Property outline

1) Default rules
a) You can copy anythingnothing is owned unless theres a specific provision that somethings
property (e.g. Chanel, Cheney Bros.). This fosters competition.
b) You dont have a property entitlement unless you can point to a legal basis for it
2) Property rules vs. liability rules
a) Property rules: property interest cant be taken from owner w/o her consent (all transfers are
voluntary)
b) Liability rules: property interests can be taken w/o owners consent but only upon payment of
judicially determined damages (transfers are forced)
3) What are property rights?
a) Sticks in a bundle
b) Rights to include, rights to exclude
i) These 2 rights are the necessary & sufficient conditions of transferability
ii) Jacque v. Steenberg HomesCourt held that jury was allowed to award $100K in punitive
damages when compensatory damages were only $1, because the Jacques would otherwise
have no right to exclude
iii) State v. ShackCourt held that Tedesco couldnt exclude govt attempts to help migrant
workers (migrant workers cant get govt help on their own). Problem: how are prop owners
supposed to know who they can & cant exclude?
4) First possession
a) Capture doctrine
i) Popov v. Hayashi: Court adopts Grays Rule (that possession requires exclusive dominion &
control over item after incidental contact w/people & things). Because it cant assume that
Popov wouldve caught the ball or that he wouldve dropped it, the court gives equitable
division to the parties.
b) First in timefirst person to take possession of a thing starts the chain of title
i) Acquisition by discovery
(1) Johnson v. MIntosh: Europeans acquired US by discovery, which passed to the US.
Indians not in prior possession b/c they were nomadic.
ii) Acquisition by conquest
(1) Johnson v. MIntosh: Europeans acquired US by conquest over Indians, which passed to
the US
iii) Policy considerations of Johnson v. MIntosh2 options:
(1) Give to P (got land from Indians) b/c Indians occupied land first
(2) Give to D (got land from US) b/c of efficiency in resolving/preventing disputes &
upholding authority of US govt
iv) Johnson v. MIntosh: Indians had right of occupancy, but not claim of title
c) Labor investmentproperty belongs to whoever invested labor & enhanced propertys value by
dong so
d) Acquisition by creation
i) Can be based on both first in time and labor investment theory
ii) Copycats
(1) Limited monopoly on intellectual property
(a) Monopoly to protect property interests in creator long enough so that she has
incentive to do research resulting in quality products.
(b) Limited b/c in the publics interest to encourage competition (to get cheapest
rendition of what we like)
(2) International News Service v. Associated Press: Court calls news quasi-property,
distinguishing between the basis of news (the event) and the creation of news (words
applied to describe the event).
(3) Cheney Brothers v. Doris Silk: Court allowed copying & imitation of Ps silk patterns to
avoid monopoly & encourage competition
(4) Smith v. Chanel: Court said as long as consumers werent deluded that about who made
product or what product it, public interest is satisfied
iii) Cyberspace

Property outline
(1) Virtual Works v. Volkswagen: Court held that Virtual Works acted with bad faith (taking
someones property & using it), thus violating the Anticybersquatting Consumer
Protection Act. Problems:
(a) Background rule is that you dont own property unless specific provision said soso
did Volkswagen really own the domain name to begin w/?
(b) Bad faith standard is ambiguous and leads to market uncertainty
iv) Property in ones personacelebritys labor in creating persona of value is protected against
anothers using it for profit. Cant use celebritys name, likeness, voice or signature for profit
w/o celebritys consent (Vanna White)
v) Property in ones person
(1) Moore v. Regents of the UC
(a) Conversion = wrongful use of someone elses property rights
(b) Majority refuses to extend property entitlement over ones cells b/c of downstream
consequences of sale of body parts on the poor, plus scope of liability too large. It
defeats Moores conversion claim & says theres sufficient remedy in tort (informed
consent & breach of fiduciary duty).
(c) Dissent says tort claims hard to prove.
5) Subsequent possession
a) Adverse possession
i) If, within the # of yrs specified by the state S/L, the owner doesnt take legal action to eject an
AP . . .
(1) The owner is thereafter barred from bringing an action in ejectment AND
(2) The AP has title to the land
ii) Elements
(1) Actual entry giving exclusive possession
(a) Defn: not sharing possession with the owner or the public
(b) Purpose: Embed concept of actual possession in property
(c) Determines 3 things (all you need to know in a fact hypoanything else is a red
herring. Dont care about anything happening after entry):
(i) When clock starts to run
(ii) By what time AP can expect to have acquired possessory interest
(iii) Title interest to property & against whom it is running
(2) Open & notorious
(a) Defn: acts appropriate to the condition, size, & locality of the land to constitute
reasonable notice to the owner
(b) Purpose: To give notice to owner so she doesnt unfairly lose property
(c) Size of the encroachment is relevant
(d) Actual knowledge is relevant
(e) Mannillo v. Gorskineighbors steps minimally encroach on Ps land
(i) Court said there was insufficient notice to owner b/c encroachment was so small
(ii) Court inquired whether P had actual knowledge of steps b/c that would be
notice, like open & notorious acts would be
(iii) Court ultimately forces a conveyance on encroachment (not adverse possession)
theory b/c doesnt seem right to have D rip out steps. D has to pay P. If D
intentionally encroached, however, court would have ordered that steps be taken
down
(iv) When you get a problem involving a small amount of land, consider both
adverse possession and encroachment theory
(3) Adverse & under claim of title (i.e. hostile/without owners consent)
(a) Defn:
(i) Objective: Behavior that suggests to a reasonable person that a claim is being
made to his land.
(ii) Subjective: State of mind can be relevant (e.g. AP must have intended to take the
land)
(b) 3 views to state of mind requirement:
(i) Objective standard (state of mind irrelevant)

Property outline
(ii) Good-faith standard (AP honestly believed that she owned it)
(iii) Aggressive trespass standard (AP thought she didnt own it but intended to make
it his)
(c) Color of title (satisfies adversity requirement)
(i) Claim founded on a written instrument (defective writing)
(ii) Constructive adverse possessionactual possession under color of title of only
part of the land covered by the defective writing is constructive possession of all
that the writing describes
(iii) Generally, having color of title makes it easier for you to claim adverse
possessioncourts & legislatures give breaks
(4) Continuous for statutory period
(a) Defn: Requires only degree of occupancy that average owner would make on that
particular type of property
(i) Howard v. Kuntostaying in summer home only during summer is continuous
(ii) If owner checks summer home in winter, wouldnt have successful claim b/c
knows what time its typically used & that AP wouldnt be there at that time
(b) Purpose: to not give land someone for series of trespasses
(c) Tacking
(i) Tacking land to other landwhere defective deed describes less land than what
purchaser & seller thought (seller was AP of part of land, but thought he was
owner of record of all of it)
(ii) Tacking time
1. Successive APs can tack time where there is privity of estate, i.e. voluntary
transfer, between them (American rule). Privity not required under English
rule.
a. Not permitted by AP2 in case of ouster by AP2. Permitted by AP1 if
she reenters after AP2 ousts her, although S/L is tolled during AP2s
possession.
b. Not permitted by AP2 in case of abandonment by AP1
2. Successive ownerships are also tacked where there is privity of estate, i.e.
voluntary transfere.g. If O conveys to C and AP entered while O owned
land, S/L continues to run against C
a. AP can only take by possession someones possessory right. There can
be more than one possessory right, held by different people, e.g. present
interest holder (B) & future interest holder (C). If AP adversely
possesses against B and then B dies, C can interrupt APs possession (if
he doesnt, AP gets land after statutory period has passed). If C then
sells to D, D can recover only by suing C. D is cheapest cost avoider
all he had to do was look at land.
b. Cant tack Bs ownership to Csno privity between them
3. Marketability conceptAP2 can sell his & AP1s tacking time to AP3
(d) Abandonment (intentional relinquishment of possession) destroys continuity. If AP
returns, S/L runs anew. If AP intended to return, however, S/L continues to run.
Intent is important here.
(e) Interruption (successful ejection suit or re-entering by owner) destroys continuity
(f) Disabilities
(i) Some statutes extend the S/L for owners w/who are unable to bring lawsuits (b/c
of infancy, insanity, imprisonment, etc.). Whenever the owner has a disability,
the relevant statutory period is whichever is longer
(ii) Death is considered removal of the disability
(iii) Disability is immaterial unless it existed at the time the cause of action accrued
(i.e. when adverse possession began)
iii) Van Valkenburgh v. LutzCourt refused to give Lutzes title as APs b/c:
(1) No hostility (Lutzes disavowed ownership in previous litigation where they claimed only
prescriptive right. Dissent argued that theyd already adversely acquired title by then, so
that disavowing ownership was insufficient to actually be stripped of it) AND

Property outline
(2) No improvement to land (as required by NY statute)
iv) Once AP acquires title to the land, she cannot record it b/c it doesnt arise from a recordable
document. To record the title, the AP has to file a quiet title action against the former owner
so that the decree in the suit will be recorded
b) Acquisition by prescription
i) Prescription is a limited rightproperty has to be used for the reason interest was acquired
(e.g. Can only walk on walkway; cant build house on it)
c) Acquisition by gift (personal property)
i) Elements
(1) Intention to give property to doneeoral evidence
(2) Delivery to doneeobjective acts. Manual delivery required unless its impracticable
constructive or symbolic delivery may then be allowed
(a) Manual
(b) Constructivehanding over key/object that opens access to subject matter of gift
(c) Symbolichanding over something symbolic of property given (usually a written
instrument declaring a gift of the subject matter)
(3) Acceptance by donee
ii) Types
(1) Gift inter vivos
(a) Gift made during donors life w/o contemplation of impending death
(b) Irrevocable
(c) Can make gift inter vivos while near death, as long as gift wasnt made in
contemplation of the impending death (e.g. bday gift)
(d) Gruen v. Gruenfather gave remainder of title in painting to son.
(i) Court says manual delivery not required b/c fathers intent was to retain
possession during his life; manual delivery to son and redelivery to father would
be too burdensome. Symbolic delivery via letter sufficient.
(ii) Court says donees acceptance is presumed where gift is of value to him.
Additionally, son relied on gift & demonstrated it by keeping letter & telling
friends.
(2) Gift causa mortis (effectively a substitute for a will)
(a) Gift made in contemplation of immediately approaching death
(b) Revoked if donor recovers
(c) Subject to stricter requirements than gift inter vivos b/c of concern over safeguards
of Statute of Wills (danger of fraud)
(d) Newman v. Bostdecedent gave P keys that accessed insurance policy in bureau
drawer and furniture in a room. Court refused to give life insurance policy to P b/c
decedent couldve manually delivered it. Gave P furniture b/c decedent couldnt
manually deliver it.
iii) Donor must intend to pass title presently. Promise to give property in future is a gratuitous
(and unenforceable) promise, not a gift.
6) Possessory estatessee table
a) All pieces of conveyance have to add up to infinity. E.g. will creates a l.e. followed by a
remainder in a l.e., followed by a remainder in a f.s.d.
i)
Life
Life
Fee simple
Fee simple
estate
estate
determinable
absolute
|--------------------|-------------------|-----------------------|----------------------
Future interest Remainder
Remainder
Possibility of
reverter
b) Words of purchase ID person in whom estate is created (to A . . . )
c) Words of limitation describe the type of estate created ( . . . and her heirs)
d) Freehold = estates in land other than leases. Ownership + possessory interest.
e) Non-freehold = leases
f) Heirs = persons who succeed to the real property of an intestate decedent
i) Issue = varies w/jurisdiction; basically means descendants

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(1) Issue per stirpes: If any child of the decedent dies before the decedent, and leaves
children who survive the decedent, the childs share goes to her children by right of
representation. E.g. If child dies, per stirpes distribution gives each of her two children
of childs share
g) Restraints on alienation
i) Must be reasonable
ii) Cant be illegal
iii) Cant be purely spiteful
iv) Cant constrain personal autonomy where theres clear policy in that area
(1) E.g. marriage. Validity of restraint depends on whether its viewed as intended to
penalize marriage ( invalid) or provide support until new support arises ( valid)
v) Policy concerns
(1) Impairs marketability
(2) Impairs ability of creditors to reach it
(3) Discourage improvements to land
(4) Concentrates wealth in the already rich
7) Future interestssee table
a) Alternative contingent remaindersif a partys remainder vests, the other partys remainder cant
vest
b) Trusts
i) Trustee is legal owner; beneficiaries are equitable owners
ii) Trustee manages ppty for benefit of beneficiaries; has legal ownership of personal ppty and
the legal fee simple in land; and has power to sell trust assets & reinvest proceeds in other
assets (unless trust instrument and circumstances indicate that settlor intended that the
particular ppty remain in the trust)
iii) E.g. O conveys to X and his heirs in trust for the benefit of A for life, then for B, and if B
does not survive A, for C. X has the legal fee simple, A has an equitable life estate, B has an
equitable vested remainder subject to divestment in f.s.s.e.i., and C has an equitable executory
interest in f.s.a.
iv) Swanson v. Swanson: Law favors conditions to be subsequent and vesting remainders.
Childrens interested could only be divested by power of appointment or if Bennie left
children surviving Gertrude. Neither happened, so Bennies interest wasnt divested (Peggy
gets to inherit it).
c) Rule Against Perpetuities
i) No future interest (executory interests, contingent remainders, and vested remainders subject
to open) is valid [from the start of conveyance] unless it must vest, if at all, not later than 21
years after some life in being at the creation of the interest.
ii) Validating life = life in being at creation of interest who validates the grant
(1) Can only be a person who can affect vesting of the interest. Everyone else, including
afterborns, is irrelevant.
(2) May or may not be mentioned in the grant
(3) Can use different lives to validate different parts of the conveyance
(4) Remote possibilities
(a) The female octogenarian: Law conclusively presumes that a person can have
children so long as she is alive, even if she is old or physically unable to have a child
(can adopt)
(b) The unborn widow: Law assumes that a persons surviving spouse might turn out to
be a person not now alive
iii) Be sure to identify whether the gift is inter vivos or causa mortisyou look at the conveyance
when it takes effect
iv) If the future interest violates the RAP, it is as if that interest is written in invisible inkcross a
line through it and mush the rest of the title together
(1) E.g. To A for life, then to As children for their lives, then to As grandchildren for their
lives, then to As great grandchildren in f.s.a.
(a) A is the measuring life for the last 2 classes
(b) L.e. in A, remainder in l.e. in As children, reversion in f.s.a. in O

Property outline
(2) E.g. To A for life, then to Os children for their lives, than to B if B graduates from
college. A, O, & B are alive; O has children
(a) O is the validating life for 1st class (his children), and B is validating life for 2nd
class (himself)
(b) L.e. in A, vested remainder subject to open in l.e. in Os children, contingent
remainder in f.s.a. in B, reversion in f.s.s.e.i. in O (O has a f.s.s.e.i. after Os children
die & before B graduates from college)
(3) E.g. To A for life, then to Os children who graduate from college by age of 30, then to
B if B graduates from college.
(a) Problematized class: O is the measuring life of the ascertained taker problem, Os
children are the measuring lives for the condition precedent. Combined effect is that
we dont know within 21 yrs of Os death whether all his children will have
graduated from college by 30.
(b) L.e. in A, contingent remainder in f.s.a. in B, reversion in f.s.s.e.i. in O
(4) E.g. To the UC, but if the ppty isnt used as a sculpture garden, then I, my heirs, or
assigns may retake the pptynot subject to RAP b/c its a right of reverter
v) Variations of the doctrine
(1) Wait-and-see doctrine: validity of interest judged by actual events that happen
(2) Cy pres doctrine: invalid interest is reformed within the limits of the RAP to approximate
most closely the intention of the grantor
vi) Jee v. AudleyDs will said I give the said 1000 to Mary and the issue of her body lawfully
begotten, and to be begotten, and in default of such issue I give the said 1000 to be equally
divided between the daughters then living of John Jee and Elizabeth Jee. The last class
violates the RAP b/c you dont know within 21 yrs of a life in being which daughters will be
living when Marys bloodline runs out (b/c Jees could have more daughters) and you dont
know within 21 yrs of a life in being whether Marys bloodline will run out (could happen
centuries later).
vii) Options
(1) An option is void if its possible to exercise it more than 21 yrs after some life in being at
its creation
(2) Preemptive options (rights of first refusal) are not subject to the RAP
(3) Difference in treatment is due to incentivesoptions give owner no incentive to improve
b/c ppty can be taken away at any time, whereas rights of first refusal are exercised only
when owner wants to sell
(4) E.g. To the UC, but if the ppty isnt used as a sculpture garden, then I, my heirs, or
assigns may retake the ppty upon payment of $100ksubject to RAP b/c its an option.
Violates RAP b/c no time limit.
(5) Symphony Space v. Pergola Propertiesoption invalid b/c closing date was 24 yrs from
formation of k (>21 yrs). Court refused to make commercial options exempt from the
RAP and refused to adopt the wait-and-see approach.
8) Concurrent ownership and marital rights
a) 3 types, in ascending order of protection [from being sold out by other person]
i) Tenancy in common
(1) No right of survivorshipwhen one tenant dies, her share passes to her heirs
(2) Unequal shares
(3) Conveyance or devise to 2 or more people (who arent H & W) presumption of
tenancy in common. Presumption can be overcome by evidence that a joint tenancy was
intended.
(4) Heirs always take as tenants in common
ii) Joint tenancy
(1) 4 unities required (otherwise tenancy in common)
(a) Timevest at same time
(i) E.g. to A for life, then to the heirs of A and the heirs of B as joint tenants. As
heirs & Bs heirs take as tenants in common b/c they are ascertained at different
times (As death & Bs death)
(b) Titlesame instrument or joint APs

Property outline
(i) E.g. H conveys to H and W as joint tenants
1. Common law says this violates the unities of time & title b/c you cant
directly self conveyrequires a straw. Viewed as a conveyance of a
interest by H to W tenants in common
2. Recent courts says this doesnt violate unities of time & title b/c H is
conveying to a different entity (H & W)
(c) Interestidentical interests
(i) E.g. to A and his heirs, and to B for life, A & B to hold as joint tenants. A
& B would hold as tenants in common b/c there is no unity of interest.
(ii) Equal shares
1. Common law is that if you put in 2/3 $ & partner put in 1/3 $, youd be
giving gift to the other person such that when theres a cash out, its 50-50.
2. Some jurisdictions say that if you can show that you paid a certain
percentage, you can cash out that percentage
(d) Possessionequal right to possess.
(i) After the joint tenancy is created, the joint tenants can agree that 1 joint tenant
has the exclusive right to possession (this doesnt break the unity of possession)
(2) Right of survivorshipwhen one tenant dies, survivor takes all (share does not pass to
heirs).
(3) Can be created by deed, will, or joint adverse possession
(4) Severance
(a) Conveyance by joint tenantsevers the joint tenancy between new tenant and the
other tenants (the other tenants are still joint tenants with respect to each other)
(i) E.g. A, B, & C have joint tenancy and A conveys interest to D. There is no
longer a joint tenancy between D and B & C, but there is still a joint tenancy
between B and C.
(ii) Conveyance to self. 2 approaches:
1. Common law requires a straw (intermediary who conveys the interest back
to the tenant)
2. Recent courts have permitted direct self conveyance to sever the joint
tenancy w/o a straw
a. Riddle v. HarmonW conveyed land to herself in order to terminate
joint tenancy w/H. Court held that this was valid way to sever joint
tenancystraw no longer required. Said that if an indestructible right
of survivorship was desired, they couldve created:
i. Joint life estate w/contingent remainder in fee to survivor: to A &
B jointly for their lives, then to the survivor of A & B in fee
simple
ii. Tenancy in common in fee simple w/an executory interest in
survivor: to A & B as tenants in common, but if one predeceases
the other, then the survivor gets the fee simple absolute.
iii. Fee simple to take effect in possession in the future: to my longest
lived child, A or B, whoever survives.
(b) Partition proceedings
(c) Involuntary alienation under an execution (mortgage by joint tenant). 2 approaches:
(i) Title theory jurisdictionsmortgage involves a transfer of title from the debtor
to the debtee, which severs the joint tenancy
(ii) Lien theory jurisdictionsmortgage involves a lien (instead of a transfer of
title) no severance of the joint tenancy
1. If the debtor tenant dies before paying off the mortgage . . .
a. Some jurisdictions hold that the survivor takes the debtors share
subject to the debt
b. Some jurisdictions hold that the survivor takes the debtors share not
subject to the debt
i. Harms v. SpragueP & brother had joint tenancy in ppty. Brother
used his interest to secure a mortgage and died w/o paying it off.

Property outline
Court held that brothers mortgage did not sever the joint tenancy,
and that when he died, P took f.s.a. (everything) not subject to the
debt.
(d) Lease by joint tenant
(i) Most jurisdictions say that there is no severance of the joint tenancy unless
lessor tenant clearly intended to sever
(ii) The lease is for the length of the lease term or until the lessor tenant dies,
whichever is sooner (b/c lessor tenant only has right of possessory interest until
death)
(e) Agreement among joint tenants
(i) Agreement to hold as tenants in common severs the joint tenancy
(ii) Divorce agreement or intent to divorce
1. Property settlement agreement can sever a joint tenancy if the parties so
intend (divorce does not automatically terminate a joint tenancy)
2. If one of the spouses dies before the divorce, court might . . .
a. Enforce dead spouses intent to sever the joint tenancy OR
b. Let surviving spouse take possession of the entire ppty but give cashed
out value to dead spouses heirs when the surviving spouse sells the
ppty OR
c. Not enforce dead spouses intent b/c she couldve changed her mind
(5) Preferred granting language
(a) As joint tenants and not as tenants in common
(b) As joint tenants with rights in survivorship
(6) Joint tenancy bank accounts
(a) True joint tenancy account (default rule/presumption)
(i) Each party has full rights to withdraw 50% of whats there, regardless of the
source of funds
(ii) Right of survivorship
(b) Payable on death account (to avoid taxes on death)
(i) Depositor intends that the other party has no right to withdraw $ until depositor
dies
(ii) Right of survivorship
(c) Convenience account
(i) One person given authority to draw out $ just for the benefit of the other person
(ii) No right of survivorship
(iii) E.g. sick or aging depositor needs someone else to pay the bills
iii) Tenancy by entirety (if state allows)
(1) Exists only between married couples
(2) 4 unities + unity of marriage required
(3) Right of survivorshipwhen one spouse dies, survivor takes all (share does not pass to
heirs)
(4) Tenancy by entirety cannot be severed w/o the consent of both spouses
(5) Conveyance to H & W is presumed to be a tenancy by entirety
(6) Creditorsif its alienable, its reachable.
(a) 2 approaches:
(i) Creditors of one spouse cant reach the ppty b/c neither spouse acting alone can
transfer his or her interest
1. Sawada v. EndoH got in car accident and tort victims wanted to recover
damages by reaching his interest. Court held that neither spouse acting
alone could transfer is interest, so victims couldnt reach Hs interest.
(ii) Creditors of one spouse can reach that spouses interest in the ppty b/c W has the
same rights to alienate as H
1. US v. 1500 Lincoln Ave.H used pharmacy owned as tenancy by entirety
for illegal distribution of drugs. W had valid innocent owner defense.
Court allowed govt to step into Hs shoesif W predeceases H, govt

Property outline
gets the entire ppty instead of H. W gets full & exclusive use of ppty during
her life.
2. Contra US v. LeeCourt distinguished 1500 Lincoln Ave. by saying ppty
wasnt the site of the criminal activity and innocent spouse therefore
deserved more protection
(b) Spendthrift trustscreditors cant reach the $ as long as its in the trust. Can only
reach $ when it gets paid out. Similar to tenancies by entirety b/c protects assets in
same way for nonwealthy people
b) Partitioning (joint tenants and tenants in common only)
i) Each owner owns a certain percentage of all of the property
ii) Partitioning occurs only when the owners cant get along
iii) 2 types:
(1) Partition in kind (presumptive preference)
(a) If the separate tracts are not equal in value, the court will require a tenant to pay an
owelty to the other to equalize values
(b) Delfino v. VealencisPs wanted to develop ppty and D didnt want to (D lived there
& operated a rubbish business). Court ordered the ppty to be partitioned in kind,
probably b/c D lived there (didnt want to force her out of her home). D had to pay
Ps an owelty b/c she was devaluing their portion of the land w/her rubbish business.
(2) Partition by sale (usual outcome)
iv) Agreement not to partition is valid if its for reasonable purpose & for reasonable length of
time
v) Some states say you cant partition if the ppty is a home for as long as its a home
c) Ouster/exclusive possession (all 3 types)
i) An ouster is when a person 1) claims an adverse possessory right to some ppty that she coowns or 2) creates a demand for rent to be paid by occupying it. Starts the S/L running for
adverse possession or liability for rent.
(1) Adverse possession ( possessing tenant can quiet title)
(a) Some jurisdictions dont allow AP against a co-owner b/c its like landlord-tenant
lawtheres no hostility
(b) For those jurisdictions that do allow AP against a co-owner, must give clear and
unequivocal notice of repudiation of the common title. If youre the co-owner who
might be being adversely possessed against, you should put a lot in writing to so that
ambiguity cant be exploited by the other co-owner.
(i) Changing locks probably isnt enough b/c thats consistent w/ownership. Could
argue that you should know whether the locks on your house have been changed
shouldve paid attn.
(ii) Renting the ppty to a 3rd party could be considered notice co-owner tenant is
allowed to keep all the rent. If you dont want the rent, you should write a letter
so stating to show that you were paying attn.
(2) Demand for rent ( possessing tenant must pay reasonable rental value)
(a) Possessing tenant not required to pay reasonable rental value unless there is an ouster
(b) Spiller v. Mackereth (tenants in common)3rd party lessee moved out and D coowner moved in. P co-owner wrote letter demanding that D either vacate the bldg
or pay the rental value. Court held that D didnt have to pay b/c there was no
ousterDs refusing to vacate and changing locks did not constitute ouster b/c D had
a right to occupy. P shouldve attempted to co-occupy. Any act, aside from denial of
access to co-occupancy, was consistent with his rights of ownership.
(c) Swartzbaugh v. Sampson (joint tenants)W sued to cancel 2 leases that H co-owner
made over her objections. Court held that the leases were valid and that lessee was
given the same right to possession of the leased ppty that H had. Ws permission
isnt required for H to lease out his ppty interest. So H & W own the lease as tenants
in common and the f.s.a. as joint tenants.
d) Accounting for rents received (not FMV) from possessory tenant (all 3 types). Possessory tenant
might be able to set off the following amounts:

Property outline
i)

Carrying expensesif a cotenant is 100% occupying the ppty, he has no right to contribution
from the nonpossessory cotenant (only has right if occupancy is less than 100%). Backdoor
way of forcing possessory tenant to pay rent.
ii) Repairspossessory tenant usually cant get contribution from nonpossessory tenant for
repairs unless . . .
(1) Repair goes to the integrity of the structure
(2) Repair is done right before they sell the ppty (full value of the repair extends into the
future & the sale price fully captures increase in value to the ppty)
iii) Improvementspossessory tenant can only get contribution from nonpossessory tenant for
improvements that actually add value to the ppty.
9) Landlord and tenant
a) 4 types of leases
i) Tenancy for yearsfixed period with beginning & ending dates (can be less than a year).
(1) No notice of termination required b/c ending date is the notice.
(2) Tenancy of no fixed period terminable on some event = tenancy of years
(a) E.g. To A, until I get back from the war (war ends at some point)
(b) E.g. To A, until the stock mkt recovers (assuming you have definite index of stock
market recovery)
ii) Periodic tenancyperiod to period until notice of termination given by either LL or T
(1) If no notice of termination is given, the tenancy is automatically extended for another
period
(a) 6 months notice is required for year to year leases
(b) 1 periods notice is required for all other periodic leases
iii) Tenancy at willno stated duration, continues until LL or T desires an end
(1) If a lease states that T has privilege of termination at her choice, the lease creates a
determinable life estate (T can stay until death or until he chooses to leave)
(a) Garnerlease said that T had privilege of termination at his choice, but contained
no language expressing a reciprocal right in LL. Court held that this created a
determinable life tenancy, not a tenancy at will.
(2) If a lease states that LL has privilege of termination at her choice, however, courts read
into silence of the document a reciprocal right in T, which creates a tenancy at will. Rule
is asymmetrical b/c LL has greater bargaining power.
iv) Holdover tenancy or tenancy at sufferancetenant remains after the end of the tenancy
(1) Default rule: tenancy becomes a tenancy at will subject to the provisions of the old lease
(2) Remedies available to LL
(a) Sue for damages
(b) Evict
(c) Extend lease
(i) Under common law, LL cant hold T to double rent
(ii) Statutory overlays have allowed double rent. However, this harsh rule has
resulted in exceptions for de minimus situations where moving is nearly
impossible and beyond Ts control (e.g. T is extremely ill and cant physically
leave the premises)
b) Breach of k
i) Mutually dependent covenantsif one party breaches, the other party is excused from
performing
ii) Independent dutiesif one party breaches, the other party can sue for damages but is not
excused from performing
c) If the ppty burns down, modern law says that LL still responsible for providing T w/a place as
long as the fire wasnt the tenants fault
d) Landlords duties
i) To deliver possession at the beginning of the lease
(1) English rule (majority view): LL is responsible for getting T1 out
(a) LL has duty to deliver actual possession as well as the right to possession
(2) American rule (minority view): T2 is responsible for getting T1 out

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Property outline

e)

(a) LL has no duty to deliver actual possession; only has duty to deliver right to
possession
(b) Hannan v. Duschlease did not contain an explicit covenant to provide actual
possession, and T1 was holding over. Court chose to follow the American rule.
ii) Covenant of quiet enjoyment (commercial & residential leases)
(1) T has a right of quiet enjoyment of the premises without interference by LL. This is
implied in every lease and is a dependent covenant (T can refuse to pay rent if LL
breaches this duty)
(2) Actual eviction (physical eviction from entire leased premises) total rent abatement
(a) Partial actual eviction (physical eviction from any portion of the leased premises by
LL) T can stay in possession & get total rent abatement
(3) Constructive eviction (substantial interference w/Ts use & enjoyment of the premises)
T must vacate to get total rent abatement (Restatement says T can stay & still get total
rent abatement)
(a) Partial constructive eviction T must vacate to get partial rent abatement
(b) Declaratory judgmentsnew development in law that T can stay in possession &
bring an equitable action for a declaratory judgment that LLs actions constitute a
constructive eviction. This protects T from taking the risk of vacating & not being
awarded damages.
(c) Illegal lease LL is under tort duty to disclose existing statutory heath violations at
the time the lease was entered into. T can withhold rent and becomes a tenant at
sufferance. If T knew about the violations, T has waived that interference.
(d) Notice to LLT must give notice to LL of the objectionable conduct & give LL
reasonable time to remedy the situation
(e) LLs can be responsible for other Ts acts if the LL has the legal ability to correct the
conditions and fails to do so
(f) LL can sue T if other Ts are complaining about Ts actions and such actions
substantially interfere w/quiet enjoyment (like noise)
(g) Reste Realty Corp. v. CooperLL didnt fix driveway to prevent basement flooding
after repeated requests by T. Basement was frequently flooded w/2 inches of water,
and when it reached 5 after one rainstorm, T sent a notice of vacation and left. Court
held that this constituted a constructive eviction and that T properly vacated the
premises T not liable for rent.
iii) Implied warranty of habitability (residential leases only)
(1) Recent courts have been holding that there is an implied covenant of habitability, and that
this is a dependent covenant (T can refuse to pay if LL breaches this duty)
(2) Notice to LLT must give notice to L of the objectionable conduct & give LL
reasonable time to remedy the situation
(3) Most jurisdictions say that retaliatory evictions are not allowed if T complains about
problems
(4) LL can sue T if other Ts are complaining about Ts actions and such actions relate to
health & safety
(5) Hilder v. St. Peter# of things wrong w/apartment (broken window, clogged toilet, raw
sewage in basement, decaying ceiling) that LL promised to fix but didnt. Court held that
LL was a slumlord and that hed breached the implied warranty of habitability.
Damages were the difference between the value of the premises as warranted and value
of the premises as defective.
Discrimination
i) Civil Rights Act prohibits racial discrimination in the sale or rental of all ppty (housing and
commercial)
ii) Federal Fair Housing Act (applies to sales, rentals, ads, and public statements of housing)
(1) LL cant discriminate on bases of race, color, religion, sex, handicap, familial status, or
national origin
(a) Sexsexual harassment is considered discrimination based on sex
(b) Handicap

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f)

(i) A handicap is an impairment which substantially limits a persons major life

activities. The ADA allows a disability to be certified by a doctor.
(ii) LL must make reasonable accommodations for handicapped tenants. LL can ask
that T incur the cost of removing the medication.
(c) Familial status
(i) If LL limits occupancy, this is viewed with suspicion by the HUD b/c this is
often a pretextual device to keep children out
(ii) This historically has not been interpreted to include marital status
(2) Exceptions
(a) Mrs. Murphy exception: a person is exempt from the FHA if she is offering to lease a
room or an apartment in her building of four units or less, one unit of which she
occupies, and she does not advertise in a discriminatory manner.
(i) However, if she refuses to rent or sell on the basis of race, she has violated the
Civil Rights Act
(b) Senior citizens homes are exempt from familial status provisions
(3) LL cant use status as a proxy for something else.
(a) Always wonder if discrimination against a non-protected class is just a proxy for a
protected class (e.g. marital status race; homosexuality disability). If so, its a
violation of the FHA
(4) Either discriminatory intent or discriminatory effect violate the act
(5) To prove a violation:
(a) P must establish a prima facie case
(i) Member of statutorily protected class
(ii) Applied for & was qualified to rent the designated dwelling
(iii) Denied the opportunity to inspect or rent the dwelling
(iv) Housing opportunity remained available for others
(b) D must assert legitimate consideration having nothing to do w/the above
classifications
(c) P must show that Ds reason was pretextual
(6) Soules v. U.S. Dept of HUDD realtor asked P apartment seeker How old is your
child?, which got P angry and caused D to stop volunteering information about the apt.
P established a prima facie case and D asserted that her reason for refusing to rent to P
was due to Ps negative & combative attitude, and that she asked P about her childs age
b/c she didnt want to rent to noisy children. Court held that Ds reason was not
pretextual b/c of testimony that D was willing to rent to a family with children who
werent noisy. D allowed to discriminate on basis of noisinessjust cant use children as
a proxy.
Substitutions
i) AssignmentT2 obligated to pay rent to LL. Privity of estate between LL & T2.
(1) Privity of estate between LL & T2 and privity of k between LL & T1 LL can sue T1
and T2
(2) If T2 assumes the obligations of the head lease, there is privity of k between LL & T2.
(3) Novationk between LL & T2, where LL agrees to the assignment to T2 and releases T.
In exchange for the release, T2 undertakes the promises in the lease. Privity of k and
privity of estate between LL and T2.
(4) Rule in Dumpors case: once LL gives permission to assignment 1, she gives permission
for subsequent assignments unless she expressly reserves the right to prohibit future
assignments
ii) SubleaseT2 obligated to pay rent to T1. Privity of k between T1 & T2.
(1) No privity of estate or privity of k between sublessee & LL LL cant sue T2, only T1
(2) LL may still be able to argue that sublessee is liable to him as a 3rd party beneficiary
iii) Privity
(1) Privity of estate (LL-T relationship)gives parties the right to sue each other for
covenants on the lease. Lifts when assignee leaves (whoever is currently occupying the
premises is in privity of estate w/LL)

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Property outline
(2) Privity of k (k relationship)gives parties the right to sue each other for promises
iv) How do you tell the difference between a sublease & an assignment?
(1) Common law
(a) If the entire remaining term of the leasehold is transferred, its an assignment
(b) If the entire remaining term isnt transferred, its a sublease
(2) Reversion retained. Common law said that:
(a) If T1 retains a reversion in the ppty after the transfer, its a sublease
(b) If T1 doesnt retain a reversion in the ppty after the transfer, its an assignment
(3) Right of entry retained
(a) Common law: If T1 retains a right of reentry after the transfer, its an assignment
(b) Modern law: If T1 retains a right of reentry after the transfer, its a sublease
(4) Minority viewintention controls
(a) Ernst v. CondittP leased ppty to T, who substituted himself for D and agreed to be
personally liable for the original lease. D stopped paying rent. Court held that Ts
agreement to be personally liable for the rent and expense of the removal of
improvements made was not an implicit right of reentry b/c even if he hadnt
promised to do so, hed still be liable for the rent (no novation). Court held that this
was an assignment b/c the intention of the parties seemed to be that this was an
assignment (despite the use of the word sublet several times).
g) LLs denial of consent to substitute and damages
i) Express provision requiring LLs consent is for the protection of the LL in its ownership and
operation of the particular pptynot for its general economic protection.
ii) LLs denial of consent to substitute (2 approaches):
(1) Can be arbitrary (majority view)
(2) Must be reasonable (minority view)
(a) Kendall v. Ernest Pestana, Inc.lease contained provision requiring consent of LL
before T sublets or assigns the premises, but was silent as to rights of LL to
arbitrarily refuse. LL refused to allow T to assign his lease to T2. Court held that the
policy against restraints on alienation and the implied k duty of good faith & fair
dealing militated in favor of adoption of a rule that consent may be withheld only
where the lessor has a commercially reasonable objection to the assignee or the
proposed use.
iii) Duty to mitigate (2 approaches):
(1) Old rule: no duty to mitigate
(2) Modern trend: duty to mitigate
(a) Sommer v. KridelT told LL that he could not pay for the apt and asked to be
released from the 2-yr lease. LL did not answer the letter and refused to exhibit the
apt to anyone else until over a yr later, when he finally rented it to a new tenant.
Court imposed a duty to mitigate and found that 1) LLs silence was an acceptance of
Ts offer to release, and 2) LL needlessly increased damages by turning away a
willing and suitable substitute tenant.
iv) Anticipatory repudiation
(1) 2 approaches:
(a) Common law: LL must wait until lease runs out to sue for back rent
(b) Some states: anticipatory damages allowed when T makes clear hell pay no further
rent
(2) Rent acceleration clause: provides that rent for balance of term shall become payable in
full on the tenants default of payment of rent or some other obligation
v) Acceptance of offer to surrender
(1) Jurisdictions vary about implications of LLs silence
(a) Sommercourt found that LLs silence was an acceptance
(2) Jurisdictions vary about implications of LLs reentry into apartment (is it an acceptance,
or is he merely assessing the situation?)
vi) Self-help
(1) 3 approaches:
(a) Reasonable force permitted

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Property outline
(b) Peaceable entry permitted
(c) Self-help not permitted
(i) Berg v. WileyT violated provisions of the lease by failing to operate her
restaurant in a lawful & prudent manner (health code violations). 2 weeks later,
T closed the business & put a closed for remodeling sign out. Lease also
provided that LL reserved right to retake possession of the premises should T
fail to meet conditions of the lease. LL entered the premises in Ts absence and
changed the locks. Court held that the only lawful means to dispossess T who
had not abandoned nor voluntarily surrendered but who claimed possession
adversely to a LLs claim of breach of a written lease was by resort to judicial
process.
(2) Most courts hold lease provisions authorizing self-help to be valid
(a) Contra Berg v. Wiley
h) Distinguish from licensesno right of possession; only limited usage rights.
i) The more responsibility the owner takes on, the more it looks like LL-T relationship
ii) If owner promises to engage in certain amount of upkeep of facility in return for $, looks
more like a lease.
10) Recording acts
a) Exceptions to the common law rule of first in time
b) 3 types of recording acts (**remember, these dont apply to donees)
i) Race recording actwhoever records first wins. Notice is irrelevant. [First in time wins
unless subsequent purchaser records first]
ii) Notice actsubsequent purchaser wins if he had no actual or constructive notice of a prior
claim at the time of conveyance. This is true whether he recorded or not. [First in time wins
unless theres subsequent purchaser w/o notice]
iii) Race-notice actsubsequent purchaser wins if he had no actual or constructive notice of a
prior claim at the time of conveyance AND recorded before the prior grantee. [First in time
wins unless subsequent purchaser w/o notice records first]
c) 3 types of notice
i) Actual noticesubsequent grantee actually knew of prior conveyance
ii) Constructive noticesubsequent grantee should have known of prior conveyance (b/c it was
recorded, he shouldve checked multiple spellings, he shouldve asked, etc.)
(1) Inquiry noticesubsequent grantee should have known of prior conveyance b/c he
shouldve made reasonable inquiries
(a) Harper v. ParadiseO conveyed l.e. to P and remainder in Ps named children. This
deed got lost. Os heirs then conveyed to P whatever interest they had as
replacement for the lost deed, so P thought she had a f.s.a. P then gave ET title to
land as security for loan and failed to make payments ET foreclosed & recorded
the deed. ET conveyed the ppty to D. Lost deed was found. Court held that ET was
on inquiry notice & shouldve asked P about contents of lost deed (b/c deed from Os
heirs to P mentioned it), even though P probably didnt know the contents of the lost
deed. The Ds have been adversely possessing the ppty and can tack on to ET, but
theyre only adversely possessing against a l.e.clock starts running again when P
dies.
(b) WaldorffO conveyed unit to P, who moved in. O then took out mortgage w/D,
using Ps unit & others as security. Court held that D was put on inquiry notice
shouldve gone out to the units & inquiredthen they wouldve had actual notice of
Ps occupancy. Since P is first in time and Ds not BFP, W gets the unit.
d) 2 types of indexes
i) Grantor-grantee index: go through grantee index as far back as jurisdiction requires, then go
through grantor index
ii) Tract index: still have to look through grantor-grantee indexes to make sure there are no liens
on land that the grantor doesnt yet have
e) Bona fide purchaser (BFP)didnt have notice & paid valuable consideration
f) Shelter rulea person who takes from a BFP will prevail over any interest over which the BFP
wouldve prevailed, even if the person has actual knowledge of the prior unrecorded interest

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Property outline
g) What constitutes recordation
i) Improper indexing by clerkcourts split as to whether this constitutes constructive notice
(whether index is part of the record; if it is, there is no constructive notice)
ii) Indexing under misspelled name
(1) Modern law is that this doesnt constitute constructive notice
(a) Orr v. BeyersP had judgment lien against O. Ps attorney erroneously spelled Os
name, and it was recorded under 2 misspelled names. O then sold the ppty to D.
Court held that D wasnt under a duty to look under every possible spelling (undue
burden).
(2) Old doctrine of idem sonans said that if the name as written substantially sounds the same
as the pronunciation of the correct name, it refers to the correct person constitutes
constructive notice
h) Defective acknowledgmentcourts are split as to whether defective acknowledgments are records
(and thus constitute constructive notice)
i) Messersmith v. Smith (race-notice jurisdiction)O conveyed ppty (quitclaim deed) to P, who
didnt record. O later conveyed a mineral lease & the deed to the ppty to D. This was a
defective acknowledgment b/c O didnt personally appear before a notary. D recorded the
deed and sold to Seale, who also recorded. Thereafter, P recorded. Court held that A
prevailed b/c although Seale recorded first, his title was derivative of Ds, who never actually
recorded b/c his acknowledgment was defective.
i) Chain of title problems
i) Wild deedsrecorded deed to the ppty which is not recorded within the chain of title.
Generally excluded b/c you dont expect grantee to know marital status or previous marital
status of everyone whos been involved in the transaction. E.g. Elizabeth Taylor Fisher deed.
ii) Grantor not connected to chain of titleif a deed entered on the records has a grantor
unconnected to the chain of title, such a deed is not recorded within the chain and does not
give constructive notice
(1) Board of Education v. Hughes (race-notice jurisdiction)O gave blank deed to D, who
gave $ in return. O then conveyed quitclaim deed to for $ real estate dealers, who didnt
record. Real estate dealers conveyed ppty to P, who recorded. D then filled his name in
the blank lease & recorded. Real estate dealers then recorded. Court held that D was the
subsequent purchaser, and since he didnt have notice & recorded first, he prevailed.
Fight was over who was subsequent purchaser (D b/c he didnt fill in his name until after
real estate dealers got land, or real estate dealers b/c D got blank deed & paid before real
estate dealers got land?). D didnt have notice of Ps conveyance b/c had no notice of
conveyance to real estate developers.
iii) Deeds from common grantor of adjacent lots
(1) Guillette v. Daly Dry WallO sold lots w/restrictions on them (only allowed singlefamily dwellings). 2 of these deeds contained a provision restricting lots retained by O.
However, he sold a lot to D w/o the restriction. D was charged w/reading all deeds out
from O, not just the deeds for his particular lot. Court therefore held that D had
constructive notice & was bound by the restriction b/c, in dealing w/ a planned
subdivision, one should know that there will be reciprocal restrictions.
j) Mother Hubbard clause
i) Provision in a deed that attempts to sweep within it other parcels not specifically described
ii) Generally not valid against subsequent purchasers unless they have actual knowledge
iii) Luthi v. EvansO conveyed ppty to D, who recorded it + a Mother Hubbard clause. O then
conveyed to P some ppty that was included in the Mother Hubbard clause. Court held that the
Mother Hubbard clauses were valid, but ineffective against subsequent purchasers and
mortgagees unless they have actual knowledge of the transfer. Since P didnt have actual
knowledge of the clause, the later assignment to P prevailed over the assignment from O to D.
k) Quitclaim deedgrantor isnt sure what she has, but whatever she has, shes giving it to the
grantee (no warranty that grantor can verify & insure that she owns the ppty). This can make a
court suspicious that somewhere along the line, theres a problem w/title or ownershipgrantee
might be held to higher standard of research & notice.
l) Installment planswhen do you become a purchaser?

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Property outline
i)

Daniels v. AndersonO gave right of first refusal to P, who did not record. O then sold ppty
to D, who had no notice of Ps right of first refusal. D made $40k in payments (out of $60
purchase price) before being notified of Ps right of first refusal. D paid off the remaining
$20k after that. Court held that P got ppty b/c he had notice before becoming purchaser (upon
final payment). Court had P pay D for purchase price + taxes paid.
ii) Lewis v. Superior Courtlis pendens (notice of lawsuit affecting title) filed by D a few days
before Ps acquired title. However, the lis pendens wasnt recorded it was indexed, which was
after Ps acquired title. Ps finished paying off the purchase price and were subsequently given
notice of the lis pendens. Court held that Ps were BFPsdistinguished from Davis, saying
that 1) Ps didnt have actual noticeonly constructive notice, and 2) Ps shouldnt be
penalized for paying purchase price off quickly.
iii) Alexander v. AndrewsFather conveyed his interest in ppty to daughter. Then he conveyed
same interest to son, who had no notice of prior conveyance and recorded. Son paid father
$1k & promised to take care of him. Daughter then recorded. Court held that son was a
protected BFP only to the extent of the $1k paid before daughter recorded her deed b/c
daughters recording gave constructive notice to son of her prior claim.
11) Nuisance
a) Interference that is substantial & unreasonable w/use of ones ppty
b) Types of nuisance
i) Nuisance per seviolation of zoning laws
ii) Intentional nuisanceliable if unreasonable under the circumstances of the particular case.
This includes intentional psychic harm and purely spiteful harm.
(1) Morgan v. High Penn Oil Co.Ps restaurant was there before D oil company came
along. Court held that D intentionally and unreasonably caused noxious gases & odors to
escape onto Ps land to such a degree as to impair in a substantial manner Ps use &
enjoyment of their land.
(2) EstanciasPs were being bother by Ds air conditioner. D argued that it shouldnt have
to take down A/C b/c it would cost $150k whereas it only lowered Ps ppty value by
$12.5k. Court held that theres no housing shortageDs apartments dont give enough
social utility to outweigh respect for individual ppty owners right to live in peace &
quiet. Court awarded P injunction.
(3) Boomer v. Atlantic CementDs cement plant emitted dirt, smoke, and vibration to
neighboring Ps. Court denied injunction b/c technology was such that D could make this
any cleanerconfuses this w/unintentional nuisance. Court instead awarded damages
imposing a servitude on Ps land. Dissent argued that this was licensing a continuing
wrong.
(4) Spur v. Del E. WebbD cattle feedlot was there first, and Ps development expanded to
move closer to it. Court held this was public nuisance and issued injunction to P, but
made P compensate D b/c P came to the nuisance.
iii) Unintentional nuisanceliable if negligent, reckless, or ultrahazardous
c) Cost-benefit considerations
i) Foresight
ii) Ability to reduce injury
iii) Value to society
d) Factors to finding substantial interference
i) **Reciprocity
ii) Sickness
iii) Time involved
iv) Regularity
v) Business plummeting
vi) Whether gravity of harm outweighs utility of activity
vii) Whether D can pay for it
e) Upon finding of a substantial interference:
i) Injunction
ii) Further balancing liability vs. no liability
f) Approaches to determining liability

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Property outline
i) Balancing test
ii) Threshold test (see if theres substantial harm; if so, do balancing test to deal w/damages)
g) Remedies (4 possibilities)
i) P wins injunction
ii) P wins injunction, but has to compensate D
iii) P gets damages
iv) P loses
12) Servitudes on landencumbrance on land
a) Easementsright to enter anothers land (interest in land)
i) 2 types of easements
(1) Affirmative easementsdominant tenement owner has right to go onto the servient
tenement & do some act on it
(2) Negative easementsdominant tenement owner can prevent servient tenement owner
from doing some act on the servient tenement
(a) Can only be of the following nature:
(i) Cant block window
(ii) Cant block artificial stream of water
(iii) Cant remove support of neighbors house
(iv) Cant interfere w/air flowing through defined channel to neighbors property
(v) Cant block view
(vi) Solar easements
(vii)Conservation easements
ii) Easements appurtenant or in gross
(1) Old distinction:
(a) Easement appurtenanteasement attached to the land assignable
(b) Easement in grosseasement is personal to beneficiary not assignable
(2) Modern distinction:
(a) Easement appurtenant & commercial easement in gross assignable
(b) Personal easement in gross not assignable
(3) Restatement 3d: no distinctionparties intent governs
iii) Terminology
(1) Servient tenementland burdened by the easement created
(2) Dominant tenementland benefited by the easement created
iv) Creation of an easement
(1) Reservation in easement
(a) Common law said that reservation could only be in grantor. Thus, to convey land
subject to an easement, grantor had to do 2-step process:
(i) Convey easement to 3rd party (e.g. church)
(ii) Convey ppty (f.s.a encumbered w/easement) to grantee
(b) Minority view is that reservation can be in 3rd party
(i) Willard v. First Church of Christ, ScientistPs purchased property that a former
owner had conveyed subject to an easement for automobile parking during
church hours. Ps' deed did not mention the easement. The court held that a
grantor may, in deeding real ppty to one person, reserve an interest in the ppty to
another.
(2) Easements fall within the S/F and therefore have to be in writing. 3 EXCEPTIONS to the
S/F:
(a) Estoppel
(i) Owner of would-be servient tenement permits or encourages someone through
an act/statement to rely on representation that its ok to do what shes doing &
that he wont assert his legal rights. Person does rely & is severely harmed if
owner of would-be servient tenement decides to assert his legal rights. Justice
demands that servient estate be bound
(ii) Holbrook v. TaylorDs built a residence on ppty adjoining the Ps property.
With the permission of Ps, Ds used and maintained an access road owned by Ps
during the period of home construction. After the construction, Ds continued to

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use the roadway to access the public highway. Court found that there was no
prescriptive easement b/c the use was open & w/permission. However, the court
held that the right to the use of the roadway had been established by estoppel
and that it could not be revokedPs caused Ds to rely. No writing required b/c
exception to S/F.
(b) Implicationcreated by operation of law
(i) Prior usecreated by apparent use existing at the time the servient tenement
was separated from the dominant tenement
1. Quasi-easementquasi b/c O cant have easement on own land (would
resemble easement if O divides land into 2 lots)
a. Van Sandt v. RoysterD knew that his house was connected to a sewer
when he purchased it but was unaware of the location of a lateral sewer
drain that ran through his property or the fact that the drain had been
constructed 30 years earlier for the use of Ps properties as well as his
own. There was no mention of an easement in any deed. The problem
arose when sewage backed up into his basement. Court held that there
was a quasi-easement b/c D was put on inquiry notice b/c: 1) Ds lot
had running water & toilets and 2) he knew all the pieces of land used
to be one.
(ii) Necessity (landlock)
1. Elements
a. Unity of ownership of the alleged dominant & servient estates
b. Necessity (not mere convenience)
c. Necessity existed at the time of severance of the 2 estates
i. Othen v. RosierP lived on property that required him to cross D's
property in order to gain access to a public road. For several years,
P used a roadway on D's property. D subsequently erected a levee,
which affected the quality of the roadway. P argued that he had an
easement of both necessity and by prescription. Court concluded
that it was not an easement by necessity b/c the record did not
show that the roadway was a necessity as of the date of the deed.
2. Private condemnationif you can show that you were landlocked through
no fault of your own, court can force other party to give you easement for
an amount of $
(c) Prescription (~AP)
(i) Elements
1. Open & notorious use
2. Under a claim of rightcan send letter granting permissive use to counter
this, or put up physical barriers, or sue for trespass or nuisance
3. Continuous use
4. Uninterrupted use (uninterrupted by owner)
(ii) Othen v. RosierCourt held that there was no prescriptive easement b/c 1) the
P's use of the roadway was permissive and nonexclusive and 2) the P failed to
show that his predecessor's adverse possession was in the same place and within
the definite lines claimed by him.
(iii) Public easements
1. Public trust doctrinepublic has the right to use ocean & wet sand
(broadly, all land in the US came w/public interest in not exploiting our
resources)
a. Matthews v. Bay Head Improvement AssnP claimed D was
preventing public from getting to beachfront. D owned the dry sand.
Court held public trust doctrine included bathing, swimming and other
shore activities and that public had right to access D's beaches to
engage in such activities. Furthermore, although D was a private
association, because it was a nonprofit corporation and its activities
paralleled those of a municipality, the court was able to interfere with

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its internal affairs and compel it to open membership to the public at
large.
(3) Profit in grossa profit is the right to take something of another persons land that is part
of the land or a product of the land
(a) One-stock rulewhen 2 or more persons own a profit in gross they must use the
profit as one stock; neither can operate independently of the other. One owner can
veto use by the other b/c consent of all is required. This rule is to prevent
overexploitation of a resource.
(i) Miller v. Lutheran ConferenceP & bros company was given exclusive use of
water and fishing & boating privileges. P granted to his bro a interest in his
fishing, bathing, & boating rights. Bro died & his estate gave his interest to D.
Court held that bro couldnt do that w/o P's permission
v) Scope of an easement
(1) Surcharging the easement (burdening it beyond the original expectation of the parties)
(a) Brown v. VossPs acquired parcel B (which had an easement appurtenant across Ds
parcel A) and parcel C (which did not have an easement across parcel A). Ds wanted
to build single family house on parcels B & C and wanted to use easement across
parcel A to do so. Court declined to extend easement to allow access to parcel C b/c
that would burden or surcharge the easement.
(2) When considering whether an easement should be relocated, theres been a shift toward
looking at the burden to both servient tenement owner and dominant tenement owner
(previously, land was viewed as unique & so a relocations werent usually granted)
(3) Presault v. USRails to Trails legislation by govt. Court held that RR had easement,
not f.s.a, b/c O gave 40-foot strip for a road (limited purpose). The RR abandoned the
easement b/c it pulled up the tracks and left. Alternative holding was that even if
easement wasnt abandoned, switch from RR to trail roads was not a permissible
extension of scopeparties did not contemplate at time of granting of easement that it
would be used for recreational trail purposes.
vi) How to end an easement
(1) Express durational language
(2) Buy it out or agree to terminate it and record it
(3) Merger of servient & dominant land into one ownership (cant have easement on own
land). Whether the easement is reborn when land goes into separate ownership again
depends on whether its necessarynot automatic
(4) Abandonmentmust take clear steps (see Presault case above)
(5) Prescription
(6) Quiet title
(7) Easement by necessity ends when the necessity ends
(8) Easement implied by prior use runs like an express easement (no natural termination
point)
b) Covenantspromises regarding ones own land (not an interest in land)
i) Real covenantsruns w/the land at law
(1) Types
(a) Affirmative promisepromise to do something
(b) Negative promisepromise to not do something
(2) Created by a written document
(3) Elements to run to successors
(a) Common law
(i) Horizontal privity btwn original contracting parties
(ii) Vertical privity btwn predecessors & successors in interest
(iii) Intent for covenant to run to successors in interest
(iv) Notice to successors in interest
(v) Touches & concerns the land
(b) Restatement 1st
(i) Horizontal privity not required for benefit to run, but required for burden to run
(ii) Vertical privity not required for benefit to run, but required for burden to run

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(iii) Intent for covenant to run to successors in interest
(iv) Notice to successors in interest
(v) Touches & concerns the land
(c) Restatement 3d
(i) Horizontal privity not required
(ii) Vertical privity not required for benefit to run. Required for burden to run only
if the covenant is affirmative OR successor is AP, lessee, or life tenant.
(iii) Intent for covenant to run to successors in interest
(iv) Notice to successors
(v) Covenant is valid (cant be illegal or violate public policy). Violates public
policy if:
1. Arbitrary, spiteful, or capricious
2. Unreasonably burdens a fundamental constitutional right
3. Imposes an unreasonable restraint on alienation
4. Imposes an unreasonable restraint on trade or competition
5. Unconscionable
(4) Horizontal privity (4 types):
(a) Landlord-tenant
(b) Developer-purchaser (e.g. k relationship that says therell only be single family
homes sold & retained lots have that same limitation)
(c) Easement coupled w/covenant(E.g. promise to keep trees trimmed on both lots
w/easement to enter for that purpose)
(d) Neighbors (convey both pieces of land to straw that reconveys developersubdivision relationship)
(5) Vertical privity: successor holds same estate for same duration as predecessor
(a) APs dont have vertical privity b/c title not based on old predecessor
(6) Touch & concern land
(7) Remedies
(a) Common law: enforceable only by award of damages
(b) Restatement 3d: $ damages or injunctive relief
(8) E.g. K btwn A & B to not grow jacaranda trees. A leases house to D. B conveys to C, as
long as gardens are maintained. C grows jacaranda trees. Can D sue C?
(a) Common law: Need HP & VP. No HP between A & B (need straw) burden cant
run to C. Might have VP between B & C (depends if B had f.s.d. like C).
(b) Restatement 1st: Want burden to run to C, so need HP & VP. No HP between A & B.
Might have VP between B & C (depends if B had f.s.d. like C).
(c) Restatement 3d: No HP required. Want burden to run to C, and covenant is negative
no VP required burden can run to C.
ii) Equitable servitudes
(1) Creation by written document
(a) Exception: negative servitudes can be implied from a general plan
(i) Sanborn v. McLeanDs erected gas station on ppty. P neighbors claimed that
Ds were subject to reciprocal negative servitude to erect nothing but residences
on their lots. This was not on Ds deeds, and no evidence that Ds actual notice.
Court held that Ds were restricted to carry out the general plan which resulted in
a reciprocal negative easement upon Ds' lot and all lots within its scope. Ds were
bound by inquiry notice b/c he shouldve noticed that the residents were uniform
in character & if hed checked the records, he wouldve found out about this.
(2) Elements to run to successors
(a) Horizontal privity not required
(b) Vertical privity not required for burdens to run; possibly required for burdens to run
(i) Neponsit Ppty Owners AssnNeponsit Realty conveyed by deed several
parcels of land developed by it for NPOA (P). The deeds contained a covenant,
that by its own terms was a lien that ran with land, and bound all subsequent to
an annual fee for the purposes of maintaining the community's public amenities.
P was assigned the interest in a covenant; D obtained land subject to the

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iii)

iv)

v)

vi)

covenant from a judicial sale (from Deyer). Court held that there was VP
between Neponsit Realty & P and that the servitude was enforceable against D.
(c) Intent for servitude to run to successors in interest
(d) Notice to successors in interest
(e) Touch and concern land
(3) Remedies
(a) Common law: enforceable only in equity
(b) Restatement 3d: $ damages or injunctive relief
Touch and concern
(1) Common law/Restatement 1st: If it doesnt touch & concern land, its not valid from the
beginning
(a) CaullettD developer conveyed lot to P and P promised to use D in building a
dwelling. Court held that the provision was of a personal nature (in gross) and
simply an arrangement between the parties designed to insure D a profitthus,
covenant was not valid.
(2) Restatement 3d (as opposed to common law & Restatement 1st) says more things can run
w/land & later terminate them if public policy conflicts
Scope of covenants
(1) Hill v. Community of Damien MolokaiD (community of unrelated people w/ AIDS)
bought group home. Ps claimed that this violated restrictive covenant that the ppty only
be used by single family residents. Court held that b/c the community acted like a family,
it was one for residential purposes. Alternatively held that even if community couldnt be
considered a family, the covenant itself violated the FHA b/c it had a disparate impact on
the disabled.
(2) Shelley v. Kraemer: 3 possible ways to view this case
(a) Anytime court enforces racially restrictive covenant, its state action
(b) Anytime court enforces a restrictive covenant that restricts fundamental
constitutional right, its a state action (Restatement 3d)
(c) Anytime court enforces restrictive covenant, its state action
Termination of covenants
(1) Change of conditions in neighborhood
(a) Strict interpretation of the doctrine is that there has to be change sweeping across all
the lotsmere external change isnt enough
(b) Western LandP developer wanted to make part of the plan commercially, even
though he himself restricted it to residential. Court found substantial evidence that
the restrictive covenants remained of substantial value to D and that the changes in
commercial development and traffic in the area outside the subdivision were not so
great as to make it inequitable or oppressive to restrict the property to single-family
residential use. P failed to show that the subdivision was unsuitable for residential
purposes because of changed conditions or that the purpose of the restrictions had
been thwarted, even if the property was more valuable for commercial purposes.
(c) Rick v. WestP developer wanted to make part of plan commercial, even though he
himself restricted it to residential use. Court held in favor of D, saying there was no
substantial change in circumstances and the restriction afforded real benefit to D.
(2) Abandonment
(a) Easements may be abandoned, but affirmative covenants cant.
(b) Pocono Springs v. MacKenzieDs purchased a vacant lot and attempted to sell it.
They were unable to find any buyers, and believed that the lot was worthless. P
homeowners association billed Ds for association fees. Ds refused to pay such fees
on the grounds that they had effectively abandoned the lot by trying to give it back to
P as a gift, not accepting mail for it, not paying ppty taxes for it, and sending a
signed notarized statement expressing their desire to abandon the lot. Court held that
Ds couldnt abandon a perfect title & were liable for the fees.
(3) Waiverfailure to enforce covenant
Common interest communities
(1) Restrictions in originating documents have strong presumption of validity

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(a) NahrstedtP brought an action to prevent D homeowners' association from
enforcing a restriction against keeping animals in the condominium development.
Court held that statutory law required that the court enforce the covenants,
conditions, and restrictions contained in the recorded declaration of a common
interest development unless unreasonable. Ps allegations were insufficient to show
that the pet restrictions harmful effects substantially outweighed its benefits to the
condominium development as a whole, that it bore no rational relationship to the
purpose or function of the development, or that it violated public policy.
(2) Restrictions subsequently adopted by a board put presumptive privilege on homeowner.
Legislatures now require supermajority votes to change expectations.
13) Public land use controls
a) Zoning
i) Euclidean zoning is the template for zoning in the US
ii) Principle of cumulative usehigher but not lower uses are permitted. Hierarchy of uses:
(1) Single family housing
(2) Two-family housing
(3) Multi-family housing
(4) Commercial uses
(5) Light industrial uses
(6) Heavy industrial uses
iii) If govt is acting to control a nuisance, no just compensation is required (not a taking b/c you
have no right to be a nuisance)
(1) Village of EuclidP asserted that because of the building restrictions imposed, the
ordinance operated to reduce the normal value of his property by > value and therefore
violated due process. Court upheld the restrictions b/c they bore a rational relation to the
health and safety of the community.
b) Takings
i) Govt can take ppty for a public use in exchange for just compensation (just = FMV)
ii) What is public use?
(1) Where the exercise of eminent domain power is rationally related to a conceivable public
purpose, the legislature may take the property
(2) Illusory distinction between prevention of public harm (nuisance no just compensation
due) or conferring a public benefit (taking just compensation due)
(3) Hawaii Housing Authority--D decided that concentrated land ownership was responsible
for skewing the state's residential fee simple market, inflating land prices, and injuring
the public tranquility and welfare. D ordered P landowners to submit to compulsory
arbitration. Court held that D enacted the Act not to benefit a particular class of
individuals but to attack certain perceived evils of concentrated property ownership in
Hawaii, which was a legitimate public purpose, and that condemnation was not an
irrational power to achieve that purpose.
(4) PoletownD city planned to acquire land held by P private owners in order to convey
the land to a private company (GM) for the creation of an industrial site. Court held that
the primary focus of the project was the creation of jobs and the promotion of the public
welfare, and the benefit created for the private corporation was incidentaltherefore, this
was a valid public use for which taking was justified.
iii) 3 categorical rules
(1) Permanent physical occupations are takings per se
(a) LorettoP purchased an apartment building in which the prior owner had allowed D
cable company to install a cable on the building and to furnish cable television
services to the tenants. State statute provided that a landlord must permit a cable
television company to install its cable facilities upon the landlord's property. Court
held that physical occupation of an owner's property authorized by government was a
"taking" of property and explained that to the extent the government permanently
occupied physical property, it effectively destroyed the right of the owner to exclude
or control that portion of her property.
(2) Nuisance controls are per se not takings

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(a) Hadacheck v. SebastianCity ordinance prohibited the operation of brick yards
within the city limits. P owned a brick yard. Court held that even though operation
of a brickyard was not a nuisance per se, it was within the city's police power to
regulate brickyard operation so long as the resulting ordinance was not arbitrary or
discriminatory. Court noted that petitioner was not deprived of the use of the
property's unique soil, ideal for making high-quality bricks, so there was no taking.
What was prohibited was the firing of the bricks at the current location.
(3) Regulatory takings resulting in 100% loss of economic value of property are takings
unless the prohibited uses are common law nuisances
(a) LucasP purchased two residential lots on which he intended to build homes. 2 yrs
later, state enacted the legislation which barred P from erecting any permanent
habitable structures on his two parcels. A state trial court found that this prohibition
rendered the landowner's parcels valueless. Court held that where a state seeks to
sustain a regulation that deprives land of all economically beneficial use, it may
resist compensation only if the prohibited use was a common law nuisance or
violated background ppty law.
(b) Keystone Bituminouscoal companies had to leave pillars of coal behind (support)
under nuisance regulation doctrine. Court rejected conceptual severance & looked at
ownings of coal as a whole instead of ownings of support only. Thus, there was not
a 100% taking Penn Central factors.
(c) Tahoe Sierramoratorium on development on lots around lake so that govt could
study whether the landowners were causing a problem. Court rejected Ps attempt to
follow Lucas & create new categorical rule for regulatory takings resulting in 100%
temporary losses of economic use. Court held that Penn Central factors were more
appropriate and that it would no longer be engaging in conceptual severanceleft it
behind in Keystone Bituminous. Looking at the Penn Central factors, a key fact was
that people who bought land had avg holding time of 25 yrsreasonable investmentbacked expectations werent harmed.
iv) Rules based on measuring & balancing
(1) Temporary physical invasions
(a) Multifactor analysis to see if something goes too far
(i) Conceptual severance (no more)
(ii) Investment-backed expectations
(iii) Reciprocity of benefits
(iv) Diminution in value
(v) Nature of govt action (e.g. Kaiser-Aetna)
(vi) Nature of obligation (affirmative vs. restrictive)
(b) Kaiser-Aetna
(2) Regulatory takings
(a) Multifactor analysis (same as above) to see is something goes too far
(i) Conceptual severance (no more)
(ii) Investment-backed expectations
(iii) Reciprocity of benefits
(iv) Diminution in value
(v) Nature of govt action (e.g. Kaiser-Aetna)
(vi) Nature of obligation (affirmative vs. restrictive)
(b) TDRS confuse the idea of taking & just compensation: can view net effect as no
taking at all, or can view that there is a taking but TDRs are just compensation
(c) Pennsylvania Coal Co.A deed granted Ps the surface rights to certain land but
reserved to D the right to mine all coal under the house. The Kohler Act extinguished
defendant's right to mine under plaintiffs' surface land. Court held that the Kohler
Act was unconstitutional as a taking of D's rights w/o adequate compensation b/c it
made it commercially impracticable to mine coal & had nearly the same effect as the
complete destruction f the mineral rights. Court engaged in conceptual severance
here, looking at just the mining rights as opposed to all the rights as a whole (surface,
support, & mining).

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(d) Penn CentralP was given landmark status, which 1) imposed a duty on it to keep
exterior features in good repair & 2) required P to get approval in advance of any
proposal to alter the exterior architectural features. Court did not engage in
conceptual severance here (100% loss of airspace)looked at everything owner had
in connection w/parcel. Court held there was no takingP had same investmentbacked expectations as before (use as RR).
(e) PalazzoP was a shareholder in a corporation that invested in the subject property.
D resource management council promulgated regulations designating salt marshes
such as those on the property as protected coastal wetlands. P subsequently became
the corporation's sole owner. When the corporate charter was revoked, title passed to
P. Court held that state court erred in ruling that acquisition of title after the effective
date of the regulations barred the claimno expiration date on takings clause.
However, the state court did not err in finding that P failed to establish a deprivation
of all economic value, because it was undisputed that the upland portion of the parcel
retained significant worth for construction of a residence. The case was remanded so
the claims could be examined under the Penn Central analysis.
(3) Exactionswhen govt conditions a permit on your supplying a public benefit
(a) 2 requirements:
(i) There must be an essential nexus between the legitimate state interest & the
permit exacted by the city
1. NollanP wanted to replace little house with big one, and govt
conditioned permitting this on Ps giving public access to beach (easement
parallel to the coastline). Govt claimed that big house would be taking
view of ocean from public by blocking it, and wanted to Ps to give it back
in the form of an easement. Court decided that even if visual access to the
ocean was a legitimate public good, there wasnt an essential nexus between
the public purpose and the particular exaction the govt was requiring.
(ii) Govt must also show that the permit conditions imposed bear a rough
proportionality to the negative impact of the development on the public
1. DolanP wanted to double size of her store, and part of her ppty was in a
flood zone. Govt wanted her to put in a storm-draining system & bicycle
path b/c store would create more runoff (increase area of impervious
surface) & increase traffic. Court held that assume there was an essential
nexus here, the exaction was disproportionate to the loss to the public.
Problems: why should the floodplain be public, and would the increase in
traffic really be in the form of bikes?
(b) This applies to impact fees as well
v) Just compensation
(1) Interim damages from the time ordinance was enacted until date govt chooses to rescind
or otherwise amend the regulation
(a) First English Evangelicalcity passed ordinance prohibiting P from reconstructing
buildings until potential for flooding reduced. Court held that this could be a taking,
and that if it did, interim damages due from the ordinance was enacted until
determination that its a taking.
(2) Permanent damages must be paid if govt decides to keep the regulation in force

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