PROPERTY OUTLINE

BY JOSH AGEN, CHRISTOPHER CARLISLE, AND YASSER MUSEITIF

(Consisting in a Rough Overview of Property by Jesse Dukeminier and James E.
Krier, as Covered in Professor Dagan’s Class, and as Supplemented by the Memory
of Mr. Agen, the Inspiration of Mr. Museitif, and the Interpretation of Mr. Carlisle)

Chapter 1: First Possession

The Principle of First-in-Time

Labor theory (Locke)

Pierson v. Post
Majority: In wild animals, at least mortal wounding is required for possession
Dissent: (a) the trade practices of hunters should govern (b) possession should be based
on reasonable certainty of capture

Ghen v. Rich
Where the externalities of a decision do not affect people outside the industry, custom is
an appropriate standard of property rights (parties’ expectation).

Keeble v. Hickeringill
Even when a competitor might legitimately deprive a constructive owner of possession, a
malicious interferer may not (Duck Decoy Case).

First-in-Time-First-in-Right encourages exploitation of natural resources

Natural Resources:

Demsetz: Toward a Theory of Property Rights

Private property rights increase efficiency by internalizing externalities:
The inherent limitation on private property is transaction costs.
Therefore, private property originates when the increase in efficiency exceeds the
transaction costs of instituting private property, i.e. when
a) the benefits of efficiency increase (beaver example), or
b) the transaction costs decrease (barbed wire example).

Acquisition by Creation

Cheny Brothers v. Doris Silk

Giving intellectual property rights does more than give a chattel to a party, because the
usefulness intellectual property is not limited. Therefore, granting intellectual property
rights diminishes the overall usefulness of a resource, and can only be done by the
legislature.
 International News Services v. Associated Press
Holding limited to its facts by Cheny.

Moore v. Regents of the University of California

The Right to Exclude

Jacque v. Steenberg Homes

There are punitive damages for trespass, even without actual damages. State has policy
in favor of enforcing right to exclude, perhaps because it increases certainty and
efficiency. (Mobile Home Company Case).

State v. Shack
Either: The policies of the state may override individual property rights,
Or: A property owner may not invite persons onto his property and deny them necessary
services.

Chapter 2: Subsequent Possession

Armory v. Delamerie
Diamond Ring Case. Finder has property right against everyone but the true owner.

Baliment: A possessor, whether true or wrongful, has a right of recovery against all
subsequent possessors except the true owner. (Courts sometimes prefer an honest later
possessor to a dishonest prior possessor, however.) In baliment, the true owner has no
cause of action against last possessor after the bailee has already won an action of
replevin (cheapest cost avoider).

Finders

Hannah v. Peel
Constructive possession of found chattels is limited to cases where the owner of the locus
has actual control over the locus, as by being in actual possession. (Owner never
occupied house where brooch was found.)

McAvoy v. Medina
Owner of store is entitled to mislaid (as opposed to lost) property.

Treasure Trove: In U.S., money, gold, silver and sometimes other valuables buried
underground, and money hidden above ground: generally awarded to finder.

Marine salvage is generally subject to law of finders’ fee.

Adverse Possession

Ballentine
Adverse possession encourages (a) efficiency of land use and (b) eliminates transaction
costs associated with title.

Holmes
Adverse possession is reasonable because long possession makes property part of oneself,
in some way.

Van Valkenbergh v, Lutz

Adverse possession requires that the adverse possessor use the property in roughly the
same manner as a true owner (e.g., by enclosing, cultivating or improving).

Elements of adverse possession:

Actual entry giving exclusive possession, which is
Open and notorious, and which is
Adverse and under claim of right,
Continuous for the statutory period

Manillo v. Gorski
Overstepping the bounds of one’s property is generally not “open and notorious,” but if
done and relied on in good faith, may require equitable forced transfer.

Adverse Possession of Chattels

O’Keefe v. Snyder
Adverse possession of chattels has problem with respect to openness and notoriety.
Adverse possession will begin when the true owner should reasonably know of the
adverse possessor’s claim, by the use of measures to make theft known.

Chapter 3: Possessory Estates in Land

Magic words creating freehold estates:

Fee Simple Fee Tail Life Estate

To X and his heirs To X and the heirs of To X for life
his body

Fee Tail interest as construed by modern jurisdictions

To A and the heirs of his body, remainder to B, creates:
1. Life estate in A followed by a fee simple in his issue (minority)
2. Fee simple in A
3. Fee simple with a gift over to B if A dies without issue
4. Fee Tail (in states which have not abolished it), which is subject to
disentailment.
 White v. Brown (crotchety old lady case)
Presumption against intestacy.
Presumption in favor of fee simple.
No restraints on alienability of fee simple.

Baker v. Weedon
If equitable intervention is necessary to further the interest of all parties, a court may
force sale of future interests for the benefit of life tenants.

Defeasible estates
determinable
subject to condition subsequent
subject to executory limitation

Marenholz v. County Board of School Trustees

Some courts hold right of entry and possibility of reverter to be inalienable
Some courts hold that a form of conveyance may be interpreted to convey an interest
outside its usual meaning if required by the grantor’s “meta-intent”

Mountain Brow Lodge v. Toscano

Absolute restraints on alienability are void (if repugnant to the estate conveyed).
Restrictions on land use are valid.
Dissent: Restrictions on land use may be de facto restrictions on alienability.

Defeasible life estates:

Restraints on marriage are void if intended as a punitive measure, but valid if intended to
support grantee until marriage (rights of entry generally punish, possibilities of reverter
usually support).

Chapter 4: Future Interests

Future interests give rise to actual legal rights in the holder

In Grantor

Reversion:
The interest created in a grantor when he conveys an estate of lesser quantum than he
holds.

Possibility of reverter:
The interest created in the grantor when he conveys a defeasible estate of the same
quantum as he holds.

Right of entry:
Interest remaining in the grantor when he conveys an estate but retains the right to enter
and retake.

In Grantee

Remainder:
Interest in a grantee which is capable of becoming possessory upon the termination of the
prior estate.
Vested remainders: remainders which
a) are created in definite people, and
b) are certain of becoming possessory upon termination of the preceding estate.

Executory interests:
Interest in grantee which terminates the preceeding estate, rather than waiting patiently
for it to end.
Springing executory interests divest grantors.
Shifting executory interests divest grantees.

Trusts:
Grantor conveys to a trustee in fee simple for the benefit of a grantee. Beneficiary takes
ony an executory interest. Unreachable by creditors.

Rules furthering marketability

Rule against perpetuities:

“No contingent future interest in a grantee is valid unless it must vest, if at all, within 21
years after some life in being at the creation of the interest.”

Executory interests in grantees are subject to RAP.

Chapter 5: Concurrent Interests

1. Tenancy in common: Separate but undivided interests in same property

2. Joint tenancy: Right of survivorship

3. Tenancy by the entirety: Requires the unity of marriage

Unities for joint tenancy:

Time
Title
Possession
Interest

Joint tenancy has the benefit of avoiding probate, by the right of survivorship.
 Riddle v. Harmon
There is no need for a straw man in order to sever a joint tenancy.

Harms v. Sprague
Under lein theory of mortgage, right of survivorship prevents a mortgage from continuing
to encumber an estate after the death of the party who took the mortgage.

Relations among concurrent owners

Delfino v. Valencis
Courts generally prefer partition in kind to partition by sale; partition by sale requires
showing of (a) impracticability of partition in kind, and (b) benefit to both parties
(Garbage dump case).

Spiller v. Mackereth
Co-tenants may not require rents from their co-tenants, unless they have been “ousted”,
or prevented from using the premises.

Swartzbaugh v. Sampson
Co-tenants do not have the right to invalidate leases taken by their co-tenants. Co-tenants
must pay their co-tenants a pro rata share of any rents collected.

Co-tenants are generally liable for their share of necessary expenses, such as property tax,
but not for unnecessary expenses, such as repairs.

Marital property

Sawada v. Endo
Marital property jurisdictions:
I. Husband has sole governance, wife has only right of survivorship
II. Either spouse has independent governance
III. Both spouses must act together in any governance
IV. Either spouse may convey his/her contingent right of survivorship, but not
the profits or use during marriage.
Hawaii adopts Group III.

Termination by divorce:
Equitable division of property is customary in most states.
Alimony is no longer for life.
Degrees and increased earning capacity as marital property:
Colorado: no compensation In Re Marriage of Grahm
New Jersy: restitutionary compensation Mahoney v. Mahoney
New York: spouse acquires portion of future earnings Elkus v. Elkus

Community property:
 Occurs only in marriage
Is not subject to inter-vivos conveyance by one spouse
Gives the right to convey ½ interest at death

In the case of intestacy, some states give property to surviving spouse, others give it to
heirs.

Chapter 6: Leasehold Estates

1. Term of years
2. Periodic tenancy
3. Tenancy at will

Periodic tenancy:
Renews automatically unless either party gives notice. Common law limits period of
notice to 1 year.

Tenancy at will:

Garner v. Garrish
It is possible to create a tenancy at will terminable only at the will of the lessee, but not of
the lessor.

Restatement of Property: Tenancy at will may be created which gives either party sole
power of termination.

Common law: Tenancy at will must be terminable at the will of both parties.

The lease

Leases for 1 year or more require written contract (statute of frauds).

Unlawful discrimination

Fair Housing Act: No discrimination based on race, gender or national origin (later
amendment, on physical handicap or familial status).

§3603: FHA does not apply, except in the prohibitions on advertising, to single-family
homes owned by landlords who own three or less houses, and to multiple unit dwellings
of four units or less where the owner lives in one of the units.

§3604: Prohibits refusal to sell, discrimination in terms, and discrimination in

advertising. Handicapped persons are also awarded a right to “reasonable
accommodations.”
Civil Rights Act: not subject to any of the limitations of the FHA, but applies only to
race.

Soules v. U.S. Department of Housing

Plaintiff in FHA case need only show discriminatory effect to make a prima facie case of
housing discrimination. Defendant than must rebut with a showing of non-discriminatory
reason.

Duties of tenants

Courts generally try to discourage self-help against defaulting tenants.

Duties of Landlords

Covenant of quiet enjoyment:

Tenant’s remedy for landlord’s interference, by act or omission, with a tenant’s use or
enjoyment of things contracted for in the lease. If interference is substantial enough to
amount to eviction, it will void the tenant’s duties under the lease, if the tenant vacates
the premises in consequence.

Illegal lease:
Contractual remedy for housing which does not comply with applicable housing codes.

Implied warranty of habitability:

Judicially created quasi-contractual doctrine whereby the court imposes a standard of
habitability on leased residential premises, and awards damages to a tenant who leases
“uninhabitable” premises, without the requirement that the tenant vacate.

Damages
Hilder v. St. Peter: damages measured by taking the terms of the lease and
diminishing rent in light of the fact that the premises are deemed to be
“uninhabitable”.
Kline v. Burns: damages determined by subtracting the fair market value of
premises in their current state from the rent actually contracted for (prevents
gouging).

Chapter 10: Servitudes

Easements

Created by:
1. Express grant (Willard v. First Church of Christ, Scientist)
2. Estoppel (Holbrook v. Taylor)
3. Implication (use) (Van Sandt v. Royster)
4. Necessity (Othen v. Rozier)
 5. Prescription (like adverse possession) (Othen v. Rozier)

All easements are coextensive with the conditions which occasion them (Chris’s
editorializing).

Fiction of the lost grant.

Public easement

Public easements are, like prescriptive easements, created by long use by the public.

Prescriptive (few courts)

Public use

Customary use

Public trust (Matthews v. Bay Head Improvement Association)

Scope of easements:

Brown v. Voss
1. Intent of the parties governs interpretation of easement by express grant
2. Misuse of easement constitutes trespass
3. Courts have broad discretion in fashioning remedies

Owner of servient estate may make reasonable modifications to easement, but not alter
location.

Uses of a prescriptive easement (as opposed to other types of easement) may not be
modified.

Termination of an easement:
Presault v. U.S.
When a party ceases to use and exhibits intent not to use an easement for the purposes for
which it was granted, then the easement is deemed to be abandoned.

Covenants running with the land

Shelly v. Kramer
Enforcement of a covenant constitutes state action for purposes of the 14th Amendment.

Western Land Co. v. Truskolaski

As long as the original purpose of a covenant may still be effected, it is enforceable.

Rick v. West
Restatement Third of Property: When the purpose of a covenant is made impossible, as a
practical matter, to accomplish, a court may alter a covenant to permit the use to be
accomplished.

Massachusetts rule: When the circumstances surrounding a covenant change, the courts
must enforce it by damages rather than injunction.

Common interest communities

Nahrstedt v. Lakeside village Condominiums

Chapter 12: Eminent Domain and Regulatory Takings

Hawaii Housing Authority v. Midkiff

Loretto v. Teleprompter Manhattan CATV Corp.
Hadacheck v. Sebastian
Pennsylvannia Coal Co. v. Mahon
Penn Central Transportation Co. v. City of New York
First English Evangelical Lutheran Church of Glendale v. County of Los Angeles
Nollan v. California Coastal Communication
Dolan v. City of Tigard
Lucas v. South Carolina Coastal Council