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OUTLINE
MAIN PROPERTY TOPICS
I. Adverse Possession
A. People who did not pay for something nevertheless acquire it
B. Applies to real and personal property
C. How to avoid another person from adversely acquiring something they did not actually have/own
II. Estates in land and future interest
A. Conveyance of property over time, as a method of control for parents
B. Limited use right
C. Rule against perpetuity
1. Rule against perpetual control of property by dead people limited to 20 years
III. Chain of title and recording of property interests
A. Title is transferred or taken by successive owners of the property
B. Want to know that you are buying from the true owner
C. Registering concept for all things that are valuable in society want the rest of the world to know
that you own the property
IV. Servitudes (easements + covenants)
A. Burdens underlying owner cannot be pulled back once they have conveyed the property
B. Makes property progressively unmarketable, so they want to clear these of
C. Can arise or be destroyed by AP; can be purchased via transfer
V. Concurrent ownership of property
A. How to create co-ownership
B. Management + termination of co-owned property
CONCEPT OF
PROPERTY
I. PROPERTY
A. Property is a human invention
1. Based on reason, combining law and economics
2. Legal positivism: property exists only to extent that it is recognized by govt
3. Natural Law Theory: idea that certain rights naturally exist as a matter of fundamental justice
regardless of govt action
a. Does not apply to property law
B. Property as rights NOT things:
1. Bundle of sticks can take out certain rights with regard to a particular object, but can still
retain ownership
a. Ex. a person holds legally-enforceable rights in their computers, but do not own the thing
itself
2. Defined by govt legal positivism
3. Rights are relative, not absolute
a. Depends on whether they conflict with others property rights
4. Rights are divisible
a. Can be split among multiple parties (ex. A can have right to use, but B has right to destroy)
5. Property rights evolve as the law changes
a. Stability of title: property rights should be certain and predictable
b. Rights can change as technology changes (ex. with development of planes, landowners no
longer own airspace above their land)
C. Real Property vs. Personal Property
1. Real Property: rights in land an things attached to land
2. Personal Property: rights to moveable items
D. Property Rights
1.
2.
3.
4.
Right
Right
Right
Right
to
to
to
to
Transfer [alienability]
Exclude
Use/Monetize
Destroy
III.
A. RULE OF CAPTURE
1. Definition: property rights established through actual taking first to capture or kill = owner
2. Later extended to natural resources (ex. oil)
a. Benefits: deserving ppl would get the resources
b. Costs: difficult to figure out who was first to possess, esp if land was open w/o drawn
boundaries
3. Pierson v. Post (1805)
a. P knew that D was hunting for a particular fox, but P killed and captured it for himself. Lower
court ruled in favor of D bc D was chasing fox first. P appeals.
i. Held: P wins right to the fox because rule of capture creates certainty and consistency.
Possession belongs to whoever captures or killed it.
THEORY
First Possession
Encourage Labor
Maximize Societal Happiness
(Utilitarian)
Ensure Democracy (Civic
Republican)
Facilitate Personal
Development (Personhood)
B. RIGHT TO PUBLICITY
1. Definition: right to ones self and recognition of that self as property
a. Creation as a source of property (White)
b. Violation of this right when a person appropriates a persons name or likeness to his
advantage
c. Can be violated by use of the name alone
2. White v. Samsung Electronics America, Inc (U.S. Ct. of App, 1993)
a. Ps likeness (robot dressed as Vanna White) was used in a Samsung ad, so P sues under CA
Civil Code, CA common law right of publicity, and federal Lanham Act
b. Held: CA Civil Code = P loses statute limits likeness to actual image of P (narrow)
CA common law = P wins statute limits the CA common law right of publicity
(broader)
Lanham Act = P would need to show that reasonable ppl would actually see it as
her endorsing D
c. Dissent: holding is an overprotection of IP rights stifles creative forces when the law is
supposed to nurture it
THEORY
First Possession
Encourage Labor
Maximize Societal Happiness
(Utilitarian)
Ensure Democracy (Civic
Republican)
Facilitate Personal
Development (Personhood)
3. Dead Celebrities
a. Post-mortem right of publicity is not appropriate considering the five property theories
THEORY
First Possession
Encourage Labor
Maximize Societal Happiness
(Utilitarian)
IV.
RIGHT TO TRANSFER
Right to Transfer
Any owner may freely transfer or alienate any of her property to anyone
Limitations (often for public policy reasons)
o Who can transfer
o What can be transferred
o How it can be transferred
A. Economically important bc it ensures that property is devoted to its most valuable use
B. Property law favors free alienation of property as a general matter
C. When title is conveyed assumed that use and ownership of that land is also conveyed
1. Use and ownership can be considered separate and independent rights
a. Was use AND ownership being conveyed? Or JUST the use rights?
D. Issue: what specific circumstances should alienation be restricted?
E. Cases
1.
a.
P bough land from Native Americans and wanted for U.S. govt to recognize the title
b. Held: D wins. First-in-time discovery rule governs. Here, the British discovered the land,
who then transferred the rights to the land to the US federal govt. Native Americans had no
property rights to give to P even though they were living on the land.
i. Native Americans did not have title to land bc
2.
a.
b.
c.
d.
e.
Ps bodily tissue was used without his consent to manufacture patented product that has
market value of $3 billion
Held: D wins. P did not have right to ownership of his cells, so he did not have right to
transfer them. D acquired ownership of Ps cells when they excised them.
Conversion = strict liability tort, so good faith is irrelevant
Public policy is against ppl selling bodily materials many serious and unintended
consequences
If take too many sticks from the bundle, then you no longer have property
V. RIGHT TO EXCLUDE
Right to Exclude
Right
A. Trespass
1. Definition: any intentional and unprivileged entry onto land in the possession of another
a. Trespass exists despite good faith mistake
2. Developed under enclosure mvmt in 18th century England
3. Reasons prohibiting trespass
a. Protection for owners incentivizes owners to make efficient use of their land; way to
maximize economic value
b. Policy reasons not allowing D to trespass even if no damage occurs is enough to protect
right to exclude
4. Use interest balancing to determine whether there was a necessity for the trespasser to
enter the property
a. Landowners right vs. publics interest to access
B. Privilege
1. Does not constitute trespass
2. Consent
3. Necessity for survival, when fundamental rights are being infringed, etc
4. Implied License/consent
a. Expectation some ppl (ex. solicitors and hunters) have implied permission for limited
purposes
b. In many areas, without No Trespassing sign, there is a right to enter land can overcome
by placing a sign
C. Cases
VI.RIGHT TO USE
Right to Use
Right to use property in any way owner wished, as long as he did not harm the rights of others
Core value of ownership
Consistent with utilitarian theory owner knows best how to use the land productively for the
benefit of all
Limitations
o Nuisance
o Spite fence
o Statutes + ordinances
TEST: trespass vs. nuisance
A.
Private Nuisance
1.
2.
3.
Elements:
a.
b.
c.
d.
e.
Intentional
Nontrespassory
Unreasonable
Substantial interference with
Use of enjoyment of Ps land
Used to resolve land use conflicts law to protect the rights of both P and D (balancing test)
May be inconsistent with the idea of free society
a.
4.
Reasonable Use Doctrine = one must share the resources even if he was the first to
discover the source of water
Trespass vs. nuisance need to determine this all the time!!!
a.
b.
B. Spite Fence: landowner cannot erect and maintain an otherwise useless structure for sole purpose
of injuring or annoying his neighbor
1. Universal view: where structure serves a beneficial and useful purpose no COA
C. Cases
1. Sundowner Inc. v. King (Idaho Sup. Ct., 1973)
a. D built a sign along property line shared with Ps property, blocking 80% of light and air to
Ps motel rooms next door. D claims that it is not a useless structure bc it had advertising
value
2.
b. Held: P wins. Sign is actually a spite fence cannot infringe upon ppls right to breathe
and enjoy sunlight if the fence was built out of spite/malice. Advertising value would have to
be more than value denied to P in order for it to be not deemed a spite fence
i. Ruling does not define the scope of the spite fence rule. Possible remedies are:
A) Enjoin the nuisance
B) No nuisance
C) Enjoin the nuisance, unless pay the other side a certain amt
D) No enjoinment, but have to pay
Prah v. Maretti (Wisc. Sup. Ct., 1982)
a.
P sues D for building house in a location that would cast shadow on Ps house, thus
interfering with his right to sunlight and to use that sunlight as an alternative resource for
energy (P had solar panels)
b. Held: P wins. Private nuisance law is applicable
i. Ps right to access sunlight as source of energy > Ds right to use land unreasonably
impairs use and enjoyment of another
ii. Changing public policies allowed for right to access to sunlight to be recognized
VII.
RIGHT TO DESTROY
Right to Destroy
Right to destroy your own property. Logical adjunct to the right to use
Limitations
o When property to be destroyed has substantial value
o Courts are less likely to allow destruction if it were by decedent by will fewer
restraints if alive
TEST: expressive interests vs. substantial economic/social welfare interests
A. Scope of this right is unclear
1. Intent should matter bc the reason to destroy may actually benefit society more than keeping it
2. Common economic theory: cant destroy property when youre dead bc you dont live with
the consequences of your actions
3. History landmark laws: usually do not express restriction on owners ability to destroy, but
could be implied?
4. Destruction of Animals animals are thought of as property, but there is no right to destroy
them when there is no sense to do so
5. Eminent domain could be used by the city to limit destruction of property
6. Moral rights of artists moral rights = right to prevent current owner from destroying or
significantly modifying artwork
B. Law rarely intervenes to prevent destructions exception: Eyerman (below)
1. Strahilevitz: this may actually hurt society if we dont allow ppl to destroy their property
stifles progress
a. Expressive interests vs. substantial economic/social welfare interests
C. Cases
1. Eyerman v. Mercantile Trust Co. (Missouri Ct of App, 1975)
a. P, neighbors of the decedent, brings suit to enjoin the destruction of the decedents house,
since the decedent had put in her will that she wanted it to be torn down after her death.
Historical landmark regulations were put into the efect after decedent had died.
b. Held: P wins. P has a legally protectable interest that is greater than the interest in
protecting the decedents will which seems to have been made on a whim, so the house
cannot be destroyed.
i. Against public policy to all executor to exercise such great power based on whim of
testatrix
ADVERSE
POSSESSION
I. ADVERSE POSSESSION
A. Definition: when a person who does not own the land but nevertheless acquires it without the
owners consent, through occupation during a long enough period while meeting certain conditions
1. Ex. IF A occupies Bs land for long enough period while meeting certain conditions A acquires
land without Bs consent
2. Long enough period is determined by statute
3. AP usually happens by mistake
4. Prescriptive rights/easements can be acquired via AP
5. If you sleep on your rights to a property, then you lose it
6. AP can only grant either a FSA or use rights [prescriptive easements]
B. Tacking
1. Possible to tack on time to establish AP as long AP(2) can show he was voluntarily conveyed
land from AP(1) privity
a. Privity: voluntary transfer of property by deed or will from one possessor to another
i. Good faith can show privity
ii. Partial interest
iii. Spectrum: marginal connection btwn successive APers w/o actual transaction transfer
of deed
b. Example: Statute says 10 years to establish adverse possession AP occupies land for 5
years, conveys land to AP(2), AP(2) lives there for another 5 years, and AP(2) acquires land
via adverse possession
i. Original possessor would actually want the time period to restart once AP conveys to
AP(2)
A) But principle is that original possessor had such a long time to check their own
property and to kick someone of should have asserted right to the land earlier
2. Makes sense where there is color of title
C. Airspace: most states say that ppl have ownership of airspace 500ft above their property
D. Subsurface: modern view is that ground rights limited to only as far as use is
reasonable/foreseeable by the owner
2.
3.
4.
5.
6.
Actual Must use in same manner as reasonable person would given its character, location, and
nature
o Gathering and removing natural resources = actual
o Recreational use actual possession
Exclusive cannot be shared with owner or public (no third party)
Open and notorious possession must be visible and obvious to put owners on notice that
their title is being challenged
Adverse and hostile not applicable if possession authorized by owner; could be based on
good faith, state of mind being irrelevant, or bad faith depending on the state
o Hostile = intent to possess, occupy, control, use and exercise dominion w/o true owners
consent
o Claim of right: some mindset is reqd, but cts often say that objective conduct
demonstrates this
Continuous continuous as a reasonable owner's possession would be (sporadic use is OK if
reasonable owner would also use it sporadically)
For statutory period 5-40 years, but usually 10, 15, or 20 years
1. Standards of AP based on color of title are easy to meet in many states (shortened time period,
able to acquire more land) but having deed establishes good faith that you honestly believed
you had ownership to whole property
2. If APer comes onto land w/ deed for whole property but only adequately occupies a small portion
of it, the APer will acquire the whole property
3. Color of title actual title nor claim of title
G. Types of Notices
1. Actual notice when you are told about it
2. Record notice a reasonable person would have looked at the record
3. Inquiry notice reasonable person would ask the appropriate person
H. Justifications for AP
1. Preventing frivolous claims
a. AP bars lawsuits based on stale, unreliable evidence and protects occupants from frivolous
claims
b. Gives occupant security of title encourages productive use of land
2. Correcting title defects
a. Lengthy possession serves as proof of title where there may have been technical mistakes in
the conveyance of title to land
3. Encouraging development
a. Encourages economic development by reallocating title from idle owner to an industrious
squatter
b. This is a major theme in real property law develop land for productive use
4. Protecting personhood
a. Property that one has enjoyed as used as his own for a long time = extension of that person
should be protected
I. Cases
1. Gurwit v. Kannatzer (Missouri Ct of App, 1990)
a. P acquired parcel of land that actually belonged to his neighbor via AP. He was shown the
land when he bought the property from the previous owners, but the land was not actually in
the deed. P won quiet title action, but D appeals. P has minimal activities
b. Held: P wins. All elements of AP proven. Hostility proven when P put out no trespassing
signs and treated the parcel as if it belonged to them (in the same way that D would have
used the land)
2. Van Valkenburg v. Lutz (NY Ct of App, 1952)
a. P bought triangular tract of land that was used by D for over 30 years. D acknowledged Ps
title to land but wanted an easement for the road that he built to get to paved road. D claims
AP D had extensive activities
b. Held: P wins. D failed to show actual occupation for over 15 yrs, exclusivity, and possession
under claim of title (ie hostile mindset)
i. NY law reqd CL elements of AP as well as addt reqmt (ie claim of title) to show AP
A. Adverse and hostile element is most difficult to prove, so most jurisdictions say that intent is
irrelevant
1. Good faith AP must have good faith belief that she is owner of land
2. Bad faith AP knows she is not the owner but intends to take title anyway
B. Land Piracy court recognizes your title if you purposely do the minimum reqmts to acquire via
AP in juris where intent does not mater
C. Good Faith now normally not required in most jurisdictions, but most imply it anyway
D. Cases
1. Fulkerson v. Van Buren (Ark Ct of App, 1998)
a. P asserts claim o land that D occupied for 13 years. D was a church group that changed the
nature of the property. P did asked that D to leave property in 1994 but D refused. Lower
court said AP to D. P appeals.
b. Held: P wins. Not continuous for more than 7 years and not with intent to hold against the
true owner. Intent was not clear and distinct and did not begin until D acknowledged Ps
title to land (and this was fewer than 7 yrs ago), since D was unsure about who owned the
land when they first started occupying the land.
IV.
A. Disabilities
1. If landowner is disabled, AP period can be extended, making it more difficult for APer to acquire
land
2. Types of disabilities:
a. Imprisonment
b. Minority (under age of majority)
c. Lack of mental capacity
d. Military service or those who reside out of state [depends on the state]
3. Effect of disability on statutory period varies by state, but can include:
a. Suspend running on the period until disability is removed
b. Provide a limited period of time after the disability ends within which suit must be brought
[most states]
c. Only disability that exists at beginning of AP period will extend statutory period
d. Death ends disabilities
e. Disabilities cannot be tacked and cannot shorten the std period for AP
B. Identity of the Parties
1. APer only acquires whatever interest the owner has in the same property
a. Ex. if owner had a life estate, APer receives only a life estates as well
2. AP not available against owner who does not hold the present right to the possession of land
3. Cannot AP against state of local govt unless land is used for proprietary or nonpublic
purpose
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2. Discovery Rule
a. SOL focuses on owner in record
i. Owner must be diligent in looking for property actively searching vs. just thinking
about it
ii. When owner stops being diligent, then SOL begins to run
b. SOL begins only when owner discovers (or reasonably would have discovered) where chattel
is and stops being diligent about looking for it(?)
c. More holistic bc it takes into acct both sides facts
d. Issues
i. Definitional doubt dont know what constitutes diligent
ii. Predictional difficulty
4. UCC 2-403
a. General Principle: cannot convey more than what you have
b. If person has voidable title, can transfer a good title to a good faith purchaser for value
i. Good faith purchaser = gives valuable consideration to an item without knowing about
its adverse claims
ii. Voidable = in btwn void and full title, if someone with superior title comes alone, then
property can be taken away
c. If entrust a possession of goods to a merchant who deals in goods merchant has right to
transfer all of the rights to a buyer in ordinary course of business
B. Cases
1. Reynolds v Bagwell (OK Sup Ct, 1948)
a. Ps violin was stolen over 5 years prior to suit and seeks to reclaim it from D, who bought it
from someone who had acquired it from a thief
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b. Held: P wins. SOL (2 yrs in OK) bars P from recovering violin, P was acting in good faith,
use of violin was open/notorious bc daughter had used it constantly in violin class
i. Common Law Rule
ii. If P acquired violin through fraud/concealment probably no AP
2. OKeefe v. Snyder ( NJ Sup Ct, 1980)
a. Ps paintings were stolen and he found them in an art gallery about 20 yrs later. Paintings
were, for the most part, concealed bc they were in Ds home. P sues to recover paintings.
b. Held: D wins. AP occurs here based on discovery rule. SOL began when P knew or should
have known where the violin was. The owners diligence further(?) delays the start of SOL
i. Burden shifts to owner to show that there was diligence in trying to find the chattel
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Conveyance
Method
In other words
Parties
Action
Deed
Will
Inter vivos
Testamentary transfer
Grant/convey
Devise
Intestate Succession
Grantor grantee
Testator/Testatrix
Devisee
Estate Heirs
Descending by
operation
13
2. forever and ever = not words of limitation; shows intent to give entire estate in fee simple
3. to G, its successors, and assigns = describes the estate being granted as a fee simple
B. Words of Purchase = describes the grantee
C. Cases
1. Cole v. Steinlauf (Conn. Sup Ct of Errors, 1957)
a. P agreed to buy real estate from D, but the contract said that if there is a defect, P can reject
the deed and be repaid all sums, P found defect in previous deed in that it contained no
words of limitation, so its unclear whether he was buying a fee simple. P tries to monies
back, but D refused.
b. Held: P wins. Since words of limitation were missing, its unclear what type of estate P
was buying. Lack of his heirs make it so that Ds chain of title only runs to the grantee. P
wanted a fee simple, but D didnt have this to convey. D only had a life estate (and his
assigns forever)
14
3. Future interest holder wants property to be maintained in its original condition so that it wont
be destroyed when he gets it
B. Issues with Life Estates:
1. Not enough legal protections for the future interest holder
2. Present life tenant has not incentive to improve the value of the property past her lifetime
3. Waste doctrine exists to protect the future interest holder from harms the present life tenant
does to the property
C. Cases
1. White v. Brown (Tenn. Sup Ct, 1977)
a. I wish Evelyn White to have my home to live and NOT to be SOLD is in testatrixs will.
Ambiguity issue: is this a FSA or life estate to White?
b. Held: P wins. This is a FSA bc testators intent and rules of construction support this
conclusion.
i. Not to be sold acts as a restraint of alienation, and cannot be applied to life estates
thus, this is FSA
2. Woodrick v. Wood (Ohio Ct of App, 1994)
a. P, future interest holder, wanted to enjoin P, present life estate holder, from razing the barn.
P says barn is worth $3200, but D says property can be made more valuable if used as
residential property.
b. Held: D wins. Present interest holder can make changes if it improves the property
i. Ameliorative waste here bc destruction for improvement
15
1. CL: future possessory interest could only be transferred through intestate succession to holders
heirs would make the market more marketable
2. Need to figure out the fair market value in order to figure out the future interest
E. Condemnation Periods: holder of the fee estate receives all condemnation proceeds on the
theory that such a contingent future interest is highly unlikely to become possessory
F. Not subject to waste bc future defeasible fee interests are too contingent, speculative, uncertain,
insubstantial to qualify for protection
G. Statute of Limitations
1. Fee simple determinable = SOL limitations period begins to run as soon as it ends
2. Fee simple subject to condition precedent = FSSCS continues until grantor exercise right of
entry and SOL starts then
H. Laches = Ps unreasonable delay in asserting an equitable claim causes prejudice to the D
I.
Cases
1. Marenholz v. County Board of School Trustees of Lawrence County (Ill. App Ct, 1981)
a. Deed conveyed land for schools use. Deed said land to be used for school purpose only,
otherwise to revert to Grantors herein. After several years, the grantor died and the school
was closed and used as storage.
16
b. Held: deed was a fee simple determinable whose interest automatically reverted back to
original grantor
i.
First and second phrase looked at together = FSD; if look at it alone, doesnt look like
FSD
2. Metropolitan Park District v. Unknown Heirs of Rigney (WA Sup Ct, 1965)
a. P seeks quiet title of land via AP that Rigney had owned for years. Rigney conveyed land to
Tacoma Light and Water company for water supplying services and noted that owner has
right to re-enter land if land stops being used for water supply (fee simple subject to
condition subsequent). Use for water supply has been stopped for years, much longer than
SOL
b. Held: P wins. Even though it was a fee simple subject to condition subsequent, the SOL to
re-enter land has expired. Land was not even being used for the violated purpose nor for
the real purpose.
V. REMAINDERS
A. Requirements (need both)
1. Capable of becoming possessory immediately upon expiration of prior estate
a. Possibility of possession = OK as long as future interest holder might and is capable of
satisfying condition
Does not divest (cut short) any interest in a prior transferee
a. "To B for life, then if D becomes president, to D" D has remainder; B's life estate needs to
end before D gets estate
b. "To B for life, but if D becomes president, to D" D has executory interest; D will cut short
B's life estate if becomes pres.
B. Freely alienable
C. Ambiguity:
1. Presumption is that it is a vested remainder
2. But need to look at the exact language used in the deed/will
2.
Contingent Remainder
Requirements:
o Given an unascertainable person, OR
o Subject to a condition precedent
Cannot be conveyed by deed or will
Alienable, devisable, descendible
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VI.EXECUTORY INTERESTS
A. Future interest in transferee that must divest another estate to become possessory
1. Exact opposite of a remainder
a. Can become possessory immediately after the expiration of the prior estate OR
b. Can divest any interest in prior transferee
2. Alienable, devisable, descendible
Springing executory interest
Divests the transferor [original owner]
o O conveys "to B for life, then one year after B's death, to D and his heirs"
B = life estate
D = springing executory interest bc D's interest will divest O's interest [cut short]
D not capable of becoming possessory at the expiration of B's life estate
B.
C.
Rule was created as a compromise between 1) landowners who wanted to create conditions on
future interests in transferees and 2) commercial interests to ensure that title of land was freely
marketable
Applied to:
1.
2.
3.
Contingent remainders
Executory interests
18
3. Some life in being = someone who was alive and afects vesting in some way; NOT afterborn ppl
a. Often use life of healthy infant as the measuring life in order to extend the time period of
control as much as possible
b. Does not include corporations, partnerships, and govt entities
4. If void for one member of class, then it is void for the entire class
a. EXAMPLE: Vested remainder subject to open: could be void for the entire class bc of an
unborn decreasing the future interests of those in the class later on
G. Steps to Take when Applying the Rule:
1. ID contingent interest
2. List the lives in being [bracket the future interest that RAP applies, strike whatever did not
survive and read whats left]
3. Consider whether anyone can be born who might afect vesting
4. Kill the lives in being at some future date and add 21 years
5. Is there any possibility that the contingent interest will vest after this point?
a. Yes void
b. No valid
H. CASES
1. Jee v. Audley (1787)
a. unto my niece Mary Hall and the issue of her body and in default of such issue to the
daughters then living of John and Elizabeth Jee Are the futures interests in living Jees
daughters void under RAP?
b. Held: Yes, Jees daughters future interests are void because:
i. There is a possibility that Mary Hall may have children and the daughters interest may
be not vest 21 years after Halls death
ii. John and Elizabeth Jee may have an after-born daughter, and since that after-born was
not alive during this conveyance, it would make the daughters future interests void
(vested remainder subject to open)
A) would make that
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PRACTICE HYPOS
Pg. 344(d)
(1) O conveys to B and his heirs so long as the land is not used as a nightclub
(2) O devises to C and her heirs, but if Boston becomes a state then Os heirs have the right to reenter and retake the estate
(3) O conveys to D for life, then to M and her heirs while the well continues to provide water.
(4) O conveys to E and her heris provided that alcohol is never served on the premises
(5) O conveys to First Baptist Church provided that the land is used as a church, then to Google Inc.
Pg. 353(b)
(1) O conveys to A for life, then to B
(2) O conveys to C for life, then to D and his heirs if D lives to the age of 30.
(3) O conveys to E for life, then to Fs children and their heirs.
(4) O devises to G for life, then to H, but if H doesnot survive G, then to L.
(5) O conveys to J for life, then to K for life, then to Ls children. Assume that L is alive and has one
child, M.
Pg. 356
(1) O conveys to A 15 years from now.
(2) O devises "to B for life, then to C, but if D should return to New York, then to D"
(3) O conveys "to E when E marries"
(4) O devises "to F as long as no alcohol is served on the property and if alcohol is served there, then
to Alcoholics Anonymous
(5) O conveys "to G for life, and then to H if H becomes a lawyer"
Pg. 364, 373
O conveys "to C if anyone finds a cure for cancer"
o
O = fee simple subject to executory limitation
o
C = springing executory interest (bc divests grantor's interest) in FSA
o
C's interest cannot be logically proven to occur within 21 years of O or C's death void
when created
Rule invalidates contingent interests that might vest too late, outside perpetuities
period
O conveys "to B for life, then M's first child to reach 30". Assume M is childless
o
O = reversion
o
B = life estate
o
M's first child = contingent remainder in FSA void
Void bc when B dies, M's first child might not be 30
O conveys "to B for life, then to M's first child to reach 18". Assume M is childless
o
O = FSA
o
B = life estate
o
M's first child = contingent remainder in FSA valid
Valid bc if M has children, at least one will be 18 within 21 years of her death will
vest
20
21
CONCURRENT
OWNERSHIP
I. CONCURRENT OWNERSHIP
1. Definition: when more than one individual owns a single property at the same time
2. All co-tenants have equal rights to use and possess the entire property
Joint Tenancy
Interest
Undivided, fractional
[Proceeds in sale will be
divided according to
proportionate share]
Undivided
[Right of Survivorship - when
one tenant dies, the other
absorbs that tenant's interest]
Undivided
Rights
Transfer
Freely alienable,
devisable, descendible
title
Right of survivorship
destroyed
Grantee becomes tenant
22
in common w/ other
concurrent owners]
Other
Notes
- Presumption when JT
is not explicit [no right
of survivorship
language]
- Is already like a
severed joint tenancy
missing tenancy in
common
If one joint tenant
tenants as rights of
survivorship, and NOT as
tenants in common
o
High risk of
aversion approach
aversion from
litigation costs
JT right as possible
Safe from secret severance
IV.
23
VI.
SEVERANCE
$$$$
Creditor
$$$$
Debtor
Creditor
Title
3. Lien theory: mortgage is lien to secure repayment of debt does NOT sever JT (unities
preserved)
Promise to pay
Debtor
$$$$
Creditor
$$$$
Debtor
Creditor
Release of promise
D. Secret Severance
1. Some states allow joint tenants to secretly sever the JT and then devise her interest to another
person
E. Divorce usually severs JT
1. Unities analysis divorce = no co-own property = JT severed
2. Intent analysis assumption is that parties do not intend to continue the JT (but not always
true)
V. PARTITION
A. Partitions end the co-tenancy and distributes its assets accordingly
B. Partition in Kind
1. Division of land into cotenants respective fractional shares
2. Doesnt force sale on unwilling cotenants + leaves them holding same estate as before
24
C.
1.
2.
3.
Entire estate sold and proceeds appropriately split when land cannot be fairly divided
Should be used narrowly and sparingly bc it interferes with property rights
Most common method, though not preferred nor the presumption
D. CASES
1. Ark Land Co. v. Harper (West Virg, Sup Ct, 2004)
a. P has 2/3 interest in property co-owned with D and wants the rest of it for coal-mining.
b.
D
refuses to sell.
Held: partition by kind (what D wants) is ordered even though P could get more economic
value out of it.
i. Balancing of the factors to determine prejudice finds that partition in kind is appropriate
1. EXCEPTIONS: Ouster MUST pay rent, AP, possibility of reverter, right of entry
2. Each co-tenant must pay his proportional share of expenses
B. Ouster - when a co-tenant in possession refuses to allow another co-tenant to occupy the property
1. Ouster is liable to the ousted co-tenant for her pro-rata share of rental value of ousters
C.
occupancy
Rents and Profits
1.
Each co-tenant is entitled to his proportionate share of all rents and profits derived from the
land
D. Repairs
E.
F.
1.
2.
3.
Improvements
1.
CASES
1.
a.
b.
P and D owned house in TIC (each 50%). P lived in it alone for 18 yrs before selling and asks
D for reimbursement for his share of rent
Held: P is not entitled to reimbursement from D for all repairs/improvements made on the
property. Whatever D owes to P should subtract the reasonable amount that P would have
owed to D as rent, since D was not occupying the property
25
RECORDING
SYSTEM
I. INTRO TO RECORDING SYSTEMS
A. Common Law - anyone who received his interest first prevailed (bc grantor could only convey
title once)
B. Modern Recording allows anyone with an interest to record a deed to give notice of his rights to
the world
1. Purpose: to assert property rights and to avoid disputes
2. Bona fide purchaser diligent buyer who conducts a careful search of public records and finds
no title defects
II.
RECORDING INDICES
Grantor-grantee index
Tract index
A. Issues
1. AP may not be in the public records
2. Recording system = complex and cumbersome
3. Even if document is recorded, it may not give constructive notice
B. Mother Hubbard Clauses- clause states the property to be conveyed generally (ex. all grantors
property)
1. Valid as long as subsequent purchaser had actual knowledge
C. CASES
1. Luthi v. Evans (KS Sup Ct, 1978)
a. Tours was conveyed all grantors property in a certain county (Mother Hubbard) which did
not specify the Kufahl lease. Kufahl lease, specifically, was conveyed to Burris few years
later. Dispute in who owns the Kufahl lease. Tours claims there was constructive notice,
Buriss says no constructive notice.
b. Held: Burriss wins, and gets title to Kufahl lease. Kansas statute requires conveyances to
be stated with specificity to avoid problems such as this, and Tours violated this. issue
was IMPROPER RECORDING
III.
RECORDING ACTS
First in Time
Purchaser whose interest was created first prevails
EXCEPTION: bona fide purchaser
Race
Purchaser who records first prevails
Even if she knows about previous unrecorded interest
North Carolina + Louisiana
Notice
26
Race-Notice
Subsequent bona fide purchaser who records first prevails
Purchaser takes without prior notice AND records first
A. Invalid Acknowledgements
1. If unacknowledged deed is not recorded not constructive notice
2. If valid on its face but has hidden flaw treated as validly recorded
B. Forgery and Fraud
1. Forged Deed void; no interest transferred to grantee
a. Subsequent grantees receive nothing bc those conveyances would also be void
2. Deed induced by fraud voidable by grantor
C. Shelter Rule
1. Allows a non-subsequent bona fide purchaser to prevail even though he knew that a prior
conveyance in the chain of title was not recorded
2. Bona fide purchaser is allowed to transfer his protection to a later grantee
D. Title Registration
1. An alternative to current methods of recording, where the govt to maintain registry of title
2. Issue is that its not mandatory and expensive to implement
E. CASES
1. Messersmith v. Smith (ND Sup Ct, 1953)
a. Dispute over ownership due to multiple conveyances and late recording
b. Held: all transfers are invalid because the original transferor didnt have the right to transfer
its interest in the property anyway bc it had quitclaimed its interest to another party before
all of these transfers
IV.
A. If a recorded document cannot be found in a standard title search considered to be outside the
chain of title and provides no notice to subsequent buyers
B. OUTSIDE CHAIN OF TITLE
1. Wild Deed
a. B, does not record. B C. C records. S D. D records
b. BC conveyance = unable to be captured by a reasonable searcher
c. Previous deed is not properly recorded + does not provide notice D owns property
2. Deed recorded too late
a. S B, does not record. S C, who has actual knowledge of B. C records. B records. C
D, records.
b. D will not discover B's interest bc the S-B deed was recorded at a point when D is no longer
searching under S's name
c. S-B deed recorded too late + does not provide notice D owns property
3. Deed recorded too early
a. S owns Greenacre. BC, records. S B, records. BD, records
b. D would not find the B-C deed bc he would have stopped looking under B's name at that
point.
c. Deed recorded too early D owns property
4. Deed from a common grantor
a. S owns Greenacre and Forestacre. S conveys Greenacre to B, granting easement to cross
Forestacre for purpose of accessing Greenacre. B records. S conveys Forestacre to C, who
is not aware of easement. C records
b. C will only look at conveyances related to Forestacre only, so he will not know about the
easement since it is part of B's deed relating to Greenacre
C. Recording acts cannot give priority to deed recorded before if it shows no conveyance from a record
owner
27
D. CASES
1. Board of Education of Minneapolis v. Hughes (Minn. Sup Ct, 1912)
a. Sequence of Events
i. CH Hughes (no record) + grantee name left blank
ii. CH D&W (no record)
iii. D&W Board (deed recorded too early)
iv. Board records
v. Hughes inserts name as grantee + records
vi. D&W records
b. Held: Hughes prevails bc his deed became operative when his name was filled in, and he
was a subsequent purchaser in good faith for valuable consideration, whose conveyance was
first duly recorded
V. NOTICE
A. In notice and race-notice jurisdictions subsequent purchaser gains priority only if takes interest
B.
w/o notice
Types
1.
2.
3.
28
EASEMENTS
I. Important for encouraging productive use of land
II. License = informal permission that allows the holder to use land of another for a particular purpose
A. not an interest in land and can be revoked at any time
III. Profit = right to enter land to remove minerals, gravel, timber, game, or other natural resource
TERMINOLOGY:
Property
Dominant tenement/land: benefited from easement
Servient tenement/land: burdened by easement
Parties
Dominant owner: easement holder
Servient owner: owner of servient tenement [easement grantor]
Appurtenant or in gross
Appurtenant easement: benefits easement holder in her use of specific parcel of land
(dominant tenement)
Benefit is attached to the land when dominant land is conveyed, then the easement is
conveyed as well
Easement in gross: personal to the holder not connected to holder's use of any particular
land
Benefit is not tied to the land, but it is tied to the individual
Dominant owner benefits regardless of ownership of specific land
Personal easements in gross are OK, but are not transferrable
Commercial easements in gross are transferrable burden runs to successors even
though it's not tied to the land
Affirmative or negative
Affirmative easement: allows holder to perform an act on the servient land [most common]
Negative easement: allows holder to prevent servient owner from performing an act on the
servient land
29
PRESCRIPTIVE EASEMENT
1. Elements
a. Open and notorious
b. Adverse and hostile
c. Continuous
d. For statutory period (usually the same as AP)
30
31
of the easement and in fact the easement was abandoned + terminated when US stopped RR
service
XII.
A.
B.
C.
NEGATIVE EASEMENT
Dominant owner prevents servient owner from performing an act on sevient land
Private restrictions may encourage productive use of land real covenants/equitable servitude
Conservation Easement restricts development of land to preserve open space
CC&Rs must be recorded if want to subdivide land into lots with restrictions
A. Running with the land = restrictions that are attached to the land and are applied to successors,
regardless of who the owner is when analyzing this, look at whether the burden and benefit runs
individually
Elements
Statute of Frauds
Intent to bind successors
Touch and concern
Notice
Horizontal Privity
Vertical Privity
4. Deep Water Brewing v. Fairway Resources (WA Ct of App, 2009) benefit ran to the easement
holders successors bc all of the elements were met, so P could enforce the burden on D
B. EQUITABLE SERVITUDES
1. Definition: written promise concerning use of land that benefits + burdens both original parties
and successors
2. Remedy: injunction
3. Common Plan Exception: all lots are burdened and benefited by uniformed restrictions even if
the restrictions do not appear in the chain of title of every lot
Elements
Statute of Frauds
Yes
Yes
Yes
No
No
Yes
Yes
No
No
No
4. Tulk v. Moxhay (Ct of Chancery, 1848) P can get injunction against D for failing to keep up the
garden, bc the burden ran to D (all elements met)
III. RESTATEMENT APPROACH
A. Combines real convenat with equitable servitude
B. Elements:
1. Owner of property to be burdened intends to create servitude
2. Owner enters into K or conveyance that satisfies Statute of Frauds
3. Servitude not arbitrary, unconstitutional, unconscionable, or violative of public policies
a. Ex. cannot unreasonably restrain alienation
4. [VP only required for positive covenant in certain situations, but never for negative covenant]
C. Do not need touch and concern and HP
IV. COMMON INTEREST COMMUNITIES
A. All properties are subject to comprehensive private land use restrictions regulated by HOA
B. Created by declaration
1. HOA
2. CC&Rs
3. Assessments (HOA fees)
4. Ownership rights to each unit owner (FSA for each unit)
C. Benefit to living in CIC with CC&Rs = can enforce restrictions on your neighbor
D. Defenses to enforcement of CC&Rs
1. Unreasonableness
a. Nahrstedt v. Lakeside Village Condo Association CC&R prohibiting cats is upheld because it
is not unreasonable. It was also recorded in the declaration of the master deed, so its more
likely to be enforced
2. Abandonment
a. Burden is on violator to prove that a reasonable person would believe that CC&R was
abandoned
i. Number, nature, and severity of violation
ii. Prior enforcement eforts and possible realization of benefits (inconsistencies, purpose)
iii. Non-compliance defeats the purpose of uniformity
b. Benefit high + enforcement low + scattered # of violations could go either way
c. Benefit low + enforcement high + scattered # of violations likely that CC&R abandoned
d. Fink v, Miller (Ct of App, Utah, 1995) CC&R deemed abandoned bc significant number have
already violated it and enforcement is inconsistent
3. Changed conditions
a. TEST:
i. How much change has occurred in the community?
ii. How much of a drop of benefit has occurred?
b. Original purpose of the restriction has not been altered or benefit still exists for D no
changed conditions
c. Changed conditions must take into account both adjoining and restricted tracts of property
d. Vernon Township Volunteer Fire Dept v. Connor (Penn Sup Ct, 2004) firehouse cannot build
a social house that sells alcohol bc of a Restrictions Agreement on land, and conditions have
not changed substantially enough to allow alcohol to be sold
E. CC&Rs can be terminated by:
1. Condemnation
2. Estoppel
33
3.
4.
5.
6.
Merger
Prescription
Merger
Laches + unclean hands (but not available when equitable relief is sought)
NUISANCE
I. PRIVATE NUISANCE
A. Definition: non-trespassory invasion of anothers interst in the use and enjoyment of land
B.
(Restatement Second)
Requirements
1.
2.
3.
4.
5.
a. Gravity of harm test: causes substantial harm regardless of social utility of the conduct
b. Restatement test: gravity of harm outweighs utility of conduct
Use and enjoyment of land
C. Remedy
1. Injunction (usually) but result would be that action could keep being brought against the
2.
3.
nuisance maker
Money damages
a.
Allow D to develop way to eliminate nuisance (but this may take too long or may never even
happen)
34
1.
2.
3.
Two Questions:
a. Could Ds conduct create nuisance?
b. Did Ds conduct create nuisance?
Gravity of harm > utility of actors conduct unreasonable
a. Gravity of harm
i. Extent of harm involved
ii. Character of harm involved
iii. Social value that law attaches to type of use or enjoyment invaded
iv. Suitability of the particular use or enjoyment invaded to the character of the locality
v. Burden on the person harmed of avoiding the harm
b. Utility of actor's conduct
i. Social value that law attaches to the primary purpose of the conduct
ii. Suitability of the conduct to the character of the locality
iii. Impracticality of preventing or avoiding the invasion [here, D could use other forms of
heating]
Thomsen v. Greve (Neb Ct of App, 1996) P wins injunction against D who was using their woodburning stove that caused an odor to seep into Ps house and stay. Nuisance was enough to
keep P away from their house. gravity of harm > utility of conduct (esp since D has other
alternatives for heat)
TRANSFERRING TENANTS
INTEREST
I. TENANT TRANSFERS
A. Tenant and landlord are allowed to transfer their interests to third parties
B. Transfer by:
1. Assignment
2. Sublease
C. Privity of contract: lease = contract so tenant and landlord have rights and duties under contract
law
D. Privity of estate: lease = conveyance of an estate in land; related to the land itself regardless of
contract law
1. Can only exist once btwn 2 parties
35
III.
LANDLORD
TENANT
Duty to
Substitute
No Duty to
Substitute
Duty to Mitigate
Most tenant-friendly
Both parties need to minimize
costs/damages so tenant can
more likely to get out of lease
(Minority Rule) modern trend
Who would do a better job of
substitution?
Tenants to pay for mitigation
Fewer administrate costs
(Majority rule)
No Duty to Mitigate
Who would do a better job of substitution?
Not against public policy
Landlord must be reasonable in
discretion
Must be in clear lang so tenant knows
what he is getting into
Most landlord-friendly
No replacement needs to be found, but
landlord is still able to collect rent
B. Kendall v. Ernst Pestana Inc. (CA Sup Ct, 1985) clause in lease contract was an unreasonable
restraint on alienation bc it prohibited lessee from subleasing without lessors prior written consent
1. Greater the restraint, the greater the justification must be for it to be reasonable
2. Good faith and fair dealing inherent in any contract
36
origin
Cannot discriminate against anyone in the terms + conditions based on the characteristics listed
above
Cannot make, print, or publish notice of any preference/limitation based on above characteristics
C.
D. Cannot discriminate based on handicap of the buyer/renter
E. Discrimination includes: refusing to allow reasonable modifications to premises and
accommodations in policies when necessary for equal opportunity and full enjoyment of the
dwelling for handicapped and everyone else
37
LAND USE
REGULATION
I. BASICS OF ZONING
Public welfare = nuisance prevention = police power govt doesnt need to pay
Govt will always claim that their actions are for nuisance prevention
Public welfare = public good just compensation
1. Zones = where diferent uses were permitted, with limits on size and location of bldgs.
2. Standard State Zoning Enabling Act allows govt to adopt zoning ordinances
3. Test for Constitutionality = rational basis
a. Strict scrutiny used when there is a suspect class or a fundamental right infringement
C. CASES
1. Village of Euclid v. Ambler Realty Co. (US Sup Ct, 1926) zoning laws that restrict the way that P
wants to use his land and therefore preventing him from using his land in the most valuable way
possible are constitutional bc govt is acting in within its police powers THIS IS ABOUT
CONTROLLING USE (NO LONGER FAVORED)
38
EMINENT
DOMAIN
I. EMINENT DOMAIN
A. Definition: allows govt to take property from private owner who refuses to sell voluntarily
1. Limitations: ONLY for public use + just compensation given
B. Condemnation = process of ED
C. Public Use satisfied when
1. Land is physically used by public or govt employees + serves a public purpose
2. Economic development
D. Compensation = fair market value, or amt a willing buyer would pay a willing seller on the open
market
E. CASES
A. When govt takes property and it will be used physically by public (hwys) or govt employees
(military installation)
B. Narrow Definition of Public Use physical use by members of the public (P argues)
C. Broad Definition of Public Use provides some public benefit regardless of who physically
uses it (govt argues)
D. CASES
1. Poletown v. Detroit (Mich. 1981)
a. ED constitutional bc public use = stimulating economy and revitalizing area when giving
taken land to GM for new factory LATER OVERTURNED, but after Poletown already
destroyed
2. County of Wayne v. Hathcock (Mich Sup Ct, 2003)
a. ED not constitutional bc taking land to give to private entitles to build a technology business
park is NOT public use none of the allowed public uses satisfied
3. Hawaii Housing Authority v. Midkif (US Sup Ct, 1984)
a. Condemnation is constitutional to address economic blight bc passes RB end: regulate
oligopoly + means: redistribution of fee simple to correct deficiency in real estate market;
broad definition used here
4. Kelo v. City of New London (US Sup Ct, 2005)
a. ED justified even though taking is to give to private company for building of a new facility bc
taking to improve economically blighted area = OK
39
REGULATORY
TAKINGS
I.
Eminent
Domain
Regulato
ry Taking
Just
Compensation?
Yes
Act
No
Inverse
Condemnation
Condemnation
40
1
2
1.
2.
Physical use
Occupation of property
Permanent
a.
E.
Taking here bc elements of PPO have been met under the statute that prohibited P from
interfering with installation of cable TV lines on his property
1.
a.
b.
Loretto says that it MUST be 100% loss otherwise, do Penn Central factor balancing
analysis
Determined by looking at fair market value v. value in eyes of the owner
2.
a.
Lucas Analysis
1 100% loss?
2 IF yes, was the statute controlling a nuisance (background common law)?
a If no (Lucas) taking, compensation required
i
Penn Central analysis
1 Character of gov't action should be analyzed under this prong [not discussed in Lucas
bc P already conceded to this]
a Illegitimate gov't action
2 Reciprocity of advantage
b If yes no taking, compensation not required
i
Gov't action is legit
2 IF no Penn Central analysis
41
F.
1.
Exactions requires developer to provide land or fees to ofset the impacts of the project as a
condition of discretionary land use approvals
a. Shifts costs for new residential development to developers in hopes they will pass it on to
homebuyers
TEST: Takings if
There is no essential nexus btwn exaction and legit
state interest
Exaction is not roughly proportional to projects impact
2. Nollan v. CA Coastal Commission (1987) - approval on condition that owners grant easement
allowing public to cross lot to get to the beach bc of concern that house was going to block view
of beach from the front
a. No essential nexus btwn view problem and easement allowing public to walk along beach
behind the house taking
3. Dolan v. City of Tigard (1994)- what degree of connection is req'd btwn impact and exaction?
a. Approved expansion of P's store on condition of conveyance of 2 portions of land:
i. Land in floodplain of adjacent creek
ii. Land used as link in pedestrian/bike path
b. Essential nexus met but no evidence that req'd conveyance is related in nature and extent
to impact of development must be roughly proportional
c. Req'ment that owner provide land for path must be roughly proportional to amt of increased
customer traffic that store expansion would produce
42