PROPERTY OUTLINE

2009 PROFESSOR TURNIPSEED

Part I. An Introduction to Some Fundamentals

Chapter 1: First Possession: Acquisition of Property by Discovery, Capture and Creation
1. Acquisition by Discovery
a. Johnson v. M’Intosh, 1863- CJ marshall
i. Action to quite title- aka figure out who owned the land
ii. P claims title to his land that he received from Indian chiefs in grants in two
separate years. D claimed title to land because they got it from the
government.
iii. HELD- NO, they don’t have the right to sell the land because they
themselves never actually owned the land. They can only sell the land to
the United States.
iv. MAIN PRINCIPAL- Discovery gave title to the government by whose
subject or by whose author, it was made, against all other European
governments, which title might be consummated by possession.
v. When Europeans took the land they gave the Indians only OCCUPANCY
rights. (discovery of other civilized nations) Only 1 can have absolute
property rights.
b. Discovery Doctrine-
i. Explanation of the way in which colonial powers laid claim to newly
discovered lands during the Age of Discovery. Under it, title to newly
discovered lands lay with the government whose subjects discovered new
territory.
c. Conquest- is the taking of the possession of enemy territory through force
followed by a formal annexation of the defeated territory by the conqueror.
d. Labor Theory and John Locke- says it does not matter who is there first that
rather nobody has a right but to himself, and whatever labor or work he does it
his. But once labor is done no one man can claim the land alone
i. Who is to define what productive use is?
e. Accession- When one person comes into play when one person adds to the
property to another.
i. Power Confers property
ii. Property confers power
iii. Learn it. Know it. Live it.
2. Acquisition by Capture
a. Pierson v. Post- Hunting foxes case
i. A fox is an animal, wild in nature, and a property right in such an animal is
acquired by occupancy only.
ii. Just the mere pursuit of an animal is not enough, even if the animal is
wounded in anyway. IF it is mortally wounded then it’s a different case,
then there might be the right because than the animal is unable to escape.
iii. RULE- pursuit alone is insufficient to constitute occupancy
iv. If mere sight of the animal gave possession of the animal there would be a
vast increase in the number of arguments and litigation

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 v. DISSENT- Death of the foxes is in public interest
vi. Majority used formalism to get to their holding- looking to precedent.
b. Ghen v. Rich- whaling/ common usage case
i. The person who killed it in the first place is the owner. Neither the person
who found it or the person who bought it knew who the owner was
ii. There is a common usage in Cape Cod that when a whale is killed and
anchored and left with marks of appropriation under the circumstances
described, it became the property of its captors. Customs are designed to
encourage the wealth of the people in the industry. Should a court follow
custom?
3. Luring wild animals to ones property
a. Keeble v. Hickeringill- DUCK DECOYS
i. Issue- Does that landowner have a right to attract wildfowl to his property
unimpeded by the direct interference of another aimed solely at keeping the
wildfowl away? Yes!
ii. The owner has the land has the right to use his pond for his trade of
attracting, catching and using the wildfowl. One who hinders on this is
liable. Malicious interfering with trade or business.
iii. If D had set up his own pond and LURED the ducks away then it would be
okay. Example of the school
iv. Note- here the P had possession of the ducks because they were trapped in
the decoy. Constructive possession- landowner is regarded as the prior
possessory or any wild animal on their land until they are taken off.
v. Interference with capture is ok because it promotes an incentive for both of
the schools to get better

4. Discouraging trespass
a. Prevent damages to others property
b. Encourage order
c. Encourage investment in their property
d. Safety

5. Acquisition by Creation: the assertion that if you create something – if you are the first-
that then something is yours. Based on locks labour theory. PROBLEM- your labor is
not always Just yours
a. Property in Ones Ideas and Expressions : General Principles of Intellectual
Property
b. International News Service v. Associated Press (P)- S.ct 1918
i. d contends that P has no copy write to the news because it is not within the
copyright act, also that once the news is made public the there are no
property rights. Court says, the relationship issue is not that between the
D and the public, but rather between D and P- the news is quasi property.
Because it is gathered, distributed and sold through enterprise skill, labor
and money just like any other merchandise.

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 ii. D’s taking of P’s news unreasonably interferes with P’s right to make
merchandise out of the news, interferes with Ps businesses, where P does
the labor and D reaps the benefits.
iii. If there was no right to property news then why would people be in the
business, the wouldn’t make any more.
iv. Quasi property- because once it is released to the public, it no longer
belongs to anyone
v. Trade secret- coke example- didn’t get a patent because in 20 years
everyone would be able to use it
c. Property in One’s Ideas and Expressions
d. Cheney Brothers (d) v. Doris Silk Corp-hand
i. Can P’s designs be protected only during the first season in which they are
introduced? no
ii. General Rule- in the absence of some recognized right at common law, or
under the statutes…a man’s property is limited to the chattels which
embody his invention others may imitate at their pleasure
iii. Competition will make better products and reduce the prices.
If there is no property right in the creator, no incentive to produce
iv. If there is a property right => monopoly
1. Smith v. Chanel, Inc- trademark required great expenditures of
money, effort and ability, the court found that Chanel was not
entitled to monopoly even thought it created the product. “ serves
an important public interest by offering comparable goods at lower
prices
a. Trademarks used to symbolize, identify whatever the entity
is. Usual last until it becomes generic….Kleenex, aspirin,
Xerox
2. Douglas Baird- Discusses the difference between wheat and
information. Wheat or land are tangible that one in the possession
of one person, where as with the news it would be like telling the
farmer after hes done with all his work, he has to hand it over to
someone else, who just watched him grow it.
6. Legislation? Idea behind copyrights, patents and trademarks is to grant a limited
monopoly over protected material.
a. Copyrights – protect the expression of ideas
b. Trademarks-
c. Nicholas v. Universal Pictures Corp- P was the author of a play, D made a
movie but the court found the Ds movie was too unlike the O’s play to be an
infringement, notwithstanding some details that D used the P’s work.
d. Diamond v. Chakrabarty- microbiologist who filed a patent for the invention of
a human made, genetically engineered bacterium
i. First the court looked to see is whether or not the bacterium was either a
manufacture or composition of matter.
ii. Manufacture is the production of articles for use from raw materials or
prepared, by giving to these materials new forms, qualities, properties or
combinations whether by hand, labor or machines.

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 e. White v. Samsung
i. Samsung put out a commercial that depicted a robot dressed like Vanna in
front of a wheel of fortune to suggest that their product will still be working
even when humans are no longer around.
ii. The majority opinion makes it a tort to even remind the public of a
celebrity. This raises serious first amendment issues. The DC- notes that
the commercial did not use her name, likeness, signature or voice.
iii. Balance between the owner and the public, need this to maintain a free
environment in which creative genius can flourish.
7. Property in One’s Persons
a. Moore v. Regents of the University of CA
i. P was informed later that his body was being used for research.
ii. Court Reasoning-
1. Failure for consent- when D failed to disclose the extent of the
research and commercial interest in the cells before getting consent
from P, D has invaded a legally protected patient interest.
2. Conversion: In order to establish conversion P must establish an
actual interference with his ownership right or right of possession.
Here, it is clear that P did not expect to retain possession of his
cells after their removal. Expectations! Uniqueness - So then P
must prove some ownership interest in them. The court said there
is no interest because
a. There is no reported judicial decisions supporting Moore’s
claim
b. CA statutory law drastically limits any continuing interest
of a patients excised cells
c. The subject matter of the patent is nothing like what they
took, it is a new cell line and the products from it cannot be
Moore’s property.
3. Compares to Privacy cases, in that a person has proprietary interest
in their own likeness and that unauthorized, business use of the
likeness is a tort. Court rejects this, it’s like apples and oranges,
why are we even comparing them.
iii. Should conversion be extended? No
1. We need not threaten those who are engaged in socially useful
activities that make advances in the medical field.
2. Expanding liability would seriously threaten to destroy the
economic incentive to conduct important medical research.
iv. Dissent- thinks that property is such a broad term and abstract and that it is
important that it be a protectable property right.
1. Talks about the bundle of rights-
a. Right to possess, use, exclude and dispose – just because
you might not have any of these rights, does not mean that
its not property
b. Allows the patient to say no, but does not allow the patient
to yes and that they want some of the benefits

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 c. Only the initial guy that they can sue- deep pockets
v. Some property has limitations. I.e.- you have a right to something but you
can’t see it, or give it away.
1. Renting an apt
2. Music d/led legally on itunes.
3. Babies- cant sell it but can give it away
4. Degrees- cant sell or give away
5. Political offices
6. Vote
7. Trustees
vi. Accession- if you add something to something to come up with something
better, should you get the value of that?
1. Might be able to get some damages, but only to the value of the
cells when they came out of the body, not after
vii. Right to Include- right to let others have or enjoy ones assets
1. “you may come in” “ you may have this, if you pay me”
viii. Right to exclude- flip side- often said to be #1 stick in the bundle
1. “you may not come in “ “ you may not have this unless you pay
me”
ix. Key- each is necessary for transferability
1. Exercise of each is backed up by the government
b. Jacque v. Steenberg Homes, Inc
i. D had a mobile home he had to deliver and the quickest way was over P’s
property
ii. Looks at the individual land owner’s interest in protecting his or her land
from trespass. Held that right is hollow if the legal system provides
insufficient means to protect it.
iii. Note- Society has an interest in punishing and deterring intentional
trespassers beyond that of protecting the interest of the individual land
owners
c. State v. Shack
i. D’s entered upon private property to aid migrant farm workers employed
and housed there.
ii. Held, the ownership of real property does not include the right to bar
access to governmental services available to migrant workers and hence
there was no trespass within the meaning of the peal statute. Necessity,
private or public, may therefore justify entry upon the lands of another.

Chapter 2: Subsequent Possession: Acquisition of Property by Find, Adverse Possession

and Gift
1. Acquisition by Find
a. When an owner loses their property, according to the law they are still the owner.
Their title to the lost property is superior to that of everyone including the finder.
General Rule is that the finder of the lost property has title to the lost property
superior to all by the true owner.

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b. Armory c. Delamirie –Sweepers boy
i. The finders interest is good as against everyone except for the true owner
ii. P sued for TROVER- is a common law action for money damages
resulting from the D’s conversion to his own use of chattel owned or
possessed by the P. Here, the D waives his right to obtain the return of the
chattel and insists that the D be forced to buy the chattel. Replevin- would
be the return of the good.
c. Class notes:
i. Damages? Fair market value- (1- ( the probability true owner ))
ii. Why do we protect ownership?
1. Encourages productive use of resources
a. If someone can take away your stuff then you probably
wouldn’t want to invest much in your belongings
2. Investment
3. Law is usually cheaper way to protect ownership than self- help
iii. Reward honest finders, and try to maximize the odds of getting the property
back to the true owner.
iv. What is the true owner appeared sat the goldsmiths shop and demanded
return of the jewel? (after the finder already won j)- In theory you should
go after the finder, but problems …
1. They might actually want the item itself back
2. Damaged award, discounted
3. Hard to find the sweep
4. Even if they find the sweep, the money is gone
v. True owner v. goldsmith?
1. Goldsmith already paid once
a. Subrogation
d. Hanna v. Peel- soldier
i. Bridges v. Hawkensworth- a small parcel was found on the floor
(contained bank notes) of a shop in that portion of the shop that frequented
by the public, the issue was whether the finder or the shopkeeper was
entitled to it. P asked D to look after then incase the real owner shows up, 3
years later no one claimed the notes. The court held here that the parcel was
never in the custody of the shop owner, or within the protection of his
house, and that the shop owner had no duty other than to notify the public.
Therefore there are not circumstances warranting an exception to the rule
that the finder has a superior claim over anyone by the true owner.
ii. There wouldn’t even be an issue if it was found outside the shop
iii. South Sattafordshire Water Co. v. Sharman- workers, under the
landowner orders, were cleaning out a pool of water when they discovered
2 rings, The Court said that if a servant or an agent finds something, he
finds it for their mater. So the finder here, an employee, found the rings for
the benefit of his employer, the landowner.
1. Here the rings were embedded not sitting on top
iv. Elwes v. Brigg Gas Co. court held that the leassor owned the boat and that
it made no difference that he did not know it existed prior to discovery.

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 1. Embedded
2. Important that its so old
e. From these cases our court hold that a person possesses everything attached to or
under its own land, and that a person does not necessarily possess everything that
is unattached on the surface of the land.
f. HERE, the brooch was and not attached to D’s land. D never physically possessed
the premises therefore it was never his. He did now know about it until P found it,
therefore P prevails.
g. Polices-
i. Returning item to the true owner
ii. Carrying out expectations of parties- probably highest when you are in
your own private home and occupied.
1. What about private and unoccupied?
2. What about business not open to the public-
3. Different from a business that is open to the public
iii. Rewarding honesty
h. Armory – finder v. bailee case, distinguish armory from whatever facts you are
given on the exam. (here we have finder v. locus owner)
i. Locus owner- rights? Right of trespass, privacy, 4th amendment, mineral
rights
2. McAvoy v. Medina-
a. D, owned a barber shop,
b. There is a difference between property that is lost and property that was
voluntarily placed on the table and accidentally left there. The d had the duty to
use reasonable care in the safekeeping of the property.
c. Generally the place where it is found does not make much of a difference
d. In this case the property was voluntarily placed in the shop by its owner, by merely
finding it P did not acquire the right to take it from the shop.
e. Abandoned Property? Belongs to the finder generally – here the concern of finders
(n to protect the true owner) is lost because the owner has renounced any claim

f. Treasure trove-was any money or coin, gold, silver plate or bullion hidden in the
earth.
i. In re seizure- $ in gas tank= because it was abandoned the money belonged
to the buyer as the first person to find it, the mechanic was working for the
buyer
ii. Barry Bonds- first it was possessed by the MLB, then abandoned when hit
into the air, then their first person who posses it is now the owner. P was
the first to catch the ball (had a pre-possessory interest) but then was
attacked by other members of the crowed, therefore releasing the ball and
D picked it up. D did not partake in the attack. Both side of the case hav
equally relevant arguments so the court applied equitable decision- to sell
the ball to a third party and then split the profit.
iii. Initial Custody- who should get it rules? Usually the locus
1. Reasonable value of time to get it.
2. Something extremely old or of high value-

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 3. Something of low value
3. Acquisition by Adverse Possession
a. The theory and elements of Adverse Possession
i. Actual Entry and Possession- the possession must be exclusive and of such
a nature that the community would think of the adverse possessor as the
owner
ii. Powello- says adverse possession functions as a means of transferring
ownership….bars actions by the erstwhile owner but also vests a new title,
created by operation of the law.
b. Oliver Wendell homes, laws of prescription- if a man neglects to enforce his own
rights, he cannot complain if, after a while, the law follows his example
c. Van Valkenburgh v. Lutz
i. For adverse possession it must be shown by clear and convincing proof that
for a liated 15 years there was an “actual “ occupation under a claim for
title, for it is only the premise so actually occupied and no others that are
deemed to have been adversely.
ii. Elements of proof
1. Are protected by a substantial enclosure
a. Court says there is
2. Usually cultivated or improved
a. Proof shows that there was no cultivation
3. In some states they have to pay a tax on the land in order to prevail
4. Color of title- refers to a claim founded on a written instrument,
like a deed or a will
5. Claim of title is simply one way of expression the requirement of
hostility or claim of right on the part of an adverse possessor
d. Pros-
i. Maximizes social utility of real property
ii. Ancient evidence- helps figure out who actually owns the land (cost of
figuring out who owns in increases over time)
iii. Expectations
iv. Good to every once and a while quite title –
v. Earning theory – we should reward people that are being product with the
land
vi. Sleeping theory- punish people who sleep on their rights
e. Cons-
i. Moral issues- isn’t this trespassing
ii. Unfair to the true owner (first in time)
iii. Undermines the title system
iv. Discourages people from buying the land
v. Undermines right to exclude
vi. * a tax foreclosure sale- usually restarts the clock on adverse possession-

f. Requirements for adverse possession

i. Entry- actual physical occupation of the land
1. Serves purpose of starting the statute of limitations clock

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 2. Natural use
ii. Open and notorious – notice to the true owner – to let them know
something might be happening to their land
1. Both relate to the earning and sleeping theory
iii. Adverse claim of right-
1. Three different ways states of gone about defining this
a. Irreverent state of mind
i. Most go with this one
ii. England
b. I thought I owned it
i. Garage
c. I knew I didn’t own it but I wanted to make it mine
iv. Continuous-
1. Requires that the actual owner use it as an actual owner would
make of it, the typical actually owner
a. i.e example of living in Nantucket- might only use it in the
summertime
g. The Mechanics of Adverse Possession
h. Mannillo V. Gorski- 15 inches
i. Two opposing views:
1. Maine doctrine- would reward the possessory who enters
another’s land with a premeditated and predesigned hostility.
a. Encourages the knowing wrong doer
2. Connecticut Doctrine- makes in inquiry into the recess of the
adverse claimants mind. – says the very nature of the act is an
assertion of his own title and denial of the title of all others.
ii. Held- no matter if the adverse possessor was mistaken or not the result is
the same.
iii. BUT the element of open notorious here was not met because of the minor
encroachment. It is only when the true owner has actual knowledge of the
intrusion that it can be said the possession was open and notorious.
iv. Unfair? Might be unfair to the adverse possessor who under an innocent
and mistaken belief of title has undertaken an extensive improvement
which encroaches on an adjoining party- might the P be forced to convey
the land upon payment of the fair value?
v. Almost everyone now has title insurance, not only for adverse possessors
but also if someone makes a mistake in tracing possessors
vi. Doctrines-
1. Doctrine of agreed boundaries- provides that If there is uncertainty
between the neighbors as to the true boundary line, on oral
agreement to settle the matter is enforceable if the neighbors
subsequently accept the line for a long period of time
2. Doctrine of acquiescence- provides that long acquiesce is evidence
of an agreement between the parties fixing the boundary line
3. Doctrine of Estoppel- when one of the neighbors makes
representations about the location of the common boundary and the

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 other changes their position in reliance on the representations or
conduct
i. Howard v. Kunto-
i. The fact that the land was used only in the summer months makes no
difference in establishing adverse possession. Continuous in the sense that
a true owner would.
ii. This case is different then most for adverse possession because it does not
claim more than the title allows for but from a completely different area of
land.
iii. Court held that the privity requirement if no more than a judicial
recognition of the need for some reasonable connection between successive
occupants of real property so as to raise their claim of right above the statue
of the wrongdoer. Court allowed for prior estates could be tacked onto the
present defendants time period to meet the statutory time period because of
the sufficient connection between the occupants.
iv. Tacking- of adverse possessors- adding those two times together, which
would be longer than the statutory limits
v. Tacking of owners- entire period against 1 owner?
vi. Here they were allowed to tack on the previous owners time to theirs
because they are in privity- “voluntary transfer of either an estate or
possession from once occupant to another”
vii. Disability- take longer of the either the normal SOL or end of disability
plus 10 years
1. Can’t tack disabilities
2. Disabilities must exist at the time the adverse possessor enters
j. Adverse Possession of Chattels
i. O’Keeffe v. Snyder-
ii. Discovery rule- holds that the SOL doesn’t begin to run until the injured
party discovers (or by reasonable diligence could have discovered) the facts
that form the basis of the cause of action. The purpose of this equitable
principle is to mitigate the harsh results of the SOL
iii. A theft acquires no title and cannot transfer good title to others regardless
of their good faith or ignorance of the theft. Hence, if the pics were in fact
stolen D has no title to them
1. To acquire chattels by adverse possession, the possession must be
hostile, actual, visible, exclusive and continuous. Here it is very
difficult to determine is something it noticeable.
iv. Trial court should look at:
1. Whether O’k used due diligence to recover the paintings at the
time of the alleged there and thereafter
2. Whether at the time of the alleged theft there was an effective
method, other than talked to her colleagues for her to alert the art
world
3. Whether registering the paintings would put reasonably prudent
purchaser of art on constructive notice that someone other than
the possessor was the true owner

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 k. Burden for the discovery rule is on the owner to show due diligence
l. Cause of action accrues at the time theft, absent fraud or concealment, unless
owner is entitled to benefit of the discovery rule
i. Goes to the conduct of the owner, not possessor, is controlling
ii. First knew- or should have known through due diligence
m. States- when sol accrues
i. Time of theft
ii. First knew
iii. Should have known
n. Court allows tacking of periods of possession
o. Voidable title- if you title unless someone with a better title comes along – theft
can have this as long as the true owner does not come back

4. Acquisition by Gift
a. Inter Vivos- these are gifts made during the grantors life when his death is not
imminent. Once made they are irrevocable(v. testamentary).
b. Causa Mortris- gifts made in contemplation of imminent death- this permits death
bed conveyances outside of the will. If the would be donor survives, the gift is
automatically revoked
c. Need intent and delivery
i. Gift is enforceable. A promise to make a gift, unless there is reliance that
leads to promissory estoppels then it is not enforceable.
d. Newman v. Bost-
i. Inside the bureau were life insurance papers which the d in turn sold
ii. The issue is if constructive delivery of a gift is sufficient if actual delivery
is not possible? Yes- Reversed.
iii. Since actual delivery was possible, constructive delivery of the insurance
policy is insufficient and therefore the policy belongs to the estate.
iv. As for the furniture to which P had the keys, constructive delivery is
sufficient, due to their size and weight, manual delivery is not possible.
v. Constructive- typical- key, something that would allow you access to an
object
vi. Symbolic- say for not real property- written a note
vii. Safe- do you get what is in side? Well what is the point of the safe
e. Gruen v. Gruen- Court of Appeals, NY 1986
i. Court found that an inter vivos gift is different from a testamentary
disposition, which is an intent to make a transfer only upon the donors
death. The test here is whether the donor intended the gift to transfer a
present interest or intended the gift to have no effect until after the donor
died.
ii. Evidence shows that the father intended to give the painting to P while
retaining his life estate.
iii. Delivery is satisfied by constructive delivery.
iv. Acceptance is shown by the presumption that a recipient accepts a gift of
value

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 v. gave his son a remainder interest, which was irrevocable. Meaning that he
has title to it but not possession until after death.
f. Three elements of a gift
i. Intent
ii. Delivery-the writing was a symbolic delivery
iii. Acceptance
5. Complete ownership in property- all the sticks in the bundle (well maybe not all but as
many as you can get)

LIFE ESTATE- Say Turnipseed has a life estate and sells it to John, John dies before
Turnipseed, estate goes to Johns heirs for the remainder of Turnipseed’s life
1. Waste- the law of waste
a. Used when two or more people have rights to property a t the same time. The idea
is that A should not be able to use the property in a manner that unreasonably
interferes with the expectations of B.
i. Designed to avoid wasting the land- goal is to maximize the use of the
property
b. Affirmative waste- arising from injurious acts that have more than trivial effects
i. Ex. Of minerals, its okay too keep extracting minerals even if it is harmful
IF they were begin extracted when the future interest were created.
c. Permissive Waste- failure to take reasonable care of the property
2. Wisdom of creating a legal life estate- Some problems
a. Sale
b. Lease
c. Mortgage
d. Waste
e. Insurance
f. The person creating a legal life estate can draft the instrument so as to give the life
tenant a power to sell or mortgage a fee simple or to lease beyond the duration of
the estate
3. Legal Life estates of personality
a. Unlike real land estates of personality are easily sold
4. Protecting the life tenant by creating a trust-
a. More flexible that a legal life estate
b. Usually give the trustee power to sell, lease, mortgage, remove minerals, or do
whatever a prudent persons would invest the proceeds….life tenant can be made a
trustee or the court can

Chapter 5: Co- ownership and Marital Interests

1. Co-ownership and Marital Interests:
a. Tenants in common- have separate but undivided interest in the property – the
interest of each is descendible and may be conveyed by deed or will. There are
NO survivorship rights between the tenants.
i. Can you force to sell your portion of a TIC? Yes

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b. Joint Tenants- have the right to survivorship; they are regarded as one single
owner. In theory then each owns the whole undivided property; so when one joint
ternate dies nothing passes to the surviving joint tenant.
i. A and B own property. A dies leaving property to H. Who owns it now?
Just B owns all. Cannot give away your interest in a joint tendency.
ii. There are 4 unities that are essential to a joint tenancy
1. Time
2. Title
3. Interest
4. Possession
c. Tenancy by entirety- can only be created by husband and wife. Neither husband
or wide acting alone has the right to judicial partition of property Can’t
unilaterally severe a tenancy by entirety – creditor can’t come after if it’s just of
one of the parties – so if you’re in a juris where you can put intangible property in
a tenancy by entirety, its good protection from creditors.
i. Have to be married at the time you create a tenancy by entirety
d. You can combine a JT with a JTI
e. Avoidance of probate – probate is the judicial supervision of the administration of
the deceden’ts property that passes to others at the decedents death. Probate is
costly – a joint tenancy avoids probate because in interests passes on the joint
tenants death
f. A joint tenant cannot pass her interest in a joint tenancy by will
g. Unequal shares- this requirement no longer exists
h. Riddle v. Harmon-
i. Can a joint tenant terminate a joint tenancy by granting her one-half
undivided interest to herself. YES! Reversed.
ii. A joint tenancy may be converted to a tenancy in common by destruction
of one of the 4 unities. Each joint tenant clearly has the right to destroy
the joint tenancy without the consent or knowledge of the other joint
tenant by conveying her separate estate by gift of otherwise.
iii. At common law, the only way for a person to created a joint tenancy with
another person was to use a “straw man” who would received the
property, then reconvey it to the original owner and other joint tenants.
iv. Clark v. Carter- found the straw man to be indispensable- reasoned the
two to transfer notion.
v. Modern objections? To single party severance
1. Without notifying other JT (actual notice)
2. Without notifying any third party (fraud issues)
3. w/e recordation
i. Harms v. Sprague-
i. Is joint tenancy severed if one joint tenant mortgages his interest in the
joint property? No
ii. Previous courts have held that a judgment lien on one joint tenants
interest does not sever the joint tenancy unless a deed is conveyed and the
redemption period has passed.

13
 iii. If mortgage is merely a lien and not a conveyance of title, the execution of
a mortgage by a joint tenant would not destroy the unity of title.
iv. Because the JT survived the execution of the mortgage, P became the sole
owner of the property upon his brother’s death. The mortgage does not
survive. P takes the property through the conveyance that created the joint
tenancy, not his brothers successor. Mortgage was therefore extinguished
at death.
v. Theory of mortgage- if title theory then person giving the mortgage is
actually deemed to received title- then it would break the joint tenancy.

j. Joint Tenancy Bank Accounts

i. Agent /convince account- during life- both of the people have access to the
money- but the other person can only write checks for the benefit for the
person who put in the money to begin with
1. at death- there are no survivorship rights
ii. True joint tenancy w/ right of survivorship- both can write checks- and
there is survivorship accounts
iii. Payable on death/transferable on death- not access during life, only at
death
iv. Problem 3- A and B have a joint savings accounts----how much of the
account can A’s creditor reach?
1. Creditors can reach it only in portion to the debtors ownership of
the funds (what % each person put in)
2. Parol Evidence is admissible to show contribution and whether or
not one person mean to make a gift
3. Burden is on the debtors to show what their interests are
4. Majority rule- can be 100%
k. Relations Among Concurrent Owners

i. Each tenant is entitled to possession of the entire parcel of land yet he

cannot exercise that possession without coming into conflict with the
reciprocal right of his cotenant
ii. Partition – the privilege of each co-owner to transform concurrent estates
into estates held in severalty
iii. Can be achieved through voluntary agreement
iv. Delfino v. Vealencis
1. Partition of sale should be allowed when…
2. The physical attributes of the land are such a that a partition of the
land are such that a partition in kind is impracticable or inequitable
3. The interests of the owners would better be promoted by a partition
by sale
v. Owelty- nuisance damages
vi. Court must consider the interests of all of the tenants in common t and not
just the economic gain of one of the tenants
vii. These days most courts would use a partition by sale

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 viii. Problem 6- Chair- ending up doing a temporal spilt

ix. Sharing the Benefits and Burdens of Co-ownership

x. Spiller v. Mackereth
1. General rule- in the absence of an agreement to pay rent or an
ouster of a cotenant, a cotenant in possession is not liable to his
cotenants for the value of his use and occupation of the property.
a. There has to be evidence which established an ouster
before spiller is required to pay
b. Ouster
i. Used in co-tenancy cases to describe two distinct
fact situations
1. The beginning of the running of the SOL for
adverse possession
2. The liability of an occupying cotenant for
rent to other cotenants
2. RULE: Tenants in common are seized per my et per tout. Each has
an equal right to occupy; and unless the one in actual possession
denies the other the right to enter, or agrees to pay rent, nothing
can be claimed for such occupation
3. SIMPLY- before an occupying cotenant can be liable for rent in
AL, he must have denied his cotenant the right to enter.
l. Swartzbaugh v. Sampson- Walnut farm/ boxing pavilion
a. An estate in joint tenancy can be severed by destroying one
or more of the necessary unities, either by operation of law,
death or by voluntary or certain involuntary acts of one
joint tenant without the consent of the other. One of the
unities is possession.
ii. During the lives of co-tenate, the rules regulating the transfer of their
interests are substantially the same whether they are tenants in common or
joining tenants. Neither of the two can do any act to the prejudice of his
co-tenants in their estate.
iii. Generally, one co-tenant cannot, without the consent of his co-tenant, bind
of prejudicially affect the rights of the other
1. Exception- allows one joint tenant to lease of the joint property
without the consent of the co-tenant and put the lease in
possession. Theory behind this is that the one joint tenant is
entitled to possession of the entire property and the lease merely
gives to the lessee a right that he, the lessor, had been enjoying
already.
2. But the lessor/joint tenant cannot convey what he does not have.
The nonlessor co-tenant can recover from the lessor-tenant a pro
rata share of the rents if the lessee refuses to all her to use of her
share of the estate
3. Court concludes that the lease here is valid.
m. Other remedies available to Mrs. S

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 i. Partition
ii. Ouster
1. Majority would say you have to get ousted before you can get fair
value of rental payments
2. She could get
a. FMV of the lease payments for the time that she was
ejected then she has the option to..
b. An injuction to force Sampson to enforce the fact that she
has the right to enter the entire land
n. Rents and Profits
i. In all states a cotenant who collects from third parties rents and other
payments arising from the co-owned land must account to co-tenants for
the amounts received
ii. Absent ouster the accounting is usually based on receipts not fair market
value
o. Repairs and improvement- most jurisdiction a cotenant making or paying for
them has no affirmative right to contribution from the other cotenants in the
absence of an agreement.
i. Improvements:
1. General rule is that the interest of the improve are to be protected if
this can be accomplished without detriment to the interest of the
other cotenants
2. Thus, is property is physically divided pursuant to a partition the
improved portion is awarded to the improving cotenant. If it is not
physically possible then the property is sold and the proceeds are
distributed as to award the improver
3. In a partition they would get the fmv of the improvement
4. Is physical partition is possible by would jeopardize the interest of
the improver by awarding the improvements to the cotenants then
the court will order payments, oweltys, from noncontributing
cotenants to the improver in an same amount equal to the formers
shared of the enhanced value of the property resulting from the
improvements
5. “downside risk” when improvements cost more than the increased
sale value…..vice versa is “upside” total increase in value is more
than the costs of the improvement.
p. FMV with improvements minus FMV without improvements= FMV
improvement
q. Rent?? Take all the rental payments, bring them all back to present value, then
would have to turn that in to mr.s
2. Marital Interests
a. The Common Law Marital Property System
b. Anything on the federal level for marriage has to be between a male and female.
c. Community – more west side of the country-any property that flows in DURING
the marriage, excluding gifts and inheritances, is community property. Property

16
 they had coming into the marriage then it remains your separate property but if
they comingle it then its community. If you keep it separate its still yours.
i. What if you move? There might still be some property that will still be
considered community property
ii. Community property-At death the survivor is entitled to half of it and cane
give half to whom they choice
1. During life, signature of both spouses to do anything with
community property
d. Separate property- (mostly every state east of the Mississippi) based on the
concept that if it’s in your name, the title, then it’s yours at death to do with
whatever you like.
3. Sawada v. Endo
a. Issues is whether the interest of one spouse in real property, held in tenancy by the
entireties, is subject to levy and execution by his or her individual creditors.
i. Interprets the Married Womans act as a goal to abrogate the husband
common law dominance over the martial estate and to place his wife at an
equal
ii. In tenancy by entirety, both spouses are seised of the whole estate.
iii. Neither husband or wife has a separate divisible interest in the property
held by the entirety that can be conveyed or reached by execution.
iv. Not unfair to the creditors because they presumably had notice of the
characteristics of the estate which limited his right to reach the property.
v. Held- that the very nature of an estate by the entirety is “ a unilaterally
indestructible right of survivorship, an inability of one spouse to alienate
his interest, and, importantly for this case, a broad immunity from claims
of separate creditors remain among its vital incidents”- so no, not in
fraud, not subject to the claims of the creditors from one of the spouses
during their joint lives.
vi. Dissent- thinks a better interpretation of the act is that since at common
law the act could alienate the husband right to survivorship, this act would
enable the wife to do likewise and therefore the J f the creditors would be
able to levy a and execute upon their separate rights of survivorship.
vii. Termination of Marriage by Divorce
1. Alimony- money paid by a husband to wife as a continuation of
support.
2. At first you could only get a divorce for some extreme such as
cruelty or adultery. Now states have enacted No Fault Divorce.
3. Rule of equitable distribution- property is divided by the court, in
its discretion, on equitable principles
b. “marital property”- some define it as to include all property acquired during
marriage by whatever means (gifts, earnings, inheritances) other states define it as
only earnings.
c. In Re Marriage of Graham
i. Defines property as “ everything that has an exchangeable value or which
foes to make up wealth or estate”

17
 ii. An educational degree does not have an exchanged value or any objective
transferable value on an open market, personal to the holder, terminates on
death of the holder and cannot be inherited.
iii. DISSENT- wife’s earnings were an investment
1. The issue is not whether the degree is property but rather that the
husbands increased earning capacity
2. Majority says should have asked for maintenance, but dissent looks
at the statute that shows that she would have been denied this
anyway.
3. Also mentions what would have happened if they had acquired
assets
iv. Common law associated with trust- allow you to transfer you interest in
trust
1. Cannot be transferred
a. Spend thrift provision- says you cannot transfer you interest
in the trust – creditors cannot get to it, that’s why 99% of
trust that are drafted have these.
b. Pensions/ social security
c. Rent Controlled apt
d. Right to some lawsuits
i. Personal injury
ii. Invasion of privacy
2. Not transferable at death
a. Life estate
b. Annuity
c. Pension rights
4. Celebrity Status or property
a. Elkus v. Elkus - opera
i. To the extent D’s Contributions and efforts led to an increase in the value
of Ps career, this appreciation was a product of the martial property
subject to equitable distribution
ii. Martial property is property acquired during the marriage regardless of the
from in which it is held
iii. Previous cases have held that a medical license enhanced earning capacity,
so as to enable a spouse who contributed to its acquisition to share its
value
iv. The court should consider “ any equitable claim to, interest in, or direct or
indirect contribution made to the acquisition of such marital
property…..and to the career or career potential of the other” pg 330
v. Purpose of the legislation was to prevent inequities which previously
occurred upon the dissolution of the marriage
b. Marital agreements – Requirements for a valid marital agreement
i. Writing ( formalities- notary/witnesses)
ii. FULL! financial disclosure – assets, liabilities, income
iii. Competent and independent legal counsel
iv. Free coercive behavior

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 v. Some add reasonable requirement- at time or at divorce- minority of the
states
c. Alternative – wealthy parents to set up an irrevocable trust prior to marriage –
i. Spend thrift provision- keeps creditors from accessing money. Also want
the child’s interest to be discretionary- trustee is at total discretion to
decide how much of the trust goes to the child- this way it is not reachable
by diving spouse or by creditor (not mandatory interests)
d. Should amend your will, designate a beneficiary, bank account (people will take
out the money and put it in a different account before the other person gets to it-
should probably just move half of the money into your own account)
e. Professional goodwill- most jurisdictions treat professional goodwill/ reputation
likely to generate future business, as a divisible marital asset
i. Termination of Marriage by Death of One Spouse
1. At English common law- land should stay in the patriarchal family
but the spouse should be supported for the remainder of their lives
2. Dower- was a gift made by the bridegroom to the bride at the
wedding
a. Gave the surviving wife in all freehold land of which her
husband was seised during marriage and that was
inheritable by the issue of husband and wife
b. 1/3 of each parcel of qualifying land
3. Curtesy- at his wife’s prior death, a widower was, at common law,
entitled to a life estate in each piece of the wife’s real property if
certain conditions were met
4. Dower v. elective share- usually at death the elective share will
yield you more money
a. Dower attaches as soon as you get married- where as
elective share is only relevant at death
b. Elective share- someone dies, they are married,
1/3 or ½ of what? In NYS just probate stuff, things that
pass through the will, intestacy, items in the sole name of
the decedent. Non probate (life insurance, retirement
benefits, joint tenancy’s goes to survivor, does not go to the
will)
ii. The modern elective share- gives the surviving spouse an elective share in
all property- real and personal- that the decedents spouse owned at death
1. Only relevant in non-community property states
f. Community property
i. Means that property all the property acquired during the period of
marriage believes equally to spouses, each having equal right to manage
the property.
1. In Com. Property states property is divided into 2 classes,
community and separated. All property acquired by a spouse
before the marriage, or after the marriage it the property was a gift,
descent or devise, is that spouses separate property. All others is
community property. This includes wages, each gets 50%

19
 2. Effect of commingling separate and community property? Which
the exact rule varies from jurisdiction, generally, commingling
causes separate property to become community property unless
contrary intent on the part of the couple can be proven
3. Rights at divorce- half of community property-
ii. Alaska you can chose to have separate or community property-
1. Step up in basis of ½ property at the death- (for separate property,
in JT) FMV value at death- if w then sells it later tha w would end
up paying less capital gains than they had to
2. In community property- then you get a full step up in basis. FMV
on death.
g. Rights of Domestic Partners
i. “principle that legal rights and obligations may arise from the conduct of
the parties with respect to another, even though they have no created a
formal document or agreement”
ii. Where you die matters- that states laws will govern all property except for
will property – if you have property in two states you might have to go
through 2 probates
iii. Defensive marriage act- federal level- any state that doesn’t want to ,
doesn’t have to recognize a same sex marriage from another state and only
man and women on the federal level
h. Goodridge v. Department of Public Health
i. Court held that denying marriage license to the plaintiffs was tantamount
to denying them access to civil marriage itself
ii. D’s rational has three parts, argues should prohibit because
1. Providing a favorable setting for procreation
2. Ensuring the most desirable environment for childbearing, which
the department defines as a two parent family which one parent of
each sex
3. Preserving sacred state and private financial resources

Part III. Leaseholds: The law of Landlord and Tenant

Chapter 6: Tradition, Tension and Change in the Landlord Tenant Law
1. Leaseholds: The law of Landlord and Tenant
a. Periodic tenancy and tenancy at will are nonfreehold estates. First used in the
feudal system.
b. Term of Years: A term of years is an estate that last for some fixed period of
time or for a period computable by a formula that results in fixing calendar dates
for beginning and ending, once the term is created or becomes possessory- don’t
need notification because the time period for the end is already set
c. Periodic Tenancy- is a lease for a period of some fixed duration that continues
for succeeding periods until either the land lord or tenant gives notice of
termination
i. Common law rule is that ½ year notice is required for a year to year
tenancy

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 ii. For any periodic tenancy of less than a year, notice of termination must be
given equal to the length of the period but not exceeding 6 months
d. Tenancy at will- is a tenancy of no fixed period that endures so long as both
landlord and tenant desire
e. Gardner v. Gerrish-
i. Early common law was that when the lease is made to have and to hold at
the will of the lessee, this must be also at the will of the lessor- court
explains that this rule is based on the doctrine of livery of sesin. Like this
it is an ancient requirement
ii. The lease here simply grants a personal right to the lease to terminate at
the date of his choice, which is a typical means to create a life tenancy
terminable upon the death of the lease
iii. Ambiguous leases- are subject to a rebuttal presumption that they are at
the will of both of the parties
iv. Those leases that are clean and unambiguously terminate at the will of
only one party are to be controlled by their express terms
f. Tenancy at Sufferance: Holdovers
i. Tenancy at sufferance- arises when a tenant remains in possession (holds
over) after termination of the tenancy. Common law gives the landlord 2
options- eviction plus damages or consent express or implied to creation
of a new tenancy
1. Crechale & Polles, Inc. v. Smith
1-2 months after his lease was up.
a. D claims that he wasn’t to P and P consent to let him stay
for a few months
b. P then informed D that he was treating the lessees holdover
as a renewal of the terms of the lease
c. Held- once the landlord elects to treat a tenant as a
trespasser and refuses to extend the lease on a month to
me, the month basis, but fails to pursue his remedy of
ejecting the tenant, and accepts monthly payments checks
for rent due, he in effect agrees on the extension of the
lease on a month to month basis.
ii. The lease:
2. Delivery of possession
a. Hanna Dusch
i. English Rule- implies a covenant requiring the lessor to put the lessee in
possession
1. Leassor should be better off to know if someone is going to
holdover
2. Promotes good conscience, sound principle and fair dealing
ii. American rule-recognized the lessee’s legal right to possession but
implies no such duty upon the leassor as against wrongdoers
1. Pros-just because the former tenant holds over the leassor should
not be liable
2. Court adopts American rule

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 b. Sublease and Assignments
i. Ernst v. Conditt
1. Assignment arises when the lessee transfers his entire interest
under the lease- right to possession for his entire interests under the
leaser
2. Sublease- the lessee transfers anything less than his entire interest
– still has the right to possession at the end of the period
designated in the transfer
3. Modern trend is to figure out the intention of the parties
4. Privity of the estate- then the benefits and burdens associated with
the landlord tenant relationship continue to be placed on the 2
people of the state on anything that “runs with the land”- touches
and or concern the land. i.e paying rent, taxes, make repairs

3. The Tenant Who Defaults: i.e by failing to pay rent or observe some other lease
obligation- or is holding over, and the landlord wishing to recover possession, or the
tenant has abandoned the premises prior to the end of tenancy, owning back rent.
a. The Tenant in Possession
i. Berg v. Wiley – restaurant case
1. Common law rule- the landlord may rightfully use self-help to
retake leased premises from a tenant in possession without
incurring liability for wrongful eviction provided two conditions
a. The landlord is legally entitled to possession, which as
where a tenant holds over after the lease term or where a
tenant breaches a lease containing a reentry clause
b. The landlords means of reentry are peaceful
2. Another common law rule- a tenant who is evicted by his landlord
may recover damages for wrongful eviction where the landlord

22
 either had no right to possession of where the means used to
remove the tenant were forcible or both
3. Modern doctrine- is that landlord must always resort to the
judicial process to enforce his statutory remedy against a tenant
wrongfully in possession.
4. Policy is to discourage landlords from taking the law into their
own hands because it tends to cause a breach of the peace – also
there is no cause to sanction potentially disruptive self-help where
adequate and speedy means are provided for removing the tenant
peacefully through judicial process
5. Summary Proceedings- response to the mixed short comings of the
landlords self help remedy- because they provide for a quick and
efficient means by which to recover possession after termination
of a tenancy to promote quickness
a. Even if you go through the court it doesn’t necessarily
imply that there is going to be some violence

b. The Tenant Who Has Abandoned Possession

i. Sommer v. Kridle
1. wedding plans had been cancelled
2. P then sued D demanding the total amount due for the full two year
term – After reletting the premises, P amended the complaint
asking for rent due between may and September, TC court found
for D, holding that P had a duty to mitigate damages by
attempting to relet the premises.
ii. Riverview Realty co. V. Perosio-
1. Issue- is a landlord seeking damages form a defaulting tenant
under a duty to mitigate those damages by making a reasonable
effort to relet the premises? Yes
2. The minority view- based on antitrust law- is that the landlord
does have an obligation to make a reasonable effort to mitigate
damages where a tenant has surrendered and abandoned the
premises prior to expiration of the lease
3. Majority rule- based on property law- is that a landlord is under
no duty to mitigate damages caused by a defaulting tenant. This
court held for the minority view.
4. There is a continuing trend by the court to apply principles of
contract law rather than pure property law to residential leases.
5. Application of the contract rule requiring mitigation of damages to
a residential lease may be justified as a matter of basic fairness.
6. Landlord’s duty to mitigate consists of making reasonable efforts
to relet the apt-the landlord has the burden of proving that he used
reasonable due diligence in attempting to relet the apartment
7. Are efforts to relet the apt like saying they accept the surrender of
the defaulting tenant?

23
 a. Surrender- one that connotes quite neatly a tenants offer to
end a tenancy
b. What about when they get notice? 2 ways you can mitigate
this.
i. You can accept the surrender of the property – oral
or written, or by implication- actions- then the lease
ends when you accept and the tenant is no longer
liable for rent, but sill may be able to get damages
1. If there is no acceptance- tenant is still on
the hook for the rest of rent owed in rent
c. Say landlord relets on tenants behalf- then the old lease is
still valid even though you are leasing to someone else- if
you rent out of less than the FMV or the original rent, then
you can sue the old tenant for the original rent minus FMV
plus expenses
d. What if landlord rents for more than the original rent?
i. Lanlord can just keep the old tenant still on the
hook and then, in theory the old tenant would be
able to sue for the difference
e. Accept? And get a new tenant – then you cannot hold the
last on liable.
8. Rent and Damages- landlord has the right to sue for back rent and
for damages occasions by the tenants breach of lease obligations is
straightforward.
a. Difference between the present and the rent reserved in the
lease of the unexpired term
9. Security Deposits – purpose is to protect the landlord in the event
that a tenant defaults in rent, damages the premises or otherwise
breaches the lease
10. Rent acceleration- a provision that upon the tenants default, all
rent for the entire term is due and payable – generally valid

DUTIES
4. Quite Enjoyment and Constructive Eviction
a. Reste Realty Corp. v. Cooper
i. Does a tenant have the right to vacate if his quite enjoyment of the
premises is substantially interfered with by his landlord? Yes-
ii. There is a covenant of quite enjoyment, expressed or implied, the
substantial interference with which by the lessor constitutes constructive
eviction. The lessee then may vacate the premises, thereby relieving him
of any further obligations to pay rent.
1. A tenants right however to claim constructive eviction is lost is he
does not vacate the premises within a reasonable time after there
has been a substantial breach of warranty of quite enjoyment

24
 iii. \Test- substantially unsuitable for the purpose for which they are
leased, or which seriously interferes with the beneficial enjoyment of
the premises
iv. Partial constructive eviction- some courts go far as to allow a tenant to
recover for partial constructive eviction
v. Traditionally the landlord was not responsible for third parties but if the
landlord has them under their power than they have a duty to try to keep
them quite
.
b. The Implied Warranty of Habitability
i. Hilder v. St. Peter
1. Traditional approach- at common law the landlord has no duty to
keep the premises in repair once the tenant moved in.
2. Tenant need not abandon premises
3. All rentals of residential dwelling units include an implied
warrant of habitability that applies to latent and patent defects. The
tenant does not assume the risk of defects. In a place when the
lease is entered and the implied warranty of habitability cannot be
waived
4. Whether an implied warranty of H is breached depends on the
circumstance of the case, but id the defect impact the tenants safety
or health, there is probably a breach.
5. Before suing the tenant must notify the landlord and then allow for
a reasonable time for it to be fixed.
6. Basic measure of damages- is the difference between the value of
the residence as warranted and its value as it actually exists. The
tenant may also recover for discomfort and annoyance, as well as
any cost of repair. Tenant can withhold future rent
7. Punitive damages? If such a willful and wonton or fraudulent
nature
8. FMV (good) – FMV (actual) + punitive=
a. Court probably calculated wrong because then the actual
would have been zero
9. Standard? Housing code, if it effects
10. Usually a breach occurs when the lease premises are uninhabitable
in the eyes of a reasonable person
11. NY-IMH- “unqualified obligation” to keep premises habitable-
ordinary deterioration, work stoppages, acts 3rd parties, natural
disasters

Risks? Is that the court will find there is no breach and permit the tenant
for unjustly being able to pay rent

I. - Public use exception

25
 o Subjects L negligence liability when public is injured resulting from unreasonably
dangerous defects when….
 L leases premises to T for use open to public
 Defects existed at outset lease
 L knew or should have known of defects
 L knew or should have known that T could not be reasonably expected
remedy the situation

II. Transfers of Land

o Introduction to Buying and Selling Real Estate
 First step is to assess how much they can afford to pay, given their income
and savings
 Might also contact a mortgage bank or financial institution to pre-qualify a
loan
 Contract will set forth the legal description of the property , its
price, provision for an earnest money deposit, and the date for the
closing or settlement
 Then you can take the letter for the pre-qualified loan- in order to accept
or sign a contract with the seller.
 Brokers- work for the seller- so be careful what you tell them because it
will be shared with the seller – they are under a fiduciary duty by law to
tell them anything that is relevant to the negotiation process
 Don’t use an inspector that the broker suggests
 Buyers broker-
 Executory- meaning that title is not transferred immediately upon signing
the agreement, because both parties will need to obtain a title search ect
 Most contain a mortgage contingency or a clause allowing the buyer to
obtain an inspection of the property and rescind the contract if the cost of
remedying the problem exceeds some threshold
 K-
 Purchase Price- how paid, terms
 Legal description- maybe survey
 Good title- insurance
 Warranties of title
 Date closing- lease back?
 Proration’s utility bills, prop taxes
 Party responsibilities fire/other –
 Furnishings/ fixtures include
 Escrow terms
 Return deposit?
 Signatures
 Statute of frauds – transfers of all real property must be in writing
 Note 1- does not disclose marital statute- why might the buy want to know
this? In a community property state you would need both signatures

26
 because then if the house is acquired during the marriage it is consider
community property
 Good and merchantable title-
 If buyers are joint tenants or tenancy by the entirety then the
surviving buyer alone could enforce the contract-

III.Brokers:
o Facilitate real estate transactions by marketing a sellers property, listing
residential properties on a MLS, negotiation purchase agreements, serving as an
intermediary between buyers and sellers
o Licensed by the state
o Most sellers enlist brokers to help sell their property- in a listing agreement the
sell authorizes the broker to located a buyer on the sellers behalf
 Selling brokers often work with prospective buyers over long period of
time and develop personal relationships with them- most of the buyers
believed that the selling brokers they had represented them and not the
seller
 Selling brokers actions cannot diverge from their clients interests or
expectations
 They even have a duty to report to the seller any information that the
buyer shares with the selling broker
o Licari v. Blackwelder
 P’s are 6 brothers and sisters who inherited the property
 Found that a real estate broker is a fiduciary- he is required to exercise
fidelity and good faith and cannot put himself in a position antagonistic to
his principle interest.
 A real estate broker acting as a subagent with the express permission of
another broker who has the listing of the property to be sold is under the
same duty as the primary broker to act in the utmost good faith
 A failure to do so renders the broker liability to the principle for
whatever loss the latter may suffer as a consequence thereof and
precludes recovery of a commission for his services
 Buyers brokers? A recent practice- do property searches, review sales,
show buyers prospective homes
 Dual agents- those working for both the buyer and the seller- thought
because they have to be loyal to both- usually works only when the agent
discloses their statues to both of the parties
 Broker must disclose any material defects known by the broker and the
unknown to the buyer
 Have a duty to diligently inspect the property from any hidden
defects of which buyer or broker were unaware
 Types of listing:
 Open Listing- least protective- seller still retains the right to sell
the property herself or use a different broker- broker only gets
commission if they are the first to procure an offer from a ready,
willing and able buyer who matches terms and is wiling to buy

27
  Exclusive- agency listing- Permits only one broker to sell the
property for a specific period of time. Seller can still sell the
property herself
 Exclusive- right-to-sell listing- this is the most protective that a
broker can secure- the owner must pay the broker if any buy
purchases the property during the specified duration of the listing
no matter who found the purchasers
 When is the commission Due? Traditional rule is that a broker earns
commission upon bringing to the seller a buyer who is ready, willing and
able. Broker is entitled to a commission if the seller defaults and also if
the buyer defaults. (usually about 5-7%)
 Minority rule: is that the broker is not entitled to ac commission
until closing, reflecting reality that most sellers pay the broker with
the proceeds from the sale of the property
IV. Contract of the Sale:
o Statute of Frauds- sought to make people more secure in their property and their
contract by making deceitful claims unenforceable
 If the price is not given it still can be upheld if there is a mechanism for
determining the price i.e fair market value
 Exceptions?
 Part Performance: allows the specific enforcement of oral
arguments when particular acts have been performed by one of the
parties to the agreement
 Estoppels: applies when unconscionable injury would result from
denying enforcement of the oral contract after one party has been
induced by the other seriously to change his position in reliance on
the contract
o Hickey v. Green
 Relying on the agreements P had advertised his land and sold it. Later D,
informed P that he no longer intended to sell him the land anymore.
 Restatement Second-“ if it is established that the party seeking
enforcement, in reasonable reliance on the contract and on the continuing
assent of the party against whom enforcement is sought, has so changed
his position that injustice can be avoided only by specific enforcement”
 Here, no public interest will be violated if D is held to her bargain by the
principles of equitable estoppels subject to the following
 P’s have already conveyed or are still obligated to convey the
property
 The case is remanded for the trial judge to require D to convey the
property only upon payment to her in cash of the balance of the
purchase price within a stated time
 Note: the statute of frauds and electronic transactions: e-sign- some
say series of e-mails are enough for the statute of frauds
 There has to be:
 There has to be good evidence that there was an oral contract and
 And a detrimental reliance

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  Remedies?
 Case should be remanded to see if the P’s are still obligated to sell
their property- then Specific Performance or
 If they no longer have to sell the hickeys house or SOF is not met
then they can get money damages- litigation costs, value of the
bargain perhaps ect
V. Marketable title
o Seller must convey to the buyer a “marketable title”- a title not subject to such
reasonable doubt as would create a just apprehension of its validity in the mind of
a reasonable, prudent and intelligent person, one which such persons, guided by
competent legal advice, would be willing to take and for which they would be
willing to pay fair value
o Lohmeyer v. Bower
 General Rules-
 The existence of municipal restrictions, such as zoning, is not a
ground for the buyer to rescind a contract- it’s the violation that
makes the title unmarketable
 Private covenants or restrictions, such as height requirement, may
constitute encumbrances rendering title unmarketable – just their
mere existence might do this
 Why different rules here? Its easy to track down a private covenant
on property because its usually can be found with a title search, it
is not so easy to find out what all the zoning ordinances are.
 Marketable title – the defect of which purchaser complains must be of
substantial character and one from which he may suffer injury
 Title insurance- something you can purchase to protect yourself in order to
assure yourself that another person who owns the property can’t bring a
suit against you
 482 question 2
 Rhodes- common driveway partially on both properties established
by written instrument is encumbrances even thought it did not
diminish fair market value
 Sziskind- electric utility easement even thought it was known to
the purchaser, are encumbrances
 Ludke- court applied minority rule- easement fully known to the
purchaser before contract, or so open, obvious and notorious, is not
an encumbrance
 Note: Equitable Conversion- if there is a specifically enforceable contract
for the sale of land, equity regards as done that which ought to be
done…….? Method of conveying risk of loss – treats the buyer as the
equitable owner of the land with the seller as the legal owner.
 Risk of loss- used by some courts to determine whether the seller of the
purchaser is liable got the loss when the premises is destroyed before
closing. (Paine v. Meller- says burden is on purchaser)
VI. The Duty to Disclose Defects
o Stambovsky v. Ackley

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 
Ghost case- The doctrine of caveat emptor- let the buyer beware- imposes
no duty on the vendor to disclose any information concerning the premises
unless there is a confidential or fiduciary relationship between the parties
or some conduct on the part of the seller that constitutes “active
concealment”
 Requires the buyer to act prudently and operates to bar the
purchaser who fails to exercise due care from seeking recession
 The reputation of the house goes to the very essence of the bargain
between the parties, greatly impairing both the value of the property and
its potential for resale.
 “as is” clause not good argument because the facts here are peculiar
within the knowledge of the party invoking it.
 Where a condition which has been created by the seller materially
impairs the value of the contract and is peculiarly within the knowledge of
the seller or unlikely to be discovered by a prudent purchaser exercising
due care with respect to the subject transaction, nondisclosure constitutes
a basis for rescission as a matter of equity
o Johnson v. Davis
 Johnsons, sellers, knew that the roof leaked but they affirmatively
represented to the davis’ that there were no problems with the roof
 Holding- that where the seller of a home knows of facts materially
affecting the value of the property which are not readily observable and
are not known to the buyer, the seller is under a duty to disclose them to
the buyers
 Under common law there was no liability for nonfeasance.
 Material? When…either…
 An objective test of whether a reasonable person would attach
importance to it in deciding to buy or…
 A subjective test of whether the defects ‘affects the value or
desirability of the property to the buyers’
 Real estate brokers have been among those who have promoted seller
discloser laws because if the seller has a duty to disclose, the real estate
broker also has a duty to disclose to a prospective buyer material defects
that are known to the broker but are unobservable and unknown to the
buyer

VII. The implied warranty of Quality – an implied warrant that the building is fit for
the use contemplated by both of the parties.
o Implied warranty of workmanlike quality-
 Lempke v. Dagenais:
 Lempkes, P, predecessors in title contracted with the D to build a
garage.
 Can a subsequent purchaser of real property sue the
building/contractor on the theory of implied warranty of
workmanlike quality for latent defects that caused economic loss,
absent privity of contract? Yes.

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  Privity of contract is not necessary for latent defects that manifest
themselves within a reasonable time after purchase and that cause
economic loss. To require privity would be to defeat the purpose of
the implied warranty of good workmanship and could leave
innocent homeowners without a remedy.
 Other courts have found that implied warranty exists
independently, imposed by the operation of the law on the basis of
public policy because of the parties relationship, the nature of the
transaction, and the surrounding circumstances
 There is no rational for a distinction between mere economic loss
and personal injury
 Extension of liability is limited to latent defects and limited period
of time
 P has the burden to show that the defect was caused by the D’s
workmanship
 The builder has a defense such as the defects being the result of
wear and tear or that other people have made substantial changes

VIII. The Deed:

o Consideration- A deed does not require consideration, a grantor may give the
property away
o Failures in the description of the property- extrinsic evidence is usually allowed
to clear up any ambiguity in the description of the property
 Latent ambiguity- not on the face of the deed- ie. My house in the
mountains, but I have two houses in the mountains
 Patent ambiguity- 120 Harvard not 102 Harvard
o Warranties of Title- almost all deeds contain what attorneys refer to as the “usual
covenants”
o Types of deeds warranting title:
 Warranty Deed- general- this is the usual type of deed and it contains the
usual covenants. It warrants title
 Special warranty Deed- this type contains the usual covenants but
warrants title only from defect arising during the time the grantor has held
the land.
 Quitclaim deed- this form of deed does not warrant anything. It only
transfers whatever interest the grantor has, or may have, in the property.
 Gifts
o Usual Covenants
 Present Covenants: these are covenants are breached when the
conveyance when the conveyance is made- SOL beings to run as of the
date of the conveyance
 Covenant of Seisin- the seller covenants he owns the property
conveyed
 Covenant of right to convey- the seller warrants that he has the
right to convey property. For example this covenant would be

31
 breached if the seller had the property in an irrevocable trust that
gave only the trustee the right to convey
 Covenant against encumbrances- the seller promises that there are
no easements, covenants, mortgages or liens on the property. As a
practical matter almost all property is subject to an encumbrance of
some sort. What the sell will do is warrant against them “except as
enumerated herein”
 Future Covenants- these are continuing covenants that may be breached at
the moment of the conveyance or anytime thereafter. The SOL doesn’t run
until there is an actual breach
 Covenant of quite enjoyment- the seller warrants that the buyer will
not be disturbed in her possession of the property by the lawful
claim of a third party
 Covenant of warranty- this covenant meshes closely with the
covenant of quite enjoyment- the seller warrants that the title to the
property is good and that, as grantor, he will defend at his own cost
of any suit from a party claiming paramount title
 Covenant of further assurance- this is unusual- more in England-
seller promise to perform whatever acts are necessary to perfect the
buyer’s title to the property.
 Brown v. Lober

IX. Abolition of privity regulations for subsequent purchases
o Many defects cannot be discovered by inspection
o Builder is cheapest coat avoider
o Expectations of subsequent purchaser……suitable home
o Implied warranty MAY discourage sloppy building
X. Remedys – states reluctant to adopt uniform laws
o Compensation
o Rescission
o Specific performance
XI. Include K
o 10% earnest money
o Liquidated damages clause
o Time essence

XII. The Mortgage

o Up until the 1980s a couple would have to go to a local savings and loan
association and borrow the money to purchase their home- the saving and loan
would make the loan from money in customer savings accounts, would secure the
loan with a mortgage, and would hold the promissory note and the mortgage until
the loan was fully repaid or otherwise terminated
o Then congress established the Federal National Mortgage Association (Fannie
Mae and the Federal home Loan Mortgage Corporation (Freddie Mac)- these
were created to establish a secondary market in which mortgages could be bought

32
 and sold like stocks, thereby evening out credit flows across the nation. (mortgage
backed securities)
o Fixed interest- borrowers make a constant payment each month which included
both a component for interest and one for principal
o Adjustable rate- usually feature an initial below market interest rate that gradually
increase according to an index based on debt issued by the federal reserve bank
o The after getting a loan to borrow the money, the borrower must give the lender a
note and a mortgage (aka a security for the loan)
o The buyers are the mortgagor and the lender is the mortgagee- if there is a default
then the property can be sold (foreclose the mortgage) and apply the proceeds of
sale to the amount due on the note.
o The mortgagors interest is known as the equity- short for equity of redemption-
 Strict foreclosure, a proceeding in which the mortgagor was ordered to pay
within a given period or be forever barred-
 Foreclosure sale- pay off debt if there was not enough money from the
sale then the mortgagee could recover a judgment for the deficiency
against the mortgagor
o Deed of trust- the borrower conveys title to the land to a person to hold in trust to
secure payment of the debt to the lender
o Say the buyers buy a house for 200,000, make a down payment for 20,000,
borrow 150,000 from the bank and give the bank a note secured by a second
mortgage for 30,000- the second mortgage is subject to the prior rights of the first
mortgage (so the second mortgage has an increased risk)
o Grant S. Nelson & Dale A. Whitman, Real Estate Finance Law §7.21
 All jurisdictions adhere to the rule that mere inadequacy of the foreclosure
sale price will not invalidate a sale, absent fraud, unfairness or other
irregularity
 Two main standards for invalidating
o Unless is it so gross as to shock the conscience of the court,
warranting an inference of fraud or imposition
o Price must be “grossly inadequate” before a sale may be
invalidated
 Deeds in lieu of foreclosure- can sometimes avoid foreclosure by
tendering its deed to the lender in lieu – then in most cases the lender will
agree to give up an claim for a deficiency judgment
 Transfer by mortgage-
 Subject to mortgage- means that purchaser does not assume any
personal liability for the mortgage debt for which the mortgagor is
liable
 Purchasers “assumes” the mortgage then they purchaser promises
to pay off the mortgage debt-
 Acceleration clause might be added to enable the mortgagee, upon
transfer of the mortgagors equity, to declare the whole amount of
the mortgage debt due and upon failure to foreclose

33
  Installment land sale contract or a contract for a deed- purchaser
takes possession and the seller contracts to convey title to the
purchaser when the purchaser has [aide the price in regular
installments over a fixed period of time

XIII. Title Assurance- has developed to assure purchaser of land they have good title to
their purchase
o A Recording System
 Introduction- every American state had a statute that provide for land title
records to be maintained by the county recorder
 Serves several functions
 Established a system of public recordation of land titles
o Anyone can go see who owns the land
 The recording system preserves in a secure place important
documents that, in private hands, may be easily lost or misplaced
 Lis pendends- notice of pending action can be filed- which can put
subsequent claimants on notice of the claims being litigated
 Finally, the recording acts have the function of protecting
purchasers for value and lien creditors against prior unrecorded
interests – thus a subsequent purchaser
 Common law rule- first in time , first in effect
o The indexes
 Tract index- by parcel id number- rare because to being with land was
described by meets and bounds
 Grantor-grantee index- under the grantors all instruments are indexed
alphabetically and chronologically by grantors name
 In the grantee index all instruments are indexed under the grantees
surname
 How?
o Grantee index to search backwards and vice versa to make
sure you don’t miss any unrecorded deeds- kinda like
searching kindred
 How far back?
o Chain of title problems- refers generally to the recorded sequence of transactions
by which title has passes from a sovereign to the present claimants
 Also refers to the period of time for which records must be searched and
the documents that must be examined within that time period
o Persons protected by the recording system- “creditors or subsequent purchasers
for a valuable consideration”
 Requires courts to determine what is valuable consideration- why do
courts require more consideration here to enforce the contract?
o Notes:
 Creditors-a number or recording statutes protect creditors – but only ones
that have established a lien, such as by attachment, not all creditors

34
 o Inquiry notice- a type on constructive notice- based on the facts that would cause
a reasonable person to make inquiry into the possible existence of an interest in
real property
o Market Title Acts- limit title search to a reasonable period of time – when one
person has a record title to land for a designated period of time, inconsistent
claims or interests are extinguished
o Title insurance- inadequacies and inefficiencies of the public records in protecting
private titles- usually purchased in the value of the property- by the lender is the
value of the loan
 Now all secondary market purchasers or mortgages also require lenders
title insurance, there has been an explosive growth in title insurance
o Title assurance
 Why important to have clear set of rules- i.d who owns land
 Chapter 1- clear rules promote alienability and economic
efficiency
 What are alternative types of rules society could develop ownership
 Could use actual possession of property or of the document itself
 Personal property
 Recording systems dominate- repository (lost) and decreased costs-
possessing v. guarding
o Actual notice
o Record notice
o Inquiry notice

Chapter 9: Judicial Law Use Controls- the Law of Nuisance

1. Law of Nuisance- part torts part property
a. Liability if for interference with the use and enjoyment of land
b. Sic utere tuo ut alienuym non laedas- that one should sues one’s own property in
such a way as not to injure the property of another
c. An introduction to the Substantive Law
i. Morgan v. High Penn Oil co
1. D’s operated an oil company appox 1,000 feet away which emitted
nauseating gases and odors that invaded across nine acres of P’s
land and other lands in the area.
2. Jury found the nuisance damages for 2,500- and also enjoined the
D from continuing the nuisance
3. A private nuisance exists when one makes an improper use of his
own property and in that way injures the land or some
incorporeal right of ones neighbor
4. Can be either intentional or unintentional
a. Intentional when that his conduct is unreasonable under
the circumstances of the particular case – when the person
known that the conduct in question is resulting from his
acts or they are substantial certain to result from his
conduct

35
 b. Unintentional when his conduct is negligent reckless or
ultahazardous
5. Holds= the evidence is ample to should that the gas is to such a
degree as to impair P in a substantial manner and their use and
enjoyment of their land
6. Issuance of an appropriate injunction is necessary to protect P
against threatened irreparable injury
7. Unreasonablness- rather than inviting a comparison of whether the
social benefits of the D’s conduct outweigh its expected cost the
relevant inquiry is whether the interference crosses some threshold
that marks the point of liability
8. Jost- considered whether the gravity of the harm out weights the
utility of the actors conduct
9. Intentional invasion is unreasonable to nuisance when –b
restatment
a. If, as before, the gravity of the harm out weights the utility
of the actors conduct or
b. If, alternatively , the harm cause by the conduct is serious
and the financial burden or compensating for the harm to
other would not make the continuation of the conduct not
feasible
c. Acting for the purpose of causing the invasion OR knowing
that it is resulting or is substantially certain to result from
the conduct in question
10. Lateral and Subject Support
11. Nuisance- substantial nontrespassory invasion of use and
enjoyment of land that is caused by negligent, reckless, or
ultahazardous activities, or by activities that are intentional AND
unreasonable.
12. Coase theorem- figure out the cost to abate or the cost pay -to find
the least cost avoider
13. Then you need to figure out who gets it
14. Problem with paying future damages- what if you sell your house,
error costs, prob not a class action
a. So maybe an injunction is the better way to go
b. Allows parties to negotiate
ii. Remedies
1. Estancias Dallas Corp. v. Schultz
a. There is an implied finding that the trial court balanced the
equities in favor of the Ps by entering the J granting the
injunction
b. Value of land decreased from 25,000 to 12,500 after –
would have cost the D’s 40,000 more at the time for quite
ACs but now it would be 150,000 to remedy the problem,/

2. Boomer v. Atlantic Cement Co.

36
 a. Two possible methods-
i. One to grant the injunction but postponed its effect
to a specified future date to give the opportunity for
technical advances to permit defendant to eliminate
the nuisance (court rejects this, time issues,
technology? Out of their control)
ii. To grant the injunction conditioned on the payment
of permanent damages (both past damages and all
of the future damages) to P, which would
compensate them for the total economic loss to their
property present and future caused by D’s
operations – binds current and future parties from
bringing suit- which would result in the decrease in
value of the land-
1. Also doesn’t include other parties
2. Makes no incentive to change
b. Scales of justice- look at the injury to the P if the injunction
is not granted and the injury to the D if the injunction is
granted and the injury to the public
c. Just an injunction here- then the cement company has an
incentive to buy their way out of it
d. Bilateral monopoly issue?
3. Spur Industries, Inc. v. Del E. Webb Development Co.
a. Public nuisance you have to have a special injury to have
standing- might be pg.662- here webb did because he was
losing money
b. Spurs foreseeability
c. First in time- important but not conclusive-

Legislative Land Use Controls: The Law of Zoning

I. Introduction: Historical Background
a. Changes from industrialism created congestion, overcrowding, noise, tenement
housing, moral turpitude, factories belching smoke from soft coal and foul odors
b. Early ordinances were used to control nuisances- now the most common are eight
bulk, area and exterior design
c. Village of Euclid v. Ambler Realty Co
i. the supreme court upheld the Village of Euclid’s Zoning ordnances against
a challenge the zoning law violated the due process clause and the equal
protection clause
ii. Zoning plan known As cumulative zoning- the different zones are ranked
in a hierarchy- Euclidean zoning=
1. Use-6
2. Area-4
3. Height- 3 districts
iii. P claims that the ordinance violates the due process clause of the 5th
amendments which guarantees that no person shall be deprived “ of life,

37
 liberty, or property, without due process of the law- they claim that they
suffer from loss of its lands value and loss of the right to use its land for
otherwise legal purposes
iv. For a law to be constitutional it must
1. Advance the public, health, safety, morals or general welfare- a
legitimate state interest
2. The means chosen to achieve the interest is rationally related to
the legitimate state interest
v. Reasons- make it easier to provide for fire apparatuses
1. Increased home security
2. Prevention of street accidents- by children
3. Reducing traffic
4. Decrease in noise
5. More favorable environment for children
vi. The Court argued that the zoning ordinance was not an unreasonable
extension of the village's police power and did not have the character of
arbitrary fiat, and thus it was not unconstitutional.
vii. Court found that Ambler Realty had offered no evidence that the
ordinance had in fact had any effect on the value of the property in
question, but based their assertions of depreciation on speculation only.
The court ruled that speculation was not a valid basis for a claim of
takings.
viii. Garden City- zoning
1. Segregation of uses desirable
a. Downsides? Longer to get places, the commute to work is
longer
2. “wholesome housing”- central aim
a. Single family- duplex-apts
3. Open space surrounding houses- setbacks, lot size, ect
a. Surrounding factories- industrial parks
4. Little change required- no professional staff needed
5. Ignored dynamic culture of a metropolis and density, growing
population
II. The Structure of Authority underlying Zoning
a. Enabling Legislation- The Standard State Zoning Enabling Act- delegated zoning
authority to the local government
i. To enact a zoning ordinance a city must create a planning or zoning
commission and a board of adjustments. They have the function of
recommending a comprehensive plan and zoning ordinance to the city
council.
ii. The comprehensive plan- not all jurisdictions require this, it is a statement
of the local governments objectives and standards for developments.
1. Not invalid unless they are unreasonable or not in the public
interest
b. Nonconforming use
i. Northwestern Distributors, Inc. v. Zoning Hearing Board- adult book

38
 1. Issue- whether a zoning ordinance which requires the amortization
and discontinuance of a lawful preexisting nonconforming use is
confiscatory and violative of the constitution as a taking of
property without just compensation
2. The amortization clause said that one nonconforming with the new
amendment would have 90 days to relocate
3. Sullivan court held that provisions of amortization clause would be
upheld as constitutional exercises of police power so long as they
are reasonable.
a. Factors?
i. Natures and present use
ii. The time period of amortization
iii. Other developments/ future prospects
iv. Other facts and circumstances
b. Based on Sullivan the hearing board concluded that real
and substantial benefits of the townships elimination of the
nonconforming use from this location, more than offset the
losses to the affected landowner
4. A person has the constitutional right to use his or her property,
unfettered by governmental restrictions, except where the use
violates any law, the use creates a nuisance, or the owner violates
any covenant, restriction or easement
5. Municipalities lack the power to compel a change in the nature of
an existing lawful use of property-
6. Unconstitutional on its face because it is repugnant to the basic
protection accorded to the commonwealth vested in their property
interests
7. CONCURRING- agrees, but not that it is unconstitutional rather
that the reasonableness should be weighed and here, after
considering the relevant factors, the requirements have not been
met and therefore should be struck down
8. @ outset zoning
a. Non conforming uses tolerated- there was nothing to
combat it at first
i. Unless they could declare it as a nuisance somehow
ii. Would just hope that it would fade away and then
whatever replaced it would have to be conforming
iii. Didn’t fade away- some not subject , obsolete
(junkyard) abandoned (seldom)- monopolies or
oligopolies
iv. Forbidding maintain/ repair
v. Amortization – during this time you can keep
running your business as you were then thereafter
you have to conform
III. Exclusion for fiscal reasons /exclusionary zoning

39
a. Exclusionary zoning- central purpose is to minimize or eliminate unwanted
effects- externalities- in a given district, whether the effect be caused by typical
nuisance, by apartments or commercial use in a high-class single family
residential zone, or by group homes
b. Southern Burlington County NAACP v. Township of Mount Laurel
i. D’s zoning ordinance is presumptively contrary to the general welfare and
outside the intended scope of zoning power. A facial showing of invalidity
is thus established, shifting to the municipality the burden of establishing
valid superseding reasons for its action and non-action.
ii. Considering the basic importance of the opportunity for appropriate
housing for all classes, no municipality may exclude or limit categories of
housing solely on fiscal reasons.
1. D claims that this would greatly reduce the tax rate in the
municipality- lower need for schools, ect less services needed if
there are no kids
iii. Land use regulation is encompassed within the states police power – it is
required affirmatively that it must promote the public health, safety,
morals and general welfare
iv. MUST have the reasonable opportunity for an appropriate variety and
choice of housing, including, of course, low and moderate cost housing, to
meet the needs and desires and resources of all categories of people who
may desire to live within its boundaries
v. Obligation is presumptive
1. Procedural- there is a facial showing of violation of substantive
due process or equal protection under the state constitution- and
therefore the burden shifts to the state to establish a valid basis for
its action or non-action
2. Substantive – this relates to the specifics of what a municipal land
use regulation provisions will evidence invalidity and shift the
burden aka of what bases and considerations will carry the
municipalities’ burden and sustain what it has done or failed to do
vi. D’s arguments
1. Beneficial to the local tax rate- why care so much? Bulk of the
revenue that pay for city services, edu, ect. Are born on the back of
property taxes
2. Ecological or environmental reasons
a. But only really conserved where there the danger and
impact is substantial and very real and only if it is
reasonably necessary for public protection of a vital interest
vii. Remedy- 90 days to come up with amendments to remedy the situation –
first have the opportunity to fix without judicial intervention, then they
must report and plan it for future action. If it isn’t good enough then
further judicial action may be sought by a supplemental pleading in this
case.
viii. Exclusionary Zoning techniques-

40
 1. Minimum housing costs- mostly invalidated because there was not
rational relationship between cost and advancing the public health
and safety
2. Minimum floor area- mixed feelings from jurisdictions
3. Minimum size lots-
4. Minimum set back requirements
5. Barring mobile or manufactured homes- no one really likes trailers
ix. Tiebout hypothesis- that consumers benefit from being able to “vote with
their feet” among municipalities offering varying packages of public
goods and taxing policies i.e- families with kids might setting in places
with excellent schools –competition would enhance the efficiency
x. Inefficiencies of exclusionary zoning
1. Increase prices in excl, Com + adj areas-> supply restrictions
(supply/demand)
2. Inability of households to make tradeoffs between housing
consumption and commutes
a. Results in increase in auto use, traffic congestion, pollution
3. Concentration of poverty in the inner city
a. Results in increase police protection, remedial education,
ect

TURNIPSEED LOVES TAKINGS- KNOW THIS SHIT

Chapter 12 Eminent Domain and the Problems of Takings
“nor shall private property be taken for public use without just compensation”
1. ED is the power of the government to force transfers of property from owners to itself
a. Various rationales?
i. That sovereign states had original and absolute ownership or property,
prior to possession by citizens
ii. Individual possession derived from grants from the state and was held
subject to an implied reservation that the state might resume ownership
iii. Ed is the natural consequence of royal prerogatives that inhered in the
concept of feudalism
iv. Power to take rule stresses efficiency
1. Ie. Railroad example- necessary to prevent from a monopoly

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 2. People must be allowed to sue the courts to shirt resources to a
more valuable sue, because the market is be definition unable to
perform this function in those settings
v. Duty to compensate- obvious fear that private investors will be inhibited
by the thought that government will snatch away or unthinkingly destroy
the fruits of their venture
1. Conventional economic wisdom
2. Can be viewed in terms of fairness- is its fair to effectuate this
social measure without granting this claim to compensation for
private loss thereby inflicted
vi. The public use puzzle
1. Government cannot condemn for private purposes
2. Kelo v. City of New London
a. Issue here is whether the cites proposed disposition of this
property qualifies as a public use within the meaning of the
takings clause
b. Two propositions are clear-
i. That the sovereign may not take the property of A
for the sole purpose of transferring it to another
private party B, even though A is paid just
compensation
ii. Also clear that a State may transfer property from
one private party to another if future “use by the
public” is the purpose for the taking
c. All courts agreed that that there was no evidence of an
illegitimate purpose in this case and that the city’s plan
d. Berman v. Parker- held that the plan must be planned as a
whole- it is within the power of the legislature to determine
that the community should beautiful as well as healthy ect
i. Actually property doesn’t not have to be blighted
ii. Differential standard
e. Hawaii-Midkiff- rejected the contention that the mere fact
that the state immediately transferred the properties to
private individuals upon condemnation somehow
diminished the public character of the taking
f. To satisfy “public use” requirement, condemned property
need not be put to use for the general public but it must
serve a public purpose
g. Concurrence- while affording legislatures deference in
applying the public use test, courts must ensure that a
taking does not favor a particular private party and
provide only incidental public benefits
h. Dissent noted 3 categories of takings that had been held to
satisfy the public use requirements in the past
i. Transfers of private property to public ownership,
as for a road, hospital, military base, ect

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 ii. Transfers to private parties such as common
carriers, railroads and the like who make the
property available for public use
iii. Transfers to private parties as part of a program to
serve a public purpose
1. Problem with this is that when the public
purpose is economic development, private
benefits with incidental public benefits may
be justified as long as there is a public
advantage

b. Physical Occupations and Regulatory Takings

i. Though not intended to take the property the government might
nonetheless be held by the courts to have done so
ii. Physical Occupation/ invasion are the easiest to identify- government has
no legal defense for the invasion – usually categorical or per se takings-
1. Loretto v. Teleprompter Manhattan CATV Corp
a.
2. Hadacheck v. Sebastian- brick kiln
i. set forth at length his grievances, that his land was
quite valuable and that he acquired this particular
tract for the express purpose of manufacturing
bricks, that the ordinance would deprive him of his
use of the property and force him to abandon his
business
b. Does the city ordinance prohibiting the operation of a
heretofore lawful enterprise amount to an implicit taking of
the business property? No
c. California Supreme Court found in favor of the city,
accepting the judgment of the legislators. The court held
that the business was one which could be lawfully
regulated, and the fact that the petitioner began his business
prior to the enactment of the ordinance was no defense.
d. holding that the ordinance was a legitimate use of the
police power. He analogized this case to an earlier one,
Reinman v. Little Rock, 237 U.S. 171 (1915), which dealt
with a similar ordinance banning livery stables. Reinman
was distinguishable on the grounds that a livery stable
could be moved and operated anywhere, while bricks
manufactured where suitable clay is found. Hadacheck
contended that the removal of clay from his land was not
physically impossible, but was prohibitively expensive. The
Court held that even though relocating the brick factory
would be costly, the ordinance did not amount to a
complete denial of the use of Hadacheck's property,

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 because the ordinance did not completely deny Hadacheck
the use of the clay on his land.
e. To hold that a city cannot change its laws to prohibit
existing activates such as Ps would preclude development
and fix a city forever in primitive conditions
f. It might be said that the state takes property by ED because
it is useful to the public and under the police power because
it is harmful
3. Lucas- hadacheck not a common law nuisance if at common law

iii. Rules based on Measuring and Balancing

1. Pennsylvania Coal Co. v. Mohon (P)
a. The decision thereby established the doctrine of regulatory
taking and the diminution-of-value test
b. The Court considered the issues of
i. whether the Kohler Act as applied to the property in
question constitutes an exercise of the police power,
requiring no compensation, or of eminent domain,
requiring compensation
ii. whether the act in general constitutes an exercise of
the police power or of eminent domain.
c. The damage done by the activity prohibited by the act is a
private, not a public nuisance; there is no public safety
justification for the statute, as notice before mining would
suffice to protect public safety.
d. On the other hand, the damage done by the statute is
significant, insofar as it abolishes an estate in land—a very
valuable estate—and a binding contract.
e. The statute, in general, purports to extinguish the mining
rights to properties under surfaces owned by the public and
the government.
i. The statute makes prohibitively expensive the
mining of coal in these areas, and thereby
effectively destroys the right. The rights of the
public to its streets and other property are rights
paid for. If the representatives of the public have
been so shortsighted as not to pay for the mining
rights of the land as well, there is no authority to
grant those rights without compensation. (If the land
above required compensation, so therefore does the
land below.)
f. In general, “if regulation goes too far”, it will be
considered a taking.
g. We are in danger of forgetting that a strong pubic desire to
improve the public condition is not enough to warrant

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 achieving the desire by a shorter cut than the constitutional
way of paying for the change
h. Concept of conceptual severance-
i. % of the value of the total property is what your
taking
i. Percentage of diminution in value- numerator value of the
coal over __
i. Majority said that extinct estate – right to not be
caved in- 100% of the subsurface rights
ii. Dissent says denominator is the total value fee
simple
j. DISSENT: The State does not appropriate the property or
make any use from it, the state merely seeks to prevent the
owner from making a use which interferes with paramount
rights of the public.  A restriction upon use cannot be
lawfully imposed unless its purpose is to protect the public
as an appropriate means to the public end
i. Brandeis says that any government regulation, no
matter how minimal, will deprive a property owner
of a right, but that doesn’t mean we’re always going
to compensate the owner.  Brandeis says the
government has the power to regulate the use of
private property in the interest of “public health,
safety, or morals” without compensating the owner
c. Penn Central Transportation Company v. City of NY
i. Whether a city may, as part of a comprehensive program to preserve
historic landmarks and historic districts, place restrictions on the
development of individual historic landmarks, without effecting a taking
requiring just compensation?
ii. Goals of the legislation- to prevent historic buildings and aesthetic
importance
1. Law imposed a duty upon the owner to keep the building in good
appearance
2. Owner may apply for a cert of no effect on the protected
architectural features
iii. Held- that the restrictions on the development of the terminal site were
necessary to promote the legitimate public purpose of protecting
landmarks and therefore that appellants could sustain their constitutional
claims only by proof that the regulation deprived them of ALL reasonable
beneficial use of the property
1.     The Court won’t consider different parts of a property and look at the taking of one part as
the taking of 100% of a property interest.  The Court will look at the effect on the parcel of
property as a whole. 
2.    The Court says that it won’t entertain the idea that the only way to make the application of
landmark laws fair is to make all landmark regulations compensable takings.  One reason they

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won’t consider this is that this would invalidate all landmark preservation laws all around the
country
3. The Court finds that the regulation of the Terminal is not an appropriation of property for a
purely governmental purpose.  The Court thus distinguishes United States v. Causby
v. The Court notes that the regulation does not interfere with the owners’ present and long-time
past use of the property, and that the owners can still make a profit on the terminal as just a plain
old terminal and not an office building.  The majority concludes that there was no “taking”
1. Permanent physical occupation taking
2. Nuisance- not a taking
3. Total wipeout $ taking
4. 3 part Penn Central test
a. Economic impact of the regulation on claimant (dim. in value as a %)
i. Ran offset gain v. loss
ii. E.g- Transfer development rights, average repricioty of advantage
1. TDR- means that you can take what we are taking away from you
and you can tack it on to other buildings that you own or you can
sell it
2. Scilia- shouldn’t be using them when assessing takings because
then essentially you can never have a complete whip out
3. ARA- even though you are unable to build x, neither is your
neighbor therefore you are getting the ARA
b. Extent to which regulation has interfered with DIBE (distinct investment backed
expectations) – meaning if you have invested some money then you have some
IBE that the court should matter in some ways
i. Primary expectations (here just operating grand central)
ii. Court says they could have attempted to build a smaller building
c. Character of government action
i. Retroactive and if so the extent
ii. Targeted at particular individual
5. Dissent-
a. Substantial burdens which are brought down on very few individuals
b. Takings not coterminous with the police power
6. Conceptual severance- here numerator is what we lost- the air rights, the denominator
here is all the buildings on the city tax block

7. A Third Categorical Rule

a. Lucas v. South Carolina Coastal Council
i. RULE: A regulation that deprives an owner of all economically beneficial
uses of land constitutes a taking unless the proscribed use interests were
not part of the title to begin with.
ii. In other words, a law or decree with the effect of depriving all
economically beneficial use must do no more than duplicate the result that
could have been achieved in the courts under the law of nuisance.
iii. As a result, "total takings" analysis requires a consideration of

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 1. the degree of harm to public lands or adjacent property posed by
the regulated activities
2. the social value of such activities, and
3. the relative ease with which the alleged harms can be avoided
through measures taken by either the claimant or the government.
iv. Court never set forth the justification for this categorical rule, the practical
and economic equivalence of physically appropriating and elimination all
beneficial use of land counsels its preservation
v. A review of the relevant decisions demonstrates that the “harmful noxious
use” principle was merely this courts early formulation of the police
power justification necessary to sustain (w/o comp) any regulatory
diminution in value;
1. That the distinction between regulation that “prevents harmful use”
and that which “confers benefits” is difficult, if not impossible, to
discern on an objective, value free basis and therefore noxious use
logic cannot be the basis for departing from this courts categorical
rule that total regulatory takings must be compensated
vi. To win D cannot simply proffer the legislatures declaration that the uses P
desires are inconsistent with the public interest, or the conclusory assertion
that they violate a common law maxim, but must identify background
principles of nuisance and property law that prohibit the uses P not intends
in the property’s present circumstances
vii. Concurrence- Reasonable expectations must be understood in light of the
whole or our legal tradition. The common law of nuisance is too narrow a
confine for the exercise of regulatory power in a complex and
interdependent society
viii. Dissent- Blackman- found no clear and accepted “historical compact” or
“understanding of our citizens” justifying the new taking doctrine – court
seems to treat history as a grab bag of principles to be adopted when they
support the courts theory, and ignored when they do not
ix. Dissent- Stevens- the test the court announces is that the regulation must
do no more than duplicate the result that could have been achieved under a
states nuisance law. Under this test the categorical rule will apply unless
the regulation merely makes explicit what was otherwise an implicit
limitation on the owner’ property rights, the court is doubly in error.
Unsound and unwise addition, too rigid and too narrow.
x. Scilia categorical
1. Wipeout =taking
2. Must like physical occupations
3. No reciprocal advantage
4. Rarely happen so wont unduly burden
5. Heightened risk that private property pressed some form public
service under guise of mitigating serious public harm
xi. Avoids determining a firm rule in determining the denominator in
conceptual severance
xii. Background principles of state common law of nuisance

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 1. Weren’t part of the title to begin with
2. Legis v. court
a. Legislative determinations of nuisance do not fall into the
per se category if there is a total whip out – and into the
lucas per se rule
xiii. Follow up cases- some have had 98, 95 % takings, which go either way.
Will there ever be a real lucas case?
8. Palazzolo v. Rhode Island
a. A claimant does not waive his right to challenge a regulation as an
uncompensated taking by purchasing property after the enactment of the
regulation challenged.
b. The majority argued as follows:
i. The argument that a claimant who acquires property after the enactment of
a regulation waives the right to challenge such regulation as an
unconstitutional regulatory taking fails because
1. such a principle would make the constitutionality of a regulation a
matter of the passage of time, thereby creating a "[statute of
limitations]" on a constitutional right;
2. such a principle also prejudices owners at the time of regulation,
whose ability to transfer the land has become seriously impaired;
3. such a principle would create different and unequal rights between
different classes of owners (old owners and new owners).
ii. P had a corporation with many members at the outset- mostly wetlands –
would have had to dredge----corporation then became sole ownership and
then by operation of law the sole ownership was to the P (sole outright
ownership).
iii. Palazzolo—state supreme court said you cannot challenged the regulations
because
1. It was enacted before he became the owner
a. USSC this does not matter- if the regulations come before
of after you buy the property
2. No Penn Central distinct investment backed expectations (same
reason)
a. USSC- Remanded this
3. Not suffered total deprivation value (200k- upland parcel)
a. Supreme court agreed with this
iv. Conceptual severance- here the P waived this argument because he didn’t
make it at the lower court level
v. Background principles of law- regulations don’t count for this-
9. Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency
a. First English- where you have a period of time, when regs are in place and you
cannot build. Said this was a taking under lucas-
b. Here because of the regulations they wouldn’t be able to build for 32 months.
c. Lost at the trial level under penn central –did not appeal this ruling- because they
wanted a new categorical rule
d. Ends up saying this is not a total taking because of its temporary nature-

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 e. Tahoe v. First English-
i. First English is not whether there is a taking, but rather once you found a
taking, the entity cant just remove the regulations and allow you to build,
u have to be compensated for the temporary taking
f. Dissents-
i. Say gov physically occupies your property for a temporary period of time-
is this a taking? Per se taking. And you have to pay for that period of
time. (This has always been the case, i.e during war time). How to you
distinguish this with the case where you are not allowed to build?
ii. Time in tahoe was actually longer than the time in lucas
g. Post tahoe cases? Rolling mort
i. Vested rights statute- if you are able to build at a certain time, file a plat-
then even if they change the zoning regulations you are still allowed to
build

April 30th –
1) Statute of Limitations – When does your claim actually start?
a) Once the regulation is in place and once you know or should have known
2) Futility exception- Lucas, Pal, - no need to send in additional applications when they are just
going to be disregarded.
a) Facial – unconstitutional as applied to anyone, no matter what
b) Williamson county…san rio
i) Must go to the state courts
(1) State courts can decide federal constitutional issues
(2) Federal court must defer to st court decisions
(a) Can’t go to federal court
(b) Isn’t this weird. Takings is in the CONSTITUTION, but you have to go to
states first….unless, of course, the federal government is taking your land.
(i) Tucker act- established the court of federal claims and federal circuit. 6
year of SOL. 10% of court federal docket are takings claims. Keep in
mind, fed cir. Is more conservative than any fed appealed courts
(ii) Sec 1983-
3) Exactions- Tough regulations- to allow them to get
- Nollan v. California Coastal Commission
o If they had done this outside the permit- it would have been a taking
 “ Had CA simply required the Nollan’s to make an easement across their
beachfront available to the public on a permanent basis in order to increase
public access to the beach, rather than condition their permit to rebuild
their house on their agreeing to do so, we have doubt there would have
been a taking”
o Substantial advantage to the public interest
o Essential Nexus-
 In this case was not there. They are trying to accomplish something that
has no relation.

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- Standard of review- Sicilia uses a heightened on, Brenan said it should just be rational
basis
- Dolan v. City of Tigard
o Asks- what is the required degree of connection between the exactions imposed
by the city and the projected impacts of the proposed development
o Could have just come in and take the land- as a taking
o Is there an essential nexus between government’s legitimate interest and
conditions imposed?
o If there is, are the permit conditions sufficiently connected to the proposed
development’s impact?
 Dedication must be rather in both nature and extent to impact
o There has to be some sort of good evidence- real numbers as to say what the
impact is going to be on the person trying to get the permit and compare that to
the benefit to the community (cost/benefit analysis)
 “rough proportionality”
 Trend is going away from this toward impact fees- lingle- dicta- only
apply to “an adjudicative exaction requiring dedication of private
property”
o On remand- city ended up paying 1.5 million- could have purchased it before for
14k.

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