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Part I – Acquisition of Property 1) Purchase 2) Acquisition by Capture a) Wild Animals: Possession and Ownership (17-35) Possession – finder must acquire

physical control and have intent to assume dominion over item Relativity of title – idea that a person can have a relatively better title or right of possession than another, while simultaneously having a right inferior to yet another person. Pierson v. Post (Fox case; rule of capture – need actual possession of animal) H/R: Mere hunting an animal doesn't vest title. One must mortally wound, physically capture, or kill the animal in order to have his title in it vest. vs. Ghen v. Rich (Whale case) H/R: When a hunter catches an animal according to established custom, title to the animal is acquired. Keeble v. Hickeringill (Duck case; rule – right to be free from malicious interference) H/R: A landowner has the right to use his land to lawfully capture wild animals. Any interference with the landowner's lawful exercise of this right is actionable at law. Constructive Possession. Ratione Soli – when the law treats individual as if he is in possession although he really isn‘t or is unaware of it. Policy Reason: prevents trespassing. Owner may constructively posses something on his premises of which is he in unaware, so owner is entitled to ―prior possessor wins‖ rule. Fugitive Resources (such as water, oil, gas, etc.) – owner of land owns the minerals but if multiple owners own land, first to tap mineral is the owner. Can only drill straight down (bottoming rule) and not laterally (trespass). Similar to animals because movable and don‘t stay in one place. Cons include overconsumption and prevents conservation. Rule of capture applies. b) The Problem of the Commons and the Economic Theory of Property (35-50) 1) Harold Demsetz theory of property rights* –If a person seeks to maximize the value of his communal right, he will tend to overhunt and overwork the land because some of the costs of his doing are borne by others. The stock of game and richness of soil will be diminished too quickly. Hurts future generations. In CO, owner is not concerned with costs b/c they are borne by others. Negotiation is also difficult and costly. PO forces owner to economize costs, and lessens needs to overuse since there is no danger of someone else using your resources, it‘s yours. - Externalities = costs that a user does not have to take into account in deciding how to use a resource. Private property solves problem of common property by allowing owner to economize use of those resources (reduces externalities). Other solutions include statute (regulations), custom and liability. 2) First in time - establishes a priority of rights based on time of acquisition of right

3) Labor Theory (John Locke) – you own anything that you create from your own labor. 4) Acquisition by Creation Arguments for property rights in creation: 1) Allows creator to enjoy fruits of labor 2) Incentive to put in work, time, etc. to create new product/idea, more productive to society Arguments against property rights in creation: 1) Creates monolistic power for creator, no competition, less productive 2) Better for society to allow for more competition, leads to better product and lower price Intellectual Property INS v. AP H/R: "Quasi-property rights" may be invoked to protect against unfair competition by competitors, even when the commodity in question is not "owned" by anyone (like the news). More specifically, when the news has commercial value, it becomes "quasi-property." Dissent – Competition depends upon imitation. The public as a whole may be better off, as long as this freedom to imitate does not destroy the incentive for people to come up with new devices. vs. Doris Silk Corp. H/R: Absent a patent or protection under statute, a company's property interest in its product is valid only for the products it creates. "Others may imitate these at their pleasure." Chanel H/R: Chanel No. 5 was copied by Smith who sold it at a cheaper price, court ruled in favor of Smith claiming that ―imitation is the lifeblood of competition.‖ Reversed lower ct holding that Smith was relying on natural rights and had ruled in favor of Chanel (John Locke‘s labor theory)—competitors should not be able to take a free ride.* What accounts for the conflicting results between Doris/Chanel and INS? In INS, the work was pretty much done by AP. In Cheney, mere inspiration was taken. INS focuses on fairness arguments, but Doris + Chanel were focusing on efficiency arguments. Intellectual Property Rights - Competition v. Monopoly IP cases reflect tension between desire to stimulate creation by awarding monopoly rights versus the desire to reduce the cost and increase the quality of goods through competition 1) Patents a) they are for non-obvious processes, machines and inventions b) gives holder exclusive right to create the product for 20 yrs after invention was created. After that patent can‘t be renewed-this sends pharmaceutical companies in a ―tizzy‖ because their expensive drugs are now going to be recreated 2) a) b) c) Copyrights protects the expression of an idea (not the ideas themselves) in books, articles, etc. now automatic—as soon as an idea is expressed it lasts the life of a creator plus 70 years. allowed fair use exception permits certain excerpts to be used

the use of an imitation (not a likeness) of a celebrity for commercial profit infringes her right of publicity. and are limited by it. H (S. Ct also did not want to harm future medical research. Universal H/R: "The sale of copying equipment. Court held that P did not have property rights in his spleen following its removal from his body by doctors who made it into a patented cell line of great commercial value. Trailer case– Ct granted $100k in punitive damages against D who willfully moved his trailer across P‘s land after P objected. Shack – attorney goes on P‘s land to check welfare of migrant workers. transfer.‖ Samsung . Similarities were from the public domain anyway. Court was concerned about making body products property that could be sold. They are recognized to that end. Diamond– case involving denial of patent application related to D‘s invention of a human-made. right to exclude has limits when important rights of others become involved. Respondent's micro-organism constitutes a "manufacture" or "composition of matter" w/in statute.‖ Morpheus Case: H/R: Court ruled that it was copyright infringement because it was impossible for MGM to go after every person that stole off of Morpheus thus imposed liability on the software distributor. exclude. vs. H/R: Individual and societal interests may sometimes trump property interests. ―Awful holding. genetic engineered bacterium. does not constitute contributory infringement if the product is widely used for legitimate. (―Play/copyright case – P alleged copyright infringement‖) H/R: Court held the two productions had similar qualities but also differences and did not constitute a copyright infringement.‖ b) Extent of Property Rights (69-93). like the sale of other articles of commerce.3) a) b) c) Trademarks words or symbols associated with a product (cheerios. vs. coke) protects the mark not the products themselves last indefinitely unless it becomes very associated w/ product (ex. Property rights serve human values. However. Nature of Property Bundle of Sticks = includes right to possess. (eput – rida) Right to Exclude – essence of private property is the right of the owner to exclude others. State v. unobjectionable purposes. Xerox) Universal Pictures Corp.Even though there was no intent to deceive. use. Ct): ―A live. human-made micro-organism is patentable subject matter under the Patent Statute. Sony v. etc. Right to include/exclude 1) Limits on Property Rights Moore – Cell case. .

belongs to the owner or possessor of the premises (unless the true owner is located).Acquisition by Find and Adverse Possession Law of Finders and Prior Possessors – chimney sweeper found piece of jewelry and has better title to all others except the true owner. gift. hostility is implied. but it must be notorious to give the true owner actual or constructive notice of the encroachment . AP must use property as any owner would. Tacking – adding of time of prior adverse possessors to satisfy SOL reqs. or inheritance. Abandoned– property the true owner intentionally and voluntarily relinquished. AP must possess the property for the entire statute of limitations period--Avg is 6-10 yrs. Mislaid– property true owner intentionally placed and then left.* Common legal relationship occurs by contract of sale. 5) Continuous for the statutory period – Only requires the degree of occupancy and use that the avg owner would make of the property. notorious or exclusive b/c no knowledge (by either party in this case) that land was being adversely possessed. etc). They did not know. New York rule. 2) Exclusive – adverse possessor holds the land to the exclusion of owner + public 3) Open and notorious – means the adverse possessor‘s use of the property is so visible that is constitutes reasonable notice to the owner of a claim of dominion. Thus. Modern courts will give permit to a GF encroacher to remain by ordering various remedies (damages. b) Aggressive Trespasser (NJ rule) – here the claim of right means the possessor has a good faith belief that he has title. Elements – always apply all elements to a given fact pattern 1) Actual – gives notice to legal owner and others who come to the property that the adverse possessor is using the property and indicates that the AP may be claiming the property and has ousted all other persons. c) Good Faith View – in a boundary dispute mistakenly believing that neighbor‘s land is yours qualifies as AP. R: Prior possessor has superior right over subsequent possessor* (in real + personal property). Privity – relationship necessary to allow tacking. Lost property – property the true owner unknowingly loses – belongs to the finder . Mannillo – D made improvements on their home shortly after they bought it. Acquisition by Adverse Possession Overview: If a landowner does not bring an action to eject an adverse possessor w/ in the statutory period. Can lead to lying by AP (state of mind relevant). Intent is irrelevant as long as all other elements satisfied. Purpose is to reward productive use of land and give effect to expectations—a basic policy of property law. the owner is thereafter barred from bringing ejectment action. but it encroached onto the P‘s land by 15 inches R: Possession need not be knowingly and intentionally hostile. 4) Hostile/adverse/claim of right – no permission from owner (consent defeats this req) a) Objective view – The possessor action’s must appear to be the acts of the owner. Marengo Caves– not open. this view rewards GF trespasser but not trespasser who knew what he‘s doing at time he enters land.

at the end of the summer. a) physical delivery b) Constructive – handing over some object that will gives access to gift (key) c) Symbolic – handing over something symbolic of the property given (deed) . an oral agreement to settle is enforceable if the neighbors subsequently accept the line for a long period of time. The second party is said to have acquiesced to the claim and is estopped from challenging it later. or imprisoned. though the line of previous occupants stretches back beyond the 10-year statutory requirement. Innocent Improver – Cts will look at relative hardships. Elements: 1) Delivery – requires objective acts. No continuity b/c they would not have made any improvements. Acquiescence (passive assent) – provides that long acquiescence (though shorter than SOL) is evidence of an agreement between the parties fixing the boundary line. but if a person entitled to bring such action.Kunto F: P mistakenly builds home on the lot adjacent to the land described in his deed. and the second party fails to challenge or refute that claim within a reasonable time. has been there for summer months. D. Suppose that instead of building a home. R/H: 1) In order to establish "continuous" possession. is within the age of minority. Disability Statute An action to recover the title to or possession of real property shall be brought within 21 years after the cause thereof accrued. Modern cts enforce it even if there‘s evidence of some failure to comply with the wills act formalities. Trad. Color of Title (constructive AP) where instrument for one reason or another is defective. Eventually. it must be. 2) Acquisition by Gift Types of Gifts Gifts Causa Mortis – a gift made in expectation of immediate approaching death—substitute for a will (revoked if donor recovers from illness). Gift Inter vivos – a gift between living persons. after the expiration of 21 years from the time the cause of action accrues. rule: if object can be handed over. may bring such action within 10 years after such disability is removed Boundary Disputes – Equitable Remedies (Doctrine of …) Agreed Boundaries –if uncertainty b/w neighbors as to the true boundary. such person [or anyone claiming for such person]. at the time the cause of actions accrues. the Kuntos used the lot each summer for camping. P tries to quiet title to the land in the deed. an actor need only possess in a manner that "ordinarily marks the conduct of owners in general…It is not necessary that the occupant should be actually upon the premises continually. The owner might be compelled to give up the property and maybe receive compensation from the encroacher or even sell property built. of unsound mind. as long as intent is clear. Estoppel – is applied when one party gives legal notice to a second party of a fact or claim.‖ 2) Tacking the adverse use of predecessors is allowed when there is privity of estate.

These elements must be proved by the donee by clear and convincing evidence. B has a remainder White v. . Constructive delivery is allowed only when it is impractical to deliver actual possession. a modern cts make a strong presumption that a fee simple interest was conveyed. Part II – The System of Estates Estate – defined as an interest in land which is or may become possessory and measured by some period of time (even if indefinitely). it‘s required. descendible .Basics: 1) Duration: potentially infinite 2) Creation: ―To A and his heirs‖. . ―O to A for life‖ – A has a life estate. alienable. O has a reversion 2) Remainder: FI in Transferee. Gruen v. 1) Possessory Estates a) Fee simple absolute defined: Fee = interest in land Simple = ownership of unlimited duration Absolute = no future interest can cut off the ownership.2) Intent – must be shown by oral evidence 3) Acceptance Newman v. ―O to A for life. Brown –R: While CL favored the life estate. devisable. ―To A‖ 3) Transfer: Alienable (saleable). devisable (passed through will). A fee simple will be conveyed unless the words and phrases of the will clearly evidence an intention to transfer less than a fee simple. Future Estate – a future interest that gives its holder the right to possess land in the future. Present Estate – a present (or possessory) interest that gives its holder the right to possess land right now. Bost (life insurance policy in will. Where manual delivery is possible. which was in drawer. then to B‖ – A has a life estate. descendible (passed through intestacy if die w/o will) 4) Future Interest: None b) Life Estate defined: 1) Duration: interest in land that lasts for the life of the holder or the life of a 3rd party 2) Creation: ―To A for life‖. Gruen (painting case…p‘s son sues step-mom for deceased father‘s painting) R: To make a valid inter vivos gift the donor must intend to transfer title. the donor must either actually or constructively deliver the gift to the donee and the donee must accept the gift. ―To A for the life of B‖ (pur autre vie) .(pav = 3rd party) 3) Transferable: (for the duration of measuring life). Law of Waste – Life tenant is entitled to use of land but cannot waste it.) R: Symbolic delivery of a gift is not effective.Life estate is always followed by a Future Interest 1) Reversion: FI in grantor. ―To A in fee simple‖.

FI in the Grantor. Eamples: on the condition that.indicates durational nature of estate Future Interest: FSD is always followed by a possibility of reverter in the Grantor. so long as the premises are used as an ice cream parlor‖ (defeasible life estate) ―to A for 10 years. then to. Examples: ‗so long as…. then to M. provided that) FI: FSSCS always followed by a Right of Reentry in the Grantor (implicit or explicit) Transfer: like fsd. while. descendible but always subject to the condition. until‖ . Examples: ―to A so long as the premises are used as an ice cream parlor‖ (defeasible fee simple) ―to A for life. fsscs is alienable. but if Blackacre is ever used as a factory. FI in the Transferee. divisable.a present interest in land that may end upon the happening of an event in the future. F shall have a right to reentry. F to L on the condition that the property be used for residential purposes.. and if not…. you have a fsd or fsscs Step 2: if the FI holder is the grantor.If a 3rd party. look for magic words Types of defeasible fee simples: (memorize) i) ii) Fee simple determinable (fsd): fee simple that will terminate automatically when a stated event occurs Examples: ―so long as. you have fssel . descendible but always subject to the condition Fee simple subject to executory limitation (fssel): fee simple that terminates automatically upon the violation of a condition (like fsd) and passes to a 3rd party (unlike fsd and fsscs).Affirmative (voluntary): when life tenant destroyed property or exploits natural resources Permissive (involunatary): when land is allowed to fall into disrepair Defeasible Estates . so long as the premises are used as an ice cream parlor (defeasible leasehold) A defeasible fee is always followed by a Future Interest.‖ To L. then to B‖ Identifying Defeasible Fees (Summary): Step 1: Identify the future interest holder . to. devisable. in the event it is not so used. FI: fssel is always followed by an executory interest in a transferee named in grant.If it is the grantor.‖ ―but if…. Fee simple subject to condition subsequent (fsscs): until happening of named event and reentry by grantor. Transfer: alienable. but if.. Executory Interests . iii) - 2) Future Interests .* FI in Grantor: ―to A so long as the premises are used as ice cream parlor‖ (possibility of reverter) FI in Grantee: ―to A so long as the premises are used as ice cream parlor.

if B graduates. upon natural termination of prior estate (cannot follow a defeasible fee b/c those end unnaturally).Requirements: Held by Grantee. . Right of Reentry: traditional rule – neither can be sold modern rule – allows possibility of reverter to be sold but not right to reenter 2) In 3rd party (In Grantee) . then to B for life‖) .Universe of FI 1) In Grantor . (subject to open as long as original is alive) Rules for class gifts: Vesting: Class gift vests when one member of class can be identified.Remainder in Fee Simple (―O to A for life. or else it reverts back to O) --If A dies. Contingent remainder – either in an unascertained person or subject to a condition precedent. unless some event occurs which divests the remainderman of its interest ―To A for life. B has to graduate college. then to B‖) . (To A for life. the remainder is a contingent remainder 1) * Hints for classifying remainders following life estate: .Possibility of reverter (fsd) – FI in the grantor following a fsd (O to A so long as used for library purposes) . O has the right to reenter and retake the premises). then to B and his heirs. but if B does not graduate from law school. capable of becoming immediately possessory (no condition precedent). Vested remainder subject to total divestment – remainder that will become possessory. then.LE  Vested Remainder Subject to Divestment  Executory Interest  No reversion . Closing: class closes pursuant to the Fertile Octogenarian Rule or Rule of Convenience. Estates in Remainder . to B. does B still get it after graduating? Yes. Classifying Remainders If a condition follows the granting language. Reversion vs. CL = no.Remainder – FI in a grantee that is capable of becoming possessory at the natural termination of a prior possessory estate (generally a life estate).Right of reentry/termination (fsscs) – FI in fsscs (O to A but if it ceases to use the land for library purposes.Remainder in FSD (―O to A for life. O might hold it in trust until then. then to B so long as‖) Vested Remainder– in an ascertained person and not subject to any condition precedent Indefeasible vested remainder – remainder that is certain to become possessor in a particular person Remainder subject to open or partial divestment – remainder in a class of persons that is certain to become possessory in at least one class member. then to C‖ B has vested remainder subject to divestment and C has an executory interest.LE  Contingent remainder  Contingent remainder  Reversion . If condition precedes or is part of the granting language.Reversion (life estate) – arises whenever O transfers less than his entire interest (O to A for life or for 2 years) . the remainder is a VR subject to total divestment.Remainder in Life Estate (―O to A for life.

Rule: No interest is good unless it must vest. A has fssel and B has shifting executory interest. 5) If an interest is not certain to vest or fail.e. 5 Step Approach to RAP Problems 1) Determine the Future Interest that is created by conveyance The RAP only applies to: Contingent remainders. no later than 21 years [and 9 months] after some life in being at the creation of the interest. gift is void for the entire class. with certainty. but if A does not graduate from law school.Determine whether the interest must vest or fail to vest within 21 years and 9 months of the validating life (person who is alive at time of creation and related to interest) 4) Will we know. within 21 years of the death of our validating life. In essence. and options and rights of first refusal 2) Identify the condition precedent to vesting (What has to happen before FI can vest?) 3) Find a validating life . the rule limits the testator's power to earmark gifts for remote descendants.Alive and relevant: Look for a person alive at the date of the conveyance and their death is directly related to whether the condition will be satisfied (i. if at all. strike it from grant* RAP: Vesting of FI Contingent remainders and executor interests vest when the condition precedent is satisfied. RAP prevents a person from putting qualifications and criteria in his will that will continue to control or affect the distribution of assets long after he or she has died.. a) Rule Against Perpetuities RAP at common law invalidates certain future interests (like contingent remainders and executory interests) that may vest beyond the time of perpetuities.Class gifts in vested remainder subject to open vest when 1) The class closes 2) And all the condition precedent for each class member‘s interest are satisfies All or nothing rule: if condition is not satisfied for one class. Executory interest follows a fssel or a vested remainder subject to divestment.. if the interest will vest? If not certain. When A marries her FI will divest O of his FSSEL. 2) An executor interest with no time limit violates the RAP. B‘s executory interest will divest A of her FSSEL. Shifting executory interest – divests a 3rd party. then to B and his heirs. Vested remainders subject to open (i.e. .Executory Interest – is a FI in a 3rd party that is not a remainder and that divests another interest. then grant fails and RAP applies. If A does not graduate. . a concept often referred to as control by the "dead hand" or "mortmain". To A and her heirs. class gifts). Common perpetuities scenarios: 1) Gift to an open class conditioned on the members surviving to an age beyond 21 violates the RAP. O has fssel and A has a springing executory interest. on A‘s death we will immediately know whether A had any children). Springing executory interest – divests the original grantor. Executor interests. . To A when she marries.

Inc. 1996) – most common type of litigated RAP and this is the modern rule. since that would amount to giving effect to the option. 3) Concurrent Estates a) Types of Concurrent Estates 1) Tenancy in common – ―To A and B‖ . But if you survive the other even by one second.* Riddle F: Couple hold real estate as JTs. but not devisable or descendible Creditors: Reachable during life of tenant 3) Tenants in the Entirety – ―To H and W‖ (marriage is assumed) Requires 4 unities + marriage Unseverable right of survivorship* At CL.Ownership: Percentage need not be equal .Creditors: Reachable by creditors 2) Joint Tenancy – ―To A and B as JTs w/ right of survivorship‖ Right of Survivorship – surviving co-tenant atomically becomes property owner once the other dies (benefit is that there‘s no need for probate) * Requires 4 unities – PITT: possession (JTs must have right to possess entire parcel).Perpetuities Reform 1) Cy Pres – court will reform an instrument to validate contingent interests. (Court of App of NY. Inc. The Symphony Space. Similarly. . title (must acquire title by same instrument/title). interest (must possess equal interests and interests must last same amount of time). time (created at the same moment). devisable. 3) Perpetual Trusts – some states have modified the rule to exempt perpetual trusts if trustees have the power to alienate the trust property. 2) Wait and See – court will wait and see what happens instead of imagining scenario under which the rule would be violated.Transferable: Alienable. since it would lead to the same result as enforcing the option and tend to compel performance of contracts violative of the Rule. Note: if JT‘s die at the same time half goes to one heirs and half goes to the others. - Sawada (Hawaii) R:: The separate creditor of either spouse may NOT reach the property held in tenancy by the entirety. Transferable: Alienable. damages are not recoverable where options to acquire real property violate the rule.Possession: Each has an equal right to possess the whole . Dying wife realizes H will take over her interest. R: Allowed. Modern law varies. Pergola Properties. H/R: RAP reflects the public policy of the State. and descendible . reachable by creditors of Husband. v. attempting to carry out the grantors‘ intent in a way that does not violate RAP. you get all the property. and conveys a one-half interest in the property to herself in order to sever the joint tenancy. Granting the relief requested by Ds would thus be contrary to public policy.

2) JT has the right to lease his interest to a third party without the consent of other joint tenant. R: 1) A conveyance of a lease by one joint tenant to a third party does NOT sever a JT. Boxing Ring case: Couple are JTs. Entitled to increase earning potential. and its economic value. (like Mahoney) vs. Modern Law: Equitable distribution 2) Community Property: divided 50/50 – All property earned by the couple. unless the couple agrees otherwise. 3) Separate property is property acquired by gift or inheritance or property owned by a spouse prior to marriage. usually courts will look at objective commercial value and divide it by sale. 3) Upon divorce. Marriage of Graham (CO) . 4) Upon death. or bought with the earnings. Elkus (NY) – Famous opera singer marries trainer then divorces. during marriage is held as community property regardless of the nominal title. Partition by sale is when the court sells the property and distributes the proceeds to tenants according to their interests. property distributed according to intestate statute. W gets mad at H about boxing ring and sues to cancel lease. can be a marital asset subject to equitable distribution. O’Brien (NY) – Degree held to be marital property because its an investment in the economic partnership of marriage and that the product of the parties‘ efforts should be considered marital property. Termination of Marriage by Divorce (What is considered marital property varies by state)* In re. Partition in kind is when the court divides up the jointly owned property into individually owned property according to the interests of the parties.b) Relations Among Concurrent Owners Delfino – unusual case. 4) Marital Interests – Common Law Marital Property System (see Swada) Division of Property upon Divorce: 1) CL: Property belongs to spouse. property divided like marital property.court held MBA not marital property. a) Community Property System (341-344) Community Property Characteristics 1) No right of survivorship 2) Transfer: neither spouse can transfer without consent of other 3) Management: spouse with title or possession of property manages as fiduciary 4) Creditors: of managing spouse can reach any property that spouse is entitled to manage b) Rights of Domestic Partners (DPs) Property Rights in Domestic Partners 1) Express + implied Ks sometimes used to award property to DPs upon death or divorce 2) ALI adopts CL approach: DPs must share primary residence + a life together as a couple. Ct held that celebrity status. (Elkus follows this ruling) Elkus v. .

R: If a lease grants a personal right to the named lessee to terminate at a date of his choice. 1) Selection of Tenants (Herein of Unlawful Discrimination): Protection Civil Rights Act § 1982 Bars racial or ethnic discrimination only FHA Bars discrimination based on race + ethnicity and religion. 1. LL effectively entered into a new lease on a month-month basis. 2009‖ so it ends December 31.Duration: continues for successive periods of fixed duration (ex: month-month. disability and against ppl w/ kids Sale or rental of dwelling only.Lease must terminate on last day of a period 3) The tenancy at will – . national origin. old ppl housing Type of Property Sale of rental of all property Exemptions None . LL dies and LL‘s estate (P) orders tenant to leave. and is subject to the terms and conditions of the lease. Notice of Termination: None required 2) The Periodic Tenancy – . Tenant refuses. also includes advertising for sale or rental of dwelling. ―to T for two years beginning Jan. A) The Leasehold Estates (4 forms) 1) Term of Years – . yearyear) unless notice of termination given. 2011.Part III – Leaseholds: The law of Landlord and Tenant (non-freehold estates) Leasehold Estate is an exclusive right of possession of real property for a specified period of time. it is a fairly typical means of creating a life tenancy terminable at the will of the tenant. Notice of Termination: . owner of 1-3 single-family dwellings. CL gives LL w/ a holdover essentially 2 options: Eviction (+ damages) or Consent (expressed or implied) to the creation of a new tenancy. not to exceed 6 months . Crechale – D holds over.Duration: known fixed period. terminable by either party without notice (modern statutes required some period of notice) Also terminates upon the death of one party.Year to year = CL required 6 months notice (shorter under modern statutes) .Notice of Termination: At CL. owner of building w/ 4 or fewer units. Private clubs.Duration: so long as both LL and T desire . Ct held that since LL cashed check even after stating that he treated D as trespasser. Intent based approach – ML: look at intent of parties to determine type of lease Formalistic approach – CL: tries to fit into one of the leasehold tenancies Garner (Intent based) Tenant (D) enters into lease w/ LL where tenant reserves the sole right to terminate the lease. which is granted in exchange for the payment of rent. sex. 4) Tenancy at Sufferance: Holdovers – Arises when a tenant remains in possession (holds over) after termination of the tenancy.Less than year to year = equal to period.

Privity of estate (physical possession of premises) – L + T. (meaning the tenant is entitled to possession again before the tenant‘s lease expires) . Sublease – In sublease. P of K is simply describes why LL + tenant are liable to each other (they have a K). In assignment.Right of entry retained: CL – here sublease is an assignment since no reversion was retained. (see chart on 279) Assignment = tenant transfers entire remaining interest to assignee. Conditt . Duties and Remedies) The Tenant in Possession defaults by not paying rent. L cannot sue T2. not between tenant‘s assignee or sublessee. B) The Tenant Who Defaults (Rights. the assignee comes into a privity of estate w/ the LL and each sue the other on lease covenants which run w/ the land. Some cases have looked at the intent of the parties.. ML varies.Racing course case.Reversion retained: CL – a sublease occurs if tenant retains a reversion. . Privity of K (relation to K itself) – exists even after transfer unless agreed to substitute assignee or sublessee in place of tenant. LLs can discriminate based on profession. L would have to sue T1 who would consequently sue T2. If there is Privity of K then the parties obligations bind regardless whether or not there is privity of estate. Berg v. not in ny) Assignment and Subletting – What you can do w/ leaseholds unless the lease prohibits. Majority Rule: lessor may arbitrarily + unreasonably deny approval of assignee.2) Other forms of Discrimination: Sex – FHA prohibits sex discrimination. .‖ (not including druggies) Ex. L + T‘s assignee but not sublessee. Impermissible to rent 1 BR to 2 adults and 2 kids but not to 1 adult 1 child.. such consent may be held only where the lessor has a commercially reasonable objection to the assignee or the proposed use. including harassing tenants for sexual favors. Family Status – Permissible to limit number of occupants to maintain economic value of the property. Sublease – a tenant can sublease and thus become the LL of sublessee. Handicap – ―a physical or mental impairment which substantially limits one or more of the handicapped persons major life activities. LL is req to provide reasonable accommodation. P of E describes why an assignee and an original party to the K are liable to each other (a new LLtenant relationship is created b/w assignee + other original party in K). Assignment vs. Sublease = tenant sublets an less than entire interest Assignment – a tenant can assign her interest in the leasehold. Thus. seeing eye down must be allowed even if there‘s a no-pet policy. L can sue T2 directly. H: Lease is an assignment b/c D didn‘t retain any interest Kendall* (aiport case – minority rule held) H: Where a commercial lease provides assignment only w/ prior consent of lessor. NO privity of estate b/w sublessee and original LL. Wiley (wrongful eviction from restaurant – MR held) CL rule is that a LL may use self-help to retake leased premises from a tenant w/o incurring liability if 2 conditions are met: LL is legally entitled to possession and the landlord's means of reentry are peaceable. (In most states. fails to observe lease obligations or is a holdover. Landlord and tenant.

When breached substantially by LL. . H/R: LL maintains duty to mitigate damages and must prove he used reasonable diligence in attempting to re-let apt. or to stay but pay less or no rent. Rule is based on efficiency.Modern rule is that there is no self help ( must use summary proceedings). Partial Eviction: eviction only from part of the premises. prevents economic waste. LL refuses to cancel lease or to rent the apt to anyone else. cts have applied the doctrine of constructive eviction as a remedy for tenant. LL sued for breach. Based on idea that tenant cannot by his own wrongdoing impose a duty on the landlord out seek out new tenants ―continually. or LL‘s failure to provide something essential that LL had a duty to provide. which is protective of tenants. If T abandons possession. CQE: LL promises T quiet enjoyment of premises.‘‘‘‘‘ 1) The Tenant Who Has Abandoned Possession Sommer . pro-landlord state. Action for declaratory judgment – get court to state there is constructive eviction (do not have to vacate).‖ However. LL can terminate lease.Tenant opts out of lease before it begins.Vacate based on constructive eviction. Under this rule any act or omission of the LL that renders the premises substantially unsuitable for the purpose for which they are leased. Breach reqs: 1) Affirmative acts of the LL. 2) tenant (or t‘s guest) might be injured by allegedly defective premises + claim damages against LL. no concern for condition of premises. and Remedies (Regarding the Condition of the Leased Premises) 1) Landlord’s Duties. LL sues for lost rent for entire term. in general. Contract damages for anticipatory breach C) Duties. Rights. New York – very traditional. Do nothing + collect rent as it becomes due (mitigate). After term of lease is over. The only lawful means to dispossess a tenant who has not abandoned or voluntarily surrendered is by resort to judicial process. H/R: Ordinarily CQE is implied in lease. tenant is relieved of liability for rent. a) Quiet Enjoyment and Constructive Eviction*: Realty– Tenant left property after repeated flooding. Constructive Eviction (T leaves b/c of LLs failure) T must prove: 1) LL breached the covenant of quiet enjoyment 2) Tenant vacated within a reasonable period of time 3) Reasonable period depends on circumstances of the case (Reste) Remedies for Breach of CQE . Tenant‘s other remedy: can sue for damages equal to the difference between the value of the property with and without the breach other than eviction. Remain in possession and sue for damages. is a breach of CQE and constitutes a constructive eviction of the tenant. CL: tenant takes premises as is. Tenants’ Rights and Remedies: Disputes arise b/w tenant + LL regarding condition of premises in 2 ways: 1) tenant might wish to vacate. common-law and. strict no self help. or which seriously interferes with the beneficial enjoyment of the premises. Re-let while holding T liable for deficiency.

Doesn‘t apply if housing codes violated after lease was made. Tends to eliminate lawsuits about which deed was delivered 1st + punishes nonrecording. D) The Problem of Affordable Housing Chicago Board of Realtors . This statute rests the initial costs of the new standards on LLs and could have the effect of depleting their resources. are hurt. Remedies .In the a absence of a recording statute = ―first in time is first in right‖ (CL rule) . and 2) the defect existed during the time for which rent was withheld. but between A and B. actual notice of prior is irrelevant. Provides incentive to record. the lessor is promising that it is suitable to be lived in Requirements tenant must show: 1) LL had notice of the defect and failed w/ in a reasonable time to repair it. B prevails (MR) 2) Types of Recording Acts a) Race Statute – whoever records first win. the provisions made it harder for LLs to provide affordable housing. usually the poorer. O A (A does not record deed) O B (B records deed) Between A and O. MR usually forbids retaliatory action by landlords renting residential space. Retaliatory Eviction: CL: LL free to terminate tenancies upon proper notice and to refuse to renew expired term of years w/o cause. c) Race and Notice Statute – subsequent purchaser w/o notice is protected against a prior unrecorded instrument only if he records before prior instrument is recorded. Tenant bears burden of proof that eviction was retaliatory.Bona Fide Purchaser (BFP) is a subsequent purchaser.Opinion introduces dilemma of attempting to provide affordable housing. . Posner: When price of rental housing is artificially depressed and the cost to LLs artificially increased. supply falls and many tenants. **************************************************************************** Chapter 8 – Title Assurance – good titles to land purchased A) The Recording System Intro 1) Purpose – facilitate certainty in title and land transfers . making public records complete. thus leaving them w/ little capital to use to the quality of the housing. who in GF and w/o prior notice of an earlier transfer. spends valuable consideration purchasing an interest in real property.K remedies (Damages for tenant‘s discomfort and annoyance) are available. b) Implied Warranty of Habitability: a warranty implied by law that by leasing a residential property. . b) Notice Statute –Protects subsequent purchaser against unrecorded instruments even if she does not record.The Illegal Lease: Lease is illegal and void if it is made w/ violations to housing codes such as unsafe + unsanitary conditions. Unlike race statute where he has to record.With recording statue – ex.Determine breach by looking at local and municipal housing codes and whether the claimed defect has an impact on the safety or health of the tenant. . The ct demonstrated that by selecting portions of the ordinance and analyzing them. Tenant may withhold payment of future rent and deduct expense of repairs (reimbursement). A prevails.

Dinner guests) Type of Easements: Appurtenant or In Gross 1) Easement Appurtenant – benefits owner in the use of his own land .) Negative easements have to be granted. .Profit – right to sever and take something from the land of another (ex. A deed which specifically refers to an earlier unrecorded deed puts a subsequent purchaser on notice of the existence of the earlier deed: thus. and not in capacity as land owner (goes with person). but see Miller. -Generally assignable.Transfers automatically with the land. (see Waldorff) . Harper . . (Ex: A‘s right to prevent B from building on B‘s property if it blocks A‘s windows. Waldorff – Physical possession is constructive notice to all the world and anyone having knowledge of said possession. Written record usually required. it will put upon an inquiry responsibility to those wishing to acquire interest in the property.Does a reference to an earlier deed within a deed in the chain of title provide constructive notice of that deed? (Note: This is a race/notice jurisdiction) H/R: Yes.License – revocable right to use or enter the property of another (ex. often due to another‘s possession of the property. ii) Record Notice – learns of easement or covenant through recorded instrument iii) Inquiry Notice – A purchaser presumed to have notice of facts that would be revealed through reasonable investigation (see Harper) . Affirmative (usual easement) – right to enter/use another persons‘ land Negative – right to restrict another‘s use of his own land. the purchaser claiming under the later deed is not entitled to priority though the later deed was recorded first.Party in possession gives inquiry notice of claim to property. When possession is open.Constructive notice – notice that the law deems you to have regardless of your actual knowledge (record and inquiry). Chapter 10: Private Land Use Controls: The Law of Servitudes A) Easements: Historical Background Servitude – private contractual interests that run with the land and bind successive owners 1) Easements 2) Covenants – Real covenants.Types of Notices: i) Actual notice – arises where one is personally aware of a conflicting interest in real property. unless purchaser is without notice 2) Easement In Gross – benefits owner personally. visible and exclusive. Equitable servitudes Nuisance – judicial remedy for unreasonable use of land Zoning – legislative method of regulating land use Easement – a grant of an interest in land that which entitles a person to use land possessed by another. Lumber and fish) . Easement Appurtenant involves 2 parcels: Dominant estate= land benefitted by the easement + Servient estate = land burdened by it.

before an easement can be held to be created by implied reservation. Division: Divisible unless (a) contrary to intent of original parties or (b) places an unreasonable burden on servient estate (Restatement). unless contrary to parties intent. Miller – (lake case) Easements in gross are assignable as if that was the parties‘ intentions. then the easements must be used in their entirety.an easement can be implied on the basis of necessity alone. Easements In Gross: Assignment: assignable. Negative Easements: ―LAWS‖ Negative easements have to be granted. Grant 2. Van Sandt . Divisible if used as ―one stock‖ (Miller) 2) Termination of Easements: Preseault– (old railroad on P‘s property) . 1) Creation of Easements 1) Express Grant . becomes an easement) if licensee changes position in reasonable reliance of licensor‘s statements.e. unless purchaser has no notice Division: if dominant estate is subdivided.(sewage case) . Implication from Prior Use (Van Sandt)  Common Grantor  Prior Use  Apparent (provide inquiry notice)  Reasonable Necessity 4. each resulting parcel has right to use easement on servient estate so long as they do not overburden servient estate. P should be compensated for Taking by gov‘t. Easements Review: A. elements must be met. Holbrook – an easement is created if licensee changes position in reasonable reliance.. Determine whether an easement has been CREATED: 1. If there is a division of the dominant parcel. only through express grant 3) Change in position – erect improvements or make substantial expenditure. Othen .Ct held that since there was nonuse and conduct demonstrating an intent to abandon.Easement In Gross involves only the servient estate. Implication from Necessity (Othen)  Common Grantor  Strict Necessity (not mere convenience)  Necessity existed at time of severance  Terminates upon termination of necessity . Transfer of Easements: Easements Appurtenant: Assignment: benefit + burden pass automatically to assignees. Estoppel (Holbrook)  Irrevocable if licensee expends money or constructs improvements in reasonable reliance on statement of licensor 3.writing signed by grantor 2) Estoppel – a revocable license is made irrevocable (i. (See Holbrook) but see Dalton – not irrevocable even if considerable expense used.

CLASSIFY the claimed or established easement:  Affirmative or Negative  Appurtenant or In Gross C. Elements of RC: 1) Writing . . Affirmative covenants to pay dues touch and concern land 4) Privity .Defeated only if owner effectively interrupts use (Restatment)  Adverse/Hostile/Claim of Right = without consent .) 3) Touch and Concern land – Promise must effect legal relations as owners of particular parcel.Example: O promises to pay dues to maintain a neighborhood pool Burden: promise to pay attached to O‘s land. physical act and intent to abandon E.Exclusivity = Owner‘s use may defeat adversity (Othen) B. Miller)  Actual Use (no negative easement)  Open and Notorious (provide inquiry notice)  Continuous for statutory period (same as AP) .Vertical privity (required for benefit and burden) . not members of public.5.  Divided automatically unless overburden servient estate  In gross =  Assignment permitted unless BFP. estoppel or prescription 2) Intent to bind successors .  Division permitted if (a) not contrary to intent and (b) not unreasonably burden servient estate or ―one stock‖ rule D. Benefit: right to use pool attached to O‘s land 1) Restrictive covenant: a promise to refrain from doing something related to land 2) Affirmative covenant: a promise to do something related to land a) Covenants Enforceable at Law: Real Covenants Real Covenant: covenant enforceable at law (money damages) – has to satisfy more strict requirements to be real covenant. Negative covenants touch and concern land. etc. Determine whether the easement can be TRANSFERRED:  Appurtanent =  Assigned automatically unless BFP (no notice). Prescription (Othen.Language of instrument (assign to heirs.Horizontal privity (required for burden) . Determine whether the easement has TERMINATED (Presualt)  Abandonment = more than non-use.No RC by implication. Determine whether the easement exceeds original SCOPE? Scope may be adjusted if change is consistent with the terms of the original grant (reasonably foreseeable) (Presault) B) Covenants Running with the Land Covenants: promise regarding land that runs to successive owners of the promisor‘s land.

Burden – identical estate required.Benefit – identical or lessor estate RC Burden and Benefit: Burden Benefit Writing. Intent. Touch & Concern. Horizontal Privity (identical or lesser estate). Touch & Concern. . Touch and Concern land. landlord/tenant) Vertical privity – successor to promisor‘s interest in land . Intent 3. Touch & Concern 4. Touch & Concern 4. Inquiry 2) Standing: 3rd party beneficiary/privity (Neponsit) Servitude Comparison RC Burden 1. Intent 3. Intent 3. estoppel. Standing (successor or 3rd party beneficiary) Restatement 3d 1. Writing. Writing (unless implied) 2. Horizontal privity – shared interest in land other than covenant (grantor/grantee. 2. general plan. Writing RC Benefit 1. unconstitutional or against public policy 4. Restrictive covenant runs with land (negative easement). Writing. Record. Intent 3.A -B (Burden) A X + B Y (Burden and Benefit). See Tulk Elements of Equitable Servitudes: 1) Writing (unless implied from general plan). implication. Vertical Privity . Notice: Actual. Vertical Vertical Privity (identical estate). Vertical Privity (identical estate) 2. prescription. Writing ES 1. No vertical privity if X is an adverse possessor or if landlord/tenant. X has to have same exact estate as A to run. Privity b) Covenants Enforceable in Equity: Equitable Servitudes Equitable Servitudes – covenant enforceable in equity (injunction) – courts have relied on privity of estates to hold subsequent owners of property liable to real covenants. Intent. Intent. Valid unless illegal. Touch & Concern 4. Necessity 2.

To determine whether a covenant ―touches and concerns‖ the land ct uses test of affirmative covenant which is a restriction upon the owner‘s right to use the land and a burden upon the legal interest of the owner rather than a promise to pay which does not affect the land owner‘s legal right which would come with the ownership of the land. 1) Creation of Covenants In Real Covenant . Notice Sanborn v. (2) the covenant is one 'touching' or 'concerning' the land. Affirmative obligation. capricious or spiteful. ES was implied here from the general plan (make up of lots). . Notice 5. If owner of two or more lots sells one with restrictions. Covenant is connected to a benefit to land and should be attached to land itself. Covenant to pay a fee sufficiently runs with the land. McLean (gas station case – ct held for that reciprocal negative easement exists) Reciprocal negative easement bars a use of the land. Touch and Concern 1) Common Law Test: to run with the land. unlimited in time resembles a feudal service or perpetual rent + puts a clog on titles. 3) Scope of Covenants Hill (AIDS home permitted to remain in a single family residence area) – removal violated FHA Court held it is residential b/c purpose of group was to provide a normal family atmosphere. Unreasonable restraint on alienation or trade. unconstitutional or violates public policy. unconscionable Negative covenants (like restricting flag display) might satisfy. the other lot or lots are bound to the same restrictions. P couldn‘t sue b/c they did not have vertical privity and courts did not enforce affirmative covenants to pay land. touch and concern land. In Equitable Servitude – express or implied from a general plan or common scheme (Reciprocal Negative Easement = implied equitable servitude) 2) Validity and Enforcement of Covenants Neponsit* – P. Cts reluctant to enforce affirmative covenants b/c: reqs continuing ct supervision. (3) there is 'privity of estate' between the promisee or party claiming the benefit of the covenant and the right to enforce it. Fees were required by covenant. D should have known of use by observing the lots around his.Restrictive covenants and affirmative covenants to pay money to be used in connection with maintaining land. Unreasonably burdens a fundamental constitutional right.5. and the promisor or party who rests under the burden of the covenant. the promise must benefit/burden the land and not the parties individually. 3. Horizontal Privity 5.* .* Under CL. acquired a lien on D‘s property for failure to pay fees to P.writing required. homeowners association. Rest. Servitudes that violate PP include: Arbitrary.1: Servitude is valid unless it is illegal. H/F: A covenant will run w/ the land + be enforceable against a subsequent purchaser only if: (1) the grantor + grantee intended that it should.

covenant made by private individuals to exclude sale based on race. West) Rest. H/R: Ct holds covenant among private individuals violates 14th A (FHA not yet made) Negative covenants  uses to land not user.Covenant remains of substantial value to the other homeowners (Western Land) . Changed Conditions Changed Conditions Modification: Covenant won‘t be modified even if the value of the restricted parcel is reduced. Covenants do not run with RAP. Estoppel.considers whether board exercised its discretion in GF Western Land – (shopping center cannot be built on residential land b/c of covenant) Restrictive covenants will not be thwarted or rendered unenforceable as long as these covenants are still of real and substantial value to those homeowners living within the subdivision.Holdouts: restrictive covenants will be enforced by injunction unless unconscionable or oppressive (Rick v.Definition of family not defined in covenant and thus ambiguous. Merger. Common Interest Communities – Usually in CICs any requirement of horizontal or vertical privity is met because the original purchasers are all in privity with the developer and subsequent purchasers are in privity with the original purchasers. Recording. Nahrstedt (restrictive covenant in deed against keepings pets – ct finds it‘s reasonable) H/R: A restriction contained in declaration of the common interest development will be enforced unless the restriction is arbitrary. Condemnation. Restatement 3. Any requirement that a covenant touch and concern the land is usually satisfied. unreasonable or violates PP.1) Later Adopted Covenants: Reasonableness (Nahrstadt) – b/c subsequent purchasers are not aware of earlier covenants. RAP = future interests + covenant = present interest. Rick v. unless the attitude of the complaining owner in standing on his covenant is unconscionable or oppressive. burdens substantially outweigh benefits for all parties or if it violates public policy (Nahrstadt. Abandonment. Law finds in favor of free enjoyment of property. restrictive covenants in respect of land will be enforced by preventive remedies while the violation is still in prospect. Holds that family means unrelated individuals b/c of PP reasons. if . 4) Termination of Covenants: Expiration. Release. Shelley . Business Judgment Rule . 7. Prescription. . and . Negative covenants restricting use are almost always held to touch and concern. as are affirmative covenants to pay dues to a homeowners association.10: Covenant may be modified when a change has taken place that makes it impossible as a practical matter to accomplish its original purpose (compensation for harm may be awarded) Judicial Review of Covenants Original Use Restrctions are valid unless arbitrary.Original purpose has not been thwarted. West (owner refuses to modify covenant restricting land to single-family housing) Rule: By settled doctrine of equity.* Covenants stand even though property has greater value if used for other purpose.

H: Under the circumstances here. no chance for negotiation. Justified by sovereignty argument and economic efficiency (prevents monopolies. (Stoyanoff). Other alternatives . Takings Clause (5thA). H/R: Economic development constitutes a public use of property. (check on eminent domain power). etc). while disciplining power of the state. legitimately used to protect property values and community character. Compensation – needed to serve the dual purpose of offering a substantial measure of protection to private entitlements. the village‘s ordinance is a valid exercise of police power. ―Just Compensation‖ = only get market value. people few and cars restricted are legit guidelines in a land use project addressed to family needs. 12 – Eminent Domain (+ Problem of Regulatory Takings)–another way of land use control. The Public Use Puzzle . Local legislature enacts + amends zoning ordinance based on commission recommendations + in accordance with a comprehensive plan.Chapter 11 – Legislative Land Use Controls: The Law of Zoning. .Under what circumstances such government activities should be regarded as takings? Kelo* . Public Land Use Controls.Nor shall private property be taken for public use w/o just compensation. Dissent – any lawful use of real private property can be said to generate some incidental benefit to public and corporations will benefit the most. drafts zoning ordinance w/ guidance from professional planners. Realty failed to show that ordinance is discriminatory and has no rational basis Zoning Restrictions: Aesthetics: Zoning is exercise of police power. Framework of Zoning Zoning Commission (experts): Composed of political appointees/volunteers. Eminent domain or taking – power of government to force transfers of property from owners to itself. claiming that the economic benefits constituted public use.) Ch. (Edmonds.‖ (Belle Terre).City took resident's property for private interests by means of eminent domain to further economic redevelopment of the area.get 10% over market value. Ct upheld the constitutionality of a residential zoning ordinance that limited the number of unrelated individuals who may inhabit a dwelling: ―A place where yards are wide. Single family residence restriction does not qualify for occupancy exemption under FHA. Prof – both sides got entrenched in extremes. Single Family Residence: S. ―Taken‖: Physical takings or Regulatory takings (zoning) ―Public Use‖ (Kelo) = public purpose. Board of Adjustment grants variances Euclid – Village passed zoning ordinance which significantly reduced its use and value for Realty (D). Realty sues claiming he was deprived of his property—unconstitutional taking. Limited by 5th Amendment in that need just compensation.