Property Outline Complete

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Property Outline
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Property
Professor
I.
Introduction
A.
B.
i.
ii.
a.
C. General
Property:
Relationships
Possession
Possession:
Common
Bundle
Title:Outline
Leshy
law
of
ownership
rights:
vs.
favors
usually
Fall
between
title
generates
either
Property
2003
dominion
peopleoris
html
results,
with
and
a bundle
versions
control
respect
notofshared
ofrights,
todocuments
things.
interest.
not necessarily
as we crawl all
the present
web.
: right
exclude
II.
A.
i. Acquisition
General
Firstothers
toPossession:
possess
rule:from
by The
Discovery
it,
using
first
Acquisition
useitin
it,(most
timebyto
fundamental),
Discovery,
discover land
Capture,
transfer
in a new
Creation
by world
gift orhasbyexclusive
sale.
the
ii.
Facts:
property
native
Johnson
Johnson
rights,
people.
v. purchased
MÕIntosh
even
Thisas(p
was
itto3)from
agreedtheupon
Indian
by European
tribes onpowers.
the land (1773 &1775), MÕInt
oshgot Can
Issue: it later
NativefromAmericans
the US convey
govÕt. good
Johnson
title
suedtofor
lands
ejectment.
they occupy and that are
claimedby Have
Analysis: the UStoGovt?
trace the Òchain of title.Ó Mere occupation may not give you legal
Only
title.a state can discover, and the first discoverer has exclusive property right
s(Britain) Ð before discovered, there was no title. Native Am only had right ofocc
upation. Britain gave it to US, who gave it to MÕIntosh. Native Am had no titleto
transfer
Concl:
Possession
title.
a. Note:Native
Only
(they
The
first
law
Americans
inhassometo
in time
sense
couldnÕt
reflect
to ÒdiscoverÓ
conveyed
some
conveynotion
itto
real
already
Johnson.
ofproperty
reality
to Britain).
has
andpower
of history,
to transfer
titletitle.
is
European created, this isnot about logic but experience Ð the logical construct of
the law is imposed on the history. If courthad gone other way, would have under
mined
iii.
a. General
Labor
all claims
TheoryWant
rule: ofoftitle
Value
to recognize
given
(Locke):
by the
USAccession
govt.
value of the labor people invest in prope
rty.LawWeofwant
encourage
b. people
accession
to to comes
investintoproductive
play when labor.
one person adds to the property of anot
her. someone
when What happens
uses someone elseÕs property to make something? Who owns the product?
1. Traditional rule: person who owned original property is the owner, but if the
improver changedit so much that it is a completely different thing, it belongs
to Modern
2. the improver
rule: disproportionate
(grapes into wine). value Ð if value of improvement is disproportiona
te to the valueof the materials, improver gets it. Usu has to be done in good fa
c. This theory applied to Johnson v. MÕIntosh: Native Americans didnÕt put an adequa
ith.
te Monopsonist
labor
1. amount
intoofthe Ðland
soletobuyer.
perfectGovta ÒpropertyÓ
was sole buyer,
interest
which
in reduced
the soil.the cost they had
to Property
d. pay. confers and rests on power. Owners have a form of sovereignty over o
thers because thesovereign state stands behind the ownerÕs assertion of right.
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1. Critical
Property Outline
Legal10/5/10
Studies10:49
Ð reject
AM the notion that the law is neutral and apolitic
2. General
al.
Acquisition
B.
i. Criticalrule:
RaceCapture
by Theory Ð is
Property develop
acquired
a jurisprudence
by actual capture.
that takes
Mereracism
pursuitinto
is not
account.
eno
ii. Pierson
ugh.
Facts: Post pursues
v. Post the (p 19)fox on un-owned land, Pierson killed the fox (in sight o
f Post)Does
Issue: and Post
took ownit away.
the fox because he was in pursuit, or does Pierson own it b
ecause he actually killed andcaptured it? At what point between wild animal runn
ing free and
Analysis: Ferae
physical
naturae: possession
wild animalis ownershipestablished?
(on un-owned property) isnÕt owned until capt
uredDictum: When wild animal is wounded to the point at which itÕs liberty is take
n away ÐRuling
cornered
Policy: mortally
with nothehope
wounded,
otherof way
escapewould
Ð itcreate
couldabeÒfertile
considered
source
to of
be quarrels
owned. and litiga
tionÓ Ð actual
Dissent:
prove. Thinkscapture
foxes should
is easierbe killed,
to so that the rule should encourage pursui
ng Majority
Rule:
a.
b.
c. andCapture
Ferae
Return
killing.
naturae:
toopinion
natural
isPursuit
good
wild
isstate:
enough
aanimal
withreasonable
ruleiffor
(on
(clear)
animal
title.
un-owned
Ðescapes,
prospect
Saucy
capture
property)
intruder
ownership
=oftitle,
success
isnÕt
wins.
right
dissent
= title
ownedisis
until
extinguished.
a principal
captured (m
uddy)
reasonable
1.
2. Principals
There
-Pursuit
areprospect
few
are
with
examples
more
of flexible
success
of hard=but
title.
andmore
fastcostly
rules.toRules
administer
are cheaper to administe
r andRatione
iii. the outcomeis
soli -ownerclear.of the land has constructive possession of wild animals
on the land. Landownersregarded as the prior possessors of any animals ferae na
turae
a. Thisonistheir
a Òconstruct,Ó
land, untilathe legal
animals
mechanism
take for
off.determining ownership without actual
b.possession.
CA: AnimalsThisenforces
wild in nature my real
are possessed
property rights,
by: landowners
discourages
whiletrespass.
they are on the
property (if theyclaim ownership); when tamed; or taken and held in possession;
1.orIndisabled
this case,
and would
immediatelypursued.
it change the result in Pierson? Post could argue that he
disabled the fox andpursued it. Pierson could still argue that he had taken it
and held it in possession. This stillhelps Pierson more (but it does put Post in
c.a Many
betterstates
positiondonÕtthanfollow
he would
rationehavesoli.
been,People
right?)have right to keep hunters off th
eirCould
tort
1. property
rightyou(trespass)
under
be guilty
a and of trespass
not as a and property
own the
right
animal?
over Probably
the animals.
yes, although th
en you
iv. Custom
areencouraging
and usage rule trespass.
Ð court makes a decision about ownership based on the cu
stomGhen
v.
Facts: ofGhen
theRich
v. industryand
is a(pwhaler.
26) whether
He struck a ruling
a finback
wouldwhale
impair
thatindustry.
floated to the shore. It
was found by Ellis, who, againstProvincetown finback whaling custom, auctioned
it to Rich, who sold the oil. P-town custom Ð whalershoots whale, which sinks to t
he bottom and surfaces days later somewhere along the shore. Finder tellswhaler
(lance has identifier on it) and gets a finder fee. Ghen sued for price of oil a
nd argued
Issue:
Analysis:WhoCustom
that
ownsitthefor
washis
whale,
theseproperty.
the whaler
whales was different
who killedfromit orthat
theoffinder?
other whales. The r
ule is that a whale killed (andattached to the boat by rope) is the property of
the boat owner. This whale sinks to the bottom and later
Policy: Ifdays
Property
surfaces Outline
courtlater.
10/5/10 protect
doesnÕt 10:49 AMthe customs of the whaling community in this case
, whaling
Rule: Custom willorcease.
usage rule: Court makes a decision based on the custom of the in
vi.Spectator
dustry.
a. Barry BondÕs caughtbaseball
the ball, fell down in the fray, someone else picked it up.
WhoThe
b. ownscourt
the ordered
ball? the proceeds to be split. This is very rare. Usually it is
either
There
1. Forreally
aor.long
Whyistime,
isnothat?
good
people
answer.
thought
Courts
of the
looklawatasproperty
eternalmatters
truth that
as either
had toor.
be di
scovered, and thisimplied absolute winners and losers. Now, we think that the la
w is crafted. This is breakingdown the law that we have to have either or determ
vii. Fugitive resources: Oil, gas, water found underground under property owned
inations.
by Traditional:
a. more than person. this is like wild animals (ratione soli and the rule of capture)
. People
their
b. Then,
property
own things
realizedif this
they
on is
capture
reallyit.not smart. It tells everyone to pump as fast as
you can Ð if you donÕt getit, someone else does. This also reduces how much can be
extracted
and led to(if depletion
do it slowly,
of ground
canwater.
get more)
Inefficient production and no conservation
c.over
1. Western
First
theperson
longterm.
stateswhogoverned
appropriates
groundandandputs
surface
it towater
reasonable
by firstandinbeneficial
time use ha
s superior
2. Eastern states,
right tolater
more water,
people.riparian rights Ð each owner has right to use subje
ct to Externalities
viii. the rights ofother Ð Exist
owners.
whenever someone makes a decision about how to use res
ources without takingfull account of the effects of the decision. Externalities
are a function of transaction costs, and theyencourage a misallocation and ineff
icient
a. External
use ofcosts
property.
Ð X doesnÕt consider costly effects if they fall on others, even i
f the extra amount itwould cost him to fix it is way less than the overall cost
to the community if he doesnÕt. This useis ÒinefficientÓ because another use would inc
rease
all
b. Ifparties
the value
other better
partiesof off.
the
offer
resources
to pay,involved
X has toandthink
makeabout how his actions affect ot
hers,
ÒinternalizesÓ
c. Transaction
and thus costs:
the externality.
If it is too hard to make an agreement, then the transacti
on coststhere
because are tooarehigh
lotsÐof parties, the cause/effect is unknown/uncertain, those
whoFreeriding
1. donÕt contributecan
problem occurs
get awhen
freehave
ridetoifextract
they donÕt.
payments from a group where th
e benefitswill
ix.
1. General
Demsetzrule:
andconfer
externalities
Primary
on function
the group
(p41)ofasproperty
a whole.rights is to guide incentives to a
chieve greaterinternalization of externalities. This happens when the gains of i
nternalization
2. Communal property:become Costs
higherthan
of agreement
the costs.and costs of policing use of communal o
wnership
A) Communal maybe
ownership
high. results in great externalities, and the more owners, the h
igher
of
B) internalization.
People
the have
cost incentives
Transaction
to overcosts
use and
are greater
high. tendency to act contrary to co
llective
3. Privatebestinterest.
owners have an incentive to maximize resources, and have less externa
A) Private
lities.
B)
Promotesownership
economic Ònourishes
efficiency diversity.Ó
and free transferability.
C) PrivateOutline
Property ownership
10/5/10
reduces
10:49externalities
AM by transforming external costs into i
nternal
4. Criticism:
costs assumes that efficiency maximizing behavior for the individual mea
ns For
b.
Acquisition
C.
i.
a. efficiencymaximizing
The
General
aanti-commons:
long
rule:
bytime,
Creation
creator
property
multiple
behavior
has law
exclusive
rights
for unfriendly
was society.
to rights
exclude,tototangible
encourages
intangible
property
underconsumption
things.
(chattels).
Concept of
b.property
CreatorÕs cameownership
fromland.rights in intellectual property may be uncertain unless pro
tected
c. Quasi-property
by statute Ð property rights over intangibles with respect only to certain
others,
d.
ii.
Facts:
Competition
INSAPv.such
releases
AP:asbusiness
creates
copycats
newsafor
competitors,
(p
better
60)
members.
deal APbuthas
for not3consumers
the tocomplaints
the general
(Cheney
about
public
Bros(INS
INSÕs &behavior:
Chanel)
v. AP).1)
bribing employees,
inducing AP members2)to violate by-laws, 3) copying news info from bulletins & ea
rly editions and sellingto newspapers. First two already decided by lower court.
AP says INSÕs actions violate APÕs propertyrights in the news and constitutes unfai
r business practice. INS argues that the moment AP makes the newspublic, it is a
vailableMaytoINS
Issue: all.be restrained from taking news from bulletins and newspapers (int
ended for News
Analysis: public)facts
withthemselves
purposeofare selling
not property,
it to INSand clients?
reports are not of literar
y value so that copyrights wouldapply. What INS is doing is unfair business prac
tices. AP has right to quasi property with respect to INSb/c it is their Òstock in
trade.Ó AP is protected from INS but not from the general public. AP has anowners
hip rightKeep
Policy: thatbusinesses
transcendsfromtheunfairly
physicalprofiting
aspect offromthe the
property.
labor of another. You c
anÕt take something to Òunfairlyprofit,Ó even if it is in the public domain. Want to e
ncourage
Rule: Businesses
gatheringcannews
haveandquasi
keepproperty
it profitable.
where their right to intangible propert
y is protected against anotherbusiness using it to profit unfairly from their la
bor, Cheney
iii.
Facts: butP makes
areBrothers
notsilk
protected
designs
v. Dorisagainst
each
Silkseason,
the general
Corp. (p 64)succeed.
some public. D copied successful desig
ns and sold for cheaper. Pcannot patent all the designs (prohibitive, takes too
long) and cannot copyright (no words). P requestsprotection only during the seas
Issue: AreCanÕt
on.
Analysis: the silk
ask for
designs
limited
quasiprotection.
property asINSthev AP was
newsspecific
in INS v.toAP?
that situatio
n, not a general rule. To preventimitation of a design would give too great powe
r to designer.
Policy: We wantThere
to encourage
is no common
competition
law copyrightprotection.
b/c it is a better deal for the consume
r. Imitation of the news doesnÕtimprove it, but imitation helps here to lower the
Rule: Promote competition to prevent monopoly and lower prices, but must be bala
price.
ncedCopyright
a.
1.
2. Copyrights
Protects
againstthe incentive
is expression
federal toproduce,
law.ofWant
ideas,
invent.
copyright
not theprotected
ideas themselves.
across the country b/c oth
erwise it wouldinterfere with commerce. This is a good policy argument, but it i
s not one we have accepted inmost areas of property law (which is primarily stat
e law).
3.
4. TheisConstitution
It a reward system,
specifically
and youcalled
want toforprovide
a national
incentive
copyright
for people
/patenttolaw.
keep c
reatinggive
WeÕll newyou
things.
property rights so you can make money off of it in order to promote
5.progress.
Patents only last for 20 years. Copyrights keep being extended (Mickey Mouse)
.http://webcache.googleusercontent.com/search?q=cache:QBJnRbY3DuUJÉeshyF03.doc+prop
1. Smith advertised
Property
b. Outline
v. Chanel10/5/10
(pproduct
65)10:49wasAMsame as Chanel No. 5. Allowed to do so b/c there
is a publicbenefit: imitation & competition = lower prices. Expenditure of $ is
Virtual
iv.
Facts:
not a Virtual
legally
Works v.Works,
protectedright.
Volkswagon
ISP, bought
(p69) vw.net, knowing that it was remarkably similar
VW.
to They
VolkswagonÕs
thought about
trademark,
possibly selling to VW later. Virtual Works used it for 2
years, then contacted byVW to buy from them. Virtual Works said would sell to t
he highest
Issue: Did Virtual
bidder. Works, in bad faith, purchase vw.net in order to profit from
its similarity
Analysis: TheretoisVolkswagonÕstrademark?
a law passed by Congress prohibiting cybersquatting. To be il
legal, you have to have a bad faithintent to profit, and there is a whole list o
f factors for determining bad faith. Virtual Works met thesecriteria: knew it wa
s similar, intended to profit, could have bought another name, never went by VW.
Rule:
Policy:BadFair
faith
competition
use of another
is good,companyÕs
unfair registered
competitiontrademark
is bad. in a domain name is
illegal.
a.
b. Cybersquatters
Parasites
Unfair
areprofit
people
= Virtual
fromsomeone
who register
Works elseÕsdomaingood
names
name.
similar to TM and then use the
m inPoachers:
c. ways thattarnish
register domain
image. names similar to other orgs in order to disseminate
d.unfavorable
v.
a. Dilution
Property
Used to bein
Ðinfoabout
use
all
OneÕs
of Persona
about
a TM
them.
privacy:
may(pdilute
77)
Womanorwhose
blur face
distinctiveness
was on a flour
of TM.
sack had to con
b. Vanna
sent.
1. Then became
White case:
more about
Computer
rightimage
to exploit
based ononeÕs
her.image
It wasnÕt
for oneÕs
her image
own profit.
but her char
acter
vi.
a.
Facts:
Moore
Property
andconcept.
Moore
v. UCsought
inRegents
OneÕs
Shetreatment
has
Person
(p 79)
a property
(pfor79)leukemia.
interestHadinhis
herspleen
character.
removed and many test
s done. Had 7 years oftests and follow-up procedures he was led to believe were
important to treatment. Doctors used hisspleen and samples to make cell line wor
th billions. Moore sued for conversion (possession of someoneelseÕs property as yo
ur own),Does
Issue:
Analysis: lack
Found
a person
ofnoinformed
cause
own for
his
consent,
or herbreach
conversion,
own organs
just
of drÕs
breach
anddisclosure
bodily
of doctorÕs
tissues
obligations.
disclosure
once removed?
obliga
tions. Conversion must be anactual interference with PÕs ownership or right of pos
session; only property can be converted. It ispossible that someone elseÕs cells c
ould have been used. His cells were the starting point, but at the endpoint they
Moore
were has
no longer
an interest
uniqueintohishim,cells
and while
Drs putininhislots
bodyofbut
workextraction
and skill.from his bod
y severs his interest. CalStatute limits patientÕs control Ð human tissues should be
safely disposed of. Moore had the right to sayno to the procedure and can keep
his cells in his body. Conversion is a Òstrict liabilityÓ tort, all who usethe cells
Dissent:
would beProperty
liable, isincluding
a bundleother
of rights:
researchers
rightwith
to use,
no connection
right to exclude,
to patient.
right t
o dispose of. These rights donÕt haveto all be present all of the time for you to
have property interests. Property rights of oneÕs own tissue isfair and prevents u
njust enrichment. MajorityÕs interpretation of statute is wrong. It authorizes tra
nsferof tissue for research purposes and only prohibits sale for treatment and t
ransplant. The statute treatstissue as property that can be sold and should be p
rotected by law of conversion. Majority gives patientonly the right to refuse an
d not
To winthe
on aright
nondisclosure
to grant consent
action,onPatient
the condition
must showofthat
sharing
theyproceeds.
would have said no
Policy:
if he had
WantknownAND
to encourage
no reasonable
researchers person
to come
woulduphave
withsaid
medical
yes. breakthroughs that
help people, and legislatureshould decide. Leshy disagrees Ð if wanted to have le
gislature decide, should have ruled the other way.
Rule:bodydonÕt
Property
Patients
Once Outline
partshave
removed,
10/5/10
lobbying
10:49power
they noAMlonger
like belong
the medical
to theindustry
patient but Drs have a dut
y to get informedconsent to use them. Moore had no property rights over his tiss
uesANotes:
1.
A) once
patenttheyiswere
granted
removed
for invented
from hisbody.skill. The patent of the process doesnÕt mean
I own
B) Lawwhatcreated
of accession: thatWhat
process
happens or when
the materials
someone comes
that along
go intoandtheapplies
process.
his skill
and laborusing your materials? Who owns the product? 1) The person who owns the
materialscontinues to have an interest. 2) How much depends on all the facts an
d circumstances.
Courts may give owner of materials more than worth of materials, but nowhere nea
r asmuch
b.
1. The right
General asrule:
the
to include
worth
Property
ofand
the
isexclude
aproduct.
relationship
(p 99) among people that entitles owners to
and
A)
include
The
exclude
right
(permit)
use
to exclude
or possession
is fundamental
of the property
(even when
by others.
inefficient) except to serve t
he Jacque
2.
good.
Facts:
public
Thev.bestSteenberg
path forHomes
a mobile
(p 100)
home to be transferred was across the JacquesÕ l
and. Jacques
Steenberg
Issue: CanHomes
owner
refused,
went
exclude
across
someone
theirfrom
landcrossing
anyway. land even if would cause no damag
e and is moreefficient
Analysis: US Supreme Court thanrecognizes
going around?private landownerÕs right to exclude others
from his land, one ofthe most essential sticks in the bundle of rights. Intentio
nal trespass can threaten the individualÕsownership of the land. Society has inter
est in punishing trespassers beyond protecting the interestsof the individual la
Policy: This serves the public good. In the long run this is economically ration
ndowners.
al Privacy
Rule:
A) evenThethough
right
interests.
inefficientin
to exclude
In addition
isthis
fundamental
case.
to property
(except
rights,
for there
servingispublic
a privacy
good).
and lib
erty interest atstake here. Even though this is an extreme situation, this is th
e law
3.
Facts:
State
and
Shack
v.youShack
Ðhave
attorney
(pthe101)
rightto
for farmexclude
workerspeople.
legal rights and Tejeras Ð nonprofit worker
, entered TedescoÕsproperty in order to provide medical assistance and legal advic
e. Tedesco said they had to do it inhis office. Ds refused and said workers had
right toDidbeDseen
Issue: trespass
privately.
by entering and refusing to leave private land in order to
Analysis:
offer legal Title
andtomedicalservices
real property does to farm-workers
not includehoused
dominion
on over
that people
land? owner per
mits ontoworkers
Migrant the premises.
are highly disadvantaged, and need services. Necessity may justi
fy entry uponlands of another. There is no legitimate need for a right in the fa
rmer to Is
Policy: denythis
workers
consistent
theopportunity
with Jacque? for The
aid.larger human value served by allowin
g medical and legal aidin the Shack case overcomes the right to protect against
trespass. This policy distinction isnÕtrelevant in Jacque. Generally speaking, con
venience
Rule: Right
doesnÕt
to exclude
overrideis not
property
absolute:
rights.
does not include dominion over people ow
nerThe
A) permits
courtontodoesnÕt
thepremises
say this(farm-workers).
is unconstitutional under 1st amendment -they could
have, butthey didnÕt. If court has a choice between common law and the constitutio
n, courts avoidthe constitutional question when they reasonably can. Ruling on c
onstitutional matters is
II. Subsequent
Property
rigid, difficult
OutlinePossession:
10/5/10
to reverse10:49
Acquisition
andAMpotentially
of Property
at oddsbywithFind,
other
Adverse
branches
Possession,
of govÕt.
andGeneral
A.
i.
ii.
Facts:
Acquisition
GiftChimney
Armory Rule:
v. Delamirie
byFinder
sweep
Findfinds
(p107)
hasa108)
(p good
jeweltitle
and takes
againstitall
to abutgoldsmith
the trueforowner.
appraisal. Go
ldsmithWho
Issue:
Analysis: takes
Unless
hastherights
the
jewels
jeweler
to the
out.produced
jewel?
CSsuing the
for jewel,
amount thejewels
jurywere
should
worthfind
(trover).
the strong
estTrover:
Rule:
a. case
Finder
against
Sweep
has sued
him (most
good titlefor
not valuablejewel
against
the jewel
all but
as the
wouldvalue
true
fitowner.
in the jewel
of setting).
(trover). Rep
levin
return
b. Bailment
isofsuing
theisactual
for goods.
temporary possession for some particular purpose. The owner is th
e bailor,
other
1. Traditional
person andisthe
rule:
the bailee.
Different It kinds
is a pretty
of bailments
elaboratehadlaw.
different kinds of standar
ds The
low
2.
3. ofstandard,
Modern:
care.
law ofMostly
Finder:
Cleaners,
bailment
just isaetc.:
reasonable
traditionally
high standard
dutythe
of law
of care
care ofregardless
contract because
of kind it
of is
bailment.
usuall
y governed
c. ÒLawful possessionÓ:
by somecontract, Anderson
but contract
v. Gouldberg.
law doesnÕt
Possessorworkofallpersonal
the time.property has su
perior rightsagainst all but the true owner, even if he obtained his possession
wrongfully. Otherwise, wouldlead to endless series of unlawful seizures once out
d.ofThe
1. Notes:
truesweep
ownerÕs
is thepossession.
bailor, and the jeweler is the bailee. In regards to the tru
e owner: the sweep isthe bailee, and the owner is the bailor. This is an implied
2.bailment.
Sweep gets all the money based on the assumption that he has absolute clear t
itle to all but theowner. Should the value be discounted the amount of the odds
thatThe
A)
up?
3. Forthejeweler
a long
true time,
owner
is paying
willdidnÕt
law showsweep
the wantintoeffect
split for
property:
title,ItÕs
titleyours
thatorisitgood
isnÕt.
again
st all except the trueowner, so then if the true owner does appear, then the jew
elerThehastrue
A) to owner
give itcanÕt
back.sue the wrongful possessor if the bailee has already recov
ered What
him. from if the sweep is gone? Law probably would find that the jeweler had to
payagain.
iii.
a.
1. General
Locus
Locusowner
But
owner
Rule:
S/L
doesnÕt
wouldhaveapply.
title over lost chattels not attached to land but does
2.generally
Finder has havetitle
title overoverlostitemsproperty,
imbeddedowner
in theofsoil.
locus has title over mislaid pr
b. Could
operty.
1.
2.
3.
A) TWhat
Terms
Elwes
doesissay
ofhave
v. the
the
Brigg
that
aright
lease
permissive,
Ð gas
the ofgas
maycompany
thecompany
affect
lessee?
possessory
leasing
ownership
leasedthe
right
allland
the
stronger
found athan
things that
boatPeel.
could
in thebeland.
mined from
B)theCould
soil,sayandthe
that the
boatgasis company
like a mineral
leased only
OR the particular minerals in the soi
l and the boatbelongs to the landowner
Facts: Peel
Property
Hannah
iv. v.Outline
Peel
has(pa10/5/10
111) that
house 10:49wasAMrequisitioned for soldiers. Hannah, a soldier,
finds a brooch in the house. Hannahturned it over to the police to search for ow
ner. NoDoes
Hannah
Issue: demands
ownerthewas
broach
owner
found, or the
of Peelland
damages.
claimed
on which
from the
police
finder
and found
sold. the brooch, have bet
ter title The
Analysis: to the
plaintiff,
brooch than as the
thefinder?
finder of the lost article whose true owner was
never found, has better title than thedefendant who was the owner of the premise
s. P found the brooch, which was lost, and tried to find thereal owner, who was
never found. P brought DÕs attention to the existence of the brooch. D never occup
iedthe land and was never in possession. Thus, he never possessed the jewel even
There
thoughishea law
ownedthat
thesays
land.you own things attached to your land, but this is chatt
el that We
Policy: isnÕt
wantattached.
to reward finders, especially honest finders, except against the
Rule:
true Locus
owner.owner doesnÕt have title over lost chattels not attached to land. Find
er McAvoy
v.
Facts:
Issue:
has Is
title
Plaintiff
v. Medina
the (against
finder
found
(pofall
a118)
apocket
but trueowner).
pocketbook
book left
on theoncounter
the counter
in defendantÕs
of a shop entitled
shop. to p
ossession Aaspocket
Analysis: the finder
book left of lostproperty?
on the counter is not lost property. Thus the finde
r of suchA mislaid
Policy: propertyitem
doeshas notahave
higher
titlebecause
chance of being
the property
recovered.
was We
notwant
lost.to encour
age items to get back to theirtrue owners. True owner more likely to come back t
o the Finder
Rule: shop tohaslooktitle
for overit. lost property, owner of locus has title over mislaid
a.property.
Notes: You can still serve the policy by giving the shop owner custody but th
e finder should get it iftrue owner is not found, or make arrangement to divide
theLost:
b.
1. Lost
property
v.true
mislaid
between
owner didnÕt
finderintentionally
& owner. or clearly place object somewhere. Title
to Mislaid:
2. finder except
true owner
asto true intentionally
owner. places object somewhere and subsequently fo
rgets
3. Abandoned:
to pick true
itup.owner
Titleintentionally
to locus ownerleft except
it because
as to true
no longer
owner wanted
(usually).
it. Titl
e toEncourage
c.
absolutely.
1.
2. Objects
Getfinder
backoftopeople
the
truelawto
owner.
regarding
be honest.
This islost,
The
first
mislaid,
law,andwhere
foremost.
anditabandoned
can be avoided,
property:
should not e
ncourage
3.
4.
5. Minimize
Maximum
Protect peopleto
utilization
(reasonable)
litigation:
lie and ofexpectations
Promote
shouldcertainty,
property encourage
of locusandowner.
have reward
clearWhere
honesty.
rules.there is a real prope
rtyProtect
A) owner inprivacy
themix,Ð donÕt
you have wantinterests
to authorize
and expectations
people to goaround
onto private
that property.
property look
ingWhere
things.
6. for Protect
you haveright
thesetoconflicting
exclude. policies, the law gets muddied. You get a bu
nchGetting
A) of casestalking
back to owner
aboutbest things
served
thatbyaregiving
not coherent.
to Peel, rewarding honesty, to Ha
B) Why not penalize the true owner for losing it? You might be licensing people
nnah.
to steal insituations. Finders keepers would still cause litigation over who foun
ambiguous
d first.
d.
1. Statutes:
CA Ð finder must notify true owner if known and restore without compensation; i
f > $100, take
to police.Outline
Property If less10/5/10
than $250
10:49andAMowner doesnÕt claim in 90 days, finder keeps it.
More valuableproperty may be advertised, and if not claimed, sold at public auct
vi.Shipwrecks
ion
a. Shipwrecksare not considered abandoned property, generally Ð generally claimed
by government orinsurance company. Usually litigation is between private party
andState
1. insurance
owns certain
company,distance
sometimesbetween
out, thenthe US govt,
locus then
ownerinternational
and/or govt. law and usu
allyHistorians
b. no locus and owner.
archeologists are very distrustful of applying the law of find
s. The modern salvagersare, at least public relations-wise, sensitive to this. S
ay Another
c. they willproblem
excavate is that
archeologically.
finding shipwrecks is expensive. WonÕt do it unless the
re Government
Encouraging
1. is some incentive.
these
should
excavations
regulate to is protect
also parttheofarcheological
the picture. interests, interests
of finder,
locus
vii. Treasure
owner.trueIfTroves:
owner,
you dotreasure
it right,buried
you canunderground
serve allforof safe
thesekeeping
purposes.
with intent t
o return.
a.
b.
1. Traditionally
In
If US, allinhidden
found moveable
belonged
$, property
andtotreated
the like
kingasanother
airplane,
found itproperty.
is mislaid and belongs to
3.
owner
2.
viii.
B.
i. If
Acquisition
General
found
of
Estray
plane.
rule:
inÐ property
ground
beasts
by IfAdverse
youwhose
but
owner
1)Possession
actually
deemed
owner
of land
is
abandoned
enter
unknown.
(p 127)
to exclusively
first finder
holdorand
hispossess
agent/bailee.
2) hos
tile to the true ownerÕsrights (in minority), 3) openly and notoriously, and 4) co
ntinuously
title
a. ÒActual
becomesforyours
entry length
andand
exclusive
ofisstatute
assumed
possessionÓ
oftolimitations,
have means
becomeusing
yoursthe
at property
point of as
entry.
the true owne
r would
under
b. Hostile
theusecircumstances
(state
it of mind):
(Howard
mustv.have
Kunto).
intent to claim the property of another. U
se Majority
1.
2. cannot beuses
Minority requires
authorizedby
Objective
hostility.
owner.
Standard: If other requirements of AP are met, hostil
ityIfisyou
regardless
A) implied,
say
of that
subjective
state ofstate
mindofismind.
irrelevant, then you are treating people wit
h base, thief-like
intentions the same as honest mistakes. This is the moral objection to objective
B)view.
If you say state of mind counts, litigating these cases is a mess. In the big
3.picture,
Claim ofitÕs right:
bettereven
Good faithif you
claim
end-thought
up rewarding
it wasa yoursA)
few thieves.
You can still be hos
tile to owner even if in good faithB) Courts more likely to award to person who
thought
who
c.
1.
2. Open
Statute
Owner
knowsand
they
ofheÕs
ofproperty
Notorious
had
limitations
trespassing.
a claim
shouldofbegins
right
be putwhen
than
on notice
possession/use
personby the use.
is open
You have
and notorious
to be able to
know that there isa trespass. It isnÕt fair to trigger the clock if you donÕt know a
boutForit,small
3. if there
encroachments,
wasnÕt reasonactual
foryou
noticeto to
knowowner
it. is required (Manillo v. Gorsk
d. If
i).
1. Continuous
owner reasserts right to property, then statute of limitations starts over
. This
2. Continuous
use betteruse isinformsthe
how the true ownerowner.would use the land under the circumstanc
es.
1. Western
Property
Statute
e. ofOutline
limitations
states 10/5/10
have shorter
10:49 statutes
AM of limitation, and usually have an addit
ional
A) Conventional
requirementthat
wisdomyou
is that
must this
pay real
cameestate
about b/c
taxesoftoRRhave
land.AP.RRs were huge lan
withOWWhy
downers
ii.
a. noHolmes:
way toPossessor
AP? effectively
haspolice
come totheexpect
land.continued use and access, and the tru
e owner
b. Economic:
has fedthat
if you (owner)
right byare
notnot
ejecting.
using it, someone else should be allowed to.
2.Property
AP takesistime.thereYou
tobehave
usedtoproductively.
do it for years.ThisIfissomeone
for themakes
good productive
of society.use o
f property
3. The economic
thatwould
explanation
otherwise
doesnÕt
lie fallow,
depend on
lawthe
saysstate
ok. of mind. There are other r
easons for notlooking at state of mind. It is hard to figure out and hard to pro
ve,Earning
ii.
a. and it Ðisand
Earning productive
almost
Sleeping
alwayssomething
economic efficiency
that happened
idea. APa earns
long time
titleago.
by his actions, g
ood works andsocially productive activity. This focuses on actions and intent of
b.theSleeping
AP. Ð looks at true owner. Penalize the true owner for sleeping on their r
c. Both are valid, but there are some cases that would turn out differently base
ights.
d onSquattersÕ
d. which onerights:
youthinkbook
of says
as thesquatters
main reason
neverforgetAP.rights, but if they are using
the land openly andadversely, there is no reason why they canÕt be APs. There is a
iii.
Facts:
lay Van
sense
Lutz
Valkenburg
ofbought
squatters
some
v. Lutz
that(pnear
land there
129)anisan
empty
understanding
lot. They traveled
btwn owner
across
and the
squatter.
lot, bu
ilt a small shack onit, grew vegetables and raised chickens on it. 30 yrs later,
Van Valkenburgs bought the emptylot and tried to kick the Lutzs off. In court,
Lutz conceded that the lot was owned by VanValkenburgs but argued for right to u
se the travel way and won (easement). Then Lutzbrought suit for ownership of the
Issue:
Rule:
lot through
Under
Was the NYadverse
whole of
statute:
possession.
the landpossession
Adverse Òusually cultivated
1) where itorhas improvedÓ
been protected
by the Lutzs?
by a s
ubstantialenclosure, or 2) where it has been usually cultivated or improved for
at least 15Theyears.
Analysis: proof fails to show that the whole of the land was cultivated and
improved
The gardenbywas theonly
LutzÕs.
on a small part of the land, the chicken coops were portable
and movedaround, and there was junk laying all around. Lutz said he knew at the
time it wasnÕt hisland. A fundamental concept of adverse possession is that the o
ccupation be Òunder claim oftitleÓ that is hostile to the true ownership. In a previ
ous suit, Lutz conceded that the land wasowned by the Van Valkenburgs rather tha
n declaring
Dissent: CourthisshouldnÕt
hostilitybeandmaking
asserting
decisions
his rights
on theasthefactstrue
but looking
owner. at the law a
nd Notice
Rule:
a.
1. whether
Notes:
Intent
totheowner:
totrialcourt
claimÒProtected
property
erredby
or substantial
mistakenly possessing
enclosureÓproperty
Ð court says
is notno,enough.
but there we
re markers.
Purpose of this is to give notice to others so that the world and the true owner
that I amclaiming it. When you take steps as an AP that gives the true owner th
e opportunity to kickyou off, the clock starts ticking on the statute of limitat
2. Color
ions.
b. You canofAPtitlepartvs.
of claim
someoneÕs
of right/claim
property, soofwhytitle.
doesColor
Lutz of
gettitle
nothing?
is where you
http://webcache.googleusercontent.com/search?q=cache:QBJnRbY3DuUÉshyF03.doc+proper
are making an adverse
ty+outline+and+cases&cd=26&hl=en&ct=clnk&gl=us Page 10 of 52
1. Rules for
Property
possession Outline
claim
thesebut
10/5/10
claims
you have
10:49
are somewhat
something
AM more
in writing
relaxed:that
shorter
givesstatute
you title.
of limitati
ons,Bilateral
e.
1. possession Monopolies
monopoly:
ofpart Two
of(Marengo
the
parties
landÐ locked
is constructive
cave problem,
into dealing
p 141)
possession
with each
of other.
the whole.
This can
lead to highnegotiation costs w/ each trying to get the best deal. This isnÕt eco
nomically
2.
A) Cavecoleum
Ad isefficient.
under
doctrine
two peopleÕs
is that person
properties.
who owns
Who land
owns owns
the cave?
what is in the air above
the
B)
C)andCould
This
ground.
under
issaya that
commons
person
problem.
who ownsTheythe bothentrance
have anowns
ownership
it. That
andperson
it is is
inefficient.
the only
one it
use whofrom
can their property. There is a single owner, and others donÕt have expecta
tions ofbeing able to use it. But what if there is more than one entrance? How a
bout Manillo
iii.
Facts: whoeverdiscovers
Gorskisv.bought
Gorskiait?
(p147)
lotButadjacent
then licensing
to lot owned
trespass.
by Mannillos. Gorskis made add
itions to the house, includingraising the house and extending the stairs. These
steps and the concrete walk extend 15 inches ontoMannillosÕ land. Gorski claims ti
tle by Is
Issue:
Analysis: adverse
a hostile
When possession.
Gorskisstate
builtof steps
mind required?
and path over
Was possession
property line,
open they
and notorious?
thought the
y were on their own land, but stateof mind is irrelevant. Maine doctrine (hostil
e intention) is rejected. Use must be open and notorious. Theencroachment was so
slight that Mannillo may not be expected to know of it even though he could see
Iftheactual
it is open path.
and notorious, GorskiÕs should pay reasonable price for the land (mo
dern trend).
Policy: Maine doctrine (hostile intention) rewards the intentional wrongdoer whi
le disfavoring
mistaken
Rule: Hostile
entrant.
state
theMaking
honest,
of mind
ownerrequirement
survey allrejected.
the timeForis small
an undue
encroachments,
burden. actua
l notice
a.
1.
2. Notes:torationale
Earning
Sleeping owner is Ðrequired.
rationale ÐGorskis
Mannillobuilt didnÕt
theeven
stepsknow he was sleeping on his rights and
reasonablycouldnÕt know. This is what the court adopts. Court says there must be a
ctual notice, butprobably would suffice to have Òinquiry noticeÓ Ð you have enough kno
wledge
b.
1. Property
to putinterest
rules
on youthe
andprotected
liability
duty tobyrules
inquire
property
further.
rule: canÕt take from owner without con
sent.
2. Property
All transfersare
interest protected
voluntary. by liability rule: Interest can be taken without
ownerÕs
c.
1. Doctrines
If theconsent
twoofparties
butonlyagree
agreed boundaries,
payment
on aofboundary
judicially
acquiescence,
but they
determined
estoppel
are mistaken,
damaged:and
forced
theretransfer.
is a
long period ofacquiescence (but perhaps shorter than S/L), then neighbors are es
topped
d.
1. Mistaken
Earlytocommon
deny
improvers
the
law:validityof
anything built
their on statements
the wrongandland,
actions
even innocently, belonged
2.toLater,
the landowner.
forced conveyance of land at market value or give landowner option to
buyIf
A)
B)
C)
Intentional
improvement.
takes up encroachment
innocent lots of land,often
encroachers ismaysomade
besmall
ordered
toasremove.
toremoved.
be trivial, relief may be denied.
Facts: Since
Property
Howard
iv. v.Outline
Kunto
at least
(p153)
10/5/101932,
10:49
theAMdeed to the land occupied by the Kuntos describe
d the lot adjacent to them rather thanthe lot they actually occupied. A survey b
y the previous owners showed that the deed was correct. TheHowards (occupying la
nd two lots to the east) had a survey of their land in 1959 and discovered that
theyactually owned the land of the Moyer house, and the Moyers owned the land of
the Kunto house. Howardstraded with Moyers the title of their land for the titl
e to the KuntoÕs land. Howard brought an action to getlegal recognition of their o
wnershipCanofsummer
Issue: the titleuse only
of theofland
thisoccupied
summer home
by the
be considered
Kuntos. continuous use as r
equired
Can an APforunder
adverse
colorpossession?
of title use the period of time immediate predecessors occ
upied to establish
Analysis: Summer usehisonlyAP?of a summer home is continuous use. This how an ordina
Aryperson
owner may
of this
tackland
the adverse
would usethis
use ofhome.
his predecessor even when none of the occup
ied land is included in thedeed. Tacking is permitted if successive occupants ar
e in ÒprivityÓ (mutuality of legal interest), and has beenused for cases where the o
wner believed that he owned more land than his deed stated. The claim of right o
f aperson who occupies a lot directly adjacent to the lot in his deed is no less
persuasive than the person whobelieves she is purchasing more than her deed des
Rule: Continuous use for AP purposes is measured by how an ordinary owner of the
cribes.
land would use it under thecircumstances. Tacking of AP time is permitted if su
ccessive
v.
a. Tacking
You canoccupants
(p 159)
tack on land
are inifÒprivityÓ
there is aofpiece
contract
of itorthat
blood.
isnÕt in the deed but you t
hinkYouitcan
b. is.tack on previous adverse possessorÕs time if you are in privity (a lega
l relationship) likeprivity of contract-one bought it from the other; inherited
it;You
1.
c. Series
gotcan
itofalso
astrespassers
a tack
gift.on previous
canÕt tack.
true owners if the property was transferred whi
le Sleeping:
1.
2. you wererationale:
Earning AP.
ShouldnÕtearned
you goitoutfrom
andboth
lookowners
at it before you buy it? First owner sl
eptIfDisability
vi.
a. andowner
so did
has(p
thenext
certain
161) owner.
ÒdisabilitiesÓ Ð minor, unsound mind, imprisoned, S/L is exten
ded to certainlength of time after disability is removed. Applies if disability
existed
b.
vii.
a. Also
Common
AP against
when
haslaw:
included
cause
APthedoesnÕt
ofgovernment
anyone
actionaccrued
runÒclaiming
against
(p162) govt.
from, Also
by, orsome
underÓ
Constitutional
such a person
provisions pr
otecting
1.
2.
3. Sovereign
State
Govt owns
statelands.
owns immunity.
1/3
in of
trustland,
Govtand
for the
isitpeople.
immune
is antounfair
claimsburden
or suit
to have
w/o consent.
them police it all
the time. The govtgenerally keeps this land for public to use. If govt was open
to OÕKeefe
iv.
a.
b.
Facts:
AP,
Usually
Adverse
theyv.
Georgia
shorter
would
Possession
Snyder
OÕKeefe
fence
statute
(pfound
of163)
itChattels
offher
of limitations
andkeep
paintings
(p 163)
people
thatout.
had been stolen in the 40s in an a
rt gallery. Gallery owner(Snyder) bought from Frank, who said he got it from his
report
father,paintings
who knewstolen
Steiglitz.
at theOÕKeefe
time, only
did not
much later. Snyder argues that statute
of limitations has run, andhas title through adverse possession (tacking posses
sion with
Issue: Is there
FrankÕs).
enough conflict of evidence for suit to be brought by OÕKeefe for
possessionS/L
Analysis: andwonÕt
titlestart
of thepaintings?
until the items are discovered or reasonably discoverabl
e as long as the owner has takenreasonable measures to locate the stolen items a
nd notify potential buyers that they have been stolen.
Transfer of
Property Outline
possession
10/5/10by10:49
subsequent
AM possessors makes it harder for the owner to
find it, and discoveryrule still applies. However, once it has begun, S/L doesnÕt
begin running anew if items change hands aslong as there is privity between pos
Discovery rule for AP of chattels: in appropriate cases, cause of action will no
Rule:
sessors.
t accrue until injuredparty discovers, or by reasonable diligence and intelligen
ce Discovery
c. should haveRulediscovered,
Ð in appropriate
facts thatcases,
formcause
thebasis
of action
of thewill
action.
not accrue until in
jured
or by reasonable
party discovers,
diligence and intelligence should have discovered, facts that f
ormPuts
1. the the
basisburden
of theaction.
on the true owner. We look to the conduct of the true owner,
not the AP, nothow open AP is but how hard true owner tries to find it. In real
property,
2. Clock doesnÕt
we alwaysstart
lookagain
toactions
if possessor
of AP rather
changesthan
andtrue
theyowner.
are in privity. This is
3.toBona
protect
fidethepurchaser
bonafidecannot
purchaser.
get good title from a thief but can from other sco
undrels
d. Demand(boughtwith
Rule: AP clock
bad check,
startsetc.)
running
whoonly
haveafter
a voidable
true owner
title.demands return. On
ly Federal
e.
rule.
1. NY has American
Native this
law trying Graves
to getProtection
Native American
and Repatriation
artifactsAct andofburial
1990 items
(p 176)to Nativ
e Americans.
2. Can the museums claim AP? No. Museums have to give it back (complicated issue
s with
A) Righttribesthat
of possession
donÕtisexist)
possession
unless,obtained
museum with
can show
the voluntary
right of possession.
consent of the
owner or tribe (and museum must show this) unless results in 5th amendment takin
individual
g ofproperty
B)
C.
i. Federal rule:
Acquisition
General lawwithout
trumps
by AGift
valid
compensation.
state
(pinter
178)
lawvivos
aboutgift
AP. must include 1) intent, 2) constructiv
e, Constructive
3)
a.
1. symbolic or Until
acceptance.
Delivery actual
delivery
delivery
delivery,
Ð handing
has taken
over aplace,
key orgift
something
is not that
complete.
gives access to th
e subject
of
2. the gift.
Symbolic matter
delivery Ð handing over something symbolic of the property given (a wr
3. Purpose of delivery requirement Ð partly to make donor feel and understand what
instrument).
itten
Also
b.
ii.
they
Acceptance
Inter
proof
are vivos
doing.
thatisgift
the
assumed
donor
Ð gift
ifintended
it wouldtobewhile
completed andbeneficial
actually
donor isto
gave
alive.
thethedonee.
gift. be revoked afte
Cannot
r it Gift
iii. is completed.
causa mortis Ð gift given in consideration of death. These gifts are aut
omatically revoked and goback to the donor if the donor survives but cannot othe
rwise
a. Giftbecausa
revoked.
mortis requires stronger proof than inter vivos gift. If the gift
is valid, it circumvents thewill. Wills require a lot of formality but gifts donÕt
. The easier you make it for people to claimgifts causa mortis, the more you und
ermine
iv.
On
Facts:
deathbed,
Newman
the v.
wills
Van
BostPelt
statute.
(p gave
180) Newman keys to bureau, doors in house and told her sh
e could haveeverything in the house. Newman kept the keys. Bost, administrator,
sold everything and kept it, includinglife insurance policy in the bureau and fi
re insurance
Newman sues foron furniture
the piano andVan life
Pelt insurance
had boughtpolicies
for Newman.
as gifts causa mortis and
for there
and
Was
Issue:
her bedroom
insurance
validmoney
property
delivery
on theofpiano
the gifts
as gifts
to Newman
inter from
vivos.Van Pelt, both of the gifts
causa mortis and the gifts
Analysis:
Property
inter vivos?
Outline
Gifts causa
10/5/10
mortis:
10:49There
AM was valid delivery of any article of furnitu
re that could be unlocked by the keysgive to Newman, as these articles could not
be manually delivered (constructive delivery is enough). Therewas not valid del
ivery of the life insurance policy because it could have been manually delivered
Gifts
andbureaus
inter vivos:
are notThere
intended
was valid
or expected
deliveryto of
store
NewmanÕs
such things
bedroomofbelongings
value. because
they were boughtfor her during Van PeltÕs lifetime for he exclusive use and contr
ol. There was not valid delivery of thepiano because Van Pelt insured it as his
Dicta:Constructive
piano.
Rule: no such thingdelivery
as symbolic
is sufficient
delivery where
for gifts
the donor
causa plainly
mortis. intends to mak
e the gift and the items are notpresent or are incapable of manual delivery beca
use of their size or weight. When items are present andcapable of manual deliver
y, If
a.
1. manual
Notes:
the bureau
deliveryhadmustbeenbeahad.
safe and he gave her the keys, it would have been de
livery. A safe isintended for holding things of value, while bureaus are not des
igned
2. Court
to seemed
hold things
to rule
of differently
value. on facts found by the jury although appellat
e court
v.
Facts:
GruenFather
isv.supposedto
Gruen
(Victor)
(p 187)
accept
wrote letter
the factsto son
found(Michael)
by the jury.
giving him Klimt painting f
or his birthday. Father wanted tokeep possession of painting during his life (ke
ep a life
stepmother
Issue: Caninterest).
awants
validtointer
keep
Son vivos
never gift
it. had possession.
of chattel be Father
madedied,
where the owner reserves
a life estate
Analysis: Thereandisthe
a distinction
donee neverbetween
hasphysical
ownership
possession
and possession.
before donorÕs
The correct
death? t
est is whether the donor intended thegift to have no effect until after the dono
rÕs death (making it a gift causa mortis), or whether he intended it totransfer so
me present interest. Once a gift is made it is irrevocable, and donor is limited
to rights of lifetenant, and the donee gets the remainder. Under a will, neithe
r title
When a gift
nor is possession
of valuevests
to theimmediately.
donee, acceptance is assumed, but Michael also ga
ve clearRequirement
Policy: and convincingevidence
of delivery is thatnotherigid
accepted
or inflexible
it. but must be tailored
to suitA valid
Requiring
Rule: theactual
circumstances
inter
delivery
vivos gift
of this
in theofcase.
case would
chattel canbebeartificial.
made where the owner reserves a
life estate and the donee never hasphysical possession before donorÕs death. Son
getsAll
System
III.
A.
i. Feudalism
theland
Possessory
ofpainting.
Estates
was
(p owned
Estatesby(pthe197)
197-205) king. He gave possession to lords and barons, who h
ad an obligation toprovide certain number of soldiers to the king. Lord could gi
ve possession of a parcel to an underlingin exchange for soldiers or other oblig
ation
B.
i. Estates
Estates:
(seisin).
(pan195)
interest in land that has two characteristics: it is or may becom
e possessory,
a. Courts interpretand itambiguous
ismeasuredgrants
in terms
as the
of largest
duration.estate possible (White v. Br
ii. Freehold: no ascertainable termination date, includes fee simple, life esate
own)
.a. Freeholder has seisin Ð possession with duty of feudal services. Passing seisin
had to include formaldelivery of a piece of the land (clod of dirt, branch) whi
le onNonfreehold:
iii. the land. (phave 238)an ascertainable termination date, includes tenancy for y
ears,
tenancy
iv.
a. Leaseholders
To
People
periodic
carry
at canÕt
will,
outtenancy,
donÕt
your
(tenancy
make intent,
haveany
up atseisin.
sufferance).
other
you have
(p to
kinds
239)fit
of estates.
it into the existing pigeonholes. T
here is too much
i. Fee
Property
instability
Fee
C. Simple
simple:
Outline
(pif209)
property
Absolute
10/5/10ownership
owners
10:49 have
AM (used
freeform
to beability
called fee
to recreate
simple absolute),
rights. as fa
r asMost
ownership
a. anyunrestricted
property
can be absoluteand longest
(ownership
estate.
is almost
It is permanent
never absolute).
and of unlimited durati
ii.Heritability
on
a. How Fee Simple Ð land
Developed
wasnÕt(powned
209)by possessor but held by possessor as a tenant s
o couldnÕt go toheirs. Then heirs paid for it, then it went automatically to heir
forAlienability
b. continued payment.
Ð later became alienable and always passed to heirs. Tenants could
iii.
a.
b.sell
Common
Modern
Creation
withtrend:
law:
lordÕspermission.
ofÒToÒTo
feeA A.Ó
simple
and his(pheirsÓ
When language
211) ÒTo
Words
isA unclear,
used to convey
foreverÓ courtsfeeprefer
simple:
fee simple estates.
a.
iv.IfInheritance
a person dies of Fee
intestate
Simple (no
(p 212)
will) property goes to heirs. You donÕt have hei
rs Heirs
b. until are
afterchildren
you die.and issue (their children), parents, collaterals (siblings
, aunts,
1.
c.
d.
D.
i. Nowyou
If
Wills:
Life
Lastsspouse
Estate
nephews,
for
donÕt
person
the
gets
(phave
who
life
cousins).
221)
a gets
portion.
any
of the
heirs,
yourperson.
property
it escheats
Always
underfollowed
toyour
the will
state.
by aisfuture
your devisee.
interest. Perso
n w/Typically
a.
b. Youlife
canestate
sell
measured
your
has life
abylife
the
interest.
estatepur
life of theautre
person
vie.who holds the estate, but can be
c.measured
ii.
a.
1. ÒTo
Duties
LT
Waste
may
A for
by LT
doctrine
of
not someoneelseÕs
life,Ó
waste or ÒTounreasonably
A until
life.he dies,Ó
decreaseÒTothe
A and
value
at of
histhe
death
property
to hisfor
childrenÓ
the p
erson with theremainder interest. Also must pay taxes, make repairs, pay interes
t onLife
2. mortgage.
tenant canÕt
No obligationto
sell, can only
insure.
lease during lifetime, canÕt get a mortgage for
repairs,
b. If a mine
may was
not open
beablewhen
to donor
use theisproperty
alive, itinismanywithin
wayshisbecause
expectation
of waste.
that lif
e estate will mine thecoal, and remainder people canÕt stop her. BUT, if a mine is
c.later
Wastediscovered,
doctrine influenced
life tenantbywouldhave
the age oftothe getlife
remainderÕs
tenant. Gets
permission.
more discretion
about managing theproperty the longer her life expectancy is. Why? She has more
incentive for long termmanagement. The older she gets, the more her interest wi
ll Affirmative
d.
1. differ from waste
the permissive
and remainder
Ð injurious,
wastevoluntary
(p 235) acts that have more than trivial effec
ts Generally
A) and thatsubstantially
speaking, LTreduce
can make
thechanges
value ofiftheit doesnÕt
property.depreciate the value of t
he Permissive
2. property. waste Ð failure to take reasonable care of the property. This is a q
uestion
e.
negligence.
1. Adverse
If APofproperty
Possessionwhileofowned
property
in fee
heldsimple
in lifethatestate
is split into life estate and r
emainder
AP
A) was possessing
Remainderman
during hasS/L,
against
an ownership
FS owner.interest that has been snatched away by AP. R l
oses
2. If
Property
property
B) R can
yousue
Outline
byenter
LTÕs
LT against
for
10/5/10
inaction.
waste.a10:49
life estate
AM owner, and statute runs, AP gets life esta
te for original lifeestate ownerÕs life. If LT dies before statute of limitations
runs,White
iii.
Facts: clock
Lidev.left
begins
Brown
heragain
(phouse
221)
attoLTÕsdeath.
sister-in-law (White) in a handwritten will for Wh
ite to live in and not sell. Lide leftpersonal property to niece Sandra (WhiteÕs d
aughter).
Issue:
Analysis: DidIfWhite
Lide
theleave
alleges
expression
a life
she of
was
estate
the
vested
will
to White
with
is doubtful,
aorfeefeesimple
simple
the doubt
title.
title?is resolved in fa
vor of an absolute estate. Lide did notprovide a person who would inherit the re
mainder of the property after WhiteÕs life estate. There is notenough evidence of
intent to pass life estate to overcome the lawÕs strong presumption against it. Co
urt willdiscard provision that property will not be sold because the law resists
Dissent:
absoluteThe restraints
limitation on that
alienation.
the house was Ònot to be soldÓ indicates that Lide inte
nd If
Rule:
a.
1. to White
Notes:
give ahad
Court interprets
lifea life
estate. ambiguous
estate,
You canÕtjust
heirs
grants
would
strike
to meanthis
have the largest
remainder
part of(inestate
thefact,
will.
possible.
vested remai
nder). WhitewouldnÕt be able to leave house to her heirs when she dies because she
2.only
But,hassince
a life
Jessie
estate.
didnÕt provide a person to get the remainder, she probably di
dnÕt intend a lifeestate. If she had said Òand then go back to my heirs,Ó or Òto this ot
herCourt
3. personinterprets
afterwards,Ó
ambiguous
thiswould
grantsimply
to mean
an intent
the largest
for a life
estate
estate.
possible. Why? M
akes the economymore efficient because people will use larger estates to a great
er Why?
b.
1. extent.
Law isWehostile
want property
to absolute
to bedisabling
flexible and
restraints
used inonthealienability
highest and best way pos
2. Anything that does not restrict sale absolutely is ok (not be sold to corpora
sible.
tion; for 5 years; toEvelyn as long as she doesnÕt sell it, then back to my heirs)
. This
which
3. Promissory
isisallowed
a forfeiture
restraint
(p 228). restraint,
Ð you get it if you promise not to transfer it, and your p
romise
c.
1. Valuation
Use isenforceable
life expectancy
of Life Estate
under
tables,
contract
andfigure
Remainder
remedies.
out how
(p 229)
much per year of the interest goes
multiply
2.
iv.
Facts:
toRemainder
theWeedon
Baker life
byv.years
tenant,
is
Weedon
hadvalue
3ofgrandchildren
(plife
at230)
end
expectancy.
of lifefromtenancy
a previous
minusmarriage.
life estateHe left
value.his farm as
life estate to his current wife(Anna), then to her children upon her death, or t
o his grandchildren if Anna had no children. Anna has nokids, so WeedonÕs grandchi
ldren are the remaindermen. Previously they worked out selling to govt aneasemen
t for a highway. Anna doesnÕt have enough money to live on and wants to sell most
of the Would
invest
Issue: farm,proceeds,
the sale of theand land
live and
off investment
of the interest.
of the proceeds be in the best inte
reststheofremaindermen
and
Analysis: both
Grandchildren
the life(three
tenant
donÕtgrandchildren)?
(Anna)to sell it because in 4 years, it will be worth
want
a lot more. Sale of the land isnÕt inthe best interest of all parties Ð it would re
sult in great financial loss to the remaindermen. Perhaps part ofthe land can be
Rule:
sold Deterioration
now, but only and if allwaste
parties
of thecanproperty
agree. is not the exclusive and ultimate
test to be used in decidingwhether to sell land affected by a future interest, b
ut Bad
a.
1.
alsodecision.
Notes: whether aGrandchildren
sale is necessaryhave no
forsentimental
the best interestsof
attachment,alljust
parties.
greedy.
i. GeneralOutline
Property
Defeasible
E. EstatesA10/5/10
rule: (p 240)10:49
holder of a feeAM simple defeasible is subject to a divestment,
a.butTraditional:
b.
1. Always
In may
FSDstill
followed
and FSSCS,
hold,
youbycanÕt
use,
grantor
a future
andconvey
transfer
hasinterest.
a reversion
forever asby
(future
long
willasor
interest)
the
inter
condition
vivos transfer.
is met. A re
version
property.
2.
ii. Modern:
3 types:
isnÕt
Amost
reversion
Fee
actual
states
simplecanallow
determinable,
onlyinter
passvivos
byfee
inheritance.
transfer
simple subject to a condition subseque
nt,Grantor
a.
1.
2. Fee
feesimple
simple
getsthat
determinable
subject
a possibility
is divested
toexecutory
(FSD)
ofautomatically
reverter:
limitation.
thewhen
grantor
a particular
keeps anevent
interest
happens.
that ve
stsTransferee
when
A) automatically
the event(who happens.
gets the future interest) has an executory interest. Transfer
ee Purpose
named
3.
A)
4. canorlong
Words
ÒSo beused
canisas,Ó
betobyprevent
create:
Òuntil,Ó
operationproperty
Òduring,Ó
of lawfrom
(grantor
Òwhile,Ó
being put
or his
Òrevert
to aheirs).
tocertain
grantorÓ
use, or ensure tha
t itS/Lisfor
5. onlyAPused
startsfortoaparticular
run from the purpose.
time of creation, usually very long or ther
e isDoesnÕt
A)
b.
1. Laches
Feenosimple
limit.
bars
automatically
subject
relief to whenend
a condition
thewhen
grantorÕs
thesubsequent
event
delay
happens
causes
(FSSCS)
butinjury
may beordivested
disadvantage.
at the gra
ntorÕs
2. Courts
electionwhen
prefer FSSCS theandevent
willhappens.
construe ambiguous language to mean FSSCS. Court
presumeslargest possible estate for the grantee. Law doesnÕt like automatic forfe
A) CA: there is no FSD. If you use words to pass this fee, you are passing FSSCS
iture.
.3. Grantor gets right of entry (power of termination) Ð the future interest retain
ed Must
4.
A) by thetransferor
Words indicate
used to thatcreate:
to1)divest
the grant
a FSSCS
is subject
when thetoevent
a condition:
happens. Òprovided that,Ó Òhoweve
r,Ó Òon thecondition thatÓ AND 2) the grantor may reenter the property and terminate t
he Can
5.
c.
1.
2.
3. estate.
S/L
Fee
Estate
Example:
forpasses
simple
use APTosubject
same starts
A,language
tobutatoif
torun
third
executory
property
as whenand
party
FSD the
instead
used
limitations
FSSCS,
condition
forofbut
x,the
then
happens
(p
shifts
grantor.
285)
to interest
B.and is usually
to a third
short.
party.
Facts:
iii. Marenholz
Huttons gavev. County
pieceBoard
of land of to
School
School
Trustees
Board Òto
(p 242)
be used for school purposes
only.Ó They transferred thewhole land and the interest in the school land to Jacqm
ains, HuttonÕs
After who laterdeath,transferred
their only
both heir,
to Mahrenholzes.
Henry, released any possibility of reverter
or right of entry to schoolboard, and also gave all interest in school land to
Mahrenholzes. School started storing stuff on the landinstead of holding classes
.Issue: 1) Could Mahrenholzes have acquired any interest in the school land from
2) Did the1)language
Jacqmain?
Analysis: You canÕt of transfer
the deed reversion
give FSSCSbyorwill
FSD?or inter vivos gift but only by
inheritance.
2)
property.
If the language
Reversionof theisnÕt
deedactually
gave FSD, Henry would have become owner of the pr
operty automaticallywhen condition was broken. He would then be able to transfer
all interest in the land to the Mahrenholzes. If
it gave FSSCS,
Property OutlineHenry
10/5/10
could10:49
become
AM owner of the property only if he rentered the
property.
unable
Here
The
Rule:phrase
ittowastransfer
HeÒto
awould
fee
be used
simple
be fordeterminable.
ownership ÉonlyÓ
to theindicates
Mahrenholzes.
the granting of fee simple determinable fo
llowed by a possibilityof reverter, which automatically gives ownership to grant
or or his heirs when condition is broken. Grantor orheirs can only transfer owne
rship
only
a. Note:
after
to To a reentry.
third
quitclaim
partyisafter
to give
property
whatever
has youreverted
have.toYouthem
areifnotFSD,
saying
or ifwhat
FSSCS,
you
have. It is aconveyance of whatever, if any, you have. This is kind of what Henr
y didPalm
iv.
Facts: inDeedtransfer
Springs
land tovtoMahrenholzes.
Living
city asDesert
long as
Reserve
used as(p a265)
reserve. If not, then to Living De
sert Reserve. City wanted to make agolf course, so brought an action for condemn
ation (government taking land for fair market value). In acondemnation, party wi
th right of reentry doesnÕt get anything, only the party holding the FSSCS gets pa
in this case,
id,
Analysis: Citytheis trying
govt itself.
to get around the condition in the FSSCS. The action to
build the golf course(and not use it as a reserve) is imminent, so city has vio
lated
v.
a.
b. Defeasible
Leave
Thistheistocondition
using
myLife
wife
property
Estates
and LivingDesert
until she
to
& control
the
marries
Marriage
has
behavior
again.
aissue
right
(lawtoeven
reenter.
more hostile to this inv
asion
Mahrenholz
c. Theofmarriage
privacy).
is about
restrictions
controlling tendhownotproperty
to be enforced.
is used. Courts will enforce it if
HÕs intent was to supporther while unmarried, but if H intended the restriction to
courts
IV.
A.
i.
ii.
keep
Future
Not
Future
herdonÕt
merefrom
interests
Interests
interests
expectancies
enforce.
gettingdo
(pmarried
269)
not
butentitle
presently
again,theexisting
holder toproperty
possession
interests.
but may become poss
essory
B.
i.
a. Future
Reversion
Interest
in Interests
theleft
Ðfuture
theover
right
infor
thetothe
Transferor
future
ownerpossession
when
(p he270)carves
by theouttransferor
a lesser estate without s
pecifying a third partyremainderman. Reversion to transferor if no on is specifi
ed At
b.
c.
1.
A)
B)
d. to common
Ex:
To
If get
ABit
Ooutlives
for
out
conveys
does
thelives
life
law,
estate
not blackacre
then
B,
become
A,
reversions
reversion
after
reversion
to Bpossessory,
theare
Òto
and will
Aprior
his
becomes
forbecome
transferable
heirs
estateends.
life.Ó
it divested
isifpossessory
divested.
BO by
hasfrom
survives
will,
a reversion.
theinheritance,
in Athe
grantor.
grantor.and inter vi
vos Possibility
ii. transfer. of Reverter Ð The transferorÕs interest following a fee simple deter
a. Inheritable,
minable.
b. Automaticallybut vests
under
whencommon
specified
law noteventtransferable
happens by will or inter vivos (al
thoughRight
iii. modernof Entry
trend Ðisto
Theallow).
transferorÕs interest following a fee simple subject to a
condition
a. Transferor subsequent.
must reenter after event happens to vest. When transferor reenters
, heRemainders
C.
i. Future
terminates
Interests
Ð future
the infeesimple.
Transferees
interest in a(ptransferee
272) which can become possessory only u
pon the expiration of a
prior possessory
Property Outline interest
10/5/10 10:49
createdAM by the same instrument. Remainders never follo
w fee
a. Vested
simple.
remainder Ð remainder not subject to a condition precedent that is given
1.toIndefeasibly
a third personwho
vestedisremainder
expresslyÐ certain
determined.to become possessory by transferee or h
is Vested
A)
2. heirs.
Ex: To remainder
A for life,subject
then totoB.partial divestment (subject to open) Ð there are pa
rties whoseinterest is certain to become possessory, but there may be other part
iesEx:
A) notToyetA for
ascertained
life, remainder
whowill toshare
BÕsthechildren
interest.
and their heirs. If B already has
one or more
children and may have more, the existing children have a vested remainder subjec
t topartial
3. Vested remainder
divestment.
subject to divestment (subject to complete disfeasance) Ð vest
ed remaindersubject to a condition subsequent. Although transfereeÕs interest will
become possessory ifprior estate ended today, there is a possibility his intere
st May
A) willexpire:
never become
To A for
possessory.
life, then to B for life. While A and B are alive, B has
remainder
vested subject to divestment b/c he may die before his interest become posses
B) Executory
sory.
I) May be divested
interest:
by To A for life, then to B and his heirs, but if B dies wit
hout to
then issue,
C. If B died without issue, his interest, although vested now, will be c
ompletelydivested
II) Right of entry:andTogoA for
to C.life, then to B and his heirs, so long as always us
ed forPower
III) achurch.
of appointment:
(transferorTocanA for
reenter
life,ifremainder
conditiontosubsequent
A as A appoints,
occurs) but if A
C)does
To distinguish
notappoint any,fromthen
contingent
to B andremainders:
his heirs.If condition is contained within t
he grantingclause, it is a condition precedent and therefore a conditional remai
nderthe(Òbut
If granting
ifÉthen
clause
toÓ).stands alone and a subsequent clause takes it away, the r
emainder
I)
4.
5. Transferable
If unclear,
first
isvested
future
vested
by(ÒÉ,then
inheritance,
interest
remainder
ifÉÓ).
is awill,
isvested
preferred.
inter
remainder
vivos.in fee simple, the second futu
re Contingent
b. interest inremainder
atransferee
Ð remainder
will be anot divesting
yet vested
executory
becauseinterest.
1) given to a third par
ty not yetascertainable OR 2) made contingent on some event other than the natur
al Transferee
1. terminationnot of yet
the ascertainable
priorestate (subject
Ð eithertobecause
a condition
not born
precedent).
or will be determine
d bySubject
A)
2. Ex:future
To Atofor
events(for
a condition
life, then
instance,
precedent
to AÕsheirs
eldest
Ð aofcondition
son.
a livingthat
person).
must be met before remainde
r becomes
vested.
A)
3. Ex: To(Condition
Alternative
A forcontingent
life,
subsequent
thenremainders
to BÐ and
condition
BÕs
-Oneheirs
thatifends
party subject
B survives
the to
interest)
condition
A. precedent,
andToopposite
the
A) theA for
otherlife,
condition
to then to precedent.
B and her heirs if B survives A, and if B doesnÕt surviv
e A,Not
and
4.
A)
5.
6. Destroyed
Can
Subject
her
then
become
transferable
heirs.
totoif
CRAP.
vested
doesnÕt
undervest
common
by thelaw,endbutoftransferable
the previousbyestate.
inheritance, will in a
ll JX now and byinter vivos transfer in most JX.
7. If first
Property Outline
future10/5/10
interest
10:49is aAMcontingent remainder in fee simple, the second
future
c. Courts
interest
preferinvested
atransferee
remainder willandalso
condition
be a contingent
subsequentremainder.
over contingent remai
nder and conditionprecedent. Court will construe ambiguous language as the forme
ii. Executory Interests Ð Future interest in a transferee that cuts short (divests
r.
) a priortransfereeÕs
another interest: eitherinterest1) (shifting executory interest) or 2) the transferorÕs i
nterest
a.
1. Feefee
If simple
(springingexecutory
simplesubject
determinable
to an executory
interest)
is followed limitation.
by an interest
(p 284)in a third party rather
than a grantor, it is afee simple subject to an executory limitation. The execu
toryExecutory
b. interestinterests
doesnÕt, arein this
treated
case,ascutshort
contingent
theinterests
prior estate.
because they are subj
ectEx:
c. to ÒTo
a conditionprecedent
A for life, then to andBdoandnothervest
heirs,
untilbutthey
if Abecome
is survived
possessory.
at his death
by any children, then tosuch surviving children and their heirs.Ó A is alive and h
as Btwohaschildren,
1. vested remainder
C and D. in fee simple subject to divestment by the executory i
nterest
D.
i.
a. Ruleinterest
Common
No inLaw
Against
C and
Rule
isPerpetuities
Dif
good
(pC302)
and D (pp
unless outlive
it must
302-306,
A.vest,326-35)
if at all, not later than 21 years a
fterEx:some
1. to Dlife
forinlife,
being(validating
then to her first life).child that reaches 21. D is the life in
b. Applies to contingent remainders (subject to a condition precedent) and execu
being.
toryDoesnÕt
c.
1.
2. Wanted
Often
interests.
just
toapply
limit
passed
Doesnot
when
thethrough
possessory
control
applystrawmen
toofestate
vested
the todead
remainders,
and
gethand.
future
aroundinterest
reversionary
it. is ininterests
charitable organ
3. It is a classic ÒruleÓ rather than a standard. It doesnÕt discourage wealth being c
izations.
ontrolled for along time, just gives money to lawyers who could figure out a way
4.around
Tax laws
it. provide the incentive and means to limit long term control of dead h
and. The morecontrol you exercised, the more it was taxed. This has overshadowed
ii.
a.
1.RAP.
Wait-and-See
Contingent
Wait-and-See interest
for
Doctrine
Common
is valid
(pLaw326)
Perpetuities
ifÐitmanyactually
JX Period
stopped
vestsusing
withinRAPtheorcommon
modified.
law perio
b. Wait-and-See for 90 years: Uniform Statutory Rule Against Perpetuities (USRAP
d.
)1. Trusts
E.
i. Wait andÐ(pptrusts
see287-293,
if combined
it vests
335-338)
for 90interests
legal years after (lawinterest
ct Ð rigid
is created.
rules) and beneficial in
terests
questions
a. Trustee
(equity
of-Person
justice)
ct who
Ð is bound by law to carry out the trust in the interest of
Trustee
1.
2.
theTrustee
Held
beneficiaries.
is can
to the respond
high Òlegal
standardownerÓ
toofchanging
care.
and hascircumstances
duties spelled without
out inhaving
the trust
to goinstrument.
to court f
or Beneficiary
b. permission. Ð the Òequitable ownerÓ and has superior rights. Holds Òequitable interes
tsÓEx:
c. or OÒinterestsenforceable
conveys Òto X in trust in to
equityÓ
pay income to A for life, then principal to AÕs c
hildren
1.
2.
3. Ahasan
AÕs
Ohasan
children
whoequitable
surviveA.Ó
havereversion
life
an equitable
estate. and gets
contingent
property
remainder.
back if none of AÕs children survi
ve A
Facts:
Property
ii. Swanson
Swanson
Outline
v. died
Swanson
10/5/10
testate.
(p10:49
288)HeAMcreated two trusts in which his wife, Gertrude,
had a life estate with the remainderfor their nine children. One of the children
, died1:childless
Trust allows Gertrude
and lefttoalldesignate
his property
othertobeneficiaries
his wife, Peggy
of the
(P)trust,
inhis and
will.if n
ot, it passes
divided equally. to If
nineanychildren,
child dies, their share goes to his/her surviving childr
Trust 2:Remaining assets divided equally into 9 shares, one to each child or for
en.
Issue:
the then Wassurviving
BennieÕs interest
issue ofeachin his
deceased
fatherÕs child.
trust a vested remainder, thereby passi
ng to his Trust
Analysis: wife after
1: There
his are
deathunder
immediately
his will?
identifiable persons who would take if
the life estate ended = vestedremainder interest. There are two conditions subse
quent that could bring about total defeasance but neitherhappened, so BennieÕs int
erest 2:
Trust is Immediately
fully vested.identifiable beneficiaries if the life estate ended. Court
takes ÒsurvivingÓ children to bea condition subsequent rather than a condition prece
dent because of lawÕs strong preference. A child dyingbefore Gertrude but leaving
children who survived could bring total defeasance of the vested remainder, butt
his didnÕtonehappen.
BennieÕs ninth interest passes to his wife under his will because 1) his remai
nder was vested, 2) nocondition subsequent occurred before life estate ended, 3)
Rule:
no language
If a beneficiary
in will plainly
of a trust
showsdies
different
beforeintent.
the end of a life estate, his rema
inder can pass to a person designatedunder his will if his remainder was vested,
and no condition subsequent that could bring about defeasanceoccurred before th
e end
a.
1.
2. Notes:
Gertrude
Law ofhastheahad
lifea life
preference
estate.
estate
to construe
and waslanguage
a trustee.of ÒsurvivingÓ to mean surviving the te
3. Law has preference for condition subsequent rather than condition precedent b
stator
ecause wants thecontingency to be destroyed and the interest to vest as soon as
iii.At
possible.
a.
1. Dynasty
Dynasty
first,trusts
TrustsÐ (pp life
successive 335-338)
estates could endure for as long as RAP allowed tax
-free
2. Now,because
Ògeneration-skipping
noestate tax leviedtransfer
at end
taxÓofdue
lifeatestate.
end of life estate if passes to ne
xt But,
A) generation
amt upandlevied
to $1 million
at highest
($2 milrate.
for married couples) is exempt. So, can cre
ateConcurrent
trusts
V.
A. $ 1and million
successive
Estates Ðlife
estates Common
two estates
or more
Law Co-ownership
tax
people
free:have
tax-exempt
(p 339) possessory
present dynasty trust.
and undivided i
nterests in the whole ofthe same property: Tenancy in common, joint tenancy, ten
ancyTogether
i.
1.
2.
3.
b.
ii.
a. Tenancy
Separate
Interests
May
Each
No
Joint
byright
bemust
thetenancy
conveyed
inare
entirety.
but
of
may
have
common
survivorship
undivided
regarded
beaseparately
unequal
right asto
interests
apossession
by deedinowner.
single orwhole
ofwill
the
Each,
ofand
whole.
thein
atproperty.
differentowns
theory, times.
the undivided
whole
b.
1.
2. FourofÒunitiesÓ
Time:
Title: the
each
mustproperty.
must
acquire
must
acquire
be present
titleinterest
by the same
at theinstrument
same timeor by joint APA) Never can a
riseInterest:
3. from inheritance
must havew/o equal
willundivided
or othershares
act ofand lawidentical interests measured b
y duration.
2. Survivorship
Property
4.
A)
B)
c.
1. Possession:
One
Also
Rightcan
required
Outline
of voluntarily
survivorship
each
isfor
extinguishes
10/5/10
automatic
must
TIC.give
10:49
Ðhave
cannot
exclusive
and
the
aAMright
not
decedentÕs
be something
passed
to possess
possession
by you
interest
will
thecan
to others.
or
whole.
rather
inheritance.
change
than
withpassing
your will.
his inter
estFederally
Therefore,
3. to the no survivor.
taxed
probate.
according to portion of property due to decedentÕs consideratio
n. Any
d. Statetransfer
taxes usubased
of interest on JTÕs
destroys
share.the joint tenancy and can be so destroyed w
ithout
1. If one
theJTconsent
transfersof allJTs.
interest to a third party, that party becomes a tenant in
common with respectto the other tenants, but if there are two or more other Ts,
2.they
If one
are JTstillconveys
jointtotenants
anotherwithrespect
JT, joint tenancy
to each isother.
severed only for the share
conveyed,
e. In somenot JX,forany
there must
of thebeotheran express
shares.provision of survivorship in order for J
T toUnlike
iii.
a.
2.
b.
1. LawTenancy
Some
Can
Divorce
Allowed
Like
bebe
presumes
created
JX
JT created
JT,
have
terminates
only
(requires
bycanin
tenancy
no
theonly
~JT.
entirety
4half
TE.
byinconveyed
unities)
be husband
the
common
(pstates.
341)
but
absent
and
toalso
awife
third
clear
requires
(HIparty
contrary
allows
marriage.
jointly
others).
indication
and with consent of
c. Creditor
both.
d.
e.
iv.
a.
1.
2. Right
No
Considered
Common
Probate
Avoidance
probate,
tolaw
Ðcan
is
survivorship
judicial
tomarital
presumes
of
costly
seize
holdand
probateastenancy
supervision
JTÕs
deduction
oneproperty
(p
time343)
person
consuming.
byonof
theduring
estate
under
decedentÕs
entirety
the
taxes.
lifetime,
law
inproperty
conveyances
severing JTto and
H & creating
W. TIC,
b.butRiddle
v.
Facts:
Survivorship
ifMr.
waits
v.& Mrs.
Harmon
untilafter
avoids
Riddle
(p 345)
probate
death,property
owned b/c
there
decedentÕs
isinnojoint
interest
interest
tenancy.
toisseize.
terminated.
Before her death, Mrs.
Riddle conveyed her interest injoint tenancy to herself in order to terminate t
he joint tenancy and create a tenancy in common, so she couldtransfer her intere
st by her
Issue: Canwill.
a joint tenant unilaterally terminate JT by conveying her interest to
Analysis:
herself? Mrs. Riddle clearly intended to terminate the tenancy. It is artificia
l to require a joint tenant to convey interestto a third party (strawman) who wi
ll convey it back to the joint tenant in order to terminate joint tenancy. CAsta
tute already allows JT to be created w/o strawman. Owner can convey to self and
anotherOneintenant
Rule: JT w/ostrawman,
may unilaterallyso why sever
not bethe ablejoint
to destroy?
tenancy without the use of an
intermediary
a.
1.
A) Notes:
CA
For statute
Mrs. Riddle
device
can beÐ(strawman).
interpreted
if you can create
eitheraway: JT w/o strawman, why canÕt you destroy it.
like policy is no different. If legislature thought it was different, could have
Seems
B)explained.
Against Mrs. Riddle Ð if legislature intended statute to apply to destroying JT
, would have
a. Bank
Property
said
vi. Joint
it accounts
did.
Outline
Bank Accounts
10/5/10
are different.
(p10:49
356)AMThey are ÒjointÓ for the purposes of the bank, not f
or True
b.
1. survivorshipunder
Dependsjoint
on tenancy
intent theÐ onelaw.half to each during life, survivorship at death of one
.2. Payable on death Ð no rights during life but survivorship upon death of the don
3. Each
or
Relations
B.
i. Convenience
tenant
amongisÐConcurrent
just
entitled
for bills
Owners
to possession
as neededofduringthe whole,
life. so often come into confli
ct Partition
b.
ii.
a. Communal
Rules
Partition
governing
ownership
action
(p 359)
co-ownership
canencourages
be brought should
inefficient
if canÕt
equallyagree
usedistribute
ÐinPosner
TIC and
benefits
JT, notandtenancy
burdens.
by th
e entirety.
1.
2.
b.
Facts:
Partition
Delfino
Delfinos
v.by
inVealencis
kindand
sale
(P) Ð property
physical
(p 359) sold
Vealencis division
(D)andareproceeds
oftenants
property.
divided.
in common. D lives on and oper
ates business onone acre and has ~30%, undivided interest. Delfinos want a parti
tion by sale because the landcan be made into a subdivision and is very valuable
. Helen
Issue:
Analysis:
1) physical
Would
wants
Partition
attributes
aapartition
partition
by of
saleinland
inonly
kind
kind(physically
arewhen:
create
such that
Òmaterial
divided).
physical
injuryÓ
partition
to parties?
is impracticable
: Here,
2) the interests
the landonly
of theneeds
parties
to bewould
dividedbe better
into twopromoted
parts. by partition by sale: H
ere, HelenÕsbusiness is her livelihood. The city would probably approve the subdiv
ision plan even if Helenkept her plot and continued her business. The possible d
ecline in market value due to HelenÕsbusiness and the fact that a road would need
to be rerouted is not enough to overcome HelenÕsinterests. The interests of all pa
rties For
Rule: mustproperty
be considered.
owned by tenants in common, courts favor a partition in kind
(physical
over a partition
partition)
by sale, and the decision is made in best interest of all the p
1. Now,
arties.
A) Notes:the tendency is to sell and divide proceedsB) Courts donÕt generally take
intoConcurrent
part
iii.
a. consideration
of
Sharing
the property
the
owners
Benefits
thecan
that
advantage
enter
may Burdens
and beinto
of Konegoverning
next toco-tenant
of other property
Co-ownership
useacquiring
and(pmaintenance,
owned
369)theby thatbut
party.
absent
agreement,
1. Cotenantpropertyrules
paying taxes,apply: maintenance,
(p 379)improvements may seek to recover some or
all of coststhrough partition action, action for accounting, action for contribu
A) Rents
tion.
2. Accounting:
and profits
equitable
Ð Cotenant
proceedingcollecting
for division
rent must
of costs
account
andtoproceeds.
all other cotenant
s. Taxes,
3. This ismortgage
based onreceipts,
payments Ðand Cotenant
not fairpaying
market
morevalue
than(absent
share generally
ouster). has a righ
t tocontribution
A)
4. CoT paying
Repairs Ð Nomore
affirmative
from
canother
also right
cotenants.
get credit
to contribution.
in accountingHowandmuch partition
should be
actions.
spent on rep
airsMayisdeduct
A)
toouncertain.
cost of repairs from rent in accounting proceeding.
B) When possession
Property Outline 10/5/10
is shared,
10:49aAMnumber of JX allow direct action for contributio
5. Improvements Ð No right to contributions and no credit in accounting and partit
n.
ionImproverÕs
A) actions. interest should be protected if wonÕt diminish other interests: can ge
t the portionof the property improved in partition in kind if fair division, OR
canThese
B)
Spiller
b.
Facts: getSpiller
amountimprovement
v.remedies
Mackereth
(D)only
and(pMackereth
look
369)
increased
at value
(P)value
of improvements,
owned inbuilding
partition
asnot
by cost.
TIC.
sale
After
(owelty).
lessee left, S
piller started using it as awarehouse. Mackereth wrote letter demanding either h
alf rent or to vacate half the building. SpillerdidnÕt do either. Spiller also put
Issue:
new locks
Is Spiller
on the liable
doors. to the other co-tenant for rent on building they own in
Analysis:
common that Adverse
he haspossession
fullpossessory
requires
usefinding
of? that possessing cotenant asserted
complete ownership. Spilleracknowledged cotenancy relationship by filing bill fo
r partition,
Normally, occupying
precluding
cotenant
AP. is liable to other cotenants for rent when occupier
refuses demand ofother cotenants to use and enjoy the land. There can be no den
ial of right to enter unless there is ademand or attempt to enter. MackerethÕs let
ter did not demand equal use and enjoyment of the premisesand rather demanded Sp
iller to vacate or pay rent. Further, there is no evidence SpillerÕs locks wereint
ended to prevent other cotenants from entering or that other cotenants asked for
Rule:
a key.An occupying cotenant is not liable to other cotenants for rent unless he
has 1)the
begun agreed
statute
to pay
of limitations
rent, 2) for AP, OR 3) the other cotenants have attempte
d toNotes:
1. enterIfandMackereth
use theproperty
had triedandtoheusehastherefused
property
themor(ouster).
had asked for the keys a
nd An
c. Spiller
occupying
hadrefused,
cotenantthis
is not
wouldliable
have to
beenother
ouster.
cotenants for rent unless he has
:1. Other
2.
3. Agreedco-T
Begun the
to statute
pay
haverent,
attempted
of limitations
to enterforandAP,useORthe property and he has refused th
em Majority
A)
I) (ouster).
Some JX require
rule encourages
rent evenbetter
in absence
use ofofproperty.
ouster butNotmajority
having to
doesnÕt.
pay rent provi
desMay
II)
B) anincentive
Costbeofstronger
majority
to case
userule
it.
forisUnder
compensation
litigation
minorityover
inrule
residential
what
youconstitutes
canÕtproperty,
agree,ouster.
itesp.
may if
go inheri
unused.
b. Fiduciary duties Ð generally, cotenants are not fiduciaries w/ respect to each
ted.
other,
1. May be
butfamilial
cts treatthem
relationship
as suchofintrust
certainthatsituations.
requires them to act as fiduciarie
s2. If one cotenant asserts superior rights, that T is compelled to act in benefi
t ofSwartzbaugh
d.
Facts:allMr.cotenants
Swartzbaugh
v. Sampson(D)(pleased
373) 4 acres of land to Sampson (D). The land was p
art of land owned jointlyby Mr. & Mrs. Swartzbaugh. Mrs. Swartzbaugh (P) did not
consent to the lease, and she sued to cancellease. Sampson is in exclusive poss
ession Can
Issue: of the
oneleased
joint tenant
land. who has not joined in the lease executed by her cote
nant maintain
Analysis: The joint
and action
tenanttocancel
out of possession
the lease? canÕt maintain any action against les
see that she could not maintainagainst the other joint tenant. Each joint tenant
Shas
cannot
a right
cancel
to the
possession
lease toofSampson.
the wholeInofgeneral,
the land,
lessees
so Mrs.
cannot assert AP again
st lessors.
Rule: A joint tenant can lease property to another without the consent of the ot
herSampson
1.
A) Notes:
joint tenant,
has no more
but that
rightsJT to
canlease
land than
no moreMr. S,
thansohis
Sampson
undivided
couldnÕt
interest.
keep Mrs. S
off the
land if she
Property Outline
wanted10/5/10
to be on10:49
it.AMShe still has possessory rights to the whole of
theMrs.
B) property.
S could have brought a partition action, possibly just for the 4 acres l
eased toSampson. If she brings a partition against Sampson, then she is only par
titioning theleasehold, and the underlying fee ownership would stay with Swartzb
C) When
aughs.
D) Mrs. Mr.
S could
S died
haveandalso
Mrs.sued
S assumed
for accounting
his interest,
or claim
theanlease
ouster.
continues w/ her a
s lessor.
VI.
A.
i.
a. Common
During
Traditional
MaritalMarriage
LawInterests
Marital
common
(Fiction
(p 382)
Property
law: Wthat
under
System
H HÕs
& W(pprotection,
are383)
one) and owned nothing but clothes a
nd Modern:
b. ornamentsMarried WomenÕs Property Acts gave W autonomy over property, protected
herBut
1. propertyfrom
still expected
HÕs creditors.
that H protects and supports, W has domestic responsibilit
ii.HTenancy
ies
a.
1.
2.
3. Traditional
Property
Termination
owes Wbyalimony
ofthe
common
spouses
ofentirety
Marriage
b/claw
remains
hedivorce:
becomes
owes
by property
Divorce
herTIC
a duty
(pof399)
spouse
of support,
w/ title.
although may be denied if
4.sheThen,
b. Noisrecognition
atchanges
fault beginning
of sharedinassets.
1970 Ð CA got rid of fault divorce, other states fol
1. ÒEquitable divisionÓ of property at ctÕs discretion Ð many statutes authorize all pro
lowed
perty to bedivided equitably, regardless of time and manner of acquisition, othe
rs Marital
A)
2. allowstates
Some only
property
maritalproperty
require
canequal
be: 1)division,
toallbeproperty
divided.
some acquired
have presumption
during marriage,
of equal or
division.
2) prop
erty acquiredthrough earnings of either spouse during marriage (like community p
3. Lifelong obligation to pay alimony discarded Ð now support for limited time unt
roperty)
il Middle
c.
1. spousePrincipals
ALI: can beself-sufficient,
ground: equitable
of the Lawdistribution
of Family
dependent Dissolution
w/onpresumption
otherÕs ability
of equal
to distribution
pay. su
bject
2. Compensatory
exceptions.payment for specific reasons rather than need or ability to pay.
Facts:
d. In ReDuring
Marriage
6-year
of marriage,
Graham (p wife
401) supported husband while he got his BA and MB
A. income
of She contributed
while he was
70% in school. There are no marital assets. She is arguing th
at business
Issue: Is andegree
MBA marital
is amarital
propertyasset
thatsheisissubject
entitled
to division
to a sharebyof.
the court in a
marriage dissolution
Analysis: Education isproceeding?
not ÒpropertyÓ under the Act, although it is factor to be con
sidered in equitable propertydivision or alimony (but here, no other property to
conveyed,
divide). or Education
pledged.canÕt
It has
be no
sold,opentransferred,
market value. It is personal to the holder
and not inheritable. It is arecognition of an achievement. Other JX have not fou
nd education
Rule: Educationto is
be not
marital
marital
property.
property and cannot be divided, although can be a
1.factor
A) Notes:in Marriage
Uniform determiningalimony
DissolutionorAct: equitable
Maritaldivision
propertyofismarital
all property
assets.obtained d
uringmarriage except by gift, inheritance, bequest or anything in exchange for p
riorCtproperty,
property
B) saysacquired
educational
afterdegree
legal isnÕt
separation,
property property
b/c canÕt
excluded
be transferred,
by valid agreement.
etc., but the
re is otherproperty that canÕt be transferred (eagle feathers). Property is a bund
le Wife
C)
of rights,
canÕt get
not alimony
all ofwhich
b/c she
needcanto support
exist. herself.
D) She mayOutline
Property have been
10/5/10
able10:49
to beAMreimbursed, but this doesnÕt necessarily come clos
e toProfessional
2. whatshe would goodwill
have gotten
(personÕs
fromreputation
her investment.
in the community) is a marital asset
even in JX thatdonÕt consider professional degree and enhanced earning capacity a
s marital
e.
Facts: ElkusMrs.
v.asset.
Elkus is
(p an
408)opera singer whose career took off during the marriage,
although she was alreadysomewhat successful at time of marriage. Husband coached
her and took care of kids, allegedlysacrificing his own singing and teaching ca
Issue: Is the increase in Mrs. ElkusÕs celebrity and career during the marriage ma
reer.
rital property?
Analysis: Things acquired during marriage are marital property even though they
may fall outside the scope oftraditional property concepts. The purpose is to pr
event inequities Ð marriage is an economicpartnership to which both parties contri
bute, as spouse, parent, wage earner, or homemaker. It is thenature and extent o
f the contributions by the spouse seeking equitable distribution, rather than th
e natureof the career that should determine if it is marital property. Husband i
s entitled to share of the increaseattributable to his efforts and contributions
.Rule: Elkus/OÕBrian (NY) rule: Future income is property, and the supporting spous
e has contributed just likea business. Takes into account intangible contributio
1. The
ns.
A) Notes:
NY statute was different from statute in Graham: Òincluding joint efforts o
rexpenditures and contributions and services as a spouse, parent, wage earner an
dhomemaker,
B) Court is broadly
and to theinterpreting
career or the
career
statute
potential
as a whole
of thetoother
be fair
spouse.Ó
in dividing u
p all things ofvalue, which is a somewhat unconventional way of reading a statut
2. Double counting earning potential Ð if spouse gets some of future earning poten
e.
tial,
3. Prenuptial
whathappens
agreements
when theused
nexttomarriage
be illegal,
thatalthough
ends in most
divorce?
allow now. It was fel
t that if the lawenforces prenuptial agreements, the law is encouraging divorce.
a.iii.Dower
Termination
Ð automatic
of Marriage
gift to Wbyfrom
DeathH at
of marriage
One Spouseof(p1/3416)
of all land seised during
marriage andinheritable by their issue. Attaches at moment of marriage but does
nÕtCurtesy
b. become Ðpossessory
Widower entitled
until HÕsdeath.
to life estate
Considered
in all
a Òsupport
WÕs property
share.Ó
when she dies. This
c.interest
Modern elective
attacheswhen
sharethey
Ð surviving
have children.
spouse has elective share in all deceased spo
useÕs property, realand personal. Surviving spouse can renounce will and take shar
1. Replaced dower and curtesy in most common law states. Dower states allow choi
e.
2. Only
ce.
3. But, applies
propertytocanprobate
be gifted
property,
away before
and notdeath.
to property owned as joint tenants
or General
B.
i. life insurance.
Community Rule:
Property
earnings
System
of each
(p 419)
spouse during marriage are owned equally in un
divided
a. 8 states
shares.
have had community property for a long time (including CA), plus WI
recently,
b. Basic assumption
and AK haselective
that H & Wcommunity
contribute
property.
equally to the success of the marriage
.c. All non community property is separate property and strong presumption that a
ll Upon
1.
d. property
Inheritance,
divorce,
iscommunity
gift
someare
states
property.
separate.
divide equally, others allow equitable distribution
.e. Some
f.
ii.
Upon
Community
death,Property
states no survivorship,
allow community
comparedproperty
although
with Concurrent
with
halfsurvivorship.
usuInterests
goes to spouse if no will.
a. Community
Property Outline
property
10/5/10 states
10:49donÕt
AM recognize dower, curtesy or tenancy by the enti
b. Neither spouse, acting alone, can convey interest in community property w/o c
rety.
onsent
c.
d. No right
Tax of other
benefitof Ðpartition
exceptif
after death conveying
of one,toproperty
the otherhasspouse.
Òstepped upÓ tax basis. Surviving sp
ouseManager
Management
iii.
a.
b.
1. Community
Usu,
onlyeither
paystaxes
ofproperty
is aCommunity
Hsort
or Wonofacting
can
difference
Property
fiduciary
onlyalone
be and
btwn
conveyed
hasmust
purchase
management
to third
act inprice
rights
good
party
and
faith,
(before
worth
as analthough
atjust
undivided
death.
H).
notwhole.
neces
sarily
iv.
a. When
Mixing
goodjudgment.
property
Communityis acquired
Propertybefore
with Separate
marriageProperty
but part of purchase price paid aft
er Some
1.
2.
3. marriage
JX:(CA):
JX withcommunity
Òinception
Òtime pro
of rata
vestingÓ
of apportionment
fundsrulerule
rightÓ Ð when
Ð Ðwhen
paidacquired
community
off property payments Òbuy inÓ a pro r
v. Character
ataportion.
a. Migrating of Couples
property depends on the state in which it was acquired. Once pro
perty
doesnÕt
1. Property
ischange
characterized,
bought
whenwith
couple $ earned
moves during
unless marriage
both consent.
takes on character of the earni
b. Common
ngs.
c.
C.
i. At death
CA:
Rights
property
ofofDomestic
law marriage
afrom
spouse,
aPartners
Ðcommon
law oflaw
cohabitating
(phis/her
statepartners
426) domicile
is Òquasi
that
atcommunity
death governs.
manifest propertyÓ
intent to be H& W and
out
a.
b.
1.
hold
Now
Contract
In
assome
themselves
H&W.JX,
only in contract
law 11brought
states.mayin when
be implied
they donÕt
by conduct,
hold themselves
in most,out contract
as H&W.must be exp
2. Marvin
ress.
ii. ALI & domestic
v. Marvinpartnership:
(p427), allowing Legalimplied
rights arise
contracts.
from conduct with respect to
eachSame-or
a. other.opposite-sex couple sharing for significant time primary residence an
d lifeBaker
iii.
Facts: together
Three v.same-sex
State
as acouple.
(pcouples
428) Butsued
no state
inheritance
& cityrights.
for denial of right to benefits
given toMaymarried
Issue: the statecouples.
of VT exclude same-sex couples from the benefits and protec
tions thatWhen
Analysis: its alawsstatute
provide is challenged
toopposite-sexundermarried
Equal Benefits
couples? clause of VT Constit
ution, must 1) define Òpart ofcommunityÓ disadvantaged, here the law excludes same-s
ex couples, and 2) governmentÕs purpose inclassification including some and exclud
ing others. Principal purpose is that excluding same-sex couplesfrom legal benef
its of marriage is Òfurthering link between procreation and child rearing.Ó But, man
yopposite-sex couples marry for reasons unrelated to procreation, and many donÕt h
ave children Ð the lawextends benefits of marriage to many people with no connecti
on to stated governmental goal. Also, manysame-sex couples have children, and la
w affirms their right to adopt children, and protects their interestswhen such c
ouplesVTterminate
Rule: is constitutionally
their relationships.
required to extend the same benefits and protection
s toNotes:
a. same-sex
The framers
couples of thatVTÕs
flowfrom
constitution
marriageprobably
under VTdidnÕt
law. think about same-sex marr
iage, but spirit of
i. Generally
Property
their
VII.
A. Leasehold
Landlord-Tenant
desire
Outline
totenancies,
ÐEstates
include
10/5/10
Lawshould
10:49
(p
or445)
leaseholds,
AM upheld.are nonfreehold estates. When any leaseho
be
ld isTerm
ii. created,
of yearsa futureinterest
Ð estate that lastsnecessarily
for somearises.
fixed period of time or for a perio
d computable by a formulathat results in fixing calendar dates for beginning and
a.ending.
b. Can bemust
Term anybelength,
for a fixed
but someperiod
statesbutlimit
can be terminated early by some event or
c. Words
condition.
d.
e.
iii. Ends
Death
Periodic
automatically,
of L tenancy
used or create:
to T hasÐnolease
Òto
notice
effect
Tfor
forofaone
termination
period
yearÓof somerequired.
fixed duration that continues f
or length
a.
b.
1.
2. succeeding
If
6Under
mos
no notice
common
equalperiods
of the
law,
reqÕd
to termination,
notice
untileither
for
period
termination
must
ifautomatically
terminate
period
L orofTisPT
gives
tenancy
less
where
extended
notice
than
period
onathe
ofyear,
foris
termination.
final
another
anot
year
day
toor
period.
oflonger.
exceed
a period.
6 mos
.c. Now, some states have shortened length of notice and allow month-to-month to
be Death
d. terminated
of L oranytime
T hasafter
no effect,
30 daysalthough
notice.may terminate residential lease if T
diesWords
e.
iv. Tenancy
b/c used
residentialleases
attowillcreate:
Ð tenancy
ÒtoareToryear
Òpersonal.Ó
no fixed
by yearÓperiod that endure so long as both L and
a.T Both
desire.parties must have ability to terminate at will or else it is a term of y
earsModern
b.
c. Ends
or at
a statutes
periodic
death ofrequire
T.one of some
L or length
T. of notice to terminate (30 days or length
1.equal
If rent
to interval
is reserved btwnrent
and paid
payments).
periodically, in most JX, a periodic tenancy ari
sesTenancy
v. by implication.
at sufferance: Holdovers (p 451, 454) Ð arises when T remains in posses
sionL has
after
a. (holds
termination
twoover)
options:
of tenancy.
1) evict and get damages, or 2) consent (express or implie
d) Length
b.
1. to most
In creation
can
JX,beholdover
ofcomputed
newtenancy
gives
by time
Òholdover.Ó
risebetween
to periodic
rent intenancy
original lease or length of or
iginal
2. Restatement:
term orperiod,
resultsbutinnever
periodic
moretenancy
than onemeasured
year. by the way rent is computed
, never
one
c. Usually
year.moresubject
than to same terms as original lease unless new agreement or terms
B.areGenerally:
i. Theinconsistent
Lease (pthe456) withnew situation.
transfer of a right of exclusive possession of land. This is w
hatLicenses
a.
1. Tmakes
can exclude
it&aneasements
estate.
L donÕt have possessory rights in the same way Ð canÕt exclude o
b. Something called a lease may not be one, and something not called a lease may
thers
ii.
be Conveyance
one. of interest in land vs. Contract: Do you construe obligations und
er Athelease
a. leasemeets
as athepropertyarrangement
standard definition or of
a contract?
a contract (modern) Ð has promises/cov
1. AReform
enants
b. leaseproperty
also concerns
law ofanL-Testate
into in contract
land (traditional)
law. Ð transfers possessory in
terest in land.
1. Traditionally:
Property Outline 10/5/10
leaseholds
10:49classified
AM as an interest in land, but were still p
ersonal
chattels
2. The law property:
real.
was very pro-landlord. Property arrangements that came out of this sy
stem persistedthrough industrial revolution, into US, and well into the 20th cen
iii.Oral
tury.
a.
b.
c.
iv. Every
Most:
Form
Statute
lease
stateof+has
leases Frauds
for
Ðpayment
would
one.
> 1(pbe
=yrperiodic
458)
must betotenancy
costly inbargain
writing,
notindividually,
allow oral
subject to statute
leases
but form
for
ofleases
< 1 yrcan put
frauds.
a.T Economic
at a disadvantage
argument:b/cless
doesnÕtbargaining
matter whether
power.or not T can haggle, just that there
isnÕt a monopolyand that competition forces sellers to have terms that protect pur
C. LSelection
chasers.
i. generallyofowns Tenants
property
(p 460)
in fee simple, and generally can choose who to let
use the property. Choice ofT is part of right to exclude. You donÕt have to rent a
ny property
ii. But, federal
you have
(& state)
if youlawdonÕt
controls
want to.
how you canÕt pick and choose in sale and
a. Exceptions
rent.
1. Fair HousingforActindividual landlords w/o much property as long as they donÕt adv
ertise
2. CanÕtordiscriminate
use areal estateon basis
broker,
of race,
salesman.
sex, color, religion, familial status, nat
ional
A)
D.
i.
a. Mustorigin,
Subleases
Sublease
Traditional
allowvs.
and
disability.
reasonable
formalistic
Assignment
Assignments
accommodations
view:
(p 482)
assignment
for is
people
whenwith
lessee
disabilities
transfers all of his
interest
the wholeÐterm.
possession
Sublease
forwhen transfers anything less than whole term so that le
sseePartial
1.
reversion.
has a assignment of part of premises allowed under an assignment and is not
(majority
2.a If
reversion
powerview)
of termination or right of reentry is allowed for breach of obligati
on,Less
still
b. inbemajority,
common
an assignment
view:
it can
Intention
Ð but minority
of partiesholdsÐ Actual
that itwords
makesare
it not
a sublease.
conclusive but ma
y beLPrivity
ii.
a. persuasive.
and T areof in
estate
privity
and of
privity
estateofand
contract
privity of contract when there is no ass
ignee
b.
2.
3.
4.
A)
c.
1. T and
Neither
LWhen
has
orTT:
asublessee.
sublessee:
subleases:
assigns:
Lreversion
privity
nor theofprivity
no
forcontractA)
sublessee
contract
privity
theofremainder
estate
of
can
andTestate.
bring
estate,
is and
ofsuit
the the
contract
assigneeÕs
andagainst
term
T remains
the other.
surety.
liable.
A is primarily liabl
e, However,
B) and T is Tonly impliedly
secondarily
assigns
liable.
his privity of contract right to sue L for LÕs bre
ach of
covenants whose burdens run with the land. Assignee only may sue L for the breac
2. During
h.
A) L and Assignee:
the time assignee
privity ofisestate
in possession of the land, he is liable for coven
ants whoseburdens run with the land. Thus A is liable for rent to L even if he d
idnÕt
3.
A)
4. A can
LPrivity
and
promise
T:ofprivity
release
to Tpay.
contract
from
of liability
contract
privity of
IFremains
A makeseven
contract aand
promise
ifget
A assigns
contractual
to T. to someone
rightselse.
against a
ssignee Ð this is a
novation.
Property
5. A isnÕtOutline
liable10/5/10
for covenants
10:49 AMrunning with the land if he is no longer in posses
sionTenant
d.
1. Whenbecause
T remains
subleases
heassigned
liable
or assigns:
his
to Linterest
even iftohesomeone
assignselse.
or subleases (privity of contra
2. If transferee makes a promise to T, he is in privity of contract with T. T ca
ct).
n sue
3. T cantransferee
terminateevenif
the lease
the heiftransfers
covenant ishisbreached
interestand to can
someone
thenelse.
evict the tran
A) But if T voluntarily gives up the original lease, transferee is still entitle
sferee.
d toL can
4. possession.
sue transferee
Inthis who
case,hasthepromised
sublessee
to pay
becomes
rentinorprivity
performofobligations
estate withunde
L.
r the leasehas
transferee eventransferred.
if L is a third party beneficiary and therefore in priv
ityTLLofleases
with
LPrivity
Ta. transferee.
contract
of estate
to T for
andthree
K privity
yrs, TofÒsubleases,
K transfers, and assignsÓ interest for o
nenor
estate
privity
iii.
TT1
1. year
maybe
ThisExamples:
T1and
topay
of
isKASSIGNMENT
KT1.sublease
aKSUBLEASE
estate
rent.
Neitherbecause T is transferring less than complete interest. T h
as La can
2. reversion
recoverinterest.
from T. L doesnÕt have a direct remedy against T1. L cannot sue T
1 for rentbecause T1 has never promised to uphold original obligations of lease.
b.L Lcan,leases
however,
to T for
evictT1
termfor
of 3nonyrs,
payment
for monthly
of rent.rent and keeping up repairs. T a
ssigns entire interest toT1, who agrees to uphold covenants of lease. Then T1 as
signs
1.
A)
B) TWholiable
T1 toisT2,
liableliable?
(not
thenreleased
because
T2 had
assigns
promised
fromtoprivity
T3.toT3defaults.
uphold
of K).covenants, so in privity of K w/ L -
L isT23rd
beneficiary.
C) escapes
partyT1because
is no T2
longer
is not
in inprivity
privity
of of
estate
estate
w/ with
L. L and not in privity o
f K.Covenant
D)
2. T3 is liable to pay
because
rent runs
he iswith
in privity
the estate.
of estate.
Covenants that run with the land a
utomaticallytransfer
iv.
a. Covenants
Covenantsthat runwhen withthe
theestate
land (such
is transferred.
as rent) automatically transfer when t
he Aestate
b. burdenisortransferred.
benefit that touches or concerns the interest in land will run wi
th Burden
1. the land. touches or concerns if it relates specifically to the property and dim
inishes or limitspromisorÕs use or enjoyment of the land. Benefit touches and conc
ernsNotifall
2. it promises
relates towill
propertyand
run with the increases
land asusetoortheenjoyment
benefit and
of the
theland.
burden. Ex.
If L promises to nothave a bakery next door, a transferee would get this benefi
t as well b/c it runs with the land. IfL assigns his reversion to L1, the burden
of the promise will not transfer because the burden
Facts:
Property
doesnÕt
v. ErnstErnst
run
Outline
v. with
Conditt
(P) leased
10/5/10
the (pleased
482)
land
10:49
land.
toAMRogers: canÕt assign or sublease w/o permission; m
ust remove
Rogers soldall
business
improvements.
to Conditt (D). Rogers got permission from Ernst to transfe
r, to extend lease b/c Dwanted to, and promised personal liability. Rogers and C
ondittÕs agreement ÒsubletÓ to Conditt forconsideration and promise to fulfill require
ments of RogerÕs lease. Conditt stopped paying rent, remained inpossession until e
nd of lease, and didnÕt remove improvements. Ernst sues for back rent and improvem
Issue: Was the agreement between Rogers and Conditt a sublease or an assignment?
entremoval.
Analysis: Court holds that this is an assignment because Rogers gave up his inte
rest for the whole term (formalistictest) and the partiesÕ intention was to assign
D(intention
is liable totest).
ErnstDoesnÕt
for rent
matter
and for
thatthe
theimprovements
agreement saidbecause
Òsublet.Ó
he is in privity
of estate (assignee is in privityof estate with L) and privity of contract (D pr
omised Agreement
Concl: he would uphold
was ancovenants
assignment,of and
the Conditt
original(assignee)
lease). is liable to lessor f
or rent and removal of theimprovements b/c in privity of estate and contract wit
h Ernst.
Note: Ernst could have also sued Rogers, the original T, and then Rogers could h
aveMinority
vi.
a. sued Conditt.
Restraintsallow
on lessor
withholding
to withhold
consentconsent
to assign
onlyforwhen
commercial
the lessor
property.
has a Òcommercia
lly reasonable
objection,Ó even in the absence of a provision stating that consent will not be un
reasonablywithheld
1. Based on conveyance (Kendall).
of property: common law doesnÕt like restraints on alienati
2. Based on K: implied covenant that neither will do anything that will destroy
on.
otherÕs right toenjoy fruits of the K. A duty is imposed to exercise discretion in
b.good
c. CA statute
Termination
faith andcodifies
and
in recapture
accordancewith
minority
clause
position.
fair
Ð Tdealing.
must give notice before assigning or suble
asing, L couldterminate lease with T and sign lease with T1. T not entitled to a
ny Upheld
1. profitsforrealized.
commercial leases entered into by sophisticated commercial entitie
s operating
vii.
Facts: Kendall
Pestana
atarms
v.was
Ernest
length.
assigned
Pestana,
TÕs interest
Inc. (p 490)
in aircraft hangar space, including a 25
year sublease with Bixler. Kendallwanted to buy business from Bixler, including
assignment of sublease on the space. The lease requiredPestanaÕs written consent f
or sublessee to assign interest. Kendall was in a better financial position than
Bixler,Can
Issue: butaPestana
lessor unreasonably
refused unlessandrent
arbitrarily
was raised.
withhold consent to an assignme
nt if there is no provision in thelease prohibiting withholding consent unreason
ably and arbitrarily?
Analysis: A growing minority allow lessor to withhold consent only when the less
or has a commercially reasonableobjection, even in the absence of a provision st
ating
1) Leasehold
that consent
interest:
willPolicy
not beagainst
unreasonably
restraints
withheld.
on alienation pertains to natur
e of leases. Reasonablealienation of commercial space is important in our increa
singly urban society. LessorÕs interests are protectedby the fact that the tenant
remains
2) Contract:
liableInasevery
a surety
k, there
if the
is an
assignee
implieddefaults.
covenant that neither party shall d
o anything that will have theeffect of destroying or injuring the right of the o
ther to receive fruits of the k. A duty is imposed to exercisediscretion in good
Concl:
faith Both
and intheaccordance
policy against
with fair
restraints
dealing.on alienation (property law) and the i
mplied contractual duty of good faithand fair dealing (K law) support the rule t
hat where a commercial lease provides for an assignment only withlessorÕs consent,
consent may only be withheld where there is a commercially reasonable objection
.E. Common
i.
a.
1. Tenant Law
Repossession
whopossession
in Defaults
Rule:
by LL may(p rightfully
500) use self help to retake premises from T if
1) L is legallyentitled to possession or lease term allows reentry AND 2) LÕs mean
s of reentry are peaceable.
2. ModernOutline
Property trend Ð10/5/10
self-help10:49
eviction
AM is never an option for L to dispossess a tena
nt who is inpossession and has not abandoned or voluntarily surrendered the prem
A) In some JX, only prohibited for residential property. Risk may be even higher
ises.
B)inFor:
property.
C)
I) Most
Policy:
residential
courtsare
There wonÕt judicial
allow means
waiverforby speedy
T b/c ofrepossession
differentialandinwebargaining
want to discoura
power.
ge peoplefrom taking the law into their own hands. Self-help repossession leads
to violence.
II) Against: Raises rent for everyone, summary proceedings are costly and take a
doesnÕt
Berg
b.
Facts:
while,
v.Wiley
reduce(D)
Wiley (prisk 500)of confrontation.
leased commercial space, and tenant assigned to Berg. Berg made
changes that allegedlyaffected structure w/o permission, and restaurant had hea
lth code violations. Wiley gave Berg 2 weeksto change or would retake. After 2 w
eeks of continued operation, Berg put up sign: ÒClosed forremodeling.Ó Confrontation
when D saw her removing some paneling. Then Wiley changed locks whileBerg was g
one and
Berg sued.
wouldnÕt
Wiley said let her
shein.
abandoned and counterclaimed for damages to premises.
Trial court foundfor Berg Ð didnÕt abandon, WileyÕs reentry was forcible and wrongful
as a matter
Issue: Did Berg
of law.abandon premises, and was WileyÕs reentry forcible and wrongful as
Rule:
a matter
Common
of law:
law? L may rightfully use self help to retake premises from T if 1)
L is legally entitled topossession or lease term allows reentry AND 2) LÕs means
of reentry
Analysis:
Court adopts
Berg
aremodern
peaceable.
didnÕt trend
abandon.
that self-help
She was stillis never
usingavailable
property to
andL.paying
Furthermore,
rent. i
n this case, the commonlaw rule would find this self-help reentry to be wrongful
as well because the reentry was forcible. Therelationship between P and D was c
ontentious. The only reason why there wasnÕt violence was becauseBerg wasnÕt there a
nd she resorted
Policy: Want to discourage
to the judicialLs from
process.
taking law into their own hands, particularly
since legislature has providedjudicial means for speedy repossession. Self-help
Concl:
repossession
Court adopts
leads modern
to violence.
trend that self-help is never available to dispossess
a tenant who is in possessionand has not abandoned or voluntarily surrendered t
he Abandonment
c.
1.
2.
A)
ii.
a. premises.
Traditionally,
Summary
Much
Tenant
quicker,
Proceedings
proceedings
who ÐhasTbut
the
Abandoned
vacates
still
only
(p every
in 507)
remedy
takes
premises
Possession
state
awas
while.
w/ofor
ejectment,
justification,
L to evict
whichT.w/o
was present
long andintention
costly to re
turn,
on
b.
1. rent.
Mitigation
Traditional
and defaults
ofrule damages
(majority): L may recover rent due under lease regardless of
whether L hadattempted to re-let the vacated premises. After T abandons, L may
1) accept surrender andterminate lease, 2) re-let on TÕs behalf, or 3) leave vacan
t and
A) T has
sueafor
property
rent when interest
it isindue.
the leased premises and L canÕt interfere with TÕs o
wn Modern:
B)
2. property.
Policy against:
L has anencourages
obligationeconomic
to make awaste
reasonable effort to mitigate damages w
hen T hasabandoned leased residential property (may apply to commercial in some
JX). T is liable forany amount L cannot recover, and L need not rent to an unsui
table
A) If LT.has
(Sommer
otherv.vacant Kridel)
units, must make same effort to rent abandoned unit as
makes
other
I) JX differ
for
units. Maywhether
on have toLtryor Ttohave
rentburden
that unit
of proof
first.of whether L mitigated damag
II) T owes for whatever L wasnÕt able to recover, extra costs incurred as a result
es.
, and
C) Lease
Property
difference
B) T cannotOutline
is ifmore
generally
L must
10/5/10
like rent
awaive
K.10:49
for
Under
duty
less.
AMKtolaw,
mitigate.
party has obligation to make reasonable
efforts
D) Policytomitigate
against: Ldamages
shouldnÕt
caused
be forced
by breach
to choose
of K. T he doesnÕt want, TÕs wrongdoing d
oesnÕtimpose
encourages
I) If duty to abandonment.
liability
mitigate,onundermines
L, LÕs search
ability
maytobearbitrarily
seen as an refuse
acceptance
to consent
of TÕs to
surrender,
a
ssignment
those
E) CA statute
JX that
in requires
allow b/cduty T could
to mitigate,
just abandon.
but L can recover amount up to what cou
ld have beenreasonably avoided (burden on T) plus any other detriment to L proxi
mately
c.
1. Surrender
Voluntary
causedsurrender
by TÕsabandonment.
terminates lease if L accepts it. Extinguishes liability
forAcceptance
2.
A)
3. May
Abandonment
future
be implicit
rent,
ofissurrender
but
implied
ornotfor
explicit
offer
byback
L may
ofrent
surrender.
beorimplied
other or
breaches.
expressA) Implied: actions inc
onsistent
d.
Facts:
SommerKridel
withKridel
v. entered
continuation
(pinto
509)2-year
may belease
surrender
with Sommer
if L doesnÕt
and paid
notify
1st mo
T. + security.
One week into lease, Kridelwrote letter saying could no longer afford and forfei
ting amt already paid. Sommer never replied. Athird party inquired about the apt
, but was told it was already rented. Sommer didnÕt rent until after endof 2-year
lease. IS
Issue: Sommer
L under
suesafor dutyentire
to mitigate
amount damages
of rent by
duemaking
for 2 reasonable
yrs. efforts to re-
let anOLD
Rule: aptrule:
wrongfully
L may recover
vacatedandrentabandoned
due underbylease
T? regardless of whether L had a
ttempted toMajority
Analysis: re-let (old)
thevacated
rule is
apts.based on principles of property law that equate
a lease with a transfer of propertyinterest in the ownerÕs estate. Thus it would
be anomalous to require L to concern himself with TÕsabandonment of TÕs own property
. Ordinary residential leases are now not as distinguishable fromordinary contra
cts. Application of k rules may be justified as a matter of basic fairness: reco
veryforbidden when damages could have been avoided by reasonable efforts. Burden
of proof is usually onthe party that breaches, but here L is in much better pos
ition to show that she took reasonable efforts, soburden is on L. T isnÕt necessar
ily excused from obligations Ð L doesnÕt have to accept unsuitabletenant Ð but here th
ere wasLahas
Concl: suitable
an obligation
T available.
to make a reasonable effort to mitigate damages when
T has
e.
1. LLandlordÕs
has
abandoned
rightremedies
toleasedresidential
sue forandunpaid
security rent
property.
devices
and damages due to other breachesA) L can
evict
2. Security
if T isdeposit
still Ðinmanypossession.
statutesLlimitcouldnÕt
amount,
do this
say amt
undermust
traditional.
be kept in trust, L
3.must
Other
payinterest,
security devicesA)
L must itemize
Paymentdeductions.
in consideration of executing lease, advance
B)rent,
F.
i. Rentliquidated
Duties,
ÒMoralacceleration:
hazardÓ
Rights,Ðdamages.
Remedies
L has
On TÕs
incentive
(condition
default,toallof premises)
neglect
remainonce
rentlease
is due.
is executed b/c T bears cost
s ofTraditionally,
and
a. LÕs
ordinary
only obligation
repairs,
T had towasdotoall
turnrepairs,
over possession.
and L was under no obligation to warr
ant fitness.
lesseeÓ
Ð T took
ÒCaveat
leased property as is.
a. CQE
Property
1.
b.
c.
ii. Quiet
JournalistsÕ
Principles
Covenant
& CE
Outline
enjoyment
ÐofSubstantial
began
exposure
Quiet
10/5/10
referred
toenjoyment
beof
10:49
modified
interference
onlyAM(CQE)
the slums
toinTÕsand
started
the
with
access
60s.
constructive
TÕstotobeneficial
change
the premises.
eviction
in use
early(CQE)
(CE)
1900sby L is constru
ctive eviction ofT, relieving T of obligation to pay rent if she vacates within
a reasonable
1.
A) LInusually
most JX,has
time.
T acanreasonable
also staytimeand tostillfixget
it after
rent abatement
T gives Lunder
noticebreach
of theofprobl
CQE.
2. Implied
em.
A) CQE is implied
CQE followed
in every
in all
leaseJXandforcannot
residential
be waived.
and commercial leases and inte
B) L has a duty to: disclose latent defects, maintain common areas, control othe
broadly.
rpreted
r tenants.
C)
3. Interference
Partial CE Ð some
need JX
notallow
be permanent,
T to be relieved
just substantial.
from liability for the portion of t
he Reste
b.
Facts:
rentCooper
for
Realty
thepremises
(D)Corp.
entered
v.that
Cooper
5 year
cannot
(please
522)
be of
used.
basement floor of building from Reste
(P), agreeing that she hadinspected the premises, accepted them as they were, an
d promised
Lease contained
to keepexpress
premises
covenant
in good of quiet
condition.
enjoyment. Floor flooded every time it
rained due to theconstruction of the driveway and foundation (not part of the l
eased premises),
Building manager dried
interrupting
out floor
DÕswhenbusiness.
D complained. A year later, Cooper entered
and
newbuilding
5-year lease,
manager promised to fix the flooding problem. Work was done, the pr
oblem stopped butcame back worse than before. Manager continued to promptly resp
ond to instances of flooding. Thenmanager died. No one responded to DÕs complaints
of flooding. 9 months after managerÕs death, aparticularly bad flooding incident
occurred, D gave notice she was vacating, and moved out 10 dayslater. Landlord s
ued forWas
Issue: rentCooper
for remainder
constructively
of lease.evicted, relieving her of liability for rent on
Analysis:
remainderThe of leakage
the lease?problem could not have been reasonably ascertained by T an
d was not a problem with theactual premises she had leased. L knew or should hav
e known of the problem and had a duty to informher. D knew about the problem whe
n she entered the second lease, but reasonably relied on managerÕspromise to fix i
t. The interference
Vacating premises under was theory
substantial.
of constructive eviction is a serious, so 9 month
s is a reasonable amountof time. Constructive eviction can occur either from a b
reach of the covenant of quiet enjoyment or amaterial breach of another covenant
Concl:
of theSubstantial
lease. interference with express or implied covenant of quiet enjoym
ent of the leased premises ormaterial breach of another covenant of the lease by
and act or omission of L is constructive eviction ofT, relieving T of obligatio
n toIWHImplied
iii.
a. payÐ implied
rentwarranty
if and
she unwaivable
vacates
of habitability
within
in every
a (IWH)
reasonable
residentialtime.lease that L will deliver and
that
1.
maintain
Typically
are safe,
premises
must
clean,
be major
and fitproblems
for human affecting
habitation.
TÕs health and safety Ð usually for lo
w-incomehousing
A)
B)
2.
3. Housing
DoesnÕt
Not
RemedyA)
accepted
code
apply
K remedies
only.
violations
in
broadly
everyavailableB)
toare
JX, enforce
mayevidence
beTwaiveable
all
maypromises
ofremain
breach
ifinTregarding
but
hadarenÕt
possession
equalcondition
conclusive.
bargaining
and sueofforpower.
premises.
reimbu
rsement and
punitive damages),
damagesor(possibly
withholdevenrent and raise as a defense when L suesC) T may t
erminate
D)
Injunctive
leaserelief
and sueÐ rarely
for damages.
used by T.
F) Some
Property
E) Most JXOutline
allowallow
only 10/5/10
as a if
defense
10:49toAMiseviction.
breach so substantial that it relieves of all liabil
ityCalculation
4. for rent. of damagesA) Difference btwn value if in good condition and curre
nt condition ORB) Difference btwn agreed rent and value in conditionC) Rent redu
cedCQE
5.
6.
A) Policy
Different
by applies
percentage
against:
than
to all
equal
CQE:
Raises
leases,
toeveryoneÕs
lossIWHofjust
value
rent
todue
andtothus
low-income
breach.
increases
residential homelessness.
leasesB) IWH pr
eferred
C) IWH can
where
be raised
applicableat anyb/ctime,
greaterCQEdamages
must bepossible
raised within and easier
a reasonable
to prove.timeD)
CQEHilder
7.
b.
Facts:
CA:
generally
IWHv.forSt.
Hilder requires
(P)
residential
Peter
rented(p
vacation
apt.
533)
leases,
St.ofPeter
premises,
and L(D)
canÕt
told
IWHretaliate.
doesnÕt.
her she could get back her secu
rity deposit if she cleaned the aptherself. Hilder did, but D denied ever gettin
g the deposit. The apt was in extreme disrepair, and Dignored all of PÕs requests
for repair. P had to repair many things at her own cost, and had to stop usingpa
rt of the apt. P retained possession and sued for reimbursement of all rent paid
Issue:
and compensatorydamages.
Did the state of the apt constitute a breach of the implied warranty of h
abitability, entitling P to return ofall rent paid plus additional damages even
though P never
Analysis: Today,abandoned
T is in an theinferior
premises?bargaining position compared to L, and ente
rs into lease
sanitary and comfortable
to obtain safe, housing, not arable land. Implied warranty of habitabil
ity covers all latent andpatent defects in the essential facilities of the resid
ential unit,violation
Substantial and cannotofbehousing
waivedcodeby agreement.
is evidence of breach of IWH, and also any
thing that has animpact on the health and safety of T. L has a reasonable time t
o correct. T doesnÕt need to abandonpremises to recover (constructive eviction), a
nd can In
Concl: alsothegetrental
punitive
of anydamages.
residential dwelling unit, there is an implied warra
nty of habitability in the lease thatL will deliver over and maintain, throughou
t the period of the tenancy, premises that are safe, clean, andfit for human hab
c. Modern
itation.
1.
2. Retaliatory
Traditionally,
Ð presumption
eviction
L couldof(pterminate
543)
retaliatory at eviction
will if L seeks to terminate or raise r
ent w/in set periodafter good-faith complaint by T based on condition of premise
A) Minority:
s.
d.
1.
2. L cannot
LÕs
Traditional:
Tort Liability
retaliate
useLIWH onlyto(p
after
liable
impose
544)period,
for
general
duties
either,
standard
arising
but of
Tout
bears
care of onburden
CE LandinCQE
ofallproof.
circumstance
A) Majority
s.
3. CA leads ÐthedonÕt way recognize
in imposingduty liability
of careforbutinjuries
recognizethat onlyoccur.
common law exceptions.
a.
1.
iv.Look
TÕs
TÕsalterations
duties,
at effectLÕsoncanrights
usebeand
waste,
andvalue,
remedies
butpermanence,
not(pevery
546)alteration
length of remaining
is waste. term of leas
e. Modern
b.
c.
1.
2. Fixtures,
Permissive
Destruction
Traditional
Ð for
though
waste
Ðofrental
Tpremises
still
originally
traditionally
ofliable
only part
chattel,
forobligated
rentabecome
of b/cTlease
building,
topart
repair.
Tisofisanthe
excused
interest
land from in rent
the soil
if premi
sesExplicit
A) are destroyed.
covenants to repair generally accept normal wear and tear as well as
Land
damage
UsebyControls
fireor other casualty.
i. Nuisance
Property
VIII.
A. Intro
Nuisance
Outline
Ð A(psubstantial,
10/5/10
747) 10:49non-trespassory
AM invasion of anotherÕs interest in the u
se and enjoyment of landthat is either 1) intentional and unreasonable OR 2) uni
ntentional
a.
Intentional
b.
1.
2.
c.
d. Substantial
Mere
Objective
Level
Gravity
Intentional
Generally
ugliness
ofofresult
and
interference
standard
only
harm
invasion
nuisance
unreasonable
isnormal
ofoutweighs
not
negligent,
enough.
excused
use ofmeasured:
utility
reckless,
if
property
itofisactorÕs
reasonable
isorabnormally
protected
conduct
orbydoesnÕt
dangerous
nuisance
cause
activity.
law,much
notharm.
abnor
mally
1.
ii.
a.
b. But
Generally,
Unintentional
Trespass
sensitive
may still
Ðintentional
physical
uses.
be a nuisance
trespass invasion
torttreated
is ifofgravity
that anotherÕs
results
like anofinunintentional
harm
property.
liability
outweighsregardless
nuisance
utility (must
of harm
conduct.
be res
ultabnormally
or
iii. ofNuisance
negligent,dangerous
is part
reckless,
tort
activity).
(negligent or wrongful activity) and part property la
w (Sic
a. interference
utere Ð Onewith should
land)use ones property in a way that doesnÕt injure the propert
y ofSpite
iv.
a.
b.
c. Fear
Light
Kinds
another.
and
Ðand
ofcourts
loathing
nuisances
Air generally
Ð Halfwayfindhouses
nuisance
and liability
prisons mayforbestructure
found to with
be nuisances
no use othe
r than
v.
a.
2.
b.
1. Private
Can
Still
Public
Interferes
toprivate
onlyvex
nuisance
vs.
nuisance
bewith
neighbor.
Public
brought
evenhealth,
Nuisance
ififthere
itsafety,
interferes
are peace.
many landowners
with
Protects
enjoyment
who are
publicof rights
PÕs
affected.
land.
and need not in
terfere
2. Actionwith
canland
be brought
userightsby government or member of the public who is affected a
nd CA:
c. can Anything
showÒspecial injurious
injuryÓtoÐhealth.
damage Nothing
differentdoneor or
beyond
maintained
injury under
to theexpress
public.au
thority
1. Public:
of affects
statute at is the
anuisance.
same time an entire community or neighborhood even if
harmLateral
2.
B.
i. Private:
Right
is unequal.
toSupport
Any nuisance
Lateral Ðand
support
Subjacent
thatprovided
isnÕtSupport
public
to one
(p piece
754) of land by the parcels surround
ingCause
a. it of action doesnÕt arise until subsidence (sinking) occurs or is threatene
d and runs against theexcavator, who may be a predecessor of the present possess
b. If
or
c.
1. Liability
Liable
subsidence
onlyisifabsolute,
wouldnÕt
negligenthave
no needoccurred
to showbutnegligence
for improvements by excavatorÕs successo
rs Generally
2.
d.
ii.
a. andexcavator
If
Right
Subjacent
result
to lateral
ofSupport
arises
gavewhen
groundwater
support
notice
Ð support
onecan
ofperson
extraction
plans/
be waived
underneath
has mining
orparcel
expressly
rights, and
expanded.
goes as w/ lateral su
pport.
1. Whenever
Property
C.
i.
a. Remedies
Injunction
Traditional
Outline
forremedy
the nuisances
damage
10/5/10
for
resulting
10:49
nuisance
AMfor a nuisance is found not Òunsubstantial,Ó an inj
unction
b. Aftershouldbe
receivinggranted
injunction,
(changedP may
by bargain
Boomer).with D to allow use to continue in
exchange
c. Balancingfor the
$. equities Ð weigh injury that may result to D and the public by en
ding activity againstinjury sustained by P by allowing activity to continue (Est
ancias)
ii.
Facts:
Estancias
Air
Ð standard
conditioning
Dallastest
Corp.
forv.injunction.
unit atSchultz
back of(pEstanciasÕs
755) (D) apartment complex created
lots of noise for neighboringShultzes (P): couldnÕt carry on conversations in home
, property value reduced by at lease $12.5k. DÕsapts canÕt be rented w/o air conditi
oning, would have cost $40k to build air conditioning differently, andnow would
cost $150-200k to change. ShultzÕs sued for injunction based on nuisance and sough
tdamages. Jury found damages, trial court awarded injunction. D appeals on groun
d that Does
Issue: trialthe
court
injury
didnÕtbalance
resulting to theDequities.
and the public by stopping the activity ou
tweigh theNoinjury
Analysis: evidence
to Pthat
bycontinuing
the publicthewillactivity?
be injured by stopping the air condit
ioning. There is no shortage ofhousing. Nuisance will not be permitted to exist
based on the Òstern ruleÓ of necessity rather than theright of the actor to work har
m on hisEven
Concl: neighbor.
if there is a nuisance, the equities should be balanced: consider in
jury that may result to D and thepublic by ending activity as well as injury sus
tained
a.
1.
2. Notes:
No
By zoning
issuing
by P bylaws
injunction,
allowing
in TX.activity
ct givestoSchultzes
continue.aHere,
property
PÕsharm
interest
stillinoutweighs.
EstanciasÕs la
3. P sued for damages and injunction, but they had to chose one (couldnÕt get both
nd.
iii.
underPermanent
TX law).damages Ð D must pay P permanent damages or injunction will be enfo
rcedTemporary
a. (Boomer).damages may not enough if an injunction isnÕt granted after balancing
the equitiesbecause harm may continue, giving P continual causes of action for
b. Easier
damages.
1. RemediesforareD to
often
showcalculated
cost of stopping
on an uneven
than for
playing
P tofield
show harm inflicted such
as health
iv.
Facts:
Boomer
Atlantic
impact.
v. Atlantic
(D) operates
CementaCo. cement
(p 759)
factory causing air pollution for Boomer (
P) and probably the public atlarge. An injunction would cause the plant to shut
down (worth 45 mil with 300 workers). The damageto P is relatively small. Trial
court found a nuisance, gave temporary damages, no injunction. Affirmedby appell
ate court.
Issue: Where the costs to D of an injunction are high, but no injunction will re
sult should
what
Rule: inOldcontinual
Rule:
the Whenever
court
damages
rule?
the
to damage
P, resulting for a nuisance is found not Òunsubst
antial,Ó anThis
Analysis: injunctionshould
plant is actuallybe granted.
affecting the public at large, but it isnÕt for t
he court to decide how to fix thepublic harm in a private case. The damages to P
will continue, so awarding temporary damages willallow P to maintain successive
actions for damages. The cost to D of an injunction is so high, that isnÕtfair to
Two
havepossible
an injunction.
remedies: 1) order an injunction but postpone it to allow time for
technological advancesto reduce pollution, 2) grant injunction that can be vacat
ed on payment of permanent damages to P forall harm incurred in the future. 1) i
snÕt feasible b/c such advances would take a long time and requirethe whole indust
ryÕs help.
Concl: WhereCourt
an injunction
chooses 2)would
because
costwill
D afully
lot and
redress
damages
wrong
to Ptoare
P. relatively sm
all, court can grant injunctionthat can be vacated on payment of permanent damag
es to P for
Dissent: Should
all just
harm grant
incurred
injunction
in the future.
under old rule. This was allows and encour
ages wrongs to continue as longas D pays for them.
1. But
Property
v.
a. Coming
Traditionally
this
Outline
tomeant
the Ðnuisance
10/5/10
that
if Pthecame
10:49
Ðfirst
Abate
toAMthe
landowner
allnuisance,
activity
determined
this
if Pwaspays
the
andamages
absolute
use for the
defense
wholefor
areaD.
.b. The residential landowner may not have relief against agricultural business i
f he knowingly cameinto a neighborhood already used for agricultural business (S
1. If ag business must be enjoined b/c of a public nuisance, residential develop
pur).
er The
2. mustlawful
pay forrelocation.
use by the business is a relevant factor (zoned for agricultural u
c. PSpur
se).
vi.
Facts: canSpur
be owned
Industries,
liableafor feedlot
Inc.
onlyv.not
part
Deltooof far
E. the from
Webb costs
Development
aifretirement
appropriate
Co. (pcommunity
766) (Youngtown).
Del Webb bought a bunch of(cheap) land right next to that community and the fee
dlot to build a residential community (Sun City). Ashe built closer to the feedl
ot, Del Webb had trouble selling the lots close to it. Del Webb brought action o
fa public
Issue: 1) Where
nuisance an operation
b/c of theofflies a business
and odors.
is lawful but becomes a nuisance b/c
of a nearby residentialcommunity, can the business be enjoined (stopped by injun
2) If so, must the developer of a new town indemnify the operator of the busines
ction)?
s who must move or stopbecause of the residential area created by the developer?
Analysis: 1) Youngtown residents not greatly affected, so just get damages. Sun
City residents near feedlot aregreatly affected by both public and private nuisa
nce,Insocoming
2) permanent
to nuisances
enjoinder. cases, the residential landowner may not have relief i
f he knowingly came into aneighborhood already used for agricultural business. H
owever, SpurÕs action isnÕt just personal but b/c ofdamage to the residents. Del Web
b must indemnify Spur for a reasonable amt of the cost of moving orshutting down
.Concl: The developer of a new town must pay if the operator of a business must m
ove or stop because thebusiness is a public nuisance to the residential developm
D. We
ent.
i.
a. Nuisance
Boomer
now have
court
lawsweeping
and environmental
called for
administrative
legislature
controls
to act
and permanent
to regulate
regulations
pollution.
that address th
ese problems.
Nuisance law could still be used, but it is much easier to use these statutes an
d say
1. Under
D violatedpermit
the Clean Air Act, or didnÕt
govt finds
get a the
permit.
cleanest factory, then says all facto
riesSomething
2.
b.
a.
E.
i.
ii. Actions
Nuisance
Pay
Zoning
Incentives
Zoning
have
feetolaw
can
for
actions
berepresents
lawful
belikethat
polluting
brought
can still
under one
(effluent
privately
azoning
governmental
inbe10laws
brought
yrs.
fee),
orcan
bydetermination
even
orgovt
still
given
ifunder
bethese
aaset
these
nuisance
laws
ofamtthe
laws.
arenÕt
of general
polluting
violated.
userights.
of the
IX.
A.
i.
a.
b.
c.
land,
Intro
Easements
Affirmative
Negative
Private
but not
Land
Easement
(p782)
areofnon-possessory
Easement
Use
thespecific
ÐControls:
right
Ð righttouse
Servitudes
andofuse
to
prevent
create
a anotherÕs
specific
owner
property
ofpiece
landinterests
another
of land
land.from making certain
usesEasements
d. of the land.
Appurtenant Ð benefits the holder in the use of a specific piece of l
1. Easements
and.
e. Passes to insuccessive
Gross Ð personal
owners oftothethedominant
holder andtenement.
not tied to ownership of a part
icular piece of land.
g. Servient
Property
May
f.
1. Dominant
Nonotdominant
beOutline
transferrable
Tenement
tenement
10/5/10
Ð Property
inor
10:49
easements
divisible.
AMburdened
benefiting
in gross,
byfrom
theonly
the dominant
rightright
to use,
to tenant.
use
property on which th
e easement
h.
used.
1.
ii. Duration
Easements
Creationisofof
areeasement
Easements
permanentÐunlessby express
limited:grant,
canbybeimplication,
easement determinable.
by necessity, by pre
a. ATraditionally:
scription
1.
2.
A) Easement
Easements
By grantor
accepting,
bycannot
areexpress
within
though,
Easements
actually
grant
the
grantee
Statute
can
(p only
reserve
785)
is bound
ofan
beFrauds
reserved
easement,
evenb/cthough
for
theyis
it the
heare
regarded
didnÕt
grantor
interests
sign
or given
as the
in grantee.
it. land.
to the
3.grantor
Modern:byEasement
thegrantee canafter
be reserved
receiving forthea third
full party
interestif that
in theisland
the grantorÕs int
ention
A)
4. In R3d
Notice:
(Willard).
ofInProp,
express
buteasement
not followed by grant,
by allsuccessive
cts. owners are on notice because
5.they
Facts:
Willard
can
McGuigan
view
v. First
thetitle
ownedChurch
a lot
records.
ofsheChrist
bought(pso785)a church across the street use it for
parking. Petersen persuadedher to sell it to him so he could sell it to Willard
(P). McGuigan wanted church to still park there, soput Òsubject toÓ an easement for
parking by church in the deed. She discounted the price 1/3. PetersendidnÕt includ
e that in the deed he gave to Willard. Willard brought suit to quiet title, tria
l courtCan
Issue: foundfor
a grantor,
him. in deeding real property, effectively reserve an easement
for a Common
Rule: third party?
law: grantor cannot reserve an interest in property for a stranger
to the title.
Analysis: Old rule is based in feudal times. A reservation is treated as if it i
s a grant of the easement from thegrantee to the grantor, creating a new interes
t after the whole of the interest was conveyed to thegrantee. Our primary intere
st is in supporting the intent of the grantor. Clearly the intent was to havean
easement. Facts do not support reliance on the old rule b/c Willard didnÕt even kn
ow about theeasement. In other cases, balancing competing interests may warrant
application
Concl: In theofinterest
the old of
ruleprotecting
topresently theexisting
intentiondeeds.
of the grantor, a third party
A)interest
Note: The in easement
property was
may unclear
beeffectivelyb/c didnÕt
reserved
specify
in awhat
deedÒchurch
of realpurposesÓ
property.were or ho
wmany
b.
1. Easement
License:
parkingoral
byspaces
estoppel
or written
needed
(p 791)to be reserved.
permission given by occupant of land allowing the li
censee
A)
B)
I) Licenses
Exceptions
License
to docoupled
are
someact
torevocable
revocability
with
thatanat
would
interest
will.
ofotherwise
licenses
Ð ownership
be a trespass.
of chattel located on licensorÕs lan
d orright
II)
2.
1)
2)
3)
A) aEasements
with
goes
Licensee
License
licensee
servient
to toconsiderable
can
relied
take
by
exercises
become
estoppel
ownerÕs
something
on the
irrevocable
right
expense
permission
tacit
like
ofapproval
toway
timber
when
improve
and they
from
ofthe
licensor
theright
become
landeasements
of(profit
in way to
going a prendere).
by estoppel.of impr
expense
oving
B)
C) LicensorÕs
If easement.
the reasoninaction
for theineasement
the facedisappears,
of obvious the knowledge
easement is will
enough.
generally disapp
ear as well, but
if reasonOutline
Property continues,
10/5/10
easement
10:49runs
AM to successive owners of the dominant tenement
.D) R3d Holbrook
Holbrook
3.
Facts: Prop
v. Taylor
allows
bought
servitudes
(p 791)
propertytoinbe1942
created
and allowed
by estoppel.
a right of way to be used by
which
a coalitmine
did for
company,
several years. There is nothing in writing. In 1964, Taylors bo
ught property next doorand used the driveway for getting in and out and hauling
equipment to build their house. They alsomade improvements to the driveway ($100
). In 1970 things started to get bad, and Holbrook wantedthem to sign a document
There
excusing
isnÕtHolbrook
anotherofgood
liability.
way to getHolbrook
to thetried
Taylortoproperty.
stop themTrial
from court
using found
it. righ
t of use
Issue:
Rule: Easement
Dobytheestoppelbut
Taylors
by estoppel:
have
notaif
byright
prescription
licensee
to usehastheexercised
drivewayprivilege
by estoppel?
given by licenso
r and is
Analysis:
There erected
right
No right
improvements
by estoppel:
by prescription:
atconsiderable
Owner ofuse servient
notcost.
continuous
estate (Holbrook)
or adverse.
knew the TaylorÕs
spent money toimprove the driveway and either gave permission or at least tacit
Concl: When a licensee exercises right of way with owner of the servient estateÕs
approval.
permission and spendsmoney to improve the right of way, the license is irrevocab
le Easement
c. by estoppel.implied from prior existing use1) Use exists prior to severance: A q
uasi-easement exists on the quasi-servient part of grantorÕs land for thebenefit o
f the
2) Severance
quasi-dominant
by a common
part.owner: Grantor conveys part of the land or conveys both
grantees
3)
4) parts
Use is
Easement
tosimultaneously
different
continuous
is reasonably
and/ornecessary
permanentfor enjoyment of dominant tenement (some JX
require
5)
necessity)
Easement
strict
must be apparent but not necessarily visible to the grantee (of the
servient
A) EnglishT)rule: grantor canÕt reserve an easement for himself by implication. Gra
ntorSome
B)
2.
A) Only
If caneasily
itcourts
applies
is reserved
put
say
to it
easements
for
in thebegrantor,
must deed.
appurtenant
absolutemust
necessity,
meet stricter
others say
standards
it is only
of necessity.
a factor
.B) If grantor didnÕt put it in the grant, the price may have been for the land w/o
and
3.theCA:
weeasement,
donÕt of
Costs wantrepairs
to lettograntor
such easements
keep the areeasement
sharedandbythe
parties
money.who own it by ag
reement
4. If theoraccording
dominant and to servient
the proportion
T comeofinto
use.common ownership, easement is exting
uished. If theowner later redivides, a new easement by implication will arise if
A)itVan
5.
Facts:
Applies
meets
Sandt
Bailey
requirements.
tov.owed
easements
Royster
3 lots(p
implied
(19,
796)20,
fromandprior
4) and
usebuilt
and bya sewer
necessity
pipe across two of t
he lotsbought
Jones for alot
house
19 and
on the about the sewer pipe. Jones (19) Reynolds
knewthird. Van Sandt
conveyed
(P). Baileylot 20 to Murphy Royster (D). Lot 4 Gray (D). No deed contained any res
ervations.
discovered
Issue:
Rule: AnIsowner
there
P canÕt
sewage anineasement
the basement.
have animplied
easementfrom
in his
priorownuse?
land, but may have a quasi easeme
nt on one Implied
Analysis: part of easement
theland for arises
the whenever
benefit ofgrantor
the other
conveys
part.quasi servient tenanc
y. The easement must be oneof strict necessity in order to establish an easement
Animplied
easementby created
reservation
by implication
in favor ofarises
the grantor.
as an inference of the intention of th
e parties, not thelanguage of the grant. Each party is bound to his intention an
d what he might reasonably have
Concl: the
Property
foreseen Outline
other10/5/10
partyÕs10:49
intention
AM to be. Grantors may be assumed to intend the
continuance of usesknown to them that are necessary to the usefulness of the lan
d. The degree of necessity necessary toimply and easement in favor of the granto
r is greater
Jones knew aboutthanthe
thatsewer,
to imply
and this
in favor
easement
of thewasgrantee.
necessary to the comfortable e
njoyment of theproperty. P made an inspection of the premises and knew there was
modern plumbing. P is chargedwith notice of the sewer Ð the use need not be actua
llyeasement
An visible was
if itcreated
is or byshould
implication
be apparent.
because the grantor knew about it and is
thus assumed tohave intended its continuance, grantee should have known about it
(it was apparent), and the easementis necessary for the comfortable enjoyment o
f the
d. Easements
other property.
by Necessity1) Severance by a common owner2) Need for easement exis
tedStrict
3)
A)
B)
I)
C) Easement
Only
Typically
Landlocked
at the
endures
necessity
time
isright-of-way
land
strictly
of is
as severance
long
mayeconomically
necessary
as
mean
for
necessary
(necessity
that
landlocked
and
if
inefficient
and
it
notis
now
ismerely
parcel
otherwise
isnÕtconvenient
limitedenough)
topossible
extent(most
necessary
to get
JX)in just by
foot,
I) Burden
by boat,
of proof
orbyisextreme
on theexpense,
alleged dominant
the easement
estate:
isnÕtifnecessary.
she canÕt prove necessity
the
2.
A)
existed
Right
Some
timestatutes
at condemn
of
to severance,
give(western
private
it is states)
assumed
owners anotright
to have
to condemn
existed.a necessary right-of-way
acrossanotherÕs property even if it doesnÕt meet the other requirements of easement
Dominant
B)
3.
4.
Facts:
byOthen
Easement
necessity.
Hill
owner
v. by necessity
implies
Rosier
owned
musta(pbunch
pay802)
the for
intent
doesnÕt
ofthe
land.
ofright
operate
the
He first
of in
party.
wayconveyed
favor of part
the govt.
of land next to road (
100 acres). There was a wayacross that land to the back portion. No evidence tha
t this was the only way from his land to the roador that it was in exactly the s
ame kept
but placepart
as itofisthenow.
landHecontaining
then conveyedthe road
part (16.31).
of the backHillportion
later conveyed
(60) the r
est the
and of the
restback
of the
partland
(53)with the road. Othen (P) later got the two back parts:
50 and 63. Rosier (D) gotthe two front parts with the road Ð 100 and 16.31. Rosier
put up a levee by the road to protectfarmland flooding that made the road unpas
sable. Othen sues for injunction against this and otherinterferences with his us
e of the land. Trial court found easement by necessity for Othen over 100 and16.
31. Appeals
Issue: Does Othen
court have
foundannoeasement
easementbyatnecessity
all acrossoreither.
prescription across RosierÕs 10
0 acreEasement
Rule: and 16.31byacreplots
necessity:of1)land?unity of ownership of alleged dominant and servi
ent estates, 2) the roadwayis a necessity and not a mere convenience, and 3) thi
s necessityNoexisted
Analysis: easementatbythenecessity:
time of the Hillseverance
owned allofthe
land,twobutestates.
no easement across
16.31 plot b/c Hill still ownedthis at the time he conveyed the 100 plot. Owner
cannot have an easement across his own land. Notclear that way across the 100 pl
ot was necessary for Hill, as he may have had other ways out. Must beclear evide
nce. Land completely surrounded by the land of another doesnÕt give the former a w
ay easement
No ofnecessityby prescription:
where there isRosierno privity
used the
of ownership.
road, too, so OthenÕs use is permissi
ve and cannotripen into a prescriptive right. Othen cannot tack on the use of th
e road before RosierÕs owned the landb/c no evidence that it was exactly the same
road. Prescriptive period cannot begin when Hill stillowned the land. Burden of
proof isOthen
Concl: on Othen.
has no easement of necessity b/c roadway wasnÕt a necessity at the ti
me the estates weresevered, and part of the road wasnÕt part of land that was seve
red while
Othen has no
original
easement
ownerby prescription
still had title. b/c Rosier used the road, too, making Othe
nÕs use prescriptive.
Notes: Most
Property Outline
courts10/5/10
donÕt construe
10:49 AM exclusive use of easements by prescription so na
e. Fiction
rrowly.
1.
A) EasementsofbythePrescription
History: lost grant, then required presumed to have existed since 1189.
1)
2)
3)
4)
A)
B)
2. Use
Easements
Open
Continuous
Adverse
Under
US courts
doesnÕt
and
a claim
(not
notorious
byand
setneed
prescription
permissive)
ofuninterrupted
sameright
to throughout
time
be exclusive,
as S/Ltheforbut
statutory
AP.right to period
use must arise from more that th
e generalpublicÕs
C) A change in theright mannertoofuseuseit.may be enough to shift it from a permissive to
an adverseuse. Use may also change from adverse to permissive, and the S/L must
start
D)
3. Applies
Someover.
American
only tocourts
affirmative
adoptedeasements,
the fictionnotofnegative
the losteasements.
grant: owner must acquie
sceAthe
but
A) (not
letter
use
object)
cannot beprescriptive
telling permissive.user to stop is enough even if she doesnÕt actual
ly In
B)
AP).stopJX(unlike
that donÕt follow fiction of the lost grant, owner must effectively stop
4. Public Prescriptive Easements Ð Obtained by long continuous use by the public u
use.
prescriptive
nderLandowner
of
A) right.
a claim must be put on notice by the kind and extent of the use, and that a
n adverse
right
5. Implied
is being
dedication
claimedÐbylandowner
the public,evinces
not an
by intent
individuals
to dedicate, and the state acc
eptsPublic
6.
A) Beach
bymaintaining
Access
prescriptivethe easements
land used generally
by the public.
donÕt work for beach access b/c use gen
regarded as with permissionB) CA, though, allows public prescriptive easements o
erally
nlySome
C) w/incourts
1000 yards
have used
of thetheocean.
doctrine of customary rights Ð existed for so long, n
o memory
of
iii.manPublic
runneth
Trust
to Doctrine
the contrary.
Ð ownership of land from the shoreline to the mean high
a.water
Statemark
ownsisout
heldtointrust
3 milesfor out,theUSpublic
govt 3-12
by themiles
state.
and has exclusive JX up to
200CAmiles
1. has strong
out or public
tolimittrust
of thedoctrine
continental
laws:shelf.
may even regulate use of water if i
t causes
b. Publicbody
may also
ofwaterusetoandshrink.
cross area above mean high water mark that is private
ly There
1. owned is
if aitbuilt-in
isnecessarylimitation
for thetoenjoyment
fee simpleof ownership
the beach.just above the mean hi
gh water mark Ð youhave to let the public uses it to cross to the beach and sunbat
he on it. This is an easement bythe general public to cross and use your propert
y byJudicial
2.
3. States
virtuehave
of different
decisions
the commonthatapproaches.
law.
modify property rights arenÕt seen as governmental taki
ngs.Matthews
c.
Bay
Facts:
Head
Courts
Association
createproperty
v. Bay HeadownsImprovement
orrights,
leasesandAssoc.
much
therefore
of(pthe816)
dry
cansand
modify
areathem.
above the Bay Head
beach, and restricts use
and accessOutline
Property through10/5/10
to members
10:49(residents
AM of the area) and their guests during th
e daytime
Issue: CaninD restrict
the summer. membership to residents and thereby preclude public use of
Rule:
the dry
Beach
sanduparea?
to the mean high water mark is held in public trust by the state
for the useInoforder
Analysis: the to
public.
exercise right to use the beach land held in public trust,
the public must have access to this areathrough the dry sand area. Additionally
, public must have use of the dry sand area for sunbathing andrecreational activ
ities to fully enjoy the beach. This isnÕt a static right and doesnÕt mean the publi
c canAssociation
The useall of actsthe dry
as asandquasi-public
area, justentityso muchandasthusis necessary.
must open membership to t
he public.
other privateAt owners
this point,
of dry sand areas need not allow public use, but this may b
ecome necessary
Concl: Where useifAssociation
of dry sand area losesislease
necessary
on a for
lot public
of the enjoyment
dry sand area.
of the beach
, the public trust doctrinewarrants the publicÕs use of this area, subject to acco
mmodation
iv.
a.
1.
A) Traditional:
Easements
Assignability
of in
thegross
easements
use
of Easements
ofarethenot
inowner.
gross
limited
(p 824)D must
are tonotthe
openmembership
alienable.
need of the owner
to theasgeneral
easements
public.
appu
rtenant
2. Modern:are(Commercial) easements in gross are assignable if that is the intenti
on R3d
A)
B) of the
Only Prop
recreational
originalgrantor
allows assignment
easements
(Miller).
regardless
(hunting, of fishing)
commercial
are not
character,
assignable.
and allows the
m toThis
divided
3.
A) Easements
be isunless
toinprevent
contrary
gross the
aretoservient
not
original
divisible
estate
intentandfrom
ormust
would
being
be exercised
create
burdened
unreasonable
as Òonethe
beyond stock.Ó
burden.
extent
B) Easements
contemplated.
originally
C)
4. This isonlynotin
works
the
gross
if are
way there
TICgenerally
works:
is a small
right
enforceable
number
to useoftheagainst
owners
undivided
successive
whole.owners of the
b.servient
Profitsestate.
in gross are generally alienable, but courts are reluctant to allow t
hemOne
c. to of
be the
divided.
Òcanons of constructionÓ Ð if you have a legal document that lists certa
in Riparian
d. things, theinference
owners (landisalongside
that things natural,
not listed
navigable
are waters)
excluded.have reasonable ri
ghtsMiller
e.
Facts:toPocono
usev.the
Lutheran
Spring
waterssubject
Water
Conference
IcetoCo.&theconveyed
Camp
rights
Assoc.of easement
an the824)
(p otheronowners.
an artificial lake fo
r exclusive right Òto boat andfishÓ to Frank Miller, his heirs and assigns forever.
Frank conveyed
batheÓ to Rufusone (heirs
fourth
andofassigns
interest forever),
Òto boat, hisfish,
brother. For 25 years they shared
the costs and profits ofthe business they operated: recreational bathing, boati
ng, and fishing. Rufus died, some land near theriver was conveyed to Lutheran Ch
urch, bad blood developed within the Miller family, RufusÕs estategave bathing rig
hts to Lutheran Conference. Pocono Spring Water dissolved, Katherine Miller, Fra
nkÕswife, bought the lease to the lake. Frank and Katherine sued for an injunction
Issue:
2)
3)
Analysis:
toAre
Were
enjoined
1)these
easements
DidThere
1) Lutheran
Frank
rights
inare
and
gross
assignable
fromselling
noRufus
divisible?
riparian
have
frombathing
bathing
rights
Frankb/clicenses.
rights
to Rufus?
this onisthe
an artificial
river? lake. The de
ed clearly did not convey bathingrights to Frank. However, Frank and Rufus did s
ell bathingasrights
Katherine, FrankÕsas wife,
part ofhadtheir
knowledge
business,of thetheuse.
owner,
Therefore, Frank and Rufus h
ad This
2) a bathing
is anrightseasement
easement in gross by prescription.
because it was not attached to the land but was
personal. There iscontroversy over whether an easement in gross is assignable. T
here is no reason not to allow if it is theintention of the parties to give the
right to assign, which it was.
3) Easements
Property Outline
in gross
10/5/10
are10:49
not divisible
AM out of concern of burdening the servient
estate more than wasoriginally contemplated. If there is to be more than one pe
rson exercising the right, they must do so asÒone stock,Ó and cannot use the easemen
t if it interferes with the right of the other. Therefore, RufusÕsestate could not
Frank
Concl:
conveyandeasement
Rufus hadto aLutheran
bathingw/o
easement
FrankÕsbyconsent.
prescription because they exercised ba
thing rights openly,
continuously, with the knowledge of the owner but without express consent for 25
years. Frank had theability to assign his easement in gross to Rufus because it
was clearly the intention of the originalgrantor to allow Frank to assign his i
nterest. The bathing easement is not divisible, and must beexercised by Frank an
d RufusÕs
v.
a. Scope ofestate
Easements Easements
appurtenant
as one(pentity.
839) be extended for use to other parcels to which th
cannot
e easement is notappurtenant, even if the parcels are adjacent and the burden is
1.notHowever,
increased
oneatcourt
all.refused to grant injunction if there is no injury to the s
ervient
v.
A)
b.
1. Voss).
This
Scope
by grant
owner
decision
of Ðtypes
(Brown
terms
isnÕt
ofwill
easements
followed
control.b/cIftoo
ambiguous,
dangerouscourts
to property
will lookrights.
at circumstances
surroundingcreation
2. implied by prior use to determine
Ð use thatintent
existed prior to severance and any other simila
r use
3. by prescription
that thepartiesÐ restricted
might reasonably
to samehave
general
expected
pattern
willofbeusepermitted.
that existed during
statutory periodand consistent w/ what servient owner might have expected from
notChange
A)
c.
1. More
Changing
objecting.
restricted
must
thebescope
reasonably
thanofother
easement
foreseeable
easements. and reasonably necessary to enjoyment a
nd Courts
A) developmentof
usuallythewilldominant
expand use
T. from horses to cars, but will not expand for u
tility
2.
3. Easements
Therelines.
is acan
tension
alwaysbetween
be enlarged
servingbytheprescription.
interest of the parties and the econom
ic Modern:
4.
A)
B) use of the
Location
Traditionally
canland
becannot
moved w/o
be moved
consentby if
servient
servient
owner
owner
w/opays
dominant
for relocation,
ownerÕs consent
it do
significantly lessen the utility, create a burden, or frustrate the purpose of t
esnÕt
he Brown
d.
Facts:
easement
Parcel
v. Voss
B has
(p an
833)easement appurtenant over parcel A for access to a single
-familyofdwelling
owner B, lateronbought
B. Brown,
parcel C, which was adjacent to B and had no access roa
d. Brown began work tobuilding a new single-family dwelling straddling the borde
r between B and C. This use didnÕt increase useof easement. Voss, owners of A, blo
Dcked
counterclaimed
BrownÕs access,
for injunction
Brown soughtagainst
injunction
PÕs use
against
of road
their
to get
blocking,
to C. Trial court d
enied DÕs
appeals
Issue: Should
reversed.
injunction,
P be allowed to used an easement appurtenant to B to get to a dwel
ling straddling
Rule: Generally,theeasement
borderbetween
appurtenant
B andtoCone
if parcel
there ismaynonot
increase
be extended
in use?by the o
wner of that parcel to otherparcels, adjoining or not, to which the easement is
not appurtenant.
Analysis: Any extension of use of an easement appurtenant is a misuse, even if i
t doesnÕt increase the burden on theservient estate. However, an essential criteri
on for This
Concl: injunctive
is a misuse
reliefofisthe
actual
easement,
and substantial
but there isinjury.
no injury to D, which is r
equired for
Dissent: Anyinjunction,
use is a misuse
so noinjunction
and a trespass.
granted.
The fact that there is no increase
in burden
injunctive
vi.
Termination
doesnÕt
relief.
ofwarrant
Easementsa denial
(p 843)of
c. By
Property
a.
b. Natural
Purpose
prescription
Outline
expiration
no longer
10/5/10
Ð terminates
applies
Ð most
10:49areAMifunlimited,
servient owner
but grant
wrongfully
may limit
andlength
physically preven
ts Estoppel
d.
e.
f.
g. use forÐdomain
Merger
Release
Eminent Ðstatutoryperiod.
Ðifdominant
dom
dominant
ownerÕs
owner
andwords
servient
may release
or conduct
estates
in are
writing.
come
reasonably
into thelikely
same ownership
to cause reliance,
andAbandonment
h. it does. Ð must be more than non-use. Must be a present intention to relinqu
ishPreseault
i.
j.
Facts:Easement
or RR
actioninconsistent
rannot v.across
extinguished
US (pPreseaultÕs
843)withbyfuture
tax
(P)sale
property,
use.of servient
by grant
tenement.
in 1899. Grant for one par
t was Òright of wayÓ and wasdetermined by commissioner. Other part said Òin fee simpleÓ
and came from owner of the land. RRstopped using tracks in 1975, removed tracks.
Started being used as a trail, but taxes still paid as if RR. In1986, state too
k over maintenance as public trail under Rails to Trail Act, keeping RR tracks o
pen aspublic trails and for possible future use as RR. Lots of people used the t
rail
PPresault
suedandforcouldnÕt
came compensation
intousePÕsdriveway
yard,
under theory
or build thatanother
trail amounted
one. to a 5th Amendment taki
ng. Court
Issue: DidoftheFederalClaims
conversion offound the RR forright
govt.of way into a public trail amount to a
1)5thIf
2)
3)
Analysis:
DidAm.
easement,
not
RRtaking?
haveWhen
limited,
1) anwasRR
easement
did
itacquires
limited
easement
or estate
fee
toterminate
simple?
RR purposes
in land
in for
1975
only?
track,
b/c ofitabandonment?
is for no more than u
se needed. Part one: grant said rightof way, so it is an easement. Part two: gra
nt said in fee simple, but it actually wasnÕt b/c owners wereforced to convey inte
restUsetoasRR,trail
2) so noismoreway different
use than necessary
in degreeisandassumed.
nature of burden than RR use, so
useRRwanÕt
3) abandoned
contemplated.
b/c stopped use and removed tracks. Continued taxing just shows
bureaucratic
Concl: Govt owes slowness.
P as a 5th Amendment taking b/c significant use of land that bu
rdens P that created a neweasement that was in any case not contemplated by orig
inal grantors.
Note: Property law is mostly state law, so Federal recognition of abandonment do
esnÕt
vii.
a. Right
Negative
control.
of theEasements
dominant(powner858)to stop servient owner from using land in a parti
cular
1.
2. Negative
Traditionally,
way. easements lightareandgenerally
air easements
not recognized
were enforceable. This has taken on a
newAll
b. twist
states
withhave solarenergy
conservation
developments.
easements Ð property owner conveys development rig
hts in order toconserve the land. These easements are controlled by terms of the
easement itself (you can conveysome or all of the development rights), perpetua
l orCA:canperpetual
1. be perpetual, in duration,
bindingnoton personal,
all successors.
never unenforceable b/c of a lack of
B.privity,
i.
a. Covenants
Real
Becausecovenants
particularcharacteristics
negative
Running (History)
easements
with the were
Land generally
follow thenotinstrument.
enforceable, property owners cr
eated
1. However,
agreements contractual
orpromisesduties
restricting
arenÕt enforceable
use of land.against non-parties to the K, so
needed to have aproperty interest that could be enforceable against successors
in US
b. interest.
courts created real covenants, promises respecting the land that runs with
1.theTest
2. Privity
landforatofthelaw
estate
running is of
required,
the burdenbut is
canstronger
exist beyond
than the test
L-T relationship.
for the running
of the benefit.
A) First Restatement
Property Outline 10/5/10 required
10:49horizontal
AM privity for burden but not for the bene
fitThis
B) to run.
was rejected b/c it only worked for subdivisions, but vertical privity i
s requiredI)
c. Real covenant BurdencandoesnÕt
be negative
run toorAPaffirmative
b/c no verticalpromiseprivity
(to notofdoestate.
or do an act)
.1. Benefits
2. Negative and covenants
burdensareoftreated
affirmative
like covenants
easements run for to
succession
successorspurposes.
of estates of
(traditional
A)
d.
ii.
a.
1.theSuccessive
Burden
Covenants
Equitable
Equitable
same runs
duration
privity
are
servitudes
Servitudes
owners
tonotAP.are
requirement)
enforceable
(p 864)if:against
bound 1) thatassignees
was whatwho washave
intended,
no notice
2) successive
of them.
owner
3)
A) promise
Notice
had can
notice,
touches
be inquiry
and concerns
notice Ðtheapparent
land. that there is a common plan in the neig
B) If not in the deed, there must be some pattern of restriction, but it isnÕt cle
hborhood.
ar how for
needed muchthe is pattern to create a reciprocal easement on the properties with no
C)restrictionsin
Touches and concernsI)
the deeds.The closer the promise comes to connection to a physic
al use
II) An affirmative
of the land,covenantthe moremay likelyit
touch and
is toconcern
touch if andthe
concern.
benefit also serves the
burdenedestate as in dues for upkeep in common interest communities (Neponsit).
It is wayharder for an affirmative covenant to touch and concern, particularly c
ovenants
III) Restrictions
to pay. on the promisorÕs use of her own land generally touch and concer
IV)Allows
n.
D)
2.
3.
A) ESCourts
R3d sometimes
followed
Proppromises
split
goesincalled
onmost
farther
towhether
bind
negative
JX andall
covenants
abandons
future
easements
not to compete
requirement
property owners
of touching
touch
who have
andand
concern.
notice
concerning.
unless the
y are
unconstitutional,
B) Asksillegal,
if it is arbitrary
or violateorsomeunreasonable
public policy.
restraint on alienationC) Some argue
thatTulk
run
b.
1.
2.
3.
4.
c. Can
Equitable
Real
Privity
with
touch
bev.
covenants
the
enforced
andservitudes
doesnÕt
Moxhay
land
concern
forever.
are
(p
by864)
matter
ashould
enforceable
stricter,
third
vs.
areÐasAenforceable
Real
much
behave
party
negative
kept
covenants
atinto
for law
b/c
ES.
some
covenant
inÐwein
be equity
can
circumstances.
are
writing,
get
isallowing
Ðenforceable
damages.
canmust
getpromises
an against
have
injunction
privity.
thatsubsequent
will
purchasers
1. Otherwise, evenpurchaser
ifit doesnÕt
wouldrun getwith
it for
thealand.
discounted price, and then sell it fo
r more
2. Purchaser
w/o therestriction.
must have notice, and only negative covenants are enforceable as eq
uitable
Dd.
Facts:
(McLeans)
Sanbornservitudes.
v.andMcLean
P (Sanborn)
(p 870)each own part of lot 86 of a subdivision once owned
by a commonowner. The original owners of the subdivision lots attached a restric
tion to the deeds of a number of lotsthat the lots would be used only for reside
ntial purposes for the benefit of other lots retained by theoriginal owners, inc
luding lot 86. D started building a gas station on their lot, P says it is in vi
olation
Is
Issue:
DÕs land
ofthesubject
generaltoplan
a reciprocal
of the subdivision.
negative easement?
Rule: WhenOutline
Property the owner
10/5/10
of two
10:49
or more
AM lots sells one with restrictions that benefi
t the land retained, the ownerof the lots retained cannot do anything forbidden
to the owner of the lot sold. Reciprocal easementsrequire actual or constructive
Analysis:
notice toLot the86subsequent
was retained
purchasers
by the original
of the ownerÕs
ownersretained
when theylots.
sold lots with re
strictions lot
Therefore, that86benefited
became bound
lot 86. to reciprocal negative easement. D was put on inq
uiry notice that the lotwas subject to restriction because all the surrounding l
ots were obviously uniformly built according to acommon plan. If D had inquired,
they would have found out that there was a reciprocal negativeeasement on their
Concl:
lot prohibiting
The lot contains
the building
a reciprocal
of a gasnegative
station.easement because the lot was retai
ned by its original ownerswhile others were sold with negative easements that be
nefited the lot, and the easement is enforceablebecause D were on inquiry notice
e.when
Facts:
Neponsit
they
Deedpurchased
Prop.
to landOwners
included
the Assoc
land.covenant
v. Emigrant
to payIndus
moneySaveach
Bankyear
(p for
875)maintenance of
public roads, beaches in thecommunity, unpaid money to be enforceable as a lien
against the property and enforceable by allassignees. Covenant included in all d
eeds of the land, including DÕs. Property owners associationbrought action to fore
close must
Issue:
Rule: lien
Is this
forbecovenant
1) non-payment.
the intention
enforceable
of theagainst
grantorsubsequent
and grantee purchasers?
that covenant run with
the land, 2) covenant musttouch and concern the land, and 3) must be privity of
Analysis:
2) estate
Touches
between
1)andFrom
concerns
promissee
instrument,
usually
or party
clearly
onlyclaiming
applies
intended
benefitand
tocovenant
negativeparty
toeasements.
runw/with
burden.
the land.sub
However,
stance rather thanform allows ct to find that this does touch and concern the la
nd b/c burden is for the benefit of the sameland that is benefited, and so is in
separably
3) Propertyattached
owners association,
to the land. as a corporation that doesnÕt own any of the land
in the community, hasno privity of estate with the burdened party. However, the
association exists solely for the benefit and tobe the voice of the owners of th
e land that is benefited. Again, applying substance over form, there isprivity o
f estate.
Concl: The lien is enforceable because the grantee and grantor intended the cove
nant to run with the land; theland burdened is the same as the land benefited so
that the burden is inseparable from the benefitedland; and the association, tho
ugh not in privity of estate with D, represents those in privity of estate withD
.f. Defeasible estate
1. Fees andisLand
another
Use property
Control Devices
law based way of controlling land. Thes
e are
2. Property
less importantin
is now moreterms
controlled
of landbyuse zoning
in US.
and covenants than defeasible fees
andIf
iii.
a.
1. Interpretation
easements.
Scope
language
of Covenants
is ambiguous,
of scope
(p of
893)
inrestrictions
favor of free enjoymentA) Want to allow personal
2.freedom,
A)
3. Covenant
Words
Covenants
will
economically
interpreted
are
notconstrued
be construed
better
reasonably
basedtoliterally
have
on but
thefewer
strictly
impact
if this
restrictions.
towould
the community,
create absurd
not on
results.
the priv
ateLook
A)
B) Courts
activitieswithin
atwant
the range
to respect
theimpact
of home.
privacy (Hill
that
butwould
v.still
Damien)
beaddress
createdtheby use
community
under the
impact.
covenant a
nd If
use
4. see
falls
language
if within
DÕs specifically
that range.prohibits, enforceable unless violates public policy
.b. Statutes tend to be given more deference b/c they are created by an elected b
Hill v. Community
c.
ody.
Community
Facts: is a homeofforDamien
4 people
of Molokai
w/ AIDS(pliving
893) together, taking meals together,
w/ nursing care coming
in but notOutline
Property living10/5/10
there. P10:49
started
AM complaining after there was a newspaper artic
le about Community. Thereare other homes in violation of the covenant in the nei
ghborhood. Neighbors (Hill +) say Community isviolating covenant that land is fo
r Òsingle residence purposesÓ only and that there is increased traffic. Dsays that t
hey are a family, and that to enforce the covenant would be a violation of the F
air Housing
Issue: Do theAct.
4 residents constitute a ÒfamilyÓ? Would enforcement of covenant viola
te FHA?Fair Housing Act: discriminatory intent Ð whether D is treated differently f
Rule:
rom other non-disabledsimilarly situated people. Disparate impact Ð Conduct actual
ly or predictably
Reasonable accommodation
resultsÐinFailure
discrimination.
to make reasonable accommodations to allow disa
bled personCommunity
Analysis: to usehome. is a family b/c they live together as a family. The purpose
is to create a group home dissimilarto an institution. Strong public policy Ð allo
wing disabled people to live outside of institutions and inresidential neighborh
oods, which can sometimes only be accomplished by group living. Increased traffi
cisnÕt part ofviolates
Additionally, the covenant.
FHA: There is a disparate impact, and not enforcing the c
ovenantCommunity
Concl: would be is areasonable
a single-family
accommodation.
because they live as a family. Enforcing the
covenant would violate FHAb/c it would discriminate against disabled individual
s byAs
iv.
a.
1. Changed
Termination
not
longallowing
conditions
as original
ofthem
Covenants
to live(pcan
purpose in911)
residentialneighborhoods.
still be accomplished and substantial benefit
is derived fromcovenant, covenant is valid even though property has greater val
ue Owners
A) if usedrelied
for otheron the
purposes.
promise in purchasing the land and should be upheld even
negative
if the impact would be less than the increase in value if the covenant were br
B) Conditions must change so dramatically that is doesnÕt make sense to enforce th
oken.
e covenant.
2. Changes must occur within the actual subdivision or area. Changes outside of
it When
3. are notzoning
enough.
and private covenants are in conflict, the more restrictive one a
4. Enforcement
pplies.
5. Land must bemay rezoned
not bebefore
as economically
covenant canefficient,
be inspected
but the
for objective
discard. is enforc
ing the promisesthat were made. There is a mutual restrictive benefit because, c
ollectively,
b.
1. Abandonment
For community
theandviolations
promisesrunning
waiver (also
to constitute
acquiescence)
against each
abandonment,
other creates
they must
a communal
be so general
benefit.a
s toEstoppel
A)
c.
1. Sporadic
Other
frustrate
defenses
violations
or theoriginal
acquiescence
to equitable
are not
purpose
Ð ifservitudes
enough.
other
of the
owners
agreement.
watch breach happen but donÕt say anyt
hing,
2. Clean
maybe
hands
helddoctrine
to be estopped
Ð if I violate
or havethe
acquiesced.
restriction, I will have a hard time fo
rcing
3. Laches
you ÐtoIffollowit
you unreasonably
because I delay
have unclean
in seeking
hands.
to enforce your rights, you may n
ot Covenants
d.
e. be able
R3d makestoenforce
covenants
are basedthem.
easier
on moretothan
create
justand
expectations
easier to (nuisance
terminate.law). They are b
ased on formalpromises that create real, legitimate expectations much more stron
glysubdivision
Western
f.
D,
Facts:
thanLand
nuisance
Co.developer
v.situations.
Truskolaski
wanted to(p build
911) shopping center in one area of subdivis
ion. Covenant that land insubdivision was for single-family homes only existed o
n all plots. Area around the subdivision has becomemore commercial and high traf
fic than it used to be. D argues this area has changed so radically that it hasn
ullified the purpose. Also argues that homeowner violations of the covenant (day
care in home, plot toosmall) are abandonment and waiver of covenant.
Issue: 1)Outline
Property Has the10/5/10
area so10:49
radically
AM changed that it nullifies the purpose of the
restrictive covenant? 2) Doviolations by other home owners constitute abandonme
nt and waiver
Analysis: Residents
of thestillcovenant?
derive benefit from covenant Ð not much traffic within t
he subdivision,
Changes outside arehomesnotareenough
well-kept.
Ð there must be changes within the actual subdivisi
on to nullify thecovenant. Even though city zoned area commercially, commercial
zones allow residential uses, whenzoning and private covenants are in conflict,
moreviolations
The
Concl:restrictive
Covenantofupheld.
one
theapplies.
covenant
If originalby homeowners
purpose canarestill
distantbe accomplished
and sporadic.and there
is still is
covenant a substantial
valid even though
benefit,property has greater value if used for other purpo
For community violations to constitute abandonment, they must be so general as t
ses.
o frustrate
g.
Facts:
RickRick
v. West
the (p
subdivided
originalpurpose
916)land, soldoftothehomeowners,
agreement.but had a hard time selling all
of land. Rick conveyedremaining land to P, who wanted to sell to hospital. West
Analysis:
objected Court
to usedoesnÕt
outsidegive of the damages
residentialcovenant.
to D in lieu of covenant enforcement. Landown
er has a right to enforce arestrictive covenant in her favor as long as the use
is Uniform
v.
a. not outmoded
Common Interest
CommonandInterest
Communities
it affords
Ownership
real925)
(p benefit
Act requires
to owner.
a declaration of rules that ar
e disclosed
1. Most CIC have
topurchasers.
homeowners associations that all owners are automatically membe
rs Restrictions
A)
b.
2.
3.
4.
c.
d.
e.
1. of. owners
Enforces
Generally
Condominiums
Each
Exterior
Pay
Assoc
Planned
All
Negative
Standards
monthly
individual
hasunit
covenants,
walls,
covenants
deeds
right
of
are
charge
developments
judging
in inthe
also
interior
land,
to vertical
for
assess
restricting
conditions,
deed
include
restrictions
and
upkeep
ofÐrepairs
arecommon
and
units
gated
attorneyÕs
afforded
and
horizontal
use
and
areas
are
for
and
communities,
almost
restrictions
owned
liability
charge
greater
are
fees
privity
always
owned
separately
provisions.
owners
presumption
privately
expenses.
and
by
held
oftheir
all
can
estate.
toinastouch
vote
owned
fee
share.
of
TIC.
reasonableness
inand
simple.
towns
newconcern.
CC&Rs. t
hanCA:
A) those
restrictions
added byassociation
in deed arelater.valid unless wholly arbitrary or contrary to pub
licThe
I) policy.
restrictions are evaluated by looking at the impact on the community as a
whole ofany such violation of the restriction, not at the individual homeownerÕs
II)Restrictions
violation.
B) The burden ofadded prooflater
is onarethegiven
challenger.
less deference: shifting standard of proof
2.orBusiness
have to judgment
bereasonable.rule Ð Focuses on the process: did they consider all the fact
s and
decision
A) If yes,
makeinthey
goodare
faith?
protected even if there were bad consequences or the decisio
n turned
be
B)
C) a really
Standard
Courts out
often
bad
used
to regard
decision.
to judge associations
decisions as by corporations.
corporate leadersTheyinhave business
attributes
matters.
of bot
h corporations
and
3. R3d
mini-governments.
Prop: Restriction enforceable unless lacks rational justification, but dr
aws a distinctionbetween direct (who you sell the house to) and indirect restrai
ntsDirect
A)
(paintrestraints
color) must be reasonable
II)IfIfyou
Property
I) assoc
Outline
musthasgetright
10/5/10
permission
of10:49
firsttoAMrefusal
sell, this
(right
is to
probably
meet any
unreasonable
other offer before th
e proposedcontract
4. There are also privacyis accepted),
issues:thishow far
is probably
into theenforceable.
private home does the court w
antNahrstedt
f.
Facts:to Nahrstedt,
reach?v. Lakeside
owner ofVillage
a condoCondo
in the
Assoc,
Village,
Inc. owns
(p 927)
three indoor cats in vio
lation of community restriction inthe master deed against pets other than birds
and fish.
Issue: Is the
P says
petsherestriction
didnÕt knowunreasonable,
about the restriction.
and can it be enforced against an ob
jectingRestrictions
Rule: home owner?in the recorded declaration are enforceable unless unreasonab
Analysis: Restrictions added later by the homeowners association must be reasona
le.
ble. Restrictions in the recordeddeclaration, however, are afforded a presumptio
n of validity that will be enforced even if they areunreasonable to some degree.
The burden of proof is on the objecting homeowner. Associations mustenforce res
trictions in good faith. Here, the homeowners relied on this restriction in purc
hasing Restrictions
Concl: theircondos, in andthe
haverecorded
not repealed
declaration
the restriction.
of a common interest development
the
areburden
enforceable
substantially
unless arbitrary,
outweighs the benefit, or violates public policy. The r
estrictions will be evaluatedby looking at the community as a whole, not at the
individual
g.
1. NY Co-operative
Title ofhomeowner.
land andApartments
building is(p held
942) by a corporation, each resident owns stock
2.andAllhasshare
a longmortgage
termrenewable
and taxes,lease,
so that
so that
all depend
they areonboth
the financial
owners andstability
tenants. o
f the
A)
X.
A.
i. Canothers.
Governmental
Eminent
Private
denyproperty
Domain
entryTaking
forcannot
(p 1093)
any reason.
be taken by the government for public use without jus
t compensation
a.
b.
c. 5th Amendment
14th
Understood
appliesas:toapplies
govt
statecangovt
totake
federal
(interpreted
yourgovt
property
to without
cover state
yourtakings
consentlater)
if they pay y
ou Generally
ii.
a.
1. and
Property
KeyitÕs
questions:
for
lookpublicuse,
to state law
although
(property
it isnÕt
law),written
but there
thatare
way.some federal proper
ty Usually
2. laws (patents).
deals with land b/c govt doesnÕt generally have use for personal proper
b. Taking is limited because it is unpopular, and govt has to pay for it using t
ty
1.
c. The
axes.
1.
A) Public
DoesnÕt
courts
use
havedefer
to betophysically
legislaturefortopublic
decideuse.
if itPublic
is forpurpose
a public
is purpose
enough. unles
s there
d.
1. Just acompensation
What iswilling
norationalbuyerreason
would(HHA
pay av.willing
Midkiff).sellerA) DoesnÕt take personal or sent
imental
2. Can bevalue
complicated
into consideration.
to determineA) If govt is only taking part, and the rest w
illBut
govt
B) becanthe
increased
offset
partialwhat
intaking
value
it owes
as you.
decrease
a resulttheofvalue
the of
newyour
use,other land, govt has to com
pensate
iii.
HHA
Facts:made
HI Housing
you
lawforthat,
forcing
Authority
too. v. owners
private Midkiffto(psell
1098)homes to T in order to more equitabl
y distribute propertyownership in HI. Law required a certain number of T interes
ted and able to buy from a single owner. If
owner andOutline
Property T couldnÕt
10/5/10
agree,
10:49
price
AM could be set by condemnation trial. HI set it up
Issue:
as a taking
Is forcing
so thatsaletheowners
to individual
wouldnÕt
tenants
have atopublic
pay asuse
muchallowing
taxes. a taking unde
r the 14thSubject
Analysis: Amendment?to constitutional limitations, if the legislature has determin
ed that a taking has a public purpose, thecourts must defer to this decision. Th
e courtÕs role in reviewing this decision is narrow, even when the govtis exercisi
ng a police power. It is the belief of the legislature at the time of passage th
at is examined,
Concl: Courts mustnotwhether
defer tothelegislatureÕs
law in factdecision
accomplished
of what
itsconstitutes
goal. public purp
oseRegulatory
B.
i. unless thetakings:
Takings
use is (p palpablywithout
Govt
1151)
so restricts reasonable
the usesfoundation.
to which land may be put that
it The
a.
taken.
has owner
effectively
still has
beentitle, ownership, the right to exclude, but there are lim
its Test:
ii. on theCtusesconsiders
that theowner
severalmayfactors
make when
of thedetermining
land. whether a taking has occ
urred
a.
b. The(Penn
economic
extent Central):
toimpact
which the
of the
regulation
regulationhasoninterfered
the claimant
with distinct investor expe
1. Look at expectations: If they knew it was restricted when purchased, maybe lo
ctations
werPer
c.
1.
2.
d. The
Can
Is
expectations.
there
character
the
se rule:
action
a reason
When
ofbethe
characterized
like
the governmental
regulation
health andasdeprives
action.
safety?
a physical
property
invasion?
of all value, it is a per
se taking that requirescompensation unless background principles of state nuisan
ce Tahoe-Sierra
1. lawÓ in the state
Preservation
would haveprohibited
CouncilÐ Imposed the 5-year
use. building moratorium. Court: m
oratorium isnot a permanent deprivation of all value. This limited Lucas. (Semi-
permanent
2. Causby Ðmaymilitary
be enough)landing base next door wasnÕt a taking b/c it wasnÕt on their lan
d. But, theyhad a chicken farm, and the chickenÕs couldnÕt take the noise of the pla
nes flying
iii. Reciprocity
overhead,
of advantages
sofound a Ðtaking
zoningoflaws
the are
airspace
ok b/cabove.
restricted property benefi
ts, The
iv. too.parcel is looked at as a whole, not whether segments have been completel
y taken
a. But, if planes flying through airspace negates ability to continue use of the
b.land,
Otherwise,
farming,govt
maywould
be ataking
have to(UScompensate
v. Causby,forp Òset
1160).backÓ regulations saying how cl
oseIfbuildingscan
c. the part (likeget the
to roads.
airspace) was sold to another party, then it may be a t
aking b/c it would betaking all of the property owned by that party. However, ct
would look at buyerÕs awareness of thelaw to see what the investor expectation wa
s (Lucas
v.
a. Distinguished
NeednÕt v.pay
SC if
Coastal
from
enjoining
nuisances
Council).
from harmful activities. But line may not be clear: ar
e they
vi.
vii. Taxation
Regulation
preventing
isnÕt
ofaharm
taking.
personal
or securing
propertyabynuisance?
destroying a strand in the bundle (eagle
viii.
parts)Dolan
is notÐ govt
a taking
rezonedb/cnot
so Pall
could
bundle
buildneeds
new store
to exist.
on condition that she allowe
d a public
Court foundbike
a taking
path.b/c the harm must be proportional to the condition if govt
is going
ix. Lorettoto Ðdorequired
that(highercompensation
burden towhen
factually
statesshow
required
publiclandlords
need). to permit cable
x.companies
Penn Central
to installcable
Transp Co. v. facilities
City of NYon (p
their
1151)
property. But only got $1.
Facts: NYCÕs
Property Outline
law to
10/5/10
protect
10:49
historic
AM buildings covers Grand Central Station. Plans
for modification of historicbuildings must get a certificate of no effect on fe
atures, a certificate of appropriateness, or a certificate ofappropriateness on
the ground of insufficient return. All are judicially reviewable. Development ri
ghts forhistoric parcels may be transferred to nearby parcels. Penn Central put
two plans for a 50 story tower throughthe first two review processes and were de
nied. They did not seek judicial review. The plans would havemade millions per y
Issue: Is NYCÕs regulation a judicial taking that requires just compensation? If s
ear.
o, is the transferability ofdevelopment rights enough to constitute just compens
Analysis: Regulations are judged largely on the particular circumstances of the
ation?
case. The Commission did notcompletely restrict the use of the air space above t
he station; it merely rejected two proposed uses. Thestation may still be used a
s it was originally. Takings law doesnÕt divide a parcel up into discreet segments
tosee which sections have been completely taken. Property is looked at as a who
The court will consider several factors when determining whether a taking has oc
le.
curred: the economic impactof the regulation on the claimant, the extent to whic
h the regulation
backed
Concl: expectations
NY historichaslandmarks
and
interfered
the character
lawwith
did not
distinct
of create
the governmental
investment-
a regulatory
action.
taking of Grand Cen
tral Station.

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