General o Without government, rule, laws how do we protect property?

o Property Owner Rights: EPUT (exclude, possess, use, transfer) o Social Context (man/woman, business/homeless, people/things) is relevant o Property Law exists to serve human value: Owner rights v. responsibilities to public

Normative approaches to property rights Traditional American Indian Conception not possible to own the land More oriented to sharing, Use of property would overlap Positivism and Legal Realism Positivist theories identify law with the commands of the sovereign or the rules promulgated by authoritative government officials for reasons of public policy. Separate Law and Morals Justice and Fairness Ambiguities in existing law must be filled by judges. They should interpret gaps, conflicts and ambiguities in the law in a manner that protects individual rights, promotes fairness, or ensure justice. Utilitarianism, Social Welfare, and Efficiency Focus on the consequence of alternative legal rules. (Cost and benefit) Goal of adopting rules that will maximize the social welfare. Social Relations analyze property rights as relations among persons regarding control of valued resources. Feminist Legal Theory, Critical race theory, Libertarian and Progressive approaches to property Libertarian hope to minimize government regulation of property Progressive who hope to promote more equal opportunities to acquire property

A. Trespass Property Owners right to exclude protected by trespass can seek ejectment in court to kick trespasser off their property Common Law definition Unprivileged intentional intrusion on property possessed by another NJ definition Any person who trespasses on any lands, after being forbidden to trespass by the owner, is disorderly person and shall be punished by a fine of not more than 50$. Defenses to Trespass: a. Necessity: emergency, etc. b. Consent:

c. Public policy: State v. Shack this exemplifies a public policy exception to trespass. d. Civil Rights Statute e. Innkeepers and common cariers

i. Public policy limits on the right to exclude State v Shack New JerseyRight to exclude doesnt include restricting migrant workers access to government service Farm owner exclude access to government lawyers to visit workers on farm without him being present. Tries to exercise Individual Ownership right to exclude Def: violates first amendment rights established in Marsh allowing Jehovah Witness to pass out fliers in company town. Amalgamated Peace protestors were allowed entry in shopping centers Difference is those were open to public, not a business farm Rule: Ownership of property does not include right to bar access to government services available to migrant workers; allowed to have guests -Court only ruled on NJ statute grounds (not a trespass because statute N/A) -Title to property cannot include dominion over the destiny of persons -Migrant workers are a special class of people, isolated from surrounding community. -Legislation passed specifically to try and help this group in the past. -Allows for access, but with limitations Initially right to own property seen as an INDIVIDUAL RIGHT but overtime came to be seen as needing to accommodate the SOCIAL INTEREST -Dicta from Shack: Property rights serve human values

Points FOR Individual ownership Rights in State v. Shack: -Owner still has right to ask people who they are and what their purpose is -Only applies to very specific class: Migrant workers on isolated farms w/gov workers -Visitation cannot disturb business operations Points FOR Societal Benefit in State v. Shack: -Workers on land have right to receive guests at their discretion -Cannot deny access to government services -COMMON LAW: Property rights should not be used to infringe on the rights of others WHAT AFFECT ON PROPERTY LAW? Owners right to exclude is not absolute: cannot prevent access to government services for migrant workers. Any visits cannot impede normal operation of business. Attempts to balance Individual rights with societal obligations Apply State v Shack

HYPO: One of Tedescos workers has a sister who needs a place to stay victim of domestic violence Same: Workers have right to receive visitors at their choosing; special class for migrant workers extends to their families; Diff: Sister isnt a government worker provided services, owner has no responsibility to family members; a visit isnt the same thing as an open ended place to stay; could cause disruption at farm in attacker shows up HYPO: Live in domestic worker is underpaid and doesnt receive overtime. Runs into lawyer at market. Wants to find out what her rights and have him visit her at home/work. Same: Live in the place where works; right to receive visitor in place of residence; disadvantaged needing advice and help; ownership of property doesnt include dominion over others Diff: Not a place of business; worker lives IN the home no spate area; having people over would disrupt owners home; worker not isolated if running into lawyers at store alternative meeting places; not a migrant worker Examine State v Shack from various normative approaches Right to exclude generally supported by law of trespass, but can vary Social relations: what one does affects others. No absolute rights Utilitarianism: Best interest of the majority considered Justice and Fairness: Do whats equitable for rights involved Government workers helping needy wasnt the intent of the NJ statute EPUT: Tedesco wanted absolute right to exclude balanced with social concerns ii. Right of Reasonable access to Property Open to the public Common law: right of reasonable access to property open to public Common carriers and innkeepers do NOT have right to exclude Travel was dangerous, more monopolies existed, interstate commerce restricts right to travel, captive audience (cant get off a train)

Minority Rule: cant be excluded without good reason (security risk, endangering others, violating some other law) Uston card counter Majority Rule: Most business can exclude for whatever or no reason at all (except common carriers or if violates Civil Rights statutes) Madden/Brooks racetrack Uston v Resorts International (N.J. 1982) shows Minority Rule Casino card counter guy, Lost similar case in NV Issue: can Casino exclude Uston for card counting? Def: In Shubert v. Nixon SC case dismissed because theatre excluded man but plaintiff didnt claim it was done because of race, color, or servitude. Casino doesnt have same level of responsibility as a common carrier or innkeeper because there is no monopoly and life is not in danger if cant go in. Should have absolute right to exclude

Plaint: No common law or statute that gives right to exclude just because of a strategy Held: As a place holding itself open to public for economic gain, casino cant exclude without cause. Cause could be 1) violating other laws 2)being intoxicated 3)posing a danger to other patrons or 4)disrupting the course of business. In State v. Schmid it established that exclusionary regulation had to meet a reasonable standard to protect interests of University as well as interests of personal expression of freedom. Extends this thought to Uston. Uston wasnt doing anything technically wrong MOST STATES DONT HOLD THIS VIEW WHAT AFFECT ON PROPERTY LAW? Right to exclude of owner can be limited if plaintiff not disturbing business or breaking laws (Minority). Exclusion rules can vary state to state (but cant be less than federal protections) Madden v. Queens Country (1947 NJ) Shows Majority Rule Racetrack mistook Madden as criminal bookkeeper and denied him entry. Issue: Does reasonable access common law only apply to innkeeper/common carriers or for places of amusement too? Plaintiff argues that as a taxpayer and member of public should not be barred access Def: argues didnt do anything wrong and amusement has absolute right to exclude Court found racetrack does have a right to exclude and the common law right only extends to innkeepers and common carriers. The right to exclude remains until changed by Legislature. The only relevant statute was the Civil Rights Legislation in New York, but that only protects exclusion based on race, color, ethnicity, or national origin. WHAT AFFECT ON PROPERTY LAW? Places of amusement have absolute right to exclude as long as they not violating any federal or state discrimination statutes (Majority). Dont need a reason.

Brooks v. Chicago Downs (Illinois) Shows Majority Rule Too! Another racetrack case -Businesses that rely on customers for profit arent just going to randomly exclude people arbitrarily. Word could get out and effect sales -But they shouldnt bear the burden for proving justification EVERY time they make a judgment call to exclude -In modern society, lower risk of monopolies or death of exclusion -common carriers common law may seem antiquated but still applies WHAT AFFECT ON PROPERTY LAW? Anything other than com carriers/innkeepers have absolute right to exclude as long as they not violating any federal or state discrimination statutes (Majority). Dont need a reason. iii. Public Accommodation Statutes i. Federal Public Accommodation Laws

Civil Rights Act of 1964 2000a Prohibition against discrimination or Segregation in Places of Public Accommodation Protects: Race, Color, Religion, or National Origin (not gender or sex orientation) Section a): defines what counts as discrimination and what is protected entitled to the full and equal enjoyment of the goods, services, facilities, and privileges, advantages, and accommodations of any place of public accommodation, as defined in this section, without discrimination or segregation on the ground of race, color, religion, or national origin. Helps public, business, and government know what rule theyre working from Section b): Covers what types of establishment statute applies to 1) Inns, hotels, motels, or other establishment >5 rooms and occupied by owner 2) Restaurants, other places to eat 3) Movie theaters, places of amusement 4) Any establishment connected to one of the above Private establishments not open to public not subject to statute except to the extent they interact with the public Elements plaintiff must prove to file suit i. Place of Public accommodation ii. Discrimination iii. Discrimination occurred due to Race/color/national origin/religion Remember: when claiming under title II the plaintiff will go to a State agency FIRST, then she will go to federal court to pursue a claim. Gives state the chance to correct action first WHAT AFFECT ON PROPERTY LAW? Cant exclude for race, color, religion, national origin in hotels/motels, restaurants, amusement, or anywhere connected if open to public Civil Rights Act of 1866 1981 and 1982 Was narrowly construed to only cover state property Only regulated race as is enjoyed by white citizens Dealt mostly with African American rights to make and enforce contracts But since only applied to states didnt govern individual conduct Some courts hold it violation under 1866 if you cant complete contract and buy dress. Other cases held statute only ensure equal access to the store, not that they have to sell it to you. WHAT AFFECT ON PROPERTY LAW?

Cant discriminate or invalidate contracts based on race or former servitude. Ensured slaves a role in the economy post-civil war DIFFERENCES between 1866 and 1964 Could recover money/attorney fees under 1866 1964 only provides injunctive relief 1866 dealt only with race 1964 protects race, color, religion, and national origin 1964 goes to state first/1866 can go direct to fed HYPO: Really high end jewelry store uses buzzer to admit customers Is it private or public? Doesnt apply: Not open to public so can discriminate Does: Makes sales (commerce) and pays taxes, subject to statutes HYPO: Law professor trying to enter retail store using buzzer system Does: if discrimination was based on race, then violates Doesnt: Could have been security measure too many people in store already for clerk to safely handle Retail stores can discriminate as long as not violating CRA legislation. Broad or Narrow interpretation?: what was the point of the legislation vs only those categories of businesses listed ii. California Public Accommodation Law CA Civil Code Section 51 Unruh Civil Rights Act More expansive than federal standards (for non-owners) -gender, sexual orientation, ancestry, disability, medical condition, genetic information, marital status Applies to all business establishments no exceptions State can extend protection beyond federal minimums, but cannot make less

iv. Beach Access and the Public Trust Doctrine Public Trust Doctrine COMMON LAW Public right to use all public land and water, but held in trust by government Originally English Common Law Fishing/Navigation Just water Then Later Arnold oysters in public water Avon different $ for nonresidents -Public use covers everything in the water -equal access for municipal beaches including swim, oystering, etc. -Use includes resting in sand, sunbathing, high water mark

Access is tied to general welfare: private ownership vs societal needs again

Matthews v. Bay Head Improvement Association Quasi-Public Beach Out of 76 plots that provide access to beach 70 are private owned and rest are owned by association. Association is non-profit set up to maintain safety and preserve beach. Limits access through their plots during daytime summer hours. Membership only available to residents of Bay head Issue: can residents pass through non municipal land to get to water front? Limiting membership prevent equal access to beach? Court relied solely on public trust doctrine: Quasi-public beach: As non-profit have responsibility to public Can access through beach to access water and use sand to rest and recreation Must open membership to all Public has right to use water, if cant access invalidates that right There are no designated public access areas in Bayhead Beach is unique, irreplaceable resource: public has right Quasi-Public Beach: Must Open to all for all activities Private beaches: need to provide reasonable access (could include sunbathing!) Court didnt rule carte blanche on opening private beach land up to all reasonable access decided on case by case basis What is owner using land for? What is public demand for access? Are there public alternatives? DIFFERENT THAN USTON/SHACK No Commercial Interest here. No dispute over ownership (farm worker living where they work) rights WHAT AFFECT ON PROPERTY LAW? -Quasi public beaches open to all public. -Even private owned beach lands individual owners right potentially can be reduced to allow public access and reasonable use of waterfront under public trust doctrine if only feasible means. -Favors Publics right of Access to Beaches over absolute owner right to exclude

v. The Right to be Somewhere and the Problem of Homelessness Property rights dont invalidate humans right to survival Pottinger v. City of Miami Orange Bowl Sweep Away the Homeless (Florida) Balances homeless right to survive with city responsibility to maintain public/economy Human life more valuable Safe zones created to allow homeless people to be somewhere. Tried to stop having homeless people arrested. Cant criminalize harmless behavior by homeless conducting survival task if survival behavior outlawed in public, only private property owners would have right to survive

Cruel and unusual punishment Homeless arent necessarily that way by choice, may truly lack other options Not enough shelter, emergency, mental issues, etc. Rule: Even the homeless have a right to survive. They still have protection as human beings even without owning property. WHAT AFFECT ON PROPERTY LAW? City cannot criminally arrest homeless just for existing. Cannot criminally target someone based on their class (other identifiers?) Reduces citys right to exclude beyond just civil rights statutes. Societal benefit for homeless to have right of survival Tobe v. City of Santa Ana Camping equipment ordinance Different result than Pottinger Ordinance that barred camping equipment is allowable on face targeted a behavior, not a class. Court said: no constitutional obligations to make property available to homeless people. Not allowing camping equipment does not infringe on right to travel Doesnt necessarily disagree with Pottinger that homeless cannot be punished simply for being homeless. Breaks with that case on fact that they cant say conclusively homeless dont have other options WHAT AFFECT ON PROPERTY LAW? City can regulate behavior in public spaces provided it applies to everyone. No city obligation to make public spaces accessible to homeless (split with Pottinger) Berkeley sit and lie ordinance. Distinguished from other two. No sitting or lying on public property between 7am and 10pm. Identified the scope of when a person can be subject to the law. Directed at all people. No criminal punishment Tries to direct homeless to benefits They can deal with city lawyers to erase the citations. It is restricted to commercial districts. *All deal with PUBLIC land and municipalities. Private business owners can exclude homeless if they want as long as not violate civil rights statutes. Limits on the Right to Exclude Review (ATTACK) a. Issue: Is there a trespass or a right of access? b. Rule: Define trespass, spot and analyze possible rights of access i. Right of Access based in Constitutional Law? 1. Federal 2. State ii. Right of Access based in Statutory Law? 1. Federal 2. State iii. Right of Access based in Common Law? iv. Public trust doctrine? c. Analysis: On the other hand, on the other hand (include policy, theory)

d. Conclusion: Which side has the better argument, and why? B. Democracy and Property America has anti-feudalism streak -Illinois Palace Car Company case ruling company owned town had to be sold off -Duke of York giving all of NJ to two people was too concentrated of power - DePeyster v Michael Old case for ejectment for violating contract requirement of future sales to original grantors Constitutional provision against nobility, antithetical to American ideals Lords/fief relationship generally incompatible with democratic society Apartment tenants/landlords kind of similar though Strongly favor individual ownership rights -Disfavor provisions that restrict alienability or combat social welfare -disfavor transfer that seem too much like feudalism or deny equal status of persons Oyama v. California Helped eliminate alien land laws in CA Facts: Japanese national placed his sons (seven years old) name on the title as he was banned from owning land. Also couldnt become a citizen himself as he was forbidden under federal legislation. Filed an escheat action to get fee simple absolute (free and clear). CA tried to take Oyamas property. Holding: Court found the escheat action unconstitutional as it violated Freds rights. When Fred bought the land for his son, it is a gift. And CA was challenging that presumption. The court struck down the alien land law as applied to Fred. They refused to answer the question in regards to Fred Oyamas father ie the man who actually paid for the place. Dissent: wanted court to go further, and say that Oyama sr. should have been able to buy the property. Not just that the son should have been able to receive the gift. C. Competing Claims to Property Right of Possession where does ownership stem from? THEORIES: Discovery Doctrine If you find it you own it First in time principle: first come first serve: Original ownership Dictated European discovery of America during colonialism Efficient: easy to establish and follow Observed by international community Labor Theory John Locke Property becomes yours if you create it and work for it No frontiers left still allows for ownership for creation of value Ex: Adverse Possession, Intellectual Property Rights

Utilitarian Property is a means to an end Private property exist in order to maximize the overall happiness or utility of all citizens Law and Economics incorporates economic principles into utilitarian theory. The law enforces property rights in order to motivate individuals to utilize resources efficiently. Personhood Theory certain things are seen as so closely connected to a persons emotional and psychological well-being that they virtually become part of that person. Ex: Wedding Ring, Adverse Possession tied to the land argument Under Doctrine of Discovery two types of title in US: Fee title right of ownership acquired by Europeans, then to U.S. Absolute title subject to occupancy rights Use title right of occupancy held by Indians -Can be extinguished by congressional act -Can be purchased -Can be given away as gift -Can be gained by conquest (war) i. Conquest Johnson v. McIntosh Johnson seeks to eject McIntosh claims title bought from Indians McIntosh holds title bought from US Government Issue: Can Indians sell fee title in their lands? Held: No, they dont have it to begin with Indians never possessed title in first place had no concept of individual ownership rights. Communal ownership usage can be ambiguous, more conflict/litigation, and slow market turnover. Doesnt work with American system. Europeans gained title through conquest, but Indians had right to occupancy still. McIntosh argued Indians were compensated for their land through receiving Christianity. Only valid title stems from US government -May seem unfair, but to say Europeans stole land from Indians would require compensation by US (not in a position to do so) -would create all new litigation for disputed land now occupied by settlers WHAT AFFECT ON PROPERTY LAW? Two sets of title: fee title and right of occupancy; Indians not entitled to compensation for their land: Only valid title is U.S. Government title Tee-Hit-Ton v. United States (Alaska Indians) Alaska Indians seek compensation for timber taken from their land under 5th Amendment takings clause Issue: To Indians have any permanent right to property on land they occupy by permissions of government? Held: No Indians only hold right to occupancy title, not the title of ownership. As such not do any compensation from the government when land resources are used. Indians tried to establish that Russia had treated them differently than US and that Tee-Hit-Tons had private ownership, but claims were murky and had no well-defined borders and shared usage like

communal property. Any compensation that government allowed Indians to recover for past wrongs is done as a matter of grace, not from legal liability Some Indians like decision because US only entity to deal with regarding title now Different than Johnson? US Purchased land from Russia, didnt aquire through chain of conquest. Dif property? SOCTUS says Russia let them use land same way Americans and Europeans did Johnson applied too broadly Different set of facts, not taking land, taking value off land. Different? WHAT AFFECT ON PROPERTY LAW? Indians not owed compensation for resources taken from land they occupy; must be the fee title owner (private individual owner right) to recover compensation ii. Labor and Investment International News v. Associated Press (1918) AP filed to suit because International News would take their finished work either through bribes or posted on bulletin boards and reproduce it without credit to AP. Could get it to west coast same time as AP published there. Issue:Is publication of news count as property? If it is, do property right expire when published? Held: Quasi property in relation to competitor, not property in relation to public Using Lockes Labor Theory, property becomes yours when effort and labor put in to it. Took skill and labor for AP to compile news, so some valid interest No restriction for public use, but yes for competitors Court just made up rule. No precedent. Justice for AP: INS reaping what is not sown No competition between AP and Public No one owns an event and after it happens all can report, but INS cant steal work of AP INS Unfair business practice p135 cant unreasonably interfere with business operations Sources of law: Copyright - usually for books, music, original works Article I Constitutionpromote progress of useful arts by protecting writing/discoveries Common cases establish protection for work/labor Unfair business practice brought in from other branches of law WHAT AFFECT ON PROPERTY LAW? No copyright on news with regard to public. One can create value/property in non-copywriter material if put enough labor into it with regards to competition. Labor theory interest

iii. Possession: Wild Animals, Baseball, and Oil Pierson v. Post (N.Y. 1985) Fox Snatcher Post was hunting fox with dogs, Pierson swooped in and killed fox and took it. ON PUBLIC LAND Rule: Using traps or nets may establish occupancy to deprive wild animal of freedom needed to claim property rights. In order to establish occupancy: 1) Intent to capture 2) wound or ensnare animal and 3)cannot abandon pursuit

Dissent: Social policy concern that it would encourage lazy saucy intruders and disincentive for large hunting parties with dogs that may be necessary for killing fox. Majority decision based on antiquated ancient texts. Should have differed to hunter/sporting groups to incorporate custom. Having large dogs shows big investment and should be awarded property rights if in hot pursuit FOR individual ownership rights: Have to either physically possess animal or wound it to the point of being about to take it away. Protects reasonable pursuit and investment in hunt. WHAT AFFECT ON PROPERTY LAW? In order to establish occupancy/property ownership in wild animal on public land: 1) Intent to capture 2) wound or ensnare animal and 3)cannot abandon pursuit Popov v. Hiyashi (Cal Superior Ct. 2002) Barry Bonds Homerun Ball Popov had begun to catch record home run ball when tackled by group of people, dropped ball Hiyashi picked it up. Rule: Where actor has taken significant step to achieve possession of abandoned property and is interrupted by unlawful activity has quasi interest in the property Court ruled that although Hiyashi has proper ownership of the ball since he possessed it and took it away, his title clouded by Popovs interest. Popov was illegally disrupted before being able to drop or catch the ball. Pierson v Post was brought up, but court ruled that a ball is easier to establish control over that a wild animal (mortally wounding and maintain pursuit). Ball sold off and split profits WHAT AFFECT ON PROPERTY LAW? Illegal interruption while in pursuit of abandoned property can create at least some interest in property for the pursuer. FOR societal benefit: Discourages attacks on people in order to get to abandoned property first FOR Individual ownership: Whoever ends up with the property still rightfully owns it, just may have to share it with someone illegally attacked. Elliff v. Texon Drilling Co. (Tex.1948) I Drink your Milkshakeand wasted it. Elliff owned property and partial rights to oil underneath. Adjacent to Texon operated drill on neighbors land. Overlay common reservoir. Texons well blew up and caught fire, wasting tons of oil. Law of capture: Original owner loses property rights if the property migrates off their land on to someone elses land (usually applied to ducks foxes animals etc.) Usually there is no claim to unpumped oil from common reservoir. Everyone has equal chance to pump it. BUT Texon didnt give equal chance to get oil because they wasted it due to faulty drill. Ellifs can recover.

WHAT AFFECT ON PROPERTY LAW? Rule of capture not valid if captured property is negligently wasted or destroyed.

FOR societal benefit: discourages wasting resources just to pump more first. FOR individual ownership: Law of capture still valid as long as done legally. Follow the book have full rights.

Estates Ownership divisible by time (1) Two types of interest or estates (a) Possessory Estate (Present) - not necessarily ownership just who is living on land now, but the power to stay there (b) Future Interest - Person is waiting until they can posses the property to become present interest. Future interest can be created by sale, lease, will or trust (i) Testator dies leaving a valid will. (ii) Settlor one who establishes a trust (iii) Act of leaving property in a will is called devising (iv) The Act of leaving personal property is called bequeathing (v) The document creating the trust arrangement is called the declaration of trust. (vi) Inter vivos during the persons life. (2) The Estates System is further classified between Feehold and Non-Feehold Estates (a) Feehold - owner who has seisin (possession) and is not subject to another owner Feehold type (i) Fee (ii) Life (iii) Feetail (b) Non-Freehold Estate - Owner who is subject to another owner (lease)

ii) Problem of Dead Hand Control (1) Owners may seek to control the property long after they die. (a) The ability to create future interest, unless regulated by the legal system, could eventually clog up the market for real estate by attaching numerous and multiple conditions to property restrict both what it can be sued for and whether it can be bought and sold. iii) Hierarchy A second problem associated with the ability to create future interest is the possibility that by imposing restraints on alienation and use, owner will have the wanted or unwanted effect of concentrating ownership in the hands of certain group and excluding others. (1) Concentrates ownership in the hands of those who already own property and their descendants.

iv) Freehold Estate - Indefeasible Fee (1) Indefeasible Fee (a) An estate that has no ending (2) Only one type of indefeasible Fee (a) Fee Simple Absolute FSA Largest Estate; estate that does not end (3) Examples of Indefeasible Free/Fee Simple Absolute (a) O to A and her heirs (b) O to A in Fee Simple (c) O to A (Modern Form) (4) Determining Present and Future Interest (a) What is the State of the title? Who has a present interest and who has a future interest (i) O to A a. A: Possessory Estate "present interest" in Fee simple Absolute b. O: Has nothing, No Future Interest (5) Defeasible Fee (a) An estate can come to an end at the happening of a particular event 3 Types (i) Fee simple determinable (FSD) (ii) Fee simple subject to condition subsequent (FSSCS) (iii) Fee simple subject to executory limitation (FSSEL) B) FSD i) Type of Estate where the grantor granted property that ends automatically at the happening of an event (automatically terminates a possessory interest). ii) Language - Words function to create time limits (1) Until (2) So Long As (3) While (4) During (5) Unless iii) Examples of Fee Simple Determinable (1) O to A until Blackacre is used for residential purposes (a) What is the state of the title A: Possessory interest in FSD O: Future interest with the possibility of reverter (i) If violated O gets property automatically iv) Possibility of Reverter is the future interest of a grantor that follows a fee simple determinable (1) Grantor automatically becomes the owner of the property once the "event" is trigger (ex: Once Blackacre is not used for residential purposes) C) FSSC i) Fee Simple Subject to a Condition Subsequent (1) Language (a) But if (b) Provided That (c) On the Condition that

(d) However (2) Example of FSSCS (a) O to A, but if A divorces B, then back to O What's the state of the title (i) A: Possessory interest in FFSC (ii) O: Future interest with the right of reentry a. Right of reentry is not automatic like in FSD. i. Grantor's Future interest is called "right of entry" ii. Sometimes call "power of termination" "right of re-entry" iii. Not automatic transfer of property iv. Grantee is owner of property until Grantor asserts ownership D) Why is it important to know which limitation was created? (1) Limitations help to determine who owns property at the moment an event occurs (2) Implications for various issues regarding property (a) Adverse Possession will affect the statute of limitations (the statute of limitations for an FSSCS starts to run when the holder of the right of entry demands a right of possession from the present estate). (b) What property interest may be conveyed (sold, given, inherited) (c) Who to sue (3) Laches prevents recovery when an unreasonable delay in asserting legal rights unfairly prejudice another. (a) The MODERN APPROACH (but not universal) has been to start the running of the statute at the moment the condition is violated, making right off entry effectively similar if not identical to possibilities of reverter ii) Punctuations & Limitations (1) Determinable (a) The limitation is placed before the punctuation mark signaling the end of the description of A's estate (i) O to A until B marries, then to O (2) Subject to Condition Subsequent (a) The limitation is placed after the punctuation mark signaling the end of the description of A's Estate (i) O to A, but if B marries, then to O E) Fee Simple Subject to Executory Limitation (FSSEL) i) Grantor conveys property to grantee with a condition. If the condition is violated, the property automatically goes to a third party (1) Third parties future interest is call "executory interest" ii) Third Party has a Future Interest (1) O to A. but if A divorces B, then to C (a) A: Present interest subject to FSSEL (b) C: Executory interest in FSA (2) O to A, on the condition that A does not divorce B, but if A divorces B, then to C (a) A: Present interest subject to FSSEL (b) C: Executory interest in FSA F) Life Estate i) What is a life Estate? (1) O to A for life (2) O to A for life for the life of B

(3) O to A for life, then to B ii) Two different types of future interest that follow a life estate (1) Reversion - held by the grantor (2) Remainder - held by a third party (a) What is the state of the title? O to A for life (i) A: Present Interest in life estate (ii) O: Reversion O to A for life for the life of B (i) A: Possessory interest in life estate pur autre B a. O: Reversion "O to A for life" Then A conveys to B (i) A: Possessory Interest in life estate (ii) O: Reversion (iii) B: Life Estate pur autre A a. B is not a third party because to be a third party O must specify B O to A for life, then to B (i) A: Possessory Estate in life Estate (ii) B: Absolutely Vested Remainder a. Not executory interest because doesn't have "but if" or "condition" (b) Life estate for the life of another life estate per autre vie G) Fee Tail i) Abolished in most states and treated as a fee simple absolute ii) O to A and the heirs of his body (1) What is the State of the title (a) A: Possessory Estate in Fee tail in FSA A's Heirs: None because abolished in the US and treated as a FSA

Shellys Rule: O to A for life, then to As heirs (when A is alive) Creates FSA Now in A since cant have heirs till they die anyway Largely Abolished Today: Modern: A has life estate, As unkown heirs have a contingent remainder, O has Reversion Doctrine of Worthier Title: O to A for life, then to Os heirs Eliminates future interest in Os heirs A has life estate, O has reversion. Promotes Alienability Rule of construction that can overruled by clear grantor intent

Rule Against Perpetuities No interest is good unless it must vest and close, if at all, no later than 21 years after some life in being at the creation of the interest. concepts: 1. interest must vest and close Or Fail.

2. Must vest within the perpetuities period. 3. Lives in being are persons who have an interest in the peroperty. 4. Validating life is one of lives in being. She helps to prove that property is certain vest, and if not, then Fail. Will it vest more than 21 years after the death of someone in being at the creation of the interest? Policy: Avoidance of Dead Hand Control. Common law--COVE (applies to): a. Contingent remainder b. Option to purchase c. Vested remainder subject to open d. Executory interest i. Wait and See: don't invalidate future interests just because there's a possibility of vesting outside perpetuities, wait 21 years after the end of the life of interested parties, and if it hasn't vested, it can stay with grantor. ii. Cy pres: equitable reformation; strike out offending language and get the conveyance as close as possible to the grantor's intent iii. Uniform Statutory RAP: rules defined by statute , validate transfers that otherwise violate the rule against perpetuities if interest vests at any time within 90 years. Ambiguous Conveyances When trying to decipher unclear conveyances 1. Intent of the grantor 2. If intent unclear, presumption against finding a future interest a. Social policy considerations for furthering free use and alienability of property Wood v. Board of County Commissioners of Fremont County (Wyo. 1988) -Wood gave land with purpose to be used as public hospital to memorialize soldiers Was used as hospital for long time, then sold to private company. Kept as hospital, then moved operations -Wood tried to get land back say it created an FSD or FSCS Rule: 1. A fee simple determinable requires the presence of special limitation (Williams v. Watt rule 1983) with specific reference to the event that may cause the property to revert to original grantor. "for a specific purpose" is not enough for FSD. 2. Conditions tending to destroy estates (such as FSD or Fee simple subject to conditions subsequent), aren't favored by law. They are to be strictly construed and no provisions will be read to create such a condition if there is another reasonable interpretation that doesn't destroy the estate (19 Am. Jur. Estates 65). Creating a type of estate without explicitly saying so Edwards v. Bradley (Va. 1984) -Woman had conveyance provided it was used as a farm. If not would spring to her grandchildren. Got mad at one for not letting her sell off the farm, so only left her a dollar claiming she had been given fee simple since it did not say life estate. Conveyance include

language of not being susceptible to creditors. Couldnt disinherit the one grandchild because only had life estate and included in original conveyance Rule: If a will does not explicitly leave a life estate in property the creation of a life estate can be implied from the intent of the testator. Point FOR intent of grantor: All the surrounding language indicates a certain type of estate, then go with that COMPARE WITH.. Against the Creation of new Estates Johnson v. Whiton (Mass. 1893) Tried to create fee tail, but only heirs on fathers side Rule: A person cannot create a new type of inheritance by will. If conveyance tries to create limitation not allowed under current fee, offending language struck out becomes fee simple Intellectual Property a. Trademark Law b. Patent Law c. People Article I - "Promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries" Trademarks, Copyrights, and patents all governed by fed statutes Article I- "Promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries" Copyright -literary and artistic works, books, poetry song, dance, drmatic works, computer programs, movies, sculpture, and painting -Congressional legislation Patent Inventions, processes, machines, and compositions of matter. TrademarkSymbols that indicate the source of goods or services Rose out of state common law rather than federal legislation Fed legislation supplement, not replace Deals with unfair competition and misappropriation Prohibits using information obtained from competitors in in way that unfairly appropriate the products of their competitors efforts. Lanham Act interpreted broadly (even color might be trademarkable)

Trademark Definition: Name, Symbol or type of packaging that identifies the producer of a good or services Prevents competitors from counterfeiting products/ consumer reliance know what theyre buyin Trademarks get protection ONLY IF used in commerce to sell goods or services If trademark not used for a long time, may constitute abandonment and lose rights First to use a mark in business gets rights, subsequent attempts to use the mark in business will fail. Generic names cannot be trademarked (potato chip, bread) Unlikely to signify maker Competitors likely will need to use word to sell their product. Qualitex Co. v. Jacobson Products Co. 514 U.S. 159 (1995) Color pads at Laundromat Rule:1)Trademarks include any word, name, symbol, or device, or any combination thereof2)Trademarks must be used or intended to be used to identify and distinguish his/her

goods, including a unique product, from those used and manufactured by others and to indicate the source of the goods, even if that source is unknown"
Color can be trademarked Trademark 1)identify/distinguish product 2)indicate source Secondary meaning Product color or attribute becomes synonymous with product

FUNCTIONALITY DOCTRINE- Cant trademark useful product feature -cant unduly impede competition (Cheetos cant TM orange for cheese flavor snacks)

Patent Law Grants inventors of processes, machines, and compositions of matter a monopoly over their inventions for up to 20 years 35 U.S.C. 101 et seq. Four requirements for patent: 1. Subject matter must be patentable - machine, method of manufacture, of "composition of matter" 2. Invention must be novel 3. Non-obvious 4. Useful

Moore v. Regents of the University of California (Cal. 1990) used spleen to start cell line Doctor took leukemia patients spleen and made cell line, sold eventual product for big$ Suit based on idea mans cells were entitled to property rights Conversion claim Unchanged human cells arent traditional property rights. Property rights come from novelty and invention doctor put into creating product from the cell line; CA statute for disposal reduces property concept of tissue from surgery POLICY: could ruin medical research market Arabian: issue best left to tort law and legislature, not property Brousaird Dissent: Research wouldnt be hurt by getting consent. Damages would be limited to raw product value, and most cells are gained with consent already anyway; was conversion because took property no consent Mosk: Patient should have had same opportunity to make profit as doctors did; not including patients in the windfall from research $; equality LABOR THEORY with doctors. Fails on JUSTICE/FAIRNESS doctrine RELATIONS AMONG NEIGHBORS Adverse possession Allows trespassers to become landowners Justifications for Adverse Possession 1) eliminates stale claims to land title (removing the risk that ownership will be based on the distant past) 2) encouraging maximum utilization of land. 3) Holmes - that the AP has roots and they would be displaced (personhood theory) 4)Posners economic argument. The AP loses the property, thats very bad. The original possessor, who hasnt had the property gets a diminishing marginal utility from reinstatement of the property. why protect the land pirate? 1) rest on actual use instead of amorphous good faith 2) failure of true owner to object might be understood as effective abandonment of the owners rights. 3) statute of limitations ( if you couldnt bring it in a ten year period the encroacher develops legitimate interests). 4) reliance. Class notes on justifications: 1-CL certainty of ownership-encourage maximum use of land 2-economic justificationmarginal utility of incomeAP really wanted it, doesnt mean as much to the owner 3-Moral - personhood theory- people becomes attached to property and eventually it becomes an extension of them that should be protected by property interests.

Four Approaches to the Adverse Possessors State of Mind 1)MAJORITY Objective test based on possession (majority rule) A. Lack of Permission all that matters is that the possessor lacked permission from the true owner. Subjective tests based on : 2) claim of right-possessors intention to appropriate and use the land as his own to the exclusion of all others(looks subjective but is actually a derivation of 1) -different approaches by state that can include subjective 3) intentional dispossession-bad faith must be aware of being in someone elses property + must intend to oust the true owner. (can be similar to claim of right) 4.) MINORITY good faith - opposite of intentional dispossession- in some states require the opposite of an intent to oust the true owner must be innocent and mistakenly occupy property owned by someone else.

ELEMENTS C claim of right OR color of title (bad deed) -COR only part used, COT whole parcel H Hostile or Adverse Without owners permission. Presumption of nonpermission A Actual Use in way a normal owner would (rural areas can be less) N Notorious and Open put owner on notice, fence/building/garden C Continuous Doesnt need to be 24/7 E Exclusive Can have guests S Statutory period Clear and convincing burden of proof! Not just preponderance of evidence Brown v Gobble (W. Va 1996) Previous owners mistakenly built fence on part neighbors property Tacking statute of limitation time on to previous owner allowed if they were meeting elements Building fence, planting garden, maintaining property, reputation of neighbors, previous owners beliefs Romero v. Garcia Used color of title Statutory period was 10 yrs. she was on property for 15 years More than just the house Using Color of title if she wins she is owner of entire property not just the house Deed was claimed to be defective because it failed to describe a specific piece of property

Mother in law also failed to signed title Deed was in Spanish - need to get translated But still unclear of what land is Court said there was enough information to ascertain the boundaries Paying taxes Surveyor did survey Land was in a Parallelogram that came out to 12.95 acres Court ruled in favor of the plaintiff If she didn't have a deed but met all the other elements she would get only the property she used --> not the full 13 acres Nome 2000 v. Fagerstrom Charles began using property since 1944 or 1945 as a child. The relevant period began when he manifested his presence there They built a cabin and allowed others to use the property Allowing others to use the property doesn't defeat the interest because they were acting like hospitable land owner would If others stayed on land and used it others would be co-owners There needs to be only one controller otherwise no exclusivity This was a rural area in Alaska - Not used year round But that was how property was normally used. Shouldn't defeat claim for adverse possession

Prescriptive Easements implied easements granted after the dominant estate has used the property in a hostile, continuous and open manner for a statutorily prescribed number of years. Prescriptive easements differ from adverse possession by not requiring exclusivity. Affirmative easements - right to do something specific on the property (driving on neighbors road) Negative Easement - right to control or limit the use of another property (not building a third story) Elements for prescriptive easement C claim of right/color of title H Hostile or Adverse use (instead of possession) A Actual N Notorious and Open C Continuous E Exclusive (majority) Some courts keep exclusivity requirement (minority) S Statutory Many states also require that true owner "acquiesce" in the adverse use True owner either knew or should have known and did explicitly give permission, didnt eject either

Community Feed Store, Inc. v. Northeastern Culvert Corp. Prescriptive easement use property for a particular purpose (ex: Driveway) Functions like adverse possession. Elements same as Adverse but related to USE Dont say they own it they just say they use it. Exclusivity no really exclusive because it was used by customers and deliverymen. But court got around it If public used it there would be no exclusivity People had used land in same way for more than 20 years. Presumption of permissive used Doesnt negate hostility. It assumes acquiescence so still considered adverse. If actual permission it would negate hostility requirement under Common Law.

Good faith/Bad faith tension by jurisdiction