APs. There is a lay sense of squatters that thereis an understanding btwn owner and squatter.

iii. Van Valkenburg v. Lutz (p 129)Facts: Lutz bought some land near an empty lot. They traveled across the lot, built a small

shack on it, grew vegetables and raised chickens on it. 30 yrs later, Van Valkenburgsbought the empty lot and tried to kick the Lutzs off. In court, Lutz conceded that the lotwas owned by Van Valkenburgs but argued for right to use the travel way and won(easement). Then Lutz brought suit for ownership of the lot through adverse possession.

Issue: Was the whole of the land “usually cultivated or improved” by the Lutzs?Rule: Under NY statute: Adverse possession 1) where it has been protected by a substantial

enclosure, or 2) where it has been usually cultivated or improved for at least 15 years.Analysis: The proof fails to show that the whole of the land was cultivated and improved by the

Lutz’s. The garden was only on a small part of the land, the chicken coops were portableand moved around, and there was junk laying all around. Lutz said he knew at the time itwasn’t his land. A fundamental concept of adverse possession is that the occupation be“under claim of title” that is hostile to the true ownership. In a previous suit, Lutzconceded that the land was owned by the Van Valkenburgs rather than declaring hishostility and asserting his rights as the true owner.

Dissent: Court shouldn’t be making decisions on the facts but looking at the law and whether thetrial court erred

Rule: Intent to claim property or mistakenly possessing property is not enough.

a. Notes:1. Notice to owner: “Protected by substantial enclosure” – court says no, but there were

markers. Purpose of this is to give notice to others so that the world and the true owner thatI am claiming it. When you take steps as an AP that gives the true owner the opportunity tokick you off, the clock starts ticking on the statute of limitations.

2. You can AP part of someone’s property, so why does Lutz get nothing?b. Color of title vs. claim of right/claim of title. Color of title is where you are making an adverse

possession claim but you have something in writing that gives you title.1. Rules for these claims are somewhat more relaxed: shorter statute of limitations, possession

of part of the land is constructive possession of the whole.


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e. Bilateral Monopolies (Marengo – cave problem, p 141)1. Bilateral monopoly: Two parties locked into dealing with each other. This can lead to high

negotiation costs w/ each trying to get the best deal. This isn’t economically efficient.2. Cave is under two people’s properties. Who owns the cave?

A) Ad coleum doctrine is that person who owns land owns what is in the air above andunder the ground.

B) This is a commons problem. They both have an ownership and it is inefficient.C) Could say that person who owns the entrance owns it. That person is the only one who

can use it from their property. There is a single owner, and others don’t haveexpectations of being able to use it. But what if there is more than one entrance? Howabout whoever discovers it? But then licensing trespass.

iii. Manillo v. Gorski (p147)Facts: Gorskis bought a lot adjacent to lot owned by Mannillos. Gorskis made additions to the house,

including raising the house and extending the stairs. These steps and the concrete walk extend 15inches onto Mannillos’ land. Gorski claims title by adverse possession.

Issue: Is a hostile state of mind required? Was possession open and notorious?Analysis: When Gorskis built steps and path over property line, they thought they were on their own land,

but state of mind is irrelevant. Maine doctrine (hostile intention) is rejected. Use must be open andnotorious. The encroachment was so slight that Mannillo may not be expected to know of it eventhough he could see the actual path.If it is open and notorious, Gorski’s should pay reasonable price for the land (modern trend).

Policy: Maine doctrine (hostile intention) rewards the intentional wrongdoer while disfavoring the honest,mistaken entrant. Making owner survey all the time is an undue burden.

Rule: Hostile state of mind requirement rejected. For small encroachments, actual notice to owner isrequired.

a. Notes:1. Earning rationale – Gorskis built the steps2. Sleeping rationale – Mannillo didn’t even know he was sleeping on his rights and reasonably

couldn’t know. This is what the court adopts. Court says there must be actual notice, butprobably would suffice to have “inquiry notice” – you have enough knowledge to put onyou the duty to inquire further.

b. Property rules and liability rules1. Property interest protected by property rule: can’t take from owner without consent. All

transfers are voluntary.2. Property interest protected by liability rule: Interest can be taken without owner’s consent but

only payment of judicially determined damaged: forced transfer.c. Doctrines of agreed boundaries, acquiescence, estoppel

1. If the two parties agree on a boundary but they are mistaken, and there is a long period ofacquiescence (but perhaps shorter than S/L), then neighbors are estopped to deny thevalidity of their statements and actions

d. Mistaken improvers1. Early common law: anything built on the wrong land, even innocently, belonged to the land-

owner.2. Later, forced conveyance of land at market value or give landowner option to buy

improvement.A) If takes up lots of land, may be ordered removed.B) Intentional encroachers often made to remove.C) If innocent encroachment is so small as to be trivial, relief may be denied.


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iv. Howard v. Kunto (p153)Facts: Since at least 1932, the deed to the land occupied by the Kuntos described the lot adjacent to them

rather than the lot they actually occupied. A survey by the previous owners showed that the deed wascorrect. The Howards (occupying land two lots to the east) had a survey of their land in 1959 anddiscovered that they actually owned the land of the Moyer house, and the Moyers owned the land ofthe Kunto house. Howards traded with Moyers the title of their land for the title to the Kunto’s land.Howard brought an action to get legal recognition of their ownership of the title of the land occupiedby the Kuntos.

Issue: Can summer use only of this summer home be considered continuous use as required for adversepossession?Can an AP under color of title use the period of time immediate predecessors occupied to establishhis AP?

Analysis: Summer use only of a summer home is continuous use. This how an ordinary owner of this landwould use this home.A person may tack the adverse use of his predecessor even when none of the occupied land isincluded in the deed. Tacking is permitted if successive occupants are in “privity” (mutuality of legalinterest), and has been used for cases where the owner believed that he owned more land than hisdeed stated. The claim of right of a person who occupies a lot directly adjacent to the lot in his deedis no less persuasive than the person who believes she is purchasing more than her deed describes.

Rule: Continuous use for AP purposes is measured by how an ordinary owner of the land would use itunder the circumstances. Tacking of AP time is permitted if successive occupants are in “privity” ofcontract or blood.

v. Tacking (p 159)a. You can tack on land if there is a piece of it that isn’t in the deed but you think it is.b. You can tack on previous adverse possessor’s time if you are in privity (a legal relationship) like

privity of contract- one bought it from the other; inherited it; got it as a gift.1. Series of trespassers can’t tack.

c. You can also tack on previous true owners if the property was transferred while you were AP.1. Earning rationale: earned it from both owners2. Sleeping: Shouldn’t you go out and look at it before you buy it? First owner slept and so did

the next owner.vi. Disability (p 161)

a. If owner has certain “disabilities” – minor, unsound mind, imprisoned, S/L is extended to certainlength of time after disability is removed. Applies if disability existed when cause of actionaccrued

b. Also has included anyone “claiming from, by, or under” such a personvii. AP against the government (p162)

a. Common law: AP doesn’t run against govt. Also some Constitutional provisions protecting statelands.1. Sovereign immunity. Govt is immune to claims or suit w/o consent.2. State owns in trust for the people.3. Govt owns 1/3 of land, and it is an unfair burden to have them police it all the time. The govt

generally keeps this land for public to use. If govt was open to AP, they would fence it offand keep people out.

iv. Adverse Possession of Chattels (p 163)a. Usually shorter statute of limitationsb. O’Keefe v. Snyder (p 163)

Facts: Georgia O’Keefe found her paintings that had been stolen in the 40s in an art gallery. Galleryowner (Snyder) bought from Frank, who said he got it from his father, who knew Steiglitz.O’Keefe did not report paintings stolen at the time, only much later. Snyder argues that statuteof limitations has run, and has title through adverse possession (tacking possession withFrank’s).

Issue: Is there enough conflict of evidence for suit to be brought by O’Keefe for possession and titleof the paintings?


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Analysis: S/L won’t start until the items are discovered or reasonably discoverable as long as the ownerhas taken reasonable measures to locate the stolen items and notify potential buyers that theyhave been stolen. Transfer of possession by subsequent possessors makes it harder for theowner to find it, and discovery rule still applies. However, once it has begun, S/L doesn’t beginrunning anew if items change hands as long as there is privity between possessors.

Rule: Discovery rule for AP of chattels: in appropriate cases, cause of action will not accrue untilinjured party discovers, or by reasonable diligence and intelligence should have discovered,facts that form the basis of the action.

c. Discovery Rule – in appropriate cases, cause of action will not accrue until injured partydiscovers, or by reasonable diligence and intelligence should have discovered, facts that formthe basis of the action.1. Puts the burden on the true owner. We look to the conduct of the true owner, not the AP, not

how open AP is but how hard true owner tries to find it. In real property, we always look toactions of AP rather than true owner.

2. Clock doesn’t start again if possessor changes and they are in privity. This is to protect thebona fide purchaser.

3. Bona fide purchaser cannot get good title from a thief but can from other scoundrels (boughtwith bad check, etc.) who have a voidable title.

d. Demand Rule: AP clock starts running only after true owner demands return. Only NY has thisrule.

e. Native American Graves Protection and Repatriation Act of 1990 (p 176)1. Federal law trying to get Native American artifacts and burial items to Native Americans.2. Can the museums claim AP? No. Museums have to give it back (complicated issues with

tribes that don’t exist) unless, museum can show right of possession.A) Right of possession is possession obtained with the voluntary consent of the individual

owner or tribe (and museum must show this) unless results in 5th amendment taking ofproperty without compensation.

B) Federal law trumps state law about AP.C. Acquisition by Gift (p 178)

i. General rule: A valid inter vivos gift must include 1) intent, 2) constructive, symbolic or actualdelivery, 3) acceptance. Until delivery has taken place, gift is not complete.a. Delivery

1. Constructive delivery – handing over a key or something that gives access to the subjectmatter of the gift.

2. Symbolic delivery – handing over something symbolic of the property given (a writteninstrument).

3. Purpose of delivery requirement – partly to make donor feel and understand what they aredoing. Also proof that the donor intended to and actually gave the gift.

b. Acceptance is assumed if it would be beneficial to the donee.ii. Inter vivos gift – gift completed while donor is alive. Cannot be revoked after it is completed.iii. Gift causa mortis – gift given in consideration of death. These gifts are automatically revoked and

go back to the donor if the donor survives but cannot otherwise be revoked.a. Gift causa mortis requires stronger proof than inter vivos gift. If the gift is valid, it circumvents

the will. Wills require a lot of formality but gifts don’t. The easier you make it for people toclaim gifts causa mortis, the more you undermine the wills statute.

iv. Newman v. Bost (p 180)Facts: On deathbed, Van Pelt gave Newman keys to bureau, doors in house and told her she could have

everything in the house. Newman kept the keys. Bost, administrator, sold everything and kept it,including life insurance policy in the bureau and fire insurance on the piano Van Pelt had boughtfor Newman. Newman sues for furniture and life insurance policies as gifts causa mortis and forher bedroom property and insurance money on the piano as gifts inter vivos.

Issue: Was there valid delivery of the gifts to Newman from Van Pelt, both of the gifts causa mortis andthe gifts inter vivos?


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Analysis: Gifts causa mortis: There was valid delivery of any article of furniture that could be unlocked bythe keys give to Newman, as these articles could not be manually delivered (constructive deliveryis enough). There was not valid delivery of the life insurance policy because it could have beenmanually delivered and bureaus are not intended or expected to store such things of value.Gifts inter vivos: There was valid delivery of Newman’s bedroom belongings because they werebought for her during Van Pelt’s lifetime for he exclusive use and control. There was not validdelivery of the piano because Van Pelt insured it as his piano.Dicta: no such thing as symbolic delivery for gifts causa mortis.

Rule: Constructive delivery is sufficient where the donor plainly intends to make the gift and the itemsare not present or are incapable of manual delivery because of their size or weight. When itemsare present and capable of manual delivery, manual delivery must be had.

a. Notes:1. If the bureau had been a safe and he gave her the keys, it would have been delivery. A safe is

intended for holding things of value, while bureaus are not designed to hold things of value.2. Court seemed to rule differently on facts found by the jury although appellate court is

supposed to accept the facts found by the jury.v. Gruen v. Gruen (p 187)

Facts: Father (Victor) wrote letter to son (Michael) giving him Klimt painting for his birthday. Fatherwanted to keep possession of painting during his life (keep a life interest). Son never had possession.Father died, stepmother wants to keep it.

Issue: Can a valid inter vivos gift of chattel be made where the owner reserves a life estate and the doneenever has physical possession before donor’s death?

Analysis: There is a distinction between ownership and possession. The correct test is whether the donorintended the gift to have no effect until after the donor’s death (making it a gift causa mortis), orwhether he intended it to transfer some present interest. Once a gift is made it is irrevocable, anddonor is limited to rights of life tenant, and the donee gets the remainder. Under a will, neither titlenor possession vests immediately.When a gift is of value to the donee, acceptance is assumed, but Michael also gave clear andconvincing evidence that he accepted it.

Policy: Requirement of delivery is not rigid or inflexible but must be tailored to suit the circumstances of thecase. Requiring actual delivery in this case would be artificial.

Rule: A valid inter vivos gift of chattel can be made where the owner reserves a life estate and the doneenever has physical possession before donor’s death. Son gets the painting.

System of EstatesIII. Possessory Estates (p 197)

A. Feudalism (p 197-205)i. All land was owned by the king. He gave possession to lords and barons, who had an obligation to

provide certain number of soldiers to the king. Lord could give possession of a parcel to anunderling in exchange for soldiers or other obligation (seisin).

B. Estates (p 195)i. Estates: an interest in land that has two characteristics: it is or may become possessory, and it is

measured in terms of duration.a. Courts interpret ambiguous grants as the largest estate possible (White v. Brown)

ii. Freehold: no ascertainable termination date, includes fee simple, life esate.a. Freeholder has seisin – possession with duty of feudal services. Passing seisin had to include

formal delivery of a piece of the land (clod of dirt, branch) while on the land. (p 238)iii. Nonfreehold: have an ascertainable termination date, includes tenancy for years, periodic tenancy,

tenancy at will, (tenancy at sufferance).a. Leaseholders don’t have seisin. (p 239)

iv. People can’t make up any other kinds of estates.a. To carry out your intent, you have to fit it into the existing pigeonholes. There is too much

instability if property owners have freeform ability to recreate rights.


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C. Fee Simple (p 209)i. Fee simple: Absolute ownership (used to be called fee simple absolute), as far as any property

ownership can be absolute (ownership is almost never absolute).a. Most unrestricted and longest estate. It is permanent and of unlimited duration

ii. How Fee Simple Developed (p 209)a. Heritability – land wasn’t owned by possessor but held by possessor as a tenant so couldn’t go to

heirs. Then heirs paid for it, then it went automatically to heir for continued payment.b. Alienability – later became alienable and always passed to heirs. Tenants could sell with lord’s

permission.iii. Creation of fee simple (p 211) Words used to convey fee simple:

a. Common law: “To A and his heirs” “To A forever”b. Modern trend: “To A.” When language is unclear, courts prefer fee simple estates.

iv. Inheritance of Fee Simple (p 212)a. If a person dies intestate (no will) property goes to heirs. You don’t have heirs until after you die.b. Heirs are children and issue (their children), parents, collaterals (siblings, aunts, nephews,

cousins).1. Now spouse gets a portion.

c. If you don’t have any heirs, it escheats to the state.d. Wills: person who gets your property under your will is your devisee.

D. Life Estate (p 221)i. Lasts for the life of the person. Always followed by a future interest. Person w/ life estate has a life

estate pur autre vie.a. You can sell your life interest.b. Typically measured by the life of the person who holds the estate, but can be measured by

someone else’s life.c. “To A for life,” “To A until he dies,” “To A and at his death to his children”

ii. Waste doctrinea. Duties of LT

1. LT may not waste or unreasonably decrease the value of the property for the person with theremainder interest. Also must pay taxes, make repairs, pay interest on mortgage. Noobligation to insure.

2. Life tenant can’t sell, can only lease during lifetime, can’t get a mortgage for repairs, may notbe able to use the property in many ways because of waste.

b. If a mine was open when donor is alive, it is within his expectation that life estate will mine thecoal, and remainder people can’t stop her. BUT, if a mine is later discovered, life tenant wouldhave to get remainder’s permission.

c. Waste doctrine influenced by the age of the life tenant. Gets more discretion about managing theproperty the longer her life expectancy is. Why? She has more incentive for long termmanagement. The older she gets, the more her interest will differ from the remainder

d. Affirmative and permissive waste (p 235)1. Affirmative waste – injurious, voluntary acts that have more than trivial effects and that

substantially reduce the value of the property.A) Generally speaking, LT can make changes if it doesn’t depreciate the value of the

property.2. Permissive waste – failure to take reasonable care of the property. This is a question of

negligence.e. Adverse Possession of property held in life estate

1. If AP property while owned in fee simple that is split into life estate and remainder duringS/L, AP was possessing against FS owner.A) Remainderman has an ownership interest that has been snatched away by AP. R loses

property by LT’s inaction.B) R can sue LT for waste.


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2. If you enter against a life estate owner, and statute runs, AP gets life estate for original lifeestate owner’s life. If LT dies before statute of limitations runs, clock begins again at LT’sdeath.

iii. White v. Brown (p 221)Facts: Lide left her house to sister-in-law (White) in a handwritten will for White to live in and not sell.

Lide left personal property to niece Sandra (White’s daughter). White alleges she was vested with afee simple title.

Issue: Did Lide leave a life estate to White or fee simple title?Analysis: If the expression of the will is doubtful, the doubt is resolved in favor of an absolute estate. Lide did

not provide a person who would inherit the remainder of the property after White’s life estate. Thereis not enough evidence of intent to pass life estate to overcome the law’s strong presumption againstit. Court will discard provision that property will not be sold because the law resists absoluterestraints on alienation.

Dissent: The limitation that the house was “not to be sold” indicates that Lide intend to give a life estate. Youcan’t just strike this part of the will.

Rule: Court interprets ambiguous grants to mean the largest estate possible.

a. Notes:1. If White had a life estate, heirs would have remainder (in fact, vested remainder). White

wouldn’t be able to leave house to her heirs when she dies because she only has a life estate.2. But, since Jessie didn’t provide a person to get the remainder, she probably didn’t intend a

life estate. If she had said “and then go back to my heirs,” or “to this other personafterwards,” this would imply an intent for a life estate.

3. Court interprets ambiguous grants to mean the largest estate possible. Why? Makes theeconomy more efficient because people will use larger estates to a greater extent.

b. Law is hostile to absolute disabling restraints on alienability1. Why? We want property to be flexible and used in the highest and best way possible.2. Anything that does not restrict sale absolutely is ok (not be sold to corporation; for 5 years; to

Evelyn as long as she doesn’t sell it, then back to my heirs). This is a forfeiture restraint,which is allowed (p 228).

3. Promissory restraint – you get it if you promise not to transfer it, and your promise isenforceable under contract remedies.

c. Valuation of Life Estate and Remainder (p 229)1. Use life expectancy tables, figure out how much per year of the interest goes to the life

tenant, multiply by years of life expectancy.2. Remainder is value at end of life tenancy minus life estate value.

iv. Baker v. Weedon (p 230)Facts: Weedon had 3 grandchildren from a previous marriage. He left his farm as life estate to his

current wife (Anna), then to her children upon her death, or to his grandchildren if Anna had nochildren. Anna has no kids, so Weedon’s grandchildren are the remaindermen. Previously theyworked out selling to govt an easement for a highway. Anna doesn’t have enough money to liveon and wants to sell most of the farm, invest the proceeds, and live off of the interest.

Issue: Would sale of the land and investment of the proceeds be in the best interests of both the lifetenant (Anna) and the remaindermen (three grandchildren)?

Analysis: Grandchildren don’t want to sell it because in 4 years, it will be worth a lot more. Sale of the landisn’t in the best interest of all parties – it would result in great financial loss to the remaindermen.Perhaps part of the land can be sold now, but only if all parties can agree.

Rule: Deterioration and waste of the property is not the exclusive and ultimate test to be used indeciding whether to sell land affected by a future interest, but also whether a sale is necessary forthe best interests of all parties.

a. Notes:1. Bad decision. Grandchildren have no sentimental attachment, just greedy.


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E. Defeasible Estates (p 240)i. General rule: A holder of a fee simple defeasible is subject to a divestment, but may still hold, use,

and convey forever as long as the condition is met.a. Always followed by a future interest.b. In FSD and FSSCS, grantor has a reversion (future interest)

1. Traditional: you can’t transfer reversion by will or inter vivos transfer. A reversion isn’tactual property. A reversion can only pass by inheritance.

2. Modern: most states allow inter vivos transferii. 3 types: Fee simple determinable, fee simple subject to a condition subsequent, fee simple subject to

executory limitation.a. Fee simple determinable (FSD)

1. Fee simple that is divested automatically when a particular event happens.2. Grantor gets a possibility of reverter: the grantor keeps an interest that vests automatically

when the event happens.A) Transferee (who gets the future interest) has an executory interest. Transferee can be

named or can be by operation of law (grantor or his heirs).3. Words used to create:

A) “So long as,” “until,” “during,” “while,” “revert to grantor”4. Purpose is to prevent property from being put to a certain use, or ensure that it is only used

for a particular purpose.5. S/L for AP starts to run from the time of creation, usually very long or there is no limit.

A) Laches bars relief when the grantor’s delay causes injury or disadvantage.b. Fee simple subject to a condition subsequent (FSSCS)

1. Doesn’t automatically end when the event happens but may be divested at the grantor’selection when the event happens.

2. Courts prefer FSSCS and will construe ambiguous language to mean FSSCS. Court presumeslargest possible estate for the grantee. Law doesn’t like automatic forfeiture.A) CA: there is no FSD. If you use words to pass this fee, you are passing FSSCS.

3. Grantor gets right of entry (power of termination) – the future interest retained by thetransferor to divest a FSSCS when the event happens.

4. Words used to create:A) Must indicate that 1) the grant is subject to a condition: “provided that,” “however,” “on

the condition that” AND 2) the grantor may reenter the property and terminate theestate.

5. S/L for AP starts to run when the condition happens and is usually short.c. Fee simple subject to executory limitations (p 285)

1. Estate passes to a third party instead of the grantor.2. Example: To A, but if property used for x, then to B.3. Can use same language as FSD and FSSCS, but shifts interest to a third party.

iii. Marenholz v. County Board of School Trustees (p 242)Facts: Huttons gave piece of land to School Board “to be used for school purposes only.” They transferred

the whole land and the interest in the school land to Jacqmains, who later transferred both toMahrenholzes. After Hutton’s death, their only heir, Henry, released any possibility of reverter orright of entry to school board, and also gave all interest in school land to Mahrenholzes. Schoolstarted storing stuff on the land instead of holding classes.

Issue: 1) Could Mahrenholzes have acquired any interest in the school land from Jacqmain?2) Did the language of the deed give FSSCS or FSD?

Analysis: 1) You can’t transfer reversion by will or inter vivos gift but only by inheritance. Reversion isn’tactually property.2) If the language of the deed gave FSD, Henry would have become owner of the propertyautomatically when condition was broken. He would then be able to transfer all interest in the land tothe Mahrenholzes. If it gave FSSCS, Henry could become owner of the property only if he renteredthe property. He would be unable to transfer ownership to the Mahrenholzes.Here it was a fee simple determinable.


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Rule: The phrase “to be used for …only” indicates the granting of fee simple determinable followed by apossibility of reverter, which automatically gives ownership to grantor or his heirs when condition isbroken. Grantor or heirs can only transfer ownership to a third party after property has reverted tothem if FSD, or if FSSCS, only after reentry.

a. Note: To quitclaim is to give whatever you have. You are not saying what you have. It is aconveyance of whatever, if any, you have. This is kind of what Henry did in transfer toMahrenholzes.

iv. Palm Springs v Living Desert Reserve (p 265)Facts: Deed land to city as long as used as a reserve. If not, then to Living Desert Reserve. City wanted to

make a golf course, so brought an action for condemnation (government taking land for fair marketvalue). In a condemnation, party with right of reentry doesn’t get anything, only the party holdingthe FSSCS gets paid, in this case, the govt itself.

Analysis: City is trying to get around the condition in the FSSCS. The action to build the golf course(and not use it as a reserve) is imminent, so city has violated the condition and LivingDesert has a right to reenter.

v. Defeasible Life Estates & the Marriage issuea. Leave to my wife until she marries again.b. This is using property to control behavior (law even more hostile to this invasion of privacy).

Mahrenholz is about controlling how property is used.c. The marriage restrictions tend not to be enforced. Courts will enforce it if H’s intent was to

support her while unmarried, but if H intended the restriction to keep her from getting marriedagain, courts don’t enforce.

IV. Future Interests (p 269)A. Future interests

i. Not mere expectancies but presently existing property interests.ii. Future interests do not entitle the holder to possession but may become possessory in the future

B. Future Interests in the Transferor (p 270)i. Reversion – the right to future possession by the transferor

a. Interest left over for the owner when he carves out a lesser estate without specifying a third partyremainderman. Reversion to transferor if no on is specified to get the estate after the prior estateends.

b. Ex: O conveys blackacre “to A for life.” O has a reversion.c. If it does not become possessory, it is divested.

1. To A for life then to B and his heirs if B survives AA) If B out lives A, reversion becomes divested from the grantor.B) If A outlives B, reversion will become possessory in the grantor.

d. At common law, reversions are transferable by will, inheritance, and inter vivos transfer.ii. Possibility of Reverter – The transferor’s interest following a fee simple determinable.

a. Automatically vests when specified event happensb. Inheritable, but under common law not transferable by will or inter vivos (although modern trend

is to allow).iii. Right of Entry – The transferor’s interest following a fee simple subject to a condition subsequent.

a. Transferor must reenter after event happens to vest. When transferor reenters, he terminates thefee simple.

C. Future Interests in Transferees (p 272)i. Remainders – future interest in a transferee which can become possessory only upon the expiration of

a prior possessory interest created by the same instrument. Remainders never follow fee simple.a. Vested remainder – remainder not subject to a condition precedent that is given to a third person

who is expressly determined.1. Indefeasibly vested remainder – certain to become possessory by transferee or his heirs.

A) Ex: To A for life, then to B.


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2. Vested remainder subject to partial divestment (subject to open) – there are parties whoseinterest is certain to become possessory, but there may be other parties not yet ascertainedwho will share the interest.A) Ex: To A for life, remainder to B’s children and their heirs. If B already has one or more

children and may have more, the existing children have a vested remainder subject topartial divestment.

3. Vested remainder subject to divestment (subject to complete disfeasance) – vestedremainder subject to a condition subsequent. Although transferee’s interest will becomepossessory if prior estate ended today, there is a possibility his interest will never becomepossessory.A) May expire: To A for life, then to B for life. While A and B are alive, B has vested

remainder subject to divestment b/c he may die before his interest become possessory.B) May be divested by

I) Executory interest: To A for life, then to B and his heirs, but if B dies without issue,then to C. If B died without issue, his interest, although vested now, will becompletely divested and go to C.

II) Right of entry: To A for life, then to B and his heirs, so long as always used for achurch. (transferor can reenter if condition subsequent occurs)

III) Power of appointment: To A for life, remainder to A as A appoints, but if A doesnot appoint any, then to B and his heirs.

C) To distinguish from contingent remainders: If condition is contained within the grantingclause, it is a condition precedent and therefore a conditional remainder (“but if…thento”). If the granting clause stands alone and a subsequent clause takes it away, theremainder is vested (“…,then if…”).I) If unclear, vested remainder is preferred.

4. Transferable by inheritance, will, inter vivos.5. If first future interest is a vested remainder in fee simple, the second future interest in a

transferee will be a divesting executory interest.b. Contingent remainder – remainder not yet vested because 1) given to a third party not yet

ascertainable OR 2) made contingent on some event other than the natural termination of theprior estate (subject to a condition precedent).1. Transferee not yet ascertainable – either because not born or will be determined by future

events (for instance, heirs of a living person).A) Ex: To A for life, then to A’s eldest son.

2. Subject to a condition precedent – a condition that must be met before remainder becomesvested. (Condition subsequent – condition that ends the interest)A) Ex: To A for life, then to B and B’s heirs if B survives A.

3. Alternative contingent remainders - One party subject to condition precedent, and the otherto the opposite condition precedent.A) To A for life, then to B and her heirs if B survives A, and if B doesn’t survive A, then to

C and her heirs.4. Destroyed if doesn’t vest by the end of the previous estate.

A) Can become vested5. Subject to RAP.6. Not transferable under common law, but transferable by inheritance, will in all JX now and

by inter vivos transfer in most JX.7. If first future interest is a contingent remainder in fee simple, the second future interest in a

transferee will also be a contingent remainder.c. Courts prefer vested remainder and condition subsequent over contingent remainder and

condition precedent. Court will construe ambiguous language as the former.ii. Executory Interests – Future interest in a transferee that cuts short (divests) a prior interest: either 1)

another transferee’s interest (shifting executory interest) or 2) the transferor’s interest (springingexecutory interest)


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a. Fee simple subject to an executory limitation. (p 284)1. If fee simple determinable is followed by an interest in a third party rather than a grantor, it is

a fee simple subject to an executory limitation. The executory interest doesn’t, in this case,cut short the prior estate.

b. Executory interests are treated as contingent interests because they are subject to a conditionprecedent and do not vest until they become possessory.

c. Ex: “To A for life, then to B and her heirs, but if A is survived at his death by any children, thento such surviving children and their heirs.” A is alive and has two children, C and D.1. B has vested remainder in fee simple subject to divestment by the executory interest in C and

D if C and D outlive A.D. Rule Against Perpetuities (pp 302-306, 326-35)

i. Common Law Rule (p 302)a. No interest is good unless it must vest, if at all, not later than 21 years after some life in being

(validating life).1. Ex: to D for life, then to her first child that reaches 21. D is the life in being.

b. Applies to contingent remainders (subject to a condition precedent) and executory interests. Doesnot apply to vested remainders, reversionary interests

c. Wanted to limit the control of the dead hand.1. Often just passed through strawmen to get around it.2. Doesn’t apply when possessory estate and future interest is in charitable organizations.3. It is a classic “rule” rather than a standard. It doesn’t discourage wealth being controlled for a

long time, just gives money to lawyers who could figure out a way around it.4. Tax laws provide the incentive and means to limit long term control of dead hand. The more

control you exercised, the more it was taxed. This has overshadowed RAP.ii. Wait-and-See Doctrine (p 326) – many JX stopped using RAP or modified.

a. Wait-and-See for Common Law Perpetuities Period1. Contingent interest is valid if it actually vests within the common law period.

b. Wait-and-See for 90 years: Uniform Statutory Rule Against Perpetuities (USRAP)1. Wait and see if it vests for 90 years after interest is created.

E. Trusts (pp 287-293, 335-338)i. Trusts – trusts combined legal interests (law ct – rigid rules) and beneficial interests (equity ct –

questions of justice)a. Trustee - Person who is bound by law to carry out the trust in the interest of the beneficiaries.

Trustee is the “legal owner” and has duties spelled out in the trust instrument.1. Held to high standard of care.2. Trustee can respond to changing circumstances without having to go to court for permission.

b. Beneficiary – the “equitable owner” and has superior rights. Holds “equitable interests” or“interests enforceable in equity”

c. Ex: O conveys “to X in trust to pay income to A for life, then principal to A’s children whosurvive A.”1. A has an equitable life estate.2. A’s children have an equitable contingent remainder.3. O has an equitable reversion and gets property back if none of A’s children survive A

ii. Swanson v. Swanson (p 288)Facts: Swanson died testate. He created two trusts in which his wife, Gertrude, had a life estate with the

remainder for their nine children. One of the children, died childless and left all his property to hiswife, Peggy (P) in his will.Trust 1: allows Gertrude to designate other beneficiaries of the trust, and if not, it passes to ninechildren, divided equally. If any child dies, their share goes to his/her surviving children.Trust 2:Remaining assets divided equally into 9 shares, one to each child or for the then survivingissue of each deceased child.

Issue: Was Bennie’s interest in his father’s trust a vested remainder, thereby passing to his wife after hisdeath under his will?


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Analysis: Trust 1: There are immediately identifiable persons who would take if the life estate ended = vestedremainder interest. There are two conditions subsequent that could bring about total defeasance butneither happened, so Bennie’s interest is fully vested.Trust 2: Immediately identifiable beneficiaries if the life estate ended. Court takes “surviving”children to be a condition subsequent rather than a condition precedent because of law’s strongpreference. A child dying before Gertrude but leaving children who survived could bring totaldefeasance of the vested remainder, but this didn’t happen.Bennie’s one ninth interest passes to his wife under his will because 1) his remainder was vested, 2)no condition subsequent occurred before life estate ended, 3) no language in will plainly showsdifferent intent.

Rule: If a beneficiary of a trust dies before the end of a life estate, his remainder can pass to a persondesignated under his will if his remainder was vested, and no condition subsequent that could bringabout defeasance occurred before the end of the life estate.

a. Notes:1. Gertrude had a life estate and was a trustee.2. Law has a preference to construe language of “surviving” to mean surviving the testator3. Law has preference for condition subsequent rather than condition precedent because wants

the contingency to be destroyed and the interest to vest as soon as possible.iii. Dynasty Trusts (pp 335-338)

a. Dynasty trusts –1. At first, successive life estates could endure for as long as RAP allowed tax-free because no

estate tax levied at end of life estate.2. Now, “generation-skipping transfer tax” due at end of life estate if passes to next generation

and levied at highest rate.A) But, amt up to $1 million ($2 mil for married couples) is exempt. So, can create $ 1

million trusts and successive life estates tax free: tax-exempt dynasty trust.V. Concurrent Estates – Common Law Co-ownership (p 339)

A. Concurrent estates – two or more people have present possessory and undivided interests in the wholeof the same property: Tenancy in common, joint tenancy, tenancy by the entirety.i. Tenancy in common

a. Separate but undivided interests in whole of the property.1. Interests may be unequal2. May be conveyed separately by deed or will and at different times.3. Each must have a right to possession of the whole.

b. No right of survivorshipii. Joint tenancy

a. Together are regarded as a single owner. Each, in theory, owns the undivided whole of theproperty.

b. Four “unities” must be present1. Time: each must acquire interest at the same time2. Title: must acquire title by the same instrument or by joint AP

A) Never can arise from inheritance w/o will or other act of law3. Interest: must have equal undivided shares and identical interests measured by duration.4. Possession: each must have a right to possess the whole.

A) One can voluntarily give exclusive possession to others.B) Also required for TIC.

c. Right of survivorship – cannot be passed by will or inheritance.1. Survivorship is automatic and not something you can change with your will.2. Survivorship extinguishes the decedent’s interest rather than passing his interest to the

survivor. Therefore, no probate.3. Federally taxed according to portion of property due to decedent’s consideration. State taxes

usu based on JT’s share.


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d. Any transfer of interest destroys the joint tenancy and can be so destroyed without the consent ofall JTs.1. If one JT transfers interest to a third party, that party becomes a tenant in common with

respect to the other tenants, but if there are two or more other Ts, they are still joint tenantswith respect to each other.

2. If one JT conveys to another JT, joint tenancy is severed only for the share conveyed, not forany of the other shares.

e. In some JX, there must be an express provision of survivorship in order for JT to be created1. Law presumes tenancy in common absent clear contrary indication2. Some JX have no JT.

iii. Tenancy by the entirety (p 341)a. Can be created only by husband and wife (HI allows others).

1. Divorce terminates TE.2. Allowed only in ~ half the states.

b. Like JT (requires 4 unities) but also requires marriage.1. Unlike JT, can only be conveyed to a third party jointly and with consent of both.

c. Right to survivorship1. No probate, marital deduction on estate taxes.

d. Considered to hold as one person under the lawe. Common law presumes tenancy by the entirety in conveyances to H & W.

iv. Avoidance of probate (p 343)a. Probate – judicial supervision of decedent’s property

1. Probate is costly and time consuming.2. Creditor can seize JT’s property during lifetime, severing JT and creating TIC, but if waits

until after death, there is no interest to seize.b. Survivorship avoids probate b/c decedent’s interest is terminated.

v. Riddle v. Harmon (p 345)Facts: Mr. & Mrs. Riddle owned property in joint tenancy. Before her death, Mrs. Riddle conveyed her

interest in joint tenancy to herself in order to terminate the joint tenancy and create a tenancy incommon, so she could transfer her interest by her will.

Issue: Can a joint tenant unilaterally terminate JT by conveying her interest to herself?Analysis: Mrs. Riddle clearly intended to terminate the tenancy. It is artificial to require a joint tenant to

convey interest to a third party (strawman) who will convey it back to the joint tenant in order toterminate joint tenancy. CA statute already allows JT to be created w/o strawman. Owner canconvey to self and another in JT w/o strawman, so why not be able to destroy?

Rule: One tenant may unilaterally sever the joint tenancy without the use of an intermediary device(strawman).

a. Notes:1. CA statute can be interpreted either way:

A) For Mrs. Riddle – if you can create a JT w/o strawman, why can’t you destroy it. Seemslike policy is no different. If legislature thought it was different, could have explained.

B) Against Mrs. Riddle – if legislature intended statute to apply to destroying JT, wouldhave said it did.

vi. Joint Bank Accounts (p 356)a. Bank accounts are different. They are “joint” for the purposes of the bank, not for survivorship

under the law.b. Depends on intent

1. True joint tenancy – one half to each during life, survivorship at death of one.2. Payable on death – no rights during life but survivorship upon death of the donor3. Convenience – just for bills as needed during life.


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B. Relations among Concurrent Ownersi. Each tenant is entitled to possession of the whole, so often come into conflict

a. Communal ownership encourages inefficient use – Posnerb. Rules governing co-ownership should equally distribute benefits and burdens.

ii. Partition (p 359)a. Partition action can be brought if can’t agree in TIC and JT, not tenancy by the entirety.

1. Partition in kind – physical division of property.2. Partition by sale – property sold and proceeds divided.

b. Delfino v. Vealencis (p 359)Facts: Delfinos (P) and Vealencis (D) are tenants in common. D lives on and operates business

on one acre and has ~30%, undivided interest. Delfinos want a partition by sale becausethe land can be made into a subdivision and is very valuable. Helen wants a partition inkind (physically divided).

Issue: Would a partition in kind create “material injury” to parties?Analysis: Partition by sale only when:

1) physical attributes of land are such that physical partition is impracticable: Here, theland only needs to be divided into two parts.2) the interests of the parties would be better promoted by partition by sale: Here, Helen’sbusiness is her livelihood. The city would probably approve the subdivision plan even ifHelen kept her plot and continued her business. The possible decline in market value dueto Helen’s business and the fact that a road would need to be rerouted is not enough toovercome Helen’s interests. The interests of all parties must be considered.

Rule: For property owned by tenants in common, courts favor a partition in kind (physicalpartition) over a partition by sale, and the decision is made in best interest of all theparties.

1. Notes:A) Now, the tendency is to sell and divide proceedsB) Courts don’t generally take into consideration the advantage of one co-tenant acquiring

the part of the property that may be next to other property owned by that party.iii. Sharing the Benefits and Burdens of Co-ownership (p 369)

a. Concurrent owners can enter into K governing use and maintenance, but absent agreement,property rules apply: (p 379)1. Cotenant paying taxes, maintenance, improvements may seek to recover some or all of costs

through partition action, action for accounting, action for contribution.A) Accounting: equitable proceeding for division of costs and proceeds.

2. Rents and profits – Cotenant collecting rent must account to all other cotenants. This is basedon receipts, and not fair market value (absent ouster).

3. Taxes, mortgage payments – Cotenant paying more than share generally has a right tocontribution from other cotenants.A) CoT paying more can also get credit in accounting and partition actions.

4. Repairs – No affirmative right to contribution. How much should be spent on repairs is toouncertain.A) May deduct cost of repairs from rent in accounting proceeding.B) When possession is shared, a number of JX allow direct action for contribution.

5. Improvements – No right to contributions and no credit in accounting and partition actions.A) Improver’s interest should be protected if won’t diminish other interests: can get the

portion of the property improved in partition in kind if fair division, OR can get amountimprovement increased value in partition by sale (owelty).

B) These remedies only look at value of improvements, not cost.


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b. Spiller v. Mackereth (p 369)Facts: Spiller (D) and Mackereth (P) owned building as TIC. After lessee left, Spiller started using it

as a warehouse. Mackereth wrote letter demanding either half rent or to vacate half thebuilding. Spiller didn’t do either. Spiller also put new locks on the doors.

Issue: Is Spiller liable to the other co-tenant for rent on building they own in common that he has fullpossessory use of?

Analysis: Adverse possession requires finding that possessing cotenant asserted complete ownership.Spiller acknowledged cotenancy relationship by filing bill for partition, precluding AP.Normally, occupying cotenant is liable to other cotenants for rent when occupier refusesdemand of other cotenants to use and enjoy the land. There can be no denial of right to enterunless there is a demand or attempt to enter. Mackereth’s letter did not demand equal use andenjoyment of the premises and rather demanded Spiller to vacate or pay rent. Further, there isno evidence Spiller’s locks were intended to prevent other cotenants from entering or that othercotenants asked for a key.

Rule: An occupying cotenant is not liable to other cotenants for rent unless he has 1) agreed to payrent, 2) begun the statute of limitations for AP, OR 3) the other cotenants have attempted toenter and use the property and he has refused them (ouster).

1. Notes: If Mackereth had tried to use the property or had asked for the keys and Spiller hadrefused, this would have been ouster.

c. An occupying cotenant is not liable to other cotenants for rent unless he has:1. Agreed to pay rent,2. Begun the statute of limitations for AP, OR3. Other co-T have attempted to enter and use the property and he has refused them (ouster).

A) Some JX require rent even in absence of ouster but majority doesn’t.I) Majority rule encourages better use of property. Not having to pay rent provides an

incentive to use it. Under minority rule you can’t agree, it may go unused.II) Cost of majority rule is litigation over what constitutes ouster.

B) May be stronger case for compensation in residential property, esp. if inherited.b. Fiduciary duties – generally, cotenants are not fiduciaries w/ respect to each other, but cts treat

them as such in certain situations.1. May be familial relationship of trust that requires them to act as fiduciaries2. If one cotenant asserts superior rights, that T is compelled to act in benefit of all cotenants

d. Swartzbaugh v. Sampson (p 373)Facts: Mr. Swartzbaugh (D) leased 4 acres of land to Sampson (D). The land was part of land owned

jointly by Mr. & Mrs. Swartzbaugh. Mrs. Swartzbaugh (P) did not consent to the lease, and shesued to cancel lease. Sampson is in exclusive possession of the leased land.

Issue: Can one joint tenant who has not joined in the lease executed by her cotenant maintain andaction to cancel the lease?

Analysis: The joint tenant out of possession can’t maintain any action against lessee that she could notmaintain against the other joint tenant. Each joint tenant has a right to possession of the wholeof the land, so Mrs. S cannot cancel the lease to Sampson. In general, lessees cannot assert APagainst lessors.

Rule: A joint tenant can lease property to another without the consent of the other joint tenant, butthat JT can lease no more than his undivided interest.

1. Notes:A) Sampson has no more rights to land than Mr. S, so Sampson couldn’t keep Mrs. S off

the land if she wanted to be on it. She still has possessory rights to the whole of theproperty.

B) Mrs. S could have brought a partition action, possibly just for the 4 acres leased toSampson. If she brings a partition against Sampson, then she is only partitioning theleasehold, and the underlying fee ownership would stay with Swartzbaughs.

C) Mrs. S could have also sued for accounting or claim an ouster.D) When Mr. S died and Mrs. S assumed his interest, the lease continues w/ her as lessor.


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VI. Marital Interests (p 382)A. Common Law Marital Property System (p 383)

i. During Marriage (Fiction that H & W are one)a. Traditional common law: W under H’s protection, and owned nothing but clothes and ornamentsb. Modern: Married Women’s Property Acts gave W autonomy over property, protected her

property from H’s creditors.1. But still expected that H protects and supports, W has domestic responsibilities

ii. Termination of Marriage by Divorce (p 399)a. Traditional common law divorce:

1. Property of spouses remains property of spouse w/ title.2. Tenancy by the entirety becomes TIC3. H owes W alimony b/c he owes her a duty of support, although may be denied if she is at

fault4. No recognition of shared assets.

b. Then, changes beginning in 1970 – CA got rid of fault divorce, other states followed1. “Equitable division” of property at ct’s discretion – many statutes authorize all property to be

divided equitably, regardless of time and manner of acquisition, others allow only maritalproperty to be divided.A) Some states require equal division, some have presumption of equal division.

2. Marital property can be: 1) all property acquired during marriage, or 2) property acquiredthrough earnings of either spouse during marriage (like community property)

3. Lifelong obligation to pay alimony discarded – now support for limited time until spouse canbe self-sufficient, dependent on other’s ability to pay.

c. ALI: Principals of the Law of Family Dissolution1. Middle ground: equitable distribution w/ presumption of equal distribution subject

exceptions.2. Compensatory payment for specific reasons rather than need or ability to pay.

d. In Re Marriage of Graham (p 401)Facts: During 6-year marriage, wife supported husband while he got his BA and MBA. She

contributed 70% of income while he was in school. There are no marital assets. She is arguingthat business degree is a marital asset she is entitled to a share of.

Issue: Is an MBA marital property that is subject to division by the court in a marriage dissolutionproceeding?

Analysis: Education is not “property” under the Act, although it is factor to be considered in equitableproperty division or alimony (but here, no other property to divide). Education can’t be sold,transferred, conveyed, or pledged. It has no open market value. It is personal to the holder andnot inheritable. It is a recognition of an achievement. Other JX have not found education to bemarital property.

Rule: Education is not marital property and cannot be divided, although can be a factor indetermining alimony or equitable division of marital assets.

1. Notes:A) Uniform Marriage Dissolution Act: Marital property is all property obtained during

marriage except by gift, inheritance, bequest or anything in exchange for prior property,property acquired after legal separation, property excluded by valid agreement.

B) Ct says educational degree isn’t property b/c can’t be transferred, etc., but there is otherproperty that can’t be transferred (eagle feathers). Property is a bundle of rights, not allof which need to exist.

C) Wife can’t get alimony b/c she can support herself.D) She may have been able to be reimbursed, but this doesn’t necessarily come close to

what she would have gotten from her investment.2. Professional goodwill (person’s reputation in the community) is a marital asset even in JX

that don’t consider professional degree and enhanced earning capacity as marital asset.


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e. Elkus v. Elkus (p 408)Facts: Mrs. Elkus is an opera singer whose career took off during the marriage, although she was

already somewhat successful at time of marriage. Husband coached her and took care of kids,allegedly sacrificing his own singing and teaching career.

Issue: Is the increase in Mrs. Elkus’s celebrity and career during the marriage marital property?Analysis: Things acquired during marriage are marital property even though they may fall outside the

scope of traditional property concepts. The purpose is to prevent inequities – marriage is aneconomic partnership to which both parties contribute, as spouse, parent, wage earner, orhomemaker. It is the nature and extent of the contributions by the spouse seeking equitabledistribution, rather than the nature of the career that should determine if it is marital property.Husband is entitled to share of the increase attributable to his efforts and contributions.

Rule: Elkus/O’Brian (NY) rule: Future income is property, and the supporting spouse has contributedjust like a business. Takes into account intangible contributions.

1. Notes:A) The NY statute was different from statute in Graham: “including joint efforts or

expenditures and contributions and services as a spouse, parent, wage earner andhomemaker, and to the career or career potential of the other spouse.”

B) Court is broadly interpreting the statute as a whole to be fair in dividing up all things ofvalue, which is a somewhat unconventional way of reading a statute.

2. Double counting earning potential – if spouse gets some of future earning potential, whathappens when the next marriage that ends in divorce?

3. Prenuptial agreements used to be illegal, although most allow now. It was felt that if thelaw enforces prenuptial agreements, the law is encouraging divorce.

iii. Termination of Marriage by Death of One Spouse (p 416)a. Dower – automatic gift to W from H at marriage of 1/3 of all land seised during marriage and

inheritable by their issue. Attaches at moment of marriage but doesn’t become possessory untilH’s death. Considered a “support share.”

b. Curtesy – Widower entitled to life estate in all W’s property when she dies. This interest attacheswhen they have children.

c. Modern elective share – surviving spouse has elective share in all deceased spouse’s property,real and personal. Surviving spouse can renounce will and take share.1. Replaced dower and curtesy in most common law states. Dower states allow choice.2. But, property can be gifted away before death.3. Only applies to probate property, and not to property owned as joint tenants or life insurance.

B. Community Property System (p 419)i. General Rule: earnings of each spouse during marriage are owned equally in undivided shares.

a. 8 states have had community property for a long time (including CA), plus WI recently, and AKhas elective community property.

b. Basic assumption that H & W contribute equally to the success of the marriage.c. All non community property is separate property and strong presumption that all property is

community property.1. Inheritance, gift are separate.

d. Upon divorce, some states divide equally, others allow equitable distribution.e. Upon death, no survivorship, although half usu goes to spouse if no will.f. Some states allow community property with survivorship.

ii. Community Property compared with Concurrent Interestsa. Community property states don’t recognize dower, curtesy or tenancy by the entirety.b. Neither spouse, acting alone, can convey interest in community property w/o consent of other

except if conveying to the other spouse.c. No right of partitiond. Tax benefit – after death of one, property has “stepped up” tax basis. Surviving spouse only pays

taxes on difference btwn purchase price and worth at death.


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iii. Management of Community Propertya. Community property can only be conveyed to third party as an undivided whole.b. Usu, either H or W acting alone has management rights (before just H).

1. Manager is a sort of fiduciary and must act in good faith, although not necessarily goodjudgment.

iv. Mixing Community Property with Separate Propertya. When property is acquired before marriage but part of purchase price paid after marriage with

community funds1. Some JX: “inception of right” rule – when acquired2. Some JX: “time of vesting” rule – when paid off3. Some JX (CA): pro rata apportionment – community property payments “buy in” a pro rata

portion.v. Migrating Couples

a. Character of property depends on the state in which it was acquired. Once property ischaracterized, doesn’t change when couple moves unless both consent.1. Property bought with $ earned during marriage takes on character of the earnings.

b. At death of a spouse, law of his/her domicile at death governs.c. CA: property from a common law state is “quasi community property”

C. Rights of Domestic Partners (p 426)i. Common law marriage – cohabitating partners that manifest intent to be H& W and hold themselves

out as H&W.a. Now only in 11 states.b. Contract law brought in when they don’t hold themselves out as H&W.

1. In some JX, contract may be implied by conduct, in most, contract must be express.2. Marvin v. Marvin (p427), allowing implied contracts.

ii. ALI & domestic partnership: Legal rights arise from conduct with respect to each other.a. Same- or opposite-sex couple sharing for significant time primary residence and life together as a

couple. But no inheritance rights.iii. Baker v. State (p 428)

Facts: Three same-sex couples sued state & city for denial of right to benefits given to married couples.Issue: May the state of VT exclude same-sex couples from the benefits and protections that its laws provide

to opposite-sex married couples?Analysis: When a statute is challenged under Equal Benefits clause of VT Constitution, must 1) define “part of

community” disadvantaged, here the law excludes same-sex couples, and 2) government’s purposein classification including some and excluding others. Principal purpose is that excluding same-sexcouples from legal benefits of marriage is “furthering link between procreation and child rearing.”But, many opposite-sex couples marry for reasons unrelated to procreation, and many don’t havechildren – the law extends benefits of marriage to many people with no connection to statedgovernmental goal. Also, many same-sex couples have children, and law affirms their right to adoptchildren, and protects their interests when such couples terminate their relationships.

Rule: VT is constitutionally required to extend the same benefits and protections to same-sex couples thatflow from marriage under VT law.

a. Notes: The framers of VT’s constitution probably didn’t think about same-sex marriage, but spiritof their desire to include should be upheld.

VII. Landlord-Tenant Law (p 445)A. Leasehold Estates

i. Generally – tenancies, or leaseholds, are nonfreehold estates. When any leasehold is created, a futureinterest necessarily arises.

ii. Term of years – estate that lasts for some fixed period of time or for a period computable by aformula that results in fixing calendar dates for beginning and ending.a. Can be any length, but some states limitb. Term must be for a fixed period but can be terminated early by some event or condition.


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c. Ends automatically, no notice of termination required.d. Death of L or T has no effecte. Words used to create: “to T for one year”

iii. Periodic tenancy – lease for a period of some fixed duration that continues for succeeding periodsuntil either L or T gives notice of termination.a. If no notice of termination, automatically extended for another period.b. Under common law, notice must terminate tenancy on the final day of a period.

1. 6 mos notice req’d for termination of PT where period is a year or longer.2. length equal to the period if period is less than a year, not to exceed 6 mos.

c. Now, some states have shortened length of notice and allow month-to-month to be terminated anytime after 30 days notice.

d. Death of L or T has no effect, although may terminate residential lease if T dies b/c residentialleases are “personal.”

e. Words used to create: “to T year by year”iv. Tenancy at will – tenancy or no fixed period that endure so long as both L and T desire.

a. Both parties must have ability to terminate at will or else it is a term of years or a periodic T.b. Ends at death of one of L or T.c. Modern statutes require some length of notice to terminate (30 days or length equal to interval

btwn rent payments).1. If rent is reserved and paid periodically, in most JX, a periodic tenancy arises by implication.

v. Tenancy at sufferance: Holdovers (p 451, 454) – arises when T remains in possession (holds over)after termination of tenancy.a. L has two options: 1) evict and get damages, or 2) consent (express or implied) to creation of new

tenancy “holdover.”b. In most JX, holdover gives rise to periodic tenancy

1. Length can be computed by time between rent in original lease or length of original term orperiod, but never more than one year.

2. Restatement: results in periodic tenancy measured by the way rent is computed, never morethan one year.

c. Usually subject to same terms as original lease unless new agreement or terms are inconsistentwith new situation.

B. The Lease (p 456)i. Generally: the transfer of a right of exclusive possession of land. This is what makes it an estate.

a. T can exclude L1. Licenses & easements don’t have possessory rights in the same way – can’t exclude others

b. Something called a lease may not be one, and something not called a lease may be one.ii. Conveyance of interest in land vs. Contract: Do you construe obligations under the lease as a property

arrangement or a contract?a. A lease meets the standard definition of a contract (modern) – has promises/covenants

1. Reform property law of L-T into contract law.b. A lease also concerns an estate in land (traditional) – transfers possessory interest in land.

1. Traditionally: leaseholds classified as an interest in land, but were still personal property:chattels real.

2. The law was very pro-landlord. Property arrangements that came out of this system persistedthrough industrial revolution, into US, and well into the 20th century.

iii. Statute of Frauds (p 458)a. Every state has one.b. Most: leases for > 1 yr must be in writing, allow oral leases for < 1 yrc. Oral lease + payment = periodic tenancy not subject to statute of frauds.

iv. Form leases – would be costly to bargain individually, but form leases can put T at a disadvantageb/c less bargaining power.a. Economic argument: doesn’t matter whether or not T can haggle, just that there isn’t a monopoly

and that competition forces sellers to have terms that protect purchasers.


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C. Selection of Tenants (p 460)i. L generally owns property in fee simple, and generally can choose who to let use the property. Choice

of T is part of right to exclude. You don’t have to rent any property you have if you don’t want to.ii. But, federal (& state) law controls how you can’t pick and choose in sale and rent.

a. Fair Housing Act1. Exceptions for individual landlords w/o much property as long as they don’t advertise or use

a real estate broker, salesman.2. Can’t discriminate on basis of race, sex, color, religion, familial status, national origin,

disability.A) Must allow reasonable accommodations for people with disabilities

D. Subleases and Assignments (p 482)i. Sublease vs. Assignment

a. Traditional formalistic view: assignment is when lessee transfers all of his interest – possessionfor the whole term. Sublease when transfers anything less than whole term so that lessee has areversion.1. Partial assignment of part of premises allowed under an assignment and is not a reversion

(majority view)2. If power of termination or right of reentry is allowed for breach of obligation, in majority, it

can still be an assignment – but minority holds that it makes it a sublease.b. Less common view: Intention of parties – Actual words are not conclusive but may be persuasive.

ii. Privity of estate and privity of contracta. L and T are in privity of estate and privity of contract when there is no assignee or sublessee.b. When T subleases:

1. T has a reversion for the remainder of the term2. L and T: privity of contract and estate, and T remains liable.3. T and sublessee: privity of estate and contract4. L and sublessee: no privity of estate.

A) Neither L nor the sublessee can bring suit against the other.c. When T assigns:

1. L and T: privity of contractA) T is the assignee’s surety. A is primarily liable, and T is only secondarily liable.B) However, T impliedly assigns his privity of contract right to sue L for L’s breach of

covenants whose burdens run with the land. Assignee only may sue L for the breach.2. L and Assignee: privity of estate

A) During the time assignee is in possession of the land, he is liable for covenants whoseburdens run with the land. Thus A is liable for rent to L even if he didn’t promise topay.

3. A and T: privity of contract IF A makes a promise to T.A) Privity of contract liability remains even if A assigns to someone else.

4. L can release T from privity of contract and get contractual rights against assignee – this is anovation.

5. A isn’t liable for covenants running with the land if he is no longer in possession because heassigned his interest to someone else.

d. When T subleases or assigns:1. Tenant remains liable to L even if he assigns or subleases (privity of contract).2. If transferee makes a promise to T, he is in privity of contract with T. T can sue transferee

even if the he transfers his interest to someone else.3. T can terminate the lease if covenant is breached and can then evict the transferee.

A) But if T voluntarily gives up the original lease, transferee is still entitled to possession.In this case, the sublessee becomes in privity of estate with L.

4. L can sue transferee who has promised to pay rent or perform obligations under the leaseeven if transferee has transferred. L is a third party beneficiary and therefore in privity ofcontract with transferee.


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Privity of estate and K privity of KL T L T

estate and K estate privity of K T1 maybe K T1

SUBLEASE ASSIGNMENT

iii. Examples:a. L leases to T for three yrs, T “subleases, transfers, and assigns” interest for one year to T1.

Neither T nor T1 pay rent.1. This is a sublease because T is transferring less than complete interest. T has a reversion

interest.2. L can recover from T. L doesn’t have a direct remedy against T1. L cannot sue T1 for rent

because T1 has never promised to uphold original obligations of lease. L can, however,evict T1 for non payment of rent.

b. L leases to T for term of 3 yrs, for monthly rent and keeping up repairs. T assigns entire interestto T1, who agrees to uphold covenants of lease. Then T1 assigns to T2, then T2 assigns to T3.T3 defaults.1. Who is liable?

A) T liable (not released from privity of K).B) T1 liable because had promised to uphold covenants, so in privity of K w/ L - L is 3rd

party beneficiary. T1 is no longer in privity of estate w/ L.C) T2 escapes because T2 is not in privity of estate with L and not in privity of K.D) T3 is liable because he is in privity of estate.

2. Covenant to pay rent runs with the estate. Covenants that run with the land automaticallytransfer when the estate is transferred.

iv. Covenantsa. Covenants that run with the land (such as rent) automatically transfer when the estate is

transferred.b. A burden or benefit that touches or concerns the interest in land will run with the land.

1. Burden touches or concerns if it relates specifically to the property and diminishes or limitspromisor’s use or enjoyment of the land. Benefit touches and concerns if it relates toproperty and increases use or enjoyment of the land.

2. Not all promises will run with the land as to the benefit and the burden. Ex. If L promises tonot have a bakery next door, a transferee would get this benefit as well b/c it runs with theland. If L assigns his reversion to L1, the burden of the promise will not transfer because theburden doesn’t run with the leased land.

v. Ernst v. Conditt (p 482)Facts: Ernst (P) leased land to Rogers: can’t assign or sublease w/o permission; must remove all

improvements. Rogers sold business to Conditt (D). Rogers got permission from Ernst to transfer, toextend lease b/c D wanted to, and promised personal liability. Rogers and Conditt’s agreement“sublet” to Conditt for consideration and promise to fulfill requirements of Roger’s lease. Condittstopped paying rent, remained in possession until end of lease, and didn’t remove improvements.Ernst sues for back rent and improvement removal.

Issue: Was the agreement between Rogers and Conditt a sublease or an assignment?Analysis: Court holds that this is an assignment because Rogers gave up his interest for the whole term

(formalistic test) and the parties’ intention was to assign (intention test). Doesn’t matter that theagreement said “sublet.” D is liable to Ernst for rent and for the improvements because he is inprivity of estate (assignee is in privity of estate with L) and privity of contract (D promised he woulduphold covenants of the original lease).

Concl: Agreement was an assignment, and Conditt (assignee) is liable to lessor for rent and removal of theimprovements b/c in privity of estate and contract with Ernst.

Note: Ernst could have also sued Rogers, the original T, and then Rogers could have sued Conditt.


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vi. Restraints on withholding consent to assign for commercial property.a. Minority allow lessor to withhold consent only when the lessor has a “commercially reasonable

objection,” even in the absence of a provision stating that consent will not be unreasonablywithheld (Kendall).1. Based on conveyance of property: common law doesn’t like restraints on alienation.2. Based on K: implied covenant that neither will do anything that will destroy other’s right to

enjoy fruits of the K. A duty is imposed to exercise discretion in good faith and inaccordance with fair dealing.

b. CA statute codifies minority position.c. Termination and recapture clause – T must give notice before assigning or subleasing, L could

terminate lease with T and sign lease with T1. T not entitled to any profits realized.1. Upheld for commercial leases entered into by sophisticated commercial entities operating at

arms length.vii. Kendall v. Ernest Pestana, Inc. (p 490)

Facts: Pestana was assigned T’s interest in aircraft hangar space, including a 25 year sublease with Bixler.Kendall wanted to buy business from Bixler, including assignment of sublease on the space. Thelease required Pestana’s written consent for sublessee to assign interest. Kendall was in a betterfinancial position than Bixler, but Pestana refused unless rent was raised.

Issue: Can a lessor unreasonably and arbitrarily withhold consent to an assignment if there is no provisionin the lease prohibiting withholding consent unreasonably and arbitrarily?

Analysis: A growing minority allow lessor to withhold consent only when the lessor has a commerciallyreasonable objection, even in the absence of a provision stating that consent will not be unreasonablywithheld.1) Leasehold interest: Policy against restraints on alienation pertains to nature of leases. Reasonablealienation of commercial space is important in our increasingly urban society. Lessor’s interests areprotected by the fact that the tenant remains liable as a surety if the assignee defaults.2) Contract: In every k, there is an implied covenant that neither party shall do anything that willhave the effect of destroying or injuring the right of the other to receive fruits of the k. A duty isimposed to exercise discretion in good faith and in accordance with fair dealing.

Concl: Both the policy against restraints on alienation (property law) and the implied contractual duty ofgood faith and fair dealing (K law) support the rule that where a commercial lease provides for anassignment only with lessor’s consent, consent may only be withheld where there is a commerciallyreasonable objection.

E. Tenant who Defaults (p 500)i. Tenant in possession

a. Repossession by L1. Common Law Rule: L may rightfully use self help to retake premises from T if 1) L is legally

entitled to possession or lease term allows reentry AND 2) L’s means of reentry arepeaceable.

2. Modern trend – self-help eviction is never an option for L to dispossess a tenant who is inpossession and has not abandoned or voluntarily surrendered the premises.A) In some JX, only prohibited for residential property. Risk may be even higher in

residential property.B) Most courts won’t allow waiver by T b/c of differential in bargaining power.C) Policy:

I) For: There are judicial means for speedy repossession and we want to discouragepeople from taking the law into their own hands. Self-help repossession leads toviolence.

II) Against: Raises rent for everyone, summary proceedings are costly and take a while,doesn’t reduce risk of confrontation.


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b. Berg v. Wiley (p 500)Facts: Wiley (D) leased commercial space, and tenant assigned to Berg. Berg made changes that

allegedly affected structure w/o permission, and restaurant had health code violations. Wileygave Berg 2 weeks to change or would retake. After 2 weeks of continued operation, Berg putup sign: “Closed for remodeling.” Confrontation when D saw her removing some paneling.Then Wiley changed locks while Berg was gone and wouldn’t let her in.Berg sued. Wiley said she abandoned and counterclaimed for damages to premises. Trial courtfound for Berg – didn’t abandon, Wiley’s reentry was forcible and wrongful as a matter of law.

Issue: Did Berg abandon premises, and was Wiley’s reentry forcible and wrongful as a matter of law?Rule: Common law: L may rightfully use self help to retake premises from T if 1) L is legally entitled

to possession or lease term allows reentry AND 2) L’s means of reentry are peaceable.Analysis: Berg didn’t abandon. She was still using property and paying rent.

Court adopts modern trend that self-help is never available to L. Furthermore, in this case, thecommon law rule would find this self-help reentry to be wrongful as well because the reentrywas forcible. The relationship between P and D was contentious. The only reason why therewasn’t violence was because Berg wasn’t there and she resorted to the judicial process.

Policy: Want to discourage Ls from taking law into their own hands, particularly since legislature hasprovided judicial means for speedy repossession. Self-help repossession leads to violence.

Concl: Court adopts modern trend that self-help is never available to dispossess a tenant who is inpossession and has not abandoned or voluntarily surrendered the premises.

c. Summary Proceedings (p 507)1. Traditionally, the only remedy was ejectment, which was long and costly2. Summary proceedings in every state for L to evict T.

A) Much quicker, but still takes a while.ii. Tenant who has Abandoned Possession

a. Abandonment – T vacates premises w/o justification, w/o present intention to return, anddefaults on rent.

b. Mitigation of damages1. Traditional rule (majority): L may recover rent due under lease regardless of whether L had

attempted to re-let the vacated premises. After T abandons, L may 1) accept surrender andterminate lease, 2) re-let on T’s behalf, or 3) leave vacant and sue for rent when it is due.A) T has a property interest in the leased premises and L can’t interfere with T’s own

property.B) Policy against: encourages economic waste

2. Modern: L has an obligation to make a reasonable effort to mitigate damages when T hasabandoned leased residential property (may apply to commercial in some JX). T is liablefor any amount L cannot recover, and L need not rent to an unsuitable T. (Sommer v.Kridel)A) If L has other vacant units, must make same effort to rent abandoned unit as makes for

other units. May have to try to rent that unit first.I) JX differ on whether L or T have burden of proof of whether L mitigated damages.II) T owes for whatever L wasn’t able to recover, extra costs incurred as a result, and

difference if L must rent for less.B) T cannot generally waive duty to mitigate.C) Lease is more like a K. Under K law, party has obligation to make reasonable efforts to

mitigate damages caused by breach of K.D) Policy against: L shouldn’t be forced to choose T he doesn’t want, T’s wrongdoing

doesn’t impose liability on L, L’s search may be seen as an acceptance of T’s surrender,encourages abandonment.I) If duty to mitigate, undermines ability to arbitrarily refuse to consent to assignment in

those JX that allow b/c T could just abandon.


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E) CA statute requires duty to mitigate, but L can recover amount up to what could havebeen reasonably avoided (burden on T) plus any other detriment to L proximatelycaused by T’s abandonment.

c. Surrender1. Voluntary surrender terminates lease if L accepts it. Extinguishes liability for future rent, but

not for back rent or other breaches.2. May be implicit or explicit

A) Abandonment is implied offer of surrender.3. Acceptance of surrender by L may be implied or express

A) Implied: actions inconsistent with continuation may be surrender if L doesn’t notify T.d. Sommer v. Kridel (p 509)

Facts: Kridel entered into 2-year lease with Sommer and paid 1st mo + security. One week into lease,Kridel wrote letter saying could no longer afford and forfeiting amt already paid. Sommernever replied. A third party inquired about the apt, but was told it was already rented. Sommerdidn’t rent until after end of 2-year lease. Sommer sues for entire amount of rent due for 2 yrs.

Issue: IS L under a duty to mitigate damages by making reasonable efforts to re-let an apt wrongfullyvacated and abandoned by T?

Rule: OLD rule: L may recover rent due under lease regardless of whether L had attempted to re-letthe vacated apts.

Analysis: Majority (old) rule is based on principles of property law that equate a lease with a transfer ofproperty interest in the owner’s estate. Thus it would be anomalous to require L to concernhimself with T’s abandonment of T’s own property. Ordinary residential leases are now not asdistinguishable from ordinary contracts. Application of k rules may be justified as a matter ofbasic fairness: recovery forbidden when damages could have been avoided by reasonableefforts. Burden of proof is usually on the party that breaches, but here L is in much betterposition to show that she took reasonable efforts, so burden is on L. T isn’t necessarily excusedfrom obligations – L doesn’t have to accept unsuitable tenant – but here there was a suitable Tavailable.

Concl: L has an obligation to make a reasonable effort to mitigate damages when T has abandonedleased residential property.

e. Landlord’s remedies and security devices1. L has right to sue for unpaid rent and damages due to other breaches

A) L can evict if T is still in possession. L couldn’t do this under traditional.2. Security deposit – many statutes limit amount, say amt must be kept in trust, L must pay

interest, L must itemize deductions.3. Other security devices

A) Payment in consideration of executing lease, advance rent, liquidated damages.B) Rent acceleration: On T’s default, all remain rent is due.

F. Duties, Rights, Remedies (condition of premises)i. “Moral hazard” – L has incentive to neglect once lease is executed b/c T bears costs of ordinary

repairs, and L’s only obligation was to turn over possession.a. Traditionally, T had to do all repairs, and L was under no obligation to warrant fitness. “Caveat

lessee” – T took leased property as is.1. Quiet enjoyment referred only to T’s access to the premises.

b. Journalists’ exposure of the slums started to change in early 1900sc. Principles began to be modified in the 60s.

ii. Covenant of Quiet enjoyment (CQE) and constructive eviction (CE)a. CQE & CE – Substantial interference with T’s beneficial use (CQE) by L is constructive eviction

of T, relieving T of obligation to pay rent if she vacates within a reasonable time.1. In most JX, T can also stay and still get rent abatement under breach of CQE.

A) L usually has a reasonable time to fix it after T gives L notice of the problem.2. CQE is implied in every lease and cannot be waived.


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A) Implied CQE followed in all JX for residential and commercial leases and interpretedbroadly.

B) L has a duty to: disclose latent defects, maintain common areas, control other tenants.C) Interference need not be permanent, just substantial.

3. Partial CE – some JX allow T to be relieved from liability for the portion of the rent for thepremises that cannot be used.

b. Reste Realty Corp. v. Cooper (p 522)Facts: Cooper (D) entered 5 year lease of basement floor of building from Reste (P), agreeing that she

had inspected the premises, accepted them as they were, and promised to keep premises ingood condition. Lease contained express covenant of quiet enjoyment. Floor flooded everytime it rained due to the construction of the driveway and foundation (not part of the leasedpremises), interrupting D’s business. Building manager dried out floor when D complained. Ayear later, Cooper entered new 5-year lease, and building manager promised to fix the floodingproblem. Work was done, the problem stopped but came back worse than before. Managercontinued to promptly respond to instances of flooding. Then manager died. No one respondedto D’s complaints of flooding. 9 months after manager’s death, a particularly bad floodingincident occurred, D gave notice she was vacating, and moved out 10 days later. Landlord suedfor rent for remainder of lease.

Issue: Was Cooper constructively evicted, relieving her of liability for rent on remainder of the lease?Analysis: The leakage problem could not have been reasonably ascertained by T and was not a problem

with the actual premises she had leased. L knew or should have known of the problem and hada duty to inform her. D knew about the problem when she entered the second lease, butreasonably relied on manager’s promise to fix it. The interference was substantial.Vacating premises under theory of constructive eviction is a serious, so 9 months is areasonable amount of time. Constructive eviction can occur either from a breach of thecovenant of quiet enjoyment or a material breach of another covenant of the lease.

Concl: Substantial interference with express or implied covenant of quiet enjoyment of the leasedpremises or material breach of another covenant of the lease by and act or omission of L isconstructive eviction of T, relieving T of obligation to pay rent if she vacates within areasonable time.

iii. Implied warranty of habitability (IWH)a. IWH – implied and unwaivable in every residential lease that L will deliver and maintain

premises that are safe, clean, and fit for human habitation.1. Typically must be major problems affecting T’s health and safety – usually for low-income

housing only.A) Housing code violations are evidence of breach but aren’t conclusive.B) Doesn’t apply broadly to enforce all promises regarding condition of premises.

2. Not accepted in every JX, may be waiveable if T had equal bargaining power.3. Remedy

A) K remedies availableB) T may remain in possession and sue for reimbursement and damages (possibly even

punitive damages), or withhold rent and raise as a defense when L suesC) T may terminate lease and sue for damages.D) Injunctive relief – rarely used by T.E) Most JX allow as a defense to eviction.F) Some JX only allow if breach is so substantial that it relieves of all liability for rent.

4. Calculation of damagesA) Difference btwn value if in good condition and current condition ORB) Difference btwn agreed rent and value in conditionC) Rent reduced by percentage equal to loss of value due to breach.

5. Policy against: Raises everyone’s rent and thus increases homelessness.6. Different than CQE:

A) CQE applies to all leases, IWH just to low-income residential leasesB) IWH preferred where applicable b/c greater damages possible and easier to prove.


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C) IWH can be raised at any time, CQE must be raised within a reasonable timeD) CQE generally requires vacation of premises, IWH doesn’t.

7. CA: IWH for residential leases, and L can’t retaliate.b. Hilder v. St. Peter (p 533)

Facts: Hilder (P) rented apt. St. Peter (D) told her she could get back her security deposit if shecleaned the apt herself. Hilder did, but D denied ever getting the deposit. The apt was inextreme disrepair, and D ignored all of P’s requests for repair. P had to repair many things ather own cost, and had to stop using part of the apt. P retained possession and sued forreimbursement of all rent paid and compensatory damages.

Issue: Did the state of the apt constitute a breach of the implied warranty of habitability, entitling P toreturn of all rent paid plus additional damages even though P never abandoned the premises?

Analysis: Today, T is in an inferior bargaining position compared to L, and enters into lease to obtainsafe, sanitary and comfortable housing, not arable land. Implied warranty of habitability coversall latent and patent defects in the essential facilities of the residential unit, and cannot bewaived by agreement. Substantial violation of housing code is evidence of breach of IWH, andalso anything that has an impact on the health and safety of T. L has a reasonable time tocorrect. T doesn’t need to abandon premises to recover (constructive eviction), and can also getpunitive damages.

Concl: In the rental of any residential dwelling unit, there is an implied warranty of habitability in thelease that L will deliver over and maintain, throughout the period of the tenancy, premises thatare safe, clean, and fit for human habitation.

c. Retaliatory eviction (p 543)1. Traditionally, L could terminate at will2. Modern – presumption of retaliatory eviction if L seeks to terminate or raise rent w/in set

period after good-faith complaint by T based on condition of premises.A) L cannot retaliate after period, either, but T bears burden of proof.

d. L’s Tort Liability (p 544)1. Traditional: L only liable for duties arising out of CE and CQE2. Minority: use IWH to impose general standard of care on L in all circumstances.

A) CA leads the way in imposing liability for injuries that occur.3. Majority – don’t recognize duty of care but recognize only common law exceptions.

iv. T’s duties, L’s rights and remedies (p 546)a. T’s alterations can be waste, but not every alteration is waste.

1. Look at effect on use and value, permanence, length of remaining term of lease.2. Fixtures, though originally chattel, become part of the land

b. Permissive waste traditionally obligated T to repair.c. Destruction of premises

1. Traditional – T still liable for rent b/c lease is an interest in the soil2. Modern – for rental of only part of a building, T is excused from rent if premises are

destroyed.A) Explicit covenants to repair generally accept normal wear and tear as well as damage by

fire or other casualty.Land Use ControlsVIII. Nuisance (p 747)

A. Introi. Nuisance – A substantial, non-trespassory invasion of another’s interest in the use and enjoyment of

land that is either 1) intentional and unreasonable OR 2) unintentional result of negligent, reckless,or abnormally dangerous activity.a. Substantial invasion

1. Mere ugliness is not enough.2. Objective standard


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b. Intentional and unreasonable measured:1. Level of interference2. Gravity of harm outweighs utility of actor’s conduct

c. Intentional nuisance excused if it is reasonable or doesn’t cause much harm.d. Generally only normal use of property is protected by nuisance law, not abnormally sensitive

uses.1. But may still be a nuisance if gravity of harm outweighs utility of conduct.

ii. Trespass – physical invasion of another’s property.a. Generally, intentional tort that results in liability regardless of harmb. Unintentional trespass is treated like an unintentional nuisance (must be result of negligent,

reckless, or abnormally dangerous activity).iii. Nuisance is part tort (negligent or wrongful activity) and part property law ( interference with land)

a. Sic utere – One should use ones property in a way that doesn’t injure the property of another.iv. Kinds of nuisances

a. Fear and loathing – Halfway houses and prisons may be found to be nuisancesb. Light and Airc. Spite – courts generally find nuisance liability for structure with no use other than to vex

neighbor.v. Private vs. Public Nuisance

a. Private nuisance1. Can only be brought if it interferes with enjoyment of P’s land.2. Still private even if there are many landowners who are affected.

b. Public nuisance1. Interferes with health, safety, peace. Protects public rights and need not interfere with land

use rights2. Action can be brought by government or member of the public who is affected and can show

“special injury” – damage different or beyond injury to the public.c. CA: Anything injurious to health. Nothing done or maintained under express authority of statute

is a nuisance.1. Public: affects at the same time an entire community or neighborhood even if harm is

unequal.2. Private: Any nuisance that isn’t public

B. Right to Lateral and Subjacent Support (p 754)i. Lateral Support – support provided to one piece of land by the parcels surrounding it

a. Cause of action doesn’t arise until subsidence (sinking) occurs or is threatened and runs againstthe excavator, who may be a predecessor of the present possessor

b. Liability is absolute, no need to show negligencec. Liable only if negligent

1. If subsidence wouldn’t have occurred but for improvements by excavator’s successors andexcavator gave notice of plans/

2. If result of groundwater extractiond. Right to lateral support can be waived or expressly expanded.

ii. Subjacent Support – support underneath parcela. Generally arises when one person has mining rights, and goes as w/ lateral support.

C. Remedies for nuisancesi. Injunction

a. Traditional remedy for nuisance1. Whenever the damage resulting for a nuisance is found not “unsubstantial,” an injunction

should be granted (changed by Boomer).b. After receiving injunction, P may bargain with D to allow use to continue in exchange for $.c. Balancing the equities – weigh injury that may result to D and the public by ending activity

against injury sustained by P by allowing activity to continue (Estancias) – standard test forinjunction.


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ii. Estancias Dallas Corp. v. Schultz (p 755)Facts: Air conditioning unit at back of Estancias’s (D) apartment complex created lots of noise for

neighboring Shultzes (P): couldn’t carry on conversations in home, property value reduced byat lease $12.5k. D’s apts can’t be rented w/o air conditioning, would have cost $40k to build airconditioning differently, and now would cost $150-200k to change. Shultz’s sued forinjunction based on nuisance and sought damages. Jury found damages, trial court awardedinjunction. D appeals on ground that trial court didn’t balance the equities.

Issue: Does the injury resulting to D and the public by stopping the activity outweigh the injury to Pby continuing the activity?

Analysis: No evidence that the public will be injured by stopping the air conditioning. There is noshortage of housing. Nuisance will not be permitted to exist based on the “stern rule” ofnecessity rather than the right of the actor to work harm on his neighbor.

Concl: Even if there is a nuisance, the equities should be balanced: consider injury that may result to Dand the public by ending activity as well as injury sustained by P by allowing activity tocontinue. Here, P’s harm still outweighs.

a. Notes:1. No zoning laws in TX.2. By issuing injunction, ct gives Schultzes a property interest in Estancias’s land.3. P sued for damages and injunction, but they had to chose one (couldn’t get both under TX

law).iii. Permanent damages – D must pay P permanent damages or injunction will be enforced (Boomer).

a. Temporary damages may not enough if an injunction isn’t granted after balancing the equitiesbecause harm may continue, giving P continual causes of action for damages.

b. Remedies are often calculated on an uneven playing field1. Easier for D to show cost of stopping than for P to show harm inflicted such as health impact.

iv. Boomer v. Atlantic Cement Co. (p 759)Facts: Atlantic (D) operates a cement factory causing air pollution for Boomer (P) and probably the

public at large. An injunction would cause the plant to shut down (worth 45 mil with 300workers). The damage to P is relatively small. Trial court found a nuisance, gave temporarydamages, no injunction. Affirmed by appellate court.

Issue: Where the costs to D of an injunction are high, but no injunction will result in continualdamages to P, what should the court rule?

Rule: Old Rule: Whenever the damage resulting for a nuisance is found not “unsubstantial,” aninjunction should be granted.

Analysis: This plant is actually affecting the public at large, but it isn’t for the court to decide how to fixthe public harm in a private case. The damages to P will continue, so awarding temporarydamages will allow P to maintain successive actions for damages. The cost to D of aninjunction is so high, that isn’t fair to have an injunction.Two possible remedies: 1) order an injunction but postpone it to allow time for technologicaladvances to reduce pollution, 2) grant injunction that can be vacated on payment of permanentdamages to P for all harm incurred in the future. 1) isn’t feasible b/c such advances would takea long time and require the whole industry’s help. Court chooses 2) because will fully redresswrong to P.

Concl: Where an injunction would cost D a lot and damages to P are relatively small, court can grantinjunction that can be vacated on payment of permanent damages to P for all harm incurred inthe future.

Dissent: Should just grant injunction under old rule. This was allows and encourages wrongs to continueas long as D pays for them.

v. Coming to the nuisance – Abate all activity if P pays damagesa. Traditionally – if P came to the nuisance, this was an absolute defense for D.

1. But this meant that the first landowner determined the use for the whole area.b. The residential landowner may not have relief against agricultural business if he knowingly came

into a neighborhood already used for agricultural business (Spur).


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1. If ag business must be enjoined b/c of a public nuisance, residential developer must pay forrelocation.

2. The lawful use by the business is a relevant factor (zoned for agricultural use).c. P can be liable for only part of the costs if appropriate

vi. Spur Industries, Inc. v. Del E. Webb Development Co. (p 766)Facts: Spur owned a feedlot not too far from a retirement community (Youngtown). Del Webb bought a

bunch of (cheap) land right next to that community and the feedlot to build a residentialcommunity (Sun City). As he built closer to the feedlot, Del Webb had trouble selling the lotsclose to it. Del Webb brought action of a public nuisance b/c of the flies and odors.

Issue: 1) Where an operation of a business is lawful but becomes a nuisance b/c of a nearby residentialcommunity, can the business be enjoined (stopped by injunction)?2) If so, must the developer of a new town indemnify the operator of the business who must moveor stop because of the residential area created by the developer?

Analysis: 1) Youngtown residents not greatly affected, so just get damages. Sun City residents near feedlotare greatly affected by both public and private nuisance, so permanent enjoinder.2) In coming to nuisances cases, the residential landowner may not have relief if he knowinglycame into a neighborhood already used for agricultural business. However, Spur’s action isn’t justpersonal but b/c of damage to the residents. Del Webb must indemnify Spur for a reasonable amtof the cost of moving or shutting down.

Concl: The developer of a new town must pay if the operator of a business must move or stop becausethe business is a public nuisance to the residential development.

D. Nuisance law and environmental controlsi. Boomer court called for legislature to act to regulate pollution.

a. We now have sweeping administrative and permanent regulations that address these problems.Nuisance law could still be used, but it is much easier to use these statutes and say D violatedpermit or didn’t get a permit.1. Under the Clean Air Act, govt finds the cleanest factory, then says all factories have to be

like that one in 10 yrs.2. Actions can be brought privately or by govt under these laws.

b. Nuisance actions can still be brought even if these laws aren’t violated.ii. Incentives

a. Pay fee for polluting (effluent fee), or given a set amt of polluting rights.E. Zoning

i. Something lawful under zoning laws can still be a nuisanceii. Zoning law represents a governmental determination of the general use of the land, but not of the

specific use of a specific piece of land.IX. Private Land Use Controls: Servitudes

A. Easements (p782)i. Intro

a. Easements are non-possessory and create property interestsb. Affirmative Easement – right to use another’s landc. Negative Easement – right to prevent owner of another land from making certain uses of the

land.d. Easements Appurtenant – benefits the holder in the use of a specific piece of land.

1. Passes to successive owners of the dominant tenement.e. Easements in Gross – personal to the holder and not tied to ownership of a particular piece of

land. May not be transferrable or divisible.f. Dominant Tenement – Property benefiting from the right to use

1. No dominant tenement in easements in gross, only dominant tenant.g. Servient Tenement – Property burdened by the right to use, property on which the easement is

used.h. Duration of easement

1. Easements are permanent unless limited: can be easement determinable.


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ii. Creation of Easements – by express grant, by implication, by necessity, by prescriptiona. Easement by express grant (p 785)

1. Easements are within the Statute of Frauds b/c they are interests in land.A) By accepting, though, grantee is bound even though he didn’t sign it.

2. Traditionally: Easements can only be reserved for the grantor or the grantee.A) A grantor cannot actually reserve an easement, it is regarded as given to the grantor by

the grantee after receiving the full interest in the land3. Modern: Easement can be reserved for a third party if that is the grantor’s intention (Willard).

A) In R3d of Prop, but not followed by all cts.4. Notice: In express easement by grant, successive owners are on notice because they can view

the title records.5. Willard v. First Church of Christ (p 785)Facts: McGuigan owned a lot she bought so a church across the street use it for parking. Petersen

persuaded her to sell it to him so he could sell it to Willard (P). McGuigan wanted church tostill park there, so put “subject to” an easement for parking by church in the deed. Shediscounted the price 1/3. Petersen didn’t include that in the deed he gave to Willard. Willardbrought suit to quiet title, trial court found for him.

Issue: Can a grantor, in deeding real property, effectively reserve an easement for a third party?Rule: Common law: grantor cannot reserve an interest in property for a stranger to the title.Analysis: Old rule is based in feudal times. A reservation is treated as if it is a grant of the easement

from the grantee to the grantor, creating a new interest after the whole of the interest wasconveyed to the grantee. Our primary interest is in supporting the intent of the grantor.Clearly the intent was to have an easement. Facts do not support reliance on the old rule b/cWillard didn’t even know about the easement. In other cases, balancing competing interestsmay warrant application of the old rule to presently existing deeds.

Concl: In the interest of protecting the intention of the grantor, a third party interest in property maybe effectively reserved in a deed of real property.

A) Note: The easement was unclear b/c didn’t specify what “church purposes” were or howmany parking spaces needed to be reserved.

b. Easement by estoppel (p 791)1. License: oral or written permission given by occupant of land allowing the licensee to do

some act that would otherwise be a trespass.A) Licenses are revocable at will.B) Exceptions to revocability of licenses

I) License coupled with an interest – ownership of chattel located on licensor’s land orright to take something like timber from the land (profit a prendere).

II) License can become irrevocable when they become easements by estoppel.2. Easements by estoppel

1) a licensee exercises right of way2) with servient owner’s permission and3) goes to considerable expense to improve the right of wayA) Licensee relied on the tacit approval of licensor in going to expense of improving

easement.B) Licensor’s inaction in the face of obvious knowledge is enough.C) If the reason for the easement disappears, the easement will generally disappear as well,

but if reason continues, easement runs to successive owners of the dominant tenement.D) R3d Prop allows servitudes to be created by estoppel.


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3. Holbrook v. Taylor (p 791)Facts: Holbrook bought property in 1942 and allowed a right of way to be used by a coal mine

company, which it did for several years. There is nothing in writing. In 1964, Taylors boughtproperty next door and used the driveway for getting in and out and hauling equipment to buildtheir house. They also made improvements to the driveway ($100). In 1970 things started to getbad, and Holbrook wanted them to sign a document excusing Holbrook of liability. Holbrooktried to stop them from using it. There isn’t another good way to get to the Taylor property.Trial court found right of use by estoppel but not by prescription

Issue: Do the Taylors have a right to use the driveway by estoppel?Rule: Easement by estoppel: if licensee has exercised privilege given by licensor and erected

improvements at considerable cost.Analysis: No right by prescription: use not continuous or adverse.

There is right by estoppel: Owner of servient estate (Holbrook) knew the Taylor’s spent moneyto improve the driveway and either gave permission or at least tacit approval.

Concl: When a licensee exercises right of way with owner of the servient estate’s permission andspends money to improve the right of way, the license is irrevocable by estoppel.

c. Easement implied from prior existing use1) Use exists prior to severance: A quasi-easement exists on the quasi-servient part of grantor’s land

for the benefit of the quasi-dominant part.2) Severance by a common owner: Grantor conveys part of the land or conveys both parts to

different grantees simultaneously3) Use is continuous and/or permanent4) Easement is reasonably necessary for enjoyment of dominant tenement (some JX require

strict necessity)5) Easement must be apparent but not necessarily visible to the grantee (of the servient T)

A) English rule: grantor can’t reserve an easement for himself by implication. Grantor caneasily put it in the deed.

B) Only applies to easements appurtenant2. If it is reserved for the grantor, must meet stricter standards of necessity.

A) Some courts say it must be absolute necessity, others say it is only a factor.B) If grantor didn’t put it in the grant, the price may have been for the land w/o the

easement, and we don’t want to let grantor keep the easement and the money.3. CA: Costs of repairs to such easements are shared by parties who own it by agreement or

according to the proportion of use.4. If the dominant and servient T come into common ownership, easement is extinguished. If

the owner later redivides, a new easement by implication will arise if it meets requirements.A) Applies to easements implied from prior use and by necessity

5. Van Sandt v. Royster (p 796)Facts: Bailey owed 3 lots (19, 20, and 4) and built a sewer pipe across two of the lots for a house on

the third. Jones bought lot 19 and knew about the sewer pipe. Jones (19) Reynolds VanSandt (P). Bailey conveyed lot 20 to Murphy Royster (D). Lot 4 Gray (D). No deedcontained any reservations. P discovered sewage in the basement.

Issue: Is there an easement implied from prior use?Rule: An owner can’t have an easement in his own land, but may have a quasi easement on one part

of the land for the benefit of the other part.Analysis: Implied easement arises whenever grantor conveys quasi servient tenancy. The easement

must be one of strict necessity in order to establish an easement implied by reservation infavor of the grantor.An easement created by implication arises as an inference of the intention of the parties, notthe language of the grant. Each party is bound to his intention and what he might reasonablyhave foreseen the other party’s intention to be. Grantors may be assumed to intend thecontinuance of uses known to them that are necessary to the usefulness of the land. Thedegree of necessity necessary to imply and easement in favor of the grantor is greater thanthat to imply in favor of the grantee.


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Jones knew about the sewer, and this easement was necessary to the comfortable enjoymentof the property. P made an inspection of the premises and knew there was modern plumbing.P is charged with notice of the sewer – the use need not be actually visible if it is or should beapparent.

Concl: An easement was created by implication because the grantor knew about it and is thusassumed to have intended its continuance, grantee should have known about it (it wasapparent), and the easement is necessary for the comfortable enjoyment of the other property.

d. Easements by Necessity1) Severance by a common owner2) Need for easement existed at the time of severance (necessity now isn’t enough)3) Easement is strictly necessary and not merely convenient (most JX)

A) Only endures as long as necessary and is limited to extent necessaryB) Typically right-of-way for landlocked parcel

I) Landlocked land is economically inefficientC) Strict necessity may mean that if it is otherwise possible to get in just by foot, by boat, or

by extreme expense, the easement isn’t necessary.I) Burden of proof is on the alleged dominant estate: if she can’t prove necessity existed

at the time of severance, it is assumed not to have existed.2. Right to condemn (western states)

A) Some statutes give private owners a right to condemn a necessary right-of-way acrossanother’s property even if it doesn’t meet the other requirements of easement bynecessity. Dominant owner must pay for the right of way

B) Easement by necessity doesn’t operate in favor of the govt.3. Easement implies the intent of the party.4. Othen v. Rosier (p 802)Facts: Hill owned a bunch of land. He first conveyed part of land next to road (100 acres). There

was a way across that land to the back portion. No evidence that this was the only way fromhis land to the road or that it was in exactly the same place as it is now. He then conveyedpart of the back portion (60) but kept part of the land containing the road (16.31). Hill laterconveyed the rest of the back part (53) and the rest of the land with the road. Othen (P) latergot the two back parts: 50 and 63. Rosier (D) got the two front parts with the road – 100 and16.31. Rosier put up a levee by the road to protect farmland flooding that made the roadunpassable. Othen sues for injunction against this and other interferences with his use of theland. Trial court found easement by necessity for Othen over 100 and 16.31. Appeals courtfound no easement at all across either.

Issue: Does Othen have an easement by necessity or prescription across Rosier’s 100 acre and 16.31acre plots of land?

Rule: Easement by necessity: 1) unity of ownership of alleged dominant and servient estates, 2) theroadway is a necessity and not a mere convenience, and 3) this necessity existed at the timeof the severance of the two estates.

Analysis: No easement by necessity: Hill owned all land, but no easement across 16.31 plot b/c Hillstill owned this at the time he conveyed the 100 plot. Owner cannot have an easement acrosshis own land. Not clear that way across the 100 plot was necessary for Hill, as he may havehad other ways out. Must be clear evidence. Land completely surrounded by the land ofanother doesn’t give the former a way of necessity where there is no privity of ownership.No easement by prescription: Rosier used the road, too, so Othen’s use is permissive andcannot ripen into a prescriptive right. Othen cannot tack on the use of the road beforeRosier’s owned the land b/c no evidence that it was exactly the same road. Prescriptive periodcannot begin when Hill still owned the land. Burden of proof is on Othen.

Concl: Othen has no easement of necessity b/c roadway wasn’t a necessity at the time the estateswere severed, and part of the road wasn’t part of land that was severed while original ownerstill had title. Othen has no easement by prescription b/c Rosier used the road, too, makingOthen’s use prescriptive.

Notes: Most courts don’t construe exclusive use of easements by prescription so narrowly.


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e. Easements by Prescription1. History:

A) Fiction of the lost grant, then required presumed to have existed since 1189.2. Easements by prescription

1) Open and notorious throughout the statutory period2) Continuous and uninterrupted3) Adverse (not permissive)4) Under a claim of right

A) US courts set same time as S/L for AP.B) Use doesn’t need to be exclusive, but right to use must arise from more that the general

public’s right to use it.C) A change in the manner of use may be enough to shift it from a permissive to an adverse

use. Use may also change from adverse to permissive, and the S/L must start over.D) Applies only to affirmative easements, not negative easements.

3. Some American courts adopted the fiction of the lost grant: owner must acquiesce (notobject) but the use cannot be permissive.A) A letter telling prescriptive user to stop is enough even if she doesn’t actually stop

(unlike AP).B) In JX that don’t follow fiction of the lost grant, owner must effectively stop prescriptive

use.4. Public Prescriptive Easements – Obtained by long continuous use by the public under a

claim of right.A) Landowner must be put on notice by the kind and extent of the use, and that an adverse

right is being claimed by the public, not by individuals5. Implied dedication – landowner evinces an intent to dedicate, and the state accepts by

maintaining the land used by the public.6. Beach Access

A) Public prescriptive easements generally don’t work for beach access b/c use generallyregarded as with permission

B) CA, though, allows public prescriptive easements only w/in 1000 yards of the ocean.C) Some courts have used the doctrine of customary rights – existed for so long, no

memory of man runneth to the contrary.iii. Public Trust Doctrine – ownership of land from the shoreline to the mean high water mark is held

in trust for the public by the state.a. State owns out to 3 miles out, US govt 3-12 miles and has exclusive JX up to 200 miles out or to

limit of the continental shelf.1. CA has strong public trust doctrine laws: may even regulate use of water if it causes body of

water to shrink.b. Public may also use and cross area above mean high water mark that is privately owned if it is

necessary for the enjoyment of the beach.1. There is a built-in limitation to fee simple ownership just above the mean high water mark –

you have to let the public uses it to cross to the beach and sunbathe on it. This is aneasement by the general public to cross and use your property by virtue of the common law.

2. States have different approaches.3. Judicial decisions that modify property rights aren’t seen as governmental takings. Courts

create property rights, and therefore can modify them.c. Matthews v. Bay Head Improvement Assoc. (p 816)Facts: Bay Head Association owns or leases much of the dry sand area above the Bay Head beach, and

restricts use and access through to members (residents of the area) and their guests during thedaytime in the summer.

Issue: Can D restrict membership to residents and thereby preclude public use of the dry sand area?Rule: Beach up to the mean high water mark is held in public trust by the state for the use of the public.


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Analysis: In order to exercise right to use the beach land held in public trust, the public must have access tothis area through the dry sand area. Additionally, public must have use of the dry sand area forsunbathing and recreational activities to fully enjoy the beach. This isn’t a static right and doesn’tmean the public can use all of the dry sand area, just so much as is necessary.The Association acts as a quasi-public entity and thus must open membership to the public. Atthis point, other private owners of dry sand areas need not allow public use, but this may becomenecessary if Association loses lease on a lot of the dry sand area.

Concl: Where use of dry sand area is necessary for public enjoyment of the beach, the public trustdoctrine warrants the public’s use of this area, subject to accommodation of the use of the owner.D must open membership to the general public.

iv. Assignability of Easements (p 824)a. Easements in gross

1. Traditional: easements in gross are not alienable.A) Easements in gross are not limited to the need of the owner as easements appurtenant are

2. Modern: (Commercial) easements in gross are assignable if that is the intention of theoriginal grantor (Miller).A) Only recreational easements (hunting, fishing) are not assignable.B) R3d Prop allows assignment regardless of commercial character, and allows them to be

divided unless contrary to original intent or would create unreasonable burden.3. Easements in gross are not divisible and must be exercised as “one stock.”

A) This is to prevent the servient estate from being burdened beyond the extent originallycontemplated.

B) This only works if there is a small number of ownersC) This is not the way TIC works: right to use the undivided whole.

4. Easements in gross are generally enforceable against successive owners of the servient estate.b. Profits in gross are generally alienable, but courts are reluctant to allow them to be divided.c. One of the “canons of construction” – if you have a legal document that lists certain things, the

inference is that things not listed are excluded.d. Riparian owners (land alongside natural, navigable waters) have reasonable rights to use the

waters subject to the rights of the other owners.e. Miller v. Lutheran Conference & Camp Assoc. (p 824)

Facts: Pocono Spring Water Ice Co. conveyed an easement on an artificial lake for exclusive right “toboat and fish” to Frank Miller, his heirs and assigns forever. Frank conveyed one fourth ofinterest “to boat, fish, bathe” to Rufus (heirs and assigns forever), his brother. For 25 years theyshared the costs and profits of the business they operated: recreational bathing, boating, andfishing. Rufus died, some land near the river was conveyed to Lutheran Church, bad blooddeveloped within the Miller family, Rufus’s estate gave bathing rights to Lutheran Conference.Pocono Spring Water dissolved, Katherine Miller, Frank’s wife, bought the lease to the lake.Frank and Katherine sued for an injunction to enjoined Lutheran from selling bathing licenses.

Issue: 1) Did Frank and Rufus have bathing rights on the river?2) Were these rights assignable from Frank to Rufus?3) Are easements in gross divisible?

Analysis: 1) There are no riparian rights b/c this is an artificial lake. The deed clearly did not conveybathing rights to Frank. However, Frank and Rufus did sell bathing rights as part of theirbusiness, the owner, Katherine, as Frank’s wife, had knowledge of the use. Therefore, Frankand Rufus had a bathing rights easement by prescription.2) This is an easement in gross because it was not attached to the land but was personal. Thereis controversy over whether an easement in gross is assignable. There is no reason not to allowif it is the intention of the parties to give the right to assign, which it was.3) Easements in gross are not divisible out of concern of burdening the servient estate morethan was originally contemplated. If there is to be more than one person exercising the right,they must do so as “one stock,” and cannot use the easement if it interferes with the right of theother. Therefore, Rufus’s estate could not convey easement to Lutheran w/o Frank’s consent.


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Concl: Frank and Rufus had a bathing easement by prescription because they exercised bathing rightsopenly, continuously, with the knowledge of the owner but without express consent for 25years. Frank had the ability to assign his easement in gross to Rufus because it was clearly theintention of the original grantor to allow Frank to assign his interest. The bathing easement isnot divisible, and must be exercised by Frank and Rufus’s estate as one entity.

v. Scope of Easements (p 839)a. Easements appurtenant cannot be extended for use to other parcels to which the easement is not

appurtenant, even if the parcels are adjacent and the burden is not increased at all.1. However, one court refused to grant injunction if there is no injury to the servient owner

(Brown v. Voss).A) This decision isn’t followed b/c too dangerous to property rights.

b. Scope of types of easements1. by grant – terms will control. If ambiguous, courts will look at circumstances surrounding

creation to determine intent2. implied by prior use – use that existed prior to severance and any other similar use that the

parties might reasonably have expected will be permitted.3. by prescription – restricted to same general pattern of use that existed during statutory

period and consistent w/ what servient owner might have expected from not objecting.A) More restricted than other easements.

c. Changing the scope of easement1. Change must be reasonably foreseeable and reasonably necessary to enjoyment and

development of the dominant T.A) Courts usually will expand use from horses to cars, but will not expand for utility lines.

2. Easements can always be enlarged by prescription.3. There is a tension between serving the interest of the parties and the economic use of the land4. Location

A) Traditionally cannot be moved by servient owner w/o dominant owner’s consentB) Modern: can be moved w/o consent if servient owner pays for relocation, it doesn’t

significantly lessen the utility, create a burden, or frustrate the purpose of the easementd. Brown v. Voss (p 833)Facts: Parcel B has an easement appurtenant over parcel A for access to a single-family dwelling on B.

Brown, owner of B, later bought parcel C, which was adjacent to B and had no access road.Brown began work to building a new single-family dwelling straddling the border between B andC. This use didn’t increase use of easement. Voss, owners of A, blocked Brown’s access, Brownsought injunction against their blocking, D counterclaimed for injunction against P’s use of roadto get to C. Trial court denied D’s injunction, appeals reversed.

Issue: Should P be allowed to used an easement appurtenant to B to get to a dwelling straddling theborder between B and C if there is no increase in use?

Rule: Generally, easement appurtenant to one parcel may not be extended by the owner of that parcel toother parcels, adjoining or not, to which the easement is not appurtenant.

Analysis: Any extension of use of an easement appurtenant is a misuse, even if it doesn’t increase theburden on the servient estate. However, an essential criterion for injunctive relief is actual andsubstantial injury.

Concl: This is a misuse of the easement, but there is no injury to D, which is required for injunction, sono injunction granted.

Dissent: Any use is a misuse and a trespass. The fact that there is no increase in burden doesn’t warrant adenial of injunctive relief.

vi. Termination of Easements (p 843)a. Natural expiration – most are unlimited, but grant may limit lengthb. Purpose no longer appliesc. By prescription – terminates if servient owner wrongfully and physically prevents use for

statutory period.


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d. Merger – if dominant and servient estates come into the same ownershipe. Release – dominant owner may release in writing.f. Eminent domaing. Estoppel – dom owner’s words or conduct are reasonably likely to cause reliance, and it does.h. Abandonment – must be more than non-use. Must be a present intention to relinquish or action

inconsistent with future use.i. Easement not extinguished by tax sale of servient tenement.j. Preseault v. US (p 843)Facts: RR ran across Preseault’s (P) property, by grant in 1899. Grant for one part was “right of way”

and was determined by commissioner. Other part said “in fee simple” and came from owner of theland. RR stopped using tracks in 1975, removed tracks. Started being used as a trail, but taxes stillpaid as if RR. In 1986, state took over maintenance as public trail under Rails to Trail Act,keeping RR tracks open as public trails and for possible future use as RR. Lots of people used thetrail and came into P’s yard, Presault couldn’t use driveway or build another one.P sued for compensation under theory that trail amounted to a 5th Amendment taking. Court ofFederal Claims found for govt.

Issue: Did the conversion of the RR right of way into a public trail amount to a 5th Am. taking?1) Did RR have an easement or fee simple?2) If easement, was it limited to RR purposes only?3) If not limited, did easement terminate in 1975 b/c of abandonment?

Analysis: 1) When RR acquires estate in land for track, it is for no more than use needed. Part one: grantsaid right of way, so it is an easement. Part two: grant said in fee simple, but it actually wasn’t b/cowners were forced to convey interest to RR, so no more use than necessary is assumed.2) Use as trail is way different in degree and nature of burden than RR use, so use wan’tcontemplated.3) RR abandoned b/c stopped use and removed tracks. Continued taxing just shows bureaucraticslowness.

Concl: Govt owes P as a 5th Amendment taking b/c significant use of land that burdens P that created anew easement that was in any case not contemplated by original grantors.

Note: Property law is mostly state law, so Federal recognition of abandonment doesn’t control.

vii. Negative Easements (p 858)a. Right of the dominant owner to stop servient owner from using land in a particular way.

1. Negative easements are generally not recognized2. Traditionally, light and air easements were enforceable. This has taken on a new twist with

solar energy developments.b. All states have conservation easements – property owner conveys development rights in order to

conserve the land. These easements are controlled by terms of the easement itself (you canconvey some or all of the development rights), perpetual or can be perpetual, binding on allsuccessors.1. CA: perpetual in duration, not personal, never unenforceable b/c of a lack of privity,

particular characteristics follow the instrument.B. Covenants Running with the Land

i. Real covenants (History)a. Because negative easements were generally not enforceable, property owners created agreements

or promises restricting use of land.1. However, contractual duties aren’t enforceable against non-parties to the K, so needed to

have a property interest that could be enforceable against successors in interest.b. US courts created real covenants, promises respecting the land that runs with the land at law

1. Privity of estate is required, but can exist beyond the L-T relationship.2. Test for the running of the burden is stronger than the test for the running of the benefit.

A) First Restatement required horizontal privity for burden but not for the benefit to run.B) This was rejected b/c it only worked for subdivisions, but vertical privity is required

I) Burden doesn’t run to AP b/c no vertical privity of estate.c. Real covenant can be negative or affirmative promise (to not do or do an act).


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1. Negative covenants are treated like easements for succession purposes.2. Benefits and burdens of affirmative covenants run to successors of estates of the same

duration (traditional privity requirement)A) Burden runs to AP.

d. Covenants are not enforceable against assignees who have no notice of them.ii. Equitable Servitudes (p 864)

a. Equitable servitudes1. Successive owners are bound if: 1) that was what was intended, 2) successive owner had

notice, 3) promise touches and concerns the land.A) Notice can be inquiry notice – apparent that there is a common plan in the

neighborhood.B) If not in the deed, there must be some pattern of restriction, but it isn’t clear how much

is needed for the pattern to create a reciprocal easement on the properties with norestrictions in the deeds.

C) Touches and concernsI) The closer the promise comes to connection to a physical use of the land, the more

likely it is to touch and concern.II) An affirmative covenant may touch and concern if the benefit also serves the

burdened estate as in dues for upkeep in common interest communities (Neponsit).It is way harder for an affirmative covenant to touch and concern, particularlycovenants to pay.

III) Restrictions on the promisor’s use of her own land generally touch and concern.IV) Courts split on whether covenants not to compete touch and concern.

D) ES sometimes called negative easements2. ES followed in most JX3. R3d Prop goes farther and abandons requirement of touching and concerning.

A) Allows promises to bind all future property owners who have notice unless they areillegal, unconstitutional, or violate some public policy.

B) Asks if it is arbitrary or unreasonable restraint on alienationC) Some argue that touch and concern should be kept b/c we are allowing promises that

will run with the land forever.4. Can be enforced by a third party in some circumstances.

b. Equitable servitudes vs. Real covenants1. Equitable servitudes are enforceable in equity – can get an injunction2. Real covenants are enforceable at law – can get damages.3. Real covenants are stricter, have to be in writing, must have privity.4. Privity doesn’t matter as much for ES.

c. Tulk v. Moxhay (p 864) – A negative covenant is enforceable against subsequent purchasers evenif it doesn’t run with the land.1. Otherwise, purchaser would get it for a discounted price, and then sell it for more w/o the

restriction.2. Purchaser must have notice, and only negative covenants are enforceable as equitable

servitudes.d. Sanborn v. McLean (p 870)

Facts: D (McLeans) and P (Sanborn) each own part of lot 86 of a subdivision once owned by acommon owner. The original owners of the subdivision lots attached a restriction to the deedsof a number of lots that the lots would be used only for residential purposes for the benefit ofother lots retained by the original owners, including lot 86. D started building a gas station ontheir lot, P says it is in violation of the general plan of the subdivision.

Issue: Is D’s land subject to a reciprocal negative easement?Rule: When the owner of two or more lots sells one with restrictions that benefit the land retained,

the owner of the lots retained cannot do anything forbidden to the owner of the lot sold.Reciprocal easements require actual or constructive notice to the subsequent purchasers of theowner’s retained lots.


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Analysis: Lot 86 was retained by the original owners when they sold lots with restrictions that benefitedlot 86. Therefore, lot 86 became bound to reciprocal negative easement. D was put on inquirynotice that the lot was subject to restriction because all the surrounding lots were obviouslyuniformly built according to a common plan. If D had inquired, they would have found out thatthere was a reciprocal negative easement on their lot prohibiting the building of a gas station.

Concl: The lot contains a reciprocal negative easement because the lot was retained by its originalowners while others were sold with negative easements that benefited the lot, and the easementis enforceable because D were on inquiry notice when they purchased the land.

e. Neponsit Prop. Owners Assoc v. Emigrant Indus Sav Bank (p 875)Facts: Deed to land included covenant to pay money each year for maintenance of public roads,

beaches in the community, unpaid money to be enforceable as a lien against the property andenforceable by all assignees. Covenant included in all deeds of the land, including D’s.Property owners association brought action to foreclose lien for non-payment.

Issue: Is this covenant enforceable against subsequent purchasers?Rule: must 1) be the intention of the grantor and grantee that covenant run with the land, 2) covenant

must touch and concern the land, and 3) must be privity of estate between promissee or partyclaiming benefit and party w/ burden.

Analysis: 1) From instrument, clearly intended covenant to run with the land.2) Touches and concerns usually only applies to negative easements. However, substancerather than form allows ct to find that this does touch and concern the land b/c burden is for thebenefit of the same land that is benefited, and so is inseparably attached to the land.3) Property owners association, as a corporation that doesn’t own any of the land in thecommunity, has no privity of estate with the burdened party. However, the association existssolely for the benefit and to be the voice of the owners of the land that is benefited. Again,applying substance over form, there is privity of estate.

Concl: The lien is enforceable because the grantee and grantor intended the covenant to run with theland; the land burdened is the same as the land benefited so that the burden is inseparable fromthe benefited land; and the association, though not in privity of estate with D, represents thosein privity of estate with D.

f. Defeasible Fees and Land Use Control Devices1. Defeasible estate is another property law based way of controlling land. These are less

important in terms of land use in US.2. Property is now more controlled by zoning and covenants than defeasible fees and easements.

iii. Scope of Covenants (p 893)a. Interpretation of scope of restrictions

1. If language is ambiguous, in favor of free enjoymentA) Want to allow personal freedom, economically better to have fewer restrictions.

2. Covenant interpreted reasonably but strictlyA) Words will not be construed literally if this would create absurd results.

3. Covenants are construed based on the impact to the community, not on the private activitieswithin the home. (Hill v. Damien)A) Courts want to respect privacy but still address the community impact.B) Look at the range of impact that would be created by use under the covenant and see if

D’s use falls within that range.4. If language specifically prohibits, enforceable unless violates public policy.

b. Statutes tend to be given more deference b/c they are created by an elected body.


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c. Hill v. Community of Damien of Molokai (p 893)Facts: Community is a home for 4 people w/ AIDS living together, taking meals together, w/ nursing

care coming in but not living there. P started complaining after there was a newspaper articleabout Community. There are other homes in violation of the covenant in the neighborhood.Neighbors (Hill +) say Community is violating covenant that land is for “single residencepurposes” only and that there is increased traffic. D says that they are a family, and that to enforcethe covenant would be a violation of the Fair Housing Act.

Issue: Do the 4 residents constitute a “family”? Would enforcement of covenant violate FHA?Rule: Fair Housing Act: discriminatory intent – whether D is treated differently from other non-disabled

similarly situated people. Disparate impact – Conduct actually or predictably results indiscrimination. Reasonable accommodation – Failure to make reasonable accommodations toallow disabled person to use home.

Analysis: Community is a family b/c they live together as a family. The purpose is to create a group homedissimilar to an institution. Strong public policy – allowing disabled people to live outside ofinstitutions and in residential neighborhoods, which can sometimes only be accomplished bygroup living. Increased traffic isn’t part of the covenant.Additionally, violates FHA: There is a disparate impact, and not enforcing the covenant would bea reasonable accommodation.

Concl: Community is a single-family because they live as a family. Enforcing the covenant would violateFHA b/c it would discriminate against disabled individuals by not allowing them to live inresidential neighborhoods.

iv. Termination of Covenants (p 911)a. Changed conditions

1. As long as original purpose can still be accomplished and substantial benefit is derived fromcovenant, covenant is valid even though property has greater value if used for otherpurposes.A) Owners relied on the promise in purchasing the land and should be upheld even if the

negative impact would be less than the increase in value if the covenant were broken.B) Conditions must change so dramatically that is doesn’t make sense to enforce the

covenant.2. Changes must occur within the actual subdivision or area. Changes outside of it are not

enough.3. When zoning and private covenants are in conflict, the more restrictive one applies.4. Land must be rezoned before covenant can be inspected for discard.5. Enforcement may not be as economically efficient, but the objective is enforcing the

promises that were made. There is a mutual restrictive benefit because, collectively, thepromises running against each other creates a communal benefit.

b. Abandonment and waiver (also acquiescence)1. For community violations to constitute abandonment, they must be so general as to frustrate

the original purpose of the agreement.A) Sporadic violations are not enough.

c. Other defenses to equitable servitudes1. Estoppel or acquiescence – if other owners watch breach happen but don’t say anything,

may be held to be estopped or have acquiesced.2. Clean hands doctrine – if I violate the restriction, I will have a hard time forcing you to

follow it because I have unclean hands.3. Laches – If you unreasonably delay in seeking to enforce your rights, you may not be able to

enforce them.d. R3d makes covenants easier to create and easier to terminate.e. Covenants are based on more than just expectations (nuisance law). They are based on formal

promises that create real, legitimate expectations much more strongly than nuisance situations.


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f. Western Land Co. v. Truskolaski (p 911)Facts: D, subdivision developer wanted to build shopping center in one area of subdivision. Covenant

that land in subdivision was for single-family homes only existed on all plots. Area around thesubdivision has become more commercial and high traffic than it used to be. D argues this areahas changed so radically that it has nullified the purpose. Also argues that homeowner violationsof the covenant (day care in home, plot too small) are abandonment and waiver of covenant.

Issue: 1) Has the area so radically changed that it nullifies the purpose of the restrictive covenant? 2) Doviolations by other home owners constitute abandonment and waiver of the covenant?

Analysis: Residents still derive benefit from covenant – not much traffic within the subdivision, homes arewell-kept. Changes outside are not enough – there must be changes within the actual subdivisionto nullify the covenant. Even though city zoned area commercially, commercial zones allowresidential uses, when zoning and private covenants are in conflict, more restrictive one applies.The violations of the covenant by homeowners are distant and sporadic.

Concl: Covenant upheld. If original purpose can still be accomplished and there is still a substantialbenefit, covenant is valid even though property has greater value if used for other purposes.For community violations to constitute abandonment, they must be so general as to frustrate theoriginal purpose of the agreement.

g. Rick v. West (p 916)Facts: Rick subdivided land, sold to homeowners, but had a hard time selling all of land. Rick conveyed

remaining land to P, who wanted to sell to hospital. West objected to use outside of the residentialcovenant.

Analysis: Court doesn’t give damages to D in lieu of covenant enforcement. Landowner has a right toenforce a restrictive covenant in her favor as long as the use is not outmoded and it affords realbenefit to owner.

v. Common Interest Communities (p 925)a. Uniform Common Interest Ownership Act requires a declaration of rules that are disclosed to

purchasers.1. Most CIC have homeowners associations that all owners are automatically members of.

A) Enforces covenants, conditions, and restrictions and can vote in new CC&Rs.2. Generally deeds also include attorney’s fees provisions.

b. Condominiums1. Each individual interior of units are owned separately in fee simple.2. Exterior walls, land, and common areas are owned by all as TIC.3. Pay monthly charge for upkeep and for liability expenses.4. Assoc has right to assess repairs and charge owners their share.

c. Planned unit developments – gated communities, privately owned townsd. All owners are in vertical and horizontal privity of estate.

1. Negative covenants restricting use almost always held to touch and concern.e. Standards of judging restrictions

1. Restrictions in the deed are afforded greater presumption of reasonableness than those addedby association later.A) CA: restrictions in deed are valid unless wholly arbitrary or contrary to public policy.

I) The restrictions are evaluated by looking at the impact on the community as a wholeof any such violation of the restriction, not at the individual homeowner’s violation.

II) The burden of proof is on the challenger.B) Restrictions added later are given less deference: shifting standard of proof or have to be

reasonable.2. Business judgment rule – Focuses on the process: did they consider all the facts and make

decision in good faith?A) If yes, they are protected even if there were bad consequences or the decision turned out

to be a really bad decision.B) Standard used to judge decisions by corporate leaders in business matters.


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C) Courts often regard associations as corporations. They have attributes of bothcorporations and mini-governments.

3. R3d Prop: Restriction enforceable unless lacks rational justification, but draws a distinctionbetween direct (who you sell the house to) and indirect restraints (paint color)A) Direct restraints must be reasonable

I) If you must get permission to sell, this is probably unreasonableII) If assoc has right of first refusal (right to meet any other offer before the proposed

contract is accepted), this is probably enforceable.4. There are also privacy issues: how far into the private home does the court want to reach?

f. Nahrstedt v. Lakeside Village Condo Assoc, Inc. (p 927)Facts: Nahrstedt, owner of a condo in the Village, owns three indoor cats in violation of community

restriction in the master deed against pets other than birds and fish. P says she didn’t know aboutthe restriction.

Issue: Is the pet restriction unreasonable, and can it be enforced against an objecting home owner?Rule: Restrictions in the recorded declaration are enforceable unless unreasonable.Analysis: Restrictions added later by the homeowners association must be reasonable. Restrictions in the

recorded declaration, however, are afforded a presumption of validity that will be enforced even ifthey are unreasonable to some degree. The burden of proof is on the objecting homeowner.Associations must enforce restrictions in good faith. Here, the homeowners relied on thisrestriction in purchasing their condos, and have not repealed the restriction.

Concl: Restrictions in the recorded declaration of a common interest development are enforceable unlessarbitrary, the burden substantially outweighs the benefit, or violates public policy. The restrictionswill be evaluated by looking at the community as a whole, not at the individual homeowner.

g. NY Co-operative Apartments (p 942)1. Title of land and building is held by a corporation, each resident owns stock and has a long

term renewable lease, so that they are both owners and tenants.2. All share mortgage and taxes, so that all depend on the financial stability of the others.

A) Can deny entry for any reason.X. Governmental Taking

A. Eminent Domain (p 1093)i. Private property cannot be taken by the government for public use without just compensation

a. 5th Amendment applies to federal govtb. 14th applies to state govt (interpreted to cover state takings later)c. Understood as: govt can take your property without your consent if they pay you and it’s for

public use, although it isn’t written that way.ii. Key questions:

a. Property1. Generally look to state law (property law), but there are some federal property laws (patents).2. Usually deals with land b/c govt doesn’t generally have use for personal property

b. Taking1. Taking is limited because it is unpopular, and govt has to pay for it using taxes.

c. Public use1. Doesn’t have to be physically for public use. Public purpose is enough.

A) The courts defer to legislature to decide if it is for a public purpose unless there is norational reason (HHA v. Midkiff).

d. Just compensation1. What a willing buyer would pay a willing seller

A) Doesn’t take personal or sentimental value into consideration.2. Can be complicated to determine

A) If govt is only taking part, and the rest will be increased in value as a result of the newuse, govt can offset what it owes you.

B) But the partial taking decrease the value of your other land, govt has to compensate youfor that, too.


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iii. HI Housing Authority v. Midkiff (p 1098)Facts: HHA made law forcing private owners to sell homes to T in order to more equitably distribute

property ownership in HI. Law required a certain number of T interested and able to buy from asingle owner. If owner and T couldn’t agree, price could be set by condemnation trial. HI set it up asa taking so that the owners wouldn’t have to pay as much taxes.

Issue: Is forcing sale to individual tenants a public use allowing a taking under the 14th Amendment?Analysis: Subject to constitutional limitations, if the legislature has determined that a taking has a public

purpose, the courts must defer to this decision. The court’s role in reviewing this decision is narrow,even when the govt is exercising a police power. It is the belief of the legislature at the time ofpassage that is examined, not whether the law in fact accomplished its goal.

Concl: Courts must defer to legislature’s decision of what constitutes public purpose unless the use ispalpably without reasonable foundation.

B. Regulatory Takings (p 1151)i. Regulatory takings: Govt so restricts the uses to which land may be put that it has effectively been

taken.a. The owner still has title, ownership, the right to exclude, but there are limits on the uses that the

owner may make of the land.ii. Test: Ct considers several factors when determining whether a taking has occurred (Penn Central):

a. The economic impact of the regulation on the claimantb. The extent to which the regulation has interfered with distinct investor expectations

1. Look at expectations: If they knew it was restricted when purchased, maybe lowerexpectations.

c. The character of the governmental action.1. Can the action be characterized as a physical invasion?2. Is there a reason like health and safety?

d. Per se rule: When the regulation deprives property of all value, it is a per se taking that requirescompensation unless background principles of state nuisance law” in the state would haveprohibited the use.1. Tahoe-Sierra Preservation Council– Imposed 5-year building moratorium. Court:

moratorium is not a permanent deprivation of all value. This limited Lucas. (Semi-permanent may be enough)

2. Causby – military landing base next door wasn’t a taking b/c it wasn’t on their land. But, theyhad a chicken farm, and the chicken’s couldn’t take the noise of the planes flying overhead,so found a taking of the airspace above.

iii. Reciprocity of advantages – zoning laws are ok b/c restricted property benefits, too.iv. The parcel is looked at as a whole, not whether segments have been completely taken

a. But, if planes flying through airspace negates ability to continue use of the land, farming, may bea taking (US v. Causby, p 1160).

b. Otherwise, govt would have to compensate for “set back” regulations saying how close buildingscan get to roads.

c. If the part (like the airspace) was sold to another party, then it may be a taking b/c it would betaking all of the property owned by that party. However, ct would look at buyer’s awareness ofthe law to see what the investor expectation was (Lucas v. SC Coastal Council).

v. Distinguished from nuisancesa. Needn’t pay if enjoining from harmful activities. But line may not be clear: are they preventing a

harm or securing a nuisance?vi. Taxation isn’t taking.vii. Regulation of personal property by destroying a strand in the bundle (eagle parts) is not a taking b/c

not all bundle needs to exist.viii. Dolan – govt rezoned so P could build new store on condition that she allowed a public bike path.

Court found a taking b/c the harm must be proportional to the condition if govt is going to do that(higher burden to factually show public need).


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ix. Loretto – required compensation when states required landlords to permit cable companies to installcable facilities on their property. But only got $1.

x. Penn Central Transp Co. v. City of NY (p 1151)Facts: NYC’s law to protect historic buildings covers Grand Central Station. Plans for modification of

historic buildings must get a certificate of no effect on features, a certificate of appropriateness, or acertificate of appropriateness on the ground of insufficient return. All are judicially reviewable.Development rights for historic parcels may be transferred to nearby parcels. Penn Central put twoplans for a 50 story tower through the first two review processes and were denied. They did not seekjudicial review. The plans would have made millions per year.

Issue: Is NYC’s regulation a judicial taking that requires just compensation? If so, is the transferability ofdevelopment rights enough to constitute just compensation?

Analysis: Regulations are judged largely on the particular circumstances of the case. The Commission did notcompletely restrict the use of the air space above the station; it merely rejected two proposed uses.The station may still be used as it was originally. Takings law doesn’t divide a parcel up into discreetsegments to see which sections have been completely taken. Property is looked at as a whole.The court will consider several factors when determining whether a taking has occurred: theeconomic impact of the regulation on the claimant, the extent to which the regulation has interferedwith distinct investment-backed expectations and the character of the governmental action.

Concl: NY historic landmarks law did not create a regulatory taking of Grand Central Station.

Property 3

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