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Property is a social relation among persons. Property describes the relationships between the owners or owners and others. In common parlance, the object of property is often confused with the property relations. More precisely, the object of property is the object or right over which property rights exist. The 1L course on property is mostly devoted to property in land. The law recognizes property rights over objects, often called chattels, and intangible rights. For example, a lottery ticket comprises two property rights. The owner of a lottery ticket owns a tangible object (a piece of paper) and an intangible right (the right to receive money under certain conditions). ESTATES IN LAND Before describing the types of property rights recognized in the several States, it is essential to recognize that the number of possible property rights is limited. Scholars often use a term borrowed from the civil law, numerus clausus, since the common law has no adequate term. Numerus clausus literally means closed number, reflecting that only a fixed number of property rights are recognized. Why does the law permit freedom of contract, but not freedom of property? The reason is that land is unique among objects of property in that land is immovable and persistent. If the landowner created a novel property right that made future use impossible, adjacent landowners would suffer also. There is no similar justification for intangible rights, most of which expire. Since land outlives the owner, novel property rights are unwise for two reasons. Firstly, the future is uncertain and property arrangements that made sense in 1900 might not make sense in 2000. Secondly, the owners interests are more limited in time. The owner is interested in maximizing the value of the property during her life and may not care about what use the land is put to decades or centuries later. Fee simple (sometimes fee simple absolute) is the most common estate in land. The fee simple suffers from no limitations and persists forever. Fee simple may be alienated during life, devised at death through a will, or descend according to state law, if no will is written. Like other estates, fee simple All common law states presume the transfer of a fee simple unless the conveyance indicates otherwise. Generally, grantors must be very careful to use the right words to ensure that other than a fee simple is conveyed. Thus, O to A conveys fee simple. The next most common individual estate in land is the life estate or life interest. Unlike fee simple, the life estate expires with the life that measures it. Since the holder of a life estate cannot convey more than what they own, the interest conveys terminates upon the death of the original holder. Thus, O to A for life creates a life interest and A to B conveys the life interest to B, measured by As life. If the grantor does not specify who owns the property after the life interest expires, the property reverts to the grantor. Alternately, the grantor can specify who receives the property in fee simple after the life interest expires; that interest is called a remainder.

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The life estate creates an exclusive present possessory right over the object of property. The holder of a life estate is entitled to the income generated by the property. Her rights to change and her obligations to preserve the object of property are dictated by the doctrine of waste. CO-OWNERSHIP All common law states recognize two types of co-ownership and some states recognize a third. Today, the default co-ownership is the tenancy in common. Thus, O to A and B will create a tenancy in common. Unless otherwise specified, each tenant in common owns an identical share. A tenancy in common can be alienated during life, devised upon death, or descend according to state law. The second form of co-ownership is the joint tenancy, which requires four unities: time, title, interest, and possession. The unity of time requires that joint tenants acquire their interests at the same time. The unity of title requires that each joint tenant holds the same rights, thus a restriction or condition on one tenant would defeat that unity. The unity of interest requires that each joint tenant own an equal share. The unity of possession requires that each joint tenant have equal rights to possess the entire object of property, meaning that one joint tenant cannot be assigned a portion of the land. The most distinctive feature of the joint tenancy is the right of survivorship. Upon the death of a joint tenant, that share will pass to the other joint tenants by operation of law. The last surviving joint tenant owns the property in fee simple. A joint tenancy cannot be devised or descend, since there is no property right that survives death. If a joint tenancy is alienated, that portion becomes a tenancy in common. Note that the joint tenancy converts only for that tenant. If A, B, and C are joint tenants and A conveys her interest to D, then D will be a tenant in common with B and C, but B and C will be joint tenants to each other. Some states recognize the tenancy by the entirety, which is a variant of the joint tenancy. Only married couples can be tenants by the entirety. In addition, one tenant by the entirety cannot alienate their interest without the permission of the other. Some states allow creditors of one spouse to reach property held by the entirety, but a plurality do not. WASTE, ACCOUNTING & PARTITION The doctrine of waste governs both life estates and concurrent co-ownership. The life tenant cannot manage the object of property to the detriment of the future owners. Similarly, a joint tenant or tenant in common who manages the property cannot dissipate the shared property. The doctrine of waste can extend to improvements on the property. Generally, state law allows the life tenant or managing co-owner to improve the value of the property. State law is sufficiently varied and at times uncertain that improvers may need to seek judicial sanction if the other interested parties do not consent. In particular, some states treat the sale of mining or timber rights as waste per se. Joint tenants and tenants in common may seek an accounting from their co-owners if one owner receives more than her share of income or pays more than her share of the costs. Co-owners who do not manage the property are entitled to their share of the income generated, after deduction for costs. The co-owner who pays property taxes may seek contribution from her co-owners. Courts are

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less likely to require co-owners to contribute to necessary repairs, especially since co-owners will likely disagree over the necessity and scale of the repairs. Except for tenants by the entirety, co-owners can petition a court to partition the property. Although courts frequently describe partition in-kind as the preferred option, courts generally order a partition by sale. Where a partition in-kind cannot achieve justice to all the owners, one or more of the owners may be required to pay owelty. Owelty compensates those who receive less than their fair share in an in-kind partition. THE TRUST To create a trust, the grantor (or settlor) must identify the corpus or res (assets), the trustee, and the beneficiaries. The trust document should identify the grantor, corpus, trustee, beneficiaries, and any conditions imposed. The trust document does not have to identify the corpus, trustee, or beneficiaries by name. Instead, the trust must provide for a clear mechanism for determining what assets will become the corpus, how the trustee is to be selected, and which class of persons are the beneficiaries. The trustee holds legal title, while the beneficiaries hold beneficial title. The trustee is bound to manage the res on behalf of the beneficiaries according to the instructions in the trust. Since the trustee holds legal title, she can alienate, pledge, or otherwise deal with the assets in the res. The trustee may not deal herself with the trust; a beneficiary may void any transaction between the trust and the trustee. MARRIAGE Although state law varies, all community property regimes share certain characteristics. All property is either community or separate. Separate property includes all property acquired before the marriage and after the couple separates. Also, property acquired by gift or inheritance during the marriage is separate property. Community property includes all property (including income) acquired during the marriage, except by gift or inheritance. The remaining forty-two states have replaced the outdated common law rules with a variety of rules for dividing property upon divorce. Legislatures generally describe the property division as equitable. In some states, all property is divided upon divorce. In other states, only marital property (as defined by statute and case law) is divided. Professional goodwill is treated by most states as divisible marital property. New York is one of the few states to treat professional degrees and celebrity as divisible marital assets. ADVERSE POSSESSION Adverse possession allows possessors to become owners. State law defines adverse possession; four elements are generally required. The possessor must show 1) an entry, 2) which is open and notorious, 3) continuous for the term, and 4) hostile to the record owners interest. In some states, the fourth element is under claim of right or claim of title. A hostile claim is one inconsistent the owners rights. In contrast, a claim of right or title requires the possessor believe that the property belongs to her.

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The requirement that entries be open and notorious is understood to be objective. Thus, the record owners lack of knowledge is irrelevant. Instead, the possessor must show that the entry was sufficiently visible so that the record owner was put on notice. The doctrine of tacking allows someone claiming adverse possession combine the prior possession of those in privity. Thus, if the required term is 10 years and A entered more than 10 years ago, then sold to B, who sold to C, then C can satisfy the term by tacking on the possession of A and B. Generally, land owned by the government cannot be claimed by adverse possession. A few states permit adverse possession, although the term may be longer. Some state distinguish between land held by government as government and land held like other owners. In every state, the statute of limitations is extended if the record owner is under some disability. Note that the disability must exist at the time the cause of action accrues. THE LEASE Leases allow owners to transfer possession for a period of time. The common law recognized three leases: fixed, periodic, and at will. Leases longer than one year must be memorialized in writing. A periodic lease renews itself automatically at the end of the period. If the lease is silent, state law generally presumes a periodic term of one month. In that case, notice to end the lease must be received at least a month in advance. For example, notice on March 15 is effective on April 30. A lease at will terminates upon notice by either party. State law defines the presumed terms when the lease is silent and which terms can be altered by agreement. At common law, owners had no duty to mitigate if the tenant abandoned possession during the lease term. The modern rule requires the owner take reasonable steps to find a new tenant, consistent with contract law principles requiring mitigation. Many leases include an express covenant (promise) of quiet enjoyment, even though the covenant is implied. Quiet enjoyment means that the renter will be able to use the property without disturbance. If the owner breaches the covenant, the renter can assert a constructive eviction. The renter can stop paying rent, but must vacate. Most states imply a warranty (guarantee) of habitability, which imposes on owners the duty to provide housing of a minimum standard. Courts generally rely on state and local housing codes to determine habitability. Renters may sue for damages and rescission. In addition, renters can assert a breach of the warranty as an affirmative defense. CIVIL RIGHTS The Civil Rights Act of 1866, 42 U.S.C. 1982, grants all citizens the same rights as whites to inherit, purchase, lease, sell, hold, and convey real and personal property. The Fair Housing Act of 1968, 42 U.S.C. 36013619, 3631 bans discrimination for race, color, religion, sex, familial status, or national origin. 3604 extends its protections to all persons and reaches a much broader range of actions, including advertisements and the failure to allow reasonable accommodation. Note that 3603 creates the Mrs. Murphy exception which allows some owners to discriminate against tenants. The Mrs. Murphy exception applies to owners who

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own no more than three single-family homes or live in a multi-family dwelling of no more than four units. Note that the Mrs. Murphy exception does not apply to discriminatory advertisements. LAND TRANSACTIONS The Statute of Frauds requires that all land sales be memorialized in writing. Courts have created two exceptions: part performance and estoppel. If one party has begun performance, courts grant specific performance even where there is no written agreement. The doctrine of estoppel applies when one party has changed her position in reliance on the contract. Also, estoppel applies to prevent unjust enrichment, if the party trying to escape the agreement because it has not been memorialized in writing has received a benefit. Sellers may be required to disclose latent defects. Where the seller has affirmatively misled the buyer, the buyer can rescind the sale. Many jurisdictions impose on sellers a disclosure obligation by statute. The doctrine of merger held that when the buyer accepts the deed, she acknowledges that all contractual obligations have been met. Thus, the buyer can sue on the contract of sale, but only on the warranties included in the deed. Fraud and collateral contractual promises are exceptions. The doctrine of merger is waning and riddled with exceptions. Most commonly, courts hold the particular obligation at issue to be collateral. Many construction and repair agreements include an express warranty of quality, even though an implied warranty is imposed by state law. Many courts do not require privity, instead holding builders liable for breaches of the warranty even after the property has been conveyed. In every state, recorded conveyances are privileged over unrecorded ones. In states with race recording statutes, the first recorded conveyance trumps all subsequent ones. In states with notice recording states, a subsequent purchaser must have no notice of the prior transfer. In states with race-notice recordings statutes, like Ohio, the subsequent purchaser must have no notice of the prior transfer and record first. If O conveys to A and then B; B prevails under a notice statute, but not under a race-notice statute, if B had notice of Os conveyance to A. Title insurance pays the buyer (or lender) if the title conveyed to the buyer is defective. Mortgage lenders require title insurance; insurance beyond the loan amount protects the buyer, but at additional cost. Title insurance generally excludes defects in title that cannot be determined by a search of public records. NUISANCE A landowner can impose costs, called negative externalities, on nearby landowners. Nuisance law governs when nearby landowners can enjoin the nuisance or recover damages. Nuisance is best understood a tort doctrine within property law. In fact, nuisance is discussed in the Restatements of Torts, not Property. The Restatement (Second) describes two categories of nuisance: intentional and unintentional. Intentional refers to the act, not the harm. If intentional, the interference in the use and enjoyment must be unreasonable. In contrast, an unintentional act must be negligent, reckless, or abnormally dangerous.

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Plaintiffs can seek temporary or permanent damages or an injunction. If the plaintiff acquires the land after the defendant has begun the harmful activities, courts often find the plaintiff came to the nuisance and find for the defendant. Nuisance protects the ordinary landowner, not the abnormally sensitive one. SERVITUDES The most important non-possessory interests in land are easements and covenants. An easement is the right to do something on anothers land. Covenants are promises that run with the land. The common law recognized several other non-possessory interests; all are extinct except the profit-prendre. The term profit itself is nearly extinct since most agreements label that right a license or lease. Since servitudes are interests in land, the Statute of Frauds requires that servitudes be reduced to writing. Servitudes should be recorded like other interests in land. Unrecorded servitudes do not put future owners on notice; without notice, future owners are (generally) not bound. Like with other conveyances, courts recognize several exceptions to the general rule requiring writing and recording. A license is permission to do something on anothers land. Unlike an easement, a license is not an interest in land and therefore need not be reduced to writing unless the purpose of the license cannot be accomplished within one year. Unless the parties agree otherwise, licenses are revocable at will. Some states recognize estoppel as an exception, making certain licenses irrevocable. Note that the Restatement (Third) 1.2(4) treats irrevocable licenses as easements. All servitudes can be terminated for (at least) seven reasons. 1) A written and recorded release by the benefit holder extinguishes the burden. 2) Merger extinguishes a servitude when the benefit and the burden come to be held by the same person. 3) Where the plaintiff has acquiesced to breaches in the past, but then seeks to enforce the servitude. Note that acquiescence is limited to that particular defendant. 4) Where the plaintiff has abandoned enforcement, the servitude cannot be enforced against anyone. 5) If the plaintiff violated the servitude herself, the equitable doctrine of unclean hands allows the court to refuse to enforce the servitude. 6) If the plaintiff delays unreasonably in seeking to enforce the servitude, laches will bar her suit. 7) If the defendant has relied on the plaintiffs actions, then the plaintiff is estopped from enforcing the servitude. EASEMENTS A common positive easement is the right to cross land. Negative easements are the right to prevent the owner from doing something. For example, a faade easement prevents the owner from changing a buildings faade (to preserve its historical or architectural value). Easements that benefit an individual are termed in gross. For example, utility companies hold easements in gross, allowing the company to maintain infrastructure on private property without owning the land. In contrast, an appurtenant easement runs with the land, allowing future owners to enjoy the benefits of the easement. The property burdened by the easement is called the servient tenement. If the easement is appurtenant, the property that enjoys the benefit of the easement is called the dominant tenement. Note that all easement must have a servient tenement, but only appurtenant easements require a dominant tenement.

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Courts may imply an easement where the parties neglected to write or record an express easement. Where the owner sold a landlocked parcel, courts will imply the grant of an easement of access across land the owner retained. Where the owner retained the landlocked parcel, courts may imply the reservation of an easement of access across land the owner sold. There are two reasons why courts are more likely to imply an easement by grant than reservation. Firstly, landowners are presumed to be more familiar with the land, imposing on them a greater duty to identify easements. Secondly, conveyances are drafted by the grantor and contracts are interpreted against the drafter. In several western states, landowners can condemn a private way of necessity across neighboring land. To take land, landowners must show necessity and pay compensation. Where state law does not allow private takings, courts are more likely to imply an easement because landlocked land is generally unusable. Easements by prescription share the same elements as adverse possession: an entry, which is open and notorious, hostile to the owners interest, and continuous for the term set by statute. Unlike adverse possession, someone asserting an easement by prescription need not show exclusivity. Easements do not imply exclusive possession, since both the landowner and the easement holder have rights to use the land burdened by the easement. Prescription is often hard to establish since courts presume landowner permission, which is often hard to disprove. Using an easement to benefit another parcel besides the dominant tenement is misuse per se. As a general rule, the owner of the servient tenement is entitled to an injunction preventing any use for the benefit of another parcel. COVENANTS Covenants are promises that run with the land. The Restatement (Third) discards the technical rules of the common law. Instead, covenants must be reduced to writing and recorded. Covenants are presumed to be valid unless the covenant is illegal, unconstitutional, or against public policy. In particular, public policy invalidates spiteful or capricious servitudes or covenants imposing an unreasonable restraint on alienation. Even if the covenant is valid at inception, changed circumstances may render the covenant invalid. Except where superseded by statute, changed circumstances is a demanding test. Whoever is seeking to show the covenant is invalid must show that the original purposes are frustrated, not that another use is better. New York and Massachusetts have enacted statutes that change the standard, while directing courts to award damages rather than an injunction. Racially-restrictive covenants are invalid under the Restatement (Third) since those covenants are unconstitutional. Enforcing a racially-restrictive covenant requires state action, which violates the Equal Protection Clause of the Fourteenth Amendment. Enforcement would require two state actions: first, a judge would order the buyer to leave on account of her race; and second, a sheriff would enforce the order removing or barring the buyer on account of her race. ZONING Every state authorizes local government to regulate land use through zoning. Euclidian zoning regulates by restricting activity. In residential zones, commerce and industry are not permitted. More

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than one residential zone is common, separating low- from medium-density uses. For example, R-1 might be restricted to single-family homes, while R-2 permits townhomes. Apartments may be restricted to commercial zones, but may be allowed in less restricted residential zones. Euclidean zoning is generally cumulative, allowing single-family homes in zones that permit townhomes. There are some limits on governments zoning power. Zoning laws may not infringe on constitutional or civil rights. TAKINGS The Fifth Amendment restricts the pre-existing right of the sovereign to expropriate private property for public purposes. Firstly, the government may not take private property except for public use, which has been interpreting to mean a public purpose. Secondly, the government must compensate the owner. A permanent physical occupation is a taking per se, no matter how small the occupation.1 If the action restricted by government is a nuisance, there is no taking of private property and no compensation is due.2 In 1791, taking was understood to mean physical deprivation. No regulation, no matter how restrictive, was understood to be a taking. Starting in 1922, the U.S. Supreme Court developed the doctrine of regulatory takings, finding that some restrictions are equivalent to takings and therefore require compensation. A regulation that deprives the landowner of all beneficial use of the property is a taking, unless the landowner never had the right to do what the regulation prohibited.3 Lucas equates that no right with nuisance and other background principles of state law. That the regulation predates acquiring the property does not automatically make the regulation a background principle.4 Lastly, moratoria that temporarily prevent development are not takings per se.5 If no categorical rule decides a takings challenge, the court must consider the Penn Central balancing test.6 The balancing test weighs the governmental interest against the reasonable investment-backed expectations of the landowner. Of particular importance is whether the landowner can earn a return under the regulation. If the government conditions building permission in a quid pro quo, the quid and quo must share an essential nexus7 and be roughly proportional.8
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Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419 (1982). Hadacheck v. Sebastian, 239 U.S. 394 (1915). Lucas v. South Carolina Coastal Council, 505 U.S. 1003 (1992). Palazzolo v. Rhode Island, 533 U.S. 606 (2001). Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency, 535 U.S. 302 (2002). Penn Central Transportation Co. v. New York City, 438 U.S. 104 (1978). Nollan v. California Coastal Commission, 483 U.S. 825 (1987). Dolan v. City of Tigard, 512 U.S. 374 (1994).