Property Outline

Saturday, April 05, 2008

5:52 PM

Formalism of doctrine should not cabin the way

you litigate these cases - just because you can't
tie facts to a particular doctrine doesn't mean
they're not relevant

Important to see how you can take the same case and use different aspects to
apply to your own case - the technical/definite holding on one hand, and the
instrumental/underlying holding on the other hand
- There is often a conflict between the technical holding and the instrumental aim
- Sometimes the technical doctrine will trump, but judges often care about the
underlying result as well
Make sure that you are looking at the empirical arguments made by the court and
trying to figure out if they make sense - is the instrumental effect of the rule that
the court adopts really what they say it is? Challenge the court's assumptions,
come up with rebuttals

I. CREATION AND ACQUISITION OF PROPERTY

A. Capture and Possession
i. POPOV v. HAYASHI (2002)
i. Court is trying to figure out the true owner of the baseball - general rule - person who possess the ball and intends to control it has
ownership
ii. New rule the court announces:
"Where an actor undertakes significant but incomplete steps to achieve possession of a piece of abandoned personal property a nd
the failure to continue the effort is interrupted by the unlawful acts of others, the actor has a legally cognizable pre -possessory
interest in the property. That pre-possessory interest constitutes a qualified right to possession which can support a cause of
action for conversion."
iii. Illustration of the theories/ideas that underlie what we as a society think possession means - application of older/philosophical rules
about possession to modern situations
ii. PIERSON v. POST (SUP CT NY 1805)
i. Post is hunting for the fox on an uninhabited piece of land - Pierson knows that Post is hunting for the fox, but comes along and kills it in
front of Post
ii. Rule of capture (custom) - Pierson has rightful possession because he actually killed the fox - Post's pursuit did not give him a right to
possession
1) Giving a right to possession to anyone who pursued something/an animal would lead to uncertainty and litigation - it is much more
certain when someone kills an animal or completely deprives it of its liberty
2) Most courts have moved away from the rule of capture
iii. Both the majority and the dissent care about first in time - they just define it differently
iv. Majority doesn't deal with the underlying question of what is the "right" outcome
v. If the property was on Post's property he would have had constructive possession
iii. Rules v. Standards
i. Rules:
1) More certainty - reduces potential litigation - people can determine ahead of time who will win
2) Social benefits - lets people know ahead of time what is acceptable and what isn't
3) Abiding strictly by a rule might not mesh well with individual circumstances - doesn't allow for flexibility - often reasonable
behavior is not cut and dry
ii. Standards:
1) More flexible, allows individual circumstances to come into effect
2) Push us harder to decide why we are deciding a certain way - are we accomplishing the right thing/promoting the right values?
iv. KEEBLE v. HICKERINGILL (QUEEN'S BENCH 1707)
i. Keeble owns a decoy pond for ducks, and Hickeringill (without coming onto Keeble's property) fired his gun twice with the effect of
scaring away the ducks - Hickeringill also has a decoy pond that he built first
ii. Court finds for Keeble - say that Hickeringill is interfering with the trade of Keeble for no other purpose than to be violent or malicious
1) Policy argument - court wants to promote the better societal outcome - it is an endorsement of competition as long as it benefits
(in this case) the consumers of ducks
2) One of the first cases endorsing the notion as healthy competition as an objective we want to achieve
3) Outcome would have been different if Hickeringill had simply been the better competitor and lured away the ducks

B. Occupancy Theory
i. In general
i. First in time explains a lot of early property theory, and makes intuitive sense - somewhat explains a labor theory of property, in that he
who worked hardest got there first
ii. Richard Epstein - Possession as the Root of Title - the common and civil law alike adopted the preposition that taking possession of unowned things is the only possible way to acquire ownership of them; the universal principle is original possession
iii. The idea that being prior in time matters is not only venerable but persistent - however, the normative case for first possession (its force
as a justification) is commonly though to be rather weak
ii. GHEN v. RICH (MA 1881)
i. Plaintiff is part of a whaling company who killed a whale - custom is that whoever finds the whale notifies the whaling company and gets
a finders fee - instead, someone found the whale and auctioned it off to defendant
ii. Court finds that plaintiff if the owner of the whale because of the very specific whaling custom - which defendant knew or might have
known about
iii. Policy argument - for the good of the industry - what would be the motivation to hunt whales if anyone could just come along and take
them?
1) At the same time, technology/other responses might evolve if the rule was different - what is preventing the whaling company for
sending someone down to wait at the beaches for the whale to wash up, or hoist the whale onto the ship after killing
iii. Custom

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iii. Custom
i. In some situations it makes perfect sense to rely on custom if the custom is widely known - people in the industry are actually on the
ground engaging in these practices - they likely know more about the practices than the court
ii. As an empirical matter, custom could be wrong - it may not be correct to embrace things as they have always been done - a legal rule
might be favorable to prompt development
1) Sometimes custom only favors those who were at the table at the time the custom was established - court must ask itself if the
custom is taking into account all the appropriate interests
iv. Instrumental arguments
i. Will the decision enhance certainty and peace?
ii. Look at the instrumental effect the decision will have on the industry (Pierson, Ghen)
iii. Rule should maximize social utility (Keeble)
v. Doctrinal rules
i. Need to mortally wound or trap to establish possession (Pierson, Ghen)
1) Exceptions:
a) Malicious interference (Keeble) - find in favor of person interfered with
b) Constructive possession - if someone comes onto someone else's land there is a trespass problem - even if the owner of the
land didn't actually possess the animal they still have constructive possession
c) Custom (Ghen, Swift)
vi. JOHNSON v. M'INTOSH (Sup Ct US 1823)
i. Plaintiff's father as well as two other grantees had large land companies - purchased land from the Piankeshaw Indians - Johnson was the
first to enter the land
ii. After that sale, the US government paid money to the Piankeshaws and granted land to the M'Intosh's
iii. Evidence that this was a sham case to determine whether private land companies could purchase land from the Indians - trying to
establish legal process for acquiring title
iv. Two different rights that end up being divided
1) Right to occupy in the present (Indians)
2) Right to transfer the title in fee simple (US government)
v. Johnson does not actually own anything after the case is settled
vi. Court finds that Indians had no right to grant the land in a way that is prejudicial to the US - they can live on the land, but that's it
vii. US government said that the Indians did not have possession in the land because they didn't use the land in a way that Europeans would
have - used to justify otherwise indefensible behavior
viii. Marshall is saying he doesn't have a choice here - US has established the rule for how it is conquering/acquiring land and allowing its
citizens to be landowners
1) Legal formalism - this is how the country has been established - this is the way it is
ix. Legal formalist
1) Committed to a process which pre-ordained the outcome of things - very formulistic in nature - don't take on instrumental
arguments
x. Legal realist
1) Takes into account policy matters - we should be explicit about that, otherwise we are hiding behind formulism
xi. What does this case say about property rights/ownership?
1) In many cases, can't just look at a set of facts and determine who has the ownership interest - property rights are really what the
courts/legislators say they are, and not just some inherent order of things (at least in a case like this)
2) Theories often help us decide what ownership rules exist - underlie ethical/moral ideas about property
3) With certain limitations, the state has vast power to decide what the property rules are
vii. Acquisition by discovery
i. Entails the sighting or finding of hitherto unknown or uncharted territory - frequently accompanied by a landing and the symbolic taking
of possession - acts that give rise to an inchoate title that must (on one view) subsequently be perfected, within a reasonable time, by
settling in and making an effective occupation
viii. Acquisition by conquest
i. The taking of possession of enemy territory through force, followed by formal annexation of the defeated territory by the conqueror
ii. Neither of these two modes of territorial acquisition have much relevance today
ix. Hugo Grotius - the evolution of private property
i. The riches of the earth were initially held in common, but because avarice eventually led to scarcity, the institution of private property
become necessary to preserve peace
ii. Private ownership was imagined to have developed according to agreements, explicit ones or those implied by occupation

C. Demsetz Article
i. Toward a Theory of Property Rights - Utilitarian account of property
ii. Thesis is somewhat contested, but we still have to face the problem of what to do with externalities
iii. Externality - Cost or benefit (much more concerned with cost) that a resource user is not forced to take into account when using the resour ce
i. Most externalities occur when one private property owner imposes harm upon another
ii. For example - Keeble built his pond first, but it is too close as to reduce the ducks in Hickeringill's pond - he has imposed an externality on
Hickeringill that he doesn't have to deal with
iv. Ways of dealing with externalities
i. Nuisance laws
ii. Zoning so that externalities don't exist to begin with - don't allow incompatible land uses next to each other
iii. Setback requirements - require some buffer between incompatible land uses
v. Internalizing - refers to a process, usually a change in property rights, that enables these effects to bear (in a greater degree) on all int eracting
persons
i. A primary function of property rights is that of guiding incentives to achieve a greater internalization of externalities
ii. Property rights develop to internalize externalities when the gains of internalization become larger than the cost of internalization - when
it becomes economic for those affected by externalities to internalize benefits and costs
1) Increased internalization results from changes in economic values, which stem from the development of new technology and the
opening of new markets (changes to which old property rights are poorly attuned)
vi. Common property v. Private property in reducing externalities
i. Assume 100 people around a pool of oil - each person has the right to use the oil without limit, no one has the right to exclude anyone
else - rule of capture applied

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else - rule of capture applied

1) If the oil is not valuable - no externalities - no one has an incentive to extract the oil
2) If the oil becomes valuable - each member wants to extract as much oil as possible, as fast as possible - no one really cares about
sustainability - creates perverse incentives (self interest and collective interest collide)
a) Claims of the present generation are given an uneconomically large weight in determining the intensity with which the land is
worked - no incentive to preserve for future generations
3) Who bears the cost of extraction?
a) If the land is damaged, the person extracting doesn't bear the cost
b) Might see an overinvestment in extraction technology to capture quickly - end up wasting resources
c) If neighbors don't own part of the common pool, they still bear the cost of excessive noise from the extraction, pollution, etc.
4) Obstacles in trying to get collective owners to bargain
a) Transaction costs - can be quite high, especially when dealing with something complicated - may exceed the benefits the
community can acquire by acting collectively
b) Need to police the regulations that are put into place
c) Free rider problem
i) Free riding on the collective efforts of the group to try and negotiate agreement - if everyone reasons this way, no one
will contribute
ii) Problem of holdouts - if one holdout refuses to sign an agreement, they can do whatever they want
d) The more people you are trying to negotiate with, the harder the negotiation
ii. Demsetz says the way to deal with these problems is to transition to private property ownership - highly controversial thesis
1) Real life examples:
a) Lobster industry - exception - have managed to create a tight system of control within their niche
b) Conversely, attempts to create a privatized-type system in the fisheries industry has been largely unsuccessful
2) If one person is given control over the oil field, they will be able to manage the resource more effectively by internalizing the
externalities
3) One owner has much more incentive to determine how to save some resources for the future instead of using them all up as
quickly as possible - more incentive to not ruin the land, because you would have the responsibility of fixing it and preserving for
the future
4) Would not eliminate externalities, but might reduce them - Demsetz says it's still superior - anyone looking for a change, a neighbor
for example, would only have to negotiate with one person instead of 100
5) Private ownership gives the owner less incentive to care about the effects on surrounding properties
iii. Other possible solutions
1) If group can't establish consensus - government can step in and create regulations - establish what the limits are
2) Law and economics - Posner - permeates a lot of property decision-making
vii. Criticisms of Demsetz's theory
i. Logical objection is that the theory makes an unjustified leap from assuming efficiency-maximizing behavior of individuals to assuming
efficiency-maximizing behavior of society - how does a society reorganize itself out of a system of common property and into one of
private property?
1) Seems that members of society would have to agree to reorganization, but agreement requires cooperation and part of Demsetz's
argument is that the absence of cooperation in a regime of common ownership is the problem to begin with
2) How private property comes about remains a mystery
ii. Claim that Demsetz ignores how value-laden the process might be that leads from common to private ownership - picturing the matter,
rather, as more or less mechanical and value-neutral
viii. Bargaining and Externalities
i. Suppose X is using land in a way that is hurting his neighbors - an alternative use of land would cost X $500 but confer $1000 of benefits
upon his neighbors.
1) Seems like it would be in the best interest of the neighbors to offer X $500 to change - most efficient use of land
2) However - when transaction costs are taken into account it's not that simple - especially of transaction costs are more than $1000
it is highly unlikely that the necessary bargaining would occur

D. Theories of Property
i. First in time/First occupancy
i. Taking possession of an unknown thing is the way to acquire ownership
ii. Pierson, Ghen, Johnson v. M'Intosh
ii. Labor theory
i. When an individual labors over an unknown product and creates something useful of it, he acquires a property right to it - John Locke
ii. Locke - "It being by him removed from the common state nature placed it in, has by this labor something annexed to it, that excludes the
common right of other men"
iii. INS v. AP
iii. Reliance interest
i. Property rules should protect reliance in relationships - based on the idea that it is wrong for a true owner to allow a relationship of
dependence to be established, then try to cut off that relationship/dependence
ii. Kunto, dissent in Van Valkenburgh, Local 1330 (but court doesn't know what to do with it), Singer article
iv. Utilitarian
i. Create a property rule that allows for the greatest wealth - most efficient
ii. All IP cases in one way or another are concerned with the tension between protecting creativity and promoting healthy competition want to encourage innovation in a way that will ultimately benefit consumers
iii. Cheney Brothers, Keeble, Smith v. Chanel
v. Personality theory
i. Should choose a property rule to recognize a distinct property right when the objects of the property define the owner's person
ii. Similar to reliance - but also the way in which the property has defined someone's life
vi. Intellectual underpinnings are often infused in judicial decision-making - can help you make stronger arguments as a lawyer/anticipate strong
arguments on the other side
vii. Joseph Singer, The Reliance Interest in Property
i. Argues that the wide variety of current legal rules limiting the right to exclude can all be justified in terms of a single underlying moral
principle - the reliance interest in property
1) When owners grant rights of access to their property to others, they are not unconditionally free to revoke such access - non-

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principle - the reliance interest in property

1) When owners grant rights of access to their property to others, they are not unconditionally free to revoke such access - nonowners who have relied on the owner may be granted partial/total immunity from having access revoked when it is necessary to
achieve justice
2) When parties create relations of mutual dependence involving joint efforts and the relationship ends, property rights must be
redistributed among the parties to protect the legitimate interests of the vulnerable parties
3) Property rights are distributed from owners to non-owners
a) To protect the interests of the more vulnerable persons in reasonably relying on the continuation of the relationship
b) The distribute resources earned by the more vulnerable party for the contributions to joint efforts
c) To fulfill the needs of the more vulnerable persons
viii. Morris Cohen
i. Acknowledges that the essence of private property is always the right to exclude others - but it should not be regarded as inviolable
ii. To be really effective, the right of property must be supported by restrictions or positive duties on the part of the owners, enforced by
the state as much as the right to exclude others which is the essence of property

II. ADVERSE POSSESSION

A. Analyzing an adverse possession case
i. What is the cause of action and what do the doctrinal elements look like? Elements might be different by jurisdiction
ii. To establish adverse possession
i. Actual/exclusive use - often hotly contested
1) Is it the use an ordinary owner would make of the property, taking into account the neighborhood conditions, etc.?
2) VanValkenburgh - required a lot to prove actual use, gravel case (??), wild geese case (??)
ii. Open and notorious - not usually as hotly contested except when talking about boundaries and caves. Connected in some respect with
actual use - in part about putting a true owner on notice that the property is being used.
1) VanValkenburgh - would a normal person walking by the property assume that Lutz was the owner?
2) Kunto should have raised this question
iii. Claim of right - hostility/adversity - often hotly contested
1) Split on standard that court is going to apply
a) Objective - don't care about state of mind of trespasser
i) Majority rule, but should still mention state of mind on exam
ii) If you are representing a true owner and someone is a hostile trespasser - even in this jurisdiction it is a good idea to
make a big deal about it because it makes them less sympathetic
b) Good faith belief
i) Other jurisdictions - need a good faith belief that the property is yours
ii) Van Valkenburgh (inconsistent as to point - Charlie's shack or encroachment)
iii) Kunto
c) Maine doctrine
i) Tiny majority/if anyone
ii) Have to know it's not yours or intend to take it whether or not it is yours
iv. Continuous use - adverse possession has to be continuous.
1) Intermittent/summer occupancy - can be permitted if it's the way a true owner would use the property
a) Kunto
b) Hard to divorce from the question of notice - if the true owner would only use during the summer they should be on notice
2) Successive possession - tacking question
a) Have to get back to the question of what state of mind the trespassers had
b) Some jurisdictions require a document for privity in tacking- contractual in nature
c) Other jurisdictions - sufficient to transfer from one party to another and we don't care about state of mind
v. Some jurisdictions require the payment of property taxes
iii. Boundary disputes - special category
i. Openness and notoriety likely to be particularly important
ii. Manillo says that true owners need actual notice of encroachment - many jurisdictions say that if a reasonable person would have known
that is sufficient
iii. State of mind same as in regular adverse possession
iv. Various equitable doctrines have arisen - can be hard for encroacher to satisfy AP requirements because of openness and notoriety in
particular
1) Courts have developed doctrines when they have sympathy for the encroacher and not for the true owner - may have been
something like long acquiescence (most courts don't follow long acquiescence - want some kind of written/verbal agreement)
2) True owner may be estopped from arguing that the true property is hers if there has been some kind of detrimental reliance
(generally fairly reasonable reliance)
3) Judges are engaging in equity - trying to do what is fair even if the doctrine doesn't really fit - usually where true owner has done
something to make the possessor thing they are ok
4) Singer article talks about some of these equitable solutions
5) Doctrine of agreed boundaries - owners agree verbally or in writing where the property boundary is

B. In General
i. Method to acquire title to property by possessing the property for a certain period of time as long as you have met certain c onditions
ii. Time period is akin to a statute of limitations - adverse possession tends to engender more outrage than a standard statute of limitations
iii. In adverse possession, if owner doesn't bring a claim of trespass within a certain period of time they lose their right to ob ject and lose the title
to the property
iv. Claims usually heard in two ways
i. Claims by the actual owner - trying to eject the adverse possessor
ii. Claim by the adverse possessor - trying to quiet title and settle the claim of adverse possession
v. Some jurisdictions recognize two forms of adverse possession depending on whether the adverse possessor is addressing their c laim under
color of title - in some cases (NY) the statute itself establishes the different requirements based on whether you are establishing your claim
under color of title or not

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under color of title or not

vi. Purpose - to automatically quiet all titles which are openly and consistently asserted, to provide proof of meritorious titles, and cor rect errors
in conveyancing
vii. Color of title claims - based on a faulty written instrument (must be in good faith)
i. In most jurisdictions if you are claiming based on a faulty written instrument, you do not have to be occupying the entire property to win
a claim for adverse possession - you can constructively possess the remainder of the property
viii. VAN VALKENBURGH v. LUTZ (CT APP NY 1952)
i. Dispute between VV and Lutz over lot 19 - big question is whether or not the way the property was used constitutes constructive use
(actual use requirement) and whether Lutz is claiming the property under claim of title
1) Lutz has already won an easement on the property and has admitted that he does not own the land
ii. Court looks at substantive enclosure, factors supporting "usual cultivation or improvement - " Lutz's farm on the lot, his brother's shack,
part of the garage that is encroaching on the lot
1) Court needs to ask themselves whether the true owner would have used the land in a similar way - need to look at neighborhood
norms
iii. Test by definition needs to be a subjective one - open to manipulation
iv. Court finds against Lutz - "proof fails to establish actual occupation for such a time or in such a manner as to establish title by AP"
ix. If ownership changes during possession (the true owner), this is typically not an important issue - adverse possession can happen - unless the
possession runs against someone who possesses only a life estate.
x. If you start possessing against a life estate holder, you can only possess what that owner owns

C. Why have adverse possession?

i. Labor theory - reward person actually working the land (in this case, state of mind shouldn't matter)
ii. Detrimental reliance - want to reward the person who makes an honest mistake and expends labor and such in pursuance of this honest
mistake (in this case, we would want an honest belief - don't want to reward trespassers)
iii. Quiet title - just want to make a decision/settle the claim/determine who owns the property (doesn't tell us who ought to own the property)
iv. Statute of limitations argument - we want to punish owners who don't use their land

D. Typical adverse possession requirements

i.
ii.
iii.
iv.
v.
vi.

CA - 5 years, other states - generally 10-15

Typically require that there has been actual possession
Possession must have been open and notorious - most contested in boundary disputes
Continuous use (under claim of title, sometimes also called an adversity requirement, or hostile use)
For the statutory period of time
CA/other Western states - must pay the property taxes on the property

E. Actual use requirement

i. Reasons behind an actual use requirement
i. Idea that person making actual use of the land should get the benefit of the use - ties into labor theory - the person actually using the
land has worked harder than the person who has abandoned it
ii. Utilitarian idea - adverse possessor is maximizing the value of the property
iii. Notice - part of the requirement is to put the original owner on use that you are using the property - would an owner be able to tell that
you are using the property?
1) Often same evidence to support actual use also supports open and notorious requirement
iv. Actual use is often the most hotly contested issue in cases of adverse possession

F. Claim of title/Claim of right/Hostility requirement

i.
ii.
iii.
iv.

State of mind required by the adverse possessor

Claim of title - one way of expressing the requirement of hostility or claim of right on the part of an adverse possessor
Have to be making a claim that is not subordinate to the true owner's - using property in a way that suggests you own it
Typically a statement to the original owners that you know the property isn't yours and you're just borrowing it defeats the adversity
requirement
i. Could argue that the true owners should have then brought an action against the adverse possessors, but it's a weaker claim
v. Continuum for state of mind requirement
i. Very few courts have taken the view of adversity/hostility to the extreme - idea that you must have a hostile intent by knowing that you
are trespassing, or if you're not sure you don't care - Hostile intent requirement is highly disfavored
ii. In a small number of jurisdictions, there is still the idea that you must have a good faith belief that the property is yours
iii. In many jurisdictions, state of mind is irrelevant for purposes of the court's decision
1) Though outdated for the courts - if your client really had a good faith belief that the property was theirs, makes them more
sympathetic. On the other hand, bad faith belief is likely to hurt the possessor

G. Remedies in adverse possession

i. Adverse possessor could pay the original owner to keep the property
ii. Original owner could keep the property and pay the adverse possessor for any improvements
iii. Simple remedy - if adverse possessor wins they get property and vice versa

H. Calabresi and Melamed

i. Property Rules, Liability Rules and Inalienability
ii. Property rules - interest cannot be taken from its owner without the owner's consent - all transfers are voluntary - one person or another gets
the property
iii. Liability rules - interest can be taken without the owner's consent but only upon payment of judicially determined damages - transfers are
forced - you can keep the property but you have to pay for it

I. Boundary Disputes
i. In general
i. Doctrines have developed that are for the most part favorable/sympathetic to the encroacher depending upon the factual circumstances
ii. Boundary dispute analysis
i. Where do you start? Elements of adverse possession:
1) Is there actual and exclusive use?
2) Is it open and notorious?
a) Need to look at the requirements of the jurisdiction
b) Need to look at when individuals purchased the land
c) What the lot looks like - what size? If it's a small lot owner probably should have been on notice
3) Is the possession adverse? State of mind

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iii.

iv.

v.

vi.

vii.

viii.

ix.

x.

xi.

c) What the lot looks like - what size? If it's a small lot owner probably should have been on notice
3) Is the possession adverse? State of mind
4) Continuity - has the possession been continuous?
MANNILLO v. GORSKI (SUP CT NJ 1969)
i. Parties own rectangular lots next to each other - Gorski made modifications to their house that impeded on their property by 15 inches
the same year Mannillos acquired title to their property - appears to have been a mistake
ii. Court's standard is whether the true owner had actual knowledge of the encroachment in order find open and notorious possession seem to be holding the innocent encroacher to a high standard
iii. Discussion of Maine doctrine v. CT doctrine - court ultimately rejects Maine doctrine
1) Maine doctrine - adverse possession cannot be found in an innocent boundary mistake - adverse possessor must have the
intention to claim the ownership of the land not in his title
a) Court says that this favors intentional wrongdoers and not innocent encroachers
2) CT doctrine - the very nature of the act (entry and possession) is an assertion of the adverse possessor's title, and a denial of the
title of all others. Doesn't matter is the adverse possessor made an innocent mistake
3) Court seems to be saying they won't be looking at state of mind of adverse possessor from now on
Remedies with boundary disputes - property v. liability rule
i. Property rule remedy - If the encroacher prevails they get to keep the land - if the original owner prevails the encroacher has to remove
the encroachment
ii. Liability rule remedy - encroacher has to pay for the value of the land the encroachment is on, or the original owner has to pay for the
increased land value of the encroachment, or pay for the removal of the encroachment
Doctrine of agreed boundaries
i. Exists when parties agree on a boundary and take action - thereafter the true owner may be estopped from upholding the true boundary
ii. If either party sells the house - result depends on whether the dispute has been adjudicated - if not, it is a harder question if the time
period has not passed for adverse possession
iii. Result depends on the circumstances - hard to predict with any certainty
Doctrine of long acquiescence
i. Courts may refuse to upset the boundary lines even if there is no overt conversation/act about agreeing on the boundary if the parties
have been living with it for a long time
ii. Parties can acquiesce without knowledge - very passive
Doctrine of estoppel
i. Comes into play when one neighbor makes representations about (or engages in conduct that tends to indicate) the location of a
common boundary, and the other neighbor then changes her position in reliance on the representations of conduct.
ii. Estoppel has also been applied when one neighbor remains silent in the face of expenditures by another that suggest the latter's notion
of the boundary's location.
Mistaken improvers
i. Remedy depends on the size of the encroachment
ii. If the inconvenience caused by an innocent encroachment is so minor as to be trivial, relief might be denied altogether
iii. If the encroachment takes up a substantial part of the land in question, removal might be ordered notwithstanding the good faith of the
encroaching party, depending on how the court in a particular case strikes a balance between competing considerations
iv. Courts usually apply a balancing test between the parties
1) What would be the harm to plaintiff if removal was denied? Even if that harm is great, removal might be denied upon balancin g
the hardship to the plaintiff with the hardship to the defendant if the removal is granted
2) If the relative hardship test precludes removal of the encroachment, encroaching party acquires either title or an easement i n the
land and pays damages accordingly
Tacking - stringing together successive possession in order to meet the statutory time frame for adverse possession
i. If the evidence shows that the deed was intended by the parties to convey not only the described land but also the adverselypossessed
strip, buyer is allowed to "tack" that strip onto the land described in the deed (Buchanan v. Cassell)
Privity - rightful owner transferring property to someone else but actually passing more than the deed requires
i. Some jurisdictions require a written instrument for privity
ii. Usually includes some sort of legal relationship between the parties
iii. Question of how technical this has to be - do we require a written deed or just successive possession?
HOWARD v. KUNTO (CT APP WASHINGTON 1970)
i. Three properties on the shore of the Hood canal - everyone is living one lot to the left of the lot they actually hold the deed for
ii. Millers (predecessors to the Kuntos) have a survey performed which incorrectly ascertained that the deeds and the property lines were in
accordance, but Kuntos had only been living on the property for one year - issue is whether or not the time period was sufficient to
constitute uninterrupted and continuous use for the time period required for adverse possession
iii. Relationship between what states think about privity and what they think about state of mind - in privity jurisdictions that require some
sort of written instrument, usually people have a good faith mistake about what property is theirs
iv. WA is worried about rewarding squatters/intentional trespassers, which is not the case here
v. Policy reasons in favor of Kunto - otherwise you are going to require people to invest a lot of money in surveys, etc.
vi. In this case, privity was established in favor of Kunto even with a written deed not covering the property in question because there was a
good faith belief

J. Adverse Possession: Disabilities

i. In every state the statute of limitations is extended if specified disabilities are present
ii. A disability is immaterial unless it existed at the time when the cause of action accrued
iii. After the words "such person" you should insert, as a result of judicial construction, the words "or anyone claiming from, by , or under such
person"
iv. Cause of action accrues only against the true owner - need to look at whether the true owner had the disability at the time the action began
v. Statute of limitations is frozen until the disability is lifted, then follow whatever the statute specifies

K. Adverse Possession against the government

i. Under the common law rules, adverse possession does not run against the government - local, state, or federal
ii. Justification - state owns its land in trust for all the people, who should not lose the land because of the negligence of a few state office rs or
employees
iii. A number of states have changed the common law rules, whether by legislation or judge -made law
i. Even absent such changes, a government may be estopped from asserting any right to land where a person improves the land withthe
knowledge and acquiescence of government officials

L. Personal property

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knowledge and acquiescence of government officials

L. Personal property
i. Just as boundary disputes are difficult questions for the attempted possessor due to openness and notoriety - such is the case for personal
property - often kept in places where the true owner will never see it
ii. Discovery rule
i. Statute of limitations begins when the original owner knew or reasonably should have known through the exercise of due diligence of the
cause of action, including the possessor of the property at issue
ii. Obvious question is what constitutes due diligence - reporting theft to police, registering the theft, etc.
iii. O'KEEFFE v. SNYDER (Sup. Ct. NJ 1980)
i. Some time in 1946 3 paintings disappeared - O'Keeffee doesn't report the paintings stolen to the ADAA (which has some sort of registry
for stolen paintings) until 1972
ii. In 1975 discovers the paintings in a gallery owned by Snyder - transaction at some point where paintings were sold to Snyder
iii. NY Supreme Court establishes a statute of limitations with a discovery rule - statute of limitations begins when the true owner finds the
location of the stolen object, so long as they are performing due diligence and searching during that time
1) Must bring suit within 6 years of discovery and exercise of reasonable diligence - can't wait around not knowing where the
paintings are
iv. Statute of limitations generally begins at the time of the wrongful taking
v. Two competing standards
1) Adverse possession - burden is on the possessor to make the possession open and notorious - personal property (as opposed to
land) is harder to publicize
2) Statute of limitations with discovery rule - puts more of a burden on the true owner
a) Don't want to make the true owner take too many steps to protect themselves - efficiency/fairness issues
b) Court thinks that this might result in less art theft - could lead to second order things happening, like the establishment of an
art registry
iv. Title insurance keeps this from happening with real estate
i. With personal property, the chances of having a problem with the personal property is small in relation to its value.
ii. Personal property is much less permanent
v. GUGGENHEIM FOUND. v. LUBELL (NY 1991)
i. Creates NY rule - NY is home to many of the art galleries in the US
ii. Statute of limitations for replevin doesn't begin to run in favor of a good-faith purchaser until the true owner makes a demand for return
and the good-faith purchaser refuses
iii. Until demand is made, possession of the stolen property by a good-faith purchaser for value is not considered wrongful
iv. Court thought it was inappropriate to put a duty of reasonable diligence on the true owner, thinking it would encourage illicit trafficking
in stolen art by putting the burden on the true owner to demonstrate that it had undertaken a reasonable search - better rule is to
require potential purchasers to investigate the provenance of works of art
v. May actually end up doing the same thing as the discovery rule - allows a defense of latches - can raise a defense saying that the true
owner failed to do something which she should have done
1) Basic rule - if you're the thief you can't raise any of these defenses
vi. Both the discovery rule and the NY rule allow for consideration of the behavior of the true owner - asking whether they did enough to try and
recover the property
vii. LOCAL 1330 STEEL WORKERS v. UNITED STEEL CORPORATION (6th Circuit Ct Appeals 1980)
i. Factory had been doing poorly but kept sending messages to workers that it wouldn't shut down as long as they continued to work hard factory pretty much defined the entire town
1) Workers claimed they detrimentally relied on the promises for the factory to remain open
ii. Illustration of the way our conceptions of property vary depending on the era in which we live
iii. When case was filed it seemed potentially winnable - sense there was something the workers had earned to give them a property right
iv. Very poorly grounded doctrinally - workers are claiming that they have a community property interest in the property that arose because
of their reliance on US Steel - therefore US Steel has a duty to give back to community
v. Promissory estoppel - workers relied on an oral promise given to them
vi. Court ultimately says that there is no authority on which to base the workers' claims
viii. Singer article
i. Says that a number of doctrinal areas would provide more support for the plaintiffs than the court even acknowledged
1) Still would have been a big expansion of property rights - but Singer thinks that there are arguments that could have been made to
make the court more comfortable in its decision
ii. Singer said court should not have been thinking about property in absolute terms but instead - asking whose relationships were involved
and who is effected by the decision
iii. Hohfeld - Property rights are not absolute, but are relational - how you think about property depends on which parties are involved and
who they are - each time you have a property right it means that someone else can't do something
iv. Hohfeldian terminology
1) Property rights are relational
2) Right - I can prevent someone else from doing something
3) Privilege - I can do something and no one else can stop me from doing it
4) Notion of ownership means different things, depending on the rights and privileges associated with it
5) Rights are claims that are enforceable by the state and say that others either act or refrain from acting in a certain manner in
relation to the right-holder
6) Rights are typically thought of as rights to exclude - Hohfeld would categorize this as a right in relation to other people that would
want to come onto the property - if I have the right to exclude, you have the duty not to trespass on my property
7) If I have some legal privilege, right, etc. - that means that someone else doesn't get to do something vis-a-vis my property - more
than one person may be effected by a property right
8) A privilege gives permission to the property owner to act in a certain manner vis -a-vis that property without being liable for
damages to others for engaging in that act vis-a-vis the property, and without others being able to summon state power to prevent
those acts
9) If we think about property rights as relational, we don't think of ownership in absolute senses - we instead think how does it effect
those around us - who is effected by what we do on our property
v. Singer says that the most appropriate justification for adverse possession is best cast in terms of a reliance interest - has much more to
do with the two parties involved in litigation than who actually owns the property
vi. Sometimes the courts are creative in creating remedies for adverse possession cases - here, really what shifted the ownership was that

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do with the two parties involved in litigation than who actually owns the property
vi. Sometimes the courts are creative in creating remedies for adverse possession cases - here, really what shifted the ownership was that
the possessor had relied on possession of this property
vii. Downside to ruling for plaintiff - might not be the most efficient outcome (might prompt more litigation, put companies at a competitive
disadvantage, etc.) - but sometimes we need to be more concerned about fairness over efficiency
viii. The harms being caused to the workers are externalities that the factory doesn't have to bear - we can force them to internalize these
costs
ix. Courts frequently have concerns that they are institutionally incompetent to make these decisions and that they would better be left to
Congress
1) Congress
a) Theoretically more accountable to the people
b) Have better means to conduct research and make important findings
c) Plurality (more representative, more ideas)
d) Have the ability to weigh all the issues and consequences - not just limited to a single case
2) Judges
a) Purity argument (somewhat immune to political pressure/elections)
b) Expertise can be available
c) Reasoned decisions (legislature might ignore certain groups)
d) More efficient process
e) Narrow case can be limited to a particular case
f) Implementation is not a judicial strength
x. In deciding for the company, the court is still deciding a property issue - determining that the factory owners have a right to destroy their
own property
1) Property role that comports with market notions of the freedom to do what you want with your property
xi. One overall point - need to think about what you can do/say to make the court more comfortable when you are asking for relief that
seems like a big step - make it seem as if it's not a big deal

III. INTELLECTUAL PROPERTY LAW

A. In general - Acquisition by creation
i. Under what circumstances do you get property because you worked the hardest, or because your efforts were the most creative?
i. Courts generally strike a balance between rewarding creativity/labor/hard work with what is going to benefit the market generally
ii. What happens when one labor theory (labor) conflicts with another (utilitarian)?
iii. Labor theory
i. One problem is that we often see laboring by both parties - how do we decide whose labor matters the most?
ii. Underlies a lot of IP law
iv. INTERNATIONAL NEWS SERVICE v. ASSOCIATED PRESS (Sup. Ct. US 1918)
i. Case arises out of technological developments - the telephone and the telegraph
ii. INS is basically stealing news from AP through these new technologies - news can traverse the country quickly - they are copying news
from the bulletin board/AP's early editions and using it
iii. AP is seeking an injunction on the grounds that they have an interest in the format and publication of the news - INS says that as soon as
AP publishes/posts the stories they have no further claim
iv. Court holds that there is a difference between AP and a consumer and AP and a competitor
1) Relational notion of property - vis-a-vis the public, AP doesn't have a property interest, vis-a-vis INS, AP has a quasi property right
in the collection and dissemination of the news
v. If court had ruled for INS, courts thinks that no one would have been able to publish news for a profit - similar to Pierson, Ghen
vi. On the other hand, companies might start to take safeguards to prevent these kinds of thefts, AP might move its news to the West
quicker, prices might get cheaper - possible better results for the public
vii. Labor argument - INS is putting in some labor - they have a pretty elaborate system to "steal" the news
v. News continues to not be copyrightable today, but the form of expression is - there is a difference between the substance of the information
and the form of the words
vi. Combination of materials/resources - how do you decide who is entitled to the final product?
i. Relative contribution in labor
ii. Value added
iii. Distributional concerns
iv. Person who contributed first
v. Increase in final value of product
vi. Replacement value of the original materials
vii. Usually if A takes B's raw materials the ownership interest goes back to B - unless A's labor substantially increases the value
viii. Law of accession - comes into play when one person adds to the property of another
vii. CHENEY BROTHERS v. DORIS SILK CORP. (2nd Circuit 1929)
i. Plaintiff creates certain designs for silk (no protection for copyright), defendant copies the designs and sells them for cheaper
ii. Learned Hand rules for Doris silk - might prompt Cheney to lower prices, come up with more designs faster, etc.
iii. Cheney's argument
1) Labor theory - they have put labor into making the designs
2) Utilitarian - what motivation does fashion industry have to survive if people can just copy designs?
3) INS would seem to be helpful
iv. Learned Hand says that the ruling in INS is a general doctrine, but limited to the facts of that case
v. On the flip side - why do we want to spur competition in scarves but not news?
viii. SMITH v. CHANEL, INC. (9th Circuit 1968)
i. Smith is knocking off Chanel perfume, selling it for cheaper, and advertising as such
ii. Court says that not only is this ok, it is in the public interest to do so - imitation is the life blood of competition
iii. Court is relying on a utilitarian theory of property
iv. Says that appellants are not entitled to monopolize the public's desire for the unpatented product
ix. Need to look at various tensions running through IP cases - recent cases have tended to favor the original creator
x. The idea behind copyrights, patents, and trademarks is to grant a limited copyright over the protected material - a monopoly to promote

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ix. Need to look at various tensions running through IP cases - recent cases have tended to favor the original creator
x. The idea behind copyrights, patents, and trademarks is to grant a limited copyright over the protected material - a monopoly to promote
creative activity, but limited in order to advance competition

B. Patents
i.
ii.
iii.
iv.
v.
vi.

Create the most protection for the IP right holder

For processes, machines, and substances - but not ideas
Patent holder is not granted an exclusive right to produce the product
Last 20 years from the filing date
Generally speaking, the greater the intellectual property right, the shorter its term
Patents aren't granted for obvious and useless inventions - we don't need IP protection because people will simply invent them at low cost - we
don't need a monopoly
vii. Theory for patents
i. Labor theory - we want to induce people to labor hard and invent
ii. Utilitarian - in the absence of patents, there is less incentive to create new things
viii. DIAMOND v. CHAKRABARTY (US Sup Ct 1980)
i. Patent examiner denied plaintiff's patent for a human-made, genetically engineered bacterium capable of breaking down crude oil on the
basis that micro-organisms are products of nature, and that as living things are not subject to patent
ii. Court found that "his claim is not to a hitherto unknown natural phenomenon, but to a non-naturally occurring manufacture or
composition of matter - a product of human ingenuity," and that "the grant or denial of patents on micro-organisms is not likely to put an
end to genetic research or its attendant risks"

C. Copyright
i.
ii.
iii.
iv.
v.

Conferred for the unique manner of expression

Anything expressive can be copyrighted, provided the expressive aspect can be separated from the functional
Lasts for the life of the author plus 70 years - can't sell or use a copyrighted work without the author's permission
Fewer protections for copyright holders - can quote a copyrighted work without paying if the use is considered to be "fair"
Lots of debate about whether copyrights protect materials for too long, or whether fair use (being a fuzzy term subject to li tigation) puts more
power in the hands of copyright owners - also debate about infringement of 1st Amendment protections
vi. NICHOLS v. UNIVERSAL PICTURES CORP (2nd Circuit 1930)
i. Plaintiff wrote a play and claimed that the story was copied by the defendant in making a movie - not verbatim copying but a similarity
ii. Court found that some details aside, the defendant's movie was too unlike the plaintiff's play to be an infringement
iii. The right cannot be limited literally to the text, else a plagiarist would escape by immaterial variations - as soon as literal appropriation
ceases to be the test, the whole matter is necessarily at large
vii. METRO-GOLDWYN-MAYER STUDIOS INC v. GROKSTER, LTD (US Sup. CT 2005)
i. Instrumental concerns on both sides about technological innovation
1) On one side, if you allow people to download songs for free there's no incentive to create - quintessential argument for copyright
a) Similar to VCR debate - fear that it would destroy the movie-making market as we know it
2) On the other side, they have purposes that are not only about allowing people who have a computer to rip off the music encouraging market access to the music, shutting down these industries may stifle technological innovation
ii. Court held that "one who distributes a device with the object of promoting its use to infringe copyright, as shown by clear expression or
other affirmative steps taken to foster infringement, is liable for the resulting acts of infringement by third parties"
iii. "One infringes contributorily by intentionally inducing or encouraging direct infringement, and infringes vicariously by profiting from
direct infringement while declining to exercise a right to stop or limit it"

D. Trademarks
i. Provide very limited protection for works/designs that then get associated with a particular product
ii. Unlimited in duration with a few exceptions
iii. Others can't use the trademark in a way that would create consumer confusion
i. You infringe on a trademark if you are trying to make consumers think that you are selling a trademarked product
iv. Product may lose its trademark if the general product becomes so familiarly associated with the name that it is indistinguish able - asprin,
kleenex, etc.
v. WHITE v. SAMSUNG ELECTRONICS AMERICA, INC. (9th Cir. 1993)
i. Vanna White sued, alleging infringement of various IP rights - arose out of an advertisement featuring a robot standing in front of a
Wheel of Fortune board
ii. Appellate court found for White based on the Lanham act, a federal statute concerned with false representations in advertising
iii. Kozinski's dissent - overprotecting IP is as harmful as under protecting it - it is now a tort for advertisers to remind the public of a
celebrity
1) Said that the majority is creating a new and much broader property right, rather than just protecting White's existing rights
2) Also said that intellectual property rights aren't free, but are imposed at the expense of future creators and of the public at large

IV. RIGHT TO USE AND QUIET ENJOYMENT

A. In General
i. MOORE v. REGENTS OF THE UNIVERSITY OF CALIFORNIA (Sup Ct CA 1990)
i. Moore was being treated for hairy-cell leukemia at the UCLA medical center, and was told he needed a splenectomy and some seven
years of follow-up tests - was not told that blood and cells were rare and extremely valuable
ii. Moore came down to LA on his own dime for testing - probably could have been done in Seattle
iii. Moore sued for conversion - wrongful exercise of ownership rights over someone else's property - and other claims
iv. Supreme court holds that Moore has a case for lack of informed consent, but not for conversion
v. Case of first impression - there is no law directly on point
vi. Statutes give some hints in this case - but at the end of the day, none define the issue conclusively
1) CA Health and Safety Code section 7054.4 - specifies how bodily matter is to be disposed of - suggests that patients aren't in
control of what is taken from their bodies/how it is disposed of
2) However - intent of statute is to safeguard public health, not to create/effect property interests
3) Uniform Anatomical Gift Act - allowed people to donate tissues/organs, but not to receive valuable consideration for them
a) However - just because you can't sell something doesn't mean it's not your property
vii. Court says that it is not "necessary to force the round pegs of privacy and dignity into the square hole of property in orderto protect the
patient, since the fiduciary duty and informed consent theories protect these interests directly by requiring full disclosure

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patient, since the fiduciary duty and informed consent theories protect these interests directly by requiring full disclosure
viii. Also - the patented cell line and the products derived from it cannot be Moore's property - the cell line is both factually and legally
distinct from the cells taken from Moore's body
ix. Question of institutional competence - court seems to be saying that it should be up to the legislature to create new property rights
1) Many different interest groups (doctors, hospitals, researchers, etc.) have an interest in the case coming out in their favor , and
patients are likely to be the least powerful group
2) Legislature can always come in and correct and overstepping by the court - but how do you bring this up in arguing for Moore hard to question legislature's competence
x. One possible solution - the majority could have limited Moore's property rights but nevertheless acknowledged and protected them
through the cause of action for conversion - concerns about the impact of conversion liability on medical research and development
could in turn have been eased by an appropriately tailored measure of damages
xi. Law of accession also comes into question - who contributed the principal materials?
1) UC could argue that the cells weren't valuable by themselves - what's really valuable here is the labor
xii. Fiduciary duty question
1) Must prove that you were not informed, that you would not have consented to the procedure had you been informed, and that's
the position a reasonably prudent person would have taken
2) Perhaps Moore could have bargained with the doctor if he had made full disclosure - but do we really want to put patients in the
position of bargaining with someone who is in charge of saving their lives?
ii. The Bundle of Rights
i. Akin to the idea that property is about relationships/the law creates property rights
ii. The abstraction we call property is multi- not monolithic - it consists of a number of disparate rights, a bundle of them:
1) The right to possess
2) The right to use - nuisance clearly limits the right to use, as does zoning - can also contractually limit
3) The right to exclude - enforced through trespass
4) The right to include - right to sell/transfer/give away - include someone else in the ownership of your property
a) Right to share/give away can be limited
b) Can be forced to share your property in certain instances - easements
5) The right to transfer - while property may usually be transferred by sale or by gift, this is not always the case
6) The right to dispose of - can include the right to destroy
iii. Idea is that we can limit all of these things but we don't eliminate the rights to property

B. The Right to Exclude

i. JACQUE v. STEENBERG HOMES, INC. (Wis. 1997)
i. Defendant is trying to move a mobile home that is easiest to move across Jacque's property - repeatedly ask Jacques but they keep
refusing - defendant moves the trailer over the property anyway - court awards punitives to Jacques
ii. Court upholds $1 in nominal damages and $100k in punitives - says that the right to exclude is "one of the most essential sticks in the
bundle of rights that are commonly characterized as property" - but the right is hollow if the legal system provides insufficient means to
protect it
iii. Private landowners should feel confident that wrongdoers who trespass upon their land will be appropriately punished
1) We want to uphold the right to personal liberty/freedom - being able to express ourselves in the privacy of our own homes in the
way we want to
2) Economic argument - if you can't exclude people from your property, you may not have the incentive to invest in your property
3) Generally speaking, the right to exclude is pretty inviolate
ii. STATE v. SHACK (N.J. 1971)
i. Migrant workers are living/working on a farm, and government workers are trying to get on the land to provide medical and legal
services - farmer is trying to exercise his right to exclude the government employees from the property
ii. Court holds that the right to exclude is not absolute, and the farmer has no legitimate reason to exclude
1) The workers are vulnerable and they live on the farmer's land - there is no other way to get to them

V. NUISANCE
A. Analyzing a Nuisance case
i. Is this a substantial interference with the use or enjoyment of land?
ii. Public or private nuisance?
i. Is the harm sufficiently diffuse/does it effect a large number of people - if so, does the person suing have some sort of special injury?
ii. Spur
iii. Is there a nuisance per-se (is there a statute on point)?
iv. Can you characterize this as a trespass?
i. Is it a physical invasion of the property (smoke, particulate matter, etc.)? If so, could be strict liability.
ii. Some jurisdictions are starting to apply a balancing test to trespasses that look like nuisance.
v. Intentionality - usually a given - Morgan
i. If it's intentional - defendant knew or reasonably should have known that the harm would occur to the plaintiff, or intended to cause the
harm
1) If intentional, is it unreasonable, therefore constituting a nuisance?
a) Threshold test
i) Morgan, Jost, Estancias, Boomer
ii) Is this a harm which a normal person would reasonably be expected to endure? Look at zoning, coming to nuisance,
use
iii) First find liability (is there a nuisance?), then decide on the remedy - balance the equities
iv) If there is a nuisance, balance the equities using restatement-like factors - Estancias (says explicitly to balance the
equities)
b) Restatement test
i) Balancing the gravity of harm to the plaintiff (extent, character, suitability of use/coming to the nuisance, capacity to
avoid) v. social utility of defendant's behavior (social value of their behavior, suitability, impracticability of preventing
harm)

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harm)
ii) If defendant's social utility outweighs - no injunction
iii) If gravity of the harm outweighs - injunction
iv) Plaintiff might get damages if defendant can pay damages without going out of business - harm must be serious
- Serious harm - even if utility outweighs gravity of the harm, defendant should pay if it can - Boomer (uses
threshold test, but this is essentially what it is doing)
c) In either test, if there is harm that has happened in the past, must be compensated with damages - can't enjoin past
damages - Estancias - damages for past harms, enjoin the action in the future
ii. If it's unintentional - can still be liable if it was negligent, reckless, or an unreasonably dangerous activity (which would lead to strict
liability). Did the defendant negligently/recklessly do something to cause the harm?
1) Unintentional cases are rare
vi. Remedies
i. Injunction for plaintiff - Estancias
ii. No injunction, but the defendant pays (potentially permanent) damages - Boomer
iii. No injunction, no damages - no liability for defendant under either jurisdiction - defendant gets to continue
iv. Damages for defendant combined with injunction for plaintiff - Spur
v. Mandatory injunctions - tell the defendant how to behave
vii. Somewhere in the mix - is there a coming to the nuisance defense?
i. Absolute defense seems to be limited to circumstances that Spur spelled out
1) Developer with foreseeability brings a number of people to the area - either agricultural or industrial - and it is not natural growth
of the city
a) Foreseeability - could foresee that the people living there would experience harms

B. In General
i. The law of nuisance is part torts and part property - torts because nuisance liability arises from negligent or otherwise wrongful activity, and
property because the liability is for interference with the use and enjoyment of land
ii. Nuisance law is a means by which common law judges resolve conflicting land uses
iii. Rests on the concept embodied in the ancient legal maxim - Sic utere tuo ut alienum non laedas - in essence, every person should so use his
own property as not to injure that of another
iv. As long as you know that your behavior is going to cause harm, or reasonably should know, there does not have to be malicious intent
i. Need to look at whether harm is intentional or unintentional
1) Intentional - must be unreasonable
a) Court could find land use to be unreasonable even if you are operating a pig sty, for example, in a reasonable manner
b) Threshold test - if defendant's behavior seems to cross some threshold that people living near the nuisance shouldn't have to
deal with, it is a nuisance
c) In Morgan court finds unreasonable use even though defendant is operating business appropriately
d) Need to look at what is normal for a neighbor to have to put up with - plaintiff-centric view
v. MORGAN v. HIGH PENN OIL CO (Sup Ct North Carolina 1953)
i. Morgans are complaining about the noxious fumes produced by High Penn - they purchased the land before High Penn commenced
operations - although they're not plaintiffs, there are a number of other properties in the area which are being effected
ii. Court upholds damages and injunction on behavior
vi. ESTANCIAS DALLAS CORP. v. SCHULTZ (Ct App TX 1973)
i. Schultz's live near a newly constructed apartment building that has an air conditioning unit located on property immediately adjacent to
the Schultz's house - prevents plaintiffs from sleeping or talking to each other in their house
ii. Threshold jurisdiction - court lets Schultz's decide whether they want damages or an injunction - Schultz's win and court grants an
injunction - balancing goes on at the remedy stage
iii. Even if the apartment building is legally allowed to produce the noise - just because something is legal doesn't mean it's normal

C. Threshold Test v. Restatement Test

i. Threshold test
i. Really only looking at defendant's behavior
ii. If there is a substantial non-trespasstory invasion of another's land, it is a nuisance - we will decide at the remedy stage whether we want
to take into account defendant's social utility
iii. A lot of the time the restatement factors are taken into account at the remedy stage
ii. Restatement test
i. Looking at the balance of behavior between the two
ii. Infused with Coasian insights - trying to ensure that the person who can best use the land is going to use it
1) Coase - nuisance is reciprocal in nature - decide which harm is more serious by balancing the gravity of the harm against the utility
of defendant's conduct
iii. When thinking about all the different kinds of factors we naturally want to take into account, the restatement is trying to make sense of
them, put them in some sort of calculus that forces courts to be explicit when finding liability/not finding liability
iv. Restatement gives us two prongs/ways of determining liability
1) Balance the gravity of the harm and see if it outweighs the utility of the defendant's conduct - utilitarian approach
a) Gravity of the harm (to plaintiff) - the extent of the harm - how detrimental it is to the person claiming the nuisance, time of
day, duration, number of people, lasting effects, etc.
i) Character of the harm
ii) Suitability of use to character of locality
iii) Can the plaintiff avoid - suitability of plaintiff's use
iv) Social value of the plaintiff's use
b) Utility of defendant's conduct
i) Social value of the defendant's conduct - products, jobs, economic impact
ii) Suitability of defendant's location
iii) Impracticability of defendant preventing the harm - whether or not it can avoid the harm at low cost
2) Sense that some harms are dangerous enough that plaintiffs should not have to bear them alone
a) Requires compensation - "the harm caused by the conduct is serious and the financial burden of compensating for this and
similar harm to others would not make the continuation of the conduct not feasible" (p. 643)
b) Basically saying that if the harm is serious and the defendant can compensate without going out of business, they should pay
damages

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damages
iii. Which view dominates is not clear, though it can be said that relatively few courts have followed the Restatement explicitly
iv. Despite the fact that property scholars have succeeded in making lawmakers think about balancing the harms, there is still a sense that some
people should not be forced to deal with the harms imposed by people living near them
v. Typically, an intentional tort results in liability without regard to the amount of harm or the reasonableness of the activity causing it
i. Trespass - involving a physical invasion of land, is a case in point
ii. While liability for unintentional trespass is virtually identical to that for unintentional nuisance, the two torts differ markedly if the
element of intent is present - in such an instance trespass is treated like the other intentional torts, and nuisance is subjected to inquiries
about reasonableness and amount of harm
1) Someone is trying to gain something from your land when they trespass
2) In a nuisance claim, your purpose is not to use someone else's land - you are using your land and they are using theirs
a) When analyzing a nuisance claim, always look to see if you can claim trespass - easier to prove - strict liability
b) Some courts have begun to recognize trespass for small particles of matter - would want to argue this as a plaintiff - not the
type of trespass typically envisioned by trespass statutes - might not make sense to have strict liability

D. Remedies
i. Injunction
i. Mandate that you perform/cease to perform a certain type of behavior - detailed requirements about what the defendant needs to do in
order to abate the nuisance
ii. There may be instances in which we don't feel comfortable using damages to compensate - right to stay in a home you are emotionally
attached to, paying damages but exposing plaintiffs to harms, etc.
iii. Appropriate if the harm is highly difficult to quantify, or if there are lots of costs being imposed on others, or the harm is something that
ought not continue regardless of the imbalance
iv. Injunctive relief isn't limited to stopping defendant's behavior - can limit hours of operation, prohibit use on windy days, etc.
ii. Damages
i. If cost of abatement would be higher than damages, damages may be appropriate
iii. Coasing out
i. If there are very few parties to litigation, and you feel comfortable that the parties can amicably settle, then choice of remedy may not
matter much - they may bargain to the efficient outcome
ii. If there are multiple parties, you can assume that the transaction costs will be high
iii. Sometimes transaction costs of litigation/lawyers fees/uneven information prevents us from achieving an efficient outcome
iv. Balancing of equities - as in Boomer
i. One problem is that it compares the general loss to the public, such as loss of jobs, while it only considers specific loss to the private land
owner, i.e., the specific money damage to his property, notwithstanding he may be damaged in many general ways which cannot be
translated into specific damages
v. No simple answer about remedies - have to explore all possibilities
vi. BOOMER v. ATLANTIC CEMENT (Ct App NY 1970)
i. Atlantic Cement is operating in Albany - neighbors alleging injury to property from dirt, smoke, and vibration emanating from the plant
ii. Cost to Atlantic in shutting down the plant far exceeds plaintiff's damages
iii. Court uses threshold test - grants an injunction conditioned on the payment of permanent damages to plaintiffs
1) Can't grant a temporary injunction to wait for advances in technology - advances might not happen
2) Notes that the parties could settle this litigation at any time if defendant pays enough money and the imminent threat of clo sing
the plant builds up pressure
3) This relief might also spur development in technology - other factory owners would want to avoid damages
4) "It has been said that permanent damages are allowed where the loss recoverable would obviously be small as compared with the
cost of removal of the nuisance"
vii. SPUR INDUSTRIES, INC. v. DEL E. WEBB DEVELOPMENT CO. (Sup Ct AZ 1972)
i. Public nuisance case - idea that the conditions are dangerous to the public health
1) In a public nuisance case can complain about environmental harms - harms that might not even be specific to them
2) Makes sure that all the harms inflicted on a community are taken into account
ii. Court does not analyze under threshold/restatement because there is a statute on point - makes it a nuisance per-se
1) Under threshold jurisdiction could have argued that Webb came to the nuisance - still not an absolute bar to finding nuisance
liability - it is relevant to the question of reasonableness/balancing
2) Court takes coming to the nuisance into account in the remedy stage
iii. Coming to the nuisance
1) At what point do we say that we are going to allow a farm to commit nuisances even though it may inhibit future land uses?
iv. Emphasizes the relational nature of property - really matters who your neighbors are
v. Court issues a purchased injunction
1) Court grants injunction, but Webb has to pay Spur for costs
2) Limits this particular remedy to situations where there is a developer who expands to an area which is not part of the "natur al"
expansion of an urban area, and there is foreseeability
3) Happens when developer buys in a traditionally agricultural area where what wasn't a nuisance turns into one
4) Same as Calabresi and Melamed's fourth rule - since the entitlement can be in either of two parties and it can be protected by
either of two means, there must be four possible outcomes

E. Public Nuisance
i. Where an act constitutes an unreasonable interference with a right common to the general public
ii. Public nuisance protects public rights; private nuisance protects rights in the use and enjoyment of land
iii. Any member of the affected public can sue for public nuisance, but usually only if the person bringing the suit can show "spe cial injury - " injury
or damage of a kind different from that suffered by other members of the public

F. Nuisance and Environmental Controls

i. Nuisance law has an obvious bearing on environmental problems
ii. There are a number of reasons to conclude that its contributions must be limited ones
i. Nuisance litigation is expensive, cumbersome, and somewhat fortuitous means for resolving modern environmental problems
ii. Potential plaintiffs, each usually bearing only a small part of the social costs of a large problem, have weak incentives to bring expensive
lawsuits that promise limited rewards and difficult problems of proof
iii. Judges are poorly equipped to deal in a competent fashion with issues that demand considerable scientific expertise and are probably

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iii.
even less able to devise and oversee an ongoing program of technological controls
iii. Problems might be overcome by
i. Class actions
ii. Provision of attorney's fees to plaintiffs bringing suit in the public interest
iii. Special environmental courts
iv. The general conclusion is that nuisance litigation is ill-suited to other than small-scale, incidental, localized, scientifically uncomplicated
pollution problems
v. Alternative to judicial resolution of pollution problems is legislative and administrative intervention
i. To date, virtually all legislative-administrative efforts to control environmental problems have taken the form of regulation - proceeds by
telling pollution sources how much, and sometimes how, to control
ii. Incentive systems stand in sharp contrast - rather than command, they induce
1) Classic example is the emission or effluent fee - a charge on each unit of air or water pollution, set so to yield an appropriate level
of control in the aggregate
2) Much more decentralized than regulation

VI. TAKINGS
A. Analyzing Takings
i. Eminent Domain
i. Public use
1) Traditional public use and public ownership tend to be less problematic
2) Private property can go to another private interest if there is a public use ( Kelo)
a) Need a well thought out plan for economic development or other purposes
i) Highly deferential to legislature (Kelo)
3) Blight is OK
4) Breaking up land ownership
a) Hawaii case - mentioned in Kelo - statute was upheld even though title was immediately transferred to private individuals - it
is only the takings purpose (breaking up oligopoly) that matters, and not its mechanics
5) Open question about purely private to private transfer
6) Some states may be more stringent
a) CA statute requires blight
b) May be heightened standard of review - questioning of what means are required to reach the ends (means-ends test)
ii. Just Compensation
1) Determined at market value
ii. Regulatory Takings/Inverse Condemnation
i. Is there a permanent physical occupation?
1) If yes - taking (Loretto)
ii. Lucas test
1) 100% diminution in economic value, except:
a) Nuisance/restatement
b) Background law of property - Palazzo doesn't bar post-enactment claims
2) If not 100% diminution - go back to Penn Central
3) Can you make a conceptual severance argument?
a) Can use this argument here, or in the economic impact section of Penn Central(harder to win there in any event)
b) Penn Coal - taking, Lucas - says something , not entirely clear
c) TRPA - severance regarding time didn't seem to work, at least in that case
i) Favorably cites the idea to use the whole parcel - less favorable to property owners
iii. If no - if it's a temporary physical occupation - apply Penn Centralfactors
1) Economic impact on owner
a) Court is willing to sustain large economic impact (as in Penn Central, Pallazolo)
2) Distinct investment-backed expectations
a) Penn Central
b) Pallazolo - context of the background property rights in Lucas - not a bar to bringing action just because the regulation was in
place before the owner purchased the property - Timing matters, but not dispositive
c) More sophisticated the transaction, the higher standard you hold the property owner to
3) Character of government harm
a) Most important in the "bundle -" the right to exclude
b) Public program adjusting benefits/burdens - not likely a taking
i) Average reciprocity of advantage
c) Idea that some regulations may unfairly single out the property owner
i) Hadacheck idea - if government is regulating nuisance-causing behavior - pretty certain it would be upheld (court has
never talked post-Hadacheck about a nuisance exception from the Penn Central test
iv. Exactions
1) Exaction is a condition of granting the permit
2) If it is a facial constitutional challenge, not in the world of exactions
3) Analysis
a) Is exaction, on its own, a taking?
b) If it is a taking, what is the purpose the government is trying to accomplish/what is the harm it is attempting to
avoid/minimize?
c) Is there an essential nexus between the anticipated harm of the proposed development and the purpose of the exaction
(Nollan)
i) Court says state could have banned the development all together - not that important
d) Is there a rough proportionality between the extent and nature of the harm and the exaction? (Dolan)
i) Make individualized determinations based on the particular property

B. In General

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B. In General
i. "Nor shall private property be taken for public use without just compensation"
i. "Public use" is the most disputed and litigated portion of the clause
ii. Just compensation = market value
ii. Historically, Takings Clause was only applied to acts of eminent domain by federal government
i. In modern times, local/state governments are much more likely to be subject to Takings Clause, as they are in business of zoning/
determining land use
iii. Takings Clause extended in 1922- Pennsylvania Coal v. Mahon - if a regulation goes too far, it results in an unauthorized taking
i. Property can be considered taken, under the 5th amendment, even if it is not physically appropriated
ii. Main question- "Under what circumstances does a regulation go too far, and disproportionately burden property owners?"
iii. In some cases, if a regulation is found to effect a 'taking', then the court would simply invalidate the law
iv. However, in First Evangelical, court held that government must compensate for period of time during which you cannot use your
property due to a regulation
v. Practically impossible for government to compensate for every diminution in value that occurs as a result of regulations
iv. KELO v. CITY OF NEW LONDON (Sup Ct US 2005)
i. City created a redevelopment plan to revitalize New London, and in the process wants to use eminent domain to acquire property from
unwilling owners
1) Private properties would not be able to do anything about the holdouts, but municipalities can use eminent domain and purchas e
for market value
ii. The government's purpose is economic development - court is trying to decide whether the city can use eminent domain to engage in
economic development projects
iii. Majority notes that true test is whether there is a "public purpose -" some use that benefits the public at large and also is very deferential
to legislative intent (believes that legislature is better equipped to determine what constitutes public use)
1) Dissent says that deferring to legislature results in big business/majority overpowering small, powerless individual defendants
iv. Court says that they long ago rejected any literal requirement that condemned property be put into use for the general public- public
purpose is defined broadly
1) Just because private parties are benefitted doesn't mean it's not a public purpose
v. Other possibilities for resolution
i. Heightened level of scrutiny in cases where property is being transferred from one private owner to another (court must look & weigh
whether stated purposes of development are compelling enough)
ii. No eminent domain allowed when transfer is between two private parties
iii. CA rule - no economic development eminent domain unless area is deemed "blighted" - tends to be serious slum conditions
iv. Some state courts have found that transfer of property by eminent domain between private individuals violate state constitutions
v. Federal standard is very deferential - unlikely to lead to any eminent domain being invalidated
vi. Public use - ends test
i. Focuses on the contemplated ends of an act of condemnation - if the ends are sufficiently "public" in one sense or another, the test is
passed
ii. Can result in a very sweeping taking power
vii. Public use - means test
i. Idea here is to ask whether the power of eminent domain is really necessary to accomplish whatever aim the government has in mind
viii. POLETOWN
i. GM conceived of a project, determined its cost, allocated financial burdens, established the site, etc. and then asked the city of Detroit to
condemn the neighborhood and give it to GM
ii. Argument was that this property would help GM and stimulate the economy - after GM had closed 2 plants and there were very high
unemployment levels in Michigan
iii. Court upheld decision to give property to GM, but in a later case established a much more stringent standard

C. Just Compensation
i. Some argue that compensation in a constitutional sense is not full compensation, because market value does not necessarily ta ke into account
the value an owner places on their property
ii. Under fair market value, the owner is entitled to receive what a willing buyer would pay in cash to a willing seller at the t ime of the taking
iii. Using liability rules instead of property rules to deal with eminent domain
i. Compensation at fair market value would be used (as at present) in the case of takings for classic public uses
ii. As the uses in question move away from the classic model in the direction of private to private transfers, compensation awards would
increase as a function of increasing judicial skepticism about the public benefits of the government action in question
iv. Keep in mind that most people actually get more than market value when they negotiate with the government - government has an interest in
preventing litigation
i. However - the less powerful you are, the less power you have to retain a lawyer - less power to negotiate

D. Physical Occupation
i. LORETTO v. TELEPROMPTER MANHATTAN CATV CORP (Sup Ct US 1982)
i. Loretto is complaining about the physical invasion of a cable on her property - plus the screws, etc. required to attach it
ii. If there is a permanent physical occupation, regardless of damage, it is a taking - court characterizes as a per-se rule
iii. Statute in place says that apartment owners are required to allow cable companies to attach wires to their property, for just
compensation of $1
1) Person suing is the property owner - alleging that government activity is so severe it is as if the government physically appropriated
the property
iv. Language in this case is pretty strong on the right to exclude - character of the harm matters a lot
v. Court doesn't address the issue of damages - that's where usefulness, etc. will be taken into account
vi. Cities can require landlords to install all kinds of things (smoke detectors, etc.) on their property
1) Take account of the public purpose of the government regulation - seems we should analyze differently if the government is trying
to prevent harm to tenants rather than just provide an amenity
vii. This case represents the Supreme Court endorsement of a rule of long standing - PPO = taking
ii. Permanent v. temporary physical occupation
i. Permanent physical occupation - if yes, inquiry is over, don't look to purpose, etc.
ii. Temporary physical occupation - out of the realm of a per-se rule - need to balance
1) Character of government action/harm

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2) Economic impact of the regulation, especially the degree of interference with investment - backed expectations
a) Bigger the economic impact on the property owner, the worse it is
b) If you buy a piece of property and have the expectation that you can use it in a certain way, and this use is thwarted by the
government, this is an important factor to consider in determine whether the government is taking the property
3) Rights implicated
a) Right to exclude - right to dispose, right to use

E. Measuring and Balancing

i. PENNSYLVANIA COAL COMPANY v. MAHON (Sup Ct US 1922)
i. Surface rights are different from the mineral rights - Mahon owns the right to the land above ground, but not below the ground
1) Also a support estate - governs the land that is supporting the surface estate
2) Three types of estates: surface, mineral, support
ii. PA legislature was worried that if someone removed all the minerals the land could collapse - act is meant to maintain public safety by
preventing mining companies from removing all the coal from underneath someone's land
iii. Contract between the property owner and Penn Coal gives the company the right to take the minerals and waives suits for damages to
the surface estate
1) Legislature basically says that they are doing away with these contractual provisions
iv. Holmes says this is not all about public safety - more about private regulation - property owners are given notice before any minerals are
extracted so the safety concerns are eliminated
v. The statute would constitute a taking - it is giving the property owners more rights than they bought
vi. Average reciprocity of advantage - there are many regulations that may burden you a bit, but you also gain something from them averages out
1) We want to worry about those regulations which seem to burden an unfair number of property owners - those cases in which
people are really unfairly burdened - regulation is singling you out disproportionately
vii. Test that Holmes uses to say that something is a taking - if the regulation "goes too far"
1) What is the public purpose? If it's harm preventing, we don't even balance
2) If it is benefit conferring, we look at the extent of the diminution of value of property - at some point it goes too far
3) Extent of the public interest v. the diminution of the value of the property
viii. Question of what you look at for diminution of value - the entire property or just the support estate?
ii. KEYSTONE BITUMINOUS COAL ASSN. v. DEBENEDICTIS (US Sup Ct 1987)
i. Looks identical to Penn Coal, but court does not find a taking
ii. Purpose was not just to balance private economic interests, but rather to protect the public interest in health, environmental quality, and
fiscal integrity
iii. Court also did not find a total diminution in economic value - found that the millions of tons of coal that had to stay in place were not a
separate segment of property, but only a few percent of the total coal owned by the companies
iii. Conceptual Severance
i. Question of which property interest you measure the diminution of property value against
ii. Generally speaking, state courts appear to reject conceptual severance - they consider the impact of a land use regulation on the value of
a property owner's entire parcel as opposed to its impact on just the regulated part - Federal Courts tend in the opposite direction
iv. PENN CENTRAL TRANSPORTATION COMPANY v. CITY OF NEW YORK (Sup Ct US 1978)
i. NYC designates 400+ sites as historical landmarks in exchange for giving TDRs to the property owners - basically a taking through eminent
domain where the property owner is compensated
ii. Court finds that this does not constitute a taking because the restrictions imposed are substantially related to the promotion of the
general welfare, permit reasonable beneficial use of the landmark site, and also affords appellants opportunities further to enhance the
terminal site and other properties
1) TDRs make this case easier - harder to argue complete diminution in economic value
iii. NY argues that this is just conferring an average reciprocity of advantage - adjusting the benefits and burdens of public life
1) Property owner would want to argue that they are being singled out unfairly to bear costs that society as a whole should bear
v. Distinct investment-backed expectations
i. Courts have different interpretations:
1) Some courts have effectively read investment-backed expectations out of taking law by holding expectations are frustrated only
when a land-use regulation denies all economically viable use of land
2) Other courts have found distinct investment-backed expectations only in instances when regulations interfere with investments
that have already been made, as opposed to regulations limiting possible future investment activities
vi. Transferable development rights (TDRs)
i. Court in Penn Central left unresolved the question whether TDRs can provide the "just compensation" required if a taking has occurred it appears to be the court's view, however, that TDRs can ease the burden of a regulation such that it will not amount to a taking
ii. TDRs is a clever way to get out of takings - once there is a taking, the Constitution requires just (i.e. full) compensation, but a regulatory
taking generally does not occur so long as the land retains substantial (albeit not its full) value - the government can get away with paying
a lot less by paying it before a taking has been found

F. Total Diminution in Economic Value

i. LUCAS v. SOUTH CAROLINA COASTAL COUNCIL (Sup Ct US 1992)
i. In 1986 Lucas paid almost $1 million for two residential lots , lots later decided to be in "no building" zone
ii. Court says that it is a false dichotomy between harm-reducing and benefit-producing terms - if you tell the legislature they need to
formulate their behavior in a certain way, they will just re-characterize their behavior - these are basically word games
iii. New rule - 100% diminution in economic value constitutes a taking - like losing the property/whole bundle of rights
iv. Flip of average reciprocity - singling out a property owner who is forced to bear the entire burden - we shouldn't make Lucas donate his
land for the greater good
v. Restatement 2nd rule - per-se rule - If the behavior being prohibited would otherwise be a nuisance - no taking
1) True in the most literal sense - restatement test/common law nuisance - also true in Penn Central analysis
2) We don't analyze in these terms any more - we don't ask if it's harm-preventing - we apply either Loretto, Lucas, or Penn Central
factors - in the background, we care about whether a regulation provides an average reciprocity of advantage, or whether it is
singling out particular property owners
vi. Court said that SC must identify background principles of nuisance and property law that prohibit the uses he now intends in the
circumstances in which the property is presently found - only then can they claim that the state is taking nothing
vii. Aftermath - Lucas is rarely used to strike down regulations, except where cases cite to the 100% diminution rule - and even then, courts
rarely find this condition to exist

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vii.
rarely find this condition to exist
ii. Better if you're a property owner to get one of the per-se rules applied to you - otherwise you're using an ad hoc test that is unlikely to favor
you
iii. PALAZZOLO v. RHODE ISLAND (Sup Ct US 2001)
i. 1959 - Palazzolo buys 3 lots of largely submerged wetlands - periodically applies for permission to fill but is denied - doesn't do anything
else until 20+ years later - in 1971 RI issued regulations to protect wetlands
ii. Huge ripeness issue here - whether Palazzolo has exhausted his remedies - all of his applications have been haphazard
iii. Take out of this case some hesitancy to apply the conceptual severance - Lucas is pretty limited in its application unless you can
conceptually sever
iv. "A blanket rule that purchasers with notice have no compensation right when a claim becomes ripe is too blunt an instrument to accord
with the duty to compensate for what is taken
v. Court finds that there was not a total diminution because there is some economic value left in the land - but remands because the claims
under the Penn Central analysis were not examined
1) "State may not evade the duty to compensate on the premise that the landowner is left with a token interest"
iv. TAHOE-SIERRA PRESERVATION COUNCIL, INC. v. TAHOE REGIONAL PLANNING AGENCY (US Sup Ct 2002)
i. Issue - does the 32 months moratorium on development constitute a temporary taking?
ii. First English - it used to be the case that the state could just roll back the regulations, but court here says that if a regulation even only
temporarily restricts development/use of land, compensation should be due
iii. Lucas doesn't apply because this isn't permanent
iv. Court concludes that they cannot adopt a broad categorical rule that temporary ban on development, no matter how brief, constitutes a
compensable taking - would apply to normal delays in obtaining building permits, changes in zoning ordinances, etc.
1) Better approach to a temporary taking requires careful examination and weighing of all the relevant circumstances - temporary
nature does not preclude a finding of taking, but should not be given exclusive significance
v. FIRST ENGLISH v. COUNTY OF LOS ANGELES (US Sup Ct 1987)
i. If a government regulation results in a taking, then the government must pay just compensation from the time the regulation first
worked the taking until the government rescinds the regulation or changes it in such a way that no takings occurs
ii. Hence, an undue delay - normal delays brought on by the development permitting process and the like are put to the side - results in
liability for a temporary taking
vi. FYI - California Coastal Commission
i. Passed by voter initiative in the 70's, has extensive land use authority on land within the coastal zone
ii. Has a history of being quite environmentally strong, and trying to ban/limit a lot of development in order to preserve the coastline for
the state of CA
iii. Members of the commission are appointed - recently a lot of the appointments have been democrats

G. Exactions
i. Typically local governments (sometimes states), in exchange for the right to develop, ask the property owners to give somethi ng back in return
ii. Common example of historic use of exactions - developer building a development has to give up land for public streets/sewer lines/etc.
iii. In CA, Prop 13 passes - limits pretty severely property taxes, which were once the major funding source for local governments. Dramatically
limits property taxes, and prohibits re-assessment of property, except in a change of property - only 2% increase per year is allowed. Limits
local government's ability to raise taxes without a 2/3 vote of the populace.
i. Local governments increasingly begin to rely on exactions - asking developers to donate land/amenities that the government can't afford
in response to permits
iv. NOLLAN v. CALIFORNIA COASTAL COMMISSION (1987)
i. CCC says that Nollan can only replace his old, dilapidated house with a new one if he allows an easement along the front of the house to
promote public access to the beach
ii. Court says that the CCC could have banned use altogether - and it would still not work a taking because there is already a house on the
property - they just can't condition development upon an unconstitutional use of the property
iii. To determine whether there is a taking in the case of an exaction - have to look at the "fit - " what harm is the property owner causing by
developing the property, and does the exaction fit that harm?
1) Is there an essential nexus between the condition being exacted and the harm the developer is causing? Needs to be a relatio nship
between the two
v. DOLAN v. CITY OF TIGARD (Sup Ct US 1994)
i. Dolan wanted to expand a commercial development - city wants her to put in a bike path/walkway and greenway - both public
easements
ii. Overall, city has a right to do this - but still might constitute a taking as applied to an individual property owner
iii. Is there is a nexus between the development requested by Dolan and the exaction requested by the city?
1) As opposed to Nollan, this court wants to see more specific findings - say they need to see a rough proportionality - roughly
proportional to the harm that is going to be caused
2) Some states have developed a more stringent test that says that the harm needs to be directly proportional to the exaction - how
you measure that is a tough question
3) Court says there needs to be some sort of individualized determination - what's the harm going to be, and how is that going to be
offset by what the city is demanding?
iv. Court finds that the exaction here is not roughly proportional - it's one thing to set aside land that may protect against floods, but there's
no reason why we have to allow people to walk on that property - better fit if we don't require property owner to open the property to
the public
1) No evidence that the bike/footpath will actually reduce traffic
v. This case is not deferential to local governments - court is suspicious of local governments in these circumstances
1) Local governments often have revenue problems
vi. David A. Dana - game-theoretic model
i. Development regulation consists of one-time games and repeat games
ii. One-time games - when developers only have single projects in mind, nexus/rough proportionality review may lead regulators to impose
less severe development conditions, or even allow unconditional development conditions in some cases
iii. Repeat games - nexus/rough proportionality review may make little difference, because developers will not risk their goodwill with
regulators by suing to challenge conditions that they had previously purported to accept
vii. Academic perspectives on takings
i. Michelman article??
ii. Epstein on takings

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ii. Epstein on takings

1) Essentially libertarian line of thinking - basic argument is that any governmental modifications of rights of possession, use, and
disposition of property are takings, with the exception of nuisance controls
2) Room for the police power in this analysis
3) Some of the takings that result under the analysis can be approved without explicit compensation because they carry implicit
compensation with them
a) Government's action, though it burdens claimants, might provide offsetting compensation by restricting the rights of other
people to the advantage of the claimants
iii. Rubenfeld on public use
1) When government conscripts someone's property for state use, then it must pay
2) The function of the Fifth Amendment's takings provision is to prevent the government from turning individuals into
instrumentalities of the state
a) For example, if state orders destruction of contaminated trees - no compensation because state wasn't putting the land to
use

VII. Estates and Land

A. In General/Definitions
i. Estate system - Concerned with the way the state regulates private agreements (often wills or trusts) made by landowners which purport to
divide specific entitlements in the same parcel among different parties. Mostly concerned with the disposition of property u pon death, but not
always. Many of the cases deal with disposing of property by will, but wills are not the only means by which to dispose of p roperty upon death.
i. If you die without a will, your property is disposed of by statute of descent, or intestacy statute
ii. Can also dispose of property by trust or other will substitutes
ii. Testator/Testatrix - person writing the will/disposing of the property
iii. Devising - act of leaving real property in a will to a beneficiary
iv. Bequeathing - act of leaving personal property (sometimes gets used interchangeably with devising)
v. Devisee - recipients of devised real property
vi. Beneficiaries - recipients of personal property
vii. If someone dies intestate (without a will), property is divided up according to their state's intestacy statute
i. Heirs - those who inherent under the statute (sometimes next of kin or distributees)
1) You cannot be an heir or have heirs until someone dies
ii. Issue - descendants (children, grandchildren, etc.)
iii. Ancestors - parents usually take as heirs if the decedent leaves no issue
iv. Collaterals - all persons related by blood to the decedent who are neither descendants nor ancestors
1) Rules for determining which of the more remote collateral kindred take were rather complicated at common law and remain so
today
v. Property escheats to the state if you die with no heirs and no will.
viii. Per stirpes - Under intestate statutes, property typically descends by representation (per stirpes)
i. In other words, the property is divided by share
ix. Trusts
i. Typically designed to separate the burdens of property management from the benefits of ownership
ii. Trustee - person designated by the settler (person who established trust) - manages property on behalf of the beneficiaries
1) Today most life estates are created in trust
iii. Trusts have the result of avoiding the probate system - can be an expensive/time consuming process
x. Will substitutes
i. Life insurance, pensions, joint checking accounts - can designate a beneficiary, and avoid probate all together/dont need to do anything
in a will
xi. Estates
i. Different way to control the use of property - can be used to limit what is done with property in the future. Also determines who will
own the property in the future. The legal system authorizes owners to control who will own the property in the future by defining ways
to divide the property interests over time.
ii. Interest which is or may become possessory, and is measured by some period in time, even if that period is indefinite
iii. All interests in land are either possessory or future:
1) Possessory interest - entitlement that gives someone a right to land at a given moment - the owner has a right to possess now
2) Future interests either will or might give you the right to land at some future date
a) Future interests are presently existing interests, even if the owner does not have the right to possession until a future date the owner of a future interest still has immediate rights.
iv. Life estate per autre vie - if A transfers his life estate to B, B has a life estate per autre vie - that is, an estate that is measured by A's lifespan, not B's
xii. Waste
i. if first person owns the land in question, they cannot completely waste that property/reduce its value
ii. First person has duties to maintain the land, and second person has corresponding rights to prevent the waste
xiii. Fee simple/fee simple absolute on life estates
i. Largest estate on terms of ownership, and connotes absolute ownership
ii. Absolute ownership can still be limited by things like nuisance law, adverse possession, etc.
iii. Fee = interest in land, simple = of indefinite duration, absolute = no interests that could restrict ownership
iv. If you transfer the fee simple to a new owner, the new owner will likewise have all of these rights
v. Traditionally, to transfer a fee simple absolute, you had to use the right words, without which the transfer would not be honored
1) Under modern law it is presumed that transfer will transfer the largest estate that the testator owned - special language is not
required
xiv. Life estate
i. Followed by every life estate is a future interest
1) Either reverts back to original transferor (reversion), or it goes to a 3rd party (remainder)
xv. WHITE v. BROWN (Sup Court TN 1977)
i. Jessie Lide dies leaving a handwritten will (no witnesses) appointing Perry as executrix and White to live in her home but not sell it

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i. Jessie Lide dies leaving a handwritten will (no witnesses) appointing Perry as executrix and White to live in her home but not sell it
ii. Lide has two sisters who quitclaim any interest in the estate, and 12 nieces and nephews who are the ones suing
iii. This case shows what happens when you have ambiguities - what default positions will courts take when trying to interpret ambiguous
language?
iv. We don't want to assume that someone who had a will is nonetheless going to be subject to intestacy statute - want to avoid intestacy
whenever possible
v. Court concludes that Lide meant to pass a fee simple absolute to White - but declared the attempted restraint on alienation void
xvi. Rule against direct restraints on alienation
i. Such restraints make property unmarketable - particular land may be unavailable for its highest and best use
ii. Restraints try to perpetuate the concentration of wealth by making it impossible for the owner to sell property and consume the
proceeds of the sale - restrained owner cannot dissipate the capital
iii. Restraints discourage improvements on land - owner is unlikely to sink money into improvements on land that he cannot sell
iv. Restraints prevent the owner's creditors from reaching the property, working hardship on creditors who rely on the owner's enjoyment
of the property in extending credit
v. It is sometimes said that a restraint on alienation is repugnant to a fee simple and void for that reason
vi. Classification of restraints on alienation
1) Disabling restraint - withholds from the grantee the power of transferring his interest ( White)
2) Forfeiture restraint - provides that if the grantee attempts to transfer his interest, it is forfeited to another person
3) Promissory restraint - provides that the grantee promises not to transfer his interest - if valid, is enforceable by the contract
remedies of damages or an injunction. Rare except in the landlord -tenant context.
vii. Restatement provides that all absolute restraints on fee simples are void, but partial restraints are valid if, under all the circumstances of
the case, the restraint is found to be reasonable in purpose, effect, and duration

B. Defeasible Estates
i. An estate upon the happening of another event
ii. Defeasible fee - The present interest that occurs upon the happening of some other event besides the death of the owner
i. Can go to original grantor or 3rd party
iii. Fee simple determinable
i. If the future interest goes automatically to the grantor upon the happening of the stated event
ii. Future interest is the possibility of reverter
iii. Fee simple determinable is of a durational nature - see language like "so long as, while used as, until, during the time that, while"
iv. Sometimes see the possibility of reverter actually spelled out
v. Any language you see that looks like it's limiting ownership to a time period where certain conditions are met will generallybe
interpreted that the grantor meant to cut off possession automatically if the condition wasn't being met
iv. Fee simple subject to condition subsequent
i. Discretionary right - owner retains the right to re-enter the property, but doesn't have to - comes back to owner only if she chooses to
exercise her rights - can retain the right to decide whether she is going to exercise her right to re-take the property
ii. Courts when in doubt like to assume that it was a fee simple subject to condition subsequent
iii. Future interest is called right to re-entry or power of termination
1) Unlike a possibility of reverter, the right of re -entry needs to be spelled out - we don't imply it
iv. Words you need to say are different from fee simple determinable - connote a condition
1) "provided that"
v. Reversion - amount left to owner if he transfers less than he actually owns
i. Fee simple absolute is unlimited in duration
ii. Reversionary interest may or may not be certain to become possessory
iii. Possibility of reverter (??)
vi. Big difference between Fee Simple Determinable and Fee Simple Subject To Condition Subsequent is how the statute of limitatio ns is applied
i. Fee Simple Determinable
1) SoL begins to run when the condition is broken - property should transfer automatically - original owner should do something to
make sure that happens
2) In theory, it doesn't automatically revert - you have to go out and do something to get the property back - if no one does anything
about the possibility of reverter, it kind of works in the same way as a right to re -entry
3) Not impossible to imagine adverse possession - if the person who owns the Fee Simple Determinable violates the condition but
continues to use it in an open an notorious way, and then claims adverse possession because the statute of limitations has ru n
ii. Fee Simple Subject to Conditions Subsequent
1) SoL doesn't begin to run until you attempt to re -enter and are rebuffed
2) If you are the person in possession of the Fee Simple Subject to Condition Subsequent, and you start to use it in a very obvi ous
way, what would your argument be after doing this for 12 years?
a) Might have a defense of latches - equitable defense - not really fair
b) You should have come forward and exercised your right, and therefore you're barred from bringing this action
iii. Reality is, the different between a FSStCS and a FSD is slighter than it appears
1) Different defense - not a defeat of the adverse possession claim, but just that original owner doesn't get to bring their action
vii. If you see conditional language (not fee simple determinable language) with nothing following it (don't spell out right to re -entry) general rule
of construction is that courts are likely to construe this as a covenant, not a fee simple determinable
i. Breach of a covenant leads to damages or an injunction
ii. Court prefers covenants
iii. "Provided that" "On the condition that"
viii. How to value defeasible estates
i. If you are the holder of a possibility of reverter - not much value - as long as the condition is being met, you don't get anything forever
ii. More complicated if the gift has been to a public jurisdiction and they want to stop using the property for the reason it wasgiven
1) In that instance the city is suddenly saying that they don't have to compensate you for the value of the future interest, eve n though
the grantor would get it back if they hadn't given it to a public entity
a) Courts are reluctant to uphold that - they say there is still value when the condition has been violated
b) Value is probably what it would take for the city to acquire similar property for similar purposes - difficult to tell
ix. Devises that attempt to cut off support to spouses who remarry
i. Courts don't mind upholding cutoff of support if the condition isn't trying to prevent re-marriage, but instead just making sure that the
ex-spouse has adequate support throughout their life

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i.
ex-spouse has adequate support throughout their life
ii. Courts will, generally speaking, construe restraints on marriage as narrowly as possible

C. Remainders
i. Two types of remainders:
i. Vested Remainder(3 types)
1) Absolutely vested remainder - not subject to change, no question that the person who is supposed to get the remainder will get
the remainder
2) Vested remainder subject to open - vested remainder subject to partial divestment
a) If the remainder will be divided among people to be born in the future (typically children or grandchildren)
b) Could have the very same devise and it would be a contingent remainder - for example, contingent upon A's children being
born - something can switch from being a contingent remainder to a vested remainder subject to open
c) Class typically closes when a remainder becomes possessory - "to B for life, then to A's children and their heirs" - class closes
when B dies, whether or not A has more children - the rest of A's children who are not born yet are out of luck (unless it's
drafted differently)
3) Vested remainder subject to divestment - can be removed by the executory interest - remainder that you're going to get, but you
still could lose it - condition after that could take it away from you
ii. Contingent Remainder
1) The remainder will take effect only upon the happening of an event that is not certain to happen - you get something if something
else happens
2) Will also occur if it is to go to a person who cannot be ascertained at the time of the initial conveyance
3) Contingent remainder can become a vested remainder when the contingency is removed
4) Difference between a vested remainder subject to divestment and a contingent remainder is pretty small
a) VRStD contains language where the condition is attached after there's a vested interest, and can then be taken away - "To A
for life, then to B and his heirs, but if B should fail to graduate from law school, then to C"
i) B has a vested remainder subject to divestment - will be taken from him if he fails to graduate
b) Contingent remainder is the same idea, drafted differently - incorporates the condition into the gift
i) "To A for life, then to B if he graduates from law school, otherwise to C"
c) Two differences that are relevant
i) VRStD becomes possessory after the life estate expires, then can be taken away if condition isn't met - CR is drafted in
a way so that B doesn't get the property until he graduates from law school, and C gets it in the meantime
- In above, B gets it, and if he never meets the condition it is divested from him upon death
ii) CR are subject to the rule against perpetuities - VRStD are not
- Exception - VR subject to open (class gifts) are subject to the rule
d) Courts prefer vested remainders
e) If it is clearly drafted as a contingent remainder it is a contingent remainder

D. Executory Interests
i. Any future interest in a grantee that is not a remainder is an executory interest
ii. If it cannot become a present interest at the natural end of prior interests created in the devise/conveyance, it is an execu tory interest
iii. If it will divest another interest of a prior transferee, it is an executory interest - future interest in a third party that must cut off/cut short
someone else's interest in land
i. No legal different between swinging and switching executory interest

E. Rule against perpetuities

i.
ii.
iii.
iv.
v.

vi.
vii.

viii.

ix.

x.

No interest is good unless it must vest, if at all, no later than 21 years after the death of some life in being at the creat ion of the interest
Rule is an attempt to limit dead hand control - the extent to which someone can control their property beyond their death
Only three interests are subject to the rule - contingent remainders, executory interests, and class gifts
Oddity of the rule is that you are trying to determine whether there is any possibility that the executory interest, continge nt remainder, Vested
Remainder Subject to Open will be void, no matter how remote the possibility
Need to look for a validating life - someone who is alive at the time an interest is created
i. Will - at the time of the death of the testator
ii. Trust - at the time the trust is signed for a revocable trust
iii. Conveyance - at the time conveyance is created
Trying to find an enabling life who will allow you to prove that the contingent interest will vest within the life of, or at the death of, the
validating life, or within 21 years after the death of the validating life
Who can be a life in being?
i. Anyone named in the conveyance or the devise
ii. Intervening generations who were alive at the time the interest was created
1) O grants to A, but if A ceases to use the land for gambling purposes, to the grandchildren of B
2) Validating lives: A, B, B's children, B's grandchildren who are alive at the time of the devise - intervening generation (B's children)
can be lives in being
When does an interest vest?
i. Executory interest - the moment the contingency occurs - at exactly that moment the future interest becomes possessory
1) From O to A, as long as used for gambling purposes then to B - B's executory interest will vest when the land ceases to be used for
gambling
ii. Contingent remainder - when the condition that makes it a contingent remainder disappears, even if it does not become possessory at
that moment
1) O grants to A for life, then to B provided that B finishes law school
2) Might not necessarily become possessory when B finishes law school if A is still alive
iii. Vested remainder subject to open - Vests when each class member's interest is fully vested
1) O to A for life, then A's children who reach the age of 21
2) Vested remainder subject to open is fully vested at the time the last child turns 21
In applying rule (1) identify vested interest (2) ask yourself what lives were in being at the time the transfer took place, and (3) determine if the
future interest will vest more than 21 years after the deaths of the lives in being
i. If the future interest violates the rule, strike it out and see what's left - whatever's left must also comply with the rule
Frequently a problem with the rule against perpetuities - fee simple determinable followed by executory interest

F. Rule against perpetuities reform

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F. Rule against perpetuities reform

i. Wait and see for the common law perpetuities period - figure out what actually happened and did it happen within the appropriate time frame
ii. Anything wrong with the wait-and-see jurisdiction?
i. Seems to make sense on one level - gets rid of ridiculous assumptions
ii. On the other hand, could have to wait and see quite a long time - keeps a cloud on title
iii. Final reform (CA)
i. Wait and see for 90 years after the devise, then try to reform the contingent interest to conform with the interests of the owner
ii. Might make sense in cases like the school board cases - probably the owner's intent to leave the property with the school board

VIII. CONCURRENT INTERESTS

A. Outline - Common law concurrent interests
i. What are the separate and concurrent interests?
i. What rights flow from each of those concurrent interests
ii. What remedies exist for joint tenants who can't get along
ii. How do the elective share provisions work, and what assets do they cover?
iii. Community property
i. What happens when community and separate property is mingled?
iv. What happens with each of the concurrent interests if a couple moves to a different state - how does that interact with forced share or nonforced share provisions?
v.
vi.
vii.
viii.

Joint tenancy
Tenancy in common
Tenancy by the entirety
Community property
(keep in mind which carry rights to survivorship and which dont)

ix. Riddle v. Harman - how you can destroy

x. What are the remedies if the concurrent owners split?
i. Delfino - partition by sale/partition in kind
ii. Swartzbaugh - lease interest without destroying joint tenancy
1) Joint tenant can file an ouster for rent (??)
iii. Co-tenants can not compel repair money from another co-tenant, but can get credit for a repair in an accounting
iv. For improvements to a property, co-tenants can't get a contribution from other co-tenants, but in an accounting gets the increase in
value as a result of the improvement
xi. Owelty - if there is a partition in kind and you can't divide evenly, then the person who gets the bigger share can be required to pay the person
who gets the smaller share
xii. Consequences of community property upon death or divorce
xiii. Equitable distribution v. community property
xiv. Is a degree property? Conflicting views

i. Rights of domestic partners to marry

i. Importance - benefits and burdens of property distribution that flow from marriage
ii. What are the arguments about whether prohibiting same-sex couples from marrying are rational?
i. What are the provisions upon which the MA supreme court relies?

B. In General
i. Three types of concurrent interests - All involve co-ownership - owners own at the same time, not consecutively as estates are concerned with
i. Tenancies in common
1) Each person has a separate but undivided interest
2) Each person has the rights to the whole property, but owns a fraction
3) Parties do not have to own equal fractions of the land
4) Can be conveyed at different times, by grant or will
5) No right of survivorship - surviving tenants do not get the share of one who dies - passes by intestate succession
6) Can be reached by creditors before and after the tenants death
7) Favor for a tenancy in common, not joint tenancy (flips historical presumption)
8) Even if you qualify for tenancy in the entirety/joint tenancies, you can still just own as tenants in common
9) Example - to A for life, then to A's children - children are tenants in common
10) Most states will presume a tenancy in common over a joint tenancy
ii. Joint tenancies
1) Unities:
a) Time - tenants must take interest at the same time
b) Title - must acquire interest by the same instrument - can never arise by intestate succession or other act of law
c) Interest - must have equal undivided shares and identical interests measured by duration
i) Largely ignored today when it counts
d) Possession - must have the right to possession of the whole - cannot exclude a co-owner from any part of the property. If
they do exclude, the excluded joint tenant could have a cause of action for ejectment
2) Most important fact - carries with it the right of survivorship - interest immediately transferred to joint tenant upon death
a) Estate continues in the survivors free from the interests of the decedent - decedent's rights are extinguished
3) Advantage - avoids probate
4) Joint tenancy can be destroyed by any of the tenants conveying to a 3rd party - in most jurisdictions, without notice to the other
tenant
a) If one person conveys her joint tenancy to a third party, time and title unities are destroyed - Have the same interests, but
only as tenants in common
5) Joint tenancy cannot be conveyed by will - joint tenant's interests disappear upon death

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5) Joint tenancy cannot be conveyed by will - joint tenant's interests disappear upon death
6) If a creditor acts during the lifetime of a joint tenant, can seize and sell the interest - severs the tenancy
a) If creditor waits until joint tenants death, they have nothing to go after
7) For estate tax purposes, the interest the survivor possesses is subject to estate tax (big marital deduction)
8) Right of survivorship in a joint tenancy is contingent upon surviving your joint tenant, and not getting screwed over by your joint
tenant
iii. Tenancy by the entirety
1) Same requirements as joint tenancies, plus marriage
2) Generally speaking can only be created in a husband and wife
3) Like joint tenancy, have right to survivorship
4) Can't sever without consent of the other party
5) Typically, tenancies by the entirety are severed by divorce or death
6) Community property title can also not be severed without consent of the spouse
7) Exists today in fewer than half the states
ii. RIDDLE v. HARMON (Ct App CA 1980)
i. Mr. and Mrs. Riddle purchased real estate as joint tenants, but Mrs. Riddle doesn't want her husband to get the right of survivorship shortly before her death, Mrs. Riddle sees a lawyer in order to terminate the joint tenancy
1) In the past, couldn't sever a joint tenancy by simply transferring a deed to yourself
2) If Mrs. Riddle had wanted to do this "legitimately," she would have to enlist an intermediary strawman - would grant the property
to this third party, who would then grant it back - could argue that this is helpful because it involves more witnesses
ii. Issue of notice to co-tenant - across the US notice is not required - even if the purpose is to mislead the other joint tenant
1) True even if the person against whom the severance is worked can't make plans for his/her disposition of the property
iii. CA has a rule that the severance will only be effective if you record the notice before the death of either tenant
iv. Most states require evidence that you clearly intended to sever
v. "Common sense as well as legal efficiency dictate that a joint tenant should be able to accomplish directly what he could otherwise
achieve indirectly by use of elaborate legal fictions"

C. Partition
i. Judicial partition
i. If tenants in common or joint tenants cannot solve their problems by mutual agreement, any one of them can bring an action for judicial
partition
ii. In a partition action, a court will either physically partition the land into separately owned parts or order the land sold and divide the
proceeds among the tenants
iii. Not available for tenants in the entirety
ii. DELFINO v. VEALENCIS (Sup Ct CT 1980)
i. Angelo and William Delfino own 99/144 interest in the property, Helen Vealencis owns 45/144
ii. Plaintiffs want to create a residential subdivision - want a partition by sale (split the value of the land/purchase the land themselves)
iii. Defendant wants to partition the land in kind - basically just split the land
1) Defendant has run garbage disposal business on her land since the '20s, but no garbage is actually ever on the land - (no nuisance)
iv. Standard for deciding whether to divide the land in kind or partition by sale
1) Presumption is partition in kind - Courts say that they prefer partition in kind, but usually end up partitioning by sale
2) Partition by sale factors:
a) Physical attributes are such that partition in kind is impractical or inequitable (gives you more room to argue) - land isn't
easily divisible
i) Not the case here - it's a 20.5 acre rectangular plot
AND
b) Whether the interests of the owner would be promoted by sale
i) By definition, each party thinks they have different interests or they wouldn't be engaged in the partition argument
ii) Seems to be a completely meaningless standard in some ways
v. Court awards Vealencis three lots, but makes her pay Delfinos for the inconvenience of running her garbage business
iii. ARK LAND CO v. HARPER (W. Va. 2004)
i. Involved 75 acres of farm land and buildings owned by the Caudill family - in 2001 Ark Land bought 2/3 of the property and wanted to
purchase the rest but family refused to sell
ii. Ark Land sought petition by sale, hoping to purchase remaining interests - trial court granted relief because of evidence that partition in
kind would add millions of dollars of cost to the coal mining operation Ark Land was planning
iii. Supreme Court of appeals reversed - said that partition by sale can work hardship on owners unwilling to sell because they have
emotional attachments to the land - money alone cannot compensate for losses
1) The fact that the economic value of the property as a whole would be less if partitioned in kind is relevant but not disposit ive
iv. Partition has much to do with fair and equitable treatment of the interests of co -tentants - often there is no clear answer one way or the other

D. Benefits and Burdens of Co-ownership

i. SWARTZBAUGH v. SAMPSON (Ct App CA 1936)
i. Husband Swartzbaugh signs two agreements to lease land to Sampson in order to hold boxing matches - wife Swartzbaugh sues to cancel
leases, claiming that she did not consent to leases - Property is owned by husband and wife as joint tenants
ii. Court holds that joint tenancy is not destroyed by the husband leasing a portion of the property, and there is no evidence that wife has
been ousted or prevented from using the lease property
1) In order to prove that she has been excluded, Sampson would have to take some action that would bar her from property
(changing locks, erecting barriers, etc.)
iii. Since wife has not lost anything (husband merely conveyed his legal right to occupancy to Sampson), she cannot demand compensation
from husband OR void the lease
iv. Options available to wife
1) Seek partition of lease - Put the lease up for sale
2) Seek partition of entire property - Unlikely, as wife would not want to lose right to survivorship
3) Ouster - Can only be used if wife attempts to enter leased land and is prevented from entering by lessee
4) Accounting - Ascertain all rents paid, and seek equitable division - however, this action results in wife giving up the option to
challenge the lease
v. Once husband dies, his interest would expire, and then wife would be free to void/cancel lease
vi. "A lease to all of the joint property by one joint tenant is not a nullity but is a valid and supportable contract in so far as the interest of

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vi. "A lease to all of the joint property by one joint tenant is not a nullity but is a valid and supportable contract in so far as the interest of
the lessor in the joint property is concerned"
ii. Remedies available to co-tenants
i. Repairs
1) Some states hold that you cannot compel contributions from co-tenants for repairs
a) Logic is that a fee simple holder, by himself, is not required to make repairs, so should not be compelled to contribute
2) Other states hold that contributions must be made from co-tenants
3) In an accounting, the person who has paid for repairs receives a credit, and essentially receives a little more in an equitab le
proceeding
ii. Improvements
1) In most jurisdictions, the person who pays for the improvements is not entitled to contribution
2) In an accounting, the person making the improvements gets any additional value added to the sale by the improvement, but
otherwise does not receive a credit
iii. Taxes/mortgages
1) A cotenant paying more than her share is entitled to contribution
1) Adverse possession
1) A cotenant who has ousted other tenants and has exclusive possession cannot take property by adverse possession UNLESS she
gives clear and convincing notice to other tenants that she is repudiating the title
2) Owelty
1) In a partition in kind, if the court cannot equalize the tracts, it can order payment from the party getting the more valuabl e portion
to the party getting the less valuable portion to equalize
iii. Summary of right/remedies of joint tenants
1) Rights
1) Right to sell, lease, give away, but a joint tenancy cannot be devised
2) Right to survivorship is destroyed by selling/giving away joint tenancy, but not by leasing
2) Remedies
1) Partition in kind or by sale
2) Accounting (to ascertain assets and liabilities, with improvements measured by value added to property, and repairs & rents f rom
leases included)
3) Ouster (only if there exists affirmative evidence that you have been excluded by cotenant)
a) Remedy can be either injunction (allows you to reenter property) or damages (equal to half of reasonable rental income)

E. Marital property
i. Two basic approaches
1) Community property
1) 8 states, including CA
2) Spouses are part of a community to which they contribute to equally - proceeds of community are owned 50% by each spouse
3) Earnings of either spouse during marriage, and items purchased with such earnings are community property
4) Property brought to the marriage or received by one spouse through gift or inheritance is separate property
5) If in doubt, presumption is that property is community property
6) Spouse can only convey interest/share with consent of other spouse
7) Community property cannot be changed into separate property merely by stating intention to do so
8) Upon divorce, presumption is that all property of the couple is community property unless it can be shown otherwise
a) Burden of proof is on party claiming that property is separate and not community
9) Differences from joint tenancy
a) Spouse can devise by will their half of community property
i) Example- couple owns house in Cali as joint tenants. Husband dies, and devises his portion of the house to his kids.
Who owns house?
- Since they hold as joint tenants, wife owns entire house. However, if the house was held as community property,
husband could will his share to children
10) Differences from tenancy in entirety
a) Same example as above, except that house is owned in tenancy in the entirety
i) Husband cannot devise property to children, as there is a right to survivorship
ii) Tenancy in the entirety can only be destroyed with consent of spouse or divorce
11) Once something is community property, it doesn't change without consent of both spouses - even if you move
a) CA recognizes quasi-community property - if you move from NY to CA, property acquired in NY is treated as quasi community
property
b) Once the property has been initially characterized, the ownership does not change when the parties change their domicile
unless both parties consent to the change in ownership
c) Upon death, the laws of the decedent's domicile at death govern - law where land is located governs the disposition of land
12) The community property must be managed for the benefit of the community - each spouse must act in good faith in exercising
authority
2) Equitable distribution
1) Based on historical concept of husband and wife as one entity, and husband had right to full possession and control of proper ty,
including property brought into marriage by wife
2) Differences occur in the way the states define what marital property is subject to equitable distribution
a) Some include all property owned by either spouse, whenever and however acquired, others limit to property acquired during
marriage, some limit to property acquired by the earnings of marital partners
3) Common law - upon divorce property was given to title holder (usually man) - woman was not regarded as a legal entity once
married; and barriers to divorce existed
4) Recent trend toward equal division of property upon divorce
ii. Community property vs. equitable distribution-do women or men fare better in one or the other?
1) In both, women and children tend to have a lower standard of living following a divorce than men
1) Women are more likely to have custody of children
2) Alimony is more common now, but not nearly as common as it was prior to the institution of 'no fault' divorce in early 1970s
1) In equitable distribution states, women are more likely to get less than 50% of all assets
iii. Mixing separate and community property

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1) In equitable distribution states, women are more likely to get less than 50% of all assets
iii. Mixing separate and community property
1) Suppose that H had taken out life insurance policy before marriage - $3K in premiums had been paid before marriage and $7K during.
1) Inception of rights state (Texas)
a) Character of the property is determined at the time the spouse signed the contract of purchase - community is entitled only
to a return of community payments plus interest
b) Life insurance policy owned by him, community is entitled to contributions - $7K plus interest
2) Pro rata state (CA, WA)
a) Community payments "buy in" a pro rata share of the title
i) 3/10 is H's - goes to son, 7/10 is community - 3.5/10 goes to her, 3.5/10 is H's - goes to his son
3) Time of vesting rule
a) In the case of installment payments on a property/house, title does not pass to the purchaser until all of the installments are
paid - determined when the title actually passes
iv. IN RE MARRIAGE OF GRAHAM (Sup Ct CO 1978)
1) Issue is whether an MBA can be counted as property upon dissolution of marriage
1) Anne Graham spent the whole duration of their marriage working, plus doing all of the housework
2) Dennis got both a bachelors and masters degree during the course of the marriage
3) Anne contributed 70% of the cost of living during the marriage
2) Anne wants part of the earning capacity that he gets from the MBA - she doesn't qualify for alimony because she can provide for herself they dont have any assets to split
3) Court's arguments about why degree doesn't constitute property
1) Doesn't have exchange value, however...
a) Organs - you have the right to them, but can't sell them
b) Social security - can't sell it to someone else but it's yours
c) Pensions/causes of action have value but you can't sell to someone else
2) Not inheritable, however...
a) Life estate is not inheritable
b) Joint tenancy is not inheritable - just right to survivorship
3) Like the Moore case where the court assumes that property has to have certain attributes - can counter a lot of these assumptions
4) Court also says that a degree is a result of years of accumulated education and hard work
a) Labor theory drives this intuition - but there are other kinds of property that are all about labor - patent, copyright
4) Have to also take into account what's fair/what were the expectations of the parties
5) Court concludes that education can be a relevant factor in determining spousal support, but not property in and of itself
v. Rules in other jurisdictions
1) California rules:
1) Basically requires the community (the couple) to be reimbursed for community contributions to education or training that
substantially increases a party's earning capacity
2) She would be entitled to half of the contributions
3) If you are divorced 10 years or more after the contributions have been made -no reimbursement requirement
2) NJ required reimbursement alimony
3) NY is alone as defining a professional degree as a marital asset (O'Brien v. O'Brien)
vi. ELKUS v. ELKUS (Sup Ct NY 1991)
1) Couple got married while they are in school, Frederica had a career that was just beginning - by the end she is making $$$
2) The husband is supposedly her voice teacher, critiques her performances, travels with her, takes photos, etc., and is the primary
caregiver to the two children - his argument to why he is entitled to equitable distribution of her future earning capacity - he helped her
during a career, made it possible for her to become so successful
3) Best argument why this does not constitute property - it is an innate talent, not a degree
4) Celebrity goodwill and professional good will are things that most courts recognize - subject to equitable distribution
1) Future goodwill that the person has earned from their reputation/from their career
5) Court found that it is the nature and extent of the contribution by the spouse seeking equitable distribution, rather than the nature of
the career, whether licensed or otherwise, that should determine the status of the enterprise as marital property

F. Termination of marriage by death

i. Dower
1) For personal property, wife typically took a 1/3 upon her husband's death if there were children, otherwise 1/2
2) For land, would get 1/3 of a life estate
3) Now extended to husbands in few jurisdictions that recognize dower
ii. Typically spouse can renounce a will if the share you get in the will is less than the elective share in the statute - basically can't just disinherit a
spouse

G. Rights of domestic partners

i. MARVIN v. MARVIN (CA 1976)
1) Contract for property division or support can be implied from the conduct of the parties
2) In this case, girlfriend had supported boyfriend through his career though they were unmarried
3) CA has extended implied contract theory to same-sex relationships
ii. GOODRIDGE v. DEPARTMENT OF PUBLIC HEALTH (Sup. Ct. MA 2003)
1) 7 same-sex couples apply for marriage licenses in MA and are denied - court upholds the right for same-sex couples to marry
2) Court found that the marriage ban did not meet the rational basis test for either due process or equal protection
3) Is this the right institutional forum in which to make this change? Institutional confidence question
1) If this is such a decisive issue - it should be left up to the people/legislature to decide
a) One argument that it may make more sense to have judges stay away from the discussions - legislatures might actually be
more lenient
2) On the other hand
a) This is a really important liberty issue - it is the court's responsibility to decide on these issues
3) Court says that they "owe great deference to the Legislature to decide social and policy issues, but it is the traditional an d settled
role of courts to decide constitutional issues"
4) Typically states have recognized a marriage in one state as a marriage in another
1) Under the defense of marriage act, this has changed
2) MA has also been limiting the right to marry to people who live in MA

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2) MA has also been limiting the right to marry to people who live in MA
3) Also a question about recognizing marriages of people in other countries
iii. Benefits/responsibilities of marriage
1) Benefits:
1) Joint interest tax filing, tenancy in the entirety, homestead crediting, elective share, intestate succession, equitable divi sion upon
divorce, medical benefits of the spouse, social security benefits (federal benefit)
2) Possible downsides
1) Equitable division upon divorce, alimony
3) Federal benefits are not conferred, even in states where gay marriage is recognized
iv. The traditional conflict of laws rule is that if a marriage is valid where contracted, it is valid everywhere
1) Theoretically, if a foreign gay couple moves to the US it should be valid

IX. LANDLORD TENANT LAW

A. Outline
i. Different types of leases
1) Term of years - definitive times, parties can't terminate early, no notice has to be given
2) Periodic tenancy - same but renews automatically
3) Tenancy at will - largely disfavored, terminates at will
ii. Duties
1) Tenant's duties
1) Can't waste
2) Sublease/assignment - some responsibility on the part of tenants/some on the part of landlords
a) Pestana - Lessor can object to an assignment only with a reasonable basis - question of fact as to what constitutes a
reasonable basis - Reasonable doesn't include just wanting to get higher rent
2) Landlord's duties
1) Covenant of Quiet enjoyment
a) Includes rights and responsibilities
b) Traditional view - eliminating nuisances, complying with contractual provisions
c) Important for commercial real estate purposes - many jurisdictions do not extend implied warranty of habitability to
commercial
2) Illegal lease
3) Implied warranty of habitability
a) Hilder v. St. Peter
b) Building codes are a starting point but not definitive
4) Duty to mitigate
a) Sommer
i) Majority view
b) Complicated questions about whether the duty has been met, whether the landlord has done enough, etc.
c) Berg v. Wiley
i) Can't use self-help for defaulting tenants - use summary eviction proceedings
5) Statutory responsibilities in the selection of tenants
a) FHA
i) Exemptions
- Protected groups
- Advertising
- Starrett City
b) Civil Rights Act of 1866

B. In General
i. Not dissimilar from estates, except parties are not co-owners
ii. 3 types of leasehold estates
1) Term of Years
1) Estate that lasts for some fixed period of time or for a period computable by a formula that results in fixing calendar dates for
beginning and ending, once the term is created or becomes possessory
2) In some states statutes limit the duration of terms of years
3) Must be for a fixed period, but can be terminable earlier upon the happening of some event or condition
4) Because it states from the outset when it will terminate, no notice of termination is necessary to bring the estate to and en d
2) Periodic Tenancy
1) A lease for a period of some fixed duration that continues for succeeding periods until either the landlord or tenant gives n otice of
termination - if notice is not given the period is automatically extended for another period
2) Under common law rules, half a year's notice is required to terminate a year-to-year tenancy
a) For any periodic tenancy of less than a year, notice of termination must be given equal to the length of the period, but not to
exceed 6 months
b) Notice must terminate the tenancy on the final day of the period, not in the middle of the tenancy
c) In many states, statutes have shortened the length of notice required to terminate periodic tenancies and have permitted a
month-to-month tenancy to be terminated at any time following 30 days' notice
3) Tenancy at will
1) Tenancy of no fixed period that endues so long as both landlord and tenant desire
2) If the lease provides that it can be terminated by one party, it is necessarily at the will of the other as well if a tenancy at will has
been created - However, a unilateral power to terminate a lease can be engrafted on a term of years or a periodic tenancy
3) Tenancy at will ends, among other ways, when one of the parties terminates it (or upon death of one party)
4) Modern statutes ordinarily require a period of notice - say 30 days or a time equal to the interval between rent payments - in order
for one party or the other to terminate a tenancy at will
4) Differences between the three mainly have to do with notice

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4) Differences between the three mainly have to do with notice

5) If the lease is silent but calls for monthly rental payments, most courts would consider this a periodic tenancy

C. Leases
i. Matters primarily whether or not an arrangement amounts to a lease because leases give rise to the landlord -tenant relationship
ii. Leases are both conveyances and contracts
1) Lease transfers a possessory interest in land, so it is a conveyance that creates property rights
2) Leases also usually contain a number of promises (or covenants) so the lease is a contract to, thus creating contract rights
iii. Modern trend has been to reform the property law of landlord and tenant by importing into it much of the modern law of contra cts
iv. Rise in contract law has to some degree been offset by a belief that the parties in a landlord -tenant relationship are not in an equal bargaining
position (particularly in residential situations)
1) Tenants are usually less well off as a group, and there is an assumption of lack of available housing in some urban areas
v. Lots of landlords use form leases - less room for negotiation, but also a lot easier for the landlord
vi. Sometimes confusion about what constitutes a lease
1) Courts come out in both directions - look at what language was used/does the tenant have a right of exclusive possession/how much
control does the tenant have/what difference does it make if it's a license v. a lease
1) Might make a difference in right to terminate, whether you can assign your interest to someone else
vii. Subletting v. assignments
1) Anything less than assigning the entire interest the tenant possesses is a sublet
2) An assignment transfers the entire interest in the lease
viii. KENDALL v. ERNEST PESTANA, INC. (Sup Ct CA 1985)
1) First contract is between the Perlitches and the City of San Jose
1) Perlitches assign their interest to Pestana
2) Prior to assigning their interest to Pestana, Perlitches enter into a 25-year sublease with Bixler
3) Bixler tries to sell with existing lease to Kendell and O'Hara - needed Pestana's consent - Pestana declines consent
2) Kendell and O'Hara want Pestana to be subject to a contract doctrine of good faith and fair dealing
1) Pestana can only withhold consent for good reason
3) Courts don't want to restrict alienability - withholding consent for an assignment for no apparent reason does not encourage alienability
4) New legal rule - where a commercial lease provides for assignment only with the prior consent of the lessor, such consent may be
withheld only where the lessor has a commercially reasonably objection to the assignee or the proposed use
1) An increase in the value of the property during the term of the lease does not count - lessor is free to build periodic rent increases
into the lease - other than that, has to wait until the end of the lease term to realize benefits
5) The reasonableness requirement is a standard (as opposed to a rule) - there are a series of cases that follow this case that raise
questions about what constitutes reasonableness
ix. Bargaining Power
1) In the commercial context - the response is typically that if you are explicit about the consent provision in the contract, we will assume
the contract has been created with equal bargaining power
2) In the residential context - we can probably assume that tenants have less bargaining power
1) Seems like landlord should have more say about who lives in their building
2) There are lots of subjective reasons that landlords would not want a certain class of tenants in their building
3) No state court has acted to create a reasonableness requirement in a case involving only a residential lease - courts are not
persuaded that there is "such a necessity of reasonable alienation of residential building space that they ought to impose on
residential landlords a reasonableness requirement to which they have not agreed."

D. Tenants duties - Defaulting tenant in possession

i. Under common law rule, a tenant who is evicted by his landlord may recover damages for wrongful eviction where the landlord e ither had no
right to possession or where the means used to remove the tenant were forcible, or both
ii. BERG v. WILEY (Sup Ct Minnesota 1978)
1) Berg rents from Wiley a commercial building that is used as a restaurant
2) Lease requires that tenant must bear the cost of remodeling, must notify the landlord of any changes to the building structure before
they are made, and has to operate the restaurant lawfully
3) Berg's problems - violations of the health code, Wiley asked Berg to make remodeling changes, she waits until the last minute - there is a
conflict about whether she abandoned or was just doing what he asked her to do
4) Wiley comes to the restaurant and changes the locks when Berg isn't there - claiming that she abandoned the property - there is a year
and a half left on the lease at this time
5) Under common law, to establish as a landlord that you have appropriately engaged in self help:
a) Landlord needs to prove they have the right to possession because of tenant breach
b) Landlord needs to prove they used no more force than reasonably necessary - were peaceful
6) Court looks to whether the way Wiley changed the locks was "peaceable"
1) Court said that bringing a cop to the restaurant and changing the locks was not peaceable
a) Assume that the relationship between the parties has deteriorated - this is probably true in any case like this
b) In some ways he is the model of restraint - waits until she is not there/brings a cop just in case
i) There are a number of jurisdictions who have not gone as far as Berg to abolish self-help - but almost always find that
the methods used are not peaceable
7) Courts have essentially abolished the idea of self help
1) There are alternative judicial processes that work just as well - summary proceedings allowed in most jurisdictions
8) Trial court found that even if Berg had violated the lease, this could not excuse Wiley's non-peaceable reentry
9) After this case, the only lawful means to dispossess a tenant who has not abandoned nor voluntarily surrendered but who claims
possession adversely to a landlord's claim of breach of a written lease is by resort to judicial process
iii. A flat prohibition of self help is the trend in property law, but not the rule
1) One reason - homes seem essentially to us - can't deprive someone of a home
iv. Summary proceedings have developed as an alternative to self help
1) Meant to be a quick and efficient means by which to recover possession after termination of a tenancy
2) Typical statute requires only a few days' notice to the tenant prior to bringing an eviction action
v. Also seems logical to permit a tenant to raise the condition of the premises as a defense to a summary eviction action brough t for nonpayment
of rent - many states, though not all, so provide

E. Tenants duties - Defaulting tenant who has abandoned possession

i. SOMMER v. KRIDEL (Sup Ct NJ 1977)

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i. SOMMER v. KRIDEL (Sup Ct NJ 1977)

1) Kridel entered into a two year lease but never took possession of the property - just sent a letter to the landlord explaining the
dissolution of his engagement
2) Sommer never responds to the letter, but refuses to show the apartment on the grounds that it's already been rented
ii. RIVERVIEW REALTY CO v. PEROSIO (1977 - joined with Sommer for decision)
1) Tenant enters into a 2-year lease but vacates after only about a year
2) Court says that landlord must make a reasonable effort to mitigate the damages
3) If this is a property interest, what's the argument that the landlord has no duty to mitigate?
1) Tenant has a property interest in the apartment - a lease-hold - it's not the landlord's to deal with
2) Estate law would favor the alienability of the interest - plays a role in the fact that landlord historically had no duty to mitigate
4) Now, we are moving to contractual conceptions of landlord-tenant law
1) In contracts, have the duty to mitigate even if someone breaches - similarly, the landlord has the duty to try to find a new
tenant/mitigate the damages
5) Economic efficiency argument - doesnt make sense to let property sit idle when there are other willing tenants
6) Fairness argument - seems unfair to Kridel that people are asking to come view the apartment and Sommer is saying it's already been
rented
7) If the case is based in contract law, landlord generally does not have the ability to include a clause waiving the duty to mitigate - can't
override with a contractual provision
8) Burden shifts to the landlord to prove that he has taken reasonable steps to mitigate
1) Prove that you have shown the property to other people
2) May need to advertise in papers, put a sign out
3) If the tenant brings someone to you, and it looks like the person is a reasonable substitute, probably have to take that pers on
4) Duty to mitigate overrides a landlord's ability to withhold consent - landlord pretty much has to take someone - not clear that they
can withhold consent in this case
9) What happens if the landlord has more than one vacant apartment?
1) Landlord has to take steps to rent Kridel's apartment so the landlord isn't gaining at the tenant's expense
10) What happens if the rent goes up when the landlord re-rents?
1) Theoretically, restatement suggests that the tenant should get the extra value because there is a lease
2) One option is that you can actually terminate the lease - if a tenant writes a letter like Kridel did, you can accept this and vacate the
premises
a) In this case, you are protecting yourself if you are in a rising rental market - won't be liable to tenant in any situation if rent
goes up
11) One of the reasons jurisdictions were hesitant to require mitigation was that this was proof that you had accepted the tenant's
abandonment, and therefore tenant was not liable for unpaid rent - not really the case any more
12) Theoretically, landlords can get the difference of what the tenant was supposed to pay, and what they are actually getting byletting it
iii. 42 states and DC now hold that landlords have a duty to mitigate - but not all apply it across the board
iv. If you live in a jurisdiction with no duty to mitigate, and a landlord comes to you with facts similar to kridel, what do you advise the landlord?
1) Based on the current trends, should probably try to re-let - Today, it is risky to follow the old common law
2) Write a letter to tenant saying that mitigation in no way should be seen as accepting tenant's surrender, but try to re-let the apartment
v. For mitigation, need to look at the reasonable norms according to the individual circumstances
1) Might just be able to post ad online, put signs up, etc.

F. Landlord's Duties - Covenant of Quiet Enjoyment

i. Early common law - absent some clause in the lease providing otherwise, the tenant took the premises "as is," and landlords were under no
obligation to warrant their fitness
ii. Disputes between landlord and tenant regarding the condition of the premises arise in essentially two ways
1) The tenant might wish to vacate, or to stay but pay less (or no) rent
2) The tenant (or an invitee of the tenant) might be injured by allegedly defective premises and claim damages against the landlord in tort
iii. Covenant of quiet enjoyment - permitted tenant to terminate the lease and stop paying rent as if they had been evicted
1) Ordinarily implied in the lease
iv. Constructive eviction - landlord has done something that effectively makes it impossible to enjoy the rental of the premises
v. Tenant's right to claim a constructive eviction will be lost if he does not vacate the premises within a reasonable time afte r the right comes into
existence
1) What constitutes a reasonable time depends upon the circumstances of each case
2) Courts must be sympathetic to a tenant's plight - vacation of the premises is a dramatic course and must be taken at his peril
vi. RESTE REALTY CORP v. COOPER (Sup Ct NJ 1969)
1) Plaintiff lessor sued defendant lessee to recover rent allegedly due under a written lease - based on a charge that defendant had
unlawfully abandoned the premises before the termination of the lease
2) Water was leaking into the building - previous lessor immediately fixed the problem whenever it happens and made steps to remedy the
problem long term - after he died, no one responded to defendant's complaints
3) Plaintiff notified lessor of her intention to leave after one particularly bad flood, and subsequently left
4) Landlord claimed water was not a permanent interference, and also that lessee had examined the premises and accepted them as-is
before she signed the lease
5) Court held that the covenant of quiet enjoyment was there whether or not it was explicit in the contract
6) Covenant is much more expansive than the court makes clear
1) Breached when the landlord's conduct had the result of depriving the leasee of the beneficial use of the premises, whether by
positive acts of interference or by withholding something essential to the full enjoyment of the premises, or by explicit pro mise in
the lease
a) If this happened, tenant could vacate the property or stop paying rent
2) Landlord had the duty to expose latent defects
3) Landlord had duty to conduct promised repairs with care
4) Landlord had to maintain common areas and abate nuisances in common areas
vii. Independent covenant - ??
viii. Dependant covenant - mutually dependant on each other - if the covenant is breached you are relieved of obligation to pay rent
ix. If there is an actual eviction, even though from a part of the premises only, the tenant is relieved of all liability for ren t notwithstanding
continued occupation of the balance - the landlord may not apportion his wrong
x. An eviction, actual or constructive, is not necessary to constitute a breach of the covenant - the tenant should be, and usually is, able to stay in
possession and sue for damages equal to the difference between the value of the property with and without the breach

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x.
possession and sue for damages equal to the difference between the value of the property with and without the breach
xi. Illegal Lease Doctrine
1) DC court of appeals is fairly active in this judicial movement
2) Argument is that the lease that has been entered into is illegal and tenant shouldn't have to pay rent
3) Held to apply to substantial housing code violations, which have to be in effect at the time the lease is entered into
1) Landlord has to know about the violations
2) Landlord is entitled to reasonable rent
4) Tenant can withhold rent, and can also vacate and not be held liable for future rent
5) Abandoning an apartment is often not a very favorable option for many tenants

G. Landlord's Duties - Implied Warranty of Habitablity

i. What is an implied warranty of habitability?
1) Tenant is entitled to housing that is safe, clean, and fit for habitability - whether or not it is expressly set out in the contract
2) Can't waive the warranty
3) Covers latent and patent defects, and common areas
ii. What if tenant knows of defect and accepts property anyway?
1) Knowledge doesn't waive the warranty - can't bargain away your right to habitable premises
2) Few jurisdictions will say that if there is evidence of equal bargaining power than maybe - otherwise no
iii. What constitutes a breach of the warranty? What's covered?
1) Substantial breach
1) Starting point is the housing code - most municipalities have housing codes - just a starting place, not the ending place
2) If there is no housing code (or no violation of the housing code), the court will still look to the safety of the dwelling
3) Breach occurs when the premises are uninhabitable in the eyes of a reasonable person
2) Basic question - Is there a substantial violation of the warranty such that a tenant's health or safety might be in jeopardy?
iv. What if tenant causes the defect?
1) No breach
2) Landlord is not responsible for defects created by tenant
v. Standard, not a rule - a lot more flexibility as to whether the landlord is violating the warranty
1) Court wants to focus on the health and safety of the tenant, and therefore makes the standard more flexible
2) Minor housing code violations will not necessarily lead to a breach of the implied warranty
vi. Before filing a claim, tenant first has to tell the landlord that there is a problem, and only if landlord fails to correct i s there a breach
vii. Why does it make sense to imply a warranty of habitability instead of requiring a tenant to take the apartment as -is?
1) Ability-based - makes sense to shift burden to landlord to maintain the premises
1) Tenants aren't as likely to be able to repair on their own
2) Land doesn't matter so much any more - it's the building on the land that matters - tenants want an inhabitable apartment
viii. Remedies
1) Contract damages are available
1) Can rescind contract
2) Can reform contract - for example, to include different rent
2) How do you measure damages?
1) Measure damages by what the fair market value is, compared to what the value of the actual premises are ( Hilder)
2) Other jurisdictions - difference between the agreed rent and the fair rental value of the premises as they were during their
occupancy in the unsafe, unsanitary, or unfit condition
3) Or - agreed rent is reduced by a percentage equal to the percentage of lease -value lost by the tenant in consequence of the
landlord's breach
3) Damages are really hard to measure where tenant isn't paying much for the property
1) In some situations damages might be 0, but courts can't do this without voiding IWoH
4) Other remedies
1) Might sue the landlord, move out, and try to get relocation costs from the landlord
a) Run the risk of losing - being on the hook for rent even if you've moved out
2) Withhold rent, then have the landlord sue you
a) In many instances, this is done affirmatively
i) In some jurisdictions might be required to put withheld rent in an escrow account
b) In most cases, tenants withhold rent, are sued for eviction, get legal help, and find out they have a claim for IWoH
i) Even if they have been delinquent on rent for other reasons
ii) Landlords hate this - think that this is simply a subterfuge to avoid eviction for non -payment of rent
iii) Landlords succeed most of the time anyway - judges will often throw out this defense even if the tenant has good
evidence (anecdotal)
iv) Must more likely to be successful if used as an affirmative defense, rather than a last minute stop -gap defense for
tenants who have otherwise had problems paying rent
v) IWoH is more likely to be successful in really serious slum-like conditions
ix. HILDER v. ST. PETER (Sup. Ct. VT 1984)
1) Hilder is basically renting a slum apartment and repeatedly complains to the landlord but he does nothing
2) Landlord argues that she has not abandoned the apartment and therefore should not get her rent back
1) He's suggesting there has been a breach of the covenant of quiet enjoyment, which under some circumstances required the tenan t
to vacate
3) Hilder is arguing that Vermont should follow other states in adopting an implied warranty of habitability
1) Under common law doctrine, landlord was not required to make any promises to tenant - caveat leasee
2) Grounded in property rights as opposed to contract rights
4) For remedies - court says it is the value of the dwelling as warranted v. value of the dwelling in its defective condition
5) Defendant's argument - Hilder rented as-is - she knew it was a dump - if it had been in good condition, she would have had to pay a lot
more, therefore no damages are appropriate
1) This argument would essentially eviscerate the implied warranty of habitability doctrine.
a) Have to measure damages in some other way than saying that she was paying the decreased rent because the place was a
dump to avoid voiding the whole doctrine
b) To give some teeth to the IWoH - have to allow some damages
2) Plaintiff would argue that this isn't an appropriate measure of damages - by entering into a contract with plaintiff, landlord is

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2) Plaintiff would argue that this isn't an appropriate measure of damages - by entering into a contract with plaintiff, landlord is
promising a habitable apartment, and isn't living up to the promise
6) Hilder gets all her rent back - court essentially says that the apartment was valueless
7) Court also says that punitive damages may be available to a tenant in the appropriate case where the breach is of such a willful and
wanton or fraudulent nature as to make appropriate the award of exemplary damages
x. Theory of IWoH is largely grounded on the fact that the landlord/tenant do not have equal bargaining power, and tenants are n ot as capable of
making repairs
1) We don't make these same assumptions in the commercial context - we assume that there is equal bargaining power
xi. Putting aside IWoH, how can we ensure that a tenant has decent housing without shifting all the costs onto the landlord?
1) Set aside certain units in a building for low-income tenants, and allow market prices for the rest of the building - shift costs to those who
can afford it
2) Section 8 housing vouchers - government is paying the rent - give tenants enough money to buy housing that is affordable
3) Government might need to subsidize housing in markets where there is an inadequate amount of affordable housing

H. Tenant's duties
i. Waste - duty not to commit waste is breached if a tenant makes such a change as to affect a vital and substantial portion of the prem ises; as
would change its characteristic appearance; the fundamental purpose of the erection; or the uses contemplated, or a change of such a nature,
as would affect the very realty itself, extraordinary in scope and effect, or unusual in expenditure
1) Not every alteration made by a tenant amounts to waste
ii. Tenant has an implied warranty at common law to make minor repairs, a duty which arose out of waste - doesn't make sense today
iii. Commercial tenant's duty to repair may be altered by a covenant in the lease
1) Depends considerably on the language of the agreement in question
2) Explicit covenants to repair regularly except, in addition to fair wear and tear, damage by fire or other casualty - even with regard to fire
damage brought on by tenant's negligence
iv. Does the tenant have a duty to pay rent after the leased premises have been destroyed?
1) Under common law - usually yes, unless the lease provided otherwise - on the theory that the interest in the soil remains to support the
lease
2) If the lease only covers a part of the building, an exception is made to the general rule
3) Greenfield - contract theory of frustration of purpose - when the building is destroyed it becomes impossible for the landlord to furnish
the agreed consideration - obvious that the purpose of the lease with respect to the tenant was frustrated

X. DISCRIMINATION
A. Fair Housing Act
pp.
i.
ii.
iii.

iv.

v.

vi.

vii.

viii.

ix.

376-378
Covers more than just race
Covers advertising for housing
Does not cover single family houses, unless the owner owns more than three such houses
1) Not exempt from advertising provisions
2) Only exempt if the house is sold or rented without the use in any manner of sale or rental facilities or sales or rental services of any real
estate broker, agent, or salesman, and without the publication, posting or mailing, after notice, of any advertisement or written notice in
violation of section 3604(c)
3604(a) - prohibits discrimination on the basis of race, color, religion, sex, familial status, or national origin for
1) Sale or rental
2) Inclusion of discriminatory terms, conditions, or privileges of sale
3) Printing, publishing of an advertisement/statement/notice that indicates any preference for the above categories plus handicap
4) Representing to any person because of the above categories that a dwelling is not available
3604(f)(3)(A) - refusal to permit, at the expense of the handicapped person, reasonable modifications of existing premises occupied or to be
occupied by such person if such modifications may be necessary to afford such person full enjoyment of the premises, except t hat, in the case
of a rental, the landlord may where it is reasonable to do so condition permission for a modification on the renter agreeing to restore the
interior of the premises to the condition that existed before the modification
Anyone injured by a discriminatory practice may commence a civil suit for injunctive relief and damages (including punitive d amages)
1) Other enforcement measures include conference and conciliation proceedings, suits by the US attorney general, and criminal penalties
Pursuing a claim under the FHA
1) Discriminatory motive need not be proved in order to make out a prima facie case under the FHA - proof of discriminatory effect is
sufficient
2) Claimants in Title VIII actions need merely demonstrate that an action or practice carries a discriminatory or segregative impact in order
to shift the burden to the defendant
3) Alternatively, when a single plaintiff claims a housing denial without regard to a policy or pattern, the plaintiff establishes a prima facie
case by proof of disparate treatment
4) Once the plaintiff establishes either disparate impact or disparate treatment, the defendant must the justify the action as one taken in
pursuit of a bona fide, compelling governmental purpose, with no less discriminatory alternative available to achieve the goal
1) Or, in the case of private defendants, one taken pursuant to a rational and necessary business purpose
5) Should a defendant demonstrate a valid justification, the burden, at least in the private sector, would shift back to the plaintiff to show
that the business necessity was a pretext for engaging in discrimination
Discrimination based on family status/sex
1) Numerical occupancy limitations are generally ok, even if they have a disparate impact on families with children, because they could be
justified on the group of maintaining the economic value of the property
1) However, can't discriminate against children when the occupancy limitations would otherwise allow them
2) Refusal to rent to unmarried couples not covered by the act unless it can be demonstrated to have a disproportionate racial, ethnic,
religious, or gender-based impact
3) Act does not prohibit sexual-preference discrimination
Handicaps
1) Defined by 3602(h) of the FHA as "a physical or mental impairment which substantially limits one or more of the person's major life
activities, a record of having such an impairment, or being regarded as having such an impairment, but such term does not include

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current, illegal use of or addiction to a controlled substance"

2) People with AIDS have a handicap for purposes of the act
3) Dwellings need not be made available to people whose condition would create a direct threat to the health and safety of others or result
in substantial damage to the property, but landlords must try to make reasonable accommodations
4) No pets policy prevails only if there were no reasonable way to accommodate the type of pet or if the tenant did not actuallyneed the
pet
x. Attorney's fees
1) FHS provides for the award of reasonable attorneys' fees to successful aggrieved parties from losing landlords
2) Award of fees to defendants who prevail is permitted only if the complaint is frivolous or in bad faith
xi. US v. STARRETT CITY (1982)
1) Housing developer in Brooklyn is concerned about white flight, so wants to enact racial quotas to maintain the current racial balance
2) Wants to avoid the "tipping point - " theory is that there is some point at which if you reach a certain percentage of minorities in an
apartment building, you will create while flight
3) This is intentional discrimination - not just actions that result in discriminatory effects - they are purposely discriminating on the basis of
race because of what they think is a good policy
4) Starrett City's argument is that the discrimination was for a legitimate end - trying to accomplish housing integration, which was the
purpose of the Fair Housing Act)
1) Only problem is, the plain language of the FHA doesn't seem to allow for this kind of discrimination
5) The court holds that Title VIII does not allow appellants to use rigid racial quotas of indefinite duration to maintain a fixed level of
integration at Starrett City by restricting minority access to scarce and desirable rental accommodations otherwise availableto them
1) The impact of Starrett City's quotas fall squarely on minorities

B. 14th Amendment
i. If there is public housing involved, the equal protection clause protects from discrimination (state action)
ii. Prohibits only state action, but Shelley effectively eliminated at least some private discrimination as well
iii. SHELLEY v. KRAEMER (US Sup Ct 1948)
1) Court held that state courts could not enforce racially restrictive land use agreements

C. Civil Rights Act of 1866

i. All citizens of the US shall have the same right, in every State and Territory, as is enjoyed by white citizens thereof to in herit, purchase, sell,
hold, and convey real and personal property
ii. JONES v. ALFRED H MAYER (US Sup Ct 1968)
1) Court held that the 1866 provision bars all racial discrimination, private and public, in the sale or rental of property
iii. 1866 law is narrower than the FHA in that it reaches only racial discrimination, does not deal with discrimination in the pro vision of services
and facilities, and does not prohibit discriminatory advertising - it is broader, however, in that it contains none of the exemptions found in the
FHA
iv. In contrast to the FHA, claims under the CRA probably do not require proof of intentional or purposeful discrimination

XI. REAL ESTATE

A. Outline
i. Lacardi v. Blackwelder
1) Brokers have a fiduciary duty to the parties they represent
ii. Lohmeyer
1) What constitutes marketable title when there is still a sale pending
2) Existence of a covenant where there is not an exception in the contract allows a buyer to rescind, as does a violation of a covenant
3) Mere existence of a zoning ordinance does not constitute an encumbrance - does not effect whether the title is marketable
4) Violation of a zoning ordinance does allow the purchaser to back out of the contract because the title is not marketable
iii. Does the seller have a duty to disclose defects?
1) Minority rule - no - embodied by state of NY - Stambovsky - exception for poltergeist
2) Majority rule in the other direction
1) Latent material defects must be exposed - Johnson v. Davis
iv. Can a subsequent purchaser enforce an implied warranty of quality against a contractor who is in privity with the seller but not the subsequent
purchaser?
1) Lempke
v. What damages or remedies flow from the breach of a sales contract?
1) Jones v. Lee - measures damages by the difference between the price at the time of purchase and the market value at the time of breach
+ additional compensatory costs (mortgage payments, etc.)
1) Jones also has punitive damages - not typical
2) Kutzin - can you keep the deposit if the buyer breaches?
1) General/majority rule - yes, even if the deposit exceeds the damages of the seller
2) This court says no - if the deposit is going to unjustly enrich the seller
3) Specific performance - require the seller or buyer to go through with the sale

B. Real estate transactions

i. In CA, typical to have no lawyers involved and use standardized forms
ii. Both buyer and seller are typically represented by a broker
iii. Real estate contracts are almost always executory - the title is not transferred immediately upon signing the agreement, because both buyers
and seller must do certain things during ht time between the contract and closing
1) Typically contingent upon the buyer obtaining financing and an inspection by the buyer
iv. Once the contract is actually signed, there is a title search by the title company - looking for defects in title
1) Title company will insure the title
v. Deed transfer/closing
1) CA - is covered by a 3rd party escrow agent
2) In many states (NY) - transfer of the deed takes place with all parties physically present
vi. Title company records the deed and the mortgage - there is a recording system
1) Every piece of property has a record that the county records office maintains of every transaction on that property
2) Lexis - can search by property and see all the transactions that have occurred

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1) Every piece of property has a record that the county records office maintains of every transaction on that property
2) Lexis - can search by property and see all the transactions that have occurred
vii. Deed - recorded - you hold the deed, usually subject to the mortgage
viii. Title - simply tells you who owns the title, and whether there are encumbrances - want a clear title when you own a house
1) For practical purposes, not a huge difference between deeds and titles
ix. Real estate contract - pp. 454-462

C. Brokers
i. Brokers exist because there is a scarcity of information in the market for real property
1) Buyers and sellers tend not to enter into these transactions often and because the value of each transaction is so high, it makes economic
sense to have specialists develop information
ii. Often hired by sellers of property to attract prospective buyers and facilitate real estate transactions
iii. Residential brokers are licensed by the state and typically receive a commission, usually ranging from 6 to 8 percent
iv. LICARI v. BLACKWELDER (App Ct CT 1988)
1) Children are trying to sell their parents' house - 3 brokers involved
1) Licaris hired Schwartz, Schwartz consulted with defendants Blackwelder and Opert
2) Broker Blackwelder bought the house themselves for $115k, then sold to a 2nd buyer - 2nd buyer pays $160k for the house
3) Court says that the broker has a fiduciary duty toward their client - to operate in the best interest of the person they are representing
1) Prohibits broker from misrepresenting facts, withholding facts, etc.
2) Broker must exercise fidelity and good faith, and cannot put himself in a position antagonistic to his principal's interest
3) Failure to do so renders the broker liable to the principal for whatever loss the latter may suffer as a consequence thereof and
precludes recovery of a commission for his services
v. Listing brokers - contract with the seller to sell the property
1) By entering into a listing contract with the listing broker, the seller empowers the broker to serve as the seller's agent inselling the
property
vi. Selling brokers - introduce the buyer to the seller's property
1) Have a more indirect relationship with the seller, and receive their commission by splitting the listing broker's commission
2) Commonly a prospective buyer initiates the relationship with a selling broker, who then introduces the buyer to sellers and listing
brokers
3) Selling brokers often work with prospective buyers over long periods of time and develop personal relationships with them - 3/4 of
buyers believed tat the selling broker they had been working with was representing them and not the seller
vii. In traditional brokerage relationships, a listing broker's sole duties owe to the seller, and so too for a selling broker, wh ose legal relationship is
that of a subagent
1) While brokers have to deal fairly with both buyers and sellers, they must work entirely on behalf of their principals (in this case sellers)
2) Selling brokers even have the duty to report to the seller any information that the buyer shares with the selling broker
viii. Buyer's brokers - a relatively recent but increasingly common practice in residential real estate transactions is for prospective buyers to hir e
their own agents to help conduct their search for real estate
1) Owe fiduciary duties to prospective purchasers
2) Typically share the commission earned by the listing agent when the property is purchased - however, since buyers' brokers are not in
privity with the listing broker or the seller, listing agents are not compelled to share their commissions with buyer's brokers
ix. Recent GA law eliminated automatic subagency and required agents to disclose to prospective purchasers the full scope of dive rse agency
relationships available to them - including buyer's agency
1) Economic theory would predict that the shift from seller's agency to buyer's agency would enhance buyer's bargaining power and
possibly improve efficiency because buyers would reveal more information to their brokers than would otherwise be the case
2) Evidence showed that after passage of the law, prices generally fell, as did the average time needed to sell a house
x. Dual agents
1) Brokers' duties become complicated if both the buyer and seller in a transaction hire the same person - a broker in this situation is
referred to as a dual agent and owes both the buyer and the seller the same duty of loyalty and good faith
1) Broker can not be exclusively loyal to any one party
2) Many states permit dual agency as long as the dual agent reveals her dual agency to both parties
xi. Disclosure requirements
1) Law in some states requires brokers to disclose to buyers, in writing, that they are the seller's agent and not the buyer's
2) In many states, brokers must also disclose to the buyer any material defects known by the broker and unknown to the buyer
xii. When a commission is due
1) Traditional rule is that a broker earns a commission upon bringing to the seller a buyer who is ready, willing, and able
1) Someone who expresses a desire to buy the property by making an offer for the specified asking price and has sufficient asset s to
proceed with the successful purchase of the property
2) Broker is entitled to earn a commission even if the sale fails to close
3) Owner can circumvent the dangers of the traditional rule through contract
4) Custom in the industry is that brokers are not actually paid their commissions until closing - most brokers decline to pursue a commission
when the transaction fails to close

D. Types of listings
i. Listing agreement is an employment contract between a real estate broker and a seller - usually in writing
ii. If the broker satisfies the obligations set forth, the seller pays the broker a commission
iii. Open listing
1) Least protective listing that a broker can secure
2) Seller retains the right to sell the property herself or use a different broker without paying the open listing broker a commission
iv. Exclusive-agency listing
1) Permits only one broker, the exclusive agent, to sell the property for a specified period of time
2) Exclusive agent earns a commission for the sale of the property if she secures a buyer, or even if a separate broker secures a buyer
3) Brokers do not have to compete with other brokers during the period of the exclusive listing, and owners can avoid paying theexclusive
agent a commission if the owner directly sells the property herself
v. Exclusive-right-to-sell listing
1) The most protective listing a broker can secure
2) Owner must pay that broker if any buyer purchases the property during the specified duration of the listing, no matter who found the
purchaser
3) Vast majority of listing agreements for residential properties

E. Marketable title

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E. Marketable title
i. Implied condition of a contract of sale is that the seller must convey to the buyer a marketable title
ii. If the seller cannot convey a marketable title, the buyer is entitled to rescind the contract
iii. Marketable title - a title not subject to such reasonable doubt as would create a just apprehension of its validity in the mind of a reasonable,
prudent and intelligent person, one of which such persons, guided by competent legal advice, would be willing to take and for which they
would be willing to pay fair value
iv. LOHMEYER v. BOWER (Sup Ct Kansas 1951)
1) Plaintiff enters into a contract to buy a house and discovers problems:
1) Only 2-story house allowed on lot - restrictive covenant
2) House must be more than three feet away from the property boundary - zoning ordinance
2) If the property is subject to restrictive covenant, even if property meets that covenant, is the title marketable?
1) Covenant is considered to be an encumbrance, and unless there is contractual language that the buyer accepts the property w/
encumbrances - renders the title to the land unmerchantable (p. 481)
2) Title is unmarketable if it exposes the party holding it to the hazard of litigation
3) If property is subject to zoning ordinance, even if property meets requirements, is the title marketable?
1) If the property meets the ordinances title is still marketable
4) Even if the defendant changed the house to comply with the ordinances - any changes in the house would compel the purchaser to take
something that he did not contract to buy
5) Need language in the contract to say the buyer takes it subject to restrictions/covenants/etc.
1) Still no good marketable title when a covenant is violated
6) Trying to avoid buyers getting themselves into a situation where they are buying something and could put themselves into a situation
where they could be sued
1) Plaintiff here didn't realize he was taking on some risk while he was getting into the contract
7) We allow a buyer to get out if there's a covenant on the property, but don't allow them to get out in the case of a zoning ordinance
1) Easier for a buyer to figure out what the zoning ordinances are
2) Seller ought to know what restricts his own property with regard to covenants - but with zoning ordinances, seller and buyer have
access to the same knowledge
v. Does title insurance = marketable title?
1) Court might say that it's good enough
2) In 90% of circumstances, yes, but conceivable that you might get yourself into a situation where the next transaction falls apart
vi. Title is generally marketable if the seller has a fee simple, the title is free from any encumbrances, and the buyer is entit led to possession

F. Equitable conversion
i. Both purchasers and sellers of real property are normally entitled to specific performance as a remedy for the other's breach of contract
ii. Doctrine of equitable conversion - if there is a specifically enforceable contract for the sale of land, equity regards as done that which ought to
be done
1) The buyer is viewed in equity as the owner from the date of the contract
2) Seller has a claim for money secured by a vendor's lien on the land - seller is also said to hold the legal title as trustee for buyer
iii. Risk of loss
1) Some states hold that from the time of the contract of sale of real estate the burden of fortuitous loss is on the purchaser,even though
the seller retains possession - supposedly based on equitable conversion
2) Some courts have declined to apply equitable conversion and have held that the loss is on the seller until legal title is conveyed
3) Other states put the risk of loss on the party in possession
4) If the purchaser has the risk of loss, and the seller has insurance, in most states the seller holds the insurance proceeds as a trustee for
the buyer

G. Duty to disclose defects

i. STAMBOVSKY v. ACKLEY (NY Sup Ct 1991)
1) Plaintiff discovers that he had entered into a contract to purchase a house that was known to be haunted
1) Concern that people might be attracted to this house, might come and take pictures, come by the house at all hours, etc.
2) Has already inspected the house and contracted to purchase
2) Background law of NY for seller to disclose defects
1) "mere nondisclosure does not constitute actionable misrepresentation"
2) Caveat emptor - minority rule - take the property as-is in the absence of any affirmative misrepresentation by the seller
3) Court establishes an exception where there is really no way a buyer could discover a defect
1) Defects that are undiscoverable during the inspection process are beyond the realm of NY's caveat emptor law
2) As-is clause only applies to defects that are reasonably discoverable and where fraud exists
3) Distinguishing on the facts - as-is clause applies only to physical defects
ii. JOHNSON v. DAVIS (Sup Ct Florida 1985)
1) Johnsons knew the roof leaked, but did not disclose to Davis' - Davis' want to get out of the contract
1) Even in NY, Davis' could get out of the contract - affirmative misrepresentation
2) New standard here is that when a seller knows of facts that materially effect the value of the property that are not readily observable they are under a duty to disclose to the buyer
1) What constitutes knowledge of a condition?
2) What constitutes disclosure? Probably want to put it in writing
3) What constitutes something that materially effects the value of the property?
4) What does it mean to be "readily observable?"
a) For example - underground plumbing? Readily observable to buyer, or buyer's inspector, etc.?
3) Lots of litigation over these questions - CA in particular has lots of litigation over these questions
iii. In most states statutes have been enacted requiring the seller to deliver to prospective buyers a written statement disclosin g facts about the
property
iv. In each jurisdiction requiring disclosure, the defect must be material to be actionable. One of two tests are applied
1) An objective test of whether a reasonable person would attach importance to it in deciding to buy
2) A subjective test of whether the defect affects the value or desirability of the property to the buyer
v. In CA sellers must disclose, among other things, neighborhood noise problems
vi. Duty to disclose statutes have partially been promoted by brokers, who were being held liable for nondisclosures
vii. Generally, an as-is clause will be upheld if the defects are reasonably discoverable and there is no fraud

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vii. Generally, an as-is clause will be upheld if the defects are reasonably discoverable and there is no fraud

H. Implied warranty of quality

i. Suits on the warranty can arise only after the closing has taken place and the plaintiff has accepted the deed
ii. LEMPKE v. DAGENAIS (Sup Ct NH 1988)
1) Issue - whether a subsequent purchaser of real property may sue the builder/contractor on the theory of implied warranty of
workmanlike quality for latent defects which cause economic loss, absent privity of contract
2) Court holds that privity of contract is not necessary for a subsequent purchaser to sue a builder/contractor under an impliedwarranty
theory for latent defects which manifest themselves within a reasonable time after the purchase and cause econ harm
3) Reasoning
1) Latent defects in a house will not manifest themselves for a considerable period of time
2) We are an increasingly mobile people - a house might be resold after building within a short period of time
3) Ordinary buyer is not in a position to discover hidden defects
4) Builder/contractor will not be unduly burdened - they should be producing a quality product anyway
5) Mitigation of risk - builder-vendor is better positioned to guard against risk
4) Court also says that economic recovery is allowed in implied warranty for subsequent purchasers
5) Reasonable period of time should be controlled by standard of reasonableness and not an arbitrary time limit
6) Plaintiff must show that the defect was caused by the defendant's workmanship
1) Must have performed in a workmanlike manner and in accordance with accepted standards - customary standard of skill and care
iii. Warranty of quality is not normally applied where the seller is not a merchant of housing
1) Suits against a person who sells his home to another ordinarily must be based on fraud, misrepresentation, or failure to disclose

I. Breach of the sales contract

i. In the event that the contract for sale is breached, three remedies are available to the non -defaulting party
1) Damages
2) Retention of the deposit (sellers) or restitution of the deposit (buyers)
3) Specific performance of the contract
ii. Generally the winner may elect which remedy he or she prefers
iii. JONES v. LEE (Ct App NM 1998)
1) Lees are the buyers - they enter into a contract to buy the Jones' house for $610k - give the Jones a $6k deposit
2) Buyers subsequently tell the Jones' that they don't want to buy the house due to financial reasons - willing to give the Jones' the deposit
3) Court awards the sellers $70k in damages - measure of damages is the difference between the market prices and the sales price when the
breach occurs
1) Typically going to be close to $0 - market value probably doesn't change very much in the relatively short period of time between
the contract and the buyer backing out
2) This benefits buyers - makes it pretty easy to back out of the contract
4) Why do the buyers lie about the reason? Probably don't know the rule - they actually had a pretty good case for small damage - instead,
buyers get stuck with punitive damages because they behaved badly
5) Sellers want the measure of damages to be the market value at the time they could resell ($70k)
6) Problem with NM rule is that it somewhat turns into a game of "he said, she said"
1) Lawyer for the sellers stipulated that the market value at the time of the breach was $610k - probably a stupid thing to do
iv. KUTZIN v. PIRNIE (Sup Ct NJ 1991)
1) Pirnie's contract to buy the Kutzin's house for $365k, and pay a $36k deposit
1) Line in the contract says that "if this contract is voided by either party, the escrow monies shall be disbursed pursuant to the
written direction of both parties"
2) Kutzins actually sell their house for $352,500 - damages are actually $17,325, but Kutzins want to keep the entire deposit
3) Court decides that Kutzins cannot keep entire deposit - NJ approach is the minority approach
1) Otherwise, they would be unjustly enriched
2) Efficiency of breach - costs less to breach the contract than it would to go through with it
3) Court here is saying that we don't want to discourage people from getting out of a deal that doesn't work for them - it's inefficient
for them to have to pay more in damages than they should
4) Most jurisdictions will allow for forfeiture of a deposit - mostly 10%, but sometimes larger
1) If the rule is that you can keep any 10% deposit - much less litigation
v. Specific performance
1) Judicial order that a breached contract be fulfilled as originally agreed - very common in the case of contract for the sale of land
2) Behind the rule - each piece of real estate is unique, making damages an inadequate remedy
3) Some courts have ruled the specific performance isn't a matter of absolute right but rather in discretion of the trial court - parties who
want specific performance have to prove that money damages would be an inadequate remedy
4) In the vast majority of cases, it is the seller who is seeking specific performance

J. The Deed
i. Special warranty deed - warrants only against the grantor's own acts, not the acts of others
1) Problems in cases of adverse possession - can the purchaser sue the seller for breach of the deed if they had been adversely possessed
against - is it within the acts of the grantor, or acts of others?
1) Courts have generally held that grantor is still liable
ii. General warranty deed - warrants title against all defects in title, whether they arose before or after the grantor took title
iii. Quitclaim deed - contains no warranty of any kind - merely conveys whatever title the grantor has
iv. Forged deed - someone else signs the signature of the seller
1) Seller is not liable
v. Fraud - when the seller has actually been duped in some way
1) Deed procured by fraud is voidable between the grantor and the grantee - any subsequent purchaser is protected as long as they didn't
know about the fraud
vi. Present covenants - breached at the time the deed is conveyed
1) Covenant of seisin - granter warrants that he owns the estate that he purports to convey
1) Measure of damages for breach - return of all or a portion of the purchase price
2) Covenant of right to convey - basically the same thing - but you might have title and not be able to convey it
3) Covenant against encumbrances - warrant that no encumbrances exist, except those actually listed in the deed, encompassed in the title
of record
1) Make sure that buyer takes property subject to encumbrances

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1) Make sure that buyer takes property subject to encumbrances

2) Measure of damages for breach:
a) If the encumbrance is easily removable, the measure of damages is the cost of removal
b) If the encumbrance is not easily removable, the measure of damages is the difference in value between the land with the
encumbrance and without the encumbrance
c) In all cases damages are limited by the total price received by the warrantor
vii. Future covenants - breached at some future time
1) Covenant of general warranty - grantor warrants that he will defend against lawful claims and will compensate the grantee for any loss
that the grantee may sustain by assertion of superior title
2) Covenant of quiet enjoyment- similar to above
3) Covenant of future assurances - grantor promises to execute any other documents required to perfect the title
viii. FRIMBERGER v. ANZELLOTTI (Sup Ct CT 1991)
1) Defendant's brother subdivides the land and later transfers it to his sister (defendant) by a quitclaim deed
2) Sister transfers by general warranty deed to plaintiff
3) Property is located right next to a marshland - defendant built a bulkhead - protection to keep the water out
1) Problem with the property is that part of the house is on filled land in violation of the CT law
4) CT informs the plaintiff of the violation - tell the plaintiff that she could have filed an application with the DEP
1) Instead, plaintiff chooses to sue, saying that defendant breached warranty against encumbrances
2) Seems like the application might have led to the court saying the encroachment was ok, or making minor modifications
5) Does a latent violation of a land use statute that existed at the time of the conveyance constitute an encumbrance?
6) Generally speaking, finding a zoning violation before the signing of the contract still gives you the ability to back out
7) Court says that the problem of zoning violations can be handed quite easily by including protective language in the contract and insisting
on appropriate provisions in the deed - we don't really want to keep a seller on the hook long after they sell
ix. BIANCHI v. LORENZ (Vt 1997 - notes after Frimberger)
1) Contractor never obtained a certificate of lawful completion nor a certificate of occupancy - sellers relied upon the contractor and later
sold the property - court comes out in the opposite way
2) If you see a circumstance with something that requires a certificate of completion or something along those lines that would be present
in the title - you can hold the seller liable
3) Any substantial violation of municipal ordinances is an encumbrance in violation of the deed covenants if the seller - either a builder or a
subsequent owner - can determine from the municipal records that the property violates local zoning or building regulations

K. The Mortgage
i. Mortgagors - party taking out the loan
ii. Mortgagees - the lender
iii. Equitable rules have developed over time to protect homeowners
1) During great depression - government stepped in to pass anti-deficiency statutes - if you're foreclosed upon, and the bank sells the
property and the sales price is less than what you owe on the mortgage - prevents the bank from coming after you personally for the
difference
1) What happens is that property owners can walk away from their mortgages because they aren't liable for the difference
iv. Deed of trust - recognized in a majority of jurisdictions - borrower conveys title to the land to a person (usually a third person but may be the
lender) to hold in trust to secure payment of the debt to the lender. In a deed of trust, the trustee is given the power to sell the land without
going to court if the borrower defaults
1) This method of foreclosure is quicker and less costly than judicial foreclosure
v. A second mortgage is subject to the prior rights of the first mortgage - if the sum brought upon foreclosure sale is insufficient to pay off both
the first and second mortgages, the first mortgage is paid off first
vi. Foreclosure
1) If the foreclosure is through a judicial proceeding, the sale price is ordinarily not challengeable unless it shocks the conscience of the
court
2) When the foreclosure is a private sale, courts may scrutinize the sale more closely to assure that the mortgagee acted fairly, and may
deny a deficiency judgment when there are sufficient grounds to set the sale aside
vii. MURPHY v. FIN. DEV. CORP. (Sup Ct NH 1985)
1) Couple bought house in 1966, refinanced in 1980 - then husband loses job, Murphys fall 7 months behind on mortgage
2) Murphys pay the 7 months they are in arrears, but the bank moves into foreclosure because they haven't paid costs
3) Lender ends up buying the property from $27k, which is just enough to recover the fees - Same day as the foreclosure sale, William Dube
buys the property for $38k
1) Murphys sue , claiming that bank didn't exercise good faith and due diligence in obtaining a fair price for the property
a) If they had gotten more than the $27k, the Murphys would have been able to recover the difference
4) Court said that there was no due diligence here
1) Issue is whether a reasonable man in the lender's place would have adjourned the sale
2) Need to use ordinary methods to make buyers aware as if you were an owner selling land
a) Whatever is customary for the locality and local market conditions
b) Not enough to simply put a legal notice in the newspaper
3) Seems like the court doesn't like that the Murphys are losing so much money
viii. Difference between fair price and fair market value
1) Fair price - dependant on a process that's going to ensure a decent price
1) Maybe need to show that they will set an "upset" price for at least part of the Murphy's investment
2) Might not hold to the standard that a real estate broker would be held to in order to get the highest price possible
2) Fair price and a fair market price is different
3) What do you need to do as a lender to establish a fair price?
1) Bank would probably have to pay for appraisal - probably have to know what the market would pay
2) Set a reserve price - maybe a discount off the fair market value but still not far
3) Fair price - probably less than fair market value, but enough to cover costs

L. Installment land sale contract/contract for deed

i. An arrangement whereby the purchaser takes possession and the seller contract to convey title to the purchaser when the purch aser has paid
the purchase price in regular installments over a fixed period of time
ii. Little functional difference from a mortgage - but the installment land sale contract, which provides financing by the seller, not by an
institutional lender, is widely used in transfers of real estate, particularly low -cost housing and vacation lots
iii. Includes a clause providing that the buyer forfeits the land and the payments if the buyer goes into default - sellers hope to avoid expensive

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iii. Includes a clause providing that the buyer forfeits the land and the payments if the buyer goes into default - sellers hope to avoid expensive
and time-consuming judicial foreclosure
iv. BEAN v. WALKER (NY Sup Ct 1983)
1) Borrowers have paid about 1/2 of the principal amount, when the principal breadwinner is injured the seller wants to keep all the money
and the property
2) Question is whether this is more like a mortgage or just a regular contract
3) Court says that they are going to think about this differently - contract says that the seller retains legal title, but the court doesn't like
that
1) Borrower has equitable title even if the contract says that the seller has legal title
2) Consequence - borrower has equitable ownership interest that needs to be extinguished before the sellers can take possession of
the property
a) In the case of the regular mortgage, would have to extinguish the title through foreclosure
b) Same in this case - have to have proper proceedings - borrower is entitled to get things like equity back
4) Why not treat this case as contract law?
1) For many Americans, home is the largest thing they own
2) Provides someone's shelter - want to be careful in allowing someone to kick them out of their home and take all their money at the
same time
5) Courts generally don't like to see forfeiture of property

XII. TITLE
A. In general
i. Before buying, a purchaser should search (or have a professional search) the public records office to discover the evidence o f title recorded in
that office
ii. From the evidence of title in the records office, a professional will conclude who has the fee simple title to land, which ma y be encumbered
with a mortgage or servitude - relying on the professional's opinion of title, party decides whether to purchase land
iii. In a few localities, title registration is available - the state registers title and issues a title certificate to the owner, which is reissued to each new
purchaser of the property
iv. At common law, if someone conveyed a deed (O to A, subsequently to B) - A would prevail, B could only recover for fraud
v. Recording statutes changed the common law priority - designed to put people on notice
1) Various states change priority depending on what approach they take
2) Notice jurisdiction - subsequent purchaser prevails only if B had no notice of the conveyance to A
3) Raised notice jurisdiction (CA) - protects bona fide purchaser only if she had no notice and records first

B. The recording system

i.
ii.
iii.
iv.

In every American state, statutes provide for land title records to be maintained y the county recorder in each county
Recording acts do not affect the validity of a deed - a deed is good and valid without recordation
Under the recording acts, a subsequent bona fide purchaser is protected against prior unrecorded interest
Documents that get recorded - deeds, mortgages, sometimes leases, sometimes options to sell, judgment or decree effecting title lis pendens,
wills, liens (judgment, tax liens, etc.)

C. The indexes
i. Tract index - indexes documents by a parcel identification number assigned to the particular tract - does not exist in most states
ii. Grantor-grantee index - indexes are kept for grantors and grantees, indexed alphabetically and chronologically under grantor/grantee's
surname
iii. How to search title - pp. 561-565
iv. ORR v. BYERS (Ct App CA 1988)
1) Judgment obtained by Orr against William Elliott - Orr's lawyer misspelled Elliot's name twice in recording the judgment (William Duane
Elliot, William Duane Eliot)
2) If the judgment was correctly recorded, Elliott would have had to pay off the judgment out of the proceeds of the sale
3) Elliott proceeds to sell the property to Byers - if Byers knew there was a lien on the property, he presumably would have wanted Elliott
to pay off the lien first
4) Orr's lawyers are suing Byers to foreclose the lien - question is - does Byers have record notice of the lien?
5) 2 innocent parties here - Orr and Byers - they are both in a bad situation
1) Court rules that the burden is on the judgment creditor (Orr) to take appropriate action to ensure that the judgment lien wil l be
satisfied - they are the ones who spelled the name wrong in the first place, and court isn't going to change the law
6) Many states find the other way in this case
1) Green - it is common knowledge that proper names are spelled in a variety of ways, and everybody is presumed to have such
knowledge
a) If the record of a name spelled one way should directly suggest to the ordinary mind that it is also commonly spelled another
way, the searcher should be charged with whatever the record showed in some other spelling under the same capital letter

XIII. EASEMENTS
A. In General
i. Arise out of interactions between parties that are not contractually based
ii. In modern day, the majority of restrictions are governed by statutes & explicit documents setting forth what rights/responsib ilities are of
property owners (neighborhoods use CCR's- covenants, conditions, and restrictions)
iii. Types of servitudes
1) License- permission to enter real property possessed by another
1) Revocable at any time
2) Profit- right to take something off of property of another
1) Example: timber or mineral rights
2) Even with this right, you need an irrevocable license to go onto property to take items
3) In some cases, a license can ripen into an easement

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iv.

v.

vi.

vii.

3) Easement- permanent right to enter property possessed by another

1) Classified as real covenants and equitable servitudes
2) Historically, difference is only in the remedy sought (enforceable at law v. enforceable in equity)
a) Example: covenant to not use land for commercial purposes
i) If it is violated, and the remedy sought is damages, then it is a real covenant; if the damages sought is an injunction,
then it is an equitable servitude
b) However, recent work and trends have moved toward consolidating real covenants and equitable servitudes into one
category: servitudes
Why have servitudes?
1) Developers saw benefit in placing restrictions on property use and thereby increasing property values for homeowners
2) Prior to zoning (1920s), this was the primary method of land use restriction- private owners could also form restrictions, but were less
likely to get together and coordinate than developers
3) In addition, covenants were historically used for other, less admirable purposes (racial restrictions)
Easement terms
1) Dominant estate - property that enjoys the use of the easement
2) Servient estate - property that is burdened by the easement
1) If the dominant tenement and the servient tenement come into the same ownership, the easement is extinguished altogether
3) Appurtenant - attaches to a particular piece of property
1) Ex.: I have the right to walk over my neighbors property - easement is attached to the fact that I live on the property next door
4) In gross - does not attach to a piece of property (based instead on user)
1) Ex.: Utility company easement over property to access electric wires - Easement attached to their company, not a piece of property
2) Transferable when they are commercial in nature - If utility is sold, easements can be transferred to new entity
3) However, personal in gross easements are not transferable - If I have the right to swim in your pool, I can't sell that right
5) Generally speaking, easements need to be in writing and subject to Statute of Frauds
1) With some exceptions (estoppel, prescription)
6) Easement holder cannot bring a possessory action against third parties - can't eject another person who is walking across property that
you have the right to walk across
7) Affirmative easement (most common) - Active use of someone else's land
8) Negative easement (limited & rare) - Preventing someone else from making use of their land that they would otherwise be permitted to
make
1) Historically, negative easements were not recognized by courts, as they could not be ascertained by merely viewing the land
9) Types of easements
1) Express - in writing, must comply with Statute of Frauds
2) Estoppel - Holbrook
3) Prescriptive - similar to adverse possession, have the right to use an easement after satisfying several doctrinal requirements
4) By Necessity - come into existence due to landlocked property
HOLBROOK v. TAYLOR (Sup. Ct. KY 1976)
1) Chronology is important, as there is no written document governing this easement
1) Taylors have historically used road by permission of Holbrooks, build host on land at a cost of $25k
2) In 1970, Holbrook wants written document that relieves him of any liability related to use of the road and $500 - Taylor refuses to
pay - sues for right to use roadway
2) Under Coase, parties should conceivably be able to reach the efficient outcome and bargain; however, most likely due to hostility
between families, they go to court
3) Easement is appurtenant- it is attached to the fact that the Taylors live next door
4) Not an easement by prescription-- since there seems to be permission, it cannot be characterized as hostile, and it is also not
uninterrupted & continuous (between 1949 and 1964)
5) Difficulty with showing prescriptive easement- owner must know of actual use, but not have given permission (unlikely if you are
neighbors with someone)
6) Normally, an easement is required to be in writing, so prior to this suit, Taylor only has a license
7) Requirement for easement when no writing is present:
1) Acquiescence by servient property owner, and reliance on acquiescence by dominant property owner shown by expenditure of
money on improvements or buildings
2) As Taylor has satisfied this requirement, he has an easement by estoppel
8) Other conclusions the court could have come to:
1) Award property rights to Holbrook
2) Award property rights to Taylor
3) Allow Taylor to use road but pay Holbrook for use of road (liability rule)
4) Allow Taylor to use road, but no payments to Holbrook (court decision)
9) Easements by estoppel can be terminated if circumstances change significantly (i.e. if a house burns down, etc.)
10) Usual rule is that easement can continue to be used for as long as a person is still realizing their expenditures
Restatement (Third) of Property - The expectations that create the servitude will also define its scope and terms - the relevant expectations are
those that reasonable people in the position of the landowner and the person who relied on the grant of permission or represe ntation would
have had under the circumstances

B. Implied Easements
i. Courts will frequently imply easements in situations where property is subdivided, and some showing is made of necessity
1) Implied grants - person who subdivides the property must grant easement to person who takes ownership of subdivided property in
need of easement
2) Reserved - person subdivides the property but retains an easement for personal use
1) Often, person who requests easement has higher burden of showing necessity here, as they could have taken care to retain
easement when they subdivided the property
3) Types of implied easements
1) Easement by necessity (Othen) - Prior to severance, one part of the parcel was apparently, continuously and permanently used as
an easement
2) Easement by prior use (Van Sandt)
ii. Determination of easement can be based on theory of what original owner would have wanted, as well as for public policy reaso ns (original
intentions)

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ii.
intentions)
iii. Quasi-easement - when a property owner utilizes an easement on their own property

C. Easement implied by prior use

i. Doctrinal requirements to establish an easement implied by prior use
1) Land has to have been owned by a single person
2) Parcel has now been severed/subdivided
3) Before the severance, one part of the parcel was apparently continuously and permanently used as an easement (actually a quasieasement - you can't have easement on your own property)
4) Easement is implied to protect the probable expectations of the grantor and grantee that the existing use will continue afterthe transfer
ii. VAN SANDT v. ROYSTER (Sup Ct Kansas 1938)
1) Late 1903/early 1904 - city of Chanute constructed a public sewer west of lot 19 - private lateral drain was constructed from the Bailey
residence on lot 4 running in a westerly direction through and across lots 20 and 19 to the public sewer
2) 1904 - subdivision
1) Lot 19 - Jones - has knowledge of sewer - eventually Van Sandt gets this lot
2) Lot 20 - Murphy - has knowledge of sever - eventually conveys to Royster
3) Lot 4 - Bailey - eventually conveys to Gray
3) March, 1936 - Van Sandt discovers his basement flooded with sewage - claims that defendants have no right to run the sewage pipe
across his land
4) Bailey is the grantor - she created the subdivision
5) Bailey was using sewage line as a quasi easement - there was prior use
1) Easement by reservation (as opposed to by grant)
6) Is the easement necessary?
1) Is there an alternative - another way to get to the sewer line?
2) Court agreed that the easement was necessary here
a) Something less than strict necessity - court is looking at if it is reasonably necessary
7) Apparentness of the easement is questionable here
1) Court says that there should have been knowledge here - but this is a pretty expansive view of knowledge - apparent is stretched
pretty far here
8) Court holds that an easement by implication was created under the facts

D. Easements by necessity
i. Doctrinal requirements to establish easement by necessity
1) Implied if the land was in common ownership
2) Severed into separate lots by owner
3) Severance creates the necessity for an easement - no requirement of prior use - Prior to severance, one part of the parcel was
apparently, continuously and permanently used as an easement.
4) Split of opinion over whether necessity is defined as strict necessity or reasonable necessity (majority)
ii. Easement by necessity v. implied easements
1) Implied easement can be harder to prove because you have to show prior use
2) On the other hand, easements by necessity can be hard to prove in the jurisdictions that require strict necessity
iii. Easement by necessity typically motivated by a public policy rationale - seems appropriate to apply because it must be what original grantee
intended - why would they want a lot to be landlocked?
iv. Easement by necessity only endures so long as it is necessary - if there is another way out from a landlocked parcel the easement ceases
v. OTHEN v. ROSIER (Sup Ct TX 1950)
1) Pre-1896 - Hill owns everything - more expansive than the land eventually in question
2) 1896 - 100 acres is conveyed, ends up with Rosiers
3) 1897 - 60 acres are conveyed - ends up with Othen
4) Same day in 1899 - 53 acres are conveyed - end up with Othen, 16 acres are conveyed - end up with Rosier
5) Othen has been used fenced lane across the bottom of 100 acres, and a path across the 16 acres
1) Owners of the 100 acres maintain the lane
2) Othen sues for easement when land is flooded, muddy, and un -useable
6) Question of element - severance causes the necessity
1) This is the question - when Hill divided the parcel, did it create the necessity? Did it land lock the parcel at the time?
2) Problem for O is that it is possible the severance did not create the necessity - burden is on O to establish that it did
a) How would he prove it?
i) Witnesses at the time - but they may be old /dead
ii) Better research of deeds/maps
3) O is out of luck on easement by necessity, probably out of luck on prior use
7) Necessity not a convenience
8) Court here finds against Othen
1) Argument that we should not stick by strict doctrinal rules (Singer article)
a) From an efficiency standpoint, doesn't make sense to penalize Othen by making his land locked
b) Fairness argument - Othen relied pretty extensively on the easement
9) Texas courts don't recognize easements by estoppel, but Othen would have had a pretty decent claim

E. Prescriptive Easements
i. Elements
1) Need to show actual use
2) Open and notorious
3) Continuous use
4) Needs to be under claim of right - hard to establish - frequently owner knows about the use
5) For a statutory period - typically the same period of time as adverse possession (CA - 5 years)
6) Can be some notion of exclusivity
ii. Easement by prescription isn't for all purposes - only for reason that led to prescriptive right
1) If you have an easement to walk over a path, doesn't mean you can drive over it
iii. Very purpose of common law doctrines like adverse possession and prescription are - at some point we can say that enough time has passed
that we shouldn't be litigating these claims

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F. Scope of Easements
i. What kinds of variations are permitted when times/circumstances change?
ii. When is the dominant owner misusing the easement by going beyond the scope of what the easement was granted for in the first instance usually talking about express easements
iii. Generally speaking, the scope questions come up in 4 different ways
1) Whether the use itself is of a kind contemplated by the grantor
1) Generally speaking, if the use doesn't increase the burden on the servient estate holder, and is fairly consistent with use p reviously
agreed on, court will say yes
2) Increase of use in the easement (even for same purpose)
1) Court typically ask one of two questions - start by looking at the intent of the parties in entering into the express agreement to see
if this kind of use is consistent with the intent (how much was paid for easement, what was the use at the time, etc.), or, j ust look
at what's reasonable
2) Generally, courts find that in the absence of an express agreement, some normal increase in the use of the easement is within the
intent of the parties
3) Whether the dominant estate gets subdivided
1) Can the three households now use the easement that crosses the servient estate?
2) General rule - yes - can subdivide the easement subject to reasonableness
3) Subdivision is common, so courts have generally been willing to allow the subdivision of easements
4) Rather than subdividing, you add to the parcel
iv. BROWN v. VOSS (Sup Ct WA 1986)
1) Owner of parcel B has an easement across parcel A - owner of parcel B then acquires parcel C with the intent to build a house straddling
the property line between B and C
2) Owner of parcel A tries to get an injunction against the owner of parcel B from using the easement for both parcels B and C
1) Textbook law - not allowed to use easement to access the extra parcel - in this case, wouldn't be allowed to use the easement to
access parcel C
a) Doesn't seem to make sense
b) Rules v. standards argument - if the property laws are clear, we avoid disputes
c) Might assume the burden would increase - for example, owner of B sells parcel C to someone else and they think that they
can then use the easement
d) Easement itself is express - this is what the parties clearly intended - the written agreement doesn't say any more than that
3) Property rules v. liability rules
1) Property rule
a) Brown - access to easement for C
b) Voss - enjoin Brown's use of easement for C
2) Liability rule
a) Brown - access to easement, has to pay damages to Voss
4) Court gives Brown access, makes him pay $1 in damages to Voss
v. Most courts will actually enjoin the use of an easement to get to an extra parcel
vi. PRESAULT v. UNITED STATES (US Ct App Fed Cir 1996)
1) Old railway lines were being used for hiking paths
2) Question of whether railroad abandoned the easement - if they did, the easement expires
1) Railroad dug up lines, haven't made an attempt to put anything else there
3) Judges seem sympathetic to Presaults and find that the use of the former rail tracks as trails constitutes a taking - no telling what the
level of foot traffic is
vii. HILL v. COMMUNITY OF DAMIEN OF MOLOKAI (Sup Ct NM 1996)
1) Four Hills Village - community for 4 unrelated individuals living with AIDS
2) Plaintiffs in the case live on the same street - restrictive covenant says that no house will be used for anything but single family
residences for non-commercial use
3) Defendant counterclaims, saying that covenant violates FHA
4) Lawyers for plaintiffs do establish that there is an increase in traffic
1) Traffic wasn't one of the covenant provisions so court doesn't really address it - the community had the chance to put in a traffic
position and didn't
2) If there was a covenant provision
a) Look at whether it is selectively enforced
b) Look at possible violation of FHA
5) What's the purpose of single family restrictive covenants?
1) One reason - don't want traffic
2) Maybe a little disingenuous on court's part to brush off the traffic issue like this
6) FHA
1) Unlawful to discriminate in the sale/rental of housing or otherwise make it unavailable any denial because of a handicap
a) No question that having AIDS is a handicap
2) Discrimination includes a refusal to make reasonable accommodations in rules, policies, etc.
3) 3 ways to establish a claim:
a) Establish discriminatory intent
i) Could probably make a decent claim here - could probably show that selective enforcement of the covenant is
motivated by ill will
b) Discriminatory effect claim (disparate impact)
i) Focuses on whether a defendant treated handicapped individuals differently from other similarly situated individuals,
and a disparate impact results
ii) Burden is on plaintiff who is claiming discriminatory intent to demonstrate it; burden then shifts to defendant to prove
absence of discriminatory effect
iii) Increased traffic and other factors would come into play in this discussion; defendant needs to show that there is a
legitimate & justifiable reason for the disparate impact
c) Failure to provide reasonable accommodations
i) Defendant must at least make reasonable attempts at accommodating handicapped individuals
ii) Analysis would include whether or not reasonable accommodations are feasible, and prior actions taken/not taken by

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i) Defendant must at least make reasonable attempts at accommodating handicapped individuals

ii) Analysis would include whether or not reasonable accommodations are feasible, and prior actions taken/not taken by
defendant
iii) Most litigation under Fair Housing Act focuses on reasonable accommodations
iv) In this case, court finds that restrictive covenant has effect of denying housing access to handicapped residents
7) Court finds that community can keep operating the house

XIV. ZONING
A. In General
i. Remember to look at state action v. private action!
ii. Has an active role in controlling land use
iii. Could argue that zoning is about trying to control externalities - trying to get property owners to act in their best interest when they otherwise
might not
iv. Euclidian zoning - separate land uses for conflicting uses
1) Social theory behind Euclidian zoning - has roots in garden city movement
1) Envisioned small towns, green belts, etc.
2) Central tenants adopted across the country
a) Idea that segregation of uses is desirable - different uses harm each other
b) Do the assumptions result in unintended consequences?
3) Central goal is to provide for "wholesome housing" - setbacks, minimum lot size, etc. - Idea that single family housing brings with it
small town values
4) Open space is desirable for healthy living - should surround both cities and houses
5) Idea that good planning protects against change and maintains the status quo
6) Failed to anticipate the need for density
7) Also - is homogeneity a good thing?
v. Zoning frequently doesn't cure the problems it sets out to cure
1) Preservation of open space frequently gets undermined
vi. Fundamentals about how zoning typically works
1) Power to zone typically comes from police power - authority to enact or enforce regulations for health or safety
2) Typically zoning power is regulated to different localities - very local function - zoning enabling acts
1) Zoning is typically left to a planning committee
3) Generally speaking - two types of zoning
1) Use zoning - limits kind of uses within a particular zone - usually cumulative
2) Area zoning - size of lots, heights of buildings, setback requirements, etc.
4) Most states require municipalities to enact a general plan - vision of how municipalities are supposed to develop
1) Provide some foresight for the future growth of a municipality
2) Most states require that changes in the zoning ordinance be consistent with the general plan
5) CA tends to be lenient for allowing zoning changes
vii. In general courts are quite deferential to zoning ordinances - CA is fairly deferential to planning board decisions
1) Except in the cases of constitutional violations, violation of statutory authority
2) Takings challenges - still tend to be deferential to zoning ordinances
viii. Types of zoning
1) Euclidian zoning - separate uses
1) Certain problems - having to drive from one area to another
2) Cluster zoning - idea is that residential uses are clustered more closely than normally permitted - provide for more open space
3) Plan unit zoning - allows for mixed uses where compatible

B. How to get out of zoning requirements

i. Planning commission has the power to grant a variance/exception to a zoning ordinance
1) Sometimes approval required by city council - or appeal can go to the city council
2) Basically administratively authorized departures from an ordinance
3) Usually have to show:
1) That there is exceptional and undue hardship in applying the ordinance to you without the variance (some courts - property is
otherwise un-usable)
2) That you have not imposed the hardship on yourself
3) That the variance would not be detrimental to the surrounding area
4) Some jurisdictions also require the permission of your neighbors
4) Can seek use variance or area variance
ii. Some zoning ordinances provide for a set of exceptions - conditional uses
1) Rather than seeking a variance, there is a procedure for some sort of unique/hardship that is statutorily recognized in advance
2) Idea is that the use may be allowable, but if not watched properly it may become a problem
iii. VILLAGE OF EUCLID v. AMBLER REALTY CO (Sup Ct US 1926)
1) Realty group is holding a 68 acre tract of land
2) In 1922 Euclid develops a zoning ordinance - turns out that areas of the parcel fall into different zones
1) Good chunk of the property remains zoned for commercial use - some is zoned so that Amber realty cannot use or sell the property
for increased industrial use
3) Amber has not applied for any building permits, etc. - attacking the zoning ordinance on the basis that it is facially invalid
1) Almost never see facial challenges to zoning ordinances - mostly see as-applied challenges
4) What is the constitutional ground here?
1) Substantive due process challenge - they are being deprived of liberty/property without due process
2) Does zoning interfere with property rights, or does it actually protect property rights?
a) Could argue that this is about protecting the surrounding property rights
5) Legal standard that court sets forth for future courts
1) Extremely deferential
2) Only need to have a debatable reason for why you are engaging in the classification, and the legislative judgment must be uph eld -

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reliance on the institutional competence of the legislature in making this decision

6) Observation that zoning can often help/protect private property
7) No takings challenge here - today we might try this case under a different part of the constitution
1) Generally speaking, substantial declines in value because of a zoning ordinance are not likely to be sustained
8) Court upholds the zoning ordinance - implies that Ambler could later attack specific parts of the ordinance, but Court isn't going to make
future determinations of legality
iv. STATE EX REL STOYANOFF v. BERKELEY (Sup Ct Missouri 1970)
1) Realtors were denied a permit to build an unusual house that was different from the surrounding area
2) Applicants have to apply to the architectural board, who decide whether the house will de-value the other properties in the area
1) To determine whether a plan conforms or not - p. 874
2) Any architect would know what the ordinance was trying to do here - foreseeable that you would run into trouble trying to build a
house like the one in question in this case
3) Statutory grounds that the Stotanoffs are objecting to
1) One ground in this it is arbitrary and vague - constitutional grounds
2) Statute actually doesn't authorize aesthetic zoning - town is going beyond its statutory power
3) City is exercising its police power - trying to protect health and safety of community - argument here is that the city is going too far
in trying to restrict non-conventional buildings - exceeding the police power
4) Court says this is not beyond the statutory power of the city
1) Does it matter that the city was trying to protect property values?
a) Probably - court might have been uncomfortable if no decline in property value was shown
b) Sometimes courts want to see some tie between aesthetic zoning and a decline in property value
c) Evidence about property value decline seems pretty speculative
d) Most realtors would say that unique architecture does not in fact reduce property value
5) Should aesthetics be a proper aim of zoning?
1) Underlying notion of conformity - want all houses to look the same
2) 1970's - anti-authoritarian youth movement v. a backlash of wanting to keep things traditional
3) Similar to nuisance - what you do with your property can effect other people
4) Where do we draw the line?
5) Really what you're doing here is expressing yourself architecturally - perhaps the municipality should have a better reason then
that they don't like how your house looks
6) Could protect the neighbors with a damage remedy - let the house go up, but if there is property value decline- let the neighbors sue
1) Might be that damages don't really compensate here

C. Constitutional issues in zoning

i. If a signage ordinance were to be content-based, then it is subject to strict scrutiny under the 1st Amendment - would need to be a compelling
state interest, and there is no way of serving that compelling interest in a less speech -restrictive way
ii. Time/place/manner restrictions - the idea is that we're not going to allow anyone to speak at a certain time of day, or you need to get a permit
to be in a parade, etc. - content neutral and the same for everyone
1) Subject to intermediate scrutiny
2) Court generally asks:
a) Is there an important state interest?
b) Is that interest served by the regulation and unrelated to the suppression of a particular message?
c) Is the regulation narrowly tailored?
d) Does the regulation leave open ample alternative means for communication?
iii. Intermediate scrutiny is applied to regulations that discriminate on the basis of gender, illegitimacy, and alienage
1) Substantially related to important government objective
iv. Strict scrutiny - usually (but not always) fatal
1) Laws must be narrowly tailored to meet a compelling state interest
2) Generally applies to - suspect classification, unequal distribution of a fundamental right (voting, procreation, travel)
a) If the burden on the protected right is too heavy, will be struck down
b) Rights are implicitly (though not explicitly) guaranteed by the constitution
c) Encompasses substantive due process
v. CITY OF LADUE v. GILLEO (Sup Ct US 1994)
1) Gilleo puts an anti-war sign in her yard - which violated a city ordinance
1) Files an action under 1983 - civil rights statute - often used whenever government violates a constitutional issue
2) Problem is that signs/billboard are conveying speech - 1st amendment issue
2) City retracts old ordinance and enacts another one - new ordinance eliminates variances and also adds a purpose section
3) How would city of Ladue portray this ordinance as content-neutral?
1) Virtually all kinds of signs are banned - dont care what the message is
2) Purposes - property values, aesthetic values of community, prevents traffic hazards, etc. - Really about reducing visual clutter
4) Under either test the court would probably say that the ordinance is problematic
1) Both over/under-inclusive
2) Under the ordinance, restricts too little speech - some signs are allowed while others aren't - under-inclusive
3) City recognizes that in some instances the content of the signs is worth the clutter
5) Court holds that "more temperate measures could in part satisfy Ladue's stated regulatory needs -" but this one violates 1st Amend
6) What if the homeowners association banned the signs?
1) Need a state action to sue on constitutional grounds - some lower courts have found state actions in similar sorts of bans
2) Not clear whether other courts would follow that lead - Shelley is largely restricted to claims under the 14th amendment
7) Probably represents a rapidly fading view
vi. VILLAGE OF BELLE TERRE v. BORAAS (Sup Ct US 1974)
1) Restriction on the number of people living together in a single family home
1) Only allows 2 people living together but not related to constitute a family
2) Euclid, Stoyanoff - typically defer to legislative judgment - except sometimes less deference to 1st amendment issues
3) Involve questions about the degree to which courts are going to be deferential to the legislature or apply a higher level of scrutiny
2) Density limitations are exempt from FHA
3) What are the options the court has in invalidating the statute at issue?
1) Rational basis - majority opinion

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1) Rational basis - majority opinion

2) Dissent looks at it as freedom of association/right to privacy - fundamental right
4) Once you are in the land of high deference, court will almost always uphold the ordinance
5) What does the city say that it is aiming at?
1) Quiet seclusion, clean air, burdens of high density, traffic, noise, etc. - family ambiance
2) Is this an over-inclusive way of regulating against these problems?
a) Under-inclusive - not necessarily just people who are not related to each other who will cause these problems
b) Over-inclusive - not necessarily the case that 3 unrelated people will cause these problems
c) Rational basis doesn't care whether you are over or under-inclusive
6) City could have density limitations - aimed at having too many people, rather than the composition of the family
7) Court upholds the zoning restriction under rational basis
vii. MOORE v. CITY OF EAST CLEVELAND (US Sup Ct 1977)
1) Women faces criminal penalty for violation of ordinance after living with a son and two grandsons who were not brothers
2) Ordinance defines family to include no more than 1 set of grandchildren
3) Court is NOT deferential to legislature
4) Case is analyzed under substantive due process clause (right to freely choose associations)
5) Court looks at how important government objective is
6) Distinguishes this case from Belle Terre in that Belle Terre involved only unrelated individuals, while this case involves related individuals
living together
7) Overinclusive in that it includes individuals in ordinance who are not causing problems
8) Underinclusive because it targets one particular family setup (you could conceivably have 14 brothers and sisters living in home without
violating ordinance)
9) Since heightened scrutiny is applied, the court finds that the statute is not narrowly tailored to fit goal of preventing overcrowding
10) Could also challenge this ordinance as showing racial animus/discrimination
11) Could argue that this ordinance disproportionately impacts minorities
viii. MCMINN v. TOWN OF OYSTER BAY (NY 1985)
1) Ordinance restricted single-family housing to any number of people related by blood, marriage, or adoption, or to two people not so
related but both over the age of 62
2) Court invalidated the ordinance because it infringed on the due process protections of the NY constitution
3) Objectives of the ordinance - to preserve character, control density, reduce traffic and noise, etc. were acceptable, but the means were
not - occupancy restrictions based on biological or legal relationships, the court said, had no reasonable tie to the city's objectives
4) Court said that neither Belle Terre or Moore set out the definition of "family" minimally necessary under the Constitution

D. Exclusionary Zoning
i. SOUTHERN BURLINGTON COUNTY NAACP v. TOWNSHIP OF MOUNT LAUREL (Sup Ct NJ 1975)
1) Town is trying to cope with rapid growth that is expanding past Camden
2) Property taxes in NJ fund schools, fire departments, etc. - similar to how CA used to operate
3) What Mt. Laurel is doing is engaging in fiscal zoning - try to minimize services they have to pay for
4) Various zoning policies city has adopted
1) Industrial usages - 1/3 of the land in the town is set aside for industrial use, but only a small fraction of it is
actually being used
2) Housing - Mostly zoned for single family use with large lot sizes
3) PUD projects - Does away with zoning regulations to create "mini towns," includes some multi -family housing
that is obviously not designed for lower income families/families with children
a) City would have to show pretty strongly that the burdens created by the development are offset - Nollan,
Dolan
5) Plaintiffs challenge these provisions on both state and federal constitutional grounds - Court addresses on state
constitutional grounds
6) Constitutional challenges under federal law have been eroded here
7) Any fundamental rights at issue here?
1) Housing - rejected in 1972
2) Racial discrimination - at this time, need to show discriminatory intent (Arlington Heights)
8) This is mostly challenged on fiscal grounds
1) Is the town motivated by economic discrimination? Yes - quite clear in the town's argument to the court
2) NJ state constitution also has an equal protection clause
a) Court says that under the NJ constitution all categories of people need to be provided for
9) What is Mount Laurel required now to do?
1) Have to allow for multifamily housing, small lots, etc., and provide for industrial zoning that is an equal match
for what the city can expect to attract
10) Mount Laurel litigation does not solve the NJ housing problems
1) If the plaintiff shows there is inadequate housing, burden shifts to municipality - fiscal reasons are not enough
2) One problem is that the court assumed that by eliminating zoning regulations, multifamily housing would
follow
a) Based on an economic assumption that may be wrong
b) Housing subsidies are actually a better idea
3) Just eliminating zoning barriers doesn't create the kind of housing the court hoped would happen
11) Mount Laurel II - municipality had to take affirmative action to put affordable housing on the ground
12) Court says Mount Laurel doesn't have to re-do their entire zoning ordinance, but have to comply with the spirit of
the opinion
13) Other states get uncomfortable when they see a lack of affordable housing

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13) Other states get uncomfortable when they see a lack of affordable housing

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Questions
Monday, April 21, 2008
4:15 PM

Penn Coal??? Keystone???

History of feudalism/fee simple?

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Review Session
Wednesday, April 23, 2008
2:26 PM

Issue spotter tips

- When you're reading - ask yourself - if you see facts, why are they there?
In this exam, the way in which Ben sees the rats and how frequently he sees them is relevant to whether he has a duty to
disclose - question of materiality
- Always important to think about how you can organize to help you analyze the most effectively
IRAC - Issue / Rule / Analysis / Conclusion
Duty to disclose
Need to think about whether a defect is latent/material
Here's the issue, here's the rule, now I'm going to talk about it, here's my conclusion
Discuss majority/minority rules
Discuss strength of your side of the case, strengths of the other side
- Have a little cheat sheet for every doctrinal area
- How to organize?
On this exam - break down each duty question by the issue - rat issue, window issue, etc.
Organization clarity usually brings with it analytic depth

Going through the issue spotter

- What did Corney actually convey to Elston?
Fee simple determinable
Durational language
Possibility of reverter
Fee simple subject to condition subsequent
Conditional language
Right of re-entry
Court usually defaults to condition subsequent - they prefer to make someone actually do something to keep the
property
- Is the condition violated?
Lack of living there for 2 years - you could say the condition was violated
With the inn - could argue that this is a residential use
They are still living there - just because there are other rooms doesn't mean that they aren't using it for residential
purposes
Restaurant - commercial use
- Not enough time for adverse possession
- Fee Simple Subject to Conditions Subsequent - Corney is estopped from making a claim because he didn't exercise his right to re -entry
Latches - idea is - why did someone wait so long?
Typically ok to assert even if the statute of limitations hasn't expired
Idea is that you can still be within the time period to file your lawsuit, but you should have done it earlier - in the
meantime the other parties did something to their detriment
True owner could have stopped the parties from violating the covenant in the first place
- What can Peter and Linda recover for the problems?
Windows
Duty to disclose
Latent - might be able to argue that this was not a latent defect - it was obvious and should have been picked up in the
inspection
Don't forget to go through all the doctrinal elements!
Material defect - hard to say that this is immaterial
As-is clause
That's what the latency is about - if you don't know about the defect you don't know you're taking it as-is
May be an as-is clause, but if it's a latent material defect we don't care
NY - doesn't impose an affirmative duty to disclose
If you're in a caveat emptor jurisdiction - no duty to disclose
Modern trend is to impose a duty to disclose
Standard part of a real estate contract
Implied warranty of quality
Latency
Can say you've already addressed this issue above and the same analysis applies
Reasonable time
2 years has passed - is this reasonable?
Lempke - 6 months

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2 years has passed - is this reasonable?

Lempke - 6 months
Might also want to mention that we would want to know what a normal warranty on windows is
Rats
Big question here about materiality
Also the case that Ben says they only had the problem a couple times in the kitchen
Zoning Issue
Frimberger - zoning violation does not constitute an encumbrance
Some facts in Frimberger leave open some questions
Does warranty against encumbrances cover violation of a zoning ordinance?
In Frimberger there was a question whether there was even a violation
One thing to think about - if we have one case on point that establishes the doctrine, may want to question that case a little
Part II
- Generic tips
Most often the case that there is an "on one hand, on the other hand" quality to these questions
If you agree with the question - are there other considerations to take into account? Are there opposing arguments?
1) Talk about pros/cons of using custom - and, is it ok to influence the outcome of the case
- Want to see nuance in these answers - recognize the weaknesses in your arguments
2) Want to mention something about how the relationship of INS to the public is different from the relationship between INS to A P
Part III
- This is where the quality of writing matters the most - these are meant to get you to think more deeply about issues - think in way
that is typically less doctrinal
- More about ideas, theories, etc.
- Take some time before you start writing to think about what you want to say
- Better written answers are typically more thoughtful/thorough
- Virtually all involve some element of doctrinal knowledge

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