PROPERTY

2016
I.

INFRANCA

The acquiring of property other than by voluntary transfer

a. Rule of Capture Exercising dominion and control. One acquires a property
interest in a wild animal or a fugitive resource by ensnaring it to make its escape a
virtual impossibility.
i. Wild Animals
1. 19th Century Articulation of basic rule
a. Pierson v. Post - The mere pursuit of an animal on public
land doesnt give the hunter title to the animal;
pursuing and mortally wounding the animal sufficiently
establishes a vested property right. (19th century
What is property?
articulation). The law rewards person who delivers fatal
A set of legal rights and obligations
blow.
among people with regards to
b. Dissent: argued against such a rule, fearing that it would
things.
discourage hunters from exterminating foxes, which were
Other things to keep in mind:
viewed as nuisances. Instead, he favored a rule that aligned
with the customs of the sport of hunting: pursuer who is
Title is relative, context matters.
within reach and has reasonable prospect of capture, such
that a pursuer who is in reach and has a reasonable prospect
of capture has possession
2. Role of Custom
a. Ghen v. Rich - If an animal is marked, such as the bomb
lance marked the whale in Ghen v. Rich, and the owner
exercises all possible effort to recapture the animal, then
the owner retains title through constructive possession,
especially when it would be consistent with custom.
i. Marking represents constructive possession
3. Private land - Landowners are the presumptive constructive
possessors of all that is on their land.
a. In Keeble v. Hickeringill A property owner has a right
to make lawful use of his property for profit without
malicious interference of others.
i. Keebles duck decoy pond was on his property and
was his livelihood, so by firing guns, Hickeringill
committed a sort of trespass. The courts prohibited
malicious interference with someones livelihood
and trade.
ii. W]here a violent or malicious act is done to a
man's occupation profession or way of getting a
livelihood, there an action lies in all cases. But if a
man doth him damage by using the same
employment; as if Mr. Hickeringill had set up
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another decoy near the plaintiff's, and that had

spoiled the custom of the plaintiff, no action would
lie, because he had as much liberty to make and use
a decoy as the plaintiff.
b. Ratione Soli - The doctrine known as ratione soli provides
that wild animals and other natural resources captured on
the private land of another belong to the landowner, and not
to the captor. That rule protects landowners reasonable
expectations that trespassers will not be rewarded.
4. Equitable Division
a. Popov v Hayashi - Where people have demonstrated
equitable possession over an item, such as the baseball in
Hayeshi, courts can resolve the problem by equitable
division namely, forcing the sale of the item and requiring
the profits to be split.
b. Scholars have advocated equitable division resolutions
to different categories of cases, such as so-called
windfalls, where neither party could predict the wins or
losses.
i. This is fair because: A normally risk adverse
person ex ante would choose equitable division
over total loss; it doesnt place the unforeseen loss
entirely on one party; furthers judicial integrity by
allowing discretion instead of justificatory
gymnastics for one party.
5. Capture of Natural Resources
a. General Rule
i. The owner of a tract of land acquires title to the
oil and gas produced from wells drilled on the
land even though it may be shown that part of
the oil and gas harvested came from adjoining
lands. Under rule of capture, there is no liability for
capturing the oil and gas that drains from another
persons land
b. Exception
i. Correlative rights
1. Elliff v. Texon Drilling Co. parties shared
oil supple, under half of which Texon had
rights and was drilling when blow out
occurred and lots of resources were wasted.
The court found Texon liable because its
negligence caused Elliff to suffer a loss.
2. The case established correlative rights, or
that landowners have a right to produce
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oil and gas from their own property so

long as they are not negligent during the
production. (restricting the rule of capture)
3. Also, no vested rights exist until drilled;
rights are constructive while in ground.
6. Tragedy of the commons
a. The rule of capture gives ownership to previously unowned
resource to the first person to gain possession of that
resource. A drawback is the overconsumption of a resource.
E.g. Fisheries, where an incentive exists to capture all the
fish because if you dont someone else will. Perhaps this
problem could be solved by creating property rights where
those rights hadnt previously existed. If there are property
rights, then people have an incentive to see their property
increase in value; its not zero-sum, because theres the
right to exclude and the right to improve.
b. The law of finders
i. While the rule of capture works to create title to the property, finders law
works to create the presumption of title that will continue unless rebutted.
Wilcox v. Stroup.
1. The law of finders rewards possessors of found items, subject
to two rules that illustrate the principle of first in time, first in
right:
a. Prior possessors defeat subsequent possessors
i. (Honors finders reasonable expectations that they
will not be divested of their possession by anyone at
anyone other than rightful owner.)
b. The rightful owner of the item defeats the possessor.
i. (Facilitates return of found item to rightful owner,
except in the case of abandoned property.)
2. Basic Guidelines the following classifications turn on how the
object turn on how the object left the true owners possession
rather than how the object came into the true owners possession:
a. Abandoned owner discards or voluntarily deserts with
the intention of terminating ownership.
i. Finder has right to possess against all others,
including prior owners. (?)
b. Lost owner unintentionally and involuntarily parts with
property and does not know it is.
i. Finder has right to possess against all except true
owner and previous possessors.
c. Mislaid owner voluntarily puts property in certain place
and forgets where it is.

i. Property belongs to the owner of the locus, against

all others except previous possessors and true
owner.
d. Treasure Trove (1) concealed coins or currency, where
there is (2) evidence of antiquity, suggesting that they have
been hidden for such a length of time that the (3) true
owner is probably dead. [not really used anymore]
i. Finder has right to possess against world but true
owner and previous possessors.
e. Embedded property that has become a part of the natural
earth, or concealed for such length that has essentially
become part of it.
i. Goes to owner of the land.*What about true owner?
3. Courts will consider
a. Legal positions of finder
b. Honest of finder
c. Public/private space
i. Might inform about whether lost or mislaid.
ii. Basic tenets of finders in action
1. Armory v. Delamarie - Plaintiff, chimney sweep, found jewelry,
brought it to the defendants shop. Shop owner screwed him over.
Chimney sweep awarded damages.
a. Rule: a finder has the right to found property that is good
against the entire world except the true owner and any
previous possessor.

iii. Disputes between a finder and the owner of premises

1. Benjamin v. Linder Aviation, Inc. - Ben found $18,000 in the wing
of a plane, which was owned by the bank, which in turn was being
serviced by Lindner Aviation. All three claimed $ against true
owner. It was wrapped and packaged carefully and neatly. The
screws were very rust and the bills were older, in good shape,
and a musty smell. (consistent w/ continued claim & not
treasure trove b/c fairly new & not lost b/c no evidence that
owner didnt know where it was or that it was unintentionally
placed).
a. Court determined recipient of property based on
classification of the property and where it was found and
how it was found and what it looked like when found, etc.
Here, evidence suggested money was placed intentionally
with the intention of reclaiming it. Therefore, it went to the
owner of the premises (because it is assumed that the true
owner may eventually recall where he has placed his
property and return there to reclaim it).

b. Rule: When an item is found in a movable object that is

*finders doesnt
parked, it is mislaid and some courts will say that it
apply to
goes to the owner of the vehicle, as the vehicle is the
contraband,
locus, not where it is parked.
obviously.
c. Here, the court ruled that it was found in the airplane, not
the hangar, which means it went to the owner of the plane
i.e., the bank.
d. Reasoning: because if the true owner attempted to look for
the plane he would most likely follow the paper trail of
ownership, not look to businesses where it might have been
inspected.
e. Dissent, however, determined it was abandoned because
while the first element seemed satisfied, he was skeptical
that someone would stash that much money somewhere and
forget where it was.
2. Corliss v. Wenner - Corliss and Anderson found gold coins while
digging on Wenners property.
a. Court said it was embedded property, reasoning that the
owner has constructive possession of all personal property
on her land, and so therefore is entitled to possession to the
exclusion of all but the true owner, absent a contract.
b. However, if you find something in course of employment it
will generally go to employer.
c. Court, in this case, weighed legal relationship between
parties. The agent of landowner thus had weaker claim, as
would a trespasser.
3. Argument for a better result
a. As in Lindner, it might be better if in disputes between loci
owners and finders that the court give the finder a 10
percent reward. Among other things, this would encourage
finders to be honest.
c. Gifts of Personal Property
i. What is a valid intervivos gift?
1. A normal gift from one living person to another that is irrevocable
once the three elements are met.
2. What are the elements of a valid intervivos gift?
a. Donative intent
i. Must transfer immediately
b. Delivery
i. Actual Physically handing recipient object
ii. Constructive transferring a mean of access to
item; allowed when actual transfer is impossible or
difficult.

iii. Symbolic e.g. the keys to a car. Traditionally

allowed only when actual transfer is not possible or
is too difficult; modern view is that writing usually
constitutes symbolic delivery.
c. Acceptance
i. Low threshold; can be presumed if in writing
ii. Gift Causa Mortis
1. What is it?
a. A gift from one living person to another living person made
in anticipation of the imminent death of the owner
2. When is it revocable?
a. A gift causa mortis is revocable at any time before death.
3. What are the elements?
a. Gift causa mortis has the same elements as inter vivos gifts
must transfer immediately with delivery accompanied by
acceptance but there is an additional element: the
expectation of immediate death by donor.
iii. Examples
1. Engagement rings
a. What happens to an engagement ring if the engagement is
subsequently broken?
i. Traditionally, rings are viewed as a conditional gift,
i.e., a gift intended to be permanent upon the
happening of a condition, marriage. Some states say
the ring must be returned no matter what; others
adopt the policy that a ring only has to be returned
when the recipient was responsible for breaking off
the engagement.
2. Gruen v. Gruen (future interests exist @ conveyance time)
a. Plaintiff alleges father made valid gift in 1963, reserving
life estate for him, but stepma says gift is a testamentary
gift & that retaining life estate when making inter vivos gift
is not allowed.
b. Language of grant was: to myself for life, then to son.
c. There were two letters. One said that he wanted to use for
as long as he lived. The next negated previous and gave
immediate.
d. Court had to decide whether clear and convincing evidence
established each element. Father mustve intended
irrevocable present transfer and deliver gift and must
deliver gift.
i. Donative intent
1. Evidence shows that victor intended to
transfer ownership in 1963 and retain life
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estate and that he effectively transferred

remainder interest.
2. Valid inter vivos gift can be made of real
property and intangibles like stocks or in
this case a painting, defeating defendants
proposal.
3. The test: Did donor intend to transfer at least
partial interest?
a. Yes, valid.
b. If the donor intended gift to have
no effect until after death, then
invalid.
ii. Delivery
1. Physical, constructive, or symbolic delivery
must accompany delivery.
2. Because son only received a future interest,
actual delivery was impossible.
3. Because actual delivery was impossible,
constructive or symbolic delivery sufficed
and was established by the letters.
iii. Acceptance
1. Evidence that he told friends about painting,
showed them painting and kept letter for 17
years.
d. Bailments deliverance without transfer of ownership.
i. Voluntary bailment owner of goods gives possession to bailee, e.g., coat
check, baggage claim.
ii. Involuntary bailment -- arises when a person accidentally, but without any
negligence, leaves personal property in another's possession. It happens
when a person comes into possession of property accidentally or
mistakenly.
1. There is assumption that bailor should exercise reasonable care
under the circumstance over the goods.
e. Competing justifications for property rights
i. Property and Sovereignty, social welfare maximization; distributive
justice; settled expectations; labor and investment.
1. Sovereignty creates property; without a sovereign enforcing
property rights to things many argue that there is no property.
2. Discovery Doctrine & conflicts between past injustice and present
land possession
a. Johnson v. Mintosh
i. Plaintiff claimed to have obtained title directly from
Indians; defendant awarded land after gov refused
to recognize Indian title.
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ii. [D]iscovery gave an exclusive right to extinguish

the Indian title of occupancy, either by purchase or
by conquest . . .
iii. In a sense, the court recognized that claim was
extravagant, but concluded that things are too
settled to start recognizing Indian claims to land
and thus Indians can use land and they can possess
it, but they cannot transfer it.
iv. To reach conclusion, said that Indians never
acquired property rights because they were hunters
and gatherers rather than farmers the lands occupied
by each tribe were not used by them in such a
manner as to prevent it being appropriates by a
people of cultivators.
1. This is argument of maximizing social
welfare; a distributive justice argument, too,
because excluding person from thing we do
not want and they have reason for.
v. Uncorrected injustices often lead to justifiable
expectations by later owners.
f. Adverse Possession
i. Adverse possession provides that possession, for a statutorily prescribed
period, can ripen into title if certain elements are met. The elements of the
doctrine endeavor to balance the interests of the rightful owner, who is
afforded time to assert his rights in the face of anothers visible occupation
of his land, against those of the possessor, whose protracted use yields
expectation and reliance interests.
1. Elements:
a. Actual
i. An adverse possessor satisfies this element when he
makes actual entry onto the land, which would give
rise to a claim of trespass, and actual use of the land
in a way the true owner would. Entry starts the SOL
clock.
1. Symbolic, fictitious, or hypothetical entry
wont do.
b. Open and Notorious
i. An adverse possessors use of land is open and
notorious when he uses the property in the way a
typical owner of that type of property would, such
that it puts the owner on notice of possession
(which Marengo failed to do). In instances of minor
encroachment, as in Manillo, the court might say
that the possession wasnt open and notorious.
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c. Continuous
i. An adverse possessors use is continuous if it is
uninterrupted for the appropriate statutory period,
ten to 30 years usually, in a way that a true owners
use would be. If adverse possessor is in privity with
a prior adverse possessor, both possessors periods
of possession can bad added--or tacked--together
to satisfy the SOL.
d. Hostile
i. To satisfy the hostile element the adverse possessor
must lack the true owners permission to be there.
1. Permission always wins; owner can give
permission and ensure no SOL issue.
a. Some jurisdictions require bad faith
b. Some require good faith
c. Some take objective approach
i. When applying the elements
of adverse possession, the
possessors subjective state
of mind what he or she
thinks she was possessing
doesnt matter.
2. A mistaken adverse possessor wins under
either the objective or good faith, but
loses under the bad faith.
e. Exclusive
i. Possession not shared with owner; acts as ouster to
true owner. But can share w/ another AP.
ii. Cases
1. Manilo v. Gorski
a. 1946- Defendant, Gorski, makes additions to the house,
including two rooms on the rear side and an enclosed front
porch, with a concrete platform, stairs and a sidewalk on
the side of the house.
b. 1953 Plaintiff, Manillo, acquires the adjacent property.
Defendant raises her house and extends the steps toward
the front and back of her house, but did not change width of
steps.
c. Gorskis stairs extended 15 inches into Mannillos property.
When Manillo sued, Gorski argued that the 15 inches was
now hers through adverse possession.
i. Manillo responds that bad faith is necessary, under
the adverse element; court discards requirement.
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d. Next, they had to decide whether the open and notorious

element was satisfied.
i. Arg that it was: concrete steps were visible!
ii. Arg that it wasnt: It was small area and minor
border encroachment, so the encroachment wasnt
visible to the naked eye.
e. Court decided that minor encroachments those resulting
from improvements that are clearly visible but where the
underlying encroachment is not (maybe lacks visible
dividing line, row of trees, etc.) are not open and
notorious unless the owner had knowledge that the
improvements were encroaching onto her property.
i. Most courts would go the other way and say that it
is open and notorious if the existence of the
improvement is open and notorious.
f. Manillo hints at an alternative to the all-or-nothing
approach of adverse possession:
i. In cases of minor encroachment, the court can
require the true owner to sell the small portion of
land that was adversely possessed to the adverse
possessor if failing to do so would cause undue
hardship to the possessor because he or she
mistakenly engaged in improving the property that
at least partially extends into the disputed land.
2. Marengo Cave Co. v. Ross
a. Plaintiff had a piece of land on which there was a cave that
the defendant claimed he acquired possession through
adverse possession. But neither party knew that cave was
part of Ps land.
b. The court says that its not open or notorious and that its
not exclusive.
i. Why?
1. Not O&N because O&N requires land to be
used in such a way to put owner on notice
that his ownership rights are being invaded.
a. Visibility such to convey visible
notice to community or
neighborhood in which it is his
exclusive use and enjoyment, must
unfurl flag on the land and keep it
flying.
b. Clear and satisfactory possession
such that notice can be inferred i.e.,
that the owner must or should have
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known of possession. (high bar to

ensure title isnt extinguished by
flimsy evidence.).
i. Not visible or O&N because
cant see below the earth;
ownership was secretive;
nature gives trespasser
opportunity to take land and
cause owner ignorance.
ii. Owner did not know of the
trespass and had no
reasonable way of
discovering it.
2. Not exclusive because it was a possession
that did not amount to an ouster.
3. Howard v. Kunto
a. Howard has deed to neighbor 1s land. Neighbor 1 has deed
to neighbor 2s land. Neighbor 2 has deed to land west of
his house. Howard moved to quiet title on Kuntos land and
home, and won.
b. Court rejected notion that summer occupancy destroyed
required continuity in favor of whatever is ordinarily
required of owners in general.
c. Court said that tacking of adverse possession (time) is
permitted if the successive occupants are in privity,
meaning theres some non-hostile nexus, such as a will,
contract, deed, etc., that raises their claim of right above the
status of the wrongdoer. (designed to discourage squatting).
iii. Related concepts
1. Tacking
a. To satisfy the given statutory period, one adverse possessor
may tack on to his time with the land his predecessors
time, so long as there is privity. Privity is satisfied by any
non-hostile nexus between the possessors, such as descent,
contract, deed, or will.
i. If A conveys blackacre to B then A and B are in
privity.
ii. If AP takes possession by ouster or taking
abandoned property, then no privity and no tacking.
2. Disabilities
a. The statute of limitations will not run against an owner who
is considered disabled.
i. Who is disabled?

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3.

4.

5.

6.

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1. Most states say people who are minors,

mentally incompetent or imprisoned.
ii. Exact rules in a jurisdiction will be governed by
SOL statute.
iii. To benefit from disabilities protection, the true
owner must be afflicted at the inception of the
adverse possession. A belated affliction will not
inure to the benefit of the true owner.
Discovery rule
a. The SOL period doesnt start in fraud cases until the victim
discovers the fraud. (Victims cant bring actions if they
dont know.)
Adverse possession of personal property
a. A painting hanging in a living room, e.g.
b. Same analysis. SOL starts until true owner knows or should
have known that property was possessed.
Color of Title
a. When adverse possessor takes possession out of reliance on
a faulty written instrument that appears to give title to the
property.
Legal title vs. Adverse possession
a. Legal title to property rights gives the owner constructive
possession of that property. Because actual possession
trumps constructive possession, however, legal title when
unaccompanied by actual possession does not help a
property owner when it comes to an adverse possession
dispute.
i. Just AP

1. Generally, if there is 10 acres and the

adverse possessor sits on two and meets the
elements of adverse possession
continuous, hostile, actual, notorious, and
exclusive -- then the adverse possessor will
gain ownership of the two acres and the
actual owner will maintain possession over

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[Possessions role in property law]

Possession is central to theories justifying ownership.

Under Lockes theory of property, for example, people gain ownership of unowned objects by possessing those objects and mixing labor
Initial ownership ideas rest on an idea of first possession, thinking we saw in Post and MIntosh
Prior possession lies at the heart of many property law doctrines.
Under this rule, a prior possessor will generally have a superior claim to an object as compared to a subsequent possessor, if, for examp
Possession plays evidentiary role in disputes about ownership,too.
Absent other evidence about ownership, current possession may create a presumption of ownership .

the remaining eight, even if the ownership is

constructive i.e. the owner isnt there.
b. AP w/ Color of Title
i. However, when the adverse possessor takes
possession under color of title meaning, she takes
possession out of reliance on an invalid written
instrument that appears to give title to the property,
then the adverse possessor may obtain title to all the
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property described by the document, but only if the

actual owner only constructively possesses the
property and only in jurisdictions that recognize
constructive adverse possession.
7. Adverse possession and future interests?
a. What happens if an adverse possessor enters property that
is divided between present and future interest holders and
later satisfies all of the requirements of adverse possession?
i. If, e.g., A has LE and B has R. If AP enters and
satisfies, then the AP will AP just the LE. B still
owns future interest and so clock restarts @ As
death.
ii. Exception: The SOL doesnt run against future
interest holders if entry happens after ownership has
been divided into present and future interest
holders.
8. Why AP?
a. Prevents title owner sleeping on rights; rewards productive
use of property.
b. Clears ambiguous title.
c. Recognizes personal reliance.
g. Exclusion
i. Ways to exclude:
1. The hermits right
a. Most use of hermits right will be governmental. Protected
wilderness area, for example.
2. Bouncers right
a. Permitting some to enter, but not others
3. Exclusionary Vibes
a. Creating a vibe that would be welcoming to some, but not
others that builds a sense of community.
4. Exclusionary amenities
a. Offering amenities that attract some, but not others. *golf
course. Discrimination by proxy.
ii. Why is the right to excluded critically important?
1. Jacque v. Steenberg Homes (Wis. 1997)
a. Retired farmers refute to allow mobile home manufacturer
to cross their field to deliver mobile home, but
manufacturer does anyway and court finds the act an
intentional trespass. The jury awarded $1 in nominal
damages and $100k in punitive.
i. Is that allowed?
1. WSC held that in case of trespass, when
nominal damages are awarded for an
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intentional trespass to land, punitive

damages may be awarded.
b. Whats the purpose of punitive damages?
i. To serve/protect landowners property
interest/privacy rights
ii. Societal interest in respect for law, because a right is
meaningless unless protected by the state.
iii. In other words, punitive damages are deterrent;
they deter businesses from violating others
property rights/ignoring right to exclude.; deter
self-help remedies; and they engender respect for
the law.
iii. Limitations of exclusion
1. State v. Shack (N.J. 1971)
a. Defendants went onto private property to secure medical
services and to visit a migrant worker with legal problems.
i. The situation was unique because the workers were
highly disadvantaged; isolated; a federal program to
assist prompted need for access; the workers were
unaware of their rights and opportunities.
b. The court ruled that, under NJ common law, ownership
of real property does not include the right to bar access
to governmental services available to migrant workers,
therefore, no trespass.
c. Ruling showed that property rights serve human values and
recognized insofar as they serve those values. This can
present a limitation on property rights.
d. Title to real property cannot include dominion over the
destiny of people the owner allows on the property, as
their well-being must remain the paramount concern of
a system of law.
iv. Freedom based theory of private property
1. Justifies private property by arguing that it protects and promotes
individual freedom. Proponents of freedom-based theories make
three distinct types of arguments about the relationship:
a. Creates a zone of individual autonomy
b. Offsets political power
c. Gives people access to the resources that they need to make
basic life decisions for themselves.
2. IN short, private property can be described as a sort of distribution
of freedom and unfreedom.
a. See: Friedman and Reich.
v. Hypo
1. The press wants to come in and document the condition of the
workers. How will a court likely decide the case?
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2. ------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------h. Intellectual Property

i. There are three major types of intellectual property:
1. Copyrights
a. Protects the expression of ideas in books, songs, videos,
etc., for life of the creator plus 70 years, usually.
i. Ideas themselves are not copyrightable
ii. Fair Use Doctrine, which allows for limited use,
strikes balance between creators and consumers.
2. Patents
a. Protects inventors of new products for ~20 years.
i. Product must be useful, novel, and non-obvious
1. Rewards inventors by giving them a
monopoly, but limits the monopoly to x
amount of years, thereby protecting
consumers from lifelong exorbitant prices.
3. Trademarks
a. Protects words, names, symbols, devices that a person uses
to identify his goods from those sold by others
i. Rewards those who create brands
ii. Helps consumers
ii. Perhaps the most important part of intellectual property law is
striking a balance between the creation and consumption of
intellectual property.
1. Creation
a. Rights given to creators incentivize creation but can restrict
consumption.
2. Consumption
a. Rights given to the consumer incentivize consumption but
can restrict creation.
iii. International News Service v. AP
1. INS copied AP news from bulletin boards and early editions. AP
says INS violated APs property rights in news and constituted
unfair competition. Injunction on third question affirmed.
a. SCOTUS:
i. IS there property in news?
1. News isnt property, but a sort-of quasiproperty: The rights exist between
competitors but not between either party and
the public. And the underlying facts are
commonly owned.
ii. If there is, does it survive first publication?
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1. Although the rights dont exist against the

public after publication, the rights exist
between competitors.
iii. Does defendants conduct = unfair competition?
1. Rule: the parties are competitors in this field
and on fundamental principles, when the
rights or privileges of the one are liable to
conflict with those of the other, each party is
under a duty so to conduct its own business
as not unnecessarily or unfairly to injure that
of the other party.
iv. The reasoning is like the dissent in Post, in which
Justice Livingston said that if you give rights to the
first person who mortally wounds the fox you
would be allowing someone to come in at the end of
a long hunt and take the fox away from someone
else who had put the work in. Who would want to
hunt if that were the case? Perhaps news could be
distinguished, however, because at the time a right
to news exists between agencies one has already
exercised dominion and control over it that is,
they took the facts, which are tantamount to the
wild beats maybe, and theyve molded them in a
way to fit the form of a news report and to literally
fit the medium in which they are to be published. So
the news has been mortally wounded in a sense. If
another company arrived after and somehow
duplicated the mortally wounded fox with minimal
effort and then sold it at a profit, then that wouldnt
be fair, nor would it be good for commerce, as who
would want to put in the hard work when they could
pirate someone elses?
v. Pattern hypo: Should rule of INS v AP apply?
1. Maybe. Patterns are probably like facts.
Facts such as George Washington was the
first president are made of component
parts like who GW was, what the president
is, and distinctions between first and last.
These components are commonly owned.
Patterns, too, contain component parts,
which to a degree have been worked into
something greater and which anyone could
apply the same level of inquiry and recreate.
18

So, if D merely uses the pattern, then that

should be allowed. If, however, D uses the
pattern and form, then that should be viewed
as a violation, because at a certain level of
creation, what is commonly owned becomes
copyrightable.
b. New Test NBA v. Motorola, Inc. (1997)
i. Plaintiff generates or gathers info at cost; info is
time sensitive; defendants use of the info
constitutes free-riding on the plaintiffs efforts;
defendant is in directed competition with a product
or service offered by plaintiff; and the ability of
other parties to free-ride on the efforts of the
plaintiff or others would so reduce the incentive to
produce the product or service that its existence or
quality would substantially threatened.
iv. Property in ones persona
1. White v. Samsung Electronics America
a. Vienna White sues Samsung for using her likeness (a lookalike robot in front of a look-alike wheel of fortune board)
in a commercial. Court ruled for White, stating that people
have a Right of Publicity.
b. Right of publicity
i. Property right in ones image, likeness, and
identity.
c. Dissent said overprotecting IP is as harmful as underprotecting it, as it stifles creativity by preventing others
from building on ideas.
d. Case is a little different from prior case because it starts
from the qualities creating the right of publicity and breaks
qualities down to determine at what point right ceases to
exists, whereas other case built up.
v. Property in ones body parts
1. Moore v. Regents of the University of California
a. Moore sues for the wrongful exercise of ownership rights
over the personal property of another, relying on cases like
right of publicity cases, and argues for right to direct use of
cells after removal.
b. Attempting to balance a patients rights with policy goals of
research, the court ruled that a physician has a fiduciary
duty to disclose all material personal interests that might
influence her professional judgement before securing a
patients informed consent to medical treatment; and

19

II.

20

c. Perhaps more importantly it ruled that once cells leave a

patients body, they are no longer that patients property.
i. Said that statute eliminated so many rights it
couldnt look at what was left as property or
ownership as far as conversion was concerned. And
so basically, defendants couldnt wrongfully
exercise ownership rights if rights didnt exist in the
first place. Basically, b/c he didnt have every right
in the bundle, he had no rights.
d. Dissent concept of property is broad and abstract; not all
forms of property form the same bundle of rights. Moore
should have the right to do with tissue at least what
defendants did: contract w/ researchers. Basically, you can
have property rights in something, even if you dont have
every stick in the bundle.
Estates and Future Interests
a. Present Possessory Estates (freehold)
i. Fee Simple Absolute
1. Defined: Absolute ownership of potentially infinite duration.
Holder can sell, divide, or devise.
2. Language: To A, To A and his heirs.
3. Future interest: none.
a. Note: a living person has no heirs. State statutes designate
heirs for people who die intestate. If someone dies intestate
without heirs, then property escheats to state.
ii. Fee Tail (largely extinct)
1. Defined: though virtually abolished, the fee tail passes to grantees
lineal blood descendants. Idea was to preserve family dynasties.
2. Language: To A and the heirs of his body.
3. Future interest: reversion if in grantor; remainder if in third party.
iii. Defeasible Fees (3)
1. Fee Simple Determinable
a. Defined: Confers potentially limitless ownership subject to
a catch that uses language of duration, which, once
violated, terminates ownership.
b. Language: so long as, until, during, while, as long as.
c. Future interest: grantor has possibility of reverter; the
grantor does not have to expressly retain a POR; it is
automatic; modern trend = POR can be transferred.
2. Fee Simple Subject to Condition Subsequent
a. Defined: Confers ownership with specific conditional
limitation that once violated gives the grantor the
opportunity to re-take.
b. Language: but if, provided that, on condition that, if,
provided however.

c. Future interest: right of re-entry

d. Note: when language is ambiguous = FSD < FSSCS
3. Fee Simple Subject to Executory Interest
a. Defined: Confers ownership that otherwise looks like the
durational language of fee simple determinable or
conditional language of fee simple subject to condition
subsequent, but if violated, gives future interest
automatically to a third party.
b. Language: To J so long as L runs track, otherwise to C; To
A but if X event occurs, then to B.
c. Future Interest: to third party.
iv. Life Estate
1. Defined: Confers interest that lasts at least as long as one persons
life; if durational language specific then term of years.
2. Language: To a for life, then to B; To A for the life of B.
a. To a for life of B = this is a life estate pur autrie vie,
because As estate is measured by anothers life.
i. Can also be created when holder of a life estate
transfers life estate to third party, in which case
third party has life estate measured by transferors
life.
3. Future interest: third person executory interest
4. Limitations: life tenant is prohibited from committing three forms
of waste:
a. Affirmative waste willful act of destruction
b. Permissive waste neglecting property
c. Ameliorative waste renovations or transformations that
increase the premises value. (minority)
b. Future Interests
i. Future interests created in Grantor
A condition is a condition
1. Possibility of Reverter (FSD);
precedent when it appears
2. Right of Entry (FSSCS);
before the language creating
3. Reversion (LE);
the remainder.
ii. Future interests created in third party
E.g. To A for life, then, if B
1. Remainders (LE)
graduates from college, to B.
a. Vested Remainders
i. Indefeasibly vested
remainder
1. Remainder is a vested remainder if it both:
a. Goes to a born person (ascertained);
AND
b. No event must occur before
possession (no precedent condition).
c. Example: A for life, remainder to B.
Comma rule: When conditional
ii.
Vested
remainder
subject to complete divestment
language in a transfer follows
21

language that, taken alone and set off

by commas or other punctuation,
would create a vested remainder, the
condition is a condition subsequent,
creating the vested remainder subject
to complete defeasance.

1. Remainder is vested;
2. There is condition subsequent that cuts short
remaindermans right to possession or time
with land.
3. Example: O conveys To A for life,
remainder to B, but if B dies under the age
of 25, to C. A is alive and B is 20 years old.
iii. Vested remainder subject to divest in open/closed
class
Condition precedent is in
1. Subject to open
same clause as words of
a. Remainder is vested in a group,
conveyance or in separate
clause that precedes words of
category, or class of takers, at least
conveyance
one of whom is qualified to take
possession; and
Condition subsequent is in a
b. It is possible for more people to be
separate clause that follows
added to the class.
words of conveyance to
2. Subject to divest in closed class
a. Remainder; and
Several limiting rules
b. The class is closed nobody can be
were created as
added.
disincentives:
i. Rule of convenience: class
Destructibility Rule: Contingent
closes whenever any member
remainder would be destroyed if
can demand possession.
it was contingent at the time the
preceding estate ended.
b. Contingent Remainder
i. Remainder is contingent if any one of the following
To A for life, and if B has reached
21, to B. A died, leaving B, who
applies:
at the time of As death was ~21.
1. A stated event (precedent condition) must
Historically rule destroyes Bs
CR.
occur before possession; or
2. It goes to unborn (unascertained) persons.
Rule was abolished. If condition
unsatisfied, Os heirs now holds
ii. Alternative CR
estate. Once B turns 21, he takes.
1. O grants Blackacre to A for life, then to B
The Rule in Shelleys Case: To
if B survives A, and if B does not survive A,
A for life, and then to As heirs. A
then to C. A, B, and C are alive.
Is alive. Historically rule would
give A FSA. (Virtually abolished.
a. B and C have alternative contingent
remainders in FS.
Doctrine of worthier Title:
When O is alive and attempts to
2. O grants Blackacre to A for life, then to B
create future interest in heirs (To
if B survives A, and to C if B does not
A for life then to Os heirs) then
DOWT says Os heirs title is
survive A and if C lives to the age of 21. A,
void & O has reversion.
B, and C are alive, and C is 18 years old.
DR survives today as a rule of
a. B and C have contingent remainders
construction, not law, so grantors
in FS, but they are not alternative
intent controls. Must state,
DOWT is not to apply.
because C needs to satisfy an
additional condition precedent
living to the age of 21
2. Executory Interest
22

Read carefully left to

right; divide into clauses,
one for each interest.
(Look for commas that
separate clauses)
Identify each interest as
completely as possible
state both the future
interest and the present
possessory estate it
would take. i.e.
Contingent remainder in
fee simple absolute
Do not forget
reversionary interests in
grantor if the grant
conveys less than grantor
owns.

c.

23

a. While remaindermen follow life estates and patiently wait

their turn to take, an executory interest follows defeasible
fees and is a future interest that takes effect by cutting short
another transferee (shifting) or the grantor (springing).
i. Shifting (third party)
1. To A and his heirs, but if B returns from
Europe within the next year, then to B.
ii. Springing (grantor)
1. To A if and when he marries. A is unmarried.
If and when A marries A cuts short Os
otherwise limitless time with the land.
iii. Merger of interests
1. A fee simple absolute can be created when all the outstanding
interests come into ownership by one person.
a. E.g. If A has a life estate, and B has an indefeasibly vested
remainder in fee simple absolute, and A transfers his life
estate to B, then B has a Fee Simple Absolute.
iv. Setting a price on future interests
1. Future interests can sometimes be sold by looking at an actuarial
life expectancy table to determine the duration of a life estate and
applying the discount rate.
v. Resolving Ambiguous language
1. Marrenholz v. School Board
a. O conveyed This land to be used for school purposes only;
otherwise to revert to Grantors herein. The issue was
whether it was a fee simple determinable (POR) or fee
simple subject to condition subsequent (ROE). Another
difference: If FSSCS cant transfer.
i. Court rules that its a FSD w/ POR citing only
language and POR.
ii. Notes: generally, when language is ambiguous,
courts favor FSSCS, as its the least severe result;
also, modern trend is to allow the inter vivos
transfer of the POR and ROE.
2. White v. Brown
a. I wish Evelyn White to have my home to live in and not to
be sold. Handwritten will later reiterates that My house is
not be sold.
i. White claims Fee Simple language. Nieces and
nephews claim Life Estate, and thus they get
remainder.
Rules Against Restraints on Alienation
i. Courts tend to be hostile to restraints on the alienation of property, and
whether a court will allow it depends on three factors:
1. What type of interest is being restricted?

a. Fee simple, life estate, tenancy?

i. Courts are more tolerant of restraints on life estate;
least tolerant of restraints on fee simple.
2. What kind of restraint?
a. Disabling restraint
i. denies the grantee of the property the power to
alienate the property.
1. To A but A does not have the power to
transfer the property to any other person.
b. Promissory restraint
i. The grantee promises not to alienate the property
1. O conveys to A. In return, A promises not to
convey or otherwise transfer to any other
person.
c. Forfeiture restraint
i. Grantee forfeits property if he attempts to alienate
1. To A but if A attempts to transfer the
property to another person, then to the
grantor.
a. Appears to create FSSCS, but
actually, because total forfeiture
grant would be void, its FS.
3. Total or partial?
a. Total
i. Prevents alienation to any person at any time
1. If fee simple, then void.
2. If life estate, total disabling restraints are
void.
b. Partial
i. Do not completely prevent the alienation of
property, but prevent alienation to a specific person
or class of people and may also be temporary.
1. To A but A agrees not to transfer to B.
2. To A but A agrees not to transfer the prop for
two years.
a. Courts are hostile toward
partial/temporary restraints on fee
simple, but if modest, maybe valid.
b. Partial and temporary restraints on
life estates will probably be allowed.
ii. Note: Restraints are OK as long as they restrict use and not alienability.
iii. The one clear rule is a total restraint on a fee simple, no matter the
kind, is void.
1. Rules of Construction

24

a. Conveyances should be interpreted to best achieve the

intent of the grantor.
b. Conveyances should be interpreted to favor a fee simple
absolute.
c. Conveyances in wills should be interpreted to avoid partial
intestacy, where he gives some, but not all of his property
upon death.
d. Conveyances should be interpreted to favor alienability of
property.
e. Conveyances should be interpreted to favor a fee simple
subject to condition subsequent over a fee simple
determinable. (ROE requires affirmative action, so less
likely that property will be forfeited than POR).
f. Conveyances should be interpreted to favor vested interests
and disfavor contingent.
g. Documents should be read as a whole. Provisions should be
read to be consistent with one another.
d. Rule Against Perpetuities
i. Overview: The rule against perpetuities voids an interest if theres a
chance it will vest more than 21 years after the death of a life in being or
measuring life.
1. Rule: No interest is good unless it must vest, if at all, no later
than twenty-one years after some life in being at the creation of the
interest.
ii. Applies to:
1. Vested Remainders
2. Remainders Subject to Open
3. Contingent Remainders
4. Executory Interests
5. Option Contracts
iii. Vests when:
1. It becomes a present possessory estate;
2. It becomes an indefeasibly vested remainder; or
3. It becomes a vested remainder subject to total divestment.
iv. Measuring life:
1. Someone alive at time device was created.
v. When is interest created?
1. Conveyance/deed/inter vivos transfer:
a. moment of sale or delivery
2. By will:
a. moment testator dies
vi. Purpose
1. to limit dead-hand control and encourage property alienability and
perhaps break up concentrations of wealth.
vii. The test
25

1. Does it apply? Determine which future interests have been created.

2. Identify conditions precedent (what must happen before a future
interest holder can take?)
3. Find a relevant measuring life (alive during creation and relevant
to conveyance)
4. Ask, will we know with certainty within 21 years of the death of
the measuring life if our future interest holders can or cannot take?
viii. Common problems
1. Fertile Octogenarian Rule
a. When it comes to RAP a person can have a baby at any age
2. Class gifts
a. Bad as to one, bad as to all rule
i. Class must close within the perpetuities period
ii. All conditions for every member of the class must
be satisfied
1. For example, O conveys To A for life, then
to such of As children as live to attain the
age of 30. A has two children.
a. B and C. B is 35 and C is 40. A is
alive. Hence, this class is still open.
Thus, this is an example of a gift to
an open class, conditioned on the
members surviving to an age beyond
21. B and Cs vested remainders
subject to open are voided by the
common law RAP and its bad as to
one, bad as to all principle.
3. Unborn widower
a. Dont know who a persons widow will be
4. Afterborn child
a. Afterborn child problem exists when there exists a
possibility that a child will be born after life in being at
creation of interest
ix. RAP has consequences (options)
1. Symphony Space
a. Broadwest Realty owned building in NY in 1978, but was
losing money on it and couldnt rent it out. The company
struck a deal with Symphony Space, a theatre company,
where the company would sell the building for $10,000 and
Broadwest would lease the non-theater space $1/year. They
did this so the property tax exemption would save them
$30K a year. Most importantly, the deal also stipulated that
Broadwest would retain an option agreement, allowing
them the exclusive to right to repurchase the building.
26

III.

27

i. Possible dates of repurchase: At any time after July

1, 1979, so long as closing occurs during and of the
calendar years 1987, 1993, 1998 and 2003.
b. The option is treated as a contingent remainder.
c. Broadwest then sells to Pergola in 1981, which tries to
exercise option, but Symphony Space brought an action,
claiming that the option violated RAP.
d. The courts viewed the option as one future interest, which
could vest at any point after 1979, so instead of striking just
striking 2003, it ruled the entire interest was invalid.
x. Options to purchase and renew leases
1. Despite general rule, most courts hold that options to purchase in
commercial leases are exempt from the rule against perpetuities.
xi. Rights of First Refusal
1. Some jurisdictions retain the traditional rule that preemptive rights,
also called rights of first refusal, are subject to RAP. Preemptive
rights give the holder the right to purchase the property if the
owner chooses to sell either by offering the market price for the
property or by matching the offer made by any bona fide
purchaser.
Concurrent Ownership
a. Tenancy in Common
i. Tenancy in common is the default concurrent interest.
1. Language: To A and B.
2. A and B own as tenants in common.
ii. Interest can be divided equally or fractionated.
1. An interest is fractionated if many people own it, but only a small
fraction of the whole interest.
2. This generally happens when people die intestate and their heirs
inherit their deceased parents share over multiple generations.
iii. Co-tenants each have an undivided share of the ownership of the
whole property.
1. This means each co-tenant has the right to possess and use the
entire property.
2. Neither has the right to exclude the other from the property
3. Neither can prevent the other from using in a particular way.
iv. Partitions as problem solvers
1. When things go wrong in a tenancy in common, the law allows a
co-tenant to get out of the relationship at any time for any reason
by petitioning the court for a partition of the co-owned property.
2. Types of partitions
a. Partition in kind
i. Physical division
b. Partition by sale
i. Auction off & divide

Fungible Property vs.

Personal Property
Fungible property can be
replaced by market value
compensation.
Personal property cannot.

28

v. Ark Land Co. v. Harper

1. In dispute over 75 acres, family appealed lower court decision
mandating the property be divided by sale, but the appeals court
held that in a partition proceed, where one party opposes the sale
of property, the economic value of the property is only factor of the
test to determine how to partition.
2. If a property can be partitioned in kind, evidence of longstanding
ownership, coupled with sentimental or emotional interest in the
property should control, even if doing so may entail some
economic inconvenience to the party seeking a sale.
3. Notes:
a. Case illustrated strong presumption in favor of partition in
kind.
i. Three-part test to overcome the presumption of in
kind:
1. Property cannot be conveniently partitioned
in kind
2. The interest of one or more of the parties
will be promoted by the sale
3. The interest of the other parties will not be
prejudiced by the sale
b. Potential worries about partition by sale is that one party
with more resources could get the entire property at a
below-market price.
i. African Americans were preyed upon this way for
decades until the Uniform Partition of Heirs
Property Act was passed, which established an
appraisal process to protect co-tenants.
vi. Rights and Obligations of Co-tenants
1. Co-tenant who commits waste is liable to other co-tenant
2. Co-tenants generally are not fiduciaries.
3. Each co-tenant has an equal right to occupy.
4. If one co-tenant ousts another co-tenant meaning one co-tenant
has demanded entry or shared possession and the one occupying
refused then the co-tenant who ousted the other can be liable for
rent or contribution.
a. Co-tenant in possession Liability for Rental Value
i. Rule: A co-tenant is only liable for rent or an
occupancy charge if he ousts the other co-tenant.
But if that happens, the ousterer is liable to all other
co-tenants for their shares of the fair rental value of
the property.
1. When co-tenant hadnt denied entry, no
ouster -> no rent. Spiller v. Mackereth.

a. Ouster starts the adverse

possession clock running against
the ousted tenant.
ii. Co-tenant in possession collecting profits from
property
1. Rule: If a co-tenant rents a property to a
third person and the third person has to share
the property with other co-tenants, then the
original co-tenant is not liable for rent.
a. Exception: If a co-tenant rents a
place and ousts other co-tenants in
the process by giving his renter sole
tenancy, then the original co-tenant is
liable to other co-tenants for the fair
rental value of the property, not just
whatever he received in rent.
i. Same basic rules apply to
other payments received by
one co-tenant, such as
minerals, timber and other
natural resources.
iii. Minority rule (Esteves v. Esteves)
1. When on final accounting the tenant who
had been in sole possession of the property
demands contribution toward operating and
maintenance expenses from his co-owner,
then the other co-owner can offset those
costs with a rent credit.
b. Contribution
i. Rule: If one co-tenant has paid more toward
expenses than another co-tenant, then upon selling
the property, the indebted co-tenant must pay up,
even if he hasnt been in possession of the property.
ii. Mortgages, carrying taxes and carrying costs If
on co-tenant pays more, he can seek contribution.
iii. Voluntary improvements dont count. If a cotenant makes such an improvement, she can only
obtain credit toward some of the costs for the
improvement if that property is later sold or
partitioned.
b. Joint Tenancy
i. Holds right of survivorship.

29

ii.
iii.

iv.
Language must be
specific as to show
intent when it
comes to JTs
because ROS is
considered radical
and there is a
preference for TIC.

vi.

30

1. When a joint tenant dies his shares disappear, leaving the other
joint tenant the sole owner of Blackacre. (sometimes referred to as
passing to other joint tenant.)
Why are they used?
1. Joint tenancies are often used to make a transfer at death that
avoids probate. They can also be a substitute for a will.
Crucial distinction between co-tenants and joint tenants
1. When two people share ownership of a piece of property as cotenants and one of them dies and leaves all his property to his wife,
then the wife becomes the new co-tenant of the remaining cotenant.
2. When the same situation occurs with joint tenants, the original
joint tenant becomes the sole owner.
Creation of Joint Tenancies
1. Joint tenancies require clear language of conveyance. Ambiguous
language will be read to create a tenancy in common.
a. O to A and B as joint tenants Jt in most jurisdictions
b. O to A and B as JT w/ right of survivorship Jt in most;
some require this language.
c. O to A and B as JT and not as tenants in common. JT in
all.
d. O to A and B jointly Jt in many, but is asking for trouble.
v. Unities
1. Joint tenancies require unities. The Common Law required
four, but modern courts are more lenient.
a. Unity of time acquiring interest at the same time
b. Unity of title acquiring interest from the same instrument
c. Unity of possession tenants must have equal rights of
possession and use.
d. Unity of interest the joint tenants must have equal shares
in the property.
2. If unities are not met, then JT could become TIC.
a. Some jurisdictions dont allow someone who owns
Blackacre to create a joint tenancy between herself and
another individual.
i. Straw Person
1. In those jurisdictions, the owner uses a
person called a straw person -- who hold
title temporarily for the owner so the interest
can be made.
Severance of Joint Tenancies
1. Can Be Unilateral (minority of states)
a. Any joint tenant can sever the joint tenancy by conveying
her interest to a third party. E.g. A and B own as JT. B
conveys to C. Now B and C own as TIC.

Transfers as an
inter vivos gift

31

i. Reasoning: destroys unities of times and instrument.

b. With more than two JTs, the transfer by one tenant of her
interest will sever the JT with her and the other tenants, but
the other JTs will still be JTs with each other.
i. A, B, C own as JT. C to D. Now D is TIC with A
and B, but A and B are JTs.
ii. If A dies, then B and D would still be TIC, with B
owning 2/3 interest and D owning 1/3. (B has 2/3
because of the previous JT.)
2. Destroys the right of survivorship
a. Big deal b/c interests vanish when turn into TIC.
b. ROS is right of last survivor to take the whole estate.
3. Transferability
a. Tenancies in common are freely transferable during life and
devisable at death; interests in JT are freely transferable
during life, but not at death because of ROS.
4. Ambiguity
a. When A and B own and B conveys to herself.
i. Majority JT is not severed.
ii. Minority Severed
1. Straw person severs in all jurisdictions.
b. If one JT conveys something less than a fee simple to a
third party
i. JT mortgages her share to a third person
1. Mortgage is a security interest in property
that a borrower gives a lender to secure an
obligation.
ii. IF mortgage, then JT grants property interest to the
lender.
1. A and B own. B mortgages to L.
a. If mortgage severs, then A and L are
TIC.
i. If B dies, then Ls interests
remain.
b. If it doesnt, then A and L are JT.
i. If B dies, then the Ls interest
disappears and A owns alone.
c. Thus, its in Ls interest for it to
sever.
2. A and B own. B mortgages to L. A dies.
Giving all to D.
a. Severed A & L had TIC. D & L
have TIC when A dies.

b. ~Severed A and L had JT. If not

severed, then L gains control of full
interest when A dies & D gets nada.
vii. Harms v. Sprague
1. Facts: Charles Sprague is friend of John Harms. S is buying home
from Simmons for $25,000. Mortgage for $7k. Does it sever?
2. Found that a joint tenancy is not severed when one JT executes a
mortgage on his interest in the property. It viewed a mortgage as a
lien. Court said, viewed this way, unlike a conveyance of title, then
the unity of title would not be destroyed nothing was conveyed.
3. Found that mortgage executed does not survive as a lien on
plaintiffs property. While Harms was alive, the mortgage existed
as lien on his interest in the joint tenancy. Upon his death, his
interest ceased to exist and along with it the lien of the mortgage.
4. Notes: The mortgage by one JT will sever the JT in a title theory
state; the law in lien theory states is less uniform. Some lien theory
states follow Harm, and others, concerned about the creditors
interests, hold that its severed.
a. The distinction is that some see it as an actual conveyance
and some dont.
i. Title theory states
1. title to the security interest rests with the
mortgagee. (Like, FSSCS)
ii. Lien theory states
1. the legal title remains with the mortgagor
c. Tenancy by the entirety (fewer than states recognize)
i. The tenancy by the entirety is a concurrent interest between spouses that in
most respect resembles a JT. Super JT. Requirements:
1. Same unities
2. And the couple must be married when they receive the interest.

IV.

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a. If not married, could create JT or TIC.

3. Ideal language: To Spouse 1 and Spouse 2 as TBTE.
a. Law favors TBTE, so if it meets the unities requirement,
the interest will likely be valid.
4. Has right of survivorship, but spouses ~ unilaterally
convey/sever b/c shared individual undivided interest.
ii. Ways to terminate: spouses together transfer to another person, a spouse
can die (surviving spouse receives sole ownership), decree of divorce.
Closing statements
a. What is property anyway?
i. Its a set of legal rights among people about things.
b. What is the bundle of sticks?
i. Because property rights are not absolute, the bundle of sticks is a
metaphor that outlines the obligations and rights owners have.

1. So, what are some of those sticks?

a. Right to possess, Right to repair, Right to destroy, Right to
exclude, Duty to use reasonable care, Right to use, Right to
lend, Right to transfer, Duty to not harm, and Duty to
Dispose properly.
2. But property is owned in a variety of forms i.e., an infinite
number of bundles of rights can be created from the sticks in the
bundle that comprise full ownership. And some of those combos
are at odds.
c. Tensions within the property system
i. Exclusion vs. Access.
ii. Privilege to use vs. security from harm.
iii. Powers to transfer vs. powers of ownership.
iv. Immunity from loss vs power to acquire.
d. Recurring themes
i. Social context
1. Context matters in defining property rights. How a piece of
property is ownedas well as what the property is and its owners
intentionswill determine quite a bit.
ii. Formal vs. Informal sources of rights
1. Property rights stem from formal grants, such as deeds, wills,
leases, contracts, but also informally from oral promises, conduct
(adverse possession), actual possession (finders), relationships
(intestacy), gifts (Gruen v. Gruen), reliance and social customs and
norms (Ghen v. Rich).
iii. Alienability problems
1. For the system of property law to function, property itself needs to
be alienable. However, if it is freely alienable, it could ultimately
become inalienable. So, the law strives to balance what is required
to promote alienability with owners desire to freely transfer.
iv. Contractual freedom and minimum standards
1. Another balancing act. The law places limitations places on what is
acceptable in forming property-related contracts. For example, a
landlord can evict, but in most states, must go through a formal
process to protect the rights of the tenant.
v. Social welfare
1. Granting power over property allows owners to obtain resources to
satisfy human needs and encourages productive activity and use of
land, but it can also cause harm. Rules of ownership often seek to
promote efficiency and productivity, lower costs, and maximize
benefits to owners and citizens.
vi. Justified expectations
1. People justifiably expect to use and transfer their property as they
see fit, and property law often protects justified expectations, but
because property often affects others, expectations must be
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restricted when unjustified. Property law often seeks to determine

expectations and determine whether they are justifiable.
vii. Distributive justice
1. Property right = legal form of wealth. The rules of property law
play an enormous hand in determining the distribution of both
wealth and income.
e. Normative approaches to resolution
i. Positivism and legal realism
1. Dont look at the moral content; just look at the rules.
ii. Justice and fairness
1. No, positivism is baloney. There are gaps in the law, and those
gaps must be filled in by judges, and those judges should do so in
a way that protects individual rights, promotes fairness, or ensures
justice.
a. What is just/fair?
i. Natural rights some rights are natural,
fundamental.
ii. Universalized a claim is just only if it can be
universalized such that everyone would be entitled
to a similar protection. (Kant)
iii. Social contract asks whether people would choose
to protect certain interests. (Locke/Hobbes/Rawls)
iv. Desert mixing property w/ labor, removing from
the state of nature.
v. Autonomy - property as tool to develop autonomy.
vi. Human needs/distributive justice
vii. Utilitarian/social welfare/efficient
viii. Social relations rights are relations among people.
Every right in world implies a correlative
vulnerability in someone else and is limited by
competing rights of others.
ix. Human flourishing Aristotle
x. Libertarian & progressive approaches limiting gov
vs. increasing equality and access.

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