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Property Outline Table of Contents TOC Tips CHAP I A. Conceptions of Property: 1) Right to thing: Jacque 2) Bundle: Hinman 3) Philosophical Perspectives B. Trespass/Nuisance 1) Nuisance 2) Exclusion v. Governance 3) Coase Theorem C. Property and Equity 1) Use of equity: Injunction/Bldg Encroach 2) Property Rules and Liability Rules (Calabresi) D. Restitution 1) Mistaken Improver CHAP 2: Original Acquisition 1) First Possession: wild animals/open access/abandoned property 2) Discovery 3) Creation: News/Publicity/Patent 4) Accession: Doctrine/Increase/ad coelum/accretion/fixtures 5) Adverse Possession: Exclusive/O & N/Adverse/Continuous

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CHAP 3: Values subject to ownership 15 1) Personhood: Human body/artists’s rts/cultural patrimony B. Academic Perspectives: Demsetz internalizing/Radin personhood/mkt inalienability16 2) Public Rights: Navigation Servitude/Public Trust/Custom/Easement/Commons17 3) Electronic Communication: Radio Waves/Internet/Trademark 19 CHAP 4: Owner Sovereignty and Limits 20 A. Protecting Right to Exclude 1) Criminal Laws: Larceny/Trespass 2) Civil Actions: Trespass/Ejectment/Nuisance-Replevin/Conversion/Trespass21 tochattel 3) Self Help B. Exceptions to right to exclude: Necessity/Custom/Public Accomodation 22 Laws/Antidiscrimination Laws/Racist trespass C. Other Powers of Sovereign owner: Licenses/Bailments/Abandon/Destroy/Transfer24


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CHAP 5: Forms of Ownership 28 A. Intro B. Divisions by Time: Present Interests: Fee Simple/Life Estate/Defeasible Fees Future Interests: Grantor/Grantee/Vesting C. Maintaining the System: Conservation of Estates/Estate Planning/Numerus Claus30 D. Mediating Conflicts over Time: Waste/Valuation/Restraints on alienation/RAP 32 E. Co-ownership and Mediating Conflicts b/w Co-owners: TIC/JT/TBTE/CP 35 Legal Remedies: Partition/C & A/Severance of JT/Bank Accts F. Marital Interests: Distribution in case 38 CHAP 6: Entity Property A. Possessory Interests 1) Leases: Types/Indep Covenants/Dep/ Covenants/Transfers/Assignment/Sublease/Rent Control 2) COOPs/Condos B. Nonpossessory Interests: Trusts CHAP 9: Law of Neighbors B. Servitudes: 1) Easements 2) Covenants 3) Equitable Servitudes C. Zoning and Other Land Use Regulation 1) Zoning: Goals/Policy/Exclusionary/Religious Land Use CHAP 12: Takings A. Eminent Domain 1) Intro 2) Public Use Requirement 3) “Taking” 4) Regulatory Takings 5) Just Compensation 6) Denominator Problem 7) Exactions Problem: conditions imposed 8) Temporary Takings 9) Litigating Takings Cases 39

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Tips: • Do not only write simple answer • Broaden possible options, what could parties ask for and what could courts do, even if they won’t work out. • Explain options to provide hooks for all you know on topic. • Say we have a number of options and can bring in policy and doctrine arguments for each • If think something is essential to assume, say “assuming that ___”. 2

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Apply logic to new situations Speak as if you know you’re right. Be certain of answers The best outlines try to organize the material around such arguments, justifications for a body of law like AP, and efforts to change the law, as well as the obvious doctrinal distinctions that we need in order to grasp the material (like the requirements of open possession, claim or right, etc.). -do not have to cite cases but can explicitly talk about cases to compare or inform policy argument on short questions Major Issues in the course: Which institution should resolve: legislature or judiciary What is the bundle of rights in property? Rule like fashion or case by case basis Trespass/Nuisance Exclusion/Governance Parallel issues from the case law Fixed rule/Flexible standards Transaction costs Enforceability Coasean argument Unintended consequences Ex Ante/Post Ante Property/Liability Rules Open Access problems Numerus Clausus Policy Question: Key will be to structure your answer. You can do this according to what you view as important themes/problems from the casebook, or by each clause in the proposed policy in terms of arguments for and against and with a sense of whether the analysis is different for joint tenants or tenants in common CHAPTER I What is Property? A. Two Conceptions of Property 1) A right to a thing, good against the world (essentialist, exclusivity i) Exclusion Theory: management of resources are delegated to the owner (a) Right to privacy (b) Protection (to prevent self help) (c) Expectation (people can have most efficient use of their land) (d) Jacque v. Steenberg Homes, Inc: Absolutist view of right to exclude, not allowed to cross another’s property to deliver mobile home. Right to exclude is essential stick in bundle of property rights and nominal damages are not enough to deter so need punitive (100,000). Considerations: self-help avoidance, history with adverse possession experience, audacity of Steenberg. Good example of Property Rules (Calabresi) with entitlement given to plaintiff.


com (e) Can lead to efficient outcome (Coase) if parties willing to negotiate in good faith. must have dominion (or capability) over property to have ownership rights. Penner. Requirement of actual harm (Jacques) 3. Trespass/Nuisance Divide: Trespass requires physical displacement/interest in the land. legal theory and economics ii. Considerations: Reasons to avoid literal reading of ad coelum. tho each is problematic 1. Pacific Air Transport: Court allows planes to go above property. Landowner can only sue for trespass of land they’re in possession of. Restatements definition: Legal relations between person with respect to a thing. Public space: no surface owner has any claim of private prop rts 3) Conceptions of Property – Philosophical Perspectives (a) J. see also easement. tenant). while nuisance protects use and enjoyment of land against more intangible problems. 1) Nuisance (a) Nontrespassory invasion that diminishes use and enjoyment of someone’s land 4 . Otherwise absurd results.Downloaded From OutlineDepot. party to the contract iii. limitation of the right to exclude (trespass. Implied license: by also having benefit from air travel (takings?. Idea of Property in Law i. Exclusion thesis: right to property is right to exclude others fro things which is grounded by the interest we have in the use of things (not just the use. Ad coelum is not taken literally. B. nor just the exclusion) (b) Tom Grey. asserted dominion over. Disintegration of Property i. In personam: bind only specific individuals. In rem: rights against the world ii.E. 2) A bundle of rights. what if somebody doesn’t use) 4. Discourse about property has fragmented into a set of discontinuous usages. Public and private restrictions to land use. bundle of rights iii. (but owner of land is assumed to be in “constructive” possession of land even not under his control) 2. Meanings of property in law that cling to their origin in the thingownership conception are integrated least successfully into general doctrinal framework of law. with content that varies according to content and policy choices (skeptical) i) Governance Theory: courts authorize what exactly is allowed to be done on the property (a) Hinman v.

recklessness. Invasion test: does one “invade” the other (here they both do) iv. (b) Substantial and unreasonable interference with private use and enjoyment of another’s land. Reasonablenss test. 2) Exclusion and Governance i) Two different strategies for resolving disputes about scarce resource use (a) Exclusion strategy: decisions about use are delegated to owner who acts as manager of resource. Considerations: i. Includes intentional. could decide whatever they wanted to do with their land. reach efficient result b/c of bargaining (g) Parties take harmful action into effect b/c factor in opportunity cost of potential payoff (h) Legal rights/entitlements damage the efficiency (i) So do bargaining problems: holdout/bilateral monopoly (only one entity can provide the need)/assembly problems (large number of owners) 5 . Temporal issue: who came first? vi. Balance of interests test (gravity of harm vs. danger. etc) 3) The Coase Theorem i) Ronald Coase. light waves): nuisance (e) Noninvasive spite fence: nuisance (f) Hendricks v. (Societal norms. sound. negligent or reckless. Example of governance: parties perceive that their land can be used either for groundwater extraction or sewage disposal but likely cannot be used for both. or results in abnormally dangerous conditions or activities in inappropriate place (c) Intrusion with large object able to physically displace plaintiff (home. law allows owner to repel any intrusions without his consent (b) Governance strategy: Focuses on particular uses of resources and makes particular rules about permitted and prohibited uses.Downloaded From OutlineDepot. Stalnaker: Claim that another’s water well position is nuisance b/c cannot build septic tank due to distance regulations. utility of offending conduct): is water well as essential as septic tank? iii. unreasonable. Neighborliness vii. person. If exclusion. malice ii. government regs. harm caused. Normal use test: which use is more normal? v. Problem of Social Cost (c) An argument for how judges should decide nuisance issues (d) There is reciprocity in damages between parties (e) to avoid harm on B would be to harm A (f) Without transaction costs. contracts. vehicle): trespass (d) Invasion by smaller objects (gas. To implement this authority.

since bargaining will not work. Considerations: custom. Equity affords injunctive relief against series of trespasses part of single course of conduct which seriously interferes with right to peaceful enjoyment of property iii. ii. Property and Equity 1) Traditional maxim of equity is that property rights enjoy special protection in courts of equity. implicit agreement. could force removal of encroachment. plaintiff demanded nothing but complete destruction of the wall. such as granting specific performance to enforce contract for sale of real property. Dogs from Hunt club kept overrunning property and causing damage ii. equity requirements. plaintiffs chose removal. No adequate remedy at law (b) Repeated Trespasses: possible reason for equity/injunction (Baker v. Offer to treat as permanent trespass with compensation or removal. habit evidence (c) Building Encroachments i. Strict view of ad 6 . Stalnaker could have used alternative solutions/compromises) C. Howard County Hunt) i. If building encroachment has not existed for period of statute of (j) Judges should be wary of placing entitlement because transaction costs do exist so if entitlement is inefficient. CL rule: dogs can go wherever they want unless: owner has power to prevent or owner takes them to prohibited area and knows it will happen v. it will stay there ii) Resolving Property Disputes by Contract (a) Contractual modifications (Coasean bargains) may be cheaper and more efficient than litigation (Hendricks v. no AP claim. Move into equity from trespass/damages b/c of • repeated trespass • cannot assess damages iv. Under CL. when violated pay damages or held in contempt (a) Conditions for equity: i. Pile v. cannot make bargain with everybody who would trespass vi. even though breach of contract ordinary results only in damages award i) Injunction: court order to perform act or refrain from act. Clean hands ii. Pedrick: Unintentional 1-2 inch building encroachment. Court enforced injunction and split costs because of plaintiff intransigence? . No possibility of Coase bargain because in rem rights w/ respect to world (assembly problems).Downloaded From OutlineDepot.

Least amount of state intervention. Liability Rules and Inalienability: One view of the Cathedral (d) Entitlement: law decides which party will prevail. states then decide the manner in which the entitlements are protected and whether an individual can sell or trade the entitlement. or court can give option of paying encroacher the value of the house or selling the encroacher the land at fair market coelum. (e) Property rule: Entitlement cannot be taken without holder’s consent. Ex: eminent domain. just are indicative of it. defendant has no right at law or in equity to occupy land that does not belong to him iii. Generally. Property Rules. fair mkt value. Ex: intoxicated sale of house 7 . discourages doing it on your own. May allow to remain if pays damages (Golden Press).Downloaded From OutlineDepot. Modern law: sometimes good faith improver gets some relief. no subjective value valued. determined by court. • Considerations: encroachment magnitude. (g) Inalienable: transfer is not permitted between willing buyer and willing seller. Ex: Buying/selling house (f) Liability rule: someone may take away initial entitlement if willing to pay objectively determined value for it. Remedial orders do not define the appropriate degree of protection. An intentional encroacher must remove the encroachment if the neighbor demands 2) Property Rules and Liability Rules i) Calabresi & Melamded. liability rules and inalienable entitlements. plaintiff’s affected use. courts today would deny injunctive relief and award only damages v. cost of removal. damage. But court determined costs not always reliable. Three types of entitlement protections: property rules. plaintiff’s malice? iv. or court gives to landowner and he must pay value to encroacher.

intended so that people think before they build (b) Producers Lumber & Supply Co.Downloaded From OutlineDepot. Ort’s good faith is negated by his malicious destruction 8 . became fixture of the property (accession). v. Here. the rule is that if someone erected a structure on someone else’s property. 61 Rules have advantages and disadvantages ii) The Ex Ante/Ex Post Problem (a) Ex ante: analysis before conflict arises (b) Ex Post: analysis afterwards (c) Ex Post may produce much lower maximum joint benefit (once the building goes up) D. Give entitlement to the party who the non-efficiency factors favor. i. Restitution 1) a) Enrichment of defendant b) at expense of plaintiff c) under circumstances that are unjust (a) Not bargained for benefit and harms: contracts (b) Not bargained for harms: torts (c) Not bargained for benefits: restitution i) Mistaken Improver (a) Traditionally. Trespasser has remedies if built in good faith iii. Unclear if high transaction costs. p. go with property rule and they can sort it out. Olney Building Co. If transaction costs Property Rule Liability Rule Plaintiff Assignment of Entitlement Defendant Rule 1 Pile: Kept/Injunct ion Rule 3 Hinman: airplanes can fly they would need consent to stop Rule 2 Golden Press: Kept/Damages Rule 4 Plaintiff can force return for $ (factory can continue polluting but not if P pays $) Rule 4: Polluter can keep polluting and plaintiff can stop him if he pays money. Orts ordered destruction of building he unintentionally built on land belong to plaintiff ii.

Keeble v. Anticommons and Semicommons 9 . no action • No trespass b/c not on land. trap. Hickeringill: Defendant shot gun at plaintiff’s decoy pond. kill: when do you have possession/ownership? Majority says must wound and not abandon. rewarding of initiative/success). pursuit. But see rationale soli (e) Generally. Post: Property of ferae naturae is acquired by occupancy only. Ghen v. One who hinders another in his trade is liable for an action. Hay for custom requirements) (f) Cannot hinder another in his trade by scaring off animals. Court gave defendant right to the ducks in his decoy pond under the protection of his livelihood. If he does. Rich: custom to shoot whale with mark and finder must return has been existence for long time and without would be no incentive to whale hunt. Accession. What amounts to occupancy? Proximity rules: Spot. But if damage caused by same employment. would be nuisance today • Considerations: action brought for disturbance not the loss of fowl. this business is good for society ii) Open Access and the Commons Eggertsson. it’s ok even though CL says otherwise (see State of Oregon ex rel. Improver is never authorized to go upon land of another. Creation. must pay landowner for such waste (value of building) v. has right to remove his property and pay any damages caused to P’s land ii) Origins and Basis of Restitution CHAPTER II Original Acquisition -Five general principles to establish ownership other than through voluntary conveyance from previous owner -First possession. Dissent says pursuit with reasonable chance of capture. Advantages to each choice (protection of investment. scaring off wildfowl intentionally. and Adverse Possession 1) First Possession Rule of Capture: first person to take possession of a thing owns it i) Wild Animals (a) Must be captured to be owned (b) Mere chase is not enough (c) Pierson v. wound.Downloaded From OutlineDepot. without his knowledge and demolish improvements. Thornton v. captor must acquire physical control over animal absent custom. As long as does not infringe on others’ rights or go against maritime law. Open Access versus Common Property Commons. Discovery. Dissent argues that as accidental improver. Unfair competition will discourage iv. What notice must one give? (d) An owner of land does not automatically own the wild animals on the land. close in.

Hiyashi: Popov dropped and Hiyashi recovered.” Johnson v. leading to inefficiency (d) Solution: contracting among parties for regulations. Demand: excessive withdrawal can deplete to zero iii. Indians’ sale of land invalid. control. Eads v. (b) Land Grants from the Federal Public Domain How the land was dispersed  Land Ordinance of 1785: created townships according to guidelines  Squatter problems  Homestead act of 1862: any citizen could claim 160 acres (c) The Mining Camps 10 . Supply and demand effects i. coop. to give notice of possession. condos. External effects: if people not responsible for all costs and benefits that follow their actions. prevents rights to larger resource or good because fosters stability iii) Other Applications of First Possession (a) Finder must (like wild animal capture) acquire physical control over the object and have intent to assume dominion over it. Brazelton: E prevails b/c B has shown only intent to take possession but has not shown sufficient acts of physical control. private owner or state regulatory access (landlord. judge ruled they divide value b/c once the ball in Popov’s mitt. Must have placed boat over wreck with the means to raise it. custom. even though could not prove est’d possession and did not have control. Natives had status of occupants but not title.Downloaded From OutlineDepot. M’Intosh: Since rights of Indians were impaired with European dominion (right to dominion supersedes right of occupancy). pre-possessory interest 2) Discovery i) Discovery of Land (a) When faced with conflicting claims to single piece of property. (b) Home run baseballs: Popov v. Supply: no incentive to invest or maintain resource since cannot exclude others from benefits ii. corporation) (e) Semicommons: somewhere in between the two extremes (doctrine of fair use in copyrights) (f) Anticommons: too much exclusion. had exclusive pre-possessory interest when mob interfered. recreate “chains of title. watch average values instead of marginal (a) Open access: (Rule of capture/fishing) access is open to all members of particular community or jurisdiction (b) Common Property: complex structure that involves rules and enforcement mechanism (c) Open access problems when independent actors have incentive and ability to withdraw at will. Consider: intent.

so different from tangible goods (a) Use of information by one consumer does not diminish the use by another. “Flash of creative genius” but this changed as recognition of how r & d occurs 11 .Downloaded From OutlineDepot. Press: INS copied news from AP for (d) Miners concerned about absence of legal rules to assign ownership of valuable mineral land • Formed over 600 mining camp governments in Far West to devise local rules for recognizing and enforcing private mineral rights • These rules later incorporated into state legislation • Expected aggregate gains were large and most of the contracting parties expected to share in those rights Gary D. Unfair competition. ii) Publicity: (a) Used to be a name or a likeness. A. (c) Need to be more than first (as in discovery). so a “nonrival” good. Cannot be “obvious”. unauthorized use of an attribute of Midler’s identity (publicity) in Midler v. should not reap what another has sown (Locke). iii) Patent: (a) Shows boundaries of time limited right to recover investment. (b) But can hurt the public if applied too broadly (satire. (b) Primary reason for creating property rights in information is to provide incentives for producing more of it. not to assure that it is allocated efficiently among potential users of it (c) Labor can assert property right. does not give any positive rights which come from CL. How do we define “creation”? i) News requires large investment to produce but copying and reproducing is zero. free speech). Ford Motor Company. Libecap. Peterson Manufacturing Co. Contracting for Property Rights • 3) Creation: Recognition of property by creation is to reward labor. (b) Balance between protecting creativity and not creating monopolies/stifling creativity. No right in uncopyrighted news after publication but quasi-property with limitations to others in the business (not against the world). Assoc.E. actual novelty required.: • Plaintiff showed demo of new high chair and they decline to use but produce own version • Cannot have patent protection for something “obvious”this standard changes with time though • Used to be needed. International News Service v. Trenton Industries v. The celebrity’s labor in creating a persona of value is protected against another’s using it for profit. but courts have expanded this to vague notion of celebrity’s persona.

Rural Telephone Service) 4) Principle of Accession i) Used to establish title to property. Economics of Rights. Inc. Blackstone) • Accession b/c value of labor has swallowed up and rendered insignificant the value of original materials • Considerations for doctrine of accession: Mental state of improver. Should award things that are unowned. v. (b) Wetherbee v. unless A’s efforts have sufficiently increased its value or complete change of chattel to make it unfair to award the final product to B. “newness” requirement is “originality”. who should make satisfaction to former owner for materials converted (J. degree of transformation. Carruth v. Partus sequitur ventrem (offspring follow the mother). product belongs to new operator. degree of value added iv) Increase: (a) Animal offspring belong to owner of mother. A must have acted in good faith. (a) Where A adds labor to B’s raw material. Easterling: Calves born while on another’s property court ruled belong to cow’s owner v) Explaining the Principle of Accession *David Hume. each which shares common features: ownership of some unclaimed or contested resource is assigned to owner of some other resource that has particularly prominent relationship to the unclaimed or contested resource iii) Doctrine of Accession: narrower common-law doctrine that is part of larger family of doctrines – when someone mistakenly takes up physical object that belongs to someone else and transforms it through labor and new materials into fundamentally different object. and significant labor put into it. to the owner of the most prominent thing to which ownership has been established ii) Principle of Accession: family of doctrines. Cooperation and Welfare vi) Ad Coelum Rule • 12 . Supreme Ct said that names and numbers in telephone book cannot be copyrighted b/c not “original” enough (Feist Publications. Green: Wetherbee cut down trees with permission and fashioned into barrel hoops (huge increase in $).Downloaded From OutlineDepot. the courts usually award the final product to the owner of the raw material (B). Turns out was somebody else’s land and they want to keep the hoops (replevin) • When trespass is in good faith. Treatise of Human Nature *Robert Equity in agreement can be implied by showing item to party before patented (d) In copyright.

Strain sued arguing they were fixtures. Did his labor add significant value to underground parts so they should become part of his property (accession)? Court found that ad coelum applies so cave does not belong to the discoverer (who is trespasser in the earth below neighbor’s lot). Reason to apply rule to give incentive to produce the resource. or accession by labor (b) Edwards v. Some characterize them as analogous to wild animals. barred from asserting right to exclude and 13 . although originally moveable chattel. Iowa. (d) Accretion considered accession because small deposits of sand are absorbed into more significant large land viii) Fixtures (a) A thing which. hot water heater). Lower transaction costs than surveying and profit sharing among many (a) Accession by ad coelum: whoever owns surface owns incremental values below as surface is most prominent pre-assigned property. Sims: Valuable cave underground with entrance on his property.Downloaded From OutlineDepot. must judge based on nature of article affixed. vii) Accretion (a) Accretion: gradual process (changes boundary of the river) (b) Avulsion: sudden change in stream path (does not change boundary) (c) In Nebraska v. objectively shows intent to improve the realty. some things considered chattel have become fixtures (bathtubs. question whether accretion or avulsion as the river has characteristics of both. or association in use with land. (d) Modern trend is to be liberal in permitting tenant to remove any chattel he installs on leased premises. is by reason of its annexation to. may be more efficient and reward exploration. Green: Greens sold house but took many things when moving out. giving ownership to owner of entrance. (d) Underground resources: Rule of capture has been applied to oil and gas by courts. regarded as part of the land (b) Can be default rule or doctrine of accession because can acquire objects by owning land that originally were personal property belonging to someone else who had no intention to make a voluntary conveyance (c) Strain v. which might wander from A’s property to B’s (even if drained from neighbor. (c) If capture rule was used. as long as substantial damage not caused 5) Adverse Possession i) Owner sits on right to exclude. Court says as times change. Cannot consider secret intention of sellers. and statute of limitations for challenging original unlawful entry expires.

reward productivity (c) Personal relationship of AP to the land (d) Reliance Issue (e) Reduces costs of investigation who really has title iv) Requirements for AP: (a) Actual entry giving exclusive possession i. Kunto). fencing. without permission of owner iii. Majority view: actions of possessor must look like claims of new title springs up in adverse possessor. Must constitute reasonable notice to owner so owner can defend his rights ii. building. sued in trespass. Color of title: Claim founded on written instrument (deed. AP’er cannot abandon iv. Continuous when made without a break in the essential attitude of mind required for adverse use. appropriate to land involved iii. AP’er has to file quiet title action against former owner iii) Justification: (a) Gatekeeper: responsibility to be gatekeepers of land (b) Avoid disrepair. granted permission. Must hold adversely to the owner under a claim of right (without owner’s consent) ii. i. iii. Not required to be AP in most states (d) Continuous. Retroactive ownership rights (may have to pay taxes) ii) To acquire legal title. uninterrupted possession: degree of occupancy and use that the average owner would make of the particular type of property. Minority view: AP’er must have bona fide or good faith belief he has title (Carpenter v.Downloaded From OutlineDepot. Kunto) 2) Must be privity of estate b/w AP’ers: Voluntary transfer by estate in land or physical possession 14 . Sometimes ok even with intervals of disuse. Purpose: to give owner notice of AP and not just trespasses ii. Ruperto: knew she did not have title and held not to be AP ) iv. will) that unknown to claimant. Look like typical acts of owner. E. Exclusive possession: cannot share possession with owner nor public generally (b) Open and Notorious i. farming. is defective or invalid. Tacking by successive AP’ers: 1) Can tack on previous periods of AP by predecessors in interest to establish continuous possession (Howard v.g. Seasonal use: Use during summer home during summer only is continuous use (Howard v. Burnet) (c) Adverse and under a claim of right i. paid taxes (Ewing v.

etc. Open ended adverse possession problem vi) Disabilities State statutes slow statue of limitations for owners suffering from certain narrow classes of disabilities (under age. legally incompetent. Sequential Possession Issues G. But if AP’er entered before life estate started. vii) Future Interests: Statute of limitations does not run against remainder existing at the time of entry by an AP’er b/c the holder of the remainder has no right to eject the adverse possessor from possession.). cannot use AP against crown. Same requirements as land but period is shorter. Not poverty. perhaps for scientific purposes. Excludes paired organ donor. with non-replenishable parts. (c) Dead bodies as property: Next of kin have exclusive right to possess bodies of deceased family members. NY: statute of limitations starts when owner knows who has the goods and makes demand for return that’s rejected (Songbyrd: possession of recordings) ii. Garbar: blood plasma is transferable property (replenishable parts. 39 Gilberts) viii) Chattels: Can take AP to chattels just like land. would never go to remainder (see p. But one could argue that it’s personhood and a body cannot be “owned”. and never gained possession.Downloaded From OutlineDepot. insane. they acquired original ownership 15 . then prescriptive easement v) Adverse Possession against the Government Under CL. even though inalienable. Sathyavaglswaran). this followed to US Government. Moore v. Majority: S of L starts when owner should reasonably know where stolen goods are ( but runs as long as owner continues to use due diligence in looking for them) F. more restrictive) (b) National Organ Transfer Act: prohibits sale/transfer interstate commerce organs for valuable consideration. Regents of the Univ. (a) Difference: Open and notorious requirement i. creating property (e) If owner fails to prevent use as opposed to possession. (Newman v. Competing Original Acquisition Principles CHAPTER III Values Subject to Ownership 1) Personhood • Certain interests are inappropriate for treatment as property because they are too closely connected to personhood (people. (d) Concern about making body parts property that could be sold. peonage) • Two questions: 1) who has decision making authority over the interests and 2) Can the government restrict that authority i) Property and the Human Body (a) Body parts: US v. of CA: Man does not have property right in his spleen following removal by doctors (abandonment?) who made valuable patented cell line.

Considerations: could be property for hospital but not Moore. Have ongoing historical. Toward a Theory of Property Rights  Economic terms why and when property rights emerge in resources that previously were regarded as not being subject to ownership  Property rights develop to internalize externalities when the gains of internalization become larger than the costs of internalization  For example. abandonment (like hair at salon). Academic Perspectives on Domain of Property What values should be subject to property rights? Harold Demsetz.Downloaded From OutlineDepot. (b) Sometimes legislation protects physical defacement or alteration of a work of fine art for certain amount of time (Moakley v. cultural or traditional importance ii. before the fur trade the Indians did not have property conceptions  The rise in prices of furs was a gain that resulted in internalizing the costs of monitoring property rights Margaret Jane Radin.e. medical progress. I. Superior Court: Interest was in the nature of ownership (interim category of property/quasi property). Argument that cell line was not Moore’s property b/c it was factually and legally distinct from the cells taken from Moore’s body. Issue of artist retention of control over use to which creations are put by future owners. human privacy (e) Sperm deposited in sperm bank was found to be property of donor and could be devised by will. Eastwick) iii) Cultural Patrimony (a) Personhood interests implicated when cultural artifacts taken from communities in which they have particular significance. more towards property ii) Artists’ Moral Rights (a) Personhood rights implicated when individuals create things that are expressions of their beliefs and experiences (accession/creation?). Hecht v. Corrow: even when Indians sold the item still illegal under act) (b) To be considered “cultural patrimony” object must: i. However. Be considered inalienable by the tribe culture (good indication is if communally owned) (accession?). (f) Penner’s separation thesis: only items thought of as separate from their owners can be “things” and hence objects of property (spleens and sperms after separation) (g) Trend in CA away from personhood. Property and Personhood Anti-Commodification and Inalienability Rules 16 . not all property is alienable. Native American Graves Protection and Repatriation Act (US v.

Test is whether use of airspace harms the surface owner. Federal navigation servitude on all waters of US that are navigable. may be different if waters subject to ebb and flow of tides or not (b) Navigable Airspace i. related to Commerce Clause iii. Airspace above safe flying altitude iii. resting on some moral requirement that it not exist (may create and expose wealth and class-based contingencies for things critical to life (healthcare))  Domino theory: slippery slope. allowance of commodified version of thing will affect all and commodity 2) Public Rights Things too public to be parceled out into private ownership.Downloaded From OutlineDepot. individual or corp acting under authority of state law can obstruct or interfere with public’s right to free use of waterways for Moral basis for regarding certain things as inappropriate subjects for treatment as property Two types of property: Fungible property (held purely instrumentally) and Personal property (bound up with a person) Rights afforded to property go on spectrum of somewhere between personal and fungible (but can go to extremes like fetishism) As things move towards more personal should have stronger entitlement/protection. harder to take away. In US v. body parts. Title to submerged lands subject to state law. English framework of these rights exported to US. would be destructive to personhood (slavery. Causby. Market-Inalienability  Three possible methods of justifying market-inalienability: prophylactic argument. Supreme Court held that federal control principles of navigable waterways extends to navigable airspace ii. Inherently public and remain accessible only on equal terms to all members of the community i) Navigation Servitude (a) Navigable Waters i. Supreme Court expanded from waters subject to ebb and flow of tides to all navigable waters to federal government ii. market-inalienability is prohibition of the commodified version. assimilation to prohibition. and domino theory  Prophylactic: people should not be allowed to sell things that are too personal. broader liberty of control But you can’t go too far or you get fetishism Things too personal cannot be considered property at all (personhood) Radin. Supreme Court held that planes flying low over a 17 . sexual services)  Assimilation to prohibition: commodified object is different from “same” thing noncommodified and embedded in person relationships. No state gov’t.

not trespass law (f) Easement by prescription to the public: State of Oregon ex rel. question whether federal land held in public trust. Trial court found public had easement by prescription for recreational purposes. Private parties may be liable in nuisance if substantial interference via air that is unreasonable as measured by sensibilities of an average person (not an uncommon use of land where more harmed than average person) ii) Public Trust Doctrine (a) If property held in trust for the people for the state. v. Any attempt by state to relinquish its power over public resource should be invalidated under doctrine (e) Purpestures: Encroachments on public lands by private persons. no court has ever endorsed (c) State has no power to transfer public lands except to the extent that selling small parcels promotes public interest or transfer does not substantially impair public interest in the land and waters remaining (Illinois Central). Gov’t had to pay compensation b/c of action for inverse condemnation (government takes but does not use formal eminent domain) iv. sought twenty acre landfill on its Lake Shore campus in Chicago with some benefit to public. federal hurdles until injunction brought by Lake Michigan Federation) i. it cannot be abdicated. Appellate court thinks custom is better b/c can cover larger area i. Custom: such usage by common consent and uniform practice has become the law of the place. legislative. Illinois Central Railroad Co. can sometimes extend to public parks and state wilderness areas unconnected to navigable waters. United States Army Corps of Engineers: Loyola Univ. or of the subject manner to which it relates 1) Must be ancient 2) Exercised w/o interruption 18 . cleared environmental. Public trust is violated when primary purpose of legislative grant is to benefit private interest iii. Illinois: Held that state has ownership of lands under navigable waters (Chicago Lakeshore) and cannot give control to private corporation (b) Resources covered under Public Trust Doctrine: Mostly navigable water. Courts should be critical of attempts by state to surrender valuable public resources to private entity ii. Dissent: only necessary to invoke doctrine if private company violates public rights (d) Debate over what is public interest (Lake Michigan Federation v.Downloaded From farm was a taking b/c ruined the chicken business. dealt with by nuisance laws. Thornton v. Hay: Issue whether state can prevent landowners from enclosing dry-sand area contained within the legal description of their ocean-front property.

first possession/property in time ii) Internet websites (a) Peta v. Comedy of the Commons: Custom. with ownership vested in society Inherently Public Property D. Held it was trademark infringement. and • Wants to have theory of public rights immune to attacks against it • Extrapolates form other laws to see how they apply to public rights • Original doctrines grew out of need for commerce but later applied to recreation and conservation • Argues for public rights because of diffused publics/economics of scale/nobody could handle the property • Believes that there is inherently public property. CL showed can have property rights to 3) Peaceable and free from dispute 4) Reasonableness 5) Certainty of what it covers 6) Must be obligatory 7) Not be repugnant or inconsistent with other customs or law Carol Rose. Commerce. (b) For trademark infringement/unfair competition must prove i. It possesses a mark ii. labor theory notions. Used mark in connection with sale… of goods or services (people eating tasty animals) as parody on trademark infringement. *Court in Peta said was in “connection with goods and services” even though not commercial b/c prevented users from obtaining or using PETA’s goods or services due to frustration (huge expansion) (c) Trademark: requires no novelty or originality. Guyon: cannot have property rights to wavelength. Doughney: Peta sued Doughney after creating website peta. His use of mark occurred “in commerce” iv. Oak Leaves Broadcasting Station. Inc. Coase: idea is not about wavelength but devices used to broadcast and receive wavelengths.Downloaded From OutlineDepot. Tribune Co. v. different from copyright/patent/other IP i. Considerations: Industry customs.: Restrained defendant from broadcasting over same wave length or in close proximity. Generic terms cannot be trademarks 19 . Defendant used the mark iii. Used in manner likely to confuse consumers vi. Water 3) Electronic Communications i) Radio Waves (a) Before Congress passed regulatory framework.

custom. larceny has occurred v. proximity to exit. public accommodation laws. Shack: Rights to exclude from private property can be violated when trespassers seek the welfare of the tenants 20 . Shack i. Then various exceptions to the right to exclude: necessity. Then Basic powers associated with owner sovereignty: right to include others (license). Trespass: used to block one from “taking possession” of owner’s property. How do you define “possession” though (in a store)? ii.Downloaded From OutlineDepot. Fanciful marks (“Exxon”) and arbitrary marks (“Apple” for computers) need only be used in commerce to be protected iv. Exception to trespass: necessity iii. Olivo) iv. right to abandon or destroy property. furtive unusual behavior. Protects the right to exclude iii. Protecting the Right to Exclude A. Considerations: concealment of goods. 1) Criminal Laws i) Criminal Laws Protecting Personal Property Needed to prevent people from resorting to self help among other reasons (a) Larceny i. if customer exercises dominion and control wholly inconsistent with continued rights of owner and other elements of the crime are present. Person can be charged with larceny for shoplifting while caught with goods inside the store if the evidence establishes the elements of larceny (People v. Case law focuses on actor’s intent and exercise of dominion and control over the property. right to transfer ownership. ii. Protecting the Right to Exclude Begin surveying various ways in which law recognizes and protects right of an owner to exclude others from her “thing”. State ii. association in minds of consumers between mark and product to be protectible (Dunkin Donuts) iii. right to transfer custody but not ownership (bailment). anti-discrimination laws. Nongeneric descriptive marks must acquire secondary meaning. At CL: prohibited taking personal tangible property by trespass (diminished this requirement-store customer) from the possession of another without legal authority with the intent to permanently deprive. Traditional test is consumer confusion but trend to allow trademark dilution cases even when no confusion CHAPTER IV Owner Sovereignty and its Limits A. possession of known shoplifting device (b) Criminal Laws Protecting Real Property (Trespass) State v.

loss of productivity not enough): Intel Corp v. lost openness of communication vi. whereby other is deprived of the use and possession (c) Trespass to chattels: i. Can invasion by electrons be considered nuisance? 3) Self-Help i) To what extent can owner or possessor use self-help to vindicate interest in property? 21 . Allows recovery for interference with possession of personal property not sufficiently important enough to be classified as conversion ii. Hamidi iv. Hamidi: Unwanted emails that do not damage computer system or impair functioning but costs effort and expense to remove is not trespass to chattels v. Dissent: do not need actual damage if repetitive vii. can be used in variety of circumstances involving wrongful taking of personal property in which plaintiff wanted to recover possession (b) Conversion: wrongful possession or dispossession of another’s property as if it were one’s own. most severe punishments for property (arson and burglary) threaten people as well 2) Civil Actions i) Civil Actions Protecting Real Property (a) Trespass: used to vindicate interest that person in actual possession has in exclusive possession to land. willful interference with an item of property in manner inconsistent with another’s right. unwanted internet intrusions iii. Rarely used until recently with hacking. damages and injunctions ii) Civil Actions Protecting Personal Property (a) Replevin: plaintiff can recover possession of goods. spamming. No trespass to chattels when no damage or impairment (actual injury. damages and injunctions (b) Ejectment: used to vindicate interest of person who has title to land against person wrongfully in possession (c) Nuisance: protects interest in use and enjoyment of land. v. vi. Creating absolute property right to exclude undesirable communication from email will raise costs to iv. (necessity). here to aid migrant farmers medically and legally Similar to public trusts: public right to medical care and legal counsel precludes other rights Owner still has right to exclude solicitors or peddlers and require ID from anybody in the interest of safety Criminal law systematically more concerned with protection of persons than property.Downloaded From OutlineDepot. Intel Corp v.

com (a) MPC: can use reasonable force to prevent unlawful entry onto property or unlawful carrying away of tangible movable property (b) Many jds say can use deadly force to avert burglary (c) Retaking of lease premises. 22 . needed to moor his boat. Issue whether to apply in rule-like fashion or on case by case basis i) Necessity (a) Can allow trespass in unexpected situations (b) Ploof v. Singleton) (b) Many states allow people to hunt unless there is a sign excluding hunting (c) Where custom causes damage.Downloaded From OutlineDepot. may be overridden (see Baker hounds) iii) Public Accomodation Laws (a) Owners of public accommodation have more qualified rights than private owners to exclude. Trend to use judicial process as proper way to evict since forcible changing of locks can cause violence (can never be peaceable) (e) Repossession of property: Repossession of car at night is allowed and not considered “breach of peace” under UCC (Williams v. Self help repossession of landlord’s premises by locking out tenant is wrongful here b/c not done in peaceable manner ii. He was worried about her causing damage to the property. Landlord is legally entitled to possession ii. Landlord’s means of reentry are peaceable (d) Berg v. i. need two conditions: i. D’s man unmoored it. to stop property that is uncontrollable (an animal) (d) Necessity rule transfers property rule to liability rule (how?) ii) Custom (a) Custom allows hunting on forest lands that are unecnclosed and the owners cannot negate this (McConico v. Exceptions to the Right to Exclude 1) Four categories of exceptions stated above: Necessity Custom Public accommodation laws Anti-discrimination laws . Doctrine of necessity applies with special force to preservation of human life (c) Preserve human life. with police officer present. Wiley: Wiley changed locks when tenant Berg was away. Ford Motor Credit Company) (f) How is “breach of peace” defined: force or threat of force? B. Putnam: P sailing and caught in storm. to protect property from unexpected nature. ship was destroyed and injuries resulted.

Courts have said that use of a group as a public accommodation makes them enforceable under the act (Boy Scouts) ii. motion picture house. 14th Amendment (Equal protection clause) only when government involvement. The more public access. hotel. that right transferred to government commission and they don’t have rule against card-counters (Uston) (f) Uston v. concert hall. iv. This applies not only to common carriers. (g) But still have right to exclude those whose actions disrupt operations of premises. cafeteria. racist name) (d) Common carrier regulated under Commerce Clause (interstate commerce) (e) Private venues governed by govt commission (gambling) lose their total right to exclude. motel. etc. the less you can exclude in an arbitrary (b) Subject to general duty of nondiscrimination. Resorts Int’l: Common law right to exclude is substantially limited by competing common law right of reasonable access to public places. But for intervention of state courts. must provide service to customers on first-come. lunchroom. iv) Anti-discrimination Laws (a) Private owner can exclude based on race from his home or apartment (b) Restrictive covenants: See requirements below (c) Shelley v. Racist covenants can also be argued against by saying violate public policy 23 . schools and hospitals i. does not affect private agreements iii. Does not include private clubs and non-public establishments. theater. would have been free to occupy the property. Since enforcement of agreement was done through state actions. satisfies criteria. restaurant. But “voluntary action” not to sell would not be a problem if no state action involved. Property sold to Shelleys (blacks) and neighbor sued to restrain Shelley from possession of property ii. innkeepers but to all property owners who open their premise to the public.). Kraemer: i. Discriminatory name on public accommodation can effect P’s enjoyment of it (Redskins. first-serve basis and charge reasonable rates (c) Title II of Civil Rights Act of 1964: all persons entitled to full and equal enjoyment of places of public accommodation (inn. Neighbors signed agreement restricting for 50 years purchase of property by non-whites.Downloaded From OutlineDepot.

Goldberg wrote that no need to show that it’s state action to enforce. cohabiting couples by giving benefits to married couples C. pricing of housing except for single family house with conditions and religious organization/private club (on 468). But J. But when right to exercise religion is weighed against right to discriminate against unmarried cohabiting couples. this requires loose reading of the act (d) Cannot discriminate in housing based on marital status. This was positive b/c did not threaten to transform all judicial enforcement of trespass law into state action (c) Sup Ct ducked question whether enforcement of trespass law for racist reasons is state action b/c Civil Rights Act prohibited racial discrimination in any public accommodation affected by interstate commerce (d) But b/c never resolved question v) vi) Use of Trespass Actions to Exclude Persons based on race (a) Supreme Court held that prosecutions for criminal trespass were state action when segregation required by law. (b) Objectives: Eliminate discrimination and promote diverse communities (c) Allowed to discriminate discreetly? but not allowed to advertise b/c gives sense that it’s allowed (woman who wants female roommate). selling. (b) In Bell v. He wrote that framers of 14th Amendment intended to constitutionalize common law rights of equal access to inns and common carriers as part of the civil rights enjoyed by all persons. marital status discrim not as intense state concern as other discrimination. Maryland. law already discriminates against unmarried. courts can allow (Attorney General v. Other Powers of the Sovereign Owner Basic powers of inclusion and exclusion that sovereign owner can exercise: License: give permission to someone to access property Bailment: transfer temporary custody of property to someone else Power to abandon and destroy property Power to transfer property to someone else by gift or sale i) Licenses 24 . even when that right is exercised in a discriminatory manner Fair Housing Act (a) Prohibited discrimination in renting.Downloaded From OutlineDepot. argued that restaurant owner relied on police and courts to enforce racist preferences transforms private discrimination into state action and forbidden by 14th amendment. Desilets). meant that owners of property not open to the public can continue to call upon the power of the state to enforce their right to exclude.

(b) Exception: car parked in secured lot and kept keys. (g) Also can become irrevocable if reasonably rely on statements of licensor. In Hurst v. Washington Jockey Club of DC: Marrone brings action of trespass for preventing him from entering race track after he bought ticket of admission. can be guilty of trespass (l) If ticket revoked: can sue for breach of contract (m) License agreement can be shrinkwrap or clickwrap and are enforceable even if not on outside of box. (b) Statute of Frauds does not apply.Downloaded From OutlineDepot. (h) Marrone v. It does not convey an interest in the racetrack. v. Impractical to put entire contract on the box. (f) Only irrevocable for time taken to use interest. By throwing him out. (d) Automatically revoked when licensor dies or conveys title to someone else. Inc. Pictures Theatres. iii. Since lot had controlled entrance/exit. ii. Waiver of owner’s right to exclude. • His only recourse was to sue for breach of contract. not considered interest in land. Zeidenberg) ii) Bailments (a) Owner of property (bailor) temporarily transfers custody of the property to another (bailee) for some purpose (Must be full transfer of possession and control of subject matter to bailee to exclude it from possession of the owner and all other person (sole custody and control of). (ProCD. A ticket is a contract and does not create an interest in the property that it may concern unless it’s also a conveyance. Ltd: the ticket gave a contract not to revoke the license for the entire show. (c) At CL. Or could say was a grant to see the show and a license to be on property. a license with a grant is not revocable (j) To make license irrevocable: i. Can be oral or implied. licensor can revoke license at any time. uniformed security guards and owner had 25 .com (a) “Permission slip” from owner of asset to another person allowing gaining access to land or property on certain terms. A contract creates personal right while an in rem right is person against entire world. Make a license into an easement (k) If exceed scope of permission of license. could not use self-help to resist being thrown out (i) Was assumed that entertainment ticket created a revocable license. (e) Can be irrevocable when license coupled with interest. asserts that they trespassed on his “property” (right to use the racetrack) i. Give license and interest (ltd only to the interest) ii. An attempt to overthrow the commonly accepted rule that tickets do not create right in rem.

are transferred to bailee Bailmee has more rights than licensee. unclear whether bailee. Bailee has right to sue over chattel converted. most notably the right to exclude others from owned thing. breach of contract. involuntary bailee or stranger. lesser liability than ordinary bailee. Can sue for damages from breach of contract or conversion or replevin. custody and control Once the purpose is accomplished. Only liable if negligent in delivering goods to wrong person (Cowen v. ordinary. replevin). Refutes theory here that just b/c postal customers can’t go after Postmaster. court found bailment created (Allen v. iii) Abandonment and Destruction (a) Owner sovereignty commonly thought of to include right to abandon property or destroy it 26 . If involuntary.Downloaded From OutlineDepot. In Pressprich. i. reasonable care. may maintain actions against violating third parties (damages. Jus Tertii: rights of third party limit your ability to sue. that Pressprich is stranger to the bond. extraordinary) i. no contractual understanding but did possess it for 15 seconds. understood that the property will be returned Some of the bailor’s rights associated with ownership. conversion. Bailee treated as surrogate for ownership: i. ii. Depending on who the benefit is for. Court says voluntary possession never established. If not gratuitious. Pressprich) ii. the bailee’s responsibility changes (slight. need Delivery. Bailee’s Duty of Care • Roman code: complicated 6 fold classification of bailments and standards of care • Justice Story: Degree of responsibility depends on who the benefit is for • Things within normal scope of bailment need to be returned but unexpected items may not be in scope of responsibility • Strictly liable for misdelivery Involuntary Bailee: not responsible for property at all unless he exercises dominion over it. He has exclusive right to possess (c) (d) (e) (f) (g) (h) (i) limited access. Bailee has special property rights independent of bailor’s rights. Hyatt Regency Nashville Hotel) Generally. that Postmaster cannot go after them. can maintain action against the bailor. Bailee has general action of trespass against stranger and can recover damages for property he was responsible over (Winfield: Postmaster (bailee) files claim on behalf of mail owners (bailors).

In Lauderbaugh v. available housing and overall monetary loss to society (Eyerman v. The requirement is restriction on alienation (selling without writing) but increases overall transferability of property (b) Delivery Requirement 27 . v. If standards to membership were articulated. surrender or sale of property right in land must be in writing and signed by at least one of the parties vi.) (g) Pro-destruction: economic gains (efficiency). This results in MacKenzies’ unable to abandon property that is costing them fees and taxes (Pocono Springs Civic Assoc. Court says home is necessary for property. Williams: court says that rule requiring membership in organization to buy property was unreasonable restraint on alienation. Coops and condos: acceptable to be more picky since more close substitutes for condos than vacation lots and more about interdependence and keeping up common areas/management v. Transferability good for efficiency (Coase) but some things may be inappropriate for transfer (body parts) yet still be afforded attributes of property (right to exclude) ii. expressive value (h) Anti-destruction: lower property values.Downloaded From OutlineDepot. court didn’t like iv. dead-hand control (Everman) iv) Transfer (a) Rules Designed to Enhance Transferability: i. Inalienability: Original owner barred from engaging in transfer that that absolutely limits future transfers. MacKenzie) (e) Easements. Statute of Frauds: Any conveyance of property right in land (other than short term lease) and any contract for the assignment. SOF has served to increase overall security of property rights (and  lower costs). architectural values. courts would have basis for reviewing for abuse and discretion (reasonableness) but since no standards. mineral fields or anything that can be thrown out can be abandoned (f) Limits to destruction: Court allows injunction to prevent testatrix from razing home after death. Inc. Partial restraints will be allowed if “reasonable” iii. against public good/ (b) Makes sense if think of property as individual right (efficiency) but maybe not from view of broader social welfare (c) Opposite of first possession: parting with possession to no one in particular with no intention of resuming possession (d) Law in PA (and traditional rule) does not allow abandonment of real property if have title to it (so that cannot abandon hazardous waste without cleanup and impracticalities of abandonment process). Mercantile Trust Co.

Irons v. (b) Potentially infinite duration (c) At ancient CL. Divisions by Time: more efficient use of land. then to Lisa”. If you had no sons. B. Intro Seisin: somebody must have possession of the land to pay feudal dues Livery of Seisin: ceremony to give notice of the transfer Property rights were “Usufructuary” – means deriving benefits from land owned by someone else (King). which is a separate and distinct requirement for gift causa mortis (made in expectation of death) (Foster v. sometimes need notarization. needed to say “and his heirs” or it would be life estate (no more tho) (d) Fee Tail: no longer in US. limited number of ways to do (numerus clausus) Estates in Land Present Possessory Interests (as opposed to non-possessory interest where limited powers) i) Fee Simple Absolute (90% of privately held land.Downloaded From OutlineDepot. (b) If Marge sells. Resembles absolute ownership. “To A and the heirs of his body”.com i. or evidence of title. Holographic wills acceptable in half of estates (no witnesses) CHAPTER V Forms of Ownership A.) ii. used to create succession of life estates to keep in the family ii) Life Estate: Comes to natural end with death of named person. when she dies. usually holder of estate. cannot sell or lease more than she has (c) Purchaser will receive pur autre vie (life estate according to Marge’s life) 28 . Purpose of the delivery requirement for gifts causa mortis: • potentially override more formal methods of disposing property upon death • Court worried about fraud • Provide additional assurance that donor adequately appreciates decision v. Smallpiece: colt was never delivered after oral promise. Delivery requirement for gifts: writing which establishes donative intent does not fulfill affirmative action requirement of delivery of the property by the donor. is delivered to transferee (deedformal writing evidencing sale or easement. (a) “To Marge for life. land would revert back to King. Wills: must be in writing and witnessed by one or two disinterested parties. Some transfers take place by law only when thing being transferred. Lisa will take. Reiss) iv. But perhaps other evidence could validate the transfer iii. etc. rare to use other forms) (a) “to Marge and her heirs”.

then O has the right to reenter and take the premises” ii. where grantor or successor takes property (possibility of reverter) i. 29 . Can be for term of years: vested remainder in term of X years. “to Springfield Law School but if it is not used for X. “To Homer for life. Transfer not automatic (c) Fee Simple subject to Executory Limitation: If Defeasible fee is followed by interest not reserved to the grantor. then to O. follows life estate but goes to party other than grantor i. i.” ii. i. and Maggie and their heirs” ii. then to O. Even if Homer dies before Marge. as long as it is used for instruction in law. “To Springfield Law as long as used for instruction in law.Downloaded From OutlineDepot. Lisa. Language of duration: “as long as”. “To Springfield Law School. then to Springfield Animal Hospital ii.” or implicitly if just “To Marge for life” (b) Possibility of Reverter: interest reserved to grantor that follows fee simple determinable. “during” (b) Fee simple subject to condition subsequent: Continues until happening of named event. then right to retake by grantor or successor (right of reentry) i. then to Bart. Vests immediately in third party regardless of words of limitation or condition Future Interests: iv) Interests Retained by the Grantor (a) Reversion: when owner has not disposed of the entire fee i. as long as it is used for instruction in the law. Can be implicit (c) Right of Entry/Power of Termination: Interest retained by grantor following defeasible fee simple subject to condition subsequent . not automatic v) Interests Created in Grantee (a) Remainder: Like reversion. “To Springfield Law School. see Future Interests Defeasible Fees: May end on happening of named contingency (a) Fee Simple Determinable: ends automatically upon occurrence of named event. “To Marge for life. see above. “while”.com iii) (d) Can be followed by “reversion” or “remainder”. then to O” ii. Indefeasibly vested: identity of takers is known and no other contingency that has to be fulfilled b/f interest ready to become possessory other than natural termination of preceding one.

Maintaining the System i) Conservation of Estates: everything must add up to fee simple. b/c divests interest of a 3rd party (Bart) 3) Springing: If divests interest of the grantor a. After spouse. Spouse gets b/w ½ and 1/3 iii. then parents. If no descendants. then to Lisa” v. Intestacy statute: how property gets divided without will according to state ii. 1) “To Bart. Contingent remainders: some uncertainty exists to identity of the class of takers or the occurrence of the condition (*Subject to RAP) iv. (d) If B has life estate remainder but dies before life estate. that divests or cuts short a previous interest such as fee simple or life estate (*Subject to RAP). Vested subject to complete defeasance (Contingent): occurrence of a condition can cause interest to shift to someone else 1) “To Homer for life. courts can add interest when unclear to maintain fee simple absolute ii) Flexibility of the Estate System Using the Estate System for Estate Planning (a) Heirs at law (intestacy): i. but if alcohol is ever consumed on the premises. then to Bart. 30 . (e) Future interests are now often transferable and devisable C. iii. still have remainder. Reversion to Marge in five-year period after Bart’s death. Lisa divests Marge’s (grantor) interest. -----Maggie has not yet been born. even if life estate subject dies before grantor. (b) Vests in interest means that various types of uncertainty about the interest have been resolved (c) Once have vested remainder. but if Bart fails to graduate from High School by age 19. (b) Executory Interest: Interest in a transferee (not retained by grantor). remainder to Lisa 5 years after his death”.Downloaded From OutlineDepot. Marge grants to “Bart for life. last interest involved in situation when it becomes possessory has to be in fee simple absolute. Law of Gravity: inheritance moves downward first. remainder goes to heirs of B since indefeasibly vested. then to his children and their heirs”. Vested subject to partial defeasance (subject to open) (Contingent): more members could enter the class (*Subject to RAP) 1) “To Homer for life. Derives from Fee Simple subject to executory limitation. then to Ned Flanders” 2) Shifting: like above. vi) Vesting: (a) Interest vests in possession when becomes present possessory one.

If intestate has 3 kids and 2 die. the company. viii. Even if no surviving children at the immediate level. initial division occurs at level where there is living descendant. Cosanguinity: counts distance in terms of number of generations to common ancester ii. But this invalidation implied possibility of reverter in the grantor. 3 methods to figure out how to divide up stuff for kids: v. If A had 2 kids and both dead. brothers and sisters and children will be next. vii. each will get 1/3.Downloaded From OutlineDepot. and has 3 grandkids. vi. X’s children divide his interest. If no parents. initial division first level where there’s a survivor but after that. surviving child gets 1/3 but remaining 2/3 divided equally among iv. Per capital at each generation: adopted by 13 states. Bell. remainder gets divided equally for next generation (everyone on same level. If not. and since it was dissolved. ix. (d) Interests less than fee simple can be held void for reasons of public policy or constitutionality (willed land for white persons use only deemed invalid and implied reversion) iii) Disclaimer (a) Cannot be forced to take property against will and can disclaim it (b) Considered predeceasing and goes automatically to heirs (avoids taxation) (c) Must put disclaimer in writing and identify the transfer and sign and deliver within 9 months of its vesting 31 . Uniform Probate code approach: growing minority idea that tries to more closely adhere to what people would want to do. In City of Klamath Falls v. initial division occurs at level immediately below decedent so if one child (X) already died. Per stirpes: By the stocks/branches. But cannot penalize b/c of marriage (c) RAP does not apply to reversionary interest but does to executory interest. Nearer blood relatives take precedence over more distant ones but states very whether based on consanguinity or on parentelic system i. Corporation gave executory interest to its two principal shareholders so was subject to RAP and void. Estate of Williams: Parsing of language in the will to determine whether intent was fee simple or life estate defeasible or determinable on marriage. Parentelic (majority rule): priority is given to those close by in terms of sharing a common ancestor so grandnieces (4th degree under cosang) are higher than aunts (3rd degree) b/c descended from decedent’s parents (b) Will construction: Williams v. still went to their heirs. Modern per stripes (majority rule): used by 25 states. same amount of inheritance). used by 14 states.

bonds. lose right to disclaim (e) Once disclaim. Other courts will say it creates a tenancy at will. determinable on his death. considered passing away before testator iv) Numerus Clausus: (a) Closed system of property interests. “Optimal Standardization in the Law of Property: Numerus Clausus Principle” i. current crops). so Holmes rejects it. Need for standardization stems from externality involving measuring costs. difficult to communicate to all people what their responsibilities are (c) Other parties would lose out by search costs of whether property has new category (Merrill and Smith) (d) Excessive fragmentations (anti-commons) (e) Gives power of creating and destroying forms of property to the legislature (f) Argument against limitation: decreases control of property. Gerrish: Court says that lease of indefinite duration creates a life estate in the tenant. (j) Personal Property: Can create estates in chattel (trusts. removing resources) 32 . Individual’s interest in creating the non-standard right. less efficient (g) Merrill and Smith.Downloaded From OutlineDepot. costs of all who have potential interests in this type of property go up iii. (b) Waste is most important cause of action that can be brought by persons who hold non-possessory interests in the property against other owners currently in possession (c) Affirmative waste: Life tenant actively causes permanent injury (destroying buildings. (d) If accept any benefits of ownership of that property. Mediating Conflicts Over Time i) Waste (a) Historically. Also numerus clausus. parties who create new property rights will not take into account the full magnitude of the measurement costs they impose on strangers to the title ii. is less than additional measurement costs imposed on other market participants. unlike contract (b) Property is in rem rights. Angy act of life tenant that does permanent injury to inheritance is waste. Allowing even one person to create idiosyncratic property right. extra benefit. Interesting line-drawing exercises. Whiton: Question whether language creates new fees structure that would limit alienability of property (estate descending to heirs only on the father’s side new kind of inheritance).) but some restrictions on creation of future interests in “consumable” chattel (food. rationale to prohibit their creation (h) In Johnson v. tenant had limited opportunities to change land. Solution is to make specific grants of personal property D. (i) Garner v.

if they fail to use or they sell or transfer all or part of property…. Take property out of market ii. Erector intended to pass “my residence” on to B. failing to pay taxes (e) Ameliorative waste: Principal use of land is substantially changed (tearing down building) but increases value of the land. Mountain Brow Lodge No. Concentrates wealth in elite class v. it reverts back to first parties.Downloaded From OutlineDepot. can subtract that from purchase price to determine life estate value iii) Restraints on Alienation: courts will strike down restraints on alienation and turn them into fee simple (Blackacre to A so long as A does not alienate) (a) Reasons against inalienation: i. Fairchild: contingent remainder holders claim that planned demolition of mansion is waste. sale of coop with permission of board) (d) Restraints on use of property: Usually upheld. May be actionable if: i) The grantor intended to pass land with specified buildings on it and ii) The existing building can reasonably be used for purposes built by grantor. their successors and heirs. Brokaw v. (f) Minority view permits ameliorative waste where can be justified by changed circumstances (Melms v. Pabst Brewing Co.” Is it fee simple subject to condition subsequent (valid) or restrictive language 33 . Prevents creditors from reaching property to pay owner’s debts (b) Sale to member of club: effective unless no reasonable standards for admission to association and have arbitrary power to deny membership (see Restrictions on Transfer above) (c) Reasonablness test: partial restraints on fee simple valid if reasonable (Preemptive option to reserve right of first refusal if owner decides to sell. etc. Cy Pres) ii) Valuation of Interests (a) PV=C/(1+discount rate)^n (b) Used to value various interests carved out of fee simple (c) Present value of future estate is cost divided by (1+ discount rate)^number of years deferred (d) Once you valuate PV of future interest. 82 v. even though an apartment building would be more valuable. Unmortgageable and therefore unimprovable iv. Inefficient iii. “property is restricted for use and benefit of second party only.) (g) General rule: structure must be maintained as is unless testator’s purpose cannot be served without it being destroyed (see Changed (d) Permissive waste: Land is allowed to fall into disrepair or fails to take reasonable measure to protect the land. Toscano: upheld restraint limiting use to club.

not to any grantor’s interests (reversions. This may leave a fee simple determinable if language struck is “as long as…” or fee simple absolute if language is struck is “but if … then…”. it is struck and the remaining valid interests stand. and when no validating life. Effect of land use restriction on number of potential buyers iii. Inc: Court held that RAP applies to corporations as well. Benefits to land in area from the restriction? iv. remainder subject to open: closing of class (e) Rule of two charities: an interest does not violate the RAP. Option agreement to repurchase property 34 . not later than twenty-one years after some life in being at the creation of the interest”. i. Pergola Properties. within the statutory time limit to be valid under the Rule. 21 years. Testator cannot be expected to see all the contingencies (b) Allows people to control use of property for one generation into future plus next generation up to traditional age of minority. executory interest: taking of possession iii.Downloaded From OutlineDepot. the restriction is not on the land use but on who uses. Costly to the owner b/c cannot sell it or give away amounting to absolute restraint because of vagueness. (c) “No interest is good unless it must vest. (i) Rule only applies to contingent remainders and executory interests. rights of entry. not in possession. Dissent: can fragment into thousands of descendants when it reverts. (h) When an interest violates the Rule. therefore absolute restraint on power of alienation and void? Criteria used to analyze: i. How severe is the remedy involved if one fails to abide by restriction (Penalties/injunctions or Forfeiture) ii. v. possibilities of reverter) (j) Corporations and RAP: Symphony Space. if interest involves a transfer from one charity to another. (g) A remainder to A’s children is valid since it must vest or fail at A’s death (cannot have more children after death). if at all. contingent remainder: ascertainment of identity of the taker and satisfaction of all conditions precedent ii. Inc. as opposed to City of Klamath Falls. (f) Future interests only have to vest in interest. Focus on needs of future generation more than dead person iii. A is the validating life. (d) Elimination of the suspense element: i. Does restriction discourage improvements? v. where executory interest was given to stockholders of donor corporation and violated RAP. impossible to track them down iv) Rule against Perpetuities (a) Invalidates interests that gave too much control to “dead hand”.

If someone creates life estate in A. avoids estate tax. Defeats policy goals of RAP: disincentive to develop and hinders alienability. can be customized to degree impossible within catalog of legal estates and interests. Ways to avoid problem: i. (d) No longer in effect except Merger Rule: Any combination of transfers that puts in the hands of a single person a series of interests that add up to a larger estate. where trustee can be given powers of alienation and appointment and entire arrangement as far as management and distribution of the proceeds is concerned. (c) Also. interest has to be void (k) Interpretation and Implication: drafters and courts can insert perpetuities savings clause. then life estate and remainder are both legal and interest becomes fee simple. Interest simply fails with respect to that child only (rejects all or nothing approach) (l) Uniform Statutory Rule Against Perpetuities: (USRAP): allows someone to petition a Ct to reform a disposition in the manner that most closely approximates the transferor’s plan v) Vestigial Maintenance Doctrines: (a) Served at one time to clean up conveyances and make them more alienable than they otherwise might have been.g.Downloaded From OutlineDepot. If option was construed so can only apply within 21 years iii. then that conveyance is valid if occurrence happens at the first time and void if it happens in the second. iv. Method to evade taxes by giving intervivos life estate and reversion at end of life estate. Cts can invalidate only part of it. most future interests are now created in trust. and remainder to A’s heirs. Wait to see whether or not additional children are born. (b) Recently. alleviating some problems courts traditionally faced. 35 . (e) Rule in Shelley’s Case: landowners would attempt to convey property while still alive in such a way that persons would take as purchasers rather than by descent. so if gift made to A’s children. future interest have been made more fully alienable than they were at common law. i. and one occurs within period and next one may not. Option to purchase land that originates in lease provision and not exercisable after lease expires violated RAP. if not interest valid) does not apply because if there is a contingency beyond the period. that person would be given a fee simple absolute. Wait and see doctrine: (E. interest is held to vest even if a child might be born too remotely. Separability Doctrine: when instrument conveys future interest that may vest upon one events or more. which adds up to fee simple absolute. Has been abolished in most states today.

com E. iv. they still share JT. If at least two others in JT. (c) Tenancy by the Entirety: Exists only b/w husband and wife. if any of first three unities destroyed. although not necessarily identical shares 4) Possession: Each JT must have right to possession of the whole iii. or by joint AP Strawperson: Cannot convey to another as joint tenants. Equal shares not necessary iii. Four unities requires under CL. Traditionally. i. Each JT has power to unilaterally transfer his interest while living. life estate. etc. such as fee simple. Whenever conveyance made to two or more person not husband and wife. when one joint tenant dies. need to use strawperson to convey. JT is severed and TIC is created. ii. vi. Movement away from four unities to try to honor intent of grantor. with right of survivorship that cannot be severed without consent of both spouses or divorce 36 . when one dies. Can change JT into TIC without consent of other parties by using straw man but a growing number of jurisdictions require some form of notice to the other joint tenant for such a severance to be valid vii. that interest becomes TIC. presumed to take as Tenants in common iv. Once transferred. Independently descendible and conveyable ii. Heirs always take as tenants in common (b) Joint Tenancy: Two or more person own property with right of survivorship. Each has right to entire property subject to same right in cotenant. tenancy in common created: TTIP 1) Time: Interest must vest at the same time (heirs ascertained at different times would not work) 2) Title: Must acquire title by same deed or will. JT is only appropriate for intimate relationship like committed relationship or family business. v. If one of four entities not present. Interests must be equal in all respects. interest passes to her heirs or devisees i. 3) Interest: each must have same legal interest in property. lease. but many states no longer require strawperson. life estates and remainders of executory interest i) Types of Concurrent and Marital Estates (a) Tenancy in common: Two or more person own the property with no right of survivorship between them. Co-ownership and Mediating Conflicts between Co-owners: can be concurrent ownership in fee simple.Downloaded From OutlineDepot. survivor takes all.

com i. If property acquired without marriage. v. require fifth. (d) Community Property: i. Some states of South and West have community property for married couples. iii. right of survivorship. Any alienation must have consent of both spouses iv. court will order property sold and proceeds divided equally. not available to tenants by the entirety b/c neither spouse can destroy right of survivorship of other spouse i. All property acquired during marriage automatically becomes community property. partition in kind was practicable and partition by sale would have forced defendant tenant to surrender her home and perhaps jeopardize her livelihood. No unilateral exit as long as couple stays married. marriage in some states. Partition in kind the default because sale of one’s property without consent is extreme exercise of power warranted only in clear cases. apartment bldgs. In addition to four unities. default would be TIC. iii. Partition in kind: partition property into separate tracts if feasible. urban lots. Also may cause loss in value. Terminates co-tenancy and divides common property. one must pay owelty (cash payment) to other. Both spouses can use a “straw” to become tenants in common but cannot do on own except through divorce. Can be favored for personhood/business reasons or if significant improvements made. Can sue for any reason or no reason and court will grant request. even though her operation of rubbish and garbage removal service on a portion of the land might reduce fair market value of the proposed residential lots. vi. In Delfino v. 1) Physical division not feasible 2) Interests of owners would be better served by sale iii. If not equal in value. Minority follows intention and JT would most closely resemble what they chose so it would be JT. Vealencis. 37 . Houses. ii. even though intend to be TBTE. Like JT. Partition sale: If physical division not feasible. commercial property do not lend themselves to physical partition usually. Only minority of states have ii. each spouse has to be able to trace property and show who it came from ii) Legal Remedies (a) Partition: most important legal remedy for concurrent owners. iv. ii. Only available to married couples.Downloaded From OutlineDepot. Upon divorce. Each party then owns her tract alone in fee simple.

com iv. ii. Debate over whether surviving joint tenant takes one-half subject to the mortgage if debt not paid off b/f debtor joint tenant dies. a taking out a mortgage gives title to lender and JT is destroyed tho can argue and say not an actual conveyance. In ouster. lender who doesn’t know loses security and survivor gets windfall. title. iii. it would have damaged the land) (c) Severance of Joint Tenancy i. in lien theory states. deprives another co-tenant of right to possession. Convenience Account: O needs another person A to pay bills. possession) creates severance iii. obliged to share payments with other cotenants. In Gillmore v. Minority view. sued for accounting and recovery of damages in being denied right to use land. Actions leading to under CL. iii. If one cotenant rents to third party. In Harms v. Lender who knows of this rule will not give credit to one joint tenant. Either joint tenant can unilaterally ‘sever’ the joint tenancy which destroys right of survivorship and converts tenancy into tenancy in common ii. Joint and Survivor Bank Account: either party on the account can withdraw the amount deposited and survivor takes remaining sum when other JT dies. Partition may be to blame for decline in African-American farming b/c less likely to use wills and under intestacy ownership became more fragmented to increasing number of decendants (b) Contribution and Accounting: i. interest. Sprague: held that survivor has right to debtor’s half unencumbered by the mortgage (lender loses his security). (d) Special Problems of Joint Bank Accounts: i. An ouster starts clock ticking for AP.Downloaded From OutlineDepot. lender only has lien to the property and legal title and JT remains. Modern law may be lenient when unintentionally severed iv. non-renting cotenant can bring action for accounting ii. If not. A can write checks but has no rights of survivorship. Court held that defendant exercised exclusive possession and use of common properties in such a manner as to exclude plaintiff from using the land (if she had put more animals on. Mortgages: In title theory states. co-tenant may sue for his share of rents and profits from common property. Presumption that joint account provides survivorship rights but this can be overcome with clear and convincing 38 . If this is the intent. destruction of one of four unities (time. Gillmore.

Central issue is how to treat increases in human capital during marriage. Community property distribution: NY was one of last states to switch from title theory to equitable distribution. Professional degrees: Split approach. In re Estate of Filfiley. Do we want to provide these benefits to people who do not get married? CHAPTER VI Entity Property A. iii. Dissent: this is better system than marriage. etc. Things held in your name. stay with you after marriage (title theory). can use survivorship feature of JT of the account v. therefore statutory presumption prevails that was true joint tenancy. O’Brien) • Could make argument for accession • Exchange value not required for property interests • Question is not if degree is property but if expected earnings interest is vii. No presumption for 50/50 split. Marvin b/c does not solely rest upon it.Downloaded From OutlineDepot. Will substitute: to avoid will and probate process. 1) Not divisible property 2) Reimbursement alimony (restitution remedy) 3) Divisible property (NY – O’Brien evidence. The surviving daughter is entitled to entire fund iv. Special rules for marital interests emerge in context of divorce and inheritance. More on Marital Interests i) Marital Issues: i. Entity Property: Possessory Rights To provide for more effective management of resources in complicated settings (hi-rise apts. not the case in Marvin v. Is property Marital property or separate property? vi. ii. divorce division governed by principles of equitable division unless pre-nup. 3) Courts may employ principles of constructive trust or resulting trust to prevent unjust enrichment. In CL states. Three forms of 39 . Equitable distribution: ad hoc approach that considers dozen factors. Unmarried Partners: 1) Most states hold that express contract b/w partners on division upon separation or death is enforceable 2) Some say contract can be implied from conduct of parties. estate could not prove that it was a convenience account. business firms. iv. v. Although contract is unenforceable to extent that it explicitly rests upon sexual services. pension plans) law developed certain devices that allow owners to switch to a governance strategy for the mgmt of resources. A JT cannot withdraw entirety of fund (or deed) F.

At CL. year to year was 6 months but now mostly one month. still need to pay rent. At CL. McEnany: Exception to rule of independent covenants in Paradine legal ownership of greatest continuing importance are fee simple (and full ownership). and trust 1) Leases i) Why so popular? (a) De facto financing device. Certain financial positions prefer lease to ownership (b) Risk spreading device. Not really a form of lease but can be used by courts to force rent to be paid. usually for year or month. iii) Independent Covenants Model (a) Until recently. Covenant to pay rent was recognized to be dependent on the performance of the 40 . Neither landlord nor tenant needs to give notice before terminating relationship. (c) Tenancy at will: lasts only so long as both parties wish it to continue. Either can terminate for any reason at any time. Remedy is to sue for breach of contract. promises in leases were assumed to be independent of the other party’s performance (quiet enjoyment to tenant. (c) Form of entity property in which complexes of assets can be integrated and professionally managed ii) Lease Types (a) Term of years: Fixed time at which terminates or ends. Most state SOFs say need to be in writing if year or more (b) Periodic Tenancy: Automatically rolls over. Not trespasser b/c original entry not wrongful. Requires that each give notice to other if they desire to terminate lease. If for “duration of war”. Owner lends possession in return for periodic payments of money called rent. Just as can have unforeseen profits. holds over after right has ended. (c) Partial Eviction: Smith v. lease. Landlord is free to evict. payment of rent to landlord). Jane: Even if farm is overrun by army of alien enemies and building destroyed. tenant must continue to perform his covenant. usually same period as rollover.Downloaded From OutlineDepot. (d) Tenancy at sufferance: Individual who was once in rightful possession of property. no notice needed but mostly need equal period of time at which rent payments are made. Jane. (e) Numerus clausus: only four types under CL. Even if landlord fails to perform covenant. Can always move out or kick tenant out. Simply ends. may put in term of years at 50 or maybe tenancy at will. can have risk of losses and tenant bears risk. (b) Paradine v. Conception of lease creating a property interest was preferred to the conception of lease as creating promises (contract).

landlord takes action inconsistent with tenant’s continuing right (accepts surrender). they must only put the lessee in superior right of possession. and does not necessarily prove anything). Judges distinguished from implied warranty of habitability in a furnished cottage b/c was mixed nature of furniture and house. 1) In In re Kerr: in absence of express provision in lease authorizing landlord to relet. no implied warranty that the leased premises will be fit for tenant’s intended purposes (eatage for the cows). Complete eviction terminates obligation to pay rent Obligation to deliver premises: i. Temple. This rule assumes that the landlord is in a better position to ensure the property is open and is in a better position to take legal action to force off any holdover tenants Caveat Lessee (tenant beware). Substantial interference with tenant’s use and enjoyment of the leased premises. i. Partial ouster by landlord (building encroachment) completely absolves tenant from performing covenant to pay rent. In Sutton v.Downloaded From OutlineDepot. making of new lease is acceptance of tenant’s surrender of then existing lease. This rule assumes that the tenant has adequate remedies against the holdover tenant. Rule would not apply to de minimis encroachment. Fault of the landlord (modern trend to hold landlords responsible for acts of tenants that they could correct) Blackett v. and it reduces lawsuits ii. Even when we 41 . Tenant vacates with intention never to return (offer to surrender). tenant may terminate lease. English Rule: landlord has an implied covenant promising that the premises will be open to entry to the lessee at the time fixed by the lease. If the premises are not open to entry. Tenant has made it an absolute condition that he should have the whole of the demised premises. American Rule: landlord must only provide legal possession of the leasehold estate. at least against willful interference on landlord’s part. Tenant must vacate premises (risky (d) (e) (f) (g) (h) covenant of quiet enjoyment. tenant still has independent covenant to repair which is in force. However. which had an understanding to be reasonably fit for immediate habitation (less ability to inspect?) Constructive eviction is defense against paying rent. Substantial interference ii. vacate premises and be excused from further rent liability. Olanoff (have the lounge turn off the music!) Surrender: courts reasoned that landlord and tenant could create mutual release of further lease obligations by implied contract. minority says do not need to vacate iii. In other words. the lessee has a cause of action against the landlord. They have no duty to ensure that the property is open for entry.

First National Realty). If breach is sufficiently serious. options of promisee include rescission and termination of further performance. The W of H: implied covenant of initial habitability and fitness in leases of urban dwellings. contractual aspect of landlord-tenant law moved decisively away from model of independent covenants to model of dependant covenants. (a) Dependent covenants. (b) Contract law can apply to leases. landlord presumed to be acting on own account and accepted surrender iv) Model of Dependent Covenants: 1970s revolution in landlord-tenant law. (c) Implied warranty of habitability: i. including apartments (not commercial settings) iii. characterized by repudiation of “property” conception of leases in favor of “contract” model of leases. Under CL. no implied covenant b/c tenant able to inspect the premises and protect himself. Scope of Warranty: not everything in the housing code but those that have substantial impact upon safety or health (Javins v. The dependent covenant doctrine applies and tenant is relieved of his obligations when landlord breaches the implied covenant of habitability. Major breaches treated under model of dependant covenants. Rationales: 1) No time to inspect premises (but sometimes do) 2) Landlord knows more about defects and better position to remedy them 3) Housing codes impose duties on landlord and are enforced 4) Tenants have less bargaining power than landlords 5) UCC imply warranty of fitness for purpose intended in sale by merchant where buyer relies on seller’s skill. promisee could sue for damages only. More accurate to say. Rule that covenants that run to entire consideration of contract are mutual and dependent. Statutes govern now 42 . iv. Because it was not honored. goes to essence of consideration. building under have a statute in lease allowing landlord right to relet. If new lease extends beyond term of bankrupt’s lease. similar warranties should be applied to sale of leasehold v. only allows for balance of term of lease. including rescission of lease.Downloaded From OutlineDepot. had remedies. Criticism: 1) Economic grounds: raises rents to cover costs 2) Poor will lose more housing vi. ii. hidden defects. Except for furnished house for short term rental. If less serious covenant. and minor breaches under model of independent covenants. The restrictive covenant in defendant’s lease in Medico-Dental Building Company of LA was of such a nature.

lease is void and cannot sue for unpaid rent. and rescission. Illegal lease doctrine: if leases property that’s subject to one or more code violations.Downloaded From OutlineDepot. landlord will have presence on the premises and in a better position to find substitute tenant when original tenant breaches. Other doctrines introduced in late 60s: Doctrine of retaliatory eviction: cannot retaliate for reporting code violations. like someone acquiring property in which another has a life estate would acquire subject to the life estate. restitution. Must make reasonable efforts to relet apartment wrongfully vacated by the tenant. tenants are not able to waive. Some will benefit. xi. State v. Waiver by tenant: May be against public policy for tenant to waive defects. In Javins v. x. Shack? (b) Transfers of landlord’s reversion or tenant’s leasehold interest to third party during term of lease: generally. Tenant can move out and recover any prepaid rent or stay in possession and recover damages (rent reduction). today. Aspects of contract law. Assignee and tenant are in privity of estate ii. Consequences of Implied Warranty of Habitability: may be bad or good for people depending on demand curve. First National Realty. i. Ordinary rule: new owner of reversion takes property subject to ongoing leasehold interest but perhaps can contract around (“leasehold will terminate upon any transfer by landlord”) 43 . Kridel). .com vii. transferee takes reversion subject to tenant’s leasehold interest. But they are not in privity of contract. others will be priced out. Duty to mitigate when breach: Have moved away from original conception of lease where no duty to mitigate. in urban residential area. Remedies: Contract remedies of damages. (Sommer v. Original landlord and tenant remain in privity of contract iii. v) Transfer of Interests: Some situations where property-like notions continue to hold sway so not complete shift to contracts. Landlord responsible for common areas under CL ix. Damages for violation: Could not subtract cost of lease w/ violations from cost of lease w/o violations b/c that’s what they were already paying! Courts devised other ways to actually create damages but can be viewed as arbitrary xii. so unsafe and unsanitary. Using rent for repair or withholding. Trier of fact determines what’s appropriate. (a) Transfer of possession to the tenant: lessee acts as gatekeeper of property and can exercise in rem rights of exclusion associated with possession of property (like bailments). viii. where landlord would not be better party to find new tenant (Absentee landlords). xiii.

c) Privity of estate makes the landlord and the assignee liable to each other on the covenants in the original lease that run with the land (see test above). assignee and tenant are in privity of estate e) If T1 retains right of entry. v. “Run with the land” Test 1) Whether parties intended covenant to run 2) whether covenant “touches and concerns the land” vi. Creation 1) Assignment by Tenant: a) At CL. Promise to repay security deposit needs to restrict use of funds to the benefit of the property. Unless is novation/assumption new contract b/w L and T2 leaving T1 out of the picture. Court says that provision in lease stating that all covenants run with the land will not be enforced if the covenant does not in fact touch and concern the land. Touch and concern the land (murky): 1) Some say affects use and enjoyment of land 2) Some say affects market value of land (c) Assignment and Sublease Ordinary rule: when reversion is sold. tenant transfers entire remaining term of leasehold b) Assignee comes into privity of estate with the landlord but not privity of contract. d) If landlord assigns the reversion. if tenant transfers less than entire remaining term of his leasehold b) Sublessee is not in privity of estate with landlord and cannot sue or be sued by landlord but landlord can: Terminate original lease due to breach which would extinguish right of T1 and deal directly with T2. Or LL can go after T2 in equity b/c LL was third party beneficiary iv. only by those that “run with the land” (like covenants) v. Person in this district would want to make sure that deposit is transferred to future landlords and spell out functions of security deposit vii. Growth Realty Investors Co: defines “Touches and concerns the land”: so related to the land as to enhance its value and confer a benefit upon it. new landlord and original tenant not bound by all provisions in lease.Downloaded From OutlineDepot. mostly say not enough of retained interest to create sublease and still assignment 2) Sublease by tenant a) At CL. Inc. which it does not here. Mullendore Theatres. 44 .

4) Covenants against assignment or sublease: unless covenant to contrary. obligations bind even if not in privity of estate. A Form Lease **Variety of ways to look at document and determine if lease. rent) in addition to assignor and give assignee right to sue landlord on his covenants (e. Think in terms of triangles (landlord. Miller: Intend of parties determines whether a transfer is an assignment or a sublease (modern rule). older view: may arbitrarily refuse to accept new tenant. (test above) 2) Of Contract: parties have agreed with eachother to do or not do certain things. easement or license If lease: LL cannot engage in self help and recover property. primary tenant. Transfer of the lease for lump sum. need to evict Tests: If can keep out people 45 . even if payment is to be made in deferred installments. Profit is not reasonable denial. ii.Downloaded From OutlineDepot. Inc. where court abandons traditional doctrine that landlord has sole discretion over when to approve a transfer.g. Privities 1) Of Estate: (Landlord/tenant relationship) Concept designed to enable landlord to sue assignee of the tenant on the covenants in the lease (e. Minority/Modern view: denial of consent must be reasonable (Kendall v. transfer of some kind) Landlord KE E T1 K T2 c) Cannot be sued on contract either since no privity of contract d) Sublessor is the landlord to the sublessee (both privities) 3) Jaber v. a) Arbitrary denial of consent: if lease contains covenant against transfer w/o L’s consent. Can sue for all covenants in the lease..g. leasehold is freely transferable by tenant without L’s consent. Can sue for all covenants that run with the land. even tho L has reversion interest. Ernest Pestana. indicates an assignment. right to repair) even tho no privity of contract.

considered confiscatory and taking of landlord’s property without compensation (f) Eviction of tenant: If could evict at end of term. If does not have mechanisms for changing economic conditions. Used during wars/inflation to prevent undue hardship ii. Condo and Coop Housing: Transactional Efficiency. iii. Three prong balancing test of whether “taking” or not. Conversion to condos iii. finance mortgage collectively (b) Condo: Occupants each own units they occupy. Held constitutional on theory that bears rational relation to legitimate public purpose: welfare of housing consumers (e) Reasonable Return: Rent control ordinances must provide landlord with just and reasonable return on her property. collective ownership to common areas (tenants in common). Condos and Common Interest Communities i) Recent rise in use of coops. Shortage of housing. condos and common-interest communities (Hansmann. First rent freeze. Affordable housing (d) Constitutionality: i. 12 Sup Ct cases on whether rent control is taking which requires just compensation from owners.Downloaded From OutlineDepot. Deterioration of housing iv. must finance individually 46 . Promotes stability (enhances personhood values-Radin) iii. Carolina Coastal Commis. Never ruled unconstitutional ii. What is the property being taken? Financial opportunity? Expectation of monetary gain?-in Lucas v. then stabilization (b) Problems i. and Tenure Choice) (a) Cooperative: occupants lease their individual units and collectively own the building thru If can relocate Retention of power to move vi) Rent Control (a) Reasons/Method i. Rent stabilization better ii. Tax Subs. would defeat purpose so always include provision requiring renewal of lease unless good cause to evict 2) Cooperatives. Less new development v. waiting lists ii. Price regulation. S. Restricts mobility of labor market (c) Benefits i.

com (c) Collective decision making costlier and less efficient than landlord/housing corp (d) Condo spread due to tax reasons/subsidies and less risk based on others than in coops (e) But Coops may save b/c only one mortgage (f) Operate outside of bounds of federal constitutional issues because viewed as private entity. Privatization effect. (d) 40 West 67th Street v.). Question of which standard to use (business judgment rule or “Competent evidence”). Lakeside Village Condo Assoc: upheld prohibition on pets. B. Entity Property: Nonpossessory Interests 1) Trusts i) Creation: (a) Settlor: creator of trust. etc. etc. (f) Trustee can be beneficiary but not sole trustee and sole beneficiary ii) Features (a) Trust assets in absolute ownership so trustee can treat as full owner would 47 . ii) Rules of Conduct/Governance (a) Generally the test of validity is reasonableness but courts moving to applying different standards to different rules (b) Restrictions appearing in originating document have strong presumption of validity. garbage. “Reasonablenss” test by legislature should not be based on specific facts of the case but to common interest development as a whole (arbitrary. If no responsibilities to perform.I wish to) (e) Trustee: has all managerial responsibilities.Downloaded From OutlineDepot. Pullman: Coop society ejects troublesome tenant. trust fails. (c) Nahrstedt v. more burdensome than beneficial to affected properties. even though pets were only inside her home. (g) Local governments like them because increase tax base but not increase in services municipality would provide because homeowner provides more services (landscaping. Court uses unanimous vote as competent evidence to justify eviction.). Must manifest appropriate intent to manifest trust relationship (“given for the use of benefit of another”) (b) Would not fail if unaware of who trustee is (court can appoint) (c) Do not need actual words “trust” and “trustee” (d) Precatory language: avoid if creating trust (reciting of moral intent. serves as fiduciary for benefit of beneficiaries (benees). Property must be delivered to trustee. Trend is to invalidate only if arbitrary or violative of constitutional right b/c buyers agreed to be governed by these terms and entitled to rely on enforceability.

Then. validity of spendthrift restrictions on equitable interests in trust has been recognized in most states (Broadway National Bank v. Trustees have power to get loans based on trust. Just as creditors cannot impose lease on future potential gifts if settlor were still (b) Very flexible. (c) In NY only money needed for support is immune to creditors in spendthrift trusts. Rothko v. i. expressed specific charitable intent but is impossible or undesirable to fulfill. Life tenant can be sued for waste by remainder holders iii. trustee has power of sale. easier to avoid creditors (d) Trusts v.Downloaded From OutlineDepot. contract to sell all the paintings. Adams: where spendthrift clause said that creditors cannot reach any assets until in hands of beneficiary). Life estate difficult to sell interest without permission of other remainders but in trust law. Stamos contract w/ gallery. providing that beneficiary cannot transfer his interest voluntarily and creditors cannot reach it (b) Despite general invalidity on alienation. Not exactly the same tho. ii. v) Changed Circumstances (a) Often in charitable trusts. broad powers of management iii) Spendthrift Trusts (a) Settlor imposes valid restraint on alienation. (c) Discretionary trust: trustee can have flexibility on payment. invest in prudent fashion. Trust interests can be placed out of reach from creditors iv. creditors are free to go after (but it’s a nuisance). Levine’s lack of objection. can be used to get around tax problems. Reis: Trustees set up contract with certain gallery giving exclusive right with very good deal. Where also expresses related general charitable intent. conditions may change in ways that were not foreseeable when created (b) Cy Pres (“so near”): operates where settlor who cannot be consulted. Life Estates i. while life estate holder is not. Terms of agreement alone were not enough to support breach of duty. iv) Trust Fiduciary Duties (a) Held to highest standards of conduct and is personally liable (b) Prudence: must make property productive. (c) Undivided loyalty: can reap no personal advantage from his position nor put himself in situation of possible conflict of interest. Was confluence of events: Relationships. on behalf of people not capable of managing their affairs. Different rules but majority of states look at variety of specific uses of the money and declare that those are impossible for creditors to attach to. may still be fulfilled with some judicial modifications of interests created and trust is not terminated 48 . since benee has vested right in the money while none to gifts in his lifetime.

Conservation Easements f. more interventionalism 2) Corporations and Partnerships: not on the exam CHAPTER IX Law of Neighbors B. Requirements for Covenants to Run Real Covenant Theory Equitable Servitude Theory Third restatement Eagle Enterprises. v. Bruton Varieties of Easements b. Inc. Maretti). Covenants a.Downloaded From OutlineDepot. but court says that dominant intent is improving the world by charitable uses so trust does not fail (Cy Pres) (d) Courts are increasingly expansive in use of cy pres. McLean e. Real Covenants Neponsit Property Owners’ Association. Owens: specific intent to use his notes impossible. Emigrant Industrial Savings Bank c. Inc Blocking sun: no cause for nuisance but was cause when blocking solar collector (Prah v. Rindge Peckham v. Intro Baseball Publishing Co. V. Holbrook v. Inc. Termination of Covenants Bolotin v. 1. Termination of Easements d. Easement? c. 2. Taylor Fontainebleau Hotel Corp. Hot Shoppes. v. Easements a. Inc. Gross d. Inc. Creation of Easements Schwab (c) Wilber v. Moxhay b. Servitudes: encumbrance consisting of a right to the limited use of a piece of land or other immovable property without the possession of it. Timmons Warsaw v. Inc. Misuse of Easements Penn Bowling Recreation Center. v. Chicago Metallic Ceilings. Equitable Servitudes Tulk v. v. Notice and the Common Plan Sanborn v. Milroy 49 . Important contribution is that they are contracts that “run with the land” and bind all future owners of both parcels. Forty-Five Twenty-Five.

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Servitudes: Inability to resolve all conflicts with contracts Justifications: get around problems of bargaining in bilateral monopoly 1) Easement: Owner agrees to waive right to exclude certain kinds of intrusions (run with the land; in rem rights). Gets around problems of bargaining in bilateral monopoly. In between lease (transfer of possession) and licenses (revocable)

General Categories i) Appurtenant: An appendage of a particular tract of land (the dominant estate); carved out of the servient estate; belongs to whomever owns the dominant estate. Parcels usually adjacent. Cannot be switched to In Gross without new agreement. (a) Favored b/c it’s the usual intent and increases land value by more than the decrease in servient land (efficient) while In Gross just decreases value ii) In Gross: Belongs to a particular grantee, not an appendage to a tract; only permissible if for commercial land use (primarily by RR companies). Gives owner right to use servient land but not considered appendage to his land. Assignable if parties intend. Ex: the right to erect a sign on another’s land (Baseball Publishing Co. v. Burton) iii) Appurtenant/In Gross: (a) Transferability: i. Appurtenant: benefits and burdens pass automatically to assignees of land to which they are appurtenant, if the parties (a) intend and (b) the burdened party has notice of the easement ii. In Gross: also transferable unless involves a recreational easement (hunting, fishing, camping, etc.) if the parties so intend iv) Affirmative: Easements begin with affirmative rights to enter land and perform an act on it (e.g., place clothing on lines over land, nail fruit trees onto neighbor’s wall, water cattle at pond on another’s land) v) Negative: Forbid owner of servient parcel from doing something on his land that might harm a neighbor (courts more wary of creating these); much rarer (a) England: limited to four categories (light striking window, air flowing in a defined channel, lateral support of a building, flow of water in an artificial stream); each could be created by prescription; no other categories allowed


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(b) U.S.: not limited to four categories; possible to create other negative easements (e.g., negative easement of view); no negative easement by prescription though vi) Different from Licenses: (a) Licenses are mostly revocable (b) Licenses do not run with the land (c) Although some licenses are irrevocable (estoppel, movies tickets are license) Creation i) Express: Written instrument signed by the party to be bound (because in land, must satisfy Statute of Frauds); if gives orally, grantee has a license; if intention not clear, assume an easement over fee simple if for limited purpose. ii) Implication: Show that land and another parcel were (a) once held in common ownership and (b) at time of severance, the common owner was making an apparent use of the now servient estate for the purpose you now want to establish as a legal right. The use must also be (c) reasonably necessary for access. (a) Example: O owns parcels A and B. Private road crosses A to reach a house on B. O transfers B to X. The road is reasonably necessary for access to the house on B. X has an easement by implication over A. (b) The prior existing use that forms the basis for implication is a “quasieasement” because the use pattern looks like an easement but a unitary owner cannot hold an easement against himself (c) No easement by implication when original owner made no use that was so obvious and continuous to show it was meant to be permanent. No easement by implication if a use is not reasonably necessary for the beneficial enjoyment of land (Schwab v. Timmons) (d) Notice argument against implication: It is so easy to express any limitation to be reserved over land or conveyed with it that the necessity of raising any such reservation by implication is not apparent (Schwab v. Timmons) ???? iii) Necessity: No need to show prior use of the easement, but strict construction of the necessity requirement governs. Strict necessity means that easements by necessity will usually involve cases where the owner (a grantee) is now landlocked. Does not just mean suffering inconvenience (Schwab) (a) Rationale: public policy or parties intended to create but overlooked


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(b) Example: Parcels A and B abut. O transfers B to Y. B is now completely landlocked. A route of access across A is a matter of extreme necessity if parcel B is to be used productively. Y has an easement by necessity. (c) Extinguished: When strict necessity disappears (another road is built, etc.) (d) No easement by necessity if party seeking the easement caused the parcel to become landlocked through conveyance (i.e., grantors may not seek necessity for a retained parcel that is now landlocked) (Schwab v. Timmons) (e) Impeaching your own grant: O transfers A to Y and keeps B for herself. O argues that an easement over A to get to B should arise by implication or necessity. O has impeached her grant and the courts will likely deny an easement. O is in the best position to retain a use in the deed to Y. (Did herself in) iv) Public Easement: States have used custom for public beach rights; NJ uses it as public trust. v) Estoppel: If there is no writing (express grant), prior unity of title between now neighboring parcels and apparent use (implication), or strict necessity, find whether landowner gave oral permission to use land for a certain purpose and substantial expenditure in reliance on that permission was made, without objection (a) A license to use land becomes irrevocable through estoppel when the licensee makes a substantial expenditure in reliance on the licensor’s permission and it would be unfair to permit revocation of the license (Holbrook v. Taylor) (b) Easement by estoppel = irrevocable license (license + interest = irrevocable); lasts as long as necessary to vindicate the owner’s reliance interest vi) Prescription: Stepchild of AP. If there is no writing, prior unity, strict necessity, or oral promise and reliance, consider whether there was use of land for a substantial period of time (for the running of the state’s statute of limitations), and the requirements of (a) actual, (b) adverse, (c) open and notorious, (d) continuous, and (e) exclusive use are met. As opposed to AP, requirements in terms of use and not ownership. (a) Adverse: Majority: Presume the use is adverse Minority: Presume adverse once Open and Notorious is met Minority: Presume permissive use (often based on distinct variables – whether parties are related, land is unenclosed, etc.) (b) Open and Notorious: As with Adverse Possession, may be based on constructive knowledge


Use of road must follow a definite and certain line of travel. except in the event of reasonable and foreseeable changes in use that benefit the dominant owner and/or that occur as technology changes or improves. (d) Exclusive: Greater flexibility than for Adverse Possession (one or more individuals) i. slight deviations and for the same purpose sufficient (Warsaw v. v. Inc. 53 . (c) Continuous: Extent depends on nature/character of the use. abandonment (prolonged nonuse and indication of intent to abandon) ii) One cannot use an easement for land other than the dominant parcel. may be seasonal but not sporadic and occasional. But can claim nuisance if solar panels blocked.Downloaded From OutlineDepot. Since the owner had no cause of action on which the statute of limitations has run. law (gain common ownership). get tax benefit Termination: i) By deed (release/extinguish the easement).com i.). Fountainebleau Hotel: no new negative easement for sunlight unless by express grant. Continuous use of an easement over a long period of time without true owner interference is presumptive evidence of its existence in the absence of mere permissive use (Warsaw v. adverse possession (easement is blocked and dominant owner does not object. Chicago Metallic Ceilings) ii.: No trespass. the use will be enjoined (Penn Bowling Recreation Center. there is no need to show use approaching ownership (e) No negative easement by prescription in the U. If could reasonably be discovered by inspection. Adverse User is using property in the way a party with a granted easement would use it. Servient owner can use the easement as long as does not unreasonably interfere with it. SOL runs). iii) Appurtenant easements may not be expanded beyond the scope defined at the time of creation. no prescription (notice-serving function). Hot Shoppes. would be unfair to give other party a prescriptive right that owner could not prevent from arising. not prescription. satisfied. Issue often comes up with underground sewers/drains. vii) Conservation Easement: Tax incentive: by giving gov’t agency this easement that you will not develop land. Inc.S. if the use is too intertwined. Chicago Metallic Ceilings) iii.

promise to maintain fence Covenants run with the land if conditions are met. Less often prescribe affirmative behavior on part of burdened landowner. Covenant must be in writing (unless implied covenant) (Sanborn) iv) Courts have applied injunction (Penn Bowling) as well as liability (Brown v. other than successive owners. Requirements: (a) Notice requirements: i.Downloaded From OutlineDepot. if want equitable relief must show that covenant qualifies as equitable servitude. (remedy for breach is damages in a suit at law). More in personam than easements because generally do not give rise to rights against third parties. Ex: building use. Privity of Estate: 1) Original parties were in privity of estate with each other (for burden to run) (HORIZONTAL) Horizontal: traditional test required covenant to be part of a lease or deed dividing property between present and future interests (creating simultaneous interest). now any grantor-grantee relationship will do (establishes instantaneous privity) -Courts wanted to be more strict with burden – to keep land free of burdens undiscoverable. Agree to abide by certain restrictions on the use of his land for the benefit of one or more others. More of a governance than easements. since benefits do not adversely affect marketability. Original parties intended for both the burden and benefit to run with the land “This will run with the land” iv. i) Real Covenant : runs with the land at law. Voss) to remedy the addition of parcels to the dominant parcel v) Intensity of use will be assessed according to rule of reasonableness (Penn Bowling) 2) Covenant: Promise regarding use of land (right to insist on use/nonuse) (no duties of forbearance in third parties). To do or not do something. no horizontal privity requirement 54 . building height. Purchaser of servient estate is on notice iii. door color.

T&C: usually satisfied when covenant restricts use of servient land and is of use to owners’ of dominant estates iii. repairing a fence or road. Emigrant Industrial Savings Bank) 2) While a promise to spend money on property affected by covenants benefiting the burdened lots is akin to an affirmative covenant. it T&C the land because it alters the legally enforceable advantages and burdens of the parties as owners of interests in land (Neponsit – very broad view) ii) Affirmative covenants: requires affirmative conduct of the servient owner (e. party need only succeed to some of the interest in the estate Exception: Homeowners’ association: may sue to enforce benefit of covenant even though association succeeds no land owned by original promisee.. (b) Substantive requirement (which restrictions are allowed): i.g. a life estate conveyed from a fee simple would not create vertical privity) Modern: strict test still often followed for burden to run. or mode of the interest conveyed. Modern tests include: affects the quality. The covenant touches and concerns the land ii. rule of reasonableness. Regarded as the agent of the real parties in interest who own the land (Neponsit) -Bona fide purchaser of the land is not bound at law if has no notice of the covenant. value. v. Inc. paying a sum of money) (a) Haywood v. alters legal relations/advantages or burdens of owning tract of land (Neponsit) 1) Compulsory fees for maintenance of public areas appurtenant to ownership of estate touch and concern the land (Neponsit Property Owners’ Association. but an estate that lasted as long as the prior estate) (e. for benefit to run.Downloaded From 2) Subsequent owners in privity of estate with original parties (for benefit or burden to run) (VERTICAL) Vertical: traditional test required an owner to succeed to the entire interest held by the original covenanting party (not the entire area of land.g.. Brunswick Permanent Benefit Building Society (England): burden of affirmative covenant does not T&C 55 .

Downloaded From OutlineDepot. covenant lasts 30 years TERMination of covenants at end of equitable servitudes 3) Equitable Servitude: Covenant (whether or not running with the land at law) where remedy for breach is injunction in a suit in equity i) Requirements: (a) Purchaser of servient estate is on actual or constructive notice at time of purchase (for burden to run) (b) Exception: Negative equitable servitudes may be implied from general plan for development of residential subdivision even if no writing (Sanborn v. Servitude is Reciprocal (similarly binds other lots in subdivision). cannot impose burdens on lots previously sold without i. Gross) iii) iv) Negative: restricts a use which can be made of the servient land To make change to covenant in complex. if arises later. need unanimous approval usually v) Sunset provision: E. affirmative covenants look like perpetual rent or feudal services. Inc. Done b/c purchaser relied on promise of subdivider to restrict other lots ii. If developer had general plan and purchasers had notice of covenants in prior deeds. Negative (forbids some use of land/courts will not imply affirmative) Easements (interest in the land) 56 . iv. court will imply covenant iii. Orders to perform acts require judicial supervision. May be changed circumstances or fear of dead hand control with no benefits (Eagle Enterprises. such as dedicating a portion of each lot to a party wall) (b) Miller v. v. Exceptions: covenant to repair fence on boundary line or driveway (usually when the agreement was prospective and imposed on land of each party a burden.g. Clary (NY court commits itself to the English rule prior to Neponsit): court will not compel grantor to forever operate machinery on retained parcel (c) Reasons courts are reluctant to enforce affirmative covenants against successors: i. McLean) i. General plan must exist at time developer sells first burdened lot within general plan. enforcing an affirmative covenant may impose a large personal liability on a successor while a negative covenant is limited to successor’s loss of investment in the land itself.

com (c) (d) (e) (f) Original parties intended covenant to run with the land The covenant touches and concerns the land No horizontal or vertical privity of estate required Exception (for benefit to run): when a covenant is made for the benefit of a third party. Restatement: also treats both equitable servitudes and real covenants as “covenants running with the land” if there is intent.Downloaded From OutlineDepot. notice. If buys off for 55. (b) No privity requirement for equitable servitudes because. privity of estate is required in equity for enforcement of the benefit by the third-party beneficiary ii) Remedies compared: an injunction may be more efficient overall (a) Ex: A wants to build commercial. A will pay 30 to B and build. A gets 20 gain and B gets 25.” i. compensatory damages. and imposition of liens (d) It is inequitable for the purchaser of a parcel at a price reflecting the burden of a covenant to be able to charge his purchaser the price of unburdened land (Tulk v. it is like an easement. In these jurisdictions. Both are better off. hardship outweighs benefit. ii. B can bargain with A and get 30-75 for the injunction. change of conditions (c) Abandonment: but an affirmative covenant cannot be abandoned (d) Eminent domain: government takes burdened land and condemns covenant. punitive damages. and enforcement does not violate a statute or public policy. restitution. gain of $75 but B will lose $30. owner of benefited land entitled to damages 57 . If liability rules. unlike a real covenant which attaches to an estate in land. If injunction. (c) Restatement treats negative easements and restrictive covenants as both “negative covenants. either before or after the covenant was made. injunctions. an equitable servitude burdens the land itself. nominal damages. Restatement: a court may enforce a covenant running with the land by any appropriate remedy or combination of remedies. In this respect. it cannot be enforced by the beneficiary unless he can show that he acquired title to his land from the original covenantee. Moxhay where buyer of land planned to build even though was covenant prohibiting such) iii) Termination of Covenants and Servitudes: (a) Merger: if burdened and benefited land become property of one person (b) Equitable servitude: estoppel. including declaratory judgment.

cannot be justified by compelling state interest. Taking (of property without compensation) vi) Nonconforming Uses: typically. Encouraged middle to upper income housing and precluded low and moderate income housing. air circulation. Laurel: town faced with rapid growth and wanted to save money on property taxes caused by schools.Downloaded From OutlineDepot. bureaucratic. grandfather nonconforming uses of property in existence when zoning plan enacted. etc. class/racial segregation viii) Exclusionary Zoning: Southern Burlington Country NAACP v. provide services homeowners will want but: can be poor planning. Not effective b/c (a) Nuisance: courts didn’t enforce in all situations (b) Covenants: mostly used for subdivisions. increase value of home. Other courts go further and require affirmative steps. Made no provision for low income housing and court found that patterns resulted in economic discrimination. Township of Mt. factories. not effective everywhere iii) Zoning goal was to plan ideal cities: Resulted in: (a) Segregated land use. although we know now it’s inefficient (b) Single Family Housing. 58 . difficult fire management. health problems for children. led to increase (b) Supreme Court justified with “rational basis test”: rationally related to legitimate public purpose. unfit areas to live. not in violation of due process by diminishing potential value of land. deprives of equal protection b/c no rational relationship to permissible state objective. Ambler: (a) Established constitutionality of zoning. vii) Zoning Policy: controversial: can potentially deal with land-use externalities. Doesn’t need to be the best way to achieve the objective. v) Arguments against zoning: Deprives of due process. Zoning and Other Land-Use Regulation 1) Zoning and other land use regulation: i) Created by state and local law ii) Nuisance and covenant not enough to deal with problems of congestion. accidents. or duplexes if not possible: highest on hierarchy of land uses (c) Open Space (d) Anti-Apartment Bldgs: cause C. Holding: cannot use fiscal reason alone to justify. industry. ix) Religious Land use and Institutionalized Persons Act (RLUIPA): (a) Claims of discrimination and exclusion contend with municipalities’ stated desire to protect tax bases and amenities from religious land use (b) RLUIPA: forbids gov’t agency to impose or implement land use regulation in manner that imposes substantial burden on religious exercise of a person… unless it’s in further of compelling gov’t interests and is the least restrictive means of furthering that interest. No requirement to build low income housing but need to make it possible. housing is a basic right. iv) Village of Euclid v. high costs.

Eminent Domain 1) Intro: i) 5th Amendment: nor shall private property be taken for public use. just compensation. ii) Federal courts have almost never invalidated taking of property for failing public use requirement but economic use justification. v. Denominator Problem 3.Downloaded From OutlineDepot. Temporary Takings 5. Just compensation B. Regulatory Takings – Basic Contours C. Scope of Police Power 2. Government allowed to compel transfer of property rights in return for payment of just compensation (b) Avoids bilateral negotiating problem and compensation avoids extreme difficult for landowner v) Requirements: public use. Public Use requirement 2. CHAPTER XII Takings A. Constantine and Helen Greek Orthodox Church. opportunity for hearing 2) Public Use Requirement i) USSC hold that public use means “public advantage” and that preservation of jobs or taxes qualify. (c) Sts. City of New Berlin: city concerned about use repercussions of allowing church in residential neighborhood (may later revert to non-religious institutional use) and Church sues over RLUIPA and wins. (d) Issues are what constitutes a “substantial burden” (ordinance that wholly excludes houses of worship in residential areas?) and does this legislation go too far in favoring religion. Restrictive usage would be actual “use by the public” not favored by Sup Ct. Litigating Takings Cases A. Eminent Domian 1. trend is changing iii) Kelo v. without just compensation ii) 14th Amendment: Due Process Clause iii) General idea that owners should be protected when costs of improvements should be covered by everyone (compensation) iv) Coase: (a) ED transforms property rule protection into “liability rule” protection. Regulatory Takings – Extensions and Applications 1. Inc. City of New London: Government may use ED to transfer land to private individuals if benefits the public with economic development (but 59 . Problem of Exactions 4.

Can be done through 3rd parties too (cable comp) iii) By physical possession: lose right to exclusion. need ED i. South Carolina Coastal Council: law prevented development on beach after he bought (a) Destruction of all economic value: if regulation denies all economically beneficial uses of land it is categorical taking. regulation deemed taking and requires compensation iii) Tests to determine whether permitted without compensation or taking (ED or police powers): iv) Pennsylvania Coal Co.Downloaded From OutlineDepot.too broad. no matter how trivial the invasion (Loretto). Schoene: State decides that cutting down one tree to save another averts the greater harm and compensates (Coase) 4) Regulatory Takings i) Does not involve physical entry but regulation under police power to protect public welfare (zoning) ii) Regulatory Takings Doctrine: if regulation is especially strong arguments against. advantage to private company. Dis: air rts (b) Average Reciprocity of advantage: not a taking if reciprocal advantages and disadvantages (restricted owner gets some utility zoning) But: Brandeis says this is disregarded when stopping nuisance (c) Protection of public from nuisance harms: if protecting. PA Coal: Holmes: rights to coal. What “property” is damaged (units of analysis)? ii. Brandeis: overall rts iii. physically invades property permanently. Great deference to legislature 3) What is “Taking”? i) Taking title ii) Taking permanent possession. Penn Central: Maj: surface rts and air rts. property value while regulatory takings only chop out some sticks in bundle iv) Different from easements: permanent right to use vs. right to possess v) Miller v. Holmes: damage to one house not public nuisance b/c not common. NYC: mirror image of Penn w diff result (a) Economic Impact/Diminution of value (b) Character of gov’t action: physical invasion or just adjustment of benefits and liabilities of owner (c) Interference w/ reasonable investment backed expectations: does not impair present use and expectations of train station profitability (d) Removes: “preventing nuisance” and “reciprocity of advantage” which were in PA Coal vi) Lucas v. don’t need ED. autonomy. v) Penn Central Transportation Co. v. slippery slope). v. Mahon: (a) Diminution of value: if more severe. unless 60 .

In Keystonethe court said separate support estate is a legalistic notion with nothing to do with how we should define the denominaror. When is property wiped out? Is it when the total value is destroyed or partial? Things to look for (1) physical occupation not in context of easement (2) right to advise property at death.Downloaded From OutlineDepot. (4) rule apply in Dolan In Dolan and Nollan: say that regs requiring dedication of permanent easement of public access would be takings under Loretto. Regulation had more clearly expressed public benefits that the regulations in 61 .com state can justify its actions as preventing common law nuisance (protecting the coast from development does not fall under this) (b) Criticism: Nuisance is too narrow a confine for the exercise of regulatory power in a complex and interdependent society. go to liability rules) v) Quick Take Statutes: transfer title to condemning authority before all contested issues raised are resolved (streamline) to avoid costly delays from lawsuits 6) The Denominator Problem i) Denominator Rule: must compare values before and after Numerator: value of property taken by regulation to the Denominator: value of property before the regulation ii) How do you determine the denominator (for the denominator rule)? Courts argue over how. 5) Just Compensation i) Approaches for estimating (a) Recent transactions in which property in question was sold (b) Recent transactions in other parcels in area (c) Estimating and capitalizing rental value (d) Determining replacement cost of land and improvements taken and adjust downward o reflect depreciation and wear and tear (e) Opportunity Cost of having land taken away: highest and best use of land other than the use proposed by condemning authority (e. subdivision development) (US v. Then came with penn central. and keystone which overruled Penn Coal.g. Miller: Value paid was to be before gov’t authorized the project to avoid windfall iv) Eminent domain typically used when negotiations break down so no true fair market value (failure of property rules. Miller) ii) Problem: no recovery for subjective value owners attach to property Should residential props have higher standard of review? Radin iii) Value in time: US v. (3) rule apply in Lucas—denial of total economic use.

Is there nexus between legitimate state interest and permit condition. said we won’t separate the air rights. Washington Legal Foundation—NOT RESPONSIBLE FOR Palazzolo v. Tahoe-Sierra Preservation Council v. we see the issue is not dead. The takings clause by its terms is self executed (that a 62 .Downloaded From OutlineDepot. is there reasonable relationship to projected impact of petitioner’s proposed developer (Rough Proportionality Test) (Dolan v. The court refuses to accept conceptual severance (that the 32 months is a separate entity). the temporary destruction of value will not be considered a taking. Rhode Island— If you have notice of a regulation prior to acquiring it you do not automatically preclude your ability to challenge the regulation. In Penn Central. County of LA Government’s should we require a period of damages before that regulation is considered null and void. Philips v. there can still be claim without a total diminution in value. It seemed to do away with conceptual severance in the courts. The 32 month period is a small fraction of the whole and therefore is not a taking. 7) The Problem of Exactions i) When apply for building permit. The denominator should be something physical and geographical and temporal for the denominator (which allows the majority to say there is not a per se takings). public path) ii) Exaction must be logically related to specific public need or burden that owner’s building creates or to which it Penn Coal. Tahoe Regional Planning Agency Complete ban of activity for 32 month period. mitigates impact of development iii) Must be essential nexus to dispel suspicion that it’s subterfuge to allow physical occupation of property without paying (Nolan) iv) Test: Is exaction legitimate state interest. That court suggests the notion of complete severance (. While post regulation purchase is fatal to a claim.g. City of Tigard) 8) Temporary Takings i) Temporary and Partial takings also subject to compensation First English Evangelical Lutheran Church v. it may have baring to it (you bought the property cheaper because it was regulated). Like Penn Coal. city may impose condition on development which benefits city not the owner (e. iii) As in Loretto.

Hamilton Bank of Johnson City. that should not automatically deal with regulatory takings. Test: 2 prongs if you want to have a takings claim to be “ripe” for a hearing in a federal court. First English is only controlling regarding remedies (they assume there is already a takings and just comment on the remedy). A constitutional right to compensation that is only violated if you have the very goverrnemnt’s arm that is taking it away from you declare it a taking and even then the federal court may not review it. 9) Litigating Takings Cases Williamson County Regional Planning Comm. 3 precedents that do not apply: First English sets down the rule that L owners who believe that their property has been taking by government regulations may seek damages from the government for that temporary takings. Tahoe-Sierra Preservation Council v. Tahoe Regional Planning Agency (2) A temporary taking of value is not a per se taking and must be evaluated under the ad hoc balancing test of Penn Central. • By the time you do this.g. sovereign immunity). The moratorium on development. 63 . it trumps all other kinds of limits that can be placed on judicial relief (e. that if you do what we say and then you will not be able to bring it to the supreme court. The precedent that is available to the court in context to physical takings. You must do 2 things (1) A final decision by a government entity in charge of enacting regulation. It is setting up a false bargain. the fitness for issues of review is a federal question. City and County of SF Is devestaing on when you can bring a takings claim and in what jurisdiction. (2) If you want to go to the federal courts with your takings claim. It applies to the states through the 14th amendment. Here is a moratorium. such as issue and claim preclusion will do away with 99% of the case. you must first bring an as applied takings claim in state court and after that your claim will be ripe. Lucas doesn’t control here because that case only found that a regulation that permanently denied an owner an economic and productive use was a sovereign government must be compensation).Downloaded From OutlineDepot. Because of this nature of the clause. V. San Remo Hotel v. For takings law. Ripeness is necessary to prevent cases that don’t have a concrete injury from being heard.

Eg. Nuisance and servitudes  servitudes. Ex. Possession started with original acquisition and the timeline  labor theoryproximity rulesIP (is this 1st possession or 1st possession + creativity)accession doctrine. licenses v. Leases v. Also switching from proerpty to liability rules in an adverse user who gets easement (which rule would be better). How do you look at them and decide which is best to solve a problem. Then you have courts tend to view implied easements with skeptism. Trusts v. The language in the easmenetn is important. some have evolved into others into years. Look at the outline and see other vehicles that will get you across the course. life CLASS REVIEW: Policy question and ½ dozen short answer questions is where to be creative. Question for short answer: Chose 2 areas of property law that utilize possession in different ways and which is better? 64 . Does the material translate into other contexts.g. the languages must be … Parties creating easements and impeaching their own land. Is 1st possession a sufficient basis to build property rules.g. 4 negative easements allowed under CL. 4) Role of property rules and liability rules. NOTICE. the labor theory? 1) A lot of tools with dealing with problems. Prescriptive easements that approach a level of comprehension that it is almost AD but doesn’t have as many requirements. Could we build it around something else. Than you have moving into licenses.Downloaded From OutlineDepot. --2) Unwritten rules and custom. life estates. 3) Various times you see attempts to plug gaps in existing laws what we want to do (e. Covenants seemed odd because it was one of the few areas trending more towards property than a contract based rights. e. Fair housing act when looking at other methods available before the act was enacted). Why do we have both? Which one do courts use? Servitudes at the end of the day are important stuff(A) what is the difference between the two and waiving the rights to exclude (easements) and promises (covenants). Then there is compensation for easements.

what will he be able to collect? The key rule to solve this problem. Prescriptive easements similar to AP (except AP vs. For Coase. just be clear what it is saying. Given the transaction costs. Adverse Use). When somebody assigns with a L’s permission. Given the fact that there are transaction costs. that his how we make one decision over another (ppl making decisions vs.1 hour apiece one law/policy question . PT assigns to T1 (not assumption of any of the responsibilities) and now T1 assigns to T2 without the L’s permission and T2 defaults. how do we mimick in a world that does not have transaction costs. with the L’s permission. gov’t regulation. T1 is no longer in privity of estate (which is T2) and doesn’t have privity of contract (which is T).Downloaded From OutlineDepot. two issue-spotting questions . firms (who minimize transaction costs). Assignment-Sublease: L leases to PT term of years 5 years for $900 a month and the T covenants to pay rent and not to sublet or assign w/out permission of the L. It assumes reciprocity of causation. The future assignement to T2 will be allowed.15 minutes 30 minutes extra to plan your answers 65 . all subsequent assignments are ok unless the L explicity rejects all future assignments. it doesn’t translate well outside of nuisance. use that soemnoen with real ownership would do (AP). The broader point is that entitlement doesn’t matter because ppl will bargain ot the same number if no transaction costs. The REP does applies to trusts (but some states now allow for it). L sues T1. you are focusing on use that would be akin to what someone holding a real easement would do (PE) vs.30 minutes three short essay and/or problem questions at 10 minutes apiece one short essay . The difference would look like that for any of the 5 prongs.