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I. Acquisition of Property
-What are the different ways of getting a property interest? Can be through discovery, capture,
creation, adverse possession, etc. Courts may decide to give person a property interest in
something that is not land, such as an expression of an idea. Concerns: fairness (how much
work/creativity was put into it); incentives for certain behaviors; whether resource is limited
(maybe public should share); changes in technology (do we need new rules, or can we apply old
ones); whether legislature should create the right, or court; other types of remedies that are
available to fix the situation.
-When there is a property right, what should court do to protect it? What rights involved?
Concerns: the type of property interest (may be different for land vs. computer system); who
should bear costs/burdens; whether there is injury (right to exclude all others regardless of
injury?); right not to be excluded

Johnson v. MIntosh

P appealing decision in favor of D. P claimed ownership of land based on two grants from the
Indians. The D claimed a later grant by the United States govt to same land.
Rules and Reasoning
Discovery gave the United States an exclusive right to appropriate (through purchase or conquest)
and use land occupied by the Indians. Indian inhabitants have right to occupancy only; have no
rights of absolute title. Discovery was relation between different European nations to deal w/
property rights.
-rights of discovery v. rights of conquest-mixed here
-right of occupancy-does this mean anything for the Indians
-first in time claims-Johnson actually had best first in time claims-prejudicial treatment of
Indians, their use of land
-labor theory-Indians had different way of using land, Euro view that cultivating/changing land
gives ownership
-**possession and ownership not same!! Just an aspect
-cannot transfer a right you do not have (chain of title); but see recording section

Pierson v. Post

Post was pursuing wild fox on uninhabited, un-owned land. Pierson killed the fox. Post sued,
won, Pierson appeals.

Rules and Reasoning
Pursuit alone does not give the pursuer right to possession of a wild beast. A person must deprive
the beast of its natural liberty by trapping, mortally wounding, or killing and capturing the
animal. This shows the labor that went into the capture and gives he that succeeds most in that
labor the right to possession. Rule preserves peace, clarity.
Should have asked sportsmen what the answer should be (custom). Decision should encourage as
many as possible to hunt and kill foxes not deter them. Thinks if hunter is within reach or has
reasonable prospect of capture gives right to animal.
-labor theory-how much labor is enough to get property interest?
-first in time-but what is more relevant, seeing, killing/wounding? Here it is wounding.
-bright line-establish a clear rule for such disputes
-would incentive really work here? Not clear

Popov v. Hayashi

The baseball landed in the webbing of Popovs glove, but was not clear if it was secure. Crowd
descended on him (caught on camera), engaging in illegal conduct. Popov lost ball at some point,
we cannot know if he would have retained it. Hayashi (who committed no wrong in mob) saw the
ball and put it in his pocket. Popov looked for ball when he got up and wanted it back. Popov
filed a suit.
Rules and Reasoning
Hayashi had possession, Popov had pre-possessory right. Both had an equally valid right to the
ball, cant know if Popov would have held on if crowd did not interfere. Sell the ball and split the
-equity outcome, vs legal outcome
-possession must be ambiguous to apply to many different situations, no clear definition
-incentive for order-would it work?
Shared Resources
Limited resources can be captured because we want them to be used. However you must use
reasonably to protect the resource. Or instead of capture to get ownership, you could decide that
all applicable land owners own the resource, or that it is owned by govt. Difference btw
ownership of land and ownership of what is above and below it.


Intl News Service v. Associated Press

INS and AP, are competitors in gathering and distributing news for profit to newspapers in US.
INS admits to using AP news from bulletins and early edition newspapers for the purpose of
selling it to INS clients, either bodily (same writing) or rewriting. INS appealing losses.
Rules and Reasoning
INS cannot sell the AP news because among these competitors, news is a quasi-property, and
release to the public does not allow use for any purpose. News is common property to the public
after its release by a news gathering organization. This appropriation and sale is an unauthorized
interference with AP and diverts profits from those who earned it to those who have not.
-why protect, and how long?
-not just saying APs expression of the news should be protected; they have some kind of
property right in how the actual facts are used (for a certain time)
-how creative? This isnt necessarily creative, but it is the product of hard work the others didnt
-policy: incentives to have reporters, do good research

Cheney Bros v. Doris Silk

P makes silks with different patterns every season. They make many each season, not knowing
which will be popular. D copied Ps popular silk pattern and charged a lower price. P brought
complaint with this as injury. D appealed.
Rules and Reasoning
No cant copyright pattern, because property is limited to chattels which embody ones
invention. Imitation drives competition. It would be a monopoly if the govt granted exclusive
ownership of the structure or plan for something, it would give that person too much power over
-Different from INS case? Or should this have come out differently?
-rule different now: CAN copyright patterns

Rural Telephone v. Feist

Rural is a monopoly for one area, gives phone service and must make a phone book. Feist makes
phone books and wants to use Rurals listing. Offers to pay, Rural refuses, Feist uses anyway and
adds to the most of list through own research. Both books free, compete for yellow pg ads.

Possible outcomes
Rural has property interest

-compensatory relief (Feist cant use unless researches each listing)

-punitive relief (Feist punished for using when Rural refused)
-injunctive relief (Feist cannot use in future)

Rural has no property interest: Feist can use w/o pay

right to exclude

Rural must sell listing to Feist: property right w/o total

Rules and Reasoning
No property right, Rurals book not creative enough to be protected by copyright
-unfair business practice vs. property interest violation: when do we pick what it is? Similar to
INS case

Intellectual Property Protections

-protects creative expressions of ideas
-a novel, nonobvious, useful product, original and independently created
-words, symbols indicating source of product or service
Results of increased protection?
-increase in litigation-must protect right
-fewer developments made from existing products trying to improve things that might be
-satisfaction of consumer interests has gone down

Virtual Works v. Volkswagon

Virtual Works bought the domain name, knew that the domain name might be mistakenly
identified as Volkswagon and that Volkswagon might want to pay to buy it in the future. When
Volkswagon expressed interest in buying it, Virtual Works contacted Volks with info that they had
24 hrs to make an offer; otherwise would go to highest bidder
Rules and Reasoning
Virtual Works did act in bad faith because they knew the name was similar to Volkswagons
famous VW mark and intended to profit from its sale. Court decided domain names are not
exactly applicable to trademark protection, but there is still some protection if the use is with bad

-purpose of act was to protect consumers from confusion. Do they need this protection? How
costly is it?
-cybersquatting (register domain name based on famous trademark with intent to profit or dilute
name), parasitism (register similar names and use them in ways that tarnish marks reputation;
intend to benefit from fame of the mark, right?), poaching (register similar names to spread
unfavorable information about a group)
-common problem of extending property law into a new area. Is it just like before, or a brand new
territory where first in time gets benefits?
Property in Ones Persona
-b4 1950s celebrities could not assign use of their likeness or name. The idea is they should be
able to benefit from their own fame, assignable during life and descendible at death til 50 yrs
after (then public domain).
-why the change? Technology, can get so close that consumer cant tell the difference, gets
confused, and has greater commercial utility. Value of their persona is diluted when others are
able to use it. Right to use and right to exclude others.
-right to say no; right to transact with persona, license it etc; transfer in death to others
-policy questions-worth it to have extra litigations to protect those who are already famous and
rich? What about people having to now protect image to prove that they didnt intend for
someone to use it?
-CA Civil Code 990-lays out requirements for retaining rights to persona, transferring it

Moore v. Regents of U of CA

Moore had spleen removed as treatment for leukemia. Doctors did not tell Moore that the cells
they were removing were unique and of commercial value. Doctors received patent for cell line
made from Moores cells and market for this research could go into billions. Moore sued for
conversion, failure to disclose, etc.
Rules and Reasoning
Moore did not and should not retain an ownership interest in the removed cells because precedent
and statute do not support such a property interest, and the informed consent requirement protects
the patient adequately. The allowance of such a possessory interest for a patient would deter
researchers and create too many tort liabilities. Further, the Legislature is best suited to make
such changes, not the court. And the disclosure obligations protect patients rights without
hindering research or harming innocent parties. Slippery slope policy argument.
-Moore had a right to do with his own tissue whatever the researchers did with it. Scientists
cannot have a right to exploit a patients tissue for their sole economic benefit. Organs and tissue
can already be sold for research (according to statute). The liability for nondisclosure is not
enough because of the very high standard to prove it. Plus, patient has only right to refuse
consent, not to grant it for payment. Also does not hold liable those who may exploit tissues
without direct relationship to patient and need for disclosure. No need to allow slippery slope.
comparison to right to persona (a property right in ones identity), right to privacy (often used to
protect ones body without a property right)

-statutes can be interpreted very differently

-how many property-like rights make something protectable by property law?
-what about limiting property rights (ex: to sell) while still acknowledging property interest
-**conversion: civil side to crime of theft; trespass to chattels: interfere w/ private property w/o
taking; misappropriation: either one, usually conversion-requires property right

Right to Include/Exclude
Jacque v. Steenburg Homes

D moved mobile home over Ps property after they refused. Awarded punitive damages (nominal
damages $1)
Rules and Reasoning
-right to exclude is one of essential rights of property. If the state did not protect this, even when
there are no nominal damages, it has less value and meaning.
-protection by state prevents people from using vengeance to resolve problems
-right to exclude even if the trespass doesnt hurt you at all-bright line rule (dont have to find
how much inconvenience, etc)

State v. Shack

Farmer claimed that govt aid workers were trespassing when they wanted to talk to migrant farm
workers in their living quarters, not with farmer present or in place he allowed.
Rules and Reasoning
-court found there was no trespass at all b/c workers were giving aid per statute helping migrant
farm workers. Cannot violate anothers rights in protecting your own property. Farm workers are
unique population, under unusual circumstances-living at job.
-law prevents occupants from contracting out of certain rights
-limitations on right to exclude (civil rights, rent controls/eviction rules, adverse possession)
-necessity can justify entry onto private land
-right to exclude from public land? (crazy/homeless people)
-right not to be excluded

Intel v. Hamidi

Former Intel employee sends anti-Intel emails to current workers through Intel intranet email
system. Would delete from list if person asked. Caused no physical/functional damage. Intel
claimed trespass to chattel.

Rules and Reasoning
CA supreme court found no trespass to chattel for electronic comm system if no damage (diff
from trespass on land).
Burden should fall on Hamidi to deal with costs of his activities, not Intel. Email system is
intranet, should be able to control own system that they pay to maintain.
-right to exclude different for different types of property
-who should bear burden of costs (externalities)
-policy implications for usefulness of internet, email communication
-do we need a property solution, or are other remedies available? Legal remedy needed at all?
Adverse Possession
-Reverse side to right to exclude; you must exercise that right to avoid adverse possession
-you must be a trespasser to get adverse possession
-owner must use action of ejectment to get AP off land
-quiet title- using same statute to acquire property as a person would use to eject trespasser,
officially changing the title (not necessary to quiet title to be owner)
-Policy behind it? Good to put land to use, improve it; moral connection to property (true owner
does not have it, AP does); simplify disputes
-AP against govt not allowed

Required Elements

Actual Entry
-starts the statute of limitations running
-disability of O an issue
Open and Notorious
-would have put owner on notice
-use as the true owner would
Adverse and claim of right
-deed/written instrument (color of title) helps, will allow constructive AP (APing more than you
used if deed included it)


Continuous for statutory period

-tacking successive owners, requires privity
-if abandoned/interrupted, the statute of limits begins again
-it is exclusive, AP acts like legal owner
-mindset: objective, good faith, or bad faith


Van Valkenburgh v. Lutz

In the course of using his property, Lutz used part of another lot that he did not own, for thirty
years. He planted a garden on it, built a shed/house, and created a pathway to his land (beg 1928).
When the lot was sold and claimed by Ps (1947), Lutz admitted their ownership but claimed
prescriptive right to use path and won. Later Ps sued for removal, and Lutz counterclaimed for
title to the whole lot by adverse possession.
Rules and Reasoning
NY Statute requires that AP enclose the land and improve/use it all. Must show claim of right
(hostile). Found that Lutz did not intend to claim lot as his own, did not use whole thing.
Enough of lot was occupied/used as a true owner would. His length of occupation shows claim of
title (intent irrelevant).
-role of intent, APs mindset as opposed to length of occupation alone proving claim of right
-more to prove if there is no color of title
-problem of notoriety-how much notice required? Marengo Cave v. Ross case-when should O
realize this property is being used, and when is it understandable not to notice?

Manillo v. Gorski

Gorski added onto their house, encroaching on the land of Manillo. Gorski did not realize this
and thought house was within own boundaries. Manillo sued; Gorski claimed adverse possession;
Manillo claimed that possession was not of hostile nature b/c it was by mistake.
Rules and Reasoning
The mistaken possession does establish a claim of title because the material elements are there, no
need to examine intent. The court will not assume the true owner knew of the small encroachment
of a common boundary; the owner must have actual knowledge for possession to be open and
-rejected Maine doctrine (must knowingly take anothers land) in favor on Connecticut doctrine
(intent irrelevant)
-equity solution-if not open and notorious, O could be forced to sell land to AP for fair price
-oral agreement btw neighbors can hold if kept for long time
-what we expect of owners: either actual knowledge (positive, can include inquiry notice) or
constructive knowledge (reasonable person should have known)

Howard v. Kunto

Kunto lives on a property west of the Howards with one lot in between (Moyer). Several people
had lived on Kuntos land before and had passed down the title since 1932. A previous survey had

confirmed the boundaries of the deed. However, the deed was actually for the land to the west.
Moyer held the deed to Kuntos land, and Howard to Moyers. Howard and Moyer sold each
other the deeds, and Howard claimed ownership of the land the Kuntos lived on. Kunto had lived
there less than one year at time of action (1960); the home was used for summer occupancy by all
Rules and Reasoning
Summer occupancy does not defeat the continuity b/c it is in accordance with ordinary use of the
land. Kunto can use the time the land was possessed by all successive owners b/c this would ackn
their valid claims of right under privity.
-tacking-two types. First is tacking on a portion of land (AP) if you have color of title. Second is
tacking on occupation time of successive APs if there is privity.
-privity-a close connection between successive APs suggesting they were acting as true owners,
makes it easier for present AP to get over statute of limits
-continuous requirement-the O must be able to tell at any time that there is an AP there, must be
able to identify who it is so they can file motion for ejectment

Hypotheticals about statute of limitations changes


Tacking APs
-If B takes land wrongfully from AP, AP has a claim against B (even though still a trespasser).
When AP gets B off land, that amount of time that AP was gone is tacked onto the statute of
limits. Why? Not open and notorious for that time (a compromise.)
-when is statute of limits interrupted? Whenever O gets AP off land and documents it.
-If AP abandons and B comes in at same time, can B tack APs time? NO-no privity
-an AP can sell their accumulated time, the buyer can tack it on (this is a very risky buy, but
highly discounted from actual price)
Tacking Owners
-changes in owner do not matter. Only thing that matters is when AP had actual entry
-if AP enters when O is owner, O dies and B becomes present owner with future interests for Cdoesnt matter. Stat of limits same. BUT C can sue B for wasting the land.
-if AP enters when B has life estate, future interests in C, AP can only get the life estate. After B
dies, stat of limits begins again, now against C
-must exist at time of actual entry. Subsequent disabilities are irrelevant. No tacking of
-we usually interpret statutes on this to mean that the AP must last through the full stat of limits,
or a certain time after disability ends, whichever is longer
-if O dies, disability ends, and AP has to last 10 years (or whatever statute says) before owning it.
Disability of heirs is irrelevant!
Hypos about Constructive Adverse Possession
-Constructive adverse possession uses color of title to adversely possess land, only part of which
was occupied

-O lives on the front 60% of his land. AP moves into the back 40% with color of title. After the
stat of limits, AP tries to quiet title. Since both AP and O did not throw each other off, they get to
keep the land they were occupying. The color of title is irrelevant and does not hurt APs showing
of exclusivity.
-X and Y own two contiguous lots, 1 and 2, and Z sells a deed for 1 and 2 to AP. AP moves into
lot 1, and later tries to get 2. Constructive ap does not work b/c Y had no notice!

II. Estates-Present Interests

Four questions to consider for each type:
1-what does it mean, what words trigger it?
2-How do you create one? What words to you use in drafting; how to create them when words are
3-Legal implications, consequences?
4-How do you undo it and free the subsequent owners from limitations?
Escheat-person who owned it did not provide for it, ran out of heirs, then it goes to the govt
Intestate-no will, people who inherit by state law (not until person died). A default statute if no
Testate-having will, people who inherit based on will
Inter vivos-conveyance during life
Testator-person who wrote will
Heirs-undefined, do not become heirs until the person dies (A and his heirs means
testate/intestates after A dies) Living person has no heirs.
Pur autre vie-measured by someone elses life
Forfeiture restraint-if anyone tries to sell, land will revert
Disabling restraint-if anyone tries to sell, sale will be void
Vested remainder-we both know who remainder will go to, and that no other conditions exist for
them to get it
Contingent remainder-something must happen or be done before vesting

Fee simple absolute

What is it?
-to A and her heirs to A forever to A
-Today we see to A to mean As heirs as well; previously meant only a life estate. Our
presumption is different now, presume that you meant to give everything you have and not hold
back any rights. But best to use cleanest language.
-no separate future interest; later on you can change it to another type of estate
-does not mean you have every single right-you must prevent adverse possession, and cant hurt
anothers rights, etc
-utility-we believe grantors should be able to control land, but not when you use land to harm
others or control them too much through defeasible estates
How do you create one?
-must give all the rights to someone; none can be leftover. If an illegal restraint is attached, the
FSA will stand and restraint is void

Legal implications?
-has all legal rights, so holder can do anything legal with it
-restraints on alienation cannot coexist w/ it
How do you undo it?
-F.S.A. holder can create any other type of estate

Life estate

What is it?
-triggered by to A for life
-future interest that you keep is a reversion-what sort of estate will it become? A fee simple
absolute. You can deploy it again, so whatever you want with it.
-Reversion-if not every right has been given, all interests must go to someone, so you still have
that interest (use word reversion, not reverter!)
-Remainder-future interest in a third party, they get it instead of you
-that interest is really gone, different from landlord/tenant (maybe could get it if they were
wasting it though) this is NOT a contractual right to use the land.
-you can sell it, but only lasts as long as the person for life-only can sell the rights you have
-if there is a gap btw life tenant and remaindermen taking interest (funeral hypo) reversion to
grantor for that time
How do you create one?
-usually want to know who remainder will go to, will say to A for life, and then to B
-language like for use and benefit can be a life estate but we tend to presume the largest grant
possible when language is ambiguous, so this would be FSA or a defeasible estate if there is
Legal implications?
-both forfeiture and disabling restraints are illegal for defeasible estates, but forfeiture is ok for a
life estate. Why? Give life tenant incentive to make good business deals, protect creditors.
-when can life tenant use the land as collateral? Anytime, but creditors might not want it if tenant
is very old (will die soon)
-valuation of life estate and remainder-must consider present value of money discounts. The
younger the life tenant, the greater share of the total asset value they get at present if estate is
-insurance for damage goes to life tenant, not to remaindermen
-waste-to determine if future interest holders can do something, must compare the interests of
each (contingent has less power than vested). Remainder will argue: Permanent harm, taking of
limited resources (that were not being mined before, or taking too much), possible APs. Life
tenant will argue: positive improvement or no permanent harm.
-reversion interests are transferable
How do you undo it?
-can get together all the interest holders and have an F.S.A., but remainder must be vested first
-if either party is wasting, can get court to take their interest
-when life tenant dies, remaindermen have F.S.A.


White v. Brown

Mrs. Lide left ambiguous will, giving house to her sister in law to live in and not to be sold.
Was this a life estate w/ remainder to other heirs or a fee simple absolute with an illegal restraint
on alienation?
Rules and Reasoning
Court presumes against partial intestacy (person got rid of all rights), and against a life estate in
favor of f.s.a.
It is a life estate; the restraint is the key element of will.
-policy-make people clear when writing wills. But holographic will writers might not read this

Baker v. Weedon

Will left all property to Anna, then to her children; if none, to his grandchildren at her death.
Created a life estate for Anna, conflicting interests btw her and remaindermen. Land value rising,
she wanted to force sale b/c of waste.
Rules and Reasoning
Must consider waste and necessity; most of all the best interests of all parties involved.
-conflicting interests btw life tenant and remaindermen. Life tenant wants to maximize current
value and use it, remaindermen want to realize maximum long term potential.
-affirmative waste (voluntary acts that may reduce value) vs. permissive waste (failure to act,
negligence). But economic waste isnt necessarily legal waste.
-would have been better to make a trust for Anna. Trustee would hold f.s.a.

Fee simple determinable

What is it?
-possibility of reverter in a fee simple absolute
-future interest is separate if the restraint is violated
-property will revert automatically to grantor if violated, says it will revert to grantor
-given to grantee so long as condition remains unbroken
How do you create one?
-language should create a time limitation; the moment the condition is broken, the land reverts
if ambiguous, depends on what you are more concerned about; the present use and time limits, or
the future consequences

Legal implications?
-you can adversely possess against the right, the moment you start violating you are adverse-other
person might not know, but court could still think its open and notorious. Dangerous for the
grantor, could lose the right.
-but where is line to be drawn-how do you know exactly when they violate it, even language
could be interpreted differently (smoking). We can try to look at grantors intent (very difficult);
the future holders interests, and the present holders right to use the property.
-future interest cannot be transferred by common law; but many states changing. But future
interest is not as strong as a life estate remainder; the reverter is only a possibility (like a
contingent remainder)
-as future interests becomes more like property, it can be taxed, estimated, compensated for
How do you undo it?
-get the future interests from the grantor to make an FSA
-AP against that future holders right by breaking condition

Fee simple with conditional subsequent

What is it?
-right to re enter the property if condition is violated
-gives all property rights to the grantee, with a right to do something if a forbidden right is used
How do you create one?
-not limited in time; given forever. If condition broken, the grantor MAY decide to do
something about it
-if ambiguous, depends on what you are more concerned about; the present use and time limits, or
the future consequences
Legal implications?
-adverse possession-clock begins ticking after grantor uses right of entry (but if takes too long,
AP could argue for equity; some states of stat of limits on using the right of entry, ie CA)
-can sometimes be a stronger limit on the grantees conduct than FS determinable (cant AP as
-as future interests becomes more like property, it can be taxed, estimated, compensated for
How do you undo it?
-get the future interests from the grantor (transfer to 3 rd party if allowed, or give rights to the
-adversely possess future right-but very hard to do, future holder must use right of entry

Fee simple with executory interest

What is it?
-Wont be around to monitor, the third party has power to take the land
-similar to the determinable form, even if language is like condition subsequent
-to A, but if a does not., to C
-grantor may decide to give interest to a third party if they will be more diligent about the
condition being met

How do you create one?
-give the future interest to a third party who divests someone else
-comes after vested remainder (legal or possessory)
-similar to FSD

Legal implications?

How do you undo it?
-rule against perpetuities


Cases on Defeasible Estates

Mahrenholz v. School Trustees

Huttons conveyed land to school district for school purposes only, otherwise revert to grantors.
Huttons tried to sell their future interest to a third party. But did their heir still have the right? He
first gave his rights to Ps, then Ds. Who has the future interest? School stopped holding classes
and changed land to storage; did they violate condition?
Rules and Reasoning
-Future interests in defeasible fees cannot be sold or transferred but can be inherited. Heir had
future rights.
-Depends on whether it is FS determinable or FS cond subs whether or not heir could have
conveyed the land to Ps. If it was FS cond subs, he only had the future interest, and could only
give that to the Ds.
-the words only and revert together suggest FS determinable-a violation triggers a mandatory
-what does each party want to happen; this will determine the way they characterize the events
-not always clear if condition was violated
-in many states, future interests are treated like a thing, can be transferred.

Mountain Brow Lodge v. Toscano

Toscano gave land to lodge for lodge use only, with a restraint on sale. Ps claim these are both
illegal restraints on alienation.
Rules and Reasoning
-restraint on sale is void, but what about the restraint on use? Majority upholds this restraint, but
dissent says it is no different from the restraint on alienation.
-incentives to give land to charities; person wants to make sure donation is used for that charity
-restraint on use does not always make land unmarketable, but can have a strong effect


Ink v. Canton

Inks gave FS determinable to city of Canton for Ink park. Later state took most of land for
highways and compensated the city. Ps want some of that money.
Rules and Reasoning
Not fair to give all money to either party. Grantor retained some rights; grantee did not break
condition on purpose. Decided that city must use money for park purposes; grantor retains poss of
reverter in the money. But what if $ is not enough for a new park?
-majority rule is that grantee gets full compensation. Why? The point of the grant was to compel
the grantee to meet the condition. If they are forced to violate it, there is no need to compel them
or punish them.
-compare to Palm springs case-they started the eminent domain proceedings, so they violated the
condition themselves. They lose it all.
III. Estates-Future Interests

Interests in the Grantor

-when there is a contingent remainder, there is a reversion (life estate can end before death); after
reversion, O has FS subject to EI, the former contingent remaindermen have an EI
-a vested remainder wipes out any reversion

Possibility of Reverter

Right of Entry
If these two are transferred, they retain their names. O transfers right of entry to X-still called
right of entry. But if X has executory interest and coveys to O, still called executory interest.
Interests in Third Party
-when stating the title before RAP, apply the given facts first
Contingent remainder
-there are precedent conditions to vesting, and/or the remaindermen cannot be identified; once
these are fulfilled, the remainder becomes vested
-to A and heirs-heirs have no future interest
-to A for life, then As heirs-heirs have a contingent remainder
-to A for life, then to B if B does-B has contingent remainder
-there can be two contingent remainders to A if a does, but if not, to B
Vested remainder
-happens after life estate
-vesting legally is NOT same as vesting in possession

-can only be followed by executory interest unless the vested remainder is in a life estate (a
remainder in FSA can follow)
-to A for life, then to B or to A for life, then to B, but if B
Absolutely vested
-not subject to open, no precedent or subsequent conditions to be met
-distinguish legal vesting from vesting in possession
Vested subject to open
-future interest in a class, at least one member of which exists; if more enter the class, they will
have a vested remainder subject to open also and remainder will be diluted
Vested subject to divestment
-there are subsequent conditions that must be met
-means it is subject to an executory interest
-to A for life, then to B, but if B does
Executory interest
-to A for life, then to B, but if B does not.then to C. C has executory interest following Bs
vested remainder.
-must divest a vested or possessory interest
-works like FSD
-vests only in possession
-problems arise when interest is in a class of people (As children). It is subject to dilution or
partial divestment as more enter the class.
-if conveyed back to O, its still called executory interest, not reversion/possibility of reverter.

Swanson v. Swanson

-life estate in trust was made, with remainders to the children. Two conditions-life tenant had
power of appointment, and if child died, their living children would take their interest. But when
does the child have to die for the interest to be vested? Confusing survival language.
Rules and Reasoning
-the court assumes in favor of condition subsequents, so remainder is vested. Child who dies
before life tenant (and 2 conditions not met) still retains interest for heirs.
-important to be clear about survival language-must survive whom?
-adults may adopt children at any age (could be other adults)
-if B has vested remainder and is never divested, then Bs heirs get it even if he dies-pay attention
to when it vests! What are conditions, are they precedent or subsequent?
Doctrine of Destructibility
-Traditional rule governing contingent remainders-helps us get an FSA as soon as possible.
-ALL contingent remainders disappear as soon as life estate ends (death of original life estate
holder, even if life estate was conveyed to others) and land reverts to O

-but this is troublesome b/c the conditions you want to encourage may not be affected by death of
life tenant. More time may be needed.
Rule against Perpetuities
No interest is good unless it must vest, if at all, not later than 21 years after some life in being at
the creation of the interest
No interest is good unless it must vest
-applies ONLY to contingent remainders, vested remainder subject to open, and executory
interests, not interests vested in grantor
-BUT if holders are non-profits, dont apply RAP
-interest needs to vest legally, not in possession
-executory interest vests legally at same time that it vests in possession
-good means it will stay in the title; if not, strike that future interest and supporting language
(whole clause)
-apply rule to each interest, in sequence
if at all
-not necessary that we know for sure that it will vest; we only need to know we will know within
the time limit if it did vest or not
Not later than 21 years after
-21 years after the death of some life in being


some life in being at the creation of the interest

-must have a validating life to use as proof
-the validating life must affect the vesting (can be any named person, even grantee, but need not
be stated in grant)
-cannot be a member of an open class; open class may have afterborns. But if class is closed, we
can use any of them. Need not specify a specific person.
-the interest is created when the first estate begins (A takes life estate)
Hints to remember
-look for the invalidating situation-is there a way that remainder will NOT vest w/in 21 years of
one of the eligible people?
-restate the title after striking the invalid clause; may be left with interests in O, or even get rid of
conditions and leave FSA
-BUT REMEMBER-apply the given facts before stating the title before RAP
-important whether grant is inter vivos conveyance or will-if grantor says my children in will,
we know who they are at creation of interest b/c grantor has died
-be careful of survival language then living-must be living at the time of the life estate. Makes
problems for validating life, also delays vesting if it is condition precedent.
-if you say heirs in the future interest, remember we dont know who they are until person dies.
May be invalid. REMEMBER-for executory interest, it must vest in possession, so its likely that
we wont know in time which heirs will take (and they often cant be the validating lives, b/c
more heirs could be born even after person dies, unlike children)
-if it says A and her heirs this means FSA. Dont worry about the heirs. BUT if it says to A,
but if A is not alive to As heirs, we DO have to look at the heirs. A has FS subject to exec
interest in As heirs.

-RAP knocks out most executory interests b/c they must vest in possession, and this is often could
take too long
-look at RAP problems

Jee Case

To wife for life, then to Mary Hall and her issuein default of issue, to Jee daughters then
Rules and Reasoning
Cant have fee tail in personal property. Actually gives fee simple defeasible to Mary and
children, ending when last of issue dies (but could be seen as a life estate, if court wanted to). At
that time, living Jee daughters vest and take (then living is condition precedent). Jee daughters
cant be validating life-they are open class. Also cant know who will be living when Marys
children die. That is why we cant use Jee parents as validating lives. Gift to Jee daughters is
invalid. But, if we knew which Jee daughters exactly, it would be good. They could be validating
-must assume people can have children until they die
-dont care about grantors intent (can be harsh)
-contrast approach to wait and see test or construction test (rewrite the grant so it follows
grantors intent)
IV. Co-Ownership

Forms of Co-Ownership

Tenancy in Common
-fewest rights and protections for each cotenant
-each has equal possessory right to the whole
-can be held in unequal shares
-common law presumes for tenancy in common
Joint Tenancy
-some states require explicit statement to create; and possibly survivorship language
-must have 4 unities: time, title, interest, possession
-right of survivorship (when one cotenant dies, other has full interest to the whole-nothing
transferred, avoids probate); but not an absolute right
-encumbrances expire with right of survivorship
-can be severed unilaterally, in some areas secretly
-traditionally must be held in equal shares; courts now more willing to consider contribution
-can be created or severed w/ or w/o strawman
Community Property
-only married people
-restricts ability of one co-owner to use w/o other
-tax benefits

Tenancy by Entirety
-married people only except Hawaii
-must have both tenants permission to convey
-one tenant cant do anything w/o other; creditors for one tenant cant reach the property (but
depends on state)
-A, B, and C have a joint tenancy. A conveys his interest to D. If this breaks the unities, D has a
tenancy in common with B and C. But B and C still have a joint tenancy as to each other. B dies;
his heirs get nothing. C is now cotenant with D in tenancy in common.
-A and B are tenants in common. A conveys her interest to A and B as joint tenants. But B doesnt
want to be a joint tenant. We can have both. If A dies, B will get right of survivorship to As
portion, and since B has the rest as a tenant in common, B holds 100%. But if B dies, B can
convey interest to heirs. A only has her interest.


Joint Tenancy
Ways to Sever Joint Tenancy (w/o cooperation of all)

Conveyance to Third Party
-either real conveyance, or using a strawman to convey it back to self


Creditors reach (limits of this? Rules?)


Partition action

Conveyance to Self
-not allowed by common law, some jurisdictions (no notice to other tenants)
-but intent of tenant trying to sever is the same as one using strawmen-some jurisdictions focus
more on intent


Riddle Case

Mr. and Mrs. Riddle held land in joint tenancy. Mrs. Riddle conveyed interest to herself to sever
the joint tenancy and make a tenancy in common (get rid of right of survivorship). Is this
Rules and Reasoning
Common law did not allow this, but modern law considers this effectively same as w/ a
strawman. No need for strawman for creation or severance. Joint tenancy does not have absolute
right of survivorship (other legal means to achieve this, like conveyance of future interest)
-notice-When you take out strawman, you take away notice to other tenants. What if one joint
tenant severs in secret? In many states this is allowed, no notice necessary. But in CA must give
notice by recording.
-if we cant tell which tenant died first, we split property equally
-if one tenant murders other, this severs the joint tenancy


Harms Case

J and P had joint tenancy. J used his interest as collateral for mortgage. J died, loan not paid off.
Does P hold right of survivorship; does the mortgage survive?
Title Theory
If mortgage is seen as transfer of title to creditors, this severs the joint tenancy b/c it breaks unity.
Land now held in tenancy in common; creditors still have access after Js death. BUT in some
jurisdictions, if J pays off the mortgage the joint tenancy will resume (break in unities only
Lien Theory
But if mortgage is a lien, does not sever unities. J made a promise in himself; creditors can reach
land only while he lives. This court uses lien theory, so P has right of survivorship. Most states
have this view.
Third possibility
Mortgage is a lien, doesnt sever joint tenancy, but statute makes mortgage survive the right of
survivorship. This protects creditors.
-what if one tenants share is not enough to cover the debt? Can creditors reach the whole
Unities Model
Follows the common law rules of unities. If unity is broken, joint tenancy is severed. But if no
unity is severed, the right of survivorship continues. Under the unity model, we may argue that
unity was or was not broken (like Harms case). But unities are the key. Some states follow this
rule still. But they may have rules to make rule less harsh. Divorce hypo: H and W have
agreement to split assets at divorce, W dies, though unities not broken yet, husband must honor
contract under contracts principles.
Grantors Intent Model
Instead of looking just at unities, look at the persons intent. Did he mean to sever the unities and
destroy right of survivorship when he took out loan or lease? Conveyance to self allowed under
this model. General rule for leases: if lessee didnt get both joint tenants signatures, the right of
survivorship destroys the lease at lessors death. Joint tenant didnt intend to break unities.
Joint Bank Accounts
-A and B have joint bank account. What can As creditors reach? Under true joint tenancy,
creditors can reach all of debtors interest. But should we go by As contribution? Depends on
states position on protecting creditors or innocent joint tenants; who must bear the burden? Also,
what was intent of account? Banks give little choice about getting joint bank accounts. If it seems
like a convenience account only, may not be able to reach the whole b/c the joint tenant couldnt
reach the whole.
-safe deposit boxes-joint tenant in the box does NOT have joint tenancy in all property in the box,
under general rule in most jurisdictions.


Delfino v. Vealencis

P and D are tenants in common. D wants to partition in kind. Ps want to partition by sale; say Ds
presence would be a nuisance (trash hauling bus).
Rules and Reasoning
Court presumes for partition in kind unless: separation would be impractical or inequitable (parts
worth less than whole); or not in best interest of all parties. Ds home is on land.
-courts dont always take personal ties to land into account (home on land, home near land).
-land usually partitioned by sale in modern practice. Why? Courts usually have economic
perspective. Market should determine the correct price of the land.
-zoning-partition in kind might make plots too small for zoning. This takes land from poorer
-owelty-tenant gets their part of land that is worth more than their interest, but must pay other
tenants to even out shares
-t in com for personal property-courts sometimes order sale to force people to agree on sharing
Restraints on Partition
What if cotenants sign agreement not to partition? Is this invalid restraint on alienation? Possibly
yes, under common law. But courts will consider the reasons and conditions of restraint on
partition; reasonable, clear reasons are protected.

Possessory Rights
Spiller v. Mackareth

P and D are tenants in common in building. D has possession. P demands that he vacate or pay
rent. Should tenant in possession pay the cotenants rent?
Rules and Reasoning
To owe rent (proportional share of market value) there must be ouster of the other cotenant. A
failure to meet demand to pay rent is not ouster. Ouster is where tenant in possession denies
others right of entry. It can trigger adverse possession, or owing of rent. This is majority rule (in
minority less is required for ouster).
-ability to get rent and ease of adverse possession are tied-if ouster is easier to prove, both of
these are easier. This can be good or bad for tenants out of possession. Or, state can make
different standards for each. Usually very hard to AP against cotenants.
-minority rule-cotenant in possession owes rent to others. But, if they dont act on their right,
there can be AP.


Swartzbaugh v. Sampson

Mr. Sw leased part of land to D to build boxing pavilion. But Mrs. Sw didnt like that and wants
to end the lease.
Rules and Reasoning
One cotenant cant eject another cotenants lessee b/c the lessee takes the possessory rights of the
lessor cotenant. Lessee cant adversely possess against the disapproving cotenant while paying
rent. Mrs. Sw has other remedies: partition, accounting (get half of actual rent from Mr. Sw) or
claim ouster and make Sampson pay her half of fair rental value rent. But she would give up her
right of survivorship. But cant have both (if she wants accounting from husband, she approves
the lease, gives up her possessory interest, and cant get ouster).
-other remedies might not serve the unhappy cotenants wishes
-good idea to make agreements w/ cotenants and w/ lessees as to what is allowed and expected
-Mrs. Sw could only get up to half of the fair rental value total
-if Sampson didnt know about Mrs. Sws refusal to allow the lease, he could refuse her right to
enter (b/c he thought he leased 100% of possessory rights) and it wouldnt be ouster.
3. Actions for accounting and contribution
a) Rents and profits
Cotenant who gets rent or profits from land owes portion to other cotenants. Based on actual
receipts. (remember, this is different from ouster where non-possessory cotenant gets half of fair
market value of rent).
b) Carrying costs
Each cotenant responsible for paying their share of mortgage, taxes, insurance. BUT if value of
use (rental value) to possessing tenant meets or exceeds the carrying costs, possessing tenant pays
all. This rule not uniformly applied b/c it resembles paying rent.
c) Repairs
Usually one who makes necessary repairs has no right to contribution from other cotenants. But
cotenant who pays gets credit for reasonable repairs in partition action.


No right to contribution for improvements, usually no credit for the cost of improvements in
accounting or partition action. But in partition, the interests of the improver should be protected if
possible. Maybe give improved land to improver, or pay owelty, or if sold get extra for added
value (NOT cost).
E. Marital Interests
1. Common Law System
-English common law: H and W have separate property. Ownership based on who holds title to

-wife had title to real property, but H had right of possession. Possessory rights were alienable
and creditors could reach.
-Married Womens Property Act- protected women from Hs creditors. Now creditors couldnt
reach anything held in tenancy by entirety.
-tenancy by entirety not allowed for personal property in common law
2. Sawada v. Endo
H and W own land in tenancy by entirety. H hits Ps with car and they convey land to sons. Can Ps
get to the land?
Rules and Reasoning
In Haw, tenancy by entirety is not subject to claims of individual creditors during the joint lives
of the couple. Neither H nor W has a divisible interest. Creditors have notice of this.
-what about tort creditors? They have no choice about dealing w/ person in tenancy by entirety
-tenancy by entirety can be created only by married couple. Couple could use a strawman to reconvey land they already have so it is held under tenancy by entirety. If couple doesnt re-convey,
land can be joint tenancy or t in c.
-tenancy by entirety-each has 100% right of possession and right of survivorship
-important WHO the creditors are; states may vary on how to treat different types
-t by e in personal property-H and W have house in t by e. House burns down, they get insurance
money. Is money held in t by e? One court will say yes, it is a substitute for the house. Or, no, and
money is joint tenancy (right of survivorship) or t in c (goes to heirs).
3. US v. 1500 Lincoln Ave
H sold drugs on property held in t by e. Can govt seize it; what should the W get to keep?
Rules and Reasoning
Usual rule is, creditors cant reach t by e. But policy governs here. Govt gets Hs right of
survivorship; wife has possessory interests and right of survivorship.
-state may have one general rule for dealing w/ creditors to a t by e, but could differ based on who
the creditor is.
Different ways to resolve creditor problem:
-creditor gets FSA (not divisible so creditor gets it all)
-creditor gets nothing (not divisible so nondebtor gets it all)
-creditor gets possessory rights of debtor and right of survivorship
-creditor gets right of survivorship only
4. Marital interests vocab
-separate property-owned separately; all jurisdictions allow in some form
-marital property-owned jointly; all jurisdictions recognize martial property, differing by
definition (may include earnings)

-equitable division-dividing marital property at divorce. Old rule-title holder gets it. Now states
have their definitions of what can be divided.
-alimony-associated w/ fault based divorce. Meant to compensate innocent spouse and support
the lesser earner.
-maintenance-in no fault divorce, given for support
-rehabilitative alimony-gives decreasing support to lesser earning spouse, allows time to enter job
market and then stops
5. In re Marriage of Graham
W contributed money and household care to H getting MBA. Can MBA be marital property,
subject to equitable division?
Rules and Reasoning
MBA, or earning capacity have no characteristics of property so cant be divided. W has other
W cant get alimony b/c she is self sufficient. Other times we give W interest in Hs earnings
potential (torts). Unfair not to give W something for her contribution.
-should courts view marriage as an economic partnership, and one spouses contribution as an
-if Grahams had any marital property, we might split that considering Ws contributions and not
worry about his MBA

6. Elkus v. Elkus (NY)

H contributed to Ws successful opera career. Wants to treat her career as martial property.
Rules and Reasoning
Marriage is an economic partnership, so we need to broaden the definition of marital property. A
career can be marital property. Do not consider transferability or if its a license or degree; instead
consider the other spouses contribution to the career to determine what is marital property.
-NY rule is a different conception of marital property
-courts usually go case by case; very hard to set one definition of marital property
-double counting problems-spouse may have to pay several times to several ex-spouses for the
same career
-in ALL states, separate property is eligible for equitable division, unless excluded by prenup
-a property interest in the career is different from maintenance or alimony; with the property
interest, it doesnt matter if the persons career changes in the future. But with maintenance, it
does go up or down depending on the spouses standards of living and situation changes.

V. Landlord-Tenant Law
A. Types of Leases
1. Term of Years
-ends in a reversion in FSA to owner
-no notice involved b/c both know when it ends
-death has no impact, it stays for the whole time
-there is an ongoing relationship btw tenant and landlord (different from life estate!)
-can be a more general time period w/ unusual measure (like as long as the LION King is
showing in LA)
2. Periodic Tenancy
-the lease is periodic, year-to-year or month-to-month
-notice is necessary b/c tenancy will roll-over if notice is not given; both need to know what the
other plans to do
-common law rule for year-to-year or longer=6 months notice
-less than 1 year, notice same period of tenancy not to exceed 6 months. Notice may NOT
terminate the lease in the middle of the period. Must give notice before the deadline for start of
new period. (if one doesnt give enough notice and leaves, landlord must mitigate damages and
lease to a new person; little incentive to have long term lease)
-death has no impact on the lease itself
3. Tenancy at Will
-common law-lasts as long as each desires (both have power to terminate the lease)
-statutory notice requirements, but sometimes landlord must give more notice than tenant has to
-death matters, it terminates the lease
4. Tenancy at Sufferance
-tenant whose lease ended stays on at sufferance of the landlord. LL can evict tenant and sue for
damages, or keep the tenant for a new tenancy
-statute may define how much damages the LL can get
B. Characteristics of Leases

1. Lease vs. Other estate

-A court might decide a lease is actually a life estate or different conveyance, if the terms do
not resemble one of the tenancies
-EX: A says B can live in his house as long as he wants to for rent. Only the tenant has the right to
terminate. There are different consequences when A dies depending on whether its a tenancy at
will (B must leave when A dies) or a life estate determinable (B can stay after A dies)
-leases have incidents (promises btw tenant and LL) that dont exist under other estates
2. Contract and conveyance
-a lease is both a contract and a conveyance
-but still considered personal property, like a contract
-leases for >1 year must be in writing. Most jurisdictions allow oral leases for terms <1 year.
-courts will consider relative bargaining power, economic affects when deciding to uphold
contractual agreements of lease

C. Fair Housing Act

1. The Statute
-does not allow discrimination in housing based on sex, race, religion, familial status, handicap
(some states include more, such as marital status or sexual orientation which FHA doesnt
-looks only at discriminatory effect, not the intention
-courts will consider the legitimate explanations, and if the purported reason is an illegitimate
proxy for discrimination against protected class
-covers discrimination in leasing or selling after making genuine offer when place is still
available, advertising for housing, and providing services to tenants
-LL must make reasonable accommodations for handicapped tenants
-exemptions: does not apply to someone selling single family house who doesnt own >3 single
family homes, as long as person doesnt use real estate broker or discriminatory ads; also in
dwellings w/ 4 or less families living independently and landlord lives there too (Mrs. Murphy
-alcoholism and previous drug abuse, infectious diseases are disabilities
-but current drug use not protected; also can discrim based on immigration status
-CA law prohibits discrim based on any personal characteristics; doesnt have Mrs. Murphy
2. Soules v. US Dept of Housing
a) Facts
P claims that D discriminated against her for having children. D claims she just doesnt want
noisy people bothering the elderly tenants, and P was rude. She was willing to rent to another
family w/ children.
b) Rules and Reasoning
P must show she is member of protected class, and she was rejected for housing though it was
available. Then court looks at other explanations for the Ds behavior and whether the claim
stands up to these. Also, when evaluating statements, the court uses a reasonable listener standard
but will consider intent to determine how a reasonable listener would interpret the statement.
Intent is not the issue, but ends up being considered in some ways.
c) Issues
-D cant use a proxy reason to discriminate against protected class; doesnt matter if D intended
to discrim, only matters if that was the effect
-advertisements-standard may be whether person will feel unwelcome, looks at the pattern of
conduct when less clear (all white models)
-quotas only allowed for limited periods to give greater access to previously excluded groups, or
regain a previous balance that was lost (maybe due to closing and reopening of premises)
3. FHA hypos
1-LL has 8 homes to rent. Limits # of occupants. Will not rent a 4-person home to a family w/ 3
children. This could be a proxy for discriminating against certain religions, natl origins. HUD
will litigate to resolve.
2-LL wont rent 1-bedroom to 1 adult and 1 child, or 2-bedroom to 1 adult and 3 children, but
will rent 1 bed to 2 adults. This is not ok b/c it differentiates btw adults and children. (Issue: often
hard to define what family status protects. Age?)

3-LL rents to woman and then sexually harasses her-one view is that if the harassment prevents
her from getting same services as other tenants, this is violation of FHA. But another view is, it is
a violation regardless of whether if affects the services.
4-LL refuses to rent to gays for fear of AIDS-inappropriate use of a proxy; ok to discrim against
gays, but not against those LL thinks have AIDS. So this is a violation.
5-LL wants to evict tenant who has mental disability and scares other tenants-*the LLs or other
tenants comfort or fear is NOT the issue. You need solid evidence of dangerousness.
6-White supremacist group wants to use common room for mtg, LL says no-could be discrim
based on religion. So LL could either say no religious activity in common room, or say all
religions welcome.
D. Delivery of Possession
1. Hannan v. Dusch
a) Facts
When Ps term of years began, the previous tenant was still there. Didnt sign express agreement
for delivery of possession. Does LL have to remove the holdover tenant?
b) Rules and Reasoning
Two possibilities: English rule (implied covenant of delivery of possession) or American rule
(tenant has burden of removing holdovers). Court chooses American rule. Tenant could have
signed express agreement; still has remedy against holdover.
c) Issues
English rule: LL has the burden to remove holdover tenants and put tenant into physical
possession. LL was most able to know about holdovers. Tenant could also contract into American
rule. Possibilities?
1-break the lease-the tenant can find a new lessor
2-sue LL for damages-LL was not the wrongdoer, so dont punish him so much
3-break lease and sue for damages
American rule: LL has duty only to deliver legal possession; tenant has burden to remove
holdover. The tenant should have been aware of the situation. Can sue holdover for damages.
Allows greater privacy and autonomy for tenants if more responsibilities are taken from LL and
given to tenant.
-hypothetical of landlocked leasehold-might say tenant should have known what he leased. Or,
might say LL had more information and should have provided it.


Subleases and Assignments

1. Ernst v. Conditt

a) Facts
L leased to T. T transferred to T1 for the rest of the lease, but they called it a sublease. T agreed
that he was still liable for original lease. T1 defaults on rent and L sues T1. Is T1 liable?
b) Rules and Reasoning
Depends on if the transfer was a sublease or assignment.

1-Sublease-created when T retains some interest; can be reversion (in some courts right of reentry counts when T otherwise transferred all interest); T1 is not liable to LL
2-Assignment-created when T transfers all interest for the rest of time of lease; T1 is liable to LL.
In BOTH cases T is liable for LL for his or T1s default.
This is common law rule; newer rule looks at the intent of parties. Doesnt matter if they said
sublease when they meant assignment.
c) Issues
-if T transfers all interest in a part of the leased premises, courts usually find a partial assignment
-privity of contract and privity of estate-under original lease, T had both. He is bound to LL
through contract, also through possession. T assigns to T1: T1 has estate only; T retains contract.
If T1 assigns to T2, T1 has no liability b/c no privity of estate or contract. Under sublease, no
privity is transferred.
-If T subleases to T1, T1 can be held liable to LL if:
1-state allow 2L to sue T1 for rent b/c rent is a serious obligation, can sue person in possession
2-T1 could also be held liable under privity of contract if T1 expressly or impliedly (through an
agreement w/ T or a similar lease w/ LL as implied third party beneficiary) agrees to be held to
the terms of the original lease
-if T gives up primary lease voluntarily, the sublease/assignment remains intact (see Pestana case)
-FIRST look at starting point (common law), then think of the factors that would move you away
from that common law outcome
2. Hypos on Subleases/Assignments
1) assignment between T and T1. T1 agrees to pay $600 for rent to T, and T pays $1000 rent to
LL. Then T stops paying. How much can LL get from T1?
-Depends a lot on notice-did T1 have notice of the original lease? Might say that T1 has
responsibility to check the title of property and find out about original lease. Either constructive
(should go see the recorded title) or inquiry notice (should ask lessor about state of title).
-Or, might not expect T1 to find out the lease, tenants usually not sophisticated enough (might
depend on residential vs. commercial lease)
-Was it really a sublease? Not by common law (goes by time left on lease), but by intention it
might be.
2) L=>T, then T assigns to T1 who agrees to assume all covenants of lease. Then T1 assigns to
T2, T2 assigns to T3, T3 defaults.
-T is always liable UNLESS T gets a novation, absolving him from further liability for
subsequent tenants
-T1 may have privity of contract if court thinks it is implied, so T1 is probably liable. Would be
liable for the rest of the lease, not just while T1 is in possession
-T2 has neither privity of contract, nor privity of estate. Not liable
-T3 has privity of estate, liable to LL.
-giving permission to transfer once sometimes means all further transfers are ok too
F. Permission to Transfer Lease
1. Kendall v. Ernest Pestana
a) Facts
LL leases to L. L subleases to T. Then L assigns his interest to Pestana. The sublease to T
survives. Lease requires that T get permission before transferring lease. T wants to assign to
Kendall, but Pestana refuses.

b) Rules and Reasoning

Common law majority rule: where lease contains an approval clause, the lessor can arbitrarily
refuse to approve an assignee. L has no duty to incur costs for T to transfer lease.
Minority rule: lessor must have a reasonable objection to T1. In this court, must be a commercial
reason based on T1s financial stability, suitability of proposed use, legality of use. Cannot be
refusal based on personal taste, or wanting higher rent.
c) Issues
-both L and T could have had more explicit clauses in the lease, providing for either reasonable or
arbitrary refusals. The law determines the default rule, then L or T can negotiate and contract for a
more favorable clause in lease
-courts differ on factors used to determine reasonableness (may differ whether residential or
-could argue that we should follow common law rule, that is what L and T both expected when
they signed the lease
-Odd outcome: may be able to discriminate against T, but not against T1 for exact same reasons.
Must be reasonable about T1. Why? Courts want to protect T, make his interest alienable.
2. Hypos on Reasonable Consent to Transfer
-Courts decision often has to do w/ how it views LL, as a whole person/businessman or just
narrowly as a LL of this particular property
1) L=>T. T wants to transfer to T1. L refuses b/c T1 is tenant in another building of Ls and L is
negotiating a new lease, doesnt want to lose T1 as tenant in that building.
-how specific does the economic harm have to be? Depends on court. May feel more sympathy
for LL (already negotiating, consider his whole business) or for T (LL still has original lease,
consider narrow economic factors of just this building)
2) L refuses T1 b/c T1s business will compete w/ Ls own business, or other tenants in the
property. Does court view Ls whole economic situation, or just narrow economic effects on this
property? May discourage LLs from having other businesses.
-what about if L refuses b/c he gets portion of profits from Ts business and charges low rent, and
T1 will probably be less profitable? Court may consider incentives for L to invest in higher risk
businesses. Also, depends on if court focuses on rent alone, or on Ls whole business investment.
G. LLs Use of Self Help
1. Berg v. Wiley
a) Facts
LL locks T out for breaching lease (her restaurant violated health codes) and abandonment (but T
claims she closed for repairs). Common law-LL can use self help if legally entitled to possession,
and uses peaceable means.
b) Rules and Reasoning
The lockout was forcible, could lead to violence which courts want to avoid. But court states new
rule that all self-help is wrongful, LL must use legal proceedings.
c) Issues
-bar on self-help is not majority rule, but is a trend. In some jurisdictions it applies to residential
leases only

-though majority rule is that peaceable self help is ok, jurisdictions differ widely on what is
peaceable; may be so narrow that LL effectively cant use self help
-summary proceedings-help speed up the ejectment process, but LL and T cant bring up a lot of
issues so they may need to make further suits as well, which takes more time & $ for both
-thus some tenant groups would allow LL self help if LL and T can agree peacefully, and damages
if LL is wrong
H. Duty to Mitigate Damages
1. Sommer v. Kridel
a) Facts
T wrote to LL surrendering lease on apt. LL did not reply. LL turned down a prospective tenant
who wanted to rent that apt. T claims LL failed to mitigate damages.
b) Rules and Reasoning
Majority/common law-LL has no duty to mitigate damages. LL need look only to T for rent.
Recent trend-there is duty based on contract principles. LL must make reasonable efforts to
mitigate. Who has duty to prove reasonable steps? Differs by jurisdiction.
c) Issues
-surrender and acceptance-abandoning apt is implied surrender by T. If LL accepts, no future rent
is owed. If LL retakes possession, may be seen as implicit acceptance. LL must make intention
very clear, give notice to T and all.
-some states apply majority rule (no duty) to all leases, some to commercial, some to residential
-what are reasonable steps to mitigate? LL must treat property as part of his vacant stock, may
have to advertise in reasonable way, try to get same rent as T paid, can give up, cant reject
suitable tenants (LLs usual methods, if court thinks inadequate, may not be enough for
reasonable mitigation)
-consequences for failure to mitigate-LL may recover no rent, or may recover the difference btw
due rent and the amount of loss that could have been avoided (FRV by renting to new T). differs
by jurisdiction
-T may also owe the difference btw original rent and the new lower rent that LL must accept; T
may also have to pay costs of mitigation (ads, cleaning, repairs)
-BUT if the new rent is higher than Ts rent, LL should accept surrender, b/c T can claim that
excess b/c LL was renting on Ts behalf
2. Different possible rules based on common law and new reforms
-many possible combinations, starting w/ common law where LLs only duty is to deliver legal
possession, up to LL having all of the above duties. T may also have certain responsibilities, for
example finding sub tenants if T defaults. Also may have different rules based on Ts reasons for
-LL and T groups may be willing to compromise, based on actual costs of the rules. The LL may
accept duty to mitigate, but wont want to have to accept Ts subtenants. T groups may also want
to limit LL duties, b/c costs get passed to all other Ts. Notice is also a concern-how sophisticated
are LL and T, does it differ by type of lease (commercial vs. residential).
-LL and T may also opt in or out of different rules in the lease based on the default. Will courts
accept? Depends on bargaining power, economic impact, etc.

I. Covenant of Quiet Enjoyment

-either express, or implied (jurisdiction decides to imply it in lease)
-means that LL has a duty to maintain premises so T can use them as T intended, assumes that LL
knows Ts purpose for leasing
-applies to residential and commercial property
1. Remedies
a) Constructive Eviction
-a common law exception to the independence of obligation for rent and LLs promises to T.
Today, these obligations are more generally mutually dependent, not as much need for c eviction.
-if LL substantially breaches the covenant, then it is just as if T has been evicted. T must move
out, doesnt have to pay rent.
-T must notify LL of problem, give LL time to fix it, and then leave in reasonable amount of time
-BUT if court finds no grounds for constructive eviction, T had abandoned, and LL may have to
mitigate damages
b) Lesser Breach
-T does not have to leave the premises, T can pay less rent and/or get damages. May be used as
defense when LL sues for back rent. can sue for damages
2. Reste Realty v. Cooper
a) Facts
T leased ground floor for business, kept flooding. LL would fix problem when needed. Then LL
died, new LL would not fix. T moves out, and claims constructive eviction when LL sues.
b) Rules and Reasoning
T did not accept premises in their current condition (as T did under common law). LL promised to
fix the problem. Further, problem really resulted from common areas which LL must fix. LL also
claimed flooding wasnt permanent, but the breach didnt have to be constant, just had to be a
regular problem.
c) Issues
-most jurisdictions do not relieve T of liability for rent for constructive partial eviction due to
breach of quiet enjoyment
3. Problems
1) T is tenant at will. LL interferes w/ Ts business of premises. T vacates, rents space for higher
rent, and sues for damages. Since this is a t at will, the lease lasts as long as both want it. There
cant be constructive eviction. But court could find that the tenancy was actually periodic. So it
depends on what type of tenancy, but not absolute.
2) T vacates, stops paying rent, L sues. T claims that L breached covenant of quiet enjoyment.
a-L fails to control excessive noise caused by other tenants. Is L responsible for third parties?
Courts may consider Ls relative control over situation, importance of T being self-sufficient and
responsible. Remember-breach might not be bad enough for constructive eviction, but if T stays
he could get damages, or sue under contract law

b-third party criminal activity at property, LL installs deadbolts and hires guards but doesnt solve
problem. Concerns: did LL do enough already, relative responsibility/control of LL, whether
problem existed before T moved in.
c-anti-abortion protestors causing problems for T who runs clinic. L does nothing. Court may
decide that L knew the proposed use of the property, should have made sure that property was
ready and appropriate. Or, might be Ts responsibility (as under common law).
3) many courts say T can get declaratory judgment of constructive eviction before moving out;
others may think T should bear the risk of vacating and ceasing rent
J. Illegal Lease
-if premises unsafe/unsanitary, may be an illegal lease
-must have defect at time of lease (cant arise later)
-must be substantial (not just minor violations), and affect health and safety
-T can stay but withhold rent
-T is tenant at sufferance, LL may be entitled to FMV in defective condition
K. Warranty of Habitability
1. Hilder v. St. Peter
a) Facts
P suing LL for damages and paid rent, claims LL failed to keep property habitable after she asked
many time for repairs and did some herself. P remained in possession.
b) Rules and Reasoning
There is implied warranty of habitability in every lease, cant be contracted out of. No assumption
of risk if T knows about defects. Court looks at housing codes, also general impact on health &
safety of T. T must notify LL, allow reasonable time. Remedies: stay in possession & sue for
damages or withhold rent, or deduct for cost of repairs; vacate & no rent. No need to move out to
recover; doesnt require constructive eviction.
c) Issues
-not all jurisdictions have the warranty, or apply it to all leases (long term leases or single family
-could also be an express warranty
-if warranty is breached, T can withhold rent. Important implications for scope-may be easy for T
to not pay rent
-may decide not to have warranty for economic reasons (market determines price and condition;
dont want to price people out of market) or to use other methods to increase fit housing
2. Scope of Warranty
-usually doesnt cover luxury items like gym, elevator. For these problems T can use breach of
contract remedies
-fit for human habitation-could mean up to health/safety codes, or could be something beyond
that. Usually judged by view of reasonable person, but actually very subjective.
-continuing loud noise or lack of AC/heat may count
-responsibility for third parties, such as LLs staff strikes-similar concerns as w/ quiet enjoyment,
may consider LLs identity (do we view LL as an employer, or just LL?) May not just consider
condition of premises; LL may need rent to remedy the situation, not good to allow Ts to withhold

-usually applies just to housing; commercial lessees can use quiet enjoyment (may be able to
claim constructive eviction and vacate, stop rent; or stay and withhold rent and/or sue for
-warranty may increase homelessness, but maybe only temporarily
3. Measuring Damages
1-agreed rent minus fair market value as defective
Easier to deal with, good if goal is to prevent price gauging, but could be zero damages. Not good
incentive to get rid of unfit housing.
2-fair market value as warranted (up to code) minus the agreed rent
May also be zero, T could pay more than worth even up to code. Other factors involved in agreed
rent than condition, thus difficult to use.
3-punitive damages
4-FMV as warranted minus FMV as defective
Very hard to figure out FMV of either. May argue that agreed rent is the FMV. Good to
incentivize fit housing.
5-subtract % diminution in usability from the rent being paid
Common solution, but maybe not as good for incentivizing habitable housing
L. Retaliatory Eviction
-LL cant evict T too soon after T makes a legitimate complaint.
-there may be a statutory time period where LL must prove behavior was not retalitatory; after
time period T must prove retaliation
-also relates to rules about quiet enjoyment-if LL is responsible for third party breaches, then Ts
complaint about third party is protected; but if LL has no duty, eviction of T for complaining is
not retaliatory
VI. Recording Acts
A. Reasons for Having Them
1. Notice
-usually no requirement for recordation to validate the conveyance between the parties
themselves (they have actual notice)
-provides notice to the general public and to future buyers, also helps resolve disputes about who
has better claim to same property
2. Repository
-provides for a central, reliable place to store the documents where they wont get lost or
damaged or changed
3. Forces a Writing
-the terms of the conveyance are made clear, courts can go back and examine it
-also clarifies where property is, who was involved, b/c recordation wont be valid w/o these
4. Irrevocable
-neither party can change their mind or claim the conveyance never happened

B. Validation of Conveyance
1. Patience case
-b/c of statutory requirements, the joint tenancy was not severed until it was validly recorded.
Recorded for these purposes when deposited.
-what does deposit mean? Will vary by jurisdiction; might mean giving it to the clerk w/o
intention of giving it back; or could mean cant get back (differing views of when it is
-requirement for recordation will be different whether the intention is to validate the conveyance
by making irrevocable or to provide notice to the world (where full recording/indexing is
-recordation may also be necessary to validate conveyance for lenders/creditors who want to
make a claim on anothers property
C. Types of Statutes
1. Race
every conveyance of real ppty is void against any subsequent purchaser for a valuable
consideration whose conveyance is first duly recorded
-real ppty-statute defines what interests it applies to; could be different types of statutes for
different types of interest
-subsequent purchaser-cant be used by 2nd in time person who received as gift. Person paying by
installments usually not a purchaser.
-valuable consideration- differs what it is; usually must reflect value of the property.
-first duly recorded-validly recorded per rules of jurisdiction
-notice (actual or otherwise) is irrelevant
2. Notice
no conveyance shall be good against subsequent purchasers for a valuable consideration and w/o
-w/o notice-depends on how extensive search must be, cant have actual notice even if prior was
not recorded
-just look for last GFP; dont care about recording
-but recording is relevant to determining notice
3. Race-Notice
every conveyance of real ppty is void against any subsequent purchaser in good faith and for
valuable consideration whose conveyance is first duly recorded
-GF at time of conveyance, not at recordation
-must be the first GFP to record
4. Who They apply To
-only apply to subsequent purchases, not the first grantee
-a seeming prior grantee may actually be a subsequent purchaser, depending on courts definition
of when the conveyance becomes valid (grantee filling in his name on deed)
-a subsequent GFP can get title from a grantor w/ no actual interest to convey, even a bad faith
-in race-notice, if subs purchaser gets title from someone who was GFP and recorded, the subs
claim is valid even if subs purchaser was bad faith

D. Constructive/Actual Notice
-if the conveyance is validly recorded there is constructive notice
-if person looks up record, or knows from other sources, there is actual
-if there are circumstances where reasonable person would ask, there is inquiry
1. Type of Index Available
-most jurisdictions have grantor/grantee indexes, a few have tract indexes. Many of the problems
result from G/G indexes
2. Extent of Search
-the extent of the search differs by jurisdiction. What search is necessary determines whether
person had constructive notice or not.
-courts concerned about the burden placed on searchers, what is reasonable to look for and what
is too costly
a) Prior or Subsequent Conveyances
-if A to B records, then O to A records, may not be required to search before A got the property
from A; if not required, there was no notice of conveyance to B
-if O to A, then O to B, B records, A records, may not be required to search after Bs record for
other conveyances. Thus no notice of As prior claim, if juris has minimal search
b) Different Names
-may be misspelled name, or listed under a different name (maiden/married name)
-some juris require you to search for other names w/ same starting letter and similar sound
-others think this is too burdensome on searcher
c) Mother Hubbard Clauses
-conveys all my interest in something; usually valid btw the parties, but may not be enough
notice for subs purchasers
-may need to be more specific about the land involved
-some juris dont allow these clauses at all
-if this clause isnt enough to give notice, then its like no recordation at all
3. Quality of Prior Deeds
a) Recordation of Prior Deeds
-often required to record all prior deeds in your chain of title to have a valid recordation. Must
close the gaps in the chain.
-statute determines how far back you must record
b) Defective Prior Deeds
-even if subs person gets title in GF, if the prior deed was defective then subs deed is no good (if
-does defective deed give notice? may differ whether the person searched record or not; whether
defect was obvious on face of document or not
4. Notice of Restrictions
-a development plan may have restrictions written into it. if so, it is easy to trace, that would
probably give notice

-also, if other tracts before you in that plan have restrictions and say these apply to all lots, that
might give notice (even if deeds before that didnt mention restrictions)
-if plan doesnt list restrictions, and some lots have them/some dont, may have notice, should
look at the general pattern of restrictions
E. Problems
1. O to A, O to B, A records, B records
-notice-B wins even though he had constructive notice when he recorded. All that matters is good
faith at time of conveyance.

2. O to A, O to B, A records, A to C, B records, C records

-notice-C wins b/c C is last GFP of value
-in race-notice, C wins b/c A recorded first and C got valid title from A. Doesnt matter if C even
had notice of B at time of conveyance (shelter rule)
3. A to B, no record; O to A, no record; B to C, records; A to D,
records; O to E, records
-in notice-C and D should close their chain of title. Otherwise, there is no notice to subs
purchasers. If they didnt do that, E is last GFP.
-race-notice-if C and D did not close their chains of title, then E is the first GFP to record
4. O to A, no record; O to B, knows of As interest, no record; O to
C, no record; B to D, no record; A records, B records, D records
-notice-D was last GFP. Other version of shelter rule applies here, doesnt matter that B was bad
faith. Look for last GFP, and whoever gets interest from them wins.
-race-notice-A was GFP who first recorded. A wins.
5. Same as 4, but then A to E, records
-notice-E is last purchaser. But GF? Depends on how extensive a search the jurisdiction requires.
If extensive, E would have seen the conveyances to C and D. Then D wins. If minimal search, E
would have no notice, and E would win.
-race-notice-A was first GFP to record. E got his interest from A, so doesnt matter if E was GF
(shelter rule). Just look for first GFP to record, anyone who gets interest from them wins.
VII. Servitudes
A. Easements
-easements are real interests in land. Contract issues not important, except for statute of frauds
requirements. You can always do a lot more w/ a written E, making own terms that differ from
default rules.
1. Vocabulary
-Servient tenement-property that has the servitude on it, bears the burdens
-Dominant tenement/estate-the servient estate serves its needs, getting the benefits
-Appurtenant to land-the easement will remain regardless of who owns either property, tied to
land itself, has to do w/ state of owning land; easier to figure out how to terminate it, b/c tied to
whoever owns the land associated

-In gross-the rights to come onto property are irrespective of ownership of land, you can use the
easement independent of your ownership of land in the area. We need different ways of
terminating, b/c not easy to identify who is benefited.
-types of easements-indefinite, license, profit (right to take something)
2. Creating an Easement
Usually requires writing according to statute of frauds. Exceptions:
a) Estoppel
-either making license irrevocable, or finding easement
-requires permission and representations from ST, reasonable reliance on that permission, change
in position based on reliance, thus unfair to require written grant


Implied from prior use

-for implied easements, DT and ST must have been under same owner
-implied E from prior use is forever
-if DT and ST come together under same owner again, then easement disappears.
-must also be necessary, and apparent to buyer of ST


Implied from necessity

-must be common owner; will disappear when under CO again
-focuses on necessity at time of severance of DT and ST
-usually implied E by N is based on intention of parties, but can be implied based on public
policy (dont want landlocked land)
-may require strict necessity (NO other way off land); or could allow when other ways off are too
costly, difficult
-implied easement by necessity will disappear when no longer necessary
-some statutes have provided a process to condemn an E by N, no common owner required, DT
pays ST damages


-exclusivity, continuity, adversity rules could be different from AP rules; encroachment is another
possibility (Manillo)
-there must be a trespass (golf ball hypo-not a trespass b/c not intentional)
-some courts require acquiescence of owner (O cant say get off my land, or give explicit consent)
to AP an E (holdover of lost grant idea that easement was actually granted in the past)
-BUT some courts say any implicit permission invalidates claim; or O must effectively interrupt
or stop the adverse use to stop the SOL clock
-for exclusivity, some courts dont require that DTs use be exclusive of STs use. ST can use
easement as well.
-for public proscriptive easements, LO must be put on notice that general public is claiming right,
not individuals
-but some courts use old legal fiction of implied for lost dedication of the land to public use
-could change/extend the use and start the clock running too
3. Scope of Easement
-default rule: scope includes uses that are reasonably foreseeable
-ok for manner, frequency, intensity of use to change to accommodate normal development of DT

-surcharging an E is different from increasing the scope. This is when DT increases the burden,
maybe driving trucks instead of sedans down the right of way.
-private easement of right of way usually does not allow DT to install utilities above or below the
right of way
-established rule-location of the E cannot be changed by ST w/o permission of DT. But newer
possibility-ST can change location at his expense if change doesnt significantly lessen utility of
-proscriptive easement is usually not as broad as other easements-uses made of proscriptive
easement must be consistent w/ the general kind of use by which easement was created
-if the scope of a written E is narrower than proscriptive, then there is less incentive to get E in
4. Terminating an Easement
-by abandonment; must be clear intention by DT to abandon
-easement can be terminated by prescription, if ST wrongfully and physically prevents use of E
for SOL; can also narrow the scope by preventing some uses by proscription
-merging the DT and ST under one common owner
-ST can buy the E from DT and then terminate it
-put shut-off terms into the written agreement (as long as)
-estoppel, owner of DT makes representations that ST reasonably relies on and changes position
5. Holbrook
a) Facts
Ds gave permission to use road for Ps to build house. After Ps built home, repaired road, Ds
obstructed road.
b) Rules and Reasoning
Usually licenses are revocable, but can become irrevocable through estoppel. Estoppel applies if
Ds made representations that Ps reasonably relied upon to change their position (spend $ building
c) Issues
-irrevocable license can be different from finding easement. License will last only as long as
necessary. So if Ps new house burns down, license is gone. But easement lasts forever. Some
courts dont have this distinction; both last forever.
-what is considered reasonable reliance can differ; court may think relying permanently on the
promise is not reasonable
-Default rule: ST has duty not to interfere w/ easement, DT must maintain and repair the
-damages to ST? court may decide to give them if it wants to acknowledge that some people are
good neighbors, and didnt mean to put the other in a bad position, but didnt intent E
6. Van Sandt
a) Facts
Owner of 3 lots used part of land to run a sewer line for benefit of rest of land. Then sold
burdened land to P, benefited land to Ds.

b) Rules and Reasoning

Owner cannot have an easement on own land. But can have a quasi-easement. Easement can be
an implied from the parties intent based on prior use if it is apparent, continuous, and necessary.
P had inquiry notice of the sewer.
c) Issues
-usually harder to imply a reserved easement in favor of grantor b/c grantor could have put it in
writing, but not always
-if court doesnt like fact that E implied from prior use lasts forever, may make it harder to
establish at beginning, or increase ways to terminate it
-court may also look at what grantee paid, if it reflects a lower price for the E; or may think that
grantee is getting some benefits too (like here, getting to use the sewer line himself)
7. Othen
a) Facts
P and D got their land from same owner. P wants to use Ds land as easement to get off his
landlocked land. Says he has easement by necessity or prescription.
b) Rules and Reasoning
Must have been necessary at time of separation of ST and DT. Not the case here. Also no
proscription b/c original owner cant AP against himself, and the use by P was w/ permission.
c) Issues
-courts often consider the public policy of not allowing landlocked land. Could make it easier to
find an easement if sympathetic (like if person got the land in a will, couldnt negotiate the
written deed)
8. Brown v. Voss
a) Facts
P had an E through Ds land to get to lot B. Then P bought lot C and began using the E to get to
lot C too, though w/o increasing burden on ST. Can Ds stop this use as extending the scope?
b) Rules and Reasoning
The easement cannot be used to reach any land that was not part of the original DT. This is
misuse of easement. BUT Ds get no injunction b/c the misuse didnt increase the burden, and for
injunction there must be substantial injury. Dissent-should grant injunction for the trespass
(misuse of E is trespass). Ps should use statutory process to condemn an E by N.
c) Issues
-many possible equitable remedies, like injunction, sometimes can award damages, or force a
transaction (sell the E)

9. Preseault v. US
a) Facts
Ps own land that has railroad right of way running across it. The state changes the RR path into a
public trail. Issues? Who owns the strip of land w/ path, does scope of E include using it for
public trail, had E terminated prior to making a public trail?
b) Rules and Reasoning
Even though grant said it gave path to RR in FSA, court decides the custom of eminent domain
was really to take an E only, and didnt pay enough for FSA. Can change the use, but only as
reasonably foreseeable to the original scope. Public trail was not (but could have gone other way).
Court decides taking up the RR ties is abandonment, but could have found no such intent. There
must be clear intent by DT to abandon.
c) Issues
-usually saying right of way will create easement; but some courts allow FSA when deed shows
that intention (like here)
10. Negative Easement
-the ST cannot do something on own land for the benefit of DT
-very limited, must fit one of below categories. If not, it is a covenant. Easements are better, it
goes on forever and you can enforce it better.
a) Old Types
1-blocking your windows
2-interfering w/ air flowing to your land in a defined channel
3-removing the support of your building
4-interfereing w/ the flow of water in an artificial stream (all landowners have duty not to
interfere w/ natural streams)
b) New Types
-express easement of unobstructed view
-solar easement-wont block solar panels
-conservation-wont develop your land, will conserve it
B. Real Covenants
-A promise between two landowners for one to do something/not do something in relation to his
land for the benefit of the other. Real covenants run with estates in land. Remedy: damages
-creation-can arise from estoppel, implication, prescription-correct? Or cant?
1. Common Law
a) Horizontal Privity
-must have horizontal privity btw the original covenantors for burden to run
-means that the promise is in a written conveyance of an interest in land
-conveyances that can qualify-LL/T, grantor/grantee, easement, straw

b) Vertical Privity
-must have vertical privity btw original covenantor and successor in interest for benefit and
burden to run
-runs w/ estate; so successor must have the same interest
-covenant does not run to adverse possessors
-the prior owner is still liable if no VP to successor (so if A has FSA, conveys FSD to B, A is still
liable for covenant)
-prior owner not liable if VP with successor; BUT contrast LL/T law, T1 needs a novation to get
out of privity of contract liability
c) Other Requirements
-notice, intent to run with the land, touch and concern

2. Modern Law (Restatement Third)

a) Horizontal Privity
-no longer required
b) Vertical Privity
-for affirmative covenants-benefit and burden run to estates of same duration, burden runs to
adverse possessors, life tenants, lessees
-negative covenants run to all subs owners and possessors
c) Otherwise same
C. Equitable Servitudes
-remedies: equitable such as injunction, specific performance
-creation-by implication in limited circumstances, not by prescription
-requirements: no HP, VP for benefit to run (CL no benefits in gross), notice, touch and concern
(but contrast restatement), intent to run with the land; BUT notice only for subs purchasers, if no
consideration no need to have notice. (these are elements; if you dont satisfy one, doesnt
-remember, a covenant could actually be a negative easement if it fits in the categories, then dont
need to worry about requirements (Ex: promise not to build or change historical site could =
conservation easement)
-defeasible fees-similar b/c they control land, but remedy limited to forfeiture, harder to enforce

1. Modern Trends
-no difference btw real covenants and ES
-restatement view of T & C-almost all covenants valid at the start (freedom of contract). Puts
focus on termination doctrines instead.
-Invalid to subs purchasers if they violate public policy (freedom of contract very important)
includes: arbitrary/spiteful; burdens constitutional right; imposes unreasonable restraint on
alienation; imposes unreasonable restraint on trade or competition; unconscionable
-for affirm covenants-VP for benefit, reasonable rules for burden
-negative cov-no VP required (applies to anyone who possesses/owns)

2. Tulk v. Moxhay
a) Facts
D purchased land w/ notice of covenant, but doesnt meet requirements for real covenant in
b) Rules and Reasoning
Court can enforce covenant in equity.
c) Issues
-ES can be affirmative or negative
-ES are interests in land, run w/ land and not estate
-P can sell the injunction to D, like getting damages
3. Sanborn v. McLean
a) Facts
D built gas station on property. Deed did not list any restrictions. Other lots from same grantor
around it were restricted to residential use.
b) Rules and Reasoning
Court implies reciprocal negative restriction. D had notice from the other restricted lots from
common owner; also had inquiry notice from other lots not having commercial uses.
c) Issues
-three possibilities: imply covenant from a recorded plan (CA rule); imply from reciprocal
covenants written in prior deeds (saying that common owners remaining land is also restricted);
or imply from a pattern in deeds and inquiry notice. Relevant to how broad a search in records is
necessary; when there is notice.
-problems w/ this case-if plan had not emerged when prior owner of Ds land bought it, wasnt he
a GFP? Why shouldnt D get shelter rule? This case means D cant get it. (this case is minority
rule); this rule also makes buying land more expensive and risky
-what is fair/reasonable? Should we be more concerned w/ the prior landbuyers who didnt get
the reciprocal covenant in writing, or the new buyer who may have had notice but thought there
were no restrictions (and both paid accordingly)?
4. Neponsit
a) Facts
P is association created to collect $ that Ds must pay as a covenant for maintenance of common
b) Rules and Reasoning
Though not real VP, which is necessary since benefit cant be in gross, it is there in substance.
Also touches and concerns b/c Ds get benefit to their land value from it.
c) Issues
Vertical privity of estate

-should we view a neighborhood association as representatives/agents of the whole, or as

property owners themselves? Then could any homeowner sue another? Some jurisdictions still
require strict VP for benefit to run
-common law-covenant cant be created for third party benefit
Touch and concern
-traditionally affirmative burdens, esp paying $ did not touch and concern land. Main modern
exception-common interest communities.
-restatement view of T & C-generally all covenants are valid at the start, policy concerns may
invalidate them from running w/land. Looks at effect on marketability, unconscionable.
-modern view-T & C if the benefit to land outweighs burden overall
-also think about who is bringing lawsuit, and what you would say if it was the other guy (might
be different answer-should it?)
5. Caullett
a) Facts
P bought land w/ covenant that D would get to build any structures on it. D says price reflects
b) Rules and Reasoning
Doesnt run w/ land b/c it doesnt touch and concern land. Benefit cant be in gross; it must
benefit land (unless community interest, part of neighborhood plan)
c) Issues
-some jurisdictions allow benefit to be in gross, creating special termination if beneficiary
becomes too hard to locate
-but ok for easement benefit to be in gross
6. Scope of Covenants
-for definitions of the terms of covenant, could look at contract itself, municipal housing codes,
common understandings
-courts may decide to narrow the scope of the easement, rather than terminating it; or creating an
exception for the FHA but otherwise keep the covenant (to keep out students for example)
-waiver can terminate a covenant if beneficiary doesnt enforce it