You are on page 1of 42

PROPERTY

OUTLINE
MAIN PROPERTY TOPICS
I. Adverse Possession
A. People who did not pay for something nevertheless acquire it
B. Applies to real and personal property
C. How to avoid another person from adversely acquiring something they did not actually have/own
II. Estates in land and future interest
A. Conveyance of property over time, as a method of control for parents
B. Limited use right
C. Rule against perpetuity
1. Rule against perpetual control of property by dead people limited to 20 years
III. Chain of title and recording of property interests
A. Title is transferred or taken by successive owners of the property
B. Want to know that you are buying from the true owner
C. Registering concept for all things that are valuable in society want the rest of the world to know
that you own the property
IV. Servitudes (easements + covenants)
A. Burdens underlying owner cannot be pulled back once they have conveyed the property
B. Makes property progressively unmarketable, so they want to clear these of
C. Can arise or be destroyed by AP; can be purchased via transfer
V. Concurrent ownership of property
A. How to create co-ownership
B. Management + termination of co-owned property

CONCEPT OF
PROPERTY
I. PROPERTY
A. Property is a human invention
1. Based on reason, combining law and economics
2. Legal positivism: property exists only to extent that it is recognized by govt
3. Natural Law Theory: idea that certain rights naturally exist as a matter of fundamental justice
regardless of govt action
a. Does not apply to property law
B. Property as rights NOT things:
1. Bundle of sticks can take out certain rights with regard to a particular object, but can still
retain ownership
a. Ex. a person holds legally-enforceable rights in their computers, but do not own the thing
itself
2. Defined by govt legal positivism
3. Rights are relative, not absolute
a. Depends on whether they conflict with others property rights
4. Rights are divisible
a. Can be split among multiple parties (ex. A can have right to use, but B has right to destroy)
5. Property rights evolve as the law changes
a. Stability of title: property rights should be certain and predictable
b. Rights can change as technology changes (ex. with development of planes, landowners no
longer own airspace above their land)
C. Real Property vs. Personal Property
1. Real Property: rights in land an things attached to land
2. Personal Property: rights to moveable items
D. Property Rights

1.
2.
3.
4.

Right
Right
Right
Right

to
to
to
to

Transfer [alienability]
Exclude
Use/Monetize
Destroy

II. FIVE THEORIES OF PROPERTY

A. Protect First Possession


a. First to discover held property rights
b. Early 19th century concept in the US, when resources were plentiful
c. Describes how property rights arose but not why society recognizes those rights
d. RULE OF CAPTURE: first to actually take = owner of rights (Pierson)
B. Encourage Labor
1. John Locke's labor theory: each person entitled to property produced through his own labor
2. If person "mixed" his own labor (owned) with natural resources (unowned), then he will acquire
property rights to the mixture
C. Maximize Societal Happiness (Utilitarian)
1. Jeremy Bentham's traditional utilitarian theory: to maximize the overall happiness of society
a. Property rights given and defined in manner that best promotes welfare of all citizens and
serves human values
b. Property rights = efficient method of allocating valuable resources to maximize societal
happiness/benefit
i. Ex. Recognize that C owns tree so that C can more efficiently utilize tree to benefit
society (like sell nuts to them, use tree as lumber, etc)
A) Issue may be that C might not utilize the tree efficiently (so maybe this relates to
adverse possession)
2. Optimal Level of Production requires property rights system to have:
a. Universality - all valuable, scarce resources must be owned by someone
b. Exclusivity - if no exclusivity, then owner has no incentive to improve the property
c. Transferability - must be able to transfer, otherwise no efficient use of property
D. Ensure Democracy (Civil Republican Theory)
1. Civic republican theory: property rights provide owners with economic security necessary to
make political decisions that serve the common good
a. Ex. Thomas Jeferson envisioned free yeoman farmers who owned land and could therefore
exercise independent political judgment that was vital for true democracy
2. Right to participate in civic duties used to be derived from ownership of property (ex. rights of
slaves after the Civil War)
3. Not common today because ppl acquire economic security thru wages earned at a job, not thru
property ownership
E. Facilitate Personal Development (Personhood Theory)
1. Georg Hegel's personhood theory: property is necessary for personal development
a. Ppl get emotionally connected to tangible things, so much so that it virtually becomes an
extension of oneself individual's right to property should merit special protection if have
this special connection
2. To achieve personal development (to be a person), individual needs some control over resources
in external environment

III.

RECOGNITION OF PROPERTY RIGHTS

A. RULE OF CAPTURE
1. Definition: property rights established through actual taking first to capture or kill = owner
2. Later extended to natural resources (ex. oil)
a. Benefits: deserving ppl would get the resources
b. Costs: difficult to figure out who was first to possess, esp if land was open w/o drawn
boundaries
3. Pierson v. Post (1805)
a. P knew that D was hunting for a particular fox, but P killed and captured it for himself. Lower
court ruled in favor of D bc D was chasing fox first. P appeals.
i. Held: P wins right to the fox because rule of capture creates certainty and consistency.
Possession belongs to whoever captures or killed it.

THEORY
First Possession

Encourage Labor
Maximize Societal Happiness
(Utilitarian)
Ensure Democracy (Civic
Republican)
Facilitate Personal
Development (Personhood)

APPLICATION OF PIERSON V. POST


Rule of Capture
Issue of intents of each person asserting property rights
Both P and D labored on the fox
Theory does not resolve the issue
May need to revise so that whoevers labor changes the nature
of it will get the property rights
Certainty is beneficial to society
Gets rid of foxes that may destroy livestock correct to let P win
Killing foxes encourages agriculture

B. RIGHT TO PUBLICITY
1. Definition: right to ones self and recognition of that self as property
a. Creation as a source of property (White)
b. Violation of this right when a person appropriates a persons name or likeness to his
advantage
c. Can be violated by use of the name alone
2. White v. Samsung Electronics America, Inc (U.S. Ct. of App, 1993)
a. Ps likeness (robot dressed as Vanna White) was used in a Samsung ad, so P sues under CA
Civil Code, CA common law right of publicity, and federal Lanham Act
b. Held: CA Civil Code = P loses statute limits likeness to actual image of P (narrow)
CA common law = P wins statute limits the CA common law right of publicity
(broader)
Lanham Act = P would need to show that reasonable ppl would actually see it as
her endorsing D
c. Dissent: holding is an overprotection of IP rights stifles creative forces when the law is
supposed to nurture it
THEORY
First Possession
Encourage Labor
Maximize Societal Happiness
(Utilitarian)
Ensure Democracy (Civic
Republican)
Facilitate Personal
Development (Personhood)

APPLICATION OF WHITE V. SAMSUNG


P was first to capture/possess her own celebrity P has right to
publicity
- P used what she already owned (self) and labored on it to form her
celebrity (by working on Wheel of Fortune)
- Creation as a source of property
P has right to promote self for entertainment purposes, which has
societal value
Ps right to own self/wages gained from giving her the right to
participate in society
Ps celebrity is an extension of herself

3. Dead Celebrities
a. Post-mortem right of publicity is not appropriate considering the five property theories
THEORY
First Possession

Encourage Labor
Maximize Societal Happiness
(Utilitarian)

APPLICATION TO ESTATES OF DEAD CELEBRITIES


- Estate was not the first to possess the right of publicity for the dead
celebrity
- Dead celebrity was the first to possess this right
- Dead celebrity does not use its own labor to generate revenue
- Estate uses dead persons celebrity to generate the revenue for
themselves
- It is more difficult for society to enjoy the fruits of dead celebritys
labor or the freedom of using others artistic expression

Ensure Democracy (Civic


Republican)
Facilitate Personal
Development (Personhood)

- No democratic function if the person is dead


- Dead person has no further personal development

C. OTHER PROPERTY RECOGNITION ISSUES


1. Bilida v. McCleod (U.S. Ct. of App, 2000) P kept raccoon as pet, but state took it away from
her bc raccoons are not recognized as property or pet under state law
i. Held: P loses. P had no property interest in the raccoon bc state makes it illegal to
possess it w/o permit
A) Quasi property right: ct held P had right to be notified if raccoon needed to be
euthanized
1) for limited periods of time, state can recognize a limited property right
ii. RULE: Only property interests that are recognized under state law can be protected by
the due process clause of 14th Amendment legal positivism
2. Students Rush to Web Classes Coursera Article
a. Couseras right to the courses they ofer raises issues as to whether they have full property
rights on them and whether they can exercise all of those rights
i. Right to monetize not used yet
ii. Right to exclude but exercise of this right does not define the property right
A) If cannot prevent ppl from using your property for free no property right
3. Actress sues Muslims Producer, YouTube
a. Ps two property claims: 1) right to publicity, 2) copyright
i. Since there was no valid contract where P gives up all rights to the film, P has part
ownership
ii. As part owner, P requests that video be taken down bc it cannot be posted to YouTube
without consent of all owners
b. Invokes right of publicity CA Civil Code 3344: Use of anothers name, voice, signature,
photograph, or likeness for advertising, selling, or soliciting purposes
4. Websites are sued for charging to remove mug shots
a. Look to the commerciality of mugshots on the website
b. Where does most of the revenue come from (primary source of income)?
i. Revenue here comes from taking the mugshots down or from advertising
c. Another issue is whether the websites are even newsworthy

IV.

RIGHT TO TRANSFER

Right to Transfer
Any owner may freely transfer or alienate any of her property to anyone
Limitations (often for public policy reasons)
o Who can transfer
o What can be transferred
o How it can be transferred
A. Economically important bc it ensures that property is devoted to its most valuable use
B. Property law favors free alienation of property as a general matter
C. When title is conveyed assumed that use and ownership of that land is also conveyed
1. Use and ownership can be considered separate and independent rights
a. Was use AND ownership being conveyed? Or JUST the use rights?
D. Issue: what specific circumstances should alienation be restricted?
E. Cases

1.

Johnson v. MIntosh (SCOTUS, 1823)

a.

P bough land from Native Americans and wanted for U.S. govt to recognize the title
b. Held: D wins. First-in-time discovery rule governs. Here, the British discovered the land,
who then transferred the rights to the land to the US federal govt. Native Americans had no
property rights to give to P even though they were living on the land.
i. Native Americans did not have title to land bc

2.

A) Prior payment (Europeans gave them civilization and Christianity)


B) Abandonment (Natives receded as more Europeans came to US, 3)
C) Undue delay in claiming title
c. Lesson: Chain of title issue here need to show that there is a property entitlement that
you can protect
d. Lesson: property rights can be severed Natives may have had the right to use the land
but not necessarily the right to transfer the land, since they did not have ownership to it in
the first place, at least thats the case according to US law at the time
Moore v. Regents of University of CA (CA Sup Ct, 1991)

a.
b.
c.
d.
e.

Ps bodily tissue was used without his consent to manufacture patented product that has
market value of $3 billion
Held: D wins. P did not have right to ownership of his cells, so he did not have right to
transfer them. D acquired ownership of Ps cells when they excised them.
Conversion = strict liability tort, so good faith is irrelevant
Public policy is against ppl selling bodily materials many serious and unintended
consequences
If take too many sticks from the bundle, then you no longer have property

V. RIGHT TO EXCLUDE
Right to Exclude
Right

to exclude others from benefiting from your ownership to the property


Implemented through doctrine of trespass
One of the most essential sticks in the bundle heavily protected
Can only exclude if there is a legitimate reason for doing so
Limitations:
o Privilege Consent + Necessity
o Changing society community values v. egalitarian goals
o Right to roam (England) right to exclude v. publics interest to access land (ex. for hikes)
TEST: Landowners right vs. publics interest to access

A. Trespass
1. Definition: any intentional and unprivileged entry onto land in the possession of another
a. Trespass exists despite good faith mistake
2. Developed under enclosure mvmt in 18th century England
3. Reasons prohibiting trespass
a. Protection for owners incentivizes owners to make efficient use of their land; way to
maximize economic value
b. Policy reasons not allowing D to trespass even if no damage occurs is enough to protect
right to exclude
4. Use interest balancing to determine whether there was a necessity for the trespasser to
enter the property
a. Landowners right vs. publics interest to access
B. Privilege
1. Does not constitute trespass
2. Consent
3. Necessity for survival, when fundamental rights are being infringed, etc
4. Implied License/consent
a. Expectation some ppl (ex. solicitors and hunters) have implied permission for limited
purposes
b. In many areas, without No Trespassing sign, there is a right to enter land can overcome
by placing a sign
C. Cases

1. Jacque v. Steenberg Homes (Wisc Sup Ct, 1997)


a. P sued D for trespassing on their land when D was trying to move a mobile home across to
Ps neighbor, despite P explicitly telling D that he could not trespass onto his land.
b. Held: P wins. Ds act was an intentional trespass. If allow D to win, then Ps right to exclude
others from his property will be infringed. Law and courts must protect the right to exclude.
Punitive damages are appropriate here bc $30 citations are no enough to deter D from
trespassing again. P was afraid of AP.
2. State v. Shack (NJ Sup Ct, 1971)
a. P sues D for entering land to provide medical aid and info about legal services to Ps migrant
worker
b. Held: D wins. Right to exclude is not absolute must give up right when its necessary
and afects the well-being of the occupants.
i. Right to enjoy the associations common among our citizens can allow
visitors

VI.RIGHT TO USE
Right to Use
Right to use property in any way owner wished, as long as he did not harm the rights of others
Core value of ownership
Consistent with utilitarian theory owner knows best how to use the land productively for the
benefit of all
Limitations
o Nuisance
o Spite fence
o Statutes + ordinances
TEST: trespass vs. nuisance

A.

Private Nuisance

1.

2.
3.

Elements:

a.
b.
c.
d.
e.

Intentional
Nontrespassory
Unreasonable
Substantial interference with
Use of enjoyment of Ps land

Used to resolve land use conflicts law to protect the rights of both P and D (balancing test)
May be inconsistent with the idea of free society

a.
4.

Reasonable Use Doctrine = one must share the resources even if he was the first to
discover the source of water
Trespass vs. nuisance need to determine this all the time!!!

a.
b.

Trespass = strict liability


Nuisance = balancing test (uncertain) look at how substantial the interference is

B. Spite Fence: landowner cannot erect and maintain an otherwise useless structure for sole purpose
of injuring or annoying his neighbor
1. Universal view: where structure serves a beneficial and useful purpose no COA

C. Cases
1. Sundowner Inc. v. King (Idaho Sup. Ct., 1973)
a. D built a sign along property line shared with Ps property, blocking 80% of light and air to
Ps motel rooms next door. D claims that it is not a useless structure bc it had advertising
value

2.

b. Held: P wins. Sign is actually a spite fence cannot infringe upon ppls right to breathe
and enjoy sunlight if the fence was built out of spite/malice. Advertising value would have to
be more than value denied to P in order for it to be not deemed a spite fence
i. Ruling does not define the scope of the spite fence rule. Possible remedies are:
A) Enjoin the nuisance
B) No nuisance
C) Enjoin the nuisance, unless pay the other side a certain amt
D) No enjoinment, but have to pay
Prah v. Maretti (Wisc. Sup. Ct., 1982)

a.

P sues D for building house in a location that would cast shadow on Ps house, thus
interfering with his right to sunlight and to use that sunlight as an alternative resource for
energy (P had solar panels)
b. Held: P wins. Private nuisance law is applicable
i. Ps right to access sunlight as source of energy > Ds right to use land unreasonably
impairs use and enjoyment of another
ii. Changing public policies allowed for right to access to sunlight to be recognized

VII.

RIGHT TO DESTROY

Right to Destroy
Right to destroy your own property. Logical adjunct to the right to use
Limitations
o When property to be destroyed has substantial value
o Courts are less likely to allow destruction if it were by decedent by will fewer
restraints if alive
TEST: expressive interests vs. substantial economic/social welfare interests
A. Scope of this right is unclear
1. Intent should matter bc the reason to destroy may actually benefit society more than keeping it
2. Common economic theory: cant destroy property when youre dead bc you dont live with
the consequences of your actions
3. History landmark laws: usually do not express restriction on owners ability to destroy, but
could be implied?
4. Destruction of Animals animals are thought of as property, but there is no right to destroy
them when there is no sense to do so
5. Eminent domain could be used by the city to limit destruction of property
6. Moral rights of artists moral rights = right to prevent current owner from destroying or
significantly modifying artwork
B. Law rarely intervenes to prevent destructions exception: Eyerman (below)
1. Strahilevitz: this may actually hurt society if we dont allow ppl to destroy their property
stifles progress
a. Expressive interests vs. substantial economic/social welfare interests
C. Cases
1. Eyerman v. Mercantile Trust Co. (Missouri Ct of App, 1975)
a. P, neighbors of the decedent, brings suit to enjoin the destruction of the decedents house,
since the decedent had put in her will that she wanted it to be torn down after her death.
Historical landmark regulations were put into the efect after decedent had died.
b. Held: P wins. P has a legally protectable interest that is greater than the interest in
protecting the decedents will which seems to have been made on a whim, so the house
cannot be destroyed.
i. Against public policy to all executor to exercise such great power based on whim of
testatrix

ADVERSE
POSSESSION
I. ADVERSE POSSESSION

A. Definition: when a person who does not own the land but nevertheless acquires it without the
owners consent, through occupation during a long enough period while meeting certain conditions
1. Ex. IF A occupies Bs land for long enough period while meeting certain conditions A acquires
land without Bs consent
2. Long enough period is determined by statute
3. AP usually happens by mistake
4. Prescriptive rights/easements can be acquired via AP
5. If you sleep on your rights to a property, then you lose it
6. AP can only grant either a FSA or use rights [prescriptive easements]
B. Tacking
1. Possible to tack on time to establish AP as long AP(2) can show he was voluntarily conveyed
land from AP(1) privity
a. Privity: voluntary transfer of property by deed or will from one possessor to another
i. Good faith can show privity
ii. Partial interest
iii. Spectrum: marginal connection btwn successive APers w/o actual transaction transfer
of deed
b. Example: Statute says 10 years to establish adverse possession AP occupies land for 5
years, conveys land to AP(2), AP(2) lives there for another 5 years, and AP(2) acquires land
via adverse possession
i. Original possessor would actually want the time period to restart once AP conveys to
AP(2)
A) But principle is that original possessor had such a long time to check their own
property and to kick someone of should have asserted right to the land earlier
2. Makes sense where there is color of title
C. Airspace: most states say that ppl have ownership of airspace 500ft above their property
D. Subsurface: modern view is that ground rights limited to only as far as use is
reasonable/foreseeable by the owner

Elements of Adverse Possession (all elements must be met to have AP)


1.

2.
3.
4.

5.
6.

Actual Must use in same manner as reasonable person would given its character, location, and
nature
o Gathering and removing natural resources = actual
o Recreational use actual possession
Exclusive cannot be shared with owner or public (no third party)
Open and notorious possession must be visible and obvious to put owners on notice that
their title is being challenged
Adverse and hostile not applicable if possession authorized by owner; could be based on
good faith, state of mind being irrelevant, or bad faith depending on the state
o Hostile = intent to possess, occupy, control, use and exercise dominion w/o true owners
consent
o Claim of right: some mindset is reqd, but cts often say that objective conduct
demonstrates this
Continuous continuous as a reasonable owner's possession would be (sporadic use is OK if
reasonable owner would also use it sporadically)
For statutory period 5-40 years, but usually 10, 15, or 20 years

E. Claim of title = APer must have acted knowingly


F. Color of Title = deed, judgment, or another written document that is invalid for some reason

1. Standards of AP based on color of title are easy to meet in many states (shortened time period,
able to acquire more land) but having deed establishes good faith that you honestly believed
you had ownership to whole property
2. If APer comes onto land w/ deed for whole property but only adequately occupies a small portion
of it, the APer will acquire the whole property
3. Color of title actual title nor claim of title
G. Types of Notices
1. Actual notice when you are told about it
2. Record notice a reasonable person would have looked at the record
3. Inquiry notice reasonable person would ask the appropriate person
H. Justifications for AP
1. Preventing frivolous claims
a. AP bars lawsuits based on stale, unreliable evidence and protects occupants from frivolous
claims
b. Gives occupant security of title encourages productive use of land
2. Correcting title defects
a. Lengthy possession serves as proof of title where there may have been technical mistakes in
the conveyance of title to land
3. Encouraging development
a. Encourages economic development by reallocating title from idle owner to an industrious
squatter
b. This is a major theme in real property law develop land for productive use
4. Protecting personhood
a. Property that one has enjoyed as used as his own for a long time = extension of that person
should be protected
I. Cases
1. Gurwit v. Kannatzer (Missouri Ct of App, 1990)
a. P acquired parcel of land that actually belonged to his neighbor via AP. He was shown the
land when he bought the property from the previous owners, but the land was not actually in
the deed. P won quiet title action, but D appeals. P has minimal activities
b. Held: P wins. All elements of AP proven. Hostility proven when P put out no trespassing
signs and treated the parcel as if it belonged to them (in the same way that D would have
used the land)
2. Van Valkenburg v. Lutz (NY Ct of App, 1952)
a. P bought triangular tract of land that was used by D for over 30 years. D acknowledged Ps
title to land but wanted an easement for the road that he built to get to paved road. D claims
AP D had extensive activities
b. Held: P wins. D failed to show actual occupation for over 15 yrs, exclusivity, and possession
under claim of title (ie hostile mindset)
i. NY law reqd CL elements of AP as well as addt reqmt (ie claim of title) to show AP

II. STATE OF MIND IN ADVERSE POSSESSION

A. Adverse and hostile element is most difficult to prove, so most jurisdictions say that intent is
irrelevant
1. Good faith AP must have good faith belief that she is owner of land
2. Bad faith AP knows she is not the owner but intends to take title anyway
B. Land Piracy court recognizes your title if you purposely do the minimum reqmts to acquire via
AP in juris where intent does not mater
C. Good Faith now normally not required in most jurisdictions, but most imply it anyway
D. Cases
1. Fulkerson v. Van Buren (Ark Ct of App, 1998)
a. P asserts claim o land that D occupied for 13 years. D was a church group that changed the
nature of the property. P did asked that D to leave property in 1994 but D refused. Lower
court said AP to D. P appeals.
b. Held: P wins. Not continuous for more than 7 years and not with intent to hold against the
true owner. Intent was not clear and distinct and did not begin until D acknowledged Ps
title to land (and this was fewer than 7 yrs ago), since D was unsure about who owned the
land when they first started occupying the land.

2. Tioga Coal v. Supermarkets General Corp (Penn Sup Ct, 1988)


a. P seeks title for a paper street that actually belongs to D in title. P operated and controlled
access to the street.
b. Held: P wins. P acquired land via AP even though Ps intent was adversely possessing
against the city, not D. All other elements of AP satisfied

III. PROVING ADVERSE POSSESSION


A. AP usually occurs in:
1. Quiet Title Action (Gurwit) AP must bring this up if want title to be shown on public record
2. Defense to owners lawsuit to recover possession (Van Valkenburgh)
B. AP does not need to arise from judicial action can get it automatically w/o court recognition
C. Sometimes difficult to prove continuous element, esp when tacking is involved
D. Privity usually is reqd for tacking to occur and can be shown by good faith
E. Cases
1. Howard v. Kunto (WA Ct of App, 1970)
a. P files quiet title action to obtain land (summer property) they had title to and on which D
b.

IV.

was living. Survey of land 30 yrs prior was incorrect.


Held: D wins. D gets AP via tacking. Occupancy during the summer does not destroy
continuity because occupancy was in the same manner that the true owners would have
occupied it

DISABILITIES AND IDENTITY OF PARTIES

A. Disabilities
1. If landowner is disabled, AP period can be extended, making it more difficult for APer to acquire
land
2. Types of disabilities:
a. Imprisonment
b. Minority (under age of majority)
c. Lack of mental capacity
d. Military service or those who reside out of state [depends on the state]
3. Effect of disability on statutory period varies by state, but can include:
a. Suspend running on the period until disability is removed
b. Provide a limited period of time after the disability ends within which suit must be brought
[most states]
c. Only disability that exists at beginning of AP period will extend statutory period
d. Death ends disabilities
e. Disabilities cannot be tacked and cannot shorten the std period for AP
B. Identity of the Parties
1. APer only acquires whatever interest the owner has in the same property
a. Ex. if owner had a life estate, APer receives only a life estates as well
2. AP not available against owner who does not hold the present right to the possession of land
3. Cannot AP against state of local govt unless land is used for proprietary or nonpublic
purpose

V. PERSONAL PROPERTY ADVERSE POSSESSION


Adverse Possession of Personal Property
SOL bars prior owner from bringing action to recover possession gives title to APer
Statutory period for AP of personal property is must shorter than for real property
Tacking is OK as long as there is privity
Applies to intangible property
EXCEPTION: fraud + concealment SOL will not bar recovery
TEST: good faith for value + open/notorious + SOL expired AP

10

A. Approaches to AP of Personal Property


1. Common Law Rule
a. SOL focuses on APer
b. SOL starts when taking happens
c. Issue: SOL may expire before true owner learns that the chattel is missing

2. Discovery Rule
a. SOL focuses on owner in record
i. Owner must be diligent in looking for property actively searching vs. just thinking
about it
ii. When owner stops being diligent, then SOL begins to run
b. SOL begins only when owner discovers (or reasonably would have discovered) where chattel
is and stops being diligent about looking for it(?)
c. More holistic bc it takes into acct both sides facts
d. Issues
i. Definitional doubt dont know what constitutes diligent
ii. Predictional difficulty

3. Demand and Refuse Rule


a. SOL focuses on owner
i. Protection for totally innocent owners but not so protective of downstream good-faith
owners
ii. Diligence does not matter
b. SOL begins when owner demands property back, and it is refused
i. SOL will continue to run no matter what
c. Applied in instances where owner not likely to get property back

4. UCC 2-403
a. General Principle: cannot convey more than what you have
b. If person has voidable title, can transfer a good title to a good faith purchaser for value
i. Good faith purchaser = gives valuable consideration to an item without knowing about
its adverse claims
ii. Voidable = in btwn void and full title, if someone with superior title comes alone, then
property can be taken away
c. If entrust a possession of goods to a merchant who deals in goods merchant has right to
transfer all of the rights to a buyer in ordinary course of business
B. Cases
1. Reynolds v Bagwell (OK Sup Ct, 1948)
a. Ps violin was stolen over 5 years prior to suit and seeks to reclaim it from D, who bought it
from someone who had acquired it from a thief

11

b. Held: P wins. SOL (2 yrs in OK) bars P from recovering violin, P was acting in good faith,
use of violin was open/notorious bc daughter had used it constantly in violin class
i. Common Law Rule
ii. If P acquired violin through fraud/concealment probably no AP
2. OKeefe v. Snyder ( NJ Sup Ct, 1980)
a. Ps paintings were stolen and he found them in an art gallery about 20 yrs later. Paintings
were, for the most part, concealed bc they were in Ds home. P sues to recover paintings.
b. Held: D wins. AP occurs here based on discovery rule. SOL began when P knew or should
have known where the violin was. The owners diligence further(?) delays the start of SOL
i. Burden shifts to owner to show that there was diligence in trying to find the chattel

12

ESTATES AND FUTURE


INTERESTS
I. INTRO TO ESTATES

A. Divided into present interests and future interests


1. Both types of interests can be transferred
B. Conveying land = conveying estate, not the land itself
1. Present possessory interest + Future interest

Conveyance
Method

In other words

Parties

Action

Deed
Will

Inter vivos
Testamentary transfer

Grant/convey
Devise

Intestate Succession

Die w/o will, determined


by state statute

Grantor grantee
Testator/Testatrix
Devisee
Estate Heirs

Descending by
operation

C. Type of Freehold Estates


1. Fee Simple Absolute dominant in U.S.
2. Life Estate common in modern trust
3. Fee Tail rare in U.S.
4. Fee Simple Defeasible - (estate that may end upon occurrence of some future event)
a. Fee Simple Determinable
b. Fee Simple Subject to a Condition Subsequent
c. Fee Simple Subject to an Executory Limitation
5. [Term of years] aka leasehold for set amt of time
D. How to Determine Type of Estate Conveyed
1. Testators intent
2. Rules of construction
E. Restraints on Alienation
1. Definition: provision in deed or will that prohibits or limits a future transfer of the property
(against public policy which promotes free alienation)
2. Three Types
a. Disabling restraint prevents transferee from transferring her interest
i. Ex. O conveys to B, and any conveyance B makes is void
b. Forfeiture restraint leads to forfeiture of title if transferee attempts to transfer her interest
i. Ex. O conveys to B, but if B ever tries to sell the estate, then to D.
ii. Interest in Blackacre AND conveyance would be lost/invalid
iii. Cts tend to favor this
c. Promissory restraint stipulates that the transferee promises not to transfer her interest
i. Ex. O conveys to B, and B promises that she will not sell the estate

II. FEE SIMPLE ABSOLUTE


Fee Simple Absolute
Holder has all rights in the bundle of sticks. Potentially infinite with no future interest
accompaniment.
Most marketable interest
Can be conveyed to corporations
Assumed to be this type unless words of limitation used
Transfer rights: alienable, devisable, descendible
Example: To Cheryl Harris or To Cheryl Harris and her heirs
A. Words of Limitation
1. and his heirs = describes the estate being granted as a fee simple [SHOULD BE INCLUDED]

13

2. forever and ever = not words of limitation; shows intent to give entire estate in fee simple
3. to G, its successors, and assigns = describes the estate being granted as a fee simple
B. Words of Purchase = describes the grantee
C. Cases
1. Cole v. Steinlauf (Conn. Sup Ct of Errors, 1957)
a. P agreed to buy real estate from D, but the contract said that if there is a defect, P can reject
the deed and be repaid all sums, P found defect in previous deed in that it contained no
words of limitation, so its unclear whether he was buying a fee simple. P tries to monies
back, but D refused.
b. Held: P wins. Since words of limitation were missing, its unclear what type of estate P
was buying. Lack of his heirs make it so that Ds chain of title only runs to the grantee. P
wanted a fee simple, but D didnt have this to convey. D only had a life estate (and his
assigns forever)

III. LIFE ESTATE


Life Estate
Measured by a persons lifetime. When the person dies, the estate terminates
Present interest: persons lifetime
Future interest (FSA, unless otherwise noted)
o Reversion when life tenant dies, reverts back to original owner (To B
o Remainder when life tenant dies, third party owns the remainder (To B for life, then to
C)
Transfer rights: alienable ONLY
o But grantee of life estate pur autre vie can devise/descend his life estate
Cannot be a partnership, corporation, or similar business entity (bc they have potentially infinite
lifetimes)
Language: for life
Example: To A for life.

Life Estate pur autre vie


Life estate measured by anothers life
Usually created when a holder of a life estate conveys his interest to someone else
If B holds life estate measured by his own life and then sells his interest to D, D has life
estate pur autre vie but Ds estate ends when B dies
Example: To B for Cs life
A. Legal life estate = ordinary life estate rare
B. Equitable life estate = existence of a trust
1. Trustee = holds legal title to trust property and manages the assets as a fiduciary for the
benefit of the trust beneficiaries interests of beneficiaries usually split into present and future
interests
C. Holographic wills = written entirely in handwriting of decedent and signed by her valid +
enforceable
D. Waste
1. Imposes a duty on the life tenant to use the property in a manner that does not significantly
injury the rights of the future interest holders
a. EXCEPTION: if the alteration would improve the property alteration/destruction = OK
b. Types:
i. Voluntary waste affirmative act that significantly reduces value of property
ii. Permissive waste failure to take reasonable care to protect the estate
iii. Ameliorative waste affirmative act that leads to substantial change in property and
increases its value
2. Life tenant is motivated to maximize his short term gain in having interest in life estate

14

3. Future interest holder wants property to be maintained in its original condition so that it wont
be destroyed when he gets it
B. Issues with Life Estates:
1. Not enough legal protections for the future interest holder
2. Present life tenant has not incentive to improve the value of the property past her lifetime
3. Waste doctrine exists to protect the future interest holder from harms the present life tenant
does to the property
C. Cases
1. White v. Brown (Tenn. Sup Ct, 1977)
a. I wish Evelyn White to have my home to live and NOT to be SOLD is in testatrixs will.
Ambiguity issue: is this a FSA or life estate to White?
b. Held: P wins. This is a FSA bc testators intent and rules of construction support this
conclusion.
i. Not to be sold acts as a restraint of alienation, and cannot be applied to life estates
thus, this is FSA
2. Woodrick v. Wood (Ohio Ct of App, 1994)
a. P, future interest holder, wanted to enjoin P, present life estate holder, from razing the barn.
P says barn is worth $3200, but D says property can be made more valuable if used as
residential property.
b. Held: D wins. Present interest holder can make changes if it improves the property
i. Ameliorative waste here bc destruction for improvement

IV. FEE TAIL


Fee Tail
Right to possession of estate for the duration of your life, and it will pass on to lineal descendants upon
death
Present Interest: lives of the lineal descendants of a particular person
Future Interest: reversion when bloodline ends, holder of Os reversion gets FSA
Transfer Rights: alienable [limited], descendible
o Alienate rights to possession only until death
o Descends only to lineal descendants
Language: and heirs of his body this is REQUIRED
Example: To G and the heirs of her body
A. Generally disfavored in courts heir will get a FSA in jurisdictions that do not accept fee tails
B. Disentailing the tail = inter vivos transfer to another person to convert fee tail to FSA
C. Critiques:
1. Undermines democracy
2. Impairs freedom of alienation
D. Rule against perpetuities enough deadhand control
E. Variations
1. Fee simple male: To G and the male heirs of her body passes only to male descendants
1. Fee simple special: To G and the heirs of her body by R passes only to descendants of a
transferee who are parented by a particular person

VI. FEE SIMPLE DEFEASIBLE


A. Definition: fee simple that may continue forever or may end upon the occurrence of some future
event
1. Variation of a FSA that has conditions
B. Often used to make gifts of land to public entities or charitable institutions, esp when grantor wants
to transfer rights only for a specific use
C. Presumption: fee simple subject to a condition subsequent bc it has the smallest risk of forfeiture,
as compared to fee simple determinable
D. Transferring Future Interests

15

1. CL: future possessory interest could only be transferred through intestate succession to holders
heirs would make the market more marketable
2. Need to figure out the fair market value in order to figure out the future interest
E. Condemnation Periods: holder of the fee estate receives all condemnation proceeds on the
theory that such a contingent future interest is highly unlikely to become possessory
F. Not subject to waste bc future defeasible fee interests are too contingent, speculative, uncertain,
insubstantial to qualify for protection
G. Statute of Limitations
1. Fee simple determinable = SOL limitations period begins to run as soon as it ends
2. Fee simple subject to condition precedent = FSSCS continues until grantor exercise right of
entry and SOL starts then
H. Laches = Ps unreasonable delay in asserting an equitable claim causes prejudice to the D

Fee Simple Determinable


Fee simple that ends when a certain event or condition occurs, giving the right to the transferor
Present interest: Fee simple that is cut short if event/condition occurs
Future Interest: Possibility of reversion only retrained by transferor or his heirs
o Automatically becomes possessory when condition happens
Transfer rights: alienable, devisable, descendible
Language: so long as while until during
Example: To A, as long as wetlands are maintained on Blackacre

Fee Simple Subject to Condition Subsequent


Fee simple created in transferee that may be terminated at the election of the transferor when an
event/condition occurs
When condition occurs, transferor has the option to terminate the estate by taking action [not
automatic]
Present Interest: Fee simple that could be cut short if event/condition occurs
Future Interest: right of entry
Transfer rights: alienable, devisable, descendible
Language: provided that, but if, on condition that transferor has right to re-enter and
reclaim property
Example: To G and her heirs, but if Alaska secedes from US, then O has right to re-enter and
reclaim the land.

Fee Simple Subject to an Executory Limitation


Fee simple created in transferee that is followed by a future interest in another transferee
Present Interest: Fee simple that could be cut short if event/condition occurs
Future Interest: executory interest held by a another party (i.e. transferee or a third party,
rather than retained by transferor)
Transfer rights: alienable, devisable, descendible
Language: so long as, while, during, until, provided that, but if, on the condition
that
Example: O conveys to G and her heirs so long as Alaska does not secede from the US, then to
M and her heirs

I.

Cases
1. Marenholz v. County Board of School Trustees of Lawrence County (Ill. App Ct, 1981)
a. Deed conveyed land for schools use. Deed said land to be used for school purpose only,
otherwise to revert to Grantors herein. After several years, the grantor died and the school
was closed and used as storage.

16

b. Held: deed was a fee simple determinable whose interest automatically reverted back to
original grantor
i.
First and second phrase looked at together = FSD; if look at it alone, doesnt look like
FSD
2. Metropolitan Park District v. Unknown Heirs of Rigney (WA Sup Ct, 1965)
a. P seeks quiet title of land via AP that Rigney had owned for years. Rigney conveyed land to
Tacoma Light and Water company for water supplying services and noted that owner has
right to re-enter land if land stops being used for water supply (fee simple subject to
condition subsequent). Use for water supply has been stopped for years, much longer than
SOL
b. Held: P wins. Even though it was a fee simple subject to condition subsequent, the SOL to
re-enter land has expired. Land was not even being used for the violated purpose nor for
the real purpose.

V. REMAINDERS
A. Requirements (need both)
1. Capable of becoming possessory immediately upon expiration of prior estate
a. Possibility of possession = OK as long as future interest holder might and is capable of

satisfying condition
Does not divest (cut short) any interest in a prior transferee
a. "To B for life, then if D becomes president, to D" D has remainder; B's life estate needs to
end before D gets estate
b. "To B for life, but if D becomes president, to D" D has executory interest; D will cut short
B's life estate if becomes pres.
B. Freely alienable
C. Ambiguity:
1. Presumption is that it is a vested remainder
2. But need to look at the exact language used in the deed/will

2.

D. Vested Remainders (guaranteed possessory interest)

Indefeasibly vested remainder


Ascertainable person alive and identifiable at time of transfer (ex. NOT unborn children), AND
No condition precedent no condition to be satisfied before future interest becomes possessory
Vested remainder subject to divestment
Vested remainder that is subject to a condition subsequent
Future interest could be divested/terminated if a condition is satisfied or occurs
Example: To B for life, then to D, but if D doesnt survive B, then to E D could lose his interest
if he dies before B

Vested remainder subject to open


Held by one or more living members of a group or class that may be enlarged in the future (size
of future interest would decrease as group becomes bigger)

A. Contingent Remainder (possible possessory interest)

Contingent Remainder

Requirements:
o Given an unascertainable person, OR
o Subject to a condition precedent
Cannot be conveyed by deed or will
Alienable, devisable, descendible

17

VI.EXECUTORY INTERESTS
A. Future interest in transferee that must divest another estate to become possessory
1. Exact opposite of a remainder
a. Can become possessory immediately after the expiration of the prior estate OR
b. Can divest any interest in prior transferee
2. Alienable, devisable, descendible
Springing executory interest
Divests the transferor [original owner]
o O conveys "to B for life, then one year after B's death, to D and his heirs"
B = life estate
D = springing executory interest bc D's interest will divest O's interest [cut short]
D not capable of becoming possessory at the expiration of B's life estate

Shifting executory interest


Transferee [intermediate owner] is divested
o O conveys "to B and her heirs until humans land on Mars, then to D and his heirs"
B = fee simple subject to executory limitation
D = shifting executory interest bc D cannot do anything to cut B's estate short

VII. RULE AGAINST PERPETUITIES


A. Imposes a time limit on how long uncertain future interests could continue [required that
uncertainty be removed within a set period of time]

Rule Against Perpetuities (RAP)


"No interest is good unless it must vest, if at all, no later than 21 years after some life in being
at the creation of the interest"

B.
C.

Rule was created as a compromise between 1) landowners who wanted to create conditions on
future interests in transferees and 2) commercial interests to ensure that title of land was freely
marketable
Applied to:

1.
2.
3.

Contingent remainders
Executory interests

Vested remainders subject to open


D. Rule was a way to limit landowners freedom to control future interests far into the future
E. What might happen TEST;
1. If can logically prove that future interest will vest or forever fail to vest within the
perpetuities period (a life in being plus 21 years) future interest = valid
2. IF possibility that interest might vest over 21 years from death of relevant lives in being
future interest = void when created
3. If can think of any situation where interest might vest outside the perpetuities period VOID
a. ANY POSSIBILITY WILL MAKE IT VOID
F. Other Notes
1. Vesting is not required more about whether it MIGHT vest too late
2. Perpetuities Period = date of death of the last individual who was alive when interest was
created + 21 years

18

3. Some life in being = someone who was alive and afects vesting in some way; NOT afterborn ppl
a. Often use life of healthy infant as the measuring life in order to extend the time period of
control as much as possible
b. Does not include corporations, partnerships, and govt entities
4. If void for one member of class, then it is void for the entire class
a. EXAMPLE: Vested remainder subject to open: could be void for the entire class bc of an
unborn decreasing the future interests of those in the class later on
G. Steps to Take when Applying the Rule:
1. ID contingent interest
2. List the lives in being [bracket the future interest that RAP applies, strike whatever did not
survive and read whats left]
3. Consider whether anyone can be born who might afect vesting
4. Kill the lives in being at some future date and add 21 years
5. Is there any possibility that the contingent interest will vest after this point?
a. Yes void
b. No valid
H. CASES
1. Jee v. Audley (1787)
a. unto my niece Mary Hall and the issue of her body and in default of such issue to the
daughters then living of John and Elizabeth Jee Are the futures interests in living Jees
daughters void under RAP?
b. Held: Yes, Jees daughters future interests are void because:
i. There is a possibility that Mary Hall may have children and the daughters interest may
be not vest 21 years after Halls death
ii. John and Elizabeth Jee may have an after-born daughter, and since that after-born was
not alive during this conveyance, it would make the daughters future interests void
(vested remainder subject to open)
A) would make that

II. SUMMARY OF FUTURE INTERESTS


A. Retained by transferor
1. Reversion
2. Possibility of reverter
3. Right of entry
B. Created in transferee
1. Remainder
a. Indefeasibly vested remainder
b. Vested remainder subject to divestment
c. Vested remainder subject to open
d. Contingent remainder
2. Executory interest
a. Springing executory interest
b. Shifting executory interest
C. Rule Against Perpetuities as a limit to future interests in order to clear burdens on the land

19

PRACTICE HYPOS
Pg. 344(d)
(1) O conveys to B and his heirs so long as the land is not used as a nightclub
(2) O devises to C and her heirs, but if Boston becomes a state then Os heirs have the right to reenter and retake the estate
(3) O conveys to D for life, then to M and her heirs while the well continues to provide water.
(4) O conveys to E and her heris provided that alcohol is never served on the premises
(5) O conveys to First Baptist Church provided that the land is used as a church, then to Google Inc.
Pg. 353(b)
(1) O conveys to A for life, then to B
(2) O conveys to C for life, then to D and his heirs if D lives to the age of 30.
(3) O conveys to E for life, then to Fs children and their heirs.
(4) O devises to G for life, then to H, but if H doesnot survive G, then to L.
(5) O conveys to J for life, then to K for life, then to Ls children. Assume that L is alive and has one
child, M.
Pg. 356
(1) O conveys to A 15 years from now.
(2) O devises "to B for life, then to C, but if D should return to New York, then to D"
(3) O conveys "to E when E marries"
(4) O devises "to F as long as no alcohol is served on the property and if alcohol is served there, then
to Alcoholics Anonymous
(5) O conveys "to G for life, and then to H if H becomes a lawyer"
Pg. 364, 373
O conveys "to C if anyone finds a cure for cancer"

o
O = fee simple subject to executory limitation
o
C = springing executory interest (bc divests grantor's interest) in FSA
o
C's interest cannot be logically proven to occur within 21 years of O or C's death void
when created
Rule invalidates contingent interests that might vest too late, outside perpetuities

period

O conveys "to C if C finds a cure for cancer"


o
O = fee simple subject to executory limitation
o
C = springing executory interest in FSA
o
When C dies, C either finds a cure [will/has vested] or not [forever fail to vest] valid
when created
Possibility that C will find a cure, if he has not already, dies with him

Because this is more certain, C's future interest can be valid

Interest can never vest outside the perpetuities period

O conveys "to B for life, then M's first child to reach 30". Assume M is childless
o
O = reversion
o
B = life estate
o
M's first child = contingent remainder in FSA void
Void bc when B dies, M's first child might not be 30

O conveys "to B for life, then to M's first child to reach 18". Assume M is childless
o
O = FSA
o
B = life estate
o
M's first child = contingent remainder in FSA valid
Valid bc if M has children, at least one will be 18 within 21 years of her death will

vest

20

Valid bc if M does not have children forever fail to vest

21

CONCURRENT
OWNERSHIP
I. CONCURRENT OWNERSHIP

1. Definition: when more than one individual owns a single property at the same time
2. All co-tenants have equal rights to use and possess the entire property

II. TYPES OF CONCURRENT OWNERSHIP


Tenancy in Common

Joint Tenancy

Tenancy by the Entirety

Exampl "to A and B"


e

"to A and B as joint tenants with


right of survivorship"

"to A and B as tenants by the


entirety"

Interest

Undivided, fractional
[Proceeds in sale will be
divided according to
proportionate share]

Undivided
[Right of Survivorship - when
one tenant dies, the other
absorbs that tenant's interest]

Undivided

Rights

Right to use and


possess the whole
property

Right to use and possess the


whole property
Right of survivorship

Right to use and possess the whole


property
Right of survivorship

Transfer

Freely alienable,
devisable, descendible

Freely alienable, but will sever


the joint tenancy
Breaks unity of time and

title
Right of survivorship

destroyed
Grantee becomes tenant

No transfer -- but can be ended


only by death, divorce, or
agreement by both parties

22

in common w/ other
concurrent owners]
Other
Notes

- Presumption when JT
is not explicit [no right
of survivorship
language]
- Is already like a
severed joint tenancy

Requires all 4 unities [applies


to all of the tenants]:
1 Time - acquire their
interests at the same time
2 Title - acquire title by the
same instrument
3 Interest - must have the
same shares in the estate,
equal in size and duration
4 Possession - equal right to
possess, use, and enjoy
the whole property [same
in TIC]
If time, title or interest is

missing tenancy in
common
If one joint tenant

transfers her interest


Ideal Language:
To A and B as joint

tenants as rights of
survivorship, and NOT as
tenants in common
o
High risk of
aversion approach
aversion from
litigation costs

Applies to married couples


Joint tenancy + unity of marriage
Five unities 4 unities in JT +
marriage
Clearest, most protectable

JT right as possible
Safe from secret severance

and creditor reach


o
Creditor reach can
attach the right of
survivorship that the
debtor spouse has
o
Secret severance

III. Other types


A. Tenancy in Partnership used by individuals who want to jointly own and manage a business
B. Community Property not covered here, but is specific to each state

IV.

CREATION OF CONCURRENT OWNERSHIPS

A. Use specific words


B. For JT, use 4 unities: time, title, interest, possession
C. Consequences
1. Co-management rules
2. Survivorship
a. JT get the whole share of your co-tenants present + future interests when she dies (no
transfer)
b. TIC cross-transfers required to get co-tenants present + future interests when she dies
(requires probate)
c. Straw Person used as a middleman to create JT out of land already owned by one of the
parties (otherwise, conveyance would lack time and title unitites)
3. Creditor Reach
a. Tenancy by the entirety cannot encumber/convey interest from your co-tenant AND the
creditor cannot reach it; troublesome when debtor is 75% contributory and co-tenant is only
25% contributory
D. CASES
1. James v. Taylor (Ark Ct of App, 1998)
a. jointly and severally, and unto their heirs, assigns and successors forever Does this
create a TIC or JT?
b. Held: conveyance is a TIC if no language indicating the right of survivorship (JT), then
assume TIC

23

VI.

SEVERANCE

A. Severance of JT can be done by:


1. Unities Analysis (break the 4 unities)
a. Via transfer/conveyance of one JTs interest to another [CAUTION: leasing + mortgages
may be diferent!]
b. Via adverse possession
2. Intent Analysis (parties intended to break JT)
B. Leases
1. RULE: leases do NOT sever JT
a. Rent is owed only to the lessor JT that is not occupying the property
2. CASES
a. Tenhet v. Boswell (CA Sup Ct, 1976)
i. JT leases interest to D. JT dies during the lease. P, other JT, now claims entire interest in
property. D says no, the lease acted as severance of property. Issue: did the lease sever
the JT
ii. Held: lease did not sever JT, so P gets full interest in property.
A) If the lessor is a JT and dies, the lease will end [other JT has interest in lessees share
and takes it as sole owner of the entire property] if look at it under the intent
analysis
C. Mortgages
1. Requires that the surviving JT pay the debt of the deceased JT creditor will come and demand
debt otherwise
2. Title theory: mortgage is conveyance of title to the mortgagee severs JT (destroys time and
title)
Title
Debtor

$$$$
Creditor

$$$$

Debtor

Creditor

Title

3. Lien theory: mortgage is lien to secure repayment of debt does NOT sever JT (unities
preserved)
Promise to pay
Debtor

$$$$
Creditor

$$$$

Debtor

Creditor

Release of promise

D. Secret Severance
1. Some states allow joint tenants to secretly sever the JT and then devise her interest to another
person
E. Divorce usually severs JT
1. Unities analysis divorce = no co-own property = JT severed
2. Intent analysis assumption is that parties do not intend to continue the JT (but not always
true)

V. PARTITION
A. Partitions end the co-tenancy and distributes its assets accordingly
B. Partition in Kind
1. Division of land into cotenants respective fractional shares
2. Doesnt force sale on unwilling cotenants + leaves them holding same estate as before

24

C.

3. Preferred method and is the presumption, which can be overcome when:


a. Property cant be conveniently partitioned this way
b. Interests of at least one party will be promoted by sale
c. Interests of at least one party will be prejudiced by sale
i. Factors: longstanding ownership, sentimental interest, economic value, desire to keep
ancestral property
4. Will be ordered when the setting the entitlements will be an efficient market-based solution
Partition by Sale

1.
2.
3.

Entire estate sold and proceeds appropriately split when land cannot be fairly divided
Should be used narrowly and sparingly bc it interferes with property rights
Most common method, though not preferred nor the presumption

D. CASES
1. Ark Land Co. v. Harper (West Virg, Sup Ct, 2004)
a. P has 2/3 interest in property co-owned with D and wants the rest of it for coal-mining.
b.

D
refuses to sell.
Held: partition by kind (what D wants) is ordered even though P could get more economic
value out of it.
i. Balancing of the factors to determine prejudice finds that partition in kind is appropriate

VI. CO-TENANT RIGHTS AND DUTIES


A. RULE: no obligation to pay rent to each co-tenant

1. EXCEPTIONS: Ouster MUST pay rent, AP, possibility of reverter, right of entry
2. Each co-tenant must pay his proportional share of expenses

B. Ouster - when a co-tenant in possession refuses to allow another co-tenant to occupy the property
1. Ouster is liable to the ousted co-tenant for her pro-rata share of rental value of ousters
C.

occupancy
Rents and Profits

1.

Each co-tenant is entitled to his proportionate share of all rents and profits derived from the
land
D. Repairs

E.
F.

1.
2.
3.

Repairs only co-tenants benefiting from are liable


Co-tenant who needs repairs will receive a credit for the costs during a partition action only
Repairs could be considered an improvement, possibly making non-occupying tenant liable

Improvements

1.

Improvements all co-tenants liable

CASES

1.

Esteves v. Esteves (NJ Super Ct, App Div, 2001)

a.
b.

P and D owned house in TIC (each 50%). P lived in it alone for 18 yrs before selling and asks
D for reimbursement for his share of rent
Held: P is not entitled to reimbursement from D for all repairs/improvements made on the
property. Whatever D owes to P should subtract the reasonable amount that P would have
owed to D as rent, since D was not occupying the property

25

RECORDING
SYSTEM
I. INTRO TO RECORDING SYSTEMS
A. Common Law - anyone who received his interest first prevailed (bc grantor could only convey
title once)
B. Modern Recording allows anyone with an interest to record a deed to give notice of his rights to
the world
1. Purpose: to assert property rights and to avoid disputes
2. Bona fide purchaser diligent buyer who conducts a careful search of public records and finds
no title defects
II.

RECORDING INDICES

Grantor-grantee index

Organized by name of parties in transaction chain of title


First look at grantee index, and go backward
Then look at grantor index, and go forward check the date title was recd and date deed
conveyed to grantee

Tract index

Organized by parcel involved each given a parcel ID number

A. Issues
1. AP may not be in the public records
2. Recording system = complex and cumbersome
3. Even if document is recorded, it may not give constructive notice
B. Mother Hubbard Clauses- clause states the property to be conveyed generally (ex. all grantors
property)
1. Valid as long as subsequent purchaser had actual knowledge
C. CASES
1. Luthi v. Evans (KS Sup Ct, 1978)
a. Tours was conveyed all grantors property in a certain county (Mother Hubbard) which did
not specify the Kufahl lease. Kufahl lease, specifically, was conveyed to Burris few years
later. Dispute in who owns the Kufahl lease. Tours claims there was constructive notice,
Buriss says no constructive notice.
b. Held: Burriss wins, and gets title to Kufahl lease. Kansas statute requires conveyances to
be stated with specificity to avoid problems such as this, and Tours violated this. issue
was IMPROPER RECORDING

III.

RECORDING ACTS

First in Time
Purchaser whose interest was created first prevails
EXCEPTION: bona fide purchaser

Race
Purchaser who records first prevails
Even if she knows about previous unrecorded interest
North Carolina + Louisiana

Notice
26

Subsequent bona fide purchaser prevails


Purchaser takes without notice of prior interest
Does not have to record, but is recommended to prevent another bona fide purchaser from
getting interest
Took from grantor when the grantor no longer had anything to convey

Race-Notice
Subsequent bona fide purchaser who records first prevails
Purchaser takes without prior notice AND records first
A. Invalid Acknowledgements
1. If unacknowledged deed is not recorded not constructive notice
2. If valid on its face but has hidden flaw treated as validly recorded
B. Forgery and Fraud
1. Forged Deed void; no interest transferred to grantee
a. Subsequent grantees receive nothing bc those conveyances would also be void
2. Deed induced by fraud voidable by grantor
C. Shelter Rule
1. Allows a non-subsequent bona fide purchaser to prevail even though he knew that a prior
conveyance in the chain of title was not recorded
2. Bona fide purchaser is allowed to transfer his protection to a later grantee
D. Title Registration
1. An alternative to current methods of recording, where the govt to maintain registry of title
2. Issue is that its not mandatory and expensive to implement
E. CASES
1. Messersmith v. Smith (ND Sup Ct, 1953)
a. Dispute over ownership due to multiple conveyances and late recording
b. Held: all transfers are invalid because the original transferor didnt have the right to transfer
its interest in the property anyway bc it had quitclaimed its interest to another party before
all of these transfers
IV.

CHAIN OF TITLE PROBLEMS

A. If a recorded document cannot be found in a standard title search considered to be outside the
chain of title and provides no notice to subsequent buyers
B. OUTSIDE CHAIN OF TITLE
1. Wild Deed
a. B, does not record. B C. C records. S D. D records
b. BC conveyance = unable to be captured by a reasonable searcher
c. Previous deed is not properly recorded + does not provide notice D owns property
2. Deed recorded too late
a. S B, does not record. S C, who has actual knowledge of B. C records. B records. C
D, records.
b. D will not discover B's interest bc the S-B deed was recorded at a point when D is no longer
searching under S's name
c. S-B deed recorded too late + does not provide notice D owns property
3. Deed recorded too early
a. S owns Greenacre. BC, records. S B, records. BD, records
b. D would not find the B-C deed bc he would have stopped looking under B's name at that
point.
c. Deed recorded too early D owns property
4. Deed from a common grantor
a. S owns Greenacre and Forestacre. S conveys Greenacre to B, granting easement to cross
Forestacre for purpose of accessing Greenacre. B records. S conveys Forestacre to C, who
is not aware of easement. C records
b. C will only look at conveyances related to Forestacre only, so he will not know about the
easement since it is part of B's deed relating to Greenacre
C. Recording acts cannot give priority to deed recorded before if it shows no conveyance from a record
owner

27

D. CASES
1. Board of Education of Minneapolis v. Hughes (Minn. Sup Ct, 1912)
a. Sequence of Events
i. CH Hughes (no record) + grantee name left blank
ii. CH D&W (no record)
iii. D&W Board (deed recorded too early)
iv. Board records
v. Hughes inserts name as grantee + records
vi. D&W records
b. Held: Hughes prevails bc his deed became operative when his name was filled in, and he
was a subsequent purchaser in good faith for valuable consideration, whose conveyance was
first duly recorded

V. NOTICE
A. In notice and race-notice jurisdictions subsequent purchaser gains priority only if takes interest
B.

w/o notice
Types

1.
2.
3.

Actual notice knowledge of prior interest


Record notice notice obtained by standard search of public records (constructive notice)

Inquiry notice notice obtained by investigating suspicious circumstances (constructive


notice)
a. Based on Possession grantor was still living there is not notice, esp if still paying rent OK
to stay little bit after conveyance
b. Based on Record if doc within chain of title refers to another doc outside, required to
investigate
C. Possession of real property = constructive notice to entire world of whatever rights the possessor
has in the property
D. CASES
1. Raub v. General Income Sponsors of Iowa (Iowa Sup Ct, 1970)
a. Banks got title from GI, which got title by fraud by P. P continued to pay rent to GI. P asserts
claim to land.
b. Held: Banks win bc they are subsequent bona fide purchasers. Even though it was
obtained through fraud, GI had legal title from P, and through all types of notices, Banks
would not have been able to know of Ps title.

28

PRIVATE LAND USE


PLANNING
INTRO TO PRIVATE LAND USE PLANNING
A. Regulated by covenants, conditions, and restrictions (CC&Rs)
B. Burdens on land make them less marketable
C. Easements
1. Non-possessory right to cross anothers property in order to get to his own property
2. Servitude on land (burden on land)
D. Land Use Restrictions
1. Real covenant/equitable servitude created by owner to restrict use of his land
2. Servitude on land (burden on land)
E. Nuisance Law
1. Owners use of land seriously interferes with another owners use
2. Zoning laws + land use regulation

EASEMENTS
I. Important for encouraging productive use of land
II. License = informal permission that allows the holder to use land of another for a particular purpose
A. not an interest in land and can be revoked at any time
III. Profit = right to enter land to remove minerals, gravel, timber, game, or other natural resource

TERMINOLOGY:

Property
Dominant tenement/land: benefited from easement
Servient tenement/land: burdened by easement
Parties
Dominant owner: easement holder
Servient owner: owner of servient tenement [easement grantor]
Appurtenant or in gross
Appurtenant easement: benefits easement holder in her use of specific parcel of land
(dominant tenement)
Benefit is attached to the land when dominant land is conveyed, then the easement is
conveyed as well
Easement in gross: personal to the holder not connected to holder's use of any particular
land
Benefit is not tied to the land, but it is tied to the individual
Dominant owner benefits regardless of ownership of specific land
Personal easements in gross are OK, but are not transferrable
Commercial easements in gross are transferrable burden runs to successors even
though it's not tied to the land
Affirmative or negative
Affirmative easement: allows holder to perform an act on the servient land [most common]
Negative easement: allows holder to prevent servient owner from performing an act on the
servient land

IV. TYPES OF EASEMENTS


A. Express easement by agreement with owner
B. Implied easement by prior existing use
C. Easement by necessity
D. Prescriptive easement (acquired in same way as AP)

29

E. Easement by estoppel (or irrevocable license)


V. EXPRESS EASEMENT
A. By agreement with owner in writing
1. Types:
a. Express easement by grant servient owner grants easement to dominant owner
b. Express easement by reservation dominant owner grants servient land to the serivent
owner, but retains/reserves an easement over that property
2. GENERAL RULE: when servient land is conveyed, easement remains attached like any other
encumbrance
a. EXCEPTION: when the grantee is a bona fide purchaser
3. Millbrook Hunt v. Smith (NY Sup Ct., 1998) express easement in gross for P for fox-hunting
remains attached to the servient land even though it was sold to D. D was not a bona fide
purchaser bc the easement was recorded.
VI. IMPLIED EASEMENT BY PRIOR EXISTING USE
A. Elements
1. Severance of title to land held in common ownership
2. Existing, apparent, and continuous use of one parcel for benefit of another at time of severance
3. Reasonable necessity for that use
4. Reasonable expectation that use would continue
B. Restatement approach
1. Severance of title
2. Existing use of one parcel for benefit of another
3. Reasonable grounds to expect that conveyance would not terminate the right to continue the
prior use
C. Reasonable necessity = easement is beneficial/convenient for use of the dominant tenement,
but not essential
D. Van Sandt v. Royster (1938) easement of private pipe running under Ps land from prior use to get
to public sewage was necessary, so D does not need to stop running their sewage under Ps land
VII.
EASEMENT BY NECESSITY
A. Elements
1. Severance of title to land held in common ownership
2. Strict necessity for easement at time of severance (practical necessity if using Berge test)
B. Recognized bc:
1. Implied intent of parties
2. Public policy favoring productive use of land
C. Degree of necessity
1. Strict Necessity - owner has no legal right of access to land; EXCEPTION: if there is extreme
inconvenience
2. Reasonable Necessity - must be beneficial/convenient for use of dominant parcel but not
absolutely necessary
a. Restatement approach
3. Lack of reasonable practical access practical necessity (impractical alternatives)
a. If more practical, then can use that alternative practicality > inconvenient
D. Duration: lasts only so long as the necessity continues
E. CASES
1. Berge v. State of Vermont (VT Sup Ct, 2006) P got easement by necessity under the practical
necessity rule. Just bc he can access his house via boat doesnt mean its practical (esp during
winters when the river would be frozen)
VIII.

PRESCRIPTIVE EASEMENT
1. Elements
a. Open and notorious
b. Adverse and hostile
c. Continuous
d. For statutory period (usually the same as AP)

30

e. Tacking is allowed of privity btwn successive users


2. Presumed to be adverse use if little evidence of it being permissive
3. Promotes efficient use of land
4. Beach Access and Public Trust Doctrine the public retains rights to use navigable waters
and certain lands if the govt sells the land to private entitites
5. Adverse Possession vs. Prescriptive Easement
a. AP = occupation/possession of land
b. PE = limited use of land
6. CASES
a. ODell v. Stegall (WV Sup Ct of App, 2010) no prescriptive easement was found for P for
use of gravel road, which was maintained by D, to get to their driveway bc weak evidence
that use of it was adverse
IX. EASEMENT BY ESTOPPEL (IRREVOCABLE LICENSE)
A. Elements
1. Landowner allows another to use his land creates license
2. Licensee relies on good faith of the license + makes physical improvements or incurring
significant costs
3. Licensor knows or reasonably should expect such reliance
B. Granted when owner misleads or causes another in any way to change the others position to his
detriment
C. Easement by estoppel vs. irrevocable license:
1. Easement by estoppel = tied to the dominant property
2. Irrevocable license = irrevocable until benefit which is derived that made it irrevocable is
gone ended only by ending whatever made the land irrevocable
a. Lasts as long as the benefit that created it will last (50 yrs in Kienzle bc thats how long pipe
will last)
D. CASES
1. Kienzle v. Myers (Ohio Ct of App, 2006) easement of estoppel bc original parties changed
position by allowing one to build a pipe through the land,and the other relying on that grant to
actually build the pipe unreasonable for P to order D to stop usage of sewage pipe that connects
to theirs and to build brand new pipe to

X. SCOPE OF EASEMENT (how to acct for technological changes)


A. Traditional rule: location/scope of easement can only be changed if both servient and dominant
owners agree
B. Restatement: servient owner allowed to relocate easement as long as it does not significantly
lessen utility of it, increases burdens on easement holder, or frustrate the purpose of the easement
manner of the easement may change but the purpose must remain the same
C. Marcus Cable Associates v. Krohn (TX Sup Ct, 2002) current easement allowing cables providing
electricity cannot be extended to include cable TV wires bc original intent was for electricity, not for
telecommunications (Restatement)
XI. TERMINATION OF EASEMENT
A. Methods of Termination
1. Express easement by its own terms in the deed
2. Abandonment non-use + present intent to terminator OR purpose inconsistent w/ future
existence
3. Prescription
4. Condemnation easement holder entitled to just compensation
5. Estoppel serveint owner substantially changes position in reasonable reliance of holding
saying easement wont be used in the future
6. Merger obtains both easement and servient land
7. Misuse easement holder seriously misuses the easement
8. Release by executing and delivering writing that complies with Statute of Frauds
B. Presault v. United States (US Ct of App, 1996) easement conveyed to US for RR use, but after RR
shut down it was converted to a recreational trail for the public. Use as trail goes beyond the scope

31

of the easement and in fact the easement was abandoned + terminated when US stopped RR
service
XII.
A.
B.
C.

NEGATIVE EASEMENT
Dominant owner prevents servient owner from performing an act on sevient land
Private restrictions may encourage productive use of land real covenants/equitable servitude
Conservation Easement restricts development of land to preserve open space

LAND USE RESTRICTIONS


I.

CC&Rs must be recorded if want to subdivide land into lots with restrictions
A. Running with the land = restrictions that are attached to the land and are applied to successors,
regardless of who the owner is when analyzing this, look at whether the burden and benefit runs
individually

II. TRADITIONAL APPROACH


A. REAL COVENANTS
1. Definition: written promise that runs with the land + benefits/burdens original parties and
successors
a. Covenant running at law
2. Remedy; Money damages
3. Elements:
a. Statute of frauds specific terms must be in writing
b. Intent to bind successors can be inferred from T+C or I, part A, bind myself in the
following way.
c. Touch and concern must relate to enjoyment, occupation, or use of property (NOT
monetary obligation)
i. Ex. promise to use property only for commercial purposes
d. Notice actual, record, inquiry
e. Horizontal privity relationship btwn original parties
i. Requires the transfer of some land, other than the covenant
ii. Mutual interests both parties burden + benefit each other
iii. Successive interests - grantor-grantee relationship
f. Vertical privity relationship btwn original party and its successor
i. Only exists if entire estate was conveyed like a bird traveling on a wagon

Elements
Statute of Frauds
Intent to bind successors
Touch and concern
Notice
Horizontal Privity
Vertical Privity

For Burden to Run


Yes
Yes
Yes
Yes
Yes
Yes

For Benefit to Run


Yes
Yes
Yes
No
No
Yes

4. Deep Water Brewing v. Fairway Resources (WA Ct of App, 2009) benefit ran to the easement
holders successors bc all of the elements were met, so P could enforce the burden on D
B. EQUITABLE SERVITUDES
1. Definition: written promise concerning use of land that benefits + burdens both original parties
and successors
2. Remedy: injunction
3. Common Plan Exception: all lots are burdened and benefited by uniformed restrictions even if
the restrictions do not appear in the chain of title of every lot

Elements
Statute of Frauds

For Burden to Run


Yes, or common plan

For Benefit to Run


Yes, or common plan
32

Intent to bind successors


Touch and concern
Notice
Horizontal Privity
Vertical Privity

Yes
Yes
Yes
No
No

Yes
Yes
No
No
No

4. Tulk v. Moxhay (Ct of Chancery, 1848) P can get injunction against D for failing to keep up the
garden, bc the burden ran to D (all elements met)
III. RESTATEMENT APPROACH
A. Combines real convenat with equitable servitude
B. Elements:
1. Owner of property to be burdened intends to create servitude
2. Owner enters into K or conveyance that satisfies Statute of Frauds
3. Servitude not arbitrary, unconstitutional, unconscionable, or violative of public policies
a. Ex. cannot unreasonably restrain alienation
4. [VP only required for positive covenant in certain situations, but never for negative covenant]
C. Do not need touch and concern and HP
IV. COMMON INTEREST COMMUNITIES
A. All properties are subject to comprehensive private land use restrictions regulated by HOA
B. Created by declaration
1. HOA
2. CC&Rs
3. Assessments (HOA fees)
4. Ownership rights to each unit owner (FSA for each unit)
C. Benefit to living in CIC with CC&Rs = can enforce restrictions on your neighbor
D. Defenses to enforcement of CC&Rs
1. Unreasonableness
a. Nahrstedt v. Lakeside Village Condo Association CC&R prohibiting cats is upheld because it
is not unreasonable. It was also recorded in the declaration of the master deed, so its more
likely to be enforced
2. Abandonment
a. Burden is on violator to prove that a reasonable person would believe that CC&R was
abandoned
i. Number, nature, and severity of violation
ii. Prior enforcement eforts and possible realization of benefits (inconsistencies, purpose)
iii. Non-compliance defeats the purpose of uniformity
b. Benefit high + enforcement low + scattered # of violations could go either way
c. Benefit low + enforcement high + scattered # of violations likely that CC&R abandoned
d. Fink v, Miller (Ct of App, Utah, 1995) CC&R deemed abandoned bc significant number have
already violated it and enforcement is inconsistent
3. Changed conditions
a. TEST:
i. How much change has occurred in the community?
ii. How much of a drop of benefit has occurred?
b. Original purpose of the restriction has not been altered or benefit still exists for D no
changed conditions
c. Changed conditions must take into account both adjoining and restricted tracts of property
d. Vernon Township Volunteer Fire Dept v. Connor (Penn Sup Ct, 2004) firehouse cannot build
a social house that sells alcohol bc of a Restrictions Agreement on land, and conditions have
not changed substantially enough to allow alcohol to be sold
E. CC&Rs can be terminated by:
1. Condemnation
2. Estoppel

33

3.
4.
5.
6.

Merger
Prescription
Merger
Laches + unclean hands (but not available when equitable relief is sought)

F. Scope of HOAs authority


1. HOA allowed to:
a. Maintain common area of CIC
b. Enforce CC&Rs and add + enforce rules to supplement this
c. Collect fees from owners
d. Take other actions as necessary to administer CIC
2. Business judgment rule HOA like a corporation not liable if board makes decision in good
faith and rationally believed it was appropriate
3. Reasonableness standard Restatement HOA to act reasonable to exercise discretionary
powers
4. Interpretation of CC&Rs
a. CL = restrictive covenants narrowly construed bc interfered with free use of land
b. Restatement = CC&R interpreted to give full efect to intent of parties and to carry out those
purposes
5. CASES
a. Schaefer v. Eastman Community Assoc. (NH Sup Ct, 2003) D did not go beyond the scope
of its powers to close down the ski area bc no express provision restricting them from
making decisions that are for the best of the community reasonableness standard
b. Fountain Valley Chateau Blanc HOA v. Dept of Veterans Afairs (CA Ct of App, 1998) P
cannot order D to clean up the interior of his home bc cannot reasonably read the CC&Rs as
allowing HOA to dictate how much clutter one can have in their own home avoid
restriction through interpretation

NUISANCE
I. PRIVATE NUISANCE
A. Definition: non-trespassory invasion of anothers interst in the use and enjoyment of land
B.

(Restatement Second)
Requirements

1.
2.
3.

Intentional purposely causing harm or knows that harm is resulting

4.
5.

Substantial interference real and appreciable invasion of Ps interests

Non-trespassory no physical entry of land


Unreasonable

a. Gravity of harm test: causes substantial harm regardless of social utility of the conduct
b. Restatement test: gravity of harm outweighs utility of conduct
Use and enjoyment of land

C. Remedy
1. Injunction (usually) but result would be that action could keep being brought against the
2.
3.

nuisance maker
Money damages

a.

Determined by social utility, hardships (damages, injunctive relief, or both)

Allow D to develop way to eliminate nuisance (but this may take too long or may never even
happen)

34

D. Gravity of Harm Approach


1. Social utility offending use > social utility of complainants use nuisance (not legally
cognizable harm) no remedy use will continue
2. Social utility offending use < social utility of complainants use nuisance remedy
injunction/money
3. Boomer v. Atlantic (NY Ct of App, 1970) no injunction against D for causing cement dust to
cover Ps personal property since it would be unreasonable money damages to compensate
for total economic loss of property [traditional approach]
E. Restatement Approach

1.
2.

3.

Two Questions:
a. Could Ds conduct create nuisance?
b. Did Ds conduct create nuisance?
Gravity of harm > utility of actors conduct unreasonable
a. Gravity of harm
i. Extent of harm involved
ii. Character of harm involved
iii. Social value that law attaches to type of use or enjoyment invaded
iv. Suitability of the particular use or enjoyment invaded to the character of the locality
v. Burden on the person harmed of avoiding the harm
b. Utility of actor's conduct
i. Social value that law attaches to the primary purpose of the conduct
ii. Suitability of the conduct to the character of the locality
iii. Impracticality of preventing or avoiding the invasion [here, D could use other forms of
heating]
Thomsen v. Greve (Neb Ct of App, 1996) P wins injunction against D who was using their woodburning stove that caused an odor to seep into Ps house and stay. Nuisance was enough to
keep P away from their house. gravity of harm > utility of conduct (esp since D has other
alternatives for heat)

TRANSFERRING TENANTS
INTEREST
I. TENANT TRANSFERS

A. Tenant and landlord are allowed to transfer their interests to third parties
B. Transfer by:
1. Assignment
2. Sublease
C. Privity of contract: lease = contract so tenant and landlord have rights and duties under contract
law
D. Privity of estate: lease = conveyance of an estate in land; related to the land itself regardless of
contract law
1. Can only exist once btwn 2 parties

35

II. ASSIGNMENT VS. SUBLEASE


A. Assignment
1. Tenant conveys the whole term, leaving no interest or reversion
2. No privity of estate btwn lessor and lessee, but privity of contract remains btwn them
3. Sub-lessee is liable to landlord
B. Sublease
1. Tenant grants an interest less than his own and retains reversion
2. Privity of estate and privity of contract remain btwn lessor + lessee
3. Sub-lessee is liable not liable to landlord only the lessee is liable to landlord
C. Majority Test
1. Assignment = tenant transfers his right of possession for all the remaining lease term
2. Sublease = tenant transfers only a lesser right of possession than he has from landlord
D. Minority Test
1. Look at intent of the parties
2. Sublease would be possible for entire remaining term of the original lease
E. CASES
1. Ernst v. Conditt (Tenn Ct of App, 1964) D as sub-lessee is liable to P for unpaid rent and
removal of improvements made to property bc lessee only said he would remain responsible for
performance of the lease when D defaults, not ALWAYS

III.

RESTRICTIONS ON TENANT TRANSFERS


A. Four Types of Restrictions on Alienation

LANDLORD
TENANT

Duty to
Substitute

No Duty to
Substitute

Duty to Mitigate
Most tenant-friendly
Both parties need to minimize
costs/damages so tenant can
more likely to get out of lease
(Minority Rule) modern trend
Who would do a better job of
substitution?
Tenants to pay for mitigation
Fewer administrate costs
(Majority rule)

No Duty to Mitigate
Who would do a better job of substitution?
Not against public policy
Landlord must be reasonable in
discretion
Must be in clear lang so tenant knows
what he is getting into
Most landlord-friendly
No replacement needs to be found, but
landlord is still able to collect rent

B. Kendall v. Ernst Pestana Inc. (CA Sup Ct, 1985) clause in lease contract was an unreasonable
restraint on alienation bc it prohibited lessee from subleasing without lessors prior written consent
1. Greater the restraint, the greater the justification must be for it to be reasonable
2. Good faith and fair dealing inherent in any contract

36

IV. FEDERAL FAIR HOUSING ACT OF 1968 3604


A. Cannot refuse to sell/rent to someone based on race, color, religion, sex, familial status, or national
B.

origin
Cannot discriminate against anyone in the terms + conditions based on the characteristics listed
above
Cannot make, print, or publish notice of any preference/limitation based on above characteristics

C.
D. Cannot discriminate based on handicap of the buyer/renter
E. Discrimination includes: refusing to allow reasonable modifications to premises and

accommodations in policies when necessary for equal opportunity and full enjoyment of the
dwelling for handicapped and everyone else

37

LAND USE
REGULATION
I. BASICS OF ZONING

A. Ordinances and statutes nowadays regulate ones use of land


1. Traditionally owner had complete discretion on how to use the land, subject to only private
restrictions and nuisance laws
2. Modern industrial development and increased urbanization called for use of land use
regulations
B. ZONING LAWS allowed bc govt has inherent police powers

Public welfare = nuisance prevention = police power govt doesnt need to pay
Govt will always claim that their actions are for nuisance prevention
Public welfare = public good just compensation

1. Zones = where diferent uses were permitted, with limits on size and location of bldgs.
2. Standard State Zoning Enabling Act allows govt to adopt zoning ordinances
3. Test for Constitutionality = rational basis
a. Strict scrutiny used when there is a suspect class or a fundamental right infringement
C. CASES
1. Village of Euclid v. Ambler Realty Co. (US Sup Ct, 1926) zoning laws that restrict the way that P
wants to use his land and therefore preventing him from using his land in the most valuable way
possible are constitutional bc govt is acting in within its police powers THIS IS ABOUT
CONTROLLING USE (NO LONGER FAVORED)

II. FAMILY ZONING


A. Zoning laws where govt regulates who constitutes as family in a zone dedicated to family homes
B. If ordinances cut too far into family life, they will usually fail RB and will be deemed unconstitutional
1. If using ordinance as proxy for an ulterior motive targeting a specific class of ppl
unconstitutional
C. CASES
1. Village of Belle Terre v. Boraas (1974) RB used to justify ordinance that prohibited non-families
from living together in a particular zone ends are legit (to reduce noise, traffic) + means are
rationally related (prevents density-related problems)
2. Moore v. City of East Cleveland (US Sup Ct, 1977) RB used to show that ordinance dictating
that grandmother living with her grandson is not a family is unconstitutional ends = proxy
for preventing poor from living in that neighborhood + means are over/under-inclusive
3. Ames Rental Property Assoc v. City of Ames (Iowa Sup Ct, 2008) RB used to justify ordinance
that prohibited unrelated ppl (students) from living in a particular community ends: to build a
sense of familial community + means: over/under-inclusive but not extreme enough to
invalidate it (students is temporary and no involvement in community)

38

EMINENT
DOMAIN
I. EMINENT DOMAIN

A. Definition: allows govt to take property from private owner who refuses to sell voluntarily
1. Limitations: ONLY for public use + just compensation given
B. Condemnation = process of ED
C. Public Use satisfied when
1. Land is physically used by public or govt employees + serves a public purpose
2. Economic development
D. Compensation = fair market value, or amt a willing buyer would pay a willing seller on the open
market
E. CASES

II. PUBLIC USE

A. When govt takes property and it will be used physically by public (hwys) or govt employees
(military installation)

What qualifies as public use


Instrumentalities of commerce (RR, hwys, canals, etc)
Private entity remains accountable to public in the use of that property public maintains control of
the property (ex. pipeline)
Property is chosen for ED for reasons independent of private benefit private benefit is only
incidental
INCIDENTAL BENEFITS TO PUBLIC DOES NOT JUSTIFY "PUBLIC USE
Address economic blight
Economic development

B. Narrow Definition of Public Use physical use by members of the public (P argues)
C. Broad Definition of Public Use provides some public benefit regardless of who physically
uses it (govt argues)
D. CASES
1. Poletown v. Detroit (Mich. 1981)
a. ED constitutional bc public use = stimulating economy and revitalizing area when giving
taken land to GM for new factory LATER OVERTURNED, but after Poletown already
destroyed
2. County of Wayne v. Hathcock (Mich Sup Ct, 2003)
a. ED not constitutional bc taking land to give to private entitles to build a technology business
park is NOT public use none of the allowed public uses satisfied
3. Hawaii Housing Authority v. Midkif (US Sup Ct, 1984)
a. Condemnation is constitutional to address economic blight bc passes RB end: regulate
oligopoly + means: redistribution of fee simple to correct deficiency in real estate market;
broad definition used here
4. Kelo v. City of New London (US Sup Ct, 2005)
a. ED justified even though taking is to give to private company for building of a new facility bc
taking to improve economically blighted area = OK

39

REGULATORY
TAKINGS
I.

Eminent Domain vs. Regulatory Taking


Definition

Eminent
Domain
Regulato
ry Taking

Physical taking by govt for public use


Limitation on owners rights so as to almost be
a taking
[Regulations that go too far]

Just
Compensation?
Yes

Act

No

Inverse
Condemnation

Condemnation

A. Three Taking Situations:


1. Govt can take + doesnt have to pay Nuisance Control (govt exercising police power)
2. Govt can take and has to pay Eminent Domain
3. Govt cant take at all Unconstitutional
a. Private party private party preferential treatment = unconstitutional
TEST
Whether a regulatory act constitutes a taking depends on extent of diminution in value of the
property
Extent of diminution: look at value of the whole property rather than in divided parcels

B. Factor Balancing Test To Determine Whether RT Has Occurred (Penn Central):


1. Govt action
a. Cant be arbitrary
2. Character of govt action
a. Is govt actually physically intruding on your property?
b. Does govt authorize a 3rd party to come onto your property?
3. Economic impact of the regulation on claimant
a. Extent of economic loss sufered by owner
4. Extent of Interference w/ Distinct investment-backed Expectations
a. Does the regulation interfere with the expected use of the property?
5. Reciprocity of advantage
a. Is govts purpose to confer benefit upon the property?
C. Transferable Development Rights relevant to whether taking has occurred and whether govt
has provided a fair compensation for the taking
1. Marketable TDR: enables 3rd party not to get cash from govt but to use land in what govt
would otherwise not allow + relates to compensation
D. CASES
1. Pennsylvania Coal Co v. Mahon (US Sup Ct, 1922) US statute prohibiting mining under Ps land
acted as a takings via ED, so just compensation needs to be paid extent of diminution
determines whether it is a taking
a. Defines the Regulatory Takings Doctrine
2. Penn Central Transportation Co v. City of New York (US Sup Ct, 1978) landmark regulations do
not violate 5th Amendment and do not constitute a taking that requires govt to pay just
compensation bc restrictions are necessary to achieve public purpose of protecting landmarks
KEY ISSUE: IDing what exactly is the property interest at stake

II. CATEGORICAL TESTS

A. Formula-like rule for deciding if taking exists under certain conditions


B. More predictable than ad-hoc rules
C. Takings will be found under these tests if govt:

40

1
2

Allows permanent physical occupation of land


Adopts regulation that causes "loss of all economically beneficial or productive use of land"
unless justified by "background principles of property or nuisance law"
3 Demands an exaction that has no essential nexus to a legitimate state interest or lacks rough
proportionality to the impact of the particular project
D. PERMANENT PHYSICAL OCCUPATION

1.
2.

Will be deemed a taking if this exists just compensation would be required


Destroys the right to possess, use, and dispose of property

Elements of Permanent Physical Occupation

Physical use
Occupation of property
Permanent

TEST: Taking regardless of reason for govt


action
3. Physicality: you can see it, it is physically blocking
4. Temporary physical occupation is NOT considered a taking
5. If do not clearly/cleanly have all 3 factors, then do a Penn Central factor balancing analysis
6. Loretto v. Teleprompter Manhattan CATV Corp. (US Sup Ct, 1982)

a.

E.

Taking here bc elements of PPO have been met under the statute that prohibited P from
interfering with installation of cable TV lines on his property

LOSS OF ECONOMICALLY BENEFICIAL OR PRODUCTIVE USE

1.

Loss of property value due to govt regulation may constitute a taking

a.
b.

Loretto says that it MUST be 100% loss otherwise, do Penn Central factor balancing
analysis
Determined by looking at fair market value v. value in eyes of the owner

TEST: regulation that deprives land of all economically beneficial use


is a per se taking no matter how weighty the public interests involved
Unless justified by background principles of state property or
nuisance law

2.

Lucas v. South Carolina Coastal Council (US Sup Ct, 1992)

a.

Loss of property value reducing it to 0% = taking so just compensation should be paid,


where the govt prohibited P from developing land, which was the reason why he bought it in
the first place

Lucas Analysis
1 100% loss?
2 IF yes, was the statute controlling a nuisance (background common law)?
a If no (Lucas) taking, compensation required
i
Penn Central analysis
1 Character of gov't action should be analyzed under this prong [not discussed in Lucas
bc P already conceded to this]
a Illegitimate gov't action
2 Reciprocity of advantage
b If yes no taking, compensation not required
i
Gov't action is legit
2 IF no Penn Central analysis

41

F.

EXACTIONS: ESSENTIAL NEXUS AND ROUGH PROPORTIONALITY

1.

Exactions requires developer to provide land or fees to ofset the impacts of the project as a
condition of discretionary land use approvals
a. Shifts costs for new residential development to developers in hopes they will pass it on to
homebuyers

TEST: Takings if
There is no essential nexus btwn exaction and legit
state interest
Exaction is not roughly proportional to projects impact
2. Nollan v. CA Coastal Commission (1987) - approval on condition that owners grant easement
allowing public to cross lot to get to the beach bc of concern that house was going to block view
of beach from the front
a. No essential nexus btwn view problem and easement allowing public to walk along beach
behind the house taking
3. Dolan v. City of Tigard (1994)- what degree of connection is req'd btwn impact and exaction?
a. Approved expansion of P's store on condition of conveyance of 2 portions of land:
i. Land in floodplain of adjacent creek
ii. Land used as link in pedestrian/bike path
b. Essential nexus met but no evidence that req'd conveyance is related in nature and extent
to impact of development must be roughly proportional
c. Req'ment that owner provide land for path must be roughly proportional to amt of increased
customer traffic that store expansion would produce

42