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Access to Property:

How do we attain property?

o Transaction/contract (buying a car from a dealer)
o Familial relations (inheritance/gift)
o Social custom: custom in the community; often occurs in certain trades like fox/whale
hunting. Sometimes acquisition is determined by what the custom in the law is. (Pierson
v. Post)
o Labor/investment: when you apply your labor to a thing, it becomes yours (Pierson v.
Post; Johnson v. MIntosh)
o Received from Government (Johnson v. MIntosh)
o Conquest (maybe) (Johnson v. MIntosh)

**Johnson v. MIntosh (1823):

DISCOVERY DOCTRINE: European nations got title over the lands they discovered-local
Indians had a right of occupancy but not rights of possession-had no authority to sell the land.
Labor/dessert theory introduced here as wellIndians did not apply their labor to the land,
therefore had no ownership over it.
Johnson got title via transactions with Indians. MIntosh claimed title to an identical parcel which
he obtained via grant from the U.S. Who has the better claim to title here?
Court determines that the tribes had a property interest, but they did not have the right to
alienate (sell) the land (they did not have that stick in the bundle). They had a lesser property interest
than the U.S. Government did.

Law of Capture
Law of Capture: Labor and pursuit not enough to give right over property.
Pierson v. Post (1805):
Post is hunting a fox. Pierson comes along and kills it/carries it away. Court finds that
Posts pursuit alone did not create a property right. Pierson did not do anything wrong in the eyes
of the law.
Court says you need to:
1) intend to appropriate the animal
2) deprive it of its natural liberty and
3) bring it under your dominion and control. Court says that anything less is a
slippery slope that will lead to endless, confusing, and uncertain litigation.
1) Intent to appropriate (use);
2) Deprive animal of actual liberty;
3) Brining under control (mortal wounding good enough).
Post doesnt satisfy this part of the new test, so Pierson wins.

Popov v. Hayashi (2002):

Popov catches ball, gets mobbed, drops it, and Hayashi nabs it. Hayashi relies on Grays
rule (possession does not occur until fan has complete control of the ball). Under this rule he has
a property interest. Problem is, Popov was prevented from getting the ball by the wrongdoers
who mobbed him while he undertook to obtain the ball which triggers a legally cognizable prepossessory interest in acquiring the property (think of it as a stick in the bundle). Court decides
to split ball between Popov and Hayashi since they both have a property interest.
Hayashis possession is likened to if you were to buy a house with an unclear chain of
Elliff v. Texon Drilling Co. (1948):
A landowner has property rights to the gas under his land, even if the gas spewed over
from his neighbors land.
Oil drillers on an adjacent plot of land negligently destroyed their own well, as well as
the oil under Elliffs land. The court held that the law of capture did not absolve Texon of its
liability because their actions were unreasonable. (In oil cases, adjacent drillers are normally
allowed to drain oil from adjacent lands-since oil is migratory- however you cannot simply
destroy the oil-cant be wasteful or negligent).
Tension here between the freedom of action and security of property. This is a tension
in Property law between peoples freedom to do what they want with their property and other
peoples right to have security over their property (that could be adversely affected by someone
elses acts on their own property)
In this case, under the law of capture, the court places the freedom of action over the law
of security.

Labor and Investment

**INS v. AP (1918):
INS news takes news AP produced and reprinted it as its own with accrediting the source.
AP tries to get an injunction preventing INS from doing so. Does not have a copyright claim,
because news cannot be copyrighted (it is a fact), but AP has a misappropriation claim. Court
says that members of the public could repeat facts reported by AP, but since INS is a competitor
they cannot , within a certain scope of time, because news is quasi property.
This is the doctrine of relativity of title-your title over a thing may depend on relativity
to others in question. Policy reasons-INS can print and sell news for cheaper, destroying its value
and lowering APs incentive to produce it in the first place.
In his dissent, Holmes says Property is itself a creation of law. Rejects the idea that property
exists independent of law.
Brandeis, dissenting, says that the court has made a big leap in this case creating a lot of
implications that should be contemplated by legislatures. Court has overstepped its bounds.

Moore v. Regents of the University of California(1990):

Labor and Investment is going to be rewarded if its socially beneficial.
Moore underwent treatment for leukemia during which he had his spleen removed. The
doctors used his spleen for further research from which they eventually profited. Moore sued
alleging breach of fiduciary duty and conversion (the unlawful talking of a property interest of
his). In order to show a claim for conversion, Moore must show that he maintained a property
interest in his genetic material once it left his body. Court found no such interest, also said he had
no right to share in the patent because his genes were but a small part of the whole.
Mosk dissent: Moore had some property rights with regards to his cells. He should share in the

Gifts & Finders Law

Finders keepers notion is wrong. Finders Law is state law but some big principles are the
Relativity of title-claims of possession depend on the intent of the original owner
Finders law pertains to 3 Categories of Property:
o A) Lost-accidental misplacement by owner
o B) Misplaced-intentionally left somewhere, then accidentally forgotten where.
o C) Abandoned-owner forms an intent to relinquish ownership; place the property
somewhere and relinquish all claims to it.
A true owner has a right to recover lost or mislaid property from a finder. Finder can
keep abandoned property because the original owner abandoned his rights to it.
Therefore, need to look at the true owners intent when dealing with these situations.
Finder vs. third parties: Finder finds property, true owner never comes back to claim it,
finder has the property. Has the right to prevail against all third parties, but not against the
original owner should he suddenly appear.
Charrier v. Bell (1986):
Archeologist finds artifacts on Indian land (had permission to look from a guy who he
thought was the owner, but who was not). Tries to sell the artifacts but is not the true owner.
Proposes ownership based on theories of abandonment and unjust enrichment.
No unjust enrichment-Indians were actually more upset than anything over the
uncovering of the artifacts from a burial ground.
No abandonment- it was not the intent of the original owners to abandon it. This is a
situation akin to burying your grandmother with her wedding ring-someone cannot come by and
dig her up and take the ring. Also, court does not uphold the transfer of ownership to some
unrelated third party who uncovers burial goods.
Res Nullius-things that cant be abandoned because they have never been owned (like
fish or wild game)
Res Derelictae- things voluntarily abandoned by their owner with the intention to have
them go to the first person taking possession (i.e. leaving old furniture on the street).
*The court says that the artifacts are neither.

Unjust Enrichment Requires (conjunctive list):

-An Enrichment
-An Impoverishment
-Connection between enrichment and impoverishment
-An Absence of justification or cause for the enrichment and impoverishment
-No other remedy at law available to Plaintiff

Trespass & Right of Reasonable Access

Trespass is rooted in the right to exclude, which is one of the fundamental sticks in the
bundle. However, this right is NOT Absolute; it can be modified in different contexts.
o For example, in general the more the owner opens up his land to the public, the
less he has the right to exclude.
A trespass is generally the intentional, unprivileged intrusion upon the property of
another. Necessity can supersede this and make you not liable for trespass. PUBLIC
POLCIY may also allow you to trespass, i.e. access to a cemetery.
o Intent: you dont have to have intent to trespass, you only have to have intent
to achieve action that causes trespass. Met if defendant engaged in a voluntary
act. Not necessary to show trespasser intended to violate owners legal rights
Civil remedies include damages, an injunction or ejectment, or a declaratory
judgment where the court says it is your property and the other person has no right to be
Criminal trespass treated like other criminal cases.

Privileged Trespass: bars trespass liability if:

-Entry is done with consent of owner
-Entry is justified by the necessity to prevent a more serious harm to persons or property
-Entry is otherwise encouraged by Public Policy.
-Mistaken Entry is NOT a defense.
State v. Shack (1971):
Title to property cannot include dominion over the destiny of persons the owner
permits to come upon the premises.
Landowner Tedesco files complaint against defendants Tejeras and Shack, who attempted
to contact and communicate with, in private, a migrant worker on Tedescos farm. Issue is how
strong is Tedescos right to exclude?
Court explores the policy behind the Federal law (congressional act) that protects migrant
workers rights, and justifies it by arguing that the workers have no power and are cut off from
society through standard means of communication, so the need for assistance to reach out to
them is high. Court says that the owner does not need to allow everybody-can still exclude
peddlers and solicitors, but guests of workers must be allowed since property is supposed to
promote human values.
This is opposed to the natural view of property independent of law/being absolute.
Here it probably mattered that the migrant workers lived on the land, though the court did not
rely on a landlord-tenant model because the two sides did not sit and negotiate this ahead of time
as a landlord and tenant do.
Necessity, private or public, may justify entry upon the lands of another

Uston v. Resorts International Hotel, Inc. (1982)

Businesses have a right to exclude without cause if they are not Innkeeper or Common
Carrier, as long as they dont violate State/Federal law.
Uston is a card counter who is excluded from a casino in New Jersey. The court finds that
the casino cannot unreasonably exclude patrons, and that it is doing so here. Thus, Uston wins
and is allowed to win in the casino.
Character of Property: Court supports its decision by arguing that property
owners/businesses who open themselves to the public cannot unreasonably exclude persons.
Duty to not act arbitrarily or discriminatorily. Duty applies to all property owners who open
premises to public.
EXCEPTION: Right to Exclude people who disrupt or threaten safety (drunks,
Williams #1: Williams (a black woman) is not allowed into a clothing store based on her race.
Decries discrimination based on skin color.
Williams #2: Argues that discrimination is sometimes a numbers game, not an issue of racism.
Makes the argument that black cab drivers are as unlikely to pick up black teenagers as white
store owners are to allow them into their stores. These are decisions made based on probability of
harm, not on racism.


Adverse Possession: Law & Policy
Method of acquiring title by a statutory period. Holding on to land for long enough until you
have a legal claim to it. Transforms trespasser to owner.

1. Actual possessionPhysical occupation of the property.
-Ordinary use to which the land is capable, and such as the owner would make of it.
Proof that possessor treated land as average owner would.
2. ExclusiveAdverse Possessors use of the property must be exclusive of the true owner of
the property, not the whole world.
-defeated by sharing property with true ownerimplies permission.
3. Open and notorious-how it seems to others in the community-want to put true owner on
-Dont need to prove that owner had Actual Notice; only show that a reasonable
inspection would have revealed that someone else was establishing possessory rights.
-Sufficient fence, wall, building a structure, clearing land, laying down driveway,
mowing grass, parking, storage, garbage removal, picnicking, planting and harvesting crops.
-Insufficient clearing a few trees, grazing cattle or goats without enclosing land, etc.
4. Adverse/hostile under claim of right or color of title. Did Adverse Possessor act adversely to
true owners interest?
-Absent Statute do not care about intent, just about actions. Assume objective standard
of irrelevant intent.
-When Statute exists (keep in mind the jurisdiction when looking at color of title and
claim of right [i.e. objective approach/good faith approach/ intentional trespasser approach])
-Claim of Right: When you claim a right to a disputed piece of land through your
-Color of Title: When you actually have a deed, and the deed says you own a specific
piece of land, but the deed is erroneous (the deed may be flawed). So, under this claim, youre
arguing that you own the land through adverse possession because your (flawed) deed says that
you do.
5. Continuousyou have to possess continuously. Used as customarily would be used (i.e.
-EXCEPTION: Tackingperiods of possession may be added up if in privity with each
other (title transferred from one adverse possessor to another).
6. Statutory periodTime period prescribed by statute. Statutes in jurisdiction that will tell you
how long property needs to be possessed to give title.
-EXCEPTION: Can be tolled for infancy, incarceration, insanity, incompetence for any
other reasons, absence from state.
*Mindstate of Adverse Possessor: even a knowing wrongdoer (one who knowingly trespasses
and attempts to obtain land via adverse possession) may do so. Mind state is irrelevant.

-Under Color of title, you almost always have Good Faith of the Adverse Possessor
Brown v. Gobble (1996)
Defendants purchased land in 1985 and thought it included a 2-foot wide tract of land.
Plaintiffs purchased their land in 1989 and when they did a survey of the land determined that
they owned the 2-foot tract dividing the properties. Court insists on using a higher standard of
proof (clear and convincing evidence) because it wants to minimize the risk of erroneous
decisions-does not want to allow the land of one to be taken by another upon a slight
presumption of probability.
The defendants argue that even on a clear and convincing evidence standard they would
win because the previous owners attained the 2-foot tract of land via adverse possession (theyd
held the land for 30+ years, statute only requires 10). Defendants win.

Tacking: To meet the statutory period, you can add the previous owners years of adverse
possession to your own. However, in this case that was unnecessary because the previous owners
had achieved adverse possession over the land and intentionally transferred their land, including
the two foot tract theyd obtained through adverse possession, to the defendants in this case.
Romero v. Garcia (1976)
Romero sued to quiet title against her former in-laws based on adverse possession. She
thought she bought the land and owned it by valid deed but did not (lack of conveyance). She
wins at trial and on appeal. Defendants argued (unsuccessfully) that the parcel of land was not
adequately described for adverse possession and that the void deed was inadequate for color of
title. The court rejects both of these arguments, saying a deed is sufficient for the purpose of
color of title even though it is void for conveyance because it lacks the signature of a member of
the community. Also, the land was described adequately enough for Romeros adverse
Color of title claim for adverse possession-an individual acquires color of title when a written
conveyance appears to pass title but does not do so. When one has color of title, some states
lower the number of years required to obtain adverse possession.

Nome 2000 v. Fagerstrom (1990)

The Fagerstroms claim adverse possession over a parcel of land. For ten years they used
it as a campsite, etc., and built a cabin on it. Nome says that they are a year short-that in the first
of the ten years they did not adversely possess the land.
Court says that the Fagerstroms had a valid adverse possession claim, but to how much of
the disputed parcel? Court has to define the parameters of the land you adversely possessed-says
that the Fagerstroms only obtained title over part of the land.
Other points from this case:
Exclusive use pertains to exclusive from the true owner-if the true owner gives you
permission to be on the land, that destroys your claim of adverse possession.
Open and notorious allows the owner a chance to recognize that his property is being
possessed by another and gives him a chance to reclaim his property. For open and
notorious use to exist, it is enough that the owner would have known someone was using
his property if he saw what was going on (he does not actually need to know though).
Hostile or adverse takeover pertains to intent. Court says that hostility is determined by
whether the possessor acted towards the land as if he owned it.
Actual Use this type of property is typically used for the exact uses that the Ds have
engaged in.
Continuous P argues that Ds use wasnt continuous because they werent there all the
time; court says that Ds use of the land is consistent with how that type of land can be
used (viable in summer, not in winter).
Constructive possession: when claiming adverse possession under color of title, if you achieve
adverse possession as to any piece of the property within the deed, you achieve title over the
whole thing. Notice the difference here from claim of right (as in the Fagerstrom case) where
they only get part of the land.
Other Notes:
There is no one objective standard of use required for adverse possession. Rural Alaska
may require something different than somewhere else. Have to look at the property itself.
Dont want to hold the adverse possessor to a higher standard than the true owner-actual
use standard takes into account how a true owner would use the property.
Good faith requirement-some states say that only those who mistakenly possess land
can achieve adverse possession.
In looking at continuous, understand tacking (you can add on previous years of adverse
possession from previous owners, if there is privity between you and the previous owner
they meant to convey that land to you).
In certain situations, a statute allows for tolling-protects a property right for a minor, one
in the armed services, etc. (stops the adverse possession statute from running).

Other Informal Title Transfers
Somerville v. Jacobs (1969)
Plaintiffs, mistakenly believing lot 47 was theirs, erected a building on the land.
Defendants claim the building as their own by theory of annexation. Plaintiffs sue, seeking
equitable relief asking that either the defendants pay them for the building or sell them the land
it sits on at its original value (value not including the building).
Problem is that both parties acted innocently-plaintiffs relied on an incorrect
determination by a surveyor, defendants did not know of the infringement on its property until
after the structure was built. Court does not want to see unjust enrichment-rules that defendants
must either compensate plaintiffs for the land or sell the property.
Rule set forth by court: To prevent unjust enrichment, an improver of land owned by
another, who through a reasonable mistake of fact and in good faith erects a building entirely
upon the land of the owner, with reasonable belief that such land was owned by the improver, is
entitled to recover the value of the improvements from the landowner and to a lien upon such
property which may be sold to enforce the payment of such lien, or in the alternative, to
purchase the land so improved upon payment to the landowner of the value of the land less the
improvements (p. 220)
*This doctrine is known as the Relative Hardship Doctrine-this does not provide a
lot of certainty in these situations, but looks on a case by case basis at the relative harms to
either side. Questions asked under doctrine:
1) Was encroachment innocent?
2) Was Harm minimal?
3) Was Interest of True Owner in property small?
4) Is Cost of Removal substantial?
*If the encroachment is innocent, the harm minimal, the interference in the true owners
property interests small, and the costs of removal substantial, the courts will often either order
the encroaching party to pay damages to landowner to compensate for decreased value of
owners land or order a forced sale of the property with damages equal to the value of the land
taken and possibly a premium to compensate for the involuntary nature of the transfer of
Annexation-improvements pass to landowner as part of the land: could have applied heresome courts may have said this building belongs to the landowners on whose land it sits.
However, courts are less willing to do that because of the massive investment that goes into
constructing a building.


Nuisance = A substantial and unreasonable interference with the use or enjoyment of land.
-Temporary Nuisancecan be alleviated by changes in the Ds conduct and the claim
accrues anew up on each injury, or occurs intermittently.
-Permanent Nuisanceirreparably damages Ps property or is of such a character that it
is likely to continue indefinitely
Ones property should not be unreasonably interfered with or disturbed. This is a flexible
standard for judging nuisance. Need to look at the different factors the court lays out:
1. Substantial harm
2. Unreasonable interference
3. Priority of location (who was there first)
4. Hypersensitivity (normal persons in a particular locality standard)
5. Character of the neighborhood
6. Nature of the alleged harm
7. Statutory environment
8. Rights and fairness (to both parties)
9. Utility and meritoriousness of the defendants conduct (look at society as a whole)
*Note nuisance claims are a cross between property and tort claims-tort and property are not
completely distinct fields of law-they do overlap.
Page v. Honeywell (1984):
Pages display television started malfunctioning. Page traced the interference to
Honeywells computer. Honeywell fixed the problem to an extent but not fully and Page sued on
the basis of nuisance (it is thus important that Pages store was on the location first). Case is
reversed and remanded.
-In Nuisance cases, a Normalcy Standard is applied to measure the existence of a
nuisance, looking to the standard of normal persons in a particular locality.
-Plaintiff is not allowed to claim Nuisance if their use of their own property is
Unusually Sensitive.
-Reasonableness of Interference
1) Courts first must determine what Interests are encompassed by the right to the
use and enjoyment of land.
2) Second, must determine how serious the interference must be for a Nuisance to
be present. (Substantial has been traditionally used).
3) Third, court must determine whether the harm is Unreasonable.


Remedies: Three basic remedies in property law: *Look at p. 279 in book for expanded
1. Property rule
2. Liability rule
3. Inalienability rule
1. Property rules:
Law has fixed an entitlement and all the sticks in the bundle that go with it. Then steps
back and allows parties to negotiate.
Plaintiff can get an injunction ordering the defendant to stop the harmful conduct. If
defendant wants to commit the harm, it must offer the plaintiff enough money to induce
the plaintiff to agree to give up its right to be free from harm. (Plaintiff can get an
injunction otherwise).
2. Liability rules:
Prevent parties from interfering with the property of others without paying damages.
Plaintiff can pay damages to the defendant (Purchased Injunction) for committing the
harm, but no injunction; defendant is free to commit the harm if defendant is willing to
pay a damage judgment.
Defendant can get damages, but no injunction.
3. Inalienability rules:
Law assigns entitlements. These cannot be sold. (Sometimes can be gifted, just not
sold.) Plaintiff has no rights. Defendant has right to engage in activity.
How do you know what kind of remedy you are going to get when applying nuisance law?
Scenario #1: Plaintiff wants an injunction prohibiting defendants harmful contact. This is
permissible when the defendants conduct is unreasonably interfering with plaintiffs property
and causes the plaintiff substantial harm.
Scenario #2: Plaintiff gets money damages but no injunction. Defendants conduct is
reasonable but causes substantial harm to the plaintiff. The conduct is socially desirable but
plaintiff is bearing an unfair burden, thus is awarded money to compensate him.
Scenario #3: Plaintiff is not entitled to any remedy at all. This may occur if
1) the harm to the plaintiff is not substantial,
2) the defendants conduct causes more social good than harm, and it is not unfair to
impose the costs of the defendants activity on the plaintiff, or
3) the imposition of damages would put would put the defendant out of business and
avoiding this result (because of social desirability) is more important than preventing
harm to the plaintiff.


Scenario #4: Plaintiff is entitled to a purchased injunction if the defendants conduct causes
more harm than good; but it is fair to impose the cost of shutting down the plaintiffs activity
on the plaintiff.
*Plaintiff could get both an injunction and damages.

Nuisance (Light and Air)
Fountainbleau Hotel v. Forty Five Twenty Five (1959)
Fountainbleau appeals from a temporary injunction restricting it from continuing
construction on a new tower for its hotel. The trial judge granted the injunction to the Eden Roc
hotel, which complained that Fountainbleaus construction blocked sunlight to its sun deck and
beach space. Trial court interprets nuisance law to mean that nobody has the right to use his
property to the injury of another.
The court reverses the injunction, arguing that Eden Roc had no legal right to sunlight
and that the Fountainbleaus structure was a useful one, thus no cause of action existed even
though Eden Roc sustained harm. The fact that it may have been malicious was irrelevant.
The court followed the universal rule that adjacent landowners have an equal right to build
as high as they please so long as they are not barred from doing so by statute, especially
where a structure serves a useful and beneficial purpose.
Can think of this case in terms of easements. Eden Roc thinks that because they had
sunlight for twenty years, they had a right to it (an easement) against their neighbors-that their
neighbors would not be allowed to deprive them of it. American law rejects negative
prescriptive easements like these though (thus Eden Roc loses). American law says you do not
have an absolute right to light and air.
Prah v. Maretti (1982)
No absolute or unlimited right to use land in a way that injures the rights of others.
Rights of neighboring land owners are relative. Use by one must not unreasonably impair the
use or enjoyment of the other.
Prah builds a house with solar panels attached to it so as to provide himself with energy.
Maretti comes and builds next door and is going to block out the sunlight. Prah sues but loses on
Marettis summary judgment motion. He appeals. Court grants the appeal, asserting that
Ancient Lights has some use these days-says it was revoked in American law because sunlight
was aesthetic, landowners had rights to do what they pleased, and the country was a developing
one whose needs required building. This court says those arguments are outdated.
Dissent says that this is unfair to the defendant. When he bought the property, his
understanding was that he was within his legal right to build as high as he wanted. Moreover, the
majoritys arguments for ancient lights are not convincing, and lastly they are playing the role of
the legislature in advocating these various policy arguments and implementing policies




Allows you to create a contract right, to engage in some sort of contractual relationship, that isnt
about the peopleit attaches to the land (runs with the land).
Run With the Land if a right or obligation passes automatically to successive owners or
occupiers of the land or the interest in land with which the right or obligation runs.

1) Easements A type of Servitude where the permission is intended to be

permanent or irrevocable.
A) Affirmative Easements
i) Express can be written or oral; mostly easements that run with the land
ii) Implied
1) Prior Use
2) Necessity
3) Prescriptive (also known as the Adverse Possession Easement)
4) Estoppel
B) Negative Easements Didnt cover these in our class.

2) Covenants
1) Affirmative Covenants
2) Negative Covenants
a) Restrictive Covenants
b) Equitable Servitudes (this is often its own category in many of the
supplements, because this is basically the modern solution to dealing with servitudes. However,
Riley categorized it this way.)


1) Easements
More on easements:
A license is much less formal, i.e. being invited to dinner at ones house gives you a
license to be there (not meant to be permanent, revocable at will).
You should record an easement
Affirmative easement is the right to do something on someone elses land.
Negative easement is the obligation not to do something with your land (very few of
these still available in the world). *thus we are not covering negative easements
An affirmative covenant is an obligation to do something on your own land (i.e. pay
condominium association fees).
Negative covenants, split into restrictive and equitable, restrict your use of land.
Dominant estate is the land that benefits from the easement.
Servient estate is the land that is obligated by the easement.

A) Affirmative Easements
The right to do something on someone elses land.
Break down into:
i) express and
ii) implied easements:
-Implied affirmative easements break down into:
o Prior use
o Necessity
o Estoppels
o Prescriptive

i) Express Easements

A contract right that attaches to the land so that when the land goes from owner to owner,
the contract right or obligations runs with the land. It is about the property, not the
o 1) Writing: when there is an easement expressed in writing;
o 2) Scope: when the original grantor that created the easement had the intent to
run according to deed, but intent can be implied if terms are ambiguous.
3 Issues regarding Scope of an Easement:
1) Whether the use is of a KIND contemplated by the grantor
2) Whether the use is so heavy that it constitutes an


3) Whether the easement can be SUBDIVIDED

You should Record the easement (because future buyers can look up the records)

EASEMENTS IN APPURTENANT: an easement whose benefit serves a parcel of land and

cannot be separated from right in land. Attached to land: right of use is attached to dominant
estate. Benefits easement holder in using the dominant estate. Not personal, part and parcel of
land itself. Easement benefits dominant estate. Dominant and Servient estate required.
Analysis: What is the benefit? Dominant. Who has the burden? Servient. Run with land. New
owner gets the benefit.
EASEMENTS IN GROSS: easement is personal to the person and is not possessed in
connection with the ownership of a particular parcel of land. Right of use is with people not
attached to land. No dominant estate being benefited. E.g. In gross because right of use is held
by utility company. Historically not transferable. Today, if an easement in gross is commercial it
is transferable and assignable. When easement is non-commercial, just personal, it is nonassignable, non-transferable, and temporary. Analysis: is this transferable? Did contract create
easement in land that runs with the land? Can exist for short period of time.
Easement by RESERVATION: you sell a parcel of land and reserve the write (in writing) to use
part of it.
Easement by GRANT: buy land on the condition that you can use a part of it.
-The deed conveying the land must :
1) be in writing
2) identify the grantor and grantee
3) contain words manifesting an intention to create an easement
4) describe the affected land
5) be signed by the grantor
Green v. Lupo (1982)
Two plots of land. Plaintiff sells one plot to the defendant and receives an easement for
ingress and egress on the strip of land running in-between the two properties. Trailer park people
living on the plaintiffs land use the easement to ride their motorcycles and the defendant
restricts access to it as a result, arguing that the easement was personal to the plaintiff (says the
easement was in gross-personal to the people, not attached to the land). The plaintiffs argue that
the easement was appurtenant-attached to the land.
Parol evidence is extrinsic evidence-is admissible in these cases when there is ambiguity
in the language of the contract. The court finds that parol evidence was admissible here, and
that the correct conclusion was that the easement was appurtenant to the land (it does note
however that some restrictions on motorcycle use on the easement were appropriate so as not to
unreasonably burden the defendant).


Appurtenant Easements; Easements in Gross; Terminating Easements
Cox v. Glenbrook Company (1962)
An easement had been granted to Quill, whose property bordered a golf course. The new
owners of the Quill property want to subdivide the property, thus they need to widen the Quill
easement. The golf course wants to prohibit ingress and egress, arguing that the Quill easement
did not run with the land. They are wrong-the easement is appurtenant, thus the entire
dominant estate can use it.
However, the subsequent owners cannot widen the road. They may improve it, but cannot
expand the easement. BECAUSE the language of the easement implies that the grantor didnt
want the road to be widened with full right of use over the roads of the grantor AS NOW
-The easement is Appurtenant, and because of this, it can be Subdivided.
- Owners of easement may maintain, repair and improve the way in a manner reasonably
calculated to promote the purposes for which the easement was created.
Appurtenant easements intended to benefit the entire dominant estate but are not without
limitations. 3 issues regarding the SCOPE of an Easement:

1) Kind of easement is considered-ask: what did the grantor intend?

o Majority view any reasonable use is acceptable.
o Minority view limited to specific use contemplated at the time of the contract.
2) Unreasonable burden is the activity contemplated going to pose more of a burden
than was originally contemplated in the granting of the easement?
o Note that even a legitimate use can cause an unreasonable burden.
3) Whether the easement can be subdivided. This is the term we use when were talking
about Easements Appurtenant.
o Exclusive (of the servient estate holder) easements are apportionable. This is the
term we use when were talking about Easements in Gross.
o Non-Exclusive easements are non-apportionable.

Black letter law on easements:

Easement in gross vs. easement in appurtenant: the difference does not revolve around
whether or not it runs with the land. An easement in gross may still run with the land.
In gross easements that are commercial in nature are generally freely alienable and
freely transferable, whereas those that are personal are not.
How do we know if an easement is appurtenant or in gross?
o Look at the intent of the grantor. Our presumption under the law is always
easement in appurtenant (make land more marketable and alienable-policy


Remember with easements in gross you should look at whether it is commercial or

personal-this may be the key as to whether the easement can pass from the original to the
subsequent owner.
Easements should be in writing since they are significant interests in land.
The servient owner must have notice that there is an easement on their property (dont
want people investing in property that has significant burdens of which they are
Three types of notice:
o 1) Actual notice
o 2) Inquiry notice- a reasonable inspection merits investigation of a possible
easement. i.e. you go look at the property and see someone who is regularly
driving across the property.
o 3) Constructive notice-knew or should have known-the easement is in the chain
of title, thus person should have known because a simple title search would have
revealed the easements existence.

Henley v. Continental (1985):

Plaintiff sues to try and prevent expansion of an easement that was owned by Bell and is
now owned by Cablevision. Dealing with an easement in gross. Defendants say the easement is
exclusive and thus apportionable. Court agrees.
The exclusion is exclusive of the grantor-if the grantor grants Bell an exclusive right,
then Bell can apportion out the easement for other purposes. The reason is because if the grantor
wants to reserve the right to grant more easements, then it is not exclusive of the grantor.
However, she did not reserve that right for herself in this case-she gave the whole
easement away; thus Bell has the exclusive right to exploit the easement for utility purposes
and can thus contract with other parties. (p. 359)
The second question in this case is whether it puts an undue burden on the plaintiff. It
does not. The actual physical burden is small, and the intent of the grantor is important but here
they could not have foreseen cable television lines, however these lines are not so different from
what they did intend. Therefore, there is no undue burden.

Can an easement be extended? Say you have two property owners and one is allowed to use a
road on his neighbors property. Wants to use more of it now to reach a new piece of land he has
-The general rule is that you cannot extend the easement.
Can you change the location of an easement? The general rule says yes, as long as the
dominant party bears the cost.


Terminating easements:

Frustration of purpose: idea is you can demonstrate that the easement no longer serves
its intended use.
Merger or unity of title: the owner of the dominant estate and the owner of the servient
estate become the same person.
Express release: A and B sit down together and enter into a contract that terminates the
easement. NOTE: its important to REPORT this.
By its own terms: Some easements may be created for a set period of time, or only under
certain circumstances, etc.
Abandonment: The owner of the easement by her conduct intended to abandon the
easement. Has to be some clear indication that the easement holder has intended to
abandon the easement. Mere non-use is insufficient.
Marketable title acts-In Jurisdictions that use this, you have to go down to the
courthouse every X number of years and re-record the easement.

ii) Implied Easements

Easements without an express contract, but the law imposes an easement anyway.
-Several kinds:
a)Prescriptive Easements
b) Easement by Estoppel
c) Implied from Prior Use
d) Implied by Necessity

a) Prescriptive Easements

Very similar to adverse possession, except here you get a legally enforceable right to
use something, whereas with adverse possession you get the right to own something. The
requirements are similar though slightly less stringent for prescriptive easements.
Have to use someones property in a manner that is actual, open and notorious,
continuous, and non-permissive (or adverse/hostile) for the statutory period (typically
identical to the statute for adverse possession-if ten years for AP, then probably 10possibly lower-for PE).
As a defense to a prescriptive easement, the true owner may claim that they allowed the
use of the land in order to defeat the adverse element.
We assume, however, that the use is non-permissive. Note there is a strong minority
opinion that assumes things are permissive because it is the neighborly thing to do.
The open and notorious requirement is identical to that for adverse possession-must
put the true owner on notice so they have the full opportunity to stop the statute of
limitations from running.
Exclusivity is generally not required (for adverse possession it is). Two people may
acquire prescriptive rights over the same property.


Community Feed Store v. Northeastern Culvert Corp. (1989):

Slight deviations from normal route will not deny easement.
Only substantial changes from normal route will be sufficient to
deny element of actual USE (definite and certain line of travel).
Extent of use can be proved with general outlines that show same
pattern of use, absolute precision is NOT required.
Culvert says Feed store cant get a prescriptive easement because theres no specificity
over what the easement is. Court disagrees, saying that only general outlines consistent with a
pattern of use throughout the prescriptive period are necessary. When a claimant adduces
enough evidence to prove the general outlines with reasonable certainty, it has met its burden on
that issue.
Tacking allowed: period of use by prior owners can be added to show
that use of easement assumed from predecessors as part of land
*dont talk about acquiescence. Acquiescence is duplicative of other terms already used in
prescriptive easements-so ignore it (it is duplicative or open and notorious/and or nonpermissive). Most jurisdictions are not concerned with the state of mind of the person trying to
get the right.
No negative prescriptive easements. Negative easements dont really exist anymore (largely
prohibited by statute). Even to the extent that negative easements DO exist, you can never get a
negative easement by prescription.

b) Easement by Estoppel:
A legal theory under which a person is barred from asserting or denying a fact
because of the person's previous acts or words.
An owner gives a person permission to use his property in a certain manner (like a
license). The grantee begins to rely on that license. If the reliance is reasonable, the
grantor cannot then revoke it.
o Easements by estoppel are also known as the irrevocable license.
Policy: protect the reliance interest of the licensee.
Holbrook v. Taylor (1976):
Holbrook wants to establish an easement by estoppel. Defendant says Holbrook had
permission to use the roadway so there is no prescriptive easement (no hostile use). However,
plaintiffs have relied upon the road to get to their home for a number of years so the court rules
that Taylor cannot suddenly revoke the license (they have an easement by estoppel).
One of the factors the court considers is the fact that the defendant saw the plaintiff
invest in both the road and the property the road leads to.
*Interesting to think about how these easements work: if you allow a neighbor to use the
roadway, you defeat a prescriptive easement but may initiate an easement by estoppel.


c) Easements Implied from Prior Use:

Owner sells property where they owned the entire part. arises when an
owner of an entire tract of land or two or more adjoining parcels, after using
a part of the land so that one part of the tract derives from another a benefit
or advantage of an apparent, continuous, and permanent nature, conveys or
transfers part of the property without mention being made of these
incidental uses.

3 elements required for Easement implied from Prior Use:

1. Common Ownership of the claimed, dominant, and servient parcels, and a
subsequent conveyance transferring ownership.
o A tract of land held in common ownership must be divided into two or more
parcels; at least one parcel must be transferred to a new owner and at least one
must be retained by the original owner.
2. Prior Use has to be of a nature that is Apparent, Obvious, Continuous and
Permanent. (this is because of Notice)
o NOTE: Easement by Necessity does not have this requirement.
3. The claimed easement is NECESSARY and Beneficial to the enjoyment of the
parcel conveyed or retained by the grantor/transferor.
o NOTE: Easement by Necessity requires a GREATER showing of Necessity.

* In determining what kind of easement: ask was common grantor at one point using roadway?
If no, no prior use. Use necessity and ask do you have enough necessity? Then argue: yes or
Granite Properties Limited Partnership v. Manns (1987):
Guy owns a shopping center and also used to own the adjacent property. On that property is a
roadway thats always been used by the plaintiffs delivery trucks. The new owner of that
adjacent property wants to prevent the delivery trucks from using his roadway. The court lays out
the rule for an easement by prior use, finding this to be one (p. 336).
An easement implied from prior use is established by proof of three elements:
1. Prior unity of title AND a conveyance transferring ownership of one parcel.
2. Before conveyance, the common owner used part of the united parcel for the benefit of
another part, AND this use was obvious, continuous, and permanent. (an easement by
implication by its nature is not written, thus there needs to be some Notice).
3. The claimed easement is necessary and beneficial to the enjoyment of the parcel
conveyed or retained by the grantor or transferor.

d) Easement by Necessity:
For Required Elements, see those listed under Easements by Prior Use above.
Elements for an easement by necessity:
1. Prior unity of title (clarification: the person asking for use does not need to be the
one who owned the parcels-it just matters that the parcels were owned together as

2. Absolute necessity
*Easement by necessity can be implied by manner in which land was severed.
Finn v. Williams (1941):
Where an owner of land conveys a parcel thereof which has no outlet to a highway
except over the remaining lands of the grantor or over the land of strangers, a way by
necessity exists over the remaining lands of the grantor. Right of way by necessity may pass
with each transfer.
There is initial unity of title but part is sold. Now plaintiffs land is landlocked-completely
surrounded by other peoples land. The defendant wants to prevent the plaintiff from using a road
on his land to reach the highway.
Court says that an easement by necessity arises in such a caseplaintiff has to trespass in
order to get off his land. Therefore, when he sold the land there was an implied easement by


Express Covenants; Covenants Running with the Land
Covenants: a doctrine created by English Courts to make contracts between parties that
dealt with use or nonuse of land binding on successive owners.
-A promise concerning the use of land that (1) benefits and burdens the original parties to
the promise and also their successors and (2) is enforceable in an action for damages. A
real covenant may be either Affirmative (a promise to perform an act) or Negative (a
promise not to perform an act).
Factors for Real Covenants / Requrements for the Burden to Run
In order for the successor to the original promissory to be obligated to perform the promise (that
is, for the burden to run), the law traditionally requires that 6 elements must be met:
1. Writingpromise must be in a writing that satisfies the Statute of Frauds.
2. Touch and concern-- the covenant must relate to the direct use or
enjoyment of the land.
a. Example: if covenant requires you to dance a jig in the village
square, then it wouldnt touch and concern.
3. Intentthe parties must intend to bind their successors
4. NoticeThe successor must have notice of the covenant.
5. Horizontal Privity (DOUBLE CHECK THIS!!!)
6. Vertical Privity (DOUBLE CHECK THIS!!!)
Requirements for the Benefit to Run
The law requires only 4 elements for the benefit of a real covenant to run to successors:
1) Writingthe covenant must be in a writing that satisfies the Statute of Frauds
2) IntentThe original parties must intend to benefit their successors
3) Touch and Concernthe benefit of the covenant must touch and concern land
4) Vertical Privityvertical privity must exist.
*Note the difference between horizontal and vertical privity.
A) Horizontal is the initial relationship between A and B.
-Horizontal privity must be created instantaneously upon the conveyance of land.
Does not apply to a group of neighbors who get together and make an agreement
to do/not do something.
B) Vertical refers to the relationship between A and his successive owner and B and his
successive owner.
-Vertical privity excludes a case where the grantor grants less than he has (i.e. a
lease agreement).
Termination of Real Covenants:
A) Abandonmentoccurs when the conduct of the person entitled to the benefit of the
covenant demonstrates the intent to relinquish her rights.


B) Changed Conditionscovenant becomes unenforceable when conditions in the area

of the burdened land have so substantially changed that the intended benefits of the
covenant cannot be realized.
Factors for Equitable Servitudes / Requirements for the Burden to Run to Successors
(governed by courts of equity, relief in the form of injunctions):
1. Writing or ImpliedThe promise must be in a writing that satisfies the Statute of
Frauds or must be Implied from a common plan.
2. Touch and concernthe promise must touch and concern the land
3. Intentthe original parties must intend to burden successors.
4. Noticethe successor must have notice of the promise.
Requirements for the Benefit to Run to successors
1. Writing or Impliedsame as above.
2. Intentparties must intend to benefit successors
3. Touch and Concernsame as above
Termination of Equitable Servitudes
A) Changed Conditions
B) Unenforceable due to Unconstitutionality or other similar reasons
-Shelley v. Kraemer is an example of this (racially-restrictive covenants
unconstitutional thus unenforceable)
Davidson Bros. v. Katz (1990)
Davidson Brothers originally sell land to Katz with a restrictive covenant in the deed.
Katz then conveys property to the Housing Authority, who then leases to C-Town. Court says a
non-competition agreement is reasonable. Writing, touch and concern, intent, notice, and
privity are all present. Touch and Concern is just one part of the Reasonableness Analysis.
Concurrence says the majority went wrong with their reasonableness test. The court
should respect what the covenant says-cant invalidate it just because it writes in a
reasonableness test and may find it unreasonable.
Whitinsville Plaza v. Kotseas (1979)
Kotseas sell land to Trust. Kotseas promise not to use their land in competition with a
discount store. Trust sells to Plaza and Kotseas leases to CVS. Plaza then sues Kotseas arguing
that they are bound not to lease to CVS under the covenant they had with Trust. Kotseas can still
be sued and the covenant is still enforceable because they have not conveyed the property to
CVS (not strict vertical privity).
Want to prevent the original grantor, once they have sold everything, from coming back
and trying to enforce previous covenants. This is called the rule against benefits in gross.


Owners who derive their title from the grantor who imposed the restriction, but acquired their
land before imposition of the covenant are also excluded from binding covenants.*? check this

Implied Reciprocal Negative Servitudes in Residential Subdivisions:

Evans v. Pollock (1990)
Restricted area does not have to be the whole subdivision. Common plan can be part
of subdivision. Restrictions dont have to be same throughout, as long as they are in
consistency among the subdivisions.
The doctrine of implied reciprocal negative servitudes (or easements) applies when an
owner of real property subdivides it into lots and sells a substantial number of those lots with
restrictive covenants designed to further the owners general plan or scheme of development.
All lots (even w/out express restrictions) may not be used in violation of the restrictive covenants
burdening lots sold w/express restrictionsthey are burdened by an implied reciprocal negative
easement, implied equitable servitude, negative implied restrictive covenant.
The central issue is usually the existence of a general plan of development. The court
held that the general plan or scheme may be that restrictions only apply to certain well defined
parts of a development for the doctrine of implied reciprocal negative easements to apply to such
lots. Note that in this case, a common scheme was deduced from the fact that of the lakefront
owners could change, by vote, the rule against allowing lakefront property to be used for
Constructive notice puts the obligation on you to search not only your deed of title, but also to
look at the restrictions placed on other homes in the development to see if there is some sort of
implied restriction.
For implied reciprocal negative servitudes
1) Look for evidence of a common plan or scheme: look for restrictions in all/most of the deeds
in the area.
a) look for presence of restriction in the last deed (the last plot in the subdivision)
b) observance of other owners of similar development (are people there all abiding by
similar restrictions?)
c) look for language stating that there is some burden that runs with the land (so that
subsequent purchasers are bound)
d) recording of the declaration stating that the covenants are supposed to be mutually
2) Notice:
a) actual,
b) constructive, or
c) inquiry


Who can sue to get another property owner in the development not to do something?
-The Owner The covenants are mutually enforceable amongst owners (so if I am in
lot 86, and the guy in lot 87 tries to violate the restriction, I can sue him. Alternatively, he
could sue me if I tried to violate the restriction).
-Can the Developer sue for enforcement? Depends. Dont want the developer to
maintain excessive control over the development, however if he still owns a stake
(perhaps a parcel(s)) then maybe?
-You want to look at the Declaration, which should contain a provision that allows
the Developer to sue to enforce the covenants. Whether or not a court will allow
this depends on the jurisdiction that youre in.
Can a homeowners association sue? Yes (exception to a rule against benefits in
gross) because homeowners association doesnt actually own any land. However, is made
up of people who do, therefore it can stand in as agent for owners.
-You want to make sure that the homeowners associations right to sue is
- Declaration/grantee covenant: Describes common plan and lists covenants on
lot so that buyers will be on constructive notice of the restrictions if recorded prior
to purchase.

Interpretation of Ambiguous Covenants; Changed Conditions; Undue
Hardship; Statutory Regulations
Ways to get rid of a covenant (these are listed on p. 418):
Changed conditions: conditions have changed so much as to deprive the benefit to the
dominant estate.
o Analyze the benefit to the dominant estate-is the purpose of the benefit still
possible? (this is a very high bar-courts dont impose changed conditions unless it
is pretty clear that theres no more benefit).
Relative hardship: wont enforce a covenant if the suffering to the servient estate is huge
in comparison to the benefit conferred upon the dominant estate. If all things are equal,
we keep it.
Acquiescence: if the covenant has not been enforced over time, or has only been
enforced haphazardly, we may say it is over.
Abandonment is very similar to this
Unclean hands-a party tries to enforce a covenant which it itself has violated.
Estoppel-an owner of a dominant estate who orally represents to the owner of a servient
estate that he will not enforce the covenant may be stopped from asserting her interests in
enforcing the covenant if the owner of the servient estate changes his mind.


Laches-doctrine that bars someone from asserting a right after they have sat on the right
for too long (like a statute of limitations but there is no statutory time frame-this is a fact
specific issue).
Marketable title acts statutes that require re-recording of covenant for them to be
enforceable, and to ensure that parties bound by covenants are committed to them
Language in the instrument: is there a time limit in the language of the covenant?

Blevins v. Barry-Lawrence County Association for Retarded Citizens (1986):

Covenants are not popular, so will review narrowly. When there
ambiguity, interpret in favor of free use.
Defendant wants to house retarded persons in their property. Claim they are forming a
family unit-not a commercialized home for retarded people. Plaintiffs try to restrict this
arguing there is a covenant that forces said homes to be used for residential use only. The court
decides in favor of the non-profit group, arguing that it does not want to define a family.
El Di, Inc. v. Town of Bethany Beach (1984):
A town has a restriction on the sale of alcohol. It initially wins a permanent injunction
against El Di restricting its sale of alcohol. However, on appeal El Di wins with the court
deciding that the covenant no longer runs (it is 80 years later), especially since people are
brown bagging anyway.

Racially Discriminatory Covenants
**Shelley v. Kraemer (1948)
A black family purchases a house with a racially restrictive covenant attached to it. The
neighbors sue to enforce the covenant; case goes to the Supreme Court. Supreme Court says that
the deed itself does not violate the 14th Amendment because conducted entirely by a private
party, but a courts enforcement of the covenant would violate the 14th Amendment because it
would constitute government enforcement of racial discrimination.
Thus, the court refuses to enforce the deed. Note the Shelleys had an extra strong case
because they were living in the house already, thus enforcement of the covenant would require
state action not only in the form of a decree from the courts but also police action in removing
the family from their home.
*Problem with this decision: If any judicial enforcement of a contract becomes state
action as this case suggests, then constitutional implications arise with every private contract.
Thus, Shelley blurs (or even does away with) the line between the public and private sector.
Thus, Shelley is limited to its facts and not its fullest extent.
**Evans v. Abney (1970)
A Senator tried to leave in his will a public park that was only to allow whites. The court
rejects this, but returns to park to his heirs rather than keep it as a public park, arguing that if the
will cant be fulfilled, it reverts to the heirs. Controversial, because you have the closing of a
public park because it cant be racially segregated; however, the majority argued that this burden
fell on blacks and whites alike and thus there was no problem, and that there was a difference in

the role of the state here: in Shelley, court would have been divesting a black family of their
property, whereas here the government is enforcing a will and creating a burden that falls on both
blacks and whites (however, note that there may not actually be much of a difference, but in this
case the government upholds a private legal document whereas in Shelley it refused to do so).

Land Use Regulation and Exclusionary Zoning
Although we allow discrimination on the basis of class all the time in our Capitalistic society,
there are times when the disparity between the haves and have-nots is so extreme that the law
NAACP v. Township of Mount Laurel (1975):
No housing available in this township for lower class people. People in the town are
trying to keep taxes down. Court says this is not ok; Mount Laurel must change its zoning to
make it more feasible to create low income housing.
*Policy reasons behind this decision-dont want certain townships homogenizing
themselves and keeping out groups of people. Is this a slippery slope? And did the judiciary
overstep its bounds here, i.e. shouldnt this be an issue left to the legislature?
*NOTE: this case is a good example of Judicial Activism.




Present Estates and Future Interests

How we spread property out amongst people over time.

We give owners a lot of power.
Dont want a return to the feudal system though
There can only be one present possessory estate, however there can be multiple future

Our goals
1. Identify the present possessory interest; includes:
a. Freehold Estates
b. Defeasible Fees
2. Identify the future interest:
a. Might be in Grantors
b. Might be in 3rd party Grantee
3. Understand the rules that apply to those conveyances

6 Present Possessory Interests:

There can only be 1 Present Possessory Estate means there is a property owner in the
present, but there can be multiple future interests in the property.

1) First thing you have to do is Identify who owns the Present Possessory Estate.

2) Second thing is Identify the Future Interest Holder(s) know how they will get the
future interest.
1. Fee Simple Absolute (FSA)
2. Life Estate
3. Fee Tail
Defeasible Fees:
4. Fee Simple Determinable (FSD)
o this is a defeasible fee
5. Fee Simple Subject to Condition Subsequent (FSSCS)
o this is a defeasible fee
6. Fee Simple Subject to Executory Limitation (FSSEL)
o this is a defeasible fee


Fee Simple Absolute: you own the parcel and have all of the present interests.
There are no future interests. Largest, most complete estate you can have. Freely
alienable/divisible. If you lived forever, it would last forever.
-Conveyance looks like: O to A +heirs
NOTE: that the +heirs are words of limitation (dont know why they are
named words of limitation when in this case they convey the fact that the
ownership of the parcel is in fact unlimited but alright). It is not a grant to As
heirs. +theirs is just a way of saying A is getting a fee simple absolute: the
fullest most absolute estate possible. Note also this does not mean A has to leave
the property to his heirs). Lastly, note that today +heirs is not required to
convey a fee simple absolute. Normally, we dont require + heirs to convey
GSA because we have a presumption that unless were told otherwise, we assume
the grantor is transferring everything they have.
NOTE: O to A is called Words of Purchase
So, when O has conveyed the property to A, then O has nothing, the Heirs
have nothing, and A has everything.

Defeasible Fees: things that could happen that make one lose the property. These are
Present Interests that terminate upon a specified event. There are things that can happen that
could make one lose their interest in the property
1) Want to ask first is the fee simple in O or in a third party?, and
2) Second, what has to happen for the future interest holder to get it? Does it have to
happen automatically, or does the Future Interest holder have to do something to get it?
(I) If the fee simple is in the grantor, it will be either (and note that in both the
fee simple is in O):
A) Fee Simple Determinable-look for words of
duration such as: so long as, while, during, or until.
-This might look like O to A so long as the property is used as a
school. O has given the property to A but if A ceases to use the
property for a school, he loses the property.
Thus, upon the happening of a certain event, A
could lose their interest in the property; then the
property would go back to O.
So, at the time of the dash, A has a FSD; O has a
possibility of reverter.
There can only be one present interest holderand
at the time of the dash, thats A. O has the Future
Interest (a possibility of reverter).
o The Future interest is called a possibility of reverter-means
property automatically reverts to O. (note that O can do
what she wants with this interest)


B) Fee Simple Subject to a Condition

-Were looking for Conditional Language but if, provided
that, On the condition that.
o Example: O-A on the condition that the property is used
as a school, otherwise O has a right of entry
o The last part of that sentence was required under common
law; Modernly, its not necessarily requiredyou could say
a number of different things, or you could just leave it out.
o The Future Interest is called a Right of Entry. Future
Interest is in O, so O has a right of entry if property isnt
used as a school. If condition is violated, then O has to
assert her right to the property (it doesnt just
automatically revert as it does in FSD)
o So, at time of dash, A has FSSCS; O has a right of entry
(II) If the fee simple is in a 3rd Party Grantee, then:

C) Fee Simple Subject to Executory


-Also a defeasible fee

-Example: O A as long as the property is used as a school,
otherwise to B.
-A has FSSEL
-O has nothing
-B has an executory interest
-Doesnt matter if we have words of duration or words of
condition both result in FSSEL, provided that we can see that A
is getting the Present Interest and that the future interest is going to
a 3rd-party grantee.

Fee Tail: the grantor wants the conveyance to require that the property be kept in a family
dynasty (lineal descendants)
- Different from FSA because the bloodline could run out (not eternal)
- At common law, it couldnt be willed because it had to pass to linear descendants
- Example: O A and the (male) heirs of his body
o A has a fee tail, which means that the property eventually might not be in A or As
lineal descendants because their blood line might run out.
o O keeps a reversion, meaning that if/when the blood line runs out, the property
reverts back to O or Os estate.
- What if A sells the fee tail to X? The common law allowed alienation of the fee tail, but
this is called disentailing the fee thus it becomes a fee simple absolute to X,
destroying Os reversion.
- At common law, you couldnt will away a fee tail.


Almost all jurisdictions have gotten rid of fee tails. Rather, there have been 2 modern
o 1) Delete the and the heirs of his body and turn it into a fee simple absolute:
Just O A.
o 2) Some Jurisdictions compromise They will give A the life estate and As heir
will get a fee simple absolute

Wood v. Board of County Commissioners of Fremont County (1988):

The Woods conveyed property to the county for the purpose of constructing a hospital for
veterans. The hospital runs for a while but eventually shuts down and the county tries to sell the
land. The Woods argue that in the event that the land is no longer used for the hospital, it should
revert to them. The deed had no words of duration, so we do not have a fee simple
determinable. Nor is there a fee simple subject to condition subsequent, as there is no
conditional language in the deed.
As a result, the court rules that the Grantors (Woods) have no future interest, so the
Woods have no claim to the land: the Grantee (County) has a fee simple absolute because
nobody has a Future Interest. The County has the entire estate.
O-A on the condition that the property is used as a school.
-Without language to the effect of or O has a right of entry, there is a gray area where
courts may go either way. This was the problem in Woods-did the grantors intend to give
themselves a future interest even though they did not include language specifying a right
of entry? On the other hand, we have a presumption against forfeitures. For policy
reasons, dont want to disrupt ownership.
SUBSEQUENT to fee simple determinables.
o O-A as long as the property is used as a school, otherwise O has a right of
Whats the problem with this conveyance?
As long as is words of duration (indicates FSD!!)
otherwise O has right of Entry is words that indicate
when you have these two in one, the law prefers FSSCS,
because theres a Presumption Against Forfeiture


Future Interests
First thing you want to look at: Has the grantor reserved a future interest for himself?
o When Future Interests that are vested in a Grantor:
1. Possibility of Reverter
2. Right of Entry
3. Reversion
o When Future Interests that are vested in a 3rd Party Grantee:
1. Remainder
2. Executory Interests
HYPO: O-A as long as property is used as a school
We have language of duration this indicates a Fee Simple Determinable. This
entails a Possibility of Reverter.
o NOTE: keep in mind, that the moment that A violates the condition, then the
statute of limitation regarding Adverse Possession starts to run

HYPO: O-A on the condition that the property is used as a school, otherwise O can
retake the property
A has a Fee Simple Subject to Condition Subsequent (we have conditional
language, as well as stipulation of what will happen if condition is violatedO has
to assert the right)

Doctrine of Laches

O-A on the condition that no alcohol is ever sold on the property, otherwise O has
a right of entry
o So, when A gets the property, the community changes, and A decides to build
a microbrewery, and O waits till A sells the first beer, then O serves ejectment
o This can be Estopped in Court through the doctrine of Laches, somehow
because O should have given some notice or something to A.


Life Estates:

You give the property for the life of the grantee.

o O to A for life. (Might also say O to A for as long as A lives.)
o In this case, A has the life estate; we assume that O has the reversion (if O dies
before A, then the property goes to Os estate).
o A is the measuring life
o At the moment of the dash, the conveyance is vested in As interest, and it lasts as
long as the duration of As life.
Often however, O wants to give the future to someone else, so you will see:
o O to A for life, then to B.
o That future interest is called a remainder so B has a remainder and O has
What can A do with the life estate?
o Cannot will it away, because only have it during your life.
o However, can sell a life estate:
O to A for life, A sell Life Estate to X.
HOWEVER, this is only for the remainder of As life. When A dies, X
loses the property. Called a life estate per autre vie meaning X has
the Life Estate for the duration of the measuring life (duration of As
X can negotiate with the people who have the future interest for
after A dies, and work out a way to hold on to the property after As
death, perhaps negotiating their way into a FSA
If A sells the life estate to X, what happens if X dies before A?
Common Law Rule the first person who occupied the property
before the measuring life dies could have the property until the
measuring life died.
o So, X dies, and A is still alive, and then Bob comes onto the
property Bob becomes the General Occupant.
Modern Rule Xs family member can use the property until A
o Who would anybody want to buy such a piece of property? They are definitely
less marketable.
Sometimes, someone will give their child a Life Estate, and then protect
the property for their grandchildren by giving them the future interest.
Can you adversely possess a life estate? Sure. But you can only get as much as the
owner had. When owner of life estate dies, you will lose the property to the original
person (O).


Edwards v. Bradley (1984)

Grandma gives property to Jones but says if Jones tries to sell property to pay her debts,
she loses it (in other words, the property cannot be used to satisfy a debt). Court decides that
Grandmas intention was to give Jones a life estate (not a fee simple absolute) with the
property going to her grandchildren upon her death. So, since you cant will away a life estate,
which is what Jones tried to do with just one of her children, the court let all her children evenly
split the property.
Restraint on Alienation a condition on the property where O says that A cant sell the
property or use it to pay off their own debts. In the event that A violates the condition,
there is an automatic forfeiture.
A Life Estate is by its nature pretty limited; because of this, you can attach more
restrictions to a Life Estate than you can to a Fee Simple Absolute.
**NOTE: the rule in this case seems to run counter to the ideology behind the
Presumption Against Forfeitures the idea that we dont want to lock down propertys
potential uses according to Os desires.
-Presumption against forfeitures: if there is a dispute, apply presumption against
forfeitures. In this case, would weigh in favor of the fee simple absolute because it is less
disruptive. HOWVER, in this case the court preferences the grantors intent over the
presumption against forfeitures and chooses the life estate.

Duties of holder of the life estate:

Has more obligations than someone holding an FSA; they dont hold the future interest.
At some point in the future someone with a vested interest in the property is going to get
it, so what are the duties of the life estate holder? See Moore v. Phillips
Life estate holder has a duty to pay certain costs.
o 1) Interest on the mortgage. The future grantee pays the principle because they
are the ones who will eventually obtain a fee simple absolute. We dont want to
impose on the Life Estate Holder the burden of paying for the actual value of the
property, since they dont have any future interest.
o 2) Life Estate Holder has to pay the Taxes and Insurance on the property.
o 3) Life estate holder also has a duty to maintain the status quo they dont
have to make the property better, but they cant make it worse.
o Duty not to commit waste.
A) Voluntary Acts of commission by the Life Estate Holder that may
waste the property (detract from the value of the property)
Must look at the nature of the property and how it is used.
B) Cant commit acts of Omission either-do nothing to maintain property
and allow it to rot away.
C) Question of ameliorative waste-you increase the monetary value of the
property but in a way that is inconsistent with what the grantor meant to
convey and what the remainder-men thought they were going to obtain.
This is less clear-cut and is case specific.


Moore v. Phillips (1981)

Remaindermen are trying to recover for waste created by the holder of the life estate.
Doctrine of laches involved here-laches is an equitable doctrine that can be applied if one sits on
their rights for too long. Applies if the other party starts to relax on their property.
Court ultimately decides that the doctrine of laches is not applicable; thus the
remaindermen can recover for the life estate holders waste.



Grantees Future Interests

1. Remainder
o A) Vested
o B) Contingent
2. Executory Interest
o A) Shifting
o B) Springing
Tenancy for yearso O to A for a certain number of years (reversion to O is implicit)
1) Remainder-follows naturally and on the conclusion of the prior estate
-Never in favor of the grantor-always in favor of the third party grantee.
-Follows life estates and tenancy for years.
-The remaindermen waits until the prior estate concludes, though the interest is vested at
the time of the initial conveyance.
-O-A for life, then to B B doesnt possess the land until the conclusion of the
prior estate.

A) Vested Remainders

Vested Remainders Absolute-an interest in a third party grantee where possession

follows naturally on conclusion of the prior estate.
o At the time of the dash, the future interest holder is alive and takes the measures
necessary to claim the property.
o Vested remainder absolute if you know who the grantee is and there are no
conditions that need to be met prior to vesting.
o O-A for life and then to B
B is alive and we know who they are and there is no condition for their
taking, therefore we have a vested remainder absolute.
What if B dies before A? Because this interest is vested (as opposed to
contingent), the vested remainder absolute is part of Bs estate (he can
pass it to someone through a will, or if no will it goes to Bs heirsdoes
not get destroyed).
Vested Remainders Subject to Partial Divestment (or Subject to Open)-a remainder
in favor of a group where at least one member of the group is ascertained and has
met the conditions to be in the class.
o O-A for life, then to Bs children in equal shares
X is Bs only child at time of dash, so: X=VRSTPD, and Xs share can
diminish over time if B has more children
What happens if another child comes along? Say at the time the deed is
drawn B has only one child X. Xs remainder is not absolute, but is


subject to open, because if B has another child Y, X and Y then each have
a 50% share. Note that this is only for the period of As life. Once A dies,
the land passes to Bs children equally. If B then has another child, that
child has no interest (rule of convenience).
o What if you have O-A for life, then to Bs children who reach 18?
When does this class close?
General rule, is the rule of convenience. This is intended to maintain
some security in the property. The rule says the class will stay open until
the prior estate terminates. Therefore, all of the kids of B who reach 18
during As life can take. However, once A dies, if a child of B did not turn
18, they lose all interests in the property.
If A dies before any of the children turn 18, you have a contingent
remainder (see below).
Vested Remainder Subject to Total Divestment-this remainder is a vested remainder;
however, there is something that could happen that could completely divest the future
owner of the property.
o O to A for life, then to B, but if B does not graduate law school, to C
o At the time of dash, the Present Interest is in A, and Future Interest is in B, but B
could lose it.

Grantees future interest Continued:

1) Remainder Continued
A) Vested remainders
B) Contingent remainders-There has to be a condition fulfilled PRIOR TO VESTING.
-Were looking for situations where the remainder is only going to take place
upon the occurrence of some event that hasnt yet happened, or if the 3rd party is
Different condition precedents listed below:
Where a child has to be born
O-A for life, then to first child of B (but B doesnt have any children at
the time of dash)
Age requirement
O-A for life, then to Bs children who reach 18) (at time of the transfer, B
has no children who are 18 yet)
Terms of art like widow or heir can only have a widow or heir when
you die. Prior to your death we do not know who your heirs or your widow are
going to be (perhaps when you die, you are married to someone different).
Sometimes the Grantee must do something to get the property (i.e. B must get
married or B must go to law school).
o Contingent remainder examples:


(O to A for life then to B if B graduates law school). B has a contingent

remainder because he can only get the property if he graduates law
(O to A for life, then to Bs first child)(B has no children at time of dash).
Contingent remainder because we cant give the interest to that first
child until we figure out who that first child is. Also, note that O still has
the reversion.
A has Life Estate
For B, his child doesnt have a Vested Remainder, because at the
time of the dash, B doesnt have a child (so the grantee isnt known
as per requirement of Vested Remainder), so Bs unborn child has a
Contingent Remainder. At the time of the childs birth, then the
child has a Vested Remainder Absolute, and O no longer has any
o When does the class close?
Rule of convenience says that when you have a class gift, you close the
class at the conclusion of the prior estate (see earlier notes), but essentially
close the class when A dies.

2) Executory interest: future interest that cuts short the prior estate or follows a
gap in season. There is a vested interest subject to partial divestment. Never vest until
possession (not vested at the time of the dash/conveyance).
o These are future interests
o A) Shifting Executory Interest-interest is going to shift from X to the
unborn children
O-A so long as the property is being used as a school during As lifetime,
otherwise to B.
B has a shifting executory interest. No springing because it doesnt go
to O.
A has a life estate subject to executory limitation, and
o B) Springing Executory Interest-these are Executory Interests in
favor of the 3rd party. They follow gaps in season. Springing out of O, the
o Example: O-A for life, then one year following As death, to B.
A has the life estate.
O has a Reversion gets the property back for one year when A dies, then
the property springs to B. O has an executory interest for one year (a gap
in seisen.)(subject to Executory Limitaion)
B has a Springing Executory Interest.
O-A upon As marriage. Springing interest in A. (this is a weird one)
*Note that future Interests are either (1) Remainders or (2) Executory Interests. Remainders
follow life estates.


Rule affecting the transfer of property

Doctrine of Merger:
o O-A for life, then to B B has a vested remainder absolute. Say A goes to B
and buys the future interest. A now has a fee simple absolute. The doctrine of
merger says that this is ok with one small caveat: you cant apply merger if you
have an intervening future interest:
o Say you have O-A for life then to B for life then to C.
B has a vested remainder life estate.
C has a vested remainder absolute.
If A tries to buy the property from C, he cannot use the doctrine of merger
because of Bs intervening vested interest. Note you could squish together
the present and future interest if the intervening interest is not vested.
o Say you have O-A for life then to B for life if B is married, then to C.
A has a life estate,
B has a contingent remainder life estate, and
C has a vested remainder absolute. As contrasted with the last example, A
and C could get together and merge their interests thus cutting out B.
Doctrine of Destructibility of Contingent Remainders: Common law rule was the
contingent remainder is destroyed at the time the prior estate ends if the condition not
fulfilled. Example:
o O-A for life then to B when she reaches 21. Old rule destroyed the remainder if
B wasnt 21 at the time of As death. The new rule gives B a chance to turn 21. In
the meantime, O has a reversion. B therefore has a springing executory interest.
Rule in Shelleys Case: In the same conveyance you see a grant of an estate to a
grantee and the remainder to the grantees heirs:
o O to A for life then to As heirs
The law says you cant do this, you cant give a remainder to the heirs
of a life estate so you just strike through that part that is offending and it
becomes a fee simple absolute to A. The reason for this rule was that
landowners were trying to get around tax payments. A can still pass the
property to his heirs, but will have to do so in a separate conveyance so
that the parties dont get around tax burdens.
A has a life estate and
As heirs have a contingent remainder.
*B: Must be a term of artif actual people are listed instead of the term
As heirs then the Shelley rule is not applicable.
Doctrine of Worthier Title: Applies to cases where O is trying to give the present to one
person and the future to its own heirs.
o O-A for life then to Os heirs needs to be changed so that O cannot avoid


Changed to O-A for lifenote that O keeps the reversion. This is a

rule of construction, not a rule of law so when challenged we dont
automatically destroy the interest to Os heirs (different from Rule in
Shelleys case).

Johnson v. Whiton (1893)

Rule against the creation of new estates. Cannot convey land in a manner that doesnt
fit into one of our existing categories.
Rule of perpetuities: You can control the future to a certain point, but after a certain time the
rule will bar the conveyance. NOT ON EXAM.


Restraints on Alienation
Horse Pond Fish & Game Club, Inc. v. Cormier (1990)
Restriction on the clubs property against future sale of the land without approval of
100% of the members. At common law, any restriction on a fee simple absolute would be
repugnant to the fee (against the nature of the fee simple absolute).
The more modern trend (which the court applies) is to look at Reasonableness. One of
the things the court looks at is how the restriction gets lifted. In this case, 100% vote was a
pretty high bar, thus the court ruled that if the club was not a charity, the restrictions were too
stringent (note that if the club was a charity, a different standard would be applied).
Northwest Real Estate Co. v. Serio (1929)
Real estate company put a restriction on a deed saying that it must approve any future
sales of the property. Court found this repugnant to the fee simple title and said it was not
allowable. (Note that this court applied the old ruledid not consider reasonableness of the
Riste v. Eastern Washington Bible Camp, Inc. (1980)
Bible camp tried to put a restriction on sales of property in the deeds it conveyed. Court
said that the camps conveyance of a fee simple absolute negated any restriction they could
try to place on it. Court notes that if the church had its own property it might be justified in
restricting conveyances to people of its own faith, however it cannot sell to someone and then
restrict whom they sell it to.
Aquarian Foundation, Inc. v. Sholom House, Inc. (1984)
Buyers have an agreement with the homeowners association whereby the only way you
get fair market value for your property is by selling against the home associations wishes. Court
invalidates the agreement saying it was illusory. Therefore, she can sell it.
Wolinksy v. Kadison (1983)
Association tried to exercise its right of refusal against a tenant who tried to sell her unit and
buy another. Court lays out a two part test for when the right of first refusal is alright: (1) is
the association acting in best interest of the property owners, and (2) is it doing so in a nondiscriminatory manner?

Typically take restraints on alienation of fee simple absolutes to be unenforceable.

Law is trying to protect the way you look at private property and the fact that when
people purchase it they want to be able to do with it what they please.
o In certain cases, where a restraint is very limited in time or only applies to a small
group of people the court may uphold it.


Agreements where you have a right to buy ones property are held unreasonable if there
is no fixed time frame/if there is a fixed price. This makes the right unfair/ contrary to
public policy.


Part 5: Concurrent Ownership & Family

Common Ownership

Modern presumption is that a conveyance to more than one person (and the people
arent married) is that it is a tenancy in common.
With tenancies in common and joint tenancies, every owner has an undivided interestno matter what their share, they get to enjoy full use of the property. (can modify this by
Percentage of ownership will matter when the property is sold25% ownership will
result in 25% of the profits.
Tenancies in common are like a fee simple upon deathif you have a 25% interest in
the property and you die, your 25% interest will pass to your heirs/whoever you will it to.
If you convey property to people as tenants in common without specifiying percentages
of ownership, we assume they have even shares.
Say you have O-A and B as tenants in common with A taking 75% and B 25%...both
get to use the full property.
If you have a tenancy in common, A can enter into a lease with a third party for his
share of the tenancy in common. Does not have to get consent from the other owners (B),
unless they are going to be subject to the lease (i.e. if the property hasnt been divided,
the third party now gets to use the whole property so B must be consulted-check on
Partitioned in kind-court may partition the property if there is a problem amongst cotenants and they file a lawsuit. If it is not appropriate to do that, (i.e. a one room
condominium unit) the court may order a partition by sale (court orders the property to
be sold and each party gets their corresponding interest in the profit).

Carr v. Deking (1988)

Father and son were tenants in common. Father leased property to Deking without
consent of his son, and subsequently passed away. Son sues to get Deking off his land. Court
decided that the elder Carr could lease the property without his sons consent. Son therefore has
no right to eject Deking, however he does have the right to either accept the lease or seek a
judicial partition (Joel can recoup his share of the lease profit or can partition the land). He is
therefore stuck with his fathers decision to lease the property.


Joint tenancy

Undivided interest like tenants in commoneach tenant has right to possess entire
property. However, in joint tenancy they all have equal shares.
Cant will your interest away in a joint tenancythere is a:
o Right of Survivorship-when one co tenant dies, his share passes
equally to the other tenants.
Easy way to remember the Four Requirements of Joint Tenancy TTIP:
o 1. Time-if going to be joint tenancy, property has to be conveyed to tenants at
the same time
o 2. Title-joint tenants must acquire title by the same instrument (by the same
o 3. Interest-all tenants must have the same interest in the property (same
percentage ownership)
o 4. Possession-all tenants have the right to possess the entire property
Some jurisdictions either dont require all these formalities or dont recognize joint
tenancy in general.
One of the problems with joint tenancy is that they would be largely inalienable but for
the fact that you can destroy them easily. Just as with a life estate, you do not get to
leave the property to whom you want to when you die. However, you can sever a joint
tenancy thus making them more alienable. Then you end up with a tenancy in common:
o Say you have A and B as joint tenants. B wants to convey his interest to C.
Unities are destroyed: joint tenancy is severed. A and C are therefore left as
tenants in common. Therefore, the right of survivorship can be destroyed
fairly easily.
NOTE: if you had three owners, the two who did not convey their interests
are still joint tenants, but the third party who bought Bs share is a tenant
in common with a 1/3 interest. Then if one of the two joint tenants dies,
the other one takes his share through right of survivorship and becomes
tenants in common with C who was the original buyer of a 1/3 share.
o Say A and B are joint tenants but B wants it to be a tenancy in common without
losing his interest in the property. He can convey his interest to C, his lawyer or
friend, and then buy it back, thus the joint tenancy has been destroyed and B is
now a tenant in common with A.
Partition is available with a joint tenancy just as with tenancy in common. Tenants can
still go to a court to get partition in kind or partition by sale.

Tenhet v. Boswell (1976)

Joint tenancy can only be created by express intent. Some courts say that a lease
severs a joint tenancy. (There is some split amongst courts as to what a lease does). Court puts
the burden on the purchaser to do a title search.
Kresha v. Kresha (1985)
Husband and wife have two pieces of property. Husband leases one part to son. When he
and wife get divorced and she gets the property, she has to honor the lease.

Burdens and benefits of co-ownership

General rule: there are legal obligations of co-owners to share in the benefits and
burdens of property. Parties can contract to modify this.
BENEFITS: The number one benefit is possession (which we talked about previously).
Legal fiction here that each co-owner has an equal right to possess the whole. However,
logically this doesnt make any sense (how could they all possess the property at the same
o Generally, if you are a co-owner and you choose to live on the property, you dont
have to pay rent to the other co-owners who do not live there.
However, there are exceptions to this.
Ouster is one such exception. This is where one co-owner has
physically kept another co-owner off of the property. If A changes
the locks and forces B out, then B does have a cause of action
against A (is exercising a right to share in the property). Note
that percentage interest does not matter here.
o Constructive Ouster-the property by its very nature is incapable of housing
both people at the same time (think a studio apartment with co-owners). B might
make an argument that he has been constructively ousted.
o Rents from 3rd Parties If one co-owner is renting out the property, the other
co-owner can claim his share of the rent. Note that B does not have a veto right,
but rather the choice of sharing in the profits or suing for partition of property.
B could also lease his interest in the property to another (a 4th) party.
o Basic Expenses mortgage, insurance, and taxes on the property.
Generally co-owners have a duty to share mortgage/upkeep proportional
to their shares of the property.
No duty to share major improvements however.
Maintenance and repairs are typically not shared, although this rule
gets modified in some jurisdictions, especially when one owner is in
o Even though A need not contribute if B decide to put in a swimming pool, if the
two parties then decide to partition, the courts can take things like that into
account. This is not an exact science.

Olivas v. Olivas (1989)

Husband and wife divorce. Husband moves out, then tries to charge the wife rent arguing
that he was constructively ousted from the home. Court disagrees with him, especially in light
of the fact that he left his wife for another woman. The court does note that constructive ouster
doesnt require any affirmative act on the wifes part, however this case was not one of
constructive ouster.



Tenancy by the Entirety

Similar to the joint tenancy-requires all the same four formalities (T.T.I.P.).
o Only legally-married couples can have a tenancy by entirety. Lots of states got
rid of tenancy by the entirety after the married womens property act.
Married Womens Property Act were intended to give women more property rights.
Some states took the act to mean destruction of tenancy by the entirety and some did not.
With tenancy by entirety, you need consent by each spouse for any serious conveyance
of the property.
Partition can only occur upon a divorce.
One cannot will away their interest in a Tenancy by the Entirety, even with the other
spouses consent. This would defeat the Right of Survivorship, which is the essence of
the tenancy.
Courts are split on whether a contribution action can be brought as between co-owners,
but even those jurisdictions that dont allow contribution actions during co-ownership
may take into account the respective monetary interests of co-owners upon partition.

Sawada v. Endo (1977)

Sawadas are injured by Mr. Endo in a car crash. He has no insurance/money to pay them,
so they go after his property. However, during this time Endo conveys the property to his sons.
Court holds that the property held in tenancy by the entirety cannot be attached for the debts
of one spouse that were incurred independent of the other so it doesnt matter about the
conveyance (right of survivorship). Because spouses need to give consent to conveyance of
property held in entirety, one spouse cant independently enter into debts that potentially involve
the property.
Policy behind this comes from the fact that the court recognizes a lack of residential
property in Hawaii and wants to protect the family unit.



Leasholds And Rent Conflicts


Leasehold Estate: The landlord relinquishes the right to possession to a tenant, but
NOT the right the alienate disaggregating the interests.
*POLICY NOTE: remember that the law is much more likely to develop doctrines for
Residential Property compared to commercial property.

Duty to mitigate
Sommer v. Kridel (NJ, 1977, p. 663):
- There are two cases here, both involving a tenant backing out of his lease and the
landlord waiting, failing to mitigate, and suing for damages constituting all of the
unpaid back rent
- In the first case, the landlord actually had a ready, willing and able replacement tenant
and turned him down; in the second case, its unclear whether the landlord could have
- Issue: Does the landlord have a duty to mitigate damages?
- The court rejected the traditional rule that a landlord has no duty to mitigate.
- Rather, a landlord does have a duty to mitigate damages for a residential lease this is
consistent with basic fairness.
- Mitigation requires that the landlord make reasonable efforts to re-let the apartment,
treating it as if it were any of his other vacant units.
- The burden is on the landlord to prove that he used reasonable diligence in attempting to
re-let the unit.
- Note that the landlord is not actually required to mitigate, but his damages will be
reduced as if he had, so its in his interest to mitigate.


Term of Years Tenancy:

o Can run for any specified period of time;
o At the end of the term, the tenancy is over; death (of landlord or tenant) doesnt
end a tenancy for years. So, it ends naturally, by its own terms.
o The landlord retains a reversion; at the conclusion of the agreed-upon time
specified in the tenancy, the interest reverts to the landlord.
Periodic Tenancy:
o Renews automatically (i.e. month-to-month) and most jurisdictions require one
months notice to cancel (state statutes can modify this);
o death doesnt end a periodic tenancy
Tenancy at Will:

o A tenancy that can be terminated without notice.

o This is an informal, quasi-unregulated tenancy.
o Many jurisdictions dont even recognize this, since its essentially a month-tomonth tenancy in practice.
o Death of either the landlord or the tenant ends a tenancy at will.
Tenancy at Sufferance:
o A tenant rightfully in possession who wrongfully stays after the leasehold has
Regulation of Landlord-Tenant Relationships:
o Procedural Regulations (pg. 641) impose formal requirements for creating the
landlord-tenant relationship
o Substantive Regulations (pg. 641) Give more depth as to how the parties are
to deal with each other
o At what point can a landlord evict a tenant?
We shy away from self-help


- Current rule: Landlord has the duty to deliver possession of the rented premises to the
tenant at the beginning of the leasehold
- Traditional rule: Landlord has the duty to deliver the right of possession but not actual

Landlords and Tenants: Subletting and

Majority rule: landlord must deliver possession of the premises at start of lease.
o Minority rule (very rare): landlord must only deliver the right for the tenant to
possessif someone is living there, it is for the tenant to initiate eviction
What can landlord do with their interest in the property (Reversion) once they have
leased it?
o Landlords interest is vested at the time the lease ends.
o Landlords can transfer their reversions.
Typically the landlord is selling the property and the new property owner
is taking the property subject to all the limitations on it.
Difference between a sublet and an assignment:
o A Sublet pretends that your tenancy is a piece of a pie, and you cut out a piece of
it to the subtenantthe tenant always retains an interest and thus is acting as a
landlord over the subtenantwill get property back before it goes back to original

o An Assignment is different in that the tenant who is assigning to a subtenant is

completely conveying their interest in the property to the subtenant. Tenant still
has some obligations under the original lease, however now someone new is
standing in their shoes.
Tenants rights to assign or sublet 3 Typical Scenarios
o 1) Lease is Silent on the Issue: In absence of a prohibition, you have the right to
assign and sublet.
POLICY: Default presumption is that these interests (alienability
interests) are apparent. We generally promote the free alienability of
o 2) Another scenario is where the lease agreement requires the landlords
consent for any sublease or assignment of the property:
If no reasonableness standard written in the agreement, landlord
reserves the right to reject for any reason a sublet or assignment.
Courts wrestle with whether or not they should infer a reasonableness
standard in such agreements.
o 3) You could have a lease that categorically prohibits sublets or assignments.
You can have much greater restrictions on the transferring of
leasehold property than you can with Fee Simple property.
Courts are split over commercial and residential leases here, generally
enforcing these with regards to residential leases but REJECTING them
in commercial contexts (opting for a reasonableness requirement).
NOTE: the majority rule enforced the landlords right of arbitrary
refusal, but the current trend is towards imposing a reasonableness

Kendall v. Ernest Pestana, Inc. (1985)

Tenants leased an airport from Pestana. When they tried to sublease their interest to
Kendall, Pestana said no. Question is whether Pestana can arbitrarily refuse to consent to the
-General majority rule says YES so long as not for a discriminatory reason; if the
lease contains a provision that only allows for subleasing upon approval from the landlord, then
the landlord has binding say on what goes.
-However, the Growing Minority Rule and trend is towards forcing Pestana to have a
reasonable objection to the sublease.
-This is grounded in TWO POLICIES:
1) first, our growing, urban society needs free alienability of commercial
property to grow.
2) second, the lease is a contract and there has been an increased recognition of
and emphasis on the duty of good faith and fair dealing inherent in every contract. Thus
each contract has an implied covenant that neither party will do anything that will
prevent the other party from enjoying the fruits of the contract.
-Thus, the lessors discretionary power should be exercised in good faith and according
to a Reasonableness Standard.
*Defendants arguments (which court rejects) are the following:


1. lessor conveyed property to lessee, and has no obligation to receive rent from anyone
2. an approval clause is an unambiguous reservation of absolute discretion in the lessor
over assignments of the lease. Lessee could have but didnt bargain for a reasonableness
3. doctrine of Stare Decisis: courts should not depart from the traditional rule because it
would wreak havoc with the myriad existing leases and promote needless litigation.
4. Lessor has a right to realize the increased value of his propertythe increased value
of property during a lease should benefit the lessor, not the lessee.
Court rejects all of these arguments. Dissent argues for following the weight of authority
(the majority rule), which would have given Pestana the right to refuse the sublease. To rule
otherwise would be rewriting the contract for the parties, something courts should not do in this
Slavin v. Rent Control Board of Brookline (1990)
Slavin is a landlord. His tenant tries to sublet his apartment. Slavin has to go to the rent
control board when he refuses to allow this. The court sides with Slavin, arguing that although
with commercial leases the trend is to enforce a reasonableness requirement, landlords in
residential situations do not have to succumb to a reasonableness requirement
POLICY: one of the key reasons behind this is that to rule otherwise would result in a
plethora of litigation about whether a landlords withholding of consent was reasonable.


Covenant of quiet enjoyment and the doctrine of

constructive eviction

Covenant of Quiet Enjoyment Landlord impliedly promises not to disturb the

tenants quiet enjoyment of the property
If the landlord uses another part of the property in such a way that you cant enjoy your
property, you complain and the landlord doesnt do anything about it, what should
o There is an Implied Right of Habitability. This has changed the landlord-tenant
relationship over the years. It is the reason why we dont see the Covenant of
Quiet Enjoyment as much these days
o Note that actual eviction occurs when the landlord changes the locks. Compare
with constructive eviction:
Landlord can act in such a way that forces the tenant to move out
(constructive evictionsay his wrongful conduct substantially interferes
with the tenants enjoyment of the leased property). We see this less often
these days in the residential context because constructive eviction
typically required the tenant to actually moved outif they did not move
out theyd have a difficult time making a constructive eviction claim.

o NOTE: remember that you need to give landlord notice, give him time to fix
situation, and in some jurisdictions, you need to move out.
If you do have a case of constructive eviction, what do you do?
o 1) What constitutes wrongful conduct by the landlord?
A) First thing you do is look to the lease, but often times the lease wont
tell you.
Does the lease say that one party or the other is responsible for
covering certain specific costs?
Implied Terms need not be written down or even explicitly
discussed to be legally binding.
Express Terms explicit language in the lease that defines the
duties of each party
o 2) Second question to ask is what constitutes a substantial interference? Is the
interference so substantial that it rises to the level where you can invoke the
Doctrine of Constructive Eviction?
Not a Clear Test. At what point can you walk away and break the lease,
invoking the Doctrine of Constructive Eviction? Must give the landlord a
chance to fix the problem for one.
Theres a covenant of Good Faith and Fair dealing implicit in all

*When talking about the landlord, were looking for things that the Landlord is actually doing
(Commission), as well as circumstances where the landlord isnt doing anything (Ommission).
-To what extent can we hold the landlord liable for the wrongful acts of other tenants?

If you successfully bring a claim of Constructive Eviction, then you can bail on the
lease and not be financially responsible
You have to show that youve given the landlord notice
Must give landlord time to fix the problem
You have to vacate the premises within a reasonable amount of time.
Minjak Co. v. Randolph (1988)
Randolph rented a loft. Landlord Minjak decided to renovate the building making most of the
loft uninhabitable-leaks, sand blasting, construction, etc. Randolph stops paying the full rent
and Minjak sues. Randolph alleges constructive eviction from 2/3 of the loft. Randolph winsCourt says they dont have to pay 80% of the rent (rent abatement). Court says that a tenant
may assert a defense of constructive eviction even if the tenant has only abandoned a portion of
the premises. Considerations of SOCIAL POLICY and fairness dictate such a result. (Note
that plaintiffs couldnt apply the implied doctrine of habitability because their premises were
used for both residential and commercial purposes, not just residential. Therefore, plaintiffs
were in something of a bind unless they could explain that part of their property was used for
residential and part for commercial purposes (helped that they could show they used most of
their property for living space)).
Court also awards them punitive damages, which are rare in breach of contract claims but
the court says are appropriate when awarding them will deter morally culpable conduct.


**Second restatement makes it easier for a tenant to bring a constructive eviction claim:
If the landlord OR someone attributable to him interferes with the use of the property by
the tenant, constructive eviction may be appropriate. This makes the standard for
constructive eviction lower than the traditional rule laid out (as mentioned above).
This newer interpretation of the rule takes away the requirement that the tenant move out
(very importantmuch easier to raise constructive eviction claim).

Blackett v. Olanoff (1976)

Tenants leased property but could not fully enjoy it because of noise caused by a bar
nearby which the landlord rented out to a nightclub. Tenants argue that because the landlord had
the ability to control the behavior of the nightclub, his failure to do so constituted a breach of
the rental agreement and they were entitled to raise a constructive eviction defense to their
refusal to pay rent.
NOTE: it may matter whether they rented with knowledge that the nightclub was there,
or if they were there and then the nightclub moved in.


Implied warranty of habitability

Pro-tenant doctrine as opposed to the common-law.

Every state has some form of an implied warranty of habitability.
Two prongs for establishing claim:
o 1) Must give landlord notice of whats wrong with the premises.
o 2) Must give the landlord a reasonable time to fix the problem.
If bringing this action, you need to be sure that the implied warranty of habitability has
actually been breached. Ask were the defects so substantial as to make property unfit
for human habitation?
Other things that affect our understanding of human habitation standards. Look to:
o Housing codes for the area. Use them to see if you fall below the standard of
Some jurisdictions see housing codes as merely informative, not
dispositive. In these cases you dont just look to the housing codes. These
jurisdictions then use a common sense approach in considering whether
the property is fit for human habitation.
o Ask: how heavily does it depend on the state of the property when the tenant
moved in vs. if the property deteriorated?
Matters mostly in the calculation of damages. If you move in and the
apartment already below standard, landlord has already breached. If you
are paying for a shitty apartment (paying very little rent), your damages
are not likely to be as high as if you are paying market value for an
apartment that then deteriorates, causing you to pay more than the land is

The other thing you have to figure out is what are your options:
o Rescission of the lease: tenant rescinds the lease and sues the landlordtenant
moves out.
o Tenant can remain in possession and withhold rent: tenant sticks around but
stops paying rent. Typically, landlord tries to sue tenant and tenant uses the
violation as a defense.
Need to be mindful of the statutes governing this process-statutes often
require things of a tenant before the tenant is allowed to stop paying rent
(i.e. tenant needs to go to housing office and get an inspector to look at the
property before just arbitrarily deciding to stop paying rentanother
situation is where tenant must pay the rent to an escrow account. If the
government finds that the standards of the property dont deserve rent,
tenant will get his money back).
o Tenant remains in possession and uses Rent Abatement. Rather than
withholding entire rent, tenant withholds a portion of the rent. When landlord
sues tenant, tenant again use implied warranty of habitability as a defense.
o Repair and deduct remedy: Tenant stays in possession and fixes the problem
himself, then deducts the cost from the rent.
o Tenant can remain in possession and sue for damages: tenant has had some
actual harm above and beyond the rent that he needs to be compensated for. Some
jurisdictions even allow you to sue for an injunction to force the landlord to bring
the property up to code.
o Administrative remedies: In places with robust rental markets and lots of
conflicts, the jurisdiction may have set up an administrative remedy. Thus, there
may be rules about mediation processes or housing inspectors or other procedures
the city has set up.
o Criminal proceedings: cases where the appropriate action is a criminal
proceeding against landlord.
Cant waive the warranty of habitability for the most part. If its inherent, cant waive
Uniform Residential Landlord and Tenant Act
o Essentially a statutorily codified warranty of habitability
o About 30 jurisdictions have adopted it
o Does allow limited waives of warranty of habitability

Javins v. First National Realty Corp. (1970)

Tenants brought suit against their landlord because the conditions in their apartments
were horrible. Court invoked the doctrine of the implied warranty of habitability, stating that
the tenants have a right to habitable property and it was up to the landlords to provide it.
POLICIES supporting this: enormous strain on residents-this is a social negative.
*NOTE: it was important that the apartments were habitable when the tenants first
moved inthen the apartments deteriorated. Had the tenants bargained for shitty apartments in
the first place, the court would be laying out a much shakier foundation for the rule.


Retaliatory Eviction

Today, most states have statutes regarding retaliatory eviction.

Typically, tenant complains, landlord serves eviction notice within a certain number of
days defined by statute (note that if the landlord brings eviction proceedings after the
defined time period, a tenant doesnt get the benefit of the presumption that the eviction
is retaliatory. Instead, the tenant must prove that the eviction is retaliatory if the eviction
is beyond the statutory period.)
o There is a presumption in most jurisdictions that the eviction is in retaliation for
the complaint.
o As a result, the landlord has to present evidence of non-retaliatory reasons.
Assuming he is able to do that, the tenant has the ultimate burden of proving their

Hillview Associates v. Bloomquist (1989)

Trailer park residents begin a renters association because of the poor conditions in their
trailer park. After a contentious meeting with the managements representative, several of the
ringleaders get evicted. All of the ringleaders but one have a valid retaliatory eviction defense
because management cannot evict them for forming such an association and complaining.
However, one ringleader was correctly evicted because at the meeting he physically
assaulted the management companys representative.
Imperial Colliery Co. v. Fout (1988)
Fout worked for a mining company related to the company he leased his house from.
When he participated in a labor strike, he was evicted. Fout argues retaliatory eviction, but the
court rejects this defense saying the activity that triggered the eviction must be incidental to the
In other words, there must be a nexus between the eviction and the tenants activity,
such as in the case where a tenant complains and gets evicted the next day.
In this case however, Fout protests against the mining company, then gets evicted, and the
court says the two are too unrelated to support a retaliatory eviction theory.
*POLICY is that we dont want the landlords to lose ALL power as to who lives on their
*Court did mention that the tenant here could bring defenses under other theories, just not
under retaliatory eviction.
Robinson v. Diamond Housing Corp. (1972)
Landlord evicts tenant, who raises successful defense of retaliation. He tries to evict
again arguing that he is unable to make repairs on the premises and just wants to end the periodic
tenancy. Again tenant successful raises the defense of retaliatory evictionlandlord needs to
show a legitimate business justification for taking the property off the marketthe mere desire
to do so is not a legitimate business reason.


*Dissent said that such decisions will dissuade landlords from investing in housing for
rental purposes.

Martial Property

Separate property (majority view): spouses own their property separately, but have a
legal obligation to support each other. Note that if they choose to share or mingle their
property with their spouse, that spouse may attain some sort of ownership right.
o Property earned after the marriage, like wages, remains separate.
o Upon divorce, statutes enforce equitable distribution of property.
Factors to consider in equitable distribution of property include:
age of parties,
length of marriage,
what one person gave up to help the others gain,
need of the parties (including child support),
status (maintaining the lifestyle lived during the marriage),
rehabilitation, and
sometimes, fault About a quarter of states allow fault to be
considered, and about a quarter reject a consideration of fault when
dividing the property.
Statutory forced share: in separate property states, if a spouse tries to will away all his
property, many states have statutes allowing the state to come in and take part of the
property in order to give it to the surviving spouse, so as not to leave people destitute.
o Usually 1/2-1/3, and based on length of the marriage.
o Elective share rule-some jurisdictions allow the surviving spouse to take under
the forced share statute or under the will (whichever is greater).
Homestead laws: Creditors cant take the home of a deceased spousethe home is
protected so as to shelter his wife and kids.
Premarital agreements: can contract away from rulessay if the marriage doesnt last,
this is what we walk away with.
Community Property: what you own prior to marriage remains yours throughout
marriage. After the point of marriage however, whatever you get by gift or inheritance is
still your own property.
o Everything you earn however, is community property.
o Note: you can transmute inherited or gifted things, by contract, making them
community property even if they otherwise would have been separate property.
o Courts sometimes have to deal with Comingling parties will inherit or obtain
separate property but both use it and make it seem as if it is community property.
Courts then need to figure out whether it actually is community or not.


o Upon divorce, community property is split 50-50.

o Upon death, you can will away all your separate property and half the
community property (your share).
Generally when you come into the marriage with something that can change in value,
like stocks, and the stocks take off during the marriage, this is still separate property.
o However, in certain cases, this may become community property. (Say
husbands primary job during the marriage is managing his stocks and his
portfolio goes wild, and he is mixing his capital and his labor, then this might
become community property.)
What happens when a couple marries in a community property state and then moves to a
separate property state?
o General Rule is that we characterize the property by the state in which the couple
is domiciled when they acquire it. Everything you acquire while living in
California is treated under the rules of that state. When you move to Minnesota
and acquire new property, the rules of that state govern that newly acquired

OBrien v. OBrien (1985)

Couple divorces. The only asset of the marriage was the husbands license to practice
medicine. Issue for the court was whether the husbands license was martial property subject to
equitable distribution or if it is separate property.
Court presents a question: does the absence of one of the sticks in the bundle (in this case,
lack of alienability of a medical degree) preclude a finding that the object is in fact property?
Court answers in the negative: even though you cant transfer a medical degree, you can
still consider it as property by quantifying its value and making an award based on that
calculation. (this is NOT the view of all states).
*NOTE: that even though the New York court did consider the graduate degree martial
property (it was defined as such by statute), this is a minority approach and most jurisdictions
dont consider graduate degrees martial property subject to distribution.
In Re Marriage of King (1985)
Husband and wife divorce. Wife gets the house, one of the few assets they have. Husband
wants the house sold and the proceeds divided between he and his wife, but the court, taking into
consideration the wellbeing of the children and the unlikelihood of the husband to be able to pay
routine child support (he was a professional gambler) gives the wife the home.

Unmarried Couples
Watts v. Watts (1987)
Watts wasnt married to her mate and when they break up he tries to take all the property
and leave. She pronounces several theories upon which she is entitled to relief, including the idea
that they had a contract to share the property accumulated during their relationship.


Court affirmed declaring that plaintiff had voiced several claims upon which relief could
be granted.
Constructive Trust- an equitable device (a remedy) created by law to prevent unjust

Part 8: Regulatory Takings Law

Prohibits government from taking private property unless:

o 1) The taking is for Public Use, and

2) Pays Just Compensation

What is a Taking?
o Example: you live near 405, and govt wants to expand freeway, so they ask you
to sell your house to them. You dont want to, so govt files action in federal court
under Eminent Domain, so that govt can take your property from you and pay
you a fair market price for the property.
In an Eminent Domain scenario, theres very little fighting over the
TAKING itself. The fight in these cases regards whether the taking is for
1) public use and whether there is 2) just compensation
o Another example (non-Eminent Domain): Regulatory Taking you buy
property in Florida wetlands, zoned for commercial use. Subsequent to your
purchase, state govt decides to rezone the area for a preservation district, and
theyre going to preclude commercial development. Now you cant develop the
property the way you had originally intended.
The governments imposition of regulation limiting your use of the land is
considered a taking if it goes too far
o If the govt passes a regulation that limits your use, is it a taking?
Police Power of the states encompasses the original power of the state
governments to pass legislation regulating private conduct to protect the
public health, welfare and safety.
The injuries we suffer from the govt exercising of this power does
not constitute a taking.
o Nuisance exception- you are following all zoning rules etc but you are doing
something that is so bothersome to those around you that it is within the police
power of the state to prevent you from dong it even if it greatly reduces the value
of your property or even takes some of it from you


**Miller v. Schoene
Def (state etymologist) ordered P to cut down infected red cedar trees which could
spread disease to nearby apple orchards.
Court said that state had to choose between allowing the cedar trees to remain (and
risk the apples trees), or to cut them down and ensure the safety of the apples
POLICY:Its in the public interest to preserve the safety of the apple orchards, since
in Virginia apples make up a huge industry. Meanwhile, the cedar trees are not of
much value to the public.
o Because of the public interest, the court finds that the state was justified in
ordering the trees to be cut down.
This is an example of the state acting to prevent a nuisance/noxious use, and thus it
does NOT fall into the category of taking, but rather is an exercise of the states
police power.
**Penn Central v NYC

New York passed law that designates landmarks, which are regulated with regards to
future architectural development once they are officially recognized as landmarks.
Penn Central railway station was designated a landmark, and thus they werent able to
get approval for a 50-story office tower they wanted to erect on top of the station.
Penn Central sues state.
The court decides that the state has the right to regulate/limit future development of
the station.
Ad Hoc analysis review of the circumstances on a case-by-case basis; this is the
approach to deciding whether a taking has occurred when an owners use has been
limited by the state.
o The vast majority of takings are evaluated on an Ad Hoc basis.
Factors that the court considers in an Ad Hoc analysis:
o 1) The character of the government action
o 2) The protection of reasonable investment-backed expectations
Do we have a case where someone has done all the appropriate work
ahead of time, expecting to develop land reasonably, and then after
they buy it, the govt regulates development and bars their ability to
execute their plans?
o 3) The economic impact of the regulation on a particular owner
POLICY: We dont want to impose the cost of the public good on
We ask is this unfairly singling the plaintiff out?
1) Penn Stations first argument: the regulation is depriving their use of the air
rights that come with their property
o There can be a significant reduction in property value without it constituting a


o What serves as the denominator of the value of the property in this case? Did
they lose lots of value by losing their rights to leasing the airspace above the
o Court says that the plaintiff can still make lots of money by operating the
station; they look at the airspace and the station as one whole piece of
property, which inhibits the plaintiffs ability to prove a serious diminution in
So if youre the plaintiff, you want to try to break up the property into
separate parts in order to highlight the negative effects of a regulation.
2) Penn Stations second argument: this singles out specific property owners, which
is unfair. They are bearing too much of the cost of the public good.
o Court says that this doesnt prove shit. There are hundreds of designated
landmarks, not just themthis is a comprehensive scheme. This also serves
the public good. Since Penn Station can continue to use the property the way
its been used for a very long time, they arent being harmed too badly.
Court concludes that this is NOT a taking, and thus there is no need for just


Regulatory Taking-government makes a regulatory decision that changes the

scope of your property rights to such an extent that you contend the change constitutes
a taking.
o NOTE: government has to be allowed to regulate to a large extent, otherwise it
would be toothless.
o We understand regulations to be a taking if they go too far. However, there
is no bright line rule as to when you cross from general police power to a
Penn Central tells us to use an ad hoc factual analysis, balancing three factors:
o 1) Economic impact on this particular owner-cases all over the page as to what
diminution of market value constitutes a taking.
o 2) Protection of reasonable investment backed expectations-did party purchase
with the reasonable expectation that they would be able to develop the property
and make money off of it. Note that owners are not entitled under the law to make
as much money as possible using their property. Ie, if you live in a residential
neighborhood and your land would be most beneficial if turned into a brothel, you
cannot necessarily make it so.
o 3) Character of the government action-governments power to take property
ultimately benefits society, thus we like their ability to do so, but it is not fair to
burden individuals too much, so we are looking at this tension when deciding the
character of the governments action. Look at things like whether a certain group
is being particularly effected, or whether the government is getting too close to
peoples property.


Categorical Takings-There are some regulations where courts say you dont even
need to do the ad hoc balancing test-the court says there is a per se taking.

**Pruneyard Shopping Center v. Robins (1980)

Students sued when a private shopping center denied them the right to solicit support on
its grounds. Under the federal constitution, the first amendment did not protect the students
rights, but the California state constitution required that they be allowed to engage in such an
activity. Thus, the California state constitution afforded them greater rights.
Court held this did not deprive the property owner of rights (by forcing him to accept
protestors onto his property) thus there was no taking. In deciding whether there was a taking,
court invoked the ad hoc test, looking at the three factors mentioned above.
**Loretto v. Teleprompter Manhattan CATV Corp. (1982)
NY passes a law whereby all residential buildings must have a certain TV cable on it.
Loretto brings an action stating that this constitutes a taking because it is a permanent, physical
invasion of property and wins. Court contrasts with Pruneyard where there was only a
temporary physical invasion.
Court reasons that this is a categorical taking, therefore it need not apply to ad hoc test.
*A permanent physical occupation of property is a taking (this included several
elements: permanent, physical, dictated by government, and-perhaps-by a stranger). Permanent
physical takings go to the core of property rightsdoesnt matter how small the space taken is
(cable box was very small). Taking turns on whether the core of property rights has been

Eminent Domain Takings

If government literally takes your property for a public use, you have no right to stop
the taking so long as the government pays you just compensation.

**Kelo v. City of New London (2005)

City takes private property for the purpose of developing an area of the city. Problem is
that there was the question as to whether the taking was for a public useresidents who dont
want to sell argue that the planned development was not public, but was going to be owned and
operated by private parties. Government is not allowed to take private property and transfer it to
another private owner.
However, the court takes us from a definition of public use to public purpose. Public
ownership is not the keyit is whether there are public benefits at stake. This includes
economic development. Court determines that there are public benefits at stake, and the taking
is upheld as legal.


Takings: Just Compensation
**Tee Hit Ton v US

Indians claim that they are owed Just Compensation by the US government who has
taken timber from the land that theyve been living on for hundreds of years.
US bought the territory from Russia; the Indians had been living on it the whole time
Recognition court says that theres no indication that Congress granted the Indians
permanent rights to the land
o US govt could either recognize the land by Treaty or by Statute
o If there was a statute/act of Congress that dealt with relations between a
particular Indian group and Congress, then you would have Recognized
Title which would be compensable.
Court says that the statutes dont recognize title.
o So, whats the scope of a property right when its Original Indian Title?
Right of Occupancythis does not entail Just Compensation. This
means they can occupy the land and use it, but they cant ALIENATE
the land, as they dont have title to the land, so they dont have all the
sticks in the bundle (they dont outright own the land).
This type of property interest is always subject to being snatched away
by the government.
In order to justify its decision, the Court speaks a lot about the character of the
property, and these Indians.
o He says that theyre Nomadic, which doesnt qualify under the Ownership
views that the U.S. system recognizes.
Membership in this tribe is through a Matrilineal Structure therefore, ownership in
the common property passed only through the female line
o Court says this doesnt convince them that theres something Individual about
the property ownership in their tribe.
o Because their land ownership was tribal this was the antithesis of owning.
Ultimately Court decides that Indian occupancy can be extinguished without Just

**Sioux v US

Entered into fort Laramie treaty with Sioux giving them land near the black hills
and allowing hunting rights in a larger area and subsistence rations if necessary

Gold was found in the mountains and the government wanted to buy it from the
Sioux but they wouldnt sell b/c the government didnt offer enough money

The government stopped letting them hunt on the lands they were allowed to and
then put them back on the reservations with no horses or weapons so they
couldnt hunt and the government gave them money

Government basically forces them into new treaty saying they will give them the
black hills and some other land in order to get rations in order to survive

Court holds that it was a taking b/c congress never intended the subsistence payments to
compensate them and the rations were given under coercive circumstances, nothing to do with
the value of the land they took


April 13

Part 9: Intellectual & Cultural Property

-Publicity Rights
-Cultural Property (may or may not be intangible)
The American Intellectual Property system (promulgated largely by corporations) is shaping the
rest of the worlds
Why US desires other countries to follow suit:
-Facilitates commerce
-Can hold them accountable for piracy
Debate whether intellectual property is property at all (the current law seems to be protecting it
as property)
Labor/Dessert Theory (Locke) innate/natural or moral demand that someone who puts/mixes
their labor in their property should get right to the property
Utilitarianism (Bentham) Not trying to protect natural or moral right, protect property because
it makes good sense in our society; incentivizes people to create
CopyLeft movement (Lawrence Lessig) want to limit/narrow intellectual property rights due
to fear inhibiting free flow of ideas; shrinking peoples abilities to express themselves; scope of
monopoly is too large whether in terms of capaciousness or duration. New movement - focuses
on social good rather than just amount of protection; Combines intellectual property rights with
human rights (ex: greater protection for traditional knowledge but less for Mickey Mouse)

Legal Origins:
Constitution: Must balance duration with the monopoly (tension - want to incentivize creation
but not stifle others from creation/expression)
Duration allowance (increasing order): Patent Law> Copyright> Trademark
Copyright and Patent Law: Governed almost entirely by federal statutory law
(very little common law)
Trademark and Publicity Rights: Governed almost entirely by State
Common Law with some Federal Law now (Lanham Act): tends to be more local than
national issue

Copyright grants exclusive rights in literary and artistic works

-Includes: books, poetry, song, dance, dramatic works, computer programs, movies,
sculpture, and paintings.
Patent grants exclusive rights in inventions (functionality)
Broad protection but very limited duration
-Includes: Processes, machines, and compositions of matter


Trademark grants exclusive rights in symbols that indicate the source of goods or
services (meaning becomes attached so protect against consumer confusion)
-Duration is infinite as long as used in commerce and have not shown intent to abandon
-Includes: Name, symbol, type of packaging that identifies the producer of a good or
-Grew out of state common law of unfair competition and misappropriation
-Federal Trademark Act: Lanham Act owners of famous marks are protected against
dilution of the distinctive quality of the mark by having right to obtain injunctive relief
against competing uses even in the absence of consumer confusion
A) Tarnishment - another company sells inferior quality products
-Example: I start selling a nasty beverage called Coca-Cola and, thus I
am undermining the goodwill of customers for the original product.
B) Blurring another company sells something similar that causes consumer
confusion as mark loses association with particular company.
-Example: I start selling goldfish crackers, which takes away from the
uniqueness of Pepperidge Farms goldfish.
-Courts split on whether need to show actual economic harm
-Trademarks created by state law may be registered with the federal Patent and
Trademark Office (places the whole world on constructive notice)
-After registry must use with a business must commence within one year
- Failure to use a mark for a long time may constitute abandonment of it
-Only garner protection if the mark is used in commerce to sell goods or services/in
connection with a business
Functionality Doctrine Forbids use of a products feature as a trademark where doing so will
put a competitor at a significant disadvantage because the feature is essential to the use or
purpose of the article or affects the cost or quality of the article (moves from trademark to
**Qualitex Co. v. Jacobson Products Co.


Qualitex makes some product for Dry Cleaning, and they use a special hue of Green
on their product.
Jacobson used the same color on their competing product.
Q wants to get a trademark on the color

Anything that can be used to carry meaning can be potentially trademarked.
Most important aspect of determining whether you can trademark something or not:
o Requirement that a person use or intend to use the mark to identify and
distinguish his or her goods, including a unique product, from those
manufactured or sold by others and to indicate the source of the goods, even if
that source is unknown.
NOTE: Copyright and Patent are entirely covered by Federal Law; this is NOT the
case with Trademark. Trademark goes from the bottom up, as per common law.
o Therefore, even though we have the Lanham Act, the common law continues
to have an influence on what happens with Trademark. Lots of State and
Common Law dictating Trademark, with small amount of Federal Law, and
the inverse is true for Copyright and Patent.
Why cant you trademark Functionality?
o Because you would be creating a serious monopoly
o Functionality Doctrine prevents trademark law from inhibiting legitimate
competition by allowing a producer to control a useful product feature
So, if you wanted legal protection over a product feature that is
functional, you would likely turn to Patent Law, which gives you a
broad interest, but its more limited in temporal terms.
Trademarks are infinite. Narrower scope of legal rights than with a patent, but the
rights that you do get last forever.


Indian Mascots

Controversial Topic
o On one side, you have people that feel deeply committed to certain teams, and
they connect their fanhood with their personal identities; thus, proposing team
name changes is a big deal to them.
o Even within Indian communities, there is controversy regarding how they feel
about Indian Mascots.

Were going to talk about the Lanham Act; then also talk about NCAA and High school
rules/issues; well compare the implications of this issue in the professional versus academic
Difference between a racial mascot and a tribal mascot
o Indians is a racial mascot, where as Navajos would be a tribal mascot.
Context: often, the defense to this issue regards
o Who is using the mascot
o How theyre using the mascot
o Context can change dramatically from one use to another

Pro Football v. Harjo

Native Americans file petition against NFLs use of the trademark Redskins
Both parties motion for Summary Judgment

Court says that Lanham Act allows a person to file a petition at any time; the
issue here is what that phrase actually means.
Trademark Registration gives you Federal Protection; this can be challenged. Most
challenges made within 30 day period, then theres a 5 year period where you can
continue to bring challenges. However, if the trademark is alleged to be
scandalous/disparaging, then challenges can be brought at any time.
o So if someone comes after the 5 year period to challenge the trademark, there
are still Equitable Defenses available (Estoppel, Laches, Acquiescence)
o Disparaging youre focusing on the PARTICULAR GROUP at issue.
Regarding Laches court of appeals says that Plaintiffs waited too long; however,
one of the plaintiffs was 1 years old at the time of the trademark registration
o Trademark owner thinks that theres too much unpredictability if you can
allow anyone at anytime to challenge a trademark
o POLICY: The theory behind this is that trademark registration would be
disincentivized if people could not rely on their ability to reap rewards from
their investment in the trademark.

NCAA implemented a rule that withheld financial benefits from schools that used Indian
Mascots without consent from the Indian Tribe whose name they were using.
These rules applied to the post-season tournaments.


Copyright Law

Governed by federal statute

o Grants owners of original works of authorship that are fixed in a tangible medium
of expression types of rights for publication etc.
Copyright needs to strike a balance between protecting people to encourage innovation
and making information available to the public to help create innovations.
Protection last for life of author plus 70 years after his death, then becomes part of
public domain.

**Feist Publications v. Rural Telephone Service (1991)

Feist created white pages phone books. Wanted to get names and data from various phone
companies. Rural refused to give its data to Feist. Feist went and gathered the data and copied
that which they could not get, taking it directly from Rurals published product. Rural sues for
copyright infringement and wins, and the case goes to the Supreme Court, which holds that the
data was just facts, thus it is not copyright protected.
Feist did nothing wrong taking the data from Rurals publications, so long as it did not
copy the manner in which Rural organized/presented the data (the only original aspect of the
publication). Facts themselves cannot be copyrighted though, so Feist did nothing wrong.
POLICY: End result is utilitarian: whats good for society balance so that you have
enough protection to incentivize creation but not enough to stifle production.


Very little common law protection left in copyright casesFederal law has mostly
preempted the field.
We award originality we dont reward effort (in copyright). However, note that we do
care about labor in the general discussion of property, just in terms of copyright it is not
the defining factor.
Elements for copyright: original, authorship, fixed in a tangible medium of expression.
Statutory copyright is about fixing the owners interest in the copyright, not the thing.
Court says that a copyright is really about ownership in the copyright, not in the thing;
author never owns the work itself, he owns a copyright that expires after a certain
period of time and must comply with the Federal copyright statute.
Fair Use defense-there are some exceptions that excuse copyright infringement.
Factors to be considered as to a fair use defense are:
o The purpose and character of the use, including whether such use is of a
commercial nature or is for non-profit educational purposes
o The nature of the copyrighted work
o The amount and substantiality of the portion used in relation to the copyrighted
work as a whole


o The effect of the use upon the potential market for or value of the copyrighted
Suntrust Bank v. Houghton Mifflin Co. (2001)
Parody of Gone With the Wind is written. Decedent authors trustee sues for injunctive
relief to prevent the parody from being published. Note the idea/expression dichotomy-ideas
not copyrightable. Only the expression of an idea is.
Court determines that an injunction is inappropriate. Have to find copying, of something
that is copyrighted, and that there is no defense to the copying. Court finds that there is copying
and there is a copyright, however the defendant has a valid fair use defense.



Today were doing Publicity Rights (pg. 1129-1141)


Patent is the most scientifically based area of the 3 areas in Intangible property.
Patent is limited in its duration, because we want to encourage Innovation in
Patentable Items.
o Example: drugs Pharmaceutical companies can have a patent for 20 years,
and then any other company can use the same formula.
However, Patent gives you SIGNIFICANT legal rights
Theres a debate around the Social Justice Issues surrounding Patent Law
Issues regarding the Making of Drugs making them at NO or LOW cost for people
who cant afford them but need them (i.e. AFRICA!). Theres issues regarding the
extent to which drug companies should be compelled to provide drugs to needy
Issues regarding The role of Research and Development in creating drugs and some
relationship with the developing world (?)
o Example: New weight loss drug thats derivative of a plant in South Africa
that people chew and suppress their appetites.
o Drug companies take indigenous peoples ideas and create a drug that they
profit from. ISSUE: the extent to which that forces native peoples off their
Capitalistic inventions that threaten human well being.
o i.e. Monsanto sells seeds all over the world; they created seeds that would
only last one lifetimeTerminator Seeds, so that they could keep selling
their mother fucking product to dependent farmers. DRUG DEALER
Mapping the Human Genome lots of projects going on around the world to collect
DNA and map the genetics of Human Beings. Issues that arise have to do with the
study of homogenous peoples.
o i.e. the tribe that lived at the bottom of the grand canyon, and ASU researchers
started doing research for diabetes but were really trying to map their
genetics and get a patent on the DNA

Martin Luther King, Jr. Center for Social Change v. American Heritage Products
company wanted to make some statutes of MLK, and they asked the MLK center for
permission, and they said they would give them a donation. Center didnt want to
give permission. Company decided to make the statues anyways, and donated 3% of
profits to the center.


Center sued company, and got a preliminary injunction.

Right of publicity distinct from Right of Privacy?
If Yes, then does Right of Privacy survive the death of its owner? Is the Right
inheritable and devisable?
If also Yes, then must owner have commercially exploited the right before it can
survive its death?
If also Yes, then what is the guideline to be followed in defining commercial
exploitation and what are the evidentiary prerequisites to a showing of commercial
Yes, it does stand alone.
Yes, it does survive death. We want to incentivize people to exploit their own image
and often the value of the image increases after death.
Is commercial exploitation of ones image during lifetime necessary?
o NO. For some people, it would undermine their objectives to commercially
exploit their images during their lifetime (i.e. MLK). Court says we shouldnt
punish someone like MLK just because he didnt exploit his image during his