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I. What is Property? Overview and introduction

a. “bundle of rights approach”: property consists of a bundle of rights or expectations in tangible or

intangible things that are enforceable against third parties, including the government”.

b. Bundle of rights- right to possess, the right to use, right to exclude, right to alienate or transfer. 2
Approaches: a) Property is acquired-then entitled to the bundle of rights: or b) property ownership
is determined according to how many rights you have, the more rights from the bundle, the more
of an ownership interest.

c. Theories of Private Property

i. Occupational: fact that one occupies or possesses (different) one thing entitles them to protection to the
claim of the thing.

ii. Labor theory: a person has a moral right to the ownership and control of things that she produces or
acquires through labor.

iii. Contract theory: private property results from a k b/w parties.

iv. Natural Rights: notions of tradition and history that its natural

v. Social utility: law should promote what’s best for the max amount of people.

d. Acquisition, Possession, and Ownership-First Possession and Labor/Investment Theory

i. Moore v. Regents of California (Cal. 1990): Moore sued for conversion (and lack of informed consent)
where the defendant excised cells from his body and made a product for pecuniary gain. Underlying issue
of whether Moore had a property right to his cells once excised from his body? The court held that the
individual does not have a property interest in any cellular material removed from the individual’s body!
Policies: Labor theory- D’s “invented” the cells which were not unique to Moore and thus labored and
invested (patent) the right to own it, Social Utility- best for society to advance research and not chill it w/
litigation. Don’t want individuals exploiting their body parts on the market (slope-slavery). Dissent-
believes upholding the dignity of the body by allowing Moore to have property interest in his own cells
(contents of the product) IT IS PROPERTY! Arguments (Broadest- human body is not property)
narrowest-limit to conversion-excised). Sperm Case- sperm not treated as property in husband’s estate!

e. Possession (Capture): Possession is relative to the context. Generally one must have both control
and dominion over the property to possess it. Actual Possession creates a presumption of the right
to possess that may be rebutted w/ a superior claim.

f. Wild Animals- not owned by anyone, once a person has Gained Possession of a wild animal, he
has rights in that animal to superior to everyone else. Escaped Wild Animals: If an animal is
captured in a cage, but then escapes? Is deemed to have returned to nature and once more belongs
to no one.

g. Pierson v. Post (First Possession-Capture): Post had been hunting a fox with dogs all day and
Pierson comes out of nowhere and kills the fox. Issue as to who has the property? MAJ- mere
pursuit is not enough-the person must mortally wound the animal and not abandoned it in his
pursuit and depriving it of its natural ability to move (Capture). Policy-of a bright line rule.
Dissent- possession occurs when one has reasonable prospects of catching it in sight
(labor/investment) Custom-

h. Glenn v. Fick (Whale Case): ct. looked into “custom” of whaling and held that: possession occurs
when one lances the whale, killing it, although it sank to the bottom and was found by another
days later. When wild animals (duck) is on owner’s premises, owner has possession (not in air).

i. Popov v. Hayashi (2002): Popov stopped the barry bonds ball and was interfered by the crowd in
which Hayashi recovered it. Who has possession? RULE: Where an actor undertakes significant
but incomplete steps to achieve possession of a piece of abandoned personal property and the
effort is interrupted by the unlawful acts of others, the actor has a legally cognizable pre-
possessory interest in the property. Equitable Distribution: BLACK LETTER RULE:

j. Popov and Pierson applied- Post would argue pre-possessory interest b/c labored into the ball w/
reasonable prospects; ct. likely rule that Pierson gets the fox-had actual possession (no unlawful
interruption). If Pierson had unlawfully interfered; Post would likely get the property, if a 3rd party
unlawfully interfered; both would have a pre-possessory interest in equitable distribution.

k. Intellectual Property and intangible property- (copyright (art), patent (invention), trademark
(symbol)): Qualitex Case- Ct. held that color is a trademark pursuant to the Lantham Act, and
could be protected by law. Labor theory-Qualitex labored to get reputation over the pads
(REPUTATION-trademark) Don’t have to prove economic harm-only that there was confusion or
misunderstanding to the source of the product.

l. Finding Property (Subsequent Possession): Classification of property dictates-possession

i. For the finder to gain possession, he must do more than discover, he must have physical control and
intent to assume dominion over them. Ex-someone who finds a shipwreck and attaches a buoy to it does
not have possession if he leaves it there for months after.

ii. Lost Property- property is lost when the owner involuntarily or accidently left it somewhere and then
forgets where she put it. The finder of lost property does not acquire title to it against the true owner;
rather, the true owner has a right to recover the lost property from the finder. However, the finder has a
right to recover against all others (states usually will give it to the finder after a certain period of time).

iii. Mislaid Property- voluntarily put in a place by the owner who overlooks and forgets where the property
is. The finder of mislaid acquires no rights to the property and the right of possession of mislaid belongs
to the owner of the premises upon which the property is found, as against all persons other than the true

iv. Abandoned Property- owner no longer wants to possess it-owner intends to abandon the property with
voluntarily relinquishing all right, title, and interest-----belongs to the finder. FINDER HAS RIGHTS
SUPERIOR TO THOSE OF EVERYONE BUT THE TRUE OWNER (i.e. goldsmith who finder takes
jewels to appraise)
v. Treasure Trove- coins/currency concealed by the owner-element of antiquity, property must have been
hidden or concealed for a length of time that the owner is dead or undiscoverable. Treasure trove belongs
to the owner.

vi. Landowner: if a person finds abandoned property/lost/mislaid on another’s property and is trespassing,
the landowner will win. Courts are split on if there is consent, generally they will award to finder (Ex-old
man lets kids on his lawn and they find gold---consent?)

vii. Embedded Soil Rule: personal property embedded in the soil, awarded to landowner.

viii. Underlying Equities and Common Sense- grey areas usually call for common sense-i.e. wallet on the
floor of the movie theater----likely lost b/c who would intend to leave it.

ix. Public v. Private- Private place = land owner, public place = finder.

m. Charrier v. Bell- tribal artifacts in a burial ground were awarded to the descendants of the tribe as
“mislaid property”. The ct. concluded that the property was not abandoned b/c the tribe did not
“intend” on giving it to the first person who found it but rather to uphold their spiritual beliefs.

n. Benjamin v. Linders- $18,000 currency found in envelopes concealed in a wing of a plane during
maintenance. The ct. deemed it as mislaid property b/c it was obviously intentionally placed their
where the owner likely forgot about it (Fact supporting- heavy concealment (intent), lot of money
(who would abandon), not old enough to be treasure trove) thus, the property was not lost. It was
awarded to the owner of the plane (premises) where it was found---policy that the true owner
would return to the place where he had left it. Rule: Mislaid=landowner and not finder!

o. Amputated Leg- is it property? Moore dictates-could be distinguished in that he intended to

control it. Court would likely say its property and find it under finders law as mislaid b/c he had an
intent to keep it but forgot about where it was when it was sold in the grill.

p. GIFTS: a voluntary, gratuitous, and irrevocable transfer of property to another w/out

compensation or consideration. A) inter vivos (gifts made when living) vs. causa mortis (death)

i. Capacity-donor must legally “own” the gift to transfer it (cannot be illegal)

ii. Present intent to transfer- a gift is not effective if it was intended to take place in the future. It must be
here NOW! However, courts will uphold a present gift with future enjoyment-i.e. ticket to a met game 1
month later. (Future must be through will)

iii. Delivery-possession, dominion, and control must pass to the another person to the point of no return. A)
is delivery possible only by actual? B) If not was it delivered? Dominion

1. Actual Delivery- unless physical delivery is impractical or impossible (heavy item, etc.) constructive or
symbolic delivery may be required.

2. Symbolic- instead of delivery itself, something is given in place i.e. a title or document that states
though----associating a name with the title.

3. Constructive- when the donor delivers the “means” of obtaining possession such as a key, code, etc.
4. Third Person Delivery-if the donor gives the property to a 3rd person to transfer to the done that is

5. Intangible Delivery- bank accounts or other documents closely associated with the intangible property
are effective delivery

6. Gifts already in one’s possession: A lends B his book. A says you can just keep it-courts call for no
further delivery.

7. Bank Accounts/Savings/Bonds: Tough issue when a donor makes a joint account and still has access to
withdraw and deposit from the account. The court will usually take into account the totality of the
circumstances to see if the donor had made a present intent to transfer the account and had delivered-by
relinquishing dominion or control to the donee.

8. Hocks v. Jeremiah: Donor had joint access to a deposit box w/ donee w/ 22 bonds. Ct. held that 4 bonds
were effectively delivered b/c handed over w/ a present intent to transfer. However, other 18 bonds were
not b/c there was no effective deliver: Donee never used the box where Donor frequently used it as well
as put it as collateral for a loan----indicated that he still had possession and control until his death
(notes) etc. She even knew this!

iv. Acceptance: the gift must be accepted implicitly or physically. If the gift is beneficial, acceptance is

1. Engagement Rings- states treat the issue of a gift differently-a) as any other gift, b) as a conditional gift-
delivery is effective upon which it is accepted (acceptance can occur to engage or actually marry?).
Etiquette and custom control in many cases-is it right for the woman to keep it if she calls it off? Some
states even call for fault based but this is the minority rule.


a. Statutes of Limitations that bars the rightful owner of property from suing to recover possession
from one who has wrongfully entered the property. Most states have 10 year requirement.
Essentially the doctrine transfers ownership from the owner to the adverse possessor

b. Policies: Maximize utility of the land, Labor Theory, encourage landowners to secure their land.

c. Causes of action: a) ejectment- property owner’s c/a to remove the adverse possessor, b) Quiet
title- brought by the adverse possessor to become the owner via a declaratory judgment, c)
Defense-ultimate defense to an ejectment suit.

d. Elements: Standard of proof is CLEAR AND CONVINCING (real property is at stake!) The
physical elements include (actual, open and notorious, exclusive, and continuous) intent element =
hostile/adverse. DATES AND NATURE OF PROPERTY (Ask where am I?) important! Distinguish
b/w use, possession, and occupancy! You cannot adverse possess govt. or public property!

i. Actual possession: the person must physically occupy the property! Actual occupancy means the
ordinary use to which the land is capable and such as the owner would make of it. Building, making a
fence, living on the property, or other significant activities on the land= actual possession (farming,
planting, etc.). The person need not live there-i.e. they can lease the property and still meet the element.
It is not enough to just have use! Dom. + control must rise to the level of actual possession.
1. Brown v. Gobble- Actual possession via fence, gardening, land improvements.

2. Nomes v. Fagerstrom- Actual possession via cabin built on the property! And they were living there
during seasonal periods. For the southern part of property the stakes/hiking was only USE; thus, not
enough for actual possession!

ii. Open and notorious: the possessory acts must be sufficiently visible and obvious to put a reasonable
landowner on notice that her property is being occupied by a non-owner. Community testimony is
relevant that they understood this to be the actual owner. The adverse possessor need not demonstrate
that the true owner actually knew of him, rather the true owner is charged with seeing what a reasonable
inspection would disclose. Acts such as building, clearing the land, mowing the grass, parking, storage,
garbage removal, etc. have been upheld).

1. Brown v. Gobble- fence was sufficient for owner to realize this as well as community testimony. =
Constructive Notice

2. Nomes- community testimony was sufficient that they thought it was adverse possessors. Since the
property was in Alaska and rural, the true owner would have a laxed standard to meet.

3. This test is also met by understanding what a typical owner of similar property would reasonably
understand the adverse possessor’s acts to be open and notorious.. The nature of the land is also
important- a tougher standard would be applied if the property was rural or huge rather than a city.

iii. Exclusive Possession: the adverse possessor must not be sharing control of the property with the true
owner and the property must not be available to the general public. However, it is possible for 2 persons
to be in joint possession of the property. This does not mean that he must have absolute possession.
However, he can be a hospitable owner and allow others with permission to use it. Also relevant is his
ability to exclude others.

1. Brown v. Gobble- exclusive possession because he had the fence and the previous owners of the p’s
land testified that they never objected or shared it.

2. Nomes- Exclusive possession although they allowed others to use it as hospitable neighbors---all they
were doing were picking berries and were not significantly sharing w/ the property.

3. ITT v. BELL: Bell did not have exclusive possession b/c 2 other owners shared the land equally-more
than mere hospitality or a good neighbor.

4. Make sure that the true owner never excluded the AP!

iv. Continuous- does not mean that AP must use the property 24 hrs. a day, nor that they can’t leave the
property for extended periods (vacations), what matters is the NATURE OF THE PROPERTY and
dominion and control over the property for the statutory period taking into account such customs.

1. Abandonment- if it is clear the AP abandoned it, when he returns the statutory period starts over again.

2. Seasonal- if the property is such that only seasonal use is necessary (Vacation home, Nomes (Alaska)
then its still continuous.
3. Interruptions- may be caused be real land owner and third party (ouster) which may suspend the
statutory period.

4. Tacking- the continuous requirement can be transferred to the AP who may have not met the statutory
pd. Yet by means of a previous adverse possessor. The interest must be transferred through a
deed/document to establish PRIVITY. Privity exists where there is some nexus or legal r-ship b/w the
AP and previous possessor.

- Brown- AP used tacking periods of the Blevins and Fletchers for their use of the 2 ft. tract
from 1935- 1984 b/c Brown only had 9.5 years.

- Previous Adverse Possessor must not have abandoned the property!

v. Adverse or hostile (intent/state of mind element): Majority rule is that Use must be nonpermissive by
the true owner and permission will defeat the claim (Objective Test). Q of whether the true owner
permitted the use (owner’s intent towards land) and the AP must show that their use was non permissive
(AP state of mind). NO TRESPASSING SIGNS- generally good enough to show owner’s intent. General
Rule: is AP’s use is a presumption that it is non-permissive! Burden is on the true owner to show that he
gave permission (rebuttable presumption against him) Presumption that use was nonpermissive! A color
of title is compelling evidence that it was hostile and against the true owner.

1. Adverse Possessors state of mind: (3 Tests): Minority Rules w/states

- Objective test- adverse possessor’s state of mind irrelevant. All that matters is that the
possessor lacked permission and wrongfully used the land. (ITT v. BELL- no good faith,
all that mattered was that he wrongfully moored his boat on the land). Did he ACT toward
the land as if he owned it?

- Intentional Dispossession- adverse possessor must be aware that she is occupying property
owned by someone else and must INTEND to oust or dispossess (Nomes) the true owner.
BAD FAITH/Subjective.

- Good Faith: only innocent possessors-those who mistakenly occupy the property owned
by another can acquire ownership by adverse possession. I thought it was mine!

vi. Claim of Right and Color of Title: If you are bringing a claim by adverse possession that is a claim of
right to the property. On the other hand, Claim for Color of Title- an individual acquires color of title
when a written conveyance appears to pass title but does not do so: either from defective mode or
description. EFFECT: if you bring a claim of color of title for AP-you have the advantage b/c you are
entitled to the whole property in deed not just the areas you are using/occupying. In a claim of right you
only get the property you are occupying.

1. Romero v. Garcia-color of title claim----the deed was void b/c mother never signed it! The court held
that the deed’s description was relevant to describe the area of property in question and did not defeat a
claim of AP! Surveyor helpful!

2. Payment of Property Tax- admissible as evidence of dominion and control and notice to the outside

vii. Statutory Period- most states its 10 years; however, they vary w/ rules lowering this if a) there was good
faith by the AP, b) the AP had color of title.
III. TRESPASS: an unprivileged intentional intrusion on property possessed by another. The right infringed is
one’s possessory interest in the property (may be privacy, right of no interference, etc.)

a. BALANCE TEST: often the conflict is between balancing the Owner’s right to exclude and
maintain his possessory interest in his personal property VS. the non-land owner’s right to access!

b. Right to property is not absolute! However limited to privileges (law enforcement/public interest
and human values) Rights are relative and can be placed on a continuum.

c. Right to access: As a general rule, the more an owner has opened her property to the public the
more likely the court will rule that there has been a public right to access. Mall vs. Home

d. Intent: defendant must engage in a voluntary act such as walking on the property (not met if forced
on the land against ones will); mistaken entry does not relieve of intent, intent is still met! Consent
obtained by fraud or misrepresentation is not accepted.

e. Intrusion: occurs the moment the person enters the property. May be physical entry or even entry
when causing something to enter the property of another (i.e. throw a ball). May occur above or
below the surface; i.e. a person’s tree branch extending over the fence into another’s yard.

f. Privilege: 1) the entry is done w/ consent 2) entry is justified by necessity to prevent a more
serious harm to persons or property, 3) the entry is encouraged by public policy.

g. Remedies: a) damages- compensatory (only if damage to the property)-loss of market value or

cost of restoration; or nominal (just to recognize a harm has occurred), b) injunction, c) ejectment,
d) declaratory judgment.

h. State v. Schack (NJ 1971): criminal trespass; Balance the rights of the landowner/employer vs. the
migrant farm workers (not necc. Shack and tejeras). Ct. did not want to extend 1st amendment to
this case or home to public access. What is the rule (see worksheet)? Owners have no right to
exclude the invitees of non-owners to whom the owner has given permission to be on the property
+ to narrow when 1) the invitees do not substantially interfere w/ the owner’s possessory interest
in the property and 2) When the non-land owners w/ permission are receiving fundamental govt.
THAT HE MUST NOT INJURE or diminish THE RIGHTS OF OTHERS. Also what is the scope
of the invitation? i.e. would not be permissible for the non-land owner to have his sister live on the

i. Right to exclude: considered most important of all rights in property

j. There can be no implied consent in any nonfictititous sense of the term when express consent is
procured by a misrepresentation or a misleading omission

k. Desnick v. ABC: Ct. recognized no journalist privilege; noted that fraud is inherent in many
privileged entrances that have implied consent to be on the property (i.e. customer w/ no money).
Thus, what really matters is if any of the ownership interests associated w/ trespass have been
violated: here there was no interference, no threat of harm, theft, invasion of privacy. In addition,
this facility has opened themselves more out to the public! Trespass exists to protect property
interests and these were not violated. Food Lion: ct. held that ABC violated the scope of consent.
There was consent to be employees (although resumes fabricated) but this was exceeded when
they filmed

l. Parry Problem: fake resume and reporter got into Buckingham palace and filmed lives? Likely
exceeded scope of invitation as held in Desnick. Depends on what the duties of his job were.
Distinction b/w invasion of privacy/possessory interest-they are not mutually exclusive!

m. Uston v.Resort Casino: Professional card counter---Resort (right to exclude), Uston (right to
reasonable access): The Majority rule was absolute right to exclude consistent with civil rights!
N.J. however, says that the casino is opened to the public! You can do more than just gambling
there---as long as his access was reasonable (not fighting/drunk). Holding: PROPERTY OWNERS
n. State Majority Rule: absolute right to exclude w/out cause and limit reasonable access to
innkeepers and common carriers (still must be consistent with civil rights provisions)

o. Common Carrier/Innkeeper Rule: provide reasonable access but may STILL EXCLUDE for cause
(articulate a good reason-i.e. disrupt services). Policy? More likely to be monopolies than other
businesses so denial of service was tantamount to giving people ability to travel or sleep, services
here are necessities, and they hold themselves out to the public and public relies on this
representation. KEY: Can still exclude for good reason but there must be a reason!

p. Amusement/ Other Rule: Absolute right to arbitrary exclude consistent w/ state and federal
discrimination laws/Civil Rights act. Policy- don’t want to have to articulate a reason for
excluding every time-will lead to constant litigation. The market will fix any arbitrary exclusion
anyway- i.e. Widener Students who are excluded arbitrarily from a pizza place will take their
business elsewhere. MAJORITY RULE!

q. Uston extended Amusement Rule in the state of NJ to reasonable access: They must feel that
discrimination etc. is utmost importance. Could argue w/ Shack as precedence that casino doesn’t
provide fundamental services. Represent Uston argue that Shack went to all people who open
themselves to the public such as a Casino.

r. Homeless Problem: Should reasonable access be extended to homeless and retail stores? Could
adopt the reasonable access and still exclude b/c they were disrupting business (good reason) or
just arbitrarily exclude b/c person looks homeless. Retail does open themselves to public,
homeless need shelter, etc.

s. Sum of trespass cases; Shack (policy that property rights cannot infringe human rights), Desnick
(what exactly is trespass trying to protect), Uston (extending reasonable access to all places who
hold themselves open to the public).

IV. CONCURRENT ESTATES (ways in which multiple persons may own present possessory interests in the
same property: 3 versions are 1) Joint tenancy (survivorship), 2) tenancy in common (no survivorship),
and 3) tenancy by the entirety (husband and wife-survivorship)

a. Tenancy in common: each tenant in common has the right to possess the entire parcel of land
(no matter what fractional share of the property they hold. Each person has a separate or
“Undivided Interests”, fractional amount only important in how the purchase price of property is
divided when property sold (% of share). EXAM: if they don’t say its T-C, argue A) presumption
and B) look to see if shares are unequal. If they are then it has to be T-C!

b. Interests at death: when a tenant in common dies, his interest goes to his devisees under his will or
heirs if no will was established. *****NO RIGHT OF SURVIVORSHIP!

c. Unity: only one unity! All tenants have one unity of possession! Each is entitled to possession of
the whole property but may receive their interests at different times and by different conveyances.

d. Shares: Their shares do not have to be equal (Joint-equal) i.e. A may have a ¼ interest and B w/ a
¾ interest. Also A could have a ½ life estate and B w/ a ½ fee simple. Still tenants in common!

e. Presumption of Size of interest: If the conveyance does not state the size of interest of each tenant
in common, there is a presumption that the shares are EQUAL. Rebuttable by evidence that they
are unequal.

f. Presumption Favoring Tenancy in Common: If ambiguous in statute/deed- tenancy in common


g. No right of survivorship: each tenant in common takes their shares as individuals (Jt. Tenancy-all
shares a single unit): thus, each tenant has the right to make a testamentary transfer of their
interest. EXAMPLE: A + B tenants in common. A dies (no will) leaving son his interest. Title is
now ½ undivided interest to the son and a ½ undivided interest for B. If the decedent has 2
remaining children both will receive an undivided ½ interest.

h. Right to convey or lease: Tenant in common may convey his undivided interest, or lease to a third
party. If he leases it, he may have the duty to share the rents w/ his co-tenants if the co-tenant
agrees to be bound by the lease.

i. Co-Tenants do not have to notify others when they sell/convey or leave a will. Heir or conveyed just step
into tenants shoes.

i. Kresha v. Kresha (DIVORCE): T-C; father leases property to son w/out consent of wife: wife gets
whole interest in property during dissolution of marriage. Q of whether she takes interest in the
property with the son attached? Ct. upheld lease to son—said this was like an ordinary
conveyance! The father could do whatever he wanted w/ ½ interests from Tenants in Common w/
wife. She now will be T-C with son. Ct. treated as a simple transfer s/j to the lease.

j. JOINT TENANCY: Each tenant owns whole interest. All tenants have exactly the same rights,
all possess equal fractional interests, and all have rights of possession.

i. Right of survivorship: KEY DIFFFERENCE! When a jt. Tenant dies, property is immediately transferred
to the remaining joint tenant in equal shares. Ex- A,B,C joint tenants (All 1/3). If A dies her interest goes
to B and C-half to both. A has no right to make a will and devise her interest-has no effect! Advantage of
Joint tenancy= no will, automatically transfers over, no will or expense/hassle. ****Jt. Tenant who
receives survivorship interest of other receives it free and clear of the deceased tenant’s creditor.

ii. Four Unities: 4 formalities of creation to establish joint tenancy- A) interest of each tenant must be
created at the same moment in time of conveyance or means, B) All tenants must acquire jt. Tenancy by
same instrument of title (same deed/will), C) All tenants must possess = fractional undivided interests (all
½ and half life or full life) in the property that must last the same duration of time, and D) all tenants
must have the right to possess the entire parcel.

iii. Creation of Joint Tenancy: clearest way is to explicitly state “to A and B as joint tenants with right of
survivorship, and not as tenants in common” to avoid presumption of T-C.

iv. Conveyance by A to A and B: this is prohibited by common law b/c not unity of time and interest. If A
(who currently owns fee simple) wishes to convey jt. Tenancy w/ B-he would have to convey it to a
straw man C-who would then convey to A and B as J-T.

v. Severance: results in Tenancy in Common if a jt. Tenant transfers her property interest (ex- A and B = J-
T, A conveys to C: now B and C become tenants in common not J-T. Reasoning is that no unity of time.

1. Conveyance to 3 or more jt. Tenants: A conveyance by one of them to a stranger will produce a tenancy
in common b/w the stranger and the remaining original joint tenants, but the joint tenancy will continue
b/w original members.

2. Example: A,B,C J-T. A conveys interest to X (severs A and B/C). X now a T-C w/B + C w/ 1/3 interest.
B and C still J-T w/ each other. If X dies-will/ interest goes to heirs not survivorship to B or C. But B
dies, goes to C.

3. A joint tenant who wishes to destroy the right of survivorship while retaining her life interest can
convey her interest to another who conveys it back! (Straw) now will be tenants in common rather than
joint tenants.

4. An owner “may” achieve severance by “conveying” her interest from herself as a joint tenant to herself
as tenant in common w/ intent to destroy survivorship (upheld in one court).

vi. Tehet v. Boswell: (when a jt. Tenant leases his tenancy w/out consent-does it severs the joint tenancy? A
and B are joint tenants. A leases to C w/out B knowing (technically unity of interest (lease/life interest)
violated w/ time). A dies b4 lease to C expires. Ct. holds 1) lease does not function like a conveyance
ergo does not sever jt. Tenancy (A and B still jt. Tenants) 2) lease does not survive death of jt. Tenant
(lessee must leave property). Ct. reasoned that lessee should look into what property he is leasing (jt.)
and that survivorship is so fundamental of jt. Tenancy that once must express a clear intent to dissolve jt.
Tenancy before it is severed---lease was not enough!

vii. Courts split (3 rules) on whether lease destroys/severs Jt. Tenancy?

1. Lease does not sever: effect is here that survivorship remains (lessee must go)

2. Does sever: treat like a conveyance: they are now all tenants in common

3. Temporarily Sever: If lessor outlives lease, he gets reversion interest in the property back to him. If he
dies before the lease runs out they are considered tenants in common and it goes to heir: lessee stays on
the property.

- 3 Considerations as well:

i. Expectation of the lessee into account: sign a least, will this

chill people from renting? Expectation of 10 year deal! Ct.
ruled they should look into it.
ii. Expectation of lessor: does he expect to lose jt. Tenancy?

iii. Expectation of non-leasing surviving tenant: contingent upon

lessor surviving the lease---throws survivorship out the

k. TENANCY BY ENTIRETY (only occurs during marriage! Creates one person!

i. Still available in about 20 states- similar to jt. Tenancy except 1) co-owners must be legally married, 2)
property cannot be partitioned except through a divorce proceeding, 3) in most states, the individual
interest of each spouse cannot be sold, transferred, or encumbered by a mortgage w/out the consent of
the other spouse with the result that the right of survivorship cannot be destroyed by transfer of the
interest of one party! And 4) creditors cannot attach property held through tenancy by the entirety to
satisfy the separate debt of one of the spouses. CANNOT BE PARTITIONED b/c unity of time! And 1

ii. NO Severance : unlike jt. Tenancy, no way to terminate tenancy while husband and wife are both still
alive and still married

iii. Have all 4 unities: interest, title, possession, and timing: no ouster here!

iv. Cannot disinherit a spouse; only children

v. Married couples have choice to take as J-T, T-C, or T-E

vi. Presumption of T-E if husband and wife in a state that endorses T-E unless expressly states otherwise in

vii. Conveyance to Husband, wife, and a 3rd person: Rare, but if a conveyance is given to H, W, and a 3rd
party, H-W will be T-E with each other with a ½ interest and 3rd party will have the other half interest. H-
W-3 together will be T-C and if H dies W will get his part of their half interest.

viii. Indestructibility: a) not s/j to severance, b) cannot partition (but can terminate T-E with an agreement),

ix. CREDITORS INTEREST IN MARITAL DEBT: marital debt belongs to the marriage: creditors such as
banks can therefore attach a lien to this property. In J-T/T-C a creditor can attach each interest or half

x. CREDITOR INTEREST IN SEPARATE DEBT: Sawada v. Endo (Haw.): Sawada’s securing judgment
against Endo in car accident. He can’t pay and transfers house to son! He is T-E w/ wife who dies b4
Sawada’s seek to attach house. The debt is separate only to husband? Can you attach debt of one spouse
in tenancy by entirety (Choice of Law):

1. Majority Rule: Creditor cannot attach tenancy by entirety for separate debt (one spouse) w/out consent
of other non-debt spouse! Court uses this rule!

2. Minority Rule: Creditor can attach right of survivorship of debtor spouse, but cannot reach current
interest. This won’t come into play unless wife dies first, then the creditor can attach the survivorship
that goes to spouse.
3. Minority Rule 2: Creditor can attach debtor’s spouse current interest + his right of survivorship of
debtor spouse. However, won’t allow creditor to force a partition b/c break unities of interest/time etc.
But they will get proceeds from the sale of the house through partition. Here there is a cloud on the title
during the marriage. There is a current interest (not sure exactly what it is)

xi. Divorce: if the parties are divorce, T-E ends. Most states, now T-C, ergo if one spouse dies before the
other no longer a right of survivorship.


xiii. Transferability of Cotenant interests: J-T and T-C are free to transfer their interests w/out consent of their
co-owners. T-C by will (J-T can’t but interests have survivorship)

xiv. Sharing the benefits and burdens of ownership: tenant in possession has no duty to pay rent to the non
possessing tenants if he chooses to live there and they don’t (all have = right of possession). They do pay
rent if they are ousted or too small to be occupied by all co-owners (constructive ouster).

1. Co-owners have a right to share any rents paid by 3rd parties who are possessing the property or lease his
interest w/out the consent of other cotenants. Cotenants have a right to share in rents ONLY if they
agree to be bound by the lease, waiving their own right to possess the property. Rent based on shares

2. Burdens: duty to share basic expenses to keep the property (mortgage, taxes, insurance, etc w/
respective shares). NO DUTY to share costs of MAJOR IMPROVEMENTS (adding new room etc.
unless agreed)-person in possession pays but others still have = right to enjoy. Maintenance and
necessary repairs-courts split! If the share of expenses that would ordinarily be borne by the tenants out
of possession is less than the rental value belonging to the tenants out of possession, no action for
contribution may be brought.

3. Accounting: co-owners may bring a judicial procedure for accounting to require their co-owners to pay
their portion of maintenance expenses or to force owners to hand over the portion of rents from 3rd
parties in commonly held property.

- Most states person who exclusively possesses the premises pays entire burden of expenses
(taxes, repairs, mortgage)

xv. Partition: court may order the property physically divided among the co-owners. If not feasible or
appropriate, ct. will order property to be sold and the proceeds divided among co-owners in proportion to
their ownership shares (if agree themselves= voluntary partition) Partition in Kind (physical division)
Each tenant has an absolute right to partition! Judicial Partition (court) or Voluntarily (co-tenants agree to
split or sell)

1. Partition in Kind (physical): when its easy say land w/ no improvements on it, only when feasible.
Delfino v. Vealencis: partition in kind favored. Party who wants partition by sale has burden of
establishing that partition in kind is impossible or not feasible and the interests of each parties are better
promoted by the sale. TEST= 1) practicability of physically partitioning the property in question. 2)
Whether the partition in kind would promote the best interests of the parties (here the consequences of
the sale must be determined w/ the in kind).
2. Factors of Feasibility of In Kind: present use and the expected continued use by the defendant of the
property, property’s zoning classification, Plaintiff’s proposed subdivision plans, and the number of
competing owners. 2nd part need only consider the interests of both parties. In Delfino, Ct. partitioned in
Kind, but made D pay for differences in property value. Thus, if one’s house/property overlaps on
another’s physical share, ct. may require more $. The P failed to establish that in kind was not feasible
and only took into account P’s interests not D’s who had lived there his whole life and made garbage
disposal out of it.

xvi. Olivas v. Olivas (N.M. Ct. Appeals 1989): TENANCY IN COMMON: husband tries to bring argument
that wife constructively ousted him as a tenant in common of their home. He moved out (says due to the
breakdown of marriage after divorce, it would be impractical/impossible to live w/ ex wife). Thus, he
argues he shall be entitled to half rental value of home as co-tenant b/c she has exclusive possession and
has ousted him. Ct. said that husband ABANDONED right of co-possession and he was not
constructively ousted (but he had a girlfriend and chose to move out) thus a special exception applies to
divorces. Ct. could either treat it like any other tenants in common or create the constructive ouster
problem w/ divorce.

1. Problem p. 579:battery case: husband will argue that he hasn’t ousted her b/c he asked her to come
back, she will argue constructive ouster b/c impractical to live with him. If wife threw out husband, he
will argue ouster and demand $, she will argue he abandoned his right of possession by hitting her
(special exception) argument. ESSENTIALLY: tenant in possession must give notice/ intent and out of
possession tenant must have knowledge of this and demand possession!

xvii. Ouster: if the occupying tenant refuses to permit the other tenant equal occupancy, then he must account
his co-tenant for the latter’s share of the fair rental value of the property. Ouster occurs when a) out of
possession tenant physically attempts to occupy the premises, and b) the occupying tenant refuses to
allow this access by some physical or affirmative action (says no, changes locks, etc.) words, or acts
inconsistent with co-possession (locks). Key: no rent is owed if out of possession tenant just doesn’t
want to live there (they all have = right to live there-only if physically ousted from the premises).
APPLIES both to Joint Tenancy and Tenancy in Common.

xviii. Constructive Ouster: out of possession person is ousted by reasons such as it was impractical or
impossible to live there. Ex- State has zoning requirement that only 4 people can live in a certain home
but there are 10 co-tenants in common. The other 6 people are constructively ousted and should receive
their rental shares. Marriages as in Olivas are another example.

xix. Adverse Possession and Ouster: Rare: one cotenant cannot obtain adverse possession against another
unless the possessing tenant makes clear to the non possessory tenant that he is asserting full ownership
rights in the property to the exclusion of other cotenants. Cts. Will require some affirmative act where the
non possessory tenant is on notice that a co-owner is adversely possessing (may occur by ousting the
person-changing locks). Troubling thing is that each co-tenant has possession thus no trespass!

xx. Carr v. Deking (establishes no consent to lease): Co-tenants in common were allowed to lawfully lease
property interest w/out the consent of the other co-tenant. Other co-tenant could not object; he could
either be bound by the lease and receive his fair share of the rent or choose the drastic remedy of
partitioning the land. All 3 become tenants in common! Up to tenants to K for notice! A-B-C

xxi. Advice Column: Co-tenants in common (presumption): 50/50 interests. Kim will argue constructive
ouster (couple=uncomfortable) but likely will not meet clear and convincing standard. He will argue do
what I want (= possessory interest). K-right to exclude, she has no legal right as an invitee. Either she
partitions (harsh) bad housing market may be better off to work it out yourselves. Courts encourage
working it out alone.


1. During the Marriage: spouses own their property separately; except to the extent they choose to share
it as J-T,T-E, T-C. Each spouse owns whatever they possessed before the marriage (house, car, bank
account) AND IS individually LIABLE for prior debt. Creditors cannot go after a spouse’s property to
satisfy a debt individually undertaken by the other spouse. Property owned after the marriage is also
owned separately: Spouses still have a legal duty to support each other and this may require (in equity)
to share certain property during the marriage.

2. On Divorce: Marital Property created but SEPARATE WHEN YOU’RE MARRIED! Marital property
only exists when you divorce. All property acquired during the marriage by either or both spouses is
thrown into the pot and through equitable distribution, the court reaches into pot of marital property and
distributes to ex-spouses. Discretionary: need (support/child), status (maintaining the lifestyle during the
marriage), rehabilitation (support sufficient to allow one spouse to attain skills that no longer need
support), contribution (labor/investment /economic partnership), and sometimes fault. Other factors
such as contribution and opportunity cost as a home-maker also are into account.

3. On Death: A spouse may dispose by will. Many states provide for a statutory forced share of the
decedent’s estate, effectively allowing the widow or widower to override the will and receive a stated
portion (1/3-1/2) of deceased spouse’s estate. No obligation to leave separately owned property. When
no will, a spouse’s separate property is inherited according to state’s intestacy statute. Some states will
give all to spouse, others to children and spouse.

4. O’Brien v. O’Brien: Professional license (minority rule-N.Y.) considered marital property for equitable
distribution during at divorce. The spouse was a stay at home mom but forgone substantial opportunity
cost so he could pursue his degree + contributed to his degree w/ loan.

l. FREEHOLD ESTATES estate = label for nature and extent of property (duration and what
rights) a) fee simple (absolute/Defeasible), b) fee tail, and c) life estate

i. Non-Freehold estates: Leaseholds subject to a term of years. Ex: O to A for 25 years. O has a reversion
in fee simple absolute and a has a present possessory interest.

ii. Rule against creation of new estates: no new estate must be created apart from these 3 categories. Courts
will interpret an ambiguous conveyance to be one of the above.

iii. Conveyance language: O to A for life: O to A is words of purchase: indicating who owns the property;
words of limitation is for life- describing the kind of estate.

iv. Dead Hand Control Policy: owner of property wants to control property even @ death by conditioning
aspects of life (disfavored) i.e. O to A if he goes to law school. Courts have the ability to cancel certain
conditions against policy. Social Hierarchy: courts disfavor concentrating land in too few people (i.e. in
the blood line) as restraints on alienation. Policy for the free transfer of property as a modern commodity.

v. FEE SIMPLE: (ABSOLUTE): is the best type of property, most unrestricted estate and longest
duration is of an infinite duration. NO future interest. Owner of a fee simple has the present right to
possess and use the property, the right to sell it or give it away, and the right to devise it by will or leave
to heirs. It’s inheritable through heirs, intestacy statute, or through will. POTENTIAL OF INFINITY.

Presumption for Fee Simple: owners are presumed to convey all the interests
they own in the property unless the conveyance states otherwise. If the seller
fails to state a future interest, the court presume that the grantee gets fee absolute

1. Language for fee simple absolute: a- O to A, b- O to A and her heirs, c- O to A in fee simple. A and his
heirs is technical only indicating fee simple; thus, A’s heirs do not have any interest. O no longer has
interests in Fee Simple absolute.

- Interests: O to A: O no longer has an interest. A has a fee simple absolute. If A dies,

property will go to heirs or through will. A can do whatever he wants with property: sell,
leave in will etc. No future int.

vi. FEE SIMPLE DEFEASIBLE: (potentially infinite w/ strings attached)- fees held until the happening of
a stated event or a condition. Present interest that terminate at the happening of the event (NOT THE
DEATH-that is a life estate) =Defeasible fee. 2 categories:

1. Future interest in the grantor: 2 kinds here-O has the future interest

- Fee Simple determinable- usually to prevent a certain use of property

i. Language: O to A so long as X. O to A while used for X. O to

A during X. O to A unless used for X. O to A so long as X, if
Y, then automatically revert to O. All = determinable fees.

ii. Interests: O will have a possibility of reverter interest as a

future interest. If O dies, it will revert back to his heirs. O or
heirs will then have it in fee simple absolute. Thus, if the
condition is met/violated; the property will revert back to O,
the original owner. A has a present interest called fee simple
determinable; which depends on the condition.

iii. KEY W/DETERMINABLE: the property automatically

transfers back to O upon condition!

iv. If A sells the property to B, the condition carries with him and
he must follow it or else automatically revert back to O.

- Fee Simple subject to a condition subsequent

i. Language: O to A on condition that property used for X; in the

event not, O shall have right of entry. O to A, but if used for
X, O shall have right of entry. O to A, provided that property
is used for X, if violated, O has right of entry. Key for
language is that the W.O.L. must state right of entry.

ii. Interests: O will have a future interest that is called a right of

entry in which once the condition is met, he will have to
exercise his right to possess the property; does not
automatically transfer. Once he exercises this right or his heirs
exercise the right (if he’s dead) they have fee absolute. A has a
fee simple subject to a condition subsequent as their present

- Courts favor condition subsequent: they dislike forfeitures, particular automatic ones in fee
simple determinable. Rather take the chance to have the right of entry. Thus, if real doubt,
ct. interprets as s/j con-sub. Some courts enforce this also by allowing a reasonable time to
claim right of entry and require major deviations from conditions not minor.

- Majority rule for future interests: they are alienable: thus, if O does not have a present
possessory interest in the property but a current future interest in the property; he can
devise/sell/transfer, etc. this future interest.

- Effect of Adverse Possession: fee simple determinable- @ CL, the clock of S.O.L. runs
automatically when condition is met. With fee simple s/j to condition subsequent, O must
exercise his right b4 the clock starts running. Modern Law- treat the same in terms of
statute of limitations; thus, clock runs for both at the time the condition is met! The
problem is you must still show the possession was adverse!

2. When the future interest belongs to a third party

- Does not belong to the grantor but a third party. The present interest is called a fee simple
s/j to executory limitation and the future interest is called an executory interest. The same
rules as above except they automatically shifts to a third party rather than reverting back to

- Language: O to A so long as used for residential purposes, then to B. Here, A has the
present fee simple s/j to executory limitation and B has a future executory interest. If the
condition is met/violated it will transfer to B—here O no longer has a future interest

- KEY: property goes to a third party and not the grantor!

- Common Example: “to A and his heirs, but if A dies w/out children surviving him then to
B and his heirs”.

- Key: Must refer to the definite failure of issue: i.e. example above- its specific if A dies
w/no heirs, we don’t want this to run forever—then it will be fee tail.

vii. FEE TAIL: estate whose purpose is to keep the property within the family dynasty. Language is “O to A
and the heirs of his body”. A has a life interest but when A dies the property transfers to A’s heirs and his
bloodline only. This applies only to A’s lineal descendants until the bloodline runs out, at which the
property will revert back to O or O’s heirs.

1. Every fee tail is followed by either a reversion or a remainder to take effect when the bloodline runs out.

2. Modern Fee Tail: Completely dead in the U.S. A few states still recognize it as a fee simple absolute.
Other states treat it as a life estate in the present owner with a remainder in fee simple in her heirs. Thus,
you cannot create a fee tail.
3. Example (if jd. Recognizes it) O to A and the heirs of his body, but if A dies without issue, to B and his
heirs”. If A has a daughter C, who predeceases A, what interests? Here the bloodline ends with a
daughter, so the remainder B will have the fee simple absolute.

viii. LIFE ESTATES: estate lasts for the lifetime of the person and the future interest can either be in the
grantor or a 3rd party. If the property goes back to the grantor when A dies the future interest is called a
reversion; if the grantor designates a 3rd person, property to obtain ownership when A dies; the future interest
is a remainder.

1. Difference b/w Life estate and Fee simple: owner of a fee simple can choose who will own the property
after her death by a will/intestacy statute vs. a life estate owner who has no right to determine who owns
the property on her death since ownership automatically transfers to reversion/remainder holder.

2. Language: Most typical is: O to A for Life. Here, A has a present life interest in the estate until death
where, O or heirs will have the future reversion interest.

- Life estate for the life of another: If A is a life estate owner, he can sell to B, but B takes
the estate for the life of A. Thus, when A dies, the interest will shift to B (remainder) or
back to O (reversion) only if B dies before A and O. Ex: O to A for the life of B. A has it
until B dies. Thus, A will want B to live. B has no interest whatsoever (measure).

- Estate for Joint lives: “O to A and B for the lives of A and B” ends when the first of A or
B dies or the last of A or B dies (grantors choice)

- Other language: to A until he dies, to A during his life.

- O to A for life, then to B: creates a life estate in A, with a remainder in B.

- Example: O to A so long as he cares for me during my life: A’s interest is tied to O’s life
so it’s a life estate. Its measured by A’s life.

Future interests also follow life estates-that may either vest in the grantor (reversion) or

3rd party (remainder).

A. REMAINDERS (2 KINDS) ALWAYS following life estates:

a. Contingent Remainders: if 1) the remainder will take effect only upon the happening of an
event that is not certain to happen; or (2) if the remainder will go to a person who cannot be
ascertained at the time of conveyance.

i. Example: O to A for life, then to B if B has graduated from law school. At

time of the conveyance we don’t know if B will graduate from law school.
If B does not, then the property will revert to O on A’s death; if B later
graduates, the property will then spring to B. At the point when A dies and
it reverts back to O to hold on to, O has a fee simple subject to an executory
interest (present possessory interest) and B has an executory limitation.

ii. Example: O to A for life, then to the children of B- B’s children have a
contingent remainder-if B has no children by the time A dies, these children
cannot be identified individually at the time of O to A.
iii. Example: O to A for life, then to the heirs of B- @ the time of conveyance it
is impossible to tell who B’s heirs will B until B dies and only persons alive
at B’s death can inherit.

b. Vested Remainders: remainders to identifiable persons at the time of the initial conveyance
and where there are no conditions occurring b4 they have the right to the property at the
death. (3 Kinds).

i. Absolutely Vested Remainders: Not subject to change

ii. Vested Remainders Subject to Open: Divide between a class of person to be

born or ascertained in the future. Ex- O to A for life then to children of B. If
B has any living children at time of conveyance, its s/j to open b/c children
will own property jointly and share it. B has no children at the time then it’s
a contingent remainder.

iii. Vested remainders s/j to divestment: Vested remainder that may be

destroyed by an event that occurs after the original conveyance. Ex- O to A
for life, then to B, but if B has flunked out of law school, the property shall
revert to O::::B has a vested remainder (B is known @ conveyance and no
conditions b4 B takes property) but s/j to divestment—if b then flunks out-
he will lose right to obtain property on the death of A.

iv. ****Difference b/w vested and contingent: see these examples: 1) O to A

for life, then to B if she survives A, otherwise to C. (Contingent) why? b/c
the language then to if: creates a condition b4 B can have the property vs. O
to A for life, then to B, but if B does not survive A, then to c (Vested) why?
b/c the language , but if: says that B first gets the property than must meet

c. Destructibility of Contingent Remainders: Two ways:

i. If they did not vest before the preceding life estate ended. O to A for life,
then to B if she has been elected president of the US. B has a contingent
remainder. The c-r is destroyed if B is not president before the death of A.
Effect: property would now revert to O as fee simple s/j to executory
limitation w/ an executory interest in B that would vest and become
possessory if B ever were elected president.


1. Key is looking at the grantor’s intent. Courts will attempt to interpret and fit the grantor’s intent with the
appropriate estate if possible. Consistent with presumptions, rules against alienation restrictions, and
rule against creation of new estates. 1) What is the language (WOP/WOL)? 2) is it ambiguous? Look for
language terms and if it fits then that’s it, otherwise 3) take into account presumptions.

2. Rule against unreasonable restraint of marriage: cannot condition property unreasonably related to any
form of marriage
3. Woods v. Board of County Commissioner: Language: “for the purpose of constructing and maintaining
thereon a hospital in memorial of the armed forces”. P argued a) fee simple determinable or b) fee
simple s/j condition subsequent: Ct. ruled this was only Precatory language (meaning nothing, only
hopes) Ct. also said no intent to have future interest or express condition-----the present interest needs to
know and understand the condition so they can abide by it if you’re not using the traditional language.
RULE: Fee simple absolute: ct. follows the presumption against forfeitures.

4. Cathedral v. Garden City: “for the use of church…but w/out any power/right to sell, convey, mortgage
and not to be used or occupied for any other purposes than connected w/church/education”. Possible
interpretations: fee s/j to condition subsequent or determinable. Ct. rule that there was conditional
language to show condition subsequent. BUT: rare case, since the conveyance was 100 years ago where
you were not allowed transferring a right of entry, they voided the condition. Ct. likely favored
condition subsequent over determinable (not automatic) and b/c it was a charity.

5. Ex: “I give my house and lot to you for your residence. Don’t sell it. Let your sister have the rest of my
property: Issues: 1) for your residence= life estate (dead people don’t own homes), 2) don’t sell it:
negates fee simple absolute b/c restriction on alienability, 3) mere precatory language, 4) unreasonable
restraint? , 5) rest of my property= future interest? , 6) fee simple presumption likely controls.

6. Precatory Example: O to A it being my wish and purpose in making this conveyance that the property
be used for residential purposes: A has fee simple absolute: additional language is precatory only
showing desire; unenforceable.


- Presumption against forfeitures: giving the property away from the current owner in
possession. Fee Simple over anything else!

- Future interest vs. Precatory Language: the presumption is to still recognize a fee simple
absolute with no future interests. General Rule is well settled that the mere expression that
property is to be used for a particular purpose will not in and of itself suffice to turn a fee
simple into a determinable fee.

- Covenant vs. future interest: presumption against future interest and in favor of the
covenant b/c it will keep title with the owner.

- Fee Simple determinable vs. fee simple s/j to condition subsequent: condition subsequent
is preferred b/c the current interest is not automatically forfeited, thereby for the time
being, keeping w/ current owner.

- Life estate and fee simple: fee simple preferred unless it will justify the grantor’s intent to
effectuate an enforceable restraint on alienation

- Edwards v. Bradley: Court refused to adopt will as a restraint on alienation (condition not
to sell) for a fee simple absolute and instead said the grantor’s intent was to create a valid
restraint on alienation and the only way to achieve that result was to interpret the
conveyance as a life estate with a remainder to the 6 children (All receive 1/6 shares of T-
C). RULE: Cannot put a restraint on alienation for a fee simple but CAN for a life estate.
Court said life estate was implied from language + attorney drafted will and would have
said fee simple if wanted to, mentioned it 7 X before in will.
- Policies: promotes interests of current owners in controlling property

- Purpose Language: usually when a conveyance explains the purpose of the transfer
(wood), the majority of courts agrees and will hold the language to be precatory-not
intended to have any legal significance.

- Charitable Purposes: Some courts will find a future interest when the property is donated
for charitable purposes. They might not apply presumption against forfeitures in these
situations (Cathedral).

8. Rule Against Creation of New Estates: Goal: promote a market system involving wide dispersal of
property rights to prevent local monopolies. Grantors must pick their conveyances in one of the
recognizable estates to have the force of law. Abolition of the fee tail: perpetual series of life estates will
not be honored. Johnson v. Whiton: will to granddaughter and heirs on her father’s side and to my other
grandchildren the remainder: Ct. said this is a new estate (doesn’t fit category) Thus, held fee simple
absolute (the presumption).

9. Rule against Restraint on Alienation: Hankins v. Matthews: will said nephew will keep the property
for 10 years b4 he can sell/transfer it and if he violated it, it shall revert to heirs of O. Although it was
clear that there was a future interest created (not sell w/in 10 years) the court rules that this is a fee and
by definition a fee is freely alienable; thus, such a condition would be repugnant to the fee. Ct. not
saying you cannot have a Defeasible fee, but condition can’t be one that violates the rule against
restricting alienation.

10. Minority Rule of not unreasonable restraint on alienation: the minority of states may apply the rule
that a 10 year or temporary restraint on alienation may be for a valid purpose and thus not unreasonable.

11. White v. Brown: “I wish Evelyn to have my home to live in and not be sold”. Once again repugnant to
the fee. This is a fee w/ a condition involving a restraint on alienation; despite grantor’s intent of a
future interest (condition) ct. uses policy of repugnant to fee and rule against restriction of alienation.


1. Policy: limit dead hand control, promote the free transfer of property in the marketplace by limiting the
creation of future interests

2. RULE: 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 creation of the interest.

3. Step One: Identify the future interests and the estate. Why? Some applicable some not. Ex: O-A, then
to B if B graduates law school (YES: B=contingent)

- Interests not applicable to the Rule:

i. Possibility of Reverter

ii. Right of Entry

iii. Reversion

iv. Absolutely Vested Remainder

v. Vested remainder subject to divestment

- Interests that are subject to the Rule:

i. Executory Interest

ii. Contingent Remainders

iii. Vested Remainder subject to open.

4. Step Two: If the future interest applies, determine if the interest in question is valid by applying the
rule. You must determine if there is any possibility at all that the interest will vest more than 21 years
after the death of any person alive at the creation of the estate! Perpetuity Period: time between the
creation of interest and 21 years after the last person alive at the creation of the interest. Creation of the
interest= by conveyance, if will when testator dies, if trust when signed. Vest= moment when
contingency occurs or when future interest becomes possessory. For a contingent remainder, the vesting
period is the moment when the contingency disappears, regardless of whether the remainder becomes
possessory at the moment. I.E when B graduates law school= vest, although he doesn’t have possession
until A dies. Few steps here:

- Who are the lives of being: (Ex above): O, A, B . Thus, must determine if the interest may
vest 21 years after O, A, or B dies.

- Is there a validating life? Person whose lifetime the interest is certain to vest: (ex above=
B, B is certain to be alive when it vests in order to graduate law school).

- Is there any possibility that the future interest will vest 21 years after the last person
(O, A, or B) dies?

- Ex 1: O-A for life, then to B if B finishes law school: 1- it applies (B has contingent
remainder), 2- L.O.B? (O, A, B), 3-validating life- B: vesting occurs when B graduates
law school ergo there is no possibility that it will vest after O-A-B are dead. Thus, future
interest good!

- Ex 2: O-A, but if used for commercial purposes then to B. 1- Yes (B=executory interest),
2- (O, A, B), 3- B’s interest can vest >21 yrs. After everyone dies b/c A’s heirs can build a
WaWa 300yrs. Later and then it will vest to B (the validating life).

- Ex 3: O-A for life, then to B if B attains 20 years old: 1) B (contingent), 2) O-A-B, 3) B=

Validating life- when it vests B must turn 20 so it is impossible that everyone will be dead
when it vests. KEY: Doesn’t matter if it actually vests 20 or even 45 years later (i.e. if B
attains 45) all that matters is 21 years after they are all dead.

- Ex 4: O-A for life, then to 1st child of B to be elected president: 1-B (contingent), 2-O/A/B,
3-There is a possibility b/c if everyone dies, B’s children can still become president 21 +
years later.
5. Step Three: determine what interests remain by striking out the invalid interest and seeing what
is left

- O to A for residential purposes, the n to B (Executory): There is a possibility that A’s heirs
could use it forever b4 vesting with B. Thus, strike out then to B and leave O-A for
residential purposes which now leaves you with a fee simple determinable in A w/
possibility of reverter in O which are both OK under the rule.

- O to A, but if the property is not used for residential purposes, then to B. Here B has
(executory), when you strike out; you’re left with a new estate (rule against creation of
new estates) thus, only left with O to A!

- Way around this? O to A so long as not used for commercial purposes. O has possibility of
reverter here. O can convey this to B, who would not have O’s future interest without
being s/ to R.O.P.

6. Options to Purchase and Preemptive Rights (first refusal)

- Traditionally seen as executory interests subject to R.A.P

- Although most K w/ options and first refusals usually violate R.A.P. on their face, Cts.
Will look at the face of the K and decide if it is consistent with the policies against the

- Options to Purchase: person holding the K right can force a sell whenever within the terms
of the K. Therefore this is a restraint on alienation. Generally courts will not enforce the
option as void with R.A.P. if a) it has a fixed price and b) not enforced w/in a reasonable
time. Also, generally invalid if have no fixed duration.

- Texaco: seemed to create a rule that option to purchase for long term commercial lease K
are valid per se under the R.A.P. as long as they are exercised within the terms of the lease
(not infinite duration).

- Septa Case: option to purchase any land it wanted to use for public transportation. The
court exempted it from R.A.P because it would benefit the public.

- Charity exception: when a conveyance is made for charitable purposes, future interests
following the present estate are generally held to be immune from the rule against
perpetuities if the holder of the future interest is also a charity.

- Shivers v. Benton: 12 T-C who contracted to have a right of first refusal to each other.
Right of first refusal: treated as a preemptive right that is not an unlawful restraint on
alienation when the right of first refusal is conditioned on meeting the terms of a 3rd party
offer. Since the holder of the preemption right must meet the offer of whatever is on the
market, there is little clog on alienability; however, if he had to meet a fixed price in the K
it may violate alienation. Thus, K creates an additional future interest in T-C. 1) Not a
direct restraint on alienation (goes to other co-tenants) doesn’t violate the policy of
alienation (Consistent with open market), 2) Doesn’t violate R.A.P.: although it applies
(treated as an executory interest), doesn’t violate polices against R.A.P; person still
incentive to improve the land (open market bidder not just fixed price) + preemptive right
was enforced within a reasonable time.
- Policy factors: 1) impede alienability? 2) Fixed Price, 3) Unlimited duration outside
lease terms ? 4) Not for charitable purpose? 5) Exercised within a reasonable time?
6) Encourage Improvements on the property? 7) Dead Hand Control? 8) Does the
current holder of the property at least keep some share (shiver still had 1/3)

xi. WASTE (cause of action for future interest holders: present holder quasi-trustee with a fiduciary
relationship with future holder) ONLY WITH LIFE ESTATES!

1. The life tenant has a duty to keep the property s/j to repair and preserve the property to prevent waste or
decay. The law imposes an obligation on the tenant to return the premises to the landlord at the end of
the term unimpaired by negligence of the life tenant. Does not include ordinary depreciation due to age
or normal use over a short time. (similar to neglect/misconduct)

2. Usually concerns remaindermen or reversioners.

3. Damages: Compensatory damages ($), injunction, or receivership.

4. Fee Holder owes no duty to future interest holder (O).

5. 3 Kinds of waste:

- Voluntary: intentional or affirmative destructive act to the property

- Permissive: Omit acts, neglect, failure to exercise the normal care to the property that a
reasonable prudent person would.

- Ameliorating: A changes the land to increase it for the better but B doesn’t like it.
Example: dwelling on the land where current owner puts up a building and knocks down
the home. B comes and says I wanted the house. A increases property’s value.
i. Exception: the life tenant is allowed to make fundamental
changes in the property if a complete and permanent change of
surrounding conditions has occurred that has deprived the
property of its value and usefulness as previously used. Here
there was commercial development (increased value of land).
6. Moore v. Phillips: Will gives daughter life estate with remainder to nephews. They are future interest
holders so she leased it to them for a few years (only way for them to get current possessory interest). D
too old to repair house so remainders so waste under laches (waited too long to sue now it disadvantages
them (but does not violate S.O.L.) Ct. ruled that laches didn’t apply b/c it was better to sue old lady
when dead (health).
7. Racial Conditions: Cannot enforce unconstitutional or illegal conditions on property. I.E. O to A for a
park so long as used by whites. Although it was once legal when the condition was made, courts cannot
enforce it ergo invalid. May hold on an unreasonable restraint as well. Ct. will likely make fee absolute.
1. Restraints on marriage can be valid as long as they are not reasonable. Usually, if the dominant motive
of the transferor is to provide support until marriage, the restraint is normally valid.
2. Re-Marriage: Restraints on re-marriage only valid if : 1) the transferee was the spouse of the transferor
or 2) the restraint is reasonable in all circumstances.
3. Shelley v. Kraemer: restriction on marrying only to a Jewish Girl: the court upheld the condition
indicating that it was not a total restriction but only partial. It would have been void if it was a total
restriction on marriage. He could still marry the Girl and not get the property.
4. KEY FACTOR: partial or total restriction?
5. Lewis v. Searles: ct. held that the dominant motive under all the circumstances was only that she was
taking care of the property while she wasn’t married so restriction against marriage was valid. Also, not
total restriction and she was still entitled to a remainder 1/3 interest.
1. Include 1) Tenancy for years, 2) Periodic Tenancy, 3) Tenancy at will, and 4) Tenancy at sufferance.
2. Landlord agrees to transfer possession of property for a specified period of time in return for a payment;
when the tenancy is over the LL has an automatic REVERSION interest.
3. Sources of governance: Mostly local ordinances and a creature of state law: Federal Law includes Fair
housing act, etc.
a. Procedural Regulations: impose formal requirements for creating the LL-Tenant
relationship as well as procedures for terminating the r-ship (usually notice and court
eviction proceeding)
b. Substantive Regulations: define parties’ obligations to each other: housing codes,
lead based paint, etc. Quiet enjoyment, who cleans, security deposit, What’s a breach
of agreement, etc.
4. Residential and Commercial Tenancies: Residential- renting for the purposes of establishing a home
where Commercial involve any nonresidential use such as business or nonprofit use (church, institution,
hospital, etc.). Major difference: courts are more inclined to adopt common law rules regulating the
terms of residential leases than of commercial leases, on the assumption that commercial tenants are
more likely to have sufficient bargaining power and expertise to shape the K agreement in their best
5. TERM OF YEARS TENANCY: lasts for a specified period of time determined by the parties for any
length (week/month/year). There is a definite beginning and end here!
a. Ends automatically at agreed upon time (no additional notice required), but may be
terminated before the end of the fixed period of the happening of some event or
condition in the lease.
b. Future interest is retained by the landlord (REVERSION), the owner may provide
that the property shifts to a third party after the lease who then has a REMAINDER.
c. The landlord is not entitled to evict the tenant before the end of the term. The only
exception occurs when the tenant is breaching a material term of the lease. (rent).
d. Example: A lease b/w T and L is to last “so long as T continues to use it for sawmill
purposes” this is not a Term of years: why? Term was not certain!
6. PERIODIC TENANCY: renew automatically at specified periods unless either the landlord or the
tenant chooses to end the relationship. Month to month, UNDEFINITE!
a. They renew automatically at the end of each month if neither party notifies the other
that he intends to end the relationship.
b. Notice is required before either party can terminate the relationship and end the
periodic tenancy. (Most states require a month’s notice- Notice must be = to at least
how long the period is: i.e. Month lease then notice is a month before termination).
c. Death by tenant or LL does not terminate the tenancy. Heirs/devisees come into play.
d. Examples: year to year, month to month, week to week. KEY: while a tenancy for
years automatically expires when it reaches the end of its stated term, the periodic
tenancy continues indefinitely, until terminated by one of the parties by proper
e. Creation: can e by express agreement (month to month) OR Implicitly
f. Implicit Holdover: when a tenant holds over at the end of a lease. The Landlord has
the choice of either evicting the tenant or permitting him to stay.
7. TENANCY AT WILL: terminable at any time by either party ( NO NOTICE)
a. Many states have abolished it (dislike no notice) traditionally death of a tenant or LL
would terminate the lease as well.
b. No stated duration, can be created expressly (both agree that they want it terminable
@ any time) or by implication: i.e. take tenancy under a void lease.
c. Most courts also hold that assignment of the tenant’s interest to someone else will
also terminate the lease.
a. Only exists in the limited situation when a tenant rightfully in possession wrongfully
stays after the leasehold has terminated (holdover). Distinguished from a trespasser
who never once had rightful possession.
b. **Legal procedures for ejecting trespassers differ significantly than holdover tenants.
If the tenant is a trespasser the LL may be able to use self-help (kick him off-throw
his stuff out of the house physically or have cops do it) BUT if he is a holdover the
tenant may have more rights (summary court or eviction proceedings).
c. A landlord who accepts rent from a holdover tenant may be held to have agreed to a
new tenancy calculated by the rental payment schedule.
9. Statute of Frauds: Creature of state law. Requires that interests in REAL property be in writing to be
enforceable. Most states require that leases > than one year be in writing or else invalid/void. However,
leases of one year or less may still be enforceable whether written or oral. ORAL= enforceable so long
as the period is < 1 year; month to month satisfy this condition b/c the relevant period is one month and
less than a year.
10. SELF HELP VS. JUDICIAL PROCESS: Who is a tenant? Possession is KEY!
a. Owners have the right to use self-help to eject a trespasser but must initiate eviction
proceedings to dispossess a tenant: thus, huge Q is who is a tenant? Tenants different
from licensees: licensees only have limited permission to enter not possession
b. Vasquez v. Glassboro (N.J.): Good Cause Statute: “LL conditioned the tenancy upon
and in consideration for the tenant’s employment by the LL as superintendant or
janitor or in some other capacity and such employment is being terminated”. LL
removed Vasquez (migrant farm worker) w/ no place to go and out of their barracks.
Q of was his employment relationship and use of the barracks sufficient enough to
sustain a LL-tenant re-ship?
c. Factors to determine LL-Tenant relationship:
- Payment of rent
- Other consideration for living there (employment)
- Privacy
- Control over the property
- Type of occupancy? Intermittent, there all the time
d. Court looked at these factors and concluded that he was not a tenant (only there
intermittently, w/out family, no rent (only service), little control and privacy over the
property (shared everything and lived in barracks). HOWEVER, NJ said out of
fairness and equity ( along with national concern of migrant farm workers) the
discussion doesn’t end there, REASONABLE NOTICE IS STILL REQUIRED!
Ruled in K of equity that employee did not have bargaining power (no English) and
K was unconsciable.
e. VASQUEZ 2 STEP ANALYSIS: 1) Apply the factors to see if there is a LL =
Tenant R-ship, 2) If yes then owed summary process or eviction procedure and not
self help. BUT, if not a tenant must then look to POLICY: would it be reasonable to
require reasonable notice before eviction? Look at circumstances. If no: Self Help! If
yes: then give reasonable notice before they can find a home and move out!
- Statute of Frauds (over 1 year then in writing)
- Make clear and unambiguous
- Is it a residential lease or commercial?
- What type of tenancy is it ? Expressed or implied?
- What’s required under state, local, and federal law?
- Who are the parties and signatures? (both tenants sign or other bound)
- Specifics of the premises: Unit #? , Floor? Survey
- Rent and additional charges? What outcomes?
- Length of the lease term? (Some judges say min. 2 years)
- Restrictions on use? Residential purposes only?
- Responsibilities of the parties? Who cleans, mows, repairs, improvements?
- Tenant’s right to transfer or sublet?
- Parties rights in case of default? (can’t pay , move in on time)
12. CHOICE OF TENANT? What are you governed by? (state/federal/local statue)
a. Old Common Law: LL had absolute right to choose tenant: arbitrary or unreasonable
Lead to shortage of housing.
b. Fair Housing Act: 42 U.S.C. 3601-3631: it is the policy of the United States to provide, within the
constitutional limitations, for fair housing throughout the United States. Makes it unlawful to
discriminate in (the refusal to sell or rent or refusal to negotiate…..or to discriminate against in terms,
or conditions, or privileges, or services…..and reasonable modifications (only handicapped)
BECAUSE OF: race, color, religion, sex, familial status (under 18 with a child), or national origin.
What’s not covered: Age, Sexual orientation, occupational status, marital status, etc FEDERAL!
c. Exemptions: LL operating 4 units or less or if you r living in the dwelling yourself or own fewer than
4 single family homes: directed to those in the Business of selling! Also churches and private clubs.
Old Age home over 55 allowed to as well.
d. Asbury v. Brougham: Apt. complex owner refused to sell to black lady. 1) Must prove discriminatory
intent: How do you do it
- P asserting discrimination must est. prima facie case: a) member of racial minority, b)
applied for and was qualified, c) denied the opportunity, and d) housing opportunity
remained available.
- If met, burden shifts to D to come up with a non-discriminatory reason why they
refused to sell (no vacancy, certain policies, etc.)
- If met, burden shifts back to P to show reasons were pretext (can show through
testimony, evidence, other cases, etc.)
e. Punitive damages: to punish or deter: relevant here because employer’s policy which he adopted.
f. Other issues of discrimination? STATES CONTROL: Housing with children (may be a non-
discriminatory reason not to (violent area, too loud, dangerous, etc.), Students? (party too much, not
responsible, etc) Counter arg: daycares, parents, credit checks, references, state conditions in lease.
Economic Status (WSH), Occupational Status (NY-lawyers).
g. McCready v. Hofious: “Marital Status” court interpreted marital status as protecting against
discrimination from those who are married as well as not-married. Key here is to understand how
states may extend protections to areas such as marital status (but its not covered in the Federal Act):
Ct. also said not a total restriction of religion; and the private/ public interest overrode (constitutional
arg. Not on exam)
a. Landlords right to receive rent: landlord’s 3 main rights to the tenant are 1) the right to receive the
agreed-upon rent, 2) the right to have the premises intact and not damaged, s/j to the normal wear
and tear; and 3) landlord has a reversion, or the right to regain possession at the end of the lease
term (or w/ notice if periodic tenancy).
b. What is rent: compensation for use, possession, and enjoyment of the property.
c. LL REMEDIES: when tenant breaches and refuses to leave (summary process).
- Possession and Back rent: if the T wrongfully stops paying rent or breaches other
material terms in the lease and continues to occupy, the LL may sue for back rent (already
due but unpaid) and for possession (to evict T and re-rent).
- Holdover tenant and the renewal of the tenancy (When tenant STAYS after lease):
1. T continues to pay rent and LL accepts: can be treated as accepting a new tenancy; either a
periodic tenancy (MAJ) (renew the month period). Minority say term of years. The LL can
combat this by accepting with explicitly writing/stating that this is not a new tenancy or write it
on the back of the rent check.
2. Tenant refuses to accept and wants to regain possession:
a. Self Help (minority rule) physically removing the tenant is usually not allowed; even peaceably
(changing the locks). Why? Policy of potential for violence.
b. Summary Process (Majority Rule): specialized proceedings allow relatively fast determination of
the LL’s claim of right to regain possession
c. Remedy: besides possession; LL can sue for back rent for every day he wrongfully stayed past the
- LL remedies when tenant breaches the lease and leaves (3 situations)
1. Accept the tenant’s surrender: when T moves out before the end of the lease-implies
an offer to end the lease. It is up to the LL to accept this surrender; meaning that the
LL agrees that the tenant will not be legally obligated to pay the future rent. THIS
may still sue for back rent (if stays longer) or Damages for breach of the lease (K) or
an estimate of the amount the LL lost b/c of the tenant’s failure to perform under the
K. Tenant is not liable for future rent in the lease. Damages include the difference
between the FMV of the property - the rental price (i.e. re-rents for 300/month when
the previous rent was 500 (damages = 200) + reasonable costs for re-renting:
advertising; etc. EFFECT: can no longer go after original tenant if re-let fails to
2. LL refuses to accept T’s surrender: After notice to the tenant, the LL may actively
look for a new tenant and re-let the apt. on the tenant’s account. When a new tenant is
found, the LL may sue the former tenant for the difference b/w the old rental price and
the new rent received from the new lessee; the new rent must be reasonable (not $5 to
your sister).Example (KEY): Situation 1: Tenant surrenders and LL accepts: LL then
re-lets. If the new tenant doesn’t pay; the LL cannot do anything about it since he
ended his relations with the old tenant through the surrender. Situation 2: LL doesn’t
accept; new tenant comes in and fails to pay the last 2 months rent; LL can now go
after original tenant to get reimbursed for the last 2 months rent.
3. Wait and sue for the rent at the end of the lease term and Mitigation:
A. Traditional Majority rule that the LL can wait to the end of the entire lease after
the tenant surrenders and then sue the tenant for all the unpaid rent. Theory that
this is what they bargained for so they should stick to it.
B. MITIGATION (now majority rule) Courts now apply the K doctrine that the LL
must mitigate (lessen) damages and place an obligation on the LL to act
reasonably in seeking another tenant. If the LL waits to the end of the lease and
doesn’t mitigate the $ of damages will be reduced to what they would have been
had he mitigated. If the tenant does mitigate, he can recover from the tenant the
reasonable costs of finding a new tenant, the rent while the premises were vacant
and searching for a new tenant, and the difference b/w the rental price and the
new rent paid. Mitigation doesn’t mean you HAVE to find a new tenant.
C. Policy to mitigate: don’t want to sit around and waste property, restraint on
alienation, equity and fairness.
D. Burden of Proof: LL has the burden of persuasion to show mitigation b/c he is in
the best position to do so (evidence). Few states hold that the burden is on the
E. Somer v. Kridel (N.J): N.J. holds for LL to show mitigation by either: a)
personally or through an agency offered or showed the apt. to any other
prospective tenants or b) advertised. The court held that the LL failed to mitigate
where he refused a woman who wanted to re-let and waited 15 months.
F. Advice: to tenant would likely be to get a re-letter who you know is trustworthy
(b/c LL can come after you), ask him to surrender 1st (then your not obligated).
d. Security Deposits: States may limit security deposits by 1) the amount that may be
required, 2) place deposit in a separate account, 3) repay w/ interest at the termination of
the lease (less any amounts deducted), and 4) the tenant may not substitute security
deposit for rent.
14.CONFLICTS ABOUT OCCUPANCY: LL’s duty to deliver possession:
1. Majority rule: LL has the duty to deliver possession of the rented premises to the tenant at the
beginning of the leasehold. Traditional Rule- LL had duty to transfer a right of legal possession
and it was the tenant’s job to remove anyone that was still there on the lease date. MODERN
RULE: LL must give actual and legal possession on the day of the lease. LL must remove any
holdover tenants or else there is a breach of the lease. The tenant who has been shut out may
terminate the lease and recover damages as compensation for having to find somewhere else to
go or affirm the lease, withhold rent for the period during which she could not occupy the
premises, and recover damages for temporary alternative housing.
2. Transfer of Landlord’s Reversion: If the LL sells the property, the new owner receives the old
LL’s reversion and the current right to collect rent and enforce the other terms of the lease. The
new owner does not obtain an immediate right to possess the property; the tenant’s leasehold
survives. If the new LL wants, he can end the tenancy by the normal way (notice for a month
to month).
3. Tenant’s right to assign or sublet: 3 situations
a. Lease is silent: If the lease agreement does not say anything about assignment or sublease, the
general rule is that the tenant is entitled to transfer her possessory interests in the premises by either
assignment or sublease. POLICY: PROMOTING ALIENABILITY.
1. Assignment: conveys ALL the tenant’s remaining property interests without
retaining any future rights to enter the property. Under assignment, the assignee
(new tenant) is responsible directly to the landlord for all the undertakings of the
original lease (run with the land). PRIVITY OF ESTATE explains why the assignee
is directly liable to the LL for the covenants made by the original tenant. However,
the LL and the assignee are not in PRIVITY OF K since they did not reach an
agreement with each other. LL and assignee only share interest in property (estate)
2. Sublease: the tenant retains some future interest or the right to control the property
in the future. I.E. if a tenant has 6 months remaining on the lease and sublets the
apt. to someone else for 4 months; since the tenant retains the right to regain
possession for the last 2 months, it is a sublease. LL HAS NO RIGHT TO SUE
ORIGINAL LEASE (including rent). Only exception is when the subtenant
expressly (contracts with) the tenant to pay the rent to the landlord. Here the LL
may be able to sue the subtenant as a 3rd party beneficiary of the K made b/w the
tenant and subtenant
3. Example: Tenant assigns his remaining 6 months to a new tenant (assignee) who
fails to pay rent. What may the LL do? The LL may sue the original tenant for the
unpaid rent b/c the original tenant remains in PRIVITY OF K W/ THE LL OR THE
4. Example 2: Tenant sublets the apt. for four of the remaining 6 months, and the new
tenant (subtenant) fails to pay the rent. What can the LL do? The LL can sue the
original tenant (PRIVITY OF K) But cannot sue the subtenant for the rent.
NOTE: if neither the tenant or subtenant pays the rent, the LL can evict the tenant
(for possession) and end the lease, thereby terminating the subtenant’s right of
possession since the subtenant can possess only what the tenant has a right to
possess in the absence of a separate agreement with the LL.
5. If the LL sues the original tenant for rent (from the subtenant’s failure to pay), the
original tenant can bring in the subtenant or assignee into the suit as a 3rd party and
get reimbursed for the rent he must pay to the LL. Tenant = privity of K w/
subtenant or assignee.
6. IF the subtenant is paying less than the rent owed to the LL then the original tenant
must make up the difference. If paying more than the tenant can keep the
1. Modern trend to focus on the intent of the parties to find first if there is a sublet or assignment.
Even if the language in the K says sublet, that is not solely determinative on what it is; however,
the intent must also be construed.
2. Unreasonable Restraints on Alienation: allowed in leasehold estates because only temporary.
For Example, if a lease says “Tenant is prohibited from transferring the lease in any manner
whatsoever” this will likely be upheld in a residential lease. However, this cts. Will likely hold
invalid as a Commercial Lease for an unreasonable restraint on Alienation. The lease “Tenant is
prohibited from transferring the lease. If the tenant does transfer the lease, the LL can terminate
the lease and re-enter the premises” This will likely be invalid due to the Rule against
Forfeitures. Cts. Like to keep the property in current possession.
TENANT TO SUBLET? Ct. followed the trend (although minority rule) stating that out of
fairness and equity (good faith bargaining K), IN A COMMERCIAL LEASE, the LL must give
a commercially reasonable reason for rejecting the sub-let or assignment. Majority rule
generally allows arbitrary reasons especially for a residential lease. Thus, if silent, Cts. May
impose reasonableness!
- Factors to consider for a commercially reasonable objection
Financial responsibility of the proposed assignee
Suitability of the use of the particular property
Legality of the proposed use
Need for alteration of the premises
Nature of the occupancy (office, factor, clinic, etc.)
What’s not reasonable: denying on personal taste, convenience, or
sensibility or to impose additional conditions: like charging a higher
rent then the K price
4. General Rule: You are allowed to w/hold consent for arbitrary reasons in a Residential Lease.
Why? Policy and nature of Residential; its more of a personal relationship and concern of who
is in the home.
5. It may be o.k. in residential leases to even negotiate reasonableness away in the lease itself.
Perhaps for lower rent or a longer lease term.


a. EXPRESS AND IMPLIED LEASE TERMS: landlord and tenant can K for express terms in the lease
upon which breach can equal termination of the leasehold. However, there may exist IMPLIED
terms in the lease that may not be written down, expressed, or even waivable.
b. Implied Covenant of Quiet Enjoyment: the LL impliedly promises not to disturb the tenant’s
quiet enjoyment of the property. This is a possessory interference!
c. Landlord’s Remedies: a) Back Rent- rent previously owed, b) Possession (eviction), c) damages
as a result of breaching the lease (cost of repairs).
d. Tenants Defenses: a) deny breach of lease, b) implied warranty of habitability, etc. KEY: if a
tenant has a successful defense for back rent, he may be relieved of the obligation to pay all or part
of the rent. In addition, a successful defense for possession may allow him to remain in the
e. KEY CONTROVERSIES (5) Actual eviction and partial actual eviction relate to interference with
one’s possessory interest in use and enjoyment of the property. Here are the remedies.
1. Actual Eviction: the LL breaches the lease by physically barring the tenant from the property
(changing locks/throws him out on the street), then the tenant’s obligation to pay rent ceases
2. Partial Actual Eviction: When the LL bars the tenant from only part of the leased property.
The difference here is a partial actual will = a breach of the lease and provides the tenant with
ample justification to move out b4 the end of the lease. BUT, if tenant chooses to stay, the
tenant does not have to pay rent. Example- if the LL stores smelly garbage in a room of the
house. MODERN RULE: seems to abate the rent to the FMV of the property that remains.
3. Constructive Eviction: LL SUBSTANTIALLY interferes with a tenant’s quiet enjoyment of the
premises. The defense of constructive eviction allows the tenant to stop rent payments and
move out before the end of the lease term. The theory is that the living in the apt. must be
impossible or so uncomfortable that it is equivalent to physically barring the tenant.
- ELEMENTS: 1) There must be wrongful conduct BY the landlord and not somebody else
(another tenant or another LL), 2) The conduct must be within the Landlord’s Control, and
3) The wrongful conduct must have substantially interfered with the tenants use and
enjoyment., and 4) The tenants must abandon at a reasonable time (under the
circumstances). LEGAL STANDARD= Substantial Interference!
- Tenant? Traditional rule says that the tenant can claim the constructive eviction defense
only if he moves out within a reasonable period of time. Also key in his defense is the
SUBSTANTIAL element (nobody in the right mind would stay here). If the tenant stays
for any amount of time, use this as an argument that it was not substantial on exam!
- Blackett Doctrine: What does it mean to be within the LL’s control? Case where LL did
not have intent or create the interference (bar across the street w/ loud music); however,
the ct. said that acts from 3rd parties can make landlord liable if they are within his control.
Key fact was the bar was also his tenant and in their lease they could not disturb the
neighborhood; thus, he could of remedied the situation.
- What blackett says? The LL is not responsible for the acts of other tenants unless the
lease specifically includes an obligation to control the conduct of other tenants.
- Sexually Harassed Tenant problem: What do you tell the girl? Look at the lease and see
if the LL can control the situation. Is the LL the harassers LL too? If so, document each
occurrence and the LL’s responses. This could be constructive eviction.
4. Partial Constructive Eviction (Minority rule): Must show that the LL’s actions have
substantially deprived the tenant of the use and enjoyment of a portion of the property. The
tenant may still live in the area of the apt. that the LL has not constructively evicted.
REMEDY: likely partial; abatement.
- Minjak: a) the lease was a commercial use but the tenants used it for residential purposes?
Ct. however interpreted this as a residential use despite this fact (leases don’t always
operate how they say they do –bargaining power of the LL/Tenant relationship), b) the
tenant was suppose to leave in a reasonable time for partial constructive eviction (the
building had sand blast, holes from construction, water leaks from Jacuzzi, and in 1
room /portion you could not live there) BUT this was NYC where there was limited
housing so the standard was laxed (standard is circumstantial), and C) ct. awarded an
5. IMPLIED WARRANTY OF HABITABILITY (relates to the suitability of human
habitability) much broader than a substantial interference with use and enjoyment.
a. Javins v. First National Bank (D.C. Cir. 1970): Landmark Case. Policy view of the
doctrine. Traditional view was that property was seen as a transfer of the land in which the
landlord no longer has any other obligations to the tenant. The tenant can now repair or
improve the land as he wished. Today, land is more than that but we look at it as shelter,
and living in the home. I.E. who cares about the land in a 6th story apt? Now there is a K
theory of consumer reliance, that tenants expect certain obligations from the LL, in
particular that the premises are habitable. Thus, the ct. here implied the warranty of
habitability into a lease the housing code of the state.
b. A Defense: Tenants can use the implied warranty of habitability as a defense to rent.
c. Examples of the warranty: lack of heat/hot water, broken windows, pest infestation,
leaky roofs, etc. Some tougher cases include neighbors smoke? Swimming pool breaks
down? Etc. These must be argued both ways on the exam.
1. Standard: some cts say implied warranty of habitability in terms of the warranty is
breached as a measure of when the housing codes are violated. Other states measure
LL’s obligations independently of housing codes holding that the obligation must
conform to community standards of suitability of occupancy (somewhat broader).
2. Notice: Majority rule is that the implied warranty is not violated until the landlord has
been notified of the problem and has had a reasonable opportunity to fix it. Minority
rule is that a violation occurs at the moment the condition occurs and therefore a
breach occurs whether or not the LL had a reasonable time to fix it (idea that the LL’s
duty is to consistently maintain and inspect b4 things happen). Finally, some minority
courts hold that the violation starts as soon as the LL is notified. If these conditions
are violated then the tenant does not have to pay rent!
3. Non-waivable provision: No matter what (even if K upon), the tenant cannot waiver
his implied warranty of habitability in the lease (policy, important to uphold habitable
4. Scope: Only applies to Residential Leases not commercial. Note: this defense has
almost negated the usefulness of the Summary Process benefit for the land lord.
However, the rare exception is those courts that may adopt the Implied Warranty of
Suitability: suitability in the circumstances. May be applied to commercial leases.
5. Remedies: A KEY DISTINCTION B/W C-EVICTION (so many more available)
a. Recission (move out b4 the lease term ends): won’t be liable for future
remaining rent as soon as the warranty is violated. KEY: is that the change must
be material in the housing conditions but doesn’t have to be enough to meet
constructive eviction.
b. Rent Withholding: the tenant can stop paying the rent and continue living there.
KEY: this distinguishes warranty of habitability from constructive eviction
because the LL no longer has to leave the premises. It is advisable for tenants
withholding rent to place it in an escrow just in case you do owe back rent.
c. Rent abatement: reduction in the rent, or reimbursement ofr a portion of the rent
previously paid by the tenant. Depends on the fair market value of portion.
d. Repair and deduct: Tenant may pay for the repairs then deduct the cost from
e. Injunctive relief/specific performance: court order to comply with housing code
or repairs.
f. Administrative Remedies. File a claim with an agency who regulates housing
conditions and they will take appropriate steps.
g. Criminal Penalties: Under some states, violations may s/j them to penal crimes.
h. Compensatory Damages: Independent law suits: reduction in rent, physical
harm/sickness caused, $ they spent in changing houses, etc.
6. What you must assess on the exam? Is the premise habitable with the condition? Is it
within the landlords control (although different than C-Eviction; if its totally w/out his
control: i.e. from another tenant / LL then this is a cause for nuisance.
7. Smoke example: smoke pours down hallway into you room and you have cancer.
Does this violate habitability? Is it a subjective or objective standard?
8. RETALIATORY EVICTION: usually the tenants form an association or perform
some act to voice their complaint that is CONNECTED TO THE HABITABILITY
OF THEIR PREMISES. After this, the LL 1) Raises rent, 2) Decreases Services, 3)
Fails to Renew the lease, or 4) Brings an eviction (possession) Proceeding.
a. Hill View: Mobile Home Case. Tenants have a meeting w/ LL and one tenant
punches LL in the face. LL later evicts 5 tenants at the meeting. The Iowa code
set a law with a presumption that if the retaliatory conduct happened within 6
months after a complaint involving the lease/warranty of habitability, then
retaliation is presumed as a defense. Here, the LL met his burden that he had a
legitimate reason for terminating the tenant’s lease who assaulted him but could
not meet his burden for the other 4 tenants. Ct. ruled retaliation; and remained
until end of the lease.
b. Fouts Case: Fouts is a miner and lived in a trailer owned by the mining company.
Fouts spoke out about the conditions of his employment and the mining company
terminated his lease. Ct. held that this is not retaliatory. This is because the
retaliation was not in connection with the habitability of the premises; rather, it
was about his employment. The NLRB could take care of this. Claim must be
directly related to the warranty of habitability!
c. Newspaper Case: If a writer writes about the inhabitable conditions of his
premises in the paper and is terminated; this likely would be retaliatory because
of public pressure. However, if he wrote about other tenants conditions it would
not be because not directly related.
1. Definition: a substantial and unreasonable interference with the use or enjoyment of the land (apply to
offensive actions physically or to the senses (noise, pollution, smoke, dust, X Mas lights, or even flies).
2. Distinguished from trespass: trespasses are intentional invasions of the interest in possession whereas
nuisance is a substantial and unreasonable interference with the plaintiff’s use and enjoyment. Trespass
involves physical invasions of land where the protected interest is the P’s possessory interest. Nuisance
is use and quiet enjoyment interest the KEY is unreasonableness and substantial harm (end result).
Trend for invasion by particles is to let P bring a claim for trespass and nuisance.
3. Distinguished from Negligence: Negligence is unreasonable conduct and duty of care. Nuisance focuses
on the result of the conduct rather than the amount of care of the conduct. The only question is whether
the interference was unreasonable; not whether the D acted with due care. Nuisance also does not have
to be unlawful!
4. How to approach a problem: 1) was the interest in use and enjoyment violated? 2) Was the interference
substantial? , 3) Was the harm unreasonable?
5. TEST: Cts. Will generally compare the costs and benefits when defining the unreasonableness of the
activity is determining whether the “gravity of the harm outweighs the utility of the actor’s conduct”.
- Gravity of Harm: a) Extent, b) Character of the harm, c) social value that the law attaches
to the type of use or enjoyment invaded, d) suitability of the particular use or enjoyment
and the character of the locality (business/residential), and e) the burden on the person
harmed of avoiding harm (was it easy to avoid).
- Utility of the conduct: a) social value that the law attaches to the conduct of the defendant,
b) suitability relevant to the locality (time and place), and c) impracticability of preventing
or avoiding the invasion. ***Could the person just lower the music a little bit or close his
- Ultimately a balance b/w owners right to use property and neighbors right to use and
6. Remedies: 1- None (absolute entitlement to engage in the conduct 2- Injunctive Relief: order defending
to stop the harm; not entitled or does not have a right to commit the activity, 3- purchased (conditional)
Injunction- person is free to conduct the activity but parties bargain to stop the activity, 4- damages
(harm caused by the activity).
- Cts. May determine that the activity is socially useful; therefore they do not grant an
injunction (more good than bad) but still compensate the plaintiff (b/c he should not be the
only one to bear a public good).
7. Who may sue? (Page County) Liability goes to any actor who “materially participated” in causing the
harm. Q is whether the Defendant’s conduct was a substantial factor in causing the harm.
8. Public Nuisances: unreasonable interference with a right common to the general public (obstruction of
highways). Any member may bring a law suit.
9. Nuisances Per Se: So disfavored constitute nuisance no matter where/how they take place (drug den).
Burden on the other party to show it’s not a nuisance.
10. Unusually Sensitive Doctrine: Some activities are not nuisances because regulating them will be a
surprise. The defendant’s conduct is generally inoffensive; however to this particular plaintiff it is.
11. Coming to the nuisance: Persuasive Factor: if the plaintiff comes to the nuisance not an absolute
defense. Cts. Treat the issue differently: 1) absolute defense, 2) Must compensate the person who lived
there earlier if they stop the activity or shut down business, 3) Or the P still may proceed (nature of
activity important).
12. Page County: computer emissions unreasonable? YES substantial interference? YES: Who caused it:
Likely Honey will, they maintained the K to fix it (material participation). The ct. did not focus on
intent b/c the manager tried to fix it. It was the harm and business loss that did the trick.
13. Fountainbleau AND Prah Distinction: These cases illustrate how time and locality will dictate a
nuisance case. Fontainebleau involved a hotel extension that would shadow plaintiff’s beach. The case
was in the 1950’s in Miami FL and the ct. ruled that there was no right (entitlement) to free light;
therefore there was no nuisance against the plaintiff. Prah involved a 1980’s case in Wisconsin
involving the blocking of light for a solar panel. Distinction here: Light more impt. In Wisconsin and
solar energy more impt. In the 1980’s. Ct. didn’t buy policy arguments of right to improve land, and
scarcity of land. This is a new day and age; Nuisance is a flexible doctrine.
14. Spite Fences: Nuisance was only there to harm the plaintiffs (Foutainbleau) ct. takes this into account in