Foundation

s of
Property
Law

Where Do Property Rights Come From?

Rights of Landowners

Tensions in Property

Right to exclude v. Right of access

Privilege to use v. Security from harm
o
Use limited by environmental laws, etc
Power to transfer v. Power of ownership
o
How far into future can you control
property?
Immunity from loss v. Power to Acquire
o
Not immunized from loss, except for
eminent domain

Realists
o
Morals and law separate and distinct
Rights theorists
o
There is moral component to law
Utilitarians
o
Only look at social consequences
Social Relations theorists
o
Relationships among people are what
matter

Rights in Personal Property

Conquest
and
Distribution
by
Sovereign
Property
Rights in
Wild
Animals/Obj
ects

Doctrine of Discovery

Colonial power that first discovers land has exclusive

title
This is a legal realist view
All land transfers to sovereign

Capture Rule

Property rights in wild animals are obtained only

through physical possession (capture or kill)
occupancy
Possession/Capture
o
Majority actual capture required.

Actually kill/capture and

Dont own wild animals on land

EXCEPT
o
Immobile animals like clams, trees
Can exclude hunters from land

Capture Rule For Inanimate Object [Hayashi]

Normative Approaches

immediately take possession

Mortal wounding and not
abandoning pursuit may be
enough
o
Minority Reasonable prospect of capture
enough.
o
Custom may help define what capture is
Release or Escape After Capture
o
Usually ownership rights end when wild
animal escapes or released
o
UNLESS

far from native habitat, OR

tamed before release/capture

Rights Theorists
o
Natural Rights Theorists

There is extra-human source for

law
o
Labor-Desert Theorists (Locke)

Mixing labor with property gives

you rights
o
Individual Autonomy Theory (Hegel)

Rights are necessary for our ability

to be autonomous individuals
Legal Realists (Cohen)
o
Shaped view of property today
o
Property rights come from, and are
enforced by, the state

Finders of
Personal
Property

Pre-possessory interest
o
When you undertake significant but
incomplete steps to achieve possession,
but are interrupted by unlawful acts
Possession requires
o
Physical control, and
o
Intent to control or exclude from others
If neither party is wrongdoer, both have equal and
undivided interest in object

Who is a Finder?

First person to take possession of lost or unclaimed

property
Possession requires
o
intent to control property (or exclude from
others), AND
o
act of control

Categories (based on presumed intent of

original owner)

Abandoned property
o
Owner intentionally and voluntarily
relinquished right, title, interest
Lost property
o
Owner unintentionally and involuntarily
parts though neglect or inadvertence, and
doesnt know where it is.
Mislaid property
o
Owner voluntarily puts in a particular place,
intending to retain ownership, but fails to
reclaim it or forgets where it is.

Rights of Finder Against:

Intellectual
Property

Original Owner
o
Lost/Mislaid Property

Owner retains title

o
Abandoned Property

Finder acquires title

Third Persons Generally
o
Lost/Mislaid Property

Finders title superior

o
Abandoned Property

Finder acquires title

Landowner
o
Private Land

Within house or embedded

Landowners title superior

Otherwise

Unclear Could go either

way

Status of Finder

Trespasser
o
Finder doesnt
have right to
make claim to
found property
o
Public Land

Object usually considered mislaid

Owner/occupant prevails

Rights in News

Traditional
o
Knowledge, truths, conceptions, ideas
become free to use after voluntary
communication to others
INS v. AP (Labor and Investment)
o
Those who acquire news through
investment of labor, skill, money have
temporary quasi-property right in news
(against competitor) so long as news
retains commercial value
o
Law of Capture/First Possession

One who develops the news first

(compiled in a way as to distribute
for profit) has quasi-property
interest

Subject to:

Cant actually own the

news

Only property interest

against competitors
relativity of title

Trademark

Not constitutionally rooted; comes from common law

o
And Lanham Trademark Act

Looking for fanciful, arbitrary, or

suggestive mark

Trying to create a secondary

meaning of the mark

Definition
o
Name, symbol, or type of packaging that
identifies the producer of a good or service
o
Color can be trademarked in connection
with a particular type of product
Requirements
o
Distinctiveness
o
Non-functionality
o
First use in trade
Gives holder exclusive rights in that mark for
purposes of using that mark in the
economy/commerce
o
Usually limited locally
Time limit
o
None
When trying to find infringement
o
Is there consumer confusion about origin of
product?
o
Tarnishment
o
Blurring

Distinctive marks start to lose

association with company

Copyright

Constitutionally rooted, governed by federal statutes

Requirements
o
Covers original works

Facts are not copyrightable, but

the way facts are compiled and
arranged can be
o
Of authorship

Must be able to identify author

o
That are embodied in a tangible medium of
expression
Idea-Expression dichotomy
o
Ideas are NOT copyrightable
o
But expression of those ideas CAN be
Term of protection
o
Life of author + 70 years
o
UNLESS work for hire

95 years from first publication or

120 years from creation,
whichever is less
Limits
o
Fair use allows reasonable use without
owners consent

Purpose and character of use

Commercial weighs
against fair use

Transformative weighs for

fair use

Nature of copyrighted work

Goals
o
o
o

Tensions

Original works afforded

more protection than
derivative/compilations
Amount and substantiality of
portion used in relation to
copyrighted work as whole
Effect of use on the potential
market for copyrighted work

Promotion of learning
Protection of public domain
Exclusive rights of author

Property
Rights in
Body Parts

Patent

Rights in Body Parts Generally

Constitutionally rooted
Grants monopoly rights over inventions
o
Processes
o
Machines
o
Compositions of Matter
Term of protection
o
Up to 20 years
Requirements
o
Subject matter must be patentable
o
Novel
o
Non-obvious
o
Useful

Cultural
Property

Actor, politician, or other famous person has

property right to the exclusive use of his name and
likeness for financial gain
Comes from common law
Survives death of owner
Does not have to be commercially exploited by the
owner
Mere imitation may be actionable if done such that it
leads people to think they are endorsing the product
o
See Lanham Act

Definition

Tangible resources bearing a distinct relationship to

a particular cultural heritage or identity
o
(Modern) starting to include intangible
properties as well

Source of Law

Hague convention
o
Cultural Internationalism
UNESCO 1970
o
Cultural nationalism
UNESCO 2003
o
Extension to intangible objects
UN Declaration on Rights of Indigenous Peoples
US Statutes (Acts)

Replenishable parts can be

o
transferred
o
used
o
excluded from others possession
Non-replenishable or dangerous to remove parts
o
Usually cant be sold
Person has decision-making control over cells before
removal
o
After removal, no longer persons property

Rights in Human Eggs, Sperm, Embryos

Publicity Rights

Repatriation v. Preservation
Most of the time, repatriation is effectuated through
politics, not law
Humans as artifacts
Land as cultural property
o
Tied to religion
o
Tied to identity

Genetic Material
o
Treating as property

This is usually the case

Men can sell sperm

Women can sell eggs

NOTE: sometimes courts may not

do this to get an equitable result
[Hecht]
o
Treating as life
o
Middle status of special respect

Estates and Future Interests

Present
Estates

List

Fee simple absolute

Fee simple determinable
Fee simple subject to condition subsequent
Fee simple subject to executory limitation
Life estate/Determinable/SEL
o
Absolute
o
Defeasible
Fee tail
Tenancy for Years/SEL

Fee Simple Absolute

Characteristics
o
Duration is potentially infinite
o
No future interest
Creation
o
Common Law

Not default estate

O to A and his heirs

o
Modern

Default estate
O to A

Rights/Duties
o
Entitled to use estate forever
o
Entitled to sole possession
o
May transfer rights
O to A; O to A and heirs
o
and heirs just words of limitation

Tenancy for Years/Sub. to Ex. Lim.

o
o

Characteristics
o
Duration measured by life of one or more
specified people
o
Can be pur autre vie (for the length of
someone other than grantee)
Creation
o
Common Law

Default estate

O to A
o
Modern Law

Not Default estate

O to A for life; O to A for his

lifetime
Future Interest
o
In grantor

Reversion
o
In third person

Remainder
Rights/Duties
o
Cannot commit waste

Voluntary acts

Must maintain
condition/use of the
property as it was when it
was conveyed

Permissive acts (act of omission)

Cannot allow
deterioration and
reduction in value of
property

Ameliorative acts

Big improvement on
property

BUT cant do this if it

changes character of
property in such a way
that future estate holder
challenges it in litigation
o
Cant be willed (unless per autre vie)
o
Can be sold or given away
o
Can only transfer what she has
o
Must pay certain costs

Mortgage interest

To maintain status quo

O to A for 20 years
Future interest (grantor)
o
Reversion

Fee Simple Determinable (grantor)

Life Estate/Determinable/Sub. to Ex. Lim.

Taxes and insurance on property

Future interest in grantor

o
Possibility of reverter
Automatic transfer to grantor
o
Adverse possession time starts right when
present estate ends
Language of time/duration
o
so long as
o
while
o
during
o
unless
Ambiguity results in FSSCS presumption against
forfeitures
Rights/Duties
o
Cannot commit waste
O to A so long as property is used as school

Fee Simple Subject to Condition Subsequent

(grantor)

Future interest in grantor

o
Right of entry
Doesnt automatically transfer to grantor
o
Must take some action
o
Adverse possession time doesnt start until
ejectment action
Language of event/condition
o
on the condition that
o
but if
o
provided however
o
provided that
o
if
Ambiguity results in FSSCS presumption against
forfeitures
Rights/Duties
o
Cannot commit waste
O to A on the condition that the property is used as
a school

Fee Simple Subject to Executory Limitation

(third party)

Future interest in third party

o
Executory interest
Automatic transfer to third party
o
Adverse possession time starts right when
present estate ends
Language of condition/time/etc
o
Doesnt have to be too specific

Rights/Duties
o
Cannot commit waste
O to A and heirs, as long as property is used as park.
Should property cease to be used as park, to C

Fee Tail

O to A and the (male) heirs of his body

Common Law
o
Future interest (grantor)

Reversion
o
If A tries to sell property

Dis-entails the Fee Tail

Reversion disappears

Buyer has FSA

Today
o
Doesnt really exist
o
(Majority) Just taken to be FSA
o
(Minority) A gets LE, As bloodline gets FSA
- compromise

Hostility Towards Defeasible Estates

Mere words of intent/purpose of grantor do not limit

granted estate
o
e.g. for the purpose of...
o
Just precatory language
o
If creates too much ambiguity to put in
FSSCS or FSD, then interpreted as FSA!
Words of covenant or promise do not limit
o
e.g. ...grantee promises to use land only
for hospital...
Ambiguous terms tend towards absolute estates

Restriction on Use: Waste

Presumption against Forfeitures

o

If can avoid causing a disruption in ownership of

property, should do so

Restrictions on Transfer: Rule Against Restraints

on Alienation

Fee Simple (absolute OR defeasible)

o
Any total restraint on alienation is null,
regardless of form

(Majority) Including consent

clauses

(Minority/Modern) Consent clauses

might be ok, if reasonable (below)

Repugnant to the fee

o
Partial restraint OK if reasonable

Reasonable restraints. Look at:

If unlimited duration

If capricious, or has
purpose

Whether it is given to
charitable entity
o
More leeway

given if so
Modern/restatement: move towards
reasonableness look at whos consent we
are seeking

Developers who are out of picture,

NOT reasonable

HOA/condo restraint OK when

Must act reasonably, AND

in form of pre-emptive
rights
o
FMV transfer to
HOA, OR
o
HOA must match
offers made
Life Estate
o
Greater restrictions allowed on alienation
Trusts
o
Restrictions generally upheld
o
BUT modification can be made if intent of
trust was general

Cy pres
Goals
o
Promoting efficiency
o
Promoting liberty of land owners
o
Promoting equality
o
Care about what grantor wants to do with
their land
o

Concurrent
Ownership

Affirmative Waste
o
Voluntary acts significantly reduce value of
property
Permissive Waste
o
Stems from inaction
o
Failure to repair, resulting in substantial
loss
o
Failure to pay property taxes, assessments,
mortgage, and related expenses necessary
to preserve estate for future interest owner

Types of Concurrent Estates

Tenancy in Common
Joint Tenancy
Tenancy by the Entirety

Tenancy in Common

Characteristics
o
Each co-owner holds undivided, fractional
share of entire parcel
o
Each entitled to simultaneous
possession/enjoyment of whole
o
No right of survivorship

A dies, As heirs/devisees get As

interest
Creation

Default estate to two or more unmarried

people
o
to A and B; O to A and B as tenants in
common; O to A interest, to B
interest
o
Also created when

severance ends joint tenancy

divorce ends tenancy by entirety

Transferability
o
No consent required
o
Transfer doesnt end estate
o
Co-tenant may freely transfer their interest
Termination
o
(also below)
o
Voluntary contract
o
Judicial partition
o
Restraints on ability to destroy

OK if reasonable
o

Characteristics
o
Equal fractions, undivided interest
o
Each tenant has right of survivorship

When JT dies, his interest is

immediately transferred to
remaining tenants in equal shares

If all tenants die simultaneously,

estate is treated like a tenancy in
common
o
Was default estate at common law
Creation
o
Common Law

Requires 4 unities

Time
o
Acquired title at
same time

Title
o
Acquired title by
same instrument

Interest
o
Equal fractional
interests
o
And must last
the same
amount of time

Possession
o
Equal rights to
possession of
entire parcel

If 4 unities arent met

Default to Tenancy in
Common
o
Must be explicit in creation

...as joint tenant...

Transferability
o
Essentially inalienable as joint tenancy

Cant be willed b/c interest ends at

death
o
No consent required
o
Interest ends at death
o
Any conveyance will break unities and
sever tenancy

Grantee gets tenancy in common

interest

But remaining JTs are still joint

tenants (if more than 1 remain)

Tenancy by the Entirety

Joint Tenancy

...as joint tenants with right of

survivorship...

Characteristics
o
A form of joint tenancy
o
Requires 4 unities, plus valid marriage
o
Right of survivorship
o
Can be terminated only by:

divorce

death of spouse

agreement of both spouses

o
Doesnt exist in very many jurisdictions
anymore
o
Can be partitioned only by divorce
Creation
o
Default estate to married couples

[some states] require explicit

intent ...as tenants by the
entirety...
o
Five unities
o
Conveyance to unmarried people

joint tenancy, OR

tenancy in common
Transferability
o
Consent of spouse required
Rights of Creditors
o
[Majority] Neither spouse owns a separate
interest in property that can be conveyed
to, or reached by, creditors

Rights and Duties of Cotenants

Right to Possession (w/o interfering with rights of

cotenants)
o
Co-tenants are not liable to eachother for
rent

EXCEPT:

Ouster when co-tenant

in possession refuses
shared possession of
another co-tenant with
affirmative act, OR

(sometimes) Constructive
ouster property too
small to be physically
occupied by all owners,
etc.

Ousted tenant entitled to share of

fair rental value
Right to Rents and Profits
o
Each entitled to share of rents received
from third party

Only if co-tenant affirms the lease

thereby waiving their right to
possess the property
o
Each entitled to share of profits from
natural resource exploitation
Can encumber/transfer interest without consent
o
Lessee steps into shoes of lessor, and has
exactly what lessor had
Liability for Mortgage and Tax Payments
o
Each obligated to pay share of mortgage,
tax, assessments, etc that could give rise to
lien if unpaid
o
EXCEPT if cotenant in sole possession

sole possessor cant recover for

these payments unless they
exceed propertys reasonable
rental value
Liability for Major Repair and Improvement Costs
o
Cotenant who pays for
repairs/improvements not entitled to
contribution from other tenants (unless
prior agreement)
Basic Maintenance and Repair
o
More commonly shared
o
(some courts) Impose duty to pay on
cotenants
o
(some courts) Dont impose duty to pay on
cotenants
Liability for Waste
o
Cotenant liable for waste for using property
unreasonably if it causes permanent injury

Future
Interests
Held by
Grantor

Severance of Joint Tenancy

o
Conveyance of Joint Tenants Entire Interest

Results in Tenancy in Common

Modern: Can convey to self as

tenant in common

If more than 2 joint tenants, nonconveying tenants remain joint.

New tenant is tenant in common.
o
Lease/Mortgage Executed by One Joint
Tenant

Lease

Majority: lease doesnt

Partition
o
Any cotenant (joint or common) can seek
judicial partition which ends cotenancy
o
Partition in kind

Physical division
o
Partition by sale

Property sold and proceeds

divided by share

Three Types

Termination of Concurrent Estates

sever. But lease ends

when lessor cotenant
dies.
o
b/c theres no
more interest for
lease to attach
to since lessors
interest dies at
death

Minority: lease does sever

JT.

Mortgage

Traditional (mortgage
transfers legal to
mortgagee)
o
Severs

Modern (mortgage
creates a lien)
o
No severance
Agreement Between Joint Tenants

May be severed by agreement of

all cotenants

Reversion/SEL
o
LE, Tenancy for years, fee tail, contingent
remainders
o
Automatic
Possibility of Reverter
o
FSD
o
Automatic
Right of Entry
o
FSSCS
o
Not Automatic
o
No time limit to assert, BUT

Subject to Laches, so cant wait

too long to assert entry rights

Transfer of Interest

Reversion
o
Freely transferrable
POR, ROE
o
Common law

Only transferable through

intestate succession
o
Modern

Freely transferable

NOTE: transfer doesnt change name of interest

Right to Prevent Waste

Future
Interests
Held by
Third Party

VRSPD

Reversion
o
Reversion holder may get damages for past
waste by present estate holder, and enjoin
future waste
POR, ROE
o
Can only enjoin actions that prudent owner
of FSA would not have performed

Two Types

Remainder
o
Vested

Absolute/LE/TY
Subject to Total Divestment
Subject to Open (Subject to Partial
Divestment)
o
Contingent/LE/TY
Executory Interest
o
Springing/LE/TY
o
Shifting

Remainder

Remainder and prior estate must be created by

same instrument
Waits patiently for prior estate to naturally
terminate
Can only follow: LE, FT, Term of Years
Cannot have time gap btw end of prior estate and
when remainder becomes possessory
Types
o
Vested

VRA/LE/TY

Identity of remainderman
is certain at time of
conveyance

Not subject to any

condition/limitation for
vesting, or has already
been met

O to A for life, then to B

VRSTD

Identity of remainderman
is certain at time of
conveyance

Certain to become
possessory unless some
specified event occurs

Condition for vesting has

been met at time of
conveyance

O to A for life, then to B.

But if B doesnt graduate
law school, to C

VR in one or more
ascertainable members of
a class that may be
enlarged by addition of
presently unascertainable
persons
Identity of holder is
certain, and certain to
become possessory
Size of interest holders
share uncertain
O to A for life, then to Bs
children
o
At this time, B
has one child
o
Unborn children
have executory
interest

Contingent/LE/TY

Either:

subject to condition
precedent, OR

created in an
unascertainable person

O to A for life, then to first child of

B (B has no child at time of
conveyance)

O to A for life, then to Bs first

child to reach 18 (B has no child
thats 18 at time of conveyance)

Executory Interest

Future interest that cuts short another estate or

interest
Also when gap in seisin
o
When estate goes back to O before it goes
to other third party
Types
o
Shifting

Divests another grantee

O to A as long as property is used

as school. Otherwise to B.

O to A for life, then to Bs children

(B has Connie at time of
conveyance)
o
Springing/LE/TY

Divests the grantor, following a

gap in time where no other
grantee has right to possession

O to A for life, then 1 year

following As death, to B

O to A upon As marriage

Right to Prevent Waste

Vested
o
Compensatory damages
o
Injunction
Contingent
o
Injunction
Executory Interest
o
Very rare injunction

Class Gifts and Rule of Convenience

o

Rules
Affecting
Transfer of
Property

Doctrine of Worthier Title

Traditional
o
If grantor conveys to one party, and
o
by same instrument conveys the following
remainder/executory interest to grantors
heirs, THEN

grantor retains reversion, and

heirs receive nothing

Modern
o
Rule of construction allows grantor to
explain what they were really trying to do
o
Tries to effectuate their intent
O to A for life, then to Os heirs

Rule in Shelleys Case

Traditional
o
If conveyance is LE/FT/Tenancy for Years to
S, and
o
Creates contingent remainder in Fee Simple
to Ss heirs, THEN

Future interest is extinguished in

heirs

S has now owns the future interest

o
O to A for life, then to As heirs

Destructibility of Contingent Remainders

Doctrine of Merger

Rule of Convenience
o
A class has to close at the conclusion of the
prior estate
o
O to A for life, then to Bs children (X alive
at time of conveyance)

The children class closes at As

death
o
Also, gives a person their whole life to meet
a condition

NOTE: Future interest labeling doesnt take into account

parties fertility

Common Law
o
CR is destroyed if it fails to vest when
preceding estate ends
o
O to A for life, then to B when shes 21 (B is
5 at conveyance, 19 when A dies)

Bs CR is destroyed when A dies

because it hadnt vested yet

Modern
o
Dont destroy interest
o
Let property go back to grantor
o
Using same example as above, when A dies
we have

A = LE

B = Springing Ex. Int.

O = Reversion SEL

If, after
o
o
o

conveyance:
grantee has present interest, and
grantee has future interest, and
no intervening vested interest, THEN

interests are merged into FSA

Presumption Against Creation of New Estates

o

Must fit an estate into an existing category

Landlord and Tenant

Introductio
n

Four Categories of Leasehold Estates

Term of Years
Periodic Tenancy
Tenancy at will
Tenancy at Sufferance

Term of Years

Nature
o

Last for period of time either

fixed in advance, or

computed using formula agreed to

in advance
Termination
o
Automatically expires at end of period

No need for any notice

o
Can terminate by agreement
o
LL may terminate if

tenant breaches

or other circumstances/triggering
events in lease
o
Death of either party DOES NOT terminate
At end of tenancy
o
LL has reversion, OR future holder has
remainder

Periodic Tenancy

Nature
o
o

Lasts for initial fixed period of time

Automatically renews for additional equal
period of time, until termination
Termination
o
Common Law

LL or tenant can terminate with

oral/written notice
Notice equal to the period required
Notice terminates tenancy on last
day of fixed period, not in the
middle

So time > period from

notice to termination may
happen
Death doesnt end tenancy, but
upon death there usually isnt
renewal

Tenancy at Will

Nature
o
No fixed duration
o
Lasts only as long as LL/tenant desire
o
Can be orally created
Termination
o
Common Law

Ends whenever LL/tenant chooses

No need for advance notice by

either party

Just need to provide

notice to terminate
immediately

Death of either party ends tenancy

o
Statutory

Usually requires advance notice

Landlords Transfer of Property

Nature
o

Arises when person in rightful possession of

land wrongfully continues in possession
after that right ends
o
The tenant does NOT become a trespasser
Termination
o
No notice or action by LL needed to
terminate
o
LL may evict at any time
Most Common: Holdover Tenant
o
Tenant who remains in possession of leased
land after lease ends
o
Common law

LL, at his discretion, can

evict tenant, or

hold tenant to new

tenancy
o
Length of new tenancy

Common law (& modern minority)

Defined by length of
original tenancy

New tenancy is renewal

of old tenancy

Does not terminate lease

Property is transferred subject to lease

Modern View of Lease: Conveyance, Contract,

Both?

Tenancy at Sufferance (Holdover Tenant)

Modern

Max term is 1 year

Majority
o
New tenancy is
periodic
LLs actions

Can expressly notify tenant of

choice

Can be implied from LLs conduct

and surrounding circumstances

(Majority) LL accepting
payment from tenant for
holdover period shows
LLs desire to have new
periodic tenancy
o
UNLESS maybe
LL makes it clear
on check that he
doesnt want this

Creation of
Tenancy

Trend towards contract

Thus, lease imposes continuing duties on both LL
and tenant
Examples
o
LL must maintain habitable conditions
o
Tenant has no obligation to pay rent if
structures crucial to lease destroyed
o
Tenant may terminate and stop paying rent
if LL materially breaches
o
LL obligated to mitigate damages
Courts more tenant-friendly in residential context
compared to commercial

Landlords Duty to Deliver Possession

Minority
o
LL merely needs to deliver right to
possession to tenant when lease term
begins
Majority
o
LL must deliver actual possession to tenant
when term begins (in addition to right to
possession)

LL must put any restrictive covenants that exist on the land

in the lease

Tenants Remedies

If property isnt ready, can

o
Say LL has materially breached, and

10

Rights of
Landlords

Condition of
Leased
Premises

terminate lease

Try to get damages

o
Affirm the lease, but withhold rent for
period cant get into property
Right to receive rent
Premises to be intact and not damaged
Reversion
o
Right to get property back at end of lease
No duty to renew lease
Right to evict tenant
o
ONLY IF material breach (e.g. non-payment
of rent)
o
Limited by:

anti-discrimination

rent control

federal housing laws

retaliatory eviction

or consents to
such conduct

Repairs

Common law
o
If no lease provision on repairs

Tenant must make minor repairs

o
Lease assigns Repairs to Tenant

o
Lease assigns Repairs to Landlord

Constructive Eviction (Covenant of quiet

enjoyment)

Nature
o

LLs wrongful conduct that substantially

interferes with tenants beneficial use and
enjoyment
o
Provides tenant with new remedy for LLs
breach of existing duty
o
Residential and/or Commercial
Elements
o
Wrongful Conduct

Acts/Omission of LL

Any affirmative act of LL

that seriously interferes

Omission wrongful only

when theres a duty to
act

Duty can come be

implied, express, or
statutorily imposed

Conduct of Third Parties

Traditional
o
LL not
responsible for
conduct of 3rd
parties that
interferes with
quiet enjoyment,
unless LL causes

Modern
o
LL responsible if
he has legal
right to control
3rd party
conduct (from
lease, statute)
o
(minority) LL
responsible if
hes in a position
to control those
actions, and if
third party is in
relationship with
LL
o
Substantial Interference

Definition

Must be so major that

reasonable person would
conclude dwelling is
uninhabitable; or
unusable for normal
business (commercial)

Factors

Seriousness of defect

Impact on habitability

Length of time of defect

LLs response to tenants

notice

Conduct of tenant

Could premises be
habitable at all?

Partial Constructive Eviction

Majority
o
Tenant who
remains in
partial
possession cant
claim
constructive
eviction

Minority (usually
commercial)
o
Tenant need only
vacate the part
of the premises
that is interfered
with
Remedies/Procedure
o
Terminate lease and sue for damages

Must take three steps first:

give LL notice of
interference

11

allow reasonable time for

LL to cure

vacate premises within

reasonable time

This is only way to use this as

defense for non-payment of rent
Remain in possession and sue for damages
(not sure about this prong)

Affirm lease, remain in possession,

sue LL

This is for breach of implied

covenant of quiet enjoyment

NOT defense to non-payment of

rent

o
o

Implied Warranty of Habitability

Nature
o

Assigns burden of repairing residential

premises to LL, regardless of provisions in
lease
o
Usually cant be waived
o
Doesnt apply to commercial leases at the
moment
o
Residential only
Scope/Elements
o
Elements

Violations existed during entire

period rent isnt paid, AND

Violations made premises

uninhabitable
o
Objective test: defects must be so serious
that reasonable person would find premises
uninhabitable
o
(Minority): use housing codes as yardstick
o
(Majority): premises must be fit for human
habitation, meet bare living standards, etc

Violation of housing code may be

taken into account
Procedure
o
Tenant must first:

Provide LL with notice of defect

Must be specific enough

to inform LL of nature of
defect

Allow reasonable time for repairs

NO NEED TO MOVE OUT

Remedies
o
Remain in possession and withhold rent

Majority

Can withhold all rent

Court will later determine

amount of rent to pay
back
o
Remain in possession and use rent
abatement

o
o
o
o
Waiver
o
o

Transfer of
Leasehold
Interest

Remain in possession and use repair and

deduct
Remain in possession and sue for
damages/injunction

Measure of damages

Difference btw rent and

fair market value

Difference btw fair market

value as warranted and
fair market value as is

Percentage diminution in
agreed rent
Terminate lease and sue for damages
Administrative remedies
Criminal penalties
Compensatory damages
Majority

Cannot be waived
Minority

Where warranty comes from

statute, may be waived in some
circumstances

Tenants Transfer

Assignment; or
Sublease
Test to figure out which one
o
Majority: All or less than all?

If tenant transfers right of

possession for entire remaining
term of lease

Assignment

If only part of remaining term is

transferred

Sublease
o
Minority: Intent of parties

If tenant/new tenant wanted to

create new LL-tenant relationship

Sublease

If they wanted tenants existing

rights to transfer to new tenant

Assignment

Assignment

A = lessor, B = lessee (originally)

B = assignor, C = assignee (at time of assignment)
At time of lease, A and B are in
o
Privity of contract, and
o
Privity of estate
At time of assignment
o
B and C are in

Privity of contract

B or C liable to the other

if one breaches terms of

12

Rights
o

their K
A and B are in

Privity of contract

A or B liable to other if
one breaches lease

No Privity of estate

Destroyed b/c B has

transferred entire interest
A and C are in

Privity of estate

A and C may sue

eachother if original lease
is breached

No Privity of Contract

Unless C expressly agrees

to assume Bs obligations
under lease
and Duties
Assignee and lessor obligated to perform
covenants of original lease that run with
the land. Requirements:

Original lease parties intend

successors be bound by covenant

Covenant touch and concern land

Assignee have notice of covenant

before acquiring interest
A,B,C (as above)

Who is liable if rent not paid to A?

Both B and C

B liable under privity of K

C liable under privity of

estate for breach of rent
covenant in original lease

B may sue C to recover for Bs

liability to A above

Privity of K

C may sue A directly if A breaches

covenants of lease

Privity of estate

Successive Assignments

Anyone who assumes covenants of lease is liable

Original lessor is liable
o
Privity of K
Final assignee is liable
o
Privity of estate

Sublease

Two separate landlord/tenant relationships

A = lessor, B = lessee (originally)
B = sublessor, C = sublessee (at time of sublease)
At time of lease, A and B are in
o
Privity of contract, and
o
Privity of estate

At time of sublease
o
A and B are in

Privity of K

Privity of estate

B liable to A if C breaches terms of

original lease
o
B and C are in

Defined by terms of sublease (not

original lease)

Privity of K
o
A and C are in

No privity of K

No privity of estate
Rights and Duties
o
A,B,C (as above)

Who is liable if rent not paid to A?

B liable under
o
privity of K, and
o
privity of estate

C not obligated to pay

rent to A
o
Sublessee not obligated to perform any
covenant of original lease, with exceptions:

If Bs covenants in original lease

bind successors as equitable
servitudes, A can enforce against
C

(some courts) allow suit

to enforce covenants to
pay rent

(some courts) dont

A may sue B under third party

beneficiary theory

C may want to avoid Bs breach of

lease, b/c termination of original
lease automatically terminates the
sublease

Tenants Right to Assign or Sublease

Tenants free to assign, sublease, or otherwise

transfer interests, absent agreement to contrary.
Lease term possibilities
o
Lease prohibits transfer

Interpreted narrowly, but

enforceable

Traditional

No assignment doesnt
preclude sublease

No sublease doesnt
preclude assignment

Modern

Go off parties intent

o
Lease allows transfer IF landlord consents

13

Sole Discretion Clause

Gives lessor discretion to

approve/deny transfer

Arbitrary consent ok
o
Both commercial
and residential

BUT, anti-discrimination
laws limit

Reasonableness Clause

Lessor may deny consent

only on objective,
commercially reasonable
basis

Factors
o
Financial
responsibility of
transferee
o
Nature of new
use proposed
o
Suitability of use
for premises
o
Legality of use
o
Need for
alterations to
premises
o
Whether use will
compete with
LLs business or
other existing
tenants

No Standard Specified: Silent

Consent Clause

(Majority) Traditional
o
Sole discretion
standard applies

(Minority, growing)
Modern rule
o
Reasonableness
standard for
commercial
(commercially
reasonable)
o
Sole discretion
for residential
Lease Silent

No problem of transfer
Implied Waiver of Consent Requirement

o
o

Termination
of Tenancy

Surrender

Tenant and landlord agree to terminate the lease

Tenant surrenders premises
L accepts the surrender

Abandonment

Abandonment occurs when tenant:

o
vacates leased premises without

justification
o
lacks present intent to return, and
o
defaults in payment of rent
Rights of Landlord When Tenant Abandons:
o
Dont re-rent apartment and hold tenant
liable

Common law

Tenant liable for entire

lease term

Modern

Must try to mitigate

damages

But LL can still be made

whole

Universal in residential
context
o
A little less so in
commercial
context
o
Accept tenants surrender

LL must mitigate damages

Tenant can be sued for

Back rent

Compensatory damages
from breach
o
Re-let on tenants account

Tenant still liable for damages

through end of original lease

Damages usually difference

between rent amount in lease and
fair rental value

LL must mitigate

Must make clear to tenant youre

not accepting surrender

(some) re-letting is
acceptance

(some) theres no
presumption

(some) must tell tenant

that not accepting
surrender

Landlords Right to Terminate Lease

Periodic Tenancy
o
In General

Common Law

Can terminate at any

time, with notice

Modern

Cant terminate for

discrimination or
retaliation

Can terminate based on

material breach by tenant

14

Otherwise, free to
terminate with notice
o
Retaliatory Eviction

Protects tenants exercise of rights

to secure decent housing

Landlord may not retaliate against

tenant for protected tenant
conduct

Can evict someone for a legitimate

business reason

NOTE: wanting to remove

non-paying tenant is not
legitimate purpose

States have responded

with statutes to deal with
this problem of never
being able to evict

To be brought up as defense

Eviction must be related

to activities of tenant
incidental to tenancy

Proof

Majority: Presumption
o
If landlord takes
prohibited action
within a certain
period after
tenant engages
in protected
conduct,
presumed to be
retaliatory
o
Burden shifts to
LL to prove
action was not
retaliatory

Mixed Motivation (3 views)

Majority: Retaliation only

needs to be dominant
purpose

Retaliation must be sole

motive

Any retaliatory motivation

is enough
o
(Minority) Good Cause Eviction

LL may evict a periodic tenant only

for good cause
Term of Years Tenancy
o
Landlord want to end lease in middle of
term based on tenants breach

Common law

Cannot terminate lease

due to tenants breach

Only damages available

Modern

May terminate if tenant

materially breaches

Trivial breaches: only

damages
Landlord refuses to renew lease

LL has no obligation to renew a

lease

Self-Help Eviction

Common Law
o
Landlord can evict tenant by force
o
But only reasonably necessary force
Modern
o
Landlord MUST evict through judicial
process
o
No self-help

Summary Eviction Proceedings

Special expedited procedure to recover possession

from breaching tenant

Transfers of Land Title

Adverse
Possession

Requirements
Occupant gets title if possession is:

actual
o
Majority

Physically use particular parcel as

reasonable owner would

Depends on nature,
character, location of
land, and uses to which it
may be devoted
o
Exception: Color of title (constructive
possession)

Adverse possessor has claim to

land based on defective document
(invalid deed/will)

can be invalid b/c of lack

of signature, incorrect
description of land
boundaries (as long as
surveyor can ascertain
boundaries with extrinsic
evidence on ground), etc

Actual possession of part of land

- constructive possession of
entire parcel

exclusive
o
Possession not shared with true owner
o
(Majority) Absolute exclusivity not needed:
Just as exclusive as owners normal use for
such land
o
(Minority) Absolute exclusivity required

open and notorious

15

Acts are so visible that they would put true

owner (objective standard) on notice of
your occupation
adverse (or hostile) under a claim of right
o
Non-permissive use
o
If true owner silent presumption is not
permissive
o
(Majority): no state of mind requirement
o
(Minority 1): only good faith users will get
title
o
(Minority 2): only bad faith users will get
title
and continuous
o
Only as continuous as reasonable owner

Depends on location, nature,

character of land
o
Continuity ends when

True owner reenters land and

takes possession in open and
notorious manner

Action of ejectment stops clock

o
Tacking

Successive periods of adverse

possession by different persons
can be combined to satisfy
statutory duration if:

The successive claimants

are in privity with each
other

i.e. when one claimant

transfers possessory
rights to another, usually
by purporting to transfer
title
for the statutory period
o
Common Law

No tolling
o
Statute

May provide for tolling

o

Owners and Neighbors

Nuisance

Private Nuisance
o

A substantial and unreasonable interference with the

use and enjoyment of land
Nontrespassory invasion of anothers interest in
private use and enjoyment of land
o
Non-physical invasion
o
NOTE: semi-physical invasions (odor,
smoke)

Trend is to allow action under

trespass and nuisance
Categories
o
Nuisance Per Se

Something always considered a

nuisance
Usually an activity prohibited by
law
Nuisance Per Accidens

Something thats a nuisance only

because of the surrounding
circumstances

It is lawful activity otherwise

Temporary Nuisance

Any, non-permanent nuisance.

Permanent Nuisance

Where nuisance is certain or likely

to continue into future due to
physical nature of condition, cost
of abatement, or other factors

o
o

Elements

Intentional
o
Either acting for purpose of causing harm,
or
o
Knowing that the harm is certain or
substantially certain to result from his
conduct, or
o
(sometimes) reckless conduct, or
abnormally dangerous activities
Non-trespassory
Unreasonable, and
o
Traditional

Serious injury to P

Multi-factor test

Character of
neighborhood

Nature of wrongful
conduct

Proximity to Ps property

Frequency, continuity,
duration

Nature/extent of resulting
injury

Utility of Ds conduct
o
Restatement

Basic test: Balance of utilities

Unreasonable when
gravity of harm
outweighs utility of
actors conduct

Gravity of harm
o
extent of harm
o
character of
harm
o
social value of
Ps use and
enjoyment
o
suitability of use
or enjoyment

16

Utility
o
o

invaded to
character of
locality
burden on P of
avoiding harm
of Ds conduct
social value of
primary purpose
of Ds conduct
suitability of
conduct to
character of
locality
Impracticability
of
preventing/avoid
ing interference

Public Nuisance
o
o
o

Substantial interference
o
If normal person living in community would
regard interference as strongly offensive or
seriously annoying
With the use and enjoyment of Ps land
o
Clearly met if Ds conduct causes physical
injury to Ps land tangible personal property
located on land
o
Also if conduct causes substantial harm to
persons on land
NOTE: acting in bad faith (spite fences) leads more
towards finding a nuisance

Defenses for Private Nuisance

P consented or acquiesced to nuisance
Laches
D has continued nuisance for sufficient time to
acquire prescriptive easement for conduct
Statute of limitations
Coming to the Nuisance
o
Ps coming to the nuisance is not full
defense
o
Usually a factor in determining
reasonableness

Injunction when
o
D's conduct is unreasonable (causes more
social harm than good) and causes
substantial harm to P
Damages, but no injunction, when
o
D's conduct is reasonable, but harm to P is
substantial so that it is unfair to burden P
with the costs of D's socially useful conduct
No remedy when
o
Harm to P is not substantial
o
D's conduct causes more social good than
harm, and it is not unfair to impose the

Unreasonable interference with a right common to

the general public
Usually, P is gov't entity bringing suit on behalf of
public
But private party may bring suit if harmed in kind
different from general public

Light and Air

o

Trespass

Theres no general right to free flow of light/air

across the land of a neighbor, as long as the
neighbors structure is built for a useful and
beneficial purpose
o
UNLESS theres some statute or agreement
to the contrary
NOTE: US courts have rejected Ancient Lights
o
Gave right to free flow of light/air (negative
prescriptive easement) if youve had it for
20 years

Right to Exclude
o
o

Remedies

costs of D's activity on P

The imposition of damages would put D out
of business and avoiding this result (b/c of
social value of D's conduct) is more
important than preventing harm to P
Purchased injunction if
o
D's conduct causes more harm than good;
but it is fair to impose the cost of shutting
down D's activity on P

e.g. when P comes to the nuisance

o

One of most essential sticks in bundle of rights of

property
Common Law Baseline
o
Absolute right of exclusion, UNLESS

(Majority) Innkeeper or common

carrier

Must have reasonable

reason for excluding
people

(Minority) Any business open to

public

Must have reasonable

reason for excluding
people
o
NOTE: Limited by anti-discrimination laws

What is Trespass
o
o
o
o

Any intentional and unprivileged entry onto land

owned or occupied by another
Mistake is not a defense
Must merely intend to enter onto land as matter of
free choice
Also liable if causes thing or third person to enter
land

17

Exceptions
o
Landowners consent

Licensee one who has been

invited in

Licensor the one who invites in

o
Necessity

Requires harm being avoided is

greater than harm caused by
trespassing
o
Emergency
o
Public policy

Access to graves

Good/Bad Faith Improvers

o

Remedies for Civil Trespass

o

o
o

Damages
o
Nominal
o
Compensatory

To compensate for injury

o
Punitive

If D acts maliciously and causes

harm
Injunction (equitable relief)
Declaratory judgment
o
Court just declares whos right/wrong

Criminal Trespass
o
o

Depends on statute
Remedies are criminal in nature

Reasonable Access
o
o

Right to exclude is not absolute, but relative

Law must accommodate between right of property
owner and right of individuals who are parties with
him in consensual transactions relating to the use of
the property
o
Extent to which property has been opened
up has to match the access to which
property is available
o
e.g. if you open land up to migrant workers,
you need to allow access for things related
to that (medical care, legal aid, services for
migrants, etc) [Shack]

Encroachments
o
o

Permanent or continuing trespass caused by

construction of building or other improvement that
partially extends onto anothers land
Traditional View (Minority)
o
Owner could

obtain injunction forcing

trespasser to remove
encroachment, or

recover damages from trespasser

Modern (Majority) Relative Hardship Doctrine
o
Good-faith mistake

If harm is minimal, interference

with true owners property interest
is small, costs of removal are
substantial, THEN

Usually wont force

removal

Just monetary damages

Intentional encroachment

Injunction available, regardless of

cost

Surface,
Subsurface,
and Air
Space
Rights

Building entire structure/improvements on others

land
Bad faith action
o
Trespasser loses ownership of
improvements without compensation
Good faith mistake
o
Some states (Majority)

Landowner on whose property the

building is built owns the building
o
Other states (Minority)

Owner must compensate improver

for enhanced value of land, or

Owner must sell land to improver

for fair market value before
improvement.

Subsurface Rights

Ownership: How far down?

o
Common law

Own all soil below land

o
Modern

Still protect against third party

intrusion
Mineral rights
o
Hard Minerals

Whoever owns the land surface

also owns the minerals in place
under the surface

NOTE: surface ownership and

subsurface mineral rights can be
split off
o
Fugitive Minerals Oil, natural gas (two
models)

Non-ownership theory (Minority)

Surface owner doesnt

own oil under land

Merely has right to

capture it

Actual capture provides

ownership

Ownership-in-place (Majority)

Surface owner owns all oil

in place under surface

18

pre-possessory
interest and
absolute title

Loses ownership if other

captures oil first
LIMITATION TO BOTH ABOVE

Correlative Rights
Doctrine - Surface owner
entitled to reasonable
opportunity to extract a
just and equitable share
of the oil/gas in pool
o
legitimate
o
reasonable
o
conservation
statutes
o
cant be wasteful
o
(all derive from
negligence)
o

Rights in Airspace: How High?

Common law
o
Ownership extends to the heavens
Modern
o
Owns air space reasonably necessary for
use or enjoyment of the property

Five Categories
1.
2.
3.
4.
5.

Definitions

Non-possessory right to use land in the possession

of another.
Interest in land, not just contract right
Burdens land possessed by another
Dominant estate
o
Land benefited by easement
Dominant owner
o
Possessor of dominant estate
Servient estate
o
Land burdened by easement
Servient owner
o
Possessor of servient estate
Types
o
Affirmative

Authorizes holder to do particular

act on servient land

Most are affirmative

o
Negative

Authorizes dominant owner to

prevent servient owner from doing
act on servient land
o
Appurtenant (intent of parties determines)

Benefits easement holder in using

dominant estate

Attached to dominant estate, not

Express Easements
Easements Implied from Prior Existing Use
Easements by Necessity
Prescriptive Easements
Easements by Estoppel

Express Easement

Land Use Controls Private

Easements

particular owner
Requires

Dominant estate, AND

Servient estate

Preferred to In Gross
o
In Gross (intent of parties determines)

Benefits easement holder in

personal sense

Attached to holder, not land

No dominant estate exists, only

servient estate
Presumed to be appurtenant

Nature
o

Voluntarily created in deed, will, or other

written instrument

Creation
o
Be in writing
o
Identify the grantor and grantee
o
Contain words manifesting intention to
create easement
o
Describe affected land, and
o
Be signed by grantor

Easements Implied from Prior Existing Use

o

Nature
o
o
o

Intent of easement inferred from existing

use
Wont arise if express intent to contrary
If its the grantor reserving an easement

Higher burden because of higher

knowledge should have put it in
deed

Creation
o
Severance of title to land held in common
ownership

At least 1 parcel to new owner, at

least one retained by original
owner
o
Existing, apparent, continuous use when
severance occurs, and

Must use one parcel for benefit of

other parcel

Apparent visible, or discoverable

through reasonable inspection

Sufficiently continuous so parties

reasonably expect use will

19

continue after severance notice

THIS IS A NOTICE REQUIREMENT
ESSENTIALLY

Constructive

Inquiry, or

Actual
Reasonable necessity for use at time of
severance

Convenient or beneficial to use

and enjoyment of dominant
estate. Doesnt need to be
absolutely necessary.

Easements by Necessity
o

Nature
o
o
o
o
o

Requires high degree of necessity, but no

prior use
Usually landlocked parcels
Only endures for so long as necessity itself
NOTE: CAN LIE DORMANT
NOTE: Giving legal effect to parties intent

So if theres evidence that parties

intended to buy/sell landlocked
parcel, law will not imply an
easement by necessity

Creation
o
Severance of title to land held in common
ownership, and

Ownership of tract, followed by

conveyance of part of tract to new
owner
o
Strict necessity for easement at time of
severance

Traditional

Absolute necessity
landlocked

Minority

Reasonable necessity
convenient or beneficial
to normal use/enjoyment
of dominant land

Prescriptive Easements
o

Nature
o
adverse possession easement
o
taking and tolling apply here as well
o
No negative prescriptive easements
o
Usually only for appurtenant easements
Creation
o
Actual use

Just need reasonable outlines of

easement with reasonable
certainty

Consistent with pattern of use

throughout prescriptive period

Open and notorious use

Sufficiently visible/apparent that

diligent owner who was present on
land at the time would be able to
discover it
Adverse and under a claim of right, and

Majority objective test

Use land as reasonable

owner would, without
permission from servient
owner

Intent irrelevant

Minority subjective test

Must have good faith

belief that entitled to use
land

Presumption

Majority
o
Use is adverse

Minority
o
Use is
permissive
Continuous and uninterrupted for statutory
period

Continuous

Only as frequent as is
appropriate given nature
of easement and
character of land

Uninterrupted

If owner stops use even

for brief moment,
continuity ends

Statutory period

Usually same as adverse

possession

Can be different (shorter)

Acquiescence

Disregard

Easements by Estoppel (Irrevocable license)

o

Nature
o
o
o
o

An irrevocable license
Licensee expending substantial
money/labor in reasonable reliance
Only lasts as long as needed for licensee to
recover value of investment
Owner never intended to give an easement,
but because of circumstances, court grants
easement

Creation
o
License, typically for access purposes

Express or implied
o
Licensees expenditure of substantial
money or labor in good faith reliance, and

20

Must be reasonable

Licensor created
impression license would
not be revoked, or

Reasonable licensee
would construe situation
that way
Licensors knowledge or reasonable
expectation that reliance will occur

Scope Kind, Unreasonable Burden, Subdivision

o

Manner, Frequency, Intensity of Use of Easement

(Kind, Unreasonable Burden, Subdivision)
o
Scope may evolved over time; turns on
intent of original parties
o
Intent factors

Circumstances surrounding
creating of easement

Whether express, implied, or

prescriptive

Purpose of easement
o
Presumption

Express/implied easement

(Majority) Easement
holder can do anything
reasonably necessary for
full enjoyment of
easement
o
Thus, reasonable
changes in
manner, freq,
intensity to
accommodate
normal
development of
dominant land
are permitted

(Minority) Limits use to

specific purpose
contemplated when
easement was entered
into

BUT, cant impose

unreasonable burden on
servient land

Subdivision
o
When dominant
land subdivided,
every lot owner
entitled to use
any easement
appurtenant to
dominant land.
o
BUT, no
unreasonable
burden on

servient land
Servient owner may
impose reasonable
restraints on easement to
avoid greater burden on
own land than originally
contemplated, as long as
restraint doesnt
unreasonably interfere
with dominant owners
use

Prescriptive

Reluctant to permit
expansion

Little connection to party

intent
Use of Easement to Benefit Land Other than
Dominant Land
o
Traditional

Not allowed

Normally, injunction

Though damages are also

available
o
Modern

Not allowed, but instead of

injunction, award very small
damages

Essentially gets around rule, if

equitable
Change in Location/Dimension of Easement
o
Traditional

Only if servient, dominant owners

agree
o
Modern (Restatement)

Servient owner may make

reasonable changes if necessary
for normal use/development of
property

So long as easement holder not

prejudiced

Divisibility (appurtenant)/ Apportionability (in

gross)
o

Appurtenant
o
Can be divided
o
All parties that get part of dominant estate
can use easement
o
EXCEPT for unreasonable burden
In Gross
o
Can be apportioned IF

Exclusive of the land

owner/grantor, and

(usually needs to be) commercial

o
(Restatement) Can be apportioned IF

Not contrary to intent of parties

21

Termination

who created easement, and

Doesnt unreasonably burden
servient estate

o
o

Transfer of Easements/Running with land

o

Appurtenant
o
Benefit (Running with land presumed to
be)

Writing that conveys intent of

parties

Intent of parties that benefit will

run with land
o
Burden (Running with land presumed to
be)

Express

Writing

Intent

Notice to new servient

estate owner
o
Actual
o
Inquiry
o
Constructive

Implied

Intent

Reasonably necessary for

enjoyment of dominant
estate
In Gross
o
Benefit (Transfer)

Traditional

Not transferrable

Modern

Commercial
o
Freely
transferrable

Non-commercial
o
Usually not
transferrable

Restatement

Freely transferrable

UNLESS parties should

not reasonably have
expected this result
o
Burden (Running with land)

Express

Writing

Intent

Notice

Implied

Intent

Reasonably necessary for

enjoyment of dominant
estate

o
o
o
o

Real
Covenants

Express limitation
o
e.g. limited in time
Easement holder voluntarily releases rights to
servient owner
One owner acquires both servient and dominant
estates
o
Extinguished Doctrine of Merger
Eminent Domain
Estoppel
Servient land conveyed to purchaser without notice
o
Express easements only
Abandonment
o
Found if holder

Stops using easement for long

period, and

Takes other action clearly

manifesting intent to relinquish
easement
Misuse
o
Extinguishes easement when injunctive
relief is wholly ineffective
Prescription
o
Servient owner may prescriptively
terminate an easement
o
Same elements as prescriptive easement,
EXCEPT

Servient owners conduct must also

substantially interfere with
holders use of the easement
Frustration of Purpose
o
Easement no longer has use it was
intended to have
Marketable title acts
o
Law requiring re-recording of easements
o
If re-recording doesnt occur, then
easement is terminated
(Restatement) Changed Conditions
o
Impossible as practical matter to
accomplish the easements purpose
o
Can be modified, or terminated (if
modification is not practicable)

Definition
o

o
o

Promise concerning the use of land that

o
benefits and burdens the original parties to
the promise and also their successors, and
o
is enforceable in an action for damages
Can be affirmative or negative
Burden
o
Promisors (or successors) duty to perform
the promise
Benefit
o
Promisees (or successors) right to enforce
the promise
Presumption that it runs with the land

22

Original Promisee v. Promisors Successor: Does

Burden Run?
o

Must be in writing
o
Must satisfy SOF
o
UNLESS standard exception to SOF can be
proven (estoppel or part performance)
Original parties must intent to bind successors
o
Express words

assigns or successors
o
Inferred from

Nature of restriction

Situation of parties

Other circumstances surrounding

covenant
o
Presumption

Most courts presume restrictive

covenants intended to run with
land
Covenant must touch and concern land
o
Burden on use of property
o
Including non-compete
o
There is a move towards reasonableness

Parties intent

Interferes with public policy

Changed circumstances make

covenant unreasonable

Unreasonable restraint on trade

Whether covenant had impact on

considerations exchanged when
covenant was originally executed
o
NOTE: burden does NOT run if benefit is In
Gross
Horizontal privity
o
Look only at original parties to covenant
o
Need instantaneous privity

When restriction on land happens

at same time as conveyance of
interest
Vertical privity
o
Look at relationship between original party
and successors
o
Need strict vertical privity

Entire interest in property is

conveyed to successor
o
(Restatement) Relaxed vertical privity is
enough
Successor must have notice of covenant
o
Actual notice
o
Constructive notice, or

Covenant is in chain of title;

restriction was recorded
o
Inquiry notice

Circumstances such that you

should look into situation further

Promisees Successor v. Original Promisor: Does

Benefit Run?

Covenant must be in writing

Original parties must intend to benefit successors
Benefit of covenant must touch and concern land
o
Increase market value, or
o
Increase use and enjoyment, or
o
Just benefit the dominant estate somehow
o
There is a move towards reasonableness
Vertical privity must be present
o
Need strict privity
o
(Restatement) Relaxed vertical privity is
enough

Promisees Successor v. Promisors Successor:

Do the Burden and Benefit Both Run?

Just apply separate benefit/burden analysis

If both run, then covenant is enforceable
NOTE: burden does NOT run if benefit is In Gross

Rule Against Benefits In Gross

o

When you have no interest in land, you have no

interest upon which to sue
o
(Restatement) EXCEPT if you can show a
legitimate interest in doing so

You were an intended beneficiary

of the covenant, or

You leased the property, and thus

relaxed vertical privity is enough

Termination

Express limited time covenant

Benefit-holder agrees to release rights
Eminent domain, or other gov't action
One party acquires ownership of all land
burdened/benefited by covenant
Anti-discrimination protections (see servitudes below
for more info)
Abandonment
o
Conduct of benefiter demonstrates intent to
relinquish rights
Changed conditions
o
Conditions in area of burdened land change
so much that intended benefits of covenant
cannot be realized
o
Dont need to look at entire restricted area,
just a portion thereof
o
High bar
Relative Hardship Doctrine (Undue Hardship)
o
Wont be enforced if harm caused to
servient estate by enforcement will be
greater by a considerable magnitude than
benefit to the owner(s) of the dominant

23

estate(s)
o
Typically need severe harm
Acquiescence
o
Someone who has tolerated previous
violations of the covenant by the owner of
the servient estate.
Unclean Hands
o
Bars P who has violated a promise from
seeking to enforce it in equity against
another party.
Estoppel
o
Person manifests intention not to enforce
covenant, and D reasonably relies on this to
his detriment, estoppel prevents person
from enforcing covenant.
Laches
o
When Ps unreasonable delay in enforcing
promise causes substantial prejudice to D
Marketable Title Acts
Merger
o
Burdened and benefited estates come
under common ownership
Prescription
o
Open and notorious violation of covenant
without permission for statutory period

Remedies

Equitable
Servitudes

Traditionally
o
Compensatory damages
Modern
o
Compensatory damages (by enforcing as
real covenant)
o
Injunction and past damages (by enforcing
as equitable servitude)

Definition

Promise concerning use of land that

o
benefits and burdens the original parties to
the promise and their successors, and
o
is enforceable in equity
Difference from Real Covenant
o
Easier standard to meet
o
More defenses available
o
Traditional remedy is injunction
Presumption that it runs with the land

Original Promisee v. Promisors Successor: Does

Burden Run?

Promise must be in writing or implied from a

common plan
o
Writing that satisfied SOF
Original parties must intend to bind successors
Promise must touch and concern land, and
o
Traditional

Burden doesnt run unless benefit

is appurtenant
Modern

Split
Successor must have notice of the promise
o
Actual
o
Constructive, or
o
Inquiry
o

Promisees Successor v. Original Promisor: Does

Benefit Run?

Promise must be in writing or implied from a

common plan
Original parties must intend to benefit successors
Promise must touch and concern land

Promisees Successor v. Promisors Successor:

Do Burden and Benefit Both Run?

Just do both benefit/burden analyses

Subdivisions Problem: Implied Reciprocal

Negative Servitudes
o

Elements
o
Common plan or scheme. Factors:

Presence of restrictions in all or

most deeds to property in area

Recorded plat/declaration showing

restrictions

Presence of restrictions in last

deed sold by developer

Observance of owners of similar

development of their land and
conformity to written restrictions

Language stating covenants are

intended to run with land

Recording of declaration stating

covenants are intended to be
mutually enforceable

Allows enforcement of
restrictions by neighbors
against eachother

NOTE: Its OK to have IRNS in PART

of housing development in
similarly situated lots
o
Notice of buyer

Constructive

Recorded declaration or
plat prior to purchase, OR

Recorded deed with

restrictions prior to
purchase, OR

(In most jurisdictions)

Common grantor at same
time/area conveyed
restricted lots with
something in their chain

24

Inquiry

Actual

of title
(Some jurisdictions)
Uniform pattern of
development that
suggests existence of
common plan
If notice is oral, parol
evidence may prevent it
from being let into court

Who Can Sue to Enforce

o
Other owners
o
HOA

Exception to rule against benefits

in gross

b/c they represent

homeowners

CAN sue if authority given in

declaration
o
Developer

If no land

Cant sue (violated

benefits in gross)
o
EVEN if put in
declaration

(Restatement) Can sue if

o
Authority in
declaration, AND
o
Homeowners
can take right
away, AND
o
Shows legitimate
business interest

If still has land

(Majority) Can sue

(Minority) Can sue, BUT

also needs authority in
declaration
o
NOTE: courts
more amenable
to this if
homeowners are
able to voteaway this
authority
Remedies
o
Monetary and/or injunction

Termination

Anti-discrimination protections
o
Divesting someone of title

Enough state action to be

unconstitutional
o
Allowing language of trust/covenant do its

own work

May not be enough state action

to be unconstitutional
o
Fair Housing Act prohibits discrimination
based on race, color, religion, sex, national
origin, familial status, handicap
o
Single family residence Covenants

Many jurisdictions dont enforce

against group homes
o
Cy pres Doctrine

If the intent of a trust is general,

and the purpose of the trust can
still be effectuated, then trust can
be reformed and modified

If the intent was specific and cant

be effectuated, then cy pres cant
be used to reform trust, and it fails
Changed conditions
o
Conditions changed so much that intended
benefits of restriction cannot be obtained in
a substantial degree.
o
Dont need to look at entire restricted area,
just a portion thereof
o
High bar
Release
Abandonment
Merger
Eminent Domain
Acquiescence
o
Someone who has tolerated previous
violations of the covenant by the owner of
the servient estate.
Estoppel
o
Person manifests intention not to enforce
covenant, and D reasonably relies on this to
his detriment, estoppel prevents person
from enforcing covenant.
Laches
o
When Ps unreasonable delay in enforcing
promise causes substantial prejudice to D
Relative Hardship (Undue Hardship)
o
Covenant won't be enforced if harm to
servient estate caused by enforcement will
be greater by a considerable magnitude
than benefit to the owner(s) of the
dominant estate(s)
o
Typically need severe harm to the servient
estate
Unclean Hands
o
Bars P who has violated a promise from
seeking to enforce it in equity against
another party.
Marketable Title Acts
Merger
o
Burdened and benefited estates come

25

under common ownership

Prescription
o
Open and notorious violation of covenant
without permission for statutory period

Remedies

Interpretati
on of
Ambiguous
Covenants

o
o

Injunction
No damages
When theres ambiguity or substantial doubt as to
meaning, restrictive covenants will be read narrowly
in favor of free use of property
Still, main way is intent of grantor

Land Use Controls Public

Modern
Zoning
Controversi
es

Exclusionary Zoning

Land Use
Regulation
and Takings
Clause

Generally

Land-use controls that tend to exclude low-income

and minority groups
Due to zoning, cost of housing becomes so high that
low-income residents are priced out
[Minority]
o
Almost every local gov't obligated to meet
fair share of regional need for low/moderate
income housing
o
Applies to growth areas or developing
municipalities
Prevents gov't from:
o
Taking private property

Including easements, intellectual

property
o
For public use
o
Without just compensation
Purpose of takings clause of 5th amendment
o
To bar gov't from forcing some to bear
public burdens which should be borne by
public as whole (fairness and justice)
Core variables
o
Economic impact of gov't action on owner
o
Nature of public interest underlying gov't
action
o
Whether gov't action involves physical
intrusion or just regulation
NOTE: regulation NOT taking just b/c of reduced
market value

Modern Tests Taking

Eminent Domain
o
Clearly taking
o
e.g. taking property to build a road
Police Power
o
Clearly not taking
o
States have authority to pass regulations to

protect health, welfare, safety of citizens

State has power to prevent nuisances
Choosing to protect a larger industry
(apples) at expense of smaller industry
(cedar) is OK

[Miller]
Ad hoc test (for anything not per se) [Penn Central]
o
Each takings case decided by factor
balancing

economic impact of regulation on

claimant

Even significant
diminution in value NOT
taking if regulation
reasonably related to
promotion of general
welfare

extent regulation interferes with

claimants investment-backed
expectations

character of gov't action

Physical invasion more

likely to be taking than
benefit-conferring
regulation
o
NOTE: Takings criteria applied to parcel as
whole
Bright Line Rules (per se takings)
o
Taking will be found:

If gov't authorizes permanent

physical occupation of land
[Loretto]

No matter how slight

Either gov't occupies

land, or authorizes 3rd
party
o
But if invasion is
owned by
landowner,
probably not per
se taking

Temporary invasions
apply ad hoc test
o
Allowing
protestors in
shopping center
not taking since
owners could put
restrictions on
them
[Pruneyard]

If regulation causes loss of all

economically beneficial/productive
use of land [Lucas]

UNLESS justified by
o
o

26

background principle of
property or nuisance law
Looks at expectations
when buying, and
whether they were
reasonable

Public Use

Sovereign may not take property from A for sole

purpose of giving it to another private party B
State MAY transfer property from one private party
to another if future use by the public is the
purposes of the taking
Economic development is a public use, if: [Kelo]
o
Theres a comprehensive economic
development scheme to create increased
economic activity in an area
o
No requirement that the goal of the city will
be achieved with reasonable certainty
NOTE: state constitutions can provide more
protection if they want

Just Compensation

Usually FMV
Property
o
For aboriginal title (just right to possession)
to be considered property under takings,
must be recognized by: [Tee-Hit-Ton]

Treaty, OR

Statute
Requires good faith effort to compensate [Sioux
Nation]

Remedy

Compensatory damages
For permanent taking
o
Owner entitled to receive FMV of land on
date of taking
For temporary taking
o
FMV of use of property during takings
period

27