Property 130 Outline

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What is Property?........................................................2
How do you acquire property?..............................................2
Adverse Possession......................................................3
Additional Property Rights: Publicity, Copyright, Trademark, Patent.................6
Property rights in Human Tissue............................................9
Estates in Land and Future Interests........................................10
Future Interests:........................................................15
Rule Against Perpetuities (aka the rule against perpetizzle).......................16
Concurrent Ownership...................................................17
The Recording System.................................................21
Nuisance............................................................24
Servitudes: Easements.................................................25
Servitudes: Real Covenants & Equitable Servitudes...........................31
Protection against Discrimination in Housing................................40
Eminent Domain......................................................40
Regulatory Takings....................................................44

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1) What is Property?
a) A property interest is a right which the law will protect against infringement by others.
i) We usually arent talking about the actual physical property; were talking about the rights to that property (that
overlay the actual property).
b) Real property (land), personal property (chattels), and intangible property (e.g. intellectual property)
c) Bundle of Sticks (Rights); Property rights include the:
i) Right to Exclude others
(1) Basis for Trespass (exclude people/things) and Nuisance claims (exclude noise, fumes, intangible things)
(2) Jacques v. Steenberg Homes (p.4) Trespasser ordered to pay punitive damages (even though no actual
damages were suffered). Right to exclude is so fundamental that it merits an award of punitive damages.
The damage is to the right itself (not to the actual property).
(3) Intel Corp. v. Hamidi (p. 20) Hamidi sent several unsolicited emails to 20,000 Intel employees using
Intels private serversBecause Hamidis emails didnt actually harm Intels servers, no trespass to
chattels occurred.
(a) Summary: Trespass to Chattels must involve actual harm to physical object OR dispossessing the
owner of the object for a period of time. Harm to right itself (w/o damages) is not actionable, unlike
trespass to land. Historically land has been viewed as more important (was means of production, and
viewed as symbol of power/prestige). Dissent: Availability of self-help is basis for this rule; In this
case no self help was available.
(4) Exceptions to Right to Exclude:
(a) Emergency or Necessity (e.g. burning boat pulling up to your dock)
(b) Retaking stolen chattel, if in fresh pursuit
(c) State v. Shack (p.12) Farmer did not have right to exclude charity workers for migrant farmers from
his property (therefore aid workers did not trespass)The well being of the workers on the property
was more important than the farmers right to exclude.
ii) Right to Possess it
iii) Right to Use it
iv) Right to Transfer
(1) Give it as a Gift
(2) Sell it (alienable)
(3) Pass on to children (inheritable)
d) A property owner may have some, but not all, of these rights
e) All of these rights are subject to limits imposed by society
2) How do you acquire property?
i) Possession: First in Time
(a) What constitutes Possession?
(i) Possession requires:
1. Physical control of the item, AND
a. Where complete physical control isnt practical (e.g. whaling, diving for sunken treasure),
industry customs can be taken into account when determining if possession.
2. Intent to possess
(ii) Wild Animals
1. Pierson v. Post (p.34) Post was hunting a fox; Pierson intervened at the last minute and
killed the foxFirst in Time principle (First person to establish possession owns a wild
animal). In order to establish ownership of a wild animal you must either physically take
possession of it OR mortally wound it, secure it with nets, or otherwise deprive it of its natural
liberty and render escape impossible.
2. Keeble v. Hickeringill (p.40) Neighbor fired his gun to scare off ducks in Ps decoy pondD
was maliciously interfering with Ps trade of duck hunting; if he scared off the ducks by
engaging in the same trade (e.g. built his own duck pond), he would not be liable.
3. Landowner has superior rights to animals on his own land: ratione soli
4. If an animal escapes and returns to its natural state, then possessors ownership rights are
extinguished

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(iii) Popov v. Hayashi (p.46) Popov tried to catch Bonds 73rd home run ball but was attacked by a
mob, after which Hayashi got the ball. Ct. ruled that Popov never had possession, but in order
not to encourage mob behavior, they ordered that the proceeds be split.
(iv) Anderson v. Beech Aircraft Corp. (p.55) Beech bought gas and injected it in underground
reservoir partially beneath Andersons property; Andersons lessee began produce gas from the
reservoirCt. used Law of Capture: Gas is part of the Real Estate until it is actually produced;
Like a wild animal, once Beech injected the gas back into the ground, they lost ownership (same
with water).
1. Not universally applied Gas is different from wild animals; processed gas is actually
different in composition than natural gas, and gas doesnt escape, it is moved about
mechanically
2. Policy Against Doctrine: Both parties encouraged to produce gas as quickly as possible Bad
result for societySome cts. have instead imposed a fair share doctrine.
ii) Discovery/Conquest
(1) Johnson v. Macintosh (p.116) Johnson bought land from Indians; Macintosh later bought the land from
the US govt. Land awarded to Macintosh. Conquest gives a title which the courts of the conqueror
cannot deny. Johnson would have had a claim in Indian courts, but not in US courts. Indians had
possession of land, but not title in it.
3) Adverse Possession
Sample Definition
An action to recover the title to or possession of real property shall be brought within twenty one years after the cause of
action accrued, but if a person entitled to bring the action is, at the time the cause of action accrues, within the age of
minority or of unsound mind, the person, after the expiration of twenty one years from the time the cause of action
accrues, may bring the action within ten years after the disability is removed.
Definitions:
Color of title You have a written document (although invalid) upon which youre founding your claim.
Claim of title/ownership You have an intention to own (NOT necessarily a written document).
The following conditions must be met:
a) Actual and exclusive possession
i) AP must possess a reasonable percentage of the land. AP only acquires the portion of the land that they
actually physically occupy (e.g. Nome v. Fagerstrom they only acquired North end, not South end).
(1) Exception: if you have color of title, you can get the entire area described by the instrument (if its a
contiguous unit)
b) Adverse or hostile possession Possessors occupation must NOT be permissive (e.g. cant be a tenant).
Objective, not subjective, standard.
c) Claim of right (various meanings by State)
i) Objective Standard: Possessor must be acting as owner of property (not as a trespasser would act), OR
ii) Good-faith Standard (Minority): Good-faith belief that possessor owns the property
(1) Color of title (e.g. invalid deed) can satisfy this; other jurisdictions might require color of title AND good
faith.
iii) Bad-faith Standard aka Aggressive Trespass Standard (Small minority of states, if any): Possessor
intentionally acting to acquire property he doesnt own
d) Open and Notorious Possessor must fly his flag so that owner has opportunity to see that someone is acting
as owner.
i) Must act as a typical owner of a similar property would act (one frame of reference: focusing on APs
actions).
ii) Actions should be such that a reasonably diligent owner would be expected to know that someone is on their
land (other frame of reference, focusing on what the owner should be expected to notice).
(1) Nature of land taken into account when determining what constitutes open and notorious
(2) A fence/enclosure would satisfy this requirement (although its NOT required especially in a city).
(a) Physical improvements to land are NOT required (Nome v. Fagerstrom: Alaska).

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(3) Community view of whether AP acted as an owner is taken into account

(4) Paying taxes is evidence of this, and is required in CA
(5) Owners lack of knowledge of its interest in the property is NOT a defense against Adverse Possession
(Lawrence v. Town of Concord)
As long as APs use is Open & Notorious, it doesnt matter if the owner actually knows about it; in fact,
AP probably wants to hide it from owner to some degree (Lawrence v. Town of Concord) and thats
okay.
e) Continuous Must be maintained for the statutory period.
i) Seasonal use or intermittent use may be sufficient (if its what ordinary owner would do)
ii) Re-entry by owners breaks the chain (even if its brief), so does acquisition of title by govt.; Break by 3 rd party
intrusion doesnt break continuity
f) For the statutory period

You cannot adversely possess against government land except in specific situations
o Policy for govt. exception to AP
The monitoring costs to the public would likely be too high.
Impossible to monitor public parks, etc. maybe there should be an exception for certain types of
public property
o Policy against govt. exception to AP
Nuisance properties: Vacant properties where the city is paying money to clean them up
periodically. If govt. is going to ignore this land, maybe society would be better off if there were
squatters
Govt. shouldnt get preferential treatment over private property owners. If we think that property
is the means of production (maybe not still valid) if govt. doesnt use it productively, then we
should allow AP
Society is better off if poorly used land in the commons (govt.) is put into effective use in private
lands
Tacking
o Adverse possessor may transfer his interest in the property to another (so that you can add the 2 APs
time periods together to meet the statute of limitations. There must be an agreement to transfer, and the
time periods must be consecutive.
o Owner can NOT tack If O1 conveys property to O2, the statute of limitations doesnt restart for AP
(unless its a life tenant/remainder situation).
The cause of action accrues when all of the adverse possession elements begin to be satisfied (person openly
and notoriously occupies land, with hostile intent, etc.) This is not necessarily when they first set foot on the land.
Type of Adverse Possession is determined by the Owner (person with possessory interest) at the time cause of
action accrues. Since the AP is only using the possession stick to get the land, they can only AP against the
person with possessory rights to the land (NOT future interest holders):
o If Owner has fee simple absolute, at point of entry, then you AP against full title (even if he later conveys
property to a life tenant or someone else).
o If Owner is life tenant, you can only acquire life tenants possessory interest (Once he dies, you must start
all over again and Adversely Possess against the owner of the Remainder).
o In a landlord/tenant situation, you can only AP against the tenant (for their possessory interest for the
length of their lease) b/c landlord cant bring trespass action (only person w/ possessory interest can bring
trespass action).
Minor/disability statutes only apply to condition that exists at the point the cause of action accrues.
o You cant tack disabilities. Only disability of owner at time of entry qualifies.
o See Sample AP exercises in separate word doc.
o Policy: We keep these exceptions because were dealing with Black Acre; if the owner somehow loses
the property through no fault of their own, we want to protect the Black Acre (not just their $$ interest in
the property).
Policy Criticism: Statute could run for an extremely long time
Landlord/tenant Tenant can only AP against landlord if he repudiates the lease first

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Mistaken boundary Most courts hold that a boundary mistake (large enough to be visible to the naked eye) CAN
constitute valid AP (e.g. if neighbor builds a fence 15 yards into other property, AP will begin).
Rights of Adverse Possessor:
o AP can bring an action for trespass against 3rd parties while they are adversely possessing (but not
against true owner)
o After statutory period, AP is subject to any benefits/ burdens (e.g. easements) that were on the property.

Policy Reasons for Adverse Possession:

i) We value the labor that AP has put into the property
ii) We want land to be used productively; not abandoned/ignored
iii) MOST IMPORTANT USE: Quieting title/Perfecting title Makes land more marketable, which benefits
society economically
Policy Against Adverse Possession:
i) Rights of owner being harmed; he didnt do anything wrong
ii) Reduces incentive to own/purchase property
iii) Makes property ownership more expensive (b/c of monitoring costs)
iv) Method of redistributing wealth from rich to poor; taxation and social programs a more effective way of doing
this
v) Complicated and expensive process figuring out who actually owns propertyDoes it really achieve its goal
of making property transactions more efficient?

Adverse Possession Cases

o Ewing v. Burnet (p.128): Ewing originally had valid deed to property. Burnet (AP) dug sand and gravel
from the lot, gave permission for others to do the same (and refused permission to others), he leased the
property, brought trespass actions, and paid taxes. Witnesses testified that he was in possession of the
propertySuccessful; AP acquired right to land.
o Nome v. Fagerstrom (p.131): Native Alaskans successfully adversely possessed Northern portion of land.
They used land seasonally, they built a picnic area, placed a camper on the property, built an outhouse
and fish rack, planted some non-indigenous trees, a reindeer shelter. Community testified that their use
was that of a typical owner. They allowed others to fish on the land (construed as act of hospitable
landowner; did NOT violate exclusive requirement). In the southern end of the lot, their only activity was
hiking on the trails and picking up litter. The 4 cornerposts they placed on each corner of the lot dont
provide notice. Therefore, they dont get title to this portion of the land.
o Lawrence v. Town of Concord (p.138): Town didnt know (and didnt have a very good way of knowing)
that they owned the propertydidnt matter; it is towns responsibility (not APs) that they know of their
ownership right. Town also didnt know about AP (husband who moved into the house his wife had left to
the city)As long as AP was open and notorious, this doesnt matter. AP got title. This was before
statute preventing AP against the city. AP Evidence: Lawrence paid tax bills for a period of time; he
rented out the property; his name appeared on the towns street lists for most of the time. He was
nervous that the town would find out that he really didnt own the propertydidnt matter; they used the
objective standard for claim of right (actions, not state of mind, are what matter).
o Mannillo v. Gorski (p.145 note): Minor encroachment along the property border was deemed NOT open
and notorious. It was not apparent to the naked eye, and would have required an on-site survey.
o Foot v. Bauman (p.145 note): Neighbors underground sewer that ran under Ps property WAS deemed
open & notorious. There were 3 manhole covers on the Ps land between the house and the town sewer.
o Kiowa Creek Land & Cattle Co. v. Nazarian (p.149): Person tried to AP 1) against someone leasing from
the govt. for 2) a prescriptive easement. Rule against AP against the govt. also applies to easements,
didnt get easement.
o Dieterich International Truck Sales, Inc. v. J.S. & J. Services, Inc. (p.152): AP sought easement against
landlord and their lessee. General Rule: AP can only Adversely Possess against person with possessory
interest in the property (Lessee in this case)All that he can get is the right to the lease. Landlord cannot
bring an action for trespass against AP b/c he doesnt have possessory interest. Landlord can only take
action if harm is being done to the owners inheritance (under the waste doctrine). Ct. ruling: Adverse

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Possession is NOT a harm to the future inheritance; Landlord could NOT take action against AP;
therefore it was tenants failure not to eject APLandlord can NOT lose title to AP.
AP only acquires tenants possessory interest in the property.

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4) Additional Property Rights: Publicity, Copyright, Trademark, Patent

a) Right of Publicity Is a property right. Protects a persons interest in the commercial exploitation of their name,
likeness, and identity.
i) Ironically, roots in the right to privacy (as well as trademark, unfair competition, and copyright)
ii) Applies to everyone; not just celebrities
iii) Source of right:
(1) Statutory Law
(2) Common Law (broader protection, at least in Cheers case)
(a) Conflict w/ Federal Law Which would protect copyright owner in the Cheers Case
iv) Wendt v. Host International, Inc. (p.193): D owns Cheers airport bars. D purchased a license from Paramount
to use Cheers characters for their bars. They set up animatronic robots that vaguely resembled Norm and
Cliff (Wendt & Ratzenberger), complete with taglines from the show. Wendt & Ratzenberger sued D.
(1) Ct. ruled for Wendt & Ratzenberger. Anything that evokes the person can constitute likeness
(manner, quips, dress, etc.), and could therefore violate their right of publicity.
(2) Policy: Why protect actors rights?
(a) PRO Companies shouldnt be allowed to use actors likeness w/o their consent. E.g. People would
think actor supported product, even if they didnt.
(b) CON Stifle creativity (tougher to create spin-offs if you cant use characters). Expensive for owners
of copyright to figure out who they have to pay to use characters. Its impossible to portray a
character without evoking the image of the actor who played the character
v) Zacchini v. Scripps-Howard Broadcasting Co. (p.201): Zacchini performs a human cannonball act. He told a
reporter not to tape his act, but the reporter did so anyways. They showed the entire act on the news.
Zacchini sued for $ damages (he couldnt get injunctive relief; they had already shown the act).
(1) Ct. rules for Zacchini. Zacchini has right of publicity (protectable property interest). The press has
1st/14th amendment protection, but they did not need to show the ENTIRE show in order to cover it as
news. E.g. they could have commented on the act and shown a picture.
(2) Policy: Zacchini:
(a) How far is right to exclude? Should other human cannonball performers pay a licensing fee?
(i) How truly unique and original is it to shoot yourself out of a cannon?
(ii) From the other side, how different would the other performer have to change the act in order to
protect himself from potential litigation?
b) Property Rights in Writings, Recordings, and Product Designs
i) Copyright Law
(1) History:
(a) Originally copyright only applied to physical copy (not the concept/idea)
(b) Then they extended this concept to protect the work itself, not just the physical copy
(c) The Fair Use doctrine has evolved as an important exception to the rights granted by a copyright
(2) Purpose: To encourage the creation of new and creative works of art and literature. Provides an
economic incentive for authors to publish books and disseminate ideas to the public. This promotes
learning. By limiting the length of the copyright, we allow the work eventually to enter the public domain.
(3) Lifetime + 70 years protection
(a) In the Gone With the Wind Case, they brought copyright infringement based on the sequels, not the
original (Sneaky way to get another 70 years)
(b) The length of copyright protection is being extended, while at the same time the Fair Use Doctrine is
being expanded. Because the copyright protectors are typically big business (and people using the
Fair Use Doctrine are less likely to be so), this essentially hands control over to big business.
(4) Protects originalliterary, dramatic, musical, artistic, intellectual works
(5) published & unpublished
Work must be original e.g. you cant copyright databases if theyre only compilations (like the
telephone book).
(6) What you get:
(a) Exclusive right to use the work
(i) You do NOT get a right to the ideas contained in the work
(b) The right to create derivative works

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(c) Right to distribute & sell copies of the work You can exploit the commercial value of the work itself
(but NOT the idea)
(d) Right to display the work publicly
Limitations:
(7) Idea/Expression: Copyright cannot protect an idea, only the expression of that idea. Other may build
freely upon the ideas and information conveyed by the work.
(8) Fair Use Doctrine is an exception to these rights:
(a) the fair use of a copyrighted workfor purposes such as criticism, comment, news reporting,
teaching, scholarshipor research, is not an infringement of copyright.
(i) 4 factors must be considered:
1. Purpose and character of the use (of new work)
a. Is it for commercial or nonprofit purposes?
i. TWDG = Commercial (Shes selling the work for profit)
b. Is the work transformative or is it very similar to the original?
i. TWDG was transformative it took the facts of GWTW and changed key elements
enough to be a creative, different work. As a parody, TWDG had to use a lot of
protected material in order to evoke the original sufficiently to be able to transform it.
ii. The fact that the Suntrust Bank refuses to grant licenses for this type of
transformative work seems important to the concurrent opinionif the ct. doesnt do
anything, works of this type will be completely stopped by Suntrust.
2. Nature of the copyrighted work (i.e. Gone With the Wind)
a. Greater protection is given to original, creative works [As a society, we are concerned
with encouraging new, creative works]. GWTW is given the highest degree of protection.
3. Amount and substantiality of the portion used
a. In this case, how much detail is necessary to evoke GWTW, and how much is more than
is necessary? Difficult question that the court wrestles with.
4. Effect on the Market Value of the Original
a. For a parody, the key question is Will the new work act as a market substitute?
i. P hasnt done much to prove the likelihood of actual harm. It seems that Suntrust is
not really trying to protect $$ interests; theyre trying to protect their image.

Case: Suntrust Bank v. Houghton Mifflin Company (The Wind Done Gone, p.207): Randall wrote The
Wind Done Gone, a parody/commentary of Gone With the Wind. [See analysis above]

ii) Trademark (protected by the Lanham act)

(1) Purpose: Allow consumers to easily identify products from a certain manufacturer (based on its
look/design); Primarily a consumer protection purpose avoid consumer confusion; It allows companies
with good products to reap the benefits of consumer loyalty. Protecting companies interests is
secondary.
(2) Perpetual protection (No set time limit)
(a) you have the right to renew licenses/registrations
(3) Certification marks (Identify a product Good Housekeeping), and Service marks (Identify a service
Fedex)
(a) Limitation: Animal Care Certified eggs certification mark is misleading, and (acc. to the FTC should
NOT be protected)
(4) What you get (If youre registered):
(a) Exclusive right to use the certification mark. Note: Unless it is a famous mark, you can only enforce
this right when consumer confusion is likely to occur (i.e. against competitors in the same industry).
(b) If youre registered, you have the legal presumption that YOU (not another company) has the right to
use the mark
(c) Ability to bring suit in federal ct.
(d) Ability to get the US Customs Service to prevent importation of infringing foreign goods
(e) Can prevent dilution of the brand (even if its not a direct copy); e.g. McSleep hotel chain was shut
down by McDonaldsOnly applies to famous brands, b/c only in this case will consumers likely be
confused (McDonalds got into the hotel business?)
(5) Issues with Trademark cases from textbook:

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(a) You havent created a trademark through registration, but something that you use in your product has
acquired a secondary meaning that should entitle you to get trademark protection.
(b) You can NOT trademark something that provides unique functionality (cant use trademark to
circumvent the patent protection).
(6) You can NOT trademark:
(a) Anything that is FUNCTIONAL.
(i) From Qualitex: In general terms, a product feature is functional, and cannot serve as a trademark,
if it is essential to the use or purpose of the article or if it affects the cost or quality of the article.
That is, if exclusive use of the feature would put competitors at a significant non reputationrelated disadvantage, it is Functional.
(b) A generic label: When a mark becomes so commonly associated with a product that it is a generic
label, it loses protection (e.g. aspirin, cellophane, and shredded wheat are all trademarks that
became so widespread that they committed genericide.)
(c) Anything immoral, deceptive, or scandalous.
(d) Things for public safety (e.g. a red light)
(7) Trademark Dilution If you have a famous trademark (e.g. McDonalds), you can keep companies in
other industries from using your trademark (e.g. McSleep hotel chain).
(8) Trademark v. Trade Dress
(a) Trade Dress is the packaging or labeling of a product, and has been extended to the total image of
the product, and may include features like size, shape, color, textures, or graphics. Trade Dress rules
provides some protection, but not as much as a trademark. Trademark is typically registered, and
provides additional protections. Registration is important; it provides notice to the world.

Qualitex Co. v. Jacobson Products Co. (p.249): Qualitex has been selling dry cleaning pads of a unique greengold color since the 1950s. Jacobson, a competitor, began selling pads of this color in 1989. Qualitex got a
trademark for the color in 1991 and brought suit.
o Ct. rules for Qualitex; that a color can be trademarked. Color fits definitional requirement of trademark (it
can identify and distinguish a co.s goods); it doesnt go against TM objectives (of making it easier for
consumers to identify goods); it is not functional (if we ever run out of colors, as D suggests, then it WILL
become functional).
o Question Are we encouraging sloppy consumerism they should be reading the label!

Traffix Devices, Inc. v. Marketing Displays, Inc. (p.254): P Marketing Displays, Inc. had a patent on a dual spring
design for a sign holder. When the patent expired, a competitor, D Traffix, reverse engineered the product and
began selling copies. P brought suit for trademark infringement (based on the similar names of the products),
trade dress infringement (based on copied design), and unfair competition.
o Supreme Ct. rules for D; Design cannot get trade dress protection. LEGAL DEFINITION OF
FUNCTIONALITY: When a product feature does something that puts competitors at a significant non
reputation-related disadvantage, it is Functional and cannot receive trade dress (or trademark) protection.
Company requesting trade dress protection has the burden of proof (must prove that it is NOT functional).
A prior patent is very strong evidence that a feature is functional.
o From Qualitex: In general terms, a product feature is functional, and cannot serve as a trademark, if it is
essential to the use or purpose of the article or if it affects the cost or quality of the article. That is, if
exclusive use of the feature would put competitors at a significant non reputation-related disadvantage.
iii) Patent Law
(1) Purpose: To encourage creativity and new scientific advances. Provides an economic incentive for new
scientific discoveries.
(2) What you get: Right to exclude others from making, using, or selling the invention in the US, and from
importing the invention from abroad.
(a) NOT saying that YOU have the right to make; e.g. I have patent from new type of firework, and I could
be prevented from making the firework by other safety laws. If anyone gets to make it, its you.
(b) Patent office doesnt decide whether invention is in societys best interest (policy decision for
legislators); it only decides if it should be patentable.
(3) 20 years of protection

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(a) Because the exclusivity granted by a patent is powerful, however, we do restrict patents more than
trademarks, e.g. shorter time period.
(b) During the 20 years; the manufacturer will try to modify the invention enough to make it different than
the original invention, in order to get a new 20 years.
(4) Cant get a patent for:
(a) Certain things can NOT be patented: laws of nature, naturally occurring things, physical phenomena,
and abstract ideasmanifestations of nature, free to all men and reserved exclusively to none.
(i) Cant get a patent for salt; Can get a patent for a specific process of refining the salt.

Diamond v. Charkrabarty. (p.262):

o Chakrabarty filed a patent application in 1972 for a new human-made, genetically engineered bacterium.
Ct. ruled that the patent was valid. Congress wanted to give patents a wide scope and intended
a broad interpretation of patent laws. The bacterium was man-made, so it shouldnt be excluded
as a naturally occurring substance.
iv) What do Copyright, Trademark, & Patent they have in common:
(1) They deal w/ incentives to create intangible things (inventions, literature, etc.)
(2) They do this by protecting the tangible assets (sellable products) associated w/ the intangible things
(3) Want to incentivize Creativity, NOT just pure Labor
(a) Public Health & Safety concerns (cant patent a red light)
(b) Want to allow criticism of creative works (e.g. The Wind Done Gone)
(c) Allow humorous uses (not quite parody)?
(d) Civil Rights Entertainment industry specifically hires 40 yr. old white male. Should they be allowed
to discriminate like this?
(i) This puts 1st amendment directly against the Civil Rights laws

Balancing Act How long is too long?:

o If you give too much protection, the monopoly that is created could stifle economic activity.
o On the other hand, some protection is required in order to provide the incentive to develop new concepts,
ideas, etc.

5) Property rights in Human Tissue

a) Moore v. Regents of the University of California (p.266): John Moore went to D doctors for treatment for leukemia.
Without telling Moore, the doctors used his cells in their research and created a valuable cell line.
(1) Ct. ruled that D had breached a duty to Moore; either a fiduciary duty to disclose facts or the performance of
medical procedures without the patients informed consent
(2) However, CA courts have not found that people have a property interest in their cells/tissue. Also, CA laws
severely limit rights to excised cells by regulating how they must be disposed (safety statutes). So many
rights are eliminated that what is left cant be considered property rights. Cell line is patented, so it cant
belong to Moore.
(3) Implications of Decision:
(a) Fair balancing of relevant policy interests Shouldnt extend tort of Conversion
(i) Chill public research
1. Expensive to pay patients for tissue
2. Downstream liability (to other doctors who use the cells)
3. Less new cells (if people wouldnt sign forms)
(ii) Patients right to make autonomous medical decisions (already taken care of by the Right of
Disclosure)
(iii) Not brought up in case: Govt. has right to take property of citizens for the public good. If organs
become property, could the govt. take them in a Eminent Domain maneuver?
(iv) Commodification of the body If its property, then you can buy and sell body parts.
1. Person sells spleen for $; Then when their other kidney goes bad, we will have to pay $ to take
care of them.
(b) Problems in this are better suited to legislative solution; not the courts
(c) Tort on conversion is not necessary to protect patients rights

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(4) Question: When are there property rights in the body?

(a) After death, next of kin DO have property interest in the body, and have right to exclude.
(b) When you go to the doctor, you do NOT have property rights in the cells that they remove.
b) Case: Newman v. Sathyavaglswaran (p.284): CA Statute authorized the coroner to remove and release or
authorize the removal and release of corneal eye tissue from a body within the coroners custody without any
effort to obtain the consent of next of kin ifthe coroner has no knowledge of objection to the removal. Coroner
took corneas from Ps son. P brought action alleging the taking of their property without due process of law.
Inverse Condemnation: Govt. acts and you characterize it as a taking of property in order to get compensation.
(1) Ct. rules that Parents do have property rights in the corneas of their dead son.
(a) Common law bestowed certain property rights of next of kin to a body
(b) CA law imposes a duty on next of kin to dispose of a body 1899 case, the ct. held that this duty required
the recognition of exclusive rights of possession, control and disposition; therefore, the next of kin have
property rights in the body
(c) After that, CA started calling them quasi property rights
(d) 1968: Uniform Anatomical Gift Act (UAGA) grants next of kin the right to transfer parts of bodies in their
possessionSort of property right
(e) CA statute recognizes the rights of parents to transfer or refuse to allow the transfer of childs organs;
These are an important part of property rights (including the Right to Exclude)Therefore, parents have
property rights.
c) Case: US v. Willow River Power Co. (Note p.295): Power company sued the US for damage done to its electric
generation capacity when the govt. raised the water level of a river 3 feet above its ordinary level. This reduced
the amount of energy generating capacity of the plant. Ct. ruled that P did NOT have property rights in the
level of water. Seems more like an eminent domain/inverse condemnation case.
6) Estates in Land and Future Interests
a) Types of Conveyances:
i) To A (Anderson) and his heirs: (signify fee simple absolute)
(1) To AWords of purchase: Tell you who the grantee is
(2) and his heirs Words of limitation: define the type of estate that the owner has
(a) In this case, As heirs arent given any rights; they may eventually inherit the property but have no
rights at this point.
ii) Fee Simple Absolute: To A and her heirs
(1) Fee simple absolute; could be created in 3 ways:
(a) To A
(b) To A and his heirs
(c) To A in fee simple absolute
iii) Fee Simple Determinable: To A and her heirs so long as an observation tower is maintained on the property,
and if not then the property reverts to the Grantor, his heirs and assigns.
(1) Words to Create:
(a) Make it clear that the estate will automatically end upon the occurrence of a specific event: so long
as, until, during.
(b) Provision that when the even occurs, the property will revert to the grantor
(2) If A (or his heirs) stops maintaining the tower, title immediately shifts back to GrantorTherefore, A CAN
Adversely Possess against Grantor.
iv) Fee Simple subject to Condition Subsequent: To A and her heirs, but if an observation tower is not
maintained then Grantor, his heirs or assigns shall have the right to enter and take ownership of the property.
(1) Words to Create:
(a) Words of condition: if, upon condition that, provided that,
(b) Provision that if condition occurs, grantor has the right to re-enter the property
(i) Without a re-entry clause, court likely to treat as a covenant (only get $ damages; not equity)
(2) If A (or his heirs) stops maintaining the tower, A retains title, but Grantor may optionally decide to take the
property backTherefore, A CANNOT Adversely Possess against Grantor (because A still has title)
v) Fee Simple subject to Executory Limitation: To A and her heirs so long as an observation tower is
maintained on the property, and if not then the property goes to C, his heirs and assigns.
(1) Like a Fee Simple Determinable, (except that property goes to C, not Grantor):

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(2) If A (or his heirs) stops maintaining the tower, title immediately goes to CTherefore, A CAN Adversely
Possess against C.
vi) Life Estate: To A for life, then to B.
**Note: Law does not allow you to create a new form of inheritance. They have to be fit into one of these existing boxes.
Present Interest
Fee Simple Absolute
Fee Simple
Determinable
Fee Simple subject to
Condition Subsequent
Fee Simple subject to
Executory Interest/
Limitation
Life Estate

Words to Create
To A (and his heirs)
so long as; while;
during; unless
but if; provided that;
on condition
until (or unless),
then to
but if. then to
for life
NOTE: Without specific
forfeiture language, ct.
will likely interpret as a
covenant and NOT a
conditional grant (b/c
conditional grants allow
forfeiture, which cts.
really dont like)

Future Interest
(Grantor)

Future Interest
(3rd Person)

Possibility of reverter

YES (Against
Grantor)***
NO

Right of entry OR
Power of termination
Executory
Interest
Reversion

Adverse Possession

YES (Against holder of

executory interest)***

Remainder

*** Adverse Possession Note: In this case (and this case only), you do NOT have to be Open and Notorious about
breaking the condition.
b) Policy view of Grantors Future Interest
i) Bad: Ties up property so that it wont be used as efficiently as possible
ii) Good: Want to give owners incentive to amass property. Giving grantor control does this.
a) Hierarchy of Presumptions:
i) Fee Simple Absolute
ii) Fee Simple Determinable
iii) Fee Simple subject to Condition Subsequent
b) Modern Legal Presumption:
i) If the language is unclear, you are assumed to have given the largest grant possible (e.g. a fee simple
absolute, if you have the right to do so).
(1) Possibility of reverter Burden on Grantor to clearly establish this.
(2) If the court determines that there is a condition, they will assume its a Fee Simple Determinable (and not
a Fee Simple subject to Condition Subsequent), unless its very clearly specified
(3) This hierarchy of presumptions is NOT the same in different jurisdictions.
(a) E.g. in CA they legislatively did away with Fee Simple Determinable, but kept the Fee Simple subject
to Condition Subsequent (b/c its not fair that theres no open and notorious requirement for AP
against the fee simple determinable).
ii) In addition, if there is any ambiguity, ct. is NOT likely to rule that a condition has been violated if it means
forfeiture (b/c forfeiture is very extreme).
c) Policy Reasons to support fee simple absolute
i) Forfeiture is very severe burden put on grantor to clearly
ii) Consequences What will give us the most freely marketable land? Removing conditions from
land does this.

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(1) Counter-concern: If the courts consistently interpret these types of grants as fee simple absolutes, will this
impact charitable giving (people less likely to give property, if they cant enforce the restriction)?
d) Case: Station Associates, Inc. v. Dare County (p.326): Ct. ruled that the deed conveyed a Fee Simple Absolute,
NOT a Fee Simple Determinable. In order for court to recognize reversionary interest, the Deed must contain
express and unambiguous language of reversion or termination upon a condition broken. This deed doesnt
have language of reversion or termination, so it conveyed a fee simple absolute.
i) Deed Language: Indenture Typically used for a Grant (A Conveyance of land, which could possibly have a
condition on it); Could also be used to establish a landlord-tenant relationship.
(1) What language supports a fee simple determinable interpretation?
(a) Language that specifies use of the landUse Restriction
(b) Right to erect/remove buildingsWouldnt need to specify this use for a fee simple absolute
(c) terms of this covenant
(d) Rights to go across Grantors land Specifically for use as a lifesaving station
(e) $200 Fair price for a fee simple absolute???
(f) possession of the land right to use and occupy; not ownership of the land
(2) Language supporting a fee simple absolute?
(a) No possibility of reverter language Key distinction
(b) $200 Fair price for a fee simple absolute???
e) Case: Red Hill Outing Club v. Hammond (p.333). Ct. ruled that, although the deed did convey a fee simple
subject to condition subsequent, the condition was NOT violated.
i) Problem with Deed Language: Did not clearly specify what would violate the condition. Not 100% clear if
they broke the requirement that the land shall be maintained and made available to residentsas a ski
slope in accordance with its now existing by-laws
(1) If there is any ambiguity, courts will typically decide against forfeiture, especially in a Fee Simple subject
to Condition Subsequent. The burden is on the grantor to make it perfectly clear what he wants.
c) Restraints on Alienation and Unenforceable Conditions (p.335)
i) Condition must 1) Have a Reasonable objective, and 2) Be for a reasonable period of time.
(1) Absolute restraint on alienation Not enforceable (A sells to B, and wont let B sell the property)
(a) Use Restrictions (e.g. property has to be used as a Railroad Headquarters)
(i) Falls City v. Missouri Pacific Railway City gave RR land to use only as a HQ building. Court
ruled that this condition was VOID.
(2) Partial Restraints on Alienation Sometimes enforceable (reasonableness test)
(a) Cant sell for 100 years Not enforceable
(i) Cast v. National Bank of Commerce (p.336) Condition that the devisee had to live in property
for 25 years was VOID.
(b) Cant sell house until children are the age of majority Probably enforceable
(3) Spite Not Enforceable
(4) Divorce/autonomy as to marriage Not Enforceable
(5) Illegal condition Not enforceable (Not always obvious; like the building is too high)
ii) Policy Reason
(1) Good for the public to free up property and make it marketable. Therefore, we dont want to allow
conditions that tie up property without a good reason.
(2) Charitable donations Tend to be favored by the Courts, b/c it serves a public good. Ultimately, we have
other means of quieting title (e.g. AP).
iii) If condition is ruled void, grantee typically gets Fee Simple Absolute:
(1) He is currently living on land; easier to let him keep it
(2) Ct. seems to be against forfeiture; wouldnt want to force Grantee to forfeit property back to Grantor
because of a mistake in the conveyance
(3) Burden is on Grantor to use clear language, legitimate conditions, etc.
d) Case: City of Palm Springs v. Living Desert Reserve (p.337):
i) Conveyance: From Pearl McManus to the City of Palm Springs, if the site is used as a desert preserve; if not
then to the Living Desert Reserve.

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(1) Fee simple subject to executory limitation.

(a) City holds present possessory interest
(b) Living Desert Reserve holds the executory interest (in a fee simple absolute)
ii) After 3 years, the city decided it wanted to build a golf course. Living Desert Reserve refused to sell out. City
filed to take the Living Deserts future interest through eminent domain. General rule is that owner of a future
interest is not entitled to compensation from condemnation. However, if violation of the use restriction is
reasonably imminent, then future holder can get compensation. BUT reasonably imminent is not
supposed to take into account activity after condemnation. Because the govt. is the present interest holder
AND the condemner, an exception should be made (b/c this rule exists to help the innocent present interest
holder from unfair forfeiture). Ct. rules that govt. must pay fair value for the land = 100% of the fee simple
absolute value.
e) Eminent Domain where the Just Compensation should be paid:
i) General rule: $$ goes to present interest holder (if no breach, and a breach is not imminent), OR
ii) Future interest holder, OR
(1) there is a breach/imminent breach, or
(2) condemning party = present possessory interest holder
iii) Split $$ between present and future interest holders
(1) Tough to be fair: Wherever you start, you always end up favoring the remainder, because:
$ Present Possessory Interest + $Future Interest < $$$Fee Simple Absolute
(a) Market value of land ($200,000)
- Value of restricted fee ($50)
Rest to Future Interest Holder ($199,950)
(b) Market value of land ($200,000)
Value of future interest ($50,000)
Rest to Present Interest Holder ($150,000)
f)

How are defeasible fees terminated?

i) Adverse Possession Note: Adverse Possession in this case does NOT have to be open and notorious (only
time that this is true)
ii) Rule Against Perpetuities
iii) Release of future interest
iv) Buyout/Merger (future interest holder buys out present interest holder)
v) Eminent Domain
vi) Other Legislative Restrictions:
(1) Requirement to rerecord/register the future interest
(2) Statutory limitation on future interest

g) Case: Nelson v. Parker (p.345)

i) Deed:
(1) Russell Nelson conveys property to himself during his lifetime,
(2) Then to Daniel Nelson,
(3) Subject tolife estate in Irene ParkerTroublesome part of deed!
ii) Ct. held that Irene Parkers life estate was valid. Common law rule is that you cant create a reservation in a
3rd party (which would invalidate the life estate to Irene Parker). However, this rule serves no useful purpose,
and would clearly frustrate the grantors intent. Therefore, the rule is ignored.
iii) Note: Different way to draft the deed to avoid this problem:
(1) 2 Step Transaction:
(a) To Russell Nelson a life estate, Remainder to Irene Parker in a life estate (Reversion in fee simple
absolute)
(b) Then convey reversion to Daniel: I want Daniel to have my reversion; Daniel gets a reversion (not
subject to rule against perpetuities)
(2) 1 Step Transaction (This is how ct. interprets the deed):
(a) To Russell Nelson a life estate,
(i) Remainder to Irene Parker in a life estate,
1. Remainder to Daniel in Fee Simple Absolute; Daniel gets Remainder

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iv) Policy for enforcing strict rules terminology (e.g. cant create a reservation in a 3 rd person):
(1) To avoid ambiguity and problems interpreting the true intent of the creator of the willCertainty is
important in property law.
(2) Cheaper to pay a lawyer to do it right than to end up in court
(3) People dont realize that when they set up a life estate, certain problems are likely to arise (e.g. taxes
being paid, upkeep of property, etc.); In the process of getting the information related to the correct
language, you will get useful information about other potential issues with a life estate
h) Case: In Re Estate of Kinert v. Penn Dept. of Revenue (p.349):
i) Deed: Deed gives grantors 2 sons right to continue to reside in grantors property for the rest of their lives or
until both of them have vacated for 60 days. I give, devise, and bequeaththis terminable life estate would
terminate and the real estate and personal property would be liquidated and given to the First Assembly of
God Church of Harrisburg.
ii) Is this a license or a life estate? Unlike a life estate, they cant leave the property for 60 days. They cant sell
their life estate or rent out the property. According to the deed, the interest is essentially inalienable (which
the courts typically wont allow). If alienability is a critical component of a life estate, then this is not a life
estate. Ct. rules that this creates a life estate and the sons, therefore, have to pay taxes on the property.
(1) License (Definition): Right to go on someones property for a limited purpose/time (by common law, the
license is revocable by grantor; although at some point, you cant revoke it any more).
(a) The modern view is that a license is an interest in property (and taxable)
i)

Waste Doctrine
i) Law of waste provides the default rules governing the life tenants responsibilities for care of the property.
(1) Obligated to preserve the land and structures in a reasonable state of repair
(2) No duty to make extraordinary repairs or to rebuild structures damaged or destroyed without his fault.
(a) Types of Waste
(i) Voluntary Trashing the place; decreasing the value of the property
Future interest holder can get injunction AND $ damages
1. Ameliorative Increasing the value of the property (e.g. building a new, better house).
a. Argument Dont allow: Future Interest holder has right to get property in the same
condition as life tenant did
b. Argument Allow: We want to encourage life tenant to improve the property
Future interest holder can get an injunction, but NOT $ damages
(ii) Involuntary/Permissive Failure to properly maintain property (e.g. not painting or fixing small
leaks
(b) Remedies:
(i) Waste is an equitable doctrine: Cts can fashion remedies that are fair and equitable to all parties
involved
1. Damages (generally used if future interest sure to vest) = reduction in value of the future
interest
2. Injunction (generally used if future interest NOT sure to vest)
3. Punitive damages (used to be able to force forfeiture)
4. Forced sale (but not if it would harm future interest holders value)

j)

Case: In Re Estate of Jackson (p.353)

i) Mary Jackson conveyed a life estate to herself, with the remainder to Iola Miller:
Mary Jackson
(Life Estate)
Iola Miller
|-----------------------------------|---------------------------------------------------
|
|
V
V
Hail Damage
$ from insurance company comes in
ii) Ct. rules that Life Tenant should get insurance money, BUT the damage occurred when Life Tenant had an
obligation to repair the roof (otherwise would be waste). Therefore, the $ has to be used to repair the roof.
(1) Note: How well does Life Tenant have to repair?

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(a) Option 1: Leave property in the same shape they got it

(b) Option 2: (Bryant) Life Tenant can make repairs that only last for her lifetime (e.g. do a shoddy job)
Grantor should specify the extent to which repairs will need to be made by the life tenant
k) Case: Hausmann v. Hausmann (p.355): George has the Life Estate, and Charles has the Remainder. George
didnt pay property taxes (apparently in order to remove Charles future interest from the property). Ct. holds
that Failure to pay taxes is waste. However, injunction is not granted. Punitive damages awarded. Failure to pay
property taxes = extension of basic waste doctrine.
7) Future Interests:
Note: State the title by reference to when the conveyance took effect.

Will when grantor dies (and his children become a set class).

Inter vivos transfer some time before grantor dies (children not a set
class).
a) Absolutely Vested:
i) Future interest holder must be an ascertained person, AND
ii) No condition precedent to taking the interest (except, of course, that the person w/ the life estate dies!)
(1) To A for life, remainder to B. OR To A for life.
(a) B has an absolutely vested remainder in fee simple absolute. OR Grantr had a vested reversion in
FSA.
b) Vested Subject to Complete Divestment:
i) Remainder condition subsequent attached to remainder
(1) To A for life, remainder to B; but if B declares bankruptcy, to C.
(a) B has a vested remainder subject to complete divestment. C has a shifting executory interest in fee
simple absolute.
ii) Reversion condition triggers another persons contingent interest to vest
(1) To A for life, remainder to B if he survives A.
(a) Grantor has a vested reversion subject to complete divestment (if B survives A). Daniel has a
contingent remainder in fee simple absolute.
c) Contingent Future Interests
i) Not an ascertained person, AND/OR
ii) A condition precedent to taking the interest
(1) To A for life, remainder to B if he survives A.
(a) B has a contingent remainder in fee simple absolute.
(2) To A for life, remainder to Bs children who reach 21.
(a) Bs children have a contingent remainder (unless B has a 21+ year-old child)
(3) To A for life, remainder to B; but if B declares bankruptcy, to C.
(a) C has a contingent executory interest.
Subject to RULE AGAINST PERPETUITIES (If not held by Grantor)
d) Vested Remainders Subject to Partial Divestment
i) Also called Vested Subject to Open
ii) Group of people may increase in size between time gift is made and time the interest becomes possessory
(1) To A for life, remainder to As children.
(a) As children have vested remainders subject to partial divestment (if more children are born)
subject to RULE AGAINST PERPETUITIES (If not held by Grantor)
e) Executory Interests
i) Shifting from 3rd party
ii) Springing from grantor
f)

Alienability of Future Interests

i) Possibility of Reverter and Right of Entry Common law: NOT alienable or devisable, but are descendible
ii) Reversion Alienable, devisable, and descendible
(1) Descendability Capable of being passed through intestacy statutes (cant convey in a will)

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(2) Devisability Can convey in a will

(3) Alienability Can convey inter vivos (while youre alive)
g) Case: Long v. Long (p.366):
i) Deed: Henry Long granted a property to each of his 3 children: To Jesse S. Long, and the children of his
body begotten, and their heirs and assigns forever.
ii) This created a Fee Tail Estate, which as been abolished in just about every jurisdiction:
(1) Converted into fee simple absolute, OR
(2) Converted into a life estate for grantee, w/remainder to grantees issue living at his death, OR
(3) Present tenant of fee tail has right to convey a fee simple absolute (effectively destroys fee tail), OR
(4) Fee tail abolished, but result left to the judges
iii) Ct. ruled that Grantor held a reversion. Therefore, it was inherited upon his death by all children living at that
time.
(1) ReversionCertainty of future possessionPassed on to Henry Longs children at the time of his death
(1932)Reversion could also be conveyed by quit-claim deed
(2) If it had been a Possibility of reverterOnly have a possibility of future possession; Do not actually have a
property interest until the condition actually occurs (1974)Passed on to living descendants when
interest vests (1974)
8) Rule Against Perpetuities (aka the rule against perpetizzle)
What we should know:
Common Law Rule Against Perpetuities
o Wait and See Rule
Uniform Statutory Rule Against Perpetuities
RULE AGAINST PERPETUITIES (Common Law)
No interest is good unless it must vest, if at all, no later than 21 years after some life in being at the
creation of the interest.
Rule only applies to Contingent Future Interests and Vested Subject to Open.
a) Only affects unvested interests; will NOT affect:
i) Present possessory interests
ii) Vested future interests, unless it is vested subject to open
iii) Future interests held by grantor (Reversion, possibility of reverter, or right of entry)
b) R.A.P. DOES affect:
i) Executory interests
ii) Contingent remainders
iii) Vested subject to open
c) Vesting doesnt mean you have to have actual physical possession, it must be legally vested. This means:
i) Ascertained person
ii) No condition precedent to taking
d) Interest does NOT actually have to vest; we just have to know if it will or wont.
e) Life in being has to be a human life. If no one is identified, it must be someone alive at the time of the
conveyance, who can affect the vesting.
Trick to see if RAP is violated:
|Conveyance
|----------|----------|----------------------------------------------------------------|----------------------------------------
|Assume everyone alive has a child (afterborns)
|21 yrs. later, do we know if the
|All non-afterborns die
|interest is vested or not?
f)

Common Law RAP Rules:

i) FERTILE OCTOGENARIAN: Children can be born at any time of your life (Even if youre 80).

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ii) UNBORN WIDOW: As widow: A can divorce his current wife and remarry someone NOT alive at the time of
the conveyance.
Whenever possible, use peoples name (Instead of As widow, say Jennifer).
iii) Conditions can be met at any time, e.g. probate can take over 21 years: To A for life, then following the
probating of As estate and the payment of all taxes due thereon, the balance to B and his heirs.Violates
RAP
iv) The then living problem: To A for life, [then to As best friend from college for life], then to Os grandchildren
then living
(1) If As best friend is known (ascertained) Vested Remainder
(a) We will know which grandchildren are alive when As best friend dies (We can use As best friend as a
life in being)Passes RAP
(2) A hasnt gone to college yet: As best friend is not ascertained he might not be a life in being at the time
of the conveyance.
(a) As best friend is a contingent remainder. We will know when A dies who this is; this element passes
the RAP.
(i) Os grandchildren then living Have to use A as life in being. A could die, and then >21 years his
friend dies, and only then do we know which grandchild is aliveDoes NOT pass RAP. Get rid of
offending clause.
(ii) Conveyance becomes To A for life, then to As best friend from college for life. (Reversion in
Grantor)
g) Case: In Re Estate of Anderson (p.381)
i) Conveyance: To trustee for the education of descendants of F.A. Anderson, Sr. for 25 years, then to Howard
Davies, and in the event that he is not alive, then to the heirs of his body.
Trustee (O)

FA Andersons descendants
Howard Davis, OR if hes dead
(for education for 25 yrs.)
Heirs of his body
|--------------------|---------------------|-------------------------------------------|---------------------------------
Will admitted
to probate
(actually 9 days)
ii) Howard contends 3 violations against RAP
(1) Educational benefits for 25 years Someone could qualify for educational benefits >21 years after death
of live in being (e.g. afterborn qualifies in year 22)
(a) Trustee takes over, then Howard Davis and all other lives in being die, then another descendant is
born, then after 24 yrs., trustee gives afterborn educational benefitsViolates RAP
(2) Interest created in heirs of Howard Davis body also violates RAP. Then alive may take place >21
yrs. after death of life in being
(a) Davies has an afterborn, then he and all lives in being die, then the 25 year educational benefits run,
then afterborns interest would vestViolates RAP.
(3) Terms are vague, ambiguous or indefinite. If probate took >21 years, RAP could be violated.
(a) Some cts: Statutes exist guaranteeing a speedy probate process; therefore, must be <21 years and
RAP not violated
(b) Some cts: Regardless, it may take >21 years; therefore it MAY violate RAP
iii) Ct. takes Wait & See approach. Therefore, there is not violation of the RAP.
h) Uniform Statutory Rule Against Perpetuities (USRAP)
i) Wait and see approach
ii) Irrebuttable presumption that a widow is a life in being
iii) Reformation (ct. can add a savings clause to keep conveyance from violating RAP)
iv) Alternative 90 year vesting period: The interest either vests or terminates within 90 years after its creation
i)

Wait and see approach

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i)

Common Law: Actually wait until all lives in being at the time of the conveyance die in order to see if anyone
could vest >21 years laterThis could take a VERY long time. If it has already become apparent (by the time
youre in court) that the conveyance will survive the RAP, then the ct. will declare it valid. Otherwise, theyll
just wait.

9) Concurrent Ownership
Concurrent Estates
Tenancy in Common
Joint Tenancy with right of
survivorship

Available To:
Anyone

Devise?
Y
N (joint tenant assumes full
ownership)

Tenancy by the entirety

Community Property

Married people or
domestic partners

N
Y

Inter Vivos Transfer?

Y
Y* (BUT it severs the joint
tenancy and makes it a
tenancy in common)
N (except together)
N (except together)

*** Every cotenant has the right to possess the ENTIRE PROPERTY (every molecule of dirt).
a) Joint Tenancy with Right of Survivorship: 4 Unities Required:
i) Time Must vest at the same time
(1) This is why in Downing v. Downing (p.570), Helen had to convey the land to a straw man before she could
get it back as a joint tenancy.
(a) Why do this? Its expensive, but Joint tenancy is more complicated than tenancy in common.
Jumping through these hoops is proof to the courts that they wanted a joint tenancy, not a tenancy in
common.
ii) Title Must acquire their interests by the same instrument
iii) Interest Must have estates of the same type and duration
(1) You can create a joint tenancy in something less than a fee simple absolute. (e.g. a fee simple subject to
3rd party farming rights).
(2) Unity of possession may exist even though by express agreement between the joint tenants one of them
retains the exclusive right to the possession of, and/or income from, the jointly owned property.
iv) Must have undivided interests in the whole
b) Does a unilateral mortgage by one joint tenant sever the joint tenancy (varies by jurisdiction)?
i) Title Theory: Some jurisdictions interpret a loan as borrower giving title to the bank in return for money. If
borrower defaults, bank gets ENTIRE property. Severs joint tenancy
ii) Lien Theory: Borrower gives bank the promise to pay, with the property as collateral. Because this doesnt
involve a change in title of blackacre, there is no effect on the unity of title/interest. Does NOT sever joint
tenancy
c) What actions will sever joint tenancy (e.g. what if a tenant leases out the property)?
i) Unity Standard Strict interpretation
ii) Intent Standard Majority of jurisdictions look at whether or not the parties intended to sever the joint tenancy.
d) Joint Tenancy Multiple Joint Tenants
A (A intervivos to X) X (SEVERS: X is tenant in common with B and C)
B
C

B (joint tenant with C; T.I.C. with X)

C (joint tenant with B; T.I.C. with X)

X = 1/3 (T.I.C.)

B dies
C = 2/3 (T.I.C.)

e) Tenancy by the entirety/Community Property

i) Parties cannot individually transfer their interest in the property.
(1) This means that creditors cant get to the property UNLESS both A and B owe them money.
(a) Financial Creditors Makes sense; they can check ahead of time
(b) Tort Creditors More difficult proposition; they cant foresee this issue

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f)

Policy Considerations:
i) Difficult form of ownership (A lot of potential for problems), but its very common. B/c of difficulty, ct. may
choose to partition the property and stop the concurrent ownership.
ii) Policy For: It gives us more opportunity to buy/sell property.
(1) More people can become homeowners.
(2) Sellers have a larger market to sell to.

g) Majority Rules for cotenancy:

i) Rent 3rd party: Each cotenant is due their share of rent collected from 3rd parties (minus maintenance and
other appropriate expenses).
ii) Rent: Occupying cotenants are NOT required to pay rent to non-occupying tenants, unless there has been an
ouster (or an agreement to pay).
(1) HOWEVER; Many courts make this exception: If occupier makes a claim for carrying costs from nonoccupier, then non-occupier can make counterclaim to deduct the fair market value of the rent of the
property occupied by the occupier.
(a) If the rent owed is greater than the expenses due, this will be zeroed out (and occupying cotenant
doesnt owe non-occ cotenant anything)
(2) Some courts say no rent is owed, period.
(a) Justification: occupying tenant owns every molecule of the property; he shouldnt have to pay rent for
property that he owns
(b) Non-occupying tenant has equal right to possess property; he cant demand rent, but he can demand
the cotenant share the property. If not, its an ouster
iii) Expenses: Occupying cotenant has to pay ongoing maintenance, either in total, or in proportion to the amount
of the property that they occupy.
(a) Policy Against: Its sometimes difficult to separate out these expenses.
(b) Policy For: It encourages development of the property (e.g. putting on a better roof or swimming pool)
iv) Improvements: Cotenants are NOT required to pay for improvements made to the property. However, on
partition, the improving cotenant is entitled to the increase in value of the property due to the improvement.
v) Ouster:
(1) Once an ouster occurs:
(a) AP begins
(b) Ousted cotenant is due rent
(c) However, ousted cotenant still owes his share of the maintenance costs (since he still has ownership
interest in the property)
(2) Sample definition: Ouster occurs when a cotenant obtains sole possession of the land that is adverse to
the other cotenants, where the cotenant repudiates or disavows the relation of the cotenancy or where the
tenant without possession is aware of actions by the tenant in possession that signify his or her intention
to hold, occupy, and enjoy the premises exclusively.
(a) Difficulties with unclear definition of ouster:
(i) It must be clear that youve ousted the cotenant.
1. Ousted cotenants perspective: If you may have been ousted, to protect against AP you need
to demand rent. However, this can make things work with a presumably unhappy cotenant
(b) Ousting cotenants perspective: What do you have to do in order to clearly oust cotenant without
crossing the line and telling him that youre going to take his daughters arms off?
(3) What Constitutes an Ouster? It typically has to be absolutely clear that youve been ousted.
(a) Telling them youd prefer they not come by NOT ouster
(b) Changing locks MAYBE ouster
(c) Telling them Youve been ousted YES ouster
(i) Problem w/ a high standard of ouster is that you encourage self-help (e.g. trying to throw the
ousting party out of the house).
(ii) Safest thing to do after ouster is to demand rent, to see if they really wanted to oust you.
(4) Note: Majority Rule is that if you exclude them from a portion of the property, this can constitute an ouster.
vi) Partition 2 Options
(1) Partition In Kind (actual physical partition of the property) is preferred.
(a) Owelty Usually when the property is physically divided, there is a payment from one cotenant to
another in order to make it financially fair.

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(b) Partition Dont just give occupying tenant the portion of the property that theyre living on. This may
be taken into account as a factor, but it is NOT dispositive.
(2) Partition by Sale NOT preferred (b/c you dont want to take blackacre away from someone!). However,
this is usually what happens)
(a) person requesting partition by sale has burden of proof to show that partition in kind is not feasible:
(i) Physical attributes of the land are such that a partition in kind is impracticable or inequitable, AND
(ii) The interests of ALL owners would better be promoted by a partition by sale
vii) Value of improvements made only by occupying cotenants How to assess?
(1) Option 1: Sell the house and split the proceeds, completely ignoring these improvements
(a) Policy: Easy, clean, simple, and inexpensive to enforce.
(b) Policy: non-occ. had right to possess but chose otherwise; he voluntarily assumed that risk.
(2) Option 2: Occupier will be given value of improvements (minus) the negative value of the harm theyve
done to the property
(a) Policy: If you have improved the property, it seems fair that you should reap the benefits (flip-side, if
youve screwed it up, non-occupier should not have to bear that loss with you)
(b) Policy: Provide incentive to improve property (and not to screw up property)
(3) Majority Rule occupying tenant bears the entire risk of downside from improvements, but all cotenants
will share in the investment upside from improvements. This only applies to change in market value from
these improvements. This incents a cautious approach
A lot of these things dont get worked out until partition. Reason: We dont want to have to deal with the day-to-day
disputes of cotenants. If they cant work it out themselves, theyll have to partition and turn their rights into sole
ownership.
h) Case: Martin v. Martin (p.557):
i) Garis and Peggy Martin (1/8) are tenants in common with Charles and Mary Martin (7/8 in life estate;
remainder to Garis and Peggy). Charles and Mary developed the 4 lot mobile home property. Garis and
Peggy live in one of the lots; they didnt pay for the improvement done by Charles and Mary.
ii) Garis and Peggy Martin seek an accounting of their claimed 1/8 portion of the net rent received by Charles
and Mary from the lots.
iii) Ct Ruling:
(1) Garis and Peggy Martin are due their share of the rent collected from 3 rd parties (minus maintenance and
other appropriate expenses)
(2) However, Garis and Peggy Martin are NOT required to pay rent to Charles and Mary, absent an ouster or
agreement to pay
(a) Occupying 1 of 4 lots does NOT constitute an ouster in this case.
i) Case: Yakavonis v. Tilton (p.559): Yakavonis and Tilton were tenants in common. They broke up. Tilton lived in
the co-owned house. 1992 Yakavonis filed for partition. Ct. originally gave both properties to Tilton. In 1995, the
ct. ruled that Yakavonis retained interest in the property. Ct. ruled that date of ouster for accounting purposes
was April 1, 1994.
i) Issues/Yakavonis claims:
(1) Date of ouster wrong it should have been the 1992 ct. ruling that he didnt own property.
Ruled for Yakavonis.
(2) In accounting, the court should offset expenses owed by non-occupier (Yakavonis) with rental value owed
by the occupying tenant (Tilton) PRIOR to Ouster:
Expenses owed by non-occ
(Minus) Fair Rental value owed by occ
= Net expenses due from the non-occ (Zeroed out if rent is greater than expenses)
Some cts. make this exception, but ct. ruled against Yakavonis
j) Case: Delfino v. Vealencis (p.563): P & D tenants in common. D had 45/144 interest, and P has an 99/144
interest. D occupies a dwelling on the property and a portion of the land from which she runs a garbage removal
business. P wants to partition property by sale. Ct. rules for partition in kind. 1) Partition in kind is physically
possible, and 2) the interests of all owners will better be promoted by a partition in kind.

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k) Case: Downing v. Downing (p.570): John Sr. died and left his farm to his widow Helen. Using a straw man, she
created a joint tenancy with her and her son John, jr.
i) Bonnie (Helens daughter) claims that H and J, Jr. actually had a Tenancy in Common. 3 arguments:
1. In the deed, it says joint tenants, without the words right of survivorship.
a. Ct. rules that joint tenants is enough to create a joint tenancy (In some jurisdictions, this could
create a tenancy in common).
2. H and J, jr. took out a mortgage on the house
a. Ct. rules that since they took out the mortgage together, this doesnt violate the joint tenancy. (In
some jurisdictions, taking out a mortgage unilaterally will sever the joint tenancy and create a tenancy
in common).
3. Helen had encumbered property with the agreement to allow Myers to grow crops, so she did not have unity
of interest with J, jr. (she had a different interest in the land).
a. Ct. rules that you can create a joint tenancy in something less than a fee simple absolute. (Straw
man actually conveyed a fee simple subject to JMs farming rights).
b. Ct: Unity of possession may exist even though by express agreement between the joint tenants one
of them retains the exclusive right to the possession of, and/or income from, the jointly owned
property.
l) Case: People v. Nogarr (p.574): 1950: Elaine and Calvert married; in 1950 they acquired property as joint
tenants; 7/1954: Elaine and Calvert separated; 10/1954: Calvert unilaterally executes a mortgage to his parents
for $6,440; 6/1955: Calvert dies; 5/1956 CA condemns property (and will therefore pay fair value to someone).
i) Elaine claims full ownership of property as surviving joint tenants. Cs parents are asking for $6,440 they
want the terms of the mortgage satisfied from the just compensation
ii) Holding: Unilateral mortgage did NOT sever the joint tenancy (this varies by jurisdiction). Therefore, Elaines
right of survivorship entitles her to the entire property.
(1) Note: While C was alive and in default, creditor could have severed the joint tenancy. In that case, the
Creditor would get $6,440 worth of ownership in the property BUT ONLY FROM CALVERTS PORTION
OF THE PROPERTY (They could NOT get to Elaines portion of the property).
m) Case: Smolen v. Smolen (p.578): 1970 Roslyn and Martin married (Community Property); 1990 Martin
diagnosed w/ disease; 2/1994 Roslyn and Martin divorced divorce decree thepropertyshall remain in
joint tenancy; 12/1994 M put in group home by Roslyn; 4/1995 M got nephews help and was declared
competent; 5/1995 M conveys his interest in property to a trust, with his nephew Jason as sole beneficiary;
10/1995 M dies.
i) Roslyns argument: The deed to the trust violated the court order, which said the property shall remain in joint
tenancy.
ii) Ct. ruled that the divorce decree created a joint tenancy. Ms conveyance to his nephew severed the joint
tenancy.
(1) Note: In a divorce, the property usually goes to a tenancy in common. In this case, the intent is different
so the result is different.
10) The Recording System
a) Typically must search grantor-grantee index (by name, by date); may also have tract index (by property lot), or a
combination of the two.
b) Also should check probate records, tax records, etc. (whatever is required in your jurisdiction)
c) General Policy: Purpose of Recording acts was primarily to reign in double-dealers. As long as 1st grantee
records, it will work. If they dont record, then they havent done their part to prevent double-dealing; therefore,
subsequent good faith purchasers get blackacre.
d) Types of Statutes:
A subsequent purchaser for value (NOT including donees!) is protected if:
i) Notice jurisdiction
(1) No notice (actual or recorded) at time of purchase
(a) Last bona fide purchaser is protected (but if he doesnt record, the next purchaser will get blackacre).
(b) Policy: A (who didnt record) could have prevented harm to B by recording. Therefore, A seems more
at fault than B. B did everything he could when he bought the property.
ii) Race-Notice jurisdiction

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(1) No notice (actual or recorded)

(2) He Recorded first
iii) Race jurisdiction
(1) He Recorded first
(a) Policy: Seems unfair to give it to B even if he had actual notice of the deed to A. This basically says
that its completely As fault for not recording, and the court wants to keep it simple, so A should bear
the loss.
iv) Period-of-grace Gives you extra time to record.
e) Types of Notice
i) Actual Notice You actually know of the conveyance
ii) Record Notice If you look at the index you should see the prior conveyance within the chain of title
iii) Inquiry Notice You need to inspect the property and make the inquiries that a reasonable person would
make (e.g. about power lines running across your property)
(1) Note: Good faith/Notice only look at when the actual transaction takes place; not any time later.
f) With multiple parties there are 2+ ways to look at title:
p.750 Problem 6:
OA, no record
OB, Notice of O-A
B records
BC, no notice of O-A
A records
C records
***Key question: Who could have prevented this whole mess? ATherefore youll favor C (who is a good guy,
since he didnt have notice) over A (whos a bad guy).
i)

Directly compare to parties (C-A): Question is who was the last good faith purchaser?
(1) Notice jurisdictions Majority follow this approach
(a) Policy: If you followed pedigree, A would get blackacre, even though C did nothing wrong, and A could
have prevented the problem by recordingThis wouldnt seem fair.
(2) C had no notice of OA; Therefore, C gets blackacre
ii) Pedigree:
(1) Race jurisdictions Majority follow this approach.
(a) Policy: If they didnt follow this approach, A would get 2 chances to record, which doesnt seem fair.
(2) B-A; Bs claim is superior (B subsequent purchaser who recorded first)
(3) Therefore B-C was valid and since C has recorded, C gets blackacre. (A has no claim as a prior
purchaser in this case)
iii) Race-Notice would also favor C (seems most fair)
(1) Directly compare C-A: Mechanical position doesnt seem to support this BUT you could argue that A didnt
really record first. B recorded before A, so that knocks out the legitimacy of As recordation
Sheltering Example (Notice Jurisdiction):
OA, no record
OB, No Notice of O-A
B records
BC, Notice of O-A
i)

ii)

Directly compare to parties (C-A): Comparing A to C, you would be tempted to give blackacre to A (since C
had notice), BUT doing this would hurt B (who is a good guy he had no notice and recorded). So you give
blackacre to C in order not to hurt B. Bs good faith purchase is sheltering C. In effect, you would choose
the pedigree approach in this case:
Pedigree: B has superior claim vs. A. Therefore, C is buying from a legitimate owner of the property.
Property goes to C.

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b) What constitutes a reasonable title search?

i) You only have to search within the legally recognized chain of title. You do NOT have to search before
grantor was given the property, and you dont have to search after Grantors first conveyance of property to
someone else.
ii) Wild document = document outside the legally recognized chain of title.
(1) Policy: We cant burden the title search by requiring people to search outside the chain of title. It would
be too expensive, and the people that are potentially harmed by this could have prevented it by recording
correctly/promptly.
c) Additional Information:
i) Good faith/bona fide purchaser = paid valuable consideration AND did not have notice
ii) 1st in time purchaser does not need to use the recording acts; 2nd in time purchaser does. In some
circumstances, however, 1st purchaser can prevent the 2nd in time purchaser from using the Recording Acts
protection by recording first.
iii) Note: Conveyances are indexed according to the date that they were recorded, NOT the date that the
transaction actually took place. Reordering them by date of conveyance would solve a lot of these problems.
Key Conclusion (Bryant): Look at protecting the equities of the people involved. What is fair? Courts usually do
NOT like to give the property to A (who didnt record and started the whole mess to begin with).
d) Case: Patience v. Snyder (Handout): Derrick and Patience were joint tenants in a property. Derrick - Quitclaim
deed to his girlfriend Snyders mother: Georgie Wilson 3/21/1995. Derrick died 11:55am on 3/29/1995. The
quitclaim deed was stamped at 12:54 pm on 3/29/1995. Even though they had given the deed to a clerk before
11:55am, ct. ruled that this did not constitute a deposit. Therefore, since deed had to be stamped before Derricks
death, it was invalid.
i) Purpose of this recording requirement: To avoid a secret severance, where you create a deed conveying
your interest, and then you rip it up if your partner dies first; but if you die first, it gives your portion of the
property to someone else.
e) Case: Ryczkowski v. Chelsea Title & Guaranty Co. (p.751): Cleary gave easement to Sierra Pacific Power 3 years
before he got the title to the property. Subsequent owners were NOT required to find this easement in their title
search, because it was outside the chain of title (before owner got title). To prevent this, Sierra Pacific should
have re-recorded after Cleary actually got title. However, the companys power lines may have given them inquiry
notice of the easement, in which case theyre screwed.
f) Case: Morse v. Curtis (p.752): Hall mortgaged land to Demandant. Then Hall mortgaged land to Clark. Then
Clark recorded. Then Demandant recorded (late!). Then Clark assigned mortgage to tenant, who had no notice
of Demandant. Ct. held that Tenant got title. You dont have to search outside chain of title (after then owners
first conveyance of the land).
g) Case: Buffalo Academy of the Sacred Heart v. Boehm Bros. (p.754): P agreed to give D marketable title to certain
property in pay off a debt. D claims that the land is not marketable because 1) Uniform plan restricted property to
Residences only, and 2) Deed to Kendall Refining Company prohibits gas stations except for on their lot.
i) Ct. ruled that
(1) No uniform plan. Some lots were restricted; some were not. Some deeds had savings clauses
specifically providing that grantee had no rights in other lots, and
(2) No restriction by Kendall deed. The agreement between the party of the first part (grantor) and the gas
station owner only applied personally to the grantor. It does NOT run with the land. Covenants are
construed strictly against those seeking to enforce them (b/c they are burdens on the land).
(a) Also, this covenant does not appear in the direct chain of title, so there was no constructive notice to
purchasers of other lots.
(i) Note: Other jurisdictions might require you to find this restriction outside the direct chain of title.
ii) Additional Information How should Uniform Plan be created?
(1) Developer can file a master plan to indicate that they want a master plan (Best option - CA requires this).
(2) Could give enforcement rights to subsequent purchasers (in every single deed), which implies a master
plan. Each purchaser has right to enforce policy on each other AND obligation to follow the policy.
(Second best option puts notice directly in the chain of title).

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(3) Grantor to restrict retained land: In As deed: A gets land for residential purposes, and I (grantor) am
restricting all of my retained land for residential purposes only.
(a) Problem: This would not necessarily appear in other subsequent purchasers chain of title
(4) Note: For a property to be considered marketable, a reasonable person must think that the property is
reasonably free of encumbrances and that he would be able to buy/sell the land.
h) Case: Sanborn v. McLean (p.759): 53 of 91 lots in a subdivision were restricted. Everyone was obeying the
restrictions. Mr. and Mrs. McLean started to erect a gasoline station on their lot. Their lots chain of title did NOT
have any restrictions. Ct. held that the restriction (no gas stations) was valid for all lots. Given the uniform nature
of the subdivision, the purchaser was effectively put on Inquiry Notice as to this restriction.
i) Manufacturers & Traders Trust Co. v. First National Bank (p.763): Drewry had an outstanding loan to debtor that
was due. In exchange for 60 days to pay off loan, debtor secured the loan with his property (2 nd mortgage).
Because debtor got something of value (an extension of the loan for a finite period of time), this transaction
qualified Drewry as a purchaser for value, and he was therefore protected by the recording acts.
11) Nuisance
a) The law of nuisance affords no rigid rule to be applied in all instances. It is elastic. It undertakes to require only
that which is fair and reasonable under all the circumstances. (p.861)
b) What constitutes a Nuisance?
i) Subjective: Property owners subjective sense of invasion
ii) Objective: Would a reasonable person be bothered?
(1) Factors associated w/ interfering entitys use (how useful is their activity?)
(a) Suitability of the particular use or enjoyment invaded to the locality
(2) Factors associated w/ sensitive use entity
(3) Factors associated w/ societys interests
c) Remedies:
i) Allow the nuisanceClark Case
ii) Enjoin the nuisanceMitchell Case
iii) Allow the nuisance, if the nuisance causer pays the complainer (Forced transaction)Boomer Case
iv) Enjoin the nuisance, if the complainer pays the nuisance causerSpur Case
(1) Judges may think that if you grant an injunction, the parties involved are likely to bargain. The ct. has
essentially given P bargaining power.
(a) *** Note from casebook: Study of 20 nuisance cases: after injunction, no bargaining took place. At
this point, cts. are less inclined to grant the injunction, b/c the assumption that people will bargain
doesnt seem to be valid.
d) Public Nuisance 2 Requirements:
i) You are legitimately speaking for the general publicStatutes are very often used to support this. Statutes
arent required, but they are very useful for this (Argument is that if someone is violating a statute, then they
are clearly going against the public will).
ii) You are harmed in a special way (more than the general public), so you have the right to speak on behalf of
the public
e) Cases:
i) Case: Clark v. Wambold (p.841): D maintains pig pens on his farm. P has a summer residence next door, and
brought a nuisance claim for the odor from the pigs. They are in farm country. The pens are filthy, but they
were kept as clean was they reasonably could. The pig pens had been there when P bought his property. P
knew about them when he bought the property. BUT D increased his pig production from 1911 to 1912.
There are other areas on Ds property where he could house the pigs. For D; NOT a nuisance.
ii) Case: Mitchell v. Hines (p.842): D runs a piggery. Ps live in residences nearby. Pigs were fed garbage, and
sometimes dead animals were mixed with the garbage. Increase in pig production from 200 to 400; this is
when the odor became extremely bad. Most Ps bought their properties before the increase, so the coming
to the nuisance argument is weakened (at least for the Ps who bought homes before the increase).
Piggery IS a nuisance. Injunction granted.
iii) Case: Boomer v. Atlantic Cement Co. (p.851): Ps lived near a cement plant, which was releasing harmful dirt
and smoke in the air. Plant IS Nuisance; NO injunction (Overruled doctrine (Whalen v. Union Bag & Paper
Co.) that even with slight damages to P, an injunction was warranted); Permanent $$ damages awarded.

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Damage to Ps property is small compared to cost of closing plantlarge disparity of economic

consequences ($185k v. $45MM). Social utility Cement is important; 300 employees (so even Ps benefit to
some degree as members of the public)
(1) Policy: Why use permanent damages?
(a) Easy to show in this case: Primary cost = Loss in property value; this can be calculated and handled
in a one-time payout.
(b) If the company isnt using state-of-the-art technology, you might go for an injunction. If the company
is using state-of-the-art technology, you might want to issue permanent damages. Theoretically, there
could be an incentive for the company to continue to use good technology, b/c if not they could be
subject to an injunction or more damages in the future.
iv) Case: Spur Industries, Inc. v. Del E. Webb Development Co. (p.858): D Spur Industries operates a cattle
feedlot. P Del Webb Development Company developed land near Ds farm. Residents in Del Webbs
residences complained of flies and odor from the farm. Del Webb brought a public nuisance claim.
Injunction; Complainer (Del Webb) must pay Spur for costs of injunction. Public Nuisance: Statute = Any
conditionin populous areas which constitutes a breeding place for flies BUT Dell Webb came to the
nuisance, so Dell Webb has to pay relocation costs
v) Case: Prah v. Maretti (p.867): P has solar panels on his roof. D bought the lot next door and began building
his property. P told D that the home would interfere w/ his solar panels and asked him to change the design
and move it over. Ps building and Ds proposed building were both within city regulations. Building
blocking solar cells CAN constitute a nuisance. Definition of nuisance is very broad and evolves over time.
Cts have already given some protection to sunlight (e.g. spite fences). Solar power has high social utility.
vi) Case: Mark v. State Dept. of Fish and Wildlife (p.879): P purchased a property in 1990 after visiting the
property and talking to the seller and the Oregon dept. of fish & wildlife about it. The property was next to a
nude beach. In 1993 the Wildlife dept. in charge of the beach adopted a plan that designated the beach next
to Ps property as a clothing optional beach, created a ~400 ft. buffer zone between property and beach,
called for trees to block view from Ps property and vandal-proof signs to be installed. Trees wouldnt grow
and signs were vandalized. Private Nuisance; Injunction to successfully implement the original plan.
12) Servitudes: Easements
a) Evolution of Servitudes:
i)
Traditional
(1) Interests in Land
(a) Easements/Profits
(i) Negative EasementsCan be created by implication
(b) Real Covenants (Horizontal Privity)
(2) NOT Interest in Land
(a) Equitable Servitude (No Horizontal Privity)
ii)
Rest. 3rd
(1) Servitudes (1 umbrella category that includes the following):
(a) Easements/Profits
(b) Covenants
(i) Negative Easements
(ii) Real Covenants
(iii) Equitable Servitudes
1. Remedies: $$ damages OR equitable relief (depending on whats fair)
b) Types of Servitudes
i)
Profits Right to take resources off of someone elses land (gravel, timber, etc.)
(1) Profits = Real property rights (not just a license)Treated like a type of easement (burden is associated
w/land, even though the benefits are not associated with land)
ii)
Easement Right to use someone elses land
iii)
Equitable Servitudes
iv)
Covenant Governs what you can/cannot do on your own land (Does not include right to go on someone
elses land)
v)
Negative Easement (treated as a covenant) Limits what you can do on your own land

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vi)

Irrevocable licenseRestatement/Majority: Functionally the same as an easement.

(1) Minority: Irrevocable license is a kind of license (unlike an easement, they can be taken away if conditions
change and they are no longer necessary).
(2) Note: A license (which is revocable) is NOT a servitude
c) Easement Definitions:
i)
Appurtenant (to both lots) = Easement runs with the land
ii)
In Gross = burden doesnt run with the land
iii)
Servient tenement/ estate = Property that owns the land that the easement is on
iv)
Dominant tenement/estate = Property that gets the benefit of the easement on the servient estate
(1) Policy: Because servitudes are encumbrances to land, you must be absolutely clear that you mean to
create a servitude (not just a personal contract); cts will interpret these contracts in favor of NOT creating
an easement
d) Creation of an easement:
i)
Written Deed: This should ALWAYS be the starting point. Must be clear; could be interpreted as a fee
simple absolute or as a license. Should outline purpose, location, duration, terms of maintenance, etc.
(1) 3rd Party: You can NOT create an easement in a 3rd party in the deed (Thomson v. Wade)
(2) Statute of Frauds Interests in lands must be in writing, and be purchased for more than a nominal sum.
Some jurisdictions will require a written deed except in extraordinary circumstances (e.g. there was
fraud). Reasoning: Reliance without a written document is NEVER reasonable.
(a) Specific exceptions to this rule are outlined below.
ii)
Creation by Estoppel: Equitable defense to keep someone from enforcing their black letter rights.
Consequence = you are stopped from doing something (or stopped from denying someone something).
(1) Someone made a representation that theyre not going to stand on their black letter rights (e.g. go ahead
and use the right of way, I dont need something in writing)
(2) It was reasonable to rely on that statement
(3) It was also reasonable to change their behavior based on what was promised
(4) They did change their behavior based on the statement
Forcing them back to the black letter position would be an injustice. Therefore, a harm would be done.
iii)
Implied by Prior Use
(1) Creation:
(a) Common grantor of land
(b) Owner used one part of the property for the benefit of the other
(c) Use was apparent to subsequent purchaser
(d) Use was reasonably necessary
(i) Minority:
1. Implied reservation (benefiting grantor)Absolute necessity required
2. Implied grant (benefiting purchaser)Reasonable necessity required
(ii) Majority/Current View (Van Sandt)No distinction between implied reservation & grant
(reasonable necessity)
(2) Unlimited duration
(3) Policy: Typically this is granted based on the original intent of the parties involved (who may have thought
it so obvious that they didnt put it in the deed). Necessity not the key.
iv)
Implied by Necessity (Extremely rare)
(1) Only used for landlocked land.
(2) Creation:
(a) Common grantor
(b) Grantor either retained easement or subdivided and simultaneously sold plots of land.
(i) Note: Last lot of land sold that caused the property to be landlocked is the lot burdened with the
easement.
(3) Lasts only as long as necessity lasts.
(4) Policy: Not really created to let landlocked owner out; created to fix mistake by original grantor (which is
why the original intent of the parties is important).
(a) Private Right of Condemnation of Way Some jurisdictions will allow ct. to force a transaction at a
fair price to provide a landlocked landowner access to his land. Policy: It helps society NOT to have
useless, landlocked land.

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v)

Easement by Prescription
(1) Same requirements as Adverse Possession (including open & notorious)
(a) Policy: Oral agreement (imperfect servitude) does NOT negate the hostile use requirement. This
allows courts to use easement by prescription to cure a defect in the original creation of the
easement.
(2) Unlimited duration
vi)
Dedicationgrant to the public
vii)
Condemnationfor public utilities, railroads, canals, etc.
viii)
Other Forced Sales
(1) (e.g. ct. refuses to enjoin continuing nuisances or encroachments)
e) Scope of Easements and Profits
i)
Moving Easement
(1) Majority View Can NOT move easement
(a) Creates market uncertainty
(b) Infringes on dominant estates property rights
(c) Proliferate litigation
(d) Economic windfall to servient owner
(2) Rest./Minority View: (General Rule that you cant move an easement, but) Owner of the servient estate
is entitled to make reasonable changes in the location, at his expense, only if the changes do not:
(a) Significantly lessen the utility of the easement
(b) Increase the burdens on the owner of the easement in its use and enjoyment
(c) Frustrate the purpose for which the easement was created
ii)
Scope of Easements:
(a) Obligation to maintain easement so its not a nuisance
(b) Right to reasonably use and develop the easement, as technology advances.
(i) Is what is being done close enough to the original easement grant and not too burdensome?
1. P.950 Owner sold the Power company an easement. Power co. sold rights to a cable
company to lay cable in their easement space. Cable company won against original
property owner!
2. Easement by Prescription scope is generally more narrowly confined to the original use.
i.e. dominant estate holder is more likely to be found to be misusing the easement.
a. Policy: They got use because you allowed/ignored a specific use (walking over land); not
fair for them to change this use (start driving) b/c you would have noticed this initially, and
they never would have gotten the easement in the first place.
i. Express easement, granting right-of-way, easement by prior use/necessity: Driving
would be fine (as a technological advancement)
3. Easement by NecessityNOT limited to SFR use (Morrell v. Rice p.911)
4. Right-of-wayCouldnt pave; cant disturb the soil upon the fee; b/c paving could lead to
increase in traffic problems w/scope of easement. I think that the paving isnt really done as
a result of technological advances (cars existed when they first granted the easement).
Therefore, this is seen as an unreasonable increase in the use of the easement (and not
simply taking advantage of new technology)
iii)
Use of Easement for Non-Dominant Land: General Rule An easement appurtenant to one parcel of land
may NOT be extended by the owner of the dominant estate to other parcels owned by him.
(1) But dont necessarily have to enjoin use (Brown v. Voss)
iv)
Succession, Exclusivity, Assignability, and Divisibility
(1) Exclusivity: Background rule that easement is not exclusive, unless specified as exclusive (City of
Pasadena v. California-Michigan Land & Water Co. 944).
(a) Policy: Encumbrances make land less marketable. Limiting the burden should alleviate this some.
(2) Interest in land (e.g. NOT in gross) Implies inheritability and assignability
(3) Assignability/Divisibility of Profit/Easement
(a) Default = some assignability and some divisibility
(i) Limitation: Writing; Reasonable useBased on the reading of the deed (i.e. parties INTENT)
[Central Oregon p.950]
v)
Historical Evolution of Easements in gross (Easements in which the benefit is in gross; not attached to land)

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vi)

f)

(1) Problem: Tough to find these people they could be anywhere in the world!
(a) 1) Historical rule: the burden will not run if the easements is in gross.
(i) Problem: Power companies were granted easements in grosscould these run?
1. 2a) Commercial easement in gross can run;
2. 2b) Noncommercial personal easement benefit will not run (=it is NOT
inheritable/assignable)
a. Problem: Conservation easements (non-Commercial), but we want these to run.
i. 3) Rest. 3rdLook at the intent of the parties, and compare the costs and benefits
of allowing the burden to run.
Termination Doctrines:
(1) Negotiated Agreement/buyout
(2) Release of the easement to the servient tenement owner
(3) Abandonment Must be unequivocal (Central Oregon: Not hunting for years after land fenced off is not
enough)
(4) Prescription Must clearly establish hostile possession (Central Oregon: fencing off hunting land not
enough)
(5) Condemnation Govt. exercises eminent domain, and pays just compensation
(a) How do you value an easement? Difficult
(6) Merger of the burdened and benefited properties into one owner.
(a) Note: If you subdivide the properties again, the easement doesnt necessarily reappear (has to come
about by one of the other doctrines)
(7) Changed Conditions (or frustration of purpose/doctrine):
(a) Successful argument: Conditions have changed such that no one is claiming a continuing benefit
from the easement:
(i) Easement owner has disappeared, you cant locate him, and you want to sell the property
(without the burden)

Cases:
i)
Deed: Fee Simple or Easement? Case: Brown v. The Penn Central Corporation (p.894): RR had deed to
some land. RR abandoned the land and rented out part of it. 3rd party trying to quiet title in themselves.
Deed to RR: Right of Wayfor Depot and Rail Road purposes. Deed granted easement, which was
abandoned and lost. 1) Form was prepared by the Railroad, so burden on Railroad; 2) Rule: Right of Way
language interpreted as an easement; 3) Use limitation in deed; 4) No forfeiture/reversionary language; 5)
Form was a Right of Way (limited use easement) form, and the ambiguous language is the only handwritten
portion of the form
ii)
Deed: Easement or License? Case: Stratis v. Doyle (p.897): Doyle granted his neighbor (Ps predecessor)
Abbatiello a right-of-way across his land to build a driveway provided that Abbatiello agrees that he will
construct and maintain such driveway upon the lands described above in a goodmanner and will be
completed by April 1, 1980. P sued Doyle and Dennebaum for interfering with the easement. Ruled that
1) Deed created easement and not a license (word grant is used; specific words of inheritance are used;
was created with a warranty deed (document used to grant an interest in land, not a license); 2) The condition
in the deed is NOT a condition subsequent (NO forfeiture language); it is only a covenant and can only be
protected with $$ damages, NOT forfeiture
iii)
Deed: Easement or License? Case: Cooper v. Boise Church of Christ (p.899): Adams attempted to convey
an easement to the church for a neon sign, but Adams didnt really own the land yet. He only held an
equitable interest (deed still in escrow; escrow didnt close for 10 years). Deed created a revocable license.
1) Didnt have right to grant easement (although couldnt grant a license either); Only paid $1 = Not
sufficient for a permanent easement (there was no mention of duration in the deed); $1 could be sufficient for
a license. 2) No easement by prescription use of license w/o objection is not hostile; No equitable estoppel
- Paid $958 for 11 years of advertising, so in essence they got their moneys worth. No unfairness in not
granting them a permanent easement.
(1) Statute of Frauds: Interest in property must be in writing, and there must be some real value
exchanged (e.g. $500).
(2) Equitable Fee Simple = Youve done everything necessary to get the fee simple absolute, but its still in
escrow. While the conveyance is still in process, you have an equitable fee simple.

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iv)

v)

vi)

vii)

viii)

ix)

x)

Creation by Estoppel Case: Case: Mund v. English (p.903): P is the son of D. They have neighboring
properties. They all worked together to build a well on Ps land. Equipment and pipes were installed so that
both P and D could use the well. Their attorney wasnt sure what, if anything, they had agreed to. Ct. held
that D granted an irrevocable license, not a (revocable) license. 1) Facts indicate there was an agreement
(they shared installation/maintenance costs); 2) D made valuable improvements based on the agreement
(built a house with no other water source); Therefore, P can NOT revoke the license. Irrevocable license =
Easement (Rest. definition).
Implied on the Basis of Prior Use Case: Van Sandt v. Royster (p.906): Grantor used to own 3 lots. She built
a private sewer line to the public sewer. Then she subdivided the lot and sold the other lots. Her lot was
furthest from the sewer, so her sewer line crossed both properties (one owned by P). There was nothing in
writing about the sewer. Ct. held that easement had been created (implied by prior use). Some cts
differentiate between 1) implied reservation (grantor gets benefitstrict necessity required) and implied
grants (purchaser gets benefitOnly reasonable necessity required). This court rejects distinction and treats
them the same: 1) Grantor had a Quasi easement (quasi because you cant have an easement in your own
property), which became an easement when she sold lots. Necessity a factor, but NOT strictly required.
Easement implied by Necessity Case: Morrell v. Rice (p.911): Morrells owned a landlocked piece of property.
They were replacing their SFR with a hotel. Their property and the Rice property were originally in common
ownership. 1) Easement by necessity created; 2) Scope = NOT restricted to SFR use. Grantor can create
easement by necessity by 1) Retaining the easement, or 2) Simultaneously conveying both plots of land (and
one is landlocked by the other). In this case, the deeds were more or less simultaneous. Access by boat isnt
feasible: 1) Unclear if they could get permits; 2) Cost $300,000. As long as it doesnt cause an undue
burden on the Rices land, the easement can be used for more than just a SFR.
Easement by Prescription Case: Paxson v. Glovits (p.917): In 1979 the Murphys and Baker orally agreed to
an easement across their land. A subsequent purchaser Glovits started to build a wall over the easement.
Subsequent purchaser of other lot Paxson brought action so stop him.Easement was created by
prescription. General Rule: Oral agreement (imperfect servitude) does NOT negate the hostile use
requirement. Policy: This allows courts to use easement by prescription to cure a defect in the original
creation of the easement.
Easement by Forced Sale (Encroachment) Case: Goulding v. Cook (p.921): Cook had a cesspool (which
was partly under a neighbors land). Another neighbor installed a swimming pool, and their cesspool started
leaking. The city demanded that they have a septic system and the only suitable site belonged to a disputed
piece of property (that Cook and Goulding owned). Lower ct. rules that land belongs to Goulding, but Cook
could install the septic system for a price to be determined later. Supreme ct. reverses and does NOT grant
easement.
Easement for 3rd party Case: Estate of Thomson v. Wade (p.925): Noble owned 2 plots of land. He conveys
the riverfront plot to Ps predecessor in 1945 (no mention of easement). He then conveyed the other plot to
Ds predecessor. In this deed, he excepted or reserved an easement over Ds lot.No Easement created.
You cannot create an easement for a 3rd party in a deed with someone else. You have to take 2 steps: 1)
Create an easement (in writing or establish circumstances where its implied by prior use); 2) Convey land
with the easement in your first transaction (and refer to it in the 2nd conveyance of land). Policy: Recording
acts. The easement (benefiting or burdening a property) needs to be in the chain of title.
Moving Easement Case: Davis v. Bruk (p.929): D Bruk and P Davis have neighboring parcels. P has a rightof-way on Ds property. D wants to move the easement (safety hazard b/c it runs close to their house). P
wants to pave the easement (argue that it also helps D, b/c it will cut down on dust).
(1) Easement can NOT be moved: General rule = can NOT move easement. Policy: a) Introduce uncertainty
into land ownership; b) Increase litigation; c) Dominant estate deprived of security of his property rights; d)
Economic windfall on servient owner
(2) Easement can NOT be paved: You cant disturb the soil upon the fee of the owner of the servient estate.
Paving could cause an increase in trafficCould lead to problems with the scope of the easement
(more potential litigation).
(a) Policy:
(i) Why hard line stance? Ct.s will often stand on the black letter rule when there seems to be a
potential deal in the making that neither party has yet agreed to (like in this case). That way,
theres less of a hold out problem.

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(ii) Not allowing easements to expand will likely cause 1) easements to disappear, and/or 2) more
bargaining
xi)
Moving Easement Case: Lewis v. Young (p.932): P has an express easement for a driveway (in their deed)
on D Youngs land. D allegedly agreed with Ps deceased aunt (prior owner) that they could move the
easement while renovating their property. D started construction in spring of 1993 and relocated the driveway
in November. In December, P sent a letter saying that he would agree to the relocation of the driveway of the
driveway in return for certain renovations. D agreed, but claimed that the renovations were delayed for
various reasons (weather, husband died, law suit). Easement CAN be moved.
(1) Original intention was for a right of way (not a physical grant of land unlike the last ct, which viewed it as
more of a standard property right)
(2) Okay to reasonably move the easement as long as the servient owner wants to move it (If dominant
estate wants to move the easement Would add additional burden to servient estates land (who is
already burdened by the easement!)
(a) Increases (not decrease) value of land
(b) Encourages (not discourages) owner to make improvements
(c) Limited right so wont incite litigation
xii)
Use of easement for Non-Dominant Land Case: Brown v. Voss (p.939): Property B has an easement on As
land. P bought property B and property C and began to build a house on both properties. D didnt want him
to use the easement for lot C, and they started blocking it with logs, etc. P was misusing the easement,
BUT ct. only awarded $1 in damages and did NOT enjoin the use. Note: The clearly written deed in this case
essentially required a ruling against P.
(1) Washington statute allows ct. to condemn a right of wayThis would definitely require a payment from B
to A (Dissent says to do this).
(2) Note: Ct. has said that Ps use is a trespass.
(a) D could get damages in the future
(b) P can quiet title through prescription in the future
Succession, Exclusivity, Assignability, and Divisibility
xiii)
Exclusivity Case: City of Pasadena v. California-Michigan Land & Water Co. (p.944): Landowner granted 5
ft. wide easement for the purpose of installing and maintaining water mains and connections theretofive
feet in width to City of Pasadena P. Landowner then granted another easement to a competitor of
Pasadena (D). Easement is NOT exclusive; so D has the right to use their grant. Background rule that
easement is not exclusive, unless specified as exclusive. Policy: Encumbrances make land less marketable.
Limiting the burden should alleviate this some (I have this in my notes, but Im not sure what this means!). No
language in the deed about exclusivity, so grantor retains rights in the easement (specifying the 5 ft. width
does NOT establish an exclusive easement for P); There were prior easements in the same landleads to a
non-exclusive interpretation of easement;
(1) Precedents Surface right of way easements of a defined width give dominant estate the absolute right
to occupy the entire widthPrecedents applying to surface rights of way are not the same as this
easement (pipes can be at different depths and are in a relatively fixed and permanent location; did
grantor really grant the land all the way to the center of the earth?)
(2) However, if Ds pipes actually interfere with Ps use of the easement, then Ps rights are superior; So in
the future, anyone else laying pipes in the easement are vulnerable.
(3) Granting an injunction would give P a No-competition guarantee
(a) Ct. found no intent by the parties to prevent competition. The fact that they didnt mention in
agreement indicated that they did NOT want to prevent it.
(b) Ct. could have interpreted the silence the other way (Silence=assumed that they couldnt grant
additional easements).
xiv)
Exclusivity, Assignability Case: Fairbrother v. Adams (p.947): Fairbrothers conveyed a part of their land to
Adams. The deed also conveyed hunting rights to the remainder of their land: the hunting and fishing
rights on the other lands of the Fairbrother farm
(1) Easement is appurtenant to the land (not personal/in gross)
(2) Exclusive?Yes. Language = THE hunting and fishing rights
(a) Also excludes the grantor, b/c the language will be construed against the grantor whose attorney
drew up the deed.
(3) Assignable/Inheritable?Yes

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xv)

(a) Profit is an interest in landimplies inheritance and assignability

(b) Assigns & heirs language in deedinheritability/assignability language
(i) Note: The rights can only be assigned as long as the person owns the land (b/c the easement is
appurtenant to the land).
Central Oregon Fabricators, inc. v. Hudspeth (p.950): D Hudspeth and his family were given the right to hunt
on Ps land by deed. P then fenced the land off and started charging for hunting tours. Years later, P told D
not to hunt there. P then brought action to quiet title.
(1) Termination Doctrines:
(a) Abandonment No abandonment. Mere nonuse is not enough. Must be unequivocal: P must
show both nonuse and either a verbal expression of an intent to abandon or conduct inconsistent
with an intention to make further useconduct which is equivocal in character does not suffice.
(b) Adverse Possession (used as umbrella term for easement by prescription) No Adverse Possession.
P fenced off property and told D that they didnt want them hunting there (One of Ds was denied
access to the property, but this isnt enough to constitute hostile possession). Ct. ruled that creating a
hunting park was actually in the best interest of Ps hunting easement.
(2) Assignability/Divisibility of Profit, based on the reading of the deed (i.e. parties INTENT)
(a) Language of the Deed:
(i) heirs & assigns Can be assigned; and no language indicating that it cant be assigned to more
than 1 person
1. BUT Obviously cant burden the easement through use by too many people
(ii) personal guests Only natural persons (not entities) may be assignees (cant entities have
guests)
(iii) personal guests Nonpaying guests (not commercial guests)jbjhb

13) Servitudes: Real Covenants & Equitable Servitudes

Historical View
Real Covenants
Required

Equitable Servitude
Required

Rest. 3rd
Real Covenants AND
Equitable Servitudes
Required

NOT Required

Not Required

Existence of
General Plan
Writing

Required
Note: Enforcement rights can
be created in a 3rd party.
NOT Required (i.e. Dont need
subdivisions)
Required

NOT Required

Not Required

Benefits in Gross

Probably OK

Required; BUT Implied and

Serv. by Estoppel
Not allowed, but exceptions
(Policy disfavoring =
difficulty of finding benefited
person. 1) If easy to find
individual, OK; 2) If the
benefit to the area is great,
we would want to see the
benefit run.)

Required; BUT Implied and

Serv. by Estoppel
OK

Requirement
Intent (that burden
and benefit run with
land)
Horizontal Privity

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Historical View
Requirement
Affirmative
Burdens

Touch or Concern
Land

Vertical Privity

Notice

Real Covenants
OK (Originally seen as NOT
touching land; disfavored).
Policy against: More
burdensome to make someone
do something than to make
someone do something.
However, agreement NOT to let
trees grow is actually an
AFFIRMATIVE burden to trim
the trees.
Required

1) Required: Same estate for

benefited and burdened side.
2) THEN moved to SAME
estate required on BURDENED
side only (Not fair to relieve
other person of burden just b/c I
rented out my land).
Required Recording Acts
(Note: Runyon Case/minority
Actual Notice not sufficient;
must be recorded)

Equitable Servitude
OK, but a few exceptions

Required

Rest. 3rd
Real Covenants AND
Equitable Servitudes
OK

Not required; Covenant OK

unless illegal or against public
policy.
Servitude is invalid if:
Illegal
Unconstitutional
Violates public policy:
1. arbitrary, spiteful, or
capricious
2. unreasonably burdens a
fundamental
constitutional right
3. unreasonable restraint
on alienation
4. unreasonable restraint
on trade or competition
5. unconscionable

Required (can be any

estate)

Unlike Touch & Concern, you do

NOT cut off the covenant from
the very beginning; you instead
have TERMINATION
DOCTRINES cut off the
covenant only if/when they
become a problem.
Required for Affirmative Burdens
only

Required Recording Acts

Required Recording Acts

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Historical View
Requirement
Termination
Doctrine

Remedies

Policy

Real Covenants
Equitable Servitude
Historical Doctrines
1. ***Touch & Concern was used as a termination
doctrine (even though it technically wasnt)
2. Buy a release (difficult if there are many benefited
owners)
3. Expiration date built into the original grant
4. Merger Owner of burdened lot buys the benefited
lot; cant own land benefiting yourself; covenants
disappear (You have to own ALL of the
benefited/burdened lots)
5. Abandonment of the benefit Requires something
more than just not using itunequivocal statement or
representation (like abandoning easements).
6. Estoppel Holder of benefit led servient owner to
believe that the benefit didnt mean anything to them.
7. Adverse Possession You behave in opposition to the
restricted covenant for the statutory period (Note:
Unlike AP of defeasible fee condition, AP must be
Open & Notorious in this case).
8. Condemnation of the property Govt. pays the
burdened holder (who owns the land) AND the benefit
holder (who owns the benefit) IF the govt. use will
violate the restriction.
9. Changed Circumstances Old Definition: Changed
circumstances must take place within the
benefited/burdened land. Strict interpretation.
Money Damages(Historically) Injunction (NO $$ damages):
Requirements on covenants
NOT to do something
were so strict b/c $ damages
To do something (possibly
were NOT limited by the
according to a very
value of the property; you
detailed specification)
could be personally liable for
specific performance
an unlimited amount of
damages.
***NOTE: Since a Real
However, 1) plaintiffs
Covenant satisfies all of the
wanted injunctive relief (not $ requirements for an equitable
$ damages), and 2) $$
servitude, you can also get
damages were hard to prove
Equitable relief (injunction) for
and therefore not as
a Real Covenant.
worrisomeRest.3d allows
both.
Ct. is more likely to rule that a covenant is personal than
it runs with the land.
In general, covenants (and equitable servitudes) looked
upon as burdens on land, which made property less
marketable. Goal was to knock as many out as
possible.
Between Covenants and Equitable Servitudes, Equitable
Servitudes were favored b/c they didnt have the
unlimited financial risk of covenants.

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Rest. 3rd
Real Covenants AND
Equitable Servitudes
Additional Doctrines
1. Changed Circumstances
(New): Statutory
Modification of Rights
We wont enforce a
covenant if it unfairly
burdens someone: If
burdened owner can make
a compelling case; ct./
legislature may force a
transaction.
2. Statutes that require a
termination date for
covenants, e.g. 30 years.
Heavy burden to get
everyone to sign off on a
renewal.
3. Developers: More
developers are retaining
powers of modification/
termination, e.g. 75% of
homeowners can vote to
modify covenants.

Money Damages AND

Injunction/Specific performance

What is fair? What is the

intent of the parties
involved? Less focus on
mechanical rules.
Covenants seen as GOOD
things that can increase the
value of property (esp. in
planned developments)

a) Covenant Requirements:
Absolutely MUST have it in writing, and:
i)
Intent
(1) To Bind successors (for burdened side AND benefited side)
(a) Specify enforcement rights/class of people/property owners who can enforce the covenant (e.g.
Runyon was not specified, so he could not sue)
ii)
Notice
(1) Burdened Side: For burden to flow to a successor, they have to know about it
(a) All Recording Act issues from before (since this should have been put in writing)
(2) Benefited Side: Obviously must know about it in order to sue
iii)
Touch & Concern Land
(1) Must be something that affects the land itself and/or the market value of the land (Covenant to sing happy
birthday every year does NOT concern land, so its a PERSONAL contract that doesnt run with the land).
(a) Evolution of Touch & Concern:
(i) Old Rules Covenants had to do with literal, tangible things with the property
(ii) Then evolved into no competition clauses, behavior rules, etc.
1. Courts began using this clause for covenants that used to touch and concern land but they
didnt anymore b/c circumstances changedOperated historically as a termination doctrine.
a. Restatement didnt like this, but they added termination doctrine (allow people to come
into ct. and claim that the covenant is no longer useful, its an unnecessary burden,
and/or its unfair to owner of burdened land).
(2) Must touch & concern burdened AND benefited land (benefits in gross often knocked out with this)
(3) Note1: Touch & Concern should technically apply to the time when the agreement was INITIALLY made
(not the current situation).
(4) Note2: If a court rules that a covenant doesnt touch and concern, this applies to the benefited AND
burdened side. (E.g. in Eagle Enterprises, after the decision that the covenant was invalid, Eagle could
decide to stop servicing the rest of the homes in the community w/ water.
iv)
Horizontal Privity Required for Covenants only
(1) Grantor/Grantee
(a) Grantor/Grantee: Outright conveyance (with no retained interest)
(b) Subdivision
(c) Lots next to each other
(i) Convey both lots to straw manStraw man conveys it back w/ the covenant in the deed
(d) Landlord/Tenant relationship (tenant has possessory rights; landlord has ownership rights)
(2) Note: Enforcement rights can be created in a 3rd party. [ASK BRYANT ABOUT THISunless 3rd party
has property nearby, wouldnt this violate touch & concern?]
v)
Vertical privity
(1) Relationship between original covenanters and their successors (e.g. A-D; B-C)
A B
||
||
D
C
(a) Traditional Common Law Rule: If the burden would run or the benefit would run, successors would
have to have the Exact Same Interest as the originals (Fee Simple Fee Simple, or Fee Simple
Determinable-Fee Simple Determinable).
(i) Why? If C is taking something less than B, B is still in a position to be sued, shouldnt allow C to
also be sued.
(ii) Rest 3rd: Decision based on: Is it fair for the successor in interest to bear the burden?
1. Is it the type of covenant that its fair to enforce on C (e.g. paying rent) or not (e.g. tree
trimming)
a. Benefits: This was first side to relax; didnt seem fair that a successor wouldnt be able to
sue burdened land owner just b/c he had a slightly different estate.
b. Burdened: Historically, vertical privity more strictly enforced here.
vi)
Ct. should look at the covenant both ways; look at it as if P decided to break the covenant, as well as looking
at the actual case, with D breaking the covenant.
b) Creation by Estoppel Equitable Servitude Only (NOT Real Covenant)

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i)

ii)

Estoppel Requirements (Review):

(1) Someone made a representation that theyre not going to stand on their black letter rights (e.g. go ahead
and use the right of way, I dont need something in writing)
(2) It was reasonable to rely on that statement
(3) It was also reasonable to change their behavior based on what was promised
(4) They did change their behavior based on the statement
Forcing them back to the black letter position would be an injustice. Therefore, a harm would be done.
Shalimar Association v. D.O.C. Enterprises (p.986) Promise to keep golf course open.

c) Remedies
i)
Common Law
(1) Covenants = Money Damages (Historically)
(a) Why were the requirements on covenants are so strict? If you get $$ damages, the amount isnt
limited by the value of the property, you would be personally liable for a theoretically unlimited amount
of damages.
(2) Equitable Servitudes
(a) Injunction (NO $$ damages):
(i) Injunction NOT to do something
(ii) Injunction to do something (possibly according to a very detailed specification) specific
performance
ii)
Rest 3rd
(1) Money Damages AND Injunction/Specific performance for both covenants AND equitable servitudes
d) Negative Easements (p.959)
i)
Doesnt require Horizontal Privity, etc. (a grant of an interest in land, not a covenant)
(1) How to Create: Interest in land: must be conveyed by a writing and recorded.
(a) Can also be acquired by prescription; created by implication (prior use/necessity/estoppel)
(2) Bonus: Even without horizontal privity (required for a covenant), you can get $$ damages.
(3) VERY limited following 7 categories:
(a) Flow of water in an artificial stream
(b) Flow of wind and air through a defined channel
(c) Flow of light to windows
(d) Support for a building from a building on the neighbors land
3 New Categories added in U.S.
(e) View
(f) Conservation Easements
(g) Solar Easements
e) Housing Association Covenants: Options for determining if association covenant is valid 2 kinds of inquiries:
i)
Covenant itself: Is the covenant something that will run w/ the land? (Traditional inquiry)
ii)
Enforcement/Interpretation of Covenant: Covenant is fair on its face, BUT the way in which it is applied is
unfairNote: Under the traditional covenants doctrine, you cant really make this argument; only the validity
of the covenant itself was looked at (not the behavior of the association)
3 Primary Options for determining if covenant is valid:
iii)
Extreme Favorable to Association:
(1) Best judgment rule Boards conduct is presumed reasonable, unless you can prove:
(a) conflict of interest, or
(b) bad faith, or
(c) arbitrary, capricious use of power
(2) Individual (not HOA) has burden of proof
iv)
Rest. 3rd (middle ground):
(1) Boards conduct must be reasonable This is a lower hurdle than the Best judgment rule above
(2) Individual (not HOA) has burden of proof
v)
Extreme Favorable to Individual Homeowner:
(1) Same as Rest 3d, except that the reasonableness test should be applied to each specific situation (not
just as a general rule)
(2) HOA has burden of proof

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(3) Policy: Heavy burden to take on; even if theyre incorporated the directors arent 100% shielded from
personal liability; would require board members to be trained as to what is legally reasonable. Dont want
to disincentivize directors from serving on the board. Part of the reason why the reasonable standard
(with the burden of proof on the association to prove it acted reasonably) is not popular. Too big a
burden.
(a) Also, if the board used the reasonable standard and didnt enforce the restriction on one person,
then someone else could make a waiver claim.
(b) Homeowners are paying for litigation costs associated with these lawsuitsWant to discourage
lawsuits.
vi)
Another option Mixed:
(1) Covenants in master deed/original planPresumed reasonable, unless they violate a constitutional right,
public policy, or are arbitrary
(2) Covenants added later/Boards conductMust be reasonable
vii)
Waiver Claim: P could argue that she saw the covenant being broken (e.g. cats in a lot of the condos), mgmt.
hadnt done anything about it; so they waived their right to enforce the covenant.
f) Policy Touch & Concern v. Rest. 3d: Rest 3d: Leave the covenant in place up front; then if it doesnt work, at
some point we can cut it off w/ a termination doctrine. If it does work, then there wont be a problem and we never
need to terminate it.
i)
Touch & Concern knocks more things out up front. Rest 3rd is more flexible, and allows more things to run (at
least initially). HOWEVER, Touch & Concern is rarely used up front in a lawsuit; it is effectively used more as
a termination doctrine anyways. Downside: The entire covenant is ruled invalid, not just the covenant to the
specific Plaintiff in court, which could have bad consequences on other homeowners (e.g. they dont get water
from the well anymore).
g) Policy: The choices available to consumers will affect a courts decision whether a covenant is valid. E.g. Condo
association requires buyers to pay fees to the developments health club facility.
i)
If buyers have choices where to liveMore likely to approve the covenant (saying it touches and concerns)
ii)
If buyers do not have much choice Less likely to find that it touches and concerns land
h) Note: CA has enacted legislation mandating that 1 pet is allowed (for new communities only). Other specific
things have been prohibited (e.g. a prohibition against flying the flag has been banned, cant prohibit someone
from running a day care center in their home as long as its safe).
i) Cases:
i)
Case: Runyon v. Paley (p.962):
(1) GRunyon
(2) G(burdened w/use restrictions)BPaley
(3) G(benefited)Williams.
(a) Can Runyon sue Paley? NO. Intent No; neither property nor person mentioned in deed; Notice
No. No notice that Runyon could enforce. Touch & Concern Theoretically yes? Horizontal Privity
No; not part of transaction (attempted intended 3 rd party beneficiary/end-and-aim argument failed);
Vertical Privity No; no connection w/ covenantors
(b) Can Williams sue Paley? YES. Intent Yes; clearly written in deed that burden would run;
Reasonably interpret that benefit would also run. Notice Yes; properly recorded; Reasonable to
infer that right to enforce remained w/ land retained by G. Touch & Concern Limiting use to
residential = clearly touch & concern burdened land; Benefited land close by, so touches benefited
land too. Horizontal Privity Yes; part of deed transferring land. Vertical Privity Yes, P within chain
of title.
ii)
Case: Sonoma Development, Inc. v. Miller (p.976): Schaers owned 2 adjacent lots. Their house (lot 38)
encroached onto lot 39 (vacant) by a few inches. The Millers wanted to purchase lot 38, but wanted some
protection allowing them to access the side of their house that extended onto lot 39. The Schaers created a
covenant w/ several different documents: 6/30/1995 Declaration of Restriction: Required no construction
within 3 feet of the lot 38 property (No grantee specified). Recorded. 6/30/1995 Declaration of Easement:
Granted lot 39 access to Lot 38 to maintain the house (No grantee specified). Recorded. 6/30/1195
SchaerMiller (Lot 39): Deed references recorded conditions, restrictions and easement affecting the
property. Recorded. Then Schaer conveyed the remaining lot 38 to Sonoma.

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(1) Was there horizontal privity between Schaer and Miller (required in order to bind subsequent purchasers
of lot 38)YES. Technically, the covenant should be contained within the deed, but all of these
documents were on the same date and part of the same transaction. Thus, horizontal privity existed.
(a) Note Best Method: Add everything to the primary document (the deed)This would clearly be
binding (Could add a Grantee to the Declaration of Easement, but this wouldnt work well for the
restriction, b/c you would be restricting someone who didnt own any property yet (since the property
is actually conveyed after this declaration)).
(b) Policy Note: Notice to subsequent purchasers (Sonoma) is an important policy factor. In this case,
there was plenty of notice.
iii)
Covenant by Estoppel Case: Shalimar Association v. D.O.C. Enterprises, Ltd. (p.986): Shalimar Estates
retains land for golf course and sells adjacent lots. Lots are restricted (in their recorded deeds). Shalimar
represented that the golf course would be maintained until 2000, and then automatically renew for another 25
years. 1976: Shalimar (golf course)Hills (maintained course); 1979: HillsDOC Enterprises [$685,000 =
price w/restriction (Fair price~$2MM w/o restriction)]. DOC didnt want to maintain golf course.
(1) DOC Arguments:
(a) NO WRITING! True, so would have to be created by estoppel.
(b) Changed conditionsNO. Change must frustrate the original purpose of the restriction for the
covenant to be declared invalid. Economic conditions alone arent a persuasive argument.
(c) Affirmative Covenants Onerous; shouldnt be enforcedBUT the majority of US jurisdictions allow
affirmative covenants to run w/ the land.
(d) Covenant continues too longBUT Limited amount of time (until 2025; not forever)
(2) Covenant by Estoppel created.
(a) Price reflected that the lot was restricted ($685k instead of $2MM)
(b) DOC had Notice
(i) Inquiry Notice: DOC intentionally didnt ask anyone; if they had inquired, they would have seen
how important the benefit still was to the peopleIf the benefited side is still retaining a lot of the
benefit
(ii) Actual Notice: Brochures; map showing the golf course filed (in the chain of title)
(c) Homeowners purchased with the reasonable expectation that the promise to maintain the golf course
(made by Shalimar) would be carried out. They invested a lot of money based upon this promise,
purchasing the house and maintaining their properties.
Open-Ended Covenants to Pay Money
iv)
Case: Neponsit v. Emigrant Industrial Savings bank (p.996): Neponsit Realty developed a common interest
community w/covenant to pay dues to an owners association to be formed later. P Owners Association
foreclosing a lien on Ds property for not paying dues.
(1) Covenant is VALID.
(a) Vertical Privity: D argument: Grantor didnt retain any land, so there was never really an actual
transfer of land between the grantor and the owners associationCt 2 arguments: 1) Members of
the owners association actually own land, and in effect they had vertical privity from Neponsit Realty
on the other side of the equation (on the burdened side); 2) Vertical privity doesnt make sense in this
case (Homeowners Association), so were not really going to worry about it.
(b) Touch & Concern D argument: Because the payment of $$ is an affirmative covenant, it does NOT
touch and concern land. Ct: Affirmative covenants are disfavored. BUT in this case, the $$ relates
directly to maintenance of the land itself, so its okay.
v)
Case: Eagle Enterprises Inc. v. Gross (p.1001): Covenant that Orchard Hill would seasonably provide water to
Baum, and Baum would pay $35/year. Orchard Hill(P) Eagle Enterprises; Baum(D) Gross. Gross builds
his own well and doesnt want to pay for the water anymore.
(1) Covenant is NOT valid.
(a) Well agreement doesnt touch & concern land:
(i) Affirmative Covenant (to pay $$)NOT valid unless criteria are met.
1. Covenant must substantially alter their property rights. This covenant doesnt; Other water
sources; only 6 months/year; other homeowners wont be harmed (price wont become
prohibitive).
a. Counter: Well definitely touches land, so aff. Covenant is allowed. Also, this will harm
other water users in the community (raise prices)

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vi)

vii)

viii)

ix)

x)

xi)

b. Policy: This allowed homeowners to get a lower price, so its a good thing. Allowing them
out of the covenant gives them an unfair windfall.
2. There is no end to agreement; it goes on in perpetuityseems to be an important factor
3. Benefit seems to be in gross; money is going to Orchard Hill
a. Touch & Concern was often used to knock out benefits in gross (didnt touch & concern at
least one party)
Covenant Not to Sue: Case: Lakeview Blvd. v. Apartment Sales Corp. (p.1005): CityDeveloper (Allowed
developer to develop property w/ promise not to sue based on specific soil conditions); DP1; P1P2
(owners of condos whose homes were ruined when the soil gave way). P2 sues city; city claims the covenant
not to sue runs w/ the land.
(1) Touch & concern? Yes. The covenant not so sue is very strictly limited (only to risk from eroding soil), so
it is okay with this court.
Restraints on Alienation Case: Kerley v. Nu-West, Inc. (p.1009): Resorco(15 acres) Kerley for $40k up
front + promise to develop + promise to pay 10% of each sale price.
(1) Covenant is Valid. DOES touch & concern.
(a) quarter sales are invalid Cant have a fee simple and a Fine on alienation. They discourage
sales because the owner doesnt get full value of property. BUT this case is different; this is more of
an installment plan. 10% is less than 25%, so it seems more reasonable. Also, the up front price was
much lower because of this agreement.
(b) Resorco has retained land (which was the land benefited by the developed land), so he clearly has
interest in land
(c) DurationUnlimited, BUT ct. imposes some limits on this; if Resorco doesnt take action to make
sure that the land is developed, then through the concept of laches he will lose his right to enforce the
10%. Difficult argument.
(d) Worthwhile purposePurpose of transaction was to get land developed and sold; opposite of quarter
sales which would reduce the likelihood that land would be marketable.
Design Controls Case: Rhue v. Cheyenne Homes, Inc. (p.1028): Subdivision has a covenant requiring the
architectural committee to approve any changes to a lot in the subdivision. P didnt submit their plans to the
committee, and tried to build a Spanish style house on their lot. Architectural approval requirement is valid.
As long as the committees refusal is in good faith, then it is enforceable. Note: Some ct.s have held that
without specific guidelines, this type of covenant would be unreasonable
Restrictions on Occupants and Personal Freedoms Case: Nahrstedt v. Lakeside Village Condominium
Assn, Inc. (p.1032): D condo association does not allow pets. This restriction was in the written declaration
for the development. P had indoor cats and brought suit to prevent the condo assn from enforcing the
restriction. Restriction is valid. Ct. uses Best judgment rule Boards conduct is presumed reasonable,
unless you can prove: conflict of interest, bad faith, or arbitrary, capricious use of power. Individual (not HOA)
has burden of proof.
Changed Conditions: Case: Rick v. West (p.1044): Developer creates an area w/restrictive covenants that it
has to be used for residential use. D sells a lot to P (and very few other people!). D sells retained property to
D2. D2 wants to sell to a hospital (in violation of covenant)For P. No changed circumstances.
(1) P argument: Changed Circumstances. In the deed, it says that special unforeseen conditions may
require exceptions to the covenants. Neighborhood has changed new zoning laws, commercial
development around the property, gas transmission line making property unusable
(2) NO. All of the changes are OUTSIDE the subdivision involved; therefore, it does NOT qualify as
changed conditions. Person making the change argument must have nothing to do with the
changes that have occurred.
Amendment Case: Evergreen Highlands Association v. West (1050): Subdivision w/63 lots had a large
common area (parks, tennis courts, etc.). Original covenants did not require that people pay dues. There
was a clause that by 75% vote they could change or modify the restrictions. The assn voted to require fees
of $50/year. P doesnt want to pay, although he uses the facilities. Ct. rules for assn. New covenant is
valid.
(1) No real difference between a new covenant and a modification to an existing covenant.
(2) Implied Consent: There is an implied agreement to accept the proportionate costs for maintaining and
repairing common facilities that they use.

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xii)

Termination Case: Westwood Homeowners Assn v. Lane County (p.1058): County acquired a property
through tax foreclosure. Statute said that liens and encumbrances would be extinguished by the
foreclosure.
(1) Does the foreclosure extinguish outstanding liens? Yes. Specified by statute.
(2) Extinguish ongoing power to make assessments? No. The term encumbrance is not defined in the
statute. In another tax statute: liens and encumbrances read as one phrase = outstanding money
obligations. Read this way, it does not include a covenant to pay assessments.
(a) Policy: Allowing a tax foreclosure to terminate the covenant to pay assessments would wreak havoc
on community housing.

14) Protection against Discrimination in Housing

a) Civil Rights Act of 1866: No discrimination based on race
i) Exemptions NO exemptions under the Civil Rights Act
b) Federal Fair Housing Act: 1968 More comprehensive than the Civil Rights Act:
i) Includes discrimination on other grounds (national origin, religion, etc.)
ii) Cant advertise in a way that indicates discrimination
iii) Provides more enforcement mechanisms; allows damages to be awarded
iv) Family: Protects people w/ children, but not unmarried couples
v) Gender: Protects against gender discrimination, but not sexual orientation (but AIDs qualifies as a disability)
vi) Alcoholism is a disability
(1) You have to screen based on fact, not assumption. Tell them that they cant drink/do drugs on the
premises; if they cant abide by that, then you can screen them out.
(2) Fallback: You can use your eviction power if a tenant does cause a problem.
vii) Exemptions: SFR, owner <3 houses, youre living in the house, etc.
(1) Mrs. Murphy exemption Cant force someone to live next to people they dont like
(a) This small-scale activity wont affect housing discrimination as much as large scale operations
(b) Note: Mrs. Murphy exemption doesnt apply to entire act. Cant lie. E.g. cant say place is not
available if it really is; would have to just say No.
c) Federal Fair Housing Act Additional Information:
i) Doesnt say that all discrimination is bad,
ii) It DOES say that some groups have been shut out so completely (market closure) that we as a society have
to do something about it.
(1) Also levels the playing field by making everyone operate under the same rules (even if renting to a
protected class does, in fact, have negative economic consequences)
iii) State/municipal laws can be stricter than the FFHA (e.g. CA has very strict guidelines; NY City doesnt allow
discrimination based on profession). This is a floor.
d) Cases:
i) Case: Shelley v. Kraemer 1948 (p.786): Covenant for 50 years restricting the use of property as owners or
tenants to white people.
(1) Before this case, States couldnt enact laws promoting segregation, but individuals could
(2) Contract was legal (at the time) as a private contract.
(3) BUT a court enforcing the private contract IS state action; The state cannot discriminate. This is not
legal.
(a) Ct. took the extraordinary step of declaring the ct. a state actor in order to deal w/ an
incredibly important issue.
ii) Case: Jones v. Alfred H. Mayer Co. 1968 (p.795): People refused to sell their home to a black person. For
P; illegal to discriminate based on race.
(1) Civil Rights Act of 1866 No discrimination based on race
(2) Federal Fair Housing Act More comprehensive than the Civil Rights Act; includes discrimination on
other grounds (national origin, religion, etc.); more inclusive: e.g. cant advertise in a way that indicates
discrimination; provides more enforcement mechanisms; allows damages to be awarded
(a) Congressionally enacted legislation that regulated PRIVATE conduct. How is it constitutional for
congress to regulate private behavior?
(i) 13th amendment forbid slavery. This sets the constitutional groundwork for not allowing people
to discriminate based on race
(3) This case confirms that these acts were constitutional

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15) Eminent Domain

a) Federal right to take land for public purposes with just compensation
a) 3 types of Takings:
i) Eminent Domain Taking your land upfront.
ii) Inverse Condemnation Taking a property interest from you (e.g. flight space over your property)
iii) Regulatory Takings [Next Chapter] Govt. prevents you from doing certain things on your property (e.g. you
can run a factory, but you cant pollute the river).
b) Eminent Domain Overview
i) Federal: Grounded in 5th amendment (implied right: no right can be taken without due process of law and just
compensation)
ii) State: 14th amendment extending U.S. constitution to the states
(1) State Constitutions Can create additional requirements
iii) Traditional Use: Create highways, railroads, etc. States needed power as well.
c) Primary Issues:
i) Is it property? Does NOT have to be REAL property (e.g. Raiders, video of JFK assassination)
ii) Public use?Expanded to public purpose (Poletown/Hawaii: Does not necessarily have to actually be used
by the general public if it serves a public purpose).
(1) Sufficiently important purpose to justify eminent domain?
iii) Courts Standard of Review? Rational standard of review very low standard.
(1) Policy: Should there be a higher standard of review than the rational standard for property that isnt Real
Property?
(2) Policy: Eminent Domain is a Political process that is LATER subject to judicial review. You need to stop it
at the political level; during the brief judicial review, its usually too late.
iv) What is Just Compensation?
(1) Just Compensation Includes:
(a) Fair Market Value
(i) Timing: FMV once the condemnation proceeding is underway (NOT earlier, when it might be
higher/Poletown) .
(b) AND Additional Elements:
(i) Income from existing use (e.g. a business) Not directly included; included indirectly through its
effect on fair market value
1. Exception: If govt. takes a business (e.g. the Raiders), then they actually value the business.
a. Note: If govt. takes a businessMust pay value of the business. BUT if they just take the
land (that the business is on)Do NOT have to pay for the value of the business (Ct. will
prevent this type of end-around move).
(ii) Exceptional value of land (e.g. unique non-profit that benefits the community; CAN be taken into
account)
(c) Does NOT equal/include:
(i) Replacement value (if this were the standard, the govt. would be more careful. Also, instead of
just looking for the CHEAPEST land, the govt. would instead try to find the BEST land, e.g. a
straight line for a highway).
(ii) Consequential damages Cost of moving, interruption of business, loss of goodwill, etc. NOT
included
(2) Policy: Many people think that the standard of review should be raised regarding Just Compensation to
help balance out the low standard of review for the public use/purpose. NOT currently the case?
d) Condemnation of Covenants
i) Court is split:
(1) Arkansas case Did NOT pay for violation of restrictive covenant
(2) Palm Beach case DID have to pay for violation of affirmative covenant to pay maintenance fees
(a) Policy Note: If youre released from a burden, then you do NOT have to pay the govt. back Bonus!
Windfall!
ii) Key Policy Issue: If we treat these as property rights, then the govt. will not be able to take as much land.
What is more important, preserving these rights or allowing the govt. to take land for the public good?
iii) Criteria that cts. seem to use:

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(1) Who is the benefited party; what type of benefit? (In gross=bad)
(2) How many benefited people? (lots=complicated=bad)
(3) Easy to calculate amount due? (complicated=bad)
(4) What is P asking for? (asking for $$ = good; asking for injunction = bad)
iv) Possible official Justifications for Govt. not paying for covenant violations:
(1) Real Covenants are NOT property rights; they are contract rights that happen to run with landCan be
taken without due process. BUT how can they not be property rights when they have to be embedded in
a deed?
(2) Whether or not theyre property rights; govt. is only responsible for the rights of the land that is
directly taken. Looking at rights that are just connected land is like including consequential
damages (which is NOT done)Traditional view of the courts.
(3) Real Covenants ARE property rights, but for purposes of eminent domain law, they are NOT property (at
least for compensation).
(4) SOME covenants are property rights (e.g. affirmative covenants to pay), and some are not property rights
(restrictive use covenants).
(a) But this is the opposite of what weve learnedrestrictive covenants WERE historically property rights
and affirmative covenants were NOT property rights! The only real reason for this is that affirmative
covenants to pay are logistically so much easier to value.
(5) Covenants ARE property rights, but if the harm would have been the same with or without the covenant,
then you will NOT be compensated.
e) Partial Takings
i) Just compensation = FMV (before) FMV (after)
(1) Result: Owners whose remaining property (that is not taken) increases in value because of the taking do
NOT really get the full value of the property that the govt. takes (although they dont really lose any
value). BUT owners whose land value is increased by the taking get a windfall.
(2) E.g. Riverfront property example.
f) Cases:
i) Case: Hawaii Housing Authority v. Midkiff (p.1066): Small group of people owns a huge % of Hawaii property.
Govt. decides that this has created a bad situation of market closure. Govt. passes legislation to allow a
forced sale of land under certain circumstances from owners to the tenants of the land. Valid use of eminent
domain.
(1) Public Use/Purpose?
(a) Argument Against: Forcing sale to private individuals is NOT a public benefit
(b) Argument for:
(i) Tenant Side Allow tenants to get access to land (However, there was a decent market for the
properties on the land, so this is not a clear case)
(ii) Landlord Side Breaks up oligopoly and removes a landed gentry
1. Is this a public purpose? Is it a sufficiently important public purpose to allow the govt. to take
this action?
(2) Standard of Review = Rational: The eminent domain power must be rationally related to a conceivable
public purpose. (Ct. has narrow role in this process and should be deferential to the legislature;)
(a) Why? Legislature is in a better position to determine what really is a public purpose. This will be
publicized, so the voters will vote them out if its a bad policy.
(i) BUT the minority could suffer from a tyranny of the majority in this case.
(ii) BUT if they get voted out, the decision has already been made (but officials have presumably
taken this into account beforehand)
(iii) BUT if there is a problem (e.g. Poletown), the legislature is likely to act desperately and cave (to
G.M.). In this case, we need strict judicial review.
(iv) If public use is expanded to public purpose, then the rational standard of review can be
dangerous. The legislature is no longer strictly limited to public use
(b) Note: If something hasnt worked before in one state, a different state could still rationally try it. No
strict post hoc review. E.g. Poletown failing doesnt necessarily mean than CT cant try something
similar.
(3) Compensation: Very easy in this case. People being displaced dont live there; just investment owners.
Market value of land.

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(a) Note: Always difficult to value land. This case, purpose was to reduce inflated market value, so how
to value fair market value? Have hearings about it.
ii) Case: Poletown: Eminent Domain used to force sale from private property owners to GM.
(1) Public Use? Yes. Economic development = Public purpose. (But transaction ONLY benefiting private
enterprise, e.g. Donald Trump getting a casino in Atlantic City would be Private use).
(2) Standard of Review = Rational Review
(3) Compensation = Market value AT THE TIME OF THE CONDEMNATION.
(a) People who cashed out early got a bonus (justification: in order to avoid court costs); as time goes on,
there are more vacant houses from people selling, and market value decreases
iii) Case: City of Oakland v. Oakland Raiders (p.1075): The Raiders were preparing to sell out and leave
Oakland. The city tried to condemn the Raiders through the use of Eminent Domain.
(1) Is this property? Yes, It does NOT have to be Real Property.
(2) Is this a public use/purpose? Yes (but city loses b/c it violates the Commerce clause. NFL team =
interstate commerce; state only has limited power to affect interstate commerce).
(3) Just Compensation? Easy question fair market value of the team.
(4) Note: F*ck the Raiders.
Just Compensation
iv) Case: United States v. Fuller (p.1084): Farmer is using govt. lands adjacent to his property. The land is more
valuable because it is next to this land. Govt. does NOT have to include the fact that the land is adjacent to
govt. property for just compensation. Since govt. can take away the farmers right to use the adjacent land, it
shouldnt have to pay anything additional for that right.
Inverse Condemnation
v) Flyover Case: Griggs v. Allegheny County (p.1088): P lived adjacent to a military airport. When taking off and
landing, planes came within 30 53 feet of Ps house. P brought an inverse condemnation claim. Valid
claim of Inverse condemnation; govt. has to pay.
(1) Use of land presupposes use of airspace above it. Precedent for overflights being a taking.
(2) Flights are only intermittent, BUT this doesnt matter (similar to Adverse Possession seasonal use, this
can constitute possession/use of land).
(3) Note: Why not a nuisance? Govt. using state-of-the-art technology. Social utility of airport use is much
greater than Ps use of his houseProbably wouldnt qualify as a nuisance.
vi) Case: Phelps v. Board of Supervisors of Muscatine (p.1091): Intermittent flooding of Ps land = Inverse
Condemnation. Even though there was some flooding before; there is MORE flooding now because of the
govt. building a bridge over the river.
vii) Case: US v. 531.13 Acres of Land (p.1092): Govt. forcing plant to stop polluting a creek is NOT a govt. taking.
NO valid inverse condemnation claim.
Condemnation of a Servitude
viii) Case: Arkansas State Highway Commission v. McNeill (p.1095): Govt. took Ps neighbors land for a freeway.
This broke a mutual covenant restricting use to residential purposes. P wanted compensation for violation of
the covenant. NOT a taking; NO inverse condemnation.
(1) Damage to P was not directly caused by the violation of the covenant. The damage was caused by the
particular use of the land (a freeway). If the govt. used it for a park, P would have actually gotten a
windfall.
(2) If we allowed this, then people could create restrictive covenants once they heard their property was
going to be condemned. Not convincingCt. could just say that only covenants in place before the
announcement would be paid out.
(3) Would make eminent domain very expensive and unpredictable: 1) Difficult to value in this case; 2) Many
homeowners could be paid in this caseThis seems to be the real reason for the ct.s decision (even if
they wont admit it).
ix) Case: Palm Beach County v. Cove Club Investors, Ltd. (1097): Govt. took land that had a covenant to pay
maintenance fees for a recreation area. Govt. has to pay; Valid inverse condemnation claim.
(1) This jurisdiction: restrictive covenants are not property rights, BUT affirmative covenants to pay $$ ARE
property rights.
(2) Logistically easy to calculate and pay in this case (unlike Arkansas case above):
(a) Only 1 person due money
(b) Very specific sum of money

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(3) Only asking for $$; not asking for injunction (like Arkansas case). Govt. can still take land = more likely to
rule in Ps favor.
x) Case: Power co. had easement to use land in order to service neighboring land. Govt. condemns land and
does NOT pay the power co. Ct. rules that b/c benefit is in gross, its not a property right.
xi) Case: Building restrictions not to erect tall buildings. Govt. builds tall building, and does NOT compensate
formerly benefited owner.
Partial Takings
Issue: Land near river is more valuable than land away from river. How do you value the portion of the property
that is actually being taken (the more valuable riverfront property), when the other land becomes more valuable as
a direct result of the taking?
o Answer: Just compensation = FMV (before) FMV (after)
o Result: Owners whose remaining property increases in value because of the taking do NOT really get the
full value of the property taken (although they dont really lose any value overall). BUT owners whose
land value is increased by the taking get a windfall.
Owner A (whose more valuable riverfront property is taken) is arguably screwed. Owner C
(whose less valuable property is turned into more valuable riverfront property) gets a windfall.
Old value = $75,000 ($25,000 + $50,000)
Owner A (50 acres)

Owner A (50 acres)

Value = $50,000

Old value = $25,000

Owner B (50 acres)

Owner C (50 acres)

River
New value = $50,000;
Screwed by govt.

DAM (Taken by the Govt.)

New value = $50,000

(Woo hoo! windfall!)

Govt. builds a dam that floods several properties:

Downstream owners do NOT get any compensation. They did not LOSE land; they actually got more land (b/c
there was less water). NO compensation even if they use the water
Cost of Land:
o By river (A/B) = $1,000/acre
o Away from river (C) = $500/acre
Government Argument:
Owner A:
Total old value $75,000
Total new value ($50,000)
Net Loss
$25,000
Owner A argument: The 50 acres should be valued on its own $50,000
Owner C is allowed to keep the windfall.
Policy Note: Govt. could decide to take some of Cs land (at $500/acre) and then resell it at ($1,000/acre) to recoup some
of the costsGovt. arbitrage opportunity.
Govt. predicting that flooding might go onto Cs land is RATIONAL, so it would pass judicial review.
16) Regulatory Takings
a) Main Themes:
i) Must be for a public benefit (Private benefitgovt. has to pay)
ii) If its a nuisancegovt. does NOT have to pay
(1) Protect public health & safetyGovt. does NOT have to pay
iii) If the govt. action denies a property owner an owner economically viable use of his land. More likely to
have to pay.
b) Cases:
i) Case: Pennsylvania Coal Co. v. Mahon, 1922 (p.1109): Legislature passed a bill prohibiting coal mining that
would cause surface subsistence (which is a bad, bad thing). P was a single property owner that had a prior

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agreement with a coal company that allowed them to mine, even if it harmed their support rights. P wanted
to stop company from mining. TakingGovt. has to pay.
(1) Creates a private benefit for the property owner (who contracted away his support rights; he shouldnt get
a windfall): does not substantially advance legitimate state interests
(a) Note: At this time, govt. could NOT use eminent domain and give the land to another private person
(like Hawaii/Poletown)Seems to be an important reason for the ruling.
(2) Made it impossible to mine coal: Denied an owner economically viable use of his land.
(a) Another Possible Approach: Could say it IS a legitimate public purpose, but govt. still has to pay.
(b) Dissent (3rd approach): Protects public health & safety = Public purpose (removing a
nuisance)should be protected
(i) Precedent: Brewery sued during prohibitionCt: NOT a taking; controlling a noxious use of
property (nuisance)
ii) Case: Keystone Butuminous Coal Assn v. De Benedictis (p.1142): Legislature passes statute to regulate coal
mining. Coal company suing. NOT a TakingGovt. does NOT have to pay.
(1) Distinction from Pennsylvania Coal Co. v. Mahon, 1922:
(a) More of a public benefit in this case
(i) Procedural posture is different: individual owner is not suing; coal companies are suing. The
court is looking more broadly at the purpose of the legislation; not just the benefit for a private
owner.
(b) Less of a taking (not 100% taking)Different view taken by the court (not taking 100% of specific
pockets of coal; taking 2% of ALL available coal).
(i) Coal miners can still mine most coal; estimated 2% of available coal will have to be left
(ii) Issue: Is govt. taking 100% of a little bit of coal, or is govt. taking 2% of all of the coal?
iii) Case: Miller v. Schoene (p.1113): Legislature passes legislation to prevent the spread of plant disease to
valuable apple trees. People are not allowed to grow cedar trees within 2 miles of apple orchards (even if
theyre NOT infected). NOT a Taking; Govt. does NOT have to pay.
(1) Public Benefit: Public has an economic interest in the valuable apple industry (not just benefiting private)
(2) Nuisance: Dont have to payPotentially infected cedar trees are a Nuisance
(a) Legislature was forced to choose between preventing cedar trees from being a nuisance (do
nothing) and preventing apple trees from being a nuisance (pass legislation). In this case, govt. was
justified in choosing the most valuable interest to protect.
(i) Counter: Nuisance should ONLY be for health/public safety; should NOT be used to protect
purely economic interests.

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