Gregory Alexander Property Outline Cornell Law Fall 2017

(1) Acquisition of Property

A.Initial Acquisition of Property Rights

I. By Capture: Possession and Ownership (13-36)

Rules for animals:
(1) Actual possession
o Wild animals (Farae Naturae) can only be acquired through possession.
o For animals that it is possible to do so: must deprive the animal of its liberty and
have intention to appropriate it.
 Trapping and mortal wounding = deprivation of liberty
 Bringing within certain control = intention to appropriate
 Small enough animal (actual possession)
 Big animal like a whale (only need to prove you hurt it)
o Cases:
 Pierson v. Post
 Pierson kills fox during Post’s hunt. Post claimed possession, court
ruled that pursuit isn’t enough for ownership.
 Popov v. Hayashi
 Popov goes to catch baseball, knocked to ground by other fans,
ball pops loose and Hayashi takes it. Court rules through equitable
division and gives half to each due to pre-possessory rights.
o Policy:
 Want certainty over ownership, pursuit doesn’t give that.
 ‘Reasonable’ pursuit is too subjective of a standard.
 The certainty avoids disputes.
(2) Constructive Possession (Ratione Soli)
o Landowner considered as being in physical possession of a resource that is on
their land even if they aren’t physically possessing it.
o Case:
 Keeble v. Hickeringill
 Shoots at ducks in pond on Keeble’s land. Case is about
Maliciously intervening with someone’s business though!
o Policy:
 Stop trespass – by dissuading people from going on another person’s land
 Keep the peace – gives the chance to get animals back in court rather
than retaliating by going on the other person’s land to get back.

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 (3) Habit of return and associated rules
o Habit of return: If the animal has a habit of return then even when the animal is
off the land it is treated as being on the land still.
o Should have known: If a capturer should have reasonably known that the animal
was not naturally wild and would normally be possessed then the capturer will
lose to the original owner.
o Policy: Fairness
Rules for other ‘fugitive goods’:
a. Ad Coelum Doctrine:
o Land owners own everything beneath their land to the world’s core in a cone
shape, all the way above their land into space.
b. Water
o Riparian land (East USA)
 If you own land bordering water, can take as much of the water as you
want to the extent that it doesn’t lessen the water available to other
riparian land owners.
 Cannot divert or take the water off the riparian land parcel.
 Reasonable use:
 So long as the use is productive, can build industrial property
using the water even if it impacts the flow for other riparian
owners.
 No claim based on prior use.
 Policy: Water is abundant in the East so try to industrialize and promote
commerce.
o Prior appropriation (West USA)
 Person who first captures water and puts to reasonable use has superior
right to later appropriators.
 Complications re: start building first but finish building second…
 Can take water off the riparian land but must use it productively.
 Policy: Water is scarce in the west so cannot waste it.
c. Oil and Gas
o Any owner of land with oil underneath can drill and pump so long as they don’t
trespass on neighbor’s land underneath. Slant drilling = trespass.
o Policy: Using fugitive rules best proxy for oil and gas but obviously limited
analogy. Bad because may lead to a race to the pump and huge incentive to
cheat on any agreement (e.g. OPEC).
o Tragedy of the commons:
 Users of commons are utility maximizers and have incentive to use as
much as possible in the short run despite it leading to overuse and long-
term loss.
 Solution is to use property rights and divide the commons into parcels of
individual property. Minimizes transaction costs and negative
externalities.

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 II. Understanding Ownership (37-60)
Ownership as a Bundle of Rights
o Property law describes a collection of legally protected interests which can be
disaggregated into their component parts.
o Identify the interests for which each individual seeks legal protection
o Use appropriate policy analysis to adjudicate conflicts among those interests and
to determine the appropriate extent of legal protection for each other.
Basic Aspects of Ownership
a. The Right to Exclude
o Individuals have the legal right to exclude others from private property.
o Intentional trespass causes harm even if no actual harm is done to the owners.
o Cases:
o Jacque v. Steenberg Homes
 Trespassing on land with mobile home. Judge say it is so important to
dissuade intentional trespass that you can have punitive damages
even with no actual harm.
o Exceptions
o Necessity, private or public, may justify entry onto other’s land.
o Cases:
 State v. Shack
 Cannot stop a migrant farmer getting legal and medical help.
o Trespass:
o Civil – unprivileged (no consent from owner, lacks necessity, not justified by
public policy) intentional (the act) encroachment on another’s property.
Does not need to knowingly trespass though.
o Criminal – When knowingly trespassing and refusing to leave after being
asked to do so.
b. The Right to Transfer
c. The Right to Destroy
o Exception: Cannot demand that people destroy the land after you die
o Policy: people are stopped from being wasteful in their life by wanting to enjoy it, a
well ordered society cannot tolerate the waste and destruction of resources when
such acts directly affect important interests of living members of society.
d. The Public Trust and Public Domain in Land
o If land is public then it is owned by everyone and as such public should enjoy the
same usage as if it was privately owned.
o Private property rights may be curtailed to the extent that the public’s reasonable
enjoyment of public property is permitted.
o Must take into account: location in relation to foreshore; extent and availability of
publically owned land for access; nature and extent of public demand, etc.
o Case:
o Matthews v. Bay Head Improvement

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  Public must be allowed access to publically owned beach even if this
is via privately owned beaches, but only enough to enjoy public right.

III. By Creation: Intellectual Property (60-)

a) Misappropriation and Copyright (62-69)

o Hot news doctrine – misappropriation of hot news is a recoverable issue when
o The newsgathering or collection process involves significant expenditures
o The collected news or information is time sensitive
o The defendant free-rides on the collected material
o The freeriding directly competes with the newsgatherer’s market
o The freeriding is likely to diminish incentives to collect news / information in a
timely fashion. (e.g. stock tips & live sports scores)
o There is no property interest against the public in copyrighted news matter after the
moment of its first publication, but that doesn’t mean there is no property interest
between two rival news providers.

b) The Right of Publicity (69-75)

o Prevents the unauthorized commercial use of one’s name, likeness and other aspects of
one’s identity and gives the individual the exclusive right to license the commercial use
of these personal features. Key is appropriation of the identity.
o In many jurisdictions, the right persists up to 100 years after death.
o Issues with first amendment.
o Imitation depends on the right of people to engage in behavior that reminds you of
other famous people. If you protect celebrities and their right to commercially exploit
everything that reminds you of them, then what will become of the right of other
people to engage in imitation. E.g. Michael Jackson didn’t create the moon walk, James
Brown did.
o Policy:
o Need to balance the commercial interests of celebrities with the interests of
creativity coming out of the public domain.

c) Property in One’s body and Body Parts (75-89)

o There is no property in one’s body after it leaves the body and has been abandoned.
o Case:
o Moore v. UC Regents
 UC took Moore’s cells and used them to make money.
o Policy:
o Don’t want to create a market in body parts.
o There are already laws and procedures in place to protect hospital patients.

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d) Core Intellectual Property interests

(i) Patents (89-95)

o Five requirements for a patent to be granted under U.S.C. §101
o Patentability – Process (including business process), Machine, Manufacture, or
any composition of matter.
o Novelty – has not been preceded in identical form in public prior.
o Utility – must offer some actual benefits to humans.
o Non-Obvious (most important & most litigated) - is the invention a sufficiently
big technical advance of the prior art?
o Enablement – patent application must describe the invention in sufficient detail
so that one of ordinary skill in the art would be able to use it.
o Trade-off between granting a limited monopoly to the patentee, assuming that doing so
creates incentives for the patentee to engage in a creative and socially useful enterprise.
o Stops others from making, using, selling, etc. the invention during the 20 years from the
date the application is filed with the USPTO.
o Case:
o Diamond v. Chakrabarty
 Invention of new live bacteria was patentable because it was a new
creation, not a discovery.

(ii) Copyright (95-113)

o Prevents others from reproducing the work, creating derivative work, distributing work
to the public, performing or displaying it publically and by digital audio transmission.
o Three requirements:
o Originality – must be the independent creation of the author; and must
demonstrate at least some minimal degree of creativity.
o Work of authorship – literary works (including computer code); music, dramatic
works, pantomimes and dance; pictures, graphics and sculptures; motion
pictures and other audio-visual works; sound recordings; architectural works.
o Protects expressions, not ideas. Protects the form or mode by which ideas are expressed
for 70 years after author’s death (much longer than a patent).
o Cases:
o Feist v. Rural
 Directories and fact compilations are not copyrightable unless some level
of creation is involved in the compilation choices. (remedy still available
of interference / malicious interference with trade or ‘trade secrets’ and
contracts etc.).
o Eldred v. Ashcroft
 70 years after death is fine
 Policy: match the EU to encourage people to create in US. But lots of
policy against it such as doesn’t encourage any more within US.

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o Copyrights originally given to compilations because of the ‘sweat of the brow’ theory of
Pierson v. Post dissent. Got rid of this in INS v. AP.
o Defense against copyright infringement: Fair use (purpose & character of use, nature of
copyrighted work, how much of work is copied as a %; effect on potential market).

(iii) Trademark (113-119)

o Any “word, name, symbol, or device” used by a person “to identify his or her goods”
from those sold by others, and “to identify the source of the goods.” 15 U.S.C. §1127
o Protects the first to use a recognizable name / logo etc., no creation needed.
o Five requirements:
o Distinctive
o Must distinguish the good or service from others
o Non-functionality
 If an aspect is exclusively functional, can be protect by patents not
trademarks. Feature is functional if essential to the use or purpose of the
article, or affects the cost or quality of an article.
o First use in trade / commerce.
o Non-generic
 Generic terms (those that are synonymous with the product itself rather
than the manufacturer) are considered part of the public domain and
cannot be trademarked.
 Case: Re Cordua
 A churrascos restaurant cannot trademark the name churrascos
 Doctrine of foreign equivalents – foreign equivalent of a generic
English word is no more registrable than the English word itself.

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 Subsequent Acquisitions of Ownership
I. The Law of Finders (121-131)
o Heavily influenced by the policy of trying to return the chattel to the true owner.
o So whoever the true owner is most likely to look to to get the chattel back will win.
o Finder will have a stronger claim against anyone except the true owner
o Granting rights to prior possessors avoids creating perverse incentives to keep stealing
o Case:
 Armory v. Delamerie
 Chimney sweep keeps jewels because he found it.
o Bailment: The rightful possession of goods by a person who is not the owner of them.
o Voluntary: e.g. when you give your car to a friend for the weekend
o Involuntary: e.g. when someone finds something you lost.
o Standard of care: Depends upon who benefits from the bailment.
o Gratuitous bailee: if bailor is only beneficiary (e.g. no compensation for bailee),
bailee is liable only if damage from gross negligence
o Mutually beneficial: e.g. is compensated for it (car rental), bailee is liable if
damaged from ordinary negligence
o Benefits bailee only: e.g. borrows without paying for it, bailee liable for damaged
from much lower standard of negligence.
o True owner cannot bring a claim against 3rd party if they paid the 2nd party, but can
compel the 2nd party to hand over the money for it.
o Things lost found on someone’s land belong to the owner of the land, but again,
depends on the level of control they exercise over that land with the end goal being to
find the true owner / ease their finding of lost goods.
o Mislaid = owner intentionally placed it somewhere and forgot to retrieve it
o Mislaying party will beat the finder. Aids return of item to true owner who will
usually retrace their steps. Goes to whoever owns the locus of quo.
o Lost = the owner inadvertently lost possession of it
o Ruling goes with the finder, true owner doesn’t know where the good is and is
unlikely to retrace their steps to try and find it. Finder wins.
o When found in a highly private location where the public is not invited, the
owner of that location will retain possessory rights over the finder.
o Employees who find property while engaged in an act that their employer directs
them to perform are not entitled to the property –the employer gains ownership
o Abandoned = owner intentionally relinquishes all legal right to it with no intention to
confer rights on any particular person, finder will win. Must show intent.
o Treasure trove
o Gold, Silver, Bullion, or money concealed in a private container / place.
o Treated as lost or mislaid property, so when it is buried, usually given to the
owner of the land, not the finder.
o Shipwrecks

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 o Governed by finder’s law or maritime law. Finders applied in territorial waters if
land not owned by anyone else. US has title to any abandoned shipwreck
embedded in submerged lands of state and transfers ownership to that state.
o Maritime law says ship lost at sea on seabed remains the owner’s property
unless title was abandoned. Finder gets salvage award which is a % of the profit
of it.
o Statutes:
o Today, most states have statutes.
o Typically, requires finder to deposit found item with an authority like the police,
that item will have to stay with the authority for a period of time (e.g. 6 months)
to see if someone looks for it. The item is placed on notice. If not reclaimed, goes
to finder. Problem with using wording ‘lost’ because might be mislaid instead.

II. Adverse Possession of Land (132-151)

o 5 elements:
o Actual entry: depends on statute of limitations which runs against trespass
which requires actual physical entry on land.
o Exclusive possession: must be in the adverse claimant’s possession and use
cannot be shared with the true owner (e.g. by license) or with general public.
o Open and notorious: entry and use must be of the kind that would put a
reasonably attentive property owner on notice that someone is on their
property. Objective test.
 Usually straightforward but complex with boundary disputes / caves
underground for example.
 Maine Doctrine: Mistaking boundary lines negates hostility requirement
 Connecticut Doctrine: objective conduct doing what the owner of the
land would normally do is enough to establish.
o Hostile and adverse: cannot be with the true owner’s permission.
 Standard depends on jurisdiction:
 Objective standard:
o State of mind irrelevant
o All the matters is the conduct of the adverse possessor
o Once there is an entry against the true owner, they have a
cause of action
o Good because people can’t lie to gain title.
o
 Good faith standard:
o Mistaken ownership
o Must be a good faith claim to land
o Belief that entering land without any honest claim is
trespass and can never turn into an actual title.
o Encourages people to lie though
 Aggressive trespass standard

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 o Intending to gain title despite knowing it isn’t theirs.
o Encourages people to lie though
o Continuous and uninterrupted: permitted to come and go in the ordinary
course, given the nature of the property in question.
 True owner may interrupt the statute before it has run by bringing a
successful ejectment action against the adverse possessor, or by re-
entering the property.
o Doctrine of agreed boundaries
o If there is an uncertainty between neighbors about the true boundary line, an
oral agreement to settle the matter is enforceable if the neighbors subsequently
accept the line for a long period of time.
o Doctrine of acquiescence (reluctant acceptance)
o Long acquiescence – even shorter than statute of limitations – is evidence of an
agreement between the parties fixing the boundary line.
o Doctrine of Estoppel
o One neighbor engages in conduct that tends to indicate the location of a
common boundary, and the other neighbor changes their position in reliance on
the representation or conduct.
o Color of title:
o Adverse possession where the adverse possessor has taken possession on the
basis of some legal document that purports to give legal title to the adverse
possessor but is defective.
o Purest form of good faith adverse possession and not something courts are
worried about, as such, color of title adverse possessor’s gets advantages such as
short statute of limitations.
o Constructive adverse possession:
 If the faulty deed gives you a title to an entire plot of land and you only
possess a portion of it, then you will get your portion by actual adverse
possession and you get the rest of the land by constructive adverse
possession.
 Still have to enter the land to get it, and prior constructive possession
wins.
o Tacking:
o Tacking between successive adverse possessors is usually permitted only when
they are in privity of estate with each other.
o Privity clearly exists where A voluntarily transfers to B through purchase who
then, when their length of possession is together, exceeds the statutory period.
o Privity can oass by blood, contract, deed, or will.
o No tacking where there is wrongful exclusion of a party entitled to possession
o Case:
 Howard v. Kunto
 Everyone mistakenly lives in houses on the wrong lots but privity
of estate means that they can stay where they live.
o Policy:

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  Halts a series of trespassers from adding their periods of adverse
possession together.
 Want to draw a clear line between trespassers and genuine tacking from
color of title.
o Disabilities:
o If someone is unable to claim their cause of action within the statute of
limitations due to some hindrance such as imprisonment / mental disability /
being under 18, etc. then you get a 10-year leeway after the end of the disability
to make a claim.
o Ignore the second disability – only the disability of the first true owner counts.
 So if an heir has a second disability, ignore it and their legal
representative can bring suit.

III. Adverse Possession of Chattels (152-161)

o Elements:
o Actual
o Open and notorious
o Hostile and adverse (without consent)
 Objective (norm)
 Subjective (good faith)
 Subjective (bad faith)
o Exclusive and continuous throughout the entire statutory period
o Tacking is permitted.
o Discovery rule:
o In some cases, the statute of limitations (cause of action) does not begin until
the injured party discovers, or by exercising reasonable diligence and intelligence
should have discovered facts which form the basis of a cause of action.
o Test: (1) has the original owner used due diligence to recover the chattel at the
time of the alleged theft / loss and thereafter? (2) at the time of the loss / theft
was there an effective method to alert potential consumers that the chattel’s
title was theirs? (3) would the actions of the original owner put a reasonably
prudent purchaser on constructive notice that someone other than the
possessor was the true owner?
o Policy:
 Should encourage good faith purchases from legitimate art dealers and
discourage trafficking in stolen art without frustrating an artist’s ability to
recover their stolen work. Emphasis shifts onto the true owner.
 don’t want a requirement of instant reporting because you run the risk of
pushing the goods onto the black market permanently.
o Demand rule: NY
o Policy:
 Burden shouldn’t be on the true owner – wants to protect the true
owners so that they make an art market.

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  If people think it will be hard for them to recover stolen works
they will be less likely to punish them.
o No requirement that the owner exercises due diligence.
o But problems arise if you know where the item is but wait a long time to make a
demand.
o Rewards true owners who are lazy or weird in that they don’t try to claim their
own goods.
o Equitable doctrine: Laches
o Even though statute of limitations has not run you still have your legal cause of
action, equity will not give you the right to bring an action if you have reason to
have known that you have cause of action, reason to exercise your rights and
you unreasonable failed to do so.
o So may bar the true owner even though the demand rule lets them recover.
o Discovery v. Demand Rules:
o Difference is about the allocation of the risk of loss. Who can bear the cost of
minimizing the risk of loss better? Does a bonafide possessor have to insure
themselves against the risk that they may have to return their item to a true
owner, or is the true owner better placed to have the burden of recovery?
o Voidable title: can transfer good title to another despite not having full title yourself
o Void title: cannot transfer good title to anyone else. E.g. gained by theft.
o UCC 2-403: Thief acquires no title and therefore cannot transfer any.
o True owner will always recover against the lineage of transfer in cases of theft.
o If transfer is generally legitimate but there is some fault (e.g. check bounces)- the
bonafide purchaser (someone who makes an actual legal purchase) wins.
 A bonafide possessor who is mistaken as to the validity of the deed / title
is still considered hostile in the normal sense.

IV. The Law of Gifts (161-177)

o Requires:
o Donative intent
 Must intent to gift title to the property at that exact moment (but not
necessarily possession).
o Acceptance
 Almost never a problem – courts assume acceptance unless it is explicitly
rejects.
o Delivery
 Manual delivery (traditional – but relaxing)
 Symbolic
 Constructive
 Parted with all dominion and control that is required
 Policy:
 Cautionary – wrench of delivery, makes it concrete to the donor
the legal significance of what they are doing.

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  Evidentiary – evidence to other people that a gift was made and
to the donee that a gift was made.
 The type of delivery depends on the type of property.
 Usually, if it can be manually delivered then it must be. But
nowadays if a clear intent can be shown then unnecessary.
 Also no need to deliver if the property is already in the possession
of the donee.
o Gift inter vivos:
o Gift given and the title moves straight away, it is irrevocable
o Gift Causa Mortis
o Gift given in contemplation of death (about to die) and it is revocable if you
survive. Courts are worried about this type of gift.
o If a gift is made such that it only vests at death and the grantor is not about to
die then unless it is put in a will it is not a valid gift because must be present
intent to part with ownership.
o Burden of proof is on the proponent of the gift.
o Can gift remainders (e.g. you have full title, I keep a possessory interest and you have a
remainder in the possessory interest).

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 (2) Estates in Land and Future Interests
A.Measuring Ownership in Terms of Time: The
System of Estates
I. Presently Possessory Estates

a) Historical Background (181-184)

o Land used to be the dominant, most important form of wealth so land laws in the UK in
the last millennium were extremely important.
o The Monarch was (technically still is) the only person who owned land.
o Monarch divided up the land and gave it to knights who owed him dues (an enfefment).
o They only held the land and did not own it, when they died, the tenancy ends.
o But the knights wanted the tenancy to pass on to their heirs, so when the King passed
the land to the knights as tenants, in the transfer he included the language that gave a
right of inheritance to the lord’s heirs (by saying “and his heirs”).
o Once the expectation of “and his heirs” developed, everyone just expected it to become
naturally part of the enfefment even if it wasn’t written. Eventually it became a right.
o This became the fee simple.

b) The Fee Simple (184-187)

o Elements
o Heritable
 May go on forever if the lineage never ends (but sometimes it will end)
 Originally you could not transfer land outside of the familial lineage
o Alienability
 Not common law – came about from an act of parliament Statute Quia
Empryos 1290 and this is the first law to confer upon land holders the
right to freely transfer it.
o Not a new title
 Once transferred, the interest is the exact same as the original owner
had. It isn’t a new title.
o Originally you had to put in “and to X’s heirs” to signify it was a fee simple
(otherwise it was just a life estate). But today you don’t have to put “and the
heirs”.
 The future heirs only have an expectancy interest not an actual current
property interest.

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o A living person has no heirs. If someone dies with a surviving spouse, they will take
some share, then the rest of the heirs get a share depending on number of heirs.
o Seisin: the right of possession in a freehold estate
o Issue: descendants. Not all heirs are issue!
o First go to children, then to grandchildren only if their parent has died. If some
children are alive and some dead, the grandchildren surviving the dead parents
will equally share their parent’s share. If all children are dead and only
grandchildren survive, all grandchildren take equally regardless of their parents
and number of siblings. (but does vary state to state).
o Common law only allowed for blood issue, statute allows for adopted, but not
step children.
o After issue, goes to parents, then siblings, then grandparents (once at grandparents,
divide between maternal and paternal side and go down their surviving issue – doesn’t
matter if not equal because the people on each side aren’t related to each other).
o Policy: Most statutes stop at grandparents because the search costs of locating
the relative is too high.
o If no legal heirs exist then the land goes back to the state – called escheat.

c) The Fee Tail (198-189)

o Cannot transfer land outside of the family.
o Abolished in all but four states
o Was mostly a feudal thing to stop people selling family estates so it could stay in the
bloodline through the oldest male heir.
o Has to have had the wording “and the heirs of his body”.
o The person with the fee tail is called the tenant entail.
o If there is a fee tail, all the owner will have to do is execute a deed ‘to x and their heirs’
to turn it into a fee simple.
o Only expires when all the lineal descendants are dead and the line ends.
o When this happens, the fee tail ends and the land reverts to the grantor’s heirs
by way of reversion, or if specified in the deed, will go to another branch of the
family.
o Every fee tail has a reversion or a remainder after it.
o Today: (1) statutes provide that a limitation to A and his heirs creates a fee simple in A,
and any gift over on A’s death without descendant’s is void. Neither A’s descendant’s
nor B takes anything. (2) Fee simple in A, but a gift over to B if A dies without
descendants will be given effect only if at A’s death they have no descendants (not
when the whole lineage runs out). B’s interest is a divesting executory interest.

d) The Life Estate (189-202)

o A conveyance for life gives that person a life estate that lasts as long as their life.
o ‘A’ can transfer the life estate to B but the estate is still measured by A’s lifespan not B’s
o Every life estate has the future interest of a reversion or a remainder or both.

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o There is often conflict between life beneficiaries and the remainder interests because
the life beneficiary wants to maximize their own short-term gains and the remainder
interest wants to look out for the long term.
o Case:
 Baker v. Weedon
 Only way to sell farm is if all three parties agree (high transaction
costs)
o Issue is resolved by placing legal title in a trust. The trustee has the power to sell
as long as they do so looking out for all the beneficiaries of the trust.
o Law of waste:
o The remainder interest after the life estate is entitled to the property in the
exact condition it was left in at the point of the original death / transfer of the
life estate, even if the beneficiary wants to improve it and not touching it would
actually make it worse for the remainder.
o Must be explicitly stated that this is a life estate otherwise a fee simple is assumed.
o Restrictions on alienation:
o Direct restraints make property unmarketable, preventing it from moving
through market transactions to its highest and best use.
o Disabling restraints withhold from the grantee the power of transferring their
interest.
o Forfeiture restraints say that if an attempt to transfer is made, the interest is
forfeited to another person.
o Promissory restraints provide that the grantee promises not to transfer their
interest and the promise is enforceable by contract law.

e) Defeasible Estates (202-212)

o All four types of estates can be made defeasible (but most are fee simples)
o They are usually created to control person conduct (less so) or land use (more so).
o Fee Simple Determinable
o Need to use a word of limitation to create it (until / while / so long as, etc.)
 E.g. to X until his hair turns grey. As soon as the hair turns grey, I get the
house back.
o As soon as the condition is met, the fee simple is gone and it reverts back to the
grantor or to remainder.
o Possibility of reverter means that the grantor gave away the fee simple but not
the fee simple absolute that they held. It is fully transferable so can sell it to
another or can be passed down through their heirs (in most states)
o There must always be some other future interest, so if you don’t list someone
else (as a remainder) then it reverts back to the grantor.
 This can either be a possibility of reverter or with an executory interest.
o Fee Simple Subject to condition subsequent
o Upon meeting the condition, the fee simple is not reversed automatically.
o Future interest is the right of entry.

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 Must affirmatively try to kick the grantee off the land and possibly go to
court to assert their right of possession for breach.
o If you fail to assert the right of entry within a specific amount of time then there
is adverse possession.
 E.g. to X provided that his hair doesn’t go gray. Here, as soon as X’s hair
goes gray I have a right of entry back on the land but I need to assert it.
o “but if”
o Fee Simple Subject to Executory Limitation
o Same words of condition as in a fee simple subject to condition subsequent but it
behaves the same as a fee simple determinable.
o The difference is that the fee simple terminates automatically when the
condition is met, but the future interest (executory interest) is in a third party.
o E.g. to X provided his hair doesn’t go gray, otherwise to Q. As soon as X’s hair
goes gray, Q takes title.

II. Future Interests

1. classify the present estate
2. look at who has the future interest:
1. if it’s the grantor, 3 choices
1. Reversion, possibility of reverter and right of re-entry.
3. Think about how the future interest will become possessory
4. Determine whether the interest is vested or contingent:
5. Apply the following rules to contingent interests
(1) Destructibility of contingent remainders
(2) the Rule in Shelley’s Case (abolished in most states and not personal property)
o If (a) one instrument (b) creates a freehold in land in A, and (c) purports to create a
remainder in A’s heirs (or in heirs of A’s body) and (d) the estates are both legal and
equitable, then the remainder becomes a remainder in FS (or FT) in A
(3) the Doctrine of Worthier Title
(4) the Rule Against Perpetuities

a) Reversions back to the grantor (216-218)

o Reversion
 The interest remaining in the grantor, or in the successor in interest of a testator, who
transfers a vested estate of a lesser quantum than that of the vested estate which he
has.
 Don't have to create a reversion, it is automatically created
 The interest must be vested to bear any relevance
 If there is no possibility of the actual reversion but where there are contingent
remainders so that it will never come back to O, it is a technical reversion.
 If life estate + vested remainder in fee simple then no reversion
 If life estate + conditional remainder in fee simple then reversion
 Reversions are always vested and fully alienable

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 o Possibility of reverter
o When a grantor creates a determinable estate
o Vested and fully alienable
o Right of reentry:
o When grantor creates a fee simple condition subsequent.
o Not vested until the event that triggers it occurs
o In some jurisdictions it is alienable, in others it is not.
o Fully inheritable though.

b) Remainders and Executory Interests (219-226)

o Remainders:
o Future interest in grantee w/capacity of becoming possessory at the expiration of prior
estates
 Must have a preceding estate from the same instrument
 Must follow a fee tail, life estate, or term of years leasehold
 Must be capable of becoming possessory on the natural termination of the
previous estate
 There is no remainder after a fee simple absolute
o Vested indefeasibly
o No conditions on the vesting
o In an ascertained person and not subject to a condition precedent.
o Have the right to immediate possession, whenever and however the preceding
freehold estates may determine
o Vested subject to open
o Subject to a condition, if a certain event occurs, the shares in the remainder are
diluted
o Cannot be to a single person
o So if a group has a vested interest, the interest only vests when the entire class
meets the condition precedent.
o Vested subject to complete divestment
o Subject to a condition, if that event ever occurs it will cause the remainder to
become terminated completely
o Contingent remainder:
o Remainder that is either created in an unascertained person or subject to a condition
precedent
o e.g. unborn children – to A for life, then to A’s children. A has no children, contingent
b/c not ascertained at time of conveyance
o e.g. heirs – to A for life, then to B’s heirs. B is alive. Since no one is an heir of the living,
takers are not ascertained.
o Complicated example he might use: reversion in O with alternative contingent
remainders: “O to A for life, then to B if B survives A, but if B does not survive A to C.” If a
life estate terminates prior to life tenant’s death by forfeiture or merger, would revert back
to O. Also, if both B and C die simultaneously, neither take.
o Executory interests:
o When there is a gap of time between the end of the previous title and the next right of
possession.
o Must divest or cut short the previous estate.

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  E.g. to X until Y comes home. Until Y comes home, X has the fee simple, and Y’s
act of coming home divests X’s estate.
o Destructibility
o Only applies to land
o Only applies to legal interests - so no trusts
o The contingent remainder must vest by the time the life state ends else it is destroyed
o If the remainder is still subject to a condition precedent when the preceding estate
terminates, the remainder is wiped out, and the right of possession moves on to the next
vested interest.
o Jurisdictions have attempted to get rid of contingent remainders because they clog up
alienability
o A legal remainder in land is destroyed if it does not vest at or before the termination of the
preceding freehold estate.
o Merger
o The doctrine of merger is if the life estate and the next vested estate in fee simple come
into the hands of one person, the lesser estate is merged into the larger.
o You must construe a limitation as creating a contingent remainder rather than an executory
interest if that construction is possible.
o Doctrine of worthier title
o The doctrine of worthier title provides that where there is an inter vivos conveyance of
land by a grantor to a person, with a limitation over to the grantor’s own heirs either by
way of remainder or executory interest, no future interest in the heirs is created; rather,
a reversion is retained by the grantor.

B. The Rule Against Perpetuities (223-244)

o Judges ruled that a person can realistically and perhaps wisely assess the capabilities of living
members of his family, so with respect to them, the father’s informed judgement was given
effect. But the head of the family can know nothing about unborn people.
o So, the judges fixed the period as lives currently in being plus 21 years thereafter.
o No interest is good unless it must vest, if at all, not later than 21 years after some life
in being at the creation of the interest
o The compromise it strikes is that property may be tied up with contingent interests for lives in
being plus 21 years thereafter, but no longer.
o The donor can provide for all those in his family whom he personally knew and the first
generation after them upon attaining majority age.
1. The mechanics of the rule
o Step 1: which interests
o The rule only applies to interests that are not vested at the time of the conveyance that
creates them
 Contingent remainders
 Executory interests
 Class gifts
o Step 2: what is the perpetuity period (when does the perpetuity clock begin to run?)
o If there is any possibility that a contingent interest will vest too remotely, the contingent
interest is void from the outset.
o Must prove that a contingent interest is certain to vest or terminate no later than 21
years after the death of some person alive at the creation of the interest.

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 o If the contingent interest is created by will, the life in being must be a person alive at the
testator’s death.
o If the contingent interest is created by an irrevocable inter vivos transfer, the life in
being must be a person alive at the time of the transfer.
o
o Step 3: what is / are the relevant future events?
o Step 4: the search for a validating life
o The validating life is a person who will enable you to prove that the contingent interest
will vest or fail within the life, or at the death of that person, or within 21 years after
that person’s death.
o Then test each of the lives with the what might happen question
 For that person is there some possible (not necessarily probable) chain of post-
creation events such that the contingency might still remain unresolved, one
way or the other, after that person’s death plus 21 years have passed?
o Issues with class gifts
o Not vested in any member of the class until the interests of all members have vested,
i.e. until the class has closed and all condition precedent have been satisfied, a.k.a. the
all or nothing rule
o example: O conveys to A for life, then to A’s children for life, then to A’s grandchildren
in FS. Gift to A’s children will vest, if at all, at A’s death. If A has a grandchild B alive at
the time of conveyance, remainder is vested in B subject to open, BUT IT IS NOT VESTED
under the RAP. Remainder is a class gift and will not vest until all takers are identified.
Because gift to children is also open, A may have an afterborn child. Therefore, if all
grandchildren and children die, and the afterborn child has a child, but is more than 21
years after the expiration of the relevant lives. INVALID.
o Wait and See Doctrine:
o Validity of interests is judged by actual events as they happen, and not by possible
events that might happen. About 1⁄2 the states have adopted it.
o Wait and see for the perpetuities period: wait out the common law perpetuities period
before declaring the interest void.
 (1) example: O conveys Blackacre to A for life, remainder to A’s children who
reach 25. Remainder is void under the what might happen test. Under the wait
and see approach, see what happens during the perpetuities period (lives of A
and children + 21 years). Gift is good if ALL children reach 25 within the period.
If they do not, gift is bad as to all of A’s children, including those who are 25+,
under the class gifts rule.
o Wait and see for 90 years: Uniform Statutory rule
 Rejects waiting for the common law perpetuities period and calls for waiting for
90 years. If a contingent interest satisfies the what might happen test of the
common law, or actually vests within 90 years, it is valid under the Uniform
Statute

C. Co-Ownership: Concurrent Estates (254-266)

Common law concurrent interests
o Remember that these interests are interests vis a vis another party, not the land, so you can
have a combination of the following relationships apply to one land.
o Tenancy in common

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 o Tenants in common have separate but undivided interests in the property
o The interest of each is descendible and may be conveyed by deed or will.
o No survivorship rights between tenants in common
o Joint tenancy
o Right of survivorship
o Regarded as a single owner
o So each owns the undivided whole of the property, so when one joint tenant dies,
nothing passes to the surviving joint tenants because they already owned all of it
anyway.
o All joint tenants have equal interests with regard to;
o Time
 The interest of each joint tenant must be acquired or vest at the same time.
o Title
 All joint tenants must acquire title by the same instrument or by a joint adverse
possession.
 A joint tenancy can never arise by intestate succession or other acts of law.
o Interest
 All must have equal undivided shares and identical interests measured by
duration
o Possession
 Each must have a right to possession of the whole
 After a joint tenancy is created, however, one joint tenant can voluntarily give
exclusive possession to the other joint tenant.
o If the four unities exist at the time the joint tenancy is created but are later severed, the joint
tenancy turns into a tenancy in common when the unities cease to exist.
o Tenancy by the entirety
o A tenancy by the entirety can be created only in husband and wife (or people prohibited
from marrying)
o The tenancy is like a joint tenancy in that the four unities, plus the 5th (marriage) are
required.
o Surviving tenant has the right of survivorship.
o Neither party can defeat the right of survivorship of the other by a conveyance of a
moiety to a third party.
o Neither party, acting alone, has the right to judicial partition of property held as tenants
by the entirety.
o Exists in < ½ states.
o Presumptions
o Common law favored joint tenancies over tenancies in common, but today the situation
is reversed; the presumption favoring joint tenancies has been abolished in all states.
o Avoidance of probate
o A joint tenancy avoids probate because no interest passes on the joint tenant’s death.
o Joint tenant cannot pass their interest in a joint tenancy by will.
o Unequal shares
o At common law, if A owned 1/3 and B 2/3ds, A and B could not hold as joint tenants,
they would hold as tenants in common
o This is increasingly being ignored by courts though.

Severance of joint tenancies

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 o Mortgages?
o Jurisdictions are divided over whether mortgages sever joint tenancies
o Case:
 Harms v. Sprague (in Illinois)
 Mortgage doesn’t get full title on either lien theory of mortgages nor on
title theory of mortgages. Therefore, once mortgaging party dies, so too
does the mortgage because can’t have a mortgage on an interest you
don’t own.
 Policy: fairness – causes lenders to deal with both parties
o Leases?
o Jurisdictions are divided over whether a lease severs a joint tenancy
o But more seem to be saying it does not sever.
o Lease terminates upon leasing party’s death.
o Severing:
o Only applies to joint tenancy
o Cuts off the right of survivorship and transforms the tenancy into a tenancy in common.

Partition
o The action is available to any joint tenant or tenant in common
o Unavailable to tenants by the entirety
o In Kind:
o Physically divide the property.
o Sometimes impossible to do by geography etc , so when one party gets more than their
share, the other party reimburses them by Owelty
o By sale:
o Most common just because it is so much easier
o Case:
o Delfino v. Vealencis
 A partition by sale should be ordered only when two conditions are satisfied
 (1) the physical attributes of the land are such that a partition in kind is
impracticable or inequitable, and
 (2) the interests of the owners would better be promoted by a partition
by sale.
o Note: nowadays it is often impracticable to partition in kind. Plus, in the Deflino case, the court ruled
as it did by taking into account the fact that one of them lived on the lot. Should be different rules
out of fairness for when someone has a home on the land v. just ownership interest but not all
courts follow this.
o If a court orders partition, whether by sale or in kind, it might also order compensation in order
to make appropriate adjustments
o E.g. to compensate for the fact that partition in kind results in one cotenant getting a
more valuable part than other cotenants, or that partition by sale yields a higher price
that it otherwise would because one of the cotenants made certain valuable
improvements.
o Re: black farmers
o Have worked to their disadvantage
o Heirs take the family farm as tenants in common, after several generations the number
of cotenants owning any particular farm can become unmanageably large.

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 o Gives one white owner who purchases a tiny interest in land the chance to force sale
and own it all.

Sharing the Benefits and Burdens of Co-ownership

o If concurrent owners enter into an agreement concerning their rights regarding shared property,
the agreement is governed by contract law.
o Obviously though, not everything is agreed, so still need property law to decide issues.
o Case:
o Spiller v. Mackareth
 Tenants in common each have an equal right to occupy; and unless one in actual
possession denies to the other the right to enter, or agrees to pay rent, nothing
can be claimed for such occupation.
 So you need actual ouster or denial of right to occupy to have a claim.
o Ouster
- Majority view
o In the absence of an agreement, the occupying tenant owes the non-occupying
tenant nothing in rent unless they have ousted the non-occupying tenant.
- Minority view
o Some jurisdictions take the view that a cotenant in exclusive possession must pay
rent to cotenants out of possession even in the absence of ouster.
- Which one you think is better depends on the situation and relationship between the
parties.
- For adverse possession ouster
o Must deny the co-tenancy and assert full and sole right.
- For rent purposes
o Ouster does not require a claim of complete ownership.
o Just needs refusal to enter.
- There is such a thing as constructive ouster when someone has been beaten for example by
a husband and has left the house.
Rents and profits
- In all states, a cotenant who collects from third parties rents and other payments arising
from the co-owned land must account to cotenants for the amount received, net of
expenses.
o An accounting is an equitable proceeding in which a cotenant seeks to obtain his
share of the rents or profits generated by the property.
- Absent ouster, however, the accounting is usually based only on actual receipts, not fair
market value.
Taxes, mortgage payments and other costs
- A cotenant paying more than his share of expenses such as taxes and mortgage costs is
entitled to recover to contributions from other cotenants, at least up to the amount of the
value of their share of the property.
o A contribution is where a cotenant who pays more than his share of taxes,
mortgage payments and other necessary carrying charges seeks contribution from
the other cotenants.
Repairs and improvements
- Necessary repairs: most recognize no affirmative right to contribution from the other
cotenants in the absence of an agreement.

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 - Improvements: a cotenant has no right to contribution from other cotenants for
expenditures for improvements. No credit is given for doing so in an accounting action.
- The general rule though is that the interests of the improver are to be protected if this can
be accomplished without detriment to the interests of the other cotenants.

(3) Landlord and Tenant Law

A.Types of Tenancies (281-288)

B. Discrimination in Tenant Selection (288-293)

C. Assignments and Subleases (294-308)

D. Landlord Rights and Remedies; Defaulting

Tenants (315-322)

E. Tenant’s Rights and Remedies: Landlord’s Duties

as to Care and Condition of the Premises (323-
344)
I. The Duty to Deliver Possession

II. Duties regarding the condition of the premises

III. Quiet enjoyment and Constructive Eviction

IV. Implied Warranty of Habitability

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 (4) Intro to Real Estate Transactions
A.Introduction (347-361)

B. The Deed
I. Warranties of Title (388-391)

II. Delivery (397)

C. Financing a Real Estate Transaction (Subprime

Mortgage Crisis) (398-400; 406-423)

D. Title Assurance: The Recording System

I. Intro to the Recording System (425-429)

II. Types of Recording Acts (437-440)

a) Chain of Title Problems (446-451)

(5) Private Arrangements for Controlling

Land Use: The Law of Servitude in
Land

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 A.Overview (482-486)

B. Easements
I. Creation (487-492; 497-514)

II. Scope of Easements (515-533)

III. Termination of Easements & Negative Easements (533-544

& handout)

C. Covenants Running with the Land (Real

Covenants and Equitable Servitudes) (535-555)

D. Common Interest Communities (555-570)

(6) Constitutional Protection of Property:

The Takings Problem
A.Introduction (619-620)

B. The Public Use Requirement (620-627)

C. Implicit (Regulatory) Takings (627-690)

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