Beenish's Property Outline

Beenish’s Property Outline
I. Acquiring Property by Capture

a. Possession: it is not static and is sometimes used as a legal fiction because the property right promotes the interest
in the case and sometimes the community at large. Promotes peace and order in society
i. Rule of Capture. Actual possession is required to gain a property right in wild animals. Pierson v. Post
1. Actual Possession. Includes (a) physical possession, (b) mortal wounding and continued
pursuit and (c) trapping in nets.
ii. Constructive possession: punishes disruptive behavior, and is not tangible possession but it gives you a
right because there is a policy that the court wants to promote
b. Pierson v. Post –“First in time” arguments
i. Post was originally hunting the fox and Pierson came in and killed the fox in the middle of his hunt
ii. Post should be able to have the fox because he was “first in time” to hunt, Pierson was “first in time” to
kill the fox and thus has a right to take the fox
iii. to gain ownership you can physically possess it, mortally pursue it or deprive it of its liberty
iv. A hunter must either trap or mortally wound a wild animal in order to acquire title to it
c. Ratione soli—constructive possession, you are not physically holding the fox, but you have done enough and we
want to pretend that you have the rights to this fox, an owner owns anything on their land
i. designed to prevent trespass
d. Exceptions to rule of capture
i. Custom—Ghen v. Rich
1. whale of a case on customs 
2. Big whaling industry in Massachusetts, the whales are killed, they sink to the bottom and in
several days they float back up and someone finds them—if the person who did not kill the
whale finds it, custom is to contact the person who shot it and the shooter usually gives the
finder a salvage fee.
3. here, Rich saw the whale, claims it as his own and auctions it off to the highest bidders—
Ghen clearly wants it back
4. considered five factors for applying this custom
a. application must be extremely limited
b. long recognized
c. requires the only act of appropriation possible (meaning there is no other way to get
the whale)
d. necessary for survival of the business—if we don’t give the whale based on this
custom then whaling will most likely stop
e. works well in practice
5. Title to a wild animal is acquired when a hunter apprehends the beast in accordance
with custom
e. Malicious interference: Keeble v. Hickeringill

i. Defendant drove ducks away from plaintiff’s decoy pond with gun shots in order to save the ducks.
1. a person may not maliciously prevent another from capturing wild animals in the
pursuit of his trade
2. HAD defendant set up his own duck decoy that would have been allowable because then
defendant is trying to make his own living
a. Ex. You start your own school and lure all the students away from another, it is
perfectly legal (good for you!) but if you stand on the road in front of the school with
a shotgun telling people not to come near, then there is action.
3. malicious interference is not allowed, but market competition is fair game.
f. Fugitive Resources
i. Courts have extended the rule of capture to “fugitive resources” because They are difficult to capture, and
have tendency to escape and share characteristics of wild animals
ii. There are other options other than the rule of capture, but it depends on what our policy goals are in using
the particular resources
II. Economic Theory of Property Rights
a. Externalities are costs that a user does not have to take into account in deciding how to use a resource
b. I own a factory and I gain $100 profit for every day that its operated, but there is $1000 of harm/day imposed on all
of my surrounding neighbors by pollution
i. This creates a net loss of $900 for the community, but I don’t care because everyday I am getting richer—
so will I continue to operate my factory? Yes because I am making money
ii. If my neighbors got together and offered me some money between $100 and $1000 (lets say $500/day not
to run the factory), thus I am gaining $500 rather than $100 and neighbors are only losing $500, and
everyone will now be better off but why don’t they do that?
1. because I have no way of controlling my neighbor joe who decides to open up a similar
factory next door
2. plus trying to get people together is costly and time consuming, the $1000 may be dispersed
over 10,000 people and thus the damage is unnoticeable (this is transaction costs)
a. the “Free rider” problem, I don’t need to bother to contribute, because everyone else
does so I don’t have to
iii. if the cost of the transaction is going to outweigh the benefit of the transaction then no one is going to
engage in it
c. what if I own factory and all surrounding land? Thus I am gaining $100 but losing $1000 with a net loss of $900
thus I will not operate my factory
i. the consolidation of the ownership of the land forced me to take externalities into account when deciding
whether or not I want to own and operate my factory
d. how are externalities related to the problem of common property?

i. Common property will be exploited but not cared for because there is no benefit in up keeping communal
property
ii. The loss to the community is spread out to everybody and I am not forced to take that loss into account
because I am not directly baring the cost
iii. When property is private, the losses directly effect them, and I directly weigh whether it is worth it to
drain, pollute, etc.
iv. Free-riders and hold-outs (if one person in the community refuses to agree to the idea which the
community puts forth to benefit everyone)
e. In what two ways does private property reduce the problem of common property?
i. People who own land privately will use the land more efficiently because the cost directly effects them
ii. Reduction in transaction costs and costs in negotiating
f. American Indians is used to illustrate his point
i. Hunting land is common property so what happens when fur is no longer valuable?
1. when Europeans come over and offer $10/fur, the resource is greatly drained because there is
an incredible incentive to hunting whereas before it was simply for survival purposes
g. bottom line: common property=over-exploitation!!
i. Benefits of private property: higher concentration of costs and benefits, and reduced transaction costs
BUT I don’t care about my neighbors until someone forces me to
h. What solutions, other than privatization, can help address the problem of “the commons” (aka stuff that we can’t
possibly privatization such as oceans at atmosphere)?
i. Create legislation, make them government property, bring it to the attention of the people, impose tort
liability and force you to assume externalities via nuisance, etc.
i. Whats the point of all this?
i. In every case, we have to ask whether or not the answer is privatization, tort liability, criminal and civil
law, government entities
III. Theory of property rights
a. International News Service v. Associated Press
i. Where a company has expended resources in creating news and information, the creator can exclude
others from copying it until its commercial value as news has passed away
ii. INS was stealing APs news
1. Issue: Should INS be allowed to take news found in Associated Press bulletins and resell it
on their own for profit?
iii. The trial court issue injunction on points I and ii but not the copying news as unfair trade practice because
it was a novel issue to the court
iv. News isn’t creation of a writer but a report of an occurrence
v. News is public property, but it is a different story when people make it a business
vi. While it is normal for western cities to take news from the east, that still does not make it okay to
admittedly take news which others worked hard to accumulate and turn it over for a profit for yourself
vii. the question of the court is more unfair competition of business rather than copyright law on news
viii. holding: AP can exclude others from copying it until the commercial value is gone
1. news is quasi-property between competitors in the news distribution business
2. court wants there to be economic incentive for AP to continue publishing its news
3. if they didn’t give AP rights then they may stop their service
ix. INS holding: as between competitors in the news distribution business, news will be treated as “quasi-
property” such that copying the news will constitute unfair business competition
b. Cheney Bros. v. Doris Silk
i. Doris Silk Corp. copied a fashion design from Cheney Brothers, and all the designs had a short life
ii. Unless the common law or the patent or copyright statutes give protection from appropriation, a
person’s property interest is limited to the chattels which embody his creations
c. Smith v. Chanel
i. Chanel No. 5 was copied by Smith who sold it at a cheaper price, court ruled in favor of Smith claiming
that “imitation is the lifeblood of competition”
1. encouraging copying increases competition and improves the quality of products while
driving the costs down
ii. what accounts for the conflicting results in Smith and Cheney on the one hand, and INS on the other?
1. Smith is relying on utilitarian theory
a. The lower court was relying on natural rights and had ruled in favor of Chanel (John
Locke’s labor theory)—competitors should not be able to take a free ride
iii. INS was focusing on fairness arguments, but Smith and Cheney were focusing on efficiency arguments
1. Chanel should have had their product patented
d. Competition v. Monopoly
i. IP cases reflect tension between desire to stimulate creation by awarding monopoly rights versus the desire
to reduce the cost and increase the quality of goods through competition
1. if I couldn’t afford chanel, I should be able to get chanel knock-offs
ii. congress struggles with this problem and are embodied in our statutes of copyrights
iii. Intellectual Property Rights
1. patents
a. they are for non-obvious processes, machines and inventions
b. give the holder an exclusive right to create the product for 20 years after the
invention was created and after 20 years the patent can’t be renewed, which sends
pharmaceutical companies in a “tizzy” because their expensive drugs are now going
to be recreated
2. copyrights
a. protect the expression of an idea
b. now they are automatic, as soon as you express an idea and they last the life of a
creator plus 70 years
c. allowed fair use exception which allows certain excerpts to be used
d. why are copyrights so much longer?
i. Because often ideas are inherent in the creator, there is usually a greater need
for goods under patent or inventions then there are the written word or ideas
3. trademarks
a. words or symbols associated with a product (cheerios, coke)
i. protects the mark not the products themselves
b. last indefinitely unless the mark or the name becomes so associated with that product
that people cannot advertise their own product without using the name (ex. Xerox)
e. White v. Samsung Electronics
i. Vanna White sues and wins because Samsung used a commercial that portrayed a blonde robot in front of
a wheel of fortune game board because they should not be allowed to use anything that will remind people
of her (violates her right of publicity)
ii. We have the dissent who felt it was ridiculous to let Vanna win
1. it wasn’t even supposed to be her because it was 2020 and a robot—clearly the robot had
taken her job!
2. limiting the right to parody is preventing free speech under the first amendment
3. hard to determine what does and does not exactly remind others of someone’s likeness
a. limits peoples creativity
b. you cannot control peoples thoughts and ideas
c. maybe it is ABCs right because they created the character—not Vanna
4. intellectual property rights are exposed at the expense of the future and therefore is a careful
balance between the owner and the public domain
f. MGM v. Grokster Ltd.
i. MGM was suing the owners of Morpheus who used p2p network instead of one large source
ii. Court ruled that it was complete copyright infringement because it was impossible for MGM to go after
every person that stole off of morpheus thus imposed liability on the software distributor
1. they needed to show that they had knowledge that their program was being used for illegal
copyright infringement—since they didn’t deny that they knew it so they are held accountable
2. Grokster went out there and attempted to gain customers with the knowledge that they were
going to get said customers who were more likely than not going to use the software for
illegal means
IV. Limits to property right
a. Moore v. Regents of Univ. of CA
i. A doctor has a duty to disclose the extent of his research and economic interests in a patient’s body
parts. Human body parts are not property such that they may be converted
1. “Mo’s cell line” is so legally and factually different from his cells that it cannot be considered
“him”
2. Product of human ingenuity, not nature—but do these arguments even pose a relevant case?
He doesn’t want the patent, he wants the property rights
ii. 3 reasons that there is no liability now
1. no case law in point
2. statute limits Moore’s rights so what’s left over can’t be considered property
3. cell line can’t be his property because is legally and factually different
iii. 3 reasons not to extend liability
1. fair balancing of policy considerations
a. patient’s right to autonomy v. threatening researchers with civil liability because cells
they do research on were taken without consent
b. duty to disclose will not hinder scientific research
c. could solve the problem by having a consent form be attached with
2. problems in this area are better suited to legislative resolutions
3. duty to disclose adequately protects Moore and patients like him
b. Jacque v. Steenberg Homes, Inc
i. Defendant was delivering a mobile home but the path that he needed to take was impassible (snow storm).
Defendant asked plaintiff if he could go through his land because of this reason and plaintiff said no,
defendant did it anyway, plaintiff sued for intentional trespass
1. jury awarded $1 nominal damages and $100,000 punitive damages
a. court invalidated jury award
2. supreme court decided to reinstate the $100,000 because the right to not have others cross
your land is meaningless is government does not enforce it—otherwise people may resort to
“self-help” remedies (shooting at trespassers or other violent or dangerous backlashes).
Punitive damages may be imposed for intentional trespass to property
c. State v. Shack
i. Defendants went on land to speak to migrant farm workers about their rights (one for medical reasons and
one for political) landowner refused to let them on his land without his supervision
ii. Defendants were convicted of trespass but was overturned

1. established that government workers have a right to access migrant farm-workers (case was
picked to establish this precedent)
2. migrant workers are not slaves to the landowners
iii. property rights may not be exercised so as to endanger the well-being of others
d. government limitation on right to exclude (firefighters, civil rights workers)
i. there are certain people who are allowed to trespass for the good of society (usually it is of necessity)
ii. economic argument against limiting the right to exclude
1. limiting the right to exclude would be bad for the farmer because the the workers will refuse
to work there and then the farmer will be SOL for the season because he chose to exclude
iii. government will not let migrant workers contract to waive their right to this government aid—mostly
because they will be unaware of what they are giving away
V. adverse possession (AP)
a. adverse possession is a means of acquiring title to real property through possession for a statutory period
b. If someone abandoned their property and someone has been using it, it encourages economic efficiency to give him
some rights to it
i. You can’t sue forever, theres a SOL and you’ll lose your rights when that is over
c. Earning theory
i. Reward the adverse possessor for his possession
1. we think that he is being efficient and making good use of this land
2. he has developed legit expectations over the coarse of statutory period
d. sleeping theory
i. penalize the owner for sleeping on his rights
1. you had 20 years to make a case and didn’t do it. By failing to do so you let the other person
rely on these expectations
ii. SOL
1. Procedural role that adverse possession plays
2. documents get lost, people die
iii. marketability of title
1. want to make sure people can transfer it, etc and we need to be able to do this by making sure
that you own it
2. adverse possession helps acquiring title after long periods of use
e. elements of adverse possession
i. an actual entry giving exclusive possession
ii. that is open and notorious (meaning “actual knowledge thereof”—the person who actually owns the
property is fully aware of what you are doing—if it’s a tiny steal—15 inches—you have to tell them if you
are aware that you are doing it—but if your taking 30 acres, its big enough that the mere act of taking it is
informative enough)
iii. adverse/hostile and under a claim of right/title
1. adversity is without the owners permission, some courts require intent (this is where the three
intent theories come into play: subjective, good faith and adverse trespasser)
iv. and continuous for the statutory period
1. every state has different elements and most often courts are going to interpret traditional
elements (so one of these may not be used)
f. Van Valkenburgh v. Lutz
i. The Lutz’s occupied the Van Valkenburgh’s land by building a one bedroom shack on it, by cultivating a
garden on it, and storing rubbish on it. In another action to establish the right of way across the land, the
Lutzes admitted that the land belonged to the Van Valkenburgh’s
ii. In order to acquire title by adverse possession, possession must be actual, it must be under claim of
title, and the land must be either enclosed or sufficiently improved
iii. Which elements of adverse possession are at issue in the present case?
1. actual entry
a. the general standard is the use that an ordinary true owner would make of the
property so that other third parties would know that this person has control of the
property (ordinary use)
2. claim of right
a. main requirement is that you not be acting with consent of the owner because if you
weren’t it would not permit hostility (can’t be hostile if the owner allowed you)
i. we don’t want to lull the owner into permission, and then 10 years down the
line AP is claimed
iv. adversity/claim of title requirement (court claims there are three different tests):
1. objective intent: we don’t care what the AP was thinking, we just care what his actions were
and if they were enough to give the third parties notice of the claim
2. good faith test: AP has to think that it was his when he used it
3. aggressive trespasser: AP has to think that he did not own it but intended to make it his own
anyway
g. color of title
i. claim that is founded on a written instrument (a deed or a will) but is somehow ineffective
ii. when you claim AP, you may be able to get title to everything that is on the deed if u had constructive
possession
iii. actual possession of part of the land that is deceived in the faulty deed will give you title of all of the land
on the faulty deed
iv. historically they came into play in the west because you couldn’t know who had faulty deeds and who was
swindled and who owns what
h. Mannillo v. Gorski
i. Defendant made improvements on their home shortly after they bought it, they did not know, but it
encroached onto the plaintiff’s land by 15 inches
ii. New Jersey law stated that if you do not use your property for the first twenty years, it is up for grabs after
that (sol runs out)
1. the main doctrine, however, is that your intent must be absolute and a mistake that it is your
property doesn’t fly
a. it must be intent to claim (hostile)—close to aggressive trespasser, but a slight
difference
b. courts criticize this doctrine because it rewards people that lie and claim that it was
not a mistake when it actually was
2. the court rejects this doctrine and takes the French doctrine that says all that is required is and
act—objective intent is going to be adopted now instead
a. you don’t have to have done it in bad faith
iii. possession need not be knowingly and intentionally hostile, but it must be notorious to give the true
owner actual or constructive notice of the encroachment
iv. instant improver doctrine: if you improve land believing that it is your own, then the true owner may, in
certain instances, be forced to sell you the improvement provided that the sale of the improvement does not
cause substantial harm to the rest of the property
1. What if you intentionally improved someone else’s land on purpose?
a. Then you can be forced to remove the stairs or sell the stairs to the true owner
b. Thus in this case there is a liability rule
i. Howard v. Kunto
i. first owner of the property built house on the property adjacent to the land he actually owned, the guy who
owned that land did likewise, as did the guy next to that guy (so three houses were improperly shifted over
1 lot)
ii. two issues: tacking (can the former residents time “tack on” to the time which the current owners spent at
the house—1 year) and the question of whether or not being there only the summers counts as continuous
use?
1. Court ruled that the property was used continuously and that tacking was allowed
a. Occupancy during the summer months for more than a 10 year period is considered
continuous because there had been improvements to the land and it seemed a
guarantee that they homeowners would always come back each summer
iii. tacking is allowable when looking for adverse possession where there is privity between successive
occupants
1. privity is established by the deed (when the first owner transfers a deed to the second owner,
they have privity) in general privity means the relationship between two parties that have a
legal interest in something—can be piece of property or other things
2. The court expands the definition of privity by claiming that it can be established any time
there is a reasonable connection between successive occupants (much broader than regular
definition of privity)
a. For policy reasons
i. If someone is in good faith on the land for a long time then you shouldn’t
disrupt it (because the Kuntos may sue their neighbors and so on, etc.)
ii. cost savings: tremendously expensive to require owners to do a survey of the
land prior to purchase
iv. suppose that instead of building a home, the Kuntos used the lot each summer for camping, at the end of
the summer, the Kunots packed their camp and left no trace of their use.
1. This would not satisfy continuity because they would not have made any improvements
(there was no way of even knowing that the campers had been there)
j. Disability Statute
i. an action to recover the title to or possession of real property shall be brought within 21 years after the
cause thereof accrued, but if a person entitled to bring such action, at the time the cause of actions accrues,
is within the age of minority, of unsound mind, or imprisoned, such person [or anyone claiming from by or
under such person], after the expiration of 21 years from the time the cause of action accrues, may bring
such action within 10 years after such disability is removed
ii. if owner was imprisoned on the day the AP entered, the AP is barred from legally taking the land
1. BUT if the guy was imprisoned two years after the AP entered, the AP can claim title because
he’s not covered by imprisonment
iii. you also cannot tack on disabilities
1. if a 15 year old owns and then goes to prison, his disability ends at 28 years old (10 years
after the disability ends)
a. BUT it can also be when he’s 46 years old because that’s 21 years after the cause of
action was started while he was a minor
iv. so its either 10 years after the disability is removed or 21 years from when the thing occurred—whichever
one is longer is what the person with the disability gets
1. The owner, representative of owner, or guardian of owner can sue
k. Review of AP
i. Elements:
1. Actual Entry giving Exclusive Possession
a. Consistent with ordinary use of similar property (Van Valkenburgh Dissent)
2. Open and notorious
a. Caves (Marengo)
b. Minor encroachments (Manillo)
3. Adverse/Hostile/Under Claim of Right/Title
a. Without owner’s permission
b. Consider required intent (Van Valkenburgh, Manillo)
4. Continuous
a. Seasonal use permitted (Howard)
b. Tacking requires privity, i.e. reasonable connection between possessors (Howard)
5. Boundary Disputes –look to see if any of these doctrines are applicable
a. Doctrine of Agreed Boundaries
b. Doctrine of Acquiescence
c. Doctrine of Estoppel
6. Color of Title
a. Claim pursuant to faulty written instrument
b. Constructive AP—you can get the part of the property which you constructively
owned under AP
c. Not a requirement of AP but gives you a benefit
7. Disabilities
a. Must exist when cause of action accrues
b. Extended S/L
VI. Acquisition by gift
a. Elements
i. Delivery
1. physical delivery
2. constructive delivery
a. giving someone something that opens or turns the object on (keys to a car)
3. symbolic delivery
a. when the item is to large to actually hand over (i.e. deed to land)
ii. intent
iii. acceptance
b. Newman v. Bost
i. Newman was promised by the decedent all the furniture in the house, handed her keys and told her it was
hers when he died.
ii. The bureau contained his life insurance policy, however, and she claimed to be entitled to the insurance
policy because it was in the bureau
iii. Court says that the first two items are gifts “causa mortis” (given in comptemplation of impending death
and if u live it is automatically revoked) and the second two is “inter vivos” (gifts in life)
iv. Symbolic delivery of a gift is not effective. Constructive delivery is allowed only when it is
impractical to deliver actual possession
1. where manual delivery is possible, you have to do it
a. life insurance policy had to be delivered
c. Gruen v. Gruen
i. Older Gruen wanted to give son a famous painting upon his death, but for tax reasons simply said “happy
birthday, my gift to you is this painting” which made no mention of the give being given inter vivos
1. but the first letter was an inter vivos gift but the dad asked the son to destroy the first letter
which he did
ii. a party may give a future interest in chattels as a gift while reserving a life estate in himself
iii. when dad died, 4th wife (the ex-maid) wanted the $2.5 mil painting for herself
VII. Estates in Land
a. Estate defined
i. An estate is an interest in land which:
1. either is or may become possessory and
2. is measured by some period of time (even if indefinitely)
ii. present interests (or possessory) gives its holder the right to possess land right now
iii. future interest gives its holder the right to possess land in the future
1. not that the interest itself is in the future, but it’s the right to actually have it in the future
iv. allows the owner to control how the land is going to be used in the future and what rights the current
possessor has
b. Must know for each estate:
i. The durations of the estate
ii. Creation (i.e. what words do you need in order to create the estate)
iii. Transferability
iv. What future interests follow the estate?

c. Order of intestate descent
i. If you die intestate (without a will), your property will pass through the state’s intestate statute to:
1. spouse—states vary on what % goes to the spouse, and in most cases it depends on whether
or not there are children
2. issue (lineal descendants)
a. i.e. my kids or if my children died, my grandchildren
i. (if mom dies me Marianne and Bob get her part)
3. ancestors (parents)
a. if I die, my stuff goes to mom
4. collateral relatives
a. if me mom and dad die, it goes to Marianne and Bob
5. escheat to the state
d. Fee Simple Absolute Defined
i. Fee
1. interest in land
ii. simple
1. ownership of unlimited duration
iii. absolute
1. no future interest that can cut off the ownership
iv. there are generally always limitations on your right to control your property and almost no one has fee
simple absolute
v. fee simple = fee simple absolute
vi. duration is infinite, no known reason at the time the estate is created why it should end
1. transfer options:
a. alienable (sellable)
b. devisable (passed through the will)
c. descendible (passed through intestacy if die w/o will)
2. future interest: none
a. no one has an interest after you (you’ve earned it absolutely)
e. Life estate
i. Duration: a life estate is an interest in land that lasts for the life of the holder or the life of a third party
(pur autre vie).
ii. Creation:
1. “to A for life”
2. to “A for the life of B”
a. A has pur autre vie and B has nothing—when B dies, the property goes back to the
original grantor
b. Can be passed through a will or intestate statute
iii. transferable: for the duration of measuring life
1. alienable
2. devisable
3. descendible
iv. Every life estate is followed by a future interest because when the life estate dies, the property has to go
somewhere
1. reversion: future interest in grantor
a. if “O to A for life” then A has a life estate and O has a reversion
2. remainder: future interest in transferee
a. if “O to A for life, then to B,” A has a life estate, B has a remainder in fee simple—O
has nothing
f. White v. Brown
i. Lide left the house to Evelyn White and told her she could not sell it, left her personal property to Sandra
White Perry
ii. Lide family tree
iii. “I wish Evelyn White to have my house to live in and not to be sold”
1. is this a life estate or fee simple?
iv. Unless a contrary intention appears by the terms of the will and its context, a will conveys a testator’s
entire interest
1. the “not to be sold” clause was thus tossed, and she was given full rights
g. Law of Waste
i. It is applied whenever two or more persons have the right to possess property at the same time (ex: join
tenants), or consecutively (ex: life estate followed by future interest holder)
ii. It is applied because it prevents one owner from using the property in a way that unreasonably interferes
with the expectations of other owners or future owners
iii. Types of waste
1. affirmative waste
a. removing all trees from property
b. storing nuclear waste on property
2. permissive waste
a. failing to pay taxes
b. failing to make reasonable repairs
iv. the first owner will probably depreciate the value of the land, goes back to Demsets idea in the tragedy of
the commons
1. whenever there is land owned by more than one person they are going to hurt all of the foxes
or use all of the oil
v. originally really strict—had an obligation to give the land to the future owner of the land exactly as you
got it
vi. life tenants are now allowed to make changes to the land provided that the value of the future interest is not
diminished by his actions
VIII. Defeasible Estates
a. A defeasible estate is a present interest in land that may end upon the happening of an event in the future
i. “to A so long as the premises are used as an ice cream parlor”
1. defeasible fee simple
a. the original grantor has the future interest
i. there are two options for future interest, it can be the grantor or the third
party
ii. “to A for life, so long as the premises are used as an ice cream parlor”
1. this is a defeasible life estate
iii. “to A for 10 years, so long as the premises are used as an ice cream parlor”
1. defeasible leasehold
b. Defeasible fees and future interest (FI)
i. A defeasible fee is always followed by a future interest
1. FI in grantor: “to A so long as the premises are used as an ice cream parlor”
2. FI in Grantee: “to A so long as the premises are used as an ice cream parlor, then to B”
a. We specify what happens if A breaches the condition
c. Questions asked:
i. Who is the holder?
ii. What is the future interest in these estates? This can be the original owner or a 3rd party
d. Any estate can be made defeasible, but the most common is a defeasible fee simple
i. Fee simple determinable (FSD)
ii. Fee simple subject to a condition subsequent (FSSCS)
iii. Fee simple subject to executory limitation (FSSEL)
e. Fee simple determinable

i. FSD is a fee simple that will terminate automatically when a stated event occurs
1. Fred gives Greenacre to Lucy “so long as Greenacres is used for residential purposes”
ii. This is upon happening of stated event
1. automatic transfer of interest
2. From Lucy to Fred if it stops being used for residential purposes
a. Goes back to the original grantor
iii. FSD and future interest
1. FSD is always followed by the possibility of reverter to grantor
a. Fred gives Greenacre to Lucy “so long as Greenacre is used for residential purposes”
b. Present estate: Lucy has a Fee simple determinable
c. Future interest: Fred has a possibility of reverter
2. Explicit
a. Fred to Lucy during the time that she uses the property for farming, otherwise to
revert to grantor
3. implied
a. fred to lucy so long as no liquor is served on the property

iv. must use clear durational language, if the state condition is violated, the forfeiture is automatic and if the
condition is violated the future interest is the possibility of reverter in the grantor
v. Transferability
1. FSD is alienable, devisable and descendible, but always subject to the condition
a. Fred gives Greenacre to Lucy so long as no liquor is served on the property
i. Lucy has a fee simple determinable
ii. Fred has a possibility of reverter
b. what happens if lucy sells Greenacre to mike?
i. If mike opened a bar on Greenacre, the future interest would automatically
invest the property would go to the original owner
1. lucy does not have the right to sell liquor on the property so she does
not have the ability to sell to him for this purpose
f. Fee Simple Subject to Condition Subsequent
i. FSSCS is a fee simple that is contingent upon meeting a condition; upon violation of condition there is no
automatic transfer of interest. Grantor must affirmatively exercise right to repossess.
1. estate can go on forever because he may come onto the land, but this poses the threat of AP
by the owners
ii. You have to force the person off!
1. Fred to Lucy on the condition that the property be used for residential purposes; in the event
it is not so used, Fred shall have a right of entry.
iii. FSSCS and Future Interest
1. FSSCS is always followed by a Right of Entry in the Grantor
2. Fred to Lucy on the condition that the property be used for residential purposes; in the event
it is not so used, Fred shall have a right of entry.
a. Future Interest: Fred (Grantor) has a right of entry
b. Present Interest: Lucy has a fee simple subject to condition subsequent
3. Right of Entry can be explicit or implicit in grant.
iv. Transferability
1. like FSD, FSSCS is alienable, devisable and descendible, but always subject to the condition
g. Fee simple subject to executory limitation
i. FSSEL is a fee simple that terminates automatically upon the violation of a condition (like FSD) and
passes to a third party (unlike FSD and FSSCS)
1. to Lucy, but if Blackacre is ever used as factor, then to Mike
ii. FSSEL and future interest
1. FSSEL is always followed by an executory interest in a transferee named in the grant
2. to Lucy, but if Blackacre is ever used as a factory, then to Mike

a. Present interest: Lucy has a fee simple subject to executory limitation
b. Future interest: Mike has an executory interest (there is no more condition once it
gets to Mike)
h. identifying defeasible estates
i. step 1: identify the future interest holder
1. if a third party, you have a FSSEL
2. if it is the grantor, you have a FSD or a FSSCS
ii. step 2: if the future interest holder is the grantor look for magic words
i. examples:
IX. Universe of Future Interest
a. In grantor
i. Reversion
ii. Possibility of reverter
iii. Right of entry
b. In third party
i. Remainder
1. vested remainder
a. indefeasible vested remainder
b. vested remainder subject to open or partial divestment
c. vested remainder subject to total divestment
2. contingent remainder
ii. executory interest
1. shifting executory interest
2. springing executory interest
c. Reversion
i. Arises whenever O transfers less than his entire interest
ii. Follows a life estate or term of years
1. “O to A for life”
a. Present estate: A has a life estate
b. Future Interest: O has a reversion
2. O to A for life, then to B and her heirs if B survives A
a. Present estate: A has a life estate
b. Future estate: B has a remainder in fee simple, O has a reversion
d. Possibility of reverter
i. Possibility of reverter is the future interest in the grantor following a fee simple determinable
ii. “O to town library so long as used for library purposes”
1. present estate: Town library has a fee simple determinable
2. future interest: O has a possibility of reverter
e. Right of reentry
i. Right of reentry is the future interest in the grantor following a fee simple subject to condition subsequent
1. “O to town library but if it ceases to use the land for library purposes, O has the right to
reenter and retake the premises.”
a. Present estate: town library has FSSCS
b. Future interest: O has a right of reentry
X. Future interests in the grantor
a. Remainder
i. 3 requirements
1. held by a grantee
2. capable of becoming immediately possessory (i.e. no condition precedent to take the land)—
no space between life estate ending and the remainderman’s possession
3. upon natural termination of prior estate (i.e. cannot follow a defeasible fee)
a. death of a life estate tenant or an expiration of a leasehold
b. a remainder can never follow a fee simple!!!
i. Because defeasible fee’s terminate unnaturally
b. Estates in remainder
i. Remainder in fee simple
1. “O to A for life, then to b”
ii. Remainder in life estate
1. “O to A for life, then to B for life”
iii. Remainder in FSD
1. “O to A for life, then to B and his heirs as long as the white house stands”
a. A has life estate
b. B has remainder in FSD “as long as”
c. O has possibility of reverter
iv. O to A for life, then to B
1. A has a life estate
2. B has a remainder
a. He has a remainder because he met all three requirements
v. O to A for life, then one year later, to B
2. B has an executory interest
a. Because it is not capable of possession immediately (violates 2nd requirement)
3. O has a reversion for that one year in between
vi. O conveys Blackacre “to A for life, then to B if B gives A a proper funeral”
2. B has an executory interest
a. Can’t be remainder because it will take some amount of time for B to fulfill the
condition
c. Vested remainder
i. A remainder that (a) is in an ascertained person and (b) is not subject to any condition precedent
ii. Three types
1. indefeasibly vested remainder
a. remainder that is certain to become possessory in a particular person
i. “to A for life, then to B and his heirs”
1. present estate: A has a life estate

2. future estate: B has an (indefeasibly) vested remainder in fee simple
2. vested remainder subject to open (or partial divestment)
a. remainder in a class of persons that is certain to become possessory in at least one
class member, but that may be diluted by the inclusion of additional class members
b. O conveys “to A for life, then to A’s children” A has 1 child, C.
i. Future interest: C has a vested remainder subject to open in fee simple
1. vested because C is an ascertained person and there is no condition
precedent to C taking
2. subject to open because A might have more children
c. what if A had no children at the time of the grant?
i. That would be a contingent remainder because it would be contingent on
them being born
ii. When she does give birth, it would become a vested remainder subject to
open
iii. Rules for class gifts
1. Vesting: class gift vests when one member of the class can be identified
a. example: gift to “A’s children” vests as soon as A has a child
2. closing: class closes pursuant to the
a. fertile octogenarian rule
i. a class of children doesn’t close until the parents’ die
b. rule of convenience
i. a class will close when the remainder becomes possessory for any one
member
ii. its when the child can actually take possession of the estate
c. O to A for life, then to B’s children
i. B is alive and has one child, C
ii. A has life estate
iii. B’s children have a vested remainder subject to open
iv. Under first rule, class stay’s open until B dies because more children can be
added
v. If A dies before B, the class is closed and C can take the estate
d. if B is alive and has no children
i. it would be contingent remainder because it is contingent upon B having
children
ii. once B has a kid, it’s a vested remainder subject to open
iii. if B never has a kid, it reverts back to O

iv. Vested remainder subject to divestment (or executory limitation or defeasance)
a. Subject to a condition which may divest it in the future
b. Remainder that will become possessory, unless some event occurs which divests the
remainderman of its interest
c. To A for life, then to B and her heirs, but if B does not graduate law school, then to C
i. A has a life estate
ii. B has a vested remainder subject to divestment in fee simple
1. B gets property until he dies because he has opportunity to complete
law school until his death, and when he completes it he’s free and
clear (if he doesn’t C gets it at his death)
iii. C has an executory interest
d. Because the condition comes after “then to B and her heirs,” it is vested
d. Contingent remainder
i. A remainder that is either (a) in an unascertained person or (b) subject to a condition precedent
ii. Remainder in unascertained person
1. to A for life, then to B’s children. B has no children
a. A has a life estate
b. B’s children have a contingent remainder (because they are unborn and therefore
cannot be ascertained)
c. O has a reversion (in case B dies without ever giving birth)
2. to A for life, then to B’s heirs
b. B has contingent remainder because you do not know who the heirs are yet if B is
dead, if B is dead, they’d have a vested remainder
3. O to A for life, then to the person who is then president of the US
b. President has a contingent remainder
iii. Remainder subject to a condition precedent
1. is not guaranteed to naturally occur, and must happen before taking of the estate
2. condition precedent=condition that precedes the remainder or is woven into the grant of the
remainder
3. To A for life, then, if B graduates from college, to B
b. B has a contingent remainder (subject to the condition precedent that B graduate from
college)
c. O has a reversion (in case B does not satisfy the condition precedent prior to the
termination of the present estate)
d. What if the life estate ends and B has not yet graduated college? It will revert back to
O (O has a reversion)
i. He must fulfill the condition before he takes possession of the land
ii. In some states, O gets the reversion, but then B has an executory interest
until he graduates college
e. Classifying remainders
i. If a condition follows the granting language, the remainder is a vested remainder subject to total
divestment
1. to A for life, then to B, but if B should fail to graduate from law school, then to C
b. B has a vested remainder subject to total divestment (condition follows grant, B take
possession immediately upon A’s death)
c. C has an executory interest (not a remainder because C’s FI will divest B’s
possessory estate)
d. O has nothing
ii. If a condition precedes or is part of the granting language, the remainder is a contingent remainder
1. to A for life, then to B if he graduates from law school, otherwise to C
b. B has a contingent remainder (condition is part of grant, B cannot take possession on
A’s death unless the condition is satisfied)
c. C has an alternative contingent remainder
d. O has a reversion
iii. Hint for classifying remainders following life estates:
1. LEcontingent remaindercontingent remainderreversion
2. LEvested remainder subject divestmentexecutory interestno reversion
iv. Default rule: vested remainders are preferred by the courts because the courts like to know where things
are going
f. Executory interest
i. An executory interest is a FI (a) in a third party (b) that is not a remainder and (c) that divests another
interest
ii. Follows a FSSEL or a vested remainder subject to divestment
iii. Shifting: divests a third party
1. idea is that it shifts from one transferee to another transferee
2. to A and her heirs, but if A does not graduate from law school, then to B and his heirs
a. Present estate: FSSEL

b. Future interest: B has a shifting executory interest (if A does not graduate, B’s
executory interest will divest A of her FSSEL)
iv. Springing: divests the original grantor
1. O conveys “to A when she marries”
a. O has a FSSEL
b. A has a springing executory interest (when A marries her future interest will divest O
of his FSSEL)
g. Trusts: the overview
i. Estate system allows grantors to control use and ownership for a few generations into the future, giving
owners different ways to manage estates, but there are some disadvantages
1. knowing exactly who will own it in the future can be difficult
a. makes it hard to sell the property because you don’t know who has interest in the
property
b. its kind of rigid in that it sets up the day the grantor gives the grant and then the
grantor can’t really change it
i. grantor can’t forsee what will happen in the future and this locked them in
ii. trusts solve a lot of these problems
1. the beneficial ownership is separated from the legal ownership
2. Trustee has legal title to Blackacre, and the beneficiary gets whatever income Blackacre
produces
a. Trustee is told how to divide everything and who gets what, he’s also allowed to
change things as he sees fit as conditions change in the future—trustee can sell it if
its for the good of the beneficiary
b. Problem of land being inalienable because you don’t know who the owners are going
to be is resolved by trust
3. more flexible because you can divide things up by percentages (25% to A and 43% to B, if
my son loses his job he can have 10% more, etc.)
XI. The Rule of Perpetuities
a. The rule: No interest is good unless it must vest [and close], if at all, no later than 21 years [and 9 months] after
the death of some life in being at the creation of the interest
i. Vest and close= relates to class gifts and makes sure that the class is identified and takes control within the
time limit of the perpetuities period
ii. We must know that it will, eventually become possessory
iii. Anything that doesn’t happen in this term is void
b. Purpose is to prevent dead hand control: its inefficient and doesn’t allow you to derive the full value from the
property you are currently in possession of (can’t sell, can’t disperse as you please)
c. 4 step approach to RAP problems:
i. Classify the future interest
ii. Identify the condition precedent to vesting
1. figure out what must happen in order for it to vest
iii. Find a validating life
iv. Determine whether the interest must vest or fail to vest within 21 years and 9 months of the validating life
1. if an interest is not certain to vest or fail, strike it from the grant
d. Step 1: Classifying future interest
i. Determine which future interest have been created by the conveyance
1. the RAP only applies to:
a. contingent remainders
b. executory interests
c. vested remainder subject to open
d. options and right of first refusal
2. the RAP doesn’t apply to:
a. FI in grantor (reversion, right of re-entry, possibility of revertor)
b. Indefeasibly vested remainders
c. Vested remainders subject to divestment
ii. To A for life, then to A’s children
1. A is alive and has no children
a. A’s unborn children have a contingent remainder (subject to RAP)
e. Step 2: Identify the conditions precedent to the vesting of the suspect future interest
i. “To A for life, then to A’s children”
1. A must die (so the life estate can terminate) and
2. A must have children (so the FI holder is ascertained)
f. Step 3: Validating Life
i. Alive and relevant: look for a person alive at the date of the conveyance and ask whether the person’s life
or death is relevant to whether the condition will occur
ii. A is a validating life because she is alive on the date of the conveyance and her death is directly related to
whether the condition will be satisfied (i.e. on A’s death we will immediately know whether A has any
children)
g. Step 4: Will we know with certainty w/I 21 years of the death of our validating life, if the interest will vest?
i. Upon A’s death we will know for certain whether A had any children and, therefore, whether the condition
precedent was satisfied
ii. Thus, the contingent remainder does not violate the RAP
h. Vesting of Future Interest
i. When does a future interest vest?
1. Contingent remainders and executory interests vest when the condition precedent is satisfied.
2. Class gifts in vested remainder subject to open vest when
a. The class closes and
i. Fertile octogenarian rule
ii. Rule of convenience
b. All conditions are precedent for each class member’s interest is satisfied
i. All or nothing rule: if condition is not satisfied for one class member, gift is
void for the entire class
i. common perpetuities scenarios
i. A gift to an open class conditioned on the members surviving to an age beyond 21 violates the RAP
1. To A for life, then to such of A’s children as live to attain the age of 30. A is alive and
has two children, B and C. B is 35 and C is 40.
a. Classify the Interest: A has a life estate, B and C have a vested remainder subject to
open
b. Identify the Condition: Each of A’s children must live to 30.
c. Find a validating life: A, B or C (are alive and relevant)
d. Certain to vest? No. Assume A has another child, D, and then A, B and C are
killed. Gift to A’s children is not certain to vest in each member of the class because
D, an after born child of A, could reach 30 more than 21 years after the death of A,
B and C. Under the “All or Nothing” rule the gift is void for entire class.
ii. A shifting executory interest with no time limit violates the RAP
1. to A and his heirs so long as the land is used for school purposes, then to B and his heirs
a. classify interests
i. A has FSSEL
ii. B has a shifting executory interest
b. Identify condition: land stopped being used for school
c. Validating life
i. B or A
d. Certain to vest? No way do you know if they’ll get it within 21 years of the death of
B or A that it will stop being used as a school
e. A now has a fee simple determinable: “To A so long as the land is used for school
purposes”
i. O has a possibility of reverter
iii. “to A, but if the land ceases to be used for school purposes, to B and his heirs.”
1. B has a shifting executory interest (because it isn’t natural so its not a remainder)
2. must strike out “but if…to B” thus you are only left with “to A” and A gets a fee simple
absolute
iv. how do you make it so that O can give it to A until he stops using it as a school?
1. give it to B as a fee simple who then gives it to A as a fee simple determinable (B has a
possibility of reverter)
-or-
2. give it to A as a fee simple determinable, and assign B the possibility of reverter
j. O, a teacher of property law, declares that she holds in trust $1000 “for all members of my present property class
who are admitted to the bar.” Is the gift good?
i. Classify the estate
1. O has FSSEL (she creates it in herself)
2. class members have springing executory interest because if the satisfy the condition, they are
taking the property away from O, the original grantor
ii. condition precedent:
1. closed class all have to be admitted to the bar
iii. validating life: teacher and all class members
iv. will the gift vest within the perpetuities period: when you die, we will know whether or not you were
admitted to the bar
k. what if O had put $1000 in trust “for the first child of A who is admitted to the bar”
i. O has FSSEL
ii. Kids have springing executory limitation
iii. Validating life are all alive kids, O or A
l. why are we learning this?
i. Bar exam and trusts and estates class
ii. It’s the law in New York
m. Symphony Space v. Pergola Properties
i. Broadwest had both commercial and theater building in manhattan, wanted to sell it to the not for profit
symphony in order to get a break on taxes (the symphony then leased the rest of the building other than the
theater back to Broadwest)—Broadwest sold Symphony to them for less than $12,000
ii. Broadwest paid $10 in consideration to keep open the option to re-purchase entire building, so long as
closing would occur in the given years specified
1. Broadwest wants it back and Symphony claims option to repurchase is void under RAP
iii. There is no exception to the rule against perpetuities for commercial option agreements
n. perpetuities reform
i. several waves of reform over the past couple of years

ii. Cy Pres
1. reform the grant—court has equitable power to reduce age contingencies or indicate who the
beneficiaries are when the grant has unascertainable persons
2. used in a couple of states
3. this has largely been rejected
iii. Wait and See
1. don’t look at it immediately and see if it violated it when it was made, but see if it will be
valid at any point
2. Pergola wanted a wait and see because then they would have been fine
3. many states have adopted this because the “what might happen” leads to absurd results like
what if my 80 year old grandma has a child—things that are more likely than not to happen
iv. perpetual trusts
1. way to get around RAP
2. put your property in trust forever, as long as trustee has power to sell it, it won’t violate the
RAP
3. can direct who owns it and where the income goes forever thus getting around RAP
XII. Concurrent Estates
a. Tenancy in common—“Blackacre to A and B”
i. Must haves:
1. Possession: each has an equal right to possess the whole
a. we both own parts of the house, but we have equal right to use the whole thing
2. Ownership: need not be equal—can be 60/40, 10/90, etc.
a. if you rent out shared house, you would split the proceeds in relation to percentage of
ownership interests
3. Transferable: alienable, devisable, descendible
a. Can pass down your part in a will, can sell it, or can pass through intestacy statute—
but can never transfer more than what you own
4. Creditors: reachable by creditors
a. this is because it is transferable
ii. modern presumption is that property will be owned as tenancy in common if you are not told
b. Joint tenancy
i. If you want it to be a joint tenancy, you have to have expressed content to create it, like saying “to A and B
as joint tenants” or in some states specify clearer “to A and B as joint tenants with right of survivorship”
ii. Right of survivorship
1. when A and B are joint tenants, if A dies his interest goes to B
iii. Requires 4 unities

1. time—each must vest at the same time
2. title—both have to acquire land from same person
3. interest—must be equal (can’t be 40/60)
4. possession—right to possess the whole
iv. transferable: alienable but not devisable or descendible
v. creditors: reachable during life of tenant
1. can be reached while you’re alive, but if they wait until you die they can no longer touch it
because you don’t own it anymore
c. Tenancy by the entireties
i. Exists in about half the estates
ii. It cannot be conveyed to a third party
1. it has a 5th element added on to joint tenancy which is marriage
iii. Marital form: way that a husband and wife can own property together
d. Community property (not really a concurrent estate, but want to contrast it to them)
i. Exists only in 8 states and only between husband and wife
1. not a concurrent estate
e. intent plays a role when determining what estate is warranted!!
i. Doesn’t have to be a joint tenancy just because you have 4 unities, can still be tenants in common
f. Blackacre to A, B and C as joint tenants
1. A conveys interest to D
2. B dies intestate, leaving H as his heir
ii. D and C would have state of title
1. it’s a joint tenancy—but if you’re in a state where it must say “to joint tenants with right of
survivorship” it wouldn’t be and it would therefore be a tenancy in common, but here we’re
assuming it’s a joint tenancy
iii. D is a tenant in common when A conveys interest to him
1. B and C are joint tenants still, however
iv. C will own 2/3s (gets whatever B owned), D owns 1/3
v. What if this had been a tenancy in common—NOT a joint tenancy
1. D, B, and C, each own 1/3s, and when B dies, H, D and C are tenants in common
g. T devises Blackacre “to A and B as joint tenants with rights of survivorship”
i. This is clear joint tenancy
ii. If the owner creates a life estate with contingent remainder, you cannot get rid of the remainder, but if
there is right of survivorship, either party can sell their right of ownership
1. so if you want them to have power to sell, give them joint tenancy, if you want them to be
stuck with it for a while, give them the life estate with remainder
h. Riddle v. Harmon
i. Mrs. Riddle did not want her husband to get their land automatically when she died, so she tried to sever
the joint tenancy without him
ii. if she conveyed to herself it would destroy the four unities
iii. she didn’t use a “strawman” which was an understood 3rd party who you could convey your portion to and
then they immediately convey it back to you—so you don’t transfer it to yourself
1. the court ruled that you no longer have to use strawman because its outdated and redundant—
you can create joint tenancy in yourself
iv. a joint tenant can unilaterally sever a joint tenancy without the sue of an intermediating third party
by conveying his or her property interest to himself or herself
i. should we allow joint tenancies to be severed in secret? (without giving notice or consent from the other joint
tenant)
i. conflicting interests
1. people should be able to do whatever they want, but it takes away the rights of one of the
parties
2. also is ripe for fraud
j. If both A & B die at the same time under a joint tenancy?
i. If it is not possible to determine who dies first the estate is split in half
k. Delfino v. Vealencis
i. Defendant has a trash removal building on the land which both plaintiff and defendant own as tenants in
common
ii. The plaintiff wanted to build on the land to create commercial property to rent out, but defendant wants to
prevent this because she has a business on the property and lives there—plaintiffs went to court to get a
partition by sale
iii. A mortgage does not sever a joint tenancy, and the surviving joint tenant takes the interest of a
deceased joint tenant without being encumbered by the mortgage
iv. supreme court rules that partition by sale is an extreme measure that goes against the idea that you are
legally allowed to control your own property
1. partition by sale is not the best option for the parties but a partition by kind would work
because it is a rectangular property easily divisible especially since there are only 2 of them
and they’ll each get a fair size
a. the town allowed her to stay for years and gave her permits for her garbage business
(which her family had operated for years)—unfair to make her give that up
v. two factors court looked at to see if you can divide land by kind
1. whether it is practical
2. whether it serves the best interests of the parties
a. if these two prongs aren’t met, partition by sale may be the only way to go
vi. court gave them a partition in kind but made defendant pay plaintiff for the loss of profit because of the
garbage business
1. they then later cut her off from the main road and her business went under because they were
mean to him
l. Swartzbaugh v. Sampson
i. Mrs. Swartzbaugh (plaintiff) and her husband entered into a joint tenancy but then the husband leased part
of the land for a boxing pavilion
1. she never signed the lease and wants to cancel it
ii. court says that the lease is valid and binding and he had just as much right to make a lease as she did
1. there were some other remedies however:
a. action for partition of the land
i. but that wouldn’t really help her much because he would still be able to run
boxing matches on his portion of the land
ii. if the boxing pavilion took up most of the land it would be impractical to
split it up
b. action for partition by sale
i. all you would get is half the present value of the leasehold interest
c. both of the above are not such great options
2. provoke an ouster
a. she can do something that makes his life so miserable that he kicks her out—she
would then get one half of the fair rental value
b. this is the best option for her
3. accounting
a. if the leasee is paying $10/month, she should get $5 from her husband
b. you want to get an accounting if the lease is higher than the fair market value—
otherwise u’d provoke an ouster
iii. a joint tenant, during the existence of a joint estate, has the right to convey or mortgage his or her
interest in the property, even if the other joint tenant objects.
m. Contribution
i. Real estate taxes
ii. Necessary repairs
1. basically you see the problem you fix it, there may be no compensation from co-tenants
2. tenant can demand an accounting
iii. improvements
1. if value of property increases because you build a pool on the property, you cannot get paid
by the co-tennants unless they volunteer that, but you get the extra profit upon sale
2. so you get all profits or loss
n. tenancy by the entireties
i. requires 4 unities + marriage
ii. unseverable right of survivorship
1. neither party acting alone can get rid of survivorship acting without the other party
iii. at common law, reachable by creditors of husband
1. modern law varies
a. some states have common law tenancy
b. some have community property system
iv. at common law, if a husband wanted to sell his interest would he be allowed?
1. you can sell it for the duration of your life, but you can’t destroy the wife’s right of
survivorship
2. if husband dies first, she gets it back from the third party
3. if she dies first, husband would get it back and now he owns it entirely or he owns it pursuant
to the rights of the third party
4. idea was give her the right so she’ll have a place to live after he dies
v. how can you destroy the right of survivorship?
1. divorce is the only way because then the element of marriage is gone and the right of
survivorship terminates
2. it then turns into a tenancy in common
vi. at common law, can creditors reach the tenancy by the entireties
1. creditors can reach the interest and have it for the lifetime of the husband, as soon as he dies
the creditors have to give it back to the wife
vii. Can W enforce a contract to care for her sick H in exchange for a devise of certain property in his will?
1. Court held that this contract was void against public policy because husbands and wives
shouldn’t make these contracts, undermines the meaning of marriage, and husband would
have same duty to W
o. Sawado v. Endo
i. The Endos’ conveyed their property to their sons the same day that H got into an auto accident that injured
the Sawado’s
ii. An estate by the entirety is not subject to the claims of creditors of only one of the spouses because
neither spouse acting alone can transfer his or her own interest
iii. Married Women’s Property Act equaled out both spouses rights and so neither one can attach the property
iv. court believes that they are protecting the family unit which is dependant upon keeping property
1. protect the rest of the family from the one debt-ridden spouse
a. joint creditors can still attach, however, so this is not a free ride, we just want to
protect one spouse from the other spouse’s debts
p. Division of Property upon divorce
i. Old rule: Common law: property belongs to spouse with title (alimony system)
ii. modern common law: “equitable distribution”
1. they each get a fair share of what was earned during the marriage dependant upon whether
either side was at fault
2. used rules of equity to figure out fair distribution of property (how did each contribute to the
marriage?)
a. does the wife have earning capacity or did she stop working to take care of the kids?
3. different states define marital property differently
a. courts undertaking equitable distribution may look at anything owned by spouse to be
considered “equitable property subject to division”
b. other states will only look at property that was acquired during the marriage but not
before
c. other states only look at things earned during marriage (inheritances and gifts would
not be touchable by the other spouse)
4. the current trend is to move towards equal distribution so effectively they are moving closer
to the community property (a 50/50 divide of the assets)
5. alimony isn’t supposed to go on forever anymore, but its meant for the short term
iii. Community property
1. not tenancy by the entirety, but is community property based on the idea that marriage is an
equal partnership based on the joint effort of both spouses (only held in 8 states out west)
2. result of this view is that each party gets 50% upon divorce
iv. Common law property
1. In re marriage of Graham (Colorado)
a. During the marriage, husband got MBA and BS, increasing his earning power
greatly, while at the same time his wife worked as a flight attendant to support them
while he was in school and only working part time
b. She contributed 70% to the marital income, and kept house, while he studied
c. He just got his first big job so the couple didn’t have time to accumulate any marital
property just yet
d. Court determined that an MBA is not considered “property” because it wasn’t

tangible and cannot be transferred to another or determine its value and cannot be
handed to someone in a will
i. She may be able to get unjust enrichment and it may determine what type of
alimony she’s going to get
2. not all courts agree on this question
a. Mahoney v. Mahoney claimed that if you spent $20,000 on your spouses education,
you’re going to get that $20,000 back but nothing else (New Jersey)
i. reimbursement alimony—compensation for amounts you contributed
towards the spouses future earning capacity
b. O’Brien v. O’Brien rules that increased earning potential for a law degree is equitable
(New York)
i. Minority view (most states either follow Mahoney or Graham)
c. Difference between the two: In Mahoney you get your money back, in O’Brien you
get back increased investment (a share of the profits or future reward)
q. Elkus v. Elkus (NY)
i. Opera singer made it big after she married her husband, husband wanted money from her celebrity
ii. He helped her to gain notoriety by coaching her
iii. Married for 17 years with 2 kids, they started out with almost nothing and then she made it to the lead of
the metropolitan opera
1. he wants not just a division of assets earned by career, but a % of future earning capacity
iv. court rules that the celebrity was a product of their joint efforts and as such is subject to distribution
v. court defines marital property as things of value acquired during marriage are marital property even though
they may fall outside the scope of traditional property concepts (they follow O’Brien—the exact opposite
of Graham)
r. Community Property
i. All property earned by the couple, or bought with the earnings during marriage is held as community
property regardless of the nominal title, unless the couple agree otherwise
ii. Separate property is:
1. property acquired by gift or inheritance
2. property owned by a spouse prior to marriage
iii. H married W, saves $5000 out of his earnings, which he deposits in a savings account in his name only
1. H withdraws the $5000 and buys a lot, taking title in H and W as joint tenants
2. H then dies, devising all his separate and community property to his son, S
3. who owns the lot?
a. When H died he only had rights to dispose of half of his interests
b. When H put the money in a separate account, it was still community property
c. W owns it, because he would need her consent in order to create a joint tenancy
because this is a community property state
i. Assuming she did not give permission, she owns ½ of it, son owns the ½ H
owned before he died (because it was passed to him through the will)
ii. If the wife had consented to change it into a joint tenancy, she would have
gotten the whole thing because she would have had a right of survivorship
(son would get nothing)
iv. Community property characteristics
1. no right to survivorship
2. transfer: neither spouse can transfer without consent of other
3. management: spouse with title or possession of property manages as fiduciary—must
manage in good faith to the betterment of the community
4. creditors of managing spouse can reach whatever property that spouse is entitled to manage
a. with land, in many states it can be conveyed, mortgaged or transferred if you have the
signature of both spouses
i. the fact that one spouse is entitled to manage the house doesn’t mean she can
sell it without her husbands consent
v. Mixing community property
1. inception of right
a. character of property is determined at the time the person signs the contract for the
property
b. if you signed contract for $100k house before marriage and paid $25k then, you are
entitled to the whole house
i. but if the community pays $80k for mortgage payments, they are entitled to
their portion that they paid of that
2. time of vesting
a. spouses are entitled to property when it vests in the spouse
b. pay 25k before and 80k after marriage, because the title vests after you’re married,
the entire 100k house is community property
3. pro rata apportionment
a. you get the percentage of what you put in back (regardless of whether it was before
or after the marriage)
4. during marriage, H takes out $50,000 life insurance policy on his life, paying premiums out
of his earnings
a. the named beneficiary is his son
b. the policy was community property because it was bought with earnings from the
marriage
i. she is entitled to half of the policy, and the son gets the fathers share
c. what if the husband took out the policy before marriage, paid $3000, then after
marriage another $7000
i. depends on the jurisdiction
1. under inception of right she would only get $3500 (1/2 of part that
she paid for i.e. the $7000)
2. under time of vesting she’d get all of it because it vested when he
died (he died married)
3. under pro rata she gets the portion which she spent on it—she would
get 35% (1/2 of 7000 which was amount she spent out of the
$10,000)
s. Migrating couples
i. Acquisition
1. property is characterized by the law of the domicile of the parties at the time of acquisition
2. moving to a new state doesn’t change the dynamics of the property unless the couple
mandates it is so before a problem arises
ii. disposition
1. at death, personal property is disposed of by the law of the domicile of the parties at the time
of death
a. common law=elective share
b. community property=1/2 community property
2. when one spouse dies, the other spouse has an elective share
a. under common law, you have a right to take a percentage of the entire estate that your
spouse leaves
i. if your spouse leaves you $2, you can elect to toss the $2 that was left to you
and get either 1/3 or ½ that’s in the estate
b. community property—the surviving spouse gets one half of the community property
regardless of what provisions the decedent left in his will
c. elective share looks at all of the decedents property, but in community property you
ONLY look at community property—stuff that he had before marriage doesn’t count
as community property
d. if you move to a non-community property state and then your spouse dies, you don’t
get the benefit of the community property anymore
iii. husband and wife marry and live in Ohio, H earns $500k, Ohio has elective share
1. they move to texas that doesn’t have elective share, what does wife get? If he devises all his
property to his daughter
a. In Ohio, she would have gotten ½ or 1/3
b. In Texas she gets nothing because she had no community property because Ohio
common law governed until H’s death
t. Property Rights in Domestic Partners
i. Express and implied contracts are sometimes used to avoid property to domestic partners upon death or
divorce
1. Martin v. Martin
a. Through conduct towards each other, it can be implied that they had a contract to
divide their property if they decided to split up (these were two who were not
married)
2. several states won’t enforce an implied contract of property between unmarried people (idea
behind it is all states abolished common law marriage) NY doesn’t enforce them
ii. ALI principles adopt common law marriage approach. Domestic partners must share a primary residence
and a life together as a couple
1. upon divorce, property divided like marital property
2. upon death, property distributed according to intestate
iii. Goodridge v. Department of Public Health
1. A governmental ban on same-sex marriage bars the guarantee of due process and equal
protection under the Massachusetts Constitution
XIII. Leasehold estate
a. Leasehold estate
i. Is an exclusive right of possession of real property for a specified period of time, which is granted
ii. In exchange for the payment of rent, and is
iii. Subject to the terms and condition of the lease
b. Forms of leasehold estates
i. Term of years
1. duration: known fixed period
2. notice of termination: none required
3. ex: “1 year from the date the lease is signed” you know exactly what calendar date it will start
and end on
a. it can terminate early (if you lease an apartment and stop paying your rent your
landlord can evict you)
ii. Periodic tenancy
1. duration: continues for successive periods of fixed duration (ex. From month to month or
from year to year) unless notice of termination is given
2. notice of termination:
a. year to year=at common law you need 6 months notice (shorter under modern
statutes)
b. less than year to year=equal to period (can’t exceed 6 months)
c. lease must termination on last day of a period
iii. Tenancy at will
1. duration: as long as L and T desire
2. notice of termination: at common law, terminable by either party without notice (modern
statutes require some period of notice)
a. modern statutes do require some form of notice (usually 30 days)
iv. Tenancy at sufferance
1. legal term for situation that arises when a tenant remains in possession after the termination
of the lease
2. L has 2 options
a. Evict the tenant
b. Hold-over tenant for another term
i. In some states a 5 year to year can be held over for a month but some states it
can be a hold over as large as year to year
c. Characterizing leaseholds
i. Intent based approach: garner v. gerrish
1. it is lessee has the option of terminating a lease when he please, a determinable life
tenancy is created
2. not a tenancy at will but a terminable life estate because of the doctrine of siesin
a. lease cannot create a life estate
3. This lease creates a determinable life estate
4. Court is presented with an agreement that calls itself a lease, but it doesn’t fit into any of the
“lease boxes” so the court thinks about what it is closest to
5. a lease creates a landlord/tenant relationship and poses certain rights and duties on the parties
which are not applicable in other types of estates
a. termination of rights
b. assignability
c. mitigation of damages
i. leases are now looked at as contracts
d. statute of frauds
i. certain leases are exempted and other agreements are never exempt
6. contract/conveyance
a. parties may argue whether a particular document creates what, and the main
characteristic of the lease is that you are transferring possession
b. but a license or easement is only the right to use the property
i. with a lease the landlord doesn’t have right to come in and use your
bathroom, but an easement to use a landlords private road doesn’t stop him
from being able to use it as well
c. leases are a combination contract/conveyance which contain property elements
d. Tenancy at Suffereance: Crechale & Polles, Inc. v. Smith
i. Five year lease expiring in Feb of 1969, but the new building they were going to move into was not
finished yet, so landlord disagreed to this month-to-month, but Smith thinks that he was allowed to stay
there until the building was sold, but wouldn’t put it in writing
ii. Once a landlord elects either to treat a hold-over as a trespasser or to hold him to a new term, he
may not change his mind
iii. when you have a hold-over tenant the general rule is that tenancy from year to year is created, but this case
is different because the landlord cashed the first check he got under the month to month lease
iv. it is not a good policy to make people stay in a lease longer then they wanted to because in a holdover
sometimes the punishment far outweighs the results for the landlord
e. Discrimination in Choice of Tenants
i. Federal law prevents it: Civil Rights Act of 1866 § 1982
1. “All citizens of the United States shall have the same right, in every State and Territory, as is
enjoyed by white citizens hereof to inherit, purchase, lease, sell, hold, and convey real and
personal property.”
ii. Fair Housing Act of 1968
1. §3604(a) makes it unlawful to refuse to rent or sell a dwelling to any person because of race,
color, religion, sex, familial status or national origin
2. §3604(c) makes it unlawful to indicate any such discriminatory preference in a notice or
advertisement
3. §3604(f)(1) makes it unlawful to discriminate in the sale or rental of a dwelling because of
handicap.
4. Exemptions
a. §3603(b)(1) A single family dwelling rented by the owner, provided the owner (a)
does not own more than 3 such dwellings, (b) does not use a broker and (c) does not
advertise discriminatory preference;
b. §3603(b)(2) Units within a 4 family home, if the owner actually maintains and
occupies one of the units;
c. §3607 Housing for seniors may discriminate against families with children.
iii. Mrs. Murphy has an apartment to rent in her home
1. she places the following ad: “For Rent: Furnished basement apartment in private white
home.” A black couple applies and is rejected because of race.
2. There violations to CRA, but not to FHA because of § 3603(b)(2) –known as the Mrs.
Murphy exception
a. when you live in the building and there are less then 4 families in it you can
discriminate against people
3. may violate § 3604 because it shows an intent to discriminate in her advertisement
4. you can’t force people to share their home if they don’t want to, but we’re not going to allow
them to advertise that you are discriminatory because that’s bringing your private
discrimination into the public forum and you have no right to publicly offend someone in a
discriminatory manner
iv. What if the ad said “Furnished basement apartment rented only to persons speaking Polish, German, or
Swedish”
1. the same black couple applies and is denied because of race.
2. shes ok with the FHA because since she falls under the exception of § 3603, she doesn’t even
need to look at § 3604 except for (c) because it says so in § 3603 (b)
v. What if she discriminates against German people in renting the apartment in her home?
1. for the purposes of § 1982, race means what it meant when the legislation became law (1866)
100 years ago people talked about the German race, so you are not allowed to discriminate
based on being German
vi. does the exclusion of Black models from real estate ads violate § 3604(c)?
1. courts have found that a pattern of excluding blacks from advertisement (meaning you have
had 100 ads and they’ve all been of white people may violate the FHA), but if you had 2 ads
in 10 years, it probably doesn’t violate the FHA
vii. owner of large apartment complex reserves a number of apartments for white applicants to guard against
“white flight” and maintain integrated housing conditions. Does this violate the FHA?
1. if there is no ad it cannot violate § 3604(c) it violates § 3604 (a) and (b)
2. quota systems are most likely illegal for housing because it is illegal in college admissions
3. the goal of FHA is to allow every race the right or opportunity to obtain that housing NOT to
integrate all housing everywhere
viii. Under the FHA, a landlord may discriminate against homosexuals, but not the mentally ill (considered a
handicap)—if a building doesn’t allow pets, it does have to allow seeing eye dogs
XIV. Landlord Tenant Law

a. For each estate, one of the things asked is “is it transferable” devisable, alienable or descendible—i.e. what can you
do with it?
b. Landlords have right of reversion at the end of the lease and the tenant has right of possession during the term of
the lease (sometimes he has the right to transfer his own possession)
c. New landlord has right to receive all of the duties and the rights subject to the tenants lease
i. But L1 has to allow T to stay in the property just as L had
d. If T sells interest
i. T has the right to possession during the terms of the lease
1. sublet or assign
e. Privity
i. Privity of contract
1. partner to the lease
ii. Privity of estate
1. landlord and tenant both have interest in the land
f. Assignment
i. L and T1 have privity of contract and estate
1. but when the tenant transfers his interest to T2:
a. T1 and T2 are now in privity of contract
b. the landlord and T1 are still in privity of contract,
c. L and T2 are in privity of estate
g. Sublease
i. L and T1 have privity of contract and estate
ii. T1 and T2 have privity of contract and estate
iii. L and T2 have nothing
h. Difference between assignment and sublet
i. In assignment T2 is still connected to landlord, in sublease T2 has zero connection to landlord
ii. Landlord can sue T2 directly in an assignment
iii. In a sublease L cannot sue T2, L would have to sue T1 who would consequently sue T2
i. Ernst v. Conditt
i. Rogers, the original lessee, transferred his interest in go kart track (land) to Conditt
ii. In determining whether an assignment or a sub-leasing has occurred, the court looks to the
intentions of the parties
iii. ISSUE: is this an assignment or a sublease?
1. if it is an assignment, the landlord has the right to sue Conditt, if not, he has no right to sue
Conditt and could only sue Rogers
2. it is not a sublease because people use the wrong wording all the time and it really wasn’t a
sublease
iv. modern rule of intention: why the parties intended an assignment:
1. there is no right of reversion to Rogers
2. they extended the lease past when T1 originally wanted the lease to end
3. just because Rogers assumed liability doesn’t mean that he retained any interest in the
property
4. look to who is collecting rent
v. Ruling: If its less than the entire term it’s a sublease, if its more than the term it is an assignment (or if it’s
the entire term)
j. T1 gives T2 500 of 1000 feet lease for the rest of the term
i. That’s a partial assignment—you are no longer responsible for that period
ii. T’s right to sublet or assign
1. 4 possibilities
a. the lease explicitly permits assignment and subletting or
b. the lease is silent on assignment or subletting or
i. because of efficiency reasons, if it doesn’t say you can’t assign, then you can
assign
c. the lease permits assignment or subletting only with landlord’s consent or
d. the lease prohibits assignment and subletting altogether
iii. default rule
1. if there is a question of interpretation we are going to favor the tenant
2. the law always favors the free transferability of property rights
a. if a lease is silent, the tenant has a right to transfer
3. this is not like a sale, L has a future interest in the property, therefore L should have a say in
what happens to the land
k. Kendal v. Ernest Pestana
i. Pestana demanded increased rent in exchange for consent to assign lease
ii. A lessor may not unreasonably and arbitrarily withhold his or her consent to an assignment
1. lease said tenant may not sublet without the consent of the landlord,
2. the lessor was to look at the lessee and they didn’t have to have a reason to reject a sublessor
3. they are allowed to arbitrarily refuse or accept a proposed assignee

iii. The more modern rule is that the consent cannot be held unreasonably, and you need some reason why
they cannot do it
iv. public policy to make land alienable
1. Its not fair for the landlord to arbitrarily prevent a tenant from subletting
v. Conveyance side:
1. court recognizes that it isn’t an out and out sale of property, for that reason we allow them to
have some measure of control over sublease and assignment BUT the restrictions on tenants
ability must be reasonable…we’re only going to take the conveyance so far
2. leases are not as personal anymore and the court also says that in any event even if we do care
about the landlord, he is sufficiently protected by a reasonable consent (we’re not saying you
have to let in anybody)
3. restatement takes the minority view, we’re going to recognize the interest of consent but we
are going to screen it to make sure that it is reasonable
vi. contracts side:
1. lease obligates the lessor to act under commercially reasonable standards
a. cannot be a matter of personal taste
2. nowadays there is a requirement that landlord mitigate damages—in most states you can’t
just let the property sit vacant
vii. Cali legislature then made a law enforcing this majority rule, and applied it on all leases created after Sep
1983—the point at which it was looking like the law would change
1. this rule didn’t apply to Kendall b/c the lease was created in 1970
l. Rights, Duties and Remedies
i. Under Kendal is the old rules:
1. if the landlord promised to provide heat and doesn’t, it doesn’t mean that the tenant can stop
paying rent
a. if the tenant stops paying rent it doesn’t allow the landlord to kick them out, but only
allow them to sue for damages
ii. Now, if a tenant stops paying rent, the lease does terminate
m. hold-over tenants
i. Common Law Self Help: appropriate when
1. LL is entitled to possession and
2. LL’s entry is peaceful
ii. Modern Trend: Self-Help is never appropriate (Berg v. Wiley)
iii. Berg v. Wiley
1. a landlord may not use self-help to regain possession of his land
2. A Family Affair restaurant owned and operated by Berg was property subleased from LL
(Wiley)
3. restaurant was in violation of health codes and fell into disrepair, landlord gave subleassee
letter that claimed breach of contract
a. there was 2 years left on the lease
4. Wiley’s attorney recommended he retake possession and lock the tenant out
5. first issue was whether she actually was going to close to remodel or if she was abandoning
the premises completely
a. jury found that there was enough evidence that supported that she had planned to
remodel
i. therefore the lock-out cannot be ok-ed on the basis that she had abandoned
the premises
b. You pay triple damages if you are found self-helping
i. Increased administrative costs for landlords
ii. average tenants winds up paying because the landlord has to make up this
cost
iv. Sommer v. Kridel
1. a landlord is under a duty to mitigate damages by making reasonable efforts to re-let an
apartment wrongfully vacated by the tenant
2. Sommer was supposed to get married and entered into a two year lease
a. He told the landlord the engagement was broken and he won’t be taking possession
but will give up his deposit
3. Riverview:
a. Similar to Sommer but this guy had moved in for a year and then moved out before
the 2 years were up
b. if tenant claims the LL did not mitigate damages, the LL must prove that he did
attempt to make reasonable efforts to mitigate
v. tenant who abandons possession
1. if T abandons LL can:
a. terminate the lease
b. relet while holding T liable for deficiency
c. do nothing and collect rent as it becomes due
i. tenants covenant to pay rent continues even if the tenant abandoned because
from the LL’s point of view the tenant still had the right to use the premises
and under common law did not mitigate damages but had to wait each month
until the rent was due and then could sue
1. NY has old common law rule that LL does not have to mitigate
damages
d. contract damages for anticipatory breech
i. accelerated rent provisions—if tenant breaches, the LL can sue for all future
rent under the lease
vi. Landlord’s duties
1. tenants right of possession is due to the covenant of quiet enjoyment
a. LL must claim that he nor anyone acting through him will try to kick you out without
breach
b. It has nothing to do with noise, and is not a requirement that the LL keep random
third parties from evicting you
2. in contrast to the general rule, this was the one promise in the lease that was not independent
but was dependent
a. if LL breeches, T doesn’t have to pay rent
i. At common law breech would be if the LL or someone acting through the LL
evicted the tenant from the premises
3. Reste Realty Corp. v. Cooper
a. LL attempted to get rent for lease
b. Tenant had leased the basement floor of the building, when the original LL was in
charge, every time it flooded, he would get it quickly taken care of, so they stayed
there because they liked him
c. When he died, the new LL refused to ever take care of the flooding, it wrecked a lot
of their stuff and was a serious burden on the T
i. They had to rent other space to hold their meeting because of the flooding
d. “Caveat emptor” doesn’t apply to a LL’s duty to disclose—she had no way of
knowing nor could she know
i. They entered into the second lease on the reliance that the landlord would
consistently repair the defect as he had been
e. She claims it was constructive eviction
i. The LL rendered the property unsuitable by not cleaning up the mess
f. Covenant of quiet enjoyment
i. Explicit or implied in every lease
ii. Modification of Caveat Lessee
iii. L covenants that T will have the right to possess the premises, free from any
legal right of another, and free from interference by the landlord or anyone
acting under the landlord
iv. Landlord has duty to act if:

1. short term leases that are furnished, it had to be habitable and in
good repair
2. latent defects that the LL knows about must be disclosed
3. LL has duty to maintain common areas
4. if LL agrees to undertake any repairs, they have to do it carefully
g. a tenant may vacate premises and terminate the lease if his quiet enjoyment is
interfered with by the landlord
4. CQE breached through:
a. Either
i. affirmative acts of the LL or
ii. LL’s failure to provide something essential that LL had a duty to provide
b. Explicit Duty imposed by lease provision, statute or CL exceptions that substantially
interferes with T’s beneficial enjoyment of the premises
5. Elements of constructive eviction
a. Breach of the covenant of quiet enjoyment and
b. Tenant vacates the premises within a reasonable period of time
6. remedies for breach of CQE
a. Vacate based on constructive eviction
b. Action for declaratory judgment
c. Remain in possession and sue for damages
i. Partial constructive eviction
7. Cannot claim breech of quiet enjoyment for:
a. Noisy neighbors
b. Criminal activity
c. Protestors outside an office
n. Implied warranty of habitability
i. in residential leases, Landlord is required to deliver and maintain, throughout the period of the tenancy,
safe and habitable premises.
ii. theory behind it: “today’s tenant enters into lease agreements, not to obtain arable land, but to obtain safe,
comfortable, sanitary housing”
iii. to determine if there has been a breach to the warranty:
1. courts first look to relevant local or municipal housing code (see if there are blatant
violations)—but not every town has one
2. tenant must show that:
a. he or she notified the landlord “of the deficiency or defect not known to the landlord
and allowed a reasonable time for its correction”
b. the defect existed during the time for which rent was withheld
c. if a reasonable person would look at the dwelling and say that they can’t live the way
the person there is living, that may make it a breach of warranty (i.e. if a reasonable
person can’t live without properly running toilet or lock on the front door)
i. It is what reasonable tenants want, not what these tenants want
1. ex. A pool and a gym are not covered by the warranty
iv. once the landlord corrects the defect, the tenant’s obligation to pay rent becomes due again
1. tenants may deduct the expense of the repair from future rent
2. punitive damages may be available to a tenant when appropriate
v. Remedies for breach of implied warranty of habitability
1. Remain in possession, pay rent and sue for reimbursement and damages
2. Remain in possession and withhold rent
a. But you run the risk, if you cannot prove your case, of eviction and losing your
apartment
3. Terminate lease and sue for reimbursement and damages
4. Repair and deduct
5. ex. You also cannot waive a warranty of habitability
a. i.e. accepting below par standards doesn’t mean that the landlord isn’t liable to the
warranty
b. but if you are paying so little, the damages are going to be small because the
apartment isn’t worth much
vi. Hilder v. St. Peter
1. there is an implied warranty of habitability in every residential lease
2. old trend: caveat lessee—gave the tenant no rights, basically the tenant should protect itself
and landlords are relieved of any and all obligations
a. if there’s a leaky roof or a floor falling in, you have to fix it
b. you bought it, you’re stuck with it
3. this case shows the modern trend—importing contract concepts and consumer protection law
concepts
4. Place is in complete disarray, she fixes everything and with her own money
a. Raw sewage, leaks, clogged toilet, plaster falling onto baby’s crib
b. Landlord claims that she cannot get anything under constructive eviction because she
didn’t actually ever move out
5. court also rules that constructive eviction no longer applies in a case of breach of warranty of
habitability
o. Other duties and remedies
i. Retaliatory eviction
1. most jurisdictions forbid it
2. rebutable presumption of retaliatory purpose if landlord does something to tenant in a
reasonable time after tenants good faith complaint
ii. Waste
a. voluntary=affirmative acts—tenant install shelves or rips out a broken heater
b. permissive=negligence or omission—caused by failure of tenant to act on an
occasion where action is required
2. one party cannot act so as to reasonably interfere with another parties interest in the property
3. modern rule is that tenant is not obligated to make repairs because the landlord is in a much
better position to want or need to make the repairs on his own property
p. Chicago Board of Realtors
i. A rent control ordinance which makes minor re-allocations of rights between landlords and tenants
is reasonably related to a legitimate public goal
ii. Ordinance instituted for warranty will have negative consequences
1. only the wealthy will be benefited and the poor will be worse off as before because the
landlords are forced to raise the rents
XV. The recording system
a. Originally in England there was no recording system, we started it in our own country
i. want people would know who owns what
ii. functions:
1. document preservation
2. you can buy land without worry
b. purpose to facilitate certainty in title and land transfers
c. relativity of title:
i. OA (A not record deed)
ii. OB (B records deed)
1. between A and O, A prevails
2. between A and B, B prevails
iii. absent recording statute, prior in time, prior in effect
d. to see who owns property—if you want to buy from oliver, you:
i. go to clerk’s office, find the title make sure its valid
ii. buy the land, immediately record the deed at the clerk’s office
1. if bob wants to buy the land from oliver there is notice that oliver does not own the property
because you do now
iii. if I DIDN’T file, and bob bought the land from oliver and recorded first, in most states bob would win
because I had every opportunity to record
iv. you can turn around and sue oliver for the damages he’s cost me
e. requirements for recording—what can be recorded?
i. generally any instrument that creates or effects an interest in land can be recorded
1. example: deed, mortgage, lien, will, lease, etc.
ii. requirements for recording include:
1. description of property
2. name of grantor and grantee
3. signature of grantor
4. notarization
5. transfer tax
f. types of recording statutes
i. race statute
1. subsequent purchaser for value prevails if wins the race to record, regardless of whether had
notice of prior transfer
a. example:
i. OA(nr—not recorded)
ii. OB(r—recorded, with knowledge of A’s prior purchase)
iii. A v. B = B prevails because he recorded first
b. Most states don’t have pure race statutes because it promotes illegality and allowing
people to sell to multiple people
ii. notice statute
1. subsequent purchaser for value will prevail if he had no notice of a prior unrecorded
instrument, regardless of which party is first to record
a. example:
i. OA (nr)
ii. OB (no notice, nr)
iii. A v. B = B prevails because he had no notice
iii. race-notice statute
1. subsequent purchaser for value protected if
a. is without notice of prior unrecorded instrument AND
b. wins the race to record
2. example
a. OA (nr)
b. OB(nr, no notice)
i. A(r)
ii. B(r)
iii. A v. B = (B had no notice, but A won the race to record)
3. NY has a race-notice statute
g. Bona Fide Purchaser—guy who’s protected by recording statute
i. Subsequent purchaser who,
ii. in good faith and without prior notice of an earlier transfer,
1. actual notice
a. before the closing, you knew that there was an actual conflict in real property
2. record notice
a. constructive notice—whether or not you have notice we’re going to pretend that you
have notice
b. you would discover the conflicting interest if you bothered to search the records and
if you didn’t then you’re SOL
c. you have conclusively presumed to have notice of any interest that is properly
recorded in the county clerks office
3. inquiry notice
a. you’re obligated to make reasonably inquiries into the property to make sure that
there is no conflicting interest in the property and you are stuck with your bad luck if
you didn’t investigate
iii. spends valuable consideration purchasing an interest in real property
1. substantial amount, not grossly inadequate
2. excludes donee or devisee—these people don’t have to pay consideration
iv. For the notice and race-notice statutes, consider:
1. what instruments are covered by the statute?
2. who is protected by the statute?
3. what must a subsequent purchaser demonstrate in order to prevail?
v. Florida Notice Statute
1. No conveyance, transfer or mortgage of real property, or of any interest therein, nor any lease
for a term of one year or longer, shall be good and effectual in law or equity against creditors
or subsequent purchasers for a valuable consideration and without notice, unless the same be
recorded according to the law.
a. Conveyance, transfer or mortgages of real property are covered
b. Creditors and subsequent purchasers are protected
c. Have to prove that you purchased and without notice

vi. CA race-notice statute
1. Every conveyance of real property or an estate for years therein, other than a lease for a term
not exceeding one year, is void as against any subsequent purchaser or mortgagee of the same
property…in good faith and for valuable consideration, whose conveyance is first duly
recorded…
a. Everything real property is covered
b. Subsequent mortgagee or purchaser in good faith is protected (anyone who has no
notice) for valuable for consideration who first recorded the deed
c. Prove valuable consideration, first recordation, and good faith
h. Bad law: Messersmith v. Smith
i. An instrument that is not properly acknowledged is not entitled to be recorded
ii. CF(nr)(quitclaim)
iii. CSm1 (nr) (mineral lease; prob 12.5% royalty)
iv. CSm2 (nr) (1/2 interest in mineral rights) (impr ackn)
v. Sm2Se (nr) (1/2 interest in mineral rights) (BFP)
1. Sm1 (r)
2. Sm2, Se (r)
3. F (r)
vi. this is a race-notice statute territory, must be purchased by subsequent purchaser in good faith and for
valuable consideration
1. has to show that he took the conveyance in good faith, had not notice, was first recorded
before the original interest was, and that there was consideration
a. we know there was consideration, but we don’t know if he recorded first or had
notice or other title
vii. he didn’t meet requirements because he had nothing to give to Sealey because the other Smith had already
conveyed it
1. Conveyance to smith was defective because there was no notary
2. Seale thus didn’t meet the first to record requirements
3. Defective recording because you didn’t have a notary public
viii. if defect is clearly evident, you should notice that there is something wrong, that would lead you to inquire
into your seller to make sure that everything was done right
1. here, however, there was a latent defect and were not readily noticeable
a. in effect the holding of this case directly contradicts the purpose of recording statutes
ix. Frederick was the least cost avoider—he could have easily recorded deed and prevented it all
x. Most people think this case was decided wrong!
1. most jurisdictions require notarization before a document is recorded

2. notaries can’t however, guarantee the validity of a document and what is most common to
cover your ass is title insurance
i. Inquiry notice
i. Based on facts that would cause a reasonable person to make inquiry into the possible existence of an
interest in real property
ii. Harper v. Paradise (in GA—race-notice jurisdiction)
1. Harper conveyed to Maude and her kids, the conveyance was lost and a new conveyance was
drawn up after Susan Harper’s death
a. Because in the first deed Maude only had a life estate (the kids were remaindermen)
2. SM (for life, remainder to M’s children) (nr)
3. S’s heirs M (quitclaim replacement deed) (r)
4. M E (DOT) (r)
5. M (r) (original deed)
6. According to the court, did Ella have notice of the conflicting claim?
a. Yes because the second deed made note of the original deed
b. It was her duty to inquire into the details of the lost deed
7. purchaser has duty to inquire or do some investigation into any documents that were recorded
prior to the conveyance the purchaser is currently obtaining
a. she could have spoken to Maude and told her that her kids were supposed to inherit
by will
8. she doesn’t like it because it shifts the burden to the purchaser and allowing room for inquiry
shifts the burden of figuring out legitimacy to the buyer rather than the seller
iii. Waldorff Insurance v. Eglin Bank
1. Choctaw got mortgage for 850,000 (41k of it was left when Eglin foreclosed)
2. Waldorf was given condo in exchange to erase Choctaw’s debt
a. Choctaw later defaulted on mortgage which had been transferred to Eglin bank, Eglin
took all the condo’s Choctaw owned, and Eglin claimed that they now owned
Waldorf’s condo as well
3. in 1973 Waldorf got an equitable interest but didn’t record it only did so in 1976
4. bank did not have actual or record notice, but court ruled that they had inquiry notice
a. the actual possession of the property was sufficient inquiry notice because if they’d
gone to the condo and asked, he would have said he owned it
i. the fact that other units were simply rented is erroneous
b. you aren’t going to get ownership over his property just because going and asking
him would have been inconvenient
iv. Contractual purchaser protections
1. seller reps
a. representations that the sellers are going to make
b. seller promises that he has good title and that there are zero undisclosed interests
i. if seller breaches any of these reps they are held liable
2. seller indemnity
a. seller agrees that if they breach reps, the seller will indemnify the buyer from the loss
3. tenant estoppel
a. in most leases, there is a clause that says “upon 5 days prior notice” tenant must give
landlord an estoppel certifying what and how long the lease is
b. you sign it and then say something different, you are prevented because you are now
estopped
4. subordination and non-disturbance agreement
a. often a lease will require a tenant to give an SNDA which basically agrees that they
will subordinate their interest to a subsequent purchasers or banks as long as the new
purchaser promises not to kick him out or take away his possession (i.e. you have to
let your landlord sell the building to someone else, but the new landlord has to
promise not to kick you out just because he owns it now)
v. purchaser is presumed to have notice of facts that would be revealed through reasonable investigation
1. reference to unrecorded transaction in a recorded document gives purchaser inquiry notice of
facts that would have been revealed through reasonable follow up (Harper v. Paradise)
2. party in possession gives inquiry notice of claim to property (Waldorf Insurance)
j. Title Registration aka Torrens System
i. You’re registering title to Blackacre
1. you bring a law suit to determine the ownership of the property
2. court has a hearing, everyone with an interest will come forward, title is adjudicated and it is
registered officially stating that I own Blackacre
ii. thus if anyone wants to know who owns Blackacre, they can look it up in the track records and see that I
own it
iii. what if I want to sell it?
1. a new certificate would have to be issued, updating the certificate of title
iv. If I sell it to B and a third party claims that they have an interest that wasn’t disclosed and they weren’t
given fair notice to make their claim?
1. they are covered under the insurance indemnity fund
a. this is created under a registration fee for each of the titles to be registered
b. so they can get money for their interest
v. benefits
1. protects against unwanted claims
2. someone can’t come and claim they have title, increase marketability of the property
3. conclusively determines who owns the title and if they do come along they get paid off by the
insurance fund and its not your problem
4. promotes valid titles and gets rid of ancient claims, no one can come along in a year from
now and say “that’s really mine”
5. transfer is easier because you don’t have to do a crazy search through the records
6. you don’t need title insurance because the state is guaranteeing it
vi. why did it fail?
1. creates very expensive upfront cost
2. people still got title insurance because they wanted to cover themselves against other things
that come along with buying real property
3. inadequately trained people wound up botching the system and it was unsuccessful
4. only way it could have worked was if it had been mandatory like in England
vii. Certificate of Title update with each subsequent transaction
viii. Insurance indemnity fund
XVI. Law of Servitudes: Creation of Easements
a. Servitudes (private contractual interests that run with the land and bind successive owners)
i. Attaches to the land itself and will continue in the future, voluntary agreements
ii. easements
iii. covenants
1. real covenants
2. equitable servitudes
iv. If I don’t want you to use your land as a power plant, we can enter into an agreement where I give you
something in exchange for your promise not to build a power plant
v. I want to build a pool and I want to make sure u wont add an extension to your house that blocks the sun
from my pool, I request an easement, and not just against my neighbor, but against anyone in the future
who may own your house or property
1. If I sell my house to someone else and the pool is a big attraction, they want to be able to
enforce this promise too
b. Nuisance (judicial remedy for unreasonable use of land)
i. Branch of tort law that provides a judicial remedy in a way that interferes with the rights of neighbors
1. an implied agreement between everyone to use land in reasonable ways
c. Zoning (legislative method of regulating land use)
i. Deals with things that aren’t incredibly horrible, but something you don’t want in certain areas (like a
drive-in movie theater down the block)
ii. Residential zones, commercial zones, industrial zones
d. What is an easement?
i. Irrevocable interest in real property that entitles the owner to use or control property owned by another
ii. Compare how easements are different from:
1. profit: right to sever and take something from the land of another (ex: lumber, fish)
2. license: revocable right to use or enter the property of another (ex: dinner guests are licensed
to be in your house for the party only)
a. licenses are temporary
iii. affirmative easement
1. right to enter or use another person’s land
a. ex. A’s right to use a path on B’s property
iv. negative easement
1. right to restrict another’s use of his own land
a. ex. A’s right to prevent B from building a structure on B’s property that blocks A’s
windows
2. very limited number of them and for a variety of reasons courts don’t like to expand this
category
a. one can be a “right to sunlight” (i.e. the swimming pool)
v. Easement Appurtenant
1. benefits owner in the use of his own land
a. ex. A’s right to swim in B’s pool so that A won’t block B’s sun
b. transfers automatically with the land, unless purchaser is protected by a recording act
c. transferable, burdens and benefits pass to the future owners
2. when courts cant distinguish whether it is in gross or appurtenant, appurtenant usually wins
3. dominant estate
a. land that is benefited by the easement (B)
4. servient estate
a. land that is burdened by the easement (A)
vi. easement in gross
1. benefits owner personally, and not in capacity as land owner
a. ex. A’s right to swim in B’s stream, when A lives in another town
b. generally assignable, but see Miller v. Lutheran Conference
2. involves only the servient estate (B)
e. creation of easements
i. express grant
1. “I give you the right to cross my property to get to the public road”
2. has to satisfy SOF—be in writing
3. should record easement with county clerk’s office
a. puts all subsequent purchasers on record notice that you will be subject to the
easement
ii. Estoppel
1. (Holbrook)
iii. Implication
1. from prior use (Van Sandt)
2. from necessity (Othen)
iv. Prescription (Othen and Miller)
1. similar to AP
f. when licenses may become irrevocable
i. if you have a license to enter land together with profit to take something off of the land, it is generally
irrevocable
1. the only way you can get the water, oil, whatever, is to cross the subservient land
ii. through estoppel
1. if the licensee has reasonably relied on the license or the licensor and has materially changed
its position
a. it would be unfair to revoke the license
2. Holbrook v. Taylor
a. a license cannot be revoked after the licensee has erected improvements on the
land at considerable expense while relying on the license
b. 1942 appellants purchased property and made a road cut so that they could get to the
mines (road built in 44)
c. in 64 Taylor bought adjoining tract of land, built residence upon it and had used the
private road by permission of the appellants to bring up materials and to get back and
forth to home
d. Holbrook blocks the road after a dispute arises
e. Four ways to create easement in Kentucky
i. Express written grant
ii. Implication
iii. Prescription
iv. Estoppel
f. Taylor relies on prescription and estoppel to claim that he has an easement
i. Prescription
1. must show that owner that dominant land owner had used it under a
claim of right, adverse to the owner of the soil, used over the land of
another peacefully and openly for at least 15 years
2. he was unable to establish that it was continuously used for over 15
years and was not adverse
ii. estoppel
1. court says that where a licensee has exercised the privilege given to
him and rendered improvements on the land makes the license
irrevocable
2. consent or at least tacit approval to use the land creates estoppel
remedy for irrevocability
a. we cant let you change your mind now, it would be too hard
on Taylor
3. because of estoppel the Taylors now have an easement
iii. restatement of servitudes provides that servitudes can be created by estoppel
1. silence or assent can make a license irrevocable, thus making it an easement
2. not all courts agree with this (Henry v. Dalton on 680)
a. easements can be given by tacit consent and you chose to assume the risk knowing
that that license could be revoked and you shouldn’t get any remedy
g. easement by implication
i. Van Sandt v. Royster
1. an easement may be implied for a grantor or grantee on the basis of necessity alone
2. sewage drain was shared by several lots (two homes sewage drains connect to the public city
sewer underneath Van Sandt’s home)
3. defendant is not the original homeowner, but the original homeowner built the sewer before
any of them came in
4. Van Sandt claims that he didn’t allow an easement and even if there is one he isn’t subject to
it because it was never recorded
5. implied grant v. implied reservation
a. implied grant is an easement that is in favor of the purchaser
i. Royster has the benefit of the sewer pipe
b. implied reservation is an easement where grantor keeps for themselves the dominant
estate and gives the deed for the servant estate to the purchaser
i. Van Sandt has to allow Royster to use the sewer pipe
6. court discusses a quasi easement
a. when an owner gives up one part of his land for the benefit of another part of the land
b. it is not a real easement because an easement must have 2 pieces of land (owned by 2
different people)
c. quasi-dominant (gray)
d. quasi-servient (van sandt and royster)
ii. implied easement: are only created if parties intended the easement when the easement would have
hypothetically began
1. so we look at the intent of the original seller and buyer
iii. easement implied from prior use
1. common grantor
2. existing use of one parcel to benefit another
3. use must be apparent (inquiry notice)
4. reasonably necessary to the dominant land’s use and enjoyment
a. note: greater degree of necessity required for implied reservation than for implied
grant
iv. future owners of the estate are going to bare the burden of the easement unless they don’t have notice of it
v. illustrates the implication of an easement from the existing or prior lease
vi. the intent of the parties at the time that the parcel was subdivided must have intended that the easement
continued and that the private use continues
vii. implication of necessity
1. if grantor sells part of the land and keeps the other part and the easement over the part that is
sold is necessary to enjoy the land that was kept
2. Othen v. Rosier
a. Guy sold a bunch of land to different people, transferring land to both Othen and
Rosier in chunks
b. Both parties used small road to get to the main road, but then defendant wiped out the
road and claims that the plaintiff is required to maintain the upkeep for this road
c. Othen is the dominant estate and the servient is Rosier
i. It is a affirmative easement appurtenant
ii. Othen wants to cross Rosier’s land to get to the road
d. Othen claims that it was implied by necessity and by prescription (he’s used it so
long he gets it almost through AP)
i. Would have to know if the land was owned by the same person
ii. If the easement was necessary rather than just convenient
iii. Texas follows the strict necessity view
1. adhered strictly to statute of frauds and will only do it if there is strict
necessity
2. if this court had followed Van Sandt, they may have found a quasi-
easement but he would have to prove that the existing use was
apparent
3. when the original owner owned all the land, that road was not a
necessity to him, thus at the time of severance the road could not
possibly have been a necessity
e. maybe he could have gotten the land through adverse possession—sleeping theory,
they could have kicked Othen off during the 50 years he was using the road and it
hadn’t bothered him then—earning theory, statute of limitations
f. prescriptive easement
i. whole problem in this case is statute of limitations, he couldn’t establish that
there was a use or necessity at the time of establishment
1. we allow it to honor the expectations of the possessor
ii. similar to adverse possession
1. actual use
2. open and notorious use
3. continuous and uninterrupted for the statutory period
4. hostile or adverse
a. consent defeats adversity (you put up a sign allowing the
trespass, you’ve given them a license and they can’t get an
easement)
iii. Restatement of servitudes § 2.17: servitude is acquired through prescription

if owner does not effectively interrupt use prior to the end of the statutory
period
g. Easement implied by necessity (landlocked setting):
1. Unity of ownership
2. Easement is necessary, not mere convenience
3. Necessity existed at time of severance of the two estates
a. here it didn’t occur at the time of severance because the guy
could easily have built another road
ii. terminates upon termination of necessity
h. there are certain jurisdictions that can condemn a right of way on your property
i. gain a right to continue using it just by the fact that you have used it
3. in Van Sandt, what if the city had constructed a public sewer on the other side of lot 4?
Would Bailey have to connect to that sewer instead of being able to use the continued
easement over the other lots?
h. assignability of easements
i. actual notice
ii. inquiry notice
iii. record notice
iv. so long as the burden is reasonable, the easement is assignable to others
1. if you split your land among 30 buyers, 30 different trespassers may break the reasonableness
of the easement
v. Miller v. Lutheran Conference & Camp Association
1. rights of Millers on the artificial lake they created because of their spring ice company
2. is the original easement granted by Pocono spring to Frank Miller gross or appurtenant (its in
gross because it benefited him in his capacity as a business man, not to benefit the use of a
parcel of land)
a. Suit for injunction saying that Lutherans could not be conveyed bathing rights
because the guy that gave them the rights didn’t have the rights themselves
b. Rufus didn’t have the rights to pass to the Lutherans
3. court says there was no explicit grant of bathing, but you used it long enough that it is a
prescriptive easement
a. was open, continuous, adverse etc.
b. if not it still could have been easement by estoppel
i. it would be unjust to prevent them from using the lake after they’d depended
on it for so long
4. court ruled that the burden created by dividing the easement cannot be greater than what was
originally intended
a. courts solution is not to allow unlimited divisibility, but the rights to the lake have to
be used as if it is “one stock” agree who it gets divided to, and they are forced to
agree
i. then you must internalize the externalities
5. BOTTOM LINE: the license to the Lutherans was not valid because it was improperly
divided because you need the consent of both parties to act as one stock—the one stock rule
a. Force you to act as one person
b. But what are some other solutions?
i. Could split it into quarters and give them each the rights to their own side
i. Transfer of Easements
i. easement appurtenant:
1. assignment
a. benefit and burden pass automatically to assignees, unless purchaser has no notice
2. division
a. if dominant estate is subdivided, each resulting parcel has right to use easement on
servient estate so long as do not overburden servient estate
ii. easement in gross
1. assignment: assignable, unless contrary to parties intent
2. division
a. divisible unless (a) contrary to intent of original parties or (b) places an unreasonable
burden on the servient estate
b. divisible if used as “one stock”
j. termination of easements
i. merger
1. if the own of the estate becomes the owner of the servient estate
2. owner divides the estate, terminated unless the easement is re-granted
ii. release
1. easement can release it in writing and it usually is recorded in the clerks office
iii. abandonment
1. more than just non-use of the easement, but some physical act that there is an intent to
abandon the easement
iv. prescription
1. servient owner wrongfully lose the right to use the eastement
v. condemnation
1. if government takes your land through eminent domain

vi. destruction
1. is servient state is destroyed you lose benefit
vii. recording act
1. if easement is not recorded you can lose it if the servient estate is purchased by a bona fide
purchaser who had no knowledge of the unrecorded easement
viii. easement by necessity terminates as soon as the necessity is no longer a necessity
ix. Presault v. US
1. an easement is terminated by abandonment when nonuse is coupled with an act manifesting
the easement or a purpose inconsistent with its future existence
2. RR had easement on Presault’s land but RR is abandoned so the easement is dormant
a. Government act mandated that abandoned railroads were to be hiking trails, now tons
of people are trespassing on their land every day and wander off the trail and all over
their property
3. court rules it is an easement because the RR must have taken the smallest form of estate that
it needed, the scope of this easement does not stretch as far as to a hiking trail because it is
inconsistent with the original grant
4. could easement be transformed from a railroad into a public trail?
a. Court found that it was not in the scope of the easement
b. Terms are consistent with the grant if they are reasonably foreseeable at the time of
the grant
i. A public hiking trail was not
5. easement had been abandoned
a. taking again 11 years after would be a taking
k. negative easements
i. right to prevent someone from using their own land in a certain way
ii. English! dominant owner can prevent the servient owner by “laws”:
1. Light—stop a neighbor from blocking your windows
2. Air—stop a neighbor from blocking your breeze
3. Water from artificial stream—stop neighbor from blocking your water
4. Support—cannot remove substantial support beams which support your property
iii. America has a few more
1. view—can’t block your view
2. solar—can’t block your solar panels
3. conservation—can’t use up all the resources you share
a. owner grants to public body negative easement on themselves to preserve the land
and not build on it
i. reward people for conservative use of property as well (tax breaks)
iv. courts have relied on equitable servitudes and restrictive covenants
1. instead of a grant of a right to prevent something, it is a promise not to do something
2. most interesting has been the conservation easement
l. easement review: HOW TO GO THROUGH EASEMENT ON EXAM!
i. determine whether an easement has been created by:
1. grant
2. estoppel (Holbrook)
a. irrevocable if licensee expends money or constructs improvements in reasonable
reliance on statement of licensor
3. implication from prior use (van sandt)
a. common grantor
b. prior use
c. apparent (provide inquiry notice)
d. reasonable necessity
4. implication from necessity (othen)
a. common grantor
b. strict necessity (nor mere convenience)
c. necessity existed at time of severance
d. terminates upon termination of necessity
5. prescription (othen, miller)
a. actual use (no negative easement)
b. open and notorious (provide inquiry notice)
c. continuous for statutory period (same as AP)
i. defeated only if owner effectively interrupts use (restatement)
d. adverse/hostile/claim of right=without consent
i. exclusivity=owner’s use may defeat adversity (othen)
ii. classify the claimed or established easement
1. affirmative or negative?
2. appurtenant or in gross?
iii. Determine whether the easement can be transferred:
1. appurtenant
a. An easement created to benefit another tract of land, the use of easement being
incident to the ownership of that other tract.
2. in gross
a. An easement benefiting a particular person and not a particular piece of land. The
beneficiary need not, and usually does not, own any land adjoining the servient
estate.
iv. determine whether the easement has terminated
1. abandonment
a. more than non-use, physical act and intent to abandon (presault)
v. has the easement exceeded its original scope?
1. scope may be adjusted if change is consistent with the terms of the original grant (reasonably
foreseeable) (presault)
m. Covenants
i. Covenant=promise regarding land that runs to successive owners of the promisor’s land
1. not that you are granting an interest in property but rather you are making a promise not to do
something (or to do something)
2. example: O promises to pay dues to maintain a neighborhood pool
ii. covenants have both a burden and a benefit, often attached to same parcel
1. burden=promise to pay dues attached to O’s land
2. benefit=right to use pool attached to O’s land
iii. goal is to make the covenant run with (or attach) to the land
1. if O sells his house to X, we want to make sure X will pay the dues for the pool and also will
be entitled to use the pool
iv. covenants do not automatically attach to the land and run with the next purchaser but in order to do it you
must satisfy all the technical elements
v. restrictive covenant
1. promise to refrain from doing something related to land
a. “I promise not to build for commercial purposes on my land.”
vi. affirmative covenant
1. promise to do something related to land
a. “I promise to maintain our common fence”
vii. Originally suit could only be brought between the parties of the contract
1. now, anyone with an actual interest can sue
viii. Two types:
1. Real covenants: covenant enforceable at law (money damages). Elements:
a. writing
b. intent to bind successors
i. usually determined based on the written language used in the agreement itself
c. touch and concern

d. privity (shared interest in land)
i. horizontal privity (burden)

1. privity between original parties
2. shared interest in land other than covenant (grantor/grantee,
landlord/tenant, mortgagor/mortgagee es muy importante!!)
3. required for a successive owner to be burdened but not required for a
successive owner to have a benefit
4. not enough for A and B to be neighbors
ii. vertical privity (benefit and burden)
1. privity between promisor and assignee
2. successor to original promisor’s interest in land
2. if you can’t meet the requirements of a real covenant: get yourself to court and try to get an
equitable servitude!!
3. equitable covenants
a. covenant enforceable in equity (injunction)
4. both promise to do something or not do something related to land, only difference is:
a. RC have more requirements
b. The remedies you get if you sue
ix. Tulk v. Moxhay
1. a covenant will be enforceable in equity against a person who purchases land with notice of
the covenant
2. variety of covenants in deed for Leicester Square property to be used as a garden with a pretty
fence around it
3. is Tulk entitled to sue Moxhay in order to enforce the negative covenant?
a. What do we need to enforce this as a real covenant?
i. Writing—yes
ii. Intent—yes
iii. Touch and concern—always
iv. Horizontal privity—yes original parties were in a grantor grantee relationship
v. Vertical privity—yes elms sold to Moxhay
b. This case in the US would have been upheld as a covenant!
c. In England, though, they limited horizontal privity to grantor/grantee relationship, so
the covenant did not run at law in England
XVII. equitable servitude
a. elements
i. writing (unless implied from general plan)
ii. intent
iii. touch and concern
iv. notice
1. actual
2. record
3. inquiry
v. standing
1. 3rd party beneficiary (privity) (Neponsit)
2. Must prove that although you weren’t a part of the contract you were a 3rd party beneficiary to
the covenant and it was created to benefit you
vi. privity is not required!
b. Now can argue both equitable servitude and real covenant in the same case!
i. and the 3rd restatement made them both basically the same thing
ii. Sanborn v. McLean
1. an equitable servitude can be implied on a lot, even when the servitude is not created by a
written instrument, if there is a scheme for development of a residential subdivision and the
purchaser of the lot has notice of it
2. she wants to build a gas station on a block in a residential area and a gas station would fall
under the category of nuisance
3. it is a negative easement because many of the homes around this property have negative
easements
a. came from a general plan or a common scheme

i. developer planned on imposing identical restrictions on everyone
4. law varies from jurisdiction to jurisdiction
a. you should be entitled to rely on your deed but on the other hand, you cannot be
willfully blind (look at an entire neighborhood and wonder why you’re the first
commercial property in the area)
c. Creation of covenants
i. Real covenant=writing required
ii. Equitable servitude=can be implied from a general plan or common scheme
1. reciprocal negative easement=implied equitable servitude
iii. restatement=easements and covenants can be created through writing, common scheme, prior use,
necessity, prescription and estoppel
iv. Neponsit v. Emigrant Industrial Savings Bank
1. a covenant to pay money for improvements or maintenance done in connection with, but not
upon the land which is to be subject to the burden of the covenant does touch and concern the
land, and a homeowners association can rightfully enforce the covenant
2. covenant to run with the land to pay $4/year for improvements of parks or there would be a
lien put on the property
a. ruling: subsequent purchasers must pay as well because it attaches to the land
3. two issues: touch and concern and privity
a. covenants with the land almost ALWAYS touch and concern
i. b/c covenants directly effect the way you use the land
ii. affirmative covenants are personal and not a real covenant
1. a promise to pay for something in connection with the land is the
same as saying you will do something with the land
2. restatement is clear: consider public policy
4. test: the covenant must affect the parties as owners of particular parcels of land and not
merely as members of the community, such as taxpayers or owners of the land
v. Restatement § 3.1: a servitude is valid unless it is illegal, unconstitutional or violates public policy
1. servitudes that violate public policy include
a. arbitrary, capricious or spiteful
b. unreasonably burdens a fundamental constitutional right
c. unreasonably restraint on alienation
i. things that indirectly alienate are ok, but direct alienation isn’t
d. unreasonable restraint on trade
e. is unconscionable
d. scope of covenants
i. Can we refuse to enforce agreements simply because we don’t like them? Does it matter that they bind
future owners and successors not just the current owners?
1. Hill v. Community of Damien
a. Ambiguous restrictive covenants should be construed in favor of the free use and
enjoyment of property and against restrictions; restrictive covenants with a
discriminatory effect violate the FHA
b. People dying of AIDS living in a single family dwelling in Albuquerque and the
neighbors bring complaint alleging “heightened traffic” because it is a group home,
and a single family living in the home
c. Court finds that it is a residential use because they do many things together and act as
a family (share meals, support each other go to church together)
d. What is a family?
i. Not more than 5 unrelated people living together in a dwelling can constitute
as a family
ii. Restrictive covenants that mandate single family use permit families to
include group homes and can occupy as a single family unit
e. Court claims that the increased traffic is completely irrelevant
i. Covenant wasn’t directed to lower the amount of cars on the road or traffic to
the house
f. Violation of the FHA (they really just don’t want people with AIDS)
i. three distinct claims under the FHA
1. discriminatory intent
a. traffic issue only came up once the neighborhood discovered
that there were residents with AIDS living there
2. disparate impact
a. if the covenant is interpreted the way the neighbors want it
to, it discriminates against the handicapped
3. reasonable accommodation
a. does not need to be directed at the handicapped but must still
be burdensome on them and still must make reasonable
accommodation for them
b. reasonable accommodation is allowing them to stay
2. Shelley v. Kramer
a. Judicial enforcement of a restrictive covenant based on race constitutes

discriminatory state actions, and is thus forbidden by the equal protection clause of
the fourteenth amendment
b. Landmark case on distributing covenants
i. Negative easement was against selling the land to any black people for 50
years
1. “no part of said property or any portion thereof shall be, for said term
of fifty-years, occupied by any person not of the Caucasian race.”
c. Necessary elements:
i. Intent
ii. Writing
iii. Touch and concern (she thinks its arguable I think it is!)
1. Rose argues it doesn’t because a person’s race has no obvious
connection to the land’s uses normally thought of to touch and
concern the land
iv. Vertical privity
v. No horizontal privity
1. thus not a real covenant may be able to prove equitable servitude if
you can prove it touches and concerns
a. but then must prove notice
d. if this had been government action, it would clearly be invalid
i. cannot be enforced by court because court is the arm of the state
ii. judicial enforcement=state action and that’s prohibited by the 14th
amendment
e. Restatement:
i. direct restraint on alientation and violates public policy
f. NOW COURTS GO TO THE FHA NOT THE CONSTITUTION ANYMORE!
ii. Termination of covenants
1. expiration
2. release
3. abandonment
4. merger
5. estoppel
6. prescription
7. condemnation
8. recording
9. changed conditions
iii. Western Land v. Truskolaski
1. a restrictive covenant establishing a residential subdivision cannot be terminated as long as
the residential character of the subdivision has not been adversely affected by the surrounding
area, and it is of real and substantial value to the landowners within the subdivision
2. land was meant to be used as residential area, land is now on main thoroughfare of Reno, he
wants to build a supermarket on it and Western Land says NO!
a. however its not UNsuitable for residential land
i. “even though nearby avenues may become heavily traveled thoroughfares,
restrictive covenants are still enforceable if the single-family residential
character of the neighborhood has not been adversely affected, and the
purpose of the restrictions has not been thwarted”
b. Zoning ordinances do not trump prior private covenants
iv. Changed conditions
1. covenants that run with the land will do so unless there is a fundamental reason that the
covenant is no longer functional (every parcel around this one for 2 miles is commercial and
you want to build a supermarket)
2. modification: covenant will not be modified even if the value of the restricted parcel is
reduced, so long as
a. the original purpose has not been thwarted and
b. the covenant remains of substantial value to the other homeowners (Western Land)
3. holdouts: restrictive covenants enforced by injunction unless unconscionable or oppressive
a. part of the point of Rick v. West is to explain that restrictive covenants will be upheld
by injunction unless they are unconscionable or oppressive
4. restatement §7.10 covenant may be modified when a change has taken place that makes it
impossible as a practical matter to accomplish the original purpose of the covenant
a. compensation for harm to beneficiaries may be awarded
XVIII. Common interest communities (condos, co-ops, homeowners assoc.) CIC
a. by interest in the community, you are buying into the many amenities which common interest communities share
b. most states have statutes that govern CICs
i. must have declarations that set forth rules, obligations and restrictions on individual homeowners
c. in most CICs the board is an entity created specifically to enforce the restrictions or servitudes set forth in the
declaration
i. allowed to sue on the behalf of the homeowners
ii. board is usually permitted to adopt new regulations reasonably necessary to manage the property and
prevent unreasonable interference with enjoyment of the property
iii. almost always bind future owners and run with the land because:
1. they satisfy the privity requirement
2. they satisfy the touch and concern requirement
3. all original owners by their land from the original developer so they all have horizontal
privity and relationship other than the covenant
a. vertical privity is automatic because that’s how land is sold
b. ALL CICs have AUTOMATIC HORIZONTAL AND VERTICAL PRIVITY!
4. affirmative covenants in CICs always touch and concern (just like negative covenants
everywhere)
d. big issue with CICs is that you give away certain rights at the door
i. Nahrestedt v. Lakeside Village Condo Assoc.
1. the enforceability of restrictions on the ownership and possession of pets should be decided in
a trial court after evidence is heard as to whether the restriction was reasonable as applied to
the particular facts of a case
2. Woman has three cats and buys a condo not knowing that there was a negative covenant
against cats in the condos
3. She wanted the restriction against animals repealed
4. general rule in CA is that recorded declarations are enforceable unless they are unreasonable
5. question then becomes “is a restriction against cats reasonable?”
a. court in the past has ruled covenants unreasonable and therefore unenforceable in two
scenarios: a hidden satellite dish, and a brand new pick up truck/camper in areas
where the two were not allowed because as it applied to them the items were not
unsightly
b. Court says it doesn’t matter if its unreasonable to you, it matters if its unreasonable
for everyone and it is then that the court will not enforce the covenant
6. Court finds that there is no federal or state constitutional right to be a pet owner in
condominiums and therefore since the writing reflected the interest of the community, she is
not allowed to have pets in her home
ii. Mulligan v. Panther Valley Property Owners Assoc.
1. Panther Valley (CIC) enacts a covenant that no tier 3 felons under Megan’s Law can live in
the community (most likely to repeat sex-offenders)
2. Mulligan challenges this on the grounds that its unreasonable because it violates public policy
3. Used reasonableness instead of business judgment rule
4. Reasonable because it could hurt the community for sex offenders to know that they were
allowed to be there
XIX. eminent domain and public use
a. forced transfer of private property to public either to themselves or to someone else

i. there must be just compensation for any exercise of eminent domain
ii. government has the right to take private property as long as there is just compensation
1. given this right because there has to be a way for the government to build roads, train tracks,
hospitals, schools, etc.
iii. must give the compensation because why should one person have to bear the burden of the entire
community needing a rail road or a hospital? He must be paid!
iv. Government will only use eminent domain power if it is worth the price to them
b. Kelo v. City of New London
i. Taking of private property for use by other private citizens pursuant to an economic development plan
intended for a public purpose are valid under the Fifth Amendment
ii. City of New London revitalization project wants the plaintiffs to sell their homes to the government
because of eminent domain
1. claimed that the land is not going to be used for public use
iii. what is public use?
1. public use is transfer of private property to public ownership
2. private property condemned for public use but will be owned by a private entity (ex. a
railroad is privately owned but the public uses it)
3. transfer private property to other private entities as part of a program designed to benefit the
public (public purpose)
a. this is how the City is using public use in this case
iv. development plan was not adopted to benefit a particular class, but designed to rejuvenate the entire area
1. is the holding consistent with the supreme court’s prior precedent?
a. Relied on the Hawaiian case where Hawaii was taking land from private landowners
and distributing it to other private owners
i. Wealthy landowners had owned 90% of the land and Hawaii took it upon
itself to others to spread the land wealth
1. court ruled that this was a public purpose because there was a
significant public harm due to inflated real estate prices
2. court is not here to decide if this is desirable to the community, court even thought their
homes are in perfect condition the overall area needs this revitalization and you need to take
one for the team
v. just compensation=market value of a willing seller and buyer

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I. Acquiring Property by Capture

e. Malicious interference: Keeble v. Hickeringill

d. how are externalities related to the problem of common property?

ii. Defendants were convicted of trespass but was overturned

iv. What future interests follow the estate?

e. Fee simple determinable

a. fred to lucy so long as no liquor is served on the property

2. to Lucy, but if Blackacre is ever used as a factory, then to Mike

1. present estate: A has a life estate

iii. if B never has a kid, it reverts back to O

a. Present estate: FSSEL

i. several waves of reform over the past couple of years

iii. Requires 4 unities

d. Court determined that an MBA is not considered “property” because it wasn’t

XIV. Landlord Tenant Law

3. they are allowed to arbitrarily refuse or accept a proposed assignee

iv. Landlord has duty to act if:

c. Have to prove that you purchased and without notice

1. most jurisdictions require notarization before a document is recorded

iii. Restatement of servitudes § 2.17: servitude is acquired through prescription

1. if government takes your land through eminent domain

c. touch and concern

i. horizontal privity (burden)

a. came from a general plan or a common scheme

a. Judicial enforcement of a restrictive covenant based on race constitutes

a. forced transfer of private property to public either to themselves or to someone else

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