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Property Outline Prof. Crawford Fall 2011 I. What is property? a.

Definition: Property as an absolute right against the world versus property as a collection of rights (bundle of sticks) with content that varies according to context and public policy choices. b. Trespass to Land: Any intentional intrusion that deprives another possession of land (even if only temporary) i. Elements of Trespass: 1. Must be intentional 2. Physically enters the property 3. No harm is necessary 4. See Jacque v. Steenberg Homes a. $100,000 punitive damages awarded for case of intentional trespass. ii. Essentialist position: Right to exclude is a fundamental property right. Harm in every trespass even if no actual damage to the land since it infringes upon the rights of the landowner. c. Trespass/Nuisance Divide i. Trespass: See Hinman v. Pacific Air Transport, where a landowner tried to sue for trespass against an airline flying over his land. 1. Ad coelom doctrine: Own everything below and above your land. Deemed impractical in this situation 2. No property right to airspace except so far as one may actually possess and make use of it. 3. Trespass only if the owner is actually in possession 4. See later case of United States v. Causby, Supreme Court held that legislation granting federal government control of the airspace no a taking. 5. Bundle of rights view: Airspace above ones land one of the sticks that can be removed. ii. Private Nuisance: See Hendricks v. Stalnaker (neighbors wanted to use their own land for incompatible uses of building a well vs. building a septic tank) 1. Nuisance: Anything which annoys or disturbs the free use of ones property, or which renders its ordinary use or physical occupation uncomfortable 2. Elements: a. Intent (know or should know that something would interfere with use and enjoyment of anothers land) b. Harm: Interference with anothers use and enjoyment c. Substantial d. Unreasonable (gravity of harm outweighs social value of the activity alleged to have caused the harm)

e. When neither use if unreasonable, must balance interests of the landowners d. Problem of Social Cost: Property and Equity i. Coase Theorem: 1. Demonstrates the importance of transaction costs in determining how rights and resources are distributed. 2. In a world without transaction costs, parties will negotiate to maximize wealth. Baseline entitlement is irrelevant; two parties will find the most efficient joint use of the resources. 3. Courts should look to give entitlements in a way to minimize transaction costs, i.e. try and resolve cases in the most efficient manner possible 4. Criticisms of Coase: i. Endowment effect: People tend to overvalue what they already own ii. People dont negotiate well: See Jacque. iii. Assembly problems: see Hinman, cant expect airlines to negotiate with every landowner. iv. Bilateral monopoly issues (since only one other party to negotiate with) v. Free-riders & Holdouts ii. Repeated Trespasses: a. See Baker v. Howard County Hunt Club b. Equitable relief, e.g. injunctions, can be granted in cases where monetary damages would be insufficient to compensate past trespasses or deter future ones. c. Requirements for Equitable Relief i. No adequate remedy at law ii. Clean Hands d. Factors a court may consider i. Is harm irreparable? ii. Are the injuries intangible & incapable of measurement? iii. Likelihood of multiple trespasses iv. Would public interest be disserved? e. Equitable Remedies: i. Types of Injunctions 1. Prohibitive: Not to something 2. Mandatory: Do something 3. Declarative: Relief explaining exactly what the legal rights are in a given circumstance. ii. Violation of Injunction: Party can be held in contempt (fine or jail) f. Property and Equity: i. Building Encroachments: 1. Absolutist position a. See Pile v. Pendrick

i. Harm was minimal and unintentional, cost of removal substantial. 1. Good faith irrelevant ii. Injunction granted, encroachment must be removed regardless of cost paid by the encroaching party. b. Majority Rule i. See Golden Press, Inc. v. Rylands: Similar to Pile, a case of unintentional encroachment. ii. Factors: 1. Good Faith: Must act in good faith to have possibility of paying damages rather injunction and mandatory removal. 2. Degree of Trespass: In this case minimal 3. Burden on Defendant: How significant is the cost of removal compared to the degree of trespass? c. Restatement of Torts: Where Ds encroachment is unintentional and slight, Ps use not affected and his damage small and fairly compensable, while the cost of removal is so great as to cause grave hardship or otherwise make its removal unconscionable, mandatory injunction may be properly denied and P relegated to compensation on damages. d. If encroachment is deliberate, i.e. a willful and intentional taking of anothers land, equity may require its removal despite the costs. e. Good faith improver act in CA: not only did D act in good faith, but were they negligent in failing to get a survey done? ii. Property versus Liability Rules: 1. Calabresi and Melamed (modes for protection of entitlements) a. Property Rules: (Holder must consent before entitlement is transferred) Supports injunctions i. Must buy in voluntary transaction ii. State lets parties decide how much entitlement is worth iii. Consistent with Coase Theorem b. Liability Rules: (Court can take away entitlements and award damages) Monetary damages instead of injunctions i. Better for cases of high transaction costs iii. Ex Ante / Ex post 1. Ex Ante: Analysis of a situation before some critical event: Determining fairness by policy concerns a. Focuses more on incentives and future conduct 2. Ex Post: Analysis of a situation after some critical event: Thinking back about fairness and rights a. Focuses more on fairness and distributional concerns b. Courts naturally drawn to this position since its how controversies are presented to them g. Restitution Unjust Enrichment (non-bargained for benefits)

Elements: 1. An enrichment to D 2. At the expense of P 3. Under circumstances that are unjust ii. Mistaken Improver 1. See Producers Lumber & Supply Co. v. Olney Building Company a. Facts: D mistakenly builds house on a lot that he sold to P, negotiations failed, P destroys house. b. Rule: It is only when a person places permanent improvements upon land belonging to another in a good faith belief that he is the owner of the land, that he has a remedy. c. D loses because he came into court with unclean hands, he resorted to self-help and in the process committed waste. 2. Normal Remedies for Mistaken Improver (good faith): a. Let the owner keep the land and pay encroacher its value (equitable award of restitution) b. Transfer the lot to the encroacher for the fair market value of the land itself c. Sell the property at auction and divides profits accordingly d. Can remove the structure if possible 3. Old Rule versus New: a. Old Rule: In cases of mistaken improvement, the improvement belongs to the landowner, who can: i. Keep it ii. Get an injunction for removal b. New rule: Good faith (and non-negligent in CA) improvers can seek restitution, otherwise the landowner is unjustly enriched II. Original Acquisition: a. Tragedy of the Commons 1. Open Access: a. No one hold the rights to exclude others from using the asset. b. Access to all members of a particular community or jurisdiction, but not to all outsiders. c. Utilization involves a complex bundle of rights, but entry is free and users have neither the rights nor incentive to manage the resource and invest in improving it. d. Efficient when there are no net benefits from establishing effective exclusive rights and such conditions often emerge at the margins of complex property rights. i. Problems of Open access: 1. Supply side: Over- use of resource; no incentive to invest will lead to depletion rather than growth. Returns likely to be negative because investors cannot exclude others from collecting benefits.

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2. Demand Side: needs are large relative to the resource available, the lack of incentive leads to depletion, which will lower its economically usage to zero ; individuals don't look at joint wealth. Picking unripe fruit, too many fishing boats: if grounds are crowded, a new boat may be able to catch fish, but it will result in reduce profit for all other boats by an even larger amount and generate a net loss . Over use 2. Common Property

a. A group if insiders control the use and management of the resource and holds exclusive user rights, which outsiders do not enjoy. i. Common property as a solution: 1. When resources are scarce and the number of potential entrants is large, exclusive rights are usually a necessary condition for avoiding excessive use. 2. Private owner to control resource and use prices to regulate access => result in only normal returns 3. Solution to overuse: creating a new type of property individual transferable quotas (ITQs) that restrict the overall level of access to the fishery and yet are transferable, so individuals can exit and enter from the industry. Alternatively, having state control of resource and use prices to regulate access. i. ii. iii. iv. No legal mechanism for excluding people from Open Access areas, but sometimes impractical, (e.g. deep oceans, outer atmosphere) Tragedy of the commons can lead to overuse of communal resources, both supply and demand side factors Commons dont necessarily equal Open Access Potential Costs: 1. No incentive to cultivate / replace resources 2. Extraction not time optimal (e.g. picking fruit before its ripe) 3. Overuse / unsustainable (e.g. animals hunted to extinction 4. Costs dont necessarily apply in every case (e.g. Alaska blueberry jam) May provide an argument for regulation, e.g. hunting licenses or fishing quotas.
Open access Exclusion Governance None None Common property Non-members Norms/ Regs Private property All but owner Owner despotism/ contracting

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b. First Possession: i. When is first-in-time possession established? i.e. point of capture

Intent to control Notice (physical demonstration of ownership) Labor (creation of value, exploitation of a resource) [labor theory / Lockean view] ii. Wild Animals 1. How to determine ownership? a. Broad Principles (see Pierson) b. Custom of Community or Industry (see Ghen) 2. Pierson v. Post: a. Facts: P was hunting a fox with hounds, D, with full knowledge of Ps pursuit, intervened and took the fox. b. Rule of Capture: Whoever mortally wounds/captures a wild animal owns it; requires: i. Deprivation of Natural Liberty, AND ii. Certain control by their pursuer c. Mere intent doesnt establish a legal right d. Requires possession at the time of control or inevitable control (i.e. mortally wounding the animal) 3. Ghen v. Rich: a. Facts: Hunting fin-back whale with bomb lances, sink then later rise to surface, identified by lance. D found whale and sold it at auction after P killed it. b. Rules: i. Bomb-lance holds the whale: If you kill it with clear proof, then its yours ii. Fast-fish, loose fish rule: Whale must be attached to the boat iii. Iron holds the whale: Whoever hits it first with their lance and is in pursuit owns it. iv. Factors to consider: 1. General maritime law 2. Universal custom that doesnt conflict with law 3. Case is a very limited application (e.g. only fin-back whales) 4. Industry will fail if rule is changed c. Holding: Custom applies in this case. Whaler who makes the kills owns it since the industry depends on this approach. 4. Keeble v. Hickeringill a. Facts: P makes money by catching ducks with his duck decoy pond, D maliciously fires gun on his neighboring property to scare away ducks. b. Rules: i. Malicious Hindrance: Person who maliciously hinders another person in their trade or livelihood are liable for hindering them

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1. Even though P never had possession, it was still a willful disturbance. ii. Fair Trade: People have right to engage in their trade and law protects fair competition (setting up a business next door is ok) iii. Benefits of Fair Competition: 1. More goods and services with better prices 2. Wrong to purposely harm people without gaining anything 3. Protect activities that benefit social welfare. c. Ratione Soli issue: Do you have a right to the animals on your land? d. Holding: P may recover for disturbance, but no loss of the ducks since its impossible to measure the cost of those that flew away. e. Rule: An action can lie for malicious (and wasteful) interference with preposessory interest. iii. Salvage Claims 1. Abandoned or Lost Property: a. Property is abandoned when an owner manifests an intention to relinquish all future claims of possession or ownership b. Eads v. Brazelton: i. Facts: Riverboat with bars of lead abandoned, P market area with buoys but left, D came and raised the metal. ii. Rules: 1. Elements of Possession a. Due Diligence: Clearly positioning yourself to take it and diligently workings towards consumption (notice and intent insufficient) b. Abandonment: Owner relinquishes all claims 2. If not abandoned, salvor gets a generous proportion of the value without ever owning it. iii. Holding: Although P marked the spot and intended to take it, he did not exercise due diligence, so the lead belongs to the person who put in the efforts to raise it. iv. Splitting Entitlement: 1. Popov v. Hayashi: a. Facts: Bonds record home run ball. Usual rule is ball is abandoned once it leaves the field. Popov caught ball in his glove before mob assailed him, ball then rolled away where it was picked up by Hayashi b. Rules i. Split Entitlement

c. Discovery i. Johnson v. MIntosh (1823): 1. Normally, would trace back the chain of title to see the last legitimate conveyance. 2. Native Americans (NA) sold land to Ps ancestor, then later, NA grants land to US government. US sells to D. 3. Rules a. Discovery: Unique right to possess an unclaimed thing. b. Nomo Dat Non Quod Habet Principle: Cant give what you dont have c. Dominion: Established by discover/conquest trumps the right to occupancy given to the natives. d. Labor theory: NAs werent using land since not farming, so no dominion. e. Necessity: Necessary to not completely upend the US property system, way to justify status quo. f. Reasoning: i. Reliance upon history ii. Disruptiveness of resettling iii. Prudent to preserve court legitimacy 4. Holding: NA incapable of transferring absolute title to the land because they were merely occupants, never had actual possession. d. Accession i. Principle of Accession: Where ownership of property is established by prominent relationships with objects that are already our property, e.g. fruit of trees, offspring of cattle. ii. Types: 1. Increase 2. Accretion 3. Fixture 4. Accession Doctrine 5. Ad Coelum iii. Doctrine of Accession: Common law doctrine: Someone mistakenly takes up a physical object that belongs to someone else, and transforms it

1. Exclusive Pre-possessory interest P had a right to be allowed to complete the catch without interference. 2. Exclusive first unambiguous possession ii. Both have superior claim against the world, therefore ball sold at auction and $ split. c. Holding: Both P and D own it equally, since P wouldve likely had first full possession if no interference, and D, who had no part in the mob, first to unambiguously establish possession. Sold ball and split equally.

through their labor into a fundamentally different object, see Wetherbee case iv. Doctrine of Increase: General rule absent agreement to the contrary, e.g. offspring of cattle. v. Wetherbee v. Green (1871) (action of replevin is retaking property) 1. Facts: D cut down trees thinking they were his, made them into barrel hoops, Ps action for replevin to get all the barrel hoops. Timber worth $25, hoops worth $800. 2. Elements to determine ownership in Accession: a. Intent: Good faith / Bad Faith distinction, AND i. Bad Faith: Improved item must revert back to the original owner. ii. Good Faith: May keep it if labor significantly improves the item. b. Fundamental transformation of the Object: Significance and value to determine title i. Either original materials cant be traced, or there is a significant increase in value. ii. Labor insignificant and original object prominent? Title stays with original owner iii. Labor prominent and original object insignificant? Title goes to improver c. Factors in determining significance or prominence of improvement: i. Improver significantly multiplied the value of the original product, e.g. wood into a piano. ii. Transformation of the product is of significant value or important to the improver (e.g. beam in a house from timber taken in good faith) d. If title goes to improver: Improver must pay damages equivalent to the fair market value of the raw material (pretransformation) to the original owner (liability rule for good faith improver) 3. Holding: D took the wood in good faith and improved them 32 times in monetary value, ergo D can keep the hoops and pay P for the raw materials. vi. Accession in Patents: 1. Minor Improvement: to original invention = infringement 2. Significant Improvement: to original invention = still infringement on patent but entitled to a patent of their own. 3. Radical Improvements: Exempted from liability to the original patent holder. e. Ad Coelum Rule: i. Edward v. Sims (1929)

Facts: P discovers cave on his land, makes into public attraction, neighbor sues for underground trespass. Trial court orders survey, P seeks writ of prohibition. 2. Rules: a. Ad Coelum Rule: Whoever owns the surface of the land owns to the center of the earth to the sky b. Unless there is a prior division of estate, owner of land in US is entitled to free and unfettered control his own land upon and beneath the surface, but not to all land above after US v. Causby (1946) c. Subterranean rights can be severed. 3. Holding: Ad Coelum applies, so survey must be done to be sure P isnt trespassing. 4. Dissent: Only should have rights to what you can subject to dominion and use. Since only access to cave is under Ps land, he should own the whole cave. f. Accretion Doctrine: i. Accretion doctrine: When natural forces gradually shift a river (or any navigable water) and cause the adjacent land to advance (accretion) or recede (erosion), the owner of the adjacent land gains or loses, respectively. ii. Avulsion: A sudden perceptible change in a river, border does not change in that case. iii. Nebraska v. Iowa: 1. Facts: Border between N and I determined by Missouri river, which gradually changes course over time. 2. Accretion: g. Fixtures: i. Definition: When a thing that was once removable chattel becomes somehow attached to the premises. ii. Factors: 1. Threshold issue: Requires some degree of attachment 2. Degree of Physical attachment 3. Usage (custom/practice) 4. Intent: a. Testimony re: secret thoughts not probative b. Intent inferred from objective circumstances. i. E.g. actual use, evidence of statements at time of installation. c. Presumptions: i. Owner purchase = Fixture ii. Tenant purchase= Personal Property iii. See Strain v. Green (1946) 1. Facts: Previous owner tried to take water heater, mirrors, and other items from the property, purchaser sued.

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Holding: Court found that sellers secret intent didnt matter, the water heater and blinds were fixtures and shouldnt have been removed. h. Adverse Possession: i. When an owner sits on their right to exclude, and the statute for challenging the original unlawful entry expired, original owner (TO) is barred from asserting the right to exclude and there is a new title in the adverse possessor (AP) ii. AP becomes the new TO, can exercise the right to exclude against all the world, even the original owner. iii. Majority Rule: Lessee of Ewing v. Burnet (1837) 1. Facts: Man sells plot of land twice, one of the owners possesses the land adversely sues other owner to clear title. P has older title, D lived across the street, paid taxes on lot, brought actions against trespassers, sold rights to dig gravel 2. Rules: a. Elements of Adverse Possession, must possess for the statute of limitations period, possession that is: i. Actual: Actually possessing and asserting dominion over the land for SOL period ii. Exclusive: Excludes the true owner. iii. Open and Notorious: Giving notice to outside world and obvious youre claiming possession iv. Continuous: Consistent occupation throughout SOL v. Adverse: Under a claim of right (i.e. no permission from owner) b. Unnecessary elements: i. No need for fence, building or other improvement if land isnt suitable ii. Residence is unnecessary iii. Use it for occupational purposes or cultivation 3. Holding: Since D actually, exclusively (TO didnt visit land), open & notorious (public acts of ownership suffice: everyone in area thought it was his), continuous for the whole SOL, and adverse under a claim of right since he wasnt the TO, ergo D now becomes the TO iv. Rationales for Adverse Possession: 1. Personhood: Possessor may have developed reliance on the property through long-standing possession. Losing something that one already possesses relatively more painful than not getting something to dont already own. 2. Penalty: Designed to discourage TOs from sleeping on their rights. Private property requires gatekeepers to protect resources/land from abuse. If gatekeeper fails their job, the resource can be looted as in a open access commons. AP seen as firing bad gatekeepers and replacing them with more eager ones.

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Efficiency / Reduces Transaction Costs: For determining title to assets that last a long time, e.g. land, which can accrue various potential claims. If you had to investigate every claim no matter how old, it would impair functioning of markets and burden courts. Costs of proving/disproving claims invariably increases over time v. Adverse Possession Against the Government: 1. Presumption that AP doesnt apply 2. Historically government has treated squatters generously 3. Some states allow it, e.g. CA, but: a. SOL is twice as long b. Cant AP land for public use vi. Role of Good Faith: See Carpenter v. Ruperto (minority rule explicitly requiring good faith) 1. Facts: AP knowingly extended yard into neighbors cornfield, used it as her own for 20+ years. Marginally improves it. But bad faith, since she always knew it wasnt her land. 2. Rules a. Minority Rule: Few states require good faith in AP to gain title. Most states dont make good faith a requirement b. Objective facts usually much more important that subjective intent for AP c. When knowledge of lack of title is accompanied by knowledge of no basis for claiming an interest in the property, a good faith claim of right cant be established. However, courts sometimes do tend to look more favorably on good faith actors in close cases. 3. Holding: She satisfies all the elements of AP, but her state (IA) requires good faith in AP, so her claim is denied. vii. Tacking: Howard v. Kunto (1970) 1. Facts: Deeds of 3 properties didnt correspond to where they build their summer homes, they sue to take others land 2. Rules a. Must meet all AP requirements i. Sufficient Continuity: Sufficient when the land is consistently occupied during certain times of the year (e.g. winter for winter homes, summer for beach homes). Helps if there are permanent improvements on the land, e.g. home and dock. b. Tacking: Adding ones own period of land possession to that of a prior possessor to establish a continuous AP for the SOL period. c. General Tacking Rule: Tacking of AP is permitted if the successive occupants are in privity (i.e. contractual relationship) (e.g. sale, gift, running of deed between parties suffices)

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d. By limiting tacking to situation in which successive APers are in privity of estate the court permits tacking when A enters adversely and then sells to B who sells to e. Tacking of AP from pervious owners is permitted if it was intended to be in the deed and mistakenly omitted from the description (such as claiming more land than was in the deed.) 3. Holding: Since owners occupied their tract during the summer months and created improvements on the land, that constitutes uninterrupted possession. Also actually, exclusively, open & notoriously, and adverse under a claim of right, so since all successive APers were in privity, can add all the years up to satisfy the SOL period. viii. Disabilities: 1. Typically, state statute provided that the SOL is tolled for owners suffering from certain narrow class of disabilities, including being under age, insane, legally incompetent, or sometimes in prison at the time the APer enters the property a. Disabilities arising later usually do not affect the running of the SOL period b. Disabilities in the same of successive owners cannot be tacked i. Sequential Possession i. Multiple persons serially claim property on some theory other than purchase or gift. ii. Property rights may be good against the world, but disputes over property usually take the form of A v. B, and courts generally only ask only as between A & B who has the superior title iii. Good faith threshold may be crucial to injunction order (clean hands)(See Baker v. Howard County Hunt Club), or not to order an injunction and use a liability rule instead (see Golden Press) iv. F1 v. C1, True owner vs. finders vs. convertors 1. Armory v. Delamirie (1722) 2. Facts: Chimney sweeping boy finds jewel, brings it to jeweler to appraise, apprentice takes jewel from socket and only returns sockets 3. Rules: a. Finders right subordinate to true owner, but more rights than anyone else b. Finders technically bailees, supposed to be holding item in trust until SOL runs out before selling/converting. 4. Holding: Jeweler must either return jewel or jury will determine value by most expensive jewel that could fit in the socket. 5. Rationale: Protect peaceful possession. v. F1 v. F2, Finder 1 versus Finder 2 1. Clark v. Maloney (1840)

2. Facts: P found logs floating in river, moored them, D later took them claiming he found them in river. Action of trover used to recover value of personal chattels that have been converted. 3. Rules: a. General Rule: First finder of chattel may keep the item against everyone but the true owner 4. When not abandoned, loss of chattel does not change right of property. So, previous owner has more rights than subsequent finders or convertors. 5. Holding: P showed better title to the logs since he never abandoned them, so he may keep them against all the world except for TO. 6. Rationale: Desire to create a stable rule, splitting entitlement would create confusing precedent. Deters pretend findings, and also prevent excessive caution in use/disposition of property. vi. C1 v. C2, Convertor 1 versus Convertor 2 1. Anderson v. Gouldberg 2. Facts: P cut down logs from another persons lot, Ds claimed the logs came from their bosses land, which it hadnt. 3. Rules: Even when a person wrongfully obtains property from another, the first convertor still has better title to the property than anyone else (including other takers) but still subordinate right to true owner. 4. Holding: Even if a person wrongfully takes anothers property, the bad faith taker still has more right to the chattel than subsequent finders/convertors. vii. Conversion and SOL: 1. See Songbyrd, Inc. v. Estate of Grossman 2. Facts: Reps of Songbyrd request tapes back several times, decades later Grossman licenses music. 3. When does the clock on SOL start running for conversion? a. In NY: i. Songbyrd: At the moment of conversion ii. Guggenheim: Carves out exception for action in replevin against good faith purchaser. Clock starts when TOs demand to return the goods is refused. Basically exception for stolen art. b. In NJ: Clock starts when TO discovers, or by reasonable diligence shouldve discovered, the facts forming the basis for the cause of action. 4. Holding: Songbyrd loses case, because SOL starts when conversion happens, not when a request is made for the chattels to be returned. 5. Public Policy: NY rule doesnt make much sense, because it basically treats thieves less harshly than good faith purchasers.

6. Majority Rule: A thief who intentionally conceals his/her identity is estopped from asserting defense based on SOL. III. Owner Sovereignty and its Limits a. Protecting the Right to Exclude i. Civil Actions 1. Developed out of writ system a. Trespass (used to vindicate the interest that a person in actual possession has in exclusive possession of land) b. Ejectment (used to vindicate the interest of a person who has title to land against a person wrongfully in possession) c. Detunue (When Ps alleged unjustly detained specific goods remained in Ds possession) d. Trover (to allege that D had wrongfully converted Ps goods to his own use) e. Replevin (originally used when a landlord seized personal property of the P for unpaid rent) f. Trespass to chattels (when the D interfered or injured the property in some manner falling short of conversion while it remained in the property of P) 2. Principal actions for protection of personal property today are: replevin, conversion, and trespass to chattels. 3. Intel Corp v. Hamidi (2003) a. Facts: D sent out mass emails to Intel employees over the company intranet complaining re: Intels bad business and hiring practices. Tried to block Hamidi but failed, now suing for injunction b. Rules: i. Trespass to Chattel requires injury to: 1. The owners right of possession 2. Harm the value of the personal property (e.g. the computer itself) ii. Decisions finding electronic contact to be trespass to computer systems generally involve some actual or threatened interference with the functioning of the computers, e.g. malware, viruses, or Trojans that materially harms computers, then theyll likely grant injunction. iii. Theory of Impairment by content: Some servers were able to sue spam companies because of the large amount of spam actually impaired functioning of their servers (property) and were granted injunctions. Here, no discernible difference in performance of Intels computers, so cant succeed on impairment. c. Holding: Intel retains its right to exclude people from its intranet, but they cant get an injunction w/o showing injury to

ii. Self-Help 1. Permitted to greater or lesser degrees to vindicate the right to exclude 2. Right to exclude Right to injunction a. Courts are unlikely to order injunctions or other remedies that do not accomplish much (see Hamidi) b. Courts also unlikely to be too liberal with self-help remedies as they resemble lawlessness (See Berg) 3. A person in possession of property can generally use reasonable force to prevent or terminate an unlawful entry or other trespass upon land or a trespass against moving property. 4. Berg v. Wiley (1973) a. D leased property to P for a restaurant, reserved the right to retake possession should the lessee fail to meet lease conditions; P broke lease, D locked P out when she left for the night and re-let the property b. Rules: i. Traditional Rule: Landlord may rightfully use self-help to retake leased premises from a tenant in possession without incurring liability for wrongful eviction provided 2 conditions are met: 1. Landlord legally entitled to possession when a tenant holds over after the lease term or where the tenant breaches a lease containing a re-entry clause. 2. The landlords means of re-entry are peaceful. ii. Modern Rule: Self-help is never available and must use judicial process to dispossess a tenant whos in possession and has not abandoned or voluntarily surrendered the premises. iii. Damages awarded to tenant for wrongful eviction: where landlord either has not right to possession or nonpeaceably removed the tenant or both. c. Holding: P did not abandon or surrender property, Ds entry not peaceful, only could courts. 5. Williams v. Ford Motor Credit Company a. Facts: Ps ex-husband stops car payments; repo men take mustang in the middle of the night w/ little objection b. Rules: In repossession after default a secured party may proceed to take collateral property without judicial process if this can be done w/o breach of the peace c. Holding: No breach of the peace when P neither gave permission nor forcibly objects. Ford had right to take their car, but ex-husband must reimburse ex-wife.

the chattel or their possession of the chattel. No such thing as nuisance to chattel.

b. LIMITING the Right to Exclude (necessity, custom, public accommodation laws, and antidiscrimination laws) i. Necessity: Ploof v. Putnam (1908) 1. Facts: P caught on lake in sailboat during storm, moored on Ds dock, Ds servant unmoored the boat; ship crashed onto the shore destroying it and hurting those onboard. 2. Rules: a. Necessity: An inability to control movements in the proper exercise of a strict right that justifies entries upon land and interferences with personal property that would otherwise be trespasses (everyone bears own loss) (functionalism) shift in entitlement out of necessity i. Animals: cannot be withdrawn instantly, allowed to trespass to drive off sheep as long as D does best to recall dog. ii. Highway Obstruction: Traveler may pass upon adjoining land out of necessity without being a trespasser. iii. Save goods: May enter anothers land to save goods from being destroyed by water or fire. iv. Save human life: May sacrifice anothers property to save oneself or another. 3. Holding: Because of necessity to save life, P had right to moor on Ds dock. D is liable for the damages and injuries that resulted after unmooring the boat. 4. Vincent v. Lake Erie Transportation: D docked his boat during storm (court held that D was justified in docking, but must pay for damage to the dock) ii. Custom: McConico v. Singleton 1. Facts: D hunted on Ps unimproved rural land w/o explicit permission from D. 2. Rules: a. Custom: Something well known and universally exercised for a long time, license may be implied form habits of the country i. When custom applies, trespass permitted, even with landowner protest. b. Posting Laws: People may hunt on rural land unless prominent sign prohibits c. Fencing-In Laws: Owner of livestock must fence in to protect neighbors. d. Fencing-Out Laws: Landowners must fence out harmful livestock 3. Holding: No injury to land so customary regime of right to hunt on unenclosed and uncultivated lands holds. iii. Public Accommodations 1. Owners of public accommodations have a much more qualified right to exclude

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Subject to a general duty of nondiscrimination among customers a. Obligation to serve any person who requests service, provided it was available (cannot refuse service)) b. Must charge customers only reasonable rates for services they provide i. Different customers can be charged different prices as long as each fell within zone of reasonable charges. Definition of public accommodations expanding (closely tied with Civil Rights Act) a. Times of yore: inns, common carriers, victuallers, services provided by craftspersons. b. By 19th century: Just inns and common carriers c. Today i. NJ Any property opened to the public in pursuit of owners property interests. ii. Illinois Same as 19th cent. Uston v. Resorts International Hotel (1982) a. Facts: D excluded P from their casinos for card-counting b. Rules: i. Balancing of Interests of the property owner and the patron (right to exclude vs. right of access) ii. General Principle: The more private property is devoted to public use, the more it must accommodate the general public and the less it can exclude iii. Public Accommodations Duty: Not to act in an arbitrary or discriminatory manner toward a person on their premises. Also, usually duty to remove disorderly or otherwise dangerous people from the premises. 1. Applies to all property owners who open their premises to the public iv. Exceptions (when public accommodators may exclude) I.e., disorderly or intoxicated. 1. Disrupts the regular and essential operation of the premises; OR 2. Threatens the security of the premises and its occupants c. Holding: Absent regulation making technique against the rules, cannot exclude P. State v. Schmidt a. Facts: Distributing literature on a private university campus b. Rule: When a property owners open their premises to the general public pursuant to their own property interests, they have no right to exclude people unreasonable. (weak right to exclude and strong right to access.) State v. Shack

a. Reversed trespass conviction of attorneys and social workers entering property to assist farm-workers b. Strong right to exclude and a strong right to access c. Holding: Farm owners dont have the right to exclude government employees who provide health and legal services to migrant workers. 7. Brooks v. Chicago Down: a. Expert handicappers excluded from racetrack b. Market forces that preclude outrageous excess give weight to right to exclude over right to access. iv. Anti-Discrimination Laws: 1. Shelley v. Kraemer (1948) a. Facts: Neighborhood agreement restricting occupancy to whites; 35 years later an African-American family is sold property in the neighborhood w/o knowing about restrictive covenant, neighbors sue b. Rules: i. Judicial enforcement of discriminatory covenants between private parties constitutes government action and is therefore barred by the 14th amendment (14th amendment: No state shall make or enforce a law which shall abridge the privileges or immunities of US citizens, nor deny any citizen of equal protection under the law.) ii. State action necessary for enforcement of private agreements which would result in denial of equal protect of the laws iii. Excluding a trespasser does not have such an imposition on core property rights as ouster. c. Holding: Can have covenants on the deed, but they are unenforceable b/c it would constitute state action. 2. Fair Housing Act: Civil Rights Act of 1968 a. Prohibits range of discriminatory behaviors against members of protected classes: i. Refusal to rent or sell ii. To discriminate on terms iii. To make or print notice or ad that shows discriminatory preferences (always applies, no exceptions) iv. To discriminately claim unavailability incorrectly (i.e. lying about availability) v. For profit, to attempt to induce any person to sell or rent discriminatorily vi. To discriminate because of handicap of the renter, buyer, intended resident, or any association. b. Must be 1. Protected class, 2. Qualified to rent, 3. Try and rent, 4. Denied, 5. With the property available

i. If the above are satisfied, burden is shifted to D to provide a legitimate, nondiscriminatory reason c. Refusal to rent to a protected class at any moment counts as a violation i. Potential evidence: Rental history, interaction between landlord and applicant, d. Craigslist ads for roommates with a gender preference: falls under privacy and association rights. Ok as long as there is shared living space i. Fair Housing Act only enforceable within constitutional limits e. Exceptions i. Mrs. Murphy exception: rent out a few rooms in a single family home where the landlord lives too. Home cannot be intended to have more than 4 families. ii. Religious organizations, private clubs, elderly communities. iii. reasonable government restrictions on maximum number of occupants. iv. Exception for sale/rental of single family homes: if: 1. Owner cant own > 3 houses 2. If owner isnt current or most recent occupant, only once per rolling 2 year period 3. Cant use real estate agents or place discriminatory ads f. Ps under FHA may not need to show discriminatory intent, discriminatory effects suffice g. 3 purposes of FHA: i. Increase housing opportunities for people in protect class. ii. Eliminate indignity suffered iii. Eliminate social message of inferiority. 3. Attorney General v. Desilet (1994) a. Facts: Strict roman catholic D refused to rent property to unmarried cohabitating couple. b. Rules i. Marital status is not necessarily a protected class: some states have laws against unmarried sex, and can conflict with religious rights. Married couples also get more benefits under the law ii. Balancing Test: Balance state interests against the nature of the burden on D. iii. Contextual framings of the benefit and burdens are critical 1. Discrimination against marital status (majority argument); cohabitation (dissent) 2. Renting apartments (majority argument); free exercise of religion (dissent)

c. Holding: General state interest in elimination of discrimination in housing based on marital status. Commonwealth must show protecting cohabitating couples is more important than Ds religious freedom. c. Other POWERS of the Sovereign Owner i. Licenses 1. Closer to a contract than a property right (right between two parties and not beyond)(usually cant get injunctive relief, only damages 2. By itself, a temporary revocable waiver of owners right to exclude. 3. Marrone v. Washington Jockey Club of D.C. a. Facts: Handicapper bought ticket to see races, forcibly prevented from entering track b. Ticket did create a contract, couldve sued for damages, but it did not create an interest in the real property, such that the holder can resort to self-help to enforce specific performance c. Holding: Ticket came with revocable license to enter property, when license was revoked, P was a trespasser, so reasonable force to remove was acceptable. 4. Hurst v. Picture Theatres, Limited a. Facts: patron tossed out of movie theatre because he wouldnt show his ticket b. Rule i. When license is part of a contract with consideration, revoking license would be breach of contract, patron doesnt lose right to be on property when license is revoked, and attempts to forcibly remove him are grounds for a tort. c. Holding: Since consideration was given, theatre didnt have a right to revoke license, and forcibly removing him couldve been tortious. d. Dissent: Follows Marrone and Wood v. Leadbitter line of reasoning, license doesnt create interest in real property, so when its revoked, patron is a trespasser. 5. ProCD v. Zeidenberg (1996) a. Facts: P used price discrimination in selling database; D bought restricted consumer version and resold it in violation of shrinkwrap license inside. ProCD sues for injunction b. Rules: i. License is not copyright, so it isnt a right against the world, but it is a contract between two parties for the two bound parties to comply with the agreement. Has right to exclude people from certain actions as per the license agreement.

c. Holding: ProCD cannot use consumer version and resell it, they must purchase the commercial version if they wish to continue with their business. ii. Bailments 1. Definition: Temporary transfer of possession/custody of (but not title to) property by owner (bailor) to another (bailee) for some special purpose. After the purpose is accomplished, the property must be returned to bailor. -- Insofar as 3rd parties are concerned, bailees right of exclusion is like TOs. 2. Allen v. Hyatt Regency a. Facts: P parks car in Hyatt parking lot with attendant, car gets stolen, sues Hyatt. b. Rule: i. Presumption of negligence in the case of damage during voluntary bailment. c. Holding: Hyatt was liable for the stolen car. 3. Types of Bailment: a. Gratuitous: Lowest standard of care b. For mutual benefit: intermediate standard of care. c. Involuntary: liable only for gross negligence 4. Cowen v. Pressprich a. Facts: Bond incorrectly delivered to D, who tried to return it to he thought was Ps employee b. Rule: i. Involuntary bailees do not have the same duty of responsibility as a voluntary bailee, only liable if gross negligence. c. Holding: Since D didnt exercise any dominion over the property, and his attempt to return the bond was reasonable, he is not liable for the loss. 5. The Winkfield a. Facts: Ship sinks with letters, post office sues. b. Rule: Bailee has more rights to property than anybody else in the world except the true owner, so the bailee has standing to sue. c. Holding: P could recover from third party, since they would likely have to pay the true owner. d. However, must account to true owner for any damages award collected from the tortfeasor. d. Limits on Owner Sovereignty: i. Transfer 1. Permits owner to shed gatekeeper responsibility 2. Two Types: a. Quid Pro Quos (owner relinquishes title in exchange for a reciprocal transfer, e.g. $$$)

b. Gifts (owner relinquishes title in favor of another w/o explicitly receiving anything in return. 3. Lauderbaugh v. Williams (1962) a. Facts: Lake Watagwa Assoc. agreement to sell only to members (3 members could veto) b. Rules i. Common law rule against restraints on alienation: owner may not transfer property to another on condition that transferee will not retransfer. ii. Absolute restraints on alienation are always void iii. Limited and reasonable restraint may be valid iv. Standardless, discretionary restraints on alienation are suspect b/c of the possibility of discrimination (see Shelley) v. Holding: Not enforceable, restriction is unlimited in time and is subject to the whim and caprice of the Lake Assoc. member which could unjustly deprive P from alienating her land. ii. Gifts Causa Mortis: 1. Irons v. Smallpiece a. Facts: Father promised son two colts upon his death b. Rule: i. For inter vivos gift (made during ones lifetime; irrevocable) to be valid there must be delivery of: 1. A deed of gift (requires formalities like deed for land) 2. The gift itself c. Holding: Gift was not legally binding since delivery was never made. 2. Foster v. Reiss a. Facts: Wife going into surgery tells husband where all her valuables are, then survives operation b. Rule: i. For gifts causa mortis: 1. Must be made when owner thinks that his/her death is imminent 2. Gift rescinded by operation of law if they survive 3. Delivery required. c. Holding: Delivery was never made in this case, so husband cannot keep items. IV. The Forms of Ownership a. Present and future interests in land i. Freehold Possessory Estates

1.

Fee Simple Absolute: Complete ownership in real property. No natural end. Owner can designate a successor owner (gift, sale, will) if owner dies intestate, statute will designate. a. Language to signify To A and his/her heirs i. A person does not have heirs until death ii. If language is ambiguous courts will assume fee simple absolute (unless it is clear that a lesser estate was intended) 2. Life Estate: Limited duration (comes to a natural end with the death of a named person, usually the holder of the life estate) a. Followed by future interest in Remainder or Revertor b. Language to signify to A for life (implied reverter); to A for life then to B (remainder to B) c. Alienable by gift or sale (estate pur autre vie: life estate measured by named persons lifespan.) i. New owner loses property right when named person dies 3. Fee Tail: Creates a nontransferable life estate to be followed by blood descendants until line ends a. If A dies without issue fee tail ends b. Language to signify to A and the heirs of his/her body c. Eliminated by statute in most states 4. Defeasible Fees: (Interests like a fee simple absolute except they may end on the happening of some named contingency)(future interests become possessory when such contingency occurs) a. Fee Simple Determinable: Fee simple ends automatically upon the occurrence of a named event, then i. Possibility of reverter: Grantor or grantors successor gets property back in fee simple ii. Language to signify to A as long as or to A while iii. E.g. O grants blackacre to Hastings as long as its used for the instruction of law. iv. Statute of limitations for adverse possession when event triggers b. Fee Simple Subject to Condition Subsequent: i. Interest can be ended by the occurrence of a named event (not automatic, option of grantor) 1. Must be ended by action (e.g. self-help or lawsuit) 2. Future interest: possible right of reentry or power of termination ii. Language to signify To A but if ,on condition that, provided however iii. E.g. O grants blackacre to Hastings, but if its not used for the instruction of law, then O had the right to reenter and take the premises. iv. Clock does not start on adverse possession, but still cannot sleep on rights (laches, same as AP)

c. Fee Simple Subject to Executory Limitation: i. Upon named event, interest goes to a 3rd party who has an executory interest ii. Language to signify To A, but ifthen to B (executory interest to B) iii. O grants blackacre to Hastings as long as it is used for law instruction, then to Springfield animal Hospital. iv. No reversion to the grantor ii. Future Interests (besides fee simple absolute, other estates do not continue indefinitely and create future interests) 1. Interest retained by the grantor: a. Reversion: rights go back to the grantor i. Follows the natural end of a life estate or when the owner is not disposed of the entire fee. ii. If there is no other interest following a life estate, the reversion goes back to the original grantor. iii. Language to signify to A for life (implied reversion) owner has not disposed of entire fee b. Possibility of Reverter: Interest reverts to grantor upon occurrence of built in limitation i. Interest of the grantor reserved following a fee simple determinable ii. Grantor gets back property automatically if the limitation is met iii. Language to signify O grants to A as long as then to O 1. If grantor dies, his successor will take (by will, intestacy, or sale) c. Right of Entry / Power of Termination: i. Right of the grantor following a fee simple subject to condition subsequent ii. Grantor has option to take action (nothing happens automatically) iii. Language to signify O grants to A but if then O has right to reenter and take 2. Interest Created in Grantee a. Remainder: Follows a life estate and remained receives property in fee simple i. Follows the natural end of a life estate ii. Indefeasibly vested 1. Identity of the taker is known 2. No other contingency 3. Language to signify To A for life then to B iii. Contingent: Uncertainty as to the takers 1. Remainder is vested

a. If fails to vest in interest and no other interests then supporting reversion 2. Language to signify To A for life then to B if (interest is vested) a. To A for life then to his children (uncertainty as to the takers) 3. Vested subject to complete defeasance: upon occurrence of a condition, interest can shift to someone else. (Marge grants blackacre To Homer for life, then to Bart; but if Bart fails to graduate high school by 19; then to Lisa) i.e. Condition Subsequent therefore, Lisa has a shifting executory interest 4. Vested Subject to Open: Marge grants blackacre to Homer for life, then to his children and their heirs. And at the same time Homer is the father to Bart and Lisa, but not yet Maggie, so Bart and Lisa are subject to open b/c Homer could have other children, therefore, Bart and Lisa have vested remainders subject to partial divestment b/c with each additional child, their interest is reduced b. Executory Interest i. An interest in a transferee (not retained by the grantor) that divests or cuts short a previous interest ii. Language to signify To A but if then to B iii. Springing Executory Interest: If the executory interest divests an interest in the grantor (Marge grants blackacre to Bart for life, remainder to Lisa 5 years after his death) therefore, there is a reversion to Marge that would be possessory during the 5 year gap after Barts death. Lisa has a springing executory interest because it divests the reversion in the grantor. iv. Shifting Executory Interest: Like above, but automatically shifts to a 3rd party upon condition 3. Vesting a. An interest vests in possession when the interest becomes a present possessory one. b. An interest can vest in interest before it vests in possession. c. An executory interest only vests in interest once it vests in possession.

Future Interest
Present Interest Fee Simple Absolute Life Estate Fee Simple Determinable Fee Simple Subject to Condition Subsequent Fee Simple subject to executory limitation in grantor? X Reversion Possibility of reverter Right of entry/ Power of Termination Always vested in interest in 3rd party? X Remainder (vested or contingent) X X Executory interest -- Generally must be possessory to vest in interest

Estates System: Freehold Interests Present Interest

Definition

Language Used to Create

Future Interests

Fee simple absolute Fee simple determinable

Property ownership without an associated future interest A type of Defeasible fee when the future interest reverts automatically to the grantor on the happening of a stated event

Fee simple subject to A type of Defeasible fee when condition subsequent the future interest grantor may choose to retake the property on the happening of a stated event Fee simple subject to A type of Defeasible fee in executory limitation which the future interest belongs to someone other than the grantor, with ownership shifting automatically on the occurrence of the happening of a stated event. Life estate Present ownership rights held during the life of a designated individual

In Grantor In Third Party to A If owner died intestate, statute will to A and her heirs designate as long as Possibility of while reverter during until unless provided that Right of entry (for on condition condition broken but if or power of termination) until (or unless), then to but if, then to Executory interest

for life

reversion

Remainder (vested or contingent)

Present Interest

Examples

Typical Future

Words

Fee Simple Absolute

Life Estate

O grants blackacre to M O grants B to M in fee simple O grants B to M and her heirs O grants B to M for life O grants B to M for life, then to N O grants B to M for life, then to her adult children. O grants B to M for life, then to N if Condition (C) occurs O grants B to M for life, then to N, but if C occurs, then to K O grants B to M for life, then to her children (N was the only child at the grant

Interest None

fee simple To M and her heirs To M To X for life

Reversion in O Remainder; indefeasibly vested Remainder; contingent Remainder; contingent Remainder (in N): vested subject to complete defeasance Remainder (in N); vested subject to open

Fee Simple Determinable Fee Simple Subject to Condition Subsequent

O grants B to M as long as Possibility of C occurs, (then to O) Reverter (in O) O grants B to M, but if C occurs, then O has the right to reenter and take the premises Right of entry / Power of Termination (in O)

Fee Simple Subject to Executory Limitation

O grants B to M as long as Executory C occurs, then to N. interest in N O grants B to M, but if C occurs, then to N

as long as so long as while during until but if on condition that provided that provided however if (condition subsequent often separated by a comma) as long as but if

b. Maintaining the System i. Conservation of Estates

1.

Whenever a transfer is made all of what the grantor had must be accounted for 2. Ensuring that all the pieces of the estate are accounted for as grantors often convey less than full interest a. If a holder in fee simple dies without heirs the property escheats to the state (relatively rare) 3. Estate Planning a. Williams v. Estate of Williams i. Facts: Will provides estate to daughters, and not to be sold during their lifetime and if any one of them marry their interest ceases and the ones that remain have full control. Each daughter had 1/3 life estate defeasible and with an executory interest ii. Rules: 1. Rule of Construction: language of a single sentence is not to control as against the evident purpose and intent shown by the whole will. When a predominant purpose of the testator is expressed, courts must try to effectuate that purpose and construe all subsidiary clauses as subordinate to the main purpose 2. Intent: Function of construing a will is to ascertain and carry out the predominant purpose and intent of the testator, very important in holographic wills (handwritten by testator) iii. Holding: Intent is clear because evidence that author was careful and thorough, devised life estate to the 3 daughters. Evidence during their lives limits duration to their unmarried state. 4. City of Klamath Falls v. Bell (1971) a. Facts: Corp. conveyed land in gift to city for library, deed provided city should hold the land so long as it complied with the condition, and if not pass to Schallock and Dagget and heirs Executory interest violates RAP, replaced with possibility of reverter. b. Rules: i. Minority: Some states rule that the grantor may not alienate a possibility of reverter even if they attempt to give 3rd party an executory interest. ii. For Corps: Even if Corp. dissolves, possibility of reverter remains and will go to shareholders and heirs. c. Holding: Deed created a fee simple determinable, since the executory interest violated RAP i. Grantors retained possibility of reverter (passed to heirs of shareholders) same result

ii. A failed attempt by a grantor to transfer his possibility of reverter does not destroy it. iii. Fit language into the limited menu (just because executory interest was impermissible does not give city fee simple) strike problematic language and reevaluate which form of ownership still exists.) ii. Intestacy Statute 1. If someone dies without a will, if they have spouse and children with the spouse a. Spouse typically gets portion of estate (usually 50%) b. Children divide the rest of the estate 2. If someone dies without a will, if they have a spouse, but no children with that spouse (can have children with another woman) a. Spouse gets 100% 3. If someone dies without a will and without a spouse a. How do you divide amongst descendants? i. Equally between children if all alive when O dies ii. One of children predeceased O, children who are alive split the estate iii. If one of children predeceased O, but has children of his own, then 1. Per Stirpes: All the children who are alive and children of Os children a. Split equally between all of Os children, then b. Take individual childs share and split between his children 2. Per Capita: Divide amongst ALL the living descendants only one generation down (if no one in that generation is alive, go to next generation) iv. If no children but there are parents or grandparents (ascendants of O) they take it v. If there are no children, parents or grandparents, goes to uncles, aunts, nieces, nephews 1. Consanguinity: Counts distance in terms of the # of generations to a common ancestor 2. Parentelic System: Looks down the line of descendants from ancestors of the decedent, priority to those close by in terms of sharing a common ancestor even if of different generations 4. Cliff notes: a. If O dies with spouse, she gets between 1/3 and 100% b. If O dies without spouse, first kids/grandkids, then ascendants, then collateral relatives. 5. Hypo 1: No will, O has no spouse and 3 kids, ABC

a. All live: Each kid gets 1/3 b. One die: The kids who are alive get 6. Hypo 2: ABC, C dies but has two kids (c1 & c2) a. Per Stirpes: A=1/3, B=1/3, c1= 1/6, c2=1/6 b. Per Capita: Everyone gets 7. Hypo 3: O dies, has 3 children ABC, gives life estate to A. A dies and B has 2 kids a. Interest reverts back to O, who is dead, and b. Per Stirpes: C gets B1 gets B2 gets c. Per Capita: Everyone gets 1/3 iii. Disclaimer: 1. Gifts are only valid if accepted (it takes two to transfer) 2. No obligation to accept property interest, potential recipient can refuse property, goes to next interest iv. Numerus Clausus: Catalog of estates is finite and closed. Property, unlike contract is not freely customizable by parties but rather is standardized into a closed set of approved forms. (Although it can be changed by statute e.g. time-shares) 1. Merrill & Smith conclusion: Numerus Clausus strikes a rough balance between the extremes of complete regimentation and complete freedom or customization and this leads to a system of property rights that is closer to being optimal than that which would be produced by either of the extreme positions 2. 3 classes of people affected by idiosyncratic property right: 1. Originating parties 2. Potential successors 3. Other market participants. People within the zone of privity have decided to take on extra burden on the fancy but it creates problem for other market participants by disproportionately raising information costs 3. Rationale: Limits confusion from new modes of ownership, prevents excessive fragmentation (too many veto wielding coowners and holdout behavior will cause a resource to be underused) Limited menu of forms fewer bizarre property types; complicated conveyances are uniformly sorted. 4. Johnson v. Whiton (1893) a. Facts: Man wills property to 5 grandchildren, 4 have fee simple, and one may have fee tail. All trying to combine interest to sell. Sue to determine if one has fee tail or not. Will conveys: to my granddaughter and her heirs on her fathers side. b. Rules: i. Fee Tail Rule: If it is obvious certain heirs got fee simple, even if it sounds like another heir got a fee tail, it cannot be true and all have fee simple since fee tails are now illegal. ii. A man cannot create a new kind of inheritance (granddaughter has fee simple absolute)

iii. Appears similar to a fee tail that has been abolished c. Couldve used precise vocabulary of the estate system to effectuate this conveyance. d. Holding: Fee tails are not recognized and cant create a new form so it is a fee simple absolute and they may sell it. 5. Garner v. Gerrish (1984) a. Facts: Landlord leases premises to tenant: for and during the term of quiet enjoyment from 1977 which term will end Gerrish has the privilege of termination this agreement at a date set of his own choice, Also landlord may reenter if rent not timely paid. Lease provides that lessee has power of termination at the date of his own choice but the landlord does not. b. Life Tenant Lease Rule: Lease which expressly and unambiguously granted to tenant right to terminate, and did not reserve to landlord similar right, does not create a tenancy terminable at will of either party, but instead create a determinable life tenancy on behalf of the tenant. c. Holding: Since only T has right to terminate, create a determinable life tenancy. d. Majority: Most courts would categorize this as a periodic or atwill lease, seems to violate numerous clausus. e. Types of Tenancy: i. Term of Years ii. Periodic Tenancy: month to month, automatic renewal, notice to terminate required by either party iii. Tenancy at will: No notice required. iv. Tenancy of Sufferance: When the tenancy folds over c. Mediating Conflicts over Time: i. Waste: Brokaw v. Fairchild (1929) 1. Facts: Will conveyed 4 NYC mansions to each of 4 children in a life estate followed by contingent remained in other 3 mansions, sons wants to raze untenable house and put up apartments (greatly increasing the value) 2. Rules: a. Waste: Any act of the life tenant which permanently injures the inheritance b. General rule of what life tenants (LT) may do: LT may do whatever is required for the general use and enjoyment of his estate as he received it but may not exercise acts of ownership such as demolition. LT may erect a new edifice as long as they do not materially injure any existing improvements on the land. Or can change the property as long as they change it back before the tenancy expires. c. Types of Waste:

i. Ameliorative waste: increases market value but permanently changes the property ii. Affirmative waste: LT does some damage which causes damage to remaindermen (e.g. overexploiting lands resources, use must be normal) iii. Permissive Waste: Failing to make repairs, not paying taxes, allowing AP. iv. Majority Rule: Have to maintain nature of the property v. Minority view: see Melms v. Pabst Brewing, can change property if the circumstances have changed substantially enough. ii. Valuation of Interests 1. An amount in C in the future equals the present value P times the discount factor r, applied for the requisite number n of time periods, i.e. C = P (1+r)^n a. Or in reverse from a future nominal amount to calculate present discounted value, i.e. P=C/(1+r)^n 2. Value of the future interest depends on the life expectancy of the life tenant (use actuarial tables) iii. Restraints on Alienation 1. General: Courts do not usually uphold determinable fees that restrain alienation (limit transferability) 2. Mountain Brow Lodge No. 82, Independent order of Odd Fellows v. Toscano a. Facts: Deed reads: said property is restricted for the use and benefit of the second party, only; and in the event the same fails to be used by the second party or in the event of sale or transfer[then to grantor] b. Restraints on alienation is void, but language is disjunctive and land use restriction is valid i. Created a fee simple subject to condition subsequent with regards to land use (w/ reverter) c. Holding: Valid to restrict the use of land, even if such restriction hampers or even completely impedes alienation. But cant restrict the sale of land. So Mountain Brow lodge can sell the land technically, but they are still the only people who can use it. 3. Courts may permit restraints on land even if they impede transferability a. Often look to marketability i. Damages/injunction v. forfeiture 1. Forfeiture remedy has hugely negative impact on whether a property is marketable. ii. Number of potential buyers potentially affected 1. Restrictive small universe of potential buyers under clause will likely be deemed invalid

iii. Surrounding land restrictions (in Toscano, property used as parking lot for lodge) iv. Improvements 1. Does a restriction disallow improvements on the property v. Charity exception (limit transferability from charity to charity often accepted) iv. Rule against Perpetuities (RAP) 1. Purpose is to prevent dead hand control 2. Strict Rule: No interest is good unless it must vest, if at all, not later than 21 years after some life in being at the creation of the interest. 3. Step 1: RAP only applies to following interests: a. Contingent remainder b. Executory interest c. Remainder subject to open d. (All these interests involve one of two types of uncertainty) i. the identity of the interest holder ii. the occurrence of some condition precedent e. DOES NOT APPLY TO: i. Vested Interests or ii. Interests retained by the grantor: i.e. reversion, possibility of reverter, power of termination 4. Step 2: Look through the pool of possible measuring lives: anyone alive and affects vesting at the time the will is created: a. RAP lasts up to 21 years after the death of the measuring life, if the interest does not definitely vest within that time, its void b. Includes a child born after measuring persons death if they were already conceived, and Measuring people cant be subject to open. c. Interest is void if the burden of keeping track of measuring lives is too great (to my heirs after the death of the last person in NY phone book) 5. Step 3: Choose one person as the validating life, make sure that with crazy scenario, all interests vest within RAP (e.g. unborn widow, fertile 80 year-old, after born wife) a. Measuring Lives: Do not have to be specifically mentioned in deed, can be implied in the grant, may not have special connection to the property (e.g. living heirs of Queen Victoria) b. Solution: Insert perpetuities savings clause: refers explicitly to the possibility of invalidation under the RAP and specific backup plan 6. Step 4: If an invalid clause exists, rewrite the will by striking out the bad party and adding a possibility of reverter to O at the end

7.

Exception: Doctrine of Cy Pres: Saves gifts to charity from RAP or wastefulness by substituting a similar charity, also ok with RAP if executory interest from one charity to another. 8. Examples: of RAP a. O devises to A for life, then to B if B survives A. Rule does not apply A has a life interest and B has a contingent remainder in fee simple absolute. Os heirs have reversion interest (if B does not survive A) b. O conveys to A so long as the property is used for commercial purposes, then to B. RAP renders Bs continent interest void because it is unknown how long the property will be used for commercial purposes. c. O conveys to A for life, then to B. O is 93 and in poor health, A is 10 yo. Rules doesnt apply, age not important; A has life estate and B has a vested remainder in fee simple absolute d. O conveys to A for life, then to As first child to reach 25. At time of conveyance, A has one child, age 24. RAP applies and renders the interest in As children void because As first child could die and A could died, making it impossible that the interest might not vest within As life + 21 years, A has a life estate, and As first child has a contingent remainder. e. O conveys to A upon As marriage to B. RAP does not apply because the uncertainty will be resolves within As life + 21 years. O has fee simple subject to As springing executory interest, A has a springing executory interest in fee simple absolute. 9. Merger Rule: a. O grants to A for life and then O separately conveys his reversion to A. b. Courts hold that conveyances can be merged (this would be fee simple) 10. USRAP: a. CA + ~1/2 states b. Nonvested interests are valid if: i. They satisfy common law RAP ii. They vest or terminate within 90 years (wait and see) 1. Lots of uncertainty for long periods 11. Symphony Space v. Pergola Properties a. Facts: Broadwest sells property to Symphony then leases it back for tax purposes with repurchase option. Pergola buys option, cant exercise it because of RAP b. RULE: i. RAP does generally apply to commercial options 1. Otherwise would discourage business from creating value, plus makes it hard to alienate land 2. Organizations cant be measuring lives for RAP

V.

3. RAP doesnt apply to a. Rights of first refusal, OR b. Options appurtenant to the lease c. Holding: Pergola loses, right of first refusal wouldve been ok, but not option to buy, NY doesnt apply wait-and-see approach Co-Ownership and Conflicts Between Co-Owners a. Co-Ownership i. Tenancy in Common: Separate but undivided interest. 1. Separate: Independently descendible, conveyable and divisible. 2. No right of survivorship 3. Undivided: Each tenant in common must have the right to possess the whole property. No requirement of equal share 4. E.g. C, D, & E are tenants in common and D dies, Ds interest goes to Ds heirs 5. Creating Tenancies in common: Easiest to create (To A&B [they do not have to have the same interest], To A&B in common To A for life, to B 1/8 interest) ii. Joint Tenancy: Same as tenancy in common but also includes right of survivorship: surviving joint tenants automatically acquire the interest of the other joint tenants that die (cant will to heirs until last survivor has fee simple). Therefore, last joint tenant alive has fee simple absolute. 1. Requires 4 unities at creation: a. Time: Each interest must vest at the same time b. Title: Each must acquire title by the same instrument or adverse possession (never intestate succession) c. Interest: Each must have same legal interest in the property (fee simple, life estate, lease, but not fractional share) d. Possession: Each must have the right to possess the whole. i. Any joint tenant can sever the joint tenancy (sell it for $1 and buy it back so that it is a tenancy in common)(one party can unilaterally change the form of ownership this way) 1. To get the unities and joint tenancy back, cotenant has to sell and buy back as a joint tenancy. 2. Ex. C, D, and E, D dies, Ds share dissolves and the other joint tenants assume a half portion iii. Tenancy by the Entirety: Only for married couples, each owner has a separate and undivided interest, and possession of the whole, also includes the right of survivorship. But neither spouse can transfer or encumber their share without the consent of the other. No unilateral exiting. (5 unities required, the 4 listed above + marriage) iv. Community Property: For married couples in the south and west. All property acquired during the marriage automatically becomes community property. Each spouse has a right to possess community

property and may transfer property in and out with the others consent. Property acquired before the marriage is separate, but may become community property if comingled. b. Partition (most important legal remedy available to concurrent owners) (usually not used for future interests) i. Each cotenant has an automatic right to terminate a co-tenancy at any time 1. Partition in Kind: Division of physical property according to the parties respective interests. a. Owelty: payment to correct imbalances in partition in kind 2. Partition by sale: Division of proceeds according to the parties respective interests ii. Delfino v. Vealencis (1980) 1. Facts: Tenants in common; P seeks partition to sell residential property, D runs garbage business and lives on land 2. Rules a. Partition by kind (physical partition) is preferred when possible, Consider: size, area, structures, present and future use, zoning, whether someone using land for home, business, or livelihood b. Partition by sale between tenants in common should be ordered only when 2 components are satisfied i. The physical attributes of land allow for practicable and equitable partition ii. Interests of all parties better served by a partition by sale. c. Side note: Party requesting partition by sale has the burden to demonstrate the sale will promote the owners interests. 3. Holding: Partition in kind (physical partition) more practicable because interests of D not accounted for (home and business on property) so D gets to keep house and business on 1 acre, and D must pay owelty to other tenants in common to compensate them for loss in revenue because selling land as residential. c. Contribution and Accounting: i. Gillmor v. Gillmore (1984) 1. Facts: Tenants in common; grazing issue resulted in alleged ouster; both parties could not graze simultaneously. P wants damages for loss of revenue from exclusion from property. 2. Rules: a. Co-Tenant Rights: Right to free and unobstructed possession without liability for rents for their use and occupation. Cotenant only liable if interferes with other co-tenants right to occupy, use and enjoy. b. Establishing Ouster: Must demonstrate that activity necessarily excludes the cotenant. i. Exclusive use alone is not necessarily and ouster (must exclude the other cotenant.

ii. Once there is an ouster, AP clock starts ticking c. Reimbursement for Improvements: Generally, when Co-t in sole possession makes repairs or improvements to common property w/o consent from other co-ts, improver has no right to contribution. Consider: ongoing or terminated relationship, necessary to prevent forfeiture (allowed) repairs and maintenance (unlikely) improvements (not awarded) d. Exceptions: Improver gets compensation from co-ts when: 1. Other co-Ts have stood by and permitted him to proceed to his detriment, and 2. If improver acted in good faith believing themselves to be the sole owner. e. If you use land for a business, do not have to share proceeds, but if you rent to a 3rd party, do have to share rents 3. Holding: Grazing necessarily excluded other cotenant because of issue of overgrazing. Women gets compensation for lost revenue from inability to graze and injunction to force other co-T to allow her to graze. But, excluder repaired fence and gets compensation. ii. Harms v. Sprague: 1. Facts: Brothers own land as joint tenants. One uses his share as collateral on loan, dies, then bank tries to collect. 2. Rules: a. Joint tenancy is not severed by one party getting a mortgage b. Mortgage does not survive the death of one of the joint tenants, since it was attached to an interest that has been extinguished. 3. Holding: Surviving brother gets to keep the property as fee simple absolute, since mortgage did not sever or survive the death of the other joint tenant. iii. In re Estate of Filfiley (1970) 1. Facts: Daughter has joint checking account with her mother, withdraws all $ day before she dies. 2. Rules: a. Removing ones share doesnt destroy their right to survivorship. b. Moiety: Ones share of the joint tenancy, usually assumed to be 50% c. A & B, if A withdraws < moiety i. If A dies, B takes everything thats left ii. If B dies, A takes everything thats left d. If A withdraws > moiety i. If A & B are living, B can recover excess over the moiety ii. If A dies, B takes it all iii. If B dies, A takes it all 3. Holding: Court held for the daughter, because even though her withdrawal was technically invalid, her right to survivorship gives her the whole account anyways VI. TAKINGS

a. Eminent Domain: government power to take peoples land for just compensation i. Intro 1. 5th amendment: Nor shall private property be taken for public use without just compensation + Due Process clause protects US citizens from unfair takings. 2. Govt. Compromise: Ordinarily, property rule which protects owners right to exclude and must have owners consent to use or buy the property. Eminent domain is a Liability Rule, so government can buy the land for just compensation without permission. 3. Entities who have eminent domain powers: fed gov., state gov., municipalities, counties, certain agencies, common carriers, public utilities, and others specifically conferred the right by the govt. 4. Standard Eminent Domain Requirements: a. Condemning authority must show it has been delegated the power of eminent domain by the legislature b. The delegated power is broad enough to cover the proposed project c. The exercise of eminent domain is necessary to complete the project d. Proper procedures have been following for making these various statutory determinations e. Project must be for Public Use. f. Condemning authority must offer just compensation g. Required to give notice to the landowner. h. Must give landowner an opportunity for a hearing. 5. Additional Requirements: a. Applies to urban renewal: property must be in a blighted area. ii. Public Use Requirement Kelo v. City of New London, CT (2005) 1. Facts: City council in New London, CT granted authority to purchase property via eminent domain to nonprofit org. Plan to build marina, shops, docks, offices, and museum. Nonprofit negotiates with all parties, but fail with 9 petitioners who own 15 properties. Owners sue for injunction saying the takings violate the public use requirement 2. Procedural Posture: Trial court granted injunction for those properties in the park area and denied relief for properties in office space area. Appeals court ruled all the proposed takings were valid. SCOTUS affirms. 3. Rules: a. Sovereign may not take entitys property solely to transfer it to another entity even though the original owner is paid just compensation.

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i. No purely private takings allowed under the public use requirement. City cant take under the pretext of public purpose if the purpose is really to bestow a private gift. b. State may transfer property from one private party to another if future use by the public is the purpose of the taking c. Broad Rule: Public use=public purpose subject to strong deference of the courts to determine i. Berman v. Parker: Area condemned for redevelopment. Man who owns dept. store sues for injunction. Court says the area must be planned as a whole for the plan of redevelopment to be successful and deferred to agency judgment and affirmed eminent domain. ii. Hawaii Housing Authority v. Midkiff: Court unanimously upheld Hawaiian statute that takes land from A and gives to B to reduce concentration of land ownership. Explained that the states purpose of eliminating the social and economic evils of land oligopoly qualified as a valid public use. 1. Only the takings purpose and not its mechanics matters in determining public use 2. Legislature has broad latitude in determining what public needs justify eminent domain. Concurring Opinion: Rational Basis Review. Justice Kennedy says courts should strike down a taking that by a clear showing is intended to favor a particular private party, with only incidental or pretextual public benefits. Holding: Takings satisfy public use requirement of 5th amendment, because plan likely to produce appreciable benefits to the community like new jobs and tax revenue. Justice OConnors Dissent: Notion of affirmative harm, in Berman (blight) and Midkiff (land oligopoly) there was an affirmative harm being eliminated. Shouldnt be able to use eminent domain simply for economic improvements, or else all private property is vulnerable. 3 acceptable categories of takings: public ownership, common carriers for public use, or public purpose Justice Thomas Dissent: Public use should only mean two things, public ownership, or public use owned by private property that is completely open to the public. Poor and minorities disproportionately harmed by public takings because of blight or economic development. 3 Categories of Takings that comply with Public Use: a. Sovereign may transfer private property to public ownership (e.g. for roads, hospital, military base) b. Sovereign may transfer private property to private parties, often common carriers, who make the property available for the public use (e.g. railroad, public utility, stadium)

c. In certain circumstances, takings that serve a public purpose also satisfy the Constitution even if the property is destined for subsequent private use. (See Berman and Midkiff) i. In Berman and Midkiff, relevant legislative body found that eliminating existing property use was necessary to remedy harm. So a public purpose was realized when the harmful use was eliminated. Plus, the taking directly achieved the public benefit. (Incidental benefit, like tax revenue, more jobs, doesnt constitute public use.) 9. Through statutes and ballot measures, most states have moved towards the position in OConnors dissent. VII. EASEMENTS a. Nomenclature: i. Nuisance: Tort approach to resolving neighborly conflict. Coase theorem situation. ii. Easements: property approach to giving some use and enjoyment rights. Should be in writing because informality between neighbors can later cause conflict. iii. Covenants: Contract. About giving the use of property iv. Easement Appurtenant: Easement that belongs to another parcel of land. E.g. I grant Matt the right to walk through my land to access his adjacent land. Matt has an easement appurtenant that belongs to his land blackacre that is carved out of my land whiteacre. 1. Benefit of the easement belongs to whoever happens to own blackacre and burden of the easement to whoever happens to own whiteacre. 2. Blackacre = Dominant Tract, Whiteacre = Servient Tract v. Easement in Gross: Easement that belongs to a particular grantee rather than belonging to the land. So I grant Matt the right to go skiing on my land. Easement belongs to him and not whoever owns his land. vi. Profit a prende: Right to enter the land of another in order to extract something of value such as timber, fruit, or fish. (Same rules as easement appurtenant) License remains irrevocable as long as the profit continues to last. vii. Affirmative Easement: permits the easement holder to perform some affirmative action on the land of another (i.e. permitting action on the servient tract that would otherwise be trespass or nuisance) almost all easements are affirmative. viii. Negative Easement: Permits the easement holder to demand the owner of the servient tract desist form certain actions that might harm the easement holder. 1. Common law recognized 4 types in England: a. Blocking sunlight b. Interfering with the flow of air c. Removing lateral support from a building

ix. Private Easement: Authorize specific named parties (people or entities) to use land for a designated purpose x. Public Easement: Authorize general public to use land for a designated purpose (e.g. beach, bike trails). Public can hold negative public easements like scenic or conservation easements. b. Numerus Clausus Applies to Easements i. Baseball Publishing Co. v. Bruton (1938) 1. Facts: Man intended to lease space on a wall to display an ad, mails contract to wall owner who agrees but doesnt accept the money. Man continues to send checks as per the contract. After 3 years, the owner takes down the ad. Man sues owner to get back right to display ad. 2. Rules: Must determine which of the numerus clausus the agreement falls into. 3. Holding: Not a lease since only has right to display the sign on the wall, doesnt gain possession of the wall itself. Not a license since licenses are revocable at the will of the possessor of the land. So it should be an easement since it gives the man a certain right to the property. Actually easement in equity since in equity a seal is not necessary to the creation of the easement. c. Creation i. Creation of Easements: 1. Grant (e.g. through a deed) 2. Reservation in a grant (clause in a deed for land sale) 3. Necessity a. Common ownership prior to severance b. Property otherwise landlocked at moment of severance 4. Implication a. Common ownership prior to severance b. Prominent prior use c. Necessary for beneficial enjoyment 5. Prescription 6. Estoppel ii. Easements by Implication and Easements by Necessity Schwab v. Timmons (1999) 1. Facts: P wants easement by necessity over Ds property so P can drive to their landlocked parcel. Lake on left, bluffs on right. Ps divided and sold off part of land on bluff that once had road access. They were at fault for creating the landlocked parcel. 2. Rules: a. Elements to Create an Easement by Implication: i. Common ownership ii. Severance: A single parcel gets severed iii. Necessity: That arises at the moment of severance because the parcel has no access to a public road: necessity for the easement must be so clear and absolute

that without the easement the grantee cannot enjoy the use of the property for the purposes it was devoted. iv. Prior Use: Part of the land must be in use at the time of the severance b. E.g. a driveway over the land, then severed, can still use the driveway. c. Elements to create an Easement by Necessity i. Common Ownership ii. Single Parcel iii. Very great necessity arises at that moment, also requires continuing necessity of the easement. 3. Holding: No easement by necessity or implication, they were responsible for making their parcel landlocked, and can still access land by water. iii. Easement by Prescription: Warsaw v. Chicago Metallic Ceilings, Inc. (1984) 1. Facts: Company builds building near boundary, uses Ds land to drive trucks around property for 7 years w/o permission. D starts erecting a building on that portion of land. P sues for injunction to remove the building to gain access to the road. 2. Rules: a. Elements to create an Easement by Prescription i. Actual ii. Open and Notorious iii. Continuous: Used the path on a regular basis iv. Adverse under a claim of right v. For the statutory period vi. Certain and Definite line of travel used repeatedly over time; slight deviations ok but not substantial changes in the path b. Rationale: Allows for prompt termination of controversies before the possible loss of evidence and in stabilizing long continued property uses. 1. Land use is favored over disuse. 2. Reduced litigation: preserve the peace by protecting a possession maintained for a statutorily deemed sufficient period of time. 3. Holding: P satisfied the elements for 7 years, so successfully created an easement by prescription. D must remove the building at his own expense. No clean hands in this case, D gambled and lost by continuing to build the building even after P filed suit. 4. Concurrence: Institutional choice argument. The law should be changed, but its up to the legislature to do so. 5. Dissent: Courts have ability to provide equitable relief, should provide D with just compensation iv. Easement by Estoppel

Facts: Owner uses part of Ds land as road to transport mine material, mine closes, owner builds tenant home. Tenants and owner use road again. Home burns down in 1961. P builds new home in 64. Ds gives permission to improve the road; Ps spends $100 widening, placing culverts, and gravel. D wants to buy Ps land but is refused, places metal wires so road cannot be used. 2. Rules a. Elements to create an Easement by Estoppel: i. True owner gave permission ii. New user relied on that permission to improve the land on the faith and strength of the license iii. To revoke the permission would be inequitable. b. No statute of limitations: so can happen very quickly when all elements are met. c. Rights a person gains through estoppel: They get an irrevocable license to what was originally granted permission to do forever so long as its always used for that purpose. Also usually transferable to the new owner as it runs with the land. 3. Holding: P gave permission to use driveway, Ds improved it, cannot revoke the license to use it. v. Negative Easements -Fontainebleau Hotel Corp. v. Forty-Five Twenty-Five Inc. 1. Facts: Hotel builds giant tower that cast shadow over neighboring hotels pool. Neighbor sues for injunction. 2. Rules: a. Owners Rights: A property owner may put his property to any reasonable and lawful use, so long as he does not thereby deprive the adjoining landowner of any legal right of enjoyment of his property which is recognized and protected by law and so long as his use is not such a one as the law will consider a nuisance. b. There is no legal right to the free flow of light or air from adjoining land: Where a structure serves a useful and beneficial purpose, it does not give rise to a cause of action either for damages or for an injunction under the maxim of sic utere tuo ut alienum non laedas. Even though it causes injury to another by cutting off light, airflow, and obstructing a view that would otherwise be available. c. Ancient Lights: English law, and only applies if sunlight has fallen on a window for 20 years. 3. Holding: No right to sunlight. Fontainebleau may keep towers and owner gets no compensation. Doesnt matter that the addition may have been partly constructed out of spite. However, pure spite might give rise to court intervention. d. Termination of Easement: i. By deed

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ii. Merger (if a single owner purchases the dominant and servient tracts.) iii. Adverse Possession iv. Prolonged nonuse gives inference that easements been abandoned. e. Misuse of Easements: i. Penn Bowling Recreation Center v. Hot Shoppes Inc. (1949) ii. Facts: Penn Bowling overusing their easement in a way that interference with the servient tracts use by parking rather than driving, and overuse by using path to equip a parcel of land that was not dominant tract. iii. Rules: 1. Non-Dominant Tract use: Not allowed. An easement can only be used by the dominant tract and cannot be used by parcels of land near the dominant tract owned by the same person. 2. Rationale: Using an easement beyond its scope (geographic, scope of use, etc.) constitutes a continuing trespass: remedy for continuing trespass is an injunction. A harsh automatic injunction rules sets up the right incentives for ex ante negotiations. In this case, P couldve avoided the problem by trying to bargain up front. iv. Holding: Until its clear that the easement is being used solely by the dominant tract, there will be an injunction barring its use. VIII. COVENANTS i. Covenants in leases run to successors of the original landlord or tenant, if: 1. Landlord and tenant intended that they will run; AND 2. Covenant is one that touches and concerns the land b. Equitable Servitudes: Tulk v. Moxhay (1848) i. Facts: seller sells land that includes covenant for buyer to always maintain a square garden. Buyer purchases and intends to build buildings on the land. Seller files for injunction to force buyer to keep and maintain the garden. ii. Holding: All purchasers with notice of covenant must conform to covenant iii. Reasoning: One is bound to perform an obligation of which he has notice. If a person has notice, then they have an obligation iv. Rationale: It would be unfair for someone to buy the land with notice then sell the land for a higher price w/o the covenant. (Doesnt make sense economically if you know theyll be able to resell for more w/o covenant) c. Real Covenants: i. Neponsit Property Owners Association, Inc. v. Emigrant Industrial Savings Bank (1938) ii. Facts: Neponsit developed land in Queens and conveyed the land with a covenant to the owner to pay $4 a year for the maintenance of the community, runs until 1940. All subsequent deeds and all deeds in community had exact same covenant. D purchases land at a judicial sale and fails to pay the $4, results in lien on house, then foreclosure.

iii. Reasoning: D got right of common enjoyment with other properties to the beaches, parks, and road. To enjoy those rights they must be maintained. To maintain the land, the grantor takes $4 per year from each property owner. That burden of cost affects the value of the property through affecting their enjoyment. iv. Requirements for a covenant to run with the land: 1. Intention by Both Parties: It must appear that the grantor and grantee intended that the covenant should run with the land. 2. Touching & Concerning Land: It must appear that the covenant is one touching and concerning the land with which it runs. a. Courts have high discretion b. Prof. Crawfords definition: i. A promise not to do something with or to land (e.g. subdivide, build above certain height, operate commercial store) will almost certainly T & C land ii. A promise to do (or have done) something with the land (prune trees, pay $ for a service) may or may not T & C. Two good questions (neither universally determinative: 1. Will it increase promisees use or enjoyment of the land? 2. Will it increase the market value of promisees land? a. If answer to both is yes, then its likelier that it T & Cs land. d. Requirements for Covenants to Run: i. Issue with covenants: whether the benefits and burdens of the deal between the original parties will run with the land, extending to successors of those parties. ii. Horizontal Privity: 1. 2 types a. Mutual Privity: 2 parties own an interest at the same time, in the same land. E.g. owner of life estate and remainderman b. Instantaneous privity: At moment of creation of interest, covenant is created. E.g. A subdivides lot, places covenant at the same of subdivision. iii. Requirements for Real Covenants to Run 1. For burden to run: a. Intent for burden to run b. Notice c. Horizontal Privity d. Vertical Privity e. Touch and Concern 2. For benefit to run: a. Intent for the burden to run b. Vertical Privity c. Touch and Concern iv. Requirements for Equitable Servitudes:

For burden to run: a. Intent b. Vertical privity c. Touch and Concern 2. For benefit to run: a. Intent b. Touch and Concern v. Equitable Servitudes usually deal with specific performance, real covenants deal with money damages rd vi. 3 Restatement uses a more contract oriented approach, abolishes touch & concern and privity requirements, e. Notice and the Common Plan i. Sanborn v. McLean (1925), in subdivisions, covenants trace back to a deal between the developer and the original purchasers. ii. Facts: Couple (D) buys plot in residential neighborhood, begin construction of a gas station, neighbors sue for injunction. iii. Rule: 1. Following the Common Plan: One must follow the common plan if they can easily see that the whole neighborhood is residential and could easily discover that some of the neighbors have restrictive covenants stating that plots can only be used for residential purposes, even if their own deed has no restrictions at all. a. Notice: Constructive notice given when the whole neighborhood is uniformly residential and when homes are continually sold, they remain solely residential for the past 30 years. iv. Holding: Couple must use the land solely for residential purposes. If gas station building can be used for another purpose it doesnt have to be torn down. v. Reasoning: Many of the homes in the neighborhood had restrictive covenants and the neighborhood with 98 houses remained residential for past 30 years. All the houses have the right to continue enjoying the benefit of the restrictive covenants. f. Conservation Easements: Negative covenants in gross that restrict the future development of land (negative b/c prohibit servient landowner from engaging in certain activities, covenants because doesnt fit into 4 types of negative easements, and gross b/c power to enforce restriction not given to another landowner but to local govt. or land trust. i. Negative Covenants in Gross probably dont run with the land since they dont meet the privity requirement ii. Conservation easements exist only b/c legislation authorizes them and are a new form of property. iii. Reasons for rapid proliferation of conservation easements: 1. Perpetual conservation easement is designed to give peace of mind to current landowners worried about their beloved property being sold to developers by heirs

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Significant tax benefits: donations are tax deductible for the loss in value to the land because of the covenant iv. Requirements: Land must 1. Be restricted for one of several general purposes: outdoor recreation, wildlife habitat, scenic enjoyment, agricultural use, or historical important 2. Donation must be perpetual v. Environmentalists concerned with preserving local environmental values see conservation easements as a potentially powerful tool in combating commercial development. g. Criticism: Dead hand control, donor over-valuing their easement for tax deductions, sometimes given to people with no real public benefit created, public pays for it through tax $ and foregone development opportunities but have no say in the process because it is done through individual landowner negotiations. IX. Termination of Covenants: a. Changed Circumstances: Bolotin v. Rindge (1964) i. Facts: P owns unimproved lots which are subject to deed restrictions that require lots be used solely for single., private residences which expires in 1970. All lots but those 4 have been improved with singlefamily residences. P sues for declaratory relief against tract wide restrictions to single-family use. ii. Rules: 1. A Court will declare deed restrictions to be unenforceable when, by reason of changed conditions, enforcement of the restrictions would be inequitable and oppressive and would harass P without benefitting the adjoining owners. 2. A building restriction will not be enforced where changed conditions in the neighborhood have rendered the purpose of the restrictions obsolete. But if the original purpose of the covenant can still be realized, it will be enforced even though the unrestricted use of the property would be more profitable to the owner. 3. Restatement of property: A promise as to the use of land is binding upon successors of the promisor only if the enforcement will result in benefit in the physical use or enjoyment of the land. Physical use or enjoyment = must make the use or enjoyment more satisfactory to the physical sense and not enough that income from it is increased. iii. Holding: No finding that purpose of restriction is obsolete and that enforcement will no longer benefit to D. Adverse monetary effects alone are not sufficient. Case remanded to determine if D derives benefit from the restriction remaining. b. Abandonment, estoppel, public policy i. Peckham v. Milroy (2001) 1. Facts: P lives in residential community. Ds family moves in, begins operating day-care business even though house is subject

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to restrictive covenant prohibiting the use of the property for business of any kind 2. Rules: a. Abandonment: i. Requires proof that prior violations have eroded the general plan and enforcement is therefore inequitable. ii. A covenant is abandoned when it has been habitually and substantially violated, but a few violations do not constitute abandonment b. Holding: 1550 homes and only 4 businesses. Violations neither habitual or substantial c. Laches: i. Requires 3 elements: 1. Knowledge of reasonable opportunity to discover on the part of a potential P that he has a cause of action; AND 2. An unreasonable delay by the P in commencing that cause of action; AND 3. Damage to the D resulting from the unreasonable delay. ii. Holding: Ds made home improvements for reasons other than the day care, and P did act in a timely manner. d. Equitable Estoppel: i. Requires 3 elements 1. An admission, statement or act inconsistent with the claim asserted afterwards; and 2. Action by the other party in reasonable reliance on that admission, statement or act; and 3. Injury to that party when the first party is allowed to contradict or repudiate its past admission, statement or act. ii. Silence can lead to equitable estoppel: Where a party knows what is occurring and would be expected to speak, if he wished to protect his interest, his acquiescence manifests in his tacit consent. iii. Holding: P did not stay silent, he complained to the county and to D, and D also never relied on his acquiescence. 3. Holding: Restrictive covenants in neighborhoods barring home businesses are enforceable.