Property: Acquisition & Possession
I. Competing Claims to Property A. Introduction to property 1. 4 questions a. What is property? i. Bundle of rights [may be disaggregated] › Possession/Occupancy › Use › Transfer/alienability › Exclusion ii. Conflict b/w owners, users, non-owners › relationships, rights, cultural perceptions › balance between individual rights/autonomy and limitations for common good b. How do you get it? i. Buy, create, discover, borrow, lease, license, steal, receive, inherit, possess c. What can you do with it? i. Sell, buy, use, divide, give, rent, lease, develop, keep, extract d. What does it mean to people, law and for justice? i. rights of exclusion, unrestrained use ii. distribution of resources to divide rights and duties among people › a relationship between people w/ respect to things, not b/w person and thing 2. General Theories a. Rights vs. Entitlements b. Ownership and social relations c. Exclusion v. Access d. Wealth Maximization vs. Human Flourishing e. Efficiency and social Justice f. Law vs Culture B. Conquest 1. Property Rights From Competing Sovereigns a. 𝔓 had purchased land from Indians, 𝔇 from US. Title from Indians invalid, title descends from sovereign. US, as sovereign conqueror, has exclusive rt to obtain title from Indians. Indians have no title, only right of occupancy. Johnson v. M’Intosh i. derived from euro history of treatment of Indians ii. natural law, discovery doctrine, law of nations basis C. Distribution by Sovereign 1. Homestead Acts a. Lands taken from Indians was public domain, distributed by US 2. Squatters a. land often possessed by squatters, eventually obtain title free, cheap 3. Freed Slaves a. promised land for labor never materialized, often left in debt as title went to fmr owners D. Gifts & Inheritance 1. Gift is property from one to another w/o pmt. a. inter vivos: during life; testamentary: by will b. requires: Intent, delivery, acceptance i. e.g. engagement rings may be conditional on actual marriage E. Possession 1. …of Baseballs and Wild Animals a. Land title is derived from sovereign, property ―9/10 Possession‖… when? b. 𝔇 Chasing fox, 𝔇 comes in kills, takes. 𝔓 had no property rights as he hand no corporal possession. Hist. says wounding + (maybe) seizure = poss, Pierson v. Post i. Locke labor theory: application of human labor to natural commons [res nullius] creates property

homer. 𝔓 caught, dispossessed before secure. Ball still abandoned, complete control required, intervening illegal act gave pre-possessory interest, 2d poss not illegal actor, thus share possession. Popov v. Hayashi i. equitable remedy for equal competing claims to abandoned prop 2. Finders a. Gma‘s. bags of confed. dox; SC gov. contested. Possession is rebuttable presumption of title. No proof of illegal act, Gov. papers gen‘ly pvt. prop. thus title 𝔓. Willcox v. Stroup i. protecting O expectation int. is wealth maximizing, efficient b. Amateur Acrheog. digs up indian artifacts. Not ‗finder‘ as artifacts not abandoned, thus TO still owns. relative rts of finders. Charrier v. Bell i. F > 3d pty unless wrongdoing ii. TO > F if not abandoned iii. wrinkle: Premises O (possibly) > F, unless trespass › split, some use mislaid:lost distinction [PO:F] › key issue: Intent 3. JOHN LOCKE: TWO TREATISES OF GOV‘T F. What can be Owned? 1. Property in Genetic Information a. Patents i. Gives inventor 20yr right over invention ii. Requires: Process; Novel; Non-Obvious; Useful b. Hairy cell leukemia protein-speen. Removed from 𝔓 body, cell line used to create drug, dox get $3B patent. 𝔓 sues conversion. denied, no right, relinquished/discarded. Moore v. Regents i. Public policy: development of drugs > potential moral hazard of body part ‗theft‘ 2. RADIN: PROPERTY AND PERSONHOOD a. Labor theory: property rights defined by human labor/‖value add‖ b. Utilitarianism: Entitlement to wealth maximize, promote efficient results
c. Barry‘s

Rights of Exclusion & Access
I. Trespass A. What can one do with property? Most property doctrine derived from Trespass. 1. Elements a. Unprivileged intentional intrusion upon property of another. i. Privilege may be consent [objective; no fraud], necessity (to prevent harm), Public Policy ii. Intent is voluntary iii. Intrusion is of presence on or touching the property B. Remedies 1. 𝔓 has land, man moves mobile home over corner to avoid windy road, no consent. 𝔓 wins suit + punitive damages. Right of owners to exclude [trespass] is absolute, central. Pun. damages justified. Jacques v. Steenberg a. Doctrine: [laws] 𝔇 violated laws of trespass b. Policy: [social relations] must deter egregious violation of individual rights, self-help c. Theory: right to exclude is sina qua non of property i. contra: Rt. to exlude not absolute, [limited by obligations. maximize wealth as social obligation] C. Public Policy Limitations on Exclusion 1. Social worker seeks to dist. info to migrant worker on farm. Residence is encircled by farm, trespass. Right to exclude not absolute. no use of rt. to exclude to impinge on rts of others. State v. Shack a. Doctrine: violates trespass b. Policies: No encouraging violation of [individual] rights. migrant workers disadvantaged c. Theories: Right of exclusion vs property rights as service to human values D. MERRILL AND ALEXANDER: EXCLUSION 1. Two theories a. Ownership [merrill]: exclusion is sina qua non of prop, most important ‗stick;‘ boundaries define rights, lead to efficient alienation/development → wealth maximizing b. Social Relations [alex.]: Rights lead to duties (to society). Property rights are inherently limited by the drive to promote human flourishing, identifies obligation to promote social good E. Right to Reasonable Public Access 1. The right to exclude is limited proportional to the continuum of the property‘s public openness.

a. 𝔇

was a card-counter and banned from casino. Rt to exlude is limited by public access to prop.. If ‗of open character‘ (pl. of amusement) may exclude for safety/nuisance of guests, not arbitrarily. Uston v. Resorts Int’l i. Public has ―reasonable right of access‖ to all property open to public [uston, minority rule!!] ii. Historical doctrine limited to inns/common carriers for public policy, otherwise arbit. excl. ok [maj. rule] › may not violate anti-discrimination §§

II. Public Accommodations Statutes A. Anti-discrimination Principle 1. Federal Law a. Civil Rts. Act of 1964, Tit. II i. discrim in ―public accommodation‖ on basis of race, color, religion, nat‘l origin ii. Pub Accom. is inn, hotel lodge > 5 rooms, food service, amusement. not pvt. clubs. iii. No damages b. Civil Rts. Act of 1866 i. Equal rts. under law, capacity to К ii. only race discrimination iii. common carrier restrictions on discrimination iv. damages available 2. State Law a. States may add to anti-discrimination classes, e.g. sexual orientation, gender b. No discrim for race, creed, color, origin, ancestry, sex, orientation, marital status. N.J. Law Against Discrim.

Relations Among Neighbors
I. Adverse Possession A. Defined 1. when party possess another‘s property such that the title transfers to the adverse possessor a. Actual Possession i. Objectively occupied [majority] › state of mind/subjective [minority] ~ Claim of right: actual occupation as owner would, disallowed if boundary actually known ~ Intentional: must intend to dispossess [disfavored] ~ Good Faith: must be w/o knowledge of boundary b. Open and Notorious c. Exclusive d. Continuous e. Adverse and Hostile i. Permission is complete defense f. Under claim of right/color of title for § period i. may be reduced by ‗color of title‘ [mistakes in title] 2. Conduct + Intent → possessory interest / title 3. Generally arises when landowner notices use of land, ejects a. or defendant cclaims to ‗quiet title‘ in own name [or vice versa] 4. May not be used against The Man 5. Non-possessory interests may remain, e.g. leins, mineral rts, covenants B. Hohfeldian Terminology 1. 8 Legal Rights [opposites ∷ correlates]
a. Rights : No Rights ∷ Rights : Duty i. claim, enforceable by state, that individual act in specific way ii. if one has a right to exclude, another has duty to remain off b. Privilege : duty ∷ Privilege : No Right i. permission to act w/o liability and risk of prosecution ii. restaurant owner has privilege to enter, patrons no right

to neighbor

to exclude; owner has duties under §

limiting rts.

iii. he

who drops his wallet has the privilege to pick it back up, passer by no right; finder has duty to return… legal entitlements

c. Power : disability ∷ Power : Liability i. State enforced abilities to change

d. Immunity : liability ∷ Immunity : Disability i. Protection from alteration of entitlements

C. Title vs. Possession 1. Border Disputes a. neighbors dispute 2ft boundary by fence. 𝔓 survey indicated ownership, no act til road build. History of use for 57 yrs by 𝔇 predec. (tack), visibly, exclusively, actually, adversely, continuously. thus AP = 𝔇. Brown v. Gobble 2. Color of Title a. Land buyer seeks to settle title w/o valid sig. 𝔓 paid taxes, could survey prop., possessed. ‗color of title‘ as deed signature missing, but other elements indicate ownership. constructive validity under AP. Romero v. Garcia i. Step 6 ‗claim of right/color of title‘ 3. Squatters a. 𝔇 used property as vacation, built cabin, etc. Continuous (seasonal ok, given nature of prop); open (structures, S. part fails); exclusive (community use ok as custom); hostile; § period of 10 years. Nome 2000 v. Fagerstrom i. Only for pvt property; 𝔇 had staked off for land claim per Ak. § ii. Mineral rts. can be severed from surface estate in AP D. Justification Problem (Do not disturb vs. Land Piracy) 1. Justifications for AP a. Utilitarian / wealth maximizing b. prevents stale land claims c. justified expectations i. reliance, avoid windfall gains by true owner w/o just expectation, justice-enhancing d. Morality/social obligation 2. Boulder fight over strip of lot. massive litigations costs undermine efficiency theories. leads to changes in CO. law. favoritism etc. McLean v. Kirlin a. Co. law now: actual, adverse, hostile, claim of rt, excl., uninterrupted for 18 … must have good faith in Oship II. Servitudes A. Servitudes 1. Unlike AP, servitudes do not confer title, thus ―limited use, Non-possessory interest‖ a. Conduct + Intent → non-possessory interest (use right) b. Use right : Obligation to allow c. usually ―runs with land‖ (pass to subseq. burdened owners) 2. e.g. Easements, Covenants, Profits a. Easements i. Permanent irrevocable right to enter land ii. Statute of Frauds compels writing b. License i. informal, temporary, personal, usually revocable c. Covenant i. contractual promise regarding land use that binds OG parties and may run w/land [real cov/equit servitude] 3. Key issues: a. Formal requirements and equitable enforcement in absence b. if ambiguous servitude, how to resolve c. What are substantive reqs. of servitude validity i. e.g. public policy, no ‗run w/ land‘ d. How can servitudes be modded/terminated B. Licenses 1. Informal and revocable permission [no writing req] a. may be limited by CRAs, rights of К‘d party

2. not a servitude, not transferable C. Easements 1. Defined a. Affirmative i. AKA right of way ii. obligation to allow dominant estate to exercise rights on servient property iii. right to use may pass between owners b. Negative i. give grantee rt to res enforce promise not to do something on prop ii. historically limited to light, air, support, stream water 2. today: conservation, historic preservation, solar access

3. Creation by Express Agreement a. History i. Lords controlled serfs, partitioned land, fences go up, rt of ways req‘d b. Formal Reqs i. Writing/Statute of Frauds › Express easements must be in writing, agreement b/w 2 ptys ~ except: prescip. easements, estoppel, implication, necessity, constructive trusts › e.g. writing req‘d for RE interest transfers, >1yr. leases, terms not complete in lifetime, credit › may be bought and sold, part of deed ii. No Reservation in 3d Pty. › A cannot sell B property with easement benefitting C ~ abrogated/limited c. Validity: Substantive Limits i. Negative Easements › disfavored, generally. Primary CL forms: ~ Rt. to lateral support of a building ~ Rt. to prevent light/air blockage by neighbors ~ Rt. to prevent interference with stream ~ Today § dictate for solar, historical structures ii. Affirm. Easements to act on one’s own Land › historically invalid, easements are rts on others‘ land. › 3rd rest.: negative easements abolished › mirror restrictive covenants of today d. Running with the Land i. Requirements to Run [Burdens] › will easement survive after sale? ~ Intent + writing + notice (of easement to subsequent owners) — actual notice — inquiry notice: buyer investigates — Constructive: if OG deed has easement/record of easement in title search ~ implication, necessity, estoppel ―run‖ if so intended, or to protect dominant/benefactor ii. Requirements to Run [Benefits] › Intent + Writing ~ If intent to run with land: Appurtenant ~ If intent to not run: In Gross iii. Appurtenant v. In Gross › Easement Appurtenant ~ creates dominant : servient estates [benefited : burdened] — e.g. owner of A [d/ben] may cross B‘s [s/bur] property to reach Mailbox › Easement in Gross ~ creates only servient estate [a burdened parcel w/ individuals rt. to enforce] — e.g. A [rt to enf] may install and maintain wires across B‘s [s/bur] property › 𝔓 sells property to 𝔇 in exchange for easement to access cabin. easement address to 𝔓 by name for access to prop. strong presumption against in gross. if not expressly in gross,

appurtenant. restrictions on easement may be imposed ‗as contemplated by OG agreement‖ (no motorcycles). Green v. Lupo ~ parole evidence issue: not ―appurtenant/in gross‖ text → ambiguous → allow to clarify 4. Interpretation of Ambiguous Easements a. Appurtenant i. Tahoe back road to NE property owned by golf course. used by cox predecessor, 5 others. Rt. of use cannot interfere with rts. of others. The use of rd was textually appurtenant, but restricted to OG conceptions, thus no widening, probably no subdivision by 𝔓. Cox v. Glenbrook b. In Gross i. Back 5ft. of props. have EIG for electric/phone wire. Dominant licenses 𝔇 to string cable. In-gross owners can subdivide interest they have, thus apportionment for cable (w/in expect,) legit. Henley v. Cablevision › no extra burden, no viol. of ―rts. of owners to license cable‖ [broadly interpret] 5. Creation by Implication [Non-express] a. Estoppel/Irrev. Lic. i. Licensee may estop revocation of license if grantee had rt. to improve/ substantial reliance interest › ―exclusion estopped‖ ii. 𝔓 stopped 𝔇 from using rd across prop. after 𝔇 built house, verbal license to use rd. If licensee shows reasonable reliance, detriment on revocation → estoppel. House otherwise inaccessible. Holbrook v. Taylor › construction process uncontested, implicit license b. Constructive Trusts i. Property arrangement where O →Trustee w/conditions to manage prop for 3d pty. beneficiary › trustee has legal title, beneficiary equitable title › usually express by will/arrangement, but may be constructive ~ remedy if pty wrongfully denied benefit of title by mistake, fraud, etc. ii. Montana cabin ―owners‖ have no title, only license, prohib formal tenancy. New owner ejects per license, ag. will of seller, viol. benefits of licensees. Temp constr. trust on buyer to licensees. Rase v. Castle Mtn. › Policy/equity arguments > rt. to exclude (buyer knew of ‗tenants‘) › tenants never had need to est. more legit title (rare circumstance/peculiar pre-sale arrangement) c. Prescriptive/Quasi- Easements [implied by prior use] i. Requirements › Prior unity of ownership of tracts before severance › Prior use of one parcel for ben of another, in visible & continuous manner › Use necessary for enjoyment of dominant estate ii. Sale of prop by/in shopping center, delivery rd incl. No easement, trucks then excl. Alt. routes, new rds impracticable, thus rt. to exclude limited by quasi-easement of prior use. Granite Props. v. Manns › justified by implicit understanding of nature of prop, even without actual recorded easement › not necessity [narrow construction in doctrine] as it was technically possible, but impracticable d. Easements by Necessity i. Requirements › 2 parcels formerly owned by single pty before severance › Severed parcel ‗landlocked‘ ~ parcel gets easement by necessity over grantors land ~ may lie dormant over xfers, only req. former unity of title. ii. 𝔓 land surrounded by other parcels, easement denied by buyer, alt routes over stranger‘s land. if parcel severed w/o access to rds & surrounded by grantor land/strangers, necessity easement. Finn v. Williams › stranger‘s land immaterial, can‘t req. 3d ptys. › policy generally to improve alienability/efficient land use ~ cts may deny EN if intent clear to buy/sell landlocked parcel, or require compensation to O e. AP & Prescriptive Easements i. ―Adverse Possession Easement‖ [prior-use basis]

› requirements ~ Open & Notorious ~ Adverse ~ Continuous for 15 years ~ Acquiescence by burdened pty. › Does not confer title like AP, only a non-fee use interest. › No prescriptive negative easements › May add ‗good faith error‘ › Majority presumes no permission in ii. After survey, 𝔇 learns lot used by 𝔓 is his prop. 𝔓 used for loading trucks for 60 years. no permission, tacking, obvious, acquiescence by 𝔇. Community Feed v. Culvert 6. Termination of Easements a. Express Release (in writing) b. Self-terminating (limited time/purpose) c. Merger/unity of title d. Abandonment e. AP/Prescription f. Marketable title § [restr. easements not periodically recorded] D. Public Trusts 1. Intro a. Public trusts preserve public interests in gov‘t owned land i. e.g. Navigable waterways (fed) and tidepools (state) ii. Today used to preserve environment and nat‘l resources 2. Beach Access a. Town restricts beach access to residents, members. Ass‘n is ―quasi-public‖ by body, thus the rights to exclude must be reasonably restr. for public welfare, thus dry sand access. no rule on pvt. sand. Matthews v. Bay Head i. quasi-/public bodies may not restrict access to waterline, for e.g. fishing, walking E. Covenants & Equitable Servitudes 1. Background a. Negative Easements limited, affirmative easements could not apply to land b. Parties circumvented by К but privity issue for subsequent owners i. thus, privity of estate (К attachment to land) ii. ―real covenants‖ emerge b/w llord/tens › LL-T is ‗simultaneous privity‘ › Buyer/seller is ‗instantaneous privity‘ [did not exist historically] › Req: Writing, Intent (to bind future tens), Touch/Concern Land, Privity (simul. only) c. Today, covenants enforceable against parties, by damages or injunction if: i. Writing ii. Intent to run (primary issue) iii. Notice of burden iv. appropriate to impose on subsequent possessors of servient estate › public policy against covenant? › what is appropriate remedy? d. Rights/oblig. of OG parties i. OG benefactor cannot sue w/o explicit language, if sold ii. If OG intent was ―in gross‖ covenant does not run. e. Obligation of successors i. rights/burdens don‘t always run ii. Privity distinctions (horiz/vert) may limit damages for injured dominant successors f. Real Covenants/Equitable Servitues (distinction abolished in 3d rest.) i. Writing (ES/RC) › usually in lease/deed, may be constructive, or enforced in equity (rare cases). not sales lit. ii. Notice (ES/RC) › protects servient owners. › Actual/Inquiry(obvious/notorious)/Constructive(registry) iii. Intent to Run (ES/RC) › look for ‗heirs and assigns‘ or other clear language.

› general presumption to run/against ‗in gross‘ Land (ES/RC) › affects party in use/enjoyment of land/enhances mkt. value v. Privity (only RC, not req‘d for ES, thus proposed abolishment) › Horizontal: original К parties (generally mere formality, abolished in 3d rest.) ~ Relationship b/w OG parties, req exchanged of ben/burden (consideration) ~ Mutual: (simultaneous eg. LL-T, mortgagee-or, easements) — when grantor/ee have simultaneous interest in parcel — hence, a convenant in lease satisfies ~ Instantaneous (buyer/seller) — when grantor retains no interest in land sold to another. If burden on one for another parcel, both parcels may have covenant @ time of sale. ~ Horiz privity doesn‘t exist — b/w neighbors when not part of simultaneous property xfer — agreements b/w grantors/ees not made at time of conveyance › Vertical: Rel. b/w OG К pty and sucessors ~ strict: requires total alienation/sale, OG owner cannot retain interest — fail if, e.g., LL-T (owner has longer estate than possessor) — or, neighbor-beneficiary but not successor owner/possessor » may be allowed in equity if clear intent — or, owner title derived from restricting party, but w/o cov, before burdened parcel sold ~ relaxed: any possessor of burdened/benefitted parcel; LL-T ~ generally, if ‗non-hostile nexus with future possessor‘ g. Remedies i. RC: damages &/or injunction ii. ES: Injunction only 2. Creation a. Express i. W-D anchor, restr. other stores grocery space by covenant. Dol-gen moves in, violates space limit. enforceable by ES: written, run with land intended, touched land by value, notice is implied actual by inquiry or constructive by registration, industry knowledge. Winn-Dixie v. Dolgencorp ii. 𝔇 sold parcel, limiting use to not compete w/ new parcel. lease to CVS, violating non-compete w/ discount store on 𝔓‘s parcel. writing, clearly runs, actual/constr. notice, touch/concern (noncompetes affect value) privity (from mutual easements). Whitinsville Plaza v. Kotseas › noncompete provisions running limited if unreasonable restraint on trade ~ To evaluate NC, look for: Intent/purpose; OG consideration; Express stmt of restr.; Writing; Reasonable; PubInt; changed circumstances. › OG trust who sold to 𝔓 cannot sue, no remain interest › had kotseas sold to CVS, not liable as OG party; lessor retains duty b. Implied Reciprocal Negative Servitudes in Residential Subdivisions i. Intro › Privity issues in res. subdiv.. developer adds covenants to protect rem. props.. After last sale, cov. must be enforced against other owners. › early lots may not carry restr., some lots not restr., or defect… how to enforce? › IRNS enforces cov if: ~ property was intended beneficiary ~ part of a ―common scheme‖ (plat) — today, usually filed prior to first sale → constructive notice — Indicia of ―common scheme‖ » restr. in all/most deeds in area » recorded plat showing restrs. » Restrs. in last deed » observance of restrs. in by residnte » language ii. subdivision has covenants on sold lakefront props. restr. to single fam. dwell. developers reserved plots no cov. devised, sought to build condo, marina. implied covenant for all lakefront (voting
iv. Touch/Concern

props) as part of common scheme/similarly situated. landlocked lot for condo no cov. Evans v. Pollock iii. Couple own lot w/o cov, seek to build gas station. denied, OG owner had 53/91 lots w/cov, implied as common plan, constr. notice. Sanborn v. McLean iv. O builds snow tunnel w/o permit. Other lots have cov, not O, as first buyer. Thus, no notice, no cov, no implied. Mistake? Justice? Rare. Riley v. Bear Creek v. Avoided by filing general plan w/ decl. of cov. vi. some jurisdictions will not scrutinize like evans, but prefer sanborn and imply if find common scheme › Co. requires a declaration signed by grantor, not just plat record. not all sub-d. vii. developers cannot retain ―in gross‖ right to sue after all sold, unless legit interest in land F. Regulation of Covenants and HOAs 1. Common Interest Communities a. Defined i. Those communities with power to enforce covenants outside dominant estate model b. HOAs and Condos i. created by declaration prior to sale. may collect dues for commons, condos/homes still ‗in fee.‘ c. Co-ops i. prop owned by non-proft, lessees buy shares from coop. fragile, rent dependent, no sep. mortgages d. Community Land Trusts i. non-profit owns land. Trust holds title, purchase subsidized by gov. ground lease, sale to low incomes G. Modifying & Terminating Covenants 1. Changed Conditions a. 𝔇 had covenant on all biz not to sell alch. brown baggin ok. town expanded, lost religious village character. Liquor stores + brown baggin + comm. dev. means condition not same, no restr. biz/dev. El Di v. Bethany Beach i. No enforcement of covenant if beneficiary incapable of enjoyment (balance owner rts/pub pol) ii. Rare, but covs may be req‘d to be shown to be of actual benefit iii. Theory similar to abandonment/acquience 2. Relative Hardship a. if burden of ‗considerable magnitude‘ > benefit = enforcement may be denied 3. Equitable Defenses a. acquiescence, abandonment, unclean-hands (toleration of viol/by others/self) b. estoppel: dominant says to servient, no enforce c. Laches: ignore covenant long enough to encourage investment, not yet prescriptive 4. Statutes a. Co Rev Stat i. No unreas. restr. on solar devices. Removal of racial covs. Mod. S.Ct-voided covs. b. Mass Gen. Laws i. presumption of no benefit unenforceability, prefer ―damage-buy-out‖ to covenant. Pub.Pol. c. Cov. says alley must remain clear. Ritz expands, wants passage over alley. Mass presumes no benefit, burden of proof on benefactor. no M&S benefit, already Ritz1, tall bldgs.. lt/air loss, damages, no cov. Blakely v. Gorin 5. A Bit of Theory a. Law and Economics i. Descriptive › how does doctrine promote efficiency? ii. Normative › what should laws be to promote efficient results? iii. Cost-benefit analysis › Rights/burdens/entitlements have value. promote most efficient rule at lowest cost to society ~ pareto superiority: one gain, no losses; everyone wins ~ pareto optimality: the law of diminishing returns; no exchanges may be pareto optimal ~ wealth maximization: changing rule of law to make winners > losers; losses occur but < social gain iv. cost internalization: rule of law can encour. socially detrimental actors to choose less harmful course of act

› externalities: cost/ben of action that is actor not felt by actor › CI may reduce profits, thus cost society/business/useful-output but at a certain P, everyone benefits H. Racially Restrictive Covenants 1. 𝔓 bougt prop w/‖cov‖ restr. blacks. 𝔇 brought suit to enforce, denied. Judicial enforcement of racial covenant is state act in viol of amend. XIV. Shelley v. Kraemer a. non-discrimination principles b. efficient alienation c. not actual covenant but implied negative reciprocal servitude 2. Sen bacon gives park in trust, no blacks. No seg. as no ct. enforcement, thus the trust fails, reverts to bacon‘s heirs. cy pres rejected, reformation similar to purpose ―impossible.‖ Evans v. Abney 3. More Theory a. Legal Realism: Property is Bundle of Sticks (Evans) b. CLS: Laws reinforce social hierarchies and are thus indeterminate and representative of elitist norms c. Critical Race Theory: Hierarchy reflects racial oppression → reform. (Shelley) i. deconstructive: Systematic race-based critique of legal system ii. constructive: promote strategic racially progressive agenda

The Estate System
I. Estates & Future Interests A. Intro 1. William the conqueror and successors sought to control ownership and use rights of property as the feudal system developed 2. Key Terms a. Decedent = dead guy; (in)testate = dead with(out) will; Heirs = inherit real prop if no will, heirapparent if decedent not deceased; devisee = ―heir‖ by will; bequeath = give by will; bequest = object of giving; issue = lineal descendants; ancestors = forefathers; collaterals = blood rels not ‗issue‘; escheat land to state if no heirs b. Estate: an interest in property, defined by the length of time it lasts c. Present / Possessory Estate: a right to possess property, no ownership d. Future Interest: a future right of possession of property e. Words of Purchase: language of prop xfer that ids grantee i. O to A f. Words of Limitation: language of prop xfer that ids type of estate xferred i. his/her heirs 3. Key Themes a. Ownership v. Societal Values b. Dead Hand v. Contemporary Circumstances c. Consolidation v. Dispersion d. Feudalism v. Market Capitalism e. Antidiscrimination principles 4. Key Inquires a. Classify Interest b. What is the future interest c. Is future interest enforceable d. If yes, has ‗trigger event‘ occurred? B. Possessory Interests 1. Types a. Fee Simple i. No inherent end ii. O → A (and his or her heirs) › Default in ambiguity; presumed w/o specific language – promotes alienability, certainty iii. Absolute has no limitations b. Fee Tail i. Inherently ends with the end of lineage/last issue ii. Passes to A‘s heirs by devise (not inheritance) iii. O→A and heirs of his/her body c. Life Estate i. Inherently ends with life of transferee

right to sell, devise after death › economically worthless to xfer interest in life iii. O→A for life iv. O maintains Reversion or Remainder is vested in another Transferee d. Term of Years i. Ends by term spec‘d ii. O→A for X period iii. a.k.a. Lease 2. Conveyance, Limitation, Ending a. Owners may only xfer what they own, nothing more. i. Fee may convey TOY ii. LE may convey for own lifetime, but could end tomorrow (worthless, no equitable enforce) iii. FT may convey for A‘s lifetime, after which no interest b. If no limitation, A may convey FS c. If inherently limited estate ends, O/O‘s heirs/devisees retain interest C. Limitations 1. Added Limitations a. No Limit is ‗Absolute‘ b. O may add limit such that interest may de-fease [de-fee] c. Determinable Estates [FSD] i. If interest defeases w/occurrence of event automatically ii. O→A until younger brother is 25, | then back to O › comma defines A‘s ―next estate‖ (it is limited) › must also use signifying terms: until, so long as, while, during d. Condition Subsequent [FSSCS] i. If interest defeses w/occurrence of event and O must act › O has ―right of entry‖ › No action means A keeps interest › O→A, | but if A sells liquor on prop, back to O ~ comma indicates that limitation is after A thus O has ―next estate‖ ~ language signifying: unless, but if, however › The CS divests present possessory estate holder of present possessory interest 2. Non-FS Limitations D. Future Interests in Grantor / Estates Followed by Reversion 1. FSA a. Grantors have no interst in FSA 2. Reversion a. Grantor‘s right to possessory estate when inherently limited estate ends 3. Reverter a. Grantor‘s right to possessory estate following determinable estate 4. Right of Entry a. Grantor‘s right to assert possessory estate following occurrence of condition subsequent E. Future Interests in Grantee / Estates Followed by Remainders 1. Remainders a. When the Grantor conveys the future interest and possessory estate i. O→A for life, then to B… ii. Must be conveyed @ same time as primary conveyance b. Vested i. When the remainder/future possessory interest is certain to occur (i.e. in Ascertained Person) › O→A for life, then to B (when B is specific/identifiable individual) ii. No condition precedent c. Contingent i. When the remainder/future possessory interest is not certain to occur (no Ascertained person) › O→A for life, then to A‘s kids (A may die w/o kids) ii. Or, Subject to condition precedent › O→A for life, then to B if be has graduated College (B‘s graduation must precede) › O has reversion 2. Ascertained Person

ii. No

a. any ID-able/born person (…to A‘s GKids [A has 1}; …to A‘s first Child [has kid]) 3. Class Gifts a. gift to class of individuals (e.g. Grandkids) i. becomes ascertained & vested only if one individual of class ID-able 4. Conditions Precedent a. Condition must occur before FI holder can take possession i. e.g. … | , to B if B is 25 ii. condition must be more than end to prior estate b. Placement must be in B‘s estate i. e.g. O→A for life, then to B if be survives A [contingent, condition precedent] ii. contra O→A for life, then to B, if B does not survive A, then to C [vested] 5. Reversion & Alternatives a. Reversion may be in O if no 3d party following contingent remainder b. C may divest B of FI if CP not met, alternative reminder in C i. O→A for life, then to B if B has a degree, if not, then to C F. Executory Interests 1. Determinable with Exec. Interest a. Limitations on grantee‘s FI (inside A’s estate) i. e.g. O→A until B is married, then to B › A has limited possessory estate › B has an executory interest (in next estate) 2. Executory Limitations a. limitations on A‘s possessory interest outside A‘s estate (e.g. A has FSD) i. e.g. O→A; however if B marries, then to B › A has possessory estate subject to executory limitation › B has executory interest in FSA ii. 2 Future Interests in 2d Grantee › in 2d grantee, limit after ―;‖ thus ~ e.g. O→A; however if A uses land for Tavern, then to B a. A has FS subject to executory limitation b. B has executory interest in FSA iii. Beware ambiguities! › O→A for life, then to B, but if B ever drills for oil on property, then to C ~ what if B drills during A‘s life under lease, is A‘s interest ended? G. Divestment 1. Additional Future Interests a. e.g.: O→ | A for life, | then to B for life, | then to C i. A has possessory in-life estate; B has vested remainder in life estate; C has vested remainder FSA 2. Vested Remainder Subject to Divestment a. When a 3d party may ‗divest‘ a prior estate of their interest before it becomes possessory b. e.g. O→A for life, | then to B for life, | then to C, | but if B sells liquor on property, then to D i. A has possessory in life estate, B has a vested remainder in life estate, C has vested remainder (subject to divestment) in FSSCS, D has executory interest in FSA 3. Vested Remainder Subject to Open a. if class gift w/variable, but vested interest (e.g. … to Grandkids [one so far]) i. ―vested remainder subject to open‖ ii. If … dies w/o Grandkids, class is ―closed‖ iii. aka ―partial divestment‖ H. Shifting & Springing Executory Interests 1. Shifting a. Divestiture of grantee i. O→A, provided if A ever allows logging, then to B › A has FSSEL, B has a ―shifting executory interest‖ in FSA 2. Springing a. Divestiture of grantor i. O→A when she is 25 › O has possessory estate in FSSEL, A has ―springing executory interest‖ in FSA I. Rule Against Perpetuities 1. Basics

interest is good unless it must vest, if at all, no later than 21 years after the death of some life in being at the creation of the interest‖ b. Rule i. A future interest is void the moment it is created › in a grantee [remainder/exec. interest] › no RAP in FIs in grantor ii. unless it is certain to vest (become possessory)/fail › contingency [unascertained/subj. to condition precedent/subj. to open] › no RAP in vested remainders iii. within 21 years after the death of some life in being iv. at the creation of the interest c. Vested v Contingent Interests, Closed v Open i. No RAP if: grantor FI/vested remainders (except class gifts); contingent remainders must vest/fail in 21 yrs ii. 3 vulnerable contingent interests › Contingent remainders ~ O→A for life, then to B if B has married › vested remainders subject to open ~ O→A for life, then to A‘s grandchildren (A has one grandkid) › executory interests ~ O→A while A serves in the army, then to B d. Will Efficacy i. wills not valid until testators death e. Gestation Rule/Fertile Octogenarian i. children are alive from conception, if born alive ii. any living person is fertile 2. Purpose a. Promotes alienability by next estate by modicum of certainty b. limits dead hand control c. balance w/ O‘s intent and liberty 3. Meaning a. Calculation i. 21 years after the last life in being ii. O→A for life, then to A‘s kids › A‘s life cannot be determined (…) › is there any possibility the interest might not vest in the time period? › A‘s kids contingent → last possible birth is prior to A‘s death → 21 yrs after? kids (vest) or not (fail) (√) iii. O→A for life, then to A‘s kids over 25 › closure? A‘s life → Even if teenage kids, interest fails, could have kid under 21 b. Contingency Length i. must vest fail in 21 years, no uncertainty of invalid c. Validation i. A is above examples is the validating person, alive at conveyance. validation at death 4. Steps a. State the title b. Does the RAP potentially apply to this conveyance c. If yes, is RAP violated d. If yes, Remedy? 5. Danger Signs a. Condition not personal to someone/vested b. ID age over 21 c. grants to 2d gens (grandkids) d. conveyance to holder who must survive a generic, unnamed (unvested) party e. ID event that may (not) occur in 21 years f. holder won‘t be IDd until death of generic, unnamed party 6. Remedy for Invalid Interests a. strike the offensive interest, with bat 7. Quick and Dirty Examples

a. “No

a. O→A, but if liquor is ever sold on the premises, i. A has FSSEL, B has an EI ii. Rule Applies iii. Violation: Liquor could be sold on property iv. remedy?

then to B

> 21 years after A‘s death O→A b. O→A for life, then to B if she graduates from law school i. A has LE, B has CR, O has reversion ii. Rule Applies iii. No Violation c. O→A for life, then to A‘s grandchildren i. A has LE, A‘s GC have CR subject to open ii. Rule Applies iii. Violation: 21 years after A‘s death, no knowledge if GC iv. O→A for life II. Interpretation and Regulation A. Ambiguous Conveyances 1. Presumption Against Forfeiture/Grantors Intent a. If grantors intent unclear, policy is to go FSA for alienability, free use b. generally interpret against forfeiture. c. Cov > FI; FSSCS > FSD; FSD > LE d. FS vs Defeasible Fee i. land given ‗for purpose of hospital‘. Intent FSSCS/D, but not using standard limiting language. Interpret as FSA unless clear. Wood v. Freemont Cty. › generally, purpose stmts. not legally binding › may find exception for charitable purposes, especially if ltd restraint on alienation. Cathedral Incarnation ~ volatile doctrine. may also be FSA w/ restr. cov. not FSSCS. some cts. won‘t preserve. e. FS vs Life Estate i. gives daughter farm on anti-creditor terms. seeks to buy FI from her kids w/ remainder, can‘t. holdout disinherited. D‘s estate held to be LE, thus can‘t disinherit. LE as ambig but clr. intent. Edwards v. Bradley 2. Cy Pres and Trusts a. if charitable trust has gen intent to contrib. to charity, purpose frustrated → cy pres will alter purpose in line with changed conditions and OG intent, if possible. (e.g. gender discrim. clauses) B. Regulatory Rules 1. Waste a. Voluntary: deliberate acts of 𝔇 b. Permissive: failure to perform affirmative duty to maintain value c. Ameliorative: acts increasing value of prop, not always ok i. could be problem if substantial change in character d. Woman neglects farmhouse, daughter sues executrix for waste. LE holders have duty not to waste, cannot let property lose sub. value. LE neglected, lost value. No laches/estoppel as it was mother, law won‘t require suit against ill/poor mother. Moore v. Phillips i. laches is delay in filing, nullifying claim. must actually prejudice 𝔇. 2. Rule Against Creation of New Estates a. Law will only recognize FS/LE/TOY/FT(juris may abolish) b. will devises in fee-tail-male. suit for deposit, murky title. declared FSA, no ―FTM‖. Johnson v. Whiton i. FT is heavily disfavored (or abolished) + gen rule favoring FS + No new, no matter clarity 3. Rule Against Unreas. Restr. On Alienation a. FSA cannot be restricted w/o reason; generally disfavored b. Balance b/w interest/utility & harm i. reasonableness inquiry › weigh duration, # affected, reason, etc › e.g. lease w/ covenant against sublet ok 4. Restraints on Alienation a. Direct Restraints i. had covenant preventing sale of club w/o 100% appv‘l/dissolution. sought to move, 1 holdout. Tct ruled 100% req as unreasonable, VtSct rev‘d: verify if ‗charity‘ to est. nature of ‗interest.‘ Horse Pond v. Cormier

› relaxed reasonableness inquiry in charity, sustains purpose. 5. Rule Against Unres. Resrt. on Marriage a. Donative conveyance to prevent first marriage = Verboten b. Donative conveyance to prevent some marriage = Valid unless unreasonable c. Donative conveyance designed to prevent remarriage = Valid if by 1st spouse & reasonable in circumstances 6. Rule Against Perpetuities a. See above. 7. Rule Against Racial Restrictions a. generally unenforceable; see Shelley, supra, but cf. Evans, supra.

Concurrent Ownership
I. Concurrent Ownership & Family Property A. Varieties of Common Ownership 1. May be divided, shared of concurrent 2. e.g. Common/joint tenancy, tenancy by entirety, partnerships, community property, corporations B. Rights/Obligations of Co-owners 1. Tenancy-in-Common & Joint Tenancy a. Tenancy in Common (default/if ambiguity) i. no right of survivorship ii. O→A & B (as Tenants in Common) iii. each tenant has right to possess whole, unless covenant by all others iv. unequal share of ownership ok, intervivos xfer ok. v. tenants may devise/leave to heirs intestate › if A→C, B&C are TIC b. Joint Tenancy (only w/ use of key language) i. Right of survivorship. after death, interest is split between remaining tenants. ii. Right to possess entire parcel iii. equal ownership shares req‘d, intervivos xfer severs › severance: if JT tenant xfers interest, survivorship destroyed, converts to TIC. ~ A&B&C JT, B→D; A is not sole owner but A&C become TIC ~ Possible by SPAM: Sale, Partition And Mortgate ~ avoid conveyance-severance: O→A&B as LT w/ remainder in A if A>B, in B if B>A. iv. tenants may not devise/ leave to heirs intestate › may convey to self & another as JT v. Requirements › ―4 unities‖ ~ time ~ tenancy/title ~ interest ~ possession vi. Obligations & Rights of Co-owners › share expenses › maintenance & repair may be req‘d if reasonable, notice ~ does not include major improvements › If 1 pty occupies, no rent unless contrib > rental value › Tenant out of possession may not sue for rent, in possession may sue contribution/expenses vii. Trespass: desire to exclude by 1 > desire to include by other viii. no adverse possession 2. Tenancy by the Entirety a. Available to married couples, 60% abolished b. Requirements i. legally married ii. no partition but through divorce iii. non-xferable interest iv. creditors may not attack property for debts of one


C. Rent/Possession Conflict 1. Husband moves out after separation, 2 yrs later divorce. moved in with paramour, sues for rent under constructive ouster. denied affair was cause of divorce, no unilateral constructive ouster. cf abandonment. Olivas v. Olivas a. some juris. assume constructive ouster in divorce. if actual/constructive = rent D. Transfer Conflicts w/ 1 Co-owner 1. Tenancy in Common/Joint Tenancy a. Generally co-tens have duty to share maint/exp, rt to possess, xfer, share rent. b. if disagreement over possession/use: Accounting (financial det. of rts/duty) then Partition c. Family Conflicts i. Father/son TIC, lease to 𝔇 on cropshare. son wants cash. father/𝔇 arrange 10yr cropshare w/o son‘s consent. consent not req‘d, equal rts as occupants. Right to rent viol, partition as remedy. Carr v. Deking d. Death i. TIC leases interest in prop to 3d, dies, TIC2 seeks FSA. JT severed by interest sale (unity destroyed) but lease is not sufficient intent to destroy, thus, remainder to TIC2, lease invalid at death. Tenhet v. Boswell e. Divorce i. Father leases land to son, separates w/ wife. Wife ends up with son‘s leased prop, seeks to Kresha v. Kresha 2. Tenancy in the Entirety a. 𝔇 injures 𝔓 in accident, doesn‘t pay settlement, estate sought, owned TiE by 𝔇 and wife, deeded to kids before death of wife. TiE has 100% ownership by both spouses, no attack by creditors. deed to kids legit, no fraud. public policy against house seizure. Sawada v. Endo i. may be attacked in some states, with survivorship in spouse, then sale; or by consent ii. homestead laws may also restrict E. Marital Property 1. Basics a. historically only single women could own sell prop b. married women had to go thru husband as ‗single entity‘ c. married women had rt. of survivorship 2. Community vs Separate Property a. Separate i. During Marriage › spouses separately own and manage prop acq. before/during marriage › duty of support, and intermingle shared property › Co marital prop: anything acquired during marriage. exc. gift, inheritance, prop excl. by prenup ii. On Divorce › equitable distribution of spouses property to achieve fair result based on many need-based factors › includes increase in value of sep. owned property & debts › Co no-fault juris iii. At Death › dispose of property by will, subject to ‗forced share § threshold‘ › intestacy: forced sharing of prop depending on # of descendants, or just to spouse (§) b. Community i. During Marriage › prop before marriage, by gift, devise, inherit, still separate. › all other, eg salary, real estate, etc equally shared, limited by preunp › both must consent to alienation, mortgage; fiduciary duty to community ii. On Divorce › each gets separate prop + ½ community/equitable distribution (juris split) iii. At Death › Rt. to dispose of separate prop and ½ community › c. Prenups i. Generally enforceable unless › involuntary, unconscionable, insuff. disclosure, substantial injustice d. Homestead Laws

i. protection of primary residence for debts of decedent spouse for survivors life ii. can stay in home. limits in equity. may protect down payment from seizure in


Leaseholds/Real Estate
I. Leaseholds A. Leasehold Estate 1. Commercial/Residential a. Cts have adopted CL rules for residential terms, less for commercial due to bargaining power 2. Categories a. Term of Years i. standard lease, w/ reversion in owner or 3d pty. remainder ii. possessory right of occupancy unless lease cond. violated / end of term iii. subject to statute of frauds b. Periodic Tenancy i. Auto renewal of lease unless LL-T choose to end (e.g. month notice or as req‘d by §) c. Tenancy at will i. unspecified duration, may tech. term. w/o notice, but many juris req. by §, not always same as PT § period d. Tenancy at Sufferance i. aka holdover tenant; short duration (as LL accepts rent, or evicts) ii. If T continues to occupy after term, may stay if LL accepts rent. term is M→M or on old terms (minor) iii. LL may sue for possession, estoppel risked if rent accepted 3. Statute of Frauds a. Writing required for TOY b. oral К may be allowed for PT/TaW 4. Landlord-Tenant Relationship Regs a. Many CL/§ regs. Uniform LL-T acts in 26 states b. Procedural reqs for writing, termination, notice, eviction c. certain minimum facilities and mutual obligations i. T may not waste → must repair if not ‗normal wear and tear‘ ii. T may not remove ‗fixtures‘ iii. T must follow law, reasonable terms in lease B. Rent Conflicts 1. Landlord remedy: Summary Process a. LL has right to rec rent, no waste, reversion i. duty to provide possession, may be liable for damages if not ii. duty to provide habitable premises b. if T doesn‘t pay rent i. and T stays › sue for back rent and possession › through summary process (Co. 3 day notice req. → 5-10 days to hearing) › no self-help › T may counter-sue for violation of equal housing rts ii. and T goes › LL may accept surrender, look for new T ~ sue for back rent + damages (rent value, if Pm<Pk) + cost of find (no future liab T) › LL may refuse surrender & re-let on T‘s account, look for new T ~ sue for back rent + damages (rent Pk-Pnew) cost to find (T liab. if T2 doesn‘t pay) › Ignore, wait and Sue, don‘t look for new T ~ LL waits till end of term, sues. ~ restricted by duty to mitigate (search for new T) 2. Landlord Duty to Mitigate a. T surrenders lease after 2 weeks, first 6wks free. LL sues after 18 months for full amt. LL had duty to mitigate, and notify T of non-accept. LL should have sought new T, denied several, no waiting to sue. Sommer v. Kridel i. see also Riverview: T leaves after 1yr, LL had duty to mitigate before suit. modern city living compels change. ii. Some states require accepting ‗reasonable‘ subletter

3. Rent Control a. К-rent max is not ―unconstitutional taking‖ as < social policy of affordable housing C. Occupancy Conflicts 1. Transfers of Leasehold Interest a. Landlords Right to Transfer Reversion i. Leasehold/terms survive after transfer of reversion › unless mortgaged, possibly, or LE b. Tenants Right to Sublet/Assign i. Generally, T may convey what is owned › Restraints on alienation disfavored as policy › formalities must be balanced with reasonableness 222 › allowed if lease silent ii. Forms › Assignment: new tenant, T1 not liable. Bound by lease covenants, privity of estate. Rel b/w T2 & LL › Sublease: covenants don‘t run. Interest maintained by T1 in ROE/remainder. LL mayn‘t sue T2 next iii. Clauses restraining sublease/assign. may be upheld for creditworthiness of T is uncertain 2 iv. Airport biz seeks to assign to T , denied by LL. Lease req. consent, silent on cause. LL demands cause, hi rent, onerous terms. Comm. prop should be alienable. T 2 had better finances, no commercially reasonable cause for denial. Pub. Policy overturns CL arbitrary denial. К‘s good faith exec. Kendall v. Ernest Pestana › ―Commercially reasonable‖ factors ~ Finances, Legality of Use, Suitability of Premises v. Rent control T wants out, lease req. consent. LL denied sublet. no reasonableness in denial in residential leases. alienability not as critical, less malice by LL to exploit rent (esp in RC). Slavin v. Rent Control › Ct. says let § decide. Many states do. › Co. trending ‗reasonable‘ 2. End of Tenancy: Recovery v Right to Remain a. KK may not evict without viol., but no duty to renew, except: i. if non-renewal discriminatory → eviction ii. rent control/§8 and no reason iii. DC/NJ/NH require just cause in certain cases, e.g. LL repossess, non-res conversion, D. Tenant’s Right to Habitable Premises 1. Basics a. LL has duty to provide possession and habitable premises i. respectively limited by: › implied covenant of quiet enjoyment (may be CL or §) ~ T has possessory right, not to be disturbed ~ LL can‘t deprive T of prop during lease (generally) ~ ―dependent covenant‖ T‘s duty to pay conditioned on L no-breach › warranty of habitability ~ Formerly, no duty of L, today implied » no retaliatory evictions ~ Must be material defect » Factors: Seriousness of defect & impact on habit; time span; LL notice; T conduct, fixability » ―fit for human habitation,‖ includes heat, hot water, plumbing ~ may be influenced by local housing codes/ § /CL ~ non-waivable ~ Res. only ~ Remedies » MRRR: Move & sue; Repair & deduct; Reduce/withhold rent; Remain, pay, sue b. Eviction i. Actual › Physical exclusion → total/partial rent abatement (juris) → damages, injunction, termination ii. Constructive › SING: Substantial Interference w/ QE (chronic issue, e.g. rainwater) → Notice to fix → no? Go.

case i. T fails to pay rent → LL sues → T claims LL breached express/implied duties (CQE/WH) → if yes, abate 2. Quiet Enjoyment & Constructive Eviction a. NY loft T has partial-comm lease, musikstudio. cannot use 2/3 prem. for dust, water, shoddy construct by LL. Partial abatement for constr. eviction. non-rent pmt. aff. def. CE. no Go ok, only partial. Minjack v. Randolph b. T irritated by nightclub opened next door, same LL. club viol lerms of lease, LL no act. gen rule that LL must interfere for QE viol, but since resp. for enf. terms on viol. pty, liable under QE. Blackett v. Olanoff i. LL allowed comm. in res. dist. ii. 2 gen exceptions to LL act req. › Duty not to permit nuisance › Duty to control common areas 3. Warranty of Habitability a. Landlord Obligation to Provide Habitable Premises i. DC slum has 1500 housing code viols. Ts refuse to pay rent. Est IWH by finding breach of К violation. lack of IWH descended from agrarian value of land, not structures, the contemp. object. abrogates T duty to repair. Public policy. Precedent fails in changed conditions. К theory influence. Javins v. First Nat’l ii. 𝔓 lives in a derelict shanty. 𝔇 wont fix, 𝔓 wont pay, M→M notice, evicted. Co. rejects IWH as judicial activism, leaves to legis. Blackwell v. Del Boscoe › 31 years later, co. adopts IWH legis. II. Real Estate Transactions A. Structure 1. Attorney’s Role a. Brokers fill out form-Кs. Attys in 40%. Attys may be implicated in RE txns with terrorists, money laundering 2. Brokers a. Hired to sell properties i. may be exclusive (commis in sale); agency (commis if broker sale); open (commis only if 1st to find buyer) ii. Paid post-closing, or if seller back-out iii. cannot create legal dox iv. have fiduciary duty to buyer/seller representing, other party if adverse material facts (e.g. title, phys. prob) › buyers brokers gen have no duty to sellers › txn brokers rep. neither side. must use reas. skill & care, disclose mat. facts, acct. for $, assist in comply. › Co. no duty to disclose ‗psych. impact‘ e.g. HIV resident, homicide/suicide 3. Sales Contract (PSA) a. Writing of Offer i. material terms: Description of Prop, Intent to sell, price, closing date ii. promises: to convey good title, inspection, accuracy, security of financing 4. Executory Period a. b/w PSA and closing, secure finance, title, inspection 5. Closing a. deliver deed, sign piles of forms, cash. 6. Post-Closing a. deed supersedes sales-К B. Sales Contract 1. Formalities: SOF, Part-Performance, Estoppel a. Will Cts enforece oral sales-К? i. part-perf. › pmt of purchase price, take poss. of prop, make improvements ii. Estoppel › reas. reliance, promise detriment, justice requires enforce

c. Typical

man ‗promises‘ house for end life care. couple sell biz, move, man dies, no house in will, no writing. SOF blocks pt perf. Acts/promise don‘t unequiv. ‗relate to land,‘ no improve, tax, possession. Burns v. McCormick c. 𝔇 orally offers to sell land, 𝔓 pays deposit, list house, take deposit, told no land buy. estoppel for the actions were directly rel. to land, detriment if no sale. Hickey v. Green d. debtor-bro wants FS to secure loan, xfer made, no loan, sibs want prop back, no go. No writing, but terms discernable by actions, parol evidence, part perf. by conveyance, intent clear. Gardner v. Gardner 2. Breach of Contract/PSA a. General Terms i. Provide Title (s) ii. No fraud in mat. facts of prop (s) › e.g. misrep., fraud suppress, fraud non-discl. iii. Reas. efforts to get financing (b) iv. Warranty of habit (new home builder) v. Remedies: › Spec. Perf.; Damages; Rescission; Lein b. Misrepresentation & Fraudulent Nondisclosure i. buyer sees stains in home, told just repairs, all good. PSA & deposit paid. reinspect, gushing water, massive repair cost est.. Rescission as fraud. misrep.. duty to disclose latent mat. defects.. Johnson v. Davis › factors for Fraud. Misrep.: False stmt of mat. fact; known to be false; reas relied by buyer; causing harm › generally no duty to disclose obvious defects. some states pure ‗caveat‘ exc. ‗latent defects.‘ may be Кd out. General rule of non-obvious things affecting value. c. Seller Failure to Provide Marketable Title i. w/o mkt. title, buyer may be excused ii. primary defects: › encumbrances (poss. interests, leaseholds, covenants, liens) › chain of title (forgery, misdescribed title) › not based on claim of AP › No violating a zoning ordinance d. Buyers Failure to Obtain Financing in Good Faith i. implied in PSA 3. Risk of Loss in Executory Period: Equitable Conversion a. at CL the buyer bore burden after PSA, including purchase of smoldering remains b. today, seller bears burden, or by К. Insurance. C. Deeds & Title Protection 1. Formalities a. Terms i. ID Parties ii. Describe prop iii. Stmt. of intent to convey iv. grantor signature b. Delivery i. at closing, actual delivery. must be beyond possession ii. must have present intent to trx title iii. constructive delivery is intent-based iv. acknowledged deed (notarized) is evidence of delivery (Co.) 2. Title Covenants a. Warranties of Title i. Quitclaim (worst for buyer liability) : no wtty. that seller even has good title, convey only what seller has ii. Special Wtty. : wtty. of no defects since seller acq. prop. iii. Gen. Wtty.: Seller promises › Present: seisin (owns the purported interest to covey), rt. to convey, no encumbrances, › Future: quiet enjoyment, will defend buyer if sued for title, will cure defects b. Remedies i. cov. of wtty. is most common ii. if dispute b/w buyer-seller: resolve by deed

b. Old

dispute b/w buyer1-buyer2: resolve by recording § 3. Recording Acts a. Recording System i. formerly, first buyer had unconditional rt. to prop ii. today, depends on § and records at cty. offices b. Title Search i. tract search: uses property parameters ii. grantor-grantee: uses names of parties involved c. Types of Recording Acts i. Race: He who records first wins (uncommon) 2 1 ii. Notice: only if B is BFP (paid money + no notice of B ‘s purchase) B wins › 3 types of notice (juris may allow some/all. co: all): ~ Actual: If B2 was told ~ Inquiry: If B2 could have known by inspection, e.g. B1 occupies ~ Constructive: if B1 recorded 2 2 iii. Race-notice: If B is a BFP and B records first, B wins d. Chain of Title i. Man occupies prop in Ak. BLM recommends grant, conveys quitclaim to 𝔇 who records. BLM issues patent, man sells to 𝔓 who records. b/c no patent w/𝔇‘s deed no notice. N state, 𝔓 wins. Sabo v. Horvath › wild deed: deed entered on records w/grantor outside chain of title, deed null for incapable of notice e. Fraud & Forgery i. old lady won‘t convey all min. rts. only 2/15. broker writes in 15, error noted, offer to buy-out denied, re-xfer never recorded. old lady tries to sell, title fails. remand to find if forgery (void), or only if fraud (voidable) and SOL. McCoy v. Love › Forged →Void = no possible xfer. (no good title) › Fraud → Voidable → owner must assert true rights. If BFP buys, too late to ‗void‘ title D. Real Estate Finance 1. Mortgages a. Basics i. Promissory note: promise from borrower to repay lender principal + interest ii. Mortgage (add‘l promises) › Pay note › maintain homeowners insurance › pay property taxes › pledge the property as collateral ~ 2 theories » title: lender holds title, HO has ‗equity of redemption‘, foreclosure = bank notice of sale » lein: borrower holds title, lender has lein, foreclosure requires judicial process iii. foreclosures: borrower may bid, public notice, no deficiency judgments ag. borrow in some states, judicially supervised sale in some states, § right of redemption before foreclosure, mandatory negs. b. Subprime Mortgages i. Bank serviced SPMs. Mass req‘d AG notice of intent to foreclose on high-cost morgs, now SPMs, mandated restructure negs. Bank practices legal, fair. found unfair, high-cost for: ARM, ARM 3% below index, Debt-income > 50%, Loan:Value = 100%. Practice considered predatory in aggregate. Commonwealth v. Fremont
iii. if

Other Material
I. Intellectual Property A. Intangible Property 1. Patent: inventions, processes, machines, components of matter 2. Copyright: Literary/Artistic works (music, program, computer code) 3. Trademark: Symbol indicating source of goods/services B. Trademark Law

1. OG rejected as unconst.. Success under comm. cl. regs.. States register, fed has reg. list. No ―good faith‖ mistakes a. must be used in commerce, unlike patents/copyright; may be abandoned b. no TM of generic names, TM may become generic 2. Dry cleaning pads of a special green-gold. TM exist to prevent unfair competition. Color can indicate origin, carry meaning as do words. Acq. ―2d meaning‖ thus TMable. reduces buyer confusion. Qualitex v. Jacobson a. Lanham act: amended to allow in junction w/o proven customer confusion b. TMs may be diluted by Tarnishment or Blurring i. Tarnishment: when competitor sells inferior goods (same name, diff products) ii. Blurring: when mark dissociated w/ specific use › e.g. goldfish ripoff cut off for similar shape, not name C. Copyright Law 1. No state law (preempted) 2. ―Tangible medium of expression of OG work of authorship‖ 3. Life of author + 70yrs; in work-for-hire, 95yrs post-pub or 120yrs, whichever first 4. Original Works a. Squabble over phonebook records. provider had list, wouldn‘t license, competitor took anyway, suit. No copyright as the list was alphabetical. only copyright OG works, no ‗expressive element‘ Feist v. Rural Teleph. II. Regulatory Takings A. Property as Mediator Between Citizens and State 1. Defining v Defending property rights a. Property protects rts and safeguards against interference by gov‘t b. Balance b/w st. power to define rts (protect pub welfare) and protect indiv. for gov‘t by limiting state power i. Amend. V prohibits ‗taking‘ of property w/o just compensation ii. police powers enable gov‘ts to legislate to protect welfare › no just compensation for some quasi-takings, e.g. enviro laws, labor restrictions › eminent domain is when state may appropriate property w/comp for pub welfare (balancing test) 2. Eminent Domain and Condemnation a. Gov‘ts have power to condemn property w/ just comp. i. may be fed/st/muni/reg. ag. ii. §§ either quick take (seize and sue) or by negotiation of fair price (and sue later) B. Public Use 1. Federal Constitution a. NL sought to revitalize area by development. would ‗create jobs, increase tax rev.‘ city appv‘d takings to complete project by neg, eminent dom.. No favoring of Pfizer (not on prop) thus no viol on pvt→Gov‘t → (spec.) pvt entity. Public use of land is ok. broad definition, deference, good for area, ok. Kelo v. New London i. diss: taking from pvt→pvt prohib, suspicious circumstances, no proof of pub. welfare, need some scruit. city was not itself ‗condemned‘ like precedent. creates dangerous prec. ii. naturally, the project was a spectacular failure — New London is still a piece of shit C. Just Compensation 1. owners are due ‗fair market value‘ not ‗personal value‘ nor value of buildings beyond FMV 2. businesses not due comp for lost goodwill, customers, unless temporary, or by § 3. if partial taking: value is of land taken + lost value of remain D. Regulatory Takings Doctrine 1. Adhoc Test a. Penn station sought to build up, denied as historical. Taking in sense of lost value of prop. Gov‘t acts that diminish value for ‗public good‘ are not compensable. no taking on prior belief of dev. Penn Ctl. v. NYC E. Forced Seizures of American Indian Land 1. US buys Ak. Seeks to log, displaces Indians. They seek comp. as taking. Following johnson Indians did not have title to land to justify compensation, no prec of V, just right of occupancy; Russia never recog‘d title. Tee-Hit-Ton v. US

2. US allows settlers into black hills violating treaty allowing only for ‗management.‘ Indians had title from treaty rat. by cong.. US only offered rations as payment, not just comp, no good faith by gov as trustee. US v. Sioux Nation a. pmt of $1B sits in account for sioux

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