Property Outline Fall 2003

Introduction I. General
A. Property: i. Relationships between people with respect to things. B. Possession vs. title i. Possession: usually dominion and control ii. Title: ownership a. Common law favors either or results, not shared interest. C. Bundle of rights: Property is a bundle of rights, not necessarily all present: right to possess it, use it, exclude others from using it (most fundamental), transfer by gift or by sale.

II. First Possession: Acquisition by Discovery, Capture, Creation
A. Acquisition by Discovery i. General rule: The first in time to discover land in a new world has exclusive property rights, even as to the native people. This was agreed upon by European powers. ii. Johnson v. M’Intosh (p 3)
Facts: Issue: Analysis: Johnson purchased it from the Indian tribes on the land (1773 &1775), M’Intosh got it later from the US gov’t. Johnson sued for ejectment. Can Native Americans convey good title to lands they occupy and that are claimed by the US Govt? Have to trace the “chain of title.” Mere occupation may not give you legal title. Only a state can discover, and the first discoverer has exclusive property rights (Britain) – before discovered, there was no title. Native Am only had right of occupation. Britain gave it to US, who gave it to M’Intosh. Native Am had no title to transfer (they in some sense conveyed it already to Britain). Only first in time to “discover” real property has power to transfer title. Possession ≠ title. Native Americans couldn’t convey to Johnson.


a. Note: The law has to reflect some notion of reality and of history, title is European created, this is not about logic but experience – the logical construct of the law is imposed on the history. If court had gone other way, would have undermined all claims of title given by US govt. iii. Labor Theory of Value (Locke): Accession a. General rule: Want to recognize the value of the labor people invest in property. We want to encourage people to invest productive labor. b. Law of accession comes into play when one person adds to the property of another. What happens when someone uses someone else’s property to make something? Who owns the product? 1. Traditional rule: person who owned original property is the owner, but if the improver changed it so much that it is a completely different thing, it belongs to the improver (grapes into wine). 2. Modern rule: disproportionate value – if value of improvement is disproportionate to the value of the materials, improver gets it. Usu has to be done in good faith. c. This theory applied to Johnson v. M’Intosh: Native Americans didn’t put an adequate amount of labor into the land to perfect a “property” interest in the soil. 1. Monopsonist – sole buyer. Govt was sole buyer, which reduced the cost they had to pay. d. Property confers and rests on power. Owners have a form of sovereignty over others because the sovereign state stands behind the owner’s assertion of right. 1. Critical Legal Studies – reject the notion that the law is neutral and apolitical. 2. Critical Race Theory – develop a jurisprudence that takes racism into account.


Property Outline Fall 2003

B. Acquisition by Capture i. General rule: Property is acquired by actual capture. Mere pursuit is not enough. ii. Pierson v. Post (p 19)
Facts: Issue: Post pursues the fox on un-owned land, Pierson killed the fox (in sight of Post) and took it away. Does Post own the fox because he was in pursuit, or does Pierson own it because he actually killed and captured it? At what point between wild animal running free and physical possession is ownership established? Ferae naturae: wild animal (on un-owned property) isn’t owned until captured Dictum: When wild animal is wounded to the point at which it’s liberty is taken away – mortally wounded, cornered with no hope of escape – it could be considered to be owned. Ruling the other way would create a “fertile source of quarrels and litigation” – actual capture is easier to prove. Thinks foxes should be killed, so that the rule should encourage pursuing and killing. Pursuit with reasonable prospect of success = title Capture is good enough for title. Saucy intruder wins.


Policy: Dissent: Rule:

a. Ferae naturae: wild animal (on un-owned property) isn’t owned until captured b. Return to natural state: if animal escapes, ownership right is extinguished. c. Majority opinion is a rule (clear) – capture = title, dissent is a principal (muddy) - Pursuit with reasonable prospect of success = title. 1. Principals are more flexible but more costly to administer 2. There are few examples of hard and fast rules. Rules are cheaper to administer and the outcome is clear. iii. Ratione soli - owner of the land has constructive possession of wild animals on the land. Landowners regarded as the prior possessors of any animals ferae naturae on their land, until the animals take off. a. This is a “construct,” a legal mechanism for determining ownership without actual possession. This enforces my real property rights, discourages trespass. b. CA: Animals wild in nature are possessed by: landowners while they are on the property (if they claim ownership); when tamed; or taken and held in possession; or disabled and immediately pursued. 1. In this case, would it change the result in Pierson? Post could argue that he disabled the fox and pursued it. Pierson could still argue that he had taken it and held it in possession. This still helps Pierson more (but it does put Post in a better position than he would have been, right?) c. Many states don’t follow ratione soli. People have right to keep hunters off their property under a tort right (trespass) and not as a property right over the animals. 1. Could you be guilty of trespass and own the animal? Probably yes, although then you are encouraging trespass. iv. Custom and usage rule – court makes a decision about ownership based on the custom of the industry and whether a ruling would impair industry. v. Ghen v. Rich (p 26)
Facts: Ghen is a whaler. He struck a finback whale that floated to the shore. It was found by Ellis, who, against Provincetown finback whaling custom, auctioned it to Rich, who sold the oil. P-town custom – whaler shoots whale, which sinks to the bottom and surfaces days later somewhere along the shore. Finder tells whaler (lance has identifier on it) and gets a finder fee. Ghen sued for price of oil and argued that it was his property. Who owns the whale, the whaler who killed it or the finder? Custom for these whales was different from that of other whales. The rule is that a whale killed (and attached to the boat by rope) is the property of the boat owner. This whale sinks to the bottom and later surfaces days later. If court doesn’t protect the customs of the whaling community in this case, whaling will cease. Custom or usage rule: Court makes a decision based on the custom of the industry.

Issue: Analysis: Policy: Rule:


Property Outline Fall 2003

vi. Barry Bond’s baseball a. Spectator caught the ball, fell down in the fray, someone else picked it up. Who owns the ball? b. The court ordered the proceeds to be split. This is very rare. Usually it is either or. Why is that? There really is no good answer. Courts look at property matters as either or. 1. For a long time, people thought of the law as eternal truth that had to be discovered, and this implied absolute winners and losers. Now, we think that the law is crafted. This is breaking down the law that we have to have either or determinations. vii. Fugitive resources: Oil, gas, water found underground under property owned by more than person. a. Traditional: this is like wild animals (ratione soli and the rule of capture). People own things on their property if they capture it. b. Then, realized this is really not smart. It tells everyone to pump as fast as you can – if you don’t get it, someone else does. This also reduces how much can be extracted (if do it slowly, can get more) and led to depletion of ground water. Inefficient production and no conservation over the long term. c. Western states governed ground and surface water by first in time 1. First person who appropriates and puts it to reasonable and beneficial use has superior right to later people. 2. Eastern states, more water, riparian rights – each owner has right to use subject to the rights of other owners. viii. Externalities – Exist whenever someone makes a decision about how to use resources without taking full account of the effects of the decision. Externalities are a function of transaction costs, and they encourage a misallocation and inefficient use of property. a. External costs – X doesn’t consider costly effects if they fall on others, even if the extra amount it would cost him to fix it is way less than the overall cost to the community if he doesn’t. This use is “inefficient” because another use would increase the value of the resources involved and make all parties better off. b. If other parties offer to pay, X has to think about how his actions affect others, and thus “internalizes” the externality. c. Transaction costs: If it is too hard to make an agreement, then the transaction costs are too high – because there are lots of parties, the cause/effect is unknown/uncertain, those who don’t contribute can get a free ride if they don’t. 1. Freeriding problem occurs when have to extract payments from a group where the benefits will confer on the group as a whole. ix. Demsetz and externalities (p41) 1. General rule: Primary function of property rights is to guide incentives to achieve greater internalization of externalities. This happens when the gains of internalization become higher than the costs. 2. Communal property: Costs of agreement and costs of policing use of communal ownership may be high. A) Communal ownership results in great externalities, and the more owners, the higher the cost of internalization. Transaction costs are high. B) People have incentives to over use and greater tendency to act contrary to collective best interest. 3. Private owners have an incentive to maximize resources, and have less externalities. A) Promotes economic efficiency and free transferability. B) Private ownership “nourishes diversity.” C) Private ownership reduces externalities by transforming external costs into internal costs 4. Criticism: assumes that efficiency maximizing behavior for the individual means efficiency maximizing behavior for society. b. The anti-commons: multiple rights to exclude, encourages underconsumption


Property Outline Fall 2003

C. Acquisition by Creation i. General rule: creator has exclusive rights to tangible property (chattels). a. For a long time, property law was unfriendly to intangible things. Concept of property came from land. b. Creator’s ownership rights in intellectual property may be uncertain unless protected by statute c. Quasi-property – property rights over intangibles with respect only to certain others, such as business competitors, but not to the general public (INS v. AP). d. Competition creates a better deal for the consumers (Cheney Bros & Chanel) ii. INS v. AP: copycats (p 60)
Facts: AP releases news for members. AP has 3 complaints about INS’s behavior: 1) bribing employees, 2) inducing AP members to violate by-laws, 3) copying news info from bulletins & early editions and selling to newspapers. First two already decided by lower court. AP says INS’s actions violate AP’s property rights in the news and constitutes unfair business practice. INS argues that the moment AP makes the news public, it is available to all. May INS be restrained from taking news from bulletins and newspapers (intended for public) with purpose of selling it to INS clients? News facts themselves are not property, and reports are not of literary value so that copyrights would apply. What INS is doing is unfair business practices. AP has right to quasi property with respect to INS b/c it is their “stock in trade.” AP is protected from INS but not from the general public. AP has an ownership right that transcends the physical aspect of the property. Keep businesses from unfairly profiting from the labor of another. You can’t take something to “unfairly profit,” even if it is in the public domain. Want to encourage gathering news and keep it profitable. Businesses can have quasi property where their right to intangible property is protected against another business using it to profit unfairly from their labor, but are not protected against the general public.

Issue: Analysis:

Policy: Rule:

iii. Cheney Brothers v. Doris Silk Corp. (p 64)
Facts: P makes silk designs each season, some succeed. D copied successful designs and sold for cheaper. P cannot patent all the designs (prohibitive, takes too long) and cannot copyright (no words). P requests protection only during the season. Are the silk designs quasi property as the AP news in INS v. AP? Can’t ask for limited protection. INS v AP was specific to that situation, not a general rule. To prevent imitation of a design would give too great power to designer. There is no common law copyright protection. We want to encourage competition b/c it is a better deal for the consumer. Imitation of the news doesn’t improve it, but imitation helps here to lower the price. Promote competition to prevent monopoly and lower prices, but must be balanced against incentive to produce, invent.

Issue: Analysis:

Policy: Rule:

a. Copyrights 1. Protects the expression of ideas, not the ideas themselves. 2. Copyright is federal law. Want copyright protected across the country b/c otherwise it would interfere with commerce. This is a good policy argument, but it is not one we have accepted in most areas of property law (which is primarily state law). 3. The Constitution specifically called for a national copyright /patent law. 4. It is a reward system, and you want to provide incentive for people to keep creating new things. We’ll give you property rights so you can make money off of it in order to promote progress. 5. Patents only last for 20 years. Copyrights keep being extended (Mickey Mouse). b. Smith v. Chanel (p 65) 1. Smith advertised product was same as Chanel No. 5. Allowed to do so b/c there is a public benefit: imitation & competition = lower prices. Expenditure of $ is not a legally protected right.


Property Outline Fall 2003

iv. Virtual Works v. Volkswagon (p69)
Facts: Virtual Works, ISP, bought, knowing that it was remarkably similar to Volkswagon’s trademark, VW. They thought about possibly selling to VW later. Virtual Works used it for 2 years, then contacted by VW to buy from them. Virtual Works said would sell to the highest bidder. Did Virtual Works, in bad faith, purchase in order to profit from its similarity to Volkswagon’s trademark? There is a law passed by Congress prohibiting cybersquatting. To be illegal, you have to have a bad faith intent to profit, and there is a whole list of factors for determining bad faith. Virtual Works met these criteria: knew it was similar, intended to profit, could have bought another name, never went by VW. Fair competition is good, unfair competition is bad. Bad faith use of another company’s registered trademark in a domain name is illegal. Unfair profit from someone else’s good name.

Issue: Analysis:

Policy: Rule:

a. Cybersquatters = Virtual Works b. Parasites are people who register domain names similar to TM and then use them in ways that tarnish image. c. Poachers: register domain names similar to other orgs in order to disseminate unfavorable info about them. d. Dilution – use of a TM may dilute or blur distinctiveness of TM. v. Property in One’s Persona (p 77) a. Used to be all about privacy: Woman whose face was on a flour sack had to consent. b. Then became more about right to exploit one’s image for one’s own profit. 1. Vanna White case: Computer image based on her. It wasn’t her image but her character and concept. She has a property interest in her character. vi. Property in One’s Person (p 79) a. Moore v. UC Regents (p 79)
Facts: Moore sought treatment for leukemia. Had his spleen removed and many tests done. Had 7 years of tests and follow-up procedures he was led to believe were important to treatment. Doctors used his spleen and samples to make cell line worth billions. Moore sued for conversion (possession of someone else’s property as your own), lack of informed consent, breach of dr’s disclosure obligations. Does a person own his or her own organs and bodily tissues once removed? Found no cause for conversion, just breach of doctor’s disclosure obligations. Conversion must be an actual interference with P’s ownership or right of possession; only property can be converted. It is possible that someone else’s cells could have been used. His cells were the starting point, but at the end point they were no longer unique to him, and Drs put in lots of work and skill. Moore has an interest in his cells while in his body but extraction from his body severs his interest. Cal Statute limits patient’s control – human tissues should be safely disposed of. Moore had the right to say no to the procedure and can keep his cells in his body. Conversion is a “strict liability” tort, all who use the cells would be liable, including other researchers with no connection to patient. Property is a bundle of rights: right to use, right to exclude, right to dispose of. These rights don’t have to all be present all of the time for you to have property interests. Property rights of one’s own tissue is fair and prevents unjust enrichment. Majority’s interpretation of statute is wrong. It authorizes transfer of tissue for research purposes and only prohibits sale for treatment and transplant. The statute treats tissue as property that can be sold and should be protected by law of conversion. Majority gives patient only the right to refuse and not the right to grant consent on the condition of sharing proceeds. To win on a nondisclosure action, Patient must show that they would have said no if he had known AND no reasonable person would have said yes. Want to encourage researchers to come up with medical breakthroughs that help people, and legislature should decide. Leshy disagrees – if wanted to have legislature decide, should have ruled the other way. Patients don’t have lobbying power like the medical industry

Issue: Analysis:




but nowhere near as much as the worth of the product. In the long run this is economically rational even though inefficient in this case. difficult to reverse and potentially at odds with other branches of gov’t. Even though this is an extreme situation. 1. entered Tedesco’s property in order to provide medical assistance and legal advice. b. Steenberg Homes went across their land anyway. The right to include and exclude (p 99) 1. 6 . Intentional trespass can threaten the individual’s ownership of the land. one of the most essential sticks in the bundle of rights.Property Outline Fall 2003 Rule: Once body parts removed. B) Law of accession: What happens when someone comes along and applies his skill and labor using your materials? Who owns the product? 1) The person who owns the materials continues to have an interest. This serves the public good. but they didn’t. Jacque v. A) The right to exclude is fundamental (even when inefficient) except to serve the public good. General rule: Property is a relationship among people that entitles owners to include (permit) and exclude use or possession of the property by others. and need services. Right to exclude is not absolute: does not include dominion over people owner permits onto the premises (farm-workers). Can owner exclude someone from crossing land even if would cause no damage and is more efficient than going around? US Supreme Court recognizes private landowner’s right to exclude others from his land. Did D trespass by entering and refusing to leave private land in order to offer legal and medical services to farm-workers housed on that land? Title to real property does not include dominion over people owner permits onto the premises. Migrant workers are highly disadvantaged. This policy distinction isn’t relevant in Jacque. Is this consistent with Jacque? The larger human value served by allowing medical and legal aid in the Shack case overcomes the right to protect against trespass. 2. Notes: A) A patent is granted for invented skill. If court has a choice between common law and the constitution. Moore had no property rights over his tissues once they were removed from his body. they no longer belong to the patient but Drs have a duty to get informed consent to use them. Society has interest in punishing trespassers beyond protecting the interests of the individual landowners. this is the law and you have the right to exclude people. The right to exclude is fundamental (except for serving public good). 2) How much depends on all the facts and circumstances. There is no legitimate need for a right in the farmer to deny workers the opportunity for aid. courts avoid the constitutional question when they reasonably can. In addition to property rights. Tedesco said they had to do it in his office. Generally speaking. State v. Ds refused and said workers had right to be seen privately. Courts may give owner of materials more than worth of materials. Steenberg Homes (p 100) Facts: Issue: Analysis: The best path for a mobile home to be transferred was across the Jacques’ land. convenience doesn’t override property rights.they could have. there is a privacy and liberty interest at stake here. Policy: Rule: A) Privacy interests. Ruling on constitutional matters is rigid. Shack (p 101) Facts: Shack – attorney for farm workers legal rights and Tejeras – nonprofit worker. The patent of the process doesn’t mean I own what created that process or the materials that go into the process. Necessity may justify entry upon lands of another. Jacques refused. 3. Issue: Analysis: Policy: Rule: A) The court doesn’t say this is unconstitutional under 1st amendment .

Armory v. title that is good against all except the true owner. so then if the true owner does appear. What if the sweep is gone? Law probably would find that the jeweler had to pay again. Goldsmith takes the jewels out. Sweep gets all the money based on the assumption that he has absolute clear title to all but the owner. The jeweler is paying the sweep in effect for title. c. Terms of the lease may affect ownership 3. b. Finder: low standard. etc. possessory right stronger than Peel. the jury should find the strongest case against him (most valuable jewel as would fit in the setting). law didn’t want to split property: It’s yours or it isn’t. a. ii. and the other person is the bailee. But S/L would apply. A) The true owner can’t sue the wrongful possessor if the bailee has already recovered from him. Acquisition by Find (p107) i. Cleaners. Who has rights to the jewel? Unless the jeweler produced the jewel. Possessor of personal property has superior rights against all but the true owner. would lead to endless series of unlawful seizures once out of true owner’s possession. Locus owner a. Replevin is suing for return of the actual goods. then the jeweler has to give it back. The owner is the bailor. Bailment is temporary possession for some particular purpose. d. 2. even if he obtained his possession wrongfully. Finder has title over lost property. Elwes v. and Gift A. Finder has good title against all but the true owner. and the boat is like a mineral OR B) Could say that the gas company leased only the particular minerals in the soil and the boat belongs to the landowner 7 . Notes: 1. General Rule: Finder has good title against all but the true owner. Subsequent Possession: Acquisition of Property by Find. Adverse Possession. 2. and the jeweler is the bailee. iii. but contract law doesn’t work all the time. 2. Brigg – gas company leasing the land found a boat in the land. “Lawful possession”: Anderson v.Property Outline Fall 2003 II. General Rule: 1. 3. Otherwise. The sweep is the bailor. Traditional rule: Different kinds of bailments had different kinds of standards of care. 1. This is an implied bailment. Locus owner doesn’t have title over lost chattels not attached to land but does generally have title over items imbedded in the soil. In regards to the true owner: the sweep is the bailee. T does have a permissive. Trover: Sweep sued not for the jewel but the value of the jewel (trover). b. The law of bailment is traditionally the law of contract because it is usually governed by some contract. Modern: Mostly just a reasonable duty of care regardless of kind of bailment. owner of locus has title over mislaid property. Delamirie (p 108) Facts: Issue: Analysis: Rule: Chimney sweep finds a jewel and takes it to a goldsmith for appraisal. Gouldberg.: high standard of care 2. A) Could say that the gas company leased all the things that could be mined from the soil. It is a pretty elaborate law. What is the right of the lessee? 1. 3. CS suing for amount jewels were worth (trover). and the owner is the bailor. Should the value be discounted the amount of the odds that the true owner will show up? A) For a long time.

but this is chattel that isn’t attached. Where there is a real property owner in the mix. 4. CA – finder must notify true owner if known and restore without compensation. a. or make arrangement to divide the property between finder & owner. take to police. If less than $250 and owner doesn’t claim in 90 days. the law gets muddied. Hannah v. Title to finder absolutely. Maximum utilization of property 5. Hannah demands broach or damages. Finders keepers would still cause litigation over who found first. have clear rules. Protect (reasonable) expectations of locus owner. Lost: true owner didn’t intentionally or clearly place object somewhere. Policy: Rule: v. should not encourage people to lie and should encourage and reward honesty. B) Why not penalize the true owner for losing it? You might be licensing people to steal in ambiguous situations. Hannah. to Hannah. finder keeps it. McAvoy v. More valuable property may be advertised. you have interests and expectations around that property. a soldier. Medina (p 118) Facts: Issue: Analysis: Policy: Rule: Plaintiff found a pocket book on the counter in defendant’s shop. Get back to true owner. The law. mislaid 1. c. We want to reward finders. Statutes: 1. Objects of the law regarding lost. This is first and foremost. Minimize litigation: Promote certainty. Abandoned: true owner intentionally left it because no longer wanted it. d. Mislaid: true owner intentionally places object somewhere and subsequently forgets to pick it up. b. rewarding honesty. he never possessed the jewel even though he owned the land. Finder has title over lost property. Title to finder except as to true owner. Lost v. and if not claimed. Is the finder of a pocketbook left on the counter of a shop entitled to possession as the finder of lost property? A pocket book left on the counter is not lost property. Where you have these conflicting policies. owner of locus has title over mislaid property. No owner was found. who was never found. There is a law that says you own things attached to your land. P brought D’s attention to the existence of the brooch. which was lost. Peel (p 111) Facts: Issue: Analysis: Peel has a house that was requisitioned for soldiers. Notes: You can still serve the policy by giving the shop owner custody but the finder should get it if true owner is not found. You get a bunch of cases talking about things that are not coherent. Thus.Property Outline Fall 2003 iv. Title to locus owner except as to true owner (usually). P found the brooch. 2. especially honest finders. finds a brooch in the house. sold at public auction 8 . A) Getting back to owner best served by giving to Peel. 3. True owner more likely to come back to the shop to look for it. as the finder of the lost article whose true owner was never found. and tried to find the real owner. except against the true owner. where it can be avoided. 2. A) Protect privacy – don’t want to authorize people to go onto private property looking for things. if > $100. and abandoned property: 1. mislaid. has better title than the defendant who was the owner of the premises. Encourage people to be honest. 3. Locus owner doesn’t have title over lost chattels not attached to land. have better title to the brooch than the finder? The plaintiff. We want to encourage items to get back to their true owners. 6. A mislaid item has a higher chance of being recovered. Finder has title (against all but true owner). Thus the finder of such property does not have title because the property was not lost. Does the owner of the land on which the finder found the brooch. D never occupied the land and was never in possession. Hannah turned it over to the police to search for owner. Peel claimed from police and sold. Protect right to exclude.

In the big picture. If found in ground  owner of land 3. then statute of limitations starts over. b. Kunto). regardless of subjective state of mind. 2. sensitive to this. 3. and treated as other found property. and 4) continuously for length of statute of limitations. Treasure Troves: treasure buried underground for safe keeping with intent to return. it’s better even if you end up rewarding a few thieves. then you are treating people with base. then US govt.thought it was yours A) You can still be hostile to owner even if in good faith B) Courts more likely to award to person who thought they had a claim of right than person who knows he’s trespassing. 3) openly and notoriously. Use cannot be authorized by owner. litigating these cases is a mess. It isn’t fair to trigger the clock if you don’t know about it. d.Property Outline Fall 2003 vi. Historians and archeologists are very distrustful of applying the law of finds. “Actual entry and exclusive possession” means using the property as the true owner would use it under the circumstances (Howard v. Won’t do it unless there is some incentive. Shipwrecks are not considered abandoned property. Continuous use is how the true owner would use the land under the circumstances. The modern salvagers are. generally – generally claimed by government or insurance company. locus owner. Encouraging these excavations is also part of the picture. Estray – beasts whose owner is unknown. c. a. Open and Notorious 1. if there wasn’t reason for you to know it. then international law and usually no locus owner. hostility is implied. 1. it is mislaid and belongs to owner of plane. at least public relations-wise. If owner reasserts right to property. B) If you say state of mind counts. 1. viii. If you do it right. Continuous 1. vii. c. For small encroachments. State owns certain distance out. true owner. 1. Usually litigation is between private party and insurance company. Hostile (state of mind): must have intent to claim the property of another. You have to be able to know that there is a trespass. Acquisition by Adverse Possession (p 127) i. Statute of limitations begins when possession/use is open and notorious 2. Another problem is that finding shipwrecks is expensive. 9 . General rule: If you 1) actually enter to exclusively hold and possess 2) hostile to the true owner’s rights (in minority). If found in property but deemed abandoned  first finder or his agent/bailee. Owner of property should be put on notice by the use. B. Say they will excavate archeologically. actual notice to owner is required (Manillo v. interests of finder. In US. 3. Traditionally belonged to the king b. sometimes between the locus owner and/or govt. you can serve all of these purposes. If found in moveable property like an airplane. Minority requires hostility. Shipwrecks a. This use better informs the true owner. Gorski). thieflike intentions the same as honest mistakes. 2. Government should regulate to protect the archeological interests. A) If you say that state of mind is irrelevant. all hidden $. 2. title becomes yours and is assumed to have become yours at point of entry. Majority uses Objective Standard: If other requirements of AP are met. a. Claim of right: Good faith claim . 1. This is the moral objection to objective view. b.

10 . 3. Color of title vs. or 2) where it has been usually cultivated or improved for at least 15 years. Why AP? a. Both are valid. Purpose of this is to give notice to others so that the world and the true owner that I am claiming it. This is for the good of society. AP earns title by his actions. so why does Lutz get nothing? b. There are other reasons for not looking at state of mind. Western states have shorter statutes of limitation. and there was junk laying all around. Lutz (p 129) Facts: Lutz bought some land near an empty lot. The garden was only on a small part of the land. Van Valkenburgs bought the empty lot and tried to kick the Lutzs off. Notes: 1. Penalize the true owner for sleeping on their rights. You have to do it for years. law says ok. This focuses on actions and intent of the AP. Issue: Rule: Analysis: Dissent: Rule: a. the clock starts ticking on the statute of limitations. They traveled across the lot. iii. Lutz conceded that the lot was owned by Van Valkenburgs but argued for right to use the travel way and won (easement). Sleeping – looks at true owner. and it is almost always something that happened a long time ago. 1. If someone makes productive use of property that would otherwise lie fallow. ii. AP takes time. built a small shack on it. 2. ii. but there were markers. When you take steps as an AP that gives the true owner the opportunity to kick you off. Statute of limitations 1. It is hard to figure out and hard to prove. Economic: if you (owner) are not using it. possession of part of the land is constructive possession of the whole. but there are some cases that would turn out differently based on which one you think of as the main reason for AP. d. c. The proof fails to show that the whole of the land was cultivated and improved by the Lutz’s. and the true owner has fed that right by not ejecting. Squatters’ rights: book says squatters never get rights. A) Conventional wisdom is that this came about b/c of RR land. Notice to owner: “Protected by substantial enclosure” – court says no. 30 yrs later. In court. grew vegetables and raised chickens on it. Earning – productive economic efficiency idea. there is no reason why they can’t be APs. You can AP part of someone’s property. the chicken coops were portable and moved around. 2. Court shouldn’t be making decisions on the facts but looking at the law and whether the trial court erred Intent to claim property or mistakenly possessing property is not enough. someone else should be allowed to. Earning and Sleeping a. RRs were huge landowners with no way to effectively police the land. Lutz said he knew at the time it wasn’t his land. good works and socially productive activity. Lutz conceded that the land was owned by the Van Valkenburgs rather than declaring his hostility and asserting his rights as the true owner. Property is there to be used productively. and usually have an additional requirement that you must pay real estate taxes to have AP. A fundamental concept of adverse possession is that the occupation be “under claim of title” that is hostile to the true ownership. but if they are using the land openly and adversely.Property Outline Fall 2003 e. b. Van Valkenburg v. Then Lutz brought suit for ownership of the lot through adverse possession. OW Holmes: Possessor has come to expect continued use and access. Was the whole of the land “usually cultivated or improved” by the Lutzs? Under NY statute: Adverse possession 1) where it has been protected by a substantial enclosure. Color of title is where you are making an adverse possession claim but you have something in writing that gives you title. b. There is a lay sense of squatters that there is an understanding btwn owner and squatter. The economic explanation doesn’t depend on the state of mind. In a previous suit. claim of right/claim of title. Rules for these claims are somewhat more relaxed: shorter statute of limitations.

If it is open and notorious. They both have an ownership and it is inefficient. Maine doctrine (hostile intention) is rejected. Mistaken improvers 1. B) Intentional encroachers often made to remove. 2. estoppel 1. But what if there is more than one entrance? How about whoever discovers it? But then licensing trespass. That person is the only one who can use it from their property. If the two parties agree on a boundary but they are mistaken. Maine doctrine (hostile intention) rewards the intentional wrongdoer while disfavoring the honest. iii. Property interest protected by property rule: can’t take from owner without consent. may be ordered removed. Court says there must be actual notice. 2. but state of mind is irrelevant. but probably would suffice to have “inquiry notice” – you have enough knowledge to put on you the duty to inquire further. Notes: 1. This is what the court adopts. The encroachment was so slight that Mannillo may not be expected to know of it even though he could see the actual path. B) This is a commons problem. For small encroachments. Gorskis made additions to the house. C) If innocent encroachment is so small as to be trivial. Use must be open and notorious. Issue: Analysis: Policy: Rule: a. c. Later. Property interest protected by liability rule: Interest can be taken without owner’s consent but only payment of judicially determined damaged: forced transfer. This can lead to high negotiation costs w/ each trying to get the best deal. 11 . 2. Gorski claims title by adverse possession.Property Outline Fall 2003 e. A) If takes up lots of land. Property rules and liability rules 1. forced conveyance of land at market value or give landowner option to buy improvement. Bilateral monopoly: Two parties locked into dealing with each other. Manillo v. Doctrines of agreed boundaries. b. even innocently. including raising the house and extending the stairs. p 141) 1. mistaken entrant. Cave is under two people’s properties. Who owns the cave? A) Ad coleum doctrine is that person who owns land owns what is in the air above and under the ground. These steps and the concrete walk extend 15 inches onto Mannillos’ land. Bilateral Monopolies (Marengo – cave problem. acquiescence. All transfers are voluntary. Is a hostile state of mind required? Was possession open and notorious? When Gorskis built steps and path over property line. There is a single owner. Making owner survey all the time is an undue burden. actual notice to owner is required. This isn’t economically efficient. and there is a long period of acquiescence (but perhaps shorter than S/L). Gorski (p147) Facts: Gorskis bought a lot adjacent to lot owned by Mannillos. C) Could say that person who owns the entrance owns it. relief may be denied. Early common law: anything built on the wrong land. Hostile state of mind requirement rejected. they thought they were on their own land. Gorski’s should pay reasonable price for the land (modern trend). Sleeping rationale – Mannillo didn’t even know he was sleeping on his rights and reasonably couldn’t know. Earning rationale – Gorskis built the steps 2. belonged to the landowner. and others don’t have expectations of being able to use it. then neighbors are estopped to deny the validity of their statements and actions d.

Tacking is permitted if successive occupants are in “privity” (mutuality of legal interest). Adverse Possession of Chattels (p 163) a. inherited it. State owns in trust for the people. S/L is extended to certain length of time after disability is removed. and it is an unfair burden to have them police it all the time. AP against the government (p162) a. O’Keefe did not report paintings stolen at the time. Usually shorter statute of limitations b. You can tack on previous adverse possessor’s time if you are in privity (a legal relationship) like privity of contract. A person may tack the adverse use of his predecessor even when none of the occupied land is included in the deed. iv. Earning rationale: earned it from both owners 2. c.Property Outline Fall 2003 iv. unsound mind. 1. 2. vi. 1. Govt is immune to claims or suit w/o consent. Snyder argues that statute of limitations has run. Tacking (p 159) a. Tacking of AP time is permitted if successive occupants are in “privity” of contract or blood. The govt generally keeps this land for public to use. The Howards (occupying land two lots to the east) had a survey of their land in 1959 and discovered that they actually owned the land of the Moyer house. and the Moyers owned the land of the Kunto house. got it as a gift. by. they would fence it off and keep people out. Howard brought an action to get legal recognition of their ownership of the title of the land occupied by the Kuntos. Applies if disability existed when cause of action accrued b. Kunto (p153) Facts: Since at least 1932. who knew Steiglitz. Can summer use only of this summer home be considered continuous use as required for adverse possession? Can an AP under color of title use the period of time immediate predecessors occupied to establish his AP? Summer use only of a summer home is continuous use. Also some Constitutional provisions protecting state lands. Govt owns 1/3 of land. Howard v. Also has included anyone “claiming from. only much later. or under” such a person vii. Snyder (p 163) Facts: Georgia O’Keefe found her paintings that had been stolen in the 40s in an art gallery. If owner has certain “disabilities” – minor. b. 3. You can tack on land if there is a piece of it that isn’t in the deed but you think it is. Continuous use for AP purposes is measured by how an ordinary owner of the land would use it under the circumstances. Series of trespassers can’t tack. Is there enough conflict of evidence for suit to be brought by O’Keefe for possession and title of the paintings? Issue: 12 . Howards traded with Moyers the title of their land for the title to the Kunto’s land. Gallery owner (Snyder) bought from Frank. Sleeping: Shouldn’t you go out and look at it before you buy it? First owner slept and so did the next owner. The claim of right of a person who occupies a lot directly adjacent to the lot in his deed is no less persuasive than the person who believes she is purchasing more than her deed describes. You can also tack on previous true owners if the property was transferred while you were AP. Issue: Analysis: Rule: v. If govt was open to AP. and has been used for cases where the owner believed that he owned more land than his deed stated. This how an ordinary owner of this land would use this home. O’Keefe v. A survey by the previous owners showed that the deed was correct. bought it from the other. Common law: AP doesn’t run against govt. who said he got it from his father. Disability (p 161) a. 1. Sovereign immunity. and has title through adverse possession (tacking possession with Frank’s). the deed to the land occupied by the Kuntos described the lot adjacent to them rather than the lot they actually occupied.

it circumvents the will. Puts the burden on the true owner. We look to the conduct of the true owner. If the gift is valid. Museums have to give it back (complicated issues with tribes that don’t exist) unless. Newman kept the keys. Wills require a lot of formality but gifts don’t. 2. gift is not complete. Van Pelt gave Newman keys to bureau. Cannot be revoked after it is completed. administrator. iii. Can the museums claim AP? No. These gifts are automatically revoked and go back to the donor if the donor survives but cannot otherwise be revoked. C. Purpose of delivery requirement – partly to make donor feel and understand what they are doing. Until delivery has taken place. Inter vivos gift – gift completed while donor is alive. or by reasonable diligence and intelligence should have discovered. the more you undermine the wills statute. Demand Rule: AP clock starts running only after true owner demands return. both of the gifts causa mortis and the gifts inter vivos? Issue: 13 . Clock doesn’t start again if possessor changes and they are in privity. not the AP. b. S/L doesn’t begin running anew if items change hands as long as there is privity between possessors. Native American Graves Protection and Repatriation Act of 1990 (p 176) 1. However. Only NY has this rule. a.) who have a voidable title. facts that form the basis of the action. Gift causa mortis requires stronger proof than inter vivos gift. 2) constructive. Transfer of possession by subsequent possessors makes it harder for the owner to find it. doors in house and told her she could have everything in the house. General rule: A valid inter vivos gift must include 1) intent. A) Right of possession is possession obtained with the voluntary consent of the individual owner or tribe (and museum must show this) unless results in 5th amendment taking of property without compensation. ii. Gift causa mortis – gift given in consideration of death. cause of action will not accrue until injured party discovers. Also proof that the donor intended to and actually gave the gift. e. facts that form the basis of the action. we always look to actions of AP rather than true owner. 2. museum can show right of possession. cause of action will not accrue until injured party discovers. Federal law trying to get Native American artifacts and burial items to Native Americans. Constructive delivery – handing over a key or something that gives access to the subject matter of the gift. symbolic or actual delivery. Bost (p 180) Facts: On deathbed. Acceptance is assumed if it would be beneficial to the donee. 3. Symbolic delivery – handing over something symbolic of the property given (a written instrument). a. Newman v. iv. This is to protect the bona fide purchaser. once it has begun. Rule: c. d. The easier you make it for people to claim gifts causa mortis. Discovery rule for AP of chattels: in appropriate cases. 3) acceptance. sold everything and kept it. including life insurance policy in the bureau and fire insurance on the piano Van Pelt had bought for Newman. Newman sues for furniture and life insurance policies as gifts causa mortis and for her bedroom property and insurance money on the piano as gifts inter vivos. 2. or by reasonable diligence and intelligence should have discovered. Bost. B) Federal law trumps state law about AP. 3. Acquisition by Gift (p 178) i. 1. not how open AP is but how hard true owner tries to find it. Discovery Rule – in appropriate cases. In real property.Property Outline Fall 2003 Analysis: S/L won’t start until the items are discovered or reasonably discoverable as long as the owner has taken reasonable measures to locate the stolen items and notify potential buyers that they have been stolen. Was there valid delivery of the gifts to Newman from Van Pelt. Delivery 1. Bona fide purchaser cannot get good title from a thief but can from other scoundrels (bought with bad check. etc. and discovery rule still applies.

Brown) ii. includes tenancy for years. who had an obligation to provide certain number of soldiers to the king. Once a gift is made it is irrevocable. a. Estates (p 195) i.Property Outline Fall 2003 Analysis: Gifts causa mortis: There was valid delivery of any article of furniture that could be unlocked by the keys give to Newman. Under a will. manual delivery must be had. Dicta: no such thing as symbolic delivery for gifts causa mortis. life esate. Gifts inter vivos: There was valid delivery of Newman’s bedroom belongings because they were bought for her during Van Pelt’s lifetime for he exclusive use and control. Son never had possession. There was not valid delivery of the life insurance policy because it could have been manually delivered and bureaus are not intended or expected to store such things of value. tenancy at will. Leaseholders don’t have seisin. Requirement of delivery is not rigid or inflexible but must be tailored to suit the circumstances of the case. Estates: an interest in land that has two characteristics: it is or may become possessory. (p 238) iii. B. Court seemed to rule differently on facts found by the jury although appellate court is supposed to accept the facts found by the jury. a. Nonfreehold: have an ascertainable termination date. Requiring actual delivery in this case would be artificial. All land was owned by the king. When a gift is of value to the donee. you have to fit it into the existing pigeonholes. Son gets the painting. Possessory Estates (p 197) A. Feudalism (p 197-205) i. as these articles could not be manually delivered (constructive delivery is enough). Freeholder has seisin – possession with duty of feudal services. stepmother wants to keep it. People can’t make up any other kinds of estates. 14 . v. and the donee gets the remainder. When items are present and capable of manual delivery. neither title nor possession vests immediately. Father died. Courts interpret ambiguous grants as the largest estate possible (White v. and it is measured in terms of duration. and donor is limited to rights of life tenant. or whether he intended it to transfer some present interest. but Michael also gave clear and convincing evidence that he accepted it. acceptance is assumed. Gruen (p 187) Facts: Issue: Analysis: Father (Victor) wrote letter to son (Michael) giving him Klimt painting for his birthday. periodic tenancy. a. Father wanted to keep possession of painting during his life (keep a life interest). Policy: Rule: System of Estates III. Lord could give possession of a parcel to an underling in exchange for soldiers or other obligation (seisin). The correct test is whether the donor intended the gift to have no effect until after the donor’s death (making it a gift causa mortis). branch) while on the land. a. There was not valid delivery of the piano because Van Pelt insured it as his piano. Rule: a. Notes: 1. A valid inter vivos gift of chattel can be made where the owner reserves a life estate and the donee never has physical possession before donor’s death. If the bureau had been a safe and he gave her the keys. (p 239) iv. He gave possession to lords and barons. A safe is intended for holding things of value. To carry out your intent. There is too much instability if property owners have freeform ability to recreate rights. (tenancy at sufferance). Passing seisin had to include formal delivery of a piece of the land (clod of dirt. Freehold: no ascertainable termination date. it would have been delivery. Gruen v. Can a valid inter vivos gift of chattel be made where the owner reserves a life estate and the donee never has physical possession before donor’s death? There is a distinction between ownership and possession. while bureaus are not designed to hold things of value. includes fee simple. Constructive delivery is sufficient where the donor plainly intends to make the gift and the items are not present or are incapable of manual delivery because of their size or weight. 2.

Person w/ life estate has a life estate pur autre vie. Life Estate (p 221) i. collaterals (siblings. “To A for life. b. may not be able to use the property in many ways because of waste. b. Wills: person who gets your property under your will is your devisee. the more her interest will differ from the remainder d. Lasts for the life of the person. if a mine is later discovered. Most unrestricted and longest estate. You can sell your life interest. d. it is within his expectation that life estate will mine the coal. Life tenant can’t sell. 2.Property Outline Fall 2003 C. then it went automatically to heir for continued payment. LT can make changes if it doesn’t depreciate the value of the property. but can be measured by someone else’s life. b. parents. The older she gets. c.” “To A and at his death to his children” ii. pay interest on mortgage. it escheats to the state. D. Then heirs paid for it. Always followed by a future interest. a. AP was possessing against FS owner. 15 . If a person dies intestate (no will) property goes to heirs. Common law: “To A and his heirs” “To A forever” b. can’t get a mortgage for repairs. Affirmative waste – injurious. A) Remainderman has an ownership interest that has been snatched away by AP. Permissive waste – failure to take reasonable care of the property. B) R can sue LT for waste. 1. If AP property while owned in fee simple that is split into life estate and remainder during S/L. Creation of fee simple (p 211) Words used to convey fee simple: a. Duties of LT 1. as far as any property ownership can be absolute (ownership is almost never absolute). LT may not waste or unreasonably decrease the value of the property for the person with the remainder interest. Also must pay taxes. BUT. e. Fee Simple (p 209) i. life tenant would have to get remainder’s permission. can only lease during lifetime. Heirs are children and issue (their children). Gets more discretion about managing the property the longer her life expectancy is. cousins). Tenants could sell with lord’s permission. Waste doctrine a. You don’t have heirs until after you die. It is permanent and of unlimited duration ii. Modern trend: “To A. a. Heritability – land wasn’t owned by possessor but held by possessor as a tenant so couldn’t go to heirs. c. Affirmative and permissive waste (p 235) 1. and remainder people can’t stop her. Inheritance of Fee Simple (p 212) a. A) Generally speaking. Waste doctrine influenced by the age of the life tenant. Now spouse gets a portion. aunts. Adverse Possession of property held in life estate 1. c. nephews. Alienability – later became alienable and always passed to heirs. Why? She has more incentive for long term management. This is a question of negligence. 2. R loses property by LT’s inaction. Fee simple: Absolute ownership (used to be called fee simple absolute). No obligation to insure. Typically measured by the life of the person who holds the estate.” When language is unclear. make repairs.” “To A until he dies. voluntary acts that have more than trivial effects and that substantially reduce the value of the property. How Fee Simple Developed (p 209) a. courts prefer fee simple estates. If you don’t have any heirs. b. iv. If a mine was open when donor is alive. iii.

Baker v. Court interprets ambiguous grants to mean the largest estate possible. but only if all parties can agree. Grandchildren have no sentimental attachment. If she had said “and then go back to my heirs. she probably didn’t intend a life estate. This is a forfeiture restraint. 2. Brown (p 221) Facts: Lide left her house to sister-in-law (White) in a handwritten will for White to live in and not sell. iv. Anna doesn’t have enough money to live on and wants to sell most of the farm. but also whether a sale is necessary for the best interests of all parties. which is allowed (p 228).Property Outline Fall 2003 2. clock begins again at LT’s death. Court interprets ambiguous grants to mean the largest estate possible. White alleges she was vested with a fee simple title. and your promise is enforceable under contract remedies. then back to my heirs). or to his grandchildren if Anna had no children. Lide left personal property to niece Sandra (White’s daughter). vested remainder). 3. the doubt is resolved in favor of an absolute estate. He left his farm as life estate to his current wife (Anna). Notes: 1. Issue: Analysis: Dissent: Rule: a.” this would imply an intent for a life estate. If White had a life estate. There is not enough evidence of intent to pass life estate to overcome the law’s strong presumption against it. Weedon (p 230) Facts: Weedon had 3 grandchildren from a previous marriage. Deterioration and waste of the property is not the exclusive and ultimate test to be used in deciding whether to sell land affected by a future interest. White v. 16 . just greedy. and live off of the interest. it will be worth a lot more. since Jessie didn’t provide a person to get the remainder. to Evelyn as long as she doesn’t sell it. for 5 years. Why? We want property to be flexible and used in the highest and best way possible. If LT dies before statute of limitations runs. Issue: Analysis: Rule: a. Court will discard provision that property will not be sold because the law resists absolute restraints on alienation. Lide did not provide a person who would inherit the remainder of the property after White’s life estate. Did Lide leave a life estate to White or fee simple title? If the expression of the will is doubtful. then to her children upon her death. b. c. Use life expectancy tables. Valuation of Life Estate and Remainder (p 229) 1. Law is hostile to absolute disabling restraints on alienability 1. heirs would have remainder (in fact. 3. Perhaps part of the land can be sold now. The limitation that the house was “not to be sold” indicates that Lide intend to give a life estate. But. Remainder is value at end of life tenancy minus life estate value. You can’t just strike this part of the will. Sale of the land isn’t in the best interest of all parties – it would result in great financial loss to the remaindermen. and statute runs. iii. figure out how much per year of the interest goes to the life tenant. Would sale of the land and investment of the proceeds be in the best interests of both the life tenant (Anna) and the remaindermen (three grandchildren)? Grandchildren don’t want to sell it because in 4 years.” or “to this other person afterwards. Why? Makes the economy more efficient because people will use larger estates to a greater extent. AP gets life estate for original life estate owner’s life. so Weedon’s grandchildren are the remaindermen. Anna has no kids. Promissory restraint – you get it if you promise not to transfer it. Bad decision. 2. 2. Previously they worked out selling to govt an easement for a highway. multiply by years of life expectancy. White wouldn’t be able to leave house to her heirs when she dies because she only has a life estate. If you enter against a life estate owner. Anything that does not restrict sale absolutely is ok (not be sold to corporation. invest the proceeds. Notes: 1.

3. Words used to create: A) “So long as. Modern: most states allow inter vivos transfer ii. Henry. 2. Words used to create: A) Must indicate that 1) the grant is subject to a condition: “provided that.” “however. then to B. A reversion can only pass by inheritance. Can use same language as FSD and FSSCS. grantor has a reversion (future interest) 1. 2. After Hutton’s death. 3 types: Fee simple determinable. 3. Traditional: you can’t transfer reversion by will or inter vivos transfer. iii.” “revert to grantor” 4. S/L for AP starts to run from the time of creation. A) CA: there is no FSD. but if property used for x. released any possibility of reverter or right of entry to school board. Grantor gets right of entry (power of termination) – the future interest retained by the transferor to divest a FSSCS when the event happens. He would be unable to transfer ownership to the Mahrenholzes. fee simple subject to executory limitation.” “on the condition that” AND 2) the grantor may reenter the property and terminate the estate.” “while. and convey forever as long as the condition is met.” They transferred the whole land and the interest in the school land to Jacqmains. A reversion isn’t actual property. use. 2. Marenholz v. If it gave FSSCS. A) Transferee (who gets the future interest) has an executory interest. School started storing stuff on the land instead of holding classes.” “until. 5. usually very long or there is no limit. Transferee can be named or can be by operation of law (grantor or his heirs). Fee simple determinable (FSD) 1. Courts prefer FSSCS and will construe ambiguous language to mean FSSCS. 2) If the language of the deed gave FSD. b. County Board of School Trustees (p 242) Facts: Huttons gave piece of land to School Board “to be used for school purposes only. and also gave all interest in school land to Mahrenholzes. General rule: A holder of a fee simple defeasible is subject to a divestment. Here it was a fee simple determinable. Court presumes largest possible estate for the grantee. Henry could become owner of the property only if he rentered the property. 1) Could Mahrenholzes have acquired any interest in the school land from Jacqmain? 2) Did the language of the deed give FSSCS or FSD? 1) You can’t transfer reversion by will or inter vivos gift but only by inheritance. c. A) Laches bars relief when the grantor’s delay causes injury or disadvantage. Reversion isn’t actually property. 5. 3. Henry would have become owner of the property automatically when condition was broken. Example: To A. b. Purpose is to prevent property from being put to a certain use. Estate passes to a third party instead of the grantor. Defeasible Estates (p 240) i.Property Outline Fall 2003 E. or ensure that it is only used for a particular purpose. but shifts interest to a third party. a. who later transferred both to Mahrenholzes. Grantor gets a possibility of reverter: the grantor keeps an interest that vests automatically when the event happens. If you use words to pass this fee. 2. fee simple subject to a condition subsequent. Law doesn’t like automatic forfeiture. He would then be able to transfer all interest in the land to the Mahrenholzes. Fee simple subject to a condition subsequent (FSSCS) 1. Fee simple subject to executory limitations (p 285) 1. Always followed by a future interest. their only heir. Fee simple that is divested automatically when a particular event happens. 4. you are passing FSSCS. Issue: Analysis: 17 . a. but may still hold.” “during. S/L for AP starts to run when the condition happens and is usually short. Doesn’t automatically end when the event happens but may be divested at the grantor’s election when the event happens. In FSD and FSSCS.

c. At common law. d. When transferor reenters. Courts will enforce it if H’s intent was to support her while unmarried. party with right of reentry doesn’t get anything. a. a. Remainders never follow fee simple. IV. Vested remainder – remainder not subject to a condition precedent that is given to a third person who is expressly determined. This is using property to control behavior (law even more hostile to this invasion of privacy). Reversion – the right to future possession by the transferor a. then to Living Desert Reserve. b. Right of Entry – The transferor’s interest following a fee simple subject to a condition subsequent. reversions are transferable by will. Indefeasibly vested remainder – certain to become possessory by transferee or his heirs. It is a conveyance of whatever. This is kind of what Henry did in transfer to Mahrenholzes. Future interests do not entitle the holder to possession but may become possessory in the future B. reversion becomes divested from the grantor. Transferor must reenter after event happens to vest. then to B. Ex: O conveys blackacre “to A for life. Automatically vests when specified event happens b. courts don’t enforce. To A for life then to B and his heirs if B survives A A) If B out lives A. iii. which automatically gives ownership to grantor or his heirs when condition is broken. Grantor or heirs can only transfer ownership to a third party after property has reverted to them if FSD.” O has a reversion. and inter vivos transfer. reversion will become possessory in the grantor. but if H intended the restriction to keep her from getting married again. v. ii. If it does not become possessory. in this case. Reversion to transferor if no on is specified to get the estate after the prior estate ends. 18 . If not. Leave to my wife until she marries again.Property Outline Fall 2003 Rule: The phrase “to be used for …only” indicates the granting of fee simple determinable followed by a possibility of reverter. the govt itself. ii. b. Future Interests in Transferees (p 272) i. Defeasible Life Estates & the Marriage issue a. Analysis: City is trying to get around the condition in the FSSCS. You are not saying what you have. C. inheritance. iv. so brought an action for condemnation (government taking land for fair market value). Not mere expectancies but presently existing property interests. B) If A outlives B. so city has violated the condition and Living Desert has a right to reenter. In a condemnation. 1. Note: To quitclaim is to give whatever you have. a. 1. A) Ex: To A for life. The action to build the golf course (and not use it as a reserve) is imminent. Interest left over for the owner when he carves out a lesser estate without specifying a third party remainderman. or if FSSCS. you have. City wanted to make a golf course. it is divested. Future interests i. if any. Palm Springs v Living Desert Reserve (p 265) Facts: Deed land to city as long as used as a reserve. a. c. but under common law not transferable by will or inter vivos (although modern trend is to allow). Future Interests (p 269) A. Future Interests in the Transferor (p 270) i. Inheritable. Possibility of Reverter – The transferor’s interest following a fee simple determinable. only the party holding the FSSCS gets paid. he terminates the fee simple. Remainders – future interest in a transferee which can become possessory only upon the expiration of a prior possessory interest created by the same instrument. Mahrenholz is about controlling how property is used. only after reentry. The marriage restrictions tend not to be enforced.

heirs of a living person). (Condition subsequent – condition that ends the interest) A) Ex: To A for life. it is a condition precedent and therefore a conditional remainder (“but if…then to”). vested remainder is preferred. there is a possibility his interest will never become possessory. the remainder is vested (“…. If B died without issue. his interest. remainder to B’s children and their heirs. then to B and her heirs if B survives A. the existing children have a vested remainder subject to partial divestment. then to C and her heirs. will be completely divested and go to C. 2. then to B for life. A) Ex: To A for life. will. b. 5. 3. Courts prefer vested remainder and condition subsequent over contingent remainder and condition precedent. 6. then to B and his heirs. C) To distinguish from contingent remainders: If condition is contained within the granting clause. Court will construe ambiguous language as the former. A) May expire: To A for life. then to A’s eldest son. but if B dies without issue. I) If unclear. will in all JX now and by inter vivos transfer in most JX. then to B and his heirs. Although transferee’s interest will become possessory if prior estate ended today.One party subject to condition precedent. If first future interest is a contingent remainder in fee simple. then to B and his heirs. B) May be divested by I) Executory interest: To A for life. inter vivos.then if…”). (transferor can reenter if condition subsequent occurs) III) Power of appointment: To A for life. but if A does not appoint any. Subject to RAP. then to B and B’s heirs if B survives A. Subject to a condition precedent – a condition that must be met before remainder becomes vested. ii. 7. A) Can become vested 5. Alternative contingent remainders . and the other to the opposite condition precedent. 4. A) Ex: To A for life. Vested remainder subject to divestment (subject to complete disfeasance) – vested remainder subject to a condition subsequent. If the granting clause stands alone and a subsequent clause takes it away. but transferable by inheritance. A) To A for life. 1. While A and B are alive. remainder to A as A appoints. then to C. Contingent remainder – remainder not yet vested because 1) given to a third party not yet ascertainable OR 2) made contingent on some event other than the natural termination of the prior estate (subject to a condition precedent). c. If B already has one or more children and may have more. Executory Interests – Future interest in a transferee that cuts short (divests) a prior interest: either 1) another transferee’s interest (shifting executory interest) or 2) the transferor’s interest (springing executory interest) 19 . II) Right of entry: To A for life. Transferable by inheritance. Vested remainder subject to partial divestment (subject to open) – there are parties whose interest is certain to become possessory. Transferee not yet ascertainable – either because not born or will be determined by future events (for instance. B has vested remainder subject to divestment b/c he may die before his interest become possessory. the second future interest in a transferee will be a divesting executory interest. 3. but there may be other parties not yet ascertained who will share the interest. If first future interest is a vested remainder in fee simple. Not transferable under common law. the second future interest in a transferee will also be a contingent remainder. so long as always used for a church. Destroyed if doesn’t vest by the end of the previous estate. although vested now. and if B doesn’t survive A.Property Outline Fall 2003 2. 4.

E. One of the children. then principal to A’s children who survive A. D. c. it is a fee simple subject to an executory limitation. 335-338) i. No interest is good unless it must vest. Wait-and-See for Common Law Perpetuities Period 1. Doesn’t apply when possessory estate and future interest is in charitable organizations. Wait-and-See for 90 years: Uniform Statutory Rule Against Perpetuities (USRAP) 1. B has vested remainder in fee simple subject to divestment by the executory interest in C and D if C and D outlive A. O has an equitable reversion and gets property back if none of A’s children survive A ii.” 1. If any child dies. had a life estate with the remainder for their nine children. b. Gertrude. 2. 4. reversionary interests c. Swanson v. 2. 2. Trustee is the “legal owner” and has duties spelled out in the trust instrument. 1. just gives money to lawyers who could figure out a way around it. C and D. ii. (p 284) 1. then to B and her heirs. This has overshadowed RAP. The executory interest doesn’t. 1. Swanson (p 288) Facts: Swanson died testate. Peggy (P) in his will. then to such surviving children and their heirs. Tax laws provide the incentive and means to limit long term control of dead hand. if at all. Trusts – trusts combined legal interests (law ct – rigid rules) and beneficial interests (equity ct – questions of justice) a. cut short the prior estate. 3. one to each child or for the then surviving issue of each deceased child. it passes to nine children. the more it was taxed. Fee simple subject to an executory limitation. not later than 21 years after some life in being (validating life). 326-35) i. Beneficiary – the “equitable owner” and has superior rights. divided equally. D is the life in being. Ex: O conveys “to X in trust to pay income to A for life. their share goes to his/her surviving children. Applies to contingent remainders (subject to a condition precedent) and executory interests. Wanted to limit the control of the dead hand. Trust 1: allows Gertrude to designate other beneficiaries of the trust. Holds “equitable interests” or “interests enforceable in equity” c. The more control you exercised. 1. Trust 2:Remaining assets divided equally into 9 shares. Rule Against Perpetuities (pp 302-306. a. It doesn’t discourage wealth being controlled for a long time.Property Outline Fall 2003 a. Often just passed through strawmen to get around it.” A is alive and has two children. thereby passing to his wife after his death under his will? Issue: 20 . Common Law Rule (p 302) a. but if A is survived at his death by any children. Wait and see if it vests for 90 years after interest is created. Trusts (pp 287-293. A’s children have an equitable contingent remainder. b. Contingent interest is valid if it actually vests within the common law period. If fee simple determinable is followed by an interest in a third party rather than a grantor. Does not apply to vested remainders. He created two trusts in which his wife. in this case. b. b. 3. Was Bennie’s interest in his father’s trust a vested remainder. Ex: to D for life. Trustee can respond to changing circumstances without having to go to court for permission. Wait-and-See Doctrine (p 326) – many JX stopped using RAP or modified.Person who is bound by law to carry out the trust in the interest of the beneficiaries. Ex: “To A for life. It is a classic “rule” rather than a standard. then to her first child that reaches 21. Trustee . Held to high standard of care. Executory interests are treated as contingent interests because they are subject to a condition precedent and do not vest until they become possessory. A has an equitable life estate. 1. died childless and left all his property to his wife. and if not.

Each. B) Also required for TIC. Together are regarded as a single owner. A) But. Survivorship extinguishes the decedent’s interest rather than passing his interest to the survivor. his remainder can pass to a person designated under his will if his remainder was vested. c. “generation-skipping transfer tax” due at end of life estate if passes to next generation and levied at highest rate. amt up to $1 million ($2 mil for married couples) is exempt. May be conveyed separately by deed or will and at different times. in theory. Four “unities” must be present 1. and no condition subsequent that could bring about defeasance occurred before the end of the life estate. 1. 2. Right of survivorship – cannot be passed by will or inheritance. State taxes usu based on JT’s share. 3. Interests may be unequal 2. Interest: must have equal undivided shares and identical interests measured by duration. Time: each must acquire interest at the same time 2. 21 . A child dying before Gertrude but leaving children who survived could bring total defeasance of the vested remainder. Law has a preference to construe language of “surviving” to mean surviving the testator 3. Dynasty Trusts (pp 335-338) a. joint tenancy. tenancy by the entirety. so Bennie’s interest is fully vested. 2.Property Outline Fall 2003 Analysis: Trust 1: There are immediately identifiable persons who would take if the life estate ended = vested remainder interest. If a beneficiary of a trust dies before the end of a life estate. A) One can voluntarily give exclusive possession to others. Concurrent Estates – Common Law Co-ownership (p 339) A. 3) no language in will plainly shows different intent. Concurrent estates – two or more people have present possessory and undivided interests in the whole of the same property: Tenancy in common. Survivorship is automatic and not something you can change with your will. iii. Each must have a right to possession of the whole. Joint tenancy a. So. V. No right of survivorship ii. 2. Tenancy in common a. Rule: a. b. At first. There are two conditions subsequent that could bring about total defeasance but neither happened. Dynasty trusts – 1. Title: must acquire title by the same instrument or by joint AP A) Never can arise from inheritance w/o will or other act of law 3. 4. Therefore. Law has preference for condition subsequent rather than condition precedent because wants the contingency to be destroyed and the interest to vest as soon as possible. 1. Bennie’s one ninth interest passes to his wife under his will because 1) his remainder was vested. i. 2) no condition subsequent occurred before life estate ended. Gertrude had a life estate and was a trustee. Trust 2: Immediately identifiable beneficiaries if the life estate ended. b. successive life estates could endure for as long as RAP allowed tax-free because no estate tax levied at end of life estate. Now. Separate but undivided interests in whole of the property. Notes: 1. Possession: each must have a right to possess the whole. owns the undivided whole of the property. can create $ 1 million trusts and successive life estates tax free: tax-exempt dynasty trust. 3. no probate. but this didn’t happen. Court takes “surviving” children to be a condition subsequent rather than a condition precedent because of law’s strong preference. Federally taxed according to portion of property due to decedent’s consideration.

there is no interest to seize. & Mrs. iii. c. why can’t you destroy it. severing JT and creating TIC. It is artificial to require a joint tenant to convey interest to a third party (strawman) who will convey it back to the joint tenant in order to terminate joint tenancy. they are still joint tenants with respect to each other. Right to survivorship 1. Survivorship avoids probate b/c decedent’s interest is terminated. Law presumes tenancy in common absent clear contrary indication 2. that party becomes a tenant in common with respect to the other tenants. Seems like policy is no different. In some JX.Property Outline Fall 2003 d. e. If one JT transfers interest to a third party. Bank accounts are different. d. survivorship at death of one. Notes: 1. vi. CA statute can be interpreted either way: A) For Mrs. Joint Bank Accounts (p 356) a. Creditor can seize JT’s property during lifetime. Riddle – if legislature intended statute to apply to destroying JT. Any transfer of interest destroys the joint tenancy and can be so destroyed without the consent of all JTs. there must be an express provision of survivorship in order for JT to be created 1. True joint tenancy – one half to each during life. Unlike JT. would have said it did. If one JT conveys to another JT. so she could transfer her interest by her will. Before her death. but if waits until after death. Avoidance of probate (p 343) a. joint tenancy is severed only for the share conveyed. No probate. so why not be able to destroy? One tenant may unilaterally sever the joint tenancy without the use of an intermediary device (strawman). 2. iv. 1. marital deduction on estate taxes. Owner can convey to self and another in JT w/o strawman. b. Tenancy by the entirety (p 341) a. Considered to hold as one person under the law e. Issue: Analysis: Rule: a. can only be conveyed to a third party jointly and with consent of both. Mrs. Riddle v. Riddle owned property in joint tenancy. Probate – judicial supervision of decedent’s property 1. CA statute already allows JT to be created w/o strawman. Can a joint tenant unilaterally terminate JT by conveying her interest to herself? Mrs. Allowed only in ~ half the states. Like JT (requires 4 unities) but also requires marriage. They are “joint” for the purposes of the bank. 2. 22 . b. If legislature thought it was different. 1. Harmon (p 345) Facts: Mr. Common law presumes tenancy by the entirety in conveyances to H & W. Probate is costly and time consuming. but if there are two or more other Ts. Depends on intent 1. 2. Payable on death – no rights during life but survivorship upon death of the donor 3. Divorce terminates TE. not for any of the other shares. b. could have explained. Riddle conveyed her interest in joint tenancy to herself in order to terminate the joint tenancy and create a tenancy in common. Some JX have no JT. v. Riddle – if you can create a JT w/o strawman. Can be created only by husband and wife (HI allows others). Convenience – just for bills as needed during life. Riddle clearly intended to terminate the tenancy. 1. 2. not for survivorship under the law. B) Against Mrs.

3. How much should be spent on repairs is too uncertain. Would a partition in kind create “material injury” to parties? Partition by sale only when: 1) physical attributes of land are such that physical partition is impracticable: Here. The interests of all parties must be considered. The possible decline in market value due to Helen’s business and the fact that a road would need to be rerouted is not enough to overcome Helen’s interests. not cost. Delfinos want a partition by sale because the land can be made into a subdivision and is very valuable. Rents and profits – Cotenant collecting rent must account to all other cotenants. and not fair market value (absent ouster). Issue: Analysis: Rule: 1. action for accounting. B) When possession is shared. the tendency is to sell and divide proceeds B) Courts don’t generally take into consideration the advantage of one co-tenant acquiring the part of the property that may be next to other property owned by that party. 2. 1. Relations among Concurrent Owners i. D lives on and operates business on one acre and has ~30%. Helen’s business is her livelihood. A) May deduct cost of repairs from rent in accounting proceeding. Repairs – No affirmative right to contribution. 5. but absent agreement. 4. Notes: A) Now. For property owned by tenants in common. Taxes. Sharing the Benefits and Burdens of Co-ownership (p 369) a. Partition in kind – physical division of property. and the decision is made in best interest of all the parties. Helen wants a partition in kind (physically divided). Partition by sale – property sold and proceeds divided. mortgage payments – Cotenant paying more than share generally has a right to contribution from other cotenants. maintenance. property rules apply: (p 379) 1. A) Accounting: equitable proceeding for division of costs and proceeds. b. 2. A) Improver’s interest should be protected if won’t diminish other interests: can get the portion of the property improved in partition in kind if fair division. improvements may seek to recover some or all of costs through partition action. B) These remedies only look at value of improvements. a number of JX allow direct action for contribution. iii. Improvements – No right to contributions and no credit in accounting and partition actions. 23 . Rules governing co-ownership should equally distribute benefits and burdens. Partition (p 359) a. Partition action can be brought if can’t agree in TIC and JT. undivided interest. 2) the interests of the parties would be better promoted by partition by sale: Here. Concurrent owners can enter into K governing use and maintenance. OR can get amount improvement increased value in partition by sale (owelty). Each tenant is entitled to possession of the whole. ii. The city would probably approve the subdivision plan even if Helen kept her plot and continued her business. the land only needs to be divided into two parts. Vealencis (p 359) Facts: Delfinos (P) and Vealencis (D) are tenants in common. courts favor a partition in kind (physical partition) over a partition by sale. A) CoT paying more can also get credit in accounting and partition actions. Delfino v. This is based on receipts. Cotenant paying taxes.Property Outline Fall 2003 B. so often come into conflict a. action for contribution. Communal ownership encourages inefficient use – Posner b. not tenancy by the entirety.

Is Spiller liable to the other co-tenant for rent on building they own in common that he has full possessory use of? Adverse possession requires finding that possessing cotenant asserted complete ownership. esp. 2. A joint tenant can lease property to another without the consent of the other joint tenant. & Mrs. this would have been ouster. S could have also sued for accounting or claim an ouster. An occupying cotenant is not liable to other cotenants for rent unless he has 1) agreed to pay rent. that T is compelled to act in benefit of all cotenants d. occupying cotenant is liable to other cotenants for rent when occupier refuses demand of other cotenants to use and enjoy the land. S. Other co-T have attempted to enter and use the property and he has refused them (ouster). Sampson is in exclusive possession of the leased land. May be familial relationship of trust that requires them to act as fiduciaries 2. Fiduciary duties – generally.Property Outline Fall 2003 b. so Mrs. In general. OR 3) the other cotenants have attempted to enter and use the property and he has refused them (ouster). Rule: 1. Swartzbaugh. Further. Spiller didn’t do either. C) Mrs. and the underlying fee ownership would stay with Swartzbaughs. Mackereth’s letter did not demand equal use and enjoyment of the premises and rather demanded Spiller to vacate or pay rent. c. Begun the statute of limitations for AP. 24 . it may go unused. the lease continues w/ her as lessor. S assumed his interest. if inherited. but that JT can lease no more than his undivided interest. lessees cannot assert AP against lessors. Normally. Notes: If Mackereth had tried to use the property or had asked for the keys and Spiller had refused. She still has possessory rights to the whole of the property. Swartzbaugh v. D) When Mr. Agreed to pay rent. Sampson (p 373) Facts: Issue: Analysis: Mr. B) May be stronger case for compensation in residential property. then she is only partitioning the leasehold. Notes: A) Sampson has no more rights to land than Mr. If she brings a partition against Sampson. Spiller also put new locks on the doors. Spiller started using it as a warehouse. Not having to pay rent provides an incentive to use it. precluding AP. but cts treat them as such in certain situations. There can be no denial of right to enter unless there is a demand or attempt to enter. there is no evidence Spiller’s locks were intended to prevent other cotenants from entering or that other cotenants asked for a key. so Sampson couldn’t keep Mrs. 1. Spiller acknowledged cotenancy relationship by filing bill for partition. Under minority rule you can’t agree. S off the land if she wanted to be on it. OR 3. A) Some JX require rent even in absence of ouster but majority doesn’t. and she sued to cancel lease. b. After lessee left. Each joint tenant has a right to possession of the whole of the land. Can one joint tenant who has not joined in the lease executed by her cotenant maintain and action to cancel the lease? The joint tenant out of possession can’t maintain any action against lessee that she could not maintain against the other joint tenant. If one cotenant asserts superior rights. Mrs. II) Cost of majority rule is litigation over what constitutes ouster. Spiller v. cotenants are not fiduciaries w/ respect to each other. S could have brought a partition action. The land was part of land owned jointly by Mr. 2) begun the statute of limitations for AP. S cannot cancel the lease to Sampson. Mackereth (p 369) Facts: Issue: Analysis: Spiller (D) and Mackereth (P) owned building as TIC. I) Majority rule encourages better use of property. An occupying cotenant is not liable to other cotenants for rent unless he has: 1. Swartzbaugh (D) leased 4 acres of land to Sampson (D). B) Mrs. S died and Mrs. Rule: 1. Swartzbaugh (P) did not consent to the lease. Mackereth wrote letter demanding either half rent or to vacate half the building. possibly just for the 4 acres leased to Sampson.

although can be a factor in determining alimony or equitable division of marital assets. Middle ground: equitable distribution w/ presumption of equal distribution subject exceptions. although it is factor to be considered in equitable property division or alimony (but here. Compensatory payment for specific reasons rather than need or ability to pay. b. Property of spouses remains property of spouse w/ title. dependent on other’s ability to pay. 2. transferred.Property Outline Fall 2003 VI. But still expected that H protects and supports. Is an MBA marital property that is subject to division by the court in a marriage dissolution proceeding? Education is not “property” under the Act. It is personal to the holder and not inheritable. D) She may have been able to be reimbursed. 2. Issue: Analysis: Rule: 1. It has no open market value. other states followed 1. H owes W alimony b/c he owes her a duty of support. property excluded by valid agreement. Marital property can be: 1) all property acquired during marriage. or 2) property acquired through earnings of either spouse during marriage (like community property) 3. 25 . 1. Marital Interests (p 382) A. and owned nothing but clothes and ornaments b. Modern: Married Women’s Property Acts gave W autonomy over property. There are no marital assets. “Equitable division” of property at ct’s discretion – many statutes authorize all property to be divided equitably. Property is a bundle of rights. Professional goodwill (person’s reputation in the community) is a marital asset even in JX that don’t consider professional degree and enhanced earning capacity as marital asset. but this doesn’t necessarily come close to what she would have gotten from her investment. Lifelong obligation to pay alimony discarded – now support for limited time until spouse can be self-sufficient. Other JX have not found education to be marital property. conveyed. regardless of time and manner of acquisition. C) Wife can’t get alimony b/c she can support herself. 2. changes beginning in 1970 – CA got rid of fault divorce. others allow only marital property to be divided. d. She contributed 70% of income while he was in school. During Marriage (Fiction that H & W are one) a. Notes: A) Uniform Marriage Dissolution Act: Marital property is all property obtained during marriage except by gift. Then. It is a recognition of an achievement. but there is other property that can’t be transferred (eagle feathers). protected her property from H’s creditors. Termination of Marriage by Divorce (p 399) a. Traditional common law divorce: 1. or pledged. In Re Marriage of Graham (p 401) Facts: During 6-year marriage. ALI: Principals of the Law of Family Dissolution 1. W has domestic responsibilities ii. No recognition of shared assets. 2. She is arguing that business degree is a marital asset she is entitled to a share of. c. Education can’t be sold. Traditional common law: W under H’s protection. some have presumption of equal division. Common Law Marital Property System (p 383) i. not all of which need to exist. no other property to divide). bequest or anything in exchange for prior property. Tenancy by the entirety becomes TIC 3. property acquired after legal separation.. A) Some states require equal division. etc. B) Ct says educational degree isn’t property b/c can’t be transferred. Education is not marital property and cannot be divided. inheritance. wife supported husband while he got his BA and MBA. although may be denied if she is at fault 4.

2. and the supporting spouse has contributed just like a business. Upon divorce. rather than the nature of the career that should determine if it is marital property. Dower states allow choice. Only applies to probate property. d. property has “stepped up” tax basis. Elkus (p 408) Facts: Issue: Analysis: Mrs. Replaced dower and curtesy in most common law states. and to the career or career potential of the other spouse. c.” b. 1. although she was already somewhat successful at time of marriage. Tax benefit – after death of one. c. Community Property System (p 419) i. iii. wage earner and homemaker. some states divide equally. B. Rule: 1. parent. Takes into account intangible contributions. b. Double counting earning potential – if spouse gets some of future earning potential. It is the nature and extent of the contributions by the spouse seeking equitable distribution. property can be gifted away before death. what happens when the next marriage that ends in divorce? 3. can convey interest in community property w/o consent of other except if conveying to the other spouse. All non community property is separate property and strong presumption that all property is community property. and not to property owned as joint tenants or life insurance. Elkus v. Considered a “support share. wage earner.” B) Court is broadly interpreting the statute as a whole to be fair in dividing up all things of value.Property Outline Fall 2003 e. Attaches at moment of marriage but doesn’t become possessory until H’s death. Husband coached her and took care of kids. f. real and personal. allegedly sacrificing his own singing and teaching career. Surviving spouse only pays taxes on difference btwn purchase price and worth at death. Husband is entitled to share of the increase attributable to his efforts and contributions. although most allow now. and AK has elective community property. e. Termination of Marriage by Death of One Spouse (p 416) a. no survivorship. plus WI recently. General Rule: earnings of each spouse during marriage are owned equally in undivided shares. a. Elkus/O’Brian (NY) rule: Future income is property. which is a somewhat unconventional way of reading a statute. others allow equitable distribution. 8 states have had community property for a long time (including CA). 2. The purpose is to prevent inequities – marriage is an economic partnership to which both parties contribute. although half usu goes to spouse if no will. Elkus’s celebrity and career during the marriage marital property? Things acquired during marriage are marital property even though they may fall outside the scope of traditional property concepts. 1. No right of partition d. Neither spouse. Dower – automatic gift to W from H at marriage of 1/3 of all land seised during marriage and inheritable by their issue. acting alone. or homemaker. the law is encouraging divorce. Prenuptial agreements used to be illegal. Notes: A) The NY statute was different from statute in Graham: “including joint efforts or expenditures and contributions and services as a spouse. It was felt that if the law enforces prenuptial agreements. as spouse. Some states allow community property with survivorship. 26 . This interest attaches when they have children. parent. gift are separate. c. Is the increase in Mrs. Modern elective share – surviving spouse has elective share in all deceased spouse’s property. 3. Inheritance. Community property states don’t recognize dower. b. Surviving spouse can renounce will and take share. Basic assumption that H & W contribute equally to the success of the marriage. curtesy or tenancy by the entirety. ii. Upon death. But. Curtesy – Widower entitled to life estate in all W’s property when she dies. Community Property compared with Concurrent Interests a. Elkus is an opera singer whose career took off during the marriage.

many same-sex couples have children.or opposite-sex couple sharing for significant time primary residence and life together as a couple. law of his/her domicile at death governs. ii. and law affirms their right to adopt children. Now only in 11 states. VII. contract may be implied by conduct. Principal purpose is that excluding same-sex couples from legal benefits of marriage is “furthering link between procreation and child rearing. Manager is a sort of fiduciary and must act in good faith. a. 1. Management of Community Property a. Some JX (CA): pro rata apportionment – community property payments “buy in” a pro rata portion. or leaseholds. b. At death of a spouse. Landlord-Tenant Law (p 445) A. Contract law brought in when they don’t hold themselves out as H&W. iii. Character of property depends on the state in which it was acquired. are nonfreehold estates. State (p 428) Facts: Issue: Analysis: Three same-sex couples sued state & city for denial of right to benefits given to married couples. When any leasehold is created. Notes: The framers of VT’s constitution probably didn’t think about same-sex marriage. Some JX: “time of vesting” rule – when paid off 3. a. Migrating Couples a. and 2) government’s purpose in classification including some and excluding others. b. in most. and protects their interests when such couples terminate their relationships. VT is constitutionally required to extend the same benefits and protections to same-sex couples that flow from marriage under VT law. allowing implied contracts. but spirit of their desire to include should be upheld. Baker v. When property is acquired before marriage but part of purchase price paid after marriage with community funds 1. and many don’t have children – the law extends benefits of marriage to many people with no connection to stated governmental goal. Same. Marvin (p427). Rule: a. Generally – tenancies. Usu. Can be any length. a future interest necessarily arises. contract must be express. b. Property bought with $ earned during marriage takes on character of the earnings.Property Outline Fall 2003 iii. 1. must 1) define “part of community” disadvantaged. Mixing Community Property with Separate Property a. iv. Once property is characterized. 27 . CA: property from a common law state is “quasi community property” C.” But. ii. Some JX: “inception of right” rule – when acquired 2. c. In some JX. 2. although not necessarily good judgment. many opposite-sex couples marry for reasons unrelated to procreation. Term must be for a fixed period but can be terminated early by some event or condition. 1. Term of years – estate that lasts for some fixed period of time or for a period computable by a formula that results in fixing calendar dates for beginning and ending. but some states limit b. v. Leasehold Estates i. May the state of VT exclude same-sex couples from the benefits and protections that its laws provide to opposite-sex married couples? When a statute is challenged under Equal Benefits clause of VT Constitution. here the law excludes same-sex couples. Common law marriage – cohabitating partners that manifest intent to be H& W and hold themselves out as H&W. either H or W acting alone has management rights (before just H). But no inheritance rights. Marvin v. Also. a. Community property can only be conveyed to third party as an undivided whole. ALI & domestic partnership: Legal rights arise from conduct with respect to each other. Rights of Domestic Partners (p 426) i. doesn’t change when couple moves unless both consent.

2. If rent is reserved and paid periodically. never more than one year. a. B. Something called a lease may not be one. Contract: Do you construe obligations under the lease as a property arrangement or a contract? a. Length can be computed by time between rent in original lease or length of original term or period. v. Under common law. a periodic tenancy arises by implication. Periodic tenancy – lease for a period of some fixed duration that continues for succeeding periods until either L or T gives notice of termination. c. allow oral leases for < 1 yr c. Both parties must have ability to terminate at will or else it is a term of years or a periodic T. automatically extended for another period. If no notice of termination. into US. a. a. b. iii. just that there isn’t a monopoly and that competition forces sellers to have terms that protect purchasers. A lease meets the standard definition of a contract (modern) – has promises/covenants 1. Usually subject to same terms as original lease unless new agreement or terms are inconsistent with new situation. 1. Statute of Frauds (p 458) a. This is what makes it an estate. 6 mos notice req’d for termination of PT where period is a year or longer. but form leases can put T at a disadvantage b/c less bargaining power. although may terminate residential lease if T dies b/c residential leases are “personal. Tenancy at will – tenancy or no fixed period that endure so long as both L and T desire. 2. Reform property law of L-T into contract law. a.” e. but never more than one year. d. b. 454) – arises when T remains in possession (holds over) after termination of tenancy. Words used to create: “to T year by year” iv. The Lease (p 456) i. In most JX. Ends at death of one of L or T. length equal to the period if period is less than a year. iv. L has two options: 1) evict and get damages. 1. a. c. d. Oral lease + payment = periodic tenancy not subject to statute of frauds. 2. Ends automatically. b. Licenses & easements don’t have possessory rights in the same way – can’t exclude others b. notice must terminate tenancy on the final day of a period. but were still personal property: chattels real. The law was very pro-landlord. not to exceed 6 mos. or 2) consent (express or implied) to creation of new tenancy “holdover. Death of L or T has no effect. ii. holdover gives rise to periodic tenancy 1. Modern statutes require some length of notice to terminate (30 days or length equal to interval btwn rent payments). Words used to create: “to T for one year” iii. 1. Every state has one. Tenancy at sufferance: Holdovers (p 451. b. Property arrangements that came out of this system persisted through industrial revolution. Economic argument: doesn’t matter whether or not T can haggle. T can exclude L 1. Now. Generally: the transfer of a right of exclusive possession of land. A lease also concerns an estate in land (traditional) – transfers possessory interest in land. Death of L or T has no effect e.” b. c. Conveyance of interest in land vs. Most: leases for > 1 yr must be in writing. and something not called a lease may be one. no notice of termination required. and well into the 20th century.Property Outline Fall 2003 c. some states have shortened length of notice and allow month-to-month to be terminated any time after 30 days notice. Form leases – would be costly to bargain individually. 28 . in most JX. Restatement: results in periodic tenancy measured by the way rent is computed. Traditionally: leaseholds classified as an interest in land.

When T subleases: 1. Assignee only may sue L for the breach. 2. 4. T has a reversion for the remainder of the term 2. 29 . sex. Traditional formalistic view: assignment is when lessee transfers all of his interest – possession for the whole term. L and sublessee: no privity of estate. Thus A is liable for rent to L even if he didn’t promise to pay. 2. Less common view: Intention of parties – Actual words are not conclusive but may be persuasive. A) But if T voluntarily gives up the original lease. 4. b. 5. he is liable for covenants whose burdens run with the land. transferee is still entitled to possession. In this case. A and T: privity of contract IF A makes a promise to T. T impliedly assigns his privity of contract right to sue L for L’s breach of covenants whose burdens run with the land. in majority. he is in privity of contract with T. c. B) However. If power of termination or right of reentry is allowed for breach of obligation. Sublease when transfers anything less than whole term so that lessee has a reversion. L can release T from privity of contract and get contractual rights against assignee – this is a novation. L is a third party beneficiary and therefore in privity of contract with transferee. b. Partial assignment of part of premises allowed under an assignment and is not a reversion (majority view) 2. ii. L generally owns property in fee simple. When T assigns: 1.Property Outline Fall 2003 C. Selection of Tenants (p 460) i. You don’t have to rent any property you have if you don’t want to. L can sue transferee who has promised to pay rent or perform obligations under the lease even if transferee has transferred. 3. and T is only secondarily liable. A) Must allow reasonable accommodations for people with disabilities D. the sublessee becomes in privity of estate with L. salesman. L and T are in privity of estate and privity of contract when there is no assignee or sublessee. religion. disability. T can sue transferee even if the he transfers his interest to someone else. A) Privity of contract liability remains even if A assigns to someone else. A is primarily liable. federal (& state) law controls how you can’t pick and choose in sale and rent. it can still be an assignment – but minority holds that it makes it a sublease. Fair Housing Act 1. L and T: privity of contract and estate. A) Neither L nor the sublessee can bring suit against the other. a. Subleases and Assignments (p 482) i. Tenant remains liable to L even if he assigns or subleases (privity of contract). 3. 3. familial status. A isn’t liable for covenants running with the land if he is no longer in possession because he assigned his interest to someone else. T can terminate the lease if covenant is breached and can then evict the transferee. national origin. and T remains liable. T and sublessee: privity of estate and contract 4. ii. d. Exceptions for individual landlords w/o much property as long as they don’t advertise or use a real estate broker. Sublease vs. 2. L and Assignee: privity of estate A) During the time assignee is in possession of the land. color. Privity of estate and privity of contract a. Can’t discriminate on basis of race. L and T: privity of contract A) T is the assignee’s surety. Assignment a. Choice of T is part of right to exclude. 1. But. When T subleases or assigns: 1. If transferee makes a promise to T. and generally can choose who to let use the property.

b. Covenants a. a transferee would get this benefit as well b/c it runs with the land. L can. the original T. and then Rogers could have sued Conditt. who agrees to uphold covenants of lease. 1. to extend lease b/c D wanted to. Conditt stopped paying rent. 1. 1. Issue: Analysis: Concl: Note: Ernst could have also sued Rogers. T “subleases. Ex. T3 defaults. A burden or benefit that touches or concerns the interest in land will run with the land. Covenants that run with the land automatically transfer when the estate is transferred. L leases to T for three yrs. Neither T nor T1 pay rent. C) T2 escapes because T2 is not in privity of estate with L and not in privity of K. iv. D) T3 is liable because he is in privity of estate. 2. then T2 assigns to T3. 2. transfers. Conditt (p 482) Facts: Ernst (P) leased land to Rogers: can’t assign or sublease w/o permission. the burden of the promise will not transfer because the burden doesn’t run with the leased land. T1 is no longer in privity of estate w/ L. L leases to T for term of 3 yrs.Property Outline Fall 2003 Privity of estate and K privity of K L T estate and K L estate maybe K T privity of K T1 SUBLEASE T1 ASSIGNMENT iii. Who is liable? A) T liable (not released from privity of K). 30 . This is a sublease because T is transferring less than complete interest. Burden touches or concerns if it relates specifically to the property and diminishes or limits promisor’s use or enjoyment of the land. Benefit touches and concerns if it relates to property and increases use or enjoyment of the land. must remove all improvements. Ernst v. If L assigns his reversion to L1. B) T1 liable because had promised to uphold covenants. Not all promises will run with the land as to the benefit and the burden. Rogers got permission from Ernst to transfer. for monthly rent and keeping up repairs. L cannot sue T1 for rent because T1 has never promised to uphold original obligations of lease. If L promises to not have a bakery next door. Rogers sold business to Conditt (D). and Conditt (assignee) is liable to lessor for rent and removal of the improvements b/c in privity of estate and contract with Ernst. Covenants that run with the land (such as rent) automatically transfer when the estate is transferred. b. and assigns” interest for one year to T1. Agreement was an assignment. T has a reversion interest. so in privity of K w/ L . Covenant to pay rent runs with the estate. 2. and promised personal liability. remained in possession until end of lease. Examples: a. L can recover from T. Ernst sues for back rent and improvement removal. Doesn’t matter that the agreement said “sublet. evict T1 for non payment of rent. Was the agreement between Rogers and Conditt a sublease or an assignment? Court holds that this is an assignment because Rogers gave up his interest for the whole term (formalistic test) and the parties’ intention was to assign (intention test). Then T1 assigns to T2.L is 3rd party beneficiary. L doesn’t have a direct remedy against T1. however. and didn’t remove improvements.” D is liable to Ernst for rent and for the improvements because he is in privity of estate (assignee is in privity of estate with L) and privity of contract (D promised he would uphold covenants of the original lease). T assigns entire interest to T1. v. Rogers and Conditt’s agreement “sublet” to Conditt for consideration and promise to fulfill requirements of Roger’s lease.

Restraints on withholding consent to assign for commercial property. 1. Based on K: implied covenant that neither will do anything that will destroy other’s right to enjoy fruits of the K. The lease required Pestana’s written consent for sublessee to assign interest. but Pestana refused unless rent was raised. (p 490) Facts: Pestana was assigned T’s interest in aircraft hangar space.Property Outline Fall 2003 vi. T not entitled to any profits realized. including assignment of sublease on the space. even in the absence of a provision stating that consent will not be unreasonably withheld. II) Against: Raises rent for everyone. Based on conveyance of property: common law doesn’t like restraints on alienation. Kendall v. Lessor’s interests are protected by the fact that the tenant remains liable as a surety if the assignee defaults. A duty is imposed to exercise discretion in good faith and in accordance with fair dealing. including a 25 year sublease with Bixler.” even in the absence of a provision stating that consent will not be unreasonably withheld (Kendall). Upheld for commercial leases entered into by sophisticated commercial entities operating at arms length. a. Kendall was in a better financial position than Bixler. Risk may be even higher in residential property. Reasonable alienation of commercial space is important in our increasingly urban society. consent may only be withheld where there is a commercially reasonable objection. L could terminate lease with T and sign lease with T1. Can a lessor unreasonably and arbitrarily withhold consent to an assignment if there is no provision in the lease prohibiting withholding consent unreasonably and arbitrarily? A growing minority allow lessor to withhold consent only when the lessor has a commercially reasonable objection. c. Both the policy against restraints on alienation (property law) and the implied contractual duty of good faith and fair dealing (K law) support the rule that where a commercial lease provides for an assignment only with lessor’s consent. Tenant who Defaults (p 500) i. Minority allow lessor to withhold consent only when the lessor has a “commercially reasonable objection. Self-help repossession leads to violence. Inc. 2) Contract: In every k. vii. B) Most courts won’t allow waiver by T b/c of differential in bargaining power. Kendall wanted to buy business from Bixler. C) Policy: I) For: There are judicial means for speedy repossession and we want to discourage people from taking the law into their own hands. there is an implied covenant that neither party shall do anything that will have the effect of destroying or injuring the right of the other to receive fruits of the k. doesn’t reduce risk of confrontation. A duty is imposed to exercise discretion in good faith and in accordance with fair dealing. 31 . Ernest Pestana. Modern trend – self-help eviction is never an option for L to dispossess a tenant who is in possession and has not abandoned or voluntarily surrendered the premises. 2. 1) Leasehold interest: Policy against restraints on alienation pertains to nature of leases. Common Law Rule: L may rightfully use self help to retake premises from T if 1) L is legally entitled to possession or lease term allows reentry AND 2) L’s means of reentry are peaceable. Termination and recapture clause – T must give notice before assigning or subleasing. A) In some JX. b. 2. only prohibited for residential property. summary proceedings are costly and take a while. Tenant in possession a. CA statute codifies minority position. Issue: Analysis: Concl: E. 1. Repossession by L 1.

Wiley’s reentry was forcible and wrongful as a matter of law. Abandonment – T vacates premises w/o justification. B) T cannot generally waive duty to mitigate. Court adopts modern trend that self-help is never available to dispossess a tenant who is in possession and has not abandoned or voluntarily surrendered the premises. T is liable for any amount L cannot recover. After 2 weeks of continued operation. Summary Proceedings (p 507) 1. and restaurant had health code violations. undermines ability to arbitrarily refuse to consent to assignment in those JX that allow b/c T could just abandon. which was long and costly 2. She was still using property and paying rent. May have to try to rent that unit first. encourages abandonment. Wiley (p 500) Facts: Wiley (D) leased commercial space. and difference if L must rent for less. Wiley gave Berg 2 weeks to change or would retake. A) Much quicker. w/o present intention to return.Property Outline Fall 2003 b. 2) re-let on T’s behalf. Mitigation of damages 1. and tenant assigned to Berg. extra costs incurred as a result. Want to discourage Ls from taking law into their own hands. particularly since legislature has provided judicial means for speedy repossession. ii. Berg made changes that allegedly affected structure w/o permission. II) T owes for whatever L wasn’t able to recover. I) If duty to mitigate. Traditional rule (majority): L may recover rent due under lease regardless of whether L had attempted to re-let the vacated premises. and L need not rent to an unsuitable T. T’s wrongdoing doesn’t impose liability on L.” Confrontation when D saw her removing some paneling. D) Policy against: L shouldn’t be forced to choose T he doesn’t want. party has obligation to make reasonable efforts to mitigate damages caused by breach of K. Then Wiley changed locks while Berg was gone and wouldn’t let her in. (Sommer v. must make same effort to rent abandoned unit as makes for other units. b. the common law rule would find this self-help reentry to be wrongful as well because the reentry was forcible. Berg sued. the only remedy was ejectment. Under K law. Wiley said she abandoned and counterclaimed for damages to premises. 32 . Berg put up sign: “Closed for remodeling. Tenant who has Abandoned Possession a. in this case. Furthermore. and defaults on rent. The only reason why there wasn’t violence was because Berg wasn’t there and she resorted to the judicial process. L’s search may be seen as an acceptance of T’s surrender. I) JX differ on whether L or T have burden of proof of whether L mitigated damages. A) T has a property interest in the leased premises and L can’t interfere with T’s own property. B) Policy against: encourages economic waste 2. Berg didn’t abandon. Did Berg abandon premises. Issue: Rule: Analysis: Policy: Concl: c. Summary proceedings in every state for L to evict T. and was Wiley’s reentry forcible and wrongful as a matter of law? Common law: L may rightfully use self help to retake premises from T if 1) L is legally entitled to possession or lease term allows reentry AND 2) L’s means of reentry are peaceable. Kridel) A) If L has other vacant units. Traditionally. C) Lease is more like a K. or 3) leave vacant and sue for rent when it is due. The relationship between P and D was contentious. L may 1) accept surrender and terminate lease. Modern: L has an obligation to make a reasonable effort to mitigate damages when T has abandoned leased residential property (may apply to commercial in some JX). but still takes a while. Trial court found for Berg – didn’t abandon. Self-help repossession leads to violence. Berg v. After T abandons. Court adopts modern trend that self-help is never available to L.

but not for back rent or other breaches. Principles began to be modified in the 60s. Kridel wrote letter saying could no longer afford and forfeiting amt already paid. Security deposit – many statutes limit amount. Thus it would be anomalous to require L to concern himself with T’s abandonment of T’s own property. “Moral hazard” – L has incentive to neglect once lease is executed b/c T bears costs of ordinary repairs. One week into lease. relieving T of obligation to pay rent if she vacates within a reasonable time. T had to do all repairs. Remedies (condition of premises) i. b. L couldn’t do this under traditional. “Caveat lessee” – T took leased property as is. IS L under a duty to mitigate damages by making reasonable efforts to re-let an apt wrongfully vacated and abandoned by T? OLD rule: L may recover rent due under lease regardless of whether L had attempted to re-let the vacated apts. Extinguishes liability for future rent. advance rent. c. In most JX. L has an obligation to make a reasonable effort to mitigate damages when T has abandoned leased residential property. CQE is implied in every lease and cannot be waived. Covenant of Quiet enjoyment (CQE) and constructive eviction (CE) a. and L’s only obligation was to turn over possession. Rights. Sommer sues for entire amount of rent due for 2 yrs. but L can recover amount up to what could have been reasonably avoided (burden on T) plus any other detriment to L proximately caused by T’s abandonment. Acceptance of surrender by L may be implied or express A) Implied: actions inconsistent with continuation may be surrender if L doesn’t notify T. a. 2. say amt must be kept in trust. Kridel (p 509) Facts: Kridel entered into 2-year lease with Sommer and paid 1st mo + security. A) L usually has a reasonable time to fix it after T gives L notice of the problem. Burden of proof is usually on the party that breaches. 3. Issue: Rule: Analysis: Concl: e. Voluntary surrender terminates lease if L accepts it. but was told it was already rented. Landlord’s remedies and security devices 1. May be implicit or explicit A) Abandonment is implied offer of surrender. L has right to sue for unpaid rent and damages due to other breaches A) L can evict if T is still in possession. all remain rent is due. Quiet enjoyment referred only to T’s access to the premises. 33 . T can also stay and still get rent abatement under breach of CQE. B) Rent acceleration: On T’s default. Majority (old) rule is based on principles of property law that equate a lease with a transfer of property interest in the owner’s estate. Surrender 1. 1. L must pay interest. ii. A third party inquired about the apt. Sommer didn’t rent until after end of 2-year lease. 2. F. Application of k rules may be justified as a matter of basic fairness: recovery forbidden when damages could have been avoided by reasonable efforts.Property Outline Fall 2003 E) CA statute requires duty to mitigate. 1. 2. Sommer v. 3. so burden is on L. T isn’t necessarily excused from obligations – L doesn’t have to accept unsuitable tenant – but here there was a suitable T available. Ordinary residential leases are now not as distinguishable from ordinary contracts. Traditionally. Journalists’ exposure of the slums started to change in early 1900s c. Sommer never replied. Other security devices A) Payment in consideration of executing lease. L must itemize deductions. d. liquidated damages. Duties. but here L is in much better position to show that she took reasonable efforts. and L was under no obligation to warrant fitness. CQE & CE – Substantial interference with T’s beneficial use (CQE) by L is constructive eviction of T.

Typically must be major problems affecting T’s health and safety – usually for low-income housing only. Building manager dried out floor when D complained. 3. or withhold rent and raise as a defense when L sues C) T may terminate lease and sue for damages. IWH – implied and unwaivable in every residential lease that L will deliver and maintain premises that are safe. b. and promised to keep premises in good condition. Cooper (p 522) Facts: Cooper (D) entered 5 year lease of basement floor of building from Reste (P). Manager continued to promptly respond to instances of flooding. maintain common areas. Vacating premises under theory of constructive eviction is a serious. Partial CE – some JX allow T to be relieved from liability for the portion of the rent for the premises that cannot be used. Reste Realty Corp. E) Most JX allow as a defense to eviction. L knew or should have known of the problem and had a duty to inform her. 6. C) Interference need not be permanent. Not accepted in every JX. 4. v. Different than CQE: A) CQE applies to all leases. Remedy A) K remedies available B) T may remain in possession and sue for reimbursement and damages (possibly even punitive damages). Was Cooper constructively evicted. Floor flooded every time it rained due to the construction of the driveway and foundation (not part of the leased premises).Property Outline Fall 2003 A) Implied CQE followed in all JX for residential and commercial leases and interpreted broadly. clean. Work was done. interrupting D’s business. Landlord sued for rent for remainder of lease. A) Housing code violations are evidence of breach but aren’t conclusive. Calculation of damages A) Difference btwn value if in good condition and current condition OR B) Difference btwn agreed rent and value in condition C) Rent reduced by percentage equal to loss of value due to breach. D) Injunctive relief – rarely used by T. 1. B) L has a duty to: disclose latent defects. The interference was substantial. No one responded to D’s complaints of flooding. and moved out 10 days later. may be waiveable if T had equal bargaining power. A year later. just substantial. Lease contained express covenant of quiet enjoyment. control other tenants. 2. 34 . 3. F) Some JX only allow if breach is so substantial that it relieves of all liability for rent. and fit for human habitation. Cooper entered new 5-year lease. D knew about the problem when she entered the second lease. Policy against: Raises everyone’s rent and thus increases homelessness. so 9 months is a reasonable amount of time. Then manager died. the problem stopped but came back worse than before. IWH just to low-income residential leases B) IWH preferred where applicable b/c greater damages possible and easier to prove. Substantial interference with express or implied covenant of quiet enjoyment of the leased premises or material breach of another covenant of the lease by and act or omission of L is constructive eviction of T. accepted them as they were. 5. Implied warranty of habitability (IWH) a. B) Doesn’t apply broadly to enforce all promises regarding condition of premises. relieving T of obligation to pay rent if she vacates within a reasonable time. D gave notice she was vacating. a particularly bad flooding incident occurred. but reasonably relied on manager’s promise to fix it. 9 months after manager’s death. and building manager promised to fix the flooding problem. relieving her of liability for rent on remainder of the lease? The leakage problem could not have been reasonably ascertained by T and was not a problem with the actual premises she had leased. Constructive eviction can occur either from a breach of the covenant of quiet enjoyment or a material breach of another covenant of the lease. agreeing that she had inspected the premises. Issue: Analysis: Concl: iii.

T’s duties. Peter (D) told her she could get back her security deposit if she cleaned the apt herself. not arable land. T is in an inferior bargaining position compared to L. L’s rights and remedies (p 546) a. CA: IWH for residential leases. Retaliatory eviction (p 543) 1. Issue: Analysis: Concl: c. 7. P had to repair many things at her own cost. or abnormally dangerous activity. Modern – presumption of retaliatory eviction if L seeks to terminate or raise rent w/in set period after good-faith complaint by T based on condition of premises. permanence. T doesn’t need to abandon premises to recover (constructive eviction). L could terminate at will 2. L’s Tort Liability (p 544) 1. Nuisance (p 747) A. Modern – for rental of only part of a building. IWH doesn’t. and enters into lease to obtain safe. 3. sanitary and comfortable housing. Hilder v. but D denied ever getting the deposit. Destruction of premises 1. In the rental of any residential dwelling unit. Objective standard 35 . d. T is excused from rent if premises are destroyed. throughout the period of the tenancy. Fixtures. St. A) L cannot retaliate after period. non-trespassory invasion of another’s interest in the use and enjoyment of land that is either 1) intentional and unreasonable OR 2) unintentional result of negligent. become part of the land b. Minority: use IWH to impose general standard of care on L in all circumstances. L has a reasonable time to correct. CQE must be raised within a reasonable time D) CQE generally requires vacation of premises. and can also get punitive damages. Nuisance – A substantial. Traditionally. and cannot be waived by agreement. but T bears burden of proof. and L can’t retaliate. Majority – don’t recognize duty of care but recognize only common law exceptions. Land Use Controls VIII. length of remaining term of lease. P retained possession and sued for reimbursement of all rent paid and compensatory damages. Substantial invasion 1. A) CA leads the way in imposing liability for injuries that occur. A) Explicit covenants to repair generally accept normal wear and tear as well as damage by fire or other casualty. Traditional – T still liable for rent b/c lease is an interest in the soil 2.Property Outline Fall 2003 C) IWH can be raised at any time. Look at effect on use and value. there is an implied warranty of habitability in the lease that L will deliver over and maintain. 2. and also anything that has an impact on the health and safety of T. Intro i. entitling P to return of all rent paid plus additional damages even though P never abandoned the premises? Today. reckless. T’s alterations can be waste. 1. Did the state of the apt constitute a breach of the implied warranty of habitability. The apt was in extreme disrepair. Substantial violation of housing code is evidence of breach of IWH. a. c. Peter (p 533) Facts: Hilder (P) rented apt. though originally chattel. clean. iv. and fit for human habitation. and had to stop using part of the apt. Permissive waste traditionally obligated T to repair. but not every alteration is waste. 2. St. Mere ugliness is not enough. premises that are safe. Implied warranty of habitability covers all latent and patent defects in the essential facilities of the residential unit. and D ignored all of P’s requests for repair. b. Traditional: L only liable for duties arising out of CE and CQE 2. either. Hilder did.

Intentional nuisance excused if it is reasonable or doesn’t cause much harm. Kinds of nuisances a. Intentional and unreasonable measured: 1. Injunction a. Unintentional trespass is treated like an unintentional nuisance (must be result of negligent. reckless. not abnormally sensitive uses. Liability is absolute. But may still be a nuisance if gravity of harm outweighs utility of conduct. Light and Air c. 2. Right to lateral support can be waived or expressly expanded. Generally only normal use of property is protected by nuisance law. ii. Balancing the equities – weigh injury that may result to D and the public by ending activity against injury sustained by P by allowing activity to continue (Estancias) – standard test for injunction. If result of groundwater extraction d. or abnormally dangerous activity). 1. If subsidence wouldn’t have occurred but for improvements by excavator’s successors and excavator gave notice of plans/ 2. ii. iv. Public nuisance 1. Fear and loathing – Halfway houses and prisons may be found to be nuisances b.Property Outline Fall 2003 b. C. Private nuisance 1. Lateral Support – support provided to one piece of land by the parcels surrounding it a. Remedies for nuisances i. Subjacent Support – support underneath parcel a. no need to show negligence c. Level of interference 2. intentional tort that results in liability regardless of harm b. peace. v. Gravity of harm outweighs utility of actor’s conduct c. Trespass – physical invasion of another’s property. Generally arises when one person has mining rights. Public Nuisance a. Nothing done or maintained under express authority of statute is a nuisance. Private: Any nuisance that isn’t public B. Spite – courts generally find nuisance liability for structure with no use other than to vex neighbor. a. b. Private vs. Can only be brought if it interferes with enjoyment of P’s land. iii. After receiving injunction. c. Nuisance is part tort (negligent or wrongful activity) and part property law ( interference with land) a. CA: Anything injurious to health. Still private even if there are many landowners who are affected. c. and goes as w/ lateral support. b. Generally. safety. Right to Lateral and Subjacent Support (p 754) i. Protects public rights and need not interfere with land use rights 2. 2. d. Whenever the damage resulting for a nuisance is found not “unsubstantial. Public: affects at the same time an entire community or neighborhood even if harm is unequal. 36 . Sic utere – One should use ones property in a way that doesn’t injure the property of another. 1. Liable only if negligent 1. Traditional remedy for nuisance 1. Interferes with health. Cause of action doesn’t arise until subsidence (sinking) occurs or is threatened and runs against the excavator. P may bargain with D to allow use to continue in exchange for $.” an injunction should be granted (changed by Boomer). Action can be brought by government or member of the public who is affected and can show “special injury” – damage different or beyond injury to the public. who may be a predecessor of the present possessor b.

Two possible remedies: 1) order an injunction but postpone it to allow time for technological advances to reduce pollution. that isn’t fair to have an injunction. so awarding temporary damages will allow P to maintain successive actions for damages. Boomer v. Court chooses 2) because will fully redress wrong to P. v. D appeals on ground that trial court didn’t balance the equities. would have cost $40k to build air conditioning differently. the equities should be balanced: consider injury that may result to D and the public by ending activity as well as injury sustained by P by allowing activity to continue. Where the costs to D of an injunction are high.5k. gave temporary damages. court can grant injunction that can be vacated on payment of permanent damages to P for all harm incurred in the future. but they had to chose one (couldn’t get both under TX law). Temporary damages may not enough if an injunction isn’t granted after balancing the equities because harm may continue. 2) grant injunction that can be vacated on payment of permanent damages to P for all harm incurred in the future. Coming to the nuisance – Abate all activity if P pays damages a. but no injunction will result in continual damages to P. what should the court rule? Old Rule: Whenever the damage resulting for a nuisance is found not “unsubstantial. The damage to P is relatively small. but it isn’t for the court to decide how to fix the public harm in a private case. Issue: Rule: Analysis: Concl: Dissent: v. D’s apts can’t be rented w/o air conditioning. There is no shortage of housing. 1. Atlantic Cement Co. 37 . The damages to P will continue. Schultz (p 755) Facts: Air conditioning unit at back of Estancias’s (D) apartment complex created lots of noise for neighboring Shultzes (P): couldn’t carry on conversations in home. Issue: Analysis: Concl: a. and now would cost $150-200k to change. Affirmed by appellate court. Jury found damages. The cost to D of an injunction is so high. Traditionally – if P came to the nuisance. Does the injury resulting to D and the public by stopping the activity outweigh the injury to P by continuing the activity? No evidence that the public will be injured by stopping the air conditioning. Even if there is a nuisance.” an injunction should be granted. An injunction would cause the plant to shut down (worth 45 mil with 300 workers). P sued for damages and injunction. This plant is actually affecting the public at large. The residential landowner may not have relief against agricultural business if he knowingly came into a neighborhood already used for agricultural business (Spur). no injunction. P’s harm still outweighs. a. Where an injunction would cost D a lot and damages to P are relatively small. iii. Remedies are often calculated on an uneven playing field 1. This was allows and encourages wrongs to continue as long as D pays for them. By issuing injunction. Should just grant injunction under old rule. ct gives Schultzes a property interest in Estancias’s land. trial court awarded injunction. 1) isn’t feasible b/c such advances would take a long time and require the whole industry’s help. Estancias Dallas Corp. Trial court found a nuisance. 3. property value reduced by at lease $12.Property Outline Fall 2003 ii. this was an absolute defense for D. No zoning laws in TX. Here. 2. Permanent damages – D must pay P permanent damages or injunction will be enforced (Boomer). (p 759) Facts: Atlantic (D) operates a cement factory causing air pollution for Boomer (P) and probably the public at large. Shultz’s sued for injunction based on nuisance and sought damages. giving P continual causes of action for damages. Notes: 1. b. But this meant that the first landowner determined the use for the whole area. Nuisance will not be permitted to exist based on the “stern rule” of necessity rather than the right of the actor to work harm on his neighbor. iv. Easier for D to show cost of stopping than for P to show harm inflicted such as health impact. b.

v. govt finds the cleanest factory. 2. c. Easements (p782) i. g. Del Webb must indemnify Spur for a reasonable amt of the cost of moving or shutting down. Duration of easement 1. then says all factories have to be like that one in 10 yrs. Easements Appurtenant – benefits the holder in the use of a specific piece of land. Under the Clean Air Act. 1. so permanent enjoinder. Inc. but not of the specific use of a specific piece of land. 1. Incentives a. If ag business must be enjoined b/c of a public nuisance. Intro a. The developer of a new town must pay if the operator of a business must move or stop because the business is a public nuisance to the residential development. Dominant Tenement – Property benefiting from the right to use 1. Servient Tenement – Property burdened by the right to use. Del Webb brought action of a public nuisance b/c of the flies and odors. a. Easements in Gross – personal to the holder and not tied to ownership of a particular piece of land. the residential landowner may not have relief if he knowingly came into a neighborhood already used for agricultural business. Spur Industries. Zoning law represents a governmental determination of the general use of the land. 2) In coming to nuisances cases. Boomer court called for legislature to act to regulate pollution. IX. However. Del Webb had trouble selling the lots close to it. e. E. Webb Development Co. Private Land Use Controls: Servitudes A. Negative Easement – right to prevent owner of another land from making certain uses of the land. We now have sweeping administrative and permanent regulations that address these problems. Easements are permanent unless limited: can be easement determinable. May not be transferrable or divisible. Nuisance actions can still be brought even if these laws aren’t violated. No dominant tenement in easements in gross. Del Webb bought a bunch of (cheap) land right next to that community and the feedlot to build a residential community (Sun City). Easements are non-possessory and create property interests b. or given a set amt of polluting rights. 2. must the developer of a new town indemnify the operator of the business who must move or stop because of the residential area created by the developer? 1) Youngtown residents not greatly affected. only dominant tenant. ii.Property Outline Fall 2003 1. Nuisance law and environmental controls i. property on which the easement is used. Del E. (p 766) Facts: Spur owned a feedlot not too far from a retirement community (Youngtown). 1) Where an operation of a business is lawful but becomes a nuisance b/c of a nearby residential community. d. so just get damages. Actions can be brought privately or by govt under these laws. Passes to successive owners of the dominant tenement. b. f. but it is much easier to use these statutes and say D violated permit or didn’t get a permit. h. Affirmative Easement – right to use another’s land c. Sun City residents near feedlot are greatly affected by both public and private nuisance. Issue: Analysis: Concl: D. P can be liable for only part of the costs if appropriate vi. As he built closer to the feedlot. The lawful use by the business is a relevant factor (zoned for agricultural use). Spur’s action isn’t just personal but b/c of damage to the residents. 38 . can the business be enjoined (stopped by injunction)? 2) If so. Something lawful under zoning laws can still be a nuisance ii. residential developer must pay for relocation. Pay fee for polluting (effluent fee). Nuisance law could still be used. Zoning i.

effectively reserve an easement for a third party? Common law: grantor cannot reserve an interest in property for a stranger to the title. easement runs to successive owners of the dominant tenement. Willard v. Willard brought suit to quiet title. grantee is bound even though he didn’t sign it. but not followed by all cts. Petersen persuaded her to sell it to him so he could sell it to Willard (P). C) If the reason for the easement disappears. 5. Traditionally: Easements can only be reserved for the grantor or the grantee. trial court found for him. by prescription a. it is regarded as given to the grantor by the grantee after receiving the full interest in the land 3. B) Exceptions to revocability of licenses I) License coupled with an interest – ownership of chattel located on licensor’s land or right to take something like timber from the land (profit a prendere). A) A grantor cannot actually reserve an easement. D) R3d Prop allows servitudes to be created by estoppel. Easement by estoppel (p 791) 1. Notice: In express easement by grant. a third party interest in property may be effectively reserved in a deed of real property. by implication. Easement by express grant (p 785) 1. by necessity. Creation of Easements – by express grant. b. License: oral or written permission given by occupant of land allowing the licensee to do some act that would otherwise be a trespass. A reservation is treated as if it is a grant of the easement from the grantee to the grantor. First Church of Christ (p 785) Facts: McGuigan owned a lot she bought so a church across the street use it for parking. 39 . 4. balancing competing interests may warrant application of the old rule to presently existing deeds. Issue: Rule: Analysis: Concl: A) Note: The easement was unclear b/c didn’t specify what “church purposes” were or how many parking spaces needed to be reserved. Modern: Easement can be reserved for a third party if that is the grantor’s intention (Willard). II) License can become irrevocable when they become easements by estoppel. A) In R3d of Prop. Easements by estoppel 1) a licensee exercises right of way 2) with servient owner’s permission and 3) goes to considerable expense to improve the right of way A) Licensee relied on the tacit approval of licensor in going to expense of improving easement.Property Outline Fall 2003 ii. B) Licensor’s inaction in the face of obvious knowledge is enough. in deeding real property. Petersen didn’t include that in the deed he gave to Willard. the easement will generally disappear as well. but if reason continues. Old rule is based in feudal times. Easements are within the Statute of Frauds b/c they are interests in land. so put “subject to” an easement for parking by church in the deed. creating a new interest after the whole of the interest was conveyed to the grantee. A) Licenses are revocable at will. She discounted the price 1/3. In other cases. Can a grantor. 2. 2. A) By accepting. though. successive owners are on notice because they can view the title records. In the interest of protecting the intention of the grantor. Our primary interest is in supporting the intent of the grantor. McGuigan wanted church to still park there. Clearly the intent was to have an easement. Facts do not support reliance on the old rule b/c Willard didn’t even know about the easement.

the price may have been for the land w/o the easement. No deed contained any reservations. 4.Property Outline Fall 2003 3. The degree of necessity necessary to imply and easement in favor of the grantor is greater than that to imply in favor of the grantee. and 4) and built a sewer pipe across two of the lots for a house on the third. Taylors bought property next door and used the driveway for getting in and out and hauling equipment to build their house. No right by prescription: use not continuous or adverse. Grantor can easily put it in the deed. Issue: Rule: Analysis: 40 . There isn’t another good way to get to the Taylor property. but may have a quasi easement on one part of the land for the benefit of the other part. Jones bought lot 19 and knew about the sewer pipe. 2) Severance by a common owner: Grantor conveys part of the land or conveys both parts to different grantees simultaneously 3) Use is continuous and/or permanent 4) Easement is reasonably necessary for enjoyment of dominant tenement (some JX require strict necessity) 5) Easement must be apparent but not necessarily visible to the grantee (of the servient T) A) English rule: grantor can’t reserve an easement for himself by implication. An easement created by implication arises as an inference of the intention of the parties. Taylor (p 791) Facts: Holbrook bought property in 1942 and allowed a right of way to be used by a coal mine company. B) If grantor didn’t put it in the grant. The easement must be one of strict necessity in order to establish an easement implied by reservation in favor of the grantor. must meet stricter standards of necessity. If the owner later redivides. 20. Van Sandt v. Implied easement arises whenever grantor conveys quasi servient tenancy. a new easement by implication will arise if it meets requirements. Is there an easement implied from prior use? An owner can’t have an easement in his own land. which it did for several years. Issue: Rule: Analysis: Concl: c. the license is irrevocable by estoppel. Trial court found right of use by estoppel but not by prescription Do the Taylors have a right to use the driveway by estoppel? Easement by estoppel: if licensee has exercised privilege given by licensor and erected improvements at considerable cost. There is nothing in writing. Jones (19)  Reynolds  Van Sandt (P). Royster (p 796) Facts: Bailey owed 3 lots (19. Bailey conveyed lot 20 to Murphy  Royster (D). There is right by estoppel: Owner of servient estate (Holbrook) knew the Taylor’s spent money to improve the driveway and either gave permission or at least tacit approval. not the language of the grant. and Holbrook wanted them to sign a document excusing Holbrook of liability. Grantors may be assumed to intend the continuance of uses known to them that are necessary to the usefulness of the land. P discovered sewage in the basement. A) Some courts say it must be absolute necessity. When a licensee exercises right of way with owner of the servient estate’s permission and spends money to improve the right of way. Holbrook v. In 1964. others say it is only a factor. and we don’t want to let grantor keep the easement and the money. They also made improvements to the driveway ($100). easement is extinguished. Easement implied from prior existing use 1) Use exists prior to severance: A quasi-easement exists on the quasi-servient part of grantor’s land for the benefit of the quasi-dominant part. 3. Lot 4  Gray (D). Holbrook tried to stop them from using it. B) Only applies to easements appurtenant 2. If the dominant and servient T come into common ownership. If it is reserved for the grantor. Each party is bound to his intention and what he might reasonably have foreseen the other party’s intention to be. A) Applies to easements implied from prior use and by necessity 5. In 1970 things started to get bad. CA: Costs of repairs to such easements are shared by parties who own it by agreement or according to the proportion of use.

and part of the road wasn’t part of land that was severed while original owner still had title. No easement by prescription: Rosier used the road. P made an inspection of the premises and knew there was modern plumbing. 2. Othen has no easement of necessity b/c roadway wasn’t a necessity at the time the estates were severed.Property Outline Fall 2003 Jones knew about the sewer.31. making Othen’s use prescriptive. Land completely surrounded by the land of another doesn’t give the former a way of necessity where there is no privity of ownership. Appeals court found no easement at all across either. 2) the roadway is a necessity and not a mere convenience. Owner cannot have an easement across his own land. 4. Othen sues for injunction against this and other interferences with his use of the land. Rosier put up a levee by the road to protect farmland flooding that made the road unpassable. Rosier (p 802) Facts: Hill owned a bunch of land. Issue: Rule: Analysis: Concl: Notes: 41 . An easement was created by implication because the grantor knew about it and is thus assumed to have intended its continuance. Dominant owner must pay for the right of way B) Easement by necessity doesn’t operate in favor of the govt. Concl: d. P is charged with notice of the sewer – the use need not be actually visible if it is or should be apparent. He then conveyed part of the back portion (60) but kept part of the land containing the road (16. Easements by Necessity 1) Severance by a common owner 2) Need for easement existed at the time of severance (necessity now isn’t enough) 3) Easement is strictly necessary and not merely convenient (most JX) A) Only endures as long as necessary and is limited to extent necessary B) Typically right-of-way for landlocked parcel I) Landlocked land is economically inefficient C) Strict necessity may mean that if it is otherwise possible to get in just by foot.31). Burden of proof is on Othen. Does Othen have an easement by necessity or prescription across Rosier’s 100 acre and 16. Right to condemn (western states) A) Some statutes give private owners a right to condemn a necessary right-of-way across another’s property even if it doesn’t meet the other requirements of easement by necessity.31 plot b/c Hill still owned this at the time he conveyed the 100 plot. grantee should have known about it (it was apparent). but no easement across 16. too. Othen v. Othen cannot tack on the use of the road before Rosier’s owned the land b/c no evidence that it was exactly the same road. as he may have had other ways out. There was a way across that land to the back portion. I) Burden of proof is on the alleged dominant estate: if she can’t prove necessity existed at the time of severance. by boat. the easement isn’t necessary. and the easement is necessary for the comfortable enjoyment of the other property.31. No easement by necessity: Hill owned all land. Must be clear evidence. No evidence that this was the only way from his land to the road or that it was in exactly the same place as it is now. Othen (P) later got the two back parts: 50 and 63. He first conveyed part of land next to road (100 acres). and 3) this necessity existed at the time of the severance of the two estates. Easement implies the intent of the party. Othen has no easement by prescription b/c Rosier used the road. Most courts don’t construe exclusive use of easements by prescription so narrowly. or by extreme expense. 3. too. and this easement was necessary to the comfortable enjoyment of the property. it is assumed not to have existed.31 acre plots of land? Easement by necessity: 1) unity of ownership of alleged dominant and servient estates. Trial court found easement by necessity for Othen over 100 and 16. Hill later conveyed the rest of the back part (53) and the rest of the land with the road. Rosier (D) got the two front parts with the road – 100 and 16. Prescriptive period cannot begin when Hill still owned the land. Not clear that way across the 100 plot was necessary for Hill. so Othen’s use is permissive and cannot ripen into a prescriptive right.

then required presumed to have existed since 1189. Can D restrict membership to residents and thereby preclude public use of the dry sand area? Beach up to the mean high water mark is held in public trust by the state for the use of the public. A) A letter telling prescriptive user to stop is enough even if she doesn’t actually stop (unlike AP). Judicial decisions that modify property rights aren’t seen as governmental takings. 3. 2. Easements by Prescription 1. but right to use must arise from more that the general public’s right to use it. 4. owner must effectively stop prescriptive use. States have different approaches. not negative easements. D) Applies only to affirmative easements. c. and therefore can modify them. Beach Access A) Public prescriptive easements generally don’t work for beach access b/c use generally regarded as with permission B) CA. There is a built-in limitation to fee simple ownership just above the mean high water mark – you have to let the public uses it to cross to the beach and sunbathe on it. A) Landowner must be put on notice by the kind and extent of the use. Courts create property rights. a. no memory of man runneth to the contrary. b. and that an adverse right is being claimed by the public. 6. Public may also use and cross area above mean high water mark that is privately owned if it is necessary for the enjoyment of the beach. and restricts use and access through to members (residents of the area) and their guests during the daytime in the summer. Public Trust Doctrine – ownership of land from the shoreline to the mean high water mark is held in trust for the public by the state. 2. 1. Implied dedication – landowner evinces an intent to dedicate.Property Outline Fall 2003 e. US govt 3-12 miles and has exclusive JX up to 200 miles out or to limit of the continental shelf. Some American courts adopted the fiction of the lost grant: owner must acquiesce (not object) but the use cannot be permissive. (p 816) Facts: Bay Head Association owns or leases much of the dry sand area above the Bay Head beach. CA has strong public trust doctrine laws: may even regulate use of water if it causes body of water to shrink. allows public prescriptive easements only w/in 1000 yards of the ocean. Issue: Rule: 42 . B) Use doesn’t need to be exclusive. and the state accepts by maintaining the land used by the public. Use may also change from adverse to permissive. Public Prescriptive Easements – Obtained by long continuous use by the public under a claim of right. C) A change in the manner of use may be enough to shift it from a permissive to an adverse use. This is an easement by the general public to cross and use your property by virtue of the common law. C) Some courts have used the doctrine of customary rights – existed for so long. Easements by prescription 1) Open and notorious throughout the statutory period 2) Continuous and uninterrupted 3) Adverse (not permissive) 4) Under a claim of right A) US courts set same time as S/L for AP. History: A) Fiction of the lost grant. and the S/L must start over. State owns out to 3 miles out. Bay Head Improvement Assoc. though. B) In JX that don’t follow fiction of the lost grant. not by individuals 5. 1. iii. 3. Matthews v.

the public must have access to this area through the dry sand area. conveyed an easement on an artificial lake for exclusive right “to boat and fish” to Frank Miller. 3) Easements in gross are not divisible out of concern of burdening the servient estate more than was originally contemplated. and allows them to be divided unless contrary to original intent or would create unreasonable burden. iv. For 25 years they shared the costs and profits of the business they operated: recreational bathing. Rufus’s estate could not convey easement to Lutheran w/o Frank’s consent. Easements in gross are generally enforceable against successive owners of the servient estate. Lutheran Conference & Camp Assoc. Frank conveyed one fourth of interest “to boat. B) R3d Prop allows assignment regardless of commercial character. Katherine. c. as Frank’s wife. If there is to be more than one person exercising the right. subject to accommodation of the use of the owner. Issue: Analysis: 43 . A) Easements in gross are not limited to the need of the owner as easements appurtenant are 2. Katherine Miller. Frank and Rufus did sell bathing rights as part of their business. B) This only works if there is a small number of owners C) This is not the way TIC works: right to use the undivided whole. At this point. but courts are reluctant to allow them to be divided. Frank’s wife. other private owners of dry sand areas need not allow public use. Frank and Katherine sued for an injunction to enjoined Lutheran from selling bathing licenses. the inference is that things not listed are excluded.” A) This is to prevent the servient estate from being burdened beyond the extent originally contemplated. Miller v. Rufus’s estate gave bathing rights to Lutheran Conference. bought the lease to the lake. had knowledge of the use. b.” and cannot use the easement if it interferes with the right of the other. they must do so as “one stock. bathe” to Rufus (heirs and assigns forever). Frank and Rufus had a bathing rights easement by prescription. some land near the river was conveyed to Lutheran Church. just so much as is necessary. 1) Did Frank and Rufus have bathing rights on the river? 2) Were these rights assignable from Frank to Rufus? 3) Are easements in gross divisible? 1) There are no riparian rights b/c this is an artificial lake. A) Only recreational easements (hunting. d. bad blood developed within the Miller family. 2) This is an easement in gross because it was not attached to the land but was personal. However. e. There is no reason not to allow if it is the intention of the parties to give the right to assign. Traditional: easements in gross are not alienable. boating. There is controversy over whether an easement in gross is assignable. Riparian owners (land alongside natural. The deed clearly did not convey bathing rights to Frank. but this may become necessary if Association loses lease on a lot of the dry sand area. The Association acts as a quasi-public entity and thus must open membership to the public. D must open membership to the general public. Additionally. 4. navigable waters) have reasonable rights to use the waters subject to the rights of the other owners. One of the “canons of construction” – if you have a legal document that lists certain things. Easements in gross 1.Property Outline Fall 2003 Analysis: Concl: In order to exercise right to use the beach land held in public trust. Rufus died. and fishing. Pocono Spring Water dissolved. Easements in gross are not divisible and must be exercised as “one stock. which it was. This isn’t a static right and doesn’t mean the public can use all of the dry sand area. Therefore. Profits in gross are generally alienable. fish. his brother. Assignability of Easements (p 824) a. the owner. the public trust doctrine warrants the public’s use of this area. Modern: (Commercial) easements in gross are assignable if that is the intention of the original grantor (Miller). 3. Where use of dry sand area is necessary for public enjoyment of the beach. (p 824) Facts: Pocono Spring Water Ice Co. fishing) are not assignable. his heirs and assigns forever. public must have use of the dry sand area for sunbathing and recreational activities to fully enjoy the beach. Therefore.

one court refused to grant injunction if there is no injury to the servient owner (Brown v. 1. This is a misuse of the easement. Any use is a misuse and a trespass. However. The fact that there is no increase in burden doesn’t warrant a denial of injunctive relief. A) This decision isn’t followed b/c too dangerous to property rights. blocked Brown’s access. Issue: Rule: Analysis: Concl: Dissent: vi. which was adjacent to B and had no access road. easement appurtenant to one parcel may not be extended by the owner of that parcel to other parcels. Easements can always be enlarged by prescription. later bought parcel C. but there is no injury to D. owner of B. 3. Voss). Trial court denied D’s injunction. Natural expiration – most are unlimited. implied by prior use – use that existed prior to severance and any other similar use that the parties might reasonably have expected will be permitted. D counterclaimed for injunction against P’s use of road to get to C. adjoining or not. 2. Voss. Location A) Traditionally cannot be moved by servient owner w/o dominant owner’s consent B) Modern: can be moved w/o consent if servient owner pays for relocation. Brown began work to building a new single-family dwelling straddling the border between B and C. it doesn’t significantly lessen the utility. or frustrate the purpose of the easement d. Scope of Easements (p 839) a. an essential criterion for injunctive relief is actual and substantial injury. However. so no injunction granted. This use didn’t increase use of easement. Change must be reasonably foreseeable and reasonably necessary to enjoyment and development of the dominant T. which is required for injunction.Property Outline Fall 2003 Concl: Frank and Rufus had a bathing easement by prescription because they exercised bathing rights openly. but will not expand for utility lines. Easements appurtenant cannot be extended for use to other parcels to which the easement is not appurtenant. appeals reversed. by grant – terms will control. 3. A) More restricted than other easements. and must be exercised by Frank and Rufus’s estate as one entity. but grant may limit length b. b. c. A) Courts usually will expand use from horses to cars. Frank had the ability to assign his easement in gross to Rufus because it was clearly the intention of the original grantor to allow Frank to assign his interest. owners of A. 44 . Any extension of use of an easement appurtenant is a misuse. Brown. Brown v. Scope of types of easements 1. courts will look at circumstances surrounding creation to determine intent 2. Purpose no longer applies c. There is a tension between serving the interest of the parties and the economic use of the land 4. create a burden. By prescription – terminates if servient owner wrongfully and physically prevents use for statutory period. Should P be allowed to used an easement appurtenant to B to get to a dwelling straddling the border between B and C if there is no increase in use? Generally. continuously. v. Voss (p 833) Facts: Parcel B has an easement appurtenant over parcel A for access to a single-family dwelling on B. Termination of Easements (p 843) a. even if it doesn’t increase the burden on the servient estate. If ambiguous. Brown sought injunction against their blocking. The bathing easement is not divisible. with the knowledge of the owner but without express consent for 25 years. to which the easement is not appurtenant. even if the parcels are adjacent and the burden is not increased at all. by prescription – restricted to same general pattern of use that existed during statutory period and consistent w/ what servient owner might have expected from not objecting. Changing the scope of easement 1.

Govt owes P as a 5th Amendment taking b/c significant use of land that burdens P that created a new easement that was in any case not contemplated by original grantors. Traditionally. removed tracks. i. c. Started being used as a trail. state took over maintenance as public trail under Rails to Trail Act. by grant in 1899. Continued taxing just shows bureaucratic slowness. 1. Easement not extinguished by tax sale of servient tenement. b. Part two: grant said in fee simple. Issue: Analysis: Concl: Note: vii. US (p 843) Facts: RR ran across Preseault’s (P) property. Presault couldn’t use driveway or build another one. P sued for compensation under theory that trail amounted to a 5th Amendment taking. CA: perpetual in duration. it is for no more than use needed. Real covenant can be negative or affirmative promise (to not do or do an act).Property Outline Fall 2003 d. so no more use than necessary is assumed. RR stopped using tracks in 1975. never unenforceable b/c of a lack of privity. keeping RR tracks open as public trails and for possible future use as RR. but vertical privity is required I) Burden doesn’t run to AP b/c no vertical privity of estate. Did the conversion of the RR right of way into a public trail amount to a 5th Am. Estoppel – dom owner’s words or conduct are reasonably likely to cause reliance. Right of the dominant owner to stop servient owner from using land in a particular way. 1. In 1986. Eminent domain g. 3) RR abandoned b/c stopped use and removed tracks. Because negative easements were generally not enforceable. 2) Use as trail is way different in degree and nature of burden than RR use. so needed to have a property interest that could be enforceable against successors in interest. Negative Easements (p 858) a. perpetual or can be perpetual. not personal. Abandonment – must be more than non-use. j. Real covenants (History) a. particular characteristics follow the instrument. but it actually wasn’t b/c owners were forced to convey interest to RR. Release – dominant owner may release in writing. so use wan’t contemplated. 45 . Covenants Running with the Land i. did easement terminate in 1975 b/c of abandonment? 1) When RR acquires estate in land for track. was it limited to RR purposes only? 3) If not limited. Lots of people used the trail and came into P’s yard. Merger – if dominant and servient estates come into the same ownership e. Property law is mostly state law. B) This was rejected b/c it only worked for subdivisions. b. This has taken on a new twist with solar energy developments. A) First Restatement required horizontal privity for burden but not for the benefit to run. binding on all successors. so it is an easement. Other part said “in fee simple” and came from owner of the land. so Federal recognition of abandonment doesn’t control. However. property owners created agreements or promises restricting use of land. 1. but can exist beyond the L-T relationship. promises respecting the land that runs with the land at law 1. light and air easements were enforceable. Negative easements are generally not recognized 2. All states have conservation easements – property owner conveys development rights in order to conserve the land. h. Part one: grant said right of way. contractual duties aren’t enforceable against non-parties to the K. and it does. US courts created real covenants. Must be a present intention to relinquish or action inconsistent with future use. taking? 1) Did RR have an easement or fee simple? 2) If easement. Grant for one part was “right of way” and was determined by commissioner. Court of Federal Claims found for govt. f. 2. Privity of estate is required. Preseault v. Test for the running of the burden is stronger than the test for the running of the benefit. B. but taxes still paid as if RR. These easements are controlled by terms of the easement itself (you can convey some or all of the development rights).

or violate some public policy. It is way harder for an affirmative covenant to touch and concern. particularly covenants to pay. A) Allows promises to bind all future property owners who have notice unless they are illegal. Real covenants are enforceable at law – can get damages. Purchaser must have notice. Real covenants 1. Can be enforced by a third party in some circumstances. purchaser would get it for a discounted price. A) Notice can be inquiry notice – apparent that there is a common plan in the neighborhood. Equitable Servitudes (p 864) a. must have privity. the owner of the lots retained cannot do anything forbidden to the owner of the lot sold. b. III) Restrictions on the promisor’s use of her own land generally touch and concern. 2. 3. Successive owners are bound if: 1) that was what was intended. and then sell it for more w/o the restriction. McLean (p 870) Facts: D (McLeans) and P (Sanborn) each own part of lot 86 of a subdivision once owned by a common owner. d. Otherwise. Is D’s land subject to a reciprocal negative easement? When the owner of two or more lots sells one with restrictions that benefit the land retained. Covenants are not enforceable against assignees who have no notice of them. Equitable servitudes 1. C) Touches and concerns I) The closer the promise comes to connection to a physical use of the land. 4. d. P says it is in violation of the general plan of the subdivision. IV) Courts split on whether covenants not to compete touch and concern. B) If not in the deed. Equitable servitudes vs. Tulk v. Sanborn v. D started building a gas station on their lot. Equitable servitudes are enforceable in equity – can get an injunction 2. c. 1. Privity doesn’t matter as much for ES. Real covenants are stricter. 4. there must be some pattern of restriction. D) ES sometimes called negative easements 2. have to be in writing. and only negative covenants are enforceable as equitable servitudes. including lot 86. B) Asks if it is arbitrary or unreasonable restraint on alienation C) Some argue that touch and concern should be kept b/c we are allowing promises that will run with the land forever. ES followed in most JX 3. Negative covenants are treated like easements for succession purposes. The original owners of the subdivision lots attached a restriction to the deeds of a number of lots that the lots would be used only for residential purposes for the benefit of other lots retained by the original owners. 3) promise touches and concerns the land. the more likely it is to touch and concern. but it isn’t clear how much is needed for the pattern to create a reciprocal easement on the properties with no restrictions in the deeds. Moxhay (p 864) – A negative covenant is enforceable against subsequent purchasers even if it doesn’t run with the land.Property Outline Fall 2003 1. II) An affirmative covenant may touch and concern if the benefit also serves the burdened estate as in dues for upkeep in common interest communities (Neponsit). unconstitutional. 2. Benefits and burdens of affirmative covenants run to successors of estates of the same duration (traditional privity requirement) A) Burden runs to AP. Reciprocal easements require actual or constructive notice to the subsequent purchasers of the owner’s retained lots. R3d Prop goes farther and abandons requirement of touching and concerning. 2) successive owner had notice. Issue: Rule: 46 . ii.

including D’s. b. applying substance over form. Neponsit Prop. The lien is enforceable because the grantee and grantor intended the covenant to run with the land. These are less important in terms of land use in US. If language specifically prohibits. Defeasible estate is another property law based way of controlling land. represents those in privity of estate with D. and the easement is enforceable because D were on inquiry notice when they purchased the land. D was put on inquiry notice that the lot was subject to restriction because all the surrounding lots were obviously uniformly built according to a common plan. 2. Property owners association brought action to foreclose lien for non-payment. Again. beaches in the community. and 3) must be privity of estate between promissee or party claiming benefit and party w/ burden. Covenant included in all deeds of the land. 4. Emigrant Indus Sav Bank (p 875) Facts: Deed to land included covenant to pay money each year for maintenance of public roads. they would have found out that there was a reciprocal negative easement on their lot prohibiting the building of a gas station. there is privity of estate. However. 3. If language is ambiguous. If D had inquired. Property is now more controlled by zoning and covenants than defeasible fees and easements. not on the private activities within the home. Issue: Rule: Analysis: Concl: f. However. The lot contains a reciprocal negative easement because the lot was retained by its original owners while others were sold with negative easements that benefited the lot.Property Outline Fall 2003 Analysis: Lot 86 was retained by the original owners when they sold lots with restrictions that benefited lot 86. (Hill v. 2) covenant must touch and concern the land. and so is inseparably attached to the land. Owners Assoc v. iii. though not in privity of estate with D. lot 86 became bound to reciprocal negative easement. Covenants are construed based on the impact to the community. Interpretation of scope of restrictions 1. Defeasible Fees and Land Use Control Devices 1. has no privity of estate with the burdened party. as a corporation that doesn’t own any of the land in the community. substance rather than form allows ct to find that this does touch and concern the land b/c burden is for the benefit of the same land that is benefited. Is this covenant enforceable against subsequent purchasers? must 1) be the intention of the grantor and grantee that covenant run with the land. Therefore. and the association. 47 . unpaid money to be enforceable as a lien against the property and enforceable by all assignees. 2) Touches and concerns usually only applies to negative easements. Statutes tend to be given more deference b/c they are created by an elected body. Scope of Covenants (p 893) a. clearly intended covenant to run with the land. economically better to have fewer restrictions. 1) From instrument. 3) Property owners association. B) Look at the range of impact that would be created by use under the covenant and see if D’s use falls within that range. Damien) A) Courts want to respect privacy but still address the community impact. the association exists solely for the benefit and to be the voice of the owners of the land that is benefited. the land burdened is the same as the land benefited so that the burden is inseparable from the benefited land. 2. in favor of free enjoyment A) Want to allow personal freedom. Concl: e. Covenant interpreted reasonably but strictly A) Words will not be construed literally if this would create absurd results. enforceable unless violates public policy.

I will have a hard time forcing you to follow it because I have unclean hands. they must be so general as to frustrate the original purpose of the agreement. Hill v. you may not be able to enforce them. Disparate impact – Conduct actually or predictably results in discrimination. e. legitimate expectations much more strongly than nuisance situations. 48 . 4. A) Sporadic violations are not enough. but the objective is enforcing the promises that were made. and that to enforce the covenant would be a violation of the Fair Housing Act. There is a mutual restrictive benefit because. D says that they are a family. For community violations to constitute abandonment. Abandonment and waiver (also acquiescence) 1. Increased traffic isn’t part of the covenant. A) Owners relied on the promise in purchasing the land and should be upheld even if the negative impact would be less than the increase in value if the covenant were broken. taking meals together. Changes outside of it are not enough. They are based on formal promises that create real.Property Outline Fall 2003 c. violates FHA: There is a disparate impact. Covenants are based on more than just expectations (nuisance law). The purpose is to create a group home dissimilar to an institution. Termination of Covenants (p 911) a. As long as original purpose can still be accomplished and substantial benefit is derived from covenant. Land must be rezoned before covenant can be inspected for discard. Changed conditions 1. Enforcing the covenant would violate FHA b/c it would discriminate against disabled individuals by not allowing them to live in residential neighborhoods. 3. 5. 3. the promises running against each other creates a communal benefit. Strong public policy – allowing disabled people to live outside of institutions and in residential neighborhoods. Reasonable accommodation – Failure to make reasonable accommodations to allow disabled person to use home. Do the 4 residents constitute a “family”? Would enforcement of covenant violate FHA? Fair Housing Act: discriminatory intent – whether D is treated differently from other non-disabled similarly situated people. 2. P started complaining after there was a newspaper article about Community. There are other homes in violation of the covenant in the neighborhood. Other defenses to equitable servitudes 1. covenant is valid even though property has greater value if used for other purposes. and not enforcing the covenant would be a reasonable accommodation. collectively. Neighbors (Hill +) say Community is violating covenant that land is for “single residence purposes” only and that there is increased traffic. Clean hands doctrine – if I violate the restriction. Community of Damien of Molokai (p 893) Facts: Community is a home for 4 people w/ AIDS living together. Additionally. Issue: Rule: Analysis: Concl: iv. d. may be held to be estopped or have acquiesced. Enforcement may not be as economically efficient. the more restrictive one applies. When zoning and private covenants are in conflict. Community is a single-family because they live as a family. Changes must occur within the actual subdivision or area. b. Community is a family b/c they live together as a family. B) Conditions must change so dramatically that is doesn’t make sense to enforce the covenant. R3d makes covenants easier to create and easier to terminate. which can sometimes only be accomplished by group living. Estoppel or acquiescence – if other owners watch breach happen but don’t say anything. w/ nursing care coming in but not living there. Laches – If you unreasonably delay in seeking to enforce your rights. c. 2.

Rick v. 4. Common Interest Communities (p 925) a. Truskolaski (p 911) Facts: D. B) Standard used to judge decisions by corporate leaders in business matters. Exterior walls. commercial zones allow residential uses. West objected to use outside of the residential covenant. Court doesn’t give damages to D in lieu of covenant enforcement. 1. Generally deeds also include attorney’s fees provisions. Covenant that land in subdivision was for single-family homes only existed on all plots. 1) Has the area so radically changed that it nullifies the purpose of the restrictive covenant? 2) Do violations by other home owners constitute abandonment and waiver of the covenant? Residents still derive benefit from covenant – not much traffic within the subdivision. A) CA: restrictions in deed are valid unless wholly arbitrary or contrary to public policy. Changes outside are not enough – there must be changes within the actual subdivision to nullify the covenant. Most CIC have homeowners associations that all owners are automatically members of. land. A) Enforces covenants. subdivision developer wanted to build shopping center in one area of subdivision. Business judgment rule – Focuses on the process: did they consider all the facts and make decision in good faith? A) If yes. but had a hard time selling all of land. Covenant upheld. Rick conveyed remaining land to P. Analysis: v. they must be so general as to frustrate the original purpose of the agreement. All owners are in vertical and horizontal privity of estate. Landowner has a right to enforce a restrictive covenant in her favor as long as the use is not outmoded and it affords real benefit to owner. 2. 2. 1. D argues this area has changed so radically that it has nullified the purpose. Area around the subdivision has become more commercial and high traffic than it used to be. and common areas are owned by all as TIC. Issue: Analysis: Concl: g. and restrictions and can vote in new CC&Rs. more restrictive one applies. v. B) Restrictions added later are given less deference: shifting standard of proof or have to be reasonable. they are protected even if there were bad consequences or the decision turned out to be a really bad decision. Western Land Co. privately owned towns d. Negative covenants restricting use almost always held to touch and concern. e. Each individual interior of units are owned separately in fee simple. For community violations to constitute abandonment. when zoning and private covenants are in conflict. homes are well-kept. The violations of the covenant by homeowners are distant and sporadic. not at the individual homeowner’s violation. covenant is valid even though property has greater value if used for other purposes. Planned unit developments – gated communities.Property Outline Fall 2003 f. sold to homeowners. 3. Even though city zoned area commercially. 49 . b. Pay monthly charge for upkeep and for liability expenses. 2. Uniform Common Interest Ownership Act requires a declaration of rules that are disclosed to purchasers. West (p 916) Facts: Rick subdivided land. II) The burden of proof is on the challenger. c. If original purpose can still be accomplished and there is still a substantial benefit. Restrictions in the deed are afforded greater presumption of reasonableness than those added by association later. who wanted to sell to hospital. Assoc has right to assess repairs and charge owners their share. Standards of judging restrictions 1. Also argues that homeowner violations of the covenant (day care in home. Condominiums 1. plot too small) are abandonment and waiver of covenant. conditions. I) The restrictions are evaluated by looking at the impact on the community as a whole of any such violation of the restriction.

govt can offset what it owes you. Eminent Domain (p 1093) i. There are also privacy issues: how far into the private home does the court want to reach? f. ii. X. the homeowners relied on this restriction in purchasing their condos. 50 . Public purpose is enough. Midkiff). B) But the partial taking decrease the value of your other land. (p 927) Facts: Nahrstedt. 4. All share mortgage and taxes. The burden of proof is on the objecting homeowner. and govt has to pay for it using taxes. not at the individual homeowner. Usually deals with land b/c govt doesn’t generally have use for personal property b. and have not repealed the restriction. although it isn’t written that way. Taking 1. and the rest will be increased in value as a result of the new use. 2. owns three indoor cats in violation of community restriction in the master deed against pets other than birds and fish. so that they are both owners and tenants. Taking is limited because it is unpopular. They have attributes of both corporations and mini-governments. d. Lakeside Village Condo Assoc. and can it be enforced against an objecting home owner? Restrictions in the recorded declaration are enforceable unless unreasonable. Inc. however. Nahrstedt v. 2. What a willing buyer would pay a willing seller A) Doesn’t take personal or sentimental value into consideration. c. but there are some federal property laws (patents). but draws a distinction between direct (who you sell the house to) and indirect restraints (paint color) A) Direct restraints must be reasonable I) If you must get permission to sell. Governmental Taking A. Here. this is probably enforceable. Restrictions in the recorded declaration. are afforded a presumption of validity that will be enforced even if they are unreasonable to some degree. Is the pet restriction unreasonable. too. Issue: Rule: Analysis: Concl: g. P says she didn’t know about the restriction. 3. govt has to compensate you for that. A) Can deny entry for any reason. owner of a condo in the Village. Restrictions in the recorded declaration of a common interest development are enforceable unless arbitrary. Just compensation 1. Title of land and building is held by a corporation. the burden substantially outweighs the benefit. 2. Doesn’t have to be physically for public use. Can be complicated to determine A) If govt is only taking part. Associations must enforce restrictions in good faith. Private property cannot be taken by the government for public use without just compensation a. 14th applies to state govt (interpreted to cover state takings later) c. Key questions: a. Property 1. 5th Amendment applies to federal govt b.Property Outline Fall 2003 C) Courts often regard associations as corporations. so that all depend on the financial stability of the others. or violates public policy. this is probably unreasonable II) If assoc has right of first refusal (right to meet any other offer before the proposed contract is accepted). Understood as: govt can take your property without your consent if they pay you and it’s for public use. Restrictions added later by the homeowners association must be reasonable. Generally look to state law (property law). R3d Prop: Restriction enforceable unless lacks rational justification. A) The courts defer to legislature to decide if it is for a public purpose unless there is no rational reason (HHA v. each resident owns stock and has a long term renewable lease. NY Co-operative Apartments (p 942) 1. The restrictions will be evaluated by looking at the community as a whole. Public use 1.

1. Per se rule: When the regulation deprives property of all value. Regulatory Takings (p 1151) i. But. vii. ii. farming. Regulatory takings: Govt so restricts the uses to which land may be put that it has effectively been taken. the courts must defer to this decision. Regulation of personal property by destroying a strand in the bundle (eagle parts) is not a taking b/c not all bundle needs to exist. The court’s role in reviewing this decision is narrow. But. Courts must defer to legislature’s decision of what constitutes public purpose unless the use is palpably without reasonable foundation. a. 51 . they had a chicken farm. c. Reciprocity of advantages – zoning laws are ok b/c restricted property benefits. It is the belief of the legislature at the time of passage that is examined. not whether the law in fact accomplished its goal. v. Dolan – govt rezoned so P could build new store on condition that she allowed a public bike path. and the chicken’s couldn’t take the noise of the planes flying overhead. price could be set by condemnation trial.Property Outline Fall 2003 iii. Causby – military landing base next door wasn’t a taking b/c it wasn’t on their land. may be a taking (US v. even when the govt is exercising a police power. p 1160). Issue: Analysis: Concl: B. ownership. 1. then it may be a taking b/c it would be taking all of the property owned by that party. If the part (like the airspace) was sold to another party. The character of the governmental action. iii. maybe lower expectations. ct would look at buyer’s awareness of the law to see what the investor expectation was (Lucas v. HI Housing Authority v. Causby. The extent to which the regulation has interfered with distinct investor expectations 1. The parcel is looked at as a whole. if the legislature has determined that a taking has a public purpose. (Semipermanent may be enough) 2. Court found a taking b/c the harm must be proportional to the condition if govt is going to do that (higher burden to factually show public need). Court: moratorium is not a permanent deprivation of all value. The economic impact of the regulation on the claimant b. Law required a certain number of T interested and able to buy from a single owner. viii. Test: Ct considers several factors when determining whether a taking has occurred (Penn Central): a. Taxation isn’t taking. Is there a reason like health and safety? d. not whether segments have been completely taken a. Is forcing sale to individual tenants a public use allowing a taking under the 14th Amendment? Subject to constitutional limitations. but there are limits on the uses that the owner may make of the land. c. Midkiff (p 1098) Facts: HHA made law forcing private owners to sell homes to T in order to more equitably distribute property ownership in HI. if planes flying through airspace negates ability to continue use of the land. Otherwise. b. Tahoe-Sierra Preservation Council– Imposed 5-year building moratorium. This limited Lucas. too. However. it is a per se taking that requires compensation unless background principles of state nuisance law” in the state would have prohibited the use. Can the action be characterized as a physical invasion? 2. Distinguished from nuisances a. the right to exclude. But line may not be clear: are they preventing a harm or securing a nuisance? vi. HI set it up as a taking so that the owners wouldn’t have to pay as much taxes. iv. Look at expectations: If they knew it was restricted when purchased. SC Coastal Council). The owner still has title. Needn’t pay if enjoining from harmful activities. If owner and T couldn’t agree. so found a taking of the airspace above. govt would have to compensate for “set back” regulations saying how close buildings can get to roads.

The plans would have made millions per year. Property is looked at as a whole. The Commission did not completely restrict the use of the air space above the station. The station may still be used as it was originally. the extent to which the regulation has interfered with distinct investment-backed expectations and the character of the governmental action. Loretto – required compensation when states required landlords to permit cable companies to install cable facilities on their property. The court will consider several factors when determining whether a taking has occurred: the economic impact of the regulation on the claimant. All are judicially reviewable. City of NY (p 1151) Facts: NYC’s law to protect historic buildings covers Grand Central Station.Property Outline Fall 2003 ix. x. is the transferability of development rights enough to constitute just compensation? Regulations are judged largely on the particular circumstances of the case. or a certificate of appropriateness on the ground of insufficient return. Is NYC’s regulation a judicial taking that requires just compensation? If so. Penn Central Transp Co. Issue: Analysis: Concl: 52 . v. Penn Central put two plans for a 50 story tower through the first two review processes and were denied. it merely rejected two proposed uses. Takings law doesn’t divide a parcel up into discreet segments to see which sections have been completely taken. Plans for modification of historic buildings must get a certificate of no effect on features. They did not seek judicial review. NY historic landmarks law did not create a regulatory taking of Grand Central Station. Development rights for historic parcels may be transferred to nearby parcels. But only got $1. a certificate of appropriateness.