PROPERTY CAPTURE, FINDERS, & GIFT .................................................................................... 3 EXCLUSION AND ACCESS ........................................................................................ 4 ADVERSE POSSESSION ........................................................................................... 4 EASEMENTS ...........................................................................................................

5 COVENANTS ........................................................................................................... 8 ESTATES AND FUTURE INTERESTS ........................................................................ 11 RULE AGAINST PERPETUITIES ............................................................................... 14 E&FI RULES OF INTERPRETATION ......................................................................... 14 CONCURRENT INTERESTS..................................................................................... 16 LEASEHOLDS ........................................................................................................ 18 REAL ESTATE TRANSACTIONS............................................................................... 22 INTELLECTUAL PROPERTY .................................................................................... 26 TAKINGS............................................................................................................... 27

ARGUMENTS Doctrine: blackletter law Policy: better for society Theory: better reflects a general conceptual approach THEORIES OWNERSHIP Right of O to control P Sticks (exclude, transfer, possess, use) bundled SOCIAL RELATIONS (SINGER) P as system that distributes resources Effectuates relations and values through law Os and non-Os may have entitlements Sticks can be unbundled Property is a system of rights & duties, distributing valuable resources among members of society, owners & non-owners, expressing human values and shaping human relations LAW & ECONOMICS (Wealth maximization) P should promote wealth maximization Title to party that values it most to minimize transaction costs Liability v. P rules PERSONHOOD (RADIN) P exists in a hierarchy of fungibility P that constitutes self not commensurable by money Ownership should be regulated to promote human flourishing Market v. inalienability LABOR THEORY (LOCKE) We own our labor/extension of ourselves When we mix our labor with something it becomes ours Take things from nature, take from the common RIGHTS Mainly exclude, transfer, and use Sell Give Rent Develop Keep (forever) Will ACQUISITION Buy Receive Find Create Take Inherent rights from God/Nature Hide Divide Recreation Extract Sustenance Invest Conserve Destroy

JOHNSON v. MINTOSH (98) US: government has exclusive right to title through doctrine of discovery NA: right of occupancy (use and exclude, no transfer), extinguishable through conquest or purchase No recognition of transactions between NA and individual citizens

CAPTURE, FINDERS, & GIFT

CAPTURE PIERSON v. POST (152) (Fox hunting) To acquire rights over P in nature, must establish possession, or relative possession Majority: possession is capture which is mortal wounding or actual control Dissent: rights from a reasonable prospect of taking POPOV v. HAYASHI (156) (Baseball) Grays rule: actor must retain control of the ball after incidental contact with people and things Pre-possessory interest where significant but incomplete effort interrupted by unlawful acts of others FINDERS Lost: accidentally misplaced; F cannot claim title Mislaid: intentionally left, O forgets where; F cannot claim title Abandoned: intent to relinquish ownership; F can claim Possession is 9/10s of law F v. Third Parties: F prevails unless wrongdoing F v. True Owner: TO prevails unless abandoned F v. Premise Owner: F prevails unless trespassing WILLCOX v. STROUP (168) (Civil War papers) Chain of title murky but policy in favor of party in possession Stability: encourages improvements and avoids disruption, uncertainty, and litigation Personal interest in family papers Plus, public already had access to papers through USCs archive GIFT Must have: 1) Intent to transfer 2) Delivery, physical or constructive 3) Acceptance Possible conditions attached to engagement rings, i.e., marriage Statutory exceptions: prenuptial agreements

WHAT CAN BE OWNED

MOORE v. REGENTS (231) (Mo cell line) Patients have no P interest in removed tissues after signing consent Doctors have fiduciary duty to disclose future uses of tissue (informed consent) Policy: encourage scientific innovations (using donations, not sales) and informed medical decisions

CHARRIER v. BELL (171) (Indian burial items) Finders law does not include claims to burial items; neither lost, mislaid, nor abandoned

EXCLUSION AND ACCESS

TRESPASS 1) Intentional intrusion: objective standard, being on P 2) Property 3) Owned by someone else 4) Not privileged Privileged when: Consent of Owner Necessary to prevent more serious harms to persons or P Encouraged by public policy JACQUE v. STEENBURG HOMES (28) (Delivering mobile home) Right to exclude is sina qua non of property Punitive: reprehensibility of crime, potential harm, comparable rewards in similar cases Deterrence needs to be great or company will violate again ACCESS STATE v. SHACK (3) (Migrant workers) Privileged consent when providing access to available government services Providers must have reasonable access Social relations: right to exclude limited by duty to prevent more serious harm RIGHT TO EXCLUDE Innkeepers/common carriers have none Private/public facilities: reasonable exclusion/access To what extent is P open to public? What interests underlie desire to access/exclude? Security, expression, discrimination? Private facilities: so long as not violating anti-discrimination laws Civil Rights Act 1964: no gender Minority: non-owners have right of reasonable access to P opened to public (USTON) USTON (16) (Card counter) All private businesses open to public must have reasonable right of access (minority rule) Majority rule: absolute right to exclude unless innkeeper/common carrier COLORADO Statute arresting any person able to work and support himself for loitering Voided for vagueness and denial of due process and equal protection

ADVERSE POSSESSION
Circumstances where non-permissive possession ripens into legal title

1) O sues to eject based on trespass, AP counterclaims with action to quiet title based on AP 2) AP brings affirmative claim to quiet title based on AP, O defends with title No AP against government (including COLORADO) Split on whether AP transfers subsurface mineral rights CLAIM OF RIGHT 1) Adverse/hostile 2) Actual 3) Open and notorious 4) Exclusive 5) Continuous 6) Statutory period: must prove all elements for duration Some jurisdictions, must be in good faith Burden of proof on claimant, sufficiency of evidence must be clear and convincing COLORADO: actual, adverse, hostile, under claim of right, exclusive, uninterrupted for 18 years Preponderance of the evidence standard -> clear and convincing for affirmative claims BROWN v. GOBBLE (281) (2 feet strip) AP continuous through tacking; previous Os had used land as theirs NOME 2000 v. FAGERSTROM (289) (Squatters) F on land since time immemorial but divested of title by TEE-HIT-TON and AK Native Claims Settlement AP is objective: not what Fs believed or intended but whether possession was hostile Claim limited to land actually used in a way to put a reasonable O on notice McLEAN v. KIRLIN (COLORADO) Lead to changes in law: Clear and convincing standard for affirmative claims Must have reasonable good faith belief that claimant was true O Discretionary damages (market value of lost P + taxes with interest) Preponderance of evidence standard for defensive claims COLOR OF TITLE 1) (Defective) title 2) Possession 3) Payment of taxes for statutory period COLORADO: color of title, possession, and payment of taxes for uninterrupted 7 years (good faith) ROMERO v. GARCIA (287) (Widows marriage gift) Void deed: missing signature of member of community (signed by father in law, but not MIL) But deed clear enough to establish boundaries and R paid P taxes

EASEMENTS
Servitude: general term for non-possessory right/obligation that runs with land Easement: 1) permanent, irrevocable right 2) to use or enter land 3) in writing

AFFIRMATIVE Common and not restricted by subject matter EXPRESS In writing, intended, necessary for use/enjoyment Appurtenant: dominant and servient estates; benefited and burdened parcels o Benefit runs with the land by definition o Burden runs with land unless no notice In gross: only servient estate; only individual with right to enforce benefit o Historically: neither benefit nor burden ran with the land o Modern: depends on language of grant (plain language and intent) GREEN v. LUPO (458) (Motorcycles) WA: strong presumption for appurtenant, if anything in deed indicates intention to be appurtenant Held appurtenant and assignable to future Os, even after land subdivided Burdened/servient: right to restrictions that do not unreasonably interfere with contemplated use COX v. GLENBROOK (463) (Golf course) Benefited/dominant: right to improvements in spirit of original easement (appurtenant language) Easement is apportionable but cannot be widened past original intent or undue burden on servient HENLEY v. CABLEVISION (468) (Telephone plus cable lines) Non-exclusive right: grantor retains rights over land use; grantee has permission to do specific thing Grantee cannot give permission to third parties Here, exclusive right: easement exclusive to grantee and apportionable to third parties Grantee can expand scope of easement to include uses consistent with original intent NON-EXPRESS Not in writing, by conduct, exception to Statute of Frauds Estoppel Implication/previous use Necessity Prescriptive easement Constructive trust Public trust BY ESTOPPEL Transforming a license into an easement by estoppel Equitable remedy preventing O from denying access to licensee who reasonably relied to detriment Test: where licensee shows reasonable detrimental reliance on the terms of a license Usually, expended money with Os knowledge/approval Remedy: servient must allow ongoing access HOLBROOK v. TAYLOR (427) (Built house) Haul road on Hs P permissibly used by T to build a house, then H revoked permission Permission to use road may not be revoked

CONSTRUCTIVE TRUST Equitable remedy imposing on O a burden on P for benefit of wrongfully deprived party Stopgap measure when other easements dont work; halfway remedy RASE (429) (Lake cabins) Promising right of occupancy during purchase then evicting after is constructive fraud Cabin Os get 13 years possession or can accept payment for buyout BY IMPLICATION/PREVIOUS USE Previous common ownership of tracts Previous use in a visible and continuous manner Use reasonably necessary for enjoyment of dominant estate Burden higher when grantor is claimant GRANITE PROPERTIES (439) (Grocery store delivery) No easements in title but survey would have found consistent use of driveway, necessary to operation BY NECESSITY Previous common ownership of tracts After sale of one parcel, no other options except over previously joined land Do not have to show prior use Policy: effectuate intent (no enforcement if parties intended to be landlocked) Promote efficient utilization (petition to public official and compensation to O) FINN v. WILLIAMS (446) (Donut hole land) Where O conveys parcel with no outlet except over Os or strangers land, O must grant way Right of way can lie dormant through several transfers as long as there was once unity of title PRESCRIPTIVE EASEMENT 1) Open 2) Notorious 3) Adverse 4) Continuous for statutory period 5) Acquiescence by person against (passive, not preventing use) No negative PEs to stop neighbors from blocking access, only positive to allow access Growing exceptions to no PE/AP against government or by the public COMMUNITY FEED (311) (Gravel driveway) PE granted: general outlines with reasonable certainty, open and notorious, uninterrupted (by tacking), O had not denied permission until after statutory period tolled PUBLIC TRUST Public interests in government-owned lands Powers to exclude must be reasonably and lawfully exercised Test: whether means of access ensures reasonably satisfactory public use of public lands MATTHEWS V. BAY HEAD IMPROVEMENT ASSOCIATION Public has right to land covered by tide -> public has right of access over dry sand owned by quasi-public

Still has right to exclude if reasonably and lawfully exercised in furtherance of public welfare

NEGATIVE Uncommon and restricted by subject matter Modern statute: protects conservation, historic preservation, solar Now, restricted subject matter goes into covenants LICENSE Informal, temporary, personal, usually revocable grant to use or enter; no writing; not servitude TERMINATION Agreement Own terms Merger Abandonment, if intended by conduct of easement holder Adverse possession Marketable title acts: easement has to be renewed periodically in record

COVENANTS
Contractual promise regarding land use binding original parties, may run with land (servitude) REAL COVENANT SPENCERS CASE Writing Touch and concern*: use and enjoyment of land, market value Intent: express, heirs and assigns, presumed if touches and concerns Notice (burden side) Privity: a relationship between two parties o Horizontal*: between original contracting parties Mutual: simultaneous; landlord-tenant, mortgagor-mortgagee, easements Modern: instantaneous at buy-sell o Vertical privity*: between successors in interest of original contracting parties Strict: requires total alienation; sale Relaxed: would allow landlord-tenant Modern: non-hostile nexus with a future possessor Damages or injunction, from law courts *Standards vary WHITINSVILLE PLAZA v. KOTSEAS (481) (CVS) Relaxed vertical privity: sued both landlord and tenant for violation Previous O on claimant side cannot sue Benefits in gross: held by person without a direct interest in land, i.e., previous owner, not enforced Reasonable non-compete agreements touch and concern the land 1) intent and original purpose; 2) original consideration/value of covenant; 3) express restrictions; 4) writing, record, notice; 5) reasonableness in time, area, and duration; 6) unreasonable restraints, i.e., monopoly; 7) interference with public interest; 8) changed circumstances

EQUITABLE SERVITUDE TULK v. MOXHAY (created equitable servitudes) (Town Square => private individual, covenant survived even though no privity) Writing Touch and concern Intent Notice (burden side) Injunction only (and discretionary), from equity courts WINN-DIXIE STORES V. DOLGENCORP (477) (Grocery store & dollar store) In writing, non-compete intended and touches and concerns Burdened lessee would had constructive notice from nationwide practice and previous dealings IMPLIED RECIPROCAL NEGATIVE SERVITUDES May be enforceable if: Common scheme/general plan Restriction in all or most deeds to P in the area Recorded plat showing restriction Restriction in the last deed Observance of restriction by residence Language (runs with the land, intended to be mutually enforceable) Intended beneficiaries Who enforces/benefits Statute: developers must record a declaration with common scheme and intended beneficiaries EVANS v. POLLOCK (502) (Marina) Common scheme can apply to parts of a subdivision for IRNS IRNS in lakefront subdivision with single-family residence restriction but not on hill with unsold lots SANBORN v. McLEAN (506) (Gas station) Inferred intent and constructive/inquiry notice from residential restriction on 53/91 lots RILEY v. BEAR CREEK (506) (Snow tunnel) O given actual notice but deed contained no restrictions; not bound by architectural control committee COLORADO COMMON INTEREST OWNERSHIP ACT P ownership with mandatory assessments; not all residential subdivisions Declaration must be recorded and signed by grantor, not just subdivision plat ABRIL MEADOWS Did not comply with CCIA, cannot enforce even with actual notice of restrictions TERMINATION OR NON-ENFORCEMENT Common law

Fundamental change in conditions (=> no substantial benefit to dominant) Relative hardship: harm to servient greater by a considerable magnitude than benefit to dominant Statute: codifies some common law, specific circumstances Acquiescence: complaining party has tolerated pervious violation of the covenant Abandonment: complaining party has tolerated violations of the covenants by owners of other restricted parcels in the neighborhood covered by the covenant Unclean hands: complaining party has violated the covenant himself Estoppel: Owner of servient estate changes his position in reliance on the oral statement of dominant estate owner saying they wont enforce the covenant. Laches: if covenant has been ignored/ breached from substantial period of time (less time than prescriptive E) the court may find that unexcused delay in enforcing covenant prompted investment in reliance Marketable title acts: as w/ E many states have marketable title statues that terminate restrictive covenants if they are not re-recorded after a specific time Merger: if burdened/benefitted estates come under common ownership the covenants will terminate Release: all parties affected may agree in writing to terminate Prescription: open and notorious violation of the covenant w/o permission for the statutory period may terminate the covenants by operation of the statue of limitations Expiration in instrument (if covenant expires naturally) Violates law or public policy (includes racially based covenantsShelley v. Kramer) Language in instrument: Many subdivisions or condominium associations are subject to covenants that terminate w/in a stated number of years if not periodically renewed. Prescription. Open and notorious violation of the covenant w/out permission for the statutory period may terminate the covenant (SOL). EL DI v. BETHANY BEACH (519) (Dry town) Fundamental change in conditions (liquor sold nearby, brown-bagging), acquiescence/abandonment by change in zoning (allowing commercial) => change in intended character of neighborhood that renders benefits underlying the restriction incapable of enjoyment Unreasonable and inequitable to enforce restriction on alcohol sales BLAKELY v. GORIN (527) (Ritz-Carlton) Relative hardship analysis (best use law and economics policy analysis) Covenant impeding use of property in order to protect light and air = unreasonable, $ damages Statute: enforceable only when providing an actual and substantial benefit, not if harm is greater than benefit by a considerable magnitude Cite to changing character of area to invalidate covenant preserving light and air Only damages for loss of light and air COLORADO STATUTES Voids unreasonable solar restrictions Nothing based on race or religion Supreme Court voids modifications of covenants Prevents use of P for hazardous waste storage HOMEOWNERS ASSOCIATION Created by declaration filed by developer prior to sale of first lot

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Creates power to sue breaches of covenants Only owners (not tenants, family members) have right to vote CONDOS Created by a declaration with local office or registry of deeds Ownership interests/voting determined by size of unit COOPERATIVES Corporation owns building, individuals buy shares of corporation and lease individual units RACIALLY RESTRICTVE COVENANTS Generally deal w/ them by (1) statute; (2) cy pres; (3) rule against forfeitures; (4) or allow to fail. SHELLEY v. KRAEMER (Racially restrictive covenants) EPC claim: courts enforcing a racially restrictive covenant = state action under 14th Parties had already willing contracted for sale EVANS v. ABNEY (Racially restrictive park) Trust failed of essential purpose (whites only), reverted to heirs, permissibly closed park Cy pres would have allowed the state to keep the park open to meet general purpose of the gift (charitable), but found to not apply FAIR HOUSING ACT OF 1968: Bans discrimination on grounds of race, color, religion, or national origin in sale or rental of housing. Exception for single family and owned occupied buildings of 4 or less units. Damages: Compensatory + punitive (Intentional infliction of emotional distress?) Dual goals of discouraging discrimination and encouraging integration not met. CRITICAL RACE THEORY (CUMMINGS) 1) Racism is so pervasive so as to be nearly unrecognizable Need to expose racism where it exists 2) Challenge experience of white European Americans as normative standards Change storytelling and narrative 3) Attack liberalism and interest convergence theory Not enough for whites to tolerate minority advancement where it serves their own self-interest 4) Expose flaws in color-blind view of society Justice only from recognizing and changing societal willingness to tolerate racism

ESTATES AND FUTURE INTERESTS

STEPS 1) Classify present possessory estate. 2) Is there a future interest? 3) Is the future interest enforceable? a) State the title. b) Does the RAP potentially apply? FI cannot be executory interest that is uncertain to happen. c) If yes, is the RAP violated? Must be vested and closed for no longer than lifetime + 21 years. d) If yes, what is the remedy? Strike the title. 4) If yes, has the triggering event occurred?

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THEMES Ownership v. societal values Dead hand control v. contemporary circumstances Consolidation v. dispersal Feudalism to market capitalism NATURE Purchase: O to A. Limitation: and _____ Fee simple absolute: O to A and heirs; modern: O to A Life estate: O to A for life. Term of years: O to A for __ years. LIMITATION Determinable: ends early by own terms; until, so long as, while, during Before punctuation mark ending description of As estate Condition subsequent: interrupted if grantor takes action; but if, provided, on condition, however After punctuation mark ending description of As estate GRANTOR FUTURE INTEREST Fee simple: no future interest Fee tail, life estate, term of years: reversion (waits patient for natural end) FS determinable: possibility of reverter (waits for event to occur) FS condition subsequent: right of entry (right to interrupt if condition occurs) GRANTEE FUTURE INTEREST FT, LE, ToY to A (inherently limited estate) then to B: remainder Vested remainder: ascertained person (born and identified) and not subject to condition precedent Absolutely vested: O to A for life, then to B Vested subject to open: O to A for life, then to Bs children (B has one child) Vested subject to total divestment: O to A for life, then to B, but if B gets married, then to C Condition precedent: condition other than prior estate ending that must be met Contingent remainder: unascertained person or subject to condition precedent If condition is fulfilled and person born and identified, becomes vested remainder FS determinable: executory interest Shifting: title goes from grantee to grantee; O to A for life, then to B. Springing: title goes from grantor to grantee; O to A if and when A reaches 30. FS subject to executory limitation: executory interest REGULATORY RULES 1) Rule prohibiting creation of new estates 2) Rule against unreasonable restraints on alienation 3) Rule against perpetuities 4) Interpretive rule prohibiting waste of present estate 5) Prohibition on invalid racial conditions

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6) Rule against unreasonable restraints on marriage DEATH O to A for life, then to B for life, then to C. Title: A has PPE in LE, B has VR in LE, C has VR in FSA A dies after conveyance -> B gets PPE, C has VR in FSA B dies before A -> A has PPE in LE, C has VR in FSA C dies before A and B -> A has PPE in LE, B has VR in LE, Cs estate has VR in FSA REMOVING CONDITIONS O to A and heirs, but if A divorces, then to B and heirs Title: A has PPE in FSSEL, B has shifting EI in FSA A divorces -> A divested, B has PPE in FSA A dies without divorcing -> As estate has FSA, B has nothing VESTING OF CONTINGENT REMAINDER O to A for life, then to As first child if A graduated from law school. At conveyance, not in law school and no children Title: A has PPE in LE, 1st has CR in FSA A graduates -> A has PPE in LE, 1st has CR in FSA A graduates and has a child -> A has PPE in LE, 1st has VR in FSA ALIENABILITY Reversion/remainder can be sold to someone else MERGER Common law: same person owns LE and next vested interest but with CR in between Vested interests merge, CR destroyed 1. O to A for life, then to B for life, then to C A conveys LE to C -> no CR, B still has VR in LE 2. O to A for life, then to B for life if B has reached 21, then to C A conveys LE to C -> Bs CR and LE destroyed, C has FSA CONTINGENT REMAINDER DESTRUCTION Common law: if condition not met by end of preceding, CR destroyed, goes to next vested estate Modern: no destruction, moves onto next vested estate subject to condition being met O to A for life, then to B if B reaches 35. Title: A has PPE in LE, B has shifting contingent EI in FSA, O has reversion A dies when B is 19 Common law: Bs CR destroyed, O gets reversion to FSA Modern: O gets reversion then becomes O to B if B reaches 35. O has FSSEL, B has springing EI in FSA SHELLEYS CASE Same document, conveys a LE to grantee, AND a remainder that that grantees heirs => conveyance to grantees heirs is read as a conveyance to the grantee Common law: LE in grantee with remainder to grantees heirs becomes FSA in grantee

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Modern: abolished; grantees heirs have CR O to A for life, then to As heirs Common law: A has FSA Modern: A has LE, heirs have CR DOCTRINE OF WORTHIER TITLE Where inter vivos conveyance creates FI in grantors heirs, no CR O to A for life, then to Os heirs (O is still alive) Title: A has LE, O has reversion Can be trumped with express language

RULE AGAINST PERPETUITIES

To limit dead hand control, promote alienability (transferability), while preserving Os intent and liberty RULE 1) Future interest is void 2) unless it is certain to vest (or fail) 3) within 21 years after the death of some life in being 4) at the creation of the interest COVERED FIs Contingent remainders: O to A for life, then to B if B has gotten married Vested remainders subject to open: class gifts where some interests are vested and others are not O to A for life, then to As grandchildren (A has one grandchild) Executory interest: O to A while A serves in the army, then to B O to A and heirs; however if B marries, then to B. NOT COVERED FIs Future interests in grantor: reversion, possibility of reverter*, right of entry* May be limited by statute Vested remainders except class gifts (subject to open) STEPS 1) State the title. 2) Does RAP potentially apply? 3) If yes, is the RAP violated? 4) If yes, what is the remedy? Not whether the interest might vest and close but whether there is any possibility it might not REFORMS Wait and see doctrine: court will wait out perpetuities period to see if interest vests Cy pres: if conveyance has limitation greater than 21, reduce to 21 IF it would vest interest Uniform statutory RAP: must vest within 90 years after date of creation Only gifts or wills, not commercial transactions *Cut-off: some jurisdictions, possibility of reverter and right of entry void after 30 years of creation

E&FI RULES OF INTERPRETATION

1) Is conveyance ambiguous?

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If no, plain meaning governs. 2) Apply interpretive rules. Grantors intent Presumption against forfeiture Others Not absolute rules Use policy rationales: protect owners rights and security, protect possessor, facilitate market AMBIGUOUS CONVEYANCES WOOD v. FREMONT COUNTY (616) (Hospital) Presumption for fee simple absolute in favor of stability and alienability Insufficient evidence of grantors intent of FSD or FSSCS Limitations must use plain language and convey grantors intent to create FSD or FSSCS CATHEDRAL v. GARDEN CITY (619) Presumption for fee simple absolute even in charitable cases Court still found right of entry, but no reverter ` (Creditor prevention) Life estates can be conveyed by implication or explicit language as long as there is intent Limiting conditions on fee simple absolute void, unless granted to corporations Goes to unconditional right to alienate WASTE Voluntary: active trashing Permissive: neglect Ameliorative: increase value MOORE v. PHILLIPS (650) (Gma not taking care of property) Life tenant also has duty to not waste, other than normal wear and tear NEW ESTATES JOHNSON v. WHITON (626) (Heirs on fathers side) Rule against creation of new estates If ambiguous, must fit into existing category; heirs on the fathers side -> fee simple MA: one of few to allow FT but must be drafted consistent with rules ALIENATION Balancing utility/harm for restraints on alienation FSA: no restraint, repugnant to fee Lesser estates & charities: more readily restrained Term of years: T cannot sublet CATHEDRAL: found FSSCS interruptible with right of entry HORSE POND FISH & GAME Rule against unreasonable restraints on alienation (619)

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Factors include: duration, number of people affected, why restraint was imposed Covenants for gifts and charitable organizations cannot be dissolved even if conditions unreasonable MARRIAGE Donative transfer to prevent any first marriage: invalid Donative transfer to prevent some first marriage: valid unless unreasonable Donative transfer to prevent remarriage: valid if by 1st spouse and reasonable

CONCURRENT INTERESTS
Ownership shared simultaneously among more than one person/entity TENANCY IN COMMON Where two or more people simultaneously own P with no right of survivorship 1) Creation in writing: O to A and B as tenants in common 2) Each has right to possess whole 3) May have different fractional interests 4) May have inter vivos transfers 5) Descendible and devisable (other TC has no right of survivorship) OLIVAS v. OLIVAS (TC) (671) (Girlfriend) Only duty to pay rent to T not in possession if there is actual or constructive ouster Constructive ouster: joint occupation is impossible or impractical Voluntarily moving out is not ouster; remaining T has no duty to pay rent to leaving T CARR v. DEKING (TC) (674) (Farmland) One T has right to possess whole; therefore, can rent entire P without other Ts permission Other T has to accept terms of lease, even after death of lessor TC JOINT TENANCY Where two or more people own P with a right of survivorship Must be united in: time, tenancy/title, interest, and possession 1) Created at same moment in same written conveyance 2) Each has right to possess whole 3) Must possess equal fractions 4) Inter vivos transfer leads to severance and TC 5) Not descendible or devisable (JT has right of survivorship) CANTERBURY v. TAYLOR (COLORADO) Individual can convey to himself and others as JTs without straw man; intent not formalities Right of survivorship: if JT dies, interest transfers to other JTs in equal fractions Severance: JT severed if one JT transfers interest during lifetime By SPAM: sale, partition, agreement, and mortgage (in title theory states; CO is lien) TENHET v. BOSWELL (JT) (675) (Leased JT) One JT leases P without consent of second JT then dies Lease does not sever JT but ends upon death of lessor JT, surviving JT gets ownership without lease

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RULE OF INTERPRETATION If ambiguous, interpret as tenancy in common OBLIGATIONS AND RIGHTS Co-owners must share expenses, maintenance and repair If only one co-owner in possession: Rent to others? Generally, no duty to pay Ouster? If actual or constructive, pay rent TENANCY BY THE ENTIRETY Historic marital P: H had legal power to act for entirety; prenups and trusts to protect Ws P rights Dower: W had LE in 1/3 of Hs estate Curtesy: H had LE in all of Ws estate Old common law: marriage was feme couvert (from feme sole); H had full control Married Womens Property Acts: married women get same right to K and hold P TE: marital entity still controlled by H but W has right of survivorship About 20 states still have it, CO has recently abolished Elements: Legally married Partition only by divorce Interest of one cannot be sold, etc. without others consent ROS cannot be destroyed by unilateral conveyance Creditors cannot attach P to satisfy debts of only one spouse w/o consent SEPARATE PROPERTY During: each separately owns and manages P acquired before and during marriage Subject only to choice to intermingle and duty of support Divorce: equitable distribution of both Ps to achieve fair result based on multiple factors Including increase in value of separately owned P and debts incurred during marriage Death: dispose by will or if intestacy forced share depending on other descendants COLORADO: excludes P individually acquired by gift/inheritance and excluded by prenup Intestacy: get 50-100% depending on other descendants COMMUNITY PROPERTY During: P acquired individually during or after by gift, devise is separate; all other community Both have to consent to alienation/mortgage; fiduciary duty to community/other spouse Divorce: get own separate P plus half of community P, equitable distribution Prenups determining separate or community must have fundamental fairness Death: right to dispose of separate P and half of community

PRE-NUPTIAL AGREEMENTS Enforceable unless: Lack of voluntariness Unconscionable Insufficient disclosure of information (not fair and reasonable) Substantial injustice

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HOMESTEAD LAWS Protection for primary residence from debts of decedent spouse so long as survivor lives Can stay in home Limits in equity and law [CRS 38-41-201] KRESHA v. KRESHA (679) (Lease to son) Non-consented lease to son survives after W granted entire parcel in dissolution proceedings Similar to H leasing fee simple interest and W holding remainder SAWADA v. ENDO (682) (post Married Womens Property Acts) Group 1: TE same; H may convey entire estate, subject to Hs creditors and W's ROS Group 2: interest of debtor spouse subject to creditors, subject to ROS, except homesteads Group 3: no unilateral conveyances, creditors cannot reach interest or ROS Group 4: unilateral conveyances and creditors can reach interest and ROS Majority: group 3 so long as non-fraudulent; dissent: group 4 Separate Property Adopted by CO. During marriage Each spouse separately owns and manages property acquired before and during marriage, Subject only to (1) choice to intermingle (2) duty of support On Divorce Equitable distribution is subject to a wide range of factors such as economic need, status, rehabilitation, contributions of the parties, and sometimes fault (gives trial judge great discretion). A spouse may dispose of her P by will. Many states provide for a statutory forced share of the decedents estate, effectively allowing the widow or widower to override the will and receive a stated portion (usually one-third to one-half) of the estate.

On Death

CO revised statues: Marital property subject to equitable division, no fault jurisdiction, Intestacy (amount inherited at death): 50%-100% depending on whether other descendants Community Property During marriage All P acquired during the marriage, including earnings, is community P and is owned equally by both spouses. Analogous to a partnership [Most states allow spouses to change or transmute their property from separate to community P, and vice versa, by written agreement]. Both have to consent to alienation, mortgage On Divorce Equitable distribution is subject to a wide range of factors such as economic need, status, rehabilitation, contributions of the parties, and sometimes fault (gives trial judge great discretion). Each gets separate property + community (CA) Equitable distribution (AZ, TX, WA) On Death A spouse may dispose of her separate P and of the community P by will.

LEASEHOLDS
TYPE OF LEASEHOLDS

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Term of years

Periodic Tenancy

Tenancy at Will

Tenancy at Sufferance

Lasts for a specified period of time determined by the partiesset in lease. The death of either party does not terminate the tenancy. - comply w/ SOF; termination set in lease Renews automatically at specified periods unless either the landlord or the tenant chooses to end the relationship. - e.g. month, termination set by statute Unspecified duration, in theory terminate w/o notice but most jurisdictions require 1 month - Traditionally, death of either L or T terminates tenancy at will. A tenant rightfully in possession who wrongfully stays after the leasehold has terminated - Holdover T; short in duration until L accepts rent or evicts

Term of years: must comply with SOF; termination set in lease Periodic tenancy: renews at specific period; termination set by statute Tenancy at will: unspecified duration; in theory terminate at will but most require 1 month notice Tenancy at sufferance: holdover tenant, short in duration; L either accepts rent or evicts

Tenants and Landlords Duties/Rights Tenant Pay rent Repair [general upkeep + report problems to L; NO waste = dont remove fixtures] Obey other covenants or material terms of the lease [subletting, special repairs, etc] Obey law [noise, nuisance, etc] Relinquish possession Ls reversionary interest conflicts about occupancy

Landlord Right = Evict but w/ [summary] process Relet/find new tenant Duties = Mitigation (Sommer) - Even if T is breaching party

Laws on rent acceleration clauses and security deposits [781]

COLORADO TERMINATION Tenancy may be terminated by notice to quit in writing: 1 year or longer tenancy, 3 months notice 6 months 1 year tenancy, 1 month notice 1 6 months tenancy, 10 days TENANTS DUTIES Repair: based on common law obligation of life tenant not to commit waste Basic repair and upkeep No removal of fixtures; what cant be removed without substantial harm to P Contract/express agreement controls on repairs and fixtures Pay rent: for failure to pay Ls recourse depends on if T stays or goes If T defaults and stays: 1) Sue for back rent (and possession) 2) Summary process (judicial process) No self-help (even in CO)

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If T defaults and goes: 1) Accept surrender: look for new T Sue for back rent + damages (agreed fair market) + reasonable costs of finding new T No future liability for T 2) Refuse surrender and re-let on Ts account: look for new T Sue for back rent + (agreed new (reasonable) rent) + reasonable costs of finding new T Original T liable if new T fails to pay 3) Ignore, wait, and sue: dont look for new T Wait to end of term then sue for full amount, qualified by duty to mitigate Obey other covenants or materials terms of lease Obey law (nuisance, noise, etc.) SOMMER v. KRIDEL (774) L has duty to mitigate damages from defaulting T; burden on L to prove reasonable mitigation COLORADO MITIGATION L has duty to mitigate, at least in commercial leases Uses mitigation in calculating damages OCCUPANCY CONFLICTS Ts right to assign or sublet: if lease silent, T has right Assignment (entire term): T2 assumes T1s duty to pay rent to L L and T2 have privity of estate, primary liability L and T1 still have privity of K, secondary liability T1 and T2 also have privity of K *May be different if there are express terms Sublet (term portion): T2 pays rent to T1 who is still liable to L L and T2 have neither privity of estate nor K L and T1 still have privity of K, primary liability T1 and T2 also have privity of K, liability between *May be different if L2 expressly promises to pay L; L may get injunction to pay rent KENDALL v. PESTANA (758) (Assignment restrictions) Majority: where lease requires Ls consent for assignment, L may withhold consent arbitrarily Args: Freedom of ownership, freely bargained for K, stare decisis, L has right to increased market value Minority (CO): L cant withhold consent unreasonably; use commercial reasonableness Commercial Reasonableness: financial responsibility of assignee, legality of use, suitability of P for use Args: Unreasonable rest. against alienation, duty of good faith and fair dealing SLAVIN v. RENT CONTROL (763) No requirement of reasonable for L to withhold consent to assign/sublet in residential leases Later extended to commercial leases COLORADO Current trend to reasonableness, unless L negotiates for absolute right to withhold

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LANDLORD DUTIES Provide possession Common law and leases Includes covenant of quiet enjoyment Provide P that meets minimum standards of habitability Emerging in common law, regulations, statutes, leases Implied warrant of habitability (CO) COVENANT OF QUIET ENJOYMENT T has right of possession, not to be disturbed during tenancy L cannot deprive T of P during leasehold Dependant covenant: Ts duty to pay rent contingent on L not breaching covenant Implied term in every state by statute or common law Actual eviction: physical exclusion from possession Traditional: Entire rate abatement for actual eviction R2: partial rent abatement for partial actual eviction T sues L for termination, damages, injunction Constructive eviction: SING Substantial Interference with quiet enjoyment by Ls actions or failure to act; chronic problem Notice: T must give L notice and reasonable opportunity to fix Go: if L fails to fix after reasonable time following notice, T must vacate Partial constructive eviction: deprived use and enjoyment of portion of P (MINJAK) R2: deprived use and enjoyment by L or someone in Ls control (BLACKETT) MINJAK (782) (Dust and elevator shaft) Ts defense to not paying rent: unable to use 2/3 of loft due to Ls renovation and disruptive neighbors Court finds constructive eviction and grants rent abatement (still using 1/3 of loft) BLACKETT (785) (Cocktail lounge) Traditional: constructive eviction only when L interferes, not third parties Blackett rule (adopted by R2): L liable for third parties whose conduct L could legally control Probably not limited to only Ts or extended to all Ts Other third parties: only 2; duty not to permit nuisances and duty to control common areas IMPLIED WARRANTY OF HABITABILITY T has four options after breach, no need to vacate: Move out and terminate lease (rescission) Repair and deduct (if allowed by statute) Reduce rent or withhold until court determines fair rental value (separate account) Injunctive relief Remain in possession, pay rent, and sue for money damages Administrative penalties Criminal penalties Traditional: caveat lessee; L has no implied duty and T must pay regardless, except for latent defects Majority: implied warranty and Ls breach may affect Ts duty to pay De minimus v. material defect (what is habitable?) 1) Seriousness of defect and impact on habitability 2) Length of time

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3) Ls notice 4) Ts conduct 5) Can P be made habitable? No retaliatory eviction: Ts who report housing code violations cannot be penalized by L Satisfied by positive law (e.g., local housing code) or independent judicial conclusion Commercial leases have no implied warranty Landlord must be given notice and reasonable time to fix it Non-waivable and no assumption of risk in most states even through express terms Defect after lease commences subject to materiality inquiry CO allows T to bring private actn based on housing code (poss injnction, damages, sp enforcmt). JAVINS (792) (1500 housing code violations) Court held IWH in housing code regulations, equitable defense to nonpayment Historical, contract, and regulatory arguments BLACKWELL v. DEL BOSCO (COLORADO) No IWH based on stare decisis 2008 CO adopted IWH after municipal codes unenforced

REAL ESTATE TRANSACTIONS

Three step process: Pre-K stage: decision to sell, listing with broker, negotiations and offer Pre Sale Agreement signed Executory period: inspections, mortgage financing and loan application, appraisal and credit check, title examination, document preparation Closing, deed delivered Post-closing: warranties of title, title insurance issued, deed and mortgage recorded OFFER Precursor to Pre Sale Agreement; disfavored compared to PSA Contains: P description, purchase price, expiration date, signed by buyer May be enforceable but doesnt offer either B or S legal protections of PSA Trend to be enforceable (if essential terms included): in writing, uses brokers, Ks should be binding BROKERS Common law duties: fiduciary duty to represented party and none to other party except to disclose adverse material facts CO statutory duty for sellers: includes title, physical condition of P, environment hazards (adverse material facts Buyers: B may employ several, have no enforceable duties to S CO transaction brokers: represents neither side, responsibility only to deal itself Exercise reasonable skill and care, disclose all adverse material facts, account for all money received, assist in complying with contracts and closing PURCHASE & SALE AGREEMENT In writing Material terms: P description, intent to sell, price, closing date

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Promises: convey good title, inspection, accurate description, no material defects Signed Generally deed takes place of PSA after signing ORAL K ENFORCEMENT Part performance: partial payment of purchase price, take possession of P, make improvements Estoppel: reasonably reliable promise, reliance to promisees detriment, justice requires enforcement Constructive trust: fraud BURNS V. MCCORMICK (850) (Old guy asks for care in exchange for house) Housekeeping and support are not part performance; no enforcement of oral promise GARDNER V. GARDENER (854) (Black sheep brother tries to keep full title despite not getting loan) Land conveyed to brother as security for loan; no loan = brothers want P back Only oral agreement but part performance overcomes SOF to allow in parol evidence HICKEY V. GREEN (852) (Dirty double dealer) Oral promise to sell land plus deposit check and sale of current house requires estoppel

BREACH OF PSA (what constitutes a breach) Provide marketable title (S) o Unencumbered fee simple, free from reasonable doubt o No encumbrances or mortgages o Not based on claim of adverse possession o Not violating a zoning ordinance o Can be waived Refrain from any false statement of material fact about P (S) o Caveat emptor except: misrepresentation, fraudulent suppression, fraudulent nondisclosure o Ss false statement of material fact, known to be false, reasonably relied on by B, causes damage o Latent/patent defects Reasonable efforts to obtain financing (B) o Warranty of habitability (builder of new home) Remedies: specific enforcement, damages, rescission, lien on P JOHNSON v. DAVIS (859) (Liability for nondisclosure, fraudulent concealment) S claims to have fixed ceiling stains; Bs discover gushing water after signing PSA Old common law: caveat emptor, little duty to disclose Current: no false statements (misfeasance) but not liability for nondisclosure (nonfeasance) Here: liability for nondisclosure of latent material defects, fraudulent concealment DEEDS, RECORDING SYSTEM, & TITLE PROTECTION DEED Resolves disputes between B and S after closing Contents 23

Parties P description Statement of grantors intent to convey Grantors signature Cannot fail for lack of consideration Delivery Actual delivery typical but mere possession is not enough Present intent to transfer title + acknowledgement (notarized declaration)(generally) Constructive delivery also rests on intent CO: acknowledged and recorded deed is evidence of delivery Types Quitclaim: S conveys title, no guaranty that it is good Special warranty deed: S conveys own title since acquired, no defects prior to that General warranty deed: S conveys seisin, right to convey, encumbrances, QE, further assurances Present: breached, if at all, at delivery Seisin: own interest purporting to convey Right to convey: no restraints on alienation Encumbrances: no mortgages, servitudes other than those disclosed Future: not breached, if at all, until B is disturbed in possession Warranty (embodied in deed): will defend B if sued by someone with title Further assurances: will cure defects Quiet enjoyment: wont be disturbed by someone with legitimate claim of title MARKETABLE TITLE: unencumbered fee simple, free from reasonable doubt, no encumbrances or mortgages, not based on claim of AP (majority view), not violating a zoning ordinance BFP = bona fide purchaser is someone who paid money value and had no notice of the previous purchase of the same property [usually substantial pecuniary value, it does not have to be fair market value]. RECORDING SYSTEM Resolves disputes between 2 Bs after closing Purpose: state statutes to settle disputes between two subsequent purchasers Common law (first in time, first in right) inequitable Types (O to A, then again O to B; dirty double dealer) Race statute (rare): whoever records first wins Notice statute (1/2 states): B must be Bona Fide Purchaser (paid value and had no notice) to win over A Actual: B directly informed of As purchase Inquiry: B could have ascertained by inspecting P Record/constructive: if As deed was properly recorded Race-notice statute (1/2 states including CO): B must be Bona Fide Purchaser and record first to win over A (must have no notice of As purchase) Applications Wild deed: deed null if entered on the records by grantor unconnected to chain of title Estoppel by deed: grantor without interest cannot deny validity if later acquires interest Shelter: BFP can convey, even to third party, with notice of an earlier transaction

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Torrens system quasi judicial proceeding to determine title, incontestable (high cost, not mandatory) SABO (880) (Dirty double dealer) Race-notice L conveys to H before receiving patent from BLM, then to S after receiving patent; both recorded S wins; must follow chain of title BLM to L to S, L to H would not be in chain before L received patent This is weird because of deed by estoppel by which if one transfers property that one doesnt own and then come into ownership of that property it automatically transfers ZURISTRASSEN V. STONIER (Brother forged deed) Forged deed = void ad initio Possible arguments: estoppel (representation, reliance, detriment), waiver (right, knowledge, intent), ratification (full knowledge + intent) McCOY v. LOVE (889) (Fraudulently procured deed for mineral rights) Forged deed is void Deed procured through fraud is voidable Unless it has subsequently passed to a BFP, then too late to void MORTGAGES Promissory note: promise from borrower to repay lender principal plus interest Mortgage: additional promises from borrower (attached to P) Pay note, maintain homeowners insurance, pay P taxes, pledge P as collateral to secure repayment Title theory: lender holds title, borrower has equity of redemption, non-judicial foreclosures Lien theory: borrower holds title, lender has lien in P, usually requires judicial foreclosure Banks rights: foreclosure cuts off equity of redemption OR transfers title permanently Sell P to recover value of loan and can sue to recover difference (now often prohibited) Statutory right of redemption = allows the mortgagor to buy back the property for the price bid at the foreclosure sale for a designated period (often a year) after foreclosure. - Try to encourage negotiations b/w owner/bank (can occur before or after foreclosure) - Many states do not do this b/c it decreases the market value of the P at the time of the foreclosure sale since the buyer cannot possess the P immediately and, in fact, has no assurance it will ever be able to possess the P.

CURRENT FORECLOSURE PRACTICES 1) Borrower has right to bid 2) Public notice 3) Prohibition of deficiency judgments by bank against borrower (some states) 4) Judicially supervised sale (some states) v. bank power of sale (others) 5) Statutory right of redemption (for some period before foreclosure) 6) Negotiation between owner and bank FREMONT INVESTMENT & LOAN (84) AG brings injunction in quest to slow foreclosures and protect individual homeowners Bank practices must be affirmatively permitted by statute, not silently allowed => unfairness standard was not retroactively applied

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Subprime loans are considered unfair practices in violation of Consumer Protections Act and in violation of Massachusetts Predatory Home Loan Practices Act. An Injunction against foreclosing on these loans serves public interest.

INTELLECTUAL PROPERTY
Connections to RP: bundle of rights, non-owners rights, restraints on marketability, change over time Departures from RP: how to own an idea? How to exclude others from something intangible? TRADEMARK Name, symbol, or type of packaging that indicates the the source of goods or services Owners have exclusive right to use; particular good or service in a particular area To protect consumers from confusion of different companies using same/similar names To promote competition by protecting a firms reputation Distinctive under common law: relationship between mark and product considering: a) 1) Arbitrary or fanciful (Kodak) 2) Suggestive (Coppertone) 3) Descriptive (Holiday Inn) 4) Generic (computer) b) Protection turns on if mark has acquired secondary meaning (source identifying) Sources of law: Common law origins with many state remedies still available Common law: as long as use of TM continues; states: terms vary Loss by: abandonment, improper licensing or assignment, genericity Commerce Clause, then federal statutes extending state protection (Lanham Act) 10 years, renewable so long as used in commerce Federal causes of action: Infringement: likelihood of consumer confusion Injunction, Ds profits, damages sustained by P, costs of action, treble damages for bad faith Dilution: blurring or tarnishment of famous marks Injunction, damages only if willfully traded on the Ps goodwill in using the mark State cause of action: exclusive right but no independent cause of action Claim under state unfair competition law Passing off and misappropriation of a distinctive mark QUALITEX (189) (Dry cleaning pad) Lanham Act: any word, name, symbol, device, or combination thereof Common law: mark had acquired secondary meaning Functionality limitations: prevents others from using features essential to product use/purpose COPYRIGHT Owners of original works of authorship fixed in a tangible medium of expression have exclusive right to: Copy, distribute, perform, or display; publish; make derivative works Life of the author plus 70 years; corporate: 120 years after creation or 95 years after publication Then enters public domain Federal law: Constitution, Art. I, 8, Cl. 8; federal substantially preempts state FEIST (195) (Phonebook)

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Facts not copyright-able, but compilations can be if sequence is original Functionality limitations: only so many compilation sequences can be original SUNTRUST BANK V. HOUGHTON MIFFLIN CO. GWTW TWDG Parody = fair use? Balancing between property rights and speech rights Promote the progress of science and the useful arts Purpose and character of the right Nature of the copyrighted work Amount and substantiality of the portion used Effect of the use upon the market/value of the original work PATENT Grant of a property right to inventor, differs from TM and copyright Federal, exclusive right for: 1) Machine, method, composition 2) Novel 3) Non-obvious 4) Useful 20 years from date application was filed, extensions may be available Effective only within US, territories, and possessions Types: 1) Utility: who invents or discovers any new and useful process, machine, article of manufacture, or composition of matter, or any new and useful improvement thereof 2) Design: who invents a new, original, and ornamental design for an article of manufacture 3) Plant: who invents or discovers and asexually reproduces any distinct and new variety of plant MOORE v. REGENTS (from earlier) Patients have no P interest in removed tissues after signing consent Doctors have fiduciary duty to disclose future uses of tissue (informed consent) Policy: encourage scientific innovations (using donations, not sales) and informed medical decisions

TAKINGS
Principle: bar government for forcing some individuals to bear whole societys burdens Fifth: private P cannot be taken for public use without just compensation Fourteenth: state cannot deprive any person of P without due process Questions: Who is a person (for Fifth protection)? What is private P? What does it mean for P to be taken? What counts as public use? What is just compensation and when is it due? Types: Eminent domain: Fifth power to take private P for public use with just compensation Direct condemnation: government sues individual to take P Inverse condemnation: individual sues government for taking without just compensation

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Government taking types: Government condemnation: explicit takings, i.e., taking home to build highway Regulatory takings: not intended but has same/similar effect, e.g., statute preventing coastal development or diminution of economic value of P Remedies: compensation or terminate regulation and pay for damages while in effect Arguably not a taking when advances legitimate government interest and owner retains some viable use Low rationally related standard of review KELO (1074) (Blighted area) Intersection of public and private interests but economic development can be a public use KENNEDY: only if public benefits outweigh private use OCONNOR: only if Ps nature justifies taking (blight) and no alternatives THOMAS: only if fully public ownership, use by public, or common carrier PENN CENTRAL (1108) (Historical landmark) Ad hoc test for regulatory takings: 1) Economic impact of the regulation a) Reasonable interference with investment backed expectations? Only after historical landmark declaration b) Remaining uses/diminution of value? Still maintain current functions 2) Character of the government action a) Physical invasion? No, only airspace b) Public good? Yes, preserves spirit of neighborhood, etc TELEPROPTER MANHATTAN CATV CORP. Economic impact: minimal, reasonable Character of action: physical, public good Physical invasion => taking => requires compensation Comparison to mailbox, etc, seems forced Taking from a to give to b? INDIAN TAKINGS

Property under the 5th amendment recognized title is compensable under the 5th amendment could be recognized through treaty/statute/executive order aboriginal title must pass through federal gov't first (must be sanctioned by federal gov't) => without government recognition nobody can obtain title recognized by the 5th amendment
TEE-HIT-TON (109) (Alaska timber) Indian right of occupancy non-compensable under Fifth; not private P Especially since tribe had not been specially recognized by Congress Remedy needs to be political solution through Congress Mere possession does not constitute ownership for purposes of the 5th A. Alaska Native Claims Settlement Act (1971) $1B to extinguish aboriginal title in AK SIOUX NATION (114) (Black Hills subsistence rations)

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As trustee of Indian lands under Treaty of 1851, US must make good faith effort to award fair equivalent of recognized title Did not, was a taking without just compensation Indians = extraconstitutional entities

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