** GO THROUGH AND COPY HYPOS FROM OUTLINE

______ CONCEPT OF PROPERTY_______

I. Why Recognize Property?
A. Protect First Possession
i. This is how property right started
B. Encourage labor
i. John Locke reasoned property obtained through your own labor was yours
C. Maximize societal happiness
i. Utilitarian theory by Jeremy Bentham
ii. Property is a commodity
iii. To have a successful economy, there must be 3 property rights:
a. Universality- all valuable resources must be owned by someone.
b. Exclusivity- owner must be able to exclude property from others use and
enjoyment.
c. Transferability- owner must be able to transfer ownership of property.
D. Ensure democracy
i. Prior to start of USA, people viewed prop. like socialism (operated by the community
as a whole) and we should share things all together. In USA, we view that it is better
for some people to own things and not others b/c we value labor and efficiency.
ii. Nowadays, property can ensure democracy because there is an allocation (distribution)
of more rights among others. It is not just landowners ruling and making decisions.
E. Facilitate personal development

II. Owners usually have the whole bundle What Is Property?

A. Ways to acquire property**method of acquisition affects the scope of the prop rights that
owner receives
i. Rule of Capture
a. (Pierson v. Post).
ii. Finding lost or misplaced property
iii. Adverse Possession
a. (useful exploitation of the land).
iv. Gift
v. First possession
a. (“Original Acquisition” of the land)
b. Johnson v. M’Intosh
vi. Transferring
vii. Gov. gives it to you.
viii. Contract
ix. Inheritance (Estate)
x. Accession
a. Greenberg

III. CASES
A. Pierson v. Post

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 i. Facts: Pierson (D) killed and carried off the fox they both were going after on land not
owned by anyone. Post (P) sued because he was going after it first. Ct. ruled Pierson
had fox b/c he had possession of it first.
ii. Rule of Capture- for property no one has owned yet, to get ownership you must have
occupancy/control. Pursuit is not enough. This rule is limited to wild animals. BUT the
idea that rule of capture is broader, ex. flying baseballs.
a. Want to have a bright-line rule stating that the person who wounds the
animal is the “owner.”
iii. Dissent (shows another theory of Prop Law): you can have ownership rights if you are
pursuing something and are within reach or have reasonable prospect (like here) of
taking the property. Supports the labor approach.
iv. There is a diff. between ownership and possession- a matter of physical control.

B. White v. Samsung Electronics America Inc. - Right to publicity

 Intangible property. (this case shows that prop. varies between tangible and intangible
things).
 Facts: Ds used white’s name & likeness in ad w/o her permission to make money. White
claims she was identifiable in the ad. SJ was granted in favor for Ds. White appeals.
 This court ruled that people could assume who the robot was supposed to depict. Thus, SJ
against White was wrong.
 RULE: Although the Ds created something new (the ad) and under Labor Theory could
be considered property, the right of publicity does not allow it.
o You can use the name and likeness of Celebrities, but it has limitations, like the
right to publicity b/c the name or likeness is considered property of the celebrity.
______ RIGHT TO TRANSFER, EXCLUDE, USE AND DESTROY _______
Bundle of Rights
Property is a bundle of rights
1) Right to Transfer
2) Right to Exclude
3) Right to Use
4) Right to Destroy

A. Bundle of rights are

1) Defined by the gov, not absolute, can be divided, can evolve as law changes
B. ** EXAM ** first thing you should do is ESTABLISH PROPERTY RIGHTS
1) Ask self: what are the right and what are the limitations?

II. Right to TRANSFER

A. An owner can freely transfer (alienate) property
B. This right is limited for public policy reasons

C. Any owner may freely transfer (or alienate) property to anyone.

1) This right is limited for public policy reasons. The law restricts:
i) Who can transfer property or obtain it
(a) Ex. insane persons cannot do either.
ii) What property can be transferred

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 (a) Ex. military pensions cannot be transferred.
(b) Ex. rights to corneas can be given but not sold.
iii) How property can be transferred.
(a) Ex. cannot transfer property at owner’s death unless it is in writing, signed by
owner, and appropriately witnessed by 2 people.

D. An owner can also give some of their property to another, but still remain owner.
1) Ex. easement to use property.

E. Succession of ownership overtime is called chain of title

1) If two different people have competing claims to the same property, the person with
the better chain of title will prevail.
2) Absolute title to lands cannot exist at the same time in diff. persons or governments.
Absolute titles must be exclusive or at least exclude all others not compatible with it.

F. CASES
1) Johnson vv. M’INtosh
(I) FACTS: indians transferred title to land to Johnson; US (colonies) transferred
title to M’Intosh. Who had right to transfer title?
(II) HOLDING
1. M’Intosh has the title to the land because US had right to transfer, not the
Indians b/c…
a. Although the Indians discovered the land. They were only
considered occupants, so they only had the right to use and none of
the other 3 rights in the bundle.
b. Indians’ discovery was seen as irrelevant.
(b) This court uses the idea of: Conquering of Indians  dominion of land by US, is
like possessing/capturing it, so they have  “discovery” to the land by US  US
ownership rights and rights to transfer their property.
1. This court is relying almost fully on utilitarian arguments by saying the
US can use the land to most efficiently and best.
2. This ruling does not translate to modern property issues.

III. Right to EXCLUDE – Trespass Divide

A. Each owner has the broad right to exclude any other person from his property.
1) Thus, if you own land, you can prevent anyone from trespassing on it.
B. Exceptions: consent or necessity.
C. We can limit your right to exclude due to policy reasons, but this is a balancing act.
1) You may be able to limit the right to exclude for a greater reason, like necessity.
D. The focus was NOT on necessity.
E. There can be trespass to chattels in modern day.
1) Ex. spam in your email  trespass to chattel b/c it interference w/ your right to
exclude.

F. CASES
1) Jacque v. Steenberg Homes, Ic
(I) FACTS

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 1. D had to deliver a mobile home. The easiest route of delivery was across
Ps’ (Harvey & Lois Jacque) land b/c of snow on road. Despite adamant
protests by the P, D went across Ps' land to deliver mobile home.
(II) HOLDING
1. the absolute right to exclude perspective, which is a stronger view of these
rights, b/c for policy reasons:
a. It gives signaling function to other courts and people,
b. This gives legal certainty and consistency with the law.
Set new precedent that held that when nominal damages were awarded
for an intentional trespass to land, punitive damages may be awarded
even without a showing of compensatory damages.

IV. Right to USE – Nuisance Divide

A. A landowner has almost an absolute right to use his property any way he wishes.
1) Supports Personal Development Theory
2) Limitations on this rule:
(a) Nuisance (most prominent limitation on right to use)
(b) You cannot do something that impacts another person’s right to also use and
enjoy their property.
(c) Factors, like usefulness, harm, and necessity, weigh into this decision
 Remember: in nuisance, we will allow a nuisance if the utility
outweighs the harm.
 Spite fence
 Cannot hurt anyone.

B. CASES
1) Sundower, Inc. v. King
(I) FACTS
1. P built a hotel next to the one he just sold to D. D was angry and built an
18-foot “sign” between the two.
(ii) This court ruled that it was a “spite fence” and needed to be partially abated.
(iii) RULE: no owner has the legal right to make malicious use of their property.
1. Some courts require showing malice to prove a spite fence, but other
courts reject a spite fence claim.
2. Here, the intent mattered. It showed D was using the property
maliciously.
(iv) HOLDING: This court focused on whether the sign was useful or not. If the sign
was useful, maybe an exception
(v) Here, D’s right to use was limited and P’s interest in sunlight was protected in
the narrow context of spite fences.
(vi) Court said they will restrict right to use land however you want based on a
necessity analysis.

2) Prah v. Maretti

V. Right to DESTROY
A. Most property will be destroyed.
B. The right to destroy is a logical adjunct to the right to use.
C. Whether property can be destroyed arises over destroying things of substantial value.

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 1) But usually, the law rarely interferes.

D. This right of the 4 is the weakest, there are many limitations:

1) Public policy
2) Historical value or value seen by government.
3) The case below shows an interest of 3rd parties to the application of this right.

E. You cannot kill pets. That is animal cruelty although they are your property.
F. Eminent domain can prevent destruction in some cases.
G. There are laws to protect and artist’s work from getting destroyed or altered after urchase.

H. CASES
1) Eyerman v. Mercantile Trust Co.
(I) FACTS
1. the owner of a STL house said in her will (she dead) to destroy the house
and sell the land. Neighbors wanted an injunction to stop that.
(II) HOLDING
1. This court grants the injunction because…
a. This house has historical value.
b. Destroying a property for no reason other than it was in someone’s
will is against public policy—no one benefits.
i. It is a waste and destruction of resources.
ii. This supports the Utilitarian Approach that sees property as a
commodity and not something to be wasted.
c. It decreases the value to the beneficiaries and the property values.
2. Rule: A landowner’s attempt to compel his successor to do something
against public policy is deemed void.

______ ADVERSE POSSESSION_______

A. Owning Real Property

I. Justifications for adverse possession

a. Prevents frivolous claims against someone asserting title of land.
b. Corrects title defects/technical mistakes.
1. AP protects the title of whoever occupies the land.
c. Encourages development; promotes owner to make productive use of his land.
d. Protects personhood b/c you make use and enjoy your land.
II. When discussing these elements, ONLY talk about the element and it’s requirements in
each element. Do not mix.

B. Adverse Possession
I. Elements of adverse possession

a. Actual possession

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 1. Claimant must :

a. Physically use the land

i. In the same manner that a reasonable owner would, given its

character, nature, and location of the land.
b. Location differences: dessert, at midnight, etc.

b. Exclusive

1. Claimants possession is not shares with others or the public

c. Open and notorious

1. claimant’s possession must be visible and obvious, so that if the owner did a
reasonable inspection of his land, he would become aware of the adverse claims.

2. Aka not being sneaky

d. Adverse (hostile)

1. Possession was not authorized by the owner

2. Intent is a huge part of the analysis

e. Continuous

1. given the character, nature, and location of the land.

2. Look at timeline

f. For full duration of statute of limitations

1. In MO 10 years

II. Typically, two situations where adverse possession arises:

a. Claimant asserts title by AP to an entire tract of land, typically by virtue of an invalid deed
or due to an ambiguity arising from confusion about inheritance.
b. Boundary disputes or the situation in which an owner of one parcel encroaches upon a
portion of a neighboring parcel.

III. CASES

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 A. Gurwitz v. Kannatzer
1. FACTS: road was built and separated land, putting the 17-acres on the other side
of the road. Gurwits (P), sued D to obtain title to the 17-acres through AP.
2. HOLDING : P could obtain title through AP.
a. P displayed hostility  he placed signs on the tract of land.
b. P physically possessed  used it to cut wood and make renovations.
c. P’s possession was open and notoriously and exclusively b/c the public
passed by and D did not object to P making use of the land as an owner.
d. P possessed the land continuously for the requisite period of time.
e. P invited others over to the land  shows P thought he was the owner.
f. Although P was not physically present on the land every day for 10 years,
continuous possession does not require continuous occupancy and use.

B. Van Valkenburgh v. Lutz

C. Adverse Possessor’s State of Mind

I. CASES
A. Fulkerson v. Van Buren
1. Illustrates bad faith approach (not widespread b/c this is very hard to show)
2. TAKEAWAY: The hostility analysis tied to analysis of claimant’s mental state,
not necessarily another requirement.
3. Facts: P (Fulkerson) received legal title to land in Ark., which contained a church.
Later, D (Church and Rev. Van Buren) began to use church building, and other
church members started to clean up the land were the church was located.
4. P asked D to leave the premises, but D refused. P brought suit.
a. D filed a counterclaim alleging that it obtained title to the land by AP.
5. This ct. ruled that church/D did not have AP b/c they lacked hostile intent to AP
the land during their time cleaning it up; the intent was formed later, even though
prior, they knew they didn’t have title.
6. Rule: possession of land will not be presumed adverse.
a. The intent has to be at the claim at issue
b. The intent to hold adversely must be clear, distinct, and unequivocal.
c. You must have intent to possess during the AP time.

D. Proving Adverse Possession

I. CASES- Howard v. Kunto
1. Illustrates tacking.

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 Howard gave their land that

Moyer was on to Moyer.

Moyer gave their deed, which

Kunto was on to Howard (P).

Howard Land

2.
b. Kunto’s had right to stay—they had AP b/c:
1. RULE: Tacking of AP is permitted if the successive occupants are in privity.
a. Previous Os of Kuntos’ home were in privity (i.e. a relation between two
parties that is recognized by K law) w/ Kuntos; thus, tacking was allowed,
meaning the time period of the previous owners could constitute the
time needed to satisfy the SOL.
2. Tacking- this is satisfied when one occupant transfers his rights in the property to
a succession by something like a will or a deed.
a. It is putting together different units of time. You can show this by making
sure the time is materially the same.
c. ISSUE: did the Kuntos have continuity with the previous owners through privity, since
they were only there for a year and it was only during the summer?
1. YES. These homes were summer homes, so the nature of the owners were not
required to be there 24/7, but usually only in the summer.

______ CAPTURE AND FINDERS_______

A. Capture
I. Rule of capture depends on the type of animal and if person obtaining possession is a trespasser.
a. Animus revertendi- the animal has a habit or returning; not a wild animal.
b. Courts usually do not assume wild animals will come back to you.
c. For property, if the animal is normally considered a wild animal, then apply the wild animal rule
to it. Just b/c animals have been domesticated does not make it animus revertendi.
1. Ex. fox that is a pet is classified as a wild animal.
2. BUT if there is a signaling function (something that shows or is associated) with
ownership, then you can consider it a pet, animus revertendi.

II. CASES
A. State v. Shaw
1. FACTS : Ds took the fish from the fishing nets of another.
2. HOLDING
a. ct ruled that the fish were ferae naturae (wild animals) and were stolen b/c:
i. To acquire property rights in a wild animal, you have to (1) bring
them into your power and control, (2) be able to maintain control, and
(3) show no intention to abandon them.

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 ii. The law does NOT require absolute security against the possibility of
escape. You just need sufficient control.
b. This ct. examined this more under the labor theory. The court has started to use
this approach when discussing rule of capture.

B. Popov v. Hayashi
1. FACTS: Barry Bonds hit his 73rd home run. In the stands that day were Popov (P) and
Hayashi (D). As the ball reached stands, P made contact w/ the ball through his glove. As
ball entered P’s glove, P was attacked by those surrounding him, dislodging the ball. D
was not involved in this attack.
2. HOLDING
3. Issue: Is a person entitled to an interest in a piece of property if they achieve significant
steps towards possessing said property (labor theory?), but are hindered due to the
unlawful conduct of another?
a. YES. P and D both have an equal, undivided interest in the ball (this outcome is
very rare), b/c P acquired pre-possessory rights when he was attacked while
catching said ball.
4. The reason we did this RARE thing is b/c courts sit in equity and restored fairness, so
that theory trumped property law, which values efficiency.
5. RULE: Pre-possessory interest (something more than “intending to have” but less than
“having” full possession) is where a person undertakes significant, but incomplete, steps
to achieve possession of abandoned personal prop, but there is a failure to continue the
effort due to the unlawful conduct of another.
a. Qualified interest in the property; thus, you still get a remedy.
b. This is a corrective intervention.
c. In this case, P had exerted some control over the ball, but had not yet acquired
possession. It is unknown if he would have acquired possession, because he was
attacked by the fans seated around him. Policy reason: It would be inappropriate
to create an incentive for such attacks to take place. Thus, in this situation, P is
deemed to have acquired a pre-possessory interest in the ball.
d. B/c D was not involved with the mob that attacked P and he had absolute certainty
of possession (Rule of Capture), both P and D have an equal, undivided interest in
the ball.
e. The court say this property as abandoned property, meaning that the property
owner voluntarily relinquished its rights.

B. Finders
I. Once lost property is found, we must allocate the property rights.

II. Finder’s rights governed by multiple factors, like:

a. Type of property: lost mislaid, abandoned, treasure trove.
b. Character of the finder: invitee, trespasser, employee, resident owner
c. Place and location where it was found.
1. Home, business, public.
2. Private land vs. public property.
a. Public- finders get it against all, except the rightful owner.
b. Private- the owner of the land gets it, not the finder.
i. Exception: the owner is not the occupier of the land.

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 d. Intention

III. When there are multiple options for ownership, cts do not pick which one is most fair, but
rather, they choose what establishes the owner the quickest.
a. Allows for some wrongdoing, like a trespasser to have it, but not later trespassers. The
reason the ct does that is to prevent against continuous seizures of property from one
another.
b. Property law doesn’t care how you got the property, we just want to find the next in line
to be the property after the true owner is gone.

IV. 4 types of “found” chattels

a. How we decide what type of find chattel it is, is we look to the INTENT of what the true
owner meant before they parted with their property.
b. Finder has a duty of care (bailment).
1. Overall, we expected the bailee (finder) to treat it as the true owner would.
a. Thus, the only rights the finder has to it is to (1) keep the chattel safe and
(2) return it to rightful owner upon demand.
c. If an item is found by employee during course of employment: item belongs to the
employer.

CATEGORIES OF FOUND PROPERTY

Type of property What it means Who has the best claim
Abandoned Voluntarily and Knowingly relinquishes all rights, title, and Finder (against everyone, including actual owner),
Property interest to it. unless the find is made at an owner-occupied
residence.
When the owner no longer wants to possess it (voluntarily
relinquished right, title, and interest) ***Does not apply to real property that is
abandoned.
Lost When the owner Involuntarily and Unintentionally parts Finder against all but true owner, unless the find
Property with its possession and does not know where it is is made at an owner-occupied residence.
(Statutes usually require the finder to 1. Notify PO
**the difference between this and mislaid is the or gov. official, 2. Deposit article w/ them, 3.
involuntary. Publish notice. Once statutory procedures are
followed and owner makes no claim within 6-12
months, finder gets it).

Mislaid Voluntarily parts with it and knowingly places it
Property somewhere, but then unintentionally forgets it.
*Owner has to part with it voluntarily
Treasure Owner conceals property in hidden place long time ago.
Trove Needs to be buried. Usually limited to gold, silver, coins, or
currency. owner is prob dead/undiscoverable. We don’t
know if it was a mistake or purposeful.
Owner of the premises (locus owner) on which
the property is found against all persons other
than the true owner*Finder has no rights
Varies according to state law; MO tends to favor
owner of land.

V. Lost v. Mislaid
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 a. Cts look at where the property was found.

1. Does it look like it was intentionally set there?

b. Mislaid property
1. are items meant for use, but then forgotten by the owner.

2. EX: items may have been considered mislaid if found on a seat at a restaurant, or a desk
in an office.
3. McAvoy v. Medina – mislaid
A. FACTS: P sued to get the money he found in D’s Barbour shop. P told D to keep
it until real owner came, but the real owner never did.
B. HOLDING
i. This ct classified prop. as mislaid, not lost. Thus, the finder does not
get finders rights to it. The item was awarded to the owner of the
establishments (shopkeeper), not the finder. Unlike the other cases.
II. Policy reasons: protecting the true owner. If you go to store and
forget something, you will probably return to find it. Therefore,
shopkeeper should get lost item so that it gives the true owner the
opportunity to find it.
iii. No labor theory at work here.

c. Lost property

1. is that which was unintentionally lost by an owner.

2. EX: the items were found on a sidewalk or in a park because one might assume that
the owner did not know that they might have been left there.

3. Armory v. Delamirie
A. FACTS: Armory (P), a chimney sweeper, found a jewel in the course of his
duties. He took the jewel to Delamirie (D), a goldsmith, for purposes of
appraisal. D’s apprentice took the jewel through deceit and refused to return it
to P.
i. P sued for the return of the jewel or for its value.
B. HOLDING
i. Here, P was entitled to return of the jewel from D.
ii. A person who finds a piece of chattel has a possessory property
interest in the chattel, which may be enforced against anyone
except the true owner of the chattel.
iii. Takeaway: Finder prevails as against all but the rightful owner
(and prior possessors).
c. Main takeaway: property rights are relative.

d. Construction possession
1. RULE: if a property is found by a trespasser, the owner of the locus in quo has a
better right to possession, even if the owner of the locus in quo has no knowledge
of the item.
a. Trespasser has no right to the property as against the landowner
i. This is consistent with the rules for feral animals.
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 b. Example: while trespassing on Blackacre (owned by Orly), Tina finds a
ring. Because Tina was trespassing, Orly has a better right to the ring than
Tina.
2. RULE: A landowner has constructive possession of all chattels buried under or
attached to the land.
3. RULE: Generally, a person has constructive possession of all chattels located in
her home.

4. Hannah v. Peel- construction possession

A. FACTS: broach found in home of man who had not been present for many
years.
B. HOLDING
I. Here, P is awarded $$$ for the brooch b/c he was the finder and
D was not physically present in the house at any time, P’s find
was defensible against all parties except the rightful owner
c. TAKEAWAY: Owners must live on or occupy the property, exercise
control over the property, and have the possibility to have had and still
have a right to prior possession to get finder’s rights. If you are never
present and someone else occupies your home, then the finder gets the
found property.
d. Takeaway: location/context of the find is relevant.
i. Rights of ownership over the land don’t necessarily stretch to
objects to found on the land. In other words, just b/c someone
found something on their land, does not mean that they
automatically get ownership rights.

VI. CASES
A. Benjamin v. Linder Aviation, Inc
1. FACTS
a. Bank (D) repossessed airplane and took it to Lindner Aviation (also D).
Lindner employee, Benjamin (P), discovered money concealed in the
plane’s wing during inspection. The money may have been left there in the
1950s.
b. 3 competing claimants (Bank, Lindner Aviation, Benjamin) 
i. Majority concludes item was mislaid; thus, Bank has finder’s
rights to the money.
ii. Lindner’s claim is the second-best claim. 
iii. Benjamin, the finder, has the weakest claim, because he was on
the clock when he found the money. 
iv. If you are an employee, what you find belongs to employer
since you are acting under your employment duties.
c. The careful placement of the money suggests that the owner intentionally
left it, and it was mislaid.
d. The $ can’t be c treasure trove, b/c it is not old enough and it isn’t buried.

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 ______ THE VERTICAL DIMENSION OF OWNERSHIP_______
A. The Vertical Dimension of Ownership

B. Airspace Rights
a. Common law rule: landowner’s title extended upwards to the “heavens” and down
to the center of the earth; virtually unlimited.
i. No one, including government, can use land w/o consent.
ii. If no consent  trespass.

B. United States v. Causby

I. FACTS
1. Causby (P) owned chicken farm near an airport in NC. US (D) used
airport for military flights, which passed less than 70 feet over
Causby’s home and farm. The noise/ lights from planes caused the
family to suffer ongoing sleep deprivation, nervousness and fear, led to
the death of 150 chickens, and forced Causby to close his business.
II. RULES
1. Causby standard: owner must have “exclusive control of immediate
reaches of the enveloping atmosphere.”
III. HOLDING
1. CT SAYS THERE WAS AN EASEMENT – NOT A TAKING
a. Doesn’t fully do away with common law; introduces “fuzzy”
standard where the court does not set strict standards of how
exact height above the earth they can fly something.
2. easement (it is a legal fiction)- a nonpossessory right to use land in the
possession or ownership of another person.
a. Ex. right to use a private road across land owned by another,
put train tracks across someone’s land.
3. Reasoning: airplanes are part of everyday life and we must accept the
inconveniences of it, and it is not considered a taking. The airspace is a
public highway. The only time we can sue for it is if it is low and
frequently interferes with our use of the land.
4. Here, airplanes is an area of public domain. Therefore, you can use
land all the way up to where airplanes are in the public domain.

C. Subsurface Rights
a. There are more limitations on the right to ownership of property on subsurface land
than with the airspace b/c there are shifting things underneath the ground.

b. Common law standard: title extends downwards towards the center of the earth.
c. Chance: introduces standard similar to Causby in the sense that we measure the reach
of the right from the surface of the land.

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 d. But different formation: subsurface rights stretch to protect “reasonable and
foreseeable” use of land.
e. Lingering issues:
i. Use of new technologies
ii. Climate change
iii. State by state approach.

F. Chance v. BP Chemicals, Inc

I. FACTS
1. P sued D claiming D disposed hazardous waste byproducts, that
caused a violation of Ps rights as property owners b/c the by products
migrated into the subsurface rock beneath Ps property
II. HOLDING
1. D won
2. D complied with required permits.
3. P’s subsurface property rights are not absolute.
4. The trespassing was not foreseeable, and for this to be actionable, it
needs to be foreseeable. Here, it was too speculative.
iii. RULE:
1. The rights do stretch vertically, but there is no trespass if the party
does not actually interfere with the owner’s reasonable and
foreseeable use of the land. Here, the owners were not using the land
all the way down there.
2. Result: the common law rule is not displaced. It is still good law, but
we do need to set up some limitations.
a. Potentially a loophole to this rule that limits: due to
environmental concerns b/c there are concerns over climate
change and migration affecting the land.
iv. ***( DID WE DO WTER RIGHTS>!>!

______ PROPERTY, PERSONHOOD AND OWNERSHIP OF BODY

PARTS_______
A. Property and Personhood
a. Dred Scott v. Sandford
i. This case is remembered for the decision that blacks were not citizens, but
merely property. Obviously not good law.
ii. This case is one example of property rights being used against humans.
1. Another ex. M’Intosh.
iii. This case shows how property law has transformed.
iv. Dred Scott (P) was a slave living in slave state of MO. His owner took him to
free states. P and his owner returned to MO, and P was sold to Sanford (D). P
sued D for his freedom, claiming to be a citizen of MO. This ct. said he was
not a citizen; rather, he was property.
1. Supported it with constitution.

14
 B. Property in Body Parts?
a. Moore v. Regents of the university of CA
b. Greenberg v. Miami Children’s Hospital
c. Denise Grady, A Lasting Gift to Medicine That Wasn’t Really a Gift

Property in Body Parts?

 Overarching rules:
o Think of these in relation to IP Law.
o These 2 cases are very limited holdings. But the one thing you can takeaway is
that: property or quasi-property rights are possible for things like cell-lines.
o Anything that is removed from the body, the patient loses its property in interest
in it.
o Moore- once tissue or other bodily substances are removed from your body, the
person who it was taken from loses property interest in them.
 The court DOES think there can be property rights and rules for body
parts.
 While the body parts are inside your body, they are yours.
 When the body parts are excised, physical separation, the bundle of
rights can be broken up and transferred to different degrees  there
CAN be a transfer of property.
o Greenberg- Using results is not CONVERSION b/c no property interest once
donated tissue by the donor, regardless if the receiving party uses info gathered
from the bodily tissue and sells it as a commodity.
 Confirms Moore- Your interest does not extend.
 The researchers can have an interest in it
 The court does not care if you gave it voluntarily.
 Moore v. Regents of the University of California, 37-49
o SC of CA, 1991
o OVERALL: Moore shows how far cts have been willing to go to block causes of
action against researchers. The doctor involved in Moore deceived the leukemia
patient as to why he was taking tissue, blood, and other bodily fluid samples and
never informed him he was conducting research, or he was going to patent
(property rights) the “cell-line.”.
 Moore was a willing, but not informed participant in the medical
research, nevertheless the court still dismissed his claims.
 Here Moore gave up his property rights to his bodily fluids, not by
abandonment b/c there was not voluntarily relinquishment, but by
transferring them.
 Here, there was no limited right to transfer. The P transferred all
the bundle of rights to D.
o Claims:
 Informed consent/disclosure (not a property issue)
15
  No disclosure of research
 No disclosure of patent to them
 Conversion (big topic discussed in these property rights)- To establish, P
must establish actual interference with ownership or right of possession.
Here, the ct. ruled NO conversion b/c:
 No court has ever upheld conversion liability for this; no
precedent.
 To impose such a duty would affect medical research and
implicate lots of policy concerns.
 We do not like to treat body parts like chattels/property.
 CA statutory law limits a patient's control over excised cells for
public health reasons. They can be used for research, but if they
are not used for research they must be discarded.
o This makes it difficult to call P's rights property rights.
 The patented cell line is factually and legally distinct from the
cells taken from Moore's body. It is the inventive effort that
patent law rewards with a patent, not just the discovery of a
naturally occurring raw material.
o Regent Univ.’s employees (D) put the work in (labor
theory), so D got the patent.
o Rule: a person who has their body parts/fluids removed have NO property rights
once they have removed from the body; however, there can be property rights
to someone else; they can be transferred.
 Does not discuss anything about being unconscious; thus, that fact does
not matter in the outcome.
o Takeaways: P did NOT have an ownership interest in the removed cells and
matter from body.
 The court DOES see this as property. There can be property rights and
rules for body parts.
 While the body parts are inside your body, they are yours.
 When the body parts are excised, physical separation, the bundle of
rights can be broken up and transferred to different degrees  there
CAN be a transfer of property.
 This is NOT a broad decision. It is fact specific.
o Policy argument: if we did not allow this, then we would not be able to do
medical research.
o Dissent. P’s body is unique and based upon ethical and equitable concerns, the P
should have a proprietary interest in the cells and tissue of his body b/c w/o P,
this would never have been created.
o Concurrence. The P wishes to have a legally recognized right to sell portions of
his body for profit, and such a result is immoral.
 MOORE PROBLEMS, p.142:

16
 o 1. Under Moore, she couldn’t give consent, but the cells were still excised.
Therefore, the surgeons had the property rights.
o 2. b/c the person excised the issues himself, then he gave himself possession and
ownership to the tissues. The doctors who took it and made a cell-line, do not
have right to them. The person himself has the property rights.
 The doctrine of accession provides that which a person uses his own
labor or material in good faith to fundamentally transform another’s
property, he acquires title to the land.
 This example shows that Moore is limited to its fact pattern.

 Greenberg v. Miami Children’s Hospital [coursepack]

o Southern District of Fl, 2003
o Facts: Greenberg (P) contacted Dr. Matalon, a research physician affiliated with
the Univ. of Chicago, to get his assistance with treatment of Canavan’s disease- a
genetically inherited fatal progressive brain degenerative disorder afflicting
mostly Jewish children.
o Dr. Matalon convinced parents, who are carries of this, w/ children w/ Canavan’s
disease to provide tissue samples including bodily fluid samples in a confidential
database.
o However, P and the families understood that any research and treatment
developed that related to this collaboration would remain in the public domain
and be provided to those afflicted with Canavan’s at an affordable and accessible
cost.
 This is similar to Moore b/c of the excision of bodily fluids.
 This is different than Moore b/c the patients know there will be research
with it. Thus, you CANNOT apply Moore.
o Unknown to P, Dr. Matalon applied for and received the patent for the genetic
sequence that was discovered.
o P sued, claiming lack of informed consent; breach of fiduciary duty; unjust
enrichment; conversion.
o Issue. Are property rights are not retained in body tissue and genetic matter if
they were donated voluntarily to research?
o Holding: NO.
 Using results from medical research is not CONVERSION b/c no property
interest once donated tissue by the donor, regardless if the receiving
party uses info gathered from the bodily tissue and sells it as a
commodity.
 The researchers can have an interest in it
 The court does not care if you gave it voluntarily. Your interest
does not extend.

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 o Courts have traditionally been reluctant to extend property rights to donated
tissues for fear of chilling research and development of new medical
treatment. Policy reason.
o Donations are gifts. Thus, P gave their rights through a gift. Not abandonment.

______ INTELLECTUAL PROPERTY AND THE COVID-19

PANDEMIC_______
A. An Introduction to Intellectual Property
a. Misappropriation
i. Copying something from somebody else
ii. Common in IP issues

b. I am guessing this is NOT going to be test on a bunch.

c. Know the differences between copyright and patent.

d. Intellectual Property law (IP Law) protects the creations of the human mind.
i. It is not recognized at common law b/c of the general rule: human
productions, like knowledge, truths ascertained, conceptions, and ideas, after
voluntary communication to others, are free to common use.
ii. IP law is the exception to this general rule.
iii. It is considered a public good: a good that can be consumed w/o reducing any
other person’s consumption of it.
iv. Many people can use it without interfering with each other’s use.
Any time IP comes up, that introduces a whole different area of law. It
diverges.

e. Article 1, Section 8, Clause 8 is what gives IP law protection.

i. “To promote the Progress of Science and useful Arts, by securing for limited
Times to Authors and Inventors the exclusive Right to their respective
Writings and Discoveries.”
ii. This clause concerns “authors” (i.e. anyone that gives origin to work)
and “writings.”
iii. Utilitarian purposes we incentivize creativity and give limited
monopolies.
1. Shows Lockean concept that you get to keep fruits of your
labor.
2. (They are not too broad. If too broad, it would not allow
others to create.)
iv. This is not the usual theory in property law, but it is w/ IP law.

B. 3 types of IP Law:
a. Copyrights-
1. protects original works of authorship.

18
 ii. Ex. books, computer programs/codes, plays, architecture,
choreography, sculptures, music, etc.
b. Patents
1. protects new inventions.
ii. Ex. cell lines, machines, medicines.
iii. We have created patent law b/c we want medical research.

c. Trademarks-
1. protects symbols, names, and words that are used by merchants to
help distinguish their goods and services.
ii. Protects the goodwill.

COPYRIGHT PATENT
Examples of it: Literature, music, plays, and Process
choreography, pictures, art, movies Machinery
sound recording, and architectural Manufacture
work. Composition of matter

What makes it? 1. Originality- must be created, not
copied; possesses creativity.
2. Work of authorship- 8 categories
3. Fixation
Arise by: first-in-time system for allocating
entitlements
What bundle of rights? All, and especially the right to exclude.
Term Due to the Copyright Term Extension
Act (CTEA), the term of a copyrighted
work lasts the length of authors life,
plus 70 years.
1. Patentable subject matter
2. Utility
3. Novelty- must be new
4. Non-obviousness
5. Enablement- the patent must
describe the invention in detail
Same.
All, but sometimes not the right to
use.
20yrs from the date of the
application is filed with (PTO)

Governing power 17 U.S.C. § 106; 17 U.S.C. §102(a)
Do you need to register NO, it is automatic.
it? There is no federal registration required
of copyright, which leads to confusion
on who owns it or if the copyright is
still alive.
35 U.S. Code § 101 and treaties.
Yes with U.S. Patent and Trademark
Office (PTO)
It does not happen naturally

C. COPYRIGHTS
a. 17 U.S.C. § 106: the owner of copyright has the exclusive rights to do:
(1) to reproduce;
(2) to prepare derivative works based upon the copyrighted work;

19
 (3) to distribute copies to the public by sale or other transfer of ownership, or by
rental, lease, or lending;
(4) to perform the copyrighted work publicly;
(5) to display the copyrighted work publicly and
(6) by means of a digital audio transmission.

b. It protects the idea if it is expressed—not the idea itself.

c. 3 requirements for valid copyright,
and thus establish copyright w/o having to do anything else (17 U.S.C. §102(a):

1. Originality- must be independently created, not copied from another, possess

some creativity.
 Originality does not mean novelty, which is a requirement for patent.

2. Work of authorship- 8 categories:

 Literary, musical, dramatic, pantomimes and choreographic, pictorial,
graphic, or sculptural works, motion picture or other audiovisual work,
sound recording, and architectural work.

3. Fixed in a medium of expression

 The work must be written, recorded, or otherwise embody physical form.
 BUT, since fixation is an element, things like stand-up comedy where it
is just performed, means that it is not copyrighted.
o Two things NOT required: registration and notice.

d. To establish copyright infringement:

e. 1) ownership of a valid copyright. This is not at issue here.
f. 2) copying of constituent elements of the work that are original.

D. PATENTS
a. 35 U.S.C. § 101: Patent will be issued to anyone who invents or discovers any new and
useful:
i. Process
1. Ex. swallowing a pill.
ii. Machinery
iii. Manufacture
iv. Composition of matter

b. Must meet 5 requirements to be issued a patent by PTO:

1. Patentable subject matter- look at the 4 categories above
a. Abstract concepts, like mathematics, scientific principles, and physical
phenomena cannot be patented.
b. However, this has expanded over the years. Like the swallowing of a pill.
c. Because these can only be w/in the 4 categories, you have to be specific and
strategic with how you patent it.
i. Ex. a “method” for exercising cats; was actually a laser.
2. Utility
a. patent things that provide actual benefit to humans.
b. This is very rarely an issue.

3. Novelty- must be new

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 a. If just one prior invention (1) discloses every element of the invention
and (2) enables a person skilled in the art to make the invention, then the
invention is NOT novel.

4. Non-obviousness
a. the invention must not have been obvious to a person of ordinary skill.
b. Hardest one to meet.

5. Enablement-
a. the patent must describe the invention in such detail as to enable any person
skilled in the art to which it pertains to make and use the same.
b. This furthers use of the product after the term is over.

E. Many patents are declared invalid in litigation.

F. Copyright does not protect discovery of a fact, but patents protect discovery of an invention.

G. 2 public benefits:
a. Public receives new socially valuable products
b. Others may use of inventor made their product to also make something too, as long
as it does not infringe on inventor’s invention.

H. The most important right the owner of patent has is the right to exclude…they get to decide
who makes, uses, or sells the invention during the patent term.
a. Patent owner has all the rights, but sometimes there may be NO right to use
depending on regulation of laws prohibiting it.

I. Patents are not given for human things b/c you cannot own humans:
a. Cts allow patents for genetically engineered animals, unless they are too human-like.
b. Patents are not allowed for human genes, but they do stretch to living organisms, like
bacteria.

J. Vaccine Patents and the COVID-19 Pandemic

a. ADD THIS

______ ESTATES AND FUTURE INTERESTS_______

A. An Introduction to Estates and Future Interests
a. Once you know the estate, then you can figure out the consequence.
b. When we say someone owns something, they own a present possessory estate, which is
basically a bundle of rights.
c. An estate = a present possessory estate; one particular temporal slice of ownership.
i. Ask self: How are the estates going to act in a particular period of time?
d. We are discussing the bundle of rights and how they are transferred.
i. Words are important. BE PARTICULAR WITH YOUR WORDS.
ii. Time is important.
e. Common law of estates allows ownership to be split over time.
i. Ex. O grants parcel to Redacre “to A for life, then to B.”
1. A has estate (present possessory interest)
2. B has a future interest (a right to future possession).
f. Note: We look to the history of the deed b/c if there are defects then it affects later deeds.

21
 i. You need to see what was truly conveyed originally and use that.

Our analysis focuses on three distinct questions:

B. First, what language will create the estate?

C. Second, once identified, what are the estate’s distinguishing characteristics?
a. Is the estate devisable  upon death, it passes by will?
b. Is the estate descendible  upon death, can it pass by the statutes of intestacy if
its holder dies intestate or without a will?
c. Is the estate alienable  is it transferable during its holder’s lifetime?
D. Third, which future interest, if any, is the estate capable of?

E. Things to consider in the analysis:

a. Has O died yet?
b. Deed? Will? Intestate?
c. Limitations?
d. It’s a circular approach...check back in with O to see if he has anything left to
give to someone else.

F. Modern Freehold Estates

a. 4 categories
i. Fee simple absolute;
ii. Fee tail;
iii. Defeasible fees, of which there are three species; and
1. Fee simple determinable
2. Fee simple subject to a condition subsequent

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 3. Fee simple subject to executory limitation
iv. Life estate.
 How we determine the difference between these all is their duration; we categorize these estates
according to how long they exist.

 “devise” – when they use this word that means the owner is dead
 “conveys” – this means the owner is alive
 An estate or future interest is usually transferred in one of the three ways:
o Deed- a living person can transfer real property by deed.
 The completed transfer is called conveyance or grant.
 Person who makes a transfer =grantor
 Person who is the recipient = grantee
o Will- property of a decedent may be transferred by will.
 The completed transfer of real property is called a devise.
 The person who contains the devise = testator (male) or testatrix (female).
 Different terms apply to the transfer of personal real property.
o Intestate succession- if a person dies w/o a will, her property will be distributed
according to state statutes, usually to her closest living relatives.
 The completed transfer is called intestate succession.
 To describe transfer of real property = descend
 The recipient is called heir.
 Different terms apply when it is a transfer of personal property.
 If X dies intestate, this is the order of distribution:
1. Issue and surviving spouse (issue is lineal descendants, like children).
2. Parents and their issue
3. Ancestors and their issue
4. Escheat (aka the state)
 Words of purchase- identify the grantee.
 Words of limitation- describe the estate being granted.
o This allows us to differentiate between a lessor and greater estate interest.

G. Fee Simple Absolute

a. States assume a conveyance is a fee simple unless they add additional words
i. Most property rights are fee simple
ii. When there is ambiguity  fee simple

b. Alternative to this is a limitation to the fee simple, and thus a different estate
c. greatest possible interest in the property. The holder of a fee simple absolute can transfer or
use the property however she sees fit (subject to zoning, etc.)

d. No future interest that goes along with it, because A owns the whole thing
i. Also means the most use you can get out of it because A is the only one with interest
in the property, there is no one else to complain (aside, again, from zoning, nuisance,
etc.)

e. Language to use
i. “to A” or “To A and his heirs”
ii. “and his heirs” – modern language
iii. “o conveys to B and his heirs”
1. Convey- there is a deed

23
 2. “and his heirs” it continues to transfer under fee simple
iv. “to G forever”
v. “to G, its successors and assigns”

f. Distinguishing characteristics
i. This is absolute ownership of potentially infinite duration.
ii. You get ALL the sticks in the bundle.
iii. It is freely devisable.
1. On your death, it will pass pursuant to your will.
iv. It is freely descendible.
1. If you die intestate (without a will) it will pass to your heirs.
v. It is freely alienable.
1. During your lifetime, you can transfer it as you please.
vi. It is of limitless duration, with no strings attached.

g. Cole v. Steinlauf
i. FACTS
1. They found a defect that the old deed was fee simple. There was no
mention of heirs, so it was not an intestate succession, and it said “and it
assigns forever.”
2. not modern viewpoint
3. we assumed that if “and his heirs” is not listed = fee simple
ii. HOLDING
1. This ct. had a common law rule that since “and their heirs” was not listed, it
could not be Fee simple. Thus, the ct ruled the deed was just a life estate.
H. Life Estate
a. When a person dies, their estate terminates
i. Estate is measured by life of someone
ii. Bundle of rights goes away at death

b. The holder of a life estate gets to use the property for (usually) his/her lifetime. During that
time, she owns the property and can transfer her interest in it. When the holder dies, his/her
estate ends.

c. It’s an estate measured by a life. The holder of a life estate possesses the property for her
lifetime.

d. Life estate pur autre vie – a life estate measured by the life of someone other than the owners

e. Language
i. “for life”
ii. “To A for life,” OR,
iii. “To A for the life of B,”
1. Here, a life estate pur autre vie is created for A, meaning, a life estate that is
measured not in A’s lifetime terms, but in terms of the life of another, B.
2. It can arise in one of two ways:
a. Ex. “To A for the life of B.”
i. A has a life estate pur autre vie.
ii. On B’s death, A’s time with the land ends, and the estate
reverts back to O, the grantor.

24
 b. Ex. O conveys, “To A for life.”
i. A has a life estate. Suppose that A then transfers her estate to
B.
ii. B now has a life estate pur autre vie. When A dies, the estate
reverts back to O, the grantor.
iv. Not needed at common law – life estate is the common law default
v. Only needed at modern law

f. Distinguishing characteristics
i. It is alienable, but not devisable or descendible.

ii. The life tenant must not commit any of the three forms of waste:
1. voluntary waste, or willful acts of destruction that diminish property value.
2. permissive waste, which is synonymous with neglect, not taking care of
property; and,
3. ameliorative waste, or those renovations or transformations of the property
that work an increase to the value.
a. Not usually recognized by most states.

4. The life tenant (i.e. “To A for life.”) must not engage unilaterally in any
major alterations to the premises unless all of the future interest holders are
known and consent.
a. EX: A, as a life tenant, cannot transform their movie theater into a
multiplex cinema unless all of the future interest holders can be
rounded up and explicitly agree to the change.

g. Why use a life estate?

i. Life estates are much rarer than fee simple absolute, but still fairly common
ii. It allows the grantor the power to give the land to someone but you retain control for
what happens to the property after the grantee’s death
iii. Medicaid planning strategy – life estates are very effective in this context

I. Fee Tail
a. At common law, a fee tail is an estate that lasts as long as the holder and any of her decedents
are alive. When/if no living descendants remain, the estate reverts back to the grantor
b. determined by the lives of the lineal descendants
i. aka: children; we keep it in the family

c. Language to create
i. “To A and the heirs of his body.”
ii. A has the right to possession during A’s lifetime.
iii. Upon A’s death, it goes to A’s descendants. If there are no more descendants, then it
goes to O.
1. Thus, this means that O keeps a possibility of revert

d. Distinguishing characteristics:
i. It is alienable---you get to transfer it while alive.
ii. Not devisable, b/c we want to keep property in the family.
iii. It is descendible.
iv. The fee tail is virtually abolished in the US today, only in DE, ME, MA, RI.
1. If someone tries to make them, it goes to fee simple.

25
 2. We convert this into fee simple by inter vivos transfer (i.e. transfer during
someone’s lifetime).
3. Since it is alienable during your lifetime, you can do this by just writing a K
to transfer it fee tail. You must do this while you have it and the person is
alive; hence inter vivos transfer.

J. Defeasible Fees
a. Types of Defeasible Fee Simple:
i. Fee simple determinable
ii. Fee simple subject to condition subsequent
iii. Fee simple subject to executory limitation

b. Fee simple Determinable

i. The estate may last forever (like a fee simple absolute), but the estate ends upon the
happening of some limitation or condition.
ii. The grantor retains a future interest – a “possibility of reverter” – she automatically
gets the property back (in fee simple absolute) if that limitation or condition happens.
1. Could have some adverse possession issues.

iii. Language to create: “To A:

1. for so long as
a. the one that Fogel will always use.
2. while
3. during the time that”
4. until …”
5. To create the fee simple determinable, grantor must use clear durational
language.
a. Ex.: “To A for so long as she remains a lawyer,” or “To during the
tenure of the Obama administration.”
6. “So long as”

iv. Every fee simple determinable is accompanied by a future interest.

1. Normally a “possibility of reverter”
v. Distinguishing characteristics:
1. This estate, like all of the defeasible fees, is devisable, descendible, and
alienable.
2. Estate automatically ends when a certain event occurs

vi. Accompanying future interest: possibility of reverter.

1. Reverter b/c IF transferee messes up, it reverts back, but there is the
possibility that never happens.
2. Ex. O conveys “to G and her heirs until Alaska secedes from US.”
a. G has a fee simple determinable.
b. The future interest is held by O, so O retains a possibility of reverter,
which becomes fee simple when Alaska secedes.

c. The Fee Simple Subject to Condition Subsequent

i. Estate can be terminated when certain condition/ event occurs.
1. Not automatic.

26
 ii. The event gives the transferor the option power to terminate.
1. hence the right of entry future interest

iii. Language to create:

1. “To A, but if X event occurs, grantor reserves the right to reenter and retake.”
2. “provided that, if on condition that”

3. Two factors must be present:

a. 1) grantor must use clear durational language and
b. 2) grantor must explicitly carve out the right to reenter.
i. If this is not there, it is fee simple determinable.

c. Ex.: Tina conveys “to Alec, but if junk food is ever consumed on the
premises, grantor reserves the right to reenter and re-take.”
i. Alec has a fee simple subject to condition subsequent.
ii. Tina has a right of reentry.

iv. Distinguishing characteristics:

1. It is alienable, descendible, and devisable.
2. The right of entry cannot be created by the transferee.

d. The Fee Simple Subject to Executory Limitation

i. Defeasible fee simple estate created in transferee followed by future interest in 3 rd
party.

ii. Language to create:

1. “To A, but if X event occurs, then to B.”
2. For example, “To Justin, but if Justin ever performs music on the premises,
then to Taylor.”
a. If Justin performs on the premises, he suffers automatic forfeiture of
the estate, and Taylor takes.
b. Justin has a fee simple subject to executory limitation.
c. Taylor has an executory interest future interest

iii. Distinguishing characteristics

1. If the condition is breached, forfeiture is automatic, but this time in favor of
someone other than grantor.
2. It is alienable, descendible, and devisable.

iv. Accompanying future interest: executory interest.

K. Summary of Rules Governing Estates

______ CONCURRENT OWNERSHIP_______

A. Modern Concurrent Estates

27
 a. Ask self: what can these concurrent owners individually and commonly do with the
land?

b. 3 types of concurrent ownership:

1. Tenancy in common
a. **most common and most marketable estate.
b. The law presumes the grantor intends to create this, absent express
language to the contrary.
c. It can be multiple individuals with the same interest in the estate.
i. Interest =the range of right over a particular piece of land.
2. Joint tenancy
3. Tenancy by the entirety (for married couples)

Tenancy in common Joint tenancy Tenancy by the entirety

Each tenant Undivided, fractional It is like tenants in common. Only difference is the Only married couples.
has… interest. right of survivorship.
Undivided right to use and possess
They have an undivided, fractional interest to use and property. No fractional interest.
possess the whole property. “What’s mine is yours.”

Can they use Each has the right to use Each has the right to use and possess the WHOLE Each person can use and possess the
the whole and possess the parcel, even if the fractional interest is smaller than WHOLE parcel. That is the benefit
parcel? WHOLE parcel, even if others. of this. Equal in everything.
the fractional interest is Do not get to control the whole bundle of rights; just
smaller than others. their fraction.
Each person gets to
control the whole
bundle of rights.
Characteristic It is freely alienable, Each party has a “right of survivorship,” so when one There are no individual parts that
s devisable, and owner dies, the other owner automatically becomes the can be owned separately by the
descendible. sole owner. parties.

*no restrictions. Due to the right of survivorship, it is NOT devisable Neither spouse can transfer, convey,
nor descendible. or hinder his or her interests.

***NOT as marketable, due to this limitation.

Language to O “to A and B” or “to Use the words “to A and B as joint tenants with right O “to A and B as husband and wife
Create A, B, and C.” of survivorship.” as tenants by the entirety.”

Make the right of survivorship known!

Does it need No. To create, it NEEDS the unities: To create, it NEEDS the unities
the unities? 1. Time PLUS marriage:
2. Title 1. Time
3. Interest 2. Title
4. Possession 3. Interest
4. Possession
*if one is missing, no joint tenancy. It may default to 5. Marriage

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 tenancy in common b/c everything would go to the
other party. *if one is missing, no tenancy by the
entirety
A person can create a joint tenancy even if they already
have an interest in the land by conveying to self and
another person.
Can they Yes Yes No
partition?
Severance? Yes, it is the only (?) one that can be severed.
What happens The proceeds will be The joint tenancy is severed in the interest of the person This cannot be transferred unless:
when divided among the breaking, not everyone else’s. The transfer breaks b/c 1. Death by 1 or both spouses
transferred? parties, according to the unities of time and title are no longer there. 2. Divorce
their proportionate 3. Agreement of both spouses.
shares. The right of survivorship is destroyed in the person
breaking it.

The other people who do not break continue their joint

tenancy, unless there was just one other person, then no
one is joint tenant anymore.
Other: Sometimes people use this to substitute for a will since
it will make the property skip probate.

c. Unities
i. Time
1. All joint tenant must acquire their interest
2. This means give ALL the rights at the same time
3. If different days, the unity of time is absent
ii. Title
1. must acquire title by the same instrument
iii. Interest
1. Must have same shares in the estate, equal in size and duration
2. This is the fractional part of the interest
iv. Possession
1. Must have equal right to possess, use and enjoy the whole property

d. James v. Taylor
i. FACTS
1. The deed (i.e the bundle of rights) was transferred by the grantor to the three
grantees "jointly and severally, and unto their heirs, assigns and successors
forever," with the grantor retaining a life estate.
a. Two of the three grantees die before the grantor.
b. The surviving grantee wants it to be a joint tenancy, b/c it would make the
him the sole owner of the property, rather than a tenancy in common
where she would only have a %.
c. The descendants of the two deceased grantees argued that the deed created
a tenancy in common among the grantees.
ii. HOLDING
1. The appellate ct ruled that there was a tenancy in common.
a. The court looked to the intent. Since the intention was unclear, the court
defaulted to tenancy in common, not intention to joint tenancy.
iii. RULE

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 1. shows the court’s preference for tenancy in common. Thus, if wording and intent is
unclear, a ct may ignore grantor’s existential evidence, and default to tenancy in
common.
 When faced w. ambiguity in deed trial ct. may determine intent of grantor by
looking to extraneous circumstances to decide what was really intended by
language in deed
 In many states, such as Ark., statutes been adopted which presumptively
construe instrument to create tenancy in common rather than joint
tenancy
w These statutes do not prohibit joint tenancies but merely provide for
constr. against joint tenancy if intention to create it not clear
w Statutes such as these do not require actual use of words “joint
tenancy”
w Survivorship distinctive characteristic of joint tenancy
w And where from four (4) corners of instrument ct. can interpret
intention of grantor or testator as creating survivorship est. ct. will
deem est. to be joint tenancy w. right of survivorship

B. Severance
a. a joint tenant can end tenancy by simply conveying her interest to a third party.
b. Tenhet v. Boswell
i. FACTS
1. is a joint tenant and the other joint tenant leased the property to a third person, w/o
her knowledge and subsequently died.
2. There was a limit right of use in the bundle. The joint tenant gave the 3 rd-party
lease had option to buy.
a. This is a big problem b/c they are joint tenants and the right to use goes
away. P, upon the tenant’s death, gets sole interest.
b. P sought to have the lease declared invalid, but ct dismissed her complaint.
ii. RULE
1. leasing does not sever the joint tenancy. Rather, if that person dies during the term,
the lease does not sever the joint tenancy, but rather the lease expires upon the
death of the joint tenant. Here, it is the death that severs the joint tenancy.
2. There is another case from Maryland that has a diff. outcome with the same facts.
a. Why? Ct argued that is practically a permanent transfer, which breaks the
bundle.
3. Thus, there are two ways the court could decide this scenario. Therefore, on an
exam, discuss both viewpoints.

iii. HOLDING
1. The partial alienation of the joint tenancy property by the lease did not sever of the
joint tenancy, like how selling does.
2. There would be no severance b/c the joint tenant did not depart with its interest in
the bundle of rights; there was no intent to terminate his joint tenancy.

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C. Partition
a. TRIGGER: an argument between landowners and how to use the land.
b. Partition  ends the tenancy and distributes its assets

c. DEF: means div of land held in c0-tenancy into co-tentants respective fractional shares
i. if land cant be divded fairly  can be sold and profits are split
d. Standard of proof must be established to overcome presumption of partition in kind:
w Party desiring to compel partition through sale required to demonstrate:
» that prop. cannot be conveniently partitioned in kind;
» that ints. of one (1) or more of parties will be promoted by sale; and
» that ints. of other parties will not be prejudiced by sale.
e. other considerations other than $$$ attach to ownership of land and cts. should be and
always have been slow to take away from owners of real est. their common l. right to
have same set aside to them in kind

f. Who can do it?

i. Any tenant in common
ii. Any joint tenant
iii. NOT tenancy by the entireties.

g. When we decide how to partition land, we need to balance the economic, emotional, and
historical-longstanding interests of the parties.
i. We balance fairness.

h. Ark Land Co. v. Harper

i. Rule: the economic value of the property is not the exclusive test for deciding whether to
partition in kind or by sale. This ct. used fairness in the topic.
 HOLDING: Ct. held that in partition proceeding in which party opposes sale of
prop. econ. value of prop. not exclusive test for deciding whether to partition in kind/
by sale
 Evid. of longstanding ownership coupled w. sentimental or emotional ints. in
prop. may also be considered in deciding whether ints. of party opposing sale
will be prejudiced by prop.’s sale; and
 Sentimental/emotional factor should ordinarily control when shown that prop.
can be portioned in kind though it may entail some economic inconvenience to
party seeking sale.
 Thus cir. ct. erred in determining that prop. could not be portioned in kind

D. Cotenant Rights and Duties

a. How to handle the parties’ rights will usually be settled by their terms of the agreement.

b. If there is no agreement, the ct has default rules.

i. Generally, each cotenant pays proportionate share of the expenses. If cotenant fails to do
that, then other cotenant can seek reimbursement.

c. Each cotenant entitled to his proportionate share of all rents and profits derived from land

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 d. Accounting – equitable action in which cotenant seeks to obtain his share of rents or profits
generated by prop.
e. Contribution Action – cotenant seeks reimbursement from his cotenants for expenses paid for
operation or maint. of prop.
f. Cotenant who pays for needed repairs will receive credit for these costs in acct. action or
partition action
g. Cotenant who improves prop. receives credit equal to increased mkt. value produced by
improvement in acct. action or partition action

h. Esteves v. Esteves
i. Current property law
ii. Example of labor theory

iii. FACTS: deals with property division of proceeds from sale of a one-family house by a
tenancy in common, where parents owned home with their son, D.
1. Both parties had a 1/2 interest in the residence.
2. This is a tenancy in common, b/c no right of survivorship.
3. Ps and Ds sold the residence, and they needed to figure out how to divide the
proceed. This is equivalent to a partition.
iv. ISSUE
1. Whether pls. who occupied house by selves for approximately eighteen (18) years
before selling and paid all expenses relating to house during that period entitled to
reimbursement from def. for half sums they paid
v. RULE
 In solving disputes re: rights and obligations of tenants in common respecting
payment for maint. of parties’ prop. and their rights and obligations re: occupancy
thereof, following rs. used to resolve such disputes:
 First, on sale of commonly owned prop. owner who paid less than his pro rata
share of operating and maint. expenses of prop. must acct. to co-owner who
contributed more than his pro rata share and that true even if former had been out
of possession and latter in possession of prop.;
 Second, fact that one (1) tenant in common occupies prop. and other does not
imposes no obligation on former to make any contribution to latter since all
tenants in common have right to occupy all of prop. and if one (1) chooses not to
do so that does not give him right to impose occupancy charge on other; and
 Third, when on final accounting following sale tenant who been in sole
possession of prop. demands contribution toward operating and maint. expenses
from his co-owner fairness and equity dictate that one seeking that contribution
allow corresponding credit for value of his sole occupancy of premises.

vi. HOLDING
1. Trial ct held that Ps paid 61,892 for operation and maintenance expenses, thus,
mandating that D pay half of that amount.
2. Trial court also found that D spent more labor on the property, compared to Ps. The
value of the labor was $2,000, so D had to pay half minus the 2k.

32
 3. LABOR THEORY- If you put in more labor into the property in the land, the ct
may change the economic value that attaches to the party’s interest in the land even
if that was not the economic amount originally decided.
4. TAKEAWAY: shows prevailing r. that cotenant in possession does not owe
any rent to cotenant out of possession absent ouster
5.

______ LEASING REAL PROPERTY _______

I. LEASING: BEGINNING OF THE TENANCY

A. Leasing Real Property

a. Leasing is transering the right to use
b. Analysis
i. Who are the parties
ii. What is the type of estate?
1. DON’T discuss when it begins
2. How does it end
3. Then, when do it end?
c. Residents/lessee have a lot of property rights as a given, since they do not usually know
their own rights, but commercial leases do not. Commercial leases have to protect its
interests in negotiations.

d. Immutable rules- rules that supersede any contrary provisions in the lease.
e. Default rules- fill in gaps that the parties did not address in the lease.
i. Default rules can be ignored in lease negots, but you cannot evade immutable rules.

B. Creating the Tenancy:

a. Selecting the tenant
b. Landowner has a broad right to exclude, but that broad right is limited by Fair Housing
Act (not covering act) which prohibits exclusion due to discrimination

C. Types of Non freehold Estates:

a. what sets them apart is duration in different forms
i. this will tell you HOW they start and WHEN they end  look at language
ii. 4 types
1. Terms of years tenancy , periodic tenancy, ten at will, ten at sufferance

b. Terms of years tenancy

i. Fixed duration that is agreed upon in advance. Fixed ending point.
ii. How to end: when the duration of the lease states it will end.
1. Once the term ends, the tenant’s possessory right automatically expires,
and the landlord may retake possession of the premises.
2. Not auto renewed.
3. It goes back to the landlord automatically.

33
 iii. This is commonly used in commercial leases and often in residential leases.
iv. Ex. language: gives a number—and end date.
1. Some states will restrict the length.

c. Periodic tenancy
i. Automatically renewed unless the landlord or tenant terminates tenancy by giving
advance notice.
ii. How to end: communication. Giving notice.
iii. “Month to month” leases are usually used in residential leases.
iv. The basic periodic tenancies could be longer than month, but if they are longer, then
the giving notice period may have to be longer.
v. Fixed ending point but automatically renews successfully.
vi. **it is vital to know when the tenancy ends.

d. Tenancy at will
i. No fixed ending point. Rather, it continues “only so long as both the landlord and
tenant desire.”
ii. How to end: you must give notice or one of the automatic situations below.
iii. Tenancy at will arises by implication, without an express agreement.
iv. This terminates automatically if:
1. Either party dies
2. Tenant abandons possession
3. The landlord sells the property.

e. Tenancy at sufferance
i. Created when a person who rightfully took possession of land continues possession
after the right ends. It arises from the occupant’s improper conduct, not from an
agreement.
ii. The continued possession makes the tenant a holdover tenant.
1. Landlords have 2 ways they can deal with this:
a. Treat tenant as a trespasser and evict him (most states prefer
this).
b. Or renew tenant’s tenancy for another term. (But most states
have abolished this).
iii. If they are not a rightful tenant in the first place, then this does not apply.

D. Delivering Possession
a. Keydata v. US
i. This case shows how courts look at lease relationships with a K-law and Prop-law
viewpoint.
ii. Shows the distinction between the right to possession and actual possession.
iii. The English rule (i.e. you need actual possession) is the DEFAULT.
1. Why?
a. It is more protective of the tenant.
b. When you give a right, you should be able to actually, physically
do it.
2. Property law focuses on tangible things.
b. FACTS:

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 i. The US (D), on behalf of NASA, reached an agreement to rent P's computer room
on the first floor. P would surrender possession of the computer room, and D would
lease it (from Wyman).
ii. P had not vacated the agreed upon date, and on the next day D sent P a letter
informing it that D cancelled the lease because the room was not ready for actual
possession. P sued D.
iii. P argued the American Rule- that the landlord has the duty to give the right to
possession but does not have a duty to give actual possession.
1. (the American rule is more efficient, but it does not solve the issue of
actually getting possession, so this efficiency argument could be argued
both ways).
iv. D argued the English Rule- that the landlord has a duty to not only give the right to
possession, but also actual possession. But NASA could not take actual possession
by Keydata.
1. Thus, this was a lawsuit to evict Keydata.
v. Here, the K was silent on the issue of actual possession. Thus, we look to a default
rule.
1. Here, the default rule, was regarding the government rule about how the
fed gov. is governed by a uniform federal law, not by state rules. This
favored the English rule, which the ct relied on.
a. Thus, NASA could rescind and not have to pay.
2. This case shows how courts look at lease relationships with a K-law and
Prop-law viewpoint.

E. Implied Warranty of Habitability

a. ** IMPORTANT TOPIC **
b. This is the most important accomplishment of the landlord-tenant revolution
c. Policy:
i. It protects residential tenants from defective housing conditions.
ii. Lessee’s are the weaker bargainers, in property law, so this protects them.
d. It is implied
i. Even if you lease doesn’t talk about the living conditions there is an implied
warranty that the place is “fit” for leasing
e. It is a warranty
i. Early on, K law was separate from property law  no warrant

f. Wade v. Jobe
i. FACTS
1. Jobe rented from Wade (landlord). When she moved in, there was no hot
water, sewage leak, water in the basement. After many attempts by lessee
to get L to fix, L did not fix. Therefore, Jobe stopped paying rent when
she moved out of the house and L sued to recover unpaid rent.
2. Contractual relationship: L argues rent needs to be paid. We are in a K
and not doing so is a breach.
3. Property law: yes, we are in a K, but these living conditions are not
inhabitable.

35
 ii. HOLDING
1. It is IMPORTANT to distinguish when K law is at play and when
Property law is at play.
2. Here, K law was not enough to protect the tenant, it only protected the
landlord.

iii. RULE
1. Even when the lease has not expressly stated the habitability, there is
always Implied Warranty of Habitability.
a. The standard of what landlords have to deliver as “habitable” is
that the place meets “bare living requirements” (not amenity)
and the premises are “fit for human habitation,”
g. Teller v. McCoy
i. This case shows that one policy reason against Implied Warranty of Habitability:
since the implementation of Implied Warranty of Habitability, L’s will increase rent.

II. TRANSFERRING THE TENANT’S INTEREST

A. Assignment and Sublease

a. Generally the tenant and the landlord are both entitled to transfer their interest to 3 rd
parties, due to property law favoring free alientation
b. We need to know the bundle of rights at all stages
c. A tenant may transfer her rights by an assignment or a sublease
i. **CAREFUL: words you assign to these. Ex. Cannot use “sublessor” when discussing
assignment.

d. Sublease
i. when the T transferee less than his whole interest in the lease to the transferee.
ii. If sublease, NO privity of estate between lessor and the sublessee, BUT there is privity
of estate between lessor and lessor, then a separate privity of estate between lessee
and sublessee.
1. Same thing with the privity of K.

iii. General rule: when the lessee transfers less than their whole estate, there is no
privity of estate between lessor and sublessee.
1. The sublessor retains a reversion interest (future interest).
2. The landlord cannot go after the sublessee for rent.

iv. The bundle of rights is transferred from the tenant to a third party, but only for the
length of the lease.
1. What bundle of rights are transferred?

v. The tenant almost is like a landlord in this situation to the 3rd party.
vi. There is concurrent interest with Lessor and Lessee over the land.
vii. There is ALSO concurrent interest with lessee and sublessee.
viii. BUT when there is a sublease, the lessor and sublessee have concurrent interest and
they are the ones with the bundle of rights, not lessee?

36
 e. Assignment
i. Definition: where the T transfers his whole interest to the transferee
ii. If assignment, then YES privity of estate, but only between lessor and assignee,
not the 2 separate privity of estate
1. The transferee is liable to the lessor  not lessee
2. Landlord can go after assignmee for unpaid rent
iii. When there is an assignment, but. Lessee has right of entry  there is still
assignment bec the lessee is still conveying the whole time
1. If a contract there is right of reentry then it is automatically an
assignment if it still says assignment
iv. Whether a T or transferee has one of these is very important. It affects the
rights and duties of all three parties- the L, T, and transferee.
v. THUS, you have to find out the DURATION of the lease.
vi. To determine between sublease and assignment, ask: did the tenant transfer his
right to possession for all remaining lease term (assignment) or not (sublease).

f. Leasing has…
i. Privity of K- T and L both have rights and duties under K law.
ii. Privity of Estate- Tenant and Lessor have rights and duties, regardless of K law.
iii. For studying and on exam, draw a triangle or diagram to see where they are
liable for K law or Property law.

37
 1. “Running with the land.”
a. We see this in privity of estate and in easement.
b. Running with the land is transferred via Privity of Estate.
c. It means that everything in the land transfers with the land.
i. Things like attorney fees do not attach to the land b/c
that is not property law; it is K law.
ii. But things like rent do transfer with the land.

g. Ernst v. Conditt
i. NOVATION- after an assignment or sublease, the original tenant remains liable to
the landlord for the full performance of the obligations in the lease b/c privity of K
still exists between them. BUT if the landlord releases the tenant through novation,
the lessee and the assignor could be released and are no longer liable for the 3 rd party’s
actions.
1. BUT the 3rd person is still liable for rent!
a. In a sublease, the 3rd party is liable, but the lessor is going to
have to get unpaid rent through lessee. The lessor would just
sue to the sublessee.

B. Silent Consent Clauses

a. 3 ways a L may refuse for tenant to transfer interest:
i. Sole discretion clause
1. The lease might provide that L may refuse consent for any reason
whatsoever in his “sole discretion.”
ii. (default) Reasonableness clause:
1. The lease might provide that L may refuse consent only on a
commercially reasonable basis.
2. For example, L might deny consent if Z has a bad credit record.
3. When the businesses are competing
4. Morality- goes against their religion or drinking policy.
iii. No standard in lease/silent clause:
1. The lease might require L’s consent but contain no standard to guide L’s
decision.

b. Still discussing a transfer problem  the landlord’s ability to control the transfer
c. Possibility of free alienation/transfer is a principle in property law.
i. But: Possibility of restriction of transfer by contract (lease).
ii. Most commercial leases restrict the tenant’s ability to assign or sublease
d. Kendall v. Ernest Pestana, Inc
i. Applies to commercial lease clauses prohibiting assignment or sublease w/out
Landlord’s consent.
ii. Failing to specify standard to guide the landlord’s decision (=silent consent clause) 
Landlord can refuse consent only for a commercially reasonable objection
1. This used to be the minority rule, now it is the modern/majority rule.
2. Why? Considers both property and contract law, reflecting the modern
view that the lease is a hybrid

III. LEASING: ABANDONMENT AND EVICTION

38
 A. Abandonment
1) Tenant has a duty to not abandon the premises
2) Abandonment: tenant vacates the premises w/o justification and stops paying rent
3) Does not terminate the lease

4) Landlord has 3 options

(a) LL can accept surrender
1. LL accepts surrender by retaking property for own use or actions
inconsistent with continued use
2. LL usually has to show that he made reasonable efforts to find new leaser

(b) Sue for rent

(c) Re-let the premises
1. LL
2. re-let the premises to another tenant on the abandoning tenant’s behalf,
without terminating the abandoning tenant’s lease.
3. LL must then apply the new rent to the abandoning tenant’s rent
obligation.
4. In some states, re-letting constitutes acceptance of surrender unless the
landlord notifies the abandoning tenant that the lease will remain in effect.
Additionally, some statutes provide that re-letting residential premises
automatically terminates the abandoned lease.

5) Sommer v. Kridel

B. Eviction
1) RULES :
(i) Landlord can’t terminate a lease for a discriminatory reason b/c that is in
violation of the Fair Housing Act of 1968.
(ii) Relationship between retaliatory eviction v. implied warranty of habitability
(IWH).
a. To meet the standards of IWH, the L may repair the premises then
retaliatory evict the tenant for his/her complaint.

2) L can evict, but they need a reason for why (hence, they have to use lawsuit and
not self-help; Berg v. Wiley) AND it cannot be a retaliatory eviction (Elk Creek).

39
 3) Old viewpoint: Tenant holding term of years tenancy cannot be evicted during the
lease term unless there is material breach of the lease.  need a reason.
VS.
(a) Landlord could evict a periodic tenant (or a tenant at will or at sufferance; i.e.
basically everything BUT term of year tenancy) for any reason or for no reason.
 do not need a reason.

4) Landlord can evict in 2 ways:

(i) Self-help  not usually allowed now
1. LL could retake possession through self held by physically entering
premises and causing tentant to leaves as long as landlord used only
reasonable amount of force
(ii) Landlord sues the tenant.
1. LL could sue to secure judgement which would evict the tenant

5) Elk Creek Mngmt Co. v. Gilbert

1. FACTS: Tenant complained to landlord of possible electrical issue.
Tenant received a 30-day eviction notice that said owner has to do several
repairs including updating electrical. (ex. of the loophole). Tenants
refused to vacate. Landlord sued. Tenants used defense of “retaliatory
eviction.” SC said theres retaliation by the landlord.
(ii) RULE
1. A landlord may not retaliate against a tenant’s good faith complaint
related to tenancy by serving notice to terminate a tenancy.
2. To prove retaliation  a tenant must establish that the landlord served the
notice of terminate because of the tenant’s complaint. “but for”
a. Tenant always required to prove retaliatory intent.
b. No additional proof of injury or intent to hard is required. (i.e. tenant
does not have to harm or cause injury to landlord for it to be
considered retaliation)
(iii) Points for Discussion
1. Right to Exclude- the landlord has the right to exclude, but not to
wrongfully evict.
6) Berg v. Wiley
 RULE: Landlord may recover possession only through litigation,
o not self-help.
o Landlords cannot forcibly enter, unlawfully detain, pick locks, or lock a
tenant out.
 landlord may rightfully use self help to retake leased premises from tenant in
possession without incurring liabiaty for wrongful eviction provided two (2)
conditions met:

40
 Landlord legally entitled to possession such as where tenant holds over
after lease term or where tenant breaches lease containing reentry cl.;
and
 Landlord’s means of reentry peaceable.
 tenant who evicted by landlord may recover damages for wrongful eviction
where landlord either had no right to possession or where means used to
remove tenant forcible or both.

 Self help is never peaceable even when there is no actual violence.



______ LAND USE REGULATION _______

I. BASICS OF ZONING
A. Land Use Regulation
i. Almost all land in U.S. in subject to comprehensive regulation that limits how
may the land may be used
ii. Garden City movement reasoned that gov’t had inherent police power to protect
pub. health safety morals welfare through zoning ls. w. each city divided into
geographical areas (zones) where difference uses permitted w. limits on size and
location of bldgs. in each zone

B. Basics of Zoning
i. A zoning ordinance- law that defines how property in specific geographic zones can be
used.
1. Zoning ordinances specify whether zones can be used for residential or
commercial purposes. May regulate lot size, placement, and height of
structures.

ii. Ordinances apply to future uses.

iii. Village of Euclid v. Amber Realty Co

1. Zoning ordinance can be declared unconstitutional if provisions are clearly
arbitrary and unreasonable, having no substantial relation to the public
health, safety, morals, or general welfare.

C. Zoning Ordinances
i. Ladue Zoning Ordinance

II. NONCONFORMING USES; LIMITS OF LAND USE REGULATION

A. Nonconforming Uses:
i. use of a zone that lawfully exists before a zoning ordinance is adopted (or amended).

41
 ii. It is allowed to remain in operation even though it does not comply with the new
ordinance b/c zoning ordinances regulate the future.
iii. “grandfathered in.”

B. Why?
i. Protecting existing lawful uses
ii. Nudge nonconforming uses to wither away
iii. Furthers the underlying assumption of Euclidean zoning  separation of uses is
desirable.

C. A zoning ordinance can restrict a nonconforming use.

1) It can restrict by making sure the nonconforming use cannot be expanded.
2) However, the nonconforming use can be intensified.
1. Intensification is a more frequent use of something already going on.
2. Ex. doubling the live music night offerings.

E. How to terminate nonconforming use:

a. Nudge towards voluntary end of nonconforming use.
i. Over time, nonconforming use will wither away because
1. (1) it cannot be expanded.
2. (2) major repairs that would extend the duration of the use are
prohibited.

b. Amortization- requiring its termination over a reasonable period of time.

i. Ex. Trip Associates

c. Destruction of underlying property;

d. Terminated if it is a nuisance;
e. Terminated if eminent domain- government takes it.
f. Abandonment of right to use or ceases the use for a period of time.
i. In some states, just discontinuing to use can destroy a nonconforming
use.

F. 3 ways to escape a zoning ordinance:

1. Amendment
1) Most jurisdictions view rezoning under the same standard in
Euclid: “valid unless clear arbitrary ….”
 Ex. state ex. rel Stayanoff.
2) Other jurisdictions use the change/mistake approach that
rezoning is valid if the zones have significantly changed or a
mistake was made.
2. Variances
3. Special exception

i. Trip Associates, Inc. v. Mayor and City Council of Baltimore

1. Introduces expansion v. intensification distinction
2. Discusses termination of nonconforming use:
3. Facts:

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 a. P (property owners) sued D, a mayor and a city council, over a decision
about zoning appeals restricting the number of days per week the owners
could operate a nonconforming use.
4. Since this was just an intensification and not an expansion, the number of days for
adult shows was allowed.

b. The Expansion of Land Use Regulation

i. State ex rel. Stoyanoff v. Berkely

Zoning Amendments: 825

Smith v. City of Little Rock

 Illustrates how zoning ordinances have evolved to serve new purposes like a commercial
business.
 Facts: business property rezoned to be a Wendy’s restaurant.
o Court said this was fine b/c it met the Euclid standard- it was not arbitrary or
capricious.

Aesthetic regulation and zoning

o Cities and counties have an inherent police power to regulate aesthetics.

State ex rel. Stoyanoff v. Berkeley

 Example of aesthetic regulation and zoning.

 Illustrates how zoning ordinances have evolved to serve new purposes of aesthetics.
 Applies to residences and building, and all new uses, within a zoned area.
o The Euclidian approach of looking at a zoned area as a whole prevails.
 Ladue ordinances established “appropriate standard of beauty and conformity”
o Excluded post-modern architectural styles
o Ps argued that the ordinances are “unconstitutional as being an unreasonable
and arbitrary exercise of the police power” (i.e. not meeting Euclid standard).
 Holding: the denial of the permit was allowed. Ordinance upheld.
o Why?
 The aesthetic ordinance served a non-aesthetic purposes for the general
welfare of the citizens there.
 by protecting “property values in the area”
 by promoting the “comfort and happiness of the residents”
Hypo:

 (3) X owns a run-down office building in Ladue. Z plans to construct a modern office
building next door; X worries that her tenants will move to Z’s building, lowering the

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 value of her building. Can Ladue enact a zoning ordinance that requires each new office
building to have an old-looking, run-down façade?
o No, Ladue cannot enact a zoning ordinance for the purpose of benefiting one
particular owner. This would be spot zoning, which is NOT allowed.
o Also, it is hard to argue that a new building would be aesthetically displeasing.

c. Zoning Amendments

d. New Approaches to Land Use Regulation

______ EMINENT DOMAIN_______

A. Constitutional Takings Clause
a. U.S. Constitution, Amendment V: “…nor shall private property be taken for public use,
without just compensation.”
b. Constitution does not give Congress the power to take, just says it requires just compensation.
c. Clear the government has the power to take though.

B. Eminent Domain
a. This is when the government has the power to take the property of a citizen who does not
voluntarily sell their property
b. Federal, state, and local gov can dot his
c. This is a physical taking

d. Two limits to eminent domain as seen in Takings Clause of 5th Amnd

i. It must be used for public use.
1. Narrow holding:
a. public use includes use by the public, like a highway, or use of
government employees, like the military.
2. Broad holding:
a. there is some public benefit or purpose.

ii. The private owner must receive just compensation

C. Defining Public Use

a. Public use means “public purpose”
b. RR, highways, and parks all have public purposes even when they are owned by private
parties.

c. Hawaii Housing Authority v. Midkiff

i. Defining public use
ii. The government was allowed to take condemned property and sell it to private
owners, so that the area could be re-done and kept up better.
1. This was already allowed in Berman v. Parker.
iii. The court used the broad approach  there was some public benefit.
1. If government rationally could have believed that legislation promotes of
public health, safety or welfare  purpose is legitimate and satisfies
constitutional requirements.

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D. Scope of Public Use
a. Kelo v. City of New London
i. Issue: can a city condemn a home, and the owner still occupies it, and transfer it to a
private developer in order to facilitate public use  city’s economic redevelopment
plan?
ii. Holding: yes.
1. The city could condemn a home that a person was already in if it was
rationally related to the public use.
2. Here, it was related to the public use; thus, taking allowed.
iii. Dissent: worries that this allows governments to condemn a person’s land just
because another person can make better use of it.
iv.

______ TAKINGS_______
I. NOTES
 contrast to physical taking, there is regulatory taking, which is functionally equivalent to seizing
it.
o However, here, the taking is not physical, but rather a regulation on an owner’s rights that
is so restricting.

 Traditionally, only physical seizure/taking of the land got compensation.

o Nowadays, regulatory taking can also get compensation (Pennsylvania Coal; Penn
Central)
 The modern approach to determine whether regulatory taking exists: Balancing test from Penn
Central.

II. CASES
A. Pennsylvania Coal Co. v. Mahon
1) Facts:
(a) Kohler Act was passed and it prohibited mining that would cause sinking of
homes and surfaces near residential properties.
(b) The Pennsylvania Coal Co. had both contract and property rights to the land
underneath the property and was going to use it to mine underneath homes.
(c) HOWEVER, the Kohler Act rendered Penn Coal’s deed useless.

ii) Held:
(a) This was an unconstitutional taking.
(b) The Kohler Act went beyond a regulation and became a taking.
(c) Thus, they needed to be compensated for this heavy regulation.
iii) Rule (not used anymore): Limitations on the use of land through the police power will
be considered a taking under the eminent domain power when diminution in value of the
property reaches a certain magnitude, which depends upon the particular facts.

B. Penn Central

1) Shows the modern test to assess if a regulatory taking has occurred.

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 2) Example of regulation, but no taking.
3) FACTS:
(a) Penn Central (D) owned the Grand Central Terminal, which was designated by
application of NY’s Landmarks Preservation Law to be a landmark.
(b) D entered into a renewable 50-year lease w/ UGP Properties, under which UGP
agreed to construct a multistory office building on top of the terminal.
(c) The plans for the new office building were submitted to the Commission for
approval, which were denied.

C. BALANCING TEST: In deciding whether a particular government action has affected a

taking, look to:
1) The economic impact of the regulation on the claimant.
(i) Diminished value, alone, as the result of rezoning did not amount to a
taking (this is different than Pennsylvania Coal).
(ii) Thus, the diminished value of the terminal as the result of the Landmarks Law is
not a taking.
2) The extent to which the regulation has interfered w/ distinct investment-backed
expectations.
(i) Here, the interference with D’s property was not such that interfered with the
use of the terminal.  no taking.
(ii) They have not been denied all use of their airspace  no taking.
3) The character of the governmental action.
(i) The impact of the regulation on D’s parcel was insufficient to require the
government to institute eminent domain proceedings.
D. Held: NO taking occurred.

______ PROPERTY AND ENVIRONMENTAL LAW_______

Property and Ecology: 873-877

Just v. Marinette County

B. Property and Climate Change

Juliana v. US

TEST

o Be thorough  act like you are describing these concepts as if you have never heard of
them
o What are ISSUE – RULE – CASES – APPLICATION
o If there is relevant case law  YOU MUST USE IT
 Not a mere reference, analyze or distinguish
o If you think there is more than one answer  tell her why

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 o But usually there will only be one answer
o There are not many questions on the exam where you explore multiple
possibilities
o

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